July/August 2004 VOICE FOR THE DEFENSE 1

the merits of a case brought before it. Although this case came
close to satisfying jurisdiction under “those situations where
the federal claim has been finally decided, with further proceedings
on the merits in the state courts to come, but in which
later review of the federal issue cannot be had,” this ground for
jurisdiction was not satisfied. The California Court of Appeals’
opinion was only partially published, and the unpublished part
of the opinion included the separate evidentiary and prosecutorial
misconduct claims that had yet to be determined. However,
Johnson, in his cert petition, failed to include the unpublished
portion of the appellate court’s opinion. Under the Court’s rules,
a petitioner must include any “relevant opinions … entered
in the case” and without the unpublished portion of the decision,
the Court concluded that it lacked sufficient evidence to
determine that the Supreme Court of California’s decision was
final. Under this analysis, the Court concluded it did not have
jurisdiction to decide the case on its merits and dismissed the
case for want of jurisdiction.
Ninth Circuit failed to give proper deference to state court’s
determination: MIDDLETON V. MCNEIL, __ U.S. __, 124 S.Ct.
1830, 158 L.Ed. 2d 701 (2004), Cert. to 9th Circuit (344 F.3d
988), Reversed, 5/5/04: Opinion: Per Curiam.
McNeil was convicted of second-degree murder for killing
her husband, asserting a battered women’s defense. The jury
was instructed on voluntary manslaughter which included a
requirement that McNeil be in imminent peril that is apparent
to a reasonable person. McNeil contended the reasonable
person standard for imminent peril prevented the jury from
considering her imperfect self-defense claim and as a result
the lesser conviction of voluntary manslaughter was not available.
The California Court of Appeals conceded the instruction
was an improper definition of imminent peril but upheld the
conviction, but the 9th Circuit.reversed. McNeil claimed on
appeal that the reasonable person standard for imminent peril
was erroneously included in the jury instructions.
HELD: The judgment is reversed because proper deference
was not given to the state court’s decision and the Court of
Appeals was incorrect in concluding the state court unreasonably
applied federal law. Supremes also said the lower court
did not ignore the faulty instruction but held that given other
circumstances, where the charge correctly stated that McNeil’s
belief could be unreasonable, this instruction was not likely to
have misled the jury. The Court further held the assumption
that counsel’s arguments clarify an ambiguous jury charge
is particularly apt when it is the prosecutor’s argument that
resolves the ambiguity in favor of the defendant, such as it was
in this case.
Bribery statute is not unconstitutional: SABRI V. UNITED
STATES, __ U.S. __, 124 S.Ct. 1941, 158 L.Ed. 2d 891 (2004),
Cert. to 8th Circuit (326 F.3d 937); Affirmed, 5/17/04; Opinion:
Souter
Sabri offered three separate bribes to a city councilman to
secure favorable rulings from a community housing and development
committee. Prior to trial, Sabri moved to dismiss
the bribery indictment under Section 666 claiming the statute
was unconstitutional on its face for failure to require proof of
a connection between federal funds and an alleged bribe. The
district court held that Section 666 was invalid, but the 8th
Circuit reversed. That court held that an absence of an express
requirement to prove some connection between a given bribe
and federal funds was not fatal, and that the statute was constitutional
under the Necessary and Proper Clause.
HELD: Under 18 U.S.C. § 666(a)(2), it is not necessary to
prove a connection between a given bribe and receipt of federal
funds in a charge of bribery. Supremes unanimously held
that 18 U.S.C. §666(a)(2), forbidding bribery of state, local and
tribal officials of entities that receive at least $10,000 in federal
funds, is a valid exercise of congressional authority under Article
I of the Constitution, and that it is not invalid because it lacks
an express requirement to prove some connection between a
given bribe and receipt of federal funds. The Court noted that
§666 addresses the problem of proving a connection between
a bribe and receipt of federal funds at the source of the bribes,
using rational means, to safeguard the integrity of the state, local
and tribal entities that receive federal funding. The Court
held that although not every bribe is traceable to federal funds,
enforcement of §666 is not beyond federal interest and is a valid
exercise of Congress’ Article I authority.
“Cut-down procedure” – Habeas Corpus was not required
when challenge was not to conviction or duration of sentence:
NELSON V. CAMPBELL, __U.S. __, 124 S.Ct. 2117, 158 L.Ed.
2d 924 (2004), Cert. to 11th Circuit (347 F.3d 910), Reversed
and remanded, 5/24/04: Opinion: O’Connor.
Nelson was convicted of capital murder and sentenced to
death by lethal injection. A ‘cut-down’ procedure was found
necessary to administer the lethal injection on Nelson, which
requires a cut to the arm or leg to provide access to the veins.
He filed a 42 U.S.C. §1983 action seeking a permanent injunction
to stop the ‘cut-down’ procedure and a temporary stay of
execution because of cruel and unusual punishment and deliberate
indifference to his medical needs which are in violation of
his civil rights. Federal district court dismissed the complaint.
On appeal, the 11th Circuit affirmed the dismissal holding the
§1983 claim was functionally equivalent to a habeas petition
and that Nelson’s claim of being denied access to a physician
was barred by previous rulings.
HELD: §1983 is an appropriate vehicle for Nelson’s 8th
Amendment claim seeking a temporary stay of execution
and permanent injunctive relief in regards to a condition
of confinement. Venous access would not be eliminated by
enjoining the ‘cut-down’ procedure so the duration of sentence
or method of execution are not called into question allowing
for use of §1983. The State would be able to continue with the
sentence and execution by altering a preliminary procedure.
Habeas corpus was not required when the challenge is not to
July/August 2004 VOICE FOR THE DEFENSE 37