In non-capital cases two cases are of note.  In Austin v. Mitchell (6th Cir) a panel has held that the statute of limitations for the AEDPA is only tolled if a federal constitutional claim is not raised in a postconviction motion in state court, even if the motion is properly filed.  In Mapp v. Uphoff  (10th Cir), among the most perverse twist in PLRA litigation, the third strike under the PLRA was waived by the panel after plaintiff died out of the severe medical indifference that the court below had dismissed for failing to pay a docketing fee.

In depth this week examines opt-in provisions and errata examines the upcoming executions of several mentally ill and juvenile inmates.

Please note, due to the holidays, Seventh Circuit's internet case listings are unavailable, as well as the decision of Amos v. Md. Dept of Public Safety (4th Cir.).  Hopefully both will covered in the next issue.

A special thank you this week for all the wonderful help of Lisa Spangenberg whose computer technical expertise has gone unrecognized for to long.

V. Sentencing Errors

We turn next to the district court's decision that the sentencing proceeding was constitutionally flawed. The court's ruling was based on its conclusion that three interrelated constitutional errors occurred when the state used the 1979 shooting death of Mr. Paxton's wife Gloria as grounds for seeking the death penalty. The court held that Mr. Paxton's constitutional right to confront the witnesses against him was violated by the admission of hearsay statements of Mr. Paxton's daughter Pamela, who was three years old at the time of her mother's death and had no present recollection of the event at the time of the trial in the present case. The court further ruled that Mr. Paxton's constitutional right to present mitigating evidence was denied by the state court's exclusion of evidence that Mr. Paxton was cleared in the death of his wife by a polygraph examination. Finally, the district court held that the prosecutor, Robert Macy, deceived the jury in closing argument by falsely stating that he did not know why the charges against Mr. Paxton had been dismissed and by inviting the jury to be suspicious of the reason for the dismissal. The court held that Mr. Macy's prosecutorial misconduct exacerbated both the erroneous admission of the hearsay and the erroneous exclusion of the polygraph test. We address each of the district court's rulings in turn.

A. Admission of Hearsay

We begin with Mr. Paxton's contention that the admission of Pamela's hearsay statements was constitutional error. "The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Ohio v. Roberts, 448 U.S. 56, 62-63 (1980) (citations omitted). While the Confrontation Clause does not bar the admission of all hearsay, it "reflects a preference for face-to-face confrontation at trial." Id. at 63. The Supreme Court has struck a balance between the need to protect the integrity of the fact-finding process through cross-examination and the needs of effective law enforcement, see id. at 63-65, by holding that admission of a hearsay statement does not violate the Confrontation Clause "if it bears adequate 'indicia of reliability,'" id. at 66. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Id.

In this case, the state trial judge allowed the admission of a hearsay statement made by Pamela on the day of her mother's death under Oklahoma's excited utterance exception to the hearsay rule. See Okla. Stat. tit. 12, § 2803(2) (1991). This is a firmly rooted hearsay exception. See White v. Illinois, 502 U.S. 346, 355 n.8 (1992); Fed. R. Evid. 803(2); 2 McCormick on Evidence § 272 (John W. Strong ed. 5th ed. 1999). On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the trial court's ruling in a divided opinion. See Paxton, 867 P.2d at 1320-21 (majority opinion), 1331-32 (Lane, J., concurring in result but disagreeing with majority on excited utterance issue), 1332 (Chapel, J., dissenting). The federal district court disagreed, holding that the admission of Pamela's statement violated Mr. Paxton's Confrontation Clause rights because it did not fall within the excited utterance exception and lacked reliability. In addition, the court was persuaded that Mr. Macy's speculation during closing argument that the charges had been dismissed because Pamela was afraid to testify against her father made the admission of her statement highly prejudicial.

. . . .

The Supreme Court has rejected the argument that a state court determination admitting hearsay under state law is dispositive of a petitioner's habeas claim that his constitutional confrontation rights were violated by the admission. See Lee v. Illinois, 476 U.S. 530, 539 (1986) (admissibility of hearsay evidence as a matter of state law does not resolve Confrontation Clause issue). Circuit courts have elaborated on this proposition.

Plainly, the mere fact that a state court, in admitting evidence, tucks it into a pigeonhole which bears the label of a time-honored hearsay exception cannot be entirely dispositive. Our habeas powers are not so blunted that we pay obeisance to the symbols of justice at the expense of substance. Thus, the state court record must show a sufficient factual predicate rationally to support the affixation of the label.

Puleio v. Vose, 830 F.2d 1197, 1207 (1st Cir. 1987). See also Martinez v. McCaughtry, 951 F.2d 130, 134 (7th Cir. 1991) (to decide Confrontation Clause issue, "we go beyond the inference of reliability, looking to the record to see if it supports admission under [the excited utterance] exception"); Crespin v. New Mexico, 144 F.3d 641, 648 n.4 (10th Cir. 1998) ("We are charged with examining the [hearsay] statement in its entirety in the context of the trial record and 'in light of all the surrounding circumstances,' to determine whether the state court's application of the legal test . . . is constitutionally sound.") (citation omitted), cert. denied 119 S. Ct. 378 (1998).

In considering a Confrontation Clause claim on habeas, therefore, we review a state court decision by assessing whether it is reasonably supported by the record and whether its legal analysis is constitutionally sound. This approach is congruent with the standards of review imposed by the AEDPA, under which we may grant habeas relief only when a state court decision on the merits involves an unreasonable application of clearly established federal law as determined by the Supreme Court, or is based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C.
 . . . .

It is the state's burden to establish that the statement was sufficiently reliable to meet the constitutional standard. See Wright, 497 U.S. at 816. If the hearsay statements do not fall within a firmly rooted hearsay exception, "they are 'presumptively unreliable and inadmissible for Confrontation Clause purposes,' and 'must be excluded, at least absent a showing of particularized guarantees of trustworthiness.'" Id. at 818 (citations omitted). Such guarantees of trustworthiness must come from "the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief," id. at 820, and "must be at least as reliable as evidence admitted under a firmly rooted hearsay exception," id. at 821 (citations omitted).

Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.

Id. Under this standard, we hold that on the record before us the state has not met its burden to rebut the presumption that Pamela's statement was unreliable for Confrontation Clause purposes. The admission of her statement therefore violated Mr. Paxton's right to confront the witness and to test her statement through cross-examination.

B. Exclusion of Mitigating Evidence

We next consider Mr. Paxton's argument that he was denied the right to present mitigating evidence. This claim arises from the trial court's refusal to admit a court order stating that Mr. Paxton had been cleared in his wife's death by a polygraph examination. In ruling the polygraph results inadmissible, the state courts relied on settled state law holding that the results of a polygraph test may not be admitted for any purpose. See Paxton, 867 P.2d at 1323. The federal district court concluded that in relying on this rule the state courts violated clearly established federal law, which holds that state evidentiary rules may not be used to deny a capital defendant's rights under the Eighth and Fourteenth Amendments to present mitigating evidence as a basis for a sentence less than death. On appeal, the state argues that no constitutional violation resulted from the exclusion of this evidence because the Supreme Court has recognized that polygraph results are unreliable. In so doing, the state relies on a Supreme Court case not relevant to a capital sentencing proceeding and disregards or attempts to distinguish controlling cases.

During the sentencing proceeding, the bulk of the state's evidence was directed to the circumstances surrounding the death of Gloria Paxton. In addition to presenting Lavern Smith's testimony on Pamela's hearsay statements, the state presented testimony from Gloria's son describing events on the day of the shooting, testimony from the medical examiner who had examined Gloria's body and who described the shotgun wound, testimony from the police officer who had gathered evidence at the scene and taken pictures of Gloria's body, the pictures themselves, testimony from a ballistics expert who examined the shotgun that killed Gloria and stated his opinion that it would not have discharged accidentally, and testimony from a homicide detective who did the follow up investigation of the shooting and who testified that after his reports were turned over to the district attorney's office, the case was dismissed.

In order to counter the possibility that the jury would conclude from this evidence that Mr. Paxton had deliberately killed Gloria with a shotgun, defense counsel sought to admit an order entered by a state court judge dismissing the prosecution of Mr. Paxton for the shooting at the request of the then-district attorney. The order itself recited that the district attorney moved the court to dismiss the proceeding "for the following reasons, to wit: TO BEST MEET THE ENDS OF JUSTICE. . . DEFENDANT CLEARED BY POLYGRAPH TEST." Def's. Ex. 5 (admitted during in camera proceedings, see Trial Tr., Rec., vol. VI, at 1357). The state objected to the language stating that Mr. Paxton had been cleared by a polygraph test. The trial judge sustained the objection and directed all parties to refrain from referring to the polygraph results. See supra note 7. Thereafter the parties stipulated to the fact that after review of the investigation into Gloria's death, criminal proceedings against Mr. Paxton were dismissed at the request of the district attorney.

In closing argument on behalf of the state, Mr. Macy made the following remarks:

I'll tell you what, ladies and gentlemen, he had the same opportunity to put evidence on that witness stand about that killing that we did. Everything ­ if he had any evidence ­ if the defense had any evidence to show that that crime didn't happen exactly the way that our witnesses told you it did he could have put a witness on the witness stand. You didn't hear from anybody.

. . . And there could be a lot of reasons as to why it [was dismissed] ­ one of them may have been the fact that Pam Paxton wouldn't talk about it and she was the only eyewitness that witnessed it and who knows. We don't know why it was dismissed.

Trial Tr., Rec., vol. VI, at 1392. In so doing, Mr. Macy clearly and deliberately made two critical misrepresentations to the jury: he told the jury that Mr. Paxton had been given the opportunity to present any evidence showing that he had not killed his wife, and he told the jury that the reason for the dismissal was unknown. In fact, as Mr. Macy well knew, his objections had prevented Mr. Paxton from presenting evidence that he had passed a polygraph test in connection with the shooting, and that those test results were the reason for the dismissal. It is against this factual background that we assess whether Mr. Paxton's inability to present mitigating evidence rendered his sentencing proceeding constitutionally invalid.

In Skipper v. South Carolina, 476 U.S. 1 (1986), the defendant was prevented during the sentencing phase of his capital trial from presenting disinterested witnesses who would have testified he had made a good adjustment to jail during his pretrial incarceration. The state trial judge ruled that this evidence was irrelevant under state law and therefore inadmissible. The prosecutor in closing argument contended the defendant would be a discipline problem in prison and would likely rape other prisoners. The defendant argued on appeal that evidence of his good behavior in jail was both relevant and mitigating and that its exclusion was constitutional error under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982).

The Supreme Court agreed and reversed the death penalty, reiterating its holding in Lockett and Eddings.

There is no disputing that this Court's decision in Eddings requires that in capital cases "'the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'"

Skipper, 476 U.S. at 4 (quoting Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S. at 604)) (emphasis in original). Accordingly, the Court held that the defendant was deprived of his right to place relevant evidence in mitigation before the jury. See id. at 8. The Court noted that the relevance of the evidence was underscored in that case

by the prosecutor's closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death "on the basis of information which he had no opportunity to deny or explain."

Id. at 5 n.1 (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)). The concurrence in Skipper agreed with the result reached by the majority but would have reversed on the ground that the defendant was not allowed to rebut evidence and argument used against him, citing Gardner. See id. at 9 (Powell, J. concurring). As did the majority, the concurrence pointed out that the constitutional error was aggravated by the prosecutor's closing argument, which emphasized the very evidence the excluded testimony would have rebutted. See id. at 11. Significant for our purposes here, the Court held that the prosecutor's argument both underscored the relevance of the evidence and aggravated the error arising from its exclusion, and found reversible error notwithstanding the fact that the excluded evidence was inadmissible under state law.

