Review proceedings

Review proceedings

Cummings, Lawton P

NEW TRIAL

On the motion of a federal defendant, a federal district court may grant a new trial “if required in the interest of justice.”2547 A motion based on newly discovered evidence must be filed within two years of final judgment.258 Motions based on all other grounds must be filed within seven days after the verdict,249 or within such additional time as the court may fix during the seven-day period.255 To obtain a new trial based on newly discovered evidence, the defendant must show that: (1) the evidence was discovered after trial;2551 (2) the failure to learn of the evidence at the time of trial was not due to the defendant’s lack of diligence;2552 (3) the evidence is material to the issues involved;2553 (4) the evidence is authentic,2554 and not merely cumulative or impeaching;2?5 and (5) a new trial would probably produce a different result.2556 If, however, the defendant alleges that the verdict was against the weight of the evidence, a new trial will be granted only in exceptional circumstances.2557

The trial court may hold an evidentiary hearing on the merits of a motion for a new trial.2558 Because the trial court is in a superior position to assess the effects of errors or new evidence,2559 an appellate court will reverse a ruling on a motion for a new trial only for abuse of discretion.256

Lawton P. Cummings

APPEALS

Jurisdiction. In order to avoid “the delays and disruptions attendant upon intermediate appeal,”2561 federal courts of appeals may review only final decisions of the district courts.2562 Generally, an appeal may be taken only after the district court has imposed a sentence.2563 Once effective notice of appeal is filed, the district court can be deprived of jurisdiction over the case.2564

In a narrow set of circumstances, however, immediate appeal of a pretrial order is available. In Cohen v. Beneficial Industrial Loan Corp.,2565 the Supreme Court articulated an exception to the final judgment rule for judgments that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”2566 This exception, known as the collateral order doctrine, allows appeal from a judgment that (1) conclusively determines the disputed issue, (2) is completely separate from the issue of the defendant’s guilt, and (3) is effectively unreviewable on appeal from a final judgment.2567

The Supreme Court has held that denials of three types of motions are immediately appealable under the collateral order doctrine: (1) pretrial motions to dismiss an indictment based on the Double Jeopardy Clause,2568 (2) pretrial motions to dismiss an indictment based on the Speech and Debate Clause,2569 and (3) motions to reduce excessive bail.2570 The Court has not, however, permitted immediate appeal of pretrial denials of motions alleging constitutional speedy trial violations,2571 prosecutorial vindictiveness,272 grand jury procedural violations,2573 motions to suppress evidence,2574 or motions to disqualify defense counsel.2575 Furthermore, the courts of appeals have not allowed immediate appeals of judgments involving procedural issues,2576 denials of motions to disqualify a prosecutor2577 or judge,2578 or attempts to enforce plea bargains with the government.25’9 If a defendant files a motion for return of property under Rule 41(e) of the Federal Rules of Criminal Procedure, and if the motion is entirely unrelated to an existing criminal prosecution, the denial of that motion is regarded as independent, final, and immediately appealable.2580

Notice of Appeal. If an appeal is available, it must be pursued in a timely manner. Rule 4(b) of the Federal Rules of Appellate Procedure requires a defendant to file a notice of appeal258l within ten days “after the entry either of the judgment or order appealed from, or of a notice of appeal by the Government.”2582 The government must file a notice of appeal within thirty days “after (i) the entry of the judgment or order appealed from or (ii) the filing of a notice of appeal by any defendant.”2583 A district court may extend a party’s filing period for up to thirty days upon a showing of “excusable neglect.”2584

Federal Government Appeals. The federal government may appeal an adverse ruling in a criminal prosecution only when authorized by statute and not barred by a constitutional provision.2585 The primary constitutional limit on government appeals is the Fifth Amendment’s prohibition against double jeopardy.2586 The Criminal Appeals Act2587 provides statutory authority for government appeals in federal criminal prosecutions, thereby removing all nonconstitutional barriers to such appeals.2588 The Act authorizes federal prosecutors to appeal orders dismissing indictments,2589 orders suppressing evidence,259 post-verdict new trial orders,2591 bail determinations,2592 and certain other final orders.2593

Concurrent Sentence Doctrine. If a defendant receives concurrent sentences on multiple counts of an indictment and if a conviction on at least one count is unchallenged or valid, an appellate court may in its discretion decline to rule on the validity of the convictions on the other counts.2594 This doctrine is inapplicable when a challenged conviction carries an additional penalty such as a separate fine,2595 or results in adverse collateral consequences.2596 A court may also refuse to apply the doctrine if the validity of an unchallenged conviction is questioned2597 or if conviction on multiple counts is barred by the Double Jeopardy Clause.2598

Because of the speculative nature of predicting future adverse consequences of an unreviewed conviction, the Ninth Circuit has rejected the use of the concurrent sentence doctrine.2599 Some courts have vacated the unreviewed conviction in order to avoid the possibility that a defendant would suffer future adverse consequences.2 If the conviction is vacated and circumstances change, however, the government may seek reinstatement of the conviction.2601

Preservation of Rights for Review. In order for an appellate court to review an issue, generally the appellant must have preserved the claim by making a specific objection at or before trial.262 Very few objections can be raised for the first time on appeal.263 The “contemporaneous objection rule” applies to claims of improper admission or exclusion of evidence,26 prosecutorial misconduct,265 judicial misconduct,2606 sentencing errors,27 erroneous jury instructions,28 juror bias,2 and claims of other trial errors.2610 Claims of ineffective assistance of counsel must be preserved by an objection at trial unless special circumstances exist.26l1 In a trial with multiple defendants, an objection is usually only effective for the defendant on whose behalf it is raised.2612 The contemporaneous objection requirement applies to the government as well as the defendant.2613 Failure to comply with a state’s contemporaneous objection rule may be considered an independent and adequate state ground sufficient to preclude federal review of the case.2614

Certain objections and defenses are not timely unless made by pretrial motion. These include objections and defenses based on defects in the institution of the prosecution,2615 defects in the indictment,2616 outrageous government conduct,267 motions to suppress evidence,2618 requests for discovery,2619 and requests for severance.2620 In addition, a party must make a timely, though not necessarily contemporaneous, objection to the selection of a magistrate2621 or to the contents of the magistrate’s report.2622 Although a guilty plea waives most claims relating to the deprivation of constitutional rights that occurred prior to the entry of the plea,2623 Rule 11(a)(2) of the Federal Rules of Criminal Procedure permits a defendant to enter a conditional plea of guilty, reserving in writing the right to appeal specified pretrial motions.2624

In addition to raising specific objections at the proper time, a defendant generally must continue to assert the objections throughout the trial.2625 A motion in limine, which attempts to exclude prejudicial evidence prior to its introduction, generally does not preserve a claim for appellate review.2626 A court may permit review, however, when an objection at trial would have been futile,2627 or when the defendant was ignorant of the facts supporting the claim raised on appeal.2628

Alvin C. Lin

Plain Error. Failure to preserve an objection for appellate review will preclude all opportunity of review only if it is deemed to be a waiver of the objection, that is, an “intentional relinquishment or abandonment of a known right.”2629 If, however, the failure to preserve is a mere forfeiture, such as failure to object at trial, the federal appellate court will consider whether an alleged irregularity amounts to “plain error.”2630 The Supreme Court has characterized plain error as error2631 that is “clear” or “obvious,”2632 and affects the defendant’s “substantial rights.”2633 In most cases, for an error to “affect substantial rights” it must be “prejudicial” and must have “affected the outcome of the District Court proceedings.”2634 The defendant bears the burden of persuasion with respect to this prejudice.2635

Whether an error amounts to plain error depends on the significance of the error in the particular case. Errors of a constitutional nature are more likely to be considered plain error than nonconstitutional errors.2636 Although a variety of practices constitute plain error,2637 claims frequently involve incorrect jury instructions,2638 improper admission of evidence,2639 errors in sentencing,26 or prosecutorial misconduct.26

Situations which make a finding of plain error less likely include improper conduct by defense counsel,2642 admissions by the defendant,2643 failure to request curative instructions at trial,2644 and existence of overwhelming evidence against the defendant.2645

If a defect is found to be plain error, a court may vacate for a new trial or reverse, but it is not required to do so.2646 A court should correct a plain error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”26′ Harmless Error. Even if the appellate court finds that error occurred at trial, the court may nonetheless affirm a conviction on the ground that the error was harmless.2648 The purpose of the harmless error rule is to avoid “setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.”2649

In the case of constitutional error, the Supreme Court has stated that a court may label the error harmless only upon determination beyond a reasonable doubt that the error did not contribute to the verdict.2650 For nonconstitutional error, the Court has rejected an examination of the correctness of the result; an appellate court need only determine with “fair assurance. . . that the judgment was not substantially swayed by the error.”2651 Curative measures taken at trial increase the likelihood of an appellate court finding the error harmless.2652

In analyzing an error, a court must distinguish classic trial errors, which are subject to harmless error analysis, from structural defects in the trial mechanism, which are not.2653 Errors subject to harmless error analysis include certain grand jury procedural violations,2654 variance between the indictment and the proof,2655 misjoinders of offenders or offenses,2656 errors in the plea colloquy,2657 admission of evidence in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights,2658 including admission of coerced confessions,2659 errors in voir dire examination of prospective jurors,2660 juror misconduct,2661 prosecutorial misconduct,2662prosecutorial misconduct,2662 Confrontation Clause violations,2663 absence of the defendant from trial proceedings,2664 improper exclusion of evidence,2665 errors in jury instructions,2666 failure to inquire whether a guilty plea is voluntary,2667 absence of the defendant from the return of a death verdict,2668 and errors in sentencing.2669

Other types of error, however, are immune from harmless error analysis because the right involved is so basic to a fair trial that an infraction can never be considered harmless. In Arizona v. Fulminante,2670 the Court noted that these violations include denial of the right to counsel,2671 the right to an impartial judge,2672 the right to a public trial,2673 and the right to self-representation at trial.2674 The Court has also held that harmless error analysis may not be applied to cases involving erroneous jury instructions regarding reasonable doubt,2675 racial discrimination in grand jury selection,2676 improper removal of potential jurors for cause in capital trials,2677 and certain discovery violations.2678 Furthermore, circuit courts have declined to apply harmless error analysis in the following circumstances:2679 egregious violation of the right to a fair trial,2680 violation of the right to choice of counsel,2681 improper amendment to the indictment,2682 failure to determine if the defendant understands the nature of charges against her,2683 failure to inform the defendant of his right to appeal his conviction,2684 impairment of the defendant’s right to peremptory challenges,2685 and denial of the right to a jury trial.2686

Tamar Todd

Alvin C. Lin

Tamar Todd

APPELLATE REVIEW OF SENTENCES

The Sentencing Reform Act of 1984 requires that all challenges to sentences be made on direct appeal, virtually eliminating the sentencing court as a direct avenue for the review of sentences.2687 Generally, the sentencing court may correct a sentence only on remand after a successful appeal.2688 The defendant may waive his or her right to appeal in a plea agreement, provided the waiver is knowing and VOluntary.2689

Either the government2690 or the defendant2691 may appeal a sentence (1) that is imposed in violation of law,2692 (2) that is a product of an incorrect application of the Sentencing Guidelines (“Guidelines”),2693 or (3) that is plainly unreasonable for an offense for which no sentencing guideline has been issued.2694 In addition, the defendant may appeal a sentence that includes a greater fine or term of imprisonment, probation, or supervised release than the maximum specified in the applicable guideline.2695 The government, with the personal approval of the Attorney General, the Solicitor General, or a Deputy Solicitor General,2696 may appeal a sentence that is more lenient than what the Guidelines prescribe.2697

In Koon v. United States,2698 the Supreme Court ruled that departures from the Guidelines are to be reviewed for abuse of the sentencing court’s discretion.2699 Appellate courts must give deference to a sentencing court’s discretionary departure, the Court reasoned, because the sentencing court has greater experience in criminal sentencing and is closer in proximity to the facts on which the departure is based.2700

An appellate court must remand2′ the case with any instructions it deems appropriate if the court finds that a sentence was imposed in violation of the applicable statute,272 was imposed as a result of an incorrect application of the Guidelines,2703 is outside the applicable Guidelines range and unreasonable,2704 or is plainly unreasonable in a case of offense for which no sentencing guideline has been issued.25

If the defendant or the government fails to raise an alleged sentencing error at sentencing, usually through an objection, the claim will only be reviewed on appeal for plain error.276 Even if the alleged sentencing error is plain error,2” an appellate court may still affirm the sentence on the ground that the error was harmless.2708

Correction and Reduction of Sentence Under Rule 35. Following a successful appeal of the sentence, the district court is required to correct the sentence either in accordance with the appellate court’s findings or, if the appellate court simply remands for further proceedings, in accordance with the district court’s own determination of whether the original sentence was incorrect.2’09

Notwithstanding an appeal of a sentence, a district court is permitted under Rule 35 to reduce a sentence to reflect the defendant’s subsequent, substantial assistance in the investigation or prosecution of another criminal.2’l0 Such a reduction may be granted only on motion by the government.2711 Prison terms may also be reduced for extraordinary or compelling reasons, but only on motion by the Bureau of Prisons.2712 A defendant may move for reduction of sentence under the Sentencing Reform Act only when the sentencing range under which the sentence was imposed is subsequently lowered.2713

Constitutional Challenges. The imposition of a sentence may violate the Eighth Amendment, which prohibits the infliction of cruel and unusual punishment2’l4 upon persons convicted of a crime.2’l5 The Cruel and Unusual Punishment Clause limits criminal punishment in three ways: (1) it “imposes substantive limits on what can be made criminal and punished as such” ;2716 (2) it prohibits certain kinds of punishment;2’l7 and (3) it prohibits punishment “grossly disproportionate” to the severity of the offense.2718 In Solem v. Helm,2719 the Supreme Court posited three criteria for analyzing the proportionality of sentences:2’20 (1) a comparison of the gravity of the offense with the harshness of the penalty; (2) a comparison of the sentence with those imposed for various offenses in the same jurisdiction; and (3) a comparison of the sentence with those imposed for the same or similar offenses in other jurisdictions.2’21 In Harmelin v. Michigan,2722 the Court was unable to agree on the effect of Solem. Two Justices denied that the Eighth Amendment contained any guarantee of proportionality.23 The three-Justice concurrence held that the only proper occasion for a comparative analysis of sentences bringing into play the second and third factors of Solem was “to validate an initial judgment that a sentence is grossly disproportionate to a crime.”2724 The dissent would continue to apply the three-prong Solem test, with “no one factor. . be[ing] dispositive.”2725

The Solem Court envisioned that invalidation of sentences based upon disproportionality would occur infrequently.26 Appellate courts generally do not disturb sentences imposed for noncapital felony convictions that fall within statutorily prescribed limits2727 unless the sentencing judge commits an abuse of discretion in imposing a sentence.2728

Larry Cunningham

HABEAS RELIEF FOR STATE PRISONERS

Habeas corpus is the exclusive federal remedy available to a state prisoner for collaterally challenging her conviction2’29 and seeking a speedier or immediate release.2’30 A prisoner petitioning for a writ of habeas corpus is contesting the legality of her detention2’31-not her guilt or innocence-and is concerned solely with violations of her Fourteenth Amendment right to due process.2732 Properly filed petitions should follow or closely approximate the format prescribed by federal or local rules2’33 and must state with specificity2734 the grounds for the requested relief.2735

Filing Deadlines. The Antiterrorism and Effective Death Penalty Act of 1996236 (Antiterrorism Act) establishes a one-year limitation273′ on filing habeas corpus petitions. The year runs from the latest of the following dates: (1) final judgment on direct review or “the expiration of the time for seeking such review”;2’38 (2) the removal of any state-imposed impediment that unconstitutionally prevented the filing of such a petition;2’39 (3) the Supreme Court’s recognition of a new, retroactively applicable constitutional right;2’4 or (4) the emergence or recognition of any new facts supporting the petitioner’s claim that “could have been discovered through the exercise of due diligence.”2741 The one-year statute of limitations begins to run at the occurrence of any of these four situations. In Lindh v. Murphy, 2742 the Supreme Court ruled that the AEDPA will not be retroactively applied to any non-capital habeas petitions that were pending as of April 24, 1996, the date the AEDPA became effective.2’43 The AEDPA will be applied retroactively in all capital cases.2744

Jurisdiction and Venue. Under 28 U.S.C. 2241,2745 federal courts have jurisdiction to entertain a state prisoner’s habeas corpus petition if his confinement is the result of a violation of federal law.2746 Such a petition may be filed in the district court for the district in which the prisoner is incarcerated or that in which she was convicted and sentenced.2747 To apply for a habeas writ, an individual must be in custody,2748 “custody” having been liberally construed by the courts to include significant restraints on personal liberty as well as physical incarceration.2749

A petitioner generally cannot challenge a conviction after her sentence has expired since she is no longer “in custody” under that conviction.2750 However, the court may rule on her petition if the expired sentence enhances a subsequent sentence275′ or if the petitioner will be subject to significant adverse collateral consequences from the challenged conviction.2752 Additionally, in Peyton v. Rowe,2753 the Supreme court ruled that a petitioner serving consecutive sentences is to be considered “in custody” under any one of them for purposes of filing a habeas petition.2’54 Thus, a petitioner serving consecutive sentences may challenge a sentence that has not yet begun,2’55 one that is currently running, or one that has expired,2’56 until all sentences have been served.

Cognizable Issues. Federal courts may entertain a state prisoner’s petition for habeas relief only on the grounds that the prisoner’s confinement violates the Constitution, laws, or treaties of the United States.2’5′ A violation of federal or state law is not cognizable in a federal habeas proceeding unless the violation is of constitutional magnitude.2758 Thus, general improprieties occurring in state proceedings are cognizable only if they resulted in fundamental unfairness and consequently violated the petitioner’s Fourteenth Amendment right to due process.2’59 Common claims include: Sixth Amendment claims of ineffective counsel,2’60 Fifth Amendment claims of statements obtained in violation of Miranda v. Arizona,2761 improper conduct by the prosecutor2762 or judge,2’63 and claims of insufficient evidence.2’4

A prisoner’s claim that she was convicted on insufficient evidence is cognizable on federal habeas corpus review as a violation of due process. The court will grant habeas relief only if the prisoner can show that no rational trier of fact, viewing the evidence in the light most favorable to the prosecution, “could have found the essential elements of the crime beyond a reasonable doubt.”2’65 Therefore, a claim of actual innocence based on newly discovered evidence is not a cognizable habeas issue2766 absent an independent constitutional violation in the underlying criminal proceedings that led to the prisoner’s conviction.2767

In Stone v. Powell,2768 the Supreme Court limited the scope of federal habeas corpus review of Fourth Amendment violations. The Court held that a state prisoner is not entitled to habeas relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at her trial if the state provided an opportunity for full and fair litigation of the Fourth Amendment claim.2769 This limitation on federal habeas claims does not apply to Sixth Amendment claims of ineffective counsel based on deficient representation in litigating a Fourth Amendment issue.2770

The habeas provisions of the AEDPA2771 impose further limitations for the granting of habeas relief. Under the AEDPA, habeas relief will not be granted for any claim adjudicated on the merits in state courts unless the decision was (1) “contrary to, or involved an unreasonable application of” federal law clearly established by the Supreme Court,27’2 or (2) “based on an unreasonable determination of the facts.” 2773 Habeas relief may also be unavailable if granting the relief would require the announcement or application of a new constitutional rule of criminal procedure.2774

In Teague v. Lane,2775 the Supreme Court held that a “new rule”2776 will not be applied retroactively on habeas review of cases which have become final2777 before the new rule is announced2778 unless the new rule falls under one of two exceptions: (1) it “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,”2779 or (2) it is a “watershed rule of criminal procedure” implicating the fundamental fairness and accuracy of the proceeding.2780 Moreover, in Lockhart v. Fretwell,2’8′ the Supreme Court held that a new rule may be applied retroactively to uphold a state decision against a habeas corpus challenge.2782

Adrienne Jennings Lockie

Exhaustion and Procedural Bar. In general, a federal court may only grant habeas corpus relief to a state prisoner who has exhausted available state remedies.2783

Under the exhaustion requirement, the prisoner must present the substance of her claim to the state courts to allow the state courts “an opportunity to apply controlling legal principles to the facts bearing upon [her] constitutional claim.”2’84 The state court need not address the claim in a written opinion to satisfy this requirement.2785 If the claim is “raised for the first and only time in a procedural context in which its merits will not be considered,” the fair opportunity requirement is not satisfied and the bar against federal review will apply.2786 The state “shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the [s]tate, through counsel, expressly waives the requirement.”2787

Federal courts may dispense with the exhaustion requirement if further state litigation would be futile2788 and in other limited circumstances.2789 Exhaustion is also unnecessary when “there is an absence of available [s]tate corrective process” or the procedures available would be “ineffective to protect the rights” of the petitioner.2790 If the petitioner fails to satisfy the exhaustion requirement prior to bringing her federal habeas claim and none of the exceptions apply, the federal court cannot grant habeas relief to the petitioner.2791 The federal court may, however, deny the habeas corpus petition on the merits even if the petitioner failed to exhaust the available state remedies.2’92

Federal courts cannot consider habeas petitions containing both exhausted and unexhausted claims.2793 A state prisoner who submits such a “mixed petition” may either return to the state courts to exhaust all her claims or amend the petition to present only exhausted claims to the federal district court.2794

If the petitioner fails to present a federal constitutional claim to the state court in the manner prescribed by the state court’s procedural rules, the state court may decline to address the claim.2795 So long as the procedural default rests upon “adequate and independent state grounds,”2796 the petitioner is generally barred from obtaining federal habeas review of the defaulted claim.2797 Federal habeas courts will presume that no adequate and independent state grounds exist when the state court’s decision “fairly appears to rest primarily on federal law or to be interwoven with federal law”2798 and when “the adequacy and independence of any possible state law ground is not clear from the face of the opinion.”2799

In Lambrix v. Singletary,2800 the Supreme Court held that ordinarily, a federal court hearing a habeas corpus claim should first determine whether the claim is procedurally barred, prior to considering Teague v. Lane’s2801 prohibition of federal habeas claims based on “new” rules of constitutional law announced after a case has become final.2802

If the last state court to which a federal claim is presented, however, ignores a potential state procedural default and reaches the merits of the claim, federal habeas courts may consider the claim.2803 If the state court addresses both the substantive merits and a state procedural default in rejecting a petitioner’s claim, federal habeas review of the claim remains precluded unless the presumption against adequate and independent state grounds is applicable.28 When the last state court judgment does not indicate whether it is based upon procedural default or the merits of a federal claim, the federal court will presume that the state court relied upon the same grounds as the last reasoned state court opinion.2805

When the state court decision is found to rest upon independent and adequate state grounds, the petitioner may obtain federal habeas review only by demonstrating either (1) cause for her procedural default and actual prejudice as a result of the alleged violation of federal law286 or (2) that failure to review the claims will “result in a fundamental miscarriage of justice.”280′ The Supreme Court explained the cause and prejudice requirement in Murray v. Carrier,2808 in which the Court stated that the “existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”289 Under this standard, cause can be demonstrated by showing that the “factual or legal basis of a claim was not reasonably available to counsel”2810 or that governmental interference rendered procedural compliance impracticable.281

Delayed Petitions. In addition to the one-year filing deadline established by the Antiterrorism Act, Rule 9(a) of the Section 2254 Rules2812 holds that a district court may dismiss a state prisoner’s petition if any delay in filing the petition has prejudiced the state’s “ability to respond.”2813 The court will not dismiss the petition however, if the petitioner shows that the alleged grounds for relief could not have been discovered with reasonable diligence before the events prejudicing the state occurred.2814

Second or Successive Petitions. The habeas provisions of the Antiterrorism Act establish new procedures governing the disposition of second or successive petitions.28l5 A second or successive petition2816 must pass through a “gatekeeping” system28′ that requires the petitioner to move for an authorization order before a three-judge panel in the appropriate court of appeals.28 The district court will not hear the petition absent such authorization.

At the gatekeeping stage, a petitioner, in order to obtain an authorization order, must make a prima facie showing of several requirements contained in 28 U.S.C.A. 2244(b). First, a petitioner must make a prima facie showing that the claim was not presented in a previous federal habeas petition.2819 Second, the petitioner must make a prima facie showing that (1) this new claim relies on a new rule of constitutional law that was previously unavailable;2820 or (2) the factual basis for the new claim “could not have been discovered previously through the exercise of due diligence”2821 and the facts underlying the claim, if proven and viewed in light of the whole evidence, show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner guilty of the offense.2822 The grant or denial of certification by the court of appeals is not appealable and is not subject to a rehearing.2823

Once the petitioner has received authorization from the circuit court, the petitioner may file her second or successive petition in district court. Nonetheless, a district court must dismiss this second or successive petition unless the petitioner can prove that her claim satisfies the section 2244(b) requirements set forth above.2824 In Felker v. Turpin,2825 the Supreme Court upheld the section 2244 limits on second or successive petitions as “a modified res judicata rule, a restraint on what is called in habeas corpus `abuse of the writ.’ “2826

Adrian J. Villaraos

Dismissal of Petitions. After a state prisoner has filed a federal habeas corpus petition the district court must examine the petition and any attached exhibits. If it plainly appears from the face of the petition that the petitioner is not entitled to relief, the judge must summarily dismiss the petition.282′ If the judge does not dismiss the petition, she must order the state to file an answer or other pleading within a specified time period2828 or order other appropriate action.2829 For example, the judge may authorize the respondent to move for dismissal of the petition on procedural grounds.2830 Petitioner’s procedural default is a defense that must be raised by the state or lost; the court is not required to raise it sua sponte.2831

Evidentiary Hearings. After the state’s answer to the petition and the record of the state court proceedings have been filed, the federal habeas court must determine whether an evidentiary hearing is required.

According to 28 U.S.C. (sec)2254(e)(2),2832 if the petitioner has failed to develop the factual basis of a claim in state court proceedings the district court may hold an evidentiary hearing only when the petitioner has shown that ( 1 ) either the claim relies on a new, retroactive rule of constitutional law2833 that was previously unavailable, or the claim relies on a factual basis that could not have been previously discovered by an exercise of due diligence;2834 and (2) the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted her.2835

When a federal habeas court grants the petitioner an evidentiary hearing, the court may appoint a federal magistrate to conduct the proceedings.2836 When served with the magistrate’s findings, the parties must file written objections to the report within ten days.283′ The district court must consider the parties’ objections and may accept, reject, or modify any part of the magistrate’s report.2838

Under 28 U.S.C. (sec)2254(e)(1), the federal habeas court generally must accord a presumption of correctness to a state court’s factual determinations to which the petitioner was a party.2839 The Supreme Court has applied the 2254(e)(1) presumption of correctness to state courts’ factual findings regarding juror exclusion for cause,2840 juror partiality,2841 witness identifications,2842 competency to stand trial,2843 competency to waive post-conviction proceedings,2844 and culpability.2845 When the presumption is applicable the state court’s factual findings are presumed correct unless the petitioner can show by clear and convincing evidence that the findings were erroneous.2846

The(sec) 2254(e)(1) presumption of correctness does not apply to “questions of law”2847 or “mixed questions of law and fact.”2848 Prior to the Antiterrorism Act, a federal habeas court independently reviewed these determinations.2849 Under the Act more deference is given to the state courts.2850

Right to Legal Assistance. The Sixth Amendment right to counsel does not apply to habeas corpus proceedings.2851 Thus, 28 U.S.C. 2254(i) provides that the ineffectiveness of counsel during federal or state habeas proceedings shall not be a ground for relief under 2254.2852 A state prisoner, nonetheless, is constitutionally entitled to some form of legal assistance, such as access to adequate law libraries or the aid of persons trained in the law, in preparing her habeas corpus petition.2853

An indigent petitioner seeking to vacate or set aside a death sentence is statutorily entitled to appointed counsel, as well as expert and investigative services.2854 Additionally, in both capital and noncapital cases, the court must appoint counsel for an indigent petitioner when an evidentiary hearing is required2855 or when necessary for the petitioner’s effective utilization of discovery.2856 Otherwise, the court may appoint counsel at any stage of the habeas proceeding when the interests of justice so require.2857 Petitioners who proceed in forma pauperis may obtain copies of pertinent documents or portions of the record without cost.2858

Remedies and Appeals. The federal courts must decide a state prisoner’s habeas petition “as law and justice require.”2859 While a petition is pending, a federal district or appellate court may stay any state court proceeding against the petitioner, including execution.2860

In granting habeas relief, the federal court may order the state to resentence a petitioner,2861 reclassify a petitioner’s conviction,2862 or grant the petitioner a retrial on specific issues.2863 Unconditional release of the petitioner is a remedy of last resort which is generally granted only when a state has failed to comply with federal court orders specifying other forms of relief.2864

If the petitioner wishes to appeal from a final order2865 denying habeas relief, she must apply for a certificate of appealability to the district court judge who rendered the decision or to a circuit judge.2866 The petitioner must comply with the thirty-day deadline and other procedures governing the filing of appeals.2867 A district or circuit court judge may issue a certificate of appealability only if the petitioner has made a “substantial showing of the denial of a constitutional right.”2868 When issuing a certificate of appealability, the judge must indicate which specific issues satisfy the “substantial showing” standard.2869 The certificate permits review of these indicated issues on appeal.2870 The courts of appeals will overturn factual determinations of district courts only when those determinations are clearly erroneous.2871

In Hilton v. Braunskill,28’2 the Supreme Court established an equitable test for determining whether to release a prisoner pending appellate review of a district court’s decision to grant the writ and discharge the prisoner.2873 The Court stated that the appellate court should accord a presumption of correctness to the district court’s custody decision.2874

Capital Cases. The Antiterrorism Act created a new chapter of Title 28 applicable to state prisoners subject to capital sentences.2875 Chapter 154 of the Act established an “opt-in” procedure allowing states to trigger expedited federal habeas review of capital cases by providing counsel for indigent death-sentenced prisoners in state postconviction proceedings.2876 If a petitioner’s capital sentence was imposed by a state which has opted in, her petition must be filed in the district court no later than 180 days after her conviction becomes final.28″ This filing deadline can be tolled by (1) the filing of a petition for certiorari in the Supreme Court for direct review of the state decision, (2) filing of the first petition for state collateral relief,2878 or (3) the filing of a motion for extension in the district court if the petitioner shows “good cause for the failure to file” the petition within the filing deadline.2879 Any petition filed after the deadline is treated as if it were a second or successive petition rather than an initial petition.2880

By opting into Chapter 154 the state not only limits the time period in which the capital prisoner can file a federal habeas petition but narrows the scope of federal review as well.2881 Under 28 U.S.C. . 2264, a district court hearing a petition from such state prisoner can hear only those claims raised and decided on the merits in the state courts below unless (1) the state illegally prevented the petitioner from raising the claim, (2) the claim is the result of a new, retroactively applicable federal right recognized by the Supreme Court, or (3) the claim is based on facts that could not have been earlier discovered through due diligence.2882 Furthermore, Chapter 154 mandates expedited review and disposition of all petitions filed in capital cases.2883

Under Chapter 154, a capital prisoner can receive a mandatory stay of execution by filing an application in the appropriate federal court under 28 U.S.C. (sec)2262.2884 The stay of execution will expire upon (1) failure to timely file a habeas petition, (2) waiver of the right to file such petition, (3) failure to show denial of a federal right in a filed habeas petition, or (4) denial of habeas relief.2885 After expiration of a stay of execution, the state prisoner may secure another stay only upon receipt of authorization to file a second or successive petition under 28 U.S.C. (sec)2244(b).286

Julie Lehrman

Adrienne Jennings Lockie

Adrian J. Villaraos

Julie Lehrman

HABEAS RELIEF FOR FEDERAL PRISONERS

To obtain habeas relief, a federal prisoner must generally file a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. (sec)2255, rather than file a petition for habeas corpus.2887 The procedural rules for section 2255 motions differ from the rules governing habeas corpus petitions under sections 2241 through 2254.2888

Jurisdiction, Venue, and Cognizable Issues. A federal district court has jurisdiction to entertain a section 2255 motion only if the movant is in custody under sentence of a federal court.2889 If a person no longer satisfies the custody requirement under section 2255, she may still be able to vacate her conviction by writ of coram nobis.29 A section 2255 motion must be filed in the district court where the prisoner was sentenced.2891

Section 2255 provides four grounds that justify relief for a federal prisoner who challenges the imposition or length of her detention: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States” ;2892 (2) “that the court was without jurisdiction to impose such sentence”;2893 (3) “that the sentence was in excess of the maximum authorized by law”;2894 or (4) that the sentence is otherwise “subject to collateral attack.”2895 Despite this broad language, section 2255 motions which allege violations of federal law are generally cognizable only if they involve a “fundamental defect” causing a “complete miscarriage of justice.”Zs% Thus, violations of federal law often are not cognizable under section 2255.2897 Filing Deadlines. The Antiterrorism and Effective Death Penalty Act of 1996 (“Antiterrorism Act”) establishes a one-year period of limitation for the filing of a section 2255 motion.2898 Motions made after the one-year period will not be heard.2899

Exhaustion and Procedural Bar. Although section 2255 does not contain a provision requiring a prisoner to exhaust other available remedies,29 a movant must usually complete a direct appeal as a prerequisite to filing a section 2255 motion.291 In limited circumstances, this requirement will not be enforced.2902 Failure to raise a claim at trial or on direct appeal will generally result in waiver of the claim.2903 In United States v. Frady,29 the Supreme Court held that a federal prisoner must show both cause for her failure to object to procedural errors at trial and actual prejudice resulting from the alleged error in order to obtain habeas review.295 A prisoner, however, may secure collateral review based on facts not developed at trial without showing cause and prejudice if ignoring such facts would lead to a fundamental miscarriage of justice.206 Exceptions to the cause and prejudice requirement also will be allowed when the government fails to object to the consideration of newly raised issues2907 and for certain constitutional claims that may only be adequately addressed on collateral attack.2908

A prisoner’s initial section 2255 motion may be dismissed by the district court if it raises claims that were previously decided on direct appeal.29 An exception to this rule will be made if the movant relies on an intervening change in the law or newly discovered evidence.2910 In recent years, however, both Congress29’1 and the Supreme Court29’2 have decreased the availability of review based on new case law.

Delayed and Second or Successive Motions. Under Rule 9(a) of the, Section 2255 Rules, if a movant’s delay in filing a section 2255 motion is prejudicial to the government, the court may dismiss the motion.2913 Availability of relief under section 2255 through second or successive motions is severely limited. A district court may hear a second or successive section 2255 motion only if it has been certified by a three-judge panel of the appropriate court of appeals2914 to contain either: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.2915 Furthermore, a district court may dismiss a second or successive motion under section 2255 if it fails to allege new or different grounds from those previously determined on the merits.2916 In addition, a district court may dismiss a subsequent motion that alleges new and different grounds for relief if the movant’s failure to assert those grounds in a prior motion constitutes “an abuse of the procedure.”2917

Disposition of Motions Under the Section 2255 Rules. A motion filed pursuant to section 2255 must: (1) be substantially in the form of the model appended to the Section 2255 Rules; (2) specify all grounds for relief; (3) set forth in summary form the facts that justify relief; (4) state the relief requested; (5) be typed or written legibly; (6) be signed by the petitioner; and (7) be filed in the office of the clerk of the district court along with two copies.2918 If the clerk finds that the motion substantially complies with the pleading requirements, she will file the pleading and serve a copy on the United States Attorney.2919

Once the motion is filed by the clerk, it must then be examined by the judge who presided over the movant’s trial and imposed sentence.2920 If it plainly appears from the face of the motion that the movant is not entitled to relief, the judge must summarily dismiss the motion.2921 In making this determination, the court may construe pro se documents liberally.2922 If the judge does not dismiss the motion, she must order the United States Attorney to file an answer or to take other appropriate action.2923

The judge may order expansion of the record to include additional materials relevant to determining the merits of the motion.2924 After review of the earlier proceedings and examination of the expanded record, the judge must determine whether an evidentiary hearing is required.2925 The judge need not grant an evidentiary hearing if she can adequately supplement the record through her own recollection.2926 If the judge does grant an evidentiary hearing, the movant is entitled to notice and an opportunity to appear if her presence would help resolve substantial issues of fact as to events in which she participated.292′

Right to Legal Assistance. The Sixth Amendment right to counsel does not apply to section 2255 proceedings.2928 An indigent movant seeking to vacate or set aside a death sentence, however, has a statutory right to appointed counsel, as well as expert and investigative services.2929 Additionally, in both capital and noncapital cases, the court must appoint counsel for an indigent movant when an evidentiary hearing is required2930 or when necessary for the movant’s effective utilization of discovery.2931 In other circumstances, the court has considerable discretion in deciding whether to appoint counsel.2932

Indigent movants are entitled to free transcripts of prior proceedings if the trial judge certifies that the transcripts are needed and the claim is not frivolous.2933 A petitioner making a colorable claim that the written trial transcript does not adequately reflect the proceedings may gain access to other records of the trial that may exist.2934

Remedies and Appeals. Section 2255 gives a district court a broad range of remedial powers. The statute provides that if the court finds that the prisoner is entitled to relief, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”2935

Final orders and judgments issued pursuant to section 2255 are appealable only if a circuit justice or judge issues a certificate of appealability.2936 A circuit justice or judge may grant a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” and the certificate must indicate which specific issue or issues satisfy this showing.2937 On appeal, the circuit court is likely limited to review of those claims indicated in the certificate,2938 and will overturn the district court’s factual findings concerning these claims only if clearly erroneous.2939 The Supreme Court may review a lower court’s denial of an application for a certificate of appealability.2940 Appeals of postconviction relief orders must be made within sixty days of final judgment if the United States or an officer of the United States is a party.2941 If the movant shows excusable neglect or good cause, however, the district court may grant a thirty-day extension.2942

Jeffrey R. Mastracchio

2547. FED. R. CRIM. P. 33. Only a defendant who has been tried may invoke Rule 33. See U.S. v. Graciani, 61 F.3d 70, 78 (lst Cir. 1995) (defendant who pleaded guilty could not seek new trial under Rule 33 because he waived right to trial); U.S. v. Collins, 898 F.2d 103, 104 (9th Cir. 1990) (per curiam) (same); U.S. v. Gordon, 4 F.3d 1567, 1572 (lOth Cir. 1993) (same). Although a timely filed motion for a new trial is rendered moot when the district court grants a judgment to acquit, the district judge retains jurisdiction to consider the new trial motion on remand if the acquittal is reversed on appeal. U.S. v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). For the effect of a new trial motion on the timeliness of appeals, see Notice of Appeal in APPEALS in this Part.

Although this section addresses, principally, motions based on newly discovered evidence, new trials have been granted for a panoply of reasons. See, e.g., Agard v. Portuondo, 117 F.3d 696, 714 (2d Cir. 1997) (new trial granted for violation of defendant’s constitutional rights when prosecutor stated in summation that defendant strategically waited to testify until after all evidence was presented so he could concoct a story around the damaging evidence); U.S. v. Pelullo, 105 F.3d 117, 124 (3d Cir. 1997) (new trial granted when prosecution withheld evidence, in violation of Brady rule, that was both favorable and material to the defense); U.S. v. Lis, 120 F.3d 28, 29 (4th Cir. 1997) (new trial granted when exculpatory evidence wrongfully excluded at trial as “hearsay”); U.S. v. Schnitzer, 145 F.3d 721, 735 (Sth Cir. 1998) (new trial granted where government put on evidence of a legally impermissible theory of false entry); U.S. v. Keating, 147 F.3d 895, 904 (9th Cir. 1998) (new trial granted to both father and son defendants where at least one juror learned of extrinsic evidence of father’s prior state conviction on related events, and was a “reasonable possibility” that knowledge of the extrinsic evidence could have affected verdicts); U.S. v. Gallegos, 108 F.3d 1272, 1283 (lOth Cir. 1997) (new trial granted when court refused to address timely claim by defendant’s counsel that conflict of interest existed where counsel represented both defendant and key witness, whose testimony was prejudicial to herself but exculpatory to defendant); U.S. v. Arnold, 117 F.3d 1308, 1317 (llth Cir. 1997) (new trial granted when government failed to turn over taped conversations that could be used as impeachment evidence and to contradict testimony of key government witnesses).

2548. FED. R. CRIM. P. 33. If a case is appealed, the two-year period begins to run from the time the appellate court issues its mandate, rather than from the date of entry of judgment in the district court. U.S. v. Reyes, 49 F.3d 63, 66 (2d Cir. 1995); U.S. v. Dayton, 981 F.2d 1200, 1201 (llth Cir. 1993); see also U.S. v. Custodio, 141 F.3d 965, 965 (lOth Cir.) (allegations in supplement to new trial motion not considered because supplement filed more than two years after the appellate court’s mandate), cert. denied, 119 S. Ct. 243 (1998). The denial of a petition for writ of certiorari by the U.S. Supreme Court is not relevant for calculating the two-year time limit under Rule 33. See U.S. v. Spector, 888 F.2d 583, 584 (8th Cir. 1989) (per curiam) (trial court did not abuse discretion in denying new trial motion based upon new evidence filed more than two years after conviction but less than two years after certiorari denied); U.S. v. Cook, 705 F.2d 350, 351 (9th Cir. 1983) (same). The failure of the district court to expediently hear a new trial motion filed within the proper time limit does not affect the timeliness of the motion. Cf. U.S. v. Walgren, 885 F.2d 1417, 1426-27 (9th Cir. 1989) (trial court may hear motion for new trial based upon new evidence filed more than two years after conviction because court granted defendant’s motion to pursue evidence under Freedom of Information Act within two years of conviction). The two-year time limit cannot be circumvented by a motion to set aside a conviction under 28 U.S.C. 2255. Guinan v. U.S., 6 F.3d 468, 470 (7th Cir. 1993) (motion to set aside conviction on ground of newly discovered evidence does not involve reversible error claim and thus falls outside scope of 28 U.S.C. 2255, under which court may correct only jurisdictional or otherwise constitutional errors).

A district court loses jurisdiction to grant a motion for a new trial based on newly discovered evidence while an appeal is pending. FED. R. CRIM P. 33. The court may hear and deny the motion during pendency of an appeal, but the court may not grant the motion until the case is remanded. U.S. v. Graciani, 61 F.3d 70, 77 (Ist Cir. 1995); U.S. v. Coleman, 688 F.2d 663, 664 (9th Cir. 1982) (per curiam). State court rules may impose limits shorter than two years for new trial motions on the basis of new evidence. Herrera v. Collins, 506 U.S. 390, 409-11 (1993) (Texas rule allowing 30 days to file new trial motion on the basis of new evidence does not violate considerations of fundamental fairness). 2549. FED. R. CRIM. P. 33; see U.S. v. DiSanto, 86 F.3d 1238, 1250 n.12 (Ist Cir. 1996) (trial court lacked jurisdiction to grant new trial motion based on allegedly erroneous admission of evidence when filed 14 days after verdict), cert. denied, 117 S. Ct. 1109 (1997); U.S. v. Gaydos, 108 F.3d 505, 512 (3d

Cir. 1997) (trial court lacked jurisdiction to consider motions for a new trial after the seven-day period has expired, unless extension has been granted during seven-day period); U.S. v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991) (per curiam) (trial court lacked jurisdiction to consider new trial motion challenging application of sentencing guidelines when filed within seven days after sentencing, but more than seven days after verdict); U.S. v. Koehler, 24 F.3d 867, 869 (6th Cir. 1994) (trial court lacked jurisdiction to consider new trial motion based on ineffective assistance of counsel when filed over two months after jury verdict); U.S. v. Wiman, 77 F.3d 981, 987 (7th Cir. 1996) (trial court lacked jurisdiction to grant new trial motion based on ineffective assistance of counsel when filed more than seven days after verdict); U.S. v. Graham, 97 E3d 1145, 1147 (8th Cir. 1996) (seven-day period began at original verdict against defendant convicted of multiplicitous counts; remand to the district court requiring government to choose which single count to “leave in effect” did not restart clock); U.S. v. Barragan-Devis, 133 F3d 1287, 1290 (9th Cir. 1997) (court’s lack of response to jury notes was harmless error, and defendant failed to make a motion for a new trial within seven days so as to give the court an opportunity to explain the decision to ignore the note); U.S. v. Haddock, 956 F.2d 1534, 1544 (lOth Cir. 1992) (trial court lacked jurisdiction to consider second new trial motion based on violation of Ex Post Facto Clause and denial of right to counsel when filed more than two months after jury verdict); U.S. v. Calderon, 127 E3d 1314, 1348 (llth Cir. 1997) (trial court lacked jurisdiction to grant new trial based on improper contact between a court officer and a juror where the defendant knew of the contact prior to the verdict and did not file a motion for a new trial within seven days), cert. denied 118 S. Ct. 1328 (1998). But see U.S. v. Johnson, 982 F.2d 1192, 1195-96 (8th Cir. 1992) (trial court had jurisdiction to hear new trial motion based on prejudice arising from government’s abrupt change of strategy, despite its being filed more than seven days after verdict, because trial court set dates for hearings on other post-trial motions and thus verdict not considered final).

Even if the motion is filed within seven days, it may be considered untimely if the issue was not preserved for review during trial. U.S. v. Chandler, 996 F.2d 1073, 1102 (llth Cir. 1993) (trial court lacked jurisdiction to consider new trial motion based on Batson v. Kentucky, 476 U.S. 79 (1986) even though motion filed one week after trial because no objection made during voir dire).

2550. FED. R. CRIM. P. 33; cf U.S. v. Wiman, 77 F.3d 981, 987 (7th Cir. 1996) (seven-day limit not extended by trial court suggesting, in response to letter received from defendant within seven days, that defendant’s counsel consider possible grounds for post-trial motions, when new trial not specifically mentioned). Compare U.S. v. Coleman, 811 F.2d 804, 806-07 (3d Cir. 1987) (trial court lacked jurisdiction to extend time for filing new trial motion based on discovery violations after seven-day period expired, even though motion for extension filed within seven-day period, because extension not granted during seven-day period); U.S. v. Koehler, 24 F.3d 867, 869 (6th Cir. 1994) (trial court lacked jurisdiction to consider new trial motion based on ineffective assistance of counsel when filed two months after verdict and court had granted no extension within seven-day period); U.S. v. Benson, 941 F.2d 598, 608-09 (7th Cir. 1991) (trial court lacked jurisdiction to grant second extension for filing new trial motion based on government’s alleged presentation of perjured testimony after seven-day period expired), modified, 74 F.3d 152 (1992) and U.S. v. Hall, 854 F.2d 1269, 1271 (llth Cir. 1988) (trial court lacked jurisdiction to grant extension for filing second new trial motion after seven-day period expired, because grounds in second motion did not relate back to timely filed first motion based on insufficient evidence) with U.S. v. Gregory, 730 F.2d 692, 706 (llth Cir. 1984) (trial court may extend time for filing new trial motion orally before seven-day period expires).

2551. Information within the defendant’s knowledge at the time of trial does not constitute newly discovered evidence. See U.S. v. Levy-Cordero, 67 F.3d 1002, 1019 (Ist Cir. 1995) (new testimony of witness not newly discovered evidence where witness informed defendant’s counsel before trial of intention to refuse to testify for Fifth Amendment reasons); U.S. v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) (testimony of co-defendant who invoked Fifth Amendment at trial not newly discovered evidence where defendant and co-defendant personal friends, communicated regularly and had common interest at trial); U.S. v. Pierce, 62 F.3d 818, 825 (6th Cir. 1995) (confession of witness after defendant’s conviction not newly discovered evidence where defendant admitted prior knowledge of witness’s involvement in crime but chose to remain silent at trial); U.S. v. Theodosopoulos, 48 F.3d 1438, 1448 (7th Cir. 1995) (testimony of participant in drug transaction not newly discovered evidence where defendant and counsel knew substance of testimony during trial); U.S. v. Ryan, 153 F.3d 708, 712 (8th Cir. 1998) (computer modeling of fire not new evidence in arson case where the modeling may have been possible at the time of trial); U.S. v. Joelson, 7 F.3d 174, 179 (9th Cir. 1993) (declaration by wife of one of defendant’s co-conspirators that suggested defendant acted under duress not newly discovered evidence when defendant’s counsel spoke to woman before trial and decided not to call her); U.S. v. Muldrow, 19 F.3d 1332, 1339 (lOth Cir. 1994) (witness’s trial testimony not newly discovered evidence when defendant’s counsel knew about it prior to trial, and it would not have changed result of suppression hearing or trial);

Horton v. Zant, 941 F.2d 1449, 1466 (llth Cir. 1991) (information that other person confessed to crime not newly discovered evidence when indication that defendant knew of alleged confession before trial); U.S. v. Dale, 991 F.2d 819, 838-39 (D.C. Cir. 1993) (testimony of conspirators who refused to testify at trial not newly discovered evidence when testimony within defendant’s knowledge at time of trial). But see U.S. v. Montilla-Rivera, 115 F.3d 1060, 1065 (Ist Cir. 1997) (co-defendants’ testimonies, which were unavailable at the time of trial because co-defendants exercised Fifth Amendment privileges, exculpating the defendant a year after his conviction qualify as evidence unavailable at the time of trial). A claim of ineffective assistance of counsel does not constitute newly discovered evidence if the claim is based on information known to the defendant at the time of trial, even though the defendant may not have appreciated the legal significance of the information until later. Compare U.S. v. Lema, 909 F.2d 561, 565-67 (lst Cir. 1990) (ineffective assistance of counsel not newly discovered evidence when defendant knew of tapes that counsel failed to discover at time of trial); U.S. v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994) (ineffective assistance of counsel not newly discovered evidence when counsel allegedly failed to allow defendant to testify); U.S. v. Zuniga-Salinas, 945 E2d 1302, 1305-06 (Sth Cir. 1991) (ineffective assistance of counsel not newly discovered evidence when defendant knew counsel failed to introduce evidence at time of trial), affd in part and rev’d in part on other grounds, 952 F.2d 876 (1992) (en banc); U.S. v. Garcia, 19 F.3d 1123, 1126 (6th Cir. 1994) (ineffective assistance of counsel not newly discovered evidence when defendant knew facts of conflict of interest claim at time of trial); U.S. v. Brown, 742 F.2d 363, 368 (7th Cir. 1984) (ineffective assistance of counsel not newly discovered evidence when defendant knew of counsel’s misconduct before and during trial); U.S. v. Laird, 948 E2d 444, 446 (8th Cir. 1991) (ineffective assistance of counsel not newly discovered evidence when defendant aware at time of trial of all information upon which claim of ineffective assistance based); U.S. v. Jackson, 88 F.3d 845, 847 (lOth Cir. 1996) (ineffective assistance of counsel not newly discovered evidence when facts alleged in support of new trial motion known to defendant at time of trial) and U.S. v. Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997) (information known to the defendant at the time of trial supporting ineffective assistance of counsel does not constitute newly discovered evidence) with U.S. v. Johnson, 12 F.3d 1540, 1548 (lOth Cir. 1993) (new trial motion claiming ineffective assistance of counsel treated as motion based on newly discovered evidence when defendant could not have known of counsel’s negligent act until after trial). Some courts have held that ineffective assistance of counsel claims can never constitute newly discovered evidence. See U.S. v. Smith, 62 F.3d 641, 648 (4th Cir. 1995) (information supporting ineffective assistance of counsel claim not “evidence” within meaning of Rule 33); U.S. v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994) (Rule 33 motion based on newly discovered evidence limited to evidence that relates to elements of crime charged; newly discovered evidence of ineffective assistance of counsel does not fit this requirement); U.S. v. Medina, 118 F.3d 371, 372 (5th Cir. 1997) (information unknown to the defendant at the time of trial that supports ineffective assistance of counsel does not qualify as newly discovered evidence).

2552. See U.S. v. Levy-Cordero, 156 F.3d 244, 247 (Ist Cir. 1998) (new trial denied when evidence of new alibi could have been discovered upon due diligence by the defendant, as it involved his own whereabouts); U.S. v. Zagari, 111 F.3d 307, 322 (2d Cir.) (new trial denied when defendant failed to exercise due diligence to inquire whether prosecution’s witness was “crazy,” because defendant was cognizant of others who possessed knowledge of witness’s mental state), cert. denied, 118 S. Ct. 445 (1997); Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985) (new trial denied when testimony of witnesses who were friends of defendant could have been discovered with due diligence); U.S. v. Lowder, 148 F.3d 548, 552 (Sth Cir. 1998) (new trial denied when new evidence regarding alibi was not discovered due to defendant’s own lack of diligence); U.S. v. Gaitan-Acevedo, 148 E3d 577, 589 (6th Cir.) (new trial denied when co-conspirator made statement at end of trial that the defendant was not the one who delivered the drugs, because the co-conspirator’s existence was known to the defendant during the trial and was not discovered due to defendant’s lack of due diligence), cert. denied, 119 S. Ct. 256 (1998); U.S. v. Theodosopoulos, 48 F.3d 1438, 1449 (7th Cir. 1995) (new trial denied when defendant and counsel knew of witness’s testimony before trial but failed to exercise due diligence to secure it, instead giving missing witness instruction to jury and arguing to jury substance of missing testimony); U.S. v. Willis, 89 F.3d 1371, 1380 (8th Cir. 1996) (new trial denied when defendants failed to exercise due diligence by failing to subpoena known witness); U.S. v. Calderon, 127 F.3d 1314, 1348 (llth Cir. 1997) (new trial denied when airline ticket proving defendant took a different flight than thought during trial because defendant should have known that the proof was in existence somewhere and could have located it through due diligence).

2553. Compare U.S. v. Glantz, 884 F.2d 1483, 1486-87 (lst Cir. 1989) (new trial not warranted by newly discovered evidence that witness who testified to paying kickbacks later recanted testimony because new evidence “rather immaterial”); U.S. v. Zagari, 111 F.3d 307, 322 (2d Cir.) (new trial not warranted by newly discovered evidence that strongly suggested prosecution’s witness was “crazy”

because witness’s mental state was not material “in light of the substantial other cumulative evidence against the defendants”), cert. denied, 118 S. Ct. 445 (1997); Virgin Islands v. Martinez, 831 F.2d 46, 50 (3d Cir. 1987) (new trial not warranted by newly discovered evidence that defendant confessed at time of arrest because defendant capable of relaying same information to attorney and evidence became material only as result of defendant’s lying to counsel); U.S. v. Krenning, 93 F.3d 1257, 1268 (5th Cir.1996) (new trial not warranted by newly discovered evidence that in different trial government took different position on timing of defendant’s property lien, because instant fraud charge based not on lien, but on overstated value); U.S. v. Knipp, 963 F.2d 839, 846-47 (6th Cir. 1992) (new trial not warranted by newly discovered evidence that government witness paid money on behalf of co-defendant because no evidence as to purpose of payment and therefore evidence of doubtful materiality); U.S. v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996) (new trial not warranted by newly discovered intra-jury statements because such cannot be used to attack jury’s verdict); U.S. v. Mett, 65 F.3d 1531, 1533-34 (9th Cir. 1995) (new trial not warranted by newly discovered evidence of ineffective assistance of counsel when defendant brought motion more than seven days after verdict and “offered no evidence relating to the elements of the crime charged”); U.S. v. Toro-Pelaez, 107 F.3d 819, 828 (lOth Cir.) (new trial not warranted by newly discovered evidence of wire transfer record showing that defendant was provided with funds to establish himself in Kansas City because new evidence was not material to the issue of “whether [defendant] knew that he was transporting 200 kilograms of cocaine”), cert. denied, 118 S. Ct. 129 (1997) and U.S. v. Bryant, 117 F.3d 1464, 1469 (D.C. Cir. 1997) (new trial not warranted by newly discovered evidence that defendant was member of Marshal’s Association, “a private booster organization with no law enforcement status whatsoever,” because evidence immaterial to critical issue of whether defendant misrepresented himself as “special deputy marshal”), cert. denied, 118 S. Ct. 1510 (1998) with U.S. v. Stoddard, 875 F.2d 1233, 1238 (6th Cir. 1989) (new trial warranted by newly discovered evidence that bank not member of Federal Reserve System because membership established element of offense).

2554. U.S. v. Griffin, 84 F.3d 912, 929-30 (7th Cir. 1996) (new trial not warranted where witness’s recantation considered untrue); U.S. v. Barth, 990 F.2d 422, 425 (8th Cir. 1993) (new trial not warranted because affidavit of witness product of harassment); U.S. v. McKneely, 69 F.3d 1067, 1073 (lOth Cir. 1995) (new trial not warranted where new evidence “invented” testimony of known perjurer). 2555. See U.S. v. Cruz-Kuilan, 75 F.3d 59, 63 (Ist Cir. 1996) (new trial not warranted by newly revealed evidence of witness’s prior bad acts because witness admitted at trial to extensive criminal past and more evidence on “well-developed theme” would not have swayed jury); U.S. v. Damblu, 134 F.3d 490, 493 (2d Cir. 1998) (new trial not warranted by new evidence that witness “had greater involvement in and knowledge of the drug trafficking trade than she intimated at trial,” because it is cumulative impeachment evidence); Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985) (new trial not warranted by newly discovered evidence of affidavits bolstering defendant’s alibi defense because evidence cumulative in nature); U.S. v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (new trial not warranted by police officer’s post-trial indictment for perjury in another case because indictments subsequently dismissed and newly discovered evidence probably would not have produced acquittal), aff’d, 511 U.S. 485 (1994); U.S. v. Gonzales, 121 F.3d 928, 946 (5th Cir. 1997) (new trial not warranted by newly discovered evidence that prosecution withheld co-conspirator’s testimony denying defendant’s participation because evidence was merely cumulative of similar testimony presented at trial), cert. denied, 118 S. Ct. 726 (1998); U.S. v. Davis, 15 F.3d 526, 531-32 (6th Cir. 1994) (new trial not warranted by newly discovered evidence regarding arresting officer because such impeaching evidence not material and unlikely to produce acquittal); U.S. v. Severson, 49 F.3d 268, 273 (7th Cir. 1995) (new trial not warranted by newly discovered evidence of statement by police detective that she witnessed abusive questioning of arrestee because evidence could only have impeached detective who was not called at trial, and evidence of defendant’s participation in drug conspiracy overwhelming); LI.S. v. Willis, 89 F.3d 1371, 1380 (8th Cir. 1996) (new trial not warranted by allegedly newly discovered statements of defendant’s companion where jury’s disbelief of defendants’ story rendered companion’s story cumulative or impeaching of prosecution’s many witnesses); U.S. u Trujillo, 136 F.3d 1388, 1394 (lOth Cir.) (new trial not warranted where new evidence that defendant’s cellmate was involved in a bank robbery would only serve to further impeach the cellmate’s testimony, but would not exculpate the defendant), cert. denied, 119 S. Ct. 158 (1998); U.S. v. Schlei, 122 F.3d 944, 993 (llth Cir. 1997) (new trial not warranted where newly discovered evidence that would have impeached government testimony would have only been cumulative of other evidence showing that the defendant did not have knowledge of some of coconspirator’s activities), cert. denied, 118 S. Ct. 1523 (1998).

2556. Compare U.S. v. Anderson, 139 F.3d 291, 296 (lst Cir.) (new trial not warranted where defendant failed to show that new evidence, that some juvenile witnesses accepted government inducements in exchange for their testimony, would “probably produce an acquittal the next time around”), cert. denied, 119 S. Ct. 158 (1998); U.S. v. Torres, 128 F.3d 38, 48 (2d Cir. 1997) (new trial not warranted

upon new evidence that witness perjured himself on stand regarding whether he had hidden money from the government where witness had also testified that if he had hidden money away, he would not admit it because the new evidence would not likely change the result), cert. denied sub nom. Rivera v. U.S., 118 S. Ct. 1399 (1998); U.S. v. Gilsenan, 949 F.2d 90, 95-96 (3d Cir. 1991) (new trial not warranted by newly discovered evidence of jury’s exposure to newspaper stories that could not have altered verdict when stories spoke of weakness of government’s case and when 24-day trial followed exposure to stories); U.S. v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995) (new trial not warranted by newly discovered evidence that witness had been intimidated into acting as informant because other evidence overwhelmingly supported conviction); U.S. v. Gresham, 118 F.3d 258, 268 (Sth Cir. 1997) (new trial not warranted by newly discovered evidence of witness’s recantation of testimony because overwhelming evidence provided by other witnesses makes different result unlikely), cert. denied, 118 S. Ct. 702 (1998); U.S. v. Donathan, 65 F.3d 537, 541 (6th Cir. 1995) (new trial not warranted by alleged inadequacies of defendant’s counsel where counsel reputable attorney and court confident overwhelming evidence caused conviction); U.S. v. Williams, 81 F.3d 1434, 1440 (7th Cir. 1996) (new trial not warranted by newly revealed evidence of special treatment of government’s witness where jury had number of reasons to convict), cert. denied, 118 S. Ct. 582 (1997); U.S. v. Ireland, 62 F.3d 227, 231 (8th Cir. 1995) (new trial not warranted by newly discovered evidence that victim owned ax handle allegedly wielded by co-defendant because impeachment on such collateral matter would probably not produce acquittal); U.S. v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995) (new trial not warranted by newly discovered letters arguably impeaching government witnesses where court unconvinced letters would have any effect on outcome); U.S. v. GutierrezHermosillo, 142 F.3d 1225, 1232 (lOth Cir.) (new trial not warranted where prosecution withheld statement from defendant’s attorney until after trial that defendant told police prior to searching van where drugs found that van was driven by another person earlier in the night, because evidence was unlikely to have changed result of trial), cert. denied, 119 S. Ct. 230 (1998); U.S. v. Pope, 132 F.3d 684, 687 (llth Cir. 1998) (new trial not warranted where newly discovered evidence of witness’s burglary conviction would not likely produce an acquittal because the conviction was 28 years old) and U.S. v. Lafayette, 983 F.2d 1102, 1106 (D.C. Cir. 1993) (new trial not warranted by new evidence that police officer who testified to small part of offense against defendant used drugs because unlikely to produce acquittal on retrial) with U.S. v. Siddiqi, 959 F.2d 1167, 1173-74 (2d Cir. 1992) (new trial warranted by newly discovered evidence corroborating defendant’s testimony when conviction apparently rested on jury’s disbelief of defendant); U.S. v. Garland, 991 F.2d 328, 335-36 (6th Cir. 1993) (new trial warranted by indictments of other people on same charges and discovery of disinterested new witnesses who would support defendant’s claim, when new trial would likely result in acquittal); U.S. v. Young, 17 F.3d 1201, 1203 (9th Cir. 1994) (new trial warranted by post-trial discovery of prosecutor’s use of officer’s false testimony, including its use in closing arguments, when new trial would probably have different outcome) and U.S. v. Lloyd, 71 F.3d 408, 412 (D.C. Cir. 1995) (new trial warranted by newly discovered tax returns of defendant’s clients where “materially exculpatory evidence” contained therein raised reasonable probability of different result on retrial).

2557. Compare U.S v. Santos, 131 F.3d 16, 21 (Ist Cir. 1997) (verdict not against the weight of the evidence when conviction for threatening to kill the President supported by defendant’s voluntary confession and proof of his sanity); U.S. v. Wilson, 118 F.3d 228, 234-37 (4th Cir. 1997) (verdict not against the weight of evidence when conviction for obstructing and impeding administration of internal revenue laws supported by evidence of defendant’s preparation of backdated notes, testimony of IRS revenue officer, and testimony of other prosecution witnesses); U.S. v. Zuniga-Salinas, 945 F.2d 1302, 1305 (Sth Cir. 1991) (verdict not against weight of evidence when conviction for possession of marijuana supported by testimony of government agents, circumstantial physical evidence, and inconsistent explanations by defendant), aff’d in part and rev’d in part on other grounds, 952 F.2d 876 (5th Cir. 1992) (en banc); U.S. v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998) (verdict not against the weight of the evidence, despite the fact that witnesses’ testimony conflicted, when conviction for making false statement was supported by government forms where defendant stated that she had face-to-face interviews with proposed borrowers and testimony by borrowers to the contrary); U.S. v. Ludwig, 897 F.2d 875, 882-83 (7th Cir. 1990) (verdict not against weight of evidence, despite claim that IRS calculations problematic, when court convinced that evidence of irregular accounting preponderated in favor of guilt); U.S. v. Turner, 157 F.3d 581, 585 (8th Cir. 1998) (verdict not against the weight of the evidence where defendant convicted of carrying a firearm during and in relation to a drug trafficking offense, despite the fact that the gun was not loaded, where a loaded clip was found inside the bag containing the firearm); U.S. v. Zuno-Arce, 44 F.3d 1420, 1422 (9th Cir. 1995) (verdict not against weight of evidence when district court properly left credibility questions regarding conflicting testimony to jury); U.S. v. Evans, 42 F.3d 586, 595 (lOth Cir. 1994) (verdict for bank fraud not against weight of evidence when loan approval forms stated false purposes for loans and when government introduced other evidence that defendant acted in bad faith) and U.S. v. Martinez, 763 F.2d 1297, 1313 (llth Cir. 1985) (verdict not against weight of evidence when conviction for cocaine possession supported by testimony of government agent and by

fact of defendant’s position as captain of boat traveling from Colombia to Miami) with U.S. v. Garcia, 907 F.2d 380, 383-84 (2d Cir. 1990) (verdict against weight of evidence in extortion case because no evidence that defendant created fear of economic harm in victim).

2558. Cf. U.S. v. Green, 89 F.3d 657, 660 (9th Cir. 1996) (no abuse of discretion to deny oral argument in reference to motion for new trial; discretion lies in district court). Compare U.S. v. Levy-Cordero, 67 F.3d 1002, 1018 (Ist Cir. 1995) (no abuse of discretion to deny evidentiary hearing on content and reliability of proposed alibi evidence where, prior to trial, defendant’s counsel had visited purportedly newly discovered witness in jail); U.S. v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995) (no abuse of discretion to deny evidentiary hearing on alleged perjury by prosecution witnesses when defendants failed to offer sufficient factual support for their allegations); U.S. v. Gilsenan, 949 F.2d 90, 96-97 (3d Cir. 1991) (no abuse of discretion to deny evidentiary hearing on alleged jury misconduct when hearing not needed to develop facts and court could not question jury on effect of exposure to news story); U.S. v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996) (en banc) (no abuse of discretion to deny evidentiary hearing on alleged juror taint where defendant not prejudiced because no reasonable possibility alleged juror contact influenced juror), cert. denied, 118 S. Ct. 81 (1997); U.S. v. Anderson, 76 F.3d 685, 692 (6th Cir. 1996) (no abuse of discretion to deny evidentiary hearing on alleged ineffective assistance of counsel; decision “entirely” within discretion of district court); U.S. v. Griffin, 84 F.3d 912, 930 (7th Cir. 1996) (no abuse of discretion to deny evidentiary hearing on alleged perjury where ample evidence at trial for trial court to assess witness’s credibility); U.S. v. William, 97 F.3d 240, 246 (8th Cir. 1996) (no abuse of discretion when trial court’s investigation of juror misconduct did not include a “full” evidentiary hearing whereby jurors could be sworn and cross-examined); Ortiz v. Stewart, 149 F.3d 923, 930 (9th Cir. 1998) (no abuse of discretion by denying evidentiary hearing to investigate alleged ineffective assistance of counsel); U.S. v. Custodio, 141 F.3d 965, 966 (lOth Cir.) (no abuse of discretion to deny evidentiary hearing where defendant’s motion for new trial was untimely), cert. denied, 119 S. Ct. 243 (1998); U.S. v. QuilcaCarpio, 118 F.3d 719, 722 (llth Cir. 1997) (no abuse of discretion in denying an evidentiary hearing on whether juror answered dishonestly in voir dire because court reviewed jurors responses and concluded claim was only speculative), cert. denied, 118 S. Ct. 1087 (1998) and U.S. v. White, 116 F.3d 903, 928-30 (D.C. Cir. 1997) (per curiam) (trial court not required to conduct evidentiary hearing on juror prejudice resulting from contact with a witness, prejudicial statements during deliberations, and dishonesty during voir dire, because the trial court’s conclusion that no prejudice occurred was well supported), cert. denied, 118 S. Ct. 390 (1997) with U.S. v. Abou-Saada, 785 F.2d 1, 5-6 (Ist Cir. 1986) (court abused discretion by denying evidentiary hearing to investigate alleged offer of immunity to defendant when witness’s proffered testimony available shortly after trial, claim not incredible, government failed to contest charge, and court would dismiss indictment or fashion other relief if allegation true); U.S. v. Hall, 85 F.3d 367, 369 (8th Cir. 1996) (court abused discretion by granting new trial motion without evidentiary hearing on basis of one affidavit stating juror overheard bench conference and felt defendant involved in more than offense charged), cert. denied, 118 S. Ct. 1106 (1998); U.S. v. Navarro-Garcia, 926 F.2d 818, 822-23 (9th Cir. 1991) (court abused discretion by denying evidentiary hearing on jury misconduct when attorney’s affidavit claiming misconduct not clearly false); U.S. v. Fernandez, 136 F.3d 1434, 1439 (llth Cir. 1998) (trial court abused discretion by denying evidentiary hearing on whether newly discovered evidence required new trial) and U.S. v. Boney, 977 F.2d 624, 633-34 (D.C. Cir. 1992) (court abused discretion by denying evidentiary hearing on juror’s failure to disclose convicted-felon status). 2559. Compare U.S. v. Paiaqua-Ramos, 135 F.3d 193, 199 (Ist Cir. 1998) (trial judge entitled to great deference because he had opportunity at trial to observe the evidence, the witnesses and the jury at the trial); U.S. v. Petrillo, 821 F.2d 85, 88 (2d Cir. 1987) (trial judge entitled to great deference because better able to determine effect of defendant’s subsequent showing that government witness lied about knowledge of IRS investigation); U.S. v. O’Keefe, 128 F.3d 885, 893 (Sth Cir. 1997) (trial judge entitled to great deference because he, unlike the appeals court, saw the impact of the witnesses on the jury and observed the demeanor of the witnesses themselves), cert. denied, 118 S. Ct. 1525 (1998); U.S. v. Breinig, 70 F.3d 850, 852 (6th Cir. 1995) (trial judge in better position to judge errors than appeals court “reading a cold record”); U.S. v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998) (trial judge in a better position to rule on the motion for new trial because he heard the witnesses and lawyers first-hand and watched the jurors’ response to the witnesses and lawyers); and U.S. v. Worley, 88 F.3d 644, 646 (8th Cir. 1996) (trial judge in best position to determine impact of evidence on jury) with U.S. v. Perdomo, 929 F.2d 967, 969-70 (3d Cir. 1991) (appellate court reviewing motion for new trial based upon Brady due process claim and newly discovered evidence owed no deference to trial court’s conclusions of law, unlike conclusions of fact) and U.S. v. Van Kirk, 935 F.2d 932, 934-35 (8th Cir. 1991) (appellate court reviewing motion for new trial based upon failure to instruct jury properly owed no deference to trial court’s conclusions of law, unlike conclusions of fact).

2560. See U.S. v. Ruiz, IOS F.3d 1492, 1501 (Ist Cir. 1997) (reversing ruling on motion for new trial based on abuse of discretion standard); U.S. v. Burns, 104 F.3d 529, 536-37 (2d Cir. 1997) (same); U.S. v. Gilsenan, 949 F.2d 90, 95-96 (3d Cir. 1991) (same); U.S. v. Dorlouis, 107 E3d 248, 254 (4th Cir. 1996) (same), cert. denied, 117 S. Ct. 2525 (1997); U.S. v. Robertson, 110 F.3d 1113, 1116 (5th Cir. 1997) (same); U.S. v. Rapanos, 115 F.3d 367, 372 (6th Cir.) (same), cert. denied, 118 S. Ct. 304 (1997); U.S. v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997) (same), cert. denied, 118 S. Ct. 1844 (1998); U.S. v. Warren, 140 F.3d 742, 744 (8th Cir. 1998) (same); U.S. v. Henson, 123 F.3d 1226, 1239 (9th Cir. 1997) (same); U.S. v. Rodriguez-Aguirre, 108 F.3d 1228, 1239 (lOth Cir.) (same), cert. denied, 118 S. Ct. 132 (1997); U.S. v. Arnold, 117 F.3d 1308, 1317 (llth Cir. 1997) (same); U.S. v. Williams, 113 F.3d 243, 247 (D.C. Cir. 1997) (same); see also U.S. v. Anderson, 139 F.3d 291, 295 (Ist Cir. 1998) (affirming ruling on motion for new trial based on abuse of discretion standard); U.S. v. Robertson, 110 F.3d 1113, 1118 (Sth Cir. 1997) (same); U.S. v. Wilkins, 139 F.3d 603, 604 (8th Cir. 1998); U.S. v. Trujillo, 136 F.3d 1388, 1394 (lOth Cir. 1998).

2561. DiBella v. U.S., 369 U.S. 121, 126 (1962).

2562. 28 U.S.C. 1291 (1994); see In re Kirby, 106 F.3d 855, 859-60 (9th Cir. 1996) (district court’s bail order in extradition case is a final, appealable order pursuant to 18 U.S.C. 3145 (1994)); cf. U.S. v. Ibarra, 502 U.S. 1, 4-6 (1991) (per curiam) (government’s motion to reconsider suppression order rendered decision nonfinal and tolled period to file notice of appeal); U.S. v. Cooper, 135 F.3d 960, 962-63 (5th Cir. 1998) (filing of appeal after announcement of decision but before entry of judgment premature because decision was not final); U.S. v. Carr, 18 F.3d 738, 741 (9th Cir. 1994) (denial of motion for acquittal not final, appealable decision even after hung jury mistrial). A decision of a U.S. magistrate is not a final decision of a district court within the meaning of 1291. See In re Mackin, 668 F.2d 122, 129 (2d Cir. 1981) (magistrate’s decision to deny extradition not appealable under 1291 because not final decision of district court); U.S. v. Fuller, IS F.3d 646, 649 n.2 (7th Cir. 1994) (magistrate’s decision not to move for competency hearing not appealable under 1291 because decision only becomes final when adopted by district court). The circuits disagree on whether appellate jurisdiction may be conferred over an appeal of one count where other counts remain unresolved. Compare U.S. v. Kaufmann, 951 F.2d 793, 795 (7th Cir. 1992) (when jury hung on two counts, appellate court lacked jurisdiction over appeal from judgment on closely related third count; mistrial on two counts rendered judgment on third count nonfinal) with U.S. v. Abrams, 137 F.3d 704, 707 (2d Cir.) (asserting appellate jurisdiction over appeal of conviction on three counts of filing false tax returns where ten related counts remained outstanding because of mistrial), cert. denied, 119 S. Ct. 63 (1998).

A final decision is not appealable if the issue has been rendered moot. See U.S. v. Miller, 14 F.3d 761, 764 (2d Cir. 1994) (defendant’s appeal of district court denial of injunctive relief rendered moot when tapes of intercepted conversations played at trial); U.S. v. Hunt, 940 F.2d 130, 131 (Sth Cir. 1991) (defendant’s appeal of district court restitution plan rendered moot when district court later vacated restitution sentence); Battle v. Anderson, 708 F.2d 1523, 1527 (lOth Cir. 1983) (per curiam) (government appeal of district court order rendered moot when district court later vacated order). The fact that an appellant is serving a concurrent sentence on an affirmed or unchallenged conviction does not render the appeal moot. See Benton v. Maryland, 395 U.S. 784, 790-91 (1969) (although concurrent sentences imposed, “adverse collateral effects of criminal convictions” sufficient for jurisdiction); cf U.S. v. Kassar, 47 F.3d 562, 565 (2d Cir. 1995) (defendant’s challenge to upward departure in sentencing not moot although defendant completed sentence because criminal history category would be affected if defendant convicted again).

2563. See Parr v. U.S., 351 U.S. 513, 518 (1956) (no appeal allowed from order dismissing indictment because no final judgment in criminal case until sentencing). The degree to which the general rule that a court must impose a sentence before a party may appeal varies considerably on the factual setting. Compare U.S. v. Luciano-Mosquera, 63 F.3d 1142, 1148 (lst Cir. 1995) (no appeal allowed from criminal judgment involving multiple counts because record not final and appealable unless it discloses sentence for each count); U.S. u Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (no appeal allowed from denial of motion for new sentence because motion filed after prior sentence vacated but before new sentence im

posed), cert. denied, 117 S. Ct. 1472 (1997); U.S. v. Baxter, 19 F,3d 155, 156 (4th Cir. 1994) (per curiam) (no appeal allowed from district court order remanding case to magistrate for resentencing because magistrate given discretion to determine sentence); U.S. v. Kaufmann, 951 F.2d 793, 794-95 (7th Cir. 1992) (no appeal allowed from judgment as to counts that resulted in hung jury and mistrial because final judgment in criminal case occurs at sentencing); U.S. v. Thompson, 814 F.2d 1472, 1474 (lOth Cir. 1987) (no appeal allowed after court vacated plea bargain agreement because defendant neither convicted nor sentenced) and U.S. v. Tovar-Rico, 61 F.3d 1529, 1536 (1I th Cir. 1995) (no appeal allowed from sealed jury verdict because no final judgment or sentencing order in district court) with U.S. v. Abou-Kassem, 78 F.3d 161 (5th Cir. 1996) (district court’s imposition of provisional sentence while final sentence pending appealable because otherwise defendant would lack meaningful opportunity to challenge the validity of conviction) and Guam v. Borja, 983 F.2d 914, 916 (9th Cir. 1992) (appellate court’s remand for new trial appealable as final order because government cannot appeal from acquittal that may follow new trial). A premature notice of appeal filed after a jury verdict but before imposition of sentence and formal entry of judgment is effective to perfect an appeal when the sentence is officially entered. U.S. v. Cronan, 937 F.2d 163, 164 (Sth Cir. 1991); see U.S. v. Cottman, 142 F.3d 160, 164 (3d Cir. 1998) (appeal filed one day before entry of final sentence ripened into proper appeal of final judgment where district court docket revealed no events intervening between notice and entry of final judgment); U.S. v. Walker, 915 F.2d 1463, 1465 (lOth Cir. 1990) (premature notice of appeal filed before sentencing but after guilty verdict ripened when judgment finalized even if notice did not specify issues to be raised on appeal). The right to appeal may be denied if the defendant is a fugitive during the “ongoing appellate process.” Estelle v. Dorrough, 420 U.S. 534, 542 (1975); see U.S. v. Corporan-Cuevas, 35 F.3d 953, 957 (4th Cir. 1994) (defendant’s appeal dismissed when defendant remained fugitive during appellate process). Nonetheless, if the defendant flees and returns to custody before the appellate process begins, denial is not automatic. Ortega-Rodriguez v. U.S., 507 U.S. 234, 244 (1993). Compare U.S. v. Sudthisa-Ard, 17 F.3d 1205, 1206-07 (9th Cir. 1994) (defendant’s appeal dismissed when defendant’s fugitive status for 13 years prejudiced government’s ability to retry case in event of reversal) and U.S. v. Rosales, 13 E3d 1461, 1462-63 (llth Cir.1994) (defendant’s appeal dismissed when defendant had become fugitive during trial and remained fugitive for one year because allowing appeal would unduly burden government and significantly interfere with judicial process) with Daccarett-Ghia v. Commissioner, 70 F.3d 621, 629 (D.C. Cir. 1996) (defendant’s fugitive status during tax court proceedings did not have sufficient institutional effect to allow district court to dismiss appeal under Fugitive Disentitlement Doctrine). 2564. Compare U.S. v. Cronic, 466 U.S. 648, 667 n.42 (1984) (district court has jurisdiction to deny motion for new trial or to certify intention to grant new trial motion to court of appeals while case on appeal); U.S. v. Hurley, 63 F.3d 1, 23 (Ist Cir. 1995) (district court retained jurisdiction over asset forfeiture even though defendant filed appeal because matter not inconsistent with pendency of appeal); U.S. v. Nichols, 56 F.3d 403, 410-11 (2d Cir. 1995) (district court retained jurisdiction to make supplemental finding to clarify ruling on defendant’s competency even though defendant filed appeal because district court aided appeal); U.S. v. Greenwood, 974 F.2d 1449, 1467-68 (Sth Cir. 1992) (district court retained jurisdiction over government motion for reconsideration even though defendant filed appeal); U.S. v. Warner, 10 F.3d 1236, 1239 (6th Cir. 1993) (district court retained jurisdiction to deny motion for new trial while case on appeal); U.S. v. McGee, 981 F.2d 271, 272-73 (7th Cir. 1992) (district court retained jurisdiction to correct clerical errors even after appeal filed); U.S. v. Reeves, 83 F.3d 203, 208 (8th Cir. 1996) (district court retained jurisdiction to rule on defendant’s request to join codefendant’s motion for new trial or joinder while appeal pending); U.S. v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (district court retained jurisdiction to try remaining count while defendant’s appeal of unrelated severed offenses pending); U.S. v. Meyers, 95 F.3d 1475, 1488 (lOth Cir. 1996) (district court retained jurisdiction to make initial determination of whether convicted defendant should be released pending appeal notwithstanding defendant’s filed notice of appeal), cert. denied, 118 S. Ct. 583 (1997) and U.S. v. Farmer, 923 F.2d 1557, 1565 (llth Cir. 1991) (district court retained jurisdiction to deny motion for new trial while case on appeal) with U.S. v. Brooks, 145 F.3d 446, 454 (lst Cir. 1998) (district court divested of jurisdiction to go forward with trial where government filed timely notice of appeal, prior to start of proceedings, of court’s exclusion of certain key evidence); U.S. v. Ransom, 866 F.2d 574, 575-76 (2d Cir. 1989) (per curiam) (district court divested of jurisdiction to amend or reconsider judgment by filing of timely and effective notice of appeal from final judgment, but court may correct clerical errors or otherwise act to aid appeal); U.S. v. Christy, 3 F.3d 765, 768 (4th Cir. 1993) (district court divested of jurisdiction over defendant’s motion for reconsideration when defendant filed simultaneous appeal, but circuit court may hold notice of appeal in abeyance pending district court advisory opinion on motion); U.S. v. Ienco, 126 F.3d 1016, 1018 (7th Cir. 1998) (district court divested of jurisdiction to rule on remainder of motion to suppress evidence where government already appealed part of motion already ruled upon and there was almost complete overlap between appealed and retained issues); U.S. v. Sprague, 135 F3d 1301, 1307 (9th Cir. 1998) (district court lacked jurisdiction to consider defendant’s motion for reconsideration of motion to reduce sentence where defendant had previously filed notice of

appeal of conviction); U.S. v. Mavrokordatos, 933 F.2d 843, 846 (lOth Cir. 1991) (district court divested of jurisdiction by filing of timely notice of appeal on appealable issues such as suppression of evidence) and U.S. v. Tovar-Rico, 61 F.3d 1529, 1532 (llth Cir. 1995) (district court divested of jurisdiction by government’s timely filing of notice of appeal of order granting motion to suppress evidence). The pendency of a new trial motion does not affect the ability of an appellate court to hear the appeal. U.S. v. Cortes, 895 F.2d 1245, 1247 (9th Cir. 1990); cf U.S. v. Salameh, 84 F.3d 47, 50 (2d Cir. 1996) (court of appeals could restore jurisdiction over remanded case in granting defendant’s motion to recall mandate and reinstate appeal because conditions previously specified for restoring appellate jurisdiction not exclusive); U.S. v. Varah, 952 F.2d 1181, 1182-83 (lOth Cir. 1991) (per curiam) (court of appeals holds notice of appeal in abeyance pending district court disposition of post-trial motions). 2565. 337 U.S. 541 (1949). 2566. Id. at 546.

2567. Id.; accord Abney v. U.S., 431 U.S. 651, 659-63 (1977). Compare U.S. v. Doe, 49 F.3d 859, 865 (2d Cir. 1995) (order permitting government to proceed against juvenile as adult immediately appealable because issue separate and distinct from guilt); U.S. v. Smith, 851 F.2d 706, 707-08 (4th Cir. 1988) (order denying motion to dismiss murder indictment against 21-year-old defendant for crime committed as juvenile immediately appealable because issue of whether defendant could be tried as juvenile separate and distinct from determination of guilt, and right to be tried as juvenile and accompanying statutory rights would be irrevocably lost); Sherwinski v. Peterson, 98 F.3d 849, 851 (Sth Cir. 1996) (order denying motion to dismiss prisoner’s suit on Eleventh Amendment immunity grounds immediately appealable because value of Eleventh Amendment immunity lost after motion practice); U.S. v. One Juvenile Male, 40 F.3d 841, 843 (6th Cir. 1994) (order granting motion to transfer juvenile as adult immediately appealable because legal and practical value of right to be tried as juvenile would be destroyed); U.S. v. J.J.K., 76 F.3d 870, 872 (7th Cir. 1996) (order permitting government to proceed against juvenile as adult immediately appealable because right to be tried as juvenile would be irretrievably lost making order effectively unreviewable); U.S. v. Doe, 94 F.3d 532, 535 (9th Cir. 1996) (order denying transfer of juvenile for adult prosecution immediately appealable because Double Jeopardy Clause would bar government from retrying juvenile as adult, so issue cannot be fully vindicated on appeal from final order); U.S. v. Boigegrain, 122 F.3d 1345, 1349 (lOth Cir. 1998) (court had jurisdiction to hear appeal of order for four-month commitment of defendant for purposes of psychiatric evaluation, because there can be no remedy for loss of liberty) and U.S. v. Durenberger, 48 F.3d 1239, 1242 (D.C. Cir. 1995) (order denying defendant’s claim of immunity immediately appealable because freedom from enduring criminal trial cannot be fully vindicated on appeal from final order) with Swint v. Chambers County Comm’n, 514 U.S. 35, 42 (1995) (order denying summary judgment rendered ruling tentative, inconclusive and not immediately appealable because of district court’s intention to revisit order); U.S. v. Ramirez-Burgos, 44 F.3d 17, 19 (Ist Cir. 1995) (order denying defendant’s motion to dismiss not immediately appealable because claim could be fully vindicated on appeal from final judgment); U.S. v. Santtini, 963 F.2d 585, 591-93 (3d Cir. 1992) (order suspending valid arrest warrant to enable fugitive to give crucial testimony in criminal proceeding not immediately appealable because order not completely separate from merits of case); U.S. v. Miller, 952 F.2d 866, 874 (Sth Cir. 1992) (order denying motion to dismiss indictment not immediately appealable because motion merely attack on sufficiency of indictment, and claim not separate from merits); U.S. v. Stone, 53 F.3d 141, 143-44 (6th Cir. 1995) (order regarding attorney fee determination under Criminal Justice Act not immediately appealable because doctrine does not apply to such administrative determinations); U.S. v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994) (order denying motion to dismiss indictment not immediately appealable when motion based on ground that indictment tainted by immunized testimony because claim could be fully vindicated on appeal from final judgment); U.S. v. Hitchcock, 992 F.2d 236, 238 (9th Cir. 1993) (per curiam) (order refusing to seal financial documents submitted to show financial need for appointed counsel not immediately appealable because claim not completely separate from merits of action and, therefore, can be raised if defendant convicted) and Fraser v. U.S., 834 F.2d 911, 912-15 (Ilth Cir. 1987) (order denying motion to vacate order directing

defendant to serve Attorney General with copy of pleading filed in Switzerland in opposition to grand jury’s request for release of Swiss bank records not immediately appealable because order and records directly tied to grand jury’s investigation, not separate from merits, and appeal available after criminal prosecution).

A public official’s motion for summary judgment on qualified immunity grounds is appealable under the collateral order doctrine as the value of the protection that qualified immunity provides against standing trial is essentially irretrievable upon review after the trial’s completion. However, for the collateral order doctrine to be triggered in qualified immunity claims, the summary judgment ruling must be grounded on abstract issues of law and not evidentiary sufficiency. For the summary judgment ruling to be immediately appealable, it must present an issue as to whether or not on the given set of facts the defendants violated clearly established law. On the other hand, the collateral order doctrine will not permit an immediate appeal where the summary judgment ruling addressed whether or not there were genuine issues of fact for trial. Compare Johnson v. Jones, 515 U.S. 304, 317 (1995) (order denying police officers’ motion for summary judgment based on qualified immunity claim not immediately appealable where district court had determined existence of general issue of material fact for trial); Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996) (same) and Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995) (same) with Tangwall v. Stuckey, 135 F.3d 510, 515 (7th Cir. 1998) (order denying detective’s summary judgment motion on qualified immunity grounds immediately appealable where relevant factual issues not in dispute and inquiry was question of law); Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (order denying police officers’ qualified immunity claim immediately appealable where facts undisputed and question was purely legal inquiry); and Clanton v. Cooper, 129 F.3d 1147, 1153 (lOth Cir. 1997) (order denying summary judgment on basis of defendant’s assertion of qualified immunity immediately appealable where inquiry was purely question of law).

In cases where the government is relying on the collateral order doctrine in appealing a court’s order, the government must also show that such an appeal is authorized by the Criminal Appeals Act in 18 U.S.C. 3731 (1994). See U.S. v. McVeigh, 106 F.3d 325, 329 (lOth Cir. 1997) (per curiam) (although district court’s sequestration order was effectively unreviewable after trial, government could not appeal order when Criminal Appeals Act not construed as authorizing government appeals of witness sequestration orders).

2568. Abney, 431 U.S. at 658-59 (denial of motion to dismiss indictment on double jeopardy grounds immediately appealable because collateral issue and delay irreparably harms defendant’s right not to be tried for same offense); see U.S. v. Rice, 109 F.3d 151, 151 (3d Cir. 1997) (servicewoman who previously had been discharged from Army on drug-related offenses could immediately appeal denial of motion to dismiss subsequent, separate indictment on drug-related charges because of double jeopardy claim); U.S. v. Green, 139 F.3d 1002, 1003 (4th Cir. 1998) (denial of defendant’s motion to dismiss reindictment filed after court vacated earlier conviction based on guilty plea immediately appealable on basis of double jeopardy claim); cf Witte v. U.S., 515 U.S. 389, 398 (1995) (denial of motion to dismiss indictment on double jeopardy grounds immediately appealable even where defendant not yet convicted a second time). However, the court will not accept immediate appeal of a double jeopardy claim under the collateral order doctrine if the claim is not colorable. See U.S. v. McAleer, 138 F.3d 852, 857 (lOth Cir.) (double jeopardy claim did not fall under collateral order doctrine where claim identical to another previously rejected by the court), cert. denied, 119 S. Ct. 133 (1998). The appeal of double jeopardy claims is discussed in greater detail in DOUBLE JEOPARDY in Part II. See also Dismissal of Indictments in INDICTMENTS in Part II. 2569. Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (Speech and Debate Clause protects members of Congress from conviction and necessity of standing trial and right created by Clause would be lost if immediate appeal unavailable); U.S. v. Rostenkowski, 59 F.3d 1291, 1297 (D.C. Cir. 1995) (order denying congressman’s motion to dismiss indictment based on Speech and Debate Clause immediately appealable under collateral order doctrine). Absolute immunity also extends to state and regional legislators. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732 (1980). See Dismissal of Indictments in INDICTMENTS in Part II.

2570. Stack v. Boyle, 342 U.S. 1, 6 (1951) (order denying motion to reduce bail immediately appealable because relief must be speedy to be effective); see U.S. v. Gigante, 85 F.3d 83, 85 (2d Cir. 1996) (per curiam) (order imposing bail condition requiring forfeiture of $1 million bail bond if defendant committed a crime while on release immediately appealable because order final, collateral to issue of guilt, and involved risk of unreviewable damage to constitutional right); U.S. v. Smith, 835 F.2d

1048, 1049-50 (3d Cir. 1987) (order denying bail pending disposition of habeas corpus petition immediately appealable because order severable from merits, conclusively determined disputed question, and effectively unreviewable on appeal from final judgment); U.S. v. Spilotro, 786 F.2d 808, 812-13 (8th Cir. 1986) (order denying motion to reduce bail after pretrial release immediately appealable because order final, collateral to issue of guilt, and involved risk of irreparable damage to constitutional rights); U.S. v. Loya, 23 F.3d 1529, 1530 (9th Cir. 1994) (order denying bail pending hearing on revocation of supervised release immediately appealable); cf. U.S. v. Gundersen, 978 F.2d 580, 582-83 (lOth Cir. 1992) (order denying subsistence during trial while defendant out of custody immediately appealable as if modification of bail).

2571. U.S. v. MacDonald, 435 U.S. 850, 858-61 (1978) (denial of motion to dismiss based on constitutional right to speedy trial not immediately appealable because issue not collateral, determination by court not final, and right to appeal not irrevocably lost if review delayed). Similarly, defendants may not immediately appeal denials of pretrial motions alleging violations of the Speedy Trial Act, 18 U.S.C.

3161-3174 (1994). See U.S. v. Buchanan, 946 F.2d 325, 327 (4th Cir. 1991) (order denying motion to dismiss indictment claiming violation of Speedy Trial Act not immediately appealable because order not unreviewable); U.S. v. Jackson, 30 F.3d 572, 574 (5th Cir. 1994) (same); U.S. v. Holub, 944 F.2d 441, 442 (8th Cir. 1991) (same); U.S. v. Tsosie, 966 F.2d 1357, 1359-62 (lOth Cir. 1992) (same); cf. U.S. v. Ford, 961 F.2d 150, 151 (9th Cir. 1992) (per curiam) (district court dismissal of indictment without prejudice for violation of speedy trial provision of Interstate Agreement on Detainers Act not immediately appealable because order not unreviewable).

Nonetheless, defendants may pursue interlocutory appeals of denied motions for release from pretrial detention pursuant to the Speedy Trial Act, 18 U.S.C. 3161-3174 (1994). See U.S. v. Gates, 935 F.2d 187, 188 (llth Cir. 1991) (per curiam) (distinguishing pretrial detention, which may be appealed immediately, from dismissal, which may not be appealed prior to final judgment). 2572. U.S. v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982) (per curiam) (claim of prosecutorial vindictiveness not immediately appealable because claims reviewable on appeal after judgment); U.S. v. McKinley, 38 F.3d 428, 431 (9th Cir. 1994) (same). But cf. U.S. v. P.H.E., Inc., 965 F.2d 848, 853-56 (lOth Cir. 1992) (order denying claim of bad-faith prosecution immediately appealable because repeated prosecutions clearly aimed at chilling First Amendment rights, and right not to be tried lost if order not immediately appealed).

2573. Midland Asphalt Corp. v. U.S., 489 U.S. 794, 799-800 (1989) (order denying motion to dismiss indictment for alleged violation of FED. R. CRIM. P. 6(e) not subject to appellate review until after conviction and sentencing). Review of grand jury procedural violations is addressed in greater detail in Appeal of Grand Jury Orders in GRAND JURY in Part II.

2574. DiBella v. U.S., 369 U.S. 121, 131 (1962) (preindictment orders granting or denying suppression of evidence procured through unlawful search and seizure not immediately appealable); Carroll v. U.S., 354 U.S. 394, 404-OS (1957) (same for postindictment order). Nonetheless, orders that affect substantial privacy rights may be immediately appealable. Compare U.S. v. Gerena, 869 F.2d 82, 83 (2d Cir. 1989) (order permitting government to use previously sealed, intercepted conversations in publicly filed briefs and memoranda immediately appealable because order conclusively rejected defendants’ claim of statutorily guaranteed privacy rights, resolved important issue completely separate from merits of case, and effectively unreviewable) and In re Search Warrant (Sealed), 810 F.2d 67, 70 (3d Cir. 1987) (order denying motion to return medical records immediately appealable, although suppression of evidence was motive, because right to privacy implicated) with U.S. v. Miller, 14 F.3d 761, 765 (2d Cir. 1994) (order denying motion for temporary restraining order prohibiting release of intercepted conversations not immediately appealable because wiretap evidence adjudicated in appellants’ own trials and reviewable on appeal from final judgment).

2575. See Flanagan v. U.S., 465 U.S. 259, 268 (1984) (pretrial disqualification of defense counsel not immediately appealable because order not independent of issues to be tried); cf. U.S. v. Celani, 748 F.2d 363, 365-67 (7th Cir. 1984) (denial of motion for court-appointed counsel not immediately appealable because court could reconsider and appoint counsel at any point during trial and order reviewable on appeal).

2576. See U.S. v. Sorren, 605 F.2d 1211, 1213-14 (lst Cir. 1979) (order denying motion to dismiss for lack of personal jurisdiction not immediately appealable because requirement of personal jurisdiction protects defendant from judgment, not trial, and right adequately protected on appeal from final judgment); U.S. v. Weiss, 7 F.3d 1088, 1089-90 (2d Cir. 1993) (order denying motion to dismiss based on

statute of limitations not immediately appealable because order reviewable on appeal from final judgment and no double jeopardy issue at stake); U.S. v. Davis, 873 F.2d 900, 908-09 (6th Cir. 1989) (same); In re 1985 Grand Jury Proceedings, 785 F.2d 593, 594-95 (8th Cir. 1985) (order denying access to grand jury records not immediately appealable because later review possible); U.S. v. Saccoccia, 18 F.3d 795, 800-01 (9th Cir. 1994) (order denying motion to dismiss based on challenge to district court jurisdiction not immediately appealable because challenge can be fully vindicated on postjudgment appeal); Wyatt v. Rogers, 92 E3d 1074, 1081 (11 th Cir. 1996) (order denying defendant’s motion to decertify plaintiff class in class action suit not immediately appealable as final order); but cf Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997) (order holding defendant’s habeas petition in abeyance pending exhaustion of state court remedies immediately appealable by government because order effectively unreviewable on appeal from final judgment).

The Second and D.C. Circuits differ on whether preliminary committal orders satisfy the Cohen criteria. Compare U.S. v Barth, 28 F.3d 253, 255 (2d Cir. 1994) (order committing defendant found guilty, but not yet sentenced, for preliminary psychiatric evaluation not immediately appealable because matter promptly returned to district court for ultimate determination) with U.S. v. Weissberger, 951 F.2d 392, 396 (D.C. Cir. 1991) (“first step” commitment order immediately appealable because order conclusively determines that there is issue to defendant’s competency, order is completely independent of issue of defendant’s guilt on underlying felony, and defendant’s loss of liberty would effectively be unreviewable by time of final judgment).

2577. See U.S. v. Symms, 960 F.2d 847, 849 (9th Cir. 1992) (denial of motion to disqualify U.S. Attorney not immediately appealable because order fully reviewable on appeal from final judgment). 2578. See U.S. v. Gregory, 656 F.2d 1132, 1136 (Sth Cir. 1981) (denial of motion to disqualify trial judge not immediately appealable because fully reviewable on appeal from final judgment); Wyatt v. Rogers, 92 F.3d 1074, 1080 (llth Cir. 1996) (denial of motion to disqualify trial judge not immediately appealable under 28 U.S.C. 1291 (1994)).

2579. See U.S. v. Bird, 709 F.2d 388, 392 (Sth Cir. 1983) (denial of motion to dismiss based on agreement with prosecutor not immediately appealable because promise of immunity not lost when defendant forced to stand trial); John Doe Corp. v. U.S., 714 F.2d 604, 605-07 (6th Cir. 1983) (denial of request for injunctive relief to enforce plea bargain and to prevent return of grand jury indictment not immediately appealable because not final judgment); U.S. v. Ledon, 49 F.3d 457, 459-60 (8th Cir. 1995) (denial of motion to dismiss for breach of plea agreement not immediately appealable because not final judgment); U.S. v. Thompson, 814 F.2d 1472, 1475 (lOth Cir. 1987) (vacation of plea bargain not immediately appealable because defendant had opportunity for review if convicted); U.S. v. Crosby, 20 F.3d 480, 487 (D.C. Cir. 1994) (denial of motion to dismiss based on claimed violation of prior plea agreements not immediately appealable because not final judgment).

2580. Compare Virgin Islands v. Edwards, 903 F.2d 267, 272-73 (3d Cir. 1990) (appellate court had jurisdiction to hear appeal from denial of motion for return of jewelry confiscated upon arrest of burglary suspect because motion made solely for return of property, burglary trial over, and jewelry not identified by burglary victims); Frisby v. U.S., 79 F.3d 29, 30 n. l (6th Cir. 1996) (appellate court had jurisdiction to hear appeal from denial of taxpayer’s motion for return of property where there was only pending criminal tax investigation and no outstanding indictment or information); U.S. v. Martinson, 809 F.2d 1364, 1367-69 (9th Cir. 1987) (appellate court had jurisdiction to hear appeal from denial of motion for return of property although government had destroyed property while appeal pending, because no criminal proceeding pending against movant) and In re Search of Kitty’s East, 905 F.2d 1367, 1370 (lOth Cir. 1990) (appellate court had jurisdiction to hear appeal from denial of motion for return of seized property because motion not related to criminal prosecution when case involved no arrest, indictment, or information) with Church of St. Matthew v. U.S., 845 F.2d 418, 419 (2d Cir. 1988) (per curiam) (denial of motion for return of property not immediately appealable, although no criminal charges pending, because movant subject of grand jury inquiry, and for Rule 41(e) claims, criminal prosecution includes grand jury proceedings); In re Grand Jury Proceedings (Uresti), 724 F.2d 1157, 1159-60 (Sth Cir. 1984) (denial of motion for return of property not immediately appealable because purpose of motion to exclude evidence from review by government and grand jury); In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241, 1243-45 (6th Cir. 1992) (denial of motion for return of property not immediately appealable because purpose of motion to suppress evidence and not simply to have access to records for business purposes); In re 949 Erie St., 824 F.2d 538, 541 (7th Cir. 1987) (denial of motion for return of property not immediately appealable, although no criminal charges pending, because motive for motion not simply return of property as evidenced by government’s offer to return copies of seized documents); U.S. v. Mid-States Exch., 815 F.2d 1227, 1228 (8th Cir. 1987) (per curiam) (denial of motion for return of property not

immediately appealable, although no criminal prosecution pending at time of motion, because defendant subsequently indicted) and In re Grand Jury Proceedings (Berry), 730 F.2d 716, 717-18 (llth Cir. 1984) (per curiam) (denial of motion for return of property not immediately appealable, although no formal charges pending, because movant subject of criminal investigation).

2581. The Supreme Court has held that a document intended to serve as an appellate brief may qualify as the notice of appeal required by FED. R. APP. P 3 so long as it meets all the content requirements of Rule 3; if it does, it will be treated as the “functional equivalent” of the formal notice required by Rule 3. Smith v. Barry, 502 U.S. 244, 246 (1992); see FED. R. Are. P. 3(c) (“appeal shall not be dismissed for informality of form or title of the notice of appeal”); Barrett v. U.S., 105 F.3d 793, 794 (2d Cir. 1996) (per curiam) (appeal properly before court when appellant’s motion for clarification and accompanying affidavit letter functional equivalents of notice of appeal because affidavit letter expressly requested appeal and evidenced requisite intent to appeal); Brown v. French, 147 F.3d 307, 310 (4th Cir.) (appeal properly before court where language in notice clearly indicated intent to appeal all parts of order, even where all parts not explicitly listed), cert. denied, 119 S. Ct. 559 (1998); Trust Co. v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir. 1997) (appeal of orders properly before court, despite lack of specific designation in notice of appeal, because notice of appeal of district court’s final order sufficiently intertwined with prior orders); Nichols v. U.S., 75 F.3d 1137, 1140 (7th Cir. 1996) (appeal properly before court, despite failure to designate appealed order, because defendant’s timely request to proceed in forma pauperis contained required information and gave sufficient notice to government); Anderson v. District of Columbia, 72 F.3d 166, 168 (D.C. Cir. 1995) (per curiam) (appeal properly before court, despite incorrect designation in notice of appeal of U.S. Supreme Court as appellate tribunal, because intention to appeal to D.C. Court of Appeals could be inferred from notice and designation of U.S. Supreme Court had not materially misled appellee).

2582. FED. R. APP. P. 4(b); see Berman v. U.S., 378 U.S. 530, 530-31 (1964) (per curiam) (appellate court lacked jurisdiction to hear appeal because notice of appeal filed one day late); U.S. v. Angiulo, 57 F.3d 38, 40 (Ist Cir. 1995) (appellate court lacked jurisdiction to hear appeal because defendants took no action within 10-day period); U.S. v. Ferraro, 992 F.2d 10, 11 (2d Cir. 1993) (per curiam) (appellate court lacked jurisdiction to hear appeal when motion filed after ten days elapsed and no timely motion to file late); U.S. v. Kress, 944 F.2d 155, 161-62 (3d Cir. 1991) (appellate court lacked jurisdiction to hear appeal because defendant failed to file timely notice of appeal); U.S v. Presley, 52 F.3d 64, 70 (4th Cir. 1995) (same); U.S. v. Warner, 10 F.3d 1236, 1240 (6th Cir. 1993) (appellate court lacked jurisdiction to review denial of new trial motion because defendant filed motion after filing notice of appeal and failed to file separate notice of appeal from denial of new trial motion); U.S. v. Dumas, 94 F.3d 286, 289 (7th Cir. 1996) (appellate court lacked jurisdiction to hear appeal because defendant took no action within 10-day period), cert. denied sub nom. Dexter v. U.S., 117 S. Ct. 1109 (1997); U.S. v. Carter, 990 F.2d 402, 403 (8th Cir. 1993) (per curiam) (appellate court lacked jurisdiction to hear appeal filed 92 days after judgment even though district court wrote “leave granted” on notice of appeal); U.S. v. Green, 89 F.3d 657, 660 (9th Cir. 1996) (appellate court lacked jurisdiction to hear appeal because defendant failed to file timely notice even though government waived jurisdictional filing requirement); U.S. v. Langham, 77 F.3d 1280, 1280 (lOth Cir. 1996) (appellate court lacked jurisdiction to hear appeal because notice was untimely).

Entry of an order denying a defendant’s timely motion for new trial begins the 10-day time limit for filing an appeal. FED. R. APP. P. 4(b). There is a split in the circuits as to whether a motion to reconsider the denial of a new trial motion extends the deadline for filing notice of appeal of the original judgment and sentence under Rule 4(b). Compare U.S. v. Marsh, 700 F.2d 1322, 1324 (lOth Cir. 1983) (defendant’s motion to reconsider denial of new trial does not extend time limit for filing appeal) with U.S. v. Brewer, 60 F.3d 1142, 1144 (Sth Cir. 1995) (defendant’s motion to reconsider, filed within 10 days of entry of judgment, timely filed and tolled period for filing appeal) and U.S. v. Duke, 50 F.3d 571, 575 (8th Cir. 1995) (defendant’s motion to reconsider, mailed from prison by pro se defendant on tenth day after denial, timely filed and tolled period for filing appeal); U.S. v. Ibarra, 502 U.S. 1, 4-6 (1991) (per curiam) (government’s motion to reconsider suppression order tolled period to file notice of appeal). 2583. FED. R. APP. 4(b); accord 18 U.S.C. 3731 (1994). See U.S. v. Morales, 108 F.3d 1213, 1223-24 (lOth Cir. 1997) (government’s notice of appeal filed within thirty days of effective date of defendant’s notice of appeal was timely). If the government files a timely motion for recoi ideration, the time for appeal runs from the date on which the motion for reconsideration is deni d. See U.S. v.

Greenwood, 974 F.2d 1449, 1465-67 (Sth Cir. 1992) (government’s motion for reconsideration of sentence filed within time for cross-appeals and tolled period for filing of notice of appeal until motion for reconsideration denied); U.S. v. Ridl, 26 F.3d 73, 74 (8th Cir. 1994) (government’s motion for reconsideration of sentence timely filed and tolled period for filing of notice of appeal until motion for reconsideration resolved); U.S. v. Shaffer, 789 F.2d 682, 686 n.3 (9th Cir. 1986) (government’s motion for reconsideration of grant of new trial order tolled time for filing notice of appeal); U.S. v. Cardall, 773 F.2d 1128, 1129-30 (lOth Cir. 1985) (government’s second motion for reconsideration of order to suppress evidence tolled time for filing notice of appeal because second motion arose from post-trial ruling by Supreme Court that established good faith exception to exclusionary rule).

2584. FED. R. APP. P. 4(b); see U.S. v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993) (excusable neglect finding requires equitable determination considering danger of prejudice to nonmovant, length of delay, movant’s control over delay, and whether movant acted in good faith; does not always exclude late filings caused by inadvertence, mistake, or carelessness). Courts will generally allow an appeal to proceed if the delay in filing is not due to the fault of the appellant and especially if the delay is due to the negligence of a government official. Compare Fallen v. U.S., 378 U.S. 139, 143-44 (1964) (appeal permitted when delay in filing notice of appeal due to mail system and petitioner “did all he could under the circumstances”); U.S. v. Roberts, 749 F.2d 404, 408-09 (7th Cir. 1984) (appeal permitted when delay due to prison mail system); U.S. v. Jones, 669 F.2d 559, 560-61 (8th Cir. 1982) (per curiam) (appeal permitted when clerk failed to tell defendant that original notice of appeal premature and should have been refiled within 10 days of denial of postconviction motions) and U.S. v. McMillan, 106 F.3d 322, 323 (lOth Cir. 1997) (appeal permitted when court found delay in filing notice based on inherent delays in mail and difficulties in communicating with incarcerated defendant) with U.S. v. Lewis, 921 F.2d 563, 565 (Sth Cir. 1991) (per curiam) (court’s subsequent reentry of judgment correcting clerical error on original order did not excuse party’s failure to file timely appeal) and U.S. v. Green, 89 F.3d 657, 659-60 (9th Cir. 1996) (court’s failure to mail copy of order denying defendant’s new trial motion did not excuse defendant’s failure to file timely appeal even though order stated that it should be mailed to all counsel of record).

Failure to file in a timely manner will not be excused merely because a defendant is proceeding pro se. See U.S. v. Merrifield, 764 F.2d 436, 436-37 (Sth Cir. 1985) (court lacked jurisdiction over appeal from prisoner proceeding pro se when appeal filed after deadline expired); U.S. v. Angelone, 894 F.2d 1129, 1131 (9th Cir. 1990) (same). A prisoner’s notice of appeal may be considered timely if it is posted in the prison legal mail system within the applicable time limit, even if it is not timely received by the court. FED. R. APP. P. 4(c). Compare Houston v. Lack, 487 U.S. 266, 275-76 (1988) (prisoner’s notice deemed filed upon delivery to prison officials because of peculiar obstacles of pro se defendants) and U.S. v. Moore, 24 F.3d 624, 626 (4th Cir. 1994) (prison mail rule valid for both pro se and represented appellants who are incarcerated) with U.S. v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir. 1990) (prison mail rule not valid for incarcerated appellants represented by counsel). “Entry of order” in Rule 4(b) means the entry on the docket. U.S. v. Cantero, 995 F.2d 1407, 1408 n.l (7th Cir. 1993). The Supreme Court has established a new test for determining when attorney negligence constitutes excusable neglect under Rule 4(b). This test calls for an equitable determination weighing factors such as: prejudice to government, length of delay and impact on judicial proceedings, reason for delay, including whether it was within reasonable control of defendant, and whether defendant acted in good faith. Stutson v. U.S., 516 U.S. 193, 196 (1996) (per curiam) (adopting elastic definition of excusable neglect). The elasticity of the definition can lead to varying results for similar neglect. Compare U.S. v. Brown, 133 F.3d 993, 996 (7th Cir.) (district judge did not abuse discretion in finding excusable neglect where inexperienced Wisconsin lawyer with only one client in the federal system misconstrued rule on inclusion of holidays in filing period and missed deadline by one day), cert. denied, 118 S. Ct. 1824 (1998) with U.S. v. Guy, 140 F.3d 735, 736 (7th Cir. 1998) (district court judge abused discretion where experienced federal litigator missed filing deadline because of improper inclusion of holidays in filing period). Neither the Supreme Court nor any Court of Appeals has applied Stutson to a pro se case, but courts have traditionally treated the form of pro se notices of appeal more liberally than those filed by counsel. See Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir. 1986) (court found excusable neglect when pro se defendant filed notice of appeal without correct address but attempted to preserve appeal by letter to district court); U.S. v. Young, 966 F.2d 164, 165 (Sth Cir. 1992) (untimely notice of appeal by pro se prisoner liberally construed as timely request for relief under 28 U.S.C. 2255 to correct sentence); U.S. v. Guardino, 972 F.2d 682, 685 (6th Cir. 1992) (pro se petitioner’s motion considered timely when filed 21 days after order because accompanied by motion to extend time and district court granted motion); Brannan v. U.S., 993 F.2d 709, 710 (9th Cir. 1993) (per curiam) (letter received in appellate court from petitioner acting pro se seeking reduction of sentence construed as notice of appeal and deemed filed on date arrived at appeals court); U.S. v. Pinto, F E3d 1069, 1069-70 (lOth Cir. 1993) (motion filed pro se using the word “petition” construed as request for postconviction 2255 relief, thus 60-day rather than 10-day limit applied).

Where a defendant files a notice of appeal after the 10-day deadline of Rule 4(b), but before the additional 30-day period for requesting extensions has expired, the district court should treat the notice as a request for extension of the filing deadline. U.S. v. Batista, 22 F.3d 492, 493 (2d Cir. 1994) (per curiam).

2585. U.S. v. Sanges, 144 U.S. 310, 323 (1892); see U.S. v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977) (federal government cannot appeal finding in criminal case without express statutory authority). But see U.S. v. Delatorre, 157 F.3d 1205, 1207 (lOth Cir. 1998) (federal government can appeal pretrial order in limine restricting introduction of certain evidence where reviewable under 3731) and U.S. v. Lopez-Lukis, 102 F.3d 1164, 1167 (llth Cir. 1997) (federal government can appeal order granting defendants’ motion in limine to exclude evidence on First Amendment grounds when pendant jurisdiction exists over related claims reviewable under 3731).

2586. U.S. CONST. amend. V. Double jeopardy limitations on the government’s right to appeal are discussed in Appeal in DOUBLE JEOPARDY in Part II. 2587. 18 U.S.C. 3731 (1994). The Criminal Appeals Act provides in relevant part: In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. Id.

2588. Id.; see Arizona v. Manypenny, 451 U.S. 232, 247 & n.24, 249 (1981) (all federal government appeals authorized by Criminal Appeals Act except as limited by Constitution); U.S. v. Wilson, 420 U.S. 332, 337 (1975) (“Congress intended to remove all statutory barriers to government appeals and to allow all appeals whenever the Constitution would permit.”); U.S. v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991) (Criminal Appeals Act authorizes government appeal unless prohibited by Double Jeopardy Clause). The Act provides that it “shall be liberally construed.” 18 U.S.C. 3731 (1994). It is not clear whether the Act authorizes government appeal of all sentencing orders. Compare U.S. v. Patterson, 882 F.2d 595, 598 (Ist Cir. 1989) (sentencing order not appealable under 3731 because Congress explicitly authorized government appeals in other sentencing statutes); U.S. v. Hundley, 858 F2d 58, 62-63 (2d Cir. 1988) (sentencing order not appealable under 3731 because statute plainly limits appeals to specified categories of district court orders to which sentencing orders dissimilar and because Congress expressly authorized government appeals in other statutes); U.S. v. Ferri, 686 F.2d 147, 150-51 (3d Cir. 1982) (order reducing sentence not appealable under 3731 because neither sentencing order nor order reducing sentence specifically mentioned in 3731 and statute cannot be construed to authorize appeal from all district court orders); U.S. v. Denson, 588 F.2d 1112, 1125-26 (5th Cir. 1979) (sentencing order not appealable under 3731 because order bears no material relationship to types of orders appealable under 3731); U.S. v. Byerley, 46 F.3d 694, 698 (7th Cir. 1995) (non-Guidelines sentence imposed for straddle conspiracy not appealable under 3731); U.S. v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982) (order reducing sentence not appealable under 3731) and U.S. v. McVeigh, 106 F.3d 325, 330 (lOth Cir. 1997) (per curiam) (witness sequestration order not appealable by government under 3731) with U.S. v. Wright Contracting Co., 728 F.2d 648, 650 (4th Cir. 1984) (sentencing order appealable because 3731 authorizes appeal of any judgment if not in violation of Constitution); U.S. v. Edmonson, 792 E2d 1492, 1496 (9th Cir. 1986) (sentencing order appealable because Double Jeopardy Clause not violated and list of appealable orders in 3731 not exclusive) and U.S. v. Prescon Corp., 695 F.2d 1236, 1240-41 (lOth Cir. 1982) (order modifying sentence appealable pursuant to 3731 because appeal does not place defendant in double jeopardy).

The Supreme Court has held that a state prosecution removed to federal court may be appealed under 18 U.S.C. 1291 if state law authorizes the state to appeal in criminal cases. Manypenny, 451 U.S. at 249.

When no other statutory authority exists, a narrow “special circumstance” exception allows a government appeal in a criminal case to be entertained under 18 U.S.C. 1291 if the conditions of the collateral order doctrine are satisfied. U.S. v. Horn, 29 F.3d 754, 768-69 (Ist Cir. 1994) (government appeal of assessment of attorney fees and costs against U.S. as sanction for prosecutorial misconduct allowed when conditions of collateral order doctrine satisfied and concerns that traditionally militate against allowing government appeal favorable or neutral towards appeal).

2589. 18 U.S.C. 3731 (1994). Compare U.S. v. Evans, 844 F.2d 36, 37 (2d Cir. 1988) (order dismissing various counts of federal indictment in connection with Iran-Contra scandal appealable); U.S. v. Mann, 61 F.3d 326, 330 (5th Cir. 1995) (order dismissing indictment because of discovery violation appealable); U.S. v. Reed, 77 F.3d 139, 141 (6th Cir. 1996) (en banc) (order dismissing an indictment as to any one or more counts appealable); U.S. v. Bloom, 149 F.3d 649, 651 (7th Cir. 1998) (order dismissing first count of mail fraud indictment immediately appealable even though other outstanding count not included in order); U.S. v. Lester, 992 E2d 174, 175-76 (8th Cir. 1993) (order dismissing indictment of defendant already found guilty of same crime by Indian Tribal Court appealable); U.S. v. Woodruff, SO F.3d 673, 674-75 (9th Cir. 1995) (order dismissing indictment without prejudice appealable) and U.S. v. Zabawa, 39 F.3d 279, 282-83 (lOth Cir. 1994) (order requiring government to elect limited portion of indictment for trial appealable because not significantly different from formal dismissal without prejudice) with U.S. v. Terry, 5 F.3d 874, 876 (Sth Cir. 1993) (order dismissing two overt acts from indictment not appealable when stricken material did not establish discrete basis of criminal liability that could be charged as separate count) and U.S. v. Louisiana Pacific Corp., 106 F.3d 345, 348 (lOth Cir. 1997) (order dismissing less than entire count of indictment not appealable by government under 3731). 2590. 18 U.S.C. 3731 (1994); see U.S. v. Hammad, 846 E2d 854, 857 (2d Cir.) (trial court’s order suppressing videotaped evidence appealable), modified, 858 F.2d 834 (1988); U.S. v. Johnson, 63 F.3d 242, 243 (3d Cir. 1995) (trial court’s order suppressing contraband appealable); U.S. v. Presser, 844 F.2d 1275, 1279-80 (6th Cir. 1988) (trial court’s oral statement that failure to comply with discovery order would jeopardize government’s use of witness held to be conditional suppression order and therefore appealable); U.S. v. D.F., 63 F.3d 671, 676 (7th Cir. 1995) (trial court’s order suppressing defendant’s statements appealable), vacated on other grounds, 517 U.S. 1231 (1996); U.S. v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996) (trial court’s order suppressing co-defendant’s statements as involuntary in codefendant’s proceeding appealable by defendant even though defendant not a party to co-defendant’s proceeding); U.S. v. Dominguez-Villa, 954 F.2d 562, 564-65 (9th Cir. 1992) (trial court’s order conditioning use of evidence on compliance with discovery order appealable as interlocutory order); U.S. v. Delatorre, 157 F.3d 1205, 1207 (lOth Cir. 1998) (district court’s order excluding evidence at trial of defendant’s participation in murder for purposes of proving racketeering or conspiracy charges appealable under 3731, even though court reserved ruling on admissibility of same evidence for purposes of sentencing); U.S. v. Drogoul, 1 F.3d 1546, ISSI n.13 (llth Cir. 1993) (trial court’s denial of government motion to take depositions of foreign witnesses appealable as interlocutory order because denial has practical effect of excluding evidence for purposes of 3731 when witnesses beyond federal subpoena power). But cf. U.S. v. Dean, 989 F.2d 1205, 1210-11 (D.C. Cir. 1993) (trial court’s refusal to determine in limine admissibility of documents produced through grand jury subpoena not appealable). The government must certify that the purpose of the appeal is not to delay the trial and that the evidence is material to the proceeding. 18 U.S.C. 3731 (1994); see U.S. v. Rodriguez, 975 F.2d 404, 408 (7th Cir. 1992) (appellate court has jurisdiction under 3731 to review pretrial order excluding statements of co-conspirators when statements described particulars of drug transaction and thus “qualifie[d] as substantial proof of facts material to the proceeding”). Untimely certification by the government is not always fatal to appellate jurisdiction. See U.S v. Miller, 952 F.2d 866, 875 (Sth Cir. 1992) (government’s failure to file timely certificate does not necessarily deprive appellate court of jurisdiction); U.S. v. Bailey, 136 F.3d 1160, 1163 (7th Cir. 1998) (government’s failure to file timely certificate does not deprive appellate court of jurisdiction as court has broad discretion regarding certification requirements); U.S. v. Becker, 929 F.2d 442, 445 (9th Cir. 1991) (“permitting the late filing of such a certificate falls within the discretion of the court”); U.S. v. Carrillo-Bernal, 58 F.3d 1490, 1492-97 (lOth Cir. 1995) (government’s failure to file timely certificate does not deprive court of jurisdiction; reviewing court can exercise its discretion in deciding whether to entertain appeal).

2591. 18 U.S.C. 3731 (1994); see Virgin Islands v. Mills, 935 F.2d 591, 594-95 (3d Cir. 1991) (government authorized to appeal order granting new trial); U.S. v. Wood, 958 F.2d 963, 965 (lOth Cir. 1992) (same). The government may also appeal new trial orders from the appellate court. Guam v. Borja, 983 F.2d 914, 916-17 (9th Cir. 1992). 2592. 18 U.S.C. 3731 (1994).

2593. See U.S. v. Iafelice, 978 F.2d 92, 93-94 (3d Cir. 1992) (government may appeal postverdict motion granting acquittal); U.S. v. Woolard, 981 F.2d 756, 756-57 (5th Cir. 1993) (government may

appeal pretrial decision of district court that death penalty not applicable in case because Criminal Appeals Act illustrative, not exclusive); U.S. v. Huffhines, 986 F.2d 306, 308-09 (9th Cir. 1993) (government may appeal district court’s order to return property seized in search by local authorities because government subject to sanctions for non-compliance).

2594. Compare Barnes v. U.S., 412 U.S. 837, 848 n.16 (1973) (court declined to review convictions carrying identical concurrent sentences “as a discretionary matter” after affirming conviction for possession of stolen Treasury checks); U.S. v. American Investors, Inc., 879 F.2d 1087, 1100 (3d Cir. 1989) (court declined to review conviction carrying identical concurrent sentence after affirming convictions on numerous counts of illegal cash transactions); U.S. v. Hughes, 964 F.2d 536, 541 (6th Cir. 1992) (court declined to review conviction for false statement on tax form after previously affirming conviction for falsifying union records that carried identical concurrent sentence); U.S. v. Wilson, 671 F.2d 1138, 1139 n.2 (8th Cir. 1982) (court declined to review conspiracy conviction carrying concurrent life sentence after previously affirming murder conviction) and U.S. v. Segien, 114 F.3d 1014, 1021 (lOth Cir. 1997) (court declined to review alleged error in sentencing because error rendered harmless where conviction was valid and sentence ran concurrently to equal or longer sentence based on separate indictment), cert. denied, 118 S. Ct. 1310 (1998) with U.S. v. McKie, 112 F.3d 626, 628 (3d Cir. 1997) (court refused to apply concurrent sentence doctrine when defendant’s territorial sentences for firearm conviction ran not concurrent but consecutive to federal sentence for firearm conviction); Logan v. Lockhart, 994 F.2d 1324, 1331-32 (8th Cir. 1993) (district court should have reviewed other convictions carrying life sentence because “straight life” sentence could be changed to term of years through clemency) and U.S. v. Jones, 28 F.3d 1574, 1582 (llth Cir. 1994) (court refused to apply concurrent sentence doctrine when defendant erroneously given 168-month sentence when correct maximum term was 10 years, because government conceded error and error simple to correct), vacated on other grounds, 516 U.S. 1022 (1995).

The underlying rationale for the concurrent sentence doctrine is judicial economy. See Benton v. Maryland, 395 U.S. 784, 798-800 (1969) (White, J., concurring) (application of concurrent sentence doctrine avoids wasting judicial resources by avoiding review of “redundant counts”).

2595. Ray v. U.S., 481 U.S. 736, 737 (1987) (per curiam). Compare U.S. v. Ferguson, 60 F.3d 1, 4 n.5 (Ist Cir. 1995) (concurrent sentence doctrine not applicable when $50 special assessment imposed on each count of conviction and each count carried different periods of supervised release); U.S. v. Mauro, 80 F.3d 73, 76 (2d Cir. 1996) (concurrent sentence doctrine not applicable when $50 special assessment imposed on each count of conviction); U.S. v. Barel, 939 F.2d 26, 36 (3d Cir. 1991) (concurrent sentence doctrine not applicable when total special assessment against defendant depended upon validity of each of defendant’s convictions); U.S. v. Galvan, 949 F.2d 777, 781 (Sth Cir. 1991) (concurrent sentence doctrine not applicable when $50 special assessment imposed on each count of conviction); U.S. v. Powell, 894 F.2d 895, 902 (7th Cir. 1990) (same); U.S. v. Morehead, 959 F.2d 1489, 1506 (lOth Cir. 1992) (same) and U.S. v. Witek, 61 F.3d 819, 825 (llth Cir. 1995) (concurrent sentence doctrine not applicable when $250 special assessment imposed in addition to concurrent sentence) with U.S. v. Tolliver, 116 F.3d 120, 126 (Sth Cir.) (concurrent sentence doctrine applicable to court vacating unreviewed firearm conviction of defendant serving life sentence on other counts and when court ordered return of $50 special assessment), cert. denied, 118 S. Ct. 324 (1997). 2596. Rutledge v. U.S., 517 U.S. 292, 293 (1996) (potential future adverse use of conviction, such as delay of parole eligibility or increased sentence under recidivist statute for future offense, making review necessary); Benton v. State, 395 U.S. 784, 790-91 n.6 (1969) (potential future use of conviction under habitual offender statute constituted collateral consequences making review necessary); see U.S. v. Ferguson, 60 F.3d 1, 4 n.5 (lst Cir. 1995) (court refused to apply concurrent sentence doctrine because defendant may face collateral consequences from additional convictions); U.S. v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989) (court refused to apply concurrent sentence doctrine and ordered new trial because “not satisfied that there could be no collateral consequences” from challenged conviction); U.S. v. Alfrey, 620 F.2d SSI, 556-57 (5th Cir. 1980) (court refused to apply concurrent sentence doctrine due to adverse collateral consequences when parole commission treated conviction reversed on procedural grounds as affirmed conviction); Bone v. U.S., 940 F.2d 215, 223 n.16 (7th Cir. 1991) (court refused to apply concurrent sentence doctrine because “the vacation of [one] concurrent sentence might lead the trial judge to reconsider a sentence not vacated” (quoting U.S. v. Holzer, 848 F.2d 822, 824 (7th Cir. 1988))); U.S. v. Palomba, 31 F.3d 1456, 1465 (9th Cir. 1994) (court refused to apply concurrent sentence doctrine because defendant might suffer collateral consequences if criminal history category changed in

future proceedings under Federal Sentencing Guidelines, under repeat offender statute, or through loss of credibility); Newman v. U.S., 817 F.2d 635, 637 (lOth Cir. 1987) (court refused to apply concurrent sentence doctrine due to possibility of adverse consequences on subsequent parole decisions or sentences for other crimes); U.S. v. Hudacek, 24 F.3d 143, 145 n.l (llth Cir. 1994) (court refused to apply concurrent sentence doctrine despite affirmance of life sentence because possibility of adverse collateral consequences).

2597. See U.S. v. Cowan, 819 F.2d 89, 94 (5th Cir. 1987) (court refused to apply concurrent sentence doctrine to conspiracy conviction because validity of related cocaine distribution conviction speculative); U.S. v. Brown, 996 F.2d 1049, 1053 (lOth Cir. 1993) (court declined to apply concurrent sentence doctrine to convictions for theft and possession of same stolen property because district court failed to instruct jury that defendant could not lawfully be convicted of both crimes).

2598. See U.S. v. Osunegbu, 822 F.2d 472, 481 (Sth Cir. 1987) (concurrent sentence doctrine not applicable when double jeopardy barred conviction on two counts for same crime); cf. U.S. v. Corona, 108 F.3d 565, 571-72 (Sth Cir. 1997) (concurrent sentence doctrine not applicable when concurrent sentences on two counts each carried $50 special assessment rendering them separate punishment for double jeopardy purposes).

2599. U.S. v. DeBright, 730 F.2d 1255, 1258-60 (9th Cir. 1984) (en banc). The court viewed the necessary inquiry into potential adverse collateral consequences as burdensome and almost a practical impossibility. Id. The court also noted that application of the doctrine violates separation of powers principles because the judicial branch is not vested with the power to determine which violations of the law are subject to prosecution. Id. at 1257; see also U.S. v. Carrasco, 786 F.2d 1452, 1456 (9th Cir. 1986) (concurrent sentence doctrine not applied because “it is the prosecutor, not the court, who has the primary responsibility for determining which violations of the law will be prosecuted”).

In U.S. v. Kincaid, 898 F.2d 110 (9th Cir. 1990), the Ninth Circuit extended its rejection of the concurrent sentence doctrine from the context of a challenge to a conviction underlying a concurrent sentence to a challenge to the concurrent sentence itself. Id. at 112. In Kincaid, the defendant pleaded guilty to two counts and received identical concurrent sentences. Id. at 111. On appeal, the court found that the Sentencing Guidelines had been mistakenly applied in imposing the sentence for one of the defendant’s convictions, because the offense had been committed prior to the effective date of the Sentencing Guidelines. Id. Although there was no showing of prejudice resulting from the defendant’s erroneous sentence and the other sentence was properly imposed, the court was unwilling to place upon the defendant the risk that prejudice might manifest itself in the future. Id. at 112. Accordingly, the court vacated the erroneous sentence and ordered resentencing on that count. Id. 2600. See U.S. v. Ganci, 47 F.3d 72, 73-74 (2d Cir. 1995) (per curiam) (vacating sentence for unreviewed narcotics violation when related conviction with concurrent sentence unchallenged); U.S. v. Adi, 759 F.2d 404, 409-10 (Sth Cir. 1985) (vacating unreviewed challenged firearms conviction when two other convictions with concurrent sentences affirmed); U.S. v. Butera, 677 F.2d 1376, 1386 (llth Cir. 1982) (vacating unreviewed challenged cocaine distribution conviction when other convictions with concurrent sentences unchallenged); U.S. v. Bush, 659 F.2d 163, 167-68 (D.C. Cir. 1981) (vacating two unreviewed challenged convictions when three other convictions with identical probation terms affirmed). When a court vacates a conviction for which a concurrent sentence was received, the court may remand for resentencing on valid counts to ensure that the defendant was not sentenced more heavily due to an erroneous belief that she was guilty of additional crimes. U.S. v. Davenport, 929 F.2d 1169, 1172 (7th Cir. 1991).

2601. See U.S. v. Stovall, 825 F.2d 817, 824 n.8 (5th Cir.) (vacated, unreviewed conviction can be reinstated if interests of justice require), modified, 833 F.2d 526 (1987); U.S. v. Bush, 659 F.2d 163, 168 (D.C. Cir. 1981) (vacated, unreviewed conviction can be reinstated, sentence reimposed, and another appeal taken if interests of justice later demand full consideration of issues raised on appeal).

2602. This “contemporaneous objection rule” requires objections to be made at or before trial so that the trial court can conduct a meaningful inquiry into possible prejudice before or immediately after the verdict. See Turner v. Murray, 476 U.S. 28, 37 (1986) (defendant must specifically request at trial that judge question venire on racial prejudice in order to preserve right to appeal); U.S. v. Gagnon, 470 U.S. 522, 528-30 (1985) (per curiam) (defendant must first claim right to attend certain stage of trial proceedings in order to preserve right to appeal); U.S. v. Palmer, 122 F.3d 215, 218 (Sth Cir. 1997) (defendant must raise objection to declaration of mistrial at time of declaration and thus forfeited right to appeal by waiting two months to make objection); U.S. v. Wing, 104 F.3d 986, 988 (7th Cir. 1997) (defendant must raise objection to prosecution’s comments on his assertion of Fifth Amendment rights at time of transgression to preserve issue for appeal).

The Supreme Court described “forfeiture” as the failure to make a timely assertion of a right. U.S. v. Olano, 507 U.S. 725, 733-34 (1993). Courts review forfeited claims for plain error. Id. The timely objection must also be specific. See U.S. v. Linwood, 142 F.3d 418, 423 (7th Cir.) (timely objection did not preserve issue on appeal where defense counsel failed to state clearly reasons for objection to jury instructions), cert. denied, 119 S. Ct. 224 (1998); U.S. v. Norman T., 129 F.3d 1099, 1106 (lOth Cir. 1997).(defendant’s objection at trial to introduction of sex abuse victim’s statements to doctor did not preserve issue for appeal where objections at trial based on different reasoning from objection on appeal), cert. denied, 118 S. Ct. 1322 (1998). 2603. Under a long-standing exception to the contemporaneous objection rule, a party may raise jurisdictional objections at any time. See Virgin Islands v. Williams, 892 F.2d 305, 309 (3d Cir. 1989) (defendant’s claim that magistrate did not have authority to conduct voir dire jurisdictional in nature and not subject to contemporaneous objection rule); U.S. v. Tolliver, 61 F.3d 1189, 1199 (Sth Cir. 1995) (defendant’s claim that Juvenile Delinquency Act deprived court of jurisdiction not subject to contemporaneous objection rule), vacated on other grounds sub nom., Sterling v. U.S., 516 U.S. 1105 (1996); U.S. v. Durham, 941 F.2d 886, 892 (9th Cir. 1991) (defendant’s claim that special assistant U.S. Attorney not properly appointed jurisdictional in nature and not time-barred). A party may also argue for the first time on appeal that a statute is unconstitutionally vague. See U.S. v. Tabacca, 924 E2d 906, 912 (9th Cir. 1991) (claim that federal statute unconstitutionally vague considered when raised for first time on appeal); U.S. v. Easter, 981 F.2d 1549, 1557 (lOth Cir. 1992) (claim that federal statute unconstitutionally vague for failing to define “cocaine base” considered when raised for first time on appeal). An objection is also properly made first on appeal when a Supreme Court decision changes the law while an appeal is pending. See U.S. v. Mulder, 889 F.2d 239, 240 (9th Cir. 1989) (claim not waived on appeal by failure to raise objection in district court when failure not due to “belated decision to change trial tactics,” but to intervening Supreme Court case that clarified standards for cases involving independent source of probable cause); U.S. v. Novey, 922 F.2d 624, 629 (lOth Cir. 1991) (claim not precluded on appeal by failure to raise objection at trial when intervening Supreme Court decision changed law while appeal pending).

The Fifth Circuit has held that, unlike objections based on multiplicity in an indictment, which are subject to the contemporaneous objection rule, an objection to multiplicity of sentences can be raised for the first time on appeal. See U.S. v. Corona, 108 F.3d 565, 571 (Sth Cir. 1997) (claim that sentences imposed were multiplicitous not precluded on appeal by failure to raise objection at trial).

2604. FED. R. EV[D. 103(a)(1) (error may not be predicated upon a ruling admitting evidence unless substantial right of party affected and timely objection or motion to strike appears on record stating specific ground of objection). Compare U.S. v. Houlihan, 92 F.3d 1271, 1297-98 (Ist Cir. 1996) (objection to admission of evidence forfeited when made four days after evidence admitted), cert. denied, 117 S. Ct. 963 (1997); U.S. v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) (objection to admission of evidence of criminal activity by other members of RICO enterprise waived because not raised at trial); U.S. v. Brewer, I F.3d 1430, 1434 (4th Cir. 1993) (objection to admission of testimony waived because no basis for objection stated at trial); Sharp v. Johnson, 107 F.3d 282, 285 (5th Cir. 1997) (objection to admission of evidence of unadjudicated prior offense forfeited when untimely made); U.S. v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998) (objection to admission of evidence of embezzlement waived when not raised at trial); U.S. v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996) (objection to improper crossexamination of defendant forfeited when made at the close of evidence); U.S. v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994) (objection to suppression of evidence on new basis discovered during trial waived when not raised contemporaneously); U.S. v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) (objection to admission of testimony as improperly admitted for bolstering not preserved when defendant objected to testimony as without sufficient foundation); U.S. v. Molina, 75 F.3d 600, 602 (lOth Cir. 1996) (objection to admission of other crimes evidence forfeited when untimely made); U.S. v. King, 73 F.3d 1564, 1571 (llth Cir. 1996) (objection to refusal to admit exculpatory evidence forfeited when untimely made) and

U.S. v. Spriggs, 102 F.3d 1245,1257 (D.C. Cir. 1996) (per curiam) (objection to admission of testimony forfeited when untimely made), cert. denied, 118 S. Ct. 97 (1997) with U.S. v. Puzzo, 928 F.2d 1356, 1364 (2d Cir. 1991) (objection to restriction of defendant’s testimony not waived despite waiver of opening statement when defense counsel’s request for sidebar conference was rebuffed after trial court’s original adverse ruling regarding defendant’s testimony and counsel persisted in attempts to elicit testimony); U.S. v. Sheffey, 57 F.3d 1419, 1424 (6th Cir. 1995) (objection to admission of testimony not waived when defendant argued testimony inadmissible because addressed “ultimate issue,” although defendant did not raise specific issue of admissibility of lay witness opinions) and U.S. v. Whitaker, 127 F.3d 595, 600 (7th Cir. 1997) (admission of computer print-outs into evidence properly preserved for appeal where defendant’s attorney did not cite particular evidentiary rule, but objection was clear in context of court proceedings), cert. denied, 118 S. Ct. 1098 (1998).

2605. See U.S. v. Morales-Cartagena, 987 F.2d 849, 853-54 (Ist Cir. 1993) (review not preserved when defendant failed to object to prosecutor’s misstatement of evidence); Hoke v. Netherland, 92 F.3d 1350, 1359 (4th Cir. 1996) (review not preserved when defendant failed to object to prosecution knowingly allowing witness to testify falsely); U.S. v. Tomblin, 46 F.3d 1369, 1387 (5th Cir. 1995) (review not preserved on defendant’s claim that prosecutor’s cross-examination about connection to bankrupt restaurants exceeded proper scope because objection to question concerning defendant’s involvement in business enterprises not sufficiently specific); U.S. v. Benitez, 92 F.3d 528, 535 (7th Cir. 1996) (review not preserved when defendant failed to object at trial to prosecutor’s allegedly improper inferences drawn from defendant’s exercise of right to remain silent); U.S. v. Wyatt, 26 F.3d 863, 865 (8th Cir. 1994) (per curiam) (review not preserved when defendant failed to object to prosecutor’s statement at sentencing in alleged violation of plea agreement); U.S. v. Garate-Vergara, 942 F.2d 1543, 1551 (llth Cir. 1991) (review not preserved when defendant failed to timely object to prosecutor’s inflammatory statements), modified, 991 F.2d 662 (1991). But see Swofford v. DeTella, 101 F.3d 1218, 1222 (7th Cir. 1996) (habeas review of claim of prosecutorial misconduct permitted despite defendant’s failure to raise issue at trial because state appellate court had not procedurally barred review and had entertained merits of claim), vacated on other grounds, sub nom. Swofford v. Dobucki, l lS S. Ct. 439 (1997). 2606. See U.S. v. Montas, 41 F.3d 775, 779 (Ist Cir. 1994) (failure to object at trial to judge’s allegedly improper conduct in questioning prosecution witnesses resulted in waiver of issue); U.S. v. Filani, 74 F.3d 378, 387 (2d Cir. 1996) (failure to object at trial to judge’s alleged intrusion as an advocate for prosecution resulted in forfeiture of issue); U.S. v. Seago, 930 F.2d 482, 493 (6th Cir. 1991) (failure to object at trial to gestures of disbelief by judge resulted in waiver of issue); U.S. v. Johnson, 990 F.2d 1129, 1133 (9th Cir. 1993) (failure to object at trial to judge’s allegedly prejudicial characterization of drugs as “scourge” resulted in waiver of claim on review); U.S. v. Stenzel, 49 F.3d 658, 661 (lOth Cir. 1995) (failure to request trial judge’s recusal when defense counsel inquired into judge’s possible conflict of interest resulted in waiver of issue); U.S. v. Ramos, 933 F.2d 968, 974 (llth Cir. 1991) (per curiam) (failure to object at trial to judge’s allegedly biased statement resulted in review for “fundamental error” only).

2607. For a discussion of the contemporaneous objection rule as applied to sentencing errors, see APPELLATE REVIEW OF SENTENCES in this Part.

2608. FED. R. CRIM. P. 30 (“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”). Compare U.S. v. Camuti, 78 F.3d 738, 744 (Ist Cir. 1996) (review of jury charge forfeited when defendant failed to request particular inclusions and exclusions at trial); U.S. v. Gonzalez, 110 F.3d 936, 945 (2d Cir. 1997) (review of jury charge that possession of handguns was “only issue” to decide to convict defendant forfeited when objection untimely made); U.S. v. Sokolow, 91 F.3d 396, 408 (3d Cir. 1996) (review of jury charge forfeited when defendant failed to object to mens rea instruction at trial), cert. denied, 117 S. Ct. 960 (1997); U.S. v. Cedelle, 89 F.3d 181, 184-85 (4th Cir. 1996) (review of jury charge forfeited because defendant untimely objected to instruction concerning government’s burden of proof); U.S. v. Flores, 63 F.3d 1342, 1374 (Sth Cir. 1995) (review of jury charge forfeited when defendant failed to object at trial to penalty phase instructions); U.S. v. McCall, 85 F.3d 1193, 1195 (6th Cir. 1996) (review of jury charge forfeited when defendant failed to object at trial to court’s decision not to give alibi instruction); U.S. v. lenco, 92 F.3d 564, 570 (7th Cir. 1996) (review of jury charge forfeited when defendant failed to object at trial to statutory meaning instruction); U.S. v. Sandow, 78 F.3d 388, 391 (8th Cir. 1996) (review of jury charge forfeited when defendant failed to object at trial to instruction concerning admitted documents); U.S. v. Montgomery, 150 F.3d 983, 998 (9th Cir.) (review of jury charge forfeited when defendant failed to object at trial to statement of elements of conspiracy under federal law), cert. denied, 119 S. Ct. 267 (1998); U.S. v. Wiktor, 146 F.3d 815, 817 (lOth Cir. 1998) (review of jury charge forfeited when defendant failed to object at trial to lack of cautionary instructions regarding particular witness testimony and provided definition of “maliciously”); U.S. v. Mitchell, 146 F.3d 1338, 1342 (llth Cir. 1998) (review of jury charge forfeited when defendant failed to enter any objection at trial) and U.S. v. Spriggs, 102

F.3d 1245, 1259 (D.C. Cir. 1996) (per curiam) (review of removal of question of effect on interstate commerce from jury’s determination waived when defendant failed to timely object), cert. denied, 118 S. Ct. 97 (1997) with U.S. v. Ghazaleh, 58 F.3d 240, 244 (6th Cir. 1995) (objection to instruction not waived, although defendant failed to move for instruction at trial, because district court’s ruling on co-defendant’s motion sufficiently broad that defendant could have believed separate motion futile); U.S. v. Martinez, 988 F.2d 685, 698 (7th Cir. 1993) (objection to instruction not waived when defendant objected to prior inconsistent statement instruction even though, when objecting, defendant did not quote testimony in question or elaborate upon its inconsistency); U.S. v. Agnew, 931 F.2d 1397, 1401 (lOth Cir. 1991) (objection to instruction not waived although defendant failed to object after jury instructed because advance objections to charge made with “sufficient specificity and distinctness”) and U.S. v. Purvis, 21 F.3d 1128, 1130 (D.C. Cir. 1994) (objection to instruction not waived when district court record “ambiguous” on specificity and objection sufficient to provide court with some indicia of potential defects). A defendant’s objection to a jury instruction on a ground different from that urged on appeal does not suffice to preserve the objection for appeal. See U.S. v. Torres, 901 F.2d 205, 227-28 (2d Cir. 1990) (defendant who stated ground for objection to jury instruction different from that urged on appeal could not raise issue at appellate court because different grounds equivalent to inexplicit objection under Rule 30).

2609. See U.S. v. Rowe, 144 F.3d 15, 20 (Ist Cir. 1998) (defendant’s failure to raise claim of juror bias, on basis juror was caring for his wife’s grandmother, until after trial, when potential bias known by defendant during trial, amounts to waiver of claim on appeal); U.S. v. Reynolds, 64 F.3d 292, 296 (7th Cir. 1995) (failure to object at trial to juror’s lack of candor during voir dire resulted in waiver of issue); U.S. v. Lomax, 87 F.3d 959, 962 (8th Cir. 1996) (failure to object at trial to jury bias due to jury overhearing sidebar conference resulted in forfeiture of issue); U.S. v. Olano, 62 F.3d 1180, 1192 (9th Cir. 1995) (failure to object at trial to juror bias based on fact that juror’s in-law worked for bank defendant allegedly defrauded resulted in forfeiture of issue); U.S. v. Rodriguez-Garcia, 983 F.2d 1563, 1572-73 (lOth Cir. 1993) (failure to object at trial to alleged juror bias resulted in waiver of claim on review).

2610. Compare Levasseur v. Pepe, 70 E3d 187, 192 (Ist Cir. 1995) (defendant’s timely claim of ineffective assistance of counsel did not preserve separate Due Process and Confrontation Clause claims when untimely made); U.S. v. Delano, 55 F.3d 720, 726 (2d Cir. 1995) (defendant’s claim that statutory definition of property under state larceny scheme did not include labor or services not preserved when defendant argued that proof at trial established only larceny by coercion); U.S. v. Tipton, 90 F.3d 861, 873 (4th Cir. 1996) (defendants’ claim that their absence during jury selection violated Sixth Amendment rights not preserved because defendants failed to object at trial), cert. denied, 117 S. Ct. 2414 (1997); U.S. v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994) (defendant’s involuntariness claim not preserved when admissibility of statement challenged on other grounds in pretrial motion to suppress); U.S. v. McIntyre, 836 F.2d 467, 470 (lOth Cir. 1987) (defendant’s claim that partially inaudible tape recording of conversation with government informant violated Sixth Amendment right to public trial not preserved because defendant failed to object at trial) and U.S. v. Maurice, 69 F.3d 1553, 1556 (llth Cir. 1995) (per curiam) (defendant’s claim of improper upward departure from Sentencing Guidelines not preserved because defendant failed to object at trial) with U.S. v. Urena, 27 F.3d 1487, 1492 (lOth Cir. 1994) (claim not waived when defendant made good faith general objection to translator’s competence) and U.S. v. Anderson, 39 F.3d 331, 342 (D.C. Cir. 1994) (per curiam) (claim not waived when counsel argued defendant entitled to transcript based on indigent status, although counsel did not specifically state due process and equal protection grounds).

2611. The situations where an unpreserved claim may proceed are limited. See U.S. v. Tuesta-Toro, 29 F.3d 771, 776 (Ist Cir. 1994) (claim of ineffective assistance of counsel not reviewable if raised for first time on appeal unless critical facts not in dispute and record sufficiently developed); U.S. v. Stantini, 85 F.3d 9, 20 (2d Cir. 1996) (claim of ineffective assistance of counsel not reviewable when raised for first time on appeal unless resolution is beyond any doubt or would be in the interests of justice); U.S. v. Crooks, 83 F.3d 103, 108 (Sth Cir. 1996) (claim of ineffective assistance of counsel not reviewable when raised for first time on appeal unless record permits fair evaluation of merits of claim); U.S. v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996) (claim of ineffective assistance of counsel not reviewable when raised for first time on appeal unless record provides adequate basis for review); U.S. v. Bradford, 78 F.3d 1216, 1224-25 n.ll (7th Cir. 1996) (claim of ineffective assistance of counsel not reviewable when raised for first time on appeal unless: record is sufficiently developed to consider issue; both parties ask appellate court to resolve matter, question has been briefed and argued and entire trial record is before Court of Appeals; or issue is sufficiently clear cut); U.S. v. Marks, 85 F.3d 396, 398 (8th Cir. 1996) (claim of ineffective assistance of counsel not reviewable for first time on appeal unless claim can be made without development of fact outside of original record); U.S. v. Andrews, 75 F.3d 552, 557 (9th Cir. 1996) (claim of ineffective assistance of counsel not reviewable for first time on appeal unless record sufficiently

developed to allow such determination); U.S. v. Gordon, 4 F.3d 1567, 1570 (lOth Cir. 1993) (claim of ineffective assistance of counsel not reviewable if raised for first time on appeal unless record of error is sufficiently developed or claim does not merit further factual inquiry).

2612. See U.S. v. Palow, 777 F.2d 52, 54 (lst Cir. 1985) (defendant’s request for severance not transferable to co-defendant); U.S. v. Hernandez, 896 F.2d 513, 523 (llth Cir. 1990) (defendant’s failure to object to allegedly unfair testimony waived issue on appeal, even though co-defendants’ counsel objected to various portions of testimony and moved for mistrial). But see U.S. v. Alzanki, 54 F.3d 994, 1006 (Ist Cir. 1995) (objection of co-defendant’s counsel respecting claim witness not qualified as expert sufficient to preserve claim where trial judge announced at outset that objection by either defendant would preserve claim for both); U.S. v. Dinome, 86 F.3d 277, 282 n.4 (2d Cir. 1996) (objection of co-defendant’s counsel to instructional error sufficient for defendant on appeal); U.S. v. DeLuca, 137 F.3d 24, 32 n.14 (5th Cir.) (objection of co-defendant respecting erroneous jury instruction sufficient to preserve appeal where parties agreed at onset that objection for one defendant would serve as objection for all), cert. denied, 119 S. Ct. 174 (1998).

2613. Compare U.S. v. Rodriguez, 938 F.2d 319, 322 (Ist Cir. 1991) (government’s objection to trial court’s failure to impose statutory minimum sentence waived because not raised below); U.S. v. Garcia-Pillado, 898 F.2d 36, 39-40 (5th Cir. 1990) (government’s objection to trial court’s failure to impose statutory minimum of five-year sentence waived because not raised below); U.S. v. BarajasNunez, 91 F.3d 826, 830 (6th Cir. 1996) (government’s failure to object to downward departure sentencing either at time of defendant’s request for downward departure sentence or during sentencing proceedings resulted in waiver of issue); U.S. v. Paredes, 87 F.3d 921, 924 (7th Cir. 1996) (government’s failure to assert that defendant forfeited her objection to alleged error resulted in waiver of issue); U.S. v. Filker, 972 F.2d 240, 241-42 (8th Cir. 1992) (government’s failure to object to sentence below Sentencing Guidelines range waived issue on appeal, even when defendant did not raise waiver point); U.S. v. Beraun-Panez, 812 F.2d 578, 582 (9th Cir.) (government’s charge that trial court erred in excluding evidence waived when government failed to make offer of proof pursuant to FED. R. EvID. 103), modified, 830 F.2d 127 (1987); U.S. v. Brown, 925 F.2d 1301, 1304 (lOth Cir. 1991) (government’s objection to trial court’s consideration of facts underlying defendant’s motion to dismiss indictment waived on appeal because not raised below) and U.S. v. Prichett, 898 F.2d 130, 131 (llth Cir. 1990) (per curiam) (government’s objection to district court’s departure from Sentencing Guidelines waived because not raised below) with U.S. v. Cardona, 955 F.2d 976, 981-82 (5th Cir. 1992) (government’s standing challenge preserved although government did not raise issue at trial because no facts offered during trial from which defendant’s standing could reasonably be inferred and thus requiring government to raise issue would mean requiring them to raise numerous potentially irrelevant objections at trial solely for purpose of preserving for appeal) and U.S. v. Miller, 812 F.2d 1206, 1209 (9th Cir. 1987) (government’s argument preserved when raised at suppression hearing even though not vigorously pursued). 2614. See HABEAS RELIEF FOR STATE PRISONERS AND HABEAS RELIEF FOR FEDERAL PRISONERS in this Part. 2615. FED. R. CRIM. P.12(b)(1).

2616. FED. R. CRIM. P. 12(b)(2). See Dismissals of Indictments in INDICTMENTS in Part II. 2617. See U.S. v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980) (defense of outrageous government conduct presents an issue for the judge which should be raised pretrial); U.S. v. Henderson-Durand, 985 F.2d 970, 973 (8th Cir. 1993) (objection raised post-trial not sufficient to preserve appeal for outrageous government conduct). The Sixth and Seventh Circuits, however, do not acknowledge outrageous government conduct as a defense even if timely raised. U.S. v. Tucker, 28 F.3d 1420, 1426 (6th Cir. 1994) (defendant not entitled to dismissal of indictment for trafficking food stamps, regardless of government action to induce crime, because outrageous government conduct not a valid defense in circuit); U.S. v. Garcia, 89 F.3d 362, 367 (7th Cir. 1996) (defendant not entitled to reversal of drug conviction because outrageous conduct not a valid defense in circuit).

2618. FED. R. CRIM. P. 12(b)(3); see U.S. v. Wilson, IIS F.3d 1185, 1190 (4th Cir. 1997) (defendant’s failure to make pretrial motion to suppress evidence allegedly discovered in violation of Fourth Amendment rights resulted in waiver of issue); U.S. v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir.)

(defendant’s failure to make pretrial motion to suppress evidence discovered during unlawful investigatory stop resulted in waiver of issue), cert. denied, 118 S. Ct. 326 (1997); U.S. v. Davenport, 986 F.2d 1047, 1048 (7th Cir. 1993) (defendant’s failure to make motion to exclude confession forfeited claim); U.S. v. Cody, 7 F.3d 1523, 1526 n.3 (lOth Cir. 1993) (defendants’ failure to pursue issue of suppressing incriminating evidence from police search before district court resulted in waiver of issue). For a more detailed discussion of suppression of evidence, see THE EXCLUSIONARY RULE in Part I. 2619. FED. R. CRIM. P. 12(b)(4).

2620. FED. R. CRIM. P. 12(b)(5). See Review of Misjoinder and Failure to Sever in JOINDER AND SEVERANCE in Part II for a detailed discussion.

2621. See U.S. v. Slay, 714 F.2d 1093, 1094 (llth Cir. 1983) (per curiam) (objection that magistrate biased untimely when raised for first time on appeal, because defendant knew of magistrate before suppression hearing).

2622. See Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that courts of appeal may adopt rule requiring objection to magistrate’s report to preserve appeal, provided parties receive clear notice of consequences of failure to object). Compare U.S. v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984) (defendant’s failure to file written objections to magistrate’s report within allotted 10-day period waived right to appellate review); U.S. v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988) (defendant’s failure to object within 10 days to magistrate’s finding that identification procedures not suggestive waived right to appellate review); U.S. v. Foote, 898 F.2d 659, 664 (8th Cir. 1990) (defendant’s failure to object to magistrate’s pretrial detention order waived right to appellate review) and U.S. v. Slay, 714 F.2d 1093, 1095 (llth Cir. 1983) (per curiam) (defendant’s failure to identify objectionable findings in magistrate’s report waived right to appellate review) with Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam) (defendant’s failure to make timely objection to magistrate’s report did not waive right to appellate review of magistrate’s decision where report failed to state clearly consequences of failure to object) and U.S. v. Kye Soo Lee, 898 F.2d 1034, 1039 n.6 (5th Cir. 1990) (government’s argument preserved because issue presented to district court through written objections to magistrate’s report).

2623. See Tollett v. Henderson, 411 U.S. 258, 266 (1973) (guilty plea waived claim of discrimination in grand jury selection). This issue is discussed in Consequences of a Plea in GUILTY PLEAS in Part II. 2624. FED. R. CRIM. P. Il(a)(2). For a discussion of conditional guilty pleas, see Consequences of a Plea in GUILTY PLEAS in Part II.

2625. Compare U.S. v. Arango-Echeberry, 927 F.2d 35, 37 (lst Cir. 1991) (defendant’s failure to renew motion for acquittal at close of evidence precluded appellate review); U.S. v. Miles, 889 F.2d 382, 384 (2d Cir. 1989) (defendant’s failure to renew objection to ruling prohibiting reference to witness’s prior misdemeanor offense precluded appellate review); U.S. v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995) (defendant’s failure to renew motion for acquittal at close of all evidence precluded appellate review); U.S. v. Price, 134 F.3d 340, 350 (6th Cir.) (defendant’s failure to renew motion for acquittal constituted waiver of appellate review), cert. denied, 119 S. Ct. 114 (1998); U.S. v. Brimley, 148 F.3d 819, 821 (7th Cir. 1998) (defendant’s failure to renew acquittal motion initially made at close of government’s case constituted waiver of issue for appeal); U.S. v. Wadena, 152 F.3d 831, 853 (8th Cir. 1998) (defendant’s failure to renew objection to evidence at close of government case constituted waiver of issue for appeal); U.S. v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995) (defendant’s failure to renew motion for acquittal at close of evidence precluded appellate review); Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1521 (lOth Cir. 1997) (defendants’ failure to renew summary judgment argument when denial of summary judgment was based on factual dispute for trial precluded appellate review); U.S. v. Adams, 91 F.3d 114, 116 (llth Cir. 1996) (per curiam) (defendant’s failure to renew motion for acquittal at close of defense case resulted in waiver of issue absent demonstrated manifest miscarriage of justice) and U.S. v. Toms, 136 F.3d 176, 181 (D.C. Cir. 1998) (defendant’s failure to renew motion for acquittal on gun charge at close of government’s case was waiver of issue on appeal except for clear error) with U.S. v. Palow, 777 F.2d 52, 56 (Ist Cir. 1986) (defendant’s objection to proposed instructions need not be renewed when instructions actually given, because defendant’s prior express reservation of right in

instructions sufficient to preserve appellate review); U.S. v. Vebeliunas, 76 F.3d 1283, 1292 (2d Cir. 1996) (defendant’s unsuccessful pretrial motion seeking jury instruction on statute of limitations sufficient to preserve issue because purely issue of law); U.S. v. Stouffer, 986 F.2d 916, 924 n.7 (5th Cir. 1993) (defendant’s failure to renew request for severance at close of evidence did not preclude appellate review of court’s alleged erroneous denial of pretrial motion to sever); U.S. v. Blackman, 904 F.2d 1250, 1256 (8th Cir. 1990) (request for continuing objection to all evidence defendant sought to suppress, granted by court at outset of trial, preserved issue for appeal even though defendant did not object at time of admission of two specific statements at trial) and U.S. v. Rascon, 8 F.3d 1537, 1538-39 (lOth Cir. 1993) (defendant’s initial objection to admissibility of co-conspirators’ statements preserved issue for appeal when court denied objection, but explicitly placed burden on government to notify court when government attorney satisfied admissibility standard met).

2626. Luce v. U.S., 469 U.S. 38, 43 (1984) (defendant must testify in order to preserve claim of improper impeachment of defendant after motion in in limine denied). In Luce, the Supreme Court used the term in limine to define any motion made before or during trial in order to exclude anticipated prejudicial evidence before the evidence is actually offered. Id. at 40 n.2; see U.S. v. Joost, 133 F.3d 125, 129 (Ist Cir.) (motion in limine to have prior conviction excluded not sufficient to preserve issue for appeal in absence of further objection), cert. denied, 118 S. Ct. 1545 (1998); U.S. v. Birbal, 62 F.3d 456, 464 (2d Cir. 1995) (motion in limine to exclude all evidence regarding fatal heroin overdose of defendant’s customer without additional objections to inflammatory statements throughout trial not sufficient to preserve evidentiary ruling for appeal); U.S. v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993) (motion in limine to exclude polygraph evidence not sufficient to preserve issue for appeal); U.S. v. Kincaide, 145 F.3d 771, 780 (6th Cir. 1998) (defendants’ pretrial motions for separate trials absent renewal of motion at close of evidence at trial did not preserve issue for appeal); U.S. v. Stephenson, 53 F.3d 836, 843 (7th Cir. 1995) (motion in limine to exclude admissions by co-conspirators not sufficient to preserve issue for appeal without renewal of objection at trial); U.S. v. Pena, 67 F.3d 153, 155 (8th Cir. 1995) (motion in limine to exclude other bad acts not sufficient to preserve issue for appeal); U.S. v. Olano, 62 F.3d 1180, 1205 (9th Cir. 1995) (defendant must testify in order to preserve claim of improper impeachment of defendant after motion in limine denied); U.S. v. Sinclair, 109 F.3d 1527, 1536 (lOth Cir. 1997) (motion in limine to exclude witness not sufficient to preserve issue for appeal); Li.S. v. Khoury, 901 F.2d 948, 966 (llth Cir.) (defendant’s failure to renew denied motion in limine for competency examination of witness resulted in waiver of claim on appeal), modified, 910 F.2d 713 (1990). If a party fails to preserve an issue raised in a pretrial motion in limine by contemporaneous objection at trial, an appellate court may nonetheless hear the issue under certain circumstances. See, e.g., U.S. v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (defendant’s motion in limine sufficient to preserve objection when defendant clearly identified ruling sought and trial court ruled upon motion), vacated in part, 110 F.3d 62 (1997); U.S. v. Liu, 941 F.2d 844, 846 (9th Cir. 1991) (defendant’s motion in limine to exclude testimony sufficient to preserve objection when trial court denial was clearly final and court threatened sanctions for making objection). The Tenth Circuit has established a three-part test to determine when a party need not renew a motion in limine by contemporaneous objection at trial to preserve the issue for appeal: (I) The issue must have been adequately presented to the district court when it considered the pretrial motion; (2) the issue is one that can be finally decided prior to trial; (3) the district court issued a definitive ruling on the motion in limine. Pandit v. American Honda Motor Co., 82 F.3d 376, 380 (lOth Cir. 1996) (quoting U.S. v. Mejia-Alarcon, 995 F.2d 982, 987 (lOth Cir. 1993)). The Eighth Circuit has adopted a similar two-part test to determine when a denied pretrial motion has been preserved for appeal absent a renewal of the motion at trial, based on: (1) the appellate court’s practical ability to determine whether the appellant knew of the error and consented to it; and (2) the lack of fairness of reversing the trial court on an issue it did not have the opportunity to consider. U.S. v. Rogers, 150 F.3d 851, 855 (8th Cir. 1998) (quoting U.S. v. Westbrook, 896 F.2d 330, 337 (8th Cir. 1990)). 2627. See U.S. v. David, 83 F.3d 638, 645 (4th Cir. 1996) (review not precluded despite failure to object at trial because supervening decision prior to appeal undercuts well-settled law extant at trial); U.S. v. Holmes, 93 F.3d 289, 292-93 (7th Cir. 1996) (same); U.S. v. Lui, 941 F.2d 844, 846 (9th Cir. 1991) (defendant did not waive objection to admission of drug courier profile testimony, although no objection raised at trial, when court threatened defendant with sanctions in denying defendant’s motion in limine to exclude testimony); U.S. v. Byers, 740 F.2d 1104, 1109 n.6 (D.C. Cir. 1984) (defendant did not waive objection to psychiatrist’s testimony when testimony surprise and defendant reasonably could have thought objection futile because no federal circuit had barred such testimony on Fifth Amendment grounds). But cf. Waldrop v. Jones, 77 F.3d 1308, 1315 (llth Cir. 1996) (defendant waived objection to jury instruction when defendant failed to demonstrate that challenging instruction in state court would be futile).

2628. See U.S. v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (review not precluded by failure to raise issue of disparity in co-defendants’ sentences at trial because all co-defendants sentenced after appellant and objection based on unconstitutional disparity could not have been made at that time); U.S. v. Gonzales, 927 F.2d 139, 144 (3d Cir. 1991) (review not precluded when due process claim not raised prior to trial because information on which motion based unavailable to defendant until eve of trial); U.S. v. McKenzie, 768 F.2d 602, 609 (5th Cir. 1985) (review not precluded by defendant’s failure to specifically request order for production of document because defendant unaware of document’s existence); U.S. v. Sardin, 921 F.2d 1064, 1067 (lOth Cir. 1990) (review not precluded by failure to raise issue of disparity in co-defendants’ sentences at trial because co-defendants sentenced separately and defendant had no means to determine if disparity existed).

2629. Waiver precludes even plain error review. U.S. v. Olano, 507 U.S. 725, 733-34 (1993). Compare U.S. v. Shifman, 124 F.3d 31, 39 (lst Cir.) (defendant waived right to plain error review when court referred jury to written jury instructions in response to their question since defendant’s counsel had accepted jury instructions), cert. denied, 118 S. Ct. 1053 (1998); U.S. v. Moser, 123 F.3d 813, 830 (5th Cir.) (defendant waived right to plain error review of judge’s bias where defendant declined to seek recusal after judge, immediately prior to sentencing, advised defendant of judge’s concerns and gave defendant opportunity to seek recusal), cert. denied, 118 S. Ct. 642 (1997); U.S. v. Newman, 148 F.3d 871, 878 (7th Cir. 1998) (defendant waived right to plain error review of sentencing when judge asked defendant if he was satisfied with the way the sentence was computed and defendant’s counsel responded that there was no need to do any further calculation); U.S. v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (defendant waived right to plain error review by making a calculated decision not to challenge court’s authority to enter a sua sponte order vacating conviction that was obtained in defendant’s absence); U.S. v. Klinger, 128 F.3d 705, 708 (9th Cir. 1997) (defendant waived right to plain error review by not objecting at trial to defects in the indictment, pursuant to FED. R. CRIM. P. 12(f)); U.S. v. Hardwell, 80 F.3d 1471, 1487 (lOth Cir.) (defendant waived right to plain error review of joinder of defendants by proposing joinder at trial), cert. denied, 118 S. Ct. 1570 (1998); and U.S. v. Master, 118 E3d 1524, 1526 (llth Cir. 1997) (defendant waived right to plain error review of being sentenced above the guideline range since defendant fully comprehended the error the court was going to make and nonetheless agreed to be bound by it) with U.S. v. West Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir.) (reviewing jury instructions for plain error when defendant submitted instructions with same problem he now objects to), cert. denied, 118 S. Ct. 700 (1998) and U.S. v. Dean, 76 F.3d 329, 334 (lOth Cir. 1996) (reviewing admission of defendant’s prior convictions for plain error even where defendant stipulated to their admission and used them in trial strategy).

2630. FED. R. CRIM. P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). See Johnson v. U.S., 520 U.S. 461, 465 (1997) (failure to assert a right usually results in forfeiture, but the plain error rule mitigates). The doctrine recognizes that “where a defendant’s substantial personal rights are at stake, the rule of forfeiture should bend slightly if necessary to prevent a grave injustice.” Accord U.S. v. Williams, 152 F.3d 294, 300 (4th Cir. 1998) (claim of error in jury instructions reviewable on appeal for plain error even if no objection below); Sawyer v. Butler, 881 F.2d 1273, 1285-86 (5th Cir. 1989) (claim that prosecutor erred by misleading capital jury about responsibility for sentencing decisions reviewable on appeal for plain error even if no objection below), aff’d, 497 U.S. 227 (1990). An appellate court may review for plain error if an objection is unspecific. See U.S. v. Cardozo, 129 F.3d 6, 19 (lst Cir. 1997) (reviewing due process claim when objection was merely mentioned in a perfunctory way, leaving court to do counsel’s work); U.S. v. Williams, 133 F.3d 1048, 1051 (7th Cir. 1998) (reviewing admission of hearsay testimony for plain error where defendant failed to make a specific objection at trial); U.S. v. Wills, 88 F.3d 704, 718 (9th Cir. 1996) (reviewing jury instructions for plain error where at trial defendant objected generally to proposed instructions, but stated no specific grounds). An appellate court may also review for plain error if an objection is untimely. See U.S. v. Johntson, 127 F.3d 380, 392 (5th Cir.) (reviewing testimony concerning defendant’s prior criminal record for plain error where defendant failed to renew objection raised in motion in limine at trial), cert. denied, 118 S. Ct. 1174 (1998).

Appellate courts generally apply the plain error rule cautiously. See Johnson, 520 U.S. at 465 (cautioning against any unwarranted expansion of the rule in order to encourage trial participants to seek a fair and accurate trial the first time around); U.S. v. Frady, 456 U.S. 152, 163 n.14 (1982) (plain error rule authorizes appellate courts to correct only “particularly egregious errors” and thus should be used “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”); U.S. v. Atkinson, 297 U.S. 157, 159-60 (1936) (considerations of fairness to court and parties, and of public interest in bringing litigation to an end, demand that exceptions to contemporaneous objection requirement be limited to errors that are “obvious, or otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings”); U.S. v. Nunez, 146 F.3d 36, 39 (lst Cir. 1998) (plain error review necessary only for errors that seriously affect the fundamental fairness and integrity of the judicial proceedings); U.S. v. Tellier, 83 F.3d 578, 581 (2d Cir.1996) (plain error rule applied “sparingly. . . only to prevent a miscarriage of justice”); U.S. v. Navarro, 145 F.3d 580, 585 (3d Cir. 1998) (plain error review applied only to correct conviction of an innocent person and if error seriously affects fairness and integrity of judicial proceedings); U.S. v. Romer, 148 F.3d 359, 367 (4th Cir. 1998) (plain error rule applied only when “error seriously affects the fairness, integrity, or public reputation of judicial proceedings”), petition for cert. filed, 67 U.S.L.W. 3376 (U.S. Nov. 19, 1998) (No. 98-852); U.S. v. Hall, 152 F.3d 381, 403 (Sth Cir. 1998) (plain error rule applied only when error affects the integrity of judicial proceedings); U.S. v. Hemdon, 156 F.3d 629, 634 (6th Cir. 1998) (plain error rule applied only when trial was “so infected with error that the trial judge and prosecutor were derelict in tolerating it); U.S v. Humphrey, 154 F.3d 668, 670 (7th Cir. 1998) (plain error rule applied only to avert an actual miscarriage of justice); U.S. v. Comstock, 154 F.3d 845, 847 (8th Cir. 1998) (plain error rule applied only where error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”); U.S. v. de Cruz, 82 F.3d 856, 861-62 (9th Cir. 1996) (plain error is “rigorous standard” to be “used sparingly”); Nguyen v. Reynolds, 131 F.3d 1340, 1358 (lOth Cir.) (plain error rule used only if error so infects the trial so as to deprive defendant of fair trial or due process), cert. denied, 119 S. Ct. 128 (1998); U.S. v. Bonavia, 927 F.2d 565, 570 (llth Cir. 1991) (“plain error doctrine should be applied sparingly lest the contemporaneous objection rule, requiring timely objections to preserve issues for appeal, be swallowed by the plain error exception”); U.S. v. Turner, 119 F.3d 18, 19 (D.C. Cir. 1997) (plain error is one so obvious or substantial, or so serious and manifest that it affects the very integrity of trial process). 2631. “Deviation from a legal rule is ‘error’ unless the rule has been.waived.” Olano, 507 U.S. at 732-33. 2632. Id. Compare U.S. v. Sposito, 106 F.3d 1042, 1049 (lst Cir. 1997) (“plain” error must be so plain that trial court and prosecutor were derelict in not noticing it); U.S. v. Gore, 154 F.3d 34, 43 (2d Cir. 1998) (same); U.S. v. Griffith, 118 F.3d 318, 325 (Sth Cir. 1997) (same); U.S. v. Turman, 122 F.3d 1167, 1169 (9th Cir. 1997) (same); U.S. v. Mendez, 117 F.3d 480, 485 (llth Cir. 1997) (trial must be so infected with error so plain that trial judge and prosecutor were derelict in countenancing it, even absent defendant’s timely assistance in detecting it); and U.S. v. Whren, 111 F.3d 956, 960 (D.C. Cir.) (same), cert. denied, 118 S. Ct. 1059 (1998) with U.S. v. Stafford, 136 F.3d 1109 (7th Cir.) (no plain error where prosecutor allegedly struck juror on basis of religion because the constitutional status of peremptory challenges based on religion was unsettled and not plain), cert. denied, 119 S. Ct. 123 (1998). Factual disputes do not rise to the level of plain error. See U.S. v. Arce, 118 F.3d 335, 344 (Sth Cir.) (questions of fact that sentencing court could have resolved upon proper objections at sentencing can never constitute plain error), cert. denied, 118 S. Ct. 705 (1998); U.S. v. Pittman, 82 F.3d 152, ISS (7th Cir. 1996) (“plain” implies “error that can be identified as such without elaborate factual inquiry”); cf. U.S. v. Svacina, 137 F.3d 1179, 1187 (lOth Cir. 1998) (factual disputes over type of methamphetamines for sentencing purposes not brought to the attention of the court do not rise to level of plain error). “At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S. at 734. However, the Supreme Court explicitly did “not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Id. See U.S. v. Alli-Balogun, 72 F.3d 9, 11-12 (2d Cir. 1995) (per curiam) (no plain error where judge failed to instruct jury that conviction required unanimity on elements of charge, but did instruct jury that unanimous verdict required, because “Supreme Court and this court have not spoken on the subject, and the authority in other circuits is split”); U.S. v. Jones, 132 F.3d 232, 243-48 (Sth Cir.) (no plain error where there was no clearly established law at time of trial as to whether the substantive criminal statute under which defendant was sentenced provided the correct sentencing options), cert. granted, 119 S. Ct. 39 (1998); U.S. v. Barajas-Nunez, 91 F.3d 826, 832 (6th Cir. 1996) (no plain error where trial judge based decreased sentence of defendant, who claimed he re-entered country to help girlfriend obtain medical care, on “lesser harm” doctrine, in light of dearth of case law on question in similar contexts); U.S. v. Labansat, 94 F.3d 527, 531 (9th Cir. 1996) (no plain error where trial judge admitted evidence that defendant, accused of robbing bank, possessed drugs when stopped because law on subject unclear at time of trial), cert. denied, 117 S. Ct. 1013 (1997); U.S. v. Forte, 81 F.3d 215, 217 (D.C. Cir. 1996) (no plain error where trial court based possibly erroneous sentence on idea

that false statements at plea hearing preclude downward departure for acceptance of responsibility, because law on question unclear).

If the law was clear at trial, and adverse to defendant, but has changed by the appeal, plain error review is appropriate since a defendant should not have to object to correct law on the chance that the law will change by the appeal. See Johnson, 520 U.S. at 465 (where law at time of trial was settled and clearly contrary to law at time of appeal-it is enough that an error be ‘plain’ at time of appellate consideration); U.S. v. Malpeso, I IS F.3d 155, 165 (2d Cir.) (Court of Appeals will apply modified plain error standard to defendant’s challenge to instruction of using or carrying firearm during crime of violence, as Supreme Court case defining “use” was decided after trial; accordingly, plain error review applies, but burden is shifted to government to show that any error did not affect defendant’s substantial rights), cert. denied, 118 S. Ct. 2366 (1998); U.S. v. Kubosh, 120 F.3d 47 (Sth Cir. 1997) (per curiam) (plain error review not precluded when the conviction for using firearm during and in relation to drug trafficking offense was based on instructions that conformed to definition of “use” that Supreme Court subsequently rejected); U.S. v. Dedhia, 134 F.3d 802, 808 (6th Cir.) (plain error review applies when defendant fails to object at trial because at the time of trial the law was well settled and such an objection would have been futile), cert. denied, 118 S. Ct. 1844 (1998); U.S. v. McKinney, 120 F.3d 132, 133 (8th Cir. 1997) (plain error review necessary since Supreme Court definition of “use” of weapon in drug trafficking charge had changed since trial); U.S. v. Keys, 133 F.3d 1282, 1284 (9th Cir.) (plain error review necessary when law regarding jury instructions has changed since trial), cert. denied, ll9 S. Ct. 211 (1998); U.S. v. Veal, 153 F.3d 1233 (llth Cir. 1998) (plain error review necessary when purported error on appeal is result of subsequent Supreme Court decision and no objection was made at trial).

2633. Olano, 507 U.S. at 734-35. In Olano, the Court ruled that the erroneous presence in the jury room of alternates, who were instructed not to participate in the deliberations, was not plain error, because it did not affect substantial rights of the defendants. Id. at 737. To determine if a ruling affects the substantial rights of a defendant, a court must analyze the alleged error in the context of the entire record. See U.S. v. Bartelho, 129 F.3d 663, 673 (lst Cir.) (error in striking defendant’s direct testimony because he refused to answer cross examination questions evaluated in light of the record as a whole), cert. denied,ll9 S. Ct. 241 (1998); U.S. v. Salameh, 152 F.3d 88, 128 (2d Cir. 1998) (judicial bias must be examined in context of entire record); U.S. v. Cusimano, 148 F.3d 824, 830 n.4 (7th Cir. 1998) (error in jury instructions must be examined in context of entire record to determine whether mistake had a probable impact on jury’s findings); U.S. v. Oberle, 136 F.3d 1414, 1421 (lOth Cir.) (inappropriate remarks made by counsel must be reviewed in context of entire record), cert. denied, 119 S. Ct. 197 (1998).

2634. Olano, 507 U.S. at 734. But see U.S. v. Dean, 76 F.3d 329, 334 (lOth Cir. 1996) (“Our analysis centers not on the outcome of the trial, conviction or acquittal, but rather on the fairness and integrity of the proceedings themselves”; no plain error to admit prior convictions where defendant stipulated to them and used them in his trial strategy); U.S. v. Baird, 134 F3d 1276, 1283 (6th Cir. 1998) (application of plain error rule does not require that defendant actually be innocent).

2635. Olano, 507 U.S. at 734; see U.S. v. Nunez, 146 E3d 36, 39 (lst Cir. 1998) (defendant has the burden of showing error likely infected the jury’s decision); U.S. v. Gore, 154 F.3d 34, 42 (2d Cir. 1998) (same); U.S. v. West Indies Transp., Inc. 127 F.3d 299, 311 (3d Cir. 1997) (same); U.S. v. Hall, 152 F.3d 381, 404 (5th Cir. 1998) (same); U.S. v. Szabo, 147 F.3d 559, 561 (7th Cir. 1998) (same); U.S. v. Mathison, 157 F.3d 541, 546 (8th Cir. 1998) (same); U.S. v. Bell, 154 F.3d 1205, 1209 (lOth Cir. 1998) (same); U.S. v. Kramer, 73 F.3d 1067, 1074 n.17 (llth Cir. 1996) (burden of persuasion as to prejudice remains on defendant even where error arises from change in law between trial and appeal). But see U.S. v. Malpeso, 115 F.3d 155, 165 (2d Cir. 1997) (burden of persuasion shifted to government where error arises from change in law between trial and appeal).

Prejudice is not presumed. See U.S. v. Hill, 91 F.3d 1064, 1072 (8th Cir. 1996) (no plain error when judge did not sua sponte order new trial after inadvertently letting two alternate jurors deliberate for two hours because no prejudice shown and none presumed).

2636. See U.S. v. Torres, 901 F.2d 205, 228 (2d Cir. 1990) (errors of constitutional magnitude more freely noticed under plain error rule than less serious errors; instruction resulting in mandatory life imprisonment without parole plain error because instruction contained ex post facto violation); U.S. v. Rogers, 126 F.3d 655, 658 (Sth Cir. 1997) (when impermissible in court identification allowed, error will receive increased scrutiny); U.S. v. Wilson, 962 F.2d 621, 627 (7th Cir. 1992) (constitutional error may be reviewed for plain error where first raised in reply brief, notwithstanding general rule that court will not

notice issues first raised in reply brief); U.S. v. Santos-Pinon, 146 F.3d 734, 737 n.4 (9th Cir. 1998) (when Confrontation Clause rights implicated must review for plain error); U.S. v. Gerber, 24 F.3d 93, 95 (lOth Cir. 1994) (plain error rule applied less rigidly when court confronts potential constitutional error). Nonetheless, errors are not reversed solely because they affect constitutional rights. See U.S. v. Woodward, 149 F.3d 44 (Ist Cir. 1998) (no plain error when questionable reasonable doubt instruction that required conviction if jury firmly convinced of guilt, given emphasis placed on presumption of innocence); U.S. v. Palma-Ruedas, 121 F.3d 841, 858 (3d Cir. 1997) (no plain error when judge commented, “This is so bizarre,” to defense counsel’s repeated attempts to elicit hearsay from witness even though right to impartial trial was questioned, since the judge’s actions did not reach the point where it appeared to jury that court believed accused was guilty), cert. granted sub nom., 118 S. Ct. 2296 (1998); U.S. v. Griffith, 118 F.3d 318, 324-25 (Sth Cir. 1997) (no plain error although constitutional error of judge’s failure to specifically instruct the jury on the defendant’s Fifth Amendment privilege after prosecutor commented on defendant’s silence in his closing went uncorrected because the comment was isolated, jury was immediately instructed to disregard statement, and evidence against defendant was strong); U.S. v. Lilly, 37 F.3d 1222, 1225 (7th Cir. 1994) (constitutional errors are more freely noticed than nonconstitutional errors and reversed for plain error only to avert an actual miscarriage of justice); U.S. v. Enjady, 134 F.3d 1427, 1433 (lOth Cir.) (constitutional issues not raised before the district court are reviewed only for plain error), cert. denied, 119 S. Ct. 202 (1998). 2637. See U.S v. Sprei, 145 F.3d 528, 532 (2d Cir. 1998) (plain error when judge improperly relied on religious and socio-economic concerns in sentencing guidelines departure decision); U.S. v. Evans, 155 F.3d 245, 250-SI (3d Cir. 1998) (plain error when insurance of counsel’s fees was made a condition of supervised release); U.S. v. Jarvis, 7 F.3d 404, 412-13 (4th Cir. 1993) (plain error when defendant brought up on same charges twice); U.S. v. Saenz, 134 F.3d 697, 713-14 (Sth Cir. 1998) (plain error when judge improperly questioned witness because jury could confuse the role of judge and prosecutor); U.S. v. Sammons, 918 F.2d 592, 601 (6th Cir. 1990) (plain error when judge involved in plea negotiations); U.S. v. Madoch, 149 F.3d 596, 601 (7th Cir. 1998) (plain error when a suppression issue resolved without an evidentiary hearing to determine if defendant entitled to Miranda warnings); U.S. v. Moore, 136 F.3d 1343, 1345 (9th Cir. 1998) (plain error when defendant arrested and convicted under a statute that did not prohibit his conduct); U.S. v. Duran, 133 F.3d 1324, 1326 (lOth Cir. 1998) (plain error when judge failed to clarify repeated questions from jurors indicating they were clearly confused); U.S. v. Wiggins, 131 F.3d 1440, 1442 (llth Cir. 1997) (plain error when not determined that defendant was informed of and understood charges against him when pleading guilty); U.S. v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998) (plain error when government failed to present any evidence on an essential element of crime). 2638. Compare U.S. v. Paniagua-Ramos, 135 F.3d 193, 197 (Ist Cir. 1998) (plain error when Allen charge to jury contained insufficient language to inform jury of its right to disagree); U.S. v. Rossamando, 144 F.3d 197, 200-03 (2d Cir. 1998) (plain error when jury instruction on “good faith” defense in mail fraud conviction was sufficiently misleading and interfered with defense); U.S v. Russell, 134 F.3d 171, 180-81 (3d Cir. 1998) (plain error when jury instruction omitted requirement of jury unanimity on acts which comprised requisite series of violations); U.S. v. Estrada-Fernandez, ISO F.3d 491, 496-97 (Sth Cir. 1998) (plain error when jury not given simple assault instruction when defendant presented evidence that he did not use a dangerous weapon in assault); U.S. v. Baird, 134 F.3d 1276, 1281-83 (6th Cir. 1998) (plain error when jury instructions failed to include an element of the crime); U.S. v. Thomas, ISO F.3d 743, 744-45 (7th Cir. 1998) (plain error when instruction not given that distribution of drugs in repeated transactions was not itself conspiracy); U.S. v. Bordeaux, 121 F.3d 1187, 1189 (8th Cir. 1997) (plain error when instruction failed to include required element of force for an offense of abusive sexual contact by force); U.S. v. Burt, 143 F.3d 1215, 1217-18 (9th Cir. 1998) (plain error when jury instruction failed to clearly state government’s burden); U.S. v. Brown, 996 F.2d 1049, 1053 (lOth Cir. 1993) (plain error when trial court failed to instruct jury of inability to convict defendant on counts of both theft and possession of stolen goods) and U.S. v. Adkinson, 135 F.3d 1363, 1378 (1I th Cir. 1998) (plain error when jury instruction, in bank fraud prosecution, failed to include that jury must unanimously agree on acts constituting defendant’s scheme) with U.S. v. Santos, 131 F.3d 16, 19 (Ist Cir. 1997) (no plain error when jury instruction did not inform jury that it could give less weight to defendant’s confessions due to surrounding circumstances because it was unlikely jury would find confession involuntary); U.S. v. Walker, 142 F.3d 103, 111 (2d Cir.) (no plain error when jury instruction permitted jury to convict for murder without finding killing was a foreseeable act in furtherance of original narcotics conspiracy because instructions clear as a whole), cert. denied, 119 S. Ct. 219 (1998); U.S. v. Navarro, 145 F.3d 580, 585 (3d Cir. 1998) (no plain error when jury instruction failed to require specific unanimity with regards to mental state required to establish money laundering offense because did not seriously affect fairness and integrity of judicial proceedings); U.S. v. Wilkinson, 137 F.3d 214, 223-34 (4th Cir.) (no plain error when court failed to instruct jury that government had to prove interstate commerce nexus as an essential element of offense because of overwhelming evidence that element was established), cert. denied, 119 S. Ct. 172 (1998); U.S. v. Narviz-Guerra, 148 F.3d 530, 534-38 (Sth Cir. 1998) (no plain error when jury not

given specific instructions requiring unanimity in relation to laundering monetary instruments because jury instructed to carefully and cautiously weigh the testimony); U.S. v. Jefferson, 149 F.3d 444, 446 (6th Cir.) (no plain error when jury instructions did not require jury to make findings of effect on interstate commerce, an essential element of crime, because evidence of effect was overwhelming and uncontroverted), cert. denied, 119 S. Ct. 459 (1998); U.S. v. Lindsey, 123 F.3d 978, 985 (7th Cir. 1997) (no plain error when instruction did not include requirement of management in charge of conspiracy to distribute marijuana when sufficient evidence requirement was met); U.S. v. Moore, 149 F.3d 773, 778 n. 3 (8th Cir.) (no plain error when court refused to give requested jury instructions regarding multiple conspiracies given overwhelming evidence of one conspiracy), cert. denied, 119 S. Ct. 570 (1998); U.S. v. Klinger, 128 F.3d 705, 711-12 (9th Cir. 1998) (no plain error when jury instruction erroneously defined “knowingly” because state of law was unsettled at time of trial); U.S. v. West, 142 F.3d 1408, 1415 (llth Cir. 1998) (no plain error when jury instructions erroneously permitted jury to deliberate whether notebook was authored by co-conspirator because of overwhelming evidence of defendant’s guilt) and U.S. v. Gaviria, 116 F.3d 1498, 1509 (D.C. Cir. 1997) (no plain error when instruction is capable of holding two meanings, one legally correct and one legally incorrect when, taken in light of whole instruction, correct meaning was conveyed to the jury), cert. denied sub nom., 118 S. Ct. 865 (1998). See generally U.S. v. Griffin, 84 F.3d 912, 925 (7th Cir. 1996) (“Our plain error review is particularly light-handed in the context of jury instructions”; finding no plain error); U.S. v. Marin-Cuevas, 147 F.3d 889, 893 (9th Cir. 1998) (improper jury instructions will rarely justify a finding of plain error; “test is most stringent”).

2639. Compare U.S. v. Tellier, 83 F.3d 578, 581 (2d Cir. 1996) (plain error to admit witness’s hearsay testimony where not independently corroborated and only evidence of defendant’s participation in conspiracy); U.S. v. Merriweather, 78 F.3d 1070, 1077-78 (6th Cir. 1996) (plain error to admit taped evidence of other conspiracy to show motive, preparation, plan, knowledge, or absence of mistake when none of these at issue and government had other means of identifying defendant as speaker on tapes relating to conspiracy at issue in instant trial); U.S. v. Williams, 133 F.3d 1048, 1051-53 (7th Cir. 1998) (plain error to admit agent’s hearsay testimony relating confidential informant’s identification of defendant as suspect); U.S. v. Millard, 139 F.3d 1200, 1208 (8th Cir.) (plain error to admit evidence of defendant’s prior convictions and plea discussions in prosecution for conspiracy to distribute methamphetamines), cert. denied, 119 S. Ct. 376 (1998); U.S. v. Hardwell, 80 F.3d 1471, 1484 (lOth Cir. 1996) (plain error and violation of defendant’s Fifth Amendment right against self-incrimination to allow use of defendant’s financial affidavit and statements, submitted to show eligibility for appointed counsel, to prove money laundering); U.S. v. Sorondo, 845 F.2d 945, 948-49 (llth Cir. 1988) (plain error when trial court allowed witness to testify that informant’s testimony led to conviction of over 100 other defendants) and U.S. v. Jones, 67 F.3d 320, 324-25 (D.C. Cir. 1995) (plain error to allow nature of defendant’s prior felony convictions to be mentioned five times in trial for felon in possession of firearm and narcotics distribution offenses, because prior conviction for distribution “doomed” defendant’s “casual user” defense to instant distribution charge) with U.S. v. Houlihan, 92 F.3d 1271, 1297 (Ist Cir. 1996) (no plain error in admitting unredacted indictment of witness, alleging defendant aided witness in armed robbery, where defendant objected four days after admission and in interim “harp[ed] on” contents of indictment while questioning witness), cert. denied, 117 S. Ct. 963 (1997); U.S. v. Li, 115 F.3d 125, 129 (2d Cir. 1997) (no plain error when, in prosecution for food stamp fraud, court admitted testimony of federal employees as to food stamp orientation class attended by defendant’s daughter since employees were government’s first two witnesses, and court had no way to know at that early stage that prosecutors could not connect daughter’s knowledge with defendant); U.S. v. Tobin, 155 F.3d 636, 643 (3d Cir. 1998) (no plain error when answering machine messages that inculpated defendant admitted as evidence because other evidence showed the same thing); U.S. v. Williams, 81 F.3d 1321, 1326-27 (4th Cir. 1996) (no plain error to deny spousal privilege to defendant’s wife, asked if she signed checks, because handwriting analysis clearly showed defendant forged wife’s name on checks, and defendant confessed to FBI); U.S. v. Clements, 73 F.3d 1330, 1337 (Sth Cir. 1996) (no plain error to admit prior bad acts evidence where intrinsic to offense charged); U.S. v. Bray, 139 F.3d 1104, 1110-11 (6th Cir. 1998) (no plain error when forms that were not available to defendant admitted as evidence in embezzlement conviction because defendant did not show that timely disclosure would have made a difference); U.S. v. Doe, 149 F.3d 634, 638 (7th Cir.) (no plain error when expert witness’s drug profile testimony about Nigerian drug traffickers admitted as character evidence because it did not suggest defendant had “propensity” to import or distribute drugs), cert. denied, 119 S. Ct. 260 (1998); U.S. v. Logan, 121 F.3d 1172, 1177 (8th Cir. 1997) (no plain error when court admitted police officer’s impeachment testimony that the previous witness had told him the opposite of her testimony during previous interview when nearly all witness’s statements to officer were cumulative of other evidence); U.S. v. Labansat, 94 F.3d 527, 531 (9th Cir. 1996) (no plain error to admit evidence that accused bank robber possessed drugs when stopped, although pertinent to motive, because law on subject unclear), cert. denied, 117 S. Ct. 1013 (1997); U.S. v. Dean, 76 F.3d 329, 334 (lOth Cir. 1996) (no plain error to admit evidence of prior convictions where defendant stipulated to

admission and relied on them in his trial strategy); U.S. v. Mendez, 117 F.3d 480, 485 (llth Cir. 1997) (no plain error to admit cooperating witness’ testimony concerning planned jewelry store robbery by defendant charged with assaulting mail carrier with intent to steal mail and possession of stolen mail, considering the wealth of evidence against defendant) and U.S. v. Askew, 88 F.3d 1065, 1068 (D.C. Cir. 1996) (no plain error to allow expert’s testimony that as packaged, cocaine found on defendant likely intended for distribution; confidence in verdict not undermined because no specific reference to defendant’s intention and consistent with defendant’s claim that he stole the cocaine from distributors). 2640. Compare U.S. v. Christopher, 142 F.3d 46, 57 (Ist Cir.) (plain error to impose restitution based on losses that defendant was not charged with in indictment), cert. denied, 119 S. Ct. 617 (1998); U.S. v. Martinez-Rios, 143 F.3d 662, 676-77 (2d Cir. 1998) (plain error when arithmetic mistake resulted in a base level for sentencing that was one level too high); U.S. v. Knobloch, 131 F.3d 366, 367 (3d Cir. 1997) (plain error when possession of firearm counted as both an offense characteristic enhancement and as grounds for a consecutive sentence for carrying a firearm in a drug offense); U.S. v. Cole, 27 F.3d 996, 998-99 (4th Cir. 1994) (plain error when court did not adequately afford defendant right of allocution prior to announcing sentence and appeared to discourage defendant from speaking after sentence had been announced); U.S. v. Aderholt, 87 F.3d 740, 744 (Sth Cir. 1996) (plain error when trial judge considered conspiracy to murder when sentencing defendant where defendant charged only with conspiracy to commit mail fraud); U.S. v. Barajas-Nunez, 91 F.3d 826, 831-32 (6th Cir. 1996) (plain error when trial judge imposed shorter sentence based on mistaken belief that defendant’s limited English and lack of formal education amounted to diminished mental capacity); U.S. v. Szabo, 147 E3d 559, 561 (7th Cir. 1998) (plain error when defendant given an upward departure when he had five additional counts and Sentencing Guidelines require “more than five additional counts” for upward departure); U.S. v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (plain error when error in application of Sentencing Guidelines resulted in a sentence 17 months too long); U.S. v. Davis, 36 F.3d 1424, 1434-35 (9th Cir. 1994) (plain error when court imposed sentence based on erroneous finding of amount of crack cocaine distributed); U.S. v. Smith, 156 F.3d 1046, 1056 (lOth Cir. 1998) (plain error for court to order restitution in amount that exceeded loss caused by defendant’s conduct); U.S. v. Zapata, 139 F.3d 1355, 1359 (llth Cir. 1998) (plain error for court to round up drug quantity calculations resulting in determination of incorrect base offense level) and U.S. v. Kennedy, 133 F.3d 53, 61 (D.C. Cir.) (plain error when misapplication of Sentencing Guidelines resulted in life sentences for felon in possession of a firearm conviction instead of correct sentence), cert. denied, 119 S. Ct. 255 (1998), with U.S. v. Berrios, 132 F.3d 834, 840 (lst Cir. 1998) (no plain error for court to find that substance confiscated from drug conspiracy was crack cocaine rather than some other form of cocaine for sentencing purposes because defendant did not offer evidence that substance was something other than crack); U.S. v. Taylor, 92 F.3d 1313, 1335 (2d Cir. 1996) (no plain error for trial judge to base increased sentence for extortion on threat of bodily injury; “harm” to which extortion statute referred might be economic harm, so enhancement did not punish defendant twice), cert. denied, 117 S. Ct. 771 (1997); U.S. v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995) (no plain error when court failed to determine that defendant read presentencing report because error did not affect sentence); U.S. v. Milton, 147 F.3d 414, 418 (Sth Cir. 1998) (no plain error when court failed to give adequate notice that it would consider concealment of assets as basis for upward departure because court provided legal and factual issues for upward departure to defense counsel putting counsel on notice to discuss when and how upward departure permitted); U.S. v. Barajas-Nunez, 91 F.3d 826, 832 (6th Cir. 1996) (no plain error when trial judge applied “lesser harm” doctrine to decrease sentence of defendant who claimed he re-entered country to help girlfriend obtain medical care, in light of dearth of case law on question in similar contexts); U.S. v. Humphrey, 154 F.3d 668, 670-71 (7th Cir. 1998) (no plain error when court used confidential sentencing memorandum not disclosed to the parties); U.S. v. Jacobs, 136 F.3d 1187,1190-91 (8th Cir. 1998) (no plain error when court failed to require government to prove type of methamphetamine involved in offense at sentencing even though Sentencing Guidelines have two category scheme); U.S. v. Mathews, 120 F.3d 185, 187 (9th Cir. 1997) (no plain error in departing upward from Sentencing Guidelines on ground that explosive device created substantial risk of death or serious bodily injury to more than one person based on evidence that there were two people inside home destroyed by bomb); U.S. v. Yarnell, 129 F.3d 1127, 1137-38 (lOth Cir. 1997) (no plain error based on factual dispute over accuracy of presentence report in applicability of particular Sentencing Guideline); Reece v. U.S., 119 F.3d 1462, 1465 (llth Cir. 1997) (no plain error when court used D-methamphetamine guideline instead of L-methamphetamine guideline since issue was not raised on appeal) and U.S. v. Studevent, 116 F.3d 1559, 1564 (D.C. Cir. 1997) (no plain error when court failed to grant bank fraud defense sua sponte under Sentencing Guidelines for uncompleted attempts since defendant completed all acts he thought necessary to complete offense and pleaded guilty to fraud, not to attempted fraud). See APPELLATE REVIEW OF SENTENCES in this Part for further discussion of review of sentencing errors.

2641. Compare U.S. v. Roberts, 119 F.3d 1006, 1014 (Ist Cir. 1997) (plain error when prosecution commented on defendant’s failure to take the stand and told the jury defendant had the burden of proving

his innocence); U.S. v. Mitchell, 1 F.3d 235, 242 (4th Cir. 1993) (plain error when prosecutor encouraged jury to convict defendant based on conviction of defendant’s brother in same conspiracy); U.S. v. Flores-Chapa, 48 F.3d 156, 162 (Sth Cir. 1995) (plain error when prosecutor referred to excluded hearsay evidence in closing argument); U.S. v. DeGeratto, 876 F.2d 576, 586 (7th Cir. 1989) (plain error when government used “inflammatory” characterization of defendant as “loan shark” in closing argument) and Guam v. Veloria, 136 F.3d 648, 649 (9th Cir. 1998) (plain error when prosecutor elicited from police officer testimony concerning defendant’s post arrest silence) with U.S. v. Cruz, 156 F.3d 22, 30-31 (Ist Cir. 1998) (no plain error when prosecutor falsely claimed in opening statements that a gun was found in defendant’s car, shotgun and cocaine were found in defendant’s apartment, and defendant admitted owning ammunition, because defense counsel stated that remarks were not evidence); U.S. v. Perez, 144 F.3d 204, 211 (2d Cir. 1998) (no plain error when prosecutor commented that case disproved rumor that only the wealthy get good attorneys because defendant’s economic status was not stressed); U.S. v. Palma-Ruedas, 121 F.3d 841, 857 (3d Cir. 1997) (no plain error when government referred to defendant by his past names in closing because those names had already been submitted to jury through witness testimony), cert. denied, 118 S. Ct. 725 (1998); U.S. v. Crump, 120 F.3d 462, 467 (4th Cir. 1997) (no plain error since prosecutorial misconduct did not rise to level of affecting outcome); U.S. v. Munoz, lSO F.3d 401, 415 (Sth Cir. 1998) (no plain error when prosecutor asserted during closing argument that government witnesses were truthful because the defense had argued that the witnesses were liars); U.S. v. Farley, 2 F.3d 645, 655-56 (6th Cir. 1993) (no plain error when prosecutor said defendants unlike “lambs” because lambs have no pockets in which to put proceeds of crime because comments not so pronounced or persistent as to permeate entire trial); U.S. v. Minneman, 143 F.3d 274, 280 (7th Cir. 1998) (no plain error when prosecutor conjured up memories of outrageous acquittals, such as the cases of Rodney King, Menendez brothers, and O.J. Simpson, during closing arguments because far too elliptical); U.S. v. Grady, 997 F.2d 421, 425 (8th Cir. 1993) (no plain error when government questioned whether defense witness’s clothes signified gang affiliation because defendant not implicated in any way); U.S. v. Sarno, 73 F.3d 1470, 1497 (9th Cir. 1995) (no plain error when prosecutor thrice termed defendant’s statements “lies” because bank fraud case “turn[ed] upon the falsehood of certain representations,” and jury properly instructed that prosecutor’s comments not evidence); U.S. v. Durham, 139 F.3d 1325, 1331 (lOth Cir.) (no plain error when prosecutor unilaterally requested an alteration of transcript because improper action did not affect verdict), cert. denied, 119 S. Ct. 158 (1998) and U.S. v. Williams, 113 F.3d 243, 247 (D.C. Dir. 1997) (no plain error when prosecutor asked defendant, “So you’re willing to do things that are not quite on the up-and-up?” when question was not prejudicial).

2642. See U.S. v. Young, 470 U.S. 1, 17-IS (1985) (prosecutorial misconduct mitigated by jury’s understanding that it was response to defense counsel’s improper conduct); U.S. v. Whiting, 28 F.3d 1296, 1302-03 (Ist Cir. 1994) (no plain error when prosecutor pledged his character for inference of defendant’s guilt when pledge followed defense counsel’s remark that prosecutor suborned perjury); U.S. v. Magana, 118 F.3d 1173, 1196 (7th Cir. 1997) (no plain error under `invited response’ doctrine when prosecution made improper comments in response to inference created by defense counsel), cert. denied, 118 S. Ct. 1104 (1998).

Defense counsel’s tactical decision not to object at trial will usually preclude a finding of plain error. See U.S. v. Valencia-Lucena, 925 F.2d 506, 514 (Ist Cir. 1991) (no plain error when defense counsel explicitly rejected suggestion that judge give curative instruction; plain error rule should not be used to provide “second bite at the apple” for defendant whose deliberate trial strategy failed); U.S. v. Young, 140 F.3d 453, 456-57 (2d Cir. 1998) (no plain error when defense counsel made strategic decision not to object when jury asked to rehear entrapment instruction but reached a verdict before request was met); U.S. v. Leach, 918 F.2d 464, 467-68 (Sth Cir. 1990) (no plain error to admit evidence of co-conspirators’ convictions “when defendant instigates such admission, or attempts to exploit the evidence by frequent, pointed, and direct references to the co-conspirators’ guilty pleas”); U.S. v. Wynn, 845 F.2d 1439, 1443 (7th Cir. 1988) (no plain error to admit impeaching hearsay evidence when defense counsel made strategic decision not to object); U.S. v. Dunnaway, 88 F.3d 617, 618 (8th Cir. 1996) (no plain error to admit evidence of defendant’s membership in skinhead group; defendant waived right to plain error review by tactical decision not to object and to use evidence to claim persecution for membership in despised group); U.S. v. Dean, 76 F.3d 329, 334 (lOth Cir. 1996) (no plain error to admit evidence of prior convictions where defendant stipulated to admission, and trial strategy to compare past guilty pleas with instant not-guilty plea to create inference of innocence); U.S. v. Dingle, 114 F.3d 307, 312 (D.C. Cir.) (no plain error when court did not give jury instruction on lesser included offense since defense made tactical decision to argue innocence of defendant), cert. denied, 118 S. Ct. 324 (1997).

2643. See U.S. v. Williams, 81 F.3d 1321, 1326-27 (4th Cir. 1996) (no plain error in denial of spousal privilege to defendant’s wife when asked if she signed checks, where handwriting analysis clearly showed defendant forged wife’s name on checks, and defendant confessed to FBI); U.S. v. Hillsberg, 812 F.2d 328, 336 (7th Cir. 1987) (no plain error in reference to defendant as “killer” when defendant had already conceded that he killed victim); U.S. v. Lemon, 824 F.2d 763, 764 (9th Cir. 1987) (no plain error in

failure to offer specific unanimity instruction, given defendant’s admissions and general jury instructions).

2644. See U.S. v. Valencia-Lucena, 925 F.2d 506, 513 (Ist Cir. 1991) (no plain error when defendant chose not to request curative instruction for jurors who witnessed handcuffs being removed from defendant outside courtroom); U.S. v. Bounds, 985 F.2d 188, 192 (Sth Cir. 1993) (no plain error when defendant failed to request curative instruction for government’s reference to polygraph test); U.S. v. Copeland, 51 F.3d 611, 616 (6th Cir. 1995) (no plain error when defendant chose not to request curative instruction when government witness referred to defendant’s prior incarceration); U.S. v. Pedigo, 12 F.3d 618, 627 (7th Cir. 1993) (no plain error when defendant did not request curative instruction after prosecution congratulated witness for helping “convict all of the members of the conspiracy”); U.S. v. Thigpen, 4 F.3d 1573, 1579 (llth Cir. 1993) (no plain error when defendant did not request curative instruction after prosecutor’s remark that finding of not guilty by reason of insanity would mean defendant could be released from the hospital).

Curative instructions, if given, decrease the likelihood of a plain error finding. Compare U.S. v. Awon, 135 F.3d 96, 103 (Ist Cir. 1998) (no plain error when, after government asked defendant whether he agreed to pay co-defendant’s costs, the court presented jury with comprehensive curative instructions); U.S. v. Dukes, 139 F.3d 469, 476 (Sth Cir.) (no plain error when court failed to instruct jury concerning government’s payments to informants because court instructed jury to consider informant’s relationship with government), cert. denied, 119 S. Ct. 215 (1998); U.S. v. Chirinos, 112 F.3d 1089, 1098 (llth Cir. 1997) (no plain error when prosecutor mentioned evidence in opening he did not intend to introduce because judge cured error by instructing jury that opening was not evidence), cert. denied, 118 S. Ct. 701 (1998) and U.S. v. Williams-Davis, 90 F.3d 490, 507-08 (D.C. Cir. 1996) (no plain error when prosecutor’s opening statement referred to two murders not proved at trial, ordinarily severe misconduct, because mitigated by strong curative instructions that argument is not evidence, evidence against defendants overwhelming, time elapsed between beginning and end of trial, and defendants able to use variance between opening and proof as weapon against prosecution), cert. denied, 117 S. Ct. 986 (1997) with U.S. v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) (plain error not cured by trial judge’s instruction that jury is sole factfinder where judge had thoroughly compromised bench’s neutrality in eyes of jury); U.S. v. Griffith, 118 F.3d 318, 324 (Sth Cir. 1997) (plain error not cured when court reminded jury that defendant was presumed innocent and government had burden of proving him guilty beyond reasonable doubt, after prosecution commented on defendant’s failure to testify, since court failed to say defendant had Fifth Amendment right not to testify).

2645. See Johnson, 520 U.S. at 467 (no plain error in not submitting materiality to the jury when evidence against defendant was overwhelming); Young, 470 U.S. at 19 (no plain error from prosecutorial misconduct when evidence against defendant overwhelming); U.S. v. Messina, 131 F.3d 36, 39-40 (2d Cir. 1997) (no error when judge improperly challenged defendant’s claim that he was chairman of organization when evidence against defendant was overwhelming), cert. denied, 118 S. Ct. 1546 (1998); U.S. v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996) (no plain error in erroneous admission of opinion evidence when circumstantial evidence against defendant overwhelming, and prosecution did not rely on testimony in summation); U.S. v. Williams, 152 F.3d 294, 298-99 (4th Cir. 1998) (no plain error in erroneous jury instruction on “using or carrying” a firearm when defendant’s guilt not in doubt); U.S. v. Fletcher, 121 F.3d 187, 196 (5th Cir. 1997) (no plain error when prosecutor made statements in closing that had not been introduced into evidence when evidence against defendant was substantial), cert. denied, 118 S. Ct. 725 (1998); U.S. v. Reliford, 58 F.3d 247, 250-SI (6th Cir. 1995) (no plain error in prosecutor’s improper characterization of defendant’s testimony when evidence against defendant overwhelming); Lieberman v. Washington, 128 E3d 1085, 1095 (7th Cir. 1997) (no plain error when prosecutor improperly used defendant’s post arrest silence when abundance of evidence of defendant’s guilt); U.S. v. Washington, 992 E2d 785, 788 (8th Cir. 1993) (no plain error in prosecutor’s closing argument demonstration of how defendant could have removed firearm from coat when evidence against defendant overwhelming); U.S. v. Morfin, ISI F.3d 1149, IISI (9th Cir. 1998) (no plain error when erroneous jury instructions in methamphetamine conviction when evidence against defendant overwhelming); U.S. v. Schleibaum, 130 F.3d 947, 949 (lOth Cir.) (no plain error when erroneous judge failed to instruct on element of materiality in prosecution for making false statements when evidence of materiality overwhelming), cert. denied, 118 S. Ct. 364 (1997); U.S. v. West, 142 F.3d 1408, 1415 (llth Cir. 1998) (no plain error in erroneous jury instruction permitting jury to determine whether notebook authored by co-conspirator when evidence against defendant overwhelming); U.S. v. Williams-Davis, 90 F.3d 490, 507-08 (D.C. Cir. 1996) (no plain error in prosecutor’s opening statement reference to two murders not proved at trial; ordinarily severe misconduct mitigated by, inter alia, overwhelming evidence against defendants), cert. denied, 117 S. Ct. 986 (1997).

2646. U.S. v. Olano, 507 U.S. 725, 732 (1993); see U.S. v. Fernandez, 145 F.3d 59, 64 (Ist Cir. 1998) (exercising discretion to correct plain error when government improperly questioned defendant as to whether witnesses were lying where outcome of proceedings not affected); U.S. v. Williams, 152 F.3d 294, 300 (4th Cir. 1998) (exercising discretion not to correct plain error where overwhelming and uncontroverted evidence against defendant); U.S. v. Jobe, 101 F.3d 1046, 1062-63 (Sth Cir. 1996) (en banc) (exercising discretion not to correct plain error where overwhelming evidence against defendant), cert. denied, 118 S. Ct. 81 (1997); U.S. v. Humphrey, 154 F.3d 668, 670 (7th Cir. 1998) (exercising discretion not to correct plain error where error does not affect outcome of trial and not necessary to prevent miscarriage of justice); U.S. v. Burt, 143 F.3d 1215, 1219 (9th Cir. 1998) (exercising discretion not to correct plain error when jury given invalid entrapment instruction where yerwhelming evidence of defendant’s guilt); U.S. v. Schleibaum, 130 F.3d 947, 949 (lOth Cir. 1997) (exercising discretion not to correct plain error when element of materiality not submitted to jury because evidence of materiality overwhelming); U.S. v. Bendek, 146 F.3d 1326, 1328-29 (llth Cir. 1998) (exercising discretion not to correct plain error when alternate juror deliberated and returned verdict with jury where fairness, integrity, and public reputation of judicial proceedings not affected).

2647. Olano, 507 U.S. at 736 (quoting U.S. v. Atkinson, 297 U.S. 157, 160 (1936)); see U.S. v. Knobloch, 131 F.3d 366, 372 (3d Cir. 1997) (plain error when defendant both sentenced for carrying a firearm and sentence enhanced for possession of firearms because had affected integrity of judicial proceedings); U.S. v. Comstock, 154 F.3d 845, 849-50 (8th Cir. 1998) (plain error when defendant’s sentence 17 months too long due to misapplication of Sentencing Guidelines because seriously affected fairness of judicial proceedings).

2648. See 28 U.S.C. 2111 (1994) (“On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”); FED. R. CRIM. P. 52(a) (“any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded”).

2649. Chapman v. California, 386 U.S. 18, 22 (1967); see U.S. v. Tse, 135 F.3d 200, 209 (lst Cir. 1998) (error harmless if highly probable that it did not contribute to verdict); U.S. v. Damblu, 134 F.3d 490, 496 (2d Cir. 1998) (error harmless if unlikely it affected verdict); U.S. v. Walker, 148 F.3d 518, 526 (Sth Cir. 1998) (error harmless if it did not contribute to guilty verdict); U.S. v. Latouf, 132 F.3d 320, 328-29 (6th Cir.) (error harmless if it did not materially affect verdict), cert. denied, 118 S. Ct. 1542 (1998); U.S. v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (error harmless if it had little, if any, likelihood of having changed result of trial); U.S. v. Wiles, 102 F.3d 1043, 1068 (lOth Cir. 1996) (error harmless if it is trivial and has no effect on outcome of trial), cert. denied, 118 S. Ct. 363 (1997). 2650. Chapman, 386 U.S. at 23. In Chapman, the Court held that this formulation is entirely consistent with the standard adopted in Fahy v. Connecticut, 375 U.S. 85 (1963), that “[t]he question is whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.” Id. at 23 (quoting Fahy, 375 U.S. at 86-87). Compare U.S. v. Mulinelli-Navas, 111 F.3d 983, 992 (Ist Cir. 1997) (error not harmless beyond reasonable doubt when trial court did not allow defendant to introduce testimony to support his theory, violating his right to confrontation since government was relying on only one witness); U.S. v. Abdi, 142 F.3d 566, 570 (2d Cir. 1998) (error not harmless beyond reasonable doubt when defendant’s statement made outside presence of counsel admitted for impeachment purposes); U.S. v. Mitchell, 145 F.3d 572, 579 (3d Cir. 1998) (error not harmless beyond reasonable doubt when trial court admitted anonymous note linking defendant to robbery get away car); U.S. v. Fisher, 106 F.3d 622, 630 (5th Cir. 1997) (error not harmless beyond reasonable doubt when prosecution admitted prior state contempt conviction to impeach defendant since prior conviction was later invalidated on due process grounds and government used contempt judgment as integral part of its cross-examination of defendant); U.S. v. Cotnam, 88 F.3d 487, 500 (7th Cir. 1996) (error not harmless beyond reasonable doubt when trial court unsure of effect of prosecutor’s vouching for witnesses and comments on defendant’s silence, and lengthy jury deliberations did not indicate jury found evidence overwhelming); Clemmons v. Delo, 124

F.3d 944, 951 (8th Cir.) (error not harmless beyond reasonable doubt when state withheld exculpatory evidence from defendant since defendant’s theory of case was supported by the evidence), cert. denied, 118 S. Ct. 1548 (1998); U.S. v. Miller, Ill F.3d 747, 751 (lOth Cir. 1997) (error not harmless beyond reasonable doubt when court failed to instruct on venue when requested and government could not prove beyond reasonable doubt that jury’s verdict necessarily incorporated a finding of proper venue); U.S. v. Tenorio, 69 F.3d 1103, 1107 (llth Cir. 1995) (error not harmless beyond reasonable doubt when prosecutor told jury that when arrested, innocent person would “say something if he had an explanation” and government’s reliance on defendant’s silence pervaded whole trial) and U.S. v. Cunningham, 145 F.3d 1385, 1388 (D.C. Cir. 1998) (error not harmless beyond reasonable doubt when redacted 911 tapes violating Sixth Amendment submitted to jury) with U.S. v. Levy-Cordero, 156 F.3d 244, 247 (Ist Cir. 1998) (court’s failure to place before the jury evidence of defendant’s false or unreliable alibi harmless beyond a reasonable doubt); U.S. v. Hurtado, 47 F.3d 577, 582 (2d Cir. 1995) (constitutional error of compelling defendant to wear prison clothes to trial harmless beyond reasonable doubt when evidence of guilt overwhelming); U.S. v. Mackey, 114 F.3d 470, 474 (4th Cir. 1997) (error harmless beyond reasonable doubt when trial court allowed two jurors to remain after jury deliberations were suspended for the evening to perform research on evidence in order to summarize it for all jurors since there was no evidence that defendant’s right to jury trial was impaired); U.S. v. Walker, 148 F.3d 518, 526 (5th Cir. 1998) (erroneous admission of co-defendant’s out of court statements harmless beyond reasonable doubt); U.S. v. Parmelee, 42 F.3d 387, 393 (7th Cir. 1994) (constitutional error in jury instruction regarding mental state harmless beyond reasonable doubt when “no rational jury” could have found defendant did not act knowingly); Anderson v. Groose, 106 F.3d 242, 246 (8th Cir.) (error harmless beyond reasonable doubt when trial court excluded witness to defendant’s alibi since evidence against defendant was overwhelming and alibi witness would have testified only that he was with defendant on night of shooting, not at time of shooting), cert. denied, 117 S. Ct. 2488 (1997); U.S. v. Barragan-Davis, 133 F.3d 1287, 1289-90 (9th Cir. 1998) (trial court’s failure to hold conference to discuss response to jury note sent during deliberations harmless beyond reasonable doubt) and U.S. v. Gomez, 67 F.3d 1515, 1530 (lOth Cir. 1996) (erroneous answering of jury’s questions while defendant not present harmless beyond reasonable doubt when defendant showed no factual error in trial judge’s answers and trial judge made no inferences about facts). In Yates v. Evatt, 500 U.S. 391 (1991), the Court applied harmless error analysis to jury instructions which allowed the jury to apply unconstitutional presumptions on the issue of malice. Id. at 399-402. The Yates Court explained the Chapman analysis as a two-part test: (1) the court must ask what evidence the jury actually considered in reaching its verdict and (2) the court must “weigh the probative force of that evidence as against the probative force of the presumption standing alone.” Id. at 404.

2651. Kotteakos v. U.S., 328 U.S. 750, 765 (1946). Compare U.S. v. Tse, 135 F.3d 200, 209 (lst Cir. 1998) (erroneous admission of statements regarding defendant’s possible retaliation harmless because highly probable that error did not contribute to verdict); U.S. v. Damblu, 134 F.3d 490, 496 (2d Cir. 1998) (prosecutor’s improper questions implicating entrapment defense by asking witness to assume defendant sold crack on other occasions harmless because unlikely to have contributed to verdict); U.S. v. Sokolow, 91 F.3d 396, 407 (3d Cir.) (erroneous admission of adverse personal consequences testimony from victims of ERISA scam harmless because evidence overwhelming and highly probable that judgment not affected), cert. denied, 117 S. Ct. 960 (1997); U.S. v. Martinez, 136 F.3d 972, 977 (4th Cir.) (erroneous jury instructions on charge of using firearm in connection with crime of violence which failed to require active employment of firearm harmless when unlikely affected outcome of trial in light of overwhelming evidence of guilt), cert. denied, 119 S. Ct. 122 (1998); U.S. v. Hickman, 151 F.3d 446, 457-58 (Sth Cir. 1998) (erroneous admission of redacted confession of nontestifying codefendant harmless because did not prejudicially contribute to verdict); U.S. v. Latouf, 132 F.3d 320, 328-29 (6th Cir. 1997) (erroneous admission of evidence under “other bad acts rule” that defendant commented to two employees that she would pay them $5000 to burn her house down harmless because did not materially affect verdict); U.S. v. Scott, 145 F.3d 878, 887-89 (7th Cir. 1998) (failure to allow defendant to cross examine government witness concerning his drug habits harmless because no impact on overall verdict); U.S. v. Falls, 117 F.3d 1075, 1077, (8th Cir. 1997) (erroneous admission of evidence properly excluded by FED. R. EVID. 404 harmless because, based on evidence against defendant, error had no, or very slight, influence on verdict), cert. denied, 118 S. Ct. 1083 (1998); U.S. v. Barragan, 133 F.3d 1287, 1289-90 (9th Cir. 1998) (failure to. hold conference to discuss note sent from jury during deliberations harmless because guidance to jury unlikely to have changed verdict); U.S. v. Anaya, 117 F.3d 447, 448 (lOth Cir. 1997) (erroneous admission of defendant’s prior aggravated felony conviction harmless because evidence was overwhelming and error did not have substantial impact on jury’s verdict) and U.S. v. Layeni, 90 F.3d 514, 521 (D.C. Cir. 1996) (erroneous admission of irrelevant expert testimony harmless where highly probable that

judgment not affected), cert. denied, 117 S. Ct. 783 (1997) with U.S. v. Fulmer, 108 F.3d 1486, 1498 (Ist Cir. 1997) (erroneous admission of prolonged reference to Oklahoma bombing not harmless where it distracted jury from careful consideration of issues, was unduly prejudicial, and easily could have swayed jury); Hynes v. Coughlin, 79 F.3d 285, 293 (2d Cir. 1996) (erroneous admission of defendant’s prison disciplinary record in violation of FED. R. EvID. 404(b) not harmless where reviewing court had “no confidence whatever” admission did not substantially sway jury); Yohn v. Love, 76 F.3d 508, 524 (3d Cir. 1996) (erroneous presentation of taped evidence not harmless when reasonable to conclude mistakes substantially influenced jury); U.S. v. Madden, 38 F.3d 747, 753-54 (4th Cir. 1994) (prosecutor’s repeated reference to defendant’s drug use not harmless because court not sure reference did not substantially sway jury); U.S. v. Hope, 102 F.3d 114, 117 (Sth Cir. 1996) (erroneous introduction of tainted evidence not harmless when only physical evidence linking defendant to use of small firearm was illegally seized ammunition which could have substantially affected the verdict); U.S. v. Moses, 137 F.3d 894, 901-02 (6th Cir. 1998) (allowing testimony from child witness via closed circuit TV in violation of defendant’s Sixth Amendment rights not harmless because child provided only eyewitness testimony and may have changed outcome of the trial); U.S. v. Kraus, 137 F.3d 447, 448-58 (7th Cir. 1998) (judge’s improper participation in plea negotiations not harmless because may have caused defendant to accept longer sentence); U.S. v. Heidebur, 122 F.3d 577, 580 (8th Cir. 1997) (erroneous admission of testimony of defendant’s molestation of stepdaughter in case in which he was tried for knowingly possessing sexually explicit photographs of minor not harmless when testimony was virtually first matter of substance before jury, there were only three witnesses, and court could not say that jury was not substantially swayed by inadmissible evidence); U.S. v. Hay, 122 F.3d 1233, 1236 (9th Cir. 1997) (erroneous admission of hearsay statement not harmless when that statement was prosecution’s only direct evidence of defendant’s fraudulent mailing, was relied upon heavily in closing argument, and may have substantially swayed jury); U.S. v. Tome, 61 F.3d 1446, 1455 (lOth Cir. 1995) (erroneous admission of hearsay testimony not harmless because court in “grave doubt” as to whether trial outcome affected) and U.S. v. Utter, 97 F.3d 509, 515 (llth Cir. 1996) (erroneous admission of prejudicial evidence of a fire that was never proven to be arson not harmless when introduced against defendant charged with arson because case was extremely close, was built entirely on circumstantial evidence, and there was a real danger jury based decision on error). Some circuits have adopted a looser interpretation of the test announced in Kotteakos. See U.S. v. Neuroth, 809 F.2d 339, 342 (6th Cir. 1987) (error harmless unless more probable than not that error materially altered verdict); U.S. v. Arias-Villanueva, 998 F.2d 1491, 1502 (9th Cir. 1993) (same). Individually harmless errors may be harmful when considered cumulatively. Compare U.S. v. Fulmer, 108, F.3d 1486, 1498 (Ist Cir. 1997) (cumulative effect of improperly admitted hard evidence and testimony required new trial); U.S. v. Munoz, 150 F.3d 401, 418 (Sth Cir. 1998) (aggregation of non-reversible errors can yield a denial of a fair trial which calls for reversal); and U.S. v. Cotnam, 88 F.3d 487, 500-01 (7th Cir. 1996) (cumulative effect of prosecutor’s individually harmless vouching and comments on defendant’s silence required new trial) with U.S. v. Wihbey, 75 F3d 761, 773 (Ist Cir. 1996) (cumulative effect of prosecutor’s vouching and comments on defendant’s failure to testify harmless when outcome of trial not affected); U.S. v. Erickson, 75 F.3d 470, 481 (9th Cir. 1996) (cumulative effect of errors harmless when jury not likely swayed by harmless errors in jury instructions and prosecutor’s question); U.S. v. Oberle, 136 F.3d 1414, 1423 (lOth Cir. 1998) (combination of harmless errors involving admissions of defendant’s statements suggesting prior misconduct and improper prosecutorial argument did not rise to level of reversible error) and U.S. v. Adams, 74 F.3d 1093, 1099 (llth Cir. 1996) (cumulative effect of prosecutor’s personal comments and violation of court’s instruction not to refer to co-defendant when presenting certain testimony harmless when “properly admitted evidence sufficiently established guilt”).

For a discussion of harmless error standards in the context of habeas corpus relief, see HABEAS RELIEF FOR STATE PRISONERS and HABEAS RELIEF FOR FEDERAL PRISONERS in this Part. 2652. Cf U.S. v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996) (curative instructions, aimed at diluting prejudice caused by co-defendant’s throwing pitcher of water at jury, themselves error when given outside presence of defendant and counsel, but harmless because defendant not prejudiced). Compare U.S. v. Houlihan, 92 F.3d 1271, 1287 (Ist Cir. 1996) (trial judge’s detailed jury instructions and daily interrogations of jurors to ensure no contact with alternates rendered failure to dismiss alternate jurors before jury retired harmless), cert. denied, 117 S. Ct. 963 (1997); U.S. v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (curative jury instructions and likelihood of conviction rendered prosecutor’s impermissible comment on defendant’s silence harmless); U.S. v. Hill, 976 F.2d 132, 143-45 (3d Cir. 1992) (curative jury instruction rendered any error in admitting evidence of financial affairs of defendant’s girlfriend harmless); U.S. v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997) (curative jury instruction rendered prosecutor’s improper comment on his belief in truthfulness of government witness harmless); U.S. v. Rodriguez, 43 F.3d 117, 124 (Sth Cir. 1995) (jury instruction rendered prosecutor’s improper question concerning defendant’s “neighborliness” harmless); U.S. v. Odom, 13 F.3d 949, 957 (6th Cir. 1994) (jury instruction rendered error of allowing testimony that government witness had taken polygraph test harmless); U.S. v. Rivera, 6

F.3d 431, 442-43 (7th Cir. 1993) (striking of objectionable part of witness’s testimony and instruction to ignore testimony at end of trial rendered error harmless when jury had more than enough evidence to convict); U.S. v. Hester, 140 F.3d 753, 759 (8th Cir. 1998) (judge’s statement before jury that evidence sufficient to find preponderance of evidence that defendants were members of conspiracy harmless in view of curative instructions); U.S. v. de Cruz, 82 F.3d 856, 863 (9th Cir. 1996) (curative jury instruction that jury should consider only facts and evidence rendered prosecutor’s allegedly erroneous statements about unfairness of hiring illegal alien workers harmless); U.S. v. Cass, 127 F.3d 1218, 1225 (lOth Cir.) (cautionary instructions from trial court and strength of prosecution case rendered admission of hearsay testimony regarding defendant’s extramarital affairs harmless), cert. denied, 118 S. Ct. 1101 (1998); U.S. v. Acevedo, 141 F.3d 1421, 1424-27 (llth Cir. 1998) (trial court’s clean slate instructions, requiring jury to begin to deliberate anew after alternate jurors participating in deliberations were released rendered error harmless) and U.S. v. Sobamowo, 892 F.2d 90, 96 (D.C. Cir. 1989) (cautionary jury instruction rendered any error from district court’s failure to discharge alternate juror once jury began deliberations harmless) with U.S. v. Thomas, 998 F.2d 1202, 1206 (3d Cir. 1993) (error not harmless when court’s limiting instruction not sufficient to cure erroneous admission of co-conspirator’s guilty plea to conspiracy charge because jury could not fail to appreciate its significance); U.S. v. Ridlehuber, 11 F.3d 516, 523-24 (Sth Cir. 1993) (error not harmless when curative instruction limiting use of evidence of manufacture of drugs in prosecution for illegal weapons insufficient in light of prosecutor’s focus on drug-related evidence); U.S. v. Solivan, 937 F.2d 1146, 1156 (6th Cir. 1991) (error not harmless when court’s curative instruction to disregard prosecutor’s appeal to community conscience insufficient and came too late in drug prosecution); U.S. v. Merino-Balderrama, 146 F.3d 758, 763-64 (9th Cir. 1998) (error not harmless when court’s cautionary instructions insufficient to cure prejudice resulting from allowing jury to view pornographic films seized from defendant’s car when defendant willing to stipulate to his knowledge of pornographic nature of films) U.S. v. Rucker, 915 F.2d 1511, 1514 (llth Cir. 1990) (error not harmless when court’s instruction to disregard not sufficient to cure prejudice resulting from admission of defendant’s incriminating statement to former attorney in drug prosecution); and U.S. v. Tilghman, 134 F.3d 414, 417-21 (D.C. Cir. 1998) (error not harmless when jury instruction to disregard anything judge said about facts not sufficient to cure harm done by judge questioning defendant in manner reflecting on defendant’s credibility).

2653. Arizona v. Fulminante, 499 U.S. 279, 308-09 (1991). “Trial error” is “error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08. In contrast, structural defects affect “the framework within which the trial proceeds” and involve “basic protections, [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Id. at 307-09 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). But see LI.S. v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc) (there is not a rigid dichotomy between trial error and structural error). “Fulminante’s list does not mean that any violation of the same constitutional right is a structural defect regardless of whether the error is significant or trivial. To determine if a particular error is structural you must look not only at the right violated, but also at the particular nature, context and significance of the violation.” U.S. v. Gonzalez, 110 F.3d 936, 946 (2d Cir. 1997). There is no per se rule that errors not amenable to harmless error analysis must be noticed as plain error. See U.S. v. David, 83 F.3d 638, 647-48 (4th Cir. 1996) (finding plain error when materiality of false statement not submitted to jury for determination).

2654. See Review of Grand Jury Procedural Violations in GRAND JURY in Part II. 2655. See Amendments and Variances in INDICTMENTS in Part II. 2656. See Review of Misjoinder and Failure to Sever in JOINDER AND SEVERANCE in Part II. 2657. See Requirements for Entering a Plea in GUILTY PLEAS in Part II. 2658. See Milton v. Wainwright, 407 U.S. 371, 377-78 (1972) (harmless error in admitting evidence of confession obtained in violation of defendant’s right to counsel, because evidence of guilt, including three full confessions, overwhelming). See also Other Types of Misconduct in PROSECUTORIAL MISCONDUCT in Part III.

2659. See Fulminante, 499 U.S. at 296-303 (erroneous admission of coerced confession not harmless beyond reasonable doubt when jury’s assessment of additional admitted confession could have depended

heavily upon presence of initial coerced confession, admission of coerced confession led to admission of other prejudicial evidence, and unlikely that defendant would have been prosecuted at all, absent confessions).

2660. See Voir Dire in RIGHT TO JURY TRIAL in Part III. 2661. See INFLUENCES ON THE JURY in Part III.

2662. See Appellate Review in PROSECUTORIAL MISCONDUCT and Defendant’s Right to Refuse to Testify in FIFTH AMENDMENT AT TRIAL in Part III.

2663. See Confrontation Clause in SIXTH AMENDMENT AT TRIAL in Part III. 2664. See Confrontation Clause in SIXTH AMENDMENT AT TRIAL in Part III. 2665. See Compulsory Process in SIXTH AMENDMENT AT TRIAL in Part III. 2666. See Presumptions in PROOF ISSUES in Part III.

2667. See U.S. v. Thorne, 153 F.3d 130, 133-34 (4th Cir. 1998) (trial court’s failure to inform defendant of consequences of guilty plea subject to harmless error analysis). Guilty pleas are discussed in greater detail in GUILTY PLEAS in Part II.

2668. The Ninth and Tenth Circuits now hold that the absence of a defendant from the return of a death verdict is subject to harmless error analysis. Compare Rice v. Wood, 77 F.3d 1138, 1145 (9th Cir. 1996) (en banc) (absence of defendant harmless error where defendant had twice been convicted, strong showing of aggravating factors, and few mitigating factors) with Larsen v. Tansy, 911 F.2d 392, 396 (lOth Cir. 1990) (absence of defendant not harmless where defendant’s presence might have aided counsel and jury might have made inference from absence). 2669. See APPELLATE REVIEW OF SENTENCES in this Part. 2670. 499 U.S. 279 (1991).

2671. Id. at 310-11. Compare Satterwhite v. Texas, 486 U.S. 249, 256 (1988) (pervasive denial of counsel can never be considered harmless error); Strickland v. Washington, 466 U.S. 668, 692 (1984) (actual or constructive denial of counsel presumed to result in prejudice); Chapman v. California, 386 U.S. 18, 23 (1967) (right to counsel “so basic to a fair trial that [its] infraction can never be treated as harmless error”); U.S. v. Sanchez-Barreto, 93 F.3d 17, 22 (lst Cir. 1996) (failure to appoint replacement counsel when defendant, without waiving his right to counsel, brought credible allegations of malpractice was error immune from harmless error analysis), cert. denied sub nom., 117 S. Ct. 711 (1997); U.S. v. Moskovits, 86 F.3d 1303, 1308 n.9 (3d Cir. 1996) (“Because an unknowing and unintelligent waiver of counsel is a constitutional violation that pervades the entire proceeding, it can never be considered harmless.”), cert. denied, 117 S. Ct. (1997); U.S. v Fisher, 106 F.3d 622, 630 (Sth Cir. 1997) (standby counsel is no counsel at all and is not amenable to harmless error review); Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997) (defense counsel’s failure to advocate defendant’s cause and counsel’s repeated expression of hostility toward defendant not harmless and amounts to constructive denial of defendant’s right to counsel); Fern v. Gramley, 99 F.3d 255, 258 (7th Cir. 1996) (entirely inappropriate to apply harmless error analysis when petitioner was entirely without assistance of counsel on appeal); U.S. v. D’Amore, 56 F.3d 1202, 1204 (9th Cir. 1995) (denial of motion to substitute counsel reversible error absent some “compelling purpose”) and U.S. v. Taylor, 113 F.3d 1136, 1144 (lOth Cir. 1997) (violation of right to counsel, when court did not sufficiently establish that defendant knowingly and intelligently waived counsel, can never be treated as harmless error) with Curtis v. Duval, 124 F.3d 1, 6 (lst Cir. 1997) (short-term localized denial of counsel when judge ordered jury to return to courtroom and issued sua sponte supplemental instruction is subject to harmless error analysis); Pyles v. Johnson, 136 F.3d 986, 994 (Sth Cir.) (defense counsel’s absence from visit to crime scene implicated Sixth Amendment right to counsel but harmless error because does not rise to level of denial of counsel), cert. denied, 118 S. Ct. 2338 (1998); Abrams v. Barnett, 121 F.3d 1036, 1040 (7th Cir. 1996) (harmless error review appropriate when, instead of a prohibition on attorney consultation, conditions are simply less than ideal) and Vines v. U.S., 28 F.3d 1123, 1129 (I Ith Cir. 1994) (temporary absence of counsel from trial not complete denial of right to counsel and thus subject to harmless error analysis).

2672. Fulminante, 499 U.S. at 310-11; see Chapman, 386 U.S. at 23 n.8 (right to impartial judge not subject to harmless error review); Pontarelli v. Stone, 978 F.2d 773, 775 (lst Cir. 1992) (when trial judge

wrongfully fails to disqualify herself, remedy is for appellate court to reverse on merits and order trial before new judge); Cartalino v. Washinton, 122 F.3d 8, 9 (7th Cir. 1997) (right to be tried before an impartial judge is not subject to harmless error rule so it does not matter how powerful the case against defendant or whether judge’s bias manifested in rulings adverse to defendant); Hays v. Arave, 977 F.2d 475, 479 (9th Cir. 1992) (presence of judge who is not impartial structural defect requiring automatic reversal). But cf. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 867-70 (1988) (harmless error analysis applicable when judges overlook circumstances which should have disqualified them from hearing case). The responsibilities of the trial judge are discussed more fully in AUTHORITY OF THE TRIAL JUDGE in Part III.

2673. Fulminante, 499 U.S. at 310-11; see Waller v. Georgia, 467 U.S. 39, 49 (1984) (“A defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.”); U.S. v. Canady, 126 F.3d 352, 363-64 (2d Cir.) (defendant need not show prejudice when court fails to publicly announce verdict), cert. denied, 118 S. Ct. 1092 (1998); Davis v. Reynolds, 890 F.2d 1105, 1111-12 (lOth Cir. 1989) (defendant need not show prejudice when trial court failed to articulate specific, reviewable findings adequate to support closure of trial). But see U.S. v. DeLuca, 137 F.3d 24, 33 (Ist Cir.) (security screening procedures requiring spectators to submit written identification harmless because amounted to only a permissible partial closure), cert. denied, 119 S. Ct. 174 (1998). Although right to public trial errors require reversal, the appellate court need not grant a new trial. See Waller, 467 U.S. at 50 (remand for new suppression hearing when defendants’ public trial rights violated by total closure of first suppression hearing; new trial need be held only if new, public suppression hearing results in “suppression of material evidence not suppressed at the first trial, or in some other material change” in parties’ positions); U.S. v. Galloway, 937 F.2d 542, 546-47 (lOth Cir. 1991) (remand proper when trial court failed to make findings to support partial closure order and when granting new trial “would constitute a windfall”). The right to public trial is discussed in greater detail in Public Access in SIXTH AMENDMENT AT TRIAL in Part III.

2674. Fulminante, 499 U.S. at 310-11; see McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (denial of right to proceed pro se not subject to harmless error analysis but requires reversal per se); U.S. v. Betancourt-Arretuche, 933 F.2d 89, 94 (Ist Cir. 1991) (“denial of the constitutional right of selfrepresentation constitutes more than harmless error”); Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (denial of right to self-representation requires automatic reversal of criminal conviction; not subject to harmless error analysis); Myers v. Johnson, 76 F.3d 1330, 1339 (5th Cir. 1996) (per curiam) (“The violation of the constitutional right to self-representation on direct appeal, limited to the right to present pro se briefs and motions, is not amenable to harmless error analysis.”); U.S. v. Arlt, 41 F.3d 516, 524 (9th Cir. 1994) (denial of right to self-representation “per se prejudicial error” and requires automatic reversal of criminal conviction); U.S. v. McDermott, 64 F.3d 1448, 1454 (lOth Cir. 1995) (harmless error analysis does not apply to defendant’s exclusion, over his objections, from thirty bench conferences, violating right to self-representation). The right to proceed pro se is discussed in greater detail in Waiver of Counsel and Pro Se Representation in RIGHT TO COUNSEL in Part III.

2675. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (Constitution requires guilty verdict to be beyond reasonable doubt; error in reasonable doubt instruction structural error requiring reversal and defying harmless error analysis), cert. denied, 118 S. Ct. 1390 (1998). Compare Vargas v. Keane, 86 F.3d 1273, 1276 (2d Cir. 1996) (erroneous jury instruction allowing jury to convict on less than reasonable doubt not subject to harmless error analysis) and Nutter v. White, 39 F.3d 1154, 1157 (llth Cir. 1994) (same) with Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.) (not every unhelpful, unwise, or even erroneous formation of the concept of reasonable doubt renders instruction constitutionally deficient and immune from harmless error review), cert. denied, 118 S. Ct. 211 (1997). 2676. See Review of Grand Jury Procedural Violations in GRAND JURY in Part II. 2677. See Gray v. Mississippi, 481 U.S. 648, 660-64 (1987) (per se reversible error when court improperly excused juror who expressed uncertainty in ability to vote for death penalty; error cannot be harmless although prosecution had not used all peremptory challenges); Fuller v. Johnson, 114 F.3d 491, 500 (5th Cir.) (where court finds even one juror was improperly excluded defendant is entitled to a new sentencing and error can never be harmless), cert. denied, 118 S. Ct. 399 (1997). Challenges for cause are discussed in greater detail in Challenges for Cause in RIGHT TO JURY TRIAL in Part III.

2678. A discovery violation occurs under U.S. v. Bagley, 473 U.S. 667 (1985), when the government withholds material, favorable evidence and there is a reasonable probability that disclosure would have altered the result of the trial, necessarily precluding finding the error harmless beyond a reasonable doubt. Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995); see U.S. v. Lloyd, 71 F.3d 408, 411 (D.C. Cir. 1995) (new

trial motion based on evidence withheld in violation of Brady cannot be denied on basis new trial would not have produced different outcome; such violations not subject to harmless error analysis). But see U.S. v. Williams, 81 E3d 1434, 1438 (7th Cir. 1996) (withholding, in violation of Brady, information about prosecution’s favorable treatment of witness only justifies grant of new trial if jury substantially swayed by impropriety); Clemmons v. Delo, 124 F.3d 944, 947 (8th Cir. 1997) (withholding exculpatory evidence susceptible to harmless error review). See also DISCOVERY in Part II.

2679. The circuits are split as to whether a failure to submit an essential element of an offense to the jury is subject to harmless error analysis. In Johnson v. U.S., the Court refrained from deciding whether failing to submit the element of materiality to the jury constituted structural error and was thus removed from harmless error review. The Court did say, however, that “[it is by no means clear that the error here fits within this limited class of cases. . .[this] can just as easily be analogized to improperly instructing the jury on an element of the offense. . .an error which is subject to harmless error analysis.” Johnson v. U.S., 520 U.S. 461, 466-67 (1997). See Proving Elements Beyond a Reasonable Doubt in PROOF ISSUES in Part III.

2680. See U.S. v. Noushfar, 78 F.3d 1442, 1445 (9th Cir. 1996) (harmless error analysis not applicable where jury took into deliberations taped conversations never played at trial, violating rules of evidence and undermining fundamental tenet that conviction must rest on evidence presented and tested in front of judge, jury and defendant); Woods v. Dugger, 923 F.2d 1454, 1460 (llth Cir. 1991) (harmless error analysis inappropriate when defendant denied fair trial due to hostile environment in small rural community where defendant’s murder trial for killing prison guard took place).

2681. See U.S. v. Romano, 849 F.2d 812, 820 (3d Cir. 1988) (per se reversible error when court appointed counsel over defendant’s objection after revoking defendant’s right to pro se representation); U.S. v. D’Amore, 56 F.3d 1202, 1204 (9th Cir. 1995) (reversible error when court denied motion to substitute counsel absent “compelling purpose”). The right to counsel of choice is discussed more fully in Scope and Application in RIGHT TO COUNSEL in Part III.

2682. Compare U.S. v. Vebeliunas, 76 F.3d 1283, 1290 (2d Cir. 1996) (per se reversible error when indictment constructively amended); U.S. v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996) (per se reversible error when indictment constructively amended; distinguishing “variance” between indictment and evidence at trial, which would be subject to harmless error analysis); U.S. v. Doucet, 994 F.2d 169, 172 (Sth Cir. 1993) (per se reversible error when indictment constructively amended); U.S. v. Willoughby, 27 F.3d 263, 265-67 (7th Cir. 1994) (per se reversible error when government constructively amended charge, regardless of strength of proof of crime not charged); U.S. v. Pacheco, 912 F.2d 297, 304 (9th Cir. 1990) (per se reversible error when defendant convicted of offense not charged in indictment) and U.S. v. Weissman, 899 F.2d 1111, 1114 (llth Cir. 1990) (per se reversible error when jury instruction constructively amended grand jury indictment) with U.S. v. Long, 894 F.2d 101, 108 (Sth Cir. 1990) (harmless error when district court allowed addition to indictment as typographical correction, because defendants not specifically sentenced on that count of indictment). Amendments to indictments are discussed in greater detail in Amendments and Variances in INDICTMENTS in Part II. 2683. See U.S. v. Suarez, 155 F.3d 521, 525 (Sth Cir. 1998) (when court fails to address whether defendant understands nature of charges before accepting guilty plea, defendant’s substantial rights affected and automatic reversal required). But see U.S. v. DeWalt, 92 F.3d 1209, 1213-lS (D.C. Cir. 1996) (failure to determine whether defendant understands nature of charges may be harmless error; not harmless where indictment unclear and not likely to be understood).

2684. See U.S. v. Sanchez, 88 F.3d 1243, 1247 (D.C. Cir. 1996) (per se reversible error when trial judge failed to inform defendant of right to appeal sentence). But see Tress v. U.S., 87 F.3d 188, 189 (7th Cir. 1996) (not per se reversible error when judge failed to inform defendant of right to appeal). 2685. See U.S. v. Taylor, 92 F.3d 1313, 1325 (2d Cir. 1996) (per se reversible error when right to peremptory challenges denied or impaired), cert. denied, 117 S. Ct. 771 (1997); U.S. v. Ruuska, 883 F.2d 262, 268 (3d Cir. 1989) (per se reversible error to deny defendant’s right to exercise peremptory challenge against venire member seated to replace juror before jury sworn); Knox v. Collins, 928 F.2d 657, 661 (Sth Cir. 1991) (per se reversible error when trial court denied defendant’s right to exercise peremptory

challenges in capital murder prosecution); U.S. v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997) (per se reversible error to deny or impair right to peremptory challenges), cert. denied, 118 S. Ct. 2341 (1998); U.S. v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (same). Peremptory challenges are discussed in greater detail in Peremptory Challenges in RIGHT TO JURY TRIAL in Part III. 2686. See U.S. v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997) (per se reversible error for failure to determine if defendant voluntarily, knowingly, and intelligently waived jury trial); U.S. v. Medina, 90 F.3d 459, 464 llth Cir. 1996) (per se reversible rule when defendant is denied right to jury trial by directed verdict either in whole or in part).

2687. 18 U.S.C. 3742 (1994). The Senate Judiciary Committee intended that a sentence be subject to review primarily through the appellate process. See S. REP. No. 225, supra note 1, reprinted in 1984 U.S.C.C.A.N. at 3337 (discussing restrictions on appellate review of sentences to avoid unnecessary review). Nonetheless, a sentence may be reviewed and modified by the sentencing court in a narrow set of circumstances. See 18 U.S.C. 3582(c)(1)(A) (1994) (court, on motion of Director of Bureau of Prisons, may reduce sentence for extraordinary and compelling reasons including when the convict is seventy years or older, has served over thirty years in prison for a violent felony, and is no longer a danger to the community); FED. R. CRIM. P. 35(b) (“[C]ourt, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense.”); FED. R. CRIM. P. 35(c) (sentencing court, “acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error”); see also id. 3562 (court may modify or revoke probation pursuant to 18 U.S.C. 3564 or 3565); id. 3583(e) (court may terminate, extend, revoke, or modify term of supervised release if defendant’s conduct warrants and justice will be served). In addition, Rule 38 of the Federal Rules of Criminal Procedure allows a sentencing court to stay a sentence if an appeal is taken from the sentence or the conviction. FED. R. CRIM. P. 38 (court must allow stay for death sentence and may allow stay for sentences of imprisonment, fine, probation, criminal forfeiture, notice to victims, and restitution).

2688. FED. R. CRIM. P. 35(a). Although the sentencing court has substantial discretion upon remand, it may not correct a sentence in a vindictive manner. North Carolina v. Pearce, 395 U.S. 711, 725 (1969) (threefold increase of sentence after retrial and conviction struck down as vindictive and violative of due process).

2689. U.S. v. Chen, 127 F.3d 286, 289 (2d Cir. 1997) (defendant made a knowing and voluntary waiver of right to appeal sentence even though magistrate judge erroneously informed defendant that he had the right to appeal an “illegal sentence” even though waiver included right to appeal “any sentence”); U.S. v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (defendant made a knowing and voluntary waiver of right to appeal sentence when plea arrived at after extensive negotiations); U.S. v. Capaldi, 134 F.3d 307, 308 (5th Cir.) (defendant’s knowing and voluntary survives on remand), cert. denied, 118 S. Ct. 2073 (1998); U.S. v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996) (defendant made a knowing and voluntary waiver of right to appeal sentence when plea agreement detailed sentence calculations at length); U.S. v. Feichtinger, 105 F.3d 1188,1190 (7th Cir.) (defendant made a knowing and voluntary waiver of right to appeal sentence even though prosecution may not have fulfilled all of its requirements under plea bargain or if judge mistakenly applied Guidelines), cert. denied, 117 S. Ct. 2467 (1997); U.S. v. Brown, 148 F.3d 1003, 1012 (8th Cir. 1998) (defendant made a knowing and voluntary waiver of right to appeal sentence by agreeing to plea during colloquy with judge); U.S. v. Blitz, 151 F.3d 1002, 1005-06 (9th Cir. 1998) (defendant made a knowing and voluntary waiver of right to appeal sentence by agreeing to plea in writing); U.S. v. Hernandez, 134 F.3d 1435, 1437 (lOth Cir. 1998) (defendant’s knowing and voluntary waiver enforceable even though defendant claims plea was not supported by adequate consideration); U.S. v. Benitez-Zapata, 131 F.3d 1444, 1446 (llth Cir. 1997) (defendant made a knowing and voluntary waiver of right to appeal sentence even though judge erroneously informed defendant at the end of sentencing, not plea, hearing that he had the right to appeal sentence within ten days). For a complete discussion of waiver in plea agreements, see Consequences of a Plea in GUILTY PLEAS in Part II. 2690. 18 U.S.C. 3742(b), (c)(2) (1994). 2691. Id. 3742(a), (c)(1).

2692. Id. 3742(a)(1), (b)(1); U.S. v. Conway, 81 F.3d 15, 16 (Ist Cir. 1996) (grounds for appeal when court, in violation of Fifth Amendment, used immunity proffer in denying government’s downward departure motion); U.S. v. Campo, 140 F.3d 415, 418 (2d Cir. 1998) (court’s refusal to consider government’s downward departure motion on the merits was violation of law that required reversal); U.S. v. Graham, 72 F.3d 352, 359 n.8 (3d Cir. 1995) (appellate court could review defendant’s sentence because he alleged denial of constitutional right to notice of allegations raised at sentencing hearing); U.S. v. Ivester, 75 F.3d 182, 184 (4th Cir. 1996) (sentence appealable when defendant alleged that court misapplied and misinterpreted statute allowing departure if defendant provides all information about offense); U.S. v. Lively, 20 F.3d 193, 197 (6th Cir. 1994) (sentence appealable because defendant alleged that “court failed to consider certain directives contained in the [S]entencing [R]eform [A]ct of 1984”); U.S. v. Carter, 122 F.3d 469, 471 n.l (7th Cir. 1997) (circuit court has jurisdiction to hear sentencing appeal when defendant alleges that the district court “misconstrued the legal standards governing its authority to depart” from the Guidelines); U.S. v. Albers, 961 F.2d 710, 712 (8th Cir. 1992) (allegation of due process violation in sentencing permits appellate review); U.S. v. Parks, 89 F.3d 570, 572 n.2 (9th Cir. 1996) (same); U.S. v. Townsend, 33 F.3d 1230 (lOth Cir. 1994) (court had jurisdiction to hear appeal based on claim that district court violated FED. R. CRIM. P. 35(c) by correcting defendant’s sentence for clerical or technical error outside the proscribed seven day period); U.S. Manella, 86 F.3d 201, 203 (llth Cir. 1996) (allegation of misapplication of FED. R. CRIM. P. 35(b) enabled appellate review); see U.S. v. Sammoury, 74 F.3d 1341, 1343 (D.C. Cir. 1996) (“the term ‘law’ in `imposed in violation of law’ must refer to more than just the Guidelines” or the provisions allowing for review of misapplication of the Guidelines would be superfluous. See 18 U.S.C. 3742(a)(2), (e)(2) (1994).). 2693. Id. 3742(a)(2), (b)(2); U.S. v. Matiz, 14 F.3d 79, 80 n.1 (lst Cir. 1994) (district court decision reviewable when defendant alleged court imposed enhancement for obstruction of justice pursuant to Guidelines); U.S. v. Acosta, 963 F.2d 551, 557 (2d Cir. 1992) (district court decision reviewable when defendant alleged miscalculation of offense level when it included weight of creme liqueur in addition to cocaine); U.S. v. Sain, 141 F.3d 463, 476 (3d Cir.) (district court decision reviewable when defendant alleged court imposed sentence enhancement for use of special skill (engineering) in the commission of a crime), cert. denied, 119 S. Ct. 248 (1998); U.S. v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996) (district court decision reviewable when defendant alleged court disregarded one of defendant’s prior convictions and sentencing as non-career offender); U.S. v. Hill, 42 F.3d 914, 916 (5th Cir. 1995) (district court decision reviewable when defendant alleged court imposed improper consecutive sentence and used incorrect amount of loss by victims); U.S. v. Snyder, 913 F.2d 300, 302-03 (6th Cir. 1990) (district court decision reviewable when defendant alleged court miscomputed base offense level, enhancement, and deductions relating to gun and drug possession); U.S. v. Wallace, 114 F.3d 652, 656 (7th Cir. 1997) (district court decision reviewable when defendant alleged failure to consider reduction for assistance independent from acceptance of responsibility because based on erroneous application of Guidelines); U.S. v. McCarthy, 97 F.3d 1562, 1573-74 (8th Cir. 1996) (district court decision reviewable when defendant alleged miscalculation of weight of narcotics attributable to him in determining whether to depart downward), cert. denied, 117 S. Ct. 1011 (1997); U.S. v. George, 56 F.3d 1078, 1086 (9th Cir. 1995) (district court decision reviewable when defendant alleged court did not have authority to depart upward in determining defendant’s criminal history category), cert. denied, 118 S. Ct. llOO (1998); U.S. v. Hargus, 128 F.3d 1358, 1364 (lOth Cir. 1997) (district court decision reviewable when defendant alleged court miscalculated base level and amount of loss under the Guidelines), cert. denied, 118 S. Ct. 1526 (1998); U.S. v. Cruz, 106 F.3d 1553, 1556 (llth Cir. 1997) (district court decision reviewable when defendant alleged court misapplied “safety valve” provision of Guidelines); U.S. v. Olibrices, 979 F.2d 1557, 1559 (D.C. Cir. 1992) (district court decision reviewable when defendant alleged court incorrectly applied minimal/ minor participant reduction guideline). For a discussion of the application of the Guidelines, see SENTENCING GUIDELINES in Part IV.

2694. 18 U.S.C. 3742(a)(4), (b)(4) (1994). Compare U.S. v. Sweeney, 90 F.3d 55, 58 (2d Cir. 1996) (sentence of 18 months for violation of supervised release, for which no Guidelines applicable, plainly unreasonable because excessive reliance on non-binding Sentencing Commission policy statements) with U.S. v. Mathena, 23 F.3d 87, 89 (Sth Cir. 1994) (sentence of 36 months upon revocation of supervised release, for which no Guidelines applicable, not plainly unreasonable) and U.S. v. Hale, 107 F.3d 526, 529 (7th Cir. 1997) (sentence of 30 months for revocation of supervised release, for which no Guidelines applicable, not plainly unreasonable).

2695. 18 U.S.C. 3742(a)(3) (1994). A defendant may also appeal a condition of probation or supervised release limiting employment or requiring intermittent confinement that is more stringent than the maximum established in the Guidelines range. Id. If there is a plea agreement, the defendant may appeal a sentence only if the sentence imposed exceeds the sentence specified in the agreement. Id. 3742(c)(1); see U.S. v. Velez Carrero, 77 F.3d 11, 12 (lst Cir. 1996) (government’s failure to recommend no upward sentence adjustment in accordance with plea agreement grounds for appeal); U.S. v. Gottesman, 122 F.3d 150, 152 (2d Cir. 1997) (court-ordered restitution, in alleged violation of plea agreement which only required payment of back taxes, grounds for appeal); U.S. v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) (government’s violation of plea agreement not to take position on whether custodial sentence should be imposed grounds for appeal); U.S. v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996) (government’s failure to debrief defendant regarding offense as promised in plea agreement grounds for appeal); U.S. v. Goldfaden, 959 F.2d 1324, 1327 (Sth Cir. 1992) (government’s advocating of use of various guideline sanctions to court in violation of plea agreement to make no recommendation as to sentence grounds for appeal); U.S. v. Mitchell, 136 F.3d 1192, 1194 (8th Cir. 1998) (alleged violation of spirit of plea agreement by prosecutor’s introduction of victim impact statements when agreement required prosecutor to make motion for downward departure grounds for appeal); U.S. v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (government’s failure to affirmatively recommend sentence at low end of range as promised in plea agreement grounds for appeal); U.S. v. Brye, 146 F.3d 1207, 1212 (lOth Cir. 1998) (government’s breach of plea agreement “not to oppose” defendant’s motion for downward departure by making legal argument using facts of case grounds for appeal); U.S. v. Johnson, 132 F.3d 628, 630 (llth Cir.) (government advocating attribution of larger amount of marijuana than agreed in plea bargain grounds for appeal), cert. denied, 119 S. Ct. 264 (1998); U.S. v. Wolff, 127 F.3d 84, 86 (D.C. Cir. 1997) (government’s failure to argue for sentence reduction for acceptance of responsibility in accordance with plea agreement grounds for appeal), cert. denied 118 S. Ct. 2325 (1998).

An appellate court does not have jurisdiction to review the sentencing court’s refusal to depart from the applicable Guidelines range unless the sentencing court erred in concluding that it did not have the discretionary authority to depart. See U.S. v. Graham, 146 F.3d 6, 12 (Ist Cir. 1998) (no jurisdiction to review refusal to depart where sentencing court understood discretionary authority to depart); U.S. v. Felipe, 148 F.3d 101, 113 (2d Cir.) (same), cert. denied, 119 S. Ct. 246 (1998); U.S. v. Marin-Castaneda, 134 F.3d SSI, 554 (3d Cir.) (same), cert. denied , 118 S. Ct. 1855 (1998); U.S. v. Wilkinson, 137 F.3d 214, 230 (4th Cir.) (same), cert. denied, 119 S. Ct. 172 (1998); U.S. v. Brace, 145 F.3d 247, 263 (Sth Cir.) (same), cert. denied, 119 S. Ct. 246 (1998); U.S. v. Clements, 144 F.3d 981, 984 (6th Cir. 1998) (same); U.S. v. Newman, 148 F.3d 871, 878 (7th Cir. 1998) (same); U.S. v. Puckett, 147 F.3d 765, 772 (8th Cir. 1998) (same); U.S. v. Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998) (same); U.S. v. Brye, 146 F.3d 1207, 1213 (lOth Cir. 1998) (same); U.S. v. Sanchez-Valencia, 148 F.3d 1273, 1273 (llth Cir. 1998) (same); U.S. v. Soto, 132 F.3d 56, 60 (D.C. Cir. 1997) (same). If it cannot be determined whether the sentencing court exercised its discretion or wrongly believed it could not depart, the case will be remanded. U.S. v. Hernandez, 995 F.2d 307, 313-14 (Ist Cir. 1993) (remand required if appellate court cannot determine whether the district court exercised discretion or misunderstood its authority); U.S. v. Ritchey, 949 F.2d 61, 63 (2d Cir. 1991) (same); U.S. v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994) (same); U.S. v. Deigert, 916 F.2d 916, 919 (4th Cir. 1990) (same); U.S. v. Scott, 74 F3d 107, 112 (6th Cir. 1996) (same); U.S. v. Ramos-Oseguera, 120 F3d 1028, 1040-41 (9th Cir. 1997) (same), cert. denied, 118 S. Ct. 1094 (1998); U.S. v. Kummer, 89 E3d 1536, 1547 (llth Cir. 1996) (same); U.S. v. Lopez, 938 F.2d 1293, 1298 (D.C. Cir. 1991) (same). Nonetheless, the Tenth Circuit held that it would “no longer [be] willing to assume that a judge’s ambiguous language means that the judge erroneously concluded that he or she lacked authority to downward depart. . . . Accordingly, unless the judge’s language unambiguously states that the judge does not believe he has authority to downward depart, we will not review his decision. Absent such a misunderstanding on the sentencing judge’s part, illegality, or an incorrect application of the Guidelines, we will not review the denial of a downward departure.”

U.S. v. Rodriguez, 30 F.3d 1318, 1319 (lOth Cir. 1994); accord U.S. v. Cureton, 89 F.3d 469, 474 (7th Cir. 1996) (where no indication in record that sentencing court believed it had no authority, appellate court has no jurisdiction to review discretionary refusal to depart).

Circuit courts have also held that the extent of a downward departure may not be appealed by the defendant. See U.S. v. Webster, 54 F.3d 1, 4 (Ist Cir. 1995); U.S. v. Tocco, 135 F.3d 116, 131 (2d Cir.), cert. denied, 118 S. Ct. 1581 (1998); U.S. v. Khalil, 132 F.3d 897, 898 (3d Cir. 1998); U.S. v. Hill, 70 F.3d 321, 324 (4th Cir. 1995); U.S. v. Alvarez, 51 F.3d 36, 39 (Sth Cir. 1995); U.S. v. Gregory, 932 F.2d 1167, 1168 (6th Cir. 1991); U.S. v. Senn, 102 .3d 327, 331 (7th Cir. 1996); U.S. v. Puckett, 147 F.3d 765, 772 (8th Cir. 1998); U.S. v. Eureka Laboratories, Inc., 103 E3d 908, 911 (9th Cir. 1996); U.S. v. Bromberg, 933 F.2d 895, 896 (lOth Cir. 1991); U.S. v. Wright, 895 F2d 718,721-22 (llth Cir. 1990); U.S. v. Hazel, 928 F.2d 420, 424 (D.C. Cir. 1991).

2696. 18 U.S.C. 3742(b) (1994). Personal approval of the Attorney General, Solicitor General, or a Deputy Solicitor General is required to ensure that the government does not routinely file appeals for every sentence below the appropriate Guidelines range. See S. REP. No. 225, supra note 1, at 154, reprinted in 1984 U.S.C.C.A.N. at 3337; see also U.S. v. Gonzalez, 970 F.2d 1095, 1101-02 (2d Cir. 1992) ( 3742(b) is not jurisdictional; “Congress enacted the personal approval requirement to assure that Government appeals are not routinely brought whenever a sentence is imposed below the indicated guideline range”); U.S. v. Gurgiolo, 894 F.2d 56, 57 n.l (3d Cir. 1990) (failure to document personal approval is akin to miscaptioning pleadings and does not deprive court of jurisdiction); U.S. v. Smith, 910 F.2d 326, 327 (6th Cir. 1990) (per curiam) ( 3742(b) is not jurisdictional); U.S. v. Hendrickson, 22 F.3d 170, 171 n.l (7th Cir. 1994) ( 3742(b) is not jurisdictional); cf. Smith, 910 F.2d at 328 (proof of approval by Attorney General or Solicitor General must be dated no later than day notice of appeal filed and provided no later than filing of appellate brief).

2697. 18 U.S.C. 3742(b)(3) (1994); see U.S. v. Wogan, 938 F.2d 1446, 1448 (Ist Cir. 1991) (government appeal proper when trial court erroneously departed downward to equalize sentence with co-defendant); U.S. v. Shoupe, 929 F.2d 116, 119-20 (3d Cir. 1991) (government appeal proper when trial court erroneously departed downward on basis of defendant’s youth and immaturity at time of offense); U.S. v. Goossens, 84 F.3d 697, 700-01 (4th Cir. 1996) (government appeal proper when trial court erroneously departed downward in consideration of unestablished diminished mental incapacity); U.S. v. Besler, 86 F.3d 745, 748 (7th Cir. 1996) (government appeal proper when trial court erroneously departed downward for defendant’s voluntary disclosure absent necessary finding of likelihood of discovery absent disclosure); U.S. v. Prestemon, 929 F.2d 1275, 1277 (8th Cir. 1991) (government appeal proper when trial court erroneously departed downward on basis of defendant’s race and family situation). The Senate Judiciary Committee explained that government appeals of unreasonably lenient sentences are necessary to reduce unwarranted sentencing disparity. S. REP. No. 225, supra note 1, at 151, reprinted in 1984 U.S.C.C.A.N. at 3334. The Committee asserted that such appeals would not violate the Double Jeopardy Clause, relying on a Supreme Court decision that upheld the imposition of increased sentences upon appeal as provided in the Organized Crime Control Act of 1970, 18 U.S.C. 3576 (1982). S. REP. No. 225, supra note 1, at 151-52, reprinted in 1984 U.S.C.C.A.N. at 3334-35 (citing U.S. v. DiFrancesco, 449 U.S. 117, 136-37 (1980)). The government’s ability to appeal is discussed generally in APPEALS in this Part and in DOUBLE JEOPARDY in Part II. 2698. 518 U.S. 81 (1996).

2699. Id. at 98 (“a district court’s decision to depart from the Guidelines . . . will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court”). The abuse of discretion standard adopted by the Court, however, does not require deference to a sentencing court in questions of law, as a mistake of law is per se an abuse of discretion. Id. at 100; cf. Cooter & Gell v. Harmarx Corp., 496 U.S. 384 (1990) (abuse of discretion standard requires deference to trial court’s analysis of facts and no deference to trial court’s mistake of law). Thus, the unitary “abuse of discretion” standard incorporates both the due deference to the trial court in questions of fact and no deference in questions of law. See U.S. v. Twitty, 104 F.3d 1, 2-3 (lst Cir. 1997) (court did not abuse discretion in upward departure based on large number of guns used and endangerment of public safety because not adequately considered in guideline); U.S. v. Malpeso, 115 F.3d 155, 170 (2d Cir. 1997) (court did not abuse discretion in upward departure based on defendant’s injuring innocent bystander because not adequately considered in guideline), cert. denied 118 S. Ct. 2366 (1998); U.S. v. Baird, 109 F.3d 856, 871 (3d Cir.) (court did not abuse discretion in upward departure based on defendant’s disruption of government functions to an exceptional degree because not adequately considered in guideline), cert. denied, 118 S. Ct. 243 (1997); U.S. v. Barber, 119 F.3d 276, 283 (4th Cir.) (court did not abuse discretion in upward departure based on defendant’s robbery of victim in course of second-degree murder because not adequately considered in guideline), cert. denied, 118 S. Ct. 457 (1997); U.S. v. Route, 104 F.3d 59, 64 (Sth Cir.) (court did not abuse discretion in upward departure based on defendant’s criminal history because guideline did not adequately reflect seriousness of past conduct nor likelihood for recidivism), cert. denied 117 S. Ct. 2491 (1997); U.S. v. Wright, 119 F.3d 390, 393 (6th Cir. 1997) (court did not abuse discretion in four-level upward departure based on defendant’s torturing victim because not adequately considered in guideline); U.S. v. Porter, 145 F.3d 897, 905 (7th Cir. 1998) (court did not abuse discretion in upward departure based on defendant’s involvement of minor in commission of mail fraud because not adequately considered in guideline); U.S. v. Johnson, 144 F.3d 1149, 1150 (8th Cir. 1998) (court did not abuse discretion in upward departure based on cruel and unusual way in which defendant sexually assaulted victim because not adequately considered in guideline); U.S. v. Cuddy, 147 F.3d 1111, 1116 (9th Cir. 1998) (court did not abuse discretion in upward departure based on defendant’s threats to family

member of extortion victim because not adequately considered in guideline); U.S. v. Smith, 133 F.3d 737, 751 (lOth Cir.) (court did not abuse discretion in upward departure based on defendant’s unusually predatory fraudulent actions against vulnerable victims because not adequately considered in guideline), cert. denied, 118 S. Ct. 2306 (1998); U.S. v. Garrison, 133 F.3d 831, 850 (llth Cir. 1998) (court did not abuse discretion in upward departure based on defendant’s substantial personal profits in Medicare fraud scheme because not adequately considered in guideline).

The sentencing court’s consideration of a factor adequately considered in the Guidelines or precluded from consideration by the Sentencing Commission, however, is a per se abuse of discretion and is afforded no deference. Koon, 518 U.S. at 100; see U.S. v. Jackson, 30 F.3d 199, 202-04 (Ist Cir. 1994) (court abused discretion in downward departure based on defendant’s age in relation to length of sentence contrary to Guidelines); U.S. v. Tejeda, 146 F.3d 84, 98 (2d Cir. 1998) (court abused discretion in downward departure based on small quantity of controlled substance because adequately considered by Guidelines); U.S. v. Woods, 24 F.3d 514, 517-18 (3d Cir. 1994) (court abused discretion in upward departure based on defendant’s lies to investigators because adequately considered in Guidelines); U.S. v. Perkins, 108 F.3d 512, 515-16 (4th Cir. 1997) (court abused discretion in downward departure based on racial disparity in sentencing among co-defendants contrary to Guidelines); U.S. v. Arce, 118 F.3d 335, 344 (Sth Cir. 1997) (court abused discretion in basing part of upward departure on manufacturing of weapons because adequately considered in Guidelines), cert. denied, 118 S. Ct. 705 (1998); U.S. v. Crouse, 145 F.3d 786, 790 (6th Cir. 1998) (court abused discretion in downward departure based on defendant’s loss of business reputation because adequately considered in Guidelines); U.S v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) (court abused discretion in downward departure based on defendant’s diminished capacity in violent crime of bank robbery because guideline only applies to non-violent offenses); U.S. v. Rios-Favela, 118 F.3d 653, 656 (9th Cir. 1997) (court abused discretion in downward departure based on alien defendant’s previous narcotics offense because adequately considered by Guidelines), cert. denied, 118 S. Ct. 730 (1998); U.S. v. Meacham, 115 F.3d 1488, 1497 (lOth Cir. 1997) (court abused discretion in downward departure based on lack of physical injury in abusive sexual contact case because adequately considered in Guidelines); U.S. v. Bristow, llO F.3d 754, 758 (llth Cir. 1997) (court abused discretion in downward departure based on defendant’s economic hardships contrary to Guidelines), cert. denied, 118 S. Ct. 731 (1998); U.S. v. Washington, 106 F.3d 983,1017-18 (D.C. Cir.) (court abused discretion in downward departure based on fact that defendant’s participation in drug activity was no more than four hours because contrary to Guidelines), cert. denied, 118 S. Ct. 446 (1997). 2700. Koon, 518 U.S. at 98. The sentencing court’s assessment of facts as sufficiently unusual, in comparison with other Guidelines cases, so as to warrant departure must be given due deference by the appellate court. Id.

2701. 18 U.S.C. 3742(f) (1994). But see U.S. v. Achiekwelu, 112 F.3d 747, 758 (4th Cir.) (remand not required because sentence was independently supported on either of two possible grounds, one of which was invalid), cert. denied, 118 S. Ct. 250 (1997); U.S. v. Lewis, 92 F.3d 1371, 1379-80 (Sth Cir. 1996) (remand not required where sentences recieved by defendants under similar state law did not exceed maximum that could have been imposed under federal law), vacated on other grounds, 118 S. Ct. 1135 (1998); U.S. v. McKinney, 98 F.3d 974, 981-82 (7th Cir.) (remand not required when sentencing court did not make “explicit” findings as to reason for upward departure), cert. denied, 117 S. Ct. 1119 (1997); U.S. v. Yates, 22 F.3d 981, 988 (lOth Cir. 1994) (remand not automatically required to rectify incorrect Guidelines application when court relied on invalid factor); U.S. v. Brazel, 102 F.3d 1120, 1161 (llth Cir.) (remand not required to correct sentencing court’s improper acceptance of speculative drug quantity when reliable evidence still established quantity of drugs necessary for imposed sentence), cert. denied, 118 S. Ct. 79 (1997).

In determining whether remand is necessary, the appellate court is directed to give due regard to the opportunity of the district court to judge the credibility of witnesses and to accept factual findings of the district court unless they are clearly erroneous. 18 U.S.C. 3742(e) (1994); see U.S. v. Nunez, 146 F.3d 36, 40 (Ist Cir. 1998) (district court’s factual decisions reviewed under clearly erroneous standard); U.S. v. Ventura, 146 F.3d 91, 96 (2d Cir.) (same), cert. denied, 119 S. Ct. 172 (1998); U.S. v. Dent, 149 F.3d 180, 183 (3d Cir. 1998) (same); LI.S. v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998) (same); U.S. v. Milton, 147 F.3d 414, 417 (5th Cir. 1998) (same); U.S. v. Kincaide, 145 F.3d 771, 784 (6th Cir. 1998) (same); U.S. v. Griffin, 148 F.3d 850, 855 (7th Cir. 1998) (same); U.S. v. Patterson, 148 F.3d 1013, 1016 (8th Cir. 1998) (same); U.S. v. Lopez-Sandoval, 146 F.3d 712, 714 (9th Cir. 1998) (same); U.S. v. Johnston, 146 F.3d 785, 795 (lOth Cir. 1998) (same); U.S. v. Trujillo, 146 F.3d 838, 847 (llth Cir. 1998) (same); U.S. v. Leandre, 132 F.3d 796, 800 (D.C. Cir.) (same), cert. denied, 118 S. Ct. 1823 (1998).

2702. 18 U.S.C. 3742(e)(1) (1994). 2703. Id. 3742(e)(2).

2704. Id. 3742(e)(3); see U.S. v. Weaver, 920 F.2d 1570, 1573 (llth Cir. 1991) (“[D]irection and degree of departure must, on appeal, be measured by a standard of reasonableness” (quoting U.S. v. Diaz-Villafane, 874 F.2d 43, 49 (lst Cir. 1989)). Compare U.S. v. Mora, 22 F.3d 409, 414 (2d Cir. 1994) (life term of supervised release, as opposed to five-year maximum term, unreasonable for drug offender if based solely on defendant’s recidivism); U.S. v. MacLeod, 80 F.3d 860, 869 (3d Cir. 1996) (235-month sentence, as opposed to 151-month sentence, for five additional offenses of child pornography, unreasonable as under Guidelines additional punishment should decline as number of offenses increases); U.S. v. Crouse, 145 F.3d 786, 792 (6th Cir. 1998) (sentence of home confinement, a nine-level reduction, unreasonable for defendant convicted of selling adulterated orange juice); U.S. v. Horton, 98 F.3d 313, 318 (7th Cir. 1996) (upward departure of eight levels unreasonable because defendant’s conduct did not evince intent to carry out threat to bomb government building and fact that similar crime had been committed day before could not influence reasonableness of sentence); U.S. v. Nagra, 147 F.3d 875, 886 (9th Cir. 1998) (upward departure of six levels unreasonable for immigration-related fraud because conspiracy involved 180 aliens, which did not meet burden of being “substantially more” than 100 aliens, as provided by guideline); U.S. v. Arutunoff, 1 F.3d 1112, 1120-21 (lOth Cir. 1993) (sentencing at offense level 10, as opposed to level 20, under Guidelines, unreasonable for securities fraud conspiracy in light of district court’s grounds for departure) and U.S. v. Costales, 5 F.3d 480, 486 (llth Cir. 1993) (downward departure unreasonable for defendant convicted of receiving child pornography in mail because it undermined jury’s verdict) with U.S. v. Twitty, 104 F.3d 1, 2-3 (Ist Cir. 1997) (97-month sentence not unreasonable for using large number of guns and endangering public safety); U.S. v. Ashley, 141 F.3d 63, 70 (2d Cir. 1998) (upward departure of four levels for defendant’s high likelihood of recidivism not unreasonable), cert. denied, 119 S. Ct. 203 (1998); U.S. v. Baird, 109 F.3d 856, 872 (3d Cir.) (upward departure of four levels not unreasonable for conduct resulting in harm to government that was infinitely worse than analogous guideline), cert. denied, 118 S. Ct. 243 (1997); U.S. v. Walker, 29 F.3d 908, 913-14 (4th Cir. 1994) (upward departure of eight levels for defendant’s undervaluing of personal property not unreasonable because relevant conduct); U.S. v. Kay, 83 F.3d 98, 103 (5th Cir. 1996) (upward departure of seven levels not unreasonable in light of intricacy of defendant’s scheme and repetitive abuse of trusts); U.S. v. Pittman, 55 F.3d 1136, 1140 (6th Cir. 1995) (upward departure for solicitation to commit murder not unreasonable in light of fact that offense involved two victims); U.S. v. Paredes, 87 F.3d 921, 927 (7th Cir. 1996) (upward departure of two levels for impersonating an FBI official not unreasonable in light of significant risk of recidivism); U.S. v. McCarthy, 97 F.3d 1562, 1581 (8th Cir. 1996) (upward departure of nine months not unreasonable for investing in drug activity and laundering money through charitable donations), cert. denied, 117 S. Ct. 1284 (1997); U.S. v. Sablan, 114 F.3d 913, 919 (9th Cir. 1997) (upward departure not unreasonable for maliciously destroying post office property), cert. denied, 118 S. Ct. 851 (1998); U.S. v. Smith, 133 F.3d 737, 752 (lOth Cir. 1997) (upward departure not unreasonable for criminal history and large chance of recidivism) and U.S. v. Lewis, 115 F.3d 1531, 1539 (llth Cir. 1997) (upward departure of three levels not unreasonable because enhanced sentence would protect vulnerable members of society and deter future “predators” of fraud), cert. denied, 118 S. Ct. 733 (1998).

2705. 18 U.S.C. 3742(e)(4) (1994). Furthermore, if the court of appeals concludes that a sentence is outside the applicable Guidelines range and is unreasonable, or was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable, it must state specific reasons for its conclusion. Id. 3742(f)(2).

2706. FED. R. CRIM. P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”); see Plain Error in APPEALS in this Part. 2707. FED. R. CRIM. P. 52(b); see U.S. v. Mangone, 105 F.3d 29, 36 (Ist Cir.) (plain error when district court failed to provide defendant with notice of planned two-year upward departure), cert. denied, 117 S. Ct. 2424 (1997); U.S. v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir. 1997) (plain error when district court made arithmetical mistake when computing tax loss); U.S. v. Knobloch, 131 F.3d 366, 371 (,d Cir. 1997) (plain error when district court imposed offense characteristic enhancement contrary Lo Guidelines application note); U.S. v. Perkins, 108 F.3d 512, 517-18 (4th Cir. 1997) (plain error wh n district court

gave 52-month downward departure based on its own “sense of symmetry and justice”); U.S. v. Wilson, 116 F.3d 1066, 1085 (5th Cir. 1997) (plain error where district court based sentencing on a verdict subsequently found infirm), cert. denied, 118 S. Ct. 704 (1998); U.S. v. Barajas-Nunez, 91 F.3d 826, 831 (6th Cir. 1996) (plain error when downward departure for diminished mental capacity based on defendant’s lack of education); U.S. v. Otis, 107 F.3d 487, 489 (7th Cir. 1997) (plain error when district court failed to give defendant notice of sua sponte intent to depart upward); U.S. v. Farnsworth, 92 F.3d 1001, 1009 (lOth Cir. 1996) (plain error when upward departure based on ancient felony conviction contrary to Guidelines); U.S. v. Zapata, 139 F.3d 1355, 1359 (llth Cir. 1998) (plain error when district court improperly “rounded up” weight of narcotics); U.S. v. Mitchell, 49 F.3d 769, 785 (D.C. Cir. 1995) (plain error when district court failed to consider defendant’s eligibility for downward adjustment as minor participant in drug conspiracy in light of explicit finding that defendant less culpable than coconspirators). For further discussion of the plain error doctrine, see Plain Error in APPEALS in this Part. 2708. 28 U.S.C. 2111 (1994); FED. R. CRIM. P. 52(a). Compare U.S. v. Brewster, 127 F.3d 22, 30 (Ist Cir. 1997) (error of court’s reliance on defendant’s failure to seek treatment for alcoholism and physical abuse harmless when other grounds for departure relied on and adequate to support departure), cert. denied, 118 S. Ct. 1543 (1998); U.S. v. Corace, 146 F.3d 51, 55 (2d Cir. 1998) (error in court conducting ex parte communication with court-appointed plan trustee harmless when defendant did not challenge any facts or inferences drawn from the communication, only his deprival of notice); U.S. v. Spiers, 82 F.3d 1274, 1278 n.2 (3d Cir. 1996) (error in discretionary imposition of consecutive sentences under 1994 Guidelines rather than 1990 version harmless when earlier version provided greater discretion to sentencing court); U.S. v. Sampson, 140 F.3d 585, 593 (4th Cir. 1998) (error in calculating amount of proceeds from counterfeit drug sale harmless when defendant’s base offense level not affected by quantity); U.S. v. Brito, 136 F.3d 397, 416 (5th Cir.) (any error in calculating amount of marijuana transported harmless when defendant’s offense level would have been the same even under most conservative estimate of quantity), cert. denied, 118 S. Ct. 1817 (1998); U.S. v. Parrott, 148 F.3d 629, 634 (6th Cir. 1998) (error in failing to make specific factual findings to support upward adjustment harmless when defendant’s own statements at plea hearing establish that he committed crime); U.S. v. Newman, 148 F.3d 871, 877 n.4 (7th Cir. 1998) (error when court erroneously assessed criminal history points based on state court convictions harmless when defendant would have been in same criminal history category even without state convictions); U.S. v. Whatley, 133 F.3d 601, 607 (8th Cir.) (error in calculating amount of money laundered harmless when court would have imposed same sentence absent error), cert. denied, 118 S. Ct. 2347 (1998); U.S. v. Ripinsky, 109 F.3d 1436, 1445 (9th Cir. 1997) (error in calculating precise amount involved in fraud harmless when same sentence would apply to any amount possible in particular case), cert. denied, 118 S. Ct. 870 (1998); U.S. v. Anaya, 117 F.3d 447, 448-49 (lOth Cir. 1997) (error in admitting alien’s prior conviction for sentencing enhancement harmless when evidence against alien was overwhelming); U.S. v. Jones, 143 F.3d 1417, 1420 (llth Cir. 1998) (error in failing to inform defendant of mandatory minimum sentence harmless when signed, written plea agreement described minimum sentence) and U.S. v. Gaviria, 116 F.3d 1498, 1525 (D.C. Cir. 1997) (error in failing to inform defendant that failing to challenge prior convictions constituted waiver harmless when defendant raised challenges that had no factual basis), cert. denied sub nom., Naranjo v. U.S., 118 S. Ct. 865 (1998) with Maynard v. Cartwright, 486 U.S. 356, 364-65 (1988) (error in applying unconstitutionally vague aggravating circumstance when considering death penalty not harmless when statute required sentencer to balance aggravating and mitigating circumstances); U.S. v. Jimenez Martinez, 83 F.3d 488, 494 (Ist Cir. 1996) (error in district court’s unquestioning reliance on co-defendant’s affidavit to establish drug quantity as basis for sentence not harmless when defendants shared no common language); U.S. v. Ming He, 94 F.3d 782, 794 (2d Cir. 1996) (error in sentencing defendant who was denied presence of counsel at debriefing interview not harmless when court relied on defendant’s lack of candor in sentencing); U.S. v. Demes, 941 F.2d 220, 223 (3d Cir. 1991) (error in district court’s failure to consider defendant’s ability to pay not harmless when statute required finding as to defendant’s ability to pay); U.S. v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998) (error in counting prior convictions separately in determining defendant’s criminal history score not harmless when no evidence court would have imposed same sentence absent error); U.S. v. Stewart, 917 F.2d 970, 973 (6th Cir. 1990) (error in district court’s determination that it lacked discretion to impose concurrent sentence for crime committed while serving unexpired sentence for unrelated offense not harmless when discretion existed under Guidelines); U.S. v. Wallace, 114 F.3d 652, 656 (7th Cir. 1997) (error in deducting credit for substantial assistance because defendant had already been rewarded deduction by other guideline not harmless when two guidelines should have been considered separately); Anderson v. Hopkins, 113 F.3d 825, 830 (8th Cir. 1997) (error in reliance on invalid factor in imposing death sentence not harmless when not clear that sentence would have been same without reliance on factor); U.S. v. Alerta, 96 F.3d 1230, 1235-36 (9th Cir. 1996) (error in jury instructi,:, related to type of firearm involved not harmless when it could not be determined that jury found specific type of firearm which affected sentencing); U.S. v. Ruiz-Castro, 92 F.3d 1519, 1536 (lOth Cir. 1996) (en-or in failing to advise defendant that failure to challenge prior convictions constituted

waiver not harmless when defendant may not have understood ability to challenge conviction) and U.S. v. Siegel, 102 F.3d 477, 481 (llth Cir. 1996) (error in failing to inform defendant of mandatory minimum sentence not harmless). For a discussion of the harmless error doctrine, see Harmless Error in APPEALS in this Part.

2709. FED. R. CRIM. P. 35(a). Because such a correction is the imposition of a new sentence, the defendant is entitled to be present and to allocute at resentencing. U.S. v. Moree, 928 F.2d 654, 655-56 (Sth Cir. 1991) (sentencing vacated and remanded because defendant not present during resentencing and not given opportunity to allocute); U.S. v. Taylor, 11 F.3d 149, 152 (llth Cir. 1994) (same); see also FED. R. CRIM. P. 43(a) (defendant entitled to be present during sentencing). The cases in which these rights attach are narrowly circumscribed. See U.S. v. De Los Santos-Himitola, 924 F.2d 380, 382-83 (lst Cir. 1991) (defendant not entitled to be present for sua sponte correction by district court to remove possibility of parole, so as to make sentence conform to Anti-Drug Abuse Act); U.S. v. Agard, 77 F.3d 22, 25 (2d Cir. 1996) (defendant not entitled to be present for modification to make sentence less onerous given prior opportunities to object); U.S. v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993) (“[W]here the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as modification does not make the sentence more onerous.” (quoting U.S. v. Jackson, 923 F.2d 1494, 1497 (llth Cir. 1991))). The rights to be present and to allocute may be waived by the defendant. U.S. v. Doe, 964 F.2d 157, 158-59 (2d Cir. 1992). 2710. FED. R. CRIM. P. 35(b); see U.S. v. Drown, 942 F.2d 55, 59 (lst Cir. 1991) (dictum) (Rule 35(b) designed to reward substantial assistance rendered by defendant after sentence imposed); U.S. v. Speed, 53 F.3d 643, 645 (4th Cir. 1995) (downward departure granted pursuant to Rule 35(b) can apply only to substantial assistance that takes place after sentencing); U.S. v. Hayes, 5 F.3d 292, 294 (7th Cir. 1993) (downward departure granted pursuant to Rule 35(b) for substantial assistance valid where grounds for departure reasonable); U.S. v. Jenkins, 105 F.3d 411, 412 (8th Cir. 1997) (plea agreement promise to file Rule 35 motion in exchange for substantial assistance is enforceable); cf. U.S. v. Luiz, 102 F.3d 466, 469 (llth Cir. 1996) (sentence reduction may be based only on factors related to defendant’s substantial assistance). But cf. Il.S. v. Manella, 86 F.3d 201, 204 (llth Cir. 1996) (seriousness of offense and the need for just punishment may militate against granting Rule 35(b) reduction even with substantial assistance). The extent of the downward departure is not reviewable, as it does not fall within one of the three categories of appeal authorized by 18 U.S.C. 3742(a). See U.S. v. Doe, 93 F.3d 67, 67-68 (2d Cir. 1996) (dismissing defendant’s complaint for lack of jurisdiction to review extent of district court’s Rule 35(b) reduction), cert. denied, 117 S. Ct. 944 (1997); U.S. v. Pridgen, 64 F.3d 147, 148-50 (4th Cir. 1995) (same); U.S. v. McDowell, 117 F.3d 974, 977-78 (7th Cir. 1997) (same); U.S. v. Coppedge, 135 F.3d 598, 599 (8th Cir. 1998) (same); U.S. v. Arishi, 54 F.3d 596, 597-99 (9th Cir. 1995) (same); U.S. v. McMillan, 106 F.3d 322, 324 n.2 (lOth Cir. 1997) (same); U.S. v. Manella, 86 F.3d 201, 202-03 (llth Cir. 1996) (same); but see U.S. v. McAndrews, 12 F.3d 273, 277-78 (lst Cir. 1993) (court has jurisdiction to hear appeal because Rule 35(b) motion is not a sentence and is therefore governed by 28 U.S.C. 1291, not 18 U.S.C. 3742(a)).

An amendment to Rule 35(b), which reads as follows, became effective on December 1, 1998: “(b) Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the sentence is imposed, the court may reduce the sentence to reflect a defendant’s subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant’s substantial assistance involves information or evidence not known by the defendant until one year or more after sentence is imposed. In evaluating whether substantial assistance has been rendered, the court may consider the defendant’s pre-sentence assistance. In applying this subdivision, the court may reduce the sentence to a level below that established by statute as a minimum sentence.” 2711. FED. R. CRIM.4. P. 35(b); see U.S. v. Fraley, 988 F.2d 4, 6-7 (4th Cir. 1993) (district court may not “simply . . . change its mind about the appropriateness of sentence”; absent error in original sentence, Rule 35(b) permits reduction of sentence only upon government motion for substantial assistance); U.S.

v. Hayes, 983 F.2d 78, 81 (7th Cir. 1992) (sentence reduction under Rule 35 must be upon motion by government and only for substantial assistance).

The district court must consider the Guidelines and policy statements issued by the Sentencing Commission in any reduction of sentence. See Williams v. U.S., 503 U.S. 193, 201 (1992) (Guidelines binding and policy statements “authoritative guide” to their meaning). The district court has authority to reduce a sentence pursuant to Rule 35(b) below the statutory minimum on government motion. FED. R. CRIM. P. 35(b).

The Rule 35(b) motion to reduce a sentence for substantial assistance subsequent to the defendant’s initial sentencing is distinct from a government motion to depart downward under 5KI.1 of the Guidelines or 18 U.S.C. 3553(e) for substantial assistance given before sentencing. See U.S. v. Drown, 942 F.2d 55, 59 (Ist Cir. 1991) ( 5Kl.1 rewards assistance prior to sentencing while Rule 35(b) awards subsequent cooperation); U.S. v. Bureau, 52 F.3d 584, 594 (6th Cir. 1995) (Rule 35(b) resentencing provision temporally distinguishable from SKI.1); U.S. v. Alvarez, 115 F.3d 839, 842 (llth Cir. 1997) (Rule 35 reduction cannot be used to reflect substantial assistance rendered prior to sentencing). For a discussion of 5KI.1 and 18 U.S.C. 3553, see Departures in SENTENCING GUIDELINES in Part IV. 2712. 18 U.S.C. 3582(c)(1)(A) (1994). Reduction of sentence under this provision is wholly separate from Rule 35; the Senate Judiciary Committee explained that this provision applies to the unusual case in which the defendant’s circumstances are so changed, such as by terminal illness, that continued confinement would be inequitable. S. REP. No. 225, supra note 1, at 121, reprinted in 1984 U.S.C.C.A.N. at 3304. The provision may be applied regardless of the length of the sentence. Id. 2713. 18 U.S.C. 3582(c)(2) (1994). Motion for such reduction may also be made by the Bureau of Prisons or by the court. Id. But cf. U.S. v. Allison, 63 F.3d 350, 351-53 (5th Cir. 1995) (defendant not entitled to adjustment based on retroactive amendment when sentence based in part on factors not relevant to amended Guideline provision); U.S. v. Brown, 104 F.3d 1254, 1255 (llth Cir. 1997) (same). 2714. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. CONST. amend. VIII. The prohibition against cruel and unusual punishment is applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67 (1962).

Review of criminal fines is governed by the Excessive Fines Clause of the Eighth Amendment. See Alexander v. U.S., 509 U.S 544, 558-59 (1993) (Excessive Fines Clause of the Eighth Amendment applies to in personam criminal forfeiture for purposes of determining “excessive” penalty; proportionality review under Solem, not appropriate with respect to imposition of criminal forfeiture); see also Austin v. U.S., 509 U.S. 602, 622 (1993) (declining to establish a multifactor test to determine whether forfeiture is constitutionally excessive).

2715. Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977) (Eighth Amendment concerned with punishment imposed after state has secured formal adjudication of guilt). 2716. Id. at 667. The Supreme Court has held unconstitutional the imposition of criminal punishment for status offenses involving punishment for personal characteristics rather than illegal acts. In Robinson, the Court held that the imposition of a criminal penalty for being addicted to narcotics was cruel and unusual punishment. 370 U.S. at 666-67. In Powell v. Texas, 392 U.S. 514 (1968) (plurality opinion), the Court held that the Robinson holding did not apply to the imposition of criminal punishment on a chronic alcoholic for public intoxication. The Court reasoned that the defendant was convicted not for the mere status of being a chronic alcoholic, but for the act of public drunkenness. Id. at 532. The Powell Court unanimously agreed that punishing a chronic alcoholic criminally for the status of being an alcoholic would be cruel and unusual punishment. Id. (dictum); id. at 549 (White, J., concurring); id. at 569-70 (Fortas, J., dissenting); see U.S. v. Black, 116 F.3d 198, 201 (Ist Cir.) (sentencing of defendant for distributing child pornography did not punish defendant’s status of being pedophile which would violate Eighth Amendment), cert. denied, 118 S. Ct. 341 (1997); U.S. v. Jester, 139 F.3d 1168, 1170 (7th Cir. 1998) (Robinson defense rejected because defendant not punished solely for being convicted felon but for being convicted felon in possession of firearm that has traveled in interstate commerce); U.S. v. Hall, 952

F.2d 1170, 1171 (9th Cir. 1991) (per curiam) (Robinson defense rejected because denial of downward departure for acceptance of responsibility not punishment of mentally impaired status of defendant, but based upon reason that defendant’s acts of acceptance not credible); U.S. v. Blackner, 901 F.2d 853, 854-SS (lOth Cir. 1990) (Robinson defense rejected because possession of narcotics with intent to distribute, unlike status or state of addiction, culpable act); U.S. v. Benefield, 889 F.2d 1061, 1064 (1I th Cir. 1989) (Robinson defense “not applicable when the government seeks to punish a person’s actions”).

2717. Ingraham, 430 U.S. at 667; see In re Kemmler, 136 U.S. 436, 447 (1890) (torture and lingering death not permissible); Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (torture and all punishments involving unnecessary cruelty not permissible). For discussion of whether certain forms of capital punishment are unconstitutional, see note 2371 in CAPITAL PUNISHMENT in Part IV.

2718. Ingraham, 430 U.S. at 667. Compare Solem, 463 U.S. at 303 (life sentence without possibility of parole for seventh nonviolent felony, passing $100 no-account check, cruel and unusual punishment) and Weems v. U.S., 217 U.S. 349, 381-82 (1910) (IS-year sentence to hard labor and forfeiture of citizenship for falsifying entries in public record cruel and unusual punishment) with Harmelin v. Michigan, SOI U.S. 957, 990-96 (1991) (plurality opinion) (life imprisonment without parole for possessing 672 grams of cocaine not cruel and unusual punishment); Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (life imprisonment for property crime under state recidivist statute not so disproportionate as to constitute cruel and unusual punishment); U.S. v. Graciani, 61 F.3d 70, 76 (lst Cir. 1995) (280-month sentence for distributing 85.3 grams of cocaine not cruel and unusual punishment); U.S. v. Santos, 64 F.3d 41, 47 (2d Cir. 1995) (30-year sentence for use of gun with silencer during commission of drug offense not cruel and unusual punishment), vacated on other grounds, 116 S. Ct. 1038 (1996); U.S. v. Whyte, 892 F.2d 1170, 1175-76 (3d Cir. 1989) (35-year sentence for third offense involving $4,000 of crack cocaine and pulling loaded weapon on officer not excessive when compared to longer sentences for lesser offenses); U.S. v. Kratsas, 45 F.3d 63, 68 (4th Cir. 1995) (mandatory life sentence without possibility of parole for possession with intent to distribute five kilograms of cocaine when defendant repeat drug offender not cruel and unusual punishment); U.S. v. Gonzales, 121 F.3d 928, 943-44 (Sth Cir. 1997) (sentence enhancement of 30 years for using machine gun during drug offense not cruel and unusual punishment), cert. denied, 118 S. Ct. 1084 (1998); U.S. v. Organek, 65 E3d 60, 62-63 (6th Cir. 1995) (21-month sentence imposed for possession of short-barrelled shotgun not cruel and unusual punishment); U.S. v. Magana, 118 F.3d 1173, 1209 (7th Cir. 1997) (mandatory minimum sentence of 240 months for repeat drug offender not cruel and unusual punishment), cert. denied, 118 S. Ct. 1104 (1998); U.S. v. Prior, 107 F.3d 654, 659-60 (8th Cir.) (life sentence without parole where defendant had three prior drug felony convictions and intended to distribute 1,147.6 grams of methamphetamine not cruel and unusual punishment), cert. denied, 118 S. Ct. 84 (1997); Belgarde v. Montana, 123 F.3d 1210, 1215 (9th Cir. 1997) (six-month sentence with seven days suspended for second-time D.U.I. conviction not cruel and unusual punishment); U.S. v. Robertson, 45 F.3d 1423, 1447 (lOth Cir. 1995) (life sentence for defendant convicted of leading conspiracy involving 871 grams of cocaine not cruel and unusual punishment); U.S. v. Quinn, 123 F.3d 1415, 1425 (llth Cir. 1997) (235-month sentence for crack-cocaine offense not cruel and unusual punishment), cert. denied, 118 S. Ct. 1203 (1998) and U.S. v. Spencer, 25 F.3d 1105, 1110-11 (D.C. Cir. 1994) (30-year sentence as career offender for possession of less than eight grams of narcotics with intent to distribute not cruel and unusual punishment). A punishment once considered constitutional may be considered excessive in violation of the Eighth Amendment if it contravenes “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). Because this principle has seen its greatest application in death penalty challenges, it is discussed in Proportionality in CAPITAL PUNISHMENT in Part IV.

2719. 463 U.S. 277 (1983).

2720. Id. at 292. The Court in Solem held that the imposition of a life sentence without the possibility of parole for a seventh nonviolent felony conviction violated the Eighth Amendment. Id. at 303. This decision appears to contradict the Court’s prior decision in Rummel v. Estelle, 445 U.S. 263 (1980), which upheld a mandatory life sentence imposed after a third felony conviction under Texas’s recidivist statute. Id. at 285. Rummel intimated that, except in the most extraordinary cases, the length of felony sentences is “purely a matter of legislative prerogative.” Id. at 274 (footnote omitted). Solem narrows this view of near absolute legislative discretion by proffering a “substantial deference” standard. 463 U.S. at 288-89 n.16. The Court distinguished Rummel by noting that the defendant in Rummel would eventually be considered for parole whereas the defendant in Salem would not. Id. at 297.

The circuits disagree whether the possibility of parole forecloses proportionality analysis of a sentence. The Fourth, Sixth, and Eighth Circuits do not require proportionality review for any sentence less than life imprisonment without parole. See U.S. v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995) (proportionality

review not appropriate for any sentence less than life imprisonment without possibility of parole); U.S. v. Organek, 65 F.3d 60, 63 (6th Cir. 1995) (proportionality review not required “except in cases where the penalty imposed is death or life in prison without possibility of parole” (quoting U.S. v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995))); U.S. v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990) (proportionality review appropriate for life sentence without possibility of parole). The Third Circuit does not engage in extended proportionality review if parole is available. See U.S. v. Whyte, 892 F.2d 1170, 1176 n.16 (3d Cir. 1989) (abbreviated proportionality review satisfies Eighth Amendment requirements when defendant received less than life sentence without possibility of parole). The Fifth Circuit has indicated that the possibility of parole, although a factor in determining the proportionality of a sentence, does not foreclose review when a defendant is sentenced for a serious offense. See U.S. v. Lemons, 941 F.2d 309, 320 (Sth Cir. 1991) (availability of parole for defendant convicted under career offender provisions of Guidelines for manufacturing marijuana not sufficiently disproportionate to trigger application of Solem analysis). The Tenth Circuit has held that the availability of parole is relevant to determining whether the length of the sentence violates the Eighth Amendment. Gutierrez v. Moriarty, 922 F.2d 1464, 1473 (lOth Cir. 1991) (life sentence not grossly disproportionate to repeat drug offenses given that defendant paroled after only seven years imprisonment).

Three circuits have rejected arguments that a defendant’s advanced age can make a prison term of years tantamount to life imprisonment or a death sentence. See U.S. v. LaRouche, 896 F.2d 815, 831-32 (4th Cir. 1990) (defendant’s age irrelevant to proportionality analysis where sentence is not for life); U.S. v. Murphy, 899 F.2d 714, 719 (8th Cir. 1990) (defendant’s age “irrelevant to the validity of his sentences under the Eighth Amendment”); U.S. v. Thornbrugh, 7 F.3d 1471, 1473 (lOth Cir. 1993) (age itself ordinarily irrelevant in determining whether sentence should be outside applicable Guidelines range when total sentence in excess of defendant’s life expectancy).

2721. Solem, 463 U.S. at 292. These tests do not limit sentencing discretion by requiring rigid equality. A sentence is not disproportionate under the Eighth Amendment just because it exceeds a co-defendant’s sentence. See U.S. v. Pavlico, 961 F.2d 440, 447-48 (4th Cir. 1992) (40-year sentence for mail fraud not disproportionate to co-defendant’s 20-year sentence where defendant more to blame and both defendants eligible for parole after 10 years); Russell v. Collins, 998 F.2d 1287, 1294 (Sth Cir. 1993) (death sentence for murder not disproportionate to co-defendant’s 60-year sentence pursuant to plea bargain where defendant chose jury trial and no evidence of prosecutorial vindictiveness); U.S. v. Coonce, 961 F.2d 1268, 1281-83 (7th Cir. 1992) (three consecutive five-year sentences not disproportionate to codefendants’ lesser sentences because defendant’s organizing role in offense); U.S. v. Prior, 107 F.3d 654, 660 (8th Cir.) (comparison of defendant’s conduct with other defendants receiving similar sentences only appropriate after gross disproportionality established), cert. denied, 118 S. Ct. 84 (1997); U.S. v. Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998) (10-year sentence for any offense not disproportionate when defendant pleaded guilty and cooperated with prosecutors); cf. U.S. v. Jones, 145 F.3d 959, 963 (8th Cir. 1998) (sentence not subject to proportionality review comparing defendant’s sentence of 30 years with more culpable co-defendant’s lesser sentence of seven years); Hatch v. Oklahoma, 58 F.3d 1447, 1466-67 (lOth Cir. 1995) (death sentence for first-degree murder not subject to proportionality review comparing defendant’s sentence with co-defendant’s lesser sentence). 2722. 501 U.S. 957 (1991).

2723. Id. at 965 (Scalia, J. & Rehnquist, C.J., concurring). 2724. Id. at 1004-OS (Kennedy, O’Connor & Souter, JJ., concurring). The concurrence stated that, given the pernicious nature of the defendant’s crime, the sentence was within constitutional boundaries and the additional Solem factors need not be considered. Id. at 1004. The concurrence concluded that Solem “is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review.” Id. at 1004-OS.

Justice Scalia, in an opinion joined only by Chief Justice Rehnquist, stated that, except in death penalty cases, the Eighth Amendment does not contain a proportionality requirement. Id. at 994-95 (Scalia, J. & Rehnquist, C.J., concurring). Accordingly, the two Justices would overrule Solem as “simply wrong; the Eighth Amendment contains no proportionality guarantee.” Id. at 965.

Thus, five Justices in Harmelin held that the imposition of life in prison without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. Id. at 994-95 (Scalia, J. & Rehnquist, C.J., concurring); id. at 1002-04 (Kennedy, O’Connor & Souter, JJ., concurring); see U.S. v. D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994) (applied Harmelin proportionality test; life imprisonment without parole for drug conspiracy, possession, and distribution offenses not cruel and unusual); Smallwood v. Johnson, 73 F.3d 1343, 1346-47 (5th Cir. 1996) (applied Harmelin’s “threshhold comparison” test; 50-year sentence for misdemeanor theft, made felony by recidivist statute, not grossly disproportionate); U.S. v. Hill, 30 F.3d 48, 50-51 (6th Cir. 1994) (applied Harmelin’s “narrow proportionality” test; mandatory life imprisonment without parole upon third felony drug conviction not grossly disproportionate); Simmons v. Iowa, 28 F.3d 1478, 1482-83 (8th Cir. 1994) (applied Harmelin’s less exacting review; mandatory life imprisonment without parole for aiding and abetting restraint and torture of child not grossly disproportionate).

2725. Harmelin, 501 U.S. at 1019, 1021-23 (White, Blackmun & Stevens, JJ., dissenting); id. at 1027 (Marshall, J., dissenting).

2726. Solem, 463 U.S. at 290 n.16. Until Harmelin, the Supreme Court had not considered any noncapital claims of disproportionality. In contrast, the Court has decided many cases alleging disproportionate punishment for capital crimes. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (death penalty not disproportionate for moderately mentally retarded); Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (plurality opinion) (death penalty not disproportionate for 16- and 17-year-old defendants); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (plurality opinion) (death penalty disproportionate for 15-year-old offender); Tison v. Arizona, 481 U.S. 137, 158 (1987) (death penalty not disproportionate for defendant who does not kill, but who participated with reckless indifference in felony that resulted in murder); Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (plurality opinion) (death penalty disproportionate for insane prisoner).

Because it is qualitatively different from all other forms of criminal punishment, the death penalty has generated its own body of law. See Seritt v. Alabama, 731 F.2d 728, 732 (llth Cir. 1984) (Supreme Court decisions in capital cases of limited assistance in deciding constitutionality of punishment in noncapital cases). The proportionality of capital sentencing is discussed in CAPITAL PUNISHMENT in Part IV. 2727. See Harmelin, 501 U.S. at 998-99; Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (per curiam) (sentence for term of years not violation of Eighth Amendment because within statutory limit); U.S. v. Richard, 943 F.2d 115, 120 (lst Cir. 1991) (10-year sentence for possession with intent to distribute 1,000 kilograms of marijuana not excessive because within statutory limits); U.S. v. Whiteley, 54 F.3d 85, 92 (2d Cir. 1995) (84-month sentence imposed on defendant for bank robbery affirmed, even though district court did not comply with relevant Guidelines, because sentence within statutory limits); U.S. v. Mobley, 956 F.2d 450, 455-59 (3d Cir. 1992) (27-month prison sentence with three years supervised release not violation of due process because within Guidelines); U.S. v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992) (40-year prison sentence not illegal for purposes of appeal under Rule 35(a) because within statutory limits); U.S. v. Prudhome, 13 F.3d 147, 150 (Sth Cir. 1992) (288-month sentence for firearm possession by felon not violation of Eighth Amendment because within Guidelines range); U.S. v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994) (10-year sentence for forgery not violation of Eighth Amendment because within statutory limits); U.S. v. Coonce, 961 F.2d 1268, 1283 (7th Cir. 1992) (three consecutive five-year sentences for four counts of mail fraud not excessive because within statutory limits and not based upon improper considerations); U.S. v. Farmer, 73 F3d 836, 839-840 (8th Cir. 1996) (life sentence for felony robbery not violation of Eighth Amendment because in accord with recidivist statute); Belgarde v. Montana, 123 F.3d 1210, 1214 (9th Cir. 1997) (six-month sentence with seven days suspended for second-time D.U.I. conviction not violation of Eighth Amendment because within statutory limits); U.S. v. Nicholson, 17 F.3d 1294, 1299 (lOth Cir. 1994) (240-month sentence for possession with intent to distribute 95.05 kilograms of cocaine not cruel and unusual punishment because within Guidelines); U.S. v. Costa, 947 F.2d 919, 921, 928 (llth Cir. 1991) (sentence for drug trafficking offenses not excessive because within statutory limits).

The deference to statutory limits also applies to fines and “punitive forfeitures.” See U.S. v. Emerson, 107 F.3d 77, 81 (Ist Cir.) (penalty of $185,000 for federal aviation violation not excessive because

one-half size permitted by statute and less than government recommends), cert. denied, 118 S. Ct. 61 (1997); U.S. v. 38 Whalers’ Cove Dr., 954 F.2d 29, 39 (2d Cir. 1992) (punitive forfeiture of $145,000 condominium, even if fine, not excessive because within scope of Comprehensive Drug Abuse Prevention and Control Act of 1970); U.S. v. Atlantic Disposal Serv., Inc., 887 F.2d 1208, 1209 n.4 (3d Cir. 1989) (fines of $350,000 and $2,000,000 for bid rigging not excessive because “sentences were far less harsh than they might have been”); U.S. v. Vriner, 921 F.2d 710, 713 (7th Cir. 1991) (forfeiture of 5.5 acres and warehouse, in addition to 12-year sentence, for conspiracy to distribute and distribution of 1,000 kilograms of marijuana not excessive because no gross disproportion between punishment and crime shown by defendant); U.S. v. Van Brocklin, 115 F.3d 587, 601 (8th Cir. 1997) (forfeiture of $1,325,910.60 excessive because defendant reaped very little benefit from fraud), cert. denied, 118 S. Ct. 1804 (1998); U.S. v. One Parcel Property, 106 F.3d 336, 339 (lOth Cir. 1997) (forfeiture of $47,700 for cocaine conviction not excessive because fine authorized by Congress allowed up to $2,000,000); cf. U.S. v. Various Computers & Computer Equip., 82 F.3d 582, 589 (3d Cir. 1996) (forfeiture of computers bought with proceeds of criminal profit not “punishment” under Excessive Fines Clause).

The deference to statutory limits also applies to disproportionate sentencing schemes treating one gram of cocaine base (crack cocaine) the same as 100 grams of powder cocaine. See U.S. v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995) (Eighth Amendment not violated by 100-to-1 sentencing ratio for crack cocaine); U.S. v. Alton, 60 F.3d 1065, 1070 (3d Cir. 1995) (equal protection not violated by disparate impact of severe penalties for crack cocaine offenses on African Americans); U.S. v. Hayden, 85 F.3d 153, 157 (4th Cir. 1996) (equal protection not violated by sentencing disparity between crack and powder cocaine); U.S. v. Alix, 86 F.3d 429, 437 n.5 (Sth Cir.1996) (same); U.S. v. Washington, 127 F.3d 510, 517 (6th Cir. 1997) (same), cert. denied, 118 S. Ct. 2348 (1998); U.S. v. Westbrook, 125 F.3d 996, 1010 (7th Cir.) (same), cert. denied, 118 S. Ct. 643 (1997); U.S. v. Smith, 82 F.3d 241, 244 (8th Cir. 1996) (neither equal protection nor due process violated by sentencing disparity between crack and powder cocaine); U.S. v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996) (equal protection not violated by sentencing disparity between crack and powder cocaine); U.S. v. Turner, 928 F.2d 956, 960 (lOth Cir. 1991) (due process not violated by sentencing disparity between crack and powder cocaine); U.S. v. Williams, 876 F.2d 1521, 1525 (llth Cir. 1989) (same).

The Third and Fifth Circuits have ruled that when a defendant violates the terms of supervised release, additional prison terms are not excessive, even though the combined total of both terms exceeds the statutory maximum term for the underlying offense. See U.S. v. Blackston, 940 F.2d 877, 881 (3d Cir. 1991) (three-year sentence following violation of supervised release not excessive when new sentence plus time served exceeded statutory maximum because violation of supervised release separate offense); U.S. v. Williams, 919 F.2d 266, 271 (Sth Cir. 1990) (one-year imprisonment following violation of supervised release not excessive, although new sentence plus 10 months already served exceeded one-year statutory maximum, because new sentence punished new offense and not subject to statutory maximum).

2728. See supra, notes 2699 to 2700, for a discussion of the abuse of discretion standard. 2729. In contrast, a prisoner seeking to challenge the conditions of her confinement should pursue relief through a civil rights claim under 42 U.S.C. 1983. See Preiser v. Rodriguez, 411 U.S. 475, 494, 499 (1973). For a full discussion of the difference between habeas corpus relief and relief under 1983, see Provisions Applicability and Relief in PROCEDURAL MEANS OF ENFORCEMENT UNDER 42 U.S.C. 1983 in Part VI.

2730. The Constitution provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. 1, 9, cl. 2. See generally Wright v. West, 505 U.S. 277, 285-90 (1992) (reviewing historical development of habeas corpus relief).

2731. See Preiser v. Rodriguez, 411 U.S. 475, 485-86 (1973) (habeas appropriate method to challenge incarceration under unconstitutional statute, pretrial imprisonment based on defective indictment, confinement in improper institution, denial of constitutional rights at trial, invalid guilty plea, unlawful detention by executive or military, or parole revocation); Gonclaves v. Reno, 144 F.3d 110, 118 (lst Cir. 1998) (habeas appropriate method to challenge Attorney General’s decision that AEDPA as amended by the Illegal Immigrant Responsibility Act eliminated eligibility for discretionary relief reservation); Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997) (habeas appropriate method to challenge state court’s overnight ban and bar on consultation with counsel during trial); Brown v. Fauver, 819 F.2d 395, 397 (3d Cir. 1987) (habeas appropriate method to seek restoration of prisoner’s good-conduct time credits); Leonard v.

Hammond, 804 F.2d 838, 839-40 (4th Cir. 1986) (habeas appropriate method to attack validity of civil confinement for failure to pay child support); Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430 (5th Cir. 1998) (habeas appropriate method to challenge erroneous jury instructions); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993) (per curiam) (habeas appropriate method to seek relief for improper calculation of time credits); Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir. 1998) (habeas appropriate method to challenge prison conduct adjustment board’s decision that petitioner had conspired to incite a riot); Robbins v. Christianson, 904 F.2d 492, 495-96 (9th Cir. 1990) (habeas appropriate method to challenge prison disciplinary procedure finding of drug use); U.S. v. Furman, 112 F.3d 435, 438-39 (lOth Cir. 1997) (habeas appropriate method to challenge good-conduct time credit and parole procedures); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (habeas appropriate method to seek restoration of prisoner’s good-conduct time credits).

2732. See Hill v. U.S., 368 U.S. 424, 428-29 (1962). See Cognizable Issues in this section. 2733. Under 28 U.S.C. 2254 Rules 2 and 3, applicants currently in custody shall file a petition for a writ of habeas corpus naming the state officer having custody as respondent. Rule 2(a). Applicants not currently in custody pursuant to the judgment being attacked but subject to future custody shall file a petition for a writ of habeas corpus with an added prayer for appropriate relief against the judgment they wish to attack naming the state officer having custody and the attorney general for the state where the judgment was entered as respondents. Rule 2(b). Petitions must be typed or legibly handwritten and should follow or closely approximate the form of the model application, “Model Form for Use in Applications for Habeas Corpus under 28 U.S.C. 2254” annexed to the rules governing 2254, although district courts may require different forms for petitions under local rules. In any case, blank petitions shall be made available free of charge by the clerk of the court upon request. Rule 2(c). Petitions must be limited to the assertion of a claim for relief against the judgment or judgments of a single state court; a petitioner wishing to challenge the judgments of two or more state courts must do so by separate petitions. Rule 2(d). Petitions shall be filed in the office of the clerk of the district court and shall be accompanied by two copies thereof, as well as the filing fee prescribed by law. Petitioners unable to meet the filing fee may apply for leave to prosecute the petition in forma pauperis by filing the affidavit required by 28 U.S.C. 1915. Rule 3(a).

2734. “[Petitions] shall specify all the grounds for relief which are available to the petitioner and of which he has or by exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified. It shall also state the relief requested.” 28 U.S.C. 2254 Rule 2(c). See United States v. Labonte, 70 F.3d 1396, 1413 (Ist Cir. 1995) (habeas application must rest on factual allegations presented under oath, either in petition or supporting affidavit); Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir.) (hearing need not be held if habeas petition contains conclusory or speculative allegations rather than specific, factual allegations); Jones v. Jenison, 20 F.3d 849, 853 (8th Cir. 1994) (petition need not identify a legal theory or include citations to a legal authority); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (petition must contain specific and particularized facts, not conclusory or general remarks); Hatch v. Oklahoma, 58 F.3d 1447, 1471-72 (lOth Cir. 1995) (petition must contain specific and particularized facts, not conclusory or general remarks); Spaziano v. Singletary, 36 F.3d 1028, 1031 (llth Cir. 1994) (petition should not resemble a treatise but should be concisely written with specific facts). Cf Johnson v. Puckett, 929 F.2d 1067, 1070 (Sth Cir. 1991) (petition need only allege facts, not plead the law).

2735. Despite the requirements for specificity and particularity, pro se petitions are “held to less stringent standards than formal pleadings drafted by lawyers.” Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). Compare Roldan v. Racette, 984 F.2d 85, 87 (2d Cir. 1993) (pro se petition challenging 1988 INS proceeding liberally construed to challenge 1990 INS detainer for purpose of habeas custody requirement); Young v. Vaughn, 83 F.3d 72, 75-76 (3d Cir. 1996) (petition improperly attacking expired sentence construed as attacking current sentence); Guidroz v. Lynaugh, 852 F.2d 832, 834 (Sth Cir. 1988) (pro se petition construed as incorporated later pleadings as part of petition); Coulter v. Gramley, 93 F.3d 394, 397 (7th Cir. 1996) (pro se petition improperly addressing quality of Batson hearing in state court construed liberally to present substantive Batson claim); Jones v. Jenison, 20 F.3d 849, 853 (8th Cir. 1994) (pro se petition construed to raise federal claims even though phrased to suggest primarily state errors); Crotts v. Smith, 73 F.3d 861, 863 (9th Cir. 1996) (pro se petition liberally construed to include second claim of ineffective assistance of counsel arising from substance of first claim); Harvey v. Schillinger, 76 F.3d 1528, 1537 (lOth Cir.) (pro se petition improperly challenging vacated first sentence liberally construed as properly challenging second sentence that was allegedly enhanced due to ineffective assistance of counsel at first trial) and Holsomback v. White, 133 F.3d 1382, 1386 (llth Cir. 1998) (pro se petition challenging ineffective assistance of counsel because of failure to call a doctor as a

witness or use medical reports construed liberally as challenging ineffective investigation) with Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993) (pro se petition consisting of highlighted passages or scribbled notes in margins of judicial opinions not construed as substitute for petition actually alleging legal arguments); Parker v. Champion, 148 F.3d 1219 (lOth Cir. 1998) (pro se petition not rewritten to include claims of improper witness identification that were not presented in claim of ineffective counsel). In certain instances, a federal court will construe a state prisoner’s civil rights claim under 42 U.S.C. 1983 as a petition for habeas corpus relief. See Tedford v. Hepting, 990 F.2d 745, 749-50 (3d Cir. 1993) ( 1983 claim treated as petition for writ of habeas corpus when validity of plaintiff’s criminal conviction necessarily at issue); Buchanon v. Gilmore, 139 F.3d 982, 984 (4th Cir. 1998) ( 1983 claim treated as successive petition for writ of habeas corpus barred by statute); McGrew v. Texas Bd. of Pardons 8: Paroles, 47 F.3d 158, 161 (Sth Cir. 1995) (per curiam) ( 1983 claim treated as petition for writ of habeas corpus when claim challenged constitutionality of state law mandating imprisonment); In re Sapp, 118 F.3d 460, 462 (6th Cir.) ( 1983 petition treated as habeas corpus petition when challenging method of execution as a condition of his confinement), cert. denied, 117 S. Ct. 2536 (1997); Prather v. Norman, 901 F.2d 915, 917 (llth Cir. 1990) (per curiam) ( 1983 claim treated as petition for writ of habeas corpus when complaint alleged constitutional violations that would cast doubt on conviction). But cf Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam) ( 1983 claim should not be treated as petition for writ of habeas corpus when plaintiff’s intent to bring habeas petition unclear). 2736. Antiterrorism Act, supra note 1, 2244(d).

2737. A 180-day limitation is placed on certain capital cases. 28 U.S.C. 2263 (1996). For full discussion, see Capital Cases in this section. 2738. 28 U.S.C. 2244(d)(1)(A). 2739. 28 U.S.C. 2244(d)(1)(B). 2740. 28 U.S.C. 2244(d)(1)(C). 2741. 28 U.S.C. 2244(d)(1)(D). 2742. 117 S. Ct. 2059 (1997).

2743. Lindh, 117 S. Ct. at 2068. See also David v. U.S., 134 F.3d 470, 473 (Ist. Cir. 1997) (AEDPA not applied to petition that was pending as of April 24, 1996); Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997) (pre-Antiterrorism Act standard of review applied to petitions pending on date of Antiterrorism Act enactment), cert. denied, 118 S. Ct. 739 (1998); In re Hanserd, 123 F.3d 922, 934 (6th Cir. 1997) (applying pre-Antiterrorism Act standard, allowing petitioner to raise new claim in second motion on showing of cause and prejudice, to petition filed prior to enactment). Cf. Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir. 1997) (Antiterrorism Act provisions directed at appeal procedures are dependent on date of filing appeals, not date filed in trial court); Hoggro v. Boone, 150 F.3d 1223 (lOth Cir. 1998) (distinguished Section 2255 from Section 2254 motions, the latter which requires the court to toll time spent pursuing post-conviction relief in state court). 2744. See 28 U.S.C. 2261 (1997).

2745. 28 U.S.C. 2241 (1994); see also 28 U.S.C. 2254(a) (federal judges shall entertain habeas corpus applications “on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws and treaties of the United States”).

2746. The habeas corpus provisions of the Antiterrorism Act limit the jurisdiction of the Supreme

Court and the U.S. courts of appeals to hear appeals of habeas petitions from lower federal courts. Antiterrorism Act supra note 1, 2253, 2244(b)(3), FED. R. Are. P. 22(a). In addition, the Antiterrorism Act also bars the court of appeals from considering original habeas petitions, and requires an original habeas petition filed with a circuit judge to be transferred to the appropriate district court. Antiterrorism Act, supra note 1, FED. R. Are. P. 22(a). For a full discussion of these provisions, see Remedies and Appeals in this section.

The Antiterrorism Act does not disturb the jurisdiction of the Supreme Court to hear original habeas petitions. See Felker v. Turpin, 518 U.S. 651, 660 (1996). In Felker, the Court recognized that while the Antiterrorism Act removes its authority to review an appeal, or a petition for a writ of certiorari, of a decision by a court of appeals denying a motion to file a second habeas application, the Antiterrorism Act does not affect the Court’s jurisdiction over original habeas petitions filed under 28 U.S.C. 2241 and 2254. Id. at 2338-39.

2747. 28 U.S.C. 2241(d) (1994). Cf. In re Green, 39 F.3d 582, 583 (Sth Cir. 1994) (district court for district in which petitioner indicted, but neither tried nor incarcerated, lacks jurisdiction to entertain petition).

A prisoner cannot challenge the custody of two different states in the same habeas corpus proceeding. Section 2254 Rules, supra note 1, Rule 2(d); see Bianchi v. Blodgett, 925 F.2d 305, 308-09 (9th Cir. 1991) judgments of California and Washington state courts could not be challenged in same habeas proceeding even though pleas in both states entered pursuant to a single plea agreement).

A prisoner in the District of Columbia is treated differently than a state prisoner for purposes of obtaining habeas corpus review. A prisoner of the District of Columbia must first bring a post-conviction claim before the District of Columbia court that sentenced her. D.C. CODE ANN. 23-110(g) (1981). A D.C. prisoner has no recourse to a federal habeas court unless the local remedy is inadequate or ineffective to test the legality of her detention. Id. See Swain v. Pressley, 430 U.S. 372, 378 (1977) (because Congress created post-conviction remedy in D.C. sentencing court, habeas petition may not be entertained elsewhere); cf Neal v. Director, D.C. Dep’t. of Corrections, 684 F.2d 17, 20 (D.C. Cir. 1982) (per curiam) (transferring prisoner out of D.C. did not deprive D.C. Circuit of jurisdiction over petitioner’s habeas corpus claim).

2748. 28 U.S.C. 2241(d)(1994). A prisoner is not prevented from habeas relief when transferred, either voluntarily or involuntarily, out of state. See U.S. ex rel. Mclnery v. Shelly, 702 F.2d 101, 102 (7th Cir. 1982) (per curiam) (transferring prisoner out of state did not divest court of appeals of subject matter jurisdiction over appear from denial of writ); Shabazz v. Carroll, 814 F.2d 1321, 1324 (9th Cir. 1987) (transferring prisoner out of state without proper court order did not divest jurisdiction over habeas corpus appeal); Neal v. Director, D.C. Dep’t of Corrections, 684 F2d 17, 20 (D.C. Cir. 1982) (per curiam) (transferring prisoner out of D.C. did not deprive D.C. Circuit of jurisdiction over petitioner’s habeas corpus claim). Note, however, that a petition may be transferred between courts of proper jurisdiction, in the “furtherance of justice,” at the discretion of the district court in which the petition is filed. 28 U.S.C. 2241(d) (1994).

2749. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-01 (1984) (release on recognizance while awaiting trial satisfies custody requirement); Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8 (1975) (release on bail after conviction pending final disposition of case satisfies custody requirement); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (release on parole satisfies custody requirement).

In Spencer v. Kenma, habeas petitioner’s release from prison after his petition had already been filed did not cause the petition to become moot. 118 S. Ct. 978, 982 (1998). The Court ruled that the “in custody” requirement was satisfied as long as petitioner was incarcerated at the time the petition was filed. See id.

Compare Scanio v. U.S., 37 F.3d 858, 860 (2d Cir. 1994) (term of supervised relief satisfies custody requirement); Barry v. Bergen County Probation Dep’t, 128 F.3d 152, 154 (3d Cir. 1997) (completing community service obligation fulfills “in-custody” obligation), cert. denied, 118 S. Ct. 1097 (1998); Wottlin v. Fleming, 136 F.3d 1032 (Sth Cir. 1998) (per curiam) (petitioner who was released to halfway house remained “in-custody” for purposes of habeas relief); Dow v. Circuit Court, 995 F.2d 922, 923 (9th Cir. 1994) (per curiam) (sentence of 14 hours of attendance at alcohol rehabilitation program satisfies custody requirement since physical presence deemed significant restraint on liberty); Galaviz-Medina v. Wooten, 27 F.3d 487, 491-91 (lOth Cir. 1995) (INS order of deportation taking effect after expiration of sentence satisfies custody requirement); Valhona v. U.S., 138 F.3d 693, 695 (7th Cir. 1998) (parole satisfied custody requirement) and Dawson v. Scott, 50 F.3d 884, 886 n.2 (llth Cir. 1995) (term of supervised release satisfies custody requirement) with Lefkowitz v. Fair, 816 F.2d 17 (Ist Cir. 1987) (revocation of medical license upon petitioner’s rape conviction does not satisfy custody requirement);

Spring v. Caldwell, 692 F.2d 994, 998 (5th Cir. 1982) (custody requirement not satisfied when petitioner subject to incarceration for nonpayment of fine because petitioner “holds the keys to the jailhouse door”); Harts v. Indiana, 732 F.2d 95, 96 (7th Cir. 1984) (one-year suspension of driving privileges does not satisfy custody requirement); Amerson v. Iowa Dep’t of Human Servs., 59 F.3d 92, 94 (8th Cir.1995) (ordered foster custody of child does not satisfy custody requirement since ordered custody did not significantly extend restraints beyond parental custody); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998) (requiring registration as a sex offender under “Meghan’s Law” of a convicted child molester who has completed his sentence does not meet the custody requirement) and Harvey v. Shillinger, 76 F.3d 1528, 1537 (lOth Cir. 1996) (finding petitioner not “in custody” since prevailing on petitioner’s ineffective assistance of counsel claim would not effect his current sentence). 2750. See Maleng v. Cook, 490 U.S. 488, 494 (1989) (per curiam) (petitioner serving federal sentence cannot challenge expired state sentence since custody requirement not satisfied for that conviction); Love v. Tippy, 128 F.3d 1258, 1259 (8th Cir. 1997) (no jurisdiction when petitioner completed state sentence before his current federal conviction).

2751. Under Maleng, supra note 2750, the lack of custody over a petitioner whose sentence has expired precludes a direct attack on the expired sentence. However, when the prior conviction has been used to enhance a subsequent sentence, the prior conviction can be challenged in an attack on the subsequent sentence since it was a contributing factor in determining the length of the subsequent sentence. Compare Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994) (even though sentence which petitioner sought to challenge had expired, petitioner could challenge the conviction when challenging sentence which he was serving on another conviction was enhanced as a result of the prior conviction) with Pleasant v. Texas, 134 F.3d 1256 (Sth Cir. 1988) (finding petitioner whose federal sentence was enhanced as a result of prior state robbery conviction was not in custody with regards to robbery conviction); Tredway v. Farley, 35 F.3d 288, 294 (7th Cir. 1995) (same); Harvey v. Shillinger, 76 F.3d 1528, 1537 (lOth Cir.) (same); Van Zant v. Florida Parole Comm’n, 104 F.3d 325 (llth Cir. 1997) (petitioner challenging second parole revocation for prisoner who was incarcerated as a result of third revocation did not meet custody requirement). Frequently, courts are willing to construe pro se petitions improperly attacking prior convictions as properly challenging the validity of the prior conviction while attacking the sentence currently being served. See, e.g., Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994) (prisoner can challenge validity of prior, fully expired conviction when challenging a current sentence enhanced by the prior conviction); White v. Butterworth, 70 F.3d 573, 574 (llth Cir. 1995) (per curiam) (pro se litigant attacking expired sentence read liberally to attack the current sentence).

2752. In cases where there is no subsequent conviction, the petitioner must show that there are significant adverse collateral consequences flowing from the prior conviction to defeat mootness. See Lane v. Williams, 455 U.S. 624 (1982) (criminal case is moot only when there is no possibility of collateral consequences being imposed on the basis of the challenged conviction); Carafas v. Lavallee, 391 U.S. 234, 237-39 (1968) (habeas petition not moot when prior conviction barred petitioner from jury duty, voting, and certain jobs and when petition filed while petitioner still in custody); Young v. Vaughn, 83 F.3d 72, 78 (3d Cir. 1996) (petitioner could attack expired conviction where sentence he was serving was collateral result of the expired sentence); Nakell v. Att’y Gen. of N.C, 15 F.3d 319, 322-23 (4th Cir. 1994) (habeas petition not moot when attorney disciplinary proceedings could result from contempt conviction, or when a fine might be refunded to a successful petitioner); Carter v. Procunier, 755 F.2d 1126, 1130 (5th Cir. 1985) (habeas petition not moot when prior conviction could serve as basis for impeachment of petitioner’s testimony, increased bail, or increased length of sentence in future proceedings); DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir. 1993) (habeas petition not moot when significant collateral consequences could result from petitioner’s criminal conviction); Leonard v. Nix, SS F.3d 370, 373 (8th Cir. 1995) (habeas petition not moot where pending claim under 1983 depended on success of habeas petition, and where petitioner subsequently returned to confinement on unrelated charge); Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 951 (9th Cir. 1998) (habeas petition not moot after completion of prison sentence for sexual assault because of community service requirements and prohibition of contact with children); Oyler v. Allenbrand, 23 F.3d 292, 294 (lOth Cir. 1994) (habeas petition not moot because collateral consequences could flow even from misdemeanor conviction); but see Munoz v. Rowlan, 104 F.3d 1096, 1098 (9th Cir. 1973) (possibility of significant collateral consequences arising from prison disciplinary action resulting in segregation from prison population too ephemeral to defeat mootness); Diaz v. Duckworth, 143 E3d 345, 346 (7th Cir. 1998) (deportation of petitioner while pending appeal mooted appeal because of absence of collateral consequences). 2753. 391 U.S. 54 (1968).

2754. Id. at 67 (“a prisoner serving consecutive sentences is `in custody’ under any of them”); cf Bernard v. Garraghty, 934 F.2d 52 (4th Cir. 1991) (habeas rules concerning consecutive sentences applied to consecutive sentences imposed in separate proceedings held one month apart for separate crimes). 2755. Peyton, 391 U.S. at 64-67. In Peyton, the Supreme Court ruled that the custody requirement for habeas petitions was satisfied when a petitioner serving first of two consecutive sentences challenged the unstarted second sentence, and that consecutive sentences were to be aggregated for habeas purposes. See Frazier v. Wilkinson, 842 F.2d 42, 45 (2d Cir. 1988) (petitioner serving federal sentence may attack consecutive state sentence, although no detainer had been lodged, when state intended to require petitioner to serve state sentence upon release from federal custody); Koetting v. Thompson, 995 F.2d 37, 39-40 (1993) (per curiam) (petitioner serving federal sentence could attack state detainer lodged against him); Willard v. Pearson, 823 F.2d 1141, 1146 (7th Cir. 1987) (petitioner serving federal sentence may attack consecutive state sentence); Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 398 (8th Cir. 1991) (petitioner serving federal sentence may attack consecutive state sentence when state placed detainer with federal authorities); Leacock v. Henman, 996 F.2d 1069, 1071 n.4 (lOth Cir. 1993) (petitioner serving federal sentence may attack state sentence not yet begun).

2756. Garlotte v. Fordice, SIS U.S. 39, 46 (1995). In Garlotte, the Supreme Court extended Peyton v. Rowe, 391 U.S. 54 (1968) (considering prisoners serving consecutive sentences “in custody” for purpose of challenging unserved future sentence), to petitioners serving consecutive sentences who challenge a conviction underlying a sentence already served. Id. The petitioner in Garlotte, who had received a three-year prison sentence for marijuana possession followed by two concurrent life sentences for murder, sought to attack the conviction underlying the three-year sentence that ran first because the full time already served under that sentence was delaying his eligibility for parole on the concurrent life sentences. Id. The Court ruled that, “Following Peyton, we do not disaggregate Garlotte’s sentences, but comprehend them as composing a continuous stream [and thus,] hold that Garlotte remains `in custody’ under all of his sentences until all are served, and now may attack the conviction underlying the sentence scheduled to run first in the series.” Id. at 41. See Bernard v. Garraghty, 934 F.2d 52 (4th Cir. 1991) (habeas rules concerning consecutive sentences applied to consecutive sentences imposed in separate proceedings held one month apart for separate crimes because petitioner continued to serve a portion of the aggregate term for multiple offenses).

2757. 28 U.S.C. 2254(a) (1994); accord id. 2241(c)(3): “The writ of habeas corpus shall not extend to a prisoner unless he is in custody in violation of the Constitution or laws or treaties of the United States.”

Relief for violations of federal law will only be granted if the violation rises to the level of a “fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Parley, 512 U.S. 339, 348 (1994) (quoting Hill v. U.S., 368 U.S. 424, 428 (1962)). See Cross v. Cunningham, 87 F.3d 586, 587 (Ist Cir. 1996) (claim that state violated Interstate Agreement on Detainers Act not cognizable as miscarriage of justice because alleged violation does not bear on fair trial); Napoli v. U.S., 32 F.3d 31, 35 (2d Cir. 1994) (claim of incorrect jury instruction under RICO not cognizable because any error not fundamental defect); U.S. v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995) (claim that district court failed to explain to petitioner effects of special parole not cognizable because error not fundamental defect); Kerr v. Finkbeiner, 757 F.2d 604, 607 (4th Cir. 1985) (claim that state violated Interstate Agreement on Detainers Act not cognizable because not fundamental defect when no showing of prejudice to petitioner); Llamas-Almaguer v. Wainwright, 666 F.2d 191, 194 (Sth Cir. 1982) (claim that state violated federal wiretapping statute not cognizable when violation did not result in miscarriage of justice and no reason to believe petitioner not convicted on basis of probative and reliable evidence); Knox v. Wyoming Dep’t of Corrections, 34 F.3d 964, 967-68 (lOth Cir. 1994) (claim that state violated Interstate Agreement on Detainers Act not cognizable because error not fundamental defect).

The Eleventh Circuit has refused to consider the facial constitutionality of particular state statutes on habeas review. See, e.g., Jones v. Goodwin, 982 F.2d 464, 471 (llth Cir. 1993) (refusing to consider facial constitutionality of state rape-shield statute on habeas review).

2758. In Pulley v. Harris, 465 U.S. 37 (1984), the Court denied habeas relief to a petitioner’s assertion that the state’s refusal to conduct a proportionality review of his death sentence amounted to a constitutional violation. Because the Eighth Amendment does not require a comparative proportionality review, the Court held that it was an issue of state law and not cognizable in federal habeas proceedings. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions.”); Bibbins v. Dalsheim, 21 F.3d 13, 18 (2d Cir. 1994) (per curiam) (claim of introduction of extraneous information affecting juror’s mental process in violation of state law not cognizable federal issue); Barry v. Bergen County Probation Dep’t, 128 F.3d 152, 159 (3d Cir. 1997) (failure of trial judge to voir dire jury regarding media coverage not a violation of defendant’s constitutional right to a fair trial); Castillo v. Johnson, 141 F.3d 218, 221-22 (Sth Cir. 1998) (claim that trial court’s exclusion of polygraph evidence in capital murder prosecution based on state per se rule of polygraph exclusion did not violate federal constitutional rights); Gonzales v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997) (claim that improper admission of evidence as an error of state law does not support writ of habeas corpus), cert. denied, 118 S. Ct. 1325 (1998); Poole v. Wood, 45 F.3d 246, 249 (8th Cir. 1995) (claim of wrongful interpretation of state criminal statute not cognizable in federal habeas corpus action); Bonin v. Calderon, 77 F.3d 1155, 1160 (9th Cir. 1996) (claim that state violated state procedures in setting date of execution not cognizable because error did not deprive petitioner of substantive right).

2759. Federal courts apply a different standard of harmless error in habeas proceedings than in appellate review. In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court ruled that habeas relief for constitutional trial errors must be granted only when the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 623 (quoting Kotteakos v. U.S., 328 U.S. 750, 756 (1946)). However, the Court recognized that, “in an unusual case, a deliberate and especially egregious constitutional [trial] error . . . might so infect the integrity of the proceeding as to [warrant] habeas relief” even absent a substantial influence on the verdict. Brecht at 638 n.9. Compare Kyles v. Whitley, 514 U.S. 419 (1995) (government suppression of evidence favorable to the defense necessarily entails conclusion that the suppression must have had “substantial or injurious effect or influence in determining the jury’s verdict”); Offor v. Scott, 72 F.3d 30, 33 (5th Cir. 1995) (substantial and injurious effect found when trial court permitted jury to view videotaped interview of alleged victim of child abuse in violation of Confrontation Clause when child previously fabricated incidents of abuse); Gravely v. Mills, 87 F.3d 779, 789 (6th Cir. 1996) (substantial and injurious effect found when prosecutor made frequent references to petitioner’s post-arrest silence and invited jury to consider silence as evidence of guilt, when evidence of guilt not overwhelming and prosecutorial misconduct egregious); Maurer v. Minnesota Dep’t of Corrections, 32 F.3d 1286, 1290-91 (8th Cir. 1994) (substantial and injurious effect found when witness testimony vouching for victim’s sincerity repeatedly solicited and reemphasized in closing argument because evidence was close and jury determination based largely upon truthfulness of defendant and victim); Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir. 1996) (substantial and injurious effect found when jury instructions improperly permitted jury to infer recklessness from speeding because court unable to determine if defendant convicted based solely upon admission of speeding) and Hill v. Turpin, 135 F.3d 1411, 1419 (llth Cir. 1998) (substantial and injurious effect found when prosecutor repeatedly referred to post-Miranda silence and request for counsel) with Levasseur v. Pepe, 70 F.3d 187, 198 (Ist Cir. 1995) (no substantial and injurious effect found when trial court admitted hearsay evidence in violation of Confrontation Clause because error not central to state’s case and did not permeate record); Alston v. Redman, 34 F.3d 1237, 1252 (3d Cir. 1994) (no substantial and injurious effect caused by introduction of testimony and transcript of confession because evidence cumulative and other evidence substantial); Satcher v. Pruett, 126 F.3d 561, 567 (4th Cir.) (no substantial and injurious effect found when court erred in in-court identification when witness pointed at petitioner in the courtroom), cert. denied, 118 S. Ct. 595 (1997); Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430, 438 (5th Cir. 1998) (no substantial and injurious effect found when judge improperly instructed the jury that allowed the jury to convict the petitioner of attempted first or second degree murder if he intended to inflict great bodily harm but did not intend to kill victim); Houston v. Dutton, 50 F.3d 381, 388 (6th Cir. 1995) (no substantial and injurious effect found when prosecutor remarked to jury on petitioner’s being in shackles during trial and his failure to testify when evidence against petitioner overwhelming); Jones v. Page, 76 F.3d 831, 855 (7th Cir. 1996) (no substantial and injurious effect found when trial court admitted confession in violation of Sixth Amendment when jury had overwhelming evidence upon which to conclude petitioner deserved death penalty); Williams v. Clarke, 40 F.3d 1529, 1538-42 (8th Cir. 1994) (no substantial and injurious effect found when unconstitutionally vague statutory aggravating factor considered by sentencing panel because evidence against petitioner overwhelming); Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998) (no substantial and injurious effect found where jury listened to a

tape that had not been admitted into evidence); Crespin v. State of New Mexico, 144 F.3d 641, 649 (lOth Cir. 1998) (no substantial and injurious effect found where Confrontation Clause violated by admission of accomplice’s statements) and Horsley v. Alabama, 45 F.3d 1486, 1493 (llth Cir. 1995) (no substantial and injurious effect found when court did not consider nonstatutory mitigating evidence because aggravating circumstances outweighed mitigating circumstances).

Where the judge is “in grave doubt” as to whether the error had substantial and injurious effect, the judge must find in favor of the petitioner. O’Neil v. McAninch, 613 U.S. 432, 437 (1995). Under the AEDPA, federal courts are to defer to state court determinations of factual issues. Such determinations are presumed correct, and the petitioner shall have the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. 2254(3)(e)(1).

2760. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court ruled that the benchmark for judging a claim of ineffectiveness was whether counsel’s conduct undermined the adversarial process to the extent that the trial (or certain capital sentencing proceedings) could not be relied upon as having produced a just result. Id. at 687. To succeed, a claim of ineffectiveness must show that counsel’s performance was deficient, and that counsel’s errors prejudiced the defense to the extent that the petitioner was deprived of a fair trial. Id. The standard for evaluating counsel’s performance is that of “reasonably effective assistance [according to the] prevailing professional norms.” Id. at 688. In order to eliminate the “distortion of hindsight,” the Court ruled that “courts must indulge a strong presumption that counsel’s conduct was reasonable, and that the petitioner must overcome the presumption that the challenged conduct may have been sound trial strategy.” Id. at 689. Therefore, the petitioner must identify those acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. See Kimmelman v. Morrison, 477 U.S. 365, 385-87 (1986) (ineffective assistance found where counsel failed to file a timely motion to suppress evidence obtained in an illegal search and seizure).

2761. See, e.g., Withrow v. Williams, 507 U.S. 680 (1993). In Withrow, the Court recognized that Miranda rights protecting a defendant’s Fifth Amendment privilege against self-incrimination are fundamental trial rights intended to guard against the use of unreliable statements at trial. Id. Thus, since violations of Miranda are in violation of due process rights, they are cognizable in federal habeas corpus proceedings. Id. at 688-93.

2762. Compare Kyles v. Whitley, 514 U.S. 419, 453 (1995) (due process violated when prosecution suppressed exculpatory evidence that, if disclosed, could reasonably have altered result of proceeding); Ouimette v. Moran, 942 F.2d 1, 9-11 (lst Cir. 1991) (due process violated when prosecutor failed at trial to disclose extensive criminal record of state’s chief witness and withheld from petitioner existence and nature of deals between state and witness in return for witness’s inculpatory testimony); Guerra v. Johnson, 90 F.3d 1075, 1080 (Sth Cir. 1996) (due process violated when prosecution failed to disclose exculpatory witness testimony) and Martin v. Parker, 11 F.3d 613, 616 (6th Cir. 1993) (per curiam) (due process violated when prosecutor made improper comments and repeated references to petitioner’s prior bad acts) with Bossett v. Walker, 41 F.3d 825, 829-30 (2d Cir. 1994) (due process not violated when prosecutor’s references to drug dealing by petitioner, notwithstanding court’s exclusion of that evidence, ruled not legally prejudicial since admissible to establish motive); Brown v. French, 147 F3d 307, 311 (4th Cir.) (due process not violated when prosecutor withheld evidence), cert. denied, 119 S. Ct. 559 (1998); Pyles v. Johnson, 136 F.3d 986, 999 (Sth Cir.) (due process not violated when prosecutor failed to produce evidence of deal with witness), cert. denied, 118 S. Ct. 2338 (1998); Liberman v. Washington, 128 F.3d 1085, 1094 (7th Cir. 1997) (due process not violated when prosecutor used post-arrest silence to undermine alibi); Madsen v. Dormin, 137 F.3d 602, 604 (8th Cir.) (due process not violated when prosecutor failed to disclose incompetence of witness who performed serology tests), cert. denied, 119 S. Ct. 247 (1998); Singh v. Prunty, 142 F.3d 1157, 1161 (9th Cir.) (due process not violated when prosecutor failed to disclose benefits given to witness in exchange for testimony), cert. denied, 119 S. Ct. 388 (1998); Duvall v. Reynolds, 139 F.3d 768, 785 (lOth Cir.) (due process not violated when prosecutor failed to turn over allegedly exculpatory statement of neighbor), cert. denied, 119 S. Ct. 345 (1998).

2763. Compare Kontakis v. Beyer, 19 F.3d 110, 114-15 (3d Cir. 1994) (improper jury instructions altering state’s burden of proving intent beyond reasonable doubt, while violating due process, will not justify grant of writ absent harm); Thomas v. Peters, 48 F.3d 1000, 1002-06 (7th Cir. 1995) (due process violated when court failed to instruct jury that finding of guilt on voluntary manslaughter must require acquittal on murder charge); Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir. 1996) (due process violated when judge failed to make new competency determination when judge became aware of petitioner’s serious mental illness) and Duckett v. Godinez, 67 F.3d 734, 738 (9th Cir. 1995) (due process violated when petitioner forced to appear in shackles before sentencing jury) with Herrera v. Collins, 506 U.S.

390, 411 (1993) (due process not violated when state refused to entertain petitioner’s new evidence eight years after conviction); Sinnott v. Duval, 139 F.3d 12, 18 (lst Cir. 1998) (due process not violated when institution allegedly equated use of deadly weapon with malice); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) (due process not violated by erroneous admission, without limiting instruction, of parole officer’s testimony indicating petitioner was a convicted felon), cert. denied, 119 S. Ct. 101 (1998); Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996) (due process not violated when trial court failed to elicit factual basis for guilty plea as required by state law); Boyd v. French, 147 F.3d 319, 327 (4th Cir. 1998) (due process not violated by allegedly false testimony of police officers); Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430 (Sth Cir. 1998) (due process not violated by giving of erroneous jury instruction for attempted murder); Kelly v. Withrow, 25 F.3d 363, 369-70 (6th Cir. 1994) (due process not violated when trial court admitted psychiatric tests of defendant when defendant pleaded insanity, regardless of whether admission of tests error); Robertson v. Hanks, 140 F.3d 707, 709 (7th Cir.) (due process not violated when judge failed to instruct jury on lesser included offenses), cert. denied, 119 S. Ct. 189 (1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998) (due process not violated when judge denied petitioner’s challenge for cause to venire jurors who leaned toward the death penalty); Neely v. Newton, 149 F.3d 1074 (lOth Cir. 1998) (due process not violated where petitioner was not allowed to question venire panel about members understanding of not guilty by reason of insanity), cert. denied, 119 S. Ct. 877 (1999) and Cox v. Norris, 133 F.3d 565 (llth Cir.) (due process not violated by failure of trial court to excuse juror for cause as a result of alleged animosity toward defendant and counsel), cert. denied, 119 S. Ct. 89 (1998).

2764. See Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court reasoned that due process is violated when a prisoner has been convicted on insufficient evidence since “the most elemental of due process rights is freedom from a wholly arbitrary deprivation of liberty.” Id. at 314. Under Jackson, the constitutional standard for reviewing claims of insufficient evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements [of the determination to be made].” Id. at 319.

2765. Id. In Jackson, the Court rejected the petitioner’s claim of insufficient evidence because the Court found sufficient circumstantial evidence for the trier of fact to conclude that the petitioner had the necessary intent to commit murder. Id. at 324-25. Although Jackson referred to “elements” of an offense, the court has held that the “rational fact finder” test also applies to a state court’s finding of aggravating circumstances at the sentencing phase of a capital trial. Lewis v. Jeffers, 497 U.S. 764, 780-84 (1990). Compare Evans-Smith v. Taylor, 19 F.3d 899, 909-10 (4th Cir. 1994) (habeas relief granted when circumstantial evidence that petitioner staged crime insufficient to prove actual guilt beyond reasonable doubt); Gilley v. Collins, 968 F.2d 465, 469-71 (Sth Cir. 1992) (habeas relief granted when evidence insufficient for rational trier of fact to find beyond reasonable doubt that petitioner exercised care, custody, control, or management over narcotics); Levine v. Torvik, 986 F.2d 1506, 1513-16 (6th Cir. 1993) (habeas petition, seeking relief from commitment ordered after finding of not guilty by reason of insanity, granted where state court could not rationally disregard all medical testimony that petitioner no longer mentally ill in favor of lay testimony regarding petitioner’s past heinous acts); Fagan v. Washington, 942 F.2d 1155, 1158 (7th Cir. 1991) (habeas relief granted when no evidence presented either linking murder weapon to petitioner or proving petitioner shared common design with murderer); Walters v. Maass, 45 F.3d 1355, 1358-60 (9th Cir. 1995) (habeas relief granted when link between petitioner’s attempt to entice victim into vehicle and charged crime too attenuated) and Stallings v. Tansy, 28 F.3d 1018, 1022 (lOth Cir. 1994) (habeas relief granted when no evidence of petitioner’s knowledge, an essential element of the crime, was presented at trial) with Wright v. West, SOS U.S. 277, 295 (1992) (plurality opinion) (habeas relief denied when trial record contained evidence sufficient to support defendant’s conviction); Stewart v. Coalter, 48 F.3d 610, 614-17 (Ist Cir. 1995) (habeas relief denied when evidence, albeit wholly circumstantial, supported conviction beyond reasonable doubt); Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir. 1996) (habeas relief denied when evidence sufficient for rational trier of fact to find petitioner in constructive possession of drugs); Bell v. Evatt, 72 F.3d 421, 436 (4th Cir. 1995) (habeas relief denied when evidence showing petitioner not mentally ill at time of offense allowed rational trier of fact to return guilty verdict); U.S. v. Sylvester, 143 F3d 923, 930 (5th Cir. 1998) (habeas relief denied when evidence supported existence of conspiracy); Daniels v. Burke, 83 F.3d 760, 766 (6th Cir. 1996) (habeas relief for petitioner convicted of second-degree murder denied when evidence sufficient for conviction of first-degree murder); Brumley v. Detella, 83 F.3d 856, 862 (7th Cir. 1996) (habeas relief denied when evidence sufficient for rational trier of fact to find petitioner guilty under accountability theory); Campbell v. Norris, 146 F.3d 606, 608 (8th Cir. 1998) (habeas relief denied when

sufficient evidence supported value of stolen goods); Turner v. Marshall, 63 F.3d 807, 816 (9th Cir. 1995) (habeas relief denied when case lacked any affirmative indications that robbery only incidental to killing, thereby containing sufficient evidence to find “robbery-murder special circumstance” on which sentence predicated), cert. denied, 118 S. Ct. 1178 (1998); Scrivner v. Tansy, 68 F.3d 1234, 1239 (lOth Cir. 1995) (habeas relief denied when accomplice testimony adequate and sufficiently corroborated for rational trier of fact to find petitioner guilty beyond reasonable doubt) and Machin v. Wainwright, 758 F.2d 1431, 1435 (llth Cir. 1985) (habeas petition denied when petitioner’s proximity to more than 600 pounds of marijuana in vehicle supported inference of knowledge and guilt).

2766. For a petitioner attempting to introduce new evidence as a basis for a claim of actual innocence, the requirements for an evidentiary hearing on the evidence may be relevant. For a discussion of these requirements as established by the AEDPA, see Evidentiary Hearings in this section.

2767. Herrera v. Collins, 506 U.S. 390, 401 (1993). In Herrera, the petitioner, ten years after his convictions, filed a federal habeas petition challenging his convictions of first-degree murder claiming that newly discovered evidence, in the form of affidavits stating that his dead brother had committed the murders, proved that he was actually innocent of the murders. Id. at 393-98. The Court reasoned that after final judgment, presumption of innocence no longer applies and a new claim of innocence is based upon fact, and habeas is not proper avenue for correcting such errors of fact. Id. at 398-402. The Court mentioned that a request for executive clemency is the proper remedy for claims of innocence based upon new evidence discovered too late to file a motion for new trial. Id. at 411-13. The court in Herrera left open the possibility that in a capital case, “a truly persuasive demonstration of `actual innocence’ made after trial would render the execution of a defendant unconstitutional,” even if the conviction was the product of a fair trial, thereby warranting federal habeas relief if no state avenues were available in which to entertain such a claim. Id. at 417. Nonetheless, such relief would be rare, as “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. Herrera failed to meet this standard because his affidavits were based mostly upon hearsay, were obtained without benefit of cross-examination, contained inconsistencies, and did not overcome the strong proof of guilt presented at trial. Id. at 869-70; see Stockton v. Angelone, 70 F.3d 12, 14 (4th Cir. 1995) (affidavits of non-eyewitnesses suggesting third party murdered victim do not meet significant burden of Herrera when state evidence showed that third party in jail on date of murder); Robinson v. Johnson, 151 F.3d 256, 268 (Sth Cir. 1998) (demonstration that yet another relative suffered from a related mental disorder not “truly persuasive”); Bowman v. Gammon, 85 F.3d 1339, 1343 (8th Cir. 1996) (newly discovered evidence of deal between state prosecutor and testifying codefendant did not warrant relief), cert. denied, 117 S. Ct. 1273 (1997); Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir. 1993) (evidence that one victim of a statutory rape charge had an intact hymen insignificant since defendant’s were convicted based on evidence of oral sex); Stafford v. Saffle, 34 E3d 1557, 1561-62 (lOth Cir. 1994) (same). The AEDPA raises several barriers that might apply in such capital cases. See Capital Cases in this section. Where the petitioner predicates her claim of actual innocence on an asserted constitutional error at trial, however, the miscarriage of justice inquiry is governed by the standard of Murray v. Carrier, 477 U.S. 478 (1986), discussed in Exhaustion and Procedural Bar in this section. 2768. 428 U.S. 465 (1976).

2769. Id. at 481-82. In Stone, the Court reasoned that the deterrent purpose of the exclusionary rule is not advanced by federal habeas litigation potentially far removed in time and space from the alleged police misconduct. Id. at 493-95. Compare Capellan v. Riley, 975 F.2d 67, 70-72 (2d Cir. 1992) (review of Fourth Amendment claim barred by full and fair opportunity to litigate claim in state court when petitioner did not allege denial of such opportunity); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994) (review of Fourth Amendment claim of illegal search and seizure after interrogation barred when petitioner had full and fair opportunity to litigate claim in state courts); Andrews v. Collins, 21 F.3d 612, 631 (5th Cir. 1994) (review of Fourth Amendment claim barred by full and fair opportunity to litigate claim in state court when, although state court refused evidentiary hearing, court allowed bill of exceptions, and post conviction court found that evidence developed through exception established search and seizure as lawful); Terry v. Martin, 120 F.3d 661, 663 (7th Cir. 1997) (review of Fourth Amendment claim barred when petitioner had opportunity to litigate claim in state court); Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997) (same), cert. denied, 118 S. Ct. 1197 (1998); Villafuerte v. Stewart, Ill F.3d

616, 627 (9th Cir. 1997) (same), cert. denied, 118 S. Ct. 860 (1998); Miranda v. Cooper, 967 F.2d 392, 401 (lOth Cir. 1992) (same) and Devier v. Zant, 3 F.3d 1445 (llth Cir. 1993) (per curiam) (review of Fourth Amendment claim of illegal arrest barred when petitioner had full and fair opportunity to litigate in state courts by raising motion to suppress and appealing denial of that motion) with United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027-29 (7th Cir. 1993) (review of Fourth Amendment claim not barred when petitioner did not have opportunity to establish standing for illegal search because of unforeseeable procedural rule preventing state court from reaching merits of claim) and Craig v. Singletary, 80 F.3d 1509, 1513 (llth Cir. 1996) (review of Fourth Amendment claim not barred when state court did not address petitioner’s Fourth Amendment claim since petitioner did not receive full and complete hearing), cert. denied, 118 S. Ct. 1323 (1998).

2770. Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986). In Kimmelman, the petitioner alleged ineffective assistance of counsel in the litigation of his Fourth Amendment claim. Id. at 371. The Court stated that although the Fourth Amendment claim was one element of proof of the Sixth Amendment claim, “the two claims have separate identities and reflect different constitutional values.” Id. at 375. The Court found that Stone’s reasoning could not be applied in this situation because the Sixth Amendment right to counsel is a fundamental constitutional right whereas the Fourth Amendment’s exclusionary rule is merely a prophylactic measure. Id. at 375-76. Moreover, the Court noted that “[I]n general, no comparable, meaningful opportunity exists for the full and fair litigation of a habeas petitioner’s ineffective assistance claims at trial and on direct review.” Id. at 378-79 n. 3. 2771. Antiterrorism Act, supra note 1.

2772. Antiterrorism Act, supra note 1, 2254(d)(1): “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Compare Ayala v. Speckard, 89 F.3d 91, 97 (2d Cir. 1996) (habeas relief available when courtroom closure violate petitioner’s Sixth Amendment right to public trial under Waller v. Georgia, 467 U.S. 39, 48 (1984)), cert. denied, 118 S. Ct. 2380 (1998) and Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996) (habeas relief available when defense counsel’s failure to follow up on exculpatory report regarding petitioner’s semen samples constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 117 S. Ct. 1329 (1997) with Green v. French, 143 F.3d 865, 877 (4th Cir. 1998) (habeas relief not available where ruling that there is no constitutional right to allocution not an unreasonable application of federal law); and Nobles v. Johnson, 127 F.3d 409, 418 (Sth Cir. 1997) (habeas relief not available where state court did not erroneously apply test for ineffective assistance of counsel), cert. denied, 118 S. Ct. 1845 (1998).

Subject to certain exceptions, the law must be clearly established at the time of petitioner’s trial. See infra notes 2776-77 and accompanying text.

Courts have different interpretations of the meaning of “contrary to” and “unreasonable application” of federal law and its affect on the degree to which AEDPA hampers the federal habeas courts ability to independently interpret federal law. One court has defined “contrary to” as opposite to and irreconcilable with the conclusion reached in a case that shares facts indistinguishable in any material way while “unreasonable application” applies only when the precedent arises from a different context and the application fails to apply the principle correctly. Green v. French, 143 F.3d 865, 870 (4th Cir. 1998) (habeas relief denied where denial of defendant’s request for allocution not contrary to or an unreasonable application of federal law). Another approach is to drop the “contrary to” clause in the absence of a governing rule. See O’Brien v. Dubois, 145 F.3d 16, 21-24 (lst Cir. 1998) (habeas relief denied where trial judge’s limitation on the scope of recross examination was not an unreasonable application of federal law). Still another approach is to bifurcate the language and apply “contrary to” to issues of law and “unreasonable application” to mixed questions of law and fact. See Drinkard v. Johnson, 97 F.3d 751, 767-8 (5th Cir. 1996) (habeas relief denied where instruction at penalty phase did not preclude jury from considering intoxication as mitigating factor was not contrary to or an unreasonable application of federal law), cert. denied, 117 S. Ct. 1114 (1997); Neeley v. Nagle, 138 F.3d 917, 925 (llth Cir. 1998) (habeas relief denied where ineffective assistance of counsel claim was not contrary to or an unreasonable application of federal law).

2773. Antiterrorism Act, supra note 1, 2254 (d)(2): “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

2774. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) (“a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final”); Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (“a case announces a `new rule’ when it breaks new ground or imposes a new obligation on the States or the Federal Government”); Butler v. McKellar, 494 U.S. 407, 415 (1990) (“a rule must be classified as ‘new’ if it was susceptible to debate among reasonable minds, [and it] could not have been dictated by precedent”). 2775. 489 U.S. 288 (1989).

2776. In Butler v. McKellar, 494 U.S. 407, 415 (1990), the Court held that Arizona v. Roberson, 486 U.S. 675 (1988), holding that the invocation of the right to counsel during police interrogation about one crime precluded further questioning about other criminal activity, constituted a new rule under Teague. The Butler Court concluded that the announcement that a decision is “within the logical compass of” or “controlled by” a prior decision was not conclusive of deciding whether the current decision is a “new rule.” Id. The Butler Court decided that Roberson announced a “new rule” since the outcome of Roberson “was susceptible to debate among reasonable minds,” as evidenced by the difference of opinion among lower courts addressing the issue. Butler, 494 U.S. at 415.

See also Gray v. Netherland, 116 S. Ct. 2074, 2084 (1996) (ruling that due process requires petitioner receive more than one day’s notice of evidence used by prosecution when defense counsel did not request continuance would constitute new rule because previous cases did not compel such a requirement); Caspari v. Bohlen, 510 U.S. 383, 393 (1994) (application of Double Jeopardy Clause to noncapital sentencing proceeding constituted new rule because court had not previously applied Clause to noncapital sentencing and several previous cases pointed in opposite direction); Gilmore v. Taylor, 508 U.S. 333, 344 (1993) (new rule established by Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), requiring express instructions that jury could not return murder conviction if it found defendant possessed mitigating mental state, because decision not compelled or dictated by precedent); Graham v. Collins, 506 U.S. 461, 477 (1993) (ruling that Texas capital sentencing scheme prevented jury from giving adequate effect to mitigating evidence as required by Eighth Amendment constitutes new rule because likely that not all reasonable jurists would have deemed themselves compelled by precedent); Sawyer v. Smith, 497 U.S. 227, 236 (1990) (new rule established by Caldwell v. Mississippi, 472 U.S. 320 (1985), holding that Eighth Amendment prohibits imposing death sentence when sentencer led to belief that responsibility for appropriateness of death sentence rests elsewhere, because of disagreement over its foundation in Eighth Amendment jurisprudence when decided); Saffle v. Parks, 494 U.S. 484, 494-95 (1990) (decisions holding that Eighth Amendment requires jury to consider mitigating circumstances in death sentences constitute new rule because reasoning not dictated by existing precedent); cf. Stringer v. Black, 503 U.S. 222, 237 (1992) (new rule not established in Maynard v. Cartwright, 486 U.S. 356 (1988), and Clemons v. Mississippi, 494 U.S. 738 (1990), invalidating vague and aggravating factors in weighing states, for either weighing or non weighing state because cases merely drew from existing precedent); Penry v. Lynaugh, 492 U.S. 302, 314-15 (1989) (ruling that Texas capital sentencing scheme required special issues be interpreted broadly enough to permit sentencer to consider all relevant mitigating evidence would not constitute new rule because consistent with previous Eighth Amendment rulings).

Appellate courts have also applied the Teague new rule test. Compare Flamer v. Delaware, 68 F.3d 710, 724 (3d Cir. 1995) (new rule established in Michigan v. Jackson, 475 U.S. 625 (1986), invalidating waiver of right to counsel when police initiate investigation after defendant asserts existing attorneyclient relationship at arraignment, because rule as applied not dictated by existing precedent did not apply retroactively); Bilzerian v. U.S., 127 F.3d 237, 240 (2d Cir. 1997) (new rule established by United States v. Gaudin, 515 U.S. 506 (1995) did not apply retroactively), petition for cert. filed, 66 U.S.L.W. 3774 (May 26, 1998) (No. 97-1892); United States v. Martinez, 139 F.3d 412, 417-19 (4th Cir. 1998) (new rule established in Crosby v. U.S., 506 U.S. 255 (1993) prohibiting trial in absence of defendant did not apply retroactively), cert. denied, 119 S. Ct. 807 (1999); Echlin v. LeCureux, 995 F.2d 1344, 1351 (6th Cir. 1993) (new rule established by decision that white defendants may challenge removal of white jurors as racially discriminatory because not dictated by existing precedent and lower courts had found to the contrary); Jones v. Page, 76 F.3d 831, 853 (7th Cir.) (new rule established by decisions invalidating waiver of right to counsel when police initiate interrogation of suspect with existing attorney-client relationship because existing precedent established different rule); Miller v. Lockhart, 65 F.3d 676, 685 (8th Cir. 1995) (new rule established in McKoy v. North Carolina, 494 U.S. 433 (1990), invalidating

mitigating circumstances that require unanimity, because established new rule even though prior decisions inform, or even control or govern, claim’s analysis); Jones v. Gomez, 66 F.3d 199, 202 (9th Cir. 1995) (new rule established in Powers v. Ohio, 499 U.S. 400 (1991), applying Equal Protection analysis to cross-racial peremptory challenge, did not apply retroactively because existing precedent applied to same-race claims); Nguyen v. Reynolds, 131 F.3d 1340, 1352 (lOth Cir. 1997) (same), cert. denied, 119 S. Ct. 128 (1998) and Glock v. Singletary, 65 F.3d 878, 889 (llth Cir. 1995) (new rule established in Espinosa v. Florida, 505 U.S. 1079 (1992), holding that trial judge in bifurcated sentencing procedure may not cure jury’s consideration of invalid aggravating circumstances, did not apply retroactively because decision not compelled by federal or state precedent) with Ciak v. U.S., 59 F.3d 296, 303 (2d Cir. 1995) (new rule not established in U.S. v. Levy, 25 F.3d 146 (2d Cir. 1994), holding that reversal automatic when trial court ignored possible conflict, because it relied on several precedents); United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998) (new rule not established in Kyles v. Whitney, 514 U.S. 419 (1995) applying harmless error standard to failure to disclose exculpatory evidence); Rodden v. Delo, 143 F.3d 441, 445 (8th Cir.) (new rule not established in Caldwell v. Mississippi, 472 U.S. 320 (1985) about the appropriateness of deciding the death penalty), cert. denied, 119 S. Ct. 452 (1998) and McDowell v. Calderon, 130 F.3d 833, 841 (9th Cir. 1997) (new rule not established in the decision that a jury’s misperception of what could be considered mitigating evidence resulted in a constitutional violation), cert. denied, 118 S. Ct. 1575 (1998).

2777. A conviction becomes final once the defendant exhausts all direct appeals and once either the time for filing a petition for certiorari on direct review elapses or the Supreme Court denies a petition for certiorari on direct review. Teague v. Lane, 489 U.S. 288, 295 (1989) (citing Allen v. Hardy, 478 U.S. 255, 258 n.l (1986) (per curiam)); see Penry v. Lynaugh, 492 U.S. 302, 314-315 (1989) (denial of certiorari makes conviction final; therefore, petitioner may use Supreme Court rulings decided after his conviction but before denial of his writ for certiorari); Winsett v. Washington, 130 F.3d 269, 275 (7th Cir. 1997) (state conviction and sentence became final for purposes of retroactivity analysis in habeas case when petitioner failed to file petition for writ of certiorari within 90 days).

2778. Teague, 489 U.S at 310. Although the Teague non-retroactivity doctrine is a threshold question in a federal habeas case and the court may raise it sua sponte, the court is only required to apply it if it is raised by the state. Caspari v. Bohlen, 510 U.S. 383, 388 (1994). See Eaglin v. Welborn, 57 F.3d 496, 498-99 (7th Cir. 1995) (declining to apply Teague where state waived defense by not arguing it before district court).

2779. Teague, 489 U.S. at 307 (quoting Mackey v. U.S., 401 U.S. 667, 692 (1971) (Harlan, J., concurring & dissenting)). The exception also applies to new rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Penry, 492 U.S. at 330 (stating that if the court were to hold that the Eighth Amendment prohibits executing retarded defendants it would constitute a new rule that would apply retroactively because it prohibits a certain category of punishment due to status); see U.S. v. Sood, 969 F.2d 774, 775 (9th Cir. 1992) (petitioners entitled to application of decision holding statute under which convicted inapplicable to territory of Guam because fundamentally unfair “to allow punishment to continue for conduct the law did not make criminal”). 2780. Teague, 489 U.S. at 307 (quoting Mackey v. U.S., 401 U.S. 667, 693 (1971) (Harlan, J., concurring & dissenting)). In Sawyer, the Court held that a rule qualifying under this exception must “not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding.” 497 U.S. at 242 (quoting Teague, 489 U.S. at 311). Compare Sanders v. Sullivan, 900 F.2d 601, 606 (2d Cir. 1990) (dictum) (new rule allowing consideration of recanted testimony satisfies Teague exception because decision affected “fundamental fairness”); Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994) (new rule established by Sullivan v. Louisiana, 508 U.S. 275 (1993), deficient reasonable doubt instruction that effectively breaches right to jury trial violates due process, satisfies Teague exception) and Nutter v. White, 39 F.3d 1154, 1158 (llth Cir. 1994) (new rule under Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), jury instruction using phrases “grave doubt” and “substantial doubt” to define reasonable doubt violates due process, satisfies both accuracy and fundamental fairness prongs of Teague exception) with Goeke v. Branch, 514 U.S. 115, 120 (1995) (per curiam) (new rule prohibiting dismissal of appeal when appellant’s pre-appeal flight had no adverse effect on appellate process not within Teague exception because not “so central to an accurate determination of innocence or guilt”); Ainsworth v. Calderon, 138 F.3d 787, 796 (9th Cir. 1998) (claim that district court erred in rejecting claim of improperly admitted testimony would announce a new rule but would not be a

watershed rule) and Spaziano v. Singletary, 36 F.3d 1028, 1043 (llth Cir. 1994) (new rule curtailing use of hypnotically refreshed testimony not encompassed by Teague exception because rule does not “alter our understanding of bedrock procedural elements”).

The Supreme Court held that Teague only applies to procedural rules and is inapplicable in situations in which the Supreme Court decides the meaning of a criminal statute enacted by Congress. See Bousley v. U.S., 118 S. Ct. 1604, 1610 (1998). 2781. 506 U.S. 364 (1993).

2782. In Fretwell, the Court noted that “the State will benefit from our Teague decision in some federal habeas cases, while the habeas petitioner will not.” Id. The Court reasoned that a habeas petitioner has neither an interest in the finality of a state court judgment nor any claim of reliance on past judicial precedent as the basis for her actions, concluding that its ruling is a “logical limitation of Teague to the circumstances which gave rise to it.” Id at 372. Applying this standard, the Court found it proper to apply the new rule adopted in Strickland v. Washington, supra note 2757, to reject petitioner’s ineffective assistance of counsel claim. Id. at 371.

2783. Antiterrorism Act, supra note 1, 2254(b)(1)(A). State remedies are not deemed exhausted until the prisoner utilizes all procedures available under state law to raise her claim. Antiterrorism Act, supra note 1, 2254(c). The prisoner satisfies the exhaustion requirement if she properly pursues a claim throughout the entire appellate process of the state. Compare Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-03 (1984) (exhaustion requirement satisfied by presentation of claim on appeal to state supreme court from denial of motion to dismiss); Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996) (exhaustion requirement satisfied only by presentation of claim to highest state court); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (exhaustion requirement satisfied by filing required applications in state appellate and supreme courts); Boerckel v. O’Sullivan, 135 F.3d 1194, 1202 (7th Cir.) (exhaustion requirement satisfied by presentation of claims in direct appeal to state appellate court, even though not included in petition for leave to appeal to state supreme court), cert. granted, 119 S. Ct. 508 (1998); Wayne v. Missouri Bd. of Probation & Parole, 83 F.3d 994, 996 (8th Cir. 1996) (exhaustion requirement satisfied when petitioner presented federal claims in full round of litigation before state trial and appellate courts even though relitigation in state forum through another procedural device possible); McGuire v. Estelle, 902 F.2d 749, 752-53 (9th Cir. 1990) (exhaustion requirement satisfied even though two of four claims not presented on appeal to state supreme court, when claims briefed and argued on direct appeal before state appeals court), rev’d on other grounds, 502 U.S. 62 (1991) and Smith v. White, 719 F.2d 390, 391-92 (llth Cir. 1983) (per curiam) (exhaustion requirement satisfied even though claim not presented to state supreme court on direct appeal when state law limited state supreme court’s jurisdiction so as to make intermediate appellate court “end of the road” for most appeals) with Matthews v. Evatt, 105 F.3d 907, 912 (4th Cir.) (exhaustion requirement not satisfied when petitioner failed to seek review by state supreme court), cert. denied, 118 S. Ct. 102 (1997); Self v. Collins, 973 F.2d 1198, 1208 (Sth Cir. 1992) (exhaustion requirement not satisfied when petitioner failed to challenge legality of arrest in state court); Murray v. Wood, 107 F.3d 629, 631-632 (8th Cir. 1997) (exhaustion requirement not satisfied when petitioner failed to raise ineffective counsel claim in postconviction proceeding, where state law permitted him to do so even though claim not raised on direct appeal); Jennison v. Goldsmith, 940 F.2d 1308, 1310 (9th Cir. 1991) (per curiam) (exhaustion requirement not satisfied when petitioner failed to seek discretionary review by state supreme court because, although review not guaranteed, “it is nevertheless a state remedy that remains available”) and Dulin v. Cook, 957 F.2d 758, 759 (lOth Cir. 1992) (exhaustion requirement not satisfied when case transferred to higher state court because transfer process was overflow mechanism rather than review on merits).

If the state courts considered a petitioner’s claim on direct appeal, initiation of a collateral attack in state court is not required even if a state postconviction remedy would permit reconsideration of the claim. Brown v. Allen, 344 U.S. 443, 447 (1953); see Castille v. Peoples, 489 U.S. 346, 350 (1989) (dictum) (to force petitioner to exhaust other state remedies after fairly presenting claim to highest state court would be “to mandate recourse to state collateral review whose results have effectively been predetermined, or permanently to bar from federal habeas prisoners in States whose postconviction procedures are technically inexhaustible”); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1998) (to satisfy exhaustion requirement, petitioner who raised claim in direct appeal need not raise it again in state postconviction proceeding), petition for cert. filed (Apr. 23, 1998) (No. 97-8812); Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir. 1992) (dictum) (to satisfy exhaustion requirement, petitioner need not raise

claim again in state postconviction proceeding once already raised and decided on merits on direct appeal); Bowser v. Boggs, 20 F.3d 1060, 1063 (lOth Cir. 1994) (same). But see Byrnes v. Vose, 969 F.2d 1306, 1308-09 (Ist Cir. 1992) (exhaustion requirement not satisfied when petitioner failed to establish that it would be futile to conduct further collateral proceedings to review his conviction in state courts); cf Cawley v. DeTella, 71 F.3d 691, 694-95 (7th Cir. 1995) (exhaustion requirement not satisfied when petitioner failed to appeal denial of postconviction relief, even though petitioner could have progressed immediately from direct appeal to federal habeas claim without ever seeking postconviction relief). The burden of proving that a federal habeas claim has been exhausted lies with the petitioner. See Matthews, 105 F.3d at 911 (citing Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994)). 2784. Picard v. Connor, 404 U.S. 270, 276-77 (1971) (“state prisoner [must] present the state courts with the same claim he urges upon the federal courts”); accord Anderson v. Harless, 459 U.S. 4, 6 (1982) (“[T]he habeas petitioner must have `fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim.”); Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972) (“[The] question . . . is whether any of petitioner’s claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim.”) Compare Scarpa v. Dubois, 38 E3d 1, 7 (Ist Cir. 1994) (exhaustion requirement satisfied when petitioner presented state law claim in state court functionally identical to federal law claim of ineffective assistance of counsel); Dorsey v. Kelly, 112 F.3d SO, 52-54 (2d Cir. 1997) (exhaustion requirement satisfied where petitioner, though represented by counsel, presented claim of ineffective assistance of previous counsel via pro se supplemental brief); Sullivan v. Cuyler, 723 F.2d 1077, 1083 (3d Cir. 1983) (exhaustion requirement satisfied when dissenting opinion by state supreme court judge specifically addressed petitioner’s federal constitutional claim, even though majority opinion did not); Pope v. Netherland, 113 F.3d 1364, 1368 (4th Cir.) (exhaustion requirement satisfied when petitioner’s state court challenge to sufficiency of evidence held necessarily a due process challenge to conviction), cert. denied, 118 S. Ct. 16 (1997); Shute v. Texas, 117 F.3d 233, 237 (Sth Cir. 1997) (exhaustion requirement satisfied where petitioner did not raise double jeopardy claim on direct appeal, but did raise claim in pre-trial state habeas writ, and claim also reviewed twice by state court of appeals); Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (per curiam) (exhaustion requirement satisfied if, on remand, district court finds claim presented in federal court “substantially equivalent” to claim of prejudice due to trial venue presented in state court); Bocian v. Godinez, 101 F.3d 465, 470 (7th Cir. 1996) (exhaustion requirement satisfied when petitioner’s state court briefs consistently cite U.S. Supreme Court precedent and state cases that relied on U.S. Supreme Court cases for analysis of same constitutional issue presented in federal habeas claim); Hill v. Lockhart, 28 F.3d 832, 834-35 (8th Cir. 1994) (exhaustion requirement satisfied even though claim not precisely articulated to state court, but instead in paragraph focusing on different, related claim), and Reutter v. Crandel, 109 F.3d 575, 577-78 (9th Cir.) (exhaustion requirement satisfied when petitioner adequately presented Confrontation Clause claim by including in state supreme court appeal reference to right to fair confrontation of witness and citing key federal cases decided on Confrontation Clause basis), cert. denied, 118 S. Ct. 142 (1997) with Washington v. James, 996 F.2d 1442, 1446 (2d Cir. 1993) (exhaustion requirement not satisfied when petitioner presented different questions to state courts on direct appeal and in federal habeas petition); Doctor v. Walters, 96 F.3d 675, 687-80 (3d Cir. 1996) (exhaustion requirement not satisfied when petitioner’s direct appeal included claim of inadequate notice of trial in absentia, but later federal habeas claim predicated on allegation that trial in absentia never occurred); Matthews v. Evatt, 105 F.3d 907, 912 (4th Cir.) (exhaustion requirement not satisfied when petitioner’s federal habeas claim that state decision to seek death penalty racially motivated held not equivalent to earlier pre-trial motion that state death penalty violated Equal Protection Clause), cert. denied, 118 S. Ct. 102 (1997); Thomas v. Collins, 919 F.2d 333, 334-35 (Sth Cir. 1990) (exhaustion requirement not satisfied when petitioner raised claims of ineffective counsel disjunctively, not allowing state courts sufficient opportunity to interpret state statute at issue); Kilby v. Jones, 809 F.2d 324, 325 (6th Cir. 1987) (exhaustion requirement not satisfied for federal habeas claim of ineffective assistance based upon counsel’s general conduct at trial when petitioner only presented state courts with issue of adequacy of counsel’s investigation); Bocian v. Godinez, 101 F.3d 465, 469-70 (7th Cir. 1996) (exhaustion requirement not satisfied when petitioner’s state court brief refers to Fourteenth Amendment only once and single Supreme Court case cited not used to illustrate same constitutional principle asserted in federal habeas claim); McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (exhaustion requirement not satisfied when petitioner bases state habeas claim solely on state law grounds, despite claiming to federal district court that “state laws are in essence restatements of federal constitution in different words”) and Hill v. Jones, 81 F.3d 1015, 1029 (llth Cir.) (exhaustion requirement not satisfied when petitioner first raised claim of ineffective assistance of counsel as cause in motion to amend final judgment of district court on habeas review), cert. denied, 117 S. Ct. 967 (1997).

In Duncan v. Henry, 115 S. Ct. 887 (1995) (per curiam), the Supreme Court restricted the ability of lower courts to rule in favor of a petitioner who fails to frame the issue as one of federal constitutional law at the state court level. Id. at 888. The Court noted that, “[i]f state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Id. Compare Henry, 115 S. Ct. at 888 (exhaustion requirement not satisfied when petitioner failed to apprise state courts that evidentiary ruling of which he complained not only violated state law, but denied due process of law under Fourteenth Amendment); Satcher v. Pruett, 126 F.3d 561, 573 (4th Cir.) (exhaustion requirement not satisfied when petitioner failed to mention federal constitution or cite any cases examining right to be tried separately under due process clause, but instead, mentioned only right to be tried separately under Virginia law), cert. denied, 118 S. Ct. 595 (1997); Yohey v. Collins, 985 F.2d 222, 226 (Sth Cir. 1993) (exhaustion requirement not satisfied when due process claim that state trial court’s evidentiary rulings rendered trial fundamentally unfair not characterized as due process claim before state courts); Franklin v. Rose, 811 F.2d 322, 325-26 (6th Cir. 1987) (exhaustion requirement not satisfied when petitioner presented claim that refusal to admit medical records violated due process to state courts exclusively as violation of state evidentiary law); Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (exhaustion requirement not satisfied when petitioner inserted words “due process” in habeas claim but failed to characterize claim as due process violation before state court); Frederickson v. Wood, 87 F.3d 244, 245 (8th Cir. 1996) (exhaustion requirement not satisfied when petitioner failed to refer specifically to federal constitutional right or relevant case law in claim before state court) and Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998) (exhaustion requirement not satisfied when petitioner argued that jury instruction omitted mens rea requirement for aiding and abetting, but did not argue that omission violated U.S. Constitution) with Beauchamp v. Murphy, 37 F.3d 700, 704 (lst Cir. 1994) (exhaustion requirement satisfied when petitioner fairly presented federal equal protection claim, as state court not misled “merely because reference to federal equal protection occurred at end of argument instead of beginning”); Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997) (exhaustion requirement satisfied when petitioner asserted deprivation of “constitutional right to counsel” and directed state appellate court’s attention to relevant Supreme Court precedents so as to adequately alert court to “constitutional dimensions” of claim); Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230-33 (3d Cir. 1992) (exhaustion requirement satisfied for due process claim when petitioner alleged insufficient evidence in state courts although talismanic phrase “due process of law” not invoked); Verdin v. O’Leary, 972 F.2d 1467, 1479-80 (7th Cir. 1992) (exhaustion requirement satisfied for due process claim when petitioner relied upon state cases applying constitutional analysis or referring to Constitution and presented fact pattern that fell within mainstream of constitutional litigation); Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir. 1992) (exhaustion requirement satisfied for due process claim when petitioner challenged sufficiency of evidence to support conviction because claim necessarily constituted due process challenge); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996) (exhaustion requirement satisfied when petitioner specifically argued both due process and ineffective assistance of counsel violations) and Bowser v. Boggs, 20 F.3d 1060, 1063 (lOth Cir. 1993) (exhaustion requirement satisfied when federal nature of claims fairly presented even though the term “federal” not used in state petitions). In some instances, a state supreme court’s refusal to rule on a petitioner’s claim for invalid prudential or procedural reasons will be construed by the federal habeas court as exhaustion of the claim. Compare Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (exhaustion requirement satisfied when petitioner raised ineffective assistance claim within state postconviction petition that was denied by state courts at all levels because state appellate and supreme court actions based upon erroneous procedural grounds); Kim v. Villalobos, 799 F.2d 1317, 1319-20 (9th Cir. 1986) (exhaustion requirement satisfied when state supreme court’s dismissal of claim for lack of particularity amounted to holding claims themselves defective) and Hollis v. Davis, 941 F.2d 1471, 1475 (llth Cir. 1991) (exhaustion requirement satisfied when state courts neither reviewed merits of petitions nor appointed counsel to assist pro se petitioner to overcome problems in processing caused by petitioner’s inscrutable handwriting and essential illiteracy) with Varnell v. Young, 839 F.2d 1245, 1248 (7th Cir. 1988) (exhaustion requirement not satisfied by state appellate court’s remand to state trial court to repair inadequate factual record on petitioner’s claim) and McQuown v. McCartney, 795 F.2d 807, 808 n.l, 809 (9th Cir. 1986) (per curiam) (exhaustion requirement not satisfied when state supreme court dismissed petitioner’s claims on procedural ground that claims contained only conclusory allegations and opportunity remained to obtain state ruling on merits).

2785. Smith v. Digmon, 434 U.S. 332, 333-34 (1978) (per curiam); see Swanger v. Zimmerman, 750 F.2d 291, 295-96 (3d Cir. 1984) (exhaustion requirement satisfied when issue presented to state court even if not specifically addressed in opinion); Lewis v. Borg, 879 F.2d 697, 698 (9th Cir. 1989) (exhaustion requirement satisfied when state supreme court denied state habeas petition without comment).

2786. Castille v. Peoples, 489 U.S. 346, 351 (1989). The Court in Peoples noted that although the denial of the petition for allocatur did not alone exhaust petitioner’s claim, “[t]he requisite exhaustion may nonetheless exist . . . if it is clear that respondent’s claims are now procedurally barred under Pennsylvania law.” Id.

2787. Antiterrorism Act, supra note 1, 2254(b)(3). See Gray v. Netherland, 99 F.3d 158 (4th Cir.) (state free to raise procedural bar for first time at federal appellate level when petitioner raised, for first time, federal habeas claim of state misrepresentation before U.S. Supreme Court), cert. denied, 117 S. Ct. 1102 (1997).

Some circuits have held that a federal court hearing a habeas petition is not required to accept a state’s waiver of exhaustion, and may require exhaustion. See Christy v. Horn, 115 F.3d 201, 207 (3d Cir. 1997); Shute v. Texas, 117 F.3d 233, 237 (Sth Cir. 1997); and Thompson v. Wainwright, 714 F.2d 1495, 1500-01 (llth Cir. 1983).

2788. Federal courts determine the futility of seeking a state remedy based upon the totality of circumstances surrounding each petition. Compare Doctor v. Walters, 96 F.3d 675, 681-82 (3d Cir. 1996) (exhaustion requirement not excused where state court would likely find petitioner’s claim under state postconviction relief statute waived, but possibility remains that petitioner’s claim could be reviewed under statute’s “miscarriage of justice” exception); Meadows v. Legursky, 904 F.2d 903, 909 (4th Cir. 1990) (en banc) (exhaustion requirement not excused when possible that state court could make exception to procedural default rule and reach merits of petitioner’s claim) and Givens v. Green, 12 F.3d 1041, 1044 (llth Cir. 1994) (per curiam) (exhaustion requirement not excused when unclear whether procedural bars would be excused in state court) with Allen v. Attorney Gen. of Me., 80 F.3d 569, 573 (Ist Cir. 1996) (exhaustion requirement excused when recent independent decision by highest state court clearly rendered appellate review futile); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (exhaustion requirement excused when clear that claims would be deemed procedurally barred if presented in state court); Laswell v. Frey, 45 F.3d 1011, 1014 (6th Cir. 1995) (exhaustion requirement excused when state requirement for retrial prior to consideration of habeas claim “would require [petitioner] to sacrifice one of the protections of the Double Jeopardy Clause”); Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir. 1998) (exhaustion requirement excused as to double jeopardy claim when petitioner did not appeal his conviction because state supreme court had previously ruled that double jeopardy clause did not preclude prosecution and Supreme Court denied petition for certiorari from that judgment, and petitioner was foreclosed from further pursuing claim in federal courts); Hawkins v. Higgins, 898 F.2d 1365, 1367 (8th Cir. 1990) (exhaustion requirement excused when petitioner raised same issue of law as another state prisoner to whom state courts denied relief); Gardner v. Pitchess, 731 F.2d 637, 640 (9th Cir. 1984) (exhaustion requirement excused when clear that state court would not reinstate petitioner’s appeal); Hoxsie v. Kerby, 108 F.3d 1239, 1242-43 (lOth Cir.) (exhaustion requirement excused where belated application would result in additional litigation of meritless claims), cert. denied, 118 S. Ct. 126 (1997) and Hollis v. Davis, 941 F.2d 1471, 1473-75, 1479 (llth Cir. 1991) (exhaustion requirement excused when state “admitted” futility of further resort to state courts by failing to alleviate obstacles to state review presented by petitioner’s pro se status, poor handwriting and essential illiteracy). Criticism of the “futility doctrine” focuses on its potential as a method for bypassing state courts; accordingly, some courts are reluctant to apply the exception. See Engle v. Isaac, 456 U.S. 107, 130 (1982) (if defendant perceives constitutional claim and believes it may find favor in federal courts, he may not bypass state courts simply because they may be unsympathetic to the claim); Kornahrens v. Evatt, 66 F.3d 1350, 1358-59 (4th Cir. 1995) (futility doctrine did not excuse petitioner from failing to raise constitutional objection during state court trial even though same court rejected similar claims in the past because “the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object”); Maynard v. Lockhart, 981 F.2d 981, 985 (8th Cir. 1992) (petitioner’s belief that asserting ineffective assistance of counsel claim in post-conviction petition would have been futile cannot, by itself, establish cause for omitting claims).

2789. Granberry v. Greer, 481 U.S. 129, 135-36 (1987). In Granberry, the Court stated that “[a]lthough there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to [federal] appellate consideration of his claims.” Id. at 131. The Court suggested that if the petition involves an unresolved issue of fact or state law, requiring complete exhaustion would serve the values of comity and efficiency. Id. at 134-35. If, however, the

petitioner’s federal claim is clearly without merit or if it is evident that a miscarriage of justice occurred, the court of appeals should hold that the state waived the nonexhaustion defense. Id. at 135. In rare instances, federal courts dispense with the exhaustion requirement because of delay on the part of the state or manifest injustice to the petitioner. Compare Brooks v. Jones, 875 F.2d 30, 31-32 (2d Cir. 1989) (exhaustion requirement excused when eight-year delay, during which state-appointed attorneys neglected to file appeals, illustrated inadequacy of state remedies); Story v. Kindt, 26 F.3d 402, 406 (3d Cir. 1994) (exhaustion requirement excused when state proceedings delayed 11 years due to inadequate docket control and petitioner’s poor legal representation and state failed to meet burden to show why federal court should not excuse delay); Jackson v. Duckworth, 112 F.3d 878, 880-81 (7th Cir.) (exhaustion requirement excused when state cannot justify three-year delay in ruling on motion for discretionary collateral appeal), cert. denied, 118 S. Ct. 380 (1997); Walters v. McCormick, 122 F.3d 1172, 1174 n.l (9th Cir. 1997) (exhaustion requirement excused when failure to exhaust due in part to federal district court ruling claim exhausted and state statute of limitations ran while petition considered by federal courts), cert. denied, 118 S. Ct. 1389 (1998) and Carpenter v. Young, 50 F.3d 869, 871 (lOth Cir. 1995) (exhaustion requirement excused if, on remand, state fails to justify two-year delay in adjudicating appeal) with Deters v. Collins, 985 F.2d 789, 796-97 (5th Cir. 1993) (exhaustion requirement not excused when delay not sole fault of state because petitioner refused to exercise available options to exhaust state remedies); Sceifers v. Trigg, 46 F.3d 701, 704 (6th Cir. 1995) (exhaustion requirement not excused despite ll-year delay in postconviction relief remedy when defense counsel partially responsible for delay) and Burris v. Parke, 95 F.3d 465, 468 (7th Cir. 1996) (en banc) (exhaustion requirement not excused when petitioner failed to argue explicitly premature federal habeas claim justified by state’s undue delay).

Federal courts may also dispense with the exhaustion requirement should a death row appellee’s execution appear imminent and the state courts decline a stay of execution, despite continued litigation in state courts of federal constitutional claims. See Christy v. Horn, 115 F.3d 201, 207 (3d Cir. 1997). 2790. Antiterrorism Act, supra note 1, 2254(b)(1)(B). Compare Ellman v. Davis, 42 F.3d 144, 149 (2d Cir. 1994) (exhaustion necessary despite delay when state corrective procedure, if properly followed, sufficient to protect petitioner’s rights and defense counsel partially responsible for delay), with Phillips v. Vasquez, 56 F.3d 1030, 1036 (9th Cir. 1995) (exhaustion unnecessary when greater than 15-year delay in adjudicating death sentence case rendered state corrective process ineffective to protect petitioner’s rights).

2791. Antiterrorism Act, supra note 1, 2254(b)(1).

2792. “An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.” Antiterrorism Act, supra note 1, 2254(b)(1)(A).

2793. Rose v. Lundy, 455 U.S. 509, 510 (1982) (plurality opinion). When a petitioner adds an unexhausted claim after the federal district court reaches its decision, the circuit courts, rather than dismissing the petition, may rule on the exhausted claims and refuse to rule on the unexhausted claims. See Chandler v. Jones, 813 F.2d 773, 777 n.4 (6th Cir. 1987) (appellate court not required to dismiss exhausted claim, although court dismissed unexhausted claim improperly amended to petition on appeal); Davis v. Wyrick, 766 F.2d 1197, 1204 (8th Cir. 1985) (appellate court ruled on exhausted claims, but did not consider death qualified jury claim on appeal, because claim not presented first to state or federal district courts); cf. Lacy v. Gabriel, 732 F.2d 7, 12 (Ist Cir. 1984) (when district court sua sponte ordered argument on unexhausted claim not asserted in federal habeas petition, appellate court treated unexhausted claim as nullity and reviewed only exhausted claim without ordering dismissal). 2794. Rose, 455 U.S. at 510. Mixed petitions are dismissed without prejudice, requiring exhaustion of state remedies before federal habeas review is allowed. Id. at 521. Nonetheless, the petitioner can resubmit or amend her petition to avoid dismissal. Id. at 520. Compare Ross v. Petsock, 868 F.2d 639, 642 (3d Cir. 1989) (petitioner permitted to either delete unexhausted claim or exhaust claim in state

court); Murray v. Wood, 107 F.3d 629, 632 (8th Cir. 1997) (petitioner’s claim remanded so district court may afford petitioner opportunity to dismiss unexhausted claims before district court dismisses petition without prejudice); Reutter v. Crandel, 109 F.3d 575, 578 (9th Cir. 1997) (petitioner may strike unexhausted claim and resubmit petition to district court) and Hunter v. Evans, 791 F.2d 1487, 1488 (llth Cir. 1986) (per curiam) (pro se petitioner permitted to delete unexhausted claims without presenting them to state court and to proceed with exhausted claims) with Myre v. Iowa, 53 F.3d 199, 201 (8th Cir. 1995) (petitioner’s exhausted and unexhausted claims both dismissed because petitioner did not delete unexhausted claim within time granted).

A plurality of the Rose Court warned that petitioners who delete unexhausted claims risk forfeiting consideration of those claims in subsequent federal habeas actions. 455 U.S. at 520; see Purnell v. Missouri Dep’t of Corrections, 753 F.2d 703, 710 (8th Cir. 1985) (petition may be amended to include only exhausted claim, at risk of forfeiture of unexhausted claims); Harris v. Champion, 48 F.3d 1127, 1131 ( Oth Cir. 1995) (same).

The federal court may grant the habeas petitioner a continuance while she pursues her unexhausted claims in state court. See Collins v. Lockhart, 707 F.2d 341, 344 (8th Cir. 1983) (petition held in abeyance by federal court pending pursuit of unexhausted claim in state court); Calderon v. U.S. Dist. Ct., 144 F.3d 618, 620 (9th Cir. 1997) (petition with exhausted claims held in abeyance pending petitioner’s exhaustion of unexhausted claims in state court); Thompson v. Wainwright, 714 F.2d 1495, 1499-500 (llth Cir. 1983) (petitioner granted continuance by district court until state review of habeas claims exhausted). But see Christy v. Horn, 115 F.3d 201, 207-08 (3d Cir. 1997) (for district court to waive exhaustion and hold unexhausted claims in abeyance until resolution of pending state court claims, unusual circumstances, such as petitioner’s imminent execution, must exist); Victor v. Hopkins, 90 F.3d 276, 282 (8th Cir. 1996) (petitioner granted neither abeyance nor maintenance of stay of execution until available state remedies exhausted, notwithstanding suggestion in prior cases to the contrary), cert. denied, 117 S. Ct. 1091 (1997). Although a federal habeas court may permit a continuance, it is not required to do so. See Johnson v. Moran, 812 F.2d 23, 23 (lst Cir. 1987) (per curiam) (federal habeas court did not abuse discretion in refusing to retain jurisdiction pending exhaustion of state remedies); William v. Groose, 77 F.3d 259, 262 (8th Cir. 1996) (en banc) (federal habeas court not required to hold habeas petition in abeyance pending exhaustion of state remedies). But see Fetterly v. Pasket, 997 F.2d 1295, 1301 (9th Cir. 1993) (federal habeas court abused its discretion by denying request for stay of habeas action and case remanded to allow petitioner to amend newly exhausted claims).

2795. A procedural default commonly results from a defendant’s failure to follow state rules requiring the defendant to make a contemporaneous objection to particular improprieties at trial or requiring that certain issues be raised by the defendant on appeal in the state system. See Wainwright v. Sykes, 433 U.S. 72, 72 (1977) (procedural default occurred when petitioner failed to make timely objection under state contemporaneous objection rule to admission of inculpatory statements); Brewer v. Marshall, 119 F.3d 993, 1001-03 (lst Cir. 1997) (procedural default occurred when petitioner failed to make timely objection to perceived racial discrimination during jury selection), cert. denied, 118 S. Ct. 1172 (1998); Reyes v. Kean, 118 F.3d 136, 137-140 (2d Cir. 1997) (procedural default occurred when petitioner failed to raise ineffective assistance of counsel claim before state courts); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996) (procedural default occurred when petitioner forfeited right to state appellate review of lower court ruling in state collateral relief proceeding); O’Dell v. Netherland, 95 F.3d 1214, 1240-42 (4th Cir. 1996) (procedural default occurred when petitioner appealed state court dismissal of habeas claim by filing “assignment of error” with state supreme court, instead of required “petition for appeal,” where by time petitioner corrected filing, deadline for filing had passed), aff’d, 521 U.S. 151 (1997); Green v. French, 143 F.3d 865, 894 (4th Cir. 1998) (procedural default occurred when petitioner failed to raise claim of racial discrimination against potential jurors on direct appeal); Moawad v. Anderson, 143 F.3d 942, 947 (Sth Cir.) (procedural default occurred when petitioner failed to raise ineffectiveness of counsel claim in state collateral relief proceedings), cert. denied, 119 S. Ct. 383 (1998); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.) (procedural default occurred when petitioner failed to raise specific claim of ineffective counsel on direct appeal), cert. denied, 119 S. Ct. 348 (1998); Pitsonbarger v. Gramley, 141 F.3d 728, 736 (7th Cir.) (procedural default occurred when petitioner failed to raise ineffective counsel claim on direct appeal), cert. denied, 119 S. Ct. 448 (1998); Miller v. Lock, 108 F.3d 868, 870-71 (8th Cir. 1997) (procedural default occurred when petitioner failed to timely file postconviction motion for relief on claim of ineffective assistance of trial counsel); Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (procedural default occurred when petitioner failed to file timely notice of appeal); and Thompson v. Nagle, 118 F.3d 1442, 1450-51 (llth Cir. 1997) (procedural default occurred when petitioner failed to raise claim that state failed to prove specific intent at trial or on direct appeal), cert. denied, 118 S. Ct. 1071 (1998). But see Reynolds v. Berry, 146 F.3d 345, 349 (6th Cir. 1998) (no

procedural default where petitioner had no notice that motion to correct presentence report, which was directly related to validity of his original sentence, could be procedural bar to subsequent motion attacking newly rendered sentence and judgment); Clemmons v. Delo, 124 F.3d 944, 953-55 (8th Cir. 1997) (no procedural default where counsel refused to include all claims in appellate brief and petitioner filed motion with state supreme court for leave to file supplemental pro se brief; circuit court held petitioner’s motion, including attached pro se supplemental brief, placed issue before state’s highest court for decision on merits), cert. denied, 118 S. Ct. 1548 (1998); Jackson v. Shanks, 143 F.3d 1313, 1318-19 (lOth Cir.) (no procedural default of ineffective counsel claim when petitioner had no opportunity, at time of direct appeal, to develop facts relating to counsel’s performance, and second postconviction court did not rely on petitioner’s failure to raise claim in first postconviction petition in finding procedural default), cert. denied, 119 S. Ct. 378 (1998).

The U.S. Supreme Court has held that the federal court hearing a habeas claim is not obligated to consider sua sponte whether the habeas claim is procedurally barred, if the issue is not raised by the state. Trest v. Cain, 522 U.S. 87, 88 (1997). However, the Trest court declined to address whether a federal habeas court may consider procedural bar sua sponte, and some circuits permit such sua sponte consideration by the court. Compare Brewer v. Marshall, 119 F.3d 993, 995-98 (Ist Cir. 1997) (district court has authority to consider procedural default where petitioner failed to timely object to perceived discrimination during jury selection, and state failed to raise procedural default during federal habeas hearing until motion for reconsideration); Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (district court has authority to raise procedural default sua sponte when petioner was afforded both notice and reasonable opportunity to oppose application of procedural default doctrine in district court, and state’s alleged waiver of default was inadvertent byproduct of careless briefing, and not considered and deliberate decision); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998) (Court of Appeals may make sua sponte inquiry into whether procedural default is manifest and decide whether comity and judicial efficiency make it appropriate to consider merits of petitioner’s arguments where state has not explicitly or implicitly foregone waiver defense); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998) (district court has authority to raise procedural default issue sua sponte where issue was easily identifiable on face of petition, judicial resources would be wasted by causing petition to be served and entertaining state’s motion to dismiss, and court clearly identified defect and governing standards and gave petitioner opportunity to respond) with Smith v. Horn, 120 F.3d 400, 408-09 (3d Cir. 1997) (federal appeals court declined to address petitioner’s procedural default sua sponte when habeas relief was clearly warranted, procedural default had not been briefed by parties and doing so would have caused undue delay), cert. denied, 118 S. Ct. 1037 (1998).

2796. Harris v. Reed, 489 U.S. 255, 262 (1989). “The adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.” Id. at 264 n.10. A state procedural ground is not adequate unless it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982)). Compare Doctor v. Walters, 96 F.3d 675, 684-86 (3d Cir. 1996) (habeas review not precluded when at time of appeal no clearly established precedent required trial court to rule that petitoner’s right to appeal had been waived because he was fugitive prior to appeal); Rogers v. Scott, 70 F.3d 340, 342 (Sth Cir. 1995) (habeas review not precluded when state court, as “occasional act of grace,” did not apply rule in some instances); Warner v. U.S., 975 F.2d 1207, 1213-14 (6th Cir. 1992) (habeas review not precluded when at time of petitioner’s appeal no clearly established precedent required that ineffective assistance of counsel claims be raised on appeal); Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997) (habeas review not precluded when state claim of procedural bar based on rule established after stage of case at which petitioner could have satisfied rule); Pearson v. Norris, 52 F.3d 740, 742 (8th Cir. 1995) (per curiam) (habeas review not precluded when state rule limiting time to file postconviction relief not “firmly established” when petitioner sought relief); Calderon v. U.S. Dist. Court, 103 F.3d 72, 74-75 (9th Cir.) (habeas review not precluded when state timeliness rule for habeas petitions not firmly established nor strictly followed when petitioner sought relief), cert. denied, 117 S. Ct. 2532 (1997); Gutierrez v. Moriarty, 922 F2d 1464, 1469 (lOth Cir. 1991) (habeas review not precluded when state did not strictly or regularly follow procedural bar rule for defaulted claims of preindictment or pretrial delay) and Cochran v. Herring, 43 F.3d 1404, 1409 (llth Cir. 1996) (habeas review not precluded when state procedural bar not consistently applied in cases similar to petitioner’s) with Burks v. Dubois, 55 F.3d 712, 717 (lst Cir. 1995) (habeas review precluded when state routinely enforced and consistently applied contemporaneous objection rule); O’Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir. 1996) (habeas review precluded when state procedural rules derived from unambiguous statutes and supreme court rules are generally “firmly established”), aff’d, 521 U.S. ISI (1997); Glover v. Cain, 128 F.3d 900, 902 (Sth Cir.) (habeas review precluded when statutory time limitation for postconviction relief application regularly invoked), cert. denied, 118 S. Ct. 1811 (1998) and Sloan v. Delo, 54 F.3d 1371, 1380 (8th Cir. 1996) (habeas review precluded when state rule limiting time to file motion for ineffective assistance of counsel regularly followed).

2797. Coleman v. Thompson, 501 U.S. 722, 729-31 (1991). In Coleman, the Court held that the adequate and independent state ground doctrine bars federal habeas review when a state court refuses to address the prisoner’s federal claims because the prisoner failed to satisfy a state procedural requirement. Id. “In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism . … In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court.” Id.

2798. Id. at 732-35 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)); Harris v. Reed, 489 U.S. 255, 258-66 (1989). The petitioner in Coleman sought to appeal the state habeas court’s adverse ruling on numerous federal constitutional claims to the state supreme court. Coleman, 501 U.S. at 727. The state moved to dismiss the appeal on the ground that the petitioner failed to file notice of appeal until three days after expiration of the deadline prescribed by a state procedural rule. Id. at 727-28. After both parties filed briefs on the subject of the dismissal and on the merits of the petitioner’s claims, the state supreme court ordered dismissal of the appeal. Id. The U.S. Supreme Court found that the state supreme court’s dismissal fairly appeared to rest primarily upon state law because the dismissal motion was based solely upon the state procedural rule. Id. at 740-44. Thus, the presumption against adequate and independent state grounds did not apply, and the federal habeas court could not review the claims presented in the state habeas proceeding. Id. at 729-30, 740-44.

2799. Coleman, 501 U.S. at 733-35 (quoting Long, 463 U.S. at 1040-41). In Harris, the Supreme Court held that federal habeas review of the petitioner’s ineffective assistance claim was not precluded when the state appellate court addressed both the substantive merits and a procedural default in rejecting the claim, but did not “clearly and expressly” rest its judgment upon the procedural default. 489 U.S. at 266.

In Coleman, however, the Court held that the state court’s decision in Harris “fairly appeared to rest primarily on federal law,” and that this condition is a “predicate to the application” of the Harris “plain statement” requirement. Coleman, 501 U.S. at 733-35. Thus, the Coleman Court declined to establish a requirement that state courts provide a “clear and express statement of procedural default” in all cases, including those cases that fairly appear to rest primarily upon state law. Id. at 738-39; see Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990) (state court not required to express procedural default clearly when claims never raised at state level either on direct appeal or in collateral attack and claims procedurally barred by clear language of state statute).

The Harris “plain statement” requirement apparently must be satisfied if it is doubtful that the state’s decision is independent of the merits of a federal claim. Compare Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998) (state court dismissal did not rest upon state procedural default when unclear whether state supreme court rejected jury selection claim because it was unpreserved under state rule or because it was deemed meritless as matter of federal constitutional law); Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997) (state court dismissal did not rest upon state procedural default when no state court relied on procedural default in rejecting petitioner’s habeas claims and state did not assert procedural bar during federal habeas proceedings), cert. denied, 118 S. Ct. 1063 (1998); Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir. 1993) (state court’s dismissal did not rest upon state procedural default when state supreme court summarily denied motion without plain statement that denial based upon independent state procedural bar); Gretzler v. Stewart, 112 F.3d 992, 1002 (9th Cir. 1997) (state court’s dismissal did not rest upon state procedural default when state trial court did not clearly set forth independent and adequate state law basis and reached merits of claim on federal law grounds), cert. denied, 118 S. Ct. 865 (1998) and Cumbie v. Singletary, 991 F.2d 715, 720 (llth Cir. 1993) (state court’s dismissal did not rest upon state procedural default when state appellate court did not specifically address petitioner’s Sixth Amendment claim by finding “no merit to the remaining issues”) with Brewer v. Marshall, 119 F.3d 993, 999-1001 (lst Cir. 1997) (state court’s dismissal rested upon state procedural default when basis for state appeals court opinion unclear but record indicates state trial court denial of petitioner’s motion for new trial based on petitioner’s failure to timely object to perceived discrimination in jury selection); Wedra v. Lefevre, 988 F.2d 334, 339 (2d Cir. 1993) (state court’s dismissal rested upon state procedural default when court denied motion because untimely and stated that “[i]f this application . . . was timely, this court . . . would have denied same on the merits”); Caswell v. Ryan, 953 F.2d 853, 857-60 (3d Cir. 1992) (state court’s dismissal rested upon state procedural default when unexplained denial by state supreme court of petitioner’s nunc pro tunc petition could not be read to rest primarily upon federal grounds); Smith v. Dixon, 14 F.3d 956, 971 (4th Cir. 1994) (en banc) (state court’s dismissal rested upon procedural default when summary denial did not mention federal law and circumstances surrounding order evidenced that

decision based solely on state law); Jacobs v. Scott, 31 F.3d 1319, 1328 (5th Cir. 1994) (state court’s dismissal rested upon state procedural default when state court relied upon state’s timely objection rule to deny petitioner’s jury instruction claim); Simpson v. Sparkman, 94 F.3d 199, 202-03 (6th Cir. 1996) (state court’s dismissal rested upon state procedural default when state appellate court’s dismissal of habeas petition did not disclose basis for dismissal and no lower state court opinion available); Preston v. Delo, 100 F.3d 596, 599-601 (8th Cir.) (state supreme court’s summary dismissal of petitioner’s claim rested upon procedural default when unexplained dismissal could not be read to rest on federal grounds), cert. denied, 118 S. Ct. 357 (1997) and Hunter v. Aispuro, 982 F.2d 344, 346-47 (9th Cir. 1992) (state court’s dismissal rested upon state procedural default when state appellate and supreme courts’ terse dismissal of habeas petitions did not disclose whether dismissals based upon federal law and did not fairly appear to rest upon federal law). 2800. 520 U.S. 518 (1997). 2801. 489 U.S. 288 (1989).

2802. 520 U.S. 518, 524 (1997). For a discussion of the Teague v. Lane rule, see Cognizable Issues in this Section.

The Supreme Court in Lambrix did state that in cases where the Teague rule might be more easily resolved against the petitioner, judicial economy may require that issue be resolved prior to consideration of procedural bar. Id.

2803. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (citing Harris, 489 U.S. at 262); see Jackson v. Amaral, 729 F.2d 41, 44 (Ist Cir. 1984) (federal habeas review not precluded by failure to raise voir dire objection on direct appeal, as required by state procedural law, when state court disregarded procedural default and ruled on merits of federal claim); Rice v. Marshall, 816 F.2d 1126, 1129 (6th Cir. 1987) (federal habeas review not precluded when state courts chose not to enforce procedural rule and ruled on merits of petitioner’s federal claim); Antwine v. Delo, 54 F.3d 1357, 1361 (8th Cir. 1996) (federal habeas review not precluded when state supreme court ignored procedural bar and addressed federal claim on merits); McKenna v. McDaniel, 65 F.3d 1483, 1489 (9th Cir. 1995) (federal habeas review not precluded when state court, after noting possibility of procedural default, proceeded to specifically reach merits of petitioner’s claim); Church v. Sullivan, 942 F.2d 1501, 1507 (lOth Cir. 1991) (federal habeas review not precluded although petitioner procedurally defaulted because state habeas court fully addressed merits of petitioner’s due process and jury misconduct claims and failed to invoke procedural bar); Davis v. Singletary, 119 F.3d 1471, 1475-80 (llth Cir. 1997) (federal habeas review not precluded when state supreme court sua sponte addressed merits of procedurally defaulted federal claim), cert. denied, 118 S. Ct. 1848 (1998).

Even if the federal court is able to address the defaulted claim, it must (1) be filed within the one year time limit established in U.S.C.A. 2244, and (2) have a factual basis developed on the record, as an evidentiary hearing may be unavailable under U.S.C.A. 2254(e)(2). For a further discussion, see Filing Deadlines and Evidentiary Hearings in this Section.

2804. See Ashe v. Styles, 39 F.3d 80, 86-87 (4th Cir. 1994) (habeas review precluded when state court addressed merits of federal question, but also invoked state procedural bar that was adequate and independent of federal law); Corwin v. Johnson, 150 F.3d 467 (Sth Cir. 1998) (habeas review precluded when state court provided alternative holding on merits, but also clearly based holding upon independent procedural ground of defendant’s failure to contemporaneously object at trial to being absent from preliminary jury qualification) and Coulter v. Herring, 60 F.3d 1499, 1505 (llth Cir. 1995) (per curiam) (habeas review precluded when state court’s alternative holding on merits not principal basis for state court’s denial of relief).

2805. Ylst, 501 U.S. at 803. This refers to a dismissal or denial rather than to an unclear opinion that would be analyzed according to the independent and adequate state grounds test. If the last reasoned state court decision relied upon a procedural default, a federal habeas court will presume that a later state court decision rejecting the claim did not silently disregard the procedural default and reach the merits. Id. Thus, a federal habeas court will “look through” a silent or unexplained denial of a procedurally defaulted claim and uphold the basis for decision of the last reasoned state judgment. Id. at 804. Compare Bates v. Whitley, 19 F.3d 1066, 1067 (Sth Cir. 1994) (per curiam) (habeas review not precluded when state appellate and supreme courts dismissed petitioner’s claims without opinion because not clearly based upon procedural default) and Levine v. Torvik, 986 F.2d 1506, 1516-17 (6th Cir. 1993) (habeas review not precluded when state supreme court’s denial of motion to appeal decision not explained and intermediate appellate court denied insanity acquitee’s appeal from recommitment order on merits) with Epps v. Commissioner of Correctional Servs., 13 F.3d 615, 618-19 (2d Cir. 1994) (habeas review precluded when state trial court did not hold reasoned rejection of federal claim and thus appellate court’s summary affirmance did not suffice for ruling on merits); Sistrunk v. Vaughn, 96 F.3d 666, 673-74 (3d Cir. 1996) (habeas review precluded when state supreme court denial of discretionary review of lower court ruling against petitioner in postconviction relief hearing interpreted as affirmance); Bennett v. Angelone, 92 F.3d 1336, 1343 (4th Cir. 1996) (habeas review precluded when federal court looked through to last reasoned state decision by trial court expressly dismissing petitioner’s claim); Lott v. Hargett, 80 F.3d 161, 164 (Sth Cir. 1996) (habeas review precluded when state supreme court affirmed denial of postconviction relief without opinion and intermediate court relied upon procedural bar); Simpson v. Sparkman, 94 F.3d 199, 202-03 (6th Cir. 1996) (habeas review precluded when no state court expressed reason for dismissal of habeas petition and federal appeals court declined to assume dismissals not based on procedural bar); Oxford v. Delo, 59 F.3d 741, 745 (8th Cir. 1995) (habeas review precluded when district court looked through to earlier state supreme court decision that plainly stated that petitioner procedurally defaulted present and future claims); Correll v. Stewart, 137 F.3d 1404, 1417 (9th Cir.) (habeas review precluded when unexplained order of state supreme court presumed to rest upon same state law procedural basis as trial court), cert. denied, 119 S. Ct. 465 (1998); Gee v. Shillinger, 979 F.2d 176, 177-78 (lOth Cir. 1992) (habeas review precluded when, after clearly and expressly dismissing appeal of postconviction action on procedural grounds, state supreme court denied relief in two subsequent actions due to “insufficient grounds”) and Tejada v. Dugger, 941 F.2d I551, 1556 (llth Cir. 1991) (habeas review precluded when state trial court’s opinion, which clearly and plainly stated that procedural default precluded consideration of claim on state collateral review, affirmed without opinion by state appellate court). But see Hull v. Freeman, 991 F.2d 86, 90-91 (3d Cir. 1993) (habeas review precluded when state supreme court denied petitioner’s untimely appeal without comment although lower courts ruled on merits because three-month late appeal plainly untimely and state supreme court ordinarily did not waive timeliness requirement without so stating).

2806. Coleman, 501 U.S. at 750. The Coleman Court established that the cause and prejudice standard will be applied “[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule.” Id. The Court applied the cause and prejudice standard to a petitioner’s default of his entire appeal and found the petitioner precluded from obtaining federal habeas relief, despite alleged attorney inadvertence in failing to file a timely notice of appeal. Id. at 752. In Murray v. Carrier, 477 U.S. 478 (1986), the Court applied the cause and prejudice standard to a petitioner’s failure to raise a particular claim in his state court appeal to deny the petitioner federal habeas review. Id. at 492. Compare Magouirk v. Phillips, 144 F.3d 348, 361 (Sth Cir. 1998) (habeas review precluded when petitioner made no attempt to show cause and prejudice for failure to file timely appeal); Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) (per curiam) (habeas review precluded when petitioner made no attempt to show cause and prejudice for failure to make timely objection); Moleterno v. Nelson, 114 F.3d 629, 635-36 (7th Cir. 1997) (same); Cooksey v. Delo, 94 F.3d 1214, 1217-18 (8th Cir.) (habeas review precluded when petitioner could neither show cause for default because he had opportunity to oppose state’s motion substituting information for indictment, nor prove actual prejudice because he failed to argue insufficiency of evidence to support convictions), cert. denied, 118 S. Ct. 624 (1997); Villafuerte v. Stewart, 111 F.3d 616, 629 (9th Cir. 1997) (habeas review precluded when petitioner failed to raise claim that state supreme court failed to reweigh aggravating and mitigating evidence in state habeas petition; although state supreme court case establishing basis for claim decided after petitioner’s state habeas petition filed, legal basis for claim well established and available prior to petitioner’s state habeas claim), cert. denied, 118 S. Ct. 860 (1998); Duvall v. Reynolds, 139 F.3d 768,

797 (lOth Cir.) (habeas review precluded when petitioner failed to demonstrate or even argue cause or prejudice for failure to file timely petition in error), cert. denied, 119 S. Ct. 345 (1998) and Hill v. Jones, 81 F.3d 1015, 1024 (llth Cir. 1996) (habeas review precluded when petitioner failed to raise cause argument premised upon Coleman before district court delivered final judgment), cert. denied, 117 S. Ct. 967 (1997) with Deputy v. Taylor, 19 F.3d 1485, 1490 (3d Cir. 1994) (habeas review not precluded, and cause and prejudice assumed to reach merits of claim, because of significance of claim and possible waiver of procedural bar by state); Castellanos v. U.S., 26 F.3d 717, 718 (7th Cir. 1994) (habeas review not precluded because failure to appeal caused by defense counsel’s ineffective performance) and Jones v. Cowley, 28 F.3d 1067, 1073 (lOth Cir. 1994) (habeas review not precluded if, on remand, district court determines that counsel failed to perfect petitioner’s appeal).

Some federal habeas courts avoid the “cause” analysis by first examining the merits of a procedurally defaulted claim to determine whether the petitioner suffered prejudice due to its loss; in the absence of such prejudice, the default is not excusable. See Gardner v. Ponte, 817 F.2d 183, 187 (Ist Cir. 1987) (procedural default not excused, even assuming sufficient cause, when no prejudice resulted from loss of ineffective assistance of counsel claim, because claim meritless); Cuevas v. Henderson, 801 F.2d 586, 591-92 (2d Cir. 1986) (procedural default not excused when no prejudice resulted from loss of ineffective assistance of counsel claim, because claim meritless); Sharp v. Johnson, 107 F.3d 282, 287 (5th Cir. 1997) (procedural default not excused even assuming ineffective assistance of counsel for failing to discover and present mitigating evidence during punishment phase of trial, because evidence too meager to cause jury to change answers to penalty phase questions); Seiler v. Thalacker, 101 F.3d 536, 539-40 (8th Cir.) (procedural default not excused when no prejudice resulted from erroneous jury instruction on elements of crime), cert. denied, 117 S. Ct. 1447 (1997); Pierre v. Shulsen, 802 F.2d 1282, 1283 (lOth Cir. 1986) (procedural default not excused when no prejudice resulted from loss of claim that psychiatrist’s testimony inadmissible because claim meritless).

2807. Coleman, 501 U.S. at 750. In Murray v. Carrier, 477 U.S. 478 (1986), the Court stated that procedural default would be excused, even in the absence of cause, when “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 496. Compare Burks v. Dubois, 55 F.3d 712, 718 (lst Cir. 1995) (procedural default not excused under actual innocence exception when petitioner provided no new information but merely rehashed testimony adduced at trial in attempt to foster suspicion that prosecutor’s overreaching during closing argument led jury to convict); Wedra v. Lefevre, 988 F.2d 334, 343-44 (2d Cir. 1993) (procedural default not excused under actual innocence exception when sufficient evidence existed to convict defendant, even if ineffective representation and prosecutorial misconduct claims true); Glass v. Vaughn, 65 F.3d 13, 17 (3d Cir. 1995) (procedural default not excused under actual innocence exception when petitioner’s claim that posttraumatic stress disorder from Vietnam War service impaired ability to deliberate and premeditate making him innocent of first-degree murder “based entirely on his subjective reporting and was arrived at years after the crime”); Smith v. Dixon, 14 F.3d 956, 974 (4th Cir. 1993) (en banc) (procedural default not excused under actual innocence exception when petitioner remained eligible for death penalty, even if counsel’s representation ineffective); Rodriguez v. Johnson, 104 F.3d 694, 699-700 (5th Cir.) (procedural default not excused under actual innocence exception when petitioner presented no new facts, but only new legal arguments), cert. denied, 117 S. Ct. 2438 (1997); Rust v. Zent, 17 F.3d 155, 162 (6th Cir. 1994) (procedural default not excused under actual innocence exception when petitioner’s explanations implausible); Jenkins v. Gramley, 8 F.3d 505, 508-09 (7th Cir. 1993) (procedural default not excused under actual innocence exception when any deficiencies in counsel’s performance did not change outcome of trial); Sweet v. Delo, 125 F.3d 1144, 1151 (8th Cir. 1997) (procedural default not excused under actual innocence exception when petitioner did not claim he was actually innocent of murder, but merely repeated claimed constitutional errors in trial and pleaded for justice), cert. denied, 118 S. Ct. 1197 (1998); Klein v. Neal, 45 F.3d 1395, 1400 (lOth Cir. 1995) (procedural default not excused under actual innocence exception when state trial court found repeated incidents in record showing acknowledgment of guilt by defendant) and Johnson v. Singletary, 938 F.2d 1166, 1185-86 (llth Cir. 1991) (procedural default not excused under actual innocence exception when petitioner probably would have been convicted even if counsel raised allegedly available defense) with Henderson v. Sargent, 926 F.2d 706, 713-14 (8th Cir. 1991) (procedural default excused under actual innocence exception when state trial counsel failed to investigate and develop obvious leads that would implicate victim’s husband in murder) and Gonzalez v. Abbott, 967 E2d 1499, 1504 (llth Cir. 1992) (procedural default excused under actual innocence exception when petitioner’s claim, if true, rendered conviction void and could not be legal cause of imprisonment).

At least one circuit has held that in addition to meeting the cause/prejudice or miscarriage of justice exceptions, a federal habeas petitioner may also overcome procedural bar if circumstances dictate that the very nature of petitioner’s claim renders it exempt from procedural bar. See Sena v. New Mexico State Prison, 109 F.3d 652, 654-55 (lOth Cir. 1997) (petitioner who failed to appeal state court dismissal of state habeas claim alleging incompetence during guilty plea not barred from federal habeas review

because claim is that state committed “fundamentally unfair act” in accepting plea, depriving petitioner of substantive due process). 2808. 477 U.S. 478 (1986).

2809. Id. at 488. In Carrier, the Court held that attorney error or oversight in criminal proceedings is not sufficient cause for excusing procedural default unless it rises to the level of ineffective assistance of counsel in violation of the Sixth Amendment. Id. at 488-89. Compare Cook v. Lynaugh, 821 E2d 1072, 1078-79 (5th Cir. 1987) (procedural default excused when trial counsel’s failure to inquire about prior uncounseled conviction before allowing its use for sentence enhancement constituted ineffective assistance of counsel); Castellanos v. U.S., 26 F.3d 717, 719 (7th Cir. 1994) (procedural default excused when counsel’s failure to appeal as requested by petitioner constituted ineffective assistance of counsel); Holmes v. Norris, 32 F.3d 1240, 1241 (8th Cir. 1994) (procedural default excused when counsel’s improvident concessions in argument to jury and failure to urge statutory mitigating circumstances to which petitioner entitled constituted ineffective assistance of counsel); Banks v. Reynolds, 54 F.3d 1508, 1514 (lOth Cir. 1995) (procedural default excused when counsel’s failure to raise exculpatory evidence constituted ineffective assistance of counsel) and Upshaw v. Singletary, 70 F.3d 576, 577-80 (llth Cir. 1995) (procedural default excused when counsel’s failure to raise defenses involving petitioner’s mental state at time of crime and counsel’s instruction to petitioner to perjure himself regarding drug use at time of plea colloquy constituted ineffective assistance of counsel) with Magee v. Harshbarger, 16 F.3d 469, 472 n.5 (lst Cir. 1994) (procedural default not excused when counsel’s failure to comply with state contemporaneous rule did not constitute ineffective assistance of counsel); Jones v. Henderson, 809 F.2d 946, 950 (2d Cir. 1987) (procedural default not excused by counsel’s inadvertent omission of claim on appeal because did not constitute ineffective assistance of counsel); Smith v. Dixon, 14 F.3d 956, 973-74 (4th Cir. 1993) (en banc) (procedural default not excused when counsel failed to raise claim on direct appeal because failure did not constitute ineffective assistance of counsel); Sharp v. Johnson, 107 F.3d 282, 286-87 (5th Cir. 1997) (procedural default not excused when counsel failed to preserve trial error for appeal because petitioner failed to inform counsel of existence of key evidence); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996) (procedural default not excused when petitioner failed to prove that trial counsel made errors so grave as to constitute ineffective assistance of counsel); Oxford v. Delo, 59 F.3d 741, 745 (8th Cir. 1995) (procedural default not excused when counsel’s failure to brief numerous violations of petitioner’s constitutional rights on direct appeal did not constitute ineffective assistance of counsel); Correll g Gardner 137 F3d 1404, 1416 (9th Cir. 1998) (procedural default not excused by mere ignorance or inadvertence of counsel in choosing not to pursue mens rea defense that would have conflicted with primary defense theory of misidentification), cert. denied, 119 S. Ct. 465 (1998); Romero v. Tansy, 46 F.3d 1024, 1030 (lOth Cir. 1995) (procedural default not excused when counsel’s failure to investigate possible alibi defense did not constitute ineffective assistance of counsel) and Agan v. Vaughn, 119 F.3d 1538, 1548-50 (llth Cir. 1997) (procedural default not excused when petitioner failed to raise ineffective assistance of counsel claim, based on breach of petitioner’s right to testify, before state trial court on remand, where case law establishing such right available four months before remand appearance), cert. denied, 118 S. Ct. 1305 (1998).

In some circuits, the petitioner must specifically make an independent Sixth Amendment claim to the state courts in order to plead ineffective assistance of counsel as cause for a procedural default. See, e.g., Hull v. Freeman, 991 F.2d 86, 93 (3d Cir. 1993) (cause not shown to excuse procedural default when defendant failed to present ineffective assistance of counsel claim to state courts); Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir. 1993) (same) and Miller v. Lock, 108 F.3d 868, 871 (8th Cir. 1997) (same).

In Coleman, the Supreme Court stated that ineffective assistance of counsel in state postconviction proceedings cannot constitute cause to excuse a procedural default. 501 U.S. at 752. The Coleman Court reasoned that because there is no constitutional right to counsel in state postconviction proceedings, there can be no deprivation of effective assistance and thus the petitioner bears the risk of attorney error in such proceedings. Id. at 754; see Hull v. Freeman, 991 F.2d 86, 91-93 (3d Cir. 1993) (procedural default not excused by postconviction counsel’s failure to notify defendant that he would not file petition for allowance to appeal until after appeal period lapsed); Mackall v. Angelone, 131 F.3d 442, 448 (4th Cir.) (procedural default not excused when postconviction counsel failed to file timely appeal from denial of state habeas relief because no constitutional right to counsel in state postconviction proceedings), cert. denied, 118 S. Ct. 907 (1998); Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993) (procedural default not excused due to attorney error because no constitutional right to counsel in postconviction proceedings, even when counsel is provided by the state); Rehbein v. Clarke, 94 F.3d 478, 484 (8th Cir. 1996) (procedural default not excused by postconviction counsel’s failure to communicate effectively with petitioner and investigate circumstances surrounding incarceration because no constitutional right to

counsel in state postconviction proceedings); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996) (procedural default not excused when postconviction counsel in habeas proceedings failed to allege ineffectiveness of appellate counsel because no constitutional right to counsel in state postconviction proceedings); In re Magwood, 113 F.3d 1544, 1551 (llth Cir. 1997) (per curiam) (procedural default not excused by appellate counsel’s failure to raise claim of ineffective trial counsel, where appellate and trial counsel were same person).

A petitioner’s illiteracy, pro se status, lack of legal knowledge, or reliance upon other inmates’ assistance in preparing her claims generally does not constitute sufficient cause to excuse a procedural default. See Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (cause not shown by petitioner’s ignorance); Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993) (cause not shown by petitioner’s illiteracy and mental illness); U.S. v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (cause not shown by petitioner’s illiteracy, deafness, pro se status, ignorance, and lack of training in law); Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995) (cause not shown by petitioner’s pro se status); Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995) (cause not shown by petitioner’s illiteracy, limited education or depression); Medina v. Singletary, 59 F.3d 1095, 1107 (llth Cir. 1995) (cause not shown by petitioner’s alleged mental incompetency).

2810. Carrier, 477 U.S. at 488. Compare Reed v. Ross, 468 U.S. 1, 18 (1984) (cause existed when defendant failed to raise claim of due process violation for shifting burden of proof to defendant on issue of malice because “burden shifting” not held unconstitutional until several years after procedural default); Gayle v. Mann, 966 F.2d 81, 84 (2d Cir. 1992) (cause existed when petitioner learned after incarceration that presentencing report falsely alleged him to be member of Jamaican mafia); Parkus v. Delo, 33 F.3d 933, 938 (8th Cir. 1994) (cause existed when petitioner, possibly mentally ill and borderline mentally retarded, could not be expected to know that mental health records from his various youth placements existed after being told otherwise by state official) and Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992) (cause existed when petitioner led to believe by opinion of state court of appeals that petition for review in state court not required in order to exhaust state remedies) with George v. Angelone, 100 F.3d 353, 363-64 (4th Cir.) (cause did not exist when petitoner did not discover information alleging constitutional violations by state until after state habeas claim filed, where information available but petitioner maintained that counsel’s 30-day period to prepare state habeas petition insufficient), cert. denied, 117 S. Ct. 854 (1997); Glover v. Cain, 128 F3d 900, 903 (5th Cir.) (cause did not exist when petitioner did not receive transcript from state before appeal filing date, but did not allege the existence of claims he needed transcript to uncover), cert. denied, 118 S. Ct. 1811 (1998); Zeitvogel v. Delo, 78 F.3d 335, 339 (8th Cir. 1996) (cause did not exist when documents concerning petitioner’s mental deficiencies not produced by state available from other sources) and Bolender v. Singletary, 60 F.3d 727, 729 (llth Cir. 1995) (cause did not exist when facts upon which petitioner relied available through due diligence more than two years prior to filing).

The federal courts are reluctant to find claims sufficiently novel as to excuse procedural default. In Smith v. Murray, the Court held that when the type of claim in question “had been percolating in the lower courts for years” at the time of petitioner’s default and when the claim had actually been raised in petitioner’s case in an amicus brief, the claim was not so novel as to excuse procedural default. 477 U.S. 527, 537 (1986); see Engle v. Isaac, 456 U.S. 107, 131-33 (1982) (claim that jury instructions unconstitutionally shifted burden of proof to defendants not so novel as to establish cause for procedural default when relevant cases available as constitutional “tools” to challenge instructions and when numerous other defendants relied upon such precedent); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991) (claim objecting to admission of co-defendant’s incriminating confession not so novel as to excuse procedural default when law on interlocking confessions exception sufficiently unsettled to have merited objection); Bunch v. Thompson, 949 F.2d 1354, 1360 (4th Cir. 1991) (claim that suspect must be party to initiate communication with police after waiver of right to counsel not so novel as to excuse procedural default when issue “subject to debate among reasonable minds at time of petitioner’s appeal”); Bryan v. Warden, 820 F.2d 217, 221-22 (7th Cir. 1987) (claim that state improperly continued to incarcerate petitioner after majority of state supreme court found his conviction defective for differing reasons yet affirmed conviction not so novel as to excuse procedural default); Jackson v. Norris, 105 F.3d 405, 406 (8th Cir.) (claim that petitioner denied counsel on motion for new trial not novel when dictum discussing right was available prior to petitioner’s filing of previous habeas petitions even though case law firmly establishing right not available until after petitioner’s first habeas petition), cert. denied, 118 S. Ct. 125 (1997); Sturgis v. Goldsmith, 796 F.2d 1103, 1107 (9th Cir. 1986) (claim that jury instructions unconstitutionally shifted burden of proof to defendant alleging insanity not so novel as to excuse procedural default when claim foreshadowed by precedent and other defense counsel litigated issue prior to petitioner’s default); Pitts v. Cook, 923 F.2d 1568, 1573 (llth Cir. 1991) (claim th; prosecution’s discriminatory use of peremptory challenges unconstitutional not so novel as to excuse p icedural default

when claim previously asserted in numerous other cases in federal and state courts, although Supreme Court did not decide issue until one year after petitioner’s trial).

Even if the legal basis for a federal constitutional claim is not reasonably available to counsel, procedural default of the claim will not be excused if counsel could have objected to a “necessary element” of the claim as a violation of state law. Dugger v. Adams, 489 U.S. 401, 410 (1989). In Adams, a state prisoner claimed that jury instructions at his trial misled the jury as to the role of appellate review under state law. Id. at 404. The prisoner did not object to the instructions at trial, and neither challenged them on direct appeal nor raised them in a previous federal habeas petition. Id. at 403-04. The petitioner based his claim upon the then-recently decided case of Caldwell v. Mississippi, 472 U.S. 320 (1985), which held that a prosecutor’s remarks misinforming the jury in a capital case as to the role of appellate review violated the Eighth Amendment. Adams, 489 U.S. at 404. The Court denied the petitioner’s claim because a violation of state law was a necessary element of the prisoner’s claim, and the petitioner did not argue that violation in state proceedings. Id. at 407-08. Therefore, it could not safely be assumed that such failure to object was not done for tactical reasons. Id. at 409.

2811. Carrier, 477 U.S. at 488. In Amadeo v. Zant, 486 U.S. 214 (1988), the Supreme Court held that state officials’ concealment of evidence that African Americans and women were intentionally underrepresented on jury lists constituted cause for petitioner’s failure to raise a timely jury challenge. Id. at 224-27. The Court noted that the district court correctly formulated the legal rule that “cause” exists for a procedural default when, as a result of interference by officials, the otherwise defaulted claim was reasonably unknown to petitioner’s lawyers and petitioner’s lawyers made no intentional decision to forego the claim. Id. Compare Fairchild v. Lockhart, 979 F.2d 636, 640 (8th Cir. 1992) (state’s inadvertent possession of exculpatory evidence constituted sufficient cause to excuse procedural default); Banks v. Reynolds, 54 F.3d 1508, 1521 (lOth Cir. 1995) (state’s withholding of exculpatory evidence in violation of Brady constituted sufficient cause to excuse procedural default) and Dorman v. Wainwright, 798 F.2d 1358, 1370 (llth Cir. 1986) (state’s failure to provide petitioner with trial transcript within reasonable time constituted external factor beyond petitioner’s control and sufficient cause to excuse default of appeal) with Barnes v. Thompson, 58 F.3d 971, 977 (4th Cir. 1995) (state’s withholding of exculpatory evidence did not excuse procedural default because petitioner failed to demonstrate state’s actions “worked to his actual and substantial disadvantage, infecting his sentencing with [c]onstitutional dimensions”); Lemons v. O’Sullivan, 54 F.3d 357, 361 (7th Cir. 1995) (state’s shortening of statute of limitations for filing postconviction relief did not excuse procedural default when petitioner still had five months to file claim); Mathenia v. Delo, 99 F.3d 1476, 1480-81 (8th Cir. 1996) (state’s refusal to provide mental evaluation of petitioner did not excuse procedural default when petitioner could have raised claim of diminished mental capacity), cert. denied, 117 S. Ct. 2518 (1997) and Alderman v. Zant, 22 F.3d 1541, 1552 (llth Cir. 1994) (state’s failure to divulge existence of deal between itself and witness not governmental interference which would prevent raising claim in timely fashion).

2812. Section 2254 Rules, supra note 1, Rule 9(a). It is unclear whether a petition filed within the one-year deadline could be dismissed under this rule. For a discussion of the new time limitation, see Filing Deadlines in this Section.

2813. Section 2254 Rules, supra note 1, Rule 9(a). Advisory committee notes state that “subdivision (a) is not a statute of limitations. Rather, the limitation is based on the equitable doctrine of laches [a delay in enforcing rights that disadvantages another, in this case, the state.]” Section 2254 Rules, supra note 1, Rule 9(a) advisory committee’s note.

2814. Section 2254 Rules, supra note 1, Rule 9(a). Compare Alexander v. Maryland, 719 F.2d 1241, 1245-47 (4th Cir. 1983) (dismissal of juvenile waiver claim improper when petitioner convicted in 1961 and right to challenge waiver did not arise until 1972, because state failed to show prejudice arising after 1972) and Hannon v. Maschner, 845 F.2d 1553, 1555-57 (lOth Cir. 1988) (dismissal of ineffective assistance of counsel claim from 1959 conviction improper when legal right to that appeal did not arise until 1970 because state failed to show prejudice arising after 1970), aff’d, 981 F.2d 1142 (lOth Cir. 1992) with Strahan a. Blackburn, 750 F.2d 438, 443-44 (Sth Cir. 1985) (dismissal proper when petitioner failed to show he cot Id not have known importance of now unavailable portions of state record, because he had made several pevious requests for other portions of record); Buchanon v. Mintzes, 734 F.2d 274, 281

(6th Cir. 1984) (dismissal of 25-year-old claim proper when state showed prejudice and petitioner failed to explain why petition not filed sooner); Harris v. Vasquez, 949 F.2d 1497, 1510-11 (9th Cir. 1990) (dismissal of delayed claims proper when state prejudiced by inability to depose trial psychiatrists, and petitioner aware of underlying facts for 11 years) and Clency v. Nagle, 60 F.3d 751, 754 (llth Cir. 1995) (per curiam) (dismissal of delayed claim proper when petitioner did not act with “reasonable diligence” in pursuing claim and should have known of facts underlying claim and constitutional right to assistance of counsel).

2815. Antiterrorism Act, supra note 1, 2244; accord Section 255 Rules, supra note 1, Rule 22(b). The new provisions of the Antiterrorism Act codify case law on second and successive petitions and “further restrict the availability of relief to habeas petitioner.” Felker v. Turpin, 116 S. Ct. 2333, 2340 (1996).

2816. Habeas petitions filed subsequent to dismissal of a prior petition without prejudice are not considered second or successive petitions for purposes of the Antiterrorism Act. See Stewart v. MartinezVillareal, 118 S. Ct. 1618, 1618 (1998) (when previous habeas petition dismissed without prejudice as premature, subsequent petition not “second or successive” for purposes of Antiterrorism Act); Dickinson v. Maine, 101 F.3d 791 (Ist Cir. 1996) (when previous habeas petition dismissed without prejudice for failure to exhaust state remedies, subsequent petition not considered “second” or “successive” for purposes of Antiterrorism Act); Camarano v. Irvin, 98 F.3d 44, 46-47 (2d Cir. 1996) (same); Christy v. Horn, llS F.3d 201, 208 (3d Cir. 1997) (same); In re Gasery, 116 F.3d 1051, 1051-52 (Sth Cir. 1997) (same); Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996) (same); In re Turner, 101 F.3d 1323 (9th Cir.1996) (same); and McWilliams v. Colorado, 121 F.3d 573, 575-76 (lOth Cir. 1997) (same). A number of circuits have held that a motion under Rule 60(b) of the Federal Rules of Civil Procedure (seeking relief from judgment on the basis of mistake, neglect, fraud or new evidence) is equivalent to a successive habeas petition. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.) (petitioner’s 60(b) motion seeking relief from denial of federal habeas petition considered successive habeas petition); Jones v. Murray, 976 F.2d 169, 172 (4th Cir. 1992) (same); U.S. v. Rich, 141 F.3d 550, 551-552 (5th Cir. 1998) (same); McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir.) (same), cert. denied, 117 S. Ct. 2422 (1997); Burris v. Parke, 130 F.3d 782, 783 (7th Cir.) (same), cert. denied, 118 S. Ct. 462 (1997); Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996) (same); Clark v. Lewis, 1 F.3d 814, 825-826 (9th Cir. 1993) (same); Lopez v. Douglas, 141 F.3d 974, 975 (lOth Cir.) (same), cert. denied, 119 S. Ct. 556 (1998) and In re Medina, 109 F.3d 1556, 1561 (llth Cir. 1997) (same).

At least one circuit has held that a federal habeas petition filed subsequent to the filing of a habeas petition that is returned to petitioner, unfiled, for failure to comply with procedural requirements should not be considered second or successive for purposes of the Antiterrorism Act. See Benton v. Washington, 106 F.3d 162, 164-165 (7th Cir. 1996) (federal habeas petition not filed by court clerk because fee not paid not considered “first” petition for Antiterrorism Act purposes).

One federal circuit has also held that a federal habeas petition voluntarily dismissed by the petitioner is considered a “previous” petition for purposes of defining a second or successive petition. See Felder v. McVicar, 113 F3d 696, 697-98 (7th Cir. 1997) (petitioner’s voluntarily dismissed federal habeas petition must be considered “previous” petition; otherwise, petitioner could thwart limitations on filing of successive petitions by withdrawing initial petition once evident district court might rule against him).

2817. Felker v. Turpin, 518 U.S. 651, 657 (1996). The petitioner in Felker was denied relief of conviction and death sentence on direct appeal, in two rounds of state collateral proceedings, and in a first round of federal habeas corpus proceedings. The Antiterrorism Act was signed into law while the petitioner awaited execution, and the 11th Circuit denied his second habeas petition on the grounds that the claims raised in the second petition had not been raised in his first petition and failed to meet the conditions of Section 2244(b). The Supreme Court affirmed the constitutionality of the Antiterrorism Act’s habeas corpus provisions.

2818. Antiterrorism Act, supra note 1, 2244(b)(3); see Liriano v. U.S., 95 F.3d 119, 123 (2d Cir. 1996) (per curiam) (in the interest of justice district court should transfer to circuit court second or successive petition filed in district court without certificate of appealability); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (same) and Coleman v. U.S., 106 F.3d 339, 340-41 (lOth Cir. 1997) (per curiam) (same). But see In re Medina, 109 F.3d 1556, 1564 (llth Cir. 1997) (district court correctly dismissed habeas application where petitioner did not seek successive petition authorization from circuit court). The three-judge circuit court panel has 30 days from filing to grant or deny authorization. The 30-day period should begin once the petitioner has filed a 2244(b)(3) motion with the circuit court to request

authorization. Coleman, 106 F.3d at 341 (holding that once district court transfers authorization motion to circuit court, clerk of circuit court should notify petitioner of requirement to submit motion, and 30-day review starts to run once motion received by circuit court).

An original application for habeas corpus relief should be filed in the appropriate district court. Section 2255 Rules, supra note 1, Rule 22(a).

2819. Antiterrorism Act, supra note 1, 2244(b)(1), (b)(3)(C). See Calderon v. Thompson, 118 S. Ct. 1489, 1500 (1998) (petitioner’s motion to recall mandate on basis of merits of underlying decision regarded as second or successive application because otherwise, petitioner could evade bar against relitigation of claims not presented in prior application); Zeitvogel v. Bowersox, 103 F.3d 54, 55-56 (8th Cir. 1996) (petitioner’s second habeas petition barred where attorney conflict of interest claim in second habeas petition repeats ineffective assistance of counsel claim from first petition “in an effort to disguise” successive petition). At least two circuits have held that a claim that is presented in a federal habeas petition, even if not ultimately ruled upon by the district court, cannot again be presented in a second or successive petition. The petitioner has the responsibility to obtain a ruling on any issue left unaddressed by the district court. See Floyd v. Alexander, 148 F.3d 615, 618 (6th Cir.) (petitioner’s second habeas petition barred when petitioner argued in first petition that guilty plea was rendered involuntary by trial court’s subsequent modification of prison sentence, and second petition merely stated same claim more specifically), cert. denied, 119 S. Ct. 557 (1998); Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998) (petitioner’s third habeas petition barred where he did not add any new claims, but merely clarified existing ones with more discussion and citations), cert. denied, 1999 WL 8123 (U.S. Jan 11, 1999) (NO. 98-6386).

2820. Antiterrorism Act, supra note 1, 2244(b)(2)(A), (b)(2)(C); accord Section 2254 Rules, supra note 1, Rule 9(b) advisory committee’s note (“There are instances in which petitioner’s failure to assert a ground in a prior petition is excusable. A retroactive change in the law and newly discovered evidence are examples”). Compare Rodriguez v. Superintendent, Bay State Correctional Center, 139 F.3d 270, 273-74 (Ist Cir. 1998) (abuse of writ when new rule of law cited by petitioner, though not previously available, had not been made retroactive to cases on collateral review by Supreme Court); In re Davis, 121 F.3d 952, 953-55 (Sth Cir. 1997) (abuse of writ to present new incompetence claim in successive habeas petition when rule prohibiting state execution of incompetents was established prior to petitioner’s first habeas petition, even though petitioner became incompetent only after first petition filed); In re Siggers, 132 F.3d 333, 337-38 (6th Cir. 1997) (abuse of writ when new rule cited by petitioner, though previously available, had not been made retroactive to cases on collateral review, and petitioner could not establish inability to discover claim’s factual predicate at time of first petition); Coleman v. U.S., 106 F.3d 339, 341 (lOth Cir. 1997) (per curiam) (abuse of writ when new rule of law cited by petitioner, though not previously available, held to be nonconstitutional rule) and In re Hill, 113 F.3d 181, 182-84 (llth Cir. 1997) (per curiam) (abuse of writ when petitioner’s first federal habeas claim filed before new rule of constitutional law established but claim not adjudicated for three years, during which rule established and petitioner failed to accept district court’s repeated invitations to amend petition) with Green v. Reynolds, 57 F.3d 956, 958 (lOth Cir. 1995) (abuse of writ not established with claim of constitutional violation regarding due process right to retroactive adult certification hearing “since violation that arose from remedy did not exist at time of filing of original petition”). For an explanation of retroactively applicable constitutional rights, see Cognizable Issues in this Section.

2821. Antiterrorism Act, supra note 1, 2244(b)(2)(B). Compare Harris v. Pulley, 885 F.2d 1354, 1370-71 (9th Cir. 1988) (newly developed statistical evidence justified new claim that “death qualified” jury violated Sixth Amendment because evidence “not reasonably ascertainable” when first petition filed) and Coleman v. Saffle, 912 F.2d 1217, 1229 (lOth Cir. 1990) (per curiam) (medical records obtained during appeal on second petition justified new competency claims in third petition when neither petitioner nor counsel previously knew that records existed and appellate court refused to remand or stay proceedings on second petition) with In re Dorsainvil, 119 F.3d 245, 247-49 (3d Cir. 1997) (petitioner’s claim that new case law casts evidence used at trial in a “different light” insufficient to establish new factual basis underlying habeas claim); Herrera v. Collins, 954 F.2d 1029, 1033-34 (Sth Cir. 1992) (newly asserted facts not grounds for habeas relief on successive petition when clock had already run for introduction of such evidence in state court), aff’d, 506 U.S. 390 (1993); Pickens v. Lockhart, 4 F.3d

1446, 1450 (8th Cir. 1993) (affidavit submitted with second petition did not justify successive claim because petitioner knew of basis for claim when filed first petition); Woratzeck v. Stewart, 118 F.3d 648, 651-52 (9th Cir. 1997) (petitioner’s claim that evidence thought destroyed might exist insufficient to warrant successive petition when petitioner long knew of possible existence of evidence and reasonable diligence could have turned up evidence if not destroyed); Stafford v. Ward, 59 F.3d 1025, 1027 (lOth Cir.) (prosecution’s withholding material exculpatory evidence about bloody fingerprints on tailgate of victims’ vehicle did not justify successive claim when petitioner had relevant information at time of first petition even though uncertain whether he knew about fingerprint evidence) and In re Boshears, l lO F.3d 1538, 1540-41 (llth Cir. 1997) (newly discovered evidence alleging petitioner did not commit crime did not justify successive habeas petition when petitioner failed to explain why evidence could not be discovered earlier with due diligence).

While a newly discovered factual basis may permit filing of a new claim in a second or successive petition, such a newly discovered factual basis does not permit filing of a successive petition raising the same claim presented in a previous petition. See Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997) (petitioner barred from filing successive petition raising ineffective assistance of counsel claim raised in first petition, despite claim of new evidence of counsel’s ineffectiveness); In re Jones, 137 F.3d 1271, 1273 (llth Cir.) (petitioner barred from filing successive petition raising involuntariness of confession claim raised and rejected in first petition, despite new evidence suggesting arresting officer improperly beat petitioner), cert. denied, 118 S. Ct. 751 (1998).

2822. Antiterrorism Act, supra note 1, 2 2244(b)(2)(B)(ii). Section 2244(b)(2)(B)(ii). Section 2244(b)(2)(B) of the Antiterrorism Act builds on the “miscarriage of justice” and “actual innocence” standards of past Supreme Court cases. See McCleskey v. Zant, 499 U.S. 467, 494-95 (1991). In McCleskey, the Supreme Court held that generally an omission of a claim from an earlier petition may be excused only if the petitioner demonstrated objective cause for failing to raise the claim earlier and actual prejudice attributable to her inability to raise the claim. Id. at 493. The McCleskey Court, however, recognized a “narrow exception” to the cause requirement: the petitioner must demonstrate that the alleged constitutional violation probably has caused the conviction of an innocent person. Id. at 494-95. Section 2244(b)(2)(B), however, requires the petitioner to show both cause for failing to discover the factual basis for the claim earlier and actual innocence. Antiterrorism Act, supra note 1, 2244(b)(2)(B).

In addition, section 2244(b)(2)(B) also requires a stronger showing of actual innocence than did previous Supreme Court cases. In Schlup v. Delo, the Supreme Court held that a petitioner could demonstrate actual innocence by showing “that [it is] more likely than not that no reasonable juror would have convicted her in light of the new evidence.” 115 S. Ct. 851, 868 (1995). Section 2244(b)(2)(B) of the Antiterrorism Act, however, requires the petitioner to show actual innocence by clear and convincing evidence. Antiterrorism Act, supra note 1, 2244(b)(2)(B)(ii). This is the standard the Supreme Court had previously reserved for claims that only challenge the validity of a death sentence. Sawyer v. Whitley, 505 U.S. 333, 346-47 (1992) (in order to demonstrate actual innocence to obtain relief on a successive or abusive claim, a death-sentenced petitioner must show by clear and convincing evidence that no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law).

At least two circuits have held that a 2244(b)(2)(B) exception to the prohibition on second or successive petitions “does not apply to claims that relate only to” petitioner’s sentence. See Burris v. Parke, 116 F.3d 256, 258 (7th Cir.) (prohibition on petitioner’s second petition barred evidentiary hearing on competency to be executed claim because exception refers unambiguously to offense of conviction and not to proceedings concerning sentence), cert. denied, 118 S. Ct. 462 (1997); In re Medina, 109 F.3d 1556, 1565 (llth Cir. 1997) (same). But see Thompson v. Calderon, 151 F.3d 918, 924 n.4 (9th Cir.) (disagreeing with decisions rejecting a petitioner’s claim of innocence of death penalty as not cognizable under Antiterrorism Act), Cert. denied, 119 S. Ct. 3 (1998).

Another circuit has held that if a petitioner can make the required prima facie showing for at least one claim in his second or successive petition, the court of appeals will certify his entire petition for consideration by the district court. See Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997). 2823. Antiterrorism Act, supra note 1, 2244(b)(3)(E); Felker v. Turpin, 518 U.S. 651, 658-62 (1996) (decision by the “gatekeeping” court of appeals not appealable).

2824. Antiterrorism Act, supra note 1, 2244(b)(4). Section 2244 appears to establish a “presumption of abuse of the writ” in second and successive petitions. Previously, the government bore the burden of pleading abuse of writ with clarity and particularity and the burden shifted to the petitioner only after such pleading. Sanders v. U.S., 373 U.S. 1, 11 (1963); accord Section 2254 Rules, supra note 1, Rule 9 advisory committee’s note; see McCleskey, 499 U.S. at 495 (when abuse of the writ raised, the burden is on petitioner to justify her failure to raise claim in an earlier petitioner); Price v. Johnston, 334 U.S. 266, 292 (1948) (“Once a particular abuse has been alleged, the prisoner has the burden . . . of proving that he has not abused the writ.”). 2825. 518 U.S. 651 (1996).

2826. Id. at 664; Section 2254 Rules, supra note 1, Rule 9(b). But see Burris v. Parke, 95 F.3d 465, 469 (7th Cir. 1996) (“The doctrine of abuse of writ is defunct . . . [and] superseded by [28 U.S.C.A.

2244 (1996, which nowhere uses the term.”). For a discussion of “abuse of the writ,” see Sanders, 373 U.S. at 17-18; Drew v. Collins, 5 F.3d 93, 96 (Sth Cir. 1993) (petitioner abused writ in second habeas petition when failed to raise claim that judge’s drawing smiling face next to signature on execution order violated his First and Eighth Amendment rights in first petition because judge had drawn similar smiling face on another execution order before first habeas proceeding); Heffernan v. Norris, 48 F.3d 331, 334 (8th Cir. 1995) (petitioner abused writ when constitutional claim reasonably available to counsel at time of previous habeas petition); Clark v. Lewis, 1 F.3d 814, 823 (9th Cir. 1993) (death-sentenced petitioner abused writ in second habeas action because he possessed or by reasonable means could have discovered basis for claim during first habeas action). In Felker the Court also found the “gatekeeping” requirement constitutional and the law’s limitations on the Court’s appellate jurisdiction over “gatekeeping” decisions to be consonant with Article III, 2 of the Constitution, which gives Congress the power to determine the court’s appellate jurisdiction. In addition, the Felker Court found that nothing in the law limits or removes the Court’s authority to hear original writs of habeas corpus. “The added restrictions which the Act places on second habeas petitions are well within the compass of [the abuse of writ’s historical] evolutionary process ….” 518 U.S. at 664. The Court also said that while the restrictions on 2254(b) do not bind the court in its consideration of original writs of habeas corpus, they “certainly inform our consideration of original habeas petitions.” Id. at 663.

2827. Section 2254 Rules, supra note 1, Rule 4. Compare Love v. Butler, 952 F.2d 10, 15 (lst Cir. 1991) (per curiam) (summary dismissal proper despite lack of answer by commonwealth or examination of record by district court judge when petitioner’s arguments readily susceptible to resolution without resort to transcript); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985) (summary dismissal proper when, on petition’s face, no colorable basis asserted for claim that guilty plea invalid); Small v. Endicott, 998 F.2d 411, 416-18 (7th Cir. 1993) (summary dismissal proper when petitioner’s claim regarding waiver of right to appear at scheduling hearing fails to state claim or is factually frivolous) and Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir. 1985) (summary dismissal proper when allegations of improper stipulation, even if true, failed to show claim of ineffective assistance of counsel cognizable in federal habeas proceedings) with Strouse v. Leonardo, 928 F.2d 548, 554-55 (2d Cir. 1991) (summary dismissal improper if defense attorney’s attempt to be appointed executor of murder victim’s estate raised sufficient appearance of conflict of interest) and O’Blasney v. Solem, 774 F.2d 925, 926 (8th Cir. 1985) (summary dismissal improper when allegations of insufficient evidence were legally sufficient).

Although summary dismissal may apply to a second or successive petition, it is unlikely that a district court would summarily dismiss a second or successive petition as facially insufficient for relief since the circuit court would have previously authorized the petition.

Petitioners also may voluntarily move to dismiss their petitions. See Bullard v. Estelle, 708 E2d 1020, 1022-23 (5th Cir. 1983) (per curiam) (granting petitioner’s motion to dismiss petition when petitioner sought to appeal claim directly to state court on basis of subsequent change in state case law).

2828. Section 2254 Rules, supra note 1, Rule 4. The rule does not prescribe a fixed time period for filing the answer. In setting a deadline, the court may consider such factors as respondent’s workload and availability of transcripts. Id. (advisory committee’s note). Rule 5 describes the required contents of the answer:

The answer shall respond to the allegations of the petition. In addition it shall state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him under the statutes or procedural rules of the state and including also his right of appeal both from the judgment of conviction and from any adverse judgment or order in the post-conviction proceeding. The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner’s brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer.

Section 2254 Rules, supra note 1, Rule S. 2829. Section 2254 Rules, supra note 1, Rule 4..

2830. Hardiman v. Reynolds, 971 F.2d SOO, 502-04 (lOth Cir. 1992) (values of efficiency and comity served by consideration of procedural default defense).

2831. Trest v. Cain, 522 U.S. 87, 88 (1998); but see Magourik v. Phillips, 144 F.3d 348, 357 (Sth Cir 1998) (a federal court may notice a procedural default of its own motion); Boyd v. Thompson, 147 F.3d 1124, 1227 (9th Cir. 1998) (question is open as to whether and when a habeas court may consider a procedural default that has been waived by the state).

2832. The decision of whether to hold an evidentiary hearing is now a statutory determination under 2254(e)(2). Prior to the Antiterrorism Act, the determination was governed by case law. If an evidentiary hearing was held before the Antiterrorism Act became effective the district court’s previous evidentiary findings will be considered as part of the record. See Fuller v. Johnson, 114 F.3d 491, 496 (Sth Cir.) (signing of Antiterrorism Act does not affect the circuit court’s review of record developed during an evidentiary hearing held before the Act became effective and which under the Act would not have been held), cert. denied, 118 S. Ct. 399 (1997).

2833. Antiterrorism Act, supra note 1, 2254(e)(2)(A)(i). For an explanation of retroactive application of new constitutional rights, see Cognizable Issues in this Section. 2834. Antiterrorism Act, supra note 1, 2254(e)(2)(A)(ii). See Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997) (dictum) (evidentiary hearing would have been permitted even under the Act when the trial judge’s abrupt declaration of mistrial made further development of the record impossible) and MacDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998) (petitioner who, without defaulting, was procedurally barred from developing factual basis for his claim cannot be said to have failed to develop it unless the failure results from his own decision or omission); Burris v. Parke, 116 F.3d 256, 258 (7th Cir.) (dictum) (new rules not applied, but under them a “failure” to develop the record in state court applies only to an act or omission by the petitioner and does not imply a “strict liability” that would disregard the reason

for the shortcoming in the record), cert. denied, 118 S. Ct. 462 (1997). 2835. Antiterrorism Act, supra note 1, 2254(e)(2)(B). Section 2244(e)(2) apparently overrules Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). In Tamayo-Reyes, the Supreme Court held that in order to obtain a hearing the petitioner must “show cause for his failure to develop the facts in state court proceedings and actual prejudice resulting from that failure.” Id. at 11. If a petitioner is unable to meet the cause and prejudice standard for failure to adequately develop evidence, Tamayo-Reyes allowed for a narrow exception by which the federal court’s failure to hold an evidentiary hearing would result in “a fundamental miscarriage of justice.” Id. at 12, Section 2244(e)(2), however, requires that the petitioner, to obtain an evidentiary hearing, show both cause for why the facts were not previously developed and actual innocence. See Pitsonbarger v. Gramley, 103 F.3d 1293, 1299 (7th Cir.) (“miscarriage of justice” exception to procedural default not available under new law; no evidence presented to meet burden of new 2254(e)(2)(B)), vacated on other grounds, 118 S. Ct. 37 (1997). 2836. 28 U.S.C. 636(b)(1)(B) (1994); Section 2254 Rules, supra note 1, Rule 8(b)(1); see Martinez v. Johnson, 104 F.3d 769, 771-773 (Sth Cir.) (magistrate judge may dismiss petition for failure to answer respondent’s motion for summary judgment), cert. denied, 118 S. Ct. 195 (1997). 2837. Section 2254 Rules, supra note 1, Rule 8(b)(3). Compare Santiago v. Canon, 138 F. 3d 1, 4 (Ist Cir.1998) (failure to file a specific objection irretrievably waives any right to review at the district court or appellate level); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.) (dictum) (failure to object to magistrate’s report and recommendations precluded appellate review when report explicitly warned of consequences of such a failure), cert. denied, 118 S. Ct. 211 (1997); Continental v. Dominick, 150 F. 3d 245, 251 (3d Cir. 1998) (failure to object to magistrate’s report, despite judge’s awareness of petitioner’s unhappiness with it, waives right to appeal); Carter v. Collins, 918 F.2d 1198, 1203 (Sth Cir. 1990) (failure to object to magistrate’s report precluded petitioner from challenging magistrate’s factual findings on appeal except on grounds of plain error or manifest injustice); Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984) (failure to object to magistrate’s report constituted waiver of right to appeal magistrate’s findings), aff’d, 474 U.S. 140 (1985); Otto v. Variable, 134 F. 3d 841, 854 (7th Cir. 1998) (failure to file objection to magistrate’s ruling waives right to appeal all factual and legal issues), reh’g denied (1998); and Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (failure to object to magistrate’s report precluded petitioner from appealing findings of fact contained therein and precluded de novo review by district court of magistrate’s recommendation) with Neuman v. Rivers, 125 F.3d 315 (6th Cir.) (while explicit objection is unnecessary where petitioner makes reference to previously filed documents, merely referring to some parts of those documents is insufficient to constitute objection) cert. denied, 118 S.Ct. 631 (1997) and Whitmore v. Avery, 26 F.3d 1426, 1428 n.3 (8th Cir. 1994) (failure to object to magistrate’s report did not constitute waiver of right to appeal magistrate’s findings when court of appeals has not adopted rule conditioning such appeal on filing objections with district court), rev’d on other grounds, 63 F.3d 688 (1995).

2838. Section 2254 Rules, supra note 1, Rule 8(b)(4) (“judge . . . shall make a de novo determination of those portions of the [magistrate’s] report . . . to which objection is made”); see Santiago v. Canon, 138 F.3d 1, 3 (lst Cir. 1998) (district court is not under any obligation to discover new legal theories before adopting magistrate’s report and recommendation); Johnson v. Puckett, 929 F.2d 1067, 1069 (Sth Cir. 1991) (district court rejected magistrate’s recommendation that petition be granted); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (district court’s failure to conduct mandatory de novo review of portions of magistrate’s report to which petitioner objected reversible error requiring remand for evidentiary hearing); Ballard v. Estelle, 937 F.2d 453, 456 n.4 (9th Cir. 1991) (district court bases de novo determination on review of magistrate’s findings and recommendations, petitioner’s objections, and portions of record quoted in magistrate’s report); Andrews v. Deland, 943 F.2d 1162, 1170 (lOth Cir. 1991) (district court has authority to consider actual testimony and make de novo determinations on portions of magistrate’s report to which objections are made, but district judge has “considerable discretion in determining what reliance he or she may place”); Stokes v. Singletary, 952 F.2d 1567, 1576 (I th Cir. 1992) (failure of district court judge to conduct mandatory de novo review of timely objections made to magistrate’s reports requires remand for new evidentiary hearing of issues).

2839. Antiterrorism Act, supra note 1, 2254(e)(1) (re-designating old 2254(d) as new 2254(e)(1)). In Burden v. Zant, 498 U.S. 433 (1991) (per curiam), the Supreme Court reversed the circuit court’s denial of a federal habeas petition, which claimed ineffective assistance due to petitioner’s attorney’s simultaneous representation of a material prosecution witness, because the state court had expressly found that the witness testified at petitioner’s trial under a grant of immunity. Id. at 433-34. The Court stated that it was improper for the federal court to disregard the state court’s factual finding and to conclude that a “potential” attorney conflict of interest had not become “actual.” Id. at 436-37. Compare Whitaker v. Meachum, 123 F.3d 714, 715 (2d Cir. 1997) (presumption applied to basic facts about apprehension of petitioner when fairly supported by the record); Todaro v. Fulcomer, 944 F.2d 1079, 1082-83 (3d Cir. 1991) (presumption applied to state court finding that petitioner suffered no prejudice in fact); Fields v. Murray, 49 F.3d 1024, 1031 (4th Cir. 1995) (en banc) (presumption applied to state court finding that petitioner did not evoke self-representation right clearly and unequivocally); Carter v. Johnson, 131 F.3d 452, 458, 561 (Sth Cir.) (presumption applied to state court determination that imposter witness not intentionally presented by state), cert. denied, 118 S. Ct. 1567 (1998); Groseclose v. Bell 130 F.3d 1161, 1164 (6th Cir.) (presumption applied to state court factual findings based on transcripts of post-conviction hearing and trial that counsel had enough information to be effective), cert. denied, 118 S. Ct. 1826 (1998); Henderson v. DeTella, 97 F.3d 942, 946 (7th Cir.) (presumption applied to state court determination that petitioner knowingly waived Miranda rights), cert. denied, 117 S. Ct. 1471 (1997); Thatsaphone v. Weber, 137 F.3d 1041 (8th Cir.) (presumption applied to basic facts underlying petitioner’s Miranda claim); cert. denied, 118 S. Ct. 1567 (1998); Hendricks v. Zenon, 993 F.2d 664, 668 (9th Cir. 1993) (presumption applied to state courts factual determinations regarding waiver of right to counsel in habeas proceedings); Castro v. Ward, 138 F.3d 810, 824 (lOth Cir.) (presumption applied to state court factual determination that juror not biased) cert denied sub nom, 119 S.Ct 422 (1998); and Weeks v. Jones, 52 F.3d 1559, 1561-62 (llth Cir. 1995) (presumption applied to state court determination that petitioner competent to be executed), with Johnson v. Trigg, 28 F.3d 639, 643-44 (7th Cir. 1994) (no deference to alleged state court finding when no reliable and adequate written indicia of finding or formal ruling on finding in record and when state judge casually remarked motion “doesn’t hold water” in midst of hearing) and Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1998) (presumption not applied to state court finding that juror not biased where juror’s bias might have been revealed had state judge investigated further) petition for cert. filed, 67 USLW 3188 (Sept. 21, 1998). The presumption of correctness applies to the factual determinations of both trial and appellate state courts. Sumner v. Mata, 449 U.S. 539, 547 (1981). See Parker v. Dugger, 498 U.S. 308, 320 (1991) (federal court must accord 2254 deference to state appellate court’s factual determination of state trial court’s findings); Flamer v. Delaware, 68 E3d 710, 724 (3d Cir. 1995) (federal court applies presumption of correctness to factual findings of state appellate court), Fields u Murray, 49 F.3d 1024, 1033 (4th Cir. 1995) (same); Ledbetter v. Edwards, 35 F.3d 1062, 1071 (6th Cir. 1994) (same); Jackson v. Anderson, 112 F.3d 823, 824-25 (Sth Cir.) (same), cert. denied, 118 S. Ct. 1059 (1998); Coulter v. Gilmore, 155 F.3d 912, 920 (7th Cir. 1998) (federal court applies presumption of correctness to appellate court’s acceptance of state court’s factual findings regarding voir dire striking of jurors); Pickens v. Lockhart, 4 F.3d 1446, 1452 (8th Cir. 1993) (federal court applies presumption of correctness to state trial and appellate court findings of fact on juror bias); Jeffries v. Wood, 114 F.3d 1484, 1499-500 (9th Cir.) (federal court applies presumption of correctness to state supreme court finding that jurors did not believe misconduct was significant; presumption overcome by clear and convincing evidence in the record of affidavit juror had submitted to the court a few days after verdict), cert. denied, 118 S. Ct. 586 (1997); Steele v. Young, 11 F.3d 1518, 1520 n.2 (lOth Cir. 1993) (federal court applies presumption of correctness to both explicit and implicit findings of fact by state trial and appellate courts); Bolender v. Singletary, 16 F.3d 1547, 1552 n.l (llth Cir. 1994) (federal court applies presumption of correctness to state appellate court’s findings of fact).

The presumption of correctness has also been applied to factual findings implicit in a state court’s ruling. See Bolender, 16 F.3d at 1552 n.2 (federal court applies presumption of correctness to both explicit and implicit findings of fact by state courts). Compare Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992) (finding that counsel’s letter did not induce petitioner’s guilty plea implicit in state court denial of state habeas petition); Cantu v. Collins, 967 F.2d 1006, 1015 (5th Cir. 1992) (finding that witness had sufficient opportunity to identify petitioner implicit in state court finding that identification validly made); Sprosty v. Buchler, 79 F.3d 635, 643 (7th Cir. 1996) (finding that petitioner failed to invoke right to counsel implicit in state court finding that petitioner had not expressed to police desire to speak with attorney); Crespo v. Armontrout, 818 F.2d 684, 686 (8th Cir. 1987) (finding that petitioner never invoked right to counsel implicit in state court ruling that confession voluntary) and Tinsley v. Borg, 895 F.2d 520, 524-26 (9th Cir. 1990) (finding that individual juror impartial implicit in state court denial of new trial motion after lengthy posttrial hearing on issue of juror’s bias) with U.S. ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1315 (7th Cir. 1986) (implicit finding of no collusion between state and petitioner’s attorney not presumed correct when material evidence not fully developed at trial).

2840. Wainwright v. Witt, 469 U.S. 412, 426-30 (1985). In Witt, the Supreme Court held that a petitioner who claimed improper juror exclusion was not entitled to an evidentiary hearing because the claim involved credibility determinations, and thus was a question of fact to be accorded the presumption of correctness. Id. at 429; see Truesdale v. Moore, 142 F.3d 749, 757 (4th Cir.) (presumption of correctness applied to trial court’s exclusion of jurors based on their stated unwillingness to impose the death penalty), cert. denied,119 S. Ct. 380 (1998); Fuller v. Johnson, 114 F.3d 491, 500-01 (Sth Cir. 1997) (presumption of correctness applied to state trial court’s exclusion of juror based on her opposition to death penalty); Pitsonbarger v. Gramley, 103 F.3d 1293, 1303-04 (7th Cir. 1996) (presumption of correctness applied to state court’s excusing juror because of views on death penalty), vacated on other grounds, 118 S. Ct. 37 (1997); Malone v. Vasquez, 138 F.3d 711, 720 (8th Cir.) (same), cert. denied,ll9 S. Ct. 384 (1998); Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992) (presumption of correctness applied to state court finding of juror bias concerning death penalty). Juror exclusion for cause is discussed in Challenges for Cause in RIGHT TO JURY TRIAL in Part III. State court determinations under Batson v. Kentucky, 476 U.S. 79 (1986), of whether peremptory strikes were motivated by group bias are also presumed to be correct. See Purkett v. Elem, 514 U.S. 765, 769 (1995) (presumption of correctness accorded to state court’s finding of no racial motive in prosecutor’s use of peremptory strikes; finding turned primarily on assessment of credibility); Pemberthy v. Beyer, 19 F.3d 857, 864-65 (3d Cir. 1994) (presumption of correctness accorded to state court determination that prosecutor’s peremptory strike not motivated by group bias); Washington v. Johnson, 90 F.3d 945, 954 (Sth Cir.) (same), cert. denied, 117 S. Ct. 1259 (1997); Mitchell v. Rees, 114 F.3d 571, 573-578 (6th Cir.) (presumption of correctness accorded to appellate court finding of lack of evidence to support claim that jury pool unconstitutionally excluded African Americans), cert. denied, 118 S. Ct. 1062 (1998); Mahaffey v. Page, 151 E3d 671, 678 (7th Cir. 1997) (presumption applies where trial court has examined prosecution’s race-neutral reasons for peremptory strikes); Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir. 1996) (presumption of correctness accorded to state court finding that prosecutor struck seven African Americans from jury for racially neutral reasons); Turner v. Marshall, 121 F.3d 1248, 1250-51 (9th Cir.) (presumption of correctness accorded to state court findings that prosecutor did not engage in purposeful discrimination in striking one African American during jury selection), cert. denied, 118 S. Ct. 1178 (1998); Wallace v. Morrison, 87 F.3d 1271, 1271 (llth Cir. 1996) (per curiam) (presumption of correctness accorded to state court findings that peremptory strikes based partly on race-neutral factors). But see Burks v. Borg, 27 F.3d 1424, 1427 (9th Cir. 1994) (presumption of correctness not accorded to Batson findings where erroneous legal standard applied).

2841. Compare Patton v. Yount, 467 U.S. 1025, 1036-38 (1984) (state court’s finding of juror’s impartiality presumed correct because question “plainly one of historical fact”); Rushen v. Spain, 464 U.S. 114, 120 (1983) (per curiam) (state court’s finding that juror not biased by ex parte communications with trial judge presumed correct because “question of historical fact”); Amirault v. Fair, 968 F.2d 1404, 1405 (Ist Cir. 1992) (per curiam) (state court’s finding that juror answered voir dire questions honestly presumed correct because issues of juror credibility and honesty “peculiarly within a trial judge’s province” (quoting Witt, 469 U.S. at 428)); Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994) (state court’s finding of jury impartiality presumed correct when trial judge conducted careful in camera investigation before concluding no bias); Howard v. Moore, 131 F.3d 399, 421 (4th Cir.) (state court finding that county clerk’s use of juror thank-you form letters as juror scrap paper did not constitute improper communication with jurors presumed correct) cert. denied, 119 S. Ct. 108 (1998); Montoya v. Scott, 65 F.3d 405, 419 (Sth Cir. 1995) (state court’s finding that juror’s failure to disclose familiarity with victim did not establish juror partiality presumed correct); Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998) (state court finding that juror not partial presumed correct as a question of historical fact) with Hunley v. Godinez, 975 F.2d 316, 317-19 (7th Cir. 1992) (state court’s determination that jurors’ impartiality not biased by burglary of their hotel rooms during deliberations not presumed correct due to doctrine of implied bias applicable in extraordinary circumstances). See also Dyer v. Calderon ISI F.3d 970, 975 (9th Cir. 1997) (state court finding that juror was biased not entitled to presumption where vital material facts were left undeveloped); Gonzalez v. Thomas, 99 F.3d 978, 984 (lOth Cir.) (state court determination of juror bias during voir dire question of fact reviewed only for “clear error”), cert. denied, 117 S. Ct. 1342 (1997).

2842. Sumner v. Mata, 455 U.S. 591, 597 (1982) (per curiam) [hereinafter Sumner ll]. In Sumner 11, the Supreme Court held that, although the constitutionality of pretrial identification procedures is a mixed question of law and fact, a presumption of correctness must be accorded to state court factual findings regarding the circumstances of the identification procedures. Id. The questions of fact include “whether the witnesses . . . had an opportunity to observe the crime or were too distracted; whether the witnesses gave a detailed, accurate description; and whether the witnesses were under pressure from prison officials or others.” Id.; see Cantu v. Collins, 967 F.2d 1006, 1015 (Sth Cir. 1992) (state court factual findings

regarding repeated showing of petitioner’s photo to victim presumed correct); McMillan v. Barksdale, 823 F.2d 981, 984 (6th Cir. 1987) (state court factual findings regarding line-up presumed correct); Abrams v. Barnett, 121 F.3d 1036, 1041 (7th Cir. 1997) (state court factual findings supporting conclusion that witness identification was not unduly suggestive presumed correct); Mack v. Caspari, 92 F.3d 637, 642 (8th Cir.) (state court factual findings on reliability of witness identification accorded large measure of deference), cert. denied, 117 S. Ct. 1117 (1997); Tomlin v. Myers, 30 F.3d 1235, 1242 (9th Cir. 1994) (state court factual findings regarding reliability of photographic line-up presumed correct). 2843. Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (state court’s determination of competency to stand trial presumed correct if “fairly supported by the record”); see Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993) (per curiam) (state court’s finding of competency merits presumption of correctness even after federal court remand when no evidence of substantial change between the two hearings); Bell v. Evatt, 72 F3d 421, 431 (4th Cir. 1995) (state court’s findings as to competency to stand trial entitled to presumption of correctness); Moody v. Johnson, 139 F.3d 477, 482 (Sth Cir.) (state court’s finding as to competency to stand trial entitled to presumption of correctness) cert. denied, 119 S.Ct 359 (1998); O’Rourke v. Endell, 153 F.3d 560, 567 (8th Cir. 1998) (same); Vargas v. Lambert, 159 F.3d 1161 (9th Cir. 1998) (same); Lafferty v. Cook, 949 F.2d 1546, 1549-50 (lOth Cir. 1991) (competency to stand trial factual issue subject to presumption of correctness, but content of standard of competency question of law); Oats v. Singletary, 141 F.3d 1018, 1025 (llth Cir. 1998) (state court’s determination of petitioner’s competence to stand trial entitled to presumption of correctness). But see Washington v. Johnson, 90 F.3d 945, 951 (5th Cir.) (question of competency treated as mixed question of law and fact reviewed de novo), cert. denied, 117 S. Ct. 1259 (1997).

2844. Demosthenes v. Baal, 495 U.S. 731, 734 (1990) (per curiam) (state court’s determination of competency to waive postconviction relief presumed correct because “fairly supported by the record”); see Hamilton v. Collins, 905 F.2d 825, 828 (5th Cir. 1990) (state court’s written findings regarding prisoner’s competence to waive postconviction proceedings fairly supported by record and therefore binding under Baal).

2845. Cabana v. Bullock, 474 U.S. 376, 389-90 (1986) (dictum). In Bullock, the Supreme Court held that, although the federal court had correctly concluded that the jury did not find that petitioner intended lethal force, the federal court had improperly ordered a new sentencing hearing without determining whether the state trial or appellate court had made such a finding. Id. at 383, 387. The Court determined that a state court’s finding on the issue would be entitled to a presumption of correctness. Id. at 387-88; see Deputy v. Taylor, 19 F.3d 1485, 1498 (3d Cir. 1994) (state court finding regarding petitioner’s culpability must be accorded presumption of correctness when procedure not flawed and conclusion supported by record); Tuggle v. Thompson, 57 F.3d 1356, 1371 (4th Cir. 1995) (same); Paradis v. Arave, 20 F.3d 950, 959 (9th Cir. 1994) (same); Hatch v. Oklahoma, 58 F.3d 1447, 1470 (lOth Cir. 1995) (same); White v. Wainwright, 809 F.2d 1478, 1481 (llth Cir. 1987) (same). 2846. Antiterrorism Act, supra note 1, 2254(e)(1) (amending standard from “convincing evidence” to “clear and convincing evidence”). Compare Meyers v. Gillis, 142 F.3d 664, 666 (3d Cir. 1998) (presumption does not apply where state court findings not fairly supported by the record); Howard v. Moore, 131 F.3d 399, 406 (4th Cir. 1997) (presumption is not overcome by petitioner’s allegations that peremptory strikes motivated by discriminatory intent); Carter v. Johnson, 131 F.3d 452, 460 n.l3 (Sth Cir. 1997) (presumption of correctness of competency finding not overcome by affidavit from psychiatrist concerning petitioner’s impaired mental abilities) and Williams v. Parke 133 F.3d 971, 973 (7th Cir. 1997) (presumption not overcome where petitioner’s absence during juror substitution found to be harmless); with In re Heidnik, 112 F.3d 105, 109-12 (3d Cir. 1997) (presumption of correctness of state court sanity finding overcome by testimony of three psychiatrists and unexplained contradiction between defendant’s claim of innocence and refusal to challenge impending execution) and Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.) (presumption of correctness of state court finding that jury not concerned about alleged juror misconduct overcome by proof that evidence of misconduct submitted in timely manner to court), cert. denied, 118 S. Ct. 586 (1997).

2847. Generally, an issue that involves an inquiry into a state of mind may still be considered a question of fact. Miller v. Fenton, 474 U.S. 104, 113 (1985). Furthermore, “an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question.” Id. Any principle, however, that can only be given meaning through its application to the facts of the case is generally regarded as a legal question. Id. at 114. Compare Levasseur v. Pepe, 70 F.3d 187, 191 (Ist Cir.

1995) (whether state trial court considered certain claims of petitioner and thereby waived his procedural default legal question not entitled to presumption of correctness); Cunningham v. Diesslin, 92 F.3d 1054, 1058, 1060 (lOth Cir. 1996) (whether government conduct violated plea agreement and whether petitioner entered a knowing and voluntary guilty plea present questions of law) and Jones v. Jones, 938 F.2d 838, 843 (8th Cir. 1991) (state appellate court finding that trial court’s implicit finding not erroneous legal conclusion and not entitled to presumption of correctness); Taylor v. Singletary, 148 F.3d 1276, 1276 (llth Cir. 1998) (voluntariness of confession is a question of law not entitled to presumption); with Powell v. Gomez, 33 F.3d 39, 41 (9th Cir. 1994) (psychiatric evaluation of petitioner submitted in state court more akin to assessment of credibility of witness than legal analysis; thus, question of fact subject to presumption of correctness).

2848. While 2254(e)(1) does apply to state court findings on “scene and action-setting questions” and other “distinctly factual” inquiries as to the circumstances surrounding the interrogation, the ultimate “in custody” determination “calls for application of the controlling legal standard to the historical facts,” and thus is not entitled to the presumption of correctness. Id.; see Levasseur v. Pepe, 70 F.3d 187, 193 (Ist Cir. 1995) (harmless error determination mixed question of law and fact not entitled to presumption of correctness); Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998) (determination of whether person who may have been “in custody” for Miranda purposes would have felt free to terminate questioning is a mixed question of law and fact not entitled to presumption of correctness); Deputy v. Taylor, 19 F.3d 1485, 1496 (3d Cir. 1994) (state court’s conclusion that constitutional error harmless mixed question of law and fact not entitled to presumption of correctness); Pratt v. Cain, 142 F.3d 226, 230 (Sth Cir. 1998) (adequacy of counsel’s performance and prejudice are mixed questions of law and fact not entitled to presumption of correctness); Cremeans v. Chapleau, 62 F.3d 167, 172 (6th Cir. 1995) (competence to plead guilty mixed question of law and fact not entitled to presumption); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995), (constitutionality of identification procedure mixed question of law and fact not entitled to presumption of correctness); Hood v. Helling, 141 F.3d 892, 896 (8th Cir. 1998) (whether codefendants’ defenses are so antagonistic as to raise a due process violation mixed question of law and fact not entitled to presumption) petition for cert. filed, (Aug 14, 1998) (No. 98-5656); Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993) (state court’s determination of whether hearsay statements sufficiently reliable to be admitted without violating Confrontation Clause mixed question of fact and law not entitled to presumption of correctness, but factual findings regarding timing, manner, and circumstances of hearsay statements accorded presumption of correctness); Castro v. Ward, 138 F.3d 810, 815 (lOth Cir. 1998) (competency to stand trial mixed question of law and fact not entitled to presumption of correctness).

Although the presumption of correctness applies to the factual circumstances underlying the voluntariness of a defendant’s statements or waiver of rights, it does not.apply to state court conclusions regarding the voluntariness of the statements or waiver. See Wellman v. Maine, 962 F.2d 70, 72 (Ist Cir. 1992) (voluntariness of guilty plea mixed question of law and fact not entitled to presumption of correctness); Matusiak v. Kelly, 786 F.2d 536, 544 (2d Cir. 1986) (same); Parry v. Rosemeyer, 64 F.3d 110, 113 (3d Cir. 1995) (same); Savino v. Murray, 82 F.3d 593, 603 (4th Cir. 1996) (same); Muniz v. Johnson, 132 F.3d 214, 219 (Sth Cir.) (voluntariness of confession reviewed de novo using presumptively correct state court findings) cert. denied, 118 S.Ct. 1793 (1998); Sprosty u Buchler, 79 F.3d 635, 646 (7th Cir. 1996) (voluntariness of confession legal question not entitled to presumption of correctness); Reese v. Delo, 94 F.3d 1177, 1183 (8th Cir. 1996) (voluntariness of confession mixed question of law and fact not entitled to presumption of correctness); Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir.) (voluntariness of confession legal question not entitled to presumption of correctness), cert. denied, 117 S. Ct. 1017 (1997); Cunningham v. Diesslin, 92 F.3d 1054, 1060 (lOth Cir. 1996) (voluntariness of guilty plea legal question not entitled to presumption of correctness); Baldwin v. Johnson, 152 F.3d 1304, 1311 (llth Cir. 1998) (voluntariness of petitioner’s statement presents legal question not entitled to presumption of correctness, but deference accorded to underlying factual findings of state court). But see Gomez v. Ahitow, 29 F.3d 1128, 1134 (7th Cir. 1994) (voluntariness of waiver of right to conflict-free counsel question of fact; therefore, state court finding entitled to presumption of correctness). In Marshall v. Lonberger, 459 U.S. 422 (1983), the Supreme Court held that the state court’s findings regarding the voluntariness of defendant’s guilty plea in a prior proceeding were entitled to a presumption of correctness because the findings were based on the state court’s determination of the defendant’s credibility during his testimony before the court. Id. at 432-37.

Although the presumption does apply to state court findings of fact made in the course of resolving claims of ineffective assistance of counsel, it does not apply to state court conclusions regarding claims of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 698 (1984) (within ineffective assistance of counsel claim, issues of counsel’s performance and defendant’s prejudice mixed questions of law and fact not entitled to presumption of correctness); Curtis v. Duval, 124 F.3d 1, 3 (Ist Cir. 1997) (ineffective assistance of counsel claim presents mixed question of law and fact not entitled to presumption of correctness); Jackson v. Byrd, 105 F.3d 145, 147 (3d Cir.) (while court will presume factual

findings are correct, ineffective assistance of counsel mixed question of law and fact not entitled to presumption), cert. denied, 117 S. Ct. 2442 (1997); Brown v. French, 147 F.3d 307, 311 (4th Cir. 1998) (same); Cockrum v. Johnson, 119 F.3d 297, 302 (Sth Cir. 1997) (same); Groseclose v. Bell, 130 F.3d 1161, 1163 (6th Cir. 1997) (same); Jenkins v. Nelson, 157 F.3d 485, 494 (7th Cir. 1998) (same); Seidel v. Merkle, 146 F.3d 750, 753 (9th Cir. 1998) (same); Parker v. Champion, 148 F.3d 1219, 1220 (lOth Cir. 1998) (same); Baldwin v. Johnson, 152 F.3d 1304, 1311 (llth Cir. 1998) (same). Ineffective assistance of counsel claims are discussed in Ineffective Assistance of Counsel in RIGHT TO COUNSEL in Part III. 2849. See, e.g., Thompson v. Keohane, 516 U.S. 99, 107 (1995) (whether suspect sufficiently “in custody” to require a Miranda warning mixed question of law and fact requiring independent review); Miller v. Fenton, 474 U.S. 104, 110 (1985) (voluntariness of confession question of law requiring independent determination by habeas court).

2850. Section 2254(d)(1) of the Antiterrorism Act denies habeas relief unless the proceedings in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

In Nobles v. Johnson, when the Fifth Circuit reviewed mixed questions of law and fact under 2254(d)(1) in order to determine if the state court’s conclusions involved an “unreasonable application” of clearly established federal law as determined by the Supreme Court, it held that an application of federal law is “unreasonable” if it is “so clearly incorrect that it would not be debatable among reasonable jurists.” 127 F.3d 409, 416-18 (Sth Cir.), cert. denied, 118 S. Ct. 1845 (1998) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (Sth Cir.), cert. denied, 117 S. Ct. 1114 (1997)).

Other circuits have agreed that 2254(d)(1) requires a deferential review of mixed questions of law and fact. See Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir. 1998) (determination of ineffective assistance of counsel is a mixed question that hinges upon overall fairness of trial); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.) (grant of mistrial by state trial judge mixed question of law and fact reviewed as to whether unreasonable application of clearly established federal law as defined by Supreme Court), cert. denied sub nom. 118 S. Ct. 1044 (1998); Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.) (under new

2254(d) standards, state court’s finding of ineffective assistance of counsel stands if it is “one of several equally plausible outcomes”), cert. denied, 118 S. Ct. 264 (1997); Jeffries v. Wood, 114 F.3d 1484, 1498-1500 (9th Cir. 1997) (dictum) (state court determination of whether introduction of extraneous information to jury violated petitioner’s right to fair trial mixed question of law and fact presumed correct unless standard unreasonably applied), cert. denied, 118 S. Ct. 586 (1997). For purely legal questions, the First, Fifth and Seventh Circuits have read 2254(d)(1) as requiring a different standard. In O’Brien v. Dubois, 145 F.3d 16, 23 (Ist Cir. 1998), the First Circuit found questions of law are to be overturned if they were decided “contrary to” clearly established federal law, as determined by the Supreme Court. See also Drinkard v. Johnson, 97 F.3d at 769. The Seventh Circuit, in Lindh v. Murphy, concluded that federal habeas courts are free to express an independent opinion on a legal issue but must rely on an “authoritative decision” of the Supreme Court and not the jurisprudence of the circuit, 96 F.3d 856, 868-70 (7th Cir.), rev’d on other grounds, 117 S. Ct. 2059, cert. denied, 118 S. Ct. 739 (1998).

The division of 2254(d)(1) into different standards of review for questions of law and mixed questions of law and fact has not been universally adopted. The Sixth Circuit has called attention to a possible alternative reading of 2254(d)(1). Harpster 128 F.3d at 327 (citing Martin v. Bissonette, 1997 WL 280602, *9 (Ist Cir. 1997), opinion revised and superseded by, 118 F.3d 871 (1997)). For both mixed questions of law and fact and pure questions of law, the court could first determine if clearly established Supreme Court precedent dictates a certain outcome which is contrary to that reached by the state court. If, though, it is a matter in which the Supreme Court has applied federal law absent clear, controlling precedent, the habeas court could then inquire as to whether the determination made by the state court is “unreasonable” in view other applications by the Supreme Court of the same law. Id. 2851. Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). In Finley, the Supreme Court held that there is no constitutional right to counsel in state collateral proceedings after exhaustion of direct appellate review. Id. (citing Ross v. Moffitt, 417 U.S. 600, 610-11 (1974)). The Court reasoned that, because the state has no obligation to provide postconviction review, due process does not require the appointment of counsel in such proceedings. Id. at 556. The Court also noted that the prisoner’s equal protection guarantee of “meaningful access” to the courts was not violated because the prisoner had been represented by counsel at trial and on direct appeal and had been provided with the necessary legal tools to pursue his claim. Id. (dictum); accord Coleman v. Thompson, 501 U.S. 722, 725 (1991) (reaffirming Finley; no constitutional right to counsel on appeal from state habeas trial court judgment); Murray v.

Giarratano, 492 U.S. 1, 9-10 (1989) (plurality opinion) (applying Finley to capital cases; no constitutional right to counsel for death row inmates seeking state habeas relief).

Although the Supreme Court has not yet spoken on the issue, the circuits agree that there is no constitutional right to counsel in a federal habeas proceeding. See Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991); Mackall v. Angelone, 131 F.3d 442, 418 (4th Cir.), cert. denied, 118 S. Ct. 907 (1998); Johnson v. Hargett, 978 F.2d 855, 859 (Sth Cir. 1992); Lostutter v. Peters, 50 F.3d 392, 396 (7th Cir. 1995); Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1995); Parkhurst v. Shillinger, 128 F.3d 1366, 1371 (lOth Cir. 1998); McBride v. Sharpe, 25 F.3d 962, 971 (llth Cir. 1994).

2852. Antiterrorism Act, supra note 1, 2254(i); see Coleman v. Thompson, 501 U.S. 722, 752 (1991) (petitioner could not claim ineffective assistance of counsel in postconviction proceedings because no constitutional right to counsel); Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995) (same); Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996) (same); Ritchie v. Eberhart, 11 F.3d 587, 592 (6th Cir. 1993) (same); Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993) (same); Lamp v. Iowa, 122 F.3d 1100, 1105-06 n.5 (8th Cir. 1997) (same); Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996) (same).

2853. Bounds v. Smith, 430 U.S. 817, 821-28 (1977) (plurality opinion). In Bounds, the Supreme Court held that a state must give state prisoners a “reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts” by providing some form of legal assistance. Id. at 825. See Sabers v. Delano, 100 F.3d 82, 84 (8th Cir. 1996) (per curiam) (petitioner claiming lack of access to courts must show that absence of library or attorney’s inadequacies hindered efforts to proceed with claim). In Johnson v. Avery, 393 U.S. 483 (1969), the Supreme Court held that it was unconstitutional for a state to prohibit inmates from assisting each other in filing habeas petitions when the state had not made alternative forms of legal assistance available. Id. at 490 & n.ll. Prisoners’ rights to meaningful access to the courts is discussed in Right of Access to Courts in SUBSTANTIVE RIGHTS RETAINED BY PRISONERS in Part VI.

2854. 21 U.S.C. 848(q)(4)(B) (1994). Compare Barnard v. Collins, 13 F.3d 871, 878-79 (Sth Cir. 1994) (district court erred in denying motion for appointment of counsel on abuse of writ grounds because 848(q)(4)(B) does not condition appointment of counsel on substantiality or nonfrivolousness of petitioner’s habeas claims) and Weeks v. Jones, 100 F.3d 124, 128-129 (I th Cir. 1996) (district court erred in finding habeas petition frivolous and setting aside appointment of counsel after termination of case when counsel applied for fees) with In re Pruett, 133 F.3d 275, 279 (4th Cir. 1997) (district court erred in granting motion for ex parte discovery of personnel files of officer involved in investigating crime for which defendant was convicted as discovery is not an investigative service within the meaning of 848(q)(4)(8)); Fuller v. Johnson, 114 F3d 491, 501-02 (Sth Cir. 1997) (district court did not err in denying motion for appointment of pathologists and clinical and forensic psychiatrists for petitioner who failed to show “substantial need”) and Burris v. Parke, 116 E3d 256, 259 (7th Cir. 1997) (district court did not err in denying motion for appointment of neuropsychologist when petitioner failed to make preliminary showing that the service “reasonably necessary”); Chaney v. Stewart, 156 F.3d 921, 926 (9th Cir. 1998) (district court, in its discretion, did not err in denying testimony of neurologist when found to be unnecessary).

In McFarland v. Scott, 512 U.S. 849, 854 (1994), the Supreme Court held that this statutory right to counsel for indigent, death-sentenced habeas petitioners attaches when the petitioner files a motion requesting appointment of counsel for his habeas corpus proceeding. Id. at 2572-73. But cf Sterling v. Scott, 57 F.3d 451, 458 (5th Cir. 1995) (petitioner denied right to counsel under 848(q)(4)(B) when had not exhausted state remedies). For related discussion of right to counsel in state habeas corpus proceedings, see Capital Cases in this Section.

2855. Section 2254 Rules, supra note 1, Rule 8(c); see Abdullah v. Norris, 18 F.3d 571, 573-74 (8th Cir. 1994) (appointment of counsel not required when trial court did not schedule evidentiary hearing and petitioner did not satisfy stringent standards for obtaining hearing); Ortiz v. Stewart, 149 F.3d 923, 933 (9th Cir. 1998) (appointment of counsel not necessary even though failure violated state law mandating evidentiary hearing where files and records showed conclusively that petitioner not entitled to relief). 2856. Section 2254 Rules, supra note 1, Rule 6(a).

2857. See 18 U.S.C. 3006A(a)(2)(B) (1994) (court may furnish counsel when interests of justice require and petitioner financially unable to afford counsel); Section 2254 Rules, supra note 1, Rule 8(c) (Section 2254 Rules do not limit court’s statutory authority to appoint counsel “at any stage of the case if the interest of justice so requires”). Compare Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997) (district court did not abuse discretion in denying petitioner counsel in habeas proceeding where petitioner’s chance of success not reasonable on the merits); Nachtigall v. Class, 48 F.3d 1076, 1082 (8th Cir. 1995) (district court did not abuse discretion in denying petitioner appointed counsel in habeas proceeding when petition not factually or legally complex and petitioner capable of investigating facts and presenting claims); LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (district court did not abuse discretion in denying petitioner appointed counsel in habeas proceeding when petitioner had good understanding of issues and ability to present his arguments forcefully) and McBride v. Sharpe, 25 F.3d 962, 971 (llth Cir. 1994) (district court did not err in declining to appoint counsel when facts of case did not indicate “interests of justice” required appointment of counsel) with Harris v. Champion, 15 F.3d 1538, 1567 (lOth Cir. 1994) (district court should consider appropriateness of appointing counsel for indigent petitioner when it decides to review merits in absence of exhaustion of state remedies). 2858. 28 U.S.C. 2250 (1994). Compare Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985) (filing fee waived when payment would force prisoner to surrender amenities of prison life) with In re Vey, 117 S.Ct. 1294, 1294 (1997) (Court denied petitioner’s request to proceed on present habeas claim in forma pauperis and barred petitioner from future in forma pauperis filings for extraordinary writs because of petitioner’s history of frivolous, repetitive filings) and Franklin v. Murphy, 745 F.2d 1221, 1231-32 (9th Cir. 1984) (order limited indigent’s filing without charge to six times per year without leave of court to file additional habeas or other civil actions involving fundamental constitutional rights). 2859. 28 U.S.C. 2243 (1994); see Ouimette v. Moran, 942 F.2d 1, 13 (Ist Cir. 1991) (federal court has broad discretionary powers under 2243; due process violation from prosecution’s cover-up and censorship of star witness’s criminal record warranted unconditional release of petitioner); Mathis v. Hood, 937 F.2d 790, 796 (2d Cir. 1991) (federal court has discretion under 2243 to grant lesser relief than requested by petitioner); Yohn v. Love, 76 F.3d 508, 525 (3d Cir. 1996) (federal court may fashion remedy including evidentiary ruling normally reserved for trial judge); Capps v. Sullivan, 13 F.3d 350, 352 (lOth Cir. 1993) (federal district courts have the authority to dispose of habeas corpus matters as “law and justice require” under 2243).

2860. 28 U.S.C. 2251 (1994) (“[A federal] judge . . . before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding . . . for any matter involved in the habeas corpus proceeding.”); see Brewer v. Aiken, 935 F.2d 850, 851 (7th Cir. 1991) (district court ordered “permanent” stay of execution pending outcome of new state sentencing hearing ordered in conditional grant of habeas writ); Johnson v. Dugger, 932 F.2d 1360, 1362 (llth Cir. 1991) (district court stayed petitioner’s execution while considering summary dismissal of habeas petition). Compare Teague v. Johnson, 151 F.3d 291, 291 (5th Cir. 1998) (once an appellate mandate issues, habeas petition is no longer pending for purposes of 2251).

In McFarland v. Scott, 512 U.S. 849 (1994), the Supreme Court held that when an indigent, death-sentenced petitioner files for appointment of counsel before filing a legally sufficient petition for habeas relief, the habeas proceeding has commenced for purposes of 2251 and the federal court is then authorized to order a stay of execution. Id. at 857. Otherwise, the statutory right to counsel for death-sentenced habeas petitioners under 21 U.S.C. 848(q)(4)(B) would be meaningless. Id. Compare Holmes v. Norris, 32 F.3d 1240, 1240-41 (8th Cir. 1994) (federal court granted motion for stay of execution and appointment of counsel to allow petitioner time to research and file second petition when petitioner had statutory right to counsel under 848(q)(4)(B) and received ineffective assistance from prior counsel) and Brown v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 1991) (federal court issued stay of execution when petitioner had not yet filed petition for writ of habeas, but had filed petition seeking appointment of counsel to do so) with Christy v. Horm, 115 F.3d 201, 204-207 (3d Cir. 1997) (holding that under McFarland federal habeas court cannot stay execution absent showing of imminent execution or that state would countenance execution while federal claims were pending) and Steffen v. Tate, 39 F.3d 622, 627 (6th Cir. 1994) (holding that McFarland does not permit federal court to stay execution when petitioner’s desire to delay proceedings only reason able petitioner had not yet filed petition). Stays of execution are discussed in Stays and Holds in CAPITAL PUNISHMENT in Part IV.

2861. See Lopez v. Scully, 58 F.3d 38, 43 (2d Cir. 1995) (resentencing hearing mandated for petitioner ineffectively represented by counsel); Lesko v. Lehman, 925 F.2d 1527, 1555 (3d Cir. 1991) (death sentence vacated and writ granted on remaining sentence unless state, within reasonable time, resentenced petitioner); Williams v. Dixon, 961 F.2d 448, 459 (4th Cir. 1992) (death sentence vacated and resentencing hearing mandated for consideration of mitigating evidence); Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (writ granted unless state within reasonable time conducts new resentencing hearing at which petitioner effectively represented by counsel); Hart v. Marion Correctional Inst., 927 F.2d 256, 259 (6th Cir. 1991) (writ granted unless state, within 90 days, conducts resentencing hearing before different judge; if new sentence longer than 15 years, petitioner may withdraw guilty plea and state may either retry under original indictment or grant release); Brewer v. Aiken, 935 F.2d 850, 851, 858 (7th Cir. 1991) (writ granted unless state, within 90 days, conducts new sentencing hearing); Hill v. Lockhart, 28 F.3d 832, 847-48 (8th Cir. 1994) (sentences vacated and state ordered to retry penalty for charges on which petitioner convicted); Gallego v. McDaniel, 124 F.3d 1065, 1079 (9th Cir.) (remanded with instructions for trial court to issue writ unless state court resentenced), cert. denied, 118 S. Ct. 231 (1998); Cave v. Singletary, 84 F.3d 1350, 1354 (llth Cir.) (writ granted unless state conducts resentencing hearing within 90 days; petitioner may waive objections for failure to commence within this stipulated time), cert. denied, 117 S. Ct. 774 (1997). Although the federal habeas court may condition issuance of the writ for habeas relief on a state’s failure to conduct resentencing hearings, the federal court may not condition issuance of the writ on the state court’s failure to impose a sentence mandated by the district court. See Smith v. Lucas, 9 F.3d 359, 365-67 (5th Cir. 1993) (district court improperly conditioned issuance of writ on state court’s failure to resentence death-sentenced petitioner to life imprisonment).

2862. See Glenn v. Dallman, 686 F.2d 418, 422-23 (6th Cir. 1982) (conviction reclassified when petitioner convicted of aggravated burglary, but facts and jury instructions only supported conviction for burglary, and adverse collateral consequences might result if conviction not reclassified).

2863. See Williams v. Bartlett, 44 F.3d 95, 102 (2d Cir. 1994) (writ granted unless state affords petitioner new trial within 60 days of district court’s order); Smith v. Horn, 120 F.3d 400, 419 (3d Cir.) (writ granted unless state retries petitioner for first degree murder within 180 days), cert. denied, 118 S. Ct. 1037 (1998); Knox v. Collins, 999 F.2d 824, 825-26 (5th Cir. 1993) (per curiam) (writ granted unless state retries petitioner within “reasonable time”; district court has discretion to determine what is “reasonable time” and does not necessarily mean “within 90 days”); Lindh v. Murphy, 124 F.3d 899, 901 (7th Cir.) (murder convictions remanded to state court to treat petitioner as not criminally responsible for killings unless within 120 days it offered him a new trial on mental-disease-or-defect issue), cert. denied, 118 S. Ct. 739 (1998); Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) (writ granted unless state retries petitioner within 120 days to correct constitutional defects that make petitioner’s current custody unlawful); Brown v. Borg, 951 F.2d 1011, 1017 (9th Cir. 1991) (writ granted unless petitioner retried promptly); Davis v. Reynolds, 890 F.2d 1105, 1112 (lOth Cir. 1989) (same); Jacobs v. Singletary, 952 F.2d 1282, 1296 (llth Cir. 1992) (same).

Some circuits allow the federal habeas courts to bar the state courts from conducting new trials when the error forming the basis for relief cannot be corrected in further proceedings. See Foster, 9 F.3d at 727 (district court had authority to prevent state from retrying successful habeas petitioner when retrial itself would violate petitioner’s constitutional rights); Capps v. Sullivan, 13 F.3d 350, 352 (lOth Cir. 1993) (district court had authority to bar retrial in state court when state failed to retry petitioner within 90 days of federal habeas court’s conditional grant of habeas relief).

2864. Compare Cody v. Henderson, 936 F.2d 715, 720-21 (2d Cir. 1991) (dictum) (federal court may order release only in “sufficiently egregious” cases, e.g., if federal court found due process violation, gave state notice and state court purposely allowed violation to continue); Burkett v. Cunningham, 826 F.2d 1208, 1223-25 (3d Cir. 1987) (federal court discharged petitioner’s convictions because petitioner incarcerated for six years without sentence and state had not complied with federal court order, issued two years earlier, to sentence petitioner within 60 days); Capps v. Sullivan, 13 F.3d 350, 352 (lOth Cir. 1993) (federal court had power to grant any form of relief necessary, including permanent discharge, when petitioner granted release unless new trial held within 90 days and that new trial had not been held) with Tejeda v. Dubois, 142 E3d 18, 25 (Ist Cir. 1998) (while conceding that district court judge is in best position to determine relief for ineffective assistance claim, court suggests release may be appropriate).

The federal courts have also ordered the petitioner’s release in cases involving egregious constitutional violations. See Ouimette v. Moran, 942 F.2d 1, 13 (Ist Cir. 1991) (petitioner’s unconditional release

ordered when petitioner’s due process rights violated by prosecution’s intentional concealment of chief witness’s extensive criminal record and immunity deal with state, despite petitioner’s multiple requests for exculpatory information from state); Lewandowski v. Makel, 949 F.2d 884, 889-90 (6th Cir. 1991) (petitioner’s unconditional release ordered when petitioner’s constitutional right to effective counsel violated by improper plea to first degree instead of second degree murder, when time served already exceeded average term for second degree murder).

2865. The petitioner may only appeal final orders issued by a federal habeas court. 28 U.S.C. 1291, 2253 (1994). Compare Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994) (district court’s order constituted final order subject to appellate jurisdiction under 1291 when it dismissed habeas petition for failure to exhaust state remedies) and Greenawalt v. Stewart, 105 E3d 1268, 1271-72 (9th Cir.) (district court order denying motions to vacate dismissal of habeas petition and renew time for appeal constitutes final order subject to appeal), cert. denied, 117 S. Ct. 794 (1997) with Armstrong v. Ahitow, 36 F.3d 574, 575 (7th Cir. 1994) (per curiam) (court of appeals lacked jurisdiction over appeal from order denying habeas petition when order not accompanied by entry of judgment); Van Orman v. Purkett, 43 F.3d 1201, 1202 (8th Cir. 1994) (court of appeals lacked jurisdiction over appeal from district court’s order transferring habeas corpus case to another district because order not “final, appealable order”) and Clisby v. Jones, 960 F.2d 925, 938 (llth Cir. 1992) (court of appeals lacked jurisdiction over appeal when district court granted habeas relief to petitioner on some but not all claims presented for consideration; court of appeals may not review district court decision until remaining claims are disposed of). Final orders are discussed in detail in Jurisdiction in APPEALS in this Part.

There is no right to appeal from a final order in a proceeding to test the validity of a warrant to remove the petitioner to another district or place of detention or trial or to test the validity of petitioner’s detention pending such removal proceedings. Antiterrorism Act, supra note 1, 2253(b).

2866. Antiterrorism Act, supra note 1, 2253(c)(1). While the Antiterrorism Act’s language permits a certificate of appealability to issue only from a “circuit justice or judge,” this has been interpreted to include certification by a “district judge who rendered the judgment” as Fed. R. App. P. 22(b), amended by the Act, allows. See Lozada v. U.S., 107 F.3d 1011, 1014-16 (2d Cir. 1997) (district court judge can issue certificate of appealability based on express grant of authority in Fed. R. App. P. 22(b)); U.S. v. Eyer, 113 F.3d 470, 472-74 (3d Cir. 1997) (same); Muniz v. Johnson, 114 F.3d 43, 45 (Sth Cir. 1997) (same); Kincade v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997) (same); U.S. v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (same); Houchin v. Zavaras, 107 F.3d 1465, 1468-69 (lOth Cir. 1997) (same); Edwards v. U.S., 114 F.3d 1083, 1084 (llth Cir. 1997) (same).

Some circuits may require the petitioner to apply first to the district court for certification of her appeal before applying to the circuit court. See Lozada, 107 F.3d at 1017 (inferring from Fed. R. App. P. 22(b) duty to request certification first from district court); Lyons, 105 F.3d at 1068 (noting First and Seventh Circuits promulgated rules requiring petitioner file certificate request first with district court). As indicated in Filing Deadlines in this Section, with the exception of capital cases, the Antiterrorism Act’s statutory amendments apply only to habeas petitions filed after the Act’s April 24, 1996 enactment. Lindh v. Murphy, 521 U.S. 320, 328 (1997).

Nevertheless, the circuits have split as to which law applies if the petition or motion for habeas relief was filed before the Act’s enactment but the request for a certificate of appealability was made after the Act’s enactment. Compare U.S. v. Perez, 129 F.3d 255, 259-60 (2d Cir.) (requirements for certificate of appealability not applicable in case filed before enactment of Antiterrorism Act), cert. denied, 119 S. Ct. 384 (1998); U.S. v. Skandier, 125 F.3d 178, 180-82 (3d Cir. 1997) (same); Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997) (same); Arredondo v. U.S., 120 F.3d 639, 639-40 (6th Cir. 1997) (same; noting Interim Local Rules in First Circuit establishing same rule) and U.S. v. Kunzman, 125 F.3d 1363, 1364 n.2 (lOth Cir.) (same), cert. denied, 118 S.Ct. 1375 (1998) with Tiedeman v. Benson, 122 F.3d 518, 520 (8th Cir. 1997) (date of filing of notice of appeal or similar document, not date of filing of habeas petition, controls which law applies; rule restricting retroactivity of Antiterrorism Act “generally” applies to substantive matters, not to new procedures); Edwards v. U.S., 114 F.3d 1083, 1084 (llth Cir. 1997) (same).

The Federal Rules of Appellate Procedure, as amended by the Antiterrorism Act, provide for the filing of a notice of appeal of a District Court order granting or denying habeas relief. In the absence of a certificate of appealability, the notice of appeal will be deemed by a circuit court to be a request for a certificate of appealability. Fed R. App. P., Rule 22(b). See Lozada v. U.S. 107 F.3d 1011, 1017 (2d Cir. 1997) (after district court denies certificate and notice of appeal made, circuit court decides certifiability of issues clearly grantable or deniable and permits appellant opportunity to make “substantial showing” on remaining issues before ruling on them); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997) (after partial grant of certificate of appealability by district court, filing notice of appeal

invokes circuit court review of certifiability of all issues raised in petition). If appeal is taken by a State or its representative, a certificate of appealability is not required. Fed. R. App. P. 22(b).

2867. Fed. R. App. P. 4(a)(1); see Flieger v. Delo, 16 F.3d 878, 882 (8th Cir. 1994) (notice of appeal deemed sufficiently effective despite petitioner’s failure to mention ruling he intended to appeal when ruling that he intended to appeal obvious, he substantially complied with requirements of Rule 3(c), and error did not mislead, surprise or prejudice state). Compare Houston v. Lack, 487 U.S. 266, 270, 276 (1988) (pro se prisoner’s notice of appeal deemed filed on date of delivery to prison authorities for forwarding to court clerk); Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997) (same); Burns v. Morton, 134 F.3d 109, 110 (3d Cir. 1998) (same); Cooper v. Brookshire, 70 F.3d 377, 378 (Sth Cir. 1998) (same); Thomas v. Gish, 64 F.3d 323, 324 (7th Cir. 1995) (same); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir. 1991) (pro se notice of appeal timely when petitioner delivered notice to prison authorities within 30 days of entry of judgment) and Williams v. Borg, 139 F.3d 737, 739 (9th Cir. 1998) cert. denied 1998 WL 541272 (same) with Martinez v. Hoke, 38 F.3d 655, 657 (2d Cir. 1994) (per curiam) (appeal dismissed for lack of jurisdiction because petitioner failed to move timely for extension after receiving notice of entry of judgment); Dison v. Whitley, 20 F.3d 185, 186-87 (5th Cir. 1994) (appeal dismissed for lack of jurisdiction because notice of appeal not timely filed when petitioner delivered notice to prison officials without postage and to unknown agent) and U.S. ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1239-40 (7th Cir. 1986) (per curiam) (pro se habeas appeal dismissed for lack of jurisdiction because notice of appeal filed more than 30 days after entry of judgment and late notice failed to allege excusable neglect or good cause).

2868. Antiterrorism Act, supra note 1, 2253(c)(2). Compare Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996) (claim concerning deficiency in charge of reasonable doubt merited certificate of appealability) with U.S. v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998) (Certificate of appealability properly denied where petitioner failed to make substantial showing of denial of constitutional right); Gendron v. U.S., 154 F.3d 672 (7th Cir. 1998) (same); Ramsey v. Bowersox, 149 F.3d 749, 760 (8th Cir. 1998) (same); Hogan v. Zavaras, 93 F.3d 711, 712 (lOth Cir. 1996) (same).

A certificate of appealability was formerly known as a certificate of probable cause. The standard for the issuance of a certificate of probable cause was a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893 (1983). There is no consensus among the courts as to the relationship between the two standards. Compare Reyes, 90 F.3d at 680 (certificate of appealability uses same “substantial showing” standard as former standard for certificate of probable cause); Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1996) (substantive standard same for denials of certificate of appealability and certificate of probable cause); Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.) (same), cert. denied, 117 S. Ct. 1114 (1997) and Lennox v. Evans, 87 F.3d 431, 434 (lOth Cir. 1996) (substantial showing of a denial of a constitutional right same standard as substantial showing of denial of a federal right), overruled on other grounds by U.S. v. Kunzman, 125 F.3d 1363 (lOth Cir. 1997) with Herrera v. Green, 96 F.3d 1010,1012 (7th Cir. 1996) (denial of certificate of probable cause forecloses possibility of obtaining certificate of appealability as certificate of appealability requires “substantial showing of denial of constitutional right and certificate of probable cause required “substantial showing of denial of a federal right” which seems a lesser standard); Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996) (standard for obtaining certificate of appealability more demanding than former standard for obtaining certificate of probable cause).

2869. Antiterrorism Act, supra note 1, 2253(c)(3). There is no agreement as to how to adjudicate certificates that do not specify which issues meet the “substantial showing” requirement. Compare Reyes v. Keane, 90 F.3d 676, 679-80 (2d Cir. 1996) (remand certificate to district court to specify issues); Hill v. Johnson, 114 F.3d 78, 81 (5th Cir. 1997) (same); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997) (same) and Porter v. Gramley, 112 F.3d 1308, 1311 (7th Cir.) (same), cert. denied 118 S.Ct. 886 (1998) with Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997) (certificate issued by district court failing to specify issues for appeal treated as application for certificate to circuit court). See also Else v. Johnson,104 F.3d 82, 83 (Sth Cir. 1997) (on reconsideration) (since habeas petition presented only one issue, issuance of certificate indicates certification of that issue). 2870. See Antiterrorism Act, supra note 1, 2253(c)(3). Section 2253(c)(3) places formal limits on issues a circuit court can examine on appeal. See Lackey v. Johnson, 116 F.3d 149 (Sth Cir. 1997) (court will examine only claims on which district court granted certificate of appealability).

2871. Strickland v. Washington, 466 U.S. 668, 698 (1984) (district court’s factual findings in course of deciding ineffectiveness claim subject to clearly erroneous standard, but determinations of counsel’s performance and prejudice to defendant mixed questions of law and fact); see O’Dell v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (district court’s factual findings reviewed for clear error), aff’d, 117 S.Ct. 1969 (1997); Childress v. Johnson, 103 F.3d 1221, 1244 (Sth Cir. 1997) (same); Groselose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997) (same); Harmon v. McVicar, 95 F.3d 620, 622 (7th Cir. 1996) (same); Wayne v. Benson, 89 F.3d 530, 533 (8th Cir. 1996) (same), cert. denied, 117 S. Ct. 776 (1997); Richmond v. Embry, 122 F.3d 866, 870 (lOth Cir.) (same), cert. denied, 118 S.Ct. 1065 (1998); Wallace v. Morrison, 87 F.3d 1271, 1275 (llth Cir. 1996) (same). 2872. 481 U.S. 770 (1987).

2873. Id. at 772, 776. The factors to be considered include (1) whether the applicant has made a strong showing that she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a release; (3) whether others interested in the proceeding will be substantially injured; and (4) whether the public interest would best be served by a release. Id. at 776. Compare Mathis v. Hood, 937 F.2d 790, 796 (2d Cir. 1991) (release pending new appeal reasonable interim relief when petitioner already served minimum sentence); Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) (release order issued by district court presumed correct when magistrate considered appropriate factors and petitioner asserted no special reasons warranting release order’s modification); Sanders v. Ratelle, 21 F.3d 1446, 1461-62 (9th Cir. 1994) (release reasonable when petitioner presented substantial evidence of actual innocence and when petitioner had already undergone two trials in state courts and lengthy postconviction proceedings) and Hannon v. Maschner, 981 F.2d 1142, 1145 (lOth Cir. 1992) (release reasonable when petitioner had already served 26 years at hard labor and state not prejudiced by ineffective assistance of counsel claim) with Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992) (denial of release pending new appeal reasonable when writ of habeas not meant to reach concurrent unexpired weapons violation conviction).

2874. Finley, 481 U.S. at 774-77; see U.S. v. Smith, 835 F.2d 1048, 1051 (3d Cir. 1987) (presumption of correctness afforded to district court’s custody determination); Levine v. Torvik, 986 F.2d 1506, 1512 n.3 (6th Cir. 1993) (district court has broad discretion when prescribing conditions for petitioner’s release based on petitioner’s mental health).

2875. Antiterrorism Act, supra note 1, 2261-2266. These sections comprise Chapter 154 of Title 28, entitled Special Habeas Corpus Procedures in Capital Cases. 2876. Antiterrorism Act, supra note 1, 2261, 2263-2264. In order for Chapter 154 to apply, a state must establish “a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort or otherwise become final for State law purposes.” Antiterrorism Act, supra note 1, 2261(b). The state can establish the mechanism by statute, rule of its court of last resort, or by an agency authorized by state law. Antiterrorism Act, supra note 1, 2261(b).

This state mechanism must offer counsel to all state prisoners who have received a death sentence and must provide for entry of a court order either (I) appointing counsel to represent an indigent prisoner who has accepted the offer or is competently unable to accept or reject, (2) finding that the prisoner rejected counsel, or (3) denying appointment of counsel upon a finding that the prisoner is not indigent. Antiterrorism Act, supra note 1, 2261(c). See Bennett v. Angelone, 92 F.3d 1336, 1341-42 (4th Cir. 1996) (when state habeas petition denied before enactment of state statute requiring appointment of counsel in postconviction proceedings, quid-pro-quo arrangement upset and 2261 restrictions do not apply). The statute or rule establishing this mechanism must provide competency standards for appointment of such counsel. Antiterrorism Act, supra note 1, 2261(b). Counsel appointed under this state mechanism must not have previously represented the prisoner in this case at trial or on direct appeal unless the

prisoner and counsel expressly request continued representation. Antiterrorism Act, supra note 1, 2261(d). Compare Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997) (dictum) (requirements of 2261 met only by state-wide application, not case-by-case or county-bycounty determinations); Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996) (state unsuccessfully opted-in when lacked statutory or appeals court standards for competency of counsel; questionnaire completed by counsel to evaluate each on case-by-case basis insufficient to meet 2261 demands), vacated on other grounds, 105 F.3d 209 (5th Cir. 1997) with Calderon v. Ashmus, 118 S. Ct. 1694, 1699 (1998) (respondents can litigate a state’s compliance with Chapter 154 when filing habeas petitions) and Booth v. Maryland, 112 E3d 139, 140-46 (4th Cir.) (claim by prisoners that Chapter 154 requirements not met by state standards for competency of counsel, compensation rates, and allowances for litigation expenses barred by Eleventh Amendment; proper challenge to state’s application of Chapter 154 available through individual habeas actions), cert. denied, 118 S. Ct. 2063 (1998). Ineffectiveness of this appointed counsel will not be grounds for relief under 2254. Antiterrorism Act, supra note 1, 2261(e).

2877. Antiterrorism Act, supra note 1, 2263(a). Conviction becomes final upon “final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.” Antiterrorism Act, supra note 1, 2263(a).

2878. Antiterrorism Act, supra note 1, 2263(b). The filing deadline is tolled from the date of either such filing until the final state disposition of the petition. Antiterrorism Act, supra note 1, 2263(b). 2879. Antiterrorism Act, supra note 1, 2263(b)(3). Such an extension, if granted, cannot exceed 30 days. Antiterrorism Act, supra note 1, 2263(b)(3). 2880. Antiterrorism Act, supra note 1, 2262(c)7.

2881. See Bennett v. Angelone, 92 F.3d 1336, 1341-42 (4th Cir. 1996) (dictum) (under capital provisions of Antiterrorism Act, habeas court gives greater deference to state court’s determinations and narrows issues cognizable on review if state meets appointment of counsel requirements). 2882. Antiterrorism Act, supra note 1, 2264(a).

2883. Antiterrorism Act, supra note 1, 2266. Expedited review applies to both initial, second or successive petitions and appeals. Antiterrorism Act, supra note 1, 2266(b)(2), (c)(1)(A)(2). The Antiterrorism Act states that petitions by death-sentenced petitioners are to be prioritized before all other matters. Antiterrorism Act, supra note 1, 2266(a). The final judgment by the district court must be given within 180 days of filing, although the district court can delay for up to 30 days upon a formal finding “that the ends of justice that would be served by allowing the delay outweigh the best interests of the public and the applicant in a speedy disposition of the application.” Antiterrorism Act, supra note 1,

2266(b)(1)(C)(i). States have the power to compel the district court to comply with these time limits by filing a writ of mandamus in the appropriate circuit court. Antiterrorism Act, supra note 1, 2266(b)(4)(B). Circuit courts hearing appeals from district courts’ determinations of habeas petitions have 120 days from filing of the reply brief or the answering brief, if no reply brief is filed. Antiterrorism Act, supra note 1,

2266(c)(1)(A). Petitions for rehearing must be ruled on within 30 days of filing or response to such filing and, if granted, determined within 120 days of such grant. Antiterrorism Act, supra note 1, 2266(c)(1)(B). Failure of any federal court to comply with the time limitations is not grounds for relief of a conviction or sentence. Antiterrorism Act, supra note 1, 2266(b)(4)(A), (c)(4)(A).

2884. Antiterrorism Act, supra note 1, 2262(a). 2885. Antiterrorism Act, supra note 1, 2262(b).

2886. Antiterrorism Act, supra note 1, 2262(c). See Second or Successive Petitions in this Section for a discussion of the requirements for such authorization. 2887. 28 U.S.C. 2255 (1994); accord Section 2255 Rules, supra note 1, Rule I advisory committee’s note. A federal prisoner may not petition for a writ of habeas corpus pursuant to 28 U.S.C. 2241 if she has not filed a 2255 motion or if she has been denied relief under a 2255 motion unless she can show that the 2255 remedy is “inadequate or ineffective to test the legality of [her] detention.” 28 U.S.C. 2255 (1994); see Triestman v. U.S., 124 E3d 361, 380 (2d Cir. 1997) ( 2255 remedy inadequate and ineffective because motion procedurally barred despite petitioner’s valid claim based on new statutory interpretation); Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir. 1988) ( 2255 motion not inadequate or ineffective despite alleged bias on part of sentencing judge because defendant could move for judge’s recusal or disqualification). A 2255 motion is the proper means to challenge the validity or lawfulness of a conviction, while a 2241 petition is the proper means to challenge the execution of a sentence or to challenge confinement that is not the result of a criminal court’s judgment. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998); U.S. v. Furman, 112 F.3d 435, 438 (lOth Cir. 1997). Compare Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 316-19 (Ist Cir. 1995) (pretrial detainee’s challenge to prison disciplinary action construed as 2241 petition); U.S. v. Tubwell, 37 F.3d 175, 177 (Sth Cir. 1994) (petitioner’s motion for initiation of federal parole revocation proceedings concurrent with state sentence proper under 2241); Demjanjuk v. Petrovsky, 776 F.2d 571, 576 (6th Cir. 1985) (petitioner’s request to review extradition order proper only under 2241), vacated on other grounds, 10 F3d 338 (1993); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (petitioner’s motion seeking good-time credits to reduce length of imprisonment proper only under 2241 because motion sought to attack length of sentence after conviction) and Bell v. U.S., 48 F.3d 1042, 1043 (8th Cir. 1995) (petitioner’s motion for credit on federal sentence for time served under “no bond” order proper only under 2241) with Pleasant v. Texas, 134 F.3d 1256, 1258 (Sth Cir. 1998) (petitioner’s claim that court used invalid state convictions to enhance his federal sentence proper under 2255); Kendrick v. Carlson, 995 F.2d 1440, 1446-47 (8th Cir. 1993) (petitioner’s claim for credit of time spent in foreign prison proper under 2255) and Bradshaw v. Story, 86 F.3d 164, 165 (lOth Cir. 1996) (petitioner’s claim that court used unconstitutional state convictions to enhance his federal sentence proper under 2255). A 2241 petition must be used to challenge actions of the U.S. Parole Commission in connection with a prisoner’s sentence. Section 2255 Rules, supra note 1, Rule 1 advisory committee’s note (“The challenge of decisions such as the revocation of probation or parole are not properly dealt with under 28 U.S.C. 2255.”); see U.S. v. Addonizio, 442 U.S. 178, 190 (1979) (Parole Commission’s actions do not retroactively affect validity of conviction itself, and thus “do not provide a basis for collateral attack” pursuant to 2255); Cabrera v. U.S., 972 F.2d 23, 26 (2d Cir. 1992) (challenge to actions of Parole Commission not cognizable under 2255); Billis v. U.S., 83 F.3d 209, 210 (8th Cir. 1996) (per curiam) (challenge to decision of Parole Commission under 2255 construed as 2241 motion); Doganiere v. U.S., 914 F.2d 165, 169-70 (9th Cir. 1990) (challenge to decision of Parole Commission not cognizable under 2255; proper challenge to Parole Commission decision by means of 2241); Hajduk v. U.S., 764 F.2d 795, 796 (llth Cir. 1985) (per curiam) (same).

Section 2255’s limitation of 2241 habeas petitions does not violate the Constitution’s provision against suspension of the writ of habeas corpus. See Swain v. Pressley, 430 U.S. 372, 381 (1977) (substitution of adequate and effective collateral remedy for federal prisoners not unconstitutional suspension of writ of habeas corpus because 2255 “exact equivalent” of habeas corpus petition); Kaufman v. U.S., 394 U.S. 217, 221-22 (1969) ( 2255 intended to provide remedy exactly commensurate with that provided by habeas corpus).

2888. See Section 2255 Rules, supra note 1, Rule 1 advisory committee’s note (lack of filing fee, automatic availability of files related to judgment, broader discovery, and applicability of federal criminal rules differentiate 2255 motion from habeas petition).

2889. 28 U.S.C. 2255 (1994); accord Section 2255 Rules, supra note 1, Rule 1. The custody requirement for federal prisoners under 2255 is the same as that for state prisoners under 2254. See Section 2255 Rules, supra note 1, Rule 1 advisory committee’s note (“For a discussion of the ‘custody’ requirement and the intended limited scope of this inquiry, see advisory committee note to 2254 Rule 1.”). A prisoner is considered “in custody” under 2255 where still subject to a period of supervised release. See Peck v. U.S., 73 F.3d 1220, 1224 (2d Cir. 1995), vacated on other grounds, 106 F.3d 450 (2d Cir. 1997); U.S. v. Essig, 10 F.3d 968, 970 n.3 (3d Cir. 1993); Kusay v. U.S., 62 F.3d 192, 192 (7th Cir. 1995); U.S. v. Span, 75 F3d 1383, 1386 (9th Cir. 1996). The custody requirement for a 2255 petitioner is also satisfied if the prisoner is currently in custody under the judgment of a state court, but is subject to future custody under a judgment of a federal district court. Section 2255 Rules, supra note 1, Rule 1(2). Court imposed fines or costs related to imprisonment do not meet custody requirements. See Smullen v. U.S., 94 F.3d 20, 21 (Ist Cir. 1996) (challenge to $121,377.78 restitution order not cognizable under

2255, even where petitioner imprisoned for same offense); U.S. v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995) (challenge to cost of imprisonment and supervised release not cognizable under 2255); U.S. v. Hernandez, 94 F.3d 606, 613 (lOth Cir. 1996) (challenge to conspiracy conviction not cognizable under

2255 when defendant received no sentence other than $50 assessment for that conviction); cf., U.S. v. Gaudet, 81 F.3d 585, 592 (Sth Cir.1996) (challenge to forfeiture of pension benefits not cognizable under 2255). Whether an individual is in custody for 2255 purposes is determined when the habeas action is filed. See U.S. v. Bryson, 981 F.2d 720, 726 (4th Cir. 1992) (expiration of sentence after prisoner’s habeas filing did not render action moot); Nguyen v. U.S., 114 F.3d 699, 703 (8th Cir. 1997) (completion of imprisonment and parole prior to 2255 adjudication did not render action moot since motion filed while in federal custody). The custody requirement is discussed in greater detail in Jurisdiction and Venue in HABEAS RELIEF FOR STATE PRISONERS in this Part.

2890. Compare U.S. v. Morgan, 346 U.S. 502, 512-13 (1954) (writ of coram nobis available after petitioner served full sentence and challenged federal conviction used to justify increase in state sentencing); U.S. v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989) (writ of coram nobis available when prisoner no longer in custody); U.S. v Drobny, 955 F.2d 990, 996 (Sth Cir. 1992) ( 2255 motion construed as coram nobis petition because petitioner not in custody); U.S. v. Folak, 865 F.2d 110, 113 (7th Cir. 1988) (writ of coram nobis generally available only when petitioner cannot satisfy 2255 custody requirement) and U.S. v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995) ( 2255 motion construed as coram nobis where petitioner corporation cannot satisfy custody requirement) with U.S. v. Kindle, 88 F.3d 535, 536 (8th Cir. 1996) (per curiam) (writ of coram nobis not available to petitioner still in custody); U.S. v. Brown, 117 F.3d 471, 474-75 (llth Cir. 1997) (writ of coram nobis construed as 2255 motion when petitioner still subject to supervised relief).

Generally, coram nobis does not include claims that could have been raised on direct appeal. See U.S. v. Osser, 864 F.2d 1056, 1061-62 (3d Cir. 1988) (coram nobis relief not available when petitioner did not raise question of unsettled law on direct appeal). Newly discovered evidence that pertains solely to the guilt or innocence of the petitioner will not provide a sufficient basis for issuance of the writ. See Moody v. U.S., 874 F.2d 1575, 1577 (llth Cir. 1989) (coram nobis petition proffering new evidence solely relevant to questions of petitioner’s guilt or innocence not sufficient under compelling circumstances standard of Morgan).

One circuit has held that before coram nobis review may be granted the court must find that: (1) a more usual remedy is not available; (2) valid reasons existed for not attacking the conviction earlier; (3) adverse consequences of the conviction suffice to satisfy the case or controversy requirement of Article

III of the U.S. Constitution; and (4) the error to be redressed is of a fundamental character. U.S. v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991); see also Hager v. U.S., 993 F.2d 4, 5 (Ist Cir. 1993) (coram nobis relief available when petitioner provides: (1) explanation of why relief not sought earlier; (2) evidence that petitioner continues to suffer collateral consequences from conviction; and (3) demonstration that error of “most fundamental” character).

The writ of coram nobis may be used to relitigate claims already fully aired at trial if the petitioner shows that (1) her conviction has produced “lingering civil disabilities,” and (2) the error is a type of defect that would have justified habeas relief during imprisonment. U.S. v. Keane, 852 F.2d 199, 203 (7th Cir. 1988). Circuit courts have adopted different definitions of “civil disability.” The Seventh Circuit requires that (1) the disability cause a present harm, (2) the disability arise out of the erroneous conviction, and (3) the potential harm be more than incidental. Howard v. U.S., 962 F.2d 651, 653-54 (7th Cir. 1992). Other circuits have adopted a less restrictive view. See U.S. v. Mandel, 862 F.2d 1067, 1075 n.12 (4th Cir. 1988) (felony conviction seriously affects person’s reputation and economic opportunities); Hirabayashi v. U.S., 828 F.2d 591, 606-07 (9th Cir. 1987) (“Any judgment of misconduct has consequences for which one may be legally or professionally accountable.”). It is also not clear what type of defect is sufficient to obtain coram nobis relief. Compare Stoneman, 870 F.2d at 106 (error must relate to jurisdiction of court and not error, such as faulty jury instructions, that could be remedied by new trial); Blanton v. U.S., 94 F.3d 227, 228 (6th Cir. 1996) (error must be of the most fundamental character, such as would render the proceeding itself invalid); McKinney v. U.S., 71 F.3d 779, 781 (9th Cir. 1995) (same) and Lowery v. U.S., 956 F.2d 227, 229 (1I th Cir. 1992) (per curiam) (error must be of fundamental nature and no statutory remedy otherwise available or adequate) with Nicks v. U.S., 955 F.2d 161, 167 (2d Cir. 1992) (writ of coram nobis properly granted when competency hearing required but not held); Mandel, 862 F.2d at 1075 (writ of coram nobis properly granted when retroactive change in law made jury instructions inappropriate); Allen v. U.S., 867 F.2d 969, 972 (6th Cir. 1989) (writ of coram nobis properly granted when indictment and jury instructions resulted in conviction based on impermissible theory of liability) and McClelland, 941 F.2d at 1002-03 (writ of coram nobis properly granted when jury given improper burden of proof instruction). One circuit has held that coram nobis relief may not be sought by a decedent’s estate. McKinney, 71 F.3d at 782-83 (coram nobis protects interest of individual who seeks to vacate unlawful conviction, not those of any other person or entity).

2891. 28 U.S.C. 2255 (1994). A court that has decided any issue affecting the terms of a petitioner’s sentence is a “sentencing court.” See U.S. v. Romero-Vilca, 850 F.2d 177, 178-79 (3d Cir. 1988) (court that accepted defendant’s guilty plea is sentencing court); U.S. v. Flores, 616 F.2d 840, 842 (Sth Cir. 1980) (court that accepted defendant’s plea bargain is sentencing court); Dougherty v. White, 689 F.2d 142, 143 (8th Cir. 1982) (court that extended defendant’s probation is sentencing court). 2892. 28 U.S.C. 2255 (1994); see Murchu v. U.S., 926 F.2d 50, 57 (Ist Cir. 1991) (per curiam) (claim that judge initiated or participated in plea discussions cognizable under 2255); Salas v. U.S., 139 F.3d 322, 324-25 (2d Cir.) (per curiam) (holding that guilty plea to “use” of a firearm was not knowing and intelligent is cognizable where subsequent Supreme Court decision changed definition of that crime (construing Bailey v. U.S., 516 U.S. 137, 143 (1995))), cert. denied, 118 S.Ct. 2377 (1998); U.S. v. Flenory, 876 F.2d 10, 11 (3d Cir. 1989) (claim that sentence imposed in violation of plea bargain cognizable under 2255); U.S. v. Dula, 989 F.2d 772, 776 (Sth Cir. 1993) (claim of violation of disclosure rights under Brady v. Maryland, 373 U.S. 83 (1963), cognizable under 2255); Taylor v. U.S., 985 F.2d 844, 845-46 (6th Cir. 1993) (per curiam) (claim of conflict of interest between petitioner and attorney cognizable under 2255); U.S. v. Mosley, 967 F.2d 242, 243 (7th Cir. 1992) (claim of ineffective assistance of counsel cognizable under 2255); Bear Heels v. U.S., 993 F.2d 1325, 1325 (8th Cir. 1993) (per curiam) (claim of double jeopardy violation cognizable under 2255); U.S. v. SanclementeBejarano, 861 F.2d 206, 211 (9th Cir. 1988) (per curiam) (claim of ineffective assistance of counsel properly pursued through 2255, not direct appeal, because 2255 allows opportunity to develop “factual basis” for review); Shukwit v. U.S., 973 F.2d 903, 904 (llth Cir. 1992) (per curiam) (claim that petitioner sentenced on basis of false information in presentence report cognizable under 2255).

In Stone v. Powell, 428 U.S. 465 (1976), the Court held that when a state prisoner has had a full and fair opportunity to litigate Fourth Amendment claims, a federal court will not grant 2254 habeas corpus relief based on those claims. Id. at 481-82. The Ninth Circuit and Tenth Circuit have extended the Supreme Court’s holding in Stone to federal prisoners petitioning for relief under 2255. See OrtizSandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (petitioner’s allegation that protective sweep violated Fourth Amendment not cognizable under 2255 when federal prisoner had full and fair opportunity to litigate claim at trial); U.S. v. Cook, 997 F.2d 1312, 1317-18 (lOth Cir. 1993) (petitioner’s claim that search warrant invalid not cognizable under 2255 when prisoner had full and fair opportunity

to litigate claim at trial and on direct appeal). But see Campino v. U.S., 968 F.2d 187, 189 (2d Cir. 1992) (rejecting 2255 petitioner’s Fourth Amendment violation claim for failure to raise on direct appeal or show cause and prejudice, but not on basis of Stone); Matta-Ballesteros v. Henman, 896 F.2d 255, 262 n.8 (7th Cir. 1990) (limiting Stone holding to denial of Fourth Amendment claims occurring under 2254). 2893. 28 U.S.C. 2255 (1994); see U.S. v. Osiemi, 980 F.2d 344, 345 (Sth Cir. 1993) (claim that indictment fails to state offense challenges jurisdiction of convicting court and is cognizable under 2255); Chambers v. U.S., 22 F.3d 939, 946 (9th Cir. 1994) (claim that statute under which petitioner convicted is now unconstitutional challenges court’s jurisdiction and is cognizable under 2255), vacated on other grounds, 47 F.3d 1015 (9th Cir. 1995); Harris v. U.S., 149 F.3d 1304, 1309 (llth Cir. 1998) (challenge to trial court’s jurisdiction to impose enhanced sentence proper under 2255). 2894. 28 U.S.C. 2255 (1994); see U.S. v. DiPasquale, 859 F.2d 9, 10, 13 (3d Cir. 1988) (claim that parole term exceeded statutory maximum cognizable under 2255); Neary v. U.S., 998 F.2d 563, 565 (8th Cir. 1993) (claim that government failed to timely file information before petitioner’s prior conviction used to enhance sentence cognizable under 2255); U.S. v. Long, 787 F.2d 538, 538-39 (lOth Cir. 1986) (claim that conviction based on impermissible multiple counts cognizable under explicit provision of 2255 even though not previously raised on direct appeal). A district court may not have jurisdiction to entertain a 2255 motion if the sentence imposed is within statutory limits. See U.S. v. Springs, 988 F.2d 746, 747-48 (7th Cir. 1993) (sentence within Sentencing Guidelines not reviewable under 2255); Fernandez v. U.S., 941 E2d 1488, 1494 (llth Cir. 1991) (sentence within maximum allowed by RICO not reviewable under 2255).

2895. 28 U.S.C. 2255 (1994). “The catch-all fourth category includes only assignments of error that reveal `fundamental defects’ which . . . `result in a complete miscarriage of justice . ..’ “David v. U.S., 134 F.3d 470, 474 (Ist Cir. 1998) (quoting Hill v. U.S., 368 U.S. 424, 428 (1962)).

2896. Davis v. U.S., 417 U.S. 333, 346 (1974); Hill v. U.S., 368 U.S. 424, 428 (1962); accord Section 2255 Rules, supra note 1, Rule 1 advisory committee’s note. In Hill, the Supreme Court held that the district court’s failure to allow the defendant to make a statement before sentencing, in violation of FED. R. CRIM. P. 32(a), was not a “fundamental defect which inherently results in a complete miscarriage of justice,” and therefore the error could not be raised under 2255. 368 U.S. at 426, 428-29. In contrast, when a federal court invalidated the Selective Service regulations under which the defendant was convicted, the Court held that the intervening change in law “inherently result[ed] in a complete miscarriage of justice” justifying relief under 2255. Davis, 417 U.S. at 339, 346-47. Following the decisions in Hill and Davis, the circuits have clarified what types of error merit 2255 review. Compare U.S. v. Perez, 952 F.2d 908, 909-10 (5th Cir. 1992) (per curiam) (court’s failure to decrease sentence for acceptance of responsibility or to make proper findings in support of such denial as required by FED. R. CRIt,Ms. P. 32(c)(3)(D) not fundamental defect subject to 2255 review); Nichols v. U.S., 75 F.3d 1137, 1145 (7th Cir. 1996) (court’s error in calculating defendant’s sentencing guideline range not fundamental defect subject to 2255 review); Auman v. U.S., 67 F.3d 157, 160-61 (8th Cir. 1995) (court’s alleged improper use of prior conviction as predicate offense in determining career offender status of defendant under Sentencing Guidelines not fundamental defect cognizable under 2255); U.S. v. Blackwell, 127 F.3d 947, 954 (lOth Cir. 1997) (misinformation as to co-conspirator’s sentence does not rise to level of fundamental defect); U.S. v. Tamayo, 80 F.3d 1514, 1519 (llth Cir. 1996) (court’s failure to ask defendant represented by attorney whether defendant had anything to say before sentencing imposed not fundamental defect cognizable under 2255) and U.S. v. Pollard, 959 F.2d 1011, 1020-22 (D.C. Cir. 1992) (court’s acceptance of petitioner’s plea agreement, when such acceptance prerequisite to petitioner’s sick wife securing sentence reducing plea agreement, deemed not sufficiently coercive to meet Hill standard for 2255 review) with Singleton v. U.S., 26 F.3d 233, 236-37 (Ist Cir. 1994) (erroneous jury instruction cognizable under 2255 unless court finds it “highly probable” that challenged action did not affect jurors’ judgment); Siddiqi v. U.S., 98 F.3d 1427, 1438 (2d Cir. 1996) (government’s pursual of four different theories of guilt with ultimate adoption of legally inadequate theory was “miscarriage of justice” for 2255 purposes); U.S. v. Biberfeld, 957 F.2d 98, 102-03 (3d Cir. 1992) (knowing reliance by prosecutor on allegedly perjured testimony of key witness, when allegation sufficiently supported, fundamental defect cognizable under 2255); Buggs v. U.S., 153 F.3d 439, 443 (7th Cir. 1998) (conviction for use of firearm based on insufficient evidence is constitutional issue cognizable under

2255); Poor Thunder v. U.S., 810 F.2d 817, 822 (8th Cir. 1987) (trial court’s reliance on factually inaccurate presentence investigation report fundamental defect cognizable under 2255) and U.S. v.

Garfield, 987 F.2d 1424, 1428 (9th Cir. 1993) (failure to resolve factual dispute in petitioner’s presentence report, as required by FED. R. CRIM. P. 32(c)(3)(D), fundamental defect under 2255).

Technical violations of FED. R. CRIM. P. Il, which establishes proper procedure for entering guilty pleas, usually do not amount to a miscarriage of justice. See U.S. v. Timmreck, 441 U.S. 780, 783-84 (1979) (court’s failure to inform defendant of mandatory parole term before accepting defendant’s guilty plea, in violation of Rule 11, not fundamental defect warranting 2255 relief). Compare Padilla Palacios v. U.S., 932 F.2d 31, 35-36 (Ist Cir. 1991) (per curiam) (court’s imposition of postconfinement monitoring after informing petitioner that such monitoring would not be imposed, in violation of Rule 11, not cognizable under 2255); Lucas v. U.S., 963 F.2d 8, 13-15 (2d Cir. 1992) (dictum) (court’s failure to inform defendant of possible fine and special parole term, in violation of Rule 11, not fundamental defect warranting 2255 review when defendant failed to object or withdraw plea when given opportunity); Owen v. U.S., 660 F.2d 696, 702 (6th Cir. 1981) (per curiam) (court’s failure to inquire into voluntariness of plea, in violation of Rule 11, did not warrant 2255 relief when defendant fully advised of rights and penalties); Haase v. U.S., 800 F.2d 123, 126-27 (7th Cir. 1986) (court’s failure to obtain admission of guilt as to intent, in violation of Rule 11, did not render guilty plea subject to collateral attack); Rogers v. U.S., 1 F.3d 697, 700 (8th Cir. 1993) (per curiam) (defendant’s claim of Rule 11 violation when court failed to inform petitioner that recommended sentence under plea agreement might not be accepted by court not cognizable under 2255); U.S. v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987) (court’s failure to inform defendant of possibility of restitution and maximum possible penalty, in violation of Rule 11, not constitutional error and not cognizable under 2255) and Lilly v. U.S., 792 F.2d 1541, 1544 (llth Cir. 1986) (court’s failure to advise defendant that he could not withdraw guilty plea if court rejected government’s recommended sentence, in violation of Rule 11, did not warrant 2255 relief because did not result in miscarriage of justice) with U.S. v. Allard, 926 F.2d 1237, 1243-44 (Ist Cir. 1991) (defendant’s claim of Rule 11 violation that defendant did not understand charge at time of plea agreement cognizable under 2255); U.S. v. Cole, 813 F.2d 43, 47-48 (3d Cir. 1987) (defendant’s claim of Rule 11 violation that court failed to inquire into defendant’s admission of ingesting drugs and such violation precluded finding of voluntary and knowing waiver of constitutional rights cognizable under

2255); U.S. v. Carter, 117 F.3d 262, 264 (Sth Cir. 1997) (per curiam) (defendant’s claim of Rule 11 violation that court accepted guilty plea with insufficient factual basis cognizable under 2255); U.S. v. Mercer, 691 F.2d 343, 347 (7th Cir. 1982) (defendant’s claim of Rule II violation when not afforded opportunity to withdraw guilty plea after court rejected certain terms of plea agreement cognizable under

2255); U.S. v. Roberts, 5 F.3d 365, 370 (9th Cir. 1993) (defendant’s claim of Rule 11 violation that court failed to advise defendant of a term of his supervised release cognizable under 2255) and U.S. v. Pogue, 865 F.2d 226, 228-29 (lOth Cir. 1989) (per curiam) (defendant’s claim of Rule 11 violation that court informed petitioner that maximum fine $2,000 but ordered payment of $1.75 million in restitution cognizable under 2255).

2897. See Fiumara v. U.S., 727 F.2d 209, 213 (2d Cir. 1984) (violation of wiretapping statute not fundamental defect and not cognizable under 2255); U.S. v. Stevens, 851 F.2d 140, 143-44 (6th Cir. 1988) (violation of FED. R. CRIM. P. 32(a)(1)(A), when court failed to ensure that defendant and attorney read and discussed presentence report, not cognizable under 2255 because court did not rely on false information contained in report at sentencing); Shigemura v. U.S., 726 F2d 380, 381 (8th Cir. 1984) (per curiam) (violation of rights under Interstate Agreement on Detainers Act not cognizable under 2255 absent showing of prejudice in imprisonment or defense).

2898. 28 U.S.C.A. 2255 (West Supp. 1997). The limitations imposed by the Antiterrorism Act apply only to cases filed after the Act’s effective date of April 24, 1996. See Lindh v. Murphy, 117 S.Ct. 2059, 2063 (1997) (1996 amendments to habeas corpus statute do not apply to state inmate’s pending non-capital case); David v. U.S., 134 F.3d 470, 473 n.l (Ist Cir. 1998) (explicitly applying the Lindh exemption to 2255); U.S. v. Carter, 117 F.3d 262, 264 (Sth Cir. 1997) (per curiam) (same); Goodman v. U.S., 151 F.3d 1335, 1337 (llth Cir. 1998) (same).

2899. The one-year period starts from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C.A.

2255 (West Supp. 1997). See Gendron v. U.S., 154 F.3d 672, 674 (7th Cir. 1998) (per curiam) (prisoner who decides not to seek Supreme Court certiorari will have convictions considered final on date Court of Appeals decides her direct appeal).

In at least one circuit, a pro se habeas petition may be considered “filed” on the date that petitioner tenders the required documents to prison authorities for mailing to the court, rather than the date filing fee is paid. Spotville v. Cain, 149 F.3d 374, 378 (Sth Cir. 1998).

2900. 28 U.S.C. 2255 (1994); accord Section 2255 Rules, supra note 1, Rule 5 advisory committee’s note (no requirement that movant exhaust remedies prior to seeking 2255 relief, but probably must complete pending direct appeal first).

2901. Section 2255 Rules, supra note 1, Rule 5 advisory committee’s note (courts have held 2255 motion inappropriate if movant simultaneously appealing decision). See U.S. v. Gordon, 634 F.2d 638, 638-39 (lst Cir. 1980) (petitioner may not have 2255 motion considered while direct appeal pending); Fassler v. U.S., 858 F.2d 1016, 1019 (Sth Cir. 1988) (per curiam) (petitioner may not collaterally attack conviction until affirmed on direct appeal); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (petitioner may not have 2255 motion considered while direct appeal pending, absent extraordinary circumstances); U.S. v. Robinson, 8 F.3d 398, 406 (7th Cir. 1993) (same); U.S. v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991) (petitioner may not file 2255 motion when direct appeal pending); U.S. v. Thurmond, 7 F.3d 947, 949 n.2 (lOth Cir. 1993) (petitioner’s 2255 motion inappropriate if simultaneously appealing except in extraordinary circumstances); U.S. v. Chapman, 866 F.2d 1326, 1335 (llth Cir. 1989) (court of appeals may not consider movant’s appeal from denial of 2255 motion while direct appeal pending). But see U.S. v. Diaz-Martinez, 71 F.3d 946, 949 (lst Cir. 1996) ( 2255 motion appeal consolidated with direct appeal when both addressed same issue); O’Connor v. U.S., 133 F.3d 548, 550-51 (7th Cir. 1998) (while appeal from denied motion for new trial pending, 2255 motion filed later should be given priority since waiting for appeal might foreclose one-year limit for 2255 motion); U.S. v. Montgomery, 998 F.2d 1468, 1472 (9th Cir. 1993) ( 2255 motion appeal consolidated with direct appeal when both addressed same issue).

2902. Section 2255 Rules, supra note 1, Rule 5 advisory committee’s note (no “jurisdictional bar” to district court’s entertaining 2255 motion during pendency of direct appeal, but “orderly administration of criminal law precludes considering such a motion absent exceptional circumstances”). It is unclear exactly what situations will lead to a finding of exceptional circumstances. Compare Sunal v. Large, 332 U.S. 174, 179, 181 (1947) (prisoner may obtain habeas relief without exhausting direct appeals only in exceptional circumstances when error flagrant and no other remedy available; apparent futility of appeal does not excuse failure to appeal) and Bowen v. Johnston, 306 U.S. 19, 27 (1939) (prisoner may obtain habeas relief based on exceptional circumstances when split of authority exists between state and federal law regarding basis for petition) with Ingber v. Enzor, 841 F.2d 450, 454-55 (2d Cir. 1988) (prisoner’s failure to exhaust direct appeals excused when new interpretation of mail fraud rule, announced by Supreme Court after time for appeals expired, applied retroactively) and Poor Thunder v. U.S., 810 F.2d 817, 823 (8th Cir. 1987) (prisoner’s failure to appeal from denial of FED. R. CRIM. P. 35 motion excused when proceeding pro se). A court may review an unexhausted claim to promote judicial efficiency. See Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983) (doctrine of exhaustion of administrative remedies not jurisdictional requirement but based on obvious good sense; reviewing court disposed of issue on merits when convinced that claim without merit and no purpose served by remand for hearing on exhaustion question).

2903. U.S. v. Frady, 456 U.S. 152, 162-66 (1982). A variety of claims have been deemed waived because of failure to raise them at trial or on direct appeal. See Graziano v. U.S., 83 F.3d 587, 589-90 (2d Cir. 1996) (Sentencing Guidelines violation claim waived under 2255 when not raised on direct appeal); U.S. v. Cervantes, 132 F.3d 1106, 1109 (Sth Cir. 1998) (same); Grant v. U.S., 72 F.3d 503, 505-06 (6th Cir. 1996) (failure to make explicit fact finding claim waived under 2255 when not raised on direct appeal); Dawson v. U.S., 77 F.3d 180, 181-83 (7th Cir. 1996) (double jeopardy claim waived under

2255 when not raised on direct appeal); Love v. Tippy, 128 F.3d 1258, 1259 (8th Cir. 1997) (where claim challenging use of state conviction to enhance federal sentence was not raised on direct appeal, and did not involve failure to appoint counsel, such claim is procedurally defaulted); U.S. v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (drug sentence based on incorrect substance claim waived under 2255 when not raised before sentencing court or on direct appeal), cert. denied, 117 S. Ct. 2444 (1997); U.S. v. Peloso, 824 F.2d 914, 915 (llth Cir. 1987) (per curiam) (sentencing error claim waived under 2255 and

2241 when petitioner failed to object to psychiatric report at sentencing). But see U.S. v. Osiemi, 980 F.2d 344, 345 (Sth Cir. 1993) (claim that indictment fails to state offense challenges jurisdiction of convicting court and is not waived under 2255 by failure to raise issue on direct appeal); U.S. v. McKinney, 143 F.3d 325, 330 (7th Cir.) (proper “vehicle” for claim of ineffectiveness is 2255 motion,

not direct appeal, where trial record lacks reasons behind counsel’s tactical decisions), cert. denied, 119 S.Ct. 269 (1998); Vogt v. U.S., 88 F.3d 587, 590 (8th Cir. 1996) (claim that petitioner incompetent to stand trial not waived under 2255 by failure to raise issue on direct appeal); U.S. v. Cruz-Mendoza, 147 F.3d 1069, 1072 (9th Cir. 1998) (failure to raise ineffective assistance of counsel claim on direct appeal does not bar raising such claim in 2255 motion); U.S. v. Blaze, 143 F.3d 585, 593 (lOth Cir. 1998) (proper “vehicle” for claim of ineffectiveness is 2255 motion, not direct appeal, where trial record lacks reasons behind counsel’s tactical decisions); Harris v. U.S., 149 F.3d 1304, 1309 (llth Cir. 1998) (challenge to jurisdiction of trial court to impose enhanced sentence can not be procedurally defaulted).

A court is more likely to find that a petitioner has waived nonconstitutional claims than constitutional claims. See Brennan v. U.S., 867 F.2d 111, 120 (2d Cir. 1989) (nonconstitutional, nonjurisdictional claims generally foreclosed under 2255 when not raised on direct appeal); cf. U.S. v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989) (per curiam) (nonconstitutional FED. R. CRIM. P. 32(c)(3)(D) claim waived when not raised on direct appeal and could not be basis of subsequent 2255 motion); Anderson v. U.S., 25 F.3d 704, 706 (8th Cir. 1994) (nonconstitutional, nonjurisdictional restoration claim of right to possess firearm waived under 2255 when petitioner failed to raise on direct appeal and could not be excused by showing “cause and prejudice”).

Waiver of claim from failure to raise the issue on direct appeal applies equally to convictions entered pursuant to guilty pleas. See Matthews v. U.S., 114 F.3d 112, 113 (8th Cir. 1997) (defendant’s claims of ineffective assistance of counsel and trial court’s failure to advise are waived when not raised on direct appeal and defendant fails to show cause and prejudice), cert. denied, 118 S.Ct. 730 (1998).

Under certain treaties, prisoners convicted in other countries who voluntarily consent to transfer to U.S. prisons waive all rights to collateral attack in U.S. courts. See Herrmann v. Meese, 849 F.2d 101, 102-03 (3d Cir. 1988) (prisoner convicted in England could not bring habeas action to modify sentence in conformity with U.S. law when treaty provision permissive and transfer statute, which barred adaptation of foreign sentence, controlled); Kanasola v. Civiletti, 630 F.2d 472, 474 (6th Cir. 1980) (per curiam) (prisoner convicted in Canada waived right to habeas review by consenting to transfer to U.S. prison pursuant to treaty that reserved jurisdiction over collateral review to Canada). The right to file motions under 2255 may be expressly waived in some instances. See U.S. v. Wilkes, 20 F.3d 651, 653 (Sth Cir. 1994) (per curiam) (waiver of 2255 relief analogous to waiver of right to appeal, which may be waived in plea agreement); U.S. v. Winheim, 143 F.3d 1116, 1117 (8th Cir. 1998) (petition foreclosed because unconditional guilty plea waived any challenges not based on jurisdiction). 2904. 456 U.S. 152 (1982).

2905. Id. at 168, 170-71; see U.S. v. Tarascio, 15 F.3d 224, 225 (2d Cir. 1993) (cause and prejudice standard applied when petitioner alleges composition of grand jury that indicted him violated his constitutional rights); U.S. v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992) (cause and prejudice standard applied when petitioner makes colorable claim that prosecutor knowingly employed perjured testimony to secure conviction); U.S. v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994) (cause and prejudice standard applied when petitioner challenges unappealed guilty pleas); U.S. v. Guerra, 94 F.3d 989, 993 (Sth Cir. 1996) (cause and prejudice standard applied when petitioner alleges error in court advisement of maximum possible sentence); Ambriz v. U.S., 14 F.3d 331, 333 (7th Cir. 1994) (cause and prejudice standard applied when petitioner attempts to raise sentencing errors); Dalton v. U.S., 862 F.2d 1307, 1309 (8th Cir. 1988) (cause and prejudice standard applied when petitioner attempts to show, in light of subsequent decision, jury instruction misstated law); U.S. v. Talk, 158 F.3d 1064, 1067 (lOth Cir. 1998) (cause and prejudice standard applied when petitioner failed to raise on direct appeal his objection to standard of review employed to reject downward departures from sentencing guidelines); U.S. v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir. 1994) (cause and prejudice standard applied when petitioner raises challenge to improper jury instructions). But see Arango-Alvarez v. U.S., 134 F.3d 888, 891 (7th Cir. 1998) (barring from collateral review, regardless of cause and prejudice, all nonconstitutional errors which could have been raised on direct appeal). In Frady, the prisoner claimed that jury instructions at his trial unconstitutionally presumed malice, but the Court found no prejudice from the alleged error because of the overwhelming evidence of malice. 456 U.S. at 171-72; cf. CfC Peck v. U.S., 106 F.3d 450, 457 (2d Cir. 1997) (no prejudice shown when jury given incomplete instructions regarding essential element of offense because, subject to harmless error analysis, rational juror would nonetheless have found element beyond reasonable doubt); U.S. v. Logan, 135 F.3d 353, 355 (5th Cir. 1998) (although cause requirement was satisfied because premise for procedurally defaulted objection had yet to be established at time of earlier appeals, prejudice requirement was still not met since new definition of crime would not invalidate conviction); Fair v. U.S., 157 F.3d 427, 430 n.6, 432 (6th Cir. 1998) (same); Cobbett v. U.S., 43 F.3d 395, 396 (8th Cir. 1994) (no prejudice shown when counsel failed to inform defendant of appeal rights because other notice given); U.S. v. Moore, 921 F.2d 207, 210 (9th Cir. 1990) (no prejudice shown when judge in

robbery case failed to define “violence” because definition of word within jury’s experience); U.S. v. McDonald, ISO F.3d 1301 (lOth Cir. 1998) (no prejudice shown where evidence sufficient to support firearm conviction despite trial court’s erroneous instruction); U.S. v. Dale, 140 F.3d 1054, 1056 (D.C. Cir.) (per curiam) (prejudice standard requires showing that errors at trial were of “constitutional dimensions” (quoting Frady, 456 U.S. at 170)), petition for cert. filed, 67 USLW 3188 (1998). The Frady Court did not address the question of “cause.” 456 U.S. at 168. Compare Guerra, 94 F3d at 994 (cause shown when counsel rebuffed petitioner’s request to raise issue on direct appeal); Ratliff v. U.S., 999 F.2d 1023, 1026 (6th Cir. 1993) (same) and U.S. v. Wright, 43 F.3d 491, 497-98 (lOth Cir. 1994) (cause shown when coercive threat to prosecute wife existed at time of appeal) with U.S. v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1996) (no cause shown where petitioner failed to make direct appeal, despite defense counsel’s ignorance of existing legal authority, because petitioner bears risk of counsel error); Boyer v. U.S., 55 F.3d 296, 298-99 (7th Cir. 1995) (no cause shown where petitioner failed to raise on direct appeal existing discrepancy in sentencing regulations because claim not so novel to justify failure to raise); Kimes v. U.S., 939 F.2d 776, 778-79 (9th Cir. 1991) (no cause shown where petitioner failed to object at voir dire to allegedly biased juror because petitioner mentally competent and capable of recognizing the juror) and Jones v. U.S., 153 F.3d 1305, 1307-08 (llth Cir. 1998) (no cause shown even though petitioner unaware of constitutional deficiency, and appeal under prior precedent likely to have been futile). See Exhaustion and Procedural Bar and Second or Successive Petitions in HABEAS RELIEF FOR STATE PRISONERS in this Part for additional discussion of the cause and prejudice standard.

2906. See U.S. v. MacDonald, 966 F2d 854, 859 (4th Cir. 1992) (confining miscarriage of justice standard to colorable claim of factual innocence); U.S. v. Cervantes, 132 F.3d 1106, 1109 (Sth Cir. 1998) (construing miscarriage of justice standard as excluding sentencing error which was prohibited from direct appeal because of waiver provision of plea bargain); Dyer v. U.S., 23 F.3d 1421, 1423 (8th Cir. 1994) (confining fundamental miscarriage of justice to “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime”); U.S. v. Cox, 83 F.3d 336, 341 (lOth Cir. 1996) (confining fundamental miscarriage of justice to colorable showing of factual innocence); U.S. v. Dale, 140 F.3d 1054, 1057 (D.C. Cir.) (per curiam) (miscarriage of justice standard is higher threshold than prejudice standard (see supra note 2901)), petition for cert. filed, 67 USLW 3188 (1998). Compare Mills v. U.S., 36 F.3d 1052, 1056 (llth Cir. 1994) (per curiam) (claim that Clean Water Act unconstitutionally delegated authority, when petitioner alleged facts categorizing property as wetland not fully developed, cognizable under 2255 as fundamental miscarriage of justice) with Knight v. U.S., 37 F.3d 769, 773 (Ist Cir. 1994) (claim that sentence based on misapplication of Sentencing Guidelines, when petitioner alleged facts relating to sentencing not fully developed, not cognizable as fundamental miscarriage of justice) and Burke v. U.S., 152 F.3d 1329, 1331-32 (llth Cir. 1998) (claim that sentence contrary to new amendment to Sentencing Guidelines not cognizable as fundamental miscarriage of justice). See Exhaustion and Procedural Bar and Second or Successive Petitions in HABEAS RELIEF FOR STATE PRISONERS in this Part for additional discussion of the “fundamental miscarriage of justice” standard.

In Bousley v. United States, 118 S.Ct. 1604 (1998), petitioner pled guilty to “use” of a firearm (under 18 U.S.C. 924(c)(1)) in 1990 according to a definition of the crime provided by the district court. The definition was subsequently changed by the Supreme Court in Bailey v. United States, 516 U.S. 137, 144 (1995). Bousley, having appealed directly on other grounds prior to Bailey, sought habeas relief on the ground that his guilty plea had no factual basis since the Bailey definition did not apply to Bousley’s actions. The Court held that, although petitioner had procedurally defaulted by failing to raise the claim on direct appeal, and although his prior ignorance of the grounds did not meet the cause prong of the cause and prejudice test, petitioner could overcome the default by showing that he was actually innocent such that a reasonable juror would not convict him. Bousley, 118 S.Ct. at 1611-12. The Court elaborated this standard:

” ‘[a]ctual innocence’ means factual innocence’ means factual innocence, not mere legal insufficiency . . . [T]he Government is not limited to the existing record” and may “present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy . . . In cases where the Government has foregone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Id. See also U.S. v. Sorrells, 145 F.3d 744, 749 (Sth Cir. 1998) (applying Bousley standard requiring either cause and prejudice or demonstration of “actual innocence” to raise procedurally defaulted claim in a 2255 motion); U.S. v. Hellbusch, 147 F.3d 782, 784 (8th Cir. 1998) (same); Jones v. U.S., 153 F.3d 1305, 1308 (llth Cir. 1998) (where cause and prejudice standard not met, petitioner may overcome

procedural default by showing actual innocence, subject however to Government evidence beyond that presented at the plea colloquy and evidence of more serious charges foregone during plea bargaining).

2907. See U.S. v. Metzger, 3 F.3d 756, 757 (4th Cir. 1993) (when government failed to object, petitioner could raise new issue not presented on direct appeal); U.S. v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (when government failed to object, petitioner could raise waiver-of-indictment claim not presented on direct appeal); Buggs v. U.S., 153 F.3d 439, 444 (7th Cir. 1998) (when government failed to object, petitioner could raise other-wise defaulted insufficient evidence claim not previously raised on direct appeal); West v. U.S., 994 F.2d 510, 512 (8th Cir. 1993) (when government failed to object, petitioner could raise new issues without cause and prejudice showing); U.S. v. Hall, 843 F.2d 408, 410 (lOth Cir. 1988) (same); U.S. v. Beckham, 968 F.2d 47, 54 n.5 (D.C. Cir. 1992) (when government failed to object, petitioner could raise otherwise defaulted challenge to Sentencing Guidelines without cause and prejudice showing). But cf. Hines v. U.S., 971 F.2d 506, 509 (lOth Cir. 1992) (when government fails to object, court may, in interests of efficient administration of justice, raise cause and prejudice test, sua sponte, to bar claims newly raised on appeal). If the government fails to note procedural errors at trial or on direct appeal it may be estopped from raising those issues at a collateral proceeding. See U.S. v. Turner, 898 F.2d 705, 711 (9th Cir. 1990) (government may not challenge Sentencing Guidelines mistake in defendant’s favor when it failed to object at trial or on direct review).

2908. Some circuits have held that in certain circumstances a showing of cause and prejudice is not required when a claim of ineffective assistance of trial counsel is raised for the first time in a 2255 motion. See Smullen v. U.S., 94 F.3d 20, 21 (lst Cir. 1996) (ineffective assistance of counsel claim appropriate under 2255 without showing of cause and prejudice); Ciak v. U.S., 59 F.3d 296, 303-04 (2d Cir. 1995) (ineffective assistance of counsel claim appropriate in 2255 proceeding without showing of cause and prejudice where petitioner had same trial and appellate counsel or claim depends on matters outside of record on appeal); U.S. v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993) (ineffective assistance of counsel claim appropriate under 2255 without showing of cause and prejudice); U.S. v. Riascos, 76 F.3d 93, 94-95 (Sth Cir. 1996) (same); Castellanos v. U.S., 26 F.3d 717 (7th Cir. 1994) (ineffective assistance of counsel claim for failure to appeal conviction appropriate under 2255 without showing of cause and prejudice); Garrett v. U.S., 78 F.3d 1296, 1304 (8th Cir. 1996) (ineffective assistance of counsel claim appropriate under 2255 without showing of cause and prejudice). But see Prewitt v. U.S., 83 F.3d 812, 816 (7th Cir. 1996) (ineffective assistance of counsel claim appropriate under 2255 without showing of cause; petitioner must nonetheless make showing of prejudice).

Occasionally, additional considerations will favor allowing new issues to be raised on collateral review without a showing of cause and actual prejudice. See U.S. v. Dula, 989 F.2d 772, 775-76 (5th Cir. 1993) (permitting claim of violation of Brady v. Maryland, 373 U.S. 83 (1963), on collateral review without showing of cause or prejudice, where record on direct appeal inadequate to decide issue); Sanchez v. U.S., 50 F.3d 1448, 1453 (9th Cir. 1995) (permitting initial challenge of involuntary plea on collateral review without showing of cause or prejudice in light of potential Brady violation); U.S. v. Pollard, 959 F.2d 1011, 1018-19 (D.C. Cir. 1992) (permitting initial challenge to plea agreement on collateral review three years after sentencing without showing of cause or prejudice when earlier challenge would have prejudiced wife’s chances of gaining parole).

2909. See Murchu v. U.S., 926 F.2d 50, 55 (Ist Cir. 1991) (per curiam) (petitioner cannot raise entrapment claim in 2255 motion when claim fully litigated on direct appeal); Riascos-Prado v. U.S., 66 F.3d 30, 33-34 (2d Cir. 1995) (petitioner cannot raise claim of ineffective assistance of counsel in 2255 motion when issue resolved on direct appeal); U.S. v. Santiago, 993 F.2d 504, 506 (Sth Cir. 1993) (petitioner cannot challenge application of Sentencing Guidelines in 2255 motion when issue resolved on direct appeal); DuPont v. U.S., 76 F.3d 108, 110-11 (6th Cir. 1996) (same); U.S. v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986) (petitioner cannot raise double jeopardy claim in 2255 motion because claim disposed of on direct appeal); English v. U.S., 998 F.2d 609, 612-13 (8th Cir. 1993) (petitioner cannot challenge sufficiency of evidence in 2255 motion when issue resolved on direct appeal). 2910. Davis v. U.S., 417 U.S. 333, 342 (1974); see U.S. v. Benavente Gomez, 921 F.2d 378, 382 (Ist Cir. 1990) (allowing new trial based on new evidence (1) not known or available at time of trial, (2) not omitted through lack of diligence, (3) material and not merely cumulative or impeaching, and (4) likely to produce acquittal); Underwood v. U.S., 15 F.3d 16, 18 (2d Cir. 1993) (allowing exception to rule when intervening change in law has taken place or issues not raised on direct appeal due to ineffective

assistance of counsel); U.S. v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979) (allowing exception to rule when claim supported by new facts); English v. U.S., 998 F.2d 609, 611 (8th Cir. 1993) (allowing new trial when (I) new evidence discovered after trial, (2) late discovery not attributable to lack of diligence on part of petitioner, (3) evidence not merely cumulative or impeaching, (4) evidence is material, and (5) evidence likely to produce acquittal); U.S. v. Cox, 83 F.3d 336, 339-40 (lOth Cir. 1996) (allowing exception to rule when state sentences used to enhance petitioner’s federal sentence were subsequently invalidated).

2911. See Filing Deadlines in this Section.

2912. A successive motion based on new case law will be heard only if the new case states a new rule of law which either “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or “requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 307, 310 (1989) (plurality opinion); accord U.S. v. Salerno, 964 F.2d 172, 176-77 (2d Cir. 1992) (applying Teague standard to federal prisoner’s 2255 petition). The Teague non-retroactivity rule is discussed in greater detail in Cognizable Issues in HABEAS RELIEF FOR STATE PRISONERS in this Part. 2913. Section 2255 Rules, supra note 1, Rule 9(a). Compare U.S. v. Allard, 926 F.2d 1237, 1245-46 (lst Cir. 1991) (motion made 32 months after sentencing not dismissed because at time of plea proceeding movant did not understand breadth of charge against him) with Oliver v. U.S., 961 F.2d 1339, 1342 (7th Cir. 1992) (motion made 17 years after sentencing dismissed because government prejudiced by unexcused delay). A movant must be afforded the opportunity to explain why the delay should be excused. See Rizzo v. U.S., 821 F.2d 1271, 1273 (7th Cir. 1987) (motion filed 17 years after sentencing improperly dismissed when petitioner denied opportunity to explain delay and government showed no prejudice). A court must give a movant notice if it intends to look outside the record to determine whether the government was prejudiced by the movant’s delay. See U.S. v. Gutierrez, 839 F.2d 648, 650-52 (lOth Cir. 1988) (per curiam) (government’s motion for summary dismissal including letters and affidavits treated as motion for summary judgment requiring notice to petitioner).

It is unclear whether a delay could be deemed prejudicial if the 2255 motion is filed within the new one-year statute of limitations. See Filing Deadlines in this section for a detailed discussion of the new statutory time limitations.

2914. Corrao v. U.S., 152 F.3d 188, 190-91 (2d Cir. 1998) (upon receiving successive 2255 petition, district court should transfer it to court of appeals to perform “gatekeeping function” (quoting Galtieri v. U.S., 128 F.3d 33, 35 (2d Cir. 1997))).

2915. 28 U.S.C.A. 2255 (West Supp. 1997); see Liriano v. U.S., 95 F.3d 119, 122 (2d Cir. 1996) (per curiam) (denying certification for second 2255 motion when petitioner erroneously contended Antiterrorism Act constituted “new rule of constitutional law”); U.S. v. Rich, 141 F.3d 550, 553 (5th Cir. 1998) (construing a motion to reconsider previously denied 2255 motion as a successive 2255 motion, thus triggering certification requirement); U.S. v. Gallegos, 142 F.3d 1211, 1212 (lOth Cir. 1998) (denying motion seeking authorization for successive 2255 motion where claim of inadequacy of grand jury did not rely on newly discovered evidence by which no reasonable juror could find guilt, and no new, retroactive constitutional rules presented).

The 2255 amendments resulting from the Antiterrorism Act codify and augment the rule of Sanders v. U.S., 373 U.S. 1 (1963), in which the Court held that a successive habeas petition or 2255 motion may be dismissed if (1) the same ground presented in the subsequent petition was determined adversely to the petitioner on the prior petition, (2) the prior determination was on the merits, and (3) “the ends of justice” would not be served by reconsideration of the claim. Id. at IS-16; see Williams v. U.S., 731 F.2d

138, 141-42 (2d Cir. 1984) (successive habeas petition properly denied because new factual premise for same legal grounds did not meet Sanders test; ends of justice not served by reaching merits when “new” facts deliberately withheld previously); Bennett v. U.S., 119 F.3d 468, 469 (7th Cir. 1997) (successive petition properly denied because “new” evidence could not prima facie support an insanity defense by clear and convincing standard). Cf. Carter v. U.S., 150 F.3d 202, 206 (2d Cir. 1998) (despite newly presented grounds, authorization of second 2255 motion denied because first 2255 motion was decided on merits).

A 2255 motion may be allowed although petitioner has filed previous 2241 motions. See Chambers v. U.S., 106 F.3d 472, 474 (2d Cir. 1997) (petitioner’s third post-conviction motion not held as successive when previous two motions were construed as 2241 motions).

For a petitioner who is resentenced after a successful 2255 motion, if a later 2255 motion “challenges only the aspects of the sentence that were amended by the new judgment,” it may not be regarded as a subsequent motion, thus eliminating the need for certification by the appeals court panel. Esposito v. U.S., 135 F.3d 111, 111 (2d Cir. 1997) (per curiam); but cf. Pratt v. U.S., 129 F.3d 54, 62 (lst Cir. 1997) (where new judgment following successful 2255 motion was identical to supplanted judgment, first 2255 challenge to new judgment was held to be second 2255 motion and thus subject to requirement of certification by court of appeals), cert. denied, 118 S.Ct. 1807 (1998). The dismissal of successive petitions is discussed in greater detail in Second or Successive Petitions in HABEAS RELIEF FOR STATE PRISONERS in this Part.

2916. Section 2255 Rules, supra note 1, Rule 9(b); see U.S. v. Leiby, 820 F.2d 70, 73-74 (3d Cir. 1987) (successive motion properly denied when raised same issues as prior motion and first motion denied on merits); U.S. v. Oliver, 865 F.2d 600, 604 (4th Cir. 1989) (successive motion properly denied when did not allege “new or different grounds” from prior motion denied on merits); Bennett v. U.S., 119 F.3d 470, 471 (7th Cir. 1997) (successive motion properly denied when repeated claim raised in prior application for leave to file 2255 motion that was denied on merits); Peltier v. Henman, 997 F.2d 461, 472 (8th Cir. 1993) (successive motion properly dismissed when raised same issues as first motion, denied on merits); Humphrey v. U.S., 766 F.2d 1522, 1524-25 (llth Cir. 1985) (per curiam) (successive claims in 2255 motion dismissed because denied on merits in previous motion). It is unclear whether a district judge could dismiss a petition on these grounds considering that the petition had previously been certified by a three-judge panel to contain either newly discovered evidence or a new rule of constitutional law. 2917. Section 2255 Rules, supra note 1, Rule 9(b); Sanders, 373 U.S. at 17-18; see Pratt v. U.S., 129 F.3d 54, 62 (lst Cir. 1997) (successive motion constituted abuse of writ when petitioner “had both the incentive and the ability to raise a particular claim in his first petition for post-conviction relief, but declined to assert it . . .”), cert. denied, 118 S.Ct. 1807 (1998); Corrao v. U.S., 152 F.3d 188, 190 (2d Cir. 1998) (petitioner’s motion constituted abuse of writ when claim of ineffective counsel at sentencing was clearly assertable in prior 2255 motion); Haley v. U.S., 78 F.3d 282, 284-85 (7th Cir. 1996) (petitioner’s motion constituted abuse of writ when no cause shown for failure to raise claim in first petition); Briggs v. U.S., 48 F.3d 288, 289 (8th Cir. 1995) (per curiam) (petitioner’s motion constituted abuse of writ when no cause shown for failure to raise claim in prior proceeding); U.S. v. Richards, 5 F.3d 1369, 1370 (lOth Cir. 1993) (petitioner’s motion constituted abuse of writ where petitioner unable to show cause and prejudice or fundamental miscarriage of justice by failure to entertain claim). At least one circuit has required that petitioners have an opportunity to respond to potential dismissal for abuse of the writ. See U.S. v. Cullum, 47 F.3d 763, 764 (5th Cir. 1995) (requiring notice and 10 day response period before dismissing 2255 motion for abuse of writ). It is unclear whether a district judge could dismiss a petition on this ground considering that the petition has previously been certified by a three-judge panel to contain either newly discovered evidence or a new rule of constitutional law.

2918. Section 2255 Rules, supra note 1, Rules 2(b), 3(a). No filing fee is required for 2255 motions. Section 2255 Rules, supra note 1, Rule 3 advisory committee’s note. Indigent defendants should file an in

forma pauperis affidavit with the motion because “this is a convenient way of getting this into the official record so that the judge may appoint counsel, order the government to pay witness fees, allow docketing of an appeal, and grant any other rights to which an indigent is entitled ….” Id. A model in forma pauperis affidavit is appended to the 2255 Rules, requiring a declaration of poverty and a statement by a prison official declaring the amount of funds in the prisoner’s account. 2919. Section 2255 Rules, supra note 1, Rule 3(b).

2920. Section 2255 Rules, supra note 1, Rule 4(a). If different judges presided at trial and sentencing, the motion must be examined by the judge who was in charge of the proceedings being attacked. Id. If the specified judge is unavailable, however, the motion may be assigned to another judge for that district. Id.; see Gano v. U.S., 705 F.2d 1136, 1137 (9th Cir. 1983) (district judge’s appointment to circuit court justified finding of unavailability and assignment of motion to another judge). When the allegations raised in the 2255 motion involve improper behavior by the trial judge, the motion may be examined by a different judge. See Murchu v. U.S., 926 F.2d 50, 57 (Ist Cir. 1991) (per curiam) (allegation that trial judge biased against petitioner and attempted to coerce guilty plea may justify assignment of motion to another judge). The petitioner may request disqualification of the chosen judge by filing an affidavit with the court alleging that the judge will be biased. Section 2255 Rules, supra note 1, Rule 4 advisory committee’s note.

2921. Section 2255 Rules, supra note 1, Rule 4(b); accord 28 U.S.C. 2255 (1994) (unless motion and record conclusively show that prisoner not entitled to relief, court must proceed with disposition of motion). Compare U.S. v. LaBonte, 70 F.3d 1396, 1412-14 (lst Cir. 1995) (summary dismissal proper when 2255 motion deemed defective because factual allegations not under oath, thus petitioner not entitled to relief), rev’d on other grounds, 520 U.S. 751 (1997); Politte v. U.S., 852 F.2d 924, 926, 931 (7th Cir. 1988) (summary dismissal proper when record reflected voluntary guilty plea and 2255 motion presented no new allegations) and Standing Bear v. U.S., 68 F.3d 271, 272 (8th Cir. 1995) (per curiam) (summary dismissal proper when record did not support petitioner’s claim of lack of jurisdiction) with Murchu v. U.S., 926 F.2d 50, 57 (lst Cir. 1991) (per curiam) (summary dismissal improper when petitioner’s allegations of judicial coercion to enter guilty plea, if true, would entitle petitioner to relief) and U.S. v. Burrows, 872 F.2d 915, 918-19 (9th Cir. 1989) (per curiam) (summary dismissal improper when petitioner presented evidence that attorney failed to investigate petitioner’s mental state and petitioner previously diagnosed as schizophrenic).

The preferred practice for summary dismissal of a habeas petition is for the trial court to enumerate the issues raised and specify the legal grounds for summarily dismissing them. Compare U.S. v. Counts, 691 F.2d 348, 349 (7th Cir. 1982) (per curiam) (approving summary dismissal of appellant’s double jeopardy claim but cautioning that district court should provide reasons for such dismissals in future) with U.S. v. Marr, 856 F.2d 1471, 1472-73 (lOth Cir. 1988) (summary dismissal remanded for enumeration of issues raised when district judge stated only that petitioner’s motion denied). Under certain circumstances, a court may impose sanctions under FED. R. CRIM. P. Il for frivolous 2255 filings. See U.S. v. Quin, 836 F.2d 654, 657 (lst Cir. 1988) (Rule 11 sanction imposed when petitioner sought only to prevent deportation by filing 2255 motion). 2922. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (pro se complaint held to less stringent standards than formal papers drafted by lawyers); U.S. v. Mosquera, 845 F.2d 1122, 1124-25 (lst Cir. 1988) (per curiam) (pro se allegations not unduly conclusory in light of petitioner’s pro se status; district court’s denial of 2255 motion vacated and remanded for further proceedings); U.S. v. Riascos, 76 F.3d 93, 94-95 (5th Cir. 1996) (per curiam) (pro se “traverse” liberally construed as motion to amend

2255 motion); Ratliff v. U.S., 999 F.2d 1023, 1026 (6th Cir. 1993) (pro se 2255 motion read liberally to satisfy cause and prejudice standard); U.S. v. Robinson, 64 F.3d 403, 405 (8th Cir. 1995) (pro se notice of appeal of conviction and sentence liberally construed to include appeal of denial of 2255 motion); U.S. v. Killion, 7 F.3d 927, 928 (lOth Cir. 1993) (pro se letter to district court claiming petitioner denied federal jail credit time construed as 2255 motion); Tannenbaum v. U.S., 148 F.3d 1262, 1263 (llth Cir. 1998) (per curiam) (pro se pleadings, including 2255 motions, are to be liberally construed); cf. U.S. v. Ramirez, 954 F.2d 1035, 1038 (5th Cir. 1992) (per curiam) (court refused to liberally construe represented party’s untimely filed FED. R. CRIM. P. 35 motion as 2255 motion, but allowed amended filing). In appropriate circumstances, a court will construe other types of pleadings as 2255 motions. Compare U.S. v. Zuleta-Molina, 840 F.2d 157, 158 (lst Cir. 1988) (per curiam) (pro se FED. R. CRIM. P.

35 motion to correct illegal sentence, filed after deadline, construed as 2255 motion); U.S. v. Ammar, 919 F.2d 13, 14-IS (3d Cir. 1990) ( 2241 petition construed as 2255 motion); U.S. v. Hunt, 940 F.2d 130, 131 (5th Cir. 1991) (pro se appeal from denial of FED. R. CRIM. P. 35 motion to correct illegal sentence construed as 2255 motion to vacate sentence); U.S. v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996) (pro se appeal from denial of petition for coram nobis construed as 2255 motion) and U.S. v. Rourke, 984 F.2d 1063, 1067 (lOth Cir. 1992) (pro se FED. R. CRIM. P. 35(a) motion liberally construed as

2255 motion) with U.S. v. Mittelsteadt, 790 F.2d 39, 40-41 (7th Cir. 1986) (per curiam) (pro se motion for specific finding of fact regarding amount of loss caused by fraudulent acts not construed as 2255 motion because not attacking validity or seeking reduction of sentence) and U.S. v. Kindle, 88 F.3d 535, 536 (8th Cir. 1996) (per curiam) (pro se coram nobis petition not construed as successive 2255 motion because no allegations of cause and prejudice or factual innocence needed to justify apparent abuse of the writ).

2923. Section 2255 Rules, supra note 1, Rule 4(b). If the judge orders the filing of an answer, she must set a time limit therefor. Id.; see also Section 2255 Rules, supra note 1, Rule 5(a) (describing required content of answer).

2924. Section 2255 Rules, supra note 1, Rule 7(a).

2925. Section 2255 Rules, supra note 1, Rule 8(a); see Sanders v. U.S., 373 U.S. 1, 19-20 (1963) (petitioner entitled to hearing on claim that he was under influence of drugs when he waived indictment and pled guilty to charges in information, even though same judge presided over waiver). Compare U.S. v. Rodriguez, 929 F.2d 747, 752 (lst Cir. 1991) (per curiam) (petitioner entitled to evidentiary hearing on allegation that counsel, due to conflict of interest, failed to inform petitioner of government’s plea offer); Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3d Cir. 1994) (petitioner entitled to evidentiary hearing on ineffective assistance of counsel claim where facts viewed in light most favorable to petitioner would entitle him to relief); U.S. v. Magini, 973 F.2d 261, 264-65 (4th Cir. 1992) (petitioner entitled to evidentiary hearing when motion presented colorable claim and material facts beyond the record are in dispute); Nichols v. U.S., 75 F.3d 1137, 1145-46 (7th Cir. 1996) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel when record inconclusive on issue); Biami v. U.S., 144 F.3d 1096, 1097 (7th Cir. 1998) (petitioner entitled to evidentiary hearing to determine type of cocaine he possessed where the drug’s form affected the sentence and the record was inconclusive); Shaw v. U.S., 24 F.3d 1040, 1043 (8th Cir. 1994) (petitioner entitled to evidentiary hearing on claim of ineffective assistance of counsel unless claim inadequate on its face or if records conclusively refute factual assertions of claim); U.S. v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (evidentiary hearing required unless 2255 motion, files, and trial record “conclusively show” petitioner entitled no relief) and U.S. v. Estrada, 849 F.2d 1304, 1306-07 (lOth Cir. 1988) (petitioner entitled to evidentiary hearing on claim of involuntary guilty plea when record inconclusive on issue) with David v. U.S., 134 F.3d 470, 478 (Ist Cir. 1998) (no evidentiary hearing warranted where allegations are “so evanescent or bereft of detail that they cannot reasonably be investigated”); U.S. v. Friedland, 83 F.3d 1531, 1542-43 (3d Cir. 1996) (no evidentiary hearing required when undisputed facts showed petitioner not entitled to reduction of sentence); U.S. v. Cervantes, 132 F.3d 1106, 1111 (Sth Cir. 1998) (no evidentiary hearing required where record shows petitioner assented to plea bargain and indicated her understanding several times); Mathews v. U.S., 11 F.3d 583, 584-85 (6th Cir. 1993) (no evidentiary hearing required when 2255 petition raised no factual disputes); Prewitt v. U.S., 83 F.3d 812, 819-20 (7th Cir. 1996) (no evidentiary hearing required on claim of intentional, pre-indictment delay when petitioner offered only conclusory allegations without supporting facts); Bradshaw v. U.S., 153 F.3d 704, 708 (8th Cir. 1998) (no evidentiary hearing required where petitioner has not claimed that new evidence nor factual disputes exist); U.S. v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996) (no evidentiary hearing required when petitioner could not allege specific facts which would entitle relief), cert. denied, 117 S.Ct. 2444 (1997); U.S. v. Simmonds, 111 F.3d 737, 746 (lOth Cir. 1997) (no evidentiary hearing required when record conclusively shows petitioner not entitled to relief); Murray v. U.S., 145 F.3d 1249, 1254 (llth Cir. 1998) (per curiam) (no evidentiary hearing required where petitioner chose not to testify or present evidence supporting his claim) and U.S. v. Morrison, 98 F.3d 619, 624-26 (D.C. Cir.) (no evidentiary hearing required when ineffective counsel claim is speculative and does not involve information outside record or judge’s memory), cert. denied, 117 S. Ct. 1279 (1997).

The standard of review for denials of 2255 evidentiary hearings is abuse of discretion See, e.g., U.S. v. Estrada, 849 F.2d 1304, 1305 (lOth Cir. 1988) (court performs two-step analysis under 2255: (1)

whether defendant would be entitled to relief if charges proved, and (2) whether district court abused discretion in denying evidentiary hearing). A finding of abuse of discretion is not common. But see, e.g., Frazer v. U.S., 18 F.3d 778, 781-84 (9th Cir. 1994) (abuse of discretion to deny hearing on allegation that right to counsel at trial was violated because petitioner’s factual allegations were outside of record, and if proven, would entitle petitioner to new trial with new counsel); U.S. v. Barboa, 777 F.2d 1420, 1422-23 (lOth Cir. 1985) (abuse of discretion to deny evidentiary hearing when petitioner alleged in sworn pleading, uncontroverted by trial record, that co-conspirator was government agent, although allegation not supported by facts or information, because assertion went to “heart of the crime”).

If an evidentiary hearing is conducted by a magistrate judge, the petitioner is entitled to a de novo review by the district judge of findings to which the petitioner objects. Section 2255 Rules, supra note 1, Rule 8(b)(4) judge “shall make a de novo determination of those portions of the [magistrate judge’s] report . . . to which objection is made”); see also Nabors v. U.S., 929 F.2d 354, 355 (8th Cir. 1990) (per curiam) (remanded for de novo review when no indication that district judge reviewed tape or transcript of evidentiary hearing conducted by magistrate judge).

2926. Compare U.S. v. McGill, 11 F.3d 223, 225 (lst Cir. 1993) (where 2255 motion presented to judge who presided at trial, judge may use knowledge and make findings based on previous proceeding without additional hearing); Patel v. U.S., 19 F.3d 1231, 1235 (7th Cir. 1994) (no evidentiary hearing required when judge familiar with case from inception); Watts v. U.S., 841 F.2d 275, 277-78 (9th Cir. 1988) (per curiam) judges may supplement record with their own notes and recollections of plea hearing when ruling on 2255 motion) and U.S. v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) (“only where the 2255 motion raises ‘detailed and specific’ factual allegations whose resolution requires information outside of the record or the judge’s `personal knowledge or recollection’ must a hearing be held”) (quoting Machibroda v. U.S., 368 U.S. 487, 495 (1962)) with U.S. v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991) (“Where, as here, the allegations in the 2255 motion are not negated by the record, the district court must hold an evidentiary hearing to `decide all of these unresolved factual allegations which, if true, might support [her] constitutional claim ….’ “) (quoting Friedman v. U.S., 588 F.2d 1010, 1012 (5th Cir. 1979)).

2927. See U.S. v. Hayman, 342 U.S. 205, 219-20 (1952) ( 2255 required notice and opportunity to appear when factual dispute over defendant’s knowledge and consent to counsel’s representation of prosecution witness).

2928. See U.S. v. Vasquez, 7 F3d 81, 83 (5th Cir. 1993) (no right to appointed counsel in 2255 proceeding unless evidentiary hearing required); Oliver v. U.S., 961 F.2d 1339, 1343 (7th Cir. 1992) (no Sixth Amendment right to counsel under 2255 because civil, rather than criminal, proceeding); U.S. v. Jordan, 915 F.2d 622, 628 (llth Cir. 1990) ( 2255 proceeding akin to independent civil suit); U.S. v. Barnes, 662 F.2d 777, 780 (D.C. Cir. 1980) (same).

2929. 21 U.S.C. 848(q)(4)(B) (1994). This right to appointed counsel attaches prior to the filing of a formal, legally sufficient habeas corpus petition. See McFarland v. Scott, 114 S. Ct. 2568 (1994) (right to counseled habeas corpus proceeding attaches when motion requesting habeas counsel filed); Weeks v. Jones, 100 F.3d 124, 127 (llth Cir. 1996) (per curiam) (merits of habeas petition are irrelevant to statutory right to appointment of counsel).

2930. Section 2255 Rules, supra note 1, Rule 8(c); see U.S. v. Vasquez, 7 F.3d 81, 84 (5th Cir. 1993) (indigent movant entitled to appointed counsel for evidentiary hearing on 2255 motion); Rauter v. U.S., 871 F.2d 693, 695 (7th Cir. 1989) (same); U.S. v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995) (same).

2931. Section 2255 Rules, supra note 1, Rule 6(al

2932. 28 U S.C.A. 2255 (West Supp. 1997) (“Appointment of counsel under [section 2255] shall be governed by section 3006A of title 18.”); 18 U.S.C. 3006A(a)(2)(B) (1994) (court may furnish counsel

when interests of justice require and petitioner financially unable to afford counsel); Section 2255 Rules, supra note 1, Rule 8(c) (court may furnish counsel, pursuant to statutory authority, “at any stage of the proceeding if the interest of justice so requires”); see U.S. v. Mala, 7 F.3d 1058, 1064 (Ist Cir. 1993) (counsel appointed for petitioner if 2255 relief sought); Felix v. Virgin Islands, 702 F.2d 54, 56 (3d Cir. 1983) (per curiam) (counsel appointed to assist in filing amended habeas corpus petition when pro se petition alleged that defendant mentally incompetent to stand trial); Oliver v. U.S., 961 F.2d 1339, 1343 (7th Cir. 1992) (district court has discretion to appoint legal counsel for indigent 2255 petitioners). The court may also appoint counsel to enable a petitioner to appeal an unsuccessful 2255 motion. See Savage v. U.S., 547 F.2d 212, 214 (3d Cir. 1976) (counsel appointed, pursuant to 18 U.S.C. 3006A(g), for indigent petitioner appealing unsuccessful 2255 motion).

2933. 28 U.S.C. 753(f) (1994); see U.S. v. Shaid, 916 F.2d 984, 989 (Sth Cir. 1990) (denial of transcript justified when motion revealed that petitioner had access to portions of transcript necessary for 2255 motion); Chapman v. U.S., 55 F.3d 390, 390-91 (8th Cir. 1995) (per curiam) (denial of transcript justified prior to filing of 2255 challenge to sentence). These requirements do not violate the Constitution. See U.S. v. MacCollom, 426 U.S. 317, 323-26 (1976) (court’s failure to grant indigent federal prisoner unconditional right to obtain trial transcript for 2255 proceeding not violation of due process or equal protection).

2934. In Hansen v. U.S., 956 F.2d 245 (llth Cir. 1992), a petitioner seeking to prove judicial bias in sentencing was allowed access to the court reporter’s original tape recording of the proceedings. Id. at 248. Such access was deemed necessary because the petitioner alleged that the written transcript was censored to omit certain comments made by the judge that demonstrated his bias against petitioner. Id. at 247-48. The court specifically noted, however, that its ruling was limited to access only and any copying of the audio tape would be at petitioner’s expense. Id.

2935. 28 U.S.C. 2255 (1994); see U.S. v. Martin, 116 F.3d 702, 704 (3d Cir.) (per curiam) (district court has authority to enhance sentencing on unchallenged convictions after vacating related conviction in a 2255 proceeding), cert. denied, 118 S. Ct. 351 (1997); U.S. v. Jones, 114 F.3d 896, 898 (9th Cir. 1997) (district court has authority to reimpose fine in a 2255 proceeding after considering events that followed imposition of original fine); U.S. v. Rogers, 984 F.2d 314, 318-19 (9th Cir. 1993) (district court may correct a Rule 11 violation by either resentencing prisoner or allowing her to withdraw guilty plea); U.S. v. Pearce, 146 F.3d 771, 775 (lOth Cir. 1998) (petitioner’s conviction and sentence may be vacated without resentencing for remaining conviction at district court’s discretion). 2936. 28 U.S.C.A. 2253(c)(1) (West Supp. 1997). The certificate of appealability requirement, with respect to non-capital cases, applies only to cases filed after the Antiterrorism Act’s effective date of April 24, 1996. See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997) (amendments to the habeas corpus statute do not apply to state inmate’s pending non-capital case); U.S. v. Skandier, 125 F.3d 178, 180 (3d Cir. 1997) (explicitly applying the Lindh exemption to 2255 petitions); U.S. v. Carter, 117 F.3d 262, 264 (Sth Cir. 1997) (per curiam) (same). The Antiterrorism Act also amended habeas corpus procedure in capital cases. 28 U.S.C.A. 2261-66 (West Supp. 1997).

The circuit courts are divided as to whether a district court must issue a certificate of appealability or whether that function is reserved solely for the appellate courts. Compare Lozada v. U.S., 107 F.3d 1011, 1015 (2d Cir. 1997) ( 2255 appellant should first apply to district court for a cerificate); U.S. v. Eyer, 113 F.3d 470, 472-74 (3d Cir. 1997) (same); U.S. v. Youngblood, 116 F.3d 1113, 1115 (Sth Cir. 1997) (per curiam) (same); U.S. v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (per curiam) (same) and Hunter v. U.S., 101 F.3d 1565, 1573-77 (llth Cir. 1996) (en banc) (same), cert. denied, 117 S.Ct. 1695 (1997) with In re Sims, 111 F.3d 45, 47-8 (6th Cir. 1997) (per curiam) (district court should transfer certificate of appealability request to appeals court) and U.S. v. Simmonds, 111 F.3d 737, 740 (lOth Cir. 1997) (circuit court generally required to rule on certificate and should do so before requiring government to brief

merits of petition). One circuit appears not to have foreclosed the option of seeking the certificate of appealability at either the district or circuit level. Williams v. U.S., 150 F.3d 639, 640-41 (7th Cir. 1998) (petitioner not required to first seek certificate of appealability from district court, but also not prohibited from doing so).

The government may appeal if the prisoner’s 2255 motion is granted. See U.S. v. Pettiford, 101 F.3d 199, 200 (Ist Cir. 1996) (government appeal of 2255 order granting petitioner reduction in sentence); U.S. v. Bokun, 73 F.3d 8, 9 (2d Cir. 1995) (same); U.S. v. Jack, 774 F.2d 605, 605 (3d Cir. 1985) (same); Lowe v. U.S., 923 F.2d 528, 529 (7th Cir. 1991) (same); U.S. v. Pearce, 146 F.3d 771, 774 (lOth Cir. 1998) (holding that the government has right to appeal final order in 2255 motion without obtaining certificate of appealability). A judge cannot employ 2255 to provide the government with a right to appeal that it would not otherwise have had. U.S. v. Hundley, 858 F.2d 58, 61, 66 (2d Cir. 1988). In Hundley, the petitioner pleaded guilty and received an “enhanced” sentence due to his previous convictions. Id. at 60. The trial judge thought, however, that one of Hundley’s previous convictions was obtained in violation of his constitutional rights, which, if true, would no longer empower the judge to “enhance” the petitioner’s sentence. Id. The judge, rather than ruling directly to disallow use of the previous conviction, gave petitioner an enhanced sentence with the proviso that the judge would immediately consider and grant a 2255 motion on the grounds that the previous conviction was unconstitutional. Id. This enabled the government to appeal, which it would not have been able to do had the judge ruled initially to bar the use of the previous conviction. Id. at 61. The court of appeals dismissed the appeal as improper, calling the resultant 2255 motion a “collusive suit, arranged between the sentencing judge and the Government over the defendant’s objection, to create a substitute for an appeal that the Government could not otherwise take.” Id. at 61, 66 (footnote omitted). There is no right to appeal a final order determining the validity of a warrant to remove a person charged with a federal criminal offense to another district for trial or incarceration. 28 U.S.C.A. 2253(b) (West Supp. 1997).

2937. 28 U.S.C.A. 2253(c)(2)-(3) (West Supp. 1997).

2938. See 28 U.S.C.A. 2253(c)(3) (West Supp. 1997) (circuit justice or judge must indicate which specific issue or issues satisfy the “substantial showing” standard). Section 2253(c)(3) most likely means that the circuit court may consider only those claims indicated in the certificate of appealability. See Murray v. U.S., 145 F.3d 1249, 1250 (llth Cir. 1998) (per curiam) (review on appeal restricted to issues specified in certificate of appealability).

2939. See, e.g., U.S. v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995). A finding that the district court’s factual findings are clearly erroneous is not common. But see, e.g., U.S. v. Arellanes, 767 F.2d 1353, 1357 (9th Cir. 1985) (magistrate judge’s findings that no factual issues in dispute clearly erroneous when manifest contradictions existed between statements at plea hearing and written embodiment; remanded for evidentiary hearing). 2940. Hohn v. U.S., 524 U.S. 236 (1998).

2941. FED. R. APP. P. 4(a)(1); see U.S. v. Garcia-Machado, 845 F.2d 492, 493 (5th Cir. 1988) (per curiam) (appeal of denial of 2255 motion dismissed because not filed within 60 days of judgment, pursuant to FED. R. APP. P. 4(a)(1)); Hope v. U.S., 43 F.3d 1140, 1142 (7th Cir. 1994) (same). The time for filing an appeal of a 2255 motion begins to toll from the date of the order denying or granting relief. See Williams v. U.S., 984 F.2d 28, 29-30 (2d Cir. 1993) (order denying relief on 2255 motion is not subject to FED. R. Clv. R. CIv. P. 58, which requires that a clerk shall enter judgment on court decision; court need not enter separate judgment).

2942. FED. R. APP. 4(a)(5). See Sanders v. U.S., 113 F.3d 184, 187 (llth Cir. 1997) (per curiam) (dismissal vacated and remanded when prisoner contended that he did not receive court order denying (sec)2255 relief until after appeals period had expired).

Copyright Georgetown University Law Center May 1999

Provided by ProQuest Information and Learning Company. All rights Reserved