Madison Request For Re-Hearing
Madison Request For Re-Hearing
17-193
v.
A NGELA L. S ETZER
C OUNSEL OF R ECORD
R ANDALL S. S USSKIND
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104
[email protected]
(334) 269-1803
CAPITAL CASE
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
III. This Court Should Not Resolve the Substantial and Important
Factual Issues in this Case Without Full Briefing and
Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COUNSEL
i
TABLE OF AUTHORITIES
CASES
Eskridge v. Wash. State Bd. of Prison Terms and Paroles, 357 U.S. 214
(1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315 (11th Cir. 2013). . . 13
ii
Jones v. Barnes, 463 U.S. 745 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iii
Woods v. Donald, 135 S. Ct. 1372 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTES
MISCELLANEOUS
iv
State of Alabama’s Expedited Motion to Set an Execution Date, Nov. 8,
2017. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
v
PETITION FOR REHEARING
petitions for rehearing of the Court’s per curiam decision issued on November
6, 2017. Dunn v. Madison, No. 17-193, 2017 WL 5076050 (Nov. 6, 2017). Mr.
Madison moves this Court to grant this petition for rehearing and consider his
case with merits briefing and oral argument. Pursuant to Supreme Court Rule
44.1, this petition for rehearing is filed within 25 days of this Court’s decision in
this case.
Since the passage of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) and up until the issuance of its opinion in this case, this Court has
lower appellate court’s grant of habeas corpus relief where the constitutional
claim received no state appellate court review.1 But that is precisely what
1
See, e.g.,Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam
reversal of habeas corpus relief where Graham claim first raised in state trial
court and reviewed by Virginia Supreme Court); White v. Wheeler, 136 S. Ct.
456, 458 (2015) (per curiam reversal of habeas corpus relief where Witherspoon-
Witt claim reviewed by Kentucky Supreme Court on direct appeal); Woods v.
Donald, 135 S. Ct. 1372, 1375 (2015) (per curiam reversal of habeas corpus relief
where ineffective assistance of counsel claim raised on direct appeal and rejected
by Michigan Court of Appeals and Michigan Supreme Court).
1
competency-to-be-executed claims, Alabama Code Section 15-16-23, that
execution to a single, elected trial judge,2 and then made that decision
unreviewable by any state appellate court. See Ala. Code § 15-16-23 (prohibiting
appellate review of trial court’s competency finding); Weeks v. State, 663 So. 2d
1045, 1046 (Ala. Crim. App. 1995) (Ala. Code § 15-16-23 “clearly states that a
finding by the trial court on the issue of insanity, as it relates to this statute, is
This Court did not acknowledge Alabama’s lack of any state appellate
“demanding standard” of the AEDPA, Dunn, 2017 WL 5076050, at *1, and its
summary disposition did not address the complicated questions about the
parameters of habeas corpus law in the context of the unique procedural posture
of this case. Rehearing is appropriate for this Court to consider the following
substantial questions:
Alabama, alone among the states with a current death penalty, has
2
Circuit judges in Alabama run in partisan elections and are elected to a
term of six years. Ala. Code §17-14-6.
2
affirmatively opted to preclude any state review – judicial or executive– of a trial
to be executed. Of the 31 states that currently have a death penalty, only two,
executed determination. See Allen v. State, 265 P.3d 754 (Okla. Crim. App. 2011)
Rev. Stat. Ann. § 137.463 (“no appeal my be taken from an order issued
claim and the vast majority of states provide appellate review of such claims
3
Oklahoma’s procedures allow for more process than the statute in
Alabama, however. There, if the warden determines that competency is at issue,
a twelve-person jury is impaneled for a competency hearing at the trial court
level. If the warden finds that the prisoner has not made a threshold showing of
incompetency, the prisoner can petition the state trial court to review that
determination via a writ of mandamus. Moreover, if the trial court agrees with
the warden, the condemned prisoner can then appeal that decision to the
Oklahoma Court of Criminal Appeals. Either way, a petitioner in Oklahoma is
entitled to more extensive state court review of a competency claim than the
determination of a single, elected state trial judge. See Cole v. Trammell, No.
15-CV-049-GKF-PJC, 2015 WL 4132828 at *4-5 (N.D. Okla. July 8, 2015)
(staying petition to allow petitioner to exhaust available state court remedies for
competency-to-be-executed claim).
4
Oregon currently has a moratorium on the death penalty. See Oregon’s
New Governor Plans to Continue Death Penalty Moratorium, Death Penalty
Information Center, http://deathpenaltyinfo.org/node/6060 (last visited Nov. 15,
2017).
3
either by statute or case law.5
5
See Ariz. Rev. Stat. Ann. § 13-4022 (within five days after superior court
grants or denies motion for examination or rules whether prisoner is competent,
either party may petition Arizona Supreme Court for review); Colo. Rev. Stat.
