Fisher v. State

6 Analyses of this case by attorneys

  1. Capital Defense Weekly, September 6, 1999

    Capital Defense NewsletterSeptember 6, 1999

    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.

  2. Capital Defense Weekly, July 29, 2002

    Capital Defense NewsletterJuly 29, 2002

    In determining whether a rule is "new," we must "survey the legal landscape as it then existed and determine [*23] whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution." Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (citations omitted) (emphasis added).In order to qualify as existing, a rule must be dictated by Supreme Court precedent, not circuit court precedent.

  3. Capital Defense Weekly, April 30 , 2001

    Capital Defense NewsletterApril 29, 2001

    See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999), aff'd, 528 U.S. 225, 145 L. Ed. 2d 727, 120 S. Ct. 727 (2000) ("When a petitioner has properly presented a claim to the state court but the state court has not adjudicated the claim on the merits, however, our review of questions of law and mixed questions of law and fact is de novo."); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) (declining to apply § 2254(d)'s deferential standards because the Texas state courts had dismissed petitioner's claim on procedural grounds rather than on its merits); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998) ("A prerequisite for applying [§ 2254(d)] is that the state court adjudicated the issue before us on the merits.").

  4. Capital Defense Weekly, January 8, 2001

    Capital Defense NewsletterJanuary 8, 2001

    We agree.Under Teague, a federal court may not create new constitutional rules of criminal procedure on habeas review. See Teague, 489 U.S. at 301, 109 S.Ct. at 1070; Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999). The treatment of parole eligibility that Wheat seeks would constitute a rule of criminal procedure.

  5. Capital Defense Weekly, December 13 , 2000

    Capital Defense NewsletterDecember 13, 2000

    Here, the Fourth Circuit concluded that recognizing petitioner’s procedural default was proper in light of the state’s representations that its failure to raise the defense earlier was "unintentional".Fisher v. Texas 169 F.3d 295, 302-303 (5th Cir. 1999) The state waived the defenses of procedural default and non-exhaustion by failing to raise them before the district court in this non-capital habeas case involving a claim that religion-based peremptory strikes violate the Equal Protection Clause. With regard to procedural default, the Fifth Circuit acknowledged the state’s contention "that its waiver . . . was inadvertant," but declined to exercise discretion to apply an available procedural bar under the circumstances of this case because petitioner "had absolutely no notice that procedural bar would be an issue [in the case]."

  6. Capital Defense Weekly, November 10, 1999

    Capital Defense NewsletterNovember 10, 1999

    ef before [the state supreme] court to his "due process right to a fair trial."Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998), Petitioner adequately exhausted state remedies concerning his double jeopardy claim where, although petitioner did not appeal his conviction, the state supreme court had already ruled that his prosecution did not offend the Double Jeopardy Clause, the United States Supreme Court denied certiorari from that decision, and further state court review was unavailable.Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir. 1998), Petitioner fairly presented his claim that he did not knowingly and intelligently waive his right to testify where, on appeal from the denial of post-conviction relief, the state supreme court listed as one of five issues petitioner’s claim "that trial counsel impermissibly interfered with his right to testify," and petitioner specifically claimed in his brief to that court that this interference by counsel violated his constitutional right to testify.Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999), The Fifth Circuit found that the "futility exception [to the exhaustion requirement] applies when, as here, the highest state court has recently decided the same legal question adversely to the petitioner." The "legal question" resolved adversely to petitioner’s position in this case was the claim that exercise of peremptory challenges on the basis of religion violates the Equal Protection Clause.Cameron v. Lefevre, 887 F.Supp. 425, 428-29 (E.D.N.Y. 1995), Petitioner was not required to exhaust state remedies where delay in state's direct appeal process was chargeable to the state and unreasonable.Simmons v. Blodgett, 910 F.Supp. 1519, 1523-24 (W.D.Wash. 1996), Because inmate's jury misconduct claim hinged on testimony of juror who was elderly, marginally incompetent and in poor health, the case was "exceptional" and exhaustion of state remedies was not required.Calhoun v. Farley, 913 F.Supp. 1218, 1221 (N.D.Ind. 1995), Because the state courts had not ruled on petitioner's pro se pe