The Supreme Court leads the way this week in Ramdass v. Angelone.  The case has left court watchers puzzled by two different aspects of the opinion. The first is a separate Justice O'Connor concurrence (creating a  mere plurality) which has led some to wonder as to why as there appears (save for dicta in the majority opinion about the result would have been the same on direct appeal review) little difference between the two positions.   The second peculiarity, as noted below, is the rather favorable language in the interpretation of the AEDPA the plurality of conservative justices  uses.

With the question of whether George Bush has or has not killed an innocent man, two separate southern federal courts of appeals turn a deaf ear to claims of innocence.  The first court, the Fourth Circuit in Barnabei v. Angelone, finds no merit in the lack of DNA testing in this case where DNA testing might potentially exonerate the condemned. The Eleventh Circuit in In re Demps, turned away an actual innocence claim on a successive petition; DNA was not offered.  In a third case, Ex Parte McGinn, (linked but not covered) the Texas Court of Criminal appeal holds that petitioner brought a claim of potential exoneration by DNA as merely a delay tactic, however Governor Bush, under tremendous fire in the national press for his death penalty practices,  granted a temporary stay so as to permit DNA testing.

In the final capital case, Comer v. Stewart, the Ninth Circuit examines competence to waive appeals and what is sufficient for a petitioner to drop a habeas corpus petition once filed. The panel remands for a determination as to whether Comer is actually dropping his petition out of freewill or pressure from the state.

Finally I would be remiss if I didn't mention  Professor James S. Liebman's  study "A Broken System: Error Rates in Capital Cases" which can be found on The Justice Project's web sitem,  highlights the reversible error rates in capital cases, concluding that 2 in every 3 death sentences had error as recognized by an appellate court.  The Chicago Tribune this week also published  the statistics of the 131 cases where a death row inmate has been executed in Texas under Governor George W. Bush finding a shockingly high degree of objectively  bad attorneys by looking at bar records and the like. (Chicago Tribune, 6/11/00 Part I and Part II).

Supreme Court term review from the NAACP LDF wraps up the issue.

    Petitioner bases his request for habeas corpus relief on Simmons, supra. The premise of the Simmons case was that, under South Carolina law, the capital defendant would be ineligible for parole if the jury were to vote for a life sentence. Future dangerousness being at issue, the plurality opinion concluded that due process entitled the defendant to inform the jury of parole ineligibility, either by a jury instruction or in arguments by counsel. In our later decision in O’Dell v. Netherland, 521 U.S. 151, 166 (1997), we held that Simmons created a new rule for purposes of Teague v. Lane, 489 U.S. 288 (1989). O’Dell reaffirmed that the States have some discretion in determining the extent to which a sentencing jury should be advised of probable future custody and parole status in a future dangerousness case, subject to the rule of Simmons. We have not extended Simmons to cases where parole ineligibility has not been established as a matter of state law at the time of the jury’s future dangerousness deliberations in a capital case.

    Whether Ramdass may obtain relief under Simmons is governed by the habeas corpus statute, 28 U.S.C. § 2254(d)(1) (1994 ed., Supp. III), which forbids relief unless the state-court adjudication of a federal claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As explained in Justice O’Connor’s opinion for the Court in Williams v. Taylor, 529 U.S. ___, ___ (2000) (slip op., at 15), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts our prior holdings or if it reaches a different result from one of our cases despite confronting indistinguishable facts. The statute also authorizes federal habeas corpus relief if, under clearly established federal law, a state court has been unreasonable in applying the governing legal principle to the facts of the case. A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled. The Virginia Supreme Court’s ruling in the case before us was neither contrary to Simmons nor an unreasonable application of its rationale.

    Petitioner contends his case is indistinguishable from Simmons, making the Virginia Supreme Court’s refusal to grant relief contrary to that case. In his view the Pizza Hut conviction and the Domino’s guilty verdict classified him, like the Simmons petitioner, as ineligible for parole when the jury deliberated his sentence. He makes this argument even though the Virginia Supreme Court declared that he was not parole ineligible at the time of the sentencing trial because no judgment of conviction had been entered for the Domino’s crime.

    Simmons created a workable rule. The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law. 512 U.S., at 156 (plurality opinion) (limiting holding to situations where “state law prohibits the defendant’s release on parole”); id., at 165, n. 5 (relying on fact that Simmons was “ineligible for parole under state law”); id., at 176 (O’Connor, J., concurring) (citing state statutes to demonstrate that for Simmons “the only available alternative sentence to death … was life imprisonment without [the] possibility of parole”). The instruction was required in Simmons because it was agreed that “an instruction informing the jury that petitioner is ineligible for parole is legally accurate.” Id., at 166. 

    In this case, a Simmons instruction would not have been accurate under the law; for the authoritative determination of the Virginia Supreme Court is that petitioner was not ineligible for parole when the jury considered his sentence. In Simmons the defendant had “conclusively established” his parole ineligibility at the time of sentencing. Id., at 158. Ramdass had not. In Simmons, a sentence had been imposed for the defendant’s prior conviction and he pleaded guilty. Ramdass’ Domino’s case was tried to a jury and no sentence had been imposed. While a South Carolina defendant might challenge a guilty plea, the grounds for doing so are limited, see Rivers v. Strickland, 264 S. C. 121, 124, 213 S. E. 2d 97, 98, (1975) (“The general rule is that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea”); see also Whetsell v. South Carolina, 276 S. C. 295, 296, 277 S. E. 2d 891, 892, (1981), and, in all events, such a motion cannot seek to set aside a jury verdict or be considered a post-trial motion, for there was no trial or jury verdict in the case. 512 U.S., at 156. Simmons further does not indicate that South Carolina law considered a guilty plea and sentence insufficient to render the defendant parole ineligible upon conviction of another crime. Material differences exist between this case and Simmons, and the Virginia Supreme Court’s decision is not contrary to the rule Simmons announced.

    Ramdass makes two arguments to equate his own case with Simmons. Neither contention refutes the critical point that he was not ineligible for parole as a matter of state law at the time of his sentencing trial. First he contends that the Simmons petitioner was not parole ineligible at the time of his sentencing trial. According to Ramdass, a South Carolina prisoner is not parole ineligible until the State Board of Probation makes a formal determination of parole ineligibility and the state board had not done so when the capital sentencing jury fixed Simmons’ penalty. This argument is without merit. Virginia does not argue that Ramdass was parole eligible because a parole board had not acted. It argues Ramdass was still parole eligible at the time of the sentencing trial by reason of his then criminal record as it stood under state law. We further note that Ramdass bases his argument on briefs and the record filed in Simmons. A failure by a state court to glean information from the record of a controlling decision here and to refine further holdings accordingly does not necessarily render the state-court ruling “contrary to, or … an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” §2254(d)(1). On review of state decisions in habeas corpus, state courts are responsible for a faithful application of the principles set out in the controlling opinion of the Court.

    Second, Ramdass argues Simmons allowed a prisoner to obtain a parole-ineligibility instruction even though “hypothetical future events” (such as escape, pardon, or a change in the law) might mean the prisoner would, at some point, be released from prison. This argument is likewise of no assistance to Ramdass. The Simmons petitioner was, as a matter of state law, ineligible for parole at the time of the sentencing trial. The State was left to argue that future events might change this status or otherwise permit Simmons to reenter society. Id., at 166. Ramdass’ situation is just the opposite. He was eligible for parole at the time of his sentencing trial and is forced to argue that a hypothetical future event (the entry of judgment on the Domino’s convictions) would render him parole ineligible under state law, despite his current parole-eligible status. This case is not parallel to Simmons on the critical point. The differences between the cases foreclose the conclusion that the Virginia Supreme Court’s decision denying Ramdass relief was contrary to Simmons. 

    Ramdass contends the Virginia Supreme Court nevertheless was bound to extend Simmons to cover his circumstances. He urges us to ignore the legal rules dictating his parole eligibility under state law in favor of what he calls a functional approach, under which, it seems, a court evaluates whether it looks like the defendant will turn out to be parole ineligible. We do not agree that the extension of Simmons is either necessary or workable; and we are confident in saying that the Virginia Supreme Court was not unreasonable in refusing the requested extension.

    Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison. Petitioner’s proposed rule would require courts to evaluate the probability of future events in cases where a three-strikes law is the issue. Among other matters, a court will have to consider whether a trial court in an unrelated proceeding will grant postverdict relief, whether a conviction will be reversed on appeal, or whether the defendant will be prosecuted for fully investigated yet uncharged crimes. If the inquiry is to include whether a defendant will, at some point, be released from prison, even the age or health of a prisoner facing a long period of incarceration would seem relevant. The possibilities are many, the certainties few. If the Simmons rule is extended beyond when a defendant is, as a matter of state law, parole ineligible at the time of his trial, the State might well conclude that the jury would be distracted from the other vital issues in the case. The States are entitled to some latitude in this field, for the admissibility of evidence at capital sentencing was, and remains, an issue left to the States, subject of course to federal requirements, especially, as relevant here, those related to the admission of mitigating evidence. Id., at 168; California v. Ramos, 463 U.S. 992 (1983).

    By eliminating Simmons’ well-understood rule, petitioner’s approach would give rise to litigation on a peripheral point. Parole eligibility may be unrelated to the circumstances of the crime the jury is considering or the character of the defendant, except in an indirect way. Evidence of potential parole ineligibility is of uncertain materiality, as it can be overcome if a jury concludes that even if the defendant might not be paroled, he may escape to murder again, see Garner v. Jones, 529 U.S. ___ (2000); he may be pardoned; he may benefit from a change in parole laws; some other change in the law might operate to invalidate a conviction once thought beyond review, see Bousley v. United States, 523 U.S. 614 (1998); or he may be no less a risk to society in prison, see United States v. Battle, 173 F.3d 1343 (CA11 1999), cert. denied, 529 U.S. ___ (2000). The Virginia Supreme Court had good reason not to extend Simmons beyond the circumstances of that case, which included conclusive proof of parole ineligibility under state law at the time of sentencing.

    A jury evaluating future dangerousness under Virginia law considers all of the defendant’s recent criminal history, without being confined to convictions. As we have pointed out, the Domino’s Pizza conviction was not even a part of the prosecution’s main case in the sentencing proceedings. Parole ineligibility, on the other hand, does relate to formal criminal proceedings. The State is entitled to some deference, in the context of its own parole laws, in determining the best reference point for making the ineligibility determination. Given the damaging testimony of the criminal acts in the spree Ramdass embarked upon in the weeks before the Kayani murder, it is difficult to say just what weight a jury would or should have given to the possibility of parole; and it was not error for the State to insist upon an accurate assessment of the parole rules by using a trial court judgment as the measuring point. 

    As we have explained, the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial. Ramdass did not because of the judicial determination Virginia uses to establish a conviction’s finality under its parole law. We note that Virginia’s rule using judgment in the Domino’s case to determine parole ineligibility is not arbitrary by virtue of Virginia’s also allowing evidence of the defendant’s prior criminal history. To demonstrate Ramdass’ evil character and his propensity to commit violent acts in the future, the prosecutor used Ramdass’ prior criminal conduct, supported in some cases (although not in the Domino’s case) by evidence in the form of the resulting jury verdicts. Virginia law did not require a guilty verdict, a criminal judgment, or the exhaustion of an appeal before prior criminal conduct could be introduced at trial. Virginia law instead permitted unadjudicated prior bad acts to be introduced as evidence at trial. See Watkins v. Commonwealth, 229 Va. 469, 487, 331 S. E. 2d 422, 435 (1985). For example, the prosecutor was permitted to use the shooting of Selassie in aggravation, even though no verdict had been rendered in that case. The prosecutor likewise asked Ramdass about the July murder in Alexandria. App. 64. (Despite Ramdass’ sworn denial, he pleaded guilty to the crime after being sentenced to death in this case.) The guilty verdict of the jury in the Domino’s case, therefore, was not a necessary prerequisite to the admissibility of the conduct underlying the Domino’s crime. Ramdass, furthermore, could not object to the Commonwealth’s use of the Domino’s crime at sentencing, for it was he who introduced the evidence. The Commonwealth did not mention the crime in its opening statement and did not present evidence of the crime in its case in chief. Ramdass used the Domino’s crime to argue he would never be out of jail; and he overused the crime even for that purpose. Counsel advised the jury the Domino’s crime would result in “at least another life sentence,” when in fact the sentence imposed was for 18 years. Id., at 50. 

    The various public opinion polls to which we are pointed cast no doubt upon the rule adopted by the State. We are referred, for example, to a poll whose result is reported in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev. 211 (1987). The poll is said to permit the conclusion that 67% of potential jurors would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible. 

    The poll is not a proper consideration in this Court. Mere citation of a law review to a court does not suffice to introduce into evidence the truth of the hearsay or the so-called scientific conclusions contained within it. Had the creators of the poll taken the stand in support of the poll’s application to Ramdass’ case, the poll likely would have been demonstrated to be inadmissible. The poll’s reporters concede the poll was limited in scope, surveying 40 individuals eligible for jury service. Id., at 221. The poll was limited to jurors in one Georgia county, jurors who would never serve on a Fairfax County, Virginia, jury. The poll was supervised by the Southern Prisoners’ Defense Committee, a group having an interest in obtaining life sentences for the inmates it represents. The poll was conducted in the context of ongoing litigation of a particular defendant’s death sentence. The article makes no reference to any independent source confirming the propriety of the sampling methodology. The poll asked but four questions. It failed to ask those who were surveyed why they held the views that they did or to ascertain their reaction to evidence supplied by the prosecution designed to counter the parole information. No data indicates the questions were framed using methodology employed by reliable pollsters. No indication exists regarding the amount of time participants were given to answer. The reporters of the poll contend other similar, limited studies support the results, yet those studies were conducted over the telephone “by defense attorneys in connection with motions for new trials.” These, and other, deficiencies have been relied upon by courts with factfinding powers to exclude or minimize survey evidence. E.g., Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 264 (CA5 1980) (inadequate survey universe); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1116 (SDNY 1981) (unreliable sampling technique); General Motors Corp. v. Cadillac Marine & Boat Co., 226 F. Supp. 716, 737 (WD Mich. 1964 (only 150 people surveyed); Kingsford Products Co. v. Kingsfords, Inc., 715 F. Supp. 1013, 1016 (Kan. 1989) (sample drawn from wrong area); Conagra, Inc. v. Geo. A. Hormel & Co., 784 F. Supp. 700, 726 (Neb. 1992) (survey failed to ask the reasons why the participant provided the answer he selected); Sterling Drug, Inc. v. Bayer AG, 792 F. Supp. 1357, 1373 (SDNY 1992) (questions not properly drafted); American Home Products Corp. v. Proctor & Gamble Co., 871 F. Supp. 739, 761 (NJ 1994) (respondents given extended time to answer); Gucci v. Gucci Shops, Inc., 688 F. Supp. 916, 926 (SDNY 1988) (surveys should be conducted by recognized independent experts); Schering Corp. v. Schering Aktiengesellschaft, 667 F. Supp 175, 189 (NJ 1987) (attorney contact and interference invalidates poll); see generally Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp 1189 (EDNY 1983) (listing factors to consider in determining whether a survey is reliable). The poll reported in the Columbia Human Rights Law Review should not be considered by this Court. See Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). It is the Virginia Supreme Court’s decision rejecting Ramdass’ claims that is under review in this habeas proceeding. It was not required to consult public opinion polls.

    Ramdass’ claim is based on the contention that it is inevitable that a judgment of conviction would be entered for his Domino’s crime. He calls the entry of judgment following a jury verdict a “ministerial act whose performance was foreseeable, imminent, and inexorable.” Brief for Petitioner 21, 36. Petitioner cites no authority for the proposition that a judicial officer’s determination that final judgment should be entered (as opposed to the clerk’s noting of the final judgment in the record) is a ministerial act. We are not surprised. We doubt most lawyers would consider a criminal case concluded in the trial court before judgment is entered, for it is judgment which signals that the case has become final and is about to end or reach another stage of proceedings. See Va. Sup. Ct. Rule 1:1, 5A:6 (1999) (requiring notice of appeal to be filed “within 30 days after entry of final judgment”). 

    Post-trial motions are an essential part of Virginia criminal law practice, as discussed in leading treatises such as J. Costello, Virginia Criminal Law and Procedure 829 (2d ed. 1995), and R. Bacigal, Virginia Criminal Procedure 337 (2d ed. 1989). Under Virginia Supreme Court Rule 3A:15(b) (1999), a verdict of guilty may be set aside “for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.” A few examples from the reports of Virginia decisions demonstrate it to be well-established procedure in Virginia for trial courts to consider and grant motions to set aside jury verdicts. E.g., Floyd v. Commonwealth, 219 Va. 575, 576—577, 249 S. E. 2d 171, 172 (1978); Payne v. Commonwealth, 220 Va. 601, 602—603, 260 S. E. 2d 247, 248 (1979); Johnson v. Commonwealth, 20 Va. App. 547, 553, 458 S. E. 2d 599, 601 (1995); Walker v. Commonwealth, 4 Va. App. 286, 291, 356 S. E. 2d 853, 856 (1987); Gorham v. Commonwealth, 15 Va. App. 673, 674, 426 S. E. 2d 493, 494 (1993); Carter v. Commonwealth, 10 Va. App. 507, 509, 393 S. E. 2d 639, 640 (1990); Cullen v. Commonwealth, 13 Va. App. 182, 184, 409 S. E. 2d 487, 488 (1991).

    The motion to set aside may be filed and resolved before judgment is entered, e.g., Walker, supra, at 291, 356 S. E. 2d, at 856, and trial courts may conduct hearings or allow evidence to be introduced on these motions. Postverdict motions may be granted despite the denial of a motion to strike the evidence made during trial, e.g., Gorham, supra, at 674, 426 S. E. 2d, at 494, or after denial of a pretrial motion to dismiss, Cullen, supra, at 184, 409 S. E. 2d, at 488. Federal judges familiar with Virginia practice have held that postverdict motions give a defendant a full and fair opportunity to raise claims of trial error, Di Paola v. Riddle, 581 F.2d 1111, 1113 (CA4 1978). In contexts beyond the three-strikes statute, Virginia courts have held that the possibility of postverdict relief renders a jury verdict uncertain and unreliable until judgment is entered. E.g., Dowel v. Commonwealth, 12 Va. App. 1145, 408 S. E. 2d 263, 265 (1991); see also Smith v. Commonwealth, 134 Va. 589, 113 S. E. 707 (1922); Blair v. Commonwealth, 66 Va. 850, 858, 861 (1874) (availability of postverdict motions mean it is at the defendant’s option whether to “let judgment be entered in regular order”). In one recent case, the Virginia Court of Appeals relied on Rule 3A:15 to hold, contrary to petitioner’s contention here, that it is an “incorrect statement of the law” to say that the trial court has no concern with the proceedings after the jury’s verdict. Davis v. Commonwealth, 2960—98—2, 2000 WL 135148, *4, n. 1 (Va. App., Feb. 8, 2000).

    The time for Ramdass to file a motion to set aside the Domino’s verdict had not expired when the jury was deliberating on the sentence for Kayani’s murder; and he concedes he could have filed post-verdict motions. The Domino’s case was pending in a different county from the Kayani murder trial and the record contains no indication that Ramdass’ counsel advised the judge in the Kayani case that he would not pursue postverdict relief in the Domino’s case. The Virginia Supreme Court was reasonable to reject a parole ineligibility instruction for a defendant who would become ineligible only in the event a trial judge in a different county entered final judgment in an unrelated criminal case. 

    Ramdass complains that the Virginia Supreme Court’s selection of the entry of judgment rather than the jury verdict is arbitrary. He points out that a trial court may set the judgment aside within 21 days after its entry. Va. Sup. Ct. Rule 1:1 (1999). Appeal is also permitted. We agree with Ramdass that the availability of postjudgment relief in the trial court or on appeal renders uncertain the finality and reliability of even a judgment in the trial court. Our own jurisprudence under Teague v. Lane, for example, does not consider a Virginia-state-court conviction final until the direct review process is completed. O’Dell v. Netherland, 521 U.S., at 157. States may take different approaches and we see no support for a rule that would require a State to declare a conviction final for purposes of a three-strikes statute once a verdict has been rendered. Verdicts may be overturned by the state trial court, by a state appellate court, by the state supreme court, by a state court on collateral attack, by a federal court in habeas corpus, or by this Court on review of any of these proceedings. Virginia’s approach, which would permit a Simmons instruction despite the availability of postjudgment relief that might, the day after the jury is instructed that the defendant is parole ineligible, undo one of the strikes supporting the instruction, provided Ramdass sufficient protection. A judgment, not a verdict, is the usual measure for finality in the trial court. 

    Our conclusion is confirmed by a review of petitioner’s conduct in this litigation. The current claim that it was certain at the time of trial that Ramdass would never be released on parole in the event the jury sentenced him to life is belied by the testimony his counsel elicited from him at sentencing. Ramdass’ counsel asked him, “Are you going to spend the rest of your life in prison?” Despite the claim advanced now that parole would be impossible, the answer counsel elicited from Ramdass at trial was, “I don’t know.” We think Ramdass’ answer at trial is an accurate assessment of the uncertainties that surrounded his parole and custody status at the time of trial. In like manner, before the Virginia Supreme Court’s decision now challenged as unreasonable, petitioner had not argued that his parole eligibility should have been determined based on the date of the Domino’s verdict (January 7, 1993) rather than the date the judgment was entered (February 18, 1993). He did not mention the three-strikes law at trial, although the Domino’s verdict had already been returned. Petitioner’s brief to the Virginia Supreme Court on remand from this Court conceded that the appropriate date to consider for the Domino’s crime was the date of judgment. His brief states Ramdass “was convicted … on 18 February 1993 of armed robbery” and that “[o]f course, the … 18 February convictio[n] occurred after the jury findings in this case.” App. 123—124. Thus the Virginia Supreme Court treated the Domino’s conviction in the manner urged by petitioner. Petitioner’s change of heart on the controlling date appears based on a belated realization that the 1988 robbery conviction did not qualify as a strike, meaning that he needed the Domino’s conviction to count. To accomplish the task, petitioner began arguing that the date of the jury verdict controlled. His original position, however, is the one in accord with Virginia law.

    State trial judges and appellate courts remain free, of course, to experiment by adopting rules that go beyond the minimum requirements of the Constitution. In this regard, we note that the jury was not informed that Ramdass, at the time of trial, was eligible for parole in 25 years, that the trial judge had the power to override a recommended death sentence, or that Ramdass’ prior convictions were subject to being set aside by the trial court or on appeal. Each statement would have been accurate as a matter of law, but each statement might also have made it more probable that the jury would have recommended a death sentence. We further note Virginia has expanded Simmons by allowing a defendant to obtain a Simmons instruction even where the defendant’s future dangerousness is not at issue. Yarbrough v. Commonwealth, 258 Va. 347, 519 S. E. 2d 602 (1999). Likewise, Virginia has, after Ramdass’ conviction, eliminated parole for capital defendants sentenced to life in prison. The combination of Yarbrough and the elimination of parole means that all capital defendants in Virginia now receive a Simmons instruction if they so desire. In circumstances like those presented here, even if some instruction had been given on the subject addressed by Simmons, the extent to which the trial court should have addressed the contingencies that could affect finality of the other convictions is not altogether clear. A full elaboration of the various ways to set a conviction aside or grant a new trial might not have been favorable to the petitioner. In all events the Constitution does not require the instruction that Ramdass now requests. The sentencing proceeding was not invalid by reason of its omission.

In his principal argument to this court, Barnabei maintains that he was denied his Sixth Amendment right to effective assistance of counsel by his trial counsel's failure to present medical evidence that assertedly would have rendered the Commonwealth's evidence of rape significantly less compelling. Specifically, Barnabei argues that his trial counsel should have presented evidence that a vaginal bruise, like that apparently sustained by Ms. Wisnosky prior to her death, can occur as a result of consensual sex and other, non-sexual, activities. Barnabei also argues that his trial counsel should have presented evi- dence contesting the finding of a vaginal bruise in the Common- wealth's forensic examination. The evidence surrounding the vaginal bruise holds special significance here, because Barnabei's capital murder conviction, and thus his eligibility for the death penalty, is predicated on the jury's finding that he murdered Sarah Wisnosky during the commission of rape. See Va. Code Ann. § 18.2-31(5) (Michie Supp. 1999).

We review a claim of ineffective assistance of counsel under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Barnabei must show that"(1) his counsel's performance fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2)`there is a reason- able probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Bell v. Evatt, 72 F.3d 421, 427 (4th Cir. 1995) (quoting Strickland, 466 U.S. at 694).

Barnabei cites two medical texts, several studies, and the affidavits of two physicians, all indicating that the occurrence of a vaginal con- tusion may be as consistent with consensual sex as with rape, and that such contusions can be caused by other activities as well. See Brief of Appellant at 21-24. One of these physicians opines in his affidavit that even the existence of a contusion could not be presumed from the Commonwealth's evidence without further forensic testing. See id. at 24.

Barnabei argues that trial counsel's failure to consult medical texts and experts was both objectively unreasonable and prejudicial under Strickland. According to Barnabei, if counsel had reviewed the medi- cal literature, he would have conducted a more effective cross- examination of the Commonwealth's principal witness on the forensic evidence, Dr. Faruk Presswalla; he would have decided to present independent evidence rebutting Dr. Presswalla's conclusions; and he might have been able to formulate a proffer sufficient to convince the trial court to appoint a defense expert.

The district court found that trial counsel's decision not to investi- gate Dr. Presswalla's medical findings was "unreasonable" under Str-ickland. The court concluded, however, that Barnabei could not demonstrate that he was prejudiced by counsel's deficient perfor- mance and therefore could not make the required showing under Str- ickland's second prong. Assuming, without deciding, that the district court correctly found that trial counsel's performance was unreason- able, we agree with the district court that Barnabei cannot show preju- dice under the second prong of Strickland.

The evidence presented at trial, taken as a whole, admits of no real uncertainty on the question of whether Barnabei raped Sarah Wis- nosky. This evidence included not only the vaginal bruise, but the anal tear incurred by Ms. Wisnosky, expert testimony that the anal tear occurred close to the time of her death, testimony that Ms. Wis- nosky was seen in Barnabei's room shortly before 2:00 a.m. on the night of her murder, forensic evidence that Ms. Winosky's blood matched that found on Barnabei's waterbed frame, the presence of Barnabei's semen in vaginal swabs taken from Ms. Wisnosky's body, and Barnabei's own admission that he had had sex with Ms. Wis- nosky on the night of her death. Furthermore, as the Commonwealth argues, the jury could well view Ms. Wisnosky's murder and the bru- tality of that murder as fatally undermining Barnabei's claim that his sexual contact with Ms. Wisnosky shortly before her murder was con- sensual. Although Barnabei apparently maintains his complete inno- cence, he raises no challenge here to the jury's determination that he committed the brutal murder.

Barnabei essentially asks us to view each piece of evidence in iso- lation. Placing special emphasis on the vaginal bruise, Barnabei con- tends that each item of evidence, considered independently, could plausibly be consistent with consensual sex, rather than rape.
The evidence cannot be approached in this way. It is possible that a woman could incur a vaginal bruise during consensual sex, or from some other cause. It is possible that a woman could incur an anal tear shortly before she was brutally murdered but not have been vaginally raped around the same time. It is possible, too, that she could have consensual sex with a partner who, all the evidence indicates, brutally murdered her shortly thereafter. And it is possible that the victim's blood could be found on the convicted murderer's bed, and that the murderer's semen could appear in a vaginal swab taken from her dead body, without a rape having occurred. However, we cannot accept Barnabei's contention that all of these extraordinarily unlikely cir- cumstances converged in this case. Taken together, the evidence points overwhelmingly to Barnabei's guilt on both rape and murder charges.
We also note, as did the district court, that Barnabei's trial counsel was able to elicit on cross-examination a concession from Dr. Pressw- alla that a vaginal bruise could be consistent with other causes aside from nonconsensual sex. This further weakens Barnabei's claim that he was prejudiced by counsel's failure to conduct an adequate cross- examination. In view of all of the above, we conclude that Barnabei was not prejudiced by trial counsel's performance in contesting the Common- wealth's forensic and DNA evidence of rape.

Barnabei contends that the district court abused its discretion by refusing to order additional DNA and forensic testing. He also con- tends that trial counsel was ineffective under Strickland for failing to seek additional testing. Barnabei focuses particularly on the Com- monwealth's failure to test the blood on the fingernail clippings taken from Sarah Wisnosky--presumably the blood of her attacker. In vari- ous pro se filings, Barnabei also maintains that "twenty some odd hairs," a bloody pair of men's moccasins, and two bloody towels should have been tested for DNA evidence and were not.

Under Rule 6(a) of the Rules Governing § 2254 Cases, a district court has the discretion to order additional discovery in a § 2254 case "for good cause shown." The district court did not abuse its discretion in refusing to order the discovery requested here because Barnabei has not met this required "good cause" standard. In the cases cited by Barnabei, additional discovery would have offered compelling sup- port for a credible alternative theory of the crime for which the peti- tioner had been convicted. See Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (reversing denial of discovery of forensic evidence when there was specific evidence linking another suspect to the murder); Toney v. Gammon, 79 F.3d 693 (8th Cir. 1996) (reversing denial of discovery of DNA evidence in rape case in which both the victim and a nearby witness offered consistent physical descriptions of the attacker that did not match the habeas petitioner). Barnabei can make no such similar "good cause" showing.

We also find that Barnabei's trial counsel was not ineffective in failing to seek additional forensic testing. The Commonwealth offered a significant amount of forensic and DNA evidence at trial--all of it, at least arguably, implicating Barnabei. We cannot conclude, under these circumstances, that trial counsel's failure to seek additional test- ing met the standard of ineffectiveness under Strickland. Thus Barna- bei has stated no constitutional claim requiring additional DNA testing.

The State of Arizona has moved this court to dismiss Mr. Comer's appeal for want of jurisdiction. *fn2 It argues that we do not have jurisdiction to order a hearing because his counsel have failed to present sufficient evidence showing that he is incompetent. Alternatively, it argues that the letters attached to its motion establish as a matter of law that he is competent to waive further federal habeas corpus proceedings and thus make a hearing unnecessary. These contentions have no merit.

Although we retain jurisdiction to resolve the State's motion to dismiss this appeal, we first remand this matter to the district court with instructions to conduct an evidentiary hearing. We remand because whether Mr. Comer has expressly or impliedly consented to the filing of any pleadings in federal court is a critical question of fact that we believe the district court is in a better position to resolve. Indeed, we have previously recognized the general presumption that an attorney is authorized to act on his client's behalf. See, e.g., Nevius, 105 F.3d at 459; Lucky, 86 F.3d at 925; Deutscher v. Angelone, 16 F.3d 981, 984 (9th Cir. 1994); cf. Roe v. FloresOrtega, 120 S. Ct. 1029, 1040 (2000) (recognizing that counsel have the authority to file an appeal on their client's behalf, even when the client does not expressly give them his consent to do so). When parties have challenged this presumption, we have remanded to the district court for a determination of whether counsel has acted with his client's consent. See, e.g., Nevius, 105 F.3d at 459; Deutscher, 16 F.3d at 983 (explaining that "[w]e remanded the case to the district court `for the limited purpose of determining whether Deutscher authorized the filing of his first federal habeas petition"); Williams v. Lockhart, 862 F.2d 155, 160 (8th Cir. 1988) (remanding to the district court to determine the "critical question of fact" of whether a client authorized petition to be filed). The presumption exists in this case because Mr. Comer himself initiated federal proceedings and signed a verification form in which he wrote that, "Peter J. Eckerstrom is authorized to represent me in this matter." Given the State's contention that his lawyers do not have the authority to proceed on his behalf, we remand to the district court to determine whether he has validly withdrawn his express or implied consent to pursue further legal remedies.

In ordering a hearing, we are also guided by Rees v. Peyton, 384 U.S. 312 (1965), a case that is virtually indistinguishable from this one. There, as here, a petitioner who was sentenced to death in state court initiated federal habeas corpus review. Id. at 313. After filing a petition for certiorari in the Supreme Court, he sought to "forego any further legal proceedings." Id. Like Mr. Comer's counsel, the petitioner's attorney in Rees raised the issue of his competence to withdraw his appeal. Id. Rather than dismiss the petition for want of jurisdiction, the Supreme Court remanded for a hearing in the district court. Id. at 313-14. In so doing, it explained:

Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees' mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court's certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees' mental competence and render a report on the matter to us. Id.; see also Drope v. Missouri, 420 U.S. 162, 180 (1975) ("[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . . even one of these factors standing alone may, in some circumstances, be sufficient."); Pate v. Robinson, 383 U.S. 375, 385-86 (1966) (holding that further inquiry is required where a defendant displays irrational behavior).

Like the Supreme Court in Rees, we require that the district court hold an evidentiary hearing to determine the validity of Mr. Comer's apparent decision to withdraw this appeal, should he continue to adhere to it. *fn3 Contrary to the State's assertion that Mr. Comer's attorneys "have presented no evidence of deterioration by Appellant," they have in fact pointed out that he has a history of irrational behavior. Mr. Comer's letters to the state judge who presided over his trial, the Attorney General's Office, and this court, in which he describes vast conspiracies against him and offers a version of his case's history that contradicts the record, are certainly consistent with irrational behavior. Moreover, we and other courts have recognized that prison conditions remarkably similar to Mr. Comer's descriptions of his current confinement can adversely affect a person's mental health. See Hoptowit v. Ray, 682 F.2d 1237, 1257-58 (9th Cir. 1982) ("The deprivation of nearly all fresh air and light, particularly when coupled with the guard's control over the window and the electric light, creates an extreme hazard to the physical and mental well-being of the prisoner."); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) ("We cannot approve of threatening an inmate's sanity and severing his contacts with reality by placing him in a dark cell almost continuously day and night."), cert. denied, 414 U.S. 878 (1973); McClary v. Kelly, 4 F. Supp.2d 195, 205-10 (W.D.N.Y. 1998) (noting that isolation can cause psychological harm). Indeed, Mr. Comer himself concedes in his note to this court that he is not "100% competent" and that the conditions of his confinement cause people to "wig out."

As the record before this court makes clear, this is not the first time Mr. Comer has displayed delusional and bizarre behavior in response to isolation. Mr. Comer was housed in the "Segregated Housing Unit" in California's Folsom Prison in 1982 and 1983, at the same time and in the same conditions a federal district court concluded constituted cruel and unusual punishment. See Toussaint v. McCarthy , 597 F. Supp. 1388, 1408-14 (N.D. Cal. 1984), reversed in part , 801 F.2d 1080 (9th Cir. 1986). *fn4 Many years later, Mr. Comer described this period of his life in a letter to a friend. He wrote of how he always suspected that the walls were moving in and would crush him. He recalled "feeling my mind shut down, 1 piece at a time," and becoming "like a robot, never knowing what day or time it was." He recounted how the rats scurried into his cell, hopped up on top of him, and made conversation. Sometimes, he tried to ignore them, but they kept talking to him.

We have grave concerns that a mentally disabled man may be seeking this court's assistance in ending his life, and therefore refuse to allow the State of Arizona to execute him at least until the district court holds an evidentiary hearing to determine if he can validly withdraw his consent to proceed with this appeal. In so doing, we reject the State's argument that a petitioner's letters or other expressions can establish as a matter of law that a petitioner is competent to waive further federal habeas corpus proceedings and thus, make a competency hearing unnecessary. In fact, the letters the State characterizes as merely "colorful," instead demonstrate the need for a hearing. In these letters, Mr. Comer asserts that: (1) he has never asked a lawyer to represent him; (2) he has never appealed his case; (3) no lawyer has ever visited him to discuss his case; and that (4) he informed his lead counsel to withdraw his appeal. As we stated earlier, the record directly contradicts each of these claims. Thus, the State's assertion that these letters establish Mr. Comer's competence and obviate the need for a hearing is meritless.

We also reject the State's argument that, in deciding whether a hearing is necessary, we should presume that Mr. Comer is competent to waive further federal review based on a state court's determination, thirteen years ago, that he was competent to stand trial. To be sure, a state court's determination on competency to waive further legal remedies may trigger a presumption of correctness. See Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990) (holding that state court's determination that the petitioner was competent to waive his right to pursue further post-conviction review of his claims was a factual one, and therefore presumed correct under the federal habeas corpus statute). But the presumption does not apply here because the determination of competency was made over a decade ago, before indications of Mr. Comer's delusional and bizarre behavior, demonstrated by his letters, emerged. See Mata v. Johnson, 2000 WL 390493, * 7 (5th Cir. 2000) (concluding that district court could not constitutionally base a finding of competency to waive further federal review on a twelve-year old finding where there was also evidence of recent irrational behavior). In short, the record before us does not allow us to presume that Mr. Comer is competent to withdraw this appeal. Pate, 383 U.S. at 385-86 (concluding that further inquiry is required where a defendant displays irrational behavior).

The State also argues that Mr. Comer's decision demonstrates his competence and obviates the need for a hearing because, even if we eventually grant him habeas relief, he "would again receive the death penalty." Unlike the State, we are unable to forecast what another court may or may not do with Mr. Comer's case. For the State to insist, however, that no matter what the federal courts decide, it will obtain another death sentence is totally inappropriate. We will not presume competency on so speculative a ground.

We direct the district court to determine "whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees, 384 U.S. at 314. In making such a determination, the district court should consider any medical and psychiatric evaluations the parties offer. Id.; see also Mata, 2000 WL 390493, *2 ("[T]here is a presumption that psychiatric and other medical examinations will be included in the decision making process."); Hays v. Murphy, 663 F.2d 1004, 1013-14 (10th Cir. 1981) (ordering the district court to consider expert information in determining the petitioner's competence to waive federal review).

Demps alleges that he recently discovered a memorandum dated September 7, 1976, written by Chief Prison Inspector and Investigator Cecil Sewell and addressed to Louie Wainwright, then Secretary of the Department of Corrections, which Demps alleges proves that he is innocent. We have reviewed the memorandum and the argument presented by counsel and do not find that Demps has made a claim sufficient to demonstrate that "by clear and convincing evidence that . . . no reasonable fact finder would have found him guilty of the underlying offense."² 28 U.S.C. § 2244 (b)(2)(B)(ii). We specifically find that Sewell's use of the word "assailant" is not inconsistent with correctional officer A.V. Rhoden's trial testimony, and that there was other substantial corroborative and eyewitness testimony for a "reasonable fact finder" to have found him guilty of the underlying offense. Id.

Therefore, because we find that Demps has failed to make a prima facie showing of the existence of any of the grounds upon which a successive petition for writ of habeas corpus may be authorized, his application for leave to file a successive petition for writ of habeas corpus is DENIED.

Demps's emergency motion for stay of execution is DENIED. 

Sacco v. Cooksey, No. 99-2545 (2d Cir. 06/06/2000) "Although the testimony of the additional witnesses would have been admissible for the purpose of impeaching Armento's credibility, see People v. Wise, 46 N.Y.2d 321, 328 (1978), it is clear from the record that, quite apart from these uncalled witnesses, trial counsel had already "aggressively sought to destroy the credibility of the People's witnesses," had called one witness who testified to Armento's alleged confession, and specifically had spent two days cross-examining [ ]. People v. Sacco, Indict. No. 0545-89, Index No. 1479/90, reprinted at Respondents' Appendix 72-81. In addition, the uncalled witnesses were, themselves, highly impeachable."

Farrington v. Senkowski, No. 98-2939 (2d Cir. 06/05/2000) " Appellant principally claims that his trial counsel's failure to cross-examine a witness based on a videotaped statement constituted ineffective assistance of counsel. Because such cross-examination would not have affected the outcome, we affirm."

United States v. Johnson, No. 99-15467 (9th Cir. 06/05/2000) "Appellant delivered his 28 U.S.C. S 2255 motion to vacate his sentence to prison officials on April 21, 1996, before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, but the motion was not filed in the district court until April 26, 1996, which was after the effective date of the AEDPA. In accord with our sister circuits, we apply the prison mailroom filing rule of Houston v. Lack , 487 U.S. 266, 270-72 (1988), and hold that a pro se prisoner's habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing. See Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2nd Cir. 2000) (per curiam); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999); Morales-Rivera v. United States, 184 F.3d 109, 110 (1st Cir. 1999) (per curiam); Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (per curiam); Moore v. United States , 173 F.3d 1131, 1135 (8th Cir. 1999); Jones v. Bertrand , 171 F.3d 499, 502 (7th Cir. 1999); Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per curiam); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); see also Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999)."[Note this is a published order.]

Moore v. Anderson, No. 99-1657 (7th Cir. 06/05/2000) [Editorial note: In a case best described as a procedural mess, the weekly recommends caution before reading this double jeopardy case.] "Moore claims to have an  interest in the finality of our previous judgment, but this finality--and Moore's interest in it--is predicated on upholding a judgment that he gained by overturning the finality of a previous judgment. As such, the facts are similar to those in Lockhart, and we find that the analysis of that case controls. Therefore, the non-retroactivity principle will not bar the state from invoking Monge in support of its request to retry Moore's habitual offender enhancement."

Ryan v. United States, No. 98-1736 (7th Cir. 06/05/2000) "Custis v. United States, 511 U.S. 485, 487 (1994), considered "whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence" and held that "a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel)". We must decide whether Custis means only that the time for the attack on the state conviction is postponed to a collateral attack on the federal sentence. Our answer is no."
 
 

Charles W. v. Maul, No. 98-9290 (2d Cir. 06/05/2000) "In his due process claim against defendant Dvoskin, plaintiff contends that the 72-hour period of post-dismissal confinement, which was authorized in the Dvoskin Memorandum, deprived him of his liberty without due process of law. The equal protection claim against defendant Sarkis rests on the allegation that, as Executive Director of the South Beach Psychiatric Center, she failed to implement the Center's compliance with the Dvoskin Memorandum. Instead, the Center continued to follow the procedures outlined in N.Y. Crim. Proc. Law § 730.60 and N.Y. Comp. Codes R. & Regs. tit. 14, § 540. Sarkis allegedly subjected McGhie to this automatic review process, depriving him of care and treatment he otherwise would have received. The Center's challenged review process, which the complaint describes as "devoid of procedural protections" and of time limits for initiating and completing reviews, was applied to all patients remanded pursuant to N.Y. Crim. Proc. Law § 730.40 who were subject to final orders of observation, but not to Article 9 civil committees. Defendants Dvoskin and Sarkis moved for dismissal of plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) on qualified immunity grounds. From the district court's denial of their motion, defendants appeal."

CASES RAISING CONSTITUTIONAL QUESTIONS

Fourth Amendment

Bond v. United States, No. 98-9349 (Manipulation of luggage stored in overhead bin of bus) (decision below at 167 F.3d 225 (5th Cir. 1999))

Question Presented: Does search occur when law enforcement officer manipulates bus passengers' carry-on luggage to determine its contents?

Decision: The Fourth Amendment recognizes that bus passengers have a reasonable expectation of privacy in baggage stowed above their seats. While passengers understand that such luggage may be touched and moved by other passengers, they do not expect that it will be subject to exploratory touching by police. There is a Fourth Amendment difference between visual and tactile observation 

Flippo v. West Virginia, 145 L.Ed.2d. 16 (1999) (GVR) 

Held: Police not entitled to make a warrantless search of anything and everything found within crime scene area, where no exceptions to warrant requirement of Federal Constitution's Fourth Amendment are invoked. 

Florida v. J.L., No. 98-1993 (Anonymous Tips; Gun Exception to Terry rule) (decision below at 727 So. 2d 204 (Fla. 1998)) 

Question Presented: Whether an anonymous tip that a person is carrying a concealed firearm at a specific location, with a detailed description of the person and his attire, is sufficiently reliable to justify an investigatory detention and frisk where the police immediately verify the accuracy of the tip? 

Decision: The Court unanimously agrees that this tip is deficient because it lacks sufficient indicia that the suspect would engage in illegal conduct. The mere fact that the information provided in the tip concerning the suspect's identity was confirmed by police prior to the search is insufficient. The Court further refuses to adopt a firearms exception to the Terry v. Ohio exception to the Fourth Amendment's probable cause requirement.

Illinois v. Wardlow, William, No. 98-1036 (Flight & Terry reasonable suspicion) (decision below at 701 N.E.2d 484 (Ill. 1998)) 

Question Presented: Is person's sudden and unprovoked flight from clearly identifiable police officer, who is patrolling high crime area, sufficiently suspicious to justify temporary investigatory stop pursuant to Terry v. Ohio? 

Decision: The Court unanimously rejects Illinois and SG's argument that unprovoked flight always justifies a Terry stop, regardless of the circumstances. Terry requires that all the circumstances of the encounter be considered. The Court splits 5-4 on whether the circumstances show a reasonable suspicion of criminal conduct. Chief Justice Rehnquist's majority opinion finds the combination of high crime area and Wardlow's sudden flight at first sight of the police sufficient to justify a stop. The Court makes no judgment on the lawfulness of the subsequent frisk. Justice Stevens' partial concurrence and dissent amplifies that flight is ambiguous and thus courts must carefully weigh all the circumstances. He concludes that because of this inherent ambiguity, and the strong evidence of poor police-citizen relations in high crime communities, the record evidence fails to show reasonable suspicion. 

Ferguson v. Charleston, S.C., No. 99-936 (Special Needs Exception to Fourth Amendment) (decision below 186 F.3d 469 (4th Cir. 1999)) 

Question Presented: Was "special needs" exception to Fourth Amendment's warrant and probable cause requirements properly applied to discretionary drug testing program targeting hospital patients that was created and implemented with police and prosecutors primarily for law enforcement purposes?

Indianapolis, Ind. v. Edmond, No. 99-1030 (Suspicionless Roadblock) (decision below at 183 F.3d 659 (7th Cir. 1999))

Question Presented: Are checkpoints at which law enforcement officers briefly stop vehicular traffic, check motorists' licenses and vehicle registrations, look for signs of impairment, and walk narcotic dog around exterior of each stopped automobile unlawful under Fourth Amendment?

Fifth Amendment

Dickerson v. United States, No. 99-5525 (18 U.S.C. § 3501 & Miranda v. Arizona) (decision below 166 F.3d 667 (4th Cir. 1999)) 

Question Presented: Was passage of 18 U.S.C. § 3501 unconstitutional attempt by Congress to legislatively overrule Miranda v. Arizona?

Portuondo v. Agard, No. 98-1170 (Teague v. Lane; Comments on Silence) (decision below at 159 F.3d at 123, modifying 117 F.3d 696 (2nd Cir. 1998)) 

Question Presented: Did Second Circuit err in extending this Court's decision in Griffin v. California, which prohibited prosecutor's comment on defendant's right to remain silent, to prosecutor's comments on testifying defendant's presence in courtroom during testimony of other witnesses? 

Decision: Such comments do not violate the Fifth or Sixth Amendments, or due process. Where the defendant does not remain silent, but chooses to testify, the prosecutor is free to suggest that his testimony is not credible because he, unlike other witnesses, heard the other witnesses testify.

United States v. Hubbell, No. 99-166 (Production of Business Records) (decision below at 167 F.3d 1456 (D.C. Cir. 1999)) 

Questions Presented: (1) Does Fifth Amendment privilege against self-incrimination protect information previously recorded in voluntarily created documents that defendant delivered to government pursuant to immunized act of production? (2) Does defendant's act of producing ordinary business records constitute compelled testimonial communications solely because government cannot identify documents with reasonable particularity before there are produced? 

Sixth Amendment

Roe, Warden v. Ortega, No. 98-1441 (Right to Counsel on Appeal) (decision below at 160 F.3d 534 (9th Cir. 1998)) 

Question Presented: Whether trial counsel has a Sixth Amendment duty to file a notice of appeal following a guilty plea in the absence of such a request by the defendant, particularly where the defendant has been advised of his appeal rights? 

Decision: Counsel for a convicted defendant who has not clearly instructed counsel to file an appeal or not to do so renders ineffective assistance per Strickland v. Washington by failing to consult with the defendant about taking an appeal, if, in light of all the information known, there is reason to think either that a rational defendant would want to appeal or that the defendant reasonably demonstrated to counsel an interest in appealing, and the defendant shows a reasonable probability that, but for the lack of such consultation, he would have timely appealed. 

T. Williams v. Taylor, No. 98-8384 (Ineffective Assistance of Counsel at Trial) (decision below at 163 F.3d 860 (4th Cir. 1998)) (see also Section 2 below for Question 2, which raises issues under 28 U.S.C. § 2254(d)). 

Question Presented: (1) Where both the federal district court judge and state trial court judge who had originally sentenced Petitioner to death concluded that counsel's deficient performance was prejudicial under the test this Court articulated in Strickland v. Washington, did the Fourth Circuit err in denying relief by reformulating the Strickland test so that: a) ineffective assistance of counsel claims may be assessed under the "windfall" analysis articulated in Lockhart v. Fretwell even where trial counsel's error was no "windfall"; and b) the petitioner must show that absent counsel's deficient performance in the penalty phase, all twelve jurors would have voted for life imprisonment, even where state law would have mandated a life sentence if only one juror had voted for life imprisonment? 

Decision: In a 6-3 vote, the majority held that trial counsel's failure to adequately investigate and present evidence of severe childhood neglect and abuse was prejudicial per Strickland v. Washington. Trial counsel began to prepare for the sentencing hearing only a week prior to trial and failed to uncover Williams's nightmarish childhood, borderline mental retardation, inability to proceed beyond 6th grade, favorable prison record and strong evidence that he would likely not be dangerous in a prison setting. The state supreme court erred in (1) applying Lockhart v. Fretwell's prejudice test to this straightforward performance IAC claim governed by Strickland and in (2) failing to give adequate weight to a significant portion of the missing mitigation evidence. 

Eighth Amendment

Bryan v. Moore, No. 99-6723 (Constitutionality of Electric Chair) (decision below Fla. Oct. 20, 1999)) 

Questions Presented: (1) Did the Florida Supreme Court's appraisal of the likelihood that Mr. Bryan will suffer needless agony and degradation when he is put to death by Florida's electrocution machinery violate the Eighth Amendment by disregarding a constitutionally unacceptable risk of physical violence, disfigurement and torment? (2) Did the Florida Supreme Court err in concluding that the record as a whole insufficiently sustains Mr. Bryan's contention that his execution by Florida's electrocution machinery unnecessarily exposes him to physical suffering and degradation in violation of the Eighth Amendment? (3) Following the notorious, repeated malfunctioning of Florida's electrocution machinery, resulting in ghastly spectacles of violent disfigurement, did the Florida Supreme Court err in rejecting Mr. Bryan's contention that his subjection to execution by that machinery constitutes psychological and moral cruelty that violated the Eighth Amendment? 

Decision: On January 24, 2000, the Court dismissed the writ in an order which states: "In light of the representations by the State of Florida, through its Attorney General, that petitioner's Ôdeath sentence will be carried out by lethal injection, unless petitioner affirmatively elects death by electrocution' pursuant to the recent amendments to Section 922.10 of the Florida Statutes, the writ of certiorari is dismissed as improvidently granted." 

Ramdass v. Moore, No. 99-7000 (Simmons v. South Carolina Issue) (decision below 187 F.3d 396 (4th Cir. 1999)) 

Question Presented: Simmons v. South Carolina holds that when a prosecutor seeks the death sentence on the ground of the defendant's future dangerousness, the defendant has a constitutional right to inform the jurors truthfully that if they spare his life, state law forbids him ever to be released from prison. Does the rule in Simmons turn on the actual operation of state law, or on its hyper-technical terms; and must a federal habeas court adjudicating a Simmons claim make its own analysis of the functional consequences of state law, or is it bound by the state courtÕs characterization of state law for federal constitutional purposes? 

Weeks v. Angelone, No. 99-5746 (Right to Clarifying Instruction on Sentencing Procedure) (decision below 176 F.3d 249 (4th Cir. 1999))

Question Presented: When a capital sentencing jury informs the judge that it does not understand the sentencing instructions held facially constitutional in Buchanan v. Angelone and specifically asks whether or not it is free to consider a sentence less than death if it finds one or more aggravating factors, is the judge constitutionally required to clarify that a death sentence is not mandatory upon the finding of an aggravating factor but that the jury should consider mitigating evidence as well in making its sentencing decision? 

Decision: In a 5-4 decision, the Court affirms the Fourth Circuit's denial of habeas relief. The Constitution is not violated when a trial judge directs the sentencer to a constitutionally sufficient instruction in response to a question regarding the proper consideration of mitigating circumstances. The law presumes not only that juries follow instructions but that they understand them as well. At best, the record shows only a possibility that the jury might have misunderstood its role; no reasonable probability is shown. The majority does not discuss the meaning of § 2254 (d). The dissent concludes that the record contains powerful evidence that the jury failed to appreciate its duty to consider mitigation even if it concluded that Weeks was eligible for a capital sentence. 

Fourteenth Amendment

Apprendi v. New Jersey, No. 99-478 (Race Crime Enhancer; Standard of Proof) (decision below, 731 A.2d 485 (N.J. 1999)) 

Question Presented: Is New Jersey's hate crime law, N.J. Stat. Ann. § 2C:44-3e, unconstitutional insofar as it provides for extended term of imprisonment increasing maximum possible penalty by 10 years, on basis of proof by preponderance of evidence rather than proof beyond reasonable doubt, and denies defendant rights to notice by indictment and trial by jury? 

Castillo v. United States, No. 99-658 (Crime Element/Sentence Enhancer Issue) (decision below 179 F.3d 321 (5th Cir. 1999)) 

Question Presented: In prosecution under Sec. 924(c)(1), is type of firearm element of offense that must be alleged in indictment and found by jury beyond a reasonable doubt, or is it sentencing factor to be found by judge by preponderance of evidence? 

Martinez v. Court of Appeal of CA, No. 98-7809 (Right of Self-Representation on Direct Appeal) (decision below, Calif. Ct. App. 10/16/98, unreported)

Question Presented: Does a criminal defendant have a constitutional right to elect self-representation on direct appeal from a judgment of conviction? 

Decision: The Court unanimously concludes that the Sixth Amendment Faretta right does not lead to the conclusion that the Due Process clause requires a similar rule for appeal. Unlike Faretta, there is little historical evidence suggesting right to self-representation on appeal, as right to appeal itself did not exist until early in the 20th century. To assure the integrity and efficiency of the appellate system, states are free to bar self-representation on appeal. Decision does not prohibit this practice, however. 

Smith v. Robbins, No. 97-1037 (Right to Counsel on Appeal & Anders Procedure) (decision below at 152 F.3d 1062 (9th Cir. 1997)) 

Questions Presented: (1) Did Ninth Circuit err in finding that California's no-merit brief procedure, in which appellate counsel who has found no non-frivolous issues remains available to brief any issues appellate court might identify, violates Sixth Amendment Anders right to effective assistance of counsel on appeal? (2) Did Ninth Circuit err when it ruled that asserted Anders violation required new appeal, without testing claimed Sixth Amendment error under Strickland v. Washington? (3) Did Ninth Circuit violate rule announced in Teague v. Lane, which prohibits retroactive application of new rule on collateral review, when it invalidated California's well-settled, good-faith interpretation of federal law? 

Decision: California's Anders procedure, as outlined in Wende, satisfies the Fourteenth Amendment, which is primarily concerned with assuring that state appellate review procedure reasonably assures that an indigent's appeal is resolved in a way that is related to the merits of the appeal. Anders' proposed procedure was prophylactic rule only and non-binding upon the states. Case is remanded to provide Robbins with opportunity to demonstrate that appellate counsel's representation was deficient pursuant to standard set forth in Strickland v. Washington. 

Ex Post Facto

Carmell v. Texas, No. 98-7540 (Ex Post Facto) (decision below at 963 S.W.2d 833 (1998)) 

Question Presented: Whether the Texas Court of Appeals erred in concluding that application of the 1993 version of Texas's article 38.07, Code of Criminal Procedure, was not ex post facto when: (i) the offense occurred in 1992, a full year before the adoption of the new rule of law; (ii) there was no outcry for approximately three years, and, (iii) the petitioner would have otherwise been entitled to an acquittal, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

Decision: A five justice majority held that application of the amended statute to Carmell violated the ex post facto clause because it lessened the quantum of evidence the state was required to produce to secure a conviction. The Court reaffirms Calder v. Bull's four category standard. The Court rejects the United States's argument that urged the Court to abandon the Calder category at issue here -- one that forbids retroactive application of a statute that lessens the evidentiary burden of the government to establish guilt beyond a reasonable doubt.

Seling v. Young, No. 99-1185 (commitment of sexually violent predator; double jeopardy; ex post facto)(decision below at 192 F.3d 870 (9th Cir. 1999)) 

Question Presented: Can an otherwise valid civil statute be divested of its civil nature and held to violate Double Jeopardy and Ex Post Facto Clauses because administrative agency operating commitment facility fails to provide for treatment and other conditions of confinement mandated by statute at some time during individual's commitment? 

CASES RAISING HABEAS CORPUS QUESTIONS

Fiore v. White, No. 98-942 (Due Process, Teague v. Lane)(decision below at 149 F.3d 221 (3rd Cir. 1998)) 

Questions Presented: (1) Did state flout due process and evade federal habeas corpus relief for incontestably innocent prisoner by claiming that appellate decision constituted "new law" regarding crime for which, if subsequent state ruling were applied, state did not and could not prove key element at trial; (2) Should federal habeas relief be extended to protect federal constitutional rights in case in which state refuses to retroactively apply decision that was based on already existing clear language of statute? 

On November 30, 1999, the Court unanimously certified the following question to the Pennsylvania Supreme Court: Does the interpretation of Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), set forth in Scarpone v. Commonwealth, 535 Pa. 273, 279, 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law in Pennsylvania at the date Fiore's conviction became final? 

Slack v. McDaniel, No. 98-6322 (Exhaustion/Successive Claims/Denial of Certificate of Appealability) (decision below unreported) (Oral argument held 10-04-99) 

Question Presented: If a person's petition for habeas corpus under 28 U.S.C. § 2254 is dismissed for failure to exhaust state remedies and he subsequently exhausts his state remedies and refiles the § 2254 petition, are claims included within the petition that were not included within the initial § 2254 filing "second or successive" habeas applications? 

In an order dated October 18, 1999, the Court ordered: This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs not to exceed 25 pages addressing the following questions: (1) Do the provisions of the AEDPA, specifically including 28 U.S.C. § 2253(c) and 28 U.S.C. § 2244(b), control the proceedings on appeal? (2) If AEDPA does control the proceedings on appeal, may a certificate of appealability issue under 28 U.S.C. § 2253(c)? 

Decision: The Court resolved three issues in this case. First, The COA provision of the AEDPA found in §2253(c) applies to all appeals initiated after April 24, 1996. The Court distinguishes Lindh v. Murphy. Second, a COA may issue when a district court dismisses a petition on procedural grounds so long as jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the district court correctly resolved the procedural issue. The Court rejects Nevada's argument that a COA cannot issue unless the district court's dismissal rejects a constitutional issue. Third, a petition that is filed after a previous one has been dismissed without prejudice to allow for exhaustion of state remedies is not a second or successive petition.

T. Williams v. Taylor, No. 98-8384 (Construction of § 2254(d)) (decision below at 163 F.3d 860 (4th Cir. 1998)) (see Section 1 above for Question 1 raising issues of ineffective assistance of counsel) 

Question Presented: (2) Did the Fourth Circuit err in concluding that, under 28 U.S.C. § 2254 (d)(1), a state habeas court's decision to deny a federal constitutional claim cannot be "contrary to" clearly established Federal law as determined by the Court unless it is in "square conflict" with a decision of this Court that is "controlling as to law and fact"? (3) Did the Fourth Circuit err in concluding that, under 28 U.S.C. § 2254(d)(1), a state habeas court's decision to deny a federal constitutional claim cannot involve "an unreasonable application of" clearly established Federal law as determined by the Court unless the state court's decision is predicated on an interpretation or application of relevant precedent that "reasonable jurists would all agree is unreasonable?Ó 

Decision: The Court reversed the Fourth Circuit and announced a construction of §2254(d). Habeas corpus relief is available on claims adjudicated on their merits in state court if the state court decision is either contrary to or an unreasonable application of clearly established Supreme Court law. Relief is available under the "contrary to" clause if the state decision employs an incorrect rule of law in deciding the claim or applies a Supreme Court decision with similar facts incorrectly. Relief is available under the "unreasonable application" clause even where the state court has applied the correct Supreme Court rule but has done so in a manner that is objectively unreasonable and leaves the federal court with the firm conviction that the state court's resolution is unsatisfactory. Relief is not available if the state court decision is merely incorrect. Rules set forth in Supreme Court decisions announced prior to finality are clearly established per §2254(d). In this case, the state supreme court's rejection of Williams's ineffective assistance of counsel claim violated both clauses. Strickland v. Washington announced the rule that governs this claim. The state court's utilization of the rule announced in Lockhart v. Fretwell in conjunction with the Strickland rule is contrary to clearly established law, and its failure to consider much of the mitigating evidence Williams presented in state post-conviction proceedings to establish the merit of his claim demonstrates an unreasonable application of the law to the facts. 

M. Williams v. Taylor, No. 99-6615 (Right to Federal Evidentiary Hearing) (decision below at 189 F.3d 421 (4th Cir. 1999)) 

Question Presented: Whether 28 U.S.C. § 2254(e)(2), which prohibits a federal habeas corpus evidentiary hearing only if the applicant has failed to develop the factual basis of a claim in state court proceedings, governs petitioner's claim where throughout state proceedings, the state suppressed the relevant facts, denied petitioner's discovery requests, denied all investigative and expert resources to investigate, develop, and discover claims, and denied an evidentiary hearing? 

