Leading off in this abbreviated edition is a case missed last week,Blaine Ross v. State,from the Florida Supreme Court. InRossthe Court holds that the "the police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required byMiranda v. Arizonaobtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda. In accordance with our precedent and the precedent of the United States Supreme Court, we conclude that under the totality of the circumstances, the waiver of the defendant‘s rights against self-incrimination was not voluntary, knowing, and intelligent, and the statements were not voluntarily given."

In the news, the,DPIC notesthat "a recent study published by theEqual Justice Initiative. . . . shows that the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South." In Ohio, the Governor commuted Richard Nields sentence to life without parole.ThePennsylvania State Government Management and Cost Study Commission is examining the costs of the death penalty in Pennsylvania in these recessionary times. In Oklahoma abill to allow flexibility in lethal injection protocolshas been sent to the governor.

Pending Executions

June

9 Melbert Ford* (GA)

10 John Forrest Parker* (Ala)

15 David Lee Powell* (Tex)

17 Jeffrey Matthews* (Okla)

18 Ronnie Gardner* (Utah) (firing squad)

30 Jonathan Green* (Tex)

July

1 Michael Perry* (Tex)

13 William Garner* (Ohio)

20 Derrick Jackson* (Tex)

Stays/Clemency

May

4 Stacey Eugene Johnson* (Ark)

19 Marlon Duane Kiser* (Tenn)

20 Richard Lee Tabler*(Texas)

June

10 Richard Nields* (Ohio)

Executions

May

12 Kevin Varga (Texas)

13 Michael Beuke (Ohio)

13 Billy Galloway (Texas)

19 Rogello Cannady (Tex)

19 Paule Everette Woodward (Miss)

20 Darick Walker (VA)

20 Gerald James Holland (Miss)

25 John Alba* (Tex)

27 Thomas Whsenhant* (Ala)

June

2 George Jones* (Tex)

*denotes a "serious" execution date

SCOTUS

• 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 under Miranda.
• 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.
• Jefferson v. Upton, No. 09-8852 (5/24/2010) Circuit court impermissibly, in this pre-AEDPA, pretermitted its analysis of the state court's factual determination of Mr. Jefferson IAC claims by analyzing only one of the appropriate exceptions found in 28 U. S. C. §§2254(d)(1)–(8).
• United States v. Marcus, No. 08-1341 (5/24/2010) The circuit court impermissibly water downed the "plain error " standard.
• United States v. O’Brien, No. 08-1569 (5/24/2010) Whether or not a given firearm is a machine gun is an element of 18 U.S.C. § 924(c)(1)(B)(ii) that must be proved to a jury beyond a reasonable doubt as it is an element of the offense and not merely a sentencing factor.
• Robertson v. United States ex rel. Watson, No. 08-6261 (5/24/2010) Dismissed as improvidently granted.

Week of May 30, 2010:In Favor of the Accused or Condemned(initial list)

• 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."

Week of May 30, 2010:In Favor of the Prosecution or Warden(initial list)

• 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. State,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) more next week

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.

Week of May 23, 2010:In Favor of the Accused or Condemned

• Blaine Ross v. State,2010 Fla. LEXIS 853 (FL 5/27/2010) "[T]he police, over a period of several hours of custodial interrogation, deliberately delayed administration of the warnings required by Miranda v. Arizona obtained inculpatory admissions, and when the warnings were finally administered midstream, minimized and downplayed the significance of the warnings and continued the prior interrogation—all of which undermined the effectiveness of Miranda. In accordance with our precedent and the precedent of the United States Supreme Court, we conclude that under the totality of the circumstances, the waiver of the defendant‘s rights against self-incrimination was not voluntary, knowing, and intelligent, and the statements were not voluntarily given."
• Kenneth Glenn Thomas v. Allen, 2010 U.S. App. LEXIS 10836 (11th Cir 5/27/2010) Relief grant onAtkins/MR claim. As FindLaw notes: “the district court’s grant of the petition is affirmed where: 1) there was no Alabama precedent stating that when a capital offender has numerous IQ test scores during the developmental period, and one of those IQ scores is over 70, the court cannot find the offender mentally retarded; 2) petitioner showed, by a preponderance of the evidence, that he had significant subaverage intellectual functioning during the developmental period; and 3) the district court did not clearly err in its determination regarding petitioner’s adaptive behavior during the developmental period. “
• Danny Keith Hooks v. Workman, 2010 U.S. App. LEXIS 10564 (10th Cir 5/25/2010)Allencharge, as given by the trial court, was improper. As FindLaw notes “the denial of petitioner’s habeas petition is affirmed in part as to the murder convictions, but reversed and remanded for a grant of habeas relief on the death sentences where: 1) the Allen charge given by the trial court in the midst of penalty-phase deliberations, when considered in the context of all surrounding circumstances, coerced the jury into returning death sentences; and 2) the Oklahoma Court of Criminal Appeals’ decision to the contrary was an unreasonable application of Lowenfield v. Phelps, 484 U.S. 231 (1988).”
• Comm. v. Wayne Smith,2010 Pa. LEXIS 1142 (Penn 5/27/2010) (dissent) Penalty phase relief granted where lead trial counsel “myopically” focused on penalty phase, failed to provide meaningful direction to the mitigation team members, and, resultingly, missed low hanging mitigation evidence. “Given the evidence presented at the PCRA hearing, we cannot conclude [trial counsel's] investigation met his responsibility underStrickland, as further explained inWilliamsandWiggins, to pursue all reasonable avenues for developing mitigation evidence. His narrow focus on cocaine-induced psychosis as the key to the guilt phase, coupled with his disregard for other forms of mental health mitigating evidence which would have been useful at the penalty phase, cannot be said to have been a reasonable strategy. Counsel cannot meet his obligation by relying on “only rudimentary knowledge of [the defendant's] history from a narrow set of sources,” which is exactly what [trial counsel] did. Furthermore, we cannot say that, had such mental health mitigating evidence been presented, the jury would still have arrived at a death verdict. This is the type of case described byBobbyas one where “potentially powerful mitigating evidence … would have been apparent from documents any reasonable attorney would have obtained ….” Accordingly, appellant was prejudiced by trial counsel’s inadequate investigation, and remand for a new penalty phase is required. ” Dissent limited to guilt phase issues.

Week of May 23, 2010:In Favor of the Prosecution or Warden(initial list)

• Zachariah Scot Marcyniuk v. State, 2010 Ark. 257 (Ark 5/27/2010) Relief denied on claims including: sufficiency, trial court ” abused its discretion by allowing the State to enlarge and publish to the jury seventeen photographs of the victim’s body taken at the crime scene and during the autopsy;” admission of allegedly unMirandaized custodial statements, and statutory review
• People v. Scott Forrest Collins, 2010 Cal. LEXIS 5032 (Cal 5/27/2010) “Defendant’s conviction and death sentence for first degree murder, robbery and kidnapping, is affirmed on automatic appeal over claims of error including: 1) trial court’s denial of defendant’s motion for a mistrial; 2) asserted Doyle error; 3) prosecutorial misconduct; 4) sufficiency of the evidence of unadjudicated criminal activity; 5) jury instructions; and 6) cumulative error.”
• People v. James Alvin Thompson, 2010 Cal. LEXIS 4884 (Cal 5/24/2010) “Defendant’s conviction and death sentence for first degree murder is affirmed on automatic appeal over claims of error regarding: 1) the exclusions of prospective jurors for cause based on their questionnaires; 2) Batson/Wheeler challenges; 3) a denial of a motion to suppress two duffel bags and a jacket police found when they searched his mother’s car; 4) sufficiency of the evidence; 5) prosecutorial misconduct; 6) ineffective assistance of counsel; 7) challenges to the finding on the robbery-murder special-circumstance allegation; 8) various evidentiary rulings; 9) cumulative errors; 10) discharge of appointed counsel and defendant’s self-representation; 11) miscellaneous challenges to the penalty phase statute; 12) discharge of a juror at the penalty phase; 13) a denial of a motion for a new trial; 14) denial of an automatic motion to modify the sentence; 15) whether the sentence was grossly disproportionate to defendant’s individual culpability; and 16) miscellaneous challenges to the death penalty.”
• Kenneth Allen Stewart v. State, 2010 Fla. LEXIS 803 (Fl 5/27/2010) Relief denied on claims “that trial counsel provided ineffective assistance by failing to (A) discover and present evidence of organic brain damage; (B) investigate and present mitigating evidence concerning Stewart’s childhood and family; and (C) object to the cross-examination of defense penalty-phase witness Marjorie Sawyer.”
• Comm v. Albrecht., No. 580 CAP (Penn 5/27/2010) Pro se “serial” petition dismissed as time-barred.

Week of May 23, 2010: noncapital(initial list)

• Lewis Rodney Gagne v. Booker, 2010 U.S. App. LEXIS 10582 (6th Cir. 5/25/2010) A split decision from the Sixth with exceptionally strong language on the right to present a defense, the right to cross-examination and rape shield. {track for cert/en banc}
• Khosrow Parmaei v. Jackson, 2010 U.S. App. LEXIS 10386 (4th Cir5/21/2010) Granting equitable tolling in light of administrative error by the federal courts.

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