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Counsel Not Ineffective for Advising Against Appeal.

In Fountain v. Kyler, No. 03-4777 (August 25, 2005), the Circuit held that counsel was not ineffective, when, out of fear the client might face death penalty again, counsel advised not to appeal adverse trial court ruling on ineffectiveness claim.

Fountain was capitally prosecuted and sentenced to death under a capital statute that the Pa. Supreme Court found unconstitutional. He was then resentenced to life. After that, he pursued an ineffectiveness claim against his trial counsel in the Court of Common Pleas which dismissed his claim. By that time Pennsylvania had a new death penalty statute. His attorney advised him, however, not to appeal the adverse Common Pleas Court ruling and Fountain acceded to her advice. Later, over three dissents, the Pa. Supreme Court ruled that the new death penalty statute could not be applied retroactively to people, like Fountain, prosecuted under the earlier statute.

Fountain then pursued ineffectiveness claims against his second lawyer for the advice not to appeal the ineffectiveness ruling. The state courts ruled against him. The Circuit held that the ruling of the Pa. Superior Court denying the claim was not contrary to or an unreasonable application of clearly established federal law. While Pennsylvania caselaw suggested that Fountain could not be capitally retried, a U.S. Supreme Court opinion suggested he could be.

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