In this week's massive issue, analysis of Apprendi v. New Jersey (due process requirements in non-capital sentencing & notice of charges), as well as six capital cases.  Covered cases include:

Pierre v. Cowan, No. 98-3451 (7th Cir. 06/28/2000) (remanding as trial court erroneously found procedural default where none existed and bad instructions on unanimity on mitigation)

Carter v. Bell, No. 99-5270 (6th Cir. 07/07/2000) (IAC in penalty phase for failing to discover and exploit readily accessible mitigation evidence)

Meeks v. Moore, No. 98-3693 (11th Cir. 06/27/2000) (habeas petition's guilt phase claims affirmed where penalty claims were being litigated in state court)

Fisher v. Lee, No. 99-25 (4th Cir. 06/19/2000) (Relief denied on claims: (1) that he received, in various particulars, ineffective assistance of counsel during the guilt and sentencing phases of his state court trial; and (2) that the state trial court's instruction on the "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague.)

Penry v. Johnson, No. 99-20868 (5th Cir. 06/20/2000) (habeas denied on claims that the jury instructions given during the punishment phase of his trial did not allow the jury to consider and give effect to mitigating evidence regarding his alleged mental retardation and severe child abuse; thus, the instructions violated the Supreme Court's directive in Penry v. Lynaugh)

Harjo v. Gibson, No. 99-7041 (10th Cir. 06/21/2000) (unpublished -- issues include HAC,  (1) counsel failed to adequately investigate and present additional mitigating evidence; (2) counsel failed to request additional expert assistance; (3) counsel failed to object to improper prosecutorial comments; (4) counsel failed to object to the removal for cause of six prospective juror)

In re Provenzano, No. 00-13193 (11th Cir. 06/21/2000) (vacating stay) (successive -- competency  to be executed, lethal injection challenge and competency at trial)

Petitioner Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with, inter alia, second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected Apprendi’s claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.

Held:  The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Pp. 7—31.

    (a)  The answer to the narrow constitutional question presented–whether Apprendi’s sentence was permissible, given that it exceeds the 10-year maximum for the offense charged–was foreshadowed by the holding in Jones v. United States, 526 U.S. 227, that, with regard to federal law, the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The Fourteenth Amendment commands the same answer when a state statute is involved. Pp. 7—9.

    (b)  The Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. E.g., In re Winship, 397 U.S. 358, 364. The historical foundation for these principles extends down centuries into the common law. While judges in this country have long exercised discretion in sentencing, such discretion is bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U.S. 443, 447. The historic inseparability of verdict and judgment and the consistent limitation on judges’ discretion highlight the novelty of a scheme that removes the jury from the determination of a fact that exposes the defendant to a penalty exceeding the maximum he could receive if punished according to the facts reflected in the jury verdict alone. Pp. 9—18.

    (c)  McMillan v. Pennsylvania,477 U.S. 79, was the first case in which the Court used “sentencing factor” to refer to a fact that was not found by the jury but could affect the sentence imposed by the judge. In finding that the scheme at issue there did not run afoul of Winship’s strictures, this Court did not budge from the position that (1) constitutional limits exist to States’ authority to define away facts necessary to constitute a criminal offense, id., at 85—88, and (2) a state scheme that keeps from the jury facts exposing defendants to greater or additional punishment may raise serious constitutional concerns, id., at 88. Almendarez-Torres v. United States,523 U.S. 224–in which the Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment–represents at best an exceptional departure from the historic practice. Pp. 19—24.

    (d) In light of the constitutional rule expressed here, New Jersey’s practice cannot stand. It allows a jury to convict a defendant of a second-degree offense on its finding beyond a reasonable doubt and then allows a judge to impose punishment identical to that New Jersey provides for first-degree crimes on his finding, by a preponderance of the evidence, that the defendant’s purpose was to intimidate his victim based on the victim’s particular characteristic. The State’s argument that the biased purpose finding is not an “element” of a distinct hate crime offense but a “sentencing factor” of motive is nothing more than a disagreement with the rule applied in this case. Beyond this, the argument cannot succeed on its own terms. It does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury’s verdict, as does the sentencing “enhancement” here. The degree of culpability the legislature associates with factually distinct conduct has significant implications both for a defendant’s liberty and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment. That the State placed the enhancer within the criminal code’s sentencing provisions does not mean that it is not an essential element of the offense. Pp. 25—31.
159 N. J. 7, 731 A. 2d 485, reversed and remanded.

    Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., filed a concurring opinion, in which Scalia, J., joined as to Parts I and II. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., joined.

In the wake of Miranda v. Arizona, 384 U.S. 436, in which the Court held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence, id., at 479, Congress enacted 18 U.S.C. § 3501 which in essence makes the admissibility of such statements turn solely on whether they were made voluntarily. Petitioner, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the Federal Bureau of Investigation, on the ground he had not received “Miranda warnings” before being interrogated. The District Court granted his motion, and the Government took an interlocutory appeal. In reversing, the Fourth Circuit acknowledged that petitioner had not received Miranda warnings, but held that §3501 was satisfied because his statement was voluntary. It concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question. 

Held:  Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. Pp. 2—14.

    (a) Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress. Given §3501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and its instruction for trial courts to consider the totality of the circumstances surrounding the giving of the confession, this Court agrees with the Fourth Circuit that Congress intended §3501 to overrule Miranda. The law is clear as to whether Congress has constitutional authority to do so. This Court has supervisory authority over the federal courts to prescribe binding rules of evidence and procedure. Carlisle v. United States, 517 U.S. 416, 426. While Congress has ultimate authority to modify or set aside any such rules that are not constitutionally required, e.g., Palermo v. United States, 360 U.S. 343, 345—348, it may not supersede this Court’s decisions interpreting and applying the Constitution, see, e.g., City of Boerne v. Flores, 521 U.S. 507, 517—521. That Miranda announced a constitutional rule is demonstrated, first and foremost, by the fact that both Miranda and two of its companion cases applied its rule to proceedings in state courts, and that the Court has consistently done so ever since. See, e.g., Stansbury v. California, 511 U.S. 318 (per curiam). The Court does not hold supervisory power over the state courts, e.g., Smith v. Phillips, 455 U.S. 209, 221, as to which its authority is limited to enforcing the commands of the Constitution, e.g., Mu’Min v. Virginia, 500 U.S. 415, 422. The conclusion that Miranda is constitutionally based is also supported by the fact that that case is replete with statements indicating that the majority thought it was announcing a constitutional rule, see, e.g., 384 U.S., at 445. Although Miranda invited legislative action to protect the constitutional right against coerced self-incrimination, it stated that any legislative alternative must be “at least as effective in appraising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.” Id., at 467.

    A contrary conclusion is not required by the fact that the Court has subsequently made exceptions from the Miranda rule, see, e.g., New York v. Quarles, 467 U.S. 649. No constitutional rule is immutable, and the sort of refinements made by such cases are merely a normal part of constitutional law. Oregon v. Elstad, 470 U.S. 298, 306–in which the Court, in refusing to apply the traditional “fruits” doctrine developed in Fourth Amendment cases, stated that Miranda’s exclusionary rule serves the Fifth Amendment and sweeps more broadly than that Amendment itself–does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth. Finally, although the Court agrees with the court-appointed amicus curiae that there are more remedies available for abusive police conduct than there were when Miranda was decided–e.g., a suit under Bivens v. Six Unknown Named Agents, 403 U.S. 388–it does not agree that such additional measures supplement §3501’s protections sufficiently to create an adequate substitute for the Miranda warnings. Miranda requires procedures that will warn a suspect in custody of his right to remain silent and assure him that the exercise of that right will be honored, see, e.g., 384 U.S., at 467, while §3501 explicitly eschews a requirement of preinterrogation warnings in favor of an approach that looks to the administration of such warnings as only one factor in determining the voluntariness of a suspect’s confession. Section 3501, therefore, cannot be sustained if Miranda is to remain the law. Pp. 2—12. 

    (b)  This Court declines to overrule Miranda. Whether or not this Court would agree with Miranda’s reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification. E.g., United States v. International Business Machines Corp, 517 U.S. 843, 856. There is no such justification here. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U.S. 314, 331—332. While the Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to Miranda. If anything, subsequent cases have reduced Miranda’s impact on legitimate law enforcement while reaffirming the decision’s core ruling. The rule’s disadvantage is that it may result in a guilty defendant going free. But experience suggests that §3501’s totality-of-the-circumstances test is more difficult than Miranda for officers to conform to, and for courts to apply consistently. See, e.g., Haynes v. Washington,373 U.S. 503, 515. The requirement that Miranda warnings be given does not dispense with the voluntariness inquiry, but cases in which a defendant can make a colorable argument that a self-incriminating statement was compelled despite officers’ adherence to Miranda are rare. Pp. 12—14.
166 F.3d 667, reversed.

    Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. 

In this court, St. Pierre's alternating waivers and non-waivers have continued. After counsel filed a notice of appeal on his behalf and the appeal was docketed on September 29, 1998, St. Pierre waited a  little more than two months before filing (on December 7, 1998) his first pro se motion to dismiss the case pursuant to Fed. R. App. P. 42(b). As requested by the court, counsel for both sides filed their responses to that motion on December 16, 1998. On December 21, 1998, the docket sheet indicates that "the pro se's motion to waive appeals is WITHDRAWN." Naturally, that was not the end of things. On the day this panel heard oral argument, St. Pierre once again (on March 22, 1999) filed a motion to waive his appeals. Counsel responded, and the panel elected to take the motion with the case.

Not surprisingly, counsel for St. Pierre have devoted most of their attention in his brief on appeal to the question of procedural default and to the waiver finding that was crucial to this case. They argue first that the Illinois Supreme Court's purported finding of waiver was not an adequate and independent state ground sufficient to support a finding of procedural default, because the record was confused, the finding was wholly arbitrary, and it violated St. Pierre's due process rights. Second, based primarily on the way the Illinois Supreme Court handled the waivers of another death row inmate, Lloyd Wayne Hampton, they argue that the Illinois court has not applied its rules concerning waiver consistently and thus this is not the kind of evenhanded state procedural rule that can bar substantive review of the petition under Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982). Third, they assert that the Illinois Supreme Court's assertion of waiver failed to satisfy the standards for this kind of waiver established in Rees v. Peyton, 384 U.S. 312 (1966) (per curiam), Gilmore v. Utah, 429 U.S. 1012 (1976), and Demosthenes v. Baal, 495 U.S. 731 (1990) (per curiam). Those cases stand for the proposition that a waiver will suffice in these grave circumstances only if it is unequivocal, under oath, knowing and voluntary, and unwavering. Next, they argue that St. Pierre did establish both cause and prejudice that would excuse his defaults, noting in addition to other points that the Illinois Supreme Court's refusal to consider the May 2 and the May 3 letters together was arbitrary, led to an erroneous finding of "unequivocal" waiver, and was the kind of interference with the defendant's rights that can, and does here, excuse procedural default. Last, they argue the merits of the error in the jury instruction with respect to the unanimity requirement. On this point, they distinguish Enoch on the ground that it is one thing to tell the jury that a capital sentence must be supported by a unanimous verdict (a correct proposition of law), and quite another affirmatively to tell them that a decision not to impose the death penalty must be unanimous (an incorrect statement). Enoch involved only the former kind of statement and thus has nothing to say about St. Pierre's situation, which also involved the latter.

  In our view, the district court should not have found procedural default for Claims I-IV and VI. We base this conclusion on the totality of the record. This is not because we disagree with the state trial court's finding that at any given moment, St. Pierre could be an intelligent, well informed individual, who could understand the nature of the proceedings against him and who could cooperate effectively with counsel. Even though we are adjudicating this case under the substantive standards that applied before the effective date of AEDPA, see Lindh v. Murphy, 521 U.S. 320, 336-37 (1997), the state court's finding on a question like competency is entitled to a presumption of correctness. But there are several problems with the conclusions the Illinois Supreme Court and the district court drew from the state trial court's findings. First, the fact that a snapshot of St. Pierre's ability to function mentally showed a competent individual could not reflect the reality of his behavior over time. The state trial court itself was plainly aware of this problem, which it highlighted in its final recommendation to the Illinois Supreme Court (most of which we have reproduced above). St. Pierre had waived and withdrawn waivers  so many times by then that Judge Neville drew the inevitable conclusion that St. Pierre had not yet made a "final decision regarding his waiver of appeals." The second problem relates to the inconclusive nature of the evidence on which the Illinois Supreme Court relied when it decided that the May 2 letter was the "final decision," and that the May 3 letter was to be disregarded. No later than the time when it was conducting the deliberations that resulted in the May 24 order, it knew that it had not received an unequivocal waiver from St. Pierre. And yet it arbitrarily chose to treat the May 2 letter as the dispositive document and to disregard the May 3 letter. The third problem is a more subtle one. Both the competency hearing and the subsequent orders from the state trial and supreme courts demonstrate how difficult in these circumstances it was to keep separate the question of St. Pierre's competence as an abstract matter and the question whether he had actually waived his rights.

In the final comments it made, the state trial court appears to have been trying to alert the Illinois Supreme Court to two important points: first, St. Pierre had not yet definitively waived his right to his post-conviction proceedings and associated appeals, and second, that through some mechanism or another the Illinois Supreme Court would need to assure itself of the fact that it had a "final" decision, not one more in a series of flip-flops. The first of those two points is unassailable. As St. Pierre's lawyers point out, the only statement St. Pierre made on the record, while he was under oath in court, was "I don't feel like I want to waive my  appeals." Although he said at the same time that he might later change his mind, and in one pro se letter to the Illinois Supreme Court he did so, he never retracted that statement under similarly formal circumstances, in which the court could assure itself that he understood the gravity of the move he was about to make. In fact, even after the competency hearing was over, St. Pierre filed a verified motion to withdraw his previous motions to waive his appeals. 

As the Eighth Circuit pointed out in O'Rourke v. Endell, 153 F.3d 560 (8th Cir. 1998), cert. denied 525 U.S. 1148 (1999), there is an important distinction between the question whether a defendant is competent to waive a right and the question whether a given waiver is knowing and voluntary. Id. at 567. Implicit in the question of whether a waiver is knowing and voluntary is whether a waiver has actually been made. In St. Pierre's case, even if we accept fully the conclusion of the state courts that St. Pierre was competent to waive his rights (though we regard this finding as an extremely close call that we have found unnecessary to confront here), there is still the problem of the second question. The state trial court made it clear that the question of whether St. Pierre had in fact waived his appeal rights fell outside the scope of the hearing it was conducting (despite the fact that the order of the Illinois Supreme Court requiring the hearing specifically had asked the court to decide whether St. Pierre had "made a knowing and intelligent waiver"). There was never any kind of proceeding, formal or informal, at which any court was able to assure itself that St. Pierre's waiver in the May 2 letter satisfied the requirements for a knowing and voluntary waiver and that St. Pierre intended it to be a waiver. The Illinois Supreme Court conducted no inquiry in connection with that letter. Nothing even remotely resembling the kind of procedures that are necessary to assure the validity of a waiver in analogous circumstances, such as the acceptance of a guilty plea, occurred. See Fed. R. Crim. P. 11; Brady v. United States, 397 U.S. 742, 748 (1970); see also Faretta v. California, 422 U.S. 806, 835-36 (1975) (right to counsel); Boles v. Stevenson, 379 U.S. 43, 45 (1964) (per curiam) (voluntariness of confession); Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938) (right to counsel); United States v. Estrada- Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (right to appeal); United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997) (right to jury trial); United States v. Kellum, 42 F.3d 1087, 1097 (7th Cir. 1994) (guilty plea); United States v. Bushert, 997 F.2d 1343, 1350-52 (11th Cir. 1993) (right to appeal sentence); United States v. Wessells, 936 F.2d 165, 168 (4th Cir. 1991) (right to appeal).

  Lest we be misunderstood, we hasten to add that we are not suggesting that the Constitution requires the state to adopt something equivalent to Fed. R. Crim. P. 11 for waivers of appeals or post- conviction proceedings. On the other hand, it is indisputable that the Constitution does require a waiver that literally carries with it life-or-death consequences to be made knowingly and intelligently. See, e.g., Gilmore v. Utah, 429 U.S. at 1013. In Demosthenes v. Baal, supra, the state court held an evidentiary hearing at which it resolved both the question of competence and the question whether Baal had intelligently waived his right to pursue postconviction relief. See 495 U.S. at 733, 735. At that hearing, the court was able to hear and evaluate Baal's own testimony that he did not wish to continue his postconviction hearing and that he understood perfectly what he was doing. Id. at 733.

Here, in contrast, the Illinois Supreme Court had no idea of the circumstances under which St. Pierre wrote the May 2 letter. It took no steps, either itself or with the assistance of further proceedings in the state trial court, to assure itself that St. Pierre was making this decision unequivocally, permanently, voluntarily, and intelligently. Nor did the court reveal why it had apparently decided that the May 2 pro se letter was a knowing, intelligent, and definitive waiver, in the face of St. Pierre's letter written 24 hours later expressing exactly the opposite preference. The last word from St. Pierre in open court had been his statement that he did not wish to waive his rights, which was what prompted Judge Neville to conclude that he had not yet made a final decision. We recognize that at the time the Illinois Supreme Court issued its May 10 order granting St. Pierre's motion to waive further appeals, the record indicates that the court did not yet know about the May 3 letter. However, before it issued its May 24 order, it knew that the factual basis on which it had proceeded for the May 10 order did not reflect the full story, and that the full story showed that St. Pierre had dispatched the May 3 retraction virtually as soon as the May 2 letter was out of his hands. Given the circumstances of this case and the history of St. Pierre's behavior, the acceptance of St. Pierre's May 2 letter as the "final" word does not meet the standards for waiver that the Supreme Court established in Gilmore and in Baal. See Whitmore v. Arkansas, 495 U.S. 149, 165-66 (1990); Drope v. Missouri, 420 U.S. 162, 182-83 (1975); see also Comer v. Stuart, 2000 WL 719454, *6 (9th Cir. 2000) ("Even if the district court finds that [the petitioner] is competent to withdraw this appeal, it must also determine the separate question of whether the purported decision is voluntary."); Mata v. Johnson, 210 F.3d 324, 331 (5th Cir. 2000) (holding if petitioner's competency to waive collateral review is in question, "the court can afford such petitioner adequate due process by [ordering a competency hearing] and, on the record and in open court, questioning the petitioner concerning the knowing and voluntary nature of his decision to waive further proceedings"). And if the waiver was not effective, it cannot serve as the basis of a finding of procedural default for purposes of federal habeas corpus proceedings. See O'Rourke, 153 F.3d at 567-69; Wilkins v. Bowersox, 145 F.3d 1006, 1011-16 (8th Cir. 1998); Johnson v. Cowley, 40 F.3d 341, 344 (10th Cir. 1994); Allen v. Alabama, 728 F.2d 1384, 1388, modified on other grounds on reh'g in part 732 F.2d 858, order corrected by 735 F.2d 1276 (11th Cir. 1984); see also Meeks v. Singeltary, 963 F.2d 316, 320-21 (11th Cir. 1992).

  We are not unsympathetic to the predicament in which both the Circuit Court of Cook County and the Illinois Supreme Court found themselves, in the face of St. Pierre's ceaseless changes of heart. This does not, however, relieve any court of the duty to ensure that a definitive waiver has occurred before it deprives the petitioner of remedies that are available under state law. (Obviously, the state has no obligation to provide appellate or post-conviction remedies, but if it has chosen to do so, due process principles apply to the terms on which these remedies must be furnished or lost. Gilmore itself involved similar post-conviction remedies, and the Supreme Court had no hesitation in holding the state to these fundamental standards.)

  The same problem can arise in federal proceedings, and indeed has arisen here in the way St. Pierre has conducted himself. Although we cannot prescribe rules for the way the state courts handle such matters, we can offer suggestions to our own district courts. In circumstances similar to those we have here, the Eighth Circuit adopted an approach that quickly and efficiently puts an end to endless vacillation and allows resolution of cases. In Smith v. Armontrout, 865 F.2d 1502 (8th Cir. 1988) (en banc), the full court found that Smith, a Missouri state prisoner under a sentence of death, had effectively waived his right to appeal from a district court's judgment denying his petition for a writ of habeas corpus, even though certain next friends tried to persuade the court that it should set aside his waiver and decide the case on the merits. In a separate statement at the end of the opinion, however, the authoring judge, Judge Arnold, had this to say:

The possibility always exists that Mr. Smith may change his mind again. We direct the respondent Armontrout to deliver to Mr. Smith in person a copy of this opinion. If Mr. Smith changes his mind again, we direct the respondent Armontrout to inform the Clerk of this Court at once. The writer of this opinion believes that Smith's petition for habeas corpus, considered on its merits, is not frivolous. If Smith changes his mind about pursuing his remedies, it is my intention to grant a certificate of probable cause and issue a stay of execution, pending determination by this Court of the appeal on its merits.

     Carter argues that his trial counsel were ineffective in two ways: by failing to investigate his background for mitigating evidence, and by consequently failing to introduce at the sentencing hearing the mitigating evidence which proper investigation would have discovered. Carter maintains that his counsel's failure to discover and present such mitigating evidence at sentencing was unreasonable, given that the presentation of mitigating factors would have humanized him before the jury such that at least one juror could have found he did not deserve the death penalty. 

     Under Tennessee law at the time of Carter's trial, no death penalty could be imposed absent an unanimous finding that one of the following statutory aggravating circumstances existed: the murder was committed against a person less than twelve years of age; the defendant was previously convicted of one or more felonies which involved the use or threat of violence; the defendant knowingly created a great risk of death to two or more persons other than the victim during his act of murder; the defendant committed the murder for remuneration; the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; the murder was committed while the defendant was engaged in committing another felony; the murder was committed by the defendant while he was in lawful custody or during his escape from lawful custody; the murder was committed against any peace officer, corrections official, corrections employee or fireman who was engaged in the performance of his duties and defendant knew that the victim was so engaged; the victim was a judge, district attorney, or attorney general; the murder was committed against an elected official due to that official's lawful duties or status; or the murder was part of a mass murder. See Tenn. Code Ann. 39-2-203(i) (1982)(repealed 1989).

     The same law listed eight categories of statutory mitigating circumstances, but noted that these were non-inclusive: no significant history of prior criminal activity; defendant was under the influence of extreme mental or emotional disturbance; victim was a participant in the defendant's conduct or consented to the act; the defendant reasonably believed to have moral justification for his conduct; defendant acted under extreme duress or under the substantial domination of another person; youth or advanced age of the defendant at the time of the crime; or the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication. See Tenn. Code Ann. 39-2-203(j) (1982)(repealed 1989).

     The district court found that trial counsel's failure to investigate, discover, and present mitigating evidence in the face of a probable mandatory death sentence constituted deficient performance under Strickland. However, the district court found that Carter was not prejudiced by these omissions, concluding that the introduction of mitigating evidence by Carter would open the door to any conceivable evidence of bad character in rebuttal.(1)

     In Carter's evidentiary hearing before the Magistrate Judge, he presented evidence of mitigating circumstances that he alleged his trial counsel should have presented at sentencing, including assertions of illegitimacy, extreme childhood poverty and neglect, family violence and instability during childhood, poor education, mental disability and disorder, military history, and positive relationships with step-children, adult family, and friends. We summarize this evidence here.

     The evidence shows that Carter grew up in a poor and troubled household. Carter was the second of Madge Carter's nine children. These children had five different fathers, only one of whom Madge Carter married. One sibling died in a house fire set by one of Madge's live-in boyfriends. Two others died from birth defects as infants. All of the remaining six have criminal records. Carter's mother and sister were both hospitalized in mental health institutions. His grandfather, father, mother, step-father, and brother all suffered from alcoholism, though Carter has never abused alcohol or used illegal drugs. Carter's family was extremely poor during his childhood, with no electricity, running water, or indoor plumbing. The family diet consisted primarily of white beans and cornbread and the children wore used clothing donated by the welfare department. The family never celebrated the children's birthdays, Christmas or other holidays.

     All the evidence demonstrates that Carter's childhood home was violent and unstable. There were frequent fistfights between family members and visitors, excessive drinking, gambling, and consistent manufacture and sale of "homebrew." Carter's mother was beaten by her father, Carter's grandfather, for becoming pregnant with one of Carter's half-siblings; Carter's father, whom his mother never married, physically assaulted her. Carter's sister states that the family never lived in one place more than two years, moving on to avoid the welfare department, and says it was not uncommon for their mother to drink up her welfare check and the children to go hungry.

