My apologies as I am currently on trial / in trial (depending on your region of the country), for what will be my fifth week of the new year. More precisely, I'm three weeks in to a murder trial on the most recent trial, and my attention is understandably drawn there rather than cranking out the weekly email edition. The normal schedule of publication should resume starting with the next edition, or at worst, in two weeks.

Since the last edition, as most know, Attorney General Mukasey's Department of Justice's "opt-in / fast track" regulations died thanks to very heads up litigation from the Habeas Corpus Resource Center. Habeas Corpus Resource Center v. U.S. Department of Justice, No. C:08-2649 CW (N.D. Cal.):

For the reasons stated in open court, Defendants are temporarily restrained and enjoined from making effective the rule entitled “Certification Process for State Capital Counsel Systems,” published at 73 Fed. Reg. 75,327 (Dec. 11, 2008), without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such period. This temporary restraining order will remain in effect until January 22, 2009, unless it is first superseded by a preliminary injunction.

Attorney General Holder's Department of Justice promulgated a new sixty-day comment period for the "opt-in / fast track" regulations for chapter 154. The DOJ concedes, albeit implicitly, that its prior Final Rule is now invalid.The DOJ “has decided to solicit further comment on all aspects of the final rule.” More info here.

The Texas Court of Criminal Appeals in Ex parte Billy Frederick Allen, granted relief using “actual innocence as a procedural gateway through which to [address] his otherwise barred constitutional claim of ineffective assistance of trial counsel.” After finding an actual innocence exception it finds grant of relief appropriate as:

trial counsel rendered ineffective assistance of counsel for failing to: (1) properly investigate the case and discover that the victim Sewell had named someone other than applicant as his attacker; (2) move for a continuance at trial to investigate the matter when he was surprised by Officer Clary’s testimony regarding Sewell’s statement to Clary in the ambulance; and (3) raise in his motion for new trial the issue of the newly discovered evidence that he discovered when he did have the matter investigated after trial.

In other opinions, the Ohio Supreme Court Disciplinary Counsel v. Stuard, Becker, & Bailey holds a judge and prosecutor should be publicly reprimanded for engaging in ex parte communications with a prosecutor during which the prosecutor was asked to, and did, prepare an opinion for the judge in upholding a death sentence. The Tenth Circuit in Charles Taylor v. Workman grants habeas relief as Mr. Taylor at his trial was entitled to "a correct jury instruction on the lesser-included offense of second-degree murder and that the error was not harmless." The Florida Supreme Court orders a new trial in Thomas William Rigterink v. State as the admission at trial of Mr. Rigterink's videotaped confession since he was in custody, the right-to-counsel warning was materially deficient, and the error was not harmless beyond a reasonable doubt. The Fifth Circuit grants the right to file a successive habeas petition in In re Swearingen (and in most normal editions this case probably would have lead off the edition) as to his Giglio claim and two Strickland claims. The Nevada Supreme Court in State v. Curtis Bonilla stayed a"district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case."

A number of relatively routine grants of relief are also noted. For example, relief is noted on Batson / Miller-El claims in Jonathan Bruce Reed v. Quarterman (the only notable thing about this grant of relief is that it is from the Fifth Circuit). Similarly, a grant of relief is noted on failure of trial counsel adequately investigate in mitigation including, Gaylon George Walbey, Jr. v. Quarterman (5th Cir). Finally on the routine front, an "Atkins" grant is noted in Glenn Holladay v. Allen (11th Cir) and a remand for hearing is ordered in Andrew Sasser v. Norris (8th Cir).

On the legislative front, legislation in Colorado has been introduced to end the state’s death penalty and to use the resultant savings to investigate the state’s more than 1,300 unsolved crimes. After Gov. Martin O’Malley called for a “fair up or down vote” on the death penalty during his State of the State address top lawmakers began discussing strategies for how that could happen this year; Maryland may be on the verge of joining New Jersey as a legislative repeal state. A bill to abolish the death penalty in New Mexico has won several key committee votes and appears headed for a showdown on the floor of the legislature according to local media. Finally in Montana a repeal bill in committee appears to have a better than fair chance at rolling back that state's death penalty.

I would be remiss for not noting that Jeffrey HIll in Ohio has received a 8-0 recommendation for clemency.

As always thanks for reading & my apologies for relying (due to time constraints) so heavily this week on FindLaw & Lexis' summary, both of which (more so the former than the latter) are occasionally incorrect. My apologies as well for an unusually bad bit of butchery of the English language this edition when materials aren't being "borrowed" from other sources.

Recent Executions

January

21 Frank Moore - Tex*

22 Reginald Perkins - Tex*

22 Darwin Brown - Okla*

28 Virgil Martinez - Tex*

29 Ricardo Ortiz - Tex*

February

4 David Martinez - Tex*

4 Steve Henley - Tenn*

Pending Executions

February

10 Dale Scheanette - Tex*

12 Johnnie Johnson - Tex*

12 Danny Joe Bradley - Ala*

19 Edward Bell - Va*

20 Luke Williams - SC

March

3 Jeffrey Hill - Ohio*

3 Willie Pondexter - Tex*

4 Kenneth Morris - Tex*

10 James Martinez - Tex*

11 Luis Salazar - Tex*

19 Phillip Halford - Ala*

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

SCOTUS

• Arizona v. Johnson, No. 07-1122 (1/26/2009) "In a case involving the authority of police officers to "stop and frisk" a passenger in a motor vehicle after a traffic stop, the Court rules that: 1) the first condition of Terry v. Ohio, i.e. a lawful investigatory stop, is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation; 2) police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity; and 3) to justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." [via FindLaw]
• Van de Kamp v. Goldstein, No. 07-854 (1/26/2009) "In the context of 42 U.S.C. section 1983 civil rights suits, a prosecutor's absolute immunity extends to claims that the prosecution failed to disclose impeachment material due to failure to: 1) properly train prosecutors; 2) properly supervise prosecutors; or 3) establish an information system containing potential impeachment material about informants." [via FindLaw]
• Nelson v. United States, No. 08-5657 (1/26/2009) "The Court re-emphasizes that its cases do not allow a sentencing court (as opposed to an appellate court) to presume that a sentence within the applicable Sentencing Guidelines range is reasonable. Here, the sentencing court clearly applied a presumption of reasonableness to petitioner's Guidelines range, and the circuit court erred in affirming the sentence." [via FindLaw]
• Waddington v. Sarausad, No. 07-772 (1/21/2009) "In a case arising from a fatal drive-by shooting of a group of students standing in front of a Seattle high school, grant of a petition for habeas relief from defendant's conviction for being an accomplice to second-degree murder, attempted murder, and assault is reversed where: 1) Washington courts reasonably concluded that the trial court's instruction to the jury regarding accomplice liability was not ambiguous; and 2) even were it ambiguous, the circuit court still erred in finding the instruction so ambiguous as to cause a federal constitutional violation." [via FindLaw]
• Pearson v. Callahan, No. 07-751 (1/21/2009) "In a 42 U.S.C. section 1983 action against state law enforcement officers who conducted a warrantless search of plaintiff's house incident to his arrest for the sale of methamphetamine to an undercover informant (whom plaintiff had voluntarily admitted to the premises), a court of appeals ruling reversing a ruling that defendants were entitled to qualified immunity is reversed where: 1) the procedure the Supreme Court mandated in Saucier v. Katz, 533 U.S. 194 (2001), should not be regarded as an inflexible requirement; and 2) petitioners were entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional." [via FindLaw]
• Spears v. United States, No. 08–5721 (1/21/2009) "In proceedings arising from the government's appeal of a sentence for conspiracy to distribute cocaine base and powder cocaine, a circuit court's ruling reversing a mandatory minimum sentence is reversed where district courts are entitled to reject and vary categorically from the crack-cocaine Sentencing Guidelines based on a policy disagreement with those Guidelines." [via FindLaw]
• Oregon v. Ice, No. 07-901, (1/14/2009) In determining to impose a concurrent or consecutive sentence a trial court may rely upon facts not found by a jury.
• Jimenez v. Quarterman, No. 07-6984 (1/13/2009) "Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal."
• Chambers v. US, No. 06-11206, (1/13/2009) "Failure to report" to prison is not a "violent felony" for purposes of the Armed Career Criminal Act's (ACCA)
• Herring v. US, No. 07-513 (1/14/2009) Mere negligence in maintenance of a warrant database is not enough to cause the fruits of an otherwise illegal arrest suppressed under the exclusionary rule.

(Initial List) Week ofFebruary 2, 2009 – In Favor of the Defendant or the Condemned

• Thomas William Rigterink v. State, 2009 Fla. LEXIS 151 (FL 1/30/2009) (dissent) "Defendant's convictions and sentences for first-degree murder were reversed, as the right-to-counsel warning he received was constitutionally deficient pursuant to the federal Fifth Amendment, and Fla. Const. art. I, § 9, and the admission and publication of his videotaped confession was harmful error, as the tape affected the jury's decision." [via Lexisone]
• Ex parte Billy Frederick Allen, Nos.P-75,580/75,581 (Tex Crim App 2/4/2009) (unpublished) (dissent) Writ granted using “actual innocence as a procedural gateway through which to [address] his otherwise barred constitutional claim of ineffective assistance of trial counsel.”

(Initial List)Week of February 2, 2009 – In Favor of the State or Government

• Thomas Warren Whisenhat v. Allen, 2009 U.S. App. LEXIS 2053 (11th Cir 2/3/2009) "Whisenhant raises four claims in this appeal: (1) his counsel was ineffective at his 1981 guilt phase trial for failing to present his only defense of insanity; (2) the state failed to disclose exculpatory evidence during the 1981 trial and a 1987 penalty phase trial; (3) the prosecutor's closing argument at the 1981 trial was fundamentally unfair; and (4) the trial judge's ex parte dealings with prosecutors prior to the 1987 penalty phase trial violated Whisenhant's due process right to an impartial judge. We conclude that the district court properly denied habeas relief and affirm."
• Danny Joe Bradley v. King, 2009 U.S. App. LEXIS 2056 (11th Cir 2/3/2009) "Bradley filed this § 1983 suit seeking access to biological and physical evidence that he hoped he could then use in a habeas proceeding to prove his innocence in the capital murder of his step-daughter. He received access to the evidence the Appellees had in their possession but the DNA testing of that evidence did not exculpate him. He has also received an accounting of the requested items which the Appellees could not find, that of the rape kit and the victim's pants. There is no evidence of bad faith on the part of the state or that further discovery will unearth these missing items. Accordingly, the district court did not abuse its discretion in denying additional discovery and the district court's judgment of dismissal is affirmed. Bradley's emergency motion for a stay of execution pending appeal is denied as moot."
• Bruce Douglas Pace v. McNeil, 2009 U.S. App. LEXIS 2054 (11th Cir 2/3/2009) Relief denied on whether counsel's "investigation into the extent of this addiction was adequate; whether he fully informed Pace's mental health experts about the addiction; and whether reasonably competent defense counsel would have treated the addiction as a mitigating circumstance and presented it to the jury at the penalty phase of the trial."
• Donald Edward Beaty v. Shriro, 2009 U.S. App. LEXIS 1828 (9th Cir 2/2/2009) "Habeas petitioner who raised a number of untimely and unexhausted claims, failed to meet the standards to bring a second and subsequent petition under 28 U.S.C.S. § 2244(b)." Relief denied includes on Atkins claims. [via LexisOne]
• People v. Michael Anthony Jackson, 2009 Cal. LEXIS 1007 (Cal 2/5/2009) "In an automatic appeal brought by an individual convicted and sentenced to death for murdering a police officer, the conviction and sentence are affirmed over claims of error regarding: 1) a denial of a continuance to prepare an Atkins defense; 2) Marsden error; 3) denial of defendant's request to represent himself; 4) prosecutorial misconduct; 5) evidence of other crimes; 6) lack of instruction to view defendant's admissions with caution; 7) considering the absence of mitigating factors as an aggravating factor; 8) denial of an automatic application to modify the verdict; 9) denial of his request to continue the sentencing hearing; 10) challenges to the death penalty statutes; and 11) cumulative error." [via FindLaw]
• Jeremiah Martel Rodgers v. State, 2009 Fla. LEXIS 154 (FL 2/5/2009) Death sentence affirmed on "issues: (1) whether error was committed when Rodgers was not given a competency hearing after he waived his right to a jury and waived the presentation of significant mitigation; and (2) whether the death sentence is disproportionate."

