The various federal  Courts of Appeals this week seem to have decided on a single theme, the rules of habeas procedure, in decisions, both capital and non-capital.   The Tenth Circuit lays out the rules for federal evidentiary hearings (pre-AEDPA) in Bigler Stouffer v. Reynolds in the course of examining  what constitutes ineffective assistance of counsel.  The Tenth Circuit in a separate capital habeas opinion, Bobby Lynn Ross v. Ward, examines certificates of appealability, and, much more importantly substantively, the definitions of aggravating circumstances.  The Fourth Circuit denies relief to Ronald Yeats v. Angelone, while (apparently) creating a new procedural default rule for habeas petitioners in that Circuit, and on the substantive merits concerning  jury qualifications.  The Ninth Circuit defines the contours of habeas jurisdiction and the "in custody" requirements in Kevin Malone v. Calderon (executed last week in Missouri) where the petitioner was transferred recently from a California prison to Missouri & Henry v. Lungren, a non-capital habeas case.  In one final case, Palmer v. State , the Indiana Supreme Court, holds that where gunmen and the police "shoot it out" and the police kill one of the gunmen all surviving gunmen are liable for the death under the felony murder rule.

This issue runs a little longer then most due to a longer quotation format due to the gravity and complexity of several of these issues, my apologies in advance.

In challenging his attorneys' performance at trial, Petitioner does indicate specific instances alleged to fall below an objective standard of reasonableness. With citations to the record, Petitioner catalogs lead counsel Mr. Cantrell's failure to prepare and present a certified copy of a defense exhibit to buttress Petitioner's self-defense theory; Mr. Cantrell's inability to conduct the direct examination of his witnesses without asking leading questions; counsel's failure to assert and explicate challenges for cause in seating members of the jury who had police connections or a close personal friend who had been shot; counsel's cross-examination of the State's witnesses, which, most often served to restate and highlight the most damaging elements of the direct testimony; counsel's failure to deliver an opening statement at either phase of his trial; and Mr. Cantrell's "rambling, incoherent, and irrelevant recitation of historical anecdotes and patriotic platitudes" during his closing argument which provided the prosecutor with another opportunity to seize on the apparent weakness of Petitioner's case to the jury. Indeed, Petitioner asserts the "impression left by counsel's performance was that Mr. Stouffer had no viable defense." Petitioner contends these examples demonstrate counsel failed to "exercise the skill, judgment and diligence of a reasonably competent defense attorney." Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. 1980) (en banc).  . . .
 

While the failure to present an opening statement, standing alone, is not ineffective assistance of counsel, United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993), its absence here serves to underscore the lack of any discernible effort by Petitioner's counsel to present a defense. Indeed, a review of the record establishes, except for Petitioner's testimony, each apparent effort to develop the defense theory was thwarted by defense counsel's objective incompetence. For example, apparently to impeach Mr. Ivens' testimony about his condition after the shooting, Mr. Cantrell attempted to introduce a certified copy of a defense exhibit to show Mr. Ivens directed his attorney to file a civil suit attaching Petitioner's property the day after he was shot. Because the document was not properly file stamped, the court prohibited its admission. Although the federal district court agreed counsel's inability to properly prepare the exhibit for admission fell "below prevailing norms of representation," it faulted Petitioner's argument for failing to show how introduction of this particular document "would have caused a different outcome in the trial," suggesting alternative inferences the jury could have drawn had the exhibit been introduced However, juxtaposed to the failed defense effort to elicit any testimony about the contested property settlement allegedly involving different bank statements and a life insurance policy and the victim's drinking habits, this particular exhibit remains another unexamined link in an indiscernible defense. In each instance, defense counsel was unable either to lay a proper foundation to predicate the particular question or offer a plausible explanation for the basis of the question to the trial judge to overcome the court's sustaining the State's objection.  Taken alone, no one instance establishes deficient representation. However, cumulatively, each failure underscores a fundamental lack of formulation and direction in presenting a coherent defense. Whether that amounts to a viable Sixth Amendment violation satisfying Strickland's two-pronged inquiry requires further evidentiary exploration to assure that hindsight has not distorted these examples, 466 U.S. at 689, or "sound trial strategy" has not unduly sheltered them.

We couple this concern over counsel's conduct in presenting a defense with their overall trial strategy, as Mr. Cantrell articulated in the Affidavit.

Defense trial strategy as to the first stage of Case No. F-85-443 was to show the inconsistency of the evidentiary facts as alleged by the State. This was primarily to be done through cross-examination of the State's witnesses and presentation of the State's imperical [sic] evidence in it's [sic] true light to the jury.  . . .

Finally, we would note closing arguments offered by both defense counsel. Mr. James led off by telling the jury he would not go over the entire case but rather address the testimony of the expert witnesses. Instead, he spoke generically about the jury's role, the State's burden, and raised some questions about why Ms. Reaves did not run out of the house when she heard the first shots; how her head was slumped; and why Petitioner would borrow a gun when he had access to one at Velva's house. A second time, he told the jury he had hardly been on the case longer than they: "Actually one week ago today is when I really started working on the case."