     Carter's mother was arrested on several occasions for public intoxication, manufacture of moonshine and child neglect. At the age of three, Carter and his then five year old sister were abandoned by their mother for more than a week, subsisting on milk stolen from the neighbors' porches. The welfare department placed the two in a children's home for several weeks. They subsequently lived with their aunt until their mother regained custody a year later.

     Carter suffered seriously from childhood rheumatic fever. He was whipped and beaten as an infant for crying from the illness. Carter also suffered frequent serious breathing problems as a child that led to numerous trips to the emergency room. The records show both childhood and adult head injuries from accidents and fights. Carter was diagnosed with diabetes in 1977, when he apparently was brought to the hospital in a coma.

     Carter received limited schooling at best. The records of the Hamblen County school system show only very sporadic attendance for a few months in the second and sixth grades, and no other educational records were located. There is some evidence to show that Carter attended a portion of the ninth grade when the family lived in Indiana. Carter's IQ tested in the borderline mentally retarded range in 1992, with a score of 79; a Beta IQ test from 1984 showed an IQ of 87, placing Carter in the 19th percentile at the time of his trial.

     In October of 1984, shortly before his trial, a Tennessee Department of Corrections physician recommended that Carter be considered for psychiatric hospitalization and noted that his nerves seemed stretched to the breaking point. Carter was diagnosed as schizophrenic by Tennesse Department of Corrections psychiatrists in 1991. Dr. Pamela Auble, a clinical psychologist, evaluated Carter in 1992 and determined that he had psychotic symptoms involving hallucinations, paranoid delusions, and thought disorders consistent with paranoid schizophrenia or an organic delusional disorder. She noted that Carter had asserted that other people had been controlling his mind, playing audio programs which screamed at him at all times, and that these programs could follow him wherever he went. She also found that he had a history of partial seizures. Dr. Auble stated that although Carter may not have appeared delusional to a lay-person at the time of his trial, a trained professional would have been able to recognize mental compromise and abnormal personality traits in excess of an antisocial personality disorder. Dr. Auble identified several instances prior to November 1984 when Carter was recommended for psychiatric or psychological counseling, received medication for his "nerves," exhibited paranoid ideas or behavior, or suffered hallucinations or delusions. 

     Carter was married twice prior to 1984 and had stepchildren from each marriage. His stepchildren state that their relationships with him were positive. In addition to his stepchildren, Carter had good relationships with several of the other children in his life. These include his niece, Terri Jinks, who was 11 years old in 1984. Ms. Jinks testified that Carter replaced the locks on their door and bought groceries for her after neighbors broke into her mother's apartment and stole their food. He also bought clothes and shoes for Ms. Jinks and sent her cards and photos.

     Carter served for a period of approximately six months in the Indiana National Guard in 1961. He was given an honorable discharge, due at least in part to his low intelligence and inaptitude for the service.

     At the evidentiary hearing, Carter presented this evidence to show mitigating circumstances which he alleged would have influenced the jury to grant a lesser penalty. In light of this evidence, we look to the law on the introduction of mitigating factors at sentencing in capital cases. The Eighth and Fourteenth Amendments to the United States Constitution dictate that the sentencer in a capital case may not be precluded from considering any relevant circumstance as a mitigating factor. See Mills v. Maryland, 486 U.S. 367, 371 (1988). "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." McKoy v. North Carolina, 494 U.S. 433, 442 (1990). "Whatever the cause, . . . the [sentencer's] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence." Id. Mitigating evidence includes "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." Lockett v. Ohio, 438 U.S. 586, 604 (1978). Further, states cannot infringe upon the court's consideration of any relevant circumstance that may deter the imposition of the death penalty. See McClesky v. Kemp, 481 U.S. 279, 306 (1987). The Supreme Court recently noted that "it is undisputed that [the petitioner] had a right - indeed, a constitutionally protected right - to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Williams, 120 S.Ct. at 1513.

     As the exclusion of mitigating evidence potentially undermines the reliability of sentencing determinations, the burden is on the state to prove that the error was harmless beyond a reasonable doubt. See Satterwhite v. Texas, 486 U.S. 249, 258 (1988); Skipper v. South Carolina, 476 U.S. 1, 4 (1986); Chapman v. California, 386 U.S. 18, 24 (1967). The Tennessee Supreme Court has specifically reiterated the importance of the sentencer "hearing evidence about the defendant's background, record, and character and any circumstances about the offense that may mitigate against the death penalty." State v. Cauthern, 967 S.W.2d 726, 738 (Tenn. 1998). 

     It is clear to us that trial counsel's performance was deficient under the first part of the Strickland test. In Williams, the Supreme Court found that trial counsel's representation of the petitioner during the sentencing phase fell short of professional standards when: 

The record establishes that counsel did not begin to prepare for that phase of the proceeding until a week before trial. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood . . . . Had they done so, the jury would have learned that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social service bureau for two years during his parents' incarceration . . . . 

     Counsel failed to introduce available evidence that Williams was "borderline mentally retarded" and did not advance beyond sixth grade in school. 

Williams, 120 S.Ct. at 1514 (internal citations omitted).

     In Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999), this Court noted that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Moreover, in Rickman, this Court found deficiencies so severe as to dispense with the need for a showing of prejudice under Strickland. 131 F.3d at 1157. The Court noted that trial counsel "did not interview any witnesses, conduct any legal research, or obtain and review any records, including those regarding [petitioner's] employment, education, mental health, social services contacts, military service, or prison experience." Id. Further, trial counsel's trial preparation "consisted solely of interviews he conducted with [the petitioner]." Id. Although we note that, unlike Rickman, there was no hostility on the part of trial counsel in this case, we find that Rickman stands for the relevant proposition that the complete failure to investigate, let alone present, existing mitigating evidence is below an objective standard of reasonable representation, and may in fact be so severe as to permit us to infer prejudice.

     In Groseclose v. Bell, this Court considered a Tennessee case in which trial counsel "almost entirely failed to investigate the case; he never, for example, interviewed the crime-incident witnesses or any family members." 130 F.3d 1161, 1166 (6th Cir. 1997). In Groseclose, trial counsel failed to present mitigating evidence during the sentencing stage of the proceedings. Among other things, trial counsel failed to present the defendant's military record, religious and volunteer activities, or experts who could testify about sociological or psychological factors. See id. Under these circumstances, the Court found the representation was objectively unreasonable. See id. at 1170-71.

     In Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997), this Court held that the failure of trial counsel "to investigate and present any mitigating evidence during the sentencing phase so undermined the adversarial process that [defendant's] death sentence was not reliable." Relying on this Court's holding in Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), that counsel provided ineffective assistance where information was not presented to the jury at sentencing because counsel made little attempt to prepare for the sentencing phase, the Austin court found that "given that several of [defendant's] relatives, friends, death penalty experts, and a minister were available and willing to testify on his behalf," failure to present any mitigating evidence "does not reflect a strategic decision, but rather an abdication of advocacy." Austin, 126 F.3d at 849.

     In this case, trial counsel attempted at the evidentiary hearing to excuse their performance by claiming that Carter reacted violently to the idea of a mental health defense; Carter never volunteered any information about his family background or childhood; that there were no indications based on Carter's demeanor to support an argument based on mental defect; and that members of Carter's family were uncooperative. Counsel claimed that they were aware that Carter suffered from diabetes, but based on personal experience with other diabetics, they saw nothing about that condition that would be a credible mitigating factor for Carter. They also stated that Carter did not want to testify at the sentencing hearing. As a result, counsel did not further investigate any non-statutory mitigating factors.

     Trial counsel testified that they were not aware of all the potential non-statutory mitigating evidence outlined above. Beier testified that, had he been aware of them, they would certainly have pursued them in pretrial investigation and, based on the results of that investigation, they would have made an informed decision on whether to offer such evidence at sentencing. Trial counsel testified that they were concerned about opening the door to Carter's substantial criminal record and other bad acts at the sentencing phase.

     In his sentencing phase argument, Beier stressed that counsel's errors should not be held against Carter and presented a general plea for mercy. Although he alluded to Price's credibility and Price's plea to a thirty-five year sentence for second-degree murder, he did not suggest that these were non-statutory mitigating circumstances that should be weighed against any aggravating circumstances found by the jury, nor did he contend that the State had failed to meet its burden of proof to establish an aggravating circumstance. Counsel's theory was that even though the jury had convicted Carter at least in part on the basis of Price's testimony, there remained sufficient doubt about Price's credibility to prevent imposition of the death penalty. Attempting to keep Carter's extensive criminal history away from the jury, counsel argued that Carter was a victim of circumstances created by Price. Despite this theme, counsel did not request jury instructions on residual doubt about the credibility of Price or inequity in the Price and Carter sentences as potential non-statutory mitigating circumstances. Counsel's closing argument filled only six pages of written transcript, which required approximately six and one-half minutes to read aloud, much of it based on a plea to the jury to not hold the errors of Carter's counsel against Carter, and a discourse on the sacredness of all life, illustrated by a story of counsel's attempts to save baby birds who fell out of their nests.

     While we understand the great burdens on appointed trial counsel in capital cases and the often limited financial support they receive for investigation and discovery, justice requires that counsel must do more than appear in court or argue to the jury. Trial counsel here did Carter a disservice by failing to investigate mitigating evidence. While counsel advanced several reasons for adopting their strategy, their reasons do not excuse their deficiency. The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility. We find that reluctance on Carter's part to present a mental health defense or to testify should not preclude counsel's investigation of these potential factors. Under the American Bar Association guidelines for appointed death penalty defense counsel, "[t]he investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered." American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1.c (1989). We agree, therefore, with the district court's conclusions that defense counsel made no investigation into Carter's family, social or psychological background and that the failure to do so constituted representation at a level below an objective standard of reasonableness. 

In Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963), the Supreme Court found presumed prejudice where the petitioner's twenty- minute videotaped confession to the robbery, kidnaping, and murder at issue in the case was broadcast three times to tens of thousands of people (in a community of only 150,000). And in Kemp, 778 F.2d 1487, this court found presumed prejudice where the petitioner presented the court with over 150 newspaper articles written about his case before or during his trial (one of which included a statement by the county's chief law enforcement officer that he would like to "precook" the petitioner before he was electrocuted), media broadcast transcripts, and witness statements indicating that the case was a main topic of conversation for an extended period of time. See also Manning, 378 So. 2d at 275 (finding presumed prejudice where "[t]he sheriff's department and state attorney's office released to the press their versions of the facts and circumstances in the shooting incident . . .[,] the prosecutor released to the press the names of the primary witnesses to the crime[,] [t]he prosecutor told the local newspaper the substance of the intitial testimony given to the state attorney's office by this alleged eye-witnesses . . .[, and] the sheriff discussed evidence gathered during the investigation, including in his statements conclusions [sic] implying a total lack of justification on behalf of the appellant in the shootings.")

When one compares these precedents to the cases at hand, it becomes obvious that Meeks has not carried his burden of demonstrating presumed prejudice. See Mills, 63 F.3d at 1010-11 (fifteen newspaper articles and testimony that petitioner's involvement in the murder was a public topic of conversation not sufficient to establish presumed prejudice); De La Vega, 913 F.2d at 865 (330 newspaper articles not sufficient to establish presumed prejudice because they were "largely factual in nature and could not have created the sort of inflamed community atmosphere which courts deem presumptively prejudicial"). Further, "[o]ur conclusions regarding the publicity are borne out in the voir dire." Mills, 63 F.3d at 1012. No jurors in either Walker or Thompson were dismissed on account of bias against Meeks. In the Walker voir dire, two jurors were dismissed because they were opposed to capital punishment such that they could not convict Meeks if they knew that it was possible that he might receive the death penalty during the guilt phase; one was dismissed because he was familiar with Hardwick, and so would have been uncomfortable sitting in judgment of Meeks; one because he was biased in favor of Meeks; and one because he knew Lloyd Walker. In the Thompson voir dire, four jurors were dismissed because they were opposed to capital punishment such that they could not convict Meeks if they knew that it was possible that he might receive the death penalty during the guilt phase; two were dismissed because of family circumstances or financial burden; two because they were biased in favor of Meeks; and one because he knew Chevis Thompson. 

Meeks argues that even if the evidence of pretrial publicity, alone, is insufficient, there was a pervasive racial bias against African-Americans in the community that combined with the pretrial publicity to either actually or presumptively prejudice the juries in his cases. As an initial matter, we question whether Meeks has established that there was a pervasive racial bias in Perry, Florida during the time that he was tried and convicted of the Walker and Thompson murders. Meeks presented the district court with several affidavits opining that Perry was a racially divided community in the mid- 1970s, some newspaper articles about a racial incident that occurred at the town's high school, and about Klan activity in the area, and trial transcripts indicating that two witnesses in Walker and one witness in Thompson used racially inappropriate terms to identify Meeks. The district court found this evidence to be "too thin a reed to support a claim of pervasive racial animus."

However, even if Meeks has established that racism existed in Perry, Florida at the time he was convicted, his claim of prejudice must still fail because he has entirely neglected to show that racial bias played any part in his convictions in either of his specific cases. Cf. McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S. Ct. 1756, 1767, 95 L. Ed. 2d 262 (1987) (holding that to establish that petitioner's death sentence was rendered in violation of the Equal Protection Clause, petitioner "must prove that the decisionmakers in his case acted with discriminatory purpose;" claim failed because petitioner "offer[ed] no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence"). There is no evidence that any of the jurors in either the Walker or Thompson trials entertained notions that Meeks should be convicted because he is African-American. There is no allegation that the prosecutor exercised peremptory challenges on the basis of race in violation of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); that African-Americans were excluded from either the grand or petit juries, see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); or that the prosecutor made racially biased prosecutorial arguments, see Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).Meeks has presented us with no newspaper accounts of the murders that even identified him as an African-American. In short, there is no evidence connecting any general racial bias in the community to any alleged error in either of Meeks' trials. 

Because we find that Meeks has failed to bring forth evidence of pretrial publicity and racial bias sufficient to establish either actual or presumed prejudice, we hold that there is no reasonable probability that the trial court would have granted a motion for change of venue, even if Meeks' counsel had presented such a motion to the court. Therefore, because Meeks has failed to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, Meeks has failed to satisfy the prejudice prong of Strickland's ineffective assistance analysis on this claim. 

We begin with Fisher's assertion that the North Carolina state court did not reject his constitutional challenge to the jury instruction on the basis of an "independent and adequate" state law ground. At the outset, we point out that N.C. Gen. Stat. § 15A-1419(a)(3) is generally an independent and adequate state law ground for finding that a claim has been procedurally defaulted. See Williams v. French, 146 F.3d 203, 209 (4th Cir. 1998) (holding that "§ 15A-1419(a)(3) is an independent and adequate state ground" for a state court's finding of procedural default), cert. denied, 119 S. Ct. 1061 (1999). Fisher does not seriously contend otherwise. Rather, he asserts that the statute cannot operate as an "independent and adequate" state law ground for procedural default in his case because, pursuant to N.C. Gen. Stat. § 15A-2000(d)(1) and (2), the North Carolina Supreme Court was required to conduct an "automatic review" of his death penalty which would have encompassed the claim he now specifically raises. In particular, Fisher points to the North Carolina statutory provisions which required the North Carolina Supreme Court (1) to "consider the punishment imposed as well as any errors assigned on appeal," N.C. Gen. Stat. § 15A-2000(d)(1); and (2) to overturn the death sentence if the court determined that "the record [did] not support the jury's findings of any aggravating circumstance or circumstances," that "the sentence of death was imposed under the influence of passion, prejudice, or  any other arbitrary factor," or that "the sentence of death [was] excessive or disproportionate to the penalty imposed in similar cases," N.C.Gen. Stat. § 15A-2000(d)(2). As a result of these provisions, the argument goes, the North Carolina state court was statutorily required to review the substance of the constitutional challenge to the (e)(9) aggravating circumstance which Fisher now pursues and, thus, the review was not independent of federal law. We disagree.

In Mu'Min v. Pruett, 125 F.3d 192 (4th Cir. 1997), we rejected a similar claim that the Virginia Supreme Court implicitly considered and rejected a habeas applicant's constitutional claims during its mandatory review of the applicant's death sentence because the mandatory review procedures only required the Virginia Supreme Court to determine "whether the imposition of the death penalty was influenced by improper considerations," and not to "examine the record for constitutional errors not specified on appeal." Id. at 197; see Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir. 1995) (holdingthat South Carolina's prior practice of in favorem vitae review did not preserve otherwise defaulted claims); see also Bennett v. Angelone, 92 F.3d 1336, 1345 n.6 (4th Cir. 1996) (noting that "the spirit of Kornahrens is counter" to the notion that the Virginia mandatory review procedure preserves claims not raised on direct appeal). Like Virginia's mandatory review provision, N.C. Gen. Stat. § 15A-2000(d) imposes no requirement that the court search the record for errors not pursued on direct appeal. Accordingly, we conclude that North Carolina rejected Fisher's challenge to the jury instruction on the basis of the adequate and independent state procedural rule set forth in N.C. Gen. Stat. § 15-A-1419(a)(3).

Fisher next argues that, even though he procedurally defaulted the claim in state court, we may nevertheless review its merits on federal habeas because he can demonstrate cause and prejudice to overcome the default. Specifically, he asserts that his counsel was constitutionally ineffective in failing to pursue a challenge to the "heinous, atrocious, or cruel" jury instruction on direct appeal to the Supreme Courtof North Carolina. We disagree.

The Sixth Amendment right to effective assistance of counsel extends to require such assistance on direct appeal of a criminal conviction. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Therefore, Fisher can demonstrate cause for his procedural default based on ineffective assistance of counsel if he can satisfy the oft-recited test setforth in Strickland v. Washington. See Coleman, 501 U.S. at 753-54. As with all ineffectiveness claims, Fisher must demonstrate that his "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have  been different." Strickland, 466 U.S. at 688, 694. In reviewing a claim that appellate counsel was ineffective, we accord counsel the "presumption that he decided which issues were most likely to afford  relief on appeal," Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993), and we do not obligate counsel to assert all non-frivolous issues on appeal, see Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir. 1989). Rather, "[w]innowing out weaker arguments on appeal and focusing on those more likely to prevail, far from evidence of incompetence, is the hallmark of effective appellate advocacy." Id.  (internal quotation marks omitted).

It has long been settled that a state's capital sentencing scheme may not allow for the imposition of the death penalty in an arbitrary and capricious manner. See Furman v. Georgia, 408 U.S. 238 (1972). The state "has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty," which includes a responsibility to "define the crimes for which death may be the sentence in a way that obviates `standardless [sentencing] discretion.'" Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976) (alteration in original). The "capital sentencing scheme must, in short, provide a `meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.'" Id. (quoting Gregg, 428 U.S. at 188) (alteration in original).

In the case of statutory aggravating circumstances in a capital punishment scheme, a circumstance may be so vague as to provide no such meaningful basis for distinguishing a death penalty case from other murders and, thereby, run afoul of the Eighth Amendment prohibition against the imposition of cruel and unusual punishment. Such "[c]laims of vagueness . . . characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman." Maynard v. Cartwright, 486 U.S. 356, 361-362 (1988) (holding that Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague); see also Godfrey, 446 U.S. at 428-29 (holding that Georgia's "outrageously or wantonly vile, horrible or inhuman" circumstance was also invalid).  Thus, the Supreme Court has "insisted that the channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action." Maynard, 486 U.S.at 362.

A statutory circumstance that is alone too vague to provide meaningful guidance to the sentencer may be accompanied by a limiting instruction which does provide sufficient guidance. See Shell v. Mississippi, 498 U.S. 1, 1-3 (1990) (holding that a limiting instruction which defined the terms "heinous, atrocious, or cruel" in equally vague language was not constitutionally sufficient); Walton v. Arizona, 497 U.S. 639, 653 (1990) (noting that in Maynard and Godfrey, "the jury either was instructed only in the bare terms of the relevant statute or in terms nearly as vague"). Consequently, when reviewing a state court's application of a statutory aggravating circumstance, we "must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer." Walton, 497 U.S. at 654. If so, we must then proceed "to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer." Id.

With these principles in mind, we turn to North Carolina law and the instruction given by the trial court at the conclusion of the sentencing phase of Fisher's trial. Under North Carolina law, a person may be sentenced to death if the jury finds, as an aggravating circum-stance, that "[t]he capital felony was especially heinous, atrocious, or cruel." 15A N.C. Gen. Stat. § 15A-2000(e)(9). Fisher's jury was presented with this statutory, aggravating circumstance for consideration, along with the following limiting instruction:

The next issue is "the capital felony was especially heinous, atrocious or cruel." Now in this context heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile and cruel means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others. However, it is not enough that this murder be heinous, atrocious or cruel as these terms have just been defined. This murder must have been especially heinous, atrocious or cruel and not every murder is especially so. For this murder to have been especially heinous, atrocious or cruel, any brutality which wasinvolved in it must have exceeded that which is normally present in any killing or this murder must have been. . . a conscienceless or pitiless crime which was unnecessarilytorturous to the victim."  (Transcript, Vol. IV. at 96). At the time of Fisher's appeal to the North Carolina Supreme Court, this limiting instruction, taken from the North Carolina Pattern Jury Instructions, had already been sub-jected to a vagueness challenge before that court. See State v. Syriani, 428 S.E.2d 118, 140-41 (N.C. 1993). The court rejected the challenge, holding that "[b]ecause the[ ] jury instructions incorporate narrowing definitions adopted by this [c]ourt and expressly approved by the United States Supreme Court, or are of the tenor of the definitions approved, we reaffirm that the[ ] instructions provide constitutionally sufficient guidance to the jury." Id. at 141.

Relying primarily upon Maynard, Fisher now raises the identical challenge in his federal habeas application, asserting that North Carolina's "heinous, atrocious, or cruel" aggravating circumstance is unconstitutionally vague, that the limiting instruction does not sufficiently channel the jury's discretion in recommending the death penalty, and that his appellate counsel was constitutionally deficient in failing to pursue this challenge before the North Carolina SupremeCourt on direct appeal.

Although Fisher is correct in his assertion that North Carolina's "especially heinous, atrocious, or cruel" aggravating circumstance, standing alone, is unconstitutionally vague, see Maynard, 486 U.S. at 364 ("To say that something is `especially heinous' merely suggests that the individual jurors should determine that the murder is more than just `heinous,' whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is `especially heinous.'"); see Smith v. Dixon, 14 F.3d 956, 974 (4th Cir. 1994) (en banc) (recognizing that North Carolina's "heinous, atrocious, or cruel" aggravating circumstance requires a limiting construction), this does not end our inquiry. In its prior precedents, the Supreme Court has had occasion to consider the constitutionality of certain limiting constructions of the "especially heinous, atrocious, or cruel" aggravating circumstance. For example, the Court has recognized that a construction limiting the phrase to crimes involving "torture or serious physical abuse" provides adequate guidance to the sentencer, Maynard, 486 U.S. at 365, as does a construction requiring a finding that the murder was a "conscienceless or pitiless crime which [was] unnecessarily tortuous to the victim," Proffitt v. Florida, 428 U.S. 242, 255-56 (1976) (internal quotation marks omitted). The Court has disclaimed, however, the suggestion that "some kind of tor-ture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable." Maynard, 486 U.S. at 365 (emphasis added). Rather, as stated previously, the question is whether the state court's limiting construction "provide[s] some guidance to the sen-tencer," such that their discretion is not boundless. Walton, 497 U.S. at 654.

Fisher's jury was also given a limiting instruction which, after defining the individual terms of the aggravating circumstance, emphasized to the jury that not every murder is "especially heinous, atrocious, or cruel" and that, in order to find this aggravating circumstance, the jury must further conclude that any brutality which was involved in the murder must have exceeded that which is normally present in any killing or that the murder must have been a conscienceless or pitiless crime which was unnecessarily torturous to the victim. Thus, the jury was not left with the bare terms of the statute, or with definitions equally vague. Rather, it was provided with a limiting construction which required the jury to make additional findings in order to distinguish Angela's murder from all others and, therefore, provided the meaningful guidance required to ensure that Fisher's death sentence was not imposed in an arbitrary or capricious manner.

We are satisfied that it was not, and that the limiting instruction served its purpose.

At a minimum, however, we are confident that Fisher's appellate counsel was not constitutionally deficient for failing to challenge the instruction on direct appeal, particularly given the North Carolina  precedent already rejecting such a claim, see Syriani, 428 S.E.2d at 141, and that, given the gruesome facts underlying Angela's murder, there is no "probability sufficient to undermine our confidence that if his attorney had presented this claim the result of the proceeding would have been [different]," Smith, 14 F.3d at 974. Accordingly, Fisher has also failed to demonstrate cause for his procedural default of the heinousness claim and is not entitled to habeas relief in the federal courts. See Coleman, 501 U.S. at 753-54.

Penry first argues that the jury instructions given during the punishment phase of his trial did not allow the jury to consider and give effect to mitigating evidence regarding his alleged mental retardation and severe child abuse; thus, the instructions violated the Supreme Court's directive in Penry v. Lynaugh, ("Penry I"). Penry explains that jurors could only give effect to his mitigating evidence, as the Supreme Court required in Penry I, and grant him a life sentence if they found that the evidence fit under one of the three special questions required by Texas law. In Penry I, Penry's federal habeas challenge to his first trial and conviction, the Supreme Court found that, under the trial court's instruction, none of the three special statutory questions allowed the jury to give effect to Penry's mitigating evidence. At Penry's retrial, however, the trial court supplemented the instruction it gave in Penry I. The court instructed the jury to consider any mitigating circumstances supported by the evidence. The instruction stated, in part:
 

[W]hen you deliberate on the questions posed inthe special issues, you are to consider mitigating circumstances, if any, supported by the evidence…. 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…any mitigating circumstances…you must decide how much weight they deserve, if any, and…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 one of the special issues.

Penry correctly contends that the instruction still required the jury to give a negative answer to one of the three special issues in order for Penry to receive a life sentence. Penry argues that because childhood abuse and mental retardation do not necessarily fit within the scope of any of the special issues, this instruction did not allow the jury to give effect to these mitigating circumstances. However, on direct appeal, the Texas Court of Criminal Appeals found that the instruction satisfied the requirements of Penry I, and allowed the jury to give effect to those mitigating circumstances.

We agree with the district court that the Texas Court of Criminal Appeals' holding that the challenged instruction was constitutional was not an unreasonable application of clearly established law, namely Penry I. The instruction directed the jury to consider and give effect to any mitigating circumstances supported by the evidence by answering "no" to one of the special issues if they felt a life sentence was appropriate. This instruction satisfied the deficiency in the trial court's instruction identified in Penry I: "[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."

We are not writing on a clean slate on this issue. This court approved identical jury instructions on this point in Miller and Emery v. Johnson. In Miller, we concluded that the defendant failed to show that the same instructions given by the trial court in this case violated Penry I. We rejected the argument that the jury was prevented from considering the mitigating evidence. "Miller's jury, unlike Penry's, was instructed that it should consider mitigating evidence when deliberating on the special issues....[It] 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."

In the alternative, Penry argues that the jury charge was a "nullification instruction" and was therefore unconstitutional insofar as it instructed jurors to violate their oaths by rendering an untruthful answer to one of the special issues if they wished to give effect to the mitigating evidence presented in this case. We disagree. The jury was not told to disregard the law; rather, it was instructed on how to obey the law, as explained by the Supreme Court in Penry I. 

Harjo v. Gibson, No. 99-7041 (10th Cir. 06/21/2000) (unpublished) Habeas denied on issues including  HAC and IAC ((1) counsel failed to adequately investigate and present additional mitigating evidence; (2) counsel failed to request additional expert assistance; (3) counsel failed to object to improper prosecutorial conduct.

Petitioner argues the evidence was insufficient to support the heinous, atrocious, or cruel aggravator because the evidence did not show Mrs. Porter consciously suffered torture or serious physical abuse. The Oklahoma Court of Criminal Appeals determined sufficient evidence existed to support this aggravator: "[petitioner] strangled and suffocated Mrs. Porter with his bare hands. She sustained scratches and bruises on her face, chest, arms and vaginal area. Her lower denture was displaced; her windpipe crushed. Her pubic hair was singed. Mrs. Porter struggled prior to her death." Harjo, 882 P.2d at 1078. 

"Under Oklahoma law, the torture or serious physical abuse required by the properly narrowed [heinous, atrocious, or cruel] aggravator may include infliction of great physical anguish or extreme mental cruelty." Jones v. Gibson, 206 F.3d 946, 952 (10th Cir. 2000). "Conscious physical suffering of the victim must occur before death and any extreme mental distress must result from the petitioner's intentional acts." Id. at 952-53. Conscious physical suffering before death may be proved by statements of the petitioner or any other evidence showing the victim remained alive and conscious during the attack. SeePowellv. State, 906 P.2d 765, 782 (Okla. Crim. App. 1995). Mental torture must produce mental anguish in addition to what accompanies the underlying killing. SeeJones, 206 F.3d at 953. Analysis focuses on the petitioner's acts and the level of tension created by those acts. See id. Although Oklahoma law does not clearly establish the length of time a victim must be terrorized before there is mental torture, factors such as anticipation of harm and lack of provocation can establish mental torture. Seeid. at 953-54. 

Reviewing all of the evidence in the light most favorable to the State, we conclude a rational factfinder could have found the existence of this aggravator beyond a reasonable doubt. SeeLewis v. Jeffers, 497 U.S. 764, 780-82 (1990). Although the record does not expressly establish when Mrs. Porter lost consciousness, petitioner stated in his confession that she struggled. This shows that she was conscious during the attack and anticipated harm and that death was not instantaneous. SeeJones, 206 F.3d at 954. We therefore conclude the Oklahoma Court of Criminal Appeals' determination was reasonable. 

The first claim is a competency to be executed claim. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986). Realizing that our decision in In re Medina, 109 F.3d 1556 (11th Cir. 1997), forecloses us from granting him authorization to file such a claim in a second or successive petition, Provenzano asks us to revisit that decision in light of the Supreme Court's subsequent decision in Stewart v. Martinez-Villareal, 118 S.Ct. 1618 (1998). Under our prior panel precedent rule, see United States v. Steele, 147 F.3d 1316, 1317 - 18 (11th Cir. 1998) (en banc), we are bound to follow the Medina decision. We would, of course, not only be authorized but also required to depart from Medina if an intervening Supreme Court decision actually overruled or conflicted with it. See Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996); see also United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997). 

Stewart v. Martinez-Villareal does not conflict with Medina's holding that a competency to be executed claim not raised in the initial habeas petition is subject to the strictures of 28 U.S.C. § 2244(b)(2), and that such a claim cannot meet either of the exceptions set out in that provision. See In re Medina, 109 F.3d at 1564 - 65. The Supreme Court did grant certiorari in Martinez-Villareal in order to settle what appeared to be a conflict between our Medina decision and the Ninth Circuit's decision in that case. See 118 S.Ct. at 1620. However, it turned out that the conflict was more apparent than real, because in that case the petitioner had raised his competency to be executed claim in the first federal habeas petition he had filed only to have the district court dismiss it without prejudice as premature. The Supreme Court recognized that the situation in Martinez-Villareal was not the Medina situation, stating:

This case does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner's initial habeas application. Therefore, we have no occasion to decide whether such a filing would be a "second or successive habeas corpus application" within the meaning of AEDPA.

Id. at 1622 n.*. In other words, the Supreme Court in Martinez- Villareal had no occasion to decide whether our Medina decision is correct. That being true, we are bound by the circuit precedent of the Medina case, and we follow it.

McClain v. Prunty, No. 99-55423 (9th Cir. 07/05/2000) Habeas relief granted on Batson claims. "The state trial court's refusal to "second-guess " the prosecutor's reasons for exercising a peremptory challenge against JH was "contrary to clearly established Federal law." 28 U.S.C. S 2254(d)(1). Furthermore, McClain has shown by "clear and convincing evidence" that the state trial court's finding that the prosecutor did not purposefully discriminate in exercising peremptory challenges against Jurors SR and JH, "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. 2254(d)(2).

Washington v. Smith, No. 99-2383 (7th Cir. 07/06/2000) Writ granted on IAC.  "[T]he mere fact that some
negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced.  Evaluated individually, these errors may or may not have been prejudicial to Washington, but we must assess "the totality of the omitted evidence" under Strickland rather than the individual errors. See Williams, 120 S. Ct. at 1515. Considering the "totality of the evidence before the . . . jury," Strickland, 466 U.S. at 695, Engle's unprofessional errors were prejudicial to Washington. Engle did not just botch up one witness or one argument or one issue--he repeatedly demonstrated a lack of diligence required for a vigorous defense. Engle's performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced  a just result." Strickland, 466 U.S. at 686. All Washington needed to do was establish a reasonable doubt, and having additional, credible alibi witnesses would have covered a lot of ground toward that goal. The Wisconsin Court of Appeals looked at the mass of evidence that Washington could have produced but for Mr. Engle's errors, and it unreasonably concluded  that its absence did not cause prejudice. Although questions of this kind do not lend themselves to the mathematical certainty of an acquittal, the proper application of Strickland should have left the Wisconsin Court of Appeals with the belief that acquittal was reasonably probable if the jury had heard all of Washington's evidence. Therefore, we find that-- in addition to being "contrary to" Strickland-- the decision of the Wisconsin Court of Appeals "involved an unreasonable application of" Strickland's prejudice component to the facts of this case."

In re Justices of the Superior Court Department of the Massachusetts Trial Court, No. 00-1168 (1st Cir. 07/03/2000) "The Commonwealth of Massachusetts, in name of the Justices of the Superior Court of the Massachusetts Trial Court, asks us to exercise our mandamus authority under the All Writs Act, 28 U.S.C. § 1651, to order the district court to decide or otherwise dispose of a pretrial petition for habeas corpus relief which the Commonwealth claims is interfering with state criminal proceedings." Mandamus issued.

Williams v. Cain, No. 99-30759 (5th Cir. 06/29/2000) "Williams's application for supervisory review missed the Louisiana Supreme Court filing deadline by more than fourteen months. Williams ceased to have a "properly filed application" for post-conviction relief pending in the Louisiana courts when he failed timely to apply to the Louisiana Supreme Court. Williams's federal petition is time-barred. "

Johnson v. Cain, No. 99-30774 (5th Cir. 06/19/2000) Relief granted below on two issues. "Finding the admission of Johnson's confession harmless, we reverse the district court on that issue.  Further, finding that the district court incorrectly determined that the Cage issue was not procedurally barred, we remand with instructions to allow the petitioner an opportunity to show cause and prejudice with respect to the procedural bar."

Dilworth v. Johnson, No. 98-41293 (5th Cir. 06/19/2000) District court improperly counted time that was tolled for purposes of determining the AEDPA's statute of limitations.

Rockwell v. Yukins, No. 99-1250 (6th Cir. 06/29/2000) Habeas relief vacated  where petitioner amended in an unexhausted claim, eventhough relief would have been granted without the amended claim.

Mackey v. Dutton, No. 99-5352 (6th Cir. 06/28/2000) "Mackey raises two related arguments. First, he contends that the state trial court denied him due process by its "restrictive rulings on the issue of insanity," including its denial of his motion for an independent psychiatric examination and its refusal to grant a continuance to secure the attendance of his expert witness. Second, Mackey claims that the trial court's denial of an independent psychiatric examination and its refusal to hold a hearing on the issue of his competency to stand trial violated his right to due process."  Relief denied.

Horton v. United States, No. 98-3481 (7th Cir. 06/29/2000) The  one-year period for the AEDPA runs from the denial of cert and not the petition for rehearing from the denial of cert. 

Lewis v. Miller, No. 99-1507 (7th Cir. 06/30/2000) Habeas denied on claims " police officers violated his Fifth Amendment right to remain silent and to have counsel present when they continued to interrogate him after he indicated that he wanted to remain silent and seek the help of a lawyer; and his confession was unconstitutionally coerced."

Walker v. O'Brien, No. 96-4010 (7th Cir. 06/22/2000) "The cases before us today, which we consolidated for purposes of oral argument and this opinion, raise once again the question of how the statutory gatekeeping mechanisms work together: in particular, whether the fee payment and other rules of the PLRA apply to requests for federal collateral relief, whether under 28 U.S.C. sec.. 2241, 2254, or 2255."

Juarez v. State of Minnesota, No. 99-2755 (8th Cir. 06/29/2000)  Admission of defendant's statement about a lawyer during his custodial interrogation was harmless beyond a reasonable doubt, even using stricter standard under Chapman v. California, and did not constitute a structural error. 

Morris v. Dormire, No. 99-2904 (8th Cir. 07/03/2000) Denial of petition for writ of habeas corpus is affirmed. District court did not abuse its discretion in failing to appoint counsel. Defendant did not demonstrate that state courts resolution of insufficient evidence claim satisfies standard for habeas relief; conflict-of interest claim was defaulted; and claim of actual innocence not established. District court did not abuse its discretion in denying an evidentiary hearing. 

Sublett v. Dormire, No. 99-1893 (8th Cir. 06/28/2000) Prosecutor's closing argument urging jury to send a message by imposing a long sentence, while improper, did not require a mistrial, and court did not err in denying habeas relief. 

United States v. Dowdle, No. 99-3895 (8th Cir. 06/30/2000)  State judge's relinquishment of state custody is ineffective, as relinquishment is an executive, not judicial function. Order directing defendant into custody of Bureau of Prisons is reversed. 

McAlphin v. Morgan, No. 99-4112 (8th Cir. 07/05/2000) Dismissal without prejudice of civil rights action for failure to exhaust administrative remedies was proper because plaintiff did not demonstrate he had exhausted claim; district court did not abuse its discretion in denying motion to amend, in denying preliminary injunction, and in denying motion for default judgment. 

Romov v. Oklahoma Department of Corrections, No. 99-6045 (10th Cir. 06/19/2000) Petition denied on timeliness grounds.

Franklin v. Hightower, No. 98-6684 (11th Cir. 06/19/2000) Habeas denied on procedural default grounds.  Petition raised "The petition asserted three challenges to the 1982 convictions: (1) the circuit court
violated Franklin's due-process rights by permitting him to plead guilty without being informed of the charges against him; (2) the indictment was void because it was not signed by the grand jury foreperson, and the circuit court therefore lacked jurisdiction; and (3) his counsel was ineffective for failing to address these irregularities."

Nyland v. Moore, No. 99-2402 (11th Cir. 06/30/2000) "In sum, we conclude that the district court correctly declined to relate Nyland's instant § 2254 petition back to the date his first § 2254 petition was filed, but erred in failing to find that Nyland's state motions for post-conviction relief were pending until the mandates issued. We remand to the district court to determine whether Nyland's second state motion for post conviction relief was properly filed, and to recalculate, in light of its determination, whether Nyland's instant § 2254 petition was timely file."

McIntyre v. Williams, No. 99-10989 (11th Cir. 06/30/2000) "McIntyre argues that the substitution of judges violated his rights under the Sixth and Fourteenth Amendments. This violation, he argues, was a structural defect not subject to harmless error analysis and, therefore, required automatic reversal. Alternatively, he argues that he was prejudiced by the substitution." Relief denied.

Hepburn v. Moore, No. 99-10110 (11th Cir. 06/19/2000) Habeas clock runs from resentencing and not original sentence.
 
 

Papantony v. Hedrick, No. 99-2361 (8th Cir. 06/21/2000)  Court would construe habeas petition allegations concerning involuntary administration of antipsychotic drugs as a Bivens action for damages resulting from an alleged violation of substantive due process rights; however, allegations must fail as the defendants are immune from suit because a pre-trial detainee has no clearly established constitutional right not to be forcibly administered antipsychotics so as to render him competent for trial. 

Barron v. Keohane, No. 99-2201 (8th Cir. 07/05/2000) Prison officials violated inmate's First Amendment right to free exercise of religion when they failed to accommodate inmate's religious beliefs by providing him with food in his cell for his Sabbath meal. Refusal to accommodate religious dietary needs was not reasonably related to legitimate penological interests.

Harris v. Garner, No. 98-8899 (11th Cir. 06/27/2000) PLRA "applies to lawsuits that are
filed while the plaintiff is a confined prisoner but which are not decided until after he is released from confinement."

Metheny v. Hammonds, No. 99-10646 (11th Cir. 07/07/2000) "[T]he statute [eliminating parole eligibility] and the punishment it imposes have been unchanged since enactment in 1953; the application of the statute to Plaintiffs does not violate Due Process or the Ex Post Facto Clause. "

Moran v. Sondalle, No. 00-1190 (7th Cir. 06/22/2000) In this consolidated action, the fine line between the definitions of habeas and § 1983 claims are reexamined in light of the modifications to both made by the AEDPA and PLRA.
 
 

As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

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