Slack, Antonio v. McDaniel, Warden, et al. (04/26/2000)

By: Mark Wilkinson, Medill News Service

Questions presented

If a person's petition for federal habeas corpus under 28 U.S.C. sec. 2254 is dismissed for failure to exhaust state remedies and he subsequently exhausts his state remedies and refiles the petition, are claims included within that petition that were not included within his initial habeas applications to be considered?

For reargument: (1) Do the provisions of AEDPA, specifically including 28 U.S.C. §2253(c) and 28 U.S.C. §2244(b), control the proceedings on appeal? (2) If AEDPA does control the proceedings on appeal, may a certificate of appealabilty issue under 28 U.S.C. §2253(c)?

Brief

In May of 1990, Antonio Slack, 19, was sentenced to two consecutive life terms for second degree murder after being convicted of shooting 12-year-old Alana Holmes at his friends apartment.

Slack argued at trial that he was playing with a gun when he accidentally fired a shot, hitting Holmes in the neck.

The friend, Kamal Bey, testified for the prosecution at trial after confirming Slack's version of the incident.

Slack's direct appeal to the Nevada Supreme Court failed in November 1991.

He then filed his first habeas petition with the U.S. District Court of Nevada, raising federal constitutional issues.

Slack made three points; that there was insufficient evidence to support his conviction, that the trial court improperly allowed the jury to hear prejudicial evidence regarding his alleged sexual relationship with the underage victim, and that the jury was incorrectly instructed about reasonable doubt. For

Also, Slack argued that he received ineffective counsel before and during his trial because his attorneys failed to raise the Franklin violation, which forbids state courts from basing their decisions on the testimony of witnesses who struck a deal with the state.

The petition was dismissed ""without prejudice to exhaust claims"" less than three months after it was filed because Slack had failed to exhaust his remedies in Nevada courts.

In July of 1992, Slack's state habeas corpus petition was denied by the Nevada courts.

Three years later, Slack filed a second habeas petition. Only this time, Slack added four claims relating to the instructions given to the jury, the failure of his counsel to have the introduction of sexual misconduct excluded from trial and the ineffective assistance of appellate counsel.

Once again the federal court rejected his petition, claiming that he was abusing the writ by failing to allege all grounds for relief in the first petition.

In July 1998, the 9th Circuit Court of Appeals denied Slacks petition for a leave to appeal.

The U.S. Supreme Court granted certiorari on February 22, 1999, and allowed the Rutherford Institute to file an amicus brief on behalf of Slack.

On Oct. 18, 1999, two weeks after the case was argued orally before the Court, the Court restored the case to the calendar for reargument, and directed the parties to address the two questions presented above.

On April 26, 2000, the Court, divided 7-2, reversed, holding for Slack that even though his federal habeas petition was dismissed so he could pursue his case back in state courts, he would not be barred from raising new issues when he returns to federal court for habeas relief.

To the extent that the opinion might appear to allow prisoners to return repeatedly to state court and inject undue delay into the collateral review process, Justice Anthony Kennedy wrote for the majority, the problem can be countered under the states' power to impose proper procedural bars and the federal courts' powers to prevent duplicative or unnecessary litigation.

Justices Antonin Scalia and Clarence Thomas dissented.