I should note that this week's news round-up drew heavily from the work of Steve Hall, Project Director of Stand Down - Texas, as well as DPIC. As always thanks for reading, for forgiving the typos in advance, and understanding that the downturn in the economy has seen a corresponding rise in my indigent defense practice and related obligations.  - k

• Robert Alan Fratta v. Quarterman, 2008 U.S. App. LEXIS 15421 (5th Cir 7/22/2008) Relief granted on State's use, through hearsay, of the purported confession of co-conspirators without placing those co-conspirators on the stand.
  

• Comm. v. Ronald Gibson, 2008 Pa. LEXIS 1182 (Pa 7/24/2008) "It is well established that capital counsel has the “obligation to conduct a thorough investigation” for possible mitigating evidence, or to make reasonable decisions that render particular investigations unnecessary. Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, reviewing courts are to take all reasonable efforts to avoid distorting effects of hindsight. Nevertheless, courts must also avoid “post hoc rationalization of counsel's conduct.” Here, the credited evidence supports the conclusion that no pre-trial investigation of mitigating evidence was undertaken. While in light of Attorney Gaskins’ late entry into the case, it is certainly debatable whether the deficient stewardship should be attributed to him or to Appellant’s original counsel whom Attorney Gaskins replaced, this question is largely collateral to the present inquiry. For our purposes, it is enough that there is a supported finding that no pre-trial investigation was undertaken, and there is no evidence (or finding) that some reasonable professional judgment supported the limitation of the investigation."

• Comm. v. Joseph Daniel Miller, 2008 Pa. LEXIS 1176 (Pa 7/23/2008) PCRA trial court's grant of relief under Atkins v. Virgina affirmed.

• Comm v. David Allen Sattazahn, 2008 Pa. LEXIS 1180 (Pa 7/24/2008) "[W]e recognize that the substantial aggravation advanced by the Commonwealth encompassed Appellee’s commission of the present killing in the perpetration of a robbery, as well as his history of violent offenses including two murders. Nevertheless, the presentation at trial of the credited post-conviction evidence would have provided support for the finding of several statutory mitiigators, which also bore upon the degree of Appellee’s culpability in terms of selecting between capital punishment and a life sentence. The absence, due to an inadequate investigation, of substantial, relevant, mitigating evidence diminishes confidence in the outcome of the sentencing proceeding, particularly given the appropriate single-juror frame of reference."

• Ex parte Gerald Patrick Lewis; (In re: Gerald Patrick Lewis v. State of Alabama), 2008 Ala. Crim. App. LEXIS 123 (Ala Crim App 7/25/2008) Mandamus granted to shield some contents of trial counsel's file from the State. "We join the majority of other jurisdictions that have addressed this issue and hold that when a petitioner raises a claim of ineffective assistance of counsel in a postconviction proceeding he waives the attorney-client privilege "only with respect to matters relevant to his allegations of ineffective assistance of counsel." n4 State v. Taylor, 327 N.C. at 152, 393 S.E.2d at 805. The extent of the waiver must, by necessity, depend on the scope of the ineffective-assistance-of-counsel claims that are raised in the postconviction petition. Moreover, the circuit court should conduct an in camera inspection of the attorney's file to determine whether any portions of the file are not related to the ineffective-assistance claims that are raised in the postconviction petition. In this case Lewis raised a multitude of claims concerning the performance of his trial attorney  in his 309-page petition; thus, his waiver is broader than a petitioner who asserts only one claim of ineffective-assistance-of-counsel."  Trial court, however, properly quashed a subpoena duces tecum for the trial prosecutor's files.

• Jeffery William Paul v. United States, 2008 U.S. App. LEXIS 15571 (8th Cir 7/22/2008) "District court did not err in denying habeas relief on Paul's claim that his attorneys provided ineffective assistance of counsel by failing to investigate and present evidence of his mental, medical and physical history; viewing the evidence and information proffered in connection with the claim in the context of the trial record as a whole, Paul has failed to show prejudice from counsel's actions as there is no reasonable probability that the jury would not have selected the sentence of death if trial counsel had gathered and presented the additional evidence; district court did not err in denying claim that trial counsel were ineffective in failing to pursue his allegations that he was incompetent to stand trial; Paul's alleged incompetence did not bar him from presenting his Sixth Amendment claims in the habeas proceedings, and the district court's finding that Paul was competent to proceed in his habeas was neither clearly erroneous nor prejudicial." [via the Eighth Circuit Clerk's Office]

• Reginald Blanton v. Quarterman, 2008 U.S. App. LEXIS 15909 (5th Cir 7/24/2008)(unpublished) " An application for a COA by a state inmate who had been convicted of capital murder and sentenced to death was granted as to one claim of ineffective assistance of trial counsel since that claim had been adequately briefed, but the application was denied as to nine other claims because they had been waived since they were not adequately briefed. " [via Lexisone]

• People v. Tomas Verano Cruz, 2008 Cal. LEXIS 9079 (Cal 7/24/2008) "Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court. Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for ddrunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense. Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective." [via Shaun Martin]
  

• Robert Allen Gattis v. State, 2008 Del. LEXIS 341 (Del 7/24/2008) "Denial of a motion for postconviction relief in a capital murder case is affirmed where: 1) the trial judge did not err in declining to disqualify herself; 2) the appellate court did not abuse its discretion by denying defendant's requests to extend the time and length limitations on his opening brief; 3) an ineffective assistance of counsel claim was procedurally barred; 4) Delaware's capital sentencing procedure is constitutional; 5) there was no merit to a claim that the trial judge was improperly influenced by extrajudicial contact with jurors; and 6) the trial judge properly weighed the jury's death penalty recommendation in imposing sentence." [via Findlaw]
  

• People v. Tomas Verano Cruz, 2008 Cal. LEXIS 9079 (Cal 7/24/2008) "Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court. Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for ddrunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense. Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective." [via Shaun Martin]

• State v. Cody James Martinez, 2008 Ariz. LEXIS 126 (Az 7/25/2008)  Martinez raises twenty-five issues, along with an additional seventeen issues to avoid preclusion. Most notable among the issues are improper comments on the appellate process during jury voir dire to the appellate and post conviction process, inflammatory closing in the aggravation phase, and the jury's verdict of death was not an abuse of discretion.  Note, appellate counsel appears to have begun a fairly substantial penalty phase mitigation investigation and I suspect several lines of the opinion are foreshadowing of the state postconviction opinion, "much of Martinez's argument is not supported by the record," "the claim - that Martinez was himself sexually abused - was undermined by the absence of any eviddence " and  "the remainder of his mitigation evidence was unfocused" at trial.

• Robert Allen Gattis v. State, 2008 Del. LEXIS 341 (Del 7/24/2008) "Denial of a motion for postconviction relief in a capital murder case is affirmed where: 1) the trial judge did not err in declining to disqualify herself; 2) the appellate court did not abuse its discretion by denying defendant's requests to extend the time and length limitations on his opening brief; 3) an ineffective assistance of counsel claim was procedurally barred; 4) Delaware's capital sentencing procedure is constitutional; 5) there was no merit to a claim that the trial judge was improperly influenced by extrajudicial contact with jurors; and 6) the trial judge properly weighed the jury's death penalty recommendation in imposing sentence." [via Findlaw]

• Paul Lewis Browning v. State, 124 Nev. Adv. Rep. 50 (Nev 7/24/2008) Relief denied on claims including: Presentation of false evidence; Reconsideration of previous finding of harmlessness re: the guilt phase; Jurisdiction of a senior judge to preside over a capital case; Removal of a juror for cause; Irregularities concerning the mitigation verdict form; Instruction regarding the felony-murder aggravating circumstances; Prosecutorial misconduct; Denial of investigative funds; Use of leg restraints during the penalty phase; Admission of Hearsay;  Admission of evidence in violation of a district court order; and  Cumulative error. [h/t Harmful Error]

• Comm. v. Robert Cook, 2008 Pa. LEXIS 1181 (Pa 7/24/2008) More next week, however, relief denied on a grab bag of guilt phase issues. Comm. abandoned appeal of trial court's order for a new penalty phase hearing.
  

• Comm. v. Michael Pruitt, 2008 Pa. LEXIS 1177 (Pa 7/23/2008) More next week, however, relief denied on a grab bag of claims including a medical examiner who was permitted to speak well outside what one would normally think is his area of expertise.

• .Comm. v. James Jones, 2008 Pa. LEXIS 1172 (Pa 7/22/2008)  Relief denied on the following claims "I. Did this Court err in requiring the PCRA court to apply Commonwealth v. Uderra as the controlling law in reviewing [Appellant’s] claim for relief under Batson v. Kentucky?; II. Did the PCRA court err in declining to treat this claim in the posture of a direct appeal nunc pro tunc as a result of the state courts’ failures at all stages prior to post-conviction to produce the notes of testimony of the voir dire and the failures of all trial, post-trial, and direct appeal counsel to request production of the voir dire transcripts?; III. Did the PCRA court improperly deny relief on [Appellant’s] claim that the Commonwealth exercised its preemptory strikes in a racially discriminatory manner, in violation of the Sixth and Fourteenth Amendments, and Article I Sections 1, 9, and 26 of the Pennsylvania Constitution?; and  IV. Did the PCRA court err in refusing to grant discovery and an evidentiary hearing on [Appellant’s] claim that the Commonwealth exercised its preemptory strikes in a racially discriminatory manner?"

• Comm. v. Thavirak Sam, 2008 Pa. LEXIS 1175 (Pa 7/22/2008) (dissent) Comm. may involuntarily medicate to make him competent for purposes "[W[e hold that the PCRA court erred in determining that appellee may refuse the administration of antipsychotic medication under the circumstances of this case. Accordingly, we reverse that part of the order of the PCRA court which denied the Commonwealth's Motion to Compel Psychiatric Medication. We direct the PCRA court to order that appellee be administered, involuntarily if necessary, antipsychotic medication to render him competent. If such medication renders appellee competent, the PCRA court is hereby directed to ascertain the following: first, whether appellee, in fact, wishes to proceed with the PCRA petition that Attorney Dunham filed without his authorization; and, if the answer to the first question is in the affirmative, then, second, whether appellee can assist counsel in pursuing PCRA relief. If antipsychotic medication does not succeed in rendering appellee competent, the PCRA court is directed to consider whether the PCRA petition should be dismissed, assuming a suitable third party cannot be appointed to serve as appellee's next friend."
  

• Comm. v. Herbert Watson, 2008 Pa. LEXIS 1173 (Pa 7/22/2008) (dissent)   "[W]e hold that the PCRA court erred in determining that appellee, or his counsel and next friend on his behalf, may refuse the administration of antipsychotic medication under the circumstances of this case. Accordingly, we reverse the PCRA court's denial of the Commonwealth's request that appellee be compelled to take such medication. We direct the PCRA court to order that appellee be administered, involuntarily if necessary, antipsychotic medication to render him competent. If such medication renders appellee competent, the PCRA court is hereby directed to ascertain the following: first, whether appellee, in fact, wishes to pursue PCRA relief; and, if the answer to the first question is in the affirmative, then, second, whether appellee can assist counsel in pursuing such relief. If antipsychotic medication does not succeed in rendering appellee competent, the PCRA court is directed to definitively determine whether Mrs. Watson is a suitable party to serve as appellee's next friend. If the PCRA court determines that Mrs. Watson should not serve as appellee's next friend, then the court should proceed to determine whether appellee's PCRA petition should be dismissed, in accordance with the procedure set forth in this Court's mandate in Sam."

• Comm. v. Ronald Francis Puksar, 2008 Pa. LEXIS 1174 (Pa. 7/22/2008) ": Dismissal of appellant's petition for relief under Pennsylvania's Post Conviction Relief Act was affirmed. Counsel was not ineffective for failing to adequately investigate potential mitigating evidence at the penalty phase, as appellant was insistent that he did not want to present any mitigating evidence." [via Lexisone]

• People v. Arthur Lourdes Lenix, 2008 Cal. LEXIS 9080 (Cal 7/24/2008) "In the context of Batson claims, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons. A conviction for crimes arising from a fatal shooting is affirmed is affirmed over a Wheeler/Batson claim regarding jury selection. " [via Findlaw]

• Brown v. Craig Farwell, 2008 U.S. App. LEXIS 15393 (9th Cir 7/21/2008) "Grant of the habeas petition and reversal of the prisoner's conviction was affirmed because had the expert's inaccurate and unreliable testimony on the DNA evidence been excluded, there would have been insufficient evidence to convict the prisoner on each essential element of the sexual assault offenses beyond a reasonable doubt."

• People v. Blaine Allen Evans (Cal. Supreme Ct. - July 24, 2008) "Throughout the history of Anglo-American jurisprudence, for almost half a millennium, a defendant has had the right to allocute after being convicted of a crime. To express sorrow for what he's done. To explain his actions. To beg for mercy. To try to place a human face on things before the court pronounces sentence." [via Shaun Martin]

• Andre Stevens v. Beard, 2006 U.S. App. LEXIS 32769 (3rd Cir 7/25/2008) (unpublished) Remanded from the Supreme Court following a prior grant of penalty phase relief on death qualification of jury,  panel remands  to district court for further factual development.

• People v. Lester Harland Wilson, 2008 Cal. LEXIS 9277 (CA 7/28/2008) "Removal of sole juror holding out for a life sentence during penalty phase of defendant's first-degree murder trial on grounds that juror had, inter alia, concealed bias on voir dire and prejudged question of penalty was error under Pen. Code, § 1089, as it was not shown to demonstrable reality that juror was unable to perform this duty as a juror." [via Findlaw]

•  State v. David Lamar Anthony, 2008 Ariz. LEXIS 123 (Az 7/28/2008)  Use of Rule 404(b) / other crimes evidence as to child sexual assault was improper as the State had not proved the existence of said crime by clear and convincing evidence and the use in this circumstantial case was not harmless beyond a reasonable doubt.
  

• Herbert Smulls v. Roper, 2008 U.S. App. LEXIS 15983 (8th Cir 7/29/2008) (en banc)  "By denying Smulls's Batson challenge, the state trial judge implicitly found that the prosecution's proffered nondiscriminatory reasons for his decision to strike the juror were credible, and the absence of any further fact-finding is not a misapplication of established Supreme Court precedent; nor does the absence of explicit findings change this court's obligation to view the state trial court's findings as presumptively correct; Missouri Supreme  Court's analysis of the Batson claim was not procedurally flawed, as the court announced and applied the correct standards of review; Missouri courts' analysis of the Batson issue does not constitute an unreasonable determination of the facts based on the evidence contained in the record; that portion of the panel opinion which rejected Smulls' ineffective assistance of counsel claims is reinstated. Judge Bye, concurring in part and dissenting in part, joined by Judge Smith: The dissent asserts that the trial court failed to make the findings and engage in the evaluative process anticipated by Batson and its progeny." [8th Circuit Clerk's Office] "Denial of habeas relief in a death penalty case is affirmed where: 1) state courts' Batson ruling was not contrary to and did not involve an unreasonable application of clearly established Supreme Court precedent, nor was it based on an unreasonable determination of the facts in light of the evidence presented to the state courts; and 2) the original panel's opinion rejecting meritless Batson-related ineffective assistance of counsel claims is reinstated." [via FindLaw] "The denial of the inmate's 28 U.S.C.S. § 2254 petition was affirmed; the state courts' Batson ruling was not contrary to and did not involve an unreasonable application of clearly established U.S. Supreme Court precedent, nor was it based on an unreasonable determination of the facts in light of the evidence presented to the state courts." [via Lexisone]

• Alan Dale Walker, et al, v. Epps, 2008 U.S. App. LEXIS 15547 (5th Cir 7/21/2008)(unpublished) Relief denied on a lethal injection challenge.

• Dale Leo Bishop v. Epps, No. 08-70029 (5th Cir 7/21/2008)(unpublished) Rule 60(b) motion held successive without substantive discussion as to merits.
  

• William Earl Pondexter, Jr. v. Quarterman, 2008 U.S. App. LEXIS 15980 (5th Cir 7/29/2008) "Denial of a habeas corpus petition in a capital murder case is affirmed where: 1) several ineffective assistance of counsel claims failed for lack of evidence of either deficient counsel or of prejudice to defendant; 2) a Brady claim failed because the evidence alleged to have been withheld consisted of defendant's own statements; and 3) the government's use of inconsistent theories in the separate trials of co-defendants did not violate due process." [via FindLaw] "Strickland's deficient-performance prong, federal habeas petitioner, convicted in state court of capital murder, failed to show consultation with pathologist would have changed verdict and there was eyewitness testimony that both petitioner and codefendant shot the victim and medical testimony that both shots occurred while she was alive." [via Lexisone]
  

• Patrick Timothy Richardson v. Quarterman, 2008 U.S. App. LEXIS 15969 (5th Cir 7/28/2008) "Denial of a habeas corpus petition alleging that a trial judge was required to recuse himself is affirmed where the state appellate court's decision denying a new trial was not contrary to, and did not involve an unreasonable application of, clearly established federal law, and therefore did not meet the structural error test requiring automatic reversal." [via FindLaw]

• John D. Freeman v. Attorney General, State of Florida,  2008 U.S. App. LEXIS 16244 (11th Cir 7/31/2008) "Habeas petitioner’s Sixth, Eighth, and Fourteenth Amendments claims were undermined by state trial court’s finding that prosecutors did not base capital sentence decision on his race; petitioner failed to show by clear and convincing evidence that state court findings were unreasonable in light of post-conviction evidentiary hearing evidence." [via Lexisone]

• People v. Keith Thomas Loker, 2008 Cal. LEXIS 9275 (Cal 7/28/2008) "In a death penalty case, the judgment and sentence are affirmed over claims of error regarding: 1) admission of photographic evidence; 2) instructional error; 3) allowing the prosecutor to cross-examine defense witnesses about a psychiatric report; 4) limitation of mitigating evidence; 5) a failure to issue a protective order; 6) exclusion of a toxicology report; 7) admission of evidence regarding plea negotiations on Arizona charges; 8) prosecutorial misconduct; 9) instructional error during the penalty phase; 10) juror misconduct; 11) the constitutionality of the death penalty statute; 12) the proportionality of the sentence; and 13) cumulative error." [via FindLaw]

• Ex parte Jose Ernesto Medellin, 2008 Tex. Crim. App. LEXIS 851 (Tex. Crim. App. 7/31/2008) (dissent) Successive state application raising allegations that: "(1) the United States Supreme Court's decision in Medellin v. Texas [ ] affirming and clarifying this Court's opinion in applicant's case; (2) the fact that a bill has been introduced in the United States House of Representatives which, if passed into law, would grant applicant a right to the judicial process required by Avena; (3) the indication by a Texas Senator that he will introduce similar legislation in the Texas Legislature in the 2009 session; and (4) the fact that the Inter-American Commission on Human Rights, allegedly the 'only body to have reviewed all of the evidence pertaining to [applicant's] Vienna Convention violation under the standard required by the ICJ,' on July 24, 2008, issued its preliminary findings concluding that applicant was prejudiced by the violation of his Vienna Convention rights' denied."

• State v. Shad Daniel Armstrong, 2008 Ariz. LEXIS 127 Az 7/29/2008)  Relief denied on nine issues including: "1. Did the court commit reversible error when it failed to first comply with A.R.S. §§ 13- 703.02 and 13-703.03? 2. Did the court commit reversible error in allowing the State to read into evidence the entire transcript of the direct examination of David Doogan’s trial testimony? 3. Did the court commit reversible error in holding that the State was permitted to introduce any and all evidence from the first jury trial at the sentencing trial? 4. Did the trial court commit reversible error in allowing Frank Williams’s mother to make a victim impact statement at the conclusion of the penalty phase of the trial? 5. Did the limitation on appellant’s right of allocution deprive him of his constitutional right to due process? 6. Did the court improperly preclude the defense from introducing mercy as a mitigating factor? 7. Did the court commit reversible error in failing to provide a specific mitigation verdict to the jury? 8. Was the evidence insufficient to establish the F(8) aggravator? [and] 9. Is the Arizona death penalty statute unconstitutional? " [via the Arizona Supreme Court Staff Attorney's Office]
  

• Richard Strong v. State, 2008 Mo. LEXIS 145 (Mo 7/31/2008) "This case involves the denial of postconviction relief in a death penalty case. In a 4-3 decision written by Judge Patricia Breckenridge, the Supreme Court of Missouri affirms the circuit court's judgment. The circuit court did not err in denying the defense counsel the opportunity to question jurors after the trial in an attempt to investigate and prove claims of ineffective assistance of trial and juror misconduct. The defendant failed to establish he was prejudiced by his trial counsel's failure to raise constitutional challenges, based on religion, to the state's action removing two potential jurors. There is sufficient evidence to support the circuit court's finding that the defendant's trial counsel acted professionally and made sound strategic decisions regarding his choice of defense, his response to certain evidence and argument presented by the state, and his presentation of mitigation witnesses. In addition, the defendant's assertion challenging Missouri's method and protocol of lethal injection was not supported by evidence and was not ripe. Judge Michael A. Wolff dissents. He would reverse the circuit court's judgment and would remand (send back) the case for a new trial, finding that because of his religious beliefs, one prospective juror was barred from sitting on the jury in violation of the Missouri Constitution and that, as a result, the defendant was tried by a jury seated in an unconstitutional manner." [via court supplied headnotes]

• Robert J. Van Hook v. Anderson,  2008 U.S. App. LEXIS 16544 (6th Cir 8/4/2008) "District court erred in denying § 2254 habeas relief to death-sentenced Ohio prisoner, Ohio Rev. Code Ann. § 2929.04; trial counsel was ineffective under U.S. Const. amend. VI at the mitigation phase because he failed to perform complete mitigation investigation, to secure independent mental health expert, and to object to inadmissible evidence."  [via Lexisone] " Denial of habeas relief in a death penalty case is reversed and remanded where petitioner's trial counsel was prejudicially ineffective during the sentencing phase for: 1) failing to fully investigate and present as evidence all available mitigating factors; 2) failing to secure or attempt to secure an independent mental health expert to testify that the crime was the product of a mental disease; and 3) mistakenly introducing and failing to object to proscribed evidence that was clearly damaging to petitioner's case." [via Findlaw]

• Michalel Lee Wilson v. Sirmons, 2008 U.S. App. LEXIS 16862 (10th Cir 8/8/2008) (dissent) "Michael Lee Wilson, a death row inmate in the Oklahoma State Penitentiary, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Wilson was convicted of one count of murder in the first degree and robbery with a dangerous weapon. In the sentencing phase, the jury found three statutory aggravating factors. He was sentenced to death for the first degree murder and to life in prison for the robbery. For the reasons set forth below, we affirm the district court as to all issues other than ineffective assistance of counsel at the mitigation phase; with respect to that issue we remand for an evidentiary hearing. Judge Hartz and Judge Tymkovich join all but Part III of this opinion, which addresses the ineffective assistance of counsel claim. Judge Hartz joins Part III(c) and concurs in the result of Part III. Judge Tymkovich dissents from the holding of Part III." Good language on deference owed under AEDPA.
  

• Michael Bies v. Bagley,  2008 U.S. App. LEXIS 16491 (6th Cir 8/5/2008) (dissent) Motion to rehear en banc denied.  "Concurring in denial: Bies v. Bagley is an easy case. It warrants no further review by the en banc Court. As the panel opinion correctly explained, the collateral estoppel doctrine which the Supreme Court articulated in Ashe v. Swenson mandates that Michael Bies be granted a writ of habeas corpus. Moreover, even if any uncertainty did exist regarding the proper application of Ashe, Bies' case provides an abysmal vehicle to resolve such alleged uncertainty because the Supreme Court's decision in Sattazahn v. Pennslyvania provides an alternative grounds upon which Bies is entitled to relief. Thus, despite the dissent's efforts to stir controversy where none exists, the en banc Court correctly decided not to subject Bies to further unnecessary litigation"

• State v. Phillip Alan Bocharski, 2000 Ariz. LEXIS 1-- ; CR-06-0295-AP (Az 8/8/2008) "Bocharski’s mitigation evidence is unique in its depth and breadth. The evidence in the record demonstrates severe neglect, as well as almost unimaginable mental, physical, sexual, and emotional abuse throughout his childhood. The record also reveals Bocharski’s history of alcohol abuse and intoxication at the time of the crime. Finally, he established the impact of execution on his family and his remorse. Although a “difficult family background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency in every capital case,” we can consider both the degree to which a defendant suffered as a child and the strength of a causal connection between the mitigating factors and the crime “in assessing the quality and strength of the mitigation evidence.” Hampton, 213 Ariz. at 185 ¶ 89, 140 P.3d at 968 (citation and internal quotation omitted). Here, [however,] we have evidence of a causal connection."
  

• Gregory Lott v. Bagley,  2008 U.S. App. LEXIS 16728  (6th Cir. 8/8/2008) " Denial of habeas relief in a death penalty case is affirmed where: 1) new evidence of prosecutorial wrongdoing did not undermine the finding of guilt; 2) thus, petitioner could not proceed with his otherwise procedurally defaulted claim that the state violated his due process rights by failing to turn over certain "exculpatory" information in violation of Brady." [via Findlaw]

• Stacey Eugene Johnson v. Norris,  2008 U.S. App. LEXIS 16742 (8th Cir 8/8/2008) "Given the absence of Supreme Court guidance on the issue of whether the right to confront a witness should trump the state's psychotherapist-patient privilege, the decisions of the Arkansas courts to enforce the privilege and prevent Johnson from obtaining the treatment notes of his victim's minor daughter were within the range of reasonableness allowed by the Antiterrorism and Effective Death Penalty Act; nor did the Arkansas courts err in denying a related Brady argument; Arkansas courts did not err in finding counsel acted within the wide range of professionally competent assistance when he advised Johnson not to testify at a pretrial hearing; counsel's failure to raise a constitutional challenge to the trial court's refusal, on a state law ground, to allow one of his witnesses to testify was not ineffective assistance of counsel as there was no basis for a constitutional challenge to the decision; Arkansas courts did not err in rejecting Johnson's vagueness argument with respect to the aggravating circumstance that the murder was committed in an "especially cruel manner;" Arkansas courts did not err in finding admission of victim impact testimony did not violate Johnson's constitutional rights; Arkansas courts correctly applied established federal precedent in determining a change of venue did not deprive Johnson of his constitutional right to trial by a fair cross-section of the community." [8th Circuit Clerk's Office] "Denial of habeas relief in a death penalty case is affirmed over claims of error regarding: 1) whether petitioner's rights under the Sixth and Fourteenth Amendments were violated when the district court denied him access to a witness's psychotherapist records; 2) whether trial counsel was ineffective at a pre-trial suppression hearing; 3) trial counsel was ineffective in failing to raise a challenge to a refusal to admit a witness's testimony; 4) an aggravating circumstance that the murder was committed in "an especially cruel manner"; 5) the use of victim impact testimony at the sentencing phase; 6) a change of venue; and 7) whether the certificate of appealability should be expanded to include a claim regarding DNA testing of evidence." [via Findlaw]

• Richard Earle Shere, Jr., v. Secretary, Florida DoC,  2008 U.S. App. LEXIS 16623 (11th Cir 8/8/2008) "A district court's denial of a Florida death row inmate's petition for a writ of habeas corpus was affirmed since the Florida Supreme Court's denial of his ineffective assistance of appellate counsel claim was neither contrary to, nor an unreasonable application of, clearly established United States Supreme Court law." [via Findlaw]

• State v. Kevin Keith, 2008 Ohio 3866 (Ohio 8/7/2008) Motion to reopen appeal denied as untimely. "Keith claims to have had good cause for filing his application late because during his state postconviction and federal habeas corpus litigation, he was represented by the same counsel who had represented him on direct appeal before the court of appeals. We cannot agree with Keith’s contention that this circumstance constitutes good cause for his delay in filing his application. We have rejected claims that an applicant had good cause for filing an untimely App.R. 26(B) application because his original appellate counsel were still representing him in collateral litigation"