Week of October 5, 2009 – In Favor of the Accused or Condemned (initial list)

Week of October 5, 2009 – In Favor of the State or Government (initial list)

Week of October 5, 2009 – Other (initial list)

Week of September 28, 2009 – In Favor of the Accused or Condemned

Week of September 28, 2009 – In Favor of the State or Government

Frederick Bell v. Epps, 2009 U.S. App. LEXIS 21331 (5th Cir 9/28/2009) (unpublished) Relief denied. "His argument that his trial counsel was inadequate for failure to investigate witnesses to corroborate his alibi is [ ] both waived and procedurally barred."  The state supreme court's adjudiation of claims "that his trial counsel was ineffective at sentencing for failure to develop additional testimony on potential mitigating factors" was not unreasonable.

Randy Lamont Lewis v. State,  2009 Ala. Crim. App. LEXIS 123 (Ala. Crim. App. 10/2/2009) Relief denied on claims including:(A) Method of execution; (B) “Lewis's second argument is that indicting him for, convicting him of, and  sentencing him for three counts of capital murder violated double jeopardy principles;” (C.) that "the State did not present sufficient evidence to support his capital murder conviction;" (D) "his trial attorneys did not properly investigate the statements of the witnesses; that, based on that failure, his trial attorneys were not able to find the cameraman from WBRC-TV Fox 6 News who videotaped Vontricesa saying that she did not know the man who was charged with killing Taurus Frost until the end of the defense testimony; that he was not able to subpoena the cameraman to authenticate the videotape; and that he was not able to introduce the videotape for the purpose of impeaching Davis;" and (E) Statutory review.   Convictions vacated for robbery and kidnapping as they were subsumed in the charges of capital robbery-murder and capital kidnapping-murder.

Vernon Lamar Yancey v. State,  2009 Ala. Crim. App. LEXIS 126 (Ala. Crim. App. 10/9/2009) On return from remand, judicial override of sentencing jury's life recommendation  affirmed.  Remand previously had to reweigh and memorialize the weight given sentencing jury's life recommendation

Commonwealth v. Craig Williams, 2009 Pa. LEXIS 2096 (Penn 10/2/2009) (dissent) "Relief denied on a fairly strong claim about failure of trial counsel to conduct a reasonable investigation.  Good language about the judicial adoption of the prosecution's proposed order on postconviction review. An order of the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., court denying appellant a new penalty hearing on remand was upheld since each of his claims of ineffective assistance of counsel were found meritless under 42 Pa.C.S. § 9543." [via Lexis]

Commonwealth v. Cam Ly, 2009 Pa. LEXIS 2043 (Penn 10/1/2009)  (dissent) Relief denied, most notably, as the dissent notes, on claims relating to "trial counsel [ ] conducted effectively no pre-trial penalty-phase investigation and, indeed, did not so much as ask Appellant about his background.  It is undisputed that, prior to the penalty hearing, counsel also did not even attempt to learn what aggravating circumstances the Commonwealth intended to pursue."  Lexis examines the decision this way: "[u]nder U.S. Const. amend. XIV, conflicting identifications made by a witness of another person involved in a shooting should have been disclosed because they could have been used to question her identification of appellant as the shooter. Appellant was not prejudiced, however, as the witness never wavered in identifying appellant as the shooter."

Commonwealth v. Jerry Chambers,  2009 Pa. LEXIS 2039 (Penn 9/30/2009) "On direct appeal, there was sufficient evidence to support defendant's death sentence and conviction for first-degree murder (18 Pa.C.S. § 2502) based on the evidence that he beat the three-year-old victim regularly, struck her so hard on the night of her death that she hit a radiator and was thrown behind a bed where she suffocated." [via Lexis]

Ex parte Rubern Ramirez Cardenas, 2009 Tex. Crim. App. Unpub. LEXIS 652  (Tex. Crim. App. 9/30/2009) (unpublished)  Relief summarily denied.

Ex parte Sheldon Aaron Ward, 2009 Tex. Crim. App. Unpub. LEXIS 640  (Tex. Crim. App. 9/30/2009) (unpublished)  Relief summarily denied.

Ex parte David Lee Powell 2009 Tex. Crim. App. Unpub. LEXIS 632,  (Tex. Crim. App. 9/30/2009) (unpublished)  Relief summarily denied.under Article 11.071, § 5.

Week of September 28, 2009 – Other

State v. Neyland,  2009 Ohio 5015; 2009 Ohio LEXIS 2686 (Ohio 9/25/2009) Order enlarging the record.

• People v. Laurence Lovejoy,  2009 Ill. LEXIS 1302 (Ill 9/24/2009) The People committed a discovery violation in not turning over certain purported conclusions reached by its experts.  Specifically, the prosecution furnished in discovery an expert’s report indicating that the substance in which a footprint, linked to the Defendant, was made was not blood,  at trial, however, the expert would testify the substance in which the print was made was indeed blood.  The trial court denied defense requests to strike the testimony, grant a continuance to bring in a defense expert, and reopen proofs.  The State supreme court orders a new trial ordered in light of the discovery violation and because the Defense's request for a continuance should have been granted.

• United States v. Alfonso Rodriguez, Jr.,  2009 U.S. App. LEXIS 20921 (8th Cir 9/22/2009) (dissent) Relief denied on this direct appeal, most notably on, the Government's closing, its denigration of mitigation, and its use of banned argument (including arguing nexus between mitigation and the events of the crime). The Clerk's Office notes that the "[d]istrict court did not err in denying defendant's motion for a change of venue based on pretrial publicity; court did not abuse its discretion by denying defendant's request for additional funding for further venue studies; jury selection plan did not systematically exclude minorities and did not violate defendant's right to a fair and impartial jury; district court did not err in denying defendant's Batson challenges as the government offered race- neutral grounds for its strikes; district court did not err in excluding two venire persons who expressed reservations about their ability to impose the death penalty; no error in admitting acid-phosphate evidence under Rule 702; no err in admitting evidence of defendant's two prior sexual assault convictions; no error in admitting victim impact statements during the penalty phase of this death penalty case; victim's father's act of shaking hands with the prosecutor after the completion of his testimony did not improperly bolster the father's testimony or suggest that the family desired a death sentence; prosecutor's comments did not misstate the law concerning the burden of proof for mitigating factors and did not direct the jurors to disregard the factors if they did not have a nexus to the killing; government's comments about sentences for kidnapping and kidnapping resulting in murder misstated the law, but did not require a new trial; prosecutor's comment regarding the effect a death sentence might have on defendant's family were not improper in context of the court's comments and the prosecutor's clarification of the argument; in any event, the jury found the impact on defendant's family was a mitigating factor, thereby showing it did not disregard the factor as irrelevant; prosecution's comments on the fact that defendant offered to plead guilty in exchange for a life sentence (thereby showing the mitigating factor of acceptance of responsibility) did not prejudice defendant or require a mistrial; while the prosecution should not disparage the defendant's mitigation evidence by arguing that he was just "put[ting] stuff up and hop[ing] it sticks," or suggesting counsel was "selling" the case, the comments did not require a new trial; asking the jurors to imagine what the victim went through was permissible; while asking the jurors to imagine the victim's "raw fear" was an impermissible "golden rule"argument, as the government did not produce any evidence of her fear, the comments did not affect defendant's substantial rights; a prosecutor's brief claim to "speak for" the victim is improper if, in the context of the surrounding statements, it appeals excessively to the jurors' emotions; here, however, the surrounding statements focused on the government's case, not sympathy for the victim or her family, and the comment was not improper; any error in the prosecutor's comments characterizing defendant's prior criminal history for sexual assault was harmless; no error in admitting defendant's prior convictions to establish the aggravating factor in 18 U.S.C. Sec. 3592(c)(4) as the previous victims' testimony established they suffered serious bodily injury during defendant's sexual assaults; no error in penalty-phase instructions; constitutional challenges to federal death penalty rejected. Judge Melloy, concurring in part and dissenting in part."

• Mack Arthur King v. State, 2009 Miss. LEXIS 449, (Miss 9/24/2009 ) (dissent) Relief denied on a substantial Ake v. Oklahoma challenge as to experts and  "the opportunity to fully develop evidence of mental retardation." Other claims on which relief is denied include: A.) "Mississippi's lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment;"  B.) "The trial court erred in failing to allow presentation of mitigation evidence;" C.) Ineffective assistance of counsel ("King asserts that counsel was ineffective for failure to: 1) challenge the sufficiency of the indictment; 2) preserve the issue of residual doubt for appeal; 3) challenge Mississippi's lethal injection protocol; 4) raise Panetti v. Quarterman on rehearing; and 5) properly litigate King's mental retardation claim."); D.) King is mentally retarded as defined by state case law; E.) Cumulative error; and  F.) Proportionality.

• Jonathan Kyle Binney v. State,  2009 S.C. LEXIS 463 (S.C. 9/24/2009)(dissent) "In this case, we granted a writ of certiorari to review an order of the post-conviction relief (PCR) court denying Petitioner's motion for (1) the return of his trial file from the Attorney General's Office (AGO) and (2) the disqualification of the AGO attorneys who viewed the file. Petitioner argues that his attorney-client privilege was violated when, after he filed an application for PCR, trial counsel turned over his entire trial file to the AGO.  We find that Petitioner's attorney-client privilege was not violated by the disclosure of his entire trial file to the AGO and affirm the PCR court's order." "Petitioner completely waived his attorney-client privilege pursuant to S.C. Code Ann. § 17-27-130 because the allegations made in his application for PCR were so broad as to encompass in effect nearly the entire scope of trial counsel's obligations in Petitioner's defense."

• Christopher Coleman v. Thaler,  2009 U.S. App. LEXIS 20991 (5th Cir 9/22/2009)(unpublished) The use of Rule 60(b) in this case was tantamount to successive petition.

• Arthur Tyler  v. Strickland (Cooey II v. Strickland),  2009 U.S. App. LEXIS 21140 (6th Cir. 9/23/2009) (unpublished) Lethal injection challenge denied in this post-"Broom botch" case to Ohio death row inmate holding that Circuit precedent does not recognize exceptions to the circuit precedent sought by Tyler.  

• Duane Buck v Thaler, No. 06-70035 (5th Cir 9/25/2009)(unpublished) Application for COA denied on  "whether he was deprived of due process or equal protection by the prosecution’s reference to Dr. Quijano’s testimony citing race as a future-dangerousness factor."

• Michael James Jackson v. State, 2009 Fla. LEXIS 1578 (FL 9/24/2009) Relief denied on "the following issues: (1) whether the trial court erred in denying Jackson‘s motion for judgment of acquittal; (2) whether the trial court erred in failing to suppress evidence found in a locked safe inside a South Carolina motel room; (3) whether the trial court erred in failing to suppress recordings of telephone calls made by Jackson while he was incarcerated in South Carolina; (4) whether the trial court erred in admitting evidence that Jackson solicited his cellmate to assist him in escaping from jail; (5) whether the trial court erred in introducing the out-of-court statements of a non-testifying codefendant in violation of Jackson‘s confrontation rights; (6) whether the trial court erroneously gave great weight to the jury‘s recommendation without providing an alternative means for the jury to be advised of the available mitigation evidence; (7) whether this Court‘s comparative proportionality review is unconstitutional; (8) whether Jackson‘s death sentences are disproportionate; and (9) whether Florida‘s capital-sentencing scheme violates due process, the Sixth Amendment, and Ring v. Arizona."

• Ray Jackson v. State, 2009 Fla. LEXIS 1577 (FL 9/24/2009) "On appeal, Jackson presents the following claims: (1) he is entitled to a new trial because of improper impeachment by the State coupled with improper argument to the jury by the prosecutor; (2) the trial court erred in allowing into evidence matters that were irrelevant and prejudicial; (3) the trial court erred in denying Jackson's request for an instruction regarding circumstantial evidence; (4) the trial court erred in denying Jackson's motion for judgment of acquittal on the ground that evidence failed to show that the victim died by the criminal agency of another; (5) the trial court erred in denying Jackson's requested jury instructions in the penalty phase; (6) the trial court imposed the death penalty upon an erroneous finding that the murder was committed in a cold, calculated, and premeditated manner (CCP); and (7) Jackson's sentence of death is disproportionate."

• William Matthew Wilson v. State, 2009 Miss. LEXIS 450  (Miss 9/24/2009)   "Wilson raises five assignments of error for this Court’s review: (1) whether the trial court abused its discretion and arbitrarily refused to accept the first guilty plea on March 5, 2007, thus preventing Wilson from accepting the plea-bargain agreement for life imprisonment, or in the alternative, Wilson was denied effective assistance of counsel that resulted in his loss of the enforcement of the original plea-bargain agreement, all in violation of the state and federal constitutions; (2) whether the prosecution committed misconduct by improperly cross-examining a mitigation witness, thus depriving Wilson of a fundamentally fair sentencing hearing; (3) whether the admission of testimony by Dr. Hayne was improper and a result of ineffective assistance of counsel; (4) whether the victim impact testimony was improper and in violation of Wilson’s constitutional rights; and (5) whether cumulative error requires reversal of Wilson’s conviction and death sentence."

• State v. Ronald Davis, 2009 Ohio 5175; 2009 Ohio App. LEXIS 4385 (Ohio 5th App 9/24/2009) "[T]he trial court was without jurisdiction to hear Appellant's motion for new trial . . . .the trial court did not err in denying Appellant's request for leave to file said motion."

• State v. Rodriguez,  2009 Ore. LEXIS 287 (Ore 9/24/2009) State mandatory minimum disproportionate under Article I, Section 16 of the state constitution.

• Gattis v. Phelps,  2009 U.S. App. LEXIS 20402 (3rd Cir 9/14/2009)(unpublished)  Remand ordered on section 1983 claim as to Delaware death row inmate's access to certain "First Amendment" materials. "Here, the District Court dismissed Gattis' complaint during the § 1915 screening process, assuming that administratively segregated prisoners are subject to the same rationale as the plaintiffs in [prior cases]. On remand, the District Court should consider whether the defendants should be afforded an opportunity to develop the factual record and explain how, if at all, the regulation reasonably applies to inmates in Gattis' situation."

• Wagner v. Smith, No. 07-2129 (6th Cir 9/24/209) "In habeas proceedings arising from petitioner's murder conviction, district court's denial of relief is vacated and remanded as three of petitioner's claims have not been properly exhausted because the claims were not fairly presented to the state courts." [via FindLaw]

• US v. Katz, No. 08-2341 (7th Cir 9/22/2009) "In a prosecution for possession of firearm by a felon, district court's denial of defendant's motions for judgment of acquittal and for a new trial is reversed and remanded for the district court to enter a judgment of acquittal on the felon-in-possession count as the evidence was not sufficient to support the verdict." [via FindLaw]
• US v. Gray, No. 08-3598 (8th Cir 9/21/2009) "Defendant's firearm possession conviction is reversed where the district court failed to inform defendant, prior to accepting his guilty plea, of the maximum sentence he could face if found to be an armed career criminal under 18 U.S.C. section 924(e), or of the court's obligation to calculate the applicable Sentencing Guidelines range and to consider such range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. section 3553(a)." [via FindLaw]
  

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