E-mail Address: capdefense@aol.com
Week of 03/30/1997
 

This issues coverage includes the two week period including all cases from  March 16, 1998 until March 28, 1998.  Of most significant importance last week was the plurality decision in Ohio Adult Parole Authority v. Woodard (addressing the issue of due process in capital clemency proceedings),  Missouri v. Chaney, (in which the Missouri Supreme Court addresses proportionality review), as well as Rodriguez v. Correctional Center (addressing Teague and successive petitions).   In the "Did you miss" review the "Right to counsel" is reviewed under the Vienna Convention.
 

Ohio Adult Parole Authority v. Woodard As is the case anytime the Supreme Court hands down a plurality opinion, its necessary to do a lot of math to figure out what the court actually holds.  The strict holding of  the court is that no right to self-incrimination exists in a clemency proceeding on these facts (9-0) or ever (8-1) (Justice Stevens dissenting).  The opinion of  Chief Justice Rehnquist (joined by three other justices - Scalia, Kennedy & Thomas) holds for the Court that no right to due process exists in clemency proceedings as they are a matter of grace, not part of the criminal adjudication of the merits.  Justice O'Connor writing for four justices  (Justices Souter, Ginsburg & Breyer concurring) would hold that due process is at issue in clemency procedures, but just not in this case, that "[a] prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect . . . clemency procedures. . . .. I do not, however, agree with  the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards.  . . . . Thus, although it is true that "pardon and commutation decisions have not traditionally been the business of courts,"[ ] and that the decision whether to grant clemency is entrusted to the Governor under Ohio law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process. "Justice Stevens would hold "Our cases also support the conclusion that if a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with  the Due Process Clause," and remand.  Where the Supreme Court opinion is a plurality, such as here, where five justices agree that is where the precedent lies, here Ohio Adult Parole Authority, "some minimal procedural safeguards apply to clemency proceedings "(Justices O'Connor - joined by Souter, Ginsburg & Breyer and Justice Stevens) but that these basic safeguards (all the Justices save Stevens) do not include those found in the Fifth Amendment's self incrimination clause.

Rodriguez v. Correctional Center First Circuit examines whether  Cage v. Louisiana falls within the ambit of the exceptions to the general limitations on successive petitions found in §2244.  The question before the court is whether under the retroactively applicable case law exception of §2244(B) is applicable in light of the Supreme Court's summary reversal and l and remand on a petition for certiorari petition concerning the Fourth Circuit's decision in Adams v. Aiken, 965 F.2d 1306 (4th Cir. 1992).  The  "Ninth Circuit, on similar facts, has held that Adams II is enough to support a prima facie case of Cage retroactivity. See Nevius v. Sumner, 105 F.3d 453, 462 (9th Cir. 1996)."  This issue would appear set up well and perhaps intentionally by Judge Selya to get certiorari.

Missouri v. Chaney Missouri Supreme Court resentence Chaney to life from death due to the weakness of the state's evidence against him.  As this type of reversal is unusual, a large quote is provided:

"This independent statutory review "is designed by the legislature as an additional safeguard against arbitrary and capricious
sentencing and to promote evenhanded, rational and consistent imposition of death sentences." . . . . . This aspect of proportionality review is  uncommon among states having statutes mandating proportionality review.  It is clear from this mandate that the legislature intended for this Court, when reviewing the imposition of the death penalty, to go beyond a mere inquiry into whether the evidence is sufficient to support a conviction. To perform this duty necessarily requires a comparison of the weight of the evidence in other cases in which the death penalty was given. In none of the cases cited above was the conviction based primarily on trace and pathological evidence of the type and quantity presented here. In this case there is no eyewitness, confession, admission, document, fingerprint or blood evidence directly pointing to the defendant. Neither is there evidence of defendant's involvement in any similar or related crimes from which one might infer is involvement here. While sufficient to allow a reasonable juror to find guilt beyond a reasonable doubt, the evidence here is not as strong as evidence in similar cases imposing the death penalty noted above. After comparing the evidence in this and similar death penalty cases, we conclude that this case falls within a narrow band where the evidence is sufficient to support a conviction, but not of the compelling nature usually found in cases where the sentence is death. In conducting proportionality review we must also consider "the defendant." Sec. 565.035.3(3). Evidence concerning his history of violent behavior and sexual abuse is of limited probative value, as the alleged acts were said to have all occurred ten to twenty-six years ago. Contrasted with that is evidence that Chaney had no prior criminal convictions and was a good husband, friend and step-father, and that he had a good reputation among those he worked for in his optical business. The combination of the strength of the evidence and the defendant's background makes this case unlike other cases involving similar crimes in which the death penalty was imposed. Thus, we conclude the sentence of death is disproportionate."   (Internal citations and footnotes removed).

Missouri v. Chaney Missouri Supreme Court resentence Chaney to life from death due to the weakness of the state's evidence against him.    (see above)

Eaton v. Angelone Fourth Circuit denies habeas relief in this capital case on the grounds that issues were improperly presented to the state courts and therefore defaulted, that the requirement of juries being instructed on ineligibility for parole is not retroactively applicable, and that Virginia's "future dangerous aggravator is permissible as it allows sufficient guidance.  

Florida has resumed its practice of executing its citizenry.  Several cases have arisen in the last week most notably
Jones v. Crosby and In re Jones. In Jones v. Crosby  the nagging question of the right to post-conviction counsel is addressed by the Court of Appeals,  but turned assigned on procedural grounds.  The second case is In re Jones , as the Eleventh Circuit denies leave to file a second habeas as newly discovered evidence does not meet the requirements of § 2244 on claims of factual innocence even though the court notes that there is substantial problems with the state's proof in this case, as well as that on claims that Florida's electric chair does not comport with the Eighth Amendment that such claims are not cognizable on a successive federal habeas petitions.   
   
 
Buchanan v. Gilmore Fourth Circuit vacates a stay of execution which had been entered on the ground that Virginia's governor had formerly prosecuted Buchanan when Gilmore was AG. Dismissed as the § 1983 "civil rights" challenge should have been raised as a § 2254 habeas petition.
 
 

Knowles v. Iowa, 97-7597.:MAY POLICE BE given blanket authority to search the cars of people stopped for routine traffic violations? The Iowa Supreme Court said yes.

Mosley v. U.S., 97-7213. MUST JURORS IN some bank robbery prosecutions be told to consider a lesser charge of bank larceny, a crime that does not include the use of force, violence or intimidation? The 3d U.S. Circuit Court of Appeals said such a jury instruction was not needed.

Flores v. Satz Eleventh Circuit in police misconduct case holds that failure to show violation of clearly established right means that protection offered by qualified immunity is not pierced.  

Watlin v. Fleming Fifth Circuit affirms dismissal of 28 U.S.C. § 2241 habeas petition challenging the Bureau of Prisons' application of 28 C.F.R. § 550.58 to him and thereby rendering him ineligible for early release following his successful completion of a drug- abuse treatment program while in custody.   

Bazrowx v. Scott District court's sua sponte dismissed a Texas prison inmates civil rights suit under 42 U.S.C. § 1983, as a matter of first impression such dismissals under § 1997e(c) should be reviewed de novo on appeal.    

Wildermuth v. Furlong Tenth circuit holds Parole Board did not violate petitioners constitutional rights by requiring that he complete a sex offender treatment program ("SToP") before becoming eligible for parole.    

Brown v. Toombs Sixth circuit holds that because plaintiff failed to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) of the PLRA, the district court must dismiss the action.  

Adams v. Inman Eighth circuit affirms oder denying prisoner leave to proceed in forma pauperis affirmed; discussion of Prison Litigation Reform Act.  

Deuser v. King Eighth Circuit holds park rangers decision to terminate an arrest and release plaintiff's decedent was protected by the discretionary function exception to the Federal Tort Claims Act and is not actionable.  

Arce v. Walker Second Circuit reverses prisoner rights suit that raised a myriad of issues, on the sole narrow ground that prisoner was denied access to the courts.

M.M. v Zavaras Tenth Circuit, sidestepping the substantive facts of whether a state must provide a pregnant incarcerated felon access to abortion, instead the panel denies the appeal on the ground that the plaintiff can not proceed anonymously and dismisses the appeal.

Baldwin v. Stadler Fifth Circuit holds that, in a very fact specific case, heavy use of mace & not permitting an inmate to wash it off did not violate Eighth Amendment despite trial court's finding that it did.
 

Highlighting what is a growing row in the international community, a potentially hot issue for litigation the Fourth Circuit examines two separate opinions the Vienna Convention, which gives foreign nationals the right to counsel, as well as consul from their nation. The Fourth Circuit instead of addressing the substantive merits avoids the question and instead addresses narrow procedural grounds. In Breard v Pruett the Fourth Circuit addresses claims under the Vienna Convention & holding them to be procedurally defaulted; concurrence examines the import of the Vienna Convention. Breard's government in Paraguay v. Allen is denied relief, not on the substantive merits, but on what has become a hot button issue in the federal judiciary, barring the claim by the Eleventh Amendment. These cases are a better than average bet for certiorari given the growing popularity of claims under the Vienna Convention, as well as the Supreme Court's growing fondness for finding state sovereignty prevents the litigation of the substantive merits of many claims.

-- Karl R. Keys, Esq.

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