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On June 6, 2016, the Supreme Court granted the certiorari petition of Texas death row inmate Bobby Moore, limited to the first question in the petition: (1) Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

On March 23, 2016, a panel of the Ninth Circuit Court of Appeals issued an opinion vacating the lower court's ruling that barred implementation of Department of Justice's regulations governing certification procedures for States seeking the benefits of Chapter 154 of Title 28 of the United States Code. The panel held that the plaintiffs lacked standing and that the challenge to the regulations was not ripe as no certification had occurred.

The Ninth Circuit (Graber, with Rawlinson; Watford concurring) has reversed District Court Judge Cormac Carney’s ruling that California’s current post-conviction review process in death penalty cases violates the Eighth Amendment. Jones v. Davis (9th Cir. Nov. 12, 2015). Specifically, Judge Carney found that the post-conviction review process had become so inordinately and unnecessarily delayed that only an arbitrarily selected few of the many sentenced to death would actually be executed.

United States District Court Judge Mahan of the District of Nevada granted Michael Hogan’s request for an evidentiary hearing on a claim of IAC for failing to investigate and challenge an Iowa prior conviction that was used as an aggravating circumstance in Hogan’s Nevada capital trial. Hogan v. Baker, 2015 WL 5692101 (D. Nev. Sept. 28, 2015).

The Ninth Circuit Court of Appeals will hear argument on December 10, 2015, in DOJ’s appeal of the ruling by United States District Judge Wilken of the Northern District of California that struck down the Chapter 154 regulations promulgated by DOJ. Habeas Corpus Resource Center, et al. v. United States Department of Justice, et al., 14-16928. Judge Wilken’s orders in the case, as well as pleadings from the appeal and consolidated appeals, can be found on the secure portion of this website.

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.)

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 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.