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On February 23, 2018, a complaint and request for injunctive relief was filed in the United States District Court for the District of Columbia, Texas Defender Service, et al. v. Sessions, et al., 1:18-cv-00426-RBW.  This action under the Administrative Procedure Act,, 5 U.S.C. §§
551-59, 701-06, seeks injunctive and other relief to set aside the Final Rule regarding Certification Process For State Capital Counsel System, 78 Fed. Reg. 58,160-01 (Sept. 23, 2013), issued by the Department of Justice. Various comments challenging the applications of Arizona and Texas seeking certification as compliant with Chapter 154 have been submitted to the Department of Justice.

On February 26, 2018, the United States Supreme Court granted certiorari review in Madison v. Alabama, 17-7505.

The preamble to the questions presented explains: On January 25, 2018, the State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vesselischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.

On November 16, 2017, the Fourth Circuit Court of Appeals reversed the district court's denial of relief on Virginia death row inmate Anthony Juniper's Brady claim and remanded for an evidentiary hearing.  Juniper v. Zook, ___ F.3d ___ (4th Cir. Nov. 16, 2017).  The appeals court concluded that the district court had "failed to assess the plausibility of that claim through the proper legal lens."  The suppressed evidence involved statements by neighbors of the victims that could have called into question the testimony of key prosecution witnesses and allowed Juniper to mount an alternative suspect defense. 

On November 16, 2017, the Department of Justice published in the Federal Register a notice advising the public that the State of Arizona has requested certification of its capital counsel mechanism by the Attorney General and that public comments may be submitted to the Department of Justice regarding Arizona's request.  Also on November 16, 2017, the Department of Jusice published in the Federal Register a notice advising the public that the State of Texas has requested certification of its capital counsel mechanism by the Attorney General and that public comments may be submitted to the Department of Justice regarding Texas's request. The notices explain how to comment.  The comment period ends on January 16, 2018. 

In Kirkpatrick v. Chappell, ___ F.3d ___ (9th Cir. Oct. 10. 2017), the majority of a three-judge panel reversed the district court's ruling that certain claims in William Kirkpatrick's federal habeas petition were unexhausted and, therefore, subject to dismissal.

We have new software for capdefnet.org that we believe will improve the usefulness of the site to the capital defense community.  Please bear with us as we work through the glitches.  Persons who had accounts for HAT's secure page should have received instructions for obtaining a password using the new software.  Apologies for the lack of advance warnings.  Please report any problems or concerns to Wendy Peoples.

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 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.

In a pre-AEDPA case, Eric Kimble received habeas relief, on a claim, inter alia, of ineffective assistance of counsel at the penalty phase of Kimble's capital trial. Kimble v. Davis, 2:90-cv-04826-SVW (Order Granting in Part Petition for Writ of Habeas Corpus - June 19, 2017).

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.