For the Week of: 4/27/2008 Ninth Circuit reverses grant of sentencing relief to California death row inmate On May 2, 2008, the Ninth Circuit (Tallman, with Kozinski concurring; partial dissent by Fisher) reversed a grant of habeas relief to Scott Pinholster as to his death sentence and affirmed the denial of relief as to his capital conviction. Pinholster v. Ayers, ___ F.3d ___, 2008 WL 1914699 (9th Cir. May 2, 2008). In finding that Pinholster was entitled to relief on his claim of ineffective assistance of counsel at sentencing, the district court had concluded that § 2254(d) did not apply to the claim because the California Supreme Court’s summary denial of it did not constitute an adjudication on the merits. This was found by the panel to be error under circuit precedent. The panel did reject the warden’s contention that the claim was unexhausted as a result of additional evidence presented by Pinholster in federal court. It explained: “Though during the proceedings Pinholster relied on different experts with differing mental impairment theories, the evolving theories have not significantly changed the evidentiary basis for his arguments. These experts relied on the same background information Pinholster presented to the state court, and their testimonies represent only a fragment of the mitigating evidence submitted in the state habeas proceedings. Accordingly, the facts adduced at the evidentiary hearing have not fundamentally altered the legal claim the California Supreme Court already considered and rejected . . ..” As for the warden’s argument that the district court abused its discretion by holding an evidentiary hearing on the claim given Pinholster’s shifting medical impairment theories and new lay witness declarations, the panel found the argument waived because it was not raised in the warden’s opening brief. In addition, because the panel majority found that Pinholster was unable to demonstrate prejudice even considering the evidence developed at the hearing, any error by the district court in this regard was harmless. After independently reviewing the record, the panel majority announced: “Like the California Supreme Court, we conclude that the potential mitigating evidence is insufficient to outweigh the overwhelming aggravating evidence. We are heavily influenced by the damage Pinholster did to himself when he took the stand in the guilt phase and testified to an unrepentant life of violent crime.” Regarding evidence of an abusive upbringing presented by Pinholster, the panel majority noted that in a post-conviction interview with a defense investigator Pinholster presented favorable descriptions of the alleged abusers. Although the panel majority wasn’t crediting Pinholster’s version of his upbringing over that recounted by other family members, it concluded that “Pinholster’s own perception of his childhood and its affect on him is certainly relevant.” In addition, while Pinholster’s mother provided an inaccurate portrayal of herself during her penalty phase testimony, she did provide the jury with some mitigating facts about Pinholster’s childhood, including abuse by his step-father, head injuries suffered by Pinholster and his epilepsy. The panel majority did not believe that new evidence of mental impairments would have had a significant impact on the jury given that there were opinions offered by multiple experts during state and federal habeas proceedings and these opinions “varied considerably, becoming somewhat of a moving target for the California Supreme Court and federal courts on habeas review.” In addition, the panel majority observed that the “the only constant with regard to the evolving defense expert testimony” was a diagnosis of Antisocial Personality Disorder, a diagnosis that the Ninth Circuit had previously observed was potentially more harmful than helpful. The panel majority further noted: “Although we have no pronounced reason to question the credibility of Pinholster’s new experts, we conclude that no newly-minted expert theory to explain his behavior would have made a difference in the face of what Pinholster said and did.” In distinguishing recent Supreme Court decisions finding ineffective assistance of counsel at sentencing, the panel majority found that Pinholster’s history of violence and lack of remorse offset the mitigating evidence that could have been presented. The panel majority affirmed the district court’s grant of summary judgment to the warden on numerous allegations of ineffective assistance of counsel at the guilt-innocence phase, finding that Pinholster had failed to set forth a colorable claim for relief. Judge Kozinki authored a concurring opinion due to his concern that Rompilla altered the test for determining prejudice for ineffective assistance claims. Specifically, he noted that the Supreme Court in Rompilla did not address the aggravating evidence when determining that trial counsel’s failure to develop and present mitigating evidence was prejudicial. As an alternative ground for reversing the district court, Kozinski would hold that trial counsel did not perform deficiently by choosing to pursue a “pity” mitigation case rather than trying to establish a mental defect. Judge Fisher dissented, arguing that not only was trial counsel ineffective in failing to develop mitigation, but also in failing to adequately investigate Pinholster’s alibi defense and advise him not to take the stand during the guilt-innocence phase. Although the latter failures were not prejudicial, in Fisher’s view, at the first phase of the trial, Fisher would hold that they “added considerably to the prejudice Pinholster suffered at the penalty phase.”

For the Week of: 4/20/2008 Supreme Court denies certiorari review in case challenging Missouri’s lethal injection protocol. On April 21, 2008, the Supreme Court denied Michael Taylor’s petition for writ of certiorari. No. 07-303. Taylor was seeking review of the Eighth Circuit’s decision reversing a district court’s finding that Missouri’s lethal injection protocol is unconstitutional. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). In finding there was not a constitutionally significant risk of pain inherent in the Missouri protocol, the appeals court had noted, among other things: “The written protocol requires a 5-gram dose of thiopental and a three minute wait before injecting the final two chemicals. The written protocol sufficiently provides for proper delivery of that dose by requiring the IV insertions to be accomplished by medical personnel (a physician, nurse, or EMT) who is qualified to perform the task, who must confirm before the procedure begins that the IV is functioning properly and not obstructed, and who must inspect the site again before the final two chemicals are injected. The physician, nurse, or EMT is given discretion only with regard to determining the proper placement of the IV and the appropriate procedure for insertion of the IV. The physician, nurse, or EMT is required to examine the prisoner physically using standard clinical techniques to determine that he is unconscious before the second and third chemicals are administered.” The questions presented in Taylor’s certiorari petition were: (1) Did the Eighth Circuit err in holding, in conflict with the Ninth Circuit, that a State´s needlessly dangerous manner of implementing its execution protocol violates the Eighth Amendment only if state officials are deliberately indifferent to the unreasonable risks created by their practices? (2) Did the Eighth Circuit err in reversing the trial court´s conclusion that Missouri´s execution procedures as they existed at the time of trial were unconstitutional, as well as its remedial holding that the State´s post-trial proposed written protocol failed to remedy the numerous dangers revealed by the trial record?