Ann. § 18-1.3-1407 (within seven days after district court rules on motion raising
issue of whether convicted person is mentally incompetent to be executed, either
party may file for review with Colorado Supreme Court); Red Dog v. State, 620
A.2d 848, 850-51 (Del. 1993) (reviewing trial court’s determination of defendant’s
competency-to-be-executed); Ferguson v. State, 112 So. 3d 1154 (Fla. 2012)
(reviewing trial court’s competency-to-be-executed finding); Ga. Code Ann. §
17-10-70 (unsuccessful applicant of competency-to-be-executed claim may appeal
to Georgia Supreme Court within three days of entry of order denying relief);
Timberlake v. State, 858 N.E. 2d 625 (Ind. 2006) (once Indiana Supreme Court
determines competency-to-be-executed claim clears state habeas successor bar,
petitioner is entitled to pursue claim under state post-conviction statute which
provides for counsel at public expense and to return to trial court for competency
determination subject to subsequent appellate review); Ky. Rev. Stat. Ann. §
431.2135 (court’s determination of prisoner’s competency-to-be-executed may be
appealed to Kentucky Supreme Court by either party); La. Rev. Stat. Ann. §
15:567.1 (statute governing competency hearings states that “any party against
whom a decision is rendered pursuant to this Section may make an appropriate
application for a writ of certiorari or review directly to the Louisiana Supreme
Court.”); Miss. Code Ann. § 99-19-57 ( circuit court’s competency to-be-executed-
determination “is a final order appealable under the terms and conditions of the
Mississippi Uniform Post-Conviction Collateral Relief Act.”); State ex rel. Cole
v. Griffith, 460 S.W.3d 349, 356 (Mo. 2015) (state supreme court has jurisdiction
to hear original habeas raising competency-to-be-executed claim); Calambro By
& Through Calambro v. Second Judicial Dist. Court, 964 P.2d 794, 796 (1998)
(reviewing district court’s competency-to-be-executed claim filed via next friend
petition); State v. Flowers, 558 S.E.2d 179 (N.C. 1998) (requiring trial court to
certify order, transcript, and record to state supreme court within 20 days of
entry of order in competency-to-be-executed claim); State v. Awkal, 974 N.E.2d
200, 204 (Ohio Ct. App. 2012) (defendant can appeal competency determination
but state cannot appeal determination of incompetency in part because “[a]
defendant’s substantial right is affected when he or she is found to be competent
for execution because obviously a defendant cannot raise the issue once
executed.”); Commonwealth v. Banks, 29 A.3d 1129, 1135 (2011) (initial
competency-to-be-executed claims should be reviewed by state trial courts and
4
Thus, even though this was Mr. Madison’s first opportunity to raise an
v. Quarterman, 551 U.S. 930, 958 (2007), and Ford v. Wainwright, 477 U.S. 399,
409-10 (1986),6 the state trial judge’s factual and legal determinations were not
subject to review by any state appellate court. This procedural posture raises
significant concerns about the reach of the “demanding standard” of the AEDPA,
Indeed, the principles of comity that undergird the AEDPA do not carry
the same force where a state has declined to provide “full and fair” procedures
for reviewing a constitutional claim. 7 See Ex parte Hawk, 321 U.S. 114, 118
5
(1944) (“[W]here resort to state court remedies has failed to afford a full and fair
adjudication of the federal contentions raised, either because the state affords
no remedy . . . or because in the particular case the remedy afforded by state law
entertain his petition for habeas corpus, else he would be remediless.” (internal
citation omitted)); see also Castille v. Peoples, 489 U.S. 346, 350 (1989) (“federal
habeas review will lie where state corrective processes are ineffective to protect
Consistent with this view, circuit courts have recognized that “full and fair
“at least one evidentiary hearing in a trial court and the availability of
meaningful appellate review when there are facts in dispute, and full
consideration by an appellate court when the facts are not in dispute.” Lawhorn
v. Allen, 519 F.3d 1272, 1287 (11th Cir. 2008) (citations omitted);8 see also
6
Willett v. Lockhart, 37 F.3d 1265, 1272-73 (8th Cir. 1994) (“As Stone suggests,
a breakdown in the mechanism can occur in either the trial court or the state
appellate court.”).
case has deprived the defendant of his right to appellate counsel, this Court and
record by a state appellate court and discouraged “one tier” review. See Smith
v. Robbins, 528 U.S. 259, 265, 281 (2000) (approving California’s procedure,
under which “[t]he appellate court, upon receiving a ‘Wende brief,’ must ‘conduct
a review of the entire record,’ regardless of whether the defendant has filed a pro
se brief”); Hughes v. Booker, 220 F.3d 346, 351 (5th Cir. 2000) (“Indeed, neither
the Supreme Court nor this court has approved of a procedure for withdrawal of
counsel that affords an indigent defendant only one level of review of the record
for potentially meritorious appellate issues.”); cf. Eskridge v. Wash. State Bd. of
Prison Terms and Paroles, 357 U.S. 214, 216 (1958) (holding that one level of
review – by trial judge only – “cannot be an adequate substitute for the right to
full appellate review available to all defendants in Washington who can afford
the expense of a transcript”); Griffin v. Illinois, 351 U.S. 12, 18-19 (1956) (“All
of the States now provide some method of appeal from criminal convictions,
7
or innocence. Statistics show that a substantial proportion of criminal
the inconsistent application of the law, cf. Ornelas v. United States, 517 U.S. 690
necessary if appellate courts are to maintain control of, and to clarify, the legal
See Jones v. Barnes, 463 U.S. 745, 756 n.1 (1983) (Brennan, J., joined by
Marshall, J., dissenting) (“There are few, if any situations in our system of
8
Wainwright, 477 U.S. 399, 409-10 (1986).9 In the context of the Eighth
Amendment, this Court has repeatedly recognized that state appellate review
v. Harris, 465 U.S. 37, 59 (1984) (Stevens, J., concurring in part) (“[O]ur decision
certainly recognized what was plain from Gregg, Proffitt, and Jurek: that some
judges.”); Parker v. Dugger, 498 U.S. 308, 321 (1991) (“We have emphasized
repeatedly the crucial role of meaningful appellate review in ensuring that the
Despite this Court’s recognition of the need for appellate review in the
9
Because a competency-to-be-executed claim does not become ripe until
an execution is imminent, Panetti, 551 U.S. at 946 (“claims of incompetency to
be executed remain unripe at early stages of the proceedings”), this Court has
recognized the exceptional nature of a Ford claim in allowing petitioners the
opportunity to litigate it in federal court, even where federal habeas review has
already been completed. See Stewart v. Martinez-Villareal, 523 U.S. 637, 639
(1998) (Ford claim not subject to restrictions on “second or successive” habeas
petition); Panetti, 551 U.S. at 947 (same).
10
See also Gregg v. Georgia, 428 U.S. 153, 194 (1976) (plurality) (“[T]he
further safeguard of meaningful appellate review is available to ensure that
death sentences are not imposed capriciously or in a freakish manner.”); cf.
Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality) (finding
unconstitutional capital sentencing scheme where “there is no way . . . for the
judiciary to check arbitrary and capricious exercise of that power through a
review of death sentences”).
9
context of capital punishment, the per curiam opinion in this case will permit
III. This Court Should Not Resolve the Substantial and Important
Factual Issues in this Case Without Full Briefing and Argument.
In this case, the unrebutted evidence presented in the state trial court
which, along with several previous severe strokes, led to significant decline in
manner, is legally blind, can no longer walk independently, and has urinary
dementia and along with cognitive decline and significant memory deficits
On the basis of this evidence, each judge on the Eleventh Circuit panel
found that as a matter of fact and law, Vernon Madison is incompetent and that
10
851 F.3d at 1190 (“We therefore conclude that Mr. Madison is incompetent to be
executed.”); id. (Jordan, J., dissenting) (“I believe that Vernon Madison is
Though this Court explicitly declined to express a view “on the merits of
5076050, at *3, the State of Alabama has now filed a motion seeking an
expedited execution date for Vernon Madison, asserting that “there are no
that was never reviewed by a state appellate court, this Court should grant
rehearing so that it may have the benefit of full merits briefing and argument.
See McWilliams v. Dunn, 137 S. Ct. 1790, 1807 (2017) (Alito, J., dissenting)
briefing, which in turn helps the Court reach sound decisions” (internal citations
omitted)).
determinations made in this Court’s summary opinion. First, it is simply not the
11
case that the lower court opinion (and Dr. Goff’s) was based on a finding that Mr.
Dunn, 2017 WL 5076050 at *2. Rather, the lower court’s determination was
based on the “unrebutted evidence that Mr. Madison suffers from vascular
dementia, has no memory of his capital crime, was not malingering during the
experts’ evaluations, and believes he has not killed anyone – as well as the utter
lack of any testimony that Mr. Madison understands the connection between the
Nor was Dr. Goff’s opinion based solely on what Mr. Madison remembered.
Goff was attempting to find the answer to two questions: “One, is there[]
something wrong with him, and the other thing is does what’s wrong with him
not invariably indicate that the person is incompetent: rather, it means that
“something is wrong with him.” (Doc. 8-1 at 117.) And, in Dr. Goff’s reasoned
12
that was wrong with Mr. Madison was that his brain had been traumatized,
Moreover, in Dr. Goff’s opinion, the “something wrong with him” – the
Madison from rationally understanding his execution. This is precisely the sort
incompetent to be executed. See Panetti, 551 U.S. at 962; see also Ferguson v.
Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1344 (11th Cir. 2013).
And, contrary to this Court’s conclusion that “testimony from each of the
psychologists who examined Madison supported the court’s finding that Madison
understands both that he was tried for and imprisoned for murder and that
Alabama will put him to death as a punishment for that crime,” Dunn, 2017
WL 5076050, at *2, the record establishes that Dr. Goff’s conclusion is that Mr.
the State. (Doc. 8-1 at 110, 120 (testifying that Mr. Madison does not
“understand the act that he’s being – that he’