Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/071104.htm]

Leading off the edition is Judge Posner's Seventh Circuit opinion in Eric Holmes v. Buss.  The district court found Holmes competent to proceed with the instant habeas proceeding without affording opportunity to cross-examine the State's expert.  Remanding for further hearings and finding, the panel holds the district court needs to examine both whether Holmes is now competent and whether he has been continuously competent during the course of the proceedings, including reexamining a prior 2003 ruling on the subject.

The Sixth Circuit in Alfred Morales v. Mitchell revisits a well worn path to relief, trial counsel's penalty phase performance. "The right to the effective assistance of counsel applies to the investigation stage of a case." "[T]he social history report, records, and testimony proffered by Morales’s habeas counsel demonstrate conclusively that Morales’s trial attorney failed adequately to investigate and, thus, was unable to present to the jury compelling mitigating evidence that was readily available at the time of trial."  "Because the net effect of the undiscovered and unpresented evidence, viewed cumulatively and in light of the totality of the circumstances, demonstrates the existence of significant mitigating evidence that favored Morales, it is reasonably probable that at least one juror hearing that evidence would have been persuaded to impose a life, rather than a death, sentence"

Finally, the Louisiana Supreme Court in State v. Robert Coleman vacates in light of Batson.  Appellant is black and in striking a black juror the trial prosecutor noted: "[t]here is a black defendant in this case. There are white victims."  "Here, the explicit interjection of race, without further explanation, renders implausible any explanation other than that the decision to strike this prospective juror was not race-neutral, but was based specifically on the juror’s race, in violation of the fundamental precepts of Batson and its progeny."

Eighteen former death row inmates who were wrongly convicted and later freed based on innocence, recently toured North Carolina calling for a moratorium on executions in the state.  New Jersey Assembly Speaker Joseph Roberts, Jr. has announced that on December 13 members of the Assembly will vote on whether to reduce the state's most severe punishment to life in prison without parole; more in coming weeks & the daily blog will focus on what you can do to be part of the first legislative-only roll back of the death penalty in over a decade.. DPIC has gathered an excellent guide to the issues surrounding the costs of capital trials and how, of late, its recent impact.  Troy Davis will get a chance Tuesday to press for a new trial before the Georgia Supreme Court.

Looking ahead, only one opinion -- so far -- has been found to be both favorable and notable.  The Mississippi Supreme Court in Fred Spicer, Jr. v. State remands  for an evidentiary hearing on trial counsel's "failure to investigate and introduce mitigation evidence of Spicer’s 'social history'."

As always thanks for reading. - k

Execution information

Due to the near unanimity of thought on the subject,  we are no longer listing execution dates scheduled before February 15, 2008 as probable in light of Baze v. Rees and have suspended the Weekly's "pending execution"  data until then.

SCOTUS

Richard Allen v. Seibert, 2007 U.S. LEXIS 12076 (11/5/2007) Petitioner not entitled to tolling of AEDPA's one-year statute of limitations, because his petition for state postconviction relief was not "properly filed" under 28 U.S.C.S. § 2244(d)(2) since his petition for state postconviction relief was rejected as untimely under Ala. R. Crim. P. 32.2(c) by the state courts.

