Leading off this week are two decisions, the Florida Supreme Court's TimothyLee Hurst v. State and the Ninth Circuit's MichaelAllen Hamilton v. Ayers. In both cases the outcome is the same, a new sentencing hearingordered. The cause for both courts' actions is likewise the same,inadequate representation in the penalty phase of their respectivetrials for failing to to adequately investigate and present mitigatoryevidence. A passage from Hamilton sums up both cases, although an equally poignant passage from Hurst could be used:

Hamiltonwas constitutionallyentitledto effective representation at the penalty phase of his capital trial,but he did not receive it. His counsel failed to investigate asubstantial amount of available mitigating evidence concerningHamilton's horrific childhood and mental illness, and thus could notpossibly have made a strategic decision as to a mitigation defense.. .. "[C]ounsel's duty is not discharged merely by presenting somelimited evidence. Rather, a penalty phase ineffective assistance claimdepends on the magnitude of the discrepancy between what counsel didinvestigate and present and what counsel could have investigated andpresented." It is difficult to imagine a more significantdiscrepancy than that between the portrait painted at the penalty phaseof a man whose childhood was "unfortunate" but largely unmarred, andthat of a child who was raised in the presence of incest, rape, andviolence, suffered from mental illness, and was shuffled from home tohome. Although this classic mitigating evidence was available todefense counsel at the time of trial, it was only revealed years afterHamilton was sentenced to death. We therefore hold that Hamilton wasdenied effective assistance of counsel. (emphasis added)


The Virginia Supreme Court grants relief in Alfredo Prieto v. Commonwealth "upon the insufficiency of the verdict forms to providethe jury the specific option to impose a life sentence" Specifically,"a verdict form must provide the jury with the explicit option ofimposing a life sentence even if the jury finds one or both aggravatingfactors.. . As in this case, we have previously set aside adefendant's sentence of death and ordered a new sentencing proceedingbecause '[t]he jury was presented with a confusing situation in whichthe trial court's instructions and the form the jury was given to usein discharging its obligations were in conflict.' No jury instructioncan overcome a verdict form in a capital murder sentencing proceedingwhich is defective for lack of a sentencing option to impose lifeimprisonment even if one or both aggravators are found. even if thejuryfinds both aggravating factors proven, and based upon the insufficiencyof the verdict forms to require the jury to unanimously find beyond areasonable doubt one or both aggravating factors to impose a sentenceof death.. . ."



Two stories continue to dominate the news, Cameron Todd Willingham and Rommell Broom. The Innocence Project has wrapped up most of the available information, as well as significant new developments, here; I would strongly encourage those interested to go there as well as check out this Nightline piece. As to Ohio's horribly botched attempted execution of Rommell Broom, U.S. District JudgeGregory Frost issued a temporary restraining order effective for 10days against the state, apparently preventing a second execution attempt on RomellBroom from going forward as planned Tuesday. Tim Sweeney, anattorney for Broom, also filed an application for a stay with the U.S.Supreme Court on Friday in an attempt to get Broom added to an ongoingfederal lawsuit against Ohio's lethal injection process. Thoughts on the Broom botch from Prof. Deborah Denno are here.

Raoul G. Cantero III (former Florida Supreme Court justice appointed by Gov. JebBush) and Mark R. Schlakman (board chair for the InnocenceProject of Florida and served on theABA's FloridaDeath Penalty Assessment Team) had published in the St. Petersburg Times an op-ed entitled "Floridadeath penalty system needs reform." The Texas Court of Criminal Appeals, in a 6-3 decision (order / dissent),dismissed the appeal ofCharles Dean Hood despite evidence the trial judge (a former CCA judgeas well) and trial prosecutor were sexually involved during the courseof the trial; all three judges up for election this year voted todismiss the appeal.


As always, thanks for reading. - k



PendingExecutions
September
22 Christopher Coleman* (Tex)
24 Kenneth Mosely* (Tex)
30 John Balentine* (Tex)

October
5 Larry Bird Elliott* (Virginia)
8 Max Payne* (Alabama)
9 Lawrence Reynolds, Jr.* (Ohio)
22 Christopher Kennedy (Penn)
27 Reginald Blanton* (Texas)

November
5 Khristian Oliver* (Texas)
10 Darryl Durr* (Ohio)
10 Yosvanis Valle* (Texas)
10 John Allen Muhammad* (Virginia)
17 Gerald Eldridge* (Texas)
18 Danielle Simpson* (Texas)(V)
19 Robert Thompson* (Texas)s

December
2 Cecil Johnson Jr.* (Tenn)
8 Kenneth Biros * (Ohio)
9 Devin Banks (Tenn)

Recent Stays & Reprieves
September
1 Jerome Marshall (Penn)
3 William Wright (Penn)
22 Noel Matos Montalvo (Penn)
22 Romell Broom* (Ohio)
24 Donald Mitchell Tedford (Penn)

November
17 Larry Bill Elliott* (Virginia)

Recent Executions
September
16 Stephen Moody (Tex)

* "serious" execution date / (s) staybelieved likely / (V) Volunteer / note this list may exclude anyrecently added execution date
(note that none of the Pennsylvania dates listed are likely actualexecution dates but the result of an automatic death warrant statute)




Weekof September 14, 2009– InFavor of the Accused or Condemned

TimothyLee Hurst v. State, 2009 Fla. LEXIS 1558 (FL 9/17/2009) The Courtgranted Mr. Hurst relief as trial counsel failed to presentevidencethat inclued his low IQ, borderline intellectual functioning andpossible brain damage due to fetal alcohol syndrome.
Alfredo Prieto v. Commonwealth, 2009 Va. LEXIS 94 (Va 9/18/2009)Relief granted "upon the insufficiency of the verdict forms to providethe jury the specific option to impose a life sentence even if the juryfinds both aggravating factors proven, and based upon the insufficiencyof the verdict forms to require the jury to unanimously find beyond areasonable doubt one or both aggravating factors to impose a sentenceof death.. . ."
MichaelAllen Hamilton v. Ayers, No. 06-99008 (9th Cir 9/18/2009)Relief granted on trial counsel's penalty phase performance:
Weekof September 14, 2009– InFavor of the Stateor Government

WilliamCharles Morva v. Commonwealth,2009 Va. LEXIS 84 (Va 9/18/2009) (dissent) Relief denied, most notably,on the admissibility in the penalty phase of an expert witness'prison risk assessment was excluded as not being particularized enoughto be admissible.
DelmaBanks Jr v Thaler,No. 08-70019-CV0 (5th Cir 09/18/2009) (dissent) "In this thirdproceeding in our court, the State contests the district court'son-remand April 2008 Brady-based grant of habeas relief for Banks'conviction. The district court concluded, inter alia: habeas reliefshould be granted because the State failed to disclose the Cooktranscript to Banks for use in his trial. Because Brady's materialityprong is not satisfied, the habeas relief for Banks' conviction isVACATED. The Court's grant of habeas relief for Banks' sentence is, ofcourse, not affected by this opinion. This matter is remanded todistrict court for further proceedings consistent with this opinion.Vacated in part and remanded." Vacateur of death sentence remains.

Reginald Lewis v. Horn, 2009 U.S. App. LEXIS 20451 (3rd Cir9/14/2009) "District court's grant of defendant's petition for habeasrelief from his death sentence is vacated and remanded as the districtcourt erred in its analysis of the performance prong of Strickland andthis error alone requires a reversal. However, defendant is entitled toan evidentiary hearing to develop the record in support of his penaltyphase ineffective assistance of counsel claim. District court'sconviction of defendant is affirmed where: 1) defendant's Batson claimis rejected as it lacks merit; 2) defendant's guilt phase ineffectiveassistance of counsel claim is rejected; and 3) defendant's Brady claimis rejected as there can be no Brady violation where the prosecutiondid not have custody of a bus ticket and where it would not haveprovided exculpatory evidence. [via Findlaw]
Gerald James Holland v. Anderson, 2009 U.S. App. LEXIS20769 (5th Cir 9/18/2009) "In a capital habeas matter, denial ofpetitioner's petition is affirmed where, although petitioner had theconstitutional right to introduce evidence of the circumstances of hiscapital murder for the resentencing jury to consider as mitigation, theevidence petitioner sought to introduce was not evidence of thecircumstances of his capital crime." [via FindLaw]
JoshuaMaxwell v Thaler,No. 08-70039.0 (5th Cir 09/18/2009) "Maxwell challenges the juryinstructions submitted at both the guilt-innocence and punishmentphases of trial. He also contends that his counsel rendered ineffectiveassistance by failing to object to the allegedly unconstitutionalinstructions. Finding that Maxwell has not made a substantial showingof the denial of a constitutional right, we DENY a COA."
In re Christopher Coleman, 2009 U.S. App. LEXIS 20720(5th Cir9/16/2009) (unpublished) Successive petition and stay requests deniedwhere Mr. Coleman's Brady claim indicates new evidence of witness bias mayhave been found but he failed to present evidence that the State suppressedthat evidence.

Donald Ray Wackerly, II v. Workman, 2009 U.S. App. LEXIS 20537 (10thCir 9/15/2009)"Mr. Wackerly now appeals the district court's disposition to us, andin doing so presents a single issue for our decision: whether trialcounsel rendered ineffective assistance by failing to investigate andthen present certain evidence to the jury during the penalty phase ofhis trial. Like the district court before us, we discern noreasonableprobability that the evidence he points to would have altered hissentence. Accordingly, we affirm." "In a capital habeas matter,denial of the petition is affirmed where petitioner claimed thatdefense counsel rendered ineffective assistance by failing toinvestigate and then present evidence of petitioner's drug addictionand alleged mental impairment to the jury during the penalty phase ofhis trial, but there was no reasonable probability that the evidence hepointed to would have altered his sentence." [via FindLaw]

Brandon Rhode v. Hall, 2009 U.S. App. LEXIS 20712 (11th Cir9/17/2009) Reliefdenied on "Rhode's claim of ineffective penalty phase investigation andpresentation of mitigation evidence by his trial counsel." "In acapital habeas matter, the denial of the petition is affirmed where: 1)the state court of appeals reasonably found that defense counselthought the penalty phase strategy would involve both mitigation andresidual doubt; 2) defendant and the state had the opportunity topresent the state habeas court with their version of the facts; 3) thestate habeas court did not unreasonably find that counsel'sinvestigation of possible mitigation evidence was adequate; 4) theeffectiveness of counsel's representation at sentencing is not an exactderivative of the amount of time counsel spends investigatingmitigation evidence; and 5) the evidence that petitioner faultedcounsel for not presenting to the jury was potentially aggravating orcumulative." [via FindLaw]
Linda Anita Carty v. Thaler, 2009 U.S. App. LEXIS20803 (5th Cir9/17/2009) (modified & published) Relief denied on procedural issueof "whethershe failed to exhaust the claims that she raised for the first time inher Further Additional Response and [substantively] on whether trialcounsel rendered ineffective assistance by failing to notify Corona ofhis spousal privilege and by failing to produce more mitigationevidence during the punishment phase of trial."
State v. Rommell Broom, 2009 Ohio 4778; 2009 Ohio LEXIS 2513(Ohio 9/11/2009)Relief denied on Brady claims as the claim could have been litigatedmore than a decade ago when the materials were first discovered.
Ex parte Medina, 2009 Tex. Crim. App. Unpub. LEXIS 562(Tex. Crim.App. 9/16/2009) (unpub) Petitiondenied without substantial explanation.
Ex parte Roberson, 2009 Tex. Crim. App. Unpub. LEXIS571(Tex. Crim.App. 9/16/2009) (unpub) Petitiondenied without substantial explanation.
Ex parte Hood, 2009 Tex. Crim. App. Unpub. LEXIS 561(Tex. Crim. App. 9/16/2009) (unpub) Petitiondenied without substantial explanation.
Ex parte Garcia, 2009 Tex. Crim. App. Unpub. LEXIS580 (Tex. Crim.App. 9/16/2009) (unpub) Petitiondenied without substantial explanation.
Ex parte Thompson, 2009 Tex. Crim. App. Unpub. LEXIS609 (Tex. Crim.App. 9/16/2009) (unpub) Petitiondenied without substantial explanation.

Weekof September 14, 2009– Other

Newman v. State, 2009 Ark. LEXIS 544, (Ark 9/17/2009) As Appellant is represented by counsel the pro semotions are denied.


(InitialList) Weekof September 7, 2009– InFavor of the Accused or Condemned

GregoryThompson v. Bell, 2009 U.S. App. LEXIS 20246 (6th Cir.9/11/2009) The district court erred when it denied Thompson'sRule 60(b)motion and his habeas petition based upon competency to be executed, aswell as certain ineffective assistance counsel claims. "Onremand, the district court shall first ruleon the merits of Thompson's remaining ineffective assistance claims,and shall only address the incompetency question if it rejectsthe ineffective assistance claims on their merits. If the court rejectsthe ineffective assistance claims, it must then conduct an evidentiaryhearing to determine Thompson's competency for execution."
RobertSimon Jr. v. Epps, 2009 U.S. App. LEXIS 20102 (5th Cir 9/9/2009)(unpublished) COA granted on ineffective assistance at sentencing. Briefing ordered on whether "1.Under Strickland, was it deficient performance forSimon's trial counsel not to investigate Simon's history of familialabuse? 2. If the jury had heard evidence of Simon's history offamilial abuse, is there a reasonable probability that it would nothave returned a sentence of death? 3. Considering that neither theSupreme Court of Mississippi northe district court held an evidentiary hearing to determine the actualcontours of Simon's trial counsel's investigation, what must we assumefor the sake of this appeal? Further, if we find Simon's claims to bemeritorious, should we remand his petition to the district court for anevidentiary hearing?"
ErnestSimmonsv. Beard, No. 05-9001 (3rd Cir 9/11/2009) New trial ordered inlight of numerous Brady violations.

VivaLeroy Nash v. Ryan,No. 06-99007 (9th Cir 9/11/2009) "The State [ ] argues that,given the record-based nature of an appeal, the statutory right tocompetence should not apply to an appeal. We do not read Rohan as solimited. While an appeal is record-based, that does not mean that ahabeas petitioner in a capital case is relegated to a nonexistent role.Meaningful assistance of appellate counsel may require rationalcommunication between counsel and a habeas petitioner" "Nash's rapidlydeteriorating mentalcondition leads us to conclude that the precise issue we consider here- whether Nash is competent to pursue the pending appeal of thedistrict court's denial of his habeas petition. . .." "[W]e grant thepending motion for a limited remand. On remand, we direct the districtcourt to conduct appropriate proceedings to determine whether Nash iscompetent to communicate rationally"

EdwardHarold Schadv. Ryan,No. 07-99005 (9th Cir 9/11/2009) District court erred in denying anevidentiary hearing on Petitioner's sentencing ineffectiveness claim;"remand for the district court to consider, using the proper standard,whether Schad was diligent in pursuing state court relief, and if so,to hold a hearing on the merits of his ineffectiveness claim." Guilt phase Brady claim, State's failure to produce letters written bytheprosecutor on behalf of a government witness, resulted in littleprejudice and therefore relief denied.


(InitialList) Weekof September 7, 2009– InFavor of the Stateor Government

BillyJohn Galloway v. Thaler, 2009 U.S. App. LEXIS 20098 (5th Cir9/9/2009) (unpublished) "Galloway alleges he received ineffectiveassistance of counsel becausehis trial counsel failed to investigate and present mitigating evidenceduring the punishment phase of trial. The district court held thatGalloway had not shown deficient performance ofcounsel andprejudice resulting therefrom. Because jurists of reason would not finddebatable the district court's ruling, Galloway's application for a COAis DENIED."
MartinRobles v. Thaler,2009 U.S. App. LEXIS 20070 (5th Cir 9/8/2009)(unpublished) COA denied on claims pertaining to (a) procedural defaultof state constitutional law claims; (b) that the mitigation instruction placed an unconstitutional burden onthe defense; and (c) "the mitigation special issue violated hisconstitutional rights, because its phrasing could confuse the jury andrender them incapable of giving effect to mitigating evidence."

Weekof August 31 2009– InFavor of the Accused or Condemned
RichardFairchild v. Workman, 2009 U.S. App. LEXIS 19929 (10thCir 8/31/2009) Remand ordered as "Mr. Fairchild's ineffectiveassistance of counsel claim isunexhausted and [ ] the district court should [have] determine[d] inthe firstinstance whether it is appropriate to stay and abate the action on thepetition in order to give Mr. Fairchild an opportunity to exhaust thisclaim. Accordingly, we VACATE the districtcourt's judgment and REMANDto the district court to make the stay-and-abeyance determination andto conduct further proceedings consistent with this opinion. We do notreach the merits of Mr. Fairchild's other appellate claims.
Weekof August 31, 2009– InFavor of the Stateor Government

BennyLee Hodge v. Haeberlin, 2009 U.S. App. LEXIS 19968 (6thCir. 9/4/2009) (dissent) "The district court properly denied habeascorpus in this casebecause petitioner Benny Lee Hodge has not shown that his trial counselrendered ineffective assistance. A jury convicted Hodge and sentencedhim to death for his role in a 1985 double murder. Hodge advancesnumerous claims of ineffective assistance of counsel, including a claimthat counsel prevented Hodge from testifying on his own behalf and thatcounsel ineffectively cross-examined the prosecution's keywitness. Because the record does not show that any alleged mistake byHodge's counsel meets the standards for deficient performance andprejudice established by Strickland v.Washington,Hodge is not entitled to habeas relief."
RomellBroom v. Strickland, 2009 U.S. App. LEXIS 19622 (6th Cir.9/1/2009) Relief denied on district court's " dismissal ofhis 42 U.S.C.§ 1983challenge to Ohio's method of execution."
Stateex rel John E. Winfield v. Roper,2009 Mo. LEXIS 384 (Mo 9/1/2009) "Winfield now seeks a writ ofhabeascorpus, alleging that, during the penalty phase of his trial, the juryimproperly was directed to continue deliberating after it indicated itwas deadlocked. This Court appointed a special master, who heardtestimony from the trial judge, all the trial jurors, the bailiff fromthe trial and others and who subsequently filed a report concluding thejury did not advise that it was deadlocked on whether to impose asentence of death or life in prison and that it was not instructed tocontinue deliberating." [via Clerk of Court supplied summary]

Statev. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009) Reliefdenied on claims that "the district court erred in failing to grant himanew trial or, at a minimum, hold an evidentiary hearing to determine(1) whether Nissen gave perjured testimony at Lotter's trial and (2)whether the prosecution knew or should have known about N Nissen'sperjury at the time of Lotter's trial. Lotter asserts that the districtcourt also erred in not granting postconviction relief on the groundthat his testimony was coerced by the threat of cruel and unusualpunishment."
JamesDelano Winkles v. State, 2009 Fla. LEXIS 1414 (FL 9/3/2009) "Winkles argues that thepostconviction court should have determined that trial counsel providedineffective assistance by (A) advising Winkles to plead guilty and towaive a penalty-phase jury in the hope that if he were sentenced todeath, the sentences would be reversed pursuant to Ring; and (B)failing to present a mental health expert and Winkles` uncle, James C.Winkles (J.C.), as penalty-phase witnesses."
TavaresJ. Wright v. State,2009 Fla. LEXIS 1416 (FL 9/3/2009) "In this direct appeal, Wrightchallenges one aspect of the guilt phase and three aspects of thepenalty phase, as follows: (1) whether the trial court erred inadmitting collateral-crime evidence as inextricably intertwined withthe offenses on trial, which Wright contends became a feature of thetrial that rendered the probative value of this evidence to besubstantially outweighed by its prejudicial effect; (2) whether thetrial court erred in denying Wright`s motions to declare Florida`scapital-sentencing scheme unconstitutional pursuit to Ring v. Arizona,536 U.S. 584 (2002); (3) whether the trial court erred in finding thatthe murders were committed in a cold, calculated, and premeditatedmanner; and (4) whether the trial court erred in finding that thedominant purpose for committing the murders was witness elimination toavoid arrest. We conclude that Wright has not demonstrated a basis forrelief on any of these issues and that sufficient evidence supportedeach of the death sentences, which we further hold are proportionatepunishments for Wright`s capital convictions."
Statev. James Were, n.k.a. Namir Abdul Mateen, 2009 Ohio App. LEXIS3825 (Ohio 1st App 9/2/2009) Relief denied holding that the court belowdid not err when "it adopted the state's findings offactand conclusions of law;" (b) denied claims "(1)that R.C. 2953.21 etseq. is unconstitutional because it does not provide "an adequatecorrective process," and (2) that he had been denied meaningfulpostconviction review as a consequence of an incomplete trial record;(c) it "denied petitioner'spostconvictionclaim contending that the administrative sanctions imposed on him bythe Ohio Department of Rehabilitation constituted punishment for thesame conduct that had led to his aggravated-murder and kidnappingconvictions" (d) Batson; (e) "deniedas unsupported petitioner'spostconviction claims alleging (1) grand-jury bias, (2) the denial ofhis right to consult privately with counsel, (3) judicial bias, (4)impermissible contact between the trial court and the jury, (5)prosecutorial misconduct by suborning perjured testimony andwithholding material evidence, (6) trial counsel's ineffectivenessin failing to raise these matters, and (7) other inadequacies intrial counsel's preparation and presentation of his case at theguilt and penalty phases of his trial and at his mental-retardationhearing, including counsel's failure to request experts, to advancealternative-killer defenses, to effectively cross-examine state'switnesses, and to effectively challenge state's experts;" (f) trialcourt's use of a stun belt; (g) actual innocence; (h) cumulative error;and (i) denial of discovery." [via Clerk's Office summary]
Statev. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009) Reliefdenied on claims that "the district court erred in failing to grant himanew trial or, at a minimum, hold an evidentiary hearing to determine(1) whether N Nissen gave perjured testimony at Lotter's trial and (2)whether the prosecution knew or should have known about N Nissen'sperjury at the time of Lotter's trial. Lotter asserts that the districtcourt also erred in not granting postconviction relief on the groundthat his testimony was coerced by the threat of cruel and unusualpunishment."
Weekof August 24, 2009– InFavor of the Accused or Condemned

MichaelLee Wilson v. Workman & Donald Wackerly v. Workman,Nos. No. 06-5179, 07-7034 & 07-7056 (10th Cir 8/28/2009) (enbanc) (dissent) The Circuit en banc holds, in relation to whether ornotan "adjudication on the merits," that the Wilson panel wascorrectin applying de novo review and incorrect in Workman in notexamining the issues de novo. The opinion is a highly technicalanalysis of Oklahoma's rules of procedure and the nature of thedeference due certain claims. Specifically, "[w]hen the OCCA, pursuantto Rule 3.11, refuses to grant an evidentiary hearing to considermaterial, non-record evidence of ineffective assistance of counsel thatthe defendant has diligently sought to develop, and then rules on theineffectiveness claim without consideration of this evidence, theOCCA's denial of the claim is not an adjudication on the merits towhich the federalcourts owe AEDPA deference."
HowardDean Goodin v. State,No. 2007-CA-00972-SCT; (Miss 8/27/2009) The Court below failed tofollow the mandate, "through no fault of the trial court," from theCourt's prior order in this matter. "This case is remanded to theCircuit Court of Newton Countyfor a full evidentiary hearing and ruling on the following issues: (1)mental retardation; (2) ineffective assistance of counsel on the issueof mental illness and (3) ineffective assistance of counsel on theissue of competency."
Weekof August 24, 2009– InFavor of the Stateor Government

Statev. Dane Locklear, Jr., 2009 N.C. LEXIS 814 (NC 8/28/209) Reliefdenied on 32 issues. Most notably, "[o]nappeal, the defense argued that by admitting the opinion testimonyof the non-testifying experts, the trial court violated the defendant'sConfrontation Clause rights. Rejecting the State's argument to thecontrary, the North Carolina Supreme Court cited Melendez-Diazand held that the reports were testimonial. It went to conclude that a Crawfordviolation occurred because the State did not establish unavailabilityof the witnesses or a prior opportunity to cross-examine them, but thatthe error was harmless beyond a reasonable doubt." [via North CarolinaCriminal Law] [Defenseappellate brief here]

Statev. George Thomas Wilkerson,2009 N.C. LEXIS 722 (NC 8/28/2009) Relief denied on 21 claims includinggroups of claims relating to the (a) admission of false testimonyregarding cooperating witness' agreement with the state; (b) admissionof improper opinion testimony, hearsay, and speculation as to theAppellants culpability; (c.) use of inadmissible characterevidence;(d) prosecutorial misconduct in guilt phase closing argument as tofactsoutside the record and prosecutor's personal feelings; (e) cumulativeerror; (f) insufficient evidence of felony murder due to failuretoprove first-degree burglary; (g) admission of statements andevidenceillegally obtained; and (h) preservation issues. [Defenseappellate brief here]

LindaAnita Carty v. Thaler, 2009U.S. App. LEXIS 19436 (5th Cir8/28/2009) (unpublished) Relief denied on procedural issue of "whethershe failed to exhaust the claims that she raised for the first time inher Further Additional Response and [substantively] on whether trialcounsel rendered ineffective assistance by failing to notify Corona ofhis spousal privilege and by failing to produce more mitigationevidence during the punishment phase of trial."

State v. George Martin, 2009 Ala. Crim. App. LEXIS 112(Ala. Crim.App. 8/28/2009) "Rule 32 petition could not provide the relief Martinrequested." Therefore "the circuit court erred in granting Martinpermission to file an out-of-time application for a rehearing with thiscourt and a petition for a writ of certiorari in the Alabama SupremeCourt if this court denied his application for a rehearing."

JimmyDon Wooten v. Norris, 2009 U.S. App. LEXIS 19193 (8thCir 8/26/2009) "A habeas petitioner represented in his statepost-convictionproceedings by an incompetent convicted felon from another state (thelicensing state did not know about the conviction until he wasconvicted 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 forall this mess instate court. From one who practices in that state, it is unlikely." [via JohnWesley Hall's Law of Criminal Defense]
JohnErrol Ferguson v. Sec'y for the Dep't of Corr., 2009 U.S. App.LEXIS 19198(11th Cir 8/26/2009) Mr. Ferguson "filed a federal habeas corpuspetition pursuant to 28 U.S.C. § 2254 in which he made at leasteleven claims. He also moved to stay the federal habeas proceedingsbased on his alleged incompetency, a motion denied by the districtcourt, which held an evidentiary hearing on the issue and found himcompetent to proceed with the petition. The court subsequently deniedFerguson's petition in its entirety, but granted a certificate ofappealability on all of the issues raised therein. Ferguson hasappealed the district court's dismissal of nine of his claims and alsochallenges that court's denial of his motion to stay the proceedings.The State of Florida filed a cross-appeal regarding the districtcourt's decision to hold an evidentiary hearing on the issue ofFerguson's competency."After thoroughly reviewing the record and theparties' briefs and hearing oral argument, we AFFIRM the districtcourt's denial of Ferguson's petition and motion to stay."
StevenDouglas Hayward v. State, SC07-1234 (FL 8/27/2009) Relief denied onclaims that: "asserts that (1) the statements of the murder victim topolice describing his attacker were improperly admitted under theexcited utterance and dying declaration exceptions to the hearsay rule,and in violation of the Confrontation Clause; (2) introduction ofHayward`s statements to police at the rooming house and theirobservations while there violated his Fourth Amendment rights; (3)introduction of the recorded jail conversations between Hayward andSmith were more prejudicial than probative due to the vulgarity of thelanguage used, affecting both the guilt and penalty phases; (4)comments made by the prosecutor in closing argument during the penaltyphase comparing the life choices made by the victim and Haywardconstituted prosecutorial misconduct amounting to fundamental error;(5) there was insufficient evidence concerning the identity of theshooter; (6) there was insufficient evidence as to whether a robberywas actually accomplished; (7) there was insufficient evidenceestablishing premeditation; (8) the standard jury instruction onpremeditation is insufficient; (9) Florida`s sentencing scheme isunconstitutional under the United States Supreme Court`s decision inRing v. Arizona; and (10) imposition of a death sentence based on aneight-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 offact and conclusions of law wholesale" was improper. The Courtstrongly hints that it didn't help that the trial court judge has beenstripped office due to misconduct (taking bribes).
Bruce EarlWard v. Norris, 2009 U.S. App. LEXIS 18975 (8th Cir 8/24/2009) "District court did noterr in concluding that Ward's Rule 60(b) and Rule 59 motionsconstituted second or successive habeas petitions as the motions, insubstance, comprise a claim of ineffective or incompetentrepresentation by federal habeas counsel; as a result the requestedrelief was barred by AEDPA, and the district court did not err indismissing the motions; claims on appeal concerning ineffectiveassistance of counsel amounted to an impermissible broadening of theclaims presented to the state courts and the federal district court,and appellate review would be limited to the facts related to theargument made to the state courts; with respect to Ward's claim thatthe trial court's disparate treatment of defense counsel's requests toapproach the bench deprived him of a fair trial, however ill-foundedthe trial court's reasoning for its actions may have been, its rulingson those requests did not reflect actual or presumed bias rising to thelevel of a constitutional violation or a structural error. JudgeMelloy, concurring in part and dissenting in part."



If youhave problem with thisedition it isavailableat http://capitaldefenseweekly.com/archives/090914.htmfor printing. We'd simply ask that before printing consider ourenvironment and saving our trees. If you find thisemailuseful, feel free to forward it or excerpt it. We prefer attribution,but don't require it. - k



Asa reminder,we don't charge a subscription fee, butif you find the weekly useful we'd appreciate even a nominal taxdeductible donation to a nonprofit involved in someaspect of the capital punishment issue, such as Pennsylvaniansfor Alternatives to the Death Penalty (website/donate)(where I'm currently theco-chair) or the FairTrial Initiative (website/donate). On each of the abovelinks you're able to donate as little or as much as you want, or evenset up a monthly automated giving amount. As always, thanks forreading, and special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named. - k


SMALL PRINT
We've been atthis 11+ years now. Thanks to allthose whose time,efforts, and contributions have made it possible.

SUBSCRIBING& ARCHIVES:Thesummaries above are normally publishedforty (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 wouldappreciate the attribution) for any noncommercial purposes you see fit,(such as professional education, your newsletter, etc.). You can't usethe works created by others contained in this newsletter identifiedabove (normally selected excerpts from the works of others) as I simplycan't give away the rights of others to their intellectual property.Any derivative works must provide at least as equal or greater waiverof intellectual property rights. Nothing in this newsletter constituteslegal 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:InplainEnglish, due your own due diligence. Legalese: Use does not constituteestablishment of attorney-client relationship. On a semi-regular basiscases in which the writer(s) have participated in one manner or another(including as counsel of record) may be covered here. As always, theviews expressed here represent an attempt to show what a given Courtheld, not whether a particular court reached the right decision Theopinions noted above are normally "slip opinions" that may be modifiedor withdrawn by the issuing court without notice. Note the citationmethod we use is to permit readers to readily find opinions either froma given court, Lexis, or the free Lexis product Lexisone.com.

OPENRESEARCH 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 "SPECIALQUESTIONS" or "SENTENCE OF DEATH" OR "DEATH SENTENCE" or "capitalpunishment" or "witherspoon"-pleasenote, however, the terms "overproduce"results, including all federal habeas corpus opinions. Executionand other newsinformation derivedfrom Rick Halperin, DPIC, Steve Hall & media accounts. Thx-karl keys