From the upcoming edition:
SCOTUS stay action
- Cleve Foster v. Texas, No. 10-8317 (1/11/2011) Stay granted on cert sought from this opinion from the Texas Court of Criminal Appeals on asuccessive state postconviction petition & denial of rehearing. The issue appeals to involve IAC and/or the appropriate remedy for deficient state post-conviction counsel. If you don’t have the brief and want it, hit us up offline.
- Leroy White v. Jones, No. 10-8367 (1/13/2011) Stay initially granted & then lifted. The apparent question is not whether judicial overrides, like the one that got Mr. White on death row comport, with the Sixth Amendment, but rather trial counsel’s performance during plea negotiations.
In favor of the executioner
- State ex rel Lykos v. Hon. Fine, 2011 Tex. Crim. App. LEXIS 1 (Tex. Crim. App. 1/12/2011) (dissent) Writ of prohibition granted to prevent a formal pretrial hearing on the constitutionality of the Texas death penalty.
- State v. Stephen Corey Bryant, 2011 S.C. LEXIS 1 (S.C. 1/7/2011) Relief denied on“[w]hether the trial judge erred in refusing to allow Aunt Terry to testify that she had been sexually abused by appellant’s grandfather?” “Appellant’s childhood sexual abuse, as well as that inflicted upon appellant’s aunt, were part of the foundation upon which appellant’s mental health expert and his social history expert based their opinions. Both experts testified, without objection, to these opinions. Accordingly, whether the aunt should have been allowed to testify directly to her abuse is irrelevant to appellant’s mitigation case. The purpose of Aunt Terry’s testimony was to establish intrafamilial sexual abuse.”
- Royal Kenneth Hayes v. Ayers, 2011 U.S. App. LEXIS 458 (9th Cir 1/7/2011) “What does it take to get a change of venue? More than extensive press coverage in a small county. The petitioner here was convicted of a double homicide during a drug deal. The press was extensive, with numerous stories and exposés about the petitioner’s past. The 9th, however, found no actual or presumptive prejudice. The media was mostly before the jury was empaneled, and time had passed. The dissent would find a due process violation because of the inflammatory nature of the articles, the small size of the county, and the familiarity with the case of the jury panel. The dissent notes that four other homicide cases were moved because of publicity. As for the other issues, the 9th all found no hearsay or confrontation issues in the cross examination of the cooperating witness.” [via Jon Sands @ Ninth Circuit Blog]
- John Stephenson v. Wilson, 2011 U.S. App. LEXIS 700 (Ind 1/14/2011) Relief denied as “ (1) Stephenson’s freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson’s claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel’s errors and omissions; (4) Even if Stephenson’s trial counsel’s failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed; (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-30-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the convigtion or sentence; (6) Because Stephenson’s claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson’s convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury’s exposure to various extraneous influences; and (8) The post-conviction court’s conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed.”