Week of  October 29, 2007 –  In Favor of Life or Liberty

  • Alfred Morales v. Mitchell, 2007 U.S. App. LEXIS 25582 (6th Cir 11/2/2007) Death sentence vacated in light of ineffective assistance of counsel in the penalty phase. “In sum, the social history report, records, and testimony proffered by Morales’s habeas counsel demonstrate conclusively that Morales’s trial attorney failed adequately to investigate and, thus, was unable to present to the jury compelling mitigating evidence that was readily available at the time of trial.”
  • Eric Holmes v. Buss, 2007 U.S. App. LEXIS 25361 (7th Cir 10/30/2007) Remand ordered to determine competency for purposes to proceed with federal habeas corpus litigation. (oral argument)
  • Jerry Jones v. State, 2007 Ga. LEXIS 795 (Ga 10/29/2007) Interim review granted prior to the penalty phase.  Suppression ordered for all items not in plain view.  Failure to include in the indictment the aggravating circumstances that under state law qualify him for the death penalty was not error.
  • State v. Robert Coleman, 2007 La. LEXIS 2392 (LA 11/2/2007) “[T]he State’s articulated reasons with respect to the peremptory strike of prospective juror, Mason Miller was entirely pretextual and inadequate. We conclude that the manner in which the State exercised its peremptory challenges in this case, based on race, resulted in a violation of defendant’s constitutional rights and find this error raises serious federal constitutional equal protection issues affecting the rights of both the defendant and the excused venire-member. This error is a structural one, affecting the framework within which the trial proceeded."
  • William Gollehon v. Mahoney, 2007 U.S. App. LEXIS 25269 (9th Cir 10/25/2007) (unpublished) Habeas relief denied on claims relating to whether use of a death qualified jury at the guilt phase where the jury played no role in sentencing procedures; discussion of potential penalties with the jury; double jeopardy as to homicide by accountability;  and Brady related claims.  Remand ordered  on fair notice / rule of lenity related claim.

Week of  October 29, 2007 –  In Favor of Death

  • Jesse Cummings v. Sirmon, 2007 U.S. App. LEXIS 25417 (10th Cir 10/30/2007) Relief denied on claims relating to: “1) ineffective assistance of trial and appellate counsel; 2) admission of uncorroborated testimony of accomplices; 3) misjoinder; and 4) the refusal of the trial court to instruct the jury on the credibility of accomplice testimony/” [via Findlaw]
  • Jonathan Lawrence v. State, 2007 Fla. LEXIS 2012 (FL  11/1/2007) Relief denied on “eight claims: (1) his constitutional rights were violated because his guilty plea was not knowing and voluntary; (2) his convictions and death sentence are unreliable because no adversarial testing occurred during the pretrial and guilt-phase proceedings due to the ineffective assistance of his counsel; (3) his sentence is unreliable because inadequate testing occurred during the penalty phase due to ineffective assistance of counsel; (4) the Florida death penalty sentencing statute is unconstitutional as applied; (5) Lawrence’s constitutional rights were violated because he was denied the opportunity to interview jurors; (6) execution by electrocution or lethal injection is cruel or unusual punishment; (7) Lawrence may be incompetent at the time of execution; and (8) the cumulative effect of the procedural and substantive errors deprived Lawrence of a fundamentally fair trial.”
  • Ian Lightbourne v. McCollum, 2007 Fla. LEXIS 2013 (FL 11/1/2007)   “Lightbourne has failed to show that Florida’s current lethal injection procedures, as actually administered through the DOC, are constitutionally defective in violation of the Eighth Amendment of the United States Constitution.”
  • Mark Schwab v. State, 2007 Fla. LEXIS 2011 (FL  11/1/2007) Relief denied on appeal in this second postconviction petition (with an execution date) on claims relating to: “(1) Florida’s lethal injection method of execution violates the Eighth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Florida Constitution; and (2) newly discovered evidence reveals that Schwab suffers from neurological brain impairment, which makes his sentence of death constitutionally unreliable.”

  • Michael Jerome Lewis v. State, 2007 Ala. Crim. App. LEXIS 201 (Ala. Crim. App. 11/2/2007) On return from remand, relief most notably denied on Batson claims as the State's rationale, following the remanded proceedings, was race neutral.

  • Larry Bill Elliott v. Warden, 2007 Va. LEXIS 137 (Va 11/2/2007) Relief denied on claims relating to: "[in]effective assistance of counsel during the guilt phase of his trial because counsel failed to adequately investigate and prepare for trial;" "[in]effective assistance of counsel during the guilt phase of his trial because counsel failed to object;" "[in]effective assistance of counsel during the penalty phase because counsel failed to reassert motions raised in the first trial concerning  the penalty phase, thus denying petitioner an opportunity to appeal these issues;" "[in]effective assistance of counsel during the penalty phase because counsel failed to object to improper and prejudicial victim impact testimony;" "[in]effective assistance of counsel during the penalty phase because counsel failed to adequately develop and present mitigation evidence;" the appellate "should grant an evidentiary hearing on whether the jury had requested an instruction on reasonable doubt;" "[in]effective assistance of counsel on appeal because counsel failed to assign error to the trial court's ruling which allowed the Commonwealth to make an argument on future dangerousness and on the Commonwealth's improper argument regarding victim impact testimony;" "[in]effective assistance of counsel on appeal because counsel requested the wrong relief when counsel requested an evidentiary hearing instead of asking the Court to reverse his conviction on the basis of an alleged unanswered jury question found in the record;" "[in]effective assistance of counsel on appeal;" and cumulative error.

Week of  October 29, 2007 –  Other

  • State v. Hon. Silvia Arellano, 2007 Ariz. LEXIS 136  (Az 11/2/2007)  The trial court disqualified a special assistant attorney general from representing the State as she would be required to testify at the  post-conviction evidentiary hearing.  "We are confident that the experienced superior court judge will not be affected in her evaluation of Ms. Hughes' testimony by the fact that she has subsequently acted as counsel for the State in this matter and we can perceive no prejudice to the defendants from Ms. Hughes' participation in these proceedings as counsel for the State after the completion of her testimony."
  • David Autry v. State, 2007 Okla. Crim. App. LEXIS 40 (Okla Crim App 11/2/2007)  Contempt action arising from a capital retrial that ended in a mistrial.   The trial court excluded mention of certain potentially exculpatory evidence pretrial.  Counsel indicated that he believed the trial court was erroneous (and the  OCCA suggests in dicta the trial court was indeed wrong).  Counsel then mentions the evidence in opening, later claiming the State opened the door.  Even if  the trial court was wrong, counsel still had an obligation to follow that order.  $500 fine affirmed, costs above that for jurors dismissed as not authorized by statute.
  • Ellis Louis Mashburn, Jr. v. State, 2007 Ala. Crim. App. LEXIS 199 (Ala Crim App 11/2/2007) Remand ordered as “the trial court’s written sentencing order does not comply with the requirements of § 13A-5-47(d), Ala. Code 1975.”
  • Stanley Stephens v. State, 2007 Ala. Crim. App. LEXIS 186 (Ala. Crim. App. 11/2/2007)  On return from remand. LWOP plea agreement affirmed.

(Advance Sheet Week of  November 4, 2007) –  In Favor of Life or Liberty
  • Fred Spicer, Jr. v. State, 2007 Miss. LEXIS 619  (Miss 11/8/2007) "Spicer should be granted leave to proceed in the trial court for an evidentiary hearing, limited to Spicer’s allegation that his attorneys were ineffective during the penalty phase of the trial for failure to investigate and introduce mitigation evidence of Spicer’s 'social history'."
(Advance Sheet Week of  November 4, 2007) –  In Favor of Death

  • George Hodges v. Attorney General of Florida, 2007 U.S. App. LEXIS 26138 (11th Cir 11/9/2007)   Relief denied on claims relating to admissibility of hearsay evidence in the penalty phase in light of the Confrontation Clause and "his constitutional right to be present at all the critical stages of his trial was violated because he was absent from the courtroom at the end of the jury phase of the sentence stage." On a claim for which a COA was not issued that panel holds a panel cannot use its "Rule 27-1(g) power to overrule [an] order denying a COA on Ground II, grant a certificate on that ground, and proceed to decide the matter on the merits as though the COA order had permitted it all along."

  • In Re: Mark Dean Schwab, 07-15258 (11th Cir 11/7/2007) Habeas petition asserting lethal injection challenges deemed successive.

  • Calvin Letroy Hunter v. State, 2007 Tex. Crim. App. LEXIS 1557 (Tex. Crim. App. 11/7/2007) Relief denied on: (1) a substantial mental retardation claim; (2) entitlement "to a pretrial determination of mental retardation;"  (3) failure to provide a definition of "society" within the future-dangerousness special issue; (4) sufficiency of the evidence supporting the jury's determination regarding future dangerousness; (5) declining to instruct the jury at punishment that they could consider evidence of appellant's extraneous offenses only if they found beyond a reasonable doubt that he committed those offenses; and (6) arbitrariness of the Texas special questions regime.

  • James Rogers v. State , 2007 Ga. LEXIS 838 (Ga 11/5/2007) Relief denied, most notably, that although some tests showed the defendant is mentally retarded, the six tests administered, as a whole, support a finding that Rogers, in fact, is not retarded. "“Expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, do not indicate mental retardation."

  • State v. Zola Agona Azania, 2007 Ind. LEXIS 997 (Ind 11/7/2007)  Having previously twice vacated Azania's death sentence, the Court now holds "Azania should be re-sentenced under the post-2002 death penalty statute, but without the availability of LWOP."

  • Benjamin Ritchie v. State, 2007 Ind. LEXIS 996 (Ind 11/8/2007)  Nonprocedurally barred issued denied relief include:"(1) whether Ritchie was denied the effective assistance of trial counsel; (2) whether Ritchie was denied the effective assistance of appellate counsel; and (3) whether he received a fair post-conviction hearing."  Barred issues appear to include: " (1) the trial court improperly instructed the jury that he was eligible for a sentence ranging between forty-five and seventy-five years, but the actual range was forty-five to ninety-four years; (2) the trial court erroneously gave the jury a special verdict form on the weighing element; and (3) the trial court failed to issue a written sentencing order."

  • State v. Christopher Goss, 2007 N.C. LEXIS 1106 (NC 11/9/2007)  Relief denied on various claims including: "reopening of voir ire of two prospective jurors based upon the trial court's finding that both had provided incorrect statements in response to the State's initial voir dire questioning;" the "trial court barring [Goss ]from consulting with counsel during his mid-trial psychiatric evaluation by the State's mental health expert; "[in]effective assistance of counsel were denied when defense counsel stated in closing arguments that '[defendant's] statement alone guarantees he'll serve a substantial amount of time in prison and face the terrible consequences of a first degree murder conviction'." and "the trial court should have intervened ex mero motu during the State's closing argument."


Selected Excerpts from, & Commentary on, this Edition's Cases
 [Note formatting may be off below this point.]
Alfred Morales v. Mitchell, 2007 U.S. App. LEXIS 25582 (6th Cir 11/2/2007) Death sentence vacated in light of ineffective assistance of counsel in the penalty phase. “In sum, the social history report, records, and testimony proffered by Morales’s habeas counsel demonstrate conclusively that Morales’s trial attorney failed adequately to investigate and, thus, was unable to present to the jury compelling mitigating evidence that was readily available at the time of trial.”  CapDefNet notes:**

On November 2, 2007, the Sixth Circuit (Moore with Clay; dissent by Suhrheinrich) affirmed the district court's grant of habeas relief to Alfred Morales on a claim of ineffective assistance of counsel (IAC) at sentencing and the denial of other claims. Morales v. Mitchell, ___ F.3d ___, 2007 WL 3225397 (6th Cir. Nov. 2, 2007). Regarding the sentencing phase IAC claim, the state court ruled that counsel made a permissible strategic decision to present mitigating evidence during the guilt-innocence phase of the trial where counsel offered a mental state defense to the capital crime based primarily on intoxication. The panel majority agreed with the district court that the state court's decision involved an unreasonable application of Strickland given trial counsel's inadequate investigation. The sole family member who was contacted by trial counsel was Morales's father. Trial counsel spoke with him for only ten minutes before the father testified at the guilt phase. Had he been interviewed in connection with the sentencing phase, he would have revealed a family history of alcohol abuse, that Morales was forced to protect his mentally impaired older brother, that Morales was neglected due to his father's heavy drinking, and that Morales had sought, but was denied, treatment for his alcoholism when he was previously incarcerated. Other family members were available to corroborate this and other background information and to discuss the pressures placed on Morales to drink alcohol as a way of showing manliness. A former principal could also have told the jury his opinion that Morales was the victim of an inadequate home environment which lacked stability. Notably, documentary evidence existed to support all of the points Morales claimed should have been raised in mitigation. The only evidence actually offered at the sentencing phase was Morales's unsworn statement. Although he revealed such things as his sister's death when he was nine, the jury did not learn that the sister suffered from an emotional disturbance and had committed suicide, information counsel would have obtained had family members been interviewed. Similarly, Morales spoke of being abused by his brother but did not tell the jury that his brother was mentally retarded and had been hospitalized in a psychiatric institution for his violent behavior. While Morales discussed his own alcohol abuse, the jury was not provided with information about the extensive family history of alcoholism and the pressure placed on Native American boys to drink by older men in the community. That some negative facts would have come out had mitigation witnesses been called did not undermine the IAC claim given that the jury already knew much of the same information. The panel went on to find that Morales was prejudiced by counsel's deficient performance, a determination that was made de novo because the prejudice prong of the Strickland test was not considered by the state court.

The panel agreed with the district court that defense counsel did not perform deficiently in the guilt phase of the trial by calling a certain expert witness where the bulk of her testimony was helpful to the defense and her one unhelpful comment was improperly admitted over defense objection. As for defense counsel's failure to obtain medical records showing possible neurological problems, even assuming counsel performed deficiently Morales failed to establish prejudice. The panel explained: 'Morales's new evidence, which ' at best ' indicates that he might suffer from some unidentified and unproven organic brain dysfunction, is insufficient to demonstrate that trial counsel's allegedly deficient performance prejudiced his case.' Further, the panel found that Morales exaggerated when he alleged that the trial expert's testimony would have been dramatically different had she known of the possible neurological problems.

Finally, looking primarily to Uttecht v. Brown127 S.Ct. 2218 (2007), the panel affirmed the denial of Morales's claim that the trial court committed Witherspoon/Witt error by striking a juror for cause.

Judge Suhrheinrich dissented from the grant of relief, arguing that the new mitigating evidence presented by Morales in post-conviction proceedings was cumulative to what the jury heard during the guilt-innocence and sentencing phases of the trial and, therefore, Morales failed to establish prejudice. No prejudice could be found, according to Judge Suhrheinrich, for the additional reason that presentation of the new evidence would have opened the door to damaging rebuttal evidence concerning instances of violence and cruelty, and an allegation of rape.

Eric Holmes v. Buss, 2007 U.S. App. LEXIS 25361 (7th Cir 10/30/2007) Remand ordered to determine competency for purposes to proceed with federal habeas corpus litigation. (oral argument) CapDefNet notes:**

On October 30, 2007, the Seventh Circuit (Posner with Flaum and Wood) remanded for a second time for further proceedings regarding federal habeas petitioner Eric Holmes's competence. Holmes v. Buss, ___ F.3d ___, 2007 WL 3146378 (7th Cir. Oct. 30, 2007). (The first remand was found necessary because of evidence that Holmes's mental condition had deteriorated since the district court's finding that Holmes was competent.) The panel began by noting that it '[a]s a matter of first impression, we might doubt the legal significance of a person´s lacking the mental competence to prosecute, or to assist his lawyer in prosecuting, a federal habeas corpus proceeding.' However, in Rohan ex rel. Gates v. Woodford 334 F.3d 803 (9th Cir .2003), the Ninth Circuit held that in a capital case a petitioner for federal habeas corpus must be competent to assist his counsel; if not, the proceeding must be stayed. The panel ultimately found that it was not disposed to reject Rohan, 'thereby creating an intercircuit conflict, when the State of Indiana has declined to challenge it and as a result its validity has throughout these proceedings been assumed rather than litigated.' As for what the proper test for competence should be, the panel stated: 'Whatever the nature of the proceeding, the test should be whether the defendant (petitioner, appellant, etc.) is competent to play whatever role in relation to his case is necessary to enable it to be adequately presented.' Turning to the proceedings at issue, the panel observed that '[f]ederal habeas corpus happens to be one of the most complex areas of American law' and so '[w]ith respect to many of the issues that arise in habeas corpus cases, a lay person has nothing to contribute to his lawyer´s strategy.' It then pointed out, however, that this 'can be different with respect to other issues, several presented in this case, notably prosecutorial misconduct at trial and ineffective assistance by trial counsel. The petitioner was at his trial; his current lawyers were not. He may-if mentally competent-be able to convey to his lawyers a better sense of the alleged misbehavior of the prosecutor and of defense counsel than the trial transcript and other documentation provide.' While the first remand order had required only a ruling on Holmes's competence to appeal from the district court's denial of habeas relief, the actual appeal also challenged his competence to have proceeded in the district court in the first instance. In order to 'minimize the further protraction of the case,' the panel considered the issues together. The panel concluded that the district court erred in finding Holmes competent without permitting Holmes's federal habeas attorneys the opportunity to cross-examine respondent's expert. In remanding, the panel noted that should the district court conclude that Holmes is presently incompetent in regard to prosecuting the appeal, it might want to reexamine its April 2003 ruling that Holmes was competent to participate in the earlier stages of the habeas corpus proceedings. This was so 'since the petitioner´s role in assisting counsel would be larger in the district court than in the court of appeals . . ..'

State v. Robert Coleman, 2007 La. LEXIS 2392 (LA 11/2/2007) “[T]he State’s articulated reasons with respect to the peremptory strike of prospective juror, Mason Miller was entirely pretextual and inadequate. We conclude that the manner in which the State exercised its peremptory challenges in this case, based on race, resulted in a violation of defendant’s constitutional rights and find this error raises serious federal constitutional equal protection issues affecting the rights of both the defendant and the excused venire-member. This error is a structural one, affecting the framework within which the trial proceeded.  CapDefNet notes:**

On November 2, 2007, the Louisiana Supreme Court vacated Robert Coleman's capital conviction and death sentence after finding that the prosecutor's proffered reason for excusing an African-American prospective juror was not facially race-neutral. State v. Coleman, ___ So.2d ___, 2007 WL 3226870 (La. Nov. 2, 2007). Although the trial court had ruled that Coleman failed to make out a prima facie case of discrimination, in nevertheless went on to evaluate the reasons proffered by the prosecution for its challenges to six of the eight African-American prospective jurors, ultimately concluding that no purposeful discrimination occurred. Under such circumstances, the Louisiana Supreme Court ruled that the question of whether a prima facie case had in fact been made was moot. The court resolved Coleman's Batson claim based on the removal of a single juror. The prosecutor's explanation for the challenge included the following: 'Mr. Miller has filed a lawsuit against the city alleging institutional discrimination. Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims.' The Louisiana Supreme Court observed that 'a prospective juror´s preoccupation with ongoing litigation has been deemed a race-neutral explanation supporting a peremptory strike.' Here, however, 'there was no attempt by the State to explain how bias might operate from the mere existence of this lawsuit' and 'Miller was never questioned about the impact the lawsuit would have on his ability to serve as a juror.' Moreover, the prosecutor's very next statement injected the issue of race, 'undercutting the acceptable 'ongoing litigation' explanation and suggesting that the reasons for striking Miller were in fact race-related.' That the prosecutor went on to articulate additional non-racial reasons for the strike did not save the challenge. Rather, the court found: 'Once an inappropriate explanation invoking racial considerations is made, a subsequent, valid reason for exercising the peremptory challenge cannot purge the racial taint.' Justice Knoll dissented.

SMALL PRINT
SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year.

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*Execution information derived from Rick Halperin, DPIC & media accounts
**Week at a Glance is the work of the Habeas Assistant & Training Project & Wendy Peoples.