Numerous defense favorable cases are noted in this edition covering cases since late August. Leading off, the Sixth Circuit in Gregory Thompson v. Bell remands in this Rule 60(b) appeal. The Bell panel remands on two separate and distinct sets of claims. The first is a claim concerning competency to be executed under Ford v. Wainwright. The second set of claims concern ineffective assistance of counsel and procedural default. On the second issue, the panel holds that the Tennessee Supreme Court's adoption of new rules essentially waiving the need to file claims with that court in order to exhaust the claim for purposes of habeas review means that the prior procedural default finding by the district court was incorrect as to certain claims. On this odd set of facts, the panel holds, Rule 60(b) permitted re-examination on claims held previously defaulted for failure to raise those claims to the Tennessee Supreme Court.



The Ninth Circuit in Viva Leroy Nash v. Ryan addresses the issue of when does a Petitioner become too incompetent to effectively communicate with their attorneys. Relying upon circuit precedent and the statutory right to habeas counsel the panel holds that "[m]eaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner." The Court orders a remand so that "district court [can] conduct appropriate proceedings to determine whether Nash is competent to communicate rationally"

In other defense favorable cases, the Fifth Circuit granted a COA in Robert Simon Jr. v. Epps on ineffective assistance at sentencing. In Richard Fairchild v. Workman the Tenth Circuit remands as "the district court should determine in the first instance whether it is appropriate to stay and abate the action on the petition in order to give Mr. Fairchild an opportunity to exhaust" an ineffective assistance of counsel claim. In Edward Harold Schad v. Ryan the Ninth Circuit remands "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." Finally, the Third Circuit in Ernest Simmons v. Beard granted a new trial on the cumulative impact of multiple pieces of suppressed Brady material.



Of the cases listed below as favoring the government two are of unusually notable. In the first case, Linda Anita Carty v. Thaler, a British subject, loses on a fairly unusual application of the procedural default / exhaustion rules where if those claims were addressed on the merits she'd likely win. Specifically, there appears to have been some issue as to whether the State did or did not agree to permit her to amend claims, beyond the limits of that which is normally permitted under Texas law. This is one to potentially watch for further action en banc or certiorari.

The other matter is State v. Dane Locklear, Jr. At trial the State offered the Chief Medical Examiner as an expert in the field of forensic pathology to testify about the findings of the people who did the autopsy. As North Carolina Criminal Law notes "[o]n appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt." The Defense appellate brief is available through the NCIDS.

In the news, Michael Toney in Texas was released from the Tarrant County Jail, nine months after his conviction and death sentence were overturned, while the Texas Attorney General contemplates whether or not to retry him. In Nevada Public Defender caseloads are being reexamined, following a state supreme court order. Anthony Caravello at 15 faced the death penalty,was convicted of rape and murder 26 years later he has been freed in light of DNA.


Online, a complete preview of the certiorari grants for the Supreme Court's upcoming term can be found over at JoNell Thomas's Harmful Error. A new blog, A Criminal Enterprise, has some great posts by Bidish Sarma of the Justice Center's Capital Appeals Project, and Rob Smith of Harvard's Charles Hamilton Houston Institute for Race and Justice. Jeff Gamso has started writing Gamso—For the Defense.


As a reminder,we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to a nonprofit involved in some aspect of the capital punishment issue, such as Pennsylvanians for Alternatives to the Death Penalty (where I'm currently the co-chair) or the Fair Trial Initiative. 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. As always, thanks for reading - k




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 September 7, 2009 – In Favor of the Accused or Condemned

