Lexis reveals no new favorable published opinions from the various appellate courts around the country.

In the news, Governor Ted Strickland of Ohio granted clemency to Jeffrey Hill following the unanimous rationale and recommendation of the Ohio Parole Board which had cited five basic reasons for its recommendation: "the views of the victim's family, the lack of adequate representation by counsel at Mr. Hill's sentencing, the remorse demonstrated by Mr. Hill regarding his actions, the lack of proportionality of the sentence of death in this case when compared with similar murder cases, and the expressed views of two justices of the Ohio Supreme Court which reviewed this case on appeal." The New Mexico House voted last week to repeal that state's death penalty. The Montana Senate voted, likewise, Monday to repeal that state's capital sentencing scheme. DPIC notes several additional states recently introduced legislation to repeal or limit the death penalty. including: Nebraska, Colorado, New Hampshire, Maryland, Washington, and Kansas.

As noted in the last edition, the Department of Justice has reopened the comments period for the "Certification Process for State Capital Counsel Systems" under the PATRIOT Act, the so-called "fast-track" or "opt-in" provisions of AEDPA. "Please address all comments regarding this notice, by U.S. mail, to: Ben Gorban, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper handling, please reference OJP Docket No. 1464 on your correspondence." Comments are due April 6, 2009.

My apologies as I am currently on trial / in trial (depending on your region of the country), for what will be my sixth week of the new year. More precisely, I'm now four weeks in to a murder trial on the most recent trial, and my attention is understandably drawn there rather than cranking out the weekly email edition. I close in the morning so the normal schedule & length of publication here and on the blog should resume starting in the next few days, assuming something really bizarre doesn't happen.


As always, thanks for reading. - k

Recent Executions
February
4 David Martinez - Tex*
4 Steve Henley - Tenn*
10 Dale Scheanette - Tex*
12 Johnnie Johnson - Tex*
12 Danny Joe Bradley - Ala*


Pending Executions
February
19 Edward Bell - Va*
20 Luke Williams - SC


March
3 Jeffrey Hill - Ohio* (commuted to life)
3 Willie Pondexter - Tex*
4 Kenneth Morris - Tex*
10 James Martinez - Tex*
11 Luis Salazar - Tex*
19 Phillip Halford - Ala*


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

(Initial List) Week of February 9, 2009 – In Favor of the State or Government


Franklin Dewayne Alix v. Quarterman, 2009 U.S. App. LEXIS 2595 (5th Cir 2/9/2009) (unpublished) "Certificate of Appealability under 28 U.S.C.S. § 2253 was denied because burden was properly placed on inmate to prove that State knowingly suborned perjury to establish Fourteenth Amendment prosecutorial misconduct due process claim; also, habeas relief was not available for due process claim based on evidence improperly admitted under state law." [via LexisOne]
Dale Devon Scheanette vs. Quarterman, No. 08-70028 (5th Cir 2/9/2009) (unpublished) Under Fifth Circuit precedent a Rule 60(b) denial requires a COA to appeal. Grounds set forth in the Rule 60B motion denied by the court below are likewise denied on appeal
United States v. Daryl Lawrence, 2009 U.S. App. LEXIS 2622; 2009 FED App. 0047P (6th Cir. 2/11/2009) "In appeal by the government after the district court overturned a death sentence because of jury verdict inconsistencies, the district court's decision is vacated and the original sentence reinstated where: 1) 18 U.S.C. section 3731 authorizes the government to appeal the district court's order vacating the original sentence ordering a new capital sentencing proceeding as long as the appeal does not offend the Double Jeopardy Clause; 2) the appeal did not violate the Double Jeopardy Clause; and 3) the jury verdicts were not inconsistent since the jury followed the court's instructions and spoke their real conclusions." [via FindLaw]
Wayne Tompkins v. Sec'y, Dep't of Corr., 2009 U.S. App. LEXIS 2403 (11th Cir 2/9/2009) "A state death row inmate's application for a COA was denied because the Panetti decision was limited to Ford incompetency claims, and he did not have a Ford claim, a § 1983 case was the proper way to challenge Florida's lethal injection procedure, and the delay in his execution did not violate the Eighth Amendment." [via LexisOne]
Carlton Michael Gary v. Hall, 2009 U.S. App. LEXIS 2783 (11th Cir 2/12/2009) "In conviction of three counts of murder, rape, and burglary and sentence of death, denial of petition for writ of habeas corpus is affirmed over claims that: 1) the superior court erred by denying petitioner's request for funds to hire a forensic serologist; 2) the district court abused its discretion in denying petitioner funds to have his semen tested; 3) and the prosecution denied petitioner a fair trial by withholding evidence favorable to the defense." [via FindLaw]
Jason Andrew Simpson v. State, 2009 Fla. LEXIS 236 (FL 2/12/2009) "Convictions and death sentences for two counts of first degree murder are affirmed over claims of error that: 1)the trial court did not abuse its discretion in concluding that the juror's expression of confusion arising from other jurors' misstatements of the law was inherent in the verdicts and, therefore, not a permissible method of impeaching those verdicts; 2) the trial court did not err in allowing the jury to proceed to the penalty phase after the juror expressed that the guilty verdicts were not hers because there was no basis for allowing the juror to recede from her verdict; 3) the trial court also did not err in denying appellant's motion for a jury interview because the juror's concerns arose from matters which inhered in the verdict itself and thus could not be the subject of a jury interview; 4) the trial court did not err in its handling of the issues arising from the juror's alleged recantation of her guilty verdicts; 5) defendant was not entitled a new trial ! because the trial court never ruled on admissibility of defendant's "reverse Williams rule" motion; 6) prosecutorial comments during guilt and penalty phase closing arguments were brief and did not constitute fundamental error; 7) there was sufficient evidence to support appellant's convictions; and based on the specific facts and circumstances of the murders and the aggravators and mitigators found by the trial court in this case, the death sentences were proportionate." [via FindLaw]
State v. Jesus Sevilla, 2009 Ohio 576 (Ohio 10th App 2/10/2009) "A trial court had no jurisdiction to consider an inmate's postconviction relief petition because (1) the inmate filed the petition after the 180-day period provided in R.C. 2953.21(A)(2), and (2) the inmate did not allege or show that the provisions of R.C. 2953.23(A)(1)(a) or (b), allowing late postconviction petitions to be considered, applied." [via LexisOne]
State v. Alfred Cleveland, 2009 Ohio 397; 2009 Ohio App. LEXIS 355 (Ohio 9th App 2/2/2009) "The trial court did not err when it denied the inmate's Crim. R. 33 motions for leave to file a delayed motion for new trial and/or motion for a new trial. The recanting witness's affidavit and so-called deposition were not credible because the witness was not willing to corroborate his statements through live testimony." [via LexisOne]

Week of February 2, 2009 – In Favor of the Defendant or the Condemned


Thomas William Rigterink v. State, 2009 Fla. LEXIS 151 (FL 1/30/2009) (dissent) "Defendant's convictions and sentences for first-degree murder were reversed, as the right-to-counsel warning he received was constitutionally deficient pursuant to the federal Fifth Amendment, and Fla. Const. art. I, § 9, and the admission and publication of his videotaped confession was harmful error, as the tape affected the jury's decision." [via Lexisone]
Ex parte Billy Frederick Allen, Nos.P-75,580/75,581 (Tex Crim App 2/4/2009) (unpublished) (dissent) Writ granted using "actual innocence as a procedural gateway through which to [address] his otherwise barred constitutional claim of ineffective assistance of trial counsel."

Week of February 2, 2009 – In Favor of the State or Government


Thomas Warren Whisenhat v. Allen, 2009 U.S. App. LEXIS 2053 (11th Cir 2/3/2009) "Whisenhant raises four claims in this appeal: (1) his counsel was ineffective at his 1981 guilt phase trial for failing to present his only defense of insanity; (2) the state failed to disclose exculpatory evidence during the 1981 trial and a 1987 penalty phase trial; (3) the prosecutor's closing argument at the 1981 trial was fundamentally unfair; and (4) the trial judge's ex parte dealings with prosecutors prior to the 1987 penalty phase trial violated Whisenhant's due process right to an impartial judge. We conclude that the district court properly denied habeas relief and affirm."
Danny Joe Bradley v. King, 2009 U.S. App. LEXIS 2056 (11th Cir 2/3/2009) "Bradley filed this § 1983 suit seeking access to biological and physical evidence that he hoped he could then use in a habeas proceeding to prove his innocence in the capital murder of his step-daughter. He received access to the evidence the Appellees had in their possession but the DNA testing of that evidence did not exculpate him. He has also received an accounting of the requested items which the Appellees could not find, that of the rape kit and the victim's pants. There is no evidence of bad faith on the part of the state or that further discovery will unearth these missing items. Accordingly, the district court did not abuse its discretion in denying additional discovery and the district court's judgment of dismissal is affirmed. Bradley's emergency motion for a stay of execution pending appeal is denied as moot."
Bruce Douglas Pace v. McNeil, 2009 U.S. App. LEXIS 2054 (11th Cir 2/3/2009) Relief denied on whether counsel's "investigation into the extent of this addiction was adequate; whether he fully informed Pace's mental health experts about the addiction; and whether reasonably competent defense counsel would have treated the addiction as a mitigating circumstance and presented it to the jury at the penalty phase of the trial."
Donald Edward Beaty v. Shriro, 2009 U.S. App. LEXIS 1828 (9th Cir 2/2/2009) "Habeas petitioner who raised a number of untimely and unexhausted claims, failed to meet the standards to bring a second and subsequent petition under 28 U.S.C.S. § 2244(b)." Relief denied includes on Atkins claims. [via LexisOne]
People v. Michael Anthony Jackson, 2009 Cal. LEXIS 1007 (Cal 2/5/2009) "In an automatic appeal brought by an individual convicted and sentenced to death for murdering a police officer, the conviction and sentence are affirmed over claims of error regarding: 1) a denial of a continuance to prepare an Atkins defense; 2) Marsden error; 3) denial of defendant's request to represent himself; 4) prosecutorial misconduct; 5) evidence of other crimes; 6) lack of instruction to view defendant's admissions with caution; 7) considering the absence of mitigating factors as an aggravating factor; denial of an automatic application to modify the verdict; 9) denial of his request to continue the sentencing hearing; 10) challenges to the death penalty statutes; and 11) cumulative error." [via FindLaw]

Jeremiah Martel Rodgers v. State, 2009 Fla. LEXIS 154 (FL 2/5/2009) Death sentence affirmed on "issues: (1) whether error was committed when Rodgers was not given a competency hearing after he waived his right to a jury and waived the presentation of significant mitigation; and (2) whether the death sentence is disproportionate."

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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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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 "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.