The Tenth Circuit's opinion in Michael Lee Wilson v. Workman, en banc, leads off this week. The Wilson Court examines whether or not an "adjudication on the merits" was had in State court for purposes of the AEDPA. Specifically, the Wilson court held "[w]hen the OCCA, pursuant to Rule 3.11, refuses to grant an evidentiary hearing to consider material, non-record evidence of ineffective assistance of counsel that the defendant has diligently sought to develop, and then rules on the ineffectiveness claim without consideration of this evidence, the OCCA's denial of the claim is not an adjudication on the merits to which the federal courts owe AEDPA deference."

In other case law news, the Eighth Circuit, in Jimmy Don Wooten v. Norris, denies relief in an egregious case of default due to counsel's gross mishandling of a state postconviction motion. The First Circuit in Peter Limone, et al. v. United States affirms the awarding of 100 million dollar plus verdict where federal government agents knowingly aided in sending several innocent men to prison, including three to death row. In Howard Dean Goodin v. State the Mississippi Supreme Court has ordered an evidentiary hearing on claims pertaining to "(1) mental retardation; (2) ineffective assistance of counsel on the issue of mental illness and (3) ineffective assistance of counsel on the issue of competency."


Leading off the news is the ongoing investigation in to the execution of Cameron Todd Willingham. As the Austin American Statesman notes, "[t]he fatal house fire that led Texas to execute Cameron Todd Willingham in 2004 was erroneously ruled to be arson by fire investigators who relied on bad science, unproven theories and personal bias, a state-funded analysis concludes. The analysis, prepared by nationally known fire scientist Craig Beyler, raises the possibility that Willingham did not commit the crime for which he was executed, a 1991 fire that killed his three young children in the Corsicana house they shared." The report by Craig Beyler, a nationally recognized arson expert, prepared for the Texas Forensic Science Commission is here.


In other news, the Atlanta Constitution-Journal reports that Georgia is"can't afford to defend [a] Gwinnett capital murder case." The Atlanta Journal-Constitution also reports that "Chief U.S. District Judge William T. Moore Jr. of Savannah has been assigned to preside over the evidentiary hearing for Troy Anthony Davis. Cornell Law prof Michael Dorf's latest column at FindLaw.com asks, concerning last week's Supreme Court order in the Troy Davis case, "Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?" The Associate Press reports that Arkansas. lethal injection suit will be heard on October 8, 2009.

DPIC offers a new resource on LWOP jury instructions:


In all states that use the death penalty, there are provisions for sentencing inmates to the alternative sentence of life without parole (LWOP). Prior to the U.S. Supreme Court's ruling in Simmons v. South Carolina (1994), some states with LWOP did not inform the jury of this alternative even when so requested by the defense. Today, states apply a variety of conditions and use differing instructions to inform the jury about this alternative sentence. Opinion polls and surveys of capital jurors have shown how important this alternative is in death penalty cases. Thanks to the research of Emma Reynolds of Drexel Law School and Intern at the Philadelphia Federal Defender, Capital Habeas Unit, we are able to offer a summary of how states handle this key issue. Her paper, "Survey of Life Without Parole Instructions in Death Penalty States," provides the relevant statute and information about jury instructions in each death penalty state. As with any legal research, it would be important to research any changes in the law before using this information (e.g., New Mexico has now abolished the death penalty and replaced the sentence with LWOP). The table of statutes and instructions is provided in both pdf and Excel format:
Survey of Life Without Parole Instructions in Death Penalty States (pdf) & Survey of Life Without Parole Instructions in Death Penalty States (Excel).

As always, thanks for reading, a special thanks to Steve Hall of Stand Down -Texas whose work is regularly relied upon here, and. my apologies for the delay this week. -k


Pending Executions
September
15 Romell Broom* (Ohio)
16 Stephen Moody* (Tex)
22 Christopher Coleman* (Tex)
22 Noel Matos Montalvo (Penn)
24 Kenneth Mosely* (Tex)
24 Donald Mitchell Tedford (Penn)
30 John Balentine* (Tex)

* "serious" execution date / (s) stay believed likely / (V) Volunteer
(note that none of the Pennsylvania dates listed are likely actual execution dates but the result of an automatic death warrant statute)




(Initial List) Week of August 24, 2009 – In Favor of the Accused or Condemned

Michael Lee Wilson v. Workman & Donald Wackerly v. Workman, Nos. No. 06-5179, 07-7034 & 07-7056 (10th Cir 8/28/2009) (en banc) (dissent) The Circuit en banc examines under Oklahoma precedent whether or not an "adjudication on the merits" was had on the Workman & Wilson's ineffective assistance of counsel claims, as well as the legal effect of whether or not such an "adjudication" was had.. The en banc court holds that an adjudication was not had n the merits. "When the OCCA, pursuant to Rule 3.11, refuses to grant an evidentiary hearing to consider material, non-record evidence of ineffective assistance of counsel that the defendant has diligently sought to develop, and then rules on the ineffectiveness claim without consideration of this evidence, the OCCA's denial of the claim is not an adjudication on the merits to which the federal courts owe AEDPA deference."
Howard Dean Goodin v. State,No. 2007-CA-00972-SCT; (Miss 8/27/2009) The Court below failed to follow, "through no fault of the trial court," the Court's prior mandate in this matter. "This case is remanded to the Circuit Court of Newton County for a full evidentiary hearing and ruling on the following issues: (1) mental retardation; (2) ineffective assistance of counsel on the issue of mental illness and (3) ineffective assistance of counsel on the issue of competency."
(Initial List) Week of August 24, 2009 – In Favor of the State or Government

Jimmy Don Wooten v. Norris, 2009 U.S. App. LEXIS 19193 (8th Cir 8/26/2009) "A habeas petitioner represented in his state post-conviction proceedings by an incompetent convicted felon from another state (the licensing state did not know about the conviction until he was convicted of fraud in federal court) defaulted his claims. Wooten v. Norris, 06-4068 (8th Cir. August 26, 2009). See Judge Myron Bright, concurring:. . . It may be that there is still a possible remedy for all this mess in state court. From one who practices in that state, it is unlikely." [via John Wesley Hall's Law of Criminal Defense]
John Errol Ferguson v. Sec'y for the Dep't of Corr., 2009 U.S. App. LEXIS 19198 (11th Cir 8/26/2009) "In a capital habeas matter, denial of the petition is affirmed where: 1) defense counsel was not ineffective during the penalty phase because the aggravating circumstances far outweighed any mitigating factors, even taking into account the evidence that counsel failed to uncover; and 2) any infirmities in the trial court's initial jury instructions would have been cured by the court's subsequent statement." [via FindLaw]

Steven Douglas Hayward v. State, SC07-1234 (FL 8/27/2009) Relief denied on claims that: "(1) the statements of the murder victim to police describing his attacker were improperly admitted under the excited utterance and dying declaration exceptions to the hearsay rule, and in violation of the Confrontation Clause; (2) introduction of Hayward`s statements to police at the rooming house and their observations while there violated his Fourth Amendment rights; (3) introduction of the recorded jail conversations between Hayward and Smith were more prejudicial than probative due to the vulgarity of the language used, affecting both the guilt and penalty phases; (4) comments made by the prosecutor in closing argument during the penalty phase comparing the life choices made by the victim and Hayward constituted prosecutorial misconduct amounting to fundamental error; (5) there was insufficient evidence concerning the identity of the shooter; (6) there was insufficient evidence as to whether a robbery was actually accomplished; (7) there was insufficient evidence establishing premeditation; (8) the standard jury instruction on premeditation is insufficient; (9) Florida`s sentencing scheme is unconstitutional under the United States Supreme Court`s decision in Ring v. Arizona; and (10) imposition of a death sentence based on an eight-to-four jury recommendation is unconstitutional."
Comm. v. George Banks, No. 578 CAP (8/27/2009) Trial court's adoption of counsel's "proposed findings of fact and conclusions of law wholesale" was improper. The Court strongly hints that it didn't help that the trial court judge has been stripped office due to misconduct (taking bribes).


(Initial List) Week of August 24, 2009 – Other

Peter Limone, et al. v. United States, 2009 U.S. App. LEXIS 19239 (1st Cir 8/27/2009) Affirming the $100,000,000+ judgment against the federal government for framing and scapegoating four defendants, including sending several to death row, to protect prosecutorial interests in other cases,, a conspiracy that lasted over three decades.
This case exemplifies a situation in which the end did not justify the government's use of very unattractive means. In its zeal to accomplish a worthwhile objective (stamping out organized crime), the FBI stooped too low. Its misconduct was not only outrageous but also tortious. That misconduct resulted in severe harm to the persons wrongfully convicted and to their families. Under these unfortunate circumstances, the large damage awards mark the last word of a sad chapter in the annals of federal law enforcement.

Week of August 17, 2009 – In Favor of the Accused or Condemned

Eric Lynn Moore v. Quarterman, No. 05-70038(5th Cir 8/21/2009) (unpublished) (on return from en banc) "[T]he district court was in a better position than this court to judge the credibility of the witnesses who testified on the extent, duration, and causes of Moore's intellectual and adaptive functioning limitations. Because its findings were not 'implausible,' they 'survive[ ] clear error review.'"
Week of August 17, 2009 – In Favor of the State or Government
Leon Taylor v. Roper, 2009 U.S. App. LEXIS 18565 (8th Cir 8/19/2009) "A state court's fact findings are presumed correct unless rebutted by clear and convincing evidence, and Taylor failed to rebut the finding that the state's peremptory jury strikes in the selection of the jury for the guilt phase of his murder prosecution were race neutral and did not violate Batson; with respect to the penalty phase strikes, the state courts' determination that the strikes were race neutral was not contrary to clear and convincing evidence and did not involve an unreasonable application of clearly established federal law." [Clerk's Office supplied header]
Marcel Wayne Williams v. Norris, 2009 U.S. App. LEXIS 18354 (8th Cir 8/17/2009) "The district court erred in granting habeas relief on the ground that trial counsel provided ineffective assistance at the penalty phase of Williams' capital murder case; Williams failed to present any evidence at the state court post-conviction proceeding as to what mitigating evidence counsel had failed to introduce or how it would have changed the outcome of the case, and the district court erred in permitting him to produce this evidence at his federal hearing on his habeas claim; based on the state court record, the state courts' finding of no prejudice was not contrary to nor an unreasonable application of the Strickland standard; turning to Williams' cross-appeal on issues the district court rejected, the district court did not err in finding the state courts made reasonable determinations of the facts in light of the evidence presented in the state court in rejecting Williams' Batson claims; Williams failed to show by clear and convincing evidence that the trial court's finding that a juror was not actually biased was constitutionally infirm; district court did not err in finding state courts properly analyzed and rejected Williams' challenges to admission of a partially inculpatory statement; challenge to constitutionality of the Arkansas Death Penalty statutory framework was foreclosed by the court's decision in Singleton v. Lockhart, 962 F.2d 1315 (8th Cir. 1992); district court did not err in finding challenge to use of prior felony committed as a juvenile was procedurally barred; challenge to use of pecuniary gain aggravator is foreclosed by this court's precedents; state courts did not unreasonably interpret or apply federal precedents when they found the use of the "especially cruel or depraved"aggravator was supported by the evidence and was not unconstitutionally vague or overbroad." [Clerk's Office supplied header]
Paul Everette Woodward v. Epps, 2009 U.S. App. LEXIS 19065 (5th Cir 8/21/2009) Relief denied as to: "whether Woodward's constitutional rights were violated (i) when his trial counsel conceded guilt to the jury without first securing Woodward's consent; (ii) by his attorney's failure to object to the State's use of other bad acts in its closing arguments; [ ] (iii) by the trial court's refusal to provide Woodward with funds to secure an independent psychiatrist to (a) help prepare a mitigation defense and (b) help prepare defense counsel for cross-examination of the state's mental health experts.. . . .and whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson v. Kentucky."
Comm v. Anthony Dick, (Pa 8/18/2009) Appellant failed to timely file his appeal and has therefore defaulted all claims other than statutory review.
Joseph Daniel Burns v. Epps, 2009 U.S. App. LEXIS 19014 (5th Cir 8/21/2009) (unpublished) COA denied. "First, the taking of Burns' handwriting exemplar did not implicate his Fifth or Sixth Amendment rights. Second, Burns has not stated a plausible claim for ineffective assistance of counsel with regard to the trial court's failure to record certain bench conferences, as Burns has failed to allege any specific prejudice. Third, Burns'ineffective-assistance claim with regard to counsel's failure to secure a psychological expert must also fail, as Burns has failed to specifically indicate what assistance such an expert could have provided. Fourth, Burns has not rebutted the state habeas court's determination that it was Burns' decision to forego presenting mitigation evidence and that trial counsel informed Burns of the likely consequence of this decision."




If you have problem with this edition it is available at http://capitaldefenseweekly.com/archives/090824.htm for printing. We'd simply ask that before printing consider our environment and saving our trees.

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: Death Penalty Information Center, Fair Trial Initiative, GRACE, Southern Center for Human Rights, Pennsylvanians for Alternatives to the Death Penalty (where I'm currently the co-chair), & Texas Defender Service. 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
We've been at this 11+ years now. Thanks to all those whose time, efforts, and contributions have made it possible.

SUBSCRIBING & ARCHIVES: The summaries above are normally published forty (40) times (or so) a year. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. To unsubscribe: capital_defense_weekly-unsubscribe@yahoogroups.com
1997-2009COPYRIGHT / FAIR USE NOTICE: In plain English, you can use these materials without attribution (although I would appreciate the attribution) for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc.). You can't use the works created by others contained in this newsletter identified above (normally selected excerpts from the works of others) as I simply can't give away the rights of others to their intellectual property. Any derivative works must provide at least as equal or greater waiver of intellectual property rights. Nothing in this newsletter constitutes legal advice. The legalese, copyright, disclaimers, notices, & terms of usage are available in full here. Where in conflict with the plain English version of this disclaimer / copyright notice, please go with the legalese


DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which the writer(s) have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent an attempt to show what a given Court held, not whether a particular court reached the right decision The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note the citation method we use is to permit readers to readily find opinions either from a given court, Lexis, or the free Lexis product Lexisone.com.

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 "DEATH SENTENCE" or "capital punishment" or "witherspoon"- please note, however, the terms "overproduce" results, including all federal habeas corpus opinions. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts. Thx - karl keys