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1/2 century aft gideon ... promise unfulfilled

No. 09-6306 Wilson v. Rees, et al.BOYCE F. MARTIN, JR., Circuit Judge, dissenting from denial of rehearing enbanc.  (Sentencing Law and Policy posted excerpts to this powerful dissent earlier today)

I continue to disagree with the claim-accrual analysis for method-of-execution claims announced in Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir. 2007), and therefore I dissent from the denial of rehearing en banc. See, e.g., Cooey v. Strickland, 489 F.3d 775, 776-78 (6th Cir. 2007) (Gilman, J., dissenting from the denial of rehearing
en banc).

In addition, I write to highlight this particularly ugly example of why “the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). [emphasis added]

scotus blog part 3 ... skinner

SCOTUS BLOG Part #3: Inside Texas–Dallas D.A. “without a doubt” would test DNA evidence

"...  It seems that in the pursuit of truth, like real estate, location is everything.  Had convicted murderer Henry Skinner requested post-conviction DNA testing in Dallas instead of Pampa, where the triple homicide occurred, the Supreme Court would not be hearing arguments in Skinner v Switzer this Wednesday — or any other time.

"While Pampa’s District Attorney Lynn Switzer decided to “stand firm” and deny access to the Skinner evidence, 370 miles away, in Dallas, fellow chief prosecutor Craig Watkins, takes an opposite stance. “If I was faced with that decision, it would be an easy one,” he told me recently. “Without a doubt, I would test all the evidence. Whether Mr. Skinner waived his right to test the evidence at his trial is irrelevant. Whether justice has been served is what’s relevant. ...” [RESTOF SCOTUSblog STORY]

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I would not be surprised one bit if the DNA evidence in question, if tested, ultimately confirmed SKINNER's guilt. 

Why not just  test the evidence?  Respondent's counsel have shared a podcast with SCOTUSblog describing the argument against testing.  Listen @ Argument day podcast with respondent’s counsel in Skinner v. Switzer.

 

skinner v. switzer

Skinner v. Switzer (No. 09-9000) --  Whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983, or whether such a claim may be asserted only in a petition for writ of habeas corpus.  Further information on Skinner is available at OnPoint - by the Wisconsin State Public Defender.

SCOTUS oral argument for Skinner is today  -- Transcripts of oral arguments  are posted on the SCOTUS Web site  the same day argument is heard ...  Same-day transcripts are official but subject to final review.  The SCOTUS Blog case file is here.

 

actual innocence debate

IN RE TROY ANTHONY DAVIS.  ON PETITION FOR WRIT OF HABEAS CORPUS.  No. 08–1443.  Decided August 17, 2009.

Cite as: 557 U. S. ____ (2009).   JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring.

"JUSTICE SCALIA’s dissent is wrong in two respects.First, he assumes as a matter of fact that petitioner Davisis guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have re-canted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconvic-tion] affidavits that, if reliable, would satisfy the thresholdshowing for a truly persuasive demonstration of actualinnocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The sub-stantial risk of putting an innocent man to death clearly provides an adequate justification for holding an eviden-tiary hearing..."

_________________________

IN RE TROY ANTHONY DAVIS.  ON PETITION FOR WRIT OF HABEAS CORPUS (No. 08–1443. Decided August 17, 2009).  JUSTICE SCALIA, with whom JUSTICE THOMAS joins,dissenting:

"Today this Court takes the extraordinary step—one nottaken in nearly 50 years—of instructing a district court toadjudicate a state prisoner’s petition for an original writ of habeas corpus..."

AND:

"This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitu-tionally cognizable. See Herrera v. Collins, 506 U. S. 390, 400–401, 416–417 (1993); see also House v. Bell, 547 U. S. 518, 555 (2006); District Attorney’s Office for Third Judi-cial Dist. v. Osborne, ante, at 18..."

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Scotusblog. Innocence Claim Rejected.  Lyle Denniston | Tuesday, August 24th, 2010 1:54 pm

"Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot.   In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent...”   [emphasis added]

MAGWOOD v . PATTERSON, WARDEN, et al.

MAGWOOD  v  PATTERSON, WARDEN, et al. No. 09–158. Argued March 24, 2010—Decided June 24, 2010

SYLLABUS IN PART:  Petitioner Dagwood was sentenced to death for murder. After the Alabama courts denied relief on direct appeal and in postconviction proceedings, he sought federal habeas relief. The District Court conditionally granted the writ as to his sentence, mandating that he be released or resentenced.

The state trial court sentenced him to death a second time. He filed another federal habeas application, challenging this new sentence on the grounds that he did not have fair warning at the time of his offense that his conduct would permit a death sentence under Alabama law, and that his attorney rendered ineffective assistance during the resentencing proceeding. The District Court once again conditionally granted the writ.

The Eleventh Circuit reversed, holding in relevant part that Magwood’s challenge to his new death sentence was an unreviewable “second or successive” challenge under 28 U. S. C. §2244(b) because he could have raised his fair-warning claim in his earlier habeas application.

Held:  The judgment is reversed and the case is remanded...

___________________________________________________

ANALYSIS IN BRIEF:

SCOTUSblog - "Court rules in favor of capital defendant in Magwood v. Patterson" - Magwood v. Patterson, opinion recap.  Kevin Russell | Thursday, June 24th, 2010

"Federal habeas law generally allows prisoners to bring a single habeas petition; “second and successive” petitions are highly disfavored and must meet very strict criteria.  This morning, the Court held in Magwood v. Patterson (No. 09-158), that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a “second or successive” petition), even if it raises grounds that could have (but were not) made against the original sentence.  Writing for himself and Justices Stevens, Scalia, Breyer, and Sotomayor, Justice Thomas explained that under the text of the federal habeas statute, when a prisoner is resentenced and appeals the new sentence, he is challenging a different judgment than was challenged in his prior habeas petition.  Justice Kennedy, joined by the Chief Justice and Justices Ginsburg and Alito, dissented."

the great writ

Court gives hope to death-row inmates  [Maka Hutson - SCOTUSBlog] - "Yesterday, in Holland v. Florida (No. 09-5327), the Court held that Section 2244(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA), which requires state prisoners to file their federal habeas petitions within one year after their direct appeals become final, is subject to equitable tolling. [In February, Kate Wevers of Harvard Law School previewed and recapped the oral argument here and here.] ..."  [RESTOFPOST]

renico v. lett (09-338)

RENICO v. LETT ( No. 09-338 ) 316 Fed. Appx. 421, reversed and remanded. No. 09–338. Argued March 29, 2010—Decided May 3, 2010 Held:  Because the Michigan Supreme Court’s decision in this case was not unreasonable under AEDPA, the Sixth Circuit erred in granting Lett habeas relief. Pp. 5–12.

The Roberts ["No soup for you or any other criminal defendant"] Court:   "In concluding that Lett is not entitled to a writ of habeas corpus, we do not deny that the trial judge could have been more thorough before declaring a mistrial. [emphasis added] 

As the Court of Appeals pointed out, id., at 427–428, she could have asked the foreperson additional followup questions, granted additional time for further deliberations, or consulted with the prosecutor and defense counsel before acting. Any of these steps would have been appropriateunder the circumstances. None, however, was required— either under our double jeopardy precedents or, by extension, under AEDPA. Pp. 12."

not innocence ... process

The Wider Impact of Hank Skinner’s Case (Texas Observer.  Dave Mann. Published on: Tuesday, April 13, 2010):

"The question before the [SCOTUS] in the Skinner case is what legal process inmates should use when seeking DNA testing — a much wider issue missing from most of the media coverage of Skinner.  In Texas, inmates who want access to DNA evidence must file a writ of habeas corpus, seeking to test DNA as a path to overturning their conviction.  That all sounds good enough. But the problem is that there are quite a few restrictions on habeas petitions, according to legal scholars. For one, the statute of limitations is short. Second, you’re allowed to file only one habeas petition." [See Finality of Determination.  28 U.S.C. 2244] 

"So if you file once, and more DNA material surfaces later, you’re out of luck. And, third, federal courts are supposed to show deference to state courts in habeas petitions. That means, federal courts can only overturn state rulings when they’re clearly unreasonable. You could argue that the rulings by Texas’ Court of Criminal Appeals are frequently unreasonable, but it’s luck of the draw whether a federal judge will see it that way."

"In other words, your chances of winning a habeas claim to access DNA evidence aren’t good in Texas. And so it’s been so far for Skinner.  “It’s a significant procedural impediment to require these cases to be brought via habeas,” says University of Texas law professor Jordan Steiker, who’s written extensively on constitutional law and the death penalty."

"But in other areas of the country, inmates can seek access to DNA evidence through federal civil rights law. That’s a real advantage because a civil rights petition is much less restrictive than habeas. For one, you can file multiple civil rights claims. And, two, federal courts don’t have to defer to state courts when considering a defendant's civil rights. 

Federal appeals courts are divided on the issue. Both the 4th Circuit and 5th Circuit Court of Appeals, which covers Texas, have ruled that requests for post-conviction DNA testing must be filed through habeas petitions. Other federal circuits have ruled it a civil rights issue. When circuit courts are divided, the Supreme Court often takes a case to settle the issue—and that's where Skinner comes in."

If Skinner wins—and the Supreme Court rules that he can use civil rights law to obtain DNA evidence—it would open the door for many other inmates to obtain post-conviction DNA testing.  The Supreme Court is expected to dcecide by next Monday, April 19, if it will hear Skinner’s case. If it accepts the case, oral arguments would take place next fall. If it rejects his case, Skinner could face execution again in 30 days."

 

wider impact? hank skinner's case

The Wider Impact of Hank Skinner’s Case (Texas Observer.  Dave Mann. Published on: Tuesday, April 13, 2010):

"When the U.S. Supreme Court halted the execution of Hank Skinner in late March, much of the media coverage focused on the particulars of Skinner’s case: The near-execution of a possibly innocent man halted by a rare last-minute reprieve.

"Skinner was eating his last meal—at least what was supposed to have been his last meal—not far from the death chamber in Huntsville on March 24 when the High Court granted him a stay. Most condemned men who come that close to the execution chamber in Texas don’t live to tell about it..." [REST OF THE STORY]

SOTOMAYOR, J., delivered the opinion of the Court ...

Wood v. Allen (No. 08–9156) Argued November 4, 2009—Decided January 20, 2010.  SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined.

"Supreme Court rejects ineffective assistance of counsel claim in capital case" [Jaclyn Belczyk. JURIST - Legal News & Research]: "The US Supreme Court on Wednesday ruled 7-2 in Wood v. Allen that a state court reasonably concluded that, during the sentencing phase of a capital case, the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel. The Court affirmed the decision [opinion, PDF] of the US Court of Appeals for the Eleventh Circuit, finding it had correctly applied the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. Writing for the majority, Justice Sonia Sotomayor concluded:

"We hold simply that, even under petitioner's reading of § 2254(d)(2) [of the AEDPA], the state court's conclusion that Wood's counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts..."