In tandem, Mr. Cantrell reviewed the State's theory of the shooting and key testimony introducing a new line of defense that the police misinvestigated the case, instantly targeting Petitioner and failing to explore other possibilities and suspects.  After that lengthy narration, Mr. Cantrell told the jury how the timing of this trial, beginning just before the fourth of July, prompted him to think about 209 years before and how the Declaration of Independence to which the signers pledged their lives was in such stark contrast to the sloppy way the State had presented its case. Pages later in the record after the State objected, Mr. Cantrell proceeded to tell a last anecdote about a friend who served as Assistant Chief of Staff at the White House and the friend's experience with a group of African Freedom Fighters at the Jefferson Memorial to illustrate the jury's role in assuring a fair trial. Prosecutor Macy commenced his closing statement with an apology for the length of the closing arguments and promised he would not give any lessons in American history.

If defense counsel's trial strategy was to "show the inconsistency of the evidentiary facts," the record reveals the strategy served to reinforce the State's evidence without ever, except for Petitioner's isolated testimony, presenting a case in defense. Each key piece of defense evidence was thwarted by defense counsel's inability to advance it. This is not hindsight. These are the facts of defense counsel's performance at the time of a capital trial. To shelter these facts with the mantle of trial strategy defies experience, we believe, and countenances deficient practice in such a high-stakes setting.

Nonetheless, without benefit of an evidentiary hearing, our judgment of counsel's performance as deficient remains unsettled given the Court's admonition in Strickland to avoid the seduction of hindsight review. Moreover, it represents only half the analysis. We must determine whether the failure to provide Petitioner with objectively reasonable representation prejudiced the defense such that we cannot say the result is reliable. Strickland, 466 U.S. at 687. We focus that analysis by addressing the third prong of Petitioner's ineffectiveness claim, the lack of mitigating evidence presented during the penalty phase of his trial.
 

*****
[As to penalty phase ineffectivenss]
Petitioner contends counsel's failure to investigate, prepare, and present mitigating evidence not only demonstrated deficient representation but also clearly caused prejudice, denying him the prospect of the potential single juror who would not vote for the death penalty. He maintains counsel treated the penalty phase as "a mere afterthought," calling only one witness who raised for the first time the presence of a "personality disorder" of immaturity, which, in fact, contradicted the self-defense theory by attempting to offer some excuse for the murder.

Again, because there has been no evidentiary hearing in either the state or federal court, we look to Mr. Cantrell's Affidavit explaining his strategy at the penalty phase:

It is the recollection of Chief Defense Counsel that the Defendant requested no witnesses to be called in the second stage other than Dr. Call.

....

It was, and is, the opinion of Chief Defense Counsel that had character witnesses been called for the Defendant, such testimony would have made little or no impression of a positive nature upon the jury. Additionally, such a maneuver would have allowed the State to present evidence showing, in their opinion, the bad character of the Defendant. Had the State [sic] allowed, by the opening of the issue of character by the defense, to present refuting evidence of bad character it is the opinion of Chief Defense Counsel that the prejudice against the Defendant to the jury would have outweighed whatever possibly helpful evidence might have been presented to the jury on the issue of the Defendant's character.

The Defendant did not want the evidence of Dr. Call concerning the Defendant's absolute imaturity [sic] placed into the record. It was, and is, the opinion of Chief Defense Counsel that Dr. Call's testimony was the only qualified expert evidence that could be given in mitigation of the punishment to be assessed against the Defendant.

The Defendant did advise counsel that the Defendant believed that the Defendant had flunked Dr. Call's test. Upon inquiry to Dr. Call, Chief Defense Counsel was advised by Dr. Call that the test was of such a nature that the Defendant could not "flunk" the test. That is, the test measured psychological traits of the Defendant, not imperical [sic] knowledge.

It was the belief of the Chief Defense Counsel that Dr. Call's testimony would establish the Defendant's inability to emotionally or intellectually act or react beyond the level of an early adolescent child. This being the case, it was the belief of Chief Defense Counsel that in sentencing, the jury would determine that the punishment assessed against the Defendant would be commensurate to punishment leveled against an early adolescent child in similar circumstances. In short, it was believed that Dr. Call's testimony would incline the jury to assess a merciful punishment against the Defendant.

First, the Affidavit addresses counsel's decision not to call other witnesses to offer evidence in mitigation of Petitioner's sentence. Mr. Cantrell recalled Petitioner directed him not to do so although Petitioner contradicted that representation in a supplemental record accompanying his 1986 post-conviction petition. Attached to that filing were affidavits submitted by family members, business acquaintances, and friends describing Petitioner as a person of high morals, good judgment, and trustworthy character. However, Mr. Cantrell explained he did not place Petitioner's character in issue during the penalty phase to forestall the State's introducing evidence of bad character. The district court placed Mr. Cantrell's decision not to call additional witnesses "within counsel's strategic discretion," although it found "nothing in the record to suggest petitioner previously exhibited violent behavior." It further found Petitioner was not prejudiced by the Oklahoma Court of Criminal Appeals' consideration of "an allegation of past violent behavior although no evidence of such behavior existed on the record."

Lurking behind the tactical decision not to place Petitioner's character at issue was a tape of a telephone call, apparently recorded at an Oklahoma City police station, in which the caller, in a rambling, free-associational manner, suggested Petitioner was involved in drugs, prostitution, and gambling. Although the state trial court ruled the tape inadmissable, calling it "rank hearsay," the tape remains with the record and serves as a persistent echo about Petitioner's "bad character." Thus, on the basis of this nonentity in the record and no representation from the State it had any evidence to offer of "bad character," Mr. Cantrell made the "tactical decision" not to call other witnesses. Moreover, Mr. Cantrell made no effort, at least as represented by the Affidavit, to investigate any mitigating evidence.

As a second area of concern, judging counsel's explanation at the time the decision was made, that is reconstructing "the circumstances of counsel's challenged conduct, and [] evaluat[ing] the conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, we are baffled by the reasonableness of Mr. Cantrell's proceeding with this one witness, against the wishes of his client, upon the belief that a jury that took less than an hour to find him guiltywould choose to spare his life because he behaved like an adolescent. Nothing in the guilt phase of the trial, incorporated into the penalty phase, indicated Petitioner behaved immaturely and impulsively. Indeed, Doug Ivens testified he relied upon Petitioner to negotiate with Velva to visit his daughters. Velva Ivens described the good relationship Petitioner enjoyed with her children. However, in closing, defense counsel did not reiterate any positive evidence about Petitioner. Instead, Mr. Cantrell apologized to the jury for appearing to zealously represent his client; did not attempt to revisit any positive character information from the trial's first phase; and did not underscore Petitioner's lack of a criminal record, or attempt to plead for Petitioner's life, other than to tell the jury he was almost a half century old so life imprisonment would not last an inordinately long time.

While the decision to present no mitigating evidence may be a tactical one, the failure to investigate the existence of any such evidence triggers a fundamental component of the Sixth Amendment.

The duty to investigate derives from counsel's basic function, which is to make the adversarial testing process work in the particular case. Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, [the Supreme Court has] noted that counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

Williamson, 110 F.3d at 1514 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)) (internal quotation marks omitted). We have frequently stated, "In a capital case the attorney's duty to investigate all possible lines of defense is strictly observed." Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir. 1998), cert. denied, 119 S. Ct. 345 (1998) (quoting Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986)). Although we have never delineated the bounds of that duty, Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994), we have stated, "an attorney must have chosen not to present mitigating evidence after having investigated the defendant's background, and that choice must have been reasonable under the circumstances." Id. at 1369 (citations and internal quotation marks omitted) Nonetheless, "[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality opinion).

The introduction of mitigating evidence individualizes the capital sentencing decision. The Supreme Court has underscored every defendant's right to introduce mitigating evidence at capital sentencing because the death sentence is "so profoundly different from all other penalties." Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) (emphasis added). Thus, we must closely scrutinize counsel's performance to assure their representation appreciated the role of mitigating evidence in the second phase of Petitioner's trial. In this context, the objective reasonableness of counsel's performance is not assessed by the attorney's general legal skill, experience, and knowledge. "When the choice is between life and death," id., we must demand more of counsel's representation to assure defendant "[t]hat a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command." Strickland, 466 U.S. at 685.

To establish entitlement to an evidentiary hearing under pre-AEDPA law, a petitioner must "make allegations which, if proved, would entitle him to relief." Medina v. Barnes, 71 F.3d 363, 366 (10th Cir. 1995) (citation omitted). "[W]here an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew." Townsend v. Sain, 372 U.S. 293, 312 (1963). When the facts are in dispute, the federal district court "must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding." Id. In this case, we believe Petitioner has alleged specific and particularized facts, which, if proved, would entitle him to relief. Hatch v. State of Okla., 58 F.3d 1447, 1471 (10th Cir. 1995).

Nevertheless, before a hearing is mandated, we recognize Petitioner must also satisfy the second Strickland hurdle, whether he has been prejudiced by counsel's alleged ineffective assistance; that is, whether there is a reasonable probability that but for his attorneys' deficient representation, the result would have been different at the guilt and penalty stages. Again, given the state of this record before us, we cannot prognosticate. Absent an evidentiary hearing, we may only bandy the merits of the ineffective assistance claim about piecing together fragments and substituting conjecture for reasoning. Most importantly, because an ineffectiveness claim is a mixed question of fact and law, the adequacy of the record is essential. We therefore conclude the district court erred in failing to hold an evidentiary hearing to assess Petitioner's allegations of ineffective assistance of counsel as we have delineated that issue.

Capital Cases

Bobby Lynn Ross v. Ward Tenth Circuit denies relief to this death sentenced Oklahoma man on the grounds claims of (1) whether the denial of Mr. Ross' motion for the appointment of expert psychiatric or psychological assistance with respect to both stages of trial deprived him of his constitutional rights; (2) whether the death sentence is unconstitutional because the aggravating circumstances used to support it were both unconstitutionally interpreted and applied by the Oklahoma Court of Criminal Appeals and insufficiently supported by the evidence; and (3) whether the death sentence is infirm under the Eight Amendment because the "especially heinous, atrocious, or cruel" aggravating circumstance was vacated by the Oklahoma courts." The panel declines to review issues where no COA was entered by the district court on: "(1) whether the prosecution's failure to give notice of one of the aggravating circumstances constituted a violation of Mr. Ross' Eighth and Fourteenth Amendment rights; and (2) whether prosecutorial misconduct, particularly in the penalty phase, deprived Mr. Ross of his constitutional rights."

In support of Mr. Ross' death sentence, the jury found the following five aggravating circumstances: (1) Mr. Ross knowingly created a great risk of death to more than one person; (2) the murder was especially henious, atrocious, or cruel; (3) the murder was committed to avoid or prevent a lawful arrest or prosecution; (4) there exists a probability that Mr. Ross would commit criminal acts of violence that would constitute a continuing threat to society; and (5) the victim of the murder was a peace officer. See Trial Ct. Rec. at 366. In 1992, the Oklahoma district court invalidated the "especially heinous" aggravator but, in reweighing the remaining factors, found beyond a reasonable doubt that the death penalty would have been given. The Oklahoma Court of Criminal Appeals affirmed this finding. See Ross, 872 P.2d at 941.

Mr. Ross claims that both the "continuing threat" aggravator and the "great risk of death" aggravator are unconstitutionally vague and overbroad as applied in Oklahoma and that the evidence was legally insufficient to support them. Mr. Ross also contends that, because the "especially henious, atrocious, or cruel" aggravating circumstance was vacated by the Oklahoma courts, the death sentence is infirm under the Eighth and Fourteenth Amendments and that the reweighing of the remaining aggravating circumstances was inadequately conducted.

An aggravating circumstance is constitutional so long as it: (1) "[does] not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder" and (2) the aggravating circumstance is not unconstitutionally vague. Tuilaepa v. California, 512 U.S. 967, 972 (1994). We review the constitutionality of aggravating circumstances de novo, see Cooks v. Ward, 1998 WL 869691, at *4 (10th Cir. Dec. 15 1998), and find no constitutional error that warrants habeas relief.

1. Continuing Threat Aggravating Circumstance

Mr. Ross contends that the "continuing threat" aggravating circumstance, as applied in Oklahoma, is unconstitutionally vague and overbroad; is not sufficiently limited in scope because it can exist as to almost any murder; and was not founded on sufficient evidence in this case. In support of this claim, he relies on the reasoning of Williamson v. Reynolds, 904 F. Supp. 1529 (E.D. Okla. 1995), where a federal district court ruled that the continuing threat aggravating circumstance was unconstitutionally vague and overbroad as interpreted and applied in Oklahoma.

Recently, this court has rejected the reasoning of Williamson and held that the continuing threat aggravator as applied in the Oklahoma sentencing scheme does not violate the Eighth Amendment. See Castro v. Ward, 138 F.3d 810, 816 (10th Cir.), cert. denied, 119 S. Ct. 422 (1998); Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998). This court specifically found that the continuing threat aggravator is not "applicable to every defendant convicted of murder in the first degree." See Nguyen, 131 F.3d at 1354. Although Mr. Ross asks us not to follow this reasoning, we are bound by these decisions. SeeUnited States v. Foster, 104 F.3d 1228, 2339 (10th Cir. 1997).

Mr. Ross contends that the jury may have relied on evidence of other crimes that was not properly admitted in finding this aggravating circumstance. Specifically, he asserts that it was unconstitutional for the jury to hear evidence about an unadjudicated murder in Texas during the sentencing stage. This contention is directly contrary to our decision in Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir. 1995), where this court held that "the admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process."

After a thorough review of the record before us, we find that there is sufficient evidence to support the jury's finding of the continuing threat aggravating circumstance. Thus, Mr. Ross' claims regarding the continuing threat aggravator are without merit.

2. Great Risk of Death to More than One Person

Mr. Ross claims that the Oklahoma court applied and interpreted the "great risk of death to more than one person" aggravating circumstance in a vague and overbroad manner. In addition, Mr. Ross argues that there is no evidence that anyone other than Sergeant Mahan was at a great risk of death.

We have explicitly held that the "great risk of death" aggravator is constitutional under the Eighth Amendment. SeeBrecheen v. Reynolds, 41 F.3d 1343, 1360 (10th Cir. 1994). This aggravator "cannot reasonably be said to apply to every defendant convicted of murder"--it "only applies to a defined and limited subclass of murderers, namely, those where the defendant's conduct not only resulted in murder, but also posed a significant risk of death to other individuals." Id. at 1360.

The facts underlying Mr. Ross' case meet the requirement that the defendant created a risk of death to another who was in close proximity to the killing itself in terms of time, location, and intent. See Snow v. State, 876 P.2d 291, 297 (Okla. Crim. App. 1994). Ms. Sandefur testified that although she never saw Mr. Ross' weapon, she was told that she would be shot and killed if she did not obey Mr. Ross' commands. Ms. Sandefur did believe that her life was in danger, and Mr. Ross did have a deadly weapon that he used moments after the robbery. Therefore, we find that a jury could have reasonably concluded that Mr. Ross' actions caused a great risk of death to more than one person.

3. Appropriateness of Reweighing After Invalidating the Especially Heinous, Atrocious, or Cruel Aggravator

Mr. Ross contends that, upon invalidating the "especially heinous, atrocious, or cruel" aggravating circumstance, the Oklahoma courts' refusal to set aside the death penalty after reweighing the aggravating and mitigating circumstances was unconstitutional. Mr. Ross also argues not only that it was improper to reweigh the remaining aggravating circumstances, but also that the harmless error analysis conducted in this case does not meet federal constitutional standards.

In Clemons v. Mississippi, 494 U.S. 738, 745 (1990), the Supreme Court held that a defendant's constitutional rights are not "infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence." Thus, in light of Clemons, the Oklahoma district and appellate courts did not violate Mr. Ross' constitutional rights by deciding to reweigh the aggravating and mitigating circumstances.

Mr. Ross contends that the reweighing conducted by the Oklahoma district court and Oklahoma Court of Criminal Appeals was inadequate because it failed to adequately discuss the reasons for upholding the death penalty given the invalid aggravating circumstance. He claims that the reweighing by the state district court was "extremely brief and conclusory, failing entirely to list and discuss the evidence in mitigation, the emphasis placed by the prosecutor on the infirm aggravating circumstance, or any other considerations crucial to a reweighing process" and that the Court of Criminal Appeals affirmed without conducting any analysis. Pet. Brief at 34. Mr. Ross relies on Stringer v. Black, 503 U.S. 222 (1992), and Richmond v. Lewis, 506 U.S. 40 (1992) to support his argument.

We disagree with Mr. Ross' interpretations of Stringer and Richmond. In Stringer the Supreme Court emphasized the necessity of "close appellate scrutiny of the import and effect of invalid aggravating factors." Stringer, 503 U.S. at 230. Stringer only requires that the state appellate court either conduct a harmless error analysis or independently reweigh the aggravating and mitigating evidence--it does not require the court "to discuss the effect the invalid aggravating factor had on the jury's original sentencing decision." Moore v. Reynolds, 153 F.3d 1086, 1115 (10th Cir. 1998) (discussing Stringer). In Richmond, the Court stressed the need to determine whether the state court actually reweighed the remaining aggravating and mitigating circumstances. SeeRichmond, 506 U.S. at 48. The Court did not, as Mr. Ross suggests, hold that the state court unconstitutionally reweighed the remaining factors by not mentioning mitigating evidence. The reweighing in Richmond was unconstitutional because the state court failed to conduct any reweighing analysis whatsoever. See id. at 49 (finding state Supreme court justices utilized an "automatic affirmance rule" rather than actually reweighing the factors).

We review de novo the Oklahoma courts' decision to reweigh the aggravating and mitigating factors to determine whether Mr. Ross was afforded "an individualized and reliable sentencing determination based on [his] circumstances, his background, and the crime." Clemons, 494 U.S. at 749; seeStafford v. Saffle, 34 F.3d 1557, 1569 (10th Cir. 1994). We review the court's factual findings regarding the aggravating and mitigating factors under the "rational factfinder" standard, viewing the evidence in the light most favorable to the prosecution. Lewis v. Jeffers, 497 U.S. 764, 781 (1990); seeStafford, 34 F.3d at 1569.

"[T]he United States Supreme Court 'has never specified the degree of clarity with which a state appellate court must reweigh in order to cure an otherwise invalid death sentence.'" Correll v. Stewart, 137 F.3d 1404, 1418 (9th Cir.), cert. denied, 119 S. Ct. 450; 465 (1998) (quoting Jeffers v. Lewis, 38 F.3d 411, 414 (9th Cir. 1994)). The Court has not translated its call for "close appellate scrutiny of the import and effect of invalid aggravating factors," Stringer, 503 U.S. at 230, into a clear set of requirements for a constitutional reweighing analysis. Thus, we must only determine that the Oklahoma courts actually reweighed so that the aggravating circumstance provided "principled guidance," Richmond, 506 U.S. at 46, and not necessarily a "conclusive justification" for the death penalty." Id. at 49.

Applying this standard, we find that the reweighing was consistent with Clemons and its progeny and that the Oklahoma courts' factual findings as to the four remaining aggravating circumstances and the mitigating circumstances meet the rational factfinder standard. Therefore, the reweighing conducted by the Oklahoma district court and affirmed by the Oklahoma Court of Criminal Appeals is sustained.

"Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." Burger v. Kemp, 483 U.S. 776, 785 (1987). Having given careful consideration to Mr. Ross' claims, we find no constitutional error and affirm the denial of Mr. Ross' petition for a writ of habeas corpus.

Ronald Yeats v. Angelone Fourth Circuit denies relief to this Virginia capital habeas petition on claims "that the state trial court violated his constitutional right to due process by failing to permit him to inform the jury that he would not be eligible for parole for 30 years if sentenced to life imprisonment and that his trial counsel was constitutionally ineffective for failing to adequately voir dire prospective members of the jury concerning their ability to consider a life sentence.  Addressing these issues in reverse order:
 

Even if Rule 5:17(c) were not adequate to foreclose federal habeas review, we nevertheless would decide that Yeatts is not entitled to relief. Yeatts maintains that he was deprived of the effective assistance of counsel by his attorneys' failure to conduct a voir dire ade quate to death qualify prospective jurors.  . . .

The Sixth and Fourteenth Amendments "guarantee[ ] a defendant on trial for his life the right to an impartial jury." Morgan v. Illinois, 504 U.S. 719, 728 (1992). And, "`the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."'" Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)) (alteration in original). "[A] juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause." Id. Likewise, "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do"; such a juror is not impartial and should be removed for cause. Id. at 729. A corollary of the right to an impartial jury is the requirement of a voir dire sufficient to permit identification of unqualified jurors because without an adequate voir dire, a trial judge will not be able to remove unqualified jurors and the defendant will not be able to exercise challenges for cause. See id. at 729-30. Thus, a capital defendant must be allowed
in voir dire to ascertain whether prospective jurors are unalterably in favor of the death penalty in every case, regardless of the circumstances, rendering them unable to perform their duties in accordance with the law. See id. at 735-36. Questions directed simply to whether a juror can be fair, or follow the law, are insufficient. See id. at 734- 36.

Yeatts contends that defense counsel's voir dire questions concerning the capital sentencing scheme in Virginia were inadequate to allow counsel to discern whether the jurors would be able to follow their instructions. Yeatts maintains that although the jurors were asked whether they felt the death penalty was warranted as a punishment for every capital murder, counsel did not explain to the jurors that the death penalty may not be imposed in Virginia until the jury has convicted the defendant of capital murder and unanimously found an aggravating factor. Thus, Yeatts asserts that counsel should have informed the jurors of this fact and asked whether the jurors could consider a sentence of less than death once they returned a guilty verdict and found an aggravating factor. Only if this information is obtained from the jurors, Yeatts argues, is sufficient information available for the court and counsel to properly evaluate challenges for cause and exercise peremptory strikes. We disagree.

In Mackall v. Angelone, 131 F.3d 442, 450-51 (4th Cir. 1997) (en  banc), cert. denied, 118 S. Ct. 907 (1998), this court addressed the constitutional sufficiency of voir dire indistinguishable from that challenged as inadequate here; the state trial court asked prospective jurors the following questions relating to the death penalty:

Do you have any opinion such as to prevent any of you from convicting anyone of an offense punishable with death?
....

If you were to find the defendant guilty of capital murder, is there any juror who could never vote to impose the death penalty or would refuse to even consider its imposition in this case?
...

If you were to sit as a juror in this case and the jury were to convict the defendant of capital murder, would you also be able to consider voting for a sentence less than death?

Id. at 451. No questions concerning aggravating factors were asked. This court held:

These questions focus on the relevant circumstance of whether a prospective juror entertains opinions on capital punishment that would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath and are adequate to identify those who would automatically vote for the death penalty. Consequently, we conclude that the voir dire conducted by the state trial court did not violate [the petitioner's] Sixth or Fourteenth Amendment rights.Id.

Because Yeatts' prospective jurors were asked questions during voir dire that were virtually identical to those deemed constitutionally adequate to ensure a fair and impartial jury in Mackall, Yeatts' claim that he was denied effective assistance of counsel must fail. Yeatts cannot demonstrate that counsel acted unreasonably in failing to ask prospective jurors questions other than those this court has held sufficient to permit a meaningful determination of possible bias on the part of the jurors. Further, he is unable to demonstrate that he suffered any prejudice as a result of voir dire that was constitutionally adequate.

*   *   *  *
Yeatts first contends that the state trial court deprived him of due process by refusing to permit him to inform the jury that, taking into account the 20-year sentence he received for the robbery, he would not be eligible for parole for 30 years if he were given a life sentence for Dodson's murder. See Clemons v. Mississippi , 494 U.S. 738, 746 (1990) (recognizing that "[c]apital sentencing proceedings must ... satisfy the dictates of the Due Process Clause"). Yeatts maintains that the Due Process Clause of the Fourteenth Amendment mandates that he be permitted to respond to evidence and argument offered by the prosecution and that the refusal of the trial court to inform the jury of his parole eligibility deprived him of his due process right to respond to the Commonwealth's evidence and argument concerning his prior criminal record. .....

[The Commonwealth not raising the defense of procedural default in the court below,] [n]evertheless, in the presence of overriding interests of comity and judicial efficiency that transcend the interests of the parties, a federal habeas court may, in its discretion, deny federal habeas relief on the basis of issues that were not preserved or presented properly by a state. See Granberry v. Greer, 481 U.S. 129, 131-36 (1987) (holding that based on concerns of comity and judicial economy, a federal habeas court, within its discretion, may raise an exhaustion defense that was not raised in the district court). Those concerns support the conclusion that a federal habeas court possesses the authority to address, in its discretion, whether there exists an unexcused adequate and independent state-law ground for a denial of relief from a chal lenged conviction or sentence. ...

Yeatts' procedural default is obvious because he did not  raise --either on direct appeal or in his state habeas petition--any due process argument relating to the failure of the state trial court to inform the jury of his parole eligibility and because any attempt on his part to raise this issue in state court now would result in a determination that the issue has been procedurally defaulted. See Gray, 518 U.S. at 161-62; Va. Code Ann. #8E8E # 8.01-654 to -654.1 (Michie Supp. 1998). Accordingly, we hold Yeatts' argument that the state trial court violated his right to due process by failing to inform the jury of his parole eligibility is procedurally defaulted.

Kevin Malone v. Calderon Ninth Circuit holds that the transfer of a condemned prisoner from California to Missouri strips that court of an power to entertain a stay of execution or any other motion

Malone contends that the All Writs Act, 28 U.S.C. S 1651, and the Anti-Injunction Act, 28 U.S.C.S 2283, provide a jurisdictional basis for the issuance of a stay of execution. Neither act would support our exercise of jurisdiction over the prison officials in Missouri. Contrary to Malone's argument, the All Writs Act does not operate to confer jurisdiction and may only be invoked in aid of jurisdiction which already exists. See Westinghouse Elec. Corp. v. Newman & Holtzinger, 992 F.2d 932, 937 (9th Cir. 1993) (citing Stafford v. Superior Court, 272 F.2d 407, 409 (9th Cir. 1959).

Malone insists that Mitchum v. Foster, 407 U.S. 225 (1972), created an exception to the Anti-Injunction Act for habeas petitions. On this basis, he argues, we may exercise jurisdiction over the Missouri officials. The Anti-Injunction Act prohibits federal courts from staying proceedings in state courts except when necessary to aid the court's jurisdiction or to protect or effectuate a judgment of the court. While the Anti-Injunction Act may not bar a federal court from granting injunctive relief in a habeas case, the Act does not create jurisdiction in cases where the petitioner would otherwise be without recourse.

Malone contends that Missouri consented to the district court's exercise of jurisdiction by virtue of its intervention in the California habeas case. Malone's argument fails to account for the limited purpose of Missouri's intervention. The governors of Missouri and California entered into an agreement providing for the immediate extradition of Malone to Missouri. However, the district court prohibited California from relinquishing petitioner without the court's approval. Missouri then moved to intervene "for the limited purpose of resolving Petitioner's custody status as it relates to the executive agreement and the [c]ourt's September 16, 1996 order." Points & Authorities In Support of Missouri's Motion to Intervene at 2, filed June 19, 1998, Malone v. Calderon, No CV-96-04040-WJR (C.D. Cal.). Missouri intervened for a limited purpose and only after the district court prohibited Malone's transfer without the court's approval. We cannot exercise personal jurisdiction over the Missouri officials on the basis of Missouri's limited intervention in Malone's California habeas case.

Non-Capital Habeas Cases

Henry v. Lungren The Ninth Circuit examines the "in custody" requirement for federal habeas relief and finds that petitioner was not in custody when he brought this previously dismissed petition into the district court.

This case presents the novel question of whether the filing of the second habeas petition, following dismissal without prejudice of the first petition, relates back to the date of the first petition. The Federal Rules of Civil Procedure apply to habeas corpus proceedings "to the extent that the practice in such proceedings is not set forth in statutes of the United States." Fed. R. Civ. P. 81(a)(2). Rule 15(c)(2) provides for the relation back of an amended pleading to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. 15(c)(2). Henry's filing of the second petition does not, however, relate back under Rule 15(c)(2) to the filing date of the original habeas petition. The district court did not expressly or impliedly retain jurisdiction over Henry's original petition when the court dismissed for failure to exhaust. Because Henry's original habeas action was dismissed in 1995, there was no pending petition to which Henry's new 1997 petition could relate back or amend. See Lefkowitz v. Fair, 816 F.2d 17, 22-23 (1st Cir. 1987) (holding district court did not retain jurisdiction over habeas petition after dismissing petition without prejudice for failure to exhaust state remedies and not expressly or impliedly retaining jurisdiction); but see Williams v. Vaughan, 3 F.Supp.2d 567, 578 (E.D.Pa. 1998) (holding that filing of second amended petition relates back under Fed. R. Civ. P. 15(c) to original filing date of first habeas petition, which was dismissed without prejudice to refile after exhausting state remedies).

To hold that Henry's present petition relates back to his original petition would defeat the very purpose of habeas relief: "to effect release from illegal custody. " Preiser v. Rodriguez, 411 U.S. 475, 486 n.7 (1973). Although a petitioner's release from custody does not moot a pending habeas petition, Carafas v. LaVallee, 391 U.S. 234, 237 -38 (1968), Henry was released before he filed the petition that is before us. Because of this circumstance, there is no custody from which he could be released. And, because his original petition was dismissed, Henry's circumstances are unlike those presented in Miller v. Laird, 464 F.2d 533 (9th Cir. 1972), in which we held that an amended habeas petition related back to the date of the original petition and the district court retained jurisdiction where "the original petition had not been dismissed and the action was still pending." Id. at 534.

Park v. California Ninth Circuit reverse the district court's holding as to "procedural default on Park's Brady and speedy trial claims, and hold that Park's admission of evidence claim was not procedurally defaulted but affirm on the ground that Park did not adequately allege a due process violation in his federal petition."

Prisoner's Rights/Governemntal Misconduct Cases

Durgin v De La Vina Ninth Circuit remands with instructions to grant class certification for Arizona motorists who are routinely stopped by the INS on the basis, plaintiff's argue, on the basis of their color of their skin and the time of day they are driving.

Celske v. Edwards Seventh Circuit in a tightly parsed holding remands to the district court to reconsider the in forma pauperis stripping by the district court after the appellant filed a notice of appeal.

Gomez v. Chandler Fifth Circuit remands claims of brutality by prison guards where the guards " allegedly knocked [him] down so his head struck the concrete floor, his face was then scraped against the floor, he was repeatedly punched in the face by two officers using their fists for about five minutes and then a third officer kicked Gomez in the face and head, after which one of the two officers continued to hit Gomez with his fists. As a result, Gomez allegedly suffered "cuts, scrapes, contusions to the face, head, and body." On this record, we cannot say as a matter of law that Gomez's injuries were no more than de minimis [under the PLRA].

Decisions of Note

Palmer v. State Indiana Supreme Court expands the definition of felony murder to include the deaths of a co-defendant killed by the police.

In deciding whether a person may be convicted of felony murder for an allegedly indirect or remote death, we have applied the felony murder statute when the designated felony was “the mediate or immediate cause” of the death. Reaves v. State, 586 N.E.2d 847, 854-55 (Ind. 1992) (bed-ridden robbery victim died of a pulmonary embolism three weeks after a robbery); Pittman v. State, 528 N.E.2d 67, 70 (Ind. 1988) (burglary victim died from pulmonary embolism resulting from victim's obesity and post-operative immobility following laparotomy to determine severity of stab wound incurred in burglary); Sims v. State, 466 N.E.2d 24, 25-26 (Ind. 1984) (victim died of congestive heart failure following  surgery for fractured mandible suffered in the beating sustained during burglary). See also Thomas v. State, 436 N.E.2d 1109, 1111-12 (Ind. 1982) (victim died of acute cardiac arrhythmia during robbery); Booker v. State, 270 Ind. 498, 502, 386 N.E.2d 1198, 1201 (1979) (victim, age 74, died of arrhythmia following robbery in which he was knocked to the floor and “mauled”).

In the present case, the defendant engaged in kidnapping, one of the felonies designated in the felony-murder statute. He pointed a loaded and cocked handgun at the head of Officer Gehrich and thereafter fired it, injuring the officer. Such conduct clearly raised the foreseeable possibility that the intended victim might resist or that law enforcement would respond, and thereby created a risk of death to persons present. This felonious conduct was clearly “the mediate or immediate cause” of Williams's death.

The defendant also contends that the trial court erred in giving Jury Instruction 15(I), arguing that it resulted in his “being convicted of murder on insufficient evidence caused by the fatally flawed instruction.” Brief of Appellant at 17. His objection at trial was imprecise, but generally asserted that the instruction misstates the law (without identifying or explaining the basis of this claim), invades the province of the jury to determine intent, and confuses the jury. Record at 438. On appeal, he challenges this instruction on the basis that it allowed the jury to convict the defendant for Williams's murder despite a lack of evidence that he intended to kill Williams.

The State, however, did not charge the defendant with a knowing or intentional murder but with felony murder for a killing while committing kidnapping. The State need not prove intent to kill in a felony murder charge, only the intent to commit the underlying felony. Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993). Because the State was not required to prove that the defendant intended to kill Williams, this claim fails.
 

Requests Several requests have come in this week, due to space limitations one is included here, the remaining ones are at http://members.aol.com/capdefense.  The chosen request is  for voir dire information, specifically concerning Texas capital or even general capital life/death qualifying -- if you have anything on disk or otherwise, please let me put you in contact with recently appointed counsel in this case.

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ISSN: 1523-6684   Volume II, issue 2