In an issue packed with capital decisions, seven in all, not a single outright reversal of sentence is noted.   Proving the effects of how politics impacts on the death penalty, in Workman v. Bell the seven republican appointees of the Sixth Circuit voting as a block have forced the denial of a  rehearing en banc where the ultimate question was whether Workman is guilty of  murder.   The all white Fourth Circuit in Bacon v. Lee reverses, yet again, a grant of habeas relief for a black death row inmate;  here the district court had found that the counsel had been ineffective for failing to bring to the jury's attention that Bacon had aided in the apprehension of  another capital felon.   The Third Circuit in United States v. Hammer holds that a federal death sentence need not be reviewed by any appellate court  under certain conditions. In Lowery v. Anderson, the Seventh Circuit denies relief chiefly on use of prior testimony in the penalty phase of the trial. Peoples v. Haley  remands for technical compliance with  the Antiterrorism Act's appellate provisions (so that the district court can issue a COA instead of a CPC).  The Eighth Circuit in Roll v. Carnahan examines how much due process is required in a capital clemency proceeding.  Finally, in Caldwell v. Johnson, the Fifth Circuit takes another bite out of the common law prohibition against executing the insane holding there exists no substantive right to a defense psychiatrist at a competency to be executed hearing. 

Finally, a sneak preview of the Supreme Court's current term is offered as Bloody Monday and the start of the October 2000 term quickly approaches.

ARTUZ, SUPT., GREEN HAVEN v. BENNETT (No. 99-1238)
Habeas Corpus, Antiterrorism and Effective Death Penalty Act (AEDPA), Tolling Provision 

ATWATER v. CITY OF LAGO VISTA (No. 99-1408)
Fourth Amendment, Search and Seizure, Seat Belts, Custodial Arrest 

CITY OF INDIANAPOLIS v. EDMOND (No. 99-1030)
Fourth Amendment, Search and Seizure, Automobile Checkpoints 

CLEVELAND v. UNITED STATES (No. 99-804)
Mail Fraud, Video Poker License, Property 

DANIELS, EARTHY D. V. UNITED STATES (No. 99-9136)
Armed Career Criminal Act, Sentencing, Sentence Enhancement, Prior State Conviction 

FERGUSON v. CITY OF CHARLESTON (No. 99-936)
Fourth Amendment, Drug Testing, Warrantless Search, Pregnant Women 

GLOVER v. UNITED STATES (No. 99-8576)
Sixth Amendment, Ineffective Assistance of Counsel, Sentencing 

ILLINOIS v. McARTHUR (No. 99-1132)
Fourth Amendment, Search and Seizure, Securing Dwelling While Awaiting Warrant 

LOPEZ v. DAVIS (No. 99-7504)
Early Release, Voluntary Residential Drug Abuse Treatment Program, Discretion 

ROGERS v. TENNESSEE (No. 99-6218)
Ex Post Facto, Murder, Year-and-a-Day Rule 

SELING v. YOUNG (No. 99-1185)
Fifth Amendment, Sexually Violent Predator Statute, Double Jeopardy, Ex Post Facto 

TEXAS v. COBB (No. 99-1702)
Sixth Amendment, Right to Counsel, Waiver 

Following the Supreme Court's decision in Lindh, 521 U.S. at 336, 117 S. Ct. at 2068 (holding that the Chapter 153 amendments, which apply to all federal habeas petitions, are inapplicable to federal habeas petitions pending on the date of the AEDPA's enactment), the lower federal courts concluded that the pre-AEDPA procedure for obtaining a CPC applied if the petitioner's habeas petition and notice of appeal from the district court's denial of that petition were filed in the district court before April 24, 1996, the AEDPA's effective date. See generally Mincey v. Head, 206 F.3d 1106, 1130 & n.58 (11th Cir. 2000). Neither Lindh nor the lower court decisions that followed, however, clearly answered the question whether the AEDPA required an unsuccessful habeas petitioner to obtain a COA from the district court in order to appeal the denial of relief if the notice of appeal was filed after the effective date of the AEDPA. Compare Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir. 1997) (holding that COA is required in cases in which the notice of appeal is filed after the effective date of the AEDPA, even though the habeas petition was originally filed in the district court before that date), with Fuller v. Roe, 182 F.3d 699, 702 (9th Cir. 1999) (joining the majority of circuit courts in holding "that §§ 2254 and 2255 petitioners who filed their petitions in district court prior to AEDPA's effective date, regardless of whether they filed their notice of appeal before or after AEDPA's [effective date], do not need a certificate of appealability to proceed with their appeal") (quoting United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997)); Crowell v. Walsh, 151 F.3d 1050, 1052 (D.C. Cir. 1998) (same); Tejeda v. Dubois, 142 F.3d 18, 21-22 & n.4 (1st Cir. 1998) (same); Berrios v. United States, 126 F.3d 430, 431 n.2 (2d Cir. 1997) (same); United States v. Skandier, 125 F.3d 178, 179-82 (3rd Cir. 1997) (same); Hardwick, 122 F.3d at 936 (same); Arredondo v. United States, 120 F.3d 639, 640 (6th Cir. 1997) (same); United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997) (same). 

Earlier this year, the Supreme Court, in Slack v. McDaniel, __ U.S. __, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), answered the question, holding that, in a section 2254 or 2255 proceeding,
 

when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of the AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA's effective date.

Slack, __ U.S. at __, 120 S. Ct. at 1600.2 Pursuant to Slack, it is now clear that there should have been a COA in this case rather than a CPC, which raises the question whether this court should itself apply the COA standards or remand for the district court to do so.

As we held in Franklin v. Hightower, 215 F.3d 1196 (11th Cir. 2000) (per curiam):
 

[T]he grant of a CPC rather than a COA . . . is not fatal to the appeal. By applying AEDPA's standards to this appeal and issuing a proper COA (if warranted), this panel may "fix" the inadequacies of the present CPC. . . . And the Court in Slack remanded the case in part for the court of appeals to apply the appropriate standard, thus implying that defective leave to appeal neither dooms the appeal nor deprives the appellate courts of jurisdiction. See Slack, 120 S. Ct. at 1607.
 

Id. at 1199. In other words, in this situation, it is within the discretion of the court of appeals whether to apply the COA standards itself, or remand to the district court. Considerations of judicial economy will influence this decision.

In Hunter v. United States, 101 F.3d 1565, 1575 (11th Cir. 1996) (en banc), overruled in part on other grounds by Lindh, 521 U.S. at 322-23, 117 S. Ct. at 2061, the district court had granted a COA, but had neglected to indicate for which of the issues the applicant had made a substantial showing of the denial of a constitutional right, in accordance with section 2253(c)(3)'s command. We remanded the case to the district court so it could perform this statutorily mandated function. Hunter, 101 F.3d at 1584. We also remanded the case because the petitioner had raised numerous claims in his application for a COA and it was impossible for us to glean from the record which issue or issues the district court thought worthy of appellate review.3 Cf. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (limiting appellate review to the issue or issues specified in the COA).

We are faced in the instant appeal with a case similar to Hunter, and as with Hunter, remanding the matter to the district court is the proper course of action. See, e.g., Hunter, 101 F.3d at 1584 (noting that "we remand the case to the district court for compliance with the requirement of 28 U.S.C. § 2253(c)(3) that the certificate of appealability indicate which specific issue or issues satisfies the § 2253(c)(2) standard"); Edwards v. United States, 114 F.3d 1083, 1084-85 (11th Cir. 1997) (per curiam) (concluding that "[b]ecause appeals . . . filed after the effective date of the Antiterrorism and Effective Death Penalty Act are ineffective without a COA, [this appeal is] not before us on the merits" and remanding the case to the district court to grant or deny a COA); United States v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999) (stating that "we must remand the record for the district court to specify the issue or issues for appeal"); Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir. 1997) (stating that "we conclude that when a district court issues a CPC or COA that does not specify the issue or issues warranting review, as required by 28 U.S.C. § 2253(c)(3), the proper course of action is to remand to allow the district court to issue a proper COA, if one is warranted"); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1076 (6th Cir. 1997), overruled in part on other grounds by Lindh, 521 U.S. at 322-23, 117 S. Ct. at 2061 ("Because the certificate issued by the district court does not comply with [the requirements of 28 U.S.C. § 2253(c)], we believe it would be improper for us to examine the merits of Lyons's petition. Accordingly, we remand the case to allow the district court to issue a proper certificate of appealability consistent with this opinion."). But cf. Franklin, 215 F.3d at 1199 (holding that the later panel could "fix" the deficient CPC, which had been issued by a single circuit judge after the district court had denied a CPC, even though a COA rather than a CPC should have been issued).

To be faithful to the amended version of section 2253(c), and Supreme Court and Eleventh Circuit precedent, we vacate the district court's CPC and remand the case to the district court with the instruction that the court "indicate which specific issue or issues satisfy" the standard of a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2), (3). 

 In his complaint, Roll alleges the Missouri governor is a current candidate for the United States Senate in the November 2000 election, and one of the campaign issues is the granting of clemency petitions in death penalty cases. Roll alleges the governor is "politically restrained from being full and fair in considering [Roll's] clemency petition," and "there is no way [he] can get a fair consideration for clemency with the governor and the state attorney general . . . using this as a political stone for higher office." Roll also asserts that to execute him in an election year without establishing a board of inquiry under Mo. Rev. Stat. § 552.070 would deny him due process and equal protection and subject him to cruel and unusual punishment. Besides a stay of execution, Roll asks the federal courts to order Missouri to issue written rules for clemency procedures, give him access to the new procedures, and establish a board of inquiry to study the felony murder and death penalty cases over the past eighteen years.
 

We agree with the district court that the lawsuit fails to state a claim upon which relief may be granted. As the district court observed, although some minimal due process protections apply to a state clemency proceeding, see Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89, 290 (1998), the decision to grant or deny clemency is left to the discretion of the governor, see Mo. Const. Art. IV, § 7; Mo. Rev. Stat. § 217.800(1); id. § 552.070. Thus, Roll's complaint that the governor will not be objective fails. Unlike the plaintiffs in Young v. Hayes, 218 F.3d 850 (8th Cir. 2000), Roll does not contend the state has deliberately interfered with his efforts to present evidence to the governor in connection with his clemency application. Instead, Roll wants a board of inquiry to present evidence on his behalf. Appointment of a board of inquiry is also left to the governor's sole discretion, however, so Roll has no due process right to the appointment. Because Roll failed to allege the defendants interfered with his clemency proceedings or denied him minimal due process protections, Roll's lawsuit fails to state a claim upon which relief may be granted. Roll's request for clemency procedures is likewise meritless. 
 

   The State contends, on the merits of Bacon's (f)(8) claim, that the state MAR court's ruling rejecting this claim was not "contrary to" or "an unreasonable application of" the federal law governing the effec- tive assistance of counsel. It argues that the district court erred in con- cluding otherwise. 

The district court found that Bacon's counsel at the 1991 resentenc- ing hearing had failed to put forth available evidence that would sup- port the mitigating circumstance that Bacon aided in the apprehension of another capital felon, as recognized by N.C. Gen. Stat. § 15A- 2000(f)(8).2 The court found this failure "startling considering the vir- tual roadmap laid out by the North Carolina Supreme Court." The dis- trict court concluded that this failure was constitutionally deficient and also that there was a reasonable probability that, but for the fail- ure to present the evidence, a life sentence might have resulted. Accordingly, the district court ruled that Bacon had"not receive[d] effective assistance of counsel as guaranteed him by the Sixth Amendment" and that the state MAR court's decision rejecting Bacon's (f)(8) effectiveness claim was thus "contrary to or involved an unreasonable application of the clearly established Federal law as determined by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984)." 

In addressing the merits of Bacon's claim that he was deprived of the effective assistance of counsel by their failure to present evidence supporting the (f)(8) mitigating circumstance, we apply the standard of review established by the Antiterrorism and Effective Death Pen- alty Act of 1996. Because the state MAR court dismissed Bacon's claim on the merits (as well as on the basis of the state procedural bar), we confine our review to whether the court's determination "re- sulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.§ 2254(d)(1). Where, as here, a state court summarily rejects a claim without articulating reasons, its order nevertheless constitutes an "adjudicat[ion] on the merits" for purposes of § 2254(d). See Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998); Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998). But because we have "no indication of how the state court applied federal law to the facts," we must"necessarily perform [our] own review of the record." Cardwell, 152 F.3d at 339; see also Green v. Catoe, No. 99-30, slip op. at 4, 220 F.3d 220, ___ (4th Cir. Aug. 1, 2000). To prevail on his ineffective-assistance-of-counsel claim, Bacon must meet two well established requirements. First, he "must show that counsel's representation fell below an objective stan- dard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). This is a difficult showing to make because in assessing the reasonableness of counsel's course of action, "[o]ur review . . . is highly deferential" to counsel. Wilson v. Greene, 155 F.3d 396, 403 (4th Cir. 1998) (citing Strickland, 466 U.S. at 689). Second, he must demonstrate "a reasonable probability that, but for counsel's unpro- fessional errors, the result of the proceeding would have been differ- ent." Strickland, 466 U.S. at 694. 

Bacon contends that the North Carolina Supreme Court gave his attorneys a "virtual roadmap" of the evidence that would support an (f)(8) mitigating-circumstance instruction, when the court in Bacon I stated: 

The record reveals that on the night of the murder Bonnie Sue Clark told the police that mysterious assailants had opened her car door and slammed her head against the steer- ing wheel thus rendering her unconscious. She was unable to provide further information as to her assailants. After being examined at the hospital, she reiterated her exculpa- tory statements and reduced them to writing at the police station. See State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989). At approximately the same time, [Bacon] told police officers that: he had been in the automobile with Bonnie Sue Clark and the victim, Glennie Leroy Clark; the victim called him a "nigger" and pulled a knife on him; he grabbed the knife from the victim and stabbed him; and, all of this took place while Bonnie Sue Clark was in the vehicle. It was at this point that the investigators first began to focus on Bon- nie Sue Clark as a possible accomplice in the murder. Obvi- ously if [Bacon's] version of the events was proven true, then Bonnie Sue Clark was lying. [Bacon's] story did not turn out to be totally accurate with respect to motive, intent, etc. However the fact that defendant, not mysterious assail- ants, did the killing was sufficient to arouse the suspicions of the investigating police officers as to Bonnie Sue's role in this killing. This is sufficient to submit the mitigating cir- cumstance of aiding "in the apprehension of another capital felon" to the jury. It was error not to do so. 

Bacon I, 390 S.E.2d at 335 (emphasis added). 

The court's decision in Bacon I, however, clearly did not deal with attorney error but with the trial court's instructional error. The con- duct of Bacon's attorneys at the resentencing hearing, accordingly, must be judged not in light of the circumstances reviewed by the North Carolina Supreme Court in Bacon I, but on the particular cir- cumstances of the resentencing hearing. As the Supreme Court has emphasized, "no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel. Rather, courts must judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, and judicial scrutiny of counsel's perfor- mance must be highly deferential." Roe v. Flores-Ortega, 120 S. Ct. 1029, 1034-35 (2000) (internal citations and quotation marks omit- ted). 

The evidence that the North Carolina Supreme Court viewed as supporting the (f)(8) instruction had been introduced in the first sen- tencing hearing by the prosecution through the testimony of the police officers who investigated the murder. At resentencing, however, the prosecution took a different tack, choosing not to call the officers as witnesses. This altered the strategic landscape, and Bacon's attorneys could have considered that the officers, if called to the stand, would provide testimony that was more damaging to Bacon's cause than helpful. 

Weighing the danger of damaging testimony by the police officers, Bacon's attorneys also had to consider that the evidence supporting the (f)(8) mitigating circumstance might provide only a slight benefit. While the North Carolina Supreme Court held that the form of "aid" that Bacon provided would support a jury instruction, it was by no means an unequivocal demonstration of a purposive effort by Bacon to assist in the police investigation. Bacon at first insisted that Bonnie Sue was "not involved." It was only after Bonnie Sue had received Miranda warnings and Bacon had been confronted with additional evidence that Bacon admitted that he and Bonnie Sue had "planned to get rid of" Glennie Clark. The aid Bacon gave before police suspi- cion was trained on Bonnie Sue came from the fact that he confessed to his own involvement and gave an account of the murder that was inconsistent with the cover story upon which he and Bonnie Sue had agreed. Bacon's attorneys could reasonably have concluded that the jury would give little weight to this inadvertent form of assistance in apprehending Bonnie Sue. 

In view of the tactical considerations confronted by counsel, we cannot conclude that their failure to present evidence of the (f)(8) mit- igating circumstance at Bacon's resentencing hearing fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Accordingly, the state MAR court's denial of this claim was not contrary to, or an unreasonable application of Strickland, see 28 U.S.C. § 2254(d)(1), and the district court's order denying sum- mary judgment on this claim and granting Bacon the writ of habeas corpus must be reversed. 

It is, of course, immediately evident that section 3595 authorizes but does not explicitly require an appeal by a defendant sentenced to death. The absence of such a requirement would seem to establish clearly that a defendant is not required to appeal a sentence of death. After all, in general, parties to federal litigation, whether civil or criminal, need not appeal adverse verdicts. Thus, if Congress had intended to reverse this usual practice surely it would have said so. Moreover, in Whitmore v. Arkansas, 495 U.S. 149, 166, 173, 110 S.Ct. 1717, 1729, 1733 (1990), Justice Marshall in his dissenting opinion indicated that "[s]ociety's overwhelming interest in preventing wrongful executions is evidenced by the fact that almost all of the 37 States with the death penalty apparently have prescribed mandatory, non-waivable appellate review of at least the sentence in capital cases." The Supreme Court decided Whitmore in 1990, yet when Congress enacted section 3595 in 1994 (see Pub. L. 103-322, Title VI, S 60002(a), 108 Stat. 1967), it did not in terms require mandatory review of a death sentence although Justice Marshall's dissent spelled out the state practices.

