Three capital cases are featured in this double issue. The Fifth Circuit panel opinion in Barrientes v. Johnson, offers a chilling reminder of how bad that circuit's precedent can be, reverses what had been the grant of habeas relief and denies on procedural default (amongst other grounds). In  Williamson v. Moore (11th Cir) relief is denied on a grab bag of  ineffectiveness and prosecutorial misconduct claims. Finally, in Cade v. Haley, a strong attack is made on the failure to present mitigating witnesses and  bad penalty instructions.

As this issue is already running long and late, the features section will return in the next edition.

4. A hearing on the merits

Finally, we must address two related arguments advanced by the State. First, the State argues at several points in its brief that the district court erred in making findings of fact related to the Sheriff's File without conducting an evidentiary hearing. The State then argues that even if Barrientes can establish cause and prejudice to prevent his claims from being procedurally barred, the district court still cannot reach the merits of his claims because, as previously stated, an evidentiary hearing is required, and Barrientes cannot establish the so-called "cause and actual innocence" required by 28 U.S.C. § 2254(e)(2) before a federal habeas court is permitted to hold an evidentiary hearing.⁽²⁰⁾See, e.g., Nobles, 127 F.3d at 423 n.33 (discussing the cause and actual innocence standard). We begin by deciding whether the district court should have conducted an evidentiary hearing in this case. Finding that it should have, we proceed to dispose of the State's § 2254(e)(2) argument.

The Rules Governing Section 2254 Cases in the United States District Courts provide guidance on the appropriateness of an evidentiary hearing in cases such as this. Rule 8(a) states:

If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require.
 

28 U.S.C. foll. § 2254 Rule 8(a) (1994). The decision whether to conduct an evidentiary hearing is left to the sound discretion of the district court, and we review its decision for an abuse of that discretion. See McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). We have stated before that when "[t]he district court ha[s] sufficient facts before it to make an informed decision on the merits of [the habeas petitioner's] claim" it does not abuse its discretion in failing to conduct an evidentiary hearing. Id. at 1060. 

Most often, this situation arises when the district court denies the petitioner relief without conducting an evidentiary hearing. But the rule also applies in a situation where the district court has sufficient facts before it and grants the writ without a hearing. See Hicks v. Wainwright, 633 F.2d 1146, 1150 (5th Cir. Unit B 1981) ("The State argues that the district court should have held an evidentiary hearing. An evidentiary hearing is necessary only when facts are at issue. When the only question is legal rather than factual no evidentiary hearing is needed."). If, however, sufficient factual development has not occurred, and the district court grants the writ, we have in the past remanded the case for a hearing. See Thomas v. Estelle, 582 F.2d 939 (5th Cir. 1978).

In this case, we agree with the State that the district court lacked sufficient undisputed facts to make an informed decision and therefore abused its discretion in failing to conduct an evidentiary hearing. An evidentiary hearing would have provided both sides an opportunity to present evidence regarding, inter alia, whether the copies appended to Barrientes's petition are what he claims them to be and whether they are exculpatory or impeaching in nature. Our normal course of action would be to remand this case for a hearing. Before doing so, however, we must determine whether a hearing is precluded by § 2254(e)(2).

Section 2254(e)(2) provides that when a habeas petitioner has "failed to develop the factual basis of a claim in State court proceedings, the [federal] court shall not hold an evidentiary hearing . . . unless the applicant" establishes so-called "cause and actual innocence."(21⁾ The State argues that § 2254(e)(2) precludes the evidentiary hearing that is needed in this case because Barrientes cannot, at the very least, meet the actual innocence prong of the standard established by §2254(e)(2). Barrientes responds that § 2254(e)(2) does not apply to his case, because he has not "failed to develop the factual basis of a claim in State court proceedings." 

We have previously addressed the question of whether a petitioner has "failed to develop" the factual basis of a claim in McDonald v. Johnson, 139 F.3d 1056 (5th Cir. 1998). In McDonald, as in this case, the habeas petitioner was denied an evidentiary hearing in state court. We held that "a petitioner cannot be said to have 'failed to develop' a factual basis for his claim unless the undeveloped record is a result of his own decision or omission." Id. at 1059; see also Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000) (applying the McDonald standard); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998) (same). 

Any question regarding the "failed to develop" standard was put to rest by the Supreme Court in Williams v. Taylor, 120 S. Ct. 1479 (2000). There, the Court stated that "[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. at 1488. The Supreme Court in Williams also linked the "failure to develop" inquiry with the cause inquiry for procedural default. See id. at 1494 ("Our analysis [of § 2254(e)(2)] should suffice to establish cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance."). In this case, if Barrientes establishes cause for overcoming his procedural default, he has certainly shown that he did not "fail to develop" the record under § 2254(e)(2). Accordingly, if the district court determines that Barrientes has established cause and prejudice for his procedural default, it should proceed to conduct an evidentiary hearing on any claim for which cause and prejudice exists. It should then revisit the merits of any such claim anew.(22⁾

 
A petitioner pursuing an ineffective-assistance claim under Strickland v. Washington must show both that "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S. Ct. at 2064, and "a reasonable probability [defined as one "sufficient to undermine confidence in the outcome"] that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068. In an Alabama case arising from acts committed in 1977, this means casting doubt on both the jury's decision to "fix the punishment at death" and the trial judge's decision to uphold it. See supra note 3. Both the former prong, deficient-performance, and the latter, prejudice, present mixed questions of law and fact reviewed de novo on appeal. See id. at 698, 104 S. Ct. at 2070. Because a petitioner must prove both prongs, neither the district court nor this court need consider both or address them in a particular order if one element is missing. See id. at 697, 104 S. Ct. at 2069. Although a district court's ultimate conclusions as to deficient performance and prejudice are subject to plenary review, we subject underlying findings of fact only to clear error review. See Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998).

We begin our review in this case by asking whether Cade has shown the requisite prejudice. A petitioner seeking to prevail on a Strickland claim must "affirmatively prove prejudice." Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Cade attempted to do this in the district court by presenting at the evidentiary hearing three new mental-health experts and five of his community acquaintances or family members whom he claims should have been called by counsel at the sentencing phase of his trial. The presentation of these or similar witnesses, Cade contends, would have resulted in an "accurate life profile" of Cade as a less culpable, mentally ill individual. Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995). The omission of that profile before the jury is, Cade further argues, sufficiently prejudicial to warrant relief under Strickland.

The district court rejected this argument, making four main findings of fact (supported by subsidiary findings) regarding aspects of Cade's case. It found, first, that the testimony of family and friends would not have overcome the testimony at trial of witnesses who had known Cade for a long time but did not present favorable testimony. Second, it found that Cade's own testimony at trial was too damaging to be salvaged by this sort of evidence. Third, it found that Cade's mental state was, in any event, already before the jury at sentencing and thus that an additional array of evidence about Cade's background and mental health would not have substantially changed the picture the jury had of him. Finally, it gave some weight to the "brutal nature of the act itself." (R.4-96 at 18.) We discern no clear error in these findings. They support a conclusion that Cade has not shown prejudice. Cade's Strickland claim therefore fails, and we need not consider the deficient-performance prong.

To explain this conclusion, we begin by focusing on what was known about Cade's mental health at the time of sentencing. In 1977, Cade's original counsel moved for a mental evaluation of Cade to determine his competence both to stand trial and be held criminally responsible for this homicide. The trial court granted the motion, and Cade was admitted for inpatient evaluation at the Alabama Department of Mental Health's Searcy Hospital. There, various mental health professionals evaluated him for about a month. At the end of this period, the hospital issued a report premised, first, on psychological and psychiatric testing and observation, and second, on neurological testing using an electroencephalogram and skull x-ray. The diagnosis was that Cade had an "[a]ntisocial personality with superficial passive- aggressive features." (State R.3-P19 at 44.) The report also concludes that Cade's intelligence is in the "low average" range. (State R.3-P19 at 43.)

When Joseph Hughes took over as counsel for Cade, he moved for an evaluation, at state expense, by a private physician or psychiatrist of Cade's choosing. This motion was denied. He then hired a psychiatrist at his own expense. That psychiatrist, Dr. Lopez, testified at both the first and second trials during the guilt phases. Lopez stated that Cade suffered from "organic brain syndrome" caused by blows to the head and alcohol consumption and that his mental capacity was diminished at the time of the crime. (State R.1-P2 at 271.) Lopez also agreed with the personality-disorder diagnosis by Searcy Hospital professionals and with their assessment of Cade's intelligence, and testified that the personality disorder was a product of Cade's childhood about which Cade could do very little. At the second trial, Hughes also called another expert, Mr. Corbitt, a clinical psychologist (masters-degree level) from the prison where Cade was confined, who testified that Cade was generally a well-behaved inmate, but that he exhibited some bizarre behavior and beliefs, was being medicated with the mild anti-psychotic mellaril and had been the subject of a sanity review board at the prison. In total, Cade's two lawyers sought the expertise of an entire state team of mental-health experts and two individual professionals, one hired at personal expense. Although their evaluations and testimony were primarily directed toward guilt- phase mental-health issues, we discern no clear error in the district court's finding that the testimony "allowed for broad discussion of evidence" that included a history of head injuries, drinking, and allusion to the role that the "culture" in which Cade was raised had on the development and fixity of his personality. (R.4-96 at 9.)

And, as the district court observed, Hughes closed at sentencing with an argument designed to place that broad discussion in the minds of the jurors as they made their sentencing decision:

The evidence is very clear that whether Clyde Cade is insane within the legal definition of that term or not, he is certainly not a normal individual. The reports throughout refer to him as containing certain mental deficits, being unable to conform to standards, being mentally retarded, being mentally ill, and whatever your conclusions are as to exactly what he is suffering from, he's just not like most of us that are walking around out here. I submit to you that it would be a very cruel system that would electrocute a man under those conditions. I'm not excusing what he's done in any way, and I've told you all the time that there is no excuse for that. It's just a tragedy that shouldn't have happened. But committing the further tragedy of killing another human being who is not mentally right is certainly not going to undo it, it's not going to bring Red Sizemore back to us, and all it's going to do in this case is just exercise some sort of vengeance on this man. I ask you not to do that.
(State R.2-P8 at 416.) See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (discerning no ineffective assistance in the mere decision to rely on guilt-phase mental-illness evidence at the sentencing phase without reintroducing the evidence). 

It is against this background that we must evaluate Cade's argument that testimony of the kind that he presented at the evidentiary hearing in the district court would have made a difference. See Holladay v. Haley, 209 F.3d 1243, 1250-51 (11th Cir. 2000) (concluding that it was not ineffective assistance for trial counsel to rely on the results of a month-long inpatient evaluation at a state hospital for competency to stand trial rather than pursue and present additional experts for sentencing). At the § 2254 hearing, Cade presented three new experts - Drs. Lyman, Halleck, and Kirkland - who offered testimony generally more favorable to Cade than the expert testimony offered at trial. Lyman, the chairperson of the psychology department at the University of Alabama, testified, with some "tentativeness" about the diagnosis, that Cade is a "paranoid schizophrenic" or has a "schizoaffective disorder." (R.5 at 40.) He also testified that performance testing indicated some neurological damage. Similarly, Halleck, a retired teaching psychiatrist at the University of North Carolina, referred to Cade's condition as "schizophrenia" combined with a "thought disorder." (R.6 at 272-73.) Both Lyman and Halleck also testified to a relationship between Cade's drinking and his mental illness, construing the drinking as a form of self-medication for mental illness, a causal factor in his mental illness, or both. Cade's final expert, Kirkland, another clinical psychologist, did not make a diagnosis that included schizophrenia. Instead, he described Cade as having "a delusional disorder of the paranoid type," "alcohol dependence that could have affected him in terms of brain behavior functioning," (R.5 at 132), and "an antisocial personality disorder," (R.5 at 154).

In addition to Lyman, Halleck, and Kirkland, Cade also called two younger sisters, a cousin, and two acquaintances from Cade's rural community. Together, these witnesses testified to an over- worked and under-schooled upbringing, and said that Cade had since childhood exhibited a bizarre tendency to laugh inexplicably and inappropriately, a disconnectedness from the world and conversation, and a tendency to ramble. They also expressed concern, pity, and love for Cade and noted that he did have mechanical and artistic talents that he shared with the community.

This additional expert and lay testimony might at some level have helped Cade's case for a lesser sentence. But our task is to determine whether this "missing" testimony is significant enough to "undermine [our] confidence in the outcome" of Cade's sentencing, Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, not to ask whether it would have had "some conceivable effect on the outcome of the proceeding," id. at 693, 104 S. Ct. at 2067. Our confidence in the outcome is not undermined. 

