Section 5: Criminal Procedure

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V. CRIMINAL LAW

In This Section:

New Case: 05-785 Carey v. Musladin

Synopsis and Question Presented p. 181

Dissent from Musladin v. Lamarque p. 191

"Justices to Rule on Photos at Trial" p. 196David G. Savage

"COURTS; Buttons of victim's family prompt new trial" p. 198Bob Egelko

"Ninth Circuit Will Not Review Ruling That Wearing of ButtonsDepicting Victim in Court Requires New Trial" p. 199

Kenneth Ofgang

"San Jose Man Fatally Shot; Lover's Spouse Arrested" p. 201Rodney Foo and Sandra Gonzales

New Case: 05-493 Ornaski v. Belmontes


"THE NATION; Voided Death Sentence to Be Reconsidered" p. 217David G. Savage

"Appeals Court Overturns Death Sentence" p. 219Henry Weinstein

"California; U.S. Appeals Court Voids Death Penalty in '81 Killing" p. 221Henry Weinstein

High court: Jury acted properly in killer's case" p. 224Hope Yen

New Case: 05-595 Whorton v. Bockting


"Nevadan's Supreme Court case could nullify countless convictions" p. 237

178

Martha Bellisle

"LV Case Could have National Impact" p. 239Cy Ryan

"Appeals court: Hearsay ruling is retroactive" p. 241David Kravets

"Justices Rule Against Statements Made Out of Court" p. 243Charles Lane

New Case: 05-547 Lopez v. Gonzales


New Case: 04-41378 Toledo-Flores v. United States


"High Court to Consider Deportation Cases" p. 251Associated Press

"Justices Decline Terror Case of a U.S. Citizen" p. 252Linda Greenhouse

"On The Docket: Lopez, Jose v. Gonzales, Alberto" p. 253Katherine Boyle

"Expanding powers of immigration authorities" p. 256Katherine Boyle

"Immigrants Facing Deportation Get Second Chance" p. 260Daniela Gerson

New Case: 05-9222 Burton v. Waddington


"Supreme Court to hear Washington case" p. 265Natalie Singer

"Blakely issues dominate court docket in 2005" p. 266Michael W Hoskins

New Case: 05-6551 Cunningham v. California

179


"State Sentencing Guidelines Draw U.S. Supreme Court Scrutiny" p. 279Bloomberg. com

New Case: 05-7142 Williams v. Overton


New Case: 05-7142 Walton v. Bouchard


New Case: 05-7058 Jones v. Bock


"Supreme Court to Hear Inmates' Appeal" p. 289Toni Locy

New Case: 05-8820 Lawrence v. Florida


"On the Docket: Lawrence, Gary v. Florida" p. 296Amy Held

"Floridian Sentenced in Iowan's Death" p. 298Stephen Buttry

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Carey v. Musladin

(05-785)

Ruling Below: (Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005), cert granted 126 S.Ct.1769, 74 USLW 3579, 74 USLW 3584, 06 Cal. Daily Op. Serv. 3140, 74 USLW 3371 [2006]).

Musladin was convicted of murder in the California state courts. He requested habeas relief inthe United States District Court for the Northern District of California, claiming his trial wasprejudiced because family members of the deceased wore buttons depicting the deceased at thetrial. His petition was denied by the District Court, but approved by the Ninth Circuit Court ofAppeals. The Ninth Circuit held that the buttons interfered with the right of the defendant to afair trial by an impartial jury free from outside influences.

Questions Presented: Whether the Ninth Circuit exceeded its authority by overturningrespondent's state conviction of murder on the ground that the courtroom spectators includedthree family members of the victim who wore buttons depicting the deceased.

Mathew MUSLADINPetitioner, Appellant,

V.

Anthony LAMARQUE, WardenRespondent, Appellee

United States Court of Appealsfor the Ninth Circuit

Decided October 21, 2005

[Excerpt: some footnotes and citations omitted]REINHARDT, Circuit Judge:

At a murder trial in which the centralquestion is whether the defendant acted inself-defense, are a defendant's constitutionalrights violated when spectators are permittedto wear buttons depicting the deceasedindividual? We conclude that under clearlyestablished Supreme Court law such apractice interferes with the right to a fairtrial by an impartial jury free from outsideinfluences.

Mathew Musladin appeals the district court's

denial of his petition for a writ of habeascorpus. He contends that the buttons wornby the deceased individual's family membersat his trial created an unreasonable risk ofimpermissible factors coming into play, andthat the state court was objectivelyunreasonable in denying this claim both ondirect appeal and in the post-convictionproceedings. In light of clearly-establishedfederal law set forth by the Supreme Court,and persuasive authority from this courtconcerning the proper application of thatlaw, we hold that the last-reasoned decisionof the state court constituted an

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unreasonable application of Supreme Courtlaw. Accordingly, we reverse the districtcourt's denial of Musladin's petition andremand for issuance of the writ.

I. Factual Background and ProceduralHistory

Musladin was charged in a California statecourt with first degree murder for the killingof Tom Studer, the fiance of his estrangedwife Pamela. On May 13, 1994, Musladincame to the house where Pamela, Studer,and Pamela's brother Michael Albaugh livedin order to pick up his son for a scheduledweekend visit. Pamela testified that she andMusladin had an argument, and thatMusladin pushed her to the ground.According to Pamela, when Studer andAlbaugh came out of the house to assist her,Musladin reached into his car to grab a gunand fired two shots at Studer, killing him.Musladin contends, however, that afterPamela fell to the ground, Studer andAlbaugh appeared, holding a gun and amachete respectively, and threatened him.Musladin asserted that, after seeing theweapons, he shot in the general direction ofStuder out of fear for his own life.Accordingly, at trial Musladin arguedperfect and imperfect self-defense. There isno dispute that Musladin fired the shot thatkilled Studer, although experts for both sidesagree that the fatal shot was the result of aricochet rather than a direct hit. UnderMusladin's theory of defense, there was nocrime and, thus, no victim.

During the 14-day trial, Studer's family satin the front row of the gallery. On each ofthose 14 days, at least three members of thefamily wore buttons on their shirts with thedeceased's photograph on them. Accordingto declarations submitted by the defendant,the buttons were several inches in diameter

and "very noticeable." Furthermore, thefamily members were seated in the rowdirectly behind the prosecution and in clearview of the jury. Before opening statements,counsel for Musladin requested that the trialjudge instruct the family members to refrainfrom wearing the buttons in court, out offear that the button's expressive contentwould influence the jury and prejudiceMusladin's defense. The trial judge deniedthe request. Musladin was convicted of firstdegree murder and three other relatedoffenses.

Musladin exhausted the available stateprocedures both on direct review and onpost-conviction relief. The California Courtof Appeal on direct appeal held, citingHolbrook v. Flynn, 475 U.S. 560, 570-71,106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), that:"While we consider the wearing ofphotographs of victims in a courtroom to bean 'impermissible factor coming into play,'the practice of which should be discouraged,we do not believe the buttons in this casebranded defendant 'with an unmistakablemark of guilt' in the eyes of the jurors."Musladin then filed a petition for a writ ofhabeas corpus in the District Court for theNorthern District of California. He alleged,among other things, that the state courtunreasonably applied clearly-establishedfederal law in determining that his right to afair trial was not violated by the familymembers' wearing of the buttons depictingthe deceased. The district court denied thepetition and this appeal followed.

II. The AEDPA Standard

Musladin's petition for habeas corpus isgoverned by the Anti-Terrorism andEffective Death Penalty Act (AEDPA).Therefore, we may not grant habeas relief tothe defendant unless the state court decision

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was "contrary to, or involved anunreasonable application of, clearlyestablished Federal law, as determined bythe Supreme Court of the United States." 28U.S.C. § 2254(d)(1). Because state courtsoften issue "postcard" denials that offer norationale for their dispositions, we determinewhether the state court unreasonably appliedfederal law by looking to the "last reasoneddecision of the state court as the basis of thestate court's judgment." Franklin v. Johnson,290 F.3d 1223, 1233 n. 3 (9th Cir. 2002).

In this case, we look to the opinion of theCalifornia Court of Appeal on direct appeal.AEDPA limits the source of clearly-established federal law to Supreme Courtcases. See28 U.S.C. § 2254(d)(1).Nevertheless, we recognize that precedentfrom this court, or any other federal circuitcourt, has persuasive value in our effort todetermine "whether a particular state courtdecision is an 'unreasonable application' ofSupreme Court law, and what law is 'clearlyestablished.' " Duhaime v. Ducharme, 200F.3d 597, 600 (9th Cir. 2000); see alsoRobinson v. Ignacio, 360 F.3d 1044, 1057(9th Cir. 2004) ("When faced with a novelsituation we may turn to our own precedent,as well as the decisions of other federalcourts, in order to determine whether thestate decision violates the general principlesenunciated by the Supreme Court and is thuscontrary to clearly established federallaw."); Williams v. Bowersox, 340 F.3d 667,671 (8th Cir. 2003) ("[T]he objectivereasonableness of a state court's applicationof Supreme Court precedent may beestablished by showing other circuits havingsimilarly applied the precedent."); Ouber v.Guarino, 293 F.3d 19, 26 (1st Cir. 2002)("[T]o the extent that inferior federal courtshave decided factually similar cases,reference to those decisions is appropriate inassessing the reasonableness vel non of the

state court's treatment of the contestedissue." (internal quotation marks and citationomitted)); Matteo v. Superintendent, SCIAlbion, 171 F.3d 877, 890 (3d Cir. 1999)("[W]e do not believe federal habeas courtsare precluded from considering the decisionsof the inferior federal courts whenevaluating whether the state court'sapplication of the law was reasonable.") (enbanc).

III. Discussion

"Due process requires that the accusedreceive a fair trial by an impartial jury freefrom outside influences." Sheppard v.Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507,16 L.Ed.2d 600 (1966). The Supreme Courthas held that when the consequence of acourtroom practice is that an "unacceptablerisk is presented of impermissible factorscoming into play," there is "inherentprejudice" to a defendant's constitutionalright to a fair trial and reversal is required.Flynn, 475 U.S. 570, 106 S.Ct. 1340. Inorder to determine whether Musladin isentitled to federal habeas relief, we musttherefore assess whether the buttonsdepicting the deceased individual worn byspectators at the trial posed a risk ofimpermissible factors coming into play thatis similar to those previously found to existin other circumstances, such as incompelling a criminal defendant to wearprison garb and shackles before the jury, seeEstelle v. Williams, 425 U.S. 501, 96 S.Ct.1691, 48 L.Ed.2d 126 (1976), and inpermitting spectators at a rape trial to wearanti-rape buttons, see Norris v. Risley, 918F.2d 828 (9th Cir. 1990). Because weconclude that no significant difference existsbetween the circumstances of this case andthe "unacceptable risks" found to exist inWilliams and Norris, we hold that the statecourt unreasonably applied established

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Supreme Court law in denying Musladinrelief.

a. Clearly Established Federal Law

The underlying federal law in this case-thatcertain practices attendant to the conduct ofa trial can create such an "unacceptable riskof impermissible factors coming into play,"as to be "inherently prejudicial" to acriminal defendant-was clearly establishedby the Supreme Court in Estelle v. Williams,425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d126 (1976), and Holbrook v. Flynn, 475 U.S.560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986).In Williams, the Court considered whethercompelling a criminal defendant to appear athis jury trial dressed in prison clothingviolated his right to a fair trial. See Williams,425 U.S. at 503-06, 96 S.Ct. 1691. TheCourt found that the compelled wearing ofprison clothing constitutes a continuousimpermissible reminder to the jury of thedefendant's condition: an accused in custodywho is unable to post bail. Id. at 505, 96S.Ct. 1691. The Court held that the influenceof prison clothing, and the message itconveys to the jurors, impairs a defendant'spresumption of innocence. See id. at 503, 96S.Ct. 1691. Noting these and other concerns,the Court concluded that because "[t]hedefendant's clothing is so likely to be acontinuing influence throughout the trial anunacceptable risk is presented ofimpermissible factors coming into play." Id.at 505, 96 S.Ct. 1691.

In Flynn, the court reaffirmed its holding inWilliams regarding the "inherent prejudice"of courtroom practices that create an"unacceptable risk of impermissible factorscoming into play," but distinguished thecase before it on the facts. The defendants inFlynn argued that the presence of fouruniformed state troopers sitting in the front

row directly behind them at trial led the juryto draw adverse inferences about them.Flynn, 475 U.S. at 563-64, 106 S.Ct. 1340.The Court explained that there are certain"courtroom practices [that it] might findinherently prejudicial," but that the use ofsecurity officers to the extent involved didnot fall into that category. Id. at 569, 106S.Ct. 1340. As the Court explained, the"inferences that a juror might reasonablydraw from the officers' presence" in thatcase "need not be that [the defendant] isparticularly dangerous or culpable." Id. Indistinguishing Flynn from Williams, theCourt pointed out that the jury may not evenhave noticed that extra guards were beingused in the trial, or most likely, drew noimpermissible inference from their presence.The court stated, "[guards] are doubtlesstaken for granted so long as their numbers orweaponry do not suggest particular officialconcern or alarm." Id. at 569, 106 S.Ct.1340. The law concerning the "inherentlyprejudicial" nature of courtroom practiceswhich convey an impermissible message,however, remained unchanged and clear.

This court's decision in Norris v. Risley, 918F.2d 828 (9th Cir. 1990), has persuasivevalue in an assessment of the meaning of thefederal law that was clearly-established byWilliams and Flynn and whether the statecourt's application of that law in the casebefore us is objectively unreasonable. Likethe present case, Norris involved theapplication of the Supreme Court's "inherentprejudice" rule in assessing whether buttonsworn by audience members during a trialcreated an "unacceptable risk ofimpermissible factor coming into play." SeeNorris, 918 F.2d 831-32. In Norris, thedefendant was facing a criminal charge ofrape. During the trial, several women sat inthe spectator's gallery wearing buttons thatread "Women Against Rape." Id. at 829. We

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noted that at any given time in Norris's trial,approximately three women in the audiencewould be wearing the anti-rape buttons. Id.at 831. Faced with these facts, we appliedWilliams and concluded that "[j]ust as thecompelled wearing of prison garb duringtrial can create an impermissible influenceon the jury, throughout trial the buttons'message constituted a continuing reminderthat various spectators believed Norris'sguilt before it was proven, eroding thepresumption of innocence." Id. at 831. Aswe explained, because of the button'sobvious communicative purpose, itsimpermissible message was far more clearand direct than that deemed unlawful inWilliams:

Thus, though far more subtle than a directaccusation, the buttons' message was all themore dangerous precisely because it was nota formal accusation. Unlike the state's directevidence, which could have been refuted byany manner of contrary testimony to bejudged ultimately on the basis of eachdeclarant's credibility, the buttons' informalaccusation was not susceptible to traditionalmethods of refutation. Instead, theaccusation stood unchallenged, lendingcredibility and weight to the state's casewithout being subject to the constitutionalprotections to which such evidence isordinarily subjected. Id. at 833.

Our reliance on Norris is appropriate foranother reason: the last reasoned state courtopinion identified Norris as setting forth theoperative law as announced by the SupremeCourt, and the state court sought to applyNorris when reaching its determination.Indeed, the state court's unreasonableapplication of federal law lies in itsmisapplication of the Williams test, as it wasexplained in Norris, to the facts of this case.The state court's decision to apply Norris,

and ours to afford it persuasive weight whendetermining the federal law as establishedby Williams, are particularly significant inlight of the striking factual similaritiesbetween Norris and the present case. SeeRichardson v. Bowersox, 188 F.3d 973, 978(8th Cir. 1999) ("In determining whether astate court's decision involved anunreasonable application of clearlyestablished federal law, it is appropriate torefer to decisions of the inferior federalcourts in factually similar cases.").

b. Unreasonable Application of the Law

Although the state court identified thecorrect federal law to apply in adjudicatingMusladin's claim, citing Williams for thecontrolling principle, and properly lookingto our decision in Norris as a persuasiveapplication of that federal law in a factuallysimilar case, the state court was objectivelyunreasonable both in its ultimate conclusionand in the rationale it employed in denyingMusladin's appeal. The California Court ofAppeal justified its rejection of Musladin'sclaim as follows:

[i]n contrast to the buttons in Norris, themessage to be conveyed by the Studerfamily wearing buttons is less than clear.The simple photograph of Tom Studer wasunlikely to have been taken as a sign ofanything other than the normal griefoccasioned by the loss of a family member.While we consider the wearing ofphotographs of victims in a courtroom to bean "impermissible factor coming into play,"the practice of which should be discouraged,we do not believe the buttons in this casebranded defendant "with an unmistakablemark of guilt" in the eyes of the jurors.People v. Musladin, No. H015159 at 21-22(Cal.Ct.App. Dec. 9, 1997) (unpublisheddecision) (citing Flynn, 475 U.S. at 570-71,

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106 S.Ct. 1340).

By disposing of Musladin's claim in theabove manner, the state court unreasonablyapplied federal law by imposing anadditional and unduly burdensomerequirement-demanding that the challengedpractice cause the "brand [ing]" of thedefendant with an "unmistakable mark ofguilty"-even though the Williams test forfinding "inherent prejudice" had alreadybeen met. The court specifically found "thewearing of photographs of victims in acourtroom to be an 'impermissible factorcoming into play' " (emphasis added).Under Williams and Flynn, that finding, initself establishes "inherent prejudice" andrequires reversal.

Williams and Flynn cannot be distinguished.In the case before us, the state court foundnot only that an "unreasonable risk" existedthat an impermissible factor would comeinto play, but that an impermissible factoractually had come into play. Nevertheless,after setting forth this finding, the state courtadded that, although the practice of wearingsuch buttons "should be discouraged,"Musladin was not entitled to relief because"the buttons in this case [did not] brand[ ]defendant 'with an unmistakable mark ofguilt' in the eyes of the jurors." The statecourt was unreasonable in imposing thisadditional requirement after it hadconcluded that the "inherent prejudice"elements had already been fully established.The Supreme Court announced in Williamsand Flynn that following a finding of anunacceptable risk of impermissible factorscoming into play, no further showing isnecessary because the practice is thendeemed "inherently prejudicial." Here, thestate court flouted that rule: it required thatthe challenged practice not only constitutean unacceptable risk of an impermissible

factor coming into play but also that it"brand" the defendant with an"unmistakable mark of guilt." Thisadditional test imposes too high and toounreasonable a burden on defendants and iscontrary to established Supreme Court law.See Benn v. Lambert, 283 F.3d 1040, 1051n. 5 (9th Cir. 2002).

We note that the "branding" with an"unmistakable mark of guilt" languageemployed in Flynn constituted only adescriptive comment. See Flynn, 475 U.S. at571, 106 S.Ct. 1340 (quoting Williams, 425U.S. at 518, 96 S.Ct. 1691 (Brennan, J.,dissenting)). Both Williams and Flynn areclear as to the legal standard, and neithersuggested that "branding" was necessary.Indeed, under the state court's interpretation,the holding in Williams would not surviveits own test. The Williams Court neverfound, or even implied, that the compelleddonning of prison clothing would "brand[the] defendant 'with an unmistakable markof guilt' in the eyes of the jurors." Rather,the court's concern was directed purely atthe clothes' role as a "constant reminder ofthe accused's condition"-a "continuinginfluence throughout the trial," principallybecause the requirement that defendantswear prison clothes "operates usuallyagainst only those who cannot post bail priorto trial." Williams, 425 U.S. at 504-06, 96S.Ct. 1691. At most, the Williams Courtfound that the shackling and prison clotheswere "unmistakable indications of the needto separate a defendant from the communityat large," not that they would "brand" thedefendant with an "unmistakable mark ofguilt." Flynn, 475 U.S. at 569, 571, 106S.Ct. 1340. Although a practice that brands adefendant as guilty would surely besufficient to demonstrate "inherentprejudice" and require reversal, branding isnot a necessary element of establishing such

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prejudice. The state court's imposition of theadditional "branding" requirement wascontrary to clearly established federal lawand constituted an unreasonable applicationof that law.

Moreover, the finding by the CaliforniaCourt of Appeal goes beyond the findingthat was held to require reversal in Norris.The state court attempted to distinguishNorris, but Norris simply cannot reasonablybe distinguished. The message conveyed inthe present case is even stronger and moreprejudicial than the one conveyed in Norris.The state court unreasonably justified itsconclusion by stating that, when comparedto the buttons worn by spectators in Norris,the "message conveyed by the Studer familywearing buttons is less than clear." This issimply not the case. Just as we held that themessage sent by the anti-rape buttons wassubstantially more direct and clear than themessage conveyed by the prison clothing inWilliams, see Norris, 918 F.2d at 831, themessage conveyed by the buttons depictingStuder in the case before us is substantiallymore direct and clear than that of the anti-rape buttons in Norris. In Norris, the buttonsexpressed the wearer's position against rapebut did not specify the defendant or thevictim. In this case, the buttons actuallydepicted the individual that the defendantwas charged with murdering and representedhim as the innocent party, or the victim.Here, the direct link between the buttons, thespectators wearing the buttons, thedefendant, and the crime that the defendantallegedly committed was clear andunmistakable. The primary issue atMusladin's trial was whether it was thedefendant or the deceased individual whowas the aggressor. The buttons essentially"argue" that Studer was the innocent partyand that the defendant was necessarilyguilty; that the defendant, not Studer, was

the initiator of the attack, and, thus, theperpetrator of a criminal act.

The California court's belief that buttonsdepicting the deceased individual were"unlikely to have been taken as a sign ofanything other than the normal griefoccasioned by the loss of a family member"is even more incorrect as a matter of lawthan the view that interpreting the "Womanagainst Rape" buttons in Norris served nopurpose other than women announcing ageneral statement against rape or expressingsolidarity with, or support for, the rapevictim in Norris's case.

We did not excuse the wearing of thebuttons on that ground in Norris, and it wasobjectively unreasonable in light of Norrisfor the state court to do so here. See Norris,918 F.2d at 831. In both Norris and the casebefore us, the law requires the courts to lookbeyond the general sentiment a buttonreflects and to determine the specificmessage that the button conveys in light ofthe particular facts and issues before thejury. Doing so here, a reasonable juristwould be compelled to conclude that thebuttons worn by Studer's family membersconveyed the message that the defendantwas guilty, just as the buttons worn byspectators in Norris did in that case.

IV. Conclusion

In finding the wearing of buttons depictingthe deceased individual to be an"impermissible factor coming into play," thestate court reached the point at which theSupreme Court "went no further andconcluded that the practice[at issue wa]sunconstitutional." Flynn, 475 U.S. at 568,106 S.Ct. 1340. Instead of granting relief,however, the state court, disregarding thefact that the central question was one of self-

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defense, unreasonably stated that themessage conveyed through the wearing ofthe buttons in this case was not as clear asthat conveyed by the anti-rape buttons inNorris. The state court then unreasonablyheld that "branding" the defendant with "anunmistakable mark of guilt" is necessary togrant relief even though it had already foundthat "impermissible factors" had come intoplay before the jury. The state court did notsimply engage in an incorrect application ofSupreme Court law. Rather, its applicationof that law was contrary to the Court'sestablished rule of law and was objectivelyunreasonable. Accordingly, we reverse thedistrict court's denial of Musladin's petitionfor habeas corpus and remand for issuanceof the writ. Musladin shall be releasedunless the state elects to re-try him within 90days of the issuance of the mandate.Reversed and Remanded.

THOMPSON, Senior Circuit Judge,dissenting:

I respectfully dissent.A further statement of the facts seemsappropriate. The petitioner, Musladin, andhis wife, Pam, were married but separated atthe time of the crimes of which Musladinwas convicted. Pam was living at hermother's house with her brother MichaelAlbaugh, her fianc6 Tom Studer, andGarrick Musladin, her then three-year-oldson by Musladin. On the day of theshooting, Musladin went to the house to pickup Garrick for a scheduled weekendvisitation.

The prosecutor presented evidence that anargument ensued between Pam andMusladin in the driveway, during whichMusladin pushed Pam to the ground andreached for a gun in his car. Albaugh,standing in the driveway, yelled, "He's got a

gun." Pam and Studer ran up the driveway.Musladin fired the gun at Pam and Studer,hitting Studer in the back of the shoulder.Pam ran into the house and out the backdoor. Studer fell to the ground and attemptedto crawl underneath a truck in the garage.Musladin entered the garage and fired asecond shot which ricocheted into Studer'shead, killing him.

Musladin presented a different version ofthese events. He admitted shooting at Studerand killing him, but claimed perfect andimperfect self-defense. He testified that hebelieved Albaugh was carrying a macheteand Studer a gun, and that he fired bothshots out of fear for his life. After firing theshots, he got in his car and drove away.

Musladin was tried and convicted of first-degree murder of Studer and attemptedmurder of Pam.

I disagree with the majority's reliance uponour decision in Norris v. Risley, 918 F.2d828 (9th Cir. 1990), for the application inthis case of the rule of Estelle v. Williams,425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d126 (1976). In Williams, the Courtdetermined it to have been a violation of theright to a fair trial for the state to havecompelled the defendant to wear prisonclothing during his trial. Id. at 505, 96 S.Ct.1691. The Court held the prison clothingimpaired the defendant's presumption ofinnocence. Id. In the present case, the statecourt permitted relatives of the deceasedvictim to wear buttons in the courtroom. Thebuttons disclosed only the deceased victim'spicture, nothing else, and had nothing to dowith the defendant.

Our Norris case was a case involving threewomen who wore buttons in the courtroomduring the defendant's trial for rape, but that

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case is not controlling here. The buttons inNorris were two and one-half inches indiameter and bore the words "WomenAgainst Rape." Norris, 918 F.2d at 830."[T]he word 'rape' [was] underlined with abroad red stroke." Id. We stated: "[T]hebuttons' message, which implied that Norrisraped the complaining witness, constituted acontinuing reminder that various spectatorsbelieved Norris's guilt before it was proven,eroding the presumption of innocence." Id.at 831.

Here, the buttons were three to four inchesin diameter and, except for the deceasedvictim's picture, there was nothing else onthem. The buttons conveyed no "message."As the state appellate court stated, "Thesimple photograph of Tom Studer wasunlikely to have been taken as a sign ofanything other than the normal griefoccasioned by the loss of a family member."Further, it is difficult to distinguish this casefrom the routine situation of a deceasedvictim's family members, without buttons,sitting as a group in a courtroom during atrial. Jurors in such a trial surely wouldrecognize the group for what it is. Theaddition of buttons worn by them showingonly the victim's photograph would add littleif anything to any possible risk ofimpermissibly prejudicing the jury.

Although the state appellate court in thepresent case commented that it"consider[ed] the wearing of thephotographs of victims in a courtroom to bean 'impermissible factor coming into play,'the practice of which should bediscouraged," quoting the "impermissiblefactor" language from Williams, 425 U.S. at505, 96 S.Ct. 1691 (which the SupremeCourt also quoted in Holbrook v. Flynn, 475U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d525 (1986)), the state court's "impermissible

factor" comment is most reasonablyunderstood as reflecting that court's viewthat buttons bearing a victim's photographshould not be worn in a courtroom. Thecomment did not change the buttons ormake them something they were not.Moreover, the state court's additionalcomment that the buttons did not "brand[ ]defendant 'with an unmistakable mark ofguilt' " is most reasonably understood as anexplanation that the buttons were not "soinherently prejudicial as to pose anunacceptable threat to [the] right to a fairtrial." Holbrook, 475 U.S. at 572, 106 S.Ct.1340.

In sum, I do not believe the decision by theCalifornia Court of Appeal was "contrary to,or involved an unreasonable application of,clearly established Federal law, asdetermined by the Supreme Court of theUnited States." See28 U.S.C. § 2254(d)(1).The state court's decision was not "contraryto" any such federal law, because the statecourt did not " 'appl[y] a rule thatcontradicts the governing law set forth in[Supreme Court] cases,' " nor did the statecourt " 'confront[ ] a set of facts that arematerially indistinguishable from a decisionof [the Supreme] Court and neverthelessarrive[ ] at a result different from [SupremeCourt] precedent.' " Lockyer v. Andrade,538 U.S. 63, 73, 123 S.Ct. 1166, 155L.Ed.2d 144 (2003) (quoting Williams v.Taylor, 529 U.S. 362, 405-06, 120 S.Ct.1495, 146 L.Ed.2d 389 (2000)).

Nor does the state court's decision abridgethe "unreasonable application" clause of 28U.S.C. § 2254(d)(1). "The 'unreasonableapplication' clause requires the state courtdecision to be more than incorrect orerroneous. The state court's application ofclearly established law must be objectivelyunreasonable." Lockyer, 538 U.S. at 75, 123

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S.Ct. 1166 (internal citations omitted). Here,even if erroneous (which it was not), theCalifornia Court of Appeal's decision wasnot "objectively unreasonable."

The petitioner also asserts a number of otherclaims that he argues merit habeas relief. Iwould reject those claims as well, and thuswould affirm the district court.

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(Dissenting opinion from the Ninth Circuit's denial of En Banc Review:)

Musladin v. Lamarque

427 F.3d 647C.A.9 (Cal.),2005.

KLEINFELD, Circuit Judge:

I respectfully dissent from the order denyingrehearing en banc. We have effectivelyerased a statutory provision designed torestrict the power of the lower federal courtsto overturn fully reviewed state courtcriminal convictions. And we havesharpened a serious circuit split.

Musladin was convicted of murder, and hisconviction was upheld through direct andcollateral review in the California courts.The California Court of Appeal carefullyand reasonably applied the relevantprecedents of the United States SupremeCourt, but arguably deviated from theimplications of a Ninth Circuit precedent.

In 1996, Congress adopted the Antiterrorismand Effective Death Penalty Act (AEDPA),amending the standard that federal courtsmust apply to state criminal convictions inhabeas cases. The statute as amended saysthat we may grant a habeas petition if andonly if the last reasoned state court decision"was contrary to, or involved anunreasonable application of, clearlyestablished Federal law, as determined bythe Supreme Court of the United States."Our decision in this case has the practicaleffect of erasing the statutory phrase "asdetermined by the Supreme Court of theUnited States." Our tools for statutoryconstruction are many, but they do notinclude an eraser. Yet here we go, erasingthe "clearly established" phrase and

expanding the "as determined" phrase. Thestatute in nine states now says, as a practicalmatter, "contrary to, or involved anunreasonable application of, clearlyestablished Federal law, as determined bythe Supreme Court of the United States,giving 'persuasive weight' to Ninth Circuitdecisions that have applied Supreme Courtdecisions." We do not have that legislativeauthority.

The facts of this case and of the controllingprecedents show just how clear our mistakeis. Musladin, embroiled in a custody disputewith his estranged wife, murdered her newfianc6. At his trial, three members of thefianc6's family sat in the spectator section ofthe courtroom wearing buttons with hispicture on them. The buttons were two-to-four inch pictures of the victim but had nowords. Musladin argued in his state courtappeal and petition for review that thebuttons denied him due process of law byeroding his presumption of innocence.

The California Court of Appeal concludedthat the buttons contained no expressmessage and were unlikely to signify"anything other than the normal griefoccasioned by the loss of a family member."The California Court carefully examinedEstelle v. Williams and Holbrook v. Flynn(the relevant Supreme Court decisions) andNinth Circuit cases. Though the Court ofAppeal noted that button wearing should be"discouraged," it held that the buttons didnot amount to a denial of due process

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because they did not brand Musladin "withan unmistakable mark of guilt."

The statute is quite clear that our task onreview of Musladin's petition for a writ ofhabeas corpus is not to examine theCalifornia Court of Appeal decision asthough we were a higher California court.Rather, we exercise a much more limitedand deferential review to determine whetherthe California Court of Appeal actedcontrary to "clearly established SupremeCourt" precedent or "unreasonabl[y]"applied it. The only question for us iswhether there is any Supreme Courtauthority that holds that silent signals ofaffiliation by spectators in a courtroom denya defendant due process by eroding hispresumption of innocence. The answer isthat there is no such case. That should be theend of our inquiry.

The Supreme Court held in Estelle v.Williams that forcing a defendant to wearprison clothes at trial is "inherentlyprejudicial" and denies due process. It heldin Holbrook v. Flynn that the presence ofseveral armed uniformed officers in thespectators' row directly behind the prisoneris not inherently prejudicial. Neither of thesecases holds that a spectator's symbol ofaffiliation or even opinion denies dueprocess to a defendant.

Dressing the defendant in "prison garb," theEstelle problem, is not analogous tospectators wearing buttons. First, prisongarb is an unambiguous statement that thedefendant is already a prisoner. Second, it isa communication to the jury of thegovernment's determination-not a non-governmental spectator's-that the defendantbelongs in jail. The buttons, by contrast, areambiguous. They may mean "we really wantthis defendant punished because we care a

lot about his victim," or they may merelymean "we care a lot about the victim,"without an implication that the defendant isthe proper person to be punished. Even moreimportant, the spectators' buttons do notimply any determination by the government.Even if the buttons did imply that thespectators wanted the defendant punished,that would not be as corrosive of thepresumption of innocence as the governmentsaying "this defendant belongs in jail and heis already there because of ourdetermination." Unlike the spectators'buttons in this case, the prison garb inEstelle detracted from the presumption ofinnocence and from the defendant's dignityin the courtroom.

The presence of the armed officers in thespectator section in Flynn more closelyresembles the facts in our case than does theprison garb in Estelle. Both involve what thejury might perceive as communications fromthe spectators' section. But the SupremeCourt held that the presence of the armedofficers did not deprive the defendant of dueprocess by corroding the presumption ofinnocence. And the armed officers were farmore likely to do so than spectators notassociated with the government because theofficers represented the government andmight have communicated its judgment thatthe defendant was dangerous. The SupremeCourt held that the armed officers did notdeny due process because of the "widerrange of inferences that a juror mightreasonably draw from the officers'presence." The courtroom cannot be totallyfree of indications that the state thinks thedefendant is guilty, for "jurors are quiteaware that the defendant appearing beforethem did not arrive there by choice orhappenstance." With these two SupremeCourt cases as bookends-showing whatdenies due process and what does not-the

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California courts were well within thebounds of reasonable interpretation indetermining that this case is more likeFlynn. The buttons with a picture of thedead fianc6 did not say or obviously implythat the defendant killed him, just that thespectators wearing them cared about him.

So how did the panel majority manage toreach a different result in the face ofSupreme Court decisions plainly leavingroom for the California courts' conclusionand a statute limiting us to Supreme Courtdecisions? The panel extended a NinthCircuit case, not a Supreme Court case,Norris v. Risley. But the statute says wecannot do that, with the express restriction"as determined by the Supreme Court of theUnited States." The panel evades thatrestriction by holding that we give"persuasive weight" to Ninth Circuit caseswhen determining what is "clearlyestablished Federal law, as determined bythe Supreme Court." The panel's propositionmeans that we will grant writs based onprecedents other than those of the SupremeCourt. Ergo, the statutory restriction on ourpower is erased.

We held in Norris-before AEDPA-that thewrit should be granted where several femalespectators wore "Women Against Rape"buttons in the presence of jurors in"elevators, in the courtroom, on their way toand from the courtroom," and while "thewomen served refreshments outside thecourtroom on behalf of the state." Californiacould properly decide the case at bar bydistinguishing Norris, disagreeing withNorris, or in complete ignorance of Norris.Under AEDPA's restriction to SupremeCourt decisions, we are obligated to denythe writ so long as the California decisionwas not contrary to or an unreasonableapplication of Estelle and Flynn. We cannot

legitimately require the California courts tofollow Ninth Circuit decisions on pain ofour letting their prisoners out onto the street.

At least four of our sister circuits haveexpressly repudiated the error our panel hasmade. The Sixth Circuit, in Mitzel v. Tate,held that "[w]e may not look to the decisionsof our circuit, or other courts of appeals,when 'deciding whether the state decision iscontrary to, or an unreasonable applicationof, clearly established federal law.' " TheTenth Circuit in Welch v. City of Pratt heldAEDPA "restricts the source of clearlyestablished law to [the Supreme] Court'sjurisprudence" and federal courts aretherefore "no longer permitted to apply ourown jurisprudence." The Seventh Circuitlikewise determined that "[flederal courtsare no longer permitted to apply their ownjurisprudence, but must look exclusively toSupreme Court case-law."

The Fourth Circuit has also held that habeasrelief may be granted only if "the state courtdecision is contrary to, or an unreasonableapplication of Supreme Court jurisprudence,and not circuit court precedent," so "anyindependent opinions we offer on the meritsof the constitutional claims will have nodeterminative effect in the case before us,nor any precedential effect for state courts infuture cases. At best, it constitutes a body ofconstitutional dicta." The Fourth Circuitexpressly rejects the notion that the lowerfederal courts need to provide "guidance" tothe state courts on how to read the SupremeCourt opinions. There is

no reason to presume that state courts are inneed of our guidance in interpreting andapplying the controlling Supreme Courtprecedents. Our charge under the statute isonly to determine whether the state court'sadjudication of the claims before it was a

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reasonable one in light of the controllingSupreme Court law.

Arguably our panel did not create the circuitsplit ex nihilo. The panel notes that theEighth Circuit in Williams v. Bowersox heldthat the "diversity of opinion" among federalcourts on a particular issue suggested thatthe state court did not unreasonably applySupreme Court precedent. But saying thatthe state court decision is not unreasonablebecause some federal courts have reachedsimilar conclusions is not at all the same assaying that the state court decision isunreasonable because a circuit court hasreached a contrary conclusion. The FirstCircuit in Ouber v. Guarino and the ThirdCircuit in Matteo v. Superintendent comemuch closer to supporting the panel'sdecision, but our panel is unique in howboldly it has flown in the face of thestatutory restriction to Supreme Courtdecisions.

Those of us who have actually tried cases tojuries have frequently observed howspectators communicate their feelings. Thiscommunication is an unavoidableconsequence of the Constitutional guaranteeof "public trial." Sometimes there is a wallof brown or blue in the spectators' section,displaying that state or municipal police carea great deal about the case. Sometimes thecourtroom is full of Hells Angels colors,signifying a concern for their brother in thedefendant's chair. The local rape supportcenter volunteers may crowd into the seatsbehind the prosecutor in a rape trial whilethe victim sits silently looking at the jurorsthrough the entire trial. Defense lawyersround up family members to show supportfor the defendant by sitting behind thedefense table.

There is nothing wrong with the jury

knowing that people care about the case andthe parties. Typically, the spectators arrangethemselves like wedding guests choosing thebride's side or the groom's side, with thosewho favor a party sitting behind the lawyerfor that side. In a public trial, the jury canalways see that a lot of people care aboutone side or the other, or that no one caresexcept the parties and lawyers. Goodlawyers often use this to their advantage,and good judges exercise prudence to avoidsituations that might intimidate or prejudicethe jury. Perhaps, as the California Court ofAppeal implied, the trial judge in this caseshould have told the family members toremove their buttons. T-shirts with picturesof the victim would be difficult, but buttonsare easy. There is no legitimate way forjudges to prevent spectators in a public trialfrom showing that they care about the caseand support one side or the other, even ifonly by where they sit and who they look atwith sympathy or hostility. Public concernand public sympathy for one side or theother are part of what it means for a trial tobe "public."

The panel's error is symptomatic of a deeperproblem than its misapplication of SupremeCourt precedent to spectators' photo buttons.Few things incumbent on powerfulgovernment officials are more fundamentalthan their duty to comply with the legallimitations on their power. Our panel hasarrogated to our court power that we do notlegitimately possess.

State judges take the same oath to upholdthe Constitution that we do and perform thesame work we do, construing Constitutionalprovisions and applying them to the factsbefore them. We do not sit as a stateappellate court. One problem theysometimes have is deciding what to do aboutlower federal court decisions. Obviously

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they have to follow United States SupremeCourt decisions, and they construe them asroutinely as we do. Obviously they do nothave to follow federal decisions onquestions of state law. Not quite asobviously, but just as true, state courtsunderstand that they are free to act contraryto circuit court holdings on questions offederal law. Lower courts must follow thelaw laid down by higher courts. But we arenot a higher court than the Supreme Court ofCalifornia or the California Court of Appeal,or for that matter, California traffic courts.We are in a different judicial hierarchy.

Our panel's error creates uncertainty andinconsistency for the nine state courtsystems and nearly 20% of our nation'spopulation within the Ninth Circuit. Mustthey follow our decisions when they thinkour decisions are contrary to or unreasonableapplications of Supreme Court precedent?The statute tells them one thing, we tellthem another, and the briefs they get will tellthem both. Under the plain statutorylanguage, state courts are free to ignore ourdecisions. But under the panel's decision,they must follow them. We have effectivelyturned ourselves into the supreme court ofthe nine states in our circuit. I thereforedissent.

BEA, Circuit Judge:

I join Judge Kleinfeld's dissent from thedenial of rehearing en banc. I writeseparately to underscore that it was not an"unreasonable application of clearlyestablished federal law" for the CaliforniaCourt of Appeal to deny habeas reliefnotwithstanding its determination that thewearing of victims' photographs in acourtroom constitutes an "impermissible

factor coming into play."

The panel opinion suggests that, once theCalifornia Court of Appeal "specificallyfound 'the wearing of photographs ofvictims in a courtroom to be an"impermissible factor coming into play," ' "

Musladin's conviction could not stand. Therationale offered in support of thisconclusion is that, "[u]nder Williams andFlynn," the finding of an impermissiblefactor coming into play "in itself establishes'inherent prejudice' and requires reversal."

The panel opinion misconstrues Williamsand Flynn. In Williams, the Courtestablished that putting a defendant on trialin prison garb is constitutional error of thevariety amenable to harmless-error analysis.When the Court in Flynn "reaffirmed itsholding in Williams," it did not, of course,transform "courtroom arrangementschallenged as inherently prejudicial" intostructural errors. Rather, Flynn suggestedthat, to obtain a conviction's reversal, adefendant must show "actual prejudice"even after successfully demonstrating thatthe challenged courtroom arrangement was"inherently prejudicial." Under Flynn, inother words, it is possible to have a situationthat is "inherently prejudicial" but not " soinherently prejudicial as to pose anunacceptable threat to [a] defendant's rightto a fair trial."

Accordingly, it was a reasonable applicationof Supreme Court precedent for theCalifornia Court of Appeal to determinethat, although in its view the wearing ofvictims' photographs in a courtroom isinherently prejudicial, the button-wearing inthis case did not actually deprive Musladinof his right to a fair trial.

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"Justices to Rule on Photos at Trial; An appeals panel threw out the conviction of aCalifornia man because family members wore buttons displaying the victim's picture in

court"

Los Angeles TimesApril 18, 2006

David G. Savage

The Supreme Court agreed Monday todecide whether a California murderer's rightto a fair trial was denied when members ofthe victim's family wore buttons in courtwith a photo of the slain man. It is the latestinstance of the high court's reconsidering aruling from the liberal-leaning U.S. 9thCircuit Court of Appeals in a criminal case.

In the murder case, the appeals court, in a 2-1 decision, last year overturned theconviction of Mathew Musladin of San Josefor the 1994 shooting of his ex-wife's fiance,Tom Studer. Judge Stephen Reinhardt ofLos Angeles said the buttons with thevictim's photo "conveyed the message thatthe defendant was guilty" and might haveprejudiced the jury. Judge Marsha S. Berzonof San Francisco agreed with him.

The trial judge had said he saw no problemwith the family members wearing buttons incourt. They were probably seen by jurors asa sign of "the normal grief occasioned by theloss of a family member," another statejudge said. The California courts and afederal judge upheld Musladin's convictionbefore his case reached the 9th Circuit.

After their separation in 1992, Musladin hadthreatened to kill his former wife, Pamela,and the two had repeated confrontationsover who would have custody of their son.In 1994, Pamela was engaged to marryStuder. On an afternoon in May of that year,Musladin came to her house in San Jose to

pick up their son for a visit. In the driveway,he angrily shoved Pamela to the ground.

When her brother and Studer came to heraid, Musladin shot Studer, first in theshoulder and then in the head. Hemaintained the shooting was in self-defense.

During the trial, three family members worebuttons with 2- to 4-inch photos of Studer.The jury convicted Musladin of first-degreemurder and he was sentenced to 32 years inprison.

Congress in 1996 made it harder for federaljudges to overturn state criminalconvictions. It said U.S. judges should notfree state inmates unless their convictionsarose from "an unreasonable application ofclearly established federal law," as set by theSupreme Court.

Nonetheless, the 9th Circuit has continued tooverturn state convictions with regularity.

Seven judges on the 9th Circuit filed adissent, saying the full appeals court shouldreconsider the decision set by Reinhardt andBerzon.

California Atty. Gen. Bill Lockyer appealedto the Supreme Court, urging the justices toreverse the ruling.

On Monday, the court issued an order196

granting the appeal and saying it would hear

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the case in the fall.

"COURTS; Buttons of victim's family prompt new trial"

The San Francisco ChronicleApril 9, 2005Bob Egelko

Members of a slain San Jose man's familywho wore buttons showing his photo at amurder trial may have swayed the jury, afederal appeals court said Friday inoverturning the defendant's murderconviction.

Mathew Musladin of Fair Oaks (SacramentoCounty) was convicted of first-degreemurder for shooting his estranged wife'sfiance, Tom Studer, 31, outside the couple'sSan Jose home in May 1994. Musladin, then34, claimed self-defense, saying Studer hadcome outside with a gun after Musladinargued with his wife, Pamela, and pushedher to the ground.

In a 2-1 ruling, the Ninth U.S. Circuit Courtof Appeals granted Musladin a new trial.The majority of judges said the courtroomdisplay of buttons by Studer's family hadviolated Musladin's right to "a fair trial byan impartial jury free from outsideinfluences."

At least three of Studer's relatives sat in afront row of the courtroom throughout thetrial wearing buttons with large photos of

the victim's face. Musladin's attorneyobjected, but the trial judge refused to orderthe buttons removed.

The appeals court majority said the case wascomparable to two others in whichconvictions were overturned: a 1976Supreme Court case in which the defendantwas forced to wear prison clothing andshackles in court, and a 1990 Ninth Circuitcase in which spectators at a rape trial worebuttons reading "Women Against Rape." Inboth cases, the court said, a message of guiltwas conveyed to the jury.

In this case, where the only issue was theclaim of self-defense, "the buttonsessentially 'argue' that Studer was theinnocent party and that the defendant wasnecessarily guilty," said Judge StephenReinhardt.

In dissent, Judge David Thompson said thebuttons sent no message, had nothing to dowith Musladin, and were unlikely to havehad any more impact than victims' familymembers who typically sit together during amurder trial.

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"Ninth Circuit Will Not Review Ruling That Wearing of Buttons Depicting Victim in CourtRequires New Trial"

Metropolitan News Enterprise (Los Angeles, Calfornia)October 24, 2005Kenneth Ofgang

The Ninth U.S. Circuit Court of Appealsyesterday denied en banc rehearing of aruling granting a new trial to a convictedmurderer who claimed he was denied a fairtrial because relatives of the victim appearedin court wearing buttons with the deceased'spicture on them.

The denial brought a strong dissent, signedby seven judges, arguing that the paneldecision "effectively erased" the statutoryprovision limiting the power of federalcourts to overturn state convictions.

The Northern California defendant, MatthewMusladin, was convicted in the 1994 killingof Tom Studer, who was engaged to marryMusladin's estranged wife.

Pamela Musladin testified that she and herhusband, who had come to her home to pickup their son for a weekend visit, got into anargument and that Studer and her brother,with whom she shared the house, came outto assist her after she was pushed to theground. Musladin, she said, grabbed a gunand fired two shots, killing Studer.

The defendant admitted pushing his wife tothe ground. But he contended that Studerand the defendant's brother were armed andthat he shot in their direction out of fear forhis own life.

Experts agreed that Studer was killed by aricocheting bullet. Musladin claimed bothself-defense and imperfect self-defense.

Members of Studer's family, who sat in thefront row of the gallery at trial, wore buttonson their shirts with the decedent's picture onthem during each of the 14 days of the trial.The trial judge overruled defense objectionsto the wearing of the buttons.

Convicted of first degree murder, Musladinlost his state appeals, the Court of Appealholding that while the wearing ofphotographs depicting a victim "should bediscouraged," it did not brand the defendantas guilty in the context of the particular case.

Musladin sought habeas corpus relief instate and federal courts. He took his appealto the Ninth Circuit after U.S. MagistrateJudge James Larson of the Northern Districtof California ruled that the state courts hadnot acted contrary to clearly establishedfederal law in upholding the conviction.

Writing for the panel, Judge StephenReinhardt said the magistrate judge erred inhis application of the Antiterrorism andEffective Death Penalty Act of 1996, whichlimits federal habeas corpus relief from stateconvictions to cases in which the final statecourt ruling is contrary to, or anunreasonable application of, clearlyestablished law as determined by the U.S.Supreme Court.

Reinhardt cited a Supreme Court ruling thata defendant was deprived of due processwhen forced to wear prison garb in court.The judge also noted that the Ninth Circuithad applied that decision in holding that the

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wearing of buttons by women at a rape trial,reading "Women Against Rape," may haveimpermissibly influenced the jury to convict.

But Judge Andrew Kleinfeld, dissentingfrom yesterday's denial of en banc review,said the panel had, in effect, removed the"clearly established" language from AEDPAand improperly relied on Ninth Circuit,rather than Supreme Court, precedent.

Nothing in Supreme Court precedent,Kleinfeld argued, establishes a blanket ruleagainst the wearing of buttons in court. Inthis case, he said, the buttons-which bore thevictim's photo, but no words-conveyed onlythat the victim's family mourned his loss,not that they were trying to persuade the juryto convict.

The judge elaborated:"There is nothing wrong with the juryknowing that people care about the case andthe parties. Typically, the spectators arrangethemselves like wedding guests choosing thebride's side or the groom's side, with thosewho favor a party sitting behind the lawyerfor that side. In a public trial, the jury canalways see that a lot of people care aboutone side or the other, or that no one caresexcept the parties and lawyers. Good

lawyers often use this to their advantage,and good judges exercise prudence to avoidsituations that might intimidate or prejudicethe jury. Perhaps, as the California Court of

Appeal implied, the trial judge in this caseshould have told the family members toremove their buttons... .There is nolegitimate way for judges to preventspectators in a public trial from showing thatthey care about the case and support oneside or the other, even if only by where theysit and who they look at with sympathy orhostility. Public concern and publicsympathy for one side or the other are partof what it means for a trial to be public."'

The dissent was joined by Judges AlexKozinski, Richard Tallman, ConsueloCallahan, Diarmuid F. O'Scannlain, JayBybee, and Carlos Bea. Bea, in a separatedissent joined by Kleinfeld, Kozinski, andO'Scannlain, argued that under SupremeCourt precedent, the trial judge committed,at most, harmless error by allowing thebuttons to be worn because there was noshowing that the verdict would have beendifferent.

The case is Musladin v. Lamarque, 03-16653.

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"San Jose Man Fatally Shot; Lover's Spouse Arrested"

San Jose Mercury NewsMay 14, 1994

Rodney Foo and Sandra Gonzales

A San Jose man was gunned down at hisBlossom Valley home Friday by hisgirlfriend's estranged husband, who wasarrested minutes after the shooting, policesaid.

Within 10 minutes after the shooting at 539Bluefield Drive, an undercover officerstopped a car that fit the description of theprime suspect's vehicle on Highway 101 justsouth of Blossom Hill Road and arrestedMathew Guy Musladin.

Inside Musladin's car, police found ahandgun that investigators believe was usedin the killing of Thomas Allen Studer, a 31-year-old plumber who was living withMusladin's estranged wife, Pamela, 23.

Musladin, 34, of Fair Oaks, was taken topolice headquarters, questioned, and thenbooked on suspicion of murder. Musladinworks in retail sales, police said.

The 1:50 p.m. shooting unfolded whenMusladin went to his former wife's home topick up their 3-year-old son. The couple hadbeen separated for more than a year and shehad been living with Studer for about threemonths, police said.

An argument between the couple eruptedoutside the home and Studer tried tointervene. Police say Musladin went to hisvehicle, got a gun and shot Studer in front ofthe home's open garage.

Musladin took his son and drove away.Pamela Musladin ran to a neighbor's hometo call police.

"I heard three shots, barn, barn, barn, and ascream," said neighbor Marie Godin. "It wasa horrible scream. Then there was completesilence. I heard a car leave, and I thought ananimal had been hit."

Randy Zuber, who called police, saidPamela Musladin sought refuge at his houseand told him her ex-husband had shot herboyfriend, kidnapped their son and was nowtrying to kill her.

"She was beating my door down,hysterical," Zuber said. "She was hoping herboyfriend wasn't dead."

Officers who arrived at the scene quicklybroadcast the description of Musladin's car,including the license plate and the directionhe was heading.

Lt. Tom Wheatley, who was in an unmarkedcar, heard the description and saw Musladintraveling east on Capitol Expressway atTuers Road.

Wheatley followed Musladin ontosouthbound Highway 101 and arrested himwithout incident. Inside the car was the gunthat investigators believe was used in thekilling. The child was unharmed.

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Ornaski v. Belmontes

(05-493)

Ruling Below: (Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), cert granted 126 S.Ct.1909, 74 USLW 3260, 74 USLW 3617, 74 USLW 3612 [2006]).

Belmontes was convicted of murder and sentenced to death in the California state courts. Herequested habeas relief in the United States District Court for the Eastern District of Californiabecause the jury was not instructed to consider his mitigating evidence as to whether he wouldadapt well to life in prison without parole. His petition was denied by the District Court, butapproved by the Ninth Circuit Court of Appeals. The Ninth Circuit held in part that theinstruction was insufficient to satisfy the Eight Amendment requirement that the jury considerand weigh all mitigating evidence presented by the defendant, and that the instructional error wasnot harmless. Circuit Judge O'Scannlain concurred in part and dissented in part.

Questions Presented: Does Boyde confirm the constitutional sufficiency of California's"unadorned factor (k)" instruction where a defendant presents mitigating evidence of hisbackground and character which relates to, or has a bearing on, his future prospects as a lifeprisoner? Also, does the Ninth Circuit's holding, that California's "unadorned factor (k)"instruction is constitutionally inadequate constitute a "new rule" under Teague v. Lane, 489 U.S.288 (1989)?

Fernando BELMONTES, Jr.,Petitioner, Appellant,

V.

Jill L. BROWN, Warden,Respondent, Appellee


Decided July 15, 2005

[Excerpt: some footnotes and citations omitted]REINHARDT, Circuit Judge:

I. PREAMBLE

On July 15, 2003, we filed an opinion in thiscase holding that there is a reasonableprobability that as a result of instructionalerror the jury did not considerconstitutionally mitigating evidence at the

penalty phase. . . . The warden timelypetitioned the Supreme Court for a writ ofcertiorari. On March 28, 2005, the SupremeCourt granted the writ, vacated ourjudgment, and remanded the case "forfurther consideration in light of Brown v.Payton.

Upon careful consideration, we conclude

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that Payton does not affect our holding inthe present case. Notwithstanding thesimilarity of the factual and legal issues,Payton was a post-AEDPA case and wasdecided under the highly deferentialAEDPA standard, while the case before us ispre-AEDPA and is determined by theapplication of the ordinary rules ofconstitutional interpretation. . . .

II. INTRODUCTION

In this pre-AEDPA death penalty case,Petitioner Fernando Belmontes, Jr., appealsthe district court's denial of his petition forwrit of habeas corpus. Because the jury wasnot instructed that it must considerBelmontes' principal mitigation evidence,which tended to show that he would adaptwell to prison and would likely become aconstructive member of society ifincarcerated for life without possibility ofparole, and because there is a reasonableprobability that the instructional erroraffected the jury's decision to impose thedeath penalty on Belmontes, we grant thepetition with respect to the penalty phase.We reject, however, those claims that seekrelief from the judgment of conviction andthe finding of special circumstances.Accordingly, we affirm the district court'sdecision in part, reverse in part, and remandwith instructions to issue a writ vacating thedeath sentence.

III. FACTUALBACKGROUND

AND PROCEDURAL

[The court provided in-depth details of theevidence of Belmontes' guilt presented attrial.]

C. The Penalty Phase

At the penalty phase, the prosecutionintroduced minimal aggravating evidence...

. . . Ron Cutler, a California YouthAuthority ("CYA") counselor, testified thathe once observed Belmontes swinging achair as if he were about to hit another ward,but Cutler was able to intervene before afight ensued. On cross examination, headmitted that Belmontes was significantlysmaller than the other youth.

Barbara Murillo testified about a domesticviolence incident that occurred when sheasked Belmontes to move out of their sharedapartment and to give her his keys so hecould not come back....

Finally, the prosecution and defensestipulated that Belmontes entered a plea ofno contest in April 1979 to a charge of beingan accessory after the fact to voluntarymanslaughter. The court refused to allow theprosecutor to introduce evidence thatBelmontes had actually murdered the victim,Jerry Howard. Consequently, the jury neverheard any details of the murder orBelmontes' alleged role in it.

Belmontes' mitigation presentation was alsolimited in scope, focusing on two themes:his family and personal history and hiscapacity for rehabilitation and positiveinstitutional adjustment. It was primarily thelatter theme that defense counsel pressedupon the jury.

Belmontes' family history was one ofpoverty and violence....

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The state agrees that Belmontes' counsel,John Schick, presented "substantialevidence" in support of this theme in theform of a series of witnesses who testified toBelmontes' behavior and achievementsduring his prior CYA incarceration and tothe likelihood that he would make positivecontributions to the welfare of others if hislife was spared. Belmontes himself testifiedthat he was in the custody of the YouthAuthority from early 1979 until November1980, four months prior to the crime. Whileat the CYA, he was employed on the firecrew at the Pine Grove Camp for one year,during which he worked his way up fromlast man to number two, a position ofleadership and responsibility. Belmontesalso testified that during his incarceration hebecame involved in the M-2 Christiansponsorship program. He admitted that heinitially entered the M-2 program as a wayto get out of camp, but he explained that hewas touched by the decency of his M-2family, the Haros, and so gradually becamecurious about Christianity and embraced it.

The Reverend Dale Barrett, chaplain at theYouth Authority's Pine Grove Facility,testified that he knew Belmontes from hisparticipation in the M-2 Christiansponsorship program, which matched a localchurch-going family with a ward. . . . Barrettfelt that, unlike the many wards who stayedin the program only to get out of camp andmanipulate favors from the sponsoringfamilies, Belmontes had not "conned" them.

Don Miller, assistant chaplain at the YouthAuthority's Preston Facility ... believed thatif Belmontes were committed to prison for a

life term, he would be good at counselingother prisoners not to make the samemistakes that he had.. . .

Finally, several witnesses offered evidencewith respect to Belmontes' conversion toChristianity, which occurred during his firstCYA incarceration, and his failure tomaintain his religious commitment upon hisrelease. . . .

At the conclusion of the evidentiary stage,the court permitted Belmontes to address thejury personally during closing arguments.Belmontes stated that he did not think thathis difficult childhood excused his role inthe McConnell murder. However, heexplained that he could not handle thepressures of life outside of an institution,and he asked the jury to give him "anopportunity to achieve goals and try to better[him]self." Belmontes' attorney similarlystressed that Belmontes could not "make iton the outside." He argued that Belmonteshad had a hard life but still retained hishumanity. He characterized Belmontes assomeone who thrived in a structuredenvironment-as evidenced by hisaccomplishments while in the CYA-andasked the jury to spare Belmontes' life onthe ground that he would make positivecontributions if allowed to live out hisnatural life in prison.

[The judge instructed the jury to considerBelmontes' age, criminal history, and anyother circumstance which mitigates thecrime, but without specifically instructingthe jury to consider Belmontes' ability toadjust to life in prison]

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D. Post-TrialVII. PENALTY PHASE ISSUES

[The court recounted the post-trialprocedural history of the case]

IV. STANDARD OF REVIEW

Because Belmontes filed his habeas petitionprior to AEDPA's effective date, we applypre-AEDPA standards of review. State courtfactual findings are presumed correct unlessone of eight enumerated exceptions applies.The application of law to historical facts isreviewed de novo.

V. GUILT PHASE ISSUES

[The court considered and rejected thedefendant's claims arising from the guiltphase of the trial, including deprivation ofdue process through failure to disclose theprosecuter's dismissal of several of Bolanos'misdemeanor charges, prosecutor's failureto correct an incorrect statement by Bolanos,conflict of interest for council, admission ofan involuntary statement, council's failure tochallenge the arrest warrant, crossexamination regarding post-arrest silence,restriction of cross examination, evidentiaryerrors, instructional error, jury which did notcompose a fair cross section of thecommunity, and jury misconduct.]

VI. SPECIAL CIRCUMSTANCES ISSUES

[The court considered and rejected thedefendant's claims arising from specialcircumstances, including racialdiscrimination and arbitrariness in charging]

A. Instructional Error

Belmontes contends that the trial judge'sinstructions to the jury prevented it fromconsidering nonstatutory mitigatingcircumstances relating to the likelihood thathe would live a constructive life in prisonand make positive contributions to others ifgranted life without the possibility of parole.Because we conclude that there is areasonable probability that as a result ofinstructional error the jury did not considerconstitutionally relevant mitigatingevidence, and because we believe that theerror was not harmless, we grant the petitionwith respect to the sentencing phase.

1. Factual Background

At Belmontes' trial, the judge gave the jurythe then-standard model jury instructions ...

The judge also gave the jury half of asupplemental instruction requested by thedefense. The part that was given read:

[T]he mitigating circumstances which I haveread for your consideration are given to youmerely as examples of some of the factorsthat you may take into account as reasonsfor deciding not to impose a death penalty ora death sentence upon Mr. Belmontes. Youshould pay careful attention to each of thesefactors. Any one of them standing alone maysupport a decision that death is not theappropriate punishment in this case.

The other half of the instruction, which thetrial judge refused to give, stated: "[Y]oushould not limit your consideration ofmitigating circumstances to these specific

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factors. You may also consider any othercircumstances as reasons for not imposingthe death sentence."

After several hours of deliberations, the jurysent the judge a note asking, "What happensif we cannot reach a verdict?" and "Can themajority rule on life imprisonment?" Thejury was brought back to the courtroom, andthe judge reread a portion of the juryinstructions, emphasizing that "all 12 jurorsmust agree, if you can." The jurors askedagain what would happen if they could notagree, but the court refused to tell them.

The judge asked the jury: "Do you think if Iallow you to continue to discuss the matterand for you to go over the instructions againwith one another, that the possibility ofmaking a decision is there?" The jurorsagreed that they needed more time todeliberate. They then asked the followingseries of questions:JUROR HERN: The statement about theaggravation and mitigation of thecircumstances, now, that was the listing?THE COURT: That was the listing, yes,ma'am.JUROR HERN: Of those certain factors wewere to decide one or the other and thenbalance the sheet?THE COURT: That is right. It is a balancingprocess. Mr. Meyer?JUROR MEYER: A specific question,would this be an either/or situation, not aone, if you cannot the other [ sic]?THE COURT: No. It is not that.JUROR MEYER: It is an either/or situation?THE COURT: Exactly. If you can make thateither/ or decision. If you cannot, I willdischarge you.JUROR HAILSTONE: Could I ask aquestion? I don't know if it is permissible. Isit possible that he could have psychiatrictreatment during this time?

THE COURT: That is something you cannotconsider in making your decision.

2. Discussion

The California death penalty statute has aunique mechanism for guiding the jury'sdiscretion. Instead of separate sets ofaggravating and mitigating circumstances,the statute features an eleven-factor testwhich focuses the jury's attention on thespecifics of the crime and the backgroundand character of the defendant. The first tenfactors instruct the jury to evaluate variouscircumstances of the crime and thedefendant's age and prior convictions. Thejury itself decides whether these factors areaggravating or mitigating. The eleventhfactor-factor (k)-is intended to function as acatch-all that will enable the jury to considerany relevant mitigating circumstance thatthe defendant proffers as a basis for asentence less than death. The jury isobligated to weigh and balance theaggravating and mitigating circumstancesand must impose the death penalty if itdetermines that the circumstances inaggravation outweigh those in mitigation.In this statutory scheme, the importance offactor (k) cannot be overstated. The EighthAmendment requires that a capital juryconsider all relevant mitigating evidenceoffered by the defendant and afford it suchweight as it deems appropriate. This broadmandate includes the duty to considermitigating evidence that relates to adefendant's probable future behavior,especially the likelihood that he would notpose a future danger if spared butincarcerated. Factor (k) provides the onlymechanism for allowing the jury to considera substantial portion of many defendants'mitigating evidence-indeed, all mitigatingevidence that does not relate to thecircumstances of the crime or the

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defendant's age and criminal record.

To pass constitutional muster, the trialjudge's instructions must convey to the jurythat factor (k) compels it to consider allrelevant mitigating evidence proffered bythe defendant as a basis for a sentence lessthan death. "[I]t is not enough simply toallow the defendant to present mitigatingevidence to the sentencer." Rather, the trialjudge's instructions must convey "that thesentencer may not be precluded fromconsidering, and may not refuse to consider,any constitutionally relevant mitigatingevidence."

At the time of Belmontes' trial, factor (k)allowed the jury to consider "[a]ny othercircumstance which extenuates the gravityof the crime even though it is not a legalexcuse for the crime." The Supreme Courthad occasion to review this language inBoyde v. California. In Boyde, the defendanthad argued that the jury instruction wasunconstitutional because there was areasonable likelihood that the jury wouldconstrue the instruction as forbidding it fromconsidering evidence unrelated to the crime-e.g., mitigating evidence relating to thedefendant's background and character.However, the Supreme Court held thatbecause of the view "long held by society"that a defendant with a disadvantagedbackground or emotional or mentalproblems may be "less culpable thandefendants who have no such excuse," thejury was reasonably likely to haveunderstood that the defendant's evidence of"his impoverished and deprived childhood,his inadequacies as a school student, and hisstrength of character in the face of theseobstacles" could have "extenuate[d] thegravity of the crime even though it [wa]s nota legal excuse for the crime." The Courtheld that, because the trial judge instructed

the jury that it " shall consider all of theevidence which has been received duringany part of the trial of this case," there wasno reasonable likelihood that the jurybelieved that factor (k) prevented it fromconsidering the background and characterevidence introduced by Boyde and itsbearing on Boyde's commission of thecrime. In other words, the Supreme Courtheld that the unadorned factor (k), at leastwhen accompanied by an appropriateclarifying instruction, was constitutional asapplied to mitigating evidence relating to thedefendant's psychological make-up andhistory, which practically, if not legally,bore upon his commission of the crime andwas offered for the purpose of reducing hisculpability for the offense.

The same type of evidence, however, canserve an alternative forward-lookingpurpose, mitigating in a manner whollyunrelated to a petitioner's culpability for thecrime he committed. This alternativepurpose has nothing to do with persuadingthe jury that the defendant is less culpablewith respect to the crime because of someaspect of his family background, personalhistory, character, or mental capacity.Rather, as defined by the Supreme Court inSkipper v. South Carolina, the jury must"consider[ ] a defendant's past conduct asindicative of his probable future behavior"and "draw[ ] favorable inferences" about adefendant's "probable future conduct ifsentenced to life in prison." . . .

Belmontes contends that his Eighth andFourteenth Amendment rights were violatedbecause the trial judge's instructions failedto advise the jury to consider the portion ofhis mitigating evidence that tended to showthat he would adapt well to prison andwould become a constructive member ofsociety if granted a life sentence. We review

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this claim of instructional error under theapproach set forth by the Supreme Court inBoyde, which directs us to determinewhether there is a reasonable likelihood thatthe jury understood the instruction in amanner that resulted in its failure to considerconstitutionally relevant evidence. AlthoughBelmontes' briefs emphasize the trial judge'smid-deliberation colloquy with Juror Hem,the Court has held that we must examineclaims of instructional error in light of therecord as a whole. Accordingly, in assessingBelmontes' claim of instructional error, weconsider the entire mid-deliberationcolloquy as well as the original juryinstructions.

We begin with the original instructions. Asstated above, Belmontes' jury was instructedto consider and take into account "[a]nyother circumstance which extenuates thegravity of the crime even though it is not alegal excuse for the crime." Most naturallyread, this instruction allows the jury toconsider evidence that bears upon thecommission of the crime by the defendantand excuses or mitigates his culpability forthe offense. We now know that suchevidence includes background and character,both of which tend to explain why thedefendant committed the crime. By its plainlanguage, however, the instruction does notencompass events or considerations that areunrelated to the defendant's culpability. Inparticular, the instruction does not apply tothose forward-looking considerationsencompassed by the Supreme Court'sdecision in Skipper: evidence that allows thejury to evaluate the defendant's probablefuture conduct if incarcerated for lifewithout the possibility of parole-specifically,evidence that would tend to prove thatBelmontes would likely live a constructivelife if permanently confined within astructured prison environment. These

important sentencing considerations aresimply not in any respect "circumstance [s]that extenuate[ ] the gravity of the crime."Moreover, unlike in Boyde, "society" hasnot had a "long held view" that a defendant'slikely future conduct can serve to mitigate orexcuse his commission of a serious crime.Rather, the doctrine is a legal conceptpeculiar to capital punishment cases. Thus,in the absence of a clear instruction on point,jurors are not likely to be aware indetermining the appropriate punishment insuch cases that the defendant's potential fora positive adjustment to life in prisonconstitutes a proper mitigating factor.

In the current case, the most important partof Belmontes' mitigation presentation wasthat the jury should spare his life because hehad the potential, if confined within a prisonsetting, to contribute positively to prisonlife. Although the record made before thejury included a substantial amount ofevidence about his difficult childhood, in hisown testimony he repeatedly stated that hedid not want to use his rough childhood "asa crutch" or an excuse. Thus, ultimately themore significant evidence related to hisconduct during the period of his prior CYAincarceration and to his ability to conformhis behavior to societal norms should he beconfined within a structured prisonenvironment. Belmontes' counsel argued tothe jury that the evidence demonstrated thatif granted life without parole, he wouldadapt well to prison life, would make apositive contribution to the welfare ofothers, and would not pose a future dangerto the guards or the other inmates.

Unlike the background and characterevidence in Boyde that tended to mitigatethe offense, Belmontes' mitigation evidencewas simply not covered by any naturalreading of the words of the unadorned factor

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(k) instruction. To the contrary, thatinstruction, read most naturally, suggested tothe reasonable juror that Belmontes'evidence tending to show his probable futuregood conduct should be excluded fromconsideration, and thus that such evidencewas governed by the earlier instruction thatthe jury "consider all of the evidence exceptas you may be hereafter instructed." At theleast, the unadorned factor (k) instruction isambiguous with respect to Skipper'srequirement that the jury be permitted toconsider and give effect to evidence bearingon a defendant's probable future goodconduct when it decides whether to imposethe death penalty, and thus with respect tothe jury's right to consider Belmontes' mostimportant mitigating evidence.

The court's supplemental instructions onlyexacerbated this problem. Belmontes'counsel had requested instructions thatwould have expressly instructed the jury thatit "should not limit [its] consideration ofmitigating circumstances to these specificfactors," i.e., the factors listed in the originalinstruction. However, although the trialjudge gave part of the instruction requestedby defense counsel, he refused to give themost critical portion. . . . A juror whofollowed these instructions would likelythink that he could not consider nonstatutorymitigating evidence-evidence not going toculpability-such as testimony tending toshow that Belmontes would lead aconstructive life if confined permanentlywithin a structured environment. Still, thesupplementary instructions did not end thematter.

Compounding the problems with theoriginal and supplemental instructions werethe trial judge's responses to the jurors'questions during the mid-deliberationcolloquy. .. .

Juror Hern's questions reveal that she did notunderstand that her duty as a juror was toconsider all of Belmontes' mitigatingevidence. . . . Juror Hem wantedconfirmation that there was a finite list offactors for the jury to consider and that thelist consisted of the statutory factors read tothe jury by the judge. This interpretation isreinforced by Juror Hem's next question:"Of those certain factors, we were to decideone or the other [e.g., whether the evidenceis aggravating or mitigating] and thenbalance the sheet?" The structure of thisquestion separates the "certain factors" thatappear in "the listing" from other factorsthat may not be reflected there. It makes itclear that at least one juror believed that thejury should consider, weigh, and balanceonly "those certain factors" that appeared in"the listing." Of course, such a belief wouldhave been incorrect; the jury was required toconsider and evaluate Belmontes' mitigatingevidence relating to his potential adjustmentto life in prison regardless of the fact that itwas not listed in the statute.

In any event, Juror Hern's questionssignified that she was not sure how to followthe judge's instructions. "When a jury makesexplicit its difficulties a trial judge shouldclear them away with concrete accuracy." . .. Instead, however, the judge simplyaffirmed Juror Hem's incorrect assumptionswith a terse, "That is right." In so doing, henot only failed to correct Juror Hern'serroneous view, but he likely left all thejurors with the impression that they couldconsider mitigation evidence only if itappeared as one of the "certain factors" in"the listing." As we have discussed,Belmontes' principal mitigating evidencedoes not fall in this category.

We need not rely on affirmative evidence of

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jury confusion in order to reach thisconclusion, however. "A trial judge's duty isto give instructions sufficient to explain thelaw, an obligation that exists independentlyof any question from the jurors or anyindication of perplexity on their part." Tohold otherwise would condition our abilityto redress serious constitutional violationson such subjective vagaries of fate aswhether the jurors happened to ask aquestion instead of embarking boldly downthe wrong path.

The trial judge also instructed the jury that itcould not consider a specific subject relatingto Belmontes' ability to adjust to prison life.Less than thirty seconds after Juror Hem'sinquiry, Juror Hailstone said: "Could I ask aquestion? I don't know if it is permissible. Isit possible that he could have psychiatrictreatment during this time?" The trial judgeresponded: "That is something you cannotconsider in making your decision." He didnot explain why the jury could not considerthis issue, and immediately after issuing thisresponse, he sent the jury off to resume itsdeliberations. The instruction not to considerpossible future psychiatric treatment wasmisleading because of the judge's failure toexplain to the jury why it could not considerthe prohibited subject; to the extent that thejury believed that it could not considermitigating evidence relating to howBelmontes might behave in a controlledprison environment, the instruction as givenwould likely have confirmed itsmisconception.

Juror Hailstone's question and the trialjudge's response are troubling because of thelikelihood that the jury understood them inthe context of the larger discussion abouthow to consider, weigh, and balanceaggravating and mitigating circumstances.... The trial judge's response thus likely

reinforced the jury's mistaken notion thatBelmontes' mitigation evidence relating tohis probable future good conduct if confinedin a structured prison environment wasirrelevant to the sentencing decision.

The next question is whether the trial judge'svarious instructions relating to limitations onthe evidence that could be considered had aneffect on the jury's deliberations. We maynot reverse the jury's penalty determinationunless the instructions actually created "areasonable probability that the jury hasapplied the challenged instruction in a waythat prevents the consideration ofconstitutionally relevant evidence."

We hold that there is a reasonableprobability that, as a result of the court'sinstructions, the jury in Belmontes' case didnot consider his principal mitigatingevidence. . . .

Having concluded that an error ofconstitutional magnitude infected thepenalty phase of Belmontes' trial, we turnfinally to the question whether that error wasnonetheless harmless. Belmontes cannotobtain a new trial unless the instructionalerror had "a substantial and injurious effect"on the jury's verdict. We hold that it did.

Our cases appear to be divided as to whetherthe petitioner, the state, or neither bears theresponsibility for showing harmless errorunder the Brecht harmless error standard.

In a recent case, we stated that "[t]heSupreme Court has made clear that whethera trial error had a substantial and injuriouseffect is not to be analyzed in terms ofburdens of proof." In that case, we furtherstated that the reviewing court has "theresponsibility to determine this legalquestion 'without benefit of such aids as

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presumptions or allocated burdens of proofthat expedite factfimding at the trial.' "However, O'Neal also stated that "it is theState that bears the 'risk of doubt.' " Also,as we said only recently, we look to theState to instill in us a "fair assurance" thatthere was no effect on the verdict....

Here we need not consider the issue ofburdens of proof any further. Regardless ofthe applicable rule, we are convinced thatthe instructional error in this case, whichprevented the jury from considering andgiving effect to Belmontes' most importantmitigation evidence, had a substantial andinjurious effect on the jury's verdict.. . .

CONCLUSION

. . . [B]ecause the trial judge failed toinstruct the jury that it was required toconsider Belmontes' principal mitigationevidence, and because we conclude that thisfailure had a substantial and injurious effectupon the verdict, we reverse with respect tothe sentencing phase. We remand to thedistrict court with instructions to issue anappropriate writ vacating Belmontes' deathsentence.

AFFIRMED in part, REVERSED in part,and REMANDED for issuance of the writ inaccordance with this opinion.

O'SCANNLAIN, Circuit Judge, concurringin part and dissenting in part.

The court properly affirms Judge Levi'sdetermination that there was noconstitutional error in Belmontes'sconviction for first-degree murder withspecial circumstances in state court. I ampleased to concur in its conclusions as to the

guilt phase. Regrettably, as to the penaltyphase, the majority strains mightily-andunpersuasively-to perceive constitutionalerror in the comprehensive and perfectlyproper jury instructions given by the statetrial judge. Because there simply is no sucherror, and the Supreme Court has expresslytold us so on two separate occasions, I mustrespectfully dissent from the court's reversalof the district court's denial of the petitionfor the writ with respect to the penaltyphase.

Over a decade ago, the Supreme Court inBoyde v. California, interpreted the samejury instruction at issue today, "factor (k),"and concluded that it was constitutionallysound. The Court held that there was no"reasonable likelihood that the jury applied[factor (k)] in a way that prevent[ed] theconsideration of constitutionally relevantevidence." Factor (k)'s constitutionality wasrecently reaffirmed in Brown v. Payton,where the Court again refused to invalidate adeath sentence imposed pursuant toinstructions that included factor (k). TheCourt reached that result even though theprosecutor had explicitly argued to thesentencing jury that factor (k) prohibitedthem from considering the defendant'smitigating evidence.

The majority nonetheless manages todistinguish Boyde and Payton, and reachesthe extraordinary conclusion that there was areasonable likelihood that the jury refused toconsider mitigating evidence that both theprosecution and the defense acknowledgedwas properly before it. Because the jurorswere not constitutionally barred frommaking a death penalty determination in thiscase, I would affirm.

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I

A

The majority's holding is based on the falsepremise that factor (k) limits the jury'sconsideration only to circumstances thatmight excuse the crime. But the SupremeCourt has already explicitly rejected thisproposition. In Boyde, the Court held thatfactor (k) did not "limit the jury'sconsideration to 'any other circumstances ofthe crime which extenuates the gravity ofthe crime.' [It directed the jury] to considerany other circumstance that might excusethe crime, which certainly includes adefendant's background and character."Boyde makes it perfectly clear thattestimony relating to a defendant's pre-crimebackground and character is within the jury'spurview under factor (k).

Belmontes's penalty phase presentation wasentirely composed of such evidence. Thewitnesses who testified on his behalf spoketo his religious convictions and his behaviorwhile a ward of the California YouthAuthority ("CYA")-all of which goes to hisbackground and character before hemurdered Steacy. While the majorityattempts to paint such evidence as showingthat he would be a model inmate ifsentenced to life in prison, the testimony asactually presented deals exclusively with hischaracter prior to the crime. In fact, not onewitness who testified during the penaltyphase testified to Belmontes's behavior afterthe murder.

Belmontes's religious conversion and abilityto conform to prison are exactly the types ofevidence that the Supreme Court held fitwithin the plain language of factor (k).

Accordingly, under Boyde, the jury was ableto consider and to give effect to all ofBelmontes's mitigating evidence. Nothingmore was constitutionally required.

Even so, the Supreme Court has held thatinquiry into future dangerousness of adefendant "is not independent of anassessment of personal culpability." InJohnson, the Court held that an instructionthat asked jurors to consider the futuredangerousness of a defendant providedample opportunity for the jury to considerthe defendant's youth as mitigatingevidence. Even though the statutory factordid not explicitly provide that the jury couldconsider the defendant's youth as amitigating factor for culpability of the crime,the Court concluded that there was noreasonable likelihood that the jury wouldhave thought it was foreclosed fromconsidering it.

Likewise, because factor (k) allows the juryto consider Belmontes's character andbackground, there is no reason to think thatthe jury would have thought it wasforeclosed from using such information toconsider his future potential if sentenced tolife in prison. As the Supreme Court hasnoted, "Consideration of a defendant's pastconduct as indicative of his probable futurebehavior is an inevitable and not undesirableelement of criminal sentencing."

Thus, while the majority scours the coldrecord decades after the trial to find anambiguity in the sentencing instruction, it ishighly doubtful that the jury itself wouldhave so found. "Jurors do not sit in solitaryisolation booths parsing instructions forsubtle shades of meaning in the same waythat lawyers might." I see no reason why thejury would have resisted the inevitableconsideration of Belmontes's future potential

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in light of the character evidence presented.

B

The majority also ignores the SupremeCourt's advice that "[d]ifferences ininterpretation of instructions may bethrashed out in the deliberative process, withcommonsense understanding of theinstructions in light of all that has takenplace at the trial likely to prevail overtechnical hairsplitting." That factor (k)permits the consideration of Belmontes'scharacter evidence is amplified when thepenalty phase is viewed as a whole,particularly in light of the arguments madeby counsel.

In Payton, the prosecutor explicitly arguedduring the penalty phase that factor (k) didnot permit the jury to consider evidence ofthe defendant's post-crime religiousconversion. Notwithstanding the trial judge'sfailure to correct this misstatement of law,the Supreme Court concluded that habeasrelief was not warranted because it wasimprobable that the sentencing jury wouldhave disregarded the two days of mitigatingevidence presented by the defense. Incontrast, during the penalty phase ofBelmontes's trial, both the prosecutor andthe defense attorney urged the jury toconsider the mitigating evidence, and thetrial court likewise instructed the jury toconsider all the evidence unless directedotherwise. The majority neverthelessconcludes that the jury likely misunderstoodits sentencing task after repeatedly receivingthe same unambiguous directions from theprosecutor, the defense attorney, and thecourt.

The jury heard, without objection, evidenceregarding Belmontes's behavior in prisonbefore the murder: how he had found God

and how he could serve as an example toother inmates. In its closing argument, theprosecution stated, "I suspect you will betold that the defendant's religious experienceis within that catchall [factor (k)] that relatesto the defendant at the time he committedthe crime, extenuates the gravity of thecrime. I'm not really sure it fits in there. I'mnot sure it really fits in any of them." Evenso, the prosecutor noted, "But I think it[Belmontes's religious experience] appearsto be a proper subject of consideration."

Later the prosecutor expounded on why thejury should consider Belmontes's evidence:I suppose you can say it would beappropriate [to consider such evidence]because-in this fashion: The defendant maybe of value to the community later. Yourecall the people talking about how hewould have the opportunity to work withother prisoners in prison. And I think thatvalue to the community is something thatyou have to weigh in. There's something tothat.

"[Factor] K" says any other circumstancewhich extenuates or lessens the gravity ofthe crime. What does that mean? That to memeans some fact-okay?-some factors at thetime of the offense that somehow operates toreduce the gravity for what the defendantdid. It doesn't refer to anything after the factor later. That's particularly important herebecause the only defense evidence you haveheard has been about this new bornChristianity.

What I am getting at, you have not heardduring the past few days any legal evidencemitigation. What you've heard is just somejailhouse evidence to win your sympathy,and that's all. You have not heard anyevidence of mitigation in this trial.

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Belmontes's pleas were similar. Belmontesasked for life in prison because in prison"there is an opportunity to achieve goals andtry to better yourself." His counselcontinued the argument, asking the jury tospare Belmontes's life because he wouldmake a positive contribution if his life werespared: "[W]hat I am suggesting to you andwhat I hope the evidence suggests to you isFernando Belmontes cannot make it on theoutside. I think it is pretty clear from thedevelopment he undertook, the kind ofexperiences he had with the Haros ascompared with his being placed out on hisown." He added:

The people who came in here told you abouthim. They told you not only what they knowof him, but they gave you, as best theycould, under the very difficult circumstancesof somebody looking at the rest of their lifein prison, a game plan, something he can dowith his life, something he's been able to do.We're just suggesting the tip of the icebergbecause who knows in 20, 30, 40, 50 yearswhat sorts of things he can do, as he fits intothe system, as he learns to set his goals, tocontribute something in whatever way hecan.

At no time did the prosecutor object to thedefense's characterization, nor did the trialjudge indicate that the parties' statements oflaw were not correct or that the jury couldnot consider any of the evidence.Nevertheless, the majority concludes that thejury thought that the witnesses wasted theirtime by testifying, and that the prosecutor,Belmontes, and Belmontes's lawyer werenot smart enough to realize they were allmistaken. In its world, the majorityenvisions a jury playing a game of "gotcha"with the lawyers, whereby the jury ignoreseveryone and applies its own instructions.Such a conclusion is pure fantasy and cannot

justify overturning the jury's choice here.

II

Even assuming, arguendo, that there was areasonable likelihood that the jury couldhave interpreted factor (k) to prohibitconsideration of Belmontes's characterwitnesses, the instructions were stillconstitutionally sufficient. To arrive at itsresult, the majority downplays the trialcourt's initial instruction, in which the jurywas told, "In determining which penalty isto be imposed on the defendant you shallconsider all of the evidence which has beenreceived during any part of the trial of thiscase, except as you may be hereafterinstructed." Such a jury instruction alone isconstitutionally sufficient to convey to thejury its duty to consider all mitigatingevidence.

The trial court's duty is simply to convey tothe jury that all mitigating evidence must beconsidered and may be given effect when itdeliberates on a defendant's capital sentence.The absence of any specific instruction tothe jury to consider the defendant's ability toadjust to an institutional setting is utterlyirrelevant.

Even if the jury were confused by thesubsequent enumeration of individualfactors-perhaps thinking that itsconsideration of mitigating evidence waslimited to such factors-the confusion wouldhave been short lived. After reading theenumerated factors, the court instructed,"[T]he mitigating circumstances which Ihave read for your consideration are given toyou merely as examples of some of thefactors that you may take into account asreasons for deciding not to impose a deathpenalty or a death sentence upon Mr.Belmontes." The majority, however, fixates,

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not on the clear language of such directive,but on the two sentences that directlyfollow: "You should pay careful attention toeach of these factors. Any one of themstanding alone may support a decision thatdeath is not the appropriate punishment inthis case." According to the majority, thesesentences somehow obfuscate the clarity ofthe court's instructions.

We must look at these instructions in theirentirety, however.

The trial court's additional instructionreinforced the constitutional requirement ofconveying to the jury that it is "not ...precluded from considering, and may notrefuse to consider, any constitutionallyrelevant mitigating evidence." Instead ofconfusing the jury, the trial court'sinstructions made it clear that all evidencethat was presented must be considered.Moreover, the instruction 8362 that themajority concludes was "critical"substantively adds nothing. Rather thanspeculating that the jury was too dim tounderstand what it was told by the court, wemust presume that the jury understood theinstructions taken as a whole.

III

According to the majority, however, it is theseries of questions between individual jurorsand the judge that proves the jury'sconfusion. After the jury deliberated forseveral hours, it sent the judge a note asking,"What happens if we cannot reach averdict?" and "Can the majority rule on lifeimprisonment?" The judge refused to tell thejury what would happen if they could notagree, but told them that it would dischargethem if they could not reach an agreement.

He then asked, "Do you think if I allow youto continue to discuss the matter and for youto go over the instructions again with oneanother, that the possibility of making adecision is there?"

At this time, individual jurors asked thejudge some questions.

JUROR HERN: The statement about theaggravation and mitigation of thecircumstances, now, that was the listing?THE COURT: That was the listing, yes,ma'am.JUROR HERN: Of those certain factors wewere to decide one or the other and thenbalance the sheet?THE COURT: That is right. It is a balancingprocess.JUROR HAILSTONE: Could I ask aquestion? I don't know if it is permissible. Isit possible that he could have psychiatrictreatment during this time?THE COURT: That is something you cannotconsider in making your decision.

In the majority's view, Juror Hem's use ofthe term "listing," and the judge's failure tonote that the "listing" was not exclusive asto mitigating circumstances, shows thatindividual jurors were confused by theinstruction. I respectfully disagree. The jurydid not submit a formal question to the judgeto indicate that it was confused as to itsduties or the instructions, and no informalfollow-up questions were asked by anyjurors. And while the answers the judgegave the juror might have been cryptic, theywere not incorrect

Most importantly, just before the judgeanswered these informal questions, he askedthe jury "to go over the instructions again."Under existing Supreme Court authority,any confusion with regard to its

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responsibilities would have been cleared upwith another such review. And if, afterreviewing the instructions once again, jurorswere still confused about the evidence theycould consider, they likely would haveasked for a formal clarification. While it ispossible that after reviewing the instructionsagain, confusion might have arisen, it wascertainly not reasonably likely.

Incredulously, the majority also takes issuewith Juror Hailstone's question regardingwhether Belmontes could receive psychiatrictreatment while in prison. The courtproperly instructed the jury that it could notconsider such potentially mitigatingevidence. And for good reason: no suchevidence was ever introduced at any stage ofthe trial. Indeed, the jury was prohibitedfrom such considerations.

There was absolutely nothing wrong withthe trial judge's instruction that the jurycould not consider evidence that was notpresented; indeed, it would have beenunconstitutional for him to have saidotherwise. Yet, the majority ignores suchniceties. If the jury were truly confused bythe judge's answer, surely it would haveasked a follow-up question of some sort.Nonetheless, without any basis in the record,the majority concludes that the judge'sperfectly proper statement was likely toconfuse.

IV

The majority concludes that the jurorslistened to all the evidence regarding

Belmontes's character, listened to theprosecution and the defense tell it toconsider such evidence, and listened to thetrial court tell it that it must consider all theevidence presented; yet the majority holdsthat the jury was confused about whether itcould consider the evidence presented. Suchconclusion, with all due respect, is simplybeyond belief; such holding turns the entireproceeding "into a virtual charade."

The jury, in reality, returned a deathsentence for Belmontes, not because of aconfusing jury instruction, but because hemurdered nineteen-year-old SteacyMcConnell in cold blood, striking her 15-20times in the head with an iron dumbbell hehad brought with him to her house in case ofsuch an encounter; I sincerely doubt thefamily and friends of Steacy would share themajority's callous view that her murder wasnot "especially heinous."

By concluding that the trial court's juryinstructions were unconstitutional, themajority ignores the "strong policy againstretrials years after the first trial where theclaimed error amounts to no more thanspeculation." There is nothing in the recordwhich would lead me to believe that therewas a reasonable probability that the jurywas confused about its sentencing duties;therefore I would affirm the denial of thepetition for the writ as to the penalty phase. Imust respectfully dissent from the majority'srefusal to do so.

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"THE NATION; Voided Death Sentence to Be Reconsidered"

Los Angeles TimesMay 2, 2006

David G. Savage

The Supreme Court agreed Monday to hearanother appeal by California prosecutorswho are challenging a decision by the U.S.9th Circuit Court of Appeals that voided adeath sentence in a 25-year-old murder case.

In 1981, Fernando Belmontes broke into awoman's home in the San Joaquin Valley.He clubbed her, broke her skull and stole herstereo. He described the crime to twoaccomplices, and then sold the stereo.

Belmontes was convicted of first-degreemurder with special circumstances, makinghim eligible for a death sentence.

In the trial's penalty phase, prosecutorsdescribed Belmontes' previous crimes,which included severely beating hispregnant girlfriend a month before themurder. The defense argued that his earlylife had been troubled, and noted that he hadresponded well during a commitment in aCalifornia Youth Authority facility and had"wholesome relationships" with friends andfamily members.

After the testimony, the judge gave thejurors standard instructions telling them toconsider as mitigating evidence thedefendant's age, criminal history and any"other circumstance which extenuates thegravity of the crime even though it is not alegal excuse for the crime." He did not givethem an instruction the defense hadrequested: that "you should not limit yourconsideration of mitigating circumstances tothese specific factors. You may also

consider anyreasons forsentence."

othernot

circumstances ... asimposing the death

The jury voted in favor of a death sentencefor Belmontes.

The California state courts upheld hisconviction and sentence, as did a federaljudge. When the case reached the 9thCircuit, Judges Stephen Reinhardt andRichard A. Paez voted to reverse the deathsentence.

"There is a reasonable probability,"Reinhardt wrote, that the jurors were "notlikely to be aware ... that the defendant'spotential for a positive adjustment to life inprison constitutes a proper mitigatingfactor." Had they been aware of this, theymay have spared Belmontes, he said.

Judge Diarmuid F. O'Scannlain dissentedfrom the three-judge panel's ruling. Sevenother judges-short of the neededmajority-called on the full 9th Circuit toreverse the ruling.

California Atty. Gen. Bill Lockyer appealedto the Supreme Court, saying "no reasonablejuror" would have thought he or she wasprohibited from voting to spare Belmontes'life.

Last year, when the state appealed for thefirst time, the Supreme Court told the 9thCircuit to reconsider the case under a recentruling that had restored a death sentence in

217

an Orange County case. But the 9th Circuitsimply reaffirmed its ruling.

Lockyer appealed again on behalf of San

Quentin State Prison Warden StevenOrnoski. This time, the Supreme Court saidit would rule in the case of Ornoski vs.Belmontes.

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"Appeals Court Overturns Death Sentence; U.S. 9th Circuit blocks man's execution for asecond time after being told by Supreme Court to reconsider the first decision it made in

2003."

Los Angeles TimesJuly 16, 2005

Henry Weinstein

For the second time, a federal appeals courtin San Francisco has overturned the deathsentence of a man who has spent more thantwo decades on death row for beating awoman to death with an iron bar.

In recent years, the U.S. 9th Circuit Court ofAppeals has toppled more than a dozenCalifornia death sentences, on someoccasions drawing rebukes from theSupreme Court.

On Friday, the 9th Circuit overturned thedeath penalty for Fernando Belmontes, 44.

He was 19 when he and two other youngmen went to the home of Steacy McConnellin Victor, Calif., just east of Lodi, to stealher stereo in the aftermath of an argumentover drugs, according to trial testimony.McConnell's parents later found theirdaughter lying in a pool of blood.

In mitigation, the defenseevidence that Belmontes hadhistory of poverty and violence.

presenteda family

The 9th Circuit first blocked Belmontes'execution in 2003, ruling that the trial judgehad failed to instruct the jury to consider allmitigating evidence before deciding onexecution.

On March 28, the Supreme Court vacatedthe decision and directed the court toreconsider its ruling in light of a decision a

week earlier. That case concerned OrangeCounty murderer William Payton, whoraped and stabbed to death a Garden Grovewoman in 1980. Payton had argued that histrial judge failed to instruct the jury toconsider his behind-bars conversion toChristianity.

In Payton's case, the high court noted thatCongress in 1996 changed the law to saythat federal judges should defer to statecourts' reasonable judgments in deathpenalty cases.

The 9th Circuit, however, ruled Friday thatBelmontes' case was different because hefiled his challenge before the 1996 law wasenacted. Consequently, the state courtrulings were due less deference, the courtsaid, and it was appropriate to overturn thedeath penalty because of the judge's failureto issue the mitigation instruction.

The ruling was written by Judge StephenReinhardt, an appointee of President Carterwho is one of the court's most consistentskeptics about the validity of deathsentences. Judge Richard A. Paez, a Clintonappointee, joined Reinhardt's opinion. JudgeDiarmuid F. O'Scannlain, a Reaganappointee who consistently votes to upholddeath sentences, issued a strong dissent, justas he did two years ago.

"The majority strains mightily-andunpersuasively-to perceive constitutionalerror in the comprehensive and perfectly

219

proper jury instructions given by the statetrial judge," O'Scannlain wrote. "Becausethere simply is no such error, and theSupreme Court has expressly told us so ontwo separate occasions, I must respectfullydissent."

Mill Valley attorney Eric Multhaup, who

has represented Belmontes in appeals for 23years, called the ruling "really good news."

The California attorney general's office hadno immediate comment. The office almostalways asks the Supreme Court to review acase when the 9th Circuit overturns a deathsentence.

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"California; U.S. Appeals Court Voids Death Penalty in '81 Killing"

Los Angeles TimesJuly 16, 2003

Henry Weinstein

A federal appeals court Tuesday overturnedthe death sentence of a man who has spent21 years on death row for beating a womanto death with an iron bar, ruling that thejudge at his trial violated his constitutionalrights by not fully instructing the jury toconsider all possible mitigating evidencebefore passing sentence.

The ruling was the 12th by the U.S. 9thCircuit Court of Appeals in the last year anda half that either reversed a death sentenceor upheld the decision of a federal trial judgewho had overturned a death sentence in aCalifornia case. Two of those rulings havebeen overturned by the U.S. Supreme Court.The 9th Circuit has upheld four Californiadeath sentences in the same period.

Tuesday's 2-1 decision was written by JudgeStephen Reinhardt, a Jimmy Carterappointee who is one of the court's mostconsistent skeptics about the validity ofdeath sentences. He was jointed by JudgeRichard A. Paez, a Clinton appointee. JudgeDiarmuid O'Scannlain, a Ronald Reaganappointee who consistently votes to upholddeath sentences, issued a strong dissent.

The 42-year-old defendant, FernandoBelmontes Jr., was 19 when he and twoother young men went to the home of SteacyMcConnell in Victor, just east of Lodi in1981, intending to steal her stereo in theaftermath of an argument over drugs,according to testimony in his trial.

One of Belmontes' accomplices, who said hewas the lookout at the robbery and made a

plea bargain with prosecutors, testified thatBelmontes entered the home, not expectingto find McConnell. He emerged shortlyafterward spattered with blood and sayingthat he had needed to "take out a witness."

McConnell's parents found their daughterlying in a pool of blood. An autopsydetermined that her skull had been shatteredby 15 to 20 blows.

After finding Belmontes guilty, jurors heardextensive testimony about Belmontes'background before deliberating six hoursand voting in favor of a death sentence.

Belmontes' conviction and his deathsentence were upheld by the CaliforniaSupreme Court and a federal district courtjudge.

The 9th Circuit upheld the conviction buttoppled the death sentence in a lengthyopinion.

The key issue for the court involved theinstructions that the judge at Belmontes' trialgave to jurors about how to weigh theevidence on whether they should spare hislife.

That evidence included testimony thatBelmontes had a record of violence, whichincluded slugging his wife when she wasfour months pregnant, pleading guilty tobeing an accessory after the fact to voluntarymanslaughter and taking a gun from anotherman who had offered to sell it to him.

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The jurors also heard that Belmontes, whodropped out of school in the ninth grade, hada family history of poverty and violence.

His trial lawyer, who asked the jury tosentence Belmontes to life in prison withoutparole, rather than death, also presentedwhat the appeals court called substantialevidence that Belmontes could lead aconstructive life if he was kept behind bars.

During four months in custody at aCalifornia Youth Authority facility the yearbefore the murder, Belmontes worked hisway up to a position of leadership in thecamp's fire crew. A youth authority chaplaintestified that he should not be executedbecause he was a salvageable person with "alot of extenuating circumstances in his life."

Several witnesses testified that Belmontesbecame a Christian while incarcerated by theCYA then failed to maintain his religiouscommitment after being released.

Belmontes told the jury that he did not thinkhis difficult childhood excused his role inMcConnell's murder.

He told jurors that he could not withstandthe pressures of life outside prison but askedthem to give him "an opportunity to achievegoals and try to better" himself.

When the testimony was over, the trial judgegave the jurors a set of standard instructionstelling them to consider as mitigatingevidence the defendant's age, criminalhistory and any "other circumstance whichextenuates the gravity of the crime eventhough it is not a legal excuse for the crime."

But the judge declined to give the jury what

the appeals court declared to be the mostimportant part of another instructionrequested by the defense.

That instruction would have told the jurorsthat "you should not limit your considerationof mitigating circumstances to these specificfactors. You may also consider any othercircumstances ... as reasons for not imposingthe death sentence."

The importance of that catchall instruction,which is listed in California's death penaltylaw, cannot be overstated, Reinhardt wrote.

A reasonable probability exists that thejudge's refusal to give the instructionaffected the jury's decision, Reinhardt held.

"To pass constitutional muster, the trialjudge's instructions must convey to the jury"that they are free "to consider all relevantmitigating evidence," he wrote.

In his dissent, O'Scannlain said, "themajority strains mightily-andunpersuasively-to perceive constitutionalerror in the comprehensive and perfectlyproper jury instructions given by the statetrial judge."

"There is no reason to think that the jurywould have thought it was foreclosed fromusing" the testimony that it heard,O'Scannlain wrote.

Belmontes' history ofbehavior, not aninstruction," put himO'Scannlain concluded.

"violent, antisocialambiguous juryon death row,

The California attorney general's office hadno immediate comment.

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Eric Multhaup, an attorney from Mill Valleywho has represented Belmontes for 21 years

on appeal, said: "I am very happy that hewill get a second chance at a life verdict.

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"High court: Jury acted properly in killer's case:The convict's new faith was fully considered and a death sentence given anyway, justices

ruled."

The Philadelphia Inquirer (PA)March 23, 2005

Hope Yen

WASHINGTON The Supreme Court ruledyesterday that a jury that sentenced aconvicted killer to death had properly takeninto account his religious conversion, eventhough a prosecutor incorrectly argued thatit was irrelevant.

In a 5-3 ruling, justices reversed a lowercourt that had ordered a new trial forWilliam Payton. While a Californiaprosecutor was wrong to assert that Payton'sconversion was irrelevant, the errors did notmake a difference in sentencing, becausejurors had heard from other witnessesattesting to Payton's conversion, the justicesruled in Brown v. Payton.

"Testimony about a religious conversionspanning one year and nine months maywell have been considered altogetherinsignificant in light of the brutality of thecrimes, the prior offenses, and a proclivityfor committing violent acts against women,"Justice Anthony M. Kennedy wrote for themajority.

He also noted that justices may overturn adeath sentence only if it was unreasonablegiven all the evidence presented.

"In context, it was not unreasonable for thestate court to conclude that the jury believedPayton's evidence was neither credible norsufficient to outweigh the aggravating

factors, not that it was not evidence at all,"Kennedy wrote.

In a dissent, Justice David H. Souter arguedthat Payton deserved a new trial because ofthe prosecutor's misstatements.

"The trial judge utterly failed to correctthese repeated misstatements or in any otherway to honor his duty to give the jury anaccurate definition of legitimate mitigation,"Souter wrote. He was joined by JusticesJohn Paul Stevens and Ruth BaderGinsburg.

Payton's is one of the longest-running death-penalty cases. He was convicted andsentenced in the 1980 rape and stabbingdeath of Pamela Montgomery of GardenGrove, Calif.

California has more than 600 inmates ondeath row, though the state has executedonly 10 people since 1992 because of legalchallenges and concerns about the system'sfairness.

Payton's lawyers have said that about 70cases involve death-row inmates whocontend that mitigating factors after acrime-such as a religious conversion-were not properly considered because ofinadequate jury instructions.

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Whorton v. Bockting

(05-595)

Ruling Below: (Bockting v. Bayer, 399 F.3d 1010 (9th Cir., 2005)., cert granted 126 S. Ct.2017; 74 U.S.L.W. 3639 [2006]).

Marvin Bockting was convicted for sexual abuse of his six-year old stepdaughter with evidencefrom an interview the child had with a detective. Bockting claims that the admission of thisevidence without cross-examination violated his Sixth Amendment right "to be confronted withthe witnesses against him." His claim turns on whether or not the strict standard for admittingsuch testimony laid down in Crawford v. Washington in a new rule and if it applies retroactivelyto this case. The Second and Tenth Circuits have held that Crawford should not not be appliedretroactively. In this panel ruling, all three Circuit Judges wrote separately.

Question Presented: I. Whether, in direct conflict with the published opinions of the Second,Sixth, Seventh, and Tenth circuits, the Ninth Circuit erred in holding that this court's decision inCrawford v. Washington, 541 U.S. 36 (2004) regarding the admissibility of testimonial hearsayevidence under the sixth amendment, applies retroactively to cases on collateral review.II. Whether the Ninth Circuit's ruling that Crawford applies retroactively to cases on collateralreview violates this court's ruling in Teague v. Lane, 489 U.S. 288 (1989).Ill. Whether, in direct conflict with the published decisions of the Fourth and Seventh Circuits,the Ninth circuit erred in holding that 28 U.S.C. § 2254 (d) (1) and (2) adopted the Teagueexceptions for private conduct which is beyond criminal proscription and watershed rules.

Glen WHORTON, Director, Nevada Department of Corrections, PetitionerV.

Marvin Howard BOCKTING, Respondent


Decided February 22, 2005

[Excerpt: some footnotes and citations omitted]McKEOWN, Circuit Judge:

Although this case has been before theNevada Supreme Court twice and before theUnited States Supreme Court on oneoccasion, resolution now rests oninterpretation of an intervening SupremeCourt case: Crawford v. Washington, 541U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). In Crawford, the Court definitivelyheld that "testimonial statements ofwitnesses absent from trial have beenadmitted only where the declarant isunavailable and only where the defendanthas had a prior opportunity to cross-examine." 124 S. Ct. at 1369. Because thelittle girl's testimony, which was not subjectto cross-examination, was central to the

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conviction, its admission can hardly beclassified as harmless error. Crawforddictates reversal.

The thorny issue is whether Crawfordapplies retroactively to this state habeasappeal. If, as Judge Noonan argues,Crawford simply reiterates a longstandingrule and does not announce a new rule, thenretroactivity falls out of our analysis. If, onthe other hand, Crawford is characterized asa "new rule," then we are faced withanalyzing the retroactivity of Crawford inthe framework of yet another recentSupreme Court case, Schriro v. Summerlin,159 L. Ed. 2d 442, 542 U.S. 348, 124 S. Ct.2519 (2004). New rules apply retroactivelyonly where they place "certain kinds ofprimary, private individual conduct beyondthe power of the criminal law-makingauthority to proscribe," or where the newrule is "implicit in the concept of orderedliberty." Teague v. Lane, 489 U.S. 288, 307,103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).The latter category is "reserved forwatershed rules of criminal procedure." Id.at 311.

. . . [A]pplication of the Supreme Court'sguidance in Teague leads to the conclusionthat Crawford announces a "new rule."Because the Crawford rule is both a"watershed rule" and one "without whichthe likelihood of an accurate conviction isseriously diminished," Summerlin, 124 S.Ct. at 2523, the rule is retroactive.

I. FACTUAL BACKGROUND

[The Court recounts the background:Bockting's step-daughter Autumn's tellingher mother that she was sexually abused byBockting, her interview with a detective, andher inability to testify in the trial, at whichthe judge declared her an unavailable

witness.]

II. DISCUSSION

In explaining Teague's application, theSupreme Court recently explained that thereare three steps to determining whether a ruleof criminal procedure applies on collateralreview:

First, the court must determine when thedefendant's conviction became final.Second, it must ascertain the legal landscapeas it then existed, and ask whether theConstitution, as interpreted by precedentthen existing, compels the rule. That is, thecourt must decide whether the rule isactually "new." Finally, if the rule is new,the court must consider whether it fallswithin either of the two exceptions tononretroactivity.

Beard v. Banks, 542 U.S. 406, 159 L. Ed. 2d494, 124 S. Ct. 2504, 2510 (2004). BecauseBockting's conviction became final in 1993,we must evaluate whether any subsequentrule of constitutional law is new against thebenchmark of that year.

A. Crawford ANNOUNCED A NEWRULE

The question before us is whether theConfrontation Clause principles stated inCrawford amount to a new rule. InCrawford, the Supreme Court consideredwhether Washington State's use at trial of awitness's tape-recorded statement to a policeofficer violated the Confrontation Clause.124 S. Ct. at 1357. Writing for the Court,Justice Scalia engaged in a lengthy historical

226

analysis of the Confrontation Clause, notingthat "the principal evil at which theConfrontation Clause was directed was thecivil-law mode of criminal procedure, andparticularly its use of ex parte examinationsas evidence against the accused." Id. at 1363. He went on to emphasize "that the Framerswould not have allowed admission oftestimonial statements of a witness who didnot appear at trial unless he was unavailableto testify, and the defendant had had a prioropportunity for cross-examination." Id. at1365.

Whether the rule in Crawford is newdepends on whether it "was dictated by thethen-existing precedent." Beard, 124 S. Ct.at 2511. . . . Careful scrutiny of theCrawford opinion suggests otherwise for atleast two reasons: (1) Crawford deviatesfrom the test announced in Ohio v. Roberts,448 U.S. 56, 100 S. Ct. 2531 (1980); and (2)simply reaching the right "result" does notmean that the result flowed from a constantrule.

As the Court observed, "Roberts conditionsthe admissibility of all hearsay evidence onwhether it falls under a 'firmly rootedhearsay exception' or bears particularizedguarantees of trustworthiness." Crawford,124 S. Ct. at 1369 (quoting Roberts, 448U.S. at 66). Roberts rests on evidentiaryprinciples of reliability and trustworthinessrather than on the constitutional principle ofconfrontation.

Finally, the Court in Crawford pinpointed asituation that was, in fact, "arguably intension with the rule requiring a prioropportunity for cross-examination when theproffered statement is testimonial." Id. at1368 n.8. Citing White v. Illinois, 502 U.S.

346, 112 S. Ct. 736 (1992), the Courtdescribed a case remarkably similar to ours,in which "statements of a child victim to aninvestigating police officer [were] admittedas spontaneous declarations." Id. Whiterested on the issue of the unavailabilityrequirement under the Confrontation Clause;had Crawford been the rule at the time, thelack of cross-examination would have beenfatal to the admission of the evidence.

On balance, an analysis of the historicalapplication of the Confrontation Clausecases leads to the conclusion that Crawfordannounces a new rule that must be putthrough the Summerlin strainer.

B. SUMMERLIN CONTROLSRETROACTIVITY ANALYSIS

THE

Because Crawford announces a new rule,we must ask whether it falls into one of thetwo Teague exceptions to the bar onretroactivity. The first Teague exception isfor primary conduct that cannot becriminalized. The second is for bedrockrules of criminal procedure. Teague, 489U.S. at 307. It is the second exception that isat play in this case.

The Crawford rule does not narrow thescope of a criminal statute by interpreting itsterms, nor is it a constitutional determinationthat places particular conduct or personscovered by the statute beyond the State'spower to punish. . . . Therefore, Crawfordmerits retroactive application only if itimplicates "the fundamental fairness andaccuracy of the criminal proceeding," Safflev. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257(1990), and reworks our understanding ofbed-rock criminal procedure, Sawyer v.Smith, 497 U.S. 227, 242, 110 S. Ct. 2822(1990).

227

That the Crawford requirement isfundamental to our legal regime is beyonddispute. Justice Scalia's eloquent recitationof the history, purpose, and place of theConfrontation Clause and cross-examinationanswers this question. Crawford, 124 S. Ct.at 1359. Hundreds of years of tradition haveembedded this notion as a fundamental role.Indeed, "the Framers would be astounded tolearn that ex parte testimony could beadmitted against a criminal defendantbecause it was elicited by 'neutral'government officers." Id. at 1373.

The question next posed is whether the ruleimplicates the accuracy of the criminalproceeding. ...

.. . [T]he evidence that cross-examinationseriously decreases the possibility ofinaccurate conviction is unequivocal.

The Supreme Court has repeatedly andwithout deviation held that the purpose ofthe Confrontation Clause is to promoteaccuracy. See, e.g., Crawford, 124 S. Ct. at1370 ("This open examination of witnesses .. . is much more conducive to the clearingup of truth.") (quoting 3 Blackstone,Commentaries * 373)....

But accuracy and reliability do not exist in avacuum. Rather, "the central concern of theConfrontation Clause is to ensure thereliability of the evidence against a criminaldefendant by subjecting it to rigorous testingin the context of an adversary proceedingbefore the trier of fact. "The word 'confront,'after all, also means a clashing of forces orideas, thus carrying with it the notion ofadversariness." Maryland v. Craig, 497 U.S.836, 845, 110 S. Ct. 3157 (1990)....

Thus, at the heart of the Court's concerns inCrawford was the reliability of admittedevidence. Where admitted evidence isunreliable, the accuracy of convictions isseriously undermined. That the rule inCrawford is one without which the accuracyof convictions would be seriouslyundermined is further born out by theCourt's own description of its prior doctrineas a "rare case" of "fundamental failure." Id.at 1373. The difference between pre- andpost-Crawford Confrontation Clausejurisprudence is not the sort of change thatcan be dismissed as merely incremental....

In Crawford, the Court itself faults theprevious regime under Roberts. Crawford,124 S. Ct. at 1371-73. Indeed, to benchmarkreliability against Roberts would undermineCrawfords central thesis. Reliance onRoberts' judicially-administered reliabilitytest gives illusory comfort, as "the[Confrontation] Clause . . . reflects ajudgment ... about how reliability can bestbe determined," id. at 1370, and "the legacyof Roberts in other courts vindicates theFramers' wisdom in rejecting a generalreliability exception," id. at 1371.

Rules that are properly consideredretroactive are those that "alter ourunderstanding of the bedrock proceduralelements essential to the fairness of aproceeding." Sawyer v. Smith, 497 U.S. 227,242, (1990) (internal quotations omitted).... Recognizing that bedrock procedural rulesare very few in number, it is no leap toconclude that the right of cross-examinationas an adjunct to the constitutional right ofconfrontation joins the very limitedcompany of Gideon.

We join one other circuit that has concluded

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that Crawford announces a new rule,although its retroactivity analysis differsfrom ours. See Brown v. Uphoff 381 F.3d1219 (10th Cir. 2004). The Second Circuitdid not directly address the new rule issuebut concluded that even if Crawford didannounce a new rule, it would not beretroactive. Mungo v. Duncan, 393 F.3d327, 336 (2d Cir. 2004).

[The Court described the Tenth Circuit'sreasoning in holding that Crawford was anew rule but not retroactive.]

The Supreme Court's Confrontation Clausejurisprudence in Crawford cannot bedismissed as a mere tweak on theadmissibility of hearsay. See Brown, 281F.3d at 1226. The Supreme Court surely didnot conceive of it as such. Rather, the Courtdescribes the right of confrontation as a"bedrock procedural guarantee," notes that it"dates back to Roman times" and was part ofthe common law known to the foundinggeneration. Crawford, 124 S. Ct. at 1359.The Court also contrasts "exclusion underthe hearsay rules" with "the civil-law abusesthe Confrontation Clause targeted."Crawford, 124 S. Ct. at 1364. In a rare meaculpa, the Court faults itself for notenunciating the Crawford rule earlier,stating that "it reveals a fundamental failureon our part to interpret the Constitution in away that secures its intended constraint onjudicial discretion." Id. at 1373. There isnothing "mere" about the Crawford rule.

The Tenth Circuit mistakenly concluded thatrules of constitutional law subject toharmless error review can never beconsidered bedrock rules of procedure. Thetwo inquiries hinge on different questions.Whether a rule is a bedrock rule of

procedure depends on whether it increasesthe likelihood of accurate conviction.Summerlin, 124 S. Ct. at 2523. Whether arule is subject to harmless error analysisdepends on whether the impact of the errorcan be measured. See Arizona v.Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246 (1991). Therefore, a rule ofconstitutional law could be essential topromote accurate convictions, but stillsubject to harmless error review if theimpact of misapplication of the rule wereeasily measurable. In short, becauseaccuracy and measurability are differentconcepts, whether a rule of constitutionallaw is subject to harmless error review doesnot answer the question whether it is abedrock rule of procedure.

After assuming that Crawford announced anew rule, the Second Circuit rejectedretroactivity, reasoning that the Crawfordrule would not improve overall accuracybecause "it is likely to improve accuracy insome circumstances and diminish it inothers." Mungo, 393 F.3d at 335. The flawin this analysis is that the Second Circuit hassubstituted its judgment of whether theCrawford rule is one without which theaccuracy of conviction is seriouslydiminished, for the Supreme Court'sconsidered judgment. The Court has foundrepeatedly that the purpose of theConfrontation Clause is to promoteaccuracy, see, e.g., Tennessee v. Street, 471U.S. 409, 415, 105 S. Ct. 2078 (1985), andthus Crawford rejected the Robertsframework as reflective of "a fundamentalfailure on our part to interpret theConstitution in a way that secures itsintended constraint on judicial discretion,"Crawford, 124 S. Ct. at 1373. Viewing theseholdings together leads to the conclusionthat the Crawford rule is one without whichthe likelihood of accurate conviction is

229

seriously diminished.

C. BOCKTING MERITS RELIEF UNDERAEDPA

Having determined that Crawford isretroactive, the remaining task is todetermine whether, under AEDPA, theNevada Supreme Court's analysis was either"contrary to, or involved an unreasonableapplication of, clearly established Federallaw." 28 U.S.C. § 2254(d)(l)-(2). [TheCourt explains why the Nevada Court'sanalysis misapplied the established federallaw.]

The final question is whether admission ofAutumn's statement is harmless beyond areasonable doubt. See Neder v. UnitedStates, 527 U.S. 1, 15, 144 L. Ed. 2d 35, 119S. Ct. 1827 (1999). The detective'stestimony regarding Autumn's interview wasa critical piece of evidence, particularly inview of Autumn's inconsistent testimony atthe preliminary hearing. Even if herstatement to the mother was, for argument'ssake, considered admissible, the detective'sdescription of Autumn's interview was sosignificant that the error could havematerially affected the verdict. Thus,admitting Autumn's statement was notharmless beyond reasonable doubt.

III. CONCLUSION

Because a majority concludes that Crawfordmust be applied in this pending habeas case,Bockting's petition for a writ of habeascorpus is GRANTED.

NOONAN, Circuit Judge, concurring (InPart):

. . . Bockting is entitled to a writ of habeas

corpus. The misunderstanding of the lawgoverning the case is comprehensible in thelight of the history set out in Crawford;nontestimonial hearsay is not subject to anabsolute bar. "Where testimonial evidence isat issue, however, the Sixth Amendmentdemands what the common law required:unavailability and a prior opportunity forcross-examination." Id. at 1374.

No opportunity for cross-examination byBockting ever existed. He was, of course,not present when Autumn spoke to hermother or when she spoke to DetectiveZinovitch. Totally untested by the methodconstitutionally required, the two testimonialtales, retold by Laura and the detective,confronted Bockting at his trial. TheConfrontation Clause demanded that he beconfronted with the witness against him.U.S. Const. amend. VI.

It is a work of supererogation to praise thewisdom of the Founders and to celebrate theenforcement of a "bedrock proceduralguarantee." Crawford, 124 S. Ct. at 1359.Nonetheless, the circumstances of this casedemonstrate how wise it is to excludetestimony untested by cross-examination.

It is argued that to apply Crawford is toapply it retroactively. To the contrary, theSupreme Court, after reviewing its owndecisions, declared:

Our cases have thus remained faithful tothe Framers' understanding: Testimonialstatements of witnesses absent from trialhave been admitted only where the declarantis unavailable, and only where the defendanthas had a prior opportunity to cross-examine.

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Crawford, 124 S. Ct. at 1369. Crawford,therefore, does not announce a new rule.Retroactivity is not an issue.

Because the action of the Nevada SupremeCourt resulted in a decision that wascontrary to established federal law asdetermined by the Supreme Court of theUnited States, 28 U.S.C. § 2254(d)(1), thewrit of habeas corpus should issue to freeBockting from his unconstitutionalconfinement.

WALLACE, Seniorconcurring and dissenting:

Circuit Judge,

Both Judges McKeown and Noonanconclude that the Supreme Court's recentlandmark decision, Crawford v. Washington,541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004), governs our consideration ofBockting's Confrontation Clause claim,although for different reasons. While JudgeNoonan would hold that retroactivity is "notan issue" because Crawford did not establisha "new rule" within the meaning of Teaguev. Lane, 489 U.S. 288, 103 L. Ed. 2d 334,109 S. Ct. 1060 (1989), Ante at 2015, Iconcur with that part of Judge McKeown'sopinion holding that Crawford established anew rule that does not apply retroactively tostate convictions on habeas review unless itsatisfies one of two narrow exceptions.However, I do not agree that Crawford fitswithin either of those exceptions. Guided bythe principles outlined in Schriro v.Summerlin, 159 L. Ed. 2d 442, 542 U.S.348, 124 S. Ct. 2519 (2004), I would holdthat Crawfords new procedural rule doesnot qualify for retroactive application andwould analyze Bockting's ConfrontationClause claim under pre-Crawfordjurisprudence. In doing so, I would reject

that claim, as well as Bockting's remainingclaims, under the deferential standards ofreview embodied in the Antiterrorism andEffective Death Penalty Act of 1996(AEDPA), and affirm the district court'sdenial of Bockting's habeas petition.

A.

Several weeks after this case was arguedbefore us and submitted for decision, theSupreme Court issued Crawford v.Washington, 541 U.S. 36, 124 S. Ct. 1354,(2004). Parting ways with the constitutionaltest formulated in Ohio v. Roberts, 448 U.S.56, 100 S. Ct. 2531 (1980), Crawford heldthat in criminal proceedings, "testimonialstatements of witnesses absent from trial[are admissible] only where the defendant isunavailable, and only where the defendanthas had a prior opportunity to cross-examine." Crawford, 124 S. Ct. at 1369.

Bockting argues that Crawford does notraise retroactivity concerns at all because itdoes not qualify as a "new rule" underTeague. Although the Supreme Court tookgreat pains to harmonize Crawfords resultwith previous Sixth Amendment decisions, Iagree with Judge McKeown that Crawfordsratio decidendi effected a clear and decisivebreak from prior precedent. BeforeCrawford, controlling precedent permittedcourts to admit hearsay evidence against acriminal defendant whenever the declarantwas "unavailable" and the evidence had"adequate 'indicia of reliability,"' i.e., fellwithin a "firmly rooted hearsay exception"or bore "particularized guarantees oftrustworthiness." Roberts, 448 U.S. at 66.Crawford, however, emphatically rejectedRoberts's approach to testimonial evidence,arguing that its test demonstrated an"unpardonable . . . capacity to admit coretestimonial statements that the Confrontation

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Clause plainly meant to exclude." 124 S. Ct.at 1371. . . . Responding to these concerns,the Court limited Roberts's reach to cases"where nontestimonial hearsay is at issue."Id. at 1374. In cases involving "testimonialevidence," the Court replaced Roberts with anew test that has two requirements:"unavailability and a prior opportunity forcross-examination." Id. Thus, sinceCrawford overruled Roberts's test for theadmission of testimonial evidence, thedecision also represents a "new rule" forretroactivity purposes.

Crawfords "new" constitutional rule wouldonly apply retroactively to final convictionson collateral review if it falls within certaincategories of rules. The Supreme Courtrecently clarified the nature and scope ofthese categories in Summerlin:

New substantive rules generally applyretroactively. . . . New rules of procedure,on the other hand, generally do not applyretroactively. They do not produce a class ofpersons convicted of conduct the law doesnot make criminal, but merely raise thepossibility that someone convicted with useof the invalidated procedure might havebeen acquitted otherwise. Because of thismore speculative connection to innocence,we give retroactive effect to only a small setof "'watershed rules of criminal procedure'implicating the fundamental fairness andaccuracy of the criminal proceeding."

124 S. Ct. at 2522-23 (citations omitted),quoting Bousley v. United States, 523 U.S.614, 620 (1998).

Measured against Summerlin's standards,Crawford is best classified as a proceduralrule. Crawfords characterization as aprocedural rule is further supported by theCrawford decision itself. By labeling the

Confrontation Clause as "a procedural ratherthan a substantive guarantee . . . " the Courtendeavored to reinstitute "theconstitutionally prescribed method ofassessing reliability." Crawford, 124 S. Ct.at 1370. While, the line between "substance"and "procedure" may not always be crystal-clear, there can be no serious dispute thatCrawfords restriction on testimonialevidence is a "procedural" rule.

Bockting contends that Crawford meritsretroactive application here because it is a"'watershed rule[] of criminal procedure'implicating the fundamental fairness andaccuracy of the criminal proceeding." Saffle,494 U.S. at 495, citing Teague, 489 U.S. at311. This argument-which JudgeMcKeown finds persuasive-admittedly hassome intuitive appeal; as Bockting observes,the Supreme Court has described "the SixthAmendment's right of an accused toconfront the witnesses against him" as"fundamental," Pointer v. Texas, 380 U.S.400, 403, 85 S. Ct. 1065 (1965), andCrawford purports to effectuate theConfrontation Clause's original design andthereby enhance the fairness and accuracy ofdefendants' criminal proceedings. Crawford,124 S. Ct. at 1373. However, the fact thatCrawford is "'fundamental' in some abstractsense is not enough" to entitle Bockting tohabeas relief. Summerlin, 124 S. Ct. at 2523.Under Teague and its progeny, Crawforddoes not constitute a "watershed rule"suitable for retroactive application unless theRoberts test "so 'seriously diminishe[s]'accuracy that there is an 'impermissiblylarge risk' of punishing conduct the law doesnot reach." Id. at 2525, quoting Teague, 489U.S. at 312-13.

Although Summerlin does not directly

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control the outcome of this case, the closesimilarities between the two cases arecompelling. As in Summerlin, there is noclear consensus over the comparativeeffects Roberts and Crawford might have onthe accuracy of jury verdicts, see Crawford,124 S. Ct. at 1377-78 (Rehnquist, C.J.,concurring), much less any evidence thatRoberts "so 'seriously diminishe[s]' accuracythat there is an 'impermissibly large risk' ofpunishing conduct the law does not reach,"Summerlin, 124 S. Ct. at 2525, quotingTeague, 489 U.S. at 312-13. Nor am Iprepared to assert that all testimonialhearsay evidence admitted without theopportunity for cross-examinationnecessarily renders a criminal trial"impermissibly inaccurate," id. at 2526, orotherwise "unfair," id. at 2525, quotingDeStefano, 392 U.S. At 634. . . . There issimply no solid evidence that Roberts has soseriously undermined the accuracy ofcriminal proceedings as to discredit the hostof final convictions generated pursuant to itsauthority.

Yet another flaw in Judge McKeown'sanalysis is her focus on language inCrawford suggesting that the new ruleannounced in that case is truer to theFramers' design. . . . That the Framers madea particular judgment about the best way toensure the reliability of testimony does notmean that any rule other than the one theyenvisioned creates an impermissibly highrisk of inaccurate conviction.

The focus of Justice Scalia's analysis inCrawford was on Roberts' fidelity to theFramers' intentions, rather than the accuracyof convictions obtained under the Robertsregime. . . . But, even if one assumes thatthe Framers were correct as an empirical

matter that cross-examination is the bestway to ensure the reliability of testimony,that does not mean that any other methodimpermissibly threatens punishing theinnocent.

[Wallace summarizes the circuit split on thisissue and sides with the Tenth Circuit'sreasoning in Brown v Uphoff 381 F.3d 1219against McKeown.]

For the foregoing reasons, I conclude thatCrawford does not qualify as a "watershedrule[] of criminal procedure" appropriate forretroactive application to convictionsalready final on direct review. Teague, 489U.S. at 311. Like the Second Circuit inMungo, see 393 F.3d at 334-35, and unlikeJudge McKeown, see Ante at 2010-11, Itherefore would not reach the questionwhether AEDPA "nullifies" the Teagueexceptions, such that no "new rule"-evenone fitting within one of those exceptions-may serve as the basis for habeas relief.

Nonetheless, to determine whether I canconcur in the result, I must evaluateBockting's Confrontation Clause claimaccording to the standards articulated inRoberts and our own pre-Crawforddecisions.

B.[Wallace recounts the trial judge's decisionto consider Autumn unavailable as a witnessand determination to admit the hearsaystatements from her mother and a detective.]

Roberts outlines two preconditions for theintroduction of out-of-court statementsagainst a criminal defendant. First, thegovernment must establish the declarant's"unavailability" to testify as a witness at

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trial. Bains v. Cambra, 204 F.3d 964, 973(9th Cir. 2000), citing Roberts, 448 U.S. at65-66. Second, the government mustdemonstrate that the hearsay statements bear"adequate indicia of reliability" by showingthat they either fall "within a firmly rootedhearsay exception" or contain"particularized guarantees oftrustworthiness." Roberts, 448 U.S. at 65-66.In Bockting's state proceedings, the NevadaSupreme Court determined that thegovernment satisfied these tworequirements, see Bockting v. State, 109Nev. 103, 847 P.2d 1364, 1366-70 (Nev.1993) (per curiam), and Bockting challengesthese determinations on federal habeasreview.

A more difficult question is whether theNevada Supreme Court's substantiveunavailability determination was "contraryto, or involved an unreasonable applicationof, clearly established Federal law, asdetermined by the Supreme Court of theUnited States." 28 U.S.C. § 2254(d)(1)....As a general matter, however, the Court heldin Roberts that "a witness is not 'unavailable'... unless the prosecutorial authorities havemade a good-faith effort to obtain [her]presence at trial." Roberts, 448 U.S. at 75,quoting Barber v. Page, 390 U.S. 719, 724-25, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968).

Seizing on Roberts's good faith requirement,Bockting makes a plausible argument thatchild witnesses who refuse to testify in acourtroom setting should not be considered"unavailable" unless the government firstmakes a good-faith attempt to secure theirtestimony through closed circuit televisionor some other medium amenable to cross-examination. I need not consider the meritsof Bockting's proposal, however, because

my task here is not to decide what might bebest; instead, my review is limited towhether the Nevada Supreme Court'sapplication of Roberts was unreasonable.See 28 U.S.C. § 2254(d). On its face,Roberts requires no more than "a good-faitheffort to obtain [a witness's] presence attrial," Roberts, 448 U.S. at 75 (emphasisremoved), quoting Barber, 390 U.S. at 724-25, and the government arguably satisfiedthis requirement here by (1) securingAutumn's physical "presence" at trial and (2)making "a good-faith effort" to elicit hertestimony in that forum.

... I would hold, therefore, that the NevadaSupreme Court's failure to insist uponalternative procedures for procuringAutumn's contemporaneous testimony didnot involve an unreasonable application ofRoberts, Craig, or Coy.

The record does not support Bockting'sclaim that the Nevada Supreme Court'sreliance on the trial court's unavailabilityfinding "was based on an unreasonabledetermination of the facts in light of theevidence presented in the State courtproceeding." 28 U.S.C. § 2254(d)(2) . AtBockting's preliminary hearing, Autumninitially responded to the prosecution'sinquiries with incomplete or evasiveanswers, then quickly broke into tears andrefused to answer any further questions.Efforts to elicit her testimony at trial wereeven less fruitful, as she refused so much asto stand or to raise her hand to be sworn inas a witness. The trial transcript does notpaint a detailed portrait of Autumn'sdemeanor on the latter occasion, but thereare strong hints that Autumn was distraughtand uncommunicative from the start, leadingthe state trial court to conclude that there

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was no use pursuing further questioningbefore the jury. I therefore am not"convinced that an appellate panel, applyingthe normal standards of appellate review,could not reasonably conclude" that Autumnwas emotionally incapable of testifying attrial. Taylor, 366 F.3d at 1000. To thecontrary, deference to state courts isparticularly appropriate in a case such asthis, where findings of fact turn on a trialcourt's eye-witness evaluation of a childwitness's demeanor.

In sum, Bockting has not established that theNevada Supreme Court's unavailabilitydetermination was "contrary to, or involvedan unreasonable application of, clearlyestablished Federal law, as determined bythe Supreme Court of the United States," 28U.S.C. § 2254(d)(1), or "was based on anunreasonable determination of the facts inlight of the evidence presented in the Statecourt proceeding," id. § 2254(d)(2).

Bockting argues that the Nevada SupremeCourt evaluated the trustworthiness ofAutumn's statements based on anunreasonable application of Supreme Courtprecedent, because it mistakenly interpretedWright to prohibit consideration of anyevidence that did not supporttrustworthiness. . . .

I need not decide, however, if a categoricalrefusal to consider evidence challenging thetrustworthiness of Autumn's out-of-courtstatements would constitute an objectivelyunreasonable application of Wright, for therecord does not support Bockting's assertionthat the Nevada Supreme Court "explicitlyrefused to consider evidence" establishingthe unreliability of Autumn's accusations inthis case. . . . Given the Nevada Supreme

Court's assertion that it considered all the"record evidence" in assessing Bockting'sclaims, it would appear that its "totality ofthe circumstances" analysis did, in fact,embrace the Bocktings' marital problemsand other relevant circumstancessurrounding Autumn's out-of-courtstatements. I would thus reject Bockting'scontention that the Nevada Supreme Courtunreasonably applied Wright's restrictionson corroborating evidence.

The ultimate determination "whether[Autumn's] hearsay statements weresufficiently reliable to be admitted withoutviolating [Roberts] is a mixed question" oflaw and fact, Swan, 6 F.3d at 1379, so Ireview the Nevada Supreme Court'sreliability determination to ascertain whetherit "was contrary to, or involved anunreasonable application of, clearlyestablished Federal law, as determined bythe Supreme Court of the United States." 28U.S.C. § 2254(d)(1); see also Davis v.Woodford, 333 F.3d 982, 990 (9th Cir.2003). [Wallace recounts Bockting's claimswhich undermine Autumn's testimony andquestions their validity.]

Although the Nevada Supreme Court did notexpressly discuss Autumn's statements at thepreliminary hearing when evaluating theconsistency of her out-of-court statements, itdid not ignore these statements altogether.The court clearly recognized theinconsistencies in Autumn's statements,because the "Facts" section summarizedAutumn's relevant testimony at thepreliminary hearing. See Bockting, 847 P.2dat 1365 ("At the preliminary hearing, . . .[Autumn] stated that her pants were neverremoved [during the alleged abuse] and thatshe could not remember how Bockting

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touched her."). Thus, this testimony was an"aspect of the record evidence" that the statesupreme court incorporated into itsevaluation of the "totality of thecircumstances surrounding the child's out-of-court statements, as defined in Wright."Id. at 1369-70. As such, I would rejectBockting's assertion that the state supremecourt "failed to consider and weigh relevantevidence that was properly presented."Taylor, 366 F.3d at 1001.

. . . Considering the totality of thecircumstances surrounding Autumn'shearsay statements, see id. at 820, I am notpersuaded that the Nevada Supreme Courtapplied Roberts and Wright unreasonably byholding that Autumn's testimony at thepreliminary hearing does not singlehandedlytip the scale of reliability against theadmission of her out-of-court statements.

Since the Nevada Supreme Court's"unavailability" and "adequate indicia ofreliability" determinations satisfy AEDPA'sstringent standard of review, Bockting'sConfrontation Clause claim fails.

II.

[Wallace discusses several other claims thatBockting raised in support of his habeaspetition that were not discussed by the otherJudges and explains why they are notcompelling.]

For the foregoing reasons, I would affirmthe district court's denial of Bockting'spetition for habeas corpus. I thereforerespectfully dissent.

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"Nevadan's Supreme Court case could nullify countless convictions"

Reno Gazette-JournalMay 30, 2006

Martha Bellisle

The U.S. Supreme Court has agreed to heara Nevada case that has the potential to forcenew trials for countless criminal cases-from burglaries to murders-in whichhearsay testimony was used.

The high court has agreed to hear the appealof Marvin Bockting, a Las Vegas manconvicted of sexually assaulting a child in1988. His appeal relies on a 2004 high courtdecision that blocked the use of tapedtestimony or other such statements in aWashington case.

At issue is whether that Washington caseshould apply retroactively. In the MichaelCrawford v. Washington case, the court saida person has a constitutional right toquestion an accuser. If that's not possible,the statements can't be used in court.

Prosecutors say that if Bockting issuccessful in his appeal, the high court'sruling could have "a devastating effect."

"Since the defendant (Bockting) received afair trial under the law as it existed at thetime of his trial, the 2004 ruling should notapply retroactively," said Chief DeputyDistrict Attorney Dave Clifton of WashoeCounty.

"To reverse those cases that were fair at thetime would be unjust," he said. "It would belike punishing the state for something itdidn't do wrong."

But defense lawyers say limiting the use ofhearsay was a wise move, and all cases

should benefit from that wisdom.

"The Crawford decision represents one ofthe most significant constitutional decisionsof the last decade," said Washoe CountyPublic Defender Jeremy Bosler. "It correctedwhat had been a gradual erosion of the basicconstitutional right that a person must beallowed to confront his or her accuser.

"The ruling brought a return to basicconstitutional principles regarding the rightto a fair trial."

In the 2004 case, Crawford was accused ofstabbing a man he said was trying to rape hiswife. During the trial, prosecutors played atape of his wife, in which she madestatements that contradicted Crawford'sstory.

Crawford argued because he could notcross-examine her about the prerecordedstatement and because spouses can't beforced to testify against each other, the useof the statement violated Crawford's SixthAmendment right to confront witnessesagainst him.

The Supreme Court agreed, and ruled thatsuch hearsay testimony can't be used.

In the Nevada case that the Supreme Courtwill hear, Bockting was convicted in 1988 offour counts of sexual assault of a minor. Athis trial, prosecutors tried to call the 6-year-old victim, but she was unable to testify, sothey used statements from the girl's motherand statements the girl made to police

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cases would right past wrongs.

Bockting was convicted but has appealed,arguing that based on the Crawford rulinghe should get a new trial.

Clifton said he disagreed with the old ruling,and hopes it doesn't have further reach.

"The Crawford decision essentially wipedout 20 years of litigation and case lawdealing with the admissibility of trustworthyout-of-court statements made to police andothers," Clifton said. "As prosecutors, wehave been diligently following these lawsover the years by presenting certaintrustworthy statements of children, murdervictims prior to the killing, and otherdeceased or otherwise unavailable witnessesto jurors in order to gain convictions.

"Retroactivity of this ruling could have adevastating effect," he said. "It would forcea review and possible reversal of every oneof these criminal cases, including asignificant percentage of murder cases, eventhough the prosecutor and the court followedthe law as it stood at the time."

But Bosler said applying Crawford to past

"Before Crawford, citizens were left with aconfusing patchwork of state and federalcases, with decisions analyzing theadmission of hearsay statements using alogic that could be best described astorturous," he said. "These decisionsestablished a body of law where a personcould be convicted of a crime based uponthe admission of an audiotaped statement ofan accuser."

Bosler said he understood Clifton's concernsthat applying Crawford retroactively couldbe costly, reduce closure for victims and bea burden on the courts.

"But the focus should not be on those costs,"he said. "Instead, we should be askingourselves how many people have beenconvicted, and may still be incarcerated,based upon the admission of unchallengedand unconstitutional hearsay testimony."

The high court is scheduled to hear the casein the fall. Nevada Attorney General GeorgeChanos will argue the case for the state,while Bockting's position will be argued bythe federal public defender's office.

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instead.

"LV Case Could have National Impact"

Las Vegas SunAugust 15, 2005

Cy Ryan

CARSON CITY - In a case that has nationalimplications, the state attorney general'soffice will appeal to the U.S. Supreme Courta decision overturning the conviction of aLas Vegas man found guilty of the sexualassault of a 6-year-old relative.

Senior Deputy Attorney General Victor H.Schulze said Friday the 9th U.S. CircuitCourt of Appeals has been asked to hold itsorder overturning the conviction of MarvinBockting. A petition for the Supreme Courtto review the case is being prepared.

In 2004 the U.S. Supreme Court put morerestrictions on hearsay evidence beingpresented at criminal trials, and then a panelof the 9th Circuit Court, in a 2-1 vote,decided the Supreme Court decision shouldbe retroactive.

The Supreme Court ruled that priorstatements of witnesses absent from thecriminal trial are admissible only when thewitness is unavailable and only when thedefendant has had a prior chance to cross-examine the witness

In the Bockting case, the young victim wasnot available at trial and her prior statementswere admitted into evidence.

Judge Clifford Wallace of the appeals court,who dissented from the original ruling, saidit will spark a great number of appeals frominmates now in prison.

The 9th Circuit refused Thursday to have thefull court re-hear the case. Wallace objected,saying the Supreme Court ruling should beapplied only to future cases. He wanted thefull court of 9th Circuit to hear the case.

Wallace said the retroactivity decision "willopen the door for a slew of habeas petitionsfrom prisoners whose convictions werebased, even partially, on out-of-courttestimonial statements."

Schulze said five other federal circuitappeals court have ruled the Supreme Courtdecision is not retroactive. Because of theconflict between the appeals courts, Schulzesaid he believed the Supreme Court wouldaccept the case. He suggested that oralarguments could be as early as January nextyear.

Schulze said he has been getting calls fromprosecutors and attorneys general fromOregon to California asking what Nevada isgoing to do in light of the Bockting rulingand the way it could affect many cases.

If the U.S. Supreme Court upholds the 9thCircuit Court ruling, it could mean thatnumerous past convictions in these types ofcases could be overturned. It would requirenumerous retrials and young victims wouldbe forced to take the stand at trial and besubject to cross-examination.

Also if the ruling is affirmed by the nation'shighest court, that rule would apply

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nationwide. At present five other five circuitcourts have held that the rule of the SupremeCourt on juvenile witnesses applied from thedate of the ruling, not to past cases.

Attorney General Brian Sandoval said thiswas "definitely" a case that must be taken tothe U.S. Supreme Court.

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"Appeals court: Hearsay ruling is retroactive"

Associated PressFebruary 23, 2005By David Kravets

SAN FRANCISCO-A federal appeals courtset aside a Nevada man's 1988 child-molestation conviction yesterday, ruling thatstatements the 6-year-old girl made to policecould not be introduced at trial unless thevictim took the stand.

The 2-1 decision by the 9th U.S. CircuitCourt of Appeals was the first appellateruling declaring that a 2004 U.S. SupremeCourt decision limiting courtroom hearsaystatements applied retroactively to pastcases.

Two other circuit courts of appeal, the 2ndand 10th, have ruled otherwise, and said the2004 decision generally applied to pendingor new cases.

The split in circuits likely means that theSupreme Court will decide the issue, andNevada state prosecutors are planning toappeal.

"We're certainly planning to challenge it oneway or the other," said Nevada DeputyAttorney General Rene Hulse.

The retroactive application of SupremeCourt decisions has generated legal debate.The justices have recently announced thatfederal sentencing guidelines were advisory,and demanded that juries, not judges, mustdecide facts that can increase prison terms.

The San Francisco-based appeals court, thenation's largest, sets precedent for the nineWestern states of Alaska, Arizona, Idaho,California, Hawaii, Montana, Nevada,

Oregon and Washington.

Many states allow limited "hearsayexceptions," whereby somebody testifiesabout what someone else said while thedefendant cannot cross-examine the personwho made the original statement.

The case the San Francisco appeals courtdecided yesterday concerned MarvinBockting, convicted of molesting his 6-year-old stepdaughter in a Las Vegas motel wherehe and his wife lived. The girl toldinvestigators of the abuse and demonstratedto authorities the acts with anatomicallycorrect dolls. A medical doctor concludedthat she was sexually abused.

Her statements to the authorities wereadmitted at trial, after she became upset andtestified during a preliminary hearing thatshe couldn't remember the abuse or herstatements to authorities.

Bockting's lawyers were unable to cross-examine the girl, and he was convicted andsentenced to life in prison, largely becauseof hearsay statements.

Bockting's lawyer, Franny Forsman of LasVegas, said the decision will affect othercases in which hearsay testimony frompolice officers is the focal point of aconviction.

"You can't rest your case on a cop'srecitation on what the child responded in aninterview," Forsman said.

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The 9th Circuit said Bockting's inability tocross-examine the girl on the stand violatedthe Sixth Amendment right to confrontwitnesses, as spelled out by a SupremeCourt decision last year.

Judge M. Margaret McKeown, writing forthe majority, was sensitive that"prosecutions for child abuse often relyheavily" on hearsay testimony of thevictims, but added, "The detective'sdescription of (the girl's) interview was sosignificant that the error could havematerially affected the verdict."

In March, the U.S. Supreme Court ruled theConstitution guarantees a criminal defendant

may confront his accusers. The justicessided with a Washington state manconvicted of assaulting an acquaintance hehad accused of trying to rape his wife.

The wife did not testify at her husband'sWashington state trial because of the lawprotecting spouses from testifying againstone another. Prosecutors used her tapedstatements to rebut the husband's claim thatthe stabbing was self-defense.

That the husband's lawyers had noopportunity to cross-examine his wife "issufficient to make out a violation of theSixth Amendment," Justice Antonin Scaliawrote.

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"Justices Rule Against Statements Made Out of Court"

The Washington PostMarch 9, 2004Charles Lane

The Supreme Court ruled yesterday thatprosecutors may not introduce as evidencewitness statements made out of court even ifa judge has deemed them reliable,overturning a 24-year-old precedent in favorof a new standard likely to be morefavorable to criminal defendants.

The court ruled unanimously that the state ofWashington violated Michael Crawfordsconstitutional right to confront and cross-examine witnesses against him at his 1999trial for attempted murder when it played atape recording of his wife Sylvia's policeinterrogation, in which she undermined herhusband's claim that he had acted in self-defense. Sylvia Crawford could not testify inperson, because Michael Crawford hadinvoked the spousal privilege to block herappearance.

The state was able to do this because of a1980 Supreme Court ruling that permittedthe introduction of a witness statement madeout of court if the trial judge finds specificreasons why it is trustworthy. In this case,the state argued that the reliability of SylviaCrawford's statement was establishedbecause it overlapped with her husband'sversion of events.

But yesterday, in an opinion written byJustice Antonin Scalia, the court overruledthe 1980 case, Ohio v. Roberts, holding thatthe language and history of the SixthAmendment to the Constitution clearlyrequire that witness testimony be challengedon cross-examination.

"Dispensing with confrontation becausetestimony is obviously reliable is akin todispensing with jury trial because adefendant is obviously guilty," Scalia wrote."This is not what the Sixth Amendmentprescribes."

Statements by absent witnesses should beadmissible in court only when the witness isunavailable to testify and the defendant hashad a prior opportunity to cross-examine,Scalia wrote.

Chief Justice William H. Rehnquist, joinedby Justice Sandra Day O'Connor, wroteseparately to say that he agreed with theresult in the case, but that the court couldhave reached it without overruling Roberts.

The court's decision "casts a mantle ofuncertainty over future criminal trials,"Rehnquist wrote.

Crawford had been supported in the case bythe National Association of CriminalDefense Lawyers and the American CivilLiberties Union, which argued in a friend-of-the-court brief that Roberts was too vagueand was being inconsistently applied.

"The Supreme Court's decision willfundamentally alter the way that criminaldefendants are tried across the nation,"Crawford's lawyer, Jeffrey Fisher, said in aprepared statement. "No more willgovernments be able to convict people ofcrimes on the basis of accusations that theyare unable to cross-examine."

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reliable" statements.In its brief, Washington state had maintainedthat overturning the Roberts rule wouldundermine the truth-seeking function oftrials. "The Roberts framework represents afair balance between a defendant's right toconfrontation and valid considerations ofpublic policy and should not be abandoned,"the state argued.

The Bush administration had urged the courtto modify the Roberts rule, but not to bar allout-of-court testimony. It proposed instead arule that would have permitted "inherently

But the court swept that proposal aside, witha majority made up of the court's twoleading adherents to a "textualist" approachto reading the Constitution, Scalia andJustice Clarence Thomas, and its four mostliberal members, Justices John Paul Stevens,David H. Souter, Ruth Bader Ginsburg andStephen G. Breyer. Justice Anthony M.Kennedy also joined Scalia's opinion in full.

The case is Crawford v. Washington, No.02-9410.

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Lopez v. Gonzales

(05-547)

Ruling Below: (Lopez v. Gonzales 417 F.3d 934 (8' Cir. 2005), cert granted 126 S. Ct. 1651, 74U.S.L.W. 3559 [2006]).

Lopez, a permanent resident on the United States was convicted of aiding and abetting thepossession of a controlled substance, a felony under South Dakota law but not under federal law.Lopez claims that since his crime was not considered to be a federal felony by the INA at thetime of his pleading, it should not be grounds for his removal as a permanent resident. TheEighth Circuit Court ruled that it was not relevant that the INA did not consider the crime to bean aggravated felony at that time because it was settled law for the circuit court that the crimewas a felony. This case had been joined with Toledo-Flores v. United States.

Question Presented: Whether an immigrant who is convicted in state court of a drug crimethat is a felony under the state's law but that would only be a misdemeanor under federal law hascommitted an "aggravated felony" for purposes of the immigration laws.

JOSE ANTONIO LOPEZ,Petitioner,

V.

ALBERTO GONZALES, Attorney General of the United States,Respondent

United States Court of Appealsfor the Eighth Circuit

Decided August 9, 2005

[Excerpt: some footnotes and citations omitted]GRUENDER, Circuit Judge:

Jose Antonio Lopez appeals an order of theBoard of Immigration Appeals ("BIA")pretermitting and denying his application forcancellation of removal. Lopez argues thathis state-law conviction for aiding andabetting the possession of a controlledsubstance is not an aggravated felony forpurposes of the Immigration andNaturalization Act ("INA"). For the reasonsdiscussed below, we affirm.

I. BACKGROUND

Petitioner Jose Antonio Lopez entered theUnited States in 1986 and adjusted his statusto legal permanent residency as a SeasonalAgricultural Worker in 1990. In September1997, Lopez was convicted of aiding andabetting the possession of a controlledsubstance (cocaine) in South Dakota. Theconviction was a felony under South Dakotalaw.

The Immigration and Naturalization Service("INS") initiated removal proceedingsagainst Lopez in 1998. The INS argued that

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his drug conviction established two separategrounds for removal: it was both acontrolled substance violation under INA §237(a)(2)(B)(i) and an aggravated felonyconviction based on drug trafficking underINA § 237(a)(2)(A)(iii). The INS lateradded charges that Lopez fraudulentlyobtained his original adjustment of status in1990. Lopez conceded removability for thecontrolled substance violation but filed anapplication for cancellation of removal as along-time permanent resident pursuant toINA § 240A(a).

In November 2002, the Immigration Judge(IJ) found Lopez removable on both thecontrolled-substance-violation andaggravated-felony grounds. The IJ alsopretermitted and denied Lopez's applicationfor cancellation of removal because INA §240A(a), 8 U.S.C. § 1229b(a), forbids theAttorney General to cancel removal for analien convicted of an aggravated felony. TheBIA affirmed the IJ's order with a shortopinion. Lopez timely appeals thepretermission and denial of his applicationfor cancellation of removal, arguing that hisSouth Dakota conviction was not anaggravated felony for purposes of the INA.

II. DISCUSSION

We first address our jurisdiction to hearLopez's appeal. Lopez's eligibility forcancellation of removal is governed by INA§ 240A. The INA states that "no court shallhave jurisdiction to review ... any judgmentregarding the granting of relief under section... 240A." INA § 242(a)(2)(B), 8 U.S.C. §1252(a)(2)(B). However, the REAL ID Actof 2005, Pub. L. No. 109-13, 119 Stat. 231,has added an additional jurisdictionalprovision to INA § 242. The new provision,INA § 242(a)(2)(D), codifies our jurisdictionto review constitutional claims or questionsof law raised in petitions for review of

decisions made by the Attorney Generalunder INA § 240A and other sections. SeeFernandez-Ruiz v. Gonzales, 410 F.3d 585,587 (9th Cir. 2005). Furthermore, theamendment was intended to be retroactive,applying to direct review of orders issuedbefore, on or after the date of the enactment.REAL ID Act § 106(b); Fernandez-Ruiz,410 F.3d at 587. In this case, Lopez raises aquestion of law as to whether his convictionin South Dakota state court meets the INAdefinition of aggravated felony. Asamended, INA § 242 makes clear that wehave jurisdiction to review this claim.

"We review the BIA's legal determinationsde novo, 'according substantial deference tothe [BIA's] interpretation of the statutes andregulations it administers."' Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002) (quoting Tang v. INS, 223 F.3d 713,718-19 (8th Cir. 2000)). We review theBIA's interpretation of federal criminalstatutes de novo without according anydeference. Omar v. INS, 298 F.3d 710, 714(8th Cir. 2002), overruled in part on othergrounds, Leocal v. Ashcroft, 543 U.S. 1, 160L. Ed. 2d 271, 125 S. Ct. 377, 380 (2004).

The requirements forcancellation of removalresidents are as follows:

eligibility forfor permanent

The Attorney General may cancelremoval in the case of an alien who isinadmissible or deportable from the UnitedStates if the alien-

(1) has been an alien lawfully admittedfor permanent residence for not less than 5years,

(2) has resided in the United Statescontinuously for 7 years after having beenadmitted in any status, and

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(3) has not been convicted of anyaggravated felony.

INA § 240A(a), 8 U.S.C. § 1229b(a).

Lopez argues that his South Dakotaconviction for possession of a controlledsubstance was not an aggravated felony forthe purposes of the INA because, although itwas a felony under South Dakota law, itwould not have qualified as a felony underfederal law. However, the plain language ofthe INA, and of the other statutes it refers to,states that any drug conviction that wouldqualify as a felony under either state orfederal law is an aggravated felony. Anaggravated felony is defined as "illicittrafficking in a controlled substance, . . .including a drug trafficking crime (asdefined in section 924(c) of title 18, UnitedStates Code)." INA § 101(a)(43)(B), 8U.S.C. § 1101(a)(43)(B). In turn, a drugtrafficking crime is "any felony punishableunder the Controlled Substances Act (21U.S.C. § 801 et seq.)." 18 U.S.C. 924(c)(2).Finally, "the term 'felony' is defined for thepurposes of the Controlled Substances Act(CSA) as 'any Federal or State offenseclassified by applicable Federal or State Lawas a felony."' United States v. Briones-Mata,116 F.3d 308, 309 (8th Cir. 1997) (quoting21 U.S.C. § 802(13)).

In other words, for INA purposes, a drugtrafficking crime is an offense which wouldbe punishable under 21 U.S.C. §§ 801 etseq., and which would qualify as a felonyunder either state or federal law. Briones-Mata, 116 F.3d at 310 ("The definitions ofthe terms at issue indicate that Congressmade a deliberate policy decision to includeas an 'aggravated felony' a drug crime that isa felony under state law but only amisdemeanor under the CSA."); accordUnited States v. Hernandez-Avalos, 251F.3d 505, 510 (5th Cir. 2001); but see

Cazarez-Gutierrez v. Ashcroft, 382 F.3d905, 910-11 (9th Cir. 2004) (relying on "thepresumption that immigration laws shouldbe interpreted to be nationally uniform,evidence that Congress intended uniformity,and prudential concerns" in agreeing withthe Second and Third Circuits that "statefelony drug offenses are not aggravatedfelonies for immigration purposes unless theoffense contains a trafficking element or ispunishable as a felony under the federallaws enumerated in 18 U.S.C. § 924(c)(2)").

Lopez's South Dakota conviction for aidingand abetting the possession of a controlledsubstance was a felony under state law, eventhough it only would have qualified as amisdemeanor under federal law.Accordingly, following Briones-Mata, wehold that Lopez's state-law drug convictionis an aggravated felony for INA purposes.

Lopez contends that the BIA's reliance onEighth Circuit precedent in finding that hisconviction constituted an aggravated felonywas an impermissible retroactive applicationof a new rule. At the time Lopez wasconvicted in South Dakota, it was the BIA'sposition that only crimes which would havequalified as felonies under federal law couldsupport a finding of an aggravated felony.See In re L-G, 21 1. & N. Dec. 89 (BIA1995). Later, in In re Yanez, the BIAreversed its earlier position, ruling that:

In those circuits that have spoken, thedetermination whether a state drugconviction constitutes a 'drug traffickingcrime' under § 924(c)(2), and therefore anaggravated felony under section101(a)(43)(B) of the Act, shall be made byreference to applicable circuit law, and notby reference to any legal standard articulatedby this Board.

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23 I. & N. Dec. 390, 397 (BIA 2002). Infinding that Lopez's South Dakotaconviction was an aggravated felony, the IJcited the Yanez rule and accordingly appliedour precedent from Briones-Mata. The BIAexpressly affirmed the IJ's reasoning.

Lopez cites INS v. St. Cyr, 533 U.S. 289,150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001),for the proposition that the BIA's"retroactive" application of the Yanez ruleviolated his due process rights. In that case,St. Cyr pleaded guilty to an aggravatedfelony conviction in March 1996. At thetime of his plea, an aggravated felony wouldnot have prevented St. Cyr from obtaining awaiver of deportation (analogous to"cancellation of removal") under INA §212(c); by the time of his deportationhearing in April 1997, however, § 212(c)had been repealed and replaced with §240A, under which the aggravated felonybarred him from cancellation of removal.The Supreme Court, citing traditionalpresumptions against the retroactiveapplication of amended statutes, held thataliens who had pleaded guilty to anaggravated felony before the replacement of§ 212(c) with § 240A were still eligible toseek cancellation of removal.

In contrast to St. Cyr, Lopez pleaded guiltyto an aggravated felony in September 1997,months after § 212(c) had been repealed andreplaced with § 240A. To avoid the

consequences of his aggravated felony,Lopez argues detrimental reliance not on arepealed section of the INA that was ineffect at the time of his plea, but rather onthe BIA's interpretation of a federal criminalstatute at the time of his plea-aninterpretation that had no legal force in theEighth Circuit. See Hernandez-Avalos, 251F.3d at 508 n.3 ("If a circuit court'sinterpretation of 'aggravated felony' isdifferent from the BIA's interpretation, theINS is bound by the decisions of the circuitcourt in removal proceedings arising in thatcircuit."); Yanez, 23 I. & N. Dec. 390, 394-96. Briones-Mata was published severalmonths before Lopez's guilty plea in SouthDakota and was settled law for removalproceedings arising in the Eighth Circuitregardless of the BIA's conflicting policy atthe time of Lopez's plea. See, e.g., Amaral v.INS, 977 F.2d 33, 36 n.3 (1st Cir. 1992)(noting that a state-law felony convictionwas an "aggravated felony" for INApurposes, despite the BIA's failure to rely onthat ground). Therefore, the BIA did notretroactively apply a rule in concluding thatLopez's conviction was an aggravated felonyfor the purposes of the INA under EighthCircuit precedent.

III. CONCLUSION

We affirm the BIA's order pretermitting anddenying Lopez's application for cancellationof removal.

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Toledo-Flores v. United States

(04-41378)

Ruling Below: (United States v. Toledo-Flores, 149 Fed. Appx. 241 (5h Cir, 2005), cert granted126 S. Ct. 1652, 74 U.S.L.W. 3559 [2006]).

Toledo-Flores appealed a two year sentence arguing that the court erred by imposing a longersentence due to his prior felony conviction, because that conviction does not qualify as anaggravated felony under the federal Controlled Substances Act. The court concluded that a statefelony counts for this purpose if it is punishable by more than one year of imprisonment. Thiscase had been joined with Lopez v. Gonzales (see previous case).

Question Presented: Has the Fifth Circuit erred in holding-in opposition to the Second, Third,Sixth, and Ninth Circuits-that a state felony conviction for simple possession of a controlledsubstance is a "drug trafficking crime" under 18 U.S.C. § 924(c) (2) and hence an "aggravatedfelony," under 8 U.S.C. § 1101(a) (43) (B), even though the same crime is a misdemeanor underfederal law?

UNITED STATES OF AMERICA, Plaintiff-AppelleeV.

REYMUNDO TOLEDO-FLORES, Defendant-Appellant

United States Court of Appealsfor the Fifth Circuit

Decided August 17, 2005

[Excerpt: some footnotes and citations omitted]BENAVIDES, CLEMENT, and PRADO,Circuit Judges.PER CURIAM:

Reymundo Toledo-Flores (Toledo) appealsthe two-year sentence imposed following hisguilty-plea conviction for improper entry byan alien. Toledo argues that the district courterred by imposing the eight-level increase inU.S.S.G. § 2L1.2(b)(l)(C) (2003) for havinga prior aggravated felony conviction. Toledocontends that his Texas state conviction forpossession of cocaine is not a qualifyingaggravated felony because it is not a felonyunder the federal Controlled Substances Act.Although Toledo conceded before the

district court that this argument wasforeclosed by United States v. Rivera, 265F.3d 310 (5th Cir. 2001), and United Statesv. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997), on appeal he asserts that thesedecisions are not binding because theyconflict with Jerome v. United States, 318U.S. 101, 87 L. Ed. 640, 63 S. Ct. 483(1943).

Our precedent is clear that Congress hasmade a "deliberate policy decision toinclude as an 'aggravated felony' a drugcrime that is a felony under state law butonly a misdemeanor under the [ControlledSubstances Act]." United States v.

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Hernandez-Avalos, 251 F.3d 505, 510 (5thCir. 2001) (internal quotation marks andcitation omitted). A prior conviction for astate drug offense will qualify as anaggravated felony under U.S.S.G. §2L1.2(b)(1)(C) if it is punishable under theControlled Substances Act and it ispunishable by more than a year ofimprisonment under the applicable state law.

See United States v. Sanchez- Villalobos, 412F.3d 572, 576 (5th Cir. 2005). Toledo's prioroffense meets this definition. See 21 U.S.C.§ 844(a) (2003); TEX. HEALTH ANDSAFETY CODE ANN. §§ 481.102(3)(D) &481.115 (Vernon 2001); TEX. PENALCODE ANN. § 12.35(a) (Vernon 2001).Accordingly, the judgment of the districtcourt is AFFIRMED.

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"High Court to Consider Deportation Cases"

Associated PressApril 4, 2006

The Supreme Court on Monday agreed todecide whether immigrants can avoiddeportation over some state drugconvictions.

Solicitor General Paul Clement, the Bushadministration's Supreme Court lawyer, saidappeals courts are split over whetherimmigrants convicted of state drug feloniescan avoid deportation if the same crimeswere considered misdemeanors underfederal law.

Clement said 77,000 aliens with criminalrecords received deportation orders in fiscalyear 2005. Fewer than 7,000 of them hadarrests for drug possession, he said.

In late 2006, Justices will hear appealsbrought by two Mexican citizens with drug

convictions.

Jose Antonio Lopez pleaded guilty to afelony drug charge in South Dakota. Theowner of a grocery store in Sioux Falls,Lopez was arrested in 1997 and pleadedguilty to aiding and abetting the possessionof drugs. He served 15 months of a five-yearprison sentence.

Reymundo Toledo-Flores was convicted inTexas of possession of cocaine in 2002. In2004 he pleaded guilty to felony entry intoAmerica and was sentenced to two years inprison, based in part on the previous drugconviction.

The cases are Lopez v. Gonzales, 05-547,and Toledo-Flores v. United States, 05-7664.

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"Justices Decline Terror Case of a U.S. Citizen"

New York TimesApril 4, 2006

Linda Greenhouse

WASHINGTON, April 3

In another development on Monday, thecourt agreed to resolve a dispute among thelower courts with implications for thousandsof deportation and criminal sentencingcases. The question is whether a drugoffense that is only a misdemeanor underfederal law, but that an individual state'scriminal code treats as a felony, is deemedan "aggravated felony" for purposes of

immigration law or for adding time to afederal sentence.

The issue is particularly important inimmigration law because deportable alienswith "aggravated felonies" on their recordsare ineligible for administrative discretion,making their deportation essentiallyautomatic, no matter the individualcircumstances. To resolve the issue, thecourt accepted two cases, Lopez v. Gonzales,No. 05-547, and Toledo-Flores v. UnitedStates, No. 05-7664.

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"On The Docket: Lopez, Jose v. Gonzales, Alberto "

Medill News ServiceApril 3, 2006

Katherine Boyle

Most people are aware that helping someonegain, sell or distribute cocaine is a crime.However, for Jose Antonio Lopez andReymundo Toledo-Flores whether or nottheir crimes constitute aggravated feloniesmeant the difference between living inAmerica and being sent back to Mexico.

Approximately 7,000 immigrants weredeported for drug-related crimes in 2005.Lopez was deported to Mexico on Jan. 4,2006, leaving behind two children who areUnited States citizens and an uncle.

Lopez, who attained legal permanentresident status in the United States in 1990,was arrested in 1997 for aiding and abettingthe possession of cocaine in South Dakota,which is a felony under the state's law.

Prior to his arrest he owned a grocery andcraft store in South Dakota. He also ran ataco stand.

In 1998, the Immigration and NaturalizationService began removal proceedings againstLopez. The INS based its grounds forremoval on two key parts of the Immigrationand Nationality Act (INA).

First, the INA states that any alien admittedto the United States can be removed ifconvicted of a controlled substance violationinvolving any drug other than marijuana.

The INA also mandates that any alienconvicted of an aggravated felony isdeportable.

Although Lopez admitted the controlledsubstance violation was grounds forremoval, he filed an application contestingthe INS' decision to remove him. He arguedthat the INA allows the Attorney General tocancel the removal of an alien who isdeportable if the immigrant has been fullyadmitted for permanent residence for five ormore years or has lived in the United Statesfor seven years.

However, the INA also states that, in orderto avoid removal, the deportable alien musthave no aggravated felony convictions.

In November 2003, an immigration judgeand the Board of Immigration Appealsdecided that Lopez had committed anaggravated felony and denied his applicationfor cancellation of removal. The Board ofImmigration Appeals is the highestadministrative body for interpreting andapplying immigration law, and can only beoverruled by the Attorney General or afederal court.

Lopez appealed to the 8th Circuit Court ofAppeals, arguing that his conviction in thestate of South Dakota did not meet theINA's definition of an aggravated felonybecause it would not be considered a felonyunder federal law.

The term aggravated felony used to covermurder, drug trafficking and firearmstrafficking cases, but has been expanded toinclude crimes such as shoplifting, if theycome with a year or more of prison time.Sentencing can vary from state to state.

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Lawyers for Lopez argue that his is a simplepossession case, and that the Board ofImmigration Appeals is over-expanding thedefinition of aggravated felony by defininghis crime as drug trafficking.

Attorneys for the government noted in abrief that an earlier 8th Circuit case, US. v.Briones-Mata, established in 1997 aprecedent that classified Lopez' crime as anaggravated felony regardless of whether ornot it so qualified under federal law. In thatsituation, the INA states that only the Boardof Immigration Appeals has jurisdiction toreview the case.

Lopez also argued that the Board ofImmigration Appeal's decision was invalidbecause it relied on a rule created after hisconviction. The rule in In re Yanez, statesthat an aggravated felony under state orfederal law constitutes grounds for removal.

