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On August 24, 2020, the Ninth Circuit Court of Appeals denied the petitions for rehearing en banc filed by the Director of the Arizona Department of Correction in the cases of Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019) and Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).  In the Jones case, a three-judge panel of the Ninth Circuit affirmed a grant of habeas relief on a claim of ineffective assistance of counsel at the guilt-innocence phase of the trial.  Although that claim was procedurally defaulted, the ineffective assistance by state post-conviction counsel was found to have provided cause for excusing the default.  The evidence that was presented to demonstrate post-conviction counsel's ineffectiveness was also considered as to the merits of the trial ineffective assistance claim.  In the Ramirez case, a three-judge panel of the Ninth Circuit ruled that state post-conviction counsel's ineffectiveness provided cause to excuse the procedural default of a claim of ineffective assistance by trial counsel at sentencing.  It further found that the district court had erred in denying Ramirez evidentiarydevelopment of his ineffective assistance of trial counsel claim, and that on remand he was entitled to evidentiary development to litigate the merits of that claim.  Judge Collins, joined by Judges Callahan, Ikuta, R. Nelson, Lee, Bress, Bumatay and VanDyke, dissented from denial of the rehearing petitions.  Jones v. Shinn, 18-99006 (Order Aug. 24, 2020)Ramirez v. Shinn, 10-99023 (Order Aug. 24, 2020).  Judge Collins argues that the two panel decisions "disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the [AEDPA] on the use of new evidence in habeas corpus proceedings. See 28 U.S.C. § 2254(e)(2)."  Because in § 2254(e)(2), Congress explicitly abrogated the judicially created  "cause and prejudice" standard and replaced it with a much more demanding standard, the Ninth Circuit, according to Judge Collins, has "no authority to rewrite the statute and to engraft a judge-made Martinez exception onto it."

On July 15, 2020, the Sixth Circuit Court of Appeals granted rehearing en banc in Hill v. Anderson, 99-4317.  In 2018, death row inmate Danny Hill had prevailed in the Sixth Circuit on an Atkins claim.  Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018).  The Supreme Court, in a per curiam opinion, reversed, holding that the Sixth Circuit erred in its 28 U.S.C. § 2254(d) analysis by relying on Supreme Court precedent that had yet to be decided at the time the state courts addressed the claim.  Shoop v. Hill, 139 S.Ct. 504 (2019).  On remand, the Sixth Circuit again found that Hill was entitled to relief on his Atkins claim.  Hill v. Anderson, 960 F.3d 260 (6th Cir. 2020).  In granting en banc review, the panel decision granting relief was vacated.  Argument before the en banc court will be heard on December 2, 2020, following the filing of supplemental briefs.

The United States Supreme Court has affirmed the Tenth Circuit Court of Appeals' decision in Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017), which granted federal habeas corpus relief to Oklahoma death row inmate Patrick Dwayne Murphy, on the ground that Oklahoma lacked jurisdication to try him because  Murphy is a member of the Muscogee (Creek) Nation and the crime was committed in Indian country.   Sharp v. Murphy, 591 U.S. ___ (July 9, 2020), relying on McGirt v. Oklahoma, 591 U.S. ___ (July 9, 2020).  

On June 16, 2020, the Supreme Court issued a stay of Texas death row inmate Ruben Guetierrez's then-pending execution.  The order read:

     The application for stay of execution of sentence of death 
presented to Justice Alito and by him referred to the Court is 
granted pending the disposition of the petition for a writ of 
certiorari.  Should the petition for a writ of certiorari be 
denied, this stay shall terminate automatically.  In the event 
the petition for a writ of certiorari is granted, the stay shall 
terminate upon the sending down of the judgment of this Court.  
The District Court should promptly determine, based on whatever 
evidence the parties provide, whether serious security problems 
would result if a prisoner facing execution is permitted to 
choose the spiritual adviser the prisoner wishes to have in his 
immediate presence during the execution.

Gutierrez v. Saenz, 19-8695 (19A1052) (June 16, 2020). 

On June 9, 2020, the United States District Court for the Southern District of Texas, in case number 1:19-CV-185, had issued an Order staying the upcoming June 16th execution.  The case is a § 1983 action challenging the constitutionality of Texas’ DNA testing statute and the refusal of the Texas

On June 15, 2020, the Department of Justice announced that Attorney General William Barr had directed the Federal Bureau of Prisons to schedule execution dates for four federal death row inmates.  Daniel Lewis Lee is now scheduled to be executed on July 13, 2020.  Wesley Ira Purkey is scheduled to be executed on July 15, 2020.  Dustin Lee Honken is scheduled to be executed on July 17, 2020.  Keith Dwayne Nelson is scheduled to be executed on August 28, 2020.  The executions are to take place at the U.S. Penitentiary Terre Haute, Indiana.  

The Supreme Court in a per curiam opinion in Andrus v. Texas, 590 U.S. ___ (June 15, 2020), ruled that trial counsel in this Texas death penalty case performed deficiently as to the sentencing phase by: (1) performing "almost no mitigation investigation, overlooking vast tranches of mitigating evidence"; (2) presenting evidence that "backfired by bolstering the State's aggravation case"; and (3) failing to adequately "investigate the State's aggravating evidence."  Regarding prejudice, the Supreme Court found it unclear whether the Texas Court of Criminal Appeals considered this prong of Strickland when it rejected in a single sentence the recommendation of the state habeas court to grant a new sentencing hearing based on ineffective assistance of counsel.  It observed that the concurring opinion by the state appellate court did analyze prejudice.  In that analysis, the concurrence appeared to assume that the Strickland  prejudice inquiry turns principally on how the facts of the case at issue compare with the facts in Wiggins.  The Supreme Court noted, however, "that we have never before equated what was sufficient in Wiggins with what is necessary to establish prejudice." The case is remanded for the Texas Court of Criminal Appeals "to address Strickland prejudice in light of the correct legal principles articulated" in this decision.    

The Supreme Court has issued its decision in Banister v. Davis, 590 U.S. ___ (June 1, 2020), ruling that a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment does not qualify as a successive petition. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding. The opinion was authored by Justice Kagan.  Justice Alito filed a dissenting opinion, joined by Justice Thomas.  

On May 4, 2020, the Supreme Court granted review in Edwards v. Vannoy, 19-5807.  The question presented, as written by the Court, is: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

May 5, 2020 - Chapter 154 Update

On April 29, 2020, Petition for Review was filed in Federal Public Defender of Arizona, et al. v. Barr, 20-1144 (D.C. Circuit), invoking a review of the Attorney General’s April 14, 2020 decision certifying Arizona’s capital counsel mechanism under 28 U.S.C. §§ 2261-2265.  On May 1, 2020, Petitioners' Motion for Stay Pending Judicial Review and Request for Administrative Stay was filed.  

On April 20, 2020, the United States Supreme Court ruled that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.  Ramos v. Louisiana, 590 U.S. ___ (April 20, 2020).  The petitioner in the case, Evangelisto Ramos, was convicted of a serious crime in Louisiana by a vote of 10-2.  He received a sentence of life imprisonment without the possibility of parole.  At the time of Ramos's trial, only Louisiana and Oregon allowed for conviction of a serious felony by a non-unanimous jury; all other states and the federal government required jury unanimity for such a conviction.  Louisiana and Oregon had adopted their non-unanimity rules in 1898 and during the 1930's, respectively, in an effort to dilute or eliminate the influence of African-American and other minority jurors.  But at the time the Sixth Amendment was adopted, the requirement of juror unanimity was considered a part of the right to trial by an impartial jury. The Supreme Court was entrusted to preserve and protect that rule and could not engage in a cost-benefit analysis in an effort to determine whether the unanimity requirement was important enought to retain.