Three  federal court of appeals habeas denials are also noted.  The Fifth Circuit has held that a claim requesting a competency hearing prior to execution is subject to the AEDPA's limits upon successive writs in Richardson v. Johnson. Likewise the Fifth Circuit in Rudd v. Johnson denied relief on Brady and IAC claims.  In Thomspson v. Haley The Eleventh Circuit has held that the police did not unduly coerce defendant into confessing where they lied to him.

The Supreme Court's tern end is also covered in this edition. This week's Focus section is on the past term's decisions, with one decision, Tyler v. Cain, (examining the retroactively of the Cage Rule) being covered at length.  Note also Justice O'Connor's statements at the Minnesota Women Lawyers annual which included two very notable comments including "the system may well be allowing some innocent defendants to be executed''  and "[p]erhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.''  Justice O'Connor's comments were made, coincidentally (or not) on the twenty-fifth anniversary of Gregg v. Georgia.

Since last issue one person domestically has been executed:

June 26   Miguel Richardson       Texas 
June 27   Jim Lowery                Indiana 

July 11  Jerome Mallett           Missouri 
July 11  James Wilkens Jr.        Texas 

Several opinions noted this week were delayed due to a delay in their publication by the various online services, therefore it appears quite likely that we will miss opinions on a regular basis from the state courts. If a case is missed please feel free to email the oversight to karl@karlkeys.com. 

This issue is located at http://www.capitaldefenseweekly.com/archives/010709.htm.

Supreme Court
INS v. St. Cyr (US) Where lawful permament resident would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but commenced removal proceedings after AEDPAs and IIRIRAs effective dates, the discretionary relief is still available.

Calcano- Martinez v. INS (US) Circuit courts do not have jurisdiction to review appeals pursuant to 8 USC 1252(a)(1), but district courts may hear habeas corpus petitions pursuant to 28 USC 2241 in a challenge to the Board of Immigration Appeals determination of ineligibility to apply for a discretionary waiver of deportation under 8 USC 1182(c).

Tyler v. Cain (US) The Cage Rule, that a jury instruction is unconstitutional if there is a reasonable likelihood that the jury understood the instruction to allow conviction without proof beyond a reasonable doubt, is not retroactive to cases on collateral review by the Supreme Court.

After petitioner Tyler was convicted of second-degree murder and his conviction was affirmed on appeal, he filed five state petitions for postconviction relief and a federal habeas petition, all of which were denied. After this Court decided Cage v. Louisiana, 498 U.S. 39under which a jury instruction is unconstitutional if there is a reasonable likelihood that the jury understood it to allow conviction without proof beyond a reasonable doubtTyler filed a sixth state petition, claiming that a jury instruction in his trial was substantively identical to the one condemned in Cage. The State District Court denied relief, and the State Supreme Court affirmed. Seeking to pursue his Cage claim in federal court, Tyler moved the Fifth Circuit for permission to file a second habeas application, as required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The court granted the motion. The District Court then proceeded to the merits of Tylers claim and denied relief. Although the Fifth Circuit affirmed, it stated that the District Court had erred by failing first to determine whether Tyler had satisfied AEDPAs successive habeas standard, which requires a district court to dismiss a claim in a second or successive application unless, as relevant here, the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 2244(b)(2)(A) (emphasis added). Relying on Circuit precedent, the court concluded that Tyler did not meet this standard.

Held:The Cage rule was not made retroactive to cases on collateral review by the Supreme Court, within the meaning of 2244(b)(2)(A). Pp.411.

     (a)Based on 2244(b)(2)(A)s plain meaning when read as a whole, made means held. Under the statute, this Court is the only entity that can ma[k]e a new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court. The only way the Supreme Court can, by itself, lay out and construct a rules retroactive effect is through a holding. This Court does not ma[k]e a rule retroactive when it merely establishes principles of retroactivity and leaves their application to lower courts. In such an event, the lower court (or perhaps a combination of courts), not the Supreme Court, develops any legal conclusion derived from those principles. Although the statute uses the word made, not held, Congress is permitted to use synonyms in a statute, see Williams v. Taylor, 529 U.S. 362, and made and held are synonyms in the 2244(b)(2)(A) context. This interpretation is necessary for the proper implementation of AEDPAs collateral review structure. The stringent 30-day time period that 2244(b)(3)(D) imposes on courts of appeals determining whether an application makes a prima facie showing that [it] satisfies the [second habeas standard], 2244(b)(3)(C), suggests that those courts do not have to engage in the difficult legal analysis that can be required to determine questions of retroactivity in the first instance, but need only rely on Supreme Court retroactivity holdings. Pp. 57.

     (b)The Cage rule has not been made retroactive by the Supreme Court. Cage did not make itself retroactive, and neither did Sullivan v. Louisiana, 508 U.S. 275, 279. Tyler contends that Sullivans reasoning makes it clear that retroactive application of Cage is warranted by the principles of Teague v. Lane, 489 U.S. 288, 311313, in which the Court held that a new rule can be retroactive to cases on collateral review only if it falls within one of two narrow exceptions to the general rule of nonretroactivity. However, the most Tyler can claim is that, based on Teagues principles, this Court should make Cage retroactive to cases on collateral review. It is clear, however, that the Court has not done so. Although the Court can make a rule retroactive over the course of two cases, it has not done so here. Pp. 710.

     (c)This Court declines to make Cage retroactive today. Because Tylers habeas application was his second, the District Court was required to dismiss it unless Tyler showed that this Court already had made Cage retroactive. This Court cannot decide today whether Cage is retroactive to cases on collateral review, because that decision will not help Tyler in this case. Any statement on Cages retroactivity would be dictum, so this Court declines to comment further on the issue. Pp.1011.

218 F. 3d 744, affirmed.

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

The victim, who worked at an all-night convenience store, was seized late at night from the otherwise empty store, taken to a secluded spot, tortured, raped, and then killed by a shot from a shotgun at close range. There were no witnesses. Two teenagers, Wood and Harmon, who lived with Miller, were arrested the next day. Wood confessed, implicating both Harmon and Miller--the last, Wood stated, having orchestrated the entire atrocious crime, as well as participating in it, although Harmon had been the one who shot the victim. Wood testified against Miller at Miller's trial, pursuant to a plea agreementwhereby Wood's sentence was capped at 60 years. (Harmon, who was also prosecuted and convicted, did not testify at Miller's trial.) Wood's testimony was the centerpiece of the state's case, but it was not entirely satisfactory. It contained some contradictions; it had been induced, in part anyway, by the state's promise not to seek the death penalty for him; and despite his youth he was already an accomplished criminal when the rape and murder occurred. The state wanted corroboration and found it in the testimony of its expert witness that a pubic hair found on the victim's thigh almost certainly was Miller's. The prosecution harped on this evidence in closing argument. Miller's lawyer did not consult with a hair expert, let alone call one as a witness, but was content to cross-examine the state's expert. In the post-conviction proceedings, however, new counsel for Miller retained a far more experienced hair expert than the state's and this expert testified that the hair was like the victim's hair and unlike Miller's. The prosecution at Miller's trial had also presented DNA evidence that it admitted was inconclusive and had not presented tire-tread and footprint evidence that it had said in opening argument it would present. Had Miller's lawyer called his own DNA, tiretread, and footprint experts, they would have testified not that the evidence was inconclusive but that it provided absolutely no basis for supposing Miller present at the scene of the crime.

Of course Miller's trial lawyer, even if he had searched conscientiously for expert witnesses to testify about hair, DNA, tiretreads and footprints, might not have found experts that would give impressive testimony favorable to Miller, even if such experts existed. The fact that Miller's post-conviction counsel was able to find a highly experienced hair expert to testify in Miller's favor doesn't mean that minimally competent trial counsel, shopping for an expert whom the court would appoint (since Miller could not afford to hire an expert in the market for high-priced expert witnesses), could have found as effective a witness to counter the prosecution's expert evidence. But the government makes nothing of this point; it is content to argue that Miller's lawyer was entitled to rely on cross-examination to undermine the prosecution's experts, and to make no effort to obtain his own experts. This argument would be convincing in some cases, but not in this one; cross-examination alone could weaken the prosecution's expert evidence, but not to the point of denying it the essential corroborative value for which the prosecutor was using it.

A hardware clerk testified that Miller had purchased shotgun shells the day before the murder. She based this testimony in part on her recollection of having received a check in Miller's name, and the state sought to corroborate her recollection by introducing a check and cash register record with the name "Miller" on it. The check was numbered 1204 and the witness testified that she was positive that "Miller 1204" was the defendant. In fact the check was from a different person, as Miller's lawyer would have discovered had he subpoenaed the bank's records from the bank. He did obtain Miller's copy of those records, which contained no trace of such a check; and while the prosecutor argued that Miller might have had another bank account on which he had written the check--an argument with no basis in the evidence--the prosecutor could have made the same argument had Miller's lawyer obtained bank records, since the lawyer could not have obtained the records of every bank in which Miller might have had another account. But only with the bank's records could the lawyer have shown that "Miller 1204" was a different Miller from the defendant. . . . .Most questionable of all the lawyer's fumbles was his decision to call a psychologist to testify that Miller was incapable of the kind of violence that had been perpetrated against the victim.

The lawyer did this knowing that Miller had been previously convicted of kidnapping, rape, and sodomy and at the time of the crime for which he was being tried had been free on parole from a life sentence for kidnapping. The state brought these facts out on cross-examination of the psychologist and they not only destroyed the psychologist's credibility but almost certainly and perhaps decisively bolstered the jury's confidence in Miller's guilt. . .. .The clearest respect in which the lawyer's representation fell below the minimum level was the decision to put the psychologist on the stand, knowing what the lawyer knew. He also had no excuse for failing to inquire whether the defendant was "Miller 1204," since if he was not--and he was not--the clerk's testimony would be seriously undermined, given the great emphasis she placed on her recollection of the check. And, in the circumstances (an essential qualification), there was also no excuse for the lawyer's failure to consult experts on hair, DNA, treadmarks, and footprints. A defendant's lawyer does not have a duty in every case to consult experts even if the government is proposing to put on expert witnesses. United States v. Anderson, 61 F.3d 1290, 1298-99 (7th Cir. 1995); Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993). There may be no reason to question the validity of the government's proposed evidence or the evidence may be so weak that it can be demolished on cross-examination. But since Miller's defense was that he had not been at the scene of the crime, and he could not testify in opposition to Wood because to do so would enable the state to bring in the devastating evidence of his prior convictions, and the government was going to put great weight on expert evidence in order to bolster Wood's testimony, Miller's only chance was to establish so far as it was possible to do that there was no objective evidence placing him at the scene of the crime. A DNA expert and a treadmark and footprint expert would have so testified, and probably a hair expert more credible than the state's would have so testified as well because the expert that Miller's new counsel found was far more qualified than the state's and, as we noted earlier, the state does not argue that Miller's post-conviction expert was superior to the average expert that competent trial counsel might have found. In these circumstances, it was irresponsible of the lawyer not to consult experts. Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir. 1999); Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998); cf. Strickland v. Washington, 466 U.S. 668, 690-91 (1984) (duty of reasonable investigation).

