Hamilton was constitutionally entitled to effective representation at the penalty phase of his capital trial, but he did not receive it. His counsel failed to investigate a substantial amount of available mitigating evidence concerning Hamilton’s horrific childhood and mental illness, and thus could not possibly have made a strategic decision as to a mitigation defense.. . . “[C]ounsel’s duty is not discharged merely by presenting some limited evidence. Rather, a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” It is difficult to imagine a more significant discrepancy than that between the portrait painted at the penalty phase of a man whose childhood was “unfortunate” but largely unmarred, and that of a child who was raised in the presence of incest, rape, and violence, suffered from mental illness, and was shuffled from home to home. Although this classic mitigating evidence was available to defense counsel at the time of trial, it was only revealed years after Hamilton was sentenced to death. We therefore hold that Hamilton was denied effective assistance of counsel. (emphasis added)

• Timothy Lee Hurst v. State, 2009 Fla. LEXIS 1558 (FL 9/17/2009) The Court granted Mr.  Hurst relief as trial counsel failed to present evidence that inclued his low IQ, borderline intellectual functioning and possible brain damage due to fetal alcohol syndrome.

• Alfredo Prieto v. Commonwealth, 2009 Va. LEXIS 94 (Va 9/18/2009) Relief granted "upon the insufficiency of the verdict forms to provide the jury the specific option to impose a life sentence even if the jury finds both aggravating factors proven, and based upon the insufficiency of the verdict forms to require the jury to unanimously find beyond a reasonable doubt one or both aggravating factors to impose a sentence of death.. . ."

• Michael Allen Hamilton v. Ayers, No. 06-99008  (9th Cir 9/18/2009) Relief granted on trial counsel’s penalty phase performance:

• Delma Banks Jr v Thaler, No. 08-70019-CV0 (5th Cir 09/18/2009) (dissent) "In this third proceeding in our court, the State contests the district court’s on-remand April 2008 Brady-based grant of habeas relief for Banks’ conviction. The district court concluded, inter alia: habeas relief should be granted because the State failed to disclose the Cook transcript to Banks for use in his trial. Because Brady’s materiality prong is not satisfied, the habeas relief for Banks’ conviction is VACATED. The Court’s grant of habeas relief for Banks’ sentence is, of course, not affected by this opinion. This matter is remanded to district court for further proceedings consistent with this opinion. Vacated in part and remanded." Vacateur of death sentence remains.
  

• Reginald Lewis v. Horn, 2009 U.S. App. LEXIS 20451 (3rd Cir 9/14/2009) "District court's grant of defendant's petition for habeas relief from his death sentence is vacated and remanded as the district court erred in its analysis of the performance prong of Strickland and this error alone requires a reversal. However, defendant is entitled to an evidentiary hearing to develop the record in support of his penalty phase ineffective assistance of counsel claim. District court's conviction of defendant is affirmed where: 1) defendant's Batson claim is rejected as it lacks merit; 2) defendant's guilt phase ineffective assistance of counsel claim is rejected; and 3) defendant's Brady claim is rejected as there can be no Brady violation where the prosecution did not have custody of a bus ticket and where it would not have provided exculpatory evidence. [via Findlaw]

• Gerald James  Holland v. Anderson, 2009 U.S. App. LEXIS 20769 (5th Cir 9/18/2009) "In a capital habeas matter, denial of petitioner's petition is affirmed where, although petitioner had the constitutional right to introduce evidence of the circumstances of his capital murder for the resentencing jury to consider as mitigation, the evidence petitioner sought to introduce was not evidence of the circumstances of his capital crime." [via FindLaw]

• Joshua Maxwell v Thaler, No. 08-70039.0 (5th Cir 09/18/2009) "Maxwell challenges the jury instructions submitted at both the guilt-innocence and punishment phases of trial. He also contends that his counsel rendered ineffective assistance by failing to object to the allegedly unconstitutional instructions. Finding that Maxwell has not made a substantial showing of the denial of a constitutional right, we DENY a COA."

• In re Christopher Coleman,  2009 U.S. App. LEXIS 20720 (5th Cir 9/16/2009) (unpublished) Successive petition and stay requests denied where Mr. Coleman's Brady claim indicates new evidence of witness bias may have been found but he failed to present evidence that the State suppressed that evidence.
  

• Newman v. State,  2009 Ark. LEXIS 544,   (Ark 9/17/2009) As Appellant is represented by counsel the pro se motions are denied.

• Gregory Thompson v. Bell, 2009 U.S. App. LEXIS 20246 (6th Cir. 9/11/2009) The district court erred when it  denied Thompson's Rule 60(b) motion and his habeas petition based upon competency to be executed, as well as certain ineffective assistance counsel claims.  "On remand, the district court shall first rule on the merits of Thompson's remaining ineffective assistance claims, and shall only address the incompetency question if it rejects the ineffective assistance claims on their merits. If the court rejects the ineffective assistance claims, it must then conduct an evidentiary hearing to determine Thompson's competency for execution."

• Robert Simon Jr. v. Epps, 2009 U.S. App. LEXIS 20102 (5th Cir 9/9/2009) (unpublished) COA granted on  ineffective assistance at sentencing. Briefing ordered on whether "1. Under Strickland, was it deficient performance for Simon's trial counsel not to investigate Simon's history of familial abuse? 2. If the jury had heard evidence of Simon's  history of familial abuse, is there a reasonable probability that it would not have returned a sentence of death? 3. Considering that neither the Supreme Court of Mississippi nor the district court held an evidentiary hearing to determine the actual contours of Simon's trial counsel's investigation, what must we assume for the sake of this appeal? Further, if we find Simon's claims to be meritorious, should we remand his petition to the district court for an evidentiary hearing?"

• Ernest Simmons v. Beard, No. 05-9001 (3rd Cir 9/11/2009) New trial ordered in light of numerous Brady violations.
  

• Viva Leroy Nash v. Ryan, No.  06-99007 (9th Cir 9/11/2009) "The State [ ] argues that, given the record-based nature of an appeal, the statutory right to competence should not apply to an appeal. We do not read Rohan as so limited. While an appeal is record-based, that does not mean that a habeas petitioner in a capital case is relegated to a nonexistent role. Meaningful assistance of appellate counsel may require rational communication between counsel and a habeas petitioner" "Nash’s rapidly deteriorating mental condition leads us to conclude that the precise issue we consider here - whether Nash is competent to pursue the ppending appeal of the district court’s denial of his habeas petition. . .." "[W]e grant the pending motion for a limited remand. On remand, we direct the district court to conduct appropriate proceedings to determine whether Nash is competent to communicate rationally"
  

• Edward Harold Schad v. Ryan, No. 07-99005 (9th Cir 9/11/2009) District court erred in denying an evidentiary hearing on Petitioner's sentencing ineffectiveness claim; "remand for the district court to consider, using the proper standard, whether Schad was diligent in pursuing state court relief, and if so, to hold a hearing on the merits of his ineffectiveness claim."  Guilt phase Brady claim, State's failure to produce letters written by the prosecutor on behalf of a government witness, resulted in little prejudice and therefore relief denied.
  

• Billy John Galloway v. Thaler, 2009 U.S. App. LEXIS 20098 (5th Cir 9/9/2009) (unpublished) "Galloway alleges he received ineffective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence during the punishment phase of trial. The district court held that Galloway had not shown deficient  performance of counsel and prejudice resulting therefrom. Because jurists of reason would not find debatable the district court's ruling, Galloway's application for a COA is DENIED."

• Martin Robles v. Thaler, 2009 U.S. App. LEXIS 20070 (5th Cir 9/8/2009) (unpublished) COA denied on claims pertaining to (a) procedural default of state constitutional law claims; (b)  that the mitigation instruction placed an unconstitutional burden on the defense; and (c) "the mitigation special issue violated his constitutional rights, because its phrasing could confuse the jury and render them incapable of giving effect to mitigating evidence."
  

• Richard Fairchild v. Workman,  2009 U.S. App. LEXIS 19929 (10th Cir 8/31/2009) Remand ordered as "Mr. Fairchild's ineffective assistance of counsel claim is unexhausted and [ ] the district court should [have] determine[d] in the first instance whether it is appropriate to stay and abate the action on the petition in order to give Mr. Fairchild an opportunity to exhaust this claim. Accordingly, we VACATE the district court's judgment and REMAND to the district court to make the stay-and-abeyance determination and to conduct further proceedings consistent with this opinion. We do not reach the merits of Mr. Fairchild's other appellate claims.

• Benny Lee Hodge v. Haeberlin, 2009 U.S. App. LEXIS 19968  (6th Cir. 9/4/2009) (dissent) "The district court properly denied habeas corpus in this case because petitioner Benny Lee Hodge has not shown that his trial counsel rendered ineffective assistance. A jury convicted Hodge and sentenced him to death for his role in a 1985 double murder. Hodge advances numerous claims of ineffective assistance of counsel, including a claim that counsel prevented Hodge from testifying on his own behalf and that counsel ineffectively cross-examined the prosecution's key witness. Because the record does not show that any alleged mistake by Hodge's counsel meets the standards for deficient performance and prejudice established by Strickland v. Washington, Hodge is not entitled to habeas relief."

• Romell Broom v. Strickland, 2009 U.S. App. LEXIS 19622  (6th Cir. 9/1/2009) Relief denied on district court's " dismissal of his 42 U.S.C. § 1983 challenge to Ohio's method of execution."

• State ex rel John E. Winfield v. Roper, 2009 Mo. LEXIS 384 (Mo 9/1/2009)  "Winfield now seeks a writ of habeas corpus, alleging that, during the penalty phase of his trial, the jury improperly was directed to continue deliberating after it indicated it was deadlocked. This Court appointed a special master, who heard testimony from the trial judge, all the trial jurors, the bailiff from the trial and others and who subsequently filed a report concluding the jury did not advise that it was deadlocked on whether to impose a sentence of death or life in prison and that it was not instructed to continue deliberating." [via Clerk of Court supplied summary]
  

• State v. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009)  Relief denied on claims that "the district court erred in failing to grant him a new trial or, at a minimum, hold an evidentiary hearing to determine (1) whether Nissen gave perjured testimony at Lotter’s trial and (2) whether the prosecution knew or should have known about N Nissen’s perjury at the time of Lotter’s trial. Lotter asserts that the district court also erred in not granting postconviction relief on the ground that his testimony was coerced by the threat of cruel and unusual punishment."

