CAPITAL DEFENSE WEEKLY

Leading off this edition is Sean Carter v. Bradshaw from the Sixth Circuit.  A split panel in Carter holds that Petitioner incompetent to proceed in federal habeas proceedings. Specifically,  "Carter had refused to meet with his attorneys to discuss collateral attacks on his conviction" and his "attorneys also claimed that Carter could not understand the proceedings or assist counsel in his defense." The panel's majority found that a district court may hold a competency evaluation for habeas proceedings and the court below did not abuse its discretion in so doing.  Further, "the district court also did not abuse its discretion in finding that there was reasonable cause to believe that Carter was incompetent, and in further finding that he was incompetent to assist his counsel." "[W]ith respect to Carter's ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent. . . The district court must examine the remainder of Carter's claims to determine whether Carter's assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims. "

In the news, DPIC notes that “[i]n a clear national trend, seven states (Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina) have used pentobarbital instead of sodium thiopental in their executions in 2011.”  The Arizona Supreme Court briefly stayed the execution of Donald Beaty after the state Department of Corrections made last-minute changes to the execution protocol, Beaty was subsequently executed.  A new biography of Clarence Darrow by John A. Farrell known for his eloquence in defending unpopular clients and in securing reprieves for those condemned to death, is out Clarence Darrow: Attorney for the Damned.  In Pennsylvania, juries opted for the death penalty in just 3% of first-degree murder cases over the past four years.   NPR recently examined psychopathy & the misuse of test instruments in the court system obscure and largely irrelevant to understanding crime.The Supreme Court has lifted Cleve Foster’s stay.

As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. - k

Pending Executions
June
1     Gayland Bradford* (Tex)
14   Shawn Hawkins* (Ohio)
15   John Balentine* (Tex)
16   Lee Taylor* (Tex)
16   Eddie Powell III* (Ala)
16   Ricky Gray (Va)
21   Milton Mathis* (Tex)
30   Richard Bible* (Az)
July
7    Humberto Leal* (Tex)
12   Marcel Williams* (Ark)
19   Kenneth Smith* (Ohio)
19   Thomas Smith* (Az)
20   Mark Stroman* (Tex)
August
10 Martin Robles* (Tex)
16 Brett Hartman* (Ohio)
16 Gary Haugen (Ore)
23 Randall Mays* (Tex)
30 Ivan Cantu* (Tex)
31 Edward Edwards (Ohio) (died of natural causes)

Stays
May
24   Robert Simon, Jr.*(Miss)
June
14   Carey Moore* (Neb)
22   Frank Williams* (Ark)

Executions
May
3     Cary Kerr* (Tex)
6     Jeffrey Motts* (SC)(V)
10   Benny Stevens* (Miss)
17   Daniel Bedford* (Ohio)
17   Rodney Gray* (Miss)
19   Jason Williams* (Ala)
25   Don Beaty* (Ariz)
*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [via DPIC]

SCOTUS 

  • 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 23, 2011: In Favor of the Accused or Condemned

  • Sean Carter v. Bradshaw, 2011 U.S. App. LEXIS 10572  (6th Cir. 5/26/2011) (dissent) Petitioner incompetent to proceed in federal habeas proceedings

Week of May 23, 2011: In Favor of the Prosecution or Warden

  • Norberto Pietri v. Fl. Dep’t of Corr.,  2011 U.S. App. LEXIS 10573 (11th Cir 5/25/2011)  Affirming “the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder. The Court rejected the argument that counsel were ineffective for failing to put on an “metabolic intoxication” defense. The Court noted that Pietri did not show that he was intoxicated at the time of the murder, and that “metabolic intoxication” was not a cognizable under Florida law at the time of Pietri’s trial. The Court also rejected the argument that counsel were ineffective at the penalty phase for failing to present mitigating evidence. The Court found that trial counsel strategically decided not to present some of the mental health experts they consulted.”

  • Donald Edward Beaty v. Brewer, 2011 U.S. App. LEXIS 10562 (9th Cir 5/25/2011)  “State inmate was not entitled to a stay of his execution based on the state’s intent to use a substitute drug in its lethal injection protocol; an Eighth Amendment claim had been found unlikely to succeed because a risk of severe pain was not shown, and the inmate did not have a Fourteenth Amendment due process right to review protocol changes.” [via Lexisone]

  • Donald Edward Beaty v. Brewer, 2011 U.S. App. LEXIS 10878 (9th Cir 5/27/2011) (denial en banc)(concurrence)(dissent) In concurrence, C.J. Kozinski lays out how to and not to challenge pentobarbital.

  • Ex parte State of Alabama; (In re: Thomas Robert Lane v. State of Alabama), 2011 Ala. LEXIS 82 (Ala 5/27/2011) The trial court removed counsel that Lane liked. “[T]he trial court’s erroneous removal of Lane’s court-appointed counsel was not [however] structural error, and the Court of Criminal Appeals erred in failing to determine whether the trial court committed plain error when it removed Lane’s court-appointed counsel. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this case to the Court of Criminal Appeals for that court to determine whether the trial court committed plain error when it removed Jordan as Lane’s lead counsel.”

  • Zane Jack Fields v. State, 2011 Ida. LEXIS 80 (Ida 5/25/2011)  “This is an appeal from a judgment summarily dismissing an application for post-conviction relief based upon DNA test results and affidavits of trial witnesses. Because the DNA test results did not establish that petitioner did not commit the offense and the affidavits cannot support a claim for post-conviction relief….”

  • Billy Ray Irick v. State, 2011 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. 5/23/2011)   “[D]enial of the inmate’s petition for writ of error coram nobis was proper under Tenn. Code Ann. § 40-26-105(b) because his petition was time-barred and because, even if the claims were timely, he failed to show that if the later-arising evidence been admitted at the original trial that it might have changed the outcome.” [via LexisOne]
  • Comm. v. Ralph Birdsong, 2011 Pa. LEXIS 1160 (Penn 5/26/2011) Relief denied following, what the dissent calls, a cut & paste opinion drawn heavily from the Commonwealth’s brief, sufficiency of colloquy waiver of jury trial, lack of evidentiary support for the court below’s findings, and evidentiary issues before the postconviction court. Substantively, relief denied on claims relating to Brady violations:“(1) Commonwealth witness Andre Kinard was offered immunity from unrelated criminal charges in exchange for his identification testimony against appellant; (2) the Commonwealth placed several key witnesses in a witness protection program, which provided them with free housing, stipends for living expenses, and relocation to another city; (3) electronic surveillance purportedly establishing members of one of appellant's rival drug factions planned to assassinate another drug dealer; and (4) the results of tests comparing appellant's blood and saliva samples with those recovered from the rape victim.” Further, “[a]n inmate failed to show ineffectiveness of trial or appellate counsel where pursuit of a misidentification defense was not unreasonable, the decision not to call witnesses was one of trial strategy, and the inmate validly waived the right to a jury at sentencing and to present mental health mitigation testimony in that proceeding.” [via LexisOne]

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

  • People v. Sean Venyette Vines, 2011 Cal. LEXIS 4978 (Cal 5/19/2011)  Sean Martin summed the case up best when he noted: “when I'm reading the facts, I'm thinking:  "Wait, they sentenced this guy to death?  This looks identical to virtually every single murder that's ever been committed."  A reaction that was only reaffirmed when I read the evidence in aggravation, which was basically none." “ The issues raised by Vines’ attorneys address whether the death penalty is constitutional and relate to the admission of victim impact evidence at the sentencing stage of a capital case.. . . Defense attorneys attempted to assert that the death penalty was unconstitutional and that the long delay between the sentencing at the execution constituted cruel and unusual punishment. Defense attorneys also contested the trial court’s admission of victim impact evidence, namely a home video depicting the victim singing and rapping. Said the court in its opinion: “The medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents.” However, the court noted that such evidence could be introduced, provided the court monitored the jury’s reaction and provided that the evidence contained “nothing inflammatory that would divert the jury from [its] proper function.” In this case, the evidence was found to be properly admitted.The court unanimously rejected the arguments made by Vines’ counsel.” [via FindLaw]

  • David Lee Sanders v. Comm,  2011 Ky. LEXIS 82 (Ky 5/19/2011)  In this exhaustion petition, relief denied  “(1) that Special Judge Gary D. Payne, a Senior Status Judge, was unconstitutionally appointed to preside over his case, and, alternatively, he was not given proper notice of the appointment; (2) that the trial court erred in denying his claim of ineffective assistance of direct appeal counsel; (3) that the trial court erred in denying his claim of ineffective assistance of [postconviction] counsel….” IAC issues involved “(1) that Appellant’s trial was conducted in a prejudicial atmosphere which violated due process; (2) that Appellant’s constitutional rights were violated when the trial court failed to remove two prospective jurors for bias during voir dire; (3) that Appellant was incompetent to stand trial; (4) that the trial court violated due process by failing to hold a hearing to determine whether Appellant was competent to stand trial; (5) that the introduction of Appellant’s statements made while being evaluated at the Kentucky Correctional Psychiatric Center violated his constitutional rights; (6) that Appellant was deprived of his constitutional right to jury sentencing due to the prosecutor’s improper penalty phase statements; (7) that Appellant was incompetent at the time of his sentencing; and (8) that the trial court violated due process by failing to hold a competency hearing for Appellant at the time of his sentencing.”

  • State v. Derrick J. Powell, 2011 Del. Super. LEXIS 223 (Del Super 5/20/2011) Discussing why, on a 7-5 vote for death, the court finds aggravating circumstances preponderate over the mitigating factors.

  • 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.”
Catching up from past editions
  • James Coddington v. State, 2011 OK CR 17 (Okla. Crim. App. 5/13/2011)
    Relief denied, most notably, on whether the trial judge  leaving the bench during the presentation of a videotape offered in mitigation was structural error, and if not, was it harmless beyond a reasonable doubt.

Noncapital of note:

  • Tara Sheneva Williams v. Cavazos,  2011 U.S. App. LEXIS 10345 (9th Cir 5/23/2011) “A hung jury is never a desirable outcome in a criminal trial. When a mistrial results, the interest shared by the State, the defendant, the court, and the public in the efficient administration of justice is diminished. The sacrifice of efficiency for the preservation of liberty is central, however, to the safeguards the Constitution affords criminal defendants. If “[m]en must turn square corners when they deal with the Government,” it is even more true that the government, including the courts, may not cut corners when dealing with man’s freedom. Unfortunately, the trial court cut some corners here. In view of the reasonable possibility that Juror No. 6′s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal, we hold that the removal of Juror No. 6 deprived Williams of her right to a fair trial by jury. We therefore reverse the judgment of the district court and remand with instructions to grant the writ.”

Still sorting through

SMALL PRINT
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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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