Opinion
S. Ct. No. M1990-00011-SC-DPE-DD.
Filed: May 14, 2007.
UNOPPOSED MOTION TO SET EXECUTION DATE NO EARLIER THAN FORTY-FIVE DAYS AFTER ENTRY OF AN EXECUTION ORDER
Michael Joe Boyd, now known as Mika'eel Abdullah Abdus-Samad, through undersigned counsel, requests this Court not set an execution date any earlier than forty-five days after entry of an execution order, in order to allow time for clemency proceedings before Governor Bredesen and the Tennessee Board of Probation and Parole. In support of this motion, Boyd would show unto the Court as follows:
1. The State has requested this Court reset Boyd's execution date no earlier than seven days after entry of an order. Boyd has responded to this motion by requesting a certificate of commutation. This request has been filed contemporaneously with this motion.
2. Originally this Court set an execution date for Michael Boyd for March 7, 2007. On January 5, 2007, more than two months prior to the scheduled execution date, Boyd petitioned Governor Bredesen for a commutation of his sentence.
3. Michael Boyd has an excellent case for a commutation, which is in part set forth in the request to this Court for a certificate of commutation, filed contemporaneously with this pleading.
4. Because Governor Bredesen granted a reprieve to all inmates with pending execution dates up until May 2, 2007, the Governor has not acted upon Mr. Boyd's pending commutation request.
5. Typically, Governor Bredesen refers clemency matters to the Tennessee Board of Probation and Parole for a non-binding recommendation.
6. Because Mr. Boyd has an excellent case for a commutation, and further because Governor Bredesen will need some time to refer this matter to the Board to conduct a hearing, Mr. Boyd requests any execution date be set off AT LEAST forty-five days in the future so that the Governor and the Parole Board have ample time to consider the merits of his request for commutation.
7. Assistant Attorney General Jennifer Smith informed counsel that the State does not oppose the relief requested.
WHEREFORE, PREMISES CONSIDERED, Mr. Boyd respectfully requests his execution date be set NO EARLIER THAN forty-five days after entry of the Court's order.
Respectfully submitted,
Robert L. Hutton, #15496
GLANKLER BROWN, PLLC
1700 One Commerce Square
Memphis, Tennessee 38103
(901) 525-1322
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Response in Opposition to Motion to Set Execution Date and Request for a Certificate of Commutation has been sent via U.S. Mail to:
Jennifer Smith
Assistant Attorney General
425 5th Avenue North
Nashville, Tennessee 37243
this ___ day of May, 2007.
RESPONSE IN OPPOSITION TO MOTION TO SET EXECUTION DATE AND REQUEST FOR A CERTIFICATE OF COMMUTATION
Michael Joe Boyd (now known as Mika'eel Abdullah Abdus-Sarnad) requests this Court issue a Certificate of Commutation of his sentence of death, as authorized by T.C.A. § 40-27-106 and Tennessee Supreme Court Rule 12.4(A). A certificate is needed in this case to prevent a horrible miscarriage of justice, since:
• Trial counsel never presented a case for life during the penalty phase of the trial.
• Neither this court nor the federal courts have reviewed the merits of Boyd's meritorious claim of trial counsel's failure to make a case for life, since post conviction counsel procedurally defaulted the claim.
• The facts of this case are not egregious. In fact, prior to trial, the district attorney offered Michael Boyd a 35 year plea bargain offer.
• The District Attorney who prosecuted Michael Boyd believes a 35 year sentence to be just and reasonable in light of the totality of the circumstances.
• Michael Boyd was never convicted of intentional murder. Rather, he was convicted of a felony murder in the perpetration of a robbery.
• There is only one aggravating circumstance supporting the sentence of death.
• A codefendant, Terry Yarber was tried separately arising out of the same series of events and was acquitted.
• Michael Boyd has a compelling mitigation case for life.
STANDARD
Tennessee law provides that the Governor may commute a death sentence to life imprisonment upon the certificate of the Supreme Court, if "there were extenuating circumstances attending the case, and that the punishment ought to be commuted." T.C.A. § 40-27-106. When considering the recommendation, the court should consider only facts contained in the record or facts which are uncontroverted. Workman v. State, 22 S.W. 3d 807, 808 (Term. 2000).
As this response will demonstrate, there are extenuating facts and circumstances which are uncontroverted or supported by the record and warrant a certificate recommending a commutation of his sentence of death.
1. The underlying facts of Michael Boyd's case are not egregious.
During the early morning hours of November 8, 1986, William Price and David Hippen, both white drug dealers, drove into an impoverished South Memphis neighborhood that was ninety-nine percent African American. The men were seeking the services of two prostitutes. After inquiring from a stranger on the street, the two men drove to Raiford's Lounge and solicited prostitutes Barbara Lee and Renita Tate who got into the van with the men and directed them to the Lorraine Motel. The men were tailed by a 98 Oldsmobile at the direction of Michael Boyd who was Barbara Lee's "old man." Boyd wanted to make sure the men didn't run off with the women. Boyd was accompanied by Terry Yarber and Bruce Wright.
See 11-30-86 Memphis Police Department supplementary offense report detailing that federal authorities had placed Price and his father under suspicion for transporting drugs and also possibly guns,(Exhibit!,); Hippen was convicted of selling 63 pounds of cocaine valued at 4 million dollars-but Michael Boyd's jury was deprived of this information. Motion in Limine at Trial Transcript pp. 422-430(Exhibit 2); State v. Boyd, 797 S.W. 2d 589, 592 (Tenn. 1990)(Exhibit 3).
See State v. Boyd, 797 S.W. 2d at 592 (Tenn. 1990) (Exhibit 3): see also 1990 census data (Exhibit 4).
Boyd, 797 S.W. 2d at 592 (Exhibit 31.
Id.; Trial Tr. (Renita Tate) p. 528 (Exhibit 5).
Trial Tr. (Bruce Wright), pp. 576, 585 (Exhibit 6).
Boyd, 797 S.W. 2d at 592 (Exhibit 3).
Price drove the van to the Lorraine Motel, and produced a $ 100 bill to pay for two cheap motel rooms for the couples. When the prostitutes offered to take the money inside the motel to get change, Price told them that one woman could leave with the money, but the other would have to stay in the van as security. One of the prostitutes then yelled toward the 98 Oldsmobile to see whether anyone had change for the $ 100 bill Boyd responded he could make change, got out of the car, approached the passenger's side of Price's van, and extended himself into the passenger compartment of the van less than a foot from Hippen's face and pointed a pistol at Hippen in the driver's seat. Boyd then said "I want your money or I'm going to kill you." Hippen then gave Boyd his wallet containing thirty dollars. Price then grabbed Boyd's arm and a struggle ensued in which Price was shot, fell out of the van and died.
Id.
Id.; Trial Tr. (David Hippen) p. 477 (Exhibit 7).
Boyd, 797 S.W. 2d at 592 (Exhibit 3).
Id.; Trial Tr. (Bruce Wright) pp. 576-577 (Exhibit 6); Boyd, 797 S.W. 2d at 592 (Exhibit 3).
Boyd, 797 S.W. 2d at 592 (Exhibit 3).
Id.
Id.
Michael Boyd was subsequently charged with premeditated murder, felony murder, and aggravated robbery. Terry Yarber was also charged with aggravated robbery arising out of the same set of facts, but tried by a separate jury. The District Attorney offered Boyd a plea bargain of 35 years which remained in effect until the day of trial which he declined. After trial, the jury acquitted Boyd of the first degree premeditated murder, but convicted him of felony murder (i.e. the killing of William Price in the perpetration of a robbery). Boyd was sentenced to death. Terry Yarber in his separate trial was acquitted by the jury. 2. Only one aggravating circumstance supports the death sentence.