It remains only to consider whether Miller would have had a reasonable shot at acquittal had his lawyer been minimally competent. We think so. The minimally competent lawyer would have presented expert evidence that there was no physical evidence of Miller's presence at the crime scene, would have greatly undermined the hardware clerk's evidence, would not have undermined the alibi testimony of Miller's wife, would by forgoing psychological evidence (unlikely in any event to impress a jury) have kept the evidence of Miller's previous crimes from the jury, and would thus have forced the state to rely entirely on Wood's questionable testimony. The jury might have concluded that Wood was trying to save his life by portraying himself falsely as the tool of an older man. This is far from certain; indeed, we think the chance of an acquittal would still have been significantly less than 50 percent; but it would not have been a negligible chance, and that is enough to require us to conclude that the lawyer's errors of representation were, in the aggregate, prejudicial. Id. at 694; Washington v. Smith, 219 F.3d 620, 632-33 (7th Cir. 2000); Hernandez v. Cowan, 200 F.3d 995, 999-1000 (7th Cir. 2000); Gonzalez-Soberal v. United States, 244 F.3d 273, 277 (1st Cir. 2001).

The judgment is reversed with directions that the state either release Miller or retry him within 120 days. In addition, we are sending this opinion to the Indiana attorney disciplinary authorities for consideration of whether attorney Ronald V. Aungst's deficient representation of Miller at his trial warrants disciplinary proceedings.

Instructional error will not support a petition for federal habeas relief unless it is shown "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' " Cupp v. Naughten, 414 U.S. 141, 146 (1973), but that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.

This standard for instructional error applies to ambiguous or omitted instructions. Murtishaw's circumstance is different because the trial court applied the wrong statute. Hicks was not a habeas case and did not apply this rigorous standard. Jones was a habeas case challenging an instruction in sentencing and applied harmless error review, but did not apply the instructional error standard discussed here. Our Court, however, has applied the Cupp standard to instructions given at the sentencing phase. See Jeffries v. Blodgett , 5 F.3d 1180, 1195 (9th Cir. 1993).

Henderson v. Kibbe, 431 U.S. 145 (1977) stated the rarity of the case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction itself violates due process," not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,' ". Id. at 154 (citing Cupp v. Naughten, 414 U.S. at 147).

In evaluating Henderson's claim that the omission of an instruction on causation violated his Fourteenth Amendment right to due process, the Court stated that "[t]he significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given." Id. at 156. The Henderson court noted that an "omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155 (emphasis added).

If the Henderson standard does apply to Murtishaw's claim, it is important to note that Murtishaw involves a misstatement of law as the trial court instructed the jury of a statute that did not apply to Murtishaw. As Henderson noted, such a misstatement is more likely to be prejudicial than an omission or incomplete instruction. Additionally, comparing the 1978 Briggs statute that the trial court used and the 1977 statute that actually applied to Murtishaw reveals a stark difference and prejudice to Murtishaw as the 1977 provision contained no mandatory language like that of the 1978 statute. Still, the California Supreme Court deemed this harmless error because subsequent to Murtishaw's trial, the state supreme court interpreted the 1978 statute to allow the same jury discretion as that under the 1977 statute.

In rendering its interpretation of the 1978 statute, the California court required that a clarifying instruction be given to the jury explaining the discretion ambiguity. Murtishaw's sentencing jury did not receive any clarification of this ambiguous statute that admittedly did not even apply to Murtishaw. Had the jury been given the applicable 1977 statute, no ambiguity over the language of the 1978 statute would have arisen. Application of the wrong statute potentially confused the jury as to its exercise of statutory discretion. Thus, even under Henderson's strict standard, Murtishaw demonstrates that application of the wrong statute at his sentencing infected the proceeding with the jury's potential confusion regarding its discretion to impose a life or death sentence. Such an error resulted in the arbitrary deprivation of life and thus a violation of due process.*fn30

The Eighth Circuit has interpreted the instructional error standard to require that a defendant show that "the instructions used constituted a fundamental defect that resulted in a miscarriage of justice." Robinson v. LaFleur , 225 F.3d 950, 954 (8th Cir. 2000). It is difficult to imagine circumstances to better demonstrate a miscarriage of justice than having to guess whether a jury would have imposed the death penalty had it been given the proper instruction.

Beck v. Alabama, 447 U.S. 625 (1980) held that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, provided that the evidence would have supported such a verdict. The Court stressed that the jury was faced with a situation in which its choices were only to convict the defendant and sentence him to death or find him not guilty.

The jury could not take a third option of finding that although the defendant had committed a grave crime, it was not so grave as to warrant capital punishment. The Court concluded that a jury might have convicted Beck but also might have rejected capital punishment if it believed Beck's testimony. On those facts the Court held that the defendant was entitled to a lesser included offense instruction as a matter of due process. Id. at 637.

Here, under the plain mandatory language of the statute, Murtishaw's jury might have believed it had no alternative to imposing the death penalty if it found aggravating circumstances even slightly outweighed mitigating circumstances. This would not have been the case under the 1977 statute, nor even under the California Supreme Court's subsequent interpretation of the 1978 statute. As in Beck, when it is a sentence of death to be imposed, such a mistaken ultimatum presented to the jury constitutes a miscarriage of justice and violates due process.

The mere fact that we have found an error of constitutional dimension in the jury instructions does not, however, automatically warrant a grant of the habeas petition. See Calderon v. Coleman, 525 U.S. 141, 145 (1998). We now must determine whether that error was harmless. See id. We conclude that it was not.

An instruction that was reasonably likely to have been misunderstood by the jury is subject to a harmless error analysis, because it is a trial-type error that "occurred during the presentation of the case to the jury." Arizona v. Fulminante, 499 U.S. 279, 307 (1991). See also Coleman, 515 U.S. at 145 (holding that habeas courts must apply a harmless error analysis after having found that jury instructions were constitutionally erroneous under Boyde); Clemons v. Mississippi, 494 U.S. 738, 752-54 (1990) (finding that unconstitutionally overbroad jury instructions at the sentencing stage of a capital case are subject to harmless error review). Because this case involves a petition for habeas corpus, and because the improper jury instruction was a trial-type error, Brecht v. Abrahamson, 507 U.S. 619 (1993), controls. See Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). Under Brecht, the inquiry "is whether, in light of the record as a whole," the improper jury instruction "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638.

It is difficult to determine whether the erroneous jury instruction had a substantial and injurious effect or influence on the jury's verdict. The jury obviously found that the aggravating factors outweighed the mitigating factors -- otherwise it would not have returned a sentence of death. However, it is unclear whether the jury would have returned a death sentence had they been given the correct instruction, properly informing them that they could return a life sentence even if aggravation outweighed mitigation. In order to make this determination, we must examine the record as a whole. See id.

Murtishaw's penalty jury was presented with a wide array of both aggravating and mitigating evidence. The State presented evidence of Murtishaw's guilt, as well as evidence that discredited Murtishaw's diminished capacity defense. Murtishaw presented character evidence that described him as "likeable," "very level-headed" and a"good guy." He also entered evidence that detailed his difficult childhood and family history, and that substantiated his claim that he had used drugs the night before the shootings. Most importantly, Murtishaw presented expert testimony that suggested he had committed the shootings while suffering from a diminished capacity due to brain disorders and drug and alcohol intoxication.

The jury deliberations suggest that the jury was at least partially persuaded by Murtishaw's mitigating evidence. On two occasions during its deliberations, the jury asked the court for a definition of first degree murder. The jurors also asked to review some of the physical evidence from the crime scene and to have some of the testimony concerning Murtishaw's alleged PCP intoxication re-read to them. The deliberations lasted for two days before the jury returned the death sentence.

We, of course, cannot determine whether the jury would have exercised leniency had it been given that option; the very nature of such a question would require us to determine whether the jury felt mercy for Murtishaw, even though it felt justified in imposing a death sentence. Because we can- not actually determine whether the jury would have exercised leniency, we cannot determine, one way or the other, whether the failure to give the jury that option resulted in"actual prejudice" to Murtishaw. Brecht, 507 U.S. at 637 (stating that habeas petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice' "). Nonetheless, given the mitigating evidence presented, the jury's apparent interest in it, and the length of the jury's deliberations, we are in "grave doubt " about whether the jury would have returned a death sentence even if they had been properly instructed that they did not have to do so after finding that aggravation outweighed mitigation. O'Neal v. McAninch, 513 U.S. 432, 435 (1995) ("By `grave doubt' we mean that, in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.").

When, in a federal habeas proceeding, we are "in grave doubt about whether a trial error of federal law had `substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless." Id. at 436; Bonin v. Calderon , 59 F.3d 815, 824 (9th Cir. 1995) (noting that where "a court finds itself utterly unable to determine whether the error was harmless .. . the court should not treat the error as harmless"). We therefore hold that the erroneous instruction that the jury"shall" return a death sentence if aggravation outweighed mitigation was reasonably likely to have violated Murtishaw's constitutional rights, and that the violation was not harmless. Consequently, we reverse the district court's denial of the habeas petition with regard to Murtishaw's death sentence. 

Hoffman claims he was entitled to a new trial because the evidence presented at the evidentiary hearing demonstrates the State withheld exculpatory evidence and there is a reasonable probability that had the defense known this information the result of the trial would have been different. We agree and remand this case to the trial court for a new trial. See Brady v. Maryland, 373 U.S. 83 (1963).

When a Brady violation is alleged, the defendant must establish a prima facie case that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). To meet this test, the defendant must prove: (1) the State possessed favorable evidence, including impeachment evidence; (2) the evidence was suppressed; and (3) there is a reasonable probability that, had the evidence been disclosed, the outcome would have been different. See Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley, 514 U.S. 419 (1995); Way v. State, 760 So. 2d 903 (Fla. 2000). Hair Evidence

First, Hoffman argues that the trial court erred in denying his claim that the State violated Brady by withholding the results of an exculpatory hair analysis, an analysis which excluded Hoffman, co-defendant White and the male victim, Ihlenfeld, as the sources of the hairs found in the female victim's hands. *fn5 The State contends that in its response to a discovery request, it disclosed the existence of a hair analysis to defense counsel. This disclosure, the State asserts, should have placed Hoffman's attorney on notice of any other evidence flowing therefrom. Evidence presented at the evidentiary hearing indicates a long brown hair was found in the right hand of Ms. Parrish, and hairs were found in the clutch of her left hand. Evaluation by the FDLE showed these hairs were Caucasian male head and pubic hairs that did not match that of the defendant or the male victim.

Hoffman argues this evidence was not available to defense counsel at trial because the report was not disclosed. The record indicates the defense filed a demand for discovery on November 5, 1981. The State answered the demand on November 6, 1981, and indicated there were scientific reports available concerning the autopsy, fingerprinting, blood analysis, and hair analysis. However, the report which indicated the Caucasian hair found in the female victim's hand did not match Hoffman's hair was not done until February 11, 1982. There is no indication that the State ever disclosed this report to the defense, and the State does not argue that this report was disclosed. Instead, the State essentially argues that defense counsel should have inquired further once told of the existence of other hair analyses.

The State's additional argument is that defense counsel Harris elicited information at trial from a serologist about the hairs. The information solicited, however, was merely the fact that hairs were gathered at the scene. The State asserts this testimony sufficiently apprised the defense of the existence of this evidence. This argument is flawed in light of Strickler and Kyles, which squarely place the burden on the State to disclose to the defendant all information in its possession that is exculpatory. In failing to do so, the State committed a Brady violation when it did not disclose the results of the hair analysis pertaining to the defendant.

However, in order to be entitled to relief based on this nondisclosure, Hoffman must demonstrate that the defense was prejudiced by the State's suppression of evidence. See Strickler, 527 U.S. at 280- 82. To make this determination, the suppressed evidence must be viewed in context with the other evidence that was presented at trial. The evidence at trial which tended to inculpate the defendant was a fingerprint lifted from a cigarette pack found at the scene matching Hoffman's fingerprint. The jury could have believed Hoffman was present at the scene of the crime based on this evidence. However, of saliva samples taken from cigarette butts found at the scene, none matched Hoffman's type AB blood. *fn6 The jury could also have believed, based on this evidence, that Hoffman was not in that motel room, but that one of his acquaintances who was present had Hoffman's cigarette pack or a cigarette pack Hoffman had touched at some point. Since Merrill, Mazzara, Hoffman and White all worked for the Provost organization, such a scenario is not an impossibility.

The other evidence linking Hoffman to the crime was his confessions to FBI agents and Jacksonville Beach Police officers. Hoffman argued at trial that he never made the Jackson, Michigan confession. Additionally, he argued the unrecorded statements given to the Jacksonville Beach police officers resulted from his drug addiction and did not contain any information that had not been published in the papers and known to everyone. Moreover, at the evidentiary hearing, Hoffman presented evidence that another suspect also confessed to the crimes.

Whether Hoffman was in fact in that motel room was an important issue that the jury had to resolve. Therefore, any evidence tending to either prove or disprove this fact would be highly probative. Hair evidence found in the victim's clutched hand could tend to prove recent contact between the victim and a person present in that room at the time of her death. With the evidence excluding Hoffman as the source of the clutched hair, defense counsel could have strenuously argued that the victim was clutching the hair of her assailant, but that assailant was not Hoffman.

Given the circumstances of this case, there is a reasonable probability, had the evidence been disclosed, that the outcome would have been different. See United States v. Bagley, 473 U.S. 667, 682 (1985). Therefore, the defendant is entitled to a new trial based on this Brady violation.

 If, instead of quoting scripture, the prosecutor in this case had attributed the same pronouncements found in the scriptures he quoted to the Georgia Supreme Court or a justice or other noted legal authority, we know from our decisions dealing with the Eberhart quotation, that the argument would have been improper. It is no less improper to attribute the same abjuration of mercy to the higher authority of the Bible. *fn19 The possibility always exists that some jurors will be at least as impressed by Biblical authority as by the authority of a court or a legal scholar. Recall that two of the jurors who decided Romine's fate actually discussed the meaning and effect of one of the scriptures the prosecutor urged on them, and one juror consulted a Bible to make sure that the prosecutor had one of the Bible verses right. It mattered to her.

 Because the prosecutor's extensive reliance upon anti-mercy scripture was improper in this case, we turn now to the second step of the legal analysis, which is to determine if the improper argument warrants habeas relief. Not all improper prosecutorial arguments require relief, because not all of them render the proceeding unfair, which is the measure of a due process violation. See Darden v. Wainwright, 477 U.S. 168, 179-81, 106 S.Ct. 2464, 2470-71 (1986) (relief not required merely because the argument "deserves the condemnation it has received from every court to review it"). A sentence proceeding is rendered unfair by an improper argument if, absent the argument, there is a reasonable probability that the result would not have been a death sentence, a reasonable probability being one which undermines our confidence in the outcome. See Spivey, 207 F.3d at 1275-76; Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988) ("[A]lthough we wholeheartedly condemn the prosecutor's remarks, we do not believe that these comments rendered Williams' sentencing proceeding fundamentally unfair."); Brooks, 762 F.2d at 1401; Tucker, 762 F.2d at 1504-05; Drake, 762 F.2d at 1458. In making this prejudice determination, "[o]f primary importance is the need to examine the entire context of the judicial proceeding." Brooks, 762 F.2d at 1400; accord, Cargill v. Turpin, 120 F.3d 1366, 1382 (11th Cir. 1997) ("after a thorough review of the full context of the sentence proceeding ..."); Gates v Zant, 863 F.2d 1492, 1503 (11th Cir. 1989) ("Considering the totality of the circumstances ....").

The circumstances here include a sentence stage trial saturated with evidence relating to religion, in which the jurors are sequestered at a Baptist assembly, where the judge suggested having "Brother Caylor out there" put the jurors in a room and "give you a good sermon." *fn20 Then the prosecutor in his closing argument gave the jurors a hell fire and brimstone mini-sermon the effect of which was to tell them that regardless of the law of Georgia, they ought to follow the law of God, as the prosecutor interpreted it to rule out any consideration of mercy. . . . 

An on-the-spot curative instruction from the court can make a difference, or failing that, improper argument can sometimes be remedied by the final instructions to the jury. Cargill, 120 F.3d at 1379; Brooks, 762 F.2d at 1400. There was no curative instruction from the court at the time of the argument, and the final instructions to the jury did not effectively cure the error, either. The court and both counsel did tell the jury that closing arguments were not evidence, but that did not help because the problem with this improper argument is not that it misstated the evidence, but that it misstated the law. The court's instructions to the jury, as well as both sides' arguments, stressed that the jurors were the judges of the law as well as the evidence. That did not help, either; instead, it may have hurt by leading some jurors to believe that they could substitute the Biblical law urged upon them by the prosecutor for the law of Georgia.

In most cases we are left to speculate about what effect, if any, closing argument may have had on the jury, but here we know that this improper argument led at least two members of the jury into a discussion about its content, a discussion in which one of them argued to the other the precise point of the improper argument. And we know that a juror cared enough about the argument to check one of the scriptures that the prosecutor had used in order to ensure that he had quoted it correctly.

Of course, the relative strength of the aggravating and mitigating circumstances is an important factor to be considered in deciding whether there is a reasonable probability that but for the improper argument the result might have been different. See Cargill, 120 F.3d at 1379; Brooks, 762 F.2d at 1415-16; Tucker (Richard), 762 F.2d at 1509.

One ready measure of that in this case is the fact that the jury in this case was initially deadlocked on whether the sentence should be life or death. The foreman initially told the judge that there was a wide division and the jurors did not believe they could reach a decision, which under Georgia law would have resulted in a life sentence. See Hill v. State, 301 S.E.2d 269, 270 (Ga. 1983). After an overnight recess and further deliberations, the jury sent the court a note announcing with certainty that it would never be able to reach a unanimous decision. Only after the court gave the jurors an Allen charge did they finally reach a verdict. The difficulty the jury had in reaching a verdict, especially when coupled with the evidence that one or more jurors were affected by the improper argument, weighs in favor of concluding that there is a reasonable probability that argument may have affected the result.

The primary factor weighing against a finding that the improper argument rendered the sentencing proceeding unfair is the lack of any contemporaneous objection to it. See Cargill, 120 F.3d at 1379; Williams, 846 F.2d at 1283 ("[T]hat no objection was made during the prosecutor's closing argument further supports our belief that the statement was not severe enough to render the sentencing hearing fundamentally unfair."); Brooks, 762 F.2d at 1397 n.19 (the absence of an objection "may demonstrate defense counsel's belief that the live argument, despite its appearance in a cold record, was not overly damaging"). We have considered that, and given it weight, but the factors pointing in the other direction in this case outweigh the implications of counsel's failure to object. See Drake, 762 F.2d at 1460-61 & n.16 (relief due because of improper Eberhart quotation argument notwithstanding the absence of any contemporaneous objection to it).

We have previously described why the improper argument here is closely analogous to the Eberhart quotation argument which we have found to be improper all seven times we have considered it. The scripture- quoting argument in this case, like the Eberhart-quoting argument, strikes at the heart of one of a Georgia jury's most important roles in a capital sentence proceeding, which is to make an individualized determination of whether mercy should be afforded in a specific case to a particular defendant. In six of the seven cases in which this Court has considered the Eberhart quotation argument, we have decided that its use rendered the sentence proceeding unfair, concluding that it undermined our confidence in the result to such an extent that habeas relief was required. See Nelson, 995 F.2d at 1557-58. We reach the same conclusion here. In view of all of the facts and circumstances, the prosecutor's improper argument in this case undermines our confidence in the sentencing result to such an extent that habeas relief is required as to the sentence.

The trial court instructed the jury to consider its sentencing options of death, life imprisonment, and life imprisonment without the possibility of parole. During its deliberations, the jury inquired "We need to know! Is life without parole firm - Does it mean he can never be paroled [?]" Trial Court's Ex. #2 (emphasis in original). The trial court informed the jury that "[i]t is inappropriate for you to consider the question asked." Trial tr. vol. IV at 746. Johnson asserts that the trial court's response violated Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality), which "requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues," as it did here, "that he presents a future danger," O'Dell v. Netherland, 521 U.S. 151, 153 (1997).

As a threshold matter, the State argues that Teague v. Lane, 489 U.S. 288 (1989), bars the retroactive application of Simmons to this appeal. Simmons does set forth a new rule of law that cannot be used to disturb a death sentence that became final prior to that decision, issued June 17, 1994. See O'Dell, 521 U.S. at 153. Johnson's death sentence, however, did not become final until the Oklahoma Court of Criminal Appeals upheld his conviction and sentence on direct review, in August 1996, and the United States Supreme Court denied his petition for certiorari, on October 6, 1997. See, e.g., Caspari v. Bohlen, 510 U.S. 383, 390 (1994). Therefore, because Johnson's death sentence was not yet final at the time the Supreme Court decided Simmons, there is no retroactivity problem.

In Simmons, the trial court instructed the jury on its sentencing options of death or life imprisonment. See 512 U.S. at 158-60. Under applicable state law, however, the petitioner could never become eligible for parole. See id. at 158 n.2. The Supreme Court held that, where the State argues in a capital sentencing proceeding that the petitioner presents a future threat, due process requires that he be permitted to inform the jury that he is parole ineligible. See O'Dell, 521 U.S. at 153; Simmons, 512 U.S. at 156.

In this case, on the other hand, the trial court instructed the jury on its three discrete sentencing options available under Oklahoma law--death, life imprisonment and life imprisonment without the possibility of parole. We have held that instructing on these three options, without any further explanation, satisfies Simmons. See Mayes, 210 F.3d at 1294. Further, a trial court, in response to a jury's inquiry as to the meaning of a life sentence without parole, may simply refer the jury back to the instructions as given. See McGregor v. Gibson, 219 F.3d 1245, 1256 (10th Cir. 2000), overruled on other grounds, 2001 WL 359509 (10th Cir. Apr. 11, 2001). However, instead of simply referring the jury back to the court's original instructions, "the trial court told the jury it was not appropriate for it to consider whether the defendant could `never be paroled.'" Johnson, 928 P.2d at 320.

In Oklahoma, "the jury is not to be told of the inner workings of the parole system, even when it must compare two life sentences: one with the possibility of parole, and one without the possibility of parole." Id. This, however, does not obviate the need for a correct instruction concerning the three options, including life without parole. Simmons, 512 U.S. at 166. That a state may limit information given to juries about parole does not eliminate the need to inform the jury of parole ineligibilty where future dangerousness is at issue. Id. at 168- 69.

Although it did not specifically address Simmons, the state appellate court correctly held that the trial court's response was error because "the jury must consider the distinctions between life, life without parole and death as it reaches its sentencing decision." Johnson, 928 P.2d at 320. The state appellate court, however, deemed this error harmless beyond a reasonable doubt because the trial court's response was, in effect, "non-responsive" to the jury's inquiry and, as a result, had the effect of guiding jurors back to the plain language of the original instruction. Id.

It is not entirely clear whether the state appellate court applied Simmons. It did not cite Simmons, but rather Mayes v. State, 887 P.2d 1288, 1318-18 (Okla. Crim. App. 1994). However, it then applied the Chapman v. California, 386 U.S. 18, 24 (1967), harmless error test after concluding that the jury was misinstructed. Johnson, 928 P.2d at 320. This suggests that federal law including the substance of Simmons was applied. If so, we conclude that it was an unreasonable application of harmless error to the Simmons error, an error made more apparent by Shafer v. South Carolina, 121 S. Ct. 1263 (2001). See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 413 (2000). In the alternative, we would review the district court's legal conclusions on the Simmons issue de novo and reject them. The district court attempted to distinguish Simmons on several grounds, however, we are not persuaded given that Simmons rests upon eliminating a jury's misunderstanding so the jury will not perceive a "false choice" between sentencing to death or a limited period of incarceration when future dangerousness is at issue. Simmons, 512 U.S. at 161-62.

In Shafer, the jury was instructed that "life imprisonment means until death of the offender," but the trial court, over defense objection, did not instruct "that a life sentence, if recommended by the jury, would be without parole." Shafer, 121 S. Ct. at 1269 (internal quotations omitted). Thereafter, the jury sent a note inquiring "`1) Is there any remote chance for someone convicted of murder to become elig [i]ble for parole?'" and "`2) Under what conditions would someone convicted of murder be elig[i]ble?'" Id. The trial court responded with "`Parole eligibility or ineligibility is not for your consideration." Id.

Although South Carolina maintained that Simmons did not apply, the Court extended Simmons to situations where the jury's choice is between life without parole and death, even if a third alternative encompassing release is available to the court. Id. at 1273. The Court held that "whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that the life sentence carries no possibility of parole." Id. The Court recognized that the jury was confused by the absence of such instruction as evidenced by its further question about parole eligibility, and firmly rejected the trial court's response that parole eligibility was not for the jury's consideration.

The jury's comprehension was hardly aided by the court's final instruction: "Parole eligibility or ineligibility is not for your consideration." That instruction did nothing to ensure that the jury was not misled and may well have been taken to mean "that parole was available but that the jury, for some unstated reason, should be blind to this fact." Id. at 1274 (internal citations omitted) (emphasis in original).

The "reality [of a life sentence without parole] was not conveyed to Shafer's jury by the court's instructions . . . ."

The same is true here. Contrary to the state appellate court's harmless error analysis, Johnson, 928 P.2d at 320, the trial court's instruction that it was inappropriate for the jury to consider parole eligibility did not refer the jury back to the instructions; rather, it plainly contradicted those instructions. The trial court did more than give a non-responsive answer-it told the jury that parole eligibility could not be considered when plainly it could be. At best, the jury had a conflict between the court's instructions as to whether it was proper to consider parole eligibility in imposing sentence. At worst, the jury may very well have thought that parole was available, even with the life without parole option, but for some unknown reason it could not consider that fact.

Harmless error is a mixed question of law and fact. Hunt v. Oklahoma, 683 F.2d 1305, 1309 (10th Cir. 1982). Given the need for heightened reliability in determining a capital sentence, we hold that the state appellate court's determination that the instruction was harmless error constitutes an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). To the extent that the state appellate court did not rely upon Simmons, we would conclude that the incorrect instruction "had substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and cannot be deemed harmless error. Under either approach, see Bryson v. Ward, 187 F.3d 1193, 1204-06 (10th Cir. 1999), the judgment of the United States District Court for the Eastern District of Oklahoma must be REVERSED.

This Court has indicated on numerous occasions that a defendant is entitled to an evidentiary hearing on his initial post-conviction motion unless (1) the motion, files and records in the case conclusively show that the defendant is not entitled to any relief, or (2) the motion or a particular claim is legally insufficient. See Maharaj v. State, 684 So. 2d 726 (Fla. 1996); Holland v. State, 503 So. 2d 1250 (Fla. 1987). The defendant in a post-conviction proceeding bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. See Kennedy v. State, 547 So. 2d 912 (Fla. 1989). This Court, however, in determining whether or not an evidentiary hearing on a claim is warranted must accept the defendant's factual allegations to the extent they are not refuted by the record. See Peede v. State, 748 So. 2d 253 (Fla. 1999).

Where ineffective assistance of counsel is alleged, the defendant must establish a prima facie case that there was deficient performance by counsel and that there is a reasonable probability that the deficient performance affected the outcome of the proceeding. Because the record in this case does not conclusively refute Cook's allegations of ineffective assistance of counsel at the penalty phase, the trial court must conduct an evidentiary hearing to determine if counsel failed to investigate Cook's family history and possible mental health mitigators, and whether there is a reasonable possibility that such failure, if any, affected the outcome of the penalty proceeding. See Strickland v. Washington, 466 U.S. 668 (1984).

The record indicates that only one mitigating factor and two aggravating factors were found by the trial court. *fn2 On direct appeal Cook argued the trial court erred in failing to find the two statutory mitigators of extreme mental or emotional disturbance and diminished capacity to appreciate the criminality of his conduct. Cook now alleges counsel failed to properly investigate the mental mitigators and Cook's family and personal background. In addition, Cook argues counsel waited until the day before the penalty phase hearing to seek the assistance of a mental health expert.

While counsel presented the testimony of Dr. Haber, *fn3 a clinical psychiatrist, at the penalty phase hearing, Dr. Haber's evaluation of Cook was done the morning of the penalty phase hearing. Furthermore, Cook alleges the opinions rendered by the expert were based on this brief evaluation and Cook's self-reporting. Thus, Cook argues Dr. Haber, without being given family and other background information, was unable to support her testimony with other evidence. The record also indicates that some general information concerning Cook's nonviolent past, *fn4 religion, *fn5 rehabilitation, *fn6 and others' evaluations of Cook as "slow" was presented at the penalty hearing.

However, Cook complains that had counsel fully investigated his family and background, he would have been able to better cross-examine the witnesses that were presented. Counsel would have also discovered additional mitigating evidence including a long history of drug use, abuse as a child, racial threats and attacks upon moving to Florida, the death of a close sibling at an early age, a learning disability, and growing up in an atmosphere of chaos and instability.

Given the scarce mitigating evidence presented at the penalty phase, Cook is entitled to an evidentiary hearing on the issue of counsel's effectiveness at that stage of the proceeding. See Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Rose v. State, 675 So. 2d 567 (Fla. 1996).

The District Court, while denying relief in this second petition, granted a certificate of appealability, persuaded that whether Stewart v. Martinez-Villareal, 523 U.S. 644 (1998), overruled our decision in In Re: Davis, 121 F.3d 952 (5th Cir. 1997), presents a substantial question about which reasonable jurists may differ. 

The district court's grant of a certificate of appealability has no significance if the petitioner is prosecuting a successive writ - and he clearly is. Of course, this does not answer the question of whether a Ford claim is subject to the limits of a successive writ. That is a distinct question.

As for that, we do not read the decision of the Supreme Court in Stewart v. Martinez Villareal as overruling or casting doubt on our decision in In Re: Davis. Rather, the Supreme Court by footnote explicitly declined to decide the case of a petitioner who did not present his Ford claim in his first federal habeas, as did Martinez Villareal.

III

This leaves the argument that Richardson did not have a Ford claim at the time he filed his first federal habeas, a contention with two aspects. The first is that the factual basis for the Ford claim could not have been discovered at the time of the first federal habeas. That claim is refuted by the assertion that he has long suffered this bipolar disorder and by his own expert witness. The second aspect is that the Ford claim was not ripe when the first federal habeas petition was filed for the reason that execution was not then imminent. To accept this argument would mean as a practical matter that no Ford claim would need to be presented in a first filed habeas, given that state courts, in part at our urging, now seldom set execution dates until after the first round of appeals and habeas. 

We need not wrestle that issue at this late date given the findings of fact issued by the 175th Judicial District Court and approved by the Texas Court of Criminal Appeals. Those findings included findings that the applicant "presents no factual information, however, concerning his current mental health status." The court also found that "applicant points to nothing which shows that he is presently incompetent to be executed." The state habeas court detailed record evidence to support its conclusion that "based on all of the foregoing, the Court finds that applicant understands that he is to be executed, that his execution is imminent, and the reason for his execution." 

IV

There are several difficulties with petitioner's claim of involuntary medication, including whether it is cognizable in habeas. The larger and first hurdle for petitioner is that this claim has no factual legs. The state habeas court found that no such showing of involuntary medication was made and that there was no showing that the medication was given "for the purpose of making him competent to be executed." The state habeas court pointed to affidavits of Dr. Peccora and Gwendolyn Bundy that the applicant was not involuntarily medicated. Finally, the state habeas court found "Dr. Sparks affirms that he found nothing, in all the records that he reviewed, which contradicts Dr. Peccora's statement that Richardson accepted and received the medications voluntarily." 

V

Ford claims admittedly have an uneasy fit with the AEDPA's limits upon successive writs. We examined that fit in In re: Davis and remain convinced that it is both sound and binding. 

In his second issue for which he seeks a COA, Rudd argues that he was denied his constitutional rights by the trial court's jury instructions at the punishment phase.(1) This claim is also two-headed. First, Rudd maintains that the jury instructions violated the Eighth Amendment doctrine of heightened reliability because they did not provide the jury with any guidance about the meaning of a life sentence and, therefore, allowed the jury to speculate about the length of such a sentence. Second, he contends that the jury instructions violated his due process rights. According to Rudd, his entire argument that he did not pose a future danger and, thus, should not be executed was premised on the State's alleged failure to present evidence suggesting that he would be a danger in prison society. But Rudd charges that the trial court's jury instructions induced the jury to speculate about Rudd's parole eligibility. As a result, the future dangerousness issue extended to free society, and Rudd contends that he should have been afforded the opportunity to rebut the State's argument by showing the jury that he would not have been eligible for parole for at least fifteen years.

To support his claim, Rudd principally relies on Simmons v. South Carolina, 114 S. Ct. 2187 (1994). In Simmons, a death penalty case, a plurality of the Supreme Court observed that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible."(2) Id. at 2190. It, however, did not delve into situations, such as here, where parole may be available. Id. at 2196. A compelling reason for the plurality's holding was that "[t]he Due Process Clause does not allow the execution of a person 'on the basis of information which he had no opportunity to deny or explain.'" Id. at 2192. More precisely, the plurality was concerned that the jury instructions in Simmons created a mistaken understanding on the part of the jury that it could only sentence the defendant to death or sentence him to a limited period of incarceration. Id. at 2193. As that was a false choice, the defendant had to have the opportunity to deny or explain his situation by proffering an instruction that he was ineligible for parole. Id.

Here, the jury did not confront a false choice that needed to be denied or explained. Under Texas law, Rudd would have been eligible for parole after serving fifteen years in prison. Contrary to Simmons, the jury would not have been mistaken if it believed that it could only sentence Rudd to death or to a limited period of incarceration. And a jury instruction on Rudd's parole eligibility would not have denied or explained the State's argument that Rudd was a future danger to free society.(3) Unlike in Simmons, where the defendant was ineligible for parole and had virtually no chance of being released from prison, a jury instruction in the instant case would not have explicitly denied or rebutted the State's argument that Rudd was a future danger to free society because Rudd would have been eligible for parole. Although Rudd believes that information about his parole eligibility after fifteen years could have made a great deal of difference, "how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative." Simmons, 114 S. Ct. at 2196. In fact, a jury instruction on parole eligibility could just as well have reinforced the State's argument about future dangerousness because Rudd would have been eligible for parole at the fairly young age of thirty-three. 

Likewise, we found Simmons unavailing in a case similar to Rudd's. See Miller v. Johnson, 200 F.3d 274 (5th Cir.), cert. denied, 121 S. Ct. 122 (2000). In Miller, the defendant argued that, "had the jury been informed that a life sentence would require him to spend fifteen calendar years in prison before becoming eligible for parole, a member of the panel could have been convinced that he would not pose a future danger." Id. at 290. We noted that "Simmons requires that a jury be informed about a defendant's parole ineligibility only when (1) the state argues that a defendant represents a future danger to society, and (2) the defendant is legally ineligible for parole." Id. at 290. (emphasis added). Because Simmons is distinguishable and because Rudd fails to cite any other cases directly supporting his position, we return to our long-held precedent that "'neither the due process clause nor the Eighth Amendment compels instructions on parole in Texas.'" Id. at 291 (quoting Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995)). Accordingly, we see no substantial showing of the denial of a constitutional right based on the trial court's jury instructions at the punishment phase and deny Rudd's request for a COA on his second issue.

According to Thompson's testimony at the Jackson-Denno hearing *fn2 on his motion to suppress the confession, he was interrogated by Detective A.G. Lang on the day he was arrested for approximately one hour. Lang told Thompson that he could place Shirley Franklin at the well, that Franklin was in a cell downstairs in the jail, and that she would be tried and sentenced to the electric chair along with him, but that he would let her go if Thompson made a statement. Thompson then asked to talk with Franklin, and Franklin was immediately brought in, in handcuffs, to speak with Thompson. Thompson told her that he was going to confess because Lang had promised to release her if he did so. Franklin responded that she loved him. After meeting with Franklin, Thompson told Lang that he was ready to confess. Lang then notified Sheriff McDowell. When McDowell arrived, he gave Thompson a waiver of rights form, which Thompson signed, and then proceeded to take his tape- recorded confession.

In rebuttal, the state called Sheriff McDowell. McDowell testifed that, before Thompson gave his confession, Thompson had asked to speak with both Lang and Franklin. After he had spoken with Lang and Franklin, and after McDowell had informed Thompson of his Miranda rights, Thompson gave his confession. McDowell stated that at no time in his presence were any promises, threats, or coercion made to Thompson, and that no one told Thompson that Franklin would be prosecuted for capital murder unless Thompson confessed.

On appeal, Thompson argues that because the state court misapplied governing law and failed to make any factual findings, he was entitled to a federal evidentiary hearing to resolve the factual dispute as to the circumstances under which Thompson gave his confession. We agree that the state trial court made no findings of fact after the Jackson- Denno hearing regarding Thompson's claim of coercion and that the Alabama Court of Criminal Appeals likewise made no factual findings. *fn3 However, we conclude, as a matter of law, that Thompson's version of events, even if true, would not make his statement involuntary, and therefore he is not entitled to relief on this claim.

Under certain circumstances, the Supreme Court has found that police deception invalidates an accused's waiver of the Fifth Amendment privilege. *fn4 See, e.g., Lynumn v. Illinois, 372 U.S. 528 (1963) (misrepresentation by police officers that a suspect would be deprived of state financial aid for her dependent child if she failed to cooperate with authorities rendered the subsequent confession involuntary); Rogers v. Richmond, 365 U.S. 534 (1961) (confession involuntary where defendant confessed when police chief pretended that if defendant did not confess the defendant's ailing wife would be arrested).

In this case, unlike in Lynumm and Rogers, Thompson's girlfriend, Shirley Franklin, had voluntarily implicated herself in the murder prior to Thompson's arrest. Although the Supreme Court has not addressed police promises for leniency to a possible co-defendant, this Court has done so in the context of negotiating a guilty plea. See Martin v. Kemp, 760 F.2d 1244, 1247-48 (11th Cir.1985). While significant differences exist between a defendant's plea in open court and a custodial interrogation, the principles addressed by this Court in determining what constitutes police overreaching appear to us equally applicable in this context. In Martin, a habeas petitioner argued that his confession and guilty plea were involuntary because they were prompted by police threats to bring charges against his young pregnant wife. This Court found that while probable cause existed at the time of Martin's plea hearing to file criminal charges against Martin's wife, it was unclear from the record on appeal whether the police had probable cause at the time the threat was actually made. We held that whether a threat to prosecute a third party was coercive depends upon whether the state had probable cause to believe that the third party had committed a crime at the time that the threat was made and remanded for this determination. Id. at 1248-49. See also United States v. Nuckols, 606 F.2d 566, 569 (5th Cir.1979) (remanding for a hearing on whether threats to prosecute defendant's wife were based on probable cause and explaining that "absent probable cause to believe that the third person has committed a crime, offering `concessions' as to him or her constitutes a species of fraud."). In this case, Shirley Franklin's own statement established her participation in the crime. She acknowledged that she accompanied Thompson back to the crime scene and held a torch while he again shot into the well, assisted him in cleaning the murder weapon, and then accompanied him to dispose of it. Under the circumstances, the police had probable cause to arrest her at the time A.G. Lang allegedly told Thompson that she could have faced responsibility for the crime. Under the rationale of Martin, the alleged statement regarding Shirley Franklin did not constitute coercion. Accordingly, we reject Thompson's argument that he was coerced into confessing and, thus, find no error in the admission of the confession.

State v. Sansing (Ariz.) Even though the sentencing judge improperly found the existence of murder for pecuniary gain, sufficient aggravators remained to override the mitigation presented at trial.

Wrinkles v. State (Ind.) (net unavailable) The trial court's adoption en toto of the state's proposed findings of fact is entitled to deference save for clear error.

State v. Bane (Tenn.) Relief denied holding " (1) the trial court did not err in refusing to instruct the jury that a witness for the prosecution, Brian Lovett, was an accomplice whose testimony had to be corroborated in order to find an aggravating circumstance; (2) the trial court did not err in refusing to admit Bryan Lovett's medical and psychological records; (3) the trial court did not err in refusing to allow the defendant's expert witness to remain in the courtroom; (4) the trial court did not err in allowing the prosecution to argue a "non-statutory" aggravating circumstance; (5) the evidence was sufficient to support the jury's application of the aggravating circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(5) (1982); (6) the evidence was sufficient to support the jury's application of the aggravating circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(6) (1982); and (7) the sentence of death was not arbitrary or disproportionate as applied in this case to the defendant."

Slawson v. State (Fla.) Affirmance of the "circuit court's order finding Slawson competent to make a knowing, intelligent, and voluntary waiver of collateral counsel and collateral proceedings."

Jones v. Moore (Fla.) Relief denied on claims that: "(1) his appellate counsel was ineffective for failing present error regarding the admission of details surrounding Jones's prison escape and certain photographic evidence; (2) his appellate counsel was ineffective for failing to present the trial judge's denial of severance; (3) his appellate counsel was ineffective for failing to present the denial of Jones's request to exclude autopsy photographs; (4) his appellate counsel was ineffective for failing to present improper prosecutorial comments constituting fundamental error; (5) this Court applied the incorrect standard when reviewing Jones's mitigation; (6) this Court improperly upheld the trial judge's instruction to the jury of two legally inapplicable aggravators; and (7) this Court erred by applying an incorrect harmless error review after striking an aggravator."

Johnson v. State (Ala.Crim.App.) (net unavailable) Relief denied on claims relating to death qualification of jurors, peremptory challenges based on race, inflammatory presence of excessive law enforcement, & prosecutorial misconduct inappropriately argued different shooters committed the crime in differing prosecutions, amongst other claims.

State v. Christeson (Mo) Relief denied on claims that the trial court erred in: denying defense counsel's motion to withdraw,  denying a continuance; refusal to allow individual questioning; admitting inflammatory evidence & admitting evidence of prior bad acts.  Relief also denied on claims of improper bolstering of witnesses; juror misconduct; prosecutor's improper prosecutorial comments; double counting conduct for sentencing purposes;  & that the trial transcript is materially inaccurate.

Morton v. State (Fla)  Relief denied on claims that "(1) the State made numerous improper comments during closing argument in the penalty phase of the trial that entitle him to a new penalty phase; (2) the trial court failed to consider, find, and weigh mitigating evidence that Morton suffered from antisocial personality disorder; (3) the trial court erred in giving diminished weight to the mitigating circumstances of Morton's age and history as an abused child; and (4) the resentencing judge erred by adopting the original sentencing judge's findings of fact regarding the aggravating and mitigating circumstances."

Commonwealth v. Natividad (Pa.) State supreme court, while affirming sentence and conviction, splits sharply on whether the victim impact evidence at bar conformed to federal constitutional norms.

Commonwealth v. Means (Pa.) State supreme court, while affirming sentence and conviction, splits sharply on whether the victim impact evidence at bar conformed to federal constitutional norms.

Other Notable Cases (As reported by Findlaw, and other sources) 
Duncan v. Morton (3rd Cir) Where defense counsel's partnership with the shooter's attorney did not become official until after the trial of the accomplice, the accomplice cannot show actual conflict of interest merely on the basis that the attorneys shared fees or made special appearances for each other.

Tinker v. Moore (11th Cir) Under 28 USC 2244(d)(1), an application for state post-conviction relief filed after the expiration of the federal habeas limitations period cannot toll the statute of limitations for filing a federal habeas petition.

Gary v. Dormire (8th Cir) Missouri Revised Statute Sec. 562.076.3, making evidence of voluntary intoxication irrelevant insofar as the mental elements of the crime are concerned, is constitutional, and MAI-CR3d Sec. 310.50 does not unconstitutionally shift the burden of proof and does not violate due process.

Hatcher v. Hopkins (8th Cir) Where petitioner filed his habeas petition more than two years past the required date for a timely petition, the appeal is untimely, and the court is barred from reviewing it on the merits.

Moore v. Marr (10th Cir) In assault case where defendant claimed self-defense and his credibility versus victim's credibility was key issue, counsel's failure to impeach victim does not constitute ineffective assistance where other witnesses corroborated victim's testimony.

Gassler v. Bruton (8th Cir) The possession of a trial transcript is not a condition precedent to the timely filing of post-conviction proceedings for habeas relief.

Farver v. Schwartz (8th Cir) Habeas is the sole remedy for restoration of good-time credits, but court erred in dismissing prisoner's claims of a retaliatory discipline report and a transfer in retaliation for exercising his right to ask for legal assistance.

Bruce v. United States (7th Cir) Where petitioner's only defense was an alibi, he was entitled to an evidentiary hearing to resolve factual disputes about the reasonableness of his defense counsel's decision to forgo interviewing potential alibi witnesses, since such a decision cannot, without some factual basis, be considered a tactical choice entitled to deference.

Quintero v. Bell (6th Cir) A jury is not fair and impartial under the Sixth Amendment when seven of its members had previously sat on a jury that convicted defendant's co-conspirators.

Tinker v. Hanks (7th Cir) Indiana state prisoners seeking post-conviction relief under Ind. R. Proc. Post-Conviction Remedies 1(12) are subject to a pre-filing requirement mandating that they seek leave of court to file a second or successive application for such relief.

Van Buskirk v. Baldwin (9th Cir) For purposes of habeas review of procedurally defaulted claims based on new evidence supporting petitioner's claim of actual innocence, the evidence is "new" only if it could not have been discovered at trial through the exercise of due diligence.

Daniels v. United States  (10th Cir) The new AEDPA's substantive standards work no impermissibly retroactive effect on the habeas petition of a prisoner who can meet the pre-AEDPA requirements for raising an Apprendi claim in a successive petition under 28 USC 2255.

Brown v. Jones (11th Cir) Prosecutor's interview with witness was not unduly coercive where it lasted only two hours, was tape recorded and merely demanded that witnesses tell the truth.

People v. McCoy (CA) An aider and abettor may be guilty of greater homicide-related offenses
than those which a jury found the actual perpetrator committed.

People v. Russo(CA) A conviction for conspiracy does not require the jury to agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy.

People v. McIntosh (NY) Absent conduct by a passenger, or other particular reasons giving rise to an encounter, law enforcement knowledge about the origin of a commercial passenger bus is an insufficient legal basis to ask everyone traveling on the bus to produce bus tickets and identification.

Featured 
With the end of the Supreme Court's term, the Federal Defender's Office for the Western District of Texas has offered this review of the term.     (http://fpd.home.texas.net/fpdcert.htm)

BUREAU OF PRISONS--STATUTORY AUTHORITY

Case: Lopez v. Davis
Lower Court Opinion: Bellis v. Davis, 186 F.3d 1092 (8th Cir. 1999), cert. granted, 2000 WL 431335 (U.S. April 24, 2000) (No. 99-7504).

Question Presented: Whether the Bureau of Prisons acted within its statutory authority in adopting regulations under which inmates who had been convicted of being a felon in possession of a firearm, or had received a sentencing enhancement for the possession of a dangerous weapon during the commission of a federal drug offense, were categorically ineligible for an early-release incentive under a voluntary residential drug abuse treatment program for prison inmates.

Decided January 10, 2001
 

CAPITAL CASES--PAROLE ELIGIBILITY INSTRUCTION

Case: Shafer v. South Carolina
Lower Court Opinion: State v. Shafer, 531 S.E.2d 524 (S.C.May 8, 2000), cert. granted, 2000 WL 1057649 (U.S. Sept. 26, 2000) (No. 00-5250).

Question Presented:  Whether a capital defendant's due process rights were violated by a trial court's refusal to instruct the jury at sentencing that the defendant would be ineligible for parole under South Carolina law if the jury were to vote for a life sentence.

Decided March 20, 2001
 

CAPITAL CASES--MITIGATING CIRCUMSTANCES INSTRUCTION

Case: Penry v. Johnson
Lower Court Opinion: Penry v. Johnson, 215 F.3d 504 (5th Cir.), cert. granted, 2000 WL 1629296 (U.S. Nov. 27, 2000)(No. 00-6677).

Questions Presented:

(1) Whether the mitigating circumstances instructions given at petitioner's second trial were unconstitutional, inasmuch as the instructions directed the jury to consider and give effect to any mitigating circumstances supported by the evidence by answering "no" to one of the special issues if they felt a life sentence was appropriate.

(2) Whether a psychiatrist appointed by the court on defense counsel's motion, whose report is used as evidence for the prosecution, is an "agent of the state" for purposes of the Fifth Amendment holding of  Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).

Decided June 4, 2001
 

CONTROLLED SUBSTANCES ACT--MEDICAL NECESSITY DEFENSE

Case: United States v. Oakland Cannabis Buyer's Cooperative
Lower Court Opinion: 190 F.3d 1109 (9th Cir. 1999), cert. granted, 121 S. Ct. 563 (U.S. Nov. 27, 2000) (No. 00-151).

Question Presented:  Whether medical necessity is a legally cognizable defense to violations of the Controlled Substances Act, 21 U.S.C. sec. 801 et seq., which prohibits the manufacture and distribution of various drugs, including marijuana.

Decided May 14, 2001
 

EQUAL PROTECTION--DERIVATIVE CITIZENSHIP UNDER 8U.S.C. 1409

Case: Nguyen v. INS
Lower Court Opinion: Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), cert. granted, 2000 WL 868562 (U.S. Sept. 26, 2000) (No. 99-2071).

Question Presented: Whether 8 U.S.C. 1409, which makes it more difficult for male United States citizens to confer citizenship on their offspring born out of wedlock outside the United States than for female United States citizens to do so, violates Equal Protection guarantees.

Decided June 11, 2001
 

EX POST FACTO--RETROACTIVE ABOLITION OF "YEAR-AND-A-DAY"RULE

Case: Rogers v. Tennessee
Lower Court Opinion: State v. Rogers, 992 S.W.2d 393 (Tenn. 1999), cert. granted, 2000 WL 649207 (U.S. May 22, 2000) (No.99-6218)

Question Presented: whether retroactive application of the decision abolishing the common law year-and-a-day rule, under which a murder prosecution was precluded if the victim did not die within a year and one day after suffering fatal wounds, violated the defendant's due process rights.

Decided May 14, 2001
 

FIFTH AMENDMENT—SELF-INCRIMINATION

Case: Ohio v. Reiner
Lower Court Opinion: 731 N.E.2d 662 (Ohio, July 26, 2000), cert. granted, 2001 WL 262448 (U.S. March 19, 2001) (No. 00-1028).

Question Presented: Whether a witness's denial of all culpability for a crime does not prevent the witness from validly claiming the Fifth Amendment privilege against compelled self-incrimination.

Decided March 19, 2001
 

HABEAS CORPUS--CAGE V. LOUISIANA JURY INSTRUCTION CHALLENGE

Case: Tyler v. Cain
Lower Court Opinion:  Tyler v. Cain, 218 F.3d 744 (5th Cir.), cert. granted, 2000 WL 1280952 (U.S. Dec. 11, 2000) (No. 00-5961).

Question Presented:

(1) Whether a petition for a writ of habeas corpus asserting a claim of error under Cage relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," within the meaning of  28 U.S.C.A. 2244(b)(2)(A) of the AEDPA.

(2) Whether the new rule of constitutional law announced by the Supreme Court in Cage should be made retroactively applicable to petitioners seeking collateral review of their convictions.

Decided June 28, 2001
 

HABEAS CORPUS--CHALLENGE TO PRIOR CONVICTION USED FOR SENTENCE ENHANCEMENT

Case:  Daniels v. United States
Lower Court Opinion:  United States v. Daniels, 195 F.3d 501 (9th Cir. 1999), cert. granted, 2001 WL 464117 (U.S. Sept. 8, 2000)(No. 99-9136).

Question Presented:  "Under Custis v. United States, 511 U.S. 485 (1994), the defendant may not, at his federal sentencing proceeding, collaterally attack prior convictions (on grounds other than the denial of counsel) that are used to impose a fifteen-year mandatory minimum term under the Armed Career Criminal Act.  This case presents the issue left open in Custis: whether the defendant may use federal habeas to reopen his federal sentence and challenge constitutionally infirm prior convictions that were used to enhance his sentence."

For the Fifth Circuit case on point, see United States v. Clark, 203 F.3d 258 (5th Cir. 2000).

Decided April 25, 2001
 

HABEAS CORPUS--CHALLENGE TO PRIOR CONVICTION USED FOR SENTENCE ENHANCEMENT

Case: Lackawanna County Dist. Atty. v. Coss
Lower Court Opinion: Coss v. Lackawanna County Dist. Atty., 204 F.3d 453 (3d Cir. 2000), cert. granted, 2000 WL 694197 (U.S. Oct. 10, 2000) (No. 99-1884).

Question Presented: Whether the custody requirement of the federal habeas corpus statute precludes, under all circumstances, a challenge upon a fully expired conviction that was used to enhance a current conviction under habeas attack and for which the petitioner is presently in custody.

Decided April 25, 2001
 

HABEAS CORPUS—“NEW RULE” DOCTRINE—STATE COURT APPLICATION

Case: Fiore v. White
Lower Court Opinion: 149 F.3d 221 (3d Cir. 1998)

Questions Presented:

(1) Did state can flout due process and evade federal habeas corpus relief for incontestably innocent prisoner by claiming that appellate decision constituted “new law” regarding crime for which, if subsequent state ruling were applied, state did not and could not prove key element at trial?

(2) Should federal habeas relief be extended to protect federal constitutional rights in case in which state refuses to retroactively apply decision that was based on already-existing clear language of statute.

Decided January 9, 2001
 

HABEAS CORPUS--SUFFICIENTLY SIGNIFICANT INCREASE IN SENTENCE

Case: Glover v. United States
Lower Court Opinion:  Glover v. United States, 182 F.3d 921 (7th Cir. 1999), cert. granted 2000 WL 268498 (U.S. June 26, 2000).

Question Presented:  When petitioner seeks habeas relief based on ineffective assistance of counsel at sentencing, whether a potential 6 to 21 month decrease in sentence is sufficiently significant to be cognizable on collateral attack under 28 U.S.C. 2255.

Decided January 9, 2001
 

HABEAS CORPUS--TOLLING--ANTITERRORISM  AND EFFECTIVE DEATH PENALTY ACT (AEDPA)

Case: Artuz v. Bennett
Lower Court Opinion: Bennett v. Artuz, 199 F.3d 116 (2d. Cir 1999), cert. granted, 2000 WL 122154 (U.S.April 24,  2000) (No.99-7504)

Question Presented: whether in determining if a pending application for state postconviction or other collateral review was "properly filed" for purposes of AEDPA's pending-state- petition tolling provision, a court examines only whether such application was submitted according to the state's procedural requirements, or can the court consider whether the application was procedurally barred under state successive postconviction provisions.

Decided November 7, 2000
 

IMMIGRATION--INDEFINITE DETENTION OF ALIEN

Case: Ashcroft v. Ma and Zadvydas v. Davis
Lower Court Opinions: Ma v. Reno, 208 F.3d 815 (9th Cir.), cert. granted, 2000 WL 949125, 69 USLW 3086 (U.S. Oct. 10, 2000) and Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 2000 WL 38879 (U.S. Oct. 10, 2000)(consolidated for certiorari review).

Question Presented: Whether the Immigration and Naturalization Service may indefinitely detain an allegedly stateless alien following entry of orders of deportation.

Decided June 28, 2001
 

IMMIGRATION--RETROACTIVE APPLICATION OF DENIAL OF RELIEF FROM DEPORTATION

Case: INS v. St. Cyr, and Calcano-Martinez v. INS
Lower Court Opinions:  St. Cyr v. INS, 229 F.3d 406 (2d cir. 2000), cert. granted, 2001 WL  29104 (U.S. Jan 12, 2001) (No. 00-767); and Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000), cert. granted, 2001 WL 29105 (U.S. Jan. 12, 2001) (No. 00-1011).

Questions Presented:

(1)  Whether AEDPA and IIRIRA provisions, that preclude aliens who are removable because of  aggravated felony conviction from applying for discretionary relief from deportation, apply retroactively to alien who pled guilty to aggravated felony prior to statutes' enactment.

(2)  Whether, under IIRIRA's permanent rules, Article III courts are divested of their habeas jurisdiction to review statutory and constitutional challenges to final removal orders when no other avenue for judicial review is available.

Calcano Decided June 25, 2001, and St Cyr decided June 25, 2001
 

INTERSTATE AGREEMENT ON DETAINERS

Case:  Alabama v. Bozeman
Lower Court Opinion: Ex parte Bozeman, 2000 WL 429936 (Ala. 2000), cert. granted, 2000 WL 1511763 (U.S. Dec.11, 2000) (No. 00-492)

Question Presented:  whether a technical violation of the Interstate Agreement on Detainers Act (IAD), specifically, the transfer of federal custody to state custody for one day for purposes of arraignment and the transfer back to federal custody before the disposition of outstanding charges, requires dismissal of the pending charges, even when there is no harm to the prisoner either alleged or demonstrated.

Decided June 11, 2001
 

SEARCH AND SEIZURE--AUTOMOBILE SEARCH INCIDENT TO ARREST

Case: Florida v. Thomas
Lower Court Opinion: Thomas v. State, 761 So. 2d 1010 (Fla. 1999), cert. granted, 2001, WL12414 (U.S. Jan. 8, 2001) (No. 00-391)

Question Presented: Whether a search incident to arrest may be undertaken after a valid custodial arrest of a recent motor vehicle occupant, who exited the vehicle before he had any contact with police.

Certiorari Dismissed for Want of Jurisdiction June 4, 2001
 

SEARCH AND SEIZURE -- CHECKPOINT STOPS

Case: City of Indianapolis v. Edmond
Lower Court Opinion: Edmond v. Goldsmith, 183 F.3d 659 (7th. Cir. 1999), cert. granted, 2000 WL197385 (U.S. Feb. 22, 2000) (No.99-1030)

Question Presented: Whether checkpoints at which law enforcement officers briefly stop vehicular traffic, check motorists' licenses and vehicle registrations, look for signs of impairment, and walk a "narcotics detection" dog around the exterior of each stopped automobile are unlawful under the Fourth Amendment.

Decided November 28, 2000
 

SEARCH AND SEIZURE -- DEFENDANT'S RIGHT TO ENTER SEIZED RESIDENCE PENDING WARRANT

Case: Illinois v. McArthur
Lower Court Opinion: People v. McArthur, 713 N.E.2d 93 (Ill. App.1999), cert. granted, 2000 WL36245 (U.S. May 1, 2000) (No.99-1132)

Question Presented: Whether police made an unreasonable seizure under the Fourth Amendment when they refused to allow the defendant to enter his residence while they were awaiting a warrant to search his home.

Decided February 20, 2001
 

SEARCH AND SEIZURE -- DRUG TESTING

Case: Ferguson v. City of Charleston, S.C.
Lower Court Opinion: 186 F.3d 469 (4th. Cir. 1999), cert. granted, 2000 WL 220269 (U.S. Feb. 28, 2000) (No. 99-936).

Question Presented: Whether the "special needs" exception to the Fourth Amendment's warrant and probable cause requirements was properly applied to a discretionary drug testing program targeting hospital patients that was created and implemented with police and prosecutors primarily for law enforcement purposes.

Decided March 21, 2001
 
 

SEARCH AND SEIZURE -- THERMAL IMAGE SCANNING

Case: Kyllo V. United States
Lower Court Opinion: United States v. Kyllo, 190 F.3d 1041 (9th. Cir. 1999), cert. granted, 2000 WL 267066 (U.S. Sept. 26, 2000) (No. 99-8508).

Question Presented: Whether the warrantless use of a thermal imaging device to detect heat sources within a home constitutes an unreasonable search and seizure under the Fourth Amendment.

Decided June 11, 2001
 

SEIZURE--CUSTODIAL ARREST FOR FINE-ONLY TRAFFIC OFFENSE

Case: Atwater v. City of Lago Vista
Lower Court Opinion:  Atwater v. City of Lago Vista, 195 F.3d 242 (5th Cir. 1999) (en banc), cert. granted, 2000 WL 248718 (U.S. June 26, 2000) (No. 99-1408).

Question Presented:  Whether the Fourth Amendment limits the use of custodial arrests for fine-only traffic offenses.

Decided April 24, 2001
 

SENTENCING GUIDELINES--CAREER OFFENDER

Case: Buford v. United States
Lower Court Opinion:  United States v. Buford, 201 F.3d 937 (7th Cir. 2000), cert. granted, 2000 WL 462630 (U.S. Sept. 26, 2000) (No. 99-9073).

Question Presented:  Whether a de novo or a deferential standard of review should be used in determining whether a defendant's prior convictions are "related" for purposes of the Sentencing Guideline that provides that prior sentences imposed in related cases are to be treated as one sentence for purposes of the Guidelines' career offender provision.

Decided March 20, 2001
 

SIXTH AMENDMENT--ATTACHMENT OF RIGHT OF COUNSEL AS TO ADDITIONAL CRIMES

Case: Texas v. Cobb
Lower Court Opinion: Cobb v. State, No. 92,807, 2000 WL 275644 (Tex.Crim.App. March 15, 2000), cert. granted 2000 WL 521475 (U.S. June 26, 2000) (No. 99-1702)

Questions Presented:

(1)  Whether an accused may make an effective unilateral waiver of his constitutional right to counsel when his only previous "assertion" of that right consisted of accepting appointment of counsel following indictment on a different, but related, crime nearly a year and a half earlier.

(2)  Whether when an accused has been indicted for burglary, does his Sixth Amendment right to counsel attach to questioning about a factually related murder when the eventual capital murder conviction is not based on the previously charged burglary as a predicate felony.

Decided April 2, 2001
 

STATUTE--MAIL FRAUD "PROPERTY"

Case: Cleveland v. United States
Lower Court Opinion: United States v. Bankston, 182 F.3d 296 (5th Cir. 1999), cert. granted, 2000 WL 28669 (U.S. March 20, 2000) (No. 99-804).

Question Presented: Whether alleged false statements or omissions in applications for state licenses can be the basis for federal mail or wire fraud charges, on the theory that a license that has not yet been issued constitutes "property" of the states, of which the state is deprived when it issues the license.

Decided November 7, 2000

Lack of Lawyers Hinders Appeals in Capital Cases, by Crystal Nix Hines.  This article highlights the shortage of, and difficulty in finding attorneys for death row inmates.  It focuses on the reasons some private firms are unwilling to take on capital cases and the failure of many states to invest in post-conviction resources for inmate appeals.  In Alabama, 40 of the approximately 185 death row inmates have no lawyer, in Louisiana at lease 10 of the state's 52 death row inmates are without representation, and in California, at least 161 inmates have yet to be appointed an attorney.  (New York Times, 7/5/01) Read the article. 

Empathy for a Killer, op-ed by Bob Herbert.  The author compares American's attitudes toward Andrea Yates, the mother accused of drowning her five children last month, to their general attitudes towards typical capital defendants.  The article notes that Yates' case perhaps evokes empathy because she is a white, middle-class mother, as opposed to someone who would be easily demonized.  The article contrasts Yates to Mario Marquez, an Hispanic man with mental retardation who suffered severe abuse as a child and who was executed in Texas in 1995.  (New York Times, 7/5/01) Read the op--ed. 

Justice O'Connor on Executions, editorial.  The New York Times voiced support for Justice O'Connor's recent remarks questioning the fairness of the death penalty (see below).  The editorial notes O'Connor's historic position as a death penalty supporter and swing vote for the Court's conservative majority in death penalty cases.  The Times ultimately calls for abolition of the death penalty.  (New York Times, 7/5/01) Read the editorial. 

More Death Penalty Doubts, editorial.  USA Today comments on Justice O'Connor's recent statements about the death penalty and notes that the Justice is not alone in questioning the way this punishment is being applied. The editorial cites the many reform measures taking place around the nation, and calls for replacing the death penalty with a sentence of life without parole.  (USA Today, 7/5/01) Read the editorial. 

 NEW VOICES:  Former Alabama Judge Criticizes Politicization of Death Sentences 
     William Bowen Jr., the former presiding judge of the Alabama Court of Criminal Appeals, spoke out against the state's jury override provision which allows a judge to impose a death sentence even after the jury has recommended life in prison.  Bowen said most judges would prefer not to have this power because it increases political pressure on judges to impose the death penalty. In Alabama, nearly a quarter of the death row inmates were sentenced to death by an elected judge exercising the jury override power.  "Judicial politics has gotten so dirty in this state that your opponent in an election simply has to say that you're soft on crime because you haven't imposed the death penalty enough," said Bowen.  "People run for re-election on that basis, because the popular opinion in the state is, Let's hang 'em." (New York Times, 6/16/01)  See also, New Voices. 

 North Carolinians Strongly Favor Death Penalty Moratorium; Oppose Execution of Mentally Retarded 
     A recent poll of North Carolinians found that 70% of respondents support a moratorium on executions in the state.  The poll, released by the North Carolina Academy of Trial Lawyers, found that 65.4% prefer life without parole for persons with mental retardation - a measure recenlty passed by the state Senate and currently pending before the House.  The poll also found that 66.8% think innocent people have been sentenced to death or executed in North Carolina in the past 25 years.  (North Carolina Academy of Trial Lawyers, Press Release, 6/29/01)  Read NCATL's press release.  See also, public opinion. 

