Notable in this relatively light edition is the Supreme Court's decision in Virginia v. Moore. The holding in Moore is relatively straight forward: where a police officer violates state law in making an arrest and, during a search incident to that arrest, finds evidence of unlawful conduct, the Fourth Amendment is not offended.  Orin Kerr gives his thoughts on Virginia v. Moore.

In other SCOTUS news, the Court heard oral arguments in Giles v. California. University of Michigan Law School's Prof Richard Friedman reflects on the oral arguments in Giles, the SCOTUS’s latest examination of the Confrontation Clause & related post-Crawford issues like forfeiture by wrongdoing, here, here, here & here.  Long story short, the Court chose a poor in Giles to decide forfeiture by wrong-doing.  The oral argument transcript is here.

Looking ahead to the next edition one favorable published decision is noted.  The Fifth Circuit has granted a COA in Anthony Cardell Haynes v. Quarterman "In light of the Supreme Court’s recent decision in Snyder v. Louisiana."

As always, thanks for reading, as well as for suffering through the typos & formatting errors. - k

• David Lee Powell v. Quarterman, 2008 U.S. App. LEXIS 8209 (5th Cir 4/16/2008) (unpublished) Certificate of Appealability granted on three issues in this case out of Texas. The COA’s first question seems rather curious:

  Claim 1. Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 564 (2002), which were decided while Powell’s case was on direct appeal, required that Powell’s third trial (a capital resentencing proceeding following affirmance of the conviction) be a complete new trial on all the elements of the capital offense (including guilt-innocence elements) rather than just a retrial on the elements formerly treated as sentencing factors.

  Claim 2. The prosecution’s failure timely to disclose documents in which agents of the prosecution asserted that Meinert fired shots at Officer Ablanedo and the other officers and threw a hand grenade violated Powell’s right to due process under Brady v. Maryland, 387 U.S. 83 (1963).

  Claim 3. Powell’s Fifth and Fourteenth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981), were violated when an emergency room doctor, who did not provide Miranda warnings to Powell when he examined Powell following his arrest, testified for the prosecution about Powell’s answers to questions the doctor asked during the examination.

Week of April 14, 2008  – In Favor of the State or Government

• Kent Jermaine Jackson v. Johnson, 2008 U.S. App. LEXIS 7997 (4th Cir 4/15/2008) Relief denied on whether "Jackson’s trial counsel was ineffective for failing to object to the Commonwealth’s victim-to-defendant comparison at sentencing."

• Jose Luis Villegas v. Quarterman, 2008 U.S. App. LEXIS 8210 (5th Cir 4/16/2008) (unpublished)"This case involves an application for a certificate of appealability ("COA") filed by Jose Luis Villegas to appeal the district court's denial of habeas corpus relief under 28 U.S.C. § 2254. Villegas seeks a COA to appeal the denial of his claims that counsel provided ineffective assistance during the penalty phase of his trial by failing to (1) investigate thoroughly his background, character, personal circumstances, and mental health history; and (2) present adequate evidence of his background, character, personal circumstances, and mental health history in a manner sufficient   to provide the jury with a vehicle to consider and give meaningful effect to the evidence in such a way that it would mitigate the imposition of the death penalty. Because we conclude that Villegas has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a COA."

• People v. Alfredo Valencia, 2008 Cal. LEXIS 4060 (Cal 4/14/2008) "The corpus delicti rule applies to unadjudicated crimes offered in aggravation at the penalty phase of a capital trial under current law. A conviction for first degree murder and death sentence is affirmed on automatic appeal over claims of error regarding: 1) prosecutorial misconduct; 2) exclusion of defense evidence; 3) jury instructions; 4) the sufficiency of the evidence; 5) the admission of preliminary hearing testimony; 6) the admission of hearsay evidence to prove corpus delicti; 7) admission of evidence of a photographic lineup; 8) admission of victim impact evidence; 9) limits on defense counsel's jury argument; 10) challenges to California's death penalty law; 11) international law; and 12) cumulative error." [via Findlaw]

Week of April 14, 2008  – noncapital of note

• Billy S. Jeffries v. Morgan, 2008 U.S. App. LEXIS 8352 6th Cir. 4/14/2008)  Remand ordered to expand the record in the court below concerning Brady claims.
  

(Initial List)  Week of April 21, 2008 – In Favor of the Defendant or the Condemned

• Anthony Cardell Haynes v. Quarterman, 2008 U.S. App. LEXIS 8735 (5th Cir 4/23/2008) "In light of the Supreme Court’s recent decision in Snyder v. Louisiana, 128 S.Ct. 1203 (2008), we conclude that Haynes is entitled to a COA in connection with his Batson claims in respect to potential jurors Owens and McQueen."

• Steven Victor Wertz v. State, 2008 Ark. LEXIS 266 (Ark 4/17/2008) (unpublished) Motion to file belated brief is granted

(Initial List) Week of April 21, 2008  – In Favor of the State or Government

• Marvallous Keene v. Mitchell, 2008 U.S. App. LEXIS 8926 (6th Cir. 4/25/2008) Relief denied  on two issues that "were certified for appeal: (1) whether Keene was denied equal protection when the prosecutor allegedly selectively prosecuted him because he is African-American; and (2) whether his due process rights were violated when a pretrial identification procured by allegedly unduly suggestive procedures was admitted into evidence at trial."

• People v. Samuel Zamudio, 2008 Cal. LEXIS 4431(CA 4/21/2008) "Conviction and death penalty for first-degree murder and residential robbery is vacated as to one multiple-murder special circumstances finding but otherwise affirmed in its entirety over claims that trial court erred during guilt phase on multiple evidentiary rulings, during penalty phase on multiple instructional rulings, and that the cumulative effects of errors were prejudicial and required reversal." [via Findlaw]
  

• State v. John Montenegro Cruz, 2008 Ariz. LEXIS 49 (Az 4/21/2008) "Cruz raises twenty-two issues on appeal and lists an additional twenty-one issues to avoid preclusion." Most notable appear to be a fairly strong change of venue claim, that the trial court erred by allowing a "visibly intoxicated" woman to testify, and Cruz was forced to wear a "shock belt"  during trial which impeded his ability to consult with counsel.

• State v. Anthony Bell, 2008 La. LEXIS 865 (LA 4/15/2008) Two day stay granted after pro se defendant decides that maybe he didn't do such a great job representing himself in the guilt phase (as the jury convicted him on all counts) and that maybe his public defenders should represent him in the penalty phase.  The defense had asked for 60 days. (link provided goes to the concurrence and dissent, however, this press account provides a better source of what happens than either the dissent or concurrence.)

• Ellis Louis Mashburn, Jr. v. State, 2008 Ala. Crim. App. LEXIS 90 (Ala. Crim. App 4/25/2008) On return to remand for the trial judge to reweigh aggs vs. mits and to conform its sentencing order to state statute.  Death sentence affirmed. (Previously, the Court had held previously denied a Batson challenge based on use of eight of 40 peremptory strikes to remove black veniremembers and failure to instruct defendant on right to withdraw guilty plea within 30 days of entry did not void plea.)

(Initial List) Week of April 21, 2008  – noncapital of note

• State v. Phillips Hicks & Rashad Babbs, 2008 Wash. LEXIS 365 (Wash 4/24/2008) "We hold that under our current precedent, informing the jury that the case is noncapital and failing to object to the trial court and prosecution doing the same, is deficient performance of counsel. In this case, the error was nonprejudicial."

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