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Turner v. Bagley,
No. 03-3130 (6th Cir., March 21, 2005) (Recommended for Publication): Winner!!! Circuit reverses the District Court and grants the habeas petition unconditionally on ineffective assistance of appellate counsel grounds based upon inordinate delay in prosecuting the direct appeal (lawyer no. 5 eventually filed it ten(!) years after conviction). District Court dismissed for non-exhaustion in state court; and then state court issued an opinion denying relief (after the dismissal). The circuit reversed, holding that exhaustion is excused because of the delay and the state court decision decided after the habeas petition came too late. Note: Turner was actually out on parole when the circuit decided the case.
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Henry v. Poole,
No. 03-2884 (2nd Cir., May 24, 2005): Denial of habeas reversed on IAC grounds when trial counsel emphasized a "demonstrably fallacious" alibi defense--he apparently got the date wrong. This is one of those cases where the crime happened around midnight when the date changed and the defense alibi witness gave the alibi for the wrong day.
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United States v. Holder,
No. 03-7123 (10th Cir., June 6, 2005) (Published): Very nice win for Stephen Jones, Enid, where the Circuit remanded a federal habeas case for an evidentiary hearing on the issue of ineffective assistance of counsel. Strong opinion which seems to signal to the District Court to grant relief in a murder case. Holder may get a second bite at the apple.
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United States v. McCoy,
No. 03-2607 (3rd Cir., June 6, 2005): Similar to the Tenth Circuit's Holder case where the Circuit remands for an evidentiary hearing on an IAC claim.
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Rompilla v. Beard,
No. 04-5462 (U.S., June 20, 2005): Capital habeas case winner in an IAC claim where the Supreme Court held that even when a defendant and his family suggest that no mitigation evidence exists counsel still has a duty to obtain and review material that he knows the State will rely upon in aggravation. In this case, the State gave notice of its intent to use Rompilla's prior convictions for rape and assault to show prior violent felonies; but defense counsel failed to investigate or look at these priors in preparation for the penalty phase. Rompilla was prejudiced because the records in those cases contained crucial mitigation evidence that counsel could not obtain from merely talking to the family members. NOTE: this is also a solid win under the AEDPA where the state court ruling was found to be "unreasonable."
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Tenny v. Dretke,
No. 04-50468 (5th Cir., July 7, 2005): A rare habeas winner from the Fifth Circuit. Front-line winner on IAC claim where counsel did not investigate and present evidence of self-defense. Very instructive discussion if you have a self-defense case and particularly noteworthy because Tenny is a male who killed his female domestic partner and claimed self-defense; and, the Circuit rejected the State's claim that Tenny could not use self-defense once he wrestled the knife away from the woman and gained control of the knife(!) Also, very good case illustrating an AEDPA habeas winner where the state court opinion was an "unreasonable" application of Strickland in an opinion from a very conservative Circuit.
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Smith v. Dretke,
No. 04-10770 (5th Cir., July 12, 2005): State court (Texas) non-capital murder case where the District Court granted a writ of habeas corpus and the Fifth Circuit affirmed. This is another self-defense winner from the Fifth Circuit--the second in two weeks. The constitutional claim upon which relief was granted was IAC in failing to present witnesses who could have corroborated Smith's testimony that the victim was the aggressor in the fight.
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United States v. Ringer,
No. 03-5148 (10th Cir., July 18, 2005) (Unpublished): Another case where the Circuit remands to the District Court for an evidentiary hearing on an IAC claim.
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Kindler v. Horn,
No. 03-9010 (3rd Cir., September 3, 2008): 1. Habeas Corpus; Capital Habeas Cases; 2. Ineffective Assistance of Counsel: Capital habeas winner on a claim based on Mills v. Maryland (the jury instructions and verdict form created a reasonable likelihood that the jury believed it could only consider mitigating circumstances that jurors unanimously agreed upon). The panel also found reversible error in trial counsel's failure to investigate and present mitigation evidence.
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Michelle Ann Barry v. State,
No. F-2007-336 (Okl.Cr., September 25, 2008) (unpublished): 1. Ineffective Assistance of Counsel; 2. Character Evidence: Barry was tried by jury in Latimer County before the Hon. Bill Welch on a charge of Murder in the First Degree in the death of her infant daughter and sentenced to straight Life. The Court rejected Barry's sufficiency of the evidence claim, stating: "Taking the evidence in the light most favorable to the State, as we must, this Court finds that the jury could have reasonably concluded that Barry must have been the one to kill her daughter---and that this killing must have been intentional, because of the 'massive' force required---because the only other person in the house who was awake at the time Andrea was killed, i.e., her brother, Andre Heath, was simply not physically capable of inflicting the injuries that killed her." Andre Heath was only five-years-old. However, Barry was more successful on her IAC claim which argued that trial counsel was ineffective for failing to object to evidence of her drug use as res gestae (she used meth a couple of days prior to the death of Andrea), improper opinion evidence that Barry was a "bad mother," and for failing to develop evidence to rebut the State's contention that five-year-old Andre was incapable of hurting Andrea. REVERSED AND REMANDED FOR NEW TRIAL on the basis of IAC. Significantly, the first trial ended in a hung jury and the Court stated: "Trial counsel allowed the State to present a cascade of evidence, with nary an objection, about what a nasty, disgusting, infested home baby Andrea was found in, even though there was never any suggestion that any of these conditions, or any neglect of Andrea, had anything to do with the violent injuries that caused her death. In fact, trial counsel did almost nothing to limit the State's character attacks on Barry as a drinking, drug-using, incompetent, neglectful mother." For example, the State introduced a photograph of cockroaches in baby Andrea's bassinet that was more prejudicial than probative. NOTE: Although Judge Lumpkin concurred in results, Judge Lewis dissented and would affirm the conviction.
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Harries v. Bell,
No. 02-6286 (6th Cir., July 28, 2005): IAC winner on the penalty phase in a capital habeas case. AEDPA standards met.
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Graves v. State,
No. F-2004-688 (Okl.Cr., January 20, 2006) (unpublished): Interesting discussion of an ineffective assistance of counsel claim that works in this case--and just in the nick of time for Graves who had been sentenced to LWOP after being found guilty of trafficking w/drug priors. Reversed and remanded for new trial because his lawyers were ineffective in many respects, but most notably in working at cross-purposes on the motion to suppress and the trial itself. The opinion is detailed and in the final analysis the Court did not believe that the State's case was put through the process of adversarial testing. Terrific result. NOTE: As with many of the unpublished cases, Judge Lumpkin penned a lengthy dissent in which he chronicles the facts of the case. This helps tremendously because in most of the summary case the Court does not expound upon a lengthy factual recitation.
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United States v. Brooks,
No. 04-3218 (10th Cir., March 1, 2006) (Published): Convictions on several counts including possession of firearms and manufacturing meth are affirmed over several challenges involving sufficiency of the evidence and search and seizure issues. Brooks does get partial relief on one of the counts when it "merged" into another count for sentencing purposes (the counts were based upon the same conduct involving a manufacturing count and an attempted manufacturing count). NOTE: An ineffective assistance of counsel claim (for failing to file a suppression motion) was dismissed pursuant to circuit precedent mandating that such claims must be raised in collateral proceedings.
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James S. Richardson v. State,
No. F-2004-389 (Okl.Cr., March 27, 2006) (unpublished): IAC winner! Richardson was convicted of Robbery by Force (AFCF) and sentenced to 20 years. COCA remanded the case for an evidentiary hearing on an IAC claim involving some evidence of the clothing worn by Richardson at the time of his arrest. The victims and a police officer claimed that Richardson was wearing a "Yankees t-shirt" during the commission of the crimes and at the time of his arrest, but this shirt did not appear in the photographs taken at the jail (David Moss Correctional Center). The evidentiary hearing revealed that jail policy was that booking clothing was kept with personal items and not released until the person was released or until he went to DOC. Thus, the clothing was available at trial but counsel did not use it (as well as present the jail policy keeping the book-in clothing with the rest of the personal items). The District Court held it was ineffective to not investigate and use this evidence since the defense at trial was misidentification. COCA agreed and thus the case is reversed and remanded for new trial.
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Marrio D'Shane Willis v. State,
No. F-2004-67 (Okl.Cr., April 6, 2006) (unpublished): IAC winner and good practice pointer case. Willis was convicted of Robbery w/Firearms (AFCF) and sentenced to 10 years. The case was remanded to the District Court for an evidentiary hearing on IAC and newly discovered evidence. The main issue was whether the sole eyewitness mis-identified Willis as the robber. The legal issue was whether defense counsel was ineffective for failing to use "photographic evidence" that would have undermined the confidence of the eyewitness in his insistence that Willis was the robber. Significantly, at the evidentiary hearing, the eyewitness retracted his previous "100 percent sure" trial testimony based on the photographic evidence (the opinion does not say what this evidence was; a line-up maybe?) Case reversed and remanded for new trial. NOTE: The Court cited the duty of counsel to take steps to develop evidence that a mis-identification has occurred; and also cited cases supporting the procedure of requesting an in camera hearing to inquire of the eyewitness about possible mis-identification. I was not really aware generally that such a procedure existed but now I am, and so are you.
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Rolan v. Vaugh,
No. 04-4322 (3rd Cir., April 18, 2006): IAC/investigation winner! First Degree Murder case (originally a capital case, but subsequently life upon re-sentencing) where the panel affirmed the grant of first stage habeas relief on the basis of ineffective assistance of counsel for failing to investigate and present testimony from two witnesses who could have supported Rolan's claim of self-defense. Nice AEDPA winner.
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Fred Lloyd Holder v. United States,
No. CIV-02-556-FHS (E.D. Okla., June 21, 2006): Ineffective Assistance of Counsel: Holder was convicted in federal court in Muskogee of committing a murder while the victim was assisting a federal officer and also a separate count of impeding a federal officer in the performance of his duties. There was no dispute that Holder fired the shot that killed the person. The issue at trial centered around Holder's self-defense claim. Judge Seay held that trial counsel was ineffective for failing to call an eyewitness and to utilize available expert testimony. Very nice win, made even more nice by the fact that Judge Seay had previously denied the claim without an evidentiary hearing and Stephen Jones appealed to the Circuit, got it reversed and remanded for an evidentiary hearing, and eventually persuaded Judge Seay that the claim had merit.
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Adams v. Bertrand,
No. 05-1573 (7th Cir., June 30, 2006): Ineffective Assistance of Counsel: Three men were accused of what essentially is a date-rape at a college campus. Adams went to trial and was convicted. He did not call any witnesses. However, one of the co-defendants called a witness at trial who testified that she saw the complaining witness smoking cigarettes with the three men in the hallway after the alleged sexual assault. That trial ended in a hung jury. The Circuit found this persuasive evidence of IAC for failing to investigate the case and call the defense witness.
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Dickerson v. Bagley,
No. 04-4277 (6th Cir., July 7, 2006): Ineffective Assistance of Counsel; Death Penalty: Capital case winner on grounds that counsel failed to investigate for the penalty phase.
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Jiminez v. State,
2006 OK CR 43 (Okl.Cr., October 3, 2006): Plea Bargains; Ineffective Assistance of Counsel: Jiminez was convicted by jury in Oklahoma County of several counts including Burglary in the Second Degree, Possession of Burglar's Implements, Possession of Paraphernalia, and Possession of False ID, all after former conviction of a felony. He was sentenced to 12 years on the main charge by the Hon. Patricia Parrish. On appeal, he alleged that his trial counsel was ineffective for failing to convey to him a plea offer from the State of five years on the main charge with everything else running CC. The plea offer was open for a two week period prior to trial. For some reason, trial counsel waited until the day of trial to convey the plea offer to the client, the client indicated that he wanted to accept the offer, but the prosecutor refused to accept a plea at that point because the State was ready for trial. HELD: trial counsel was ineffective for failing to convey the plea offer in a timely manner and he was also prejudiced because there was a reasonable probability that he would have accepted it. The Court affirmed the convictions but modified the sentence to five years which effectively gave Jiminez the benefit of the plea bargain.
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Hammon v. Ward,
No. 05-6158 (10th Cir., October 25, 2006) (Published): Ineffective Assistance of Counsel: Oklahoma habeas case where two brothers were charged with drug and firearm possession after a traffic stop and search. The two brothers hired the same attorney and that is when the problems really started. Counsel worked out a deal for one brother, Demarcus, who had no priors, to receive a deferred sentence in exchange for pleading guilty and testifying against the other brother, Glen. No joint representation agreement was reduced to writing and there was no written waiver of conflict. The actual conflict arose when Glen went to jury trial under the impression that Demarcus would testify for him about the gun and the drugs. Demarcus was a no-show for trial but the issue came up regarding the role of Demarcus as a defense or a state witness. The panel held that Glen was entitled to an evidentiary hearing on his IAC claims and thus the District Court dismissal is REVERSED and remanded.
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Spisak v. Mitchell,
No. 03-4034 (6th Cir., October 20, 2006): Habeas Corpus; Capital Habeas Cases; Ineffective Assistance of Counsel: Capital case winner resulting in vacatur of the death penalty based upon trial counsel's closing argument during the sentencing phase (bizarre closing in which counsel described graphically the crime and told the jury his client deserved no sympathy, had no good thoughts, has done no good deeds, and is "sick" and "twisted") and also because of an "acquittal first" jury instruction."
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Stanley v. Bartley,
No. 06-2184 (7th Cir., October 17, 2006): Habeas Corpus; AEDPA Deference (Met); Ineffective Assistance of Counsel: Grant of habeas by the District Court in a non-capital murder case is affirmed on the basis of ineffective assistance of counsel in failing to interview or call witnesses on behalf of the client.
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Anderson v. Sirmons,
No. 04-6397 (10th Cir., February 21, 2007) (Published): Habeas Corpus; Capital Habeas Cases; Procedural Default; Ineffective Assistance of Counsel: REVERSAL OF A DEATH SENTENCE of an Oklahoma death row inmate based upon penalty phase IAC because trial counsel focused almost exclusively on the first-stage of the trial and failed to uncover mitigating evidence in the form of family history, mental health history, and drug usage. The Circuit stated: "the absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution's assertion Anderson was "evil." Although the case against Anderson was strong and the murders in this case were horrific, courts have not hesitated to grant relief in similar circumstances where the absence of available mitigation evidence left the jury with a "pitifully incomplete" picture of the defendant. Had the jury been presented a complete picture of Anderson's background and history, there is a reasonable probability at least one juror would have struck a different balance between the mitigating and aggravating factors." NOTE: The panel also noted that Rule 9.7(G) of the Rules of the Oklahoma Court of Criminal Appeals (requiring subsequent post-conviction applications to be filed within 60 days new facts are discovered) is not "adequate" to serve as a procedural bar because COCA itself does not always follow it.
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In re Prescott,
No. D047936 (Cal. App., April 3, 2007): Ineffective Assistance of Counsel: A trial court in California apparently had a policy in cases where a defendant wanted to withdraw a guilty plea of appointing counsel and then requiring counsel to report to the court whether there was a basis to withdraw the plea. In this case, defense counsel's report contained communications he had with Prescott. HELD: Prescott was denied the effective assistance of counsel and this is one of the rare cases where prejudice will be presumed.
