Capital Defense Weekly

This edition reports just one favorable decision for the week of February 5 to February 12, 2007.  The Fifth Circuit in In re Curtis Moore (unpublished) granted permission to file a successive habeas petition. The issue on which the permission to file was granted remains unknown at press time but is suspected to be an Atkins claim.

News this week is slow.  Following up on last week's note on legislative developments is a quick run down of those developments inspired by NACDL's legislative unit. NACDL has recently noted several important death penalty repeal, moratorium or study bills in several states, including: Colorado, Connecticut, Kansas, Maryland, Montana, Nebraska, New Jersey, New Mexico New York, North Carolina, and South Dakota. Although it is impossible to predict whether any of these bills will be signed in to law, in each of the States listed above the relevant bill is expected to pass in at least one chamber or at least clear committee. In each of the listed states the efforts this legislative term is likely to mark the “high watermark” since restoration of capital punishment for either reform or repeal of the death penalty.

New germane scholarship is noted at SSRN and  by Tarlton.

I should note by way of disclosure this week a case where I previously represented the condemned, Parramore Sanborn v. Parker, as well as one in which my objectivity can reasonably questioned due to my prior work on the co-defendant's direct appeal, Leroy Lynch v. State, are noted.  More at the CDW blog.

Look ahead several cases of note are had. The Oregon Supreme Court in State v. Randy Lee Guzek, following remand by the United States Supreme Court, has again vacated Guzek's death sentence & a new penalty phase ordered on state law evidentiary / statutory construction issues.  In Leroy Lynch v. State the Mississippi Supreme Court remands for an Atkins hearing and notably holds that it will no longer automatically require a MMPI to test for malingering.  A federal district court judge in Louisville, Kentucky granted relief in Parramore Sanborn v. Parker on the State's mental health expert improperly interviewing Sanborn, eliciting from him inappropriate, as well as damning, answers from him, and then being permitted to repeat these damning statements before the jury.

As always thank for reading and if you feel something got 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)

More Execution information*


In Favor of Life or Liberty

Week of February 5, 2007

In re Curtis Moore, No. 10168 (5th Cir 2/7/2007) (unpub)
Permission to file a successive habeas petition granted. The reasons for the grant are unclear but may be an Atkins / mental retardation related issue.

Advance Sheet for the Week of February 12, 2007

State v. Randy Lee Guzek, 2007 Ore. LEXIS 103 (Ore 2/15/2007)
On remand from the Supreme Court.  Death sentence vacated & new penalty phase ordered. Guzek cannot put his mother on the stand as an alibi witness in his resentencing trial in order to establish a penalty phased defense of factual innocence. But, under state law, the jury could hear someone read a transcript of the testimony that Guzek's mother gave during the guilt phase of the trial.

Leroy Lynch v. State, 2007 Miss. LEXIS 34 (Miss 2/15/2007)
Atkins remand noting that MMPI is no longer required for such claims in Mississippi. Further discussion here.

Parramore Sanborn v. Parker, NO. CV: 99-678-C (W.D. Ky 2/14/2007)
The State's expert interviewed Sanborn about his mental condition during the homicide. The interview was conducted over two different days. In between the two meetings counsel met with Sanborn. The State's expert inquired about the meeting and defense strategy a the second meeting. The details of that conversation were relayed to the State & portions of that conversation were permitted to be heard by the jury. “While not necessarily improper when considered independently, Skelton's conjoined questions – about (1) Sanborn's meeting with his attorney and (2) his defense strategy – were tantamount to her asking what he and his attorney had discussed in that meeting. The unnecessary question about the meeting with counsel was not critical to her assessment of Sanborn's credibility and was a clear intrusion into the attorney-client relationship.” I should note there is a good discussion of the use of experts witnesses and how not to use them can be found in the opinion. Further discussion here.

Favoring Death

Week of February 5, 2007

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) held 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.

Stinski v. State, 2007 Ga. LEXIS 128 (Ga 2/7/2007)
"Court granted [his] application [for interlocutory appeal] . . . and directed the parties to address whether the trial court erred in denying Stinski's motion to suppress evidence obtained during a warrantless seizure and search of a red tote bag; whether the trial court erred in refusing to suppress Stinski's first custodial statement; whether the trial court erred in denying Stinski's motion to exclude certain photographs from evidence; and whether the trial court erred in denying Stinski's motions concerning the amended discovery statute.” On appeal, Stinski also “raised an additional argument alleging that the trial court erred in denying his motion to quash the indictment based on the participation of an allegedly-ineligible grand juror.”

Advance Sheet for the Week of February 12, 2007

People v. Steven Bell,  2007 Cal. LEXIS 1493 (Cal 2/15/2007)
The Court finds error in the trial court's “decision to strike, at the prosecutor's request, a question and answer on cross-examination of a defense expert;” the error, however is harmless. Findlaw notes relief denied upon several other issues, as well as: “1) Wheeler/Batson motions; 2) judicial misconduct involving disparaging remarks about defense counsel; 3) evidence of defendant's lack of remorse during the guilt phase trial; 4) a restriction on expert testimony; 5) the trial court's treatment of a holdout juror; 6) the unconstitutionality of California's death penalty statute; and 7) cumulative prejudice from errors.”

People v. Andrew Urdiales,  2007 Ill. LEXIS 437 (Ill 2/16/2007)
On direct appeal, relief denied on claims that: "(1) the trial court erred in ordering defendant restrained during trial, and instructing the jury that "security measures" had been implemented; (2) the trial court's repeated on-the-record criticisms of recent appellate court opinions deprived defendant of due process and fundamental fairness; (3) the trial court denied defendant due process and fundamental fairness when the court disparaged the motives and conduct of attorneys from the Office of the State Appellate Defender; (4) the trial court abused its discretion in rejecting defendant's plea of guilty but mentally ill; (5) the trial court's verdict of guilty, instead of guilty but mentally ill, was against the manifest weight of the evidence; (6) the trial court's statement to the sentencing jury, that the court had rejected defendant's insanity defense at trial, and the prosecutor's reference thereto in closing argument, "improperly demeaned the defendant's mitigating evidence of mental illness, and punished defendant for exercising his constitutional right to present a defense"; (7) the trial court erred in denying defendant's request to submit experts' reports to the jury; (8) the trial court erred in improperly assisting the prosecutor in cross-examining a witness and thus establishing a foundation for a prosecution exhibit; (9) the prosecutor's closing argument denied defendant due process; (10) the sentencing jury should have been specifically instructed that a background of extreme emotional or physical abuse is a mitigating factor; and (11) the Illinois death penalty statute violates principles announced in Apprendi in that it does not require application of the reasonable doubt standard at the second stage of capital sentencing proceedings."

State v. Hoffner, 2007 Ohio 376 (Ohio 2/14/2007)
Petition to reopen appeal denied as "Hoffner waited more than five years before filing his application" and was hence out of time

Noncapital or No Longer Under Death Sentence

Omar v. Harvey, 2007 U.S. App. LEXIS 2891 (D.C. Cir 2/9/2007)
Lower court's issuance of preliminary injunction to preserve jurisdiction where the American government seeks to transfer U.S. citizen to Iraqi government control is affirmed.

Eric Clemmons v. Armontrout, 2007 U.S. App. LEXIS 3105 (8th Cir 2/12/2007)
Denial of qualified immunity for defendant-investigator is reversed where: 1) the undisputed facts established that the investigator's actions were not intentional or reckless, but were at most negligent; 2) plaintiff failed to show defendant consciously sought to suppress exculpatory evidence; and 3) there were no allegations of unlawful coercion to suppress evidence or refrain investigation. (from Findlaw.com)

Selected Excerpts from, & Commentary on, this Edition's Cases
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) held to bar habeas relief where Nelson could have filed a pro se barebones petition in a timely manner.

Unsurprisingly the decision Marlin Nelson v. Quarterman, 2007 U.S. App. LEXIS 3018 (5th Cir 2/9/2007) comes from the Fifth Circuit.

Marlin Nelson was sentenced to death in Texas in 1987. The same Texas capital sentencing scheme under which Nelson was sentenced is the same that the United States Supreme Court held in Penry I & Penry II failed to provide an adequate vehicle for the consideration of mitigation evidence. The mitigation evidence in Nelson's case included that he repeatedly raped and sodomized as a child (the jury did not hear, however, that the assaults occurred after he was kidnapped by a stranger at age 11 in a convenience store and that his personality changed for the worse following that trauma).

After exhausting his state remedies “Nelson moved for the appointment of federal habeas counsel on September 17, 2002. However, the district court did not appoint counsel until March 13, 2003, nearly six months after Nelson had moved for the appointment and almost three months after the expiration of AEDPA's statute of limitations.”

Curiously, however, the panel avoids any serious discussion of 21 U.S.C. sec. 848 and never mentions the failure of the district court to timely act. Congress determined in sec. 848 that capital habeas corpus is so different than noncapital habeas corpus that any person facing death must be appointed counsel in any proceeding in federal court; the entire scheme is set for thin greater detail in by the Court in McFarland v. Scott. The Fifth Circuit, in cases like Gosch v. Scott & McFarland v. Scott, has long expressed open hostility to the language and intent of that statute and Nelson is merely the latest victim decision in that line of cases.

In Nelson's case the district court didn't follow through on its ministerial role under 848 of finding and appointing capital habeas counsel. The district court never warned Nelson that it would be unable to timely find counsel & that the condemned should file pro se to protect his rights a “skeletal petition.” Rather than fault the district court's untimely appointment of counsel and its failure to protect the rights of an indigent litigant, however, the Nelson panel holds that Nelson must now die without federal review of his sentence due to the district court's failure to timely act.

“Nelson argues that equitable tolling applies to the time period during which he lacked federal habeas counsel because the district court did not make the appointment until six months after he made his request and after the limitations period had already expired. However, this court has previously held that a defendant's pro se status will not excuse an untimely habeas petition. The district court was correct to conclude that Nelson knew about the impending deadline and could have filed a pro se skeletal petition before the limitations period expired.”

I would be remiss not to note, however, there is an alternative holding in Nelson v. Quarterman that is almost as bad, but that at least isn't as outrageous.

The habeas petition is here, however, the Fifth Circuit briefs are unavailable as that Court's PACER does not appear to catalog briefs. Reading through the district court pleadings it appears likely that a Court would be hard pressed (save for potential procedural defenses by the Respondent) not to grant relief.

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. From HAT:
On February 6, 2007, the Eighth Circuit (Beam, with Loken and Gruender) affirmed the denial of habeas relief to Missouri death row inmate Daniel Skillicorn. Skillicorn v. Luebbers, ___ F.3d ___, 2007 WL 328586 (8th Cir. Feb. 6, 2007). Skillicorn was charged with murder on an accomplice theory. His co-defendant was tried separately. Skillicorn's primary defense was that he did not harbor the requisite mental state for conviction of first degree murder. The panel finds: (1) the Missouri Supreme Court did not unreasonable apply Chambers v. Mississippi, 410 U.S. 284 (1973), in ruling that Skillicorn's due process rights were not violated by the exclusion of his co-defendant's statement during the guilt-innocence phase of the trial; (2) Skillicorn's constitutional rights were not violated by the exclusion of his expert's testimony after defense counsel refused to allow the expert to disclose his file to the prosecution; (3) defense counsel was not ineffective in failing to elicit specific testimony from a witness given that the witness would not have been able to testify as Skillicorn desired; (4) defense counsel did not perform deficiently in failing to develop additional background and social history information and in failing to present an expert to explain how Skillicorn's past contributed to his becoming a compliant follower of sociopaths, given that counsel did present some background information and an expert had been expected to testify but did not because he apparently possessed damaging information defense counsel did not want revealed to the prosecution; (5) additional evidence about Skillicorn's childhood and battles with drugs and alcohol was unlikely to have saved him from receiving a death sentence given his prior conviction for second degree murder and a spate of crimes he and the co-defendant committed while on the run after the capital murder; (6) Missouri Supreme Court did not unreasonably apply Strickland in denying relief on Skillicorn's claim that counsel was ineffective in failing to put on evidence in the penalty phase about Skillicorn's good behavior while in a drug treatment center and while in the county jail awaiting trial; (7) claim that defense counsel was ineffective in not addressing a problem with the defense theory during his closing argument was without merit given that the bad position counsel was in “was not counsel's fault as much as the fault of the unfortunate facts of this murder case”; (8) Skillicorn failed to establish cause or prejudice to overcome the default of a claim involving the the prosecution's failure to reveal that authorities were unable to find corroboration regarding the murder in Mexico that Skillicorn had admitted involvement in; (9) the failure of authorities to find evidence corroborating Skillicorn's statement was not relevant to the question of the admissibility of that statement; and (10) The Missouri Supreme Court did not unreasonably apply Jackson v. Virginia in finding sufficient evidence to support Skillicorn's conviction and sentence.

SMALL PRINT
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ISSN: 1523-6684

As always, please forgive the typos & unorthodox citation methods.  Thanks for a decade of fun. - k

*Execution date information per Rick Halperin and other sources