For the Week of: 5/17/2009 Cert grant in Alabama capital case On May 18, 2009, the Supreme Court granted Alabama death row inmate Holly Wood´s certiorari petition as to the following two issues: (1) Whether a state court´s decision on post-conviction review is based on an unreasonable determination of the facts when it concludes that, during the sentencing phase of a capital case, the failure of a novice attorney with no criminal law experience to pursue or present evidence of defendant´s severely impaired mental functioning was a strategic decision, while the court ignores evidence in the record before it that demonstrates otherwise? (2) Whether the rule followed by some circuits, including the majority in this case, abdicates the court´s judicial review function under the Antiterrorism and Effective Death Penalty Act by failing to determine whether a state court decision was unreasonable in light of the entire state court record and instead focusing solely on whether there is clear and convincing evidence in that record to rebut certain subsidiary factual findings? Two other issues in the certiorari petition, one involving Atkins and one involving a default of comparative juror analysis for a Batson claim, were not included in the cert grant. The case below is Wood v. Allen, 542 F.3d 1281(11th Cir. 2008)

Cert grant in Pennsylvania capital case On May 18, 2009, the Supreme Court granted the warden´s certiorari petition in Beard v. Kindler, 08-992. The question presented is: After murdering a witness against him and receiving a sentence of death, respondent broke out of prison, twice. Prior to his recapture in Canada years later, the trial court exercised its discretion under state forfeiture law to dismiss respondent’s post-verdict motions, resulting in default of most appellate claims. On federal habeas corpus review,the court of appeals refused to honor the state court’s procedural bar, ruling that, because "the state court.., had discretion" in applying the rule, it was not "firmly established" and was therefore "inadequate." Is a state procedural rule automatically "inadequate" under the adequate-state-ground doctrine -- and therefore unenforceable on federal habeas corpus review -- because the state rule is discretionary rather than mandatory?

Georgia death row inmate files original habeas petition in the Supreme Court On May 19, 2009, Troy Davis filed an original habeas petition in the United States Supreme Court. In re Troy Anthony Davis, 08-1443. The questions presented are: (1) Whether transfer to the district court for a hearing pursuant to this Court�s original habeas jurisdiction is warranted in the exceptional capital case where the petitioner has raised a substantial case of innocence, the lower federal courts refused to address his innocence in his first federal habeas petition and no State or federal court has held an evidentiary hearing to examine his new evidence? (2) When federal courts fail to consider a petitioner�s innocence in his first federal habeas petition, does the Antiterrorism and Effective Death Penalty Act of 1996 (�AEDPA�) preclude stand-alone innocence claims raised for the first time in a successive habeas petition based on the same evidence the federal courts failed to review in the first petition? The following day, a group of former prosecutors and members of the judiciary filed a motion for leave to file an amicus brief in support of Troy Davis.

Eleventh Circuit denies COA to Florida death row inmate On May 19, 2009, the Eleventh Circuit (Black, with Birch and Wilson) issued an opinion denying Anthony Lamarca�s request for a COA in order to appeal the denial of his habeas petition. Lamarca v. Secretary, Dept. of Corrections, ___ F.3d ___, 2009 WL 1377235 (11th Cir. May 19, 2009). Lamarca had sought a COA on three claims: (1) ineffective assistance of counsel at the guilt phase of his capital trial; (2) failure by the State to disclose exculpatory evidence to the defense and presentation of false and misleading testimony; and (3) deprivation of the right to present a defense by the trial court�s limitation and exclusion of evidence and abridgement of cross-examination of a key prosecution witness. (No penalty-related claims were raised in the COA application. At trial, Lamarca had represented himself at the penalty phase and presented no mitigating evidence.) Some ineffective assistance of counsel subclaims were found by the panel to be unexhausted. One such subclaim alleged that counsel was ineffective in failing to discover and present undisclosed consideration given to a prosecution witness. In state court, however, the alleged undisclosed consideration was raised only as Brady and Giglio violations. Also found to be unexhausted was Lamarca�s contention that trial counsel was ineffective in failing to call a witness to testify that the prosecution witness was a �known liar.� As for Lamarca�s other ineffectiveness allegations, the panel concluded that the correctness of the district court�s finding that � 2254(d) barred relief was not debatable amongst jurists of reason. The panel observed, among things, that Lamarca failed to explain either in his habeas petition or in his COA application how the state courts� decisions were contrary to or involved an unreasonable application of Strickland. Further, the panel pointed out that Lamarca had also failed to put forth any evidence, let alone clear and convincing evidence, to rebut the state court�s numerous factual determinations, such as findings that trial counsel�s decisions were strategic. Regarding Lamarca�s Brady/Giglio claims, the district court had denied relief, noting the state courts found there were no undisclosed deals or agreements as alleged by Lamarca and that Lamarca had failed to establish, by clear and convincing evidence, these factual findings were erroneous. The panel ruled: �Jurists of reason would not debate the district court�s assessment of Lamarca�s Brady and Giglio claims.� As for Lamarca�s claim that his right to present a defense was violated by exclusion of evidence supporting his third party culpability defense, the state court had agreed that the trial court erred in excluding the evidence. It found, however, that the error was harmless. Applying � 2254(d), the district court held that Lamarca was not entitled to relief. According to the panel, �[n]o jurist of reason would conclude the decisions of the Florida Supreme Court or the district court were �contrary to� or �an unreasonable application of�clearly established federal law.� To support this ruling, the panel went on to describe the evidence implicating Lamarca in the capital offense.

