This week’s email edition is now available.

This edition leads off with  Eric Lynn Moore v Quarterman from the Fifth Circuit sitting en banc. Turning it over to the experts at the  Habeas Assistance and Training Counsel project, the Moore Court held that:

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criteria that must be pled in an Atkins petition, nor had such criteria become evident in practice, arising from the unpublished disposition of similar petitions.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.

[via CDN Week - at - Glance]

Elsewhere, the Texas Court Criminal Appeals granted a new trial in Ex parte Michael Blair as DNA strongly suggests Blair did not commit the murder for which he now sits on death row; Blair is also doing a life sentence for an unrelated crime so there is no chance he will be released.he Fourth Circuit in  Robert Gray, Jr. v. Branker grants relief holding that “counsel ignored [ ] red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue. The Ninth Circuit in Henry Earl Duncan v. Ornosk grants relief on the failures of counsel in investigating at the special circumstance phase of the trial. Finally, the Nevada Supreme Court grants a writ of mandamus in Eugene Hollis Nunnery v. Eighth Judicial District Court as conspiracy to commit robbery is not an aggravating circumstance under that state’s capital sentencing scheme.

North Carolina death row inmate Guy Tobias LeGrande has been found incompetent to be executed under both state law and the 8th Amendment of the United States Constitution, as interpreted by Ford v. Wainwright and Panetti v. Quarterman. More to follow.  The decision is here and a press release is here. [Thanks to DWNC]

In the news, the UN Special Rapporteur has released a report on the United States & the death penalty  human rights report singling out Texas and Alabama. The California Commission on the Fair Administration of Justice has issued its final report and recommendations on that state’s use of the death penalty. Lester Bower’s scheduled execution has been stayed, as the Fort Worth Star-Telegram reported, “Witness says condemned Arlington man isn’t responsible for 1983 slayings.  Killing States: Lethal Decision/Final Judgments, is the latest issue of South Atlantic Quarterly from Duke University. Scientific American reports, “Who Will Die? Computer Predicts Which Death Row Inmates Will Be Executed.”  Dallas County has another noncapital exoneration. Paul House has been freed on bail in Tennessee. In North Carolina last week more than 300 clergy members signed onto a letter sent to lawmakers urging the passage of the North Carolina Racial Justice Act, a bill giving capital murder defendants the right to challenge prosecutions on grounds of racial bias; the bill passed in the North Carolina House in 2007.

Looking ahead, the Fifth Circuit in Michael Wayne Hall v. Quarterman, No. 06-70041 (5th Cir 6/30/2008) Panel rips in to the CCA on the failure to hold a live evidentiary hearing on Hall’s Atkins claim.   The Georgia Supreme Court in Mark Hall v. McPherson, gives a how to lesson for ineffective assistance of counsel claims, including use of  both American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and the Southern Center for Human Rights Defense Manual in evaluating counsel’s performance.  Finally,  the Ohio Court of Appeals (Seventh District) in  State v. Terrance Tate affirms the grant of a motion to suppress as the defendant was in custody, at a police station, was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking.

In last week’s edition Dale Leo Bishop was listed as having an execution date prior to the date actually being set.  Mr. Bishop is scheduled for execution on July 23.  Since Baze the data we use for the reporting of execution dates has been less than satisfactory, hopefully by the end of summer the quality of our sources will be back to their pre-Baze levels of accuracy.

Special thanks go out to Steve Hall & Stand Down Texas, from whom the majority of this week’s news update is taken. As always, thanks for reading, and my apologies for the large number of typos & the abbreviated nature of this edition as I start a two week trial in the morning. – k