*1 Aсcordingly, regarding the firearm. no dou of actual evidence must either direct show exist, light jeopardy even in of this ap- ble issues that warrant an vindictiveness or facts $405,- in (quotations circuit’s decision United States v. Id. at 1299 pearance such.” of omitted). Currency, F.3d 1210 evi- 089.23 U.S. Cir. Hernandez has offered no 1994), reh’g on the amended and shows actual vindictiveness dence that Therefore, U.S.-, (1995), granted, for Her- cert. part prosecution. Therefore, succeed, he claim to must show 133 L.Ed.2d
nandez’s in finding appearance an of not abuse its discretion facts warrant request hearing denying Hernandez’s for vindictiveness. jeopardy. of double on issue pre Ninth The law of the Circuit of finding appearance vindictive cludes CONCLUSION government’s de the basis of the ness on Because the evidence was insufficient following losing- prosecute cision to support using for or Hernandez’s conviction prosecution conduct. See for unrelated during in relation to a Martinez, carrying a firearm 785 F.2d United States v. crime, drug trafficking we reverse his convic- (9th Cir.1986). Martinez, we 668-70 re- tion I. Because Hernandez’s on Count prosecutor, with a if a faced held maining arguments appeal provide no on ba- brings an additional disappointing result reversing vacating or his conviction sis charge same nu which “arises out firearm, possession being a felon original operative as the cleus of facts II. affirm his conviction on Count charge, presumption of vindictiveness however, If, charge is the second raised. part, part, AFFIRMED REVERSED first, prеsumption unrelated to the resentencing. and REMANDED (quotations Id. at 669 does not arise.” omitted). The resolution and citation legitimate prosecution “is
an unrelated prosecutorial Id. at 670. consideration.” charges brought against Her present action were based on
nandez April on 1989. Be events that occurred prosecution, which the unsuccessful cause prompted Hernandez contends MORAN, Richard Allan Petitioner- action, to those out of events unrelated arose Appellant, occurring do not find an April on Accordingly, appearance vindictiveness. McDANIEL, E.K. denying Warden not err the district court did , Respondent-Appellee. vindictive motion to dismiss for Hernandez’s prosecution. No. 96-99007. Appeals, Jeopardy United Stаtes Court
6. Double Ninth Circuit. claims that the district Hernandez hearing held a issue court should have March Argued and Submitted sentencing, jeopardy at the time of double March Decided firearm “forfeiture” of the because The district court’s garage. in the found hearing is reviewed of a motion for a
denial Montoya, for an abuse discretion. at 1291. presented no evidence
Hernandez a forfeiture government ever held judicial, proceeding, either administrative *3 Pescetta,
Michael Federal Public Defend- er, NV, Vegas, Las for Richard Allan Moran. Sarnowski, Deputy Attorney David Gener- al, Division, City, Criminal Justice Carson NV, for E.K. McDaniel. *4 FARRIS,
Before: PREGERSON THOMPSON, Judges. Circuit OPINION THOMPSON, Judge. DAVID R. Circuit OVERVIEW Richard Allan Moran has been sentenced to death. The Nevada Court dis- missed, procedural grounds, on state his sec- post-conviction ond state relief. The United States District for the District of Nevada then denied Moran’s sec- ond corpus petition federal habeas and his application stay for a of execution. The dis- trict court denied on the grounds that federal review was barred the state court’s dismissal of Moran’s federal independent constitutional claims on and ade- quate grounds, and because Moran’s petition was an abuse of the writ. The district court issued a certificate of probable permit appeal cause to Moran to to so, this court. He has done and asks us to stay his execution now scheduled 12:01 30,1996. a.m. on March jurisdiction We have under 28 U.S.C. § 1291. We affirm the district court’s denial corpus petition deny Moran’s habeas application his a of execution.
I
PROCEDURAL BACKGROUND
August 2,1984,
On
entered
Red
Pearl
shot
Saloon and
and killed the bartend-
patron.
er
a
Moran then stole the cash
register,
purse,
the bartender’s
racks
that,
money
had
place
seen the bartender
cupboard.
under a
He then
fire to
set
attempt
saloon in
to burn it down. Sever-
hearing
competency
later,
to
to
his ex-wife.
determine
shot and killed
days
al
counsel,
rights to
murder,
unsuccessfully waive his constitutional
During this
witnesses,
process, to
compulsory
confront
attempted suicide.
trial,
jury
peers,
and his
public
to the murders while
Moran confessed
privilege against
self-incrimination.
recovering
his suicide at-
hospital,
from
(9th Cir.1992).
Godinez,
charged
counts of
tempt. He was
with two
this error was not cured
We determined that
deadly weapon for the
with use of a
murder
hearing because the
post-conviction
and,
case,
separate
in a
with
murders
saloon
applied
wrong
standard to
state court
deadly
with use of a
count of murder
one
competency. Id. at 265-66.
evaluate Moran’s
of his ex-wife. He
weapon for the murder
“Competency waive constitution-
held:
robbery
charged with two
also was
counts
rights requires
higher
al
level of mental
deadly weapon
and with first
with use of
functioning
required
trial.”
than that
to stand
consoli-
degree
The two eases were
arson.
at
Because we reversed the
Id.
court.
purposes
for all
before the state
dated
ground,
on
we decided we would
guilty,
initially pleading not
After
by Moran
the other issues raised
not “reach
guilty
discharged
pleaded
counsel
appeal.”
264 n.
*5
three-judge
A
state court
all counts.
granted
Supreme
The
Court
certiorari and
to death for each of the
sentenced Moran
Moran,
v.
509 U.S.
reversed. Godinez
af-
Supreme
The
Court
murders.
401-03,
2680, 2688, 125L.Ed.2d 321
for the saloon
the death sentence
firmed
(1993).
Supreme
held that
The
Court
murders,
for
vacated the death sentence
but
compe
to determine
standards are
same
ex-wife, and remand-
the murder of Moran’s
tency
competency
stand trial and
to waive
to
impose a life sentence
to
ed with directions
397-99,
guilty. Id.
plead
and
at
counsel
parole.
possibility
without
also stated a defen
S.Ct. at 2686. The Court
(1987).
State,
138, 734
Nev.
P.2d
only
competent to
his
be
waive
dant must nоt
seeking
unsuccessfully
post-convic-
After
must
know
rights,
or her
but such waiver
courts,
from the Nevada state
tion relief
voluntary.
Id. at
S.Ct.
ing and
ha-
first federal
for
Moran filed his
us
remanded the case to
at 2687. The Court
corpus
in the
States Dis-
beas
relief
United
proceedings.
for further
for the District of Nevada. The
trict Court
briefing in
further
parties
submitted
petition.
Moran’s
district court denied
In
Supreme
remand.
light of the
Court’s
court.
appeal
filed an
to this
Moran then
subsequent briefing,
asserted
Moran’s
brief,
(1)
Moran raised the follow-
opening
In
mentally
arguments:
he was not
only two
(1)
plea
ing arguments:
and waiver of
rights
his waiver
competent waive his
and
to
freely
voluntarily en-
(2)
counsel were not
and
voluntary,
counsel
and
his trial
was not
heavily
at
medicated
because
by failing
investigate
tei’ed
and
was ineffective
(2)
guilty plea,
he received
the time of his
possible
all
defenses.
research
of counsel because
ineffective assistance
light
of the
reexamining the issues
After
any
investigate or raise
counsel failed to
decision, we concluded that
Supreme Court’s
(3)
defenses,
support the
evidence did not
hearing addressing Mor-
post-conviction
(4)
found,
sen-
circumstances
process
cured the due
competency had
an’s
process
tencing
Moran’s due
panel violated
knowing
his waiver was
violation and that
refusing
rights by
to find his intoxicated
Godinez, 57 F.3d
voluntary. Moran v.
circumstance,
mitigating
constituted
Cir.1994).
(9th
ad-
We also
698-99
(5)
panel violated his due
rejected
as-
Moran’s ineffective
dressed
consolidаting
ac-
process rights by
the two
concluded
of counsel claim. We
sistance
penalty hearing.
tions
failing
ineffective
counsel was not
Moran’s
competent to
investigate
he was
whether
denial of
“to
court’s
reversed
district
We
counsel,
forego the
plead guilty, waive
con-
corpus.
for habeas
Moran’s
mitigating evidence” and
presentation of
deprived
cluded the state trial
possible
failing
investigate
research all
by failing to hold a
process rights
of his due
Judge Pregerson
Supreme
opportunity
defenses. Id. at 699-700.
