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                            College of William & Mary Law School
William & Mary Law School Scholarship Repository
	1992
Section 3: Preview of the Court's Docket
	Institute of Bill of Rights Law at the William & Mary Law School
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24_1992-1993SupCtPreview[cvi](1992-1993)
25_1992-1993SupCtPreview[iv](1992-1993)
26_1992-1993SupCtPreview[ii](1992-1993)
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College of William & Mary Law School
William & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

1992

Section 3: Preview of the Court's Docket
Institute of Bill of Rights Law at the William & Mary Law School

Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
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Page 2

PREVIEW OF THE COURT'S DOCKET

Section: Press Preview

Page 91

954 FEDERAL REPORTER, 2d SERIES

collaterally attack a conviction is not a
right guaranteed by the Constitution.
Pennsylvania v. Finley, 481 U.S. 551, 107
S.CL 1990, 1994, 95 L.Ed.2d 539 (1987).

In Townsend, the Court held that a fed-
eral habeas court must grant an evidentia-
ry hearing on an allegation of newly discov-
ered evidence only when the evidence
"bearfs] upon the constitutionality of the
applicant's detention; the existence merely
of newly discovered evidence relevant to
the guilt of a state prisoner is not a ground
for relief on federal habeas corpus." 372
U.S. at 317, 83 S.Ct. at 759. We have
recognized the above statement as the
Court's holding in at least two cases, Arm-
stead v. Maggio, 720 F.2d 894, 896 (5th
Cir.1983) (per curiam) and Boyd v. Puckett,
905 F.2d 895, 896 (5th Cir.), cert, de-
nied, - U.S. -, 111 S.Ct. 526, 112
L.Ed.2d 537 (1990).

(8] Thus, once Herrera's Brady claim is
rejected, Herrera's "actual innocence"
claim does not allege a ground upon which
habeas relief can be granted. Under Texas
law, a claim of innocence based on newly
discovered evidence is grounds for a new
trial, but such a claim will not support
collateral review. See, e.g., Ex parte Bind-
er, 660 S.W.2d at 105-06. Herrera, there-
fore, has presented no claim for collateral
relief under Texas law. Consequently, we
can find no legal justification to permit him
to present, in piecemeal fashion, additional
affidavits to the state court. We conclude
that the district court erred in granting a
stay of execution for this purpose.

May v. Collins relied upon as an alter-
nate ground for a stay, is inapposite. The
question in May concerns whether a find-
ing of fact by a state habeas court, based
upon affidavits alone, is entitled to the
presumption of correctness. But the facts
at issue in May implicated a constitutional
defect in May's conviction. No such ques-
tion is presented in this case.

III.
[9] The district court issued a certifi-

cate of probable cause (CPC) with respect
to claims 2-5 although it rejected any relief
on these claims. This certificate implies

that the district court found that
had made a substantial showing 3
denial of a federal right with res, .
these claims. Barefoot v. Estelle, 4& U.S
880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 Il4Ordinarily a stay of execution accomrpar
such a finding, and we are unce
whether the district court inadverte.
failed to grant a stay on these clai.,
Because of the ambiguity of the grat 4
CPC on claims 2-5 and the failure to 4
a stay, the press of time requires us t
address the propriety of the district cour.
issuance of CPC.

For reasons stated by the district cour,
we fully agree that claims 2, 3, 4, and 5 ar
barred because petitioner abused the wr.*
We find no substantial grounds upon which
relief might be granted on these claims.
Accordingly, we vacate the certificate of
probable cause as improvidently granted.
See Cuevas v. Collins, 932 F.2d 1078, io2
(5th Cir.1991).

In sum, on claim 1, we conclude that
Herrera has failed to present a substantial
ground upon which relief might be granted.
See Delo v. Stokes, 495 U.S. 320, 110 S.CL
1880, 1881, 109 L.Ed.2d 325 (1990). As we
stated above, the petitioner failed to allege
sufficiently particularized facts to entitle
petitioner to relief on his Brady claim.
The "actual innocence" claim standing
alone does not state a claim upon which
habeas relief can be granted by either a
federal habeas court or a Texas habeas
court. We therefore find no legal justifics
tion to stay the execution to allow petition*
er to litigate further in state court. Ac-
cordingly, we grant Collins's motion to va-
cate the stay of execution entered by the
district court.

1034

Page 92

592 ATLANTIC REPORTER, 2d SERIES

298, 306, 105 S.Ct. 1285, 1291, 84 L.Ed.2d
222 (1985) (prosecution may show "a suffi-
cient break in events to undermine the in-
ference that (a] confession was caused by
(a] Fourth Amendment violation"); Mi-
randa v. Arizona, 384 U.S. 436, 496, 86
S.CL 1602, 1639, 16 L.Ed.2d 694 (1966) (re-
quirement of a break in the stream of
events).

It is conceded that Minnick constitutes
no bar to questioning about a crime occur-
ring subsequent to the invocation of the
right to counsel. Far short of that, a num-
ber of cases have recognized that where a
suspect has been released from custody
and subsequently again detained, even for
the same crime, an invocation of the right
to counsel during the original confinement
does not prevent the police from seeking a
waiver of such a right upon the new con-
finement. See, e.g., Dunkins v. Thigpen,
854 F.2d 394, 397 (11th Cir.1988), cert. de-
nied, 489 U.S. 1059, 109 S.Ct 1329, 103
L.Ed.2d 597 (1989); United States v. Skin-
ner, 667 F.2d 1306, 1309 (9th Cir.1982),
cert. denied, 463 U.S. 1229, 103 S.Ct. 3569,
77 LEd.2d 1410 (1983).2

Similarly, I believe that the government
is correct in its assertion that when a de-
fendant has pled guilty to the charge which
prompted the invocation of the right to
counsel, circumstances have so significant-
ly changed that any coercive effect created
by the original confinement must be
deemed to have been dissipated, certainly
with respect to questioning about an entire-
ly separate and distinct crime. A suspect's
concern about self-incrimination that may
exist during pre-trial detention must be
dramatically affected once, with the advice
and assistance of counsel and subject to the
elaborate protections provided by Rule 11,
he has appeared in court and been convict-
ed from his own mouth. Such an event
entailing a knowing, voluntary and intelli-
gent waiver of the Fifth Amendment right
against self-incrimination and its conse-

496, but that interpretation does not, of course,
speak for the full court.

2. Here, for several months following his invoca-
tion of the right to counsel, appellant as a juve-
nile was apparently held not in any jail or
prison as such but rather was in the custody of

quent concerns-the very right that ed.
wards seeks to protect-should underrnir
any irrebuttable presumption that a subs.
quent waiver directed toward an entirely
unrelated crime is the product of contin'.
ing police coercion. I would so hold.

Kl UMlR systEm

Terrence L INGRAM, Appellant,

V.

UNITED STATES, Appellee.

No. 88-1345.

District of Columbia Court of Appeals.

Argued Jan. 22, 1991.
Decided June 5, 1991.

As Amended June 21, 1991.

Defendant was convicted in the Superi-
or Court, District of Columbia, Reggie B.
Walton, J., of armed robbery, and he ap-
pealed. The Court of Appeals, Ferren, J.,
held that (1) denial of severance was not
abuse of discretion; (2) evidence supported
conviction as accomplice; and (3) Govern-
ment's alteration of its theory of aiding and
abetting did not violate defendant's consti-
tutional rights.

Affirmed.

1. Criminal Law e622
When two defendants are charged

with jointly committing criminal offense,
there is strong presumption that they will
be tried together. Criminal Rule 8(b).

juvenile authorities. Nonetheless, the govern-
ment for purposes of this appeal assumes that
the appellant was in continuous custody for
purposes of the Edwards prophylactic rule. and
I deal with the appeal on that basis.

992 D. C._

Page 181

Bush crime bill
stirs habeas fight

PEALS, from 1-E
Prank v. Mangum, refused to help
IAlO M. Frank, a Jewish man found
guilty of raping and killing a young The Bush bill

Crsin woman In Atlanta. .
Despite evidence that an antiSe- Would bar federal

mitic mob bad prejudiced Franks
trial, the high court refused to hear appeals by many
his claims because they had already
been denied by Georgia courts after on death row.
.A full review.""-"- t o l

Later it was disclosed that the mob. CritiCS say it would
dominated atmosphere had fright.u h l vnu is
ened away a witness able to testify t uphold even unjust
Frank s innocence. By then, it was too
late. Frank had been executed. State ourt

The administration's proposed re o
form of habeas corpus, Curtin told convictioRs.
the Senate Judiciary Committee, Jack Carlton House
"might well be the Leo M. Frank bill Lawyers "too busy" to prepare case
-a bill to make the discredited rule

'and the barbaric result of Frank v.
Mangum the:! law of the United-. they undermine the integrity of the der the prisoners brought into court.

,States." .s. . - entire criminal justice system." ., where they could challenge their
.vrBut.administration officials, Chief :.. John A. Collins. who .directs a. confinement
Justice:William H. Rehnquist, hi ,lcrime victims' organization in IntheUnitedStates.federalhabeas

rconservative goleagies on the So. ,Springfield, Va., summed up the case corpus has been widely used not to
-preme Court, most prosecutors and. for the victims' families in a recent decide the guilt'or innocence of a
[the families of victims of crime take ,Senate appearance* . defendant, but to' be certain that
va far different view of habeas corpus. : "Justice aplenty for the killer, with even the guiltiest., most depraved-
'!iTo them, habeas corpus is a consti. delays, continuances. reviews, stays, killer gets fair treatment
utional. guarantee jgone. out of ,tests, hearings, examinations. re.'.1 The purpose of federal review is to
back, an extraordinary maze of re hearings, appeals and petitions. determine whether 'state proceed-

petitive, precemeal' chaotic and . "For us, the victims, neglect. un- ings - often overseen by elected
seemingly endless appeals 'certainty, waiting, frustration, more judges closely tied to their communi-

-They see457 convicted murder- waiting. Injustice and a growing ties-were, In the words of the great
ers on death row filing 13,000 habeas sense of despair." ''. jurist Oliver Wendell Holmes, "more
petitions a year In a convoluted sys Collins has bad a long wait of his than an empty shel"
tem in which only 146 killers have own. His daughter was raped and But state courts have Improved sig.
been executed since the Supreme murdered in 1985. The convicted nificantly in recent decades, and
Court restored the death penalty in killer, having completed four years state judges resent implications that
197&..........:r.....of appeals in state courts, is. just they cannot protect the constit*-
Pi ales executed in 1988 the beginning his federal appeals. tional rights of criminal defendants.

average time from sentence to execu- "What we are trying to do," said Still, significant constitutional er-
tion was six years and eight months. White House chief of staff John H. rors continue to be uncovered in I
" It has been 13 years since Robert Sununu, "is to make sure that some. federal courts. In 1989, when theN"
Alton Harris killed two San Diego thing that is a principle of protection Ninth U.S. Circuit Court of Appeals I
high school boys, shooting one of the; does not become a mechanism for overturned a Montana death sen-
boys as he prayed for;his life - and ' unlimited procrastination. ... It's tence, Judge Stephen Reinhardt ob.

tthen finished the victims' half-eaten .where the Supreme Court is headed." 'served.'
'hamburgers: V Indeed it is. .t:.: * ' ' "The mockery ofourcriminal jus.,
c" Harris has remained aliveon death *a <Rehnquist: and. .the other high tice system lies not in repetitive fed-'
:'row' while his resourceful lawyers court conservatives did not wait for eral review but in the persistent dls.
carried -various issues through .75.. legislation. They have placed new regard by our Istatel courts of
stati and federal court reviews, in.. limitson federal habeas corpus three fundamental constitutional rights."
cluding four separate appeals to the times in the last three years. '' "Some inmates have gone to their
Supreme Court ..- £ t . . In 1989 and 1990 decisions, they" deaths despite the existence ot clear'.

14 Now after coming within days of made it clear that Inmates may not constitutional errors." said Ameri-
execution at Sen Quentin, Harris is take advantage of new constitutional can University's Robbins. "We know
awaiting word from afederal appeals rulings, Issued after their convic that, because their co-defendants
panel in San Francisco on two new., 'dons became final In state courts. In won reversals. There are at' least
issues. including alleged perjury by April they closed the doors to most three cases like that.".........
a celmate." . ',' , . prisoners seeking to challenge the,' In one of them, Rebecca Machetti

Y And there is the case 'of William constitutionality of their convictions masterminded the murder plot and
Andrews, who forced his victims to,'. a second time in federal court. ber husband. Tony, fired the shots.
'drink' Drano in a stereo store in * The latest ruling predicted Justice Both were convicted and sentenced3
Ogden,' Utaf. 17 years ago. He has Anthony M. Kennedy,. "should cur* to death. ' .,

*been on death row ever since, while, tail the abusive petitions that in re. But on appeal in the federal courts,
his sentence has been reviewed 27 cent years have threatened to under. Rebecca Machetti's lawyers succas.
times - and there is "still no end in mine the integrity of the habeas- fully argued that the jury system in
sight." complained Sen. Orrin G. corpus process." -. . . .Bibb County, Georgia, systematically
Hatch (., Utah). p - Habeas corpus. which Alexander ' excluded women. She got a new trial

"-When society promises to punish' Hamilton called the greatest per., and was sentenced to life imprison-
:,by death certain criminal conduct, sonal liberty of all, has Its roots in ment.

and then the courts fail to do so," English history. When English kings Tony Machetts lawyers could
,Rehnquist-has written., "the courts ...threw prisoners into dungeons,, have raised the same issue. but did

1not only lessen the deterrent effect judges used writs of habeas corpus not do so until it was too late. He was
of the threat of capital punishment. (literally. "to have the body") to or- executed.

Page 182

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