We've been gone a few weeks and there is more than a little catching up to do. Leading off is Terrell M. Johnson v. Secretary from the Eleventh Circuit.    The Defense Newsletter's  Tim Cone notes that  the court granted "federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.”

In Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), a federal district court judge has declared that Florida's method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death. Doug Berman @ OSU Law has uploaded the opinion.

In the news, the Arkansas Supreme Court has stayed all executions in that state pending the outcome of a state constitutional claim involving lethal injection and improper delegation of the authority under the separation of powers doctrine. In Rhode Island, Governor Chafee has done the virtually unthinkable,  refused to hand over a state detainee to federal prosecutors to face capital trial, choosing instead to try him in state court. In California, the LA Times notes that the the state is spending roughly $184 million a year on the death penalty above the cost of noncaloric murder and that "taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then." Iowa Law Professor David Baldus has died. DPIC has released Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 covering a fair number of the "hot issues" in capital punishment. Texas has killed Milton Mathis despite unusually strong evidence that he was intellectually disabled. Nevada's Governor has vetoed a cost study bill of the death penalty in that state. In Ohio, Governor Kasich has commuted to life in prison the death sentence of Shawn Hawkins.  DPIC reports that the Atlantic Center for Capital Representation recently petitioned the Pennsylvania Supreme Court to ensure that lawyers appointed in death penalty cases in Philadelphia have adequate resources to defend their clients.

From the Supreme Court, in Balentine v. Texas the High Court granted a stay pending disposition of a cert petition. The Court has granted cert in Martel v. Clair on the issue of how much say should a condemned inmate have in the selection of federal habeas counsel.  At the very end of this edition is the first of two "wrap-ups" of the SCOTUS term, this time looking at cert grants for next term with links to the SCOTUSBlog's links to petition, briefs, and related materials. Term recap of all criminal cases will happen next week in the email edition and sooner on the blog.

This edition was unduly delayed when I got called out, very unexpectedly, to trial.  The "two-three day" "back-up" trial ended up lasting much, much longer. As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. - k

SCOTUS 

• Balentine v. Texas, No. 10-11036 (10A1226) (6/15/2011) Stay granted pending disposition of a cert petition.

• Lee Andrew Taylor v. Texas, No. 10-11056 (10A1236) (6/16/2011) 5-4 denial of cert on a stay petition.
  

Week of June 20, 2011: In Favor of the Prosecution or Warden

• Joseph E. Corcoran v. Wison,  2011 U.S. App. LEXIS 12704 (7th Cir 6/23/2011) “[W]e reinstate and incorporate by reference our earlier opinion in Corcoran v. Buss, 551 F.3d 703, to the extent that it (1) reversed the district court’s judgment granting habeas relief on the basis of the claimed  Sixth Amendment violation; and (2) affirmed the district court’s conclusion that the Indiana courts did not mishandle the issue of Corcoran’s competence to waive post-conviction remedies. As we have noted, Judge Williams joined the panel in rejecting Corcoran’s Sixth Amendment claim but filed a dissent on the competency issue which we also reinstate and incorporate herein by reference. We Remand the case to the district court to permit it to address Corcoran’s remaining grounds for habeas relief.”

• Andrew Richard Lukehart v. State, 2011 Fla. LEXIS 1425 (FL  6/23/2011) Relief denied on claims“that the postconviction court erred in denying his rule 3.850 motion regarding whether: (1) counsel was ineffective for failing to challenge the prior violent felony aggravator during the penalty phase, (2) counsel was ineffective for failing to file a motion to cease Lukehart‘s medication and a motion for continuance, (3) counsel was ineffective for failing to present Dr. Harry Krop during the guilt phase, (4) Lukehart‘s amended postconviction motion should relate back to the filing of his shell motion, (5) counsel was ineffective for failing to include an additional argument in the motion  to suppress, (6) counsel was ineffective for failing to properly argue and object to the jury instructions and the State‘s allegedly improper arguments regarding the instructions, (7) counsel was ineffective pursuant to Caldwell v. Mississippi,(8) counsel was ineffective for failing to present live testimony rather than deposition testimony during the penalty phase, (9) counsel was ineffective for failing to object to allegedly improper prosecutorial comments, (10) the rule prohibiting juror interviews is unconstitutional, (11) Florida‘s lethal  injection protocols are unconstitutional, and (12) cumulative error is present.” Habeas relief likewise denied on “three claims: (1) this Court should revisit its prior proportionality review in light of  Page‘s uncontroverted testimony at the postconviction evidentiary hearing, (2) Florida‘s lethal injection protocol violates that Eighth Amendment, and (3) the inclusion of pancuronium bromide in Florida‘s lethal injection protocol violates free speech.”
  

• Lamar Cornelius Harris v. State,  2011 Md. LEXIS 377 (Md 6/24/2011)  “[C]ourt proceedings have stalled in the preliminary stages due to disagreement about the propriety of the trial judge’s pretrial rulings ordering discovery of certain records and testimony pertaining to Harris’s court-ordered competency evaluation and subsequent in-patient treatment at Clifton T. Perkins Hospital Center. Petitioner ultimately seeks appellate review on the merits regarding the trial judge’s denial of Harris’s motion for a protective order resulting from service of a subpoena on one of Harris’s treating physicians as well as service of a subpoena duces tecum on Perkins Hospital. Because we conclude that the discovery orders are not appealable at this time, we do not address the merits of Harris’s challenges to those orders.”

• People v. Charles Edward Moore, 2011 Cal. LEXIS 6170 (Cal 6/23/2011) I’m still working through this one, although Shaun Martin’s analysis may be the best take away.

Week of June 13, 2011: In Favor of the Accused or Condemned

• Terrell M. Johnson v. Secretary,  2011 U.S. App. LEXIS 11996 (11th Cir 6/14/2011)  “ Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.” [via Tim Cone]

• Charles & Jennifer Bowen v. Hon. Carnes, 2011 Tex. Crim. App. LEXIS 827 ( Tex. Crim. App. 6/15/2011) “Trial court erred in interfering with charged individuals’ Sixth Amendment right to retain counsel of their choosing. The disqualification of counsel based on his prior representation of a State witness was an abuse of discretion as the witness was not a current client, the potential for a conflict was not serious, and mandamus relief was ordered.” [via LexisOne]
  

Week of June 13, 2011: In Favor of the Prosecution or Warden

• Robert Lark v. Secretary, 2011 U.S. App. LEXIS 12107 (3rd Cir 6/16/2011) “ Inasmuch as we have determined that the District Court improperly applied Batson, we will vacate its order, remand the case to the District Court, and direct that the Court perform the third step of the Batson analysis. Both parties make arguments regarding the McMahon tape’s relevance and the Baldus study’s reliability. However, inasmuch as the District Court explicitly declined to consider these issues  we do not address them on this appeal, though they may become significant on the remand. The District Court based its decision on the pattern of the prosecutor’s strikes and Carpenter’s inability to articulate a justification for three of those strikes. Any other evidence or arguments which relate to intentional discrimination, such as juror comparisons, properly are made at the third Batson step and we will not consider them at this time.”

• Tai A. Pham v. State, 2011 Fla. LEXIS 1346 (FL 6/16/2011) “Relief denied on “seven issues:  (1) that the prosecutor‘s improper statements during closing arguments entitle him to a new trial, (2) that juror misconduct entitles him to a new penalty phase, (3) that the trial court erred in finding the prior violent felony aggravator, (4) that his death sentence is unconstitutional because the aggravating circumstances were not alleged in the charging document, (5) that the trial court erred in finding the murder was heinous, atrocious, or cruel (HAC), (6) that the trial court erred in finding the murder cold, calculated, and premeditated (CCP), and (7) that his death sentence is not proportionate. “

• Thomas Wiliam Rigterink v. State, 2011 Fla. LEXIS 1343 (FL 6/16/2011) (dissent) On return from remand, majority holds that despite vacateur of conviction for Miranda issues, on return from remand the Miranda warnings were sufficient.

• Alphonso Stripling v. State, 2011 Ga. LEXIS 479 (Ga. 6/13/2011) “[T]he trial court erred regarding the burden of proof to be applied to Stripling’s claim of mental retardation, that the trial court did not err by ruling that standard criminal procedural rules would apply to Stripling’s retrial on the issue of mental retardation, and that the trial court erred by ruling that it lacked the authority to consider any plea bargain that the parties might be willing to enter into.”

• Brian Keith Moore v. Comm., 2011 Ky. LEXIS 91 (Ky 6/16/2011) “Circuit court did not err in refusing to vacate defendant’s conviction because Ky. Rev. Stat. Ann. § 422.285 only gave the right to a test, not to reversal of his 1979 conviction simply where DNA testing was impossible; that evidence from a crime committed so long ago was no longer available did not entitled defendant to the requested relief”[via Lexisone]

• State v. Mario Lynn Phillips, 2011 N.C. LEXIS 385 (N.C. 6/16/2011)  “Investigators did not violate U.S. Const. amends. VI and XIV, N.C. Const. art. I, §§ 19 and 23, or N.C. Gen. Stat. §§ 7A-451, -457, by continuing to question defendant after appointed provisional counsel arrived at the sheriff’s office and requested to see defendant where defendant did not request an attorney at any time before he made a statement.” [via Lexisone]

• Michael Wayne Howell v. State, 2011 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 6/14/2011) “Postconviction court’s denial of relief based on claimed intellectual disability pursuant to Tenn. Code Ann. § 39-13-203 was upheld, where inmate failed to establish, by preponderance of evidence, that he had significantly subaverage general intellectual functioning as evidenced by IQ of 70 or below or that he had deficits in adaptive behavior.” [via Lexisone]

• State v. Corinio Pruitt, 2011 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. 6/13/2011) “In felony murder action, death penalty was upheld where defendant provided no substantial evidence of deficits in adaptive behavior to support intellectual disability finding. Evidence defendant ambushed elderly victim, inflicting various blows, and attempted to steal victim’s car for parts supported Tenn. Code Ann. § 39-13-204(i)(7) aggravator.” [via Lexisone]

• Nicholas T. Sutton v. Bell,  2011 U.S. App. LEXIS 11553  (6th Cir. 6/8/2011)  Relief denied on claims: “(1) that his counsel failed to object to two aspects of courtroom security during the guilt phase; (2) that his counsel failed to object to three instances of prosecutorial misconduct during the guilt and penalty phases; (3) that his counsel failed to object to the penalty-phase jury instructions on the  ”heinous, atrocious, or cruel” aggravating circumstance; and (4) that his counsel failed to adequately investigate and present mitigating evidence of the amount of violence in Tennessee prisons and of his troubled background.”

• Anthony C. Apanovitch v. Bobby, 2011 U.S. App. LEXIS 11554 (6th Cir. 6/8/2011) State draws good panel and, since this is the Sixth Circuit, the rest of the story writes itself. “Although it was clear that at the time of petitioner’s capital murder trial, the State wrongly withheld favorable Brady evidence and that the State’s conduct was egregiously improper, the withheld evidence did not undermine the court’s confidence in the outcome of the trial. The evidence would have been of little or no value to petitioner” [via LexisOne]

Week of June 6, 2011: In Favor of the Prosecution or Warden

• Stephen Lynn Hugueley v. State,  2011 Tenn. Crim. App. LEXIS 426 (Tenn.Crim.App. 6/8/2011)  In a case of a “volunteer” who changed his mind “Petitioner may not belatedly withdraw his decision to dismiss his petition for post-conviction relief. Additionally, this court concludes that the post-conviction court did not err in concluding that the Petitioner was competent to withdraw his motion. Accordingly, we affirm the judgment of the post-conviction court.”

Week of May 30, 2011: In Favor of the Accused or Condemned 

• Michael Coleman v. State, 2011 Fla. LEXIS 1251 (Fl 6/2/2011) “For the reasons expressed below, we reverse the circuit court‘s denial of postconviction relief as it pertains to Coleman‘s claim of ineffective assistance of counsel during the penalty phase because we conclude that counsel rendered ineffective assistance of counsel during the penalty phase when counsel failed to investigate, develop, and present available mitigating evidence that would have legally precluded an override of the jury‘s life recommendation. Therefore, we vacate Coleman‘s death sentences and remand for imposition of life sentences instead.”

• Ex parte Carl Brad Ward; (In re: Carl Brad Ward v. State of Alabama), 2011 Ala. LEXIS 87 (Ala 6/3/2011) On postconviction review, a Rule 32 petition,  “Ward has sufficiently pleaded a claim of newly discovered material facts and that he is entitled to an opportunity to prove his allegations.”

• Eugene Tyrone Decastro v. Branker, 2011 U.S. App. LEXIS 11199 (4th Cir 6/3/2011) “In a petition for habeas relief from a conviction of first degree murder, judgment of the district court denying relief is affirmed where applicaton on the grounds of ineffective assistance of counsel and state violations of Eighth Amendment and due process rights fail because state court’s decisions did not constitute an unreasonable application of clearly established federal law or an unreasonable determination of the facts” [via FindLaw]

• Mark Duke v. Allen, 2011 U.S. App. LEXIS 10574 (11th Cir 5/26/2011)(dissent) “Court affirm[s] the denial of habeas relief to an Alabama inmate. During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]” [via Defense Newsletter blog]

• State v. Roderick Nunley,  2011 Mo. LEXIS 127 (Mo. 5/31/2011) ”Because the man pleaded guilty and waived jury sentencing for the strategic reason of avoiding jury sentencing, his federal and state  constitutional rights were not violated. His original plea and waiver remained valid after this Court remanded (sent back) his case for resentencing. Because he pleaded guilty and waived jury sentencing, the later – decided cases of Ring v. Arizona and State v. Whitfield do not apply. In addition, this Court did not err in its proportionality review of the man’s death sentence because the applicable law regarding proportionality review described in State v. Deck and State v. Dorsey is not retroactive.””Dissent would hold that “a defendant cannot waive a constitutional right that was not yet recognized at the time of the plea and the assertion of which is not inherently inconsistent with the plea.” [via the Missouri Supreme Court’s Clerk’s Office’s summary]

• State, ex re. Michael Anthony Taylor v. Steele,  2011 Mo. LEXIS 125  (Mo. 5/31/2011) (dissent) Mr. Taylor at trial sought a bench trial for his guilt phase claim and which resulted in the automatic waiver of a jury at the penalty phase under Missouri law.  On postconviction relief is denied as: “(1) Taylor is not entitled to jury sentencing under the Sixth Amendment;” “(2) Taylor’s waiver of jury sentencing remains valid;” “(3) Because the record clearly shows that Taylor strategically waived jury sentencing after weighing the costs and benefits of facing a jury, his case is distinguishable from Apprendi v. New Jersey, Ring, Blakely, Whitfield and their progeny;”  “(4) Taylor is not entitled to retroactive application of Ring or its progeny;”“(5) For the reasons discussed above, Taylor remains bound by his strategic decision in 1991 to  have his sentence imposed by a judge rather than a jury.” Dissent would hold that waiver of rights under Ring must be made separate and apart from the waiver of a guilt phase jury. [via the Missouri Supreme Court’s Clerk’s Office’s summary]