Court an
to address
dissenting opinion.
and filed a
presented
dissented
arguments
Moran’s
to that court.1
majority opinion
Neither
nor the dis-
petitions
pending
While Moran’s
be
arguments
sent did we address the other
Supreme
fore the Nevada
Court and the
presented
in his
Moran had
initial brief
court,
Moran filed
this court a
appeal
to this court in his
from the district
motion to recall our mandate which issued
petition.
court’s denial of his first habeas
following
filing
opinion
of our
OnNovem
30, 1994,
peti-
On December
Moran filed a
ber
and amended
June
rehearing
suggestion
tion
and a
re-
for
for
Cir.1994),
Godinez,
1. In through his second federal Moran contends: counsels failure to raise claims one five (1) guilty plea was invalid the because sen- appellate constitutes ineffective assistance of tencing panel allegedly guilty only found him counsel; (7) Supreme Court failed to murder; (2) degree the use of the three- adequate conduct an review because it did not judge sentencing panel to determine his sentence mitigаting consider his intoxication as a circum- unconstitutional; (3) appar- the was random and stance, alleged did not address the unconstitu- ently aggravating motiveless factor is unconstitu- tionality three-judge sentencing panel, of the vague, tionally proof shifts burden to Mor- sentencing panel’s alleged not consider the an, provides imposing no rational basis for guilty degree to failure der; find Moran mur- right against penalty, death and violated his self- (8) the absence of articulable standards incrimination; (4) support the facts do Supreme under which the Nevada Court reviews presenting finding factor death others; (5) sentences renders its review unconstitu- danger of death to tional; (9) penalty the death cru- failed to find Moran's constitutes intoxication сircumstance; (6) mitigating appellate to be a punishment. el and unusual Crabb, on Patterson Moran’s reliance
II
Cir.1990)
(7th
misplaced.
Moran’s
“unreviewed” claim
C.The District Court’s
of Prob-
Certificate
sentencing panel
violаted his consti
able Cause
rights by failing
mitigat
tutional
to consider
argues
Moran first
required
we are
ing evidence of his intoxicated state. Moran
grant
stay
of execution because the district
misrepresents
the record. The
probable
coui't issued a certificate of
cause.
panel did consider his evidence of intoxi
By issuing
certificate,
argues,
however,
sentencing panel,
cation. The
implicitly
district court
determined that a
not find
to be a mitigating
this evidence
stay
justified.
disagree.
particular
factor
case.2 The sentenc
ing panel
required
was not
all evi
find
all,
First of
the district
Mor
court denied
by
dence submitted Moran to mitigating
be
request
stay
an’s
for a
of execution. More
long
sentencing panel
factors so
as the
con
over,
stay
pending disposi
“[a]
of execution
Lewis,
sidei’ed the evidence.
v.
38
Cf. Jeffers
tion of a
or
successive federal habeas
Cir.1994),
418
cert.
granted only
be
should
when there
U.S.
1269 fault, 1175, 130 delay is not his must that the show (1995). 34.726(l)(a). L.Ed.2d 1127 § Nev.Rev.Stat. Supreme also deter- Court Nevada case, the Nevada Su appropriate under Nev. was mined dismissal clearly its preme Court stated that dismissal section, § dis- Under Rev.Stat. 34.800. procedural appeal was based on of Moran’s delay filing if a in the of missal is warranted Supreme grounds. Although the Nevada ability to State’s petition prejudices the of discussed the merits Moran’s Court petition, unless Moran “shows respond to the claims, clearly “any stated the court upon grounds of is based any of of [Moran’s] of the merits discussion knowledge by had he could not have which strictly purpose in this case is claims diligence before of exercise reasonable demonstrating that cаnnot over [Moran] state prejudicial to the the circumstances procedural by showing defaults come his occurred_” 34.800(l)(a). § Nev.Rev.Stat. conclude, prejudice.” there cause and We delay prej- if Dismissal also warranted fore, clearly Supreme Court that the Nevada Moran, retry ability to udices State’s its Moran’s rested dismissal that a funda- unless Moran “demonstrates independent procedural grounds. state miscarriage justice has occurred mental however, judgment proceedings resulting argues, (cid:127) Nev.Rev.Stat. procedural sentence.” Supreme conviction Court’s bar Nevada 34.800(l)(b). is filed after adequate § If because that rules are not years of the convic- To consistently apply five from the affirmancе them. does not sentence, presumption procedural adequate, rebuttable rule must be tion a state’s Maass, Nev.Rev. prejudice consistently to the State arises. 28 applied. Wells v. 34.800(2). (9th Cir.1994). 1005, 1010 § F.3d Stat. Supreme Court determined The Nevada reject argument. The Moran’s petition was filed more
