that the section of the Antiterrorism and Effective Death Penalty Act (AEDPA) [28 USC § 2254 text] limiting federal review of state court decisions to decisions resulting from an unreasonable application of the law or an unreasonable determination of the facts is applicable to state court orders issued without an accompanying explanation. In an 8-0 decision, the court held that, where a state court's decision is not accompanied by an opinion stating the court's reasoning, the petitioner seeking habeas corpus relief still bears the burden of proving there was not reasonable basis for the state court to deny relief. In its decision, the court also reaffirmed the standard established in Strickland v. Washington for determining the effectiveness of assistance of counsel at trial. The court held that, in order for a person to be successful on a claim of ineffective assistance of counsel, they must prove that their representation "fell below an objective standard of reasonableness" and that the failure of counsel resulted in prejudice. During oral arguments, the respondent argued [JURIST report] that defense counsel's reliance on cross-examination in lieu of forensic evidence violated his Sixth Amendment right to effective assistance of counsel. Justice Anthony Kennedy, writing for the court, rejected the petitioners argument stating that there are "countless ways to provide effective assistance in any given case" and that counsel is given wide latitude to make "tactical decisions" and still remain within the "wide range of reasonable professional assistance." Justice Ruth Bader Ginsburg authored a concurring opinion in which she stated that she did not believe the defense counsel provided the assistance guaranteed by the Sixth Amendment, but that counsel's lapse was not "so serious as to deprive Richter of a fair trial."

reversed a Ninth Circuit grant of habeas relief  for ineffective assistance of counsel. Respondent Randy Moore filed the petition for relief on the basis that defense counsel failed to move to suppress a confession that may have been obtained illegally prior to advising him to accept a plea agreement. In an 8-0 decision, the court again applied the Strickland standard, holding that the defense counsel's representation was objectively reasonable. The court stated that it was reasonable for the state court to accept the defense counsel's explanation that a motion to suppress would have been pointless in light of additional admissible statements of guilt by Moore. The court also rejected the Ninth Circuit's application of Arizona v. Fulminante to the instant case, stating that Fulminante cannot be read as applying to the Strickland standard of effectiveness of counsel. Ginsburg wrote a concurring opinion in the case. 

Also from the Supreme Court, the "Court agreed on Monday to clarify when prison or jail officials must give an inmate warnings about his rights under Miranda v. Arizona, when they take the prisoner out of a cell for questioning about another crime, [ ] Howes v. Fields (10-680)." In a second matter "the Court will decide whether an individual convicted of violating a 2006 federal sex offender law has a right to go to court to challenge the U.S. Attorney General’s decision to apply that law to those who were convicted of sex crimes before the law’s enactment, [ ] Reynolds v. U.S. (10-6549).

The Supreme Court last Tuesday denied cert & lifted the stays discussed last week concerning Cleve Foster and Gayland Bradford. from Texas.  The issue before the court was ineffective assistance of counsel and state postconviction remedies. The Court also denied cert on a similar claim in Daniel Cook v. Arizona, 10-7210.

In the lower courts, the Sixth Circuit returned to an old favorite in Michael Goodwin v. Johnson: counsel who fails to do a substantial mitigation investigation and relies on the red herring of lingering doubt.  "[T]rial counsel chose to rely on residual doubt without conducting an adequate investigation of Goodwin’s background." However,  "[h]ad Goodwin’s counsel interviewed Goodwin’s family, they would have learned that he was neglected by his drug-using mother and physically and sexually abused by others. Had they examined his school records, they would have learned about his poor school performance and low IQ. Had counsel examined Goodwin’s juvenile court records, they would have learned of his psychological problems and how his chaotic home life contributed to his delinquency. All of this information, in turn, would have suggested the need to have Goodwin psychologically evaluated." Further "[a]fter reweighing the evidence in aggravation against the powerful mitigating evidence that was never presented to the jury, we find that it was objectively unreasonable to find that Goodwin was not prejudiced by his trial counsel’s performance. Instead, it is reasonably probable that at least one juror would have voted against death had defense counsel presented the new mitigation evidence."

In the news, Hospira has stopped manufacturing sodium thiopental; while the long term effects are unknowable, in the short term the decision has caused some doubt about the ability of at least a few states to execute.  As DPIC notes,  Leroy White was executed in Alabama on January 13 despite the fact that his trial jury recommended life and that the prosecution, as well as  members of the victim's family, had sought a different sentence.

SCOTUS

• Premo v. Moore, No. 09-658 (1/19/2011) “Inmate was not entitled to habeas relief under 28 U.S.C.S. § 2254(d) based on ineffective assistance of counsel; it was not unreasonable to find that counsel did not perform deficiently by failing to move to suppress a confession before advising the inmate to plead guilty or to find no prejudice in light of a second, admissible confession.” [via Lexisone]

• Harrington v. Richter, No. 09-587  (1/19/2011) “A judgment granting habeas relief was reversed because the California Supreme Court’s decision on the merits of a habeas petitioner’s claim of ineffective assistance of counsel under the Sixth Amendment required more deference than it had received. He was not entitled to the habeas relief ordered by the U.S. Court of Appeals for the Ninth Circuit.” [via Lexisone]

• Swarthout v. Cooke, 10-333 (1/24/2011) Habeas review of state parole decisions are merely to guarantee whether procedural due process has been followed and not whether the correct decision was reached.
  

Week of January 17, 2011:   In Favor of the Accused or Condemned

• Michael Goodwin v. Johnson,  2011 U.S. App. LEXIS 1185; 2011 FED App. 0017P (6th Cir. 1/21/2011)  Trial counsel relied upon lingering doubt in the penalty phase without conducting a meaningful investigation into other potential mitigatory evidence. “The wealth of affidavits and new information presented in collateral proceedings show that, while Goodwin’s trial counsel were aware of some limited information, they failed to conduct an investigation that would have quickly revealed much more powerful mitigation evidence—information that was necessary to make a reasonable professional judgment as to whether to present a mitigation defense.  It was objectively unreasonable for the state court to conclude that this evidence was substantially similar to evidence presented on direct appeal, and to conclude, after examining the wealth of new mitigating evidence that Goodwin’s trial counsel failed to discover, that their performance was adequate. Instead, it is clear that the assistance of counsel Goodwin received in the penalty phase fell below the acceptable standard.” I should also note “[t]he district court permitted discovery and held an evidentiary hearing on Goodwin’s ineffective assistance of counsel claim.”

Week of January 17, 2011:   In Favor of the Prosecution or Warden

• Samuel Villegas Lopez v. Ryan,  2011 U.S. App. LEXIS 1063 (9th Cir 1/20/2011)  Relief denied on claims that  ”he was denied an individualized sentencing determination because of thenbinding Arizona law requiring that mitigating evidence be causally related to the crime; . . . that his attorney at his resentencing rendered ineffective assistance of counsel by failing to furnish his psychiatric expert with eyewitness testimony and background information necessary to an assessment of pathological intoxication, “a condition, quite rare, in which an individual exhibits sudden and unpredictable behavior very shortly after ingesting a very small amount of alcohol[;]  [and] that, in violation of the Fourteenth Amendment’s Due Process Clause, the government suppressed exculpatory evidence regarding an unrelated sexual assault arrest.”

• Comm v James Dennis, 2011 Pa. LEXIS 96 (PA 1/18/2011)  Relief denied as the findings of the postconviction court below were supported by the record Specifically, trial counsel was not ineffective for failing to investigate and present a certain alibi witness and Mr. Dennis can not prove materiality from a certain police activity sheet as he was identified by three separate individuals and not just the one to whom the activity log pertained.

• Comm v. Dustin Ford Briggs,  2011 Pa. LEXIS 107 (PA 1/19/2011) (dissent) Relief denied on claims including admission of statements attributed to the condemned that were made after he asserted his right to counsel,  jury selection (failure to remove certain jurors for cause & moving the jury selection from the Court of Common Pleas to a nearby district court (magistrate’s court) in light of a bomb threat, limitations placed on cross-examinations of various witnesses, limitations placed on compulsory service of favorable witnesses,  jury instructions (failure to give accomplice testimony instruction and giving an instruction on implied) adoptive admission, method of execution, and statutory review.

• Alex Blueford v. State,  2011 Ark. LEXIS 7;2011 Ark. 8 (Ark 1/20/2011) Relief denied on claims arising from  ”the Fifth Amendment’s double-jeopardy provision, as well as Arkansas’s double-jeopardy statutes, barred his retrial on the capital-murder charge and the lesser-included offense of first-degree murder. In support of his motions, he argued that the jury forewoman’s announcement in open court that the jury had found him not guilty on those two charges amounted to an acquittal, such that he could not again be tried on those charges.”

• People v. Richard Lonnie Booker, 2011 Cal. LEXIS 465 (CA 1/20/2011)  “Conviction of defendant for first degree murders, arson, and attempted murder and sentences of death for each murder, is affirmed over defendant’s challenges to: 1) trial court’s failure to initially swear in grand jurors; 2) asserted Witt/Witherspoon error; 3) asserted Batson/Wheeler error; 4) trial court’s failure to determine racial bias of jurors; 5) admission of crime scene photographs; 6) sufficiency of the evidence; 7) lack of jury instruction on necessity of a live victim; 8) lack of jury instruction on lesser included offense of manslaughter; 9) asserted prosecutorial misconduct; 10) cumulative error; 11) admission of evidence of uncharged violent criminal conduct; 12) admission of victim impact evidence; 13) trial court’s refusal to instruct the jury on age as a mitigating factor; and 14) the constitutionality of California’s death penalty scheme.” [via Findlaw]

• People v. Bernard Albert Nelson, 2011 Cal. LEXIS 463 (CA 1/20/2011) Conviction of defendant for first degree murder, robbery, and attempted carjacking, and a sentence of death are affirmed where: 1) defendant’s claim that the evidence is insufficient to support his convictions for the crimes and the special circumstance finding are without merit; 2) trial court did not err in admitting a handwritten “script” giving defendant an alibi for the attempted murders; 3) the trial court did not err in refusing defendant’s request to instruct on lesser related offenses; 4) the trial court did not err during voir dire regarding the penalty deliberations; 5) trial court did not err in admitting corroboration of aggravating evidence; 6) trial court did not err in overruling defendant’s objections to victim impact evidence; 7) trial court did not err in admitting defendant’s rap lyrics as aggravating evidence; 8) defendant’s challenges to the death penalty law and instructions are meritless; and 9) trial court did not err in imposing a $10,000 victim restitution fine.” [via Findlaw]

• Roger Lynn Loyd v. State,  2011 Ga. LEXIS 15 (GA 1/10/2011) Relief denied on claims arising from the “the sufficiency of the evidence to support the three statutory aggravating circumstances found by the trial court;” statutory review; failure to grant a continuance; whether the guilty plea made in the middle of jury selection was“knowingly and voluntarily” because he was “totally stressed out” and not “thinking straight.”

• State ex rel Lykos v. Hon. Fine, 2011 Tex. Crim. App. LEXIS 1 (Tex. Crim. App. 1/12/2011) (dissent) Writ of prohibition granted to prevent a formal pretrial hearing on the constitutionality of the Texas death penalty.

• John Stephenson v. Wilson, 2011 U.S. App. LEXIS 700 (Ind 1/14/2011) Relief denied as “ (1) Stephenson’s freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson’s claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel’s errors and omissions; (4) Even if Stephenson’s trial counsel’s failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed; (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-30-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence;   (6) Because Stephenson’s claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson’s convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury’s exposure to various extraneous influences; and (8) The post-conviction court’s conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed.”
  

Other

• Commonwealth v. Gautreaux,  SJC-10713 (Mass 1/20/2011) "The Massachusetts Supreme Judicial Court ruled [ ] that under international law foreign criminal defendants in the state of Massachusetts, both legal and illegal, have the right to be in contact with their home country's embassy or consulate.. . ." [via Carpe noctem]

• Yakima Co. v. Yakima Herald-Republic, 2011 Wash. LEXIS 76 (Wash 1/13/2011)  Local paper tries to figure out the cost of indigent defense in a capital case by filing an open records request. “[D]ocuments prepared by court personnel in connection with court cases and maintained by the court are judicial documents governed by GR 15. Further, we hold that such documents, when transferred to nonjudicial county entities, are governed by the PRA unless they are subject to an additional protective order. We also hold that a trial court has jurisdiction to consider a motion to unseal court documents and is not required to seek permission from an appellate court pursuant to RAP 7.2 when the sealing order will not impact a separate decision on appeal, and that a limited intervention by a third party in a criminal case is a proper procedure after trial has ended. In the interests of judicial economy, we remand to the trial court to determine whether continued sealing of these financial documents is proper pursuant to GR 15(e), given the current posture of the criminal case.”

• U.S. v. Doss, No. 07-50334 (9th Cir 1/14/2011) “In an appeal from convictions for sex trafficking of children, transportation of minors into prostitution, conspiracy, and two counts of witness tampering, the 9th affirms most convictions. However, importantly, it reverses one count of witness tampering. The defendant had asked his spouse to assert her marital privilege. This request was not corrupting. The 9th sides with the 3rd Circuit on this, and is opposite the approach of the 2nd and 11th Circuits. The 9th does get support from dicta in the Supremes’Arthur Anderson decision as to privileges, 544 U.S. at 703-04. The 9th also vacated the life sentences in the sex trafficking with minors to allow the court (it was a bench trial) to determine if the prior sex offense (pandering under a Nevada statute) involved a minor under the federal definition. This is an Apprendi fact enhancement.” [via the Ninth Circuit Blog]