This week's edition offers two capital cases. In Spreitzer v. Schomig, a Seventh Circuit panel finds technical reasons (procedural default chiefly) in order to avoid addressing the merits of the claims presented. In a second case, Young v. Hayes, the Eighth Circuit examines the Supreme Court's  holding of  Ohio Adult Parole Authority v. Woodard and grants a stay.

In depth this week offers a controversial editorial that originally appeared in  the Philadelphia Inquirer addressing civil disobedience and the death penalty.

 
Spreitzer argues that his claims should not be barred for failure to exhaust his administrative remedies. He contends that the Illinois Supreme

Court was fairly presented with the question of the competence of sentencing counsel because he raised this issue in his petition for post- conviction relief, and he believes that the Illinois Supreme Court reviewed the decision of the post-conviction trial court in its dismissal of the claim by finding that the trial court's dismissal was based on waiver and res judicata. According to Spreitzer, both parties briefed the question whether the district court ruledcorrectly on the remaining claims at the post- conviction proceedings, and the Illinois Supreme Court's affirmance of the post-conviction court's dismissal thus constitutes a fair presentment of these claims. 

Spreitzer's argument misstates the proceduralposture under which the Illinois Supreme Court analyzed the post-conviction court's holding. In his opening brief to the Supreme Court, Spreitzer argued that his post-conviction counsel failed to provide effective representation because he did not attach appendices containing new evidence to Spreitzer's post-conviction petition and asked that the Supreme Court remand the claim to post- conviction court for appointment of new counsel. The state responded that this failure could not constitute prejudice because the post-conviction court based its holdings on these issues on waiver or res judicata, rather than on a failure to append additional evidence, and for this reason, it was unnecessary to remand to appoint new counsel. Spreitzer answered in his reply brief that the post-conviction court's findings of waiver and res judicata were improper because Spreitzer's post-conviction claims were based on evidence not within that court's record. The Illinois Supreme Court, in reviewing Spreitzer's ineffective assistance of counsel claim, first noted that "[t]he record in this case shows that [Spreitzer's] post-conviction counsel consulted with him, examined the record and conducted an investigation," meeting all the Illinois requirements for effective post-conviction counsel. Spreitzer II, 572 N.E.2d at 936. The court also noted that post-conviction counsel argued all the counts raised in Spreitzer's pro se complaint, but because "[t]he reasons for the trial court's dismissal . . . were res judicata and waiver . . . [a]n additional investigation, or addition of supporting documents to the record, would have been irrelevant to the issue of whether or not the allegations in the petition were res judicata or waived." Id. For this reason, the Illinois Supreme Court found that Spreitzer had failed to prove that his post- conviction counsel's actions had prejudiced him. See id.

Contrary to Spreitzer's contentions, the Illinois Supreme Court was not presented with the issue of sentencing counsel's effectiveness during the course of this interchange. The issue briefed to the court by the parties was the effectiveness of post-conviction counsel, not sentencing counsel. The court held that post- conviction counsel was effective and, alternatively, that Spreitzer had not shown prejudice caused by his representation. In its finding that no prejudice had been shown, theSupreme Court noted that the hearing court based its dismissal on waiver and res judicata. However, the Supreme Court did not review the hearing court's decision because the substance of its decision, whether Spreitzer should have raised claims of ineffective sentencing counsel sooner, was irrelevant to the question of prejudice caused by post-conviction counsel. Moreover, the Illinois Supreme Court did not reach the question whether the post-conviction court correctly applied the waiver doctrine. 

The only presentment of the question of sentencing counsel's effectiveness came in Spreitzer's reply brief as a part of his argument that the post-conviction court erred in applying the waiver doctrine, which in turn was argued in the context of Spreitzer's contention that post- conviction counsel was ineffective. Illinois Supreme Court Rule 341(e)(7) deems arguments presented for the first time in a reply brief waived, see People v. Brown, 660 N.E.2d 964, 970 (Ill. 1995). Although Supreme Court Rule 341(g) allows appellants to respond in their reply brief to any question raised in appellee's answer, see Oliveira v. Amoco Oil Co., 726 N.E.2d 51, 56 (Ill. 2000), the state never raised the question of the merits of the post-conviction court's decision in its briefing. The state merely noted that the court's grounds for ruling did not allow a finding of prejudice. For this reason, the Illinois Supreme Court was never directly presented with the question whether Spreitzer's original sentencing counsel provided effective representation, or even whether the post- conviction court erred in dismissing these claims on res judicata or waiver grounds. As such, thetortured process that Spreitzer suggests the Illinois Supreme Court should have undergone to reach these claims does not constitute a fair presentment of them to the Illinois Supreme Court.

Futility

Spreitzer also argues that he was not required to claim ineffective assistance of sentencing counsel before the Illinois Supreme Court because any such action would have been futile. Spreitzer claims that because his post-conviction counsel failed to append affidavits to his post- conviction petition, the Illinois Supreme Court would have dismissed this claim as insufficiently substantiated. For this reason, he argues that he had no likelihood of success on his claim and need not have brought it to the Illinois Supreme Court.

Illinois courts routinely dismiss claims for post-conviction relief that lack support in the record or supporting affidavits for the proposition that the petitioner's constitutional rights have been violated. See People v. Erickson, 700 N.E.2d 1027, 1034 (Ill. 1998); see also People v. Turner, 719 N.E.2d 725, 730 (Ill. 1999). The Supreme Court has provided an exception to the exhaustion doctrine in those instances where "the corrective process is so clearly deficient as to render futile any claim to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981). However, we have interpreted the phrase "corrective process" to refer only to the post-conviction appellate procedure provided by a state. See, e.g., United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1197 (7th Cir. 1984) (analyzing the Illinois state mandamus procedure to determine whether its deficiencies allow futility claim). Therefore, "the pertinent question is not whether the state court would be inclined to rule in the petitioner's favor, but whether there is any available state procedure for determining the merits of petitioner's claim." White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993).

Because Spreitzer's post-conviction counsel failed to append additional affidavits to the record, the Illinois Supreme Court probably would have dismissed Spreitzer's claim as unsubstantiated without reaching the merits. Nonetheless, Spreitzer does not contest that Illinois maintained a process to present such claims. As such, he presents no colorable argument that it would have been futile to present this argument before the Illinois Supreme Court. We do not believe that such action would have been futile in the sense required by Duckworth, and we reject Spreitzer's contention that he need not have presented these claims on the basis of this purported futility.

Young v. Hayes, No. 00-2705 (8th Cir. 07/11/2000) Petitioner claims he was prevented from developing certain evidence in his clemency petition due to gross interference from state prosecutorial officials.  Holding due process is applicable to clemency procedures, emergency panel grants a stay on the issue. 

The sentence of death is scheduled to be carried out at 12:01 a.m. tomorrow, Wednesday, July 12, 2000. The District Court dismissed Mr. Young's complaint on motion for summary judgment. The appellant seeks reversal and a stay of execution in this Court.

We state the facts and our conclusions briefly because of the exigency of time. The essential theory of the complaint is that the defendant Hayes, Circuit Attorney for the City of St. Louis, has threatened to fire one of the lawyers under her supervision, Jane Geiler, if Ms. Geiler provides information to the Governor of Missouri in connection with a clemency petition Mr. Young wishes to file. Interference by an official of the State with the clemency process, Mr. Young argues, threatens to deprive him of his life, without due process of law. Our first duty is to decide our own jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Is the case moot? Defendants argue that it is, for two reasons: (1) Ms. Hayes has withdrawn her objection to Ms. Geiler's participation in the clemency proceeding; and (2) Ms. Geiler has actually provided the Governor with an affidavit. We conclude that neither of these events renders the case moot. As to Ms. Hayes's action, we think it sufficient to quote the recent opinion of the  Supreme Court in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 120 S. Ct. 693, 708 (2000):

It is well settled that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite, 455 U.S., at 289, 102 S. Ct. 1070. "[I]f it did, the courts would be compelled to leave '[t]he defendant . . . free to return to his old ways.'" Id., at 289, n. 10, 102 S. Ct. 1070 (citing United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L.Ed. 1303 (1953)). In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S. Ct. 361,
21 L.Ed.2d 344 (1968). The "heavy burden of persua[ding]" the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Ibid.

Here, even if we assume that Ms. Hayes's withdrawal of her prior statement about firing Ms. Geiler is full and ungrudging, we have nothing more than the voluntary cessation of allegedly illegal activity.

As to the affidavit that Ms. Geiler has submitted, at least one good reason remains why the case is not moot. The affidavit covers only one of the two subjects that Ms. Geiler initially agreed to testify about. The affidavit describes what Ms. Geiler regards as the inadequate representation that Mr. Young received in his capital trial. It does not address Ms. Geiler's further observation (if representations by counsel for Mr. Young as to the conversation he had with Ms. Geiler are to be believed) that the Circuit Attorney's office, during the relevant time period, uniformly and without exception exercised peremptory challenges to remove black jurors. This omission, we think, is arguably due to Ms. Hayes's insistence, even after the threat of discharge had been removed, that Ms. Geiler, her employee, not say anything to the Governor or to the Missouri Board of Probation and Parole that would embarrass the Circuit Attorney's office. This case was decided on motion for summary judgment. The burden of demonstrating mootness is on the defendants. Friends of the Earth, supra. It seems to us that a trier of fact could reasonably infer that Ms. Geiler's willingness to provide information freely is still under some substantial restraint as a result of actions by the defendant Hayes.

What about the merits? On this point, the District Court simply dismissed the complaint for failure to state a claim, holding that there is no right whatever to due process of law in connection with a clemency proceeding. This view is inconsistent with the position quite recently taken by a majority of the Supreme Court. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288-89 (1998)(O'Connor, J., concurring in part and concurring in the judgment, joined by Souter, Ginsburg, and Breyer, JJ.); id. at 290 (Stevens, J., concurring in part and dissenting in part). In particular, Justice O'Connor stated:

I do not . . . agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards.

The State relies on two decisions of this Court, Perry v. Brownlee, 122 F.3d 20 (8th Cir. 1997), and Otey v. Stenberg, 34 F.3d 635 (8th Cir. 1994). In both of those cases we rejected due-process claims aimed at state clemency hearings. We do not think that the general expressions in these opinions about the applicability of due process in clemency proceedings are controlling in the particular circumstances of the present case. In any event, if the cases are read as laying down an absolute rule that no due-process violation can ever occur in a clemency proceeding, they are inconsistent with the later pronouncements of a majority of the Supreme Court in Woodard. This panel is bound by previous panel opinions of our own Court, but we are not so bound if an intervening expression of the Supreme Court is inconsistent with those previous opinions.

Certainly the discretion of a governor to grant or deny clemency is unlimited in any ordinary circumstances. No claim is advanced here that the petitioner has a "liberty interest" in the grant of clemency or the right to any particular outcome when he seeks it. The allegation is quite different. Apparently Missouri regularly receives evidence from any and all sources in clemency matters, and the Governor is not restricted as to the nature of the considerations he may entertain or the evidence he may receive. If clemency is sought on the ground of ineffective assistance of counsel, racial discrimination in the trial process, or other procedural grounds, the Governor may grant or deny it as he chooses. The claim here is that the State, acting through the Circuit Attorney of the City of St. Louis, has deliberately interfered with the efforts of petitioner to present evidence to the Governor. It is uncontested that the interference did in fact occur at one time. As we have tried to explain above, the question whether the effects of the interference still persist is one on which reasonable people could differ, and therefore for a trier of fact.

Indeed, there is reason to think that what the Circuit Attorney did here amounts to the crime of tampering with a witness, see Mo. Ann. Stat. §575.270(1). This statute provides, in pertinent part:

A person commits the crime of "tampering with a witness" if, with purpose to induce a witness or a prospective witness in an official proceeding . . . to absent himself . . ., or to withhold evidence, information or documents, . . ., he:
(1) Threatens or causes harm to any person or property;
or
(2) Uses force, threats or deception; . . ..

The instant complaint alleges that the defendant Hayes, with the purpose of inducing Ms. Geiler to withhold evidence, threatened her with loss of her job. Cf. 18 U.S.C. §1505 (a comparable federal statute). Such conduct on the part of a state official is fundamentally unfair. It unconscionably interferes with a process that the State itself has created. The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is 
created, the state's own officials refrain from frustrating it by threatening the job of a witness.

Smith v. Johnson, No. 99-20524 (5th Cir. 07/12/2000) "Smith has not shown cause for failing to raise this claim in his first state habeas petition, and he has not shown that he is factually innocent.  . . . . Because Smith has not shown cause for his procedural default or that he is actually innocent, Smith cannot avoid the procedural bar."

Phillips v. Donnelly, No. 99-60062 (5th Cir. 07/10/2000) Petitioner bears the burden of proofing facts that suport claim of equitable tolling of the AEDPA.

Hall v. Cain, No. 99-30628 (5th Cir. 07/12/2000) "In granting Hall leave to proceed in forma pauperis on appeal, the magistrate judge ordered compliance with the Prison Litigation Reform Act (PLRA), assessed an initial partial filing fee, and ordered Hall to pay the balance of the filing fee in monthly installments. However, the PLRA and its requirement of filing fees do not apply to habeas proceedings. See United States v. Cole, 101 F.3d 1076, 1077 (5th Cir. 1996) ("Congress specifically addressed reforms to habeas corpus review in the [AEDPA . . . but] makes no mention of changing filing fees in these proceedings."). Accordingly, we must REMAND to the district court with instructions to VACATE the PLRA order and to refund to Hall any money that he has already paid pursuant to that order."

Schell v. Witek, No. 97-56197 (9th Cir. 07/11/2000) "Schell asserts three points of allegedly constitutional error: (1) that the state's case lacked sufficient evidence to support the jury's verdict finding him guilty of burglary, (2) that the state trial court violated his right to counsel by failing to rule on his pre-trial motion requesting substitute counsel, and (3) that his appointed counsel's defense of him at trial was prejudicially deficient. Schell asks us at a minimum to remand his case to the district court for an evidentiary hearing to explore two intertwined matters related to his Sixth Amendment right to counsel: (1) the effect of the state trial court's failure to rule on his motion for substitute counsel, and (2) whether counsel's representation of him at trial was fatally ineffective and prejudicial. We hold that there was sufficient evidence for a  reasonable jury to convict Schell of residential burglary. We hold also that the state trial court's failure to make a formal inquiry into the nature and extent of the conflict between Schell and his counsel was error. Furthermore, on the facts of this case, Schell's allegation that his counsel failed to consult a fingerprint expert could have -- if true -- constituted ineffective assistance of counsel. We therefore remand this case to the district court for an evidentiary hearing. This hearing shall determine (1) the nature of the alleged irreconcilable pre-trial conflict between Schell and his attorney, (2) whether that conflict constructively deprived Schell of his Sixth Amendment right to be represented by counsel, (3) whether counsel's handling of his defense was constitutionally deficient, and (4) if that defense was ineffective, whether that performance deficiency was prejudicial as defined in Strickland v. Washington, 466 U.S. 668 (1984)."
 

Solis v. Garcia, No. 98-56219 (9th Cir. 07/12/2000) " He seeks habeas relief on the grounds that the trial court judge (1) failed to instruct the jury on the elements of the predicate crime he was alleged to have committed as an aider and abettor; (2) failed to instruct the jury on lesser offenses that were supported by substantial evidence; and (3) committed errors that, cumulatively, denied him due process."  Relief denied.

Watley v. Williams, No. 99-2262 (10th Cir. 07/10/2000) "Petitioner appeals the district court's denial of habeas relief on two grounds: the exclusion of a surprise alibi witness and the failure
to excuse a juror for cause." Petition denied.

Davenport v. United States, No. 99-2099 (11th Cir. 07/13/2000) "In a report and recommendation, the magistrate judge determined that the three new claims in Davenport's amended § 2255 motion did not relate back to the date of the filing of his original § 2255 motion and were time-barred under the AEDPA. The magistrate judge also recommended denying Davenport's timely filed claims, finding that they were either procedurally barred or lacked merit. . . . Although Davenport's original § 2255 motion challenged the moisture content and the lack of sodium bicarbonate in the drugs and counsel's failure to raise those issues, his original motion gives no indication that three grams in one drug transaction were not part of the same course of conduct or a common scheme of the other larger drug transaction and does not allege that his counsel was ineffective for not exploring this issue. The original claims thus dealt with the chemical makeup of the drugs, whereas the amended claims addressed the relationship between the drug transactions and his counsel's having improperly relied on a one-page lab summary instead of obtaining the full eleven-page lab report. Regarding the new claim asserting counsel's failure to advise Davenport of a possible plea agreement, Davenport's original § 2255 motion contains no mention of any such pre-trial activity or inactivity. Thus, Davenport's three new claims do not arise out of the same set of facts as his original claims, but arose from separate conduct and occurrences in both time and type."

Cabberiza v. Moore, No. 97-4592 (11th Cir. 07/11/2000) " In this case, petitioner David
Cabberiza ("petitioner") was indicted for first degree murder and thus was entitled to a twelve-person jury. Prior to trial, his attorney agreed (with the prosecutor) to a trial before a six-person jury. That jury convicted petitioner of first degree murder, robbery, and burglary. After exhausting his state court remedies, he petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus, claiming that his convictions were invalid because (1) the Sixth Amendment required that he be tried of first degree murder by a jury of twelve, and that he did not knowingly and voluntarily waive that requirement; (2) if the Sixth Amendment did not require a jury of twelve, Florida law required one, and the trial court denied him due process of law when it accepted counsel's waiver of that requirement; (3) his attorney denied him his Sixth Amendment right to effective assistance of counsel in agreeing to a trial before a six-person jury; and (4) if trial before a six-person jury was appropriate, the trial court denied him his Sixth Amendment right when, on a poll of the jury, it accepted a verdict of guilty executed by only five of the jurors."  Relief denied.
 
 

Cornejo-Barreto v. Seifert, No. 98-56827 (9th Cir. 07/11/2000) Where extradition for charges in other countries may expose a Petitioner to torture a specific finding must be rendered by the Secretary of State prior to deportation.  Prior to any such order a decision on habeas relief is premature.

Devereaux v. Perez, No. 97-35781 (9th Cir. 07/12/2000) "[W]e hold that Devereaux's S 1983 claim is not viable. In this case, Devereaux's claimed legal right to have a child sex abuse investigation conducted in such a manner to avoid leading questions, influencing or manipulating the child witnesses, or eliciting inconsistent statements is such a generalized legal right as to "convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging [a] violation of extremely abstract rights."
Anderson, 483 U.S. at 639, 107 S.Ct. at 3039."

Ferguson v. Bruton , No.  99-1599 (8th Cir 07/10/00) " District court did not err in finding waiver of counsel was valid; omission of element of offense in kidnaping instruction was harmless, because Ferguson did not contest the element and the record clearly established it beyond a reasonable doubt."

Harris v. Hammonds, No. 98-9476 (11th Cir. 07/13/2000) " Harris's sole claim on appeal is that the retroactive application of Ga. Comp. R. & Regs. r. 475-3-.05(2) (1986), which as amended requires a parole- reconsideration hearing at least once every eight years, instead of annually as required at the time Harris committed his offense, violates the Ex Post Facto Clause of the United States Constitution."  Remand in light of  Jones v. Garner, 164 F.3d 589 (11th Cir. 1999), rev'd and remanded, 120 S.Ct. 1362 (2000).
 
 

You, quiet walkers and dreamers of a noble death, who make whatever peace you can and then walk unassisted toward the chair or strap-laden table that will end your life. You, who wish your last actions on earth to be courageous, accepting your fate. You have been lied to.

Do you think that people will remember your courage? They will not. The only witnesses to your execution are those who wish you dead. Those who are relieved at your passivity and the ease with which you died. The walk you think noble, in reality, means a slight lessening of guilt for those who would kill you. 

The only noble death is that of old age or accident. Your death, strapped to a table and put away like a dog too homely to find a home, is an obscenity. 

The obscenity is compounded by your complicity. A person who strides toward death dealt by others is an accomplice in that death. Stop.

Dylan Thomas wrote to his dying father, "Do not go gentle into that good night." In the same poem he wrote, "Rage, rage against the dying of the light." I call such rage a noble death.

Ancient Celtic warriors thought the best way to die was face down, charging toward the enemy. Vikings, too, thought dying was best done fighting for life. 

Here is how to be remembered. Here is the statement worth making on your last day of breath: "I have learned enough while in this prison to realize that killing people is wrong. I will not be a part of my own death."

When the guards come, and the priest, all somber eyes and grim, look hard into their eyes. Look hard enough to find either the pain, guilt at what they do, or the joy because they are murderers too cowardly for law-breaking. Look deep enough to find which and challenge it. Then fight.

Kick and scream, man! Punch, and gouge, and bite, and fight and fight more. 

Death is no quiet lover for open-armed acceptance. Death is the enemy, and those who seek to help you find it are not your friends. Fight them.

Fight them hard enough so that the journalist, luckless witness to your execution, will notice the struggle and be sick to her stomach. Make her feel compelled to write how you struggled for life and the state took it from you. Make the doctor at his needle go home and puke. Make the warden resign, horrified at what he's done. Make yourself, at that last moment, know you did every useless thing you could attempting to prolong your own life.

Part of the reason we think it is OK in this country to kill prisoners is that the prisoners don't seem to mind. We, the public, hear only how the condemned ate the last meal, joking with family, saying sweet good-byes. We hear of the walk, unassisted and quiet. We hear the considered last words or stony silence, and then we think, "Thank God that is over. Thank God they didn't fight. Thank God it was easy."

You, the murderer on death row, you know - because you have dealt it out - far better than we that death is ugly. Help us, the "We the People," see the ugliness with our own eyes. Fight hard enough for your own life that we might see the value in it. If you do - if you all do - then we might repeal the sick and twisted law that allows executions. If this happens, if people get sick at your struggle, and change the law as a result, then your death truly will be noble. It will have helped save the lives of others.

David Bulley (Dave@Bulleys.com) lives and writes in Amherst, Mass. 

Oregon Voters May Decide on Replacing Death Penalty Former Oregon Senator Mark Hatfield's "Life for Life Campaign" recently submitted over 110,000 signatures to put their initiative, which replaces Oregon's death penalty with mandatory life in prison without parole, plus restitution for the victims' heirs, on the state's election ballot. If the signatures qualify, the initiative will be voted on in November. (Salem Statesman Journal, 7/8/00) For more information, see also the Life for Life Campaign. 
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