This edition leads off withEric Lynn Moore v Quartermanfrom the Fifth Circuit sitting en banc. Turning it over to the experts at theHabeas Assistance and Training Counselproject, the Moore Court held that:

Moore’s Atkins claim could be considered by the federal court and without application of § 2254(d). Moore v. Quarterman. Moore had filed a successive state habeas petition shortly after the Atkins case was decided. The Texas Court of Criminal Appeals (TCCA) rejected the petition under its abuse of the writ rule. Moore then received authorization from the Fifth Circuit to file a successor federal habeas petition raising the Atkins claim. Following an evidentiary hearing, the district court found that Moore had proved his mental retardation and granted the writ. On appeal, a divided panel concluded that Moore’s claim was unexhausted in that it had not been fairly presented to the state court. Because federal review was therefore precluded, the panel majority did not address the merits of the claim. The en banc court observed that the question of whether or not Moore had exhausted his claim was subject to reasonable debate. It concluded, however, that it did not need to resolve the exhaustion question because, under the unique circumstances of this case, there was cause for Moore’s default and prejudice in the absence of federal review. The court explained: “Moore had cause for misunderstanding the state’s successive writ procedures because, when he filed his Atkins petition on December 26, 2002, the TCCA had published no opinion explaining the factual criteria that must be pled in an Atkins petition, nor had such criteria become evident in practice, arising from the unpublished disposition of similar petitions. . . . Moreover, Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule, yet only a few months had passed before Moore filed his petition, and the State had not taken any definitive action. Moore could not exhaust a remedy that the TCCA had not yet articulated; this ‘cause’ was external to Moore and beyond his control. Further, Moore would plainly suffer prejudice from being unable to establish the facts involved in his mental retardation claim. Moore’s mass of evidence, taken at face value, presented a substantial Atkins claim.” Given the showing of cause and prejudice, the district court had authority to review the claim, even if it was unexhausted, “and was under no obligation to defer to the state court’s decision.” The case was returned to the three-judge panel to review the district court’s finding of mental retardation under the clear error standard.

[via CDN Week - at - Glance]

Elsewhere, the Texas Court Criminal Appeals granted a new trial inEx parte Michael Blairas DNA strongly suggests Blair did not commit the murder for which he now sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released.he Fourth Circuit inRobert Gray, Jr. v. Brankergrants relief holding that “counsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue. The Ninth Circuit inHenry Earl Duncan v. Ornoskgrants relief on the failures of counsel in investigating at the special circumstance phase of the trial. Finally, the Nevada Supreme Court grants a writ of mandamus inEugene Hollis Nunnery v. Eighth Judicial District Courtas conspiracy to commit robbery is not an aggravating circumstance under that state's capital sentencing scheme.

North Carolina death row inmate Guy Tobias LeGrande has been found incompetent to be executed under both state law and the 8th Amendment of the United States Constitution, as interpreted byFord v. WainwrightandPanetti v. Quarterman.More to follow. The decision ishereand a press release ishere. [Thanks toDWNC]

In the news, the UN Special Rapporteur has released a report on the United States & the death penalty human rights report singling outTexas and Alabama. TheCalifornia Commission on the Fair Administration of Justicehas issued itsfinal report and recommendationson that state's use of the death penalty.Lester Bower's scheduled execution has been stayed,as the Fort Worth Star-Telegram reported, "Witness says condemned Arlington man isn't responsible for 1983 slayings. Killing States: Lethal Decision/Final Judgments, is the latest issue ofSouth Atlantic Quarterlyfrom Duke University. Scientific American reports, "Who Will Die? Computer Predicts Which Death Row Inmates Will Be Executed." Dallas County hasanother noncapital exoneration.Paul Househas been freed on bail in Tennessee. In North Carolina last weekmore than 300 clergy members signed onto a lettersent to lawmakers urging the passage of theNorth Carolina Racial Justice Act, a bill giving capital murder defendants the right to challenge prosecutions on grounds of racial bias; the bill passed in the North Carolina House in 2007.

Looking ahead, the Fifth Circuit inMichael Wayne Hall v. Quarterman, No. 06-70041 (5th Cir 6/30/2008) Panel rips in to the CCA on the failure to hold a live evidentiary hearing on Hall’s Atkins claim. The Georgia Supreme Court inMark Hall v. McPherson, gives a how to lesson for ineffective assistance of counsel claims, including use of both American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and the Southern Center for Human Rights Defense Manual in evaluating counsel’s performance. Finally, the Ohio Court of Appeals (Seventh District) inState v. Terrance Tateaffirms the grant of a motion to suppress as the defendant was in custody, at a police station, was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking.

In last week’s edition Dale Leo Bishop was listed as having an execution date prior to the date actually being set. Mr. Bishop is scheduled for execution on July 23. Since Baze the data we use for the reporting of execution dates has been less than satisfactory, hopefully by the end of summer the quality of our sources will be back to their pre-Baze levels of accuracy.

Special thanks go out to Steve Hall & Stand Down Texas, from whom the majority of this week's news update is taken.

Pending Executions

July

10 Carlton Turner - Tex.* (Note: conflicting press accounts as to a stay)

10 Kent Jackson - Va*

14 Eric Hanson - Ill (s)

14 Tamir Hamilton - Nev (s)

22 Kevin Young; - Okla*

23 Dale Leo Bishop - Miss*

23 Derrick Sonnier - Tex.*

24 Christopher Emmett Va*

28 Gregory Decay - Ark.(s)

30 John Middleton - Mo.*

31 Larry Davis - Tex.*

31 Tommy Arthur - Ala*

August

5 Jose Medellin - Tex.*

7 Heliberto Chi - Tex.*

12 Leon Dorsey - Tex.*

14 Michael Rodriguez Tx* (v)

20 Denard Manns - Tex.*

21 Jeff Wood -Tex.*

September

9 Gregory Wright -Tex.*

9 Frankie Williams, Jr., - Ark*

10 Charles Hood - Tex.*

17 William Murray -Tex.*

18 Joseph Ries -Tex.*

25 Jessie Cummings - Okla*

Recent Executions

June

17 Terry Lyn Short - Okla

20 James Earl Reed - S.C.

25 Robert Yarbrough - Va

July

1 Mark Schwab - Fl.

Notable Stays

July

22 Lester Bower - Tex.*

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

Week of June 23, 2008 – In Favor of the Defendant or the Condemned

• Eric Lynn Moore v Quarterman, No. 05-70038 (5th Cir 6/26/2008)(en banc) Matter returned to three judge panel on issue of Atkins bar to executing the mentally retarded.
• Robert Gray, Jr. v. Branker, No. 06-29 (4th Cir 6/25/2008) “[C]ounsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue."
• Henry Earl Duncan v. Ornoski, 2008 U.S. App. LEXIS 13308 & 13677 (9th Cir 6/24/2008) As one could predict with an opinion that begins “[o]nce again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel.”
• Eugene Hollis Nunnery v. Eighth Judicial District Court, 2008 Nev. LEXIS 52 (Nev 6/25/2008) "[P]etition for mandamus granted in part. Conspiracy to commit robbery is not an aggravating circumstance." [via Harmful Error]
• Ex parte Michael Nawee Blair, 2008 Tex. Crim. App. Unpub. LEXIS 469 (Tex. Crim. App. 6/25/2008) (unpublished) The Texas Court Criminal Appeals granted a new trial as DNA strongly suggests Blair did not commit the murder for which he know sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released.

