This belated edition sees four capital cases and four losses. Royal v. Moore (4th Cir) examines the notion of "innocent of the death penalty" and what counsel must do to examine that claim. In Hicks v. Johnson (5th Cir.) a panel, unsurprisingly, turns aside a challenge that the prosecution unlawfully used peremptory challenges to strike veniree. Franklin v. Gilmore (7th Cir) sees the return of the old hobgoblin of procedural default to bar some claims and sees denial on the merits counsel's failure to tender jury instructions. Finally, in Richardson v. Bowersox (8th Cir.), on a grab bag of issues petitioner loses on claims relating death qualification of jurors, admission of a codefendant's statements, exclusion of evidence in closing argument and refusing to reopen mitigation record after the jury deadlocked and the court became the sentencer.

On a more hopeful note, two solid internet sites devoted to capital defense have grown up over the summer. The first is the site offered up by the Habeas Assistance and Training Group & Federal Capital Case Support Counsel (http://capdefnet.org); this site offers federal briefs, summaries to constitutional law and numerous other helpful aids! A second site from the Louisiana Indigent Defense Board, http://www.lidb.com, this is the best nuts and bolt site on the net to trial preparation in a capital case and well worth the time for even non-capital lawyers as the motion and manual bank offer a fresh insight into criminal defense.

Finally, as some may already now, Capital Defense Weekly has moved onto a new server, http://capitaldefenseweekly.com/CDW. As the move continues new services will be offered and enhanced serves provided. Secure messaging service is now available and access available by emailing me at password@capitaldefenseweekly.com. A secure email discussion list will be launched in the next few weeks as well.

Capital Cases

Royal v. Moore (4th Cir) "Royal raises five issues on appeal. First, he contends that he is actually innocent of capital murder. Second, Royal maintains that the Commonwealth did not reveal certain exculpatory evidence in a timely manner, in violation of Brady v. Maryland , 373 U.S. 83 (1963). Third, Royal asserts ineffective assistance of state trial counsel based on their failure (a) to pursue a triggerman defense or obtain independent experts, which Royal contends misled him into pleading guilty, and (b) to investigate and present certain mitigating evidence at the sentencing hearing. Fourth, Royal argues that the district court erred in denying him discovery. Finally, Royal contends that the district court erred in failing to allow him a full year within which to file his federal habeas petition." Relief denied on all counts.

Royal also makes several ineffective assistance of counsel claims. He contends that he would not have pled guilty if his trial counsel had properly investigated and pursued a triggerman defense or obtained adequate experts. Royal further argues that his counsel's failure to investigate and present certain mitigating evidence at the sentencing hearing denied him effective assistance of counsel. Before the district court, the Commonwealth maintained that the Virginia Supreme Court had denied these claims on their merits, and urged the district court to uphold that denial. Two district judges-- one considering the habeas petition and one considering a motion to alter or amend the judgment -- agreed and denied the claims on their merits.

On appeal, the Commonwealth devotes most of its attention to reit- erating its merits arguments; however, it also briefly asserts that these claims are procedurally barred. The Commonwealth contends that a federal habeas court cannot review these claims because the Virginia Supreme Court dismissed them based on Anderson v. Warden, 281 S.E.2d 885 (Va. 1981). Anderson holds that when asserting an inef- fective assistance of counsel claim to invalidate a plea, a state habeas petitioner is prohibited (absent an adequate reason) from presenting facts that directly controvert his prior statements concerning voluntar- iness of the plea or adequacy of trial counsel. Id. at 888. This rule is at its core an evidentiary rule, prohibiting a petitioner from offering evidence impeaching the admissions he made when he pled guilty. See id. at 887-88; see also, e.g. , Garrett v. Murray, 1991 WL 834854, at *1-2 (Va. Cir. Ct. Mar. 14, 1991) (petitioner not allowed to admit new facts that challenge prior statements made in course of plea, cit- ing Anderson; state habeas court therefore finds challenge to voluntar- iness of plea "without merit"). The Commonwealth asserts that Anderson is also a valid procedural bar, constituting an adequate and independent state ground for the judgment.

However, "[t]he rule that a federal habeas court will not consider a claim that was rejected by a state court on an adequate and indepen- dent state-law basis . . . is not a jurisdictional one." Yeatts v. Angelone, 166 F.3d 255, 260-61 (4th Cir. 1999) (citing Trest v. Cain, 522 U.S. 87, 118 S. Ct. 478, 480 (1997)). Procedural default must be pled as an affirmative defense and the Commonwealth is "obligated to raise procedural default as a defense, or [it will] lose the right to assert the defense thereafter." Gray, 518 U.S. at 165-66; see also Trest, 118 S. Ct. at 480; Fisher v. Texas , 169 F.3d 295, 300-02 (5th Cir. 1999). Because in the district court the Commonwealth failed to raise the issue of Royal's asserted Anderson default with respect to these claims (indeed it affirmatively asserted that the claims had been decided on the merits), it has waived its right to pursue the matter on appeal. Nonetheless, even if a state has waived its right to raise the issue, we have held that a federal court, in its discretion, may hold a claim procedurally defaulted. See Yeatts, 166 F.3d at 261; see also Trest, 118 S. Ct. at 480 (leaving open question of whether federal court can consider a procedural default sua sponte). In determining whether to exercise this discretion, Yeatts instructs us to consider whether a state's waiver was intentional or inadvertent, "whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal," and whether "interests of comity and judicial efficiency" support this exercise of discretion. Yeatts, 166 F.3d at 262; see also Fisher, 169 F.3d at 300-02.

With these considerations in mind, we decline to exercise our dis- cretion to find these claims procedurally defaulted. See Fisher, 169 F.3d at 300-02. First, unlike Yeatts, it appears that in the district court the Commonwealth intentionally waived this claim. Cf. 166 F.3d at 261-62 (in Yeatts Commonwealth asserted on appeal that it believed that it had made the argument to the district court). Moreover, again unlike Yeatts, id., the parties here have not "thoroughly briefed and argued" this issue (each side devotes only a single conclusory para- graph to it, see Brief of Appellee at 20; Reply Brief at 17), and we believe that in these circumstances justice is better served by not deciding these claims on the basis of procedural default. Most impor- tantly, no comity or judicial efficiency concerns counsel us to decide these claims on procedural default grounds rather than on the basis of their evident lack of merit because here, unlike in Yeatts, the proce- dural default is not "obvious," 166 F.3d at 262; indeed, the scope of the Anderson rule is far from clear.

Anderson may simply prohibit collateral challenges to a guilty plea, including claims of ineffective assistance of counsel that attack the validity of the plea; such a rule would appear to constitute an ade- quate and independent state procedural rule like Slayton, and would therefore generally bar us from considering such claims on their mer- its. See Coleman, 501 U.S. at 750. Less than a year ago, the Common- wealth suggested that this was the scope of the Anderson rule. In that case the Virginia Supreme Court applied Anderson in precisely this manner, finding a petitioner's claims pertaining to counsel's conduct up to and including the court's acceptance of his guilty plea procedur- ally barred by Anderson, but reaching the merits of challenges to counsel's conduct at sentencing and on appeal. See Dubois v. Greene, 149 F.3d 1168, 1998 WL 276282, at *3-5 (4th Cir. 1998) (unpub- lished). On this understanding of Anderson, we held in an unreported opinion that the Anderson rule constituted a valid procedural bar to our consideration of the petitioner's challenges on their merits. Id.

In the case at hand, however, the Commonwealth conclusorily maintains that Anderson incorporates a broader procedural bar, pre- venting a petitioner who has pled guilty from asserting any collateral challenge based on ineffective assistance of trial counsel, even a claim pertaining to sentencing. The Virginia Supreme Court here applied Anderson in this more expansive manner, finding that it barred collateral consideration not just of Royal's ineffective assis- tance claims in connection with the plea but also of the claim relating to his sentence. If the Anderson rule encompasses ineffective assis- tance of counsel claims that do not challenge the plea but rather only pertain to sentencing, it may well not constitute an adequate and inde- pendent state procedural default rule because in Virginia such claims -- unlike challenges to the plea itself -- cannot be raised until the state habeas proceeding. Compare Walker v. Mitchell, 299 S.E.2d 698, 699-700 (Va. 1983) (ineffective assistance of counsel claims cannot be raised prior to state habeas action), with Hall v. Commonwealth, 515 S.E.2d 343, 346-47 (Va. Ct. App. 1999) (defen- dant can challenge the voluntariness of a plea prior to state habeas -- e.g., in a motion to withdraw the plea -- even if the basis of the chal- lenge is inadequate advice of counsel concerning whether or not to plead). In any event, we are uncertain of the true scope of the Anderson rule and, consequently, whether it can properly be consid- ered an adequate and independent state procedural rule. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (rule must be applied regu- larly and consistently by the state court in order to qualify as an "ade- quate" state ground); see also Plath v. Moore , 130 F.3d 595, 602 (4th Cir. 1997).

In sum, none of the factors that led us to dismiss the habeas claim in Yeatts on the basis of procedural default supports such a course here. Rather, all of those factors weigh in favor of resolving these patently meritless claims on the substantive grounds to which we now turn. In order to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, a petitioner must prove that his coun- sel's performance fell below the well-established standard outlined in Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474 U.S. 52, 57-59 (1985). Strickland requires proof of both ineffec- tive representation and actual prejudice -- that is, proof that counsel's performance fell below an objective standard of reasonableness and that "there is a reasonable probability that, but for counsel's unprofes- sional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-91, 694. In order to satisfy the prejudice requirement in the context of a challenge to a guilty plea, the defen- dant must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.

Royal is unable to meet either prong of the Strickland standard. In making strategic decisions concerning what to investigate or how to proceed at trial, a lawyer may properly rely on the general truthful- ness of his client as well as the defendant's particular statements. See Barnes v. Thompson, 58 F.3d 971, 979 (4th Cir. 1995). Given Royal's repeated assertion that he killed Officer Wallace and that only he car- ried a .380-caliber weapon on the night of the murder, together with the forensic evidence showing the fatal bullet to be consistent with a .380 slug, Royal's first two ineffectiveness claims must fail. We sim- ply cannot conclude, in the face of such strong evidence, that the con- duct of Royal's counsel fell outside the wide range of reasonableness afforded attorneys under the Strickland standard when they chose not to pursue a triggerman defense or to obtain independent experts.

Similarly, we have recognized that reliance on evidence of psycho- logical impairments or personal history as mitigating factors in sen- tencing can be a "double-edged sword." Wright v. Angelone, 151 F.3d 151, 162 (4th Cir. 1998); see also Barnes, 58 F.3d at 980. Thus we must also reject Royal's final ineffectiveness claim; Royal's counsel did not fall below an objective standard of reasonableness in failing to further develop or argue mitigating factors at sentencing.

Furthermore, Royal has not demonstrated prejudice with respect to any of these claims. He has not shown that but for the assertedly inef- fective assistance, a reasonable defendant would have insisted on pro- ceeding to trial. See Hill, 474 U.S. at 59. Given the Commonwealth's powerful evidence against Royal -- including his recorded confession and corroborating forensic and ballistic reports-- and the circum- stances of the crime, we believe that, even absent counsel's asserted errors, it is likely that a jury would have convicted Royal and the judge would have given him the maximum sentence. We cannot con- clude that a reasonable defendant in these circumstances would not have pled guilty. Nor has Royal demonstrated a "reasonable probabil- ity" that his sentence would have been more lenient had counsel advanced additional mitigating evidence on his behalf. Strickland, 466 U.S. at 694. Thus, we find all of Royal's ineffective assistance claims without merit. . . . .

V.

Royal also argues that the district court erred in denying him dis- covery under Habeas Rule 6 concerning his Brady claims. In Bracy v. Gramley, 520 U.S. 899 (1997), upon which Royal relies, the Supreme Court explained that a petitioner demonstrates "good cause" for habeas discovery "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief." Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Royal asserts that he has submitted such specific allegations here. Because, as we explained above, Royal procedurally defaulted his Brady claims and has not shown cause and prejudice or fundamental miscarriage of justice permitting its consideration on federal habeas, we cannot agree. The district court therefore did not abuse its discretion in deny- ing the discovery request. See Quesinberry v. Taylor, 162 F.3d 273, 279 (4th Cir. 1998).

Hicks v. Johnson (5th Cir.) Claims that petitioner was denied a fair trial due to the prosecutions striking members of his own race denied. Changes to Texas' capital sentencing scheme in the wake of Penry v. Lynaugh did not produce an arbitrary differentiation in violation of the EIghth and Fourteenth Amendment.

Hicks, who is black, claims that his rights under the equal protection clause of the fourteenth amendment were violated when the prosecutor exercised his peremptory challenges in a racially discriminatory manner. In Batson v. Kentucky,(5) the Supreme Court outlined the methodology for evaluating a claim that jurors were improperly stricken based on their race. Initially, the defendant must make a prima facie showing that the challenged strike has been employed in a racially discriminatory manner. Once this showing has been made, the prosecutor must articulate race-neutral selection criteria. The district court then must determine whether the defendant has established purposeful racial discrimination.(6)

Of eleven potential black jurors, the prosecutor exercised peremptory strikes against four. Hicks objected to the elimination of three of them. To establish a prima facie case Hicks relied exclusively on statistics. The prosecutor articulated numerous racially-neutral reasons in support of each challenged strike, ranging from educational deficiencies to prior criminal convictions. The state court credited the prosecutor's explanations and found that Hicks had failed to show intentional discrimination against blacks.

Our review of state court findings is sharply circumscribed under 28 U.S.C. § 2254, which requires us to accept as correct a determination of a factual issue by a state court unless the habeas petitioner rebuts same by clear and convincing evidence.(7) We begin with the proposition that the state court appropriately accepted the race-neutral reasons tendered by the prosecutor as truthful and properly rejected Hicks' charges of discrimination. In response Hicks contends that the proffered reasons were pretextual and offers as proof of same the prosecutor's purported failure to strike similarly-situated whites. In support of this contention, Hicks identifies several white jurors who had certain of the objectionable characteristics cited by the prosecutor but were not stricken.