• State v. Roy L. Ellis, 281 Neb. 571 (Neb. 5/27/2011) Relief denied, most notably, on the admission of other crime evidence. Specifically, “[t]he State, over Ellis’ objection, presented testimony from  Ellis’ former stepdaughters that Ellis had sexually assaulted  them during a 3-year period from 1993 to 1995.” “Although we find that Ellis’ argument regarding evidence admitted pursuant to rule 404(2) has merit, we find that the error was harmless; the physical evidence, and statements Ellis was reported to have made before the physical evidence connected him to the crime, established his guilt beyond any reasonable dispute. The district court, however, correctly overruled Ellis’ objections to alleged “jailhouse informer” testimony and DNA evidence. And we find no merit to Ellis’ constitutional challenges to Nebraska’s capital sentencing scheme or his claims that the evidence is insufficient to support the findingsof the jury and the sentencing panel. Finally, we find, on our de novo review, that the death penalty is warranted and proportional in this case.”

• Paul Christopher Hildwin v. State, 2011 Fla. LEXIS 1254 (Fl 6/2/2011) Relief denied on claims relating to “(1) ineffective assistance of penalty-phase counsel for failing to investigate, prepare, and present mitigating evidence, and (2) ineffective assistance of penalty-phase counsel in failing to object to improper remarks made by the prosecutor in closing argument.”

• Erick Virgil Hall v. State,  2011 Ida. LEXIS 89 (Ida 5/27/2011) Relief denied on claims pertaining to: “1. Whether the district court had the inherent authority to enter an order restricting appellate counsel’s contact with jurors. 2. Whether the district court violated Hall’s attorneys’ First Amendment rights by entering an order forbidding contact with the jurors absent prior court approval.3. Whether the district court abused its discretion in denying Hall’s motion for post-verdict communications with the jurors. 4. Whether the district court abused its discretion in denying Hall’s motion to depose his trial counsel’s investigator.”

• People v. Veronica Utilia Gonzales,  2011 Cal. LEXIS 5437 (Cal 6/2/2011) (dissent) "Trial court should have curtailed prosecutor's extended and melodramatic oration couched as a letter to victim by sustaining defense objections and admonishing jury, but defendant failed to show prejudice, as there was not reasonable possibility jury would have returned different penalty verdict absent inflammatory and irrelevant aspects of letter." [via LexisOne]
  

• State v. Kevin Monday, Jr.  2011 Wash. LEXIS 394 (Wash 6/9/2011) (noncap) “The prosecutor’s misconduct tainted nearly every lay witness’s testimony. It planted the seed in the jury’s mind that most of the witnesses were, at best, shading the truth to benefit the defendant. Under the circumstances, we cannot say that the misconduct did not affect the jury’s verdict.” [via Lexisone]

• Martel v. Clair: Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence. 

• Lafler v. Cooper: Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

• Martinez v. Ryan: Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim

• Maples v. Thomas: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

• Greene v. Fisher:    For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for: Whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

• Howes v. Fields: Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

• Reynolds v. US:   Does petitioner have standing under the plain language of the Sex Offender Registration and Notification Act to raise claims regarding the Attorney General’s interim rule making the Act retroactively applicable to those who committed their underlying offense prior to its enactment date?

• Rehberg v. Paulk: Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.

• Perry v. New Hampshire:  Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?

• Gonzalez v. Thaler:  (1) Was there jurisdiction to issue a certificate of appealability under 28 U. S. C. §2253(c) and to adjudicate petitioner's appeal? (2) Was the application for a writ of habeas corpus out of time under 28 U. S. C. §2244(d)(1) due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review?

• Smith v. Louisiana:  1): Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2): Whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

• Minneci v. Pollard: Whether the Court should imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, against individual employees of private companies that contract with the federal government to provide prison services, when the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.

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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.

SOURCES: Execution and other news information derived from DPIC, Steve Hall, Rick Halperin, & media accounts.
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