Week of July 4, 2011:  In Favor of the Accused or Condemned

• Richard D. Hurles v. Ryan, 2011 U.S. App. LEXIS 13819 (9th Cir 7/7/11) (dissent) “[W]e reverse the district court’s denial of Hurles’s judicial bias claim. The highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles’s death sentence — compel us to conclude that Hurles was denied his right to due process. These exceptional facts raise the probability of actual bias to an unconstitutional level.”
  

Week of July 4, 2011: In Favor of the Prosecution or Warden

Week of June 27, 2011: In Favor of the Accused or Condemned

• Roy Phillip Ballard v. State, 2011 Fla. LEXIS 1521 (FL 6/30/2011) “[I]mposition of the death penalty in this case to be disproportionate. This Court has previously stated that CCP is one of the weightiest aggravating circumstances.  However, this Court has also held that the death penalty is reserved only for those circumstances where the most aggravating and the least mitigating circumstances exist. This is not such a case. In this case, the trial court found CCP to be the only aggravating circumstance. The trial court also found three statutory mitigating factors— (1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant. Additionally, the trial court considered numerous nonstatutory mitigating factors. Accordingly, we find the death sentence to be disproportionate when comparing this case to other death penalty decisions.” (internal citations omitted)

• Kevin Jerome Scott v. State,   2011 Fla. LEXIS 1524 (FL 6/30/2011)  “After considering these circumstances with the mitigating evidence presented and similar other capital cases, we concluded that the crime committed by Johnson was “not among those for which the death penalty is specifically reserved.” “Like the defendant in Johnson, Scott was convicted under both premeditated and felony-murder theories and his penalty-phase proceeding produced comparable mitigation. As in Johnson, the evidence here certainly supports a finding of two aggravating circumstances; however, those aggravators are simply not compelling when the circumstances surrounding Scott’s contemporaneous felony are adequately considered: the prior violent felony was predicated upon an aggravated battery occurring at the same time as the murder, it involved a relatively limited use of violence, and was not charged until the eve of trial. Moreover, the facts of the murder are less compelling than in Johnson, where the record reflected that Johnson shot the victim multiple times and then, without provocation, again shot the victim in the jaw. Here, Scott shot Binjaku only once, and, by Scott’s account, the shot was in response to Binjaku rushing at him with a chair.” (internal citations omitted)

• Roth  v. Dep’t of Justice, 2011 U.S. App. LEXIS 13124  (D.C. 6/28/2011) “[W]e conclude that (1) the public has an interest in knowing whether the federal government is withholding information that could corroborate a death-row inmate's claim of innocence, and (2) that interest outweighs the three men's privacy interest in having the FBI not disclose whether it possesses any information linking them to the murders. We thus reverse the district court's approval of the FBI's Glomar response. And with only minor exceptions, we affirm the district court's rejection of appellant's other arguments.”

• State v. Gary Haugen, No. S05951 (Ore 6/29/2011) “[C]ommanding the trial court either:  (1)(a) to vacate findings, rulings and orders relating to the competency of defendant Haugen and to vacate the death warrant authorizing the execution of defendant Haugen; and (b) to take or agree to take action, by the close of business on July 7, 2011, to order an assessment of defendant’s mental capacity and to conduct an evidentiary hearing to address the competency of defendant Haugen before issuing a death warrant; or, (2) in the alternative, to show cause for not doing so. [Headnotes]

• David Eugene Matthews  v. Parker, 2011 U.S. App. LEXIS 13091 (6th Cir 6/27/2011) (dissent)** The trial  court erred in its application of extreme emotional distress and permitted prosecutors to claim during closing arguments that Matthews and his attorneys concocted the issue in an attempt to avoid conviction.”The prosecutor’s comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor, were both improper and flagrant.”

Week of June 27, 2011: In Favor of the Prosecution or Warden 

• State v. Warren Waddy,  2011 Ohio 3154 (Ohio 10th App 6/28/2011) ”Trial court did not err in finding that defendant failed to meet his burden of establishing mental retardation because there was evidence, testimony by a psychologist, to support the finding that defendant failed to show either significant limitations in his intellectual functioning or related significant limitations in adaptive functioning.” [via LexisOne]

• Humberto Leal Garcia v. Thaler, 2011 U.S. App. LEXIS 13535 (5th Cir 6/30/2011) ““Leal contends that under the Fifth and Fourteenth Amendments he has a due process right to remain alive until the proposed Avena legislation becomes law. We disagree.”