that Moran’s consistently ap Supreme Nevada Court affirmance of his years after the than seven prohibits which review of plied the state rule to dem- that Moran had failed conviction and untimely of an claim unless the the merits delay fault or a lack not his onstrate was See, e.g., cause. petitioner demonstrates Consequently, prejudice to the State. 764, State, 809, P.2d Birges v. 107 Nev. 820 held Moran’s “entire State, (1991); 107 Nev. Glauner 765-66 properly procеdurally barred.” petition is (1991); Colley v. 1003 813 P.2d State, 235, 773 P.2d 105 Nev. procedural bar of If Nevada’s (1989). Leg the Nevada State Even before claims is based federal constitutional procedural rules which adopted the islature adequate state independent upon court, the Neva claims bar Moran’s reviewing from precluded are grounds, we petitions dismissed with Supreme Court da can establish unless Moran these claims delay if the reviewing the merits out default, or prejudice cause prejudicial. Groesbeck v. unreasonable and Peterson, justice. miscarriage Noltie State, P.2d Nev. Cir.1993). inde “[T]he 804-05 the fed grounds bars pendent state doctrine *9 case, Supreme Court in In the Nevada reconsidering issue one from the eral courts untimely filing of the to be long found the corpus as review context of habeas the merits, briefly but explicitly a bar to review invokes state state court as the support petition- the did not separate for its noted the record as a basis procedural bar rule McDaniel, counsel. of ineffective assistance of er’s claim v. 65 F.3d McKenna decision.” 797, State, 335, Cir.1995). 890 P.2d 111 Nev. 1483, 1488 Hood v. preclude To feder (1995). the rec- This reference to review, clearly brief must state 798 the state court al that the Nevada Su- not establish independent and ord does rests on its decision inconsistently applies that preme Court grounds. Siripongs v. Cal adequate state (9th Cir.1994), procedural bar rule. deron, 1308, 1317 state’s cert. F.3d 35 1270 2518-19, only 2514, other 112 one case 120 L.Ed.2d S.Ct. Lewis, Supi’eme (1992); 299, address the a de- Cоurt merits of 269 v. 68 300 Jeffers — State, (9th Cir.), -, denied, Bennett Nev.
faulted claim. v. 111 cert. U.S. 116 676, (1995). (1995). 1099, There, 36, 132 901 679 how- P.2d S.Ct. L.Ed.2d 917 ever, “intricately the merits related” to Moreover, prejudice. claim of
the
the consis-
Abuse of the Writ
application
requires application
tent
rule
of
analyzing
Before
whether Moran can
only
procedural
majority
rule
in the vast
justice
miscarriage
demonstrate cause or a
of
Adams,
401,
Dugger
of cases.
v.
489 U.S.
bar,
procedural
to avoid Nevada’s
we address
6,
6,
1211,
n.
411
S.Ct.
n.
109
1218
103
whether Moran’s second
is an abuse
(1989).
L.Ed.2d 435
because,
if
of
writ. We do this
attempt
Other cases cited Moran
an
writ,
may
is an abuse of the
Supreme
to show the Nevada
Court does not
obtain federal review of the
of his
merits
consistently apply
procedural
bar
state’s
only
claims
if he can demonstrate cause and
rules are not relevant. These
cases do
prejudice
justice.
miscarriage
or a
procedural
discuss the
rule which bars re
analysis
prejudice,
of cause and
and the anal
view
the merits of claims
in an
raised
ysis
miscarriage
justice,
of a
same
Warden,
untimely petition. Ford v.
111 Nev.
proposed
proce
whether the
bar
review is
—
872,
(1995),
denied,
901
123
P.2d
cert.
or an
dural
abuse of the writ.
Bonin
950,
133
874
L.Ed.2d
Calderon,
(9th Cir.1996)
1155,
1159
(1996);
State,
—
609,
Paine v.
110 Nev.
877 (Bonin III),
denied,
U.S. -,
cert.
116
(1994),
U.S.-,
1025
cert.
P.2d
(Feb.
980,
1996).
23,
S.Ct.
riаge cause, would result in the absence To demonstrate Moran must Whitley, our Sawyer objective review. 505 “some U.S. show factor external to the
1271 may holding petitioner impeded efforts to raise the not avoid our that a is counsel’s defense McCleskey, not entitled to effective assistance state court.” 499 of counsel claim the by during proceedings alleging 111 Ineffective S.Ct. at 1470. habeas due U.S. at cause, Amendment, may if process, assistance of counsel constitute rather than Sixth indepen Accordingly, reject amounts to an representation violation. this argument. Bonin v. Amendment violation. dent Sixth Cir.1993) Vasquez, 428 999 Miscarriage of Justice (Bonin I). may escape Moran the bar to argues Moran he has demonstrated by demonstrating preclu federal review he has received ineffective as cause because in a sion federal review would result mis appellate previ counsel. In our sistance of standard, carriage justice. satisfy To this rejected opinion, Moran’s claim that ous “actually Moran must is in demonstrate provided ineffective assis his trial counsel penalty. Sawyer, nocent” of 505 the death Moran, 57 F.3d In tance. at 699-700. this This at 112 at 2519. re S.Ct. petition, asserts he had the Moran quires to “show clear and convinc Moran for his direct and initial state same counsel that, ing evidence but for a constitutional petitions. post-conviction There and federal error, juror no reasonable would have found fore, argues, a conflict of existed interеst eligible penalty for the death under the [him] asserting precluded his counsel from which applicable state law.”3 Id. at S.Ct. appeal in his his own ineffectiveness on direct exception 2517. This is narrow is at post-conviction petition. first extraordinary reserved for the case. Id. at reject- previously We have considered and 2519; Dugger, at 489 U.S. at S.Ct. III, argument. Bonin 77 F.3d at ed this 6, 109 n. 412 n. S.Ct. at 1218 6. concluded there no Sixth 1159. We have actually argues he is innocent right to effective assistance Amendment felony degree of first murder because the during corpus or federal counsel habeas aggravating sentencing factors found I, F.2d at proceedings. Bonin guilty only panel indicate he is of second may by asserting rule not avoid this and, thus, ineligible degree for the murder proceeding proceed- was the first this habeas penalty. Specifically, the death ing in he could claim of which have raised his randomly and with found Moran had appellate ineffective assistance of counsel. apparent people in out motive killed the two III, F.3d at 1159. Bonin sentencing panel did not the saloon. The argues Moran also that cause exists be- factor, find, that Moran as an alleged conflict of cause his counsel’s interest during the had committed the murders process rights. He contends
violated due Consequently, robbery. perpetration of a deprived of his counsel’s he was of notice eligible argues he is not for the death conflict of interest. felony theory murder. penalty under essence, dismissing In Moran’s second arguing its decision appeal is deprived habeas from which this of effective assistance that he taken, rejected argu- during proceedings be of counsel had litigate his ment because it determined Moran counsel was not able to cause his pleaded guilty premeditated degree petitioner A alleged ineffectiveness. own This was process during habeas murder the saloon murders. to due entitled I, basis for Mor- 428-29. incorrect. While the factual proceedings. Bonin 999 F.2d at However, of his guilty plea the murder ex-wife or ineffectiveness of an’s “the absence premeditation, Moran did a was on the basis of does not in and of itself constitute counsel death sentence for that murder. process Id. at 429. Mоran receive a due violation.” allege that incorrectly apply of death and does not we should the sentence 3. Moran asserts that Thus, Schlup actually the murders. he is innocent of the more lenient standard established Delo, - U.S. -, apply. does not Id. at more lenient standard 130 L.Ed.2d eligibility challenges only 865-66. *11 guilty pleas Q: you The factual basis for the to the did time of And do that the the murders, perpetration robbery? for which saloon Moran received of a sentence, plea was to his his death limited to A: Yes. degree felony murder. first The state trial court then asked Moran Nevertheless, we conclude that Moran has aforethought whether he had “with malice by convincing not clear demonstrated willfully feloniously kill[ed]” the bartend- eligible thаt not for the evidence he is death er, answered, and Moran “Yes.” Moran an- penalty. Simply sentencing pan- because the question: next swered the find, factor, aggravating el not did as an that Q: you perpe- during And did do that the during the murders were committed the robbery? tration of that perpetration robbery, of a does not mean A: Yes. panel sentencing that the Moran found By during perpetra- Moran’s own during not commit the murders the admissions change he robbery plea hearing, tion of the or that was admitted to com- Moran not felony guilty degree mitting during first perpetration otherwise mur- the murders the correctly robbery, der. As noted of the Su- and he admitted this after the Court, preme guilt was explained the issue not be- court him had to this would make panel sentencing fore the and the degree the murders first murder. obliged was not to find the existence of That Moran formed the intent to rob be- Further, aggravating all conceivable factors. committing sup- fore murders the is also pled guilty robbery two counts of ported by During the record. his confession plea. challenged and has not the in hospital, the he he said had been the Also, finding killings the were that ran- saloon about hour and a half. He said the apparent dom and without motive is not in- patron eventually talking he shot was to a finding consistent with a that the murders girl” “fat point, in the saloon. At some the during perpetration were committed girl” “fat patron, left the saloon with the robbery. killing motive in the bar- patron the returned alone about five minutes patron did not tender need be to later. When was asked when he “de- robbery. analysis key facilitate the velop[ed] place,” robbing the intention of the during
