In focus this week is possible bad news coming out of the Supreme Court in light of the certiorari grant in Ashmus v. Calderon . The court below in Ashmus (the much maligned & reversed Ninth Circuit) held that the opt-in provisions of 28 U.S.C. §§ 2261-68 were not applicable because California, represented here by Calderon, had not met the prerequisites set out in 28 U.S.C. § 2261 for the provision of counsel on the state level. The Ninth circuit also addressed two procedural issues and held that suit was properly brought as a class action under Fed.R.Civ.P. 23 and the Eleventh Amendment.

The question presented to the Court in Ashmus is a rather narrow one as far as the capital defense community is concerned, whether the Eleventh Amendment bars the suit against the state by the class. In light of recent Supreme Court decisions finding in favor of states rights under the related Tenth Amendment, as well as non-capital Eleventh Amendment and § 1983 cases, reversal seems probable (likely line-up being, of course, CJ Rehnquist, JJ. O'Connor, Scalia, Kennedy, & Thomas). Although the Court may not reach the substantive merits of the issue in anything but dicta, the five Justices involved are likely to suggest that the opt-in provisions are easily met.

The Ashmus cert grant has not been the only negative this news this week, however. The Fifth Circuit in Nobles v. Johnson, again reiterated that under the AEDPA the date to examine for retroactivity purposes is the date that the actual petition is filed and not when a request for a "McFarland" appointment of counsel motion is made. The Fifth Circuit's opinion when coupled with the Ninth Circuit's opinion earlier this year in Calderon v. United States District Court could well mean that to stop the clock from running in a federal habeas case a McFarland motion may not be enough, that an actual habeas petition may need to be filed. (Indeed, when Nobles, Calderon, and Ashmus are looked at in the most negative light they could well spell that from the denial of certiorari on direct appeal a capital sentenced prisoner has but six months to have his petition filed, excluding, naturally anytime exhausting state remedies).

Related Article:

Supreme Court Eyes Death Row Appeal Dispute (on Opt-In) Certiorari granted in Ashmus v. Calderon from the troubled Ninth Circuit

Prosecutorial Discetion

Johnson v. Pataki: New York Court of Appeals examines whether Gov. Pataki can remove prosecutors who refuse to seek the death penalty. The Court of Appeals refuses to address the ultimate underlying question, whether the death penalty is constitutional, but rather turns the questionon on a narrow procedural issue of state law.

Appropriateness of the Death Penalty

Pucchio v. FloridaThe trial court erred in imposing the death penalty on a defendant when other equally culpable co-perpetrators were sentenced to lesser punishments.

Tenn. v. BlandTennessee Supreme Court examines in a very length opinion what it looks at to determine whether death is an appropriate sentence. State Supreme Courts rarely let the world see what goes into the decision making process of what constitutes a sentence that is too severe for a given capital murder. Bland examines 17 different factors that are weighed and concludes that different sentences for the identical crimes are more than permissible under Tennessee law.

AEDPA interpretations

Nobles v. Johnson The Fifth Circuit in a revised opinion again holds that for pruposes of determining whether the AEDPA applies to given case that the formal filing date of the petition, and not the date of the McFarland motion, is outcome determinative.

Burris v. Parke Seventh Circuit examines when a petition to recall mandate should be treated as a successive petittion. Although the Seventh Cicruit went to lengths to distinguish the case from Thompson v. Calderon now pending before the High Court; that the Court did not grant a stay for Burris can not be good news for hopes on how it may decide Thompson.

Habeas -- Procedural Default

Skipper v. French Fourth Circuit examines the issue of what constitutes a procedural bar where the state supreme court denies relief to a mentally retarded capital defendant in a near summary order.

Prison Litigation Reform Act interpretations

Dougan v. Singletary In a suit revolving around Florida's death row, the 11th circuit finds the PLRA's provisions terminating certain consent decrees constitutional.

Ineffective Assistance of Counsel

Gloseclose v. Bell & Rickman v. Bell The Sixth Circuit grants habeas relief on ineffective assistance of counsel claims arising out of the court of the much demonized Judge Nixon of Tennessee. (For those not familiar with Judge Nixon of Tennesse, he has been one of the chief targets of those who would seek to impeach unpopular federal judges for his daring to find that Tennessee impermissibly sentences some of its sentences to death)

Brown v. Artuz Second Circuit examines right to testify and ineffective assistance of counsel

Jury instructions

McDowell v. Calderon Ninth Circuit in banc grants habeas on trial judge's "fatal constitutional error" when he failed to clear up jurors' confusion about how evidence might mitigate against the death penalty

Means of Execution

Williams v. Hopkins Eighth Circuit upholds in a lengthy opinion that electrocution is not violative of Eighth Amendment. Sadly electrocution is, by all accounts, among the most brutal way of executino used today. Nebraska is only one of six states that use electrocution as its chief methods of execution, and three of those six are likely to change means of execution in the upcoming year. Source materials are available by email for those interested in challenging electrocution as a method of execution.

Something for the bookshelf:

A Dean's Book on Bill of Rights Scores with Supremes, Scholar An interesting review of a new text on original intent and the Bill of Rights with ample citations to historical records, and more importantly where to find those records

I try to update the page three times a week, normally once on the weekends, Tuesdays and Thursday.

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