Capital Defense Weekly for decisions from November 27, 2006 to December 11, 2006
In perhaps the most positive, and potentially important, Fifth Circuit decision since I started posting online a decade ago, in Billy Ray Nelson v. Quarterman the Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analysis of the death penalty in Texas.
Another opinion of potentially major long-term impact was handed down by Utah Supreme Court held Friday in State v. Menzies that a state statutory right to effective assistance of counsel exists in post-conviction. Counsel performance here is so bad that it was a constructive denial of counsel and hence client need not show prejudice, which is presumed. Note that the language here is strong and undeniable in the support for the ABA standards and good on the issue of fee caps & work-product privilege.
Additionally, in State v. Allen Gregory the Washington Supreme Court grants penalty phase relief on two grounds. First, the State relied on a prior conviction for rape as an aggravator, however the conviction for rape was subsequently voided. Second, the trial court's the prosecutor to exclude "any reference to the conditions that exist in prison," however the prosecutor "then blatantly violated the resulting order" in a manner that was "flagrant and ill-intentioned." As a result of both grounds, both separately and in conjunction, the sentence of death must be vacated.
Then of course there is the latest developments with lethal injection which is, perhaps, best summed up by a quote from Judge Fogel's “memorandum of intended decision” in Morales v. Tilton, footnote 8, attributed to a California prison officer after a botched execution there: “Sh*t does happen, so.” Morales findings conclude that California's “implementation of lethal injection is broken, but it can be fixed.” Likewise following the well publicized botched execution of Angel Diaz Florida Governor Jeb Bush, after reviewing the initial autopsy findings has suspended executions, for now, in Florida. In both states otherwise highly professional and competent corrections departments seem to have been giving unduly short-shrift to the process by which they take the lives of those in their care. As an aside, year to date, it is guestimated that 10 to 12 executions were put off due to lethal injection concerns in roughly a half dozen-jurisdictions.
The Supreme Court also handed down Carey v . Musladin. Justice Thomas's opinion is narrow and the concurrence make plain, including that by Justice Kennedy, that the Carey will be narrowly applied. Indeed, the opinion is a prelude to what is likely to be a heated question over the ultimate issue of the AEDPA & Article III that appears to be looming in the lower federal courts.
The Supreme Court last week decided Lopez v. Gonzalez. For those of us who dwell in the trial court realm, especially the noncapital realm, the opinion is huge. Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon, has an incredibly important post on the holding in Lopez over at the Ninth Circuit blog. His conclusions is simple & needs repeating here -- "[w]e need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions."
In the news, the Texas Court of Criminal Appeals has established new rules for appointed habeas attorneys in death row cases; those rules are linked here. Murder Victims' Families for Human Rights as part of their No Silence, No Shame has released a new report entitled “Creating New Victims: How executions hurt the families left behind.” The November 2006 edition of the Texas Bar Journal published by the State Bar of Texas, the State Bar has adopted a Texas version of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.”
Recent scholarship will be addressed in the next edition, but it can also be found at the blog.
This week's edition in theory is looking at just the period from November 27 to December 11, 2006, however, decisions & development more recent than those dominate this edition. One reason is that although the email goes out over the weekend - normally Sunday - cases from that week's Monday to Friday are not always covered is that Lexis & Westlaw generally do not post all their decisions until the following week. As a compromise an advance sheet of opinions that can be found are usually included & discussed.
Due to the holidays & potentially being out of the country I do not anticipate sending out a synopsis again until after Christmas. That edition will include a year end round-up. DPIC has their year end round-up here, although their projected total of number of new death sentences seems slightly high due to the low numbers of new death sentences in Ohio (4) and Texas (14), who have two of the nation's largest death rows.
As always, thanks for reading. - k
Full edition is available at http://www.capitaldefenseweekly.com/archives/061211.htm.
Executions
December
13 Angel Diaz (Florida)
Pending Executions
January
9 Corey Hamilton (Oklahoma)
10 Carlos Granados (Texas)
17 Johnathan Moore (Texas)
23 Kenneth Biros (Ohio) (potential LI related stay)
24 Larry Swearingen (Texas)
25 Ronald Chambers (Texas)
26 Marcus Robinson (North Carolina)
30 Christopher Swift (Texas-volunteer)
February
13 James Filiaggi (Ohio) (potential LI related stay)
22 Edward Harbison (Tennessee)
22 Newton Anderson (Texas)
27 Donald Miller (Texas)
March
6 Robert Perez (Texas)
7 Joseph Nichols (Texas)
28 Vincent Gutierrez (Texas)
More Execution information
In Favor of Life or Liberty
Week of 11/27 to 12/1/2006
State v. Allen Gregory, 2006 Wash. LEXIS 890 (Wash 11/30/2006) Penalty phase relief granted on two grounds. First, the State relied on a prior conviction for rape as an aggravator, however the conviction for rape was subsequently voided. Second, the trial court's the prosecutor to exclude "any reference to the conditions that exist in prison," however the prosecutor "then blatantly violated the resulting order" in a manner that was "flagrant and ill-intentioned." As a result of both grounds, both separately and in conjunction, the sentence of death must be vacated.
Week of 12/4 to 12/8/2006
State v. Darryl Gumm, 2006 Ohio App. LEXIS 6409 (Ohio 1st App 12/8/2006) Atkins relief granted.
Advance sheet for the week of 12/11 to 12/15/2006
Billy Ray Nelson v. Quarterman, No. 02-11096 (5th Cir 12/11/2006) The Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme — Billy Ray Nelson v. Quarterman. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analysis of the death penalty in Texas.
State v. Menzies, No. 20040289 (Utah 12/15/2006) The Utah Supreme Court held Friday in State v. Menzies that a state statutory right to effective assistance of counsel exists in post-conviction. Counsel performance here is so bad that it was a constructive denial of counsel and hence client need not show prejudice, which is presumed. Note that the language here is strong and undeniable in the support for the ABA standards and good on the issue of fee caps & work-product privilege.
Favoring Death
Week of 11/27 to 12/1/2006
Charles Smith v. Quarterman, 2006 U.S. App. LEXIS 29492 (5th Cir 11/30/2006) "The state court’s decision that Smith’s counsel made a reasonable strategic decision to forego the presentation of evidence at the punishment phase is neither contrary to, nor an unreasonable application of, clearly established federal law."
William Earl Lynd v. Terry, 2006 U.S. App. LEXIS 29187 (11th Cir 11/28/2006) Relief denied on "whether Lynd was deprived of his right to assistance from necessary and competent experts at his competency trial and at both phases of his capital trial," as well as "whether Lynd was denied effective assistance of counsel because: (1) his retained counsel unreasonably advised him not to cooperate with a state mental health evaluation; (2) his counsel failed to conduct an investigation into Lynd's background, including his mental health and substance abuse problems; (3) his counsel failed to investigate adequately the State's case; and (4) his court-appointed counsel had a conflict of interest."
David Raley v. Ylst, 2006 U.S. App. LEXIS 29398 (9th Cir 11/30/2006) Rehearing en banc denied. Opinion modified but not the prior outcome.
Antonio Melton v. State, 2006 Fla. LEXIS 2804 (FL 11/30/2006) Post-conviction loss on: "(1) his claim that he was denied the effective assistance of counsel during both the guilt phase and penalty phase of his trial; (2) his claim that the State withheld material and exculpatory evidence and presented misleading evidence; (3) his newly discovered evidence claim; (4) his claim that the prosecutor's misconduct during the course of his case rendered Melton's conviction and sentence fundamentally unfair and unreliable; and (5) his claim that there was unconstitutional systematic exclusion of a significant portion of the nonwhite population from the jury pool."
Comm. v. Kevin Marinelli, 2006 Pa. LEXIS 2279 (PA 11/27/2006) Relief denied on postconviction review of all claims, including: "(1) Should Appellant's death sentence be vacated because he was denied an impartial sentencing jury and, as a result, consideration of mitigating evidence was restricted; (2) Is Appellant entitled to a new sentencing because the penalty phase instructions shifted the burden of persuasion from the Commonwealth to Appellant and violated the presumption of life afforded defendants in capital sentencing procedures; (3) Is Appellant entitled to a new trial because [a juror] was a former client of [an] Assistant District Attorney [in the case]; (4) Must Appellant's death sentence be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be statutorily ineligible for parole; (5) Was counsel ineffective in misapprising Appellant of his right to testify to personal background mitigating circumstances without being subject to cross-examination of the circumstances of the offense, and was Appellant’s waiver of his right to testify in mitigation invalid; (6) Did the trial court fail to properly instruct on the nature and use of aggravating and mitigating factors; (7) Is Appellant entitled to the production of the remaining voir dire transcripts and restoration of his right to direct appeal, nunc pro tunc, because these notes of testimony of the voir dire proceedings were and remain unavailable to him; and (8) Must Appellant’s death sentence be vacated because this Court failed to provide meaningful proportionality review;"
State v. James Conway, 2006 Ohio 6219 (Ohio 10th App. 11/27/2006) Relief denied, most notably, on: (1) failure to permit funding to retain experts; (2) limitations placed on discovery; (3) applicability of res judicata to bar review of certain claims; and (4) failure to appoint to counsel for the duration of the postconviction process.
State v. James O'Neal, 2006 Ohio 6283 (Ohio 1st App 12/1/2006) Relief denied on claims of mental retardation.
Week of 12/4 to 12/8/2006
Kenneth Parr v. Quarterman, 2006 U.S. App. LEXIS 29998 (5th Cir 12/7/2006) Denial of habeas relief and a request for a certificate of appealability in a death penalty case are affirmed and denied, respectively, over procedurally barred or abandoned claims, and claims of error regarding: 1) whether the conviction was obtained in violation of the Fifth Amendment under the doctrine of collateral estoppel; 2) Brady claims; 3) ineffective assistance of counsel; 4) the jury's consideration of evidence regarding parole during deliberations; 5) jury instructions; 6) denial of defendant's request to introduce evidence on the length of time he would be required to serve before being eligible for parole; 7) alleged eliciting of testimony about defendant's post-arrest silence by the state;
admission of evidence; and 9) an Eighth Amendment claim.
Martin Link v. Luebbers, 2006 U.S. App. LEXIS 30085 (8th Cir 12/8/2006) Relief denied on: 1) failure to investigate and present mitigating evidence; 2) appellate IAC regarding the trial court’s decision to allow evidence regarding testing done on a car; and 3) appellate IAC regarding from trial counsel's failure to make a record regarding juror strikes.
Roger Judge v. Canada, 2006 U.S. App. LEXIS 30158 (3rd Cir 12/8/2006) (unpublished) Deportation from Canada, even where the defendant may face capital charges, may not be brought in American federal courts.
Christopher Barbour, et al v. Haley, 2006 U.S. App. LEXIS 30116 (11th Cir 12/8/2006) Relief denied on whether there exists a constitutional right to post-conviction assistance of counsel in capital cases where, unlike Murray v. Giarratano, there is a real possibility of no assistance of counsel in capital post-conviction proceedings.
Ex Parte David Lewis, 2006 Tex. Crim. App. LEXIS 2345 (Tex Crim App 12/6/2006) (dissent) Relief denied on post-conviction claims of mental retardation.
Thomas Springs v. State, 2006 Ark. LEXIS 616 (Ark 12/7/2006) Relief denied on claims including: "(1) erred, as a matter of law, by failing to intervene and appoint a head-injury expert to examine him; (2) erred in submitting aggravating circumstances to the jury that were not warranted by the evidence; (3) erred in refusing to give Appellant's proffered instruction on mitigating circumstances and, instead, submitting Arkansas Model Criminal Instruction Form 2; (4) erred in admitting State's Exhibits 23 and 24 because that evidence was cumulative and its probative value was substantially outweighed by the danger of unfair prejudice; (5) erred when it allowed Appellant to be charged under Ark. Code Ann. § 5-10-101 (Supp. 2003) in violation of the Eighth Amendment to the United States Constitution and the Arkansas Constitution; (6) abused its discretion in admitting victim-impact evidence during Appellant's sentencing because, under Arkansas law, such evidence is irrelevant in capital-murder cases."
In re: Amendments to Florida Rules of Criminal Procedure 3.851 & 3.590, 2006 Fla. LEXIS 2806 (FL 12/7/2006)
Angel Diaz v. State, 2006 Fla. LEXIS 2810 (FL 12/8/2006) "Diaz challenges the constitutionality of Florida's lethal injection statute and the procedures that the state uses for lethal injection. He also contends that his conviction and sentence of death must be vacated in light of newly discovered evidence. He claims that he is exempt from execution because he suffers from severe mental illness. He also argues that the trial court erred in denying his various requests for public records." Angel Diaz is, as has been abundantly clear through out this edition, dead and his claims in this appeal failed.
State v. Gary Kleypas, 2006 Kan. LEXIS 716 (Kan 12/8/2006) "The question we must resolve in the State's interlocutory appeal is wh