SCOTUS Denies Stay of Florida Execution - Breyer Dissents

Approximately 2 hours and thirty minutes after the Miami Herald ran a story saying the State of Florida had executed Manuel Valle, a story picked up by news outlets around the country, the United States Supreme Court denied a stay of execution with a dissent by Justice Breyer. The News-Press, who ran the wire story, captures the timeline below along with the Herald's correction. Directly below that is the Supreme Court's Order [you will likely need to zoom in to view the Supreme Court's Order]:

Manuel Valle Corrections

Manuel Valle v. Florida, 564 U.S. _ (2011) Supreme Court Orders Denying Valle's Petitions

Justice Stevens on the Death Penalty

Justice Stevens wrote a book review about the death penalty and was interviewed by 60 Minutes.  The book review was published by The New York Review of Books, is titled "On the Death Sentence" and can be viewed HERE.  The interview can be viewed HERE and HERE. 

Florida Supreme Court Stays Execution Of David Eugene Johnston

After hearing oral argument earlier in the day, the Florida Supreme Court stayed the execution of David Eugene Johnston and reversed the summary denial of his post conviction motion. The two page 5-2 order can be viewed HERE.  The court stated:

Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Johnston's newly discovered evidence claim relating to mental retardation and temporarily relinquish jurisdiction to the circuit court for thirty days for an evidentiary hearing to be held on the issue of whether newly discovered evidence indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this appeal until jurisdiction returns to this Court after the relinquishment. 

Articles can be found at the following links: Orlando Sentinel; Associated Press; UPI; Miami Herald.  Additionally, the briefs in the case, all filed since March 1, 2010, are below:

*Notice of Appeal

*Johnston's Initial Brief on Appeal

*Florida's Answer Brief

*Johnston's Reply Brief

Florida Supreme Court Denies Martin Grossman's Motion For Postconviction Relief - Execution Scheduled For Next Week

The Florida Supreme Court issued an opinion today denying Martin Edward Grossman's third successive motion for postconviction relief.  The opinion can be viewed HERE.  A Miami Herald article about the decision can be viewed HERE and an article in the Tampa Tribune HERE.  The execution is scheduled for February 16, 2010 at 6:00pm.  The court's summary is below:

Martin Edward Grossman, a prisoner under sentence of death and under an active death warrant, appeals from the trial court’s order summarily denying his motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction over the appeal under article V, section 3(b)(1), of the Florida Constitution. In his successive motion filed after the death warrant was signed, the summary denial of which is the subject of the present appeal, Grossman raised claims that were either previously raised in his postconviction proceedings that concluded in 1997 or repeatedly rejected by this Court as legally without merit. Therefore, as more fully explained in this opinion, we affirm the trial court’s order.

Presumably, a petition for certiorari will be filed in the United States Supreme Court and a motion to stay execution will be filed with Justice Thomas.  As of now, there is nothing on the Supreme Court's docket to reflect any filings.

Prior opinions are in this case are: Grossman v. State, 525 So. 2d 833 (Fla. 1988), cert. denied, 489 U.S. 1071 (1989); Grossman v. Dugger, 708 So. 2d 249 (Fla. 1997); Grossman v. Crosby, 880 So. 2d 1211 (Fla. 2004); Grossman v. Crosby, 359 F. Supp. 2d 1233 (M.D. Fla. 2005), aff’d sub nom. Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006), cert. denied, 550 U.S. 958 (2007); Grossman v. State, 932 So. 2d 192 (Fla. 2006); and Grossman v. State, 5 So. 3d 668 (Fla. 2009).

Prosecutorial Misconduct Leads To Reversal Of Death Sentence By Florida Supreme Court

In Johnson v. State of Florida (SC08-1213), the Florida Supreme Court reversed the death sentence imposed on Paul Beasley Johnson because "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."  Interestingly, it was a 4-1 decision of the court.  Chief Justice Quince and Justice Canady were recused and Justice Polston wrote a dissent. Justice Perry wrote the majorities decision and was joined by Justice Pariente, Justice Lewis and Justice Labarga.  Oral argument took place on October 28, 2009 and can be viewed HERE.