Week of January 26, 2009 – In Favor of the Defendant or the Condemned

• Glenn Holladay v. Allen, No. 0616026 (11th Cir 1/30/2009) "In conviction for capital murder, judgment of the district court holding that petitioner was exempt from execution and grant of writ of habeas corpus are affirmed where the court could not conclude that the district court clearly erred in finding that petitioner had shown he was mentally retarded under the test utilized by the state courts."
• In re Swearingen, 2009 U.S. App. LEXIS 1888 (5th Cir 1/26/2009) "A death-sentenced state inmate's motion to file a successive habeas corpus petition was granted as to his Giglio claim and two Strickland claims because the factual predicates for those claims could not have been previously discovered with the exercise of due diligence, as required by 28 U.S.C.S. § 2244(b)(2)(B)." [via LexisOne]
• Charles Taylor v. Workman, 2009 U.S. App. LEXIS 2142 (10th Cir 1/30/2009) "We hold, contrary to the district court and the OCCA, that Mr. Taylor was constitutionally entitled at trial to a correct jury instruction on the lesser-included offense of second-degree murder and that the error was not harmless. See Beck v. Alabama, 447 U.S. 625 (1980). Because we conclude that the OCCA's decision on this point was "contrary to . . . clearly established federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), we reverse the district court's denial of Mr. Taylor's petition for habeas relief on his first degree murder conviction, making it unnecessary to reach his other arguments."
• Thomas William Rigterink v. State, 2009 Fla. LEXIS 151 (FL 1/30/2009) "Defendant's convictions and sentences for first-degree murder were reversed, as the right-to-counsel warning he received was constitutionally deficient pursuant to the federal Fifth Amendment, and Fla. Const. art. I, § 9, and the admission and publication of his videotaped confession was harmful error, as the tape affected the jury's decision." [via Lexisone]

Week of January 26, 2009 – In Favor of the State or Government

• People v. Eric Wayne Bennett, No. S058472 (Cal1/29/2009) "In an automatic appeal in a death penalty case, the conviction and death sentence are affirmed over claims of error regarding: 1) a failure to record portions of grand jury proceedings; 2) prosecutorial misconduct; 3) jury instructions regarding felony murder; 4) cumulative error; 5) denial of a request to empanel a separate jury for the penalty phase; 6) exclusion of defendant's execution-impact evidence; 7) other penalty phase evidentiary rulings; 8) prosecutorial misconduct during cross-examination and closing argument; 9) the cumulative effect of prosecutorial misconduct; 10) juror misconduct issues; 11) denial of an application to modify the penalty verdict; 12) an equal protection challenge to imposition of the death penalty; 13) delay in appointment of appellate counsel; 14) Eighth Amendment challenge to pre-execution delay; and 15) other Constitutional challenges to the death penalty statute and instructions." [via FindLaw] "Trial court did not err in declining to excuse two jurors in defendant's first-degree murder case under Pen. Code, § 187, subd. (a), where it concluded they could fulfill their duties, and because a juror did not commit prejudicial misconduct during penalty phase deliberations, trial court did not err in denying defendant's motion for a new trial." [via Lexisone]
• Billy Joe Magwood v. Culliver, 2009 U.S. App. LEXIS 1147(11th Cir 1/23/2009) "Partial denial of petitioner-death row inmate's habeas corpus petition is affirmed in part and reversed in part where: 1) petitioner's fair-warning claim was successive since it was available at his original sentencing and petitioner did not assert that it fit into one of the 28 U.S.C. section 2244(b)(2) exceptions; and 2) the district court erred in holding that petitioner's counsel's performance was deficient." [via FindLaw]
• Jason L. Wheeler v. State, 2009 Fla. LEXIS 137 (FL 1/29/2009) "Judgment was affirmed as there was sufficient evidence of first-degree murder of deputy one as defendant had to pump shotgun each time to chamber round of ammunition, and defendant pursued deputies and engaged in several separate gun battles with them, even after seeking refuge in woods and coming back to fire his gun." [via Lexisone]
• Charles Peterson v. State, No. SC06-252 (FL 1/29/2009) "Conviction of first-degree murder and a sentence of death arising from the fatal shooting of victim during a robbery are affirmed where: 1) the trial court did not abuse its discretion because the substantial similarities between the crimes greatly outweighed the dissimilarities; 2) the trial court did not abuse its discretion by allowing the collateral crime evidence because it was probative of material issues and its probative value was not substantially outweighed by the danger of unfair prejudice.; 3) criminal-appellant's claim that the state lethal injection process is unconstitutional was without merit; 4) death sentence was proportionate to the case; 5) criminal-appellant was not entitled to a new penalty phase; 6) it was irrelevant for constitutional purposes that the sentencing jury heard evidence beyond that required to prove the fact of conviction; 7) criminal-appellant's claims that the standard penalty-phase jury instructions given in his case unconstitutionally! shifted the burden of proof to him to establish mitigating circumstances and to show that those factors outweighed the aggravating circumstances were without merit; and 8) the evidence was sufficient to support the conviction under a felony murder theory." [via FindLaw]
• Peter Ventura v. State, 2009 Fla. LEXIS 131 (FL 1/29/2009) "Although in Baze v. Rees United States Supreme Court had not adopted majority standard for determining constitutionality of mode of execution, Florida Supreme Court concluded that Florida's current lethal injection protocol would pass constitutional muster under any of the risk-based standards considered by the Baze Court." [via Lexisone]
• Jason Dirk Walton v. State, 2009 Fla. LEXIS 136 (FL 1/29/2009) "Even if a prisoner's claim regarding inconsistent prosecutorial theories did not face a procedural bar, it would still fail because the State advanced a wholly consistent theory of the crime in prosecuting the codefendants. Thus, the prisoner's Fla. R. Crim. P. 3.851 motion was properly denied." [via Lexisone]
• Perry Alexander Taylor v. State, 2009 Fla. LEXIS 132 (FL 1/29/2009) (on rehearing) "As there was no material new evidence presented, the State was not shown to have withheld evidence, and trial counsel was not found to have failed to object to abuses by the State, each of a prisoner's claims of newly discovered evidence was sufficiently refuted. Thus, he was not entitled to postconviction relief under Fla. R. Crim. P. 3.850." [via Lexisone]
• Jason L. Wheeler v. State, 2009 Fla. LEXIS 137 (FL 1/29/2009) "Judgment was affirmed as there was sufficient evidence of first-degree murder of deputy one as defendant had to pump shotgun each time to chamber round of ammunition, and defendant pursued deputies and engaged in several separate gun battles with them, even after seeking refuge in woods and coming back to fire his gun." [via Lexisone]
• Ronald Palmer Heath v. State, 2009 Fla. LEXIS 134 (FL 1/29/2009) "In convictions for first degree murder, armed robbery and forgery-related crimes, denial of postconviction relief under Florida Rule of Criminal Procedure 3.851 is affirmed where: 1) regardless of whether criminal-appellant stabbed victim in the throat while he was still alive or only after victim was dead, criminal-appellant could still be convicted as a principal of either premeditated murder or first-degree felony murder; 2) even if criminal-appellant received a new trial, criminal-appellant's brother/co-conspirator recanted testimony was not of such nature that it would probably produce an acquittal of criminal-appellant or even a conviction on a lesser charge; 3) criminal-appellant's brother's testimony was not of such a nature that it would probably produce a life sentence recommendation; 4) trial counsel's performance was not deficient for the failure to present an intoxication defense; 5) criminal-appellant failed to show that his trial counsel was ineffective during! the penalty phase for the failure to investigate and present a number of mitigating circumstances; 6) trial counsel was not ineffective for failing to raise a meritless challenge, and criminal-appellant was not entitled to relief on that claim; 7) the court has repeatedly held that Florida's capital sentencing scheme does not violate the United States Constitution under Ring v. Arizona; and 8) criminal-appellant's jury-instruction claim was procedurally barred in this collateral context." [via FindLaw]
• Robert Consalvo v. State, No. SC07-2175 (FL 1/29/2009) "In a criminal matter concerning the admission of DNA evidence to trial, order denying a motion for DNA testing under Florida Rule of Criminal Procedure 3.853 is affirmed where: 1) criminal-appellant's first motion was filed before enactment of rule 3.853 and his later motion should be exempted from the rule's requirements; 2) criminal-appellant's motion was insufficiently pleaded under rule 3.853; 3) the standards for granting DNA testing vested broader discretion in the trial court prior to the enactment of the statute and rule and the court has consistently upheld application of the statute and rule to motions decided after their enactment; and 4) the trial court did not err in concluding that criminal-appellant's motion did not meet requirements of rule 3.853." [via FindLaw]
• Michael Hernandez, Jr. v. State, 2009 Fla. LEXIS 149 (FL 1/30/2009) "Trial court did not err in refusing to strike jury venire after juror saw defendant in shackles, as juror was excused for cause and precautions were implemented to prevent jury from seeing shackles. Expert's presence during penalty phase was harmless, as, inter alia, he did not refute factual testimony of witnesses and admitted observing testimony." [via Lexisone]
• Gerald Delane Murray v. State, 2009 Fla. LEXIS 146 (FL 1/30/2009) "There was sufficient evidence to support defendant's first-degree murder conviction based on physical evidence at the scene of the crime, defendant's confession to a cellmate, his attempt to flee on two occasions, and his having been seen in the vicinity of the incident around the time of the crime." [via Lexisone]
• Kayle Barrington Bates v. State, 2009 Fla. LEXIS 142 (FL 1/30/2009) "A postconviction relief court properly denied defendant's motion for DNA testing, pursuant to Fla. R. Crim. P. 3.853, since, based on being found at the scene of the crime just minutes after the murder, the victim's ring being found on him, and his admissions, it was reasonable to conclude that the testing would not produce exoneration." [via Lexisone]

Week of January 26, 2009 – Noncapital

• Lebron v. Sanders, No. 082054 (2nd Cir 1/26/2009) "In a matter brought by habeas petitioner, motion for an extension of time to file motions to proceed in forma pauperis and for certificate of appealability with respect to writ of habeas corpus is granted where: 1) local district rules required respondent to provide petitioner with copies of unreported decisions or decisions reported exclusively on computerized databases that were cited in its opposition to the habeas petition; and 2) petitioner could not access, without cost, some of the federal case law that formed part of the substantive basis of the district court's challenged opinion." [via FindLaw]

Week of January 26, 2009 – Ethics

• Disciplinary Counsel v. Stuard, Becker, & Bailey, 2009 Ohio 261; 2009 Ohio LEXIS 41 (Ohio 1/29/2009) "A judge violated Ohio Code Jud. Conduct Canon 3(B)(7) by engaging in ex parte communications with a prosecutor during which the prosecutor was asked to, and did, prepare an opinion for the judge in a criminal case. The prosecutor also violated Ohio Code Prof. Resp. DR 7-110(B) because of these communications. Both were publicly reprimanded." [via Lexisone]

Week of January 19, 2009 – In Favor of the Defendant or the Condemned

• Gaylon George Walbey, Jr. v. Quarterman, 2009 U.S. App. LEXIS 942 (5th Cir 1/19/2009) (unpublished) "Habeas petitioner was entitled to habeas relief on Sixth Amendment ineffective assistance claim. Inter alia, counsel only scanned files sent to him on petitioner's background, and psychologist who testified on petitioner's behalf at trial, who was unaware of history of petitioner's relationship with victim, did severe damage to petitioner's case." [via Lexisone]
• Andrew Sasser v. Norris, 2009 U.S. App. LEXIS 1321 (8th Cir 1/23/2009) ". District court erred in finding that Sasser had procedurally defaulted on his claim that his death sentence violates the Eighth Amendment because he is mentally retarded, and the case is remanded for an evidentiary hearing; district court properly concluded that Sasser's ineffective assistance of counsel claim was not before the court because this court's remand order limited the issue to the question of whether Sasser was mentally retarded and whether pursuant to Atkins the Eighth Amendment prohibits his execution; government's claim that the habeas petition was time barred had been waived by the state's failure to assert a statute of limitations defense."

Week of January 19, 2009 – In Favor of the State or Government

• Ex parte Michael David Carruth, 2009 Ala. LEXIS 27 (Ala 1/23/2009) "Because nothing in the language in Ala. R. Crim. P. 32.1(f) authorized a circuit court to grant defendant permission to file an "out-of-time" petition for a writ of certiorari in the state supreme court, and because defendant's Ala. R. App. P. 2(b) petition had been denied, the circuit court erred in granting defendant's Rule 32.1(f) motion." [via Lexisone]
• Dwayne Irwin Parker v. State, 2009 Fla. LEXIS 39 (FL 1/22/2009) "Denial of postconviction relief from a capital conviction of first-degree murder and sentence of death is affirmed in part and reversed in part where: 1) criminal appellant's sixteen claims on direct appeal of his convictions and sentence of death were without merit, not properly preserved for appellate review, or harmless beyond a reasonable doubt; and 2) counsel failed to fully investigate and present mitigating evidence regarding appellant's childhood and mental health." [via FindLaw]
• Joe Elton Nixon v. State, 2009 Fla. LEXIS 37 (FL 1/22/2009) "Denial of postconviction relief for conviction for murder and trial court's finding that criminal appellant is not mentally retarded are affirmed where there was competent, substantial evidence to support the trial court's determination that appellant did not meet the criteria for mental retardation." [via FindLaw]
• William Kelley v. State, No. SC08-608 (FL 1/22/2009) "Denial of criminal-appellant's successive postconviction motion for conviction of first-degree murder and sentence of death and petition for writ habeas corpus are affirmed over claims of error that: 1) State of Florida violated Brady v. Maryland by failing to disclose evidence disposition forms which indicated that in 1966 and 1967, certain evidence was transported from the Florida Sheriff's Bureau Crime Laboratory in Tallahassee back to the submitting agency after laboratory examination; and 2) a manifest injustice occurred because evidence was destroyed prior to appellant's trial." [via FindLaw]
• Jared William Jones v. State, 2009 OK CR 1; 2009 Okla. Crim. App. LEXIS 2 (Okla Crim App 1/21/2009) (dissenting) "Trial court did not err by failing to remove a prospective juror who had expressed reservations "about how you shoot five people in self-defense" under Okla. Stat. tit. 22, § 659(2) (2001) because the court did not find that the trial court improperly persuaded the juror into saying that she could be a fair juror." [via Lexisone]
• Comm. v. Angel Reyes, 2009 Pa. LEXIS 172 (PA 1/23/2008) "Death sentence was affirmed as jury found one mitigating factor under 42 Pa.C.S. § 9711(e)(8) and one aggravating factor under § 9711(d)(16). Fact that jury gave more weight to aggravating factor than mitigating factor did not render death sentence product of passion, prejudice, or any other arbitrary factor under § 9711(h)(3)(i)." [via Lexisone]
• Comm. v. James W. VanDivner, 2009 Pa. LEXIS 174 (PA 1/23/2008) (dissent) "Defendant's conviction of first-degree murder (18 Pa.C.S. § 2502) and death sentence were affirmed. His statement to police that he killed the victim and recognized that the case was a death penalty case corroborated his full awareness of what he had done. He failed to show the onset of his alleged mental retardation occurred prior to age eighteen." [via Lexisone]
• Comm. v. Henry Daniels, 2009 Pa. LEXIS 175 (PA 1/23/2008) "It was improper to grant inmates relief on their petitions under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. The inmates did not show a reasonable probability that the outcome of the trial would have been different if trial counsel presented testimony challenging the Commonwealth's theory as to the specific cause of a victim's death." [via Lexisone]

Week of January 12, 2009 – In Favor of the Defendant or the Condemned

• Jonathan Bruce Reed v. Quarterman, 2009 U.S. App. LEXIS 579 (5th Cir 1/12/2009) "[A] careful examination of the record reveals that the State's asserted reasons for striking prospective black jurors Osby and Jones were mere pretexts for discrimination. For some of the explanations, the State misconstrued the jurors' testimony. For others, the State accepted white jurors who exhibited the same characteristics. As stated above, the black and white jurors that we compare need not be exactly the same for us to conclude that the prosecution's proffered reasons for striking the black prospective jurors were pretexts for discrimination, because "[a] per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters." Much like in Miller-El II, "[c]omparing [these strikes] with the treatment of panel members who expressed similar views supports a view that race was significant in determining who was challenged and who was not." Id. at 252. Thus, the comparative analysis demonstrates what was really going on: the prosecution used its peremptory challenges to ensure that African-Americans would not serve on Reed's jury"
• State v. Curtis Bonilla, --- (Nev 1/12/2009) [via Harmful Error] Stay granted of a "district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case."
• Jerry Jerome Smith v. State, 2009 Ala. Crim. App. LEXIS 2 (Ala 1/16/2009) "The trial court's conclusion that defendant was not mentally retarded was supported by the record, as a forensic psychologist testified that defendant had an extensive work history, managed his money, and drove a stick-shift car. Defendant's conviction for murder and his death sentence pursuant to Ala. Code § 13A-5-40(a)(10) were affirmed." [via Lexisone]
• Tillon Lashon Carter v. State, 2009 Tex. Crim . App. Unpub. LEXIS 15 (Tex. Crim. App. 1/14/209) "Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing appellant's ten points of error, we find them to be without merit."

Week of January 12, 2009 – In Favor of the State or Government

• Kevin Keith v. Bobby, 2009 U.S. App. LEXIS 399; 2009 FED App. 0016P (6th Cir. 1/13/2009) (dissent) Panel splits on this successive petition over whether (from the dissent's perspective) "Keith’s substantial new evidence together with the lack of physical evidence against Keith, and the weakness of the eyewitness testimony presented at trial, we can and should conclude that the new evidence warrants further exploration."
• State v. Kevin Mercer, 2009 S.C. LEXIS 11 (SC 1/12/2009) Relief denied on questions concerning: "(1) the disqualification of a juror; (2) the exclusion of evidence, both in the guilt and sentencing phases; (3) the denial of his post-trial motion for additional funds to test gloves for gunshot residue; and (4) the denial of his post-trial motion for a new trial based on after-discovered evidence."

Week of January 5, 2009 – In Favor of the State or Government

• People v. Doolin, 45 Cal. 4th 390; 2009 Cal. LEXIS 2 (Cal 1/5/2009) "Attorney conflict claims under the California constitution are to be analyzed under the same standard as that articulated by the U.S. Supreme Court in Mickens v. Taylor. In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) alleged conflict of interest based on counsel's compensation agreement; 2) a denial of a request for second counsel; 3) improper admission of evidence of defendant's character; 4) the testimony of defendant's mother; 5) prosecutorial misconduct; 6) admissibility of DNA evidence; 7) a denial of a request for continuance; 8) a Faretta motion; 9) challenges to California's death penalty law; and 10) international law." [via Findlaw]
• Phillip Antwan Davis v. Branker, 2009 U.S. App. LEXIS 261 (4th Cir 1/7/2008) (unpublished) Relief denied on "whether the trial court erred in excluding evidence of various correspondence Davis mailed to his mother while he was awaiting trial.. . . [and] whether the trial court erred in submitting, as separate aggravating circumstances, that Joyce's murder was committed in the course of an armed robbery and for pecuniary gain."
• Thomas Michael Larry v. Branker, 2009 U.S. App. LEXIS 7 (4th Cir 1/5/2009) "Death row inmate's habeas petition is denied where: 1) the state court did not err by rejecting his request for a second-degree murder jury instruction; 2) the relevant North Carolina statute reasonably requires an I.Q. of 70 or below in order to be ineligible for capital punishment because of mental retardation; and 3) the state court reasonably concluded that Petitioner's I.Q. exceeded 70, when he scored above 70 on some tests but below 70 on another test." [via Findlaw]
• Gary Johnson v. Quarterman, 2009 U.S. App. LEXIS 217 (5th Cir 1/7/2009) (unpublished) Relief denied "claims that (1) his due process rights under Brady v. Maryland were violated by the State's suppression of evidence that the Fergusons, who testified for the State at trial, had been hypnotized; and (2) his trial counsel rendered ineffective assistance by calling Johnson's brother, Terry, as a witness at the guilt phase of trial."
• Joseph Murphy v. State, 2009 U.S. App. LEXIS 182; 2008 FED App. 0007P (6th Cir. 1/8/2009) "Denial of petition for habeas corpus is affirmed where: 1) trial counsel did not render ineffective assistance during the mitigation phase of defendant's sentencing by failing to retain certain experts or by providing the prosecution with documentary evidence of defendant's past antisocial behavior; 2) the jury was not improperly precluded from considering defendant's psychological age as mitigating evidence during sentencing; 3) the Ohio Court of Appeals' determination that defendant is not mentally retarded is not an unreasonable application of federal law or an unreasonable determination of the facts; and 4) defendant's Sixth Amendment right to counsel was not violated by the admission into evidence of numerous statements he made to the police." [via Findlaw]
• Marcus Wellons v. Hall, No. 07-13086 (11th Cir 1/5/2008) "Death row inmate is denied habeas relief where: 1) claims of an inappropriate relationship between the judge, jurors and bailiff are procedurally barred; 2) permitting full discovery from all mental health experts consulted by defense counsel was harmless error given that there was no viable insanity and mental illness defense nor a viable actual innocence defense; and 3) ineffective assistance claims are unavailing." [via Findlaw]

Week of December 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."
• Edward Jones v. State, No. 47771 (Nev 12/31/2008)(unpublished) [via Harmful Error] "The Court found ineffective assistance of trial counsel based upon failure to investigate mitigating evidence and failure to prepare for the penalty phase. The Court also found extensive prosecutorial misconduct in the closing argument on the penalty phase. The Court acknowledged that it relied upon an erroneous standard of review on direct appeal when it affirmed Jones' death sentence despite a finding of prosecutorial misconduct because of "overwhelming evidence of guilt." "Rather than focusing on the evidence of guilt, when reviewing prosecutorial misconduct committed during a penalty hearing, the focus of the prejudice inquiry should be on the penalty proceedings and whether the misconduct 'so infected the proceedings with unfairness as to make the results a denial of due process." Someone puzzling is the fact that the opinion with the erroneous standard was published, but the Court's acknowledgment of its use of incorrect standard is unpublished, so the erroneous standard appears to stand as valid despite its obvious flaw. The Court affirms Jones' judgment of conviction as to issues raised concerning the guilt phase.
• Fernando Belmontes v. Ayers,2008 U.S. App. LEXIS 26949 (9th Cir 12/30/2008) Denial of rehearing en banc.

Week of December 29, 2008 – In Favor of the State or Government

• 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."
• 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)."
• Avram Nika v. State, 124 Nev. Adv. Rep. 103 (Nev 12/31/2008) [via Harmful Error] "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction. Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder. We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided. Nika's conviction was final before Byford was decided. Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial."
• 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."

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."

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. The Ninth Circuit blog beautifully digests Gonzalez.

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