Capital Defense Weekly

In perhaps the most positive, and potentially important, Fifth Circuit decision since I started posting online a decade ago, in Billy Ray Nelson v. Quarterman the Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analysis of the  death penalty in Texas.

Another opinion of potentially major long-term impact was handed down by Utah Supreme Court held Friday in State v. Menzies that a state statutory right to effective assistance of counsel exists in post-conviction. Counsel performance here is so bad that it was a constructive denial of counsel and hence client need not show prejudice, which is presumed. Note that the language here is strong and undeniable in the support for the ABA standards and good on the issue of fee caps & work-product privilege.

Additionally, in  State v. Allen Gregory the Washington Supreme Court grants penalty phase relief on two grounds. First, the State relied on a prior conviction for rape as an aggravator, however the conviction for rape was subsequently voided.  Second,  the trial court's the prosecutor to exclude "any reference to the conditions that exist in prison," however the prosecutor "then blatantly violated the resulting order" in a manner that was "flagrant and ill-intentioned." As a result of both grounds, both separately and in conjunction, the sentence of death must be vacated.

Then of course there is the latest developments with lethal injection which is, perhaps, best summed up by a quote from Judge Fogel's “memorandum of intended decision” in Morales v. Tilton, footnote 8, attributed to a California prison officer after a botched execution there: “Sh*t does happen, so.” Morales findings conclude that California's “implementation of lethal injection is broken, but it can be fixed.”  Likewise following the well publicized botched execution of Angel Diaz Florida Governor Jeb Bush, after reviewing the initial autopsy findings has suspended executions, for now, in Florida.  In both states otherwise highly professional and competent corrections departments seem  to have been giving unduly short-shrift to the process by which they take the lives of those in their care.  As an aside, year to date, it is guestimated that 10 to 12 executions were  put off due to lethal injection concerns in roughly a half dozen-jurisdictions.

The Supreme Court also handed down Carey v . Musladin. Justice Thomas's opinion is narrow and the concurrence make plain, including that by Justice Kennedy, that the Carey will be narrowly applied.  Indeed, the opinion is a prelude to what is likely to be a heated question over the ultimate issue of the AEDPA & Article III that appears to be looming in the lower federal courts.

The Supreme Court last week decided Lopez v. Gonzalez. For those of us who dwell in the trial court realm, especially the noncapital realm, the opinion is huge. Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon, has an incredibly important post on the holding in Lopez over at the Ninth Circuit blog. His conclusions is simple & needs repeating here -- "[w]e need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions."

In the news, the Texas Court of Criminal Appeals has established new rules for appointed habeas attorneys in death row cases; those rules are linked here.  Murder Victims' Families for Human Rights as part of their No Silence, No Shame has released a new report entitled “Creating New Victims: How executions hurt the families left behind.” The November 2006 edition of the Texas Bar Journal published by the State Bar of Texas, the State Bar has adopted a Texas version of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.”

Recent scholarship will be addressed in the next edition, but it can also be found at the blog.

This week's edition in theory is looking at just  the period from November 27 to December 11, 2006, however, decisions & development more recent than those dominate this edition. One reason is that although the email goes out over the weekend - normally Sunday - cases from that week's Monday to Friday are not always covered is that Lexis & Westlaw generally do not post all their decisions until the following week.  As a compromise an advance sheet of opinions that can be found are usually included & discussed.  As always, thanks for reading. - k

Due to the holidays & potentially being out of the country I do not anticipate sending out a synopsis again until after Christmas.  That edition will include a year end round-up.  DPIC has their year end round-up here, although their projected total of number of new death sentences seems slightly high due to the low numbers of new death sentences in Ohio (4) and Texas (14), who have two of the nation's largest death rows.

Full edition is available at http://www.capitaldefenseweekly.com/archives/061211.htm.

 
SCOTUS

In Favor of Life or Liberty

Week of 11/27 to 12/1/2006

State v. Allen Gregory,  2006 Wash. LEXIS 890 (Wash 11/30/2006) Penalty phase relief granted on two grounds. First, the State relied on a prior conviction for rape as an aggravator, however the conviction for rape was subsequently voided.  Second,  the trial court's the prosecutor to exclude "any reference to the conditions that exist in prison," however the prosecutor "then blatantly violated the resulting order" in a manner that was "flagrant and ill-intentioned." As a result of both grounds, both separately and in conjunction, the sentence of death must be vacated.

Week of 12/4 to 12/8/2006

State v. Darryl Gumm, 2006 Ohio App. LEXIS 6409 (Ohio 1^st App 12/8/2006)  Atkins relief granted.

Advance sheet for the week of 12/11 to 12/15/2006

Billy Ray Nelson v. Quarterman, No. 02-11096 (5th Cir  12/11/2006) The Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme — Billy Ray Nelson v. Quarterman. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analysis of the  death penalty in Texas.

State v. Menzies, No. 20040289 (Utah 12/15/2006) The Utah Supreme Court held Friday in State v. Menzies that a state statutory right to effective assistance of counsel exists in post-conviction. Counsel performance here is so bad that it was a constructive denial of counsel and hence client need not show prejudice, which is presumed. Note that the language here is strong and undeniable in the support for the ABA standards and good on the issue of fee caps & work-product privilege.

Favoring Death

Week of 11/27 to 12/1/2006

Charles Smith v. Quarterman,  2006 U.S. App. LEXIS 29492 (5th Cir 11/30/2006) "The state court’s decision that Smith’s counsel made a reasonable strategic decision to forego the presentation of evidence at the punishment phase is neither contrary to, nor an unreasonable application of, clearly established federal law."

William Earl Lynd v. Terry,  2006 U.S. App. LEXIS 29187 (11th Cir 11/28/2006)  Relief denied on "whether Lynd was deprived of his right to assistance from necessary and competent experts at his competency trial and at both phases of his capital trial," as well as "whether Lynd was denied effective assistance of counsel because: (1) his retained counsel unreasonably advised him not to cooperate with a state mental health evaluation; (2) his counsel failed to conduct an investigation into Lynd's background, including his mental health and substance abuse problems; (3) his counsel failed to investigate adequately the State's case; and (4) his court-appointed counsel had a conflict of interest."

David Raley v. Ylst, 2006 U.S. App. LEXIS 29398 (9th Cir 11/30/2006)  Rehearing en banc denied. Opinion modified but not the prior outcome.

Antonio Melton v. State, 2006 Fla. LEXIS 2804 (FL 11/30/2006) Post-conviction loss on: "(1) his claim that he was denied the effective assistance of counsel during both the guilt phase and penalty phase of his trial; (2) his claim that the State withheld material and exculpatory evidence and presented misleading evidence; (3) his newly discovered evidence claim; (4) his claim that the prosecutor's misconduct during the course of his case rendered Melton's conviction and sentence fundamentally unfair and unreliable; and (5) his claim that there was unconstitutional systematic exclusion of a significant portion of the nonwhite population from the jury pool."

Comm. v. Kevin Marinelli,  2006 Pa. LEXIS 2279  (PA 11/27/2006)  Relief denied on postconviction review of all claims, including: "(1) Should Appellant's death sentence be vacated because he was denied an impartial sentencing jury and, as a result, consideration of mitigating evidence was restricted; (2) Is Appellant entitled to a new sentencing because the penalty phase instructions shifted the burden of persuasion from the Commonwealth to Appellant and violated the presumption of life afforded defendants in capital sentencing procedures; (3) Is Appellant entitled to a new trial because [a juror] was a former client of [an] Assistant District Attorney [in the case]; (4) Must Appellant's death sentence be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be statutorily ineligible for parole; (5) Was counsel ineffective in misapprising Appellant of his right to testify to personal background mitigating circumstances without being subject to cross-examination of the circumstances of the offense, and was Appellant’s waiver of his right to testify in mitigation invalid; (6) Did the trial court fail to properly instruct on the nature and use of aggravating and mitigating factors; (7) Is Appellant entitled to the production of the remaining voir dire transcripts and restoration of his right to direct appeal, nunc pro tunc, because these notes of testimony of the voir dire proceedings were and remain unavailable to him; and (8) Must Appellant’s death sentence be vacated because this Court failed to provide meaningful proportionality review;"

