In Murray v. Giarratano, 492 U.S. 1 (1989), Chief Justice Rehnquist,joined by three other justices, found that there was no constitutional right to counsel, provided by the state, in post-conviction proceedings. Justice Kennedy concurred in the judgment, saying that "no prisoner on death row in Virginia has been unable to obtain counsel to represent him in post-conviction proceedings, and Virginia's prison system is staffed with institutional lawyers to assist in preparing petitions for post-conviction relief. I am not prepared to say that this scheme violates the Constitution." Murray, 492 U.S. at 14-15. In Mississippi, repeatedly, since 1995, death row inmates have been unable to obtain counsel or requisite help from institutional lawyers. The Legislature has been aware of this acute problem. In the 1998 session, it took the first step toward the institution of a statewide public defender system. It is strongly urged that the Legislature proceed toward a solution to this serious problem by enacting the program utilized in Virginia or some other system. We can no longer sit idly by. We therefore grant the motion.

. In summary, we find that Henry Curtis Jackson, Jr., as an indigent, is deprived of assistance of counsel and access to the court system in his attempt to obtain state post-conviction relief from his conviction and sentence. We further find that in capital cases, state post-conviction efforts, though collateral, have become part of the death penalty appeal process at the state level. We therefore find that Jackson, as a death row inmate, is entitled to appointed and compensated counsel to represent him in his state post-conviction efforts. This matter is remanded to the Leflore County Circuit Court for appointment of counsel for Jackson and consideration of reasonable litigation expenses. Whether appointed counsel may receive litigation expenses in part to hire a forensic psychiatrist or psychologist depends on the nature of the request, and rests in the discretion of the circuit court.

Cardwell v. Greene Fourth Circuit in this capital case examines, then denies relief on "three questions. First, we are called upon to determine whether the district court erred in denying Cardwell an evidentiary hearing on his claim of ineffective assistance of counsel. Because we find that Cardwell has failed to demonstrate entitlement to an evidentiary hearing, we consider whether his death sentence was rendered constitutionally infirm by trial counsel's failure to develop and present expert testimony regarding Cardwell's mental health. In assessing the merits of Cardwell's claim, we must also decide whether the Virginia Supreme Court's summary disposition of Cardwell's ineffective assistance claim constitutes an "adjudicat[ion] on the merits" within the meaning of 28 U.S.C. § 2254(d)(1), and, if so, how the absence of a statement of reasons affects our review of the state court decision."

The court first reviews the AEDPA evidentiary hearing requirements

 We join four of our sister circuits in holding that where an applicant has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court, § 2254(e)(2) will not preclude an evidentiary hearing in federal court. See McDonald, 139 F.3d at 1059 (holding that "a petitioner cannot be said to have `failed to develop' a factual basis for his claim unless the undeveloped record is a result of his own decision or omission"); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.) ("To be attributable to a `failure' under federal law the deficiency in the record must reflect something the petitioner did or omittfederalcert. denied, 118 S. Ct. 462 (1997); Jones v. Wood , 114 F.3d 1002, 1013 (9th Cir. 1997) ("Where, as here, the state courts simply fail to conduct an evidentiary hearing, the AEDPA does not preclude a federal evidentiary hearing on otherwise exhausted habeas claims."); Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997) (finding § 2254(e)(2) inapplicable where "factors other than the defendant's action prevented a factual record from being developed"). Because the term "`[f]ailure' implies omission--a decision not to introduce evidence when there was an opportunity, or a decision not to seek an opportunity," Burris, 116 F.3d at 258, an applicant "fail[s]" to develop the evidence supporting a claim only if he or she relinquishes an opportunity to introduce evidence or neglects to seek such an opportunity.

The interpretation of § 2254(e)(2) that we adopt today is consistent with both the language of the statute and the focus on state courts as the principal forum for the resolution of federal claims raised by state prisoners. If deficiencies in the record reflect an omission by the petitioner, the state courts have not been afforded"a full and fair opportunity to address and resolve the claim on the merits," Keeney, 504 U.S. at 10. In the interest of comity, § 2254(e)(2) forbids the federal courts to grant an evidentiary hearing to a petitioner who has deprived the state courts of a meaningful opportunity to rule on a federal claim.

Different concerns are implicated, however, where the lack of factual development is caused by the state's decision to deny an applicant the opportunity to develop the factual basis of a federal habeas claim. Section 2254(e)(2) should not be interpreted to allow a state court to deny a petitioner meaningful review of a federal claim by refusing to permit development of the factual record at the state level. See Burris, 116 F.3d at 259 (refusing to read § 2254(e)(2) to allow a state "to insulate its decisions from collateral attack in federal court by refusing to grant evidentiary hearings in its own courts"). . . . We conclude that there is a material distinction, however, between a petitioner's failure to seek or to seize an opportunity to present ev dence, and an inability to persuade a state court that an evidentiary hearing is required. The lack of factual development in the second instance results not from an omission by the petitioner, but from the state court's determination that an evidentiary hearing is unnecessary. . . .We do not believe that the prohibition of § 2254(e)(2) is implicated in these circumstances. Although we do not condone Cardwell's decision to exclude the report from his state habeas petition--a report on which Cardwell has relied to support his request for an evidentiary hearing in federal court--neither can we condemn it. Cardwell rea- sonably may have interpreted the state court's refusal to appoint experts as a rejection of expert evidence, or as an indication that the state court would be unmoved by such evidence in ruling on Card- well's request for an evidentiary hearing and deciding his claim.

Therefore, we hold that § 2254(e)(2) does not prohibit a federal evidentiary hearing on Cardwell's claim of ineffective assistance. Nevertheless, we conclude that the district court properly declined to conduct an evidentiary hearing on Cardwell's claim. See McDonald, 139 F.3d at 1059-60 (holding that "even if [the petitioner's] claim is not precluded by § 2254(e)(2), that does not mean he is entitled to an evidentiary hearing--only that he may be.").

* * * *

It is not apparent to us that counsel's performance was objectively unreasonable. Although the district court condemned counsel's efforts to secure expert assistance and a continuance as"tardy," we are hard pressed to conclude that counsel was dilatory when less than four months elapsed between Cardwell's indictment in May 1993 and his trial in September 1993, particularly in light of counsel's apparently diligent efforts to obtain the assistance of a mental health expert. McGarvey stated that he had first contacted Dr. Dewey Cornell in June. Dr. Cornell indicated that he needed some time to consider McGarvey's request. After approximately two weeks, Dr. Cornell refused to perform the evaluation. McGarvey then attempted to contact Dr. Richard Elliott. Although McGarvey left several messages for Dr. Elliott, there was no response. Finally, McGarvey stated that Dr. Thomas failed to disclose his vacation plans when he agreed to per- form the evaluation; it was only after the appointment was approved by the court on August 3 that McGarvey was advised by Dr. Thomas' office that he would be away for several weeks, and still later when Dr. Thomas informed McGarvey that a month and a half would be required to conduct the analysis.
 

The prosecution's comment that "there is no guarantee . . . because of what the law may say," is subject to a number of differing interpretations. Both the Illinois Supreme Court and the district court below construed the prosecution's comment to refer to Mahaffey's previous escape from jail and his response that he did not know whether he would attempt to escape again. See 978 F. Supp. at 778; 539 N.E.2d at 1192. Further, the district court stated that the "argument that anything less than the death penalty will be a letting go of defendant was nothing more or less than a comment that the death penalty was the only just and legally correct sentence." 978 F. Supp. at 778. This is a reasonable interpretation of this disputed comment. Even if we were to disregard these reasonable interpretations of the prosecution's comments and accept those asserted by Mahaffey, as in Del Vecchio, "this would not be enough to overturn the death sentence." 31 F.3d at 1385. The prosecution's contested statements were not "extensively and materially false," as the prosecution never explicitly stated that Mahaffey could be eligible under Illinois law for parole or release. See id. (quoting Townsend, 334 U.S. at 741). . . .

