Leading off this double edition is the Texas Court of Criminal Appeals opinion inEx Parte Roy Gene Smith.The CCA inSmithgranted relief underPenry.“[T]he trial court was required to provide a constitutionally adequate vehicle for the jury to fully consider and give effect to [the proffered mitigation evidence. The trial court’s failure to do so “[went] to the very basis of the case” and “vitally affected [the applicant’s] defensive theory” at the punishment phase, because the jury had no adequate means to act upon the applicant’s mitigation theory, such as it was.”The CCA found similarly, in granting relief, in its unpublished decisionEx parte David Lee Lewis.

In the news,the American Board of Anesthesiologists' decidedto sanction members who participate in lethal injection executions. Aworldwide shortage of thiopental sodium, an anesthetic used in lethal injections, is beginning to put executions around the country in jeopardy.California moveda step closer to resuming executionsrecently when corrections officials announced new lethal injection procedures, beating a May 1 deadline by one day.In Mississippi16 death row have filed suit,DPIC notes"claiming that their executions should be halted because their state-appointed attorneys were 'untrained, inexperienced, and overwhelmed'."Local media notesthat in North Carolina, new death sentences are down over 90% in the last 15 years with no executions in almost four years.

As to nominee Elena Kagan's views on the death penalty little is known. Her most revaling answers on the topic, given in response towritten questions propounded by Senator Specterduring her confirmation proceedings for Solicitor General, provide little clues:

I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional. As Solicitor General, I would represent the interests of the United States, as expressed in legislation and executive policy. Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area.

In regards toKennedy v. Louisianashe noted:

I do not think it comports with the responsibilities and role of the Solicitor General for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions. The Solicitor General must show respect for the Court’s precedents and for the general principle of stare decisis. If I am confirmed as Solicitor General, I could not frequently or lightly ask the Court to reverse one of its precedents, and I certainly could not do so because I thought the case wrongly decided. There are circumstances, however, in which the Solicitor General properly can petition the Court to reconsider a decision. Relevant to this inquiry are whether a rule of law has been found unworkable, whether subsequent legal developments have left the rule an anachronism, or whether premises of fact are so far different from those initially assumed as to render the rule irrelevant or unjustifiable. The last of these factors would seem the one most potentially relevant to the Kennedy v. Louisiana decision. But I currently do not know enough about this decision or the facts and circumstances surrounding it to say whether I would ask the Court to reconsider it if I were confirmed as Solicitor General; nor would I make this determination without going through the extensive process that the Solicitor General’s office typically uses in such cases.

As usually happens, this week's edition includes substantial borrowings fromSteve Hall's Stand Down blog.

Pending 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)

24 Jack Harold Jones, Jr.* (Ark)

25 John Alba* (Texas)

27 Thomas Whsenhant* (Ala)

June

2 George Jones* (Tex)

10 John Forrest Parker* (Ala)

10 Richard Nields* (Ohio)

15 David Lee Powell* (Tex)

17 Jeffrey Matthews* (Okla)

18 Ronnie Gardner* (Utah)

30 Jonathan Green* (Tex)

Stays

May

4 Stacey Eugene Johnson* (Ark)

19 Marlon Duane Kiser* (Tenn)

20 Richard Lee Tabler*(Texas)

Executions

April

20 Daryl Durr* (Ohio)

22 William Berkley* (Texas)

27 Samuel Bustamante* (Texas)

SCOTUS

• Renico v. Lett, No. 09–338 (5/3/2010) "In a murder prosecution, a grant of petitioner's habeas petition is reversed where it was reasonable for the Michigan Supreme Court to determine that the trial judge had exercised sound discretion in declaring a mistrial, and thus the state court's decision was not an unreasonable application of clearly established federal law under a proper application of the AEDPA's deferential standard of review." [via FindLaw]

Week of May 2, 2010:In Favor of the Accused or Condemned(initial list)

• Alan Lyndell Wade v. State, 2010 Fla. LEXIS 687 (FL 5/6/2010) "None of a prosecutor's statements during the guilt-phase or penalty-phase closing arguments were improper or misleading as they did not, individually or cumulatively, amount to fundamental error." [via Lexisone]
• Manuel Antonio Rodriguez v. State, 2010 Fla. LEXIS 685 (FL 5/6/2010) "The denial of [ ] petition for postconviction relief was proper because, although letters that a jail inmate wrote to the prosecutor should have been disclosed, the inmate failed to establish any prejudice. The jury was aware that the brother of the inmate's girlfriend had entered a plea in order to avoid the death penalty." [via Lexisone]

Week of May 2, 2010:noncapital (initial list)

• Hurrell-Harring v. N.Y., No. 66 (NY 5/6/2010) "In an action by defendants in various criminal prosecutions ongoing at the time of the action's commencement in various counties, contending that New York's statutory arrangement of leaving the task of providing free counsel in criminal matters to local government deprived plaintiffs and other similarly situated indigent persons of constitutionally and statutorily guaranteed representational rights, the appellate division's order dismissing the action is reversed where 1) the complaint contained allegations that in specific cases counsel simply was not provided at critical stages of the proceedings, thus stating a claim under Gideon; and 2) collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel could not be understood to be incompatible with Strickland." [via FindLaw]

Week of April 26, 2010:In Favor of the Accused or Condemned

• Ex Parte Roy Gene Smith, 2010 Tex. Crim. App. LEXIS 534 (Tex. Crim. App. 4/28/2010)Penrygrant.“[T]he trial court was required to provide a constitutionally adequate vehicle for the jury to fully consider and give effect to [the proffered mitigation evidence. The trial court’s failure to do so “[went] to the very basis of the case” and “vitally affected [the applicant’s] defensive theory” at the punishment phase, because the jury had no adequate means to act upon the applicant’s mitigation theory, such as it was.”
• Ex parte David Lee Lewis, NO. AP-76,334 (Tex. Crim. App. 4/28/2010) (unpublished)Penrygrant.“The nullification instruction given to applicant’s jury was not a sufficient vehicle to allow jurors to give meaningful effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant’s trial is the type of evidence for which he was entitled to a separate vehicle for consideration, we remand the case to the trial court for a new punishment hearing.”
• Ex parte Harrison, 2010 Ala. LEXIS 69 (Ala 4/23/2010) “[W]e conclude that Harrison’s claims in his Rule 32 petition that two jurors failed to answer accurately questions posed to them during the voir dire examination are not precluded. We therefore reverse the judgment of the Court of Criminal Appeals and remand this case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Harrison’s juror-misconduct claims and a determination as to whether Harrison is entitled to a new trial.”

