Three grants of relief are noted this week:Comm. v. Wayne Smith(Penn),Danny Keith Hooks v. Workman(10th Cir), and,Kenneth Glenn Thomas v. Allen(11th Cir).

Of the threeSmithleads off. Smithexamines the interplay of counsel during a capital trial and the responsibility for penalty phase investigation and in-court mitigation efforts. Mr. Smith's attorney thought he might be able to win a penalty phase verdict short of first degree murder, known elsewhere as capital murder. Lead trial counsel “myopically” focused on the possibility of winning a lesser included included verdict, As a result he failed to provide meaningful direction to the mitigation team members, and, resultingly, missed low hanging mitigation evidence. "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." "Accordingly, appellant was prejudiced by trial counsel’s inadequate investigation, and remand for a new penalty phase is required. ”

The Tenth Circuit inDanny Keith Hooks v. Workmangrants relief as theAllencharge, as given by the trial court, was improper. "[T]the OCCA aggregated all "errors" in deciding this (possibly distinct) question: Was Hooks afforded a fundamentally fair sentencing proceeding? The OCCA's "combination of errors," however, excludes other relevant contextual circumstances, such as the timing of theAlleninstruction, the significance of the jury notes, and the impact of the trial court's decision to give the instruction to an apparently deadlocked jury." On these facts, therefore, "[f]ailure to grant relief on this record would amount to nothing more than "abject deference" to the decision of the OCCA, something to which no state court is entitled under AEDPA."

In the Supreme Court since the last edition the Court decidedBerghuis v. Thompkins. InThompkinsthe Court, 5-4, appears to have contracted the rights explained inMrianda, holding that one must affirmatively tell the police one is invoking their right to silence. The Court did appear to address the issue, despite this matter reaching the Court on post-AEDPA habeas review, de novo. The Court also briefly touched upon an IAC claim on which the Court below granted relief. This was the fifth reversal this term in a criminal case for the Sixth Circuit.

Normally anything positive out of the Fourth, Fifth or Eleventh Circuit would lead off an edition. The Eleventh Circuit's opinion inKenneth Glenn Thomas v. Allen, affirming the grant of relief on Atkins/Mental Retardation is so straight forward as to be deserving of a quick passing mention.

Pending Executions

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)

July

1 Michael Perry* (Tex)

13 William Garner* (Ohio)

20 Derrick Jackson* (Tex)

Stays

May

4 Stacey Eugene Johnson* (Ark)

19 Marlon Duane Kiser* (Tenn)

20 Richard Lee Tabler*(Texas)

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)

*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 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.
• 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. Comstock, No. 08-1224 (5/17/2010) The Necessary and Proper Clause grants Congress authority sufficient to enact 18 U.S.C. § 4248, regarding a federal civil commitment program for certain sex offenders.
• Graham v. Florida, No. 08-7412 (5/17/2010) As noted above, juvenile life without parole is unconstitutional for nonhomicide offenses.
• 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.
• Sullivan v. Florida, No. 08-7621 (5/17/2010) Dismissed as improvidently granted, in light ofGraham's holding barring LWOP for juveniles in nonhomicide offenses.
• Robertson v. United States ex rel. Watson, No. 08-6261 (5/24/2010) Dismissed as improvidently granted.

Week of May 23, 2010:In Favor of the Accused or Condemned(initial list)

• 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.

Week of May 16, 2010:In Favor of the Accused or Condemned

• Kirk Douglas Williams v. State, 2010 Fla. LEXIS 798 (FL 5/20/2010) “Defendant’s death sentence was improper, in part because the direct evidence of the murder showed that it was not a preplanned killing that would meet the heightened premeditation standard required for being cold, calculated, and premeditated. The testimony showed that the murder arose as part of a spontaneous and unplanned fight.” [via LexisOne]

Week of May 16, 2010:In Favor of the Prosecution or Warden

• Donnie Johnson v. Bell, 2010 U.S. App. LEXIS 9975 (6th Cir. 5/17/2010) “Denial of defendant’s motions for equitable relief, following his conviction of murdering his wife and sentence to death, is affirmed in part and dismissed in part where: 1) district court’s denial of defendant’s Rule 60(b) motion is affirmed as defendant has not come forward with clear and convincing evidence that the prosecution presented intentionally false material to the the district court; and 2) defendant’s second Rule 60(b) is dismissed as he failed to first obtain leave from the court to file a successive application.”
• United Stats v. James Gallaher, Jr., 2010 U.S. App. LEXIS 10205 (9th Cir 5/19/2010) “In a capital murder prosecution, the denial of defendant’s motion to dismiss his superseding indictment is affirmed where the plain text of 18 U.S.C. section 1111(b) mandated that the court of appeals continue to categorize first degree murder as a crime punishable by death.”
• James Daniel Turner v. State, 2010 Fla. LEXIS 800 (FL 5/20/2010) “Defendant’s double jeopardy rights under U.S. Const. amend. V and art. I, § 9, Fla. Const., were not violated because defendant, after consideration discussion with his counsel, chose to ask for a mistrial and there was no goading by the prosecution, which would bar the State from proceeding to a subsequent trial.” [via LexisOne]
• Randolph Mansoor Greer v. Thaler, 2010 U.S. App. LEXIS 10100 (5th Cir 5/17/2010) “COA [denied] as to four issues: (1) whether his due process right to an impartial jury was denied when the trial court overruled his voir dire challenge of juror M.J., who expressed a preference for imposing the death penalty; (2) whether his due process right to an impartial jury was denied when the trial court denied his motion for a new trial after juror J.N. testified regarding inappropriate comments during jury deliberations; (3) whether his right to effective assistance of counsel was denied when his trial attorneys failed to obtain forensic expert assistance to aid in his defense; and (4) whether his rights were violated by the trial court’s jury instruction, pursuant to the Texas “12-10 Rule” governing capital sentencing, regarding the effect of a “no” vote by a single juror when answering the special issues.”

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