Week of 12/4 to 12/8/2006

Kenneth Parr v. Quarterman, 2006 U.S. App. LEXIS 29998 (5^th Cir 12/7/2006) Denial of habeas relief and a request for a certificate of appealability in a death penalty case are affirmed and denied, respectively, over procedurally barred or abandoned claims, and claims of error regarding: 1) whether the conviction was obtained in violation of the Fifth Amendment under the doctrine of collateral estoppel; 2) Brady claims; 3) ineffective assistance of counsel; 4) the jury's consideration of evidence regarding parole during deliberations; 5) jury instructions; 6) denial of defendant's request to introduce evidence on the length of time he would be required to serve before being eligible for parole; 7) alleged eliciting of testimony about defendant's post-arrest silence by the state; 8) admission of evidence; and 9) an Eighth Amendment claim.

Thomas Springs v. State, 2006 Ark. LEXIS 616 (Ark 12/7/2006) Relief denied on claims including: "(1) erred, as a matter of law, by failing to intervene and appoint a head-injury expert to examine him; (2) erred in submitting aggravating circumstances to the jury that were not warranted by the evidence; (3) erred in refusing to give Appellant's proffered instruction on mitigating circumstances and, instead, submitting Arkansas Model Criminal Instruction Form 2; (4) erred in admitting State's Exhibits 23 and 24 because that evidence was cumulative and its probative value was substantially outweighed by the danger of unfair  prejudice; (5) erred when it allowed Appellant to be charged under Ark. Code Ann. § 5-10-101 (Supp. 2003) in violation of the Eighth Amendment to the United States Constitution and the Arkansas Constitution; (6) abused its discretion in admitting victim-impact evidence during Appellant's sentencing because, under Arkansas law, such evidence is irrelevant in capital-murder cases."

In  re: Amendments to Florida Rules of Criminal Procedure 3.851 & 3.590, 2006 Fla. LEXIS 2806 (FL 12/7/2006)

Advance Sheet for the week of 12/11 to 12/15/2006

Calvin Shuler v. Jon Ozmint, 2006 U.S. App. LEXIS 30377 (4^th Cir 12/11/2006) (unpublished) Relief denied on claims relating to ineffective assistance of counsel for failing to adequately investigate, subornation of perjury by the State's counsel & failing to turn over key impeachment evidence of the State's "star" witness.

In re Angel Diaz, 2006 U.S. App. LEXIS 30274 (11^th Cir 12/11/2006) Successor petition denied on "three claims as grounds for his application to file a successive habeas petition: (1) newly discovered evidence of innocence establishes that but for constitutional error no reasonable fact finder would have found Diaz eligible for death; (2) Diaz's conviction and sentence are in violation of Brady v. Maryland; and (3) Diaz's right of confrontation was violated at his trial."

Angel Diaz v. McDonough, 2006 U.S. App. LEXIS 30533 (11^th Cir 12/13/2006)  Challenge to lethal injection denied.

Paul Hildwin v. State, 2006 Fla. LEXIS 2876 (FL 12/14/2006)  Relief denied on the: "(1) denial of a new trial and new penalty phase based on newly discovered DNA evidence that excludes him as the source of semen on underpants and saliva on a wash cloth found at the top of a laundry bag in the victim's car; (2) exclusion of the results of "mock jury" presentations conducted using the new evidence; (3) denial of a new trial on grounds that the evidence suggesting he raped the victim constituted a fatal variance from or constructive amendment of the indictment; and (4) cumulative error."

David Jones v. State, 2006 Fla. LEXIS 2881 (FL 12/14/2006) Relief denied on whether: "(1) whether the trial court erred in denying Jones' claim of ineffective assistance of trial counsel during jury selection and the guilt phase; and (2) whether the trial court erred in denying Jones' claim of ineffective assistance of trial counsel during the penalty phase. "  The issues include the subissues of whether the "claims are: (1) appellate counsel was ineffective for failing to raise on direct appeal that the State improperly presented evidence and argument on sexual battery; (2) appellate counsel was ineffective for failing to raise on direct appeal that a witness improperly commented on Jones' credibility; and (3) appellate counsel was ineffective for failing to raise on direct appeal that the State improperly presented evidence and argument regarding a knife and unsubstantiated stab wounds." 

Quinez Hodges v. Mississippi, 2006 Miss. LEXIS 692 (Miss 12/14/2006) Relief denied on post-conviction relief.  Trial counsel had less than a year of experience and has since been involuntarily committed to a state psychiatric facility. Issues denied include: (1) prosecutorial misconduct; (2) admission of evidence of other offenses; (3) iac; (4) jury instructions on parole eligibility; (5) improper comments by prosecution during sentencing closing argument; (6) indictment failed to properly charge offense; (7) indictment failed to charge a death penalty eligible offense; (8) jury allowed to consider duplicative aggravating circumstance; (9) removal of juror; (10) introduction of evidence of other crimes; (11) admission of photograph of victim; (12) lesser offense instructions; and (13) failure to include jury instructions in record.

State v. Alexander Polke, 2006 N.C. LEXIS 1297 (N.C. 12/15/2006)  Relief denied, on nonpreservation claims, relating to: "(1) whether the trial court abused its discretion by denying defendant's pretrial motion to question prospective jurors about the relative cost of executions versus life imprisonment, (2) whether the trial court committed plain error by submitting the N.C.G.S. § 15A-2000(f)(1) mitigating factor to the jury, (3) whether the trial court committed plain error by failing to submit the N.C.G.S. § 15A-2000(f)(2) and (f)(6) mitigating factors to the jury, (4) whether the trial court committed structural error by failing to submit the N.C.G.S. § 15A-2000(e)(5) aggravating factor to the jury, and (5) whether the trial court committed plain error by failing to intervene ex mero motu during the State's closing argument."

State v. Marvin Johnson, 2006 Ohio LEXIS 3410 (Ohio 12/13/2006) Relief denied on twenty-three propositions of law on direct appeal.

Richard Austin v. State, 2006 Tenn. Crim. App. LEXIS 970 (Tenn. Crim. App. 12/13/2006) The coram nobis court below did not abuse its discretion in summarily denying the petition without an evidentiary hearing because the recanted testimony here failed to meet the prerequisite threshold of trustworthiness.

Selected Excerpts  from, & Commentary on, this Edition's Cases

State v. Allen Gregory,  2006 Wash. LEXIS 890 (Wash 11/30/2006) Penalty phase relief granted on two grounds. First, the State relied on a prior conviction for rape as an aggravator, however the conviction for rape was subsequently voided.  Second,  the trial court's the prosecutor to exclude "any reference to the conditions that exist in prison," however the prosecutor "then blatantly violated the resulting order" in a manner that was "flagrant and ill-intentioned." As a result of both grounds, both separately and in conjunction, the sentence of death must be vacated.  From the discussion of the prosecutor's penalty phase closing:

Gregory contends that during closing argument in the penalty phase the prosecutors committed misconduct in a number of ways. The same standards of review that apply to the guilt phase apply to the penalty phase in a capital case. See State v. Davis, 141 Wn.2d at 870-72. The defendant bears the burden of showing that the prosecutor's argument was both improper and prejudicial. Failure to object to a prosecutor's improper remark constitutes a waiver, unless the remark was "'so flagrant and ill intentioned that it evinces an enduring and resulting prejudice'" that could not have been cured by an instruction to the jury. Id. at 872 (quoting Gentry, 125 Wn.2d at 640). We also conduct a more searching review of penalty phase claims of error. Lord, 117 Wn.2d at 888. Procedural rules  [*151]  regarding arguments raised for the first time on appeal are construed more liberally in the sentencing phase of a death penalty case. Id. at 849.

Shifting Burden: Gregory argues that the prosecutor improperly shifted the burden of proof at the penalty phase and improperly commented on Gregory's failure to call certain witnesses. The court instructed the jury at the beginning of the penalty phase that in order to determine what sentence should be imposed, it must determine whether there are sufficient mitigating circumstances to merit leniency. A mitigating circumstance could be "any relevant fact about the defendant or the offense, which although not justifying or excusing the offense, suggests a reason for not imposing the death penalty." MRP at 7214. Gregory contends that the burden was shifted when the prosecutor emphasized the lack of mitigating evidence presented by the mitigation specialist:

[Y]ou can be certain, you can be certain, they put on everything they had and the very best that they had because there is no incentive to do anything else. So what you heard from the witness stand presented by the defense is the best that can be said about  [*152]  Allen Gregory. It's the best they can do as far as mitigating his conduct.

They hired a mitigation specialist who testified yesterday and said he spent 200 hours working on this case. That's the equivalent of five 40-hour weeks without anything else interfering. They presented you with one police report [regarding an incident of child abuse Gregory suffered at the hands of his father].

You know that they hired a mitigation expert to try to dig up anything they could [that was] positive to say about Allen Gregory, anything they could.

. . . .

And you can bet that they put on the very best and all the evidence they could scrape together that they thought could possibly mitigate his responsibility.

The same presumption applies here: presumption of innocence at trial; presumption of a life sentence in this phase. The same party bears the burden of proof, the state. The same burden of proof applies, and that is proof beyond a reasonable doubt. It's not higher, and it's not lower.

Religion plays a[n] important part [in] many of our lives. Faith plays an important part in many of our lives. The question is whether or not religious  [*156]  law should be held to take priority over the law the court just gave you. Each and every one of you told us, in your questionnaire and in your jury selection, that you did not have a religious belief that would interfere with your ability to apply the law, you didn't have a religious belief that said, "The death penalty is an inappropriate sentence in any and all occasion."

Whether or not the defendant faces another court with another judge at a different time and with a different standard, that's another question. But mercy here has to be based on the evidence that's presented.

The instruction that the court gave you says the appropriateness of the exercise of mercy may be considered. A mitigating circumstance is a fact which in fairness and mercy may be considered.

You should keep in mind that the defense only wants one of you to vote for life. It requires a unanimous verdict to impose the death penalty. Anything less is life without parole. It takes 12 to find a defendant not guilty, but it only takes 1 for a life sentence. The goal  [*158]  for the defense is not 12. The goal is just 1.

when you go back into this room here, I want you to stop, stop listening to the words in your head from me and the prosecutor or even your fellow jurors. Take a few moments to go off by yourself and look deep inside yourself, look at those things that you hold dear.

[C]onsider life without parole and whether or not it's as bleak as has been presented to you. Prison is just another form of society, albeit with guards and fences. But inside of the prison walls, the defendant will still be allowed to watch television, listen to the radio, listen to music, read the newspaper, read books and magazines. He will be allowed to go outside under the sun and sky, to exercise in an equipment room fully provided for him. When he is sick, he will go to the infirmary. When he is hungry, he will go to the commissary. He is allowed to have visits from his family and from his friends. He is allowed to have social interaction with the other people who are within the  [*161]  prison walls. All of those things are things [G.H.] doesn't have anymore.

There is one other thing that a person who is incarcerated for life without parole can do, and that is escape. What incentive would the defendant have to conform his behavior to the rules of society inside of prison when he couldn't conform them and wouldn't conform them to the rules outside? If he breaks a law while he is in prison, tries to escape, gets in a fight, what are they going to do? Lock him up in prison? He is already there for life without parole.