• James Delano Winkles v. State,  2009 Fla. LEXIS 1414 (FL 9/3/2009) "Winkles argues that the postconviction court should have determined that trial counsel provided ineffective assistance by (A) advising Winkles to plead guilty and to waive a penalty-phase jury in the hope that if he were sentenced to death, the sentences would be reversed pursuant to Ring; and (B) failing to present a mental health expert and Winkles‘ uncle, James C. Winkles (J.C.), as penalty-phase witnesses."

• Tavares J. Wright v. State, 2009 Fla. LEXIS 1416 (FL 9/3/2009) "In this direct appeal, Wright challenges one aspect of the guilt phase and three aspects of the penalty phase, as follows: (1) whether the trial court erred in admitting collateral-crime evidence as inextricably intertwined with the offenses on trial, which Wright contends became a feature of the trial that rendered the probative value of this evidence to be substantially outweighed by its prejudicial effect; (2) whether the trial court erred in denying Wright‘s motions to declare Florida‘s capital-sentencing scheme unconstitutional pursuit to Ring v. Arizona, 536 U.S. 584 (2002); (3) whether the trial court erred in finding that the murders were committed in a cold, calculated, and premeditated manner; and (4) whether the trial court erred in finding that the dominant purpose for committing the murders was witness elimination to avoid arrest. We conclude that Wright has not demonstrated a basis for relief on any of these issues and that sufficient evidence supported each of the death sentences, which we further hold are proportionate punishments for Wright‘s capital convictions."

• State v. James Were, n.k.a. Namir Abdul Mateen, 2009 Ohio App. LEXIS 3825 (Ohio 1st App 9/2/2009) Relief denied holding that the court below did not err when "it adopted the state’s findings of fact and conclusions of law;" (b) denied claims "(1) that R.C. 2953.21 et seq. is unconstitutional because it does not provide “an adequate corrective process,” and (2) that he had been denied meaningful postconviction review as a consequence of an incomplete trial record; (c) it "denied petitioner’s postconviction claim contending that the administrative sanctions imposed on him by the Ohio Department of Rehabilitation constituted punishment for the same conduct that had led to his aggravated-murder and kidnapping convictions" (d) Batson; (e) "denied as unsupported petitioner’s postconviction claims alleging (1) grand-jury bias, (2) the denial of his right to consult privately with counsel, (3) judicial bias, (4) impermissible contact between the trial court and the jury, (5) prosecutorial misconduct by suborning perjured testimony and withholding material evidence, (6) trial counsel’s ineffectiveness in failing to raise these matters, and (7) other inadequacies in trial counsel’s preparation and presentation of his case at the guilt and penalty phases of his trial and at his mental-retardation hearing, including counsel’s failure to request experts, to advance alternative-killer defenses, to effectively cross-examine state’s witnesses, and to effectively challenge state’s experts;" (f) trial court's use of a stun belt; (g) actual innocence; (h) cumulative error; and (i) denial of discovery." [via  Clerk's Office summary]

• State v. John L. Lotter, 2009 Neb. LEXIS 145 (Neb 9/4/2009)  Relief denied on claims that "the district court erred in failing to grant him a new trial or, at a minimum, hold an evidentiary hearing to determine (1) whether N Nissen gave perjured testimony at Lotter’s trial and (2) whether the prosecution knew or should have known about N Nissen’s perjury at the time of Lotter’s trial. Lotter asserts that the district court also erred in not granting postconviction relief on the ground that his testimony was coerced by the threat of cruel and unusual punishment."

• Michael Lee Wilson v. Workman & Donald Wackerly v. Workman, Nos. No. 06-5179,  07-7034 & 07-7056 (10th Cir 8/28/2009) (en banc) (dissent) The Circuit en banc holds, in relation to whether or not an "adjudication on the merits,"  that the Wilson panel was correct in applying de novo review  and incorrect in Workman in not examining the issues de novo. The opinion is a highly technical analysis of Oklahoma's rules of procedure and the nature of the deference due certain claims. Specifically, "[w]hen the OCCA, pursuant to Rule 3.11, refuses to grant an evidentiary hearing to consider material, non-record evidence of ineffective assistance of counsel that the defendant has diligently sought to develop, and then rules on the ineffectiveness claim without consideration of this evidence, the OCCA’s denial of the claim is not an adjudication on the merits to which the federal courts owe AEDPA deference."

• Howard Dean Goodin v. State, No. 2007-CA-00972-SCT; (Miss 8/27/2009) The Court below failed to follow the mandate, "through no fault of the trial court," from the Court's prior order in this matter.  "This case is remanded to the Circuit Court of Newton County for a full evidentiary hearing and ruling on the following issues: (1) mental retardation; (2) ineffective assistance of counsel on the issue of mental illness and (3) ineffective assistance of counsel on the issue of competency."

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