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Marquez-Burrola v. State,
2007 OK CR 14 (April 17, 2007): Death Penalty; State Cases: Ineffective Assistance of Counsel: Marquez-Burrola received the death penalty for murdering his wife in what looked like a spur-of-the-moment rage killing along a highway. Marquez-Burrola thought his wife was unfaithful and he stabbed her to death with a knife. The crime was discovered quickly when a truck driver saw Marquez-Burrola "driving along the highway with a blood-soaked body in the passenger seat of his car[.]" Somehow, the State managed a conviction on premeditated murder in this case. In this appeal, the Court affirmed the murder conviction (Marquez-Burrola was obviously guilty of killing his wife) over claims of competency to stand trial, sufficiency of the evidence of premeditation, first stage jury instructions, the introduction of a pre-mortem photograph of the victim, denial of consular assistance, and first-stage IAC. HOWEVER, in evaluating a claim of penalty-phase IAC, the Court vacated the death sentence and imposed a sentence of LWOP. The case was remanded to the District Court for an evidentiary hearing in Grady County before Judge Richard G. Van Dyck. Although Judge Van Dyck heard compelling mitigating witnesses, many of them from Mexico where Marquez-Burrola was born and raised, he refused to find sufficient prejudice to vacate the death penalty. The Oklahoma Court of Criminal Appeals disagreed with him and not only vacated the death penalty, but imposed LWOP rather than remand. This might be explained by the fact that the record contains evidence that Marquez-Burrola suffers from serious mental illness and may not be competent to be executed.
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United States v. Guerrero,
No. 05-3299 (10th Cir., June 14, 2007) (Published): Ineffective Assistance of Counsel: Guerrero proceeded pro se in this appeal, contending that he directed his attorney to file an appeal after his guilty plea but the attorney failed to do so. He inartfully plead the claim, not raising it in his verified motion but raising it in an unverified memorandum. Since both documents were filed timely under the AEDPA, the panel directed the district court to allow Guerrero to file an amended section 2255 motion and determine whether the allegations are true.
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United States v. Tapp,
No. 05-30222 (5th Cir., June 28, 2007): 1) Filing Deadlines; 2) Ineffective Assistance of Counsel: Tapp, a federal prisoner, filed a 2255 habeas petition alleging that trial counsel was ineffective for failing to file timely a notice of appeal. The kicker here is that Tapp waived his right to appeal. In this case, the Fifth Circuit joined other circuits (including the Tenth Circuit) in holding that Supreme Court precedent still allows an IAC claim on this issue because if the prisoner can show by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal.
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United States v. Poindexter,
No. 05-7635 (4th Cir., June 28, 2007): 1) Filing Deadlines; 2) Ineffective Assistance of Counsel: Oddly enough, it appears the Fourth Circuit decided the same issue on the same day as the Fifth Circuit in the Tapp case above: "We hold that an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement."
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Maddox v. Hoch,
No. 07-6088 (10th Cir., August 7, 2007) (Unpublished Order): Ineffective Assistance of Counsel: An Oklahoma prisoner, proceeding pro se, sued two Oklahoma court-appointed attorneys for ineffective assistance of counsel in a 42 U.S.C. sec. 1983 action. HELD: The attorneys are not "state actors" acting under color of law; therefore, the order dismissing the complaint is AFFIRMED.
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Morales v. Mitchell,
No. 00-3694 (6th Cir., November 2, 2007): 1) Habeas Corpus; Capital Habeas Cases; 2) Ineffective Assistance of Counsel: Capital habeas case where the death penalty was vacated on the basis of IAC of trial counsel for failure to investigate and present mitigation evidence.
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Garrison v. Ward,
No. CIV-04-218-FHS-KEW (E.D. Okla., July 20, 2007): Ineffective Assistance of Counsel: Garrison was convicted of murder in Oklahoma and, after getting no relief from the state courts, pressed his claims in the federal courts. In this Report and Recommendation, Magistrate Kimberly E. West recommends the writ be granted on IAC claims that counsel failed to present evidence of mental health status and also the trial court failed to give a lesser crime instruction. Judge Seay agreed with the Report and issued the writ. The State did not appeal and Garrison is going to get a re-trial.
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