James Terry Roach v.

Warden Joseph Martin

BACKGROUND
On December 13, 1977, Roach pleaded guilty as a principal to two counts of murder,
criminal sexual conduct, armed robbery, and kidnapping. Roach also pleaded nolo
contendre to two counts of conspiracy. On December 14, 15, and 16, 1977, the
court, sitting without a jury in accordance with the provisions of S.C.Code Sec. 16-3-
20(B),1 conducted a sentencing hearing for Roach and co-defendant Joseph Carl
Shaw.2 The record shows that Roach, Shaw, and Ronald Eugene Mahaffey spent
the morning of October 29, 1977 drinking beer and taking drugs. 3 In the early
afternoon, Roach, Shaw and Mahaffey decided to, in the words of Mahaffey, "find a
girl to rape." The three drove to a baseball park outside of Columbia, South Carolina,
where they saw a parked car occupied by 17-year old Thomas Taylor and 14-year
old Carlotta Hartness. Shaw pulled up beside the parked car, and Roach, sitting in
the front passenger seat of Shaw's car, aimed a .22 caliber rifle at Taylor and
demanded money. Taylor gave them his wallet. Shaw and Mahaffey got out of
Shaw's car. Mahaffey took the keys to Taylor's car, and Shaw forced Miss Hartness
to get into the backseat of Shaw's car with Mahaffey. Shaw then got back into his car
and said to Roach, "OK, Now." Roach then fired the rifle into the parked car and
killed Taylor.
The three drove Miss Hartness to a dirt road a short distance away, and she was
forced to disrobe. She was repeatedly raped by all three and was forced to perform
oral sex with Shaw and Mahaffey. While Shaw was raping the girl, Roach and
Mahaffey looked through Taylor's wallet. The stolen wallet was later buried in the
area. Shaw asked who would shoot the girl and Roach volunteered. Shaw ordered
the girl to put her face to the ground but she refused. After pleading for her life
several times, Miss Hartness finally complied and put her face to the ground. Roach
then shot her in the head several times, causing her body to convulse. 4 Shaw took
the rifle from Roach and again shot the girl in the head. The three then disposed of
the rifle and bullets and returned to Taylor's body to make sure he was dead.
Several days later, Roach, Shaw, and Mahaffey were arrested. The State of South
Carolina elected to seek the death penalty against Roach and Shaw. As stated,
because Roach pleaded guilty, the sentencing hearing was conducted before the
court. S.C.Code Sec. 16-3-20(B). As required by S.C.Code Sec. 16-3-20(C), the
sentencing judge considered evidence in mitigation and aggravation and,
accordingly, made findings based on such evidence. In considering Roach's
sentence, the sentencing judge found beyond a reasonable doubt the existence of
three statutory aggravating circumstances: murder committed while in the
commission of rape; murder committed while in the commission of kidnapping; and
murder committed while in the commission of armed robbery. S.C.Code Sec. 16-3-
20(C) (a) (1) (a), (c), (e). After considering the evidence in mitigation for Roach, the
judge found the existence of several statutory mitigating circumstances: Roach had
no significant history of prior criminal activity involving the use of violence against
another person; the murder was committed while he was under the influence of
extreme mental or emotional disturbance; he acted under duress or under the
domination of another person; his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was substantially
impaired. S.C.Code Sec. 16-3-20(C) (b) (1), (2), (5), (6). Additionally, relating to
mitigating circumstances, the sentencing judge considered that Roach was suffering
from mental retardation and an antisocial personality disorder and was below the
age of 18 at the time of the crime. S.C.Code Sec. 16-3-20(C) (b) (7), (9). Considering
the circumstances in mitigation as well as the existence of the three statutory
aggravating circumstances, the sentencing judge found as an affirmative fact that the
evidence in the case warranted imposition of the death penalty upon Roach and was
not the result of prejudice, passion or any other arbitrary factor. S.C.Code Sec. 16-3-
20(C). The judge sentenced Roach to death on the two murder charges. 5
On direct appeal to the South Carolina Supreme Court, Roach's convictions and
sentences were affirmed. State v. (Roach), Shaw, 273 S.C. 194, 255 S.E.2d
799 (1979). The United States Supreme Court denied Roach's petition for certiorari,
444 U.S. 1026 (1980), and later denied his petition for rehearing, 444 U.S. 1104
(1980). Roach then sought post-conviction relief in the state courts pursuant to
S.C.Code Sec. 17-27-10 et seq. The state post-conviction court conducted a
comprehensive evidentiary hearing and denied Roach's petition by order of July 9,
1980. Roach thereafter appealed this denial to the South Carolina Supreme Court,
which dismissed the appeal, finding no error of law present. Roach v. State,
Memo.Op. No. 81-MO-197 (S.C. July 17, 1981). Thereafter, the South Carolina
Supreme Court denied Roach's motion for a stay of execution and the date of
execution was set for September 18, 1981.
Having exhausted his state court remedies, Roach filed his petition for federal
habeas corpus relief. On September 4, 1981, the district court granted Roach's
petition for a stay of execution pending resolution of the issues stated in the petition.
Proceedings in Roach's federal habeas corpus petition were stayed, however, while
Roach again sought direct review by the United States Supreme Court. When that
Court again denied Roach's petition for certiorari on January 25, 1982, that stay of
proceedings was dissolved. The case was referred to a United States Magistrate to
review the pleadings and submit findings of fact and recommendations of disposition.
Accordingly, the magistrate submitted his report recommending the entry of
summary judgment in favor of respondents without an evidentiary hearing. The
district court agreed that Roach's federal constitutional claims were without merit and
granted the State's motion for summary judgment, from which Roach now appeals.
While, for the most part, we consider Roach's contentions in the order in which he
has submitted the issues in his brief, a few of the issues have been consolidated for
discussion.
I. DISCOVERY REQUESTS AND REQUEST FOR AN EVIDENTIARY HEARING
Roach alleged that an evidentiary hearing was mandatory under Townsend v.
Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and 28 U.S.C. § 2254(d).
He asserts that a fair and adequate hearing was not held on any of his claims in the
state courts and, in this respect, he has made several requests for discovery,
appointments of experts, and appointments of investigators for the purpose of
developing his constitutional claims. On federal habeas corpus review, a state court's
findings of fact are entitled to presumption of correctness, Sumner v. Mata, 449 U.S.
539, 550, 101 S. Ct. 764, 770, 66 L. Ed. 2d 722 (1981), unless a petitioner can show
that an evidentiary hearing on an issue of fact is mandatory under the criteria
established in 28 U.S.C. § 2254(d) or in Townsend v. Sain, supra.
Roach alleges that he meets several of these criteria for numerous reasons: (1) the
state factfinding procedures were not adequate to afford a full and fair hearing on
Roach's constitutional claims, see 28 U.S.C. § 2254(d) (2); (2) since the state court
hearing was held, Roach has discovered, and now relies upon, substantial new
evidence, see Townsend, 372 U.S. at 313, 83 S. Ct. at 757: (3) material facts were
not adequately developed at the state court hearing, see 28 U.S.C. § 2254(d) (3);
and (4) the state court's factual determinations are not supported by the record as a
whole, see Townsend, 372 U.S. at 313, 83 S. Ct. at 757. 6 We do not agree with any
of the arguments Roach advances.
A. Adequacy of the State factfinding procedures
Roach contends that the state factfinding procedures were inadequate in several
respects and that, as a result, he was denied the opportunity to develop fully his
constitutional claims in the state courts. In this regard, Roach claims that: the State
did not, or could not, locate a material witness who might have been able to shed
light on the possibility that Roach was psychotic at the time of the offenses; the state
post-conviction court did not appoint an expert social scientist to testify concerning
the propriety of the death penalty; the neurological examination of Roach by a
physician employed by the State failed to adequately develop neuropsychiatric facts
relevant to Roach's constitutional claims; the state court improperly quashed a
subpoena issued by Roach to depose a former Chief Staff Attorney for the South
Carolina Supreme Court and thus Roach was unable to ascertain the procedure by
which the South Carolina Supreme Court conducted its proportionality review; and
the state post-conviction court did not produce the transcript of the record concerning
the disbarment of lead counsel Walter Brooks even though the court considered
such record in reaching a factual determination.7
In support of a theory that it would be disproportionate to impose the death penalty
upon Roach because he suffered from involuntary drug-induced psychosis at the
time of the offenses,8 discussed in Part III, B, infra, Roach has requested the
appointment of an investigator to locate one Medders so that Roach may depose
Medders to ascertain the identity of the drug Medders allegedly injected into Roach
on the day of the offenses. The evidence produced at the sentencing hearing
through Roach's psychiatric examiner, Dr. Edmond Camp, III, indicated that Roach
told him that on the date of the murders he had consumed a lot of beer, smoked a lot
of marijuana, and had injected a substance called "Diamond Crystal THC" into his
veins. Dr. Camp further testified that THC was an hallucinogenic drug and that,
according to Roach, Roach was in a psychotic state after he had injected the drug.
Dr. Camp's identification of the drug Roach used was on the basis of Roach's
discussions with Dr. Camp.9
Contrary to anything that was produced at trial, however, Roach now maintains that
he was under the influence of phencycodine (PCP) at the time of the murders, and
he claims that the development of this fact might tend to support either an insanity
defense or a case in mitigation based on diminished capacity.10 Roach also seeks to
depose a biochemical scientist, Dr. Candace Pert of the National Institute of Mental
Health, who would testify that PCP induces symptoms indistinguishable from
paranoid schizophrenia. We do not think that the requested and anticipated
testimony would enhance the state court's factfinding procedures nor would it
enhance development of Roach's constitutional claims. The plain fact is that the
sentencing judge was well aware of the testimony that Roach was under the
influence of some type of drug, of which he took note. He apparently attached
significance to such evidence by finding in mitigation that Roach's capacity to
conform his conduct to the requirements of the law was substantially impaired and
that the crimes were committed while Roach was under the influence of extreme
mental or emotional disturbance. Moreover, even if the injected drug was in fact PCP
and not Crystal THC, THC being the active ingredient of marijuana, the mere
relabeling of the drug would not support a different finding with respect to Roach's
state of mind. The state court record clearly supports a finding that Roach vividly
recalled the details of the murders and that he was able to distinguish between right
and wrong. Thus, we find no merit in Roach's requests to develop new evidence
concerning the name and general effects of the drug allegedly injected because we
do not believe that this inquiry would enhance his constitutional claims of ineffective
assistance of counsel and disproportionate application of the death penalty for the
reasons we discuss in Part II and Part III, respectively.
Next, Roach seeks to retain Dr. Raymond Paternoster to give live testimony
concerning his study of the application of the South Carolina Death Penalty Statute
post-Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). In
effect, Roach claims that although Dr. Paternoster testified at the state post-
conviction hearing, Roach, an indigent, was not able to adequately develop material
facts concerning his claim of unconstitutional application of the death penalty statute
because the State denied Roach's request to have Dr. Paternoster appointed at the
State's expense to conduct a thorough study of the application of the death penalty
under South Carolina's post-Gregg statute. We find that any failure to appoint Dr.
Paternoster is meritless because Dr. Pasternoster did testify at the state post-
conviction hearing at the expense of the State. So far as Dr. Paternoster's later
findings are concerned, we have rejected his theory in Briley v. Booker, 746 F.2d
225 (4th Cir. 1984).
Roach also asserts that he was denied a fair hearing because the State failed to
appoint a neurologist, who was not an employee of the State, to conduct a
neurological examination on Roach. As a result of this failure, Roach claims he was
unable to develop neuropsychiatric facts relevant to his constitutional claims. We
have considered the testimony of Dr. Charles N. Still, appointed by the court at the
post-conviction hearing to conduct tests on Roach to determine whether Roach had
manifested symptoms of the genetically-transmitted terminal brain deteriorating
Huntington's Disease, and fail to see how the mere fact that Dr. Still was employed
by the State operated to deny Roach a fair hearing. In fact, Dr. Still, an expert on
Huntington's Disease (HD), corroborated and gave credibility to the testimony of
Roach's examiner, Dr. Camp, at the sentencing hearing, as well as enlightening the
court on the effects of the disease in general. We think the suggestion that Dr. Still, a
known expert in the area of HD research, would somehow taint his medical
diagnosis of Roach and testimony concerning the disease merely because he is
employed by the State is entirely without evidence to support it and borders on
frivolity.
Next, Roach claims that he was denied a fair hearing because the State quashed a
subpoena directed by Roach to Mr. Clyde Davis, a former Chief Staff Attorney for the
South Carolina Supreme Court. Roach maintains that he must be afforded the
opportunity to depose Davis so that Roach can discover that court's procedure in
conducting a proportionality of sentence review.11 We agree with the district court
that such an inquiry would thwart the confidentiality of that court's decision-making
process. Furthermore, we do not think that the State's refusal to let Roach depose
Davis has denied Roach a fair hearing, for in any event we think that the South
Carolina Supreme Court conducted a meaningful review of the death sentence.
Finally, to support a claim of unconstitutional conflict of interest amounting to
ineffective assistance of counsel, which we discuss in Part II, A, infra, Roach claims
the need to depose the custodian of records of the Board of Commissioners on
Grievances and Discipline for the South Carolina Bar. During the state post-
conviction hearing, the judge refused to hear evidence concerning the disbarment of
Roach's lead counsel, Walter Brooks, because the South Carolina Supreme Court
had not issued a formal opinion in the matter. After the South Carolina Supreme
Court issued a formal opinion disbarring Brooks on May 6, 1980, see In re Brooks,
274 S.C. 601, 267 S.E.2d 74 (1980), cert. denied, 449 U.S. 984, 101 S. Ct. 401, 66
L. Ed. 2d 246 (1980), the state post-conviction court subpoenaed the disbarment
proceeding records. That court then studied the complete record of the proceeding
against Brooks before reaching its decision and found, "there is nothing in that
record which shows, nor indicates, any dereliction of duty [by Brooks in his
representation of Roach], nor is there any credible evidence that shows Mr. Brooks
to have failed to adequately and effectively represent his clients." Since Roach did
not see the record of the disbarment proceeding at the time the state post-conviction
court considered the matter, Roach yet claims the need to depose the custodian of
the Grievance Committee records to determine whether the custodian holds any
records in the matter that were not considered by the post-conviction court.
We see no merit to this argument. There is nothing to suggest that the Grievance
Committee did not comply with the post-conviction court's subpoena and deliver the
entire record of the disbarment proceeding to that court. We think the state post-
conviction court, in a commendable exercise of caution, procured the record of the
disbarment proceeding and considered it before arriving at its decision. Despite the
fact that the record of the state disbarment proceeding has been public for months
on end between May 6, 1980 and the date of the determination of this case both in
the district court and here, there is no suggestion by Roach pointing to anything in
the disbarment record which might affect his trial and sentence. Even in spite of this,
the district court considered the record of the disbarment proceeding as did the state
post-conviction court. Nothing shown or suggested to us here gives us any pause in
holding that the district court's and the state post-conviction court's findings were
quite correct, and we so hold. See FRCP 52(a); 28 U.S.C. § 2254(d).
Accordingly, notwithstanding Roach's several arguments, we find that the factfinding
procedure employed by the State afforded Roach a full and fair hearing.
Roach contends that since the time of the state post-conviction hearing he has
discovered new evidence to support his constitutional claims and that he is therefore
entitled to an evidentiary hearing. First Roach seeks to have Dr. Paternoster testify
concerning a study Dr. Paternoster has performed since Roach's state hearing. The
study indicates, the argument goes, that the South Carolina post-Gregg statute is
applied disproportionately according to race. It would show that a murderer who has
killed a white victim has a greater chance of having the death penalty imposed on
him than one who has killed a black victim. We note that this is the same type of
analysis that we rejected in Briley v. Booker, 746 F.2d 225 (4th Cir. 1984), and we, in
accordance with our reasoning in Briley, similarly reject the necessity of conducting
an evidentiary hearing on the issue.12
Also for our consideration is Roach's assertion that there now exists a way to
diagnose Huntington's Disease (HD) presymptomatically. HD is an inherited
neuropsychiatric disorder which, upon manifestation, causes involuntary movements,
emotional disturbance, intellectual impairment, and inevitably leads toward dementia
and ultimate death.13 Because HD is an autosomal dominant genetic disorder, each
child of an affected parent has a 50% chance of inheriting the disease. It is generally
accepted that the age of onset of HD occurs when an at-risk individual (one who has
a parent with HD) reaches somewhere between the ages of 35 and 45 and that after
onset the disease progresses for 10 to 20 years until the victim ultimately dies. 14
