[t]he Supreme Court remanded this case with instructions for us to re-consider the procedural propriety of our ruling that the state courts unreasonably applied Strickland in determining that Richey had received constitutionally adequate representation at his trial. Richey and the State have advanced different interpretations of the Supreme Court's remand language. Under either interpretation, we conclude that we properly reached and considered the merits of Richey's ineffective-assistance claim in our prior disposition. Moreover, because the deficient performance of Richey's counsel undermines our confidence in the outcome of his trial, and because we believe that the Ohio state courts unreasonably applied Strickland in determining otherwise, we reverse the judgment of the district court and remand with instructions to enter a conditional writ of habeas corpus, giving the State of Ohio ninety days to retry Richey or release him.

Looking at the news, an administrative law judge in North Carolina has ruled [order  here] the state's execution procedure must be redone as the procedure used to craft the regulations did not provide sufficient input from lawyers for various condemned men .  Ronald Rompilla, whose 1988 death sentence was vacated by a landmark U.S. Supreme Court decision reinforcing the federal guarantees about the quality of counsel -- Rompilla v. Beard --  will spend  the rest of his life in prison, effectively without the chance of parole, following a plea deal this past week.  Kristin Houle, a Soros Justice Fellow at the Texas Coalition to Abolish the Death Penalty, has launched a blog entitled Prevention Not Punishment: Educating the public on the intersection of the death penalty and severe mental illness.

As always thanks for reading. - k

More Execution information*

Week of  July 30, 2007 --  In Favor of Life or Liberty

• Jack Alderman v. Donald, NO. 1:07-CV-1474-BBM (N.D.Ga 7/30/2007) District court denies the State’s motion to dismiss this Georgia lethal injection challenge and will permit discovery to go forward.

• Ex parte Jimmy Davis; (In re: Jimmy Davis v. State of Alabama), 2007 Ala. LEXIS 154 (Ala 8/3/2007) Remand to Court of Criminal Appeals ordered where "[t]he State now concedes that Ex parte Clemons requires reversal of the Court of Criminal Appeals' judgment in this case and urges this Court to remand the case to the Court of Criminal Appeals for the limited purpose of reviewing the merits of the ineffective-assistance-of-counsel claims raised in Davis's appeal to that court."

• Troy Davis v. State, 2007 Ga. LEXIS 572 (8/3/2007) (unpublished) (dissent) Stay motion denied as moot.  Discretionary appeal granted.  Strong dissent on the issue of whether Davis has met the high hurdle for  "late inning" stay & "appeals" litigation.

Week of  July 30, 2007 --  In Favor of Death

• United States v. Angela Johnson, No. 06-1001 (7/30/2007) The Eighth Circuit reverses as multiplicitous five of her ten convictions (and thus four of her eight death sentences) because Johnson's drug conspiracy murder convictions were lesser included offenses of her CCE murder convictions. No mention is made to indicate whether the court considered the possibility that the remaining death sentences should be reversed for rehearing for having been decided in the same proceedings as unconstitutional counts which may have magnified the crime in the eyes of the jury. The panel appeared untroubled by two disconcerting facts in the case below. One is the trial judges observation that “I am troubled by the lack of certainty in the record concerning the precise involvement of Angela Johnson in these crimes.” The other is that Johnson’s former boyfriend, Dustin Honken, who killed the victims in this matter,three adults and two children, was sentenced to death for only the two children, Johnson received it for four victims.

• Dorsey v. Quarterman, No. 06-70039 (5th Cir 7/30/2007) Relief denied. "The first claim based on one or more jurors’ exposure to extraneous material fails under harmless error analysis. The second claim, a Batson claim relating to juror Jerry Riley, is procedurally barred. Dorsey also seeks COA on a claim that his constitutional rights were violated by the trial court’s denial of his challenge for cause against four venire persons who exhibited a bias in favor of the death penalty. Because Dorsey exercised his peremptory challenges to strike all the jurors at issue, there is no claim that the jury that heard the case was not impartial."

• Kevin Watts v. Quarterman, 2007 U.S. App. LEXIS 18295 (5th Cir 8/1/2007) (unpublished)  Failure to raise issue of limitations placed on expert on evidence  direct appeal meant the issue was procedurally barred on habeas.  Even without the procedural bar the issue is held, on the merits, to be meritless.

• People v. Enrique Zambrano, 2007 Cal. LEXIS 8079 (Ca 7/30/2007) Relief denied on claims including: [1] Wheeler/Batson error (court uses comparative juror analysis); [2] restrictions on voir dire; [3] denial of charge severance; [4] discovery violations; [5] admission of photographs; [6] sufficiency of witness-killing special circumstance evidence; [7] reasonable doubt instruction; [8] witness-killing instruction; [9] motive instruction; [10] extrajudicial statements instruction; [11] evidence suppression instruction; [12] flight instruction; [13] notice and discovery of aggravating evidence; [14] cross-examination of defense prison expert; [15]  Biblical references in DA's closing (not objected to); [17] appeals to community vengeance (no objection); [18] future dangerousness; [19] admission of unadjudicated rape; [20] denial of allocution; [21] denial of modification motion; [22] challenges to capital sentencing scheme; [23] denial of new trial motion; [24] conflict of interest; [25] missing reporters' notes; and  [26] unreported conferences.

• Louis Gaskin v. Secretary, Dept. of Corrections, 2007 U.S. App. LEXIS 18451 (11th Cir 8/3/2007) Relief denied on claims relating to: "(1) whether Gaskin was denied the effective assistance of counsel in the penalty phase of his trial based on  counsel’s failure to investigate and present mitigation evidence and to address statutory mitigating circumstances in closing argument; (2) whether Gaskin was denied a fair and impartial jury when the trial court denied his motions to change venue due to pervasive and prejudicial pretrial publicity; and (3) whether Florida’s capital sentencing statute is unconstitutional on its face and as applied, and whether this claim is procedurally defaulted."

Week of  August 6, 2007 --  In Favor of Life or Liberty

• Kenneth Richey v.  Bradshaw, 2007 U.S. App. LEXIS 18983  (6th Cir. 8/10/2007) "The Supreme Court remanded this case with instructions for us to re-consider the procedural propriety of our ruling that the state courts unreasonably applied Strickland in determining that Richey had received constitutionally adequate representation at his trial. Richey and the State have advanced different interpretations of the Supreme Court's remand language. Under either interpretation, we conclude that we properly reached and considered the merits of Richey's ineffective-assistance claim in our prior disposition. Moreover, because the deficient performance of Richey's counsel undermines our confidence in the outcome of his trial, and because we believe that the Ohio state courts unreasonably applied Strickland in determining otherwise, we reverse the judgment of the district court and remand with instructions to enter a conditional writ of habeas corpus, giving the State of Ohio ninety days to retry Richey or release him."

Week of  August 6, 2007 --  In Favor of Death

• State v. Glenn Mann, 2007 Tenn. Crim. App. LEXIS 619 (Tenn Crim App 8/6/2007) "Based on the record, it is clear that the petitioner's petition was filed several years after the statute of limitations had expired."

• State v. Juan Velazquez, 2007 Ariz. LEXIS 75 (Az 8/9/2007) Relief denied on  A.) Witherspoon v. Illinois Challenge;  B.) Morgan v. Illinois Challenge; C.) Double-counting of victim's age; D.) Probable cause finding on aggravating circumstances; E.) Especially cruel aggravator; F.) Previously convicted of a serious offense aggravator; G.) Penalty phase jury instructions ("(1) the sentencing process was mischaracterized as “weighing”; (2) the sentencing process was mischaracterized as “fact-finding”; (3) the nature of the sentencing decision-making process was never correctly described; (4) the instructions created a presumption of death; and (5) the consideration of mitigation evidence was improperly restricted."); H.) penalty phase prosecutorial misconduct in closing arguments; and I.) statutory review of death sentence.

(Advance Sheet Week of  August 13, 2007) --  In Favor of Life or Liberty

• Billie Wayne Coble v. Quarterman, 2007 U.S. App. LEXIS 19327 (5th Cir 8/14/2007) On petition for rehearing, penalty phase relief  granted in light of Abdul-Kabir v. Quarterman and Brewer v. Quarterman, as there was a reasonable likelihood that the Texas special issues precluded the jury from giving meaningful consideration and effect to Coble’s mitigating evidence.  “Coble’s evidence of mental illness and troubled background had meaningful mitigating relevance beyond the scope of the two special issues. Although Coble’s evidence was relevant to the special issues, and the jury may therefore have been able to give partial effect to that evidence in answering the special issues, we conclude that there is a reasonable likelihood that the jury was unable to give meaningful consideration and effect to a major mitigating thrust of Coble’s evidence))its tendency to make him less morally culpable for his crimes))through the special issues.”

• Panetti v. Quarterman, 2007 U.S. App. LEXIS 19--- (5th Cir 8/14/2007).  Although in some ways the case is merely symbolic, the matter is  remanded back to the district court for further proceedings consistent with the Supreme Court’s opinion in Panetti’s case concerning competency to be executed.

• Ronnie Lee Bowling v. Haberline, 2007 U.S. App. LEXIS 19670 (6th Cir. 8/14/2007) (unpublished) Remand as there is no federal bar to litigating state and federal claims avenues of relief, so long as the claims contained in the motion/petition are not the same claims.**

• Ex parte James Henry Borden, Jr. (In re: James Henry Borden, Jr. v. State of Alabama), 2007 Ala. LEXIS 164 (Ala 8/17/2007)  "We conclude that Borden did not fail to comply with Rule 28(a)(10) Ala. R. App. P., and, thus, that he did not waive his ineffective-assistance-of-counsel claims. We also conclude that Borden's juror-misconduct claims were preserved for appellate review. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for proceedings consistent with this opinion."

(Advance Sheet Week of  August 13, 2007) --  In Favor of Death

• Lester Leroy Bower, Jr. v. Quarterman, 2007 U.S. App. LEXIS 19548 (5th Cir 8/16/2007)  Relief denied. Specifically, [A] "Bower argues that his counsel was deficient during the guilt/innocence phase under two broad categories: (1) Buckner’s adoption of the time/proximity defense was unreasonably deficient; and (2) Buckner’s performance at the suppression hearing was unreasonably deficient;" [B] Bower alleges that the state failed to produce exculpatory and impeachment evidence from federal investigative files indicating that: (1) Tate was involved in illegal gambling and drug dealing and was killed because he had used proceeds from drug sales to pay off gambling debts instead of repaying his drug source; (2) in 1983, Fiocchi .22 caliber long rifle subsonic ammunition was readily available at gun shows throughout Texas, including shows in Dallas in November 1983; (3) subsonic ammunition had benign uses including indoor shooting, teaching someone to shoot who did not like loud noises, and getting rid of vermin in populated areas; and (4) Catawba tubes adapted for use as silencers on Ruger pistols were readily available from many sources;" and  [C]  failure to investigate and present mitigation evidence, as well as failing to adequately prepare for witnesses in the penalty phase.

• Kenneth Parr v. Quarterman, No 07-70030 (5th Cir 8/15/2007) Relief denied.  "Parr raises two claims in his application for habeas relief before this court: one, that neither he nor his counsel were present for the setting of his execution date in violation of the Fourteenth and Sixth Amendments;1 and two, that Texas’s method of execution."

• Daniel Wilson v. Mitchell, 2007 U.S. App. LEXIS 19341 (6th Cir. 8/15/2007) Relief denied on claims that:: "1) the erroneous instruction regarding voluntary intoxication was not harmless error; (2) the prosecution violated Brady v. Maryland by failing to disclose a Youth Services report to Wilson’s expert, Dr. Eisenberg, until Dr. Eisenberg was on the stand; (3) a juror was improperly excluded; (4) the trial court improperly instructed the jury regarding Wilson’s unsworn statement; and (5) Wilson’s appellate counsel was ineffective for failing to raise the Brady claim on direct appeal."
  

