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United States District Judge Ellison of the Southern District of Texas found that state post-conviction counsel’s ineffectiveness provided cause to overcome the procedural default of Travis Green’s ineffective assistance of trial counsel at sentencing claim. Green v. Stephens, 4:13-CV-1899 (S.D. Tex. May 10. 2017) (Memorandum and Order). Judge Ellison concluded that the defaulted claim was substantial, noting, inter alia:

In Jenkins v. Hutton, 582 U.S. ___ (June 19, 2017) (per curiam), the Supreme Court reversed a grant of sentencing phase relief where the Sixth Circuit erred in reaching the merits of Ohio death row inmate’s defaulted claim that his due process rights were violated because the trial court failed to instruct the jury that, when weighing aggravating and mitigating factors, the jury was limited to the two aggravating factors it found at the guilt phase of the trial.

In McWilliams v. Dunn, 582 U.S. ___ (June 19, 2017), an Alabama capital case, the Supreme Court ruled that petitioner's right to expert mental health assistance at sentencing under Ake v. Oklahoma, 470 U.S. 86 (1985) was violated. Petitioner was evaluated pre-trial at a state hospital for purposes of determining competence and mental state at the time of the offense, and prior to judicial sentence by a neuropsychologist employed by the State’s Department of Mental Health. He was denied, however, his request for appointment of an expert to assist in reviewing the prior evaluations and the extensive medical records in order to prepare and present mitigation evidence. The Alabama Court of Criminal Appeal’s finding of no violation of Ake was contrary to, or involved an unreasonable application of clearly established federal law.

On April 11, 2017, new Alabama Governor Kay Ivey signed into law SB16, which eliminates judicial override of jury sentencing recommendations in capital cases. The capital jury is no longer designated as advisory at the sentencing stage. Rather, its sentencing determination is final. The new law does not require unanimity for a death sentence. A death verdict is to be returned if at least ten of the twelve jurors agree on a death sentence.

In Moore v. Texas, 581 U.S. ___ (March 28, 2017), the Supreme Court (Ginsburg, with Kennedy, Breyer, Sotomayor, and Kagan; dissent by Roberts, with Thomas and Alito), vacated the judgment of the Texas Court of Criminal Appeals (“CCA”) which had denied relief to Bobby James Moore on his claim that he was intellectually disabled (“ID”) and therefore ineligible for execution.

The Eleventh Circuit ruled in Madison v. Commissioner, Ala. Dept. of Corrections, ___ F.3d ___ (11th Cir. March 15, 2017), that Vernon Madison is not competent to be executed and that the Alabama trial court's decision to the contrary relied on an unreasonable determination of the facts and involved an unreasonable application of the law.

On January 4, 2017, Secretary Julie Jones of the Florida Department of Corrections wrote to Governor Rick Scott to inform him that the Florida lethal injection protocol, which is attached to the letter, meets constitutional standards and certified that the Department of Corrections is prepared to administer an execution by lethal injection and has the necessary procedures, equipment, facilities, and personnel in place to do so.

On November 17, 2016, the Florida Supreme Court in another double murder case reduced two death sentences to life sentences on the ground of disproportionality. McCloud v. State.

On November 17, 2016, the Florida Supreme Court issued a per curiam opinion in Phillips v. State, a double murder case, reducing the defendant's two death sentences to sentences of life imprisonment on disproportionality grounds.

On August 2, 2016, the Delaware Supreme Court issued its decision in Rauf v. State finding that the Delaware death penalty statute is unconstitutional pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016). The Delaware Supreme Court answered five questions certified by the superior court where Benjamin Rauf's capital prosecution is pending.