[Available at http://capitaldefenseweekly.com/archives/080128.htm]

One opinion of note is had this edition. The Ninth Circuit in Earl Lloyd Jackson v. Brown upholds the district court's grant of relief as to Brown's death sentence and the special circumstances findings. The district court granted relief on the basis of its finding that the State presented false testimony regarding whether jailhouse snitches received benefits for testifying against Jackson. The state conceded the grant of capital relief, but argued unsuccessfully  to get the special circumstances reinstated in light of the suppression of favorable evidence, including that the prosecutors at trial didn't know of the perjured testimony, as well as an odd argument that Teague bars relief under these circumstances as, it asserts,  Kyles v. Whitley is not retroactively applicable.

In Supreme Court developments, the Court granted a stay of execution in James Callahan v. Allen.  The stay comes just three short weeks after the Court heard arguments in Baze v. Rees.  The stay caps a rather odd move by the Eleventh Circuit to lift a previously imposed stay in James Callahan v. Allen.  The Court has not permitted an execution to occur since the day after it granted cert in Baze in September 2007.

In the news, DPIC notes, that 'at recent Congressional hearings, members of the Senate Judiciary Committee questioned the Department of Justice as to why it has not approved any grants under the Kirk Bloodsworth DNA Post-Conviction Testing Program." From the Atlanta Journal-Constitution, “the trial judge in the beleaguered death penalty case of Fulton County Courthouse rampage suspect Brian Nichols announced Wednesday he is removing himself from the case.” Also from the AJC, in Georgia's Pike County prosecutors succeeded in getting defense attorneys changed lawyers say. Attempts in New Hampshire are under way, in light of the resumption of capital prosecutions in that state to broaden the reach of that State’s death penalty. Finally, on January 14, 2008, the New England Journal of Medicine hosted a videotaped round table discussion of the issues raised by Baze v. Rees.

Looking ahead, the Florida Supreme Court in Ryan Thomas Green v. State grants relief on proportionality grounds in light of the overwhelming mitigation evidence present and the presence of just one aggravator.  The South Carolina Supreme Court holds in State v. Luzenski Cottrell that the trial court erred in refusing a requested that the "jury be charged voluntary manslaughter as a lesser offense of murder." In Kentucky, a battle over funding in Benny Lee Hodge & Roger Epperson v. Hon. Coleman results in mandamus being granted, a long standing precedent being overturned, and, apparently for the first time, the Commonwealth's indigent defense statute being held to require certain necessary postconviction litigation expense. As if it were Kentucky indigent defense week, one of that state's most infamous cases regarding the provision of counsel (or more aptly the failure to provide adequate counsel), Gregory Wilson v. Parker, was resolved before the Sixth Circuit with a less than happy ending. Finally, I should note there is a major noncapital ethics decision from the South Carolina Supreme Court, In the Matter of O. Lee Sturkey concerning heavy caseloads, public defenders, the ethics rules & the reality that the RPCs always apply.

As always thanks for reading. - k

List for the Week of  January 21, 2008 –  In Favor of the Accused or Condemned
  • Earl Lloyd Jackson v. Brown, 2008 U.S. App. LEXIS 1266 (9th Cir 1/23/2008) “'A promise made is a debt unpaid.' The state’s promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind. The district court grants partial relief, upholding the convictions (two elderly women murdered) but vacates and remands the death sentence and the special circumstances findings. The state concedes the death reversal, but argues for special circumstances. The 9th affirms district court, allowing the vacation to stand because of the <Brady implications and prejudice. The 9th rejects relief on petitioner’s claims. There is an interesting discussion on prisoner clothes. The petitioner wore prison garb at trial. The 9th acknowledges that being forced to wear inmate clothing is unconstitutional, but the Supremes require an objection to be made. Petitioner argued here that court-appointed counsel should not be forced to object, and that he is in effect a state actor. “The clothes make the man.” The 9th rejected the claim, requiring the objection, and opining that it was a tactical choice by counsel." [via the Ninth Circuit blog]
List for the Week of  January 21, 2008 –  In Favor of the State or Government
  • Henry Fahy v. Horn, 2008 U.S. App. LEXIS 1342 (3rd Cir 1/24/2008) "The matter will be remanded to the District Court. On remand, the District Court should apply Teague in conjunction with Beard and deny relief on the Mills claim. The District Court should consider whether trial and appellate counsel were ineffective for failing to object to and litigate the Mills violation. The Court should consider the remaining sentencing-phase issues, which it initially denied as moot. The Court’s determination that the guilt phase issues do not warrant habeas relief will be affirmed."
  • Roy Gene Smith v. Quarterman, 2008 U.S. App. LEXIS 1324 (5th Cir 1/23/2008)"We granted Smith a certificate of appealability (“COA”) on two issues: (1) whether trial counsel provided ineffective representation; and (2) whether the jury instructions given at the sentencing phase of his trial violated his constitutional rights pursuant to Penry v. Johnson." IAC specifically includes claims counsel: "should have introduced records demonstrating his good behavior during previous periods of incarceration, sought a psychiatric evaluation to determine the detrimental affects of his longterm substance abuse, and interviewed more of his family members about his childhood."
  • Denny Ross v. Petro, 2008 U.S. App. LEXIS 1422 (6th Cir. 1/25/2008) (dissent) On pretrial application for habeas corpus, relief denied on whether double jeopardy bars retrial following mistrial or whether a "manifest necessity for a mistrial existed."
  • John Fautenberry v. Mitchell, 2008 U.S. App. LEXIS 1435 (6th Cir. 1/25/2008) (dissent) Relief denied on eight claims, including, as the dissent explains, whether "[g]iven Fautenberry’s history of physical abuse, headaches, and significant head injuries, his counsel had an obligation to investigate fully a potential mitigation defense of an organic brain defect. This obligation did not diminish just because Fautenberry erected obstacles to his attorneys’ efforts. Had Fautenberry’s attorneys scrutinized the basis of their purported expert witness’s conclusion, they would have realized that they had not fully investigated the presence of brain damage as they were obligated to do. Instead, counsel were unaware of the limits of their witness’s testimony and repeatedly emphasized to the sentencing panel that their client had no mental deficiencies."
  • Reginald Brooks v. Bagley, 2008 U.S. App. LEXIS 1173 (6th Cir 1/ /2008)  Penalty phase relief  denied on IAC claims relating to: "namely that, during the two or so years before the murders, Brooks had practiced voodoo, accused his wife of having an incestuous relationship with their oldest son and refused to allow the same son to display his athletic trophies. The state courts rejected this claim in part because the sentencing court already had ample evidence of Brooks’ serious psychological illness and other manifestations of that illness in front of it. The district court rejected his federal habeas claim as well."
  • Mark Schwab v. State, 2008 Fla. LEXIS 55 (FL 1/24/2008) Relief denied 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."
  • Edward T. James v. State, 2008 Fla. LEXIS 53 (FL 1/24/2008) "The issue presented is whether the trial court properly denied reappointment of collateral counsel for James, a death row inmate, to resume postconviction proceedings after he had discharged collateral counsel and dismissed postconviction proceedings more than two and a half years prior to his motion."
  • Robin Row v. State, 2008 Ida. LEXIS 8  (Id 1/25/2008)   Successive postconviction petition dismissed as filed out of time as the basis of petition was available within the normal 42 day period for filing such petitions.
  • State v. James Dunn,  No. 07-KK-0878 (LA  1/25/2008)  Remand ordered for postconviction determination -- without a jury -- of whether the Defendant is mentally retarded within the meaning of Atkins v. Virginia.
  • Chelsea Lea Richardson v. State,  2008 Tex. Crim. App. Unpub. LEXIS 35  (Tex. Crim. App. 1/23/2008) (unpub) Relief denied on claims relating to sufficiency, admission o certain jailhouse snitch testimony, and the constitutionality of the Texas death penalty scheme (Ring, standard of proof as the special questions, lethal injection, & failure to adequately define terms, such as "probability," in the Texas special question scheme..
  • Taichin Preyor v. State, 2008 Tex. Crim. App. Unpub. LEXIS 50  (Tex. Crim. App. 1/23/2008) (unpub)  Relief denied on direct appeal on claims relating to Batson, admission of gruesome photos, legal sufficiency of "future dangerousness" findings, admission of prior convictions in the punishment phase, and instructions as to mitigation.
  • Ex parte Anthony Dewayne Doyle, 2008 Tex. Crim. App. Unpub. LEXIS 58  (Tex. Crim. App. 1/23/2008) (unpub) Application for postconviction relief denied without hearing.
  • Ex parte Vaughn Ross, 2008 Tex. Crim. App. Unpub. LEXIS 53 (Tex. Crim. App. 1/23/2008) (unpub) Application for postconviction relief denied without hearing.
(Initial List for the Week of  January 28, 2008) –  In Favor of the Accused or Condemned
  • Ryan Thomas Green v. State, 2008 Fla. LEXIS 135 (FL 1/31/2008) Relief on proportionality grounds granted in light of the overwhelming mitigation evidence and the presence of only one aggravator following the striking of the "avoid arrest aggravator."
  • State v. Luzenski Cottrell, 2008 S.C. LEXIS 22 (SC 1/28/2008) "[T]he trial court erred in refusing appellant's request that the jury be charged voluntary manslaughter as a lesser offense of murder. We [ ] reverse appellant's murder conviction and death sentence, and remand for further proceedings."
  • Benny Lee Hodge & Roger Epperson v. Hon. Coleman, 2008 Ky. LEXIS 14 (Ky 1/24/2008) Writ of mandamus granted and, overturning precedent,  indigent defense statute held to permit certain necessary postconviction litigation expenses.  Specifically, "the Letcher Circuit Court must approve travel-related reimbursement expenses for out-of-county witnesses called on behalf of Hodge or Epperson."
  • Crosley Green v. State, 2008 Fla. LEXIS 137 (FL 1/31/2008) On rehearing, making only minor corrections to prior holding that granted penalty phase relief on failure to investigate priors.
(Initial List for the Week of  January 28, 2008) –  In Favor of the State or Government
  • United States v. Shannon Agofsky,  2008 U.S. App. LEXIS 2236 (5th Cir 1/31/2008) Claims relating to inconsistent verdicts are barred in light of a prior panel's holding on the issue during a previous round of direct appeals.
  • Leroy Pooler v. State, 2008 Fla. LEXIS 136  (FL 1/31/2008) Relief denied on claims relating to whether "trial counsel was constitutionally ineffective for (1) failing to investigate and present a voluntary intoxication defense; (2) failing to investigate and present evidence of alcohol abuse or dependency in support of the impaired capacity mitigator; (3) failing to investigate and present Pooler’s school, military, and employment records in mitigation; and (4) failing to retain adequate mental health experts and provide them with the necessary background information to render competent opinions." Relief also denied on whether "the circuit court erred in summarily denying nine of his postconviction claims."
  • Gregory Wilson v. Parker,  2008 U.S. App. LEXIS 1902 (6th Cir. 1/29/2008)  In one of the more notorious ineffectiveness cases in recent memory, relief is denied.  Holding: (1) wanting a “competent” attorney (here counsel was the local drunk & his second chair an attorney just a few months out of law school) is the same as requesting to proceed pro se & going pro se, the panel holds,  waives any claims as to ineffective assistance of counsel; (2) appellate “ghost” counsel’s marriage to, and business partnership with, one of Wilson’s attorneys didn’t create a conflict of interest; (3) a defendant isn’t entitled to have a forum for raising claims that appellate counsel were ineffective; (4) Wilson’s co-defendant’s long-term relationship with one of the Circuit Court judges in the small county as the trial didn’t require recusal, even if the trial court new about the affair; and (5) the panel implicitly rejects that there are any minimum qualifications needed to represent a death eligible defendant.
  • Cecil Clayton v. Roper, 2008 U.S. App. LEXIS 2235 (8th Cir 2/1/2008) Relief denied on the four arguments Clayton raises "on appeal: (1) he claims that he has a right not to proceed in habeas if he is not presently competent, and the district court erred in denying this claim without holding a hearing to determine whether he is presently competent; (2) Clayton asserts that the prosecutor violated his due process rights with several comments he made during both the guilt and penalty phases of Clayton's trial; (3) Clayton challenges the jury instructions as a violation of the Due Process Clause; and (4) Clayton argues that the district court erred in refusing to grant him a hearing to determine if he is actually innocent."
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  • James Callahan v. Allen, 2008 U.S. App. LEXIS 1919 (11th Cir 1/29/2008) Lethal injection related stay lifted.  Supreme Court subsequently grants a stay.

