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.

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.

• 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. CapDefNet has more

• 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." CapDefNet has more


• 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. CapDefNet has more

• 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."

  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.

• 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.

(Initial List for the Week of February 4, 2008) –  In Favor of the Accused or Condemned

• United States v. Humberto Pepin,  2008 U.S. App. LEXIS 2553 (2nd Cir 2/6/2008) A pretrial capital case from the federal Eastern District of New York, the Government appeals to the Second Circuit certain evidentiary rulings. Specifically, the Government sought relief from the trial court’s exclusion of evidence of child abuse by the defendant and evidence relating to the defendant’s previous conviction for child endangerment, as well as the trial court’s exclusion of evidence of post-mortem dismemberment of the victims in both the guilt and penalty phases of the trial.  The panel affirms the exclusion of the child abuse evidence, but remands on evidence of post-mortem dismemberment

• Ex parte Jose Angel Moreno, 2008 Tex. Crim. App. LEXIS 158 (Tex. Crim. App.  2/6/2008)  The Texas Court of Criminal Appeals on its own motion grants penalty phase relief . The Moreno Court grants relief in light of Penry error. Specifically, the CCA grants rehearing and vacates as the jury instructions used in the trial did not permit the jury to give adequate effect to Moreno’s troubled childhood within the framework of the Texas Special Question regime. Further, the trial court erred in failing to give a jury instruction that would have permitted the jury to impose a life sentence on the basis of the Defendant’s mitigation case alone.
  

• State v.  Raymond Mata, No. S-05-1268, ___N.W.2d___(Neb 2/8/2008) Relief denied on numerous claims relating to resentencing following a Ring remand including a possible "cert worthy" issue on hybrid sentencing (jury found aggravating factors, three judge panel set punishment).  The Nebraska Supreme Court, more importantly strikes down the sole means of execution in that state, the electric chair.  As a practical matter this means that in Nebraska people can still be sentenced to death but not executed.

• Ex parte Ricky Eugene Kerr, No. AP-75,500 (Tex. Crim. App.  2/6/2008) Remand ordered for further hearings on the issue of penalty phase ineffectiveness. (Note: The CCA's opinion is ambiguous enough as to the  trial court's treatment of Kerr's claims on these points that a real possibility exists the above analysis is incorrect.)
  

• Richard Raymond Ramirez v. Ayers, CV-91-3802-CBM (C.D. Cal.) Relief granted as the jury foreman affirmatively misrepresented his pending FBI application for employment during voir dire.

(Initial List for the Week of  February 4, 2008) –  In Favor of the State or Government

• Darwin Brown v. Sirmon, 2008 U.S. App. LEXIS 2543 (10th Cir 2/5/2008) The grounds on which relief was denied include: "“(1) the use of dual juries constituted structural error; (2) the trial court conducted improper voir dire by excusing improperly for cause six jurors whose views on the death penalty would not substantially impair their ability to consider all punishment options; (3) the introduction of evidence arising out of Mr. Brown’s warrantless arrest violated his 4th, 8th, and 14th Amendment rights;(4) Mr. Brown’s convictions and death sentence were the product of a fundamentally unfair adjudicatory process infused with prosecutorial misconduct and unfairly prejudicial photographic evidence in violation of the 8th and 14th Amendments; (5) the trial court committed constitutional error in denying his requested jury instructions on non-capital offenses; (6) the State introduced insufficient evidence to support the “especially heinous, atrocious, or cruel” aggravating factor in violation of his rights under the 8th and 14th Amendments, and the aggravator itself is unconstitutional; (7) the “continuing threat” aggravating circumstance is unconstitutional and was not supported by the evidence; (8) the “avoid arrest” aggravating circumstance was applied in an unconstitutional manner; (9) victim impact evidence violated his 8th and 14th Amendment rights; and (10) cumulative error.”

• People v. Alphonso Howard,  2008 Cal. LEXIS 1194 (Cal 2/4/2008) (concurrence) Relief denied on a litany of issues, however, most notably, on the standards for Batson/Wheeler claims (peremptory challenges) when, despite the defense not meeting the threshold showing for such a claim,  the prosecution nonetheless offers a purported justification for the challenges.  Other claims include those concerning: (1) use of color autopsy photographs, (2) motive instruction, (3) consciousness of guilt instruction, (4) murder instructions, (5) lesser included offenses instruction, (6) reasonable doubt instruction, (7) evidence of other crimes, (8) alleged coercion of deadlocked jury, (9) constitutionality of death penalty statute, (10) flight instruction, (11) accomplice testimony, and (12) notice of aggravating evidence.

• People v. Spencer Rawlins Brasure, 2008 Cal. LEXIS 1412 (Cal 2/7/2008) [via Findlaw] "A conviction and death sentence for kidnapping and torture murder is affirmed on automatic appeal over claims of error regarding: 1) group voir dire on attitudes toward the death penalty; 2) introduction of crime scene and autopsy photographs; 3) instructions regarding accomplices' and defendant's role in causing death; 4) a felony-murder instruction; 5) standard instructions on jury's consideration of evidence; 6) Griffin error; 7) instruction on weighing aggravating and mitigating circumstances; 8) challenges to the death penalty statute; 9) instruction on mitigating circumstances; 10) a refusal of special instructions on mitigating circumstances; 11) juror misconduct; 12) international norms and the Eighth Amendment; 13) international law; 14) direction to disregard guilt phase instructions; 15) cumulative prejudice; 16) a victim restitution order and parole revocation restitution fine."

• Samuel Jason Derrick v. State, 2008 Fla. LEXIS 142 (FL 2/7/2008)  Relief denied on claims relating to whether: “(1) he was denied access to files and records pertaining to his case in violation of his constitutional rights; (2) he received ineffective assistance of counsel during pretrial and at the guilt phase; (3) the State withheld material and exculpatory evidence or presented misleading evidence or both; (4) he received ineffective assistance of counsel during the penalty phase; (5) resentencing counsel was ineffective for failing to obtain a mental health expert; and (6) he was deprived of a fundamentally fair trial because of the cumulative error present during the proceedings."
  

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SUBSCRIBING & ARCHIVES: The summaries above are normally written by Karl Keys and published forty (40) times (or so) a year.

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