Ninth Circuit: Craig Ross v. Ronald Davis

 Felony murder constitutional challenge to sentence was appropriately exhausted in state habeas, since despite the state habeas holding to the contrary, petitioner's filings on direct appeal discussed the relevant standard and sought relief.

State jury instructions on aiding and abetting didn't preclude the subsequent capital sentence, because although they didn't require the specific intent necessary under federal law, the separate finding of special circumstances established the necessary intent.

Petitioner had sufficient involvement in the crimes and evinced sufficient reckless disregard of the risk of death.

State court's determinations on ineffective assistance of counsel were not contrary to or an unreasonable application of the federal standard; defense counsel's limited investigation of mitigation evidence wasn't dispositive, as it related entirely to early childhood, and defense closing contained many mitigating inferences from the evidence; the latter are appropriately considered in a Strickland claim.

Craig Ross v. Ronald Davis

Eighth Circuit: Scott McLaughlin v. Anne Precythe

 

Although a simple Google search would likely have revealed the impeachment evidence against the defense expert witness in a capital case, not investigating the witness beyond a reasoble reliance on the judgment of the professional commnity was not ineffective assistance of counsel.

Petitioner wasn't prejudiced by lack of replacement psychologist's testimony, a witness who would have provided evidence on an aggravating factor on which the jury ended up not being able to reach a decision, since from a legal point of view the testimony would have been duplicative of the overwhelming evidence on this point; there was therefore not a substantial likelihood of a different result.

AEDPA deference to state habeas finding to the contrary offers an independent ground for overruling the district court ruling that petitioner was prejudiced by the lack of testimony.

Since the ineffective assistance claim wasn't substantial, petitioner can't raise it in federal habeas after defaulting in state habeas, since excuse of default requires a substantial claim.

While jury instructions can't require that a jury be unanimous on any one mitigating factor, they can require that the jury be unanimous in its decision that the mitigating factors outweigh the aggravating factors.

District Court erred in holding that the weighing of mitigating and aggravating circumstances was a finding of fact upon which the legislature had conditioned an increased punishment and that therefore must be performed by the jury, since the supreme court of the state has held in this case that the same precedent referenced by the district court was inapplicable.

CONCURRENCE:

Although the investigation of the expert witness was insufficient, there was no prejudice, given the other evidence offered.  

State supreme court has held that only the existence of a single mitigating factor need be found by the jury under the statutue, as it constitutes eligibility for the increased sentence.

http://media.ca8.uscourts.gov/opndir/21/08/183510P.pdf

Seventh Circuit: Jeffery Bridges v. USA

 

The statute is not a valid sentencing predicate, since it encompasses threats to property, and both the common law crime and the predicate option of extortion require threats against the person.

Since counsel had an obligation during plea negotiations to assess the potential sentence and communicate the potential sentence to the deft, impending challenges to sentencing practices, even if not generally being made at the time, can be sufficiently foreshadowed to require a hearing for a later Habeas petition for ineffective assistance.

Showing of prejudice not required, since the calculated sentence range serves as a lodestar for its subsequent modification.

Jeffery Bridges v.  USA

Ninth Circuit: Walden v. Shinn

 

As the state supreme court, in affirming a denial of severance on direct review, held in the alternative that the evidence of the crimes would be cross-admissible, and this ground wan't challenged on grounds of federal law during state post-conviction proceedings, the omission of the challenge from the federal Habeas petition to the District Court waived the claim.

State court determinations that post-identification police disclosures to witnesses at photo lineup that they had arrested the suspect was not contrary to clear federal law on the question.

State court reasonably declined to infer improper suggestion when photo lineup witness identified one candidate, and the police then momentarily turned off the recording device before the witness identified the defendant.

Since the state's highest court conducted an independent review of mitigation, a federal Habeas claim against the state trial court's holding of insufficient nexus needed to identify the constitutional error in the higher court's analysis.

District court properly denied amendment of federal Habeas ineffective assistance claims subsequent to independent exhaustion in state post-conviction review after federal Habeas had commenced, since the claims did not relate to the same transactions and occurrences; no plain error in the denial of equitable tolling.

State court's determination that admission of crime scene photos was not unduly prejudicial was not an unreasonable application of federal law, since contemporaneous circuit precedent held that there was no circumstance in which admission of irrelevant or prejudicial evidence could justify the writ.  Offered stipulation was not sufficient, since nothing in the Due Process Clause holds that the government can't introduce relevant evidence on an uncontested point. 

Walden v. Shinn

Seventh Circuit: Tyrus Coleman v. Ron Neal

 

As acquittals are to be read for the least that they establish, not the most, the retrial on an attempted murder charge after an acquittal from a murder charge as to the second victim does not offend Double Jeopardy; logically there might have been reasons for the jury's decision other than the theory offered by the defendant.

In considering an Ineffective Assistance claim, it is the full course of representation that matters; the lack of impeachment on a specific point in the second trial was insufficient to, on its own, justify reversal.

Tyrus Coleman v. Ron Neal

Fourth Circuit: US v. James Pressley

Deft's unmirandized statements were made in an apparent situation that, if taken as true, would have been considered sufficiently custodial.  Absent any evidence in the record of counsel's strategic considerations in not attempting to suppress the confession, an evidentiary hearing is warranted for the collateral challenge, especially since the deft was, as a matter of law, prejudiced by the admission.

US v. James Pressley

First Circuit: US v. Padilla-Galarza

Where deft counsel approves plan of insulating confession of codefendant from incriminating the deft, review is for plain error; in this case, no error plain or otherwise when incriminating conclusion could only be reached by inference.

District Court did not abuse its discretion in issuing a protective order prohibiting leaving cooperating witnesses' statements with the deft, as there was sufficient showing of good cause, the Jencks Act statutory right to the materials was adequately preserved, and deft's courtroom misbehavior justified the limitation on the 6A right to the materials.

Court adequately ensured sufficient Jencks Act access to agents' notes by questioning testifying agent as to scope of note-taking and accepting their answer.

Limiting instruction delivered standing-up after deft's courtroom outburst appropriately preserved the proceedings against mistrial.

Prosecutor's recital of plea condition that cooperating witness must tell the truth was not improper vouching, neither was the court's reference to "a cooperating witness of the United States of America."

No plain error in instruction on deft's testimony indicating an interest in the case, as it didn't belabor the fact; lack of limiting instruction against codeft's outburst wasn't plain error given other evidence of guilt.

Identification and withdrawal of claim of sentencing error during proceeding waives the claim in direct review.

No abuse of discretion in not considering mandatory minimums for other counts.

Court appropriately refused to consider elements of competency report as hearsay, as they lacked required indicia of credibility.

Plausible rationale makes 228 month bank robbery sentence not substantively unreasonable.

Deft claim that money could be cleaned from the damage done by anti-theft devices is speculative; FDIC coverage of stolen funds should not be considered in restitution order, as insurance is generally not considered.

No substantive sentencing error in 228 month sentence for bank robbery.

Ineffective Assistance claim insufficiently clear in the record for consideration on direct review.

US v. Padilla-Galarza

Eleventh Circuit: Denzil Earl McKathan v. USA

 

Former prisoner on federal supervised release might have reasonably believed that he was compelled by the terms of the supervised release to unlock his phone and answer the questions truthfully, so while the information can be used to revoke the supervised release, the 5A right to silence was invoked by operation of law, meaning that the information cannot be used in a subsequent prosecution.

Remand for consideration of inevitable discovery exception. 

Dissent:

Deft's invocation wasn't automatic, since his subjective belief wasn't reasonable in light of the prevailing law.

Denzil Earl McKathan v. USA

Eleventh Circuit: Leon Carmichael, Sr. v. USA

Petitioner suffered no prejudice from ineffective assistance of counsel in handling a 10 year plea deal as opposed to the 40 years eventually imposed, since there was no guarantee that the deft would accept, given his desire for a firm offer, and the terms of "super cooperation" were vague enough that the parameters of deft's obligations were unclear, and the expectations of the govt could not be defined before entering into the material cooperation and determining the capacity of the deft to assist.  

Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations  with counsel were after the fact.  General post-trial and totality claims similarly insufficiently supported.

Leon Carmichael, Sr. v. USA

Fifth Circuit: USA v. Herman Sanders, et al

Insufficient basis for Habeas on Ineffective Assistance, as the prejudice from the undiscovered evidence of trauma, illness, and coercion would not have caused a single reasonable juror to change their penalty phase vote, given past threats of violence, and incriminating letters offered at trial.

Dissent:  

Quoting state penalty phase closing:  “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” 

State waived AEDPA bar on new evidence in federal collateral challenge.

Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.

Substantial argument that deft killed only under threat of his own death.

USA v. Herman Sanders, et al

Eighth Circuit: Damon O'Neil v. United States

No ineffective assistance for not seeking Franks hearing given incorrect name provided by search warrant affiant, as there was sufficient evidence of drug activity at the residence, even absent the identities of the suspects provided by the affiant.

Magistrate's omission of check-bo indicating the reason for the affiant's reliability was not fatal to the warrant, as the general endorsement was signed.

No ineffective assistance on not challenging cell phone search, as it was two years in advance of Riley.

Police affidavit furnished during collateral challenge indicating that deft had been Mirandized prior to confession suffices against Strickland challenge, as there was no indication that trial counsel knew or should have known that the deft claimed that he hadn't been read his rights.

Damon O'Neil  v.  United States

Seventh Circuit: Adetokunbo Fayemi v. Kess Roberson

Easterbrook on Agatha Christie.

Court's proababilistic summary of the Strickland standard did not evince a logic contrary to the rule, so long as the final logic accords.  Given overwhelming evidence, not a misapplication of the law to say that assertion in opening statement that an ultimately non-testifying deft would testify wasn't sufficiently ineffective.

Adetokunbo Fayemi v. Kess Roberson

Third Circuit: Jeffrey Workman v. Superintendent Albion SCI

Where deft's trial counsel was preoccupied with vindication of a manifestly weak legal theory and the issue is not raised in state habeas -- the latter is ineffective assistance by its terms, and the former is a sufficient showing -- cause for waiver in subsequent federal collateral challenge is excused.

http://www2.ca3.uscourts.gov/opinarch/161969p.pdf

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

Seventh Circuit: Milton v. Boughton

Although the evidence from the uncounseled lineup was not properly admissible, petitioner was not prejudiced from the admission, given the other eyewitness identifications.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-30/C:17-1910:J:PerCuriam:aut:T:fnOp:N:2210678:S:0

Third Circuit: Seifullah Abdul-Salaam v. Secretary Pennsylvania Department of Corrections

As there was no indication that pursuing expert mitigation testimony in the penalty phase would cause conflicting narratives or a relitigation of the guilt phase, omitting to investigate the potential mitigation produced ineffective assistance of counsel; state appellate review to the contrary was unreasonable.

Where the state courts explicitly do not reach consideration of the prejudice arising from the ineffective assistance, federal habeas approaches the question de novo.

District court erred in determining that the mitigation would have been cumulative in light of the guilt-phase evidence; as the potential mitigation was qualitatively different, it is likely that at least one juror would have been swayed by a fundamentally different presentation in the penalty phase.

http://www2.ca3.uscourts.gov/opinarch/149001p.pdf

Ninth Circuit: White v. Ryan

State habeas denial was contrary to and an unreasonable application of the federal law governing ineffective assistance of counsel claims as to mitigation and aggravating factors, since it considered whether the specific court that had heard the case would have been prejudiced, rather than a neutral and objective court considered abstractly, and also did not weigh the cumulative effect of the mitigation that had been omitted.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf

Ninth Circuit: Tamplin v. Muniz

Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel.  State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial.  Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.

Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas.  Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf

Seventh Circuit: Ricardo Sanchez v. Jefferson B. Sessions III

Board's statement of a legal standard of probability suffices to establish a violation of the Fifth Amendment when considering the right to counsel in deportation proceedings where the correct standard is that of reasonable possibility of a different outcome.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Tenth Circuit: Pavatt v. Royal

Amended panel opinion after denial of en banc.

No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.

Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.

Dissent:

Ineffective assistance claims generally procedurally barred, as state provided time to raise them 

A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.

https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf