This delayed issue brings tales of  woe as four  capital case defeats are noted this week.  In Green v. Catoe, the Fourth Circuit examines, and then denies relief, on claim relating to a change in settled state law regarding juror eligibility.  The Tenth Circuit in  McGregor v. Gibson addresses at some length issues relating to trial level competency. The Ninth Circuit in  Lambright v. Stewart determines the standards for a COA after the Supreme Court's holding in Slack v. McDaniel determining those factors. Finally, one federal direct appeal is noted, United States v. Johnson,  addressing, most notably, the appellant's right to represent himself.

The in depth/feature section this week covers the ongoing fallout from the lock down in Philadelphia during the Republican National Convention.

As this is a delayed issue this week's regularly scheduled issue will hopefully be out within 72 hours, at which time the website will be updated.

Following the reversal of his first conviction, a jury determined Mr. McGregor was competent to stand trial. At that competency proceeding, however, the trial court unconstitutionally required him to prove his incompetence by clear and convincing evidence. See Cooper v. Oklahoma, 517 U.S. 348, 350, 369 (1996).

Mr. McGregor challenged the application of that burden of proof for the first time in state post-conviction proceedings. Applying the 1995 amendments to Oklahoma's post-conviction procedures, the Oklahoma Court of Criminal Appeals declined to consider his Cooper claim. See McGregor, 935 P.2d at 333, 334. Respondents assert that Mr. McGregor has thus procedurally defaulted his Cooper claim. This procedural due process claim is subject to procedural default. See, e.g., Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 567 (10th Cir. 2000).

The Oklahoma Court of Criminal Appeals decided Mr. McGregor's direct criminal appeal in 1994; the United States Supreme Court denied certiorari in October 1995. The 1995 amendments to Oklahoma's post-conviction procedure became effective November 1, 1995. See Rogers v. Gibson, 173 F.3d 1278, 1290 n.12 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). The Supreme Court did not decide Cooper until April 1996.1 Because "[t]he 1995 Oklahoma statutory amendments greatly circumscribed the court's power to apply intervening changes in the law to post-conviction applicants" and because "a defendant cannot be expected to comply with a procedural rule that did not exist at the time of the purported default," this state procedural bar is not adequate to preclude federal habeas review. James v. Gibson, 211 F.3d 543, 550-51 (10th Cir. 2000) (quotation omitted); see also, e.g., Clayton, 199 F.3d at 1171.

Clearly established Supreme Court precedent provides that the criminal trial of one who is incompetent violates due process. See Cooper, 517 U.S. at 354, citing cases. Because the jury in this case determined Mr. McGregor's competency under an unconstitutional burden of proof, this court cannot presume its competency finding to be correct. See, e.g., Van Woudenberg, 211 F.3d at 567 n.5. Rather, this court must review his competency claim as if there had been no competency hearing at all. See, e.g., id.

"A competency claim based upon procedural due process involves a defendant's constitutional right, once a bona fide doubt has been raised as to competency, to an adequate state procedure to insure that he is in fact competent to stand trial." Barnett v. Hargett, 174 F.3d 1128, 1133-34 (10th Cir. 1999). The issue presented, therefore, is whether a bona fide doubt exists as to Mr. McGregor's competence at the time of his trial. See, e.g., Van Woudenberg, 211 F.3d at 567.
 

A defendant will be deemed competent to stand trial if at the time of trial he had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and . . . a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 . . . (1960). Although not limited to these factors, a court conducting a competency inquiry should consider defendant's demeanor at trial, any evidence of irrational behavior by defendant, and perhaps most important, any prior medical opinions regarding competency.
 

Clayton, 199 F.3d at 1171.

Careful review of the record fails to persuade us that there was a bona fide doubt as to Mr. McGregor's competency at the time of trial. Mr. McGregor does have a long history of mental illness and treatment with psychotropic medication. That alone, however, is insufficient to establish that he was incompetent to stand trial. See, e.g., United States v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000).

A treating psychiatrist deemed him competent prior to his first trial, in 1983. Although the trial court, prior to his second trial in 1989, found "initial doubt" sufficient to necessitate a psychiatric evaluation, the subsequent examining psychologist's report, concluding Mr. McGregor was competent, dispelled that initial concern. Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000). Although these competency determinations did rest on Mr. McGregor's continued treatment with antipsychotic medication, the evidence fails to indicate any significant disruption in his medication during trial.2 See Walker v. Attorney Gen., 167 F.3d 1339, 1346 (10th Cir.) (competency determination could change if, among other things, petitioner failed to continue taking his medication), cert. denied, 120 S. Ct. 449 (1999). The record does not indicate any occasion when a mental health official has ever found that Mr. McGregor was, at any time, incompetent to stand trial. See Clayton, 199 F.3d at 1171-72 (no bona fide doubt existed as to petitioner's competence to stand trial, in light of unequivocal testimony of three medical experts that petitioner was competent to stand trial).

During trial, defense counsel did raise concerns about Mr. McGregor's competency. Although defense counsel's representations concerning a defendant's competency should be considered, they are not dispositive. "[C]oncerns of counsel alone are insufficient to establish doubt of a [petitioner's] competency," Mackovich, 209 F.3d at 1233 (further quotation omitted); see also Bryson v. Ward, 187 F.3d 1193, 1202 (10th Cir. 1999), cert. denied, 120 S. Ct. 1566 (2000).

The trial judge, who had ample opportunity to observe Mr. McGregor daily during trial, did not express any concerns that he was incompetent. See Van Woudenberg, 211 F.3d at 568; Foster, 182 F.3d at 1191. On several occasions during trial, in response to defense counsel's assertions that Mr. McGregor was having mental difficulties on a particular day, the trial judge specifically noted that he had observed Mr. McGregor on a number of different occasions prior to trial and that Mr. McGregor seemed the same that day as he always did. In addition, the trial judge had the opportunity to observe Mr. McGregor testify during an in camera suppression hearing, during which Mr. McGregor was able to understand the questions posed and respond accordingly.

