OHIO’S FIRST EXECUTION UNDER NEW ONE-DRUG LETHAL INJECTION PROTOCOL

The Sixth Circuit Court of Appeals denied Kenneth Biros’s request for stay of execution. Richard Cooey,II, Kenneth Biros (Intervenor) v. Ted Strickland, et al., Case No. 09-4474. Biros, one of the litigants in the challenge to Ohio’s previous three-drug protocol, challenged the States implementation of the new one-drug protocol and the back-up intramuscular procedure. The Circuit Court, after a thorough review of the record, affirmed the district court’s order and held that Biros had not met his burden of demonstrating a strong likelihood of success on the merits on his Eighth Amendment claim under any standard set forth in Baze v. Rees, 553 U.S. 35 (2008), because he failed to show that the new protocol, facially or as applied to him, demonstrates a risk of severe pain that is substantial when compared to known and available alternatives. The Court countered that while the new protocol is not perfect, it conforms with the Constitution’s prohibition on cruel and unusual punishment, and is a decided improvement on Ohio’s previous protocol. Moreover, the Court stated that the new protocol is the precise procedure Biros’s fellow litigants in Cooey demanded Ohio implement.

Biros was executed at 11:00 a.m. today. He is the first person to be executed under the one-drug protocol.

Ohio Executions To Resume

Today, the Sixth Circuit Court of Appeals lifted the stay issued by the district court on October 19, 2009, in Richard Cooey,II, Kenneth Biros v. Ted Strickland, et al., Case No. 09-4300, reinstating Biros's December 8, 2009, execution date. The Circuit Court found that Ohio’s change to a one-drug protocol, effective November 30, 2009, mooted his challenge to Ohio’s previous three-drug execution protocol. The Court went on to say that the key changes to the protocol grew out of, and in direct response to, the underlying litigation which Biros took part in.

Ohio Parole Board Recommends Clemency for Jason Getsy

Today, the Ohio Parole Board released its 5-2 decision in favor of clemency for Jason Getsy, who is scheduled for execution on August 18, 2009. During the clemency hearing held earlier this month, Getsy's family members and his pastor sought mercy for him and asked that his sentence be commuted to life.

Getsy has been on death row since his conviction in 1995 for the aggravated murder of Ann Serafino and the attempted murder of her son. A link to the Ohio Parole Board's Clemency Report is available here.

Sixth Circuit Upholds Denial of Expert Funding for Clemency

John Fautenberry is scheduled for execution by the State of Ohio on July 14, 2009. Today in Fautenberry v. Bagley, the Sixth Circuit affirmed the district court’s order denying expert funding under 18 U.S.C. § 3599(f) for a neuropsychologist to provide assistance with clemency.

Fautenberry filed a motion with the district court requesting funds to hire a neuropsychologist to assist in the preparation of his clemency petition. In support of this motion, Fautenberry submitted various exhibits to illustrate the head injuries he suffered as a child. Specifically, Fautenberry submitted an affidavit and a fifteen (15) page report of the neuropsychologist who evaluated Fautenberry in 1996 as well as the neuropsychologist’s resume.

The district court considered Fautenberry’s request in light of §3599(f) and concluded, based on his motion and supporting exhibits, that the service requested was not “reasonably necessary” because Fautenberry had provided no reasons to explain why it would be necessary.

On appeal Fautenberry argued that the district court improperly relied on the 1996 examination and stated that the reliance was erroneous because the 1996 evaluation was incomplete, outdated and unreliable.

However, the Sixth Circuit did not agree and found that Fautenberry had failed to provide evidence showing that the 1996 evaluation was incomplete, outdated and unreliable; failed to present evidence to show that the requested evaluation would not be duplicative of information already available to the Ohio Adult Parole Authority and/or the Governor of the State of Ohio; and, failed to state that he was requesting an updated evaluation. For these reasons the Circuit Court concluded that the district court had not abused its discretion in denying Fautenberry’s request for fees pursuant to §3599(f).

Judge Moore concurred in the judgment but noted that “[e]ven without evidence of specific changes, which in any event, could be discovered only through a current evaluation, it is obvious that Fautenberry’s mental state would have changed in the past thirteen years he has spent on death row.” However Judge Moore went on to state that this argument was not presented to the district court and, accordingly, the district court did not abuse its discretion.

Also in Fautenberry’s appeal to the Sixth Circuit was a request for a stay of execution to permit him to obtain the neuropsychological examination and present the results to the Governor. The request for stay was denied as moot.

SCOTUS Refuses to Recognize Access to DNA Testing as a Due Process Right

In today's decision in District Attorney's Office for the Third Judicial District v. Osborne, the Supreme Court, by a 5-4 margin, rejected a criminal defendant's claim that he had a constitutional right to access evidence for DNA testing to prove his innocence. The majority opinion, written by Chief Justice Roberts, did not resolve whether Osborne had persued the proper procedural remedy by filing suit under Section 1983 rather than following the state postconviction/habeas route. Rather, the Court's opinion jumped to the merits.

Chief Justice Roberts noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

Two of the Justices who joined the majority, Justice Alito and Justice Kennedy, said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court.

They also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction. Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.

SCOTUS Reverses the Circuit in Bies v. Bobby

SCOTUS today reversed the Sixth Circuit in Bies v. Bobby, 08-598. Writing for a unanimous Court, Justice Ginsberg found that the Double Jeopardy Clause did not bar the Ohio courts from conducting a full hearing on Bies'mental retardation claim. The Court found that since Bies was attempting to vacate his death sentence, and the State was not seeking to retry him or to increase his punishment, the case did not fall into the perameters of the Double Jeopardy Clause. The Court went on to hold that the doctrine of issue preclusion, barring relitigation of issues actually determined and necessary to the ultimate outcome of a prior proceeding, did not apply. It was not clear to the Court that the issue of Bies’ mental retardation was actually determined under the Lott test at trial or on direct appeal. Further, the Court found that the state courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence. Curiously, Justice Ginsberg asserted the idea that mental retardation as a mitigator and mental retardation under Atkins and Lott are discrete legal issues. What is odd about this statement is that mental retardation is a medical definition, and the idea that the definition changes with the context would likely surprise the APA.

Oral Argument Transcript in Bobby v. Bies

The oral argument transcript in Bobby v. Bies, 08-598, is available here. The case was argued this morning. A tough day for the good guys.

Sixth Circuit Grants a Stay of Execution for Hartman

A panel of the Sixth Circuit today granted a stay of execution for Brett Hartman to permit them time to review his motion to file a successive habeas petition. Hartman was scheduled for execution on April 7, 2009. He alleged that previously undiscoverable evidence showed that a fellow inmate who testified that Hartman had admitted to the crime had perjured himself. Especially compelling for the panel was Hartman's claim that he should have access to crime scene evidence for DNA testing. The panel reasoned that the imminent decision of SCOTUS in District Attorney's Office for the Third Judicial District v. Osborne could create a new constitutional right entitling Hartman to access to the evidence. The court granted Hartman's stay, and will rule on his motion to file a second petition following the Osborne decision.

Awkal Gets a New Trial

The majority of the Sixth Circuit panel (Moore, Cole, Gilman dissenting) in Awkal v. Mitchell, 01-4278, reversed the district court's denial of habeas relief and granted a new trial on the basis of ineffective assistance of counsel at the guilt phase. Awkal presented claims for relief on IAC during the guilt phase, IAC during sentencing, and prosecutorial misconduct. The panel did not decide the other two claims, but focused only on the question of whether counsel was ineffective for calling an expert witness who testified unequivocally that Awkal was sane at the time of the murder, when Awkal's entire defense was that he was not guilty by reason of insanity.

Counsel presented testimony of three experts: one whose testimony was stricken because he was not licensed in Ohio (and he had received his degree by mail); another who was a pediatrician who had practiced psychiatry for less than one year and was not yet certified; and the third, Dr. Rizk, who had conducted Awkal's pretrial sanity and competency evaluations for the court. The majority noted that counsel was in possession of Dr' Rizk's report well before he testified and should have known that it would be damaging. The majority analogized the case to Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), in which the court found ineffective assistance of counsel where counsel presented expert testimony that eviscerated the petitioner's intoxication defense. It found that Rizk's testimony so devastated Awkal's defense that it was objectively unreasonable for his counsel to call him as a witness. Regarding the prejudice prong, the majority held that the damage done by this witness was so obvious and extensive that had counsel not called him, there was a reasonable probability that the jury's verdict would have been different. In its AEDPA analysis, it further found that the Ohio Supreme Court's application of Strickland was objectively unreasonable in that the court failed to take into account the obvious harm caused by counsel's decision.

Judge Gilman, in dissent found that while counsel's decision was questionable, it was not outside the wide range of professionally competent assistance. It was clear that counsel had made a conscious decision to present this damaging testimony and so it must have been part of the "strategy." As to the prejudice prong, Judge Gilman found that the evidence against Awkal being psychotic at the time of the murders was so overwhelming, that he had no chance at an insanity defense even without Dr. Rizk's testimony

Cornwell v. Bradshaw

Today, in Cornwell v. Bradshaw, a majority of the Sixth Circuit panel (Gibbons, Rogers, Moore dissenting) affirmed the district court's denial of habeas relief. Cornwell alleged that counsel was ineffective for failing to discover and turn over to the mitigation expert hospital records that would have shown that he had a double mastectomy at age thirteen and possibly manifested symptoms of Klinefelter's (XXY chromosome) Syndrome. The anecdotal evidence that the psychologist had at trial made it sound like Cornwell had had "liposuction" or some other form of cosmetic surgery. Klinefelter's Syndrome is a genetic disease, the symptoms of which include enlarged breasts, sparse body hair, an inability to produce sperm, and difficulty with language skills. Boys who have this disease have less muscular development and are not good at sports, tend to be teased by their peers and present low self esteem. Had the evidence pointed the expert in the direction of Klinefelter's Syndrome, Cornwell argued, the mitigation would have been much more compelling, rather than portraying him as a fat, lazy teen who had undergone cosmetic breast reduction surgery.

The majority reasoned that while the ABA standards would seem to require an attorney to locate this type of record, it still seemed like trial counsel had done a pretty good job with the rest of the investigation. However, in order to get to the real meat the court decided to assume deficient performance and look at the Strickland prejudice prong. The majority held that while the jury would have had a little more information about Cornwell's medical condition and perhaps would have learned that he was overweight because of the Klinefelter's, it was still not objectively unreasonable for the state court to have found tha Cornwell was not prejudiced. The state courts could reasonably reject the idea that a jury would blame a teen for his own obesity and tend to consider someone who was fat, lazy and had cosmetic surgery more deserving of the death penalty.

In addition, the majority rejected Cornwell's remaining claims of racial bias; the trial court's denial of his motion to suppress on eyewitness identification; and ineffective assistance of appellate counsel for failure to raise that issue.

Judge Moore dissented regarding the IAC mitigation claim. Her reasoning was, essentially, that since the prosecutor consistently presented Cornwell as a fat lazy youth who, instead of running, dieting, and lifting weights had liposuction, it would have been helpful for the defense to counter that assessment with a diagnosis.

Van Hook - That's Not Really What We Meant

Today, the Circuit panel issued a modification of its opinion in Van Hook v. Anderson, 03-4207. Originally, the court found that Van Hook's counsel was ineffective for three reasons: 1) failure to fully investigate and present mitigating evidence; 2) failure to obtain a mental health expert to testify that Van Hooks actions were the result of mental illness; and 3) introducing and then failing to object to a PSI containing victim impact statements asking that he be sentenced to death. The panel (Merritt, Martin, Moore) amended its opinion "at the request of the majority of the en banc court and in order to avoid the need for an en banc hearing." The sole basis for the IAC finding in the new opinion was counsel's failure to investigate and present relevant evidence at mitigation.

SCOTUS Orders

SCOTUS set Bobby v. Bies (see below) for oral argument on April 27, 2009. In another effort to throw the world into turmoil, the Court granted cert in Smith v. Spisak, 08-724. The case involves the application of Mills v. Maryland to Ohio's "acquittal first" instruction, as well as the boundaries of ineffective assistance of counsel. Spisak is represented by Mike Benza, and Alan Rossman of the Northern District CHU. The Circuit opinions can be found here and here

Sixth Circuit Denies Stay, COA to Steve Henley

The Sixth Circuit issued two unpublished orders yesterday denying petitioner Steve Henley a COA on his Rule 60 motion (09-5085) and a stay of execution based on a lethal injection challenge (09-5084). In Henley v. Bell, Henley argued that a COA is unnecessary to appeal the denial of a Rule 60 motion. The court disagreed, holding that pursuant to United States v. Hardin, 481 F.3d 924 (6th Cir. 2007), a COA is required to appeal the denial of a Rule 60 motion in a habeas proceeding, and that Henley did not meet the standard for a COA. In Henley v. Little, the petitioner asked for a stay of execution pending the Circuit's disposition of Harbison v. Little (No. 07-6225, argued January 20, 2009), a Section 1983 challenge to Tennessee's LI protocol. The court declined the stay, holding that by any calculations Henley had missed the statute of limitations deadline by a significant amount. Henley was executed early this morning in Tennessee. Click here for the press report.

Factual Development Ordered on Habeas Lethal Injection Claim

Today the Sixth Circuit issued an order remanding a case to the district court for factual development and limited discovery on the petitoner's lethal injection claim, which was certified for appeal by the Circuit on July 23, 2008. This is going to be an important case as it is the first to be granted discovery to explore the lethal injection issue in the habeas context. The case is Jones v. Bradshaw, 07-3776. Mr. Jones is represented by the Northern District CHU and Spiros Cocoves. Stay tuned for developments in this important litigation.

Victim's Family Urges Clemency for Jeffrey Hill

Yesterday, a victim's surviving family submitted testimony before the parole board in favor of clemency for Jeffrey Hill. Hill was convicted in 1992 on charges of aggravated murder, aggravated robbery, aggravated burglary and aggravated theft for killing his mother in a cocaine-induced frenzy. The board will announce its recommendation on February 6. Hill's execution is scheduled for March 3, 2009. Click here to view press coverage.

Circuit Upholds the Grant of Writ on Brady Claim

Today in Harris v. Lafler, 05-2104/2159, a non-capital habeas case, the Sixth Circuit panel (Rogers, Sutton, McKeague) affirmed the district court's grant of the writ on petitioner's Brady violation claim. Harris was convicted of second degree murder, among other charges, for shooting a fellow he had had a bar fight with from a moving vehicle on I-96. The Brady claim involved information that came to light after the trial showing that police had made several promises of leniency to the only witness linking Harris to the shooting.

Procedurally, Harris's petition contained three unexhausted claims out of thirteen. In ruling on the petition, the district court went straight to the merits and didn't address the state's argument that the court couldn't hear any of the claims until they were all exhausted. Ordinarily this would result in the Circuit vacating and remanding to do one of four things: 1) dismiss the entire petition; 2) stay and abey to permit the petitioner to present the unexhausted claims in state court; 3) permit the petitioner to dismiss the unexhausted claims and proceed; or 4) ignore the exhaustion requirement and deny the petition on the merits. In this case however, Harris had agreed in his brief to dismiss the unexhausted claims and the state had not insisted on a remand. The court reasoned that since the exhaustion requirement does not define subject matter jurisdiction it may be waived by the state. The court further reasoned that a speedy resolution to Harris's claims was in the best interest of both parties. Noting that the witness's testimony was the only piece of evidence against Harris, the court acknowledged that the state's promises to the witness gave him every incentive to lie in his testimony, and the suppression of the Brady material thus undermined confidence in the verdict.

SCOTUS Grants Cert in Bies

Today, SCOTUS granted cert from the Sixth Circuit's decision in Bies v. Bobby, 06-3471. The main question presented by the government was whether double jeopardy applies to a state post conviction hearing on the defendant's mental retardation where the defendant has already been found mentally retarded in state court. Michael Bies had presented evidence of his mental retardation in mitigation, argued it on appeal, and was found to be mentally retarded in the court of appeals. When the Supreme Court's Atkins decision was announced, he filed a successor postconviction action claiming he was ineligible for execution and that the state was estopped from contesting his claim in so much as it had already conceded that he was mentally retarded in the earlier proceedings. Information on the Supreme Court litigation is available here.

SCOTUS Opinion on Statute of Limitations Under AEDPA.

In Jimenez v. Quarterman, 07-6984, the Supreme Court of the United States interpreted the AEDPA statute of limitations provision under 28 U.S.C. 2244(d)(1) which provides that the one year limitation period runs "from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Jimenez's conviction became final on October 11, 1996, but a state appellate court determined on post conviction that he had been denied his right to appeal, so he was granted the right to file an out of time appeal. The appeal was denied and his time for seeking cert expired on January 6, 2004. Jimenez filed a second state post conviction application on December 6, 2004, which was denied on June 29, 2005. His federal habeas petition was filed on July 19, 2005. The district court dismissed his petition as time barred. Jimenez argued that the time for filing his petition did not begin to run until the expiration of the time for seeking cert on his delayed appeal - January 6, 2004.

The Court unanimously agreed. Justice Thomas wrote the opinion, holding that once a state court grants a defendant the right to a delayed appeal during state collateral review but before federal habeas, the original conviction is no longer final and the state court has essentially restored the pendency of the direct appeal. Therefore, Jimenez's conviction did not become final for purposes of 2244(d)(1) until January 6, 2004, when time for seeking cert on the appeal had expired. Based on the plain language of the statute, direct review cannot conclude until the availability of direct appeal to the state court is exhausted. Until that time there is no presumption of finality and legality tied to the conviction and sentence. While the state argued its reading of the statute was in keeping with Congress's desire as expressed in AEDPA to advance the finality of convictions and put review on a tight timeline, the Court's final word was that the statute means what it says.

Oral Argument Transcript in Harbison v. Bell

SCOTUS heard oral argument yesterday in the case of Harbison v. Bell, 07-8521. This case, on cert from the Sixth Circuit, presented the question of whether federally appointed attorneys may represent a client in subsequent clemency proceedings in state court. Needless to say, this case will have great impact on our work.

Sixth Circuit Refuses to Permit Petitioner to Proceed on a Successor Habeas Petition Under 28 U.S.C. 2244

The Sixth Circuit issued an order today denying Kevin Keith's motion to file a second habeas petition. In Keith v. Bobby, 08-3908, a divided panel took very different views of the evidence that had been presented at trial and whether new evidence discovered by Keith met the standard for permitting a successor petition.

Keith, an alleged drug dealer, was convicted in 1994 for killing two women and a child in retaliation against a suspected informant Keith believed was responsible for a raid. Keith based his motion on Brady material that was discovered subsequent to the affirmance of the denial of his first petition. In ruling on his motion, the majority (Boggs, Gibbons) found that the new evidence was insufficient to make it past AEDPA's presumption against repeat federal litigation of state court convictions. Specifically, there were two new pieces of evidence upon which Keith based his motion. First, a pharmacy board investigation had revealed that another individual had threatened to "cripple" the same informant for his participation in the raid. The second piece of information undermines testimony elicited at trial. A police detective testified that a hospital nurse had alerted the police that a fourth surviving shooting victim had identified Keith as his assailant shortly after regaining consciousness at the hospital. However, the detective was mistaken about the nurse's name in his testimony and the defense was never able to find her. When they did discover her name and track her down, she denied ever hearing the victim identify Keith as the shooter. While the victim subsequently identified Keith, the defense had argued that his identification was unduly influenced by the police.

The majority found that this new evidence did not even meet the "lenient" prima facie standard for a successor petition. According to the majority, the new evidence did not contradict any of the evidence used to directly prove Keith's guilt. The court stated that is was a "stretch" to say that the fact that another person had a motive, and that an eyewitness identification occurred after police contact and not independent of it, would constitute clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict in light of all the other evidence against Keith. Besides the identification, that evidence included: a partial imprint of the license number of the getaway car after it crashed in a snow bank; eyewitness identification of Keith as the man driving the getaway car; a spent cartridge casing matching the ones from the scene that was found where Keith picked up his girlfriend.

The dissent (Clay) looked at the evidence quite differently. According to Judge Clay, the eyewitness identifications were not strong, and the Brady material would have significantly weakened the state's case. The evidence from the pharmacy board investigation included several additional statements by Melton that would have implicated him in the murders, as well as Melton's habit of wearing a mask like the one described by the witnesses to the murder. In light of the evidence as a whole, this would have bolstered evidence that a car registered to Melton had a license number with the same three digits that were obtained from the imprint in the snow bank, and his vehicle matched a witness's description of the getaway car, as well as other testimony that implicated Melton. The new evidence regarding the shooting victim's hospital identification would have removed the corroboration of otherwise weak testimony. The defense presented evidence that this witness had told several people, including a police officer, that he did not know who shot him and that the shooter was wearing a mask. The dissent reiterated the fact that the court was not being asked to rule on the merits of the petition, but rather whether Keith had presented sufficient allegations with some documentation to warrant further consideration by the district court. Looking at the new evidence in light of all the evidence presented at trial and the weaknesses in the state's case showed that Keith could convince a reasonable fact finder that he was not guilty of the murders.