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(Initial List for the Week of  January 28, 2008) –  Noncapital
  • Hardemon v. Quarterman, No. 06-20764 (5th Cir 1/30/2008) The prohibition against successive section 2254 petitions does not require a prisoner to challenge all judgments from a single court in a single habeas petition where separate judgments of convictions are entered.
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  • In the Matter of O. Lee Sturkey, No. 26426 (S.C. 1/28/2008) In a major ethics decision from the South Carolina Supreme Court concerning heavy caseloads, public defenders & the ethics rules, the Sturkey Court holds that crushing caseloads does not obviate the need to follow the RPCs. Long story short, counsel receives a nine-month suspension for not being able to keep up with the crush of a 700 file+ caseload a year.
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Other Perspectives
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Earl Lloyd Jackson v. Brown, 2008 U.S. App. LEXIS 1266 (9th Cir 1/23/2008) “'A promise made is a debt unpaid.' The state’s promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind. The district court grants partial relief, upholding the convictions (two elderly women murdered) but vacates and remands the death sentence and the special circumstances findings. The state concedes the death reversal, but argues for special circumstances. The 9th affirms district court, allowing the vacation to stand because of the Brady implications and prejudice. The 9th rejects relief on petitioner’s claims. There is an interesting discussion on prisoner clothes. The petitioner wore prison garb at trial. The 9th acknowledges that being forced to wear inmate clothing is unconstitutional, but the Supremes require an objection to be made. Petitioner argued here that court-appointed counsel should not be forced to object, and that he is in effect a state actor. “The clothes make the man.” The 9th rejected the claim, requiring the objection, and opining that it was a tactical choice by counsel." [via the Ninth Circuit blog].  CapDefNet has more on this and other cases. CapDefNet notes:
On January 23, 2008, the Ninth Circuit (Wardlaw, with Paez and Bybee) in a pre-AEDPA case affirmed the district court’s ruling that Napue violations required habeas relief as to the “special circumstances,” i.e., death eligibility factors. Jackson v. Brown, ___ F.3d ___, 2008 WL 185528 (9th Cir. Jan. 23, 2008). (In California, a finding of one or more statutory “special circumstances” elevates the possible punishment for first degree murder to life without possibility of parole or death.) The panel also affirmed the district court’s rejection of claims related to Jackson’s convictions. The district court’s separate finding that Jackson was entitled to habeas relief as to his death sentence was not appealed by the warden.

Under the law that existed at the time of the offenses, special circumstances required an intent to cause death. The two elderly victims in the case were beaten to death in separate burglaries committed by Jackson and others. At trial, the prosecution presented testimony from two jailhouse snitches who falsely denied receiving benefits for testifying against Jackson. They were the only witnesses who testified that Jackson admitted to personally sexually assaulting and killing victim Ott, for which a death sentence was imposed on Jackson. As to one of the snitches, the warden argued that the prosecutor was unaware of the benefits that had been promised to the snitch by law enforcement officers. The warden further contended that the rule extending the prosecutor’s duty to disclose to information known only by police was a new rule under Teague that Jackson could not benefit from because his conviction became final before the Supreme Court’s decision in Kyles v. Whitley. The panel disagreed, finding that a prosecutor’s duty to learn of promises made by any government agents preceded Kyles. In reaching this conclusion, the panel looked in part to its own case law and also found “instructive” that the California Supreme Court had rejected the same argument by the State when ruling on the claim. The panel also rejected the warden’s argument that it would require a new rule to apply Napue where the prosecutor was personally unaware of the falsity of the witness’s testimony. The panel found that “Napue and Giglio make perfectly clear that the constitutional prohibition on the ‘knowing’ use of perjured testimony applies when any of the State’s representatives would know the testimony was false.” Because the panel concluded “that the Napue violations themselves create a ‘reasonable likelihood that the false testimony could have affected’ the jury’s findings that Jackson acted with the intent to cause death,” it found it unnecessary to separately address whether materiality was shown under Brady for the suppressed evidence. That the jury might have inferred that Jackson had an intent to kill from other testimony did not preclude habeas relief given that the question was whether the snitch testimony could have affected the judgment of the jury.

Turning to Jackson’s cross-appeal, the panel first found that his claim that he was denied a fair trial under the Fourteenth Amendment by his trial attorney’s derogatory and racist remarks was barred by Teague. This was because the Fourteenth Amendment only protects against discrimination resulting from state action and the Supreme Court has held that public defenders do not act under color of state law when defending a client. Although the heading for the claim included reference to ineffective assistance of counsel, the body of the claim made only the due process argument and did not address the Strickland test. Therefore, the panel concluded no ineffective assistance of counsel claim had been properly raised and so it could not reach the merits of such a claim. Also Teague barred was Jackson’s claim of a due process violation resulting from his attorney essentially forcing him to appear at trial in jail clothing. Again, the acts of defense counsel are not considered state action. Regarding evidence about victim Ott having been sexually assaulted, the panel found that Jackson was not prejudiced by its admission, assuming without deciding that error had occurred. This was because the evidence of Jackson’s guilt was overwhelming. Jackson’s confrontation rights were not violated by the admission of prior testimony of a witness whose appearance at trial the prosecution had made a good-faith effort to obtain. His confrontation rights were violated, however by admission of a second witness’s prior testimony given the lack of diligence shown in securing that witness’s presence, but the constitutional error was harmless under Brecht. Finally, the panel found that the cumulative impact of all errors did not deprive Jackson of a fair trial as to the underlying convictions.
SMALL PRINT
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