The Appellate Corner

Publication year2012
Pages0106
CitationVol. 73 No. 2 Pg. 0106
THE APPELLATE CORNER

Vol. 73 No. 2 Pg. 106

The Alabama Lawyer

MARCH, 2012

Marc A. Starrett

Jason B. Tompkins

By Marc A. Starrett

Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

Decisions of the United States Supreme Court-Criminal

Miranda; Initial Refusal to Speak to Police and Subsequent Interrogation

Bobby v. Dixon, 132 S. Ct. 26 (2011)

Police officers did not violate the defendant's Miranda rights by interrogating him five days after he refused to speak to them without an attorney during a noncustodial "chance encounter." The Court also noted that there is no case law prohibiting police from encouraging a suspect to confess before another suspect does so.

Federal Habeas Corpus Procedure; State Court's Sufficiency of Evidence Finding Entitled to Deference

Cavasos v. Smith, 132 S. Ct. 2 (2011)

The Court reversed the court of appeals' granting of habeas relief to a defendant convicted in state court of causing a child's death from "Shaken Baby Syndrome." The Court concluded that the evidence before the jury could not be reweighed, and that the state appellate court's conclusion that sufficient evidence supported the verdict was entitled to deference under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

Federal Habeas Corpus Procedure; State Court's Adjudication of Issue Governed by Federal Law in Effect at Time of Adjudication

Greene v. Fisher, 132 S. Ct. 38 (2011)

Under the AEDPA, the federal court's review of the state court's interpretation of federal law must be based on the law that was in effect at the time of the state court's decision, rather than the law in effect when the decision became final.

Federal Habeas Corpus Procedure; Confrontation Clause

Hardy v. Cross, 132 S. Ct. 490 (2011)

The Court reversed the court of appeals' holding that a state prosecutor failed to adequately show that a sexual assault victim was unavailable to testify for purposes of the Confrontation Clause. To satisfy the Sixth Amendment, the prosecutor was not required to "exhaust every avenue of inquiry, no matter how unpromising" to find a witness before introducing her previous testimony at trial.

Decisions of the Eleventh Circuit Court of Appeals-Criminal

Federal Habeas Corpus Procedure; Miranda; Invocation of Right to Remain Silent

Lumpkins v. Sec'y, Dept. of Corr., No. 11-11159, 2011 WL 6760332 (11th Cir. Dec. 27, 2011)

The state court's denial of motion to suppress the defendant's statement was not an unreasonable application of federal law; he did not unambiguously invoke his right to remain silent, and the detectives' act of allowing (notably, not preventing) him to speak to his family did not constitute coercion.

"Fair Warning" Provision of the Due Process Clause

Magwood v. Warden, Ala. Dept. of Corr., No. 07-12208, 2011 WL 6306665 (11th Cir. Dec. 19, 2011)

The defendant's death penalty sentence violated the Due Process Clause because he did not have "fair warning" that the aggravating circumstance making his act a capital offense-the killing of a law enforcement officer-would be considered at sentencing by the trial judge.

Right to Counsel; Resentencing

Duharte v. Sec'y, Dept. of Corr., nos. 09-11322, -11539, -13783, 2011 WL 6152346 (11th Cir. Dec. 12, 2011)

The defendant possessed a right to counsel under the Sixth Amendment at resentencing, a "critical stage" of her proceedings in this case. The trial court did not simply perform a ministerial act of resentencing; rather, it required the defendant to argue regarding the validity of a prior conviction and made a finding regarding her habitual offender status.

Federal Habeas Corpus Procedure; Deference to State Court's Factual Findings; Brady; Giglio; Gardner

Consalvo v. Sec'y, Dept. of Corr., No. 10-10533, 2011 WL 6141663 (11th Cir. Dec. 12, 2011)

The defendant failed to show that the state court's findings that the prosecution did not withhold evidence or present false evidence, and that his death sentence was not based on evidence in violation of his due process rights, were contrary to, or an unreasonable application of, federal law.

Federal Habeas Corpus Procedure; Giglio

Guzman v. Sec'y, Dept. of Corr., No. 10-11442, 2011 WL 6061337 (11th Cir. Dec. 7, 2011)

The defendant was entitled to habeas relief because the state court's conclusion that the prosecution's use of false evidence at trial was not material was an objectively unreasonable application of federal law.

Federal Habeas Corpus Procedure; Death Penalty/Mental Retardation

Hill v. Humphrey, No. 08-15444, 2011 WL 5841715 (11th Cir. Nov. 22, 2011)

The state court's requirement that the defendant prove mental retardation beyond a reasonable doubt did not violate clearly established federal law prohibiting the execution of the mentally retarded.

Federal Habeas Corpus Procedure; Tolling of AEDPA Limitation Period

Walton v. Sec'y, Dept. of Corr., 661 F. 3d 1308 (11th Cir. 2011)

The defendant's failure to comply with the state procedural requirement for filing a second post-conviction petition rendered that petition not "properly filed," thus failing to toll the AEDPA limitation period.

Federal Habeas Corpus Procedure; Ineffective Assistance of Counsel

Frazier v. Bouchard, 661 F. 3d 519 (11th Cir. 2011)

The Alabama Court of Criminal Appeals' holding that the defendant failed to sufficiently plead his ineffective assistance claim in an Ala.R.Crim.P. Rule 32 petition was a reviewable merits determination, rather than a rejection of the claim on procedural grounds for purposes of procedural default. However, the denial of relief on the claim was not contrary to, or an unreasonable application of, federal law.

Federal Habeas Corpus Procedure; Successive Petition

Campbell v. Sec'y, Dept. of Corr., No. 10-12404, 2011 WL 4840725 (11th Cir. Oct. 13, 2011)

Because, following Magwood v. Patterson, 130 S. Ct. 2788 (2010), a habeas petition seeking relief from a resentencing is not...

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