The Supreme Court's holding inAlbert Holland v. Floridaleads off this edition. The headnote to the case places the holding well when it notes that "Holland diligently pursued his rights by writing [counsel] numerous letters seeking crucial information and providing direction, by repeatedly requesting that [counsel] be removed from his case, and by filing his own pro se habeas petition on the day he learned his AEDPA filing period had expired." Despite his diligence the district court denied relief and the Court of Appeals applied the AEDPA's one year statute of limitations a little to rigidly. On these facts, therefore, a remand is necessary for further evaluation as to the applicability of equitable tolling.

On June 14, the U.S. Supreme Court granted certiorari in inCullen v. Pinholster:

(1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

In the lower courts several favor decisions are noted includingWarren Lee Hill, Jr. v. Schofieldfrom the Eleventh Circuit. The panel inHillholds that Georgia law places an unconstitutional burden of proof on defendants asserting that they are barred from execution underAtkins, by requiring that they prove their intellectual disability by beyond a reasonable doubt. Georgia remains alone in that requirement.Hillseemingly would call in to question the standards of proof in the four other states which require a defendant to prove mental retardation by clear and convincing evidence.

Other cases of note includes yet another grant of relief in Arizona on aggravating factor (F)(6) (heinousness, cruelty, and depravity) inState v. Aaron Brian Gunches. The Texas Court of Criminal Appeals inAdrian Estrada v. Stategrants relief, albeit after the State conceded error, as a key punishment phase witness incorrectly testified as to the potential classification of Mr. Estrada in the prison system if sentenced to life without parole. Finally, and also from the CCA, inEx parte Jose Garcia Brisenothe Court grants relief onPenryerror as the jury instructions did "not adequately inform the jury that it may assess a punishment less than death on account of [the mitigating evidence] irrespective of what the evidence shows as to [the defendant’s] deliberateness and future dangerousness."

In other news,Troy Davis' evidentiary hearingbegins this week on his unique claim of factual innocence. DPIC notes that "Texas Judge Paul C. Murphy recently ordered prosecutors to hand over key evidence from a 1989 murder case to theInnocence Projectand the Texas Observer for DNA testing."California's latest attempts at lethal injection regulationswere scuttled by the state's Office of Administrative Law which identified several passages that conflicted with state law, that were unclear, or failed to properly state reasons for the new procedures.

My apologies for the more frequent than usual skipping of scheduled editions of late. Thanks, in large part to the bad economy, my case load has spiked and my time has been stretched much more thin than usual. Please also note that next week's edition is unlikely to run as I am scheduled to be out of the country for a family wedding.

Pending Executions

June

30 Jonathan Green* (Tex)

July

1 Michael Perry* (Tex)

13 William Garner* (Ohio)

20 Derrick Jackson* (Tex)

20 Jeffrey Matthews (Okla)

Stays

Commuted

June

10 Richard Nields* (Ohio)

Executions

June

2 George Jones* (Tex)

9 Melbert Ford* (Ga)

10 John Forrest Parker* (Ala)

15 David Lee Powell* (Tex)

18 Ronnie Gardner* (Utah)

SCOTUS

• Albert Holland v. Florida, No 09-5327 (6/14/2010) "Holland diligently pursued his rights by writing [counsel] numerous letters seeking crucial information and providing direction, by repeatedly requesting that [counsel] be removed from his case, and by filing his own pro se habeas petition on the day he learned his AEDPA filing period had expired. Because the District Court erroneously concluded that Holland was not diligent, and because the Court of Appeals erroneously relied on an overly rigid per se approach, no lower court has yet considered whether the facts of this case indeed constitute extraordinary circumstances sufficient to warrant equitable tolling. The Eleventh Circuit may determine on remand whether such tolling is appropriate, or whether an evidentiary hearing and other proceedings might indicate that the State should prevail.." [opinion headnote]
• Holder v. Humanitarian Law Project, No. 08-1498; 09-89 (6/21/2009) "The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance." [viaSCOTUSBlog]
• Dolan v. United States, No 09-367 (6/14/2010) Even where a sentencing court misses the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5), it may still require a criminal defendant to repay his victims.
• Dillon v. United States, No. 09-6338 (6/17/2010) 3582(c)(2) proceedings are not "resentencings" and as suchBooker's guarantees do not apply.
• Berghuis v. Thompkins, No. 08-1301 (6/1/2010) The Court, 5-4, holds that a person must state they want to remain silent, or want an attorney, in order to invoke their right to remain silent underMiranda.
• Carr v. United States, No. 08-1301 (6/1/2010) The Court, 6-3, holds that the federal Sex Offender Registration and Notification Act does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

Week ofJune 13, 2010:In Favor of the Accused or Condemned(initial list)

• Hill v. Schofield, 08-15444 (11th Cir 6/18/2010) "InHill v. Schofield, the 11th Circuit Court of Appeals determined that Georgia law placed an unconstitutional burden of proof on defendants to prove mental retardation. Georgia is the only state in the U.S. to require a defendant to prove mental retardation beyond a reasonable doubt." [viaArizona Capital Representation Project]
• State v. Aaron Brian Gunches, 2010 Ariz. LEXIS 23 (Az 6/16/2010) "Even when viewed in the light most favorable to sustaining the verdict, the evidence suggests that Price’s final shot "came in an attempt . . . to kill the victim, not to engage in violence beyond that necessary to kill. The jury’s verdict on the (F)(6) aggravator was therefore in error."
• Adrian Estrada v. State, 2010 Tex. Crim. App. LEXIS 722 (Tex. Crim. App. 6/16/2010) State concedes error where a key punishment phase witness incorrectly testified as to the potential classification of Mr. Estrada in the prison system if sentenced to life without parole. [brief]

Week ofJune 13, 2010:In Favor of the Prosecution or Warden(initial list)

• State v. Michael Lemark Ward, 2010 N.C. LEXIS 418 (NC 6/17/2010) "N.C.G.S. § 15A-2005(e) does not explicitly prohibit a trial court from submitting the special issue of mental retardation to the jury in a bifurcated, rather than unitary, capital sentencing proceeding, we hold that the legislature has left that determination to the sound discretion of the capable trial judges of our State. Such a holding is consistent with the long-standing principle that when a statute is silent on whether to bifurcate, trial judges have the inherent authority and discretion to manage proceedings before them. Here, the record does not reflect an abuse of that discretion."
• Ronnie Lee Gardner v. State, 2010 Utah LEXIS 99; 2010 UT 46 (Utah 6/14/2010) "All of the claims Mr. Gardner raises in his most recent petition for post-conviction relief are claims that he could have raised more than a decade ago. Under the PCRA, these claims are barred. We have reviewed Mr. Gardner’s contention that this court may set aside the procedural rules of the PCRA in the interests of justice and are unpersuaded that the interests of justice require us to engage in the scope of review that he requests."
• Michael Eugene Sample v. State, 2010 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. 6/15/2010) Relief denied on claims that "(1) the State violated his right to due process and a fair trial by suppressing exculpatory evidence against him; (2) the State knowingly presented false testimony; and (3) his sentence of death violates Apprendi because the jury imposed the sentence based upon aggravating circumstances that were not contained in the indictment, presented to the grand jury, or proved to the jury beyond a reasonable doubt. The post-conviction court dismissed the petition, and, after a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court."
• Larry McKay v. State,2010 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 6/15/2010) Relief denied on whether "the post-conviction court erred when it dismissed his petition because he proved that the State improperly suppressed multiple pieces of material evidence."
• United States v. Len Davis, 2010 U.S. App. LEXIS 12370 (5th Cir 6/16/2010) More next edition.
• State v. Christopher Allen Hargrave, 2010 Ariz. LEXIS 22 (Az 6/14/2010) More next edition.
• Selwyn Davis v. State, 2010 Tex. Crim. App. LEXIS 723 (Tex. Crim. App 6/16/2010) More next edition, however, Lexis notes, "[t]rial court did not abuse its discretion under Tex. R. Evid. 403 in admitting evidence in appellant's capital murder case that he killed the victim's cat, which suffered wounds similar to the victim's; for purposes of Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) and Tex. R. Evid. 401, the evidence clearly proved that appellant killed the cat."

Week ofJune 6, 2010:In Favor of the Accused or Condemned

• Ex parte Jose Garcia Briseno, No. AP-76,132 (Tex. Crim. App. 6/9/2010)(unpublished) Relief granted on Penry error as the jury instructions did ""not adequately inform the jury that it may assess a punishment less than death on account of [the mitigating evidence] irrespective of what the evidence shows as to [the defendant’s] deliberateness and future dangerousness."
• Gary Carl Simmons Jr v. Epps,2010 U.S. App. LEXIS 11902 (5th Cir 6/10/2010)(unpublished) COA granted "whether the trial court erred during the sentencing phase of his trial by excluding relevant mitigating evidence in violation of the Sixth, Eighth, and Fourteenth Amendments." COA denied, however, on whether, "on (2) whether Simmons was denied effective assistance of counsel during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments "

Week of June 6, 2010:In Favor of the Prosecution or Warden

• Thomas Paul West v. Ryan, 2010 U.S. App. LEXIS 11835 (9th Cir 6/10/2010) "In a capital habeas matter in which petitioner challenged the district court’s denial, without an evidentiary hearing, of petitioner’s claim of ineffective assistance of sentencing counsel, the order is affirmed where: 1) it was clear that defense counsel promptly made appropriate mitigation inquiries and did not wait until after trial to begin their investigation; 2) petitioner failed to explain how an evidentiary hearing would allow him to establish ineffective assistance of counsel; and 3) there was no evidence that counsel’s actions somehow impeded a psychologist from performing a thorough neuropsychological evaluation." [via FindLaw]
• Douglas Mickey v. Ayers, 2010 U.S. App. LEXIS 11495 (9th Cir 6/7/2010) " In a capital habeas matter, the denial of the petition is affirmed where: 1) the Japanese prison conditions did not overcome petitioner’s will and render his confession involuntary; 2) there was nothing in the record to suggest any additional physical or psychological coercion accompanied petitioner’s admissions in Hawaii; 3) any alleged deficiencies in counsel’s representation were justified by the reasonable strategic decision to investigate a defense consistent with petitioner’s extrajudicial statements; and 4) because certain harmful sexual deviancy evidence would have been admitted in the penalty phase had counsel taken petitioner’s proposed path and since the jury must have relied heavily on the gruesome facts of the crime despite the "substantial" mitigation case, the court’s "confidence in the outcome" was not undermined by petitioner’s counsel’s alleged deficiencies." [via FindLaw]
• Gary Roland Welch v. Workman, 2010 U.S. App. LEXIS 11491 (10th Cir 6/7/2010) "In a capital habeas matter, the denial of petitioner’s habeas petition is affirmed where: 1) even assuming an allegedly hearsay statement was testimonial, numerous third-party eyewitnesses testified that defendant repeatedly stabbed and beat the victim; 2) the overwhelming evidence presented in the guilt phase negated any reasonable belief the prosecutor’s minimal questioning and closing comments had a substantial and injurious effect on the jury’s guilty verdict; 3) the jury was instructed on the non-capital crime of first-degree manslaughter, and was not faced with an all-or-nothing choice; and 4) while portions of the victim impact statements went outside constitutional bounds, this evidence did not so clearly sway the jury as to cause petitioner actual prejudice." [via FindLaw]
• United States v. Julius Omar Robinson, 2010 U.S. App. LEXIS 11675 (5th Cir 6/8/2010) COA denied on claims of IAC and failure to hold an evidentiary hearing, "First, he alleges that his trial counsel did not adequately investigate and rebut the prosecution’s evidence regarding future dangerousness–Robinson’s alleged gang involvement, the shooting of Tucker’s truck, and the purported hit order on Williams. Second, Robinson claims his trial counsel did not adequately investigate his life history, which would have uncovered additional mitigating evidence." Finally, "the district court erred by disposing of his § 2255 motion without a hearing."
• Marcin Sosniak v. State,2010 Ga. LEXIS 423 (Ga 6/7/2010) "Trial court did not err in denying defendant’s motion to suppress statements he made to officers after being brought in to the sheriff’s office in handcuffs, via patrol car, for questioning during the early morning hours. Defendant was un-handcuffed and allowed to wait in an unlocked area, and he was specifically told he was not under arrest." [via LexisOne]
• State v. John Stojetz, 2010 Ohio App. LEXIS 2068; 2010 Ohio 2544 (Ohio 12th App 6/7/2010) "Because the requirements of R.C. 2953.23 were mandatory, the trial court did not have the discretion to consider a second, successive petition for postconviction relief that did not satisfy those requirements. Further, the inmate’s argument in support of his successive petition was barred by the doctrine of res judicata." [via LexisOne]
• Clarence Rozell Goode v. State, 2010 Okla. Crim. App. LEXIS 11; 2010 OK CR 10 (Okla. Crim. App. 6/9/2010) Relief denied on claims including that: "trial court erred when it allowed the State to introduce, over objection,[ a witness's] video-taped statement;" State's use of its own witness's prior inconsistent statements as evidence of guilt; admissibility of certain evidence; prosecution's " references to the movie Scarface and implications that Goode was emulating the gangster portrayed by Al Pacino in that movie;" victim impact evidence was improperly admitted during the second stage of trial.; " "prosecutor committed misconduct during several phases of the trial, especially during closing argument;" counsel failed to object to hearsay testimony; and mandatory review

Week of May 30, 2010:In Favor of the Accused or Condemned

• State ex rel. Steffen v. Court of Appeals – State ex rel. Steffen,2010 Ohio 2430 (Ohio 6/3/2010) Intermediate appellate court lacked jurisdiction to hear state’s appeal where the trial court ordered a new penalty phase hearing. "Steffen has established his entitlement to the requested writ of prohibition to prevent the court of appeals judges from proceeding to consider the state’s pending appeal from the common pleas court’s decision granting a new penalty-phase trial in the underlying criminal case. Thus, we grant a writ of prohibition to prevent the court of appeals judges from proceeding on the state’s pending appeal and to compel them to dismiss the state’s appeal."
• In re: Jeffrey Beard, et.al., 2010 U.S. App. LEXIS 11299 (3rd Cir 6/3/2010) (unpublished) "[T]he Commonwealth contends the District Court improperly granted Gwynn’s habeas corpus discovery requests. Because the Commonwealth’s claims may be addressed in the course of an ordinary appeal, the Commonwealth has not established that there is "no other adequate means" by which it may obtain relief from the District Court’s habeas corpus discovery order. The Commonwealth therefore has failed to make the necessary showing to warrant mandamus relief."
• In re Jeffrey Beard, et al, 2010 U.S. App. LEXIS 11294 (3rd Cir 6/3/2010)(unpublished) "[I]n sum, the Commonwealth contends the District Court improperly granted Uderra's habeas corpus discovery requests. Because the Commonwealth's claims may be addressed in the course of an ordinary appeal, the Commonwealth has not established that there is "no other adequate means" by which it may obtain relief from the District Court's habeas corpus discovery order. The Commonwealth therefore has failed to make the necessary showing to warrant mandamus relief."
• Edward Harold Schad v. Ryan, 2010 U.S. App. LEXIS 11909 (9th Cir 6/3/2010) (en banc) (dissent) Notable dissent on the refusal to hear en banc whether, on these facts, a remand was necessary under the AEDPA for an evidentiary hearing.

Week of May 30, 2010:In Favor of the Prosecution or Warden

• Teresa Wilson Lewis v. Wheeler, 2010 U.S. App. LEXIS 11377 (4th Cir 6/4/2010) Relief denied, most notably, on the constitutionality of Virginia law, post-Apprendi, that finds that by pleading guilty a defendant automatically waives jury determination of penalty. Relief also denied on whether "counsel was ineffective in failing to investigate and present additional evidence during the sentencing phase which she contends would have (1) rebutted the Commonwealth’s theory that she was the mastermind of the murder conspiracy and that she acted with a depraved mind in planning and executing the murder plot, and (2) otherwise mitigated her crimes by humanizing her, outweighing the aggravating evidence and making her a candidate for mercy."
• David Wyatt Jones v. Sec'y., Dept. of Corrs.,2010 U.S. App. LEXIS 11154 (11th Cir 6/2/2010) "In a capital habeas matter, a denial of petitioner's application for a certificate of appealability is affirmed where: 1) the record supported a finding that petitioner's attorneys made the tactical decision described by the Florida Supreme Court, and it was not debatable that the ruling of that court was a reasonable application of clearly established federal law; 2) the record supports the description of the evidence by the Florida Supreme Court; 3) petitioner did not explain how the introduction of this evidence violated his constitutional rights; and 4) petitioner's attorneys investigated his mental health, and they presented expert testimony regarding his mental functioning and drug addiction." [via FindLaw]
• Ronald Phillps v. Bradshaw, 2010 U.S. App. LEXIS 11035 (6th Cir. 6/1/2010) "The six claims certified for appeal are: (1) whether Phillips’s conviction for aggravated murder was supported by sufficient evidence; (2) whether the jury’s finding that Phillips raped Sheila on the morning of her death was supported by sufficient evidence; (3) whether the jury’s finding that Phillips intended to kill Sheila was supported by sufficient evidence; (4) whether members of the jury were inflamed by the statements of a grand juror; (5) whether the trial court improperly instructed the jury outside the presence of Phillips and his counsel; and (6) whether trial counsel rendered ineffective assistance during the mitigation phase."
• Nicholas Cody Tate v. State, 2010 Ga. LEXIS 416 (Ga 6/1/2010) "Defendant's two death sentences for the murder of a mother and her daughter were supported by evidence of several aggravating circumstances, including his molestation of the daughter, his kidnapping of the victims under former O.C.G.A. § 16-5-40, and his directing his younger brother to kill the daughter under O.C.G.A. § 17-10-30(b)(6)." [via LexisOne]
• Donald Lenneth Banks v. State,2010 Fla. LEXIS 855 (FL 6/3/2010) "Defendant's conviction for first-degree murder and sentence of death are affirmed as none of defendant's claims, including claims that the trial court erred in denying a cause challenge to a prospective juror and in allowing the state to strike two African-American prospective jurors, warrant relief. " [via FindLaw]
• Lionel Michael Miller v. State, 2010 Fla. LEXIS 854 (FL 6/3/2010) "Defendant's convictions for first degree murder, attempted first-degree murder, burglary and attempted robbery and a death sentence are affirmed in its entirety as, inter alia: 1) the trial court did not abuse its discretion in excusing a prospective juror for cause; 2) the trial court did not err when it instructed the jury that it could consider the avoid arrest aggravating circumstance; 3) the trial court properly denied a motion to suppress because defendant was fully informed of his right to have counsel appointed; and 4) defendant's claim that Apprendi requires that a unanimous twelve-person jury make the findings of fact to determine eligibility for the death penalty is rejected." [via FindLaw]
• Bobby O’Lee Phillips v. State, 2010 Ala. Crim. App. LEXIS 41 (Ala Crim App 5/28/2010) Relief denied on numerous grounds including (1) challenges to the constitutionality of the Alabama capital sentencing scheme; (2) State improperly split the single crime of escape into multiple counts in the indictment; (3) denial of motion to depose the State's expert witnesses; (4) refusing to continue the trial pending completion of accomplice's trial transcript; (5) denial of pretrial "Motion to Require Disclosure of Any and All Information Concerning Prospective Jurors that May Be Favorable to the Defense;" (6) failure to remove for cause if certain veniremembers; (7) change of venue; (8) suppression of inculpatory statement; (9) video of roadside arrests destroying the presumption of innocence; (10) admission of certain evidence; (11) comment on silence; and (12) denial of an evidentiary hearing for a new trial.
• Robert L. Leach v. State, 2010 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. 6/4/2010) Relief denied on postconviction on claims including: ineffective assistance of counsel (a grab bag of claims too numerous to readily list); "trial court's jury instructions on the aggravating circumstances are unconstitutional because the jury was not required to make a unanimous finding about which of the elements of the aggravating circumstances they agreed upon;""trial court's jury instructions on the aggravating circumstances are unconstitutional because the jury was not required to make a unanimous finding about which of the elements of the aggravating circumstances they agreed upon;" lethal injection, challenges to statute constitutionality, trial court improperly cut short his guilt phase testimony.

Week of May 30, 2010: noncapital(initial list)

• Ambrose Harris v.Ricci, 2010 U.S. App. LEXIS 11251 (3rd Cir 6/3/2010) In this former capital case, panel holds that change of venue, even if it would have been required under the federal rules, was not a constitutional violation on these facts.

If you have problem with this edition it is available athttp://capitaldefenseweekly.com/archives/100621htmfor printing. Almost all cases can be found by going toLexisone.comand typing in the appropriate lexis cite OR going toGoogle Scholarand typing in the name of the condemned. We'd simply ask that before printing consider our environment and saving our trees. If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. As always, thanks for reading, and special thanks go to Steve Hall whoseStand Downwebsite is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named.