Since Roach's mother has been diagnosed to have HD in an early stage, Roach has
a 50% chance of also carrying the Huntington's gene. Roach was examined by Dr.
Still by order of the state post-conviction court, and Dr. Still found that at that time he
could not diagnose that Roach was suffering from HD. Dr. Still, however, further
testified that he was unable to conclude to a medical certainty that Roach would not
later manifest the disease since, at the time of the hearing, no accepted reliable
presymptomatic test existed for detecting HD in at-risk individuals before onset of
symptoms. Roach asserts that there now exists a method for presymptomatic
detection of HD and accordingly has requested the appointment of Dr. Pert to testify
as to the new method for early diagnosis of the disease.
Counsel for Roach definitively stated at oral argument that because of the
technological breakthrough in neuroscience research, Positron Emission
Tomography (PET Scan) now provides a means by which HD may be detected
before onset of symptoms. In this regard, Roach requests the appointment of Dr.
Pert to elicit testimony concerning the PET Scan and its "diagnostic potential for the
presymptomatic diagnosis of Huntington's Disease." At oral argument, counsel for
Roach was asked by the court to cite documentation which supported the assertion
that the PET Scan now provides a reliable presymptomatic test. While counsel did
not refer to any specific publication, he stated that the National Institute of Mental
Health had recently issued a memorandum on the subject. Acknowledging that our
facilities for medical research are quite limited, and our ability to interpret the material
found as much so, we have discovered one reference to PET Scan. The reference
appeared in an undated memorandum issued by the National Institute of
Neurological and Communicative Disorders and Stroke (NINCDS), National
Institutes of Health, which in pertinent part stated:
HUNTINGTON'S DISEASE
***
***
PET RESEARCH. An increasing number of grantees in the NINCDS positron
emission tomography (PET) program are using PET to study the brains of HD
patients. This brain imaging technique allows scientists to study the brain's metabolic
activity in live patients. Research work on PET offers hope for the development of
early diagnostic and therapeutic techniques for HD. (Emphasis added)
Of interest, we also found that pioneering activity in HD research and diagnosis has
brought about a breakthrough in recombinant deoxyribonucleic acids (DNA)
technology through which scientists have been able to isolate and locate the genetic
marker linked to the HD gene.15 As well, electromyography to identify decreasing
motor control may offer hope of pre-clinical identification of the disease.16
While counsel for Roach did not bring this other newly-discovered technology to our
attention, our reading on the subject, limited as it must be, has only confirmed Dr.
Still in his testimony that no technique is available at this time to diagnose HD
presymptomatically. While we are aware that Roach would attempt to refute this
finding by putting Dr. Pert on the stand, Roach has furnished us no basis to support
his contention, and we have found no support on our own.
In any event, even assuming arguendo that Roach does in fact have the
Huntington's gene, in which case HD will inevitably manifest its symptoms, we can
see no way that this fact alone would alter Roach's conviction and sentence. In other
words, a determination today that Roach has the HD gene would not affect the
findings that Roach was sane at the time of the offenses and that he was competent
to stand trial, and is now competent. Thus, we are faced with the question of whether
the presence of the HD gene, or even manifestation of the disease at this date,
would preclude the imposition of the death sentence on the basis of the Eighth
Amendment's prohibition against cruel and unusual punishment. We think such a
result is not required by the Eighth Amendment. Although the historic standards of
our society and some statutes may not permit the execution of an insane man, see
Solesbee v. Balkcom, 339 U.S. 9, 70 S. Ct. 457, 94 L. Ed. 604 (1950); Nobles v.
Georgia, 168 U.S. 398, 18 S. Ct. 87, 42 L. Ed. 515 (1887), Roach has presented no
evidence to indicate that he is insane, and we have no reason to so surmise.
Consequently, absent evidence of Roach's insanity, we do not think that a diagnosis
of Roach as having the HD gene would affect the death sentence imposed.
We accordingly find that Roach is not entitled to an evidentiary hearing on the basis
of newly-discovered evidence.
C. Material facts were not adequately developed in the state
courts
Essentially, the material facts that Roach claims were not adequately developed in
the state courts are the same facts that formed the basis for Roach's assertion that
the state factfinding procedures denied him a full and fair hearing on his
constitutional claims. For the same reasons that we found in Part I, A, supra, that the
state factfinding procedures were adequate with respect to the development of
certain facts, we do not think that Roach was denied the opportunity to introduce
material facts for the development of his constitutional claims. However, we have not
considered previously Roach's assertion that he was unable to develop in the state
courts material facts concerning the effects of HD.
At the sentencing phase, Dr. Camp, who at that time was the chief forensic
psychiatrist for the State, testified on behalf of Roach. He testified that Roach was
mentally retarded and that Roach could not be presently diagnosed as suffering from
HD. On the basis of Dr. Camp's examination of Roach and testimony thereon, the
sentencing judge found several mitigating circumstances.17 At the state post-
conviction hearing, however, counsel for Roach argued that Dr. Camp had
exaggerated his professional publications and that he had testified inaccurately with
respect to HD and that, as a result, Roach was prejudiced at the sentencing hearing.
Accordingly, the state post-conviction court ordered Dr. Still to examine Roach and
his family.18 While Dr. Still's testimony regarding HD was significantly more complete
than Dr. Camp's testimony, Dr. Still confirmed Dr. Camp's finding that Roach could
not be presently diagnosed as suffering from HD. Neither Dr. Camp nor Dr. Still was
able to determine to a medical certainty whether Roach would ever suffer from HD.
Nevertheless, Roach asserts that material facts concerning HD were not developed
at the sentencing phase because Dr. Camp was not familiar with the disease.
Presumably, these nondeveloped facts are material to the extent that the sentencing
judge was denied the opportunity to consider the possible effects HD might have had
on Roach's behavior at the time of the crimes.
While we might easily dispose of this argument for the reason that Roach could not
be diagnosed as having the Huntington's disease gene at the time of the offenses, or
even as late as the post-conviction hearing, Dr. Still's testimony should be
mentioned. He testified that prior to symptoms by means of which Huntington's
disease may be diagnosed there are certain behavioral changes in those people who
have the gene which probably precede those symptoms. They are: subtle mental
changes which antedate the symptoms in most cases, and there may be significant
effects on thought, memory and perception.
We believe that Dr. Still's testimony adequately developed material facts concerning
HD. The state post-conviction court, keenly aware of its responsibility, carefully
considered Dr. Still's testimony and found that from a medical diagnostic standpoint
Dr. Still's and Dr. Camp's testimony was not materially different. Because we think
that Dr. Still adequately developed the facts with respect to HD, Roach is not entitled
to an evidentiary hearing to explore the issue further.
D. The State court's factual findings are not supported by
the record as a whole
We have carefully considered the state court record and are convinced that the state
court's factual determinations are fairly supported by the record as a whole. Since we
find that the record fairly supports the factual determinations, a further evidentiary
hearing in a federal court would not enhance the quality of justice rendered Roach in
the state courts.
II. VALIDITY OF THE GUILTY PLEAS AND SENTENCES
Roach next asserts that he is entitled to relief because his guilty pleas and
sentences are invalid.
Roach claims that his guilty pleas were involuntary, and thus invalid, because he
received ineffective assistance of counsel in deciding to enter the guilty pleas. In this
connection, Roach also asserts several reasons in support of his argument that
counsel was ineffective at the sentencing phase and thus the sentences are invalid.
A third argument Roach advances in this area is that his pleas and sentences are
invalid because he was represented by counsel with an alleged unconstitutional
conflict of interest. We will consider these contentions in order.
Despite the possibility that in a bifurcated proceeding counsel may be ineffective at
either phase, we will discuss Roach's ineffectiveness claims as they relate to both
phases because Roach essentially has claimed that for many of the reasons counsel
was deficient in preparing a defense in the guilt phase, counsel was similarly
deficient in preparing a case in mitigation at the sentencing phase.19 Roach's
ineffective assistance of counsel claims were reviewed extensively by the state post-
conviction court upon an evidentiary hearing, and by the district court below, and we
have considered, upon our own review of the record, that Roach received effective
assistance of counsel at both the guilt and sentencing phases.
Strickland v. Washington, --- U.S. ----, 104 S. Ct. at 2052, 80 L. Ed. 2d 674 (1984),
establishes the standard by which attorney performance is measured for the purpose
of resolving ineffective assistance of counsel claims. "The proper measure of
attorney performance remains simply reasonableness under prevailing professional
norms." 104 S. Ct. at 2063. The Court in Strickland emphasized that for purposes of
evaluating attorney conduct, every effort must be made to view the conduct from
counsel's perspective at the time. Id. at 2065. "Because of the difficulties inherent in
making the valuation, a court must indulge a strong presumption that counsel's
conduct falls within the range of reasonable professional assistance." Id.
Furthermore, "any deficiencies in counsel's performance must be prejudicial to the
defense in order to constitute ineffective assistance...." Id.
We think the district court correctly disposed of Roach's ineffective assistance claims
after determining that trial counsel's actions were strategic choices based on
informed, professional deliberation, and will not review each of those claims in detail
here because, under Strickland, we should be extraordinarily slow to second-guess
counsel's trial strategy. Strickland, p. 2065. Two of Roach's contentions in this
respect, however, merit some discussion.
In essence, Roach has alleged that trial counsel failed to conduct an adequate
factual investigation regarding the type of drug Roach had injected and that counsel
failed to conduct an independent investigation of HD. As a result, Roach claims that
counsel failed to develop a possible defense based on insanity or involuntary
intoxication or drug use, and that counsel similarly failed to present such a case in
mitigation.
Central to Roach's argument are the claims that had Roach's trial attorneys further
investigated HD and had they discovered what drug Roach had injected, the
attorneys would have been able to develop an insanity defense or an involuntary
intoxication or drug use defense or case in mitigation.
We do not agree that counsel was deficient in failing to develop an insanity defense
premised, as Roach now maintains, on an interlocking theory of insanity based on
the presence of HD and drug-induced psychosis. Roach's claim assumes that Roach
was in fact insane under the M'Naughton rule at the time of crimes because of the
"presence of the mental disease Huntington's and ... drug-induced psychosis" and
that counsel ignored this fact. We think such an assumption totally ignores the fact
that trial counsel obtained Dr. Wayne Lockhart, a psychiatrist, of the State Hospital to
perform a psychiatric examination on Roach and it was Dr. Lockhart's opinion that
Roach was competent at the time of the offenses and was competent to stand trial.
His testimony would have been less favorable to Roach than the physician who
testified. Counsel for Roach made an informed decision based on Dr. Lockhart's
findings that since Roach was not insane under M'Naughton, there would be no
basis upon which to establish an insanity defense. Roach's present counsel
maintains, in effect, that even though trial counsel obtained the psychiatric opinion
that Roach was sane, they nevertheless had the duty to explore an insanity defense
based on HD and drug-induced psychosis. Implicit in this argument is the fact that
present counsel would have us hold that trial counsel had an affirmative duty to shop
around for another psychiatrist who would have found Roach to be insane. We have
previously excluded such claims, see, e.g., Turner v. Bass, 753 F.2d 342, 350 n. 7
(4th Cir. 1985); Barfield v. Harris, 719 F.2d 58, 63 (4th Cir. 1983), aff'g, 540 F. Supp.
451 (E.D.N.C. 1983), and we do so here because we think counsel reasonably relied
upon Dr. Lockhart's examination to conclude that no basis for an insanity defense
existed.
Next, we consider whether trial counsel was deficient in failing to investigate and
develop a defense based on involuntary intoxication. In this regard, present counsel
claims that trial counsel was deficient in failing to investigate what type of drug
Roach injected, and the effects that drug would have had on Roach, and counsel
failed to investigate the possibility that HD would have caused Roach to abuse this
substance involuntarily. Roach's present counsel argues that trial counsel failed to
pursue a defense based on involuntary intoxication which would have satisfied
M'Naughton. Roach's present counsel maintains that trial counsel should have
investigated the possibility that Roach was in a drug-induced psychotic state caused
by injecting PCP and that this drug injection was involuntary because substance
abuse is an involuntary symptom of HD.
We reject such a contention because we think present counsel's argument is clearly
a product of hindsight and fails to address the facts reasonably relied upon by
counsel at the time. See Strickland, 104 S. Ct. at 2065. Furthermore, the record
belies the argument. Evaluating trial counsel's conduct from counsel's perspective at
the time, as Strickland requires us to do, we think counsel's failure to develop an
involuntary intoxication defense was reasonable under the circumstances. Roach
admitted to trial counsel that he (Roach) had been drinking beer and smoking
marijuana on the day of the murders. Counsel specifically rejected a defense based
on alcohol or drug abuse because Roach recalled the events of the murders "with
such conciseness" that, consistent with Roach's admission that he only drank beer
and smoked marijuana, made such a defense seem implausible. Accordingly, trial
counsel rejected such a defense, and in preparing to present Roach's case to go
before a jury, counsel made the informed strategic choice to portray Roach in a
manner that would generate sympathy from the jury. More specifically, trial counsel
intended to emphasize Roach's two mental deficiencies, mental retardation and
antisocial personality disorder, and to make Mahaffey, who was guaranteed no more
than a life sentence, appear the more culpable. In forming this defense and
mitigation, trial counsel relied on the information supplied by Roach concerning the
drug use. Since trial counsel was impressed with Roach's ability to recall the details
of the murders, it was reasonable for counsel to rely on Roach's statement to them
as to drug use in deciding not to investigate the drug use further. See Strickland, 104
S. Ct. at 2065.
Furthermore, we do not think that this decision not to investigate somehow became
unreasonable after trial counsel finally became aware that Roach had a shot of a
substance alleged to have been "Crystal THC." This conclusion requires a brief
discussion of the circumstances surrounding the posture of Roach's case.
On Monday, December 12, Shaw and Mahaffey entered their guilty pleas. Roach
and counsel were in the courtroom at this time and intended to go to trial on the
issue of guilt. In fact, at this point, trial counsel had concentrated their efforts in
preparing for jury voir dire. In any event, while Mahaffey was relating his story to the
court, Roach, according to trial counsel, "broke down" and admitted to counsel that
Mahaffey was telling the truth. It was at this time that counsel became aware that,
contrary to Roach's previous assertions, Roach was the triggerman in both murders
and that Roach had injected "Crystal THC" on the day of the murders. Viewing these
inconsistent and devastating statements as trial counsel must have viewed them in
the context of preparing to enter a not guilty plea and go to the jury on the theory that
Roach was a mentally deficient nontriggerman, we think trial counsel aptly described
his situation as being "on the hot seat" in the context of having to quickly reassess
the merits of pleading Roach not guilty. In the time that counsel did have to discuss
with Roach and his family the possibility of pleading guilty, counsel did ask what
effect the "Crystal THC" had on Roach and, upon Roach's response, became
convinced that the drug did not alter Roach's mental functioning except to make
Roach feel "racy" and have more self confidence.
Present counsel now attempts to show that the drug injected was not Crystal THC,
THC being the active ingredient of marijuana, but rather was PCP which causes
violence and psychotic behavior. With this theory, present counsel asserts that trial
counsel was deficient in failing to discover that the drug was PCP. This contention is
without merit. Even if the drug were PCP and not THC, an assumption highly
speculative at best, we think counsel adequately discovered the effects of the drug
on Roach and reasonably concluded that Roach remembered too many details of
the murders to pursue a defense based on alcohol and drugs. Counsel's actions in
this regard were informed strategic choices based on information supplied by Roach
and reasonable reliance on such. See Strickland, 104 S. Ct. at 2065.
Presumably to argue that Roach's drug injection was involuntary so as to avoid the
law in South Carolina that voluntary drug injection is no defense to a crime in that
State, see State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 (1979), present counsel
has asserted that trial counsel should have investigated HD to discover that
substance abuse is an involuntary symptom of HD. In other words, counsel should
have discovered that HD caused Roach to abuse substances excessively and that