• Humberto Leal Garcia v. Fallon, 2011 U.S. App. LEXIS 13619 (5th Cir 7/1/2011)  DNA testing sought. ‘The district court did not abuse its discretion by concluding that Leal’s §1983 claim was frivolous because the claim has no arguable basis in fact or law, and the claim is based on a theory completely without merit.”

• In re Tyrone Noling, 2011 U.S. App. LEXIS 13264 (6th Cir 6/29/2011)  Permission to file a successive habeas petition denied. “Noling requests that we permit him to file a successive petition based on newly discovered evidence that police did not originally turn over to his defense counsel, and that suggests other potential suspects that might have murdered the Hartigs.”

• Richard Lynn Bible v. Schriro, 2011 U.S. App. LEXIS 13178 (9th Cir 6/28/2011) Motion to file successor denied.  ”Whatever the DNA testing of the hair evidence might reveal, it could not refute the overwhelming inculpatory evidence presented at Bible’s trial.”

• Daniel Greene v. Upton, 2011 U.S. App. LEXIS 13180 (11th Cir 6/28/2011)  Relief denied. “First, Greene contends that the prosecution exercised peremptory challenges against six black members of the jury venire on the basis of race in violation of the Fourteenth Amendment, see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and that the determination of the Supreme Court of Georgia with respect to this claim was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. Second, Greene contends that several arguments by the prosecutor amounted to misconduct that deprived him of a fair trial, and that the decision of the Supreme Court of Georgia on that issue was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. After a careful review of the record, we conclude that Greene’s contentions lack merit. We conclude further that three remaining claims raised by Greene also fail.”

• Randall Scott Jones v. Sec. Dep’t of Corrections,, 2011 U.S. App. LEXIS 13179 (11th Cir 6/28/2011)  “The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”

• Ex  parte Wakilii Brown, 2011 Ala. LEXIS 103 (Ala 6/30/2011) Relief denied on admission of child witness testimony and prosecutorial injection of personal belief into closings.  Specifically, “Brown contends that, by calling T.S. “sweetheart” and allowing her to testify after she indicated that she would tell the truth, the trial court signaled to the jury that it favored T.S. and conveyed to the jury that it believed T.S. was a credible witness.”  “We agree with the Court of Criminal Appeals that a fairer assessment of the trial court’s words and actions is that the trial court was trying to ease T.S.’s nerves.“ Further,  ”[w]e decline Brown’s invitation to require a trial court to conduct an examination to determine the reliability of a child witness’s testimony. The concerns raised by Brown regarding a child witness’s testimony are adequately addressed by our Rules of Evidence.”

• State v. James Lynn Styers, 2011 Ariz. LEXIS 33 (Az 7/1/2011) On reweighing following the Ninth Circuit’s habeas opinion relief again denied.  “Because we attribute little mitigating weight to Styers’ PTSD, we find no reason to alter the conclusion reached in Styers’ direct appeal. We therefore hold that Styers’ PTSD, in combination with all other mitigating evidence presented at Styers’ mitigation hearing and previously considered by this Court, is not sufficient to warrant leniency in light of the aggravating factors proven in  this case.”

• David Joseph Pittman v. State, 2011 Fla. LEXIS 1519 (FL 6/30/2011) Relief denied on appeal as to: ” (1) whether the postconviction court erred in denying his claim under Brady v. Maryland with respect to inmate Carl Hughes; (2) whether the postconviction court erred in denying his Brady claim with respect to inmate David Pounds; (3) whether the postconviction court erred in denying his Brady claim with respect to the handwritten notes of other witness interviews; (4) whether the postconviction court erred in denying his Brady claim with respect to Dennis Waters’ identification of the wrecker; (5) whether the postconviction court erred in denying his Brady claim with respect to the letter concerning William Smith; (6) whether the postconviction court erred in denying relief based on the cumulative effect of all the withheld and newly discovered evidence; (7) whether the postconviction court erred in denying his Giglio v. United States claim; (8) whether the postconviction court erred in denying his ineffective assistance of counsel claim; and (9) whether the postconviction court erred in denying his newly discovered evidence claim[;] (10) whether the postconviction court erred in denying his Brady claim; (11) whether the postconviction court erred in denying his ineffective assistance of counsel claim; and (12) whether the postconviction court erred in denying his newly discovered evidence claim. Relief denied on claims raised in “habeas petition: (1) whether appellate counsel was ineffective in failing to challenge the sufficiency of the evidence; (2) whether the Florida Supreme Court erred in affirming the exclusion of certain evidence; (3) whether the Florida Supreme Court erred in affirming Pittman’sconvictions and sentences where the State withheld pertinent facts; (4) whether appellate counsel was ineffective in failing to argue that Pittman’s death sentences were based on an improper aggravator; (5) whether appellate counsel was ineffective in failing to argue that the prosecutor used improper argument in the penalty phase; and (6) whether appellate counsel was ineffective in failing to argue that the penalty phase jury was misled by improper comments and instructions.” (internal citations omitted)

• Darryl Brian Berwick v. State, 2011 Fla. LEXIS 1518 (FL 6/30/2011)  Relief denied on a litany of claims including: (1) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the penalty phase; (2) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the guilt phase; (3) the postconviction court erred in denying Barwick’s Brady and Giglio and prosecutorial misconduct claims; (4) the postconviction court erred in denying Barwick’s cumulative error claim; (5) the postconviction court erred in denying  Barwick’s ineffective assistance of counsel claim with respect to the jury qualification procedure in Bay County; (6) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the “avoid arrest” aggravator; (7) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to omissions in the record on direct appeal; (8) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to comments by the prosecutor and court that diminished the jury’s sense of responsibility; (9) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to improper argument by the State; (10) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to the “during commission of a felony” aggravator; and (11) the postconviction court erred in denying Barwick’s ineffective assistance of counsel claim with respect to an alleged burden-shifting instruction.” Relief denied on claims raised in habeas petition including: “(1) whether the execution of Barwick, a brain-damaged, mentally retarded person, would be unconstitutional; (2) whether the State violated Barwick’s rights when it used crimes he had committed as a juvenile as an aggravator; (3) whether appellate counsel was ineffective in failing to argue against the “avoid arrest” aggravator; (4) whether appellate counsel was ineffective in failing to raise the issue of omissions in the record; (5) whether appellate counsel was ineffective in failing to argue that the sentencing jury was misled by improper comments and instructions that diluted its sense of responsibility; (6) whether appellate counsel was ineffective in failing to argue that the prosecutor presented impermissible considerations to the jury; (7) whether the “during commission of a felony” aggravator operates as an impermissible automatic aggravator; (8) whether appellate counsel was ineffective in failing to argue that the penalty phase instructions improperly shifted the burden; and (9) whether the Florida Supreme Court erred in failing to remand for resentencing after striking an aggravator.”

• State v. Warren Waddy,  2011 Ohio 3154 (Ohio 10th App 6/28/2011) ”Trial court did not err in finding that defendant failed to meet his burden of establishing mental retardation because there was evidence, testimony by a psychologist, to support the finding that defendant failed to show either significant limitations in his intellectual functioning or related significant limitations in adaptive functioning.” [via LexisOne]

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.”
  

• People v. Charles Edward Moore, 2011 Cal. LEXIS 6170 (Cal 6/23/2011) Relief denied on numerous issues including:“a. denial of defendant’s requests for the appointment of cocounsel;” “b. denial of motion to reinstate in propria persona privileges at the jail;” “c. denial of motion to suppress evidence;” “d. assertedly inadequate notice of the murder charges and lack of trial court jurisdiction ;” “e. asserted trial court error in failing to limit jury instruction concerning defendant’s possession of stolen items;” “f. asserted trial court error in instructing the jury not to consider the prosecution of other person;” “h. assertedly erroneous admission of penalty phase aggravating evidence;” “i. assertedly erroneous penalty phase instruction concerning jury unanimity ;” “j. challenges to CALJIC No. 8.88;” “k. accomplices’ case dispositions;” “l. asserted violation of due process in prosecution’s assertedly inconsistent positions at defendant’s and lee harris’s trials ;” “m. absence of jury instruction regarding requirement of corroboration of terry avery’s penalty phase testimony;“ “n. absence of jury instruction concerning presumption of life imprisonment;“ “o. challenges to the constitutionality of california’s death penalty statute ;“ and “p. asserted cumulative error. ““Trial court did not err in denying defendant’s requests for appointment of cocounsel; defendant, who represented himself during pretrial stages of proceedings but eventually chose to have an attorney represent him for part of guilt phase, failed to make any compelling showing that appointment of cocounsel instead of advisory counsel was justified.” “Trial court did not err in denying defendant’s requests for appointment of cocounsel; defendant, who represented himself during pretrial stages of proceedings but eventually chose to have an attorney represent him for part of guilt phase, failed to make any compelling showing that appointment of cocounsel instead of advisory counsel was justified.” [via Lexisone]  Shaun Martin’s analysis may be the best take away.

• 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.”
  

Noncovered cases, all losses:

• People v. John Joseph Famalaro,  2011 Cal. LEXIS 6797 (Cal 7/7/2011)

• People v. Eloy Loy,  2011 Cal. LEXIS 6796 (Cal 7/7/2011)
  

• Cornellius O. Baker v. State, 2011 Fla. LEXIS 1568 (FL 7/7/2011)

• Joshua D.  Nelson v. State, 2011 FLa. LEXIS 1570 (FL 7/7/2011)

• Marbel Mendoza v. State,  2011 Fla. LEXIS 1581 (FL 7/7/2011)
  

Noncapital of note:

• United States v. Calvin Bryan Evanston, 2011 U.S. App. LEXIS 13647 (9th Cir 7/5/2011) “Jury was hung. An Allen charge had been given. Declare a mistrial? Wait, said the court, why don't we have the jury say what issues trouble them, and have the lawyers re-argue? Over objection (key), that is what happened. On appeal, the 9th says: Wait, that is a terrible idea, and vacates and remands. The 9th finds no basis to allow such a procedure in federal court. It recognizes that judges have a great deal of discretion in running trials, and administering jury deliberations, but having them define issues after declaring themselves at an impasse, and then having lawyers argue, has the lawyers become part of the deliberations. Moreover, the court arguably went against the 9th's own model instructions that state that the jury should not tell anyone, including the court, how they stand. Issue defining does. Recognizing that several states do allow such a process, including Arizona (the court sits in the District of), the 9th stress es that the federal rules do not. The states had the benefit of a rule making process, and their own jurisprudence, that differs from the federal rules. The only other circuit that touches on this rejected it, and while not outright condemning the procedure, cast grave doubts on its use.” [Jon Sands at the Ninth Circuit Blog]

• Ex Parte: James A. Brown, Jr., Attorney, 2011 S.C. LEXIS 207 (S.C. 6/21/2011) “Where court-appointed attorney, aggrieved by $ 3,500 fee cap of S.C. Code Ann. § 17-3-50, told the trial court that he refused to do any more work on the case, given the egregious level of his inexcusable conduct and persistent disregard of court’s orders, the court did not abuse its discretion in refusing to award fees in excess of statutory cap.” [via LexisOne]

• Tyner v. State, 2011 Ga. LEXIS 499 (Ga 6/20/2011) “Defendant’s conviction for malice murder, which was based upon his guilty plea, was reversed because the record did not show that defendant was advised of his right against self-incrimination as required by Boykin. The State did not fulfill its duty to ensure that defendant’s guilty plea was constitutionally valid.”

• Gary A. Gauger v. Hendle, 2011 Ill. App. LEXIS 688 (Ill. App 2nd 6/28/2011) “ Order vacating plaintiff’s murder conviction was properly excluded in his malicious prosecution case because the order addressed whether law enforcement officials had probable cause to arrest him and was distinct from the issue of whether defendants had probable cause to charge plaintiff, which was at issue in the malicious prosecution case.” [via LexisOne]

• Trevor James Booth v. State, 2011 Ida. LEXIS 100 (Ida 6/29/2011) “ an attorney engages in deficient performance by rendering advice regarding potential penalties during the plea process that is inconsistent with the plain and unambiguous provisions of a sentencing statute.”

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