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.

Pennsylvania Supreme Court affirms finding that death row inmate received ineffective assistance from his trial counsel at resentencing proceedings. On July 24, 2008, the Pennsylvania Supreme Court affirmed the post-conviction court’s grant of penalty phase relief to David Sattazahn. Commonwealth v. Sattazahn, ___ A.2d ___, 2008 WL 2873554 (Pa. July 24, 2008). In finding support for the post-conviction court’s ruling that trial counsel’s mitigation investigation was deficient, the court noted that trial counsel should have reviewed the court file related to a crime that was used by the prosecutor as aggravation. Had counsel done so, he would have discovered a department of corrections report that contained red flags concerning potential mental health and/or cognitive impairment. The evidence also “support[ed] the conclusion that the failure to pass several grades during early childhood development, and the subsequent placement in a special class, strongly suggests potential mental, cognitive, emotional, and/or social difficulties which would bear investigation in defending against the imposition of the death penalty.” The lower court’s conclusion that the truncated investigation was not the result of reasonable strategy was supported by the record. Notably, the investigation “touched upon only a limited set of sources and yielded a highly truncated mitigation presentation,” i.e., two witnesses. (The court summarized the testimony of the mitigation witnesses as follows: “[Sattazahn’s] former employer merely testified to his recollection that [Sattazahn] was faithful to his job during the two years of the employment. On direct examination, [Sattazahn’s] mother testified that [Sattazahn] was her only child and was a good child who did not get into a lot of trouble, advanced to the ninth grade, worked at several jobs, and treated her and her husband well. She also related that her husband traveled during [Sattazahn’s] upbringing and had had a heart attack. Finally, at trial counsel’s instance, she asked the jury to spare [Sattazahn’s] life.”) In discussing prejudice, the court acknowledged that there was substantial aggravation in this case. In addition to the capital offense, a murder in the course of a robbery, Sattazahn has a history of violent offenses, including two murders. Nevertheless, prejudice was found. The mitigating evidence presented in the post-conviction proceedings included extensive medical and scientific evidence and testimony regarding “neglectful parenting, social isolation and impaired social development, significant educational impairments and learning disabilities, odd risk-taking behaviors, organic brain damage, mental illness and other potential statutory mitigators.” Sattazahn’s challenges to his conviction were rejected. Also rejected was Sattazahn’s claim that his original trial attorney was ineffective in advising him that if he successfully appealed his conviction after receiving a life sentence as a result of a hung sentencing jury, that a death sentence could not be sought at a subsequent retrial. The primary weakness in the claim, according to the court, was Sattazahn’s failure to establish by credible evidence that he would have forgone the appeal had he known that the State could seek death a second time, as it in fact it did. The court did not accept the assumption that a defendant would not risk a possible death sentence in order to gain a chance at freedom.

For the Week of: 6/22/2008 California death row inmate entitled to habeas relief as to special circumstance that created death eligibility On June 24, 2008, the Ninth Circuit (Reinhardt with Gould and Paez) ruled in a pre-AEDPA case that Henry Duncan was denied the effective assistance of counsel at the guilt-innocence phase of his capital trial due to his attorney’s failure to investigate and present evidence that blood samples found at the crime scene that did not match the victim also did not match Duncan. Duncan v. Ornoski, ___ F.3d ___, 2008 WL 2498104 (9th Cir. June 24, 2008). Such evidence would have supported an inference that an accomplice was involved in the robbery-murder and that it was the accomplice who was the actual killer. (The prosecution’s own theory was that a single assailant killed the victim even though two knives were used. This was because of the extremely small area where the actual murder occurred.) That Duncan had admitted to counsel that he had been present at the crime scene, which was one of two reasons provided by counsel for his failure to determine Duncan’s blood type, did not justify counsel’s lack of investigation given that Duncan also told counsel that he had not been the actual killer or aided in the victim’s death. Counsel’s second reason for the omission, that he did not want to further tie Duncan to the crime scene, was unpersuasive given the fingerprint and palm print evidence already tying Duncan to the scene and the fact that counsel would not have had to reveal Duncan’s blood type to the prosecution. Not considered by the panel were statements allegedly made by trial counsel to a prosecutor that Duncan had refused to take a blood test and had informed counsel that he had been wounded at the scene so the blood samples would prove to be his. The panel observed that while the district court had found that these statements could provide an additional reason for forgoing investigation of Duncan’s blood type, the district court neither found that these were the actual reasons for counsel’s inaction or that counsel had in fact made the statements at issue. The panel then pointed out that the Supreme Court has admonished reviewing courts not to substitute their own strategic reasoning for that of trial counsel in order to justify counsel’s performance. The panel similarly rejected the warden’s contention that counsel justifiably proceeded as he did because Duncan had admitted to counsel that he committed the murder. Again, the district court did not find this to be counsel’s reason for failing to consult with a serologist and ascertain his client’s blood type and the record did not support such a finding. In addition, even if an admission by Duncan had provided the basis for counsel’s inaction, the omission would still be unreasonable in light of the duty to investigate regardless of a client’s admissions and the glaring inconsistencies in Duncan’s reported accounts of the murder. In addition, assuming it were true that Duncan refused to permit blood testing, the panel found that counsel could have sought the blood type information from alternative sources or, after consulting with an expert, could have assured Duncan that his blood could be typed confidentially. Because the evidence was sufficient to establish Duncan’s presence at the crime scene, and the killing clearly occurred during a robbery, counsel’s deficiency was not prejudicial as to Duncan’s felony-murder conviction. It was prejudicial, however, regarding the robbery-murder special circumstance found by the jury which had made Duncan eligible for the death sentence he ultimately received. This was because under the law in effect at the time of the homicide the special circumstance could be applicable to Duncan only if he was the actual killer or, if an accomplice, he had harbored the intent that the victim be killed. Given that the new serological evidence undermined the prosecution theory that Duncan personally killed the victim, and the record did not establish beyond a reasonable doubt that Duncan had the required mental state as an accomplice, he was entitled to habeas relief as to the special circumstance. The district court’s contrary finding was based in part on its conclusion that Duncan had failed to present conclusive proof that the blood samples were not at the scene prior to the murder. Such a tough burden was the incorrect standard, however, since Duncan was only required to undermine confidence in the jury’s verdict, Because the panel’s holding regarding the special circumstance necessarily invalidated the death sentence, the panel did not reach the merits of Duncan’s “likely meritorious” claim that counsel had also rendered deficient performance at the sentencing phase of the trial. In a separate unpublished memorandum, the panel affirmed the denial of Duncan’s remaining challenges to his murder conviction.

Cert granted in non-capital habeas case out of the Ninth Circuit On June 27, 2008, the United States Supreme Court granted the warden’s certiorari petition in Knowles v. Mirzayance, 07-1315. The Ninth Circuit (Hug, Wardlaw and United States District Judge Suko of the Eastern District of Washington) in April 2006 had ruled in an unpublished memorandum that Mirzayance was entitled to habeas relief on a claim that trial counsel rendered ineffective assistance by advising Mirzayance to withdraw a plea of not guilty by reason of insanity. A certiorari petition by the warden was granted by the Supreme Court, the judgment vacated, and the case remanded for consideration of Carey v. Musladin, 127 S.Ct. 649 (2006). On remand, the panel majority (Hug and Wardlaw) in November 2007 found that Musladin did not effect its prior decision. Judge Suko dissented. The questions presented in the latest certiorari petition are: (1) Did the Ninth Circuit again exceed its authority under § 2254(d) by granting habeas relief without considering whether the state-court adjudication of the claim was "unreasonable" under "clearly established Federal law" based on its previous conclusion that trial counsel was required to proceed with an affirmative insanity defense because it was the only defense available and despite the absence of a Supreme Court decision addressing the point? (2) May a federal appellate court substitute its own factual findings and credibility determinations for those of a district court without determining whether the district court’s findings were "clearly erroneous”?

Texas death row inmate entitled to de novo consideration of mental retardation claim by federal court On June 26, 2008, the Fifth Circuit sitting en banc issued a per curiam decision finding that Eric Moore’s Atkins claim could be considered by the federal court and without application of § 2254(d). Moore v. Quarterman, ___ F.3d ___, 2008 WL 2521893 (5th Cir. June 26, 2008) (en banc). Moore had filed a successive state habeas petition shortly after the Atkins case was decided. The Texas Court of Criminal Appeals (TCCA) rejected the petition under its abuse of the writ rule. Moore then received authorization from the Fifth Circuit to file a successor federal habeas petition raising the Atkins claim. Following an evidentiary hearing, the district court found that Moore had proved his mental retardation and granted the writ. On appeal, a divided panel concluded that Moore’s claim was unexhausted in that it had not been fairly presented to the state court. Because federal review was therefore precluded, the panel majority did not address the merits of the claim. The en banc court observed that the question of whether or not Moore had exhausted his claim was subject to reasonable debate. It concluded, however, that it did not need to resolve the exhaustion question because, under the unique circumstances of this case, there was cause for Moore’s default and prejudice in the absence of federal review. The court explained: “Moore had cause for misunderstanding the state’s successive writ procedures because, when he filed his Atkins petition on December 26, 2002, the TCCA had published no opinion explaining the factual criteria that must be pled in an Atkins petition, nor had such criteria become evident in practice, arising from the unpublished disposition of similar petitions. . . . Moreover, Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule, yet only a few months had passed before Moore filed his petition, and the State had not taken any definitive action. Moore could not exhaust a remedy that the TCCA had not yet articulated; this ‘cause’ was external to Moore and beyond his control. Further, Moore would plainly suffer prejudice from being unable to establish the facts involved in his mental retardation claim. Moore’s mass of evidence, taken at face value, presented a substantial Atkins claim.” Given the showing of cause and prejudice, the district court had authority to review the claim, even if it was unexhausted, “and was under no obligation to defer to the state court’s decision.” The case was returned to the three-judge panel to review the district court’s finding of mental retardation under the clear error standard.

Fourth Circuit reverses in part denial of habeas relief in North Carolina death penalty case. On June 24, 2008, the Fourth Circuit (Michael with Gregory; Duncan dissenting in part) reversed the district court’s finding that William Gray, Jr., had not been deprived of the effective assistance of counsel at the sentencing phase of his capital trial because of counsel’s failure to investigate and develop evidence of Gray’s impaired mental condition. Gray v. Branker, ___ F.3d ___, 2008 WL 2502144 (4th June 24, 2008). The state court’s rejection of the claim involved an unreasonable application of both prongs of the Strickland test. The victim in the case was Gray’s estranged wife who had initiated divorce proceedings against Gray. Although trial counsel “were confronted repeatedly with indications of Gray’s mental impairment,” they nevertheless, “without making reasoned strategic decisions,” ignored the “red flags” and failed to investigate mental health issues or even consider introducing such evidence. The “red flags” included: (1) affidavits from two professionals in connection with the divorce proceedings who warned explicitly about Gray’s mental instability; (2) friends and associates of Gray had reported that Gray had been “very disturbed,” “very agitated,” not “in his right mind,” and “distraught” over the breakup of his marriage; (3) after the killing, Gray was placed on suicide watch because jailers found him to be depressed and having anxiety attacks and fainting spells; (4) a friend who spoke with Gray by phone while he was in jail described him as “not . . . one hundred percent rational”; and (5) a psychiatrist who evaluated Gray about his capacity to proceed to trial, who was provided little background information, nevertheless opined that Gray suffered from “regression in behavior and reductions in impulse control” at the time of the offense. Although counsel did broach the possibility of hiring an independent psychiatrist as recommended by the competency evaluator, and Gray vehemently vetoed the idea at the time, the panel majority found that this did not absolve counsel of the duty to investigate Gray’s mental health. It noted, among other things, the then-prevailing ABA Guideline 11.4.1.c. (1989), as well as the fact that the only time the issue was raised was pre-indictment which was well before the state announced its intention to seek the death penalty. The panel further found that the state post-conviction (MAR) court’s contrary findings about counsel’s performance were flawed because the MAR court did not consider that counsel’s failure to investigate Gray’s mental state prevented counsel from making an informed decision about what strategy to pursue. In addition, common sense refuted the MAR court’s conclusion that the accident defense that was presented was inconsistent with mental health evidence. As for Gray’s assertion to counsel that nothing was wrong with him, “a reasonable lawyer would not rely on his client’s self-assessment of his mental health, especially in a capital case.” A finding by the MAR court that Gray’s refusal to fund the psychiatric evaluation ended the duty to inquire could not stand up because clear and convincing evidence rebutted the MAR court’s other finding that Gray was not indigent at the time of trial. (Gray had initially hired counsel but later placed all of his assets in an irrevocable trust for his children.) The panel rejected the state’s urging that it extend the Supreme Court’s decision in Landrigan to the facts of this case, such that counsel’s acceptance of Gray’s early views on mental health evidence precluded relief. Instead the panel majority found: “Nothing in [Landrigan] permits Gray’s statement to be used to relieve his counsel of their duty to investigate for mitigating mental health evidence.” Regarding prejudice, the panel majority concluded that the MAR court’s finding of no prejudice was both contrary to and involving an unreasonable application of Strickland. Gray presented evidence that with an adequate investigation, counsel could have introduced evidence supporting two statutory mitigators. Notably to the panel majority, in the MAR proceeding Gray presented an attorney “expert” who testified to the importance of medical witnesses concerning mental health issues. The panel majority concluded that “the two mental health mitigating factors – largely ignored by defense counsel – were Gray’s best hope of convincing the jury that he did not deserve the death penalty. The missing expert evidence on Gray’s impaired mental condition would have provided the essential support for these factors.” Furthermore, “[g]iven the significance of the mental health evidence, there is a reasonable probability that a competent lawyer would have introduced it at sentencing.” As for the MAR court’s dismissal of one expert’s testimony because he had not read the entire record or interviewed some background witnesses prior to reaching a diagnosis of Gray, the panel majority noted that DSM-IV had no such requirement and found that the MAR court’s dismissal of the testimony was objectively unreasonable. The panel majority did affirm the denial of Gray’s conflict of interest claims, as well as an ineffective assistance of counsel claim related to the failure to investigate and present forensic evidence.

Denial of habeas relief to North Carolina death row inmate affirmed by Fourth Circuit. On June 25, 2008, the Fourth Circuit (Michael with Williams and Motz) in an unpublished opinion affirmed the denial of habeas relief to Darrell Strickland on claims of a Brady violation and ineffective assistance of counsel at the sentencing phase of the trial. Strickland v. Branker. In addressing the Brady claim, the panel independently assessed the merits of the claim because it was supported in part by an affidavit that had not been considered by the state post-conviction (MAR) court. Although the suppressed statement contradicted in part the testimony of the victim’s wife regarding whether the victim had made a racial slur directed at Strickland, it was nevertheless found not to be material. (At trial, the victim’s wife had denied hearing the exchange that preceded the shooting.) The panel noted that Strickland’s confession referenced the slur and the jury had little reason to disbelieve the claim that a slur motivated the shooting. As for the sentencing-related claim, the panel rejected the claim on the ground that Strickland could not establish prejudice. Strickland had alleged that counsel performed deficiently in failing to present evidence related to a prior killing that had been offered in aggravation. The omitted evidence indicated that the victim had fired an initial shot at Strickland. In the panel’s view, this evidence would not have significantly altered the balance of aggravating and mitigating evidence that was presented at trial. It pointed out that the jury knew that Strickland had been convicted of voluntary manslaughter rather than the more serious charge of first degree murder. Moreover, the evidence at issue had been presented at Strickland’s earlier trial and the jury had rejected Strickland’s claim of self-defense. Further, had Strickland presented the evidence at issue during the capital sentencing proceeding, the state would have been able to present rebuttal evidence indicating that Strickland not only shot the victim several times, but this included firing the gun while standing directly over the victim after he had fallen in the street. Further, the omitted evidence did nothing to mitigate an additional prior violent act that had been presented as aggravation.

Sixth Circuit affirms denial of habeas relief to Ohio death row inmate. On June 26, 2008, the Sixth Circuit (Siler with Batchelder and Sutton) affirmed the denial of habeas relief to Mark Brown. Brown v. Bradshaw, ___ F.3d ___, 2008 WL 2520454 (6th Cir. (Ohio) June 26, 2008). The sole issue for which Brown received a COA was a claim of juror coercion. The claim was based on an instruction given to the jury during sentencing phase deliberations after the jury indicated it was deadlocked on the sentencing recommendation for one of the two counts of capital murder. The trial court gave the jury a supplemental instruction based on Allen v. United States, 164 U.S. 492 (1896), but modified it to fit a sentencing decision. After the instruction, the jury returned with a life recommendation for one murder and a death recommendation for the other. Upon polling the jury, one juror stated that she had rendered a compromise verdict. The jury was returned to deliberate after being reread the original sentencing instructions. The same verdicts were ultimately recommended. In state proceedings, the juror who had initially stated she compromised alleged that she had been bullied into changing her vote after the modified Allen instruction. Her affidavit was found to be inadmissible, however. Brown, relying on Lowenfield v. Phelps, 484 U.S. 231 (1988), argued that the death verdict had been coerced. The panel found that the supplemental instruction did not violate clearly established federal law as it was no more coercive than the Allen charge and, like the supplemental instruction in Lowenfield, it merely encouraged the jurors to consider other views and ask whether their own were reasonable under the circumstances. In addition, the post-verdict polling which revealed the compromise verdict did not violate clearly established federal law. As for Brown’s claim that the case should have been removed from the jury after the initial deadlock was announced, the argument relied on state law and so could not provide the basis for federal habeas relief. Brown’s additional argument that the alleged coercion of the juror violated Mills v. Maryland because it precluded consideration of mitigating factors was procedurally defaulted since it had not been raised in state court. Finally, regarding Brown’s request for discovery and an evidentiary hearing concerning the juror coercion claim, the panel ruled: “Discovery and an evidentiary hearing on this issue would be futile because such evidence is inadmissible under Ohio law, Ohio R. Evid. 606(B), and Brown has not established any constitutional impediment to enforcing this state evidentiary rule.”

Eleventh Circuit denies permission for Florida death row inmate to file successor federal habeas petition. On June 27, 2008, the Eleventh Circuit (per curiam - Dubina, Carnes and Hull) issued an opinion denying Mark Schwab’s application for permission to file a second federal habeas petition. In re Schwab, ___ F.3d ___, 2008 WL 2553056 (11th Cir. June 27, 2008). Schwab’s application was based on the changed opinion by a state’s expert about some aspects of Schwab’s mental and emotional problems. Schwab argued that this new evidence supported statutory mitigating circumstances establishing that Schwab is innocent of the death penalty. In concluding that Schwab did not meet the requirements for filing a second petition as set forth in 28 U.S.C. § 2244(b)(2)(B), the panel first found that Schwab failed to demonstrate that the factual predicate for the claim could not have been discovered earlier through the exercise of due diligence. This was because all of the information that caused the expert to revise his opinion was available at the time Schwab filed his first habeas petition and there was no explanation why it could not have been provided to the state expert at that time. Even assuming the requisite diligence could be found, Schwab still could not meet the statutory requirements because his claim was not based on a constitutional error. Rather, it was simply a change of opinion by an expert witness. Finally, the “new” evidence went only to the existence of mitigating circumstances, not whether Schwab was guilty of the underlying offense. Mark Schwab was executed on July 1, 2008.

For the Week of: 5/18/2008 Stay of execution denied to Georgia death row inmate by federal courts but clemency granted On May 20, 2008, the Eleventh Circuit (Pryor with Birch and Barkett) denied Samuel Crowe’s motion for a stay of his May 22nd execution date pending the appeals court’s review of the district court’s sua sponte dismissal of Crowe’s § 1983 challenge to Georgia’s lethal injection protocol. Crowe v. Donald, ___ F.3d ___, 2008 WL 2096831 (11th Cir. May 20, 2008). The district court had found Crowe’s complaint to be frivolous given that he had unsuccessfully challenged lethal injection in his previous state and federal habeas petitions. The panel did not decide whether the district court correctly ruled that res judicata and collateral estoppel barred Crowe’s claim. Instead, the panel found that Crowe could not succeed because the civil rights complaint was untimely. The applicable statute of limitations was two years. It began running, according to the panel, in 2001 when Crowe became subject to the method of execution challenged here. Crowe’s complaint was filed several years about the limitation period had expired. The panel further concluded that Crowe was not entitled to the equitable remedy of a stay due to his delay in bringing the action. Relying on circuit precedent, the panel rejected Crowe’s argument that it was not until the Supreme Court ruled that a challenge to a method of execution could be raised in a civil rights action that Crowe could have filed his complaint. In addition, Crowe inexplicably waited some 14 months after the Supreme Court ruling, when his execution became imminent, to file his law suit. On May 22nd, after Crowe had already finished his “last meal,” the Georgia Board of Pardons and Paroles commuted Crowe’s sentence to life without parole. Atlanta Journal Constitution, May 23, 2008. No explanation for the commutation was provided. Among Crowe’s supporters was a retired corrections officer who had told the parole board that Crowe “was the only person I dealt with on death row in 16 years who I felt like if they released him that morning he would never get in any more trouble and he could make a contribution to society.”

United States District Judge Jorge Solis of the Northern District of Texas rules on three habeas petitions filed by Texas death row inmates. On May 19, 2008, United States District Judge Jorge Solis of the Northern District of Texas denied Jesse Joe Hernandez’s habeas petition. Hernandez v. Quarterman, 3:06-CV-846 (N.D. Tex.). The claims in the petition were: (1) The trial court violated Petitioner’s right to due process under the Fourteenth Amendment by admitting Petitioner’s oral confession into evidence at trial; (2) The prosecutor violated Petitioner’s Fifth Amendment rights by commenting on his failure to testify during closing arguments; (3) The trial court violated Petitioner’s due process rights under the Fourteenth Amendment when it refused to give a requested parole instruction to the jury; (4) The Texas capital sentencing scheme violates the Fifth and Fourteenth Amendments because it does not provide for a burden of proof regarding mitigation evidence; (5) Use of the word “probability” in the future dangerousness special issue violates the Eighth and Fourteenth Amendments because it lowers the State’s burden of proof and fails to sufficiently guide the jury in evaluating the evidence; (6) The punishment special issues are unconstitutional under the Eighth and Fourteenth Amendments because several terms are not defined for the jury in the jury charge; and (7) Petitioner’s rights under the Eighth and Fourteenth Amendments were violated by the Texas “12-10" rule because the jury was not informed of the effect of one holdout juror at punishment with respect to the punishment special issues. Earlier in the month, on May 5, 2008, Judge Solis denied Gayland Bradford’s habeas petition. Bradford v. Quarterman, 3:00-CV-2709 (N.D. Tex.). Bradford had raised six grounds for relief, one of which he withdrew after conceding it was barred by Teague. The first three claims involved allegations of ineffective assistance by trial counsel at the punishment phase of the trial. Because Bradford had failed to raise them in state proceedings, they were found to be procedurally defaulted. In the alternative, Judge Solis ruled the ineffectiveness claims failed on the merits. For claims involving the alleged failure to adequately develop and present mitigating evidence, although Bradford pointed to “disturbing facts which appear to have mitigating value and yet not presented to the jury or even known by his experts at the time [of trial],” Bradford failed to allege what investigation counsel actually conducted, what contact counsel had with the expert he used, etc. Judge Solis thus found: “The extent of trial counsel’s knowledge and investigation are simply unknown to this Court. Therefore, even the disturbing facts of the petition would not automatically give rise to relief, but would require further evidentiary development in this Court. Since the Petitioner made no attempt to develop these claims in the state court proceeding, he has failed to develop the factual basis for these claims in state court and this Court is prohibited by 28 U.S.C. § 2254(e)(2) from conducting any such evidentiary hearing on these matters. Therefore, even were this Court not prohibited by an independent and adequate state procedural bar from consideration of these claims, it would be prohibited from doing so by federal law.” Also rejected by Judge Solis were claims that: the state court improperly relieved the prosecution of its constitutional burden to prove that Petitioner is not a member of a class of persons exempted from capital punishment; and his Eighth Amendment rights were violated by the long duration and conditions of his confinement while he sought post-conviction review of his capital conviction and death sentence. On April 24, 2008, Judge Solis granted habeas relief to Charles Mines Jr., as to his death sentence, pursuant to the instructions of the Fifth Circuit. Mines v. Quarterman, 3:00-CV-2044 (N.D. Tex. April 24, 2008). See Mines v. Quarterman, 2008 WL 510510 (5th Cir. Feb. 26, 2008) (Texas special issues precluded jury from giving mitigating effect to evidence of mental illness).

Habeas relief denied to Texas death row inmate May 22, 2008, United States District Judge Sim Lake of the Southern District of Texas granted the warden’s motion for summary judgment and denied Coy Wesbrook’s habeas petition. He also sua sponte denied a COA on all claims. Wesbrook v. Quarterman, H-07-129 (S.D. Tex.). The claims raised were: (1) incompetence to stand trial; (2) trial court error in failing to conduct a competency hearing; (3) ex parte communications between prosecutor and trial court regarding ongoing investigation into Wesbrook’s plot to solicit the murder of witnesses violated Wesbrook’s right to an impartial judge and his right to counsel; (4) failure of prosecutor to disclose investigation into murder plot and information about the informant; (5) violation of right to counsel by prosecutor’s use of inmate as undercover informant; (6) ineffective assistance by trial counsel for failing to seek the appointment of an expert regarding Wesbrook’s competence to stand trial, failing to argue that Wesbrook suffered from psychological problems during guilt phase, and allowing incompetent and troubled Wesbrook to testify; (7) ineffective assistance by trial counsel for failing to request a continuance to investigate the jailhouse informant; (8) ineffective assistance by trial counsel at the penalty phase for failing to investigate whether Wesbrook suffered from neurological impairment, mental retardation or other health problems that may have affected his judgment; (9) trial court erred in appointing lead trial counsel as counsel for the appeal; (10) denial of effective assistance by appellate counsel due to absence of oral argument on appeal; (11) ineffective assistance by appellate counsel for failing to investigate potential juror misconduct; (12) ineffective assistance by appellate counsel for failing to raise numerous arguments on appeal (related to some of the claims above); (13) due process violation from state habeas court’s refusal to hold an evidentiary hearing and adoption verbatim of the State’s proposed findings and fact and conclusions of law; and (14) mental retardation precludes death sentence. Regarding the claim of ineffective assistance of counsel for failing to develop and present certain neurological evidence, Judge Lake noted that defense counsel did call a mental health expert who testified, among other things, that Wesbrook suffered from neurological impairment that caused significant problems with his academic development and impaired his psychological and social development. Attached to Wesbrook’s amended petition was a report by a different expert who made similar findings but with the notable addition of a diagnosis of frontal lobe brain damage that impacted Wesbrook’s impulse control. In concluding that Wesbrook was not prejudiced by counsel’s failure to present such evidence, Judge Lake relied on: (1) the claim of poor impulse control was undercut by Wesbrook’s “cool and deliberate effort to solicit other murders”; and (2) the double-edged nature of evidence of poor impulse control, i.e., that it supported a finding of future dangerousness.

Texas death row inmate appeals dismissal of authorized successor petition raising Atkins claim. On May 22, 2008, Milton Mathis filed a notice of appeal from United States District Judge Vanessa Gilmore’s judgment dismissing Mathis’s successor petition. See Mathis v. Quarterman, 4:07-cv-01142 (S.D. Tex. March 31, 2008), and April 23, 2008 modification. Judge Gilmore concluded that she lacked jurisdiction to entertain the authorized successor petition that raised an Atkins claim because the claim had been available at the time the first federal petition was filed but had not been included. (Atkins was decided some 10 months before the initial federal petition was filed which raised only then exhausted claims.) Judge Gilmore rejected Mathis’s arguments that the claim was functionally unavailable because of (1) the exhaustion doctrine; (2) Texas’s former two-forum rule; and (3) uncertainty about whether a successive state petition dismissed as an abuse of the writ would nevertheless toll the federal statute of limitations. Judge Gilmroe further found that Mathis could not meet the miscarriage of justice exception for filing a successor petition under 28 U.S.C. § 2244(b)(2)(B)(ii) because he could not establish that the factual basis for the claim was previously unavailable to him. Judge Gilmore then ruled that the Atkins claim was also untimely. There was no question that it was untimely under the federal statute of limitations. At issue was whether Mathis was entitled to equitable tolling of the limitations period. Mathis had argued that his delay in raising the claim was caused by Texas’s former two-forum rule. Judge Gilmore concluded, however, that the problems the rule created in this case flowed from Mathis’s litigation strategy and his lack of diligence. Judge Gilmore noted, among other things, that Mathis did file a successor state petition on the last possible day under the federal limitation period indicating that he did not in fact fear the two-forum rule. ( That petition was eventually dismissed under the modified rule because federal proceedings were ongoing.) According to the district court, the only reason the two-forum rule was invoked was because Mathis prematurely filed the federal petition prior to exhausting his Atkins claim. Also noted by Judge Gilmore was Mathis’s failure to request a stay from the Fifth Circuit after the initial state successor petition was dismissed because federal proceedings were ongoing. Judge Gilmore did sua sponte grant a COA on all issues discussed in the memorandum and order. The original memorandum and order addressed the merits of the Atkins claim in an alternative ruling but that portion of the memorandum and order was vacated on April 23, 2008.

Habeas relief granted for second time in Oklahoma death penalty case On May 22, 2008, United States District Judge Terence Kern of the Northern District of Oklahoma granted habeas relief to Lonnie Richie on a Beck v. Alabama claim. Richie v. Sirmons, 98-CV-482 (N.D. Okla.). Habeas relief had previously been granted to Richie on his claim that trial counsel was ineffective in cross-examining the medical examiner but the Tenth Circuit reversed and remanded for consideration of Richie’s remaining claims. Richie v. Mullin, 417 F.3d 1117 (10th Cir. 2005). Here, Judge Kern agreed with Richie’s contention that he was constitutionally entitled to a jury instruction on second degree depraved mind murder. The claim was reviewed de novo because the state court, although setting forth a standard consistent with Beck, failed to conduct the Beck analysis and instead evaluated the issue under an abuse of discretion standard. Judge Kern concluded: “Because the [state appellate court] made no specific finding as to whether sufficient evidence was presented at Petitioner´s trial to warrant a second degree depraved mind murder instruction, there is no finding to which this Court owes deference under AEDPA.” As to the merits of the claim, Judge Kern found “that the evidence introduced in support of Petitioner´s theory that he did not intend to kill Mrs. Launhardt presented an alternative version of events to the jury which could negate the intent element of first degree murder. Further, a jury could rationally conclude that Mrs. Launhardt´s death was perpetrated by an act imminently dangerous to the victim and evincing a depraved mind, but without a premeditated design to effect death. Petitioner has demonstrated that, ‘[T]he evidence presented at trial would permit a rational jury to find him guilty of the lesser included offense and acquit him of first-degree murder.’ Young v. Sirmons, 486 F.3d 655, 670 (10th Cir. 2007) (citing Hogan v. Gibson, 197 F.3d 1297, 1307 (10th Cir. 1999). Thus, because Petitioner was entitled to but did not receive instructions on second degree depraved mind murder, he is entitled to habeas relief on this portion of his ground five claim.” Judge Kern further found that trial counsel was ineffective for failing to develop and present evidence of Richie’s brain damage at the sentencing phase of the trial. Although trial counsel did have a psychologist evaluate Richie prior to trial, the trial expert merely performed personality tests and uncovered nothing helpful. Counsel made no strategic decision to forego evidence of brain impairment. Rather, counsel “simply did not take any action to determine whether such evidence was available.” In concluding that Richie was prejudiced by counsel’s deficiency, Judge Kern observed that testimony by a neuropsychologist “could have provided a jury with an explanation for Petitioner’s behavior.” Further, Richie’s “litigation expert” stated that a neuropsychologist´s testimony about organic brain damage would have provided a very significant mitigating factor and is “helpful because it gives the jury an explanation that it´s something outside of the defendant, something that is not his fault, that he´s a damaged person.”

Discovery ordered in federal habeas case brought by Ohio death row inmate. On May 22, 2008, United States District Judge John Adams of the Northern District of Ohio issued a memorandum opinion and order concerning the warden’s discovery motion and the petitioner’s request for permission to conduct depositions. Brinkley v. Houk, 06cv110 (N.D. Ohio). The warden sought discovery in order to defend against Brinkley’s claim that trial counsel was ineffective in failing to conduct a thorough mitigation investigation and to obtain and utilize expert services. Over Brinkley’s objection, Judge Adams granted the warden’s request for access to the files of the expert retained by state post-conviction counsel whose affidavit supports Brinkley’s claim. Also granted over Brinkley’s objection was access to post-conviction counsel’s files concerning Brinkley’s mental health and history, and/or mitigation. Brinkley did not object to discovery of the files of the trial experts. The warden previously was provided with discovery of trial counsel’s files. Brinkley’s request to depose the trial experts, as well as the post-conviction expert, was granted. The warden had objected to the deposition of one of the trial experts on the ground that Brinkley had failed to offer any evidence relating to that expert during post-conviction proceedings. Thus, according to the warden, the restrictions of § 2254(e)(2) applied. Judge Adams was unpersuaded, finding § 2254(e)(2) inapplicable at this juncture given that the deposition was merely discovery and Brinkley had not yet sought to admit any new evidence. The warden’s unopposed motion to expand the record to include evidence about Brinkley’s criminal history was also granted. The warden alleged, and Judge Adams agreed, that it was relevant because trial counsel asserted that a limited case in mitigation was presented in order to avoid opening the door to Brinkley’s criminal history.

Federal habeas relief denied to California death row inmate. On May 20, 2008, United States District Judge William Alsup of the Northern District of California granted summary judgment to the warden on the claims remaining in Anthony Sully’s habeas petition. Sully v. Ayers, C-92-00829 (N.D. Cal.). (In 1983, Judge Alsup denied a number of Sully’s claims as barred by Teague. The following year, Judge Alsup ruled that other claims were procedurally defaulted. In 2006, summary judgment was granted to the warden on certain record-based claims. The claims at issue here were mostly claims Sully had argued required an evidentiary hearing.) Sully had been charged with, among other things, six first-degree murders. He claimed innocence, testifying at length in his own defense and blaming each killing on one or more of his acquaintances. He admitted use of cocaine but downplayed how it effected him. He also presented expert testimony from a pharmacologist who opined that planned aggression while under the influence of cocaine was unlikely. This supported Sully’s contention that his drug usage would not have fueled a murderous rampage. Given the defense of innocence, which Sully did not allege trial counsel was ineffective for employing, Judge Alsup found a number of Sully’s ineffective assistance of counsel allegations to be untenable. Sully had alleged, for example, that trial counsel performed deficiently at the sentencing phase by failing to present evidence concerning Sully’s chronic substance abuse, mental state and domination by others. Judge Alsup noted, however, that trial counsel had developed evidence about Sully’s cocaine use but had presented it in a manner supporting Sully’s claim of innocence instead of as a basis for finding diminished mental capacity at the time of the offenses. In Judge Alsup’s view, the strategic choice to claim innocence and bolster it with pharmacological evidence necessarily limited the options at the penalty phase. To the extent that Sully now attacked the conclusions of the trial expert, which were inconsistent with the views of the post-conviction expert regarding the effects of cocaine, Judge Alsup responded: “Trial counsel cannot now be faulted for affirmatively relying upon the sworn testimony of an expert conceded by all to have been qualified and respected.” Further, Judge Alsup found that Sully was not prejudiced by trial counsel’s failure to present the inconsistent evidence at the penalty phase. This was in part based on Judge Alsup’s belief that the mitigating value of chronic substance abuse is questionable. Judge Alsup was also skeptical that the post-conviction expert’s strong opinions about Sully’s mental condition would have altered the outcome of the penalty phase given the absence of similar findings in earlier evaluations. That the evidence in aggravation was “overwhelming” was among the numerous other considerations. Sully’s claim that trial counsel was ineffective at the guilt phase for failing to investigate and present a mental state defense was easily disposed of by Judge Alsup, who found: “Petitioner’s choice to testify as he did obviated the need for an investigation of a mental-state defense.” Again, Judge Alsup pointed out that Sully was not alleging that counsel should have prevented Sully from testifying. Thus, given that Sully did testify and assert complete innocence, “it would have been folly to have undercut petitioner’s story with the line of defense suggested now.” Also rejected by Judge Alsup were the following claims and subclaims: (1) Sully was incompetent to stand trial and to waive certain rights; (2) trial counsel was ineffective in: (a) failing to investigate incompetence or request a competency determination, (b) colluding with Sully regarding an outburst following the jury’s guilty verdict, (c) failing to object to Sully’s absence from the courtroom during the penalty phase and failing to request a curative instruction; (d) failing to investigate and present exculpatory evidence, (e) calling the prosecutor of a co-defendant as a defense witness, (f) failing to raise the trial judge’s conflict of interest given his past representation of Sully’s ex-wife, (g) failing to object to numerous acts of prosecutorial misconduct, (h) failing to adequately cross-examine guilt and penalty phase prosecution witnesses and failing to call a rebuttal witness to an incident offered in aggravation, (i) failing to obtain and review the transcripts from a co-defendant’s trial, (j) failing to move to quash search warrant and seek suppression of evidence, (k) failing to counter evidence of victims’s suffering with testimony from forensic expert, (l) failing to move for suppression of portions of Sully’s taped interrogation where he invoked his Fifth Amendment rights; (3) denial of the right to effective assistance by mental health experts; (4) conflict of interest based on trial counsel’s prior representation of potential and actual prosecution witnesses; (5) due process violation by trial court for failing to sua sponte institute competency proceedings; (6) prosecutorial misconduct by making witness unavailable through charging manipulation; (7) Brady violation; (8) death sentence constitutionally unreliable due to counsel’s failure to object to numerous errors during the guilt phase of the trial; (9) Miranda violation; (10) Massiah violation; (11) denial of due process and right to present a defense because of law enforcement harassment of potential defense witnesses; (12) ineffective assistance by appellate counsel for failing for file a habeas petition; and (13) cumulative error.

COA granted to California death row inmate by district court On May 20, 2008, in entering judgment against Anthony Sully, United States District Judge William Alsup sua sponte granted a COA on four of the clams raised in Sully’s habeas petition: (1) ineffective assistance of counsel at the penalty phase for failing to present evidence of chronic substance abuse, mental impairments and domination by others; (2) ineffective assistance of counsel at the guilt phase for failing to investigate and present a mental state defense; (3) ineffective assistance of counsel for failing to investigate and present evidence of incompetence and for failing to request that the trial court institute competency proceedings; and (4) incompetence to stand trial and waive fundamental rights.

Abeyance granted by federal district courts in recent months to allow some Texas death row inmates to exhaust state remedies. On May 12, 2008, United States District Judge Melinda Harmon of the Southern District of Texas granted Roger McGowen’s request that federal habeas proceedings be held in abeyance while McGowen attempted to exhaust state remedies on numerous claims that state habeas counsel had failed to develop and present during prior state proceedings. McGowen v. Quarterman, H-06-3182 (S.D. Tex.). MGowen had based his abeyance request “on recently evolving standards from the Texas Court of Criminal Appeals allowing a return to state habeas process for review of previously un-presented claims.” McGowen also based his request “on Ruiz v. State, 504 F.3d 523 (5th Cir. 2007), wherein the Fifth Circuit recognized this same broadening of avenues for re-entry into Texas state post conviction process.” Although the warden previously filed for summary judgment on all claims, including the unexhausted claims at issue in the abeyance motion, the warden did not respond to McGowen’s abeyance request. Judge Harmon ruled: “Considering Respondent’s failure to oppose, the potential merit of McGowen’s arguments, and the State of Texas’ interest in having the first opportunity to consider habeas claims, the Court GRANTS McGowen’s motion to stay.” On March 31, 2008, Judge Harmon ordered federal proceedings held in abeyance so that Bernardo Tercero could exhaust his claim that he is ineligible for execution because he was under the age of 18 at the time of the capital offense, as well as other claims that were not raised during the initial state habeas proceeding. (There is a factual dispute about Tercero’s age.) United States District Judge Jorge Solis of the Northern District of Texas rejected an abeyance request made by Gayland Bradford who made a similar argument to the one made by Roger McGowen. Bradford v. Quarterman, 3:00-CV-2708 (N.D. Tex. May 5, 2008). Judge Solis found that Bradford’s unexhausted claims of ineffective assistance of counsel at the sentencing phase were procedurally defaulted under Texas’ abuse-of-the-writ doctrine and that Bradford had failed to meet his burden of proof showing that the state procedural rule is no longer adequate to bar federal review. On May 13, 2008, United States District Judge T. John Ward of the Eastern District of Texas granted William Speer’s abeyance request. Speer v. Dretke, 2008 WL 2065798 (E.D. Tex. May 13, 2008). The unexhausted claims at issue were based on the prosecution´s failure to disclose to Speer that it had offered incentives to inmate witnesses in exchange for their testimony. Judge Ward rejected the warden’s argument that the claims should be treated as procedurally defaulted, finding that it was not entirely clear that the state court would refuse to consider the claims. (Speer had alleged that the factual basis for the claim was unavailable to him during the initial state habeas proceedings because the information was contained in a co-defendant’s court file that had been sealed.) Applying the factors identified in Rhines v. Weber for determining whether abeyance is appropriate, Judge Ward found: (1) Speer showed good cause for having failed to raise the claims in state court earlier; (2) the claims were not “plainly meritless”; and (3) Speer’s delay of five months in requesting abeyance after learning of the factual basis for the claims was not so great as to defeat the comity interest in allowing the state court the first opportunity to rule on the claims.

For the Week of: 5/11/2008 Cert granted in Virginia capital case On May 12, 2008, the Supreme Court granted Edward Bell´s certiorari petition, limited to the first question, which is: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims “adjudicated on the merits” in state court, to evaluate a claim predicated on evidence the state court refused to consider and that was received for the first time in a federal evidentiary hearing?

Denial of habeas relief to Florida death row inmate affirmed. On May 13, 2008, the Eleventh Circuit (per curiam - Tjoflat, Carnes, Hull) affirmed the denial of Robert Hendrix’s habeas petition. Hendrix v. Secretary, Dept. of Corrections, ___ F.3d ___, 2008 WL 2020431 (11th Cir. May 13, 2008). The district court had granted a COA on three claims: (1) whether the trial court’s refusal to recuse himself violated Gardner v. Florida, 430 U.S. 349 (1977); (2) ineffective assistance of counsel; and (3) a Brady violation. As for the first claim, the panel held that the Florida Supreme Court’s factual finding that the trial court did not consider confidential information when sentencing Hendrix to death was not unreasonable in light of the evidence before it. (Prior to the trial judge becoming a judge, he had given advice to the attorney for Hendrix’s co-defendant. There was no evidence that the co-defendant’s attorney had told the trial judge anything relevant to Hendrix’s sentencing.) In addition to the Gardner argument, Hendrix had also argued that the trial judge’s failure to recuse himself violated Hendrix’s due process right to a fair and impartial judicial officer. Questioning whether this argument fell within the COA, the panel nevertheless addressed it and found it without merit. To the extent Hendrix alleged that state law required recusal, that did not present a basis for federal habeas relief. And Hendrix’s failure to allege any bias on the part of the trial court while in state proceedings precluded him for alleging bias now. As for Hendrix’s suggestion that the appearance of bias requires recusal under the Constitution, the panel pointed out that no clearly established Supreme Court precedent existed on which Hendrix could rely. Although Hendrix had received a COA on allegations of ineffective assistance of counsel at the guilt phase of the trial, he abandoned the claim on appeal. Regarding counsel’s performance at the penalty phase, the Florida Supreme Court had ruled that trial counsel’s investigation into and presentation of mitigating evidence were reasonable. The panel summarily found that this state court decision was not an unreasonable application of relevant Supreme Court case law. It then commented on the mental health experts Hendrix had presented in the state post-conviction proceeding, noting that “[t]he emergence of such witnesses is not at all unusual” and that claims are often raised based on such new witnesses seemingly without regard to trial counsel’s actual investigation or the basis for counsel’s strategy decisions. The panel noted that here, Hendrix had been seen by a psychologist several years before the capital murder and by two psychologists between the crime and trial. Hendrix did not allege that the findings of two of these experts were particularly helpful to him. Of note to the panel was the evaluation by the third expert, Dr. Henry Krop, who is a respected forensic psychologist who frequently testifies on behalf of defendants regarding mitigating circumstances. According to trial counsel, Dr. Krop told him that Hendrix had recounted cold and calculated murders. (One victim was Hendrix’s cousin who was killed so he could not be a witness against Hendrix in a burglary case. The other was the cousin’s wife who had the misfortune of being present.) Dr. Krop concluded that Hendrix’s acts were not the result of any mental defect. Dr. Krop informed trial counsel that he could offer no professional opinion that would be helpful to Hendrix. On this record, the Florida Supreme Court’s finding that counsel acted reasonably in the mental health investigation and in deciding not to call Dr. Krop was not, in the panel’s view, contrary to or an unreasonable application of Supreme Court law. Finally, Hendrix had alleged that his due process rights were violated by the prosecution’s failure to disclose that one of its witnesses had been a confidential informant for a drug task force a few years prior to Hendrix’s trial. The state courts had resolved the claim against Hendrix on the ground that he failed to establish materiality. The witness in question was a jailhouse snitch who testified to admissions allegedly made by Hendrix. Because the jury already knew that the witness was an inmate and that he hoped to gain something from testifying against Hendrix, the state court concluded that the withheld information would not have appreciably damaged the witness’s credibility. Furthermore, there was “vast” evidence against Hendrix. The panel found that the state court’s finding of no materiality was a reasonable application of Brady.

Ninth Circuit amends decision granting sentencing phase relief to Arizona death row inmate On May 14, 2008, the Ninth Circuit, in response to the warden’s rehearing petition, issued an amended opinion and dissent in Correll v. Schriro, ___ F.3d ___, 2008 WL 2039074 (9th Cir. May 14, 2008), a pre-AEDPA Arizona death penalty case. The majority opinion, authored by Judge Thomas and joined by Judge Schroeder, again found that Correll was denied the effective assistance of counsel at the penalty phase of the trial, reversing the district court. Judge O’Scannlain continued to dissent. An active judge called for a vote on the warden’s request for rehearing en banc but the request received insufficient votes. A further rehearing petition and request for en banc consideration will be entertained insofar as related to amendments to the opinion. In finding that Correll was entitled to habeas relief, the panel majority rejected as clearly erroneous a number of findings by the district court. One of the findings concerned trial counsel’s investigation into Correll’s background. Although the panel majority agreed with the district court that a number of family witnesses had been interviewed, the panel majority found the interviews to be “substantively worthless” as a result of counsel’s failure to probe for relevant mitigation about which counsel was on notice. (The district court had found, in contrast, that counsel was not on notice of certain mitigating circumstances and that his interviews were reasonable.) By simply asked the interviewees to tell counsel anything that would “help,” counsel’s investigation was inadequate, Regarding prejudice, the panel majority criticized the district court for making findings about whether Correll in fact suffered from brain damage at the time of the capital offenses. It explained: “[I]n the procedural context of this case, the district court’s role was not to evaluate the evidence in order to reach a conclusive opinion as to Correll’s brain injury (or lack thereof). The district court should have decided only whether there existed a ‘reasonable probability’ that ‘an objective fact-finder’ in a state sentencing hearing would have concluded, based on the evidence presented, that Correll had a brain injury that impaired his judgment at the time of the crimes. Because the competing neuropsychologists who testified at the evidentiary hearing agreed that the evidence of brain injury was at least strong enough to deserve presentation at a sentencing hearing, we conclude that Correll’s evidence had at least a ‘reasonable probability’ of persuading an objective fact-finder. The district court clearly erred when it concluded that Correll presented insufficient evidence of organic brain damage.”(Citation omitted.) Regarding the warden’s argument that much of the evidence about Correll’s troubled background that was presented at the evidentiary hearing was contained in the presentence report, the panel majority responded: “While the bare facts of Correll’s troubled past were indeed presented to the court, without further investigation and presentation of contextual evidence and argument, such facts served only to demonize Correll rather than to mitigate the appropriateness of imposing the death penalty for his actions.” The panel majority also found that the district court was wrong to reject evidence that Correll was substantially impaired by methamphetamine use at the time of the offenses. Judge Callahan dissented from the denial of rehearing en banc. She was joined by Chief Judge Kozinski, and Judges O’Scannlain, Kleinfeld, Tallman and Bea. Callahan accused the panel majority of failing to give the required deference to the district court’s factual findings, and also of improperly interpreting Strickland so as “to create an almost irrebutable presumption of prejudice.” In Callahan’s view: “The record in this case clearly shows that the presentation of evidence of Correll’s alleged brain damage, sociopathic or antisocial personality disorder, drug use, and troubled family would not have made any difference to the trial judge or the Arizona Supreme Court. This conclusion is solidly based on the horrific nature of the murders, the applicable constitutional and state law as it existed when Correll was tried, the perceived nature of the trial judge’s jurisprudence, and the incredibly damaging nature of the rebuttal evidence. It is one thing to cast about for alternate theories after the imposition of the death penalty, and an entirely different thing to argue that a defendant who has been convicted by a jury of first degree murder should not receive the death penalty because he is a sociopath who cannot control himself. Correll’s counsel thought that there was a one in twenty chance that Judge Howe would not impose the death penalty if the murders were presented as the result of a ‘routine robbery, drug rip off that went bad.’ The presentation of further evidence of Correll’s mental and medical records, antisocial behavior, and prior crimes — far from eliciting sympathy — would have rendered a death sentence a certainty rather than a probability.”

COA granted to Texas death row inmate On May 14, 2008, the Fifth Circuit (Smith with Wiener and Owen) granted in part Henry Skinner’s request for a COA. Skinner v. Quarterman, ___ F.3d ___, 2008 WL 2043036 (5th Cir. May 14, 2008). A COA was granted on the following: (1) ineffective assistance by trial counsel for failing to present a blood spatter report that could have bolstered the defense that Skinner was too intoxicated to have committed the triple murder and undermined the prosecution’s theory of how the killings occurred; and (2) ineffective assistance of counsel for failing to call an additional witness who could have added some support to the defense theory that the uncle of one of the victim’s was the actual killer.

Texas death row inmate seeks COA after district court finds authorized successor Atkins petition to be untimely. On March 31, 2008, United States District Judge Ron Clark of the Eastern District of Texas granted summary judgment in favor of the warden and dismissed with prejudice James Lee Henderson’s authorized successor petition. Henderson v. Quarterman, 1:06-CV-507 (E.D. Tex.). In authorizing Henderson to file the petition, the Fifth Circuit had found that the successor petition would be time-barred absent equitable tolling and left it to Judge Clark to determine whether Henderson was entitled to such tolling. Judge Clark determined that he was not. Henderson had federal habeas proceedings pending when Atkins was issued. Because of Texas’s former “two-forum” rule, Henderson was not able to raise his Atkins claim in state court while the federal proceedings were underway. The one-year limitation period expired on June 20, 2003 while federal habeas proceedings were still pending. Federal proceedings were completed on January 26, 2004, with the Supreme Court’s denial of a certiorari petition. It was not until almost two months later, on March 24, 2004, that Henderson raised the mental retardation claim in state court. And it was not until five weeks after the state court denied relief that Henderson moved for authorization in the Fifth Circuit to file the successor federal petition. On this record, Judge Clark did not belief Henderson showed the requisite diligence for entitlement to equitable tolling. Henderson has requested a COA on two issues: (1) did the district court err by concluding that Henderson’s Atkins claim is time-barred because he is not entitled to equitable tolling; and (2) Did the district court err in failing to reach the merits of the Atkins claim because Henderson is innocent of the death penalty? Henderson argues, among other things: “In sum, a total of about three months elapsed during which Mr. Henderson’s two writs could have been filed, but were not. Given the evidence in this record of the work that was completed during that three month period, Mr. Henderson has met his burden of demonstrating diligence and is entitled to equitable tolling. Prior to denial of certiorari, and, therefore, the ability to properly file a state Atkins writ as a result of the then-applicable two-forum rule, counsel, on a pro bono basis, retained an investigator, at his expense, to locate hard to find records relating to Mr. Henderson’s childhood. After the records had been located and counsel had an opportunity to study and analyze same, counsel retained, also at his expense, a licensed psychologist to review the records, test Mr. Henderson and write a report. Because of circumstances completely outside of counsel’s control, certiorari was denied before the expert’s report was finished, and, therefore, necessarily delayed the filing of the state Atkins writ. After the necessary report was completed, counsel filed the state Atkins writ within one-week. Counsel did not make any unauthorized filings, and, instead chose to abide by the rules. Counsel’s filings were well-written, well-reasoned and well-supported in the law and facts as reflected by the fact that the Court of Criminal Appeals remanded for an evidentiary hearing and the Fifth Circuit authorized filing of this subsequent writ. Counsel at no time delayed for any improper reason or sought a tactical advantage. As such, jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”

Motion to alter or amend judgment denied in federal habeas case involving Atkins-related claims. On May 16, 2008, United States District Judge David Folsom of the Eastern District of Texas denied Elroy Chester’s Rule 59(e) motion that sought alteration or amendment of Judge Folsom’s judgment denying Chester’s authorized successor petition. <.i>Chester v. Quarterman, 5:05cv29 (E.D. Tex.). Judge Folsom previously found that relief on Chester’s Atkins claim was precluded by § 2254(d). In the Rule 59(e) motion, Chester complained that Judge Folsom had failed to address his additional claim that his death sentence was unconstitutional because the jury was permitted to consider mental retardation in aggravation. Agreeing that Chester was entitled to know the reasons for the Court’s denial of that claim, Judge Folsom provided a full explanation in the order denying the Rule 59(e) motion. At Chester’s pre-Atkins sentencing hearing, he contended that he was mentally retarded. The prosecutor disputed the claim of mental retardation but argued that even if it were true, it was something to consider in aggravation. After first noting that Penry I was the governing law at the time of the trial, Judge Folsom found: “Read narrowly, the decision in Penry I concerned only the content of jury instructions, not the propriety of closing arguments. Read broadly, because the decision recognized that mental retardation was a ‘double edged sword’, i.e. both aggravating and mitigating, it required that jurors be allowed to consider mental retardation as a reason not to impose the death penalty, not only as a reason to impose the penalty. Accordingly, it was not improper for the prosecution in Chester’s case to argue that, if the jurors found that he was mentally retarded, his mental retardation was relevant to aggravating factors in the death penalty decision, such as his future dangerousness.” Conceding that mental retardation can no longer properly be considered as an aggravating factor under Atkins, as well as the fact that Atkins applies retroactively, Judge Folsom nevertheless concluded Chester was not entitled to relief on his claim. He explained: “The Supreme Court in Atkins provided a single remedy for defendants whose mental retardation was not uncovered at trial, and for defendants whose mental retardation was improperly weighed as an aggravating factor in deciding whether to impose the death penalty: It prohibited the execution of their death sentences. It did not, however, require that mentally retarded inmates receive new sentencing hearings. Accordingly, Chester’s argument - that he was denied a fair sentencing hearing - is subsumed into his mental retardation claim. Since Chester was found not to be mentally retarded, his claim cannot prevail. The state court’s rejection of Chester’s fourth claim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States in Atkins and Penry I.

Warden appeals grant of habeas relief to Texas death row inmate Delma Banks. On May 12, 2008, United States District Judge David Folsom of the Eastern District of Texas granted the warden’s motion to stay his judgment granting habeas relief to Delma Banks, Jr., pending the warden’s appeal. Judge Folsom on April 1, 2008, had issued an opinion adopting the magistrate judge’s recommendations in part, denying them in part, and finding that Banks was entitled to habeas relief as to his capital conviction because of a Brady violation. (For background on this case, see Banks v. Dretke, 540 U.S. 668 (2004) (holding in part that COA should have issued as to whether the Brady claim was properly pleaded through Fed. R. Civ. Pro. 15(b).) Judge Folsom agreed with the magistrate judge that the Brady claim, although not alleged in Bank’s petition, was tried by implied consent during the federal evidentiary hearing held on a separate Brady claim. Judge Folsom disagreed, however, with the magistrate judge’s conclusion that the suppression of a transcript of a pre-trial interview with the key prosecution witness, Cook, was not material. The transcript showed that the witness had been extensively coached just days before giving his testimony at trial, something he expressly denied in his testimony. In finding the suppressed transcript to be material, Judge Folsom relied on the following: “(1) Cook’s testimony was both uncorroborated and was central to the prosecution’s case at the guilt phase of the trial; (2) Cook misrepresented the fact that he had been coached, and the prosecutor improperly relied upon that misrepresentation; and (3) Cook substantially altered his testimony in response to the coaching that he received just prior to trial.”

Denial of habeas relief to Georgia death row inmate affirmed by court of appeals.. On May 14, 2008, the Eleventh Circuit (Tjoflat, with Anderson; Wilson concurring in the result) affirmed the denial of Robert Newland’s habeas petition. Newland v. Hall, ___ F.3d ___, 2008 WL 2042822 (11th Cir. May 14, 2008). The only two claims addressed were: (1) IAC of trial and appellate counsel regarding a confession (i.e., failure to effectively litigate the suppression motion and failure of appellate counsel to challenge the trial court’s denial of the suppression motion); and (2) IAC for failing to adequately investigate and present mitigating evidence. Newland’s argument that trial counsel was also ineffective in failing to obtain mental health assistance for the guilt phase of the trial was not considered because Newland had limited his COA request to counsel’s performance at the penalty phase. Regarding the sentencing-related claim, Newland argued in part that trial counsel performed deficiently in failing to investigate and present evidence about Newland’s abusive and impoverished childhood. In rejecting this claim, the state habeas court had made the following findings: (1) Newland instructed trial counsel not to investigate his background; (2) trial counsel explained the role and importance of Newland’s personal history as mitigation evidence and unsuccessfully attempted to get such evidence from him on several occasions; (3) trial counsel attempted to learn of Newland’s background from other people who knew Newland but was unsuccessful; (4) trial counsel did not send an investigator to Newland’s home town because Newland “did not want that to happen . . . he was adamant about this, he didn’t want any of his relatives involved”; and (5) trial counsel was ethically bound to follow his client’s instructions. Although Newland argued to the appeals court that the alleged ethical prohibition formed the central rationale for the state habeas court’s denial of relief on the claim, the appeals court disagreed with Newland’s analysis of the state court decision. In addition, even assuming arguendo that Newland was correct, circuit precedent required the federal court to look to the ultimate decision in applying § 2254(d)(1), not the reasoning of the state court. Ultimately, the state habeas court concluded that trial counsel made a reasonable strategic decision to emphasize Newland’s religious conversion at the sentencing phase given that trial counsel was “hampered . . . by the lack of assistance he received from [Newland].” The panel majority agreed, finding that a “hypothetical attorney” could reasonably have concluded that evidence of an abusive childhood would not be probative as mitigation in the eyes of the jury and instead focus on the type of evidence trial counsel opted to present – evidence that Newland was a good person who inexplicably snapped. Moreover, according to the panel majority, “when limited by his client’s instructions not to contact his family or otherwise delve into his background, a reasonably competent attorney standing in [trial counsel’s] shoes would have gone no further than [trial counsel] did to seek mitigating evidence from the client’s past.” That trial counsel testified that he would have disregarded Newland’s instructions had he possessed sufficient information to research Newland’s background, something Newland contended counsel in fact had, was of no moment to the panel majority in its analysis because the question was not what trial counsel would have done but rather what a reasonably competent attorney standing in his shoes would have done. Similarly, the panel majority was unwilling to accord much weight to the opinions by Newland’s attorney experts about counsel’s performance. Although finding relief on this subclaim barred by § 2254(d), the panel majority did note that reasonably competent counsel would not have halted a background information after receiving no assistance from the client and an instruction to stay away from the client’s past. Rather, counsel would have looked to other sources in an effort to develop information as trial counsel here in fact did. Also rejected was Newland’s claim that counsel was ineffective in failing to seek an independent mental health evaluation of Newland and instead relying on the evaluations conducted by government experts who looked to competence and sanity at the time of the offense. Notably to the court, trial counsel believed that one of the experts was “the leading neurologist in the area,” and the other, although employed by the State of Georgia, was “as objective as any other mental health professional.” Further, in counsel’s interactions with Newland, counsel observed nothing abnormal. Thus, in the panel’s view, trial counsel had no basis for seeking any further evaluation. Finally, the panel majority concluded that the state habeas court’s finding that Newland could not establish prejudice even assuming counsel performed deficiently was not unreasonable. The panel majority cited to what it perceived as shortcomings in a sentencing defense that portrayed Newland as an addict who was aware that he would probably become violent if intoxicated. In concurring in the judgment, Wilson stated: “Without Supreme Court guidance addressing a lawyer’s obligation to conduct an investigation into his client’s background when the client instructs otherwise, I concur in the ultimate conclusion that the decision by the Georgia courts regarding counsel’s penalty phase representation is not ‘contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U.S.C. § 2254(d)(1).” (Footnote omitted.)

For the Week of: 2/24/2008 Supreme Court grants cert on AEPDA/habeas issue in non-capital case from the Ninth Circuit.. On February 25, 2008, the Supreme Court granted the warden’s petition for writ of certiorari in Chrones v. Pulido, 07-544. The question presented is: Did the Ninth Circuit fail to conform to “clearly established” Supreme Court law, as required by 28 U.S.C. § 2254(d), when it granted habeas corpus relief by deeming an erroneous instruction on one of two alternative theories of guilt to be “structural error” requiring reversal because the jury might have relied on it?” The background provided to this question by the warden is: Strombergv. California, 283 U.S. 359 (1931), required the reversal of the judgment if a general verdict could have rested on an instruction that defined a constitutionally defective alternative theory of criminal liability. However, a modern line of cases, including Neder v. United States, 527 U.S. 1 (1999), establishes that error in instructing on an element of a charged crime is not “structural error,” so as to require automatic reversal, but is instead “trial error” and, as such, may be harmless.

Habeas relief to Ohio death row inmate as to death sentence is affirmed by the Sixth Circuit. On February 27, 2008, the Sixth Circuit (Clay, with Daughtrey and Moore), affirmed the grant of habeas relief to Michael Bies on a double jeopardy claim related to a pre-Atkins finding of mental retardation. Bies v. Bagley, ___ F.3d ___, 2008 WL 507818 (Feb. 27, 2008). During his pre-Atkins sentencing phase, Bies had presented evidence that he was mentally retarded. The jury nevertheless recommended a death sentence which the trial court accepted and imposed. On appeal, again pre-Atkins, Bies argued that his mental retardation was a mitigating factor that justified a sentence less than death. In response, the State questioned whether Bies was in fact mentally retarded and pointed to evidence in the record that it claimed indicated that Bies was not mentally retarded. The intermediate appellate court concluded that Bies suffered from mild to borderline mental retardation but nevertheless affirmed the death sentence. On appeal to the Ohio Supreme Court, Bies again claimed he should receive a sentence less than death due to the mitigating circumstance of his mental retardation and the State countered with citations to the record that it argued refuted the claim of mental retardation. The state supreme court affirmed the death sentence but credited the defense expert’s opinion that Bies was mentally retarded. Subsequently, but still pre-Atkins, Bies sought state post-conviction relief. He argued, among other things, that it would violate the Eighth Amendment to execute him because of his mental retardation. This time the State argued that the Eighth Amendment claim was not viable but did note that the record revealed that Bies was mildly mentally retarded. The claim was denied. On appeal, the intermediate appellate court did not reach the claim because it had not been properly raised on appeal. Following the Atkins decision, Bies again sought state post-conviction relief. He alleged that the government was estopped from contesting his mental retardation because the issue had already been decided in prior proceedings. Even though it had previously conceded that Bies was mentally retarded, and in spite of the estoppel argument, the State contested the Atkins claim on the ground that Bies was not mentally retarded. Bies motion for summary judgment was denied. He then made a renewed motion arguing that the Double Jeopardy Clause barred the prosecutor from relitigating his claim of mental retardation. This too was denied. Bies was permitted to amend a pre-Atkins federal habeas petition to include the Double Jeopardy claim and the district court found it to be meritorious. Applying circuit precedent, the panel first ruled that Bies had properly exhausted the double jeopardy claim by raising it in the trial court and seeking summary judgment. This was because he could only appeal that ruling after the trial court relitigated the mental retardation issue. Given that such relitigation is precisely what the Double Jeopardy Clause is intended to prevent, the claim could be addressed now in federal habeas proceedings. Next, the panel agreed with Bies that the issue of his mental retardation had been decided by the state court and could not be reopened without violating the Double Jeopardy Clause. The panel rejected the State’s argument that the issue had not been previously resolved because there had been no definition of mental retardation for purposes of the Eighth Amendment during the pre-Atkins proceedings. It noted, among other things, that the Ohio Supreme Court in addressing Bies’s mental retardation argument applied the same clinical definition that it later held should be used in addressing Atkins claims. That the finding of mental retardation was made by an appellate court rather than the trial court was found by the panel to be irrelevant for double jeopardy purposes. The panel further concluded that the state supreme court’s finding on mental retardation had been “necessary” to its decision upholding Bies’s sentence in light of the required independent review of whether aggravation outweighed mitigation such that a death sentence was appropriate. The panel also found that the State had a full and fair opportunity to litigate the mental retardation question in the prior proceedings. It pointed out that the State had vigorously disputed Bies’s claim of mental retardation during the direct appeal briefing. The panel rejected the State’s argument that because Ohio law permits death row inmates to relitigate the question of mental retardation post-Atkins, the panel was required to apply the same standard when the State sought to relitigate the issue. Turning to AEDPA, the panel ruled that the trial court’s decision to permit relitigation was based on an unreasonable determination of the facts. The trial court found the record unclear as to whether the defense expert had utilized the same definition of mental retardation as adopted by the Ohio Supreme Court post-Atkins. The panel read the record as demonstrating that the same definition had been applied.

Non-capital cert grant on Fourth Amendment issue On February 25, 2008, the Supreme Court granted Arizona´s certiorari petition in Arizona v. Gant, 07-542. The question presented is: Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle´s recent occupants have been arrested and secured?

Florida Supreme Court affirms grant of post-conviction relief on penalty phase ineffective assistance of counsel claim. On February 28, 2008, the Florida Supreme Court affirmed a grant of post-conviction relief to Virginia Larzelere as to her death sentence, affirmed the denial of guilt-related claims, and denied her habeas petition. State v. Larzelere, ___ So.2d ___, 2008 WL 516424 (Fla. Feb. 28, 2008). Larzelere was convicted of having her son by a previous marriage kill her husband in order to collect insurance benefits. At the penalty phase, she waived the presentation of mitigating evidence. The post-conviction court, which was also the trial court, found that Larzelere had been denied her right to effective assistance of counsel in the sentencing proceedings. On appeal, the State argued in part that counsel could not be deemed ineffective because Larzelere had prevented them from investigating possible mitigation. The post-conviction court found that the waiver could not have been knowing and intelligent because counsel was unable to adequately advise Larzelere regarding potential mitigation due to a failure to adequately investigate. The Florida Supreme Court agreed, observing that counsel had not sought information regarding Larzelere’s childhood and background. They did not, for example, interview Larzelere’s three sisters for purposes of developing mitigation. Had they done so, they would have learned that Larzelere had been sexually abused by her father. Two of Larzelere’s children testified at the post-conviction hearing that counsel had not explained the concept of mitigation to them. If they had understood, they would have testified at the penalty phase about physical abuse inflicted on Larzelere by her first husband. One of the children was Larzelere’s co-defendant, who was tried separately. He claimed that after his own attorney explained what mitigation was to him, he tried to call one of his mother’s lawyers but the attorney wouldn’t take the call. In addition, Larzelere’s attorneys discounted the portions of their original investigator’s report that recounted statements by Larzelere about her father’s alcoholism, possible child abuse and possible spousal abuse. Although Larzelere’s attorneys did consult with a mental health expert, they did so only after the jury recommended a sentence of death. The court found that had counsel interviewed Larzelere’s family members or followed up on the investigator’s report, counsel would have seen a reason to obtain expert assistance at an earlier point. Therefore, it concluded that counsel performed deficiently for failing to obtain an informed mental health assessment prior to the penalty phase. In addition, counsel’s performance once a mental health expert was retained did not improve. They failed to provide the expert with information suggesting the possibility of physical and sexual abuse. According to the expert, counsel told him that no family members were available to assist with the evaluation. In addition, neither of Larzelere’s attorneys attended the State’s deposition of the expert. In agreeing with the post-conviction court that Larzelere had shown prejudice, the Florida Supreme Court observed that both Larzelere’s post-conviction expert and the State’s expert concluded that Larzelere had been sexually abused as a child by her father and uncle, that she was physically abused as an adult, and that she suffers from personality disorders, including narcissistic and histrionic personality disorders, “which help[ed] explain her relationship troubles and cunning, manipulative behavior.” In addition, the defense expert opined that Larzelere suffered from post-traumatic stress disorder and features of obsessive compulsive disorder. The defense expert also found the presence of statutory and non-statutory mitigating factors, although the State’s expert disputed some of them. The sisters confirmed the sexual abuse and Larzelere’s children recounted physical abuse, as well as their own sexual abuse by Larzelere’s father. Both children stated that they would have begged for their mother’s life if called to testify at trial. The Florida Supreme Court summarily rejected the State’s argument that Larzelere could not establish prejudice in light of the rebuttal evidence that would have come in: evidence that Larzelere had tried to murder her first husband, that Larzelere had allowed her father to abuse her children, and that she had involved her son in cocaine trafficking.

Eleventh Circuit affirms denial of habeas relief to Florida death row inmate. On February 25, 2008, the Eleventh Circuit (per curiam – Edmondson, Tjoflat, Dubina) affirmed the denial of William Thompson’s habeas petition. Thompson v. Secretary for Dept. of Corrections, ___ F.3d ___, 2008 WL 482544 (11th Cir. Feb. 25, 2008). The district court had granted a COA on two claims and the appeals court refused to expand the COA. The first claim alleged that Thompson’s constitutional rights were violated both by the presentation of non-statutory aggravating factors to the jury and by the failure to instruct the jury that aggravating factors could not be “double counted.” The claim had been raised for the first time in state post-conviction proceedings and was found by the state court to be procedurally barred. Although Thompson alleged that his appellate counsel’s ineffectiveness for failing to raise the claim on direct appeal provided cause to overcome the default, the panel found that argument unavailing given that the state court rejected on the merits the claim of ineffective assistance by appellate counsel. Further, the state court’s ruling on the challenge to appellate counsel’s performance was not contrary to or an unreasonable application of clearly established federal law. Thus, because the appellate ineffectiveness claim was not meritorious, it could not provide cause to overcome the procedural default. Thompson’s second claim was that his execution after 31 years of confinement on death row would constitute cruel and unusual punishment. The panel concluded the claim was unexhausted because Thompson had failed to include it when he appealed the denial of post-conviction relief to the Florida Supreme Court. It then went on to reject the claim on the merits, stating: “Especially given the total absence of Supreme Court precedent that a prolonged stay on death row violates the Eighth Amendment guarantee against cruel and unusual punishment, we conclude that execution following a 31-year term of imprisonment is not in itself a constitutional violation.”

Fifth Circuit finds Texas death row inmate entitled to habeas relief on Penry claim. On February 26, 2008, the Fifth Circuit (per curiam – Barksdale, Garza and Dennis) issued an unpublished decision reversing the district court’s denial of habeas relief on Charles Mines’s Penry claim and affirming the denial of another claim. Mines v. Quarterman, 2008 WL 510510 (5th Cir. Feb. 26, 2008). The jury in Mines’s case was provided with the same instructions given in the original Penry case. Looking to the recent Supreme Court decisions addressing Penry, as well as the Fifth Circuit’s finding of Penry error in the Coble case, the panel found that Mines’s evidence concerning his bipolar disorder had mitigating relevance beyond the scope of the special issues the jury was instructed to answer and that there was a reasonable likelihood that the jury was unable to give full effect to the evidence. Further, the state court’s finding to the contrary was an unreasonable application of clearly established Supreme Court law. (At oral argument, respondent had conceded that Mines’s case could not be distinguished from Coble and that circuit precedent foreclosed the argument that Penry error can be subject to harmless error analysis.) The remaining claim for which Mines had received a COA involved a challenge to testimony by the State’s expert, Dr. Grigson, regarding Mines’s demeanor when invoking his rights and remaining silent when Grigson attempted to examine him. The panel agreed with the magistrate judge’s finding that it was a “close call” whether Mines’s constitutional rights were violated by the testimony, but also agreed with the magistrate judge’s conclusion that any error was harmless under Brecht. This was because the contested statements were only a small part of Grigson’s testimony and they were not a major basis for his opinion that Mines was sane at the time of the capital offense. In addition, other witnesses agreed with the point made by Grigson in discussing the significance of Mines’s invocation of his rights which was that criminal defendants have an incentive and propensity to simulate mental illness in an effort to avoid criminal liability.

For the Week of: 2/17/2008 Supreme Court rules in Danforth v. Minnesota On February 20, 2008, the Supreme Court issued its opinion in Danforth v. Minnesota, ruling that Teague v. Lane does not constrain the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion, i.e., states can provide relief for constitutional violations even where federal courts in habeas proceedings cannot. The decision was 7-2, the majority opinion being authored by Justice Stevens. Chief Justice Roberts dissented, joined by Justice Kennedy. The Chief Justice argued that the Supreme Court is the final arbiter of federal law, that a retroactivity determination is a question of federal law, and, therefore, state courts are bound by the Supreme Court’s retroactivity rulings. The Chief Justice further found the results of the majority’s decision to be “startling,” noting: “Of two criminal defendants, each of whom committed the same crime, at the same time, whose convictions became final on the same day, and each of whom raised an identical claim at the same time under the Federal Constitution, one may be executed while the other is set free – the first despite being correct on his claim, and the second because of it.”

Ninth Circuit affirms denial of habeas relief to Arizona death row inmate. On February 20, 2008, the Ninth Circuit (Callahan, with O’Scannlain and Graber) affirmed the denial of Daniel Cook’s habeas petition. Cook v. Schriro, ___ F.3d ___, 2008 WL 441825 (9th Cir. Feb. 20, 2008). The district court had granted a COA on four claims, plus on a procedural default ruling concerning two other claims. A little over one month before oral argument, the panel expanded the COA to include five additional claims that Cook had raised in his opening brief. In finding that Cook was not entitled to habeas relief, the panel ruled: (1) state court’s finding that Cook’s waiver of counsel was voluntary was not contrary to or an unreasonable application of Faretta; (2) because there is no Supreme Court case law holding that consistency clauses in plea agreements violate due process or are otherwise unconstitutional, the panel could not say that the state court unreasonably applied clearly established Federal law when it rejected Cook’s claim that was premised on the provision in the co-defendant’s plea agreement requiring consistent testimony; (3) Cook’s claim that the prosecutor presented false testimony failed because Cook did not establish any falsity; (4) state court did not unreasonably interpret prosecutor’s comment as referencing statements made by Cook in jail rather than on his failure to testify; (5) state court’s finding that other comment was rhetorical and not intended to draw attention to Cook’s failure to testify was supported by the record and objectively reasonable; (6) assuming that yet another remark did violate Griffin, it was harmless; (7) the state court reasonably interpreted another remark to be a fair comment on the evidence and not a violation of Doyle; (8) state court determination that Cook was not entitled to an instruction on second-degree murder because the evidence of premeditation was overwhelming and the defense was not directed at negating premeditation was objectively reasonable; (9) claim that pre-trial counsel was ineffective in failing to investigate mitigation was procedurally defaulted due to post-conviction counsel’s failure to include the issue in the rehearing motion or the petition for review as required by then-existing state law; (10) because Cook had no constitutional right to counsel at the rehearing stage of post-conviction review proceedings, ineffective assistance by post-conviction counsel could not provide cause to overcome the default; (11) constitutional challenge to preclusion of consideration of intoxication to negate knowledge for purposes of finding premeditation was waived due to lack of an objection at trial and procedurally defaulted because Cook failed to raise it as a federal claim on direct appeal; (12) district court properly found that claim related to trial court’s failure to order an additional mental health evaluation was procedurally defaulted; (13) claim that trial judge should have recused himself was procedurally defaulted because Cook’s challenge in state court relied on state law; and (14) the Arizona Supreme Court’s findings that the trial court adequately considered both intoxication and Cook’s psychological history when considering mitigation were not objectively unreasonable.

Fourth Circuit reverses grant of habeas relief issued to North Carolina death row inmate. On February 22, 2008, the Fourth Circuit (Williams with Motz and King) reversed the grant of habeas relief to Jimmie Lawrence on a claim of ineffective assistance by appellate counsel and affirmed the denial of two other claims. Lawrence v. Branker, ___ F.3d ___, 2008 WL 466743 (4th Cir. Feb. 22, 2008). One of the two aggravating factors found by the jury was that the capital crime was committed while Lawrence was engaged in the commission of a burglary. Burglary in North Carolina involves breaking and entering into a dwelling with intent to commit a felony. The underlying felony here was the murder itself. (Lawrence had entered the home where his ex-girlfriend was living and shot her current boyfriend.) The district court had concluded that the burglary aggravator, on the facts of this case, was unconstitutional because it essentially amounted to aggravation of the first-degree murder based on the murder itself. Thus, the aggravator failed to serve the narrowing function required of aggravating circumstances by the Eighth Amendment and appellate counsel, in the district court’s view, rendered ineffective assistance by failing to challenge the aggravator on appeal. The panel, in contrast, found that appellate counsel was not ineffective. The panel was not convinced that any error had even occurred, noting that burglary required more than intent to commit a felony but also breaking and entering a home. Thus, burglary may well provide the requisite narrowing irrespective of the felony underlying the burglary charge. The panel also found that the district court had erroneously relied on state case law precluding use of the felony underlying a felony-murder conviction as an aggravator. That case was expressly inapplicable to cases like Lawrence’s where he was also convicted of premeditated murder. In addition, the panel pointed out that in at least one case the North Carolina Supreme Court refused to find state or federal constitutional error where, as in Lawrence’s case, the burglary conviction was used as an aggravator even though the felony underlying the burglary was the murder. Because the panel concluded that a reasonable appellate attorney would likely have concluded that a challenge to the burglary aggravator had little chance of success, it was unable to find that appellate counsel rendered deficient performance by failing to include it in the appeal. But even assuming that appellate counsel had been ineffective, the panel found relief precluded by the AEDPA because the state court’s rejection of the claim was not contrary to or an unreasonable application of Strickland. Turning to Lawrence’s cross-appeal, the panel first addressed Lawrence’s claim that trial counsel was ineffective for conceding Lawrence’s guilt of kidnapping and rape without his consent. It found that the claim was procedurally defaulted because, as found by the state post-conviction court when it was raised for the first time, it could have been, but was not, raised on direct appeal. In addition, the panel concluded the claim was without merit given Lawrence’s express authorization for his counsel to pursue a defense of diminished capacity and voluntary intoxication for all charges in the indictment, and Lawrence’s understanding that this defense would require concession of “some things.” Lawrence failed to come forward with evidence rebutting the state court’s factual findings. In addition, the state court’s denial of the claim was not contrary to or an unreasonable application of Strickland. Lawrence’s final claim involved allegations of due process violations at the state post-conviction proceeding. The panel found that the claim was not cognizable on federal habeas review.

Habeas relief denied to death row inmate in the Southern District of Texas following an evidentiary hearing. On February 20, 2008, United States District Judge Melinda Harmon ruled that Gaylon Walbey was not entitled to habeas relief on his claim of ineffective assistance of counsel at the penalty phase. Walbey v. Quarterman, G-99-496 (S.D. Tex.) (The other claims in his petition had been previously denied.) Walbey had received an evidentiary hearing on the claim in state court at the conclusion of which the trial court recommended that habeas relief be granted. The Texas Court of Criminal Appeals responded with a two page order stating, in pertinent part, “we reject the judge’s conclusions of law as not supported by the record. We further find that applicant has failed to meet his burden to show his counsel was ineffective. The relief sought is denied.” The claim was then raised in federal habeas proceedings along with numerous other claims. Summary judgment in favor of respondent was granted by United States District Judge Samuel Kent. (The case was later transferred to Judge Harmon.) On appeal, the Fifth Circuit concluded that the habeas court’s factual findings were not entitled to a presumption of correctness. Because, however, the Texas Court of Criminal Appeals had failed to provide any reasoning for its decision, and unresolved factual disputes existed concerning trial counsel’s credibility and his investigation of mitigation, the Fifth Circuit remanded for an evidentiary hearing on the claim. The case was referred to a magistrate judge who conducted the evidentiary hearing. The magistrate judge made factual findings and recommended that relief be granted to Walbey. Judge Harmon rejected the recommendation, finding after lengthy discussion: “the Court of Criminal Appeals’ denial of habeas relief was not contrary to, nor an unreasonable application of, Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Walbey committed a vicious, unimaginably savage, crime. Trial counsel presented the jury with an outline of his life. By filling in that outline, Walbey has not shown that the Court of Criminal Appeals was unreasonable in finding no Strickland violation. In particular, weakly supported psychological justifications for the crime ring hollow in comparison to a comprehensive review of the facts. The AEDPA’s deferential standard indicates that Walbey is not entitled to federal habeas relief.” Judge Harmon did sua sponte grant a COA, however.

Last week, habeas petitions filed by two Texas death row inmates denied in the Southern District of Texas On February 15, 2008, United States District Judge Nancy Atlas granted respondent’s motion for summary judgment, denied Jonathan Green’s habeas petition and sua sponte denied a COA. Green v. Quarterman, 2008 WL 442356 (S.D. Tex. Feb. 15, 2008). Judge Atlas ruled, among other things, that Green’s Atkins and Atkins-related claims were unexhausted and would now be procedurally barred in Texas if presented there. Judge Atlas noted that “[a]ny argument that mental retardation itself constitutes ‘actual innocence of the death penalty’ by virtue of the fact that mental retardation is a constitutional bar to execution under Atkins has been implicitly rejected by the Fifth Circuit. See Moore v. Quarterman, 491 F.3d 213, 220-24 (5th Cir. 2007) (finding Atkins claim unexhausted and procedurally defaulted).” Judge Atlas went on to rule, however, that the Atkins claim was also without merit as Green failed to present supporting evidence. As for the defaulted claims seeking to extend Atkins to the mentally ill, Judge Atlas found they were also barred by Teague. Judge Atlas dismissed without prejudice Green’s claim that he is incompetent to be executed because it is not yet ripe. A claim that Green’s constitutional rights were violated by the jury’s return of a general verdict of guilt of capital murder without specifying whether it was based on kidnapping or sexual assault was found to be governed by rather than Apprendi. Also rejected were several allegations of ineffective assistance by trial counsel. On February 13, 2008, United States District Judge Ewing Werlein, Jr., issued a memorandum opinion and order granting respondent’s motion for summary judgment and denying Yosvannis Vallee’s habeas petition. Valle v. Quarterman, 2008 WL 416241 (S.D. Tex. Feb. 13, 2008). Judge Werlein also sua sponte denied a COA. A number of the claims rejected by Judge Werlein concerned the inability of the defense team to present direct evidence about Valle’s childhood because he had grown up in Cuba and travel restrictions to and from Cuba prevented him from calling certain witnesses. Judge Werlein also found no constitutional error in the trial court’s ruling precluding Valle from playing the audio portion of a videotape of Valle’s mother taken in Cuba by the mental health expert’s assistance. According to Judge Werlein, “the videotaped statements by Valle’s mother contain no compelling indicia of reliability and in any event are not so momentous or consequential to Valle’s mitigation case as to take on constitutional proportions that overcome their hearsay character.” In rejecting a claim of ineffective assistance of counsel in failing to adequately develop and present mitigating evidence, Judge Werlein noted, among other things, that proposed testimony about PTSD was “double-edged” in that it could have elicited sympathy for Valle but also could have “substantially strengthen the State’s future dangerousness argument by demonstrating that Valle is unable, or has great difficulty, reining in his violent impulses.” Therefore, it could not be assumed that the mental health evidence developed post-trial would have helped Valle’s case. Also rejected were claims that defects in the Texas statutory death penalty scheme prevent meaningful appellate review of death sentences.

United States District Judge Hittner denies habeas relief to two Texas death row inmates in the Southern District of Texas On February 22, 2008, United States District Judge David Hittner issued a memorandum and order granting respondent’s motion for summary judgment, and denying Michael Perry’s habeas petition and request for discovery. Perry v. Quarterman, 07-1032. Judge Hittner also sua sponte denied a COA. Claims denied were: ineffective assistance of counsel at both phases of the trial, Brady violations, Texas’s special mitigation issue is unconstitutional, prosecution presented false testimony by Dr. Walter Quijano concerning whether Perry would be dangerous in the future, execution is prohibited because Perry was 19 at the time of the crime and his mental status was more similar to a juvenile than an adult, and cumulative error. Last week, on February 12, 2008, Judge Hittner issued a memorandum and order granting respondent’s motion for summary judgment and denying and dismissing Keith Thurman’s habeas petition. Thurman v. Quarterman, 06-2833. Judge Hittner also sua sponte denied a COA. The habeas petition was filed one day after the federal limitations period had run and was found to be barred by the statute of limitations. Judge Hittner rejected the argument that the petition was timely under Fed. R. Civ. Pro., Rule 6(a)(3) which concerns extending the limitations period when the clerk’s office is inaccessible on the last day for filing. The basis for the argument was that the time stamp machine was not working when federal habeas counsel attempted to file the petition after hours on the final day of the limitation period. Judge Hittner pointed out that the petition could have been filed during office hours. He also noted that federal habeas counsel had offered the same excuse in at least one other capital case and the petition in that case had been dismissed as untimely. This put federal habeas counsel on notice at least five and a half months before the Thurman filing that there could be a problem in attempting after hours filing and that any problem would not provide an excuse for failing to comply with the limitation period. Also rejected was counsel’s claim that there should be equitable tolling for the 56 days it took between the request for appointment of counsel and counsel’s actual appointment. Notably, federal counsel had been appointed almost nine months before the statute of limitations expired, proving the time needed to prepare and file the petition. Judge Hittner went on to find that the claims in the petition were also without merit. A claim of ineffective assistance of counsel for failing to investigate Thurman’s family history was unexhausted and would be found to be procedurally barred if now presented to the Texas courts. Thurman’s claim of ineffective assistance by state post-conviction counsel provided neither independent grounds for relief nor cause to excuse the default of the trial counsel ineffectiveness claim.

For the Week of: 12/9/2007 Death sentence commuted by Kentucky Governor On December 10, 2007, Kentucky Governor Ernie Fletcher commuted Jeffrey Devan Leonard´s death sentence to a sentence of life imprisonment without parole. Leonard was also known as James Earl Slaughter. The basis for the commutation was Governor Fletcher´s belief that Leonard received ineffective assistance from his trial attorney. Leonard had been granted habeas relief by a federal district court on his claim that counsel was ineffective at the sentencing phase of the trial but the Sixth Circuit reversed in a 2-1 decision. Judges Cole, Martin, Daughtrey, Moore and Clay later dissented from the denial of rehearing en banc. The vote on the en banc petition had been seven to seven.

For the Week of: 12/2/2007 Ninth Circuit affirms denial of successive habeas petition by California death row inmate. On December 4, 2007, the Ninth Circuit (Rymer with Gould; concurrence by McKeown) affirmed the denial of Kevin Cooper’s successive habeas petition. Cooper v. Brown, ___ F.3d ___, 2007 WL 4233685 (9th Cir. Dec. 4, 2007). (Cooper had received authorization to file the successive petition by the Ninth Circuit sitting en banc.) The panel first found no abuse of discretion in the district court’s denial of several discovery requests or of Cooper’s request to expand the record. Next, it found no abuse of discretion in how the district court arranged for the testing ordered by the Ninth Circuit. (DNA testing was performed on hairs found at the crime scene. Testing was also conducted on a shirt to determine whether blood previously associated with Cooper’s DNA had been planted there.) Regarding testing to determine the presence of EDTA in the blood on the shirt, the panel found, among other things, that the district court had discretion to conclude that the testing failed to meet the Daubert standard. The panel also found that Cooper’s complaint about the district court’s refusal to allow evidence about possible third party suspects was belied by the record. Limiting Cooper’s inquiry into possible witness tampering was not an abuse of discretion given the lack of indication that anything of probative value would be forthcoming. Regarding the district court’s refusal to permit Cooper to examine a criminalist who was responsible for examining and testing several items of evidence, the panel pointed out that Cooper had the opportunity to question him in a state hearing and the district court was not obligated to allow further questioning. As for Cooper’s request to test certain evidence to determine if tampering occurred, the related claims were both procedurally defaulted and had been previously adjudicated. Further, because one of the blood samples had not been used for anything material, any tampering was irrelevant. An adverse state court finding concerning a cigarette that was in evidence had not been overcome by Cooper. Cooper’s desire for additional questioning of expert witnesses was rejected by the panel on the ground that “ample opportunity for expert input and consultation was afforded.” The district court committed no error in precluding Cooper from presenting testimony from an informant who could only testify to hearsay and speculation which was unrelated to the prosecutor’s Brady obligations. Other evidence was properly excluded because it was available to Cooper at the time of trial. Regarding Cooper’s desire to call the surviving victim, who gave a somewhat inconsistent description of the assailant when making a statement in the district court pursuant to The Justice For All Act, the panel found that § 2254(e)(2)(B) barred a hearing as the jury knew that the victim had given inconsistent statements and yet convicted Cooper anyway. Turning to the merits of Cooper’s claims, the panel agreed with the district court’s conclusion that Cooper’s evidence of innocence was insufficient to meet the Schlup test, the AEDPA successor statute, or the Herrera standard. Nor was the state court’s rejection of his innocence claim “contrary to or an unreasonable application of clearly established federal law.” As for Cooper’s claim that the prosecution tampered with evidence, Cooper failed to provide convincing evidence why the state court’s adverse finding was not entitled to deference. Regarding allegations that material evidence was suppressed, the panel found no Brady violation. The panel was not firmly convinced that the state and district courts were wrong in finding that bloody coveralls linked to a third party but destroyed by the police were not material exculpatory evidence in Cooper’s case. The panel also was not convinced that the district court erred in finding that no police officers were present at a bar where possible third party suspects were seen and so there was no suppression of evidence. Rumors heard by the police about the suspicious men in the bar “could not have been exculpatory, impeaching or material.” The panel agreed with the district court’s finding that Cooper failed to establish that no reasonable juror would have convicted him had the surviving victim been called to testify rather than the jury hearing his prior statements. Assorted allegations of ineffective assistance by trial counsel and constitutional error in destruction of the bloody coveralls were summarily rejected. Finally, the panel ruled that Cooper was not entitled to relief on his cumulative error claim. It concluded: “As the district court, and all state courts, have repeatedly found, evidence of Cooper’s guilt was overwhelming. The tests that he asked for to show his innocence ‘once and for all’ show nothing of the sort.” Judge McKeown wrote a concurring opinion. She was troubled by what she viewed as an inability to determine “once and for all” whether Cooper is guilty or innocent. This was because “[s]ignificant evidence bearing on Copper’s culpability has been lost, destroyed, or left unpursued . . ..” After discussing the problems with the evidence, Judge McKeown concluded: “The habeas process does not account for lingering doubt or new evidence that cannot leap the clear and convincing hurdle of AEDPA. Instead, we are left with a situation in which confidence in the blood sample [linked to Cooper] is murky at best, and lost, destroyed or tampered evidence cannot be factored into the final analysis of doubt. The result is wholly discomforting, but one that the law demands.”

For the Week of: 11/11/2007 Fourth Circuit affirms denial of habeas relief to North Carolina death row inmate. On November 13, 2007, the Fourth Circuit (Wilkinson with Niemeyer and Shedd) affirmed the dismissal of Jeffrey Meyer’s federal habeas petition. Meyer v. Branker, ___ F.3d ___, 2007 WL 3347698 (4th Cir. Nov. 13, 2007). The panel first rejected Meyer’s claim that his guilty plea to the two counts of first degree murder was not voluntary and intelligent because he did not understand that he was admitting guilt to premeditated murder rather than felony-murder. This was significant because if he had been convicted of only felony murder, robbery and burglary aggravators would not have been applicable at the sentencing phase. The panel found: “At Meyer’s plea colloquy, the court carefully explained to Meyer that he was facing two counts of first degree murder. Meyer confirmed that he understood the nature of the charges, having discussed them with counsel. Meyer thus pled with full knowledge that his guilty plea was an admission to killing the Kutzs with ‘malice aforethought,’under any theory available to the State. Since the State possessed overwhelming evidence that Meyer acted with premeditation and deliberation, his pleas made premeditation and deliberation an admitted fact.” As for Meyer’s contention that he was unaware of the consequences of his plea in that he did not understand that the plea would enable the prosecution to use the underlying felonies as aggravating factors, the panel held that “even if true, it does not entitle Meyer to relief.” This was because “[t]he fact that Meyer’s plea enabled his underlying felonies to be submitted as aggravating factors was merely a ‘collateral’ consequence of his plea,” rendering his knowledge on this issue irrelevant to the constitutional validity of his plea. The panel next rejected Meyer’s claim that trial counsel was ineffective in failing to inform him that his plea constituted an admission of premeditated murder and that the underlying felonies could be used as aggravating factors under the plea. It found that Meyer could not demonstrate that he would have insisted on going to trial if he knew his underlying felonies would become aggravating factors at sentencing. The panel reached this conclusion given that “Meyer’s sole goal was to avoid the death penalty” and “[w]ith virtually no chance of establishing actual innocence or successfully contesting premeditation and deliberation, a guilty plea may have offered his best chance of not being sentenced to death.” The panel also affirmed the denial of Meyer’s claim that trial counsel was ineffective at the final resentencing hearing for failing to present mental health evidence. Because mental health evidence had been unsuccessful in obtaining a life verdict in two prior sentencing hearings, the panel concluded that counsel’s strategic decision to try something different could not be considered deficient performance. (Meyer’s two prior death sentences were reversed for unrelated reasons). In addition, the panel found that Meyer could not establish prejudice from the omission. Similarly unsuccessful was Meyer’s claim that counsel was ineffective in the final resentencing proceeding for failing to present evidence of remorse. As with the mental health evidence, trial counsel made a reasonable decision to omit remorse evidence based on its failure to move the jurors in a prior sentencing hearing. Meyer was also unable to establish prejudice “[g]iven the overwhelming evidence against [him] and the fact that two previous sentencing juries, one having heard testimony on remorse, sentenced Meyer to death.” Finally, the panel ruled that the state court acted reasonably in denying Meyer’s claim that his right to present mitigating evidence was violated by the exclusion of evidence that his co-defendant did not receive a death sentence. Although the panel found that such evidence did not fall under Lockett, it clarified that it did not mean to suggest “that courts are prohibited from considering a co-perpetrator’s sentence.”

Federal district court stays execution of Florida death row inmate On November 14, 2007, United States District Judge Anne Conway granted Mark Schwab´s emergency motion to stay execution pending the Supreme Court´s decision in the Baze case. Schwab v. McDonough, 6:07-cv-1798-Orl-22KRS. She also stayed consideration of Schwab´s civil rights challenge to Florida´s execution procedures pending resolution of Baze. The civil rights action alleged: (1) the combination of drugs unlawfully risks subjecting Schwab to an excruciatingly painful and tortuous death; (2) the anesthesia procedures lack medically necessary safeguards; (3) the existing procedures do not require personnel who have minimum qualifications or expertise; and (4) the defendants do not have appropriate procedures or equipment to deal with emergencies. Although noting that Schwab could be accused of undue delay in bringing his law suit, Judge Conway concluded that the Baze cert grant constituted an "extraordinary circumstance that overmatches considerations of delay, at least insofar as a stay is concerned."

Eleventh Circuit vacates stay of execution for Florida death row inmate On November 15, 2007, the Eleventh Circuit (per curiam -- Dubina, Carnes and Hull) vacated the stay of execution issued the day before by Judge Conway of the Middle District of Florida. Schwab v. Secretary, Department of Corrections, 07-15329. The panel stated: "The district court´s action in granting the stay is contrary to the unequivocal law of this circuit that because grants of certiorari do not themselves change the law, they must not be used by courts of this circuit as a basis for granting a stay of execution that would otherwise be denied." Looking to the Florida Supreme Court´s recent decision rejecting a challenge to Florida´s lethal injection protocol, the panel expressed its belief that the ultimate decision in Baze is unlikely to increase Schwab´s likelihood of success on the merits. In addition, circuit precedent mandates that Schwab´s stay request be denied based on laches, which is not at issue in the Baze case.

Supreme Court stays Florida execution On November 15, 2007, the United States Supreme Court granted Mark Schwab´s application to stay the execution that was scheduled for that day. Schwab v. Florida. The stay was granted "pending the timely filing and disposition of a petition for writ of certiorari." The petition will seek review of the Florida Supreme Court´s rejection of Schwab´s constitutional challenge to Florida´s lethal injection protocol.

Texas Court of Criminal Appeals finds death row inmate entitled to life sentence under Atkins On November 14, 2007, the Texas Court of Criminal Appeals issued an opinion finding that Gregory Van Alstyne proved he is mentally retarded and ineligible for the death penalty. Ex Parte Van Alstyne, ___ S.W.3d ___, 2007 WL 3375149 (Tex. Crim. App. Nov. 14, 2007). A majority of the court rejected the dissenter’s contention that a recorded media interview conclusively demonstrated that Van Alstyne was not mentally retarded.

Federal district court denies motions to dismiss civil rights challenge to Alabama’s lethal injection protocol. On November 16, 2007, United States District Judge W. Keith Watkins of the Middle District of Alabama issued an order denying the defendants’s motions for: (1) Judgment on the Pleadings and Alternative Motion for Summary Judgment Regarding Statute of Limitations; (2) Summary Dismissal Based on the Doctrine of Laches; and (2) Summary Judgment. McNair v. Allen, 2007 WL 4106483 (M.D. Ala. Nov. 16, 2007).

Florida Supreme Court denies relief to death row inmate. On November 15, 2007, the Florida Supreme Court affirmed the denial of Seburt Connor’s application for post-conviction relief and denied his habeas petition. Connor v. State, ___ So.2d ___, 2007 WL 3376748 (Fla. Nov. 15, 2007). The court rejected Connor’s arguments that he was denied effective assistance of counsel at trial due to counsel’s failure to: (1) object to allegedly false comments by the prosecutor about Connor’s criminal history during jury selection; (2) strike the jury panel after an outburst by Connor defending Fidel Castro; (3) object when the court used a euthanasia case as an example of where the death penalty would not be warranted; (4) object to comments on Connor’s right to remain silent; (5) adequately investigate and prepare for the guilt-innocence phase; (6) properly prepare to examine an expert at the sentencing phase regarding Connor´s criminal behavior; (7) present another expert at the sentencing phase; (8) present a background witness; and (9) present evidence of childhood abuse suffered by Connor. Also rejected were the following claims: (1) trial counsel suffered from a conflict of interest; (2) Crawford violation; (3) improper ex parte conduct by the trial court; (4) multiple mental disorders make executing Connor unconstitutional; (5) Florida’s mental retardation statute is unconstitutional; (6) lower court erred by summarily denying numerous claims without an evidentiary hearing; and (7) cumulative error. The claims in the habeas petition that was denied were: (1) death sentence violates Ring and Apprendi; and (2) ineffective assistance by appellate counsel.

Relief denied by Florida Supreme Court to another death row inmate. On November 15, 2007, the Florida Supreme Court affirmed the denial of Steven Evans’s motion for post-conviction relief and denied his habeas petition. Evans v. State, ___ So.2d ___, 2007 WL 3376837 (Fla. Nov. 15, 2007). The issues raised by Evans related to the post-conviction relief application were: (1) it is cruel and unusual punishment to execute a physically handicapped and mentally impaired individual; (2) counsel rendered ineffective assistance by failing to file a motion to suppress all of the evidence seized after his arrest on a faulty arrest warrant; (3) counsel rendered ineffective assistance by failing to prepare Evans to testify at trial, by failing to investigate the circumstances of his escape case, and by failing to mitigate the escape offense by presenting this evidence at trial; (4) counsel rendered ineffective assistance by failing to investigate and challenge forensic evidence and inculpatory admissions made by Evans and others and by failing to impeach various witnesses at trial; (5) counsel rendered ineffective assistance by failing to investigate and present the testimony of alibi witnesses; (6) counsel rendered ineffective assistance by failing to investigate mental state defenses and by failing to give vital information to the mental health experts; and (7) the cumulative error deprived him of a fair trial. Issues in the habeas petition included ineffective assistance by appellate counsel and a Ring challenge.

Florida Supreme Court again denies relief to death row inmate On November 15, 2007, the Florida Supreme Court affirmed the denial of Jason Stephens’s application for post-conviction relief and denied his habeas petition. Stephens v. State, ___ So.2d ___, 2007 WL 3377079 (Fla. Nov. 15, 2007). The issues in the post-conviction relief appeal were: (1) trial counsel rendered ineffective assistance during the penalty phase of trial; (2) trial counsel rendered ineffective assistance during the guilt phase of trial; (3) trial counsel was operating under a conflict of interest; (4) trial counsel rendered ineffective assistance by failing to pursue a motion requesting a jury interview; and (5) the trial court erred by instructing the jury regarding aggravating factors that did not apply. The claims raised in the habeas petition were: (1) appellate counsel was ineffective for failing to raise a prosecutorial misconduct claim; (2) appellate counsel was ineffective for failing to argue that instructing the jury on the HAC aggravator was fundamental error; (3) appellate counsel was ineffective for failing to argue that instructing the jury on the pecuniary gain aggravator was fundamental error; (4) the murder “in the course of a felony” aggravator is unconstitutional, and appellate counsel was ineffective for failing to raise this claim; (5) the aggravating circumstance of “the victim of the capital felony was a person less than 12 years of age” is unconstitutional, and appellate counsel was ineffective for failing to raise this claim; (6) the trial court failed to conduct an inquiry under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973); and (7) the execution of Stephens would constitute cruel and unusual punishment.

COA denied to Texas death row inmate. On November 15, 2007, the Fifth Circuit (per curiam – King, Higginbotham and Garza) issued an unpublished opinion denying a COA to Reginald Perkins. Perkins v. Quarterman, 2007 WL 3390953 (5th Cir. Nov. 15, 2007). The claims for which Perkins sought a COA were: (1) death sentence is barred by the Eighth Amendment under Atkins; (2) trial counsel rendered ineffective assistance by failing to investigate and present evidence of mental retardation; (3) trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at the punishment phase of his trial; (4) the Texas sentencing scheme unconstitutionally places the burden of proof for mitigation on the criminal defendant; and (5) the death sentence was unconstitutional because he is actually innocent. Regarding the Atkins claim, on which Perkins received a lengthy hearing in state court, the panel noted: “The crux of the matter is that not one of the three psychologists who evaluated Perkins was willing to definitively label him mentally retarded.”

In non-capital assault case, Fifth Circuit rules that state motion for DNA testing filed pursuant to Texas statute tolled federal habeas limitation period. On November 14, 2007, the Fifth Circuit (per curiam – Higginbotham, Smith and Owen) ruled that Wilbert Hutson’s motion for DNA testing constituted “other collateral review” such that it tolled the one-year limitation period for filing a federal habeas petition. Hutson v. Quarterman, ___ F.3d ___, 2007 WL 3355673 (5th Cir. Nov. 15, 2007). Under circuit precedent, only a motion or petition that actually seeks review of the judgment pursuant to which the convicted person is incarcerated can statutorily toll the federal habeas limitation period. Under the Texas statute, if the requirements for conducting DNA testing are satisfied, the convicting court is required to hold a hearing after the results come back and make a finding as to whether it is reasonably probable that the person would not have been convicted had the results been available during the trial of the offense. If the convicting court decides in favor of the inmate, the court is authorized to release the convicted person on bail pending the conclusion of court or pardon proceedings. The panel found: “Here, the motion for post-conviction DNA proceedings is seeking to challenge that judgment by potentially requiring that the trial court hold a hearing to determine whether it was reasonably probable that the convicted person would have been acquitted given the DNA results. In short . . . Hutson´s motion for DNA testing is a request for ‘review’ of the judgment pursuant to which he is incarcerated.”

Fifth Circuit refuses to expand COA or hold appeal in abeyance but orders supplemental briefing and oral argument on jury misconduct claim. On November 16, 2007, in an unpublished opinion, the Fifth Circuit (per curiam – Smith, Garza and Prado) denied Khristian Oliver’s request for a COA on additional issues, as well as the request to stay the appeal pending either return to state court for a hearing or for a hearing in the district court. Oliver v. Quarterman, 2007 WL 4014629 (5th Cir. Nov. 16, 2007). The panel did order supplemental briefing and oral argument on the claims for which Oliver received a COA from the district court, which concern the jury’s use of a Bible in sentencing deliberations. The parties were directed to focus on two issues: “(1) as a matter of law, did the jurors´ consultation of the Bible in the jury room constitute an external influence that raises a presumption of prejudice under clearly established federal law, as determined by the Supreme Court of the United States; and (2) if so, has the state rebutted that presumption here?”

Another untimely federal habeas petition filed in a Florida capital case. On November 13, 2007, in an unpublished opinion, the Eleventh Circuit (per curiam – Edmondson, Anderson and Dubina) affirmed the dismissal of Anthony Wainwright’s habeas petition on timeliness grounds. Wainwright v. Secretary, Dept. of Corrections, 2007 WL 3355559 (11th Cir. Nov. 13, 2007).

Federal habeas relief denied to Arizona death row inmate. On November 15, 2007, United States District Judge David Bury of the District of Arizona denied David Detrich’s amended habeas petition. Detrich v. Schriro, 2007 WL 4024551 (D. Az. Nov. 15, 2007). He also sua sponte granted a COA on the following: “Whether Claim B, alleging a violation of Petitioner’s right to effective assistance of counsel at sentencing based on counsel’s failure to investigate and present additional mitigation evidence concerning Petitioner’s childhood abuse and neglect, PTSD, history of and genetic propensity for substance abuse, developmental and neurological issues, familial love, and adaptation to prison, fails on the merits.”

For the Week of: 11/4/2007 Eleventh Circuit vacates order granting rehearing en banc in Alabama civil rights challenge to lethal injection On November 5, 2007, the Eleventh Circuit (Tjoflat, Anderson, Birch, Dubina, Black, Barkett, Hull, Marcus and Wilson) issued an order vacating the October 25, 2007 order which had granted Alabama´s petition for rehearing en banc (2007 WL 3104941) and remanded Daniel Siebert´s case to the panel "for consideration of the issues raised by State of Alabama in its Petition for Rehearing En Banc." Siebert v. Allen, 07-14956. Judge Edmondson did not participate. Judges Carnes and Pryor recused themselves.

Eleventh Circuit panel reverses denial of injunctive relief in Alabama lethal injection challenge On November 5, 2007, the Eleventh Circuit (per curiam -- Tjoflat, Barkett and Wilson) issued an opinion sua sponte vacating and reconsidering its earlier opinion and substituting a new one regarding Daniel Siebert´s lethal injection law suit. Siebert v. Allen, ___ F.3d ___, 2007 WL 3244633 (11th Cir. Nov. 5, 2007). In the new opinion, the panel concluded that "the district court erred in refusing to enjoin the Commissioner from carrying out Siebert´s execution pending the court´s final disposition of his ´as-applied´ claim, i.e., that the three-drug protocol to be used by Alabama during his execution by lethal injection, as applied to him, would violate his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment." The panel therefore remanded for further consideration of Siebert´s claim. (Siebert alleged that use of Alabama´s lethal injection protocol would be cruel and unusual because of substantial complications likely to arise because of serious illnesses he was recently diagnosed as suffering from.) The panel did, however, affirm the district court´s denial of a preliminary injunction on Siebert´s general challenge to Alabama´s three-drug protocol.

Supreme Court grants cert in Idaho death penalty case On November 5, 2007, the Supreme Court granted the warden´s cert petition in Arave v. Hoffman, 07-110. The Ninth Circuit had found that Hoffman was entitled to habeas relief on a claim that trial counsel was ineffective in advising Hoffman to reject a plea bargain. The advice was based on a then-recent Ninth Circuit decision finding Arizona´s death penalty scheme to be unconstitutional for reasons that counsel concluded would also apply to the Idaho scheme. The Supreme Court subsequently found the Ninth Circuit´s decision to be incorrect. The two questions in the cert petition are: (1) Because the Ninth Circuit did not require Hoffman to prove [trial counsel´s] recommendation constituted ´gross error´ and mandated [trial counsel] ´be prescient about the direction the law will take,´ did the Ninth Circuit err by rejecting this Court´s prohibition regarding the use of hindsight to conclude Hoffman established deficient performance? (2) Because Hoffman failed to allege he would have accepted the state´s plea offer but for [trial counsel´s] advice and the Ninth Circuit determined Hoffman´s decision to reject the offer was not a ´principled stand,´ did the Ninth Circuit err by concluding Hoffman established prejudice?" The Supreme Court added a third question to the case: "What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?"

Supreme Court reverses 11th Circuit on statute of limitations issue in Alabama capital habeas case On November 5, 2007, the Supreme Court issued a per curiam opinion reversing the Eleventh Circuit, ruling that an untimely state post-conviction petition does not toll the AEDPA limitation period even if untimeliness is an affirmative defense rather than a jurisdictional defect under state law. Allen v. Siebert, 06-1680. Justice Stevens, joined by Justice Ginsburg, dissented.

Florida Supreme Court refuses to stay Mark Schwab’s November 15th execution. On November 7, 2007, the Florida Supreme Court denied Mark Schwab’s motion to stay the pending execution date. Schwab v. State, ___ So.2d ___, 2007 WL 3286732 (Fla. Nov. 7, 2007). Justice Pariente wrote a concurring opinion, in which she stated: “Schwab should seek a stay from the United States Supreme Court and it should be that Court´s decision to determine whether it intends a de facto moratorium on the death penalty and whether the issues it is presently reviewing regarding lethal injection justify a stay of Schwab´s execution.” She also observed: “If I were in the executive branch and in charge of lethal injections for this state, I would urge the adoption of a one-drug protocol so that only a lethal dose of sodium pentothal would be necessary. (Footnote omitted.) Alternatively, I would explore the use of other drugs that carry less risk of pain than pancuronium bromide or potassium chloride. (Footnote omitted.) Further, I would consider other means to monitor the state of consciousness, such as the Bispectral Index (BIS) monitor, and would employ individuals who have the medical training and expertise necessary to adequately assess consciousness. However, to date, the United States Supreme Court has not signaled that it intends for the judiciary to engage in that level of scrutiny.” Justice Anstead dissented, joined by Justice Quince.

Eleventh Circuit affirms denial of habeas relief to Florida death row inmate On November 9, 2007, the Eleventh Circuit (Carnes with Anderson and Marcus) affirmed the district court’s denial of George Hodges’s federal habeas petition. Hodges v. Attorney General, State of Florida, ___ F.3d ___, 2007 WL 3307014 (11th Cir. Nov. 9, 2007). Although the district court had denied Hodges a COA, pursuant to a circuit rule Hodges succeeded in obtaining a COA from a circuit judge on two of the four issues he sought to appeal. Instead of moving for reconsideration of the denial of the COA on two of the claims, as allowed by circuit rules, Hodges instead filed merits briefing raising the two claims for which a COA was granted and one of the claims for which a COA had been denied. Hodges argued that the COA ruling was nothing more than “[a] ruling on a motion or other interlocutory matter,” which, under circuit rules, is “not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.” The panel rejected Hodges’s argument and struck the portions of Hodges’s briefs which discussed the uncertified claim. In so doing, it noted that a merits panel may still, in extraordinary circumstances not presented here, expand a COA. The first claim addressed was an alleged confrontation clause violation through the admission of out-of-court statements made by the victim prior to her murder. The statements related to Hodges’s efforts to convince the victim to drop indecent exposure charges against him. The Florida Supreme Court had found a state law violation but ruled that the error was harmless. The panel here disposed of the claim as it related to the guilt-innocence phase of the trial by finding any error harmless under Brecht. The evidence at issue went only to motive and other evidence of motive was presented. In addition, the other evidence of Hodges’s guilt was “strong.” (Hodges had confessed that he killed the victim to two witnesses on separate occasions. In addition, a witness placed his truck at the scene of the murder, and several witnesses disputed his alibi defense.) At the sentencing phase, additional hearsay statements from the victim were presented. The statements were offered to prove the statutory aggravating circumstance that the murder “was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.” The Florida Supreme Court found no error because state law permits hearsay evidence at the sentencing stage. The panel agreed. It also found, as its primary holding on the claim: “The Supreme Court´s statements in Davis and Crawford about forfeiture by wrongdoing and our holdings in Thevis and Rouco compel the conclusion that the Florida Supreme Court´s decision denying Hodges relief on his Confrontation Clause claim is not a decision that was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” The second claim on which a COA had been granted concerned Hodges’s absence from the courtroom when the jury received, based on a request it had sent to the court during sentencing deliberations, additional instructions on aggravating and mitigating circumstances. Hodges was not present because of a suicide attempt he had made which resulted in his hospitalization. Hodges argued that he was denied his constitutional right to be present during all critical proceedings. The panel agreed with the district court’s conclusion “that the state court holding that Hodges could and did waive his right to be present by virtue of his own deliberate conduct was not contrary to or an unreasonable application of any Supreme Court precedent.” The panel noted Hodges’s failure to point “to any Supreme Court decision holding that one whose own voluntary conduct has caused him to be absent from trial may successfully claim that the trial may not continue without him.” The panel went on to rule in the alternative that even if it were convinced that the state court’s waiver finding was contrary to or an unreasonable application of Supreme Court precedent, it would still deny relief “because the Florida Supreme Court´s additional holding that the small part of the sentence proceedings that Hodges missed was not a critical part of the trial is due deference under § 2254(e)(1).” Further, “[t]he Florida Supreme Court´s decision that the part of the sentence stage before the jury that Hodges missed was not a critical stage of the trial and sentence proceedings is not ‘contrary to, [nor does it] involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’”

Federal habeas petition filed by Florida death row inmate is denied. On November 6, 2007, United States District Judge Elizabeth Kovachevich of the Middle District of Florida denied Melvin Trotter’s federal habeas petition. Trotter v. Secretary, Department of Corrections, 2007 WL 3326672 (M.D. Fla. Nov. 8, 2007). Among the rulings in the opinion was that a statutory aggravating factor had been applied to Trotter in violation of the Ex Post Facto Clause, and the Florida Supreme Court’s determination that no such violation occurred was an unreasonable application of Supreme Court precedent. Judge Kovachevich concluded, however, that the error was cured by the trial court’s express finding that the sentence would have been the same even if it had eliminated the aggravator at issue from the weighing process. (Three valid aggravators remained.) In addition, Judge Kovachevich found that the error was harmless under Brecht. Similarly, Judge Kovachevich ruled that an ex post facto violatio