• Wellons v. Hall, No. 09–5731; 2010 U.S. LEXIS 762 (1/19/2010)  Our earlier coverage.  “In a capital habeas matter, the petition for certiorari is granted and the court of appeals’ order is vacated and remanded where the court of appeals incorrectly held that the habeas petition, which claimed that petitioner was denied discovery into the issue of whether there had been improper communications between the judge and jury, was procedurally barred based on an insufficient record, contrary to Cone v. Bell, 556 U.S. ___ (2009).”  [FindLaw] “Finding that an inmate’s claims of misconduct by jurors, the judge, and a bailiff during the inmate’s capital trial were procedurally barred was error since a state court’s refusal to review the merits of the claims did not bar federal habeas review and reconsideration was thus required of whether the inmate was entitled to an evidentiary hearing.” [Lexis]

• Wood v. Allen, No. 08–9156;2010 U.S. LEXIS 763 (1/20/20109) Our earlier coverage. “In capital habeas proceedings, a court of appeals’ reversal of a grant of petitioner’s petition is affirmed where a state court’s conclusion that defense counsel made a strategic decision not to pursue or present evidence of petitioner’s mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” [FindLaw] “Inmate who was convicted of capital murder was not entitled to habeas relief under 28 U.S.C.S. § 2254(d)(2), as it was not unreasonable for a state court to have determined that the inmate’s attorneys made a strategic decision not to investigate and present evidence at the penalty phase regarding the inmate’s alleged mental retardation.” [Lexis] 

• State ex rel. Andrew Lyons v. Lombardi, 2010 Mo. LEXIS 9 (1/26/2010) Relief granted under Atkins. "Under the current Diagnostic and Statistical Manual of Mental Disorders, significantly subaverage intellectual functioning is an IQ of 61 to 70, which is the range in which Lyons tested. There is substantial evidence to support the master’s findings that Lyons had continual extensive related deficits in the adaptive behaviors of communications and functional academics, noting, for instance, that Lyons’ attorneys and experts had difficulty communicating with him; that he cannot read, write or spell; that he was in special education classes; and that he spent three consecutive years in the 10th grade. Though scant, the records Lyons offered to document his conditions were sufficient to support the master’s conclusion that Lyons’ conditions were not fabricated recently and were documented before Lyons turned 18." [Clerk's Office]

• Joseph E. Corcoran v. Levenhagen, 2010 U.S. App. LEXIS 1770 (7th Cir 1/27/2010)  On remand from the SCOTUS.  "The trial court erred in using in its "weighing" calculations nonstatutory aggravators in contravention of state law.  "Nothing in this opinion prevents Indiana from adopting a rule [ ] permitting the use of non-statutory aggravators in the death sentence selection process."
  

• Leon Winston v. Kelly, 2010 U.S. App. LEXIS 1845 (4th Cir 1/27/2010) (dissent)  Remand for a hearing on his Atkins claim.  An interesting discussion for habeas wonks on the default and factual development in state court.  Dissent would have held trial counsel's performance ineffective and granted relief.  t CapDefenseNetwork's "week at a glance" should have more shortly.
  

• Ken E. Lott v. Florida Attorney General,   2010 U.S. App. LEXIS 1571 (11th Cir 1/25/2010) "[H]abeas petitioner had not made a substantial showing of the denial of a constitutional right, and therefore was not entitled to a certificate of appealability from the denial of a habeas petition. Lott claimed that his counsel was ineffective for failing to put on an alibi defense. However, counsel investigated the alibi defense and found no support for it. A potential alibi witness declined to testify because she would not “lie for Lott anymore.” Moreover, Lott himself voluntarily chose not to testify in support of his alibi defense. " [Defense Newsletter]

• Darrick Walker v. Kelly, 2010 U.S. App. LEXIS 1844  (4th Cir 1/27/2010) (dissent) Relief denied on Atkins claim. Further, in federal court a petitioner is not entitled to a jury trial on the issue of mental retardation. "Dissenting in part, Judge Gregory found serious errors by the district court in its consideration of Walker’s Atkins claim including violations of Walker’s right to procedural due process. In Gregory’s view, a remand is required to allow proper consideration of the Atkins claim." [via CapDefenseNet]
  

• State v. Carman Deck, 2010 Mo. LEXIS 6 (Mo 1/26/2010)(plurality) The Court sharply fractures on the standards to be used for proportionality review (all capital murder cases or merely those where death is imposed). Additionally, "[t]he man is not entitled to mandatory resentencing to life in prison because of what he claims were trial errors committed during the penalty phase of his previous trial. The trial court did not abuse its discretion in striking two potential jurors for cause based on their statements that they could not sign a verdict form imposing a death sentence. The state’s arguments about the man’s future dangerousness, based on a prior conviction for aiding an escape, did not violate due process or the applicable statute or rule, and its closing arguments did not constitute reversible error causing manifest injustice. The trial court did not err in admitting certain items seized from the man’s vehicle or subsequent statements he made to the police. No prejudice resulted from the trial court’s failure to read one instruction, as the information was conveyed in other ways, or in submitting to the jury other instructions patterned after model approved instructions. The state did not fail to give the man notice, before trial, of the statutory aggravating circumstances it intended to prove." [Clerk's Office]

• State v. Dale Carter Shackelford,  2010 Ida. LEXIS 5 (Idaho 1/20/2010) Affirming the trial court’s grant of relief “vacating Shackelford’s sentence and its determination that Shackelford must be resentenced by a jury under Ring. Without analyzing whether Ring requires a jury to weigh mitigating factors, this Court finds that the jury was required to find the aggravator, and such a finding was not explicit in the first-degree murder verdicts.”

Week of January 18,  2010: In Favor of the State or Government

• Steven Smith v. Bradshaw, 2010 U.S. App. LEXIS 1021 (6th Cir. 1/19/2009) “A denial of a request for habeas relief by a defendant convicted and sentenced to death for raping and murdering a six-month-old baby is affirmed where: 1) defendant’s claim that the prosecutor improperly commented on his failure to testify during the guilt phase is procedurally defaulted and defendant cannot excuse the default through the ineffectiveness of counsel because he cannot show that counsel’s failure to object to this one comment — thereby drawing attention to it — was deficient; 2) defendant’s claim that the penalty instructions violated Caldwell v. Mississippi is procedurally defaulted; 3) defendant’s counsel was not ineffective for failing to object to the penalty instructions; and 4) a state court’s analysis under Beck was reasonable as it is well established that a lesser-included offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant’! s intent.” [via FindLaw]

• David Eugene Johnston v. State,  2010 Fla. LEXIS 62 (FL 1/21/2010) “Denial of defendant’s request for postconviction relief, following his conviction for first-degree murder and death sentence, is affirmed where: 1) trial court applied the correct newly discovered evidence standard and determined, in light of all the now available and admissible evidence, that the newly discovered evidence would not exonerate defendant; 2) a a report in a scientific journal presented by defendant does not constitute newly discovered evidence; 3) postconviction court did not err in denying production of the fingerprints and shoe print evidence for additional testing, and that denial of the motion did not deprive defendant of due process; 4) no specific procedures are mandates in the clemency process and defendant has been provided with the clemency proceedings to which he is entitled; 5) defendant’s claim of mental illness was procedurally barred, and even if the claim were not procedurally barred, it is without merit; 6) defendant’s claim that execution after! an inordinate length of time on death row is unconstitutional is without merit; and 7) defendant’s claim that he is entitled to relief due to the leg shackles, when he insisted on wearing more noticeable belt restraints, is without merit.” [via FindLaw] “Death row inmate’s motion under Fla. R. Crim. P. 3.851 was properly denied because there was no proof that additional testing would result in his acquittal, mental illness was not a per se bar to execution and any delay in carrying out his sentence was due to his own action challenging his conviction and sentence.”     [Lexisone]

• Hodges v. State,  2010 Fla. LEXIS 57 (FL 1/11/2010) Lethal injection challenge summarily denied.

• Commonwealth v. Cam Ly,  2010 Pa. LEXIS 18 (Penn 1/19/2010) (dissent) Petition for rehearing summarily denied. The dissents notes that the “Applicant challenges the determination that an extra-record claim must be raised by direct-appeal counsel on pain of waiver. According to Applicant, it is not possible for such counsel to conduct the essential investigation and preparation of extra-record claims, since counsel lacks the resources and authority (i.e., subpoena power) necessary to conduct an adequate inquiry. Applicant also complains that he raised this “resources” issue in his post-conviction appellate brief, but the Court neglected to address it in its opinion. According to Applicant, particularly in light of the strong post-conviction evidence of constitutionally deficient stewardship on the part of his trial counsel, the circumstances amount to ‘a complete breakdown in the imposition of capital punishment in Pennsylvania, and the consequent imposition of an ipso jure unreliable, and thereby unconstitutional, sentence of death’.”