The court had previously stayed Mr. Johnson's execution which was discussed HERE,  the application for stay was discussed HERE, and a prior post HERE discusses the Governor's execution of a death warrant a few months ago.  The court stated:

Specifically, we conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally induced Johnson to make incriminating statements to a jailhouse informant in violation of Johnson‘s right to counsel. Because Johnson‘s statements were impermissibly elicited, the informant‘s testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264 (1980). Second, although the prosecutor at Johnson‘s first trial knew that Johnson‘s statements were impermissibly elicited and that the informant‘s testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because the informant‘s testimony was admitted and then later used at Johnson‘s 1988 trial, and because the State has failed to show that this error did not contribute to the jury‘s advisory sentences of death, we must vacate the death sentences under Giglio v. United States, 405 U.S. 150 (1972), and remand for a new penalty phase proceeding before a new jury.

This result is compelled by the applicable case law of both the United States Supreme Court and this Court. This case law is based on the principle that society‘s search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar.....In other words, whenever the State seeks to obfuscate the truth-seeking function of a court by knowingly using false testimony or misleading argument, the integrity of the judicial proceeding is placed in jeopardy.

The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court in an effort to convince the court that a jailhouse informant was not acting on instructions from the State when he gathered information from Johnson. In fact, however, the informant was acting on instructions from the State, and this rendered his testimony inadmissible. The prosecutor knew this. Yet, the prosecutor sought, successfully, to gain the admission of the informant‘s testimony through legal legerdemain, and the informant subsequently testified at trial and revealed his impermissible testimony to the jury.

This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court.

(emphasis added).  The dissent stated:

In this case, even assuming that the testimony at issue was false and that the prosecutor knew it was false, a reversible Giglio violation did not occur because the testimony was immaterial. When viewed in context, there is no reasonable possibility that Smith‘s testimony affected Johnson‘s death sentences....In light of the fact that Smith‘s testimony was brief, effectively impeached, cumulative, and included statements supporting Johnson‘s proposed drug use mitigators, there is no reasonable possibility that it affected Johnson‘s sentences. Therefore, no reversible Giglio violation occurred.

As previously posted--You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The docket for the appeal just determined and discussed above can be seen here.  The Florida Supreme Court's opinion in case number No. SC01-2182 can be found here.  Other prior opinions are referenced below:

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

Eleventh Circuit Reinstates Death Sentence-Reverses Grant Of Habeas Relief

In Boyd v. Allen (07-14908), a divided pane of the Eleventh Circuit released a 88 page published opinion reversing the district court's decsion granting habeas relief and reinstated the sentence of death for William Glenn Boyd.  The underlying crime was described by the court as:

The brutal facts surrounding the kidnaping, robbery, and murder of Fred and Evelyn Blackmon are these. The Blackmons disappeared from their home in Anniston, Alabama, on March 26, 1986. Between 9:30 and 10:00 a.m. that morning, Mr. Blackmon, accompanied by a slender white male with long dark hair, cashed a $5,000 check at the drive-in window of an Anniston branch of the First Alabama Bank, where Mr. Blackmon maintained an account. At around 9:00 p.m. that night, Julie Greenwood, petitioner Boyd’s ex-girlfriend and Evelyn Blackmon’s twenty-year-old daughter, returned to the Blackmons’ house, where she lived, only to discover that Fred and Evelyn Blackmon were missing, along with their black Cadillac Eldorado. Two days later, Julie and her father, Wayne Greenwood, filed a missing person’s report with the Anniston Police Department.  The Blackmons were never seen alive again.

With regard to the habeas relief, the opinion indicates the district court entered a 198 page order denying habeas relief.  The order denying relief can be viewed HERE.  "On December 22, 2004, Boyd moved the district court to alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e). Almost three years later, the district court granted in part and denied in part Boyd’s Rule 59(e) motion."  The order granting the motion to amend can be viewed HERE. With regard to the district court's order, the Eleventh Circuit stated:

The district court granted relief on Boyd’s claim that his trial counsel were constitutionally ineffective during the penalty phase of the trial, holding that trial counsel performed deficiently when they failed to conduct a reasonable investigation of mitigating evidence, particularly concerning his childhood, and, thereafter, failed to present this evidence to the jury and the sentencing judge.

The majority stated:

In reaching our decision, we realize that the jury recommended a life sentence for Boyd, and that prejudice “is more easily shown” in jury override cases.....In light of the brutal nature of these crimes and the specific findings made by the trial court that sentenced Boyd to death, we find no reasonable probability that the mitigating circumstances gathered and presented in connection with Boyd’s state habeas proceedings would have altered the balance of aggravating and mitigating factors in this case and changed the outcome of the sentencing proceedings. Although it is always possible that evidence of Boyd’s childhood could have caused a sentencing judge to impose a sentence of life rather than death, we cannot honestly find that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688. Thus, on this record, we conclude that Boyd has failed to establish Strickland prejudice, and in turn, has failed to establish that he received ineffective assistance of counsel during the penalty phase of his trial. See id. at 697. The state habeas courts properly denied relief on this ineffective-assistance-of-counsel claim.

Judge Marcus wrote the opinion for the majority and was joined by Judge Birch.  Judge Barkett wrote the dissent.  Judge Barkett stated:

I concur in the majority’s opinion except for its conclusion that counsel’s failure to investigate and present at sentencing the horrific details of Boyd’s background did not prejudice Boyd under Strickland....Importantly, this court has held that in a jury override case, prejudice is “more easily shown.”....On this record, where the trial judge overrode the jury’s recommendation of a life sentence, there is without question a “reasonable probability” that, had counsel presented the wealth of testimony adduced at Boyd’s state habeas proceedings regarding Boyd’s turbulent and abusive childhood, such evidence would have altered the balance of aggravating and mitigating factors relied upon by the trial judge in overriding the jury’s sentence....In the recent case of Porter v. McCollum, 558 U.S. __, 130 S. Ct. 447, 454 (2009), the Supreme Court reversed this court’s judgment that, among other things, petitioner Porter had not established prejudice under Strickland arising out of his counsel’s failure to present evidence of his background to the jury or the trial court.

Supreme Court Reverses Eleventh Circuit On Ineffective Assistance Of Counsel Claim Involving Mitigation Evidence In Death Sentence Case

In Porter v. McCollum, 558 U.S. __ (2009) (08-10537), the United States Supreme Court reversed this decision of the Eleventh Circuit.  Mr. Porter is currently on death row in Florida, convited of murder. The Supreme Court described the facts as follows:

In July 1986, as his relationship with Williams was ending, Porter threatened to kill her and then left town. When he returned to Florida three months later, he attempted to see Williams but her mother told him that Williams did not want to see him. He drove past Williams’ house each of the two days prior to the shooting, and the night before the murder he visited Williams, who called the police. Porter then went to two cocktail lounges andspent the night with a friend, who testified Porter wasquite drunk by 11 p.m. Early the next morning, Porter shot Williams in her house. Burrows struggled with Por-ter and forced him outside where Porter shot him.

The issue in this case revolves around failure to present mitigating evidence.  The Supreme Court's opinion began:

Petitioner George Porter is a veteran who was bothwounded and decorated for his active participation in twomajor engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or presentduring the penalty phase of his trial in 1988.

A divided Florida Supreme Court denied postconviction relief on these same grounds in Porter v. State, 788 So. 2d 917 (Fla. 2001) (per curiam).  The United States District Court for the Southern District of Florida granted habeas relief in Porter v. Crosby, No. 6:03–cv–1465–Orl–31KRS, 2007 WL 1747316(MD Fla., June 18, 2007). However, that decision was reversed by the Eleventh Circuit.  See 552 F. 3d 1260 (11th Cir. 2008).  The Supreme Court held:

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce thatevidence violated his Sixth Amendment right to counseland granted his application for a writ of habeas corpus. The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984). Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable prob-ability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. We therefore grant the petition for certiorari in part and reverse the judgment of the Court of Appeals.

Sixth Circuit Reverses Order That Stayed Ohio Executions & Kentucky Supreme Court Stays Kentucky Executions

In Cooey v. Strickland (09-4300), the Sixth Circuit reversed an order staying executions in Ohio.  That opinion can be found here.  On the same day, the Supreme Court of Kentucky released an opinion in Bowling, et al v. Department of Corrections (2007-SC-000021-MR) that stays the death penalty in the state of Kentucky.

Texas Federal Judge Grants Eleventh Hour Stay Of Execution Of Gerald Eldridge

United States District Court Judge Judge Lee Rosenthal granted an eleventh hour repreive to Texas death row inmate Gerald Eldridge.  Judge Rosenthal stayed the execution for at least 90 days and stated:

The issue now before this court is not whether Eldridge is, or is not, mentally ill or whether he is, or is not, competent to be executed in compliance with the Constitution. The only issue now before this court is whether, based on the record presented, the prisoner has made a 'substantial threshold showing of insanity.' Id. If such a showing is made, the execution must be delayed to permit a “fair hearing” to determine competency to be executed. A fair hearing requires an opportunity to submit evidence and arguments from the prisoner’s counsel, including expert psychiatric evidence to respond to the State’s own psychiatric examination. Id. at 952. The record before this court shows that Eldridge has made that substantial threshold showing. Under the case law, this court must therefore stay his execution to determine whether his condition allows his execution.

The caselaw the court was citing to is Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930, 948 (2007).  You can see articles here, here,  here,  and here.  You can view Judge Rosenthal's ten page stay order below:
Eldridge v. Thaler

You can also see an unpublished decision from the Fifth Circuit in Eldridge v. Quarterman that was released on April 28, 2009 here. 

Supreme Court Denies Stay Of Execution Of Robert Thompsn - Texas Governor Rejects Plea By Texas Parole Bard To Grant Clemency - Thompson Executed

Today, the Supreme Court denied a petition for certiorari and application for stay of executon filed by Robert L. Thompson.  You can see the Supreme Court's order here.  Interestingly, the Texas parole board urged Texas Governor Perry to grant clemency.  See here.  The Texas Board of Pardons and Paroles suggested his death sentence be commuted to life in prison because he was not the shooter of the victim.  Mr. Thompson was executed shortly after the Supreme Court denied the stay and after Governor Perry denied clemency.  See here and here.

Supreme Court Denies Two Requests For A Stay Of Execution - Both With Three Dissents

The Supreme Court denied two requests for stay of execution this week: Elliott v. Kelly (09-444) was denied Monday and Simpson v. Thaler (09-7505) was denied on today.  In both cases, Justice Stevens, Justice Ginsburg, and Justice Sotomayor would have granted the requests.

Mr. Elliott was executed tonight by electrocution [see an article here].  The decision to die by electrocution was his own as Virginia gives the person the choice of how they would like to be killed.  

Mr. Simpson was executed tonight by the State of Texas. The Dallas Morning News states that "A convicted killer who volunteered for execution but in recent weeks changed his mind was put to death Wednesday evening for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river."  You can read the Dallas Morning News article here.

Supreme Court Denies Stay Application of Sniper John Allen Muhammad

The United States Supreme Court denied the application for a stay of execution filed by the D.C. area sniper John Allen Muhammad.  A post about the Fourth Circuit's denial of his petition for habeas relief can be found here.  While agreeing with the decision to deny the application for stay, Justice Stevens, joined by Justice Ginsburg and Justice Sotomayor, noted that it is unfortunate that Virginia chose to rush the process to such a degree as to not permit the Court to review a timely filed petition for certiorari. The Court's decision can be found

09-7328

Florida Supreme Court Stays Execution Of Paul Beasley Johnson

The Florida Supreme Court granted a stay of execution yesterday in the case of Paul Beasley Johnson.  Mr. Johnson was convicted for the 1981 muders "of a cab driver, a good Samaritan who gave Johnson a ride and a deputy in Lakeland." [See Post on Politics]. 

The stay order can be found here.  Prior posts relating to Mr. Johnson's exeuction, previously scheduled for November 4, 2009, can be found here and here.  The court stated "the Court hereby grants a stay of execution in order to consider tpe significant issues raised in Claim 1 of this appeal concerning prosecutodal misconduct. This stay is in effect pending further order of the Court."

The stay was entered by Justice Perry, Justice Labarga, Justice Lewis and Justice Pariente.  Justice Polston dissented.  Chief Justice Quince and Justice Canady were recused.

Articles about the stay can be found in the Miami Herald, the Ledger, the Palm Beach Post and News Chief.

I previously posted the following which will provide additional information:

You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The lone active appeal can be seen here. 

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

Supreme Court Denies Stay Of Execution Filed By Reginald Blanton - Texas Executes Blanton Two Hours Later

The United States Supreme Court denied last minute attempts by Reginald Blanton to stay his execution which was scheduled for tonight.  The orders entred by the Court today can be found here and here.  An article in the Dallas Morning News about the Court's denial can be found here.  KVUE has an article here.

CBS 11 has an article here confirming that the execution took place less than two hours after the Supreme Court's orders.

Application For Stay Of Execution Filed By Paul Beasley Johnson In Florida Supreme Court

Paul Beasley Johnson, scheduled to be executed on November 4, 2009, filed an Application for Stay of Execution in the Florida Supreme Court today.  The filing can be found here.

Johnson was convicted for the 1981 muders "of a cab driver, a good Samaritan who gave Johnson a ride and a deputy in Lakeland." [See Post on Politics].

A prior post on this case can be found here.

Hearing On Constitutionality Of Ohio's Execution Methods Postponed

The hearing scheduled before a federal district court Judge in Ohio on the constitutionality of Ohio's execution process has been postponed.  10tv.com has a story stating "In an order filed Monday, U.S. Southern District Court of Ohio Judge Gregory Frost said both sides need more time before bringing the battle over the state's lethal injection system to court, 10TV's Andy Hirsch reported."  A subsequent story stated "Broom has a Dec. 9 hearing regarding the stay of execution originally granted by Judge Gregory Frost."

As discussed here, the Sixth Circuit has recognized the importance of the upcoming hearing and held:

Broom’s arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

Other posts relating to Mr. Broom's execution can be found here and here.

Federal Judge Indefinitely Stays Ohio Executon Of Kenneth Biros

United States District Court Judge Gregory Frost has indefinitely delayed the execution of Kenneth Biros.  The New York Times has an article which can be found here.  The New York Times articles states:

The execution of Kenneth Biros, 51, convicted of a 1991 murder and attempted rape, was stayed on Monday to allow the state attorney general and defense lawyers to gather more information about Ohio’s lethal injection protocol. The protocol has come under question since the failed execution of Romell Broom on Sept. 15.

An AFP article can be found here and an article by the Associated Press can be found here.

Supreme Court Reverses Denial Of Habeas Petition In Death Penalty Case

The Supreme Court issued an opinion and reversed the Seventh Circuit in JOSEPH E. CORCORAN v. MARK LEVENHAGEN, SUPERINTENDENT, INDIANA STATE PRISON (08-10495). That opinion can be found here.

An Indiana jury convicted Joseph Corcoran of fourcounts of murder. Corcoran was sentenced to death. After Corcoran’s challenges to his sentence in the Indiana courts failed, he sought federal habeas relief. Corcoran argued inhis federal habeas petition that: (1) the Indiana trial court committed various errors at the sentencing phase; (2) hissentence violated the Sixth Amendment; (3) Indiana’s capital sentencing statute was unconstitutional; (4) the prosecution committed misconduct at sentencing; and (5)he should not be executed because he suffers from a men-tal illness. See Corcoran v. Buss, 483 F. Supp. 2d 709, 719, 726 (ND Ind. 2007).

The Seventh Circuit reversed the District Court’s Sixth Amendment ruling. Corcoran v. Buss, 551 F. 3d 703, 712, 714 (2008). Then, without mentioning Corcoran’s other sentencing claims, the Seventh Circuit remanded “with instructions to deny the writ,” stating that “Indiana is atliberty to reinstate the death penalty.” Id., at 714.

***

We now grant certiorari and hold that the Seventh Circuit erred in disposing of Corcoran’s other claims with-out explanation of any sort. The Seventh Circuit should have permitted the District Court to consider Corcoran’sunresolved challenges to his death sentence on remand, or should have itself explained why such consideration was unnecessary.