We are not persuaded. None of the individuals Hicks identifies possessed the combination of the negative qualities attributable to the stricken veniremen. The potential jurors were not similarly situated. We previously have rejected such submissions. In United States v. Webster,(8) we stated:

[Defendant] offers no direct evidence of purposeful discrimination, but rather argues that the government's proffered reasons are pretextual, and the government did not dismiss similar white jurors. Because the determination turns on credibility assessments, we review for clear error. . . . The government offered distinguishing characteristics for each of the jurors [defendant] claims were similarly situated. They had different combinations of qualities, and some had more government-desired qualities than did the jurors the government preempted. . . . The court did not find the proffered reasons pretextual and found no other evidence of purposeful discrimination; we cannot say it clearly erred.(9)

Similarly, the evidence offered by Hicks in this case falls far short of what would be required to cast doubt on the state court's factual findings. Therefore, Hicks has failed to make a substantial showing of a violation under Batson.

Franklin v. Gilmore (7th Cir) Relief denied across the board on claims that "(1) the district court improperly refused to adjudicate the merits of his due process claims on the grounds that they had been procedurally defaulted; (2) he was denied effective assistance of counsel in the state trial court proceedings; and (3) the state court trial judge inaccurately instructed the jury at sentencing, in violation of his Eighth and Fourteenth Amendment rights."

A. Procedural Default

Franklin's first contention is that the district court improperly refused to adjudicate the merits of his due process claims on the grounds that he forfeited those claims by procedural default. Specifically, Franklin contends that the district court erred in finding that his habeas claim was procedurally defaulted based on the adequate and independent Illinois law grounds because: (1) the Illinois courts did not follow a "firmly established and regularly followed" state procedure; and (2) his counsel on direct appeal was ineffective for failing to raise the due process claims. We review these claims de novo. . .

"Forfeiture under sec. 2254 is a question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Patrasso, 121 F.3d at 301. In People v. Moore, 686 N.E.2d 587 (Ill. 1997), the Illinois Supreme Court explained:

A post-conviction proceeding is a collateral attack upon a final judgment and the scope of post-conviction review is limited to issues which have not been, and could not have been, previously adjudicated. In a post-conviction proceeding, the determinations of the reviewing court on the prior direct appeal are res judicata as to issues actually decided and issues that could have been presented on direct appeal, but were not, are deemed waived.

Id. at 591 (internal citations and quotations omitted). Here, we find that Franklin forfeited this issue by failing to raise it on direct appeal. The record shows that, during his trial, Franklin had access to both the 59-page Will County statement and the transcript of Williams' and Holmes' joint-preliminary hearing testimony. In fact, his attorney even attempted to question and impeach Williams with both documents, but neither document ever was made a trial exhibit, published to the jury, or entered in the record. Nevertheless, Franklin argued in his post- conviction appeal, as he does before this Court, that the absence of those documents from the record before the Illinois Supreme Court prevented him from asserting his due process claim on direct appeal. Hence, he contended, as he does now, that his later post-conviction proceeding was the appropriate forum in which to raise the due process issues and Rule 329 was the appropriate vehicle by which to enter the documents into evidence.

In his post-conviction appeal, Franklin attempted to supplement the record by way of Rule 329 with the Will County statement and the joint- preliminary hearing testimony. Rule 329, however, addresses a party's ability to add material to the record under specific limited circumstances. See, e.g., People v. Miller, 548 N.E.2d 1, 6 (Ill. App. Ct. 1989). The rule, however, does not create a vehicle for parties to raise issues that they should have raised in the trial court or on direct appeal. Here, we find that Franklin's due process claims are controlled by Illinois forfeiture principles and not by Rule 329. Accordingly, Franklin's due process claims are forfeited and, therefore, are procedurally barred unless he can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

Franklin asserts that the ineffective assistance of appellate counsel provides the cause for his failure to raise his due process claims on direct appeal and for his failure to supplement the trial record. Specifically, Franklin contends that his appellate counsel's failure to raise his due process claims and supplement the record pursuant to Rule 329 on direct appeal is of such significant magnitude that it excuses procedural default in federal habeas.. . .

As the district court did, we recognize that Franklin's counsel may have chosen not to advance each and every possible due process claim on direct appeal in an effort to streamline the argument before the Illinois Supreme Court. After all, the "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661 (1986) (internal citations and quotations omitted). Our review of the record, however, shows that the issues Franklin's counsel raised on direct appeal bear a strong similarity to the due process claims that Franklin raises in this Court. Specifically, on direct appeal, Franklin's counsel argued that: (1) the trial court erred in allowing the state to portray Williams as a credible witness who had no motive to lie about his involvement in the murder of Evans, (Franklin I, 552 N.E.2d at 752); (2) because Williams' involvement in the commission of the offense was evident and because Williams' testimony was crucial to the state's case, his counsel's failure to tender an accomplice witness testimony instruction to the court denied him a fair trial, (id. at 754-55); and (3) the circuit court erred in not instructing the jury on accomplice witness testimony, (id. at 754). Thus, Franklin's appellate counsel raised on direct appeal arguments that, although worded differently, are similar in substance to the due process claims Franklin now contends should have been brought on direct appeal. We cannot say that Franklin's appellate counsel fell below an objective standard of reasonableness or that he was so prejudiced as to constitute an unfair trial. Therefore, Franklin's ineffective assistance of counsel argument does not qualify as cause to set aside the procedural default of his due process claims.

As we previously noted, procedural default will be excused if a defendant can show that a failure to review the defendant's claims would result in a fundamental miscarriage of justice. Patrasso, 121 F.3d at 301. Franklin, however, does not make this argument and we will not make it for him. In sum, Franklin has not demonstrated either cause and prejudice or a fundamental miscarriage of justice such that he can escape the procedural default on his due process claims. The district court properly denied the claim without reaching the merits.

B. Ineffective Assistance of Trial Counsel

Franklin next contends that he received ineffective assistance of trial counsel because his attorney failed to tender a jury instruction on accomplice witness testimony. This claim was rejected by the Illinois Supreme Court on Franklin's direct appeal. See Franklin I, 552 N.E.2d at 754-55. When a state court applies established law, its decision must be respected unless "unreasonable." See 28 U.S.C. sec. 2254(d)(1). Once again, we use the test set forth in Strickland to resolve this issue. See Strickland, 466 U.S. at 687-88. "Strickland builds in an element of deference to counsel's choices in conducting the litigation; sec. 2254(d)(1) adds a layer of respect for a state court's application of the legal standard." Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir. 1997). "[W]hen the constitutional question is a matter of degree, rather than of concrete entitlements, a reasonable decision by the state court must be honored." Id. at 881-82 (internal citations and quotations omitted). Strickland calls for inquiry into degrees; it is a balancing rather than a bright-line approach. "This means that only a clear error in applying Strickland's standard would support a writ of habeas corpus." Id. at 882.

In considering Franklin's argument that his trial counsel was ineffective because he failed to tender an accomplice-witness instruction, the Illinois Supreme Court held:

After Williams came forward and offered his account of what had transpired, the State charged him with the murder of Elgin Evans, Jr. After a preliminary hearing, the circuit court found that there was no probable cause to charge Williams for that offense. Although a finding of no probable cause at a preliminary hearing does not serve as a bar to later indictment (Ill. Rev. Stat. 1985, ch. 38, par. 112-4), the fact that there was a no-probable-cause finding suggests to the reasonably competent counsel that the witness did not act as an accomplice. As the standard is one of objective reasonableness under "prevailing professional norms" (Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694), defense counsel's reliance on the no-probable-cause finding in deciding not to tender the accomplice witness instruction cannot be deemed deficient.

Franklin I, 552 N.E.2d at 755. This decision was not unreasonable. Although the state still could re-indict Williams as an accomplice to the Evans murder, the combination of the no-probable-cause finding and the failure of the prosecution to re- indict Williams could reasonably suggest to Franklin's trial counsel that an accomplice- witness instruction likely would not be granted. We deny Franklin's claim.

C. Sentencing Court Instructions

Finally, Franklin claims that the trial court incorrectly instructed the sentencing jury that its verdict, whether for or against a death sentence, must be unanimous. As a result, Franklin alleges that he was denied a fair sentencing hearing. Under Illinois law, only a unanimous jury may impose the death sentence: if a single juror opposes giving the death penalty, a defendant may receive only a term of imprisonment. See 720 ILCS 5/9-1(g). Franklin contends that the sentencing judge likely confused the jury because he improperly instructed that its verdict, whether for or against a sentence of death, must be unanimous.

We disagree with Franklin's contention but we need not resolve this claim on the merits because Franklin has forfeited this argument. Franklin raised the same claim on direct appeal to the Illinois Supreme Court. See Franklin I, 552 N.E.2d at 760. In Franklin I, the court rejected this claim on procedural grounds, finding that Franklin had forfeited this issue by failing to raise an objection to the court's instructions at the sentencing hearing. Id. Because forfeiture is an adequate and independent state ground for a decision, see Patrasso, 121 F.3d at 301, this claim has been procedurally defaulted unless Franklin can show either cause and prejudice for the failure to raise the claim in state court, or that the default would lead to a fundamental miscarriage of justice, see id. Franklin does not attempt to satisfy either of the procedural default exceptions and, therefore, we deny his claim.

Richardson v. Bowersox.(8th Cir)(PDF) No error in striking jurors who indicated they would not follow instructions in a death penalty case; no error in admitting co-defendants' statements inculpating Richardson; no error in refusing to permit Richardson to make a closing argument based on facts not in evidence; no error in admitting evidence Richardson threatened a witness; no error in refusing to reopen mitigation record after the jury deadlocked and the court became the sentencer.

In Long v. Humphrey, No. 98-3409, slip op. (8th Cir. July 14, 1999), we cited with approval the First Circuit’s definition of “contrary to,” which we summarized as follows: A state court decision is contrary to clearly established law if the controlling case law requires a different outcome either because of factual similarity to the state case or because general federal rules require a particular result in a particular case. Id. at 4 (citing O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)). We then adopted the Third Circuit’s interpretation of the “unreasonable application” prong of section 2254(d)(1). Under the Third Circuit’s holding, “‘[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.’” Id. (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc), petition for cert. filed, 68 U.S.L.W. 3008 (U.S. June 22, 1999)). In determining whether a state court’s decision involved an unreasonable application of clearly established federal law, it is appropriate to refer to decisions of the inferior federal courts in factually similar cases. See id. at 5 (citing Matteo, 171 F.3d at 890). Further,“[i]n making this determination, mere disagreement with the state court’s conclusions is not enough to warrant habeas relief.” Matteo, 171 F.3d at 890 (quoted in London, slip op. at 5). It is with these standards in mind that we consider Richardson’s claims.

A. Guilt Phase Issues

1. Voir Dire

Richardson argues that the trial court erred in striking three venire persons who stated that they would not consider imposing the death penalty if the State did not prove that Richardson was the person who pushed the victims off the bridge. The Supreme Court has held that a juror may be stricken for cause if, upon questioning, the judge believes that his views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45 (1980). A trial judge’s determination that a juror should be stricken is a finding of fact that is entitled to considerable deference under section 2254(e)(1). See Hatley v. Lockhart, 990 F.2d 1070, 1072 (8th Cir. 1993); Swindler v. Lockhart, 885 F.2d 1342, 1345-46 (8th Cir. 1989).

Here, the State was entitled to have the jury consider the death penalty upon a verdict of first-degree murder based on accomplice liability. See Mo. Rev. Stat. § 565.030; cf. Mo. Rev. Stat. § 565.032.3(4) (stating that an accomplice’s “relatively minor” participation in the crime is a statutory mitigating factor but not a complete bar to imposing the death penalty). To demonstrate accomplice liability, the State was not required to prove that Richardson himself pushed Julie and Robin Kerry off the bridge. See Jury Instruction No. 6, J.A. at 353. Because the three venire persons at issue in effect stated that they would not follow this instruction, see Trial Tr. at 279 (Cannon); 306 (Pisoni); 311 (Hughes), the trial court did not err in finding that their views would substantially impair their performance as jurors and in striking them from the panel. . . . .

3. Closing Argument

Richardson argues that the Sixth and Fourteenth Amendments were violated when the court granted the State’s motion in limine restricting his closing argument at trial. He claims that he was precluded from arguing (1) that he was not under the bridge when the victims were pushed, (2) that he was incapable of deliberating on the murders, and (3) that he did not participate in the murders. Although Richardson did not object to the court’s ruling during the trial, the Missouri Supreme Court reviewed the claim for plain error on direct appeal. See Richardson, 923 S.W.2d at 314-15. Therefore, we also review for plain error, granting relief “only if there is manifest injustice.” Roberts v. Bowersox, 137 F.3d 1062, 1064 (8th Cir. 1998), cert. denied, 119 S. Ct. 808 (1999).

A trial court may not prohibit all closing argument but has “broad discretion” in limiting its scope. See Herring v. New York, 422 U.S. 853, 862 (1975). Closing arguments may be “limited to the facts in evidence and reasonable inferences flowing therefrom.” United States v. Ojala, 544 F.2d 940, 946 (8th Cir. 1976). Courts may prohibit arguments that “misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.” nited States v. Sawyer, 443 F.2d 712, 713-14 (D.C. Cir. 1971) (footnotes omitted). Here, there was no evidence from which the jury could have inferred that Richardson was not under the bridge when the victims were pushed. Nor did ichardson introduce evidence that he was mentally incapable of deliberation. Therefore, the trial court did not plainly err in prohibiting Richardson from so contending in his closing argument.

Further, Richardson was allowed to argue extensively during closing argument that he did not participate in the actual pushing of the victims. See Trial Tr. at 2015-30 (arguing that Gray was also under the bridge and that Gray pushed the victims). Accordingly, even if it was error to grant the State’s motion on this ground, Richardson did not suffer manifest injustice as a result.

B. Penalty Phase Issues

2. Additional Mitigating Evidence

At the penalty phase, Richardson’s counsel did not present the testimony of Dr. Eric Engum, a neuropsychologist, who stated in his report that Richardson suffered from an “unspecified non-psychotic mental disorder following organic brain damage.” Petition for Writ of Habeas Corpus, J.A. at 99. Counsel believed that Dr. Engum’s testimony would be more harmful than helpful because his report also concluded that Richardson’s mood appeared “flattened, detached, and dulled” and that Richardson had reduced “frustration tolerance” and increased irritability when faced with difficult tasks. Id., J.A. at 94. When the trial court became the sentencer, however, Richardson wished to introduce Dr. Engum’s testimony because he believed that the court would not lend undue weight to the prejudicial portions of the report. The court denied

Richardson’s request and recommended a sentence of death based on the mitigating and aggravating evidence presented to the jury. It then agreed to hear Dr. Engum’s testimony before it formally entered the sentence. Richardson claims that the court’s refusal to hear the evidence before recommending sentence violated his right to due process.

The Missouri capital sentencing statute requires that defendants be allowed to present mitigating evidence to the jury at a penalty-phase hearing following the determination of guilt. See Mo. Rev. Stat. § 565.030.4. If the jury cannot agree on punishment, the court becomes the sentencer. See id. The statute requires the court to follow the same procedure that the jury follows before assessing punishment. Id. Richardson contends that the statute thus requires the court to hold a second penalty-phase hearing because such a hearing is part of the procedure required of the jury under the statute. The Missouri Supreme Court declined to address the statutory argument, holding that Richardson was not prejudiced by the lack of a second penalty-phase hearing because the court considered the evidence before it formally entered the sentence. See Richardson, 923 S.W.2d at 324. This holding on a matter of state evidentiary law is not grounds for federal habeas relief unless it was so unfair as to constitute a denial of due process. See Mercer v. Armontrout, 844 F.2d 582, 587 (8th

Cir. 1988). Likewise, even if the Missouri statute requires a full-dress second penalty-phase hearing in the circumstances presented by Richardson’s case, any error of state law in failing to accord Richardson such a hearing would not constitute the automatic equivalent of a violation of the federal constitution. See Chambers v. Armontrout, 157 F.3d 560, 564-65 (8th Cir. 1998). Nor would the fact that the error of state law, even though occurring during the sentencing phase of a capital case, necessarily give rise to a claim under the Due Process Clause of the Fourteen Amendment. See id. See also Barclay v. Florida, 463 U.S. 939, 957-58 (1983) (plurality opinion).

Clearly established federal law holds that states may not “preclude the sentencer from considering any mitigating factor.” Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (citing Lockett v. Ohio, 438 U.S. 586 (1978)). Nor may the sentencer “refuse to consider, as a matter of law, any relevant mitigating evidence.” Id. at 114. It is not sufficient to allow defendants to present mitigating evidence; the sentencer “must also be able to consider and give effect to that evidence in imposing sentence.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989).

These cases establish that defendants must have an opportunity to present, and sentencers must consider, mitigating evidence. They cannot, however, fairly be said to require that states give defendants a second opportunity to present mitigating evidence in the event the trial court replaces the jury as sentencer. Accordingly, the Missouri Supreme Court’s refusal to address and accept Richardson’s statutory argument did not constitute a decision that was “contrary to” clearly established federal law.

The question then becomes whether the decision “involved an unreasonable application of” clearly established federal law. In making this determination, we look to relevant decisions of the Supreme Court and lower federal courts. Although Richardson argues that the trial court’s decision not to conduct a second penalty-phase hearing was an unreasonable application of the holdings in Eddings and Penry, he has not called to our attention any cases that have interpreted Eddings and Penry to require states to provide a second opportunity to present mitigating evidence in those cases in which the trial court replaces the jury as sentencer. Richardson had a full opportunity to present mitigating evidence to the jury. When the trial court became the sentencer, it considered all of the evidence that Richardson had presented in mitigation. Accordingly, we cannot say that the Missouri Supreme Court’s decision not to address and accept Richardson’s statutory argument constituted an unreasonable application of the law set forth in Eddings and Penry.

Habeas Cases

Lyons v. Stovall (6th Cir) Split panel holds sua sponte that "any decision announcing that the presumption of innocence is violated by the use of evidence which assumes a statistical probability of guilt would be a "new rule" under Teague, and therefore cannot be used as grounds for granting the petition for habeas relief."

Taliani v. Chrans (7th Cir) A lawyer's error did not toll statute of limitations for AEDPA.

Towns v. USA (6th Cir) Sixth Circuit adopts the prison mailbox rule for stopping the clock on AEDPA habeas petitions. Petition barred by the district court improperly for being a "delayed" petition, nonetheless lack substantive merit.

Schaff v. Snyder (7th Cir) Panel denies relief chiefly on the "allegation that prosecutors failed to disclose Pamela Klein had been fired (or was asked to resign) by the children's advocacy center, in violation of Giglio v. United States, 405 U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83 (1963). . . . [I]t is a close question whether there is a reasonable probability that the result of Schaff's trial would have been different had prosecutors disclosed the circumstances under which Klein left the children's advocacy center.

Pheonix v. Matesanz (1st Cir) Ineffective assistance of counsel claim remanded for determination of whehter evidence which tended to exculpate petitioner met the rgiors of the AEDPA.

Hull v. Kyler (3rd Cir) In light of a complex procedural history and a prior finding of procedural default, the Third Circuit nonetheless grants a writ of habeas corpus and orders a new competency hearing to be held

Dictado v. Ducharmo (9th Cir) "Dictado's state petition did not comply with Washington's rules governing the time of filing. Consequently, we hold that the application was not "properly filed " within the meaning of the AEDPA. Dictado's 1997 petition did not toll the statute of limitations period."

Crease v. McKune (10th Cir) "Mr. Crease asserted that an ex parte conversation between a state trial judge and a juror violated his federal right to be present at all critical stages of his trial . . [Panel] grant['s] a certificate of probable cause and deny the writ. "

Tolbert v. Gomez (9th Cir) "Tolbert argues that striking Robertson on the basis of his opinions on race was equivalent to striking him on the basis of his race. We respectfully disagree. The assumption that race and an opinion on race are inseparable is antithetical to the very type of racial stereotyping that Batson forbids."

Gatlin v Madding (9th Cir) Because the state did not resist the COA within thirty-five days of Gatlin's filing of his notice of appeal (which our rules treat as a request for COA) on the basis now asserted, we decline to consider its belated challenge. As we agree with the district court on the merits, we affirm."

James v. Bowersox (8th CIr) (PDF) Claims of ineffective assistance of counsel at trial and in preparation rejected; challenge to prosecutor's closing argument rejected.

Mills v. Norris (8th Cir) (PDF) Anti-terrorism and Effective Death Penalty Act statute of limitations was tolled by the filing of a state court appeal from denial of postconviction relief petition, even though Mills failed to perfect the appeal.

Cabello v. United States (7th Cir) Trial counsel's fees being paid by a potential co-defendant did not result in constitutional error due to lack of prejudice and prejudice can not be assumed under these facts

Prisoner's Rights/Governmental Misconduct Cases

Medberry v. Bulter (11th Cir) "The second issue raised--the one which is of first impression-- is what showing must a prisoner with three strikes against him make in order to be allowed to proceed in forma pauperis because he is in imminent danger of serious physical injury." "Congress' use of the present tense in § 1915(g) confirms that a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception to the statute. See Ashley, 147 F.3d at 717 (holding that "the statute's use of the present tense verbs `bring' and `is' demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing. Allegations that the prisoner has faced imminent danger in the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on the installment plan."); see alsoBaños, 144 F.3d at 885 (holding that "the language of § 1915(g), by using the present tense, clearly refers to the time when the action or appeal is filed or the motion for IFP status is made.")."

Hawkins v. City of Farmingtoni (8th Cir) (PDF) Summary judgment vacated where state supreme court clarification of respondeat superior liability meant potentially triable issue existed.

DuBose v. Kelly (8th Cir) (PDF) District court erred in granting defendants a summary judgment on plaintiff's Section 1983 action alleging conspiracy between defendants to fix his case as plaintiff stated facts which, if proved, would establish such a conspiracy.

Jones v. Board of Police (8th Cir) (PDF) No error in permitting arresting officers to demonstrate wrist lock procedure they used to control plaintiff's decedent; while demonstration did not accurately reflect the entire course of action involved in decedent's restraint, the plaintiff was free to explore the differences in cross-examination.

Ingram v. Johnson (8th Cir) (PDF) Plaintiffs' actions in taking a prisoner in their custody to see the FBI did not amount to protected speech, and they could be disciplined for violating jail operating procedures; claim of retaliatory discharge was not supported by the evidence.

Burge v. Canulette (5th Cir) Imprisoned for nearly five years for a crime of which he was later exonerated, Burge sued. Summary judgment for prosecutors on the basis of immunity affirmed. Qualified immunity argument for police misplead on appeal & appellate jurisdiction not had.

Sibley v. Lemaire (5th Cir.) Summary judgment affirmed in favor of corrections for injuries inflicted during a psychotic episode during which the plaintiff injured himself while in custody.

Calabretta v. Floyd (9th Cir) No qualified immunity had where "a social worker and a police officer . . . coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency."

McKelvie v. Cooper (2nd Cir) Plaintiffs appeal from the Magistrate Judge's grant of summary judgment in favor of defendant police officers on plaintiffs' constitutional and state law tort claims arising out of police search of bar and restaurant. A triable issue with respect to Pinette's claims for violation of his Fourth Amendment exists rights and for intentional infliction of emotional distress. Judgment otherwise affirmed

Snider v. Dylag (2nd Cir) District court erred in summarily dismissing complaint as [1] triable issue existed on the purported declaration of guard of "open season" on an inmate & [2] whehter or not administrative remedies had been exhausted needed to be more thoroughly examined.

King v. Simpson (2nd Cir) Appeal from judgment granting defendant's motion to dismiss plaintiff's civil rights complaint for failure to state a claim upon which relief may be granted. Because the record below is incomplete regarding defendant's actions and functions in the underlying proceedings and his resulting entitlement, if any, to immunity from suit, we reverse and remand for additional development of the record.

DISCLAIMER & CREDITS-- Anti-copyrite 1999. " ISSN: 1523-6684. Written with the legal professional in mine. Use does not constitute creationof an attorneyclient relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.