Favorable opinions from Texas lead off this edition.The Texas Court of Criminal Appeals has granted a new trial inEx parte Roderick Dashad Newtondue toBradyerror; lest you think the CCA is softening, the State conceded error.InEx parte Arthur Lee Williamsthe CCA ordered a remand on multipleclaims of ineffective assistance of counsel arising from in-court trial counsel performance issues, as well as statutory challenge as to whether the Texas statute “requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.”

In the news,lethal injectionremains hot as half a dozen states are no embroiled in the issue of the legality, as practiced,of lethal injection, Steve Hall wraps up all the LI news in greater detail than what time and space here permit.Roderick Newton, as noted above, has seen his death sentenced reduced to life and, in aplea deal struck in recent days, Mr. Newton will receive "two stacked life sentences." A new study notes "a majority support an alternative to executions." In TexasRonald Curtis Chambers, that state's longest serving death row inmate, died while awaiting retrial. A recently introducedUnited Nations Resolutionin support of a global moratorium on executions was opposed by less than a quarter of its member nations (incl. United States, China, Iran & Saudi Arabia), the smallest number ever.Cherie Blair, the wife of the former British Minister, has a piece in theLondon Evening Standardabout her sharp confrontation with then President George W. Bush over capital punishment & the efforts by British lawyers to ban export of lethal injection drugs to the States.

In Illinois a bill to repeal the death penalty - SB 3539 - has been introduced in the state legislature. They could be voting on it as early as Monday.EJUSAhas what you can do to help kill the death penalty in Illinois if you live outside of the state. TheICADPhas what in state residents can do, as well as news updates.

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 15, 2010:In Favor of the Accused or Condemned

• Ex parte Roderick Dashad Newton,NO. AP-76,456 (Tex. Crim. App. 11/17/2010) (unpublished) Remand asState concedesBradyerror.
• Ex parte Arthur Lee Williams, NO. AP-76,455 (Tex. Crim. App. 11/17/2010) (unpublished) Remand ordered on multiple IAC in-court performance issues, as well as statutory challenge as to whether the Texas statute “requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.”
• Kenneth Clair v. Ayers, 2010 U.S. App. LEXIS 23693 (9th Cir 11/17/2010) (unpublished) Trial court erred in not appointing counsel in this capital habeas matter. “Because Clair has been appointed new counsel on appeal, and because the district judge has retired, the most reasonable solution to the conundrum of how to correct on remand the district court’s abuse of discretion is to treat Clair’s current counsel as if he were the counsel who might have been appointed had the district court properly exercised its discretion in response to Clair’s request for new counsel.In that role, counsel shall consult with Clair and determine what actions and submissions to the district court, if any, would be appropriate before the district court rules anew on Clair’s habeas petition, and then proceed accordingly. The district court shall, in turn, consider any such submissions, including any requests from counsel to amend the petition to add claims based on or related to the alleged new physical evidence, as if they had been made prior to the ruling on the writ that we have vacated and shall make all further determinations that may be required in accordance with applicable law.”
• William Wiley v. Epps, No. 09-070037 (5th Cir 11/17/2010) District Court did not err in finding Wiley mentally retarded, judgment affirmed.

Favorable Noncapital

• Curtis Robertson v. Simpson, 2010 U.S. App. LEXIS 23410 (6th Cir 11/12/2010) (noncapital) Remand ordered “for a determination of whether [counsel's] cocaine use and possible misadvice constitute sufficient extraordinary circumstances to entitle Robertson to equitable tolling.”

Week ofNovember 15, 2010:In Favor of the Prosecution or Warden

• James Henderson v. Thaler, No. 08-70018, (5th Cir 11/16/2010) “Although the inmate argued that irrespective of any procedural bar, the court should have reached the merits of his Atkins claim because he was actually innocent of the death penalty, there was no actual innocence exception that served as a gateway through the AEDPA statute of limitations to the merits of a petitioner’s claims.” [via LexisOne]
• John Lezel Balentine v. Thaler,2010 U.S. App. LEXIS 23699 (5th Cir. 11/17/2010) Mr Balentine “appeals the district court’s denial of his Rule 60(b) motion to set aside that court’s 2009 judgment. We initially held his arguments to be valid. On rehearing, we conclude that a ruling by the Texas Court of Criminal Appeals should not be presumed to have reached the merits of his claims. The claims are procedurally defaulted and cannot be considered.”
• Felix Rocha v. Thaler, 2010 U.S. App. LEXIS 23696 (5th Cir. 11/17/2010) “Texas court did not decide a prisoner’s ineffective assistance of sentencing counsel claim on the merits when it found that the prisoner was not actually innocent of the death penalty and was not entitled to review of a successive habeas application under Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)(3); federal review was procedurally barred.” [via LexisOne]
• People v. Richard Don Foster, 2010 Cal. LEXIS 11680 (Cal 11/18/2010) “Conviction of defendant for first degree murder, second degree burglary, and second degree robbery and a sentence of death are affirmed in its entirety over challenges to: 1) the use of physical restraints on defendant at trial; 2) trial court’s voir dire of prospective jurors; 3) admission of evidence of prior crimes; 4) cross-examination of defendant regarding is prior crimes; 5) third-party contacts with jurors; 6) the trial court’s refusal to instruct the jury on the court’s own motion with respect to trespass as a lesser included offense of burglary; 7) jury instructions concerning prior crimes; 8) sufficiency of the evidence; 9) asserted prosecutorial misconduct; 10) cumulative error; 11) preinstruction of jurors in the penalty phase; 12) instruction concerning victim-impact evidence; and 13) California’s death penalty scheme.” [via FindLaw]
• People v. Timothy Russell, 2010 Cal. LEXIS 11346 (Cal 11/15/2010) “Conviction of defendant for the murders of two county sheriff’s deputies and a sentence of death are affirmed over claims of: 1) alleged instructional error on lying in wait as theory of murder; 2) allegedly erroneous denial of guilt and penalty phase motions to have jury view scene of shooting; 3) allegedly erroneous interference with jury’s deliberations and improper coercion of guilt verdicts; 4) alleged instructional error on consciousness of guilt consistent with CALJIC No. 2.03; 5) alleged instructional error that jury need not agree whether defendant committed a premeditated murder or lying-in-wait murder; 6) allegedly erroneous denial of defendant’s motion to admit his recorded statements to police; 7) allegedly erroneous excusal of prospective jurors; 8) allegedly improper introduction of victim impact evidence and alleged instructional error regarding use of victim impact evidence; 9) alleged instructional error regarding uncharged acts as aggravating factors; 10) alleged instructional error regarding lack of prior felony convictions; 11) alleged instructional error regarding double-counting special circumstances as aggravating factors; 12) alleged instructional error regarding jury’s consideration of circumstances of crime as aggravating evidence under section 190.3(b); 13) penalty phase instructional challenges; 14) alleged instructional error regarding scope of jury’s sentencing discretion and nature of deliberative process; 14) alleged instructional error regarding section 190.3; 15) lack of intercase proportionality review; 15) cumulative error; and 16) alleged violation of international law, and of the Eighth and Fourteenth Amendments to the U.S. Constitution.” [via FindLaw]
• Dean Kilgore v. State, 2010 Fla. LEXIS 1976 (FL 11/18/2010) “Trial court’s denial of defendant’s motion for postconviction relief from his capital murder conviction and sentence of death is affirmed and defendant’s petition for writ of habeas corpus is denied where: 1) defendant’s various ineffective assistance of counsel claims are rejected; 2) defendant has failed to prove prejudice was generated by the alleged Brady violation, and because he has failed to establish any evidence that was withheld, he fails under both the second and third prongs of Brady; 3) defendant’s challenge to the postconviction court’s determination that he is not mentally retarded is rejected; 4) defendant’s constitutional challenge to the rule 3.203, which requires mental retardation challenges for defendants sentenced to death prior to the United States Supreme Court’s decision in Atkins to be raised in a motion pursuant to rule 3.850 or 3.851, is rejected; 5) defendant’s claim that he was denied a fair trial because of improper prosecutorial comments made at trial and trial counsel’s failure to object to those comments is without merit; 6) defendant’s claim that his constitutional rights were violated by the rule that prohibits counsel from interviewing jurors to determine if constitutional error was present is procedurally barred; 7) defendant’s challenge to the method of execution is rejected; and 8) defendant’s claims of ineffective assistance of appellate counsel are rejected.” [via FindLaw]
• Seattle Times Company et al. v. Hon. Serko, 2010 Wash. LEXIS 1019 (Wash 11/18/2010) For purposes of State open records act, information relating to ongoing capital litigation need not be produced by law enforcement while such litigation is pending.

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

• Ex Parte Michael Gonzales, NO. WR-40,541-03 (Tex. Crim. App. 11/10/2010) (unpublished) Petitioner has not filed a postconviction relief petition within the statutorily designated time, as such, any filed petition will be treated as a successive petition.
• Ex Parte Eugene Williams, NO. WR-63,237-03 (Tex. Crim. App. 11/10/2010) (unpublished) IAC claims barred from review under successive writ doctrine.
• 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."

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