Amicus seeks to overcome the absence of a requirement for an appeal in section 3595 by a strained reading of the section. Section 3595(a) provides initially that"[i]n a case in which a sentence of death is imposed, the sentence shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal must be filed within the time specified for the filing of a notice of appeal." The first quoted sentence plainly establishes as a prerequisite to the exercise of appellate jurisdiction that the defendant appeal. While it is true that the next sentence provides that "[n]notice of appeal must be filed" within the specified time, that provision is a limitation on when a defendant may appeal rather than an affirmative command to him to do so and even the able amicus curiae does not contend otherwise in his brief. After all, if Congress had intended that there be a mandatory review of death penalty proceedings it had no need to provide that this sentence was "subject to review . . . upon appeal of the defendant." Instead, it simply could have provided for automatic review, as do many (but not all) states.

Amicus seeks to overcome the plain import of section 3595 by pointing out that section 3595(b) provides that the "court of appeals shall review the entire record in the case" and that section 3595(c)(1) provides that the court of appeals "shall address all substantive and procedural issues raised on the appeal of a sentence of death, and shall consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under [18 U.S.C. S] 3592." Amicus notes that the Act charges the Court with making these determinations even if the death-sentenced prisoner has not raised them. These provisions, however, are not an independent source of appellate jurisdiction. Clearly, they do nothing more than specify the scope of review when an appeal is filed. Along the same lines, section 3595(c)(2), which provides that upon making certain findings the court of appeals shall remand the matter to the district court, becomes operative only when appellate jurisdiction is invoked in the first instance.

For all the foregoing reasons we conclude that we have discretion to either grant or deny Hammer's motion to dismiss his appeal and that there is no reason attributable to the text of the Federal Death Penalty Act to exercise our discretion under Rule 42(b) to deny Hammer's motion to dismiss the appeal.*fn5

We have considered in this regard amicus's argument that to avoid a conflict with the Eighth Amendment the Federal Death Penalty Act "precludes a capital defendant from waiving direct appellate review of his death sentence." Br. at 4. For a number of reasons the Eighth Amendment argument is unavailing. The death penalty is not inherently a punishment that violates the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 176-87, 96 S. Ct. 2909, 2926-32 (1976). While the Supreme Court has discussed the importance of making appellate review available to defendants, see, e.g., Parker v. Dugger, 498 U.S. 308, 32, 111 S.Ct. 731, 739 (1991) (discussing the "crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally"), it never has suggested that this right cannot be waived. Cf. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871 (1984). In Harris, the Court upheld the California death penalty statute which had no provision for proportionality review. It noted that several, but not all, of state death penalty statutes provided for (1) proportionality review; and (2) an automatic appeal. It concluded that the former was not constitutionally necessary, and made no comment about the latter. See id. at 44-45, 104 S.Ct. at 876. Furthermore, the Court never has allowed that society at large has a constitutionally cognizable interest in appellate review of capital sentences. See Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, (rejecting third party attempt to raise appeal on defendant's behalf); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976) (same).

 Here, in an effort to secure Bennett's testimony for the second trial, the prosecutor had Bennett transported from the state prison in which he was incarcerated to a county jail so that he could be available to testify. He also attempted to talk with Bennett before calling him as a witness, and kept calling him as a witness during the trial, even though Bennett refused to testify and had been held in contempt of court. What the prosecution did not do was, as the trial judge suggested, threaten to revoke Bennett's plea agreement and try him for murder, or threaten to try him for obstruction of justice. The Supreme Court of Indiana found that Bennett "was amenable" to these tactics and Lowery suggests that because they might have worked, the State did not act reasonably or in good faith in attempting to obtain Bennett's testimony for the retrial. The District Court disagreed, saying:

[t]he fact that other steps the prosecution did not take might also have been reasonable does not show either that it failed to make a reasonable, good faith effort to secure Bennett's testimony, or that Lowery's Sixth Amendment rights were violated by use of Bennett's testimony from Lowery's first trial. Lowery, 69 F.Supp.2d at 1093.

We agree. Although the record is silent as to why the prosecution chose not to threaten Bennett with further prosecution or charge him with a crime, there is no requirement that it do so and such decisions are well within the prosecution's discretion. Johnson v. State, 675 N.E.2d 678, 683 (Ind. 1996); LaMotte v. State, 495 N.E.2d 729, 733 (Ind. 1986). We decline to impose a rule imposing the court's will upon the prosecution and we fear that to do so would violate the separation of powers.

The fact that more, theoretically, could have been done to persuade Bennett to testify does not persuade us to reach a contrary result. If we adopt Lowery's position and mandate that the prosecution threaten recalcitrant witnesses, or possibly even charge them with minor crimes, where do we stop? A bright line test is not possible in cases such as this. We believe the better rule is to consider the totality of the circumstances and determine reasonableness and good faith on a case by case basis. In this case we find that the prosecution did make a good faith effort to secure Bennett's testimony for the retrial.

We understand the passion with which Lowery presents his argument, especially in light of the inconsistent statements Bennett made between the first and second trials. During that interim, Bennett wrote letters to state officials and to Lowery, saying in one that there were three people involved in the crime and, in another, that Lowery was not present when the crime occurred. In each instance, he offered to exchange information for a further reduction in his sentence.*fn1 Lowery argues that he was irrevocably prejudiced by the prosecution's failure to procure Bennett as a live witness so that he could cross-examine him with this new information. He asks that we review this claim under the harmless error standard of Chapman v. California, 386 U.S. 18 (1967), and says that once we do reversal is mandated.

Under the Chapman harmless error standard, the government has the burden of demonstrating that the error was harmless beyond a reasonable doubt. Id. at 22. We have reviewed and rejected that argument and instead adopted the standard set forth by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), which holds that an error is harmless unless the defendant can show that it had a "substantial and injurious effect or influence in determining the jury's verdict." Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. den'd, 516 U.S. 1041 (1996). See also Fleenor v. Anderson, 171 F.3d 1096, 1101 (7th Cir. 1999), cert. den'd, 120 S.Ct. 215 (1999) (applying the Brecht standard in a capital case). The Brecht standard recognizes that an earlier court has already reviewed the claimed error under the heightened Chapman standard and, therefore, permits a lower level of scrutiny on appeal. Here, the "new evidence" upon which Lowery relies developed before the second trial. His claims thereafter could have been reviewed by the Supreme Court of Indiana on direct appeal and on petition for collateral relief or by the U.S. District Court on the petition for writ of habeas corpus. They were not, however, because the letters and testimony regarding Bennett's alleged recantation were not offered at trial. The Supreme Court of Indiana, in refusing to review the alleged error said "the court did not have an opportunity to rule on the offer of the letter, and there is no error presented for our review." Lowery, 478 N.E.2d at 1223-24 (Ind. 1985). Thus, contrary to Lowery's assertion, we believe that the courts before us have had an opportunity to address the claimed error and have rejected it, finding that it was either waived or did not present an issue of manifest injustice requiring the reversal of his conviction. We therefore believe the rationale behind Brecht has been satisfied and apply its standard of review to this case.

We find that Lowery has not met that burden. The trial court indicated that Lowery could inform the jury about Bennett's letter and statements, but Lowery's attorney never attempted to do so. Lowery, 478 N.E.2d at 1223. Furthermore, the jury was informed that Bennett was testifying pursuant to a plea agreement which, as the State points out, could make the jury skeptical of his testimony anyway. But most importantly, we believe that Lowery fails to meet his burden of proving that the claimed error had a "substantial and injurious effect or influence in determining the jury's verdict" because of the wealth of corroborative information presented by the prosecution. Not only did Bennett testify that it was Lowery who shot the Thompsons and Ms. Brown, Lowery himself confessed those facts to various police officers and his cellmate and those statements were presented to the jury. Ms. Brown also testified and identified Lowery as her attacker and as the murderer of the Thompsons. And, finally, there was the testimony of Lowery's ex-wife, Barbara. Our review of the entire record in this case convinces us that any error (and we believe there was none) in the admission of Bennett's prior testimony was harmless.
 
 

Caldwell points to Ake v. Oklahoma, 470 U.S. 68 (1985), in support of his contention that he is entitled to medical assistance of his own choosing.  The extension of Ake principles to a Ford hearing on competency to be executed aside, Ake itself disavowed any such right.  Id. at 83.

 His assertion that he is entitled here to Ake's assured access to medical assistance in evaluating and preparing a defense has more purchase, but ultimately is equally without merit.  Ake v. Oklahoma held that an indigent criminal defendant who demonstrates "that his sanity at the time of the offense is to be a significant factor at trial" has a due process right to "a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense."  Id.  This right extends to the sentencing phase of trial.  It did not by its terms or reasoning extend to a Ford type hearing.  Safeguards rooted in the Constitution's protection of a fair and accurate trial are not necessarily implicated by Eighth Amendment prohibitions of cruel and unusual punishment.  In Ford v. Wainwright, Justice Powell emphasized this distinction: "[T]he only question raised is not whether, but when, his execution may take place.  This question is important, but it is not comparable to the antecedent question whether petitioner should be executed at all.  It follows that this Court's decisions imposing heightened procedural requirements on capital trials and sentencing proceedings do not apply in this context."  477 U.S. at 425 (citations and footnote omitted). 

 Under 46.04 Judge Meier was not required to appoint medical experts absent a substantial showing by Caldwell, a showing Caldwell conceded he could not make assertedly for want of funds to engage medical assistance.  Judge Meier, however, proceeded to appoint two experts.  Caldwell did not object to the appointment of  experts.  Rather, he objected to the fact that Dr. Grigson was one of the two experts chosen.  Then Caldwell refused to allow either of the two to examine him. 

All else aside, there are overarching flaws in Caldwell's request for stay of execution.  Caldwell is in no position to claim that Texas has prejudiced his ability to trigger the 
appointment under Art. 46.04 of two medical experts to examine his competency. That was done.  Nor does he point to any impediment imposed by the state to an adversarial test of the experts' reports.  Ultimately, Caldwell's claim shrinks to claims that he was entitled to an expert of his choice or an expert to assist in any challenge of the opinion of the experts.  This is no more and no less than a request that Ake be extended to Ford proceedings.  In any event, such a new rule is not available in his federal habeas challenge to a state decision.  Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989); 28 U.S.C. § 2254(d)(1). 

 We are persuaded that Art. 46.04 is valid, both facially and as applied.  We reject a certificate of appealability and refuse to stay execution. 

Goins v. Angleone, No. 99-13 (4th Cir. 08/31/2000) "On appeal, Goins contends that the district court erred in dismissing his petition for habeas corpus relief, asserting that: (1) errors in the jury selection process during the guilt phase of his murder trial violated his rights under the Sixth and Fourteenth Amendments; (2) the prosecution failed to produce results of a polygraph examination in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) evidence of his parole eligibility was erroneously excluded; (4) the performance of his counsel at trial and on direct appeal was constitutionally defective; (5) he was impermissibly excluded from critical stages of his trial; and (6) the district court erred in denying his motions for discovery and an evidentiary hearing."

Harris v. Day, No. 98-30273 (5th Cir. 08/30/2000) "Harris  appeals the district court's dismissal of his petition for habeas corpus relief under 28 U.S.C. §2254 based upon ineffective assistance of appellate counsel. For the reasons set forth below, we find that Harris was constructively denied effective assistance of appellate counsel for his direct appeal, when only an "errors patent" brief was filed on Harris' behalf and his counsel subsequently withdrew via an Anders brief that failed to mention any arguable issues of appeal."

DeRoo v. United States, No. 99-1188 (8th Cir. 08/31/2000)." DeRoo filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence based on ineffective assistance of counsel.   Citing to the plea agreement in which DeRoo stated that he waived all rights to contest the conviction or sentence in any post-conviction proceeding pursuant to section 2255, the District Court summarily denied the motion. DeRoo appeals. We affirm in result only, vacate his sentence on other grounds, and remand for resentencing."

Green v. White, No. 99-17653 (9th Cir. 09/05/2000) "The one-year time period begins to run in accordance with individual circumstances that could reasonably affect the availability of the remedy, but requires inmates to diligently pursue claims." Miller, 141 F.3d at 978 (internal citations omitted) (citing Calderon v. United States District Court, 128 F.3d 1283, 1289 (9th Cir. 1997) (en banc)). We therefore hold that the one-year limitation does not per se render the writ of habeas corpus inadequate or ineffective"

Torres v. Prunty, No. 99-55662 (9th Cir. 09/08/2000) "The district court concluded that Torres's due process rights were violated when the state trial court failed to hold a hearing to determine whether Torres was competent to stand trial, despite considerable evidence suggesting that he was not. See Pate v. Robinson, 383 U.S. 375, 385 (1966)."

Hernandez v. Caldwell, No. 98-7640 (4th Cir. 08/28/2000) "Hernandez petitioned for a writ of habeas corpus under 28 U.S.C.§ 2254, alleging that her inability to communicate effectively in English rendered her guilty plea and sentence on state drug charges constitutionally defective. The district court dismissed the petition as untimely, concluding that AEDPA's one-year statute of limitations (codified at 28 U.S.C. § 2244(d)(1)) expired between the day the state court denied Hernandez's motion for appropriate relief and the day she petitioned the state court of appeals for review of that decision. Relying on our recent precedent, we hold that the statute of limitations should have been tolled during that time. On the new question, we hold that the computation of the limitations period is governed by Fed. R. Civ. P. 6(a), with the result that Hernandez's federal habeas petition was timely filed on the very last day allowed. We therefore reverse and remand for further proceedings."

Marsh v. Soares, No. 00-1141 (10th Cir. 08/31/2000) "The district court dismissed the petition as time barred and denied a certificate of appealability. We grant a certificate of appealability and affirm."

Femeder v. Haun, No. 99-4082 (10th Cir 08/28/2000) "We conclude that the district court erred in determining that Utah's Internet notification scheme violated the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution."

Scott v. Baldwin, No. 99-35132 (9th Cir. 09/01/2000) "Scott, an inmate at the Eastern Oregon Correctional Institution, brought a petition for a writ of habeas corpus under 28 U.S.C. S 2254. Scott claims that the Oregon Board of Parole and Post-Prison Supervision's (the Board) denial of biennial reviews of his status as a "dangerous offender" violates the Ex Post Facto Clause. The district court denied Scott's petition. Scott appealed to this court; we affirm the district court's order."

Robertson v. Morgan, No. 98-4150 (6th Cir. 09/14/2000) "Double jeopardy can be a concern if a defendant is adjudicated once for an offense at the juvenile level and again as an adult for the same offense. That did not happen here. The elements comprising the offenses of felonious assault and aggravated robbery in Ohio are distinct. The amenability issue was only litigated once, and there was sufficient evidence in the record to support binding over Robertson for adjudication as an adult. For these reasons, the judgment of the district court denying defendant's petition for habeas relief is affirmed."

Hendrickson v. Norris, No. 99-3204 (8th Cir. 09/07/2000) "The issue on appeal is whether Hendrickson's constitutional rights were violated when the trial judge ruled that the State could impeach a psychologist's testimony at the second trial using Hendrickson's illegally obtained statement and her testimony at the first trial. Agreeing with the district court that any such error was harmless, we affirm."

Lile v. McKune, No. 98-3292 (10th Cir. 09/05/2000) "Though not part of his original sentence, the Kansas Department of Corrections recommended in 1994 that Plaintiff participate in the Sexual Abuse Treatment Program  [SATP or program] because he had been convicted of sex offenses and added it to his Inmate Program Agreement [IPA]. To be admitted into the program, Plaintiff was required to disclose his sexual history, including the crime of which he was convicted and any uncharged sexual offenses. He refused to make any such admissions and, on October 11, 1994, refused to sign his amended IPA. . . . Because we have determined that the Kansas SATP unconstitutionally violates Plaintiff's Fifth Amendment right against self-incrimination, his appeal on the Fourth Amendment claim is moot. We therefore vacate the portion of the district court's judgment granting summary judgment to Defendants on the Fourth Amendment claim and remand to the district court with instructions to dismiss that claim as moot."

United States v. Steverson, No. 99-5586 (6th Cir. 09/07/2000) We "reject Steverson's ineffective assistance claim to the extent that it is based upon counsel's failure to object to the introduction of Steverson's state felony convictions." 

Alvarez v. Boyd, No. 99-3175 (7th Cir. 08/29/2000) "Alvarez brought this sec. 2254 motion, arguing that the cumulative effect of two evidentiary rulings denied him a fair trial. The district court denied relief but granted a certificate of appealability. This was a close case with each side presenting very conflicting evidence. Nevertheless, a jury resolved the difficult questions and found him guilty. We conclude he received a fair trial, and so we affirm."

