Leading off the edition is a split Fifth Circuit panel opinion on timeliness, Rolando Ruiz v. Quarterman. Without getting in to the rather complicated procedural history of Ruiz (which will be done below) the panel holds that Ruiz had not been dilatory in raising the ineffective assistance claim at issue in this Rule 60 appeal.  The reason? "Texas interfered with Ruiz's constitutional rights at every critical turn in this litigation, appointing ineffective trial counsel who failed to investigate his past; reappointing the same on direct appeal, despite Ruiz's pleas for a new lawyer; and finally providing Ruiz with incompetent state habeas counsel, who presented the CCA with ‘a set of boilerplate, frivolous claims." Heaping well deserved praise on the Texas Defenders, the split panel remands with instruction to decide the underlying claims of ineffective assistance trial counsel at issue in the Rule 60 motion on the merits.

In the other notable cases of the week, the  Fifth Circuit has granted a COA on three additional issues in Jonathan Bruce Reed v. Quarterman  (prosecutorial discovery violations, a Penry II claim, & failure to grant a jury instruction on first-degree, non-capital murder).  The Florida Supreme Court in in Crosley Green v. State has granted relief under Rompilla v. Beard as counsel "was prejudicially ineffective in failing to investigate the case file in defendant's prior" out of state conviction.

Since the last edition the real news may be the numerous stays and withdrawn execution dates in light of Baze v. Rees. On Monday the Nevada Supreme Court  suspended all executions in that state, including that of volunteer William Castillo a few hours before he was scheduled to be executed. [Briefs at HarmfulError.com]  The United States Supreme Court wasn't to be left out of the stay litigation with it refusing to lift the stay of execution Tuesday for Jack Jones, Jr. (over a Justice Scalia dissent) and ordering a stay of the Christopher Emmett execution in Virginia Wednesday. Finally, two Texas November dates, those of Allen Bridgers and  Dale Scheanette, have been withdrawn.

The Southern Center for Human Rights, the National Association of Criminal Defense Lawyers, Reprieve and Jaffe, Strickland, Drennan & Dodd, P.C. will be presenting a CLE entitled Making Your Record To Save Your Client's Life.  The CLE is scheduled for November 8 &9 in Birmingham, Alabama. The program is a learn-by-doing seminar that will focus on the skills necessary to preserve issues for appellate review of capital cases.

Looking ahead, few new opinions have hit Lexis so far.  Two notable ones come from the Fifth Circuit.  In Fernando Garcia v. Quarterman relief is granted on rehearing on Penry II related claims. In Jose Rivera v. Quarterman the panel holds Rivera is barred from being executed as he is mentally retarded,  nonetheless the panel remands  for a determination on whether his counsel filed for federal relief too late. 

For federal habeas types, I would strongly encourage HAT's Week at a Glance as they have seemingly expanded their coverage to include substantially more noncapital cases.

As always thanks for reading. - k

More information on pending execution dates*

Week of  October 8, 2007 --  In Favor of Life or Liberty

• Rolando Ruiz v. Quarterman, 2007 U.S. App. LEXIS 23920 (5th Cir 10/11/2007) Rule 60 motion granted, remand ordered to address ineffective assistance of counsel claims. Very strong and sharp language about the gross deficiencies in the Texas scheme for the appointment of counsel.
  

• Jonathan Bruce Reed v. Quarterman, 2007 U.S. App. LEXIS 23728 (5th Cir 10/9/2007) COA granted on 1) a denial of a request for discovery of files regarding contact between the prosecution and an informant; 2) a Penry claim arguing that the former Texas capital sentencing scheme did not permit the sentencing jury to consider fully his mitigating evidence; and 3) a claim that his due process rights violated by a denial of a requested jury instruction on first-degree, non-capital murder as a lesser included offense.  Briefing  schedule set. 
  

• Crosley Green v. State, 2007 Fla. LEXIS 1898 (FL 10/11/2007)  Emphasizing the need to look at a client's prior convictions, the trial court's ordering "a new penalty phase is affirmed as the trial court properly determined that counsel was prejudicially ineffective in failing to investigate the case file in defendant's prior New York case."

Week of  October 8, 2007 --  In Favor of Death

• Ricardo Ortiz v. Quarterman, 2007 U.S. App. LEXIS 23729 (5th Cir 10/10/2007) Relief denied on claims including whether the "Texas retaliation statute was an unconstitutional ex post facto law when applied to him" and COA denied on "two additional issues, arguing that reasonable jurists would find debatable whether the trial court improperly excluded a veniremember from jury service because of her views regarding the death penalty and whether the trial court improperly instructed the jury on the requisite burden of proof for imposition of the death penalty."

• David Frances v. State, 2007 Fla. LEXIS 1897 (FL 10/11/2007) Relief denied among three main claims, with various subclaims, including, broadly  "(1) the trial court improperly restricted his presentation of guilt and penalty phase evidence that was relevant to his relative culpability for the crimes and what sentence he should receive; (2) the trial court improperly found the heinous, atrocious, or cruel aggravating circumstance (HAC), excluded existing mitigating evidence, and concluded that the aggravating circumstances outweighed the mitigating circumstances; and (3) Florida's death penalty statute is unconstitutional under Ring v. Arizona. We address each claim in turn below."

• Johnny Kormondy v. State, 2007 Fla. LEXIS 1896(FL 10/11/2007) Postconviction relief denied on claims "that (1) trial counsel rendered ineffective assistance during the guilt phase of trial by failing to require Kormondy's presence at pretrial conferences; (2) trial counsel rendered ineffective assistance by allowing Kormondy's statements to law enforcement officers to be introduced into evidence; (3) trial counsel rendered ineffective assistance by conceding Kornondy's guilt for burglary and robbery; (4) trial counsel rendered ineffective assistance by failing to impeach the State's witnesses; (5) trial counsel rendered ineffective assistance by failing to move for the disqualification of Judge Kuder and failing to withdraw from representation before the first trial; (6) trial counsel rendered ineffective assistance during the second penalty phase; (7) trial court erred by finding that the newly discovered evidence of recanted testimony was not credible; (8) rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar, which prevents counsel from contacting jurors, is unconstitutional; (9) execution by electrocution and lethal injection are cruel or unusual punishment or both; (10) his constitutional right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution; and (11) the cumulative effect of errors deprived Kormondy of a fair trial."  Habeas relief denied on claims "that (1) appellate counsel was ineffective for failing to argue to this Court that the trial court's order failed to consider record mitigation in violation of Farr v. State; (2) appellate counsel was ineffective for not presenting Mrs. McAdams' prior deposition testimony on direct appeal to this Court in order to establish that the trial court erred by not allowing Kormondy to confront Mrs. McAdams; and (3) appellate counsel was ineffective for failing to argue that Kormondy's waiver of mitigation was invalid because the trial court did not ask trial counsel what investigation for mitigation was done and what mitigation was available in violation of Koon v. Dugger."
  

• Artemus Walker v. State, 2007 Ga. LEXIS 729 (Ga 10/9/207) Relief denied on claims including: (A) trial court's improper comments on the evidence adduced at trial; (B) improper use of victim-impact evidence during the trial and sentencing; ( C) chain of custody for blood samples; (D) improper prosecutorial comments during the evidence and in closing in both phases of the trial; (E) admission of certain physical evidence; and (F) intracase proportionality where codefendant had received only a life sentence.

• State v. James Frazier, 2007 Ohio 5048 (Ohio 10/10/2007) Relief denied on claims relating to: (A) the failure to adequately define the standard of proof needed for mitigation leading jurors to speculate that it might be “beyond a reasonable doubt” as in other stages of the trial; (B) mental retardation related claims (including what looks to have been a strong IAC claim); (C) IAC (pretrial preparation, voir dire, during the guilt and sentencing phases of his trial by failing to object at various times, failing to retain a substance-abuse expert to present testimony about his history of abusing drugs and alcohol and failing to request a venue change); & (D) independent reweighing

• State v. Percy June Hutton, 2007 Ohio 5443  (8th App  Dist Ohio 10/11/2007) Relief denied on n the basis of timeliness of the petition. Claims denied include IAC (guilt/penalty), state discovery violations, Brady, Napue, factual innocence, and denial of an evidentiary hearing.

• Fernando Garcia v. Quarterman, 2007 U.S. App. LEXIS 24240 (5th Cir 10/15/2007)  Relief granted relief on rehearing on Penry II claims.  HAT's WAG has the details.0

• Jose Rivera v. Quarterman ,  (5th Cir 10/18/2007) ) Rivera held to be mentally retarded under Atkins.  Before you break out the champagne bottles, the panel also remanded for a determination if Rivera's counsel filed for federal relief too late.  The record below, the panel holds, is silent on whether Rivera is entitled to take advantage of equitable tolling, however if Rivera is not entitled to equitable tolling, retarded or not, relief must be denied.

• Comm. v. Robert Rega, 2007 Pa. LEXIS 2176 (Penn 10/17/2007) Relief denied on claims including: (1) sufficiency; (2) issues arising out of the search of a familial property and for witness tampering; (3) Accomplice witness instruction; (4) denial of mistrial following a damaging outburst of testimony by a witness by the Commonwealth; (5) summary of a co-defendant's hearsay statement admitted through a state trooper; (6) search of a jail cell; & (7) IAC (issues relating to consolidation, victim impact, voir dire & failure to investigate/present mitigation).
  

• State v. Thomas Ice, 2007 Ore. LEXIS 815 (Ore 10/11/2007) Consecutive sentences implicate the Sixth Amendment under state's sentencing scheme.
  

Selected Excerpts from, & Commentary on, this Edition's Cases
[Note formatting may be off below this point.]

On October 9, 2007, the Fifth Circuit (Prado with Higginbotham and Davis) granted in part Jonathan Reed's request for a COA. Reed v. Quarterman, ___ F.3d ___, 2007 WL 2921826 (5th Cir. Oct. 9, 2007). First, the panel concluded that reasonable jurists could debate whether the district court had abused its discretion in denying Reed's discovery request related to Napue and Brady claims. Although the district court had found that the existing evidence did not imply that the district attorney's office was aware that a jailhouse snitch had provided false testimony, the panel noted an incorrect statement in the lower court's analysis and concluded that Reed had raised a plausible theory that the prosecution had coached the snitch to use a fact that was erroneous. It was also debatable whether Reed had established good cause for discovery of information concerning the existence of a deal between the snitch and the prosecution. This was true despite the fact that the district court had credited the prosecutor's testimony that no deal existed. The panel also found that Reed was entitled to a COA on his Penry claim which the district court had denied without the benefit of the Fifth Circuit's en banc decision in the Nelson case, as well as the Supreme Court's recent Brewer and Abdul-Kabir opinions. In addition, Reed was granted a COA on his claim that his constitutional rights were violated by the refusal of the trial court to instruct the jury on the lesser included offense of first degree murder. The panel noted evidence supporting a finding that the murder did not occur in the course of an attempted rape or robbery, elements of capital murder. As for the state court's finding that the claim was foreclosed because Reed had denied all involvement in the homicide rather than presenting evidence or arguing that the murder was not committed in the course of attempted rape or robbery, the panel found that “reasonable jurists could debate whether this reliance was an unreasonable application of clearly established federal law.”