This "double edition" brings two previously unreported "wins." The Fifth Circuit in an unpublished opinion, John Adams v. Quarterman, affirms the district court's grant of sentencing relief as trial counsel failed to adequately investigate & present mitigating evidence; the panel denied all other relief. In Johnny Street Parker v. Branker a Fourth Circuit panel, in an unpublished order, remands for an evidentiary hearing on Brady related claims.

In the other litigation news, an Ohio federal district court lifted the federal lethal injection litigation related stay, Cooey v. Strickland, in the Buckeye state. Dramatically concurring in Wiles v. Bagley, Judge Boyce Martin, the former Chief Judge of the Sixth Circuit noted his continuing concern about capital punishment as a public policy issue, especially in lean economic times.

In Oklahoma Gov. Brad Henry has granted a nine-day reprieve for Donald Gilson to consider the Oklahoma Pardon and Parole Board's recommendation of clemency. The Colorado House has voted to eliminate the death penalty by just one vote. DPIC notes that at least 100 autopsies performed by Dr. Corinne Stern are being reviewed in Alabama following her finding of death by foul-play where a panel of experts concluded the decedent died of natural causes. In this highly effective post Stand Down examines the 2009 state legislative season relating to death penalty issues. The Constitution Project's National Right to Counsel Committee released its much-anticipated report, Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel, that examines the "endemic and systemic failures of the indigent defense system and recommends twenty-two specific and urgently needed reforms to fix them."

As always thanks for reading. Longer editions should hopefully return by the end of spring. - k

Pending Executions
April
28 William Mark Mize - GA*
30 Derrick Johnson - Tex*

May
5 Donald Gilson - Okla* (reprieve to consider clemency until at least May 14th)
8 Thomas Ivey - SC*
13 John Richard Marek - FL*
14 Willie McNair - Ala*
19 Michael Lynn Riley - Tex*
20 Dennis Skillcorn - Mo*
27 David Eugene Johnston - FL*

Recent Executions
April
15 Michael Rosales - Tex*
16 Jimmy Lee Dill - Ala*
* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]

SCOTUS


Arizona v. Gant, No. 07-542 (4/21/2009) "Because Chimel v. California, 395 U.S. 752 , requires that a search incident to arrest be justified by either (a) the interest in officer safety or (b) the interest in preserving evidence, and the circumstances of Gant's arrest implicated neither of those interests, the state Supreme Court found the search unreasonable. The U.S. Supreme Court affirmed, holding that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Warrantless searches 'are per se unreasonable,' 'subject only to a few specifically established and well-delineated exceptions.' Katz v. United States. The exception for a search incident to a lawful arrest applies only to 'the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.' The Court rejected a broad reading of Belton that would permit a vehicle search incident to a recent occupant's arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel's exception authorize a vehicle search only when there is a reasonable possibility of such access." [via U.S. Supreme Court Blog]

(Initial List) Week of April 20, 2009 – In Favor of the Defendant or the Condemned


John Adams v. Quarterman, No 06-70044 (5th Cir 4/22/2009 ) (unpublished) District court's grant of sentencing phase relief affirmed. Specifically, the panel granted relief as trial counsel failed to adequately investigate & present mitigating evidence. The panel denied all other relief.

(Initial List) Week of April 20, 2009 – In Favor of the State or Government

Robert Hunt v. Houston, 2009 U.S. App. LEXIS 8395 (8th Cir 4/23/2009) "District court erred in its handling of a claim related to prosecutor's misconduct, as the Nebraska Supreme Court determined the claim was defaulted because it had not been raised in Hunt's first habeas; in order to overcome a state procedural default finding, Hunt must show either that the ruling resulted from an exorbitant application of an otherwise sound rule, which he had not, or cause and prejudice; Hunt had knowledge of all of the facts surrounding his claim of prosecutorial misconduct, and he could not establish cause for his failure to include it in his first post-conviction filings; nor could Hunt establish prejudice because the statements related to the misconduct were not admitted at trial (the prosecutor removed information that Hunt had requested counsel at the end of his first statement, thereby making the admissibility of his second statement problematical; however, the state told the court and Hunt before trial that it would not introduce the second statement and it did not use the statement at trial); trial counsel's failure to adequately investigate the conduct and report it to ethics authorities did not result in any prejudice; the possibility of prejudice is further undercut by the strength of the state's case, and Hunt has failed to show that there is a reasonable probability that the outcome of his trial would have been different; claim that his trial counsel's closing arguments amounted to a complete denial of Hunt's right to counsel was properly rejected by the district court; claim that the state court improperly admitted evidence as a result of the second statement was properly rejected; grant of habeas relief is reversed, and the matter is remanded with directions to dismiss the petition." [via Clerk's Office]
John Forest Parker v. Allen, 2009 U.S. App. LEXIS 8275 (11th Cir 4/20/2009) Relief denied. " Parker raised twenty-four issues, including: (1) the prosecutor's use of his peremptory strikes in violation of Batson; (2) the prosecutor's failure to disclose a witness's other convictions and the favorable treatment he received in exchange for his testimony in violation of Brady v. Maryland ; (3) the illegality of the warrantless search of his home; (4) the involuntariness of his post-arrest statement; (5) improper prosecutorial closing arguments; and (6) his court-appointed counsel's lack of required experience."
People v. Carlos Anthony Hawthorne, No. S064769 (Cal 4/23/2009) "Conviction for first degree murder, attempted murder and robbery and sentence of death is affirmed where: 1) record supports the trial court's decision to grant prosecution's race-neutral peremptory challenges against jurors; 2) trial court did not err in denying plaintiff's motion to suppress evidence of his confession as defendant impliedly voluntarily and knowingly waived his Miranda rights; 3) prosecution's penalty phase cross-examination did not constitute prosecutorial misconduct; 4) trial court did not err in admitting the 911 tape as victim impact evidence, as it was not cumulative of other evidence and was more probative than prejudicial; and 5) the death penalty statute is not unconstitutional." [via FindLaw]

Week of April 13, 2009 – In Favor of the State or Government
Paul Warner Powell v. Kelly, 2009 U.S. App. LEXIS 7867 (4th Cir 4/15/2009) "State court did not unreasonably apply federal law in concluding that Double Jeopardy Clause of Fifth Amendment did not bar petitioner's second capital murder trial because charge of capital murder during attempted rape of murder victim was separate and distinct from charge of capital murder during or subsequent to rape of murder victim's sister." [via Lexisone]
Michael Rosales v. Quarterman, No. 09-70013 (5th Cir 4/14/2009) "In a capital murder case, the denial of Defendant's motions for a stay of execution and appointment of counsel for clemency purposes is affirmed, where: 1) there was no habeas petition pending, and therefore the District Court had no jurisdiction to enjoin the execution; and 2) there was no showing of additional evidence that could be presented in clemency proceedings." [via FindLaw]

Mark Wiles v. Bagley, No. 05-3719 (6th Cir 4/14/2009) "In a capital habeas proceeding, the denial of Petitioner's habeas petition is affirmed, where the state supreme court did not unreasonably apply federal law in holding that Petitioner's counsel was not ineffective during the penalty phase of the trial, as the evidence counsel allegedly failed to uncover would have been cumulative." [via FindLaw]
Darius Mark Kimbrough v. Sec'y, DOC, 2009 U.S. App. LEXIS 7747 (11th Cir 4/13/2009) "The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase. The Court noted trial counsel's strategic decision not to present such evidence because it would have opened the door to admission to the admission of more damaging information." [via Defense Newsletter Blog]
In re Troy Davis, No. 08-16009 (11th Cir 4/16/2009) (dissent) Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court's dismissal of his petition that challenged his death sentence for a 1989 murder.. . . The Court noted that, under AEDPA, the factual predicate for a second or successive petition "could not have been discovered previously." Here, Davis was aware of the factual predicate – except for one new affidavit, which the Court found insufficient to negate the evidence supporting the jury's verdict of guilt. The Court noted that AEDPA does not provide that actual innocence claims, standing alone, can support a second habeas petition: the statute requires a showing of a constitutional violation as well. Further, even if the statute allowed such claims, here Davis' evidence did not suffice to establish, as the statute required, that "no reasonable fact-finder would have found the applicant guilty." The Court noted that "recantations are viewed with extreme suspicion by the courts." [via Defense Newsletter Blog]
John Lezell Balentine v. Quarterman, 2009 U.S. App. LEXIS 7817 (5th Cir 4/13/2009) (unpublished) "A state inmate's motion to expand the COA was denied because his two ineffective assistance of counsel claims were procedurally defaulted, and the denial of his habeas corpus petition was affirmed since he had not been denied a full and fair opportunity to litigate his Fourth Amendment claims during his state trial." [via Lexisone]
Edmund Zagorski v. Bell, 2009 U.S. App. LEXIS 7941; 2009 FED App. 0281N (6th Cir. 4/15/2009) (unpublished) Relief denied on: "(1) whether the prosecution improperly withheld evidence that someone else murdered Zagorski's alleged victims; (2) whether the prosecution improperly withheld evidence that it did not reinstate prosecution witness Jimmy Blackwell's suspended sentence; (3) whether the trial court improperly admitted statements that Zagorski made to police; (4) whether the trial court gave an erroneous jury instruction concerning malice; and (5) whether Zagorski's counsel provided ineffective assistance by failing to investigate and present mitigating evidence."
Kevin Scott Varga v. Quarterman, 2009 U.S. App. LEXIS 7818, (5th Cir 4/13/2009) (unpublished) "Death row inmate was denied COA on claim that counsel provided ineffective assistance under Sixth Amendment by failing to appeal venire member's exclusion from jury: exclusion of venire member was reasonable application of law; inmate did not show that outcome would have been different had counsel raised her exclusion from jury on direct appeal." [via Lexisone]
Week of April 6, 2009 – In Favor of the Defendant or the Condemned

Ex parte Gene Wilford Hathorn, Jr., No. AP–75,917(Tex. Crim. App. 4/2/2009) On the facts presented that Mr. Hathorn is entitled relief under Penry as the jury was not provided a vehicle to give effect to Appellant's proffered mitigation evidence. For Texas practitioners there is also a discussion of that state's procedural default rules and why the Court did not apply those rules to Mr. Hathorn's petition.
Johnny Street Parer v. Branker, No.08-05 (4th Cir 4/9/2009) (unpublished) Remand for an evidentiary hearing ordered on Brady related claims.

Week of April 6, 2009 – In Favor of the State or Government

State v. Anthony Woods, 2009 S.C. LEXIS 76 (S.C. 3/30/2009) Relief denied on claims on whether: "1. Did the trial court err in utilizing a jury pool from Clarendon County, rather than Marion County? 2. Did the trial court err in excusing a black female potential juror for cause?"
Joseph Gamboa v. State, 2009 Tex. Crim. App. LEXIS 512 (Tex. Crim. App. 4/8/2009) " Defendant's capital murder conviction is affirmed, where: 1) the evidence was sufficient based on witness statements, DNA and fingerprint evidence; 2) the trial court properly dismissed a juror who was arrested for driving while intoxicated; and 3) the trial court gave an instruction to cure a bystander's outburst. [via FindLaw] The TCCA Blog has more.
Roy Lee Ward v. State, 2009 Ind. LEXIS 343 (Ind 4/7/2009) Relief denied on challenges regarding "(1) the constitutionality of Indiana's death penalty statute; (2) the lack of a statutory written plan for selecting the petit jury pool; (3) the jury selection process; (4) the admission of evidence from a warrantless search; (5) the admission of photographic evidence; and (6) the appropriateness of the death sentence."


Week of April 6, 2009 – noncapital

Hayden v. State, 2009 Tex. Crim. App. LEXIS 510 (Tex Crim App 4/8/2009)(noncapital) "During the punishment phase of defendant's murder trial, the trial court acted within her discretion by excluding evidence that the victim was a registered sex offender. This kind of comparative evidence offered to mitigate defendant's punishment by showing that the victim's life was of little value was unfairly prejudicial under Tex. R. Evid. 403." [via LexisOne]

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As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. Likewise, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center, Fair Trial Initiative, GRACE, Southern Center for Human Rights, & Texas Defense Services. These groups were selected as each have demonstrated an ability to make a difference, usually on a shoestring budget, meaning even the smallest donation goes a long way. On each of the above links you're able to donate as little or as much as you want, or even set up a monthly automated giving amount. If there is a group you think should be added please drop us a line. - k

SMALL PRINT
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OPEN RESEARCH DATA: 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 "SENTENCED TO DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon" - please note, however, the terms "overproduce" results, including all federal habeas corpus opinions.es. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts.