The Tenth Circuit in Rojem v. Gibson held that a trial court must provide jury instruction on weighing mitigating evidence even if it provided other instructions to consider all the evidence, and to consider lesser penalty of life imprisonment.  The Alabama Court of Criminal Appeals held in  Snyder v. State  failing to define the proper use of prior convictions during the penalty phase is plain error.  In widely watched case, State v. Workman, the Tennessee Supreme Court held that due process demands that an evidentiary hearing be held where evidence exists that may free a person from a death sentence.  The Alabama Court of Criminal Appeals in Smith v. State also remanded, for a second time, for clarification as to aggravating and mitigating circumstances so that it could perform review of the sentence.

The only other case covered, in depth, Coleman v. Mitchell m, is from the Sixth Circuit holding, chiefly, that petitioner procedurally defaulted his "cause" (ineffective assistance of appellate counsel) that he sought to use to forgive his default on several other issues.

As this issue is going out late there is no "Focus" session this week.
 

The lower courts were, as a whole, more favorable in this edition.

http://www.capitaldefenseweekly.com/archives/010402.htm
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Supreme Court 
Texas v. Cobb (US) The Sixth Amendment right to counsel does not extend from one custodial interrogation to a separate custodial interrogation even if the second interrogation is about a factually related charge and the basis for an aggravator in a capital crime. 
 
 

Parties:
• Respondent [PDF] [OCR-TEXT] 
• Petitioner - Reply [PDF] [OCR-TEXT] 

 

 
 
 

Amicus - Petitioner:

• Criminal Justice Legal Foundation [TEXT]

United States [PDF] [TEXT] [RTF]

 
While under arrest for an unrelated offense, respondent confessed to a home burglary, but denied knowledge of a woman and child's disappearance from the home. He was indicted for the burglary, and counsel was appointed to represent him. He later confessed to his father that he had killed the woman and child, and his father then contacted the police. While in custody, respondent waived his rights under Miranda v. Arizona, 384 U. S. 436, and confessed to the murders. He was convicted of capital murder and sentenced to death. On appeal to the Texas Court of Criminal Appeals, he argued, inter alia, that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel, which he claimed attached when counsel was appointed in the burglary case. The court reversed and remanded, holding that once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged.

Held: Because the Sixth Amendment right to counsel is "offense specific," it does not necessarily extend to offenses that are "factually related" to those that have actually been charged. Pp. 4-11.

     (a) In McNeil v. Wisconsin, 501 U. S. 171, 176, this Court held that a defendant's statements regarding offenses for which he has not been charged are admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses. Although some lower courts have read into McNeil's offense-specific definition an exception for crimes that are "factually related" to a charged offense, and have interpreted Brewer v. Williams, 430 U. S. 387, and Maine v. Moulton, 474 U. S. 159, to support this view, this Court declines to do so. Brewer did not address the question at issue here. And to the extent Moulton spoke to the matter at all, it expressly referred to the offense-specific nature of the Sixth Amendment right to counsel. In predicting that the offense-specific rule will prove disastrous to suspects' constitutional rights and will permit the police almost total license to conduct unwanted and uncounseled interrogations, respondent fails to appreciate two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. See Miranda, supra, at 479. Here, police scrupulously followed Miranda's dictates when questioning respondent. Second, the Constitution does not negate society's interest in the police's ability to talk to witnesses and suspects, even those who have been charged with other offenses. See McNeil, supra, at 181. Pp. 4-9.

     (b) Although the Sixth Amendment right to counsel clearly attaches only to charged offenses, this Court has recognized in other contexts that the definition of an "offense" is not necessarily limited to the four corners of a charging document. The test to determine whether there are two different offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U. S. 299, 304. The Blockburger test has been applied to delineate the scope of the Fifth Amendment's Double Jeopardy Clause, which prevents multiple or successive prosecutions for the "same offense." See, e.g., Brown v. Ohio, 432 U. S. 161, 164-166. There is no constitutional difference between "offense" in the double jeopardy and right-to-counsel contexts. Accordingly, when the Sixth Amendment right to counsel attaches, it encompasses offenses that, even if not formally charged, would be considered the same offense under the Blockburger test. Pp. 9-11.

     (c) At the time respondent confessed to the murders, he had been indicted for burglary but had not been charged in the murders. As defined by Texas law, these crimes are not the same offense under Blockburger. Thus, the Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and his confession was therefore admissible. P. 11.

___ S. W. 3d ___, reversed.

     Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which Scalia and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
 

Captial Case Relief Granted
Rojem v. Gibson (10th Cir) In a death penalty case, the court must provide jury instruction on weighing mitigating evidence even if it provided other instructions to consider all the evidence, and to consider lesser penalty of life imprisonment.

The federal district court found that Oklahoma law requires a weighing instruction  [*8]  and its omission violated the Fourteenth Amendment, allowing the jury to act outside the scope of its statutory authority and permitting it to sentence Rojem to death without finding the aggravating circumstances outweighed the mitigating circumstances. The court interpreted the entire instructions as indicating the jury could sentence Rojem to death once it unanimously agreed upon the existence of at least one aggravating circumstance. Without a weighing instruction, the court determined the mitigating instruction suggested consideration of mitigating circumstances was optional. Also, the court decided the instruction informing the jury to record the aggravating circumstances it found may have suggested to the jury the aggravators, not the mitigators, were the important consideration. The court found no reference to a weighing requirement anywhere in the trial transcript which could have possibly cured the omission. 

In addition, the court found an Eighth Amendment violation because there was a reasonable likelihood the jury applied the instructions in a way that it was prevented from considering the mitigating evidence and in fact failed to consider Rojem's constitutionally relevant  [*9]  mitigating evidence. The court noted the second-stage instructions did not inform the jury it should consider all evidence. Furthermore, it found no clarification of the jury's obligation to consider mitigating evidence within the entire context of the trial and the mitigating evidence, comprising only twenty-nine pages of the transcript, was not so voluminous that there could be no reasonable likelihood the jury failed to consider it. 

The State argues the district court's finding of an Eighth Amendment violation is contrary to Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990), and Buchanan v. Angelone, 522 U.S. 269, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998). Rather, it maintains there is no reasonable likelihood the jury applied the instructions in a way that prevented consideration of constitutionally relevant mitigating evidence. The State points to instructions permitting the jury to select life imprisonment, even upon a finding of aggravating circumstances; authorizing the jury to consider imposing a death sentence only upon a unanimous finding of one or more aggravators; defining mitigating circumstances as "those which,  [*10]  in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame," O.R. vol. II at 575; and informing the jury it must decide what circumstances are mitigating under the facts and circumstances of the case. Also, the State suggests the jury received indirect instruction to consider all of the evidence in reaching its decision. See id. at 573 (Instruction No. 3: "If, upon consideration of all the evidence, facts, and circumstances in the case, you entertain a reasonable doubt of the guilt of the defendant of the charges made against him in the Bill of Particulars, you must give him the benefit of that doubt and return a sentence of life imprisonment."), 577 (instructing jury to consider all appropriate first-stage instructions, which required jury to consider all evidence before making guilt decision). Additionally, the State suggests the context of the proceedings, along with the mitigation evidence and Rojem's counsel's closing argument that Rojem should receive a life sentence, led the jury to consider Rojem's background and character in making its sentencing decision. 

"The Eighth Amendment requires that the jury be able to consider  [*11]  and give effect to all relevant mitigating evidence offered by petitioner." Boyde, 494 U.S. at 377-78. The standard for determining whether the jury instructions, which must be viewed in total, Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973), satisfy these principles is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence," Boyde, 494 U.S. at 380; see also Buchanan, 522 U.S. at 276. A state, however, need not structure in a particular way the manner in which juries consider mitigating evidence. Buchanan, 522 U.S. at 276. The instructions here only expressly directed the jury to base its sentencing decision on all of the evidence when considering whether the aggravators listed in the Bill of Particulars had been proven. Cf. id. at 277 (instructing jurors to consider all evidence gave them opportunity to consider mitigating evidence). No instructions required the jury in this case to consider the mitigating evidence. Nor did the entire  [*12]  context in which the trial court gave the instructions expressly inform the jury to consider mitigating evidence. See id. at 278; Boyde, 494 U.S. at 383. We agree with the language in Boyde, 494 U.S. at 384, that counsel's argument to spare Rojem's life probably carried less weight with the jury than the court's instructions. In addition, the defense did not present extensive mitigating evidence. Cf. Buchanan, 522 U.S. at 278 (two days of mitigation testimony); Boyde, 494 U.S. at 383 (four days of mitigation testimony). And even the presentation of that evidence did not guarantee the "jury would feel entitled to consider" it. Boyde, 494 U.S. at 384. Rather, the jury must have a means to consider and give effect to the mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302, 319, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). 

The trial court did not provide clear, objective standards providing specific, detailed guidance to the jury to decide whether to impose the death penalty. See Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980)  [*13]  (citing cases). And a weighing requirement was not inherent in the given instructions. Thus, the jury could have based its decision to impose the death penalty on caprice or emotion, rather than on reason. Zant v. Stephens, 462 U.S. 862, 885, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (citing Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)). We therefore conclude there is a reasonable likelihood the jury applied the instructions in a way that prevented it from considering the mitigating evidence. This violated the Eighth Amendment. 

With respect to the district court's finding of a Fourteenth Amendment violation, the State argues Rojem received all the process he was due, despite the absence of the weighing instruction, because the jury knew it must consider all of the evidence in determining punishment and the jury was instructed that it must decide whether to sentence Rojem to life or death. n4 "The defendant . . . has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one  [*14]  that the Fourteenth Amendment preserves against arbitrary deprivation by the State." Hicks v. Oklahoma, 447 U.S. 343, 346, 65 L. Ed. 2d 175, 100 S. Ct. 2227 (1980) (citation omitted); see also Williams v. Cain, 125 F.3d 269, 281, 284 (5th Cir. 1997) (holding capital defendant has constitutionally protected liberty interest in having his sentence imposed by jury instructed to act within bounds of its statutory discretion). 

Oklahoma requires weighing by the fact finder, in this  [*15]  case the jury. See Okla. Stat. tit. 21, § 701.11; Rojem, 753 P.2d at 369. Thus, the trial court deprived Rojem of his legitimate expectation under state law-he did not receive the assurance the death penalty would be imposed only if the aggravating circumstances outweighed the mitigating circumstances. See Hicks, 447 U.S. at 346. Instead, the trial court permitted the jury unguided discretion to impose the death penalty. Nor did the state appellate court attempt to cure the deprivation. See id. at 347. The State therefore deprived Rojem of his liberty without due process. 

We conclude the Oklahoma appellate court's decision was contrary to and an unreasonable application of Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), and the federal district court correctly held Rojem's Eighth and Fourteenth Amendment rights were violated. 

 "The failure to instruct a jury in a capital-murder case as to the proper use of evidence of prior convictions is error, and that error meets the definition of 'plain error.' That failure is 'so obvious that [an appellate court's] failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' Womack, 435 So. 2d at 769. The Court of Criminal Appeals determined that there was no plain error because the trial court could have 'reasonably determined that ... defense counsel had elicited Minor's admission of the prior convictions as part of trial strategy and did not want to call additional attention to the evidence through an instruction to the jury.' ___ So. 2d at ___. We disagree. Assuming the trial court did believe that the failure to request the instruction was a trial tactic, the trial court could have easily inquired as to whether defense counsel wanted the instruction given. Considering the presumptively prejudicial nature of evidence of a defendant's prior convictions, we consider it incumbent on the trial court to ensure that the jury was instructed on the proper use of such evidence. We conclude that the failure of the trial court to instruct the jury that it could not use such evidence as substantive evidence of guilt 'has or probably has' substantially prejudiced Minor; thus, it satisfies the plain- error standard. See Rule 39(a)(2)(D) and (k), Ala. R. App. P." ___ So. 2d at ___.

In this case, the trial court denied the appellant's motion in limine to prevent the State from introducing evidence about any of his prior convictions. Thereafter, the appellant testified on direct examination that he had been convicted of second-degree theft of property in 1988, and the State briefly questioned him about that conviction. The defense did not indicate at any time that it did not want the trial court to instruct on the proper use of prior convictions. In fact, when the State requested that the trial court give its "standard charge on evidence offered for impeachment purposes on prior conviction," the defense did not object. (R. 3248.) Subsequently, during its oral charge, the trial court instructed the jury as follows:

"Now, there has been some testimony offered to the effect that a witness prior to taking the witness stand during this trial has been convicted of a crime. This testimony is allowed to go to one for one purpose, and that is for your consideration in determining what credibility you will give a witness' testimony from the witness stand in this case. This is for your consideration along with all the other factors in determining whether a witness is worthy of belief in what he says from the witness stand." (R. 3511.)

Like the trial court in Ex parte Minor, the trial court in this case did not specifically tell the jury that it could not consider the appellant's prior conviction as substantive evidence that he committed the capital offenses with which he was charged. Therefore, the jury could have concluded that the appellant committed the charged offenses because he had previously demonstrated a criminal tendency. Based on the Alabama Supreme Court's reasoning in Ex parte Minor, we conclude that the trial court did not adequately instruct the jury on the proper use of the appellant's prior conviction, that that error constitutes plain error in this case, and that we must reverse the appellant's convictions based on this error.

The appellant raises several other issues that are potentially problematic. Because we must reverse on the jury instruction issue, we do not express a judgment on the remaining issues. "Our decision not to address [the merits of] the remaining issues raised by the appellant should not be construed as an approval of the manner in which the trial was conducted in regard to those issues." Fletcher v. State, 621 So. 2d 1010, 1024 (Ala. Crim. App. 1993). Nevertheless, because some of the issues may arise again if the case is retried, we make the following observations and admonitions.

 In this case, the trial court held that Workman’s petition for a writ of error coram nobis is barred because he failed to file it timely within the statute of limitations.  See Tenn. Code Ann. § 40-26-105.  The trial court rejected Workman’s claim that the due process considerations discussed in Burford v. State, 845 S.W.2d 204 (Tenn. 1992) require tolling of the statute of limitations.  For the reasons that follow, we reverse the decision of the trial court and order a hearing on Workman’s petition for writ of error coram nobis. 

 In our view, the due process considerations discussed in Burford, and more recently in Seals v. State,  23 S.W.3d 272 (Tenn. 2000) and Williams v. State, ___ S.W.3d ___ (Tenn. 2001), released just today, apply with even greater force when the statute of limitations is being applied in a capital case to bar a claim that newly discovered evidence may prove that the defendant is actually innocent of the capital crime of which he was convicted.

 In Burford, this Court discussed the due process requirements that govern access to post-conviction relief.  In that case, four of the five convictions used to enhance a persistent offender sentence had been set aside.  Burford filed a post-conviction petition within three years of the date the convictions were set aside, but not within three years of the date of final action on the sentence.  This Court concluded that:

  while the statute of limitations is not unconstitutional on its face, it is unconstitutional as applied in petitioner’s case because it denies him due process under the state and federal constitutions.

Id. at 205. In reaching that conclusion, the Court recognized that,

  . . . before a state may terminate a claim for failure to comply with procedural requirements such as statutes of limitations, due process requires that potential litigants be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner. 

  . . . .

  . . . it is possible that under the circumstances of a particular case, application of the statute may not afford a reasonable opportunity to have the claimed issue heard and decided.

Id. at 208.  In determining what process is due for post-conviction claims, or in other words, what opportunity must be given, the Court used this balancing analysis:

   Identification of the precise dictates of due process requires consideration of both the governmental interests involved and the private interests affected by the official action. . . .

 This Court stated that the private interest at stake in Burford  was “a prisoner’s opportunity to attack his conviction and incarceration on the grounds that he was deprived of a constitutional right during the conviction process.”  Id. at 207.  This Court further stated that “[t]he governmental interest represented by the three-year statute of limitations contained in Tenn. Code Ann. § 40-30-102 is the interest in preventing the litigation of stale and groundless claims.”  Id.  After weighing those interests, the Court in Burford determined that the prisoner’s interest in mounting a constitutional attack upon his conviction and incarceration outweighed the State’s interest in preventing the litigation of stale and groundless claims.  Accordingly, the Court in Burford held that the claim, though filed beyond the statute of limitations, was not barred because to apply the statute under those circumstances would violate Burford’s right to constitutional due process.

 Recently, in Seals, this Court held that “due process requires tolling of the statute of limitations where a petitioner is denied the reasonable opportunity to assert a claim in a meaningful time and manner due to mental incompetence.”  Seals, 23 S.W.3d at 279.  We explained that “if the petitioner was mentally incompetent, and therefore legally incapable, he would be denied any opportunity to assert his constitutional rights in a post-conviction petition, unless the period of limitations was suspended during his mental incompetence.”  Id. at 278.

 Just today, in Williams, this Court further explained the analysis required by Burford when a statute of limitations is employed to bar a claim for post-conviction relief.  In Williams, the defendant’s attorney failed to withdraw in accordance with the dictates of Supreme Court Rule 14 following the initial appeal as of right to the Court of Criminal Appeals.  As a result, neither the attorney nor the defendant timely filed an application for permission to appeal in this Court.  Eventually, an untimely application was filed and dismissed, and at the time of its dismissal, three months remained within which to timely file a petition for post-conviction relief.  However, Williams did not file within that time; he actually filed nine months after the expiration of the one-year statutory period.  Nevertheless, the majority in Williams remanded the case to the trial court for a hearing to determine whether due process required tolling of the statute of limitations, on the basis that “the appellee might have been denied the opportunity to challenge his conviction in a timely manner through no fault of his own but because of the possible misrepresentation of his counsel.”  Williams, __ S.W.3d at __. 

 Clearly, in a variety of contexts, due process may require tolling of an applicable statute of limitations.  As in Burford, to determine whether due process requires tolling in this case, we must consider the governmental interests involved and the private interests affected by the official action.  In this case, as in Burford, the governmental interest in asserting the statute of limitations is the prevention of  stale and groundless claims.  The private interest involved here is the petitioner’s opportunity to have a hearing on the grounds of newly discovered evidence which  may have resulted in a different verdict if heard by the jury at trial.  If the procedural time bar is applied, Workman will be put to death without being given any opportunity to have the merits of his claim evaluated by a court of this State.

 Weighing these competing interests in the context of this case, we have no hesitation in concluding that due process precludes application of the statute of limitations to bar consideration of the writ of error coram nobis in this case.  Workman’s interest in obtaining a hearing to present newly discovered evidence that may establish actual innocence of a capital offense far outweighs any governmental interest in preventing the litigation stale claims.  Workman has raised serious questions regarding whether he fired the shot that killed Memphis Police Lieutenant Ronald Oliver.  If he did not fire that shot, he is not guilty of the crime for which he is scheduled to be put to death.  These claims are based upon evidence obtained from the Shelby County Medical Examiner’s Office long after the conclusion of the state post-conviction proceedings.  The delay in obtaining this evidence is not attributable to the fault of Workman or his attorneys.  In fact, Workman previously had filed a subpoena requesting an x-ray of this type, but it was not provided.  No court in this State has actually held a hearing to fully evaluate the strength of these claims.  Under such circumstances, Workman’s interest in obtaining a hearing on these claims clearly outweighs the governmental interest embodied in the statute of limitations.  Accordingly, due process precludes summary dismissal of this claim based upon a statutory time bar.

 The fact that this petition for writ of error coram nobis was filed approximately thirteen months after discovery of the evidence at issue does not change the foregoing conclusion.  Burford and its progeny clearly mandate that a petitioner be afforded a “reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner.”  Williams, __ S.W.3d at __.  Upon consideration of the circumstances of this case, we conclude that the time within which this petition was filed does not exceed the reasonable opportunity afforded by due process.  Indeed, “the magnitude and gravity of the penalty of death persuades us that the important values which justify limits on untimely . . . petitions are outweighed” by Workman’s interest having a court evaluate newly discovered evidence that may show actual innocence of the capital offense.  In re Clark, 855 P.2d 729, 760 (Cal. 1993). 

In Part XXIX of our original opinion, we also directed the trial court to make findings in regard to 17 proposed nonstatutory circumstances that it had listed in its original order as having considered. In its order on return to remand, it found 12 of those 17 proposed nonstatutory circumstances to be mitigating evidence "in regard to whether the Appellant had a substantially impaired capacity." While we will not argue with whether each of those 12 is or is not relevant to that particular  [*15]  statutory mitigating circumstance, we point out that the trial court's consideration of each of the 12 should not have been limited strictly to the context of that statutory circumstance. In other words, the trial court should have also considered each in regard to whether it independently was or was not a nonstatutory mitigating circumstance.

"In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole." 

Section 13A-5-52. Thus, we direct the court on return to remand to so consider all evidence offered by the appellant.

By again considering all of the evidence offered and the nonstatutory mitigating circumstances proposed and issuing one all-inclusive sentencing order, the following inconsistencies in the two orders presently under review will be alleviated. As noted above, in the first  [*16]  sentencing order, the trial court listed 17 proposed nonstatutory mitigating circumstances, but did not make findings in regard to all of them. However, two that it did find, in the first order, to exist were not mentioned in its second order as among those it found to be mitigating. n3 Are we to assume that, on second reflection of the appellant's sentence, the court found them not to exist, or are we to assume that the court stands by its first determination? The trial court's return to second remand should resolve these inconsistencies. In addition, in its first order, the court stated, "I find no credible evidence that [the appellant's] use of drugs was a result of his mental or emotional disturbances." Yet, in its second order, it found the following to be "mitigating evidence in regard to whether the Appellant had a substantially impaired capacity": "The Defendant's use or misuse or abuse of drugs was a result of his mental or emotional disturbance." (Emphasis omitted.) 

Finally, we note that, in the second order, the trial court stated that it had weighed the aggravating circumstances against the mitigating circumstances, but neglected to state that it also considered, as required by § 13A-5-47(e), the jury's recommendation in its advisory verdict. The Alabama Supreme Court recently observed in Ex parte Taylor, [Ms. 1991307, March 9, 2001] __ So. 2d __, __, 2001 Ala. LEXIS 62, *8 (Ala. 2001), that "the trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it."

Conclusion

Based on the foregoing, we must again remand. The trial court is to again determine the appellant's sentence in light of our discussions above and in Parts X, XI, and XXIX of our opinion on original submission. On return to second remand, the court is to submit a new sentencing order that is all-encompassing. 

By remanding this case again, we are not intimating any view, at this point, of the proper sentence for the appellant. We simply cannot make that determination until we have a new sentencing order setting out the findings of the trial court in regard to the aggravating, mitigating, and nonstatutory mitigating circumstances and until  [*18]  the above-noted ambiguities are resolved.

The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time within 28 days of the release of this opinion.

 
     Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).

     On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:

     (B)     Application for reopening

     (1)     A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time. 

