Captial Defense Weekly 2007

Three favorable decisions are noted for the period from January 28 to February 5, 2007.

The Sixth Circuit in Von Davis v. Coyle grants relief on limitations placed on the ability to present mitigation evidence. The panel was unanimous as to the grant of relief but divided as to why. Davis's original death sentence was remanded on direct appeal. On remand Davis sought to introduce evidence about his good behavior while on death row in an effort to mitigate the state’s claim that he was beyond rehabilitation. The evidence was excluded. Davis was sentenced to death again. The state courts affirmed. On habeas a Sixth panel's majority holds that the exclusion of evidence was error.

In Curtis Flowers v. State the Mississippi Supreme Court on rehearing, in a 5-4 ruling, once again reverses Flowers's conviction. A plurality of the state supreme court found that Flowers was entitled to relief as " the State engaged in racially discriminatory practices during the jury selection process and that the trial court committed reversible error in upholding the peremptory strikes exercised." The fifth vote for reversal does so on cumulative error grounds, including Batson error.

In Konstantinos Fotopoulos v. Crosby Judge Gregory Presnell of the Middle District of Florida concludes that trial counsel rendered ineffective assistance of counsel at the sentencing phase by failing to bring to the jury's attention that the State had used another theory in the prosecution of the co-defendant in an earlier trial. In that earlier trial the State's theory of the case was that the co-defendant was a cold and premeditated killer and that Fotopoulos in no way influenced her; in that earlier trial the State got death. At Fotopoulos’s trial they portrayed the co-defendant as a “battered woman” who was dominated and controlled by Fotopoulos.“[T]the blatantly inconsistent evidence offered by the State in [the co-defendant’s] case” would have “brought into question the integrity and credibility of the prosecution itself.” Additionally, “the prosecutor’s misconduct regarding this matter amounted to a due process violation which prejudiced Petitioner’s right to a fair sentencing proceeding.”

I would remiss in not noting that the real story of the week is politics and the changing political winds around the death penalty. DPIC has a nice overview while CDW's daily blog has been covering the details as they emerge. Fourteen states currently have a lethal injection or some other type of moratorium on executions. Since the start of the year in at least eleven states repeal or moratorium bills have been filed, with success possible in at least three states. Five primarily Southern states are looking at expanding the death penalty in the same time period.

U of Texas's Tarlton Law Library, Lawrence Solum, and Death Penalty Open Access Research all note new germane scholarship. Perhaps most important among that new scholarship is James S. Liebman's Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963-2006, 107 Columbia Law Review 1-130 (2007). Prof. Liebman argues that "[h]aving accepted the responsibility that comes with refusing either to wipe the death penalty off the nation's agenda by abolishing it or to wipe the penalty off its own agenda by letting States deliberately take life whenever the defendant did so, the Court has found it impossible to carry out the duties entailed by the intermediate approach it has taken."

Looking ahead, in In re Curtis Moore, the Fifth Circuit grants permission to file a successive habeas petition, however the ground on which the permission is granted remain unknown at this time. In Marlin Nelson v. Quarterman, a Fifth Circuit panel holds that Nelson should have filed a pro se habeas corpus petition in order to stop the running of the one year statute of limitations, this despite having timely requested appointment of counsel with months left on the "clock."

Two noncapital decisions of note are also noted for the next edition. In Omar v. Harvey, the D.C. Circuit denies transfer of an American citizen to the Iraqi government holding that habeas is available for citizen in such circumstances. A split Eight Circuit panel denies relief in Morales v. Ault holding the AEDPA precludes relief on claims including withheld evidence, an undisclosed liaison between a prosecutor and the medical examiner, destroyed evidence, several changed opinions by the state’s experts, and ineptitude of counsel.

