The news of the week is news of the last few years, the federal courts are shutting their doors to claims of the denial of right by the poor, dispossessed and marginalized.  Three capital affirmances are reported this week, with a myriad of Supreme Court news.  Two men tied together in their conviction for killing three people in an Oklahoma supermarket in the 1980s are joined in a pair of Tenth Circuit decisions, where their joint trial and lack of severance was the chief issue Fox v. Ward & Fowler v. Ward; both gentlemen lost together as well. The Fifth Circuit in its only published capital case likewise denies relief by not granting even a certificate of probable cause on a host of ineffective assistance claims, as well as challenges to the sentencing phase instructions.

Five cases of note were handed  down as of the hour of publication from the Court this week.  In New York v. Hill the court holds counsel may waive in the absence of an on the record to the contrary the right to a speedy trial found in the interstate agreement on detainers. In  Illinois v. Wardlow the Court holds, 5-4 that avoidance of police alone, without any other palpable suspicion is sufficient for the government to stop a citizen for questioning and conduct a "pat down" search.  Likewise, the court landed a third blow against the body of the rights enjoyed against the strong arm of the state in  Martinez v. Court of Appeal of Cal., Fourth Appell. Dist where the court held there is no right to self-representation under the Sixth and Fourteenth Amendments on appeal.  Finally, in two cases not addressed more fully in other venues, the court continues to redefined the boundaries of federalism Reno v. Condon  Kimel v. Florida Bd. of Regents (discussed further in the National Law Journal at http://www.lawnewsnetwork.com/stories/A13199-2000Jan11.html).

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.

New York v. Hill The right to a speedy trial under the interstate agreement on detainers may be waived by counsel without the need for the accused to formally consent.

New York lodged a detainer against respondent, an Ohio prisoner, under the Interstate Agreement on Detainers (IAD). Respondent signed a request for disposition of the detainer pursuant to IAD Article III and was returned to New York to face murder and robbery charges. Article III(a) provides, inter alia, that, upon such a request, the prisoner must be brought to trial within 180 days, “provided that for good cause shown … , the prisoner or his counsel being present, the court … may grant any necessary or reasonable continuance.” Although respondent’s counsel initially agreed to a trial date set beyond the 180-day period, respondent subsequently moved to dismiss the indictment, arguing that the IAD’s time limit had expired. In denying the motion, the trial court concluded that defense counsel’s explicit agreement to the trial date constituted a waiver or abandonment of respondent’s IAD rights. After respondent was convicted of both charges, the New York Supreme Court, Appellate Division, affirmed the trial court’s refusal to dismiss for lack of a timely trial. The State Court of Appeals, however, reversed and ordered that the indictment be dismissed; counsel’s agreement to a later trial date, it held, did not waive respondent’s IAD speedy trial rights.

Held:  Defense counsel’s agreement to a trial date outside the IAD period bars the defendant from seeking dismissal on the ground that trial did not occur within that period. This Court has articulated a general rule that presumes the availability of waiver, United States v. Mezzanatto, 513 U.S. 196, 200—201, and has recognized that the most basic rights of criminal defendants are subject to waiver, Peretz v. United States,501 U.S. 923, 936. For certain fundamental rights, the defendant must personally make an informed waiver, but scheduling matters are plainly among those for which agreement by counsel generally controls. Requiring the defendant’s express assent for routine and often repetitive scheduling determinations would consume time to no apparent purpose. The text of the IAD, by allowing the court to grant “good-cause continuances” when either “prisoner or his counsel” is present, contemplates that scheduling questions may be left to counsel. Art. III(a) (emphasis added). The Court rejects respondent’s arguments for affirmance: (1) that the IAD’s provision for “good-cause continuances” is the sole means for extending the time period; (2) that the defendant should not be allowed to waive the time limits given that they benefit not only the defendant but society generally; and (3) that waiver of the IAD’s time limits can be effected only by an affirmative request for treatment contrary to, or inconsistent with, those limits. Pp. 3—8. 92 N. Y. 2d 406, 704 N. E. 2d 542, reversed.

Accused of converting a client’s money to his own use while employed as a paralegal, petitioner Martinez was charged by California with grand theft and the fraudulent appropriation of another’s property. He chose to represent himself at trial before a jury, which acquitted him of theft but convicted him of embezzlement. He then filed a timely notice of appeal, a motion to represent himself, and a waiver of counsel. The California Court of Appeal denied his motion to represent himself based on its prior holding that there is no constitutional right to self-representation on direct appeal under Faretta v. California,422 U.S. 806, in which this Court held that a criminal defendant has a constitutional right to conduct his own defense at trial when he voluntarily and intelligently elects to proceed without counsel, id., at 807, 836. The state court had explained that the right to counsel on appeal stems from the Due Process and Equal Protection Clauses of the Fourteenth Amendment, not from the Sixth Amendment on which Faretta was based, and held that the denial of self-representation at this level does not violate due process or equal protection. The California Supreme Court denied Martinez’ application for a writ of mandate.

Held:  Neither Faretta’s holding nor its reasoning requires a State to recognize a constitutional right to self-representation on direct appeal from a criminal conviction. Although some of Faretta’s reasoning is applicable to appellate proceedings as well as to trials, there are significant distinctions. First, the historical evidence Faretta relied on as identifying a right of self-representation, 422 U.S., at 812—817, is not useful here because it pertained to times when lawyers were scarce, often mistrusted, and not readily available to the average person accused of crime, whereas it has since been recognized that every indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel, see Gideon v. Wainwright, 372 U.S. 335. Moreover, unlike the right recognized in Faretta, the historical evidence does not provide any support for an affirmative constitutional right to appellate self-representation. Second, Faretta’s reliance on the Sixth Amendment’s structure interpreted in light of its English and colonial background, 422 U.S., at 818—832, is not relevant here. Because the Amendment deals strictly with trial rights and does not include any right to appeal, see Abney v. United States, 431 U.S. 651, 656, it necessarily follows that the Amendment itself does not provide any basis for finding a right to appellate self-representation. Faretta’s inquiries into historical English practices, 422 U.S., at 821—824, do not provide a basis for extending that case to the appellate process because there was no appeal from a criminal conviction in England until 1907. Third, although Faretta’s conclusion that a knowing and intelligent waiver of the right to trial counsel must be honored out of respect for individual autonomy, id., at 834, is also applicable in the appellate context, this Court has recognized that the right is not absolute, see id., at 835. Given the Court’s conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause. Under the practices prevailing in the Nation today, the Court is entirely unpersuaded that the risk of disloyalty by a court-appointed attorney, or the suspicion of such disloyalty, that underlies the constitutional right of self-representation at trial, see id., at 834, is a sufficient concern to conclude that such a right is a necessary component of a fair appellate proceeding. The States are clearly within their discretion to conclude that the government’s interests in ensuring the integrity and efficiency of the appellate process outweigh an invasion of the appellant’s interest in self-representation, although the Court’s narrow holding does not preclude the States from recognizing a constitutional right to appellate self-representation under their own constitutions. Pp. 3—12. Affirmed.

Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers Nolan and Harvey caught up with him on the street, Nolan stopped him and conducted a protective pat-down search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. He was convicted of unlawful use of a weapon by a felon. In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under Terry v. Ohio, 392 U.S. 1. The State Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to “go on one’s way,” see Florida v. Royer, 460 U.S. 491.

 
Held:  The officers’ actions did not violate the Fourth Amendment. This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While “reasonable suspicion” is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual’s presence in a “high crime area,” standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation, Adams v. Williams, 407 U.S. 143, 144, 147—148. In this case, moreover, it was also Wardlow’s unprovoked flight that aroused the officers’ suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, e.g.,United States v. Brignoni-Ponce, 422 U.S. 873, 885, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U.S. 411, 418. Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is consistent with the decision in Florida v. Royer,supra, at 498, that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of “going about one’s business.” While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, 392 U.S., at 30, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law. The propriety of that arrest is not before the Court. Pp. 3—6. 183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded.

III. Ineffective Assistance of Counsel

Mr. Fowler next argues that his counsel was constitutionally ineffective. In support of this argument he asserts that his counsel was under an actual conflict of interest in that counsel refrained from retaining needed experts out of concern that if the state refused to pay their fees it would adversely affect counsel's private practice and his reputation with the "expert" community; that counsel erroneously failed to provide the jury with Mr. Fowler's entire statement to the police; and that counsel was rendered ineffective by the trial court's failure to grant a continuance to amend his closing argument, which, when prepared, presumed the availability of a second degree felony murder instruction.

A review of the record reflects that the actual conflict of interest claim is being raised for the first time before this court. In the federal district court, Mr. Fowler claimed that his counsel was ineffective because of his ignorance of Ake v. Oklahoma, 470 U.S. 68 (1985). This lack of awareness resulted in counsel not seeking funding for more trial experts. See R. doc 38 at 42. This claim differs substantially from an allegation of actual conflict of interest. Prior to his appellate brief, Mr. Fowler did not cite a single authority that bears on conflict of interest as it relates to ineffective assistance of counsel. We will not consider issues not presented to the federal district court, absent extraordinary circumstances. See Smith v. Secretary of N.M. Dept. of Corrections, 50 F.3d 801, 814 n.22 (10th Cir. 1995) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)). Mr. Fowler alleges no such extraordinary circumstances. Rather, he indicates explicitly that the issue was raised below. This is not an accurate statement of the record before us; there is no indication that Mr. Fowler raised an alleged actual conflict of interest issue either in the federal district court or in any state court proceedings. As such, we will not address it. SeeBradford v. Ward, no. 98-6095, 1998 WL 440490 (10th Cir. July 17, 1998); seealsoUnited States v. Barnes, No. 97-5080, 1998 WL 37627 (10th Cir. Jan. 30, 1998).

Furthermore, we find Mr. Fowler's seemingly post-hoc argument insubstantial. The conflict claim was not specifically raised in any prior forum and is unsupported by specific allegations. Only now does Mr. Fowler point to specific individuals who could have testified on his behalf during the trial. Mr. Fowler may not cobble together a claim of conflict of interest based on these broad statements in the record.

To succeed on his remaining allegations of ineffective assistance of counsel, Mr. Fowler must prove that (i) counsel's performance was constitutionally deficient and (ii) counsel's deficiency prejudiced the defense, depriving him of a fair trial with a reliable result. SeeStrickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate constitutional deficiency, Mr. Fowler must show that counsel's performance was completely unreasonable, not simply ill-advised in hindsight. SeeHoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997). Similarly, to show unconstitutional prejudice, Mr. Fowler must demonstrate that but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 694. An ineffective assistance claim may be resolved on either performance or prejudice grounds alone. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995).

Mr. Fowler asserts that his counsel's failure to introduce his entire statement, denying participation in the homicides, constitutes ineffective assistance. We are not persuaded that but for this action, a reasonable probability exists that the result of the proceedings would have been different. Mr. Fowler argues that his counsel should have introduced his statement to the effect that he had never seen a gun and there was no talk of killing people; the plan was merely to commit a larceny. This statement was against the weight of overwhelming evidence that Mr. Fowler accompanied Mr. Fox to acquire both of the shotguns used in the robbery shortly thereafter. The record amply reflects that Mr. Fowler was knowingly and deeply involved in the commission of the Wynn's IGA robbery that resulted in three murders. This is all that is required for first degree murder under Oklahoma law. Okla. Stat. Ann. tit. 21 § 701.7(B) (West 1982). Thus it is unlikely that introducing Mr. Fowler's entire statement would have had any effect on the outcome of his trial either in the guilt or penalty phases. Moreover, it is not at all clear that the statement would have been admitted, given the trial court's efforts to avoid any Bruton problems. Statements by both Mr. Fox and Mr. Fowler exculpating themselves by inculpating one another were redacted to avoid any Confrontation Clause problems.

Similarly, Mr. Fowler was not prejudiced by his counsel's closing argument. Reviewing the entire closing argument, it is clear that Mr. Fowler's counsel did not concede Mr. Fowler's guilt on first degree murder. Rather, Mr. Fowler argued within the context of the evidence presented that, while his client was present, he did not participate in a way that would warrant a guilty verdict on first degree murder. Specifically, Mr. Fowler's counsel referred to the jury instruction that mere presence at the scene of a crime without participation does not make a person a principal. The statements by counsel must be viewed against the overwhelming evidence presented, and his failure to argue otherwise did not prejudice the outcome of Mr. Fowler's trial. Mr. Fowler has not indicated that any viable defense strategy was compromised. Thus, his claim of ineffective assistance on this ground fails.
 

I. Erroneous Failure to Sever

Mr. Fox asserts that the trial court erroneously joined his trial with co-defendant Mr. Fowler's, resulting in unconstitutionally unfair proceedings. As this court articulated in Cummings v. Evans, 161 F.3d 610 (10th Cir. 1998), "whether the trial court erred in denying severance is generally a question of state law that is not cognizable on federal habeas appeal. . .a criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial." Id. at 619; see also, Arbuckle v. Dorsey, No. 98-2262 1999 WL 672274, *3 (10th Cir. Aug. 30, 1999). Mr. Fox argues, citing Zafiro v. United States, 506 U.S. 534 (1993), that two specific trial rights were compromised by the trial court's denial of severance. He first claims that his constitutional right of Confrontation was violated by virtue of the limitation on his cross-examination of a witness regarding his co-defendant's redacted confession. Secondly, Mr. Fox argues that it amounts to constitutional error that he was required to share peremptory strikes with his co-defendant. Mr. Fox concludes that as a result of these errors, the jury was left with the misimpression that he actually committed the murders rather than his co-defendant, Mr. Fowler.

a. Bruton violation

Mr. Fox contends that he was deprived of his rights guaranteed by the Confrontation Clause when the trial court refused to permit Mr. Fox's attorney to elicit additional portions of Mr. Fowler's confession. The statement, admitted through the testimony of the interviewing detective, essentially established that co-defendant Fowler was present at the Wynn's IGA on the night of the murder, watching for people entering and leaving. Mr. Fox's counsel sought to establish that Mr. Fowler was in the storeroom at the time of the murders. However, the trial judge sustained Mr. Fowler's objection to this cross-examination on the grounds that it would open the door for the prosecutor to elicit the full admission of Mr. Fowler, which included the statement that he saw Mr. Fox committing the murders in the back storeroom. Mr. Fox asserts on appeal that this limitation on cross-examination constitutes a Bruton violation.

Mr. Fox misconstrues Bruton. Mr. Fox is neither explicitly nor implicitly implicated by the admitted portion of Mr. Fowler's confession - the hallmark of a Bruton violation. SeeRichardson v. Marsh, 481 U.S. 200, 201-02 (1987) ("In Bruton v. United States, 391 U.S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant."). Thus, Bruton is not implicated by the trial court's restriction on Mr. Fox's cross-examination of the detective. On the contrary, as we discuss below, the trial court's restriction of Mr. Fox's cross-examination was integral to the court's compliance with the mandates of Bruton. Moreover, to permit Mr. Fox to elicit the additional portions of the Fowler admission while omitting Mr. Fowler's statement that he witnessed Mr. Fox killing the victims would have been tantamount to permitting a deliberate act of deception, totally recasting the nature of the admission. A trial court may not sit idly on the sidelines and permit counsel to deliberately distort the evidence or mislead the jury. Admission of a redacted version of a defendant's post-arrest statement is impermissible if it unfairly distorts the original, or excludes substantially exculpatory information. See United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994); United States v. Zamudio, No. 96-2182, 1998 WL 166600 (10th Cir. 1998); United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)

Mr. Fox's objection is more properly characterized as a challenge to an evidentiary ruling by the trial court. This court held in Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998), that "[h]abeas relief is not available on this ground unless the petitioner can show his whole trial was rendered fundamentally unfair by the limitation of the cross-examination." 135 F.3d at 1342. Mr. Fox has not satisfied this standard. Mr. Fox was not prejudiced in any way by the trial court's limitation on his cross-examination of the detective. Moreover, there was ample evidence before the jury, based on testimony of the state's forensic experts, that Mr. Fowler was in the storeroom at the time of the murders. Whatever "exculpatory" benefit Mr. Fox sought to elicit from Mr. Fowler's admission was provided by this forensic evidence. Additionally, it bears noting that neither Mr. Fowler's admission nor the forensic evidence exculpated Mr. Fox, but rather merely inculpated Mr. Fowler. Despite Mr. Fox's assertions to the contrary, in view of the evidence presented at trial, these are not equivalent. Establishing that Mr. Fowler was present at the site of the murders does not render Mr. Fox's participation in the murders impossible or even unlikely. There was ample evidence to suggest that Mr. Fox and Mr. Fowler were both involved in the actual murders. In sum, Mr. Fox has failed to demonstrate any prejudice by the trial court's limit on his cross-examination of the detective who interviewed Mr. Fowler. Thus, Mr. Fox's Confrontation Clause argument fails.

b. Sharing Peremptory Strikes

Mr. Fox next argues that he was unconstitutionally prejudiced because he was required to share peremptory challenges with his co-defendant. Mr. Fox claims that because their defenses were inconsistent, he was entitled to his own nine peremptory challenges, rather than having to share nine with his co-defendant. See Okla. Stat. Ann. tit. 22 § 655 (1981).

Mr. Fox has not challenged the impartiality of the jury. Thus, he is objecting only to the number of peremptory challenges. This is a question of state law, not of constitutional dimension. SeeCummings, 161 F.3d at 619 (citing Ross v. Oklahoma, 487 U.S. 81, 88 (1988)). We may not review this claim as a result. Id.

Moreover, to the extent that Mr. Fox implies that severance was warranted because his defense was mutually antagonistic with that of his co-defendant, his argument is unpersuasive. "Mutually antagonistic defenses are not prejudicial per se." Zafiro, 506 U.S. at 538. In order to prevail on such a theory for severance, the defendant must show real prejudice, rather than merely note that each defendant is trying to exculpate himself while inculpating the other. SeeUnited States v. Dirden, 38 F.3d 1131, 1140-41 (10th Cir. 1994); Arbuckle, at *3; United States v. Briseno-Mendez, Nos. 96-2218; 96-2145, 96-2172 WL 440279, **4 (10th Cir. July 17, 1998). Such actual prejudice is shown if the defenses are truly mutually exclusive, such that "the jury could not believe the core of one defense without discounting entirely the core of the other." Dirden, 38 F.3d at 1141. Mr. Fox has not shown this type of prejudice in either the guilt phase or the sentencing phase of trial.

c. Severance at Guilt Phase

Mr. Fox argues that he was prejudiced during the guilt phase of his trial, because his defense was mutually antagonistic with that of his co-defendant. Namely, each defendant admitted to involvement in the felony, but tried to exculpate himself by inculpating the other in the actual commission of the murders. Mr. Fox overlooks the fact that during the guilt phase of the instant case, the relative culpability of the defendants was irrelevant, given that they were charged with first degree felony murder, which only requires that a murder result during the commission of a robbery with a dangerous weapon. Okla. Stat. Ann. tit. 21 § 701.7 (B). The evidence at trial amply established both Mr. Fox and Mr. Fowler's participation in the underlying robbery. Thus, Mr. Fox has not sufficiently demonstrated that he was prejudiced during the guilt phase by joinder with Mr. Fowler.

d. Severance at the Penalty Phase

Mr. Fox argues that the prejudice he suffered from the denial of severance was especially acute in the penalty phase of his trial. Beyond his above claims of Confrontation clause and peremptory challenge violations, he does not develop or support his argument beyond simply claiming that "who actually committed the murders would have made a substantial difference to the jury when they considered punishment." The failure to develop this aspect of his legal argument, supported by relevant authority, effects a forfeiture of the claim. See United States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995). Mr. Fox does not challenge the constitutionality of the Oklahoma statute requiring the same jury to sit for both guilt and penalty phases. See Okla. Stat. Ann. tit. 21 § 701.10. Nor does he discuss (with reference to the relevant facts and authority) why it was impossible for the jury to believe the core of Mr. Fowler's defense without discounting entirely the core of his own. Dirden, 28 F.3d at 1141.

The relevance of who specifically committed the murders in the penalty phase is not automatically apparent, given that Enmund v. Florida, 458 U.S. 782, 797 (1982), and Tison v. Arizona, 481 U.S. 137, 157 (1987), require only that the petitioner "himself kill[ed the victim], attempt[ed] to kill [the victim], or intend[ed] that a killing [of the victim] take place or that lethal force will be employed." Enmund, 458 U.S. at 797. (Emphasis added). Moreover, "major participation in the felony committed, combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement." Tison, 481 U.S. at 158. Ample evidence, including Mr. Fox's own confession, demonstrated that Mr. Fox intended that lethal force might be employed. Mr. Fox acquired firearms in preparation for the robbery of the Wynn's IGA, immediately prior to the murders, and admitted the killing to his roommate.

[II IAC]

b. Counsel's Failure to Inculpate Co-Defendant

Mr. Fox next argues that counsel was ineffective in that he failed to inculpate the co-defendant, on the theory that had he done so, it would have proven that Mr. Fox "did not kill, attempt to kill or intend to kill any of the victims" Aplt. Br. at 16. Citing Enmund, Mr. Fox implies that had his counsel demonstrated that it was Mr. Fowler who committed the actual murders, Mr. Fox would have been exonerated from the first degree felony murder charge. In this vein, Mr. Fox argues counsel was ineffective for not refuting the state's blood spatter expert, who testified that two people were involved in the murders; for not making an opening statement; for failing to rebut Mr. Fowler's comments inculpating Mr. Fox during the guilt phase closing argument; and for failing to inculpate Mr. Fowler during the penalty phase closing argument.

An ineffective assistance claim may be resolved on either performance or prejudice grounds alone. SeeHatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995). This is true in the instant case regarding Mr. Fox's arguments about counsel's failure to inculpate Mr. Fowler in the guilt phase of trial. Because Mr. Fox was charged with first degree felony murder, he would not have been exculpated by inculpating defendant Mr. Fowler in the murders themselves, since Mr. Fox concedes that he participated in the underlying robbery. Okla Stat. Ann. tit. 21 § 701.7(B). Moreover, the state's blood spatter expert was cross-examined by Mr. Fowler's counsel, who elicited the expert's concession that it was possible, albeit improbable, that one person committed the murders. Thus, Mr. Fox has not demonstrated any prejudice resulting from his counsel's failure to orally contest the expert's conclusion that two people committed the murders.

Additionally, Mr. Fox has not shown that his counsel was constitutionally deficient. That is, he has not overcome the presumption of trial strategy regarding his counsel's waiver of opening statement in the guilt phase, the failure to rebut Mr. Fowler's closing argument inculpating Mr. Fox in the guilt phase, and the failure to inculpate Mr. Fowler in the penalty phase. For counsel's actions to rise to the level of constitutional ineffectiveness, his strategic decisions must have been "'completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)).

While opening and closing statements are not to be lightly waived in a capital case, it is well-settled that the decision to waive an opening or closing statement is a commonly adopted strategy, and without more, does not constitute ineffective assistance of counsel. See Nguyen, 131 F.3d at 1350; seealsoUnited States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993); United States v. Miller, 907 F.2d 994, 1000 (10th Cir. 1990). The record indicates Mr. Fox's counsel chose to waive closing argument during the guilt phase as a strategic matter as well. Mr. Fox's counsel initially believed that waiving closing argument in the guilt phase would preclude the State from presenting rebuttal argument aimed at Mr. Fox. When the judge made it clear that this was not an accurate understanding of the trial procedures, Mr. Fox's counsel stated that he nevertheless thought that if he made a closing argument rebutting Mr. Fowler's arguments inculpating Mr. Fox, he would waive his objections to those arguments on Eighth Amendment grounds. Finally, Mr. Fox's counsel's failure to argue that Mr. Fox was innocent during the penalty phase was a reasonable strategy, especially in light of the overwhelming evidence militating in favor of Mr. Fox's guilt. Instead, Mr. Fox's counsel understandably shifted the focus from Mr. Fox's innocence (or Mr. Fowler's guilt) to the humanity of his client. It was a reasonable strategy to do so, both to maintain credibility with the jury, and to try to emphasize the mitigating factors presented. Thus, following Hatch, we find that counsel's decisions amounted to a reasonable trial strategy, and as such, do not rise to the level of unconstitutional deficiency.
 

 
D. JURY INSTRUCTIONS REGARDING EFFECT OF A "NO" VOTE

At the punishment phase, the jurors were instructed that if all twelve jurors find that the State has proven a special issue beyond a reasonable doubt, the presiding juror will record the jury's answer of "yes." The charge instructed that if ten or more jurors vote "no," then the answer of the jury shall be "no" to that special issue.

Miller argues that because the jurors were not instructed that the consequences of a failure to reach either of the above two options was a life sentence,⁽⁸⁾ the risk that one or more jurors would change a vote to satisfy the majority is too great to pass muster under the Eighth Amendment. More specifically, he contends that the charge mislead the jury regarding the effect of a "no" vote by a single juror as to either special issue.⁽⁹⁾ He asserts that the jurors were instructed that they had only two options: either the jurors would unanimously agree to answer all of the special issues affirmatively, which would result in the imposition of a death sentence; or at least ten jurors would agree to answer one or more of the special issues negatively, which would result in the imposition of a life sentence.

Contrary to Miller's assertion, the jury at his trial was instructed what to do if they did not reach agreement as set forth in the charge. The jury instructions provided that if there was any special issue on which the vote of the jurors was not unanimously 'yes' or not at least ten in favor of an answer of 'no,' there should be no answer for that special issue and the presiding juror should not sign his or her name to any answer form for that special issue.

Nevertheless, relying on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988), Miller asserts a reasonable juror could have believed that their individual vote was not meaningful unless some threshold number of jurors were in agreement on that particular special issue. This claim will afford Miller no relief.

In Mills, the Supreme Court held that the Eighth Amendment was violated because the jury instructions may have precluded the jury from considering mitigating evidence unless all twelve jurors agreed that a particular circumstance was supported by the evidence. 486 U.S. at 384, 108 S.Ct. at 1870. Subsequent to Mills, the Supreme Court has explained that "Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death." McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227, 1233 (1990).

This Court has explained that Mills is not applicable to the capital sentencing scheme in Texas. We have concluded that "[u]nder the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance." Jacobs v. Scott, 31 F.3d 1319, 1329 (5th Cir. 1994). "Mills does not require a certain number of jurors to agree to impose the death penalty." Id. Miller's jury was instructed in conformity with Texas law. In light of our precedent, Miller has not made a substantial showing of the denial of a constitutional right. Moreover, our precedent precludes him from demonstrating that the state court's resolution of this claim involved an unreasonable application of clearly established federal law as determined by the Supreme Court.

E. PENRY CLAIM

Miller argues that the jury charge did not allow the jury to express a proper moral reaction to the mitigating evidence. He contends that the evidence that he was suffering from a severe mental illness, a dissociative episode, during the offense, should have been considered by the jury during its deliberations on punishment. He argues that the charge instructed that the jury could not consider such evidence as sufficient to answer negatively on either punishment issue. Miller argues that the jury instructions were unconstitutional under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989).

Miller requested, but was denied, the following instruction on punishment, "[a]ny evidence that is concluded mitigating against the imposition of the death penalty may be sufficient to require a no answer to the issues." The jury was instructed, in part, as follows:

You are instructed that if you return an affirmative finding on each of the special issues submitted to you, the Court shall sentence the defendant to death. You are further instructed that if you return a negative finding on any special issue submitted to you the Court shall sentence the Defendant to the Texas Department of Corrections for life. You are therefore instructed that your answers to the special issues which determines the punishment to be assessed the Defendant by the Court should be reflective of your finding as to the personal culpability of the Defendant, Garry Dean Miller, in this case.
 

You are instructed that when you deliberate on the questions posed to you in the special issues you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial whether presented by the State or by the Defendant. A mitigating circumstance may include but is not limited to any aspect of the Defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case you must decide how much weight they deserve, if any, and thereafter give effect and consideration to them in assessing the Defendant's personal culpability at the time you answer the special issue. If you determine when giving effect to the mitigating evidence, if any, that a life sentence as reflected by a negative finding to the issue under consideration rather than a death sentence is an appropriate response to the personal culpability of the Defendant a negative finding should be given to the special issue under consideration.
 

(emphasis added).

The jury instructions at the punishment phase of a capital case must be permitted to give effect to any constitutionally relevant mitigating evidence. See Green v. Johnson, 116 F.3d 1115, 1126 (5th Cir. 1997) (citing Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875 (1982)). In Penry, the Supreme Court reversed a death sentence on the ground that, although the evidence regarding the defendant's mental retardation and childhood abuse was presented to the jury at the penalty phase of the trial, the special issues prescribed by Texas statute prevented the jury from giving mitigating effect to that evidence. Penry, 492 U.S. at 328, 109 S.Ct. at 2952.

On direct appeal, the Texas Court of Criminal Appeals acknowledged that the mitigating evidence, that Miller was suffering from a "'very severe mental disorder'" at the time of the offense which "'interfered with his knowing right from wrong,'" "may or may not have been considered mitigating evidence of the type contemplated by the Supreme Court in Penry." The Court concluded that the trial court's instruction on mitigating circumstances provided the jury with an adequate vehicle to express and to give effect to its "reasoned moral response" to Miller's mitigating evidence, if any existed.

In Penry, "[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence." 492 U.S. at 320, 109 S.Ct. at 2947. The Supreme Court rejected "the State's contrary argument that the jury was able to consider and give effect to all of Penry's mitigating evidence in answering the special issues without any jury instructions on mitigating evidence." Id. at 322, 109 S.Ct. at 2948.

Miller's jury, unlike Penry's, was instructed that it should consider mitigating evidence when deliberating on the special issues and that a mitigating circumstance may include, but is not limited to, any aspect of Miller's character and record or circumstances of the crime which the jury believed could make a death sentence inappropriate. The jury was instructed that if it identified any mitigating circumstances, it should weigh them and give effect and consideration to them in assessing Miller's personal culpability. The jury was instructed that if it determined when giving effect to the mitigating evidence, if any, that a life sentence rather than a death sentence was an appropriate response to Miller's personal culpability, a negative finding should be given to the special issue under consideration. Miller has not demonstrated that his requested instruction was required under Penry or that the challenged instructions were barred by Penry. He has not shown that the jury was prevented from considering the evidence of his dissociative condition at the time of the offense. Therefore, we conclude that he has not made a substantial showing of the denial of a constitutional right.

USA v. McGee (8th Cir) Drug quantity calculations were affirmed on direct appeal and may not be challenged in a Section 2255; refusal to grant a downward departure was unreviewable.
 

Evans v. USA(8th Cir) Claim of ineffective assistance of counsel concerning admission of photos rejected as Evans could not establish prejudice from counsel's actions in light of the evidence of his guilt.

Gates v. McMahon (5th Cir) "The defendants claim that the district court erred when it ruled that they were not entitled to qualified immunity during the motion to dismiss  . . . .Although, the defendants point out that there is no constitutional violation when the most that can be said is that the police stood by and did nothing, see McKee 877 F.2d at 412, nonetheless, Shipp does more that claim police inaction. Shipp claims that the WPSO intentionally adopted policies and customs that afforded less protection to women victims of domestic violence than other victims. Thus, we find that Shipp articulates a clearly established right under the minimum requirements of Rule 12(b)(6)."

DeHart v. Horn (3rd Cir) Further factual determinations by the district court needed on whether, under the equal protection clause, reason exists to deny Buddhists special dietary privileges where the government makes special provision for the kosher dietary needs of observant jews.
 

        V. THE LOCKETT DOCTRINE

Anyone involved in a capital litigation must have a firm grasp of the Lockett doctrine. In Lockett v. Ohio, 438 U.S. 586 (1978), the Court established that the bedrock Eighth Amendment principle emanates from the "the fundamental respect for humanity underlying the Eighth Amendment. [This regard mandates the] ... consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id. at 304; see also Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976).15 Only through a process which requires the sentencer to "consider, in fixing the ultimate punishment of death[,] the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind," Woodson v. North Carolina, 428 U.S. at 304, can capital defendants be treated "as uniquely individual human beings." Id. The Lockett principle "is the product of a considerable history reflecting[] the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual. California v. Brown, 479 U.S. at 562 (Blackman, J. dissenting). Or, in Justice O'Connor's terms: "Under lying Lockett and Eddings is the principle that punishment should be directly related to the personal capability of the criminal defendant." Penry v. Lynaugh, 492 U.S. 302, 319 (1989).

Because of the need for individualized treatment, the states have been required to permit the sentencer to consider and, in appropriate cases, base a decision to impose a life sentence upon any relevant mitigating factor, not simply the mitigating factors specified in a statute. Hitchcock v. Dugger, 481 U.S. 393 (1987). As explained in Eddings v. Oklahoma, 455 U.S. at 112.

Lockett followed from the earlier decisions of the Court and from the Court's insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.… By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.

It is important to note that the definition of "mitigating" is extremely broad. In Lockett, the Court defined a mitigating circumstance as "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." 438 U.S. at 604. While this explanation seems to allow the defendant the freedom to define what is "mitigating," the Court has since given a more objective cast to this explanation. In Skipper v. South Carolina, 476 U.S. 1 (1986), the Court held that evidence of the defendant's good behavior during his pretrial incarceration was "'mitigating' in the sense that [it] might serve 'as a basis for a sentence less than death.'" 476 U.S. at 7 (quoting Lockett v. Ohio, 438 U.S. at 604).16 Thus, any evidence that "might" serve to reduce the urge to punish harshly must be deemed mitigating.

A corollary Lockett principle is that sentences must be permitted to give "independent mitigating weight," Lockett v. Ohio, 438 U.S. at 605, to all evidence proffered in mitigation. Thus there cannot be any distinction between statutory and nonstatutory mitigating circumstances. See Hitchcock v. Dugger, 481 U.S. 393 (1987).17 Additionally, the jury instructions must be sufficient to provide the jury "with a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision." Penry v. Lynaugh, 492 U.S. 302, 318 (1989). Furthermore, an individual juror must be free to consider a mitigating factor, regardless of whether other members of the jury agree as to its existence. Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990) ("each juror [must] be permitted to consider and give effect to mitigating evidence"). In other words, it is not enough "simply to allow the defendant to present mitigating evidence to the sentencer," rather there must not be any impediment -- through evidentiary rules,18 jury instructions19 or prosecutorial argument20 -- to the sentencer's full consideration and ability to give effect to mitigating evidence. Penry, 492 U.S. at 327-28.21

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ISSN: 1523-6684   Volume III, issue 2