Circuit Watcher

05-10210 Downs v. McNeil
Before BLACK, HULL and WILSON, Circuit Judges.
BLACK, Circuit Judge: Ernest Charles Downs is a prisoner on Florida’s death row. After exhausting his opportunities for state court review, he turned to the federal courts on December 12, 2001, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely because it was filed eight days beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1).
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Regardless whether the petition was timely, Downs contends he is entitled to equitable tolling because of egregious conduct by his counsel throughout his postconviction proceedings. In the alternative, Downs argues on appeal that he is entitled to a hearing on the merits of his petition because he has made a colorable showing that he is actually innocent of a capital offense. We conclude the facts he has alleged, if true, would entitle him to equitable tolling for a period equalling, at a minimum, the eight days by which he missed the statutory limitations period. Therefore, we vacate the district court’s dismissal of the petition and remand for an evidentiary hearing on the facts underlying Downs’ request for equitable tolling. … Downs v. McNeil.

05-1120 U.S. v. Corley
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. The defendant-appellant Odell Corley was convicted of a number of charges including bank robbery and capital murder, and was sentenced to death on October 27, 2004. He appeals his convictions and his sentence.
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The convictions stemmed from Corley’s actions with others on August 27, 2002 in robbing a bank, and killing two persons and paralyzing a third at the bank. The robbery attempt was planned in advance and was to involve Corley and four others, Edward Johnson, Andre McGregor, Danyass Gay and Jeanna Ramsey. …
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At trial, Johnson testified against Corley, and the prosecution also introduced the videotape from the bank, as well as the palm print left at the scene. The prosecution sought the death penalty, and therefore the voir dire included questions concerning the juror’s views regarding the death penalty, and the prospective jurors’ exposure to publicity regarding the death penalty. In addition, because the defendants in the case are African-American and the victims were white, the prospective jurors’ were also queried on their racial views. Corley now raises myriad challenges to both his trial and sentencing … The conviction and sentence are AFFIRMED. U.S. v. Corley.

07-11611 Trawick v. Allen
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM: Jack Trawick appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Trawick was convicted of capital murder in Alabama in 1994 and sentenced to death. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Trawick’s conviction and death sentence for the kidnaping and murder of Stephanie Gash, and the U.S. Supreme Court denied Trawick’s petition for a writ of certiorari. Trawick v. State, 698 So. 2d 151 (Ala. Crim. App. 1995); Ex parte Trawick, 698 So. 2d 162 (Ala. 1997); Trawick v. Alabama, 522 U.S. 1000 (1997). His Alabama Rule 32 petition was denied, and that denial was summarily affirmed on appeal. Trawick v. State, 854 So. 2d 1215 (Ala. Crim. App. 2002); Ex parte Trawick, 856 So. 2d 963 (Ala. 2002). Trawick then filed this federal habeas corpus petition, which the district court denied. This appeal followed.
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The only issue before us on appeal is whether Trawick is entitled to federal habeas relief on his claim that the State of Alabama exercised its peremptory strikes in a discriminatory manner by using eleven of its fourteen strikes to remove women from the venire in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994), which prohibits gender discrimination in jury selection.¹ Although Trawick did not raise any objection to gender-biased striking during trial, he did argue that claim on direct appeal to the Alabama Supreme Court on the basis of J.E.B., which the U.S. Supreme Court decided several weeks after Trawick’s conviction.² The Alabama Supreme Court held that Trawick failed to establish a prima facie case of gender discrimination. …the district court opinion denying Trawick’s petition for habeas relief is AFFIRMED. Trawick v. Allen.

1. This is the sole issue upon which a Certificate of Appealability was granted. [↩]
2. Trawick was convicted by a petit jury on March 23, 1994. The U.S. Supreme Court issued J.E.B. on April 14, 1994. [↩]

07-10 Yarbrough v. Johnson
Published opinion after argument: Affirmed
Eastern District of Virginia 2:05-cv-00368-JBF Jerome B. Friedman
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
NIEMEYER, Circuit Judge: A jury in Mecklenburg County, Virginia, convicted Robert Yarbrough of the 1997 capital murder and robbery of Cyril Hamby, and sentenced him to death. The Supreme Court of Virginia vacated his sentence because of an erroneous jury instruction. On remand, a second jury sentenced Yarbrough to death again, and the Supreme Court of Virginia affirmed.
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After exhausting state procedures for post-conviction relief, Yarbrough filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2254, asserting six grounds for relief. The district court denied Yarbrough’s petition, but granted him a certificate of appealability with respect to his claim that his trial counsel was constitutionally ineffective because he failed to request that the trial court appoint a DNA expert at public expense. We expanded the certificate of appealability to include Yarbrough’s claim that the trial counsel was constitutionally ineffective for inadequately investigating and presenting evidence in mitigation at sentencing.
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For the reasons that follow, we affirm the district court’s dismissal of Yarbrough’s two claims for which a certificate of appealability has been issued, concluding that in denying these claims on the merits, the Supreme Court of Virginia neither unreasonably applied clearly established federal law nor made an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). … Yarbrough v. Johnson.

07-6 Cagle v. Branker
Eastern District of North Carolina 5:02-hc-00666-H Malcolm J. Howard
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
WILKINSON, Circuit Judge: Richard Cagle, a North Carolina prisoner convicted of murder and sentenced to death, appeals the district court’s dismissal of his petition for a writ of habeas corpus. He claims that the absence of a key witness, ineffective assistance of counsel as to a motion to sever, ineffective assistance of counsel as to mitigation, and the lack of a jury instruction as to voluntary intoxication deprived him of a fair trial and sentence. Having reviewed his claims with care, we find them to be without merit and affirm the district court. … Cagle v. Branker.

05-70038 Moore v. Quarterman
BEFORE: JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD and SOUTHWICK, Circuit Judges.
BY THE COURT: A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc, IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of en banc briefs. Moore v. Quarterman.

04-11711 Lawhorn v. Allen
BEFORE: BIRCH, BARKETT and WILSON, Circuit Judges.
BIRCH, Circuit Judge: An Alabama jury found petitioner James Charles Lawhorn (“Lawhorn”) guilty of capital murder and recommended that he be sentenced to death. The state circuit court judge adopted that recommendation and sentenced Lawhorn to death. After exhausting his state court remedies, Lawhorn filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court granted in part and denied in part Lawhorn’s habeas petition, and the state appealed.1 After a thorough review of the record, and having the benefit of oral argument and the parties’ briefs, we REVERSE the district court’s judgment granting Lawhorn habeas relief by suppressing his confession, and AFFIRM the district court’s judgment granting Lawhorn habeas relief on the issue of ineffective assistance of counsel. … Lawhorn v. Allen.