Capital Defense Weekly
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This  week offers two capital cases, both losses.  In Lamb v. Johnson the Fifth Circuit found no ineffectiveness despite the failure to investigate potential mitigation witnesses.  The Eighth Circuit in Walls v. Bowersox denies relief in a last minute stay proceeding holding a motion to recall  mandate must be treated as a successive habeas petition. 

A Nebraska trial court has vacated the death sentence for Clarence Victor under a 1998 state law barring execution of the mentally retarded. Jerry Simpson had his death sentence vacated in January on the same grounds.  The Attorney General is expected to appeal.  More at http://headlines.yahoo.com/Full_Coverage/US/Death_Penalty/

Lamb submits that he was denied effective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence at the sentencing phase of the trial. The ultimate determination of whether counsel was constitutionally effective is a mixed question of law and fact. See Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997), cert. denied, 118 S. Ct. 1567 (1998). We review ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. See Boyle v. Johnson, 93 F.3d 180, 187 (5^th Cir. 1996). Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim. See Carter, 131 F.3d at 463. 

A 
At the punishment portion of the trial, Lamb's attorneys did not offer mitigating evidence in the form of family and friends coming to ask the jury to spare his life. Instead, his attorneys chose to make this plea through jury argument.⁽²⁾ In his petition for a writ of habeas corpus, Lamb argues that this decision constituted ineffective assistance of counsel. He points out that his attorneys' investigation into these potential mitigation witnesses was insufficient at best.⁽³⁾ He then submits several affidavits from potential mitigation witnesses. These affidavits, according to Lamb, demonstrate that there were many witnesses who would have come to Texas to testify regarding his non-violent character in the past. As such, Lamb contends that his trial counsel's failure to investigate this line of defense, coupled with the affidavits detailing the nature of these witnesses' testimony, present sufficient grounds for this court to issue a COA.

Jerry Davis, one of Lamb's trial counsel, testified before the magistrate judge that he made a strategic decision not to put mitigating witnesses on the stand to testify on Lamb's behalf. Davis explained that he believed a plea for mercy would come better from his counsel than from friends and family whom Lamb had not seen or dealt with in several years. Davis further posited that, in his opinion, the jury would have looked at such testimony very skeptically considering (1) the brutal nature of the crime he was on trial for in Texas; (2) the crime he had committed in Florida; (3) the continuous criminal history of being in trouble with the law since he was a juvenile; and (4) his previous conviction in Arkansas. Finally, Davis explained that he had believed that a strategy of mitigating witnesses might backfire as it might harden the jury against Lamb and invite prosecutorial attack. Davis pointed out that the witnesses would have been vulnerable to "have you heard" types of questions by the prosecution, thus putting before the jury Lamb's non-violent but nonetheless criminal juvenile record. All in all, Davis testified that he made a strategic decision not to introduce mitigating witnesses.

Informed strategic decisions of counsel are given a heavy measure of deference and will not be second guessed. See Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir.), cert. denied, 118 S. Ct. 361 (1997); Boyle, 93 F.3d at 187. Moreover, "a tactical decision not to pursue and present potential mitigating evidence on the grounds that it is double-edged in nature is objectively reasonable, and therefore does not amount to deficient performance." See Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997) (citing Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994)), cert. denied, 118 S. Ct. 1061 (1998). Viewing Lamb's trial counsels' strategic decision through the lens of Rector and Mann makes it apparent that Lamb cannot prevail on his Strickland claim.

In order to get around Davis' repeated testimony that the decision not to use witnesses from California was made in order to keep evidence of Lamb's juvenile record from the jury, Lamb argues that this decision is not entitled to deference because it was uninformed and was made without adequate investigation. He cites Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986), in which that court affirmed the district court's grant of the writ. The court stated that the record supported the district court's conclusion that counsel's failure to investigate was deficient. His counsel admitted at the evidentiary hearing that he had made little effort to produce mitigating evidence because the defendant stated, in effect, that he did not want the jury's tears. See 796 F.2d at 1324. However, Thomas is distinguishable from the instant case because there was no testimony in Thomas that the counsel's decision was strategic in any way. There was no evidence of a criminal history which counsel wished to avoid opening up through cross-examination of character witnesses.
 
 
 

B
Lamb also argues that his trial counsels' explanation - that they did not want to use mitigating witnesses because they could have been impeached with "have you heard" questions - was based on an erroneous understanding of the law. He contends that, under Texas law, such questions are only allowed as to a reputation witness and would not be admissible to impeach witnesses who stated a personal opinion as to the accused's background. See Rutledge v. State, 749 S.W.2d 50 (Tex. Crim. App. 1988).

Rutledge does state that "have you heard" questions are properly utilized to impeach a witness who claims a familiarity with hearsay as to the defendant's reputation, and that a witness who testifies to his personal knowledge of the defendant's character cannot be impeached with "have you heard" questions. See 749 S.W.2d at 53. Lamb's proposed witnesses were not reputation witnesses. According to the proposed content of their testimony, they would be testifying about their personal knowledge of Lamb's lack of violence. Lamb therefore is correct that these witnesses would not have been subject to "have you heard" questions.

