Denial of en banc without comment.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1737.Order.8-31-2018.1.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Tenth Circuit: Grissom v. Carpenter
Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.
Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.
State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.
https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf
Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation. As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction. Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation. State habeas denial was therefore not unreasonable.
State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.
https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf
Ninth Circuit: Lucero v. Holland
Apparently incriminating gang writings insufficiently testimonial to trigger Confrontation Clause protections when introduced against a nontestifying codefendant.
Expert testimony that gang member was to have access to a weapon at all times and proximity to assault with a puncturing weapon insufficient to establish possession of a weapon.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf
Expert testimony that gang member was to have access to a weapon at all times and proximity to assault with a puncturing weapon insufficient to establish possession of a weapon.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf
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