As always thanks for reading. - k

More Execution information*

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, jury instructions on  Texas' future dangerousness special issue improperly barred the jurors from giving weight to this mitigating evidence, preventing the jury from expressing its "reasoned moral response to a major mitigating thrust" of defendant's evidence.

• Scott Panetti v. Quarterman, 2007 U.S. App. LEXIS 19379, (5th Cir 8/14/2007) Remand 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 LEXIS 19670 (6th Cir. 8/14/2007) (unpublished) Remand as there is no federal bar to litigating state and federal avenues of relief, so long as the claims contained in the motions/petitions are not the same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."

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." (Briefs are on PACER / oral argument)

• 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."

• 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)

(Advance Sheet Week of  August 20, 2007) --  In Favor of Life or Liberty

• Terrick Nooner v. Norris, 2007 U.S. App. LEXIS 20186 (8th Cir 8/24/2007) Remand ordered on Ford-related claims as: (1) competency became ripe as soon as an execution date was set,  and (2) "statutory bar on second or successive applications does not apply to Ford-based incompetency claims [ ] after the state has obtained an execution warrant."(Briefs are on PACER / oral argument)

• Comm. v. Simon Perila, No. 448 CAP (Pa 8/18/2007) Grant of relief below affirmed as the defendant is mentally retarded.

(Advance Sheet Week of  August 20, 2007) --  In Favor of Death

• Richard Phillips v. Ornoski, 2007 U.S. App. LEXIS 19825 (9th Cir 8/21/2007) Extension of time to respond on appeal in this capital habeas appeal granted with clear implications for the pending opt-in regulations.

• Luther Williams v. Allen, 2007 U..S. App. LEXIS 19836 (11th Cir 8/21/2007) "We conclude that the district court did not abuse its discretion in dismissing Williams’s § 1983 action due to his unnecessary delay, especially given the strong presumption against the grant of equitable relief."

• People v. Ignacio Tafoya, 2007 Cal. LEXIS 8907 (Cal 8/20/2007) Relief denied on claims including: "1) denial of severance motions; 2) evidence regarding a prosecution witness; 3) denial of a request for telephone privileges; 4) voir dire procedures; 5) the trial court's comments about hardship exclusions from jury duty; 6) the sufficiency of the evidence; 7) the exclusion of a statement made by a victim to a witness; 8) a decision allowing the prosecution to reopen its cross-examination of defendant; 9) prosecutorial misconduct; 10) jury instructions; 11) evidence of unadjudicated criminal activity; 12) denial of a motion for new trial based on alleged jury misconduct; 13) denial of an automatic application for modification of the death judgment; 14) miscellaneous constitutional issues; 15) the proportionality of the sentence; 16) a challenge under international law; 17) the method of execution; and 18) cumulative error." [via Findlaw]

• State v. Paul Cummings, 2007 N.C. LEXIS 815 (N.C. 8/24/2007) Relief denied on numerous claims including: (A) denial challenges to certain jurors; (B) trial court's sustaining prosecution objections to certain questions asked by defense counsel during voir dire including whether their decisions would be influenced by their ideas about the costs of life imprisonment versus the costs of a death sentence; (C) trial court's refusal to allow the defense to present to the jury during penalty proceeding closing argument an exhibit containing the statement that life imprisonment is the presumptive sentence for first-degree murder “unless and until the prosecution proves otherwise;" (D) "trial court erred in failing to intervene during the prosecution's penalty proceeding closing argument when the prosecutor began to discuss how defendant's crime was committed 'for money';
• ” (E) "trial court erred in failing to intervene ex mero motu in the prosecution's closing argument when the prosecution read a certain letter from the victim's son;" (F) "trial court erred in failing to intervene ex mero motu when the prosecutor stated: 'They want to talk about compassion, mercy. That's not the law. That's not the standard. If it was, you wouldn't forget about the compassion and mercy that he showed for her. No, don't base it on any of that';" (G) "the trial court erred in instructing the jury pursuant to N.C.G.S. § 15A-2000(f)(1) as the evidence was insufficient to support a jury finding that defendant's prior criminal history was insignificant;" (H) "the prosecution's decision to proceed capitally was influenced by improper considerations of race and political aspiration;" and (I) proportionality. [brief here other recent N.C. briefs here]
  

• Leif Halvorsen v. Comm.,  2007 Ky. LEXIS 177 (Ky 8/23/2007) Relief denied on numerous claims "within a broad assertion that the 'jury never learned who he was, and never heard his story'. The principal focus of this contention revolves around trial counsel's alleged failure to consult with Appellant, which resulted in a failure to investigate and present evidence that would have supported the defenses of intoxication, duress, and extreme emotional disturbance (EED) ." (briefs to be available here)
  

• Marco Chapman v. Comm.,  2007 Ky. LEXIS 178 (Ky 8/23/2007) The defendant negotiated with the Commonwealth to plead guilty and be sentenced to death.  Although appointed counsel raises numerous issues those are in the main unpreserved and without merit.  "The case before us is the review of Chapman's conviction and sentence in which we are asked to resolve several questions concerning the death penalty in Kentucky. The ultimate question is whether a defendant may enter into a plea agreement to forgo a jury trial and sentencing and volunteer for the death penalty." (briefs to be available here)

• Jimmy Harris v. State, 2007 Okla. Crim. App. LEXIS 32 (Okla. Crim. App. 8/20/2007) Relief denied on numerous claims of trial and appellate counsel ineffectiveness. Appellate counsel "failed to raise several meritorious claims" including "prosecutorial misconduct occurred in the first stage of Harris’s trial" including denigration of counsel" and attempting to "incite societal alarm by referring to the missing murder weapon;" shackling related issues, instructions on affirmative defenses, improper use of victim evidence,  failing to challenge state death penalty scheme, failing to raise validity of continuing threat, failing to challenge lack of jury determination of mental retardation claim, failing to adequate investigate juror misconduct related claims, and various evidentiary rulings.Trial counsel were ineffective: failing to adequately investigate guilt and penalty phase claims, including mitigation evidence.

• Comm. v. Bernard Cousar, 2007 Pa. LEXIS 1697 (Pa 8/21/2007) Relief denied on claims including: (A) Sufficiency of the Evidence; (B) weight of the evidence; (C)  the trial court abused its discretion in allowing the Commonwealth to try the charges jointly; (D) limitation on defense witness's testimony; (E) trial court should not have allowed the Commonwealth to introduce evidence of his tattoo with the letters “M.O.B.;” (F) prosecutorial bolstering of key witness, (G) prosecution testifying in penalty phase closing to facts not in evidence; (H)  flight charge;  and (I) statutory review.

Non-Capital

• State v. Gary Benn,  2007 Wash. LEXIS 573 (Wash 8/23/2007) "[A] jury's failure to find an aggravating factor during the penalty phase of a capital trial does not constitute an acquittal of that aggravating factor implicating double jeopardy."

Selected Excerpts from, & Commentary on, this Edition's Cases
[Note formatting may be off below this point.]
Billie Wayne Coble v. Quarterman, 2007 U.S. App. LEXIS 19327 (5th Cir 8/14/2007)  On petition for rehearing Judge Emilio Garza, writing for the panel, orders penalty phase relief  in light of Abdul-Kabir v. Quarterman and Brewer v. Quarterman.  The panel holds 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.”  From that opinion: