Two controversial opinions dominate this issue. In Burdine v. Johnson, the so-called "sleeping  lawyer" case that has garnered international condemnation, the Fifth Circuit rules that creating a "sleeping lawyer" rule of presumed injury would violate the nonretroactivity principles announced in Teague.  In the second opinion, Gall v. Parker, the Sixth Circuit has vacated Gall's  conviction and death sentence on the basis, primarily, that the law, as it existed in Kentucky at the time of the offense required the absence of extreme emotional disturbance be proven and that the prosecution did not rebut the allegation; note that relief was granted on numerous grounds.  The Sixth Circuit in a second opinion, Skaggs v. Parker, held that counsel was ineffective for using an expert that was incoherent and, despite claims of being a psychologist, had not even finished college.  The Fourth Circuit denies relief in Sanders v. Easley in a pre-trial habeas proceeding  on the basis that double jeopardy does not bar a new a sentencing hearing. 

The Supreme Court has weighed in on the question of tolling and  the AEDPA in Artuz v. Bennett. Holding that the AEDPA's one year filing limit is tolled while even a procedurally defaulted state post-conviction proceeding is pending, the court remands with instructions.

The Ninth Circuit in Sandoval v. Calderon, a decision that will appear in the next edition, grants relief on the basis that "at the close of the penalty phase trial, the prosecutor argued to the jury that the death penalty was sanctioned by God."

This week's installment features the Report from Equal Justice USA  entitled "Reasonable Doubts: Is the U.S. Executing Innocent People?"

The first scheduled federal execution since the lifting of the moratorium on executions has been canceled for now. David Paul Hammer has changed his mind and decided not to drop his appeals.

Finally, Johnny Paul Penry, whose case is synonymous with the debate about executing      defendants with mental retardation, will be put to death on Thursday, November 16  unless either the U.S. Supreme Court or Gov. George W. Bush intervenes.  Penry's I.Q. has been tested between 50 and 63, and he has the mental abilities of a six-year old. 

In February 1998, respondent filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of New York, alleging, inter alia, that the state trial court's refusal to allow a defense witness to testify deprived him of his right to a fair trial and his right to present witnesses in his own defense, that his absence from a pretrial hearing violated due process, and that his trial counsel was constitutionally ineffective in failing to object to allegedly improper remarks made by the prosecutor in summation. The District Court summarily dismissed the petition as untimely, noting that it had been filed more than one year and nine months after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214.

The United States Court of Appeals for the Second Circuit reversed and remanded. 199 F. 3d 116 (1999). The panel first concluded that 28 U. S. C. §2244(d)(2) (1994 ed., Supp. IV), which tolls AEDPA's 1-year period of limitation on habeas corpus applications by state prisoners, should also toll the 1-year grace period (commencing on AEDPA's effective date of April 24, 1996), which the Second Circuit has allowed for the filing of habeas corpus applications challenging pre-AEDPA convictions. See Ross v. Artuz, 150 F. 3d 97, 98 (CA2 1998). The panel assumed, for purposes of the appeal, that respondent had not yet received a written order denying his 1995 motion to vacate the conviction. Since respondent could not appeal the denial absent such written order; and since, in the panel's view, "a state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," 199 F. 3d, at 120; the panel concluded that respondent's 1995 motion was still "pending" for purposes of §2244(d)(2). Finally (and this is the sole point on which we granted certiorari), the panel held that respondent's 1995 motion was "properly filed" within the meaning of §2244(d)(2) because it complied with those rules "governing" whether "an application for state post-conviction relief [is] recognized as such" under state law. Id., at 123. It rejected petitioner's contention that the application was not properly filed because the claims it contained were subject to two procedural bars under New York law: a bar against raising an issue that had been "previously determined on the merits upon an appeal from the judgment," N. Y. Crim. Proc. Law §440.10(2)(a) (McKinney 1994), and a bar against raising a claim that was available on direct appeal but was not raised because of the defendant's "unjustifiable failure," §440.10(2)(c).*fn1 199 F. 3d, at 123. We granted certiorari. 529 U. S. 1065 (2000).

II.

Petitioner contends here, as he did below, that an application for state post-conviction or other collateral review is not "properly filed" for purposes of §2244(d)(2) unless it complies with all mandatory state-law procedural requirements that would bar review of the merits of the application. We disagree.

An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. See, e.g., United States v. Lombardo, 241 U. S. 73, 76 (1916) ("A paper is filed when it is delivered to the proper official and by him received and filed"); Black's Law Dictionary 642 (7th ed. 1999) (defining "file" as "[t]o deliver a legal document to the court clerk or record custodian for placement into the official record"). And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery,*fn2 the court and office in which it must be lodged, and the requisite filing fee. See, e.g., Habteselassie v. Novak, 209 F. 3d 1208, 1210-1211 (CA10 2000); 199 F. 3d, at 121 (case below); Villegas v. Johnson, 184 F. 3d 467, 469-470 (CA5 1999); Lovasz v. Vaughn, 134 F. 3d 146, 148 (CA3 1998). In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers, cf. Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam), or on all filers generally, cf. 28 U. S. C. §2253(c) (1994 ed., Supp. IV) (conditioning the taking of an appeal on the issuance of a "certificate of appealability"). But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.

Petitioner contends that such an interpretation of the statutory phrase renders the word "properly," and possibly both words ("properly filed"), surplusage, since if the provision omitted those words, and tolled simply for "[t]he time during which a[n] ... application for State post-conviction [relief] is pending," it would necessarily condition tolling on compliance with filing requirements of the sort described above. That is not so. If, for example, an application is erroneously accepted by the clerk of a court lacking jurisdiction, or is erroneously accepted without the requisite filing fee, it will be pending, but not properly filed.

Petitioner's interpretation is flawed for a more fundamental reason. By construing "properly filed application" to mean "application raising claims that are not mandatorily procedurally barred," petitioner elides the difference between an "application" and a "claim." Only individual claims, and not the application containing those claims, can be procedurally defaulted under state law pursuant to our holdings in Coleman v. Thompson, 501 U. S. 722 (1991), and Wainwright v. Sykes, 433 U. S. 72 (1977), which establish the sort of procedural bar on which petitioner relies. Compare §2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed") with §2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application" (emphases added)). See also O'Sullivan v. Boerckel, 526 U. S. 838, 839-840 (1999) ("In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement" (emphases added)). Ignoring this distinction would require judges to engage in verbal gymnastics when an application contains some claims that are procedurally barred and some that are not. Presumably a court would have to say that the application is "properly filed" as to the nonbarred claims, and not "properly filed" as to the rest. The statute, however, refers only to "properly filed" applications and does not contain the peculiar suggestion that a single application can be both "properly filed" and not "properly filed." Ordinary English would refer to certain claims as having been properly presented or raised, irrespective of whether the application containing those claims was properly filed.

Petitioner's remaining arguments are beside the point. He argues, for example, that tolling for applications that raise procedurally barred claims does nothing to enable the exhaustion of available state remedies --which is the object of §2244(d)(2). Respondent counters that petitioner's view would trigger a flood of protective filings in federal courts, absorbing their resources in threshold interpretations of state procedural rules. Whatever merits these and other policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them. We hold as we do because respondent's view seems to us the only permissible interpretation of the text -- which may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted.

III.

The state procedural bars at issue in this case -- N. Y. Crim. Proc. Law §§440.10(2)(a) and (c) (McKinney 1994) -- simply prescribe a rule of decision for a court confronted with claims that were "previously determined on the merits upon an appeal from the judgment" of conviction or that could have been raised on direct appeal but were not: "[T]he court must deny" such claims for relief. Neither provision purports to set forth a condition to filing, as opposed to a condition to obtaining relief. Motions to vacate that violate these provisions will not be successful, but they have been properly delivered and accepted so long as the filing conditions have been met. Consequently, the alleged failure of respondent's application to comply with §§440.10(2)(a) and (c) does not render it "[im]properly filed" for purposes of §2244(d)(2). The judgment of the Court of Appeals must therefore be affirmed. 
 

Finally, we wish to articulate the reasons that the dissent's retroactive application of Kentucky Supreme Court decisions that overruled the clear precedent governing Gall I would be improper. First, by applying the more modern definition of EED to Gall's case, the dissent would directly contravene the Kentucky Supreme Court's own determination that the new definition of EED in McClellan was to be applied prospectively. See Smith, 734 S.W.2d at 449. It was McClellan that overruled Ratliff's conclusion that mental illness, standing alone, could comprise evidence of EED, but Smith made clear that this refined definition was not to be applied retroactively. We must defer to this state determination.

More generally, applying cases such as Wellman and McClellan to Gall's case would defy the underlying purpose of habeas review. The task of a habeas court under §2254 is to assess the constitutionality of a state court conviction. Even with respect to questions of federal constitutional law, habeas review is constrained by robust principles of finality and non-retroactivity. See generally Teague v. Lane, 489 U.S. 288 (1989). Principles of comity and finality equally command that a habeas court can not revisit a state court's interpretation of state law, and in particular, instruct that a habeas court accept the interpretation of state law by the highest state court on a petitioner's direct appeal. See, e.g., Mullaney, 421 U.S. at 691 ("[W]e accept as binding the Maine Supreme Court's construction of state homicide law."); Gryger v. Burke, 334 U.S. 728, 731 (1948) (stating that because the petitioner alleges only that a state trial court misinterpreted state law, and that because that court's action was affirmed by the highest court in Pennsylvania, the court was not empowered to adopt a different view of state law); Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998) (stating that a habeas court should not revisit an issue of state law, and that doing so is "especially inappropriate" when the state law issue was resolved on direct appeal); Johnson v. Rosemeyer, 117 F.3d 104, 113 (3d Cir. 1997) ("In habeas cases [], district courts act after the state court has decided the state law and applied it to the same record that is before the habeas court. To permit federal courts to speculate about the direction state law may take in the face of an authoritative final decision of a state court in the same case would directly interfere with the state's ability to decide the meaning of its own law.") (citation omitted) . It is against this baseline of binding state law, and the facts of the case at hand, that we review de novo a state court's resolution of whether Gall's conviction violated our Constitution. See generally Bute v. Illinois, 333 U.S. 640, 670 (1948) ("It is our province to decide whether the practice of the Illinois court in these cases, although admittedly in conformity with the law of Illinois, was so clearly at variance with [due process] that these sentences must be clearly invalidated."). While a habeas court may consult intervening state decisions in instances where those decisions clarify or illustrate the law that was applied in the petitioner's own case, see, e.g., Cole v. Young, 817 F.2d 412, 421-22 (1987) (examining intervening Wisconsin decisions to comprehend state law applicable to petitioner), or decisions that correct other courts' misinterpretations of that law, see Duffy v. Foltz, 804 F.2d 50, 54 (6th Cir. 1986)(deferring to Michigan Supreme Court's conclusion on the role of the insanity defense, which conflicted with a prior Sixth Circuit interpretation of Michigan law); Glenn, 635 F.2d at 1188 (deferring to intervening Ohio Supreme Court decision that illustrated that a district court's interpretation of Ohio law had been incorrect), it would defy the fundamental framework of habeas review to apply intervening state precedent that explicitly overruled the state law applied in a petitioner's case.

A simple example demonstrates this point. Jackson v. Virginia requires that habeas courts examine whether a rational trier of fact could have found a defendant guilty beyond a reasonable doubt, and instructs that such a review be made "with explicit reference to the substantive elements of the criminal offense as defined by state law." 443 U.S. at 324 n.16. Suppose that a habeas petitioner, convicted at a time when three elements were required under state law, argues that the prosecution failed to prove the third element. Review under Jackson would be meaningless if a habeas court were retroactively to apply later state cases removing that third element and explicitly overruling the precedent applied in petitioner's case. Yet this is precisely what the dissent's approach proposes that we do.

Moreover, constitutional due process would be violated by casting aside Kentucky Supreme Court holdings establishing the absence of EED as an element of murder in favor of later cases overruling those precedents, particularly when the Kentucky Supreme Court itself applied those early cases 1) to Gall's case, 2) to cases heard both before and after Gall I, and 3) to crimes that took place before and after Gall's. No less than in Mullaney itself, applying Wellman's conclusion that absence of EED was not an element of the crime (when Gall I and even later cases accepted that crucial premise) would effectively shift the burden of proof on an element onto Gall, with the only difference being that the Mullaney violation would occur at the collateral review stage. The Supreme Court since Mullaney has cautioned that a state must not be allowed to "manipulate its way out of Winship." Jones, 526 U.S. at 240; see also Mullaney, 421 U.S. at 691 n.11 (cautioning that a state-court interpretation of state law can be re-examined when it "appears to be an obvious subterfuge to evade consideration of a federal issue")(citation omitted). Applying the fundamentally new conception of EED outlined in later cases such as Wellman to Gall's collateral review would allow the Commonwealth to avert Winship in just that way.

Finally, retroactively applying the later Kentucky cases to Gall's habeas petition would also violate the non-retroactivity principle articulated in Bouie v. Columbia, 378 U.S. 347 (1964). While the ex post facto clause precludes state legislatures from retroactively altering the definition of crimes, see California Dep't of Corrections v. Morales, 514 U.S. 499, 504 (1995); Collins v. Youngblood, 497 U.S. 37, 43 (1990), the Bouie Court held that state supreme courts are "barred by the Due Process Clause from achieving precisely the same result by judicial construction." Bouie, 378 U.S. at 353-54; see also Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989) (stating that "'a state supreme court is barred by the due process clause from achieving by judicial construction a result which a state legislature could not obtain by statute'")(quoting Jordan v. Watkins, 681 F.2d 1067, 1079 (5th Cir. 1982)). Thus, just as in the ex post facto context, the heart of the Bouie analysis is scrutinizing the definition and construction of the criminal act, see id., and ascertaining if the construction by the later court decision was foreseeable by the defendant in question. See Bouie, 378 U.S. at 354 (concluding that the change in law was "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue")(citation omitted). If the new interpretation was in fact unforeseeable, if it was applied to events occurring before its enactment, see Weaver v. Graham, 450 U.S. 24, 29 (1981), and if the interpretation disadvantages the offender affected by it, see id., then Bouie and Dale instruct that due process is violated just as the ex post facto clause would be. Although a decision can render a "disadvantage" in a number of ways, see Collins, 497 U.S. at 43, 52, the elimination of an element of a crime is the quintessential disadvantage that can not be applied retroactively. See Carmell v. Texas, 120 S.Ct 1620, 1632-33 (2000)(noting that "retrospectively eliminating an element of the offense" violates the ex post facto clause); Collins, 497 U.S. at 43 (explaining that the original understanding of the Ex Post Facto Clause was that "[l]egislatures may not retroactively alter the definition of crimes"). Moreover, a law that alters the proof necessary to convict a defendant also violates the ex post facto clause. See Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998) (noting that laws affecting the "degree of proof necessary to establish [] guilt" implicate the ex post facto clause) (quoting Hopt v. Utah, 110 U.S. 574, 589-90 (1884)); Murpy v. Sowders, 801 F.2d 205, 207 (6th Cir. 1986) (stating that laws violate the ex post facto clause when they "alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed").

These standards make clear that the Kentucky Supreme Court's explicit alterations of its interpretation of EED in cases such as Wellman and McClellan can not be applied to Gall's case. These later cases achieved two things: they held that absence of EED was not an element of murder, and they made a defendant's task considerably more demanding by introducing a precise "triggering" predicate that was articulated in neither the statute nor prior caselaw. Both cases explicitly overruled prior caselaw. Applying these new rules to Gall's case would clearly violate Bouie. Under the most reasonable reading of the statute's plain text--that absence of EED was an element of the crime, with no mention whatsoever of the "triggering" requirement that developed in later cases, and with legislative history suggesting a move away from the precise provocation requirement of the "heat of passion" element--the new conception of EED introduced by the later cases changed the law in ways that were unforeseeable at the time of the acts Gall committed. Beyond the statute itself, Kentucky Supreme Court's earliest interpretations of the statute, its decision to apply this reading retroactively to cases that occurred shortly after the statute came into effect (and prior to Gall's offense), and its explicit acknowledgment that the later cases were directly overruling the prior cases, all support this view. It is also clear that the retroactive application of those cases would substantially disadvantage Gall, both by removing an element of murder, and by making Gall's burden of showing EED substantially more difficult.

In the alternative, one could reason that the face of the statute was sufficiently unclear that at the time of Gall's crime, it could be interpreted either as establishing absence of EED as an element (as the state courts initially believed), or as a defense or matter of evidence (as the courts later believed, and as the dissent now believes). When faced with a considerable ambiguity on a facet as critical as a potential element of a crime, a court may rule that such a statute is void for vagueness or, in certain circumstances, it may add a clarifying gloss to that statute and apply it prospectively. But it would once again violate due process to apply that added and unforeseen precision retroactively. See generally Lanzetta v. New Jersey, 306 U.S. 451, 456-67 (1939)(stating that the New Jersey Supreme Court improperly applied its interpretation of a vague statute against defendants because "[i]t would be hard to hold that, in advance of judicial utterance upon the subject, they were bound to understand the challenged provision according to the language later used by the court"); United States v. Salisbury, 983 F.2d 1369, 1380 (6th Cir. 1993)(finding it inappropriate to cure a vague statute and apply the new construction retroactively to conduct prior to the holding). Cf. Marks v. United States, 430 U.S. 188, 195 (1977)(holding that because a federal obscenity statute was vague and sweeping, a Court decision relaxing constitutional standards on First Amendment protection of obscenity could not be applied retroactively).

In sum, due to constrictions imposed by Kentucky law, the underlying purpose of habeas review, as well as due process limitations articulated in Mullaney and Bouie, we decline the dissent's invitation to apply cases and conceptions of EED that overruled critical premises governing the Gall I decision to Gall's collateral attack of that decision. Rather, we will adhere, as we must, to the Kentucky Supreme Court's conception of EED that preceded the dramatic changes marked by Wellman and McClellan, a conception that the Gall I court applied to Gall's appeal as well as to crimes that occurred both before and after the crime in this case.*fn19
 

Accordingly, the question before us is not simply whether manifest necessity or the ends of public justice supported the declaration of a mistrial in Sanders' case. Rather, we must determine whether the decision of the North Carolina Supreme Court in Sanders III "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.A.§ 2254(d)(1). We may not grant habeas relief unless, at a minimum, this standard is satisfied. As the Supreme Court recently explained in Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000), a state court decision is "contrary to" clearly established federal law if the state court has "arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." A state court decision constitutes an unreasonable application of federal law if it "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. It certainly cannot be said that the decision of the North Carolina Supreme Court in Sanders III was contrary to clearly established Supreme Court precedent. The state court correctly identified "manifest necessity" as the governing standard and articulated specific considerations similar to those recognized by the Supreme Court. See Sanders III, 496 S.E.2d at 573-74; see also id. at 574 (quoting statement of Justice Story from United States v. Perez).

We also conclude that the decision in Sanders III did not result from an unreasonable application of clearly established Supreme Court precedent. Again, we note that the determination we are required to make under the AEDPA is a very limited one. It is not whether there was manifest necessity for a mistrial, but rather whether the North Carolina Supreme Court ruled unreasonably in concluding that manifest necessity existed. See Williams , 120 S. Ct. at 1522 ("Under § 2254(d)(1)'s `unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.").

By the time the trial court declared a mistrial, it had been presented with numerous instances indicating that the jury deliberations had devolved into something much less than a reasoned, good faith attempt to reach a verdict. The first concrete indication that the deliberations were troubled was the foreman's note regarding the outside investigation purportedly conducted by Lytle concerning the irrelevant issue of parole eligibility.*fn4 In attempting to resolve that issue, the trial court learned that Lytle had been subjected to harassment by her fellow jurors, to the extent she felt it necessary either to consult with third parties regarding the case or to fabricate such a consultation in hopes that the other jurors would find her views more palatable. Although the trial court did not find it necessary to declare a mistrial at that juncture, instead attempting to cure the problem through further jury instructions, the note from Juror #3 disclosed that the problems had not ceased, but rather had simply taken a new form. At a minimum, the note from Juror #3 revealed a continuing exasperation with Lytle, strongly indicating the possibility that the harassment was continuing. The note could also be read to indicate continued consideration of extraneous matters, namely, what occurred at the previous trial.*fn5 While none of these incidents may have justified a mistrial if presented in isolation, we cannot say that the North Carolina Supreme Court acted unreasonably in concluding that, in light of all the incidents, the jury deliberations had become such a debacle that the state interest in a just verdict could only be protected by the declaration of a mistrial.

Sanders raises several arguments, none of which persuades us of the unreasonableness of the state court decision. First, Sanders contends that "strict scrutiny" of the mistrial order is required because the declaration of a mistrial favored the State, in that the mistrial afforded the State another opportunity to seek the death penalty against Sanders. Brief of Petitioner-Appellant at 28. Of course, double jeopardy principles will bar retrial after the prosecution has engaged in bad faith actions intended to provoke a mistrial request by the defendant. See United States v. Dinitz, 424 U.S. 600, 611 (1976); see also Kennedy, 456 U.S. at 675-76 (explaining that prosecutorial overreaching "does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause"). Here, however, even viewing the facts in the light most favorable to Sanders, the most that can be said is that the State was pleased to have the opportunity to retry Sanders. There is not even a scintilla of evidence to suggest that the prosecution had any part in creating the circumstances that led the trial court to declare a mistrial.

Sanders next maintains that the potential grounds for mistrial identified by the State on appeal--the discussion of parole eligibility, outside investigation, the previous trial, and whether Lytle believed in the death penalty (dubbed by Sanders as "the four irrelevancies")-did not support a mistrial. Essentially, Sanders maintains that the trial court could not have found juror misconduct based upon the discussion of the irrelevancies because, after each one was brought to light, the court instructed the jury not to consider it, and the record does not demonstrate that the jury continued to consider improper matters after being instructed by the judge not to do so.*fn6

This argument demonstrates a failure to appreciate the significance of the fact that the events that preceded the declaration of mistrial did not occur in isolation, but were rather part of a pattern. As noted previously, Sanders may be correct that each incident, by itself, may not have been enough to create manifest necessity for a mistrial. However, the trial court was not presented with only one incident, but rather with a series of occurrences. It simply was not unreasonable for the North Carolina Supreme Court to conclude that these instances, taken together, created manifest necessity for a mistrial on the basis that the jury not only had failed to engage in good faith, reasoned deliberations regarding the issues before them prior to the giving of curative instructions, but also that the jury was continuing to stray from its task.

Finally, Sanders claims that the trial court acted precipitously in declaring a mistrial. This assertion is flatly contradicted by the record, which demonstrates that the court was reluctant to declare a mistrial and engaged in several efforts to get the jury back on track. Only when it was clear that these efforts had failed did the court declare a mistrial. 

Burdine also claims an exception to Teague for claimed constitutional rights susceptible of vindication only on habeas review, asserting that his ineffective assistance claims could not be raised on direct appeal because he was represented by the same counsel who slept during his trial (even though Burdine requested that Cannon represent him on appeal) and because, in any event, the claim required development of facts outside the trial record. Following oral argument in the case at hand, our court, in Jackson v. Johnson, 217 F.3d 360, 364 (5th Cir. 2000), utilized a somewhat similar third, quite narrow Teague exception.

Jackson's Texas state court conviction for aggravated assault was affirmed on direct appeal by the Texas intermediate appellate court. Jackson neither filed a timely motion for rehearing with that court nor sought discretionary review by the Texas Court of Criminal Appeals. Id. at 363. On habeas review, Jackson claimed his attorney rendered ineffective assistance by failing to timely file a motion for rehearing with the intermediate appellate court. Id. at 361, 363.

Our court concluded that a holding that an "opportunity to file a motion for rehearing should be considered the last step in [Jackson's] first appeal of right ... would surely create a new rule of constitutional law" under Teague. Id. at 363-64. But, it held that Jackson's claim satisfied "a third narrow exception to Teague, heretofore unrecognized by the courts". Id. at 364 (emphasis added). "When an alleged constitutional right is susceptible of vindication only on habeas review, application of Teague to bar full consideration of the claim would effectively foreclose any opportunity for the right ever to be recognized." Id.

Arguably, the right asserted by Jackson was one that could never be raised on direct appeal. Id. at 364. In any event, the holding in Jackson must be limited to the facts in that case. That holding has obvious, wide-ranging implications concerning the limits mandated by Teague for habeas review. The exception utilized in Jackson cannot be allowed to swallow the rule announced in Teague. How the Jackson holding will come into play must be decided on a case-by-case basis.

Regardless of Jackson's reach, the right asserted by Burdine would not seem to fall within the very narrow category utilized in Jackson. Restated, the exception utilized in Jackson would not seem to cover Burdine's assertion that his claim could not have been raised on direct appeal.

Burdine asserts it could not have been so raised, because he was represented on appeal by the same counsel who slept during his trial. Burdine should have noted such conduct and not have requested that Cannon represent him on appeal. While we do not hold that such request, on this record, constitutes a waiver of Burdine's ineffective assistance claim regarding Cannon's sleeping, we are troubled, to say the least, by wide-ranging abuses that can result where, as here, a criminal defendant sits next to counsel during trial; makes no mention then of counsel sleeping during trial; requests that the same counsel represent him on direct appeal; and then, over ten years after trial, claims ineffective assistance because counsel slept during trial, despite defendant never, by affidavit or testimony, stating under oath that counsel engaged in such conduct. Cannon is not the only person in this case who slept; Burdine slumbered as well -- on his rights.

Burdine contends, alternatively, that, on direct appeal, he could not have asserted the claim now at issue, because it required development of facts outside the trial record. But, Burdine, who sat next to counsel throughout trial, could have brought counsel's sleeping to the attention of the trial court during trial, which may, at the very least, have allowed development of the facts at that time. Along this line, perhaps counsel's sleeping could have been the basis for a new trial.

In this regard, we are quite hampered in our analysis and in reaching a conclusion as to this claimed exception because the State, in its reply brief, does not address the possible options -- such as seeking a new trial -- that may have been available to Burdine. Instead, it maintains that Burdine's claim must be considered under the Strickland test.

In sum, it appears that Burdine's claim is not one that could never be raised on direct appeal under any circumstances. In other words, the alleged constitutional right he claims does not appear to be one that "is susceptible of vindication only on habeas review". Jackson, 217 F.3d at 364 (emphasis added).

Accordingly, it would seem that Burdine's claim does not fall within the quite narrow Teague exception utilized in Jackson.

Skaggs also argues in his habeas petition that he received ineffective assistance of counsel at the penalty phase based on counsel's failure to present mitigating evidence, in particular, counsel's failure to present the jury with a realistic view of Skaggs's mental status. Although we find that it was not unreasonable for counsel to have used Bresler during the guilt phase of the trial, counsel's decision to use Bresler again at the penalty phase presents us with an entirely different question.
 

[47]     After having observed Bresler's bizarre and eccentric testimony, did counsel have a duty to find a different psychiatric expert for the retrial of the penalty phase? Put differently, did counsel have a responsibility to present meaningful mitigating evidence? We think that they did. We find that Skaggs's counsel acted below an objective standard of reasonableness at sentencing, essentially providing no legitimate mitigating evidence on Skaggs's behalf, and that this failure severely undermines our confidence in the just outcome of this proceeding.

 Failure to present mitigating evidence at sentencing constitutes ineffective assistance of counsel. See Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) (holding that defense counsel's failure to investigate or present any mitigating evidence because counsel believed that it would be of no benefit constituted ineffective assistance of counsel when several witnesses were available and willing to testify on defendant's behalf, as the failure to present mitigating evidence undermined the adversarial process and rendered the death sentence unreliable); Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995) (holding that counsel provided ineffective assistance when mitigating information was not presented to the jury at sentencing because counsel made virtually no attempt to prepare for sentencing phase). In Austin, we recognized that the failure to present mitigating evidence when it was available could not be considered a strategic decision, but rather, an "abdication of advocacy." 126 F.3d at 849. Such an abdication occurred in the present case.

At the evidentiary hearing, Boyce was questioned about Bresler's testimony during the guilt phase of the trial and her initial decision not to use Bresler during the penalty phase, stating:

   A:[H]e was awful. He was incoherent. He was talking about things that didn't make sense. You couldn't stop him. You couldn't reel him back in. People in the audience were laughing at him.

So Joe [Kirwin] and I talked afterwards. Our initial intent had been to recall him at the penalty phase. We discussed it and decided we would be in better shape not calling him than we would be if we called him. So we did not recall him at the penalty phase.

Boyce then was questioned about why she had changed her mind and decided to call Bresler at the second penalty hearing:

    Q:Between the mistrial and the retrial of the penalty phase, what efforts or discussions were had as far as getting an expert witness in the [second] penalty phase?

   A:Joe and I talked about what to do, again about Elliott [sic] Bresler, who had been such a bad witness. Ultimately we decided since we had such a difficult time getting any money or the right to call or have David [Skaggs] evaluated by our own expert, that it was unlikely that Judge Waldon would give a summons for another witness, another expert witness. And our only reason could be that we didn't think that our expert turned out to be very competent on the stand.

   So we decided we would ask the judge for more money so Elliott [sic] Bresler could come back, thinking that probably the judge would deny that. But he granted it, and so we ended up recalling [Bresler] for the retrial.

Upon Bresler's cross-examination during the penalty phase, the prosecution questioned him on some of the more peculiar aspects of his earlier testimony:

Commonwealth:The last time we talked, I was interested that a great number of famous people you thought were psychotic, great - great people like Einstein.

Bresler:I never said that Einstein was psychotic.

Commonwealth:You remember what you told me about that?

Bresler:I said he had some eccentricities. I said he had some eccentricities. First of all, I would never say anyone was psychotic, unless I had examined them. I do not make value judgments.

Commonwealth:You, obviously, hadn't had an opportunity to examine Dr. Einstein?

Bresler:I knew Einstein personally, but I never examined him, and he had some eccentricities.

Commonwealth:And I believe the Secretary of the Interior, you said, similarly, Mr. Watts?

Despite acknowledging that Bresler was not a competent witness and, in fact, made a mockery of the first trial, defense counsel nevertheless called him to testify at the second penalty phase, primarily because counsel waited until the eleventh hour to prepare for the penalty phase and to line up a psychiatric expert to testify on Skaggs's behalf. Counsel's decision to call Bresler at the retrial of the penalty phase, despite their belief that Bresler's testimony could realistically be more harmful than helpful, simply because counsel believed it would not be worth their time to request additional money from the court, cannot be deemed to have been a reasonable exercise of professional judgment. Because defense counsel failed to introduce other competent mitigating evidence, they essentially failed to put on any mitigating evidence at all. Thus, we hold that counsel's decision to present Bresler's testimony as crucial mitigating evidence at the penalty phase of the trial, having had the advantage of witnessing Bresler's previous bizarre performance and, more importantly, counsel's complete failure to present other mitigating evidence on Skaggs's behalf, fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687.

  b. Prejudice

To establish the prejudice prong of an ineffective assistance claim, Skaggs "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) ("[T]he 'prejudice' component of the Strickland test . . . focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair."); West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) ("The question for reviewing courts is whether counsel's errors have likely undermined the reliability of, and confidence in, the result."). As the Supreme Court explained in Strickland, "When a defendant challenges a death sentence . . . the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 696. The Court recently emphasized that a petitioner need not prove by a preponderance of the evidence that the result would have been different, but merely that there is a reasonable probability that the result would have been different. See Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000).

In Gregg v. Georgia, 428 U.S. 153 (1976), which reinstated the death penalty, the Supreme Court discussed the importance of a case-by-case determination at the sentencing hearing. "We have long recognized that '[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.'" Id. at 189 (quoting Pennsylvania ex. rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)). Since Gregg, the Court has reaffirmed that sentencing determinations must be made based upon an examination of the particular characteristics of the defendant. See Penry v. Lynaugh, 492 U.S. 302, 317 (1989) ("[T]he Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty."); Zant v. Stephens, 462 U.S. 862, 879 (1983) (requiring that once the defendant is put in the category of persons eligible for the death penalty, the jury must make an individualized determination "on the basis of the character of the individual and the circumstances of the crime").

We have held that, at sentencing, a defendant must be afforded the opportunity to put forth relevant, mitigating evidence. See Austin, 126 F.3d at 848; Glenn, 71 F.3d at 1206-08. In Austin, we noted:

The Eighth Amendment requires a jury to consider the circumstances of the crime and the defendant's background and character during the sentencing phase of a capital trial. The Constitution also requires defense counsel to reasonably investigate a defendant's background and present it to the jury. Failure to investigate or present mitigating evidence at sentencing may constitute ineffective assistance of counsel. (citations omitted).

Furthermore, although Kentucky law provides a list of statutory mitigating factors, see Ky. Rev. St. Ann. § 532.025, a criminal defendant is not limited to presenting evidence of only these statutory circumstances. See Penry, 492 U.S. at 317 ("[T]he Eighth and Fourteenth Amendments require that the sentencer 'not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'"(quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978))).

Considering the foregoing, we now must evaluate whether defense counsel's failures prejudiced Skaggs in light of the purpose of a capital sentencing hearing. At the second penalty hearing, the trial court instructed the jury on two statutory mitigating factors: (1) extreme emotional disturbance; and (2) whether Skaggs's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired because of mental disease or defect. The only mitigating evidence relating to Skaggs's mental state presented by defense counsel was the testimony of Bresler--a fraudulent "expert" whom counsel had not investigated but chose to use despite the mockery he created through his testimony at the guilt phase. Counsel's deficient performance at sentencing resulted in the presentation of essentially no mitigating evidence at all, especially on the one topic which may have convinced the jury that a death sentence was not justified: Skaggs's mild mental retardation and his diminished mental capacity.

The Supreme Court has considered the pivotal role that psychiatry has come to play in criminal proceedings, acknowledging the importance and power of expert testimony:

[W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.

By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. Ake, 470 U.S. at 80-81 (citations omitted).

We have interpreted Ake to recognize that in addition to the right to a psychiatric expert at the guilt phase, an indigent defendant is constitutionally entitled to the psychiatric or psychological assistance during the sentencing phase if "1) the defendant's sanity was a significant issue during the trial, or 2) defendant is on trial for his life and the state first presents psychiatric evidence of future dangerousness." United States v. Osoba, 213 F.3d 913, 917 (6th Cir. 2000) (citing Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990) (en banc)).

The case before us is not one of a mere disagreement between experts, or a case in which the expert for the petitioner did not testify as favorably as the petitioner had hoped -- both circumstances in which the granting of a habeas petition would be inappropriate. Nor do we rely on the suggestion from Ake, not explicitly adopted by this Court, that the petitioner is entitled to a competent expert in his defense. Compare Vickers v. Stewart, 144 F.3d 613, 614 (9th Cir. 1999) (suggesting that a reviewing court could scrutinize the state's actions regarding providing effective assistance of a defense expert), with Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998) ("reject[ing] the notion that there is either a procedural or constitutional rule of ineffective assistance of an expert witness").*fn3 In this case, there is no need to go so far as to hold that Skaggs was entitled to a competent defense expert because, here, the prejudice to Skaggs resulted from his own counsel's failure to assert effectively his rights at sentencing, including the presentation of mitigating evidence. More specifically, counsel's failure to present an even marginally competent expert on crucial evidence prejudiced Skaggs at the penalty phase of the trial. Skaggs's one chance at mitigation -- and avoidance of a death sentence -- was his borderline mental retardation and other clinical psychological conditions, which counsel did not present to the jury.

Dr. Engum's report stated:

[W]ith regard to the most significant issues; namely intelligence, the presence or absence of indicia of organic brain damage, and the presence or absence of a major psychosis (schizophrenia, affective disorder, or organic brain syndrome with psychosis), Mr. Bresler's findings were erroneous, improper, not supported by the data, and arguably misrepresentative of the client.

Dr. Engum further opined that "Bresler's obvious incompetence so detracted from the proceedings that the jury was either not allowed to hear or never had a chance to consider the more subtle aspects of Mr. Skaggs's psychological development, personality status, present level of cognitive functioning, emotional status, or potential for long term adjustment in a penal facility . . . ." In other words, the jury that sentenced Skaggs to death did not have accurate information about the mental status of the person it was sentencing. If counsel had performed adequately, the jury would have had significant mitigating evidence to consider.

Dr. Engum and Dr. Yont both indicated that Skaggs is mildly mentally retarded because Skaggs scored 64 on one I.Q. test, which is below the current Kentucky standard for eligibility for the death penalty. See Ky. Rev. Stat. Ann. §§ 532.130, 532.140.*fn4 Dr. Engum's neuropsychological assessment of Skaggs revealed:

Mr. Skaggs suffers from significant compromise in almost all areas of cognitive function. . . . In fact, considering the four most sensitive indicators of brain dysfunction in terms of level of performance, . . . Mr. Skaggs's scores were clearly in the brain damaged range in each instance. . . . Accordingly, the results of comprehensive neuropsychological assessment clearly reflect a pattern of results consistent with some form of organic brain syndrome.

The primary elevations of the clinical profile reflect an individual who may be in a borderline psychotic condition with severe disturbances of thought, mood, and behavior. Such individuals typically harbor intense feelings of insecurity and inferiority. They lack self-confidence and self-esteem and feel guilty about perceived failures.

In addition, there are strong paranoid features which suggest that this client has lived under the fear of attack and humiliation. There appears to be a constant sense of threat of being attacked. . . . There is also an associated constant effort to define what is the appropriate behavior in a particular situation.

The extreme elevation of the Schizophrenia Scale further bolsters the assumption that the clinical profile accurately reflects Mr. Skaggs's current level of functioning . . . . The elevation on the Schizophrenia Scale appears to reflect an individual who is confused, withdrawn, suspicious, and socially isolated. Such an elevation is often associated with active psychotic thought processes, extremely poor judgment, and significant impairment in reality testing. It is likely that this individual experiences unusual perceptual events, possible hallucinatory activity, and unusual ideas that may include magical thinking or delusional beliefs. (citations omitted).

Based on this information, it is reasonable to think that the jury could have found the statutory mitigating circumstance of Skaggs's impaired ability to "appreciate the criminality of his conduct the requirements of law . . . as a result of mental illness or retardation . . . ." See Ky. Rev. Stat. Ann. § 532.025(b)(7).

In sum, we believe that there is a reasonable probability that the jury would have weighed the mitigating and aggravating factors differently had counsel performed adequately.*fn5 See Strickland, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."). Bresler misrepresented himself as a licensed clinical and forensic psychologist; his presentation to the jury was fraudulent and resulted in the jury making a determination regarding the appropriate sentence for Skaggs without the aid of critical mitigating information. As Dr. Engum stated:

Mr. Bresler determined that Mr. Skaggs was performing within the average range of intellectual functioning, a finding that is definitely belied by [Skaggs's] most recent intelligence testing. Mr. Bresler was also completely negligent and totally incompetent in terms of evaluating Mr. Skaggs's overall neuropsychological status. While this examiner cannot definitely diagnose Mr. Skaggs as suffering from an underlying organic brain syndrome, a simple quantitative analysis of his neuropsychological test results reveals significant compromise in brain-behavior relationships.

By ineffectively evaluating the client, by arriving at clearly erroneous diagnostic impressions, by positing criminal insanity when none existed, by failing to identify Mr. Skaggs's low borderline intellectual functioning, by failing to identify Mr. Skaggs's neuropsychological deficits, and by producing a report which contained what may be charitably termed psychobabble, . . . Mr. Skaggs's psychological status was misrepresented and the salient features were omitted from the jury's purview.

 Furthermore, defense counsel failed to prepare or present any other meaningful mitigation evidence that might have compensated for their use of Bresler, or aided the jury in understanding Skaggs's actual mental status.

"If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision." Gregg, 428 U.S. at 190 (emphasis added). Given the fact that defense counsel's performance resulted in the jury imposing a death sentence based on inaccurate "psychobabble," and the considerable mitigation evidence that could have been presented by an actual expert had counsel functioned properly, we find that "counsel's deficient performance render[ed] the result of the trial unreliable [and] the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Accordingly, we find that the sentencing proceedings violated Skaggs's Sixth Amendment right to effective assistance of counsel. 
 

Loveland v. Hatcher, No. 99-17348 (9th Cir. 11/03/2000) "We reverse the district court's dismissal of Loveland's federal habeas petition, and remand to the district court for an evidentiary hearing to determine whether Loveland's counsel was ineffective in not pursuing Loveland's direct appeal and if so, whether that ineffectiveness excused Loveland's procedural default in failing to file a timely post-conviction relief petition in state court."

Rutledge v. United States, No. 99-1686 (7th Cir. 10/24/2000) "Rutledge's final challenge is that his sec. 2255 counsel was ineffective for failing to present an argument to the district court that trial counsel was ineffective because he did not interview the alibi witnesses mentioned in Rutledge's September 20, 1998 letter. We describe above the basic legal standards for an ineffective assistance of counsel claim; however, a few additional points are relevant here. Because this court does not take any new evidence, the defendant's attempt to show ineffective assistance of sec. 2255 counsel is limited to the record developed below. See United States v. Penass, 997 F.2d 1227, 1229 (7th Cir. 1993). Isolated errors do not constitute ineffective assistance if the attorney's work product taken as a whole demonstrates competence. See Dahler v. United States, 143 F.3d 1084, 1086 (7th Cir. 1998). "[T]he Constitution calls for a professionally competent defense, not for the best possible defense." Holman v. Gilmore, 126 F.3d 876, 883 (7th Cir. 1997)."

Loeblein v. Dormire, No. 99-3480 (8th Cir. 10/24/2000) "In evaluating confrontation clause claims, we ask if "the defendant [had] 'ample opportunity to discredit' the testimony of the relevant witness," United States v. Hall, 171 F.3d 1133, 1146 (8th Cir. 1999), cert. denied, 120 S. Ct. 1437 (2000), quoting United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997). It seems apparent to us that the relevant witness was E.M., as she was the individual who testified to having suffered the abuse. Mr. Loeblein's trial counsel seems to have been able to conduct a full cross-examination of E.M. He challenged her on numerous details of her testimony and was never met with the response that only Mandy knew the answer to a question. Because Mr. Loeblein had the opportunity to discredit E.M.'s testimony, we find no confrontation clause violation. "

Sassounian v. Roe, No. 98-56747 (9th Cir. 10/26/2000) "Sassounian contends that the jury's consideration of facts not in evidence invalidated the special circumstance finding. Juror misconduct is a mixed question of law and fact, reviewed de novo. See Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997)." Writ granted.

Williams v. Matesanz, No. 00-1204 (1st Cir. 10/25/2000) "We are not without empathy for the petitioner's situation. Assisted by able counsel, he saw the Supreme Court's emerging jurisprudence as a possible avenue to a new trial - only to have Congress's adoption of a restrictive standard of review for state prisoners' habeas applications transform that avenue into a dead end. We can question the wisdom of the AEDPA regime insofar as it pertains to habeas cases, but we cannot question Congress's authority to adopt that regime. The state superior court, in denying post-conviction relief, complied therewith and rendered an objectively reasonable (if arguable) decision. We are statutorily constrained to defer to that decision, notwithstanding our misgivings about the correctness vel non of the jury instructions. Under the AEDPA, we can go no further."

United States v. Brooks, No. 98-7419 (3d Cir. 10/23/2000) "because Brooks did have a meaningful opportunity to present his claim to the District Court, his S 2255 remedy cannot be said to be either inadequate or ineffective. If we were to hold that the unavailability of an appeal under S 2253(c)(2) rendered Brooks'S 2255 remedies inadequate or ineffective, we would be undermining a valid act of Congress. Accordingly, we will deny Brooks'S 2241 petition for a writ of habeas corpus."

Wilkinson v. Cowan, No. 99-1220 (7th Cir. 11/01/2000) "Convicted of murdering his estranged wife, Mark Wilkinson sought post-conviction relief in Illinois state court. Among other things, he argued that his trial counsel was ineffective for failing to investigate (or to provide him with a copy of) the coroner's autopsy report, which contained certain obvious discrepancies. After the circuit court summarily dismissed Wilkinson's petition, his appellate counsel sought leave to withdraw, asserting that his case presented no issue of arguable merit. The Illinois appellate court, upon review of the record, agreed. It granted the motion to withdraw, and without further ado, affirmed the circuit court's judgment. When he later sought federal habeas relief, the district court determined that Wilkinson had procedurally defaulted the ineffectiveness claim by failing to present the claim to the Illinois appellate court. We disagree. The state appellate court, when it elected to affirm the circuit court's judgment outright, without inviting Wilkinson to brief his appeal pro se, implicitly reached the merits of all of the issues he had raised in his post-conviction petition. We therefore remand the ineffectiveness claim to the district court for consideration on the merits."
 
 

 

Introduction

"I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life."
– Governor George Ryan, on declaring a moratorium in Illinois

The administration of the death penalty in the United States is plagued by injustice. The proof has become irrefutable. Individuals are being sentenced to death for crimes they did not commit. While some of these individuals are being exonerated and released, others are likely being executed. 
 
 

Mounting evidence of unfairness has become so compelling that some death penalty supporters, such as Illinois Governor George Ryan, can no longer ignore it. In January of this year, Governor Ryan announced a moratorium on executions in the state, just days after Illinois’ thirteenth death row inmate was exonerated. In so doing, Illinois became the first U.S. jurisdiction to suspend executions while it examines the administration of the death penalty.
 
 

This report marks the first national effort to document and expose cases of people executed despite compelling evidence of their innocence since executions resumed in the U.S. in 1977. It is released in a climate that is increasingly hostile to efforts to re-open or investigate cases in which people have been executed for crimes they probably didn’t commit. 
 
 

The report highlights the cases of 16 individuals who were executed by the states of Alabama, California, Florida, Illinois, Missouri, Texas, and Virginia in the face of exculpatory evidence and evidence of rights violations. In all of these cases, the state and federal courts had every opportunity to interrupt the process and determine whether the original conviction was wrong, but they failed to do so. These cases are a part of an alarming trend in the administration of justice in the U.S. in which the courts overwhelmingly favor efficiency and rigid procedural rules over justice and constitutional protection. This trend has created a system of arbitrary justice and has left a trail of arbitrary executions in its wake.
 
 

Methodology 
This report is based on five months of research conducted by a network of activists and lawyers as part of the Grassroots Investigation Project. The Project is an ongoing effort to document and investigate cases where there is compelling evidence of innocence and due process violations. The researchers have employed a case study methodology, in which they have relied on individual cases to highlight widespread patterns and practices of the state that lead to the violation of rights and may lead to the execution of innocent people. 
 
 

All 16 cases contained in this report were selected based on the compelling nature of the evidence of innocence. Additional criteria used to select cases included the exemplary nature of the cases; all of the cases demonstrate widespread and recurrent defects in the administration of the death penalty. Using criteria for review developed by the Center on Wrongful Convictions at Northwestern University School of Law, trial, appellate, and investigative documents were compiled and analyzed. This information, as well as information obtained through independent investigations in some cases, formed the basis of the case studies and the charts that were developed for each of the cases. (See appendix for charts on cases included in this report.)

This report represents only a small number of the actual cases in which people have been executed for crimes they probably did not commit. The project’s research into such cases is ongoing.
 

Findings 
In each of the 16 cases profiled in this report, there exists compelling evidence that the defendant was convicted of the crime he did not, in fact, commit. Viewed collectively, these 16 cases highlight patterns and practices in the administration of justice at the state and federal levels that violate constitutionally and internationally protected rights. Abuses that led to rights violations included the following. 
 

Defense attorneys routinely failed to provide their clients with competent legal counsel.
 

In all 16 cases, the defendant was convicted and sentenced to death at a trial that did not conform to basic standards of fairness and due process. The lack of competent counsel undermined the right to a fair trail. There was compelling evidence that the defense attorneys failed to perform their duties to their clients with adequate competence. Defense attorneys, most of whom were appointed by the court, routinely failed to mount a defense, to investigate, to produce witnesses that could testify to the defendant’s innocence or challenge the prosecution’s evidence, to comply with court deadlines, to object to illegal or improper conduct, or to preserve evidence and issues for appellate review. 
 

Prosecutors and police routinely engaged in misconduct during investigations and trials. 
 
 

In all of the cases, there was compelling evidence of official misconduct and abuse committed at the investigation and trial stage. Suppression of exculpatory evidence was common. Prosecutors frequently relied on a single eyewitness or on jailhouse informants – sources shown to be unreliable. In some cases, witnesses were intimidated or offered deals for testifying. Confessions were obtained through coercion, force, threats, and even torture and then used to convict defendants despite the illegal means utilized to obtain the confessions. Line-ups were prejudicial and leading in many cases. In at least one case, evidence was probably planted. 
 

Racial bias fueled the actions of police, prosecutors, defense attorneys, and judges. 

People of color are disproportionately represented on U.S. death rows. Furthermore, the race of the victim is a principle determinant in sentencing offenders to death. The combination of an African American defendant and a white victim is most likely to result in a death sentence. In these 16 cases, only one of the crime victims was black and 16 were white. Nine of the executed men were African American.

In every case in which an African American was the defendant, racial discrimination was a determining factor in the conviction. In many cases, prosecutors excluded jurors based on race, a practice found to be an unconstitutional form of racial discrimination by the U.S. Supreme Court in 1986 (Batson v. Kentucky). In some cases, lawyers – both for the prosecution and defense – used racist language to inflame the jury. In at lease one case, the judge and prosecutor were later found to have engaged in persistent racial discrimination.
 

State and federal appellate courts failed to intervene in cases with compelling evidence of innocence and evidence of rights violations.
 
 

In all of the cases, the decision of the trial court was appealed based on due process violations and, in some cases, on compelling evidence of innocence. In most of the cases, evidence of innocence was never heard in any court because it surfaced only after the original trial. In most cases, appeals were repeatedly denied without re-hearing, irrespective of the evidence. This was largely a result of strict appellate review standards and inflexible time limits. These include restrictions on federal courts’ ability to review convictions as mandated by the 1996 Anti-Terrorism and Effective Death Penalty Act and state time limits for the introduction of new evidence after sentencing. 
 
 

The existence of innocence claims and the evidence to support these claims render the related allegations of unfairness and lack of due process particularly alarming. In all of the cases, both state and federal courts had every opportunity to remedy the rights violations but did not. Both state and federal courts failed to protect the rights enshrined not only in state constitutions and the Constitution of the United States, but also in international law. Courts overwhelmingly favored procedure over justice and efficiency over fairness. And, in so doing, state and federal governments sanctioned state killing of men who were probably innocent.
 

Conclusion 
The definitive nature of the death penalty requires the highest standards of due process and fairness. The findings of this report suggest that while such standards exist formally, they do not exist in practice. Death penalty states, through the police, the state prosecutors’ offices, and the judicial system, routinely fail to exercise necessary diligence to ensure the protection of the rights of the accused. Federal courts, which have been limited by the Anti-Terrorism and Effective Death Penalty Act of 1996, fail to exercise the necessary oversight to provide remedies for rights violations in death penalty cases. As such, state governments, with the acquiescence of the federal government, are executing people under the guise of due process and fair trials, despite compelling evidence of innocence. 

Recommendations

There is an emerging national consensus that the administration of the death penalty in the U.S. is in dire need of reform. After many years of deep cuts to indigent defense funding and radical restrictions on prisoner appeals, the pendulum is beginning to swing in the other direction. Reforms are now being proposed at the state and national level. Measures like the Innocence Protection Act, now pending before Congress, could lessen the risk of executing innocent people by increasing compensation, training, and oversight of defense counsel and by making DNA testing available to death row prisoners. 
 
 

The proposed reforms, however, only address the first finding of this report. They do not address the reluctance of state and federal appellate courts to review and/or intervene when faced with cases with compelling evidence of innocence or rights violations. Furthermore, the proposed remedies do not address racial bias and prosecutorial misconduct. Officially, neither the state nor federal governments acknowledge that innocent people are being executed. The necessary first step to meaningful reform is a time-out on executions that allows time, space, and resources for independent evaluations of the state and federal governments’ administration of the death penalty. 

Based on the findings of this report, the Grassroots Investigation Project of Equal Justice, USA recommends the following in order to protect the rights of individuals and to ensure that innocent people are not executed:

State and federal governments should impose immediate moratoria on executions and should constitute independent bodies to study the administration of the death penalty. 
State and federal governments should investigate alleged cases in which people have been executed for crimes they did not commit. 
State and federal governments should consistently provide compensation to individuals, or the families of individuals, who have been wrongfully convicted or wrongfully executed. 

Texas May Execute Mentally Retarded Man on Thursday 
      Johnny Paul Penry, whose case is synonymous with the debate about executing      defendants with mental retardation, will be put to death on Thursday, November 16  unless either the U.S. Supreme Court or Gov. George W. Bush intervenes.  PenryÕs I.Q.as been tested between 50 and 63, and he has the mental abilities of a six-year old.  A bill introduced in the last legislative session to bar the execution of the mentally retarded  in Texas was defeated, despite the fact that a large majority of Texans disagree with such executions.  The execution is opposed by the leading national associations on mental retardation and by the American Bar Association.  The U.S. Supreme Court overturned PenryÕs sentence once before, but he was given the death penalty again in Texas. enryÕs execution would be the third of three executions this week in Texas. (See Press Release, Nov. 13, 2000; media only, contact Laura Burstein, 202-822-5200, ext.222 or Marci Brandsdorf, ext. 256 - Fenton Communications)

       Mexican National Executed in Texas 
Miguel Flores was executed in Texas despite protests from the Mexican government that Texas authorities violated the Vienna Convention in failing to inform Flores, a Mexican national, of his right to consular assistance. The Mexican government had filed protests with Governor George W. Bush and the State Department.  Nevertheless, the Texas Board of Pardons and Paroles denied Flores' clemency petition and the U.S. Supreme Court, in a 5-4 ruling, refused to grant a stay of execution.  Flores' last chance at a reprieve was Governor Bush, who could have granted a 30-day stay of execution.  See also, foreign nationals

New Resources 
"Reasonable Doubts: Is the U.S. Executing Innocent People?" (October 26, 2000).  This preliminary report of the Grassroots Investigation Project of Equal Justice USA highlights the cases of 16 individuals who were executed despite evidence of their innocence. The report focuses on the inadequacies in the justice system that led to their executions, including ineffective counsel, police and prosecutorial misconduct, racial bias, and failure of the courts to intervene in cases with compelling evidence of innocence. 
"Sentenced to Death: A Report on Washington Supreme Court Rulings in Capital Cases" (August 2000).  After the released of the Columbia University study earlier this year, the ACLU of Washington analyzed court rulings in the 25 Washington cases in which the death penalty has been imposed under the current death penalty statute.  The study concluded that fundamental errors in capital cases were ignored routinely by the Washington Supreme Court and only received relief because of federal review. 
"Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas: A report received by the State Bar of Texas from the Committee on Legal Services to the Poor in Criminal Matters" (September 22, 2000).  This report by the State's Bar Committee offers a collective assessment of the status of indigent defense in Texas and concludes that the system  is in need of serious reform.   The Committee found that indigent criminal representation , including death penalty cases, is politicized and ineffective, and provides a different standard of justice when compared to those who can afford their own attorneys. 
See also, studies and additional resources. 

 Lawyer Sabotaged Defense of Death Row Client 
    An attorney for North Carolina death row inmate Russell Tucker recently admitted that he purposely tried to sabotage the defense so that his client would be executed.  The attorney, David Smith, met Tucker in prison and decided: "Mr. Tucker should be executed for his crimes."  Smith added,  "I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution."  As a result of the attorney's actions, an appeal was missed and Mr. Tucker's execution date was set for December 7. 
     The state Supreme Court will decide whether to allow the appeal to be heard and if new counsel should be appointed.  In a brief opposing the appeal, Forsythe County district attorney Tom Keith argued that Tucker "has no right to either 'effective assistance of counsel' or 'conflict-free counsel' under the state or federal Constitutions." Attorney General Mike Easley, the Democratic candidate (elected) for governor, seemed surprised when asked about the state's position and said he wanted a look at the brief.  (Associated Press 11/2/00) 
 

Deterrence & Murder of Police Officers 
     According to statistics from the latest FBI Uniform Crime Report, regions of the country that use the death penalty the least are the safest for police officers.  Police are most in danger in the south, which accounts for 80% of all executions (90% in 2000).  From 1989-1998, 292 law enforcement officers were feloniously killed in the south, 125 in the west, 121 in the midwest, and 80 in the northeast, the region with the fewest execution - less than 1%. 
     The three leading states where law enforcement officers were feloniously killed in 1998 were California, the state with the highest death row population (7); Texas, the state with the most executions since 1976 (5); and Florida, the state that is third highest  in executions and in death row population (5).  (FBI, Uniform Crime Reports, Law Enforcement Officers Killed and Assaulted, 1998) See also, deterrence. 
 

 Recent Poll Show 20% Drop in Support for Death Penalty in California; Majority Supports Moratorium in Virginia 

California - According to a Los Angeles Times Poll, support for capital punishment in California has fallen 20% in the past decade, from 78% in 1990 to 58% in 2000.   In addition, the poll shows that 48% of residents support a moratorium on the death penalty, while 44% oppose it.  (Los Angeles Times, 11/2/00) 
Virginia - A Richmond Times-Dispatch/News-Channel 10 poll found that 58% of Virginians favor a moratorium on executions until issues surrounding the death penalty can be resolved.  The poll also found that 91% favored allowing DNA testing for death row inmates to establish guilt or innocence when DNA was unavailable at trial.  (Richmond Times-Dispatch, 11/6/00) 
See also, recent poll findings 

 International Abolition 

Poland - On September 30, 2000, Poland abolished its death penalty when it ratified Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty.  To become a party to the protocol member states must remove capital punishment from their law.  (Council of Europe Press Service, 10/30/00) 
Chile  - The Chilean senate voted to end the death penalty and increase the number of years that must be served under a life sentence. Before it becomes law, the bill will be submitted to the constitutional committee for review. (BBC News,  11/6/00) 
See also, International death penalty 

 First Federal Execution Delayed 
David Paul Hammer, who was scheduled to be the first federal prisoner executed since 1963, was granted a stay to file a federal appeal by January 31, 2001.  Previously, Hammer had waived his right to appeal.  His execution date had been set for Nov. 15, 2000. (The Oklahoman, 11/1/00)  Juan Garza from Texas is still scheduled to be executed under federal authority on Dec. 12, 2000. 
 

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