Capital Defense Weekly

Leading off this edition is the only favor disposition for the period from August 11-18, 2008, Rickey Lynn Lewis v. Quarterman . The Fifth Circuit in Lewis remands back to the district court the question of whether or not Lewis is mentally retarded. Specifically at issue in Lewis is an affidavit by the creator of the IQ test relied upon by the State’s expert that asserts the State's expert flawed methodology improperly raised Mr. Lewis IQ score. The district court failed to consider the affidavit in making its determinations. The panel in Lewis concludes the affidavit submitted for the first time in federal habeas review — and hence unavailable to the state court in making its factual determinations — should have been considered by the district court in determining whether or not Mr. Lewis is, in fact, mentally retarded.

In other news, Jeffrey Woods' execution has been stayed by the Hon. Orlando L. Garcia, a federal district court judge, Jeffrey Woods v. Quarterman. In strong, blunt language the district court condemned the Texas state courts' position that Woods, pro se, needed to make a "substantial showing of incompetency" before experts and counsel were appointed. "With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

The Missouri Supreme Court has postponed the scheduled execution of Dennis Skillicorn. The Skillicorn Court stayed the August 27 execution date after counsel asserted prison officials obstructed their efforts to prepare a clemency petition.

In a "grab bag" of other news, a federal district court has stayed Denard Manns' execution date as, purportedly, Mr. Manns was without counsel. Counsel for Charles Hood recently filed a civil lawsuit seeking to discover whether retired Judge Verla Sue Holland and former district attorney Tom O’Connell, Jr., the former presided over Mr. Hood's trial while the latter was DA, had an affair during the course of the trial. The Innocence Project reports the Texas State Forensic Science Commission has agreed to investigate possible negligence or misconduct in the Cameron Todd Willingham case; Mr. Willingham was executed in 2004. The Baltimore Sun reports on the ongoing Maryland Commission's hearing on the death penalty. President Bush on Friday signed into law legislation expanding a student loan forgiveness program for students who become legal aid lawyers, state or local prosecutors and public defender.

Looking to the next edition, several favorable opinions are noted. In both Jesse Bond v. Beard &Reginald Jells v. Mitchell relief is granted, from the Third and Sixth Circuits, respectively, on the failure of trial counsel to adequately investigate and prepare for the penalty phase. In Jasper N. McMurtrey v. Ryan the Ninth Circuit grants relief as there exists "a reasonable doubt as to McMurtrey's mental competence" to have stood trial. In Michael Rosales v. Quarterman the Fifth Circuit grants a COA on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia.

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

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin & AP]

Week of August 11, 2008 – In Favor of the Defendant or the Condemned

Ricky Lynn Lewis v. Quarterman, 2008 U.S. App. LEXIS 17156 (5th Cir 8/12/2008) Remand ordered on Petitioner's Atkins claim. Claim raised on a successive petition. The issue before the panel in Lewis is whether an affidavit submitted for the first time in federal habeas review — and hence unavailable to the state court in making its factual determinations — could be considered by the district court. The affidavit counters the findings of the State’s expert as to whether Mr. Lewis is mentally retarded. Specifically, the creator of the IQ test relied upon by the State’s expert asserts that the methodology used in testing of Mr. Lewis artificially inflated his IQ.

Week of August 11, 2008 – In Favor of the State or Government

Khristian Oliver v. Quarterman, 2008 U.S. App. LEXIS 17307 (5th Cir 8/14/2008) "Oliver argues that the jury violated his rights under the Sixth and Eighth Amendments by considering passages from the Bible during the sentencing phase of its deliberations. Although the jury improperly consulted the Bible, the state court found that the Bible did not influence the jury’s decision. As Oliver has not presented clear and convincing evidence to rebut this factual finding, we AFFIRM the district court’s decision to deny the writ." " While jurors' consultation of a Bible passage providing guidance on punishment for the kind of murder involved was an external influence, no clear and convincing evidence rebutted the presumption of correctness afforded the state court's factual finding of no prejudice; denial of Sixth Amendment habeas relief from the death sentence was affirmed." [via LexisOne]

Terry Lee Hankins v. Quarterman, No. 07-70015 (5th Cir 8/15/208) (unpublished) COA denied on claims that: "(1) the district court erred in denying his ineffective assistance of counsel claims when his counsel failed to properly and adequately present mitigating evidence from Petitioner’s childhood; failed to employ an expert to gather, analyze, and present the mitigating evidence; failed to have Petitioner tested by a qualified forensic psychologist; and failed to object to the court’s jury instruction on mitigation; (2) the district court erred in ruling that the jury instruction on the mitigation issue did not violate the Eighth and Fourteenth Amendments; (3) Article 37.071(2)(e)(1) of the Texas Code of Criminal Procedure, relating to mitigation, is unconstitutional because it does not place a burden of proof on the state; and (4) the lethal injection method of execution used by the State of Texas violates the Eighth Amendment." "In capital case, prisoner was denied COA to appeal rejection of habeas petition because presentation of some but not all mitigating evidence as to his turbulent and abusive childhood was not ineffective assistance under Sixth Amendment; no reasonable probability existed that presentation of other such evidence would have resulted in life sentence." [via LexisOne]

Michael Beuke v. Houk, 2008 U.S. App. LEXIS 17163(6th Cir. 8/13/2008) "Dismissal of a petition for writ of habeas corpus in a death penalty case is affirmed over claims of error regarding whether: 1) petitioner procedurally defaulted fifty-eight of the eighty-eight claims in his habeas petition; 2) petitioner procedurally defaulted his Brady claim; 3) his right to an impartial jury was violated; 4) testimony of a victim's wife at the guilt phase violated his due process rights; 5) denial of a continuance violated his constitutional rights; 6) petitioner received ineffective assistance of counsel; 7) prosecutorial misconduct occurred; 8) the trial court violated his Eighth Amendment rights by instructing the jury not to consider sympathy when issuing its recommended sentence; 9) Ohio's death penalty scheme is unconstitutional; and 10) certain evidentiary motions were improperly denied." [via Findlaw]

Matthew Wrinkles v. Buss, 2008 U.S. App. LEXIS 17150 (7th Cir 8/12/2008) (dissent) Trial counsel provided deficient performance in failing to object to the trial court's order placing a stun belt on their client. The error, however, was harmless on these facts as the record does not indicate jurors observed the stun belt. The dissent notes that this reading of the record borders on silly. " Last state-court decision on point--the post-conviction court decision--held that jurors did not see stun-belt restraint. The court deferred to that finding and agreed with the district court that petitioner suffered no prejudice from his counsels' failure to object to stun belt. Decision denying habeas relief under 28 U.S.C.S. § 2254 was affirmed." [via LexisOne]

Eric John King v. Schriro, No. 06-99006 (9th Cir 8/11/2008) "Denial of a petition for a writ of habeas corpus in a death penalty case is affirmed over claims of error regarding: 1) prosecutorial misconduct by vouching for one witness and implying that another witness was scared of petitioner; and 2) ineffective assistance of counsel at sentencing." [via Findlaw] "Where the appellate court had no control over the state court's proceeding, and it was plain from the witness' own testimony that she was scared of something, the state trial judge's finding that the witness' demeanor showed fear was not based on an unreasonable determination of the facts in light of the evidence presented to the state court." [via LexisOne

Daniel Wayne Cook v. Schriro, 2008 U.S. App. LEXIS 17233 (9th Cir 8/14/2008) "Denial of habeas relief for petitioner convicted of first-degree murder and sentenced to death is affirmed over claims that: 1) his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; 2) his co-defendant's plea agreement violated his right to a fair trial; 3) the prosecutor improperly commented on his failure to testify and his post-Miranda silence; 4) the trial court erred by failing to instruct the jury on second-degree murder; 5) the ineffectiveness of his appellate counsel excused his procedural default of some claims; and 6) the sentencing court failed to consider evidence of intoxication and his prior mental health history as mitigating factors before imposing the death penalty. (Amended opinion)" [via Findlaw] "Denial of habeas petition after an inmate was convicted and sentenced to death under Ariz. Rev. Stat. §§ 13-503 and 13-703 was proper where it was determined that the inmate had knowingly, intelligently, and voluntarily decided to represent himself as required by Faretta, and a co-defendant's plea agreement did not taint the inmate's trial."

Max Landon Payne v. Allen, 2008 U.S. App. LEXIS 17173 (11th Cir 8/13/2008) "In a capital case, denial of a petition for writ habeas corpus challenging the sentence is affirmed where petitioner failed to show a state courts' decision on his ineffective counsel claims was: 1) contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or 2) based on an unreasonable determination of the facts in light of the evidence presented in the Rule 32 proceedings." [via Findlaw] ": 28 U.S.C.S. § 2254 habeas corpus petition was properly dismissed as untimely where it was filed after expiration of one-year limitations period, and equitable tolling was not warranted because attorney's alleged negligence in responding to inmate's inquiries did not constitute extraordinary circumstance warranting tolling, as bad faith was lacking." [via LexisOne]

People v. Keone Wallace, 2008 Cal. LEXIS 9774 (Cal 8/14/2008) "Defendant's death sentence was not grossly disproportionate to his culpability because, in the course of a residential burglary, he beat to death a frail, elderly woman who was particularly vulnerable because of her age and her poor physical condition, and he also attempted to rob and sexually assault her." [via LexisOne] "Conviction and sentence in a death penalty case are affirmed on automatic appeal over claims of error regarding: 1) alleged improper shackling; 2) violation of defendant's right to be present; 3) the right of the victim's step-grandson to attend the trial; 4) rulings on defense challenges for cause; 5) bailiff misconduct; 6) evidentiary rulings; 7) denial of a mistrial motion; 8) a refusal to allow certain impeachment of a witness; 9) prosecutorial misconduct; 10) instructional error; 11) insufficiency of the evidence; 12) improper admission of aggravating evidence; 13) alleged intimidation of the foreperson by a defense witness; 14) prosecution rebuttal; 15) denial of an automatic application for modification of the death verdict; 16) the constitutionality of the death penalty law and instructions; 17) international law; 18) the proportionality of the sentence; and 19) cumulative error." [via Findlaw]

People v. Jackie Ray Hovarter, 2008 Cal. LEXIS 9705 (Cal 8/11/2008) "In a capital murder case, defendant's motion to exclude testimony from a jailhouse informant was properly denied. The informant's testimony was not so inherently incredible, so contrary to teachings of basic human experience, or so completely at odds with ordinary commonsense, that no reasonable person would believe it beyond a reasonable doubt." [via LexisOne] "In an automatic appeal in a death penalty case, the conviction and sentence are affirmed over claims of error regarding: 1) admission of evidence of a jailhouse informant's testimony; 2) admission of evidence of defendant's crimes against another victim; 3) admission of statements made to the other victim; 4) admission of certain company log sheets; 5) the sufficiency of the evidence; 6) jury instructions during the guilt and penalty phases; 7) defendant's jury waiver for a penalty phase retrial; 8) whether the death penalty violates international law; 9) constitutional challenges to the death penalty; and 10) cumulative err." [via Findlaw]

People v. John Mungia, 2008 Cal. LEXIS 9773 (Cal 8/14/2008) "Torture-murder special circumstance under Pen. Code, § 190.2, subd. (a)(18), was not supported by sufficient evidence, despite pain caused by battering the victim, because a finding of intent to torture was not supported by testimony that defendant intended to kill the victim to avoid being identified, by nature of the wounds, or by binding victim. " [via LexisOne] Torture-murder special-circumstance finding vacated for lack of evidence. "Conviction and sentence in a death penalty case is vacated as to a torture-murder special-circumstance finding, which was supported by insufficient evidence, but otherwise affirmed on automatic appeal over claims of error regarding: 1) denial of continuance requests and removal of the public defender as counsel; 2) the appointment of another attorney; 3) denial of a Marsden motion; 4) admission of evidence; 5) jury instructions; 6) denial of an automatic application to modify the verdict; 7) the constitutionality of the death penalty; 8) international law; and 9) cumulative error." [via Findlaw]

State v. Luis G. Cabrera, 2008 Del. Super. LEXIS 289 (Sup. Ct Del. 8/14/2008) Motion for postconviction access to discovery is denied.

(Initial List) Week of August 18, 2008 – In Favor of the Defendant or the Condemned

Jesse Bond v. Beard, 2008 U.S. App. LEXIS 17726 (3rd Cir 8/20/2008) Trial counsel failed to adequately investigate Mr. Bond's social history. Trial "[c]`ounsel for Bond failed to meet this constitutional minimum. Had they investigated Bond’s background and mental health, they would have presented a starkly different picture of Bond to the jury at the penalty phase than the one they actually presented. A reasonable lawyer who understood Bond’s life history would not have proceeded on the theory that he had led a productive life before going on a crime spree as a result of a series of disappointments. Such an attorney instead would have presented evidence to the jury of Bond’s abusive and neglectful family life, his low intelligence, and his psychiatric and psychological problems. There is a reasonable probability that this different course, even in the face of competing expert testimony introduced by the Commonwealth, would have resulted in the imposition of a life sentence."

Jasper N. McMurtrey v. Ryan, 2008 U.S. App. LEXIS 17821 (9th Cir 8/21/2008) "We hold that McMurtrey's memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey's mental competence to stand trial. The state trial court's failure to conduct a competency hearing at that time violated McMurtrey's due process rights. The retrospective competency hearing held thirteen years after trial was insufficient to cure this due process violation. Accordingly, we AFFIRM the district court's decision to grant McMurtrey's habeas petition on this ground. Because this issue is dispositive, we need not address the remaining issues on appeal or on cross-appeal."

Reginald Jells v. Mitchell, 2008 U.S. App. LEXIS 17550 (6th Cir 8/18/2008) "Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s background in preparation for mitigation. The Ohio Court of Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of professionally competent assistance constituted an unreasonable application of federal law as determined by the Supreme Court in Strickland."

Michael Rosales v. Quarterman, 2008 U.S. App. LEXIS 17964 (5th Cir 8/19/2008) (unpublished) Certificate of Appealability granted on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia.

Jeffrey Woods v. Quarterman,Civ No. SA-01-CA-423-OG (WDTex 8/21/2008) Ford stay. "With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

(Initial List) Week of August 18, 2008 – In Favor of the State or Government

Robert Lee Thompson v. Quarterman, 2008 U.S. App. LEXIS 17949 (5th Cir 8/19/2008) (unpublished) COA denied on a request for "a COA on each of the 15 issues raised in his federal petition. He also maintains the district court erred in denying his motions to expand the record with certain unspecified documents, and for discovery, an evidentiary hearing, and a stay."

Comm. v. Thomas. W. Hawkins, 2008 Pa. LEXIS 1292 (PA 8/19/2008) Giglio violation was not timely raise. Court holds despite the factual basis of that claim only being discovered after the one year state statute of limitations for post-conviction petitions, facts sufficient to plead the claim were learned prior to the discovery of the facts sub judice. "Therefore, appellant has not established his claim falls within either the newly discovered evidence exception or the governmental interference exception to the PCRA’s timeliness requirements."

State v. Dale Wayne Eaton, Nos. 04-180 & 06-255 (Wyo 8/18/2008) We're still digesting this physically HUGE opinion. More on the daily blog this week.

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Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts.