In other United States Supreme Court news, the Court has granted a stay on the issue of whether and how competency to be executed can be brought in a successive habeas in Colburn v. Cockrell.  The Court also directed additional briefing in Abdur Rahman v. Bell on an issue related to the confluence of successive habeas and traditional civil practice.
 
 

EXECUTION INFORMATION

The following executions have occured since th last edition:*

November:

13

William Putnam

Georga  -- Volunteer

 

6 7

James Colburn  George Sibley, Jr.

Texas  Alabama

SCOTUS Stay granted on competency to be executed grounds State stay granted on Ring/Apprendi grounds

November:

14 19 19 20 20 21

Mir Aimal Kas Graig Ogan James Brown William Chappell William R. Jones James Clark

Virginia---foreign national  Texas Georgia Texas  Missouri  Texas

December

4 6 10 10 11 12 17 17 19

Leonard Rojas Ernest Basden Jerry Lynn McCracken Desmond Carter  James Collier Anthony Keith Johnson Jay Neill Earnest Carter  John Duty

Texas  North Carolina Oklahoma North Carolina Texas Alabama Oklahoma Oklahoma Oklahoma---volunteer

SUPREME COURT
Colburn v. Cockrell, 537 US --- (11/6/2002) Stay granted and briefing ordered.  Question on which stay is believed to have been  granted:

Should this Court address the issue left expressly unresolved in Stewart v. Martinez-Villareal, 523 U.S. 637, 645 n.* (1998), by deciding whether 28 U.S.C. sec. 2244(b) bars the filing of a Ford claim presented for the first time in a petition filed after the federal courts have already rejected the initiative habeas petition?

On October 24, 2002, the Supreme Court ordered supplemental briefing on the following questions:

Did the Sixth Circuit have jurisdiction to review the district court's order, dated November 27, 2001, transferring Petitioner's Rule 60(b) Motion to the Sixth Circuit pursuant to 28 U.S.C. § 1631? Does this Court have jurisdiction to review the Sixth Circuit's order, dated February 11, 2002, denying leave to file a second habeas corpus petition?

CAPITAL CASES ( Favorable Disposition)
Pennsylvania  v. Overby, 2002 Pa. LEXIS 2215 (PA 10/24/2002) (dissent)  Admission of a redacted statement by co-defendant was erroneous and resulted in under Bruton.

Ohio v. Gross, 776 N.E.2d 1061;2002 Ohio LEXIS 2663 (Ohio 10/30/2002) Sentence vacated. "[R]eversible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to a defendant and either (1) the state has not shown the error to be harmless, or (2) the trial court has not cured the error. Here, we find specific evidence of active disruption of the deliberative process that poses a significant risk of affecting jury functions--a risk that carries presumptive prejudice that the state has failed to counter."

Louisiana v. Williams, 2002 La. LEXIS 3066 (11/1/2002) (dissent) Remand ordered for a  "post-Atkins hearing on the sole issue of whether the defendant is mentally retarded."

Louisiana v.  Dunn, 2002 La. LEXIS 3065 (11/1/2002) Remand ordered for a post-Atkins hearing on the issue of mental retardation.

Pennsylvania v. Ford,  2002 Pa. LEXIS 2224 (PA 10/25/2002) Direct appeal counsel, who was other than trial counsel, was per se ineffective under the Sixth Amendment because he allegedly failed to discover and pursue a non-record claim on that appeal which a majority of the Court, in hindsight, concludes would have had merit -- specifically, a claim that trial counsel ineffectively represented appellant at the penalty phase of his capital trial.

Seals v Louisiana, 2002 La. LEXIS 3056 (LA 10/24/2002) "[W]e conclude that under the facts of this case, the district court correctly found that it cannot be retrospectively determined whether the defendant possessed the mental capacity to stand trial."

Bell v. Florida, 2002 Fla. LEXIS 2381 (FL 11/7/2002) Death sentence reduced to a natural life sentence.

[W]e do not base our conclusion regarding proportionality solely on the disparate treatment of the codefendants. In evaluating the totality of circumstances we begin with the age mitigator. With regard to the age mitigator, as we have explained above, the trial court abused its discretion in affording Bell's age of seventeen only little weight. Without a finding of unusual maturity, this statutory mitigator should have been given great weight

[A]fter considering the merits of the case, the Commission concluded that the State has acted contrary to an international norm of jus cogens by sentencing Michael Domingues to the death penalty for a crime that he committed when he was 16 years of age. Consequently, should the State execute Mr. Domingues pursuant to this sentence, the Commission found that it will be responsible for a grave and irreparable violation of Mr. Domingues' right to life under Article 1 of the American Declaration.

Pennsylvania v. Haag,  2002 Pa. LEXIS 2218 (PA 10/24/2002) (disssents) Forcing a state post-conviction petitioner to proceed with his first petition when he is incompetent does not violate apetitioner's rights to effective assistance of post-conviction counsel and due process of law.

Pennsylvania v. Hutchinson, 2002 Pa. LEXIS 2219 (PA  10/24/2002)  No error on claims relating to statement made by the decedent that  the appellant struck her during an act of domestic violence and  that counsel failed to object to certain statements durng cross examination.

Pratt v. Armenakis, 2002 Ore. LEXIS 833 (ore 10/24/2002) Petitioner did not show that an expanded brief of 260 pages wasnecessary where the Court below permitted a 100 page expanded brief

The Globe Newspaper Company, et al v.  Virginia, 2002 Va. LEXIS 156 (VA 11/1/2002)  State need not turn over for testing refusing several newspapers for access to DNA evidence for the purpose of re-testing the evidence.

Utah v. Arguelles, 2002 Utah LEXIS 166 (Ut 10/25/2002)  No error  found in this appeal  where defendant  sought death and the only issues before the court are those mandated by state law statutory review.

Perry v. Maryland, 2002 Md. App. LEXIS 194 (11/7/2002)  Relief denied on claims  alleging:  (1) error from the trial court's giving a supplemental instruction to the jury on aiding and abetting in response to a jury request after earlier having ruled that the facts did not support such an instruction; (2) admission of a petitioner's refusal to sign a fingerprint card;(3) putative comments on petitioner's failure to testify;  and (4) failure to pemit allocution.

Ohio v.  Bey, 776 N.E.2d 480;2002 Ohio LEXIS 2579 (Ohio 10/23/2002) Bey held to have failed to raise "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal" as required by App.R. 26(B)(5).

Bell v. Texas, 2002 Tex. Crim. App. LEXIS 215 (Tx Crim App 11/6/2002) Claims "that DNA testing is warranted because it may show that another person was present at the crime scene, thus making the identity of the killer an issue as required by Chapter 64" denied.

Bell v. Cockrell, 2002 U.S. App. LEXIS 21687 (5th Cir 10/17/2002) Remand ordered to resolve Atkins claims.

United States v. Regan, 2002 U.S. Dist. LEXIS 21481  (EDVA 10/25/2002) Capital espionage proceeding omnibus motion to strike federal death penalty denied saved for striking of certain duplicative aggravating circumstances relating to the taking of classified information.

Hopper v. Cockrell, 2002 U.S. Dist. LEXIS 21025  (NDTX 10/31/2002)  Relief denied on claims, broadly, that: "(1) he was denied his constitutional right to counsel during a custodial interview, thereby rendering his subsequent statements inadmissible; (2) he was denied the effective assistance of counsel during his interrogation; and (3) his due process and confrontation clause rights were violated because the state failed to disclose that the lead investigator had entered into an agreement to assist in writing a book about the crime. Furthermore, petitioner seeks an evidentiary hearing on all of these claims."

United States v. Ortiz, et al, 2002 U.S. App. LEXIS 22994  (8th Cir  11/5/2002) In appeals from murder-for-hire and drug convictions, violation of Vienna Convention did not render defendants' statements inadmissible, and court did not err in finding no credible evidence that had defendants been advised of their rights under the Convention, they would not have made incriminating statements.

Smith v. Cockrell,  2002 U.S. App. LEXIS 22954 (5th Cir  11/4/2002) District court held to have erred in the grant of habeas relief to the petitioner on his claims that he received ineffective assistance of counsel during the sentencing phase and that he was entitled to a Penry mitigation instruction.

Doby v. Jefferson Circuit Court,2002 Ark. LEXIS 566(Ark  11/7/2002) Relief denied on:  (1) an alleged violation of his right to a speedy trial, as provided under Arkansas Rules of Criminal Procedure 28.1 through 28.3, and (2) an alleged violation of his right to counsel as guaranteed by the Sixth Amendment to the United States Constitution.

Ex parte Jeremy Shawn Bentley, 2002 Ala. Crim. App. LEXIS 233 (Ala Crim App 12/8/2002) Trial judge need not recuse himselfon the ground that the trial judge was prejudiced against him because of the threats contained in the letters.

Burdine v. Hoffman, 2002 U.S. Dist. LEXIS 20600 (SD TX 10/28/2002) Application of Younger abstention means Burdine is not permitted to have counsel of twenty years & one of the most respected members of the criminal defense bar represent him at his subesquent retrial.

Reed v. Cockrell, 2002 U.S. Dist. LEXIS 20083 (NDTX  10/21/2002) Relief denied on claims of: " (a) perjured testimony of William McLean, n2 (b) racially discriminatory use of peremptory challenges, n3 (c) the use of a general verdict form of jury instructions, n4 (d) the trial court's denial of a circumstantial evidence charge, n5 (e) the state appellate court's refusal to apply intervening state decision, n6 (f) an inordinate delay in the state appellate process, n7 and (g) the trial court's refusal to instruct on lesser included offense. n8 Petitioner also contends that he is entitled to discovery and an evidentiary hearing."

Moore v. King, 2002 Fla. LEXIS 2199 (FL 10/24/2002)  Ring v. Arizona held not applicable to Florida

Rivera v. Texas, 2002 Tex. Crim. App. LEXIS 217 (Tx Crim App 11/6/2002)  Court holds "Appellant has failed to show by a preponderance of the evidence a reasonable probability that exculpatory DNA tests would change the outcome of his trial, much less prove his innocence."

CAPITAL CASE RULE CHANGES
Amendment to the Florida Rules of Appellate Procedure (Rule 9.142), 2002 Fla. LEXIS 2271 (FL 10/31/2002) Technicial amendments to state postconviction rules.

[N]ew procedures provide that review proceedings under this subdivision are to be treated as original proceedings; require that the petition for review be filed with the clerk of the Supreme Court within thirty days of rendition of the nonfinal order to be reviewed; allow either party to the death penalty postconviction proceeding to seek review; set forth the required contents of the petition; provide that the court may issue an order to show cause "if the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal"; permit a response to the petition only when ordered by the court; provide that a stay of proceedings is not automatic and allow the lower tribunal to proceed with all matters, except the entry of a final order, unless a stay is granted by this Court; and make clear that seeking review under this subdivision will not extend the time limitations under Florida Rule of Criminal Procedure 3.851 or 3.852.

FOCUS

OTHER RESOURCES
The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

New York Times Condemns Capital Prosecution of Juvenile
    A recent New York Times editorial criticized the federal government's decision to designate Virginia as the first state to prosecute Washington, DC-area sniper suspect Lee Malvo. (See below) Juvenile defendants, including 17-year-old Malvo, are eligible to receive the death penalty in Virginia. The editorial, which chastised police for questioning Malvo outside the presence of his court-appointed guardian, sharply objected to the government's manipulation to ensure that Malvo would be tried in a jurisdiction that permits juvenile death sentences:

There are good reasons the law treats juveniles differently. Young people do not have the same judgment as adults, they are less able to rein in their impulses and they are more susceptible to outside influences.
. . .

Mr. Malvo's age, and the government's desire to prevent it from playing a role in his prosecution, also appears to have been a key factor in choosing Virginia as the first state to prosecute the case.

The biggest difference in the two states' treatment of juveniles concerns the death penalty. Maryland does not execute juveniles, while Virginia has executed three since 1976 -- the second-highest number of any state. It is Virginia that is out of touch: fewer than half the states now have the death penalty for juveniles, and only seven have executed one in the last 26 years. In choosing Virginia, the Justice Department appears, shamefully, to have forum-shopped for one of the country's few jurisdictions with a penchant for putting minors to death.

The Bush administration . . . seems to be saying that if a crime is sufficiently notorious, time-honored legal protections for juveniles should be abandoned. But this nation is strong enough to prosecute criminals, internal and external, without giving up its principles. (New York Times, November 12, 2002).

See, Juvenile Death Penalty.
 

NEW VOICES: Former Death Row Chaplain Decries Capital Punishment
Rev. Carroll Pickett, who served as chaplain on Texas' death row in Huntsville for 20 years, recently stated that the death penalty is akin to legalized murder. During a talk at Texas A&M University, Pickett said that capital punishment degrades society and caters to the lowest human impulse.  He also pointed out that the death penalty system lacks equity, noting that someone who is wealthy, has an education, and is the right race will not be put to death. (The Battalion of Texas A&M University, November 5, 2002). See also, New Voices.
 

Another Man Freed After DNA Testing
After spending 20 years in prison for rape, Bernard Webster of Baltimore County became the first inmate to be exonerated under Maryland's new DNA law. According to the Innocence Project at the Benjamin N. Cardozo School of Law in New York City, Webster, the 115th person nationwide to have his conviction overturned by DNA evidence. Noting that Webster's case had been prosecuted in the county with the most death penalty sentences in the state, Maryland public defender Cynthia Boersma said, "Baltimore County is responsible for Maryland's death row population. Here you have a case where things worked as they're intended to work, and they still got the wrong guy. There are implications as to whether we can trust the way the death penalty works." Webster had little training in prison and was never granted parole, in part, because he refused to admit his guilt. He may not be entitled to any compensation from the state. (Associated Press, November 7, 2002). Review Maryland's DNA legislation. See also, Innocence.

Virginia Court Refuses DNA Re-Testing
The Virginia Supreme Court has rejected the appeal of media outlets requesting new DNA tests on evidence from Roger Keith Coleman's trial. Coleman was executed in 1992 despite doubts about his guilt. The Boston Globe, Washington Post, Richmond Times-Dispatch, Virginian-Pilot, and Centurion Ministries - a charitable organization that investigates wrongful conviction claims - filed the claim asking that biological evidence in the case be analyzed with modern techniques. In its unanimous ruling, the court said, "Certainly, the right to test evidence in a criminal case has not been historically extended to the press and the general public." Virginia courts have never allowed DNA testing on evidence in a case where the convicted person has been executed. (Associated Press, October 31, 2002). See also, Innocence.

Virginia to Try Sniper Suspects First
Attorney General John Ashcroft has announced that Washington, DC-area sniper suspects John Allen Muhammad and John Lee Malvo (a juvenile) will be first tried in Virginia, where both could face the death penalty. Muhammad will stand trial in Prince William County, and Malvo will be tried in Fairfax County. (Associated Press, November 7, 2002). This decision uses federal authority to circumvent federal law, which forbids seeking the death penalty for juvenile offenders. In addition, almost every country in the world has ratified the international treaty banning the execution of juvenile offenders. For information about Virginia's death penalty law and system of representation, see the Virginia ACLU  death penalty report (download), and the amendment to Virginia's death penalty law that includes terrorist acts. See also, Juveniles.

Supreme Court Grants Stay to Mentally Ill Texas Man
More than two hours after the originally scheduled time for the November 6th execution of Texas death row inmate James Colburn, the United States Supreme Court issued a stay of execution to allow attorneys time to request a full hearing. Lawyers for Colburn assert that his severe mental illness rendered him incapable of comprehending the proceedings against him or the reasons for his execution. Some of Colburn's trial jurors, including the foreman, have filed affidavits supporting the defense's claim. (Washington Post, November 7, 2002). See, Supreme Court.

NEW VOICES: New Jersey Judge Says Death Penalty "Not Worth the Effort"
In a recent ruling denying death row inmate Ambrose Harris a new trial, New Jersey Superior Court Judge Bill Mathesius, a former chief prosecutor and county executive, stated that New Jersey's death penalty should be abandoned because of the cost of the legal process to taxpayers. "That process, and Ambrose Harris in particular, are simply not worth the effort," he said. New Jersey Assemblyman Reed Gusciora, who opposes capital punishment, later added, "It's cheaper to give someone life imprisonment without parole. We don't execute them anyway. I see no reason why we shouldn't abolish it." New Jersey has not carried out an execution since its death penalty was reinstated in 1982. (The Trentonian, November 1, 2002). See, New Voices.

Alabama Death Row Inmate Granted Stay of Execution
George Sibley, Jr., an Alabama death row inmate who was scheduled to be executed on November 7, has received a stay of execution. Sibley had previously dropped his appeals, but has requested representation by Bryan Stevenson, a nationally renowned capital defense lawyer who heads the Equal Justice Initiative in Montgomery. The federal court noted that Stevenson's appeal on behalf of Sibley raised complex issues about Alabama's death penalty law and that there was inadequate time to consider these issues without putting the execution on hold.  (Dothan Eagle, November 6, 2002). Alabama is one of several states to have the constitutionality of its death penalty called into question by the U.S. Supreme Court's ruling in Ring v. Arizona. See, U.S. Supreme Court: Ring v. Arizona.

Inter-American Commission Concludes Nevada Juvenile Death Sentence a Violation of Human Rights
The Inter-American Commission on Human Rights recently issued a ruling in a case filed on behalf of Nevada death row inmate and juvenile offender Michael Domingues. The Commission, which is an arm of the Organization of American States, ruled that the execution of Domingues would be a violation of the American Declaration of the Rights and Duties of Man. The ruling stated:

[A]fter considering the merits of the case, the Commission concluded that the State has acted contrary to an international norm of jus cogens by sentencing Michael Domingues to the death penalty for a crime that he committed when he was 16 years of age. Consequently, should the State execute Mr. Domingues pursuant to this sentence, the Commission found that it will be responsible for a grave and irreparable violation of Mr. Domingues' right to life under Article 1 of the American Declaration.

Michael Domingues v. United States, Case 12.285, at par. 5, Report No. 62/02, Inter-Am. C.H.R. (Oct. 22, 2002). See also, Juvenile Death Penalty.

Latest Gallup Poll Shows High Profile Crimes Have Not Raised Death Penalty Support
Despite the recent sniper shootings in the Washington, DC area, public support for the death penalty actually dropped compared to a May 2002 poll. In a Gallup Poll released on October 29, 2002, 70% supported the death penalty compared with 72% in May, and down considerably from the 80% support registered in 1994. According to George Gallup, Jr., the terror attacks of September 11 also have had little impact on public opinion about the death penalty. Support was at 67% in May, 2001.  Gallup's poll on capital punishment also found that American teenagers are 2-to-1 in favor of life imprisonment with no parole over the death penalty. (Gallup International, Government & Public Affairs, October 29, 2002) See also, Public Opinion.

NEW RESOURCES: Model Legislation on Mental Retardation
Professor James Ellis has created model legislation with explanations for states that must amend their laws to comply with the U.S. Supreme Court's ruling in Atkins v. Virginia, a recent decision that banned the practice of executing those with mental retardation.  Professor Ellis's "Mental Retardation and the Death Penalty: A Guide to State Legislative Issues" provides legislators and advocates with guidance for implementing the Atkins decision so that each state's death penalty laws are in compliance with constitutional requirements.  Prior to Atkins, eighteen states plus the federal government prohibited the execution of those with mental retardation.  See also, Mental Retardation and the Death Penalty.

NEW RESOURCES:  "Beyond Repair?: America's Death Penalty"
The soon to be released book edited by Stephen P. Garvey, "Beyond Repair?: America's Death Penalty," is a collection of essays focusing on trends in the modern death penalty era.  It includes findings of the Capital Jury Project, a nationwide research project that has interviewed over one thousand former jurors in death penalty cases.  Contributors to the book include highly regarded capital punishment experts and investigative reporters Ken Armstrong, John H. Blume, Theodore Eisenberg, Phoebe C. Ellsworth, Stephen P. Garvey, Samuel R. Gross, Sheri Lynn Johnson, Steve Mills, William A. Schabas, Larry W. Yackle, and Franklin E. Zimring. (Duke University Press, 2002).   See also, Books on the Death Penalty.

New York Times Editorial on Sniper Case
A recent New York Times editorial noted that competing interests to try Washington, D.C.- area sniper suspects John Muhammad and Lee Malvo based on the odds of securing a potential death penalty "demeans the justice system" and "smacks of Alice in Wonderland justice." The paper noted:

The Justice Department and prosecutors from Virginia and Maryland are engaged in unseemly jockeying over who will be first to try the accused Beltway snipers, John Muhammad and Lee Malvo. It demeans the justice system for the decision to turn on politics, prosecutorial ego or, worst of all, a capital-punishment bidding war, in which the case goes to the jurisdiction deemed most likely to execute the defendants.
. . .
It is troubling that a key consideration appears to be which jurisdiction seems most likely to impose the death penalty. (The federal government has executed two people since 1976, Maryland three, but Virginia far outstrips both, with 86 executions.) There is also wrangling over how likely it is that Mr. Malvo, age 17, will be eligible for execution. Focusing on any penalty at this point smacks of Alice in Wonderland justice. "Sentence first," the Queen declared, "verdict afterwards." It is also the wrong way to decide. In our federal system, the states are free to make their own choices about sentencing. Maryland should not be discriminated against simply because it takes a more restrained approach toward capital punishment. (New York Times, October 30, 2002)

 See also, State by State Death Penalty Information and Federal Death Penalty.

South Has Highest Murder Rate in 2001
According to data released on October 28 as part of the FBI's Uniform Crime Report for 2001, the South again has the highest murder rate of the four regions in the United States. The South was also the only region above the national average. In 2001, almost 80% of executions in the country occurred in the South. The report noted that the Texas crime rate rose 4% in 2001, nearly five times the national average, and the state posted a 7.6% increase in homicides. At the same time, the total number of executions in Texas is more than three times that of any other state in the nation. The Northeast, the region with the lowest murder rate, had no executions in 2001. (See DPIC's Execution Statistics, Crime in the United States, 2001, New York Times and Houston Chronicle, October 29, 2002) See also, Deterrence.

REGION            MURDER RATE/100,000
Northeast             4.2
Midwest               5.3
West                    5.5
South                   6.7
National               5.6

        - Crime in the United States, 2001
 

Supreme Court to Hear Arguments in Abdur'Rahman v. Bell
On November 6, the U.S. Supreme Court will hear the case of Tennessee death row inmate Abu-Ali Abdur'Rahman (Abdur'Rahman v. Bell, No. 01-9094).  Abdur'Rahman claims that prosecutors did not turn over exculpatory evidence and misled jurors during his trial. He also asserts that his own trial attorney did not present mitigating evidence that jurors now say would have kept them from sentencing Abdur'Rahman to death.  A lower court ruled that it was too late for Abdur'Rahman to present this new evidence in federal court.  In Abdur'Rahman v. Bell, the Supreme Court will decide when new developments in a criminal case can be brought in federal court. For more information, please visit the Death Penalty Information Center's resource page about this case. The page includes a video presentation, legal documents, and press materials. See also, Supreme Court.

Germany Urges U.S. to Drop Death Penalty Prosecution
Germany's interior minister, Otto Schily, urged the U.S. to drop its plans to seek the death penalty against Zacarias Moussaoui, who has been charged with involvement in the September 11 terror attacks.  Germany has refused to turn over its intellingence files on Moussaoui, a French citizen, as long as the U.S. insists on pursuing the death penalty in the case. (N.Y. Times, Oct. 26, 2002).  See also international developments.

New York Times, Washington Post Urge Court to Revisit Juvenile Death Penalty
The New York Times and the Washington Post recently editorialized that the Supreme Court should revisit and ultimately put an end to the execution of juvenile offenders. (see below) The Washington Post observed that, "The juvenile death penalty...is one of the least defensible aspects of American capital punishment." The paper noted that when deciding where to draw the line between those who will and will not receive the death penalty, "Distinguishing between legal childhood and adulthood seems a far more rational place to put it than between the sophomore and junior years of high school." (Washington Post, October 23, 2002)

The New York Times noted:

 As the dissenters correctly observed, the rationale that led the court to declare the execution of retarded people to be unconstitutional argues for revisiting the juvenile death penalty. In both instances there are profound questions of the defendants' capacity to fully understand the consequences of their actions, and thus their level of culpability. (New York Times, October 24, 2002)

See also, Juvenile Death Penalty, and Supreme Court.

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CITATION
This edition may be cited as:
Capital Defense Weekly, Volume V, Issue  35, http://capitaldefenseweekly.com/archives/021014.htm

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CONTACT INFORMATION
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cdw@capitaldefenseweekly.com

Mateo v. United States (11/07/02 - No. 02-1645 ) 28 U.S.C. section 2253 will not bar the issuing of a certificate of appealability where a supposed antecedent procedural bar prevented the district court from reaching petitioner's asserted constitutional claim.
 
 
 

ESPARZA v. MITCHELL (11/05/02 - No. 00-4615, 01-3025) A habeas writ was correctly issued where the state violated the Eighth Amendment and Ohio law in failing to either charge defendant in the indictment with the aggravated circumstance for which the death penalty was imposed, or instruct the jury on the aggravating circumstance and have the jury reach a verdict on the existence of that circumstance. To read the full text of this opinion, go to: http://laws.lp.findlaw.com/6th/02a0385p.html U
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