• Lawrence Reynolds v. Bagley, 2007 U.S. App. LEXIS 19429 (6th Cir. 8/16/2007) Denial of relief affirmed on (A) various claims of ineffective assistance of counsel ("(1) the assistance of an independent pharmacologist, toxicologist, or alcohol expert,” (2) “the assistance of a forensic psychologist to properly investigate, obtain and prepare information to be presented to the jury,” and (3) “the assistance of a competent neurological expert to examine Reynolds to determine if his thought processes were impaired as a result of multiple head injuries he suffered as a child or as a result of his long-term alcohol abuse.”"); (B) jury taint arising from a police officer in the jury pool used voir dire to describe how truthful and effective the detectives involved with the case were; and (C) "sentencing proceedings were fundamentally unfair for two reasons: first, because the trial court filed its sentencing opinion during the sentencing proceeding itself, suggesting that the judge’s mind had been made up and his opinion a fait accompli, regardless of anything that might have transpired during the sentencing hearing; and second, because the trial court’s opinion failed to properly state how the court had weighed aggravating and mitigating factors."
  

• John Middleton v. Roper, 2007 U.S. App. LEXIS 19556 (8th Cir 8/17/2007) Relief denied on claims including:  (A) "he was denied his right to effective assistance of counsel and to due process of law when the state trial court refused to grant his requests for a continuance of the trial. Middleton complains that the State endorsed twenty-three new witnesses only three weeks prior to trial, and that as a result, his counsel were unable adequately to prepare his defense. He contends that counsel were forced to conduct depositions in the evening during the trial instead of readying themselves for the following day's cross examinations, and that their effectiveness at trial suffered as a consequence;" (B) "he trial court, by reciting the Missouri Approved Jury Instructions at the penalty phase rather than a set of instructions requested by Middleton, precluded the jury from giving consideration to mitigating evidence, as required by the Eighth Amendment;" (C)" he trial court's admission of a videotape and photograph showing the bodies of Middleton's murder victims in an uncharged case was so unfairly prejudicial that it violated his rights under the Due Process Clause;" and (D) "his sentence of death is not proportionate to the punishment imposed in similar Missouri cases, and that Missouri's system of proportionality review fails to provide an appropriate comparison among cases."
  

• Thong Le v. State, 2007 Miss. LEXIS 452 (Miss 8/16/2007) Relief denied on post-conviction -- chiefly on grounds that the issues could have been raised on direct appeal -- on claims including: [1] IAC (previously raised on direct appeal); [2] failure to suppress confession; [3] Bruton; [4] Batson; [5] failure to charge aggravating factors in indictment; [6] lethal injection, [7] cumulative error, and [8]double counting of aggravators(pecuniary gain / armed robbery)

• State v. Darrel Stallings, 2007 Kan. LEXIS 481 (Kan 8/10/2007) [On cross-appeal from a trial where the defendant was permitted to allocute before the sentencing jury and a life sentence was subsequently imposed.] "Our statutes provide that a capital murder defendant has the right of allocution before the sentencing judge. Our statutes do not provide a mechanism for a capital murder defendant to make an unsworn, unchallenged statement to the death penalty jury. The legislature bears sole responsibility for allowing or denying the opportunity for a capital murder defendant to plead to the death penalty jury to spare his or her life. There is no common-law or other right which overrides the legislative prescription of criminal procedure. Our statutory scheme does not violate a capital murder defendant's constitutional rights."

Non-Capital

• Anthony Ferreira v. Secretary, DOC, 2007 U.S. App. LEXIS 18680 (11th Cir. 8/7/2007) Discussing timelines for filing where a sentence is vacated and an inmate is subsequently resetnenced.

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

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Kenneth Richey v.  Bradshaw, 2007 U.S. App. LEXIS 18983  (6th Cir. 8/10/2007) "The Supreme Court remanded this case with instructions for us to re-consider the procedural propriety of our ruling that the state courts unreasonably applied Strickland in determining that Richey had received constitutionally adequate representation at his trial. Richey and the State have advanced different interpretations of the Supreme Court's remand language. Under either interpretation, we conclude that we properly reached and considered the merits of Richey's ineffective-assistance claim in our prior disposition. Moreover, because the deficient performance of Richey's counsel undermines our confidence in the outcome of his trial, and because we believe that the Ohio state courts unreasonably applied Strickland in determining otherwise, we reverse the judgment of the district court and remand with instructions to enter a conditional writ of habeas corpus, giving the State of Ohio ninety days to retry Richey or release him." From the daily blog