Willie H. Nowell v. Statefrom the Florida Supreme Court leads off this edition. TheNowellCourt grants a new trial as the trial court erred in allowing the State‘s peremptory strike against a member of a minority group; the prosecutor's claim that he struck a juror out of a general "dislike" of the "type" of juror he that the venireperson would be was inappropriate. Additionally, the trial court erred in denying appellant‘s objections and motions for mistrial made during the State‘s penalty phase closing argument:

"Mercy. State asks that you recommend mercy if mercy is warranted. And mercy wasn't given in this case, not by Mr. Nowell, not by Mr. Bellamy. There was no mercy there, none whatsoever."

Two noncapital habeas case of note are also had. The Sixth Circuit inMichael W. Brown v. Smithholds that where "substantial evidence supporting a habeas claim comes to light during the proceedings in federal district court" AEDPA does not apply. Specifically, Brown's trial attorneys’ in this sexual abuse case failed "to investigate and obtain records related to his daughter’s counseling sessions." "[T]he absence of the counseling records before the Michigan Court of Appeals (through no fault of Brown's), combined with that court's explicit statement that its review was 'limited to mistakes apparent on the record,' means that there is no relevant state court adjudication to which this court can defer." The Sixth Circuit has previously held AEDPA does not apply in the context of certain Brady claims "uncovered" during federal habeas.

In the final case of note,Cecilio Gonzalez v. Duncan, the Ninth Circuit holds that a 28 year to life sentence for failure to register violates the Eight Amendment. Rather than stealing his thunder, Steven Kalar, a federal defender in California's Northern District, at theNinth Circuit blogdoes a fantastic job digesting the case and how to litigate related issues of noncapital proportionality.

In the news, DPIC notesnumber of police officers killedby gunfire in 2008 dropped by 40% from 2007, down to its lowest level in more than 50 years, according to a report by the National Law Enforcement Officers Memorial Fund. In an editorial theDallas Morning Newsnamed the Dallas County District Attorney its Texan of the Year.

For the next few weeks (ok months) I will be in trial and the weekly email edition is likely to be light. My apologies in advance. As always thanks for reading. - k

Pending Executions

January

14 Curtis Moore - Tex*

15 Jose Briseno - Tex*

15 James Callahan - Ala*

21 Frank Moore - Tex*

22 Reginald Perkins - Tex*

22 Darwin Brown - Okla*

27 Larry Swearingen - Tex*

28 Virgil Martinez - Tex*

29 Ricardo Ortiz - Tex

February

4 David Martinez - Tex*

4 Steve Henley - Tenn*

12 Johnnie Johnson - Tex*

12 Danny Joe Bradley - Ala*

19 Edward Bell - Va*

March

2 Bennie Adams - Ohio

2 Victor Miller - Oklahoma

3 Jeffrey Hill - Ohio*

3 Willie Pondexter - Tex*

10 James Edward Martinez - Tex*

11Luis Salazar - Tex*

19 Phillip Halford - Ala*

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin& press accounts]

(Initial List)Week ofDecember 29, 2008 – In Favor of the Defendant or the Condemned

• Willie H. Nowell v. State,2008 Fla. LEXIS 2437 (FL 12/30/2008) Relief granted on claims that the trial court erred in allowing the State‘s peremptory strike of Nelson Ortega, a member of a minority group, and that the trial court erred in denying appellant‘s objections and motions for mistrial made during the State‘s penalty phase closing argument.
• Donney S. Council v. State,2008 S.C. LEXIS 355 (S.C. 12/29/2008) On rehearing, minor modification to prior decision holding. "Given there is evidence to support the PCR judge's holding that Respondent's trial counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of Respondent's trial, we affirm the PCR judge's decision vacating Respondent's sentence and ordering a new sentencing hearing. We, however, find the PCR judge erred in continuing indefinitely one of the PCR grounds until Respondent regains competence. Because Respondent's assistance is not required for PCR counsel to present the issue regarding whether Respondent's trial counsel was ineffective in failing to adequately investigate Respondent's mental competence at the time the crimes were committed, we reverse the PCR judge's order on this issue and remand for the PCR judge to rule based on the evidentiary record presented at the PCR hearing in addition to any relevant evidence admitted at the hearing on remand."

(Initial List)Week of December 29, 2008 – In Favor of the State or Government

• Richard Tandy Smith v. Workman, 2008 U.S. App. LEXIS 26816 (10th Cir 12/30/2008) Relief denied on claims: "(1) whether the trial court's failure to provide a psychiatric expert violated Ake v. Oklahoma, 470 U.S. 68 (1985), and whether counsel provided ineffective assistance by failing to raise an Ake claim, (2) whether counsel provided ineffective assistance at the mitigation stage of trial, and (3) whether the State violated Mr. Smith's due process rights under Brady v. Maryland, 373 U.S. 83 (1963)."
• State v. Michael Andre Davis, 2008 Ore. LEXIS 1067 (Ore 12/31/2008) (dissent) Relief denied over: "(1) defendant's assertion that the trial court erred in denying defendant's motion to dismiss for preindictment delay; (2) defendant's assertion that the trial court erred in denying defense counsel's motions to withdraw; (3) defendant's assertion that the trial court erred in denying defendant's motion for a mistrial based on the prosecutor's reference in his opening statement to the testimony of a witness who failed to appear at trial; and (4) defendant's assertion that the trial court erred in refusing to admit evidence of the contents of a police report."
• Joseph E. Corcoran v. Buss, 2008 U.S. App. LEXIS 26824 (7th Cir 12/31/2008) District court's grant of habeas relief from claim that Mr. Corcoran's "Sixth Amendment right to a jury trial was violated by an offer made by the State during pretrial negotiations, which in turn tainted his death sentence" reversed. Panel affirms district court's decision, however, that "Corcoran was competent to waive his state post-conviction proceedings."

(Initial List)Week of December 29, 2008 – rule changes

• In re: Amendments to Florida Rule of Criminal Procedure3.851 and Florida Rule of Appellate Procedure 9.142, 2008 Fla. LEXIS 2436 (FL 12/30/2008) "The counterpart to rule 3.851, rule 3.850, provides for postconviction relief in noncapital cases and, under subdivision (g), authorizes seeking belated appeals from the denial of rule 3.850 motions. To reflect a comparable procedure to seek a belated appeal in capital cases, we amend rule 3.851 to include subdivision (j), providing that "[a] petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner's motion for postconviction relief and counsel, through neglect, failed to do so."

(Initial List)Week of December 29, 2008 – notable noncapital

• Michael W. Brown v. Smith, 2008 U.S. App. LEXIS 26829 (6th Cir 12/31/2008) "[T]rial attorneys’ failure to investigate and obtain records related to his daughter’s counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel." Where "substantial evidence supporting a habeas claim comes to light during the proceedings in federal district court" AEDPA does not apply. "We conclude that the absence of the counseling records before the Michigan Court of Appeals (through no fault of Brown's), combined with that court's explicit statement that its review was "limited to mistakes apparent on the record," means that there is no relevant state court adjudication to which this court can defer."
• Cecilio Gonzalez v. Duncan, No. 06-56523 (9th Cir 12/30/2008) 28 years to life for technical violation for failure to register as a sex offender violates the Eighth Amendment. TheNinth Circuit blogbeautifully digests Gonzalez.

Week ofDecember 22, 2008 – In Favor of the Defendant or the Condemned

• Jerry Michael Wickham v. State, 2008 Fla. LEXIS 2430 (FL 12/23/2008) Revised opinion. Remand ordered for an evidentiary hearing. "Wickham raised numerous ineffective assistance of counsel claims against his trial counsel, Philip Padovano. Judge Padovano ran for a circuit court judgeship while Wickham's case was still pending and became a judge on the Second Circuit shortly after Wickham's trial. He served as a circuit court judge for almost eight years and was Chief Judge of the Second Circuit from 1993 to 1996. Currently an appellate judge on the First District Court of Appeal, Judge Padovano hears appeals from numerous judicial circuits, including the Second Circuit. After Judge Padovano's appointment to the appellate bench, his wife also joined the Second Circuit as a judge. Under these extraordinary circumstances, it is reasonable for a defendant in Wickham's position to fear that a Second Circuit judge hearing Judge Padovano's testimony in determining Wickham's ineffective assistance of counsel claims would be biased in favor of Judge Padovano and against Wickham. Thus, Wickham's motion to disqualify was based on a well- grounded fear and should have been granted."

Week ofDecember 22, 2008 – Favored Neither Party

• United States v. Richard Stitt, 2008 U.S. App. LEXIS 26280 (4th Cir 12/24/2008) Government concedes error as trial counsel labored under a conflict of interest during the penalty phase of Mr. Stitt's trial. A remand, however, is ordered, as "the district court, after granting Stitt relief under 28 U.S.C.A. § 2255 as to the penalty phase of his trial and vacating his death sentence, erred by concluding that Stitt was no longer eligible for the death penalty because the statute under which Stitt's death sentence was imposed has since been repealed, see 21 U.S.C.A. § 848(g) (repealed 2006), and by sentencing Stitt to life imprisonment. We agree with the district court that Stitt is not entitled to relief as to his guilt-phase conflict of interest claim, but we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109 . Accordingly, we vacate Stitt's life sentence and remand the case for a new sentencing hearing."

Week of December 22, 2008 – In Favor of the State or Government

• Kenneth Mosley v. Quarterman,2008 U.S. App. LEXIS 26138 (5th Cir 12/23/2008)(unpublished) "Mosley seeks a COA on six issues: (1) whether trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence; (2) whether trial counsel rendered ineffective assistance by failing to object to purported victim impact evidence during the guilt phase of the proceedings; (3) whether trial counsel rendered ineffective assistance by failing to object to a witness's prior consistent statement; (4) whether trial counsel rendered ineffective assistance by failing to seek a limiting instruction when admitting the entirety of an expert's investigation to cross-examine the expert; (5) whether appellate counsel rendered ineffective assistance by failing to argue that the prosecution improperly impeached a defense witness; and (6) whether appellate counsel rendered ineffective assistance by failing to challenge the instruction that the jury received regarding Mosley's eligibility for parole."
• Dwight Loving v. DOD, 2008 U.S. App. LEXIS 25856 (D.C. Cir. 12/23/2008)"[A]ppellant filed suit under the Freedom of Information Act seeking disclosure of Department of Defense and Army memoranda prepared for the President in connection with his statutory review of appellant's death sentence. The district court found the requested documents exempt from disclosure under FOIA Exemption 5 and granted the government's motion for summary judgment. For the reasons set forth in this opinion, we affirm."
• Harry Jones v. State, 2008 Fla. LEXIS 2434 (FL 12/23/2008) Revised opinion. Relief denied on claims relating to: (A) Brady/Giglio violations; (B) failure to investigate and present mitigation information; (C) "summary denial of two claims of ineffective assistance of counsel: (1) failing to object to the use of shackles during voir dire; and (2) failing to object to improper prosecutorial argument;" (D) Ring; (E) jury instructions improperly shifted the penalty phase burden; and (F) undue dilution of jury's responsibility for a verdict.of death.
• Commonwealth v. William Wright III, 2008 Pa. LEXIS 2316 (PA 12/22/2008) [via LexisOne] "Evidence sufficiently supported defendant's first-degree murder conviction pursuant to 18 Pa.C.S. § 2502(a) and death sentence; it showed defendant, jealous because wife he had impregnated had reconciled with husband, broke into their house heavily-armed, repeatedly shot husband, and fled, and that such conduct was captured on 911 call to police."
• Luke Williams III v. Ozmint, 2008 S.C. LEXIS 347 (SC 12/22/2008) "Petitioner argues that he is entitled to habeas relief because the solicitor improperly stated that he "expected" the death penalty during his sentencing argument. We disagree."
• State v. Roland T Davis, 2008 Ohio 6841(Ohio 5th App 12/23/2008) Relief denied on claims relating to whether: “the trial court dismissed his post-conviction petition on procedural grounds;” “the trial court denied motions that were necessary to fully and fairly litigate his grounds for post-conviction relief;” and “the trial court erred in dismissing appellant's post-conviction petition when he presented sufficient operative facts to merit relief or, at minimum, an evidentiary hearing.”

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