UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4550

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CORNELL WINFREI MCCLURE, a/k/a Droopy,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR01-367)

Submitted: May 14, 2007 Decided: July 10, 2007

Before MICHAEL and DUNCAN, Circuit Judges, and Frank D. WHITNEY,

United States District Judge for the Western District of North

Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C.,

Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, James M. Trusty, Assistant United States Attorney,

Bryan Foreman, Assistant United States Attorney, Theodore M.

Cooperstein, Special Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Cornell Winfrei McClure was convicted on several criminal

counts relating to the kidnapping and murder of Tessa Mae Osborne

on federal property and sentenced to life imprisonment. See 18

U.S.C. §§ 924(c), 1111, 1201(a)(2). On appeal, McClure argues that

the death penalty violates customary international law in

contravention of the Eighth Amendment and that the Federal Death

Penalty Act (the “FDPA”) offends the Indictment Clause of the Fifth

Amendment. Because McClure did not receive a death sentence,

however, we may not consider his challenges to the death penalty

lest we issue an advisory opinion in violation of Article III of

the United States Constitution. Accordingly, we affirm his

conviction and sentence.

I.

The evidence adduced at trial, which is consistent with a

confession McClure now recants, suggests that McClure and codefendant Rufus J. Millegan, Jr., killed Osborne in retaliation for

the robbery of Millegan by certain of Osborne’s acquaintances. As

Osborne was walking to work on the afternoon of May 1, 2001,

McClure and Millegan picked her up in a borrowed vehicle and drove

her to Millegan’s apartment, where Millegan retrieved two handguns.

The duo then drove Osborne to the Beltsville Agricultural Research

Center, an area within the territorial jurisdiction of the United
3

States. As the three exited the vehicle, McClure reached into

Millegan’s pocket, extracted one of the handguns, and shot Osborne.

As Osborne ran, McClure and Millegan continued firing until the

handguns were empty of ammunition. McClure and Millegan fled,

leaving Osborne behind. Osborne died as a result of the gunshot

wounds.

McClure was arrested shortly thereafter and confessed to the

crime. The government informed McClure of its intention to seek

the death penalty. McClure then filed a series of motions

challenging the constitutionality of the death penalty, which the

district court denied. After a lengthy colloquy with the court to

ensure the voluntariness of the waiver, McClure waived his right to

a jury trial. The district court found McClure guilty on all

counts and sentenced him to life imprisonment without release.

II.

On appeal, McClure resurrects the challenges to the death

penalty that he introduced before his trial. First, McClure argues

that imposition of the death penalty is necessarily “cruel and

unusual” in violation of the Eighth Amendment. McClure notes that

the Supreme Court increasingly has cited customary international

law to inform its analysis in death-penalty cases. See, e.g.,

Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (finding confirmation

for its decision to abolish the death penalty for juveniles in the
4

fact that the United States remained the only county in the world

to contemplate the execution of juveniles); Atkins v. Virginia, 536

U.S. 304, 316 n.21 (2002) (suggesting that “the world

community[’s]” disapproval of “the imposition of the death penalty

for crimes committed by mentally retarded offenders . . . lends

further support to [the Court’s] conclusion that there is a

consensus” against such imposition). Because the United States is

now the only Western nation to implement the death penalty, McClure

reasons, the death penalty per se violates customary international

law and should be considered to be in contravention of the Eighth

Amendment.

Second, McClure argues that the FDPA facially violates the

Indictment Clause of the Fifth Amendment: “No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury.” McClure argues that

Ring v. Arizona, 536 U.S. 584 (2002), requires that any capital

indictment mention at least one aggravating factor to satisfy the

Fifth Amendment. See United States v. Higgs, 353 F.3d 281, 297-98

(4th Cir. 2003) (reading Ring to require that such factors appear

in the indictment). But see United States v. Wills, 346 F.3d 476,

501 (4th Cir. 2003) (reading Ring not to require aggravating

factors in the indictment). Though McClure concedes that his own

indictment did include the necessary aggravating factors, he

nevertheless argues that the FDPA provides no authorization or
5

mechanism for a grand jury to consider aggravating factors.

Therefore, he concludes, the FDPA necessarily violates Ring and is

unconstitutional.

We do not reach the merits of either of McClure’s

constitutional arguments, however, because another constitutional

provision prevents us from reaching them: the Article III

prohibition against advisory opinions.

III.

Article III, Section 2 provides, in relevant part, that “[t]he

judicial power shall extend to all cases, in law and equity,

arising under this Constitution, the laws of the United States, and

treaties made, . . . [and] to controversies to which the United

States shall be a party.” More succinctly, “the exercise of the

judicial power is limited to ‘cases’ and ‘controversies.’” Muskrat

v. United States, 219 U.S. 346, 356 (1911). The Supreme Court has

developed a number of constitutional justiciability doctrines from

the text of Article III, Section 2, including the prohibition

against advisory opinions, the political question doctrine, and the

doctrines of standing, ripeness, and mootness. See Erwin

Chemerinsky, Federal Jurisdiction § 2.1 (4th ed. 2003).

Underpinning all of these doctrines is the prohibition against

advisory opinions. The Court has developed two criteria that must

be satisfied to ensure that a case does not call for an advisory
6

opinion. First, the case must pit against each other “‘adverse

parties whose contentions are submitted to the court for

adjudication.’” Muskrat, 219 U.S. at 357 (quoting In re Pacific

Ry. Comm’n, 32 F. 241, 255 (C.C.N.D. Cal. 1887)). Second, a

decision in the case must be likely to have some effect on the

dispute. See, e.g., Chi. & S. Air Lines v. Waterman S.S. Corp.,

333 U.S. 103, 113 (1948) (refusing to review certain Civil

Aeronautics Board decisions because the President could disregard

or modify the judicial rulings).

This court has had occasion to apply this second criterion.

For example, in United States v. Baker, 45 F.3d 837 (4th Cir.

1995), the defendant challenged the constitutionality of conducting

via video conference a mental competency hearing pursuant to 18

U.S.C. § 4245. Id. at 840. The parties agreed that whatever the

court’s ruling, it would also be binding on related hearings held

pursuant to 18 U.S.C. § 4246. Id. at 840 n.1. The court expressly

rejected the invitation to rule on the constitutionality of a

video-conference hearing under § 4246: “Because there was no

commitment hearing in this case initiated pursuant to section 4246

on appeal, any holding we might make with respect to section 4246

would be an advisory opinion.” Id. The court therefore held that

“the parties cannot, by virtue of their ‘stipulation,’ confer

jurisdiction on this Court to issue an advisory opinion.” Id.

Similarly, this court has also declined to rule on the
7

constitutionality of a statute that had been materially revised

since the litigation was initiated. See 11126 Baltimore Blvd. v.

Prince George’s County, 924 F.2d 557, 557-58 (4th Cir. 1991)

(holding that any decision on the older version of the statute

would offer only illusory relief because the municipality could

simply rely prospectively on the newer version).

The Tenth Circuit has applied the prohibition against advisory

opinions to facts bearing some resemblance to the case at bar. In

United States v. Maestas, 523 F.2d 316 (10th Cir. 1975), the

defendant, a non-Indian, was charged in federal court with the rape

of two Indian women in Indian country. Id. at 318. The statutory

schema established a maximum penalty of death for a non-Indian

convicted of such a rape, 18 U.S.C. § 2031, but a maximum penalty

of life imprisonment for an Indian convicted of the same crime, 18

U.S.C. § 1153. Maestas, 523 F.2d at 322. Because the government

did not seek the death penalty, however, the court suggested that

to issue a ruling regarding the disparate punishments possible for

Indians and non-Indians would constitute the rendering of an

advisory opinion. Id. at 322-23.

This criterion, that a decision must be likely to have some

effect on the dispute, has been compared to the redressability

prong of the standing inquiry. For example, in City of Los Angeles

v. Lyons, 461 U.S. 95 (1983), the Supreme Court linked satisfaction

of the redressability prong to the assurance that the case “does
8

not entail the issuance of an advisory opinion . . . and that the

exercise of a court’s remedial powers will actually redress the

alleged injury.” Id. at 129. See also Chemerinsky, supra, § 2.2

(noting the centrality of the prohibition against advisory opinions

by highlighting how “several of the other justiciability

doctrines,” including the redressability prong of the standing

inquiry, “prevent review where there is not a sufficient likelihood

that the federal court decision will make some difference”).

It seems axiomatic that McClure should not be permitted to

challenge the constitutionality of the death penalty in light of

the fact that he received only a life sentence. Recognizing this,

McClure argues that the mere possibility of his receiving the death

penalty created an injury of constitutional magnitude that a

favorable ruling on appeal would redress. McClure insists, without

evidence, that he would have been less likely to be convicted if

tried before a jury, but was less likely to receive the death

penalty following a bench trial. Thus, the apprehension of a

possible death sentence motivated McClure to alter his trial

strategy, waiving his right to a jury trial and instead submitting

to a bench trial. Were this court to agree, strike down the death

penalty under either of his arguments, and grant him a new trial,
*McClure analogizes his situation to that of the defendants in

United States v. Jackson, 390 U.S. 570 (1968). In Jackson, the

Supreme Court construed a federal kidnapping statute to allow for

imposition of the death penalty only if a defendant were tried

before a jury. Id. at 581. If instead a defendant were to choose

a bench trial, the judge could not impose the death penalty. Id.

The Court found the statute to impose an unconstitutional burden on

the defendants’ right to a jury trial because it “chill[s] the

assertion of constitutional rights by penalizing those who choose

to exercise them.” Id. McClure’s waiver, however, does not

present the same issue as that in Jackson absent evidence that

McClure would indeed have been “penaliz[ed]” had he not waived his

right to jury trial. See id.

9

McClure concludes, he would not waive his right to a jury trial and

would have a better chance of securing an acquittal.*

McClure’s chain of suppositions invites us to indulge in

sophistry. McClure does not challenge the voluntariness of his

waiver of his right to a jury trial. Nor does McClure challenge

the sufficiency of the evidence undergirding his convictions.

Nevertheless, his argument would require us to find that his waiver

of a jury trial, however knowing, was fatally infected by an

imbalance of probabilities for which McClure offers no support.

Allowing McClure to proceed would also require our credulous

acquiescence in the speculation that he would be substantially more

likely to be acquitted in his new trial before a jury,

notwithstanding the unassailed and unassailable evidence in the

record supporting his conviction.

The absence of any tenable connection between a decision on

the merits and the possibility of meaningful relief for McClure

compels us to reject his appeal. Article III of the Constitution
10

empowers us only to rule where we would have effect. See Baker, 45

F.3d at 840; 11126 Baltimore Blvd., 924 F.2d at 557-58. We do not

find that McClure has shown that a favorable decision poses a

nonnegligible, let alone substantial, likelihood of affording him

relief. Without such likelihood, we are constrained from issuing

what would be an advisory opinion.

IV.

In light of the foregoing, we are without jurisdiction to

consider McClure’s death-penalty challenges on their merits.

Because McClure presents no other arguments on appeal, we affirm

his conviction and sentence.

AFFIRMED