Eleventh Circuit affirms denial of Florida death row inmate�s habeas petition On May 18, 2009, the Eleventh Circuit (Hull, with Dubina and Marcus) affirmed the denial of Duane Owen�s habeas petition. Owen v. Secretary for the Dept. of Corrections, ___ F.3d ___, 2009 WL 1361488 (11th Cir. May 18, 2009). All but one of Owen�s multiple ineffective assistance of counsel claims were found to be procedurally defaulted as a result of Owen refusing to proceed with them during post-conviction proceedings. (At the time of the post-conviction hearing, Owen was facing a retrial in a separate capital murder case where he was represented by different counsel.) The Florida Supreme Court had ruled that the refusal to proceed waived the claims. The panel concluded that this ruling �constitutes an independent and adequate state law ground for denial that procedurally bars the claims from federal habeas review.� Owen argued that he had cause to overcome the default � that he was forced to choose with proceeding with the ineffectiveness claims or maintaining the attorney-client privilege in the upcoming trial. The panel found his argument flawed in that he never showed the alleged forced choice. It pointed out that the post-conviction court had granted Owen�s motion to prohibit disclosure of any information that was privileged with respect to any case other than the one at issue in the post-conviction proceedings. And yet Owen failed to call the trial attorneys he accused of ineffective assistance. The panel went on to set forth other substantive evidence that it appeared Owen could have produced in support of his claims without jeopardizing the attorney-client privilege related to the pending retrial. In a footnote, the panel dismissed Owen�s argument that he could not prove his ineffective assistance claims concerning the development of mental health evidence because his post-conviction counsel and his re-trial counsel employed the same mental health experts and exchanged work product and privileged information. Even assuming this could be considered an external impediment creating cause to overcome the procedural default, Owen failed to establish the requisite prejudice. Further, the panel observed that the one witness who was called by Owen at the state hearing, an attorney who litigated the suppression motion in both capital cases and who had been trial counsel for the second murder case, had not been asked about an alleged conflict of interest that Owen had raised in his state petition. (The attorney had previously prosecuted Owen on a burglary charge.) The panel could find no excuse for Owen�s failure to adduce evidence on that claim. The panel also noted post-conviction counsel�s concession during a colloquy with the court that she did not intend to make any attempt to present substantive evidence. The panel added that even if the claims were not procedurally defaulted they would fail on the merits for lack of evidence. Owen�s failure to develop the evidence in state court precluded him from presenting the evidence for the first time in federal habeas proceedings. Also found to be procedurally defaulted by the district court was a conflict of interest claim that was denied by the state court as insufficiently pled. The panel ruled, however, that the state court�s ruling was actually a merits determination. But because Owen�s claim did indeed lack evidence establishing that his counsel represented conflicting interests, the state court�s rejection of the claim was reasonable and consistent with federal law. Another error by the district court was its holding that claims denied by the Florida Supreme Court in post-conviction proceedings on the ground that they had previously been raised and rejected were procedurally defaulted. (In a footnote, the panel acknowledged that another panel �muddied the waters in this area� earlier this year in Wellons v. Hall, 554 F.3d 923, 936 & n. 6 (11th Cir. 2009). Wellons was not binding because it conflicted with prior circuit precedent as well as the Supreme Court�s recent decision in Cone v. Bell.) Again, however, the panel ultimately found that Owen was not entitled to relief on the claims. Finally, the panel affirmed the denial of the following claims: (1) unconstitutional denial of motion to suppress confession; (2) insufficient evidence supported the sexual battery conviction because the evidence demonstrated the victim was not alive at the time of the sexual penetration; (3) the prosecution violated Brady by failing to disclose handwritten notes obtained by the FBI from a therapist who treated Owen prior to the capital offenses; (4) ineffective assistance of appellate counsel for failing to appeal the admission of a prejudicial statement by a police officer; and (5) ineffective assistance of appellate counsel for failing to raise judicial bias on appeal.

For the Week of: 5/10/2009 Ninth Circuit denies rehearing en banc to California death row inmate On May 11, 2009, the Ninth Circuit denied Kevin Cooper’s petition for rehearing en banc over the vigorous dissents by numerous judges. Cooper v. Brown, ___ F.3d ___, 2009 WL 1272436 (9th Cir. May 11, 2009). Cooper had been seeking rehearing of a three-judge panel’s affirmance of the denial of his authorized successor habeas petition. Judge W. Fletcher authored a lengthy dissent that was joined by Judges Pregerson, Reinhardt, Paez and Rawlinson. The dissent began: “The State of California may be about to execute an innocent man.” After a detailed review of the record, Judge Fletcher found that law enforcement officials had early on drawn the conclusion that Cooper was the killer. (At the time of the murders, he was an escaped prisoner who had been hiding out in a home next door to where the murders occurred.) Judge Fletcher also concluded, however, that once Cooper was the suspect, law enforcement “manipulated and planted evidence in order to convict Cooper. In the course of their investigation, they discounted, disregarded, and discarded evidence pointing to other killers. Their decision to close their eyes early in the investigation to the possibility that someone other than Kevin Cooper might be guilty has led us to the situation in which we find ourselves today.” And, in Judge Fletcher’s view, “the district court made things worse” by “obstruct[ing] and imped[ing] Cooper and his lawyers in almost every way imaginable.” Judge Fletcher concluded: “We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves to get this one right. We should have taken this case en banc and ordered the district judge to give Cooper the fair hearing he has never had.” Judge Wardlaw also wrote a dissent, joined by Judges Pregerson, Reinhardt, Thomas and Berzon. Judge Wardlaw agreed with Judge Fletcher that Cooper had not received a fair hearing on his claims. She concluded: “Granting rehearing en banc and remanding for a full and fair evidentiary hearing may not have resolved the question of guilt or innocence, but it most certainly would have given us confidence that Cooper received his due opportunity to prove the innocence he has insisted upon since his arrest.” Judge Fisher, joined by Chief Judge Kozinski and Judges Pregerson, Graber and Berzon, wrote a one-sentence dissent stating: “I generally agree with Judge Fletcher that we should have taken this case en banc to require the factual inquiry the previous en banc court expected to occur.” Judge Reinhardt also dissented separately to criticize the Ninth Circuit’s own handling of the matter and to urge reconsideration of circuit policy that precludes revealing the names of the judges voting for and against rehearing en banc, or even the numerical division. According to Judge Reinhardt, “the vote is extremely close, closer than the list of dissenters would suggest” and the court has an obligation to let the public know how the court votes on critical issues. Finally, Judge Rymer, a member of the three-judge panel that affirmed the denial of relief, wrote a concurrence “to highlight the main reasons [she] agree[s] with the court’s decision and not the dissents from failure to take the case en banc.” Judge Rymer took particular issue with Judge Fletcher’s dissent, accusing him of improperly marshaling the facts in the light most favorable to Cooper and ignoring the AEDPA.

For the Week of: 5/3/2009 Magistrate Judge recommends habeas relief for North Carolina death row inmate On May 6, 2009, United States Magistrate Judge P. Trevor Sharp issued an order and supplemental recommendation that habeas relief be granted to John Edward Burr. Burr v. Branker, 2009 WL 1298116 (M.D. N.C. May 6, 2009). Magistrate Judge Sharp had first recommended in late 2004 that relief be granted on a claim of ineffective assistance of counsel. At the request of the warden, that recommendation was stayed and the parties were permitted discovery and additional evidentiary development. Despite the new record, Magistrate Judge Sharp adhered to the prior finding that trial counsel performed deficiently in failing to develop evidence that the four-month-old victim’s head injury had been caused accidentally. Among defense counsel’s failings was the absence of any request for funding for expert assistance and insufficient time expended on reviewing complicated medical records. The Magistrate Judge also found that key prosecution witnesses could have been substantially impeached with their earlier accounts of the fall the victim was involved in not long before her death. (The fall was described as far more severe near the time it occurred. It was only over time that the details changed and the incident was minimized.) Suggestions that Burr was responsible for earlier injuries to the victim were also subject to attack. Instead of pursuing the viable accidental injury defense, counsel adopted a farfetched theory that a deranged stranger had seen the victim alone in her swing, entered the trailer and somehow caused the head injury. The Magistrate Judge concluded: “Trial counsels´ failure to review the medical evidence and consult with medical experts, when viewed in light of the medical testimony developed in this habeas proceeding that would have been exceedingly helpful to Petitioner´s defense, creates a reasonable probability that the outcome of his trial and sentencing proceeding would have been different had trial counsel represented Petitioner competently.” With regard to the state court’s finding that trial counsel did not perform deficiently, Magistrate Judge Sharp found that it had “reached a result that was significantly at odds with the evidence of record.” Further, the Magistrate Judge observed that the state post-conviction court “failed to consider relevant ABA Guidelines when evaluating the performance of counsel.” The Magistrate Judge then found: “The United States Supreme Court has repeatedly held that the ABA guidelines should be considered when assessing whether counsel´s performance was deficient. Strickland; Wiggins; Rompilla. Counsel in this case clearly failed to meet the standards of the Guidelines concerning investigation, preparation, and use of expert witnesses. As such, the failure of the [state post-conviction] court to find deficient performance, and resulting prejudice, was unreasonable and relief should be granted.”

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