|from Hogue's article: "... The Court of Criminal Appeals reversed his conviction after it was discovered the Texas Rangers instructed witnesses to commit perjury. ..."|
A Review of the Anti-Terrorism and Effective Death
Penalty Act of 1996
Jerry Lee Hogue #660
I was asked by a Board Member of the Lamp of Hope to write this article
explaining the anti-terrorism legislation that changed death row appeals
known as the Anti-Terrorism and Effective Death Penalty Act of 1996.
only way I believe to attempt to comprehend what Congress did in drafting
this piece of legislation is to compare it with the OLD LAW.
For the first
time in the history of this country, Congress has passed and imposed a
statute of limitations for all habeas proceedings. This NEW LAW mostly
affects death row appeals because their life hangs in the balance of the
On April 19, 1996, the Alfred P. Murrah Federal Building in Oklahoma
City was blown up and 168 people were killed in the blast. The surviving
victims and their families cried out and Congress heard them.
Clinton promised them on national television that the perpetrators would
be hunted down and punished. President Clinton on April 24, 1995, signed
into law the anti-terrorism legislation.
The NEW LAW applies to all habeas
appeals for capital cases. This FEDERAL LAW, in short, is a death warrant
for most prisoners on death row throughout the United States without regards
to the constitutional violations that may have resulted in an innocent
person being wrongfully convicted.
The following is a breakdown on each
provision of the NEW FEDERAL STATUTE governing capital appeals with the
On April 24, 1996, the Antiterrorism and Effective Death Penalty
Act of 1996, was enacted, and its general provisions regarding the standard
of federal habeas review immediately was applicable to all capital cases
pending in federal courts. Moore v. Johnson, 101 F. 3d 1069 (5th Cir. 1996);
Drinkard v. Johnson, 97 F. 3d 751 (5th Cir. 1996).
NEW FEDERAL LAW STANDARD OF REVIEW
Congress abandoned the de novo standard
of review and engrafted a standard of review for questions of law.
the federal judge that he may not grant relief on any claim adjudicated
on the merits in state court unless the adjudication. . . [This] 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
Relief may be granted if the state court's judgment is based upon
an unreasonable determination of the facts in light of the record evidence.
An application of law to facts is unreasonable only when it can be said
that reasonable jurists considering the question would be of one view that
the state court's ruling was incorrect.
Even then, the federal court may
act only if the state court's decision constitutes an unreasonable interpretation
of constitutional principles that are clearly established.
Since a state
court is unlikely to defy a general principle of constitutional law that
the Supreme Court has clearly established, this review will provide a few
opportunities for a federal judge to examine and determine constitutional
If the prisoner fails to develop all the facts in state court supporting
the claim, the prisoner will not be allowed to develop any new facts in
Federal Courts may no longer re-examine the fact-findings
of the state court based upon the exceptions to be presumption of correctness
found in Summer v. Mata, 455 U.S. 591,597 (1982).
A federal court cannot
award relief on the basis of any claim that was previously decided against
the prisoner by a state court even though the federal court concludes
that the state court decision was erroneous and that the prisoner's federal
constitutional rights have been violated.
OLD FEDERAL LAW:
STANDARD OF REVIEW
The old federal statute required
the federal district judge to re-examine the state court's finding of fact
and conclusions of law under a standard called de novo review.
of review required the Federal Court to review each claim independently
of the state court's findings to determine whether there were any constitutional
The Federal Judge had the power to grant relief even if he
had doubts about the prejudice the prisoner may have suffered.
OLD FEDERAL STATUTE, there are eight (8) circumstances under which a state
court's fact-findings were not to be considered in reviewing a constitutional
Those exceptions are listed below under the OLD FEDERAL STATUTE
for deciding to grant an Evidentiary Hearing.
NEW FEDERAL STATUTE:
The NEW FEDERAL STATUTE places
sharp restrictions on obtaining an evidentiary hearing in Federal Court.
If the prisoner fails to develop the factual basis of a claim in state
court, no evidentiary hearing will be granted unless the prisoner can show
the claim(s) rely upon new, retroactive law that could not have been earlier
presented and that the facts underlying the claim establish by clear and
convincing evidence that the prisoner would not be found guilty of the
offense of murder at trial.
OLD FEDERAL STATUTE:
The OLD FEDERAL STATUTE allowed
Federal Courts to hold an evidentiary hearing at the discretion of the
Federal District Court, if the prisoner could show that
(1) the merits
of the factual dispute were not resolved in the state court,
(2) the fact-finding
procedure employed by the state court was not adequate to afford a full
and fair hearing,
(3) the material facts were not adequately developed
at the state court,
(4) the state court lacked jurisdiction of the subject
matter or over the prisoner in the state court proceedings,
(5) the prisoner
was an indigent and the state court in deprivation of his constitutional
right, failed to appoint counsel to represent him in the state court proceedings,
(6) the prisoner did not received a full, fair, and adequate hearing in
the state court proceedings,
(7) the prisoner was otherwise denied due process
of law in the state court proceedings and/or
(8) the federal court, after
examining the record, concludes that the state court determination is not
fairly supported by the record. The Supreme Court's ruling in Townsend
v. Sain, 372 U.S.293 (1963) required federal courts to conduct evidentiary
hearings in all cases in which the state has failed to afford a prisoner
a full and fair hearing on proffered facts that if proved, would entitle
the Prisoner to relief.
The Supreme Court's decision in Townsend v.Sain,
is overruled by the NEW FEDERAL LAW.
NEW FEDERAL STATUTE:
SECOND OR SUCCESSIVE PETITIONS
A prisoner who has
already had one complete federal habeas proceeding (a decision from the
district court, a decision from the court of appeals, and a chance to seek
review on certiorari to the Supreme Court) cannot file a second petition
unless he gets "permission" from the court of appeals to do so.
In other words, the prisoner has to start by filing a "request for
permission to file" in the court of appeals and, if the three-judge
panel grants permission to file, then the prisoner files his petition in
the district court for it to consider the merits.
According to the NEW
FEDERAL STATUTE, if the court of appeals refuses permission for the prisoner
to file his second petition, that decision cannot be raised in a certiorari
petition to the Supreme Court.
OLD FEDERAL STATUTE:
SECOND OR SUCCESSIVE PETITIONS
A prisoner, under
the old law, was allowed to seek a second round of appeals if he could
show the Federal Court "cause and prejudice" resulting from a
denial to review.
A prisoner must show that some factor external to the
defense impeded counsel's efforts to raise the claim in state court.
factors constitute cause if it includes interference by state officials,
that makes compliance with the state's rules impracticable and a showing
that the factual or legal basis of the claim was not reasonably available
to counsel at the time he filed the prisoner's Petition for Writ of Habeas
Also, a retroactive change in the law and/or newly discovered evidence
represents acceptable excuses for failing to raise the claim earlier. The
failure to meet this standard the federal court could find the petition
constituted an abuse of the writ and the petition would be dismissed.
AMOUNT OF TIME FOR
REVIEW FOR DISTRICT COURT
For the first time in the
history of American law, Congress has statutory placed time restraints
on the Federal District Court to issue a ruling on the prisoner's petition
for writ of habeas corpus.
Once the prisoner has filed his petition for
writ of habeas corpus in the Federal Court, the Court has one hundred and
eighty days to issue its ruling.
AMOUNT OF TIME FOR REVIEW FOR CIRCUIT COURT OF APPEALS
The Court of
Appeals also has been limited to reviewing time. The Court has one hundred
and twenty days (120) to issue its ruling after the Attorney General's office files its
The Court must decide rehearing petitions within 30 days and
en banc (the entire court) decisions must issue its decision within one
hundred and twenty (120) days from the date the rehearing was granted or denied
NEW STATE LAW GOVERNING PROCEDURE IN DEATH PENALTY CASES
It is necessary
to look at TEXAS' NEW PROCEDURE IN DEATH PENALTY CASES for appealing capital
murder convictions and death sentences because it is the foundation that
each prisoner's appeal is based on.
Death penalty cases are automatically
appealed to the Texas Court of Criminal Appeals.
Following the jury's verdict
in convicting the prisoner of capital murder and sentencing him to death,
the District Clerk will prepare a statement of facts and transcripts covering
the trial testimony and evidence that was introduced.
The prisoner's attorney
is required to file his appellate brief within 30 days, unless the attorney
obtains an extension of time. After the prisoner's attorney files his appeal
brief, the District Attorney's Office is given the same amount of time
to file a reply brief, unless they obtain an extension of time.
NEW STATE LAW the prisoner is now required to file his Petition for Writ
of Habeas Corpus 45 days after his attorney files his direct appeal brief.
The Texas Court of Criminal Appeals will rule on both appeals simultaneously.
OLD STATE LAW
The same procedure for preparing the trial records are
the same. Direct appeal is heard by the Texas Court of Criminal Appeals
pursuant to Article 49.09 of the Texas Code of Criminal Procedure.
Court of Criminal Appeals, on an average, will take three to five years
before ruling on the appeal. The attorney then would file a Petition for
Writ of Certiorari in the United States Supreme Court attacking the Texas
Court of Criminal Appeals' decision within 90 days.
No Petition for Writ
of Habeas Corpus would be filed in the State Court until the prisoner's
case was heard on direct review and the conviction and death sentence became
final. A Petition for Writ of Habeas Corpus was considered to be collateral
proceedings under the old law.
ATTORNEYS FOR DEATH ROW PRISONERS PURSUING STATE AND FEDERAL RELIEF
The United States Supreme Court in Pennsylvania v. Finley, 481 U.S. 551,
556 (1987) held, "there is no constitutional right to counsel in state
collateral proceedings after exhaustion of direct review in the Court of
The Supreme Court applied the Finley ruling to
capital cases in Murray v. Giarratano, 492 U.S. 1, 9-10 (1989) "No
constitutional right to counsel for death row inmates seeking habeas review."
The prisoner cannot raise a claim of ineffective assistance of counsel
on habeas counsel's performance, regardless how ineffective he may have
This ruling establishes that the courts may appoint inexperienced
attorneys who have never represented a death row prisoner.
The OLD STATE LAW process may have seemed long but it often
provided sufficient time to weed out those individuals who were wrongfully
convicted and sentenced to death such as Randell Dale Adams and others.
The problem that confronts each prisoner now since the appeal process has
been shortened is that those wrongfully convicted will have a difficult
task to prove their innocence.
The NEW STATE LAW promotes and
the wrongfully convicted the fair opportunity to investigate and seek out
the evidence to prove their innocence.
The attorneys for Andrew Mitchell
took 11 years to discover the evidence that the prosecution knew the victim
was killed by Mitchell's son.
The subcommittee's report said that "a substantial number
of death row prisoners are indeed innocent, and it depicts that there is
high risk that some would be executed."
The attorneys for Clarence Brandley took
9 years to prove the witnesses who testified against Brandley were told
what to say by the Texas Rangers.
History is full of examples of citizen
being wrongfully convicted. The Dallas Morning News on October 21, 1993,
published an article on the House Subcommittee's Report that Texas and
16 other states were condemning innocent men to death. The report listed
that Texas had five who were wrongfully convicted and sentenced to death.
Randell Dale Adams
was wrongfully convicted for killing a police officer
in Dallas, but he was released in 1989 when documents were discovered that
proved prosecutors withheld favorable evidence.
convicted of killing a white teenager in Conroe. The Court of Criminal
Appeals reversed his conviction after it was discovered the Texas Rangers
instructed the witnesses to commit perjury testimony.
convicted for murder-for-hire. He was released after it was discovered
that his trial attorney was dating Mrs. McManus during the trial and subsequently
married Mrs. McManus after Vernon McManus's trial.
in 1990 when the Court of Criminal Appeals found the evidence was insufficient
to prove the case against him.
The problems that were cited for causing
persons to be wrongfully convicted were:
withholding favorable evidence
shoddy legal representation
post-trial review of innocent claims
politicization of the clemency
In view of all the FAILURES,
Congress continues to draft and pass legislation to streamline ONLY capital
cases. This is clearly an act of vengeance.
This NEW FEDERAL STATUTE raises
substantial questions about its viability. In narrowing the standard of
review for federal judges the wrongfully convicted will slip through and
be executed along with the guilty.
When a life is at stake, every safeguard
should be observed to ensure that the death penalty is not imposed arbitrarily
At the time of this writing, the United States Supreme
Court is considering the constitutionality of the retroactivity of the
NEW FEDERAL STATUTE.
To streamline capital cases and to rely on state courts
to interpret the Constitution of the United States is clearly a disregard
to the innocent individuals who have been wrongfully convicted. A bloodbath
surely will result in the implementation of this law.
Jerry Lee Hogue has been on Texas Death Row for 17 years. During his
confinement, he has studied capital litigation and has published several
News Letters and articles explaining capital litigation. He has completed
the Blackstone Paralegal course.