This edition covers the period from August 20, 2007 to August 27, 2007.

One notable capital case is had for that period, the Eighth Circuit's decision inTerrick Nooner v. Norris. Nooner may be incompetent, but has previously litigated a federal habeas petition. The Attorney General sought to bar the claim as a "second or successive" application. At the time Nooner filed his habeas relief no active death warrant existed for him. The Arkansas Attorney General, thereafter, sought and obtained a death warrant. Holding that the "statutory bar on second or successive applications does not apply to Ford-based incompetency claims [ ] after the state has obtained an execution warrant" and the competency became ripe as soon as an execution date was set, the Nooner panel remands for further factual development. The panel refused, however, to issue a stay. TheNooner briefsare available on PACER & the oral arguments areavailable here.

The news of the week is the commutation of Kenneth Foster. The Texas Board of Pardon and Paroles voted 6-1 to recommend commutation. The governor signed the commutation papers Thursday morning. As he commuted Foster's sentence to life Gov. Perry interestingly noted he was worried that Texas's system of death was too broad, at least when it comes that state's "law of the party" doctrine. Although the "post-game"debriefing over thelessons from the Kenneth Foster commutationwill continue for some time, when the Governor's comments are taken in conjunction with an uptick in grants of relief in state and federal court this year and decrease in new death sentences, it may be, despite the increase in the total number of executions this year, that we have entered a new era of the Texas death penalty.

Elsewhere in the National Law Journal’s website is running an article entitled“ABA Calls AG’s Fast-Track Authority Seriously Flawed.”Chris Adams has purportedly quitas head of the Georgia Capital Defenders to protest the lack of money to fund an adequate defense for poor people in Georgia accused of capital crimes.Three North Carolina men who had been facing the death penalty were spared in recent days in unrelated cases:Samuel Mayfield(Gaston County), Kelvin Smith (Hoke County), andAndrew Carty(Wake County).The Christian Science Monitoris looking at postconviction counsel & the proposed opt-in regulations. Former Ninth Circuit Judge Arthur L. Alarcon this past week looked at why the California death penalty is failing inthe LA Times. Finally,Dan Rather Reportsexamines the cases of Ruben Cantu and Carlos De Luna, September 4 at 8:00 p.m. ET on HDTV.

Looking ahead to the next edition, several notable cases are had. The Oklahoma Court of Criminal Appeals grants relief inRicky Ray Malone v. Stateas the prosecutor "blatantly" violated the boundaries placed on penalty phase closing arguments by suggesting "that Malone’s jurors should sentence him to death because the family member victims were counting on them to do so," "by invoking the powerlessness, the indignities, and the depersonalization that the American system of trial by jury imposes upon all crime victims and their surviving families," and the infamous “three hots and a cot” argument that seems to have found popularity of late in Oklahoma. The California Supreme Court has granted relief inPeople v. Arthur Hans Halvorsenon self-representation / Faretta related claims. The Mississippi Supreme Court inRoger Eric Thorson v. Stateremands for further analysis of claims of mental retardation. Finally, in two separate Alabama cases, Bobby Wayne Waldrop v. State & Dionne Eatmon v. State, the Alabama Court of Criminal Appeals has affirmed two jury overrides to death where the jury recommended life overwhelmingly (10-2 & 9-3, respectively).

As always thanks for reading. - k

Commuted

August

30 Kenneth Foster (Texas)

Executions

August

28 Daroyce Mosley (Texas)

29 John Amador (Texas)

Pending Executions

September

5 Tony Roach (Texas)

11 Edward Harbison (Tenn.) ( stay litigation materials)

12 Daryl Holton (Tenn. - vol) ( stay litigation materials)

13 Joseph Lave (Texas)

18 Terrick Nooner (Arkansas)

20 Clifford Kimmel (Texas)

25 Michael Richards (Texas)

25 Ralph Baze (Kentucky)

27 Carlton Turner (Texas)

27 Tommy Arthur (Alabama)

More Execution information*

Week of August 20, 2007 -- In Favor of Life or Liberty

• Terrick Nooner v. Norris, 2007 U.S. App. LEXIS 20186 (8th Cir 8/24/2007) Remand ordered on Ford-related claims as: (1) competency became ripe as soon as an execution date was set, and (2) "statutory bar on second or successive applications does not apply to Ford-based incompetency claims [ ] after the state has obtained an execution warrant."(Briefs are on PACER/oral argument)

Week of August 20, 2007-- In Favor of Death

• Luther Williams v. Allen, 2007 U..S. App. LEXIS 19836 (11th Cir 8/21/2007) "We conclude that the district court did not abuse its discretion in dismissing Williams’s § 1983 action due to his unnecessary delay, especially given the strong presumption against the grant of equitable relief."
• People v. Ignacio Tafoya, 2007 Cal. LEXIS 8907 (Cal 8/20/2007) Relief denied on claims including: "1) denial of severance motions; 2) evidence regarding a prosecution witness; 3) denial of a request for telephone privileges; 4) voir dire procedures; 5) the trial court's comments about hardship exclusions from jury duty; 6) the sufficiency of the evidence; 7) the exclusion of a statement made by a victim to a witness; 8) a decision allowing the prosecution to reopen its cross-examination of defendant; 9) prosecutorial misconduct; 10) jury instructions; 11) evidence of unadjudicated criminal activity; 12) denial of a motion for new trial based on alleged jury misconduct; 13) denial of an automatic application for modification of the death judgment; 14) miscellaneous constitutional issues; 15) the proportionality of the sentence; 16) a challenge under international law; 17) the method of execution; and 18) cumulative error." [via Findlaw]
• State v. Paul Cummings, 2007 N.C. LEXIS 815 (N.C. 8/24/2007) Relief denied on numerous claims including: (A) denial challenges to certain jurors; (B) trial court's sustaining prosecution objections to certain questions asked by defense counsel duringvoir direincluding whether their decisions would be influenced by their ideas about the costs of life imprisonment versus the costs of a death sentence; (C) trial court's refusal to allow the defense to present to the jury during penalty proceeding closing argument an exhibit containing the statement that life imprisonment is the presumptive sentence for first-degree murder “unless and until the prosecution proves otherwise;" (D) "trial court erred in failing to intervene during the prosecution's penalty proceeding closing argument when the prosecutor began to discuss how defendant's crime was committed 'for money'; ” (E) "trial court erred in failing to interveneex mero motuin the prosecution's closing argument when the prosecution read a certain letter from the victim's son;" (F) "trial court erred in failing to interveneex mero motuwhen the prosecutor stated: 'They want to talk about compassion, mercy. That's not the law. That's not the standard. If it was, you wouldn't forget about the compassion and mercy that he showed for her. No, don't base it on any of that';" (G) "the trial court erred in instructing the jury pursuant to N.C.G.S. § 15A-2000(f)(1) as the evidence was insufficient to support a jury finding that defendant's prior criminal history was insignificant;" (H) "the prosecution's decision to proceed capitally was influenced by improper considerations of race and political aspiration;" and (I) proportionality. [brief hereother recentN.C. briefs here]
• Leif Halvorsen v. Comm., 2007 Ky. LEXIS 177 (Ky 8/23/2007) Relief denied on numerous claims "within a broad assertion that the 'jury never learned who he was, and never heard his story'. The principal focus of this contention revolves around trial counsel's alleged failure to consult with Appellant, which resulted in a failure to investigate and present evidence that would have supported the defenses of intoxication, duress, and extreme emotional disturbance (EED) ." (briefs to beavailable here)
• Marco Chapman v. Comm., 2007 Ky. LEXIS 178 (Ky 8/23/2007) The defendant negotiated with the Commonwealth to plead guilty and be sentenced to death. Although appointed counsel raises numerous issues those are in the main unpreserved and without merit. "The case before us is the review of Chapman's conviction and sentence in which we are asked to resolve several questions concerning the death penalty in Kentucky. The ultimate question is whether a defendant may enter into a plea agreement to forgo a jury trial and sentencing and volunteer for the death penalty." (briefsavailable here)
• Jimmy Harris v. State, 2007 Okla. Crim. App. LEXIS 32 (Okla. Crim. App. 8/20/2007) Relief denied on numerous claims of trial and appellate counsel ineffectiveness. Appellate counsel "failed to raise several meritorious claims" including "prosecutorial misconduct occurred in the first stage of Harris’s trial" including denigration of counsel" and attempting to "incite societal alarm by referring to the missing murder weapon;" shackling related issues, instructions on affirmative defenses, improper use of victim evidence, failing to challenge state death penalty scheme, failing to raise validity of continuing threat, failing to challenge lack of jury determination of mental retardation claim, failing to adequate investigate juror misconduct related claims, and various evidentiary rulings.Trial counsel were ineffective: failing to adequately investigate guilt and penalty phase claims, including mitigation evidence.
• Comm. v. Bernard Cousar, 2007 Pa. LEXIS 1697 (Pa 8/21/2007) Relief denied on claims including: (A) sufficiency of the evidence; (B) weight of the evidence; (C) the trial court abused its discretion in allowing the Commonwealth to try the charges jointly; (D) limitation on defense witness's testimony; (E) trial court should not have allowed the Commonwealth to introduce evidence of his tattoo with the letters “M.O.B.;” (F) prosecutorial bolstering of key witness, (G) prosecution testifying in penalty phase closing to facts not in evidence; (H) flight charge; and (I) statutory review.

Notable

• State v. Gary Benn, 2007 Wash. LEXIS 573 (Wash 8/23/2007) "[A] jury's failure to find an aggravating factor during the penalty phase of a capital trial does not constitute an acquittal of that aggravating factor implicating double jeopardy."
• Richard Phillips v. Ornoski, 2007 U.S. App. LEXIS 19825 (9th Cir 8/21/2007) Extension of time to respond on appeal in this capital habeas appeal granted with clear implications for the pending opt-in regulations.

(Advance Sheet Week of August 27, 2007) -- In Favor of Life or Liberty

• People v. Arthur Hans Halvorsen,2007 Cal. LEXIS 9352 (Cal 8/30/2007) Relief granted under Faretta / the right to self representation.
• Ricky Ray Malone v. State, 2007 OK CR 34 (Okla Crim App 8/31/2007) "It was improper for the prosecutor to so blatantly suggest that Malone’s jurors should sentence him to death because the family member victims were counting on them to do so. It was improper to so directly and profusely appeal to sympathy for the family member victims. And it was highly improper to seek this sympathy based not only upon the loss of Green, but also by invoking the powerlessness, the indignities, and the depersonalization that the American system of trial by jury imposes upon all crime victims and their surviving families. It was likewise improper to imply that Malone’s family members should be compensated for their fifteen-month endurance of this painful process by a death penalty verdict from the jury, and that “[a]nything less would be a travesty.” And the prosecutor’s comparison of Malone’s situation (of limited but continuing “human contact”) with that of his dead victim (who “will never know human contact again”) is yet another version of the infamous, but ever-popular, “three hots and a cot” argument that this Court has so strenuously, but unsuccessfully, sought to eliminate from the Oklahoma prosecutorial repertoire of favorite, death-seeking, closing argument incantations."
• Roger Eric Thorson v. State, 2007 Miss. LEXIS 497 (Miss 8/30/2007) Remand ordered in light of Atkins for an "evidentiary hearing pursuant to Atkins, [State v.] Lynch and [State v.] Chase."
• Nathaniel Woods v. State, 2007 Ala. Crim. App. LEXIS 137 (Ala Crim App 8/31/2007) Remand ordered as "the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, we must remand this case to the trial court for it to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances. If it finds it necessary, the trial court may reweigh the aggravating and mitigating circumstances and resentence Woods."

(Advance Sheet Week ofAugust 27, 2007) -- In Favor of Death

• Billy Leon Kearse v. State, 2007 Fla. LEXIS 1534 (FL 8/30/2007) Relief denied on postconviction appeal: "(A) that trial counsel provided constitutionally ineffective assistance, (B) that the circuit court erred in denying Kearse's claim of newly discovered evidence warranting a new penalty phase, (C) that the trial court erred in denying Kearse's public records requests, and (D) that the trial court erred in summarily denying several of his postconviction claims. We address each in turn below." On habeas: "(A) that appellate counsel was ineffective for failing to raise two meritorious claims, and (B) that both his death sentence and lethal injection are unconstitutional."
• Stephen Todd Booker v. State, 2007 Fla. LEXIS 1533 (FL 8/30/2007) Relief denied on claims relating to (1) interference with Booker's legal mail; (2) use of the prior violent felony aggravator; (3) failure to investigate and present mitigation evidence; (4) failure to inform jury of the amount of time Booker was facing if sentenced to a sentence other than death; (5) Crawford; (6) new evidence; & (7) length of incarceration on death row. Booker has been incarcerated for 30 years for a crime committed in 1977, most of it on death row. "[M]embers of the victim's family [have] urged that Booker be sentenced to life in prison."
• State v. Paul Cummings, 2007 N.C. LEXIS 815 (NC 8/24/2007) "An inmate's post-conviction relief petition, under R.C. 2953.21, alleging counsel inadequately investigated the mitigation evidence related to a murder the inmate was convicted of, was properly denied because counsel was not ineffective when an expert retained by counsel did not share with counsel the expert's mitigating opinions as to this murder." [from Lexisone] [briefs]
• Bobby Wayne Waldrop v. State, 2007 Ala. Crim. App. LEXIS 150 (Ala Crim. App. 8/31/2007) Trial court handed down a death sentence despite a 10-2 recommendation for life. Postconviction relief denied on numerous claims, arising chiefly around ineffective assistance of counsel on failure to investigate mitigation and other evidence, as well as the trial court failing to consider traditional social history mitigation evidence.
• Dionne Eatmon v. State, 2007 Ala. Crim. App. LEXIS 126 (Ala Crim App 8/31/2007) The jury voted 9-3 for life, the trial judge decide Eatmon should die. Relief denied on request for continuance as the defense's mitigation expert, who was hired just a few weeks prior to trial, needed more time, as well as claims relating to the jury override, state capital sentencing scheme, and independent review.
• William Bruce Marshall v. State, 2007 Ala. Crim. App. LEXIS 138 (Ala Crim App 8/31/2007) Relief denied on claims relating to: (1) introduction of confession and other evidence obtained as a result of what he alleges was an illegal arrest; (2) failure to grant his motion for a judgment of acquittal on the charges of capital murder; (3) sufficiency of the evidence; (4) trial court erred in allowing the State to offer evidence of a collateral bad act; (5) trial court erred in granting the State's motion in limine seeking to preclude evidence as to alternate causes of decedent's vaginal injuries; and (6) independent & statutory review
• State v. Larry James Gapen, 2007 Ohio 4333 (Ohio 2nd App 8/24/2007) "An inmate's post-conviction relief petition, under R.C. 2953.21, alleging counsel inadequately investigated the mitigation evidence related to a murder the inmate was convicted of, was properly denied because counsel was not ineffective when an expert retained by counsel did not share with counsel the expert's mitigating opinions as to this murder." [from Lexisone]

Selected Excerpts from, & Commentary on, this Edition's Cases

[Note formatting may be off below this point.]

Terrick Nooner v. Norris, 2007 U.S. App. LEXIS 20186 (8th Cir 8/24/2007) Remand ordered on Ford-related claims as: (1) competency became ripe as soon as an execution date was set, and (2) "statutory bar on second or successive applications does not apply to Ford-based incompetency claims [ ] after the state has obtained an execution warrant." From that opinion:

Because the second certified question concerns our jurisdiction, we consider it first. E.g., Panetti v. Quarterman, 551 U.S. __, 127 S. Ct. 2842, 2852 (2007); see also Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970) (noting “a court always has jurisdiction to determine its own jurisdiction”). We review de novo the district court’s conclusion Nooner’s instant application was a second or successive habeas application. See Williams v. Norris, 461 F.3d 999, 1001 (8th Cir. 2006), petition for cert. filed, __ U.S.L.W. __ (U.S. May 10, 2007) (No. 06-11260). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, limits the availability of habeas relief. See 28 U.S.C. § 2244(b);1 Fry v. Pliler, 551 U.S. ___, 127 S. Ct. 2321, 2327 (2007). Before filing a second or successive application, the applicant must “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

Nooner does not rely on the exceptions set forth in § 2244(b)(2). Nooner instead relies on the Supreme Court’s decisions in Stewart v. Martinez-Villareal, 523 U.S. 637, 643 (1998), and Panetti, 127 S. Ct. at 2853. Nooner argues the instant application is not a second or successive application because it does not challenge his conviction and sentence, but rather the application challenges Norris’s denial of access to mental health experts in Nooner’s effort to develop a claim under Atkins v. Virginia, 536 U.S. 304, 321 (2002) (concluding the Eighth Amendment “places a substantive restriction on the State’s power to take the life of a mentally retarded offender,” (internal quotation marks omitted)) and Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (holding “the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane”)

In Martinez-Villareal, an applicant filed a habeas application alleging, among other things, a Ford-based incompetency claim. Martinez-Villareal, 523 U.S. at 640. The district court dismissed the Ford-based incompetency claim without prejudice, because the state had not yet obtained a warrant for the applicant’s execution and the application was premature. Id. at 640, 643. After the state obtained an execution warrant, the applicant sought permission from the court of appeals to file a second or successive application alleging the Ford claim. Id. at 640-41. The Supreme Court held the applicant “was not required to get authorization to file a ‘second or successive’ application before his Ford claim could be heard” because “[t]here was only one application for habeas relief.” Id. at 643-44. The Court concluded the applicant was entitled to a hearing on the merits of his Ford-based incompetency claim, because the state issued a warrant for the applicant’s execution and the applicant’s claim was “then unquestionably ripe.” Id. at 643, 646.

In Panetti, the Supreme Court extended the holding of Martinez-Villareal. Panetti, 127 S. Ct. at 2853. The applicant filed an initial habeas application, however, the application did not include a Ford-based incompetency claim. Id. at 2849. After the state trial court set an execution date, the applicant filed another habeas application containing a Ford claim. Id. The Supreme Court noted it “has declined to interpret ‘second or successive’ as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior § 2254 application.” Id. at 2853. The Court observed “Congress did not intend the provisions of AEDPA addressing ‘second or successive’ [applications] to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id. In conclusion, the Court stated “[t]he statutory bar on ‘second or successive’ applications does not apply to a Ford claim brought in an application filed when the claim is first ripe.” Id. at 2855. After discussing the merits, the Court reversed the denial of habeas relief. Id. at 2863.

In both Martinez-Villareal and Panetti, the Supreme Court held the statutory bar on second or successive applications does not apply to Ford-based incompetency claims filed after the state has obtained an execution warrant. Panetti, 127 S. Ct. at 2849, 2853; Martinez-Villareal, 523 U.S. at 640, 643-44. For the limited purpose of the statutory bar on second or successive applications found in § 2244(b)(2), we cannot think of any statutory reason why this holding cannot be extended to Ford based incompetency and Atkins-based mental retardation claims filed before the state has obtained an execution warrant.

Moreover, in both Martinez-Villareal and Panetti, the Supreme Court indicated the setting of an execution date caused the applicants’ Ford-based incompetency claims to become ripe. Panetti, 127 S. Ct. at 2852; Martinez-Villareal, 523 U.S. at 643. Here, Nooner filed the habeas application before the State of Arkansas had obtained an execution warrant. That Nooner filed the habeas application before the

setting of an execution date is irrelevant to the ripeness of Nooner’s habeas application because “it is the situation now rather than the situation at the time of the [d]istrict [c]ourt’s decision that must govern.” Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974); see also Pub. Water Supply Dist. No. 8 of Clay County, Mo. v. City of Kearney, Mo., 401 F.3d 930, 932 (8th Cir. 2005).