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A Review of the Anti-Terrorism and Effective Death Penalty Act of 1996
by Jerry Hogue #660

The Lamp of Hope Goes Internet
by Les Bower #764

What Price We Pay
by David Goff #999015

Unpardonable
by Windell Broussard #999064

Texas Prisoners Labor Union

Problems in TDCJ-ID

Capital Punishment and Thus Saith the Lord
by Rev. Joe E. Blackmon, father of Don Blackman

Texas Death Row Inmates Speaking Out on the Internet

You Now Have a Place to File Your Complaints and Problems Against Any Part or Operation With and In TDCJ-ID

Special Thanks Are Due!

We Couldn't Have Done It Without You

Murder Victims' Families Are Not Served by Another Death
by Pat Bane

Gone Too Soon
by James E. Session

Books That Need to be Checked Out

Death Row Activities and Events

ATTENTION! National Coalition Against the Death Penalty Thank You! Thank You!

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TEXAS DEATH ROW JOURNAL
published by The Lamp of Hope Project

Editor: Billy G. Hughes, Jr. CPL #556
Asst. Editor: Billy Nelson #999017

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from Hogue's article: "... The Court of Criminal Appeals reversed his conviction after it was discovered the Texas Rangers instructed witnesses to commit perjury. ..."
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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.

The 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 appeals.

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.

President 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 OLD LAW.

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.

It instructs 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 States.

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 law.

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 court.

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.

This standard of review required the Federal Court to review each claim independently of the state court's findings to determine whether there were any constitutional violations.

The Federal Judge had the power to grant relief even if he had doubts about the prejudice the prisoner may have suffered.

Under the 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 violation.

Those exceptions are listed below under the OLD FEDERAL STATUTE for deciding to grant an Evidentiary Hearing.

NEW FEDERAL STATUTE:
EVIDENTIARY HEARING

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:
EVIDENTIARY HEARING

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.

Objective 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 Corpus.

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 reply brief.

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.

Under the 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.

The 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 Criminal Appeals."

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 been.

This ruling establishes that the courts may appoint inexperienced attorneys who have never represented a death row prisoner.

CONCLUSION

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 prevents 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 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.

Clarence Brandley was wrongfully 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.

Vernon McManus was 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.

John Skelton was released 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:
— racial prejudice
— official misconduct
— withholding favorable evidence
— shoddy legal representation
— inadequate post-trial review of innocent claims
— politicization of the clemency process.

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."

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 and capriciously.

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.

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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.


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