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.
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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.
April 20, 2020 - Supreme Court issues decision in Ramos v. Louisiana
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
April 6, 2020 - Motion for Equitable Tolling Based on COVID-19
On April 3, 2020, federal habeas counsel representing Robert Maury filed MOTION FOR AN EXTENSION OF STAY OF FEDERAL HABEAS PROCEEDINGS AND EQUITABLE TOLLING in the Eastern District of California. Maury v. Davis, 2:12-cv-01043-WBS-DB (E.D. Cal.). The motion is premised on the difficulties created by the COVID-19 pandemic in conducting the necessary habeas investigation. In support of the motion is a declaration by Emily Olson-Gault, Director and Chief Counsel of the American Bar Association Death Penalty Representation Project. The declaration discusses in detail the standard of care applicable to post-conviction/habeas investigation, including the need for face-to-face interviews.
On March 23, 2020, the Supreme Court (Kagan, with Roberts, Thomas, Alito, Gorsuch and Kavanaugh; dissent by Breyer, with Ginsburg and Sotomayor) held that the Due Process Clause does not compel the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. Kahler v. Kansas, 589 U.S. ___ (March 23, 2020).
February 25, 2020 - Recent Supreme Court Developments
On February 24, 2020, the parties agreed to the dismissal of the certiorari petition in Methena v. Malvo, 18-217, in light of new law in Virginia eliminating a sentence of life without parole for juveniles. (Malvo, who was a juvenile at the time of the murders he was convicted of, was sentenced to life in prison without parole under a discretionary, rather than mandatory, sentencing scheme.) The question presented to the Supreme Court, on which it had granted review, was: "Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?"
On February 25, 2020. the Supreme Court issued its decision in McKinney v. Arizona, 589 U.S. ___ (Jan. 25, 2020). The Supreme Court (Kavanaugh, J., with Roberts, C. J., and Thomas, Alito and Gorsuch, JJ.) held that reweighing of the existing aggravating and mitigating circumstances under Clemons v. MIssissippi, is a permissible remedy for an Eddings violation, i.e., where constitutionally relevant mitigating circumstances were not considered by the sentencer, and when an Eddings error is found on collateral review, a state appellate court may conduct the reweighing on collateral review. The Court, among other things, rejected McKinney's argument that Clemons no longer remains good law in the wake of Ring v. Arizona, 536 U. S. 584, and Hurst v. Florida, 577 U. S. ___. The Court explained: "Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances." And although there was a Ring/Hurst violation in this case because the sentencing judge rather than the jury found the aggravating factors, that provided no basis for relief to McKinney because Ring and Hurst do not apply retroactively in collateral proceedings such as this one. The Court was unpersuaded by McKinney's attempt to characterize the state supreme court's decision below as reopening the direct appeal.
Justice Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan, JJ. Justice Ginsburg states: "I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character. I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court."
On January 23, 2020, the Florida Supreme Court reversed a grant of sentencing relief to Florida death row inmate Mark Poole. State v. Poole, ___ So.3d ___ (Fla. Jan. 23, 2020). The post-conviction court had granted relief based on its application of Hurst v. State, 202 So.3d 40,57 (Fla. 2016), which had held: "[B]efore the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death." Poole's sentencing jury had not been unanimous as to the death sentence and the post-conviction court concluded that the Hurst violation was not harmless beyond a reasonable doubt. The Florida Supreme Court revisited its earlier decision and "recede[s] from Hurst v. State except to the extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt." This holding does not impact the revised Florida statute that now requires jury unanimity for a death sentence.
November 30, 2019 - Federal habeas relief granted to two California death row inmates
On November 25, 2019, United States District Court Judge Otis D. Wright, II of the Central District of California granted federal habeas relief to Anthony Oliver on a Batson claim. Oliver v. Davis, 2:10-cv-08404-ODW (C.D. Cal. Nov. 25, 2019) - Order Granting in Part and Denying in Part Petition for Writ of Habeas Corpus. Oliver, a Black man, was convicted and sentenced to death in Los Angeles County for a double murder and the attempted murder of a third victim. All victims were Black. Oliver's mistrial request was granted during the initial trial proceedings following the verdicts of acquittal of police officers in the Rodney King case which resulted in "civil unrest" in Los Angeles. During the subsequent jury selection proceedings, Oliver raised several challenges to the prosecution's removal of seven Black prospective jurors. Looking only to one of these prospective jurors, and after engaging in comparative juror analysis as had the California Supreme Court, Judge Wright ruled that " the only finding supported by the record is that the prosecutor’s excusal of V.H. was 'motivated in substantial part by discriminatory intent.' (Citation omitted.) Petitioner has shown that the California Supreme Court made an unreasonable determination of the facts under § 2254(d)(2) in denying his Batson claim and has shown clear and convincing evidence to rebut the presumption of correctness under § 2254(e)(1)."
On November 22, 2019, United States District Court Judge S. James Otero of the Central District of California granted federal habeas relief as to the death sentence of Mary Ellen Samuels based on trial counsel's ineffective assistance in failing to limit and exclude the mass of bad character evidence that was admitted during the guilt-innocence phase of the trial. Samuels v. Espinoza, 2:10-cv-03225-SJO (C.D. Cal. Nov. 22, 2019) - Order Denying in Part and Granting in Part Petition for Writ of Habeas Corpus. Samuels was convicted of soliciting and conspiring in the murders of Robert Samuels, her husband, and James Bernstein, her husband's alleged killer. The jury returned a verdict of death after almost five days of deliberations. The sole prosecution witness at the penalty phase was the sister of Samuels' deceased husband who provided relatively brief victim impact testimony. The prosecution relied overwhelmingly on the guilt phase evidence in seeking a death sentence. "The bulk of the objectionable evidence concerned Petitioner's use of cocaine and marijuana, her daughter Nicole's use of cocaine and Petitioner's provision of cocaine to her, Petitioner's provision of cocaine to Nicole's friends, alcohol use by Nicole and her underage friends while out with Petitioner, and photographs Petitioner took with Nicole to enter a "cheesecake photo" contest. The evidence was not relevant to the crimes charged, even considering Nicole's alleged involvement in the crimes and considering relevance broadly." Reviewing the record, Judge Otero concluded that "[h]ad counsel adequately objected and refrained from introducing the evidence at the guilt phase of trial, there is a reasonable probability that the trial court would have excluded it. There is also a reasonable probability that the jury would have returned a verdict for life without the possibility of parole." Further, the claims satisfy the limitations on relief in 28 U.S.C. § 2254(d) because "[i]t would be unreasonable to conclude that the evidence was not prejudicial when considered at the penalty phase of trial or that counsel acted strategically in presenting or failing to object to it."
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