Capital Defense Weekly

Leading off this edition are two rather straightforward decisions, State v. Thomas Sparks, Jr. from the Louisiana Supreme Court and Ex parte Andrew Anthony Apicella from the Alabama Supreme Court. In Sparks a remand for an evidentiary hearing is ordered on the issue of trial counsel’s performance, however, the Court’s disposition of the matter suggests that if the trial court grants relief the State will not be allowed to appeal. In Apicella that Court held that the postconviction court below erred in dismissing a “third petition” rather than permitting him to amend a then pending application before the courts below.

Two Supreme Court cases are also noted. In Brown v. Plata, in an unusually blunt language, the Court holds the Eighth Amendment requires something more than warehousing inmates, while “prisoners may be deprived of rights that are fundamental to liberty.. . . [they] retain the essence of human dignity inherent in all persons.” In Kentucky v. King the Court held the Fourth Amendment’s exigent circumstances exception is broad enough to permit evidence seized when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

In the news, the Arizona Supreme Court on Wednesday considered briefly an appeal by convicted murderer Donald Beaty's last-minute arguments, then lifted the stay, paving the way for Beaty's execution by lethal injection. The current issue of the National Law Journal has a must-read on habeas corpus entitled "The gutting of habeas for state defendants," by John Blume, Sheri Johnson and Keir Weyble; professors at Cornell Law School. China has apparently introduced new standards to reduce the number of criminals it executes. with the Supreme People's Court -- the highest in China -- ordering lower courts to suspend death sentences for two years where there is no need for "immediate execution." In Illinois pending DNA tests could exonerate nine men in two separate murder cases. Berkeley Law’s Death Penalty Clinic has received the 2011 Abolition Award from Death Penalty Focus. The Ohio Department of Rehabilitation & Corrections recommends, 7-0 clemency for Shawn Hawkins. The Nebraska Supreme Court has stayed Carey Moore's June 14 execution date. Texas Senate OKs bill standardizing eyewitness procedures to help prevent wrongful convictions and the bill is off to the Governor’s desk for signature. As always, Steve Hall has the wrap-up of lethal injection developments.

SCOTUS

Bobby v. Harry Mitts, 2011 U.S. LEXIS 3368 (5/2/2011) “Jury instructions given during the penalty phase of prisoner’s trial were not contrary to clearly established federal law under AEDPA because jurors were instructed that if they did not find that aggravating factors outweighed mitigating factors–and therefore did not recommend the death penalty–they would choose from two life sentence options.” [via SCOTUSBlog]

Brown v. Plata, 2011 U.S. LEXIS 4012 (5/23/2011) In an unusually blunt language Court holds the Eighth Amendment requires something more than warehousing inmates.

Kentucky v. King, No. 09- 1272 (5/16/2011) “In a Fourth Amendment dispute involving the scope of the exigency rule, judgment of the state supreme court is reversed where the rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment” [via FindLaw]

Week of May 16, 2011: In Favor of the Prosecution or Warden

James Belcher v. Secretary, 2011 U.S. App. LEXIS 10268 (5/20/2011)(unpublished) Relief denied on “1. Whether Belcher’s trial counsel was constitutionally ineffective for failing to object to prosecution statements in violation of Caldwell v. Mississippi 2. Whether Belcher’s trial counsel was constitutionally ineffective for failing to object to prosecution questions during the penalty phase aimed at proving a non-statutory aggravating circumstance — that prison life was not harsh—unrelated to the crime or the defendant. 3. Whether the combined effect of these instances of ineffectiveness cumulatively denied Belcher effective assistance of counsel. After careful review of the record and the parties’ arguments, and with the benefit of oral argument, we affirm.

Larry Matthew Puckett v. Epps, 2011 U.S. App. LEXIS 10158 (5th Cir 5/19/2011) Relief denied on claims relating to Batson, as well as the prosecution’s comment on post-Miranda silence.

Daniel Lee Bedford v. Bobby, 2011 U.S. App. LEXIS 10018 (6th Cir 5/16/2011) “Death-row inmate neglected numerous opportunities to seek relief in the courts under Ford until eight days before his execution when he filed a Ford claim in state court; because he offered no cognizable reason for waiting to bring the claim to court, the district court abused its discretion in granting him a stay of execution on his Ford claim.” [via LexisOne]

Richard A. Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir 5/17/2011) Trial counsel’s “decision to cease further investigation into Leavitt’s already heavily analyzed mental health was entirely rational. Leavitt has not made out his claim that [counsel’s] assistance was constitutionally deficient. Even if he had, the gruesome nature of the crime, coupled with the relatively weak additional evidence that might have been revealed had an MRI been granted, leads us to conclude that any ineffectiveness was not prejudicial.”

William Gerald Mitchell v. Epps, 2011 U.S. App. LEXIS 9916 (5th Cir 5/16/2011) “Mitchell has requested a COA from this court authorizing him to appeal the denial of relief on his claims that he received ineffective assistance of counsel and that he is mentally retarded and ineligible for execution. Because the district court’s decision denying relief on these claims is not debatable among reasonable jurists and Mitchell’s claims are not adequate to deserve encouragement to proceed further, we deny his request for a COA.”

Robert W. Jackson v. State, 2011 Del. LEXIS 264 (Del 5/17/2011) “Trial counsel’s sealed sidebar negative comment about defendant before withdrawing did not entitle defendant to postconviction relief because his Sixth Amendment right to counsel was not denied, as (1) no prejudice was presumed, as there was no complete failure of counsel, and (2) no prejudice was shown, as the comment did not affect his sentence.” [via LexisOne]

Jamel Daniels v. State, 2011 Del. LEXIS 257 (Del 5/16/2011) Relief denied on “claims that a) his trial counsel provided ineffective assistance by failing to retain an expert to conduct independent DNA testing; b) his trial counsel provided ineffective assistance by failing to assert his right to a speedy trial; and c) the prosecution breached its duty to disclose exculpatory evidence to the defense.”

Daniel Lee Bedford v. State, 2011 Ohio 2352 (Ohio 1st app 5/16/2011) Ford stay denied.

Week of May 9, 2011: In Favor of the Accused or Condemned

State v. Thomas Sparks, Jr. (a/k/a Abdullah Hakim El Mumit), 2011 La. LEXIS 1122 (La. 5/10/2011) Remand ordered to conduct an evidentiary hearing on failure to investigate and present mitigation evidence

Ex parte Andrew Anthony Apicella; (In re: Andrew Anthony Apicella v. State of Alabama), 2011 Ala. LEXIS 74 (Ala 5/13/2011) “As postconviction relief (PCR) court’s dismissal of inmate’s second PCR petition was reversed, when he then filed his third petition, no final judgment was in effect; thus, under Ex parte Rhone, fact that his third petition stated a new claim was not grounds to deny him his right under Ala. R. Crim. 32.7 to file an amended PCR petition.” [via LexisOne]

Week of May 9, 2011: In Favor of the Prosecution or Warden

Ronnie Paul Threadgill v. Thaler, 2011 U.S. App. LEXIS 9787 (5th Cir 5/12/2011) Relief denied on claim “that he was denied effective assistance of counsel under the Sixth and Fourteenth Amendments when his trial counsel failed to adequately investigate and challenge the State’s use of an extraneous offense” during the punishment phase of his trial. Threadgill appealed and seeks a COA as to two additional issues: (1) “[w]hether [he] was denied effective assistance of counsel under the Sixth and Fourteenth Amendments [when his] trial counsel failed to request a lesser-included offense instruction on felony murder” and (2) “[w]hether [he] was denied due process of law when the trial court failed to charge the jury on the lesser-included offense . . . of felony murder.” Relief and COA denied.

James Harrison v. Gillespie, 2011 U.S. App. LEXIS 9624 (9th Cir 5/10/2011) (as amended) (en banc) “Double Jeopardy Clause did not require trial judge, prior to discharging deadlocked jury, to poll the jury to determine if it had rejected the death penalty because jury may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting defendant of the death penalty.” [via LexisOne]

Comm v. Ronald Gibson, 2011 Pa. LEXIS 1075 (Penn 5/12/2011) “[T]he new evidence in mitigation, even subsuming the intoxication evidence, is not reasonably likely to have swayed a juror to alter his or her vote. While we do not diminish the childhood troubles or substance abuse evident in Appellee’s background, the aggravation found by the jury was powerful: Appellee fired three rounds into a crowded bar, instantly killing Vernae Nixon, mortally wounding Officer Dukes, and imposing a grave risk of death upon other patrons, all during an attempted robbery. Against these aggravating factors, the life-history and mental-health mitigation is not compelling for reasons already discussed, including that it placed substantial emphasis on Appellee’s decision to abandon educational and professional opportunities in favor of a life on the streets using alcohol and drugs, carrying a gun, and selling illegal drugs, and on his voluntary actions in becoming intoxicated before committing the murders”

State v. Kenneth Harry Justus, 2011 S.C. LEXIS 173 (S.C. 5/9/2011) ”This is a direct appeal in a death penalty case. Appellant raises one issue, asserting the trial court abused its discretion in disqualifying one of his two appointed counsel two years prior to his guilty plea to murder. We find no abuse of discretion and affirm.”

Week of May 2, 2011: In Favor of the Prosecution or Warden

United States v. Aquilia Marcivilcci Barnette, 2011 U.S. App. LEXIS 9029 (5th Cir 5/3/2011) On return from remand relief denied as to: [A] “whether the district court erred or otherwise abused its discretion in the manner in which it conducted the renewed Batson hearing after our remand so as to deprive Barnette of fundamental fairness, and specifically by: (1) reviewing the government’s annotated copies of juror questionnaires in camera and refusing to order their disclosure to Barnette; (2) refusing to provide clean copies of the questionnaires to Barnette; (3) refusing to allow cross-examination of the trial prosecutors; and (4) refusing to provide the prosecutors’ “post-it” notes accompanying the jury questionnaires to Barnette; [B] “whether the district court clearly erred in finding and concluding that Barnette had failed to demonstrate that the prosecution’s facially neutral explanations for the government’s strikes of one or more African-American jurors failed to show racial animus violative of Batson;” and [c] “whether the district court clearly erred in finding and concluding that Barnette had failed to establish his Batson claim through comparative juror analysis.”

Michael Bascum Selsor v. Workman, 2011 U.S. App. LEXIS 8927 (10th Cir 5/2/2011) Filed under “be careful what you ask for,” Appellant in the seventies had his death sentence for the instant offense vacated as the Oklahoma sentencing scheme violated federal constitutional norms. In the nineties on federal habeas review he was able to get his initial conviction reversed. On retrial he is again convicted and again sentenced to death. Relief denied on the obvious claims, and several others: “(1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim’s family members regarding the appropriate sentence violated his rights under the Eighth Amendment.”

Ex parte Ruben Gutierrez, 2011 Tex. Crim. App. LEXIS 595 (Tex. Crim. App. 5/4/2011) “In sum, granting DNA testing in this case would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder. Having overruled all of appellant’s points of error, we affirm the convicting court’s orders denying the request for appointment of counsel and denying the motion for forensic DNA testing pursuant to Texas Code Criminal Procedure Chapter 64.”

Noncapital

Jonathan Andrew Doody v. Ryan, 2011 U.S. App. LEXIS 9102 (9th Cir 5/4/2011) On remand from the SCOTUS, Miranda warnings here that “completely obfuscated the core precepts of Miranda, was inadequate.”

Still sorting through

State v. Clarence Wayne Dixon, 2011 Ariz. LEXIS 23 (Az 5/6/2011)

State v. Wayne Benoit Prince, 607 Ariz. Adv. Rep. 4 (Az 5/6/2011)

People v. Sean Venyette Vines, 2011 Cal. LEXIS 4978 (Cal 5/19/2011)

James Coddington v. State, 2011 OK CR 17 (Okla. Crim. App. 5/13/2011)

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OPEN RESEARCH DATA: We've been at this since 1997, thanks to all those whose time, efforts, and contributions have made it possible over the years. Search terms for the weekly are,: " "capital habeas" or "capital postconviction" or "death penalty" or "capital murder" or "sentenced to death" or "penalty phase" or "special questions" or "sentence of death" or "death sentence" or "capital punishment" or "witherspoon" or atkins," on Lexisone.com. Please note the terms dramatically "overproduce" results. FindLaw.com & various listservs are also used to cross-check results. Execution and other news information derived from DPIC, Steve Hall, Rick Halperin, & media accounts.
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