Week of June 23, 2008 – In Favor of the State or Government

• United States v. Donald Fell, 2008 U.S. App. LEXIS 13831 (2nd Cir 6/27/2008) "In this appeal, Fell challenges his sentence on a number of grounds falling roughly into four categories: errors in jury selection, errors in the admission of certain evidence, prejudicial comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty." Notably, use of Mr. Fell's satanic beliefs held to be harmless error. This case is very likely to go en banc as it is the first affirmed federal death sentence in over forty years in this circuit.
• Darrell Eugene Strickland v. Branker, 2008 U.S. App. LEXIS 13439 (4th Cir 6/25/2008) (unpublished) "We granted a certificate of appealability with respect to the district court's determinations (1) that Strickland was not entitled to relief on the merits of a claim under Brady v. Maryland, and (2) that Strickland had defaulted a portion of his claim that he was denied the effective assistance of counsel during the sentencing phase of his case. Because we conclude that Strickland has not established the materiality necessary for his Brady claim nor the prejudice necessary for his ineffective assistance claim, w e affirm the district court's denial of relief."
• Cal Brown v. Lambert, 2008 U.S. App. LEXIS 13575 (9th Cir 6/27/2008) "In a death penalty case on remand from the Supreme Court, denial of habeas relief is affirmed where: 1) the district court properly ruled that the Washington death penalty statute is facially valid; 2) the jury selection for petitioner's trial was constitutional; 3) petitioner's counsel weren't objectively deficient, as they made reasonable strategic decisions by not calling a psychiatrist, not calling a licensed professional counselor and not cross-examining a psychiatrist; and 4) there was no abuse of discretion in excluding death penalty trial reports." [via Find Law]
• Mark Brown v. Bradshaw, 2008 U.S. App. LEXIS 13460 (9th Cir 6/27/2008) In a prosecution for aggravated murder, denial of defendant's motion for a writ of habeas corpus is affirmed over claims of error regarding alleged violations of federal law when the trial court gave a Howard instruction during the penalty phase and conducted a post-verdict polling that allegedly coerced the jurors to agree to recommend the death sentence." [via Find Law]
• In re: Mark Dean Schwab, 2008 U.S. App. LEXIS 13566 (11th Cir 6/27/2008) "Prisoner's application for permission to file second or successive habeas corpus petition under 28 U.S.C.S. § 2244(b)(2)(B) was denied because sources of evidence supporting factual predicate of prisoner's claim, i.e., that a State expert witness had changed his opinion, were fully available to the prisoner when he filed his first habeas petition.l" [via Lexisone.com]
• People v. Terrance Charles Page, 2008 Cal. LEXIS 7698 (Cal 6/26/2008) On automatic appeal from a death sentence for first degree murder and for the commission of a lewd act upon a child under the age of 14 years, judgment is affirmed over claims of error regarding: 1) exclusion of asserted exculpatory evidence; 2) admission of certain pornographic magazines; 3) admission of "off-color" remarks concerning defendant; 4) instruction on consciousness of guilt (CALJIC No. 2.03); 5) cumulative error and prejudice; 5) claims related to the penalty phase; 6) asserted juror misconduct; and 7) general challenges to California's death penalty scheme. [via Find Law]
• Mark Dean Schwab v. State, 2008 Fla. LEXIS 1113 (Fl 6/27/2008) "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. Schwab has not demonstrated that the Florida protocol is not substantially similar to the one approved by the United States Supreme Court or that this protocol creates a demonstrated risk of severe pain."
• Richard W. Rhodes v. State, No. SC04-31(Fl 6/27/2008) Revised opinion without (from all appearances) much (if any) meaningful change in the opinion.
• Jeremy Alan Williams v. State, 2008 Okla. Crim. App. LEXIS 18 (Okla Crim App 6/25/2008) Relief denied on claims including: (a) "trial court erred when it failed to remove two jurors for cause" (experience with crime) (b) "trial court erred when it allowed the State to introduce evidence of the prior robbery;" (c) " evidence concerning the amount of money in his pocket during the traffic stop after the robbery was the product of an illegal search, thus inadmissible;" (d) "the prosecutor exceeded the scope of cross-examination during the re-direct questioning of Dyra Malone;" (e) "highly prejudicial evidence, which was not relevant to any issue, was improperly introduced during trial;" (f) "trial court erred in permitting a police officer to give expert testimony for which he was not qualified to give;" (g) sufficiency;(h) victim impact evidence was improperly admitted (statements exceeded the scope of allowable victim impact evidence &failure to give the uniform instruction on victim impact testimony);(i) "instructions defining mitigating evidence were insufficient;" (j) "Oklahoma's "continuing threat" aggravating circumstance is unconstitutional;" (k) state's closing arguments; (l) IAC (failing to object or preserve the record, making certain concessions during second stage closing argument, & failing to object to the prosecutor's arguments during trial); and (m) cumulative error.
• State v. Allen Gary Zweigart, Sr., 2008 Ore. LEXIS 433 (Ore 6/26/2008) (dissent) Relief denied on whether: "(1) In finding defendant guilty of aggravated murder by hire, did the jury necessarily determine that Fortier shot the victim? (2) In finding defendant guilty of personally committing aggravated felony murder, did the jury necessarily determine that defendant shot the victim? (3) Were the jury verdicts inconsistent and was the jury unanimous respecting the material facts supporting those verdicts?"
• Ronnie Joe Neal v. State, 2008 Tex. Crim. App. LEXIS 754 (Tex. Crim. App. 6/18/2008)Evidence was sufficient to support defendant's capital murder conviction under Tex. Penal Code Ann. § 19.03(a)(2) because it included defendant's own admissions and that of his accomplice that defendant raped and murdered the victim and fingerprint and DNA evidence implicating defendant.
• Ex parte Joseph Roland Lave, Jr., 2008 Tex. Crim. App. LEXIS 758 (Tex. Crim. App. 6/25/2008) On remand from the Supreme Court, "we adhere to our retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to cases on collateral review in Texas state courts. We again dismiss this subsequent application for writ of habeas corpus. . .."
• State v. Andre Williams, 2008 Ohio App. LEXIS 2804 (Ohio 11th App 6/27/200) Split court denial on the issue of mental retardation without an evidentiary hearing.
• Jamie Ray Mills v. State, 2008 Ala. Crim. App. LEXIS 117 (Ala. Crim. App. 6/27/2008) "[W]e remand this case with instructions that the trial court amend its sentencing order to comply with the requirements of §13A-5-47(d), Ala. Code 1975, and to correct the above-referenced errors. If necessary, the trial court may reweigh the aggravating circumstances and the mitigating circumstances and resentence the appellant. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion." Note relief also denied on numerous other claims.
• Tyrone Chalmers v. State, 2008 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. 6/25/2008) The Tennessee Court of Criminal appeals denies relief on ineffective assistance of counsel claims relating to trial counsel "by breaching acceptable standards for capital representation in that: 1. Counsel was not qualified to handle a capital case; 2. Counsel failed to develop a theory of defense; 3. Counsel failed to expose biases prejudicial to the petitioner during voir dire; 4. Counsel failed to adequately pursue the suppression motion; 5. Counsel failed to use available resources; 6. Counsel delivered inadequate opening and closing arguments; and 7. Counsel failed to adequately cross-examine the State’s witnesses." In the penalty phase "1. Counsel failed to request certain jury instructions; 2. Counsel failed to object to testimony regarding the Hunter offense; 3. Counsel failed to object to State’s closing argument regarding the Hunter offense; and 4. Counsel failed to properly investigate and prepare mitigation evidence."
• State v. Clarence Roberts, 2008 Ohio 3115; 2008 Ohio App. LEXIS 2630 (Ohio 5th App Div 6/24/2008) Relief denied relating to failure "to assure appellant a full & complete disclosure of records and documents of this criminal case" and failure to order production of certain prosecutorial records.

Week of June 23, 2008 – Noncapital of Note

• Jason Earl Wooley v. State, NO. PD-0861-07 (Tex. Crim App 6/25/2008) "Defendant's due-process rights were violated when the court of appeals affirmed his conviction under the unsubmitted theory that he aided "another" to murder the victim because the charge incorrectly applied the law of parties by authorizing defendant's conviction as a party upon a finding that defendant aided only "another" in causing the death."

(Initial List)Week of June 30, 2008 – In Favor of the Defendant or the Condemned

• Michael Wayne Hall v. Quarterman, No. 06-70041 (5th Cir 6/30/2008) Remand for a live evidentiary hearing ordered on Hall’sAtkinsclaim.
• Mark Hall v. McPherson, 2008 Ga. LEXIS 551 (Ga 6/30/2008) "The testimony elicited at trial regarding McPherson's upbringing, in contrast to that presented at the habeas evidentiary hearing, not only failed to inform the jury of the extent and scope of the childhood abuse and neglect McPherson endured and of his childhood exposure to alcohol and drug-abusing adults, but the trial testimony portrayed McPherson's mother as a long-suffering, hard-working, devoted mother to her sons who had done everything she could to keep McPherson away from drugs. The jury never heard that when McPherson was growing up, his mother was a violent alcoholic who chased him away from his home for days at a time and who often beat him, leaving him badly bruised, and that he spent much of his youth in foster homes or institutionalized." Further, "No reasonable lawyer in counsel’s position would have decided not to seek McPherson’s drug treatment records, particularly his Charter Peachford records.Trial counsel’s investigation also was not reasonable in light of the guidelines set forth by the American Bar Association, which provide that counsel at every stage of a capital case “have a continuing duty to investigate issues bearing upon penalty and to seek information that supports mitigation or rebuts the prosecution’s case in aggravation.” As counsel had no rational strategy or reason for failing to develop this mitigating evidence, their performance fell below an objective standard of reasonableness.
• State v. Terrance Tate, 2008 Ohio App. LEXIS 2712 (Ohio 7th App 6/26/2008) (dissent) "The motion to suppress was properly granted because defendant was in custody when he was questioned about the child’s fatal injuries. The interrogation took place at the police station, defendant was a suspect and was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking. " [via Lexisone]

(Initial List) Week of June 30, 2008 – In Favor of the State or Government

• Johnny Wayne Hyde v. Branker, 2008 U.S. App. LEXIS 13778 (4th Cir 6/30/2008) (unpublished) Relief denied on claims that "(a) the state court erred in denying his motion to suppress a confession that he made to police officers during a custodial interrogation;" (b) "the Supreme Court of North Carolina erred in finding that the state trial court did not violate his constitutional rights when it excused several prospective jurors during consideration of hardship requests"; (c) "the state appellate court also violated or unreasonably applied Supreme Court precedent in rejecting his claim that the trial court impermissibly restricted defense questions during voir dire;" (d) "state court violated clearly established Supreme Court precedent in rejecting his contention that insufficient evidence supported the jury finding as to one of the aggravating circumstances -- that the murder was committed for the purrpose of avoiding arrest;" (e) "the trial court erred by failing to intervene ex mero motu when the prosecutor made an allegedly improper closing argument that asked the jury to consider an aggravating factor not recognized under North Carolina law;" (f ) " the jury instructions allowed the jury to accord no weight at all to statutory mitigating circumstances and that, as a result, his sentence was unconstitutionally arbitrary;" and (g) "trial counsel was constitutionally ineffective in failing to present a voluntary intoxication defense at the guilt phase of the trial and in failing to prepare expert witnesses regarding intoxication at the sentencing phase."
• William Mark Mize v. Hall, 2008 U.S. App. LEXIS 14002 (11th Cir 7/2/2008) Relief denied on appeal relating to claims whether: (a) a "prosecutorial misconduct claim was procedurally defaulted"; (b) "the prosecution violated Brady v. Maryland by failing to turn over six pages of notes from a pretrial interview;" and (c) " Mize asserted an actual innocence claim, relying on statements made by Chris Hattrup in his plea colloquy, at Mize's motion for new trial hearing, and in two affidavits."
• Daniel Jon Peterka v. McNeil, 2008 U.S. App. LEXIS 14001 (11th Cir 7/2/2008) Relief denied. "Peterka argues that his penalty-phase counsel were ineffective for failing to investigate and present three types of potentially mitigating evidence: (1) evidence concerning Peterka's military record; (2) evidence concerning Peterka's good prison behavior, including his failure to take advantage of an escape by his cellmates; and (3) evidence in the nature of his family relationships and good character. For the reasons explained below, we affirm the district court's denial of Peterka's petition."
• Ex parte Darryl Dewayne Turner; 2008 Ala. LEXIS 128 (Ala 6/27/2008) Turner "petitions this Court for the writ of mandamus directing the Court of Criminal Appeals to vacate its June 29, 2007, order in which it instructed Judge James W. Woodruff, Jr., to set aside his order granting discovery of certain institutional files and prosecution records. We conclude that Turner has not demonstrated a clear legal right to the relief sought; therefore, we deny the petition."
• People v. Michael McCrea Whisenhunt,2008 Cal. LEXIS 7900 (Cal 6/30/2008) "In an automatic appeal, a conviction for first degree murder and death sentence is affirmed over claims of error regarding: 1) denial of defendant's request to show prospective jurors photographs of the victim's injuries during voir dire; 2) excusing a juror based on her views concerning the death penalty; 3) sufficiency of the evidence to support the first degree murder conviction and torture special-circumstances finding; 4) admission of evidence of prior acts of child abuse; 5) a refusal to permit the defense to present evidence impeaching a prosecution witness; 6) admission of evidence of victim's prior injuries; 7) cross-examination of defendant on past acts of child abuse; 8) admission of photographs of the victim; 9) refusal to instruct on the offense of being an accessory after the fact to a felony; 10) failure to instruct the jury with CALJIC No. 3.19; 11) failure to instruct on second degree implied malice murder; 12) instruction that motive is not an element of murder by torture; 13) refusal to give additional instruction on premeditation and deliberation; 14) refusal to give additional instruction on lack of motive; 15) unconstitutionality of jury instructions allegedly affecting the beyond a reasonable doubt standard; 16) unconstitutionality of the reasonable doubt instruction; 17) unconstitutionality of the consciousness of guilt instruction; 18) the instruction on first degree murder; 19) failure to instruct on unanimity for the theory of first degree murder; 20) unconstitutionality of CALJIC No. 8.75; 21) unconstitutionality of the prosecution's reference to itself as "the People;" 22) unconstitutionality of the murder by torture and torture special circumstances instructions; 23) the admission of photographs of the victim at the penalty phase; 24) admission of evidence of an unadjudicated crime; 25) refusal of defendant's proposed penalty phase instructions; 26) refusal to instruct on the definition of "life without the possibility of parole;" 27) refusal to instruct on the role of mercy in the penalty determination; 28) refusal to instruct the jury to not rely solely on the facts of the murder verdict and the special circumstances as aggravating factors; 29) various challenges to California's death penalty law; and 30) cumulative error." [via FindLaw]
• People v. Ramon Bojorquez Salcido, 2008 Cal. LEXIS 7901 (Cal 6/30/2008) "In an automatic appeal, a conviction of first and second degree murder, and attempted murder, and a sentence to death are affirmed over claims of error regarding: 1) the seizure of defendant in Mexico by agents of the United States and California governments by allegedly misrepresenting that defendant was a citizen of the U.S., in violation of the extradition treaty between the countries; 2) inadequate Miranda warnings during his return from Mexico; 3) denial of a commission to examine Mexican officials concerning defendant's confession; 4) prosecutions' for-cause challenges of prospective furors; 5) prosecution's peremptory challenges of minority group prospective jurors; 6) peremptory challenges of death penalty skeptics; 7) denial in part of a motion for discovery of personnel files of DEA agent and certain officers; 8) admission of evidence of defendant's molestation of victims; 9) admission of victim-impact evidence at the guilty phase; 10) prosecutorial misconduct; 11) jury instructions; 12) cumulative error; 13) delay in notice that the prosecution intended to offer evidence in aggravation; 14) admission of photographs of a victim; 15) exclusion of mitigation evidence that survivors would receive benefits from defendant's art sales; 16) jury instruction on weighing of factors; 17) cumulative prejudice; 18) failure to give curative instructions; 19) the multiple-murder special circumstance's failure to narrow the class of persons eligible for the death penalty; 21) constitutional vagueness of section 190.3, factor (a); 22) delay in the execution; 23) challenges to the death penalty scheme; and 24) denial of a motion for continuance to enable the defense to review juror questionnaires." [via FindLaw]
• Russell Hudson v. State, 2008 Fla. LEXIS 1217 (Fl 7/3/2008) Relief denied. "[C]laims raised are: (1) error in admission of hearsay testimony of phone call from Peller to Pritchard; (2) error in allowing Gonzalez's out-of-court statement that Hudson stole Peller's gun; (3) error in allowing the State to comment on Hudson's failure to testify against others; (4) error in denying request for special instruction on the HAC aggravator; (5) fundamental error in State's jury argument on HAC; (6) error in allowing Fizzuoglio's testimony that Peller knew he was going to die; (7) error in finding HAC; (8) error in finding CCP; (9) error in weighing of sentencing circumstances; (10) failure of judge to make findings required for the death penalty; and (11) unconstitutionality of the death penalty statute under Ring v. Arizona, or Furman v. Georgia."
• Ricardo Gonzalez v. State, 2008 Fla. LEXIS 1216 (Fl 7/3/2008) "Gonzalez has appealed the denial of postconviction relief to this Court, raising eight issues. He contends (1) trial counsel rendered ineffective assistance during the guilt phase of trial; (2) trial counsel rendered ineffective assistance during the new penalty phase; (3) the circuit court erred in summarily denying Gonzalez's claim that newly discovered evidence of a life sentence imposed on Fernando Fernandez requires that Gonzalez receive a life sentence; (4) the circuit court erred in failing to disclose records allegedly exempt from production under Florida Rule of Criminal Procedure 3.852; (5) the circuit court erred in striking Gonzalez's original postconviction motion without permitting him leave to amend; (6) the application of the new rule 3.851 to Gonzalez violates his rights to due process and equal protection; (7) Florida's capital sentencing procedures violates Gonzalez's Sixth Amendment right to have a unanimous jury return a verdict addressing guilt of all the elements necessary for the crime of first-degree murder, in violation of Ring v. Arizona, 536 U.S. 584 (2002); and (8) his constitutional right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution."
• Roderick Ruffin v. State, 2008 Ga. LEXIS 550 (Ga 6/30/2008) Relief on speedy trial claim denied. "It has now been well over three years since Ruffin was indicted, and the vigor and formality with which he has pressed his constitutional speedy trial claim are no longer subject to challenge. The District Attorney should be aware that any further delay in bringing Ruffin to trial not attributable to Ruffin runs a serious risk of violating Ruffin's right to a speedy trial guaranteed by the Sixth Amendment and the Georgia Constitution. If that were to happen, then under controlling United States Supreme Court precedent, dismissal of the charges against Ruffin would be constitutionally required"
• Schofield v. Andrew Allen Cook, 2008 Ga. LEXIS 545 (Ga 6/30/2008) "We have set out above the instances in which we have found or assumed trial counsel's deficient performance. We conclude, considering the combined effect of those deficiencies, that they did not in reasonable probability affect the outcome of either phase of Cook's trial. Id. Accordingly, we order Cook's death sentence reinstated"
• Ex parte Juan Jose Reynoso, 2008 Tex. Crim. App. LEXIS 821 (Tex Crim App 7/2/2008) "This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In an order delivered on June 27, 2007, dismissing the application as untimely, we set out a detailed account of applicant's repeated attempts to waive his appeals that were interspersed with an occasional desire to pursue those same appeals. Ex parte Reynoso. Given the timing and applicant's repeated claims that he did not want to pursue his appeals, we held that, although his application was filed during an interval in which he chose to pursue his appeals, applicant could not show good cause for the untimely filing. Id. Therefore, we dismissed his application in its entirety and declined to appoint him new counsel under Article 11.071 § 4A. Id. Applicant subsequently filed a suggestion that we reconsider the case on our own initiative as allowed under Texas Rule of Appellate Procedure 79.2(d). Applicant asserted that the Court had not considered the application of Texas Rule of Appellate Procedure 4.1(a) in calculating the date on which applicant's habeas application had been due. We granted rehearing on our own initiative and asked for briefs on the issue. Throughout the scholarly debate that followed, the Court discovered that the issue was much more detailed and complicated than simply asking whether the calculation rule should be applied. We now file and set and issue the following opinion, concluding that there was good cause for applicant's tardy filing, but denying relief on his writ."