Moore’s Atkins claim could be considered by the federal court and without application of § 2254(d). Moore v. Quarterman. Moore had filed a successive state habeas petition shortly after the Atkins case was decided. The Texas Court of Criminal Appeals (TCCA) rejected the petition under its abuse of the writ rule. Moore then received authorization from the Fifth Circuit to file a successor federal habeas petition raising the Atkins claim. Following an evidentiary hearing, the district court found that Moore had proved his mental retardation and granted the writ. On appeal, a divided panel concluded that Moore’s claim was unexhausted in that it had not been fairly presented to the state court. Because federal review was therefore precluded, the panel majority did not address the merits of the claim. The en banc court observed that the question of whether or not Moore had exhausted his claim was subject to reasonable debate. It concluded, however, that it did not need to resolve the exhaustion question because, under the unique circumstances of this case, there was cause for Moore’s default and prejudice in the absence of federal review. The court explained: “Moore had cause for misunderstanding the state’s successive writ procedures because, when he filed his Atkins petition on December 26, 2002, the TCCA had published no opinion explaining the factual criteria that must be pled in an Atkins petition, nor had such criteria become evident in practice, arising from the unpublished disposition of similar petitions. . . . Moreover, Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule, yet only a few months had passed before Moore filed his petition, and the State had not taken any definitive action. Moore could not exhaust a remedy that the TCCA had not yet articulated; this ‘cause’ was external to Moore and beyond his control. Further, Moore would plainly suffer prejudice from being unable to establish the facts involved in his mental retardation claim. Moore’s mass of evidence, taken at face value, presented a substantial Atkins claim.” Given the showing of cause and prejudice, the district court had authority to review the claim, even if it was unexhausted, “and was under no obligation to defer to the state court’s decision.” The case was returned to the three-judge panel to review the district court’s finding of mental retardation under the clear error standard.

Week of June 23, 2008 – In Favor of the Defendant or the Condemned

•  Eric Lynn Moore v Quarterman, No. 05-70038 (5th Cir 6/26/2008)(en banc) Matter returned to three judge panel on issue of Atkins bar to executing the mentally retarded.

• Robert Gray, Jr. v. Branker, No. 06-29  (4th Cir 6/25/2008) “[C]ounsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue."

• Henry Earl Duncan v. Ornoski, 2008 U.S. App. LEXIS 13308 & 13677 (9th Cir 6/24/2008) As one could predict with an opinion that begins “[o]nce again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel.”

• Eugene Hollis Nunnery v. Eighth Judicial District Court, 2008 Nev. LEXIS 52 (Nev 6/25/2008) "[P]etition for mandamus granted in part. Conspiracy to commit robbery is not an aggravating circumstance." [via Harmful Error]
  

• Ex parte Michael Nawee Blair,  2008 Tex. Crim. App. Unpub. LEXIS 469 (Tex. Crim. App. 6/25/2008) (unpublished) The Texas Court Criminal Appeals granted a new trial  as DNA strongly suggests Blair did not commit the murder for which he know sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released.

Week of June 23, 2008 – In Favor of the State or Government

• United States v. Donald Fell, 2008 U.S. App. LEXIS 13831 (2nd Cir 6/27/2008) "In this appeal, Fell challenges his sentence on a number of grounds falling roughly into four categories: errors in jury selection, errors in the admission of certain evidence, prejudicial comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty."  Notably, use of Mr. Fell's satanic beliefs held to be harmless error.  This case is very likely to go en banc as it is the first affirmed federal death sentence in over forty years in this circuit.

• Cal Brown v. Lambert, 2008 U.S. App. LEXIS 13575 (9th Cir 6/27/2008) "In a death penalty case on remand from the Supreme Court, denial of habeas relief is affirmed where: 1) the district court properly ruled that the Washington death penalty statute is facially valid; 2) the jury selection for petitioner's trial was constitutional; 3) petitioner's counsel weren't objectively deficient, as they made reasonable strategic decisions by not calling a psychiatrist, not calling a licensed professional counselor and not cross-examining a psychiatrist; and 4) there was no abuse of discretion in excluding death penalty trial reports." [via Find Law]

• Mark Brown v. Bradshaw, 2008 U.S. App. LEXIS 13460 (9th Cir 6/27/2008) In a prosecution for aggravated murder, denial of defendant's motion for a writ of habeas corpus is affirmed over claims of error regarding alleged violations of federal law when the trial court gave a Howard instruction during the penalty phase and conducted a post-verdict polling that allegedly coerced the jurors to agree to recommend the death sentence." [via Find Law]

• In re: Mark Dean Schwab,  2008 U.S. App. LEXIS 13566 (11th Cir 6/27/2008) "Prisoner's application for permission to file second or successive habeas corpus petition under 28 U.S.C.S. § 2244(b)(2)(B) was denied because sources of evidence supporting factual predicate of prisoner's claim, i.e., that a State expert witness had changed his opinion, were fully available to the prisoner when he filed his first habeas petition.l" [via Lexisone.com]

• People v. Terrance Charles Page, 2008 Cal. LEXIS 7698 (Cal 6/26/2008) On automatic appeal from a death sentence for first degree murder and for the commission of a lewd act upon a child under the age of 14 years, judgment is affirmed over claims of error regarding: 1) exclusion of asserted exculpatory evidence; 2) admission of certain pornographic magazines; 3) admission of "off-color" remarks concerning defendant; 4) instruction on consciousness of guilt (CALJIC No. 2.03); 5) cumulative error and prejudice; 5) claims related to the penalty phase; 6) asserted juror misconduct; and 7) general challenges to California's death penalty scheme. [via Find Law]

• Mark Dean Schwab v. State,  2008 Fla. LEXIS 1113 (Fl 6/27/2008) "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. Schwab has not demonstrated that the Florida protocol is not substantially similar to the one approved by the United States Supreme Court or that this protocol creates a demonstrated risk of severe pain."

• Richard W. Rhodes v. State, No. SC04-31(Fl 6/27/2008) Revised opinion without (from all appearances) much (if any) meaningful change in the opinion.

• Jeremy Alan Williams v. State, 2008 Okla. Crim. App. LEXIS 18 (Okla Crim App 6/25/2008) Relief denied on claims including: (a) "trial court erred when it failed to remove two jurors for cause" (experience with crime) (b) "trial court erred when it allowed the State to introduce evidence of the prior robbery;" (c) " evidence concerning the amount of money in his pocket during the traffic stop after the robbery was the product of an illegal search, thus inadmissible;" (d) "the prosecutor exceeded the scope of cross-examination during the re-direct questioning of Dyra Malone;" (e) "highly prejudicial evidence, which was not relevant to any issue, was improperly introduced during trial;" (f) "trial court erred in permitting a police officer to give expert testimony for which he was not qualified to give;" (g) sufficiency;(h) victim impact evidence was improperly admitted (statements exceeded the scope of allowable victim impact evidence &failure to give the uniform instruction on victim impact testimony); (i) "instructions defining mitigating evidence were insufficient;" (j) "Oklahoma's "continuing threat" aggravating circumstance is unconstitutional;" (k) state's closing arguments; (l) IAC (failing to object or preserve the record, making certain concessions during second stage closing argument, & failing to object to the prosecutor's arguments during trial); and  (m) cumulative error.
  

• State v. Allen Gary Zweigart, Sr.,  2008 Ore. LEXIS 433 (Ore 6/26/2008) (dissent) Relief denied on whether: "(1) In finding defendant guilty of aggravated murder by hire, did the jury necessarily determine that Fortier shot the victim? (2) In finding defendant guilty of personally committing aggravated felony murder, did the jury necessarily determine that defendant shot the victim? (3) Were the jury verdicts inconsistent and was the jury unanimous respecting the material facts supporting those verdicts?"

• Ronnie Joe Neal v. State, 2008 Tex. Crim. App. LEXIS 754  (Tex. Crim. App. 6/18/2008) Evidence was sufficient to support defendant's capital murder conviction under Tex. Penal Code Ann. § 19.03(a)(2) because it included defendant's own admissions and that of his accomplice that defendant raped and murdered the victim and fingerprint and DNA evidence implicating defendant.

• Ex parte Joseph Roland Lave, Jr., 2008 Tex. Crim. App. LEXIS 758  (Tex. Crim. App. 6/25/2008) On remand from the Supreme Court, "we adhere to our retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to cases on collateral review in Texas state courts. We again dismiss this subsequent application for writ of habeas corpus. . .."

• State v. Andre Williams,  2008 Ohio App. LEXIS 2804 (Ohio 11th App 6/27/200) Split court denial on the issue of mental retardation without an evidentiary hearing.

• Jamie Ray Mills v. State, 2008 Ala. Crim. App. LEXIS 117 (Ala. Crim. App. 6/27/2008) "[W]e remand this case with instructions that the trial court amend its sentencing order to comply with the requirements of §13A-5-47(d), Ala. Code 1975, and to correct the above-referenced errors. If necessary, the trial court may reweigh the aggravating circumstances and the mitigating circumstances and resentence the appellant. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion." Note relief also denied on numerous other claims.

• Tyrone Chalmers v. State, 2008 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. 6/25/2008)  The Tennessee Court of Criminal appeals denies relief on ineffective assistance of counsel claims relating to trial counsel "by breaching acceptable standards for capital representation in that: 1. Counsel was not qualified to handle a capital case; 2. Counsel failed to develop a theory of defense; 3. Counsel failed to expose biases prejudicial to the petitioner during voir dire; 4. Counsel failed to adequately pursue the suppression motion; 5. Counsel failed to use available resources; 6. Counsel delivered inadequate opening and closing arguments; and 7. Counsel failed to adequately cross-examine the State’s witnesses."  In the penalty phase "1. Counsel failed to request certain jury instructions; 2. Counsel failed to object to testimony regarding the Hunter offense; 3. Counsel failed to object to State’s closing argument regarding the Hunter offense; and 4. Counsel failed to properly investigate and prepare mitigation evidence."

• State v. Clarence Roberts,  2008 Ohio 3115; 2008 Ohio App. LEXIS 2630 (Ohio 5th App Div 6/24/2008) Relief denied relating to failure "to assure appellant a full & complete disclosure of records and documents of this criminal case" and failure to order production of certain prosecutorial records.

Week of June 23, 2008 – Noncapital of Note

• Jason Earl Wooley v. State, NO. PD-0861-07 (Tex. Crim App 6/25/2008)  "Defendant's due-process rights were violated when the court of appeals affirmed his conviction under the unsubmitted theory that he aided "another" to murder the victim because the charge incorrectly applied the law of parties by authorizing defendant's conviction as a party upon a finding that defendant aided only "another" in causing the death."

(Initial List) Week of June 30, 2008 – In Favor of the Defendant or the Condemned

• Michael Wayne Hall v. Quarterman, No. 06-70041 (5th Cir 6/30/2008) Remand for a live evidentiary hearing ordered on Hall’s Atkins claim.

• Mark Hall v. McPherson,  2008 Ga. LEXIS 551 (Ga 6/30/2008) "The testimony elicited at trial regarding McPherson's upbringing, in contrast to that presented at the habeas evidentiary hearing, not only failed to inform the jury of the extent and scope of the childhood abuse and neglect McPherson endured and of his childhood exposure to alcohol and drug-abusing adults, but the trial testimony portrayed McPherson's mother as a long-suffering, hard-working, devoted mother to her sons who had done everything she could to keep McPherson away from drugs. The jury never heard that when McPherson was growing up, his mother was a violent alcoholic who chased him away from his home for days at a time and who often beat him, leaving him badly bruised, and that he spent much of his youth in foster homes or institutionalized."  Further, "No reasonable lawyer in counsel’s position would have decided not to seek McPherson’s drug treatment records, particularly his Charter Peachford records.Trial counsel’s investigation also was not reasonable in light of the guidelines set forth by the American Bar Association, which provide that counsel at every stage of a capital case “have a continuing duty to investigate issues bearing upon penalty and to seek information that supports mitigation or rebuts the prosecution’s case in aggravation.” As counsel had no rational strategy or reason for failing to develop this mitigating evidence, their performance fell below an objective standard of reasonableness.

• State v. Terrance Tate,  2008 Ohio App. LEXIS 2712 (Ohio 7th App 6/26/2008)  (dissent) "The motion to suppress was properly granted because defendant was in custody when he was questioned about the child’s fatal injuries. The interrogation took place at the police station, defendant was a suspect and was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking. " [via Lexisone]

(Initial List) Week of June 30, 2008 – In Favor of the State or Government
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