whether the murders occurred answered, “Well, he girl it was after fat that robbery. perpetration of the left.” finding supports The record that Further, the indicates record Moran had a during perpe- murders committed drug unemployed severe addiction and was robbery. tration The information robbery. at the time of the Moran also murder, charged Moran with but did not paid stated in confession he that attention specify whether murder first or sec- to where placing the bartender was racks of degree. During change-of-plea ond hear- money and, killings, after the he took this ing, explained the statе trial court to Moran money. Finally, response question, the elements and definition of murder. The you guy, “Once shot the bartender and the explained trial court under also what you do,” answered, then what did guilty would circumstances Moran first “Then I robbing everything started I could specifi- degree murder. The state trial court supports finding rob.” All this evidence cally explained degree first murder in- prior Moran formed the intent to rob killings cludes which are “committed committing the murders. attempted perpetration perpetration or of a robbery.”4 ... arguing The state trial also In addition to is not eligible penalty asked Moran whether “with malice afore- for the death because was willfully feloniously thought properly guilty plea convicted [he] kill[ed]” murder, stated, patron, degree felony challenges first and Moran “Yes.” question: then the two answered the court’s factors found 200.030(l)(b), attempted perpetration § 4. Under Nev.Rev.Stat. murder committed degree perpetration robbery....” which is ... of ... includes "murder *12 reject argument that he sentencing is panel. Because three-judge state actually penalty. state, considering innocent of the death “weighing” in is a challenges, we must determine whether these Moran’s motion to recall mandate and convincing has clear and shown Moran execution, stay which motion was filed would no sentencer reasonable evidence 91-15609, his motion to in Case No. eligible for the death sen- found him have present in his execution connection with this Whitley, tence. Dеutscher 96-99007, appeal, are DENIED. Case No. Cir.1993). “sharply lim- This is a inquiry.” Id. at 607. it[ed] PREGERSON, Judge, concurring Circuit ineligible for the death argues is separately. apparently because the random sentence state of the case law and Given factor is un- killing aggravating motiveless case, ap- it procedural posture of this vague, constitutionally shifts the burden any legally pears there absence him, proof provides no rational basis ground stay. viable on which base penalty, and violates imposing the death Even as- right against self-incrimination.
suming aggravating factor unconstitu- this decide, tional, question we do not stringent clear and con- not satisfied has vincing evidence standard. sentencing panel the existence found
The (1) the murders factors: two apparent mo- at random and without SMOLEN, Plaintiff- A. Catherine (2) in tive, person placed another Appellant, during the murders. danger of death following mitigat- panel found (1) significant had no ing factors: CHATER, Shirley S. Commissioner (2) history, and Moran exhibited criminal Administration,* Security Social remorse for the saloon murders. Defendant-Appellee. whether, balancing is not Our review No. 94-35056. factors, we find a death sentence these would Instead, must deter- warranted. Appeals, Court of United States whether mine this second Circuit. Ninth demonstrated, by clear and con- July 1995. Argued and Submitted evidence, vincing no reasonable sentenc- This impose the death sentence. er would March 1996. Decided aggravating factor is still One we cannot do. tip sharply so does not
valid and the balance clearly could mitigation that we favor not sentencer would hold that a reasonable sentence. this Mor- impose the death Were stringent this standard an’s Here it does. apply. Id. would * Shalala, Secretary Security and Hu- E. Health Social Donna P.L. No. Pursuant to Services, Although Program Improvements Act of Independence the defendant. man as Secretary of Health Secretary the function of was of Health and Human Services Security cases Human Services Social Security responsible for the actions of the Social Social transferred to Commissioner time of its final decision Administration at the Administration, Security March effective case, as to the defendant "the this refer 106(d) with In accordance section throughout disposition for Commissioner" Chater, Act, So- Shirley Commissioner S. convenience. the sake of Administration, Security substituted cial