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Capital
Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070319.htm]
No published grants of relief are noted in this edition.
In the Supreme Court this week
three interesting developments. Transcripts
indicate John Blume gave an unusually good oral argument in Roper v. Weaver, but, nonetheless,
the case appears to still be extremely close. The Supreme Court has
asked for
additional briefing in Danforth v. Minnesota, 06-8273, on the
following question, “[a]re state supreme courts required to use the
standard announced in Teague v. Lane to determine whether
United States Supreme Court decisions apply retroactively to
state-court criminal cases, or may a state court apply state-law- or
state-constitution-based retroactivity tests that afford application of
Supreme Court decisions to a broader class of criminal defendants than
the class defined by Teague?” Finally, the United
States Supreme Court has upheld —
without dissent — a Sixth Circuit stay on lethal injection claims.
In the news, the New York Times on
Monday will run an
article
entitled “In Alabama, Execution Without Representation” by Adam
Liptak. The
Nation looks at the U.S. Attorney scandal & the death
penalty. The Hartford
Courant
has the story of a substantial challenge to the Connecticut death
penalty scheme and the unbridled discretion vested in local
prosecutors. Press
accounts out of Georgia indicate that money has dried up to pay
attorneys handling capital trials and most such trials are now on hold.
Finally, in the first three months of this year alone,
bills
to abolish the death penalty have received serious consideration in
Maryland, Montana, Nebraska, and New Mexico -- in all four states
repeal efforts failed by one vote.
Looking ahead, several
favorable cases are already noted. In Melvin Gene Hodges v. State
the
Alabama Court of Criminal Appeals order a remand "to either conduct an
evidentiary
hearing or
accept evidence in the form of affidavits, written interrogatories, or
depositions [. . . ] regarding Hodges's
allegations that trial counsel failed to conduct an adequate mitigation
investigation and failed to adequately present mitigation evidence at
the penalty phase." The Missouri Supreme Court State
v. Vincent McFadden grants relief on "challenges under Batson
v. Kentucky and Johnson
v. Mississippi."
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
Recent Executions
March
20 Charles
Nealy (Texas)
Pending Executions
March
28 Vincent Gutierrez (Texas)
29 Roy Pippin (Texas)
April
6 Robert Perez (Texas)
16 Bruce Webster (Federal)
17 John Spirko (Ohio)
18 Cathy Henderson (Texas / female)
24 James Filaggi (Ohio)
26 Ryan Dickson (Texas)
More
Execution information*
WEEK OF MARCH 12, 2007
In Favor of
Life or Liberty
Randy
Arroyo v. Quarterman, 2007 U.S. App. LEXIS 6034 (5th Cir
3/15/2007)(unpublished)
Grant of penalty phase relief upheld on grounds relating to age at the
time of the offense.
Favoring Death
Court
en banc upholds the right of an
inmate to drop an otherwise meritorious habeas appeal in order to have
the state assist him in his death. [more here
& here]
Charlton
Akee Turner v. Quarterman, 2007 U.S. App. LEXIS 6049 (5th Cir
3/12/2007)
Relief & COA denied on
claims
relating to: (1) denial of fair and impartial trial by prosecutor's
parole-related comments; (2) ineffective assistance of counsel for
failing to object to prosecutor's parole-related comments; (3)
instruction prohibiting jury from considering parole eligibility
deprived Turner of a fair trial; (4) sentencing instructions contained
vague and undefined terms ("probability," "criminal acts of violence,"
and "continuing threat to society"), violating Turner's right to a fair
trial; (5) Texas death penalty statute violates right to a fair trial
by failing to inform jurors that lack of unanimity on any issue will
result in life verdict; (6) the Dallas County venire process violates
the right to a jury from a representative cross-section of the
community; and (7) the cumulative effect of the violations denied
Turner his right to due process. HAT, as always, has
more.
Jack Smith v. Quarterman,
2007 U.S. App. LEXIS 5744 (5th Cir. March 12, 2007) (unpublished) He
requested a COA on two issues: (1) whether the district court erred in
applying AEDPA provisions to an ineffective assistance of counsel
claim; and (2) whether Smith was deprived of the effective assistance
of counsel.
Arthur
Tyler v. Petro, 2007 Ohio App. LEXIS 1081 (Ohio App 8th 3/14/2007)
A writ of mandamus will not issue to force state prosecutors to give
immunity, however limited, to a key defense witness who would exonerate
the Accused. "Although we may agree with relator's assertion that the
Prosecuting Attorney should seek justice in this case by granting Head
immunity, without any statutory authority to justify the requested
relief, the trial court had no authority to order the County Prosecutor
to grant Head immunity. Accordingly, the trial court properly granted
respondents' motions to dismiss this action for failure to state a
claim upon which relief in mandamus could be granted."
ADVANCE SHEET FOR THE WEEK OF MARCH 19, 2007
In Favor of
Life or Liberty
Melvin Gene Hodges v. State, 2007
Ala. Crim. App. LEXIS 62 (Ala. Crim. App. 3/23/2007)
Remand ordered "for the circuit court to either conduct an evidentiary
hearing or
accept evidence in the form of affidavits, written interrogatories, or
depositions, see Rule 32.9(a), Ala.R.Crim.P., regarding Hodges's
allegations that trial counsel failed to conduct an adequate mitigation
investigation and failed to adequately present mitigation evidence at
the penalty phase. After receiving and considering the
evidence presented, the circuit court shall issue specific written
findings of fact regarding Hodges's claims, and may grant whatever
relief it deems necessary."
State
v. Vincent McFadden, 2007 Mo. LEXIS 40 (Mo. 3/20/2007)
"McFadden raises valid challenges under Batson v. Kentucky and Johnson
v. Mississippi."
Ex Parte Exzavier Stevenson, No.
WR-57,059-02 (Tex Crim App 03/21/07)
Relief granted as to death
sentence as Stevenson appears to suffer from mental retardation.
Favoring Death
The
People v. John Michael Beames, 2007 Cal. LEXIS 2277 (Cal 3/22/2007)
Relief denied most notably on "the trial court’s erroneous failure to
instruct the jury on the lesser included offenses of second degree
murder and involuntary manslaughter deprived him of his federal
constitutional rights to a fair trial, due process of law, trial by
jury, and a reliable penalty determination" and instructions indicating
that the governor may grant clemency in any capital murder case.
In
re:Roy Lee Pippin, 2007 U.S. App. LEXIS 6737 (5th Cir 3/21/2007)
(unpublished)
Relief denied on "Pippin's motion for authorization to
file a successive habeas application. His motions for a stay of
execution and for leave to proceed in forma pauperis are also denied.
The State's motion to strike Pippin's motion for authorization to file
a successive habeas application is denied."
In
re Charles Anthony Nealy, 2007 U.S. App. LEXIS 6435 (5th Cir
3/20/2007) (unpublished)
Permission to file a successor habeas denied.
In
re Charles Anthony Nealy, 2007 U.S. App. LEXIS 6563 (5th Cir
3/20/2007) (unpublished)
Motion for stay and appointment denied. Permission to file a successor
habeas denied.
Robert
Foley v. Parker, 2007 U.S. App. LEXIS 6598 (6th Cir.
3/22/2007)(dissent)
Relief denied on claims relating to ineffective assistance of counsel,
pretrial publicity -- failure to
grant a change of
venue and juror exposure to pretrial publicity. The reason this
opinion is worthy of special notice, as the dissent notes, is how
badly the panel’s majority
rules on procedural issues & how badly it seems to not understand
habeas law. **
Jose
Jimenez v. McDonough, 2007 U.S. App. LEXIS 6803 (11th Cir
3/23/2007)
COA Denied on: "[1] the Florida Supreme Court's refusal on collateral
review to apply a subsequent construction of the burglary statute to
the conduct for which Jimenez was convicted violated due process and
the Eighth Amendment prohibition against the arbitrary and capricious
imposition of a death sentence; [2] Jimenez was deprived of a full and
fair state post-conviction process in violation of the Sixth, Eighth,
and Fourteenth Amendments; . . . [3] the state failed to disclose
exculpatory evidence and/or knowingly presented misleading evidence,
and/or defense counsel unreasonably failed to discover and present
exculpatory evidence, in violation of the Fifth, Sixth, and Eighth
Amendments; [4] Jimenez was denied a fair trial when the state failed
to correct false testimony and presented improper argument in violation
of the Sixth, Eighth, and Fourteenth Amendments; . . . and [5] the
Florida capital sentencing scheme violates the Sixth Amendment by
failing to require that the jury determine all elements of the crime of
capital first-degree murder which made Jimenez eligible for a death
sentence. The district court denied relief on all claims.
COA also
denied on "all of the other claims that the District Court found
procedurally barred by virtue of state court registry counsel's
conduct."
Steven Wayne Hall v. State, 2007
Ala. Crim. App. LEXIS 60 (Ala. Crim. App. 3/23/2007)
Relief denied on Rule 32 petition on ineffective
assistance of counsel including absence of the accused at certain
critical junctures in the trial, jury instructions in both
phases, failure to investigate in the penalty phase, change of venue,
failure to object as to mistakes by the court as to law and fact,
failure to object to prosecutorial misconduct, as well as voir dire
challenges)
Donne
Johnson v. State, 2007 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App.
3/22/2007)
Petition to compel testing of biological evidence as provided by the
Post-Conviction DNA Analysis Act denied.
NOTABLE NONCAPITAL CASES
McKithen
v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007)
Inmate's right to pursue DNA testing under sec. 1983 upheld as a matter
of federal constitutional law.
Selected
Excerpts from, & Commentary on, this Edition's Cases
None noted.
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Karl Keys. CDW is published forty (40) times (or so) a year.
1997-2007
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Thanks for a decade of fun. - k
*Execution
date information per Rick Halperin and other sources.
**Previously involved in representation of individual listed.
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