Paredes v. Atherton, No. 00-1016 (10th Cir. 08/28/2000) "[C]ertificate of appealability [issued and]is limited to the procedural issue of whether the requirement of exhaustion of state court remedies should be waived in this case because of the state's delay in dealing with petitioner's request for post-conviction relief. "
 
 

Davis v. Streekstra, No. 00-2503 (7th Cir. 09/07/2000) "Defendants want us to think of sec.1997e(a) as establishing a right not simply to prevail but also to be free from litigation, along the lines of double jeopardy, see Abney v. United States, 431 U.S. 651 (1977), absolute or qualified immunity from suit, see Helstoski v. Meanor, 442 U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S. 731 (1982); Mitchell v. Forsyth, 472 U.S. 511 (1985); and sovereign immunity under the eleventh amendment, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). If this is the right way to conceive an exhaustion requirement, then public officials have been asleep at the switch for decades, for the United States Code is chock full of exhaustion rules (think not only of exhaustion required before a prisoner initiates a collateral attack but also of administrative exhaustion before suit under the Administrative Procedure Act, employment-discrimination laws, the Federal Tort Claims Act, and comparable statutes). None of these has led to a recognized right of immediate appeal. So clear is this that, until now, no court of appeals has been required to deal in a published opinion with a contention that rejection of an exhaustion argumeny is immediately appealable."

Boivin v. Black, No. 99-2085 (1st Cir. 09/05/2000) "This appeal raises the novel question of whether the "monetary judgment" cap [of the PLRA] applies to nominal damage awards. Contrary to the district court, we hold that it does. We proceed to reject the plaintiff's alternative argument that the cap, so construed, is unconstitutional. Consequently, we set aside the lower court's order granting a more munificent counsel fee than the statute allows and remand with instructions to reduce that award to $1.50."

Ghana v. Holland, No. 97-7043 (3d Cir. 08/29/2000) "Appellant Emory M. Ghana filed a Bivens action against the warden of the federal prison in which he was then housed claiming the warden had violated his First Amendment rights. The District Court dismissed the suit for failure to exhaust administrative remedies. This appeal requires us to decide whether the exhaustion requirement contained in S 803 of the Prison Litigation Reform Act ("PLRA") and codified at 42 U.S.C. S 1997e(a) applies to cases pending on the date of enactment of the statute."

Defense Challenges Drug and Alcohol Addicted Attorney
    Texas death row inmate Joe Lee Guy is appealing his conviction because his trial attorney, Richard Wardroup, was "in the throes of drug and alcohol addiction," and had been "suspended from the practice of law no fewer than 5 times."  Guy's petition also included statements from every member of Guy's trial team swearing that Wardroup was using drugs and alcohol during the trial and some stated that he had trouble staying awake in court following drinking binges.
    A former employee of the attorney, Regina Young, said that she "personally participated in cocaine use with Mr. Wardroup while in transit to Plainview" during Guy's trial.  "During the guilt/innocence portion of trial, I attended court on approximately 3 days," Young said, "Mr. Wardroup and I did approximately 3 to 4 lines of cocaine each while driving from Lubbock to Plainview on one of those mornings."  At one point, Wardroup was unable to file an appeal for Guy because his law license was under suspension.
    Guy and two others were convicted of the 1993 robbery and shooting of a Plainview, Texas grocer.  However, despite reports that Guy served as the lookout and was not the triggerman, only Guy was sentenced to death.  (Lubbock Avalanche-Journal, 9/10/00)
 

Stay of Execution Granted to Hundreds of Caribbean Death Row Prisoners
A decision by the Judicial Committee of the Privy Council, the final court of appeals for such commonwealth nations as Jamaica, Trinidad, the Bahamas and Barbados, resulted in a stay of execution for hundreds of death-row prisoners in the Caribbean. The Privy Council ruled that all prisoners should be given access to the Jamaican Mercy Committee, the body which decides who will be executed and who should receive mercy. The Council also held that it was unlawful to execute prisoners without regard to decisions of international human rights bodies such as the UN Human Rights Committee and the Inter-American Commission on Human Rights.  The Council specifically commuted the death sentences of 6 inmates.  (The Times of London, 9/13/00)  See also, International Death Penalty

 New Resources. "The Challenge of Holiness," a sermon on the death penalty delivered by Peter J. Rubinstein, Senior Rabbi of Central Synagogue in New York on September 10, 2000.  See also, Statements
 

Justice Department Finds Racial & Geographical Disparities in Federal Death Penalty
    A review of the federal death penalty by the Justice Department, released on September 12, 2000, found numerous racial and geographic disparities. The report revealed that 80% of the cases submitted by federal prosecutors for death penalty review in the past five years have involved racial minorities as defendants.   In more than half of those cases, the defendant was African-American.  Attorney General Janet Reno said she was "sorely troubled" by the results of the report and has ordered United States attorneys to help explain the racial and ethnic disparities.
    The report also found that 40% of the 682 cases sent to the Justice Department for approval to seek the death penalty were filed by only five jurisdictions.
    "I can't help but be both personally and professionally disturbed by the numbers that we discuss today," said Deputy Attorney General Eric Holder.  "[N]o one reading this report can help but be disturbed, troubled, by this disparity."  Reno is expected to announce more studies of the administration of the federal death penalty.  (New York Times, 9/12-13/00) A copy of the report is available on the Department of Justice's web site.  See also, Federal Death Penalty.
 

Dallas Morning News Reports Death Penalty Crisis in Texas
    An examination of the cases of the 461 Texas death row inmates by the Dallas Morning News found that nearly one in four inmates had been represented at trial or on appeal by an attorney who has been reprimanded, placed on probation, suspended or banned from practicing law by the State Bar of Texas.
    The investigation also found that measures enacted in 1995 to improve the state's system of defense and ensure adequate representation have fallen short.  The system requires the state's judicial districts to maintain a list of capital defense lawyers who meet the district's minimum standards.  A check of the lists by The News found that they include more than two dozen attorneys with discipline problems.  "We appointed some absolutely terrible lawyers,"  said death penalty supporter Judge Charles Baird, former member of the Court of Criminal Appeals and co-founder of the National Committee to Prevent Wrongful Executions,  "I mean lawyers that nobody should have, much less somebody on death row on his last appeal."
    Judge Mike McCormick, the presiding judge of the Texas Court of Criminal Appeals, defended Texas' system of representation.  "You can say, well, this sure doesn't pass the smell test," he said, "but there's nothing legally wrong with that person [a disciplined attorney] practicing law.  There are lots and lots of doctors who maybe have had some problems that are practicing medicine." (Dallas Morning News, 9/10/00)

Charlotte Observer: Racial Inequities and Other Problems in Carolinas Death Penalty Cases
A study of capital cases in the Carolinas by the Charlotte Observer found:

• Blacks who kill whites are the most likely to get death sentences, while blacks who kill blacks are the least likely.  In the past decade, 40% of murder victims in the Carolinas were white, but nearly 70% of the victims of those currently on death row were white.
• At least 15 death verdicts have been overturned because of poor lawyering at trial, and 16 other death row inmates - including 3 who were executed - were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct.
• Rural and suburban counties generally impose death sentences at a higher rate than urban areas.  The rural county of Mecklenburg, for example, sentences one person to death for every 50 charged with murder, whereas Buncombe County, where Asheville is located, imposes one for every five.
• Courts have overturned more than 25 death sentences because of prosecutorial misconduct.

(Charlotte Observer 9/9/00, 9/10/00)

Less than Half of Carolinians Prefer the Death Penalty; Majority Support Moratorium
A July poll of Carolinians by the Charlotte Observer-MBTV News Carolinas Poll found:

• Only 45% preferred the death penalty as the appropriate penalty for those convicted of murder.
• 62% said they favored a moratorium of executions until it is determined that the death penalty is fair.
• 64% think that the Carolinas should exempt those with mental retardation from the death penalty.

(Charlotte Observer 9/9/00) See also, Public Opinion

Texas Congressman Calls on Gov. Bush to Place Moratorium on Executions
Representative Ciro D. Rodriguez (D-TX) recently urged Gov. George W. Bush to halt "Texas' execution conveyor belt" until the state's capital punishment system could be studied.  Rodriguez, a death penalty supporter, stated, "[R]ecent questions about the fairness and accuracy of the death penalty have led to a growing consensus in Texas, and across the nation, that our criminal justice system might be punishing the wrong people."   (Congressman Ciro D. Rodriguez, Press Release, 8/29/00).

Arizonans Support Exempting Juveniles and those with Mental Retardation from Execution; Favor Moratorium
A recent poll by the Behavior Research Center found that support for the death penalty in Arizona drops significantly when  specific circumstances are introduced.  Among the poll findings:

• 71% oppose the death penalty for those with mental retardation; only 11% favor the death penalty in such cases.
• 42% oppose the death penalty if the convicted murderer is a juvenile offender, while only 37% support such use.
• 49% favor a two year moratorium on the use of the death penalty while the legislature studies whether it is being properly used; 41% oppose such a moratorium, and 10% are unsure.
• When offered the sentencing option of life in prison with no possibility of parole, support is divided, with 46% favoring life in prison and 46% favoring the death penalty.

(Behavior Research Center, July 2000).  See also, Public Opinion
 

Federal Death Penalty
    Death Row Inmate Allowed to Drop Appeals - The 3rd Circuit Court of Appeals recently ruled that federal death row inmate David Paul Hammer can waive an appeal to his capital sentence.  After first pleading insanity to the 1996 murder of his  federal prison cellmate, Hammer later confessed and was sentenced to death.  In November 1998, Hammer filed a motion to dismiss his appeal, but 3 weeks later asked that the appeal be reinstated.  He later changed his mind, and again sought to dismiss his appeal.  If Hammer does not appeal, he could become the first federal inmate to be executed in 35 years.  (Dallas Morning News, 9/5/00)
    Disparities - USA Today recently reported that a forthcoming study reveals geographic disparities in the application of the federal death penalty.  U.S. Attorneys in only 5 of the 94 federal districts submit 1/3 of all cases for death penalty consideration.  The study by law professor Rory Little of the University of California, Hastings College of the Law in San Francisco, will be published in October. (USA Today, 9/5/00)  See also, Federal Death Penalty
 

Arbitrariness: Tennessee Execution Hinges on a Tie Vote
Seven federal judges appointed by Democratic Presidents voted that Philip Workman should have an evidentiary hearing to explore new evidence that he did not kill a Memphis policeman in 1981.  Seven federal judges appointed by Republican Presidents voted to deny the hearing.  On a tie vote, Workman lost and it is expected that an execution date will be set soon.  (The Tennessean, 9/6/00)

Charlotte, NC Overrides Veto and Votes for Moratorium on the Death Penalty
By a vote of 8-3, the Charlotte City Council overrode the mayor's veto and passed a resolution calling for a moratorium on executions in North Carolina.  Charlotte is the seventh local government in the state to pass such a resolution.  (Charlotte News Observer, 9/6/00) (See People of Faith Against the Death Penalty  and Moratorium Now).

New Project Calls for Moratorium on Texas Executions
Nancy Trease, Chair of the Individual Rights and Responsibilities Section of the State Bar of Texas, recently announced a new death penalty moratorium project. The project, StandDown Texas, will make legislative proposals focused on problems with the death penalty in Texas.  "This project has just begun," said project Director Steve Hall.  "We will be talking with proponents of the death penalty, opponents of the death penalty and people who have not been part of the debate.  It's clear that based on what is happening in Illinois and other states, many Texans want to take a fresh look at what is happening in our own state.  We intend to open a dialog in order to find solutions."  (StandDown Texas, Press Release, 9/4/00 email:shall@gtemail.net)

 Most States Now Have Life Without Parole as an Option
New Jersey recently adopted life in prison without the possibility of parole as the alternative to death in capital penalty trials, and after appellate reversal of death sentences. (2000 N.J. Laws c.88 (8/22/00)). A Gallup poll in February 2000 showed that support for the death penalty dropped from 66% to 52% when respondents were offered the sentencing option of life without parole. New Jersey is now one of 33 out of 38 death penalty states that offer life without parole. See also, Public Opinion.

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