This week offers four capital decisions, all losses.  The Supreme Court in a tersely worded opinion in Federal Republic of Germany et al v. United States, et al.  holds that the German government's original action was filed too late and that the Eleventh Amendment may bar relief.  In Wright v. Hopper Eleventh Circuit denies relief on Brady claims, ineffective assistance of counsel claims, Batson, and a Beck v. Alabama claim. In Tarver v. Hopper the Eleventh Circuit denies relief on a grab bag of claims relating to Batson, ineffective assistance of counsel and Giglio claims. In  Roberts v.  Bowersox (PDF only 991574P.pdf ) the Eighth Circuit denies relief on a successive petition seeking to stay an execution.

Unfortunately, the Eighth Circuit's opinions are only available in PDF format, for a PDF viewer for your browser, http://www.adobe.com/prodindex/acrobat/readstep.html.

 The motion of the Federal Republic of Germany, et al. (plaintiffs) for leave to file a bill of complaint and the motion for preliminary injunction against the United States of America and Jane Dee Hull, Governor of the State of Arizona, both raised under this Court’s original jurisdiction, are denied. Plaintiffs’ motion to dispense with printing requirements is granted. Plaintiffs seek, among other relief, enforcement of an order issued this afternoon by the International Court of Justice, on its own motion and with no opportunity for the United States to respond, directing the United States to prevent Arizona’s scheduled execution of Walter LaGrand. Plaintiffs assert that LaGrand holds German citizenship. With regard to the action against the United States, which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity. Second, it is doubtful that Art. III, §2, cl. 2 provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or consul. With respect to the action against the State of Arizona, as in Breard v. Greene, 118 S. Ct. 1352, 1356 (1998), a foreign government’s ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles. This action was filed within only two hours of a scheduled execution that was ordered on January 15, 1999, based upon a sentence imposed by Arizona in 1984, about which the Federal Republic of Germany learned in 1992. Given the tardiness of the pleas and the jurisdictional barriers they implicate, we decline to exercise our original jurisdiction.

Justice Souter with whom Justice Ginsburg joins, concurring.

I join in the foregoing order, subject to the qualification that I do not rest my decision to deny leave to file the bill of complaint on any Eleventh Amendment principle. In exercising my discretion, I have taken into consideration the position of the Solicitor General on behalf of the United States.

Justice Breyer, with whom Justice Stevens joins, dissenting.

The Federal Republic of Germany has filed a motion for leave to file a complaint, seeking as relief an injunction prohibiting the execution of Walter LaGrand pending final resolution of Germany’s case against the United States in the International Court of Justice (ICJ) – a case in which Germany claims that Arizona’s execution of LaGrand violates the Vienna Convention. The Federal Republic also seeks a stay of that execution “pending the Court’s disposition of the motion to file an original bill of complaint after a normal course of briefing and deliberation on that motion.” The International Court of Justice has issued an order “indicat[ing]” that the “United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these [ICJ] proceedings.”

The Solicitor General has filed a letter in which he opposes any stay. In his view, the “Vienna Convention does not furnish a basis for this Court to grant a stay of execution,” and “an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief.” The Solicitor General adds, however, that he has “not had time to read the materials thoroughly or to digest the contents.”

Germany’s filings come at what is literally the eleventh hour. Nonetheless, Germany explains that it did not file its case in the International Court of Justice until it learned that the State of Arizona had admitted that it was aware, when LaGrand was arrested, that he was a German national. That admission came only eight days ago, and the ICJ issued its preliminary ruling only today. Regardless, in light of the fact that both the International Court of Justice and a sovereign nation have asked that we stay this case, or “indicate[d]” that we should do so, I would grant the preliminary stay that Germany requests. That stay would give us time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved, including further views of the Solicitor General, after time for study and appropriate consultation.

The Court has made Germany’s motion for a preliminary stay moot by denying its motion to file its complaint and “declin[ing] to exercise” its original jurisdiction in light of the “tardiness of the pleas and the jurisdictional barriers they implicate.” It is at least arguable that Germany’s reasons for filing so late are valid, and the jurisdictional matters are arguable. Indeed, the Court says that it is merely “doubtful that Art. III, § 2, cl. 2 provides an anchor” for the suit and that a foreign government’s ability to assert a claim against as State is “without evident support in the Vienna convention and in probable contravention of Eleventh Amendment principles” (emphasis added). The words “doubtful” and “probable,” in my view, suggest a need for fuller briefing.

For these reasons I would grant a preliminary stay.

Wright contends that the State violated Brady v. Maryland, 373 U.S. 83, when it withheld several crucial items of evidence. These items include the testimony of Mary Johnson ("Johnson") which placed Theodore Otis Roberts ("Roberts") at the Western Auto Store shortly before the murders ("the Johnson testimony"); an affidavit of Detective Stroh that declared that Roberts's girlfriend had stated that a handgun belonging to Roberts was the weapon that was used to kill the Greens ("the Stroh affidavit"); evidence that Doris Lambert, Wright's former girlfriend and witness for the State at trial, had a history of poor mental health and drug use ("Lambert evidence"); and evidence that the State and Roger McQueen, a member of the robbery team and witness for the State, entered a secret agreement that provided lenient treatment for McQueen if he testified against Wright at trial ("McQueen agreement"). The district court found all but the Johnson testimony to be procedurally barred from federal court review.

In order to establish a violation of Brady, Wright must demonstrate:

(1) that the Government possessed evidence favorable to the defendant (including impeachment evidence) . . . ; (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence . . . ; (3) that the prosecution suppressed the favorable evidence . . . ; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. . . .

United States v. Meros, 866 F.2d 1304, 1308 (11^th Cir. 1989) (citations omitted). For Brady purposes, evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Stewart, 820 F.2d 370, 374 (11^th Cir. 1987)(citation and internal quotation marks omitted). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985).

1. The Johnson testimony

Mary Johnson reported to the police that she entered the Western Auto Store shortly before the robbery-murders. As she entered, she observed a blue automobile with several people in it. When she left the store, she met a person entering, and she observed the same blue automobile parked nearby with three people in the back seat and one person in the front seat. When she learned of the murders, she gave the police a description of the person she had seen entering the store. She subsequently identified a photograph of the person she saw and later identified the same person in a police line-up. The person she identified in both instances was Roberts, who bears a striking resemblance to Roger McQueen. The automobile Percy Craig drove on the day of the robbery-murders was blue. In light of this information, the State filed charges against Roberts and Mary Johnson testified at the preliminary hearing. Roberts was indicted, but the State dropped the charges after the prosecutors concluded that Johnson had misidentified him. See Wright v. State, 593 So.2d at 115.

Wright argued in his error coram nobis petition that the State suppressed the preliminary hearing testimony of Mary Johnson in violation of Brady v. Maryland, 373 U.S. 83. After conducting an evidentiary hearing, the trial court concluded that the State did not suppress evidence pertaining to Mary Johnson's identification of Roberts. On appeal, the Alabama Court of Criminal Appeals affirmed, holding that the record adequately supported the trial court's findings. The court noted that Wright's trial counsel was aware that the State had charged Roberts with the crimes prior to Wright's trial; that the preliminary hearing in Roberts's case was a matter of public record; and that the local newspapers extensively reported the substance of Johnson's testimony prior to Wright's trial. The court also found that the evidence was not material. See Wright v. State, 593 So.2d at 115-16. . . .

In light of this and the fact that the State is not required to furnish a defendant with exculpatory evidence that is fully available through the exercise of due diligence, we conclude there was no Brady violation. See United States v. McMahon, 715 F.2d 498, 501 (11^th Cir. 1983).

Assuming arguendo that the Johnson testimony was suppressed by the State, Wright argues that this evidence was material because it showed that another individual may have committed the crime and this evidence would have raised serious questions about the credibility of Craig and McQueen's testimony. Thus, the evidence could have changed the outcome of the trial. There is one fatal flaw with Wright's argument. The Johnson testimony would not have changed the outcome of the trial because it did nothing to indicate that Wright was not present at the crime scene, and it did nothing to contradict Craig and McQueen's testimony that Wright was the triggerman. Additionally, in contrast to Wright's argument, the Johnson testimony would not have impeached Craig and McQueen because they were each impeached on several grounds and neither one ever mentioned that Roberts was a participant in the crime. Moreover, Wright never mentioned Roberts to his ex-girlfriend Doris Lambert when he implicated McQueen, Craig, Tinsley, and himself in the murders. The defense would have had a remote chance of convincing the jury that Roberts was involved in the murders. Accordingly, the Johnson testimony had no bearing on the essential facts that resulted in Wright's conviction, and therefore, the testimony could not have changed the outcome of the trial. In sum, we conclude that the Johnson testimony was neither suppressed nor material, and therefore, there was no Brady violation.

2. The remaining items of evidence

The district court concluded that the remaining items of allegedly exculpatory evidence - the Stroh affidavit, the Lambert evidence, and the McQueen agreement - were all procedurally defaulted because the petitioner failed to raise these claims in the state court. The failure to raise these claims to the state courts is a procedural default that bars federal habeas review of the claims. See Wainwright v. Sykes, 433 U.S. 72 (1977). A federal court will consider the claims, however, if the petitioner can show "cause and prejudice" for his procedural default or that failure to consider his claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). The district court evaluated both exceptions to the doctrine of procedural default and found that cause existed, but that Wright had not proved prejudice to overcome the procedural default. The district court also determined that the fundamental miscarriage of justice exception was not applicable. . . .

a. The Stroh affidavit.

This affidavit declares that Roberts's girlfriend stated to Detective Stroh that a handgun belonging to Roberts was the weapon that was used to kill the Greens during the robbery. Even if the State had disclosed the affidavit to the defense, it would not have been admissible at trial because it is hearsay. The defense easily could have called Roberts's girlfriend to testify at trial regarding her alleged statement to Detective Stroh.

Inadmissible evidence may be material if the evidence would have led to admissible evidence. See Spaziano v. Singletary, 36 F.3d 1028, 1044 (11^th Cir. 1994). Wright has failed to show that the affidavit would have led to admissible evidence because he did not call Roberts's girlfriend as a witness at the federal evidentiary hearing. Therefore, it is unknown exactly what she would say, and accordingly, Wright has failed to prove that what she would say is material. A court cannot speculate as to what evidence the defense might have found if the information had been disclosed. Wood, 116 S.Ct. at 11. The crucial inquiry is whether there is evidence in the record that establishes a "reasonable probability" that the production of the inadmissible evidence would have resulted in a different outcome at trial. Id. at 10. There is no such evidence in this record. Since the evidence is not likely to have changed the outcome of his trial, Wright has not shown prejudice to overcome his procedural default.

b. The Lambert evidence.

The District Attorney's office had Doris Lambert's mental health records but did not give them to Wright's lawyers. The district court found that this evidence was not admissible under Alabama law, and accordingly, was not material. Wright argues that the evidence was material because the case against him centered upon Doris Lambert's credibility and the evidence of her mental health and drug use could have been used at trial to impeach her credibility.

Under Alabama law, Lambert's mental health records and reported drug use would not have been admissible at Wright's trial. In Alabama, a prosecutor or defense attorney cannot use evidence of drug use to impeach a witness unless it is shown that the drugs affect the reliability of the witness's testimony. See Leonard v. State, 551 So.2d 1143, 1147 (Ala. Crim. App. 1989). Moreover, "[t]he credibility of a witness may be impeached by proving mental derangement or insanity but only if such mental incapacity exists at the time the witness takes the stand to testify or at the time he observed the facts to which he has testified on direct." Charles Gamble, McElroy's Alabama Evidence § 141.01(1) (3d ed. 1977).

There is no evidence that Lambert was using drugs when she testified at Wright's trial or when Wright told her that he killed the Greens. Nor is there any evidence that Lambert was suffering any mental incapacity when she testified or when Wright confessed to her. The district court found evidence that Lambert suffered from depression several years before the Greens's murders, but it found no evidence that Lambert suffered from depression during trial or when Wright confessed to her. Notwithstanding the fact that Lambert admitted to using drugs occasionally between Wright's confession and trial, the district court found no evidence that her occasional drug use impaired her faculties. These findings are not clearly erroneous.

Moreover, even if the Lambert evidence had been admitted at trial, the evidence would have had little impact on the jury's perception of her credibility. Mr. Pennington cross-examined Lambert and elicited from her that she had been convicted of shoplifting and that she was Wright's former girlfriend and had a son Wright fathered. See Trial Transcript, Doc. 12, Vol. 1, p. 174-75. Mr. Pennington also questioned Lambert's mother who stated that she told her daughter not to come to trial and tell a "bunch of lies." Id., Vol. 2, p. 291. Thus, Mr. Pennington was able to call Lambert's credibility into question during his examination. Moreover, this evidence does not rise to the level of "mental derangement or insanity," nor does it establish the type of drug problem that produces an impaired mind. See McElroy's Alabama Evidence; Leonard, 551 So.2d at 1147. In short, the Lambert evidence would not have been admissible at Wright's trial, and even if it had been admitted, it would have had little bearing on the credibility of her testimony. Accordingly, we conclude that this evidence is not material.
 

 
Tarver argues that his trial counsel was constitutionally ineffective for failing to raise a Batson-type objection at trial. We have said, however, that a lawyer who failed to make a Batson challenge before Batson did not provide ineffective assistance of counsel. See Pitts, 923 F.2d at 1574; see also Poole v. United States, 832 F.2d 561, 565 (11th Cir. 1987).

Tarver says three facts distinguish his case from Pitts and Poole, but we disagree. First, Tarver says his trial counsel knew of "the systematic use by the prosecutor of [per]emptories to exclude blacks from the jury." Our examination of the record, however, shows that Tarver's trial counsel never said that blacks were struck "routinely" because of their race alone. During state collateral proceedings, Tarver's trial counsel's testimony was that "on occasion," when he had been a prosecutor, he had struck black veniremembers based on race alone.(4)

Second, Tarver says his trial counsel could give no tactical reason for his failure to object to the discriminatory use of peremptory challenges. This argument misses the point: to be effective, Tarver's lawyer did not need a reason because he was not obligated to have anticipated the Batson decision. See Pitts, 923 F.2d at 1573. Tarver might complain that his lawyer was unimaginative, but a lack of creativity does not constitute ineffective assistance. See id. at 1574. Futility also justifies Tarver's lawyer's refusal to object because no evidence in this case would have supported a Swain violation:(5) the only valid objection available at that time. See Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir. 1987); see also Reece v. United States, 119 F.3d 1462, 1465 (11th Cir. 1997) (lawyer's failure to challenge kind of methamphetamine for sentencing was not prejudicial when evidence shows court used correct kind of methamphetamine).

Third, Tarver presents the testimony of two lawyers that lawyers in the community were at the pertinent time routinely raising Batson-type objections at trial. The Rule 20 court in this case, however, found that making a Batson-type challenge before Batson was "not the normal generalized practice." And, Alabama courts have said that failure to make a Batson challenge before Batson is not ineffective. See Horsley v. State, 527 So.2d 1355, 1357-58 (Ala. Crim. App. 1988).

Tarver says his trial lawyer was constitutionally ineffective by failing to prepare adequately for the sentencing phase. Tarver says his trial counsel should have devoted more time to preparation and should have presented additional witnesses in the penalty phase of the trial. We think, however, that Tarver's trial lawyer provided the assistance of counsel required by the Constitution.

Tarver's trial lawyer testified that he consulted with a lawyer at the Southern Poverty Law Center about how to proceed with Tarver's case and concluded that focusing on Tarver's acquittal of the capital offense was the best approach to defending Tarver. He met with Tarver almost daily from the time he was appointed until the trial. And he testified that either he, his co-counsel, or an investigator interviewed every witness Tarver thought would be helpful as mitigation witnesses, including Tarver's mother, grandmother, aunt, cousin, girlfriends, former employers, and members of the community. Tarver's lawyer said he presented every witness he thought would be helpful. Tarver's lawyer did present the testimony of Tarver's Uncle. Tarver's uncle said they were like brothers, that Tarver was no troublemaker, and had no criminal "bent."(6) Tarver's lawyer also presented an expert to testify about Tarver's successful polygraph test result, a test in which Tarver denied killing Kite.

Tarver's lawyer's preparation for sentencing was, at least, within the broad range of reasonable performance we have recognized in other cases. See, e.g., Waters v. Thomas, 46 F.3d 1506, 1510-11 (11th Cir. 1995) (en banc) (holding no ineffectiveness shown under the circumstances and saying we "have held counsel's performance to be constitutionally sufficient when no mitigating evidence at all was introduced"). Dobbs v. Kemp, 790 F.2d 1499 (11th Cir. 1986) (no ineffective assistance for failure to present mitigating evidence because counsel feared damaging counter evidence); Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983) (no ineffective assistance for talking only to defendant and defendant's mother and presenting no mitigating evidence). Tarver's lawyer's effectiveness at the sentencing stage is strongly evidenced by the jury's decision to recommend not death, but life without parole. We think Tarver's trial lawyer's efforts toward sentencing are constitutionally adequate. See Burger v. Kemp, 107 S. Ct. 3114, 3126 (1987) (lawyer not required to investigate and present all available mitigating evidence to be reasonable).

Tarver relies on the fact that Tarver's lawyer only spent four hours on Tarver's case between the conviction and sentencing to argue that Tarver's lawyer did not adequately prepare for the sentencing stage. Like the district court, we believe this argument is "inaccurate and misleading," because of the overlap in preparation for the sentencing and  guilt/innocence stages of the trial. For example, Tarver's lawyer's meeting with the potential witnesses took place before sentencing.

The record shows that Tarver's lawyer tried to create sufficient residual doubt about Tarver's guilt during trial and sentencing to add, in reality, another mitigating factor to the jury's sentencing deliberations. That the creation of lingering doubt was part of the strategy of Tarver's lawyer is evidenced by the polygraph examiner's testimony at sentencing and Tarver's lawyer's closing sentencing argument. The polygraph examiner testified that Tarver did not lie when asked, in different ways, if he killed Hugh Kite.(7) During Tarver's lawyer's closing argument at the sentencing hearing he said repeatedly that he did not want to "challenge the verdict." But he -- without drawing objection -- added:
 

I would hope that the evidence presented both in the case-in-chief last week and anything that you have heard today might be sufficient to raise in your mind at least a shadow of a doubt about the defendant's guilt, and if that doubt exists in your mind, I would pray that you would resolve it in favor of the defendant.


A lawyer's time and effort in preparing to defend his client in the guilt phase of a capital case continues to count at the sentencing phase. Creating lingering doubt has been recognized as an effective strategy for avoiding the death penalty. We have written about it. See, e.g., Stewart v. Dugger, 877 F.2d 851, 855-56 (11th Cir. 1989). In addition, a comprehensive study on the opinions of jurors in capital cases concluded:

"Residual doubt" over the defendant's guilt is the most powerful "mitigating" fact.--[The study] suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do, all else being equal, is to raise doubt about his guilt.

Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum. L. Rev. 1538, 1563 (1998) (footnotes omitted); see William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1, 28 (1988) ("[t]he existence of some degree of doubt about the guilt of the accused was the most often recurring explanatory factor in the life recommendation cases studied."); see also Jennifer Treadway, Note, 'Residual Doubt' in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215 (1992). Furthermore, the American Law Institute, in a proposed model penal code, similarly recognized the importance of residual doubt in sentencing by including residual doubt as a mitigating circumstance. So, the efforts of Tarver's lawyer, during trial and sentencing, to create doubt about Tarver's guilt may not only have represented an adequate performance, but evidenced the most effective performance in defense to the death penalty.

We are also unpersuaded by the admission (during state collateral proceedings) of Tarver's lawyer that he had not prepared adequately for sentencing. See Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (admissions of deficient performance are not significant). As noted by the Rule 20 court and the District Court, Tarver's lawyer's decision to focus on an acquittal at the expense of sentencing was "a deliberate decision." State v. Tarver, 629 So.2d 14, 21 (Ala. Crim. App. 1993) (quoting Tarver's lawyer). The decision to focus on acquittal of capital murder was not unreasonable.(8) Despite overwhelming evidence that Tarver or his associate, Richardson, actually killed Hugh Kite, very little evidence made Tarver a better candidate than Richardson to be found to be the actual killer. See Tarver v. State, 500 So.2d 1232, 1235-41 (Ala. Crim. App. 1986) (describing evidence against Tarver); see also Stewart, 877 F.2d at 855-56 (lawyer's decision to focus on innocence, even when evidence of guilt was great, rather than other forms of mitigation did not make counsel constitutionally ineffective).

991574P.pdf  Roberts v.  Bowersox Eighth Circuit denies relief in stay proceedings concerning a successive habeas petition, holding:

Roberts wants to raise a claim of actual innocence in a second federal habeas proceeding. Roberts contends he cannot be executed consistent with the Eighth and Fourteenth Amendments because he is an innocent man who was erroneously convicted. See Herrera v. Collins, 506 U.S. 390 (1993). Roberts challenges the reliability of trial testimony by eyewitnesses who said Roberts held the guard while another man stabbed him. Roberts points out that the eyewitnesses did not describe or mention Roberts in their initial statements to officials, and Roberts’s trial attorney only cross-examined one of the eyewitnesses about this fact at trial. Roberts also says no physical evidence ties him to the guard’s death, and Roberts passed a February 1999 polygraph test when denying his involvement in the murder.

A court of appeals may authorize a second federal habeas application only if the application makes a prima facie showing that the application satisfies the requirements of 28 U.S.C. § 2244(b). See id. § 2244(b)(3)(C). According to § 2244 (b), “[a] claim presented in a second . . . habeas corpus application . . . that was presented in a prior application shall be dismissed.” Id. § 2244(b)(1). Claims that were not presented in an applicant’s first habeas petition must also be dismissed unless the applicant makes one of two showings. First, leave to file a second habeas petition may be granted if the applicant shows his new “claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2244(b)(2)(A). Second, an applicant can obtain leave to file a second habeas petition if he shows “the factual predicate for the [new] claim could not have been discovered previously through the exercise of due diligence,” id. § 2244(b)(2)(B)(i), and “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonablefactfinder would have found the applicant guilty of the underlying offense,” id. § 2244(b)(2)(B)(ii).

Roberts’s application does not show it satisfies the requirements of 28 U.S.C. § 2244(b). To the extent Roberts’s application reasserts constitutional violations already raised in his first habeas proceeding, § 2244(b)(1) prevents their reconsideration in a second habeas action. Roberts argues this absolute bar is an unconstitutional suspension of the writ of habeas corpus, and he disagrees with the Eighth Circuit’s rejection of this argument in Denton v. Norris, 104 F.3d 166, 167 (8th Cir. 1997), and later cases. We cannot as a panel overturn other panels’ decisions, however. To the extent Roberts may not have raised his claim of actual innocence before, he cannot satisfy the requirements of § 2244(b)(2), and does not attempt to do so. Roberts does not rely on a new rule of constitutional law, and he has not shown he could not have discovered the factual basis for the claim before through the exercise of due diligence, or that the facts underlying the claim would be enough to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of capital murder.

Because Roberts’s application for permission to file a second habeas petition does not meet the requirements of § 2244(b), we deny his application. We also deny his accompanying request to stay his execution “‘because there are no substantial grounds on which relief might be granted by this court.’” McDonald v. Bowersox, 125 F.3d 1183, 1186 (8th Cir. 1997) (quoting Wainwright v. Norris, 121 F.3d 339, 341 (8th Cir. 1997)).

981653P.pdf  Smith v.  Rogerson Eighth Circuit holds that Counsel did not render ineffective assistance when he advised Smith to make a statement to the police concerning his role in the offense.

Longbehn v. USA Seventh Circuit dismisses an end run around the successive habeas petition prohibition, holding the action properly belongs in the Eighth Circuit Court of Appeals for authorization of a successive habeas petition.

In re Goddard Fourth Circuit holds petition is not successive where a previously granted  § 2255 motion only reinstated the right to appeal

962699P.pdf Barrett v.  Acevedo Eighth Circuit holds  reverses grant of habeas corpus relief holding that the AEDPA did not apply to habeas petition, but that  hearsay statement did not violate Confrontation Clause and error harmless beyond a reasonable doubt; admission of journal did not implicate First or Fifth Amendments. Dissent would hold hearsay testimony violated Confrontation Clause.

Dunn v. Singletary Eleventh Circuit holds that the nature of the proceedings and not an errant note by the clerk as to the disposal of a prior habeas case is dispositive as to whether a given petition is or is not a successive petition.

Mayabb v. Johnson Fifth Circuit, in this non-capital case, denies relief on claims of "(1) erroneous jury instructions on the charge of murder; (2) ineffective assistance of counsel during the trial and subsequent appeal of his conviction; (3) exclusion of polygraph evidence; and (4) retroactive application of an amendment to Texas's parole laws"

Evans v. Ball Fifth Circuit denies relief on claims "alleging common law malicious prosecution and constitutional violations pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)."

Bell v. Blatter Sixth Circuit en banc, and in a decision requiring graph paper to figure out the holding,  vacates a district court's grant of summary judgment on plaintiff Bell's retaliation claim against one defendant  and the grant of summary judgment on plaintiff X's retaliation and Eighth Amendment claims against four othre defendants.

Hall v. Stone Seventh Circuit holds warden sanctionable for failing to pay fees from inmate account after a court order to show cause.
 
 
 

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