Supreme Court denies certiorari review in Alabama and Ohio cases where § 1983 lethal injection challenges were found to be untimely. On April 21, 2008, the Supreme Court denied the certiorari petitions filed by Ohio death row inmate Richard Cooey (No. 07-6234) and Alabama death row inmate Thomas Arthur (No. 07-375). Cooey’s petition, which sought review of a Sixth Circuit decision, raised the following questions: (1) Can the statute of limitations ever run on a 42 U.S.C. § 1983 claim that is not ripe for review because the plaintiff is challenging the future harm that would be caused by an unconstitutional execution method the implementation of which remains uncertain? (2) May a federal court use the principles behind the AEDPA´s one-year statute of limitations under 22 U.S.C. § 2244(b)(1) to create a statute of limitations for a 42 U.S.C § 1983 action that deprives a civil litigant of his opportunity to seek redress for a constitutional violation unrelated to the litigant´s confinement or punishment, by a complaint under 42 U.S.C. § 1983? Arthur’s petition, which sought review of an Eleventh Circuit opinion, raised these questions: (1) In light of the conflicting tests adopted by the Fifth, Sixth, Eighth, Ninth and Eleventh Circuits and the resulting patchwork of stays and dismissals in lethal injection cases across the country, what is the proper measure of timeliness for a method-of-execution claim brought by a death row inmate under 42 U.S.C. § 1983? (2) Whether the Eleventh Circuit´s “unreasonable delay” standard violates Article III´s case or controversy requirement where such standard: (i) ignores the fact that a method-of-execution claim does not become ripe until at least an execution date has been set or at the conclusion of federal habeas review; (ii) requires a death row inmate to anticipate the denial of habeas relief before such denial actually occurs; and (iii) subjects death row inmates to a catch-22 situation by forcing them to choose between filing an unripe claim or filing an unreasonably delayed claim. (3) Whether the balance of equities favors substantive review of Mr. Arthur´s complaint where: (i) a trial from another case addressing the constitutionality of Alabama´s lethal injection protocol will commence a few days after Mr. Arthur´s execution; (ii) executing Mr. Arthur a few days before this trial commences risks imposing upon Mr. Arthur a method of execution that could be found unconstitutional; and (iii) the lethal injection protocols in numerous states have been found unconstitutional.

Virginia and Florida ask the Supreme Court to vacate stays of execution previously entered in light of Baze. On April 23, 2008, the Commonwealth of Virginia filed a motion asking the Supreme Court to vacate the stay of execution it had granted to Christopher Emmett. No. 07A304. The stay was entered on October 17, 2007, after the Fourth Circuit refused to stay Emmett’s execution while it considered Emmett’s appeal from the denial of his civil rights challenge to Virginia’s lethal injection protocol. The stay was granted by the Supreme Court “pending final disposition of the appeal by the United States Court of Appeals for the Fourth Circuit or further order of this Court.” Emmett v. Johnson, 169 L.Ed.2d 327 (2007). Oral argument is scheduled for May 14, 2008 in the Fourth Circuit. That court has also requested supplemental briefing addressing Baze. On April 16, 2008, Florida filed a motion asking the Supreme Court to vacate the stay of execution it granted to Mark Schwab on November 15, 2007. The stay was issued to allow preparation and consideration of a certiorari petition challenging the Florida Supreme Court’s rejection of Schwab’s challenge to Florida’s lethal injection protocol. Schwab filed his certiorari petition on April 3, 2008. No. 07-10275. Florida filed its brief in opposition on April 16, 2008.

Sixth Circuit affirms denial of habeas relief to Ohio death row inmate. On April 25, 2008, the Sixth Circuit (Siler, with Merritt and Sutton) affirmed the denial of Marvallous Keene’s habeas petition. Keene v. Mitchell, ___ F.3d ___, 2008 WL 1829671 (6th Cir. April 25, 2008). Keene received five death sentences for a 1992 crime spree which resulted in multiple homicides. He argued that his equal protection rights were violated because the prosecutor sought the death penalty against him because he is African-American. In support of this contention, Keene pointed to: (1) that while African-Americans constitute only 17% of the county’s population, they account for 64% of capital indictments; (2) in a “factually similar” aggravated murder case, the prosecutor did not seek the death penalty against three white males; and (3) the other adult defendant involved in Keene’s case, a white female, was not charged with capital specifications. The panel ruled that the “Ohio Supreme Court did not violate clearly established Federal law when it denied him relief on this claim because he was unable to make a showing of bias under McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987); and Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir. 2001).” It noted that Keene had failed to offer any evidence specific to his own case that would support an inference that his race had been a consideration in his sentence. As for the allegedly similarly situated white males, the panel pointed out that they were charged with two murders while Keene was charged with five. In addition, two of the men pleaded guilty and testified against the third. The third man was not similarly situated to Keene, according to the panel, because the evidence against him was weak (he was acquitted of one of the two murders) and, unlike Keene, he was also acquitted of the firearm specifications attached to the charges. As for Keene’s adult co-defendant, she had been charged with only two of the murders and not only was she not the triggerperson, there was no clear evidence that she intended either victim to die. Keene, notably, was the triggerman in four of the five killings. The only other claim for which Keene received a COA involved an allegedly unduly suggestive pretrial identification. Looking to the factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), the panel found that “[t]he admission of the pretrial identification did not violate clearly established Federal law.” Further, agreeing with the state court, the panel concluded that “any error in admitting the identification was harmless because the identification only related to an armed robbery charge” and “had no bearing on any of the counts for which Keene received a death sentence.”

For the Week of: 4/13/2008 Supreme Court rejects challenge to Kentucky’s lethal injection protocol On April 16, 2008, the Supreme Court issued a splintered decision in Baze v. Rees, ___ U.S. ___, 2008 WL 1733259 (April 16, 2008). Chief Justice Roberts announced the judgment of the Court and authored an opinion joined by Justices Kennedy and Alito. At issue was not whether Kentucky’s lethal injection procedure, if applied as written, constituted cruel and unusual punishment, but rather whether the risk that the protocol would not be properly followed constituted an Eighth Amendment violation. The petitioners argued that an alternative protocol, one that has never been tried in any state, should be adopted. The Chief Justice found that the “petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.” (Kentucky utilizes the same three-drug combination as the vast majority of the states which execute by lethal injection - sodium thiopental, pancuronium bromide, and potassium chloride. If the first drug, a sedative wears off, the second drug, a paralytic, will prevent the inmate from alerting anyone to his condition and he will experience excruciating pain when the final drug is administered. Kentucky’s protocol uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Primary and secondary sites are established in case there is a problem with a line. The warden and deputy warden remain in the execution chamber to determine whether the inmate is unconscious after the first drug is administered and to watch for problems with the catheters and tubing.) Regarding the scope of the ruling, the Chief Justice stated: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.” Justice Alito wrote separately to express his views on how the Court’s holding should be implemented. The plurality found that “a State’s refusal to change its method [of execution] can be viewed as ‘cruel and unusual’ under the Eighth Amendment” if the State, “without a legitimate penological justification,” rejects an alternative method that is “feasible” and “readily” available and that would “significantly reduce a substantial risk of severe pain.” Alito argued that this standard, if properly understood, will not result in the endless litigation predicted by Justice Thomas in his concurring opinion. Noting the ethical rules prohibiting doctors, nurses and emergency medical technicians from participating in executions, Alito posited that “[o]bjections to features of a lethal injection protocol must be considered against the backdrop of the ethics rules of medical professionals and related practical constraints.” Further, he contended that an inmate challenging an execution protocol should be required to do more that “offer the testimony of a few experts or a few studies,” and instead should be charged with “point[ing] to a well-established scientific consensus.” Alito pointed out that the one-drug protocol involving a lethal dose of an anesthetic that the petitioners advocated has its critics. And simply eliminating the paralytic, as suggested by Justice Stephens, would be contrary to the recommendation of the Royal Dutch Society for the Advancement of Pharmacy concerning euthanasia. In Alito’s view “public policy on the death penalty, an issue that stirs deep emotions, cannot be dictated by the testimony of an expert or two or by judicial findings of fact based on such testimony.” He concluded that “[m]isinterpretation of the standard set out in the plurality opinion or adoption of the standard favored by the dissent and Justice Breyer would create a grave danger of extended delay.”

Justices Stevens and Breyer concur in the Baze judgment In a concurring opinion, Justice Stevens postulated that the Court’s decision would not bring an end to lethal injection litigation and would lead to reexamination of capital punishment itself. He criticized the use of pancuronium bromide, which many states disallow for animal euthanasia, and which serves no therapeutic purpose in the execution. He was unpersuaded by the plurality’s finding that its use is legitimate because preventing involuntary movement preserves the dignity of the procedure. Stevens was of the view that “States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide.” Referencing Justice Ginsburg’s dissent, Stevens further noted that “States may also be well advised to reconsider the sufficiency of their procedures for checking the inmate’s consciousness.” Stevens next turned to consideration of the death penalty itself. He found that “[t]he time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.” Among the areas of concern discussed by Stevens were “rules that deprive the defendant of a trial by jurors representing a fair cross section of the community,” that capital cases may involve an increased chance of error, and “the risk of discriminatory application of the death penalty.” Stevens ultimately found: “[J]ust as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ Furman, 408 U. S., at 312 (White, J., concurring).” Nevertheless, Stevens considered himself bound by case law upholding the constitutionality of capital punishment. Under the Court’s precedent, Stevens was “persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.” Justice Breyer, in his separate concurrence, expressed agreement with Justice Ginsburg’s formulation of how a method of execution challenge should be reviewed – a court must decide “whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering.” He also agreed with her conclusion that the relevant factors – the “degree of risk,” the “magnitude of pain,”and the “availability of alternatives”—are interrelated and must each be considered. Breyer was unable to find, however, “either in the record in this case or in the literature on the subject, sufficient evidence that Kentucky’s execution method poses the ‘significant and unnecessary risk of inflicting severe pain’ that petitioners assert.” Regarding the literature, Breyer discussed the Lancet Study that brought attention to the claim that lethal injection might result in unnecessary suffering, and the subsequent challenges to the study’s findings. Notably to Breyer, neither the certiorari petition nor any of the briefs filed in the Court (including seven amicus briefs supporting petitioners) make any mention of the Lancet Study. Breyer thus concludes that “a judge, nonexpert in these matters, cannot give the Lancet Study significant weight.” Regarding a law review article and testimony recounting botched lethal injection executions, Breyer found this of no assistance to petitioners because Kentucky’s protocol should prevent the problems in those cases from occurring. Breyer also found that the literature “casts a shadow of uncertainty upon the ready availability of some of the alternatives to lethal execution methods.” Specifically, he pointed to conflicting views on the appropriateness of using pancuronium bromide. As for the argument that better trained personnel is needed, like Alito, Breyer noted that ethical prohibitions against physician and nurse participation in executions makes that argument problematic. Breyer was also unpersuaded that more testing for unconsciousness should be required, finding that “[t]he record provides too little reason to believe that such measures, if adopted in Kentucky, would make a significant difference.” In sum, Breyer was unable to find “either in the record or in the readily available literature that I have seen, sufficient grounds to believe that Kentucky’s method of lethal injection creates a significant risk of unnecessary suffering.”

Justices Scalia and Thomas concur in the judgment in Baze Justice Scalia, joined by Justice Thomas, wrote separately to respond to Justice Stevens’s opinion. Regarding Stevens’s belief that capital punishment constitutes cruel and unusual punishment, Scalia stated: “This conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice.” Scalia then went on to contest Stevens’s premise – that the death penalty fails to promote any of the purposes of criminal punishment. Ultimately, Scalia concluded: “I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.” Justice Thomas, joined by Justice Scalia, wrote separately because although he agreed that the petitioners had failed to establish that Kentucky’s lethal injection protocol violated the Eighth Amendment, he disagreed with the plurality’s formulation of the standard to be applied. In Thomas’s view, “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” This understanding came from the history of the Eighth Amendment as well as from past precedents involving method of execution challenges. Thomas continued: “Aside from lacking support in history or precedent, the various risk-based standards proposed in this case suffer from other flaws, not the least of which is that they cast substantial doubt on every method of execution other than lethal injection.” According to Thomas, “the notion that the Eighth Amendment permits only one mode of execution, or that it requires an anesthetized death, cannot be squared with the history of the Constitution.” Thomas then predicted that the result of the Court’s decision in this case will be further litigation and he argued that judges lacked both the authority and the expertise to micromanage the States’s administration of the death penalty. Thomas concluded: “In short, I reject as both unprecedented and unworkable any standard that would require the courts to weigh the relative advantages and disadvantages of different methods of execution or of different procedures for implementing a given method of execution. To the extent that there is any comparative element to the inquiry, it should be limited to whether the challenged method inherently inflicts significantly more pain than traditional modes of execution such as hanging and the firing squad.”

Justices Ginsburg and Souter dissent in Baze. Justice Ginsburg, joined by Justice Souter, dissented from the Court’s judgment in Baze. Given the risk at stake, i.e., a conscious inmate experiencing excruciating pain from the pancuronium bromide (causing slow asphyxiation) and potassium chloride (causing burning and intense pain), Ginsburg was unwilling to dispose of the case as quickly as the plurality did. In her view, “Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs.” Ginsburg found little guidance from the Court’s case law regarding the standard that should be applied to petitioners’s claim. The three past cases that dealt with method of execution challenges did not adopt a clear standard. In addition, Ginsburg was of the view that “the age of the opinions limits their utility as an aid to resolution of the present controversy.” Ginsburg expressed agreement with both petitioners and the plurality that “the degree of risk, magnitude of pain, and availability of alternatives must be considered” when reviewing a execution method challenge. Where she parted company with the plurality was “to the extent its ‘substantial risk’ test sets a fixed threshold for the first factor.” In her view, “[t]he three factors are interrelated; a strong showing on one reduces the importance of the others.” Although the degree of risk was low here, given the magnitude of pain that would result if an inmate was conscious when the second and third drug were administered, Ginsburg found the critical question to be whether a feasible alternative exists. “[I]f readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.” Although Kentucky’s protocol contains significant experience and training requirements for those establishing IV access, Ginsburg saw little else to ensure that an inmate receives an effective dose of sodium thiopental. Under the protocol, only the warden and deputy warden remain in the execution chamber, neither of whom has medical training. None of the “basic tests” to determine whether the drug has worked are performed, such as testing for reflexes or applying a noxious stimulus. Nor is any of the readily available equipment used to monitor the effectiveness of the sodium thiopental. Ginsburg pointed out that other States have adopted safeguards not contained in Kentucky’s protocol, such as a pause before administering the second drug to determine whether the inmate is unconscious. Specifically, she referenced the protocols from Florida, Missouri, California, Alabama and Indiana. She would “remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Fourth Circuit affirms denial of habeas relief to Virginia death row inmate. On April 15, 2008, the Fourth Circuit (Williams, with Niemeyer and Duncan) affirmed the denial of Kent Jackson’s habeas petition. Jackson v. Johnson, ___ F.3d ___, 2008 WL 1723440 (4th Cir. April 15, 2008). Jackson received a COA on a single issue: whether Jackson’s trial counsel was ineffective for failing to object to the Commonwealth’s victim-to-defendant comparison at sentencing. In finding that Jackson was not entitled to relief, the panel made clear that “the question of whether the victim-to-defendant comparison made by the Commonwealth at Jackson’s trial violated the Due Process Clause of the Fourteenth Amendment” was not before it. Rather, the sole issue in the case was “whether the Supreme Court of Virginia unreasonably applied Strickland in denying Jackson habeas relief on his ineffective assistance claim.” Jackson argued that while victim impact evidence is not inadmissible per se, “Payne clearly established that arguments of the sort made by the Commonwealth at his trial—those he styles as comparing the worth of the victim to the defendant—render capital trials fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment.” The panel pointed out, however, that the court sitting en banc had previously rejected that precise characterization of Payne. See Humphries v. Ozmint, 397 F.3d 206, 224 (4th Cir. 2005) (en banc). Following Humphries, the panel here held: “In light of Payne’s silence regarding victim-to-defendant comparisons, we cannot say that the Supreme Court of Virginia unreasonably applied Payne in rejecting Jackson’s purported comparative-worth argument. More to the point, we believe that a reasonable attorney in the shoes of Jackson’s trial counsel would not have felt compelled by Payne to object on the ground that the Commonwealth’s closing argument violated Due Process. Even assuming arguendo that Jackson’s counsel should have objected to the Commonwealth’s closing argument, however, Jackson has not demonstrated a reasonable probability that the objection would have led to a result other than a death sentence. As was true in Humphries, the evidence concerning the appropriate sentence for Jackson was ‘not close.’ Humphries, 397 F.3d at 222. Jackson confessed to murdering Beulah Mae Kaiser, and the autopsy revealed the brutality of the murder. The Commonwealth’s closing argument surely ‘did not inflame [the jury’s] passions more than did the facts of the crime.’ Payne, 501 U.S. at 831 (O’Connor, J., concurring).” On this record, the panel could not find that “the Supreme Court of Virginia incorrectly, let alone unreasonably, applied Strickland in denying Jackson habeas relief.”

For the Week of: 4/6/2008 Sixth Circuit affirms denial of habeas relief to Ohio death row inmate On April 11, 2008, the Sixth Circuit (Gibbons with Boggs and Moore) affirmed the denial of Abdullah Sharif Kaazim Mahdi’s habeas petition. Mahdi v. Bagley, ___ F.3d ___, 2008 WL 977042 (6th Cir. April 11, 2008). (Mahdi is formerly known as Vernon Smith.) Mahdi alleged that trial counsel was ineffective for failing to voir dire prospective jurors about racial and religious bias and that appellate counsel was ineffective for failing to raise trial counsel’s deficiency on appeal. The Ohio Supreme Court had found the contention that trial counsel was ineffective to be “purely speculative and unconvincing.” The state court was unpersuaded by Mahdi’s characterization of the trial as racially charged. (Mahdi is a black man and the victim, the owner of a grocery store, was of Arabic descent. Evidence was presented at the sentencing phase that the day before the robbery-murder, Mahdi and his wife had seen Menace II Society, which included a scene depicting an interracial crime in which a black man had words with a store owner and angrily shot him. A psychologist opined that there was a connection between the film and the crime, although Mahdi claimed that the shooting was an accident.) The panel was unable to find that the state court’s ruling was contrary to Supreme Court precedent given that the state court had correctly noted that “under Turner v. Murray, the actual decision to voir dire on racial prejudice is a choice best left to a capital defendant´s counsel.” The panel further agreed with the state court’s finding that counsel could have concluded questioning on the sensitive topic of racial bias would be unwise in this case. The panel observed: “Mahdi´s counsel apparently hoped that the jury would conclude that the murder of Darwish had been an accident. Conducting a voir dire on racial and religious grounds could have emphasized the possible role of racial and religious animus in the commission of the crime, bolstering the prosecution´s claim that the murder had been intentional.” The state court had also found that even if it viewed counsel’s omission of questioning on racial bias to be questionable, it would still have to defer to counsel’s strategy. This, according to the panel, did not constitute an unreasonable application of federal law. Given that the claim of ineffective assistance by trial counsel failed, the appellate ineffectiveness claim necessarily also could not provide a basis for relief. The final claim on which Mahdi had received a COA was that his due process rights were violated when the state court of appeals, in its independent review of his death sentence, applied a change in case law that retroactively forbade consideration of one of the mitigators Mahdi had relied on at trial: residual doubt about whether he had intended to kill the victim. The panel concluded it did not need to decide whether clearly established federal law precluded the retroactive application of case law barring residual doubt as a mitigating circumstance. Although the Ohio Supreme Court had found no error in the lower appellate court’s retroactive application of the new law on residual doubt, it had alternatively weighed residual doubt and found it entitled to little weight given the evidence indicating the killing was intentional. Thus, Mahdi was not in fact deprived of an appellate weighing of residual doubt. The panel was unpersuaded by Mahdi’s additional argument that he was denied meaningful appellate review because of the intermediate appellate court’s refusal to consider residual doubt. The panel concluded this argument was foreclosed by Rust v. Hopkins, 984 U.S. 1486 (1993).

Tennessee death row inmate ordered released from custody during state’s appeal of district court’s grant of habeas relief as to the capital conviction and death sentence. On April 7, 2008, United States District Judge Harry S. Mattice, Jr., issued a memorandum granting the warden’s request to stay issuance of the conditional writ of habeas corpus to Paul House pending the warden’s appeal, but also granting House’s request for release from custody pending appeal. House v. Bell, 2008 WL 972709 (E.D. Tenn. April 7, 2008). Judge Mattice found, among other things: “The State of Tennessee does not have a defensible interest in the continued incarceration of an individual whose conviction was obtained in violation of the U.S. Constitution. The petitioner in this case has been incarcerated for 22 years as the result of a trial which this court, as well as the Supreme Court of the United States, has determined to have been fundamentally unfair.” The matter was referred to the United States Pretrial Services Agency for its investigation and recommendation as to the appropriate conditions for House’s release.

Ohio Supreme Court rules that death row inmate established his mental retardation. On April 9, 2008, the Ohio Supreme Court ruled that the trial court had abused its discretion in finding that Clifton White III failed to prove he was mentally retarded by a preponderance of the evidence. State v. White, ___ N.E.2d ___, 2008 WL 1699280 (Ohio April 9, 2008). After White filed a post-Atkins successor petition for post-conviction relief raising mental retardation, the trial court, at White’s request, appointed Dr. David Hammer, a psychologist, to assist White. The state retained as its expert Dr. John M. Fabian, a clinical and forensic psychologist. Drs. Hammer and Fabian jointly conducted testing to determine whether White was mentally retarded. White called both doctors at the post-conviction hearing. The state called only a single lay witness, a former girlfriend of White. Although the trial court accepted the finding of the two experts that White suffered from significant intellectual deficits, it rejected their conclusion that White also suffered the requisite adaptive deficits for a mental retardation diagnosis and that White’s deficits manifested prior to age 18. Instead, the trial court found credible the ex-girlfriend’s testimony about White’s skills. The two experts had assessed White’s adaptive deficits with the SIB-R, which both experts considered to be a valid tool for measuring adaptive skills. A co-author of the SIB-R was called at the court’s request to explain how the instrument was developed and how it is used to diagnose mental retardation. The co-author testified about the extensive empirical research that the SIB-R was based on and how it is considered reliable. Despite this testimony, the trial court rejected the results of the SIB-R. Part of the reason for this was the trial court’s concern about Dr. Hammer’s use of information provided by White himself. The Ohio Supreme Court questioned this concern given Hammer’s testimony that probably less than 10 percent of his information had come from White. Moreover, Hammer did not use information provided by White as his sole basis for scoring any of the items on the SIB-R. Further, the record did not establish that some reliance on the person being evaluated as an informant was necessarily improper. Even more important to the Ohio Supreme Court was the trial court’s failure to consider why the SIB-R manual cautioned against using the subject as an informant – that subjects tend to overestimate their abilities. Thus, the record did not support the trial court’s apparent belief that some use of White as an informant compromised the experts’s mental retardation diagnosis. As for the trial court’s reliance on the ex-girlfriend’s testimony, the Ohio Supreme Court noted that Dr. Hammer was present when she testified and stated that many of the facts she related had already been told to him by family members. (E.g., that White was popular in school, he could drive, he signed a lease for an apartment, he successfully played card and video games, he could cook bacon and eggs as well as heat chicken wings in the oven, etc.) Nevertheless, Dr. Hammer rescored the SIB-R in light of the testimony. The revision did not significantly improve White’s overall score and did not alter Dr. Hammer’s conclusion that White is mentally retarded. The undisputed expert testimony was that the facts revealed by the ex-girlfriend were not inconsistent with White being mildly mentally retarded. Mildly mentally retarded individuals may look relatively normal in a number of areas and may be able to play sports, drive and hold jobs. But then they may also have significant limitations in other areas. As Dr. Hammer explained, “in determining whether a person is mentally retarded, one must focus on those adaptive skills the person lacks, not on those he possesses.” This testimony appeared to have been disregarded by the trial court. The trial court further went astray by relying on the fact that family members and friends did not perceive White as lacking in adaptive skills. Both experts testified that this is often the case with mildly mentally retarded individuals. The trial court also erred by focusing on the absence of “bizarre” behavior by White when there was no evidence that such behavior is an attribute of mental retardation. In sum, regarding whether White had established the requisite adaptive deficits, the Ohio Supreme Court found that “the trial court failed to set forth any rational basis grounded in the evidence for rejecting the uncontradicted testimony of two qualified expert witnesses in the field of psychology.” Similarly, the Ohio Supreme Court found that the trial court abused its discretion in ruling that White failed to prove an age of onset prior to 18. Although White had taken neither an IQ test nor an adaptive-skills test before age 18, both experts concluded his academic record indicated his intellectual deficits existed during the developmental period. In addition, there was no evidence in the record of something like a brain injury as an adult that could alternatively explain White’s current impairments.

For the Week of: 3/30/2008 Habeas relief as to death sentence granted to Ohio death row inmate. On March 31, 2008, United States District Judge Edmund Sargus of the Southern District of Ohio issued an opinion and order granting habeas relief to Billy Sowell in a pre-AEDPA case on a claim of ineffective assistance of counsel at Sowell’s 1983 sentencing. Sowell v. Collins, 2008 WL 859137 (S.D. Ohio March 31, 2008). Instead of conducting an independent background investigation, counsel relied on the PSI prepared by the probation department which counsel introduced into evidence despite the fact that it contained negative information that otherwise would not have been admissible. Although the PSI and reports by numerous court-appointed experts contained “hints of petitioner´s violent and deprived background,” counsel failed to further develop background evidence. The evidence that was presented to the three-judge sentencing panel focused on good character testimony by a handful of witnesses. Judge Sargus was “troubled that the panel did not learn that petitioner´s life as a child was chaotic, violent and neglectful.” He was further “troubled that the panel did not learn that petitioner´s father was a raging alcoholic who physically abused his wife and children on a regular basis, that petitioner´s parents regularly abandoned their children for three to four days at a time with no supervision, and that petitioner experienced poverty to such a degree that the Sowell children went without food and adequate clothing, had to beg for and steal food, and that petitioner´s infant brother died of starvation.” Judge Sargus was also “troubled that the panel was not aware that petitioner´s father tied him to a chair and beat him until a neighbor intervened, that petitioner´s sister was molested by their father, and that petitioner moved to a junkyard and lived, on his own, in a tent at the tender age of fourteen.” Judge Sargus found “it significant that petitioner´s siblings have not fared much better in their own lives, a likely result of growing up in the same environment as petitioner.” On the record before him, and “with due regard to the deference that Strickland requires,” Judge Sargus found “that counsel´s investigation into petitioner´s background did not reflect reasonable professional judgment. Counsel´s failure to interview members of petitioner´s family was neither consistent with the professional standards that prevailed in 1983, nor reasonable in light of the evidence contained in the PSI and the psychological reports that would have led a reasonable attorney to investigate further.” Although this was not a case where counsel presented no mitigation, Judge Sargus concluded that counsel’s failure to adequately investigate Sowell’s background left counsel in no position to elect a defense strategy of good character evidence. Further, evidence about Sowell’s troubled background was found by Judge Sargus not to be inconsistent with the good character testimony that was presented. Indeed, in Judge Sargus’s view, it would actually have bolstered counsel’s chosen defense – “The evidence concerning petitioner´s horrific upbringing that counsel failed to present would have bolstered their mitigation case by demonstrating that petitioner was capable of generosity and good acts in spite of the upbringing that he endured.” In finding that Sowell was prejudiced by counsel’s deficient performance, Judge Sargus described the evidence the panel never heard as “significant, and qualitatively different from the information that the panel received.” Further, the evidence “would have helped illustrate the manner in which Sowell´s violent background contributed to his conduct and violent reaction to the theft that he perceived.” (The capital offense occurred after Sowell became convinced that friends had robbed him.) Judge Sargus rejected Sowell’s claim that counsel performed deficiently by relying on court-appointed experts and not seeking evaluations from independent experts. But even assuming counsel should have done so, Sowell failed, according to Judge Sargus, to establish prejudice. In reaching this conclusion, Judge Sargus pointed out that Sowell’s alcoholism and the connection between his intoxication at the capital crime were discussed in reports by the four court-appointed experts that were furnished to the sentencing panel. Judge Sargus was unable to conclude that the findings by post-conviction experts were sufficiently different so as to undermine confidence in the sentencing decision. Judge Sargus also rejected the remainder of Sowell’s claims.

Tenth Circuit affirms denial of habeas relief to Oklahoma death row inmate. On April 2, 2009, the Tenth Circuit (Briscoe with Tacha; Henry dissenting in part) affirmed the denial of Donald Lee Gilson’s habeas petition. Gilson v. Sirmons, ___ F.3d ___, 2008 WL 863034 (10th Cir. April 2, 2008). Gilson was convicted of child abuse murder. The prosecutor offered two theories for the murder – either Gilson personally committed the abuse that led to the child’s death or he knowingly permitted the child’s mother to commit the abuse at issue. The jury was divided on the underlying theory. Gilson argued that the lack of unanimity as to the theory of murder violated his right to due process. Looking to the state court decision rejecting this claim, the panel found that the state court only applied the first part of the analysis required by the governing case – Schad v. Arizona. The state court found, as a matter of state law, that the Legislature had clearly intended to punish as first degree murder the use of unreasonable force upon a child or the permitting of unreasonable force to be used upon a child when the death of a child results. What it did not decide was whether the Legislature’s decision to treat committing and permitting child abuse as alternative means of committing the same crime was consistent with principles of due process. The panel therefore conducted that analysis de novo and found that no due process violation occurred, despite the fact that “Oklahoma’s decision to directly include both the commission and permission of abuse resulting in the death of a child in its definition of first-degree murder appears to be unique among the states.” The panel next rejected Gilson’s Enmund/Tison challenge to his sentence, holding among other things that the state appellate court’s findings about Gilson’s culpability were not inconsistent with the factual findings the jury necessarily made in order to convict Gilson of first degree murder. As for Gilson’s claim that his death sentence was unconstitutionally disproportionate, the panel found that the state appellate court’s proportionality review was neither contrary to, nor an unreasonable application of, clearly established federal law. Application of a newer statute to Gilson (i.e., a statute passed after the child was killed) concerning who may be convicted for “permitting” another to abuse a child was incorrect but did not constitute an ex post facto violation in this case. This was because, as found by the state appellate court, the evidence established Gilson’s guilt under both the older and the newer statutes. The panel majority held that the state appellate court reasonably applied Beck v. Alabama in rejecting Gilson’s claim that he was entitled to jury instructions on the lesser included offenses of second degree murder and second degree manslaughter. Also not a basis for relief was Gilson’s complaint about the trial court’s exclusion of testimony by an expert in child development concerning the credibility of the victim’s siblings. According to the panel, the state court’s ruling was neither unreasonable nor did it render Gilson’s trial fundamentally unfair. Finally, the panel ruled that Gilson failed to establish prejudice from trial counsel’s failure to discover and present evidence of his brain damage and behavioral changes that followed a 1993 car accident. Regarding the guilt-innocence phase of the trial, the panel pointed out that Oklahoma does not recognize a mental state defense short of insanity. In addition, none of Gilson’s post-trial evidence established that he lacked the ability to form the intent necessary to be convicted of first degree murder. As for the sentencing phase, the panel found that evidence about the brain damage, and its negative impact on Gilson’s behavior and personality, “would likely have weighed against Gilson by erasing any lingering doubts that may have existed as to his role in [the victim’s] murder, and by confirming the jury’s conclusion that he represented a continuing threat, even if confined in prison for life.” Chief Judge Henry dissented as to the resolution of Gilson’s Beck claim. In Henry’s view: “Evidence was presented at trial that Mr. Gilson played no part in abusing [the victim] the day he died and that he was asleep on the couch during the abuse that led to [the victim’s] death. A rational jury could have believed this evidence and found Mr. Gilson guilty of culpable negligence, but not of actively permitting child abuse, as the Oklahoma statute requires for a first-degree murder conviction. Because, even under our deferential standard of review, the evidence supported giving an instruction on second-degree manslaughter – a right protected under Beck and Spaziano – I must respectfully dissent.”

Fifth Circuit denies COA request by Texas death row inmate. On March 31, 2008, the Fifth Circuit (per curiam – Davis, Barksdale and Benavides) in an unpublished decision denied Roderick Newton’s COA application. Newton v. Quarterman, 2008 WL 867937 (5th Cir. March 31, 2008). The claims he had sought to raise were: (1) the trial court erroneously granted the State’s challenge for cause to a venire-member; (2) the prosecutor impermissibly called into question Newton’s right not to testify; (3) the trial court’s not defining “criminal acts of violence” violated Newton’s due process rights; (4) the trial court relieved the State of its constitutional burden of proving the lack of mitigating circumstances beyond a reasonable doubt; and (5) trial counsel was ineffective at the punishment phase of the trial. As for the last claim, it was unexhausted/procedurally defaulted due to state habeas counsel’s failure to raise it.

Fifth Circuit denies request to expand COA granted by district court in case involving an Atkins claim. On April 1, 2008, the Fifth Circuit (per curiam – Barksdale, Garza and Benavides) in an unpublished decision denied Rickey Lynn Lewis’s request for a COA on issues in addition to the one on which a COA was granted by the district court. Lewis v. Quarterman, 2008 WL 886123 (5th Cir. April 1, 2008). This case involves an authorized successor petition raising an Atkins claim. Although the district court denied relief to Lewis, it granted a COA on whether, based upon the evidence submitted in the state-court proceeding, the following Texas Court of Criminal Appeals determination was unreasonable: Lewis failed to establish by a preponderance of the evidence that he had significantly sub-average general intellectual functioning. Here, Lewis sought a COA on: (1) whether the district court erred by refusing to consider an affidavit that had not been presented in the state-court proceeding; (2) whether the district court was required to review the scientific methodology applied by the experts in state court; and (3) whether the State should bear the burden of proving a capital defendant is not mentally retarded . Regarding the district court’s refusal to consider an affidavit that had not been submitted to the state court, the panel concluded the issue would be considered when it addressed the merits of the district court’s Atkins ruling in a subsequent decision. The evidentiary question did not concern the denial of a constitutional right and did not require a separate COA. Similarly, the scientific methodology issue was an evidentiary matter and not something requiring a separate COA. Assuming a COA was required however, Lewis would not be entitled to one because he failed to include the issue in his COA request below. Finally, regarding the burden of proof, the panel found the claim foreclosed by Atkins, which left it to the states to develop procedures for enforcing the ban on executing the mentally retarded.

Habeas relief denied to North Carolina death row inmate. On March 31, 2008, Senior United States District Judge Malcolm Howard of the Eastern District of North Caroline denied Johnny Parker’s habeas petition. Parker v. Branker, 2008 WL 859002 (E.D.N.C. March 31, 2008). Certain Brady allegations were found to be procedurally defaulted because they had never been raised in state court and they would now be barred. Addressed on the merits was Parker’s claim that the prosecution suppressed information implicating others, as well as Parker, in the double murder. In denying relief, the state court had found, among other things, that the information was not material to the guilt phase given the considerable evidence of Parker’s guilt. Judge Howard agreed. The state court had found the suppressed statements were not material as to sentence because they contained only inadmissible hearsay. Although disagreeing with that reasoning, Judge Howard nevertheless could not say that the state court finding that the statements were not material was unreasonable. Judge Howard found: “Ultimately, in light of the senseless and savage nature of the crimes and given the evidence of petitioner´s significant involvement, the alleged Brady evidence does not undermine confidence in the sentencing verdicts.” Parker’s claim that his trial attorney was ineffective for failing to adequately investigate and present mitigating evidence at the sentencing phase of trial was found by the state post-conviction court to be procedurally barred because Parker was in a position to adequately raise it on direct appeal, but did not do so. Judge Howard, citing Fourth Circuit precedent, rejected Parker’s broad argument that the time and place to raise a Sixth Amendment ineffective assistance claim is not in a direct appeal. Notably, Judge Howard observed that Parker had not alleged that the procedural default should not apply because his claim was based on materials outside of the record. As to Parker’s claim of newly discovered evidence, Judge Howard ruled that to the extent Parker was complaining about the post-conviction court’s application of state law, this was not cognizable in federal habeas proceedings. To the extent Parker was raising a Herrera claim, his new evidence was found by Judge Howard to be insufficient to meet the high standard required for establishing actual innocence. Parker’s challenges to the short-form indictment failed because “there is no clearly established constitutional requirement that a state indictment allege each and every element of an offense or specify the aggravating circumstances to be relied upon in a capital sentencing proceeding.” Nor is there a requirement that States provide advance notice of the aggravating circumstances.

For the Week of: 3/23/2008 Georgia death row inmate seeks reconsideration of decision affirming the lower court´s denial of his request for a new trial. On March 27, 2008, Troy Davis filed a motion for reconsideration of the Georgia Supreme Court´s March 17th decision. In that decision, a majority of the court found no abuse of discretion in the lower court´s summary denial of Davis´s extraordinary motion for a new trial which was based on evidence of innocence, including recantations by trial witnesses. In the motion, Davis argues: (1) the court´s "purest fabrication" standard for recantations should not apply in this case; (2) the court applied the skeptical "purest fabrication" standard to a case where skepticism is unwarranted; (3) an evidentiary hearing would allow the trial court to assess the credibility and substance of the affidavits; and (4) due process and the Eighth Amendment´s prohibition against cruel and unusual punishment demand an evidentiary hearing

Third Circuit affirms grant of habeas relief to Pennsylvania death row inmate On March 27, 2008, the Third Circuit (Scirica and Cowen; Ambro dissenting in part) affirmed the district court’s finding that the penalty phase instructions and verdict form given in Mumia Abu-Jamal’s case violated Mills v. Maryland and that the state court’s contrary conclusion involved an unreasonable application of Supreme Court precedent. Abu-Jamal v. Horn, ___ F.3d ___, 2008 WL 793877 (3rd Cir. March 27, 2008). The panel also affirmed the district court’s denial of a Batson claim, a claim of prosecutorial misconduct in summation at the guilt-innocence phase, and a claim that Abu-Jamal’s due process rights were violated because the judge at the state post-conviction proceeding was biased. Regarding the Batson claim, the panel majority first found, as a matter of federal law, that Abu-Jamal forfeited the claim by failing to make a timely objection to the prosecutor’s excusal of black veniremembers. (The trial occurred prior to the Batson decision, which was issued while the case was on direct appeal. The claim was raised for the first time in that appeal.) Even assuming Abu-Jamal did not forfeit the claim as a matter of federal law, the panel majority concluded that Abu-Jamal was still not entitled to relief. Before addressing the merits of the claim, the panel majority considered whether the procedural default doctrine foreclosed federal review. On appeal, the Pennsylvania Supreme Court had found the claim waived due to the absence of a contemporaneous objection to the strikes. Noting the then-existence of a relaxed waiver rule in capital cases, something subsequently abandoned, the state court proceeded to discuss the merits of the claim and deny relief. The claim was raised again in state post-conviction proceedings, along with an accompanying claim of ineffective assistance of counsel. (In post-conviction proceedings, the parties stipulated that the number of black prospective jurors who had been removed by the prosecutor was greater than believed at the time of the direct appeal.) In finding relief foreclosed, the Pennsylvania Supreme Court did not make a clear and express finding that the claim was procedurally barred. Therefore, the appeals court found that federal review was not prohibited. In a footnote, the panel majority also noted circuit precedent holding that at the time of Abu-Jamal’s purported waiver, Pennsylvania did not consistently apply an unforgiving waiver rule. Thus, any finding of waiver would not be an adequate basis for precluding federal review. As to the merits, in arguing that a prima facie case of purposeful discrimination had been shown, Abu-Jamal relied heavily on the fact that the prosecution used 15 of its 20 peremptory challenges and of the 15 challenges, 10 were against black veniremembers. This produced a strike rate of 66.67%. Missing from the record, however, was evidence about the racial composition of the venire itself. This precluded calculating the actual excusal rate which “would provide important contextual markers to evaluate the strike rate.” And, notably to the panel majority, although the trial prosecutor was under subpoena for the state post-conviction proceeding, Abu-Jamal failed to call him in an effort to develop further support for a prima facie case of discrimination. The panel majority ultimately concluded: “Under AEDPA’s deferential standard of review, the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson.” Judge Ambro dissented regarding the Batson claim. First, Judge Ambro disagreed with the majority’s imposition of a contemporaneous objection requirement for Batson claims. Next, Judge Ambro argued that the panel majority raised “the standard necessary to make out a prima facie case beyond what Batson calls for.” Judge Ambro would remand to the district court for completion of the second and third steps of the Batson analysis.