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.
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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.
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
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).
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."