NEW VOICES: Conservative Ohio Republicans Speak Out Against Capital Punishment 
     In Ohio, conservative, faith-based Republicans have been speaking out against the state's use of capital punishment.  "The death penalty never solves anything," said Rep. Thomas Brinkman Jr. (R-Cincinnati), a Roman Catholic who opposes abortion and favors a concealed-carrying gun law.  Supporting both a study and a moratorium on executions, Brinkman said, "You should stand for your principles."    Also speaking out against the death penalty was Rep. Jim Trakas (R-Cleveland), the fifth ranking member of the House and chairman of the Cuyahoga County GOP and Rex Zent, a former warden at two state prisons.  "It's not about crime prevention or crime deterrence or saving money," said Zent.  By executing people, Zent said, "We're creating a lot of other residual victims."  (Columbus Dispatch,  6/19/01)   See also, New Voices. 

 NEW VOICES: Justice O'Connor Questions Death Penalty 
     In a speech on July 2, U.S. Supreme Court Justice Sandra Day O'Connor said there were "serious questions" about whether the death penalty is fairly administerd in the U.S.  Noting the number of death row inmates who have been exonerated in recent years, O' Connor stated, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed.''  She also addressed the need for quality representation in capital cases, stating that such representation has too often been inadequate. "Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used,'' she said.  In speaking to the Minnesota Women Lawyer's group, O'Connor also expressed her concern about the rising numbers of inmates on death row and of executions since her appointment to the Court.  Noting that Minnesota does not have the death penalty, O'Connor said, "You must breathe a big sigh of relief every day.''  (Associated Press, 7/2/01).  See also, New Voices. 

Missouri Bans Execution of Mentally Retarded 
  Missouri became the 16th state to ban the execution of inmates with mental retardation.  The Missouri bill, signed by Gov. Bob Holden on July 2, but not effective until August 28, is not retroactive to those currently on death row.  However, the governor indicated he would consider commuting the death sentences of those who meet the law's definition for retardation. (St. Louis Post-Dispatch, AP, 7/2/01). 
    In Connecticut, a new bill, not yet signed by the governor, will not only prohibit the execution of those with mental retardation, but will also provide for a study of the state's death penalty. The study will examine whether there are disparities in prosecutors' decisions to seek the death penalty based on a defendant's or victim's race or economic status.  If signed, Connecticut's law will be effective as of July 1, 2001.  (CT Public Act No, 01-151) 
 See also, Mental retardation and the death penalty. 

NEW VOICES:  Roger Chesley, an associate editor of The Virginian-Pilot and former death penalty supporter, recently expressed his changing views about the death penalty: 

    [S]lowly, grudgingly, I've come to believe that the death penalty should be ended in Virginia and across this country. I'm also well aware that the Roman Catholic Church, of which I'm a member, opposes the death penalty. That stance has had an effect on me. 
    Life in prison without parole is a reasonable -- though imperfect -- alternative. Our collective quest for vengeance might not be satisfied. But we as a society won't have to wonder whether we executed an innocent person. 
(The Virginian-Pilot, 6/30/01)  See also, New Voices 
 Oklahoma Governor Proposes "Moral Certainty" Standard for Death Penalty Cases 
     Gov. Frank Keating recently suggested that a "moral certainty" standard replace the "beyond a reasonable doubt" standard now needed for a capital conviction. "[I]f you intend to take another person's life ... the only way we who believe in it can ensure that it will survive is that no innocent person be mistakenly put to death," Keating said.   "And for us, to raise that bar and require that a capital crime, when you are taking a person's life, be a moral certainty standard, I think is not only appropriate, I think it is essential." Keating said he would seek to have the higher standard written into Oklahoma law.  (The Oklahoman, 6/23/01)  See also, proposed legislative changes. 

NEW RESOURCES:  Barry Scheck's Lecture Series, "Wrongful Convictions: Causes and Remedies." Produced in cooperation with the Innocence Network, this on-line CLE and resource program offers trial practice training by America's leading experts on topics such as DNA testing, mistaken eyewitness identification, and false confessions. The series features thirteen lectures documenting the myriad problems that have led to wrongful convictions of innocent people. The lectures were videotaped and are available in their entirety, supplemented with power point presentations and text.  Each program is available on-line, on CD-ROM or on DVD.  There is a cost to purchase the materials.  Visit the Trial Tactics Web site to preview this resource.  See also, Additional resources. 

 June 27th News: 

U.S. Senate Judiciary Committee Holds Hearings on Need for Competent Counsel 
Bipartisan Panel Calls for Death Penalty Reform 
The World Court Rules U.S. Violated Vienna Convention 

U.S. Senate Judiciary Committee Holds Hearings on Need for Competent Counsel 
     The U.S. Senate Judiciary Committee, led by Chairman Patrick Leahy (D-VT), held hearings on June 27, 2001 regarding the bipartisan Innocence Protection Act of 2001 (IPA).  The hearings, which focused primarily on the need for defendants to be represented by qualified and experienced counsel in capital cases, included testimony from Beth Wilkinson, a former lead  prosecutor in the Oklahoma City bombing case, and Michael Graham, a wrongly convicted man who spent 14 years on Louisiana's death row before being exonerated. "One of our nation's most fundamental rights is the right to counsel," said Senator Leahy.  "In the most serious cases, where we are considering the execution of a human being, the Innocence Protection Act will help ensure that defendants have a right not just to counsel, but to competent counsel." 
     Also testifying at the hearings in support of the IPA were Stephen Bright, director of the Southern Center for Human Rights; Texas state senator Rodney Ellis; IPA lead co-sponsors in the Senate, Gordon Smith  (R-OR) and Susan Collins (R-ME); and House lead co-sponsors William Delahunt  (D-MA) and Ray LaHood (R-IL).  Testifying in opposition to the proposed legislation were The Honorable William H. Pryor Jr., Attorney General, Montgomery, AL; Mr. Ronald Eisenberg, Deputy District Attorney, Philadelphia, PA; and Kenneth S. Br1ackett Deputy Solicitor, 16th Circuit, South Carolina.  (The Justice Project Press Release, 6/27/01)  Read the Justice Project's Press Release and the testimony from the hearings., or listen to NPR's Morning Edition's discussion of the hearings.  For more information on the Innocence Protection Act, see the Justice Project's section-by-section summary. 

 Bipartisan Panel Calls for Death Penalty Reform 
 The Constitution Project's Death Penalty Initiative, a bipartisan committee of death penalty supporters and opponents, released a report calling for reforms in the death penalty system.  The report, "Mandatory Justice: Eighteen Reforms to the Death Penalty," details specific recommendations that relate to various aspects of capital punishment.   The recommendations include the need for adequate compensation, standards and training for defense attorneys; a halt to executing juveniles and the mentally retarded; the elimination of a judge's ability to sentence a defendant to death after a jury recommendation of life imprisonment; and a requirement that prosecutors open their files to defense counsel in capital cases.  "Regardless of one's position on the death penalty, we all want to make sure the process is fair and that the right person is being punished," said committee member William Sessions, former federal judge and FBI director.  "These recommendations are essential to that goal."  Among those included on this blue ribbon committee are Beth Wilkinson, prosecutor in the Oklahoma City bombing trial; former Florida Supreme Court Chief Justice Gerald Kogan; and Charles Baird, a former judge on the Texas Court of Criminal Appeals. (The Constitution Project, Press Release, 6/27/01) Read the Constitution Project's Press Release and the full report 

 The World Court Rules U.S. Violated Vienna Convention 
     The International Court of Justice (ICJ) handed down a ruling in favor of Germany, which sued the United States in the World Court for violating international laws and treaties by executing two German foreign nationals, Walter and Karl LaGrand, in Arizona in 1999.  The Court, in a 14-1 decision, held that the U.S. breached its obligation under the Vienna Convention on Counsular Relations by denying the brothers the right to consular notification and by not informing German authorities of the brothers' arrests and convictions until 10 years after they occurred. The Court also held, for the first time in its history, that orders by the Court indicating provisional measures are legally binding,  and criticized Arizona prosecutors for ignoring an order by the ICJ to stay the execution of Karl LaGrand. 
     In the June 27 ruling, the Court noted that the U.S. has agreed to carry out programs to ensure future compliance with the Vienna Convention.  (Associated Press, 6/27/01 and ICJ Press Release, 6/27/01)  Read the ICJ's Press Release and the Court's decision.  See also, Foreign Nationals.

Use of Death Penalty Threatens U.S. Observer Status in Council of Europe 
     The parliamentary assembly of the Council of Europe, the continent's largest human rights organization, passed a resolution saying that the United States and Japan should have their observer status revoked unless they make "significant progress" toward abolishing the death penalty by 2003.  The U.S has enjoyed observer status in the Council since 1996.  Abolition of the death penalty has been a condition of membership since 1994.  The resolution was voted on by the Council's 43-nation assembly during the World Congress Against the Death Penalty, a three-day conference in Strasbourg, France (see below). The resolution also called for an immediate halt to all executions and better living conditions for death row inmates.  (Associated Press, 6/26/01)  See also, international death penalty. 

Upcoming Training

July 19 - 22, 2001
NAACP Legal Defense Fund Capital Punishment Seminar
Warrenton, Virginia
Contact:  Deb Fins:  212.965.2257 
Email:  straitfins@aol.com 
Attendance at this seminar is limited and is by invitation only. This seminar covers a wide spectrum of timely capital punishment topics for the experienced capital defense practitioner, investigator, and other members of the defense community.

August 9 - 12, 2001
National Federal Habeas Corpus Seminar
Nashville, Tennessee
Contact:  Hunter Labovitz:  800.788.9908
Email:  Hunter_Labovitz@ao.uscourts.gov
Nationally recognized habeas experts discuss legal developments since the implementation of the Antiterrorism and Effective Death Penalty Act of 1996, and how to handle a capital post-conviction proceeding. This program focuses on representation in a capital habeas case in toto, i.e. issue identification, investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. This seminar is designed for, and attendance is limited to, Federal Defenders, Criminal Justice Act panel attorneys, and state court practitioners who are currently appointed to or seeking appointment to, a capital habeas corpus proceeding.

CAPITAL DEFENSE WEEKLY SUBSCRIPTION INFORMATION:  To subscribe just drop an email to cdw@karlkeys.com & remember to put subscribe somewhere in the e-mail.

CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement. 

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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.

DISCLAIMER & CREDITS -- Anti-copyright 1997-2001. ISSN: 1523-6684. Karl R. Keys,, Esq, is an attorney duly admitted in the Commonwealth of Massachusetts and under the Court rules governing attorney conduct this weekly and related website may be construed as legal advertising.  Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational & information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.This letter and related website materials may be freely redistributed with attribution save for the copyrighted works of others. In short, reading this newsletter does not make me (or those I work with, for or for me)  your lawyer and you can use my stuff.  Submissions related to this letter may be reproduced without further notice.  Please note all rights to terminate a subscription are retained by the editorial staff. Although I am always glad to help where I can , I am in private practice and receive no financial remuneration for the this weekly, the related web site or the discussion list,  as such  requests for assistance can not always timely be answered as the bills still need to be paid.

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Volume IV, issue 24

Please note: due to the large number of requests for assistance, the office cannot respond to all requests.  Your letter alone will not constitute the establishment of an attorney-client relationship.   Similarly, due to  relocation any correspondence will be substantially delayed.