     (2)     An application for reopening shall contain all of the following:

          . . . .

     (b)     A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment. 

Ohio App. R. 26(B). 

     While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing. 

     Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.

     Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim. 

     When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so. 

     Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 

Id. at 687. 

     On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983). 

     In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims. 

State v. McKinney (Tenn Cr App) We affirm the defendant's convictions of first degree murder and attempted second degree murder and the death sentence imposed on the murder charge, despite the defendant's claims that: (1) the trial court erroneously disallowed expert testimony on the reliability of eyewitness identification; (2) the jury's capital sentencing verdict was infirm; (3) the trial court erroneously allowed the impeachment of a defense character witness during the penalty phase of the trial; (4) the trial court erred in allowing victim impact evidence that related to the impact of the victim's death on persons or institutions other than the victim's family; (5) the trial court erroneously limited the defendant's argument to the jury during the penalty phase; (6) cumulative errors require reversal of the death sentence; (7) the Tennessee death penalty statute is, for various reasons, unconstitutional. We find no error and hold that the death penalty in this case was proportionate to the death penalty imposed in similar cases, the sentence was not arbitrarily imposed, and the evidence supports the jury's finding of a statutory aggravating circumstance and its finding that the aggravating circumstance outweighs any mitigating circumstances. See Tenn. Code Ann. § 39-13-206(c)(1) (1997).

Other Notable Cases (As reported by Findlaw, and other sources)
Hurtado v. Tucker (1st Cir) Because issues of credibility are for the jury to decide, federal courts should be cautious about issuing  habeas petition on grounds of the objective unreasonableness of a state court's conclusion that the evidence was sufficient to sustain the conviction.

Jamison v. US(1st Cir) Even though a ground for collateral attack was unavailable at the time of the first motion, it was not unjust for the sentencing court to enhance defendant's sentence based on a conviction later overturned.

Sims v. US  (6th Cir) An order denying a certificate of appealability is not itself appealable.

Palazzolo v. Gorcya (6th Cir) The Double Jeopardy Clause is not an absolute bar to the prosecution's appeal from a final judgment of petitioner's state-court conviction, and to the subsequent reinstatement of a First-Degree Criminal Sexual Conduct charge against him.

Horton v. US  (7th Cir) A defendant's conviction becomes "final" under 18 2255 (6)(1) when the Supreme Court denies the defendant's petition for a writ of certiorari (absent a suspension order from the Court or a Justice), irrespective of the opportunity to petition the Supreme Court for rehearing.

LaCrosse v. Kernan (9th Cir) California Supreme Court's 1996 denial of habeas petition for failure to raise issue on direct appeal was not based upon an independent and adequate state law ground, and cannot bar federal habeas review.

Dillard v. Roe (9th Cir) Admission of expert testimony on Battered Women's Syndrome in assault trial where victim recanted testimony at trial did not violate defedant's due process rights given other overwhelming evidence of guilt.

Dictado v. Ducharme (9th Cir) A state prisoner's state habeas application that was dismissed by state courts as procedurally improper is a "properly filed application" under the Anti-Terrorism Effective Death Penalty Act and will toll the statute of limitations for filing a federal habeas petition.

US v. Brooks  (3rd Cir) The gatekeeping provisions of 28 USC 2253 do not violate the Suspension Clause because petitioners have a full and fair opportunity to test the legality of his detention in the section 2255 proceeding in the district court and retain the right to file an original petition for a writ of habeas corpus in the Supreme Court of the United States.

Anderson v. Russell  (4th Cir) Where the evidence establishes that the suspect was reaching toward what the officer reasonably believed to be a gun, any reasonable officer would have imminently feared for his safety and the safety of others, so shooting the suspect was not an excessive use of force.

Featured 
To return next week.

Errata
From the Death Penalty Information Center reports: 

New!  Visit DPIC's revised Mental Retardation and the Death Penalty page, including streaming video presentations about two men with mental retardation  -- Earl Washington, who was exonerated and released from Virginia's Death Row last month, and Mario Marquez, a Texas man who was executed in 1995.  The page also includes information on other inmates with mental retardation who were executed, a list of states that prohibit such executions, and recent news about the issue, including the Supreme Court's decision to hear this issue. 

Chile Abolishes the Death Penalty
A bill to abolish Chile's death penalty was passed by the country's House of Congress on April 3, 2001.  The bill, which was already approved by the Senate, eliminates the death penalty and mandates that those convicted of major crimes serve at least 40 years in prison. "This is a historic day, because we have reached something that was unthinkable just a few years ago," said Justice Minister Jose Antoino Gomez.  "We have removed from our codes an irrational and inhuman law."  Although Chile has had the death penalty since the 19th century, the punishment was rarely enforced.  (Associated Press, 4/4/01)

 Maryland Moratorium Bill Passes Senate Committee 
The Senate Judicial Proceedings Committee narrowly passed a bill that would provide a one-year moratorium on executions in Maryland. Last month, the House of Delegates passed a version of the bill that would have suspended executions for two years.  The Senate version would halt executions until July 1, 2002, pending the results of a University of Maryland study on racial disparities in the death penalty.  Currently, Maryland has the highest percentage of blacks on death row of any state.  The bill will now go to the full Senate for a vote. (Washington Post, 4/4/01)  See also, proposed legislative changes and www.quixote.org/ej 

 Texas Passes DNA Bill 
The Texas House of Representatives passed a bill that would require the state to preserve DNA evidence and allow prisoners access to DNA testing if it was not available at trial.  The bill, which was already passed in the Senate, would also require courts to provide attorneys for indigent inmates making such claims. "I hope it provides the greatest opportunity for people who have been convicted erroneously the chance to prove themselves innocent," said Rep. Harold Dutton (D-Houston).  Gov. Perry is expected to sign the bill, which he previously described as a "emergency" legislation. (Associated Press, 4/4/01)  See also, proposed legislative changes 
 

 EDITORIAL: The Austin American-Statesman recently endorsed death penalty reforms and a moratorium on executions in Texas: 

     Lawmakers should now look closely at the state's death penalty and weigh its value in deterring or punishing crime against a growing list of freed death row inmates here and across the country. 
     . . . 
     In Texas, the death penalty is unevenly applied.  A murder defendant is more likely to be sentenced to death in Harris County than Travis. If this punishment, which enjoys wide public support, is to continue, then it should be viewed as just.  That is not the case.  Most Texans believe the state already has executed an innocent person. 
     Lawmakers can and should reduce the possibility of sending innocent people to death row with measures that give felons access to DNA testing and better legal representation.  And Texas juries should have the sentencing option of imposing life without parole. 
     . . . 
     [There are compelling reasons] for Texas to study whether its death penalty is fairly applied regardless of race or income, and to stop executions -- at least temporarily -- until the state has collected and analyzed that data.
(Austin American-Statesman, 3/2/01) See also, proposed legislative changes and editorials. 

For those in the greater NYC area:

With the NCAA tournaments over, Opening Day over, & the weather getting nicer, it's high time for you, family, co-workers & friends to buy tickets for the Sunday April 29 game at 1:05 pm game: Yankees v. their toughest playoff rivals last year, Oakland A's. Excellent upper level box seats, normally $33 + service charge, are only $16.50, payable to me, + a  donation check of at least $17/ticket to NYers Against the Death Penalty or any of its affiliates. All coming will get a free World Series 2000 Commemorative Pin.  Send both checks to me at: Ronald Tabak, Four Times Square, Room 40-424, New York, NY 10036-6595

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RELATED RESOURCES   You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA)  & www.capdefnet.org (federal defender)  have many prepackaged motions and law guides dealing with death penalty issue.  Finally, the discussion groups above can help you with any questions you might have.

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