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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.  

United States Attorney General William Barr, under the authority conferred to him by 28 U.S.C. 2265, has "determine[d] and certif[ied] that Arizona has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state postconviction proceedings brought by indigent prisoners who have been sentenced to death, including provision of standards of competency for the appointment of counsel in such proceedings, which satisfies the requirements of chapter 154."  He further determined and certified "that Arizona had an established capital counsel mechanism satisfying the requirements of chapter 154 as of May 19, 1998, and that Arizona has continuously had a capital counsel mechanism satisfying the requirements of chapter 154 since that date."  This decision means that Arizona is entitled to seek the benefit of special federal habeas corpus procedures designed to expedite the proceedings in cases where state post-conviction counsel had been appointed on or after May 19, 1998.   

The order certifying Arizona as compliant with Chapter 154's requirements and explaining the decision will be published in the Federal Register on April 14, 2020.

An appeal of this decision may be taken to the D.C. Circuit Court of Appeals.  Attorney General Barr declined to issue a stay of his decision pending appeal.

On April 7, 2020, the United States Court of Appeals for the District of Columbia Circuit issued its decision in IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES, vacating the preliminary injunction that had been issued by the lower court.  The lower court’s ruling had barred the execution of four federal death row inmates through use of the lethal injection protocol promulgated by the Bureau of Prisons and approved by the United States Attorney General last year.  The primary issue in the appeal was the meaning of 18 U.S.C. § 3596(a), part of The Federal Death Penalty Act of 1994 (FDPA).  This statute requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.”  The lower court agreed with the plaintiffs’ construction of the statute as requiring not only that the federal government utilize the method of execution proscribed by the law of the State where the sentence had been imposed, but also to follow all the subsidiary details set forth in state execution protocols.  Two members of the appeals court panel disagreed with the lower court but for different reasons.  One, Judge Katsas, concluded that the FDPA regulates only the choice among execution methods, e.g., the choice to use lethal injection instead of hanging or electrocution.  The other, Judge Rao, found that the FDPA also requires the federal government to follow execution procedures set forth in state statutes and regulations, but not execution