Mahaffey's second related argument incorporates into the above analysis the fact that the trial court refused to allow him--either through argument or an instruction--to explain to the jury that the only alternative to a death sentence was a sentence of natural life. Mahaffey argues that the prosecution's implication that Mahaffey could ultimately be released from prison and pose a threat to society, combined with Mahaffey's inability to inform the jury of the only statutory alternative, served to deprive him of due process. This argument evokes the rule of Simmons v. South Carolina, 512 U.S. 154 (1994). Simmons held that when the prosecution argues to a capital defendant's sentencing jury that the defendant represents a future danger, the defendant must be permitted to inform the jury that he would not be eligible for parole, so long as the only statutory alternative to a death sentence is imprisonment without possibility of parole. See id. at 169; id. at 177 (O'Connor, J., concurring in the judgment). Wisely, Mahaffey does not explicitly rely on Simmons in his briefs to this Court. . . .. The fact that Mahaffey does not explicitly rely on Simmons, however, does nothing to alter Teague's principle of the non- retroactivity of new rules. Mahaffey's conviction became final in 1990, when the Supreme Court denied certiorari on direct review. He therefore cannot benefit from the rule of Simmons, which the Court announced in 1994. Thus, we reject this variant of his due process claim as well.

 Today's majority is understandably uncomfortable with that conclusion, however, for it essentially means that an inference of discrimination, and therefore a prima facie case under Batson, does not arise even where the State has exercised peremptory challenges against all seven African-American venire persons in a racially-sensitive double murder trial involving an African-American defendant and white victims. Acknowledging that Mahaffey has presented a "strong argument" on the prima facie case (ante at 12), the majority opts to bypass that aspect of the Batson inquiry and to proceed directly to the ultimate issue of discrimination. Such a course is appropriate, my colleagues believe, because at the Batson hearing ordered by the Illinois Supreme Court, the State came forward with its reasons for striking the seven African-American jurors, and the trial judge explicitly found those reasons valid and non- pretextual. Id. at 14. In my view, that conclusion simply is not supported by the record of the Batson hearing. It also is inconsistent with the decisions issued in this case by the Illinois Supreme Court, the federal district court, and the state trial judge who presided at the Batson hearing. The majority reaches such a conclusion, moreover, in the face of the State's own insistence that it has never articulated its reasons for striking the seven African-American jurors. *****

And lest we forget, the crimes at issue in this case were obviously racially-sensitive--Mahaffey, a young African-American male from Chicago's South side, was charged with murdering a white couple on the North side, and with attempting to murder their young son. This is therefore a case in which the racial composition of the jury could potentially be a factor in how the jury might respond to Mahaffey's defense at trial, as well as to his arguments in mitigation at the capital sentencing phase. See Williams v. Chrans, 945 F.2d 926, 943-45 (7th Cir. 1991), cert. denied, 505 U.S. 1208 (1992). Before the judgment of the essentially all- white jury in this case is executed, I believe that the State at least should be required to explain why it excused each venire person of Mahaffey's own race.

 I am sensitive to the fact that Judge Hett was present during the jury voir dire and that, in his view, all of the relevant facts and circumstances did not produce an inference of discrimination. Yet Judge Hett came to that conclusion only after comparing the seven African-Americans whom the State excused from the jury with the six whites who were similarly excused. The state trial judge essentially found that because the excused African- Americans and the excused whites had similar characteristics, an inference of discrimination should not be drawn from the decision to strike the African-Americans. Batson Hearing Tr. at 54. But rather than comparing the excused African-Americans to the excused whites, I think the trial judge should have been comparing the excused African- Americans to the whites who remained, for only through such a comparison could the judge assess whether race played any role in the State's challenges. If an excused African-American juror had characteristics and opinions that were similar to those of a white juror who sat, for example, then the obvious inference, at least prior to the articulation of a race-neutral explanation for the strike, would be that the strike was racially- motivated. As far as the voir dire record would reveal, the stricken juror's race would be the only characteristic distinguishing the African-American from the white who was retained. I find it significant in that regard that Judge Hett found at the Batson hearing that the whites who sat on Mahaffey's jury were similar to the African- Americans the State had excused. Id. at 51. That finding indicates to me that the African-Americans on the jury venire may have been singled out, as they may have been treated differently than whites with the same or similar characteristics. And the inference of discrimination that would arise in that circumstance is unaffected by the fact that some whites with the same characteristics also may have been excused--the State still struck all the African-Americans while retaining some of the whites, and despite having strikes available that went unused.
 

The state's position is supported by the state habeas court's findings of fact that Robison's counsel showed the report to Price to ensure that Price had "all available information" and to aid in "deflecting criticism from the state on cross-examination." We recognize that Buckholtz's report contained certain damaging passages and an opinion contrary to defense's position. However, given the state habeas court's factual findings, we conclude that Robison has failed to overcome the strong presumption that his counsel's decision to provide Buckholtz's report to Price constituted sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We therefore hold that Robison has not made a substantial showing of the denial of a constitutional right with regard to this issue

Robison contends that the reasoning of Penry applies equally to him. He argues that the first special issue did not allow the jury to give mitigating effect to his mental illness. Specifically, he claims that not knowing one's conduct is wrong and not being able to conform one's conduct to the requirements of the law do not disable one from acting deliberately. Thus, he continues, the jury could have concluded that he acted deliberately but at the same time concluded that he could not conform his conduct to the law. With respect to the second issue, he contends that despite the treatable nature of schizophrenia, the jury could have nonetheless found him to be more dangerous, not less so because treatability does not give assurance of a lasting cure.

Given the similarities between Robison's evidence of mental illness and the evidence discussed in Penry, we find that Robison has made a "substantial showing of the denial of a constitutional right" on this issue, and we accordingly grant COA on it. 28 U.S.C. § 2253(c)(2). We therefore review this claim under the standard set forth in 28 U.S.C. § 2254(d): we will grant Robison's petition for writ of habeas corpus only if the state court adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." An application of federal law is "unreasonable" only if it is "so clearly incorrect that it would not be debatable among reasonable jurists." Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir. 1997), cert. denied, 118 S. Ct. 1845, 140 L.Ed.2d 1094 (1998) (internal quotations and citation omitted). In other words, "an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect." Id. at 416 (internal quotations and citation omitted).

Although we question whether Robison could show that his mitigating evidence was beyond the effective reach of the jury with respect to the first special issue, see Lucas, 132 F.3d at 1082 (holding that the sentencer could effectively consider the mitigating aspects of Lucas's evidence of mental illnessincluding expert testimony that Lucas was psychotic and suffered from schizophreniaunder the first special issue), we need not decide that issue here because we can affirm the district court's decision with respect to the second special issue. See Davis v. Scott, 51 F.3d 457, 464 (5th Cir. 1995) (concluding that it "need not consider whether the second special issue provided another, separate, adequate means" for the jury to consider Davis's mitigating evidence because it had already determined that the jury had an adequate means through the first special issue). In relation to the second issue, the state distinguishes Penry's mental retardation from Robison's mental illness, arguing that the former is constant while schizophrenia is treatable and capable of going into remission. Furthermore, the state points out that defense counsel itself argued during the punishment phase that for precisely those reasons, the jury should answer "no" to the second question: there was no probability of future dangerousness because Robison had improved, wasaccording to his own expertin remission, would be in a controlled environment for life, and therefore could continue to be in remission. Robison responds by arguing that the treatable nature of his mental illness does not assure a long-lasting cure and, therefore, the jury could nonetheless have found Robison to be more dangerous, not less.

Based on the evidence Robison presented at trial, we conclude that the jury could give mitigating effect to Robison's evidence of mental illness in answering the second special issue, which concerned Robison's future dangerousness. See Davis, 51 F.3d at 464 (explaining that "a Penry claim does not arise when constitutionally relevant evidence 'can be given mitigating effect in some way under the Texas special issues'") (quoting Motley v. Collins, 18 F.3d 1223, 1234 (5th Cir. 1994)) (emphasis in original). In Lucas, experts testified that Lucas was "psychotic and suffered from schizophrenia." Lucas, 132 F.3d at 1082. The trial testimony also indicated that Lucas "responded well to antipsychotic drugs like Thorazine and that his particular illness could be treated in a controlled environment." Id. Distinguishing Penry, we held that "[t]his prospect of medical treatment placed the evidence of his mental illness and abusive childhood within 'the effective reach of the sentencer' as a potential mitigating factor with respect to the second issue" because "the jury could have considered whether, in an institutional setting, the probability that Lucas posed as a future danger to society was not so great as to merit imposition of the death sentence." Id.; see also Davis, 51 F.3d at 464 (concluding that jury could give mitigating effect to Davis's evidence under the second special issue because the evidence did not demonstrate "that he was unable to learn from his mistakes" but did demonstrate that "he responded positively to a structured environment"). That distinction applies with equal weight to Robison's case: both Robison's expert and the state's expert testified that schizophrenia is treatable, and Robison's expert testified that he was currently in a state of remission, which he attributed to being a result of the structure of prison life. See Graham, 506 U.S. at 475, 113 S. Ct. at 902 (holding that "Graham's evidenceunlike Penry'shad mitigating relevance to the second special issue concerning his likely future dangerousness" because his evidence "quite readily could have supported a negative answer") (emphasis in original). We thus hold that the conclusion of the Texas Court of Criminal Appeals that Robison's evidence did not raise a Penry  issue was not a "decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d). We accordingly affirm the district court's dismissal of this claim.

Although Ake refers to an "appropriate" evaluation, we doubt that the Due Process Clause prescribes a malpractice standard for a court- appointed psychiatrist's performance. Rather, the decision in Ake reflects primarily a concern with ensuring a defendant access to a psychiatrist or psychologist, not with guaranteeing a particular sub- stantive result. See Parker v. Norris, 64 F.3d 1178, 1185 (8th Cir. 1995); Harris, 949 F.2d at 1516-17; Henderson v. Dugger, 925 F.2d 1309, 1316 & n.23 (11th Cir. 1991); Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir. 1989). The defendant in Ake , unlike Wilson, did not receive any evaluation of his sanity at the time of the offense. 470 U.S. at 72. The Court distinguished Ake's situation from two earlier decisions where the defendants, like Wilson, had received such evaluations and, thus, were not deprived of due process. Id. at 85 (distinguishing United States ex rel. Smith v. Baldi , 344 U.S. 561 (1953), and McGarty v. O'Brien, 188 F.2d 151 (1st Cir. 1951)). In this context, the precise holding in Ake was simply that the failure to provide any evaluation did not comport with the Due Process Clause. See, e.g., id. at 74 (describing holding as requiring a state to "provide access to a psychiatrist's assistance") (emphasis added); id. at 83 (describing the Court's concern "that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed") (emphasis added); cf. Tuggle v. Netherland, 516 U.S. 10, 12 (1995) (per curiam) (describing holding in Ake as requiring the "assistance" of a psychiatrist). The above comments serve to illuminate our differences with the partial concurring opinion. That opinion would hold that the Due Pro- cess Clause guarantees Wilson the right to a thorough psychiatric examination that meets "the minimum standard of care set by the clinical psychology profession." Post at 20 (Michael, J., concurring in part and concurring in the judgment). Drawing from psychiatric texts, the partial concurrence insists that due process requires an exam that includes "a careful analysis of Wilson's medical records, compilation of an accurate social history (including any history of mental illness or substance abuse), and a complete mental and physical examination (employing whatever diagnostic tests were appropriate under the circumstances)." Post at 20, n.3. We cannot accept this position. As an initial matter, it reads more into the phrase "appropriate [psychiatric] examination" in Ake, 470 U.S. 68, 83 (1985), than that decision will bear. Significantly, there is no mention in Ake of the critical language advanced by the partial concurrence, namely the entitlement to some federally supervised standard of psychiatric care. Moreover, although the partial concurrence purports to distinguish between "an appropriate examination from the psychiatrist" and a "general right to effective assistance of a psychiatrist," post at 30, they turn out to be one and the same. Indeed, the partial concurrence acknowledges that the basic inquiry is a malpractice determination. See post at 29 ("[T]he right to counsel deals with lawyer malpractice while the right to a psychiatrist deals with psychiatrist malpractice.") (emphasis omitted). It is easy to see where this position would lead. "The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist's diagnosis." Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). Indeed, the partial concurrence's use of Dr. Fisher's report to pick at Dr. Killian's earlier conclusions demonstrates the psychiatric quagmire in which the recognition of this new constitutional claim would immerse us.

Finally, we are reluctant to permit the purely hypothetical horror story advanced by the partial concurrence to establish a broad, free- standing constitutional claim to the effective assistance of a psychia- trist. The Due Process Clause does not require this further transfer of function from its traditional state court locus to federal collateral review. "A conclusion to the contrary would require . . . federal courts to engage in a form of `psychiatric medical malpractice' review . . . of state court judgments." Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). It is clear that Wilson committed the acts which resulted in his capital conviction. The path lit by the partial concurring opinion refocuses the federal habeas inquiry from actual to legal innocence to a much greater extent than we are willing to do. See Calderon v. Thompson, 118 S. Ct. 1489, 1502-03 (1998) (distinguishing between claims of actual and legal innocence).

Even if Ake's use of the term "appropriate" suggests that an examination must satisfy some minimal level of professional competence, Dr. Killian has clearly satisfied it here. In May 1993, he interviewed Wilson for approximately ninety minutes to determine his competency to stand trial and his sanity at the time of the offense. At this meeting, he explored Wilson's educational background, medical history, and criminal record. Dr. Killian also evaluated Wilson's cognitive processes and understanding of the legal proceedings against him.

The Department states that the rule is justified by "multifarious purposes and the impossibility of accommodating the practice of a profession or business in a penal setting." (Appellee's Br. at 25.) There is no evidence, however, that Jamal's prison writing,4 any more so than that of other inmates, has strained prison resources, contributed to unrest among the inmate population, or enhanced Jamal's stature as a prisoner, resulting in danger to himself or others. To the contrary, the Department was able to accommodate a live radio call-in show to promote another inmate's book. From the record it appears that Jamal's writing affected prison administration only when it went through the mail screening system--just like the rest of the inmates' mail. Until it imposed its "mail watch," the Department did not have to make any special accommodations for Jamal's writing. As for the Department's remaining asserted interest -- ensuring that prisoners are unable "to carry on with life as usual," Appellee's Br. At 8 -- the Department has failed to explain how this interest is reasonably advanced by allowing some prisoners to publish books but not allowing Jamal to do likewise. Even if this interest might justify a rule that precludes inmates from receiving compensation for their writings, we need not resolve the issue whether this interest can justify a rule preventing uncompensated (as opposed to compensated) speech, because we conclude that it is likely that Jamal can demonstrate that the Department's enforcement of the business or profession rule against him, was motivated, at least in part, by the content of his articles and mounting public pressure to do something about them, and hence, the actions were not content neutral as required by Turner, 482 U.S. at 90, 107 S. Ct. at 2262, and Pell, 417 U.S. at 822, 94 S. Ct. at 2804. * * * * *

Importantly, Jamal is a condemned man, whose only time to speak and write is now. The Department has not disavowed its intent to enforce the business or profession rule, and Jamal has also unequivocally stated that he will continue to write. Thus, there is no reason to believe that the Department will not subject Jamal to the same treatment in the future. The district court held that the reading and copying Jamal's legal mail was acceptable if the prison officials had "a reasonable suspicion that plaintiff was violating an institutional regulation by engaging in a business or profession in which wittingly or not one or more of his attorneys was complicit." The Department argues in support that its decision to open Jamal's legal mail was necessitated by its investigation into whether Jamal was conducting a business or profession. This argument is nonsensical. We have difficulty seeing the need to investigate an act that Jamal openly confesses he is doing. Jamal's writing is published, and he freely admits his intent to continue. Continued investigation and enforcement of the rule invades the privacy of his legal mail and thus directly interferes with his ability to communicate with counsel.
 

Teague v. Jonson Fifth Circuit in a brief opinion writes "once the appellate mandate issues, a habeas petition is no longer pending before the court of appeals, and we have no jurisdiction to stay proceedings under § 2251."

Calderon v. USDDC Ninth Circuit holds mandamus inappropriate in this capital case where the Warden's petition "has not established that the district court's order is clearly erroneous, an oft-repeated error or that it raises new and important problems that should be con- sidered outside of the normal appeal process. Thus, manda- mus is not appropriate in this case," concerning certification of a habeas petition in this capial case.
 

Canales v. Roe Ninth Circuit holds no constitutional foul where his appeal was dismissed due to "Canales'own subsequent conduct caused the demise of his appeal rights."

Chambers v. Thompson  Eleventh Cicruit affirms district court denial on the merits the claims that had been raised in state court, and it denied as procedurally barred those which had not been, in so doing the panel recognizes prior circuit precedent on procedural default is no longer good law.

 Johnson v. United States Sixth Circuit examines release of a prisoner whose sentence was modified and calculation of release date.

Goodman v. United States Eleventh Circuit holds petition fiiled sixteen days after the effective date of §105 of the AEDPA improperly dismissed on timeliness grounds.

Glass v. Ahitkow Seventh Circuit examines the AEDPA's filing deadlines.

Frey v. Schuetzle Eighth Circuit holds that the defendant voluntarily and knowingly waived his right to testify; attorney reasonable in advising defendant not to testify; affirmed.

Griffin v. Mann eSecond Circuit denies equal protection challenge to  New York's persistent felony offender

Robbins v. Smith Ninth Circuit affirms the merits of the grant of habeas relief, but remands for exhaustion issues.

Corrao v USA, Second Circuit holds "construing petitioner's motion for a COA as a motion for leave to file a successive petition, we deny that motion."

Henderson v. Frank Third Circuit olds that his invalid waiver of counsel and subsequent lack of representation at the suppression hearing violated the Sixth Amendment, "affording Henderson a new suppression hearing and a new trial."

Ashker v.  Class Eighth Circuit holds claims procedurally defaulted for failure to raise them in state habeas proceedings affirmed; prosecutor's actions did not violate due process rights.
 

Schaefer v. Goch et al Seventh Circuit examines the results of the police shooting a bystander.

Sperrow v. Melvin Seventh Circuit examines in forma pauperis payments for appeal.

Steidl v. Gramley Seventh Circuit addresses issues raised in prisoner's suit claiming failure to protect him from other inmates.

Davis v. Fechtel Fifth Circuit holds "Congress did not intend for the term "civil action" to include section 2241 habeas proceedings, we find that the PLRA does not apply. Additionally, we determine that the district court properly dismissed Davis's third petition as an abuse of the writ. Because Davis has failed to present a nonfrivolous issue on appeal, we deny his motion for leave to proceed in forma pauperis."

Rhoden v. Campbell  Sixth Circuit holds "failure of appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend."

Frost v. Agnos Ninth Circuit "remand[s] for determination of whether Frost was administered an antipsychotic drug without proper procedural safeguards. We reverse the district court's denial of Frost's request for a jury trial on the claim stemming from the failure of Officers Coffman and Jackson to assist him with his crutches. "

Brandon v. Laux  Eighth Circuit holds plaintiff failed to show defendant, a law enforcement officer, Knew of Section 1985 conspiracy against plaintiff's decedant.

Wilson v. Lawrence Cty, MO  Eight Circuit reverses summary judgment in favor of defendants on section 1983 claims alleging biased investigation and prosecution which caused plaintiff to be wrongly convicted.

Illinois extends death penalty

Judges Split on Constitutionality of Jury Challenge to NY Death Penalty

Federal 3 strikes law, stricken

Criminal Decisions Stayed Narrow by the Supreme Court

California Doctors Sue Over Lethal Injection

Panel Rejects Challenge to Persistent Felon Law

New York High Court to Hear Death Penalty Appeal

New War Crimes Trial Starts

 Fallout From 'Singleton' Bribe Ruling

OK, Let's All Go to the Right (Supreme Court)

Parting note:Over the course of the next few weeks the website will be changing again.  Most notably the main page will feature the most recent  weekly mailing and all new cases (most likely styled "Capital Defense Weekly advance sheet") will be added as they are decided, the ultimate goal is more meat, less links.  Also (hopefully) coming in the next few months is an index of past cases and editions. Similarly my deep and sincere apology for the drastic editing this week & those cases I am sure I missed,  Jark
 

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