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This week offers no capital case
decisions but stunning news out of the Supreme Court that could well effect
how we litigate every capital case. The Supreme Court has asked for
the Solicitor General's opinion in Domingues v. Nevada over the applicability
of International Covenant on Civil and Political Rights, the reservation
made to that treaty, and the juvenile death penalty. In Focus this
week examines the organization, Rights International, that helped draft
the model brief in that case.
In other Supreme Court news, the
Court examined exhaustion once again this week. In O'Sullivan
v. Boerckel the Supreme Court held that exhaustion is not met where
a petitioner does not pursue a discretionary appeal to the state supreme
court even where that appellate court strongly discourages such discretionary
appeals in all but the most extraordinary cases.
Capital
Cases
The U.S. Supreme Court has asked
the Clinton Administration for its views on the execution of juvenile offenders
in light of an international treaty which forbids such executions. The
U.S. has signed and ratified the International Covenant on Civil and Political
Rights, but filed an exception so that states could continue to execute
juvenile offenders. The Nevada case of Domingues v. Nevada (No.98-8327)
has challenged the legality of that reservation. Michael Domingues was
16 years old at the time of his crime. More details as they emerge. (DPIC)
United
States Supreme Court
O'Sullivan
v. Boerckel The United States Supreme Court holds to meet the
exhaustion requirements of federal habeas corpus a Petitioner must exhaust
all remedies, including discretionary appeals, in a state court forum before
proceeding to have those claims adjudicated in federal court. From
the syllabus
After respondent Boerckel’s state convictions were affirmed by the
Illinois Appellate Court and the Illinois Supreme Court denied his petition
for leave to appeal, he filed a federal habeas petition raising six grounds
for relief. In denying the petition, the District Court found, among other
things, that Boerckel had procedurally defaulted his first three claims
by failing to include them in his petition to the Illinois Supreme Court.
The Seventh Circuit reversed and remanded, concluding that Boerckel had
not procedurally defaulted those claims because he was not required to
present them in a petition for discretionary review to the Illinois Supreme
Court in order to satisfy 28
U.S.C. § 2254(b)(1), (c), under which federal habeas relief is
available to state prisoners only after they have exhausted their claims
in state court.
Held: In order to satisfy the exhaustion requirement, a
state prisoner must present his claims to a state supreme court in a petition
for discretionary review when that review is part of the State’s ordinary
appellate review procedure. As a matter of comity, §2254(c)–which
provides that a habeas petitioner “shall not be deemed to have exhausted
[state court] remedies . . . if he has the right under [state] law . .
. to raise, by any available procedure, the question presented”–requires
that state prisoners give state courts a full and fair opportunity to resolve
federal constitutional claims before those claims are presented to the
federal courts. See, e.g., Castille v. Peoples, 489
U.S. 346, 351. State prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process. Here, Illinois’s
established, normal appellate review procedure is a two-tiered system:
Most criminal appeals are heard first by the intermediate appellate courts,
and a party may petition for leave to appeal a decision by the Appellate
Court to the Illinois Supreme Court. Whether to grant such a petition is
left to the sound discretion of the Illinois Supreme Court, Ill. Sup. Ct.
Rule 315(a). Although a state prisoner has no right to review in
the Illinois Supreme Court, he does have a “right . . . to raise” his claims
before that court. That is all §2254(c) requires. Boerckel’s argument
that Rule 315(a) discourages the filing of discretionary petitions raising
routine allegations of error, and instead directs litigants to present
to the Supreme Court only those claims that present questions of broad
significance, is rejected. Boerckel’s related argument, that a rule requiring
state prisoners to file petitions for review with that court offends comity
by inundating the Illinois Supreme Court with countless unwanted petitions
presenting routine allegations of error, is also rejected. There is nothing
in the exhaustion doctrine requiring federal courts to ignore a state law
or rule providing that a procedure is unavailable, but the creation of
a discretionary review system does not, without more, make review in the
Illinois Supreme Court unavailable. As the time for filing a petition for
leave to appeal to the Illinois Supreme Court has long past, Boerckel’s
failure to present three of his federal habeas claims to that court in
a timely fashion has resulted in a procedural default of those claims.