Mr. Neeb wanted to suggest to you that life in prison is some sort of country club atmosphere. Well, he later exhorted you only to base your decision on the evidence that you have before you. You didn't hear anything about that it was a country club. Common sense will tell you a number of things about prison life.

Life in prison without  [*162]  the possibility of parole is just that. It's life. Allen Gregory will die in prison. He will end his days behind concrete walls and iron bars and concertina wire. His life will be controlled from the time he is told to get up in the morning until he lays his head down on that prison-issued pillow at night. His life will be contained in a 9-by-7-foot cell lit by a single light bulb. And he will go to sleep at night listening to the lullabies of other men who are just waiting out the minutes and the hours and the days and the weeks and the years until old age and infirmity and death come to take them away.

Allen Gregory will be punished every time he wakes up in his cell and sees only bars and a single commode; every time he walks to the chow hall with the other men who have forfeited their right to be among us for the rest of their lives; every time his head hits that prison pillow and he has to think about what he has done, every minute of every hour of every day of every week of every month of every year for the rest of his life.

Billy Ray Nelson v. Quarterman, No. 02-11096 (5th Cir  12/11/2006) The Fifth Circuit en banc holds 9-7 on Penry & the nature of the Texas special question scheme — Billy Ray Nelson v. Quarterman. The opinion - which overturns much of that Court's post-Penry analysis of the Texas Special Questions - holds that the Special Questions in use at the time of Nelson's trial precluded meaningful consideration of his (and presumably the overwhelming majority of those who were tried under the then existing Texas scheme) proffered mitigation. The lead opinion of Judge Carl Stewart is among the best dissections of Fifth Circuit & SCOTUS capital sentencing law I have seen. Judge Dennis’s pointed concurrence is a great read for his openness & judicial modesty in admitting he has made mistakes in his analsysis of the  death penalty in Texas.  The good folks at the Habeas Assistance Training Project / CapDefNet.org note:

On December 11, 2006, the Fifth Circuit issued an en banc decision granting habeas relief to Billy Nelson on a Penry claim. Nelson v. Quarterman. The opinion was authored by Judge Stewart. A three-judge panel had previously affirmed the denial of habeas relief. The Supreme Court granted Nelson’s petition for writ of certiorari and remanded for reconsideration in light of Tennard v. Dretke, 542 U.S. 274 (2004). On remand, a panel again affirmed the denial of relief. Rehearing en banc was ordered sua sponte and a majority of the en banc court held that “there is a reasonable likelihood that the Texas capital-sentencing scheme precluded the jury from giving full effect to Nelson’s mitigating evidence as required by the Supreme Court.”

The mitigating evidence that Nelson had presented involved: (1) rejection by his mother, who completely abandoned him by age 14; (2) abuse of drugs and alcohol; (3) a troubled relationship with his brother and with women; (4) having fathered a child out of wedlock and being denied a relationship with his child; and (5) testimony that he suffered from a borderline personality disorder. Under the sentencing scheme in effect at the time of Nelson’s trial, the sentence was determined by the jury’s answer to two questions, one about whether the killing was deliberate, and the other about whether Nelson would pose a future danger. When Nelson argued in state court that the jury was not able to give effect to his mitigating evidence, the state court disagreed, noting that the jury was instruction to consider all aspects of his background and character when answering the special issues. Because the case is governed by AEDPA, the Fifth Circuit had to decide whether this ruling was contrary to, or involved an unreasonable application of, clearly established federal law as of the time the state court ruled back in 1994. The majority found that the clearly established law at that time was that a jury had to be able to give “full effect” to all of the defendant’s mitigating evidence. If there was a reasonable likelihood that the instructions were interpreted to preclude full consideration of the evidence, a new sentencing hearing was required. Looking to the evidence Nelson presented, the majority concluded that while the jury may have been able to give partial effect to some of the mitigation through the two special issues, that was insufficient to allow the jury “to express its reasoned moral response” and the Texas court’s contrary conclusion was an unreasonable application of Supreme Court precedent. The State’s belated argument that a Penry violation is subject to harmless error review was rejected by the majority.

Judge Dennis wrote a concurrence in which, among other things, he explained that he had erred when on the three-judge panel in this case he had found that the Brecht harmless error test was applicable to the Penry claim.
Dissents from grant of relief in Nelson v. Quarterman

Chief Judge Jones, joined by Judges Jolly, Smith, Barksdale, Garza and Clements, dissented. Jones pointed out that the same type of evidence presented by Nelson had been presented in many other cases where the Fifth Circuit rejected Penry claims. Therefore, according to Jones, the majority decision suggests a “sea change” from the Fifth Circuit’s understanding of Supreme Court case law. Jones further contended that if “‘full effect’ has become the test for mitigating evidence, rather than ‘some effect’ or ‘within the effective reach of the jury,’ then the majority’s decision is irreconcilable with the Jurek-Franklin-Johnson-Graham line of cases.” In finding that Nelson’s jury was able to give some effect to his evidence by answering the two special issues, Jones argued that Nelson’s mental condition was treatable, unlike Penry’s, so it could provide a basis for the jury to find that Nelson would not pose a danger in the future. Noting that the decision in this case is contrary to prior Fifth Circuit case law construing the relevant Supreme Court precedent, Jones questioned how the state court could be deemed “unreasonable” in its application of the same Supreme Court holdings. Jones concluded with the hope that the Supreme Court will definitively answer whether or not the majority is correct when it issues decisions in the pending Texas cases that raise Penry issues.

Judge Smith issued a separate dissent, although stating that he “enthusiastically join[ed] in the superb dissenting opinions” by the Chief Judge and Judges Clement and Owen. Smith wrote “to highlight the embarrassing procedural tangle caused by the various actions of the Supreme Court and [the Fifth Circuit] in Penry-related cases.” According to Smith, “[a]ny well-intentioned plan” by the Fifth Circuit “to step back and comprehensively review [its] Penry jurisprudence has crashed and burned.” Among other things, Smith noted the disparate treatment by the circuit of cases with Penry issues and pointed out the “peculiar” development of the Supreme Court granting certiorari review in the Brewer case even though a petition for rehearing en banc is still pending in the Fifth Circuit. He concluded by expressing regret that the en banc court issued this decision now instead of waiting for guidance from the Supreme Court.

Judge Clement dissented, joined by the Chief Judge and Judges Jolly, Smith, Barksdale and Garza. She focused on the fact that this case falls under AEDPA and contended: “Since the Supreme Court has not spoken to the precise type of mitigating evidence at issue here – and certainly had not done so by 1994, when Nelson’s conviction became final – it will be difficult to say that, under AEDPA, the state habeas court acted contrary to or unreasonably applied federal law as determined by the Supreme Court.”

Finally, Judge Owen, joined by Judges Jolly and Smith, dissented. She also emphasized “the standard of review that must be applied” and argued that “[i]t was not objectively unreasonable to conclude that Nelson’s mitigating evidence was distinguishable from the mental retardation and low intelligence at issue” in Penry, Tennard and Smith, and was instead more like the “transient qualities of youth” at issue in Johnson v. Texas and Graham v. Collins.

Carey v . Musladin, No. 05–785 (12/11/06) Grant of habeas relief vacated where the Ninth Circuit erred in concluding that a state appeals court's decision, that buttons displaying the victim's image worn by the victim's family during respondent's trial did not deny respondent his right to a fair trial, was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. The good folks at the Habeas Assistance Training Project / CapDefNet.org note:

In re Angel Diaz, 2006 U.S. App. LEXIS 30274 (11^th Cir 12/11/2006) Eleventh Circuit denies request for permission to file a second habeas petition.The good folks at the Habeas Assistance Training Project / CapDefNet.org note:

THE SMALL PRINT
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ISSN: 1523-6684

* Execution date information per Rick Halperin and other sources
  As always, please forgive the typos & unorthodox citation methods.  Thanks for the tip-offs, thanks for reading & most importantly thanks for all the hard work. - k