The stay litigation arising out of Baze v. Rees remains center stage in this edition.  Just four serious execution dates remain scheduled for the rest of the year and no one has been executed now in over a month.  The next major test of lethal injection related stay litigation comes in Earl Wesley Berry v. Epps, this week.  Berry is a lethal injection challenge from Mississippi with an execution date of October 30.  The United States Supreme Court will likely either grant or deny cert  by Tuesday afternoon. A stay in Berry would lend credence to those those who are there is a de facto national moratorium on lethal injection until Baze is decided, a cert denial will likely see a rush of new execution dates. As this is a very fluid situation, please tune in to the daily blog, or a source like CapDefNet, for the latest developments.

In the lower courts several opinions of note are had.  In Fernando Garcia v. Quarterman the Fifth Circuit on rehearing in an unpublished opinion grants relief.  The grant is ordered here in light of Penry II as the jury instructions did not permit jurors to give adequate weight to the mitigation evidence submitted by Garcia, including a horrific history of being sexually abused as a child.

The Fifth Circuit in Jose Rivera v. Quarterman remands for additional proceedings.  Rivera clearly meets the requirements of being mentally retarded. Unfortunately for Rivera  the panel was unable to determine why Rivera's habeas petition was tardy under 28 U.S.C. § 2244.  The panel ordered a remand to determine whether the deadlines of  § 2244 were met in this case, and if not if any exceptions are applicable.

In other news, "a former Tennessee Attorney General, W.J. Cody, and a U.S. Court of Appeals Judge, Gilbert Merritt, both members of the American Bar Association's Tennessee Death Penalty Assessment Team, called on policymakers to thoroughly review the state's capital punishment laws and implement significant changes that address concerns such as wrongful convictions, meeting the needs of victims' family members, and ensuring that the state complies with minimum standards required for fairness in capital trials."   The ABA’s Section of Individual Rights and Responsibilities’ magazine Human Rights, devotes  an entire  issue to the death penalty.  DPIC notes "[a] shortage of state funds to pay defense attorneys, experts, and investigators has brought jury selection in the trial of Brian Nichols in Georgia to a halt. " Finally, proving it is never too late to negotiate a plea, HAT's Week at a Glance notes "Judge Lynwood Smith of the Northern District of Alabama granted Willie Dobyne´s motion to dismiss his federal habeas petition with prejudice" in exchange for a sentence of life imprisonment without parole.

In Texas news, the Houston Chronicle notes a "petition signed by 309 Texas lawyers — including two former state Supreme Court justices — was filed Wednesday asking the Texas Court of Criminal Appeals to accept electronic filings to avoid a repeat of the controversial events leading to the execution of Michael Richard.”  Recall petitions calling for the ouster of Texas Court of Criminal Appeals Presiding Judge Sharon Keller now have well over 1000 names, including a separate first ever NACDL petition to remove a judge. ” 

Looking ahead to the next edition several favorable decisions -- all of which are address on the daily blog -- are noted.  Most notably, the New York death penalty remains dead following the Court of Appeals decision in  People v. John Taylor. In New Mexico the high cost of death penalty defense in State v. Robert Young caused that state's highest court  to bar any additional death penalty proceedings in that case until the defense is adequately funded.

Please note, in response to several recent inquiries, the copyright is waived on the newsletter and the daily blog save for those works created by others, such as those found in the last section of this email.

As always thanks for reading. - k

More information on pending execution dates*

Week of  October 15, 2007 --  In Favor of Life or Liberty

• 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.

• Jack Alderman v. State, S08w0207 (GA 10/16/2007) Stay granted in light of Baze v. Rees.

• ACLU of Nevada v. Skolink, No. 50354 (Nev 10/15/2007) All Nevada executions stayed pending resolution of lethal injection challenges, including that of the volunteer at issue in this litigation.

• Jose Rivera v. Quarterman,  2007 U.S. App. LEXIS 24----(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.

• State v. Donna Roberts,  2007 Ohio App. LEXIS 4956 (Ohio11th App Dist  10/19/2007) "Given the interplay between the existence of a final judgment and the filing of a proper petition for postconviction relief, it logically follows that when the Supreme Court vacated appellant's sentence, its ruling also had the effect of nullifying all of the proceedings in regard to her original and amended postconviction petitions. This would include the trial court's judgment granting the state's motion to dismiss appellant's two petitions. Hence, this court ultimately concludes that the instant appeal is no longer properly before us because the appealed judgment is not a final appealable order at this time."

• 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. Robert Young, NO. 29,467 (N.M. 10/25/2007)   "Defense counsels’ compensation is inadequate under the facts of this case, violating defendants’ Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases." (Note: no date is listed on the slip op.)

• People v. John Taylor, 2007 N.Y. LEXIS 2916 (NY 10/23/2007) Taylor was sentenced under a facially unconstitutional statute, and “it is not within our power to save the statute.. . . The Legislature, mindful of our State’s due process protections, may reenact a sentencing statute that is free of coercion and cognizant of a jury’s need to know the consequences of its choice.”

• Daniel Lee Siebert v. Allen, 2007 U.S. App. LEXIS 24802 (11th 10/24/2007) Stay granted in light of Baze v. Rees (Note: En banc the stay & opinion  was subsequently vacated, then sua sponte the en banc Court reinstated the stay.

• Curtis Osborne. Osborne v. Hall, S08W0267 (GA 10/22/2007) Stay granted in light of Baze v. Rees

• Earl Wesley Berry v. Epps,  2007 U.S. App. LEXIS 25219 (5th Cir 10/26/2007) Despite the Supreme Court's grant of cert in Baze v. Rees, "[w]ell-established fifth circuit [sic] precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a State’s method of carrying it out. Such claims are dilatory and should be dismissed."

• Arthur Barnhill v. State,  2007 Fla. LEXIS 1954 (FL 10/25/2007) Relief denied on postconviction appeal/habeas corpus, relating to: "(1) various allegations of ineffective assistance of counsel; 2) whether rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar and Florida Rule of Criminal Procedure 3.575 violate his constitutional right of equal protection and deny him adequate assistance of counsel; 3) whether lethal injection is cruel and unusual punishment; 4) erroneous jury instructions; 5) cumulative errors; and 6) his incompetency at time of execution." [via Findlaw]
  

• Errol Duke Moses v. Branker, 2007 U.S. App. LEXIS 24750 (4th Cir 10/23/2007) "Moses claims that his trial counsel failed to investigate readily available mitigation evidence. The district court denied the petition, and we affirm. The ineffective assistance claim advanced in the federal petition was not exhausted in state court, and Moses has not established the cause necessary to excuse the procedural default."
  

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

• 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. Via HAT's WAG: