A motion for leave to file a successive federal habeas application in a death penalty case is granted

In re Mathis, No. 06-20806
A motion for leave to file a successive federal habeas application in a death penalty case is granted where movant made a prima facie showing of mental retardation for purposes of his Atkins claim.

writ of habeas corpus is granted where:

Fleming v. Evans, No. 06-6110

Sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the Antiterrorism and Effective Death Penalty Act (AEDPA) limitations period. In a domestic abuse, assault, and battery case, an application for a certificate of appealability (COA) from a denial of a petition for a writ of habeas corpus is granted where: 1) there was jurisdiction to review the petition; 2) reasonable jurists would find it debatable whether the district court abused its discretion with respect to equitable tolling and timeliness rulings; and 3) reasonable jurists could debate whether the petition stated a valid constitutional claim of the denial of a constitutional right.

district court erred in finding that the petition was untimely

Pierson v. Dormire, No. 06-2545

Denial of a petition for a writ of habeas corpus, which challenged a conviction for robbery and armed criminal action, is reversed where the district court erred in finding that the petition was untimely. Under Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999), a Missouri state prisoner's judgment becomes final within the meaning of 28 U.S.C. section 2244(d)(1)(A) exactly ninety days after his conviction is affirmed on direct appeal, even if he has not filed a motion for transfer to the Missouri Supreme Court.

Bad Cases Make Good Law

Smith v. Texas, No. 05-11287

In a first-degree murder and death penalty case in which sentencing took place in between the two Penry decisions of the Supreme Court, denial of relief on collateral review is reversed where a state court's errors of federal law regarding preservation of a Penry claim could not be the predicate for requiring him to show egregious harm, and petitioner appeared to be entitled to relief under the applicable state harmless-error framework. Read more...

claim of mental retardation is granted

Ochoa v. Sirmons, No. 06-6349
In a death penalty case, a motion to file second or successive petition for writ of habeas corpus setting forth an Atkins claim of mental retardation is granted where, although the pendency of an appeal from the denial of a first petition does not obviate the need for authorization of newly raised claims, petitioner made the prima facie showing required for authorization to proceed under section 2244(b)(2)(A).

Winning habeas

Owens v. US, No. 05-1784
Denial of a petition for habeas corpus is reversed in part and remanded for further proceedings where the district court's decision to deny evidentiary hearings was an abuse of discretion since: 1) defendant's allegations of ineffective assistance of counsel were not implausible; 2) closure of jury selection to the public for an entire day without meeting the strict Waller requirements would violate a defendant's right to a public trial; 3) failure to object to such a closure might constitute ineffective assistance of counsel; and 4) denial of a public trial is structural error and prejudice must be assumed. The denial of habeas relief is affirmed on all other points.

Brady violation

Trammell v. McKune, No. 06-3316

In a criminal case in which habeas petitioner was accused of stealing a service station tow truck and using it to steal another vehicle, his petition for habeas corpus is granted and his convictions vacated where the prosecution's failure to disclose physical evidence linking another individual to the tow truck theft, when it knew petitioner's defense was that the other man committed the theft, constituted a violation of petitioner's due process rights under Brady

testimony of an informant represented the only evidence against petitioner

Barajas v. Wise, No. 06-15494 (9th Cir. March 23, 2007)
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf

Denial of petition for writ of habeas corpus is reversed

Miller v. Vannatta, No. 05-3978 (7th Cir. March 15, 2007)
Denial of petition for writ of habeas corpus is reversed and remanded with instructions to grant the petition where the Indiana Court of Appeals unreasonably applied federal law in concluding that defense counsel's decision to stand mute at defendant's sentencing hearing did not amount to ineffective assistance of counsel.
http://caselaw.lp.findlaw.com/data2/circs/7th/053978p.pdf

death penalty case moved pro se to waive further federal proceedings

Comer v. Schriro, No. 98-99003 (9th Cir. March 15, 2007)
In proceedings arising when habeas petitioner in a death penalty case moved pro se to waive further federal proceedings, to terminate representation by his habeas counsel, and for dismissal of his appeal, the motions are granted and the appeal is dismissed where petitioner was competent and had voluntarily decided to waive further proceedings.
http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf

The COA inquiry asks only if the District Court’s decision was debatable.

SUPREME COURT OF THE UNITED STATES

No. 01—7662
THOMAS JOE MILLER-EL, PETITIONER v. JANIE
COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT

[February 25, 2003]

Justice Kennedy delivered the opinion of the Court.

In this case we once again examine when a state prisoner can appeal the denial or dismissal of his petition for writ of habeas corpus. In 1986 two Dallas County assistant district attorneys used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury which tried petitioner Thomas Joe Miller-El. During the ensuing 17 years, petitioner has been unsuccessful in establishing, in either state or federal court, that his conviction and death sentence must be vacated because the jury selection procedures violated the Equal Protection Clause and our holding in Batson v. Kentucky, 476 U.S. 79 (1986). The claim now arises in a federal petition for writ of habeas corpus. The procedures and standards applicable in the case are controlled by the habeas corpus statute codified at Title 28, chapter 153 of the United States Code, most recently amended in a substantial manner by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In the interest of finality AEDPA constrains a federal court’s power to disturb state-court convictions.


To secure habeas relief, petitioner must demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was “objectively unreasonable” in light of the record before the court. The State represents to us that petitioner will not be able to satisfy his burden. That may or may not be the case. It is not, however, the question before us. The COA inquiry asks only if the District Court’s decision was debatable. Our threshold examination convinces us that it was.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, HEALTH LAW

Whitington v. Ortiz, No. 06-1362 (10th Cir. January 03, 2007)
Dismissal without prejudice of pro se prisoner's section 1983 action involving officials' denying him access to free hygiene products, for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), is reversed and remanded where plaintiff properly exhausted the detention facility's grievance process before seeking judicial review. [To view the full-text of cases you must sign in to FindLaw.com.] http://laws.lp.findlaw.com/10th/061362.html

habeas corpus tolling

Howard v. Ukibarri, 457 F.3d 1146 (10th Cir. 2006)(Held that the statute of limitations to file motion for writ of habeas corpus was tolled during pendency of motion for modification of sentence).

KKK White Knights Leader

Harrington v. Gillis, 456 F.3d 119 (3rd Cir. 2006)(2254)(Flores-Ortega claim).
US v. Hull, 456 F.3d 133 (3rd Cir. 2006)(First impression; mere possession of a pipe bomb not a federal crime of violence. KKK White Knights Leader set up by informant).
US v. Wall, 456 F.3d 316 (3rd Cir. 2006)("Out of time" petition for rehearing restart the clock
for 1-year habeas filing).
US v. Charlesworth, 456 F.3d 347 (3rd Cir. 2006)(alien was denied opportuinty for judicial review of reinstating deportation order; 2. failure to inform alien

defendant's amended motion was insufficient because it was not submitted under oath or accompanied by an affidavit.

US v. Kafo, No. 05-3034 (7th Cir. November 03, 2006)

Denial of a motion brought pursuant to 28 U.S.C. section 2255 is vacated and remanded where defendant's amended motion was insufficient because it was not submitted under oath or accompanied by an affidavit. http://caselaw.lp.findlaw.com/data2/circs/7th/053034p.pdf

counsels’ inadequate representation due to a conflict of interest and a failure to raise that claim on appeal

Hammon v. Ward, No. 05-6158 (10th Cir. October 26, 2006)

Denial of a habeas petition challenging convictions for possession of a controlled dangerous substance, and firearms-related offenses is vacated and remanded for an evidentiary hearing where petitioner made sufficient allegations to merit the opportunity to present evidence in support of his habeas claim concerning his counsels’ inadequate representation due to a conflict of interest and a failure to raise that claim on appeal. http://laws.lp.findlaw.com/10th/056158.html

swiped from volkala conspiracy

[Jonathan Adler, October 26, 2006 at 8:06pm] 0 Trackbacks / Possibly More Trackbacks
Sixth Circuit Habeas Happenings:
There was lots of activity and acrimony relating to habeas corpus petitions on the U.S. Court of Appeals for the Sixth Circuit last week. On Thursday, the Court rejected a petition for rehearing en banc in Keith v. Mitchell over the dissent of four judges. The original three-judge panel split 2-1, with Chief Judge Boggs writing the majority for himself and Judge Gibbons and Judge Clay dissenting. Judge Clay dissented again from the denial of en banc review, joined by Judges Moore, Martin, and Cole. His dissent argued that Kevin Keith received constitutionally inadequate assistance of counsel during the mitigation phase of his trial.
Judge Martin wrote separately “to express again [his] dismay and frustration with the shortcomings of our approach to reviewing death sentences through habeas corpus appeals,” and to suggest that legal representation in capital cases is potentially unconstitutional. Martin continued:
members of this Court have gone on record to second-guess the jurisprudence of the Supreme Court, and this Court, that requires counsel to conduct an adequate investigation of potential mitigating circumstances for purposes of capital sentencing, and mandates the reversal of convictions where this does not occur. [Here Martin cites the opinions by Chief Judge Boggs and Judge Suhrheinrich in Poindexter v. Mitchell, which I covered here.] This reasoning strikes me as demonstrating callousness and possible animosity toward the Sixth Amendment right to counsel.Martin further intimated that this “animosity” likely influenced the outcome in this case.
On the same day, in Apanovitch v. Houk, the Sixth Circuit reversed and remanded the district court’s denial of Anthony Apanovitch’s habeas petition “[i]n light of the state’s apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition” and the availability of evidence that had not undergone DNA testing. The panel’s unanimous opinion was written by Chief Judge Boggs, joined by judges Daughtrey and Moore.
On Friday, a little bit of disagreement resurfaced on the Sixth, but not along the usual ideological lines. In Spisak v. Mitchell, the Sixth Circuit granted a death row inmate's habeas petition on the grounds that he received ineffective assistance of counsel during the mitigation phase and the judge gave improper jury instructions. If nothing else, "the decision is worth a read to see just how ineffective a capital attorney can be," observes Robert Loblaw on the Decision of the Day blog.
The majority opinion in Spisak, written by Judge Clay, rejected the inmate's other claims. Judge Moore wrote an opinion dissenting in part, as she would have granted the petition on additional grounds, specifically "the trial court’s exclusion of expert testimony and evidence regarding Spisak’s insanity defense and the trial court’s refusal to submit the insanity defense to the jury."
Given that the panel of Judges Clay, Daughtrey and Moore was, in Loblaw's words, "every habeas petitioner’s dream," and not representative of the current composition of the Sixth Circuit on habeas issues these days, it will be interesting to see whether the state seeks en banc review.
[Links via Decision of the Day.]

contrary to the ineffective assistance of counsel standard

Goodman v. Bertrand, No. 04-3946 (7th Cir. October 31, 2006)
Denial of petition for writ of habeas corpus is reversed where the state court decision in defendant's appeal was contrary to the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and an unreasonable application of the standard because the cumulative effect of the defense counsel's errors constituted ineffective assistance of counsel.
http://caselaw.lp.findlaw.com/data2/circs/7th/043946p.pdf

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district court exceeded the permissible bounds

Yung v. Walker, No. 03-2023 (2d Cir. October 31, 2006)
Grant of conditional writ of habeas corpus and denial of respondents' request for an evidentiary hearing is vacated where the district court exceeded the permissible bounds of its discretion in granting the petition without affording the state courts an opportunity to make additional findings and to conduct an evidentiary hearing to permit the parties to present additional evidence concerning the justification for the closure.
http://caselaw.lp.findlaw.com/data2/circs/2nd/032023p.pdf

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introduction of the confession violated his rights under the Confrontation Clause, and the error was not harmless

Stevens v. Ortiz (10/19/06 - No. 05-1250)
Denial of a habeas petition in a first-degree murder case is reversed where a conclusion -- that the admission of a non-testifying accomplice's confession, which also inculpated petitioner in a murder-for-hire, did not violate petitioner's rights under the Confrontation Clause -- was contrary to clearly established federal law, the introduction of the confession violated his rights under the Confrontation Clause, and the error was not harmless. http://laws.lp.findlaw.com/10th/051250.html