this abuse was not voluntary intoxication or drug use. We think the argument lacks
merit. The argument assumes that Roach had HD at the time of the murders and
that the presence of the disease caused Roach to abuse intoxicating substances.
Since Roach clearly was not diagnosed to have HD at the time of the murders, the
argument fails. The same principles apply as an answer to Roach's claim of failure to
prepare a mitigation defense based on intoxication and drug use.
Present counsel also asserts that trial counsel was ineffective in preparing a case in
mitigation on the theory of involuntary intoxication. In this regard, counsel reasserts
the claim that trial counsel should have investigated and developed evidence with
respect to the type of drug Roach injected and the effects HD might have had on
Roach. [Id] We do not agree because, for many of the reasons we stated before,
counsel made reasonable and informed strategic decisions under the circumstances
then existing. While we do not think counsel was deficient in preparing a case in
mitigation, especially in view of the fact that the sentencing judge found several
mitigating circumstances based on Roach's mental deficiencies and drug use, we
are of opinion that Roach was not prejudiced by any failure of counsel to develop
evidence based on HD or drug-induced psychosis. The record clearly shows that the
sentencing judge considered Roach's drug use as well as mental deficiencies.
Moreover, to the extent that there is ample evidence in the record to support the
finding that Roach was not psychotic at the time of the murders, and trial counsel
steadfastly believed such, we think present counsel's drug-induced psychosis theory
clearly is a product of hindsight.
Entirely apart from the argument that counsel was ineffective in preparing a defense
or case in mitigation is the present assertion that the pleas and sentences are invalid
because Roach was being represented by lead counsel Walter Brooks who, at the
time, was under investigation for disbarment by the South Carolina Board of
Commissioners and Grievances. In essence, Roach claims that because Brooks was
representing Roach at a time when Brooks was under investigation by the State Bar
authorities, it was an inherent unconstitutional conflict of interest for Brooks to
represent Roach since the State of South Carolina was prosecuting Roach. For
purposes of determining ineffectiveness under Strickland, we would presume
prejudice from such representation "only if the defendant demonstrates that counsel
'actively represented conflicting interests' and 'that actual conflict of interest
adversely affected his lawyer's performance.' " Strickland, 104 S. Ct. at 2067, citing,
Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333
(1980).
Roach has failed to show an actual conflict of interest. First, Brooks was not under
investigation by the same authorities that were prosecuting Roach. Secondly, Roach
has made no showing that this alleged conflict of interest impaired Brooks' ability to
defend Roach. The state post-conviction court and the district court below conducted
a review of the disbarment record and found that the transcripts were totally devoid
of any evidence or allegation casting doubt on Brooks' ability to represent his client
Roach. At this juncture, we note that counsel for Roach candidly admitted at oral
argument that while no allegations in the disbarment records would cast doubt on
Brooks' representation, the records nevertheless were critical because they would
indicate an alleged impropriety based on the timing of the disbarment proceedings.
The disbarment proceeding was under way but undecided at the time Brooks
represented Roach, but was decided after Roach's trial and while the post-conviction
court was considering the case.
We cannot accept such an argument, totally unsupported by any allegation or
evidence of impropriety, because the effect of such a holding would be to establish a
per se rule of unconstitutional ineffectiveness in any situation in which an attorney
has undertaken representation of a criminal defendant while such an attorney is
under investigation for disbarment. In this case we think there was neither
impropriety nor the appearance of it.
Roach has made the bare allegation that, based upon the totality of the
circumstances, his pleas were involuntary and thus unconstitutional. The South
Carolina Supreme Court on direct review sua sponte considered the issue of the
voluntariness of the guilty pleas and determined that Roach knowingly and
voluntarily entered the guilty pleas. 255 S.E.2d at 801. The state post-conviction
court examined the question and also found that the pleas were voluntary. The
district court conducted its own review of the record of the guilty plea proceeding.
After finding that Roach pleaded guilty freely and voluntarily with a full understanding
of the consequences, the district court determined that the guilty pleas were valid
under Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976),
and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
In his brief, as noted, Roach asserts that based on the totality of the circumstances,
his pleas were involuntary. Apart from this bare allegation, Roach does not direct our
attention to particular circumstances which, if taken cumulatively, would cast doubt
upon the voluntariness of the guilty pleas. Thus, we will assume that Roach bases
his claim on the premise that we should assess the voluntariness of the guilty pleas
by considering the cumulative effect of trial counsel's alleged deficient performance
and Roach's mental deficiencies on Roach's ability to enter a valid guilty plea. Like
the courts before us, we find that Roach's guilty pleas were given knowingly and
voluntarily.
Since we have shown that trial counsel was not deficient in representing Roach at
the guilt phase, we need only discuss whether Roach's mental deficiencies affect the
validity of the guilty pleas.
To show incompetence to plead guilty, a defendant must demonstrate that "his
mental faculties were so impaired ... when he pleaded that he was incapable of full
understanding and appreciation of the charges against him, of comprehending his
constitutional rights and of realizing the consequences of his plea." Shaw v. Martin,
733 F.2d at 314, citing United States v. Truglio, 493 F.2d 574, 578 (4th Cir. 1974). In
Shaw we determined that this standard of competence to plead guilty paralleled the
standard the Supreme Court established in Dusky v. United States, 362 U.S. 402, 80
S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam), for competence to stand trial. See
733 F.2d at 314.
The record shows that Dr. Lockhart was of opinion that Roach was competent, as
was the State Hospital, although Roach was a borderline mental retardate suffering
from an antisocial personality disorder. The sentencing judge posed a series of
questions to counsel and then to Roach to test whether Roach understood the
nature of the charges against him and that, by pleading guilty to those charges,
Roach was giving up his constitutional rights to a trial by jury, confrontation of
accusers, and freedom from self incrimination. The sentencing judge further asked
whether Roach was acting voluntarily in pleading guilty. Roach responded to each of
the questions in the affirmative. We find that the "record establishes unequivocally
that [Roach] was competent to stand trial and thus to plead guilty, and that he
entered informed, intelligent, and voluntary pleas of guilty." Shaw, 733 F.2d at
315.III. CONSTITUTIONAL CHALLENGES
We have considered Roach's several contentions challenging the constitutionality of
the South Carolina Death Penalty Statute and we find each to be without merit.
Roach challenges the statute on both Due Process and Equal Protection grounds.
First, Roach claims that the statute violates the Sixth, Eighth, and Fourteenth
Amendments because it denies to individuals who plead guilty the opportunity for a
jury determination as to the existence of statutory aggravating circumstances and the
ultimate appropriateness of imposing the death penalty. We rejected a similar
argument in Shaw, and we do so here on the ground that " [t]he Constitution does
not give state criminal defendants the right to jury sentencing." Shaw, 733 F.2d at
317; see Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
Roach similarly attacks the statute on Equal Protection grounds by arguing that to
the extent the statute provides for jury sentencing for individuals who request a jury
at the guilt phase, but denies this opportunity to individuals who plead guilty, the
statute creates an arbitrary and capricious classification. Roach further argues that
because this is an arbitrary and capricious classification that implicates a
fundamental interest, the State should be required to show a compelling state
interest for the classification. For the reasons we stated in Shaw, we find that the
South Carolina Death Penalty Statute does not violate the Equal Protection Clause.
Shaw, 733 F.2d at 317; see also Proffitt, 428 U.S. at 252, 96 S. Ct. at 2966 (jury
sentencing is not constitutionally required).
B. Constitutionality of the statute as applied
Roach claims that the statute is unconstitutional as applied because the death
penalty has been imposed disproportionately upon individuals who have committed
aggravated murder on white victims. Roach, who is white, makes no contention that
the death penalty has been applied in a racially discriminatory manner based on the
race of the defendant. Instead, Roach claims that the statute operates in a racially
discriminatory manner because prosecutors are more likely to seek the death
penalty in cases in which the victim is white as opposed to those cases in which the
victim is not white. In this regard, Roach argues that he could prove this claim if he
were afforded the opportunity to retain Dr. Paternoster for the purpose of eliciting
testimony concerning Dr. Paternoster's examination of the post-Gregg application of
the South Carolina Death Penalty Statute. Such inquiry would reveal, as Roach
asserts, that a defendant charged with the aggravated murder of a white, rather than
the aggravated murder of a nonwhite, has greater than three times the statistical
chance that the prosecutor will seek the death penalty for him. In accordance with
our disposition of the same issue in Shaw, we denied in Part II, B, supra, Roach's
request to depose Dr. Paternoster because the evidence would be insufficient to
support Roach's claim that the statute is applied discriminatorily on the basis of the
race of the victim. Since we do not think that such evidence shows a discriminatory
intent on the part of the prosecutors, we reject Roach's claim of racial discrimination
in the application of the death penalty statute in accordance with our consistent
disposition of the issue. See Briley v. Booker, 746 F.2d 225, 227 (4th Cir. 1984);
Shaw, 733 F.2d at 311-14.
Roach has also asserted several interrelated arguments in support of his contention
that the statute was disproportionately applied. In this connection, Roach argues that
the death sentence was constitutionally disproportionate because: (1) the South
Carolina Supreme Court admittedly could not compare the proportionality of Roach's
death sentence; (2) the sentencing authority did not make a specific finding of fact
that Roach intended and personally took human life; and (3) the court made specific
factual findings which precluded the finding that Roach had the requisite criminal
intent necessary for the imposition of the death sentence. We will discuss each of
these contentions in order.
The South Carolina Supreme Court admitted that it was unable to compare Roach's
sentence with similar South Carolina cases because Roach's case was the first case
to be tried under the State's post-Gregg death penalty statute. 255 S.E.2d at 807.
Roach argued that the South Carolina Supreme Court should have indicated which
cases it found dissimilar and should have abstained from ruling the sentence
proportionate until a sufficient number of comparative cases arose. We, like the
courts before us, find this argument unpersuasive. Although the South Carolina
statute requires a comparative proportionality review, S.C.Code Sec. 16-3-25(C)
(3),20 such a comparative review is not constitutionally mandated. Pulley v.
Harris, 465 U.S. 37, ----, 104 S. Ct. 871, 879, 79 L. Ed. 2d 29 (1984). The
Constitution does, however, require some form of meaningful review of death
sentences to guard against arbitrary and inconsistent results. See Jurek v.
Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976); Proffitt v.
Florida, 428 U.S. 242, 258-60, 96 S. Ct. 2960, 2969-70, 49 L. Ed. 2d 913 (1976);
Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859
(1976). Because we are of opinion that the South Carolina Supreme Court
conducted an adequate Constitutional review of the death sentence at 255 S.E.2d, p.
806-07, we reject Roach's habeas corpus claim which is based on a perceived
noncompliance with state law. See Pulley, 104 S. Ct. at 879; Shaw, 733 F.2d at 317;
Barfield v. Harris, 719 F.2d 58, 61-62 (4th Cir. 1983).
Next, Roach claims that his death sentence is disproportionate because the
sentencing court failed to make a specific finding of fact that Roach intended to kill or
personally took human life. He further asserts that the state court made contrary
findings of fact that would have negated the specific criminal intent necessary for
imposing the death sentence. Essentially, Roach now contends that he was not a
triggerman and therefore the death sentence is disproportionate under Enmund v.
Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). In Enmund, the
Supreme Court reversed a death penalty imposed by the State of Florida. 458 U.S.
at 801, 102 S. Ct. at 3378. The defendant in Enmund was charged and sentenced to
death for felony murder accomplished during the course of an armed robbery. The
Court noted that the state court record "supported no more than the inference that
Enmund was the person in the car by the side of the road at the time of the killings,
waiting to help the robbers escape." Id. at 788, 102 S. Ct. at 3372. Since the state
court record did not show that Enmund killed, intended to kill, or otherwise
contemplated that life would be taken, the Supreme Court reversed Enmund's death
sentence. Id. at 801, 102 S. Ct. at 3378.
Roach claims, in effect, that, since the sentencing court did not find specifically that
Roach was a triggerman, Enmund would preclude imposition of the death penalty.
The state court record, however, clearly supports the finding that Roach was a
triggerman. Roach now maintains that on the basis of exculpatory statements he
made and a witness made (whose testimony Roach's petition describes as "going so
poorly"), that he was not a triggerman, there is no evidence in the record that the
sentencing court considered such statements. We are unpersuaded by such an
argument. Furthermore, even if we did not consider the evidence in the record
clearly supporting a finding that Roach was a triggerman, we think the district court
correctly determined that Roach set out on a course of criminal conduct and, " [a]t a
minimum, Roach, unlike Enmund, contemplated that life would be taken." We find
that Roach's death sentence is not invalid under Enmund since the state court record
clearly supports a finding that Roach took life or contemplated that life would be
taken. See Enmund, 458 U.S. at 801, 102 S. Ct. at 3378.
Notwithstanding, Roach claims that the state court's specific findings of fact negate
the criminal intent necessary for imposition of the death penalty. In particular, Roach
argues that instead of finding that Roach specifically intended to kill, the sentencing
court found numerous facts that negated the intent to kill, including: Roach was
under the influence of extreme emotional or mental disturbance at the time of the
offenses; Roach's capacity to conform his conduct to the requirements of the law
was substantially impaired; and Roach acted under duress or the domination of
another person. Given these specific findings, and in the absence of a specific
finding that Roach intended to kill, Roach argues that it would be disproportionate to
impose the death sentence because he was 17 at the time of the offenses, he had
no significant prior criminal history, he is a borderline mental retardate, he was under
the influence of drugs at the time of the offenses, and there was a 50% chance that
his drug abuse was involuntary because of the 50% likelihood that he has a terminal
brain deteriorating disease which destroys brain neurons.
Contrary to Roach's argument, we are of the opinion that the sentencing authority
carefully considered Roach's mental condition in mitigation and concluded that the
balance of aggravating and mitigating circumstances warranted imposition of the
death sentence. Moreover, we do not think that the factfindings of the court negate
the necessary specific intent to kill which, we have found, is a finding clearly
supported by the record. Additionally, to the extent that Roach asserts it would be
disproportionate to impose the death sentence on him because he was involuntarily
under the influence of hallucinogenic drugs, we think that such an assertion is belied
by the record. While Roach maintains that he had a shot of an hallucinogenic drug,
PCP, a fact hardly supported by the evidence, the record does not support a finding
that Roach was in fact hallucinating at the time of the murders; indeed, it negates
that conclusion. The sentencing court was aware of Roach's drug and alcohol use
and fully considered such in finding several mitigating circumstances. As for the
possibility that HD might have caused Roach to abuse substances, we think that this
possibility is adequately disposed of earlier in this opinion. There simply is no
diagnosis that Roach has the Huntington's gene, and no evidence at all that those
who do not have it have involuntary aberrational behavior merely because a parent
may be suffering from the disease.
One final point is Roach's assertion that it would be disproportionate to impose the
death sentence because he may suffer from a brain deteriorating disease which
inevitably causes dementia. For the reasons we previously stated, we do not think
that a positive diagnosis that Roach has the HD gene would preclude imposition of
the death sentence.
Roach argues that based on the totality of the circumstances he was denied a
fundamentally fair trial. In this regard he alleges that he was prejudiced by Dr.
Camp's testimony, by extensive pretrial publicity, by the short length of time (39
days) he had to prepare a defense and case in mitigation, and by a biased
sentencing judge. We disagree. We have considered the proceedings against Roach
as a whole and the entire record on appeal and are of opinion that Roach received a
fair trial in every sense of the word, constitutionally and otherwise.
We accordingly affirm the judgment of the district court.
All stays of execution which may have been issued by us or by the district court shall
be, and they hereby are, dissolved.
AFFIRMED.
1

S.C.Code Sec. 16-3-20(B) provides in part:

Upon conviction or adjudication of guilt of a defendant of murder, the court shall
conduct a separate sentencing hearing to determine whether the defendant should
be sentenced to death or life imprisonment. The proceeding shall be conducted by
the trial judge before the trial jury as soon as practicable after the lapse of twenty-
four hours unless waived by the defendant. If the trial jury has been waived by the
defendant and the State, or if the defendant pleaded guilty, the sentencing
proceeding shall be conducted before the court.
2

Shaw also pleaded guilty as a principal to two charges of murder, as well as pleading
guilty to two charges of conspiracy, to armed robbery, kidnapping, and criminal
sexual conduct. State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979), cert. denied,
444 U.S. 1026, 100 S. Ct. 690, 62 L. Ed. 2d 660, reh. denied, 444 U.S. 1104, 100 S.
Ct. 1073, 62 L. Ed. 2d 791 (1980). The sentencing judge imposed the death penalty
on Shaw, and, on direct review, the South Carolina Supreme Court affirmed the
convictions and sentences. 255 S.E.2d at 806-07. After unsuccessfully pursuing
state post-conviction relief, Shaw sought federal post-conviction relief. We denied
Shaw's petition for habeas corpus relief in Shaw v. Martin, 733 F.2d 304 (4th Cir.
1984), cert. denied, --- U.S. ----, 105 S. Ct. 230, 83 L. Ed. 2d 159, reh. denied, ---
U.S. ----, 105 S. Ct. 555, 83 L. Ed. 2d 441 (1984)
3

Mahaffey was also a participant with Roach and Shaw in the criminal conduct of
October 29, 1977. Pursuant to a plea bargain with the State, Mahaffey testified
against Roach and Shaw in exchange for the State's promise not to seek the death
penalty against him
4

Roach now maintains that he did not shoot either victim, presumably for the purpose
of supporting his claim that it would be disproportionate to impose the death
sentence on a nontriggerman under Enmund v. Florida, 458 U.S. 782, 102 S. Ct.
3368, 73 L. Ed. 2d 1140 (1982). He relies on his statement to Lt. Walter Powell of
the State Law Enforcement Division (SLED), in which he admitted to having been
present at the time of the crimes but denied either raping Miss Hartness or shooting
either victim. Mahaffey's testimony that Roach shot both victims and raped Miss
Hartness, however, is consistent with the version of the criminal episode Roach
related to a friend of Shaw's, Robert Williams, on the evening of the murders.
Williams testified at the hearing as to what Roach had told him about the murders
and, consistent with Mahaffey's version, stated that Roach admitted to having shot
both victims and having raped the girl
5

Roach received a sentence of 30 years' imprisonment on the criminal sexual conduct

charge; a sentence of 5 years' imprisonment on each of the conspiracy charges; a
sentence of 25 years' imprisonment on the armed robbery charge; and no sentence
for the kidnapping charge. Each sentence imposed was to run consecutive to all
other sentences
6

Roach also asserts in his brief that he is entitled to an evidentiary hearing on the
ground that " [a]lthough the State Court made a [sic] express finding of fact, it did so,
in the context of applying an erroneous legal standard." We have not discussed this
issue specifically in the text of the opinion since Roach's brief did not identify which
legal standard was erroneous nor did it indicate which factfinding was thereby
affected. We can only assume that Roach requests an evidentiary hearing on this
basis to redevelop his constitutional claims that the state courts found were without
merit
7

Roach has made several other discovery requests to support his claim that he did
not receive a full and fair hearing in the state courts for the development of his
constitutional claims. For the reasons stated by the district court, deposition of one
Dr. Camp would not enhance Roach's claim for relief. The district court properly
denied the request to depose Dr. Camp, whose trial testimony Roach claims was
perjured and materially inaccurate. As the district court found, Dr. Camp's testimony
did not deny Roach a fair trial because the sentencing judge actually found several
mitigating circumstances based on his testimony and in no way questioned the
credentials of Dr. Camp. The district court also denied Roach's request to depose
Carter to elicit testimony that when Shaw shared a cell with Carter, Shaw told Carter
that he (Shaw) had killed both Taylor and Hartness. The court reasoned that such
proffered testimony, standing alone, would be insufficient to warrant further inquiry.
In any event, the record contains nothing more than the bare allegation of what
Carter's testimony would be. See also note 19, infra
8

Roach also claims the need to depose Medders on the theory that counsel was
ineffective in failing to develop a defense or case in mitigation based on drug-
induced psychosis, discussed in Part II, A, infra
9

We think it significant to note at this point that Roach consistently maintained to trial
counsel that he had only smoked marijuana and drunk beer. Trial counsel became
aware of the Crystal THC injection only after Roach had admitted that he was a
triggerman in both murders. We also note that in the statement Roach gave to SLED
he never mentioned drug use on the day of the murders
10

Development of an underlying drug-induced psychosis defense is offered to support

Roach's claim of ineffective assistance of counsel, discussed in Part II, A, infra, and
the claim of disproportionate application of the death penalty, discussed in Part III,
infra
11

In this regard, Roach has also requested the appointment of a law professor, Dr.
David Baldus, so that Dr. Baldus can review the deposition testimony of Davis and
then testify within his expertise regarding the adequacy and fairhandedness of the
South Carolina Supreme Court's appellate review. Such request was properly denied
by the district court
12

We note in passing that, on a factual basis, in Shaw v. Martin, 733 F.2d 304 (4th Cir.
1984), we rejected Shaw's claim which was based on an even later study by Dr.
Paternoster than the study relied on here
13

See generally F. Baro, et al., Electromyography in Huntington's Disease, 24

Electromyogr. Clin. Neurophysiol. 305 (1984); E. Caine, et al., Huntington's
Dementia, 35 Arch.Gen. Psychiatry 377 (1978); R. Myers, et al., Maternal
Transmission in Huntington's Disease, Lancet 208 (Jan. 29, 1983)
14

See generally S. Folstein, et al., Conduct disorder and affective disorder among the
offspring of patients with Huntington's Disease, 13 Psychological Medicine 45
(1983); S. Folstein, et al., Psychiatric Features of Huntington's Disease: Recent
Approaches and Findings, 2 Psychiatric Developments 193 (1983); M. Pines, In the
Shadow of Huntington's, Science 33 (May 1983)
15
Researchers have focused on many different methods for establishing a
presymptomatic diagnostic technique for HD. Generally, such methods have
included attempts to develop behavioral, biochemical, neurological, and genetic
indices for presymptomatic diagnosis. See generally P. Fedio, et al.,
Neuropsychological Profile of Huntington's Disease: Patients and Those at Risk, 23
Advances in Neurology 239 (1979); H. Klawans, et al., Presymptomatic and Early
Detection in Huntington's Disease, 8 Annals of Neurology 343 (1980); Kolata,
Huntington's Disease Gene Located, 222 Science 913, 914 (Nov. 25, 1983); In the
Shadow of Huntington's, supra, note 14, at 32
16

Electromyography in Huntington's Disease, supra, note 13

17

Mental retardation, antisocial personality disorder, extreme mental disturbance, and

substantially impaired capacity
18

Dr. Still was the treating physician for Roach's mother. He had graduated from
Clemson (B.S. Chemistry), Purdue (M.S. Nutritional Biochemistry), and the Medical
University of South Carolina (M.D.). He was licensed to practice in South Carolina, a
Diplomat in Neurology of the American Board of Psychiatry and Neurology. He has
taught at Purdue, Clemson, and the U.S. Military Academy, and at the time of the
hearing was the Chief of Neurology Service of William S. Hall Psychiatric Institute,
and a Professor of Neuropsychiatry and Behavioral Science of the University of
South Carolina School of Medicine in Columbia. He is one of forty members of the
research group on Huntington's Chorea of the World Foundation of Neurology
19

We note two arguments that we have not addressed in the body of the opinion but
which we will briefly mention here. First, Roach alleges that trial counsel was
deficient in failing to interview Officer Cronise to ascertain the circumstances under
which Roach gave an oral statement to the Officer upon arrest. The district court
correctly found that trial counsel made an appropriate investigation based on
information supplied by Roach concerning his statements to police and based on
independent verification of Roach's story with Lt. Powell of SLED. Moreover,
because the statement was never introduced into evidence, lack of prejudice as well
as lack of merit of the claim is patent
A second argument we think equally without merit is the claim that trial counsel failed
to investigate an alleged statement given by Shaw to a cellmate, one Carter, that
would have been exculpatory as to Roach. Carter was a potential State's witness
whom the State did not call to testify because the credibility of another ex-Shaw
cellmate was successfully attacked by Shaw's trial counsel. Roach alleges that "
[a]ccording to the testimony of John McIntosh, Carter's testimony was essentially the
same as Mr. Laroque's [whose testimony was that Shaw admitted to him entire
responsibility for the shootings]." We have examined the testimony of McIntosh and
find that it does not support the allegation. McIntosh testified that he did not know
what Carter would testify to.
20
S.C.Code Sec. 16-3-25(C) (3) provides that upon direct mandatory review of a death
sentence, the South Carolina Supreme Court shall determine:
(3) Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, concerning both the crime and the defendant.
Id. S.C.Code Sec. 16-3-25(E) further provides:
(E) The court shall include in its decision a reference to those similar cases which it
took into consideration.
Sean Richard Sellers v. Ronald Ward
Before PORFILIO, BRORBY, and MURPHY, Circuit Judges. Steven M. Presson and Robert W.
Jackson, Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellant. William L. Humes, Assistant
Attorney General (W.A. Drew Edmondson, Attorney General, with him on the briefs), Oklahoma City,
OK, for Respondent-Appellee.

In 1986, at the age of sixteen, Appellant Sean Richard Sellers shot and killed three people. He was
subsequently convicted and sentenced to death. He has exercised the full panoply of appeals and
post-conviction remedies available to him in the state of Oklahoma. After a thorough and carefully
considered sixty-nine page review of the issues presented it under 28 U.S.C. §§ 2241 and 2254, the
United States District Court for the Western District of Oklahoma denied relief. Sellers has appealed
that ruling presenting to us eight issues claiming denials of due process of law, effective assistance of
counsel, and a fair trial, which individually and cumulatively resulted in a fundamentally unfair trial
and unconstitutional sentence of death. Although troubled by the extent of uncontroverted clinical
evidence proving Petitioner suffers from Multiple Personality Disorder, now and at the time of the
offenses of conviction, and that the offenses were committed by an “alter” personality, we are
constrained to hold Petitioner has failed to establish grounds for federal habeas corpus relief. Even
though his illness is such that he may be able to prove his factual innocence of those crimes, we
believe he must be left to the avenue of executive clemency to pursue that claim. We are not
persuaded by any of the remaining arguments and, therefore, affirm the judgment of the district court.

I.

Sellers' crimes were committed in two transactions. His first victim was Robert Bower, a
convenience store clerk, who died because Sellers told a friend he “want[ed] to see what it feels like to
kill somebody.” Escaping detection for the first murder, six months later, Sellers killed his mother
and stepfather, each with a single shot to the back of the head, making it appear the couple had been
attacked by an intruder in the middle of the night. Afterward, Sellers told a friend he thought he had
done a good job feigning his innocent discovery of the bodies and described how he stood in his
undershorts while firing the two shots so no blood would spatter and be discovered on his clothing.

At his state trial on three counts of first degree murder, defense counsel portrayed Sellers as the victim
of Satanism and occult worship. He further argued Sellers' addiction to the game, Dungeons and
Dragons, dictated his actions and disconnected him from any consciousness of wrongdoing or
responsibility. A psychiatric expert testified Sean was “legally unconscious” at the time of all three
killings and therefore incapable of forming the intent required of first degree murder.

For the murders of Vonda and Paul Bellofatto, the State alleged and the jury found the killings were
especially heinous, atrocious, or cruel;  that Sellers constituted a continuing threat to society;  and
Sellers knowingly created a great risk of death to more than one person when he committed the
double homicide. To support the death penalty for the murder of Robert Bower, the State alleged
and the jury found the heinous, atrocious, or cruel and continuing threat aggravators.

In the direct appeal of the convictions, Sellers v. State, 809 P.2d 676 (Okla.Crim.App.1991) (Sellers I ),
the Oklahoma Court of Criminal Appeals struck the “heinous, atrocious, or cruel” aggravator because
the trial court failed to instruct the jury to limit the application of this aggravator to murders involving
torture or physical abuse of the victim prior to death. In its disposition of the issues, the appellate
court held the “probability of continuing threat” aggravator to be specific, was not vague as alleged,
and was supported by the evidence.1

In a subsequent appeal from the denial of relief in a state post-conviction proceeding, Sellers v. State,
889 P.2d 895 (Okla.Crim.App.1995) (Sellers II ), Sellers asserted he had recently discovered evidence
that at the time of the crimes he suffered from a childhood brain injury and a mental condition known
as Multiple Personality Disorder (MPD). He also contended he received ineffective assistance of
counsel. The Oklahoma Court of Criminal Appeals rejected both contentions.
The court held, “although evidence of then existing but not yet presented or heard physical brain
damage and MPD presents a valid ground for post-conviction relief under 22 O.S.1991, § 1080(d), it
has been waived under 22 O.S.1991, § 1086.” Sellers II, 889 P.2d at 897. It similarly concluded by
failing to raise it on appeal Sellers waived his argument that statutorily imposed monetary limits on
funding defense expert witnesses precluded his properly exploring his insanity defense. The court
held under § 1086 Sellers also waived his ineffective assistance of trial counsel claim and rejected “on
the merits” his claim appellate counsel was ineffective.