As has been previously noted, the last few months have seen a seeming “speeding up” of the case law & issues surrounding capital litigation. By the time the Weekly is published the information is dated, often outdated. The daily blog covers much of these more timely developments, as does Stand Down - Texas & Week – at – a – Glance by the Habeas Assistance & Training folks. If, however, something gets missed or you need to let us know about an upcoming event please feel free to shoot us an email. - k

Pending Executions
February
22 Newton Anderson (Texas)
27 Donald Miller (Texas)

March
6 Robert Perez (Texas)
7 Joseph Nichols (Texas)
20 Kenneth Biros (Ohio)
28 Vincent Gutierrez (Texas)
29 Roy Pippin (Texas)

Von Davis v. Coyle, 2007 U.S. App. LEXIS 1878 (6th Cir. 1/29/2007)
Habeas relief granted where the panel disagrees on whether it should grant relief under Skipper for the exclusion of relevant mitigating evidence or Gardner as the “death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” The majority concludes the ”testimony would have established that Davis was classified as an “A” prisoner, indicating that he had no discipline or conduct problems; that he was the clerk on death row for the unit manager and helped conduct tours of death row; and that he had created no problems for other inmates or for security personnel and had no conduct write-ups. . . . the unit manager for death row [ ] complimented Davis’s positive attitude and pleasant personality. . . . his case manager, observed that Davis was cooperative and courteous . . . and that he had been placed in various positions of trust within the unit. Although there could conceivably be some question about the relevance of such evidence in the abstract, the record in this case establishes without doubt that it was highly relevant to the single aggravating factor relied upon by the state [, future dangerousness].”

Curtis Flowers v. State, 2007 Miss. LEXIS 24 (Miss 2/1/2007)
“After carefully reviewing the record before this Court and the applicable law, we find that the State engaged in racially discriminatory practices during the jury selection process and that the trial court committed reversible error in upholding the peremptory strikes exercised against Vickie Curry and Connie Pittman. Based on the State's Batson violation, we are required to reverse the judgment of the Montgomery County Circuit Court and remand this case for a new trial.”

Konstantinos Fotopoulos v. Crosby, 6:03-CV-1578-Orl-31KRS (M.D. FL 1/29/2007)
Fotopoulos was denied effective assistance of counsel at the sentencing phase of his trial due to counsel’s failure to utilize evidence from the co-defendant’s earlier trial where the State relied on contradictory theories in the penalties phases of both trials.

In re Curtis Moore, No. 10168 (5th Cir 2/7/2007)
Permission to file a successive habeas petition granted.

John McNeill v. Polk, 2007 U.S. App. LEXIS 2059 (4^th Cir 1/31/2007)(dissent)
Relief denied on: “(1) whether McNeil was denied effective assistance of counsel when trial counsel admitted without McNeill’s consent that he was guilty of non-felonious breaking and entering, (2) whether McNeill was denied effective assistance of counsel when trial counsel admitted without McNeill’s consent that he was guilty of second degree murder, [ ] (3) whether McNeill’s due process rights were violated when the trial court permitted the jury to find him eligible for a death sentence if it concluded that the aggravating and mitigating circumstances were in equipoise.” “[4] whether McNeill’s due process rights were violated when a juror consulted a dictionary to determine the meaning of the term "mitigate"; [5]whether McNeill was denied effective assistance of counsel when trial counsel failed to investigate and present certain evidence concerning McNeill’s behavior, character, and mental capacity; and [6] whether McNeill’s due process rights were violated when a juror failed to disclose that his half-sister had been murdered by an ex-boyfriend.” Dissent would have ordered a remand to determine the impact of the jury's use of a dictionary in the penalty phase of the proceedings. HAT & Decision of the Day have further analysis.

Daniel Cummings v. Polk, 2007 U.S. App. LEXIS 2237 (4^th Cir 2/1/2007)
Relief denied both issues raised on appeal. On the first issue, because the Supreme Court has not clearly spoken on the use of unadjudicated prior bad acts in the penalty phase relief is precluded. On the second issue, the panel holds that an officer's editorializing of the Petitioner's Miranda rights (noting that he would likely have to repay the state if he exercised his right to have counsel present at questioning) was not erroneous as the Supreme Court has not mandated a precise formulation of the warnings that must be provided. HAT & Decision of the Day have more analysis.

Johnny Ray Conner v. Quarterman, 2007 U.S. App. LEXIS 1891 (5^th Cir 1/29/2007)
Failure of trial counsel to investigate the inability of Conner to run from the crime scene was not objectively unreasonable. The district court's finding below to the contrary, “that the state courts' application of Strickland and ineffective assistance of counsel doctrine was objectively unreasonable because the behavior of counsel in not investigating Conner's medical condition was deficient and prejudicial.“

Billy Slagle v. Bagley, 2007 U.S. App. LEXIS 2265 (6th Cir. 2/2/2007) (en banc)
Denial from a rehearing en banc. Sharp dissent noted on the politicization of the death penalty. Decision of the Day has more analysis.

Kenneth Stewart v. Secretary, 2007 U.S. App. LEXIS 2057 (11^th Cir 1/31/2007)
Relief denied on whether trial counsel was ineffective for failing to provide defense experts readily available information to identify mitigating circumstances, as well as failed to adequately investigate and prepare mitigating evidence during the penalty phase, including but not limited to evidence about Stewart's childhood.

People v. Ricardo Harris, 2007 Ill. LEXIS 425 (Ill 2/1/2007)
Relief denied on 10 issues on direct appeal. Relief denied on numerous state law evidentiary issues, Witherspoon, unanimity instruction, and constitutionality of the Illinois scheme following Ring / Apprendi.

Robert Garza v. Texas, 2007 Tex. Crim. App. LEXIS 98 (Tex. Crim. App 1/31/2007)
Relief denied on direct appeal. Notably, however, one of the two death sentences imposed here was struck. “[T]he trial court did not err to instruct the jury that it could convict the appellant for both the offense of capital murder and the separate offense of engaging in organized criminal activity by committing capital murder as a member of a criminal street gang and that it could punish the appellant for both. However, the trial court did err to sentence the appellant to death for the latter. “

Marlin Nelson v. Quarterman, 2007 U.S. App. LEXIS 3018 (5th Cir 2/9/2007)
Failure of the district court to recruit and retain counsel for a death sentenced petitioner in a timely manner (and a habeas petition thereby filed after the one - year after the statute of limitations) helld to bar habeas relief where Nelson could have filed a pro se barebones petition in a timely manner.

Dennis Skillicorn v. Luebbers, 2007 U.S. App. LEXIS 2516 (8th Cir 2/6/2007)
Habeas relief is denied on the 1) the exclusion of third party guilt information (a confession); 2) exclusion of defense witness; 3) ineffective assistance of counsel; 4) prior bad acts; and 5) sufficiency of the evidence.

People v. Robert Lee Smith, 2007 Cal. LEXIS 749 (Cal 2/5/2007)
Death sentence & murder conviction untouched (despite reversal of a minor charge for which Smith was also convicted) on claims including an interesting limitation on cross-examination of a witness’s juvenile record and a fairly powerful mitigation case.

Ex Parte Charles Nealy, No. WR-50,361-03 (Tex. CCA 2/7/2007) The CCA denies relief in concerning the recantation of a key witness’s prior testimony as the recantation is held not to be credible; stay vacated.

On January 29, 2007, the Sixth Circuit (Daughtrey with Cole; concurring opinion by Gibbons) found that Von Davis’s constitutional rights were violated by the refusal of a three-judge sentencing panel to permit Davis to present new evidence at prior to his resentencing. Davis v. Coyle. Davis’s original death sentence had been reversed by the Ohio Supreme Court on the ground that the three-judge panel had improperly considered non-statutory aggravation in weighing aggravating circumstances against mitigating circumstances. The state supreme court remanded for a new sentencing trial at which the improper factors were not to be considered. The three-judge panel concluded it was sufficient to simply reconsider the record from the prior proceeding, supplemented by argument from the parties. During the state’s argument, the prosecutor discounted evidence that Davis had adjusted to prison in a positive manner prior to the capital offense and argued that he remained dangerous. Davis was precluded from presenting new evidence about his good behavior on death row prior to the reversal of the first death sentence, as well as a psychological “update.” On appeal, the Ohio Supreme Court found no error, concluding that Supreme Court precedent did not require that a prisoner be given the opportunity to present evidence at a resentencing hearing concerning post-trial matters.

A majority of the panel agreed with Davis that the Ohio Supreme Court’s resolution of the claim was contrary to the rulings in Lockett v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Skipper v. South Carolina, 476 U.S. 1 (1986), regarding the right to present mitigating evidence. Further, the majority of the panel found that the Ohio Supreme Court unreasonably applied Skipper by distinguishing it on the ground that the evidence at issue there concerned conduct in jail prior to trial. The majority went on to discuss and reject some of the other claims raised by Davis. It concluded by expressing its view that Davis may be entitled to withdraw his jury waiver at any resentencing proceedings that is conducted in the future.

Judge Gibbons agreed that Davis was entitled to habeas relief but not on the grounds relied upon by the majority. In her view, none of the Supreme Court cases cited by the majority support the premise that “the presentation of evidence of mitigating and aggravating factors must be reopened when a death sentence is reversed for a reason unrelated to the presentation of evidence.” Gibbons nevertheless concluded that Davis was entitled to habeas relief under Gardner v. Florida, 430 U.S. 349 (1977). She explained: “Davis was denied the opportunity to introduce evidence rebutting the prosecutor’s argument that he was too dangerous for a sentence of life in prison. [Citation omitted.] Although Davis’s mere resentencing does not justify the reopening of evidence, when the prosecutor used the resentencing to argue that the judge should discount Davis’s previous exemplary prison record, he triggered Davis’s due process rights under Gardner to present rebuttal evidence.”

Fotopoulos v. Crosby, 6:03-CV-1578-Orl-31KRS (M.D. FL 1/29/2007)
Fotopoulos was denied effective assistance of counsel at the sentencing phase of his trial due to counsel’s failure to utilize evidence from the co-defendant’s earlier trial where the State relied on contradictory theories in the penalties phases of both trials.

On January 29, 2007, Judge Gregory Presnell of the Middle District of Florida granted in part the habeas petition of Konstantinos Fotopoulos. Fotopoulos v. Crosby, 6:03-CV-1578-Orl-31KRS. Judge Presnell concluded that Fotopoulos was denied effective assistance of counsel at the sentencing phase of his trial due to counsel’s failure to utilize evidence from the co-defendant’s earlier trial where the prosecutor’s theory was that the co-defendant had not been coerced in any way by Fotopoulos but instead was a cold and premeditated killer. Using this evidence, the prosecutor was successful in obtaining a death sentence for the co-defendant. At Fotopoulos’s trial, in sharp contrast, the co-defendant was portrayed as a “battered woman” who was dominated and controlled by Fotopoulos. The state court had found that trial counsel made a reasonable strategic decision to forego use of the negative evidence about the co-defendant and that Fotopoulos was not prejudiced. Judge Presnell concluded that these findings were objectively unreasonable. He pointed out, among other things, that by exploiting “the blatantly inconsistent evidence offered by the State in [the co-defendant’s] case,” defense counsel would not only have impeached the co-defendant’s testimony, but also “brought into question the integrity and credibility of the prosecution itself.” Fotopoulos also alleged that his due process rights were violated by the prosecution’s use of inconsistent theories at the two trials. Judge Presnell did not believe the inconsistencies were at the core of the guilt phase case against Fotopoulos such as to render his convictions unreliable. He arrived at a different conclusion, however, as to the sentencing phase, ruling that “the prosecutor’s misconduct regarding this matter amounted to a due process violation which prejudiced Petitioner’s right to a fair sentencing proceeding.”

Other allegations of ineffective assistance by trial counsel were rejected, as were allegations of ineffectiveness by appellate counsel. A proportionality-based claim was denied on the ground that a federal court does not have the authority to infringe upon the state court’s proportionality determination. Considering the guilt-related claims cumulatively, Judge Presnell could not find that the trial was fundamentally unfair. A number of claims in the petition were found to be unexhausted and now procedurally defaulted because Fotopoulos had relied only on state law when he raised the claims on direct appeal. Other claims were found to be defaulted because they weren’t raised in the Florida Supreme Court after being rejected by the lower court. Another claim was found by the state court to be procedurally barred because of the absence of a contemporaneous objection. Fotopoulos’s attempt to establish cause through an allegation of ineffective assistance of counsel was rejected because he had not independently exhausted the ineffectiveness claim. This occurred with respect to other claims as well. An instructional issue was also found by the state court to be procedurally barred due to the absence of an objection or request for supplemental instructions in the trial court. That the state supreme court alternatively denied the claim on the merits did not mean it was not procedurally defaulted in federal habeas proceedings.

On February 1, 2007, the Mississippi Supreme Court denied Mississippi’s rehearing petition, withdrew its original opinions and substituted new opinions in Curtis Flowers’s appeal from his conviction of four counts of murder and his death sentence. Flowers v. State, ___ So.2d ___, 2007 WL 273491 (Miss. Feb. 1, 2007). The Mississippi Supreme Court again in a 5-4 ruling reversed his convictions and death sentence. A plurality of the state supreme court found that Flowers was entitled to relief under Batson v. Kentucky, 476 U.S. 79 (1986). Justice Cobb concurred in the judgment. Although she did not find reversible error on the Batson issue alone, she did conclude that the accumulation of numerous errors in this case warrant reversal and a new trial.

Writing for the plurality on the Batson issue, Justice Graves observed that this case presented the court “with as strong a prima facie case of racial discrimination as [it had] ever seen in the context of a Batson challenge . . ..” Although at least forty percent of the potential jury pool was African-American, only one ultimately sat on Flowers’s jury. The prosecutor exercised all fifteen of his peremptory strikes against African-Americans and African-Americans were seated only after the State had exhausted its peremptory challenges. Justice Graves concluded that “[s]uch a result cannot be considered happenstance.” Justice Graves continued: “While many of the seeming discrepancies in the jury selection process can be explained away by application of procedural bars, defense counsel’s failure to rebut all of the State’s race-neutral reasons, or genuine concerns about a juror’s fitness to serve on the jury, the facts and law before this Court compel us to find a Batson violation in the instant case."

On January 31, 2007, the Eleventh Circuit (Hull, with Dubina and Marcus) affirmed the denial of habeas relief to Kenneth Stewart. Stewart v. Secretary, Dept. of Corrections, 06-11684. The court of appeals had granted Stewart a COA on two claims relating to trial counsel’s performance at the sentencing phase: (1) ineffective assistance in failing to provide the defense mental health expert with all available information to identify possible mitigating circumstances; and (2) ineffective assistance for failing to adequately investigate and prepare mitigating evidence. One aspect of both claims concerned trial counsel’s failure to discover and present evidence about abuse by Stewart’s step-father. Although counsel had presented testimony that Stewart’s maternal relatives were drunk and violent and that his biological mother abandoned him at age three, the jury was led to believe that Stewart’s step-father thereafter provided Stewart with a happy home. In finding that Stewart was not entitled to habeas relief, the panel faulted Stewart for not revealing the information about his step-father. In addition, although numerous family members were interviewed, there was only one vague reference to possible abuse. Non-family sources also failed to alert counsel to the possibility of abuse. Another problem with Stewart’s first claim was that he failed to show that more helpful mental health testimony would have resulted had counsel developed and provided the trial expert with additional information. Another complaint by Stewart concerned counsel’s alleged failure to fully develop evidence about his history of alcohol and substance abuse. In finding that counsel did not perform deficiently, the panel noted, among other things, circuit precedent about the two-edged nature of such evidence. The panel also pointed out that use of this evidence would have conflicted with the defense theory that Stewart’s problems stemmed from multiple traumas that occurred at age thirteen, including learning that his step-father was not his biological father, that his mother had committed suicide, and that his biological father had been killed in a bar fight. Not only was deficient performance not established, the panel concluded that Stewart had failed to demonstrate prejudice from counsel’s failure to present the additional mitigation.

On January 31, 2007, a splintered panel (Shedd, King and Gregory) of the Fourth Circuit affirmed the denial of habeas relief to John McNeill. McNeill v. Polk. McNeill had been sentenced to death for the fatal stabbing of his estranged girlfriend. Judge Shedd, writing for the panel, found that McNeill’s allegations of ineffective assistance of counsel did not entitle him to relief. (McNeill had alleged that counsel was ineffective for: (1) admitting that McNeill was guilty of non-felonious breaking and entering; (2) admitting that McNeill was guilty of second-degree murder; and (3) failing to investigate and present certain evidence regarding McNeill’s behavior, character and mental capacity.)

McNeill also raised two claims of juror misconduct: (1) juror’s use of a dictionary to determine the meaning of the term “mitigate”; and (2) juror’s failure to disclose that his half-sister had been murdered by an ex-boyfriend. The claims had been rejected by the state court based on N.C. Gen. Stat. § 15A-1420(b)(1), which requires that motions for appropriate relief (MAR) be supported by affidavits or other documentary evidence if the claims concern evidence outside the record. The state court found that the juror misconduct claims were supported only by inadmissible evidence in the form of two affidavits containing hearsay and an unsworn, signed statement of a juror.

Judge Shedd found that this rule was adequate and independent and, therefore, the claims were procedurally defaulted. Writing separately, Judge King concurred in the judgment as to the juror misconduct claims, but expressed the belief that the procedural rule at issue was not consistently applied and so the claims at issue were available for merits review. In reaching this conclusion, Judge King noted that the Fourth Circuit has never squarely addressed which party bears the burden of establishing the adequacy (or inadequacy) of a procedural rule. In Judge King’s view, the Tenth and Ninth Circuits have taken the correct approach by requiring the State to bear the ultimate burden of showing adequacy. Here, Judge King found that the State failed to meet its burden because it did not point to any North Carolina authorities explicitly embracing the State’s interpretation of N.C. Gen. Stat. § 15A-1420(b)(1) – that a MAR must be accompanied by an affidavit made by a person who has personal knowledge of the facts asserted. Turning to the merits, Judge King concluded that McNeill was not entitled to relief. As for the allegedly deceitful juror, he found that McNeill was unable to establish that the juror had failed to honestly answer a material question, or that the juror would have been subject to a cause challenge had the murder of his half-sister been revealed. As for the use of the dictionary, Judge King found no prejudice.

Judge Gregory concurred in part and dissented in part. He agreed with Judge’s King’s analysis of the procedural default issue. Unlike the other panel members, he concluded that McNeill was entitled to an evidentiary hearing on whether he was prejudiced by the juror’s improper introduction of a dictionary definition of mitigate, which was: “to make less harsh or hostile.” Judge Gregory expressed concern that this definition could have led the jurors to improperly focus only on the harshness or hostility of the capital offense. Judge King had argued that no hearing should be held because courts are generally barred from inquiring into the deliberative process. Judge Gregory contended that McNeill could establish prejudice at a hearing without testimony about the precise effect of the improper extraneous information. This would be through testimony, for example, confirming that the definition was brought in to deliberations, that jurors consulted this non-legal definition, and that deliberations concluded shortly after this occurred.

On February 1, 2007, the Fourth Circuit (King, with Niemeyer and Williams) affirmed the denial of habeas relief to Daniel Cummings, Jr. Cummings v. Polk, ___ F.3d ___, 2007 WL 273314 (4th Cir. Feb. 1, 2007). The district court had granted a COA on a single claim – an alleged due process violation through the admission of evidence in the sentencing phase relating to an unadjudicated murder to establish the “course of conduct” aggravator. The Fourth Circuit later granted a COA on Cummings’s claim that a police officer’s alteration of the standard Miranda warning and explanation to Cummings that he could be required in the future to reimburse the state for an appointed attorney contravened Cummings´s Fifth and Sixth Amendment rights.

Turning first to the evidentiary issue, the panel noted that Cummings had failed to identify any clearly established Supreme Court precedent precluding the admission of evidence of unadjudicated crimes in capital sentencing proceedings. In fact, some circuits, including the Fourth Circuit, have held that such evidence is admissible. As for Cummings’s complaint that the jury was not instructed that it had to find each element of the unadjudicated murder beyond a reasonable doubt, again there was no clearly established federal law requiring such an instruction. The evidentiary error claim was therefore barred under AEDPA.

Turning to the Miranda claim, the panel recounted the state court’s treatment of it. The state court had found that the rights as read to Cummings “constituted a fully effective equivalent of the Miranda rights.” The state court did not read Miranda as requiring a suspect to be informed that he would be appointed counsel at no cost, the portion of the standard warning crossed out by the interrogating officer. Further, the state court noted that the information supplied to Cummings by the officer was an accurate statement about North Carolina law. Letting Cummings know that he could have to reimburse the State for the costs of his attorney did not, in the state court’s view, “‘chill’ his right to have counsel provided.” In reaching this conclusion, the state court relied on Fuller v. Oregon, 417 U.S. 40 (1974), a case where the Supreme Court upheld the constitutionality of a statute authorizing recoupment of expenses for providing counsel to a person who later obtained the financial ability to pay for the representation. In that decision, the Supreme Court rejected the argument that knowledge by an indigent that he may later have to repay the state for the costs and expenses of appointed counsel could “chill” his Sixth Amendment right to counsel. Cummings argued that the state court decision unreasonably applied federal law because Fuller did not involve Miranda warnings. He maintained that the altered advisement was constitutionally flawed.

In addressing the claim, the panel found important that the Supreme Court has not mandated a precise formulation of the warnings that must be provided. Instead, the question is whether the defendant was adequately informed of his or her rights. In Duckworth v. Eagan, 492 U.S. 195 (1989), the Supreme Court rejected a challenge to a Miranda admonition that informed the defendant that he would be provided counsel “if and when you go to court.” In finding that the warning was adequate, the Supreme Court noted that it accurately described the state court procedure for the appointment of counsel. Here, the panel observed, the altered Miranda warning also was correct under state law. The panel concluded: “Although the impact of [the officer’s] ad hoc statements to Cummings may be debatable, we are obliged in this § 2254 proceeding to apply AEDPA’s deferential standard of review. In light of the principles of Miranda and Duckworth, the State Court Decision’s application of Fuller, viewed in the context of the facts presented, was not unreasonable.”

On January 29, 2007, the Fifth Circuit (Stewart, with Wiener and Benavides) reversed the district court’s grant of habeas relief on a claim of ineffective assistance of counsel. Conner v. Quarterman. Conner had been sentenced to death for a robbery-murder. The perpetrator of the crime shot a witness before killing the victim. This witness identified Conner from a photo spread, as did two other witnesses who saw a man running from the area where the offenses occurred. An eyewitness who had struggled with the assailant at the crime scene was unable to identify Conner as were some other witnesses who saw the fleeing suspect. The various descriptions provided by the witnesses had numerous inconsistencies. A juice bottle found at the crime scene had Conner’s fingerprint on it, along with a second unidentified fingerprint. Conner maintained his innocence throughout trial. In state habeas proceedings, he alleged that trial counsel was ineffective in failing to discover that due to a leg injury that had occurred two years before the capital crime, Conner could not run easily and had a limp. Notably, none of the witnesses reported that the assailant limped. The state court found no deficient performance, crediting the affidavits from trial counsel who denied being told by Conner about continuing problems with his leg or noticing any limp. Conner raised the claim in his federal habeas petition. Included in the exhibits to the petition were medical records and general information about his condition that had not been provided to the state habeas court. The district court granted an evidentiary hearing on the claim over the warden’s objection that the requirements of 28 U.S.C. § 2254(e) had not been met. Following the hearing, relief was granted.

The panel began was addressing whether Conner’s inclusion of exhibits with his petition that had not been before the state court rendered his claim unexhausted. Given that the allegations in state court were “fairly specific,” the panel ruled that the new exhibits did not fundamentally alter the claim and it was eligible for consideration by the federal court. The panel went on to find, however, that Conner’s failure to present the state court with the medical records established that he had not diligently developed the claim while in state habeas proceedings. This was true irrespective of the fact that he had not been granted an evidentiary hearing in state court. Because of Conner’s lack of diligence, it was improper for the district court to have conducted an evidentiary hearing on the claim.

The panel went on to find that the state court’s rejection of the claim “was not objectively unreasonable because Conner cannot show prejudice resulting from his counsel’s alleged deficiency in not reviewing his medical history.” This was true, in the panel’s view, even if the evidence presented at the evidentiary hearing was considered. In reaching this conclusion, the panel noted in particular the evidence that would have been unaffected by introduction of testimony about Conner’s limp – the identification of Conner by the witness who was shot at the scene and Conner’s fingerprint on a bottle near the cash register. The panel also pointed out the absence of testimony about Conner’s gait around the time of the capital murder and that his attorneys never noticed his limp. Further, because none of the witnesses who saw the suspect running were asked whether he had an unusual gait, the new evidence did not directly contradict the trial testimony. The grant of habeas relief was accordingly reversed.

The Sixth Circuit has voted to deny en banc rehearing in this death penalty habeas appeal, in which all three panelists agreed that the prosecutors made over a dozen improper comments throughout trial. But the panel voted 2-1 to deny relief on the ground that the comments were "minimally prejudicial" to the petitioner. (My coverage here.)

Judges Moore and Martin dissent from the denial, with Judge Martin taking an opportunity to castigate unethical prosecutors, the politicization of the death penalty, and even Ohio’s system of electing its judges. Chief Judge Boggs weighs in with a concurrence just to reassure everyone that the panel opinion was solid. Thanks, dude.

SMALL PRINT
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