Decision: The Court unanimously rejects Virginia's strict liability argument and instead construes §2254(e) consistently with it prior decision in Keeney v. Tamayo-Reyes. So long as the prisoner exercises reasonable diligence in attempting to develop and present facts in support of claims in the state courts, he will not be denied a federal hearing if the prisoner was unable to uncover and present the facts prior to the conclusion of state proceedings. Of three claims presented in the case, the Court concludes that Williams showed sufficient diligence with regard to a jury misconduct and prosecution misconduct claim, but that his efforts to identify facts in support of a Brady v. Maryland claim, which consisted chiefly of requesting disclosure from the attorney general of a mental health report that was likely reasonably available via other means failed to show a requisite degree of diligence.

Edwards, Warden v. Carpenter, No. 98-2060 (IAC as Cause; Default of IAC in State Court) (decision below at 163 F.3d 938 (6th Cir. 1998))

Question presented: Whether a federal habeas court is barred from considering an ineffective-assistance-of-counsel claim as "cause" for the procedural default of another habeas claim when the ineffective-assistance claim is itself procedurally defaulted. 

Decision: A defaulted ineffective assistance of counsel claim cannot be used in federal habeas proceedings to show "cause" to excuse a default on other claims.

Artuz v. Bennett, No. 99-1238 (Properly filed State Petition & Tolling of Statute of Limitations) (decision below 199 F.3d 116 (2d Cir. 1999))

Question Presented: Is state court post-conviction application "properly filed" under 28 USC §2244(d)(2), which tolls one-year statute of limitations for habeas corpus petitions in 1996 AEDPA, if it is filed in court that does not have power to hear merits of application?

CASES RAISING HARMLESS ERROR QUESTIONS

United States v. Martinez-Salazar, No. 98-1255 (Erroneous Removal of Juror/Structural Error) (decision below at 146 F.3d 653 (9th Cir. 1998))

Question Presented: Is defendant entitled to automatic reversal of his conviction in case in which he used peremptory challenge to remove potential juror whom district court erroneously failed to remove for cause, and he ultimately exhausted his remaining peremptory challenges? 

Decision: No. The Court holds that if the defendant elects to cure such an error by exercising a peremptory challenge, he has not been denied any rule-based or constitutional right because no biased juror was seated. The majority indicates that result might be different if facts show judge deliberately denied cause strike to require the exercise of the peremptory strike. 

CASES RAISING FEDERAL STATUTORY QUESTIONS

New York v. Hill, No. 98-1299 (Interstate Agreement on Detainers/Waiver of Speedy Trial) (decision below at 704 N.E.2d 542 (N.Y.CtApp. 1998)) 

Question Presented: Does defendant's express agreement to trial date beyond 180-day period required by Interstate Agreement on Detainers constitute waiver of his right to trial within such period? 

Decision: The Court unanimously says yes. Scheduling matters are non-fundamental, and are plainly among rights that counsel can waive without the express agreement of the client. Only the attorney can know whether the defense will be ready by a given date and whether other matters will interfere with adequate preparation. 

Carter v. United States, No 99-5716 (Lesser Included Offenses) (decision below) 

Question Presented: Whether federal bank larceny, 18 U.S.C. § 2113(b), is a lesser included offense of federal back robbery, 18 U.S.C. § 213(a), as a matter of law? 

Duckworth v. French, No. 99-224 & 99-582 (PLRA Automatic Stay Provision/Separation of Powers) (decision below 178 F.3d 437 (7th Cir. 1999)) 

Question Presented: (1) Does federal district court have authority to suspend automatic stay under traditional equitable standards? (2) Does automatic stay provision violate constitutional separation of powers principles?
 
 

The NAACP Legal Defense Fund's "Death Row USA" is now available on DPIC's web site. Features of the report include: 

• List of all prisoners on death row by state, including race of inmates 
• Death row statistics 
• Recent Supreme Court decisions 
• Number of executions by year, gender, and race 

Vice President Al Gore, a longtime death penalty supporter, recently suggested that new studies exposing flaws in the application of the death penalty could prompt a re-evaluation of capital punishment:
    "If there is a study that shows a large number of mistakes, that has to make you uncomfortable. I have assumed up until very recently that the mistakes were rare and unusual.
    . . . 
    "If further investigation shows that the Columbia [study] estimates are correct, then that will have a major impact on the way the country feels about not necessarily the death penalty itself but certainly the way in which our judicial system is arriving at these conclusions." (New York Times, 6/14/00) See also, the Columbia Law School study, "A Broken System: Error Rates in Capital Cases," below.

First Federal Execution Since 1963 Set for August On August 5, 2000, Juan Raul Garza is scheduled to become the first inmate executed by the federal government in over 35 years. Garza was sentenced to death under the 1988 federal "drug kingpin" law, which authorizes the death penalty for anyone convicted of killing in furtherance of an illegal drug enterprise. Philip Hilder, one of Garza's attorneys, says some of Garza's associates, including the triggermen in some murders, were given lighter sentences in exchange for their testimony against Garza. (Texas Lawyer, 6/12/00) See also, federal death penalty.

 A new effort to express public concern about the death penalty is available through a group headed by Sister Helen Prejean: Moratorium 2000

Landmark Study Finds Capital Punishment System "Fraught with Error"
A comprehensive new study of the death penalty found that serious mistakes wre made in 2/3 of all capital cases. The Columbia Law School study, "A Broken System: Error Rates in Capital Cases," examined every capital conviction between 1973-1995 and found that the most common errors were incompetent defense attorneys (37%), prosecutorial misconduct (19%) and faulty jury instructions (20%).
    Also among the report's central findings:

• 82% of those whose capital judgments were overturned due to serious error were given a sentence less than death after the errors were cured on retrial, and seven percent were found to be not guilty of the capital crime.
• More than 90% of the states that administer death sentences have overall error rates of 52% or higher. 85% have error rates of 60% or higher.
• 5% of the 5,760 inmates sentenced to death nationwide between 1973-1995 were executed within the study period.

   Professor James S. Liebman, who conducted the study, stated, "American capital sentences are persistently and systematically fraught with serious error. Indeed, capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt whether we do catch them all." (Press Release, 6/12/00) For more information, the complete report, "A Broken System: Error Rates in Capital Cases" can be found on The Justice Project's web site.

Problems Discovered in Texas Death Penalty Cases An investigation by the Chicago Tribune has found that of the 131 cases where a death row inmate has been executed in Texas under Governor George W. Bush:

• 43 included defense attorneys publicly sanctioned for misconduct -- either before or after their work on these cases.
• 40 involved trials where the defense attorneys presented no evidence or only one witness during the sentencing phase.
• 29 included a psychiatrist who gave testimony that the American Psychiatric Association condemned as unethical and untrustworthy.
• 23 included jailhouse informants, considered to be among the least credible of witnesses.
• 23 included visual hair analysis, which has consistently proved unreliable.

(Chicago Tribune, 6/11/00) Read Part I and Part II of the two part series.

Florida Botches Lethal Injection In its third execution by lethal injection, execution technicians at Florida State Prison struggled for 33 minutes to insert the lethal intravenous drip into Bennie Demps' vein. "They butchered me back there," Demps shouted just before his execution. "I was in a lot of pain. They cut me in the groin, they cut me in the leg. I was bleeding profusely." Demps said technicians twice sliced into his body and had stitched up one wound before taking him to the execution chamber. Mr. Demps pleaded with his lawyer, George Schaefer, to investigate the way the state's executioners handled him. In a letter to State Attorney Rod Smith, Schaefer called for a formal investigation into the execution. (New York Times, 6/9/00)

Pope To Issue Clemency Pleas in all Death Penalty Cases The Vatican has formally announced its policy to write to every U.S. governor before an imminent execution, asking that it be halted. "The Holy Father is very committed to taking a hands-on role [in the death penalty issue]," said Cardinal Roger Mahony, archbishop of Los Angeles. The announcement was made following a speech by Cardinal Mahony applauding recent moratorium efforts, but stressing that the Catholic Church's ultimate goal is abolition. (Catholics Against Capital Punishment News Notes, 6/5/00)

DNA Testing Authorized in Oklahoma; Proposed in Texas Oklahoma Governor Frank Keating recently signed the DNA Forensic Testing Act, a bill which authorizes the Oklahoma Indigent Defense System to investigate and screen claims that DNA testing would prove some inmates didn't commit the crimes they were convicted of. "This legislation is vital to guard against the horrible potential of an innocent person being wrongfully convicted, imprisoned, or executed," Keating said. "This bill takes a major step toward ensuring the integrity of our criminal justice system." (Tulsa World, 6/2/00)

In Texas, State Senator Rodney Ellis (D-Houston) proposed a bill that would give inmates access to post-conviction DNA testing. Similar to legislation in New York and Illinois, the bill would allow inmates to petition the trial court for DNA testing as part of their appeals. Endorsing the DNA bill was Senator David Sibley (R-Waco), who also endorsed Ellis' proposal to create an "innocence commission" that would review select death penalty cases and make recommendations for improving the state's capital punishment system. A spokesperson for Governor Bush said the governor "supports reviewing state law on the use of DNA evidence when the DNA results are likely to determine guilt or innocence," but he would have to review the specifics of the DNA law. (New York Times, 6/9/00). 

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