In light of these holdings, the federal district court concluded each claim presented here satisfies
exhaustion principles. Nonetheless, guided by then recently enacted provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), the district court issued a certificate of appealability
only on the issue pertaining to the continuing threat aggravator and denied a certificate on the
remaining issues.

Subsequent to that ruling, the Supreme Court held in Lindh v. Murphy, 521U.S. 320, ----, 117 S.Ct.
2059, 2068, 138 L.Ed.2d 481 (1997), that § 2253(c) of the AEDPA (pertaining to the certificate of
appealability) applies only to cases filed after April 24, 1996. Because the petition in this case was
filed before that date, the certificate of appealability is not a jurisdictional requirement here. See
United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997). We have heretofore granted a
certificate of probable cause and consider all the issues raised by Petitioner.

II.

A.

Petitioner asserts at the time of the murders he was suffering from Multiple Personality Disorder.
He contends the State's misapplication of its own procedure has denied him post-conviction due
process because he has been barred from the opportunity to fully litigate this issue. Sellers urges the
evidence of his brain injury and MPD is material;  could not have been discovered before trial;  is not
cumulative;  and creates a reasonable probability of changing the outcome of the trial. Yet, the
Oklahoma Court of Criminal Appeals erroneously ruled the claim had been waived under Okla. Stat.
tit. 22, § 1086 (1991).2 He argues the federal district court's review was clouded by that
misapprehension.

Sellers asserts both state and federal courts overlooked that he had raised the issue in his original
application for post-conviction relief, not a subsequent application. Thus, while Hopkinson v.
Shillinger, 866 F.2d 1185 (10th Cir.1989), holds that errors in postconviction procedures are not
cognizable federal habeas corpus claims, he asserts the proposition does not exactly address his case.
He argues he is the victim of a judicially created “Catch-22” where state law restricts newly discovered
evidence claims to a post-conviction proceeding, but he has been denied access to that remedy
because he failed to assert the issue of his mental affliction on direct appeal. Consequently, he
complains, the State has no mechanism to address his claim.

The federal district court relied on Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203
(1993), and Hopkinson to reject this contention, reciting the claim does not rise to a constitutional
level because it is collateral to the basis for his incarceration. Nevertheless, in an abundance of
caution, the court proceeded to address whether Sellers had persuasively demonstrated such a
powerful case of actual innocence that it would render his execution unconstitutional. Ultimately it
concluded Sellers had failed to meet this extraordinarily high threshold.

The court examined affidavits previously submitted with Sellers' state post-conviction petition
attesting to his physical and mental state as well as the subject of MPD. Based on that review, the
court stated:

There is significant neurological and psychological evidence that Petitioner suffers from MPD and
some brain damage and a psychologist and psychiatrist who evaluated Petitioner in October of 1992
have opined that since or because Petitioner suffers from MPD, an alter personality likely or must
have been in control at the time the murders were committed, if Petitioner committed them, and that
the alter personality did not understand nor care about the nature of his acts nor whether they were
right or wrong, or that it was likely that the alter did not know the difference between good and bad or
right and wrong. But this evidence does not amount to a truly persuasive demonstration of actual
innocence nor meet the extraordinarily high threshold of showing that a constitutional violation will
occur if Petitioner is executed for a number of reasons.

(emphasis in original) (footnote omitted).

The court explained it rejected the newly discovered evidence because the expert opinions were based
on examinations conducted more than six years after the crimes, and thus the reliability of the
conclusions of which personality was in control was “diminished.” Moreover, the court pointed out
the experts “offered no basis for their opinions that an alter personality must have been in control at
the time of the murders.” Additionally, the court stated there was no evidence Sellers' host
personality was aware of or could not control the alter. Finally, the court noted:

[T]here is overwhelming evidence in the trial record that Petitioner committed the murders and that
the personality in control of Petitioner immediately before, during and after the murders was the
same, was cognizant of what he was doing and understood and appreciated the difference between
right and wrong and the wrongful nature of this conduct.

The court continued, even if Sellers established he could not have discovered the MPD earlier but for
the constitutional violation which prevented the discovery, he failed to show his actual innocence or
that any reasonable juror would not have found even one aggravating circumstance in any of the
murders.

B.

On appeal, Sellers maintains he presented to the district court overwhelming, undisputed evidence
that at the time of his trial and direct appeal the clinical tests for discovering and confirming the
presence of MPD had not been developed. Further, he provided evidence to establish that it usually
takes several years and several incorrect diagnoses to determine a person suffers from MPD. The State
submitted no opposing evidence.

We begin our analysis by noting the record is in a remarkable state. It firmly appears from the
district court's observation Petitioner's claims are not fanciful;  indeed, they are supported by
significant evidence the person facing death for three murders is not the person who committed the
crime. Summarized, the uncontroverted expert affidavit testimony is:  (1) A quantitative
electroencephalogram test (QEEG) disclosed Sellers has brain damage as a result of a closed head
injury suffered as a child;  (2) The QEEG dramatically changed with each of Sellers' alter states,
indicating the presence of at least three alter personalities;  (3) An Evoked Potential Test (EPT), which
relies upon biological signals from the body and cannot be falsified by the patient, showed multiple
objective changes in brain function and reliably confirmed the QEEG;  (4) A second series of tests and
extensive interviews were conducted by a different physician who actually spoke to two of Sellers' alter
personalities;  (5) Sellers suffered from MPD at the time of the killings;  (6) One of Sellers' alter
personalities “must have been in executive control of [Sellers'] person or body” at those times;  (7)
There was only a limited awareness of MPD in the mental health community in 1987 when Sellers was
tried;  and (8) MPD is a “hidden disease” which generally takes seven years to confirm. In light of
this evidence, the conundrum with which we are presented, however, is whether this claim of MPD
based innocence can survive the threshold requirements of federal habeas corpus to render it
justiciable.

This is a unique and profound case because it presents intertwined issues of habeas jurisprudence.
Unwinding the knot into which the matter is tied provides us with the key to its resolution. Before
setting ourselves to that task, however, we are constrained to observe the question of actual innocence
predicated upon the actions of multiple personalities has a twist that affords no parallel that we have
found.
Given the unusual context of this case, we believe other courts have begged the issue by ruling the
proof of Sellers' guilt is “overwhelming.” Indeed, if believed by a jury, Petitioner's evidence of the
culpability of an alter personality renders the person known as Sean Sellers actually innocent. Yet,
we cannot reach that point because of the limited nature of federal habeas corpus and the precedent
by which we are guided.

We must begin, as did the district court, with consideration of how claims of actual innocence fall
within the scope of federal habeas corpus. It is settled that:

Claims of actual innocence based on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation occurring in the underlying
state criminal proceeding.

This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution-not to correct errors of fact.

Herrera, 506 U.S. at 400, 113 S.Ct. at 860 (citations omitted) (emphasis added). “Few rulings would
be more disruptive of our federal system than to provide for federal habeas review of freestanding
claims of actual innocence.” Id. at 401, 113 S.Ct. at 861. As the Court noted, however,

This is not to say that our habeas jurisprudence casts a blind eye toward innocence. In a series of
cases culminating with Sawyer v. Whitley, ․we have held that a petitioner otherwise subject to
defenses of abusive or successive use of the writ may have his federal constitutional claim considered
on the merits if he makes a proper showing of actual innocence. This rule, or fundamental
miscarriage of justice exception, is grounded in the “equitable discretion” of habeas courts to see that
federal constitutional errors do not result in the incarceration of innocent persons․ But this body of
our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional
claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.

Id. at 404, 113 S.Ct. at 862. To pass through this gateway, petitioner must present

evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the merits of his underlying claims.

[Moreover] the evidence must establish sufficient doubt about his guilt to justify the conclusion that
his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.

Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995) (emphasis added) (italics
in original). Substantial claims that errors of constitutional dimension have caused the conviction of
an innocent person are “extremely rare.” Id. at 324, 115 S.Ct. at 865-66. To succeed upon a
miscarriage of justice plea, a petitioner must show constitutional error “ ‘probably’ resulted in the
conviction of one who was actually innocent.” Id. at 327, 115 S.Ct. at 867, referring to Murray v.
Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986). When the contention of
actual innocence is predicated upon newly discovered evidence, the petitioner's burden of proof is to
demonstrate “it is more likely than not that no reasonable juror would have convicted him in the light
of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. at 867. Actual innocence does not mean
merely that the new evidence creates a reasonable doubt of the petitioner's guilt but that “no
reasonable juror would have found the defendant guilty had that evidence been produced at trial.”
Id.
Thus, the rule by which this case must be governed has several dimensions. First, the claim of
innocence grounded in MPD itself is not a basis for federal habeas corpus no matter how convincing
the evidence.3 Second, the claim of innocence is merely the means by which an otherwise barred
constitutional error affecting the fairness of the petitioner's trial can be heard. Third, to allow a
habeas court to reach that constitutional error, the claim of innocence must be of the magnitude that
we can say no reasonable juror would have convicted Sean Sellers had it been presented at trial.
These are very high barriers to Petitioner's success.

The first hurdle Petitioner must overcome is that his principal constitutional argument does not
revolve about trial error but about matters that occurred subsequently. He maintains the Sellers II
court mistakenly barred him from airing his evidence of MPD because of its erroneous interpretation
of an Oklahoma statute relating to post-conviction review. See Okla. Stat. tit. 22, § 1086.
Assuming the contention is correct and the Oklahoma court mistakenly construed the statute, the
error is one of state law not cognizable in habeas corpus because “federal habeas corpus relief does not
lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606
(1990);  Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996);  Steele v. Young, 11 F.3d 1518, 1524 (10th
Cir.1993). Although Petitioner indeed finds himself in a judicially created “Catch 22,” the dilemma is
not one we can reach through the limited access provided by our jurisdiction.

Petitioner is further hampered by the fact no constitutional provision requires a state to grant post-
conviction review. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539
(1987). Moreover, because the constitutional error he raises focuses only on the State's post-
conviction remedy and not the judgment which provides the basis for his incarceration, it states no
cognizable federal habeas claim. Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.1996);  Steele, 11 F.3d
at 1524;  Hopkinson, 866 F.2d at 1218-19. Thus, although Petitioner has presented substantial
credible evidence that now and at the time of his trial he suffers from a mental illness that may have
bearing upon his factual innocence of the crimes for which he stands convicted, he does not cross the
threshold barrier to federal habeas corpus. Even if the constitutional basis of his claim had affected
the jury's verdict thereby permitting him to escape the barrier presented by a collateral attack, we
could not say he has satisfied the high burden of showing no reasonable juror would convict him on
the basis of the evidence he has presented.

C.

The nature of his newly discovered evidence, in the form of affidavits, already has been called into
question. “In the new trial context, motions based solely upon affidavits are disfavored because the
affiants' statements are obtained without the benefit of cross-examination and an opportunity to make
credibility determinations.” Herrera, 506 U.S. at 417, 113 S.Ct. at 869. Although the evidence
presented in the affidavits of the psychiatric experts is clear, strong, and supportive, it has not been
tested in the crucible of cross-examination. Nonetheless, the medical theory espoused is unique and,
as the experts have established, virtually unknown at the time of Sellers' trial. It may justly be
presumed that lay people would be skeptical of the theory. Thus, without benefit of a full exploration
of the opinions of the experts by cross-examination, it is exceedingly difficult to believe not one juror
would disregard the opinions expressed and vote to convict.

We are not unmoved by the Petitioner's dilemma. Nor are we unconvinced that given an
opportunity by a state court he could not cast doubt on the propriety of the sentence he faces. Yet,
granting him relief on these grounds is beyond the present scope of federal habeas corpus. He is not
completely without recourse, however, because he apparently still has access to Executive Clemency.
See Okla. Const. art. VI, § 10;  Okla. Stat. tit. 21, § 701.11a (Supp.1990). Nevertheless, we hold
the district court did not err in its disposition of this issue.

III.

Petitioner next contends Oklahoma's “continuing threat” aggravating circumstance is

unconstitutionally vague and overbroad and therefore unconstitutionally applied. Subsequent to the
filing of briefs in this case, we held to the contrary in Nguyen v. Reynolds, 131 F.3d 1340 (10th
Cir.1997). That resolution binds us here. United States v. Foster, 104 F.3d 1228, 1229 (10th
Cir.1997).

IV.

At the penalty stage of the trial, the defense sought to present the testimony of a law professor who,
according to the offer of proof, would testify that juveniles were developmentally different from adults.
The state judge refused to allow the testimony. Petitioner now contends the refusal amounted to a
denial of his right to present mitigating evidence contrary to the provisions of Okla. Stat. tit. 21, §
701.10 (1981),4 and Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982).
Reminding that Eddings holds that “youth is more than a chronological fact,” id. at 115, 102 S.Ct. at
877, Petitioner maintains the error takes on constitutional proportions. He contends the State took
every opportunity to capitalize on the absence of evidence pertaining to youth. Indeed, the district
attorney argued to the jury:

He's only 17, but when he picked up that .357 he became a man. And he walked out and he blew
Robert Paul Bower away. And when he picked up that .44 Special, he became a man again. And he
walked in and he blew Lee and Vonda Bellofatto into another world. He's acted like a man, he's
going to have to stand up here like a man.

Thus, Petitioner maintains, the State was permitted to argue about his adulthood, but the defense was
not permitted to counter that argument with expert testimony. He asserts this prohibition
eviscerates the use of age as a mitigating factor by removing any meaning from the concept. He adds
that the error was compounded when the jury was instructed it was to determine the mitigating effect
of his age. Therefore, Petitioner concludes the state court denied him due process in excluding all of
the testimony with the observation most people know the difference between youths and adults.

Relying in part upon Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973
(1978) ( plurality), and Eddings, 455 U.S. at 104, 102 S.Ct. at 871, the district court observed a
sentencer must not be precluded from considering the defendant's character or the circumstances of
the offense that the defendant proffers in mitigation. Citing Blystone v. Pennsylvania, 494 U.S. 299,
304-05, 110 S.Ct. 1078, 1082-83, 108 L.Ed.2d 255 (1990), the court noted the type of evidence
required by the Constitution to be presented to the sentencer is that pertaining to a defendant's
character, record or background, and the circumstances of the offense. With those principles as
guidelines, the court reviewed Petitioner's offer of proof at trial and discovered defense counsel, in his
own words, intended the testimony show Oklahoma's history of not executing juveniles, that most of
the “civilized nations” with the exception of the United States and “a few other nations” do not allow
the execution of a person under the age of eighteen;  and, that although there are international treaties
banning the execution of minors, the United States has not ratified them. The professor also would
have stated a civilized society would prohibit the execution of a person who was under the age of
eighteen at the time the crime was committed. The notion that juveniles are developmentally
different was integrated into many arguments and was, according to trial counsel, “ a factor that
should be considered in totally abolishing the death penalty for juveniles.”

From this record, the district court gleaned the proffered testimony is “best characterized as a policy
argument as to why the death penalty for juveniles should be abolished-an argument appropriately
directed to the Oklahoma Legislature.” More importantly, the court noted, the proffered testimony
was not “relevant mitigating evidence of the character and record or background of the defendant and
the circumstances of the offense.” The court observed the developmental difference between adults
and juveniles “is a fact within the knowledge which jurors possess in common with other persons.”
Therefore, the court reasoned when this knowledge is coupled with the state court's instruction that
the jury could employ its general knowledge in arriving at the sentence, the mitigating effect of the
developmental differences was placed before the jury, citing Graham v. Collins, 506 U.S. 461, 475, 113
S.Ct. 892, 901-02, 122 L.Ed.2d 260 (1993). We agree with that analysis and cannot add to it in any
intelligent manner. We see no error in this ruling.

V.
 Petitioner next maintains the state trial court unconstitutionally limited his voir dire of the jury on
the subject of the death penalty. The court sustained the State's objection to defense counsel's asking
prospective jurors whether the juror would consider the youth of the defendant as a mitigating factor,
making it impossible, he contends, to carefully exercise his peremptory challenges. In contrast, he
complains the trial court permitted the prosecutor to ask jurors whether they would be offended to
have “[me] as district attorney seeking the death penalty for a 17-year old․” Further, when the
prosecutor told the jury it could find there were no mitigating factors, it underscored the State's
argument that youth is not a proper mitigating consideration. Petitioner urges the court's refusal to
permit his line of inquiry is contrary to Eddings. He argues if the Constitution allows voir dire on
racial attitudes in a case involving an interracial incident, Turner v. Murray, 476 U.S. 28, 37, 106 S.Ct.
1683, 1688-89, 90 L.Ed.2d 27 (1986), surely asking a juror whether he has any bias or attitude toward
youth would be appropriate. Attitudes toward youth, he urges, could be as fixed as attitudes toward
always or never imposing the death penalty. Petitioner argues:  “a person on trial for his life has a
constitutional right to know whether a prospective juror will follow the law.” As youth is a mitigating
factor, it was “especially important for Sean Sellers to know which potential jurors would be skeptical
of using youth as a mitigator.” Petitioner states the prosecutor knew what defense counsel was
seeking and improperly blocked this line of questions. By prohibiting counsel from asking these
questions, the state trial court violated Petitioner's Sixth Amendment right to the effective assistance
of counsel.

In rejecting this contention, the federal district court found the voir dire “constitutionally adequate”
because jurors were asked individually and collectively whether they would consider life
imprisonment or whether they would automatically impose a death sentence if Sellers were found
guilty. The court observed Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d
841 (1985), sets forth the standard for excluding jurors for cause:  “That standard is whether the
juror's views would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” The fundamental purpose of the inquiry is whether
the juror will follow the law. Mackall v. Murray, 109 F.3d 957, 963 (4th Cir.1997). In United States
v. McCullah, 76 F.3d 1087, 1114 (10th Cir.1996), we also held a trial court is not “required ․to allow
inquiry into each juror's views as to specific mitigating factors as long as the voir dire was adequate to
detect those in the venire who would automatically vote for the death penalty.”

In this case, defense counsel attempted to inquire into whether prospective jurors would find
specific facts mitigating. This effort is not equatable to whether a juror would refuse to consider
mitigation of any kind. As noted by the district court, a juror of that mind-set would be excusable for
cause, but what Petitioner was attempting to do was to ferret out information that would aid in the
exercise of his peremptory challenges. So long as the voir dire is adequate to detect jurors who could
not be impartial, a trial court is not required by the Constitution to grant such a searching inquiry.
Id. at 1114. Indeed, the breadth of questions eliciting jurors' opinions about the death penalty itself
must lie within the discretion of the trial judge. In this instance, we agree with the district court the
voir dire was adequate to serve the constitutional mandate of providing an impartial jury.

VI.

Petitioner contends the Confrontation Clause was violated when the trial judge closed an area of
inquiry to defense counsel during cross-examination of the State's psychological expert witness, Dr.
Herman Jones. Defense counsel attempted to question whether Dr. Jones would change his opinion
of Sellers' state of mind after consideration of certain of Sellers' specific past writings. The district
court sustained the State's objection because the court had already held the documents contained
inadmissible hearsay;  therefore, the testimony would also be inadmissible. Counsel made an offer
of proof that the writings, which Dr. Jones had not examined, would bear directly on the basis of the
expert's opinion.

The federal district court rejected this claim, concluding Petitioner's rights to due process and to
compel favorable testimony were not violated. Habeas relief is not available on this ground unless
the Petitioner can show his whole trial was rendered fundamentally unfair by the limitation of the
cross-examination. See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40
L.Ed.2d 431 (1974). As the district court observed, review of this issue in the context of federal
habeas corpus is an inquiry which turns on the materiality of the excluded evidence to the
presentation of the defense. Matthews v. Price, 83 F.3d 328, 332 (10th Cir.1996). The question
devolves to whether the ruling deprived Sellers of “an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (italics in original).

As did the district court, we have reviewed the record of the direct and cross-examination of Dr. Jones,
and we see nothing in the limitation of examination which meets the required tests. Because the
opinion expressed by Dr. Jones was diametrically opposed to that of Petitioner's expert, Dr. Krimsky,
the purpose for the cross-examination was to call into question the basis upon which Dr. Jones arrived
at his diagnosis. Although Dr. Jones stated having access to Sellers' writings would aid in his
analysis, we are unsure whether the writings would affect his opinion. Moreover, defense counsel
conducted a thorough examination of Dr. Jones' evaluation of Sellers' condition and the various points
on which Dr. Jones and Dr. Krimsky differed. Even assuming, for the sake of review, the materiality
of the writings, we simply cannot say the record discloses the denial of an effective cross-examination
of the State's expert. Nor do we believe the restriction on cross-examination had a substantial or
direct influence on the verdicts.

VII.

Because Oklahoma law permits introduction of any mitigating evidence, Petitioner urges it was error
for the trial court to prevent his witness, Ms. Betsey Payne, the executive secretary of the Oklahoma
Pardon and Parole Board, from testifying that a person sentenced to life imprisonment could not be
considered for parole for at least fifteen calendar years and is not eligible to receive good time or other
credits. Left with the decision then to sentence him to death or to life, believing that meant he would
be out in a short time, the jury was deprived of vital mitigating evidence to inform its choice.
Petitioner relies on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994),
which held in some circumstances states may decide whether to inform the jury about the parole
eligibility status of a life sentence.

Once again, our consideration of this issue is foreclosed by Nguyen v. Reynolds, 131 F.3d 1340.
There, following the Teague doctrine, we held Simmons inapplicable to death sentences imposed prior
to its issuance. Inasmuch as the penalty in this case was decreed prior to Simmons, we must abide
by that holding.

VIII.

Petitioner contends the state district attorney made comments during closing argument which he
believes violated his due process rights and unfairly minimized the jury's sense of responsibility for
the imposition of the death penalty. Petitioner states the district attorney “kept referring to himself
in the third person, and was sending a strong signal to the jury that it was the district attorney who
approved of the death penalty, and that many hurdles had to be jumped before a capital murder trial
could ever occur.” Petitioner also observes, “he even suggested to the jury that had there been only
one incident, he would not have sought the death penalty.” Indeed, the prosecutor told the jury, had
it not been for the multiple crimes, “You probably wouldn't be here right now.”

The district court found “in the context of the entire final argument” the statements were “not
reasonably susceptible to an interpretation that the district attorney or some other authority, not the
jury, was the final or true arbiter of [Sellers'] punishment.” Thus, the court concluded, unlike those
in Caldwell v. Mississippi, 472 U.S. 320, 340-41, 105 S.Ct. 2633, 2645-46, 86 L.Ed.2d 231 (1985), the
prosecutor's statements in this case did not render the death penalty verdicts unreliable. We agree.

Viewing the record with charity, we note the prosecutor's hyperbole may be regarded as colorful. It
is not, however, the stuff from which anyone could perceive an offer to share the burden of the
ultimate decisions in this case. Thus, we agree with the district court that the district attorney did
not run afoul of Caldwell. We conclude there is no merit in Petitioner's argument. See Hopkinson,
888 F.2d at 1295 n. 5.

IX.

Finally, Petitioner contends he was denied his right to the effective assistance of counsel. In a double
faceted attack, Petitioner argues he was denied effective assistance of trial counsel because his
attorney did not discover the evidence of his brain injury and MPD. Alternatively, Petitioner argues
his attorney “woefully underemphasized the best evidence for an insanity verdict” by choosing to focus
on his Satanism and cultism rather than his inability to distinguish right from wrong. He concludes
by asserting he was prejudiced by the state statute which limited him to $750 with which to obtain
psychiatric assistance.5

In light of Petitioner's own evidence that MPD could not have been discovered at the time of his
trial, his Sixth Amendment argument based on trial counsel's failure to discover the defense sounds
with a hollow ring, notwithstanding the spin put on it by the Oklahoma court. Having provided us
with an uncontroverted record that the illness could not have been discovered at the time of trial, we
will not accept Petitioner's postulate here.

The district court undertook a thorough examination of the record in light of the contention trial
counsel failed to properly assert a “traditional” insanity defense and concluded counsel's strategy was
not unsound, relying upon Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80
L.Ed.2d 674 (1984). The court observed the state of expert evidence at the time of trial undercut the
value of the insanity defense because at best the evidence showed Sellers was not “mentally ․aware,
not appreciating, not registering what was happening” at the time of the killings of his mother and
stepfather. Moreover, the district court found the jury ultimately considered a “traditional
temporary insanity defense” and concluded the evidence of Sellers' involvement with Dungeons and
Dragons and Satanism “buttressed rather than detracted from the insanity defense” despite the
alleged novelty of that approach. Thus, the court held Petitioner was not prejudiced by his trial
counsel's failure to focus on the traditional defense. The court concluded its confidence in the
outcome of the trial was not undermined.

Claims of ineffective counsel are mixed questions of law and fact which we review de novo. See
Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir.1997). To prevail on his claim of ineffective trial
counsel, Petitioner must show the performance of counsel was deficient in so serious a manner that
counsel was not providing the level of representation required by the Sixth Amendment and the
deficient performance was so prejudicial that he was deprived of a fair trial with a reliable result.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Courts may address the performance and prejudice
components in any order but need not address both if a petitioner fails to make a sufficient showing of
one. Id. at 697, 104 S.Ct. at 2069-70. Focusing upon the contention here that trial counsel's
performance was deficient, we are guided by the principle that to be constitutionally deficient
counsel's performance must have been completely unreasonable, not merely wrong. Hoxsie v. Kerby
108 F.3d 1239, 1246 (10th Cir.1997).

With these thoughts in mind, we agree with the conclusion reached by the district court. Although
the benefits of hindsight make it easy to suggest how better issues could have been raised, we believe it
is clear trial counsel functioned appropriately within the ambit of available evidence and his
performance was not unreasonable. We hold, therefore, Petitioner has failed to satisfy his burden of
persuasion. Moreover, having rested his claim of ineffective appellate counsel on failure to assert
trial counsel was incompetent for not raising the MPD defense, we believe our conclusions here
summarily dispatch Petitioner's argument on that score.

Finally, Petitioner argues here, as he did in the district court, the limitation on available funds for
psychiatric assistance deprived him of the opportunity to have further significant tests performed
which the evidence of his brain damage should have indicated. The district court carefully analyzed
this issue and found, first, there was no evidence in the record reflecting the defense expert did not
consider the possibility of Petitioner's organic brain disorder or further specific testing was required
but not performed because of inadequate funding. Moreover, Petitioner admitted routine
psychological examinations given to criminal defendants did not include such tests. The court
carefully observed, however, even assuming the expert was inadequate in his clinical observations and
failed to require necessary testing, there is nothing in the record suggesting trial counsel was aware of
the deficiency. When coupled with the Petitioner's lack of “outward manifestations” of organic brain
damage or other evidence of psychological disorder, the routine exclusion of certain testing and the
presumption of reasonable professionalism to be accorded counsel, the district court failed to find a
Sixth Amendment violation based on the suggested lack of funding. Unable to add to the careful
analysis of the district court, we simply concur in its reasoning and conclusions. Concluding counsel
was not deficient, we need not examine whether Petitioner was prejudiced by his acts.

X.

Petitioner states our refusal to grant his motion to file a brief in excess of seventy-five pages deprived
him of the opportunity to brief other issues. Believing the number of issues he was able to address is
as much a function of counsel's loquaciousness as it is our limitation on the number of pages available
for discourse, we have nonetheless examined the record of the additional matters presented to the
district court and the decisions made on those issues. Suffice to say that examination leads us to
conclude the district court did not err in any respect. The judgment of the district court is
AFFIRMED.

FOOTNOTES

1. The Court of Criminal Appeals stated:Furthermore, the evidence presented at trial amply
supported the jury's finding of this circumstance. Prior to killing the convenience store clerk,
appellant showed Howard [his friend] the gun he was carrying and told him, “I want to see what it
feels like to kill somebody.” So he did. In the following months, appellant bragged of his conduct
to friends and co-workers. Then, six months after the first homicide, he shot and killed his own
parents. He took precautions to make sure that his parents were dead and to make sure no one had
heard the shots. He committed the murders in his under shorts so that no blood could spatter on his
clothes. He intended to use Howard as an alibi and conceived an elaborate plan to “discover” his
parents dead in bed. The repeated incidences of violence and the calloused manner of appellant's
actions in this case support finding this aggravating circumstance in all three homicides.Sellers v.
State, 809 P.2d 676, 690 (Okla.Crim.App.1991) (Sellers I ).

2. That section entitled “Subsequent Application” is part of the Post-Conviction Procedure Act and
states, in part:All grounds for relief ․must be raised in his original, supplemental or amended
application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and
intelligently waived in the proceeding that resulted in the conviction or sentence or in any other
proceeding the applicant has taken to secure relief may not be the basis for a subsequent application
unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the prior application.(emphasis added).

3. Interestingly, the claim is grounds for post-conviction relief under Oklahoma law. See Sellers v.
State, 889 P.2d 895, 897 (Okla.Crim.App.1995) (Sellers II).

4. That section states:Upon conviction ․of guilt of a defendant of murder in the first degree, the
court shall conduct a separate sentencing proceeding to determine whether the defendant should be
sentenced to death, life imprisonment without parole or life imprisonment.․In the sentencing
proceeding, evidence may be presented as to any mitigating circumstances or as to any of the
aggravating circumstances enumerated in Section 701.7 et seq. of this title.(italics added).

5. Although Petitioner also advances a somewhat unclear argument that the Oklahoma Court of
Criminal Appeals incorrectly ruled on his ineffective counsel claim, we see that contention presented
to us in the posture of an invitation to review the propriety of the state court's holding. We decline
the invitation as beyond the scope of 28 U.S.C. § 2254.
PORFILIO, Circuit Judge.

Scott Allen Hain v. Mike Mullin

Steven M. Presson and Robert W. Jackson of Jackson & Presson, P.C., Norman,
OK, for Petitioner-Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma and Robert L. Whittaker,
Assistant Attorney General, Criminal Division, Oklahoma City, OK, for Respondent-
Appellee.
David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United
States Attorney, Tulsa, Oklahoma, for the United States. Susan M. Otto, Federal
Public Defender, Western District of Oklahoma, Oklahoma City, OK, amicus curiae.
Before TACHA, Chief Judge, EBEL, KELLY, BRISCOE, LUCERO, MURPHY,
HARTZ, O'BRIEN, and McCONNELL, Circuit Judges.1
BRISCOE, Circuit Judge.

Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for
capital murder, filed these appeals challenging the district court's denial of his
request for funding under 21 U.S.C. § 848(q) (8) and the district court's denial of his
request for a stay of execution pending resolution of the § 848(q) (8) issue. We
conclude that Hain's execution by the State of Oklahoma on April 3, 2003, has
rendered these appeals moot. With respect to both appeals, we vacate the panel
decisions previously entered and remand to the district court with directions to
vacate the orders that led to these appeals. We also vacate the court's order
granting rehearing en banc.
Hain was convicted in Oklahoma state court of two counts of first degree murder and
sentenced to death. After exhausting his state court remedies, he filed a 28 U.S.C. §
2254 petition for federal habeas relief. Acting pursuant to 21 U.S.C. § 848(q) (4) (B),
the district court appointed counsel to represent Hain. The court subsequently
denied the request for habeas relief. We affirmed the district court's decision. See
Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002). The Supreme Court denied Hain's
petition for writ of certiorari. See Hain v. Mullin, ___ U.S. ___, 123 S. Ct. 993, 154 L.
Ed. 2d 916 (2003).
Hain's federally-appointed counsel filed a motion with the district court requesting
"confirmation" that Hain was entitled to federally-appointed and funded counsel to
represent him in his state clemency proceedings pursuant to § 848(q) (8). The court
denied the motion, concluding that § 848(q) (8) did not encompass representation of
a state prisoner in state clemency proceedings. Hain filed a timely notice of appeal
from that order (case No. 03-5038). Hain then filed a separate motion in district court
for a stay of execution pending his appeal of the § 848(q) (8) issue. The district court
denied the stay and Hain filed a separate notice of appeal from that denial (case No.
03-5049).
The panel unanimously affirmed the district court's denial of Hain's motion for a stay
of execution, and a panel majority affirmed the district court's denial of funding under
§ 848(q) (8), with Judge Lucero dissenting. Hain filed an emergency petition for
panel rehearing of both the denial of the stay and the affirmance of the § 848(q) (8)
ruling. A divided panel denied the emergency petition for rehearing on the § 848(q)
(8) issue and granted a stay to permit en banc review of the § 848(q) (8) issue.
Judge Murphy dissented from the grant of the stay. Hain also had filed a petition for
rehearing en banc on the § 848(q) (8) issue. A majority of the active judges granted
en banc review of both the § 848(q) (8) issue and the stay, and voted not to lift the
stay pending the ruling of the en banc court. Respondent immediately filed an
application to vacate the stay with the Circuit Justice. The Supreme Court, upon
referral by the Circuit Justice, granted the application and Hain was executed on
April 3, 2003. The en banc court issued an order to show cause why these appeals
should not be dismissed as moot.
The threshold question we must address is whether the Supreme Court's grant of
respondent's application to vacate the stay of execution divested us of jurisdiction.
"There is no question as to the power of a Circuit Justice [, or the Court itself,] to
dissolve a stay entered by a court of appeals." Commodity Futures Trading Comm'n
v. British American Commodity Options Corp., 434 U.S. 1316, 1319, 98 S. Ct. 10, 54
L. Ed. 2d 28 (1977); Petition of Johnson, 72 S. Ct. 1028, 1031-32, 96 L. Ed. 1377
(1952) (discussing power of Circuit Justice to stay execution of judgment). The
exercise of that power does not, however, constitute a decision on the merits. See
Messer v. Kemp, 831 F.2d 946, 957 (11th Cir. 1987). Nor does it necessarily deprive
a lower court of jurisdiction. Cf. Johnson, 72 S. Ct. at 1031-32 (suggesting that stay
of execution of district court judgment could be entered by Circuit Justice pending
resolution of case by court of appeals); Messer, 831 F.2d at 957 (holding that
Supreme Court's stay of execution did not divest court of appeals of jurisdiction to
consider petitioner's appeal en banc). Because no final judgment had been entered
by this court on the merits at the time the Supreme Court vacated the stay of
execution, we conclude we retain jurisdiction over these appeals.
Having now received and reviewed the responses to our order to show cause, we
conclude that Hain's execution has rendered these appeals moot. "`A case is moot
when the issues presented are no longer "live" or the parties lack a legally
cognizable interest in the outcome.'" Citizens for Responsible Gov't State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (quoting City of
Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S. Ct. 1382, 146 L. Ed. 2d 265
(2000)); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.
Ct. 1055, 137 L. Ed. 2d 170 (1997) ("To qualify as a case fit for federal-court
adjudication, an actual controversy must be extant at all stages of review, not merely
at the time the complaint is filed.") (internal quotation omitted). It is obvious, under
the circumstances presented here, that Hain can no longer benefit from a ruling in
his favor by the en banc court in either pending appeal. See generally Friends of the
Earth, Inc. v. Laidlaw Env. Servs., Inc., 528 U.S. 167, 192, 120 S. Ct. 693, 145 L. Ed.
2d 610 (2000) (noting that courts are not licensed "to retain jurisdiction over cases in
which ... a plaintiff pursuing a nonsurviving claim has died"); Lewis v. Cont'l Bank
Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990) (noting that the
party seeking relief "must have suffered, or be threatened with, an actual injury ...
likely to be redressed by a favorable judicial decision.").
Hain's counsel suggests that the appeal of the § 848(q) (8) issue falls within the
"capable of repetition, yet evading review" exception to the mootness doctrine. We
disagree. In order for this exception to apply, two prerequisites must be satisfied: (1)
the duration of the challenged action must be too short to be fully litigated prior to its
cessation or expiration; and (2) there must be a reasonable expectation that the
same complaining party will be subjected to the same action again. United States v.
Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002). Here, in light of Hain's
execution, it is apparent that he will not again confront the issue of whether § 848(q)
(8) provides federally-appointed and funded counsel at a state clemency proceeding.
Thus, the second prerequisite for application of the exception has not been met.
Respondent, who has consistently denied an interest in the § 848(q) (8) issue,
asserts that the appeal is not moot because Hain's counsel "did in fact expend funds
and time in representing" Hain "in a bid for clemency before the Oklahoma Pardon
and Parole Board." Resp. Br. at 6. Thus, respondent argues, " [w]hether [counsel]
should be compensated and reimbursed from the federal fisc for representing" Hain
"at the state clemency hearing is still a case or controversy justifying exercise of
continuing jurisdiction by this Court." Id. Although it appears uncontroverted that
Hain's counsel represented him during the state clemency proceedings, Hain's
counsel does not yet have a personal stake in the appeal of the § 848(q) (8) issue. In
particular, Hain's counsel has not sought compensation from the district court for the
time expended on Hain's behalf, nor has he sought to intervene in this appeal.
The court's order granting rehearing en banc is VACATED and counsel are excused
from attendance on Tuesday, May 6, 2003. With respect to both appeals, we
VACATE the panel decisions previously entered and REMAND to the district court
with directions to vacate the orders that led to these appeals.
1

Judge Seymour and Judge Henry are recused in these matters

Deepak @ wireless v. State of Maharashtra

Facts

The genesis of the case was that on the date of occurrence, namely, 13/14.06.2004, P.W.10 A.P.I.,
attached to police station Pachod received a wireless message from P.S.I. Dhakne, who was on
patrol duty, that some thieves had entered in that area. P.W.10, therefore, proceeded to the police
station and on the way he met P.S.I. Dhakne and others and in the enquiry it came to light that the
thieves had gone to the adjoining area.

They started combing operation in that area and while they were going towards Aurangabad they
noticed three persons fleeing on a motorcycle in high speed. The team led by P.W.10 followed those
persons and that after a distance of chase those persons abandoned the motorcycle in the place
called Jamkhed crossroad and started running in the open field.

The police party chased them and could apprehend two out of the three persons. Out of the two
persons who were apprehended, one was the appellant. The suspects were brought to the police
station and in the meantime, P.W.10 received a telephone call that a theft had taken place in the
house of one Vasanta Bhumre.
 On reaching the house of Vasanta Bhumre, P.W.10, noticed the wife of Vasanta Bhumre lying in the
middle room in a pool of blood and his brother Sharad was found dead in the adjacent passage.
P.W.10 arranged for sending the injured wife of P.W.2-Vasanta Bhumre to the hospital in the police
vehicle and while going to the hospital P.W.9-Mirabai informed P.W.10 that about four to five
assailants wearing pant and shirt caused injuries to her as well as the deceased Sharad and fled away
from the scene of occurrence in a motorcycle. After admitting P.W.9 in the hospital, P.W.10 said to
have returned back to the scene of occurrence and sent the dead body for postmortem after holding
the inquest. P.W.10, based on the investigation stated to have learnt that the appellant and his
accomplices, namely, Rahul Bhosle, Ravi Shinde, one Balaji and another unknown person (the last
two were absconding) indulged in the dacoity in the house of P.W.2 on the night of 13/14.06.2004.

The appellant alone was proceeded for the offences under Sections 395, 396 and 397 of IPC, since
the other two were juvenile, they were dealt with separately. The prosecution examined as many as
10 witnesses on its side apart from the material objects and chemical analysis report in support of
the case. The Trial Court by its judgment dated 09.05.2005 convicted the appellant and imposed the
punishment, as above, and the same was confirmed by the High Court, aggrieved by the same the
appellant has come before this Court.

The learned counsel for the State in his submissions by retracing the sequence of events, which
ultimately resulted in the arrest of accused persons, contended that P.W.9 was an eye-witness to
the occurrence who after hearing the cries of her brother-in-law, namely, the deceased Sharad in
the early hours of 13/14.06.2004 at about 2 to 2.30 a.m. noticed that the appellant and the other
accused were brutally beating the deceased with knife, iron rod and wooden club and when she
started shouting for help, the accused persons ran towards her and caused injuries by knife as well
as by other weapons on her face and other parts of her body.

The learned counsel, therefore, contended that since P.W.9 before the infliction of injuries upon her
was able to view the brutal attack on her brother-in-law by the accused and, thereafter, such
persons attacked the witness herself, she was able to identify the appellant without any hesitation in
the Court. As far as the number of persons who participated in the crime is concerned, here again
learned counsel would draw support from the version of P.W.9 herself in her cross-examination
where she stated in uncontroverted terms that five individuals were involved in the crime at that
point of time. As far as stealing of articles is concerned, the learned counsel by referring to the
evidence of P.W.2 contended that he was able to specify the articles stolen while committing the
dacoity in his house by way of cash as well as jewels removed from the body of P.W.9.

As far as the non-production of weapons and the stolen articles are concerned, the Trial Court has
noted that due to inability of the police to arrest the two absconding accused, recoveries of those
items were not placed before the Court. The learned counsel for the State by relying upon the said
conclusion of the Trial Court contended that the said conclusion was well justified and, therefore, on
that ground the conviction cannot be interfered with. The learned counsel also pointed out that the
evidence of P.W.8 whose motorcycle was stolen in the early hours of 14.06.2004, which was
recovered and handed over to him, supported the case of the prosecution in finding the appellant
guilty of the offence

JUDGEMENT

The Trial Court by its judgment dated 09.05.2005 convicted the appellant and imposed the
punishment, as stated below and the same was confirmed by the High Court, aggrieved by the same
the appellant has come before this Court.
The appellant was convicted and imposed with sentences for offences falling under Sections
395,396 and 397 of IPC. When we examine the said offences alleged and found proved against the
appellant, it will have to be stated that when a person is involved in an offence of theft of higher
magnitude, then it becomes dacoity and when dacoity is committed with murder and also results in
causing grievous hurt to others, it becomes robbery punishable under Sections 395, 396 and 397 of
IPC. In other words, when the offence of theft is committed conjointly by five or more persons, it
becomes dacoity and such dacoity by those persons also results in commission of murder as well as
causing of grievous hurt to the victims, it results in an offence of robbery.

A reading of Sections 395, 396 and 397 of IPC makes the position clear that by virtue of the conjoint
effort of the accused while indulging in the said offence makes every one of them deemed to have
committed the offence of dacoity and robbery. In the result, when such offences of dacoity and
robbery are committed, the same result in the death of a person or hurt or wrongful restrain or
creating fear of instant death or instant hurt or instant wrongful restraint. In substance, in order to
find a person guilty of offences committed under Sections 395, 396 and 397 of IPC, his participation
along with a group of five or more persons indulging in robbery and in that process commits murder
and also attempts to cause death or grievous hurt with deadly weapons would be sufficient. Use of a
knife in the course of commission of such a crime has always been held to be use of a deadly
weapon.

This appeal is directed against the judgment of the High Court of Bombay Bench at Aurangabad
dated 25.04.2007 by which the High Court dismissed the Criminal Appeal No.403 of 2005 and
confirmed the conviction and sentence imposed on the appellant for offences under Sections
395, 396and 397 of IPC. The appellant was imposed with punishment of rigorous imprisonment of
five years and a fine of Rs.500/- in default to undergo further three years rigorous imprisonment for
offence under Section 395 of IPC, rigorous imprisonment for life and fine of Rs.500/- for offence
under Section 396of IPC and further rigorous imprisonment for three years and fine of Rs.500/- in
default to undergo one year rigorous imprisonment for the offence under Section 397 of IPC.

Rafiq Ahmed v. State of Uttar Pradesh, Criminal Appeal No. 656 of 2005

FACTS

All the five accused, namely, Rafiq Ahmad, Ahsan, Imamuddin, Arun Kumar and Yashwant Singh,
according to the prosecution, in the intervening night of 30th September, 1977 and 1st October,
1977 committed dacoity in Ambassador Car No.UPS 7293 belonging to Rafiq Ahmad.

While the car was going on the pucca road from Nehtaur to Dhampur within the jurisdiction of thana
Nehtaur, the accused had committed the murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish
Babu and thereafter thrown his body in a sugarcane field of one Ikrar Ahmad situated in Village
Kashmiri, thana Nehtaur with the intention of screening themselves from punishment for
committing any offence. Shri Krishna Garg, uncle of the deceased was carrying on the wholesale
business of sugar, Khandsari, flour, food grains etc. under the name of M/s.

Badri Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur (Bijnor). This firm had branches in the
name of `Garg Brothers'. The firm used to sell the above products on credit to the customers at
Dhampur, Nagina, Sherkot, Sheohara, Haldaur and Nehtaur and the deceased, Jagdish Prasad, used
to go to Nehtaur every Friday to realize money from them. On Friday, 30th September, 1977, also he
left for Nehtaur to collect money. Ordinarily, he used to return home between 9.00 p.m. and 10.00
p.m. with collections roughly upto `10,000/-.

Though, Jagdish Prasad, on that day also had collected more than ` 8,000/- from the customers, but
he did not return home that night. The next morning, Shri Krishna Garg sent his Munim, Ramesh
Chandra to Nehtaur to enquire about Jagdish Prasad. The Munim returned and disclosed to Shri
Krishna Garg the above facts. After arrival of the Munim, Shri Krishna Garg left Dhampur for Nehtaur
along with Pyare Lal, Surendra Kumar, Har Kishan and Kamlesh to enquire about Jagdish Prasad.

From the enquiries, it came to light that at about 8.00 p.m., the deceased Jagdish Prasad had
occupied a taxi, in which some persons were already sitting, at the Agency Chauraha, Nehtaur. The
matter was reported and after making an entry in the GD on 1st October, 1977 at 2.30 p.m., SI K.L.
Verma started investigation and interrogated a number of persons including Shri Krishna Garg and
Pyare Lal.

During the course of the investigation, the accused Rafiq Ahmad also made a confessional statement
before the investigating officer in presence of Surendra Kumar and Pyare Lal that the dead body of
the deceased was lying in the sugarcane fields near village Kashmiri. The body of the deceased was,
thus, recovered and identified by Pyare Lal. SI K.L Verma (PW9) prepared the inquest report and the
body was subjected to post mortem by Dr. R.B. Saxena (PW8), the Medical Officer.

JUDGEMENT

I Jawant singh III additionaL Sessions Judge, Bijnour hereby charge you Rafiq, Ahsan, Imamuddin,
Arun Kumar and Yashwant Singh accused as follows: -

That you in the night of 30-9-77 committed dacoity in Taxi No. UPS 7273 while it was running on
Nehtaur to Dhampur road and that in the commission of said dacoity murder was committed by you
of one jagdish prashad and that you thereby committed an offence punishable u/s 396 IPC and
within my cognizance And I hereby direct that you be tried by me on the said charge.

his charge came to be amended by the learned Trial Court and the amended charge read as under:

I Jaswant singh III additional Sessions Judge, Bijnour hereby charge you Rafiq, Ahsan, Imamuddin,
Arun Kumar and Yashwant Singh accused as follows: -

Firstly that you along with one another during the night of 30-9-77 and 1-10-77 committed dacoity in
Ambassador Car No. UPS 7293 belonging to rafiq accused while it was going from Nehtaur to
Dhampur on the pucca road within the circle of P.S. Nahtaur District Bijnaur and that in the
commission of the said dacoity, murder of jagdish prashad was committed by you and that you
thereby committed an offence punishable under Section 396 IPC and within the cognizance of this
court.

Secondly - that you along with one another during the night of 30-09-77 and 1-10-77 in the area of
village Kashmiri P.S. Nehtaur Dist.

Bijnore knowing or having reason to believe that an offence U/s 396 IPC punishable with death or
imprisonment for life has been committed did cause evidence of the said offence to disappear by
secreting the dead body of jagdish prashad in the sugar cane field of Ikrar Ahmad with the intention
of screening yourself from legal punishment and thereby committed an offence punishable u/s
201 IPCand with the cognizance of this court.

The Trial Court, by a detailed judgment dated 17th August, 1981, came to the conclusion that Rafiq
Ahmad was guilty of charge under Sections 302 and 201 IPC under which the accused was liable for
conviction and punishment. The Court further held that Ahsan was guilty of a charge under Section
411 IPC but acquitted him and the three other accused, namely, Imamuddin, Arun Kumar and
Yashwant Singh under Section 396 IPC by giving them benefit of doubt.

The Court awarded rigorous imprisonment for life to Rafiq Ahmad under Section 302 IPC and seven
years rigorous imprisonment under Section 201 IPC. Both the sentences were ordered to run
concurrently. The Trial Court ordered the accused Ahsan to undergo rigorous imprisonment for a
period of one year and to pay a fine of Rs.500/- under Section 411, IPC and in default to undergo
imprisonment for further period of six months.

Shyam Behari v. State of U.P., Criminal Appeal No. 72 of 1956

FACTS

The appellant had been charged inter alia with having committed an offence under section
396, Indian Penal Code in that he on 10/11th day of September, 1954, about two or three gharis
before sunrise in village Banni Purwa, hamlet of Banni, police station Kotwali, Kheri, along with other
persons committed dacoity in the house of Mendai and that in the commission of such dacoity,
murder was committed by one of the members. The learned Sessions Judge found that the
appellant, and the others, had entered the house of Mendai with intent to commit a robbery but
were foiled in the attempt owing to Mendai and Ganga having raised a hue and cry. The residents of
Banni Purwa and the adjoining 'abadi' of village Banni arrived on the scene and the appellant and his
companions, without collecting any booty, ran away from the house of Mendai. They were chased
by Mendai and Ganga and when they were crossing the ditch of Pipra Farm, Mendai caught hold of
one dacoit. Another dacoit who was identified by several witnesses as the appellant thereupon fired
a pistol shot which hit Mendai and Mendai fell to the ground and was removed to the hospital
where he died. The further movement of the appellant thereafter need not be recounted here. The
learned Sessions Judge as also the High Court recorded concurrent findings of fact that the appellant
shot and killed Mendai to secure the release of one of his companions and also to ensure their safe
retreat.

JUDGEMENT

These concurrent findings of fact ware enough to dispose of the appeal of the appellant before the
High Court. He, however, raised a question of law, viz., that he may be guilty under section 395 but
not under section 396, Indian Penal Code because any murder committed by the dacoits during their
fight when they were running away without any booty could not be treated as murder committed in
the commission of the dacoity. A distinction was sought to be drawn between a case where the
dacoits were escaping with the booty and the case where the dacoits were running away without
any booty. It was argued that it would be an offence of dacoity with murder when the dacoits, after
committing robbery, were running away with the booty and in order to escape with the booty they
committed the murder and that it would not be a dacoity with murder when dacoits had no. booty
with them but in order to avoid being caught they committed the murder. The High Court negatived
this contention and held that section 396, Indian Penal Code would be attracted even where an
attempt had been made to commit dacoity and a murder was committed when the dacoits were
trying to make a safe retreat. The conviction of the appellant under section 396, Indian Penal
Code was therefore confirmed along with the sentence of death passed upon him by the learned
Sessions Judge. On an application made by the appellant for Leave to Appeal to this Court, the High
Court granted to him the necessary certificate under Art. 134 (1) (c) of the Constitution.

Section 396, Indian Penal Code provides that "if any one of five of more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine".

Dacoity is defined in section 391, Indian Penal as under :

" When five or more persons conjointly commit or attempt to commit a robbery, or where the whole
number of persons conjointly committing or attempting to commit a robbery, and persons present
and aiding such commission or attempt, amount to five or more every person so committing,
attempting or aiding, is said to commit dacoity"

There was, in the circumstances of the present case an attempt to commit robbery by the appellant
and his companions though in fact no. robbery was committed by reason of the. hue and cry raised
by Mendai and Ganga. The dacoits took to their heels without collecting any booty when they found
that the villagers from Banni Purwa and Banni came immediately to the aid of Mendai and Ganga.

The prosecution, however, contended that the appellant was guilty not only of the offence
under section 395 Indian Penal Code but also under section 396, Indian Penal Code because, the
appellant and his companions were conjointly committing the dacoity and the appellant who was
the one of the members committed the murder of Mendai in so committing the dacoity. If the
transaction which commenced with the entry of the appellant and his companions in the house of
Mendai continued right up to the time that the appellant shot at Mendai while crossing the ditch of
the Pipra Farm the murder of Mendai committed by the appellant could certainly be said to have
been committed by the appellant in so committing the dacoity.
Raghubir Singh v. State of Bihar, [AIR 1987 SC 149]

The petitioners-accused were arrested by the Security Police Patrol Party in the State of Bihar
while attempting to cross Indo-Nepal border. One of them was identified Simranjit Singh Mann-a
dismissed Police Officer who had gone underground after an order of detention under the National
Security Act was passed against him.

As a result of 803 the search, currency notes and a number of documents andother articles were
seized from the petitioners. It is alleged that one of the accused also offered a bribe to the police
officers. The police registered a first information report and commenced investigation. A
chargesheet was filed on 11th December, 1985 before judicial Magistrate First Class against the
five accused-petitioners for offences under ss. 121-A, 123, 124-A, 153A, 165-A, 505 and 120-B of
the Indian Penal Code. However, before the chargesheet was filed, the accused-petitioner,
Simranjit Singh Mann was servedwith an order of detention under the National Security Act and
sent to Bhagalpur jail. The other four accused were also detained under the National Security Act
at Bhagalpur.
All the petitioners moved the Judicial Magistrate for bail in the aforesaid criminal case claiming to
be released under proviso (a) of s. 167(2) of the Code of Criminal Procedure. They were granted
bail but, they could not be released because of their detention under the National Security Act.
While so, the surety for all the five accused filed a petition requesting the Magistrate to discharge
him from suretyship as he did not want to continue to be the surety of the accused persons. The
Magistrate discharged the surety from suretyship and issued formal warrants of arrest under s.
444(2) of the Code of Criminal Procedure. At this stage, the High Court of Punjab and Haryana
made an order quashing the detention of Simranjit Singh Mann.

The Magistrate took cognizance of the case under ss. 121A, 123, 124A, 153A, 165A and 120B of
the Indian Penal Code on December 18, 1985. Thereafter the investigating Officer filed a petition
requesting expeditious trial as the case was one of special importance. All the petitioners except
Simranjit Singh Mann filed fresh bail bonds. The said bail bonds were rejected on December 20,
1985 as the surety could not name either the accused persons or their fathers. The accused moved
another petition for recalling the order dated December 20, 1985 and accepting the same person
as surety. This petition was rejected on the ground that the earlier order could not be
reviewed.The High Court also rejected the bail applications of these accused personsThe learned
Magistrate took cognizance of the case under section 121A, 123, 124A, 153A, 165A and 120-B Indian
Penal Code on December 18, 1985.

State vs Siddarth Vashisth & Manu Sharma ... on 13 March, 2000

FACTS

In Crl.R.596/2000, the State prays to set aside the discharge of accused No.1 Manu Sharma, accused
No.2 Vikas Yadav, accused No.3 Amardeep Singh Gill, accused No.4 Alok Khanna and accused No.5
Amit Jhingan under Section 120-B read with Section 302 IPC as well as the discharge of A-2 to A-5 for
offence under Section 302/34 IPC. A further prayer is to set aside the discharge of accused A-4, A-5
and A-6 Shyam Sunder Sharma, who have not been charged for commission of any of the offences.
Crl.R.47/2001 has been filed by accused No.2 Vikas Yadav with a prayer to discharge him of the
offences under Sections 201, 120-B and 34 IPC. Revision petition No.46/2001 has been filed by (SIC)
& Tony Gill with a prayer to discharge him of the offences under Sections 201 and 120-B IPC.
Revision petition No.619/2000 has been filed by accused No.12 Raja Chopra with a prayer to
discharge him for the offence under Section 212 IPC.
Facts giving rise to the filing of the present revision petition is interesting and worth to be noted
briefly. It is stated that on 30.4.1999 the respondent along with 3 (three) other accused went to
Tamarind Cafe of Kutub Collonade, Delhi in which the deceased Ms. Jessica Lal worked as a Bar
Attendant. A firing incident took place resulting the death of Ms. Jessica Lal Involving the
respondent and 3 accused. It is stated that immediately after the occurrence the respondent along
with 2 accused ran away from the place of occurrence by driving Tata Sierra bearing registration No.
MP-04-V-2634. Mehrauli Police Station Delhi registered a case being FIR Case No. 287/99
under sections 302, 212, 201, 120-B and 34 IPC (popularly know as Jessica Lal murdered case). In
course of Investigation accused Manu Sharma was arrested on 6.5.1999 and accused Amerdeep
Singh Gill @ Tony and Alok Khanna was arrested on 5.5.1999. On their being interrogated, it has
come to light that the present respondent along with 3 accused were responsible in
killing Jessica Lal on the fateful day. However, the respondent could not be apprehended as he was
absconding. It appear from the police report that the present respondent also filed an application
dated 15.5.1999 under section 438 of the Code praying for pre-arrest bail before the Court of
Additional District and Session Judge, New Delhi, subsequently withdrawn on 17.5.1999. On 15-5-99
respondent also filed a Bail Application registered as criminal Misc. (B) Cases No. 34/99
under section 438 of the Code for granting pre-arrest bail before the Court of District and Sessions
Judge, Manipur East stating inter alia that he is running a business at Thangal Bazar and also residing
at Thangal Bazar which subsequently proved to be false. By the impugned order dated 15-5-99, the
learned District & Sessions judge, Manipur East Shri Th. Sudhir Singh (under suspension) granted
pre-arrest bail for a period of 2(two) months. Hence the petition.

JUDGEMENT

Accused No.1 Sidharth Vashisht @ Manu Sharma was charged by the Trial Court
under Section302 IPC for the murder of deceased Jesicca Lal, 201 read with Section 120B IPC for
conspiracy for removal of his vehicle from the spot, Section 27 of the Arms Act and Section 201 read
with Section34 IPC for the replacement of the glass pane of Tata Safari. The State had prayed that he
should be charged under Section 120B read with Section 302 IPC also as there was a conspiracy to
commit the murder of deceased Jesicca Lal.

Accused No.2 Vikas Yadav was charged by the Trial Court under Section 201 read
with Section120B IPC in respect of the conspiracy and removal of the vehicle of A-1 from the spot
and 201 read with Section 34 IPC regarding replacement of the glass pane of the vehicle of A-1. The
State had urged before this Court for framing charges against him under Section 302 read
with Section 120BIPC and Section 302 read with Section 34 IPC for the murder of deceased Jesicca
Lal and also under Section 212 IPC for harbouring A-1 out of the Cafe after the incident. This accused
had filed Crl. Revision petition No.47/2001 praying for his discharge for all the offences. In view of
the reasons mentioned in this order, the prayer of the State, for framing additional charges against
him as stated above is declined. The Crl. Revision Petition filed by the petitioner challenging the
framing of the charge under Section 201 read with Section 34 in regard to the replacement of glass
pan of the vehicle of A-1 is allowed and he is discharged for the commission of the said offence.

Accused No.3 Amarjit Singh @ Tony Gill was charged by the Trial Court under Section 201 read
with Section 120B IPC in regard to conspiracy and removal of the vehicle of A-1 from the place of
incident. The State had prayed for framing charges under Section 302 read
with Section 120B, 302read with Section 34 IPC against him for the murder of deceased Jesicca Lal
and also under Section212 of the IPC for harbouring A-1 out of the Cafe. This petitioner had filed Crl.
Revision petition No.46/2001 challenging the framing of the charge under Section 201/120B IPC
against him.
In view of the reasons mentioned in this order, the prayer of the state for framing additional charges
against him is declined. The prayer of the petitioner for discharging him for the offence
under Section201 read with Section 120B IPC is also declinest. His Crl. Revision Petition stands
dismissed.

Accused No.4 Alok Khanna was discharged by Trial Court of all the offences. The State in its Crl.
revision petition No.596/2000 has challenged the (SIC) order passed by the learned Trial Judge and
has prayed for framing charges against him under Section 302 read with Section 120B IPC
and Section302 read with Section 34 IPC for the murder of Jesicca Lal. The State also prays that he
be charged for offences under Section 201 read with Section 120B IPC for the conspiracy and
removal of the Tata Safari Car of A-1 from the spot. It is also prayed that he be charged
under Section 212 IPC also for harbouring A-1 by way of escorting him out of cafe after the incident.