Gregory Thompson v. Bell, 2009 U.S. App. LEXIS 20246 (6th Cir. 9/11/2009) The district court erred when it denied Thompson's Rule 60(b) motion and his habeas petition based upon competency to be executed, as well as certain ineffective assistance counsel claims. "On remand, the district court shall first rule on the merits of Thompson's remaining ineffective assistance claims, and shall only address the incompetency question if it rejects the ineffective assistance claims on their merits. If the court rejects the ineffective assistance claims, it must then conduct an evidentiary hearing to determine Thompson's competency for execution."
Robert Simon 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 for Simon's trial counsel not to investigate Simon's history of familial abuse? 2. If the jury had heard evidence of Simon's history of familial abuse, is there a reasonable probability that it would not have returned a sentence of death? 3. Considering that neither the Supreme Court of Mississippi nor the district court held an evidentiary hearing to determine the actual contours of Simon's trial counsel's investigation, what must we assume for the sake of this appeal? Further, if we find Simon's claims to be meritorious, should we remand his petition to the district court for an evidentiary hearing?"
Ernest Simmons v. Beard, No. 05-9001 (3rd Cir 9/11/2009) New trial ordered in light of numerous Brady violations.

Viva Leroy 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 to competence should not apply to an appeal. We do not read Rohan as so limited. While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner" "Nash’s rapidly deteriorating mental condition leads us to conclude that the precise issue we consider here - whether Nash is competent to pursue the pending appeal of the district court’s denial of his habeas petition. . .." "[W]e grant the pending motion for a limited remand. On remand, we direct the district court to conduct appropriate proceedings to determine whether Nash is competent to communicate rationally"

Edward Harold Schad v. Ryan, No. 07-99005 (9th Cir 9/11/2009) District court erred in denying an evidentiary 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 by the prosecutor on behalf of a government witness, resulted in little prejudice and therefore relief denied.


(Initial List) Week of September 7, 2009 – In Favor of the State or Government

Billy John Galloway v. Thaler, 2009 U.S. App. LEXIS 20098 (5th Cir 9/9/2009) (unpublished) "Galloway alleges he received ineffective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence during the punishment phase of trial. The district court held that Galloway had not shown deficient performance of counsel and prejudice resulting therefrom. Because jurists of reason would not find debatable the district court's ruling, Galloway's application for a COA is DENIED."
Martin Robles v. Thaler, 2009 U.S. App. LEXIS 20070 (5th Cir 9/8/2009) (unpublished) COA denied on claims pertaining to (a) procedural default of state constitutional law claims; (b) that the mitigation instruction placed an unconstitutional burden on the defense; and (c) "the mitigation special issue violated his constitutional rights, because its phrasing could confuse the jury and render them incapable of giving effect to mitigating evidence."

Week of August 31 2009 – In Favor of the Accused or Condemned
Richard Fairchild v. Workman, 2009 U.S. App. LEXIS 19929 (10th Cir 8/31/2009) Remand ordered as "Mr. Fairchild's ineffective assistance of counsel claim is unexhausted and [ ] the district court should [have] determine[d] in the first instance whether it is appropriate to stay and abate the action on the petition in order to give Mr. Fairchild an opportunity to exhaust this claim. Accordingly, we VACATE the district court's judgment and REMAND to the district court to make the stay-and-abeyance determination and to conduct further proceedings consistent with this opinion. We do not reach the merits of Mr. Fairchild's other appellate claims.
Week of August 31, 2009 – In Favor of the State or Government

Benny Lee Hodge v. Haeberlin, 2009 U.S. App. LEXIS 19968 (6th Cir. 9/4/2009) (dissent) "The district court properly denied habeas corpus in this case because petitioner Benny Lee Hodge has not shown that his trial counsel rendered ineffective assistance. A jury convicted Hodge and sentenced him to death for his role in a 1985 double murder. Hodge advances numerous claims of ineffective assistance of counsel, including a claim that counsel prevented Hodge from testifying on his own behalf and that counsel ineffectively cross-examined the prosecution's key witness. Because the record does not show that any alleged mistake by Hodge's counsel meets the standards for deficient performance and prejudice established by Strickland v. Washington, Hodge is not entitled to habeas relief."
Romell Broom v. Strickland, 2009 U.S. App. LEXIS 19622 (6th Cir. 9/1/2009) Relief denied on district court's " dismissal of his 42 U.S.C. § 1983 challenge to Ohio's method of execution."
State ex rel John E. Winfield v. Roper, 2009 Mo. LEXIS 384 (Mo 9/1/2009) "Winfield now seeks a writ of habeas corpus, alleging that, during the penalty phase of his trial, the jury improperly was directed to continue deliberating after it indicated it was deadlocked. This Court appointed a special master, who heard testimony from the trial judge, all the trial jurors, the bailiff from the trial and others and who subsequently filed a report concluding the jury did not advise that it was deadlocked on whether to impose a sentence of death or life in prison and that it was not instructed to continue deliberating." [via Clerk of Court supplied summary]

State v. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009) Relief denied on claims that "the district court erred in failing to grant him a new 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’s perjury at the time of Lotter’s trial. Lotter asserts that the district court also erred in not granting postconviction relief on the ground that his testimony was coerced by the threat of cruel and unusual punishment."
James Delano Winkles v. State, 2009 Fla. LEXIS 1414 (FL 9/3/2009) "Winkles argues that the postconviction court should have determined that trial counsel provided ineffective assistance by (A) advising Winkles to plead guilty and to waive a penalty-phase jury in the hope that if he were sentenced to death, 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."
Tavares J. Wright v. State, 2009 Fla. LEXIS 1416 (FL 9/3/2009) "In this direct appeal, Wright challenges one aspect of the guilt phase and three aspects of the penalty phase, as follows: (1) whether the trial court erred in admitting collateral-crime evidence as inextricably intertwined with the offenses on trial, which Wright contends became a feature of the trial that rendered the probative value of this evidence to be substantially outweighed by its prejudicial effect; (2) whether the trial court erred in denying Wright‘s motions to declare Florida‘s capital-sentencing scheme unconstitutional pursuit to Ring v. Arizona, 536 U.S. 584 (2002); (3) whether the trial court erred in finding that the murders were committed in a cold, calculated, and premeditated manner; and (4) whether the trial court erred in finding that the dominant purpose for committing the murders was witness elimination to avoid arrest. We conclude that Wright has not demonstrated a basis for relief on any of these issues and that sufficient evidence supported each of the death sentences, which we further hold are proportionate punishments for Wright‘s capital convictions."
State v. James Were, n.k.a. Namir Abdul Mateen, 2009 Ohio App. LEXIS 3825 (Ohio 1st App 9/2/2009) Relief denied holding that the court below did not err when "it adopted the state’s findings of fact and conclusions of law;" (b) denied claims "(1) that R.C. 2953.21 et seq. is unconstitutional because it does not provide “an adequate corrective process,” and (2) that he had been denied meaningful postconviction review as a consequence of an incomplete trial record; (c) it "denied petitioner’s postconviction claim contending that the administrative sanctions imposed on him by the Ohio Department of Rehabilitation constituted punishment for the same conduct that had led to his aggravated-murder and kidnapping convictions" (d) Batson; (e) "denied as unsupported petitioner’s postconviction claims alleging (1) grand-jury bias, (2) the denial of his 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 and withholding material evidence, (6) trial counsel’s ineffectiveness in failing to raise these matters, and (7) other inadequacies in trial counsel’s preparation and presentation of his case at the guilt and penalty phases of his trial and at his mental-retardation hearing, including counsel’s failure to request experts, to advance alternative-killer defenses, to effectively cross-examine state’s witnesses, and to effectively challenge state’s experts;" (f) trial court's use of a stun belt; (g) actual innocence; (h) cumulative error; and (i) denial of discovery." [via Clerk's Office summary]
State v. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009) Relief denied on claims that "the district court erred in failing to grant him a new 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’s perjury at the time of Lotter’s trial. Lotter asserts that the district court also erred in not granting postconviction relief on the ground that his testimony was coerced by the threat of cruel and unusual punishment."
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 holds, in relation to whether or not an "adjudication on the merits," that the Wilson panel was correct in applying de novo review and incorrect in Workman in not examining the issues de novo. The opinion is a highly technical analysis of Oklahoma's rules of procedure and the nature of the deference due certain claims. Specifically, "[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."
Howard Dean Goodin v. State, No. 2007-CA-00972-SCT; (Miss 8/27/2009) The Court below failed to follow the mandate, "through no fault of the trial court," from the Court's prior order 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."
Week of August 24, 2009 – In Favor of the State or Government

State v. Dane Locklear, Jr., 2009 N.C. LEXIS 814 (NC 8/28/209) Relief denied on 32 issues. Most notably, "[o]n appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt." [via North Carolina Criminal Law] [Defense appellate brief here]

State v. George Thomas Wilkerson, 2009 N.C. LEXIS 722 (NC 8/28/2009) Relief denied on 21 claims including groups of claims relating to the (a) admission of false testimony regarding cooperating witness' agreement with the state; (b) admission of improper opinion testimony, hearsay, and speculation as to the Appellants culpability; (c.) use of inadmissible character evidence; (d) prosecutorial misconduct in guilt phase closing argument as to facts outside the record and prosecutor's personal feelings; (e) cumulative error; (f) insufficient evidence of felony murder due to failure to prove first-degree burglary; (g) admission of statements and evidence illegally obtained; and (h) preservation issues. [Defense appellate brief here]

Linda Anita Carty v. Thaler, 2009 U.S. App. LEXIS 19436 (5th Cir 8/28/2009) (unpublished) Relief denied on procedural issue of "whether she failed to exhaust the claims that she raised for the first time in her Further Additional Response and [substantively] on whether trial counsel rendered ineffective assistance by failing to notify Corona of his spousal privilege and by failing to produce more mitigation evidence 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 Martin requested." Therefore "the circuit court erred in granting Martin permission to file an out-of-time application for a rehearing with this court and a petition for a writ of certiorari in the Alabama Supreme Court if this court denied his application for a rehearing."

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) Mr. Ferguson "filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 in which he made at least eleven claims. He also moved to stay the federal habeas proceedings based on his alleged incompetency, a motion denied by the district court, which held an evidentiary hearing on the issue and found him competent to proceed with the petition. The court subsequently denied Ferguson's petition in its entirety, but granted a certificate of appealability on all of the issues raised therein. Ferguson has appealed the district court's dismissal of nine of his claims and also challenges that court's denial of his motion to stay the proceedings. The State of Florida filed a cross-appeal regarding the district court's decision to hold an evidentiary hearing on the issue of Ferguson's competency."After thoroughly reviewing the record and the parties' briefs and hearing oral argument, we AFFIRM the district court's denial of Ferguson's petition and motion to stay."
Steven Douglas Hayward v. State, SC07-1234 (FL 8/27/2009) Relief denied on claims that: "asserts 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).
Bruce Earl Ward v. Norris, 2009 U.S. App. LEXIS 18975 (8th Cir 8/24/2009) "District court did not err in concluding that Ward's Rule 60(b) and Rule 59 motions constituted second or successive habeas petitions as the motions, in substance, comprise a claim of ineffective or incompetent representation by federal habeas counsel; as a result the requested relief was barred by AEDPA, and the district court did not err in dismissing the motions; claims on appeal concerning ineffective assistance of counsel amounted to an impermissible broadening of the claims presented to the state courts and the federal district court, and appellate review would be limited to the facts related to the argument made to the state courts; with respect to Ward's claim that the trial court's disparate treatment of defense counsel's requests to approach the bench deprived him of a fair trial, however ill-founded the trial court's reasoning for its actions may have been, its rulings on those requests did not reflect actual or presumed bias rising to the level of a constitutional violation or a structural error. Judge Melloy, concurring in part and dissenting in part."



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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 "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