Pp. 4—10.
135 F.3d 1194, reversed.
O’Connor, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ.,
joined. Souter, J., filed a concurring opinion. Stevens, J., filed a dissenting
opinion, in which Ginsburg and Breyer, JJ., joined. Breyer, J., filed a
dissenting opinion, in which Stevens and Ginsburg, JJ., joined.
Habeas
Cases
Lucas
v. O'Dea Sixth Circuit grants relief on murder charges in this non-capital
case due fatal variance in the indictment and evidence adduced at trial
(A variance occurs when the charging terms of an indictment are left unaltered,
but the evidence offered at trial proves facts materially different from
those alleged in the indictment. The court however denies relief
on claims that (a) defense counsel was ineffective in failing to
object to the "persistent felony offender" sentence enhancement, and (b)
he was exposed to double jeopardy.
Caldwell
v. Russell Sixth Circuit denies habeas relief on claims relating to
prosecutorial misconduct in its closing remarks, destruction of evidence
(creating a rule that bad faith needs to be shown relating to destruction
of evidence), and holds procedurally defaulted arguments relating to sufficiency
of the evidence.
Restrepo
v. Kelly Second Circuit, in a solid discussion of the issue,
holds that cause and prejudice has been met for procedural default and
remands for a hearing on the issue of whether petitioner was denied effective
assistance of counsel by counsel's failure to file a notice of appeal.
971390P.pdf
Ellis v. Norris Eighth Circuit remands to permit plaintiff to delete
claims which were not exhausted.
982449P.pdf
Louisell v. Dept. of Corrections Eighth Circuit holds jury instruction
on self-defense and justification were not erroneous; claims of prosecutorial
misconduct rejected.
Prisoner's
Rights/Governmental Misconduct Cases
983389P.pdf
Hedges v. Poletis Eighth Circuit holds defendant was entitled to
qualified immunity for his role in plaintiff's involuntary commitment.
In
Depth
This week, in light of the Supreme
Court's action in Domingues v. Nevada (No.98-8327), I would like to draw
attention to one group of lawyers actively engaged in challenging the death
penalty in the United States under international law, Rights International
http://www.rightsinternational.org/.
The Rights International website offers some fantastic resources for lawyers
interested in challenging the death penalty under international law. Rights
International model briefs were used, at least in part, in Domingues v.
Nevada (No.98-8327). I would strongly encourage a quick examination
of that website for all readers.
Topics covered include:
1.Death row phenomenon
2.Execution by gas asphyxiation
3.Execution by hanging
4.Execution by electrocution
5.Execution of persons who committed
crimes under age of 18
6.Failure to instruct jury to
not consider race of defendant and victim
7.Failure to inform alien defendant's
consulate
8.Failure to inform alien
defendant of his/her right to consult consulate
9.Execution for less than the
most serious crimes (viz., murder)
10.Defendant has no opportunity
to seek pardon or commutation
11.Extradition of defendant from
one state to another
There are several other due process-type
areas in which international law may help (e.g., presumption of innocence,
and jury/judge impartiality).
For those who are as befuddled
by international law as I am, Rights International also offers a research
and reference guide that is among the best self help materials around.
I am more then willing to help
anyone either get in touch with Rights International or forward samples
of how I have used International Law in some of my pleadings and briefs.
A discussion list for legal professionals
doing capital litigation is in the beginning stages. The hope of
the new list is to get some cross-pollination of ideas, as well as to give
those practitioner's who may not be at a public defender's office or similar
non-profit a forum to seek advice and bounce ideas around. The list is
private, and moderated only to try to weed out prosecutors and law enforcement.
Post message: capitaldefense@onelist.com
Subscribe: capitaldefense-subscribe@onelist.com
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List owner: capitaldefense-owner@onelist.com
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ISSN: 1523-6684 Volume
II, issue 17
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