However, the 8th Circuit precedent, Briones-Mata, was published before Lopez'conviction, and on June 24, 2005, the 8thCircuit panel used it to deny Lopez'application for cancellation of removal.

But an attorney for Lopez, Theodore Metzlerof Covington and Burling, said the 8thCircuit precedent would never have beenapplied if the Board of Immigration Appealshadn't incorrectly used the rule from In reYanez.

"Mr. Lopez argued that the Board ofImmigration Appeals didn't change itsposition on that question until after hisconviction, Metzler added. "It's true thatBriones-Mata had decided that question inthe sentencing guidelines context before Mr.Lopez's case arose, and our comment would

be that regardless of whether the 8th Circuitfollowed its own precendent, as it wasentitled to do, we think that precedent wasincorrect."

In a separate 5th Circuit Court of Appealscase, Reymundo Toledo-Flores appealed atwo-year sentence he received in Texas forpossession of cocaine, arguing that hisconviction was not an aggravated felony. Heclaimed it was not classified as a felonyunder the Controlled Substances Act.

Yet the 5th Circuit panel affirmed, notingthat Congress made a "deliberate policydecision to include as an 'aggravated felony'a drug crime that is a felony under state lawbut only a misdemeanor under the[Controlled Substances Act]."

"One case is immigration [and] one case iscriminal," noted Timothy Crooks, attorneyfor Toledo-Flores, in a phone interview."But both turn on the interpretation of agroup of statutes."

Both Lopez and Toledo-Flores petitioned theU.S. Supreme Court for review.

The 2nd, 3rd, 6th and 9th circuit courts haveruled that crimes that are not felonies underfederal law cannot constitute aggravatedfelonies and therefore are not grounds forremoval. The Court's decision will likelyresolve the difference in precedent betweenthese courts and the 5th and 8th circuits.

"We think the emerging trend among thecircuit courts of appeals is that a state lawdrug possession crime defined as a felonyunder state law is not a drug traffickingcrime under the aggravated felonyprovisions," Metzler said.

On April 3, 2006, the Supreme Court

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accepted review in both cases and

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consolidated them for consideration.

"Expanding powers of immigration authorities"

Medill News ServiceJune 6, 2006

Katherine Boyle

Jose Lopez lived in South Dakota before hewas deported to Mexico in January 2006. Heran a taco stand, and, eventually, owned hisown grocery and crafts store. A legalpermanent resident, he didn't seem like thekind of man who would draw the attentionof immigration lawyers across the country.

But that was before he was arrested for adrug crime and threatened with deportation.It was also before the U.S. Supreme Courtagreed to hear his appeal.

Now some immigration experts are takingnotice of the case, saying it demonstrates agrowing trend: immigration authorities'efforts to expand their powers ofdeportation.

Experts say immigration authorities'classification of drug offenses, stricter lawson asylum cases and a recent rash ofworksite raids have all made it easier todeport immigrants.

"Immigration laws have gotten particularlystrict with respect to drug offenses," saidFred Tsao, Policy Director for the IllinoisCoalition of Immigrant and Refugee Rights."This is a trend we've been seeing over thepast twenty years, and it's only gettingworse."

Lopez' drug offense occurred in 1997, whenhe was arrested for aiding and abetting thepossession of cocaine. The ControlledSubstances Act, passed by Congress in1988, states that drug trafficking crimes areaggravated felonies, but Lopez' lawyersargue that his is a simple possession case

and doesn't qualify for the aggravatedfelony label associated with trafficking.

"This aggravated felony question comes upin a substantial number of [immigration]cases," said Theodore Metzler, an attorneyfor Covington and Burling, the Washington,D.C.-based law firm that is representingLopez. "I think that the United States[government's] strategy in many of the[immigration] cases has been to increase thedefinition and widen the number of crimesthat can be constituted an aggravated felony.. . The main issue [in the Lopez case] iswhether, when Congress said that a drugtrafficking crime is an aggravated felony,they meant to include a simple possessioncharge."

The distinction matters because underimmigration law, Lopez could only apply forcancellation of removal, which would stophis deportation proceedings, if the Board ofImmigration Appeals determined that he hadnot committed an aggravated felony.

Manny Vargas, an immigration lawyer forthe New York State Defenders Association'sImmigrant Defense Project, is advisinglawyers for Lopez and Toledo-Flores, whoseaggravated felony conviction in Texas willbe considered before the Supreme Courtalong with Lopez' case.

"[Lopez' case] is an illustration of thefederal government overreaching, goingbeyond what Congress probably intended,"Vargas said. "Hopefully ... immigrants [canstill] go and seek review in the federal courtsto put a check on instances where the

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government can be overreaching... One ofthe overarching background issues here isthat these cases illustrate the importance ofpeople, including non-citizens, being able tohave access to the federal courts to challengeoverly broad government applications ofharsh laws."

The U.S. Attorney's Office declined tocomment on the case, and Elaine Komis,spokeswoman for the Board of ImmigrationAppeals, said the Board does not commenton its case decisions.

It is clear, however, that the definition of anaggravated felony under the ControlledSubstances Act has been greatly expandedsince its first use in 1988. While it first onlyapplied to violent crimes, such as murderand rape, and drug and firearms trafficking,under the Board of Immigration Appeal'sexpanded interpretation, it can even apply tocrimes such as shoplifting, if they come witha year or more of prison time.

"For those immigrants that are in states thatclassify minor drug possession crimes as[aggravated] felonies, it has very seriousconsequences for them and in other statesthere are no consequences at all," Metzlersaid. "That's the fundamental point offairness in this case."

The federal circuit courts have disagreed onwhether the Board of Immigration Appealshas misinterpreted Congress' original intentwith the Controlled Substances Act and istoo loosely applying the label of aggravatedfelony to crimes that don't fully qualify.

The 2nd, 3rd, 6th and 9th circuits have ruledthat crimes that are not aggravated feloniesunder federal law cannot constituteaggravated felonies and therefore are notgrounds for removal. However, the 5th and8th circuits have maintained that, as long as

the crimes were considered aggravatedfelonies under state law, immigrants werenot eligible for cancellation of removal.

The Supreme Court's decision is expected todetermine whether or not immigrationauthorities have been too draconian ininterpreting the Controlled Substances Act.

"A favorable decision [for Lopez andToledo-Flores] will not only benefit non-citizens whose cases specifically raise thisissue," Vargas said, "but also may be afurther incentive for the [immigration]agency to be less aggressive in applyingthese laws generally."

Vargas added that in Leocal v. Ashcroft, a2004 Supreme Court decision, the courtrejected a broad government interpretationof the term aggravated felony in itsapplication to violent crimes.

"If [the Leocal case] was coupled with adecision here that reversed broadgovernment interpretation on the drugcategory, it might send a signal to the[immigration] agency that they need to bemore careful about how they apply thesevery harsh provisions in the immigrationlaws," Vargas said.

The Board of Immigration Appeal'sinterpretation of the Controlled SubstancesAct isn't the only legislation that has maderemaining in the United States more difficultfor immigrants.

New asylum laws also showcase theincreasing stringency of the immigrationcourts.

"About a year ago a new law came down ...that had implications for asylum seekers,"said Uzoamaka Nzelibe, an immigrationattorney at Northwestern University's

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Bluhm Legal Clinic.

She said the Real ID Act, which was passedin May 2005 as part of an emergencyspending bill on Iraq and tsunami aid, hasmade the asylum process much morearduous.

"Some of the immigration judges aredenying [asylum] on very technicalgrounds," Nzelibe said. "Some [judges] saythey are denying [cases] because they don'tbelieve the applicant. That's very difficult torefute later on. [Judges] deny based oncooperating evidence. They are denying onbases that are difficult to challenge in theappeals court, so that's making it verydifficutl [for asylum seekers]."

A person's demeanor in the courtroom or awoman's inability to tell male airportofficers her experience being raped bysoldiers could be grounds for a judge todeny an asylum case under the Real ID Act,according to the New York-basedorganization Human Rights First.

However, the latest data the U.S. Citizenshipand Immigration Service is able to offerregarding the percentage of asylum casesaccepted per year is for 2004, said SeanSaucier, spokesman for the office. The lackof available data means it is impossible totell statistically whether or not moreapplicants for asylum are being rejected.

Yet most immigration lawyers agreed thatthe law has made gaining asylum moredifficult. They also say they are haunted bythe cases they lose.

"If [asylum] cases fail, there aren't a wholelot of options and the person has to goback," said Evelyn Marsh, a Chicagoimmigration attorney. "It seems like ahorrible thing to do to anybody. [Losing an

asylum case is] a nightmare that I have."

Other enforcement actions-such as therecent spate of worksite raids byimmigration authorities-are also keepingmany undocumented immigrants who arealready living and working in the UnitedStates awake at night.

While authorities have always had theability to arrest those who are workingillegally, many immigrants perceive therecent raids as a crackdown.

Vargas said the raids are symbolic of "thegeneral more aggressive approach toenforcement of immigration laws that thefederal government is engaging in now" thatis also seen in the Lopez case.

Large numbers of undocumented workershave been arrested lately. In April 2006,raids on IFCO, a Houston-based crate andpallet manufacturer, resulted in the arrests ofseven managers and 1,187 undocumentedworkers in 26 states.

Antonio, a 21-year-old undocumentedimmigrant, who asked that his real name notbe used, lives in Little Village, a Chicagoneighborhood that has a high concentrationof Hispanics.

Although he has lived in the United Statesfor seven years, for the past few months hesaid he has been living in fear. His motherand father, both of whom are undocumented,work in printing and metal factories in theChicago area.

Recent worksite raids have left Antonioterrified, worried that one or both of hisparents may be arrested and deported.

"If immigration goes to the factory wheremy father works, he's going to be deported,

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and then my family will be split," he said.

According to Tsao, Antonio's fears are notunjustified.

The IFCO raids were just the "opening salvoin the [worksite raid] initiative," said Tsao.

Statements from immigration officialsappear to corroborate Tsao's position.

In an April press release, Homeland SecuritySecretary Michael Chertoff said the statusquo for immigration had changed.

"This nationwide enforcement action showshow we will use all our investigative tools tobring these individuals to justice," he said.

But in the midst of strict measures ofenforcement by immigration authorities andthe Board of Immigration Appeals, the

Lopez case, which will likely go before theSupreme Court next fall, could mean a new,less stringent era for immigrants who arearrested for drug crimes. A decision in favorof Lopez would essentially check the Boardof Immigration Appeals' power to deportimmigrants for simple drug possessioncharges.

Approximately 7,000 immigrants weredeported for drug-related crimes in 2005, butit is unclear how many of them were subjectto removal for minor drug possessioncrimes.

However, for immigrants facing deportationfor such crimes in 2006 and 2007, aSupreme Court decision reversing the Boardof Immigration's decision in the Lopez casemay make all the difference, signaling,perhaps, yet another change in the statusquo.

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"Immigrants Facing Deportation Get Second Chance"

The New York SunFebruary 17, 2005

Daniela Gerson

On January 31, Antonia Estrella received adesperate call. After five years inimmigration detention centers in Alabama,Georgia, and Louisiana, her son, FranklinGrullon, said he had been told his time wasup. Immigration officials had informedGrullon, a legal permanent resident whopleaded guilty 10 years ago to drug androbbery charges, that he would be deportedon the next flight to the DominicanRepublic.

But at the 11th hour, the government granteda temporary reprieve. Grullon - and probablythousands in similar situations - now has theopportunity for a waiver hearing, one thatmay allow him to stay in this countrylegally.

"Now there's a little hope," Ms. Estrella, aBronx resident, said in Spanish. "Nowthey're saying, 'Yes, he's going to have hisday in court.' "

When Grullon, 39, who immigrated legallyat 16 and is the father of two Americancitizens, was convicted in 1995, othernoncitizen criminals in his situation wereeligible for relief from deportation. Reliefwas a chance to present evidence toimmigration judges that they should beallowed to stay in America, evidence such asrehabilitation and ties to the community.

When the immigration laws were overhauledin 1996, however, that opportunity wastaken away for thousands. A broad categoryof crimes known as aggravated felonies nowtriggers automatic deportation.

Those laws were applied retroactively. Thus,when Grullon was released in 2000, he wasimmediately placed in deportationproceedings.

This fall, however, the Justice Departmentissued a new rule, and immigrants likeGrullon, who have not yet been deported,have been given a second chance. Thechange was based on a Supreme Courtdecision four years ago that it was unlawfulto apply the change retroactively.

For thousands, it's too late. The JusticeDepartment is not allowing those alreadydeported to apply for the waiver. More than500,000 noncitizens with criminalconvictions, many of whom would havebeen eligible for the waiver, have beendeported since the new laws went into effectin 1996.

Others will not hear about the waiver intime: The opportunity to apply runs out thisApril 26. In October, the Justice Departmentposted notices in the Federal Register andsent out a press release, but immigrationlawyers said the information is not tricklingdown to immigrant offenders who need tohear it.

The New York State DefendersAssociation's Immigrant Defense Project, anonprofit group, is scrambling to get theword out that some immigrants who, before1997, pleaded guilty to a crime, can seek awaiver.

"Every other day, our hotline mailbox getsfilled because of people calling," a staff

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attorney of the Defense Project, Benita Jain,said.

For many of them, however, the rule changecame too late.

"Most people who have been calling us havea loved one who was deported wrongfully,and there's not a lot we can say to them," shesaid. "For people who were deported, thegovernment's position is they can't comeback to apply for the waiver, even thoughthey were wrongfully deported."

Another problem disturbs a New YorkUniversity School of Law professor, NancyMorawetz, who helped prepare the plaintiffsbrief in the Supreme Court case. She said thegovernment is not doing enough to informimmigrants from countries with whichAmerica currently has no repatriationagreements, such as Cuba, Vietnam, andLaos. Many have been released fromdetention because the government will notbe able to deport them in the foreseeablefuture, but they are unaware they shouldapply for the waiver to prevent futuredeportation in the event of a shift in bilateralrelations. Such a shift recently took placewith Cambodia, where America is now ableto deport immigrants convicted of crimes.

"What I think is a huge problem is that theytell people there is a time limit, and theysimply assume people will know what theyare supposed to do. It's a very complicated

piece of law," Ms. Morawetz said. "Whenthe government makes a mistake, they havea clear responsibility to fix it, and that's aresponsibility they're clearly reneging on inthese regulations."

The Justice Department said its responsereflects standard policy.

"This is consistent with what the Departmentof Justice has done in other cases whereindividuals were given an opportunity toseek relief. But at the same time, the matteris not left open indefinitely," a spokesmanfor the department, John Nowacki, said.

Advocates of increased restrictions onimmigration see the waivers as providing anew loophole to let the worst type ofimmigrants remain in the country.

But for Franklin Grullon's mother, Ms.Estrella, "212(c)," the name of the waiverand a number she loves to rattle off inSpanish, is the last hope for her son. Eversince his conviction, she said, she hascontended he was innocent and was trickedinto pleading guilty.

Now, with a stack of court papers almost astall as she is and more than 170 familymembers and friends signed on to supporthis waiver application, she is optimistic thatshe will keep her son in American and thenclear his name.

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Burton v. Waddington

(05-9222)

Ruling Below: (Burton v. Waddington, 142 Fed. Appx. 297 (9th Cir., 2005)., cert granted 126 S.Ct. 2352; 74 U.S.L.W. 3676 [2006]).

Burton, an inmate, sued for a writ of habeas corpus, objecting to the consecutive sentences forrape, robbery, and burglary that he received from a judge, claiming that Blakely v Washingtonshould apply to reduce his sentence. Blakely held that only a jury may make findings that add tosentences. The court of appeals held that Blakely was a new rule

Questions Presented: 1. Is the holding in Blakely a new rule or is it dictated by Apprendi?2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutorymaximum be proved beyond a reasonable doubt apply retroactively?

BURTON, PetitionerV.

WADDINGTON, Respondent.


Decided July 28, 2005

TASHIMA, PAEZ, and BEA, CircuitJudges:

Lonnie Lee Burton ("Burton") appeals thedistrict court's denial of his petition for writof habeas corpus pursuant to 28 U.S.C. §2254. In 1994, a jury convicted Burton ofrape in the first degree, robbery in the firstdegree, and burglary in the first degree.Burton challenges his consecutive sentenceof 304 months for the rape, 153 months forthe robbery, and 105 months for theburglary, for a total of 562 months onseveral constitutional grounds. We havejurisdiction pursuant to 28 U.S.C. § 2253and we affirm. We review de novo a districtcourt's denial of a petition for writ of habeascorpus under 28 U.S.C. § 2254. Alvarado v.Hill, 252 F.3d 1066, 1068 (9th Cir. 2001).I.

The state argues that the district court lackedjurisdiction over Burton's 2002 habeaspetition because this court had not grantedleave to file a "second or successive"petition pursuant to 28 U.S.C. §2244(b)(3)(A). We disagree. In 1998,Burton filed his first federal habeas petitionchallenging his conviction. At that time, thestate court judgment as it related to Burton'ssentence was not yet final because Burton'schallenge to his sentence was still pendingbefore the state court of appeal. BecauseBurton had not yet exhausted his federalconstitutional claims in state court at thetime he filed his first federal habeas petition,they were not ripe for federal habeas review.See 28 U.S.C. § 2254(b)(1)(A)(requiring astate prisoner to exhaust his claims in statecourt before he is allowed to bring an action

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in federal court for habeas relief). Therefore,Burton was not required to challenge hissentence in his first federal petition becauseno meaningful relief would have beenavailable at that time. See LaGrand v.Stewart, 170 F.3d 1158, 1159 (9th Cir.1999)(order). We agree with the districtcourt that Burton's petition is not "second orsuccessive" because he had a "legitimateexcuse for failing to raise a claim at theappropriate time." See McCleskey v. Zant,499 U.S. 467, 490, 113 L. Ed. 2d 517, 111S. Ct. 1454 (1991).

II.

Burton claims that his due process rightswere violated when the trial court increasedhis offender score at the sentencing hearingby separately counting his Indiana theft andfraud convictions, rather than aggregatingthem as it had done in the first and secondsentencing hearings. Because Burton has notshown that the Washington Court ofAppeals' application of the law of the casedoctrine was "contrary to, or involved anunreasonable application of, clearlyestablished federal law as determined by theSupreme Court of the United States" 28U.S.C. § 2254(d)(1), we affirm the districtcourt's denial of relief on this claim.

III.

Burton next argues that his due processrights were violated because the sentencingcourt was vindictive in imposing anexceptional sentence at his third sentencinghearing. As the Washington Court ofAppeals noted, Burton's third sentence islower than his original sentence, and istherefore not presumptively vindictive underNorth Carolina v. Pearce, 395 U.S. 711,725, 23 L. Ed. 2d 656, 89 S. Ct. 2072(1969), overruled on other grounds,

Alabama v. Smith, 490 U.S. 794, 104 L. Ed.2d 865, 109 S. Ct. 2201 (1989). BecauseBurton has not shown that the trial court wasvindictive in violation of clearly establishedfederal law, Burton's claim is not cognizableunder 28 U.S.C. § 2254(d)(1).

IV.

Finally, Burton argues that his exceptionalsentence was imposed in violation of hisSixth Amendment rights under Apprendi v.New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000), and Blakely v.Washington, 542 U.S. 296, 159 L. Ed. 2d403, 124 S. Ct. 2531 (2004). We expandedthe Certificate of Appealability andrequested supplemental briefing on theimpact of Blakely and United States v.Booker, 543 U.S. 220, 160 L. Ed. 2d 621,125 S. Ct. 738 (2005), on this case.

Although Apprendi was decided beforeBurton's conviction became final and maytherefore be applied to this case, the stateargues that Blakely-decided after Burton'sconviction became final-established a newrule that does not apply retroactively oncollateral review. See Teague v. Lane, 489U.S. 288, 310, 103 L. Ed. 2d 334, 109 S. Ct.1060 (1989). We agree. See Schardt v.Payne, 414 F.3d 1025, 2005 U.S. App.LEXIS 13569, 2005 WL 1593468 (9th Cir.July 8, 2005)(holding that Blakely does notapply retroactively to a 28 U.S.C. § 2254habeas petition).

Apprendi held that "other than the fact of aprior conviction, any fact that increases thepenalty for a crime beyond the prescribedstatutory maximum must be submitted to ajury, and proved beyond a reasonabledoubt." Apprendi, 530 U.S. at 490. Thestatutory maximum for each of the offensesto which Burton was found guilty was lifeimprisonment. See WASH. REV. CODE §§

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9A.44.040(2), 9A.52.020(2), 9A.56.200(2)(classifying rape in the first degree, burglaryin the first degree, and robbery in the firstdegree as class A felonies); §9A.20.02 1(1)(a)(setting statutory maximumfor class A felonies as life imprisonment).At Burton's third sentencing hearing, thejudge imposed consecutive sentences of 304months for the rape conviction, 153 monthsfor the robbery conviction, and 105 monthsfor the burglary conviction, for a total of 562months. Because the sentence on anyindividual count, and the total sentenceimposed does not exceed the statutorymaximum of life imprisonment, it does notviolate Apprendi. See United States v.Shryock, 342 F.3d 948, 989 (9th Cir.

2003)(holding that where statutorymaximum for murder in either the first or

second degree was life imprisonment, courtdid not err in sentencing under provision forfirst degree murder on the basis of judge-found facts); United States v. Sua, 307 F.3d1150, 1154 (9th Cir. 2002)(holding that

Apprendi was not violated where sentenceimposed did not exceed the statutorymaximum); see also United States v.

Buckland, 289 F.3d 558, 570 (9th Cir.2002)(en banc)(finding no Apprendiviolation where none of the individualsentences imposed consecutively exceededthe statutory maximum for that offense).

Accordingly, we AFFIRM.

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"Supreme Court to hear Washington case"

The Seattle TimesJune 6, 2006

Natalie Singer

The U.S. Supreme Court said Monday it willconsider whether inmates can reopenchallenges to prison sentences based on acourt ruling two years ago that limitedjudges' discretion in sentencing criminaldefendants.

Justices will hear arguments this fall fromLonnie Burton, who is serving nearly 47years in prison in Washington state for a1991 rape, robbery and burglary in FederalWay.

Burton was convicted in 1994 of forcing hisway into a home and raping a 15-year-oldboy at gunpoint. He stole $160 from thehouse before leaving.

Prosecutors asked for a 25-year sentence forBurton-about the maximum outlined underthe state's sentencing guidelines-but a KingCounty judge gave him 47 years, saying hedeserved the harsher sentence.

Burton's appeal follows a Supreme Courtruling in 2004 that overturned the sentenceof another Washington man, Ralph Blakely,who was convicted of kidnapping hisestranged wife. A judge, acting alone, haddetermined that Blakely of Grant Countyhad acted with "deliberate cruelty" anddeserved a longer prison term.

The issue in question centers around judges'ability to issue "exceptional sentences," saidHelen Anderson, assistant professor of lawat the University of Washington.

The Legislature about two decades agocreated sentencing guidelines, which laid out

sentence ranges for every crime based onfactors such as the nature of the crime andthe criminal's previous convictions. TheLegislature also gave judges the authority togive higher sentences in certain exceptionalcases.

"The hope was that these ranges wouldprovide more equality" over the much-larger, less-defined sentencing ranges usedbefore the reforms, Anderson said.

But in a 5-4 decision in the Blakely case, thejustices found that exceptional sentenceswere unconstitutional because they allowedjudges to independently consider facts thatthe jury had not used in reaching a verdict.

Burton had an appeal pending when thecourt resolved Blakely's case.

Brian Tsuchida, Burton's attorney, said theSupreme Court case is a highly technical onethat will determine what remedies, if any,are available for inmates possibly affectedby the Blakely case.

"It has to do with whether Blakely v.Washington established a new rule, and if itdid, does that new rule apply retroactively. Itdoesn't address whether the sentencingscheme [in Washington] is legal or illegal."

After Blakely, the Legislature changed thelaw to say that the state itself, and notjudges, must decide before trial whether toseek an exceptional sentence, therebyensuring that a jury determine the facts thatwould allow for a longer sentence.

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"Blakely issues dominate court docket in 2005"The Indiana Lawyer

June 28, 2006Michael W. Hoskins

One of the largest issues addressed by theIndiana Supreme Court in 2005 was abyproduct from the nation's highest court theyear before.

The state's high court saw a spike in casesheard as a result of the U.S. Supreme Court'sdecision in Blakely v. Washington, whichshook the legal world and called intoquestion the nation's sentencing structure.

Since then, state courts are still reeling fromthe issue and figuring out how the decisionimpacts thousands of current and past casesdating to the 1970s.

An Examination of the Indiana SupremeCourt Docket, Dispositions and Voting in2005, an annual review of the high court,found a higher caseload resulted from theBlakely decision, causing the number ofcases to jump about 43 percent.

Blakely issues came up in a third of theIndiana court's cases and amounted to 20percent of the caseload, according to thereview. Twenty-two opinions were focusedon the issue, and half were abbreviatederror-correcting opinions, the review shows.

The Blakely decision was a big piece ofwork for our state courts, said Mark J.Crandley, who helped author the review.That was a huge bomb to drop on lowercourts, and it says a lot about our U.S.(Supreme) Court. But Indiana is ahead of thecurve and handled it well.

Most of the state's opinions on Blakelyissues were unanimous, and the opinions

were shorter and more concise, he and otherlegal scholars said.

While important, Blakely isn't overlycomplicated to deal with, said associateprofessor Joel Schumm at IndianaUniversity School of Law (not equalsymbol) Indianapolis.

My take is that while they might represent20 percent of cases, they don't require thekind of work or discussion that hot-buttonissues might need, Schumm said. I'm notsurprised that so many are related to Blakely.It's important but not time consuming.

Crandley said the Indiana Supreme Courtissued a ruling in March 2005 that otherstate courts could model. The ruling inSmylie v. Indiana a case arising fromJohnson County determined Blakely'sapplicability to the state's sentencingstructure. The court rejected the suggestionof making statutory sentencing structureadvisory and instead requires jurydeterminations of sentence-enhancing facts.

Indiana justices also touched onretroactivity, saying that Blakely applies toall cases on direct appeal at the time theBlakely decision came down. Theretroactivity issue is one that the U.S.Supreme Court expects to tackle this fall inthe case of Burton v. Waddington, 05-9222.

Justices will hear arguments from LonnieBurton, who is serving nearly 47 years inprison in Washington State for rape,robbery, and burglary. His attorneys toldjustices that the local judge increased thesentence by 21 years, declaring that Burton

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deserved a harsher sentence than what wasprovided by the state's sentencing scheme.

At the time of the Blakely ruling, Burton had

an appeal pending. Justices have not saidhow the decision would affect old cases, butattorneys plan to watch the case withinterest.

267

Cunningham v. Caifornia

(05-6551)

Ruling Below: (People v. Cunningham, Not Reported in Cal.Rptr.3d, 2005 WL 880983(Cal.App. 1 Dist.,2005), cert granted 126 S.Ct. 1329, 164 L.Ed.2d 47, 74 USLW 3457, 74USLW 3471, [2006]).

John Cunningham, appellant, was accused by his son (Doe) of forcibly sodomizing him andforcing him to orally copulate appellant. Despite Doe's history of lying, Appellant was convictedby a jury for sexual abuse of a child under 14. The trial court judge imposed the statutorymaximum sentence, 16 years, after weighing the aggravated and mitigating factors. Appellantappealed the admittance of certain hearsay evidence and the imposition of the upper termsentence based on aggravating factors not found by the jury in violation of his right to a jury trialunder Blakely v. Washington. The appellate court found no abuse of discretion in allowing thehearsay evidence. Furthermore, two of the judges held that the upper term sentence was part ofthe range of authorized punishments under California's statutory scheme and thus a permissiblescheme under Blakely. One appellate judge, concurring in part and dissenting in part, interpretedBlakely to require any fact that increases the penalty of a crime to be proved beyond a reasonabledoubt to the jury and would therefore remand the case for re-sentencing.

Question Presented: Whether California's Determinate Sentencing Law, by permittingsentencing judges to impose enhanced sentences based on their determination of facts not foundby the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments?

Court of Appeal, First District, Division 5, California.The PEOPLE, Plaintiff and Respondent,

V.

John CUNNINGHAM, Defendant and Appellant.

Contra Costa County Super. Ct.

April 18, 2005.

[Excerpt: some footnotes and citations omitted]SIMONS, J. Blakely v. Washington. We reject these

contentions and affirm.John Cunningham (appellant) appeals hisconviction by jury trial of continuous sexual Backgroundabuse of a child under age 14. On appeal hecontends the trial court erroneously admitted Victim's Testimonythe victim's hearsay statements, imposed theupper term, and based the upper term on The victim, referred to at trial and herein asaggravating factors not found by the jury in John Doe, is appellant's son. Doe, born inviolation of his right to jury trial under August 1989, testified that he lived with his

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mother, Wanda, for the first 10 years of hislife. In December 1999, when Doe was 10years old, he went to live with appellant,appellant's girlfriend, Latasha, appellant'sand Latasha's baby, and Latasha's youngnephew.

Doe admitted that prior to moving in withappellant, Doe falsely accused his stepfatherof beating him, resulting in scars on hisback, because he wanted to live withappellant and did not like his new stepfather.After appellant took Doe to the hospital Doeadmitted he had lied. Doe also admitted thatwhen he was eight years old he called thetelephone number for Boys' Town andfalsely reported that there was no food in hismother's house and she did not provide himwith enough attention. The police and childprotective services investigated the call andfound Doe was healthy and had ample foodat his house.

Doe testified that in January 2000, shortlyafter he moved in with appellant, appellantbegan forcibly sodomizing him and forcinghim to orally copulate appellant. Sometimeswhile being sodomized by appellant, Doescreamed for help because it hurt "very bad"and appellant put his hand over Doe's mouthto stop Doe from screaming. The actsoccurred in appellant's bedroom, the livingroom, the bathroom and the shower.Sometimes appellant molested Doe when hewas angry with Doe. Because appellantthreatened to kill Doe if he told anyoneabout the abuse, Doe was afraid of appellantand did not tell anyone while living withhim. In December 2000, Doe first told hisyounger cousin, Brittany, about appellant'sabuse in a note while visiting her whenappellant was out of town. Before giving herthe note Doe said "I have to tell you," butdid not want to say it aloud. The note said,"my dad is hu[m]ping me." ThereafterBrittany showed the note to her mother,

Karla, who then questioned Doe as to whatit meant. Doe told Karla about appellant'srepeated incidents of sodomy and forcingDoe to orally copulate him. After Karla toldher husband, Gerrell, about Doe'sallegations, Gerrell talked to Doe, then tookhim to appellant's house for a familymeeting. While there, as Doe was packinghis clothes, appellant confronted him whilethey were alone and said, "In a week youbetter say you are lying or else I am going tofuck you up."

After Doe reported appellant's abuse toWanda and his stepfather, Wanda took himto the hospital. The pediatrician whoperformed a sexual assault examination onDoe testified that the examination revealedno trauma to Doe's anus, consistent withmost postsodomy examinations. However,the doctor said that Doe's accounts of howhe felt physically during and after beingsodomized and orally copulating appellantwere consistent with how children reportsuch incidents.

On January 4, 2001, Doe was interviewedby San Pablo Police Officer Jeff Palmieri.Doe told Palmieri that appellant sexuallyabused him numerous times beginningshortly after he moved in with appellant. OnJanuary 8, Kerry O'Malley of the Children'sInterview Center (CIC) conducted avideotaped sexual assault interview of Doe.Doe's statements during the CIC interviewwere consistent with his earlier statements toPalmieri.

On January 5, 2001, appellant agreed to avideotaped interview by Officer Palmieriand Contra Costa District Attorney's OfficeInspector Ted Todd. At the beginning of theinterview appellant adamantly denied anytype of sexual touching of Doe. As thequestioning ensued, appellant became moreforthcoming in his responses. After two or

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three hours, appellant admitted that Doe'smouth did make contact with appellant'spenis for five seconds while in the showeron one occasion. Appellant also said thatDoe was a liar and was manipulative andlater said Doe was a homosexual and "can'tquit the homosexual behavior."

Defense

Testifying in his own defense, appellantdenied ever molesting Doe or any child. Healso denied ever threatening to kill Doe or"fuck [him] up." Appellant testified thatprior to coming to live with him, Doe hadbeen expelled from school due to behaviorproblems and was not doing his homework.Other defense witnesses testified that Doehad a history of lying and his allegationsagainst appellant were fabricated because hewas unhappy about appellant's requirementsregarding chores and homework.

Discussion

I. Doe's Hearsay Statements Were ProperlyAdmitted

Appellant contends the court erred inadmitting, pursuant to Evidence Codesection 1360 (hereafter section 1360), theportions of the videotaped CIC interviewwhich contained Doe's hearsay statements toBrittany and Karla. He contends the errorviolated his right to due process. Appellantdoes not argue that the admission of Doe'shearsay statements violated the SixthAmendment right of confrontation under therule recently announced in Crawford v.Washington. Since Doe testified at trial, noConfrontation Clause violation occurred.

Section 1360 creates a limited exception tothe hearsay rule in criminal prosecutionsregarding a child's statements describingacts of child abuse or neglect, including

sexual abuse. In determining whether childhearsay statements possess the requisiteindicia of reliability pursuant to section1360, subdivision (a)(2), the trial court mayconsider such nonexclusive factors as: "(1)spontaneity and consistent repetition; (2) themental state of the declarant; (3) use ofterminology unexpected from a child of[similar] age; and (4) lack of motive tofabricate. Although courts have considerableleeway in their consideration of appropriatefactors, the " 'unifying principle is that thesefactors relate to whether the child declarantwas particularly likely to be telling the truthwhen the statement was made."'

Appellant relies on Lilly v. Virginia andPeople v. Eccleston to argue we are toexercise de novo review over the trial court'sreliability determination. This argumentrests on a misunderstanding of the citedauthorities. At the time section 1360 wasenacted (1995), the leading case on theinterpretation of the Confrontation Clausewas Ohio v. Roberts. Roberts had held thatthe prosecution could only introduce hearsayagainst a criminal defendant if the statementwas admitted under a firmly rooted hearsayexception or had sufficient indicia ofreliability. Since section 1360 is not a firmlyrooted hearsay exception, an accused couldargue under Roberts that a statementadmitted under this section lacked thereliability required by the statute and by theConstitution. While the deferential abuse ofdiscretion standard of review is applied tothe statutory finding, the stricter de novostandard of review is applied to thereliability finding under the ConfrontationClause. Since only the statutory finding ofreliability is at issue here, we apply theabuse of discretion standard. In doing so wereview the trial court's ruling based on theevidence before the court at the time of theruling.

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In this case, prior to trial, appellant filed awritten motion in limine seeking to excludeportions of Doe's videotaped CIC interviewon the basis that they did not qualify undersection 1360. At the initial hearing appellantalso objected to admission of Doe'sincriminating statements to Brittany andother adult relatives prior to the videotapedinterview. The parties stipulated that thecourt would review the CIC interview videoand sections of the police reports submittedby the prosecutor, which describe thesubject statements by Doe to determinewhether the statements provided sufficientindicia of reliability to be admitted undersection 1360. Thereafter the court reviewedthe CIC interview videotape, a transcriptthereof, a police report, and a supplementalpolice report, after which it ruled Doe'shearsay statements admissible.

A. The Police Reports

1. Initial Report

Officer Palmieri's initial report states that inhis January 4, 2001 interview, Doe said thatduring the first molestation incidentappellant made Doe touch appellant's penisand then "whipped" Doe on the buttockswith his hand for not doing his homework.Throughout the year 2000, appellant madeDoe orally copulate him in the living roomof the residence and appellant sodomizedDoe several times while in the bathroom.Doe referred to appellant's penis as his"dingling" or "dick," and said appellant usedVaseline or oil before sodomizing him. Doesaid that in December 2000 he "got introuble by [appellant]" regarding a bookreport after which appellant whipped him onhis buttock and had him orally copulateappellant. Two weeks before Christmasappellant sodomized him in the showercausing him great pain. Doe describedhaving to use the bathroom after being

sodomized and seeing a white film in thetoilet water. He said the oral copulation andsodomy happened almost every day that hewas alone with appellant. He admitted lyingseveral times to his parents, but wasadamant that his accusations regardingappellant were not lies, and he was visiblyupset. When Palmieri asked why Doe wascrying, he said he did not want to get anyonein trouble, loved appellant and wantedappellant to stop molesting him. Doe toldPalmieri that on January 2, 2001, he lookedBrittany in the eyes and told her appellantwas molesting him. After Brittany toldKarla, Karla confronted Doe and he told herabout appellant's abuse over the last year.Doe also told Palmieri that when Karla tookhim back to appellant's house to confrontappellant with Doe's allegations, appellant,while alone with Doe told Doe that if he didnot say the allegations were a joke, he would"fuck him up." Doe also told Palmieri he didnot tell anyone about the abuse for a longtime because appellant threatened to kill himif he told anyone.

2. Supplemental Report

Officer Palmieri's supplemental report statesthat on January 9, 2001, he telephoned Karlaand Brittany. Brittany told him that on theafternoon of January 2 while she and Doewere drawing, Doe told her he hadsomething important to tell her but did notwant to say it out loud. Doe wrote down thatappellant had been "humping" him. WhenBrittany asked Doe if he was telling thetruth, he looked her in the eyes andresponded affirmatively. Brittany believedDoe was telling the truth because before hewrote the note he was "happy," and when hetold her about appellant he started crying.Karla told Palmieri that after Brittany gaveher Doe's note she confronted Doe and toldhim she wanted him to tell the truth. Doetold Karla that appellant had been "putting

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his dingling in [Doe's] butt," and Doe wasalso made to put his mouth on appellant'spenis. Doe told her the incidents had beenoccurring for a year, often in the shower,and that appellant put Vaseline or grease "onhis butt" before each act of sodomy. Doetold her the last act happened a couple ofweeks before because he had not completeda book report.

B. The CIC Videotape

When interviewer O'Malley asked Doe if heknew why he was at CIC, Doe responded"so [he] could talk to [her]""aboutsomething that happened to [him]." Inresponse to O'Malley's saying, "Well if youfeel comfortable right now, [Doe], could youtell me what happened," Doe gave a detaileddescription of the molestation he sufferedfor a year by a "person" or "him." Doedescribed appellant's use of Vaseline and thepain he experienced while being sodomized.His description of the first incident ofmolestation was consistent with Palmieri'spolice report. Subsequently, when O'Malleyasked who "him" referred to, Doe identifiedappellant. Doe said appellant "humped"him, which Doe said meant "molested." Theconduct Doe described as appellant"humping" him constituted sodomy. Doeoften referred to appellant's penis as his"private part," but also referred it as his"ding-a-ling" and his "dick." He referred tohaving to go to the bathroom after beingsodomized as "when I boo-boo." He alsosaid after being sodomized something"white with bubbles" would come out in hisstool. Doe described the December bookreport incident as the last incident ofmolestation. He said appellant first"whooped him" in the bedroom with a belt,then took him to the living room and hadDoe orally copulate him, then took Doe intothe bathroom and sodomized him. Doe saidhe told Brittany because he knew she would

tell her mother.

When O'Malley asked Doe how he feltabout what happened with appellant, Doesaid he felt "shock." Doe said appellantthreatened to kill him if he told anyone. Doesaid he was afraid to tell anyone becausethey might not believe him. However, hesaid he "got tired of him doing it" and "itwas disgusting" and told his cousin Brittanyto tell her mother. He said he was glad he"brought it out" because he "got sick of it."He said the molestation happened almostevery day.

Doe admitted to O'Malley that in the past hehad "said some stuff' about his mother thatwas not true. When O'Malley asked how shewould know if he was telling her the truth,Doe said people know when he is telling thetruth. He said Brittany knew he was tellingthe truth because he looked in her eyes inresponse to her request to do so and sheknew he was telling the truth. He also saidhe was not laughing when he told Brittany,and that kids laugh when they are not tellingthe truth. Doe said he cried when talking toOfficer Palmieri because he was afraid thatPalmieri would not believe him. He wasafraid no one would believe him because ofhis prior lies about his mother andstepfather. He said he previously lied abouthis mother because he was left alone with noone to talk to and play with. He said he liedabout his stepfather because his stepfatherwould play with his sisters but not with him.

C. Court's Reasoning Regarding Reliability

At the subsequent hearing on the in liminemotion the court ruled Doe's out-of-courtstatements admissible, stating the followingreasons for concluding that they boresufficient indicia of reliability:

"In terms of reliability, the court findsthat the spontaneity of the statements by

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the minor to his cousin Brittany in thenote, knowing his cousin would tell hisaunt, and consistent repetition of themanner in which the acts werecommitted shows the reliability of suchstatements. The mental state of theminor is demonstrated by the fact that hecame forward because he said he wastired of the abuse. The use of theterminology ... in which he described theacts is unexpected in a child of similarage. And to further explain the court'sfinding ..* the court has read hisdescription of the sexual acts whichshowed a knowledge of such matters farbeyond the ordinary familiarity of achild of his age. And fourth, the lack ofmotive to fabricate is demonstrated bythe fact that he was very sorry that hehad to tell about these acts because theyinvolved his father and he did not wantto have to describe them. So, based uponthose factors the court finds under Broditand Eccleston and [section] 1360 that therequirements have been met."

For the following reasons, appellantcontends the court erroneously concludedthat Doe's hearsay statements weresufficiently reliable to be admissible undersection 1360: First, the statements,particularly the note to Brittany, were notspontaneous, but were instead planned. Inaddition, the statements were not consistent,but were "embellished" and "refined" witheach retelling. Second, Doe's mental state atthe time of his statements was "unstable"given his prior false accusations againstWanda and Latasha; his animosity towardappellant, Wanda and Latasha; and hisbehavioral problems at school. Third, Doe'sstatements did not indicate a level ofknowledge that was unexpected for an 11and one-half year old, and he spent timewith older siblings and had access tonumerous TV channels with no parental

controls. Fourth, Doe had a motive to lie-hewanted to move back to Wanda's house dueto his perceived mistreatment by appellantand Latasha. Finally, there was little, if any,evidence corroborating Doe's accusations.

We conclude the court did not abuse itsdiscretion in finding Doe's hearsaystatements reliable. Regarding thespontaneity of the statements to bothBrittany and O'Malley, Doe's statementswere spontaneous in the sense that Doeinitiated them. In addition, his statements toO'Malley regarding appellant's abuse werein response to her neutral question, "couldyou tell me what happened?" We rejectappellant's assertion that Doe's hearsaystatements were not consistently repeated,but were "embellished" and "refined" witheach retelling. Doe's initial and very briefstatement to Brittany that appellant had beensodomizing him was not inconsistent withhis much longer statements to Karla andO'Malley. Doe's statements to Karla andO'Malley were remarkably consistent as tothe "general outline of abuse" and it isunderstandable that he imparted extra detailsof the abuse to the interviewer because ofthe interview format.

Regarding Doe's mental state, the record ismixed. Although he conceded to O'Malleythat he had previously fabricated claimsagainst his mother and stepfather, O'Malleyconducted a lengthy colloquy with himregarding truth and falsity and questionedhim as to how she would know that he wastelling the truth. He also stated that in lightof his prior lies he was worried that hisallegation of appellant's abuse would not bebelieved. The court could reasonablyconclude that this degree of candorenhanced, rather than detracted from Doe'sreliability.

We also reject appellant's assertion that

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Doe's statements did not indicate a level ofknowledge unexpected of an 11 and one-halfyear old. Doe's extremely detaileddescriptions of the unpleasant physicalsensations he experienced during and afterbeing sodomized would be unusual even foran adult unless experienced firsthand.Nothing in the record before the court at thein limine hearing suggested that Doe's levelof knowledge came from a source other thanhis personal experience.

Based on the record before the court at thein limine hearing, it could properlydetermine that Doe lacked a motive tofabricate based on his stated love forappellant, reluctance to report the abuse andthe possibility of appellant's resultingincarceration. Appellant had the opportunityto cross-examine Doe at trial about hisperceived mistreatment by appellant andappellant's girlfriend as a motive forfabricating the abuse allegations.

Finally, we reject appellant's assertion thatthe lack of corroborating evidence suggestedthat Doe's hearsay statements wereunreliable. Corroboration is not necessarywhere the child victim testifies at trial.

After reviewing the police reports and CICvideotape, the court provided a thoroughstatement of its reasons for finding Doe'shearsay statements reliable. Appellant hasfailed to demonstrate that the court abusedits discretion.

II. The Court Properly Imposed the UpperTerm

A. Aggravating Factors

Appellant next contends the courterroneously relied on five of six aggravatingfactors in sentencing him to the upper term.

Prior to sentencing, the court appointedpsychologist Richard Lundeen, pursuant toPenal Code section 288.1, to examineappellant and submit to the court a writtenreport and recommendation. Dr. Lundeenopined that appellant would not be a dangerto Doe or other children in the community ifreleased. Regarding treatment, Dr. Lundeenstated " 'either [appellant] did not engage ininappropriate sexual behavior as charged, orelse he has repressed those behaviors to adepth where he cannot deal with them at aconscious level at this time. In either case,he would be a poor candidate forrehabilitative therapy if he does not have acondition from which he is trying torehabilitate." Appellant retainedpsychologist John Kincaid to conduct apsychological evaluation. Dr. Kincaid'sreport stated that if granted probationappellant would be unlikely to pose a risk toDoe, but it would be prudent to restrict himfrom direct contact with minors without theimmediate presence of a responsible adult.Dr. Kincaid also stated that he saw "littlelikelihood that [appellant's] incarcerationwould be a detriment to [Doe], who hadlived with him only a relatively brief time."Dr. Kincaid recommended that appellantobtain treatment which would decrease thelikelihood that he would reoffend. He alsostated that, if incarcerated, appellant shouldbe referred for a mental health evaluationalthough "offense-specific treatments arealmost nonexistent in custody."

Although the probation report did notrecommend a particular sentence, it notedthe following circumstances in aggravation:(1) "The crime involved great sexualviolence and callousness toward a 10-year-old child." In particular, the report noted thatthe victim was "brutally whipped andsodomized over 100 times in a one yearperiod." (2) The victim was particularlyvulnerable as he relied on his father, as his

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custodial parent, for support. (3) Appellanttook advantage of his position of parentaltrust and trust as a police officer to committhe offense. (4) Appellant engaged in violentconduct which indicated a serious danger tochildren in society. The probation reportnoted the single mitigating factor thatappellant had no prior criminal record.

At sentencing, the court acknowledged thatit had considered the probation report,psychological evaluations, sentencingmemoranda, letters from the community inmitigation and letters from Doe and hismother. After denying probation, it foundthe sole mitigating factor was appellant'slack of prior criminal conduct. The courtfound the following aggravating factors: (1)The crime involved great violence and thethreat of great bodily harm disclosing a highdegree of viciousness and callousness. (2)The victim was particularly vulnerable dueto his age and dependence on appellant ashis father and primary caretaker. (3)Appellant threatened to commit bodilyinjury upon the victim in an attempt tocoerce the victim to recant his statementsabout the crime. (4) Appellant tookadvantage of a position of trust to committhe crime in that he is the victim's father andsole caregiver for a substantial period oftime. (5) Appellant engaged in violentconduct which indicates a serious danger tothe community. (6) Appellant was a peaceofficer at the time he committed the criminalacts, violating his duty to serve thecommunity of which the victim was amember. After finding that the aggravatingcircumstances outweighed the solemitigating factor, the court imposed theupper 16-year term.

1. The Relationship Between Appellant andthe Victim

Appellant contends the court erred in finding

the victim was vulnerable due to his agebecause age was an element of the chargedoffense. Although the victim's minoritycannot be used as an aggravating factorwhere minority is an element of the offense,victim vulnerability in this case was alsobased on the victim's dependence onappellant as his primary caretaker. Thus, thecourt properly based its vulnerable victimfinding on a factor other than the victim'sage.

Appellant next contends the court erred inusing the victim's dependence on appellant,and appellant's taking advantage of aposition of trust as the victim's father/solecaregiver as two separate aggravatingfactors. He relies on Garcia, which held thatthe victim's relationship to the defendantcould not be used both to support a findingof vulnerability and to find that thedefendant took advantage of a position oftrust or confidence to commit the offense."It does appear that these factors are twosides of the same coin. The significantcircumstance is the relationship between thedefendant and the victim. The circumstancesthat placed the defendant in a position oftrust and confidence were identical to thecircumstances which placed the victim in aposition of vulnerability." We agree withthis analysis and conclude that having usedthe relationship between appellant and thevictim in support of the vulnerable victimfactor, the court could not use that fact insupport of a separate aggravating factor.

2. Danger to Society

Appellant next contends the court's findingthat he engaged in violent conduct, whichindicated he posed a serious danger to thecommunity, is not supported by theevidence. We disagree. The fact thatappellant repeatedly forcibly sodomized Doeand forced Doe to orally copulate him

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suggests that the charged offense was acrime of violence. In addition, appellant'sretained psychologist, Dr. Kincaid, opinedthat while a grant of probation would notpose a risk to Doe, it would be prudent torestrict appellant from unsupervised directcontact with minors. In addition, Dr.Kincaid recommended that appellant receivetreatment to reduce the likelihood ofreoffending. Dr. Kincaid's testimonyprovides sufficient support for the findingthat appellant posed a serious danger to thecommunity.

3. Great Violence and Great Bodily Harm

Appellant argues the court erred in using thefact that he threatened the victim both tofind that the crime involved great violenceand the threat of great bodily harm and tofind that he threatened the victim in anattempt to coerce the victim to recant thevictim's statement about the crime.Appellant asserts the record is devoid of anyviolence separate from that deemed to beinherent in the acts of sodomy and oralcopulation.

Even assuming the court's reliance on thisfactor was misplaced, the court properlyfound multiple aggravating factors.Sentencing courts have wide discretion inweighing aggravating and mitigating factors,and may balance them qualitatively as wellas quantitatively. In addition, oneaggravating factor alone may warrantimposition of the upper term and the courtneed not state reasons for minimizing ordisregarding mitigating circumstances.

4. Status As Peace Officer

Finally, appellant contends his status as apolice officer was not reasonably related tohis sentencing and therefore the courterroneously relied upon it as an aggravating

circumstance under rule 4.408(a). Inparticular, he argues that the abuse heinflicted on the victim was in no way relatedto his employment as a police officer.Moreover, he argues that his status as apolice officer did not make the offenseagainst the victim "distinctively worse thanit would ordinarily have been."

Appellant also notes that this case isfactually distinguishable from Brown, wherethe defendant's status as a police officer wasrelied on as an aggravating factor inimposing the upper term on a firearmenhancement. In that case, the defendantshot a fellow officer with whom she washaving an affair, and thereafter destroyedevidence. Brown stated that the trial courtcould properly have considered the unusualfacts relating to the defendant-that thedefendant was a police officer who useddeadly force to solve a personal problem,caused serious injury, and thereafterdestroyed evidence as an aggravating factorbecause peace officers are seen as having aduty to protect people, not unlawfully shootan unarmed estranged lover. We agree withappellant that Brown is distinguishable fromthe instant case.

Again, assuming the court improperly reliedon appellant's police officer status as anaggravating factor, the court properly foundtwo aggravating factors and exercised itsdiscretion in balancing them against a singlemitigating factor. Appellant has failed todemonstrate that imposition of the upperterm was an abuse of the court's discretion.Remand for resentencing is unnecessarysince it is not reasonably probable that thecourt would have imposed a lesser term hadit know that some of its reasons wereimproper.

B. Blakely v. Washington

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In a supplemental brief filed pursuant toBlakely v. Washington, appellant contendshis sentence must be reversed because inimposing the upper term the trial court, andnot the jury, made the findings onaggravating factors in violation of his rightsto jury trial and due process. The Peoplerejoin, in part, that appellant waived hischallenge.

Under the California sentencing scheme thelower, middle and upper terms constitute arange of authorized punishments for a givencrime; the exercise of judicial discretion inselecting the upper term based onaggravating sentencing factors does notimplicate the right to a jury determinationbecause the upper term is within theauthorized range of punishment. Adefendant, such as appellant, who isconvicted of continuous sexual abuse of achild under age 14, faces a maximum prisonterm of 16 years in prison that may beimposed " solely on the basis of the factsreflected in the jury verdict or admitted bythe defendant." (Blakely v. Washington.) AsBlakely explained, "In other words, therelevant 'statutory maximum' is not themaximum sentence a judge may imposeafter finding additional facts, but themaximum he may impose without anyadditional findings. When a judge inflictspunishment that the jury's verdict alone doesnot allow, the jury has not found all the facts'which the law makes essential to thepunishment,' and the judge exceeds hisproper authority." It is instructive that, indistinguishing between permissible andimpermissible schemes, the court in Blakelyexplained: "In a system that says the judgemay punish burglary with 10 to 40 years,every burglar knows he is risking 40 years injail. In a system that punishes burglary witha 10-year sentence, with another 30 addedfor use of a gun, the burglar who enters ahome unarmed is entitled to no more than a

10-year sentence-and by reason of the SixthAmendment the facts bearing upon thatentitlement must be found by a jury." Here,the 16-year upper term was the maximumstatutorily authorized sentence for violatingPenal Code section 288.5. The court'simposition of that maximum did not violateappellant's rights to jury trial or due process.

Disposition

The judgment is affirmed.

We concur. STEVENS, J.

JONES, P.J., Concurring and Dissenting.

I concur with the majority opinion in allrespects, except its conclusion thatimposition of the 16-year upper term wasnot unconstitutional. I conclude the casemust be remanded for resentencing undercompulsion of Blakely v. Washington, forthe reasons expressed in my dissent inPeople v. Picado.

In short, Blakely held that "any fact thatincreases the penalty for a crime beyond theprescribed statutory maximum must besubmitted to a jury and proved beyond areasonable doubt." It explained that therelevant "statutory maximum" is not themaximum sentence a court may impose afterfinding additional facts, but the maximum itmay impose based solely on the factsreflected in the jury verdict or admitted bythe defendant. Under California'sdeterminate sentencing scheme, themaximum sentence a court can imposewithout making additional factual findings isthe middle term.

In this case, the trial court relied on anumber of aggravating factors as the basis

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for imposing the upper term. Even if thevulnerable victim factor was based onevidence other than the victim's age, Ibelieve that Blakely requires a jury findingof this factor. Similarly, the factors thatappellant engaged in violent conductindicating a serious danger to thecommunity, and the crime involved greatviolence and the threat of bodily harmrequire a jury finding under Blakely. Finally,even assuming the evidence shows thatappellant admitted his status as a policeofficer, I need not reach the questionwhether this is unrelated to the offense, asappellant contends, because I would remandthe case to the trial court to weigh whetherthis factor alone is sufficient to support theupper term.

United States v. Booker, addressing theapplicability of Blakely to the federalsentencing guidelines, does not alter myconclusion. Justice Breyer's majorityopinion severed from the Federal SentencingAct its provision that makes the guidelinesmandatory. As a result, the guidelines arenow effectively advisory; their use will notimplicate the Sixth Amendment, leaving afederal court broad discretion to impose asentence within the statutory range assignedto a particular offense. By the mandatorylanguage of Penal Code section 1170,subdivision (b), a California court isrequired to impose the middle term, unless itmakes factual findings different from, or inaddition to, those inherent in the juryverdict.

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"State Sentencing Guidelines Draw U.S. Supreme Court Scrutiny"

Bloomberg. comFebruary 21, 2006

The U.S. Supreme Court, aiming to clear upconfusion about the rules for criminalsentencing, agreed to consider whether thesystems in California and other states violatethe constitutional guarantee of a jury trial.

The court today said it will review aCalifornia Supreme Court decisionupholding that state's sentencing system,under which judges choose from threepossible sentences for each crime. Lawyersfor convicted child molester JohnCunningham say the system lets judgesdecide issues that should go before a jury.

California is "continuing every day toviolate the constitutional rights of countlesscriminal defendants facing sentencing in itscourts," Cunningham argued in an appealfiled in Washington.

The dispute may affect thousands ofcriminal cases around the country. Statecourts are split on the meaning of two recentU.S. Supreme Court decisions, a 2005 rulingthat invalidated aspects of the federalsentencing guidelines and a 2004 decisioninvolving Washington state's system. Atleast seven states have since struck downparts of their own sentencing systems, whilethree have said theirs are constitutional.

The Supreme Court rulings say judges can'tincrease a maximum possible prisonsentence based on their own factualconclusions, rather than the findings of ajury or admissions made by a defendant in aguilty plea.

Flexibility Touted

California requires judges to choose fromthree possible sentences for each crime.Judges must select the middle term unlessthey find aggravating or mitigatingcircumstances. The law lays out a non-exclusive list of factors the judge shouldconsider.

The law also says judges should considerthose factors based on a preponderance ofthe evidence-an easier standard to meetthan the beyond-a-reasonable-doubt test thatapplies in trials on guilt.

California Attorney General Bill Lockyerargued in a court filing that the system issufficiently flexible to pass constitutionalmuster because judges aren't limited to thelist of sentencing factors set out in the law.He argued that California judges havediscretion, much as federal judges now do inthe aftermath of the high court's decision lastyear.

California judges engage in "the same typeof judicial fact-finding that traditionally hasbeen part of the sentencing process,"Lockyer argued, quoting from a CaliforniaSupreme Court decision.

Cunningham was sentenced to 16 years, thelongest possible term, for continuous sexualabuse of his son. A trial judge pointed to thevictim's vulnerability, the especially violentnature of the crime and other so-calledaggravating factors.

The case is Cunningham v. California, 05-6551.

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Williams v. Overton

(05-7142)

Ruling Below: (Williams v. Overton, 136 Fed.Appx. 859 (6th Cir. 2005), cert granted 126 S.Ct.1463 (Mem), 164 L.Ed.2d 246, 74 USLW 3499, 74 USLW 3503 [2006]).

Williams sued prison officials for rejecting his requests for surgery and a single-occupancy cellto accommodate his handicap. The United States District Court and the Court of Appeals for theSixth Circuit dismissed his claims for failure to exhaust administrative remedies, as mandated bythe Prisoner Litigation Reform Act, because the defendants named in the suit were not named inthe administrative complaint.

Questions Presented: Whether the Prisoner Litigation Reform Act requires a prisoner to namea particular defendant in his or her administrative grievance in order to exhaust his or heradministrative remedies as to that defendant and to preserve his or her right to sue them. Also,whether the PLRA prescribes a "total exhaustion" rule that requires a federal district court todismiss a prisoner's federal civil rights complaint for failure to exhaust administrative remedieswhenever there is a single unexhausted claim, despite the presence of other exhausted claims.

Timothy WILLIAMSPlaintiff, Appellant,

V.

William OVERTON, et al.,Defendants, Appellees

United States Court of Appealsfor the Sixth Circuit.

Decided June 22, 2005.

[Excerpt: some footnotes and citations omitted]GIBBONS, Circuit Judge:

Plaintiff-Appellant Timothy Williams, aninmate in a Michigan Department ofCorrections (MDOC) facility, filed a pro se§ 1983 action against several employees ofthe MDOC. The district court dismissedWilliams' case without prejudice based on afinding that Williams had failed to exhaustall of his administrative remedies as requiredby 42 U.S.C. § 1997e(a). Williams appealsthat determination.

For the following reasons, we affirm thejudgment of the district court.

I.Williams is an inmate in the custody of theMDOC. Appellant has had "noninvolutingcavernous hemangiomas" in his right armsince birth. This condition creates thegrowth of tumors and results indisfigurement of his arm.

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Denial of Surgery ClaimIn March 2001, Williams submitted tosurgery performed by Khawaja H. Ikram,D.O., to remove a hemangioma, primarily torelieve the pain accompanying his condition.Williams went to K. Nimr Ikram, D.O. inAugust 2001 and January 2002 forconsultations. At both consultations, furthersurgery to remove hemangiomas and tostraighten his wrist was discussed. On Dr.Ikram's referral, Williams went to seeRaymond C. Noellert, M.D. in March 2002.Dr. Noellert concluded that surgery wouldbe "a fairly extensive undertaking" and evenin the best case scenario, he "would notexpect much in the way of digital flexionover strength, with the hand largelyfunctioning as a passive assist." Dr. Noellertdiscussed this opinion with Williams, andauthorized the treatment because Williams"simply cannot stand the hand the way it is."The Correctional Medical Services ("CMS")denied authorization of the surgery, statingthat "functional return of hand is not aknown result. Surgery would be cosmeticand dangerous." On March 26, 2002, thisresult was appealed on the grounds that the''request is for pain relief not to regainfunction." The request was again denied,due to the "hazards" of the surgery and the"probable futility of it." The result was againappealed on April 8, 2002 and the CMSdecided to present the case at an upcomingmedical meeting.

Williams completed a Prisoner/ParoleeGrievance Form on June 17, 2002,complaining that he had requested medicalfollow-up care and had not been treated.Williams failed to specifically name any ofthe appellees in the Grievance. The MedicalServices Advisory Committee upheld thenon-approval. Williams appealed thisdecision through Steps II and III of thegrievance process, but both appeals were

denied.

Single-Occupancy Cell AccommodationClaim

On August 13, 2002, Williams requested,among other accommodations, placement ina "handicapped accessible single cell" toaccommodate his condition. On August 22,2002, he filed a Prisoner/Parolee GrievanceForm against Warden Jamrog requesting thesame accommodation. This request wasdenied. Williams appealed the denial ofplacement in a single cell through Steps IIand III of the grievance process, but hisappeals were denied because he was noteligible under prison regulations forplacement in a single occupancy cell.Apparently, at some point Williams wasplaced in a single occupancy cell, but waslater removed from the cell becauseWilliams failed to provide medicaldocumentation or other evidence that hequalified for single cell occupancy. After hisremoval, Williams filed a Grievance Formagainst Deputy Warden of Housing Klee andSupervisor Peterson. Williamsunsuccessfully appealed the denial of thesegrievances through Steps II and III of theprocess.

District Court Opinion

Williams filed a pro se § 1983 action againstvarious members of the MDOC-AppelleesJamrog, Klee, Markwell, Pass, Peterson andOverton-claiming that (1) he was deniedthe surgical procedure to remove the tumorsin his hand, and (2) he was improperlydenied placement in a single occupancy cell.Williams claimed a violation of theAmericans with Disabilities Act, theRehabilitation Act, and the Eighth andFourteenth Amendments, seeking injunctiveand monetary relief. In lieu of filing an

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answer, defendants-appellees Jamrog,Markwell, Pass, Klee, Peterson and Overtonfiled a motion to dismiss pursuant to FederalRule of Civil Procedure 12(b) and a motionfor summary judgment pursuant to FederalRule of Civil Procedure 56(b). United StatesMagistrate Judge Virginia M. Morganreviewed the case and issued a Report andRecommendation which recommended thatthe defendants' motions be granted. Themagistrate judge reached the followingconclusions: (1) the motion to dismissshould be granted because Williams failed toname any of the defendants specifically inhis grievances filed regarding his medicalclaim, and thus had failed to exhaust hisadministrative remedies; (2) defendantswere entitled to summary judgment due tothe fact that Williams failed to presentevidence to support his claim with regard tothe medical procedure; (3) the defendantswere entitled to qualified immunity onWilliams' medical claim; (4) defendantsshould be granted summary judgment onWilliams' accommodation claim due to the"total exhaustion" rule based on Williams'failure to exhaust his medical claim; (5)Williams failed to survive the summaryjudgment standard with respect to hisaccommodation claim pursuant to the ADA,the Rehabilitation Act, the Eighth or theFourteenth Amendments; and (6) defendantswere entitled to qualified immunity onWilliams' accommodation claim.

The district court reviewed the MagistrateJudge's Report and Recommendation anddismissed the complaint for failure toexhaust administrative remedies pursuant to42 U.S.C. § 1997e(a). The district courtexplicitly failed to address the remainder ofthe Magistrate Judge's analysis. Williamsfiled a timely appeal from the district court'sorder.

II.This court reviews de novo a district court'sdismissal for failure to exhaustadministrative remedies.

The district court held that Williams hadfailed to exhaust his administrative remediesbecause although he had filed a grievanceand pursued the appropriate appeals withregard to the denial of his request forsurgery, he failed to identify any of thedefendants personally, and thus had failed toexhaust his claim with respect to thoseindividuals as required by Curry. Applyingthe total exhaustion rule, the district courtdismissed Williams' complaint in itsentirety, despite the fact that he appears tohave exhausted his administrative remedieswith respect to the single-occupancy cellaccommodation claim.

The Prison Litigation Reform Act requiresprisoners who wish to file a civil rightsaction regarding the conditions of theirconfinement to exhaust all availableadministrative remedies prior to filing suit infederal court. The prisoner bears the burdenof showing that all administrative remedieshave been exhausted by attaching anydecision demonstrating the "administrativedisposition of his complaint." The prisonermust demonstrate that he has exhausted theadministrative remedies with respect to eachindividual he intends to sue.

The exact statutory language of 42 U.S.C. §1997e(a) states:

No action shall be brought with respect toprison conditions under section 1983 of thistitle, or any other Federal law, by a prisonerconfined in any jail, prison, or othercorrectional facility until such administrativeremedies as are available are exhausted.

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Until fairly recently, there had been a lack ofclear consensus on whether the language of42 U.S.C. § 1997e(a) compels totalexhaustion. Recently, however, this court"definitively answer[ed]" the question ofwhether a prisoner's complaint containingboth exhausted and unexhausted claimsmust be dismissed under the PLRA in theaffirmative. Pursuant to this circuit's opinionin Jones Bey, it is now clear that totalexhaustion is required in order for a prisonerto bring a civil rights action in this court.

Williams has failed to satisfy therequirement of total exhaustion under thePLRA, and thus, the district court'sjudgment must be affirmed. Williams didfile a grievance based on the denial ofmedical treatment, and he appealed thegrievance through Steps II and III of thegrievance process, thus pursuing the claimthrough all stages of the process. However,the grievance failed to specifically name anyof the appellees that Williams has named inhis complaint. Because Williams has failed

to exhaust his claims with respect toindividual appellees, his complaint must bedismissed under the PLRA. See Burton, 321F.3d at 574 ("[A] prisoner mustadministratively exhaust his or her claim asto each defendant associated with theclaim.").

With respect to Williams' accommodationclaim, Williams filed a grievance againstspecific individuals and appealed thegrievance through Steps II and III of theprocess. Thus, it appears that Williamsexhausted his administrative remedies on theaccommodation claim, a conclusion notcontested by the defendants-appellees.Despite Williams' apparent exhaustion ofthis issue, however, Jones Bey requires thatthe entire action be dismissed due toWilliams' failure to exhaust his medicalclaims.

III.For the foregoing reasons, we affirm thejudgment of the district court.

283

Walton v. Bouchard

(05-7142)

Case Below: (Walton v. Bouchard, 136 Fed.Appx. 846 (6th Cir. 2005), cert granted 126 S.Ct.1463 (Mem), 164 L.Ed.2d 246, 74 USLW 3499, 74 USLW 3503 [2006])

Walton sued prison officials for disciplining him in a racially discriminatory manner. TheUnited Sates District Court and the Court of Appeals for the Sixth Circuit dismissed his claimsfor failure to exhaust administrative remedies, as mandated by the Prisoner Litigation ReformAct, because only one of the defendants named in the suit were named in the initialadministrative complaint.

Questions Presented: Whether the Prisoner Litigation Reform Act requires a prisoner to namea particular defendant in his or her administrative grievance in order to exhaust his or heradministrative remedies as to that defendant and to preserve his or her right to sue them. Also,whether the PLRA prescribes a "total exhaustion" rule that requires a federal district court todismiss a prisoner's federal civil rights complaint for failure to exhaust administrative remedieswhenever there is a single unexhausted claim, despite the presence of other exhausted claims.

John H. WALTON,Plaintiff, Appellant,

V.

Barbara BOUCHARD, et al.,Defendants, Appellees

United States Court of Appealsfor the Sixth Circuit

Decided June 17, 2005

[Excerpt: some footnotes and citations omitted]SUTTON, Circuit Judge:

John Walton, an inmate at the AlgerMaximum Correctional Facility inMunising, Michigan, filed this § 1983 actionclaiming racial discrimination by severalprison employees. The district court grantedthe employees' motions to dismiss onprocedural, not substantive, grounds,determining that Walton did not exhaust hisadministrative remedies as to each defendantnamed in the suit in accordance with 42

U.S.C. § 1997e(a). On the basis of §1997e(a) and this court's recent decision inJones Bey v. Johnson, 407 F.3d 801 (6th Cir.2005), we affirm.

I.On July 17, 2001, the prison punishedWalton for assaulting a prison officer bygiving him a sanction referred to as an"upper slot restriction" for an indefiniteperiod of time. Nearly a year later, in earlyApril 2002, Walton, an African American,

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filed a prison grievance charging AssistantDeputy Warden (ADW) Ron Bobo withracial discrimination for giving him theindefinite upper slot restriction. Waltonclaims that while white prisoners were givendefinite upper slot restrictions (30 or 60 daysat most) for similar assaults, he was given anindefinite restriction. In support of his claim,he identified a white prisoner who hadreceived a definite upper slot restriction fora similar infraction. In Step I of the prison'sgrievance process, he charged only Bobowith responsibility for the incident. Theprison responded to his grievance by statingthat ADW Ken Gearin had placed Waltonon an indefinite upper slot restriction andthat racial discrimination had nothing to dowith Gearin's decision. Such restrictions, theprison explained, are imposed individuallyand one prisoner's restriction does not affectthe discipline that another prisoner receives.Walton appealed his claim to Step II of thegrievance process, restating his allegationsfrom Step I and claiming racialdiscrimination on the part of "corruptadministration[ I heads, warden, et[ ] al[.]"Prisoner Grievance Appeal Form at Step II(contained in Walton Reply Br. at 14). Theprison responded that Walton had failed topresent any new evidence at Step II and thatits Step I response adequately addressedWalton's allegations.

Walton appealed to Step III of the grievanceprocess, the final level of appeal. In additionto restating his earlier allegations, heidentified an additional white prisoner whowas given a definite upper slot restriction formisconduct that allegedly paralleledWalton's misconduct. The prison denied theStep III appeal, stating that the responses inSteps I and II adequately addressed Walton'sconcerns.

Having obtained no relief in the grievance

process, Walton filed this action under §1983 and the Fourteenth Amendmentagainst Warden Barbara Bouchard, ADWGearin, ADW Bergh, prison employeeCathy Bauman, case manager Denise Gerthand ADW Bobo. In his request for relief, heasked the court to order the defendants toremove the upper slot restriction and toorder each of the defendants to pay him upto $750,000 in compensatory and punitivedamages.

At the time Walton filed this complaint,several district courts within this circuit hadreached different conclusions about whetherthe Prison Litigation Reform Act (PLRA)required the dismissal of a prisoner'scomplaint if it contained both exhausted andunexhausted claims. The district court in thiscase sided with the totalexhaustion schoolof thought and dismissed Walton'scomplaint without prejudice for his failure toexhaust administrative remedies againsteach named defendant. Guided by our recentdecision in Jones Bey, we now follow thesame path and affirm.

II.We give fresh review to a district court'sdismissal of an action for failure to exhaustadministrative remedies. Curry v. Scott, 249F.3d 493, 503 (6th Cir. 2001). Exhaustion ofadministrative remedies is mandatory, wehave said, "even if proceeding through theadministrative system would be futile," andeven if the defendant does not raise thedefense. The inmate bears the burden ofestablishing that he has exhausted hisadministrative remedies.

Under the PLRA, "[n]o action shall bebrought with respect to prison conditionsunder [42 U.S.C. § 1983], or any otherFederal law, by a prisoner confined in anyjail, prison, or other correctional facility

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until such administrative remedies as areavailable are exhausted." 42 U.S.C. §1997e(a) (emphasis added). In view of theexhaustion provision's reference to "action"and the PLRA's other reference to "claim,"42 U.S.C. § 1997e(c)(2), another panel ofthis court recently interpreted § 1997e(a) to"require[ I a complete dismissal of aprisoner's complaint when that prisoneralleges both exhausted and unexhaustedclaims."

We also have previously held that a prisonermust "file a grievance against the person heultimately seeks to sue." Curry, 249 F.3d at505. Such a requirement is consistent withthe aims of the PLRA as it gives the prisonadministrative system "a chance to deal withclaims against prison personnel before thosecomplaints reach federal court." And notonly must the prisoner file a grievance withregard to each defendant, he "mustadministratively exhaust his ... claim as toeach defendant associated with the claim."Burton, 321 F.3d at 574. In order to exhaust"a claim against a particular defendant, aprisoner must have alleged mistreatment ormisconduct on the part of the defendant atStep I of the [Michigan Department ofCorrections] grievance process." ("Bynegative implication, we understand these[Michigan] policies to precludeadministrative exhaustion of a claim againsta prison official if the first allegation ofmistreatment or misconduct on the part ofthat official is made at Step II or Step III ofthe grievance process.").

Walton has not satisfied these requirements.He named only ADW Bobo in Step I of hisgrievance process, and under our precedentthat is the only claim that we may considerexhausted. His claims as to all otherdefendants remain unexhausted and

accordingly the district court properlydismissed the entire complaint under JonesBey's total-exhaustion requirement.

In his pro se brief on appeal, Walton arguesthat by mentioning "corrupt administration[] heads, warden, et[ ] al[.]" during thegrievance process, he gave any unnamedparty notice of the allegations because theprison at that point could have determinedwhich prison employees were involved inthe incident. But Walton's reference to"corrupt administration[ ] heads, warden, et[] al[.]" came at Step II of the process, notStep I-the step at which a prisonergenerally must name each defendant. And inresponse to his Step I grievance, the prisongave Walton all of the information that heneeded to comply with this requirement. Farfrom leaving Walton in the dark as to whichprison officials were responsible for hisalleged mistreatment, the prison told himthat ADW Gearin gave him the upper slotrestriction. At that point, Walton was armedwith all of the information that he needed tofile a Step I grievance against ADWGearin-and a federal complaint againstGearin once the claim had been exhausted-but he simply chose not to follow this route.Even if we took the view, moreover, that theprison's acknowledgment that ADW Gearinwas responsible for Walton's upper slotrestriction establishes that Waltonadequately exhausted his claim againstGearin, it would not establish that Waltonexhausted his claims against the otherdefendants by identifying them by name orposition in Step I of the grievance process.

III.

For these reasons, we affirm the districtcourt's dismissal of Walton's complaintwithout prejudice.

286

Jones v. Bock

(05-7058)

Case Below: (Jones v. Bock, 135 Fed.Appx. 837 (6th Cir. 2005), cert granted 126 S.Ct. 1462(Mem), 164 L.Ed.2d 246, 74 USLW 3499, 74 USLW 3503 [2006]).

Jones sued prison officials for ignoring his medical needs. The United Sates District Court andthe Court of Appeals for the Sixth Circuit dismissed all his claims for failure to exhaustadministrative remedies, as mandated by the Prisoner Litigation Reform Act, because some ofhis claims were not exhausted.

Questions Presented: Whether the Total Exhaustion Rule is an affirmative defense, or a bar tosuit. Also, whether failure to exhaust one claim, when other claims are exhausted, should resultin dismissal.

Lorenzo L. JONES,Plaintiff, Appellant,

V.

Barbara BOCK, Warden, et al.,Defendants, Appellees

United States Court of Appealsfor the Sixth Circuit

Decided June 15, 2005

[Excerpt: some footnotes and citations omitted]PER CURIAM:

Plaintiff-Appellant Lorenzo Jones appeals adistrict court order dismissing his actionbrought pursuant to 42 U.S.C. § 1983 forviolations of the First, Eighth, andFourteenth Amendments of the UnitedStates Constitution. For the reasons thatfollow, we AFFIRM the judgment of thedistrict court.

I. BACKGROUNDOn November 14, 2000, Plaintiff-AppellantLorenzo Jones sustained serious injuries

from a motor vehicle accident while he wasin custody of the Michigan Department ofCorrections. Jones alleges that after theaccident, various prison officials requiredhim to complete tasks which aggravated hisinjuries. He argues, inter alia, that this actionconstituted deliberate indifference to hisserious medical needs in violation of theEighth Amendment of the United StatesConstitution. The defendants soughtdismissal of the complaint based on Jones'sfailure to exhaust administrative remedies asrequired by the Prison Litigation ReformAct of 1995, Pub. L. No. 104-134, 110 Stat.1321 (1996) ( "PLRA"), codified at various

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sections of 28 and 42 U.S.C. The districtcourt granted the motion. This appealfollowed.

II. ANALYSISThe district court did not err in dismissingthe claims against the prison officials basedon Jones's failure to exhaust hisadministrative remedies. The PLRA requiresplaintiffs to exhaust all administrativeremedies before bringing an action in federalcourt regarding prison conditions. ThisCircuit follows the "total exhaustion" rule,meaning that we must dismiss a complaintfor failure to exhaust administrativeremedies whenever there is a singleunexhausted claim, despite the presence ofother exhausted claims. See Bey v. Johnson,407 F.3d 801, 806 (6th Cir. 2005) ("We nowjoin the Tenth and Eighth Circuits in holdingthat total exhaustion is required under thePLRA."). An action is one regarding prisonconditions where it arises under federal lawand concerns, inter alia, the "effects ofactions by government officials on the livesof persons confined in prison."

This Court has held that in order to meet the

exhaustion requirement of the PLRA, aprisoner must either attach a copy of hisprison grievance forms to the complaint orstate the nature of the remedies pursued andthe result of each process. Jones stated in hiscomplaint that he had exhausted hisadministrative remedies. However, heneither attached the grievance forms to hiscomplaint nor described the remedies hepursued and the outcome. The fact that thedefendant Later provided evidence thatJones may have exhausted some of hisclaims is irrelevant under the PLRA andSixth Circuit precedent. Furthermore, evenif Jones had shown he had exhausted someof his claims, the district court properlydismissed the complaint because Jones didnot show that he had exhausted all of hisclaims. Accordingly, Jones's prison-conditions claim was properly dismissed ashe did not comply with the exhaustionrequirement, as defined by this Court'sprecedent.

III. CONCLUSION

For the preceding reasons, we AFFIRM thejudgment of the district court.

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"Supreme Court to Hear Inmates' Appeal: High Court Considers Steps Prisoners MustTake Before Filing Civil Rights Suits"

ABC NewsMarch 6, 2006

Toni Locy

The Supreme Court agreed Monday toclarify when inmates can file civil rightslawsuits contesting prison conditions.

Justices will review the cases of threeMichigan inmates whose lawsuits weredismissed because they had failed tocomplete administrative grievance processesor did not name every prison official theylater tried to sue over prison conditions.

Under the Prison Litigation Reform Act of1995, Congress sought to limit lawsuits filedby inmates over conditions of theirconfinement, including such issues as thequality of medical care and prison food.

The law requires federal judges to ensurethat inmates have completed a prison'sinternal complaint process before allowing acivil rights lawsuit to go forward.

Civil rights lawsuits filed by the threeMichigan inmates Lorenzo Jones, TimothyWilliams and John Walton were dismissedbecause the lower courts found the prisoners

had failed in one way or another to followthe grievance procedures to the letter.

Jones, who suffered serious back injuries ina car accident while he was in prisoncustody, sued because he was assigned a jobthat required him to do physical labor.

Williams filed suit because he was deniedsurgery on his right arm and hand to removedisfiguring tumors.

Walton, who is black, alleged he was thevictim of racial discrimination because hereceived more severe discipline forassaulting a corrections officer than whiteinmates he said had committed similar acts.

The cases will be consolidated for argumentduring the court's next term, which begins inOctober.

The casesWilliamsBouchard,

are Jones v. Bock, 05-7058, andv. Overton and Walton v.05-7142.

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Lawrence v. Florida

(05-8820)

Case Below: (Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005), cert granted 126 S.Ct. 1625(Mem), 164 L.Ed.2d 332, 74 USLW 3539, 74 USLW 3542 [2006]).

Lawrence was sentenced to death in Florida State Court for capital murder. The United StatesDistrict Court and the Court of Appeals for the Eleventh Circuit denied his petition for a writ ofhabeas corpus as untimely under the Antiterrorism and Effective Death Penalty Act.

Questions Presented: Where a defendant facing death has pending a U.S. Supreme Courtcertiorari petition to review the validity of the state's denial of his claims for state post-convictionrelief, does the defendant's application toll the 2244(d)(2) statute of limitations?Alternatively, does the confusion around the statute of limitations-as evidenced by the split inthe circuits-constitute an "extraordinary circumstance," entitling the diligent defendant toequitable tolling during the time when his claim is being considered by the U.S. Supreme Courton certiorari?Also, do the special circumstance where counsel advising the defendant as to the statute oflimitations was registry counsel-a species of state actor-under the monitoring supervision ofFlorida Courts, with a statutory duty to file appropriate motions in a timely manner, constitute an"extraordinary circumstance" beyond the defendant's control such that the doctrine of equitabletolling should operate to save his petition?

Gary LAWRENCE,Petitioner, Appellant,

V.

State of FLORIDA,Respondent, Appellee

United States Court of Appealsfor the Eleventh Circuit

Aug 26, 2005

[Excerpt: some citations and footnotes omitted]DUBINA, Circuit Judge:

This is a death penalty case in which theCertificate of Appealability ("COA")presents only one issue for our review:whether the one-year limitations period ofthe Antiterrorism and Effective DeathPenalty Act ("AEDPA"), 28 U.S.C. §2244(d)(1), bars petitioner Gary Lawrence's

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habeas petition. After reviewing the record,reading the parties' briefs, and having thebenefit of oral argument, we agree with thedistrict court that Lawrence's petition wasuntimely. Accordingly, we affirm the districtcourt's order.

BACKGROUNDIn March 1995, a Florida jury convicted

Lawrence of one count each of premeditatedmurder in the first degree, conspiracy tocommit murder, petit theft, and grand theftof a motor vehicle. The jury recommended adeath sentence based on the murderconviction, and the trial court followed thejury's recommendation and imposed a deathsentence. The Florida Supreme Courtsummarized the facts of the murder asfollows:

Shortly after Gary and Brenda Lawrencewere married, they separated, and anotherman, Michael Finken, moved in with Brendaand her two daughters, Stephanie andKimberly Pitts, and Stephanie's friend,Rachel Matin. On the day of the murder,July 28, 1994, Gary and Michael droveBrenda to work and then drank beer at afriend's house. Later, Gary and Michaelpicked Brenda up and the three returned tothe friend's house where they drank morebeer. After the three returned to Brenda'sapartment, Gary and Michael argued andGary hit Michael when he learned thatMichael had been sleeping with Brenda.Gary and Michael seemed to resolve theirdifferences, and Michael fell asleep on thecouch. Gary and Brenda conversed, andBrenda went through the house collectingweapons-including a pipe and a baseballbat. Gary and Brenda told Kimberly andRachel that they were "going to knock offMike." Gary told Kimberly to "stay in yourbedroom no matter what you hear."

The trial court described what happenedafter Gary and Brenda spoke to the girls:Thereafter, the two girls heard what theydescribed as a pounding sound. At onepoint, Rachel Matin stated that she heard thevictim say, "stop it, if you stop, I'll leave."She stated that she heard that statementseveral times. Kimberly Pitts stated sheheard the victim say, "please don't hit me,

I'm already bleeding." The victim's pleas,however, were met with more pounding.Once the pounding stopped, the girls wererequired to assist in the clean up anddescribed to the jury what they observed.Kimberly stated that much of the victim'sright side of his face was missing and hischin was knocked over to his ear. RachelMatin stated that there was no skin left onthe victim's face and part of his nose wasmissing. Apparently the victim was stillalive. Kimberly observed her mother comingout of the kitchen area with what appearedto be a dagger and then, although not seeingthe dagger in her hand at the time, observedher mother make a stabbing motion towardthe victim with something in her hand.

It was at that time when Brenda Lawrencerequested that the girls obtain the assistanceof Chris Wetherbee. Upon his entrance intothe home, Chris Wetherbee observed thevictim's head being caved in, blood all over,the victim's eyeball protrudingapproximately three inches and a mophandle shoved into the victim's throat.Wetherbee asked Gary Lawrence, "what'sgoing on?" At which time the Defendantresponded by pulling out the mop handleand kicking the victim and making thestatement "this is what's going on."Immediately after removing the mop handlefrom the victim's throat, Wetherbee heardthe victim give approximately three or fourragged breaths at which time the victimthereafter stopped breathing and apparentlyexpired. The Defendant, Gary Lawrence,told Wetherbee that he had beat him with apipe until it bent and then beat him with abaseball bat.

Chris Wetherbee summarized the victim'sstate: "And [he] looked like something off ofone of the real good horror movies." Garyand Brenda then removed a small amount of

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money from Michael's pockets, wrapped thebody in a shower curtain and placed thebody in Michael's car, and Gary drove to asecluded area where he set the body afire.When Gary returned home, he and Brendadanced.

The Florida Supreme Court affirmedLawrence's conviction and sentence. TheUnited States Supreme Court deniedcertiorari review on January 20, 1998.Lawrence sought state post-convictionrelief, and the trial court denied the petitionon October 11, 2000. The Florida SupremeCourt affirmed the trial court's denial ofstate post-conviction relief. The UnitedStates Supreme Court denied certiorarireview of the Florida Supreme Court'sdenial of post-conviction relief.

Lawrence then moved to federal courtseeking habeas relief pursuant to 28 U.S.C.§ 2254. The filing of his March 11, 2003,federal pro se petition sparked an unusualprocedural journey. After filing an amendedhabeas petition, the State responded that thedistrict court should dismiss the petitionbecause Lawrence was time-barred fromobtaining federal habeas relief on either theoriginal petition or the amended petition.The State also argued that equitable tollingshould not apply in Lawrence's case.Lawrence opposed the dismissal on the basisthat there was a disagreement among thecourts of appeal on the question whether apetition for certiorari to the U.S. SupremeCourt following the denial of state post-conviction relief tolls the limitation period.Lawrence sought to invoke the doctrine ofequitable tolling on the grounds that it wasappropriate because (1) counsel who advisedhim of the timing of his petition wasselected by and pre-qualified by the State ofFlorida under its registry statute; (2) hismental abilities prevented him from

meaningfully participating in a relationshipwith his counsel; and (3) he had a faciallystrong constitutional claim.

On April 12, 2004, the district court enteredan order staying the proceedings. The courtdetermined that whether Lawrence's petitionwas time-barred "depends upon whether theone-year limitations period was tolledduring the pendency of Petitioner's petitionfor writ of certiorari in the United StatesSupreme Court challenging the state court'sdenial of his motion for state collateralreview." The court noted that there was acircuit split on the issue, although EleventhCircuit precedent clearly stated that thelimitations period was not tolled during thependency of a petition for certiorarichallenging the state court's denial of post-conviction relief. On the question ofequitable tolling, the district court found thatLawrence had not met the prerequisites toequitable tolling. However, in light of thepending certiorari petition in Abela v.Martin, which held contrary to this circuit'sdecision in Coates, the district court enteredan order staying the proceedings. Thedistrict court noted that if the Supreme Courtdenied review in Abela, then it woulddismiss Lawrence's petition based onCoates.

Subsequently, on May 27, 2004, after theSupreme Court denied review in Caruso v.Abela, the district court noted in an orderthat Lawrence's petition was time-barredbased on Coates. However, the court did notenter an order dismissing the petitionbecause the State had lodged an appeal fromthe district court's stay order. After this courtdismissed the State's appeal from the stayorder for lack of jurisdiction, the districtcourt entered the order dismissing thepetition. Lawrence filed a motion for aCOA, which the district court granted. The

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district court set forth the issue in the COAas "whether the one-year limitations periodapplicable to a petition for writ of habeascorpus under 28 U.S.C. § 2254 barred thispetition, and on the legal issue whether thestatute of limitations is tolled during thependency of a petition for writ of certiorariin the United States Supreme Courtchallenging the state court's denial ofpetitioner's earlier motion for state collateralreview."

DISCUSSIONThe only issue presented in the COA iswhether the one-year limitations periodunder AEDPA bars Lawrence's habeaspetition. After needless delay, the districtcourt determined that Lawrence's petitionwas untimely. "The district court'sinterpretation and application of a statute oflimitations is a question of law that issubject to de novo review." We also reviewde novo the district court's legal decision onequitable tolling. However, we will reversethe district court's factual determinationsonly if they are clearly erroneous. Thedistrict court's finding whether a party wasdiligent in ascertaining the federal habeasfiling deadline is a finding of fact.

We begin our discussion by setting forth thelimited circumstance under which a courtmay issue a COA. The right to appeal isgoverned by the COA requirements set forthin 28 U.S.C. § 2253(c):

(c)(1) Unless a circuit justice or judge issuesa certificate of appealability, an appeal maynot be taken to the court of appeals from-(A) the final order in a habeas corpusproceeding in which the detentioncomplained of arises out of process issuedby a State court; or(B) the final order in a proceeding undersection 2255.

(2) A certificate of appealability may issueunder paragraph (1) only if the applicant hasmade a substantial showing of the denial ofa constitutional right.(3) The certificate of appealability underparagraph (1) shall indicate which specificissue or issues satisfy the showing requiredby paragraph (2).

Under this limited provision, if a districtcourt denies a habeas petition on proceduralgrounds without reaching the petitioner'sunderlying constitutional claims, a COAshould issue only if the petitioner shows"that jurists of reason would find itdebatable whether the petition states a validclaim of the denial of a constitutional right,and that jurists of reason would find itdebatable whether the district court wascorrect in its procedural ruling." "[B]othshowings [must] be made before the court ofappeals may entertain the appeal." If theprocedural bar is obvious and the districtcourt correctly invoked it to dispose of thecase, "a reasonable jurist could not concludeeither that the district court erred indismissing the petition or that the petitionershould be allowed to proceed further." Thecourt may first resolve the issue whoseanswer is more apparent from the record andthe arguments. "The recognition that thecourt will not pass upon a constitutionalquestion although properly presented by therecord, if there is also present some otherground upon which the case may bedisposed of, allows and encourages the courtto first resolve procedural issues."

Because of the statutory constraint in issuinga COA, we are puzzled by the district court'sissuance of a COA in this case. The districtcourt should not have issued a COA on thestatute of limitations issue because bindingcircuit precedent clearly disposed of theissue. "[T]he time during which a petition

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for writ of certiorari is pending, or couldhave been filed, following the denial ofcollateral relief in the state courts, is not tobe subtracted from the running of time for28 U.S.C. § 2244(d)(1) statute of limitationspurposes." On that basis, jurists of reasonwould not find the timeliness issue debatablein this circuit. Thus, a COA should not haveissued.

However, the district court did issue a COAon the statute of limitations issue. Althoughthe COA does not specifically state that theexceptions to the statute of limitations-State impediment and equitable tolling-areincluded within the COA, Lawrencecontends that these exceptions are subsumedwithin the COA and properly before thiscourt for consideration. We agree. To decidewhether the statute of limitations barsLawrence's federal habeas petition, we mustconsider whether a State impediment orequitable tolling excepts the one-year filingdeadline. If Lawrence can demonstrate that aState impediment prevented him fromtimely filing or that equitable tolling appliesto his case, then his petition is timely.

Lawrence contends that 28 U.S.C. §2244(d)(1)(B) applies to his case becausethe State caused an impediment to his timelyfiling by providing him with an incompetentattorney through the Florida counsel registrysystem. It is not clear, however, thatLawrence asserted a § 2244(d)(1)(B)impediment to the district court. Wegenerally do not consider an issue that wasnot raised in the district court. AssumingLawrence presented this issue to the districtcourt, we conclude that Lawrence's assertionthat the State impeded him from timelyfiling by providing an incompetent attorneyto assist him after setting up a State registrysystem to monitor attorney performance, ismeritless. This is not the type of State

impediment envisioned in § 2244(d)(1)(B).Additionally, Lawrence cannot show thatthere are extraordinary circumstancespresent in his case to warrant the applicationof equitable tolling. "Equitable tolling is anextraordinary remedy which is typicallyapplied sparingly." It is available "when amovant untimely files because ofextraordinary circumstances that are bothbeyond his control and unavoidable evenwith diligence." Equitable tolling is limitedto rare and exceptional circumstances, suchas when the State's conduct prevents thepetitioner from timely filing.

Making the most of a novel argument,Lawrence posits that the State's provision tohim of an incompetent attorney justifies theimposition of equitable tolling. This is notan extraordinary circumstance that warrantsthe application of equitable tolling.Moreover, we have stated on numerousoccasions that "attorney negligence is not abasis for equitable tolling, especially whenthe petitioner cannot establish his owndiligence in ascertaining the federal habeasfiling deadline."

Lawrence also contends that his mentalincapacity prevented him from timely filingand justifies the invocation of equitabletolling. However, Lawrence cannot establisha causal connection between his allegedmental incapacity and his ability to file atimely petition. Lawrence admits in hisappellate brief that medical reports state thathis full scale IQ is 81, and he admits that hedid not make the assertion that he wasmentally incompetent per se. Instead,Lawrence claims that his initial pleadingmade it clear that he has suffered frommental impairments his entire life. However,this contention, without more, is insufficientto justify equitable tolling.

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CONCLUSIONFor the above stated reasons, we affirm thedistrict court's order dismissing Lawrence's

habeas petition as untimely.

AFFIRMED.

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"On the Docket: Lawrence, Gary v. Florida"

Medill News ServiceMarch 28, 2006

Amy Held

Congress established the Anti-Terrorism andEffective Death Penalty Act in 1996 afterthe Oklahoma City bombings, in part to fundanti-terrorism efforts but also with an eye onvictims' rights in limiting the appealsprocess open to death-row inmates.

The Act significantly hampers death rowinmates' ability to apply for habeas relief, awritten petition stating the prisoner has beenwrongly imprisoned.

The AEDPA bars federal courts fromconsidering any petition for habeas corpusunless the state court has "unreasonably"interpreted some portion of the constitutionin finding the prisoner guilty.

The Act seeks to ensure "justice for victimsand an effective death penalty," according tothe text of the bill. It carries a one-yearstatute of limitations on habeas appeals infederal court.

Eleven years after his murder conviction andon his third try, Gary Lawrence, a Floridaman, will have his case heard by the U.S.Supreme Court on the statute of limitationsquestion.

On July 28, 1994, Lawrence bludgeonedMichael Finken to death with a pipe andbaseball bat before setting his body ablaze inSanta Rosa County, Florida.

Lawrence was seeking revenge on thesleeping man for having an affair with hisestranged wife. Lawrence's two youngdaughters witnessed the gruesome murder.

A jury convicted Lawrence of first-degreemurder in March 1995 and recommendedthe death penalty. The Florida SupremeCourt affirmed the sentence in August 1997.

After unsuccessfully appealing his sentencetwice, on March 11, 2003, Lawrence soughthabeas relief in federal court, but lawyers forthe state argued that his claim should bedismissed because he had already exceededthe time limit on both his original andamended petition based on the AEDPAprovision.

Lawrence argued that equitable tolling, or asuspension of the petition's time limitation,should apply in his case because his state-appointed counsel decided when to file thepetition. Lawrence said that even though heexceeded the time limit in the AEDPA, thestate itself should be held accountable.

Not only did Lawrence argue that hisattorney, John Miller, did not meet his dutiesas effective counsel but their relationshipwas also encumbered by the convictedmurderer's mental deficiencies whichprevented him from fully communicatingwith Miller.

On May 27, 2004, the district court notedthat Lawrence's petition for habeas reliefwas indeed invalidated by exceeded theallotted time but issued him a certificate ofappealability. Lawrence appealed to the 11thCircuit Court of Appeals.

On Aug. 26, 2005, the 11th Circuit said it

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only grants equitable tolling for"extraordinary circumstances that are bothbeyond (petitioner's) control andunavoidable even with diligence."According to the court, Lawrence did notmeet these criteria, despite his assertion thatthe state granted him an incompetentattorney.

The 11th Circuit stated that Lawrence coulddemonstrate no causal relationship betweenhis mental shortcomings and his ability tofile a timely petition, and thus his claim wasinvalidated. The appeals court stated furtherthat the district court was wrong to granthim a certificate of appealability, butacknowledged a disparity among the federalcircuits in how the time limit is applied.

Lawrence appealed and on March 27, 2006,the U.S. Supreme Court accepted the casefor review and allowed Lawrence to have hiscase heard without cost.

One of the issues to be considered by theCourt is from what date, exactly, the one-year statute of limitations for death penaltyappeals should derive. The Court is beingasked to decide whether it should beginwhen the court of appeals affirms theDistrict Court's conviction and sentence, orfrom the deadline for filing a petition withthe U.S. Supreme Court.

The Act allows for one year for federalappeals and any additional time the casemay be pending on state post convictionreview, but Lawrence is asking the SupremeCourt to decide whether this means only thetime pending in state court or includes thetime the convicted murderer asked theSupreme Court to take the case, according toKent Scheidegger, Legal Director of theCalifornia-based Criminal Justice LegalFoundation.

Scheidegger said that before the Act'sintroduction in 1996 the appeals processtook about 12 years from the time ofsentencing to execution and that the processstill takes about 12 years today. He said,however, that the appeals process was"steadily increasing" before the Act tookeffect, so at the least it has stopped theprocess from becoming ever-lengthier.

The Act states that this "reform will helpavoid the waste of state and federalresources that now result when a prisonerpresenting a hopeless petition to a federalcourt is sent back to the state courts toexhaust state remedies."

"As a whole the act has caused the time tolevel off and stop increasing but has notdecreased as much as proponents wouldlike," Scheidegger said.

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"Floridian Sentenced in Iowan's Death"

Omaha World Herald (Nebraska)May 7, 1995

Stephen Buttry

A Florida man has been sentenced to die inthe electric chair for torturing and fatallybeating his wife's lover, a Council Bluffsman who was planning to return to Iowa thenext day.

Circuit Judge Paul Rasmussen cited the"torturous process" used to kill MichaelDean Finken, 37, as an aggravating factor tojustify the death sentence Friday of GaryLawrence, 37, of Milton, Fla.

Finken's father, Francis Finken of CouncilBluffs, said he wired $ 200 to his son theday he was killed. "He was coming backhome, supposed to leave the next day," theelder Finken said.

Lawrence beat Finken with an aluminumbaseball bat at the Lawrences' home andrammed a mop handle down the victim'sthroat. His body was burned beyondrecognition and left on a nearby countryroad where it was found last July 29.

Lawrence's wife, Brenda, 34, was sentencedlast week to life in prison after she wasconvicted of being a principal to murder.

The Lawrences' three children testified at

the couple's trials, along with Francis

Finken. "I was there for his whole trial,"Finken's father said. "Their mother was the

one that said, 'Let's get rid of Mike. ' " The

children had been asleep on a couch and

begged Lawrence to stop hitting Finken.

"The victim, having been beaten, not able to

feel his legs, and then beaten again, must

have surely realized his death wasimminent," Rasmussen said.

The Lawrences made their children get rid

of the weapons used to torture and kill

Finken, his father said.

Finken's brother Rick, also of CouncilBluffs, said his brother had been living witha woman in Billings, Mont., and had a 6-year-old daughter, Maria. He returned lastyear to Council Bluffs for a few months.

A cousin who was a carpenter visited the

family in Council Bluffs. After the visit,Michael Finken gave the cousin a ride to hishome in Florida and "just stayed on for awhile," Rick Finken said.

Finken was killed when Lawrencediscovered he had been sleeping with hiswife. "They all went out and got drunk thatday," Francis Finken said.

Michael Finken held a variety of jobs,including working for a lawn service anddoing carpentry odd jobs and small roofingjobs, his brother said. "He was kind of a jackof all trades." He attended Abraham LincolnHigh School and obtained a high schoolequivalency certificate through the school,Rick Finken said.

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Section 5: Criminal Procedure

Documents