On remand from the Supreme Court for consideration of Davis v. Ayala, 135 S.Ct. 2187 (2015), the Sixth Circuit (Donald, with Daughtrey and Gibbons) again finds the state prisoner entitled to habeas relief. McCarley v. Kelly, ___ F.3d ___, 2015 WL 5255206 (6th Cir. Sept. 10, 2015). Petitioner was convicted of the aggravated murder of a woman who had filed a paternity suit naming petitioner as the father of her two year old son. The son was present when the victim was killed two months later. At trial, a child psychologist was allowed to testify about statements made by the victim’s son during therapy sessions that were initiated at the suggestion of the police. (The police were unable to extract information from the young boy and hoped the psychologist would be more successful. The psychologist was told to tell the police anything the boy revealed about the crime for use in the investigation.)
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On October 1, 2015, the Fifth Circuit (per curiam - Stewart, Higginbotham, Owen) issued an unpublished opinion granting Texas death row inmate Troy Clark a COA from the district court’s denial of Clark’s Rule 60(b)(6) motion. The issues are whether the district court abused its discretion in denying the motion for being untimely and for failing to present extraordinary circumstances. Clark v. Stephens, ___ Fed.Appx. ___, 2015 WL 5730638 (5th Cir. Oct. 1, 2015).
On December 24, 2014, the Eleventh Circuit issued a COA in Peterka v. Secretary, FL DOC, 14-13081-P on the following:
Is the Petitioner Peterka entitled to assert claims of ineffective assistance of trial counsel relying on Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 199 (2013) by invoking Federal Rule of Civil Procedure 60(b)(6) to argue that the judgment denying his original habeas petition should be reopened as to ground 5 to allow him to establish cause and prejudice for his failure to exhaust his ineffective assistance of counsel claims in state court.
United States District Court Judge D.P. Marshall, Jr. of the Eastern District of Arkansas, granted in part Timothy Kemp’s request for an evidentiary hearing on the State’s procedural defenses. Kemp v. Hobbs, 2014 WL 4079020 (E.D. Ark. Aug. 14, 2014). Kemp’s claims of ineffective assistance of trial counsel related to his alleged mental illness, frontal lobe damage and childhood trauma were procedurally defaulted as a result of alleged ineffective assistance by state post-conviction counsel. Judge Marshall concluded that Kemp was entitled to an evidentiary hearing to determine whether trial counsel was ineffective at either the guilt or sentencing phase for failing to investigate and present the mental state and trauma evidence. “That decision will, under Trevino, determine whether Kemp may present these arguments on the merits notwithstanding his failure to develop them in state court.” Put another way, unless Kemp establishes that he was prejudiced by post-conviction counsel’s failure to raise the claims, they will remain procedurally defaulted.
In Henness v. Bagley, ___ F.3d ___, 2014 WL 4401252 (6th Cir. Sept. 8, 2014), the Sixth Circuit (Siler, with Boggs and Sutton) affirmed the denial of Ohio death row inmate Warren Henness’s Rule 60(b) motion which alleged that intervening changes in the law established cause to overcome the procedural default of his ineffective assistance of trial counsel claims. The panel found that “neither Martinez nor Trevino sufficiently changes the balance of the factors for consideration under Rule 60(b).” In addition, the Sixth Circuit has previously ruled that Martinez does not apply to Ohio and has questioned whether Trevino does. But even assuming that Trevino does apply to Ohio, the panel ruled that Henness was unable to meet the requirement of presenting a substantial claim as to both portions of the Strickland test.
In Canales v. Stephens, ___ F.3d ___, 2014 WL 4290612 (5th Cir. Aug.29, 2014), a prison killing case, the Fifth Circuit (Prado, with Jolly and Davis) reversed the district court’s denial of relief on a procedurally defaulted claim of ineffective assistance of counsel (IAC) at sentencing and remanded for consideration of the claim pursuant to Martinez and Trevino. The claim alleged that trial counsel failed to thoroughly investigate and present mitigation evidence. Canales further alleged that state habeas counsel failed to conduct the mitigation investigation necessary to raise the claim due to counsel’s mistaken belief that funding was capped. The panel agreed with Canales that the performance of state habeas counsel fell below an objective standard of reasonableness.
United States District Court Judge William K. Sessions, III of the District of Vermont granted relief to federal death row inmate Donald Fell on a claim of juror misconduct that was premised on the juror visiting the crime scenes during trial and reporting his observations to other jurors, conduct the juror denied at the post-conviction hearing. United States v. Fell, 2:01-cr-00012 (D. Vermont July, 24, 2014). Judge Sessions concluded that the juror’s hearing testimony was not credible and Fell had established the misconduct occurred. Judge Sessions found that not only did the government fail to rebut the presumption of prejudice that arose from the juror’s exposure to extra-record information, he also found that the juror’s investigation was not harmless in that it provided additional facts supporting certain aggravating factors and countered mitigation arguments. Judge Sessions further ruled that Fell was entitled to relief independently on the basis of juror bias. He explained: “Juror 143’s brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial demonstrate a partiality that would have resulted in his eviction from the panel during trial, and now invalidates Fell’s conviction.”
United States District Court Judge Cormac J. Carney of the Central District of California has ruled that “[i]nordinate and unpredictable delay” in California death penalty cases post-trial
has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.
Therefore, Judge Carney vacated the death sentence of Ernest Jones. Jones v. Chappell, ___ F.Supp.2d ___, 2014 WL 3567365 (C.D. Cal. July 16, 2014).
United States District Court Judge J. Leon Holmes of the Eastern District of Arkansas found that death row inmate Thomas Springs was “entitled to an evidentiary hearing on the question of whether he has a substantial claim of ineffective assistance of counsel at trial and during the penalty phase” on numerous claims related to Springs’ mental health and on the issue of whether state post-conviction counsel was ineffective in failing to pursue those claims. Springs v. Hobbs, 2014 WL 2815804 (E.D. Ark. June 23, 2014). Judge Holmes also included in the evidentiary hearing trial counsel’s failure to call Springs’ daughters at sentencing and state post-conviction counsel’s failure to call her at the post-conviction proceeding.
In DeBruce v. Commissioner, Alabama Department of Corrections, (11th Cir. July 15, 2014), a robbery-murder case, the Eleventh Circuit (Wilson; Martin concurring; Tjoflat dissenting) found that the attorney retained by DeBruce’s family some three to four weeks before the capital trial began was ineffective as to the sentencing phase. The panel majority found, inter alia, that even if it “accept[ed] the state court's factual determination that trial counsel made a strategic decision not to investigate mitigation evidence based on the results of the pre-trial report governing DeBruce's competency to stand trial, that decision could not have been reasonable as it would have been based on a failure to understand the law. Because no lawyer could reasonably have made a strategic decision to forego the pursuit of mitigation evidence based on the results of the pre-trial report governing competency to stand trial, the Alabama Court of Criminal Appeals' conclusion to the contrary constitutes an unreasonable application of Strickland's performance prong.” (Citations omitted.)
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