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On September 8, 2021, the Supreme Court granted John Ramirez's application for stay of execution and his petition for writ of certiorari, which presents the following questions:  (1) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest? (2) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc– 5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?

The Clerk was directed to establish a briefing schedule that will allow the case to be argued in October or November 2021.

The Supreme Court decided today that the rule of Ramos v. Louisiana, 590 U.S. ___ (2020)--that a state jury must be unanimous to convict a criminal defendant of a serious offense--is a new rule of criminal procedure and, as such, it does not apply retroactively to cases on federal collateral review.  Edwards v. Vannoy, 593 U.S.

On May 17, 2021, the Supreme Court granted the certiorari petition of the Arizona Director of the Department of Corrections, Rehabilitation and Reentry in Shinn v. Ramirez, 20-1009.  The case below is Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).

The question presented is:

     The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e)(2), precludes a federal court from considering evidence outside the statecourt record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, subject to only two statutory exceptions not applicable here. In the cases below, the Ninth Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s merits review of a claim when a court excuses that claim’s procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), because the default was caused by post-conviction counsel’s negligence. The question presented, which drew an eight-judge dissent from the denial of en banc rehearing in each case, is:

     Does application of the equitable rule this Court announced in Martinez v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court’s merits review of a claim for habeas relief?

The Supreme Court issued its decision in Jones v. Mississippi, 593 U.S. ___ (April 22, 2021), ruling that its precedent does not require a sentencer to make a finding of permanent incorrigibility before sentencing an individual who committed a homicide when he or she was under 18 to a sentence of life without parole.  Although the Court adhered to its holding in Montgomery v. Louisiana, 577 U. S. 190 (2016) that its decision in Miller v. Alabama, 567 U. S.

Today, the Supreme Court granted a certiorari petition in a non-capital habeas case from the Sixth Circuit Court of Appeals, Brown v. Davenport, 20-826.  The question presented is:

On March 29, 2021, the Supeme Court issued a per curiam decision reversing a grant of habeas relief by the Sixth Circuit Court of Appeals in a Tennessee death penalty case on a claim that trial counsel had been ineffective at the guilt and sentencing phases of the trial by failing to suggest that the man who discovered the victim’s body was the actual killer.  Mays v. Hines, 592 U.S.

Governor Ralph Northam today signed legislation abolishing the death penalty, making Virginia the 23rd state, and the first in South, to stop executions.  Governor Northam signed the death penalty repeal into law during a ceremony outside the Greensville Correctional Center in Jarratt, Virginia. Prior to the bill signing, he toured the facility’s execution chamber, where 102 people have been executed since its opening in 1991.

The Supreme Court granted the government's certiorari petition in United States v. Tsarnaev, 20-443.  The petition presents the following questions:

1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case. 2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

The First Circuit Court of Appeals opinion under review is United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020)

The Supreme Court denied the certiorari petition of Texas death row inmate Charles Victor Thompson, 20-5951.  The questions presented were:

On September 30, 2020, California Governor Newsom signed into law AB-2512 which amends California's statute (Cal. Penal Code section 1376) related to the prohibition on executing the intellectually disabled.  The amendments alter the definition of intellectual disability, changing the third prong age of on-set requirement from "before 18 years of age" to "the end of the developmental period, as defined by clinical standards."  A defendant or death row inmate is entitled to a determination of a claim of exemption from the death penalty due to intellectual disability upon a showing of a prima facie case.  As defined in the amended statute, "'Prima facie showing of intellectual disability' means that the defendant’s allegation of intellectual disability is based on the type of evidence typically relied on by a qualified expert in diagnosing intellectual disability, as defined in current clinical standards, or when a qualified expert provides a declaration diagnosing the defendant as intellectually disabled."  If an evidentiary hearing is held concerning a death row inmate's claim of intellectual disability, the statute now provides that "an expert may testify about the contents of out-of-court statements, including documentary evidence and statements from witnesses when those types of statements are accepted by the medical community as relevant to a diagnosis of intellectual disability if the expert relied upon these statements as the basis for their opinion."   Under new subsection (g) of the statute, "The results of a test measuring intellectual functioning shall not be changed or adjusted based on race, ethnicity, national origin, or socioeconomic status."  

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."