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On June 19, 2018, the Department of Justice sent a letter to Texas Attorney General Ken Paxton requesting answers to questions about Texas' pending request for certification for purposes of obtaining the benefits of Chapter 154 of Title 28.  The questions were based largely on comments submitted in response to the Texas application.  There is no specific due date for the response.  

On March 20, 2018, the Supreme Court granted a stay of execution to Missouri death row inmate Russell Bucklew pending the disposition of his certiorari petition.  The Chief Justice and Justices Thomas, Alito and Gorsuch would have denied the stay application.  Bucklew's cert petition raises the following questions: (1) Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? (2) Must evidence comparing a state’s

On March 21, 2018, the Supreme Court issued its decision in Ayestas v. Davis, 584 U.S. ___ (March 21, 2018).  This case concerns the denial of funding to a habeas petitioner.  The Supreme Court assumes, without deciding, that a COA is required to appeal the denial of funds and finds that the rule applied by the district court in denying funding was not only debatable but actually erroneous.  It further finds that the district court’s ruling on the funding request was not an administrative decision such that the court of appeals and the Supreme Court lacked jurisdiction to hear the appeal.  Turning to the merits, the Supreme Court held that the lower courts applied the wrong legal standard when denying petitioner funds under 18 U.S.C. §3599(f).  The statute authorizes funding that is “reasonably necessary” for the representation of an applicant.  The Fifth Circuit’s requirement that an applicant establish a “substantial need” for the funding was arguably more demanding than the statute requires.  The Fifth Circuit exacerbated the problem by invoking precedent that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.”  This precedent is too restrictive 

February 26, 2018 - Chapter 154 developments

On February 23, 2018, a complaint and request for injunctive relief  was filed in the United States District Court for the District of Columbia, Texas Defender Service, et al. v. Sessions, et al., 1:18-cv-00426-RBW.  This action under the Administrative Procedure Act,, 5 U.S.C. §§
551-59, 701-06, seeks injunctive and other relief to set aside the Final Rule regarding Certification Process For State Capital Counsel System, 78 Fed. Reg. 58,160-01 (Sept. 23, 2013), issued by the Department of Justice. Various comments challenging the applications of Arizona and Texas seeking certification as compliant with Chapter 154 have been submitted to the Department of Justice.

On February 26, 2018, the United States Supreme Court granted certiorari review in Madison v. Alabama, 17-7505.

The preamble to the questions presented explains: On January 25, 2018, the State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vesselischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.

On November 16, 2017, the Fourth Circuit Court of Appeals reversed the district court's denial of relief on Virginia death row inmate Anthony Juniper's Brady claim and remanded for an evidentiary hearing.  Juniper v. Zook, ___ F.3d ___ (4th Cir. Nov.

On November 16, 2017, the Department of Justice published in the Federal Register a notice advising the public that the State of Arizona has requested certification of its capital counsel mechanism by the Attorney General and that public comments may be submitted to the Department of Justice regarding Arizona's request.  Also on November 16, 2017, the Department of Jusice published in the Federal Register a

In Kirkpatrick v. Chappell, ___ F.3d ___ (9th Cir. Oct. 10. 2017), the majority of a three-judge panel reversed the district court's ruling that certain claims in William Kirkpatrick's federal habeas petition were unexhausted and, therefore, subject to dismissal. 

In a pre-AEDPA case, Eric Kimble received habeas relief, on a claim, inter alia, of ineffective assistance of counsel at the penalty phase of Kimble's capital trial.  Kimble v. Davis, 2:90-cv-04826-SVW (Order Granting in Part Petition for Writ of Habeas Corpus - June 19, 2017).

September 18, 2017 - New Software for capdefnet.org

We have new software for capdefnet.org that we believe will improve the usefulness of the site to the capital defense community.  Please bear with us as we work through the glitches.  Persons who had accounts for HAT's secure page should have received instructions for obtaining a password using the new software.  Apologies for the lack of advance warnings.  Please report any problems or concerns to Wendy Peoples.