Trial Technical Record, pp. 138-144 (Exhibit 8).
Criminal Court Clerk Record, State v. Yarber (Exhibit 9).
Affidavit of James C. Beasley, Jr. (Exhibit 10)
Trial Technical Record, p. 176 (Exhibit 8).
Boyd, 797 S.W. 2d at 592 (Exhibit 3).
Criminal Court Clerk Record, State v. Yarber (Exhibit 9).
The sole aggravating circumstance supporting the death sentence, was a 1983 guilty plea by Mike Boyd to second degree murder resulting in a ten year sentence (parole eligibility after serving thirty percent). On June 5, 1983 Michael Boyd (age 23) the rejected boyfriend of Margaret Lewis, came to her home in Memphis, and was arguing with her. Herbert Woodland, the new boyfriend, came to the door of the bedroom and asked her to leave. Boyd in a state of anger shot and killed Herbert Woodland. The facts of this prior case involve a heat of the moment argument over a girlfriend — much more akin to voluntary manslaughter. 3. Michael Boyd was not convicted of intentional murder-rather the jury found him guilty of felony murder in the perpetration of a robbery.
See State v. Boyd, 959 S.W. 2d 557 (Tenn. 1998) (Exhibit 11).
10-17-83 Transcript of Guilty Plea Hearing, p. 4 (Exhibit 12)
Id.
Id.
TechRec pp. 176. (Exhibit 8).
Michael Boyd's jury considered charges of premeditated first degree murder, and intentional second degree murder which were charged but rejected by the jury. Rather, the jury found Boyd guilty of felony murder in the perpetration of a robbery. Thus the jury did not find an intent to kill William Price — only an intent to rob him.
Id. at p. 176, (Exhibit 8).
4. The district attorney offered Michael Boyd a plea bargain of thirty-five years.
Judge James Beasley, the Division Ten Criminal Court Judge for Shelby County, at the time was the lead prosecutor in Michael Boyd's case. Beasley offered Boyd a thirty-five year sentence plea bargain, which remained in effect up until the commencement of the trial. Beasley believes a thirty-five year sentence to be fair, just and reasonable in light of the totality of the circumstances.
Affidavit of James C. Beasley, Jr. at ¶ 3, (Exhibit 10).
Affidavit of James C. Beasley, Jr. at ¶ 5, (Exhibit 10).
Judge Beasley's affidavit also states that as a prosecutor and a judge he has been involved in a lot of murder prosecutions — and the facts of Michael Boyd's case are not in the class of the worse cases he's seen. In fact, many cases Judge Beasley has been involved with that resulted in life sentences involved more egregious facts than those of Michael Boyd's case. 5. Michael Boyd's trial counsel failed to make a case for life
Affidavit of James C. Beasley, Jr. at ¶ 7, (Exhibit 10).
At the sentencing phase, Boyd's appointed counsel told the jury in an opening statement that they would "hear from people who knew him, and have known him for years and years, and know him as something a little bit different from what you would think. The people who nurtured him and cared for him, and that he cared for, when his own family didn't, and they will be here and testify."
Trial Transcript (Sentencing Opening Statement p. 827, (Exhibit 13).
After Michael Boyd testified in the penalty phase, defense counsel called for "Anthony Boyce," in front of the jury, but Anthony Boyce did not answer. The court then asked the defense to call their next witness. Mr. Thompson replied "your honor, the next witness is Ms. Withers, and she is not here either. Thompson told the trial court that earlier in the day Ms. Withers had to leave to take her son to the doctor. Thompson, who failed to have mitigation witnesses Anthony Boyce, Randy and Jean Withers under subpoena, and ready to testify, then presented no case for life. Defense counsel's actions thus transformed prospective mitigation witnesses into prosecution witnesses implying that not even those who should care most for Boyd showed any concern as to whether he lived or died.
Trial Transcript, p. 867 (Exhibit 14V)
Trial Transcript, p. 868 (Exhibit 14).
Trial Transcript, p. 868 (Exhibit 14).
This tragedy of errors caused defense counsel Ed Thompson to remark "Your Honor, this is one of the great distressing moments of my legal life. The court then commented with respect to the witnesses' absence "apparently they're not too concerned, Mr. Thompson."
Trial Transcript, p. 868 (Exhibit 14)
Trial Transcript, p. 869 (Exhibit 14).
Other than hearing from Michael Boyd himself, the jury heard no mitigation evidence — no case for life. As indicated in the attached affidavit, Anthony Boyce was more than willing to testify and make a case for life. The failure to have witnesses under subpoena resulted in no case for life being presented.
11/9/06 Affidavit of Anthony Boyce Canada ¶¶ 10-12, (Exhibit 15).
A. A compelling case for life could have been presented to the jury.
Michael Boyd was born to a thirteen-year old, poor, under-educated mother. Boyd's father was "just a passing stranger in the night." His mother took him home to a three-room north Memphis apartment that housed twelve others. A child facing such risk factors requires a strong compensatory force if he is to develop properly. Fortunately for Michael Boyd, one of the persons in the crowded north Memphis apartment was his grandmother, Ora Boyd.
(Exhibit 16), Michael Boyd Juvenile records at 08,47 (demonstrating Boyd's mother born in 1947 and Boyd bom in 1960).
Id. at 03
3-19-99 Declaration of Mika'eel Abdullah Abdiis-Samad at ¶ 3 (Exhibit 17).
Sameroff, A., et al, "Intelligence Quotient Scores of 4-year-old children: Social-Environmental Risk Factors," Pediatrics, Mar. 1987; 79: 343-50.
Ora Boyd became his primary caretaker. Michael and Ora developed a positive, loving, relationship, and she provided the affectionate discipline necessary to counteract the risk factors that surrounded young Michael. In Ora Boyd's care, despite the chaos that surrounded him, Michael was a well-behaved boy who rarely caused any problems. At age nine, however, Michael's mother left Ora Boyd's house and took him to the Lemoyne Gardens housing project.
3-11-99 Declaration of Jo Marie Boyd at ¶ 4 (Exhibit 18).
Id. at ¶¶ 3-4. (Exhibit 18).
Id. ¶ 5, (Exhibit 18).
Id. at ¶ 6, (Exhibit 18); Michael Boyd Juvenile Records at 05, (Exhibit 16).
By separating Michael from the person with whom he had bonded as his primary caretaker, Michael's mother subjected him to one of the most traumatic experiences a child can suffer. By thereafter completely neglecting him in a violent, crime-filled housing project, she doomed him.
Garbarino, James, Kathleen Kosteln and Nancy Dubrow,Children in Danger: Coping with the Consequences of Community Violence. San Francisco: Jossey-Bass Inc., 1992.
Over 99% of the persons living in the zip code serving Lemoyne Gardens residents were African-American, and approximately 70% of households lived below the poverty line. Over one-third of households in the Lemoyne Gardens area were headed by a single female who had at least one child under eighteen. Over 25% of the residents did not complete the tenth grade, and 61% of persons over twenty-five years old did not have a high school education. Life in Lemoyne Gardens revolved around drugs and violence.
1990 Census Data at 1, (Exhibit 4).
See Mat p. 35.
See Id. at pp. 1. 11.
See Id. at p. 23.
See Id.
Older boys from neighboring areas came to Lemoyne Gardens to deal drugs and pick up girls. They flaunted their expensive cars and clothes, and they turned children in Lemoyne Gardens into "dope boys" who would transact drug sales. Michael's brother Mitch became a drug dealer, and he attained "big time" status. Soon Mitch also had expensive cars, clothes, and women, and Lemoyne Gardens became "turf over which drug dealers and other criminals fought. Gunfire and stabbings were a regular occurrence. Subjected to the risk factors that pervaded Lemoyne Gardens, and separated from the compensatory force that Ora Boyd had provided, Michael desperately required the attention of a strong stabilizing presence. What he received, however, was his mother's neglect.
3-13-99 Declaration of Idella Thomas at ¶ 5, (Exhibit 19).
Id.
3-21-99 Declaration of Anthony Boyce, ¶ 7, (Exhibit 20).
3-13-99 Declaration of Idella Thomas at ¶ 6, (Exhibit 19).
In times of stress, children have an increased need for intense contact with parents or parental figures. Michael's mother, however, exhibited no interest for him, and she did not care about how late he was out, where he was, or with whom me was associating. She was often absent from home and as a result, Michael and his brother Mitch were left to raise themselves. She failed to discipline him or attempt any intervention when Michael began acting out. At one point, she did not even open the door when a policeman who had Michael in custody for stealing a bicycle wanted to speak with her. Given his mother's neglect and his separation from Ora Boyd, the older boys, including his brother Mitch, had influence over Michael and they exercised that influence in ways that were not positive. Michael began presenting a behavior problem. He stopped going to school and was eventually expelled due to his total lack of attendance. Not surprisingly, a counselor attributed his escalating delinquency problem to a lack of supervision and moral support in the home.
Garbarino, James, Kathleen Kosteln and Nancy Dubrow.Children in Danger: Coping with the Consequences of Community Violence. San Francisco: Jossey-Bass Inc., 1992.
Michael Boyd Juvenile records at 08. (Exhibit 16).
Id. at ¶ 38.
3-21-99 Declaration of Anthony Boyce at ¶ 6, (Exhibit 20).
Michael Boyd Juvenile Records at 29, (Exhibit 16).
Id. at 54 .
3-21-99 Declaration of Anthony Boyce, at ¶ 6, 9 (Exhibit 20); Michael Boyd Juveniie Records, at 06 (Exhibit 16).
Michael Boyd Juvenile Records, at 54 Exhibit 16).
Id. at 64.
Id. at 38.
Michael's delinquent behavior landed him in juvenile detention facilities where, like Lemoyne Gardens, violence was a regular occurrence. Staff beat him in the head with sticks, beat him with a paddle, beat him with fists, withheld food from him, placed him in solitary confinement for long periods of time, and subjected him to other forms of torture, such as handcuffing him to an overhead steam pipe in such a way that his toes barely touched the ground. Developmental psychologists recognize that children subjected to such conditions become increasingly aggressive and, as a result, they are at risk for antisocial acts. Consistent with these observations, when Michael returned home from training schools, he was more aggressive than before.
3-19-99 Declaration of Mika'eel Abdullah Abdus-Samad at ¶ 4-7 (Exhibit 17).
Kolko, David J., "Child Physical Abuse," The APSAC Handbook on Child Maltreatment, 2nd ed. Ed. John E.B. Myers, et al. Thousand Oaks: Sage, 2001. 30-31.
3-21-99 Declaration of Anthony Boyce, ¶ 12 (Exhibit 20).
As the above demonstrates, trial counsel had available information to explain why, at age nine, Michael started turning from the well-behaved boy he was in his grandmother's care to the delinquent he became due to his mother's neglect and physical abuse by juvenile facility staff. This mitigation evidence was never presented to the jury.
Michael Boyd Juvenile Records, at 54 (Exhibit 161.6. Michael Boyd's post conviction counsel did nothing, presented no evidence, and thus foreclosed any judicial review of claims of ineffective counsel at sentencing.
The post-conviction procedures act applicable to Michael Boyd's case provided that a convicted prisoner initiate a post-conviction proceeding by filing with the clerk of court a written petition. If the petition was filed pro se, the court was required to appoint "competent" counsel and give counsel time to file an amended petition after researching and investigating the petitioner's potential claims.
T.C.A. §§ 40-30-121, 40-30-107,40-14-202(a) (Michie) (repealed).
On April 1, 1991, Michael Boyd filed, pro se, a post-conviction petition and a request that the Shelby County Criminal Court stay his April 5, 1991, execution. These documents were cut and paste photocopies of portions of other death row inmates' petitions and stay requests, held together by paperclips. The allegations in the pro se petition were generic, some not even remotely applicable to Boyd's case. Boyd filed that petition merely to initiate the post-conviction process, and he specifically requested that counsel be appointed to investigate his case and prepare an appropriate amended petition.
Post Conviction Technical Record, pp. 34-45 (Exhibit 21).
See Id. at 42, 44, (Exhibit 21).
See e.g. Id. at 37 ¶ 15 (prior counsel failed to raise an ineffective assistance of counsel claim in prior post-conviction proceedings); 40, ¶ 19p (trial court improperly admitted statements Boyd gave during a psychological examination) (Exhibit 20).
Id. at 42, ¶ 3, 4, (Exhibit 21).
Over two years after Boyd filed his pro se petition, the Criminal Court appointed Mr. Dan Seward to represent him. At this time, Seward had no capital post-conviction experience. Boyd provided Seward with the names of numerous witnesses to interview who would provide evidence that trial counsel's failure to present mitigating evidence at sentencing prejudiced him.
Post Conviction Technical Record, pp. 52, 53, (Exhibit 21).
4-21-94 pro se Motion for a new trial, at ¶ 3, (Exhibit 22).
Boyd's pro se motion, p. 2 at ¶ 8, (Exhibit 22).
On January 21, 1994, the court held an evidentiary hearing. Seward initially requested a continuance but the trial court promptly denied that request. Seward then announced "I'm ready to proceed." The hearing that followed was a legal mockery. Seward called Boyd to the stand, handed Boyd his paper clipped pro se petition (which Seward never amended) and asked him to explain what he meant by each of the allegations, then rested.
Post Conviction Transcript, pp. 3-6, (Exhibit 23).
Id. at 17, (Exhibit 23).
Specifically, Seward called his first and only witness, Michael Boyd, and questioned him as follows:
Q: Okay. You've since filed — since you've exhausted your state remedy, you've filed a pro se petition for post-conviction relief; is that correct?
A: Right.
Q: Okay. Do you have a copy of that petition in front of you, have you not? I provided you a copy of your own petition?
A: Yeah.
Q: Okay. In order to expedite matters I'm going to go down the list of your allegations. Are you ready, on page 2? You allege Subsection A. "Counsel failed to investigate the background and personal and medical history of petitioner for the existence of mitigating evidence and/or to present such evidence during the penalty phase of the trial." I'm going to ask you what you mean by that statement to the court.
Post Conviction Transcript, pp. 35, (Exhibit 23).
Given that Michael Boyd had an I.Q. that placed him in the borderline mentally retarded range, that he had only a ninth grade education, that Boyd had no access to the transcript of his trial, and that Boyd had been incarcerated since his arrest, Boyd's answer was understandably obtuse.
Standardized Test Record (Exhibit 24): Information from the ARC Web Site at 03, (Exhibit 25).
Michael Boyd Juvenile Records, at 64, (Exhibit 16).
See 4-21-94 pro se motion, p. 2 at ¶ 5. (Exhibit 22).
A: Well, you know, it's a, you know, before my trial started, you know, I was asking that the trial, you know, I was asking that the trial, you know, that it be investigated, my background, and, you know, so I could have mitigating witnesses come in and testify in the event that I was found guilty in trial, in my first phase of the trial, you know, for the mitigating circumstances, you know, to be presented. But due to the fact that no one went out ad talked to nobody, you know, it didn't happen.
Post Conviction Transcript, pp. 35-36, (Exhibit 23).
As Seward continued this line of questioning, and as Boyd valiantly attempted to explain concepts such as voir dire, Boyd realized that his opportunity to obtain post-conviction relief had turned into a pathetic mockery that he was powerless to stop. His answers to counsel's questions asking, "What does this mean?" devolved to "Just want it says." As Michael Boyd's testimony came to a close, he lamented:
Post Conviction Transcript, p. 50 and 51, (Exhibit 23).
Well you know, we're not properly ready. You see we ain't ready. Just go on. You know, it don't make no difference, you know. It ain't no big deal. Evidentially it is not, you know, he ain't even ready. He can't be ready.
Post Conviction Transcript, p. 84, (Exhibit 23).
After the State cross-examined Boyd, Seward rested. Seward's case thus was comprised solely of asking a borderline mentally retarded man who had a ninth-grade education and no access to his trial transcript to explain legal concepts. Seward did not bother seeking compensation for this effort.
Post Conviction Transcript, p. 105, (Exhibit 23).
3-16-99 Declaration of Libby Sykes at ¶ 4, (Exhibit 26).
After the trial court issued its opinion which, not surprisingly, held that Boyd waived numerous issues by failing to put on any proof, Boyd requested, pro se, a new hearing. Boyd informed the trial court that Seward did not follow his instructions, lied to him, and failed to prepare for the evidentiary hearing. The cleric did not file Boyd's request until two and one half years after he served it.
Post Conviction Technical Record at p. 123, (Exhibit 21).
4-21-94 pro se Motion for a new trial. (Exhibit 22).
Id.
On appeal, the Court of Criminal Appeals affirmed that Seward waived various claims by failing to cite any legal authority to support them. After that court issued its opinion, Michael Boyd informed the court of his problems with Seward and futilely requested that the court remove Seward from his case and remand that case to the trial court for a new hearing with different, competent, counsel. 7. Because of the mockery of post conviction proceedings, no court has reviewed on the merits trial counsel's failure to make a case for life.
Boydv. State, 1996 WL 75351 at *2 (Tenn.Crim.App. 1996), (Exhibit27).
See 7-26-96 Affidavit of Michael Boyd, at ¶ 4, (Exhibit 28).
In order to prove ineffective assistance of counsel, Seward should have presented proof at post conviction demonstrating (1) trial counsel's deficient performance; and (2) prejudice. Though it is somewhat evident that failure to subpoena and present mitigation witnesses in the penalty phase of a capital trial constitutes deficient performance, Seward should have presented evidence at post conviction as to what that mitigation case would be. At the very least, he should have presented the testimony of Anthony Boyce and Jean Withers to show what mitigation proof trial counsel planned to, but failed to present. Because of counsel's failure to present any mitigation evidence, there was no evidence of prejudice in the record, and both the state court and federal courts held this claim procedurally defaulted due to the inaction of post conviction counsel.
See Strickland v. Washington, 466 U.S. 668 (1984).
See Affidavit of Anthony Boyce Canada who was willing to testify (Exhibit 15).
8. Trial counsel's failure to present mitigating evidence prevented this court from conducting proper harmless error analysis due to Middlebrooks error
At sentencing, the jury found two aggravating circumstances to be present: (1) a prior felony conviction for second degree murder, and (2) the murder occurred during the perpetration of a robbery. With the help of capital case resource attorneys, Boyd argued to this court that the jury's consideration of the felony murder circumstance violated State v. Middlebrooks, 840 S.W. 2d 317 (Term. 1992), since Middlebrooks held that if a defendant is convicted of felony murder, and not premeditated murder, then the jury is not allowed to consider the fact that the killing occurred in perpetration of a felony as an aggravating circumstance.
Thus, with half the case for death declared invalid, the Tennessee Supreme Court had to consider whether the error was harmless. In considering whether the error was harmless, the court considered "the nature, quality and strength of the mitigating evidence." Not surprisingly, since trial counsel made no case for life, there was scant mitigation in the record for the court to consider — leading to a finding that the Middlebrooks error was harmless.
State v. Boyd, 959 SW 2d at 560 (Exhibit 11).
Thus, again the failure of trial counsel to put into the record evidence of mitigation, precluded Boyd from obtaining sentencing relief.
9. Codefendant Terry Yarber was acquitted in a trial by a separate jury.
Terry Yarber, who was jointly indicted for the robbery of David Hippen, was severed and tried by a separate jury. With the help of privately retained counsel Joe Brown, Yarber was acquitted. This is true even though the same witnesses who testified in Boyd's case also testified against Yarber.
See State v. Yarber, Record of Acquittal (Exhibit 9)
10. Because no court has reviewed the case for life on the merits, extenuating circumstances warrant issuing a certificate of commutation.
Temiessee law provides that the Governor may commute a death sentence to life imprisonment upon the certificate of the Supreme Court, if "there were extenuating circumstances attending the case, and that the punishment ought to be commuted." T.C.A. § 40-27-106. When considering the recommendation, the court should consider only facts contained in the record or facts which are uncontraverted. Workman v. State, 22 S.W. 3d 807, 808 (Tenn. 2000).
Extenuating circumstances are not defined, but must certainly include cases, such as this, where due to inaction by appointed counsel, no court has reviewed on the merits Michael Boyd's claim of failure to present mitigating evidence at sentencing. Such a claim, should have been presented to the courts in a post conviction proceeding. The post conviction counsel should present evidence of trial counsel's deficient performance, and then demonstrate prejudice by putting in the record mitigation evidence that the trial counsel should have presented. See Strickland v. Washington, 466 U.S. 668 (1984), But in this case, the appointed post conviction counsel engaged in the worst excuse of advocacy imaginable. He did nothing, and because of his failures, both the state and federal courts held claims due to ineffective counsel at the penalty phase to be procedurally defaulted.
The ineffective counsel also resulted in a skewing of this courts harmless error analysis when it ruled one of the two aggravating circumstances to have been erroneously considered. See State v. Boyd, 959 S.W. 2d 557 (Tenn. 1998). Because trial counsel and post conviction counsel had presented little mitigating evidence in the record, the reweighing by this court of the sole aggravating circumstance against mitigating evidence was skewed. This calls into question the harmless error analysis previously conducted.
Extenuating circumstances are certainly present, when under the law a claim may not be reviewed due to inaction of court appointed counsel, but in the interests of justice a compelling argument for life is present. Michael Boyd's case is not one with the type of heinous facts that merit the death penalty. The jury did not find he ever intended to kill William Price. The prosecutor who tried Michael Boyd believed 35 years to be a just sentence. The co-defendant who was represented by competent counsel was acquitted. All of these factors are in the record, or are uncontroverted. If ever there were extenuating circumstances warranting issuance of a certificate of commutation, they are present in this case.
CONCLUSION
Mika'eel Abdullah Abdus-Samad prays this court recommend commutation to the Governor.
Respectfully submitted,
Robert L. Hutton, #15496
GLANKLER BROWN, PLLC
1700 One Commerce Square
Memphis, Tennessee 38103
(901)525-1322
DESIGNATION OF ATTORNEY OF RECORD
Mika'eei Abdullah Abdus-Samad (f/lc/a Michael Boyd) designates Robert L. Hutton as attorney of record:
Robert L. Hutton, #15496
GLANKLER BROWN, PLLC
1700 One Commerce Square
Memphis, Tennessee 38103
(901)576-1714
(901) 525-2389 (fax)
rhutton@glankler. com
Counsel prefers to be contacted by e-mail.
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Response in Opposition to Motion to Set Execution Date and Request for a Certificate of Commutation has been sent via U.S. Mail to:
Jennifer Smith
Assistant Attorney General
425 5th Avenue North
Nashville, Tennessee 37243
this 11th day of May, 2007.
Exhibit 1
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