Week of April 26, 2010:In Favor of the State or Government

• Thomas Douglas Arthur v. State, 2010 Ala. Crim. App. LEXIS 31 (Ala Crim App 4/30/2010) Relief denied on questions relating to DNA testing & the destruction of certain biological evidence by the State.Mr. Arthur's execuion was originally stayed to permit DNA testing & is likely to be further reviewed by the Alabama Supreme Court in light of the trial court's narrow reading of the remand in this matter.
• Tierra Capri Gobble v. State, 2010 Ala. Crim. App. LEXIS 34 (Ala Crim App 4/30/2010) On return from remand and technical correction of sentencing order, death sentence affirmed.
• In re Bruce Webster, 2010 U.S. App. LEXIS 8773 (5th Cir 4/28/2010) Even if a person could prove they were categorically barred from receiving a death sentence the AEDPA nonetheless permits their execution if the allegation is not made during a first habeas petition. “In petitioner’s motion for an order authorizing the district court to consider a successive motion to vacate his federal death sentence, the motion is denied where there was no reason to believe that Congress intended the language “guilty of the offense” in 28 U.S.C. section 2255 to mean “eligible for a death sentence.”[via FindLaw]See prior coverage here.
• United States v. Larry Lujan, 2010 U.S. App. LEXIS 8893 (10th Cir 4/29/2010) Reversing “the district court’s order excluding evidence that defendant had been responsible for prior murders.The court of appeals reversed on the grounds that 1) the federal government sought to introduce evidence that defendant committed the prior murders only for the purpose of proving a non-statutory aggravating factor for sentencing for the murder presently at issue; 2) the district court abused its discretion in concluding that, in this case, any evidence of the double homicide posed such a great risk of unfair prejudice that it outweighed its high probative value; and 3) the district court could limit any prejudice with an instruction to the jury.” [more at FindLaw]
• Walter T. Storey v. Roper, 2010 U.S. App. LEXIS 8759 (8th Cir 4/28/2010) “In a capital habeas matter, a denial of petitioner’s habeas petition is affirmed where: 1) petitioner had an opportunity to interview the victim impact witnesses presented during sentencing before their testimony, and he had the opportunity (though he did not take it) to cross-examine the witnesses; 2) in light of all of the other relevant and admissible evidence presented at the third penalty-phase trial, a photo of the victim’s tombstone did not render the penalty-phase trial fundamentally unfair; 3) based upon the Supreme Court’s definition of “acquittal” in the context of a death sentence as explicated in Poland, petitioner had never been acquitted of the death penalty; and 4) petitioner failed to present new reliable evidence that he was innocent of the crime of which he was convicted.” [via FindLaw]
• People v. Stephen Moreland Redd, 2010 Cal. LEXIS 3749 (Cal 4/29/2010) “Defendant’s conviction and death sentence for first degree murder, attempted murders, second degree robbery, and other crimes, are affirmed on automatic appeal over claims of error regarding: 1) the detention and arrest of defendant, and a search of his vehicle; 2) the validity of the arrest and search; 3) denial of defendant’s motion for a lineup; 4) defense counsel’s reference to defendant during his opening statement; 5) the admission of the out-of-court identifications ; 6) victim-impact evidence at the guilt phase; 7) rejection of an instruction on lesser included offenses; 8) prosecutorial misconduct; 9) cumulative error; 10) admission of victim-impact evidence; 11) the rejection of various instructions requested by defendant; and 12) various challenges to California’s death penalty scheme.” [via FindLaw]
• Ronald Wayne Clark v. State,2010 Fla. LEXIS 648 (FL 4/29/2010) "Order denying an inmate’s motion to vacate his conviction and sentence under Fla. R. Crim. P. 3.851 was affirmed because the inmate failed to show that counsel was deficient, as the issues claimed by the inmate involved strategy, and the inmate failed to show prejudice." [via Lexisone] “Postconviction court’s order denying defendant’s motion to vacate a judgment of conviction of first degree murder and a sentence of death is affirmed where: 1) defendant’s ineffective assistance of counsel claim is meritless; and 2) defendant’s claim of newly discovered evidence was properly denied as he failed to raise the claim, that another individual confessed to being the shooter in the murder for which defendant was convicted, within one year of discovering it and failed to raise the claim in his pleadings at all.” [via FindLaw]
• Micah Louis Nelson v. State,2010 Fla. LEXIS 647 (FL 4/29/2010) "Order denying an inmate’s motion to vacate his conviction and sentence under Fla. R. Crim. P. 3.851 was affirmed because the inmate was unable to establish that trial counsel’s performance was deficient." [via Lexisone] “Petition for habeas relief brought by a defendant convicted of first-degree murder and sentenced to death is denied as the postconviction court properly denied defendant’s ineffective assistance claim as he is unable to demonstrate that trial counsel was deficient.” [via FindLaw]
• Ex parte Yokamon Laneal Hearn, 2010 Tex. Crim. App. LEXIS 533 (Tex. Crim. App. 4/28/2010) “Application for a writ of habeas corpus, which asserted that applicant was mentally retarded and exempt from death sentence, was dismissed because the evidence did not show significantly subaverage intellectual functioning pursuant to Tex. Health & Safety Code Ann. § 591.003(13); he could not use clinical assessment as replacement for IQ score. ” [via Lexisone]
• Ex parte Kerry Dimart Allen, NO. WR-73,586-01 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of postconviction claims.
• Ex parte Bustamante, NO. WR-58,927-02 (Tex. Crim. App. 4/28/2010) (unpublished) Summary denial of mental retardation claim.
• Frederick Bell v. Epps, No.08-70031(5th Cir 4/30/2010) Motion to expand COA denied on issues relating to "that the trial court erroneously denied his challenges for cause as to four jurors, which required him to use four of his peremptory challenges to keep them off the jury," IAC for failing "to challenge the state’s allegedly discriminatory use of peremptory challenges, as was his right under Batson v. Kentucky," and IAC for trial counsel's procedural default of certain jury selection issues.
• Randall Wayne Mays v. State, 2010 Tex. Crim. App. LEXIS 480 (Tex. Crim. App. 4/28/2010) "For purposes of Tex. Code Crim. Proc. Ann. art. 37.071, defendant failed to show egregious harm regarding the omission of the non-unanimity instruction, as the prosecutor never suggested or implied that the jury had to unanimously decide which defensive theory it chose to believe; the court affirmed defendant's capital murder conviction." [via Lexisone]
• Kosul Chanthakoummane v. State,No. AP-75,794 (Tex. Crim. App. 4/28/2010) (unpublished) Relief denied on sufficiency, shackling, denial of continuance, comments by the court vouching for the trial prosecutor, instruction on lesser included charges, admission of bite mark evidence, definition of the robbery mens rea, and the nature of the Texas capital sentencing scheme.

Week of April 26, 2010:noncapital

• Eugene Gall v. Scroggy, 2010 U.S. App. LEXIS 8868 (6th Cir. 4/29/2010) (dissent) Examining the power of a district court to enforce a grant of habeas corpus. “In defendant’s petition for habeas relief seeking an order mandating that the Commonwealth of Kentucky vacate his 1978 murder conviction and sentence of death, district court’s judgment declaring the conviction nullified is affirmed where: 1) the district court retained jurisdiction to consider and grant defendant’s motion, as the option provided by the Commonwealth by the conditional writ was to initiate involuntary commitment proceedings and when it failed to exercise that option, the writ became absolute; 2) the venue was proper in the United State District Court for the Eastern District of Kentucky; 3) defendant adequately alleges injury; 4) defendant has not waived or procedurally defaulted on his right to request nullification and expungement of the 1978 conviction; 5) the delay does not preclude defendant from now seeking expungement; and 6) neither comity nor the ends of justice bar expungement of the conviction.” [via FindLaw]
• State ex rel. Ariz. Dep’t of Corr. v. Kiger, 2010 Ariz. App. LEXIS 62 (Az App 4/29/2010) “This case presents the issue whether a superior court abused its discretion by ordering that the Arizona Department of Corrections (ADOC) transport Homer Roseberry, a death-row prison inmate housed at the Arizona State Prison Complex in Florence, to a medical facility in Tucson for testing in connection with his pending post-conviction relief petition. ADOC contends that Arizona Revised Statutes (A.R.S.) section 31-225 (2002) imposes upon the sheriff of the county where the proceeding is pending the duty to transport inmates whenever the purpose for the transport is “inextricably connected to a court proceeding.” We conclude that § 31-225 is not applicable under these circumstances. We further conclude that the superior court possesses inherent authority to order the agency that has custody of an inmate to transport him for court-related proceedings that do not require the inmate to be brought before the court. Finally, we reject ADOC’s contention that the transport order intruded on its executive authority over the inmates in its custody.”
• Brandon Morris v. State, 2010 Md. App. LEXIS 61 (Md. App. 4/29/2010) The constitutional validity or invalidity of the current means of execution does not control whether or not the State may seek death. “[T]he death penalty statute was not illegal at the time appellant received notice that the State would seek the death penalty, we hold that the trial court did not err by denying appellant’s motion to strike the death penalty notice based on appellant’s assertion that the death penalty was illegal.” Jury, however, mooted the issue by returning a life verdict and seating a “death-qualified” jury did not deny the defendant the right to a fair jury at the guilt or innocence stage of the trial.

Week of April 19, 2010:In Favor of the Accused or Condemned

• Ex parte Harrison, 2010 Ala. LEXIS 69 (Ala 4/23/2010) “[W]e conclude that Harrison’s claims in his Rule 32 petition that two jurors failed to answer accurately questions posed to them during the voir dire examination are not precluded. We therefore reverse the judgment of the Court of Criminal Appeals and remand this case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Harrison’s juror-misconduct claims and a determination as to whether Harrison is entitled to a new trial.”
• Michael Dale St. Clair v. Commonwealth, 2010 Ky. LEXIS 90 (Ky 4/22/2010) (dissent) "We now must reverse the death sentence imposed following the new sentencing trial because the trial court failed to comply with this Court's directive to follow the statutory language in instructing the jury on the applicable aggravator required to support a death sentence. The trial court instead fashioned an erroneous jury instruction that deprived St. Clair of his right to a unanimous verdict. Although we reverse solely on this issue, we also address other issues raised in this appeal that are likely to recur upon remand."

Week of April 19, 2010:In Favor of the State or Government

• Anthony Pierce v. Thaler, 2010 U.S. App. LEXIS 8031 (5th Cir 4/19/2010) "In a capital habeas matter, the district court's order requiring petitioner to be resentenced is affirmed where an additional instruction on mitigating evidence was required because: 1) under clearly established federal law, the future dangerousness special issue provided a meaningful basis for the jury to consider and give effect to petitioner's youth (he had just turned 18 at the time of the killing) and his good behavior in prison; and 2) petitioner's evidence of being led astray by older boys and being locked up for a significant period of time had mitigating relevance beyond the special issues and therefore required an additional instruction. Additionally, the district court's order denying all other relief is affirmed where the state habeas court was not unreasonable in determining that petitioner did not meet the Texas definition of a mentally retarded person." [via FindLaw]
• Darryl Durr v. Cordray, 2010 U.S. App. LEXIS 7981 (6th Cir. 4/18/2010) "In a death row inmate's 42 U.S.C. section 1983 suit challenging Ohio's denial of access to certain physical evidence for purposes of DNA testing, district court's determination that the action is a second or successive habeas petition was in err, but defendant's motion for a temporary restraining order or a preliminary injunction staying his execution is nonetheless denied as even if defendant were to prevail on his section 1983 claims, he would not be entitled to this remedy." [via FindLaw]
• In re William Josef Berkley, 2010 U.S. App. LEXIS 8479 (5th Cir (4/21/2010)(unpublished) "At trial, an FBI forensic examiner used the theory of Comparative Bullet Lead Analysis ("CBLA") when she testified that all five bullets were manufactured from the same "pot" of lead. The FBI has since acknowledged that this sort of testimony is problematic because it might lead a jury to believe that a "pot" is very small--perhaps as small as a box of ammunition--when in reality a pot might be much larger, thus diluting or negating its probative value. Berkley argues that the admission of this CBLA testimony amounted to a violation of his constitutional rights under Brady v. Maryland and Giglio v. United States and that he is actually innocent of capital murder. At the very least, Berkley argues that he has made a prima facie showing sufficient for this Court to authorize the filing of a second habeas application in the district court."

Week of April 19, 2010:noncapital

• State v. Terris Luckett, 2010 Md. LEXIS 140 (Md. 4/14/2010) " The Maryland high court decided suppression of the statement was appropriate not because the Miranda warning contained inaccuracies but because the rambling nature of the discussion resulted in a failure to effectively communicate the message mandated by Miranda." [via Basically Law] "A suspect under custodial interrogation by the police is not properly informed of the rights afforded by Miranda v. Arizona when the warnings, however consistent they might be with the language of Miranda, are accompanied by overt misstatements concerning those rights. In that event, the warnings are constitutionally infirm and any purported “waiver” of the rights afforded by Miranda is defective, requiring suppression in the State’s case-in-chief of any statement the suspect makes following the purported waiver." [court supplied headnote](note still sorting out whether or not this matter is capital)

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