This week's issue examines procedural default in the Eleventh's Circuit's Kennedy v. Hopper, as well as those cases currently pending before the Supreme Court.

In Focus

Kennedy v. Hopper Eleventh Circuit denies relief on claims that statements Kennedy made to police were involuntary as the panel holds the issue defaulted.

"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law . . . ." Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). "[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas . . . ." Id. at 735 n.1, 111 S. Ct. at 2557 n.1; see Teague v. Lane, 489 U.S. 288, 297-99, 109 S. Ct. 1060, 1068-69 (1989) (analyzing Illinois law to determine whether a claim was defaulted under Illinois law when the claim was not raised in the Illinois courts); Chambers v. Thompson, ___ F.3d ___, No. 96-8905, slip op. at 3804 (11th Cir. Aug. 17, 1998); Kennedy I, 54 F.3d at 684. In capital cases - as in all criminal cases - Alabama law effectively requires a petitioner to preserve any federal constitutional error by objection at trial, and to pursue that assertion of error on direct appeal, if the error is capable of being raised at those times. See Ala. R. Crim. P. 32(a)(5) (barring collateral review of issues not so raised); Cain v. State, 712 So. 2d 1110, 1112 (Ala. Crim. App. 1997); Horsley v. State, 675 So. 2d 908, 909 (Ala. Crim. App. 1996); Brown v. State, 663 So. 2d 1028, 1030 (Ala. Crim. App. 1995). Claims that may be raised in direct proceedings and are not raised there are accordingly unexhausted and later procedurally barred from federal habeas corpus review. See Magwood v. Smith, 791 F.2d 1438, 1444 (11th Cir. 1986) (interpreting Alabama procedural rules). Here, every subclaim is barred for failure to raise it on direct appeal. . . .

Kennedy argues, based on this history, that this issue of the voluntariness of his statements was raised at trial, and that the adverse ruling list alone suffices to raise the issue on direct appeal. Therefore, in Kennedy's opinion, this subclaim is both exhausted and preserved for federal review. We disagree. Even if this subclaim were raised at trial, which we seriously doubt, for the reasons that follow we cannot conclude that it was raised on appeal in accordance with Alabama law.

First, the Alabama Court of Criminal Appeals has declined at least one appellant's invitation to put in issue all adverse rulings of the trial court listed under Rule 28(a)(7). Haney v. State, 603 So. 2d 368, 401 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992). The court indeed rooted its refusal in explicit disapproval of Kennedy's current strategy: "[T]he motive of the appellant, in raising these matters in this manner, is to lay the groundwork to avoid the possibility of being procedurally barred from raising certain issues in future habeas corpus proceedings in federal court. This activity smacks of `sandbagging,' which has been strongly condemned by the [U.S.] Supreme Court . . . ." Id. (citation omitted).

Second, the Alabama courts' application of the procedural bar rule comports with this refusal to treat adverse ruling listings as issues on appeal. In addressing petitions for collateral relief, Alabama courts have consistently deemed issues not raised on appeal to be procedurally defaulted under Ala. R. Crim. P. 32.2(a)(5), which bars relief on grounds that could have been, but were not, raised on appeal. See, e.g., Brown v. State, 663 So. 2d 1028, 1030 (Ala. Crim. App. 1995); Hays v. State, 599 So. 2d 1230, 1237 (Ala. Crim. App. 1992); Thompson v. State, 581 So. 2d 1216, 1218-19 (Ala. Crim. App. 1991). If Kennedy is right that an adverse ruling listing raises an issue on appeal, Rule 32.2(a)(5) would never bar a claim. Rather, the appropriate bar would be Rule 32.2(a)(4), which prohibits relief in collateral proceedings on any ground that was raised on direct appeal. We have located no case holding an issue to be barred under Rule 32.2(a)(4) because it was suggested by a listed adverse ruling. Finally, Alabama appellate procedure rules explicitly require a statement of the issues presented for review. Ala. R. App. P. 28(a)(3). When Alabama courts on collateral review identify the issues raised on direct appeal, they refer to this listing of issues on appeal, not the adverse rulings list. See, e.g., Thompson, 581 So. 2d at 1218 n.2, 1219 nn.3 & 4.

For all these reasons, we hold that listing an adverse ruling under Ala. R. App. P. 28(a)(7) does not, under Alabama law, raise an issue on appeal such that the issue is both exhausted and preserved for federal review. Because apart from the adverse ruling list Kennedy did not hint on appeal that his alleged mental handicap rendered his statements involuntary, this subclaim is procedurally defaulted.

Capital Cases

Kennedy v. Hopper (see above)

Prisoner's Rights and Police Misconduct Cases

Walden v. Carmack Eight Circuit holds police officials were entitled to qualified immunity on claims arising out of execution of a search warrant and refusal to accept property bail bond.

Jennings v. McCormick Fifth Circuit holds that suit may proceed in "this pro se 42 U.S.C. § 1983 action against correctional officer James McCormick alleging that the officer violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to excessiveness of force."

Parrish v. Alabama Dept. of Corrections Eleventh circuit terminates prison overcrowding order citing as its basis the PLRA

Liebe v. Norton Eighth circuit holds that jail official's actions did not amount to deliberate indifference to suicide risk and he was entitled to qualified immunity; county was entitled to summary judgment on claim it failed to properly train jail officials to prevent suicide.

The Supreme Court has agreed to take certiorari on the following cases potentially relevant to capital litigants for the current term:

Jones v. United States Court below: 132 F.3d 232 (5th Cir 01/05/98). Questions Presented: At issue in this criminal law case is (1) whether the defendant was entitled to a jury instruction that the jury's failure to agree on a sentencing recommendation automatically would result in a court-imposed sentence of the life imprisonment without possibility of release; (2) whether a reasonable likelihood that the jury instructions led the jury to believe that deadlock on he penalty recommendation would automatically result in a court-imposed sentence less severe than life imprisonment; and (3) whether the court of appeals correctly held that the submission of invalid non-statutory aggravating factors was harmless beyond a reasonable doubt. The court below held that the sentencing provisions under the Federal Death Penalty Act, 18 USC s 3591-97 (1994) were constitutional and the trial court did not commit plain err.

Strickler v. Greene Court below: 149 F.3d 1170 (4th Cir 06/17/98). At issue in this criminal law case is (1) whether the State violated Brady v. Maryland, 373 US 83 (1963), by not disclosing statements and letters written by a witness; (2) whether the non-disclosure of the materials and the State's representation that its open file contained all Brady materials establishes 'cause' for failing to raise a Brady claim; and (3) Whether the defendant was prejudiced by the non-disclosure. Under Brady and its progency, a prosecution's failure to disclose "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment..." The court below held that the defendant failed to establish a Brady claim and the non-disclosure of evidence did not establish prejudice.

Mitchell v United States Court USAP3 Questions Presented: . Should this Court hear this case to determine whether the Third Circuit's opinion that a criminal defendant has no Fifth Amendment right to remain silent at sentencing , which is in apparent conflict with this Court's established precedent in Estelle v. Smith, 451 U.S. 454 (1981), was correctly decided? B. Should this Court hear this case to resolve a conflict among the various circuit courts of appeal on the issue of whether a criminal defendant retains his Fifth Amendment right to remain silent at sentencing?

Holloway v. United States Court below: U.S. v. Arnold, 126 F.3d 82 (2nd Cir.(N.Y.) Sep 16, 1997)

(dissent). Questions Presented: Does the Court of Appeals holding that conditional intent is included within the legal definition of specific intent in the amended carjacking statute violate both fundamental principles of statutory construction and petitioner's constitutional rights to due process of law?

Knowles v. Iowa Court below: State v. Knowles, 569 N.W.2d 601 (Iowa Oct 22, 1997). Questions Presented: Can a State, consistent with the Fourth Amendment, enact a statute conferring to police a blanket authorization to conduct a full-blown search of a motor vehicle upon issuance of a traffic or equipment citation?.

Mosely v. United States Court below: United States v. Mosley, 126 F.3d 200 (3d Cir. 1997). Questions Presented: 1. Whether Bank Larceny, in violation of 18 U.S.C. 2113(b), is a lesser included offense of Bank Robbery in violation of 18 U.S.C. 2113(a), as a matter of law, pursuant to the textual "elements" test adopted by the United States Supreme Court in Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443 (1989). 2. Whether the admission at trial of testimonial and documentary evidence regarding petitoner's propensity to commit crime and his bad character and lack of good character pursuant to Fed. R. Evid.404 (b) and 403 deprived petitioner of his Sixth Amendment right to a fair trail.

Jones v. United States Decision on Appeal: United States v. Oliver, 116 F.3d 1487 (9th Cir. 1997) unpublished, prior decision United States v. Oliver, 60 F.3d 547 (9th Cir. 1995). Questions Presented: Did the Ninth Circuit Court of Appeals violate petitioner's right to due process by sentencing him to a maximum term when he had no notice that he was facing such a term? Was conduct attributed to petitioner in the trial sufficient evidence of a substantial effect on interstate commerce such that it would invoke Congress' authority under the Commerce Clause? Did petitioner's conviction violate the Fifth Amendment prohibition against double jeopardy?

Reno v. American-Arab Anti-Discrimination Decision on Appeal: American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir.(Cal.) Nov 08, 1995) , American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367 (9th Cir.(Cal.) Jul 10, 1997), American-Arab Anti-Discrimination Committee v. Reno, 132 F.3d 531 (9th Cir. Dec 23, 1997). Questions Presented: [1.] Whether the courts below had jurisdiction to entertain respondents' challenge to the deportation proceedings prior to the entry of a final order of deportation. [2.] Whether the courts below erred in concluding that respondents had shown a likelihood of success on their claim of belief that respondents had carried out fundraising activities for a foreign terrorist organization.

City of West Covina v Perkins, et al., Lawrence Decision on Appeal: Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir.(Cal.) May 09, 1997). Questions Presented: 1.Whether the procedural component of the Fourteenth Amendment's Due Process Clause requires a police department to provide legal advice and guidance concerning how to pursue post-deprivation judicial remedies for the return of property seized during the execution of a search warrant. 2. Whether the balancing test set forth in Mathews V. Eldrige, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed 2d 18 (1976) should be used by federal courts to expand procedural rights in the context of post-deprivation remedies.

United States v. Rodriquez-Moreno. Questions Presented: Whether venue in a prosecution for using or carrying a firearm during and in relation to a crime of violence under 18 U.S.C. 924 (c)(1) is proper in any district in which the defendant committed the underlying crime of violence, even if the defendant did not use or carry the firearm in that district.

Minnesota v. Carter Court below: State v. Carter, 569 N.W.2d 169 (Minn. 1997). Questions Presented: Whether an invitee into a residence, whose sole purpose for being present is to assist the resident in an illegal activity, has a legitimate expectation of privacy while within the residence under the Fourth Amendment to the United States Constitution. Whether a police officer's non-enhanced use of his natural senses to observe criminal activity in a residence from a public area outside the curtilage of the residence is a search under the Fourth Amendment to the United States Constitution.

Conn v. Gabbert Court below: 131 F.3d 793 (9th Cir 09/11/97). Questions Presented: At issue in this civil rights case is whether a prosecutor violates an attorney's rights under the Fourteenth Amendment by causing the attorney to be searched at the time his client is testifying before a grand jury and whether the prosecutor had an established right to do so in March of 1994. Attorney Paul L. Gabbert who represented a defense witness in the first murder trial of Lyle and Erik Menendez was searched just prior to entering the grand jury room during his client's testimony. The prosecution searched Gabbert's files involving unrelated clients, the contents of his briefcase, including his callender, wallet, dictaphone, eyeglass case, and notepad. The court below remanded the case, holding that Gabbert had a clear established right to practice law free from governmental interference.

Richardson v. United States Court below: 130 F.3d 765 (7th Cir 11/14/97). Questions Presented: At issue in this criminal law case is whether the trial court erred in failing to instruct the jury that it must agree unanimously on which particular drug violations constituted the 'series of violations' required for conviction for conducting a continuing criminal enterprise in violation of 21 USC s 848 (1994). Defendant was convicted of conspiracy to distribute narcotics in addition to other offenses. The court below affirmed the conviction on other grounds, refusing to consider the unanimity jury instruction question because of its prior holding in United States v. Kramer, 955 F.2d 479, cert. granted, 506 US 998 (1992).

Kumho Tire Company v. Carmichael, etc., et al., Patrick . Questions Presented: May a trial judge consider the four factors set out by this Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in a Rule 702 analysis of admissibility of an engineering expert's testimony?

Other Views

LJX, as always the best legal read on the web at http://www.ljx.com, reviews criminal cases, some of which are covered here, some not. Check to see how the case reviews appearing this week and last compare:

THE COURT OF appeals erred in holding that abuse of discretion is the standard of review on the prima facie showing issue in a Batson challenge, the Supreme Court of Colorado ruled Sept. 21. Valdez v. People, 97SC461. Reversing, the court noted that a number of federal courts of appeal have afforded great deference to a trial court's resolution of whether a defendant has established a prima facie showing of discrimination under the first prong of the Batson test. The court sought guidance from Title VII cases and concluded that although it affords the trial court's ultimate determination of the third prong of Batson, a showing that the totality of the relevant facts gives rise to an inference of purposeful discrimination, the first step--the prima facie case--involves a question of legal sufficiency over which the appellate court must have plenary review. Justice Mary J. Mullarkey made clear that any cases in conflict with the court's decision were overruled.

A DEFENDANT RECEIVED ineffective assistance of counsel because his lawyers failed to present evidence of background and character that likely would have led the jury to impose a sentence other than death, the 11th U.S. Circuit Court of Appeals ruled Sept. 21. Collier v. Turpin, 95-8682. . . . Reversing in part and remanding, Judge Gerald Bard Tjoflat said, "By failing to seek expert testimony regarding the effect of Collier's diabetes upon his ability to control his behavior on the day of the crimes, and by failing to present evidence of Collier's background that would have mitigated his sentence, Collier's counsel precipitated a 'breakdown in the adversarial process.'"

A WOMAN WHO threatened to assault U.S. Supreme Court Justice William H. Rehnquist was denied her right to counsel when a district court allowed her to represent herself at trial, the U.S. Circuit Court of Appeals for the District of Columbia ruled Sept. 22. U.S. v. Klat, 97-3075. Remanding, Judge Patricia Wald wrote, "Where a defendant's competence to stand trial is reasonably in question, a court may not allow that defendant to waive her right to counsel and proceed pro se until the issue of competency has been resolved." "The Supreme Court noted that while a defendant has a right to represent herself," Judge Wald wrote, "this defendant must 'knowingly and intelligently' forgo the benefits traditionally associated with the right to counsel in order to be allowed to proceed pro se."

Notices to the community

The Harvard Law School's Death Penalty Project (student run and staffed) is available to take on research assignments from capital defense attorneys in need of assistance. For more information, contact the Project Director, Holly Handler at hhandler@law.harvard.edu, or by regular mail: Civil Liberties Union Death Penalty Project/ 23 Everett Street/Cambridge, MA 02138

Sandy Hausler is currently attempting to get briefs to put on the ABA system. If you are in Florida, California or Texas and have any briefs that you think might be useful to include on the system, or know of someone who please contact "Sanford Hausler" .

The Bannister Foundation is attempting a project to have a database of Criminal Defense Lawyers throughout the USA to work on a PRO-BONO basis. This database will be open for all not just The Bannister Foundation, so if you or any of your mailing list knows of any Attorney's or firms of Attorney's that are willing to do this, can they send the info to banfound@wavenet.co.uk.

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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