For the Week of: 11/2/2008 Fourth Circuit affirms denial of habeas petition filed by North Carolina death row inmate. On November 3, 2008, the Fourth Circuit (Traxler with Shedd and Duncan) affirmed the denial of Carl Moseley’s habeas petition. Moseley v. Branker, ___ F.3d ___, 2008 WL 4767459 (4th Cir. Nov. 3, 2008). The sole issue addressed by the panel was Moseley’s claim that the prosecution violated Brady. The evidence that had not been turned over to the defense concerned a second murder the prosecutor contended had been committed by Moseley. (Moseley was subsequently tried for the second murder and received a death sentence for that crime as well.) The prosecutor admitted evidence of this second murder, which had numerous similarities to the capital offense, in order to help prove Moseley’s identity as the killer in the capital case. Although the defense had been provided with some information about persons the police initially suspected of having committed the second murder, additional potentially inculpatory evidence about two of the suspects had been withheld. On the record before it, however, the panel was unable to find that the state court’s rejection of Moseley’s claim had been contrary to, or an unreasonable application of, the due process principles of Brady and its progeny. First, the panel observed that independent evidence linking Moseley to the capital offense was strong, including testimony that Moseley had left a club with the victim purportedly to drive her home and her body was found nearby in a rural area traveled by Moseley in the past. Further, Moseley was gone from the club a longer time than expected and he then lied about where the victim lived. When rumors arose about the victim having disappeared from the club, Moseley asked his companions to lie and deny he had been at the club on the night of the killing. In addition, physical evidence linked Moseley to the killing such as dirt and weeds left in the recently cleaned car Moseley had borrowed to drive the victim home. Soil on Moseley’s boots, which were described as clean when Moseley was at the club, was consistent with soil found at the location of the victim’s body. The prosecutor also had a persuasive argument that traces of blood found on Moseley’s clothes could have been picked up following the assault on the victim. Second, there was independent strong evidence implicating Moseley in the second murder. Eyewitnesses observed Moseley talking and dancing with the victim during the evening before she was found raped and murdered in a rural area known by Moseley. And semen found in the victim’s body was matched to Moseley’s DNA. Finally, evidence that the same person was responsible for both homicides, and that the culprit was Moseley, “was compelling.” Not only did both victims share physical attributes, the injuries that were inflicted on them had striking similarities. (In order to link the two killings, the prosecutor presented, among other things, opinion testimony from a FBI Special Agent.) Ultimately, “the undisclosed evidence that Moseley asserts implicates [the two other men] as [the second victim’s] murderer is too weak and speculative to have created a reasonable probability that the result of his [capital trial] would have been different.” The panel also rejected Moseley’s contention that had all exculpatory evidence been produced pre-trial, the trial court would have precluded the prosecution from presenting evidence about the second murder. Notably, the judge hearing Moseley’s motion for appropriate relief had been the trial judge and stated that the new evidence would not have changed the ruling regarding admissibility of evidence about the second murder. Thus, the panel could not find a reasonable probability of a different result on this issue had all the evidence been disclosed.

North Carolina death row inmate loses appeal in Fourth Circuit on Atkins claim, among others. On November 3, 2008, in an unpublished opinion, the Fourth Circuit (Michael with Wilkinson and Shedd) affirmed the denial of Wade Cole’s habeas petition. Cole v. Branker, 2008 WL 4790109 (4th Cir. Nov. 3, 2008). The first claim for which Cole received a COA was an Atkins claim. Although the panel agreed with Cole’s contention that the state court’s ultimate rejection of his claim of mental retardation was “perfunctory” in that it did not explain why it discredited Cole’s evidence, that made no difference to the court’s analysis under § 2254(d). The panel was unpersuaded by Cole’s assertion that the state court unreasonably applied the Atkins rule. Here, two of the three available IQ scores for Cole exceeded 70. (A 1989 WAIS-R test resulted in a full-scale score of 79 and Cole received a 81 score on a 1994 WAIS-R test.) Notably, the appeals court had ruled in a prior case that a state court did not act objectively unreasonably by refusing to credit a low score when three others were above the threshold of 70. Although Cole offered evidence that his two scores over 70 could have been inflated by the “practice effect” and the “Flynn effect,” such evidence did not render the state court decision unreasonable. The panel pointed out that the IQ score that Cole relied on – a score of 68 received in 1988 – was barely over the threshold and the two later scores were more than ten points higher. And, importantly, Cole “offered no evidence to show that the practice effect of taking one prior I.Q. test could have accounted for an increase in his score nine months later by as much as eleven points, or sixteen percent.” The panel also rejected Cole’s argument that the state court’s ruling on the first prong of the mental retardation test was based on an unreasonable determination of the facts. It found: “The facts and circumstances in the record, as discussed above, are more than minimally consistent with a determination that Cole had an I.Q. greater than 70.” That the state mental retardation statute requires a defendant/petitioner to prove mental retardation by clear and convincing evidence was noted but not discussed. Because the panel found relief precluded based on its analysis of the first prong of the mental retardation test, it declined to address the state court’s additional findings that Cole failed to meet his burden of proof as to the remaining prongs. Next, the panel turned to a double jeopardy claim and ruled it was procedurally defaulted. The claim involved an aggravating circumstance found by the jury at Cole’s retrial -- that the capital murder was “part of a course of conduct in which [Cole committed] other crimes of violence against another person or persons.” According to Cole, the first jury had found that he lacked the intent to inflict harm on the second victim, thereby precluding application of the aggravating factor. The state post-conviction court had found the claim to be procedurally barred because it could have been, but was not, raised on direct appeal. Cole attempted to establish cause to overcome the default by alleging ineffective assistance by appellate counsel. Noting that appellate counsel did raise challenges to the “course of conduct” aggravator, as well as briefing fifteen additional assignments of error, the panel found that it was not “objectively unreasonable” for appellate counsel not to have pursued the double jeopardy/collateral estoppel issue. In response to an affidavit from appellate counsel explaining that the omission was not in fact strategic, but rather the result of not having thought of the argument, the panel stated: “‘[T]he relevant question,’ however, ‘is not whether counsel’s choices were strategic, but whether they were reasonable.’ Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).” Finding appellate counsel’s performance to be within the wide range of permissible conduct, the panel concluded Cole could not establish cause to overcome his procedural default of the claim. Nor could Cole excuse the procedural default under the miscarriage of justice exception given that a second aggravator was still present even if the “course of conduct” aggravator was barred under double jeopardy principles. Despite the procedural default, the panel went on to find the double jeopardy/collateral estoppel claim did not warrant habeas relief. Because the state court alternatively denied the claim on the merits, § 2254(d) applied. The panel found that no clearly established Supreme Court precedent existed applying the collateral estoppel doctrine to aggravating factors. In, addition, it did not believe that Cole had established that an issue of ultimate fact had been decided in his favor during the first trial. Rather, the instructions permitted the jury to find as it did – acquitting Cole of second degree murder and convicting him of involuntary manslaughter -- even if it found that he had harbored an intent to harm the victim. Finally, the panel addressed Cole’s independent claim of ineffective assistance of counsel for failing to raise the estoppel argument, which required application of § 2254(d). Given the panel’s prior finding concerning the absence of cause to excuse the default, the state court’s decision rejecting the appellate ineffectiveness claim did not involve an unreasonable application of Strickland.

Fifth Circuit denies Texas death row inmate’s requests for permission to file successive habeas petition and for a stay of execution. On November 4, 2008, the Fifth Circuit (per curiam - Higginbotham, Wiener, Barksdale) denied Elkie Taylor’s request to file a third federal habeas petition, as well as his request for a stay of his execution scheduled for November 6th. In re Taylor, 2008 WL 4790082 (5th Cir. Nov. 4, 2008). (Taylor had previously received permission to file a second federal habeas petition raising an Atkins claim. That petition was ultimately denied and the Fifth Circuit affirmed.) Taylor asserted in the present request to file a new petition that his jury charge made it possible for his conviction to rest on a non-capital offense, and as a result it is impossible to know whether a unanimous jury agreed on a capital murder verdict and that the trial court was without jurisdiction to enter a valid judgment. The panel found that the proposed petition failed to meet the requirements of § 2244(b) in that it neither involved a new rule of constitutional law nor was predicated on a facts that could not have previously been discovered. The panel was unimpressed with Taylor’s argument that the claim fell outside the procedures of § 2244(b) in that the trial court was without jurisdiction to enter a judgment due to the absence of a unanimous verdict. It responded: “The jury charge did not allege different offenses but different ways of committing the same offense. Neither Texas nor Federal law requires a jury to agree on how an offense was committed.” Elkie Taylor was executed on November 6, 2008.

For the Week of: 9/7/2008 Recent Atkins-related developments In California, on August 27, 2008, Judge René Chouteau of the Superior Court of Sonoma County signed a stipulated order granting habeas relief to death row inmate Calvin Coleman, finding him mentally retarded within the meaning of Atkin and relevant state law, vacating the death sentence, and setting a date for resentencing Coleman to life imprisonment without the possibility of parole. Coleman had been sentenced to death on August 27, 1981. On September 10, 2008, the California Supreme Court issued orders to show cause in two pending habeas cases by death row inmates George Smithey and Stanley Davis. (In re George Smithey, S070780; In re Stanley Davis, S116750.) In each case, the warden is required to show cause why the death sentence should not be vacated under Atkins. In Texas, the Texas Court of Criminal Appeals, after remanding for a live hearing on Ramiro Hernandez’s Atkins claim, summarily adopted the lower court’s findings and conclusions and denied Hernandez’s habeas petition. Ex Parte Hernandez, 2008 WL 4151813 (Tex. Crim. App. Sept. 10, 2008). On August 12, 2008, United States District Judge Sidney Fitzwater of the Northern District of Texas granted Yokamon Heard’s motion for reconsideration of an order denying Hearn’s successive Atkins petition and vacated the prior decision. Hearn v. Quarterman, 2008 WL 3362041 (N.D. Tex. Aug. 12, 2008). Finding Hearn’s now-developed Atkins claim to be unexhausted, and that a potential state remedy exists, Judge Fitzwater ordered federal proceedings stayed while Hearn returns to state court to exhaust the claim. .

Another habeas denial in Arizona federal district court On September 11, 2008, United States District Judge Frank Zapata of the District of Arizona denied Thomas Kemp’s habeas petition and sua sponte denied a COA. Kemp v. Schriro, 2008 WL 4183379 (D. Ariz. Sept. 11, 2008). In prior orders, other claims were dismissed on procedural grounds or as without merit. In this order, the first claim rejected concerned the allegedly unconstitutional admission during guilt phase of evidence of a sexual assault committed by Kemp following the capital murder. Zapata found, among other things, that “there is no clearly established Supreme Court precedent which holds that a state violates due process by admitting evidence of prior bad acts.” The second claim discussed included a complaint about the trial court’s refusal to permit voir dire on attitudes about homosexuality. In denying relief, Zapata noted, “there is no clearly established law requiring that jurors be questioned about possible bias against homosexuals.” And even assuming that the same voir dire requirements as apply to racial issues apply to sexuality, that would not help Kemp given that he was sentenced by a judge rather than a jury. In Turner v. Murray, which held that a defendant accused of an interracial murder was entitled to voir dire on racial prejudice, the court premised its holding on the wide discretion available to a jury at sentencing and granted relief only as to sentence due to the inadequate voir dire. According to Zapata, the concerns that led the Supreme Court in Turner to find a constitutional right to voir dire on race are absent when the trial court, rather than the jury, is the sentencer. Further distinguishing Turner was the fact that homosexuality was not “inextricably bound with” Kemp’s case. Also denied were claims related to: (1) admission of evidence of statements made by the non-testifying co-defendant; (2) alleged ineffective assistance of counsel for opening the door to hearsay statements made by the co-defendant and failing to object to prosecutorial misconduct during guilt phase argument; (3) trial court’s application of the “extraordinary cruelty” aggravating factor; (4) whether the “pecuniary gain” aggravator fails to narrow class of death-eligible defendants and whether sufficient evidence supported it; (5) whether there was a confrontation clause violation from trial court’s consideration of information in presentence report; (6) whether trial court failed to give adequate consideration to mitigation and failed to consider it collectively; (7) whether Kemp’s fair trial and confrontation rights were violated by defense counsel’s stipulation to the introduction of a prior conviction at sentencing without a knowing waiver from Kemp or opportunity to contest the identification; and (8) whether there was an unconstitutional denial of the procedural safeguard of proportionality review.

Ninth Circuit affirms the denial of habeas relief to California death row inmate. On September 9, 2008, the Ninth Circuit (Schroeder, with Silverman and Bybee) affirmed the denial of habeas relief to Thomas Edwards. Edwards v. Ayers, ___ F.3d ___, 2008 WL 4138235 (9th Cir. Sept. 9, 2008). First, the panel noted Edwards’ argument that AEDPA amendments to the federal habeas statutes should not apply to his claims because the district court’s delay in ruling on funding requests prevented Edwards from filing his petition pre-AEDPA. The panel found it need not resolve the issue as Edwards was not entitled to relief even under pre-AEDPA law. Turning to the claims for which a COA had issued, the panel found that Edwards’ challenge to the instruction on the “lying in wait” special circumstance (the death eligibility factor) was without merit. Edwards had argued that the instruction given in his particular case defined the special circumstance so broadly as to fail the narrowing requirement of the Eighth Amendment. The panel concluded, however, that the instruction was materially indistinguishable from an instruction found to pass constitutional muster in a prior case. Next, the panel rejected a Brady claim which was based on the prosecutor’s failure to disclose the complete file from an institution where Edwards had been confined for 14 years. Edwards alleged that the file’s contents supported a diminished capacity defense at the guilt-innocence phase of the trial and mental health mitigation at sentencing. The panel agreed with the district court’s assessment that the file contents would only have made a bad situation worse in that the file contained extremely damaging information that was more likely to aggravate the capital offense in the eyes of the jurors. Edwards had argued that materials in the files would have been invaluable in explaining how Edwards’ early brain dysfunctions evolved and how they related to the homicide. The files were consistent, according to Edwards, with Edwards being a classic ventromedial prefrontal lobe patient who cannot control impulses in times of stress. The panel found, however, that had Edwards presented expert testimony opining that the capital offense was impulsive and attributable to brain dysfunction, he would have opened the door to extremely damaging evidence about his hair fetish and questions about whether the shooting of the two young girls was related to his violent and sadistic fantasies about beheading and scalping women. The panel agreed with the district court that Edwards was not prejudiced by the prosecution’s failure to disclose the file. As for Edwards’ claim that trial counsel was ineffective in failing to present a defense that his mental state precluded a finding of premeditation at the guilt phase, again the panel was unpersuaded. First, the panel agreed with the district court’s finding that trial counsel had conducted a thorough investigation into Edwards’ mental health and his social and medical history before deciding not to present a mental state defense. Notably, trial counsel had consulted with at least four mental health experts prior to trial. A clinical neuropsychologist administered tests to Edwards and determined that he was more likely psychiatrically disturbed than cerebrally impaired. A neurological examination was conducted by a medical doctor who also found no indication of brain damage. A psychiatrist concluded that Edwards was disturbed but opined that his mental illness did not reach the threshold for a defense to the crime. Like the previous examiners, the psychiatrist found no reason to believe that Edwards suffered from a brain disorder. Finally, a forensic psychiatrist who was board certified in both neurology and psychiatry and who was provided extensive historical information evaluated Edwards. He concluded that although Edwards was mentally ill, his illness was not at a definable level and therefore would not support a defense to the shootings. While the psychiatrist suspected that Edwards’ problems were physiologically based, his testing failed to confirm this. As for Edwards’ contention that counsel should nevertheless have run a defense based on diminished capacity due to dysfunctional frontal lobes that reduce impulse control, the panel found the record showed the offense was well planned. Thus, counsel could not be deemed ineffective for failing to present a defense that was supported neither by the numerous experts counsel consulted or the circumstances of the crime. Similarly without support was Edwards’ argument that counsel should have presented in the penalty phase evidence of Edwards’ lifelong history of mental problems and disturbing behavior. Counsel had decided against such an approach and instead had called twenty-five witnesses to support the defense that the crime was an aberration and that Edwards caused no problems as a prisoner. As discussed above in relation to the Brady claim, Edwards’ mental history was “highly aggravating in its own right and would open the door to even more damaging evidence.” The panel concluded: “In sum, Edwards’ counsel was not ineffective when after a thorough investigation he decided not to present to the jury evidence of Edwards’ troubled background, evidence which in ‘its best possible light’ was a ‘basket of cobras.’”

South Carolina Supreme Court affirms grant of post-conviction relief on claim of ineffective assistance of counsel at the sentencing phase. On September 8, 2008, the South Carolina Supreme Court affirmed the post-conviction court’s finding that Donney Council received ineffective assistance of counsel at the sentencing phase of his capital trial. Council v. State, ___ S.E.2d ___, 2008 WL 4111335 (S.C. Sept. 8, 2008). Prior to the start of the penalty phase, trial counsel unsuccessfully moved to allow into evidence the polygraph results of the man Council claimed during the guilt phase was the actual killer of the 72-year-old victim. (Council admitted to being present at the victim’s home but claimed another man killed the victim; that man’s polygraph test showed deception.) The only witness called by the defense at sentencing was Council’s mother, who in her brief testimony referenced mental health treatment received by Council as a child but offered no details. Council’s mother also informed the jury that Council had two young sons and then pleaded for his life. The jury found the following aggravating circumstances: criminal sexual conduct; kidnapping; burglary; larceny with use of deadly weapon; killing by poison; and physical torture. A sentence of death was recommended and imposed. The post-conviction court found that trial counsel performed deficiently both in the timing of his investigation into Council’s background and the limited scope of the investigation given what counsel was on notice of, e.g., mental health records revealed that Council had a significant drop in I.Q. between the ages of 7 and 10 and had been medicated to “settle his nerves” during this time period. Although trial counsel had consulted with a mental health expert, the court concluded that counsel’s conduct in that regard was also unreasonable given that counsel failed to provide the expert with adequate records and only asked him to examine Council with respect to the issues of competency and criminal responsibility at the time of the capital offense. Prejudice was found by the lower court in light of testimony, inter alia, that: (1) Council likely suffers from brain dysfunction, particularly in his frontal lobe, and his problems began at an early age; (2) several of Council’s family members suffered from mental illness and were involved in criminal activity; (3) Council’s father was an extremely violent alcoholic who Council’s mother divorced on the grounds of extreme cruelty; (4) after his father left the home, Council’s family moved numerous times from one bad neighborhood to another, sometimes living in homes without running water or indoor plumbing; (5) Council failed the first, seventh and ninth grades; (6) Council suffered two head injuries prior to age 10; (7) Council was treated at age 7 or 8 for nervousness, sleepwalking, and nightmares at the local mental health center; (8) Council had attempted suicide; and (9) a forensic psychiatrist diagnosed Council as suffering from undifferentiated schizophrenia, which she believed began in early adolescence or childhood. The South Carolina readily agreed with the lower court’s finding of ineffective assistance of counsel. It first found counsel deficient for not beginning the background investigation after the State filed notice of intent to seek the death penalty and counsel learned that Council’s DNA was found at the crime scene and that Council had admitted to sexually assaulting the victim. The state supreme court explained: “Clearly, counsel should have been aware that the defense accomplice theory was not that strong and that mitigation evidence was the only means of influencing the jury to recommend a life sentence.” Instead, counsel delayed gathering life history records, delayed having an expert examine Council and then provided the expert with only limited records and asked for a narrow inquiry. This performance violated the ABA standards in effect at the time of trial. Further, the limited information counsel did have about his client should have put counsel on notice that potentially powerful mitigation could be found with additional investigation. Notably, although counsel asked for and received funding for a social history investigator, counsel chose to rely instead on his law partner and private investigator to collect potentially relevant information despite the fact that “neither of these individuals was qualified, in terms of social work experience, to evaluate the information to assess [Council’s] background.” Finally, the state supreme court found it unreasonable that counsel failed to obtain Council’s family records. The court found it “inexplicable” that counsel believed the records unimportant because they not directly involve Council. Further, the brief interviews that were conducted and the records counsel did have should have alerted counsel to the dysfunctional nature of Council’s family, warranting additional investigation. Even assuming counsel’s investigation was adequate, counsel was still deficient in presenting such a limited mitigation case. The court rejected the State’s contention that counsel had made a reasonable strategic decision to proceed as he did. First, as found above, the underlying investigation was incomplete. Second, the jury had already rejected the defense that someone else was the actual killer; “[t]herefore, counsel’s ‘all or nothing’ approach was unreasonable.” Third, “it would not have been inconsistent for trial counsel to have pursued [the alternative killer] theory in the guilt phase but then offered mitigating evidence in the penalty phase.” Finally, the court did not believe that Council’s character could have been further damaged by presentation of mitigating evidence. Even though numerous aggravating factors were found by the jury, the state supreme court found sufficient support in the record for the lower court’s prejudice ruling.

Recent non-capital habeas victories in the federal courts of appeals In Smiley v. Thurmer, ___ F.3d ___, 2008 WL 4095485 (7th Cir. (Wisc.) Sept. 5, 2008), the Seventh Circuit (Ripple, with Manion and Tinder) affirmed a grant of habeas relief in a murder case on a claim of Miranda violation. The panel agreed with the district court that the state court had unreasonably applied Miranda in finding that no Miranda warning had been required because Smiley had been arrested on an outstanding warrant, not for the murder, and his interrogators were unaware that their questions about the killing were likely to elicit incriminating responses. The panel also agreed that the constitutional error was not harmless. In the statement at issue, Smiley had denied any involvement in the killing. In a later statement, and at trial, he asserted self-defense. The improperly admitted statement was a critical piece of evidence used to impugn Smiley’s credibility. In Boykin v. Webb, ___ F.3d ___, 2008 WL 4067539 (6th Cir. (Ky.) Sept. 4, 2008), the Sixth Circuit (Martin with United States District Judge R. Leon Jordan of the Eastern District of Tennessee; Batchelder dissenting), reversed the denial of habeas relief on claims of ineffective assistance of counsel both at trial and on appeal. The ineffectiveness was premised on the simultaneous representation by trial counsel of both Boykin and a co-defendant, which Boykin alleged prevented counsel from pursuing facts that would exculpate Boykin but implicate the co-defendant. The panel majority found that the state court’s conclusion that Boykin had not shown a sufficient actual conflict of interest involved an unreasonable application of Supreme Court precedent. As for the ineffectiveness of appellate counsel for not raising the conflict claim, the panel majority again found Boykin entitled to relief, irrespective of the fact that Kentucky does not recognize such a claim as grounds for collateral relief. In dissent, Batchelder criticized the majority for basing its finding that a more favorable defense existed on unsworn police reports rather than affidavits. Batchelder also argued that the majority’s recitation of the facts contained important errors and that the theory of defense proposed by the majority – the co-defendant as the shooter – did not actually exculpate Boykin as there were two shooters. In Carmell v. Quarterman, 2008 WL 4158927 (5th Cir. (Tex.) Sept. 8, 2008), the Fifth Circuit (per curiam - King, DeMoss and Prado), issued an unpublished decision finding that Carmell was denied effective assistance by appellate counsel on remand from the United States Supreme Court. The panel rejected the lower court’s finding that Carmell could not complain about his first appointed attorney’s performance because the attorney withdrew at Carmell’s “request.” The withdrawal occurred after the attorney concluded that he could not fulfill the expectations set forth in correspondence from Carmell. The panel found that Carmell’s criteria for representation – confidentiality, communication and collaboration - “are essential to all representations and are neither excessive nor unreasonable demands to make upon counsel.” Thus, the lower court’s characterization of the withdrawal as being based on a “request” from Carmell was clearly erroneous. After having faulted Carmell for the removal of his initial appellate attorney, the lower court apparently did not address Carmell’s contention that successor counsel’s failure to file any brief or move for a continuance constituted ineffective assistance of appellate counsel. (Following the remand from the Supreme Court, the State moved for permission to file a supplemental brief which was granted. The State then filed a brief arguing it prevailed under the law existing at the time of the offenses and did not need to rely on the new law the Supreme Court ruled could not be applied to Carmell’s case. No response was filed by Carmell’s appellate counsel and the state court thereafter affirmed some of Carmell’s convictions.) Given appellate counsel’s complete failure to subject the State’s case to meaningful adversarial testing, the panel concluded that prejudice had to be presumed and that the state court’s rejection of the ineffective assistance claim was “an objectively unreasonable application of the Supreme Court’s clearly established Sixth Amendment jurisprudence.” The remedy is release unless the State grants Carmell an out-of-time appeal with the assistance of counsel.

For the Week of: 8/24/2008 Sixth Circuit reverses denial of sentencing phase relief to Ohio death row inmate. Last week, the Sixth Circuit (Cole with Clay; dissenting opinion by Batchelder) found that Reginald Jells was entitled to sentencing phase relief on his claims of ineffective assistance of counsel and suppression of evidence. Jells v. Mitchell, ___ F.3d ___, 2008 WL 3823058 (6th Cir. Aug. 18, 2008). Counsel was found to have been ineffective in (1) failing to prepare for the mitigation phase of the case until after Jells was convicted, and (2) failing to utilize a mitigation specialist to gather information about Jells’s background, including his educational, medical, psychological, and social history. In the panel majority’s view, the state court’s rejection of those ineffectiveness subclaims was based on an unreasonable application of Strickland. Notably, the mitigation phase expert was not contacted until after Jells was convicted. Further, prior to that counsel had not hired anyone to gather information about Jells’s background. The result was that the expert, who was asked to perform a psychological evaluation of Jells, was not provided with personal history records that were necessary for the evaluation. His testimony on behalf of Jells, therefore, was supported only by the limited tests that he had time to administer. As for what counsel actually did in terms of investigation, counsel spoke only with three family members even though other family members who had lived with Jells were available. Further, because counsel failed to ask “sufficiently probing questions” of the few family members who were contacted, counsel did not learn of the abuse inflicted on Jells by his mother’s live-in boyfriend and his stepfather. And, as in Wiggins, a report that counsel was in possession of contained “prodding” information that would have led reasonably competent counsel to expand the search for mitigation. Regarding counsel’s failure to retain a mitigation specialist to gather background information, Jells presented an affidavit from such an expert who counsel had initially requested assistance from but then failed to follow up on the request. The trial expert testified post-conviction that he could not recall being involved in a mitigation case where he was provided with no background materials to consider. The panel majority concluded: “While Jells’s counsel did not have a specific obligation to employ a mitigation specialist, they did have an obligation to fully investigate the possible mitigation evidence available.” As for Jells’s allegation that trial counsel were ineffective in failing to request a continuance of the penalty phase in order to gather mitigation evidence, the panel majority did believe that counsel should have done so but concluded that the state court’s deference to counsel’s decision to push forward did not involve an unreasonable application of Strickland. Also rejected was Jells’s allegation that counsel failed to have any mitigation strategy. The fact that counsel did have a strategy – to establish residual doubt and/or to present Jells as a suitable candidate for a life sentence – did not negate the earlier finding of deficient performance given that counsel failed to conduct the necessary mitigation investigation before deciding on the sentencing phase defense. Although not convinced that the state court reached the prejudice prong of the Strickland test, the panel majority found that to the extent the state court had done so, its finding of no prejudice was unreasonable. According to the panel majority, the evidence presented post-conviction painted a “significantly more detailed picture of Jells’s troubled background.” The panel majority concluded: “As opposed to the evidence presented at [trial], the additional evidence shows that Jells experienced significant learning disabilities which caused him great frustration and led to increasingly aggressive behavioral responses. This additional evidence further demonstrates that Jells experienced a profound sense of victimization due to his mother’s abusive relationships. In short, rather than being cumulative, this evidence provides a more nuanced understanding of Jells’s psychological background and presents a more sympathetic picture of Jells.” The panel majority also found that Jells was entitled to sentencing relief on a Brady claim. In its view, the withheld evidence undermined the prosecution theory that the victim was randomly kidnapped by Jells. Because kidnapping was an aggravating factor considered by the sentencing panel, the suppressed evidence was material. The denial of other claims was affirmed by the panel.

Third Circuit affirms grant of habeas relief as to Pennsylvania death row inmate’s sentence. Last week, the Third Circuit (Ambro, with Smith and Aldisert) affirmed the district court’s finding that Jesse Bond had been denied effective assistance of counsel at the sentencing phase of his capital trial. Bond v. Beard, ___ F.3d ___, 2008 WL 3852360 (3rd Cir. Aug. 20, 2008). The panel also affirmed the district court’s denial of relief on guilt-phase related claims of: (1) Batson violation; (2) Bruton violation; and (3) instructional error. At the sentencing phase of the trial, counsel called family members and friends who testified generally to Bond’s good character and willingness to assist others. During closing argument, the prosecutor argued that Bond’s “good core of family” should be held against him and that he deserved the death penalty considering how many people have much more horrible backgrounds. In post-conviction proceedings, Bond presented school records showing that he missed large amounts of school because of his impoverished background. Family members and friends also testified at the post-conviction proceeding, painting a very different picture than that heard by the jury. They revealed how Bond had “endured an extremely troubled and deprived childhood” and “[t]hey described Bond as having little to no chance of success given the character of his home and neighborhood.” Some witnesses also explained that trial counsel had only brief and perfunctory meetings with them during which counsel failed to inquire about family dynamics or background. Trial counsel also testified at the post-conviction proceeding and largely corroborated the family’s account of the contact. The record indicated that counsel had not obtained Bond’s school or hospital records. Although trial counsel did retain a mental health expert, primarily in regard to Bond’s capacity to waive his Miranda rights, counsel did not speak with the expert after receiving a report and did not inquire about the tests that had been administered or what had been learned about Bond’s background. The trial expert testified at the post-conviction proceeding that he lacked background information at the time of his evaluation of Bond and that Bond’s school and medical records raised the possibility of brain injury and a poor family environment. Also testifying at the post-conviction proceeding were two new mental health experts. They opined, among other things, that Bond had suffered from brain damage since childhood, and that he had Post Traumatic Stress Disorder. The Commonwealth presented its own expert who testified that the test results obtained by one of the new experts did not permit a diagnosis of brain damage that significantly impaired Bond’s ability to function. In denying relief on the claim, the state courts found, inter alia, that counsel could not be faulted for failing to uncover the abuse and family dysfunction that had not been mentioned by either Bond or his family members, and that counsel had explored mental health issues but received nothing helpful. Regarding the new mental health experts, the courts concluded that their opinions were thoroughly refuted by the Commonwealth’s expert. The panel found, in contrast: “Trial counsel did not investigate possible mitigating circumstances or ask experts to do so. Instead, counsel conducted an ad hoc and perfunctory preparation for the penalty phase the night before it began. Their ‘strategy’ relied on an uninformed guess as to the best available way to present Bond to the jury. We will not excuse this conduct on the ground that Bond and his family members did not tell counsel that his background provided fertile territory for mitigation arguments. Neither Bond nor his family had a duty to instruct counsel how to perform such a basic element of competent representation as the inquiry into a defendant’s background. They did not, as the Commonwealth suggests, have to volunteer ‘red flags’ about Bond’s mental health when trial counsel should have discovered that information through a basic inquiry into his background.” In concluding that the state court’s finding on the deficiency prong of Strickland was unreasonable, the panel found that the state court’s analysis was premised on its erroneous belief that counsel began meaningful preparation for sentencing prior the eve of the penalty phase. As for prejudice, because it was unclear whether that prong was addressed by the state supreme court, the panel looked instead to the post-conviction court’s lack of prejudice finding. Again, the panel found that the state court’s conclusion was premised on an unreasonable determination of the facts, i.e., the record did not support the finding that the post-conviction experts’s opinions were “thoroughly refuted” by the Commonwealth’s expert. In the panel’s view, Bond was prejudiced by the absence of expert testimony supporting several statutory mitigators, as well as the omission of evidence about the abuse and neglect Bond suffered as a child. It concluded: “Strickland permits relief where, as here, trial counsel presented some mitigation evidence but could have introduced evidence that was upgraded dramatically in quality and quantity.” The state court’s finding of no prejudice from counsel’s failure to present background evidence was either based on an unreasonable determination of the facts in comparing what was presented with Bond’s additional evidence, or on an unreasonable belief that controlling law precluded relief because some mitigating evidence had been presented.

Eleventh Circuit affirms the dismissal of another Florida death row inmate’s federal habeas petition on untimeliness grounds. Last week, the Eleventh Circuit (per curiam - Edmondson, Marcus and Pryor) affirmed the dismissal of Albert Holland’s habeas petition. Holland v. Florida, ___ F.3d ___, 2008 WL 3823706 (11th Cir. Aug. 18, 2008). The panel rejected Holland’s argument that he was entitled to equitable tolling due to his state post-conviction attorney’s “egregious” conduct. Holland’s motion for post-conviction relief was filed in the state court with less than two weeks remaining on the federal limitation period. During post-conviction proceedings, Holland pro se asked on two occasions that new counsel be appointed to represent him. The state opposed the motions and they were denied. After the post-conviction petition was denied, an appeal was filed in the state supreme court, along with an original habeas petition. Following oral argument, Holland twice sent letters to counsel inquiring about the status of the appeal and expressing concern about the federal limitation period. Post-conviction counsel responded to neither letter. Holland then contacted the Florida Supreme Court concerning use of its website in order for outside supporters to keep him updated about the status of his appeal. The court clerk then provided information to Holland about menu options on the website. In November 2005, the Florida Supreme Court affirmed the denial of Holland’s post-conviction motion and denied the habeas petition. The mandate issued on December 1, 2005, which restarted the federal limitations period under Eleventh Circuit precedent. Holland was not notified of the state supreme court’s ruling and again wrote to counsel on January 9, 2006, asking for information about the status of his appeal and his federal habeas petition. Post-conviction counsel did not respond. On January 18th, Holland visited the prison writ room and finally learned that his appeal had been unsuccessful. On January 19th, Holland received a letter from his post-conviction attorney explaining that he intended to file a petition for writ of certiorari in the Supreme Court concerning the state court’s denial of the post-conviction relief motion. Holland called his attorney that day and also filed a pro se federal habeas petition. State post-conviction counsel was eventually replaced in federal court with a different attorney who argued for equitable tolling. The panel began by reiterating that mere negligence by appointed counsel is not a basis for equitable tolling. According to the panel, “no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care–in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part–can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling. Pure professional negligence is not enough.” Next, the panel rejected Holland’s claim that the failure of the state supreme court to provide oversight of appointed counsel justified equitable tolling. And as for the lack of personal notice of the state supreme court’s ruling, the panel pointed to the absence of evidence that Holland ever requested such notice. In addition, a letter from the state supreme court that Holland alleged should have, but did not, included notice of the adverse ruling, was dated after the federal limitations period had already expired. Similarly, a denial of access to the prison writs room did not provide the basis for equitable tolling as it too occurred after the statute of limitations for filing the federal habeas petition had expired. Given this timing, Holland could not argue that the two incidents prevented him from timely filing the federal petition. Finally, the panel found that Holland was not entitled to an evidentiary hearing on equitable tolling as Holland offered no reason why a hearing would help him demonstrate the requisite extraordinary circumstances needed to justify equitable tolling.

Ninth Circuit affirms grant of habeas relief to Arizona death row inmate in pre-AEDPA case. Last week, the Ninth Circuit (Pregerson, with W. Fletcher and Bybee) affirmed the grant of habeas relief to Jasper McMurtrey on a Pate claim. McMurtrey v. Ryan, ___ F.3d ___, 2008 WL 3863860 (9th Cir. Aug. 21, 2008). The panel ruled: “McMurtrey’s memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey’s mental competence to stand trial. The state trial court’s failure to conduct a competency hearing at that time violated McMurtrey’s due process rights. The retrospective competency hearing held thirteen years after trial was insufficient to cure this due process violation.” Because this issue was dispositive, the panel did not reach the remaining issues in the warden’s appeal or McMurtrey’s cross-appeal.

For the Week of: 7/20/2008 Fifth Circuit affirms grant of habeas relief to Texas death row inmate. On July 22, 2008, the Fifth Circuit (King, with Davis and Clement) affirmed the grant of habeas relief to Robert Fratta based on a Confrontation Clause violation. Fratta v. Quarterman, ___ F.3d ___, 2008 WL 2802051 (5th Cir. July 22, 2008). Fratta was charged with hiring two men, Guidry and Prystash, to murder his wife. The trial court admitted into evidence custodial statements made by Guidry and Prystash even though the men were tried separately and did not appear at Fratta’s trial. Also admitted into evidence was testimony from Prystash’s girlfriend about statements Prystash had allegedly made to her. Although the State appealed the grant of relief, it did not challenge the district court’s finding that admission of the custodial confessions violated the Confrontation Clause even under pre-Crawford law. Instead, the State contested only the district court’s conclusion that admission of statements made to the girlfriend violated Fratta’s constitutional rights. The State did not defend the state court’s rationale for finding that the statements were properly admitted, which relied in part on the inapplicable Bruton line of cases and the co-conspirator exception to the hearsay rule, but argued instead that the statements were nevertheless admissible in accordance with then-existing Supreme Court precedent because they possessed sufficient indicia of reliability. The State contended that the district court misapplied § 2254(d) by improperly reviewing the state appellate court’s reasoning instead of looking to its ultimate decision. The panel responded: “[I]n assigning meaning to the ‘contrary to’ clause, the [Supreme] Court clearly has contemplated that a federal court will sometimes look beyond the state court’s ultimate decision—for example, to determine if the state court applied a rule that contradicts governing law. Additionally, while it is certainly true that when the state court has identified the correct governing legal principle, the federal court’s ‘unreasonable application’ determination is limited to examining the state court’s ultimate legal conclusion (and not the ‘method by which the state court arrives at its conclusion’), in other situations the ‘unreasonable application’ determination may permissibly take a different form—for example, the question whether the state court has ‘unreasonably extend[ed] a legal principle . . . to a new context where it should not apply (or unreasonably refuse[d] to extend a legal principle to a new context where it should apply),’ will certainly require consideration of more than the state court’s ultimate decision. The bottom line is that satisfaction of either the ‘contrary to’ or the ‘unreasonable application’ test—under any of the multiple scenarios described by the Court—will free the federal court from the constraints of Section 2254(d)(1).” (Citations omitted.) The panel then expressed agreement with the district court’s finding that § 2254(d) did not preclude the federal courts from granting relief to Fratta in light of the state appellate court’s flawed analysis. Turning to the merits, the panel was not persuaded that the statements at issue were sufficiently trustworthy to be admissible under the Confrontation Clause. The panel pointed out that the statements minimized Prystash’s role in the killing and assigned the role of triggerman to Guidry. In addition, the statements were made following the girlfriend’s repeated questioning and thus were not completely spontaneous. Also, while portions of the statements were self-incriminating, the girlfriend had known about a plan to kill the victim so a complete denial of involvement was not likely to have been plausible. Further, because the girlfriend had been angry about the idea of the victim being killed, and because Prystash depended upon her for support, Prystash had an incentive to minimize or distort his level of involvement. Finally, the panel noted that it had previously found that admission of the same statements violated the Confrontation Clause when presented at Guidry’s the trial. In a footnote, the panel observed: “We note that should the State seek to re-try Fratta, the question of the admissibility of the custodial confessions and Prystash’s statements to [his girlfriend] will not be governed by the reliability framework established in Roberts. Instead, the Confrontation Clause analysis will focus on whether these statements are ‘testimonial.’ Since neither party has argued that the statements should or should not be considered ‘testimonial,’ or even argued that this question has any relevance to Fratta’s habeas petition, we of course offer no opinion on this issue.” (Citations omitted.) The panel concluded by agreeing with the district court’s finding that admission of the custodial confessions and the girlfriend’s testimony was prejudicial under Brecht, a finding that the State did not contest.

Oklahoma Governor approves parole board´s clemency recommendation in capital case According to the Governor´s press release: Governor Brad Henry today approved clemency for death row inmate Kevin Young, commuting his sentence to life without the possibility of parole as recommended by the State Pardon and Parole Board. “This was a very difficult decision and one that I did not take lightly,” said Gov. Henry. “I am always reluctant to intervene in a capital case, and I am very respectful of a jury’s verdict, the prosecutors who tried the case and the victim’s family who suffered because of the crime. “However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence. “As a result, Kevin Young will be punished by serving the rest of his life behind bars without the possibility of parole.” Young was sentenced to death in 1996 after exchanging gunfire and killing a man during a botched robbery attempt of an illegal gambling operation. Earlier this month, the Pardon and Parole Board asked Gov. Henry to grant Young clemency and commute his death sentence. In testimony presented at the board’s clemency hearing, Young’s attorneys argued the shooting was not premeditated and did not merit a capital sentence. They noted their client turned down a plea agreement in his original trial that would have given him a life sentence. Before making his decision, the governor reviewed Young’s case file and personally interviewed both prosecutors and defense attorneys. This is only the second time during his tenure in office that Gov. Henry has granted a clemency recommendation in a death penalty case.

Federal district court enters judgment against California death row inmate. On July 22, 2008, United States District Judge Charles Breyer of the Northern District of California issued an order granting the warden’s motion for summary judgment on all claims raised by Robert Fairbank, although summary judgment was granted without prejudice on two claims. Fairbank v. Ayers, C 98-1027-CRB (N.D. Cal.). A claim on incompetency to be executed was premature. A challenge to California’s lethal injection protocol was moot because the protocol has been changed. Breyer ruled that Fairbank could bring a challenge to the present protocol in a separate § 1983 action. The claims and subclaims denied with prejudice were: (1) ineffective assistance by original trial counsel for obtaining inculpatory evidence that was later ordered revealed to the prosecution; (2) ineffective assistance by trial counsel in pretrial proceeding for: (a) failing to use statements by the victim’s family opposing the death penalty to persuade the district attorney not to charge Fairbank with first degree murder or seek the death penalty, (b) conceding Fairbank’s guilt during voir dire and informing prospective jurors that they would only decide degree of murder and whether the alleged special circumstances were true, and (c) failing to ask all prospective jurors about drug use; (3) ineffective assistance by trial counsel in the guilt phase for: (a) failing to make an opening statement and only briefly cross-examining certain prosecution witnesses prior to Fairbank’s entry of a guilty plea, (b) failing to present mental state defenses and instead advising Fairbank to plead guilty without any reciprocal benefits, and (c) advising Fairbank to admit the truth of the torture and attempted oral copulation special circumstances; (4) ineffective assistance of counsel at the penalty phase for: (a) assisting the prosecution by presenting evidence that Fairbank is a sociopath who does not suffer from mental illness, (b) failing to conduct an adequate mitigation investigation and failing to adequately guide and provide information to the defense expert, (c) failing to adequately cross-examine witnesses about the circumstances of the homicide and possible impairment of Fairbank’s mental state, and failing to provide evidence about his mental state at the time of the capital offense, (d) having an expert testify generally about the effects of cocaine instead of recounting Fairbank’s history of substance abuse, (e) referring to Fairbank in negative terms during argument, and (f) failing to object to the introduction of inflammatory photographs of the victim and failing to object to their placement close to the jury; (4) ineffective assistance of counsel for failing to litigate a motion for new trial; (5) cumulative effect of deficient performance during pre-trial and guilt proceedings prejudiced Fairbank; (6) trial counsel’s deficient performance amounted to a breakdown in the adversarial process requiring a presumption of prejudice; (7) ineffective assistance by appellate and state habeas counsel for failing to preserve evidence, investigate relevant issues, adequately consult with Fairbank, adequately research issues, and present all known issues to the state supreme court; (8) trial court erroneously denied post-trial motion to withdraw guilty plea which was based on Fairbank’s assertion that he had been intoxicated from medications and jail wine at the relevant time; (9) trial court erred by accepting only a stipulated factual basis for Fairbank’s guilty plea; (10) trial court erred by accepting Fairbank’s admission that the special circumstance allegations were true; (11) trial court erred at time it accepted admission of the torture special circumstance because it failed to advise Fairbank of the intent element; (12) jailhouse informant acted as prosecution agent; (13) prosecutorial misconduct by: (a) making incorrect, inflammatory and prejudicial statements during penalty phase closing argument, and (b) eliciting testimony about a racial slur made by Fairbank after a defense objection had been sustained; (14) trial court erred by admitting a barbeque fork as a possible murder weapon; (15) trial court committed prejudicial error by admitting evidence of a prior offense to show motive and intent; (16) trial court erred by failing to instruct jury to consider with caution jailhouse informant’s testimony about Fairbank’s attempt to prevent witnesses from testifying; (17) trial court erred in failing to grant cause challenge to biased juror and defense counsel was ineffective in failing to utilize a peremptory challenge to remove the juror; (18) trial court erred at guilt and penalty phase by admitting gruesome photographs of the victim’s body as it appeared when found and at the autopsy; (19) Fairbank was incapable of forming the requisite intent to commit first degree murder because he suffered from organic brain damage, depression, attention deficit disorder, PTSD, alcoholism, drug addiction and substance abuse; (20) denial of fair consideration of the automatic appeal; (21) the death penalty is inherently cruel and unusual and not fairly imposed; (22) California’s statutory scheme fails to adequately narrow the class of death-eligible murderers; (23) California’s definition of first degree murder is unconstitutionally vague and overbroad; (24) execution by lethal gas is cruel and unusual; (25) California’s death penalty statute is unconstitutional because it fails to designate which statutory sentencing factors are aggravating and which are mitigating, it fails to require a unanimous finding that death is the appropriate sentence beyond a reasonable doubt, and it fails to require written findings regarding the sentencing factors; (25) death sentence was disproportionate to the crime; and (26) cumulative error.

Eleventh Circuit affirms denial of habeas relief in Florida capital case. On July 23, 2008, the Eleventh Circuit (Pryor with Birch and Black) affirmed the denial of Melvin Trotter’s habeas petition. Trotter v. Secretary, Dept. of Corrections, ___ F.3d ___, 2008 WL 2813862 (11th Cir. July 23, 2008).

Claim of ineffective assistance of counsel regarding performance at competency proceedings fails in non-capital habeas case. Non-capital federal habeas petitioner cannot succeed on claim of ineffective assistance of counsel based on his trial counsel’s performance at a competency hearing because of the absence of clearly established Supreme Court precedent supporting the claim. Crawley v. Dinwiddle, ___ F.3d ___, 2008 WL 2805410 (10th Cir. July 22, 2008). Trial counsel had requested that Crawley undergo a competency determination. The request was premised on counsel’s concern that Crawley’s obsession with matters irrelevant to his defense was interfering with his ability to communicate with counsel. The mental health expert appointed by the court to evaluate Crawley concluded that Crawley was unable to consult with his attorney and rationally assist in the preparation of his defense. Crawley disagreed with the assessment, believing himself to be competent and wanting to stand trial. At the competency hearing, the government called the expert and argued that Crawley was not competent. Suppressing his misgivings and acquiescing to his client’s wishes, defense counsel successfully argued to the jury that the evidence supported a finding of competence despite the expert’s contrary. Following his conviction, Crawley alleged, among other things, that his trial attorney had rendered deficient performance by adhering to Crawley’s preference to be found competent despite counsel’s personal opinion on the matter and the opinions of the expert and prosecutor. In affirming the denial of relief, the Tenth Circuit found, among other things: “The Supreme Court has yet to consider a factual scenario analogous or similar to that presented here. It has concluded ‘[t]he Constitution does not permit trial of an individual who lacks ‘mental competency.’” Indiana v. Edwards, 554 U.S. -- , 128 S. Ct. 2379, 2383 (2008). On the other hand, it has approved of procedures similar to those employed here. See Drope v. Missouri, 420 U.S. 162, 172-73 (1975). The broad principle proscribing the trial of mentally incompetent individuals does not sufficiently inform the debate here. A much more specific rule would be necessary to upset the [Oklahoma Court of Criminal Appeals’] decision.”

Eighth Circuit refuses to expand COA to include argument that federal death row inmate had a statutory right to have § 2255 proceedings stayed because of inmate’s present incompetence. In affirming the denial of Jeffrey Paul’s § 2255 petition, the Eighth Circuit (Colloton with Beam and Benton), refused to expand the COA to include Paul’s argument that he has a statutory right to be competent during habeas proceedings. Paul v. United States, ___ F.3d ___, 2008 WL 2796725 (8th Cir. July 22, 2008). (A COA had only been granted on the issue of whether there is a constitutional right to competence during federal habeas proceedings, an issue Paul did not argue directly in his briefing, focusing instead on whether a right to competence is grounded in federal law.) In finding expansion of the COA inappropriate here, the panel looked to the specific facts of the case. It noted that the alleged incompetence did not arise until November 2003, following a suicide attempt. As of that date, however, Paul’s 344-page habeas petition had already been filed, the government had responded, and the district court had issued its ruling. Thus, “[t]o the extent counsel needed assistance from Paul in developing facts outside the record, that work was completed before November 2003. . . . Once a habeas corpus motion is submitted to the court, and the parties are merely awaiting a decision, there is no need for rational communication between counsel and client in furtherance of the motion.” And assuming there is a right to competence during the § 2255 appeal process, the panel saw “no reason to conclude that Paul’s 191-page application for a certificate of appealability winnowed the issues on appeal in a way that may have prejudiced a petitioner who could not communicate rationally with counsel.” The panel also expressed skepticism about the merits of Paul’s claimed statutory right to competence but declined to create a circuit split on the issue given that the district court had made a finding during the course of the habeas proceedings that Paul was competent to proceed. (The competency finding was made based on the district court’s communication with Paul when he was affirmatively seeking to be executed, a position he later withdrew. The district court rejected habeas counsel’s request for a mental health evaluation, despite a psychiatrist’s declaration opining that recent phone conversations with Paul had led the expert to believe that Paul was suffering from a serious psychotic illness. This expert did examine Paul while the appeal was pending and opined Paul was not competent to assist counsel in the appeal. A motion to remand the case to the district court in light of this finding was denied.) In the panel’s view, the district court’s competency finding was adequately supported by the record, which included findings of competence at the time of the federal capital trial. Further, the panel could see no potential prejudice to Paul from the alleged incompetence given when it arose in the course of the proceedings.

Pennsylvania Supreme Court issues two decisions addressing the question of whether a death row inmate can be forced to take medication in order to render him competent for purposes of participating in post-conviction proceedings. Incompetent death row inmate may be compelled to take psychiatric medication in order to render him competent to determine whether he wants to pursue relief in state post-conviction proceedings. Commonwealth v. Watson, ___ A.2d ___, 2008 WL 2806576 (Pa. July 22, 2008). If the inmate cannot be rendered competent with medication, and a suitable next friend cannot be identified, the proper result is the dismissal of any pending petition rather than a stay of post-conviction proceedings. Commonwealth v. Sam, ___ A.2d ___, 2008 WL 2853095 (Pa. July 22, 2008). (In Watson, the incompetent death row inmate sought to dismiss the post-conviction proceedings. In Sam, an unauthorized post-conviction relief petition had been filed on behalf of the incompetent inmate.)

Pennsylvania Supreme Court affirms finding that death row inmate is mentally retarded and exempt from execution. On July 23, 2008, the Pennsylvania Supreme Court affirmed the post-conviction court’s order vacating Joseph Miller’s death sentence after holding an Atkins hearing and finding that Miller is mentally retarded. Commonwealth v. Miller, ___ A.2d ___, 2008 WL 2814668 (Pa. July 23, 2008). (The Commonwealth had conceded that Miller met the limited intellectual functioning and age of onset criteria for a diagnosis of mental retardation. The dispute was on the adaptive functioning prong of the test. The Commonwealth presented one expert who expressed the opinion that Miller had been mentally retarded at the time he arrived at death row but was no longer mentally retarded because he was able to adapt there. Another expert called by the Commonwealth opined that Miller’s adaptive improvements began to manifest in adulthood and that they would translate to the community should Miller be released from prison. The Commonwealth also urged that Miller’s criminal sophistication undermined his claim of adaptive deficits.) On appeal, the sole argument raised by the Commonwealth was that the post-conviction judge, who had also been the trial judge, should have recused herself. The recusal motion had been premised on statements made prior to Miller’s capital trial when the judge rejected a waiver of a jury. Because the judge had presided over pretrial motions, she had been privy to prejudicial evidence that would be inadmissible at the actual trial and therefore found herself to be “less than an impartial fact-finder.” The Commonwealth contended that those remarks created an appearance of impropriety and/or tended to undermine public confidence in the judiciary. In rejecting the recusal motion, the judge explained that the prior remarks were limited to a specific issue – Miller’s guilt or innocence – that was not relevant to the Atkins determination. The Pennsylvania Supreme Court held that the judge did not abuse her discretion in denying the recusal motion.