Leading off this edition is the Arkansas Supreme Court's decision concerning theWest Memphis ThreeinDamien Echols v. State,Baldwin v. State&Misskelley v. State.That Court holds "that the circuit court erroneously interpreted the Arkansas DNA testing statutes" when it denied the three DNA testing.On remand "the circuit court shall hear Echols’s motion for a new trial and consider the DNA-test results 'with all other evidence in the case regardless of whether the evidence was introduced at trial' to determine if Echols has 'establish[ed] by compelling evidence that a new trial would result in acquittal.'"The Arkansas DNA test "statute requires that the court 'promptly set an early hearing on the petition and response' unless 'the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.'" Local reports note that the original circuit judge hearing the matter has been elected to the state senate and the remand hearing will likely before a new judge, i.e., one that didn't preside over the trial.

The SCOTUSBlog notes that "[i]n a asummary decision, without noted dissent, the Court reminded lower federal courts that they may not rule in favor of a state prisoner’s habeas challenge unless they explicitly find a violation of federal law — either the Constitution or a federal statute. Ruling in an unsigned, seven-page opinion inWilson v. Corcoran(10-91), the Court overturned a Seventh Circuit Court ruling that appeared to have been based on a flaw under Indiana state law in the death sentence of an Ohio inmate, Joseph Corcoran, for the murders of four men. While Corcoran’s lawyers had claimed that the state law violation also violated the federal Constitution, the Supreme Court said, the Circuit Court did not itself rule that way."

Other decisions of note in this edition include a pair of remands in Alabama from the Court of Criminal Appeals,Andrew Reid Lackey v. State&David Phillip Wilson v. Statewhere "in accordance with the parties' request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide [the condemned] with an opportunity to 'offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.'" In Florida, the State Supreme Court inPaul Christopher Hildwin v. Stateremanded to the trial court for a hearing to determine whether the lower court should order the State to perform CODIS & state DNA databank analysis as it relates to certain biological samples recovered from the crime scene. In Ohio, an intermediate appellate court inState v. Terrence Williamsholds relief and a new trial is warranted as the trial prosecutor apparently purposely misled the jury with statements he knew to be untrue and the curative instruction given by the trial court was too late to be meaningful. The Eleventh Circuit inTroy Anthony Davis v. Terryhas held that since "Davis filed a habeas petition pursuant to the Supreme Court’s original jurisdiction" it could not entertain, under AEDPA, a direct appeal from the district court's denial of relief, that relief, if any, can only be had in the United States Supreme Court. Finally, the Oregon Supreme Court, despite what appears from my perch a continent away as exceptionally creative lawyering, denied relief inState v. Gary Haugen on claims that a fair cross section of the community was denied the defendant when the trial court excused a juror for cause due to language difficulties rather than provide an interpreter and that under the state sentencing law any crime that is committed while a person is confined, in this case capital murder, must be served consecutive to the sentence already being served, in this case life.

In the news,DPIC notesthat recent DNA tests have revealed that a strand of hair found at the scene of a liquor-store shooting did not belong to Claude Jones, as was originally implied by the prosecution and raise serious doubts about the conviction of a Claude Jones executed in Texas in 2000.Oklahoma is seekingto end run around the shortage of sodium thiopental for its lethal injection process and will attempt to use pentobarbital in future executions. An anti-death-penalty group says it will use theIllinois Legislature's lame-duck veto session next week to try and pass legislation officially abolishing the death penalty here, 10 years after the state unofficially stopped executing people. Courthouse News Serviceexamines the oral arguments in Cullen v. Pinholsteron the role of evidentiary hearings and deference to state fact finding; the SCOTUS blog case file forCullen v. Pinholstercontains all briefing in the case, plus additional information.Harris County has appointedAlexander Bunin (FPD from the NDNY) as its first head public defender. Finally,Gov. Strickland in Ohiohas granted a commutation to Sidney Cornwell, which means, save for theBaze v. Reesrelated moratorium years, 2010 will be the lowest number of executions in a given year since Bill Clinton's first term as President.

Pending Executions

December

7 Billy Irick* (Tenn)

16 John David Duty* (Okla)

Stays & Commutations

October

14 Gayland Bradford* (Tex)

16 Jeffrey Matthews (Okla)

20 Roderick Nunley* (Mo)

November

9 Steven Michael West* (Tenn) (stayed through at least November 30)

16 Sidney Cornwell* (Ohio) (commuted)

19 James Robertson* (S.C.)

December

1 Steven Staley* (Tex) (forcible medication &Ford)

Executions

October

6 Michael Benge* (Ohio)

14 Donald Wackerly II* (Okla)

21 Larry Wooten* (Tex)

26 Jeffrey Landrigen* (Az)

November

4 Phillip Halford* (Ala)

*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [ via DPIC]

SCOTUS

• Wilson v. Joseph Corcoran, No 10-91 (11/8/2010) Federal courts may not issue a writ of habeas courts unless they explicitly find a violation of federal law. Although Corcoran's lawyers argued that the violation at issue in the case was both a violation of state and federal law, the Seventh Circuit panel addressed only the state law aspects of their argument.

Week ofNovember 8, 2010:In Favor of the Accused or Condemned

• Paul Christopher Hildwin v. State, 2010 Fla. LEXIS 1932 (FL 11/10/2010) Remand to the trial court entered for hearing to determine whether to perform CODIS & state DNA databank analysis compared to certain biological samples recovered from the crime scene. Hoping briefs will be available on this one soon.
• State v. Terrence Williams, 2010 Ohio App. LEXIS 4617;2010 Ohio 5484 (Ohio 8th App 11/10/2010) "Court erred in denying a mistrial under Crim. R. 33 because the prosecutor caused the jury to hear that defendant was linked to the vehicle used by the masked gunmen, when that was known by the prosecutor to be untrue, and the curative instruction given out-of-context the following day was not sufficient to erase the prejudice to defendant." [via LexisOne]

Week ofNovember 8, 2010:In Favor of the Prosecution or Warden

• Guadalupe Esparza v. Thaler, 2010 U.S. App. LEXIS 23368 (5th Cir 11/9/2010) Relief & COA denied on claims Mr. Esparza "is entitled to a jury finding with respect to the issue of mental retardation. He also contends that his counsel rendered ineffective assistance by failing to investigate his mental retardation and present evidence of his mental retardation at sentencing."
• Lisa Jo Chamberlain v. State, 2010 Miss. LEXIS 585 (Miss 11/10/2010) Relief denied on claims including: [A] guilt phase IAC including (1) failure "to raise a gender-based Batson challenge, failed to argue on direct appeal that the trial court’s acceptance of pretextual strikes was plain error, and failed to question jurors to determine whether they were qualified to serve on the jury in spite of their opposition to the death penalty;" (2) failure to develop and present evidence of "her methamphetamine withdrawal and its effect on her during interrogation;" (3) "counsel was deficient when he failed to introduce evidence that she was dominated by her codefendant;" and (4) "counsel was deficient when he failed to object to the testimony of Vanessa Stringfellow;" [B] "trial counsel was deficient before and during the penalty phase of her trial, because he conducted only a minimal investigation of her background in search of mitigating evidence;" [C] "the State violated Brady v. Maryland n1 when it failed to produce a letter written by her codefendant, Roger Gillett, that contradicted the State's theory that she was the instigator of the crime;" and [D]lethal injection related claims.
• Renald Devon McGirth v. State, 2010 Fla. LEXIS 1935 (FL 11/10/2010) Relief denied on claims of "(1) whether the trial court erred in admitting Williams rule evidence in the guilt phase that had more prejudicial effect than probative value; (2) whether the trial court erred in its response to a jury question concerning the law on principals; (3) whether the trial court erred in admitting excessive and inflammatory victim impact evidence during the penalty phase; (4) whether a prosecutorial remark during the penalty phase closing argument warrants a new penalty phase trial; (5) whether the trial court erred in finding the cold, calculated, and premeditated aggravator; (6) whether the trial court erred in finding the heinous, atrocious, or cruel aggravator; (7) whether the trial court erred in finding the avoid arrest aggravator; and (8) whether Florida‘s death penalty statute violates Ring v. Arizona."
• Comm. v. Andre Staton, 2010 Pa. LEXIS 2530 (Penn 11/9/2010) Relief denied as precedent "strongly and logically suggest that a request to proceed pro se, and a concomitant motion to withdraw, should be denied when forwarded at this late stage."

Week ofNovember 1, 2010:In Favor of the Accused or Condemned

• Damien Echols v. State, 2010 Ark. 417 (Ark 11/4/2010) "[W]e hold that the circuit court erroneously interpreted the Arkansas DNA testing statutes, we reverse and remand for an evidentiary hearing, at which the circuit court shall hear Echols’s motion for a new trial and consider the DNA-test results 'with all other evidence in the case regardless of whether the evidence was introduced at trial' to determine if Echols has 'establish[ed] by compelling evidence that a new trial would result in acquittal.' We hold that because the circuit court interpreted the statutes in question incorrectly, it applied the wrong legal standards to Echols’s motion. Furthermore, the statute requires that the court 'promptly set an early hearing on the petition and response' unless 'the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.' Id. § 16-112-205. Echols’s petition and the files and records of the proceeding do not conclusively show he is entitled to no relief, and the circuit court should have held an evidentiary hearing. Therefore, we reverse and remand for an evidentiary hearing and reconsideration of the motion in light of the proper interpretation of the statutes. (companion noncapital cases, both decided same dayBaldwin v. State&Misskelley v. State)
• Andrew Reid Lackey v. State, 2010 Ala. Crim. App. LEXIS 101 (Ala. Crim. App 11/5/2010) "Thus, in accordance with the parties' request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide Lackey with an opportunity to 'offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.'"
• David Phillip Wilson v. State, 2010 Ala. Crim. App. LEXIS 100 (Ala. Crim. App 11/5/2010) "Thus, in accordance with the parties' request, this Court remands this cause to the circuit court for that court to hold a hearing during which it is to require the State to provide its reasons for striking African-American veniremembers and to provide Wilson with an opportunity to 'offer evidence showing that the [State's] reasons or explanations are merely a sham or pretext.'"

Week ofNovember 1, 2010:In Favor of the Prosecution or Warden

• Virgilio Maldonado v. Thaler, 2010 U.S. App. LEXIS 22590 (5th Cir 10/29/2010) "[E]vidence does not rebut the presumption of correctness that attaches to the state habeas court’s conclusion that Maldonado did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law nor an unreasonable determination of the facts in light of the evidence." " A habeas petitioner was not entitled to relief under the Eighth Amendment because he could not meet his burden of showing that a state court's finding that he was not mentally retarded was either an unreasonable application of federal case law or an unreasonable determination of the facts in light of the evidence presented in state court." [via Lexisone]
• Andre Cole v. Roper, 2010 U.S. App. LEXIS 23128(8th Cir 11/5/2010) (dissent) " Missouri state courts' decisions on a Batson claim were not contrary to, or an unreasonable application of, federal law; ineffective assistance of counsel claim was properly rejected as counsel was not deficient for failing to seek another expert opinion when two pretrial experts both determined Cole was not suffering from a mental disease or defect at the time of the crime; counsel made a reasonable litigation decision not to present evidence of Cole's behavior in prison at the penalty phase of the trial; one of Cole's claims concerning the use of restraints at trial was procedurally defaulted; with respect to the other claim, the district court did not abuse its discretion in denying Cole's request for an evidentiary hearing; with respect to the merits of the claim, Deck v. Missouri did not apply retroactively; in any event, the restraints in question would not violate the holding in Deck; Missouri courts' rejection of Cole's claims of prosecutorial misconduct in the guilt and penalty phases was not contrary to, or an unreasonable application of, Supreme Court precedents. Judge Bye, concurring in part and dissenting in part." [via Clerk's Office "In a capital habeas matter, the denial of the petition is affirmed where: 1) the state court's factual findings regarding the three proffered similarly situated jurors in response to petitioner's Batson challenge were accorded a presumption of correctness; 2) with the strong expert testimony already in the hands of the state at the time of trial, it was unlikely that petitioner suffered any prejudice from counsel's failure to call more favorable expert or lay witnesses; and 3) evidence of petitioner's disposition to make a well-behaved and peaceful adjustment to life in prison was relevant mitigating evidence but counsel's failure to offer such evidence was not constitutionally deficient." [via FindLaw]
• Lawrence Landrum v. Mitchell, 2010 U.S. App. LEXIS 23035; 2010 FED App. 0340P (6th Cir. 11/4/2010) "District court's grant of defendant's petition for habeas relief on the basis of guilt-phase ineffective assistance of counsel is reversed where: 1) defendant procedurally defaulted his claim of ineffective assistance of trial counsel for failing to seek admission of witness's testimony during the guilt phase; 2) defendant has not shown cause to excuse default of the claim because he has also procedurally defaulted his ineffective assistance of appellate counsel claim; and 3) the balance of defendant's guilt phase ineffective assistance claims are without merit." [via FindLaw]
• Stephen Michael West v. Gray, 2010 U.S. App. LEXIS 23043; 2010 FED App. 0688N (6th Cir. 11/4/2010) (dissent)(unpublished) Lethal injection challenged denied as being filed out of time. Dissent asserts that due to unusually low sodium thiopental levels indicated in the two most recent post-mortem lethal injection executees, that Mr. West could not have known of the potential problems with the Tennessee lethal injection protocol.
• State v. Gary Haugen,2010 Ore. LEXIS 829 (Ore 11/4/2010) Despite exceptionally creative lawyering a defense loss on claims including claims that a fair cross section of the community was denied the defendant when the trial court excused a juror for cause due to language difficulties rather than provide an interpreter, exclusion of certain evidence of a prosecution witness's potential bias, and admission of certain expert testimony. Further, relief denied as "[d]eath sentence did not have to be imposed consecutively to the life sentence that defendant was already serving. Statute requiring consecutive sentences, Or. Rev. Stat. § 137.123(3), conflicted with death penalty statutes, so court relied on particular legislative intent that death sentence be carried out for aggravated murder committed in prison." [via LexisOne]
• In re: Stephen Michael West, 2010 U.S. App. LEXIS 23358;2010 FED App. 0689N (6th Cir. 11/4/2010) Rule 60(b) motion held to be a successive petition. "In his motion, West alleged that the district court—and this court—"misapprehen[ded] the interplay between sections 2254(d) and 2254(e) of AEDPA" and therefore failed to consider an ineffective assistance of counsel claim premised upon a failure to present specific pieces of evidence. Specifically, West argues [*3] that, when this court conducted a de novo review of his ineffective assistance claim, it should have considered all available evidence—including evidence not presented to the state court—and that intervening case law indicates that this court should have considered such evidence." As noted above, Mr. West's x-date is currently stayed.
• James C. Fudge v. State, 2010 Ark. 426 (Ark 11/4/2010) Examining state writ of error coram nobis, holding (death sentence previously vacated) challenges to underlying conviction by use of the writ of coram nobis may only be had in certain very unusual circumstances, not alleged here.
• State v. Byron Lamar Waring, 2010 N.C. LEXIS 915 (N.C. 11/5/2010) Relief denied. "First, no error in failure to suppress his prior confessions. Found that Waring voluntarily went with police and voluntarily was questioned. Thus, no interrogation and no Miranda problem. Second, while the state used its peremptory challenges to exclude blacks from the jury, the court found that there were legitimate bases for such use, as one juror gave questionable support to the death penalty and another because the prosecutor was "concerned that she didn't watch the news." The state struck 50% of eligible black jurors. The court found that this number wasn't so high as "to suggest a systematic effort" to exclude blacks. Court also reviewed other issues and found no error. Of interesting note, this is yet another case where blacks were struck at a much higher rate than white and no finding of Batson error. While every litigant knows that race is taken in account in jury selection, still no [North Carolina] appellate court has ever granted Batson relief." [via NC Crim Law Blog]
• Calvin McMillan v. State, 2010 Ala. Crim. App. LEXIS 106 (Ala Crim App 11/5/2010) "Defendant's capital-murder convictions were proper, in part because the investigator did not interrogate defendant until he had indicated that he understood his rights and chose to waive them. Thus, there was no constitutional violation of defendant's right to counsel and his statement was properly admitted." [via LexisOne]
• Michael Dewayne Smith v. State, 2010 Okla. Crim. App. LEXIS 24;2010 OK CR 24 (Okla Crim App 11/5/2010) Relief denied on claims relating to (A) whether Mr. Smith is mentally retarded; post-trial witness affidavits indicating that " (1) the State withheld exculpatory evidence; (2) the trial judge was biased; and (3) the State failed to correct perjured testimony;" IAC as to suppression/Miranda hearing where, it is alleged, trial counsel failed to "adequately investigate and present evidence that he could not have knowingly or voluntarily waived his Miranda-warned8 rights because he: (1) was under the influence of phencycledine (PCP); (2) suffers from low intelligence; and (3) is mentally retarded and has organic brain damage;" and IAC for failing to present mitigating evidence to the " jury with expert evidence that he suffered from organic brain damage and low intelligence caused by long-term daily use of the drug phencyclidine."
• Troy Anthony Davis v. Terry, 2010 U.S. App. LEXIS 23123(11th Cir 11/5/2/10) "Davis filed a habeas petition pursuant to the Supreme Court’s original jurisdiction. If this court granted Davis’s request for a COA and reviewed the district court’s order at this juncture, as Davis requests, we would effectively be restoring his remedies in federal court, in complete contradiction to the express intent of Congress. In effect, we would be nullifying our previous decision denying Davis leave to file a successive habeas petition. We decline to do that."

Week ofOctober 25, 2010: In Favor of the Accused or Condemned

• William Wiley v. Epps, No. 09-70037 (5th Cir 10/27/2010) The condemned is categorically barred from execution in light ofAtkins v. Virginia.
• Aryon Williams v. Ryan, 2010 U.S. App. LEXIS 22073 (9th Cir 10/26/2010) (dissent) TheArizona Capital Representation Projectnotes that "[t]he 9th Circuit remanded for an evidentiary hearing on petitioner’s Brady claim .. . . The Court further vacated the death sentence and remanded for a new sentencing hearing on the basis of a Tennard violation."Jon Sands notes"This is a Brady issue. The petitioner was convicted of capital murder of his former girlfriend and given a death sentence. There was an alleged confession to a present girlfriend, but little else in the way of physical evidence due to the remote location of the killing. Two years after the sentence, the state turned over letters written by an inmate to a detective that contained information that petitioner paid another man (Fields) who actually had committed the murder. There was evidence that connected him. The issues here turn over whether this was Brady, and Brady as to what stage (guilt/sentence), and whether an evidentiary hearing was required. The 9th found that it was Brady as to sentencing, and a writ should be issued. The majority went further, holding that the Brady violation concerning another alleged perpetrator went to guilt, and that an evidentiary hearing was required to develop the record on whether it necessitated a new trial. In dissent, Ikuta would not go so far, finding no need for an evidentiary hearing in the guilt phase because the petitioner did not supposedly ask for it forcefully enough and under the facts as already developed."
• State v. Jason Dean, 2010 Ohio 5070; 2010 Ohio LEXIS 2677 (Ohio 10/26/2010) Dean " was fully advised about the potential dangers of proceeding pro se, and he rejected repeatedly the attorneys assigned to represent him. Under these circumstances, the trial court abused its discretion by finding that Dean’s request for self-representation was involuntary and by refusing to allow him to proceed pro se, especially when the trial judge’s own conduct resulted in the trial court’s finding of involuntariness.
• Kristi Leigh Fulgham v. State, 2010 Miss. LEXIS 570 (Miss 10/28/2010) "The trial court committed reversible error by limiting mitigation evidence. Specifically, the court erred by refusing to allow social worker Adrienne Dorsey-Kidd to testify to her observations as mitigating evidence at the sentencing phase." Related noncapital matter at 2010 Miss. LEXIS 570.

Week ofOctober 25, 2010:Notable orders

• Jeffrey Timothy Landrigen v. Brewer, 2010 U.S. App LEXIS 22069 (9th Cir 10/26/2010) "District court did not abuse its discretion in temporarily enjoining an inmate's execution based on his claim that use of a drug from an unidentified foreign source." Stay subsequent lifted by the SCOTUS.

Week ofOctober 25, 2010:In Favor of the Prosecution or Warden

• Virgilio Maldonado v. Thaler, No. 10-70003 (5th Cir 10/29/2010) "[E]vidence does not rebut the presumption of correctness that attaches to the state habeas court’s conclusion that Maldonado did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law nor an unreasonable determination of the facts in light of the evidence."
• In re Cary Michael Lambrix, 2010 U.S. App. LEXIS 21992, (11th Cir 10/26/2010) "Petitioner's application for leave to file a second or successive 28 U.S.C.S. § 2254 habeas corpus petition was denied; three of petitioner's alleged new claims did not assert a U.S. Constitutional violation, and three of the claims in petitioner's application had been previously presented in petitioner's prior federal habeas petition." [via LexisOne] "In a capital habeas matter, petitioner's application to the Court of Appeals for leave to file a second or successive 28 U.S.C. section 2254 federal habeas petition, the application is denied where: 1) petitioner failed to allege what evidence was new, when it was discovered, or how it could not have been discovered previously through the exercise of due diligence; and 2) the evidence presented by petitioner was not sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable jury would have found petitioner guilty of the underlying murders." [via Findlaw]
• Steven Michael Woods v. Thaler, 2010 U.S. App. LEXIS 22014 (5th Cir 10/25/2010) Relief denied on appeal on claims relating to IAC where the district court, purportedly, "(1) did not consider all material evidence in evaluating the prejudice prong of his Strickland–Wiggins claim; (2) denied an evidentiary hearing and relied on the state court findings of fact and conclusions of law, which resulted from a procedurally inadequate paper hearing; and (3) failed to focus on the possible influence of omitted mitigation evidence upon the individual jurors." "Inmate was not entitled to habeas relief pursuant to 28 U.S.C.S. § 2254 because he did not show that counsel rendered ineffective assistance by failing to fully investigate and present mitigating evidence of inmate's family, acquaintances, and other witnesses in light of prosecution's great amount of potentially harmful rebuttal evidence." [via FindLaw]
• Jeffrey Timothy Landrigan v. Trujillo, 2010 U.S. App. LEXIS 22550 (9th Cir 10/25/2010) " A death-row prisoner's application for a second and successive habeas petition under 28 U.S.C.S. § 2244 was denied because he presented no substantial ground on which relief could have been granted. The court's review of the record convinced it that further exploration by the district court was unwarranted."

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