However, his attorneys were not incorrect in their opinion that the mitigation witnesses could have been asked about their personal knowledge of Lamb's juvenile record. In Livingston v. Johnson, 107 F.3d 297 (5^th Cir.), cert. denied, 118 S. Ct. 204 (1997), counsel decided against calling several suggested witnesses because, as counsel explained, anyone who knew the defendant well enough to testify to his good character would also know about his prior bad acts. See id. at 308. We agreed that this was plausible trial strategy. See id. In McCoy v. Lynaugh, 874 F.2d 954 (5^th Cir. 1989), counsel did not call the proposed punishment witnesses because counsel was concerned about opening the door to allow the State to inquire into instances of prior bad acts of the defendant. See id. at 964. We concluded that counsel's actions did not fall outside the wide range of professional assistance. See id.

Lamb's trial counsel may have been incorrect in their use of the "have you heard" terminology when explaining why they did not introduce mitigating witnesses, but they were correct that any witnesses who were called to testify about their personal knowledge of Lamb's character could also be cross-examined about their personal knowledge of his juvenile criminal record. As Davis explained in his testimony before the magistrate judge:

We felt like that the jury would view this type of evidence, this juvenile problems in their reasoning that - well, this guy's been in trouble for years; he started out as a juvenile offender, a burglar; now's he's graduated up to robbing liquor stores; burglaries, and now, capital murder; and he's had every break. This would, in our opinion, impress the jury that this guy's had a chance. He has flunked the system. We didn't want to call people like his momma or his grandmother or the police chief in California or a juvenile probation officer or a neighbor that had known that John had spent probably quite a bit of time in the criminal justice system - the juvenile criminal justice system. We didn't think that would be impressive at all or mitigating.
 

The state trial court found that Davis's strategy was to keep out aggravating circumstances such as Lamb's juvenile record and any proof that he had been in trouble all of his life as could be shown by the California witnesses. The state court also found that Joe Weis, Lamb's other trial attorney, agreed that evidence of Lamb's juvenile record was not in his best interest. We find that Lamb cannot make a substantial showing that his trial counsel performed deficiently under Strickland.

C
In the interest of thoroughness in this death penalty case, we address the prejudice prong of the ineffective assistance of counsel test as well. In order to satisfy the prejudice prong, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 695. The petitioner must show that, absent counsel's deficiencies, there is a reasonable probability that the jury would not have sentenced him to death. Davis, 158 F.3d at 812. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The mere possibility of a different outcome is not sufficient to prevail on the prejudice prong. See Ransom, 126 F.3d at 723. Lamb must show evidence of sufficient quality and force to raise a reasonable probability that, had the evidence been presented to the jury, a life sentence would have resulted. See id. More particularly, when a defendant alleges that his counsel's failure to investigate prevented his counsel from making an informed tactical choice, he must show that knowledge of the uninvestigated evidence would have altered his counsel's decision, and that the bases underlying his counsel's tactical choice to pursue or forego a particular course would have been invalidated. See Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982).

Even if we were to assume that his trial counsel failed to make an adequate investigation, Lamb has failed to show that counsel would have made a different decision about trial strategy if they had investigated and amassed the information contained in the affidavits of the proposed witnesses. Weis specifically testified that he would have considered the evidence but that he was not sure if he would have made a different strategic decision, again referring to the possibility of opening the door to the juvenile record. In the face of the proposed evidence, Davis never wavered from his opinion that the proposed evidence of a nonviolent history would have been more harmful than helpful. Additionally, Weis expressed the opinion that he did not believe the proposed testimony would have affected the outcome because of the testimony from the female gas station attendant about the robbery and shooting in Florida. He did not believe that any of the testimony in the affidavits could overcome that kind of devastating evidence. 

The state trial court concluded that even if counsel's actions were in error, the result of the proceedings would not have been different. Lamb has not shown that this conclusion involved an "unreasonable application" of clearly established federal law as determined by the Supreme Court. See § 2254(d)(1); Davis, 158 F.3d at 812. Reasonable jurists considering this claim would not be of "one view" that the state court's judgment was wrong. See Williams v. Cain, 125 F.3d 269, 279-80 (5th Cir. 1997), cert. denied, 119 S. Ct. 144 (1998).

In Williams, the state court found that the defendant was not prejudiced by counsel's failure to present the testimony of family and friends regarding the defendant's troubled family history. The evidence would have opened the door for cross-examination regarding the defendant's drug and alcohol abuse, expulsion from school, and discharge from his job. The evidence would have had little mitigating effect against the evidence of the murder at issue in that case. See id. Similarly, Lamb cannot show that his proposed mitigating evidence of a non-violent history and troubled family life raises more than a mere possibility of a different outcome, and not the required "reasonable probability." Ransom, 126 F.3d at 723. Given Lamb's confession to the Texas murder, the subsequent robbery and shooting of the female gas station attendant in Florida five days later, and especially given his statement to the authorities taking him into custody in Florida that he was glad they had "finally caught [him] before [he] killed somebody else," we cannot say that there is a reasonable probability of a different outcome. See Carter, 131 F.3d at 465 (holding that given the defendant's confession to the murder of a service station attendant during a robbery, the court could not conclude that the testimony of character witnesses as to the defendant's reputation as a good and peaceful person would have sufficiently impressed the jury to avoid the death sentence).
 

 
Mr. Walls earlier challenged his conviction in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As a part of this challenge, he raised the issue of the effectiveness of his trial counsel as measured by the standards announced in Strickland v. Washington, 466 U.S. 668 (1984) and Lockhart v. Fretwell, 506 U.S. 364 (1993). The district court found that counsel was ineffective at the penalty stage of the state court trial and granted the writ. Upon review, this court reversed that holding and reinstated the death penalty. See Walls v. Bowersox, 151 F.3d 827, 837 (8th Cir. 1998), cert. denied, 119 S. Ct. 1468 (1999).

Mr. Walls has now filed motions asking this court to recall its mandate and to stay his execution. We deny both motions.

As asserted by the state, we have held that a motion to recall the mandate is the functional equivalent of a second or successive petition for habeas corpus. See Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir. 1997). And, since we fully considered in our earlier opinion the issue of prejudice under the second test in Strickland, now raised here, the motion to recall constitutes a successive petition. That being so, we are very likely precluded by 28 U.S.C. § 2244(b) from reviewing the subject matter of the claim. Nonetheless, we choose to briefly discuss the merits of Mr. Walls's present contentions. Mr. Walls bases his requests on the grant of certiorari by the Supreme Court in Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert. granted, 119 S. Ct. 1355 (1999). The question presented in Williams deals with the so called "windfall" analysis articulated in Fretwell. 

In Fretwell, the Supreme Court, in analyzing the contours of the term "prejudice" within the meaning of Strickland, held that the granting of a writ based on failure of counsel to mount an objection based upon case law in effect at the time of the trial but later overruled would create a "windfall" to which Fretwell was not entitled. See Fretwell, 506 U.S. at 366. The Supreme Court then enunciated a test based upon the fundamental fairness and reliability of the trial. See id. at 372. 

Walls contends that the question presented in Williams dealing with a purported reformulation of the Strickland standard by the Fourth Circuit in application of the Fretwell windfall ruling applies to his case as well. We disagree.

ur holding was based upon a straight forward application of Strickland. Most importantly we found, and properly so, that trial counsel functioned "as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. As a result, we had no need to reach, and have no need to reach today, the issue of prejudice, the second part of the two-part test established by Strickland. And, even if we were to reach the issue of prejudice as we did in the alternative in our earlier opinion, our analysis clearly passes muster under a strict application of Strickland without any so called "reformulation" to accommodate a Fretwell test. 

Finally, we note that Mr. Walls's petition for certiorari seeking review of our 1998 opinion was denied by the Supreme Court on April 19, 1999, after the April 5, 1999, grant of certiorari in Williams. If we per chance misapprehend the importance of these dates and acts insofar as Mr. Walls's current contentions are concerned, there is yet sufficient time for Mr. Walls to again seek relief in the Supreme Court. 

Accordingly, we deny the motion to recall the mandate and given that holding we see no reason to stay the execution. That motion is denied as well.

Mercadel's v. Cain (Fifth Circuit)  Failure to exhaust,  where the state does not affirmatively waive exhaustion, requires the petition to be dismissed where this Ander's claim (ineffective assistance of appellate counsel) can not be readily rejected pursuant to  § 2254(b)(2).

982175P.pdf  Greiman v. Thalacker (8th Cir.)  Trial counsel was not ineffective in failing to object to state's calling of state's main witness regarding Greiman's insanity defense because no reasonable jury would have believed Greiman's insanity defense. 
 
 

Perez v. Wisconsin Dep't of Corrections (7th Cir.) Where a suit lies under the PLRA and the remedy sought is both prospective and for monetary damages,  exhaustion of state remedies, even if those state remedies do not allow for monetary damages, is required.

Sloan v. Lesza (7th Cir.) Holding that the appellant, a frivolous "frequent flyer" under the PLRA,  is barred  from filing any additional suit, save for a habeas corpus action, until he has paid all fees and penalties owed to the courts for this and prior actions deemed to have been without merit for PLRA purposes.
 
 

On June 15th the  Pennsylvania Center for Legal Education, Advocacy and Defense Assistance closed its doors despite its ongoing representation of over seventy (70) clients.  Since its inception CLEADA secured 164 stays of execution, 12 death sentence vacateurs and had no client involuntarily executed;  overall nothing short of a tremendous & inspiring success for Rob Dunham & Co.  Details of what, if anything, will replace the CLEADA, at least on the state court level, is unclear at this point (Pennsylvanian still has no state wide public defender system even for death row inmates).

The Loyola Resource Center has moved as of June 21, 1999.   The new address and phones are:

    7100 St. Charles Ave.
    New Orleans, LA. 70118

    Voice   - (504) 864-0700
    FAX    - (504) 864-0780
 
 

If you happen to see any case not listed here that should be, please drop me a line at capdefense@geocities.com.

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In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state. Dedicated to the men and women, attorneys, paralegals, investigators, legal support staff and jail house attorneys who fight daily for the most basic of human rights, the right to life.