The news of the edition is stays, including those of Messrs. Cannady (Tex), Cathey (Tex), Eaton (Wyo), Gray (US Mil) & Stenson (Wash), as well as Ms. Franks (La). Not that long ago many commentators were realistically expecting 200+ executions a year by now, especially following the election of a President many had called the Texecutioner. This year's total executions will be no more than 37 (and possibly just 36), the smallest number since 1994, down from the 1999 modern era high of 98 executions. Congrats and thanks to all who have contributed to the 60%+ drop in executions in just a decade.


A California Court of Appeal panel in Michael Morales v. Cal. Dept. Corrections affirmed a lower court's order invalidating California's lethal injection protocol as that protocol failed to follow the state's Administrative Procedure Act (APA). The decision effectively places on hold indefinitely all executions in California.


On the Supreme Court front, the Court Dismissed as Improvidently Granted Bell v Kelly. Oral argument had previously been heard in the case. The issue on which cert had been granted was:


Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims "adjudicated on the merits" in state court, to evaluate a claim predicated on evidence the state court refused to consider and that was received for the first time in a federal evidentiary hearing?

Prof. Michael Mello has been called to argue before a higher court. Mello spent his early career in the 1980s as a public defender in Florida's death machine. More recently, he taught at Vermont Law and served as an adviser & friend to many.


In the realm of new scholarship Professor Susan Bandes has this new piece up at SSRN, titled "Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty."

Finally, there are a large number of "orders" from the Texas Court of Criminal Appeals that are being worked through. What passes for an order from the CCA seems much like an "unpublished opinion" or "mem.op." from another court. As a general rule run-of-the-mill "orders" aren't covered here. Lexis, likewise, doesn't usually report these CCA "orders." Any suggestions on how to treat the orders & whether they should be covered in the weekly edition (as I don't want to mindlessly duplicate someone else's work) would be welcome. We've been tracking them, but not digesting them. (We've been relying heavily on the Texas Court of Criminal Appeals blog for published opinions).


As always thanks for reading. - k


Pending Executions
December
5 Joseph Gardner - SC

Recent Executions
November
6 Elkie Taylor - Tex.
12 George Whittaker III - Tx
13 Denard Manns - Tex.
19 Gregory Bryant-Bey - Ohio
20 Robert Hudson - Tex.
21 Marco Chapman - Ky*(vol)

Stays
November
18 Eric Cathey - Tex.
19 Rogelio Cannady - Tex.

December
3 Darold Stenson - Wash.
8 Antoinette Frank - La.
10 Ronald Gray - Mil.

19 Dale Easton - Wyo.

(Please note that due to a typographical error in wire accounts Devon Banks was listed previously as having a December 2008 execution date, in fact it was for December 2009)


* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]




(Initial List)Week of November 24, 2008 – In Favor of the State or Government


Alan Dale Walker v. Epps, No. 08-60652 (5th Cir 11/24/2008) Relief denied as "a statute of limitations applies to the plaintiffs' § 1983 method-of-execution action, notwithstanding the nature of the relief they request. We have also held that the statute was not tolled in this case."

Vincent Doan v. Carter, 2008 U.S. App. LEXIS 24198 (6th Cir 11/26/2008) Relief denied on claims arising out of claimed Brady violations, "that the trial court violated his due process rights with a jury instruction that allegedly reduced the State's burden of proof, and that the trial court violated his Confrontation Clause rights by admitting inadmissible hearsay testimony."
Clifton Williams v. State, No. AP 75,541 (Tx CCA 11/26/2008) Relief denied on claims relating to mental retardation, admissibility of defendant's statements, reference to matters outside the record in penalty phase closings, sufficiency of future dangerousness, as well as the usual preservation issues.
Anthony Floyd Wainwright v. State, 2008 Fla. LEXIS 2278 (FL 11/26/2008) "In conclusion, given the totality of the evidence, [the proffered new evidence] would not raise reasonable doubt about the convictions or undermine any of the six aggravators found in this case. While Hamilton's statement asserts that Wainwright did not personally participate in the sexual battery, the evidence as a whole demonstrates that Wainwright was a full and willing participant in the remainder of the criminal events leading to Gayheart's murder. Therefore, there is no probability that Hamilton's statement would produce an acquittal or life sentence on retrial"
Ralph Baze v. Comm, 2008 Ky. LEXIS 297 (Ky 11/26/2008) "At the heart of Appellant's motion is his assertion that his trial should have been conducted in Franklin County. The time for such complaint has long since passed in the fourteen years since Appellant's conviction. Counsel's attempt to characterize this claim as jurisdictional is misguided, as no jurisdictional defect arose where Judge Mains conducted the trial in his own"

State v. Jerry Lawson, 2008 Ohio App. LEXIS 5070 (Ohio 12th App 11/24/2008) Relief under Atkins denied in light of a failure to show, under state law, significant subaverage intellectual functioning and significant limitations in two or more adaptive skills.



Week of November 17, 2008 – In Favor of the Defendant or the Condemned


Michael Morales v. Cal. Dept. Corrections, 2008 Cal. App. LEXIS 2283 (CA 1st App 11/21/2008) "The procedural requirements designated by the APA for administrative regulations are applicable to OP 770. Appellants failure to comply with them invalidates the challenged protocol."

Adam Kelly Ward v. State, 2008 Tex. Crim. App. LEXIS 1441 (Tex. Crim. App. 11/19/2008) Appellant's counsel removed as the trial court erred in the appointment of unqualified counsel for this capital appeal.
Week of November 17, 2008 – In Favor of the State or Government

Shawn Hawkins v. Coyle, 2008 U.S. App. LEXIS 23714 (6th Cir. 11/18/2008) "In a death sentence for charges related to two felony-murders premised upon aggravated robbery, grant of writ of habeas corpus is reversed in part and affirmed in part where: 1) affidavits submitted by petitioner's family members were insufficient to establish prejudice under Strickland v. Washington; 2) the result reached by the state courts (denial of petitioner's claim of ineffective assistance of counsel) was neither contrary to nor an unreasonable application of clearly established federal law; 3) the district court did not err in holding that state courts' decisions finding petitioner's Fifth, Sixth, Eighth, and Fourteenth Amendment claims meritless neither resulted in a judgment that was contrary to or an unreasonable application of clearly established federal law, nor a judgment based on an unreasonable determination of the evidence; 4) petitioner's arguments alleging that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland were unavailing; and 5) petitioner's confrontation, due process, and equal protection rights were not violated because he was not allowed to access juvenile records of witness for purposes of impeachment." [via FindLaw]
Gregory Bey v. Bagley, 2008 U.S. App. LEXIS 23818 (6th Cir. 11/17/2008) "Motion for stay of execution was denied because 28 U.S.C.S. § 2283, was a broad prohibition that required a specific, [vi recognized exception and the inmate had offered nothing that would even begin to satisfy the strict statutory requirements for a second or successive habeas claim and there was no basis to stay the proceedings." [via LexisOne]
Comm. v. Christopher Kennedy, 2008 Pa. LEXIS 2050 (PA 11/20/2008) "Where defendant admitted to intentionally shooting the victim in his leg as part of a robbery scheme and the Commonwealth presented evidence to support its theory that defendant shot the victim since the victim was unable to open a second safe, there was sufficient evidence to convict defendant of first degree murder under 18 Pa.C.S. § 2502." [via Lexisone]
Comm v. Henry Fahy, 2008 Pa. LEXIS 2051 (PA 11/21/2008) Relief denied, most notably, on newly discovered evidence claim relating to alleged racial bias in jury selection. Factual predicate came to light following investigative journalism in the Philadelphia DA's office. Factual predicate, court holds, could have been discover sooner.
Comm v. Ralph Trent Stokes, 2008 Pa. LEXIS 2052 (PA 11/21/2008) "A judgment denying appellant Post Conviction Relief Act (PCRA) relief was affirmed, as he had not satisfied his claimed exceptions (42 Pa.C.S. § 9545(b)(1)(i), (ii)) to the PCRA's timeliness requirement. He failed to explain why he did not request files earlier, failing to establish the due diligence required to excuse over a decade of inaction." [via Lexisone]
Comm. v. Richard Baumhammers, 2008 Pa. LEXIS 2078 (11/20/2008) "Defendant was properly sentenced to death for first-degree murder because the evidence at trial overwhelmingly supported his convictions. The relaxed waiver rule did not apply to the issues defendant failed to preserve on appeal, and no violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5704, occurred." [via Lexisone]
Comm v. Donald Tedford, 2008 Pa. LEXIS 2079 (PA 11/19/2008) "Denial of PCR due to ineffective assistance of counsel was proper as, inter alia, appellate counsel had no duty to interview jurors and present claim of jury taint based on newsletter in jury room and inmate's waiver of right to present mitigating evidence was valid, as waiver colloquy made it clear inmate understood right to present such evidence." [via Lexisone]
State v. Patrick Kennedy, 2008 La. LEXIS 2646 (La 11/21/2008) "On remand from the United States Supreme Court, Kennedy v. Louisiana, and in light of the Supreme Court's holding that even in cases involving the rape of a child, "[a]s it relates to crimes against individuals . . . the death penalty should not be expanded to instances where the victim's life was not taken," which effectively sets aside defendant's death sentence, we are constrained to grant defendant's present motion and to remand this case to the 24th Judicial District Court for the resentencing of defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence."
Week of November 10, 2008 – In Favor of the Defendant or the Condemned


Dale Wayne Eaton v. State, 2008 Wyo. LEXIS 140 (Wyo 11/14/2008) "District court's warrant of execution was quashed and vacated as it did not establish a specific date for execution, Wyo. Stat. Ann. §§ 7-13-905, 906, 909, and 910. Supreme court set a specific date for execution, which would be stayed pending defendant's timely application to the United States Supreme Court seeking a writ of certiorari." [via Lexisone]
State v. Faunce Levon Pearce, 2008 Fla. LEXIS 2088 (FL 11/13/2008) Guilt phase relief denied, however, penalty phase relief granted. "We find there is competent, substantial evidence to support the trial court's finding that counsel did not spend sufficient time to prepare for mitigation prior to Pearce's waiver. In preparing for the penalty phase, counsel never investigated Pearce's background, never interviewed members of Pearce's family, and never investigated mental health issues. Therefore, counsel was unable to advise Pearce as to potential mitigation. Thus, the evidence supports the trial court's finding that Pearce's waiver of the presentation of mitigating evidence was not knowingly, voluntarily, and intelligently made. Pearce suffered prejudice based on this lack of a knowing waiver because there was substantial mitigating evidence which available but undiscovered. We affirm the trial court's conclusion that Pearce established a claim for ineffective assistance of counsel in the penalty phase of the trial."
Week of November 10, 2008 – In Favor of the State or Government

Roderick Davie v. Mitchell, No. 03-4293 (6th Cir 11/14/2008) (three opinions/incl. a dissent) From Judge Merritt's dissent: "[A]s I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination." Findlaw sums it up as: "[i]n a death penalty case, denial of a petition for a writ of habeas corpus is affirmed where the district court correctly rejected claims that: 1) petitioner's Miranda rights had been violated by police actions in this case, which included four instances of questioning, each following a Miranda warning, over a six-hour period; 2) penalty phase jury instructions were constitutionally deficient; and 3) prosecutorial misconduct denied him due process."

Robert Bryant Melson v. Allen, No. 0614047 (11th Cir 11/14/2008) "Death sentence for three robbery-murder convictions is affirmed where: 1) criminal petitioner's federal habeas petition is untimely under two sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); 2) neither triggering date was tolled by petitioner's Rule 32 proceedings; 3) petitioner also failed to show that the AEDPA's one-year statute of limitation should have been equitably tolled based on the conduct of his state post-conviction attorneys or his claims of actual innocence; and 4) there were no legal grounds excusing the untimeliness of his federal habeas petition." [via FindLaw]

If you have problem with this edition it is available at http://capitaldefenseweekly.com/archives/081124.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: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center, Fair Trial Initiative, 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



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