The first look at the next, trial delayed, edition. Still working through the various SCOTUS developments and a case from California.
- 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
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]
- 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.”
- 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]
In Favor of the Prosecution
- 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.”
- 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]
- 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 ineffe ctive 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.”
- 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]
- 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.
- 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]
- 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.”
- 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]