Supreme Court Grants Certiorari In Four Cases - Including One From A Former Enron Executive And One A Florida Death Row Inmate

The Supreme Court granted certiorari in four cases this week [The issues are copied from the SCOTUS Blog]:

SKILLING, JEFFREY K. V. UNITED STATES (08-1394)

This case is brought by a former Enron executive and is discussed in the Chicago Tribune here,  the New York Times here,  the Wall Street Journal here,  and the Houston Chronicle here.  You can view the SCOTUS Wiki page here.  The SCOTUS Blog has articles here,  here,  here  and here.

Issue: Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether § 1346 is unconstitutionally vague. Whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Opinion below (5th Circuit)

Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of National Association of Criminal Defense Lawyers

HOLLAND, ALBERT V. FLORIDA (09-5327)

Issue: Whether the Eleventh Circuit erred in denying equitable tolling to the defendant to excuse his late filing of his habeas petition, based on the conclusion that the late filing was due to “gross negligence” of counsel, while factors beyond “gross negligence” are required for equitable tolling; whether equitable tolling is available to toll the statute of limitation under the AEDPA.

Opinion below (11th Circuit)
Petition for certiorari
Brief in opposition

UNITED STATES V. MARCUS, GLENN (08-1341)

Issue: Whether the Second Circuit departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statutes in question.

Opinion below (2d Circuit)

Petition for certiorari

Brief in opposition

Petitioner’s reply

HEALTH CARE SERVICE CORP. V. POLLITT, JULIA., ET AL. (09-38)

Issue: Whether the Federal Employees Health Benefits Act, 5 U.S.C. § 8902(m)(1), preempts a state court lawsuit filed against a government contractor administering such benefits.

Opinion below (7th Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply

 

The Supreme Court's entire order list is below:

 

October 13, 2009 Order List

Supreme Court Affirms Denial Of Motion Seeking DNA Testing In Death Penalty Case

In Scott v. State (SC07-1734), the Supreme Court of Florida affirmed the trial court's "order denying a motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853."  Prior appeals by Mr. Scott can be found at: Scott v. State, 411 So. 2d 866, 867 (Fla. 1982); Scott v. State, 717 So. 2d 908 (Fla. 1998); Scott v. State, 657 So. 2d 1129 (Fla. 1995); Scott v. Dugger, 634 So. 2d 1062 (Fla. 1993); Scott v. State, 513 So. 2d 653 (Fla. 1987); Scott v. State, 464 So. 2d 1171 (Fla. 1985); Scott v. Wainwright, 433 So. 2d 974 (Fla. 1983); Scott v. State, 419 So. 2d 1058 (Fla. 1982).

The court stated:

In December 2005, Scott filed a 3.853 motion pro se and an amended motion requesting appointment of counsel. The trial court appointed Scott legal representation, and his new counsel filed an amended motion for postconviction DNA testing of blood stains in the following areas: a wood chair in the kitchen, the bedroom/family room hallway, a circle of blood, the south wall, a dividing wall, and the hall wall. The amended motion alleged that DNA testing would exonerate Scott by establishing that the blood stains in certain areas are consistent with the victim’s blood and the imprint of a champagne bottle which Kondian admitted (post-trial) he used to strike the victim. The motion also alleged that the results of the DNA tests would show that blood stains in other areas belonged to either Scott or Kondian, not the victim, a point he claims is in direct opposition to the State’s theory at trial.

***

A review of Scott’s motion reveals that he adequately described the evidence to be tested, established its last known location, asserted that the evidence had not been previously tested for DNA, and alleged that his identification was genuinely However, the motion remains legally insufficient because Scott failed to show that there is a reasonable probability the test results would exonerate him or lessen his sentence. As we have stated, "It is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence." Robinson v. State, 865 So. 2d 1259, 1265 (Fla. 2004) (citing Hitchcock v. State, 866 So. 2d 23 (Fla. 2004)). And, when the defendant cannot show that DNA will prove or negate a material fact, the request for testing should be denied.