First of all, none of Cade's habeas experts examined Cade remotely near the time of the crime or second trial. Although they made use of the records underlying the hospital evaluation and added to them records from Cade's years of imprisonment, none of them saw Cade during the time periods at which the judge and jury would have evaluated him, and their observations are, at best, only weakly probative of the possibility for a favorable and credible diagnosis during those periods. More importantly, as the district court found, they painted only a mixed picture even at the evidentiary hearing, and they could have done no better for Cade in 1982. While Lyman and Halleck came to more significant diagnoses than antisocial personality disorder, Kirkland was unable to remove the lesser, personality-disorder diagnosis from his final conclusions. See Clisby v. Alabama, 26 F.3d 1054, 1056 & n.2 (11th Cir. 1994) (noting reasons why antisocial-personality- disorder diagnoses are not mitigating). And Dr. Rivenbark, the State's expert (a clinical psychologist) who examined Cade in 1990, fortified the conclusions of the trial experts by contradicting diagnoses of schizophrenia or delusional disorders and reporting indications that at least some of Cade's symptoms may have been the result of malingering. Finally, this expert testimony from the § 2254 hearing is not only internally mixed in its implications; none of it represents a dramatic departure from the basic point made at trial that Cade exhibited some real mental problems of uncertain nomenclature. The habeas presentation was richer and more complete, but, as the district court found, the debate it provokes was in the air at Cade's sentencing.

There are similar problems with the testimony of Cade's family and friends. To begin with, the family members who testified saw Cade only infrequently after childhood, and their knowledge about the day-to-day aspects of his adult life was limited. More importantly, while the testimony the laypersons gave provides some corroboration for the symptoms addressed by the experts, it also focuses attention on some negative traits. The witnesses confirmed Cade's history of drinking. Although this history adds credence to the experts' conclusions that Cade's mental condition was created or exacerbated by drinking, it also, as this court has held before in an assessment of trial realities, provides an independent basis for moral judgment by the jury. See Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999) ("[A] showing of alcohol and drug abuse . . . can harm a capital defendant as easily as it can help him at sentencing."); Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996) (holding that a "history of excessive alcohol and drug use . . . might have been harmful to [the petitioner's] case" even though offered for mitigation). The two community acquaintances also noted that Cade had been known to go into occasional rages. And most of the witnesses knew of his history of drifting in and out of jail, although none testified to visiting him during the in- jail periods. Finally, although all professed concern and affection for Cade, only one of his sisters (among all the lay witnesses) attended his second trial.

This ambivalent picture is corroborated by the PSI. There, the probation officer recognized Cade's deprived background but also concluded that Cade was not held in esteem or deep concern by the community. And Hughes's testimony during both the state and federal habeas proceedings, summarized by the district court's finding that trial counsel "sought background information on Cade from his family members and other community members, but . . . was not given what he considered to be helpful information," (R.4-96 at 15), is to the same effect.
 

Thus, we agree with the district court that Cade has not made a showing of prejudice sufficient to undermine our confidence in the outcome of sentencing hearings before the jury and judge. Cade has not overcome either the inconsistencies in the expert opinions at issue nor the double-edged quality of the lay testimony offered. He has not shown that an "accurate life profile" that Hughes might have painted by combining the lay testimony with that of even the full panoply of his § 2254 experts creates a reasonable probability of a different result: The profile shown is not mitigating to a degree sufficiently greater than the profile the jury actually had at sentencing. See Mills v. Singletary, 63 F.3d 999, 1024-26 (11th Cir. 1995); Marek v. Singletary, 62 F.3d 1295, 1298-1301 (11th Cir. 1995); Francis v. Dugger, 908 F.2d 696, 703-04 (11th Cir. 1990) (all holding the omission of testimony regarding difficult childhood experiences nonprejudicial). Cf. Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1514-15 (2000) (affirming the conclusion of both state habeas and federal district courts that prejudice was shown where omitted evidence included the actual child-abuse conviction (under extreme circumstances) of both the petitioner's parents); Thompson v. Dugger, 193 F.3d 1327, 1335-38 (11th Cir. 1999) (finding, after testimony of family members to the defendant's good character, that omission of additional evidence indicating childhood abuse was not prejudicial); Dobbs v. Turpin, 142 F.3d 1383, 1389-1390 (11th Cir. 1998) (affirming the district court's conclusion that the petitioner satisfied the prejudice prong where a finding of historical fact simply labeled his childhood "unfortunate" and there was no evidence of a potentially negative impact from the omitted evidence); Jackson, 42 F.3d at 1362-69 (prejudice found where omitted testimony from the family was unambiguously positive).

To prevail on a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Petitioner first argues that trial counsel's tactic not to present an argument of self-defense was deficient because it was not an informed decision made pursuant to an investigation. But, no absolute duty exists to investigate a particular line of defense. Counsel's decision not to conduct an investigation need only be reasonable. See Strickland, 104 S.Ct. at 2066 ("[C]ounsel has a duty ... to make a reasonable decision that makes particular investigations unnecessary."). This Circuit has refused to conclude that tactics "can be considered reasonable only if they are preceded by a 'thorough investigation' ". Williams, 185 F.3d at 1236-37.

"The reasonableness of a counsel's performance is an objective inquiry." See Chandler v. U.S., --- F.3d ---- (11th Cir.2000)(en banc); see also Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (noting that counsel's performance did not fall below "an objective standard of reasonableness"). The inquiry focuses on whether a reasonable attorney could have acted in the same manner as trial counsel did act at the trial. See Chandler, --- F.3d at ----; see also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc)("The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ...").

A reasonable attorney-in these circumstances-could have decided not to pursue a theory of self defense. First, in trial counsel's experience, self-defense arguments did not have a high rate of success in that jurisdiction.

Second, while two witnesses could have testified that the victim started the fight, both witnesses would also have testified that they saw Petitioner first disarm the victim, thereby undercutting a finding of self-defense for the homicide. See Pressley v. State, 395 So.2d 1175, 1177 (Fla. 3rd DCA 1981) ("[A] person may not use violence upon his assailant, after the assailant is no longer a threat and all danger is clearly past, and thereby claim to be acting in self-defense.").

Third, a reasonable attorney could have concluded that a theory of self-defense was inconsistent with Petitioner's own description of the killing. The reasonableness of an attorney's acts can depend upon "information supplied by the defendant" and "the defendant's own statements or actions." Strickland, 104 S.Ct. at 2066. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.; see also Chandler, --- F.3d at ----. Therefore, we cannot say that counsel's approach was unreasonable.²

Petitioner next argues that trial counsel unreasonably failed to interview or to depose witnesses who would have provided testimony to support a theory of reduced intent. In particular, Petitioner points to the testimony of Jack Green, Michael Haager, Charlie Jones, and Paul Williams.

Despite some beneficial statements these witnesses may have been able to provide on reduced intent, serious problems existed with their testimony. Green, Williams and Jones had made earlier statements which would have supported a finding of premeditation or a homicide that was not in self-defense or otherwise justified.³ Had trial counsel allowed them to testify at Petitioner's trial, this conflicting hurtful evidence most likely would also have been brought out.

Furthermore, Green had made inconsistent statements about whether or not he had witnessed the murder. He also admitted to having been convicted of at least seven crimes involving dishonesty. Because a reasonable attorney could have decided not to call non-credible witnesses, counsel's performance was therefore not unreasonable. See Chandler, --- F.3d at ----; see also Sinclair v. Wainwright, 814 F.2d 1516, 1521 (11th Cir.1987) (defense counsel not ineffective for failing to call witness whose credibility was questionable).

In addition, Green, Haager and Williams were unavailable to testify at the trial. Counsel had unsuccessfully tried to locate Green who had been released from custody before Petitioner's trial. Haager and Williams had escaped from custody after the murder and did not contact defense counsel until after Petitioner was convicted. Counsel cannot be said to be ineffective for failing to call an unavailable witness. See Elledge v. Dugger, 823 F.2d 1439, 1446-48, modified on other grounds, 833 F.2d 250 (11th Cir.1987).

Petitioner also contends that trial counsel did not properly challenge the state's case through cross-examination. Petitioner argues that inconsistencies existed between the trial testimony and interviews of certain witnesses and argues that, had counsel prepared better, counsel would have been able to impeach these witnesses and undercut the element of premeditation. Petitioner, in his state 3.850 petition, presented this issue to the state court and received a full evidentiary hearing. Trial counsel was called at the hearing as a witness, but he was not questioned about his preparation or about cross-examination techniques. Also, none of the witnesses who Williamson had listed as relevant to this issue were called at the hearing, even though they were available. The state court found that Williamson "fail[ed] to present anything of substance to support this claim" and, accordingly, rejected the claim. The Florida Supreme Court affirmed. See Williamson, 651 So.2d at 86-87.

The district court found this claim to be procedurally barred because Petitioner had failed to provide the state courts with an adequate opportunity to address the issue. The district court relied on the Supreme Court's decision in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In Picard, the defendant, unlike Petitioner, "presented all the facts" yet failed to raise the specific legal issue in state court. Id. at 513. Because the legal theory (upon which he relied in federal court) "was never brought to the attention of the state courts", the Supreme Court concluded that the defendant had failed to provide the state court an adequate opportunity to address the issue. See id. at 513.

In this case, we question whether Petitioner failed to exhaust his state law remedy. See generally Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir.1999) (discussing considerations for whether or not state remedies have been exhausted); Demarest v. Price, 130 F.3d 922, 932 (10th Cir.1997) (evidence presented to a federal court that places the claim "in a significantly different legal posture must first be presented to state courts"). We are inclined to think he just failed to prove the claim he advanced in his pleadings. A state court finding that a claim is unsubstantiated is entitled to a presumption of correctness in a federal court. See Buck v. Green, 874 F.2d 1578, 1581 (11th Cir.1989) ("Unsubstantiated means not proved" which amounts to a finding of fact by the state court that is presumed correct.) Because Petitioner did not prove that counsel's performance on cross-examination was deficient and did not demonstrate prejudice, federal relief was correctly denied on this claim, see Strickland, 104 S.Ct. at 2064, even if Petitioner did exhaust the state remedy.

Francis S. v. Stone, No. 97-2423 (2d Cir. 08/09/2000) This appeal challenges the constitutionality of a state court order recommitting a defendant for mental health treatment nine years after he entered a plea of not responsible by reason of mental disease or defect. It also requires consideration of the new standard applicable to a federal court's exercise of habeas corpus jurisdiction under 28 U.S.C. § 2254(d) (1994 & Supp. IV 1998), as recently interpreted by the Supreme Court, see Terry Williams v. Taylor, 120 S. Ct. 1495 (2000) ("Terry Williams").  Applying the restricted scope of habeas corpus review required by section 2254(d)(1), we affirm. (link unavailable)

Mendiola v. Schomig, No. 98-4031 (7th Cir. 08/10/2000) "Four state judges (one trial judge, three appellate judges) chose to believe Balderrama on the witness stand over Balderrama in the office of Mendiola's lawyer, and to believe two members of the bar rather than to credit a recantation by a fearful witness. That decision has not been undercut by clear and convincing evidence, so the judgment of the district court is affirmed."  The dissent here is well worth the read in its entirety, due to space limitations, however, cannot be reproduced here.

Kinder v. Purdy, No. 99-41459 (5th Cir. 08/09/2000)  Kinder has not demonstrated that his case falls within § 2255's savings clause, we affirm the district court's dismissal of his § 2241 petition.

Baker v. City of Blaine, No. 98-35378 (9th Cir. 08/09/2000)  Baker asserts that the district court applied the wrong standard of review when it deferred to the state court decisions. According to Baker, the district court should have reviewed de novo any state court holdings not supported by explicit citations to federal law. As noted above, the district court complied with the deferential standards required under the AEDPA consistent with the Supreme Court's later decision in Williams. The state court decisions to which the district court gave deference either cited directly to opinions of the Supreme Court of the United States or to cases which themselves rested on Supreme Court precedent, and the state court holdings were consistent with the reasoning of the cited cases. Thus, the district court did not err in applying the deferential standard of review.
 

USA v. Real, No. 98-2546 (08/11/00 8th Cir) On remand from the Supreme Court. Court reviews the Supreme Court's decision in Jones v. United States, 120 S.Ct. 2193 concerning the relationship of the arson statute and the Commerce Clause; case remanded for further findings on the burned building's connection with interstate commerce. 
 

Marquez-Perez v. Rardin  No. 98-56048 (8/10/2000 9th Cir) "[T]he record before us does not reflect that the Parole Commission or any Commissioner considered Marquez-Perez's request for reconsideration of his parole date, we vacate the district court's judgment, and remand for further proceedings. Some of the important facts on which the Commission based its decision to establish Marquez-Perez's parole date in the first instance have been eliminated from the pre-sentence report by stipulation. Still, insofar as we can determine from the record before us, the Commission failed even to consider Marquez-Perez's request for reconsideration, instead allowing that function to be performed by a "case analyst." While the Parole Commission enjoys wide latitude in structuring its workload, it may not delegate its statutory responsibilities in ways not authorized by Congress. See 18 U.S.C. S 4203(c) (repealed 1984) (explicitly defining the scope of permissible delegation). Delegation to a case analyst is not among the authorized procedures."
 

Daskalea v. District of Columbia, No. 98-7207 (D.C.Cir. 08/08/2000)  "Uncontradicted evidence at the trial of this case established the routine sexual abuse of women inmates by prison guards at the District of Columbia Jail. The plaintiff, Sunday Daskalea, suffered from a continuing course of such abuse, culminating in an evening during which "correctional" officers forced her to dance naked on a table before more than a hundred chanting, jeering guards and inmates. The District asks us to relieve it of all responsibility for this conduct, contending that the facts fail to establish the "deliberate indifference" necessary to sustain a municipality's liability for the acts of its employees. But "deliberate indifference" is precisely how any reasonable person would describe the District's attitude toward its women prisoners, and we therefore uphold in full the jury's award of $350,000 in compensatory damages. We are unable, however, to uphold the jury's punitive damages award because District of Columbia law bars the imposition of such awards against the District. And because Daskalea sued co- defendant Margaret Moore solely in her official capacity as Director of the Department of Corrections, plaintiff must look to the District alone for payment of compensation."

Dewalt v. Carter, No. 98-2415 (7th Cir. 08/11/2000) "DeWalt claims that various defendants used racially insulting and sexually explicit language when speaking to him, engaged in a racially motivated and retaliatory conspiracy to get him fired from his prison job, retaliated against him in a variety of other ways for filing a grievance against a prison guard, used excessive force in illegally punishing him, and ignored his complaints of discrimination and retaliation."
 

"Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus Review by Independent Federal Judges Is Indispensable to Protecting Constitutional Rights," by Stephen B. Bright, examines Texas's partisan judiciary and inadequate system of representation for poor defendants in capital cases. The article, soon to be published in the Texas Law Review, cites examples in which the elected members of the Texas Court of Criminal Appeals have upheld death sentences of inmates whose attorneys have had conflicts of interest, slept through trial, or missed crucial deadlines. (73 Texas Law Review __ (2000)) See also, Additional Resources
 

 Over 90% of Executions This Year in South
Led by Texas with 31 executions so far this year, 8 states in the south have performed 57 of the 62 executions in 2000.
 

Southern States			Other States
Texas Oklahoma Virginia Florida Alabama Tennessee Louisiana Arkansas Total	31 11 4 4 4 1 1  1 57		Arizona Missouri  California           Total	2 2 1           5

Poll Shows Declining Support for Death Penalty in Florida
A recent Sun-Sentinel poll found that only 45% of Floridians support the death penalty when offered the sentencing option of life in prison without parole, down from 60% last November.  In addition, support for life in prison without parole has risen from 16% last year to 28% this year.  (Sun Sentinel, 8/7/00)  See also, public opinion.

Georgia Supreme Court Grants Stay to Mentally Ill Juvenile Offender Scheduled for Electrocution in Georgia
    The Georgia Supreme Court granted a stay in the case of Alexander Williams to review whether it is unconstitutional for the state to execute Williams by the electric chair.  Earlier this year, the state changed its method of execution to lethal injection, but only for those sentenced after May 1, 2000.  See also, methods of execution.

    Georgia, which has not had an execution in over 2 years, is scheduled to execute Alexander Williams in the state's electric chair on August 24, 2000.  Williams was only 17 years old at the time of the crime. Williams has been diagnosed with schizophrenia, a psychotic disorder that affects the processing of thoughts and beliefs and nearly every level of functioning.  Prior to the crime, Williams began hearing voices and his father described him as being disconnected from reality and living in a "dream world."  Williams was represented by O.L. Collins, an attorney who could not successfully name two criminal cases, and who was later officially removed from the list of those qualified to handle criminal cases. (See Juveniles.)

    Williams is scheduled for a clemency hearing on August 22, 2000.  Under Georgia law, the Board of Pardons and Paroles has the exclusive power to commute his sentence to life in prison.  Former First Lady Rosalynn Carter has written to the Board expressing her concern in this case, as did Mariam Wright Edelman, President of Children's Defense Fund.  (American Bar Association, August 2000)  Visit the ABA Juvenile Justice Center's Web site for more information about the case and to read the letter from Mariam Wright Edelman requesting clemency for Williams.

    Amnesty International recently issued a news release and a report on the Williams case.  The report, "Abandoning Justice: The imminent execution of Alexander Williams, mentally ill child offender," notes that if Williams is executed, the United States will have executed more juvenile offenders in just over seven months than the rest of the world combined has executed in the past seven years. (Amnesty International News Release,  8/16/00).  The full report can be accessed on Amnesty International's Web site.

Geographic Disparities on New York's Death Row
Three of the six men on death row in New York were sentenced to death in Suffolk County, a low-crime suburban county.  According to defense attorneys and Suffolk District Attorney James Catterson, Jr., juries in Suffolk are conservative, and unlike other conservative counties, Suffolk is affluent enough and willing to prosecute capital cases.   (Newsday, 8/21/00)

Innocence Cases Reviewed on ABC's 20/20
ABC News recently highlighted the cases of former Oklahoma death row inmates Ron Williamson and Greg Wilhoit on the program 20/20. Williamson and Wilhoit met and became friends on Oklahoma's death row, after each had been sentenced to death despite their claims of innocence.  Working on Wilhoit's appeal was public defender Mark Barrett, who said Wilhoit's main problem was that his trial lawyer was the "town drunk."  Barrett also fought to have key prosecution evidence re-tested by 11 top forensic specialists, all of whom concluded that a bite mark on the victim's body had been incorrectly identified at trial as Wilhoit's.  Wilhoit was eventually granted a new trial and acquitted.
     Barrett also helped find critical mistakes in Williamson's case.  As with Wilhoit's case, bad lawyering and bad scientific evidence led to Williamson's conviction.  Twelve years earlier, at his trial, prosecutors used hair tested under a microscope to tie Williamson to the crime.  New DNA testing, however, found that hair found on the victim did not belong to Williamson and, after spending over 10 years on death row, he was released.  (ABC News.com, 8/19/00)  Since 1973, Oklahoma has executed 30 inmates and released 7 because of innocence.  This year Oklahoma, with 11 executions, is second only to Texas.  See also, Innocence.

Disparities Found in Ohio's Death Penalty
A recent report by the Office of the Ohio Public Defender found:

Compared with the national numbers from Columbia University Professor James Liebman's capital punishment study (see below), Ohio ranks last in cases reversed by higher courts.  Although nationally two-thirds of death-penalty convictions are reversed, the Ohio Supreme Court has granted relief in only 15 of the 184 death penalty appeals it has heard since Ohio reinstated the death penalty in 1981.

Nationally, post-conviction appeals accounted for about 10% of all reversals.  Yet, in Ohio, the state supreme court has yet to reverse a case on post-conviction.

 In addition, Columbia Alive reported:

46 of Ohio's 88 counties have never sentenced anyone to death.  Franklin County, the second largest county in the state, has sentenced 12 people to death, but the smaller Hamilton County has sent 49 people to death row.  "The geographical disparity is a concern that doesn't get enough attention nationwide," said Ohio State University Law Professor Doug Berman.

Half of Ohio's death-row inmates are black, though African-Americans make up only 12% of Ohio's population.  "There's no doubt that people would say, on a case-specific level, race should never be a consideration.  That a prosecutor should never sit down and say. 'Well, because the victim was white and the offender was black, I'm going to seek he death penalty,'" Berman stated.  "Yet, when we look at the patterns over time, it's an ugly number and people quite rightly complain."

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