Further, Mr. McGregor's conduct and demeanor at trial were not so bizarre and irrational as to raise a bona fide doubt that he was incompetent. Cf. United States v. Williams, 113 F.3d 1155, 1157-61 (10th Cir. 1997) (holding, in federal criminal appeal, trial court erred in failing to inquire into defendant's competence, where her hysteria, outbursts and disruptive behavior throughout course of trial raised bona fide doubt as to her competence).

Despite Mr. McGregor's lengthy history of mental illness and psychiatric treatment, therefore, he is unable to establish a bona fide doubt that he was incompetent at the time of his trial. See Walker, 167 F.3d at 1346-47.

During jury selection, the trial court declined to remove three jurors, whom Green had moved to excuse for cause, from the jury venire, so Green used peremptory challenges on all three. Green ulti- mately exhausted his peremptory challenges, after which two jurors were seated on the jury that convicted Green and condemned him to death. 

Green asserts that under the law of South Carolina, as it existed prior to the resolution of his direct appeal, he was entitled to a new trial if he made two showings: (1) that he had been forced to use a peremptory challenge on a venireperson who should have been excused for cause, and (2) that he had exhausted his peremptory chal- lenges before the jury was impaneled. On direct review, the Supreme Court of South Carolina concluded that the trial court had erred in denying Green's motion to excuse, for cause, one of the three jurors at issue. Green, 392 S.E.2d at 159-61. According to Green, at that point, he had satisfied the two then-existing prerequisites for a new trial. However, in his direct appeal, the Supreme Court of South Caro- lina declined to award Green a new trial, instead imposing what Green characterizes as a "new" third requirement -- that "this error deprived him of a fair trial" (the "fair trial element"). Green, 392 S.E.2d at 160. Because Green could not make this third showing, he was denied a new trial by the Supreme Court of South Carolina. 

Green asserts that the imposition of this fair trial element, which previously had not been required under South Carolina law, was effected without proper notice, in violation of his right to procedural due process. Specifically, Green asserts that the law was changed and retroactively applied to his appeal, and if he had been given proper notice, he could have (1) made a record at trial sufficient to demon- strate that he had been denied a fair trial, and (2) argued against a change in the law on direct appeal. 

1. 

Before turning to the merits of Green's Due Process claim, we note that the State agrees with Green that this claim has been properly pre- served; indeed, it could not have argued otherwise. The alleged Due Process violation arose from the Supreme Court of South Carolina's resolution of his direct appeal; thus, this claim could not have been raised prior to Green's petition for rehearing thereon. In Sellers v. Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme Court of South Carolina stated that if an error arose out "of[an] affirmance by an appellate court," an appellant may seek a review of the alleged error on the merits in a petition for rehearing. Green included his argument in his petition for rehearing, and we thus agree with the State that Green presented the Due Process claim to the State, the State adjudi- cated the claim, and Green has exhausted his state remedies with respect to the claim. 

2. 

Under the Fourteenth Amendment, no state "may deprive any per- son of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Inasmuch as Green has alleged a deprivation of procedural due process, our analysis involves two steps. Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993). First, we must determine "whether there exists a liberty or property interest which has been interfered with by the State." Id. Second, we must ascertain "whether the procedures attendant upon that deprivation were constitutionally sufficient." Id. 

a. 

With respect to the first step of the Due Process analysis, many state-created rights have been accorded the status of liberty or prop- erty interest within the meaning of the Fourteenth Amendment. See, e.g., Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 677 (1930); Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). Thus, state-conferred rights have been recognized as liberty or property interests that are "sufficiently embraced within Fourteenth Amend- ment `liberty' to entitle [defendants] to .. . minimum procedures appropriate under the circumstances." Wolff , 418 U.S. at 557. Of course, a state has "the authority to create, or not," each of these rights; however, once created, the Due Process clause guarantees "that the state-created right is not arbitrarily abrogated." Id. Within this context, we must examine the right that Green claims was abrogated by South Carolina. 

According to Green, prior to the resolution of his appeal, a defen- dant who established two elements: (1) that he was forced to use a peremptory challenge on a venireperson who should have been excused for cause; and (2) that he had exhausted his peremptory chal- lenges before the jury was impaneled, was absolutely entitled to a new trial. Under the then-controlling law of South Carolina as articu- lated by Green, the Supreme Court of South Carolina was without dis- cretion to deny him a new trial under the facts present in his appeal. In other words, Green's asserted state-created right, which would be subject to the guarantee of procedural due process, is his right to a new trial. 

For authority that he was previously guaranteed a new trial under these circumstances, Green first relies upon State v. Sanders, 88 S.E. 10, 12 (S.C. 1916). There, the Supreme Court of South Carolina reversed and remanded a criminal conviction based solely on an argu- ment raised by the appellant that a motion to excuse for cause had been erroneously rejected, causing him to use a peremptory challenge. The court remanded for a new trial based upon the following findings: 

His honor, the presiding judge ruled that the juror was com- petent, and that he should be presented to the prisoner who rejected him [using a peremptory challenge]. It is admitted that the defendant exhausted his peremptory challenges before the panel of jurors was completed. It is true the juror stated that he could give the prisoner and the state a fair and impartial trial; but, as he also stated that he felt a resentment in this particular case, which might prejudice him in render- ing a verdict, that, as stated, he felt a prejudice in this partic- ular case, and that he felt a natural resentment against a lawyer of the colored race, pleading to a jury of which he was a member, this court is satisfied that his honor, the cir- cuit judge, erroneously exercised his discretion in ruling that the juror was competent. 

Id. at 12. The import of this holding is clear: if a motion to excuse a juror is improperly denied, the defendant then uses a peremptory challenge on that juror, and the defendant runs out of peremptory challenges before the last juror is seated, then the defendant is entitled to a new trial. 

Green also relies upon State v. Anderson, 281 S.E.2d 111, 112 (S.C. 1981), to assert that he was previously guaranteed a new trial. During Anderson's trial, the court had allotted the defendant five peremptory challenges, instead of the ten required by statute. Id. The Supreme Court of South Carolina held: "We think appellant, having objected to the limitation and having exhausted her allotted chal- lenges, has shown prejudice. To venture a sixth challenge would have been futile." Id. at 112. The court thus granted a new trial in Anderson with no mention whatsoever of a "fair trial" element; instead, it was sufficient that an objection was raised and the defendant's peremptory challenges were exhausted. 

Significantly, in a case decided nine years after the 1990 decision resolving Green's direct appeal, the Supreme Court of South Carolina again noted that no "fair trial" demonstration was necessary in the context of an error relating to peremptory challenges. See State v. Short, 511 S.E.2d 358, 360-61 (S.C. 1999). There, in circumstances analogous to Green's, the court "adopt[ed] the majority rule that no showing of actual prejudice is required to find reversible error for the denial or impairment of the right to a peremptory challenge." Id. at 360. It did so in agreement with the Court of Appeals of South Caro- lina, which had concluded that "there was no way to determine with any degree of certainty whether [the defendant's] right to a fair trial by an impartial jury was abridged." Id. Although Short was decided in the context of a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), the broad language and rationale of Short are applicable to cases in which a defendant is denied a peremptory challenge by a trial court's improper denial of a motion to excuse a juror for cause.1 

The State responds with two arguments. First, it asserts that we should not be attempting to ascertain whether the fair trial element was "new" because the Supreme Court of South Carolina has indi- cated that it was not. Specifically, in the course of discussing the fair trial element during the resolution of Green's appeal, the court stated: 

In most of the South Carolina cases involving peremptory challenges, appellants have failed to satisfy the first step of this process. In only one South Carolina case have we reached the second step of the review procedure. State v. Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986).[2] In Cooper, appellant asserted that the trial court erroneously qualified a highway patrolman as a juror who should have been excused for cause because he fell under a statutory exclu- sion. For purposes of that opinion, we clarified the applica- tion of the statute and noted the judge's error in his interpretation of the statute. However, because we reversed that case for other reasons, it was not necessary for us to determine whether that error alone would have warranted reversal. In other words, we did not engage in the third[, fair trial] step of the process. . . . 

392 S.E.2d at 160. This passage at least implies that the fair trial ele- ment has always been an unstated element of the test for a new trial. In reliance thereon, the State argues that we are not entitled to second- guess, in a federal habeas corpus proceeding, a state court's construc- tion of its own law. 

Second, the State relies upon two pre-1990 decisions in which the Supreme Court of South Carolina alluded to the fair trial element ulti- mately made explicit in Green. See State v. Weaver, 36 S.E. 499, 501 (S.C. 1900); State v. Plath, 284 S.E.2d 221, 227 (S.C. 1981). A cen- tury ago, in Weaver, one ground upon which an appellant sought review was the trial court's erroneous denial of a motion to excuse a juror for cause, which the defendant claimed resulted in the premature exhaustion of his peremptory challenges. The Supreme Court of South Carolina rejected this as a basis for a new trial for several rea- sons. First, it noted that this assertion was "speculative" because none of the jurors who were actually seated had been challenged -- either peremptorily or for cause. Id. at 500. Second, the court found that the trial court had not erred in declining to excuse the juror for cause. Id. at 501. Third, the court noted, in the alternative, that "in view of the fact that, so far as appears from the record before us, there was not a single person on the jury which tried the case to whom any objec- tion was interposed, we do not see that the appellants have any legal ground of complaint." Id. Fourth, the court found that the defendant had not exhausted his peremptory challenges before the jury was impaneled. Id. Although the first and third bases relied upon in Wea- ver were holdings in the alternative, the court, in those bases, at least suggested the "fair trial" showing to be necessary before a new trial would be ordered. 

Subsequently, in the 1981 Plath decision, South Carolina again appeared to endorse a fair trial element. Plath , 284 S.E.2d at 227. There, the defendant claimed error in the trial court's rejection of his attempt to exercise a peremptory challenge after the jury had been seated but before it had been sworn. The court essentially assumed that the denial had been error but nonetheless found no abuse of dis- cretion because the defendant could not demonstrate the deprivation of a fair trial flowing from this error: 

[T]he rationale of the court in [State v. Holland, 201 S.E.2d 118, 118 (S.C. 1973)] is applicable: . . . "No showing was made to the court at trial, nor has any been made since, to indicate bias or lack of impartiality on the part of this juror[, whom defendant had attempted to excuse by peremptory challenge on the third day of trial]". . . . 

[Similarly,] Plath had ample opportunity to examine the pro- spective juror on voir dire. The record shows the trial judge gave counsel for Plath two opportunities to strike the juror; one when she was accepted and the other later in the jury selection process. Furthermore, co-defendant Arnold con- tended removing a juror after all of the jurors and alternates had been seated would prejudice his case. Plath has not shown the requisite prejudice to him in order to hold the trial judge abused his discretion by refusing to allow the belated peremptory challenge to be exercised. 

Id. at 360 (emphasis added). This passage implied that, even if it was error to deny the use of a peremptory challenge, that error would not constitute an abuse of the trial court's discretion unless some "show- ing" could be made that a juror seated on the panel was "bias[ed]" or "impartial[ ]." Id. The Staterelies upon Weaver and Plath in asserting that the fair trial element -- articulated as the third element in the 1990 decision resolving Green's direct appeal -- has actually been, for the last century, an unstated element of the new trial test. 

On the contrary, we believe that under the South Carolina law in effect prior to Green's appeal, he had a clearly established right to a new trial upon a demonstration of two elements -- (1) that he had wasted a peremptory challenge on a juror who should have been excused for cause, and (2) that he exhausted his peremptory chal- lenges before the jury was impaneled -- but without the third element -- a demonstration that he had been deprived of a fair trial. Although the view of the Supreme Court of South Carolina relating to the law in that state would ordinarily be conclusive on this question, we are unable to rely upon that view here because the highest court has artic- ulated conflicting characterizations of its law. In its 1990 Green deci- sion, the Supreme Court of South Carolina arguably implied that the fair trial element had always been an unstated part of the new-trial test, but, in its 1999 Short opinion, the court stated that such a show- ing had never been required: 

We now overrule Plath and adopt the majority rule that no showing of actual prejudice is required to find reversible error for the denial or impairment of the right to a peremp- tory challenge. We note that Plath is distinguishable from our other decisions discussing "prejudice" in the denial of a peremptory challenge where the issue actually turned on whether the complaining party had established he was denied the right to exercise a peremptory challenge. Where such a denial was established, we implicitly applied the majority rule discussed above and reversed without a show- ing of actual prejudice. See State v. Anderson, 276 S.C. 578, 281 S.E.2d 111 (1981) (prejudice in wrongfully limiting number of peremptory challenges where defendant exer- cised all permitted); Moore v. Jenkins, 304 S.C. 544, 405 S.E.2d 833 (1991) (failure to use side-to-side procedure in allowing peremptory challenges in a case with multiple defendants prejudiced the plaintiff as a matter of law). In cases finding no prejudice, on the other hand, we actually determined the complaining party had not established the denial of a peremptory challenge. See Laury v. Hamilton, 317 S.C. 503, 455 S.E.2d 173 (1995) (no prejudice where party received greater number of strikes than that to which he was entitled under side-to-side method); State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973) (no prejudice in limit- ing number of peremptory challenges where defendants used fewer than allowed). Before reversible error can be found, the complaining party must of course establish the denial of his right to exercise a peremptory challenge. 

Id. at 360-61 (emphasis added). Thus faced with two statements -- (1) an initial statement that the fair trial element has always been implied in the test, and (2) a subsequent statement that the fair trial element had, by negative implication, never been part of the test -- we cannot unquestioningly rely on the Supreme Court of South Caro- lina's statement in Green. 

We have thus independently reviewed the applicable law. From our review, it is immediately apparent that no decision, prior to Green's, required a demonstration that the defendant had been deprived of a fair trial; indeed, the Green court acknowledged as much. Green, 392 S.E.2d at 160. The heretofore absence of this requirement is signifi- cant because the South Carolina courts had granted a new trial at least twice, in Sanders and Anderson, without mentioning the fair trial ele- ment. We also give some weight to the fact that numerous South Car- olina decisions had considered the question presented in this case without mentioning the "fair trial" element. See supra note 1. Under the facts present here, we can only conclude that the rule in effect prior to Green's case was that he was entitled to a new trial upon a demonstration of the two elements discussed above. 

In this light, we must conclude that -- prior to the resolution of his direct appeal in 1990 -- Green would have received a new trial. The change in law -- to add the third, so-called "fair trial" element, effec- tively deprived him of that previously guaranteed right. On these facts, "there exists a liberty or property interest which has been inter- fered with by the State." Stewart, 7 F.3d at 392. b. 

Having resolved the first question in Green's favor, we next turn to the second issue: "whether the procedures attendant upon that deprivation were constitutionally sufficient." Id. Assessing the ade- quacy of procedure here requires that we balance the interest of the state against those of Green: "[T]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Wolff, 418 U.S. at 560 (quotation omit- ted). Thus, "[c]onsideration of what procedures due process may require under any given set of circumstances must begin with a deter- mination of the precise nature of the government function involved as well as of the private interest that has been affected by government action." Id. (quotation omitted). 

There are two competing interests underlying our determination of whether Green was afforded sufficient process in connection with this change in law. On one hand, our common-law system requires that courts have the opportunity to make law through decisions rendered in individual cases, necessarily requiring that rules will develop and change through the cases themselves. See Brinkerhoff, 281 U.S. at 681 n.8. On the other hand, defendants must have fair warning of the law under which they are tried, and "[t]here can be no doubt that a deprivation of the right of fair warning can result . . . from an unfore- seeable and retroactive judicial expansion of narrow and precise statu- tory language." Bouie v. City of Columbia, 378 U.S. 347, 352 (1964). Our task here is to balance these interests, without unduly burdening the right of the state courts to resolve questions under common law or the right of defendants to fair warning. 

In this light, a change in substantive law by a state that effects a deprivation of a right can occasion a violation of procedural due pro- cess. See, e.g., Douglas v. Buder, 412 U.S. 430, 432 (1973); Bouie, 378 U.S. at 352-55; Brinkerhoff, 281 U.S. at 681-82; cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958) (discussing state procedure in context of Supreme Court jurisdiction). Brinkerhoff illustrates an application of this principle. There, the Supreme Court of Missouri had held, in a decision preceding Brinkerhoff's case, that a specific state administrative body ("state tax commission") did not have the power to consider an application for tax relief. Then, when Brinkerhoff sought tax relief in state court, the Supreme Court of Mis- souri held that he could not sue in state court until he had first pres- ented an application for tax relief to the state tax commission. Because the previous rule -- barring applications for tax relief to the state tax commission -- had been clear and unambiguous, because the change in law was unforeseeable, and because the unforeseeable change effectively deprived the plaintiff of any remedy, the Supreme Court concluded that there had been a Due Process violation. In so holding, the Court noted: 

But our decision in the case at bar is not based on the ground that there has been a retrospective denial of the exis- tence of any right or a retroactive change in the law of reme- dies. We are not now concerned with the rights of the plaintiff on the merits, although it may be observed that the plaintiff's claim is one arising under the federal Constitution and, consequently, one on which the opinion of the state court is not final; or with the accuracy of the state court's construction of [state law]. Our present concern is solely with the question whether the plaintiff has been accorded due process in the primary sense -- whether it has had an opportunity to present its case and be heard in its support. Undoubtedly, the state court had the power to construe the statute dealing with the state tax commission; and to re- examine and overrule [its own authority]. Neither of these matters raises a federal question; neither is subject to our review. But, while it is for the state courts to determine the adjective as well as the substantive law of the state, they must, in so doing, accord the parties due process of law. Whether acting through its judiciary or through its Legisla- ture, a state may not deprive a person of all existing reme- dies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it. 

Id. at 681 (footnotes omitted). 

A defendant thus must establish several elements to prove a depri- vation of procedural due process based on a state's change of its law. First, he must establish that there was a clear, settled rule in effect prior to his case. See Brinkerhoff, 281 U.S. at 678 ("Under the settled law of the state, that remedy was the only one available."); Bouie, 378 U.S. at 352 (noting that statutory language was"narrow and precise"); Wolff, 418 U.S. at 557 (noting that statute created "right to good time"); cf. NAACP, 357 U.S. at 456 (noting that prior rule arose from "past unambiguous holdings"). Second, he must establish that the decision in his case constituted a change in the heretofore clearly established rule. See Brinkerhoff, 281 U.S. at 677 ("No one doubted the authority of [a prior holding] until it was expressly overruled in the case at bar."); Bouie, 378 U.S. at 352 (expansion of narrow lan- guage); Wolff, 418 U.S. at 557 (denial of right to good time credits); cf. NAACP, 357 U.S. at 456 (change in procedure). Third, the defen- dant must establish that the change in law effecting a deprivation of a right occurred in the absence of sufficient procedure -- that the state did not "afford[ ] to him some real opportunity to protect [his right]." Brinkerhoff, 281 U.S. at 682. 

Because the first and second elements above are established here, see supra at 12, we must focus on the third. Green asserts that he did not receive enough notice (1) to make a record sufficient to satisfy the "fair trial" showing on appeal nor (2) to preserve, brief, or argue against this change in law. Therefore, we have carefully examined the notice that Green was afforded. 

In that regard, the prior South Carolina authorities on this issue guide our review. Although South Carolina had, prior to Green's appeal, granted a new trial upon a demonstration of two elements, the Supreme Court of South Carolina had at least suggested, in both its Weaver and Plath decisions, that a third, "fair trial" showing might be required. Further, there had been no prior explicit rejection, in any decision, of the fair trial element that was ultimately adopted by the court in resolving Green's appeal. Cf. Brinkerhoff, 281 U.S. at 682 n.9 ("Had there been no previous construction of the statute by the high- est court, the plaintiff would, of course, have had to assume the risk that the ultimate interpretation by the highest court might differ from its own."). In assessing the notice given, we also must give weight to the fact that, in the 1999 Short decision, the Supreme Court of South Carolina considered the "fair trial" element sufficiently established to necessitate overruling its 1981 Plath decision. The Supreme Court has indicated that if prior state law "suggest[ed]" a new rule, then the change of law was foreseeable, NAACP, 357 U.S. at 457; accord, Reich v. Collins, 513 U.S. 106, 112 (1994) (reviewing Georgia case law), and in the factual context present here, we thus conclude that the change in law effected in Green's case was reasonably foresee- able. 

We agree with Green that the state was required to afford him "an opportunity to present [his] case and be heard in its support." Brinkerhoff, 281 U.S. at 681. However, we believe that a defendant has sufficient notice to (1) make a record for appeal and (2) preserve, brief, and argue against a change in the law if that change in the law was reasonably foreseeable under the prior applicable law. See Bouie, 378 U.S. at 352 (deprivation of right of fair warning from "unforesee- able and retroactive judicial expansion of narrow and precise statutory language"); Douglas, 412 U.S. at 432 ("unforeseeable application of that interpretation . . . deprived petitioner of due process"); cf. NAACP, 357 U.S. at 457 (implying no Due Process violation if peti- tioner "could . . . fairly be deemed to have been apprized of [the] exis- tence [of local procedural rule]"). In reaching our conclusion today, we do not necessarily endorse foreseeability as the benchmark in Due Process claims; we merely conclude that if the change of law was rea- sonably foreseeable based on indications in prior case law, then the defendant had sufficient notice in the Due Process sense. 

1. Were the petitioners' trial attorneys  constitutionally ineffective?  a. Did the Arizona Supreme Court adjudicate the merits of this issue? b. Should Smith's appellate counsel's default in failing to raise the issue of ineffective assistance of counsel be excused because his appellate counsel was from the same office as his trial counsel? c. Were the petitioners' attorneys constitutionally ineffective because they failed to present any evidence of psychological and family history as mitigating evidence?
2. Were the petitioners entitled to an instruction on a lesser included offense? a. Did the Arizona Supreme Court adjudicate the merits of Lambright's claim on this issue? b. Should the trial court have instructed the jury on the lesser included offense? 
3. Did the trial court erroneously instruct the jury on felony- murder? a. Did the Arizona Supreme Court adjudicate the merits of this issue?  b. If the Arizona Supreme Court's ruling was a procedural ruling, was it nonetheless dependent on the merits? c. Is Arizona's procedural rule inconsistently applied because the state court addressed the merits of Lambright's claim but dismissed Smith's claim on procedural grounds? d. Was the trial court's instruction erroneous such that it denied the petitioners due process? 
4. Did the trial court unconstitutionally permit a deputy county attorney to vouch for a witness's credibility?  a. Did the state court clearly hold that Lambright's claim was procedurally defaulted?  b. Is the state procedural rule inconsistently applied  because the state court addressed the merits of Lambright's claim but dismissed Smith's claim on procedural grounds? c. Did the Deputy County Attorney's testimony regarding  the credibility of the state's principal witness deny  the petitioners due process?; 
5. Did the trial court fail to properly apply the limiting construction of the "especially cruel" aggravating factor by not mentioning whether the petitioners' intended to cause the victim suffering?

United States v. Johnson, No. 99-1327 (7th Cir. 08/03/2000) Appellant "does not deny having committed the two murders; his appeal primarily challenges the conduct of the sentencing hearing. He does, however, raise one point about the conduct of the trial itself--that his right to represent himself was infringed--and we begin there."

Two weeks before the trial began, the defendant filed a pro se motion captioned "Defendants Motion to Proceed Pro-Se." In it he argued that his lawyers' representation of him was so deficient that it violated his right to effective assistance of counsel. But rather than asking for the appointment of new counsel, the motion concluded: "Petitioner knows absolutely nothing about the law. But petitioner feels strongly that as his life is on the line, he can do more for his defense than his attorney's have so far." It is unlikely that his statement about knowing nothing about the law is false modesty. The defendant is not an educated person, and his IQ is only 74.

The motion was never ruled on. Apparently it had gotten lost in the shuffle, United States v. Taglia, 922 F.2d 413, 416 (7th Cir. 1991), for the judge stated at a post-trial hearing that she did not remember having seen it and that she would have remembered it if she had seen it, given the gravity and novelty of the case--this was only the second federal death penalty trial in the Northern District of Illinois since the reinstatement of the federal death penalty, and the first to result in a death sentence. The defendant did not renew the motion. His lawyers were unaware of and never mentioned it. He made a number of pro se motions during the course of the trial and in none did he express any dissatisfaction with his lawyers or a desire to represent himself.

Although a defendant has an absolute right to defend himself against a criminal charge, however grave, unless he is mentally incompetent to decide to do so, Godinez v. Moran, 509 U.S. 389, 396-400 (1993); Davis v. Greer, 13 F.3d 1134, 1138 (7th Cir. 1994), the right can be waived either expressly or by implication. There are two types of implied waiver. One, the only one that can properly be called "waiver," is where an intention to relinquish the right, although not expressed, can be inferred. The other, properly called "forfeiture" rather than "waiver" in recognition that waiver is canonically defined as an intentional relinquishment of a right, Johnson v. Zerbst, 304 U.S. 458, 464 (1938), is where the right is taken away from its holder as a penalty for failure to assert it in a clear and timely manner. It is not always clear when a case is one of actually implied waiver or one of forfeiture. The "waiver" of the right of self-representation illustrates the problem. When as in the usual case the defendant is represented by a lawyer, the fact of representation is taken to be the defendant's waiver of his right to represent himself, since "representation by counsel and self-representation are mutually exclusive entitlements," Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), so that "assertion of one constitutes a de facto waiver of the other." United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997). "Defendants forfeit self- representation by remaining silent at critical junctures before or during trial." Cain v. Peters, supra, 972 F.2d at 750. See also Munkus v. Furlong, 170 F.3d 980, 983-84 (10th Cir. 1999). Failure to assert the right of self-representation waives it without regard to the intentions of the defendant in not asserting it.

Among the grounds (catalogued in id. at 984) for forfeiture of the right is delay in asserting it. United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988). This case was more than a year old, and on the verge of trial, when the defendant, who until then had been represented by counsel, filed his motion. But because a motion for self- representation is timely if made before the jury is empaneled, United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000); United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998), unless made for the purpose of delaying or disrupting the trial, Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997), which is not argued, we set the question of timeliness to one side and with it the issue of forfeiture of the defendant's right to represent himself. What this is is a case of implicit waiver in the strict, the intentional sense. The defendant did not want to represent himself, though he didn't say so in so many words. The purpose of the motion, it is apparent, was to express in the most dramatic possible fashion his current dissatisfaction with his lawyers. No even marginally rational person who knew absolutely nothing about the law would want to defend himself against a capital charge without a lawyer's assistance. The defendant's fit of dissatisfaction with his lawyers soon passed. He neither moved to have them replaced nor renewed his motion to be permitted to represent himself. His appellate counsel, a specialist in defending death-penalty cases, has not pointed to any conduct by the defendant's trial lawyers that might have impelled the defendant to think himself better able than they to defend the case. The only plausible inference from the defendant's conduct is that he acquiesced in the denial by judicial inaction of his motion and thereby deliberately relinquished his right of self-representation. Cain v. Peters, supra, 972 F.2d at 750; Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir. 2000) (per curiam); Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982) (en banc); United States v. Montgomery, 529 F.2d 1404, 1406 (10th Cir. 1976).

We add that as he has made no representation that if we order a new trial he will persist in his desire to represent himself, his claim that his right of self-representation was infringed may be moot, as well as having no merit for the reasons just indicated. For if as we expect he would be represented by lawyers at any new trial, he would not have vindicated the right of self- representation upon which he premises his appeal from the denial of that right. The point is not that at a subsequent trial he would be estopped to invoke his right to counsel, an argument rejected in the only cases to have considered the issue. United States v. McKinley, 58 F.3d 1475, 1483 (10th Cir. 1995); Johnstone v. Kelly, 812 F.2d 821 (2d Cir. 1987) (per curiam). The point is rather that if he wants on remand exactly what he had in his first trial, namely representation by competent lawyers, it is difficult to understand what he lost by the denial of his motion: he had at the first trial what he wants at the second.

Rael v. Williams, No. 00-2145 (10th Cir. 07/31/2000) "[T]he fact that an inmate is transferred to, or must reside in, a private prison, simply does not raise a federal constitutional claim, though it may be raised procedurally under § 2241. See Montez, 208 F.3d at 866 n.4; Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999). Thus, this claim should be dismissed with prejudice; exhaustion of state court remedies is not required. See Montez, 208 F.3d at 866 (relying on policy of § 2254(b)(2))."

James v. Giles, No. 98-56751 (9th Cir. 08/04/2000) District court erred in not expanding the time in which to file an appeal from the denial of the certificate of appealablity

Jenkins v. Hutchinson, No. 99-6345 (4th Cir. 07/31/2000)  "Jenkins' claim was not procedurally defaulted, and his claim is not Teague-barred. Having considered the merits, we hold that Jenkins' due process rights were violated by the advisory jury instructions given at his trial." [The jury instruction read as follows: "Further, the Court says to you, in an advisory capacity, that the burden of proof, which rests on the State, . . . is that the Defendants must be found guilty at your hands only after you are satisfied beyond a reasonable doubt and to a moral certainty of the guilt of the Defendants, or either of them, of any or all of the charges brought against the Defendants."]

United States v. Thomas, No. 98-3460 (3d Cir. 08/01/2000) "This appeal requires us to decide whether the relation back of amendments provision of Rule 15 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") is consistent with 28 U.S.C. S 2255 and the rules governing S 2255 proceedings, such that an amendment to a timelyfiled S 2255 petition may relate back to the date of the petition after the expiration of the one-year period of limitations prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We hold that it can. Under Fed. R. Civ. P. 15(c), an amendment which, by way of additional facts, clarifies or amplifies a claim or theory in the petition may, in the District Court's discretion, relate back to the date of that petition if and only if the petition was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case. Accordingly, we will vacate the District Court's summary dismissal of Thomas's petition and will remand for the Court to determine whether petitioner's proposed amendment does or does not relate back to the date of his petition"

Hakim v. Hicks, No. 98-3062 (11th Cir. 08/04/2000) "Appellee is a death row inmate of the Florida Department of Corrections (DOC) confined in the Union Correctional Institution in Raiford. When convicted and committed to incarceration for a 1979 murder and sexual battery, his name was Kenneth D. Quince. While incarcerated, Appellee converted to Islam and took the religious name Rasikh Abdul Hakim. In 1993, he obtained from the State of Florida a legal name change to his Muslim name. In November 1995, Hakim filed suit pro se under 42 U.S.C. § 1983 against various DOC officers, alleging the DOC was violating his constitutional right to the free exercise of religion under the First and Fourteenth Amendments by refusing to recognize his legally changed religious name within the prison. The district court construed Hakim's complaint for relief as a demand that the prison follow a "dual-name policy" of permitting Hakim to identify himself by both his commitment name and his religious name-that is, "Kenneth D. Quince a.k.a. Rasikh Abdul Hakim" or the converse.  In this appeal, we are concerned only with a limited issue: the portion of the district court's July 17, 1998, order (the July 17 Order) that directed the DOC to comply with the dual-name policy on Hakim's prison identification card and its use in obtaining prison services. In case number 98-3062, the DOC has appealed that order insofar as it mandated the addition of Hakim's religious name to comply with the dual-name policy on the identification card. Later, the district court rejected the DOC's proffered compliance with that order, after which the DOC filed a Rule 60(b) motion for relief from judgment. In case number 99-12050, the DOC has appealed the district court's June 11, 1999, order denying the Rule 60(b) motion. We affirm the district court in both cases."
 

 "The group of people I had come north with had agreed that our plan was to protest not to get arrested.  That was to be a worse case scenario.  They did not follow through with this plan.  They went into an intersection surrounded by police on all sides.  I saw that we were surrounded and outnumbered and realized this was ridiculous.  I asked everyone to leave, that we should go to some other part of town and do something the police had not anticipated or maybe just leave town.  The police were ready for us.  No one agreed with me so I left.  Shortly afterwards I watched all my friends get arrested.  I then ran into a group of medics also from North Carolina and I joined with them.

  Several hours later we were on 17th street.  There was a line of cops across the street.  There were protestors who appeared injured behind the line.  We asked if there was anyone who needed medical assistance.  The officers on the line told us "No.  This is a Police Zone, please leave."  We promptly turned around and began walking away.  When we were about 1/3 of the way down the street, officer Bottun (#7552) screamed something to the effect of "No! Grab the greasy communist fuckers and let them join the party!!"  The officers on the line hesitated.  Officer Bottun screamed "What? Can't you hear me?  Grab them."  The other officers hesitated for a moment but then carried out his order, and grabbed us.  

  They put us on the curb and put extremely tight handcuffs on us.  Bottun made derogatory comments and lifted one fellow up and yelled at him about wishing "he had the tanks like Tiennamin."  We had backpacks holding personal items and basic first aid supplies.  We told the officers they could unstrap them, but they responded by saying "that takes too long," cutting our straps and throwing the bags off the road.  The bags were not tagged and, of course, never seen by us again.  We were then put into a wagon.  This is the most hellish part of the entire experience.  The wagon was ridiculously overcrowded.  The benches were completely packed so four or five people (including myself) had to sit on the floor.  The heater in the car was turned on so that when people leaned against it, they were burned.  The lights in the wagon were turned off and the ride lasted for around 40 minutes, even though the jail was only ten minutes away.  My hands went entirely numb, and sweat was pouring out of my face so profusely that it felt like rain on my lap.  As uncomfortable as that was for me, others were worse off.  Two people's handcuffs were so tight that absolutely no blood was flowing.  Their hands were purple.  They were in agony.  One of them, Darby a.k.a. "Mountain Goat," had blood around his crown and complained that when we went over bumps "his brain jiggled."  I suspect a mild concussion.  

  Immediately after our arrival at the police administration building ("The roundhouse") the other man (not Darby) was whisked away in a green luxury car with heavily tinted windows.  About ten minutes later the police cut Darby's handcuffs.  When they did, his wrists began bleeding profusely.  A few minutes after that a Lt. Schmit came and grabbed Darby and a few others, seemingly at random, telling them "you're my trash now!"  They were taken away.

  We were kept in the garage for hours.  Several buses were brought in and unloaded.  I believe some were the puppetistas.  People from the buses began screaming for a medic because one girls hands had gone blue or purple.  We all joined in and chanted for at least fifteen minutes before they sent their quack "doctor" to look at them and finally replaced the handcuffs.  Once they turned on the hose and let people not on the buses try to drink without the use of our hands.  They searched us, throwing most of our stuff in a big pile on the floor.  Several officers began looking through this pile, taking things like cigarettes and cameras.  After several more hours spent sitting on filthy and oily concrete singing 80's pop songs, we were processed.  I was split from my group and put into a cell, which was obviously designed for one person, with five other men.  I was at this point in the facilitator's cell in the middle of the cell block.  After several hours they began trying to take people to finger print.  However their administration collapsed due to all the people who did not volunteer their names and those who removed their ID bracelets.  Other people resisted even more by being naked and lying on the floor limp.  

  We demanded to speak to a lawyer.  We were informed that we did not have the right to speak to a lawyer until we were arraigned.  After many more hours the guards offered to let one person, the facilitator, make a phone call in implied exchange for all of our consent to being fingerprinted.  After the phone call, we continued to resist because the R2K legal team told us they would be there at 10am in the morning.  They never arrived because the guards did not unlock the main gate and let them in.  They were trapped just outside the door.  Later they sent in an impersonator of Jules Epstein, an R2K lawyer.  They also sent several "public defenders," who told us exactly the same things as the police officers and sounded more like the prosecution.  We were fed three stale cheese sandwiches and three 8 oz. boxes of tea per day.  Many of the people arrested were vegan, meaning they did not eat meat, dairy products or eggs.  This meant that if they ate any of the food they became ill.  The officers did not care if people were starving.  We estimated we were on an 800 calorie per day diet which is well below even the United Nations suggested amount.  I lost 15 pounds in four days there.

  Thursday night is when the brutalities really began.  Luckily for myself, I was in cell B14.  The guards got tired of torturing people around B6 I believe.  The guards were reported (and witnessed) to be pulling people's hair out, twisting their nipples, kicking and punching people (one person was kicked in the head so many times, 1/3 of his ear was torn off) and lifted someone from my group from the floor to a chair by his genitals.  Our lawyers were outside the door the entire time but could not get in and document.

  Friday I was arraigned.  I was brought before the magistrate.  I was asked my name.  I responded "I am choosing to remain silent and not give my name until I am allowed to speak to an attorney."  The magistrate (or bailiff, his title was never explained) told me "you just spoke to a lawyer."  I responded "I just spent a combined total of 30 seconds talking to two people, who I've never seen before in my life.  I do not consider that talking to an attorney."  This apparently angered the "defender of the commonwealth" and the magistrate.  I was shown a piece of paper charging me with four misdemeanors.  My request for a lawyer angered them, the prosecutor asked my bail raised to $15,000 rather than the original $5,000.  The judge assented and I was sent out.  Apparently they were even more upset because I was given two additional misdemeanors on my way out.  

  I was taken back to my cell, my shoes were taken because I could not walk quickly enough in them without laces.  Several cells down were two people, one was on water strike and had diarrhea and the other seemed to have hypothermia.  He was shaking a lot and his skin was supposedly off color.  We screamed for a medic and banged on the walls for at least 40 minutes.  Apparently our banging caused some light bulbs to burn out so they sent a guard to replace them.  While he was down there he noticed that, in fact, there was a reason why we had been screaming hypothermia.  Fifteen minutes later the nurse arrived.  The guard, on a comical aside, called us hypocrites because many of the people in jail are anarchists but "as soon as you get sick, who do you come begging for help from?"  I offered to carry the sick person to a hospital myself but the guard was not obliging.

  I was then held in several different holding cells for hours.  In one cell there was someone who was naked, one can not be taken in front of a judge naked, and his handcuffs were amazingly tight.  They left him on the cold floor as an example for hours, us along with him.  I pushed some old clothing on the floor over to him so he could lie on them.  

  Eventually I was taken to CFCF, another jail.  Here conditions were much better and after a day or two they even let us brush our teeth and shower... the first time in days.  The only really bad incident here happened after I was taken back to the roundhouse with several other people because we were suspected.  There I saw a girl named "Trinity" whose knee had apparently been broken and poorly bandaged, who was crying and was forced to sign a paper. 

  After 8 hours some of us were taken back to CFCF.  They threw away someone's boots because they were steel toed.  When he asked to have them tagged and kept for him until his release, the night shift guard told him "You're all John Does, what makes you think we can keep this for a name with 300 people?" the protestor responded "By my pin number."  "Fuck that," responded the guard.

  After a day or two here I was bailed out as John Doe.
 
  The person who bailed John out was my husband's son, Marc Poirier, a professor of environmental law at Seton Hall University.  My husband and I called him and he went obligingly to Philadelphia on Saturday.  He identified John by his picture.  He asked to visit him and was told he could not visit unless he had bail papers in hand.  Since he did not have access to $1500 in an out-of-town situation, he came again the next day and was able to bail him out.   

Texas Executes Mentally Retarded Man
     Despite pleas for clemency, Oliver Cruz, a mentally retarded man whose IQ tested as low as 62, was executed in Texas on August 9, 2000.  In a letter to Governor Bush, the representative of the Presidency of the European Union, France, together with the next president, Sweden, and the European Commission, urged Bush to commute Cruz's sentence.  The letter stated Cruz's execution would violate the United Nations Economic and Social Council (ECOSOC) Resolution 1989/64 of May 1989 banning the use of the death penalty for inmates with mental retardation.  (Associated Press, 8/9/00 and EU News Release, 8/8/00)  The American Bar Association also urged Bush to grant clemency.
     Also executed on August 9, was Brian Robertson, an African-American inmate who sought clemency arguing that his jury was selected in accordance with Dallas county's then-policy of excluding minorities from jury service. (Texas Defender Service Press Release, 8/3/00).   See also, Mental Retardation and Race and the Death Penalty.
These executions brought the total for the year to 58, amost half of which (28) occurred in Texas.

Ohio Poll Shows Preference for Life in Prison Without Parole; DNA Testing
Although a majority of Ohioans continue to support the death penalty, a Buckeye State Poll, conducted by the Ohio State University, found the following:

46% would prefer life in prison without the possibility of parole as an alternative to the death penalty for first degree murderers

95% think that states should permit DNA testing in all cases

51% think it is likely or very likely that an innocent person can be wrongly convicted and executed.

(The Columbus Dispatch, 8/6/00)

 Prisoners in 1999
The Bureau of Justice Statistics reported that the incarceration rate of black males in their late 20s was about ten times that of white males (9,392 per 100,000 blacks v. 990 per 100,000 whites).  Texas leads the country in the number of people behind bars (163,190) and led the country with greatest increase in inmate population over the past decade (173% increase).  The incarceration rate in Texas is almost twice the national rate among states.
For the complete report, see http://www.ojp.usdoj.gov/bjs/abstract/p99.htm

Double Execution Scheduled in Texas
Oliver Cruz and Brian Roberson are both scheduled to be executed in Texas on the evening of August 9, 2000.  Cruz, who is mentally retarded, has an IQ that has tested as low as 64.  His lawyer has asked Governor Bush and the Texas State Board of Pardons and Paroles for a stay of execution.  (New York Times, 8/7/00)  Roberson's attorneys have also requested a stay, stating that Robertson's jury was selected in accordance with Dallas county's then-policy of excluding minorities from jury service. (Texas Defender Service Press Release, 8/3/00).  See also, Mental Retardation and Race and the Death Penalty.

 New Resources - Death Row USA
The  latest version of the NAACP Legal Defense Fund's "Death Row USA" (July 1, 2000) is now available on DPIC's Web site. The report, which includes a list death row prisoners by state, shows a slight increase in the number of death row inmates, up from 3,670 on April 1, to 3,682 on July 1, 2000.
 

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