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Job Opening for HAT Counsel   

The National Habeas Assistance and Training Counsel (HAT) Project  is seeking to contract with an experienced federal capital habeas corpus practitioner to provide, on a part-time and limited basis, consulting, training, and related services to Criminal Justice Act (CJA) panel attorneys, to Capital Habeas Units within the federal defender offices as requested, and to the federal judiciary on a national basis.  This practitioner would join the National Habeas Assistance and Training Counsel Project, or HAT, which currently has four (4) other contractors.

Click here to view the job announcement.   Click here to view a detailed description of the position.

Florida prepared to conduct lethal injection executions   

Another disproportionality ruling from Florida Supreme Court   
On November 17, 2016, the Florida Supreme Court in another double murder case reduced two death sentences to life sentences on the ground of disproportionality.  McCloud v. State.

Florida Supreme Court finds death sentences disproportionate   
On November 17, 2016, the Florida Supreme Court issued a per curiam opinion in Phillips v. State, a double murder case, reducing the defendant's two death sentences to sentences of life imprisonment on disproportionality grounds.

Delaware Supreme Court rules death penalty statute unconstitutional   
On August 2, 2016, the Delaware Supreme Court issued its decision in Rauf v. State finding that the Delaware death penalty statute is unconstitutional pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016).  The Delaware Supreme Court answered five questions certified by the superior court where Benjamin Rauf's capital prosecution is pending.

Supreme Court grants cert in two Texas capital cases   

On June 6, 2016, the Supreme Court granted the certiorari petition of Texas death row inmate Bobby Moore, limited to the first question in the petition:  (1)  Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. 

Also on June 6th, the Supreme Court granted the certiorari  petition of Texas death row inmate Duane Buck.  His petition raised the following question:  Duane Buck's death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination.  Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an "expert" who testified that Mr. Buck was more likely to be dangerous in the future because his is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?

9th Circuit vacates decision concerning Chapter 154 regulations   

9th Circuit reverses ruling that California’s death penalty scheme is unconstitutional   
The Ninth Circuit (Graber, with Rawlinson; Watford concurring) has reversed District Court Judge Cormac Carney’s ruling that California’s current post-conviction review process in death penalty cases violates the Eighth Amendment.  Jones v. Davis (9th Cir. Nov. 12, 2015).  Specifically, Judge Carney found that the post-conviction review process had become so inordinately and unnecessarily delayed that only an arbitrarily selected few of the many sentenced to death would actually be executed.

Nevada death row inmate granted evidentiary hearing   
United States District Court Judge Mahan of the District of Nevada granted Michael Hogan’s request for an evidentiary hearing on a claim of IAC for failing to investigate and challenge an Iowa prior conviction that was used as an aggravating circumstance in Hogan’s Nevada capital trial.  Hogan v. Baker, 2015 WL 5692101 (D. Nev. Sept. 28, 2015).

Confrontation Clause victory in non-capital case from Ohio   
On remand from the Supreme Court for consideration of Davis v. Ayala, 135 S.Ct. 2187 (2015), the Sixth Circuit (Donald, with Daughtrey and Gibbons) again finds the state prisoner entitled to habeas relief. McCarley v. Kelly, ___ F.3d ___, 2015 WL 5255206 (6th Cir. Sept. 10, 2015). Petitioner was convicted of the aggravated murder of a woman who had filed a paternity suit naming petitioner as the father of her two year old son.  The son was present when the victim was killed two months later.  At trial, a child psychologist was allowed to testify about statements made by the victim’s son during therapy sessions that were initiated at the suggestion of the police.  (The police were unable to extract information from the young boy and hoped the psychologist would be more successful.  The psychologist was told to tell the police anything the boy revealed about the crime for use in the investigation.)

Chapter 154 development   
The Ninth Circuit Court of Appeals will hear argument on December 10, 2015, in DOJ’s appeal of the ruling by United States District Judge Wilken of the Northern District of California that struck down the Chapter 154 regulations promulgated by DOJ.   Habeas Corpus Resource Center, et al. v. United States Department of Justice, et al., 14-16928.  Judge Wilken’s orders in the case, as well as pleadings from the appeal and consolidated appeals, can be found on the secure portion of this website.

COA granted by 5th Circuit on Trevino-based Rule 60(b) motion   
On October 1, 2015, the Fifth Circuit (per curiam - Stewart, Higginbotham, Owen) issued an unpublished opinion granting Texas death row inmate Troy Clark a COA from the district court’s denial of Clark’s Rule 60(b)(6) motion.   The issues are whether the district court abused its discretion in denying the motion for being untimely and for failing to present extraordinary circumstances.  Clark v. Stephens, ___ Fed.Appx. ___, 2015 WL 5730638 (5th Cir. Oct. 1, 2015).

Recent Martinez/Trevino-related developments   

On December 24, 2014, the Eleventh Circuit issued a COA in Peterka v. Secretary, FL DOC, 14-13081-P on the following:

Is the Petitioner Peterka entitled to assert claims of ineffective assistance of trial counsel relying on Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 199 (2013) by invoking Federal Rule of Civil Procedure 60(b)(6) to argue that the judgment denying his original habeas petition should be reopened as to ground 5 to allow him to establish cause and prejudice for his failure to exhaust his ineffective assistance of counsel claims in state court.

Evidentiary hearing ordered for Arkansas death row inmate under Martinez/Trevino   
United States District Court Judge D.P. Marshall, Jr. of the Eastern District of Arkansas, granted in part Timothy Kemp’s request for an evidentiary hearing on the State’s procedural defenses.  Kemp v. Hobbs, 2014 WL 4079020 (E.D. Ark. Aug. 14, 2014).  Kemp’s claims of ineffective assistance of trial counsel related to his alleged mental illness, frontal lobe damage and childhood trauma were procedurally defaulted as a result of alleged ineffective assistance by state post-conviction counsel.  Judge Marshall concluded that Kemp was entitled to an evidentiary hearing to determine whether trial counsel was ineffective at either the guilt or sentencing phase for failing to investigate and present the mental state and trauma evidence.  “That decision will, under  Trevino, determine whether Kemp may present these arguments on the merits notwithstanding his failure to develop them in state court.”  Put another way, unless Kemp establishes that he was prejudiced by post-conviction counsel’s failure to raise the claims, they will remain procedurally defaulted.

Martinez/Trevino based Rule 60(b) motion denied by Sixth Circuit   
In Henness v. Bagley, ___ F.3d ___, 2014 WL 4401252 (6th Cir. Sept. 8, 2014), the Sixth Circuit (Siler, with Boggs and Sutton) affirmed the denial of Ohio death row inmate Warren Henness’s Rule 60(b) motion which alleged that intervening changes in the law established cause to overcome the procedural default of his ineffective assistance of trial counsel claims.  The panel found that “neither Martinez nor Trevino sufficiently changes the balance of the factors for consideration under Rule 60(b).”  In addition, the Sixth Circuit has previously ruled that Martinez does not apply to Ohio and has questioned whether Trevino does.  But even assuming that Trevino does apply to Ohio, the panel ruled that Henness was unable to meet the requirement of presenting a substantial claim as to both portions of the Strickland test.

Recent Martinez developments   
In Canales v. Stephens, ___ F.3d ___, 2014 WL 4290612 (5th Cir. Aug.29, 2014), a prison killing case, the Fifth Circuit (Prado, with Jolly and Davis)  reversed the district court’s denial of relief on a procedurally defaulted claim of ineffective assistance of counsel (IAC) at sentencing and remanded for consideration of the claim pursuant to Martinez and Trevino.  The claim alleged that trial counsel failed to thoroughly investigate and present mitigation evidence.  Canales further alleged that state habeas counsel failed to conduct the mitigation investigation necessary to raise the claim due to counsel’s mistaken belief that funding was capped.  The panel agreed with Canales that the performance of state habeas counsel fell below an objective standard of reasonableness.

Recent favorable juror misconduct cases   
United States District Court Judge William K. Sessions, III of the District of Vermont granted relief to federal death row inmate Donald Fell on a claim of juror misconduct that was premised on the juror visiting the crime scenes during trial and reporting his observations to other jurors, conduct the juror denied at the post-conviction hearing.  United States v. Fell, 2:01-cr-00012 (D. Vermont July, 24, 2014).  Judge Sessions concluded that the juror’s hearing testimony was not credible and Fell had established the misconduct occurred.  Judge Sessions found that not only did the government fail to rebut the presumption of prejudice that arose from the juror’s exposure to extra-record information, he also found that the juror’s investigation was not harmless in that it provided additional facts supporting certain aggravating factors and countered mitigation arguments.  Judge Sessions further ruled that Fell was entitled to relief independently on the basis of juror bias.  He explained: “Juror 143’s brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial demonstrate a partiality that would have resulted in his eviction from the panel during trial, and now invalidates Fell’s conviction.”

Arkansas district court orders evidentiary hearing pursuant to Martinez   
United States District Court Judge J. Leon Holmes of the Eastern District of Arkansas found that death row inmate Thomas Springs was “entitled to an evidentiary hearing on the question of whether he has a substantial claim of ineffective assistance of counsel at trial and during the penalty phase” on numerous claims related to Springs’ mental health and on the issue of whether state post-conviction counsel was ineffective in failing to pursue those claims.  Springs v. Hobbs, 2014 WL 2815804 (E.D. Ark. June 23, 2014).  Judge Holmes also included in the evidentiary hearing trial counsel’s failure to call Springs’ daughters at sentencing and state post-conviction counsel’s failure to call her at the post-conviction proceeding.

11th Circuit finds Alabama death row inmate entitled to sentencing relief   
In DeBruce v. Commissioner, Alabama Department of Corrections, (11th Cir. July 15, 2014), a robbery-murder case, the Eleventh Circuit (Wilson; Martin concurring; Tjoflat dissenting) found that the attorney retained by DeBruce’s family some three to four weeks before the capital trial began was ineffective as to the sentencing phase.  The panel majority found, inter alia, that even if it “accept[ed] the state court's factual determination that trial counsel made a strategic decision not to investigate mitigation evidence based on the results of the pre-trial report governing DeBruce's competency to stand trial, that decision could not have been reasonable as it would have been based on a failure to understand the law.  Because no lawyer could reasonably have made a strategic decision to forego the pursuit of mitigation evidence based on the results of the pre-trial report governing competency to stand trial, the Alabama Court of Criminal Appeals' conclusion to the contrary constitutes an unreasonable application of Strickland's performance prong.”  (Citations omitted.)

Federal district court judge finds California’s death penalty system unconstitutional   

United States District Court Judge Cormac J. Carney of the Central District of California has ruled that “[i]nordinate and unpredictable delay” in California death penalty cases post-trial

has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.  And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.

 Therefore, Judge Carney vacated the death sentence of Ernest Jones.  Jones v. Chappell, ___ F.Supp.2d ___, 2014 WL 3567365 (C.D. Cal. July 16, 2014).


4th Circuit rejects request for remand pursuant to Martinez v. Ryan   
The Fourth Circuit (Traxler with Duncan; partial dissent by Davis) in a North Carolina death penalty case denied federal habeas counsel’s motion to be designated as “Martinez counsel” and to have the appeal deferred and the case remanded to the district court for further investigation and possible amendment of the habeas petition with substantial claims of ineffective assistance by trial counsel that state post-conviction counsel were ineffective in failing to raise.  Fowler v. Joyner, ___ F.3d ___, 2014 WL 2445786 (4th Cir. June 2, 2014).

9th Circuit grants in part Arizona death row inmate’s request for remand pursuant to Martinez   
On May 16, 2014, in Hurles v. Ryan, ___ F.3d ___, 2014 WL 1979307 (9th Cir. May 16, 2014), the Ninth Circuit (Nelson, with Pregerson; dissent by Ikuta) withdrew its January 18, 2013 opinion and substituted a new opinion.  It again affirmed the denial of several claim and again reversed the denial of a judicial bias claim, remanding for an evidentiary hearing on the issue.  In addition, the panel denied Hurles’ request for remand for consideration of whether ineffective assistance by state post-conviction counsel excused the default of several ineffective assistance of trial and appellate counsel claims.  It did, however, grant a remand for consideration of a defaulted claim of whether appellate counsel was ineffective in failing to challenge the trial court’s denial of neurological testing (the “Ake” claim).

Recent Martinez-related rulings   
The Fifth Circuit (Dennis, with Smith and Haynes) denied a COA to Texas death row inmate Licho Escamilla on his argument that Martinez v. Ryan, 132 S.Ct. 1309 (2012) compelled the federal habeas court to consider evidence that was not presented in state habeas proceedings due to state habeas counsel’s ineffectiveness.  Escamilla v. Stephens, ___ F.3d ___, 2014 WL 1465361 (5th Cir. April 15, 2014).  The evidence at issue related to a claim of ineffective assistance of trial counsel (IAC) for failing to adequately investigate and present mitigating evidence, a claim the panel did  grant Escamilla a COA on.  The panel found that “Martinez does not apply to claims that were fully adjudicated on the merits by the state habeas courts because those claims are, by definition, not procedurally defaulted.”

11th Circuit affirms the dismissal of another Florida death row inmate’s habeas petition as untimely   
On April 24, 2014, the Eleventh Circuit (Carnes, with Dubina; concurrence by Martin) affirmed the dismissal of Daniel Lugo’s habeas petition and the denial of his Rule 60(b) motion.  Lugo v. Secretary, Florida Dept. of Corrections.  The appeals court agreed with the district court that Lugo was not entitled to equitable tolling.  Both the majority opinion and the concurrence discuss the serious, and apparently unique, problem in Florida where there have been at least 34 capital cases with blown federal statutes of limitation.

Supreme Court grants cert in two habeas cases, vacates the judgments, and remands for consideration of White v. Woodall   
On April 28, 2014, The Supreme Court granted the certiorari petition of the Secretary of the Department of Corrections in Wetzel v. Washington, 13-699 and vacated the judgment in Washington v. Secretary Pennsylvania Department of Corrections, 726 F.3d 471 (3rd Cir. 2013).  The Third Circuit had upheld the grant of habeas relief on a Confrontation Clause claim.  The case involves the admission of a non-testifying co-defendant’s confession that had been redacted to substitute Washington’s name with neutral pronouns and phrases.  That same day, the Supreme Court granted the certiorari petition of the warden in Robinson v. Drummond, 13-496, and vacated the judgment in Drummond v. Houk, 728 F.3d 520 (6th Cir. 2014), a capital case.  The Sixth Circuit had affirmed the grant of habeas relief on a claim of denial of a public trial.  The case involved the partial closure of the courtroom during one afternoon of testimony where all spectators other than the media were removed.  In both cases, the lower courts were instructed to reconsider their decisions in light of the Supreme Court's recent opinion in White v Woodall.

Supreme Court reverses grant of habeas relief to Kentucky death row inmate   
On April 23, 2014, the Supreme Court (Scalia, with Roberts, Kennedy, Thomas, Alito and Kagan) issued an opinion reversing the Sixth Circuit’s ruling that Robert Woodall was entitled to habeas relief on his claim that his Fifth Amendment rights had been violated by the trial court’s refusal to instruct the jury during the sentencing phase that it could not drawn an adverse inference from Woodall’s silence.  White v. Woodall.

9th Circuit finds alleged IAC of state post-conviction provides good cause for abeyance in Nevada death penalty case   
In Blake v. Baker (9th Cir. March 14, 2014), the Ninth Circuit (Tashima, with Fletcher and Nguyen) reversed the district court’s dismissal of Blake’s habeas petition and remanded with instructions to grant abeyance while Blake exhausts a new claim of ineffective assistance (IAC) by trial counsel.   (The district court found that Blake did not have good cause for a stay under Rhines v. Weber, 544 U.S. 269 (2005) and ordered Blake to withdraw his unexhausted claims or face dismissal of the entire petition.  Blake elected dismissal.)  The court of appeals found that Blake established the requisite good cause for abeyance by explaining with specificity that the claim was unexhausted because state post-conviction counsel had failed to conduct any independent investigation or retain experts in order to discover the facts that would have supported the IAC claim.

9th Circuit affirms denial of habeas relief to Arizona death row inmate Roger Murray   
The Ninth Circuit (Rawlinson, with Bybee and Ikuta) affirmed the denial of Roger Murray’s habeas petition.  (Roger) Murray v. Schriro (9th Cir. March 17, 2014).  The court first ruled that the Arizona Supreme Court’s denial of Murray’s change of venue claim was not contrary to or an unreasonable application of clearly established federal law.  (The state supreme court had determined that prejudice could not be presumed on the record before it and that Murray had failed to establish actual prejudice.) The appeals court rejected Murray’s argument that the legal standard for prejudice is lower in capital cases.   Next, the appeals court found that an equal protection/fair cross-section challenge to the exclusion of Christians from the jury was unexhausted, procedurally defaulted and without merit.   Murray’s Batson claim failed for the reasons set out in his brother Robert’s decision.

9th Circuit affirms denial of habeas relief to Arizona death row inmate Robert Murray   
In (Robert) Murray v. Schriro (9th Cir. March 17, 2014), the Ninth Circuit (Bybee, with Rawlinson and Ikuta) rejected Murray’s Batson and ineffective assistance of counsel (IAC) at sentencing claims.  Regarding the Batson claim, the appeals court was unpersuaded by Murray’s contention that the state court unreasonably applied clearly established federal law by failing to conduct comparative juror analysis in ruling on his Batson challenge.  The appeals court found that “Batson and the cases that follow it do not require trial courts to conduct a comparative juror analysis.”  Rather, Miller-El established that comparative juror analysis “is an important means for federal courts to review a trial court’s ruling in a Batson challenge.”  Thus, the federal courts often must conduct comparative juror analysis in order to assess the reasonableness of the state court’s factual finding irrespective of whether the state court conducted its own formal comparative juror analysis.

6th Circuit finds that Martinez v. Ryan applies to cases from Tennessee   
In Sutton v. Carpenter (6th Cir. March 19, 2014), although post-conviction counsel raised some claims of ineffectiveness of trial counsel (IAC), new IAC claims were presented in the federal petition that were found to be procedurally defaulted.  The Sixth Circuit (White, with Moore and Donald) ruled that for Tennessee cases, IAC by post-conviction counsel vis-a-vis a claim of IAC by trial counsel can provide cause to excuse the procedural default of the trial IAC claim.  In reaching this conclusion, the appeals court noted first the Supreme Court’s ruling in Martinez v. Ryan, 132 S.Ct. 1309 (2012), that IAC by post-conviction counsel can provide cause to excuse a procedurally defaulted trial IAC claim in jurisdictions where post-conviction proceedings provide the first opportunity for the defendant to challenge trial counsel’s performance.  The appeals court then looked to Trevino v. Thaler, 133 S.Ct. 1911 (2013), where the Supreme Court found Martinez also applicable in jurisdictions that permit defendants to raise IAC claims on direct appeal but have a procedural framework that make it highly unlikely in a typical case that a defendant would have a meaningful opportunity to do so.  Looking to Tennessee law, the panel concluded that Tennessee, like Texas, does not provide defendants with a meaningful opportunity to raise trial IAC claims on direct appeal.

9th Circuit to rehear Arizona death penalty case en banc   
On March 12, 2014, the Ninth Circuit issued an order stating that McKinney v. Ryan, 09-99018 will be reheard en banc.  The three-judge panel decision (McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013)) may no longer be cited as precedent in the Ninth Circuit.  The rehearing petition had argued: “[E]n banc review is necessary as the majority opinion in this case: (1) conflicts with the Eddings v. Oklahoma, 455 U.S. 104 (1983), Tennard v. Dretke, 542 U.S. 274, 283-87 (2004), Lockett v. Ohio, 438 U.S. 586, 604-06 (1978), Penry v. Lynaugh, 492 U.S. 302, 319 (1989) the Eddings/Lockett line of cases; and (2) conflicts with other decisions of this Court.”  Specifically, the case involves the question of whether the Arizona courts improperly refused to consider McKinney’s evidence of post traumatic stress disorder because McKinney had failed to establish a causal nexus between his condition and the capital offense.

9th Circuit declines Arizona's request to vacate Dickens decision   
On March 11, 2014, the Ninth Circuit issued a published order in Dickens v. Ryan, 08-99017 denying Arizona's motion to stay issuance of the mandate, vacate the decision that, inter alia, remanded the case to the district court for application of Martinez v. Ryan, and dismiss the habeas petition as moot.  (Gregory Dickens died several days after the Ninth Circuit issued its decision in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc)).  In concluding that it should exercise its discretion to allow the decision to stand, the court observed: "The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III."

9th Circuit remands defaulted trial IAC claim for consideration of Martinez v. Ryan   
In Clabourne v. Ryan, ___ F.3d ___, 2014 WL 866382 (9th Cir. March 5, 2014), the panel (Clifton, with Berzon and Ikuta) affirmed the denial of a claim that the Arizona Supreme Court improperly applied a causal nexus test to Clabourne’s mental health evidence.  The panel then certified for appeal two claims of ineffective assistance by resentencing counsel that had been found by the district court to be procedurally defaulted in a pre-Martinez decision.  (One involved the failure to seek suppression of a confession.  The other concerned the failure to seek additional mental health evaluations.)  The panel then analyzed the fragmented decision in Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729 (9th Cir. Sept. 3, 2013) (en banc) to discern what parts received support from a majority of the en banc court.  Those parts would then be applied to the Martinez analysis.

Arizona AG moves to vacate Dickens decision   
On January 29, 2014, the Arizona Attorney General filed a motion to stay issuance of the mandate in Dickens v. Ryan, ___ F.3d ___, 2014 WL 241871 (9th Cir. Jan. 23, 2014) (en banc) in order to vacate the opinion and dismiss the habeas petition as moot in light of Gregory Dickens' recent death.

9th Circuit issues decision concerning, inter alia, the interplay between Pinholster and Martinez   
In Dickens v. Ryan, 08-99017 (9th Cir. Jan. 23, 2013) (en banc), the Ninth Circuit affirmed the denial of Arizona death row inmate Gregory Dickens’s Edmund/Tison claim but remanded the case to the district court for consideration of whether Dickens could show cause and prejudice for the procedural default of an ineffective assistance of counsel (IAC) at sentencing claim.

11 Circuit holds that Martinez and Trevino are inapplicable to violations of the statute of limitations   

In Arthur v. Thomas, 12-13952 (11th Cir. Jan. 6, 2014), the Eleventh Circuit (Hull, with Marcus and Wilson) affirmed the district court’s denial of Alabama death row inmate Thomas Arthur’s Rule 60(b) motion that argued that Martinez v. Ryan and Trevino v. Thaler provided grounds for reopening federal habeas proceedings that had been terminated due to Arthur’s failure to comply with the statute of limitations.  In finding Martinez and Trevino inapplicable to Arthur’s situation, the panel explained: "Arthur’s case does not involve 'cause' under the procedural default doctrine. Arthur’s § 2254 petition was dismissed because he filed it well after AEDPA’s limitations period expired, and he showed no basis for tolling. See Arthur, 452 F.3d at 1250-54. Arthur’s case concerns only the operation of a federal rule—namely, the operation of AEDPA’s one-year statute of limitations. It was wholly the operation of AEDPA’s federal limitations period—independent of any state procedural rule—that barred Arthur’s § 2254 petition. Because Arthur’s § 2254 petition was denied due to his complete failure to timely file that § 2254 petition, the Supreme Court’s analysis in Martinez and Trevino of when and how 'cause' might excuse noncompliance with a state procedural rule is wholly inapplicable here."

Preliminary injunction granted in Chapter 154 litigation   
On December 4, 2013, United States District Court Judge Claudia Wilken of the Northern District of California issued a preliminary injunction regarding the rule entitled, “Certification Process for State Capital Counsel Systems,” published at 78 Fed. Reg. 58,160 (Sept. 23, 2013).  This Final Rule was promulgated by the Department of Justice to provide a process for determining whether a state has established a post-conviction system for death row inmates that entitles the state to the benefits of Chapter 154 of Title 28 of the United States Code in federal habeas corpus proceedings.

Recent amendment and abeyance rulings in federal capital habeas cases   
In Robins v. Baker, 2013 WL 5947343 (D.Nev. Nov. 5, 2013), United States District Court Judge Larry R. Hicks granted Robins’ motion for permission to file a fourth amended habeas petition that included new claims for relief and an additional theory for relief on a previously raised claim.  Although federal habeas proceedings had been initiated in 1999, Judge Hicks found that Robins had made “a detailed, colorable showing that any delay . . . [could] be attributed to unprofessional conduct and ineffective representation of him by his former counsel” who had since been replaced by new counsel. Judge Hicks further found that Robins was entitled to a stay of federal proceedings in order to exhaust his new claims in state court.  In reaching this conclusion, Judge Hicks observed that “[i]f a stay is warranted with respect to any single claim, the court need not conduct a claim-by-claim analysis regarding the remaining claims.”  He concluded that a new claim of ineffective assistance of trial counsel for failing to challenge the cause of the victim’s death was “at least potentially meritorious,” justifying holding federal proceedings in abeyance.  Judge Hicks looked to Martinez v. Ryan in finding that ineffective assistance by state post-conviction counsel could provide cause to excuse Robins’ failure to earlier exhaust his claims.

9th Circuit rules Martinez applies to defaulted appellate IAC claims   
On December 4, 2013, the Ninth Circuit held in Nguyen v. Curry, a non-capital habeas case, that Martinez v. Ryan "applies to the failure to raise not only a claim of trial-counsel [ineffective assistance], but also a claim of appellate-counsel [ineffective assistance]."  The panel recognized that other circuit courts have taken a contrary position but concluded that those other courts were wrong in their conclusion.

Helpful rulings by Eighth Circuit in Arkansas capital case involving Atkins and Martinez   
In Sasser v. Hobbs, ___ F.3d ___ (8th Cir. (Ark.) Nov. 15, 2013), the Eighth Circuit (Riley, with Wollman and Melloy), reversed in part the district court’s decision denying habeas relief to Andrew Sasser and remanded for reconsideration of Sasser’s Atkins claim and for an evidentiary hearing on defaulted claims of ineffective assistance by trial counsel at sentencing, as well as ineffective assistance by post-conviction counsel in failing to present those defaulted claims.

Supreme Court grants cert in Atkins-related case from Florida   

On October 21, 2013, the Supreme Court granted Freddie Hall's certiorari petition. The petition raises the following issue: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virgina.


TRO issues preventing Chapter 154 regulations from taking effect   
On October 18, 2013, Judge Wilken of the United States District Court for the Northern District of California issued a Temporary Restraining Order ("TRO") prohibiting the Attorney General's Final Rule concerning the certification of states for compliance with Chapter 154 of Title 28 from going into effect.  Judge Wilken found: (1) the Final Rule likely did not give adequate notice of the Attorney General's view that the certification process is not subject to APA requirements governing rulemaking; and (2) Plaintiff's have shown a likelihood of success on the merits on their claim that the Final Rule is arbitrary and capricious under the APA.  The TRO will expire on November 1, 2013.  A hearing on Plaintiff's request for a preliminary injunction will be held on October 31, 2013.

Chapter 154 News   

The hearing on the motion for a temporary restraining order that was set by Judge Seeborg of the Northern District of California on October 8, 2013 was vacated by Judge Seeborg that same day. The following day Judge Wilken issued an order finding that the pending APA lawsuit against the Department of Justice related to a prior APA lawsuit by the Habeas Corpus Resource Center against the Department of Justice and assigned the pending case to herself. The Department of Justice has filed a request to stay the litigation in light of the absence of a federal budget. The plaintiffs have filed an opposition to this request. Addition information about these legal proceedings is available on the secure portion of HAT's website.


Hearing set for TRO request in Chapter 154 litigation   

A hearing will be held on October 10, 2013 on the motion for a temporary restraining order filed in Habeas Corpus Resource Center and the Office of the Federal Public Defender for the District of Arizona v. United States Department of Justice and Eric H. Holder, No. C-13-04517 RS (N.D. Cal.). The lawsuit challenges the Department of Justice’s Final Rule governing the certification process for states seeking the benefits of Chapter 154 of Title 28. The case is presently pending before Judge Seeborg.  

The Supreme Court relists three certiorari petitions involving habeas cases   

On October 7, 2013, the Supreme Court did not act on three petitions seeking reversal of prisoner-favorable rulings in habeas proceedings that had been distributed for the Supreme Court’s September 30th conference. The Supreme Court has redistributed the cases for its October 11, 2013 conference. Go to Pending Cert Petitions of Interest for information about the questions presented.

Lawsuit seeks to stop DOJ’s Chapter 154 Final Rule from becoming effective   
On September 30, 2013, a Complaint and Request for Injunctive Relief was filed in the United States District Court for the Northern District of California by the Habeas Corpus Resource Center and the Federal Defender for the District of Arizona against the Department of Justice. The complaint challenges the Final Rule promulgated by the Department of Justice concerning the certification process for States seeking the benefits of Chapter 154 of Title 28.

Oklahoma death row inmate granted habeas relief on claim of unconstitutional “victim impact” testimony   

On September 16, 2013, the Tenth Circuit (Hartz, with Briscoe and Kelly) reversed the denial of sentencing relief to Rocky Eugene Dodd, ruling that testimony by six or seven relatives of the two victims recommending the death penalty violated the Eighth Amendment and was not harmless. Dodd v. Trammell, ___ F.3d ___, 2013 WL 5124331 (10th Cir. Sept. 16, 2013).


9th Circuit affirms denial of habeas relief to Arizona death row inmate James McKinney   
On September 16, 2013, the Ninth Circuit (N.R. Smith, with Bea; partial concurrence and partial dissent by Wardlaw) affirmed the denial of James McKinney’s habeas petition, rejecting claims that the use of dual juries for McKinney and his co-defendant was unconstitutional, that McKinney’s constitutional rights were violated when he was required to wear a leg brace during trial, and that the trial court did not adequately consider mitigating factors in imposing the death sentence. McKinney v. Ryan, ___ F.3d ___, 2013 WL 5066368 (9th Cir. Sept. 16, 2013).

11th Circuit affirms denial of Rule 60(b) motion by Florida death row inmate that was premised on Holland v. Florida   
On September 13, 2013, the Eleventh Circuit (Pryor, with Barkett specially concurring and Jordan concurring) held that the district court did not abuse its discretion in ruling that Holland v. Florida, 130 S.Ct. 2549 (2010) was not an extraordinary circumstance that warranted vacating a final judgment that dismissed Paul Howell’s habeas petition as untimely. Howell v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2013 WL 4873933 (11th Cir. Sept. 13, 2013).

11th Circuit reverses grant of sentencing relief to Florida death row inmate   

On September 23, 2013, the Eleventh Circuit (Pryor, with Marcus; Wilson concurring in part, dissenting in part) reversed the district court’s grant of relief to Askari Abdullah Muhammad (fka Thomas Knight) on his claim that the Confrontation Clause was violated by the admission of hearing evidence at Muhammad’s resentencing proceeding. Muhammad v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2013 WL 5305326 (11th Cir. Sept. 23, 2013). The panel majority concluded that hearsay evidence is not barred in sentencing proceedings so long as the defendant is allowed to rebut the evidence. The panel affirmed the denial of relief on Muhammad’s claim that the application of the cold, calculated, and premeditated aggravator to his case violated the Ex Post Facto Clause.  


Important Chapter 154 Development   

On September 23, 2013, the Department of Justice published its Final Rule concerning the certification process for States seeking the benefits of the special habeas corpus provisions contained in Chapter 154 of Title 28. The special procedures will be available to States that the Attorney General certifies as having established mechanisms for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in capital State post-conviction proceedings, and as providing standards of competency for the appointment of counsel in those proceedings. The Final Rule will be effective 30 days after September 23, 2013 unless it is withdrawn or a federal court prevents it from going into effect at that time.


11th Circuit affirms denial of habeas relief to three Georgia death row inmates   

During August, the Eleventh Circuit affirmed the denial of relief to Georgia death row inmates Andrew Brannan, Tommy Waldrip and Joshua Bishop.


9th Circuit affirms denial of successor petition filed by Idaho death row inmate raising Atkins claim   

The Ninth Circuit (Gould, with Fisher and Rawlinson) rejected Gerald Pizzuto’s contention that the Idaho Supreme Court’s denial of relief on Pizzuto’s claim of mental retardation was based on an unreasonable application of Atkins and an unreasonable determination of the facts. Pizzuto v. Blades, ___ F.3d ___, 2013 WL 4779679 (9th Cir. Sept. 9, 2013).


10th Circuit rules that attorney may be compensated under CJA for civil rights litigation challenging lethal injection   
In Hooper v. Jones, ___ Fed.Appx. ___, 2013 WL 4734106 (10th Cir. Sept. 4, 2013), the Tenth Circuit (Tymkovich, with Anderson and Matheson) sided with the Fifth Circuit over the Eleventh Circuit and ruled that the denial of compensation by the district court for time spent litigating under 42 U.S.C. § 1983 is an appealable order under 28 U.S.C. § 1291.

7th Circuit finds former Illinois death row inmate entitled to a hearing on his Batson claim   

Murray Hooper, an Arizona death row inmate whose Illinois death sentence was commuted by the Governor to life imprisonment, argued that the prosecution in the 1981 Illinois trial violated Batson by using its peremptory challenges to remove all five of the black veniremembers who remained after the cause challenges. (The prosecution used six peremptory challenges against white or Asian veniremembers.) The Seventh Circuit (Easterbrook, with Hamilton and United States District Court Judge Miller of the Northern District of Indiana) found that the Supreme Court of Illinois, in ruling on the Batson claim, "made at least four errors that were unreasonable applications of the Supreme Court’s decisions, if not outright contradictions of them." Hooper v. Ryan, ___ F.3d ___, 2013 WL 4779579 (7th Cir. Sept. 9, 2013).


10th Circuit affirms denial of relief to Oklahoma death row inmate   

In Howell v. Trammell, ___ F.3d ___, 2013 WL 4750554 (10th Cir. Sept. 5, 2013), the Tenth Circuit (Tymkovich, with Lucero and Gorsuch) affirmed the denial of claims related to Howell’s original capital trial and to his sentencing retrial. The panel also denied Howell’s motion for reconsideration of the denial of a COA on claims raised in a second habeas petition based on Atkins.


5th Circuit grants COA on Atkins claim in Texas death penalty case   
In Matamoros v. Stephens, ___ Fed.Appx. ___, 2013 WL 4712741 (5th Cir. Sept. 3, 2013), the Fifth Circuit (per curiam - Jolly, James, Elrod) found that John Matamoros was entitled to a COA on his claim that he is mentally retarded but not on his claim of Penry II error. In addition, the panel denied Matamoros’s request for a remand to the district court to reconsider the Atkins claim de novo.

Pennsylvania attempts to have FCDO removed as counsel in state post-conviction proceedings   

In a number of cases, the Commonwealth of Pennsylvania has moved to preclude the FCDO from representing Pennsylvania death row inmates in state post-conviction proceedings where FCDO is attempting to exhaust inmates’ state remedies. According to the Commonwealth, the state court representation by FCDO violates its funding obligations under federal law.


Ninth Circuit remands Arizona death penalty case to district court based on Martinez v. Ryan   
Following the Supreme Court’s reversal of the Ninth Circuit’s grant of relief to David Detrich on a claim of ineffective assistance of counsel at sentencing and remand for the Ninth Circuit to consider the impact of Cullen v. Pinholster, the Ninth Circuit sitting en banc has remanded the habeas case back to the district court for a determination of whether, pursuant to Martinez v. Ryan, ineffective assistance by state post-conviction counsel provides cause to overcome Detrich’s procedural default of other ineffective assistance of counsel claims. Detrich v. Ryan (9th Cir. Sept. 3, 2013) (en banc).

Tenth Circuit finds Oklahoma death row inmate entitled to habeas relief on Beck claim   

In Williams v. Trammell, ___ Fed.Appx. ___, 2013 WL 4504774 (10th Cir. Aug. 26, 2013), the Tenth Circuit (Hartz, Murphy, Holmes) decided that the Oklahoma Court of Criminal Appeals applied a rule contrary to that set forth in Beck v. Alabama, 447 U.S. 625 (1980) when it determined that Sterling Williams had not been entitled to his requested instruction on second-degree depraved-mind murder. It then found that denial of the instruction violated Williams’s constitutional rights.


Sixth Circuit upholds grant of habeas relief to Ohio death row inmate on denial of public trial claim.   

In Drummond v. Houk, ___ F.3d ___, 2013 WL 4505144 (6th Cir. Aug. 26, 2013), the panel (Cole with Griffin; dissent by Kethledge) affirmed the district court’s ruling that the trial court violated John Drummond’s right to a public trial by clearly the courtroom of non-media spectators during part of the capital trial. The panel majority agreed with the lower court’s finding that the state court’s denial of relief involved an unreasonable application of Waller v. Georgia, 467 U.S. 39 (1984).


Chapter 154 Developments   

On August 6, 2013, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget concluded its review of the Department of Justice's final rule regarding the Certification Process for State Capital Counsel Systems.  The next step is publication of the final rule in the Federal Register. The final rule will become effective 30 days after its publication.

In Arizona capital case, 9th Circuit finds Ring violation was not harmless and remands for grant of sentencing relief   
In Murdaugh v. Ryan (9th Cir. July 26, 2013), the Ninth Circuit (Nelson with Reinhardt and M. Smith) reversed the denial of habeas relief as to Michael Murdaugh’s death sentence after ruling that the violation of Ring v. Arizona, 536 U.S. 584 (2002) had a substantial and injurious effect or influence on the sentencing decision.

6th Circuit affirms denial of Ohio death row inmate’s habeas petition despite finding trial counsel were deficient as to sentencing   
In Fitzpatrick v. Robinson, ___ F.3d ___, 2013 WL 3762886 (6th Cir. July 19, 2013), the Sixth Circuit (Clay with McKeague and Kethledge) affirmed the district’s denial of claims that trial counsel were ineffective as to Stanley Fitzpatrick’s guilty plea and as to the sentencing proceeding, and that Fitzpatrick’s waiver of a jury and his guilty plea were not knowing and voluntary.

Preliminary Injunction blocks execution of Georgia death row inmate Warren Hill   
On July 18, 2013, Judge Gail S. Tusan of the Fulton County Superior Court issued an order granting Warren Hill’s Emergency Motion for Preliminary Injunction, staying the July 19th execution date. Hill’s underlying civil complaint challenges a Georgia statute that precludes Hill and the public from accessing information about the source of the drug to be used in his execution, as well as information about the professional qualifications of those involved in creating the drug.

Florida Supreme Court rules that death row inmate received ineffective assistance of counsel at the sentencing phase of his capital trial.   
In Shellito v. State, ___ So.3d ___, 2013 WL 3334922 (Fla. July 3, 2013), the Florida Supreme Court found that Michael Shellito had satisfied his burden of showing that trial counsel’s performance in mounting a limited investigation and presentation of Shellito's substantial mental health problems was "unreasonable under prevailing professional norms" and that Shellito was prejudiced by counsel’s deficiencies.

Florida death row inmate receives stay of execution   

On July 9, 2013, a Bradford County judge issued a stay of Marshall Gore's scheduled July 10th execution.  Counsel for Gore had requested the stay based on Gore's alleged incompetence to be executed.

6th Circuit rejects Ohio death row inmate’s due process challenge to prosecutor’s use of inconsistent theories of culpability   
The en banc Sixth Circuit (Boggs, with Batchelder, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin and Kethledge; dissent by Daughtrey, with Martin, Moore, Cole, Clay, Stranch and Donald; dissent by White) rejected John Stumpf’s argument that his due process rights were violated as to his sentence because the prosecutor argued at Stumpf’s trial and in post-sentencing proceedings that Stumpf was the actual killer of the capital murder victim but at the trial of the co-defendant presented evidence from a jailhouse snitch who claimed that the co-defendant had confessed to being the shooter. Stumpf v. Robinson, ___ F.3d ___, 2013 WL 3336739 (6th Cir. July 3, 2013).

10th Circuit grants habeas relief to Oklahoma death row inmate on claim that Oklahoma lacked jurisdiction over the capital crime   
In Magnan v. Trammell, ___ F.3d ___, 2013 WL 2897799 (10th Cir. June 14, 2013), the Tenth Circuit (Briscoe, with Kelly and Hartz) agreed with David Magnan that the three murders he pleaded guilty to having committed occurred on "Indian County" and, therefore, Oklahoma lacked jurisdiction over the offenses.

Eleventh Circuit affirms dismissal of Florida death row inmate’s successor petition and vacates stay of execution   
On July 27, 2013, the Eleventh Circuit (per curiam - Tjoflat, Carnes, Hull), ruled that the district court should not have granted a COA to Marshall Gore on the issue of whether Martinez v. Ryan could excuse his failure to exhaust his claim of incompetence to be executed and affirmed the district court’s dismissal of Gore’s successor petition. The panel also vacated the stay of execution it previously granted and denied Gore’s motion for a further stay of execution. Gore v. Crews, 13-12834 (11th Cir. June 27, 2013).

Supreme Court denies certiorari petition in non-capital habeas case raising issue of interplay between Cullen v. Pinholster and Martinez v. Ryan   

On June 27, 2013, the Supreme Court denied Elrick Gallow’s petition for writ of certiorari, 12-7516. The question raised by Gallow was:

Can a federal court consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C.§ 2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post conviction counsel.

Supreme Court vacates non-capital Ninth Circuit en banc decision concerning invocation of right to counsel.   
On June 27, 2013, the Supreme Court granted the warden’s certiorari petition in Grounds v. Sessoms, 12-804, vacated the Ninth Circuit’s judgment, and remanded the case for further consideration in light of Salinas v. Texas, 570 U.S. ___ (2013). In Salinas, the Court upheld a conviction where the defendant never expressly invoked his right against self-incrimination during voluntary questioning and his failure to answer certain questions was later used as evidence of his guilt.

Supreme Court reverses Ninth Circuit’s judgment in Arizona capital case and vacates stay of execution.   
On June 24, 2013, the Supreme Court issued a per curium decision in Ryan v. Schad, 12-1084, ruling that the Ninth Circuit abused its discretion by withholding issuance of its mandate in Edward Schad’s habeas case after the appeals court had affirmed the denial of habeas relief and the Supreme Court had denied certiorari review and a request for rehearing.

Eleventh Circuit stays execution of Florida death row inmate Marshall Lee Gore   
On June 24, 2013, the Eleventh Circuit (Tjoflat, Carnes, Hull) temporarily stayed Marshall Gore’s execution, scheduled for that same day, after United States District Court Judge Donald S. Graham of the Southern District of Florida dismissed without prejudice Gore’s successor federal habeas petition but issued a COA on "Whether Martinez v. Ryan created an exemption to the exhaustion requirement of 28 U.S.C. § 2254(b) when counsel is ineffective in failing to assert a Ford Claim in state court?"

Supreme Court issues decision in non-capital case involving prosecution comments on defendant’s silence during voluntary noncustodial interrogation   
On June 17, 2013, the Supreme Court issued a decision affirming the state court’s denial of Genovevo Salinas’ claim that he was denied his Fifth Amendment rights by the prosecutor’s comments on his silence during interrogation. Salinas v. Texas, 570 U.S. ___ (June 17, 2013). Justice Alito announced the judgment of the Court and delivered an opinion joined by the Chief Justice and Justice Kennedy. Justice Thomas, filed an opinion concurring in the judgment in which Justice Scalia joined. Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

In Virginia death penalty case, Fourth Circuit remands for appointment of independent federal habeas counsel for Martinez analysis   
On June 7, 2013, the Fourth Circuit (Davis with Wynn and Diaz concurring) issued an unpublished order vacating the district court judgment denying Ricky Gray’s habeas petition and remanding for appointment of independent counsel to review the performance of state post-conviction counsel vis-a-vis the presentation of ineffective assistance of trial counsel claims. Gray v. Pearson, No. 12-5 (4th Cir. June 7, 2013).

Supreme Court issues a per curiam reversal in a Ninth Circuit non-capital habeas case   

On June 3, 2013, the Supreme Court issued a per curiam opinion in Nevada et. al., v. Jackson, 539 U.S. ___ (2013) reversing the Ninth Circuit's grant of habeas relief.  Jackson had been charged with rape and other serious charges involving his ex-girlfriend.  His defense was that the alleged victim had fabricated the sexual assault.  In support of the defense, Jackson sought to introduce testimony and police reports showing that the alleged victim had called the police on several prior occasions claiming that Jackson had raped or otherwise assaulted her.  The police had been unable to corroborate many of these prior allegations, and in several cases they expressed skepticism of her claims.  The trial court permitted Jackson to question the alleged victim about the prior allegations but denied his request to admit the police reports or call as witnesses the officers involved.  Jackson was convicted and sentenced to life imprisonment.  On appeal, the Nevada Supreme Court denied Jackson's claim that the exclusion of evidence violated his federal constitutional right to present a complete defense. 

Supreme Court GVRs   

On June 3, 2013, the Supreme Court granted certiorari, vacated the judgment, and remanded eight cases for consideration of Trevino v. Thaler, 569 U.S. ___ (2013).  Six of the cases were from the Fifth Circuit and, like in Trevino, involved Texas inmates - Washington v. Thaler, 11-10870; Balentine v. Thaler, 12-5906; Ayestas v. Thaler, 12-6656; Haynes v. Thaler, 12-6760; Gates v. Thaler, 12-7612; Newbury v. Thaler, 12-7657.  One case was from the Sixth Circuit involving a Tennessee inmate -Smith v. Colson, 12-390 - and the other case was from the Eighth Circuit concerning an Arkansas inmate - Dansby v. Hobbs, 12-8582.   Also on June 3, 2013, the Supreme Court granted certiorari, vacated the judgment, and remanded three cases for consideration of McQuiggin v. Perkins, 569 U.S. ___ (2013), one from the Third Circuit - Stratton v. Coleman, Supt., 12-8093 - one from the Fifth Circuit - Vizcarra v. Thaler, 12-6257 - and one from the Eleventh Circuit - Mancill v. Freeman, 12-6794. 

Colorado Governor issues reprieve for death row inmate Nathan Dunlap   

On May 22, 2013, Colorado Governor John Hickenlooper issued an executive order granting Nathan Dunlap a "temporary reprieve" from an execution that had been just three months away.  "It is a legitimate question whether we as a state should be taking lives," the order says. "Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case."

Eleventh Circuit rejects claim of incompetence to be executed   

On May 21, 2013, the Eleventh Circuit (Carnes, with Pryor; Wilson concurring in the result) issued a decision finding that "AEDPA requires that federal habeas relief be denied" to Florida death row inmate John Ferguson.  Ferguson v. Secretary, Florida Dept. of Corrections (11th Cir. May 21, 2013).

Habeas relief granted in non-capital Maryland case on the ground of ineffective assistance of counsel related to a plea offer.   

On May 1, 2013, District Court Judge James Bredar of the District of Maryland issued a Memorandum and Order finding that state prisoner James Alan Ross, who pleaded guilty to four counts of first degree assault, was entitled to habeas relief on his claim that trial counsel provided ineffective assistance in regard to a plea offer. Ross v. Wolfe, ___ F.Supp.2d ___, 2013 WL 1831313 (D. Md. May 1, 2013). The district court found that trial counsel had lied to Ross in order to persuade him to accept a plea bargain and this ineffectiveness rendered the resulting guilty plea involuntary.

Ninth Circuit affirms denial of relief to another Arizona death row inmate   

On September 18, 2012, the Ninth Circuit (Schroeder with O'Scannlain and Graber) affirmed the denial of Pete Rogovich's habeas petition, finding that he was unable to overcome the "heavy burden under AEDPA."  His first claim was that the trial court

Nevada Federal District Court denies in part Rule 59(e) motion in death penalty case   
On February 11, 2013, Nevada District Court Judge Pro issued an order denying Cary Williams’ Rule 59(e) motion that sought relief from an August 2, 2012 order denying Williams' habeas petition. Among the arguments in Williams’ Rule 59(e) motion was that the district erred in refusing to consider certain evidence offered in support of subclaims of ineffective assistance by trial counsel.

Mann COA denial   

On April 9, 2013, the Eleventh Circuit (Pryor with Dubina dissent by Martin) issued an unpublished order denying Florida death row inmate Larry Mann's request for a certificate of appealability sothat Mann could appeal the district court's denial of Mann's

Habeas grant to Pennslyvania death row inmate   

On November 28, 2012, United States District Court Judge Joyner of the Eastern District of Pennsylvania issued a memorandum and order finding that Roger Judge was entitled to sentencing relief on two claims of ineffective assistance of counsel and also

Habeas relief granted in non-capital murder case on Batson claim and related ineffective assistance of counsel claim.   

In Drain v. Woods, ___ F.Supp.2d ___, 2012 WL 5383048 (E.D. Mich. Nov. 2, 2012), the district court ruled that the prosecuting attorney violated Drain’s right to equal protection of the law by using peremptory challenges to excuse prospective jurors on the basis of race. Alternatively, in found that Drain’s trial attorney was ineffective for failing to object to the prosecutor's discriminatory use of peremptory challenges and to the trial court's procedures during voir dire. 

Fifth Circuit denies Texas death row inmate's request for a COA   

On September 14, 2012, the Fifth Circuit (Higginbotham with Smith and Haynes) issued a published decision denying Douglas Feldman's request for a COA.  Feldman v. Thaler.   Feldman had sought a COA on three of the four claims denied by

Ninth Circuit affirms denial of habeas relief to Arizona death row inmate   

On September 10, 2012, the Ninth Circuit (Thomas with Gould and Bybee) affirmed the denial of Joseph Wood, III's habeas petition.  Wood v. Ryan.  The panel concluded that Wood was not entitled to relief on the following claims (1) the

In non-capital murder case, showing of actual innocence justifies equitable tolling and merits review of claims   

On September 10, 2012, the Sixth Circuit (White with Martin and Gilman) ruled that Alfred Cleveland, who is serving a life sentence for a 1991 Ohio murder, presented a credible claim of actual innocence that entitled him to equitable tolling

Tenth Circuit affirms denial of habeas relief to Oklahoma death row inmate   

On September 4, 2012, the Tenth Circuit (Gorsuch with Murphy and O'Brien) affirmed the denial of Anthony Banks' habeas petition.   Banks v. Workman.  The panel ruled (1) a Confrontation Clause violation concerning Banks' alleged confession to his brother that Banks