Also relevant to our inquiry is the Supreme Court's treatment in Green v. Georgia, 442 U.S. 95 (1979) (per curiam), of facts analogous to those before us. There the trial court had denied the introduction of evidence that was inadmissible hearsay under state law. Citing Lockett, the Court held the exclusion constitutional error, stating that "[r]egardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment" because it "was highly relevant to a critical issue in the punishment phase of the trial." Id. at 97. Moreover, in holding the evidence sufficiently reliable despite its hearsay status, the Court pointed out that "the State considered the testimony sufficiently reliable to use it against [a codefendant], and to base a sentence of death upon it." Id. Accordingly, the Court held that in such circumstances "'the hearsay rule may not be applied mechanistically to defeat the ends of justice.'" Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Here, as in Green, the excluded evidence was highly relevant to punishment, and the state had considered it sufficiently reliable to warrant the dismissal of the earlier charges against Mr. Paxton.

Finally, in Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court addressed the applicability of state evidentiary rules when they interfere with a defendant's constitutional right to testify in his own defense. At issue there was a per se rule excluding a witness' hypnotically refreshed testimony. The Court held that application of a state per se rule of inadmissibility designed to ensure reliable testimony "does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections." Id. at 61. The Court ruled the exclusion there infringed on the defendant's right to testify, pointing out that the challenged testimony was corroborated by other evidence. See id. at 62. In the instant case, the reliability of the excluded polygraph test was corroborated by the fact that the state relied upon it in dismissing the earlier charges against Mr. Paxton.

This Supreme Court authority makes clear that a state court may not apply a state rule of evidence in a per se or mechanistic manner so as to infringe upon a defendant's constitutional right to a fundamentally fair trial and to present mitigating evidence in a capital proceeding. Indeed this court and others have viewed the above cases as controlling on the issue in similar circumstances. In Dutton v. Brown, 812 F.2d 593 (10th Cir. 1987), for example, after reviewing the holdings in Lockett, Eddings, Green, and Skipper, we held that constitutional error occurred when mitigating evidence was excluded in the sentencing phase of a capital case on the basis of a state witness sequestration rule. We pointed out that "[t]he Supreme Court has been exceedingly cautious to ensure that a person found guilty of a capital offense is given every opportunity to present potentially mitigating evidence that might form the basis for a sentence less than death." Id. at 602. See also Gonzales v. Lytle, 167 F.3d 1318 (10th Cir. 1999) (admission of witness' inculpatory statements and exclusion of exculpatory recantation rendered trial fundamentally unfair and required grant of habeas relief).

The Ninth Circuit has also held under very similar circumstances that the exclusion of polygraph evidence under state evidence rules violated a defendant's right to present relevant mitigating evidence in a capital case. See Rupe v. Wood, 93 F.3d 1434, 1439-41 (9th Cir. 1996). There the state courts, citing Lockett, had recognized that "under controlling United States Supreme Court authority, relaxed standards govern the admission of mitigating evidence during the penalty phase of a death penalty trial." Id. at 1439. Nonetheless the state court summarily affirmed the exclusion of polygraph evidence as unreliable. The Ninth Circuit affirmed the grant of habeas corpus relief, holding that the refusal to admit the polygraph evidence at sentencing "violated the principle of Lockett and Eddings by interfering with the jury's ability to weigh the mitigating factors." Id. at 1440. In holding the polygraph results relevant, the court pointed out that the evidence not only bore on the defendant's role in the crimes, it was also relevant to the state's case because it would have refuted assertions made by the prosecutor in closing argument. See id. at 1441.

Notwithstanding the compelling authority discussed above, the state argues on appeal that no constitutional violation occurred here, relying heavily on United States v. Scheffer, 523 U.S. 303 (1998). There the defendant in a court-martial proceeding sought admission of polygraph results to support his testimony that he had not knowingly used drugs. The military judge excluded the results in reliance upon a military rule of evidence making polygraph evidence inadmissible. The Supreme Court held that application of the rule did not abridge the defendant's right to present a defense. Scheffer is distinguishable in at least one dispositive respect: it did not involve a capital defendant's constitutional right to present mitigating evidence. Indeed the Court there was careful to distinguish its facts from those in which the exclusion of evidence "has infringed upon a weighty interest of the accused," id. at 308, or "implicate[s] a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents," id. at 309.

The Court pointed out that state evidentiary rules "do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Id. at 308 (citing Rock). Significantly, the Court specifically distinguished Rock, which involved a state evidentiary rule that infringed on the right to testify on one's own behalf; Chambers, 410 U.S. 284, which involved state evidentiary rules that infringed on the right to present witnesses in one's own defense and to confront and cross-examine the witnesses; and Washington v. Texas, 388 U.S. 14 (1967), which involved a state evidentiary rule that denied the right to compulsory process for obtaining favorable witnesses. See id. at 316. After pointing out that "[t]he exclusions of evidence that we declared unconstitutional in those cases significantly undermined fundamental elements of the defendant's defense," id. at 315, the Court upheld the evidentiary rule barring the admission of polygraph results because as applied in the case before it the rule "did not implicate any significant interest of the accused," id. at 316-17, or significantly impair the defense, id. at 317.(9)

Here, the mechanistic application of a per se evidentiary rule operated to exclude evidence that proceedings against Mr. Paxton in the death of his wife were dismissed because in the district attorney's view he had been cleared by a polygraph examination. Under our view of controlling Supreme Court authority, this exclusion denied Mr. Paxton his right to present mitigating evidence as a basis for a sentence less than death. Moreover, in view of the prosecutor's mendacious closing argument that Mr. Paxton had failed to refute the state's version of his wife's death, that the reason for the dismissal of charges against him was unknown, and implying that his daughter had not testified against him out of fear, Mr. Paxton was denied his due process right to explain or deny the evidence against him. Because Scheffer specifically limited its holding to cases in which exclusion did not undermine the accused's defense or implicate other significant interests, it is inapposite here. We thus conclude that the state court decision affirming Mr. Paxton's death penalty despite the exclusion is contrary to clearly established federal law as determined by the Supreme Court.

C. Prosecutorial Misconduct

Finally, we address directly Mr. Paxton's claim that Mr. Macy's closing argument resulted in constitutional error requiring habeas relief. As we have mentioned, the state presented copious evidence on the circumstances surrounding the shooting of Gloria Paxton from which the jury would likely infer that Mr. Paxton was responsible for her death. In addition, the state successfully prevented Mr. Paxton from telling the jury that the former district attorney had dismissed the case upon concluding that Mr. Paxton had been cleared by polygraph results. In closing argument, Mr. Macy took advantage of Mr. Paxton's inability to present the reason for the dismissal, deceitfully telling the jury that Mr. Paxton had failed to avail himself of the opportunity to counter the state's case and inviting the jury to draw an adverse inference from that failure.

I'll tell you what, ladies and gentlemen, he had the same opportunity to put evidence on that witness stand about that killing that we did. . . . [I]f the defense had any evidence to show that that crime didn't happen exactly the way that our witnesses told you it did he could have put a witness on the witness stand. You didn't hear from anybody.

Trial Tr., Rec., vol. VI, at 1392.

Mr. Macy then invited the jury to speculate on the reasons for the dismissal, implying that it was somehow improper or that it was because Pamela was afraid or reluctant to testify against her father:

Andy Coats [the former district attorney] didn't dismiss that case. The Assistant District Attorney did named Robert Mildfelt dismissed it. We have no . . . way of knowing whether Mr. Coats even knew about it or not. And there could be a lot of reasons as to why it wasn't ­ one of them may have been the fact that Pam Paxton wouldn't talk about it and she was the only eyewitness that witnessed it and who knows. We don't know why it was dismissed.

Id.
 

. . . .

The district court then determined that the admission of Pamela's hearsay statement was improper and prejudicial because it "had a substantial and injurious [e]ffect on the jury's determination whether [Mr. Paxton] was a continuing threat to society. More specifically, the prosecutor's speculation during closing argument that the charge was dismissed because Ms. Paxton was afraid to testify against her father made the admission of her testimony highly prejudicial." Id. at 41.
 

. . . .

We begin by rejecting summarily the state's invitation to parse the prosecutor's argument word by word in a vacuum and justify it on the ground that there was in fact no evidence in the record as to why the charge had been dismissed. The argument was clearly meant to be understood as inviting the jury to infer that Mr. Paxton had no evidence to rebut the state's assertion that he killed his wife and to speculate at Mr. Paxton's expense on the reasons for dismissal. While it may be true that Mr. Macy could not have commented on facts not in the record, rather than saying nothing he chose to misrepresent the reason for the absence of those facts.

We also disagree with the state's contention that the appropriate inquiry is whether the prosecutor's argument denied Mr. Paxton his right to a fundamentally fair sentencing proceeding under the analysis of prosecutorial misconduct set forth in Darden v. Wainwright, 477 U.S. 168 (1986). "When specific guarantees of the Bill of Rights are involved, [the Supreme Court] has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Accordingly, this court has drawn an important distinction between an ordinary claim of prosecutorial misconduct, which warrants habeas relief only when the entire proceeding is rendered fundamentally unfair, and a claim that the misconduct effectively deprived the defendant of a specific constitutional right, which may be the basis for habeas relief without proof that the entire proceeding was unfair. See Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990); see also Brecheen v. Reynolds, 41 F.3d 1343, 1355 (10th Cir. 1994); Yarrington v. Davies, 992 F.2d 1077, 1079-80 (10th Cir. 1993).

We agree with the district court that the misconduct which undisputedly occurred here was an integral part of the deprivation of Mr. Paxton's constitutional rights to present mitigating evidence, to rebut evidence and argument used against him, and to confront and cross-examine the state's witnesses. Because Mr. Macy's remarks infringed upon specific constitutional rights, Mr. Paxton may establish his entitlement to habeas relief without showing that the comments rendered his sentencing fundamentally unfair.(10)

We further conclude that Mr. Macy's comments had a substantial prejudicial effect on those rights by implying to the jury that Mr. Paxton had no evidence in mitigation, that the reason for the dismissal of the charges was suspect, and that his daughter was afraid to testify against him. These remarks cannot be characterized as an invited response, nor did the defense have any means for effectively rebutting them. See Darden, 477 U.S. at 182. We thus have no doubt that Mr. Macy's conduct crossed the line between a hard blow and a foul one, consequently giving rise to a valid constitutional claim.

We are mindful that we may not grant habeas relief on this claim unless the state court's ruling was contrary to or involved an unreasonable application of clearly established Supreme Court authority, or was based on an unreasonable determination of the facts in light of the evidence presented at trial. See 28 U.S.C. § 2254(d). In our view, both grounds of the AEDPA compel us to conclude that the state court's resolution of this claim is not entitled to deference. First, in considering whether the closing argument denied Mr. Paxton fundamental fairness, the state appellate court did not assess the remarks under the appropriate constitutional standard; indeed, the state court simply did not refer to controlling Supreme Court authority for guidance either directly or indirectly. In our view that authority compels the conclusion that the argument here prejudicially infringed on Mr. Paxton's constitutional rights. Second, in upholding the statements as properly based on the record, the state court disregarded the fact that the statements deliberately misrepresented the reason for the record's condition. We thus conclude that the state court ruling was both contrary to governing Supreme Court authority and based on an unreasonable view of the state court proceedings.

In sum, we hold that Mr. Paxton was denied his right to confront the witnesses against him, his right to present mitigating evidence in support of a sentence less than death, and his due process rights to explain or deny the evidence against him. We further hold that the prosecutorial misconduct at issue was an integral and prejudicial part of that denial. We therefore turn to the propriety of the remedy ordered by the district court.

Noland v. Dixon No. 3:88CV217-MU (W.D.N.C. April 30, 1996)
North Carolina is not an opt-in state because it does not meet the requirements of Chapter 154.

Schlup v. Bowersox No. 4:92CV443 JCH (E.D.Mo. May 2, 1996)
Missouri is not an opt-in state because it does not currently have a mechanism for appointment and payment of counsel that complies with Chapter 154.

DeSantis v. Calderon No. CIV S-93-1083 WBS JFM (E.D.Cal. July 3, 1996)
The court reiterated that California is not an opt-in state and cited Ashmus (see infra).

Rahman v. Bell 927 F.Supp. 262, 266 (M.D.Tenn. 1996)
Both parties agreed that § 107 of AEDPA did not apply because Tennessee had not met the preconditions necessary for application of that section.

Austin v. Bell 927 F.Supp. 1058, 1062 (M.D.Tenn. 1996)
Tennessee is not an "opt-in" state entitled to the special death penalty procedures in Chapter 154 because the state imposes insufficient standards for attorney competency in capital cases in state habeas. The court noted:

It is crucial under the Act that only qualified attorneys be appointed to represent habeas petitioners in capital cases because the Act does not permit the ineffectiveness or incompetence of counsel during State or Federal post conviction proceedings to be grounds for relief in a proceeding arising under section 2254.

It follows that Tennessee's current standard, requiring "an appointed attorney to be, at a minimum, 'a competent attorney licensed in this state,'" does not fulfill the vision of the Act. (internal citation omitted).

Ashmus v. Calderon 935 F.Supp. 1048 (N.D.Cal. 1996), aff’d, 123 F.3d 1199 (9th Cir. 1997), cert. granted in part, 118 S.Ct. 596 (1997)
The court determined that California has a unitary system of review and concluded that the state was not an "opt-in" state under § 2265 because (1) California's scheme for appointment and payment of counsel precludes payment for raising collateral issues, that is, issues outside the appellate record, in contravention of the requirements of § 2265(a), 935 F.Supp. at 1070; (2) no rule of court or statute exists in California to impose competency standards for appointed counsel, 935 F.Supp. at 1072; (3) the competency standards set forth by the state fail to mention original proceedings and require no experience in state habeas litigation, 935 F.Supp. at 1074; and (4) the state does not make a meaningful offer of counsel, as demonstrated by the fact that many inmates are still without counsel and may wait four years to obtain counsel. 935 F.Supp. at 1074.

Zuern v. Tate 938 F.Supp. 468 (S.D. Oh. Aug. 7, 1996)
The federal magistrate found that Ohio was not an opt-in state.

Banks v. Horn 939 F.Supp. 1165, 1168 (M.D.Pa. 1996), vacated on other grounds, 126 F.3d 206 (3rd Cir. 1997)
The court held that because Pennsylvania’s present unitary system (enacted in January, 1996) was not in place at the time of Banks’ conviction and appeals, Chapter 154 did not apply to his case.

United States ex rel. Franklin v. Gilmore, No. 96-C-5038 (N.D.Ill. Sept. 24, 1996)
Illinois Attorney General submitted a pleading pursuant to a court order conceding that "Illinois is not currently in compliance with the opt-in provisions of section 107 of the Antiterrorism and Effective Death Penalty Act of 1996."

Wright v. Angelone 944 F.Supp. 460, 468 (E.D.Va. 1996)
The court held that Virginia was not an opt-in jurisdiction, finding that

Congress intended for states to establish a clear mechanism that can be seen and relied upon by indigent capital defendants, rather than a loose collection of statutes and regulations which lack binding enforcement mechanisms and which may be subject to differing interpretations. It is no surprise that Virginia does not comply with section 2261, since the Virginia General Assembly has not met since Congress enacted section 2262 and the General Assembly could not have anticipated the details of this long debated amendment to habeas law. However until Virginia develops a comprehensive mechanism which meets the qualification outlined in section 2261, the habeas amendments in Chapter 154 of the AEDPA will not apply to capital cases in Virginia.

Satcher v. Netherland 944 F.Supp. 1222 (E.D.Va. 1996), aff’d in part, rev’d in part on other grounds, 126 F.3d 561 (4th Cir. 1997), cert. denied, 118 S.Ct. 595 (1997)
The court held that Virginia was not an "opt-in" state because it does not require compensation and reimbursement of litigation expenses for post-conviction counsel. 944 F.Supp. at 1241 ("the short answer is no"). The court rejected Virginia’s "substantial compliance" argument--that Virginia in fact paid counsel in capital habeas proceedings--because the statute requires a "mechanism" and there is no "statute establishing a mechanism for the payment of those fees and expenses." Id. The court did find that Virginia had standards of competency which had been "set and administered since July 1, 1992 by the Public Defender Commission." However, the court found that Virginia did not have a mechanism which offered competent post-conviction counsel to all prisoner sentenced to death. While Virginia argued it had a practice of offering counsel, the court concluded that "the plain language of the Act precluded a finding that a state’s practices suffice to qualify as an ‘opt-in’ state under the Act. Section 2261(b) requires that a State establish the mandatory mechanism ‘by statute, rule of its court of last resort, or by another agency authorized by State law’-- not by practice ." 944 F.Supp. at 1244. The mechanism must "be put down in a concrete fashion where it can be seen an relied upon, rather than be something which is subject to the vagaries of differing interpretations of what is done ‘in practice.’" Id. In conclusion, the court stated that "[s]trict interpretation of the stringent opt-in requirements. . . is not mere formalism," rather it "is necessary meaningfully to effectuate the quid pro quo arrangement which lies at the core of Chapter 154." 944 F.Supp. at 1245.

Jackson v. Johnson No. A 56-CA-716 SS (W.D.Tex. Oct. 29, 1996)
The court held that, while Texas had "de jure established a statewide mechanism," slip op. at 3, for appointment and payment of counsel, it was not currently an opt-in state because the program was underfunded and many inmates were still without counsel. Id. In footnote 2, the court made clear that it was "not suggesting that §2261 requires a state capital defendant to have had the benefit of appointed counsel at his state habeas proceeding in order to be subject to the expedited procedures of Chapter 154." Slip op. at 4, n.2. That is, once a state establishes its mechanism for appointment and compensation of counsel it is entitled to the benefits of Chapter 154 in all cases, regardless of whether or not a particular petitioner had received the benefit of the appointment mechanism.

Hamblin v. Anderson 947 F.Supp. 1179, 1181 (N.D.Ohio 1996)
The court rejected Ohio’s claim that it qualifies as an "opt-in" jurisdiction, finding that the state law right to counsel in post conviction proceedings does not satisfy §2261 because "[t]he entitlement to counsel is made contingent, by statute, upon the discretion of the public defender." The court rejected the state’s assertion that the discretion is never exercised, and held that this discretion, "coupled with the state’s failure to appoint counsel by an entry of an order by a court . . . prevents Ohio from ‘opting-in.’"

Pyles v. Johnson No. 396 CV 2838-D (N.D.Tex. Dec. 2, 1996)
In light of Mata, see infra, the court entered an agreed order of dismissal without prejudice of plaintiffs’ class action which sought declaratory and injunctive relief with regard to whether Texas was an opt-in state.

Hill v. Butterworth 1997 WL 16132 (N.D.Fla. Jan. 16, 1997), remanded, 147 F.3d 1333 (11th Cir. 1998)
Ordering dissolution of injunction and dismissal of complaint for want of a justiciable case or controversy) (In this class action, the court permanently enjoined the state of Florida "from invoking or asserting, in any state or federal proceedings, that the State of Florida may avail itself of the procedures in Chapter 154 . . . until such time as Defendants have demonstrated that they have satisfied all of the ‘opt-in’ provisions . . ." Id. at *12. The court defined the class as : "All prisoners who have been sentenced to death by the State of Florida and are currently awaiting execution pending resolution of their state and federal challenges to their state convictions and sentences." Id. at *9. The court based its decision on Florida’s continued lack of competency standards for post conviction counsel, and Florida’s failure to make a meaningful offer of counsel to eligible prisoners. The court specifically declined to address whether the lack of caseload standards at CCR renders post-conviction counsel incompetent and whether underfunding of CCR precludes it from providing the acceptable level of representation. See id. at *12.

Death Row Prisoners of Pennsylvania v. Ridge
948 F.Supp. 1258, 1267 (E.D.Pa. 1996)
The district court denied defendants’ motion to dismiss the class action filed by six Pennsylvania death row inmates seeking a declaratory judgment that Pennsylvania had not complied with the opt-in requirements of Chapter 154 and therefore could not seek application of the 180 day statute of limitations for filing habeas petitions. The court found that the Younger doctrine did not require abstention in this case and that the court did have authority to issue a declaratory judgment on the issues presented and to appropriately enjoin the defendants.

Strickler v. Netherland CA No. 3:95cv924 (E.D.Va. Feb. 2, 1997)
The court denied the state’s motion to reschedule an evidentiary hearing pursuant to Fourth Circuit Judicial Council Order No. 113, which recommends, but does not require, that non-Chapter 154 cases be finally adjudicated within 180 days. The court concluded by stating that, "since Virginia does not qualify as an opt-in state for the case [a]t bar, and deeming it just and proper so to do, . . . respondent’s motion is denied."

Scott v. Anderson 958 F.Supp. 330, 332 (N.D.Ohio 1997)
The court held that Chapter 154 did not apply in this pre-Act case because, "given the discretion provided to public defenders [to refuse to pursue claims that do not have arguable merit], an indigent defendant who requests state appointed counsel is not certain to receive such assistance at the post-conviction stage." The court acknowledged that, in practice, capital litigants are not refused representation by the Ohio Public Defender, but "emphasize[d] that it is the explicit and detailed language chosen by Congress in Chapter 154 that mandates this result."

King v. Netherland 1997 WL 461906 at *7 (W.D.Va. Aug. 4, 1997), aff’d, 141 F.3d 1158 (4th Cir. 1998), cert. denied, ___S.Ct.___, 1998 WL 407134 (1998)
The court declined to apply the Chapter 154 provisions in this capital case because "Virginia does not satisfy the ‘opt-in’ requirements . . ."

Mosley v. French 961 F.Supp. 889, 893 n.3 (M.D.N.C. 1997)
The court noted the existence of the Fourth Circuit Judicial Council policy encompassing all capital cases which "declares that all cases should be decided in the proscribed [sic] time period as if the State had adopted and implemented mechanisms with respect to attorney qualifications and appointments mandated by Congress for expedited proceedings."

Ward v. French 989 F.Supp. 752, 757 (E.D.N.C. 1997)
The court stated, without discussion, that "North Carolina does not qualify for application of chapter 154's new standards under either opt-in provision."

Weeks v. Angelone 4 F.Supp.2d 497, 506-07 (E.D.Va. 1998), appeal dismissed, ___F.3d___, 1999 WL 288504 (4th Cir. May 10, 1999)
The court first held that, while "Virginia clearly is in compliance with the third [offer of counsel] and fourth [entry of court order appointing counsel or explaining why counsel was not appointed] ‘opt-in’ requirements," the state "has failed to meet the first ‘opt-in’ requirement." Specifically, Virginia has not established "a comprehensive mechanism for the appointment, compensation, and payment of reasonable litigation expenses for counsel." Thus, Virginia remains ineligible for the benefits of Chapter 154.

Royal v. Netherland 4 F.Supp.2d 540, 550 (E.D.Va. 1998)
Citing the opinion in Satcher v. Netherland, 944 F.Supp. 1222 (E.D.Va. 1986), the court held Chapter 154 of the AEDPA inapplicable to petitioner’s case.

Fugate v. Turpin 8 F.Supp.2d 1383, 1386 n.1 (M.D.Ga. 1998)
The court found that Georgia has not satisfied the opt-in requirements, and therefore is not entitled to the benefits of Chapter 154.

Colvin-El v. Nuth 1998 WL 386403 (D.Md. July 6, 1998)
In this Maryland capital case, the court considered whether Maryland has met the requirements for opting in to Chapter 154. The court noted in footnote 3 that this determination must be made as of the date petitioner’s post-conviction relief application was finally denied by the Maryland Court of Appeals. Looking to the opt-in criteria set forth at 28 U.S.C. §2261(b), the court first found that "Maryland does not pay reasonable attorneys fees." Id. at *4. While the court accepted that "Maryland need not pay market rates to comply with Chapter 154, it must pay compensation at least sufficient to ensure an adequate supply of competent counsel." Id. at *4. The court went to explain:

The evidence in this case demonstrated that the State paid nowhere near market rates. The evidence established that those attorneys who the State was able to enlist were motivated almost exclusively by their sense of public service and civic duty. While the desire of some attorneys to do good can undoubtedly be a factor in the determination of whether the level of compensation has reached a "reasonable" level, it cannot be the sole factor. As the evidence in Booth demonstrated, the overhead of running a law office in Maryland, exclusive of attorney compensation, is in excess of $50 per hour. To the extent that the capital post-conviction attorneys are compensated at a rate substantially below the break-even point of doing business [in Maryland, $30 per hour out of court, $35 per hour in court], it cannot be said that the compensation standards established by Maryland can ensure the appointment of competent counsel. In the view of the Court, the requirements established by Chapter 154 were designed to remedy "the inadequacy of using volunteer lawyers." See L. Powell, Remarks at the Eleventh Circuit Judicial Conference 8-9 (May 12, 1986). An offer of compensation insufficient to meet expenses is little more adequate. While the Court believes that Maryland has thus far done an admirable job in securing post-conviction counsel, Chapter 154 requires affirmative steps to assure that adequate counsel is provided. This Court joins Chief Judge Motz in concluding that the attorney compensation standards employed by the State fall short of this requirement.

Id. at *4.

Turning to the requirement of standards for attorney competency, the court explained that "the inquiry should not be limited to whether capital defendants are ultimately represented by competent counsel. This is undoubtedly required, but Chapter 154 seems to require something more -- that there be a system in place to assure that defendants as of right are provided with adequate representation." Id. at *5. The court therefore rejected the state’s "reliance upon the ‘good faith’ of the [Office of the Public Defender, which appoints counsel] and the ‘reality’ of the performance of the attorneys appointed," concluding that "Chapter 154 commands a more formal system to assure attorney competence." Id. at *5. As to the level of qualifications a post-conviction attorney should possess, the court opined that, "[g]iven the extraordinarily complex body of law and procedure unique to post-conviction review, an attorney must, at a minimum, have some experience in that area before he or she may be deemed ‘competent.’" Id. at *6. Furthermore, "[b]ecause Chapter 154 bars any claim of ineffective assistance of counsel on post-conviction review, (. . .) the effectiveness of counsel must be assured by the appointment of competent counsel."

In Maryland, the attorney competency statute, which applies only to panel attorneys (who handle the vast majority of capital post-conviction cases), and not employees of the Office of the Public Defender, who are only required to be members of the Bar, "requires only that an attorney ‘participate’ in at least ten serious criminal matters," which the court pointed out would allow an attorney "who had negotiated ten plea agreements in robbery cases [to] be deemed ‘competent’ to represent a capital defendant." Id. at *6. From this the court concluded that, "[i]nasmuch as Maryland does not require its appointed post-conviction attorneys to be even minimally competent in post-conviction practice, the standards promulgated do not satisfy the requirement of Chapter 154." Id. at *6.

Finally, the court found that Maryland does not satisfy Chapter 154's requirement of a court order appointing counsel both because it "does not provide a court-appointative system for retention of post-conviction counsel," and because it does not appoint counsel "without unreasonable delay." Id. at *7. As to the latter reason, the court observed that the average time between affirmance on direct appeal and appointment of post-conviction counsel in Maryland is 10.59 months. Considering this in conjunction with Chapter 154's tight time limits, the court stated:

The statute requires the six- month time limit to begin in every case after final affirmance on direct appeal and is not tolled until the filing of a petition for certiorari with the U.S. Supreme Court or a petition for state post-conviction relief. . . . Inasmuch as Maryland does not permit a defendant who needs counsel to go before a court and receive counsel, the Maryland system does not entitle it to the accelerated procedures of Chapter 154.

Id. at *8.

The court concluded by stating that, "[i]nasmuch as Chapter 154 represents a bargain between Congress and the states to provide for expedited federal habeas review where the states provide certain safeguards to ensure accelerated state collateral review, the Court finds that Maryland has not lived up to its end of the deal." Id. at *8. The state’s motion to dismiss the petition as untimely for failure to file within Chapter 154's six-month limitation period was therefore denied.

Oken v. Nuth 30 F.Supp.2d 877 (D.Md. 1998)
The court held that "Maryland is not an Opt-in State so as to qualify for the shortened periods of review set out in the AEDPA." Noting its "virtually total agreement with" the analysis of the opt-in question in Booth v. Maryland, 940 F.Supp. 849 (D.Md. 1996), the court highlighted three main reasons for concluding that Maryland has not achieved opt-in status:

1) Maryland does not have codified "competency standards" for the appointment of post-conviction counsel as required by 28 U.S.C. § 2261(b).

2) The compensation rates for these attorneys do not satisfy the statute.

3) Although commercial photocopying expenses are fully reimbursable under the State's plan and computerized legal research is reimbursable with the proviso that the payment for computerized legal research expenses and attorney's fees can not exceed $12,500.00, the reimbursable sums are not sufficient to raise the attorney compensation to an otherwise reasonable level within the meaning of the statute.

Ashmus v. Calderon 31 F.Supp.2d 1175 (N.D.Cal. 1998)
In a lengthy and detailed order, the district court held that, at least with regard to petitioner, California does not qualify for the benefits of Chapter 154. Before detailing the numerous deficiencies in California’s system, the court outlined Chapter 154's "quid pro quo" and stated that, "[u]nless a state affirmatively establishes that each condition described in Chapter 154 has been met, it may not claim the chapter’s benefits. . . . This is the price of stronger finality rules and greater deference to state habeas proceedings." 31 F.Supp.2d at 1180. The court also determined that "in order to apply Chapter 154's expedited review provisions retroactively [to petitioner], California must show that qualifying procedures were in place when the capital defendant would have been entitled to the benefits prescribed by these procedures. . . . In a unitary review state such as California, the qualifying procedures should be present from the date appellate counsel is appointed." 31 F.Supp.2d at 1182. The court further identified two "consequences" that flow from the quid pro quo relationship: "First, as the party seeking to obtain the benefit of Chapter 154's expedited review provisions, the burden is properly placed on the state to demonstrate that all of the qualifying procedures have been established. . . . Second . . . the language of the qualifying procedures and the quid pro quo structure of Chapter 154 demand strict rather than substantial compliance with all preconditions." 31 F.Supp.2d at 1183.

As to the state’s claim that it satisfies the opt-in criteria, the court concluded that "California did not become a unitary review state until more than two years after the date Ashmus’ appellate counsel was appointed," and that California had not established an acceptable mechanism for the offer, appointment, compensation and payment of competent counsel. Specifically, although counsel is offered to all death sentenced inmates in California, "in many cases it takes years to actually appoint counsel after an offer is accepted." 31 F.Supp.2d at 1186. The court also identified the fact that "California’s offer and appointment mechanism" is made up of "nonbinding procedures" as an "equally fatal defect" in light of Chapter 154's requirement of a "mandatory mechanism." 31 F.Supp.2d at 1187. Further, the court found California’s provisions for compensation and payment of reasonable litigation expenses unable to satisfy the opt-in requirements because, "[a]t the outset of representation . . . appellate counsel [under California’s system] has no duty, authority or funding to find out whether habeas claims exist, and unless a factual predicate for such claims is discovered in the course of preparing claims for direct appeal, there remains no duty, authority or funding to investigate." 31 F.Supp.2d at 1188. The court highlighted the deficiency in California’s funding scheme by comparing it with the federal scheme under §848(q) which, although not the standard a state must meet to opt in, nevertheless "reflects what Congress likely had in mind, i.e., funding for all reasonable expenses." 31 F.Supp.2d at 1189. Finally, the court concluded that California’s competency standards are unsatisfactory because they do not meet §2265(a)’s requirement that competency standards be established by rule of court or statute, and "compliance in practice is not sufficient . . ." 31 F.Supp.2d at 1192.

Upcoming Executions. Four executions scheduled for the first month of the year 2000 provide a disturbing picture of how the death penalty is practiced in the U.S. Often, it is the most vulnerable defendants who are selected for execution: the mentally ill, the poor and the poorly defended, and juvenile offenders. The American Bar Association has sent letters to Texas and Virginia, where these executions are scheduled, particularly objecting to the execution of juvenile offenders and defendants with mental retardation.

Christopher Thomas    Virginia      Scheduled execution: January 10, 2000.
Doubts about Thomas' capital conviction have developed as witnesses have come forward stating that Thomas' co-defendant, his girlfriend Jessica Wiseman, admitted that it was she who killed her mother, the crime for which Thomas was sentenced to death. Both Jessica and Thomas were juveniles at the time of the crime. Jessica, who was 14 when she solicited Thomas to kill her parents, has already been released. However, Thomas, who was 17 at the time, received the death penalty.

Steven Roach           Virginia      Scheduled execution: January 13, 2000.
Roach was 17 when he committed the crime for which he was sentenced to death. He is now only 23. Roach turned himself in and provided a full confession. He is deeply remorseful. He was never involved in any prior misconduct involving violence or weapons, yet a jury found beyond a reasonable doubt that Roach represented a continuing serious danger to society.

Larry Robison          Texas        Scheduled execution: January 21, 2000.
Robison has been diagnosed as paranoid schizophrenic, but was never given adequate treatment by the state of Texas. his first and only violent behavior was a bizarre episode of one night in which five people were killed.

Glen McGinnis          Texas        Scheduled execution: January 25, 2000.
McGinnis was sentenced to death for a murder committed during a robbery that occurred when he was 17 years old. He had never used a gun prior to this incident and never before been charged with any offense involving weapons. Fifteen states with the death penalty and virtually every country in the world forbid the execution of those who were under 18 at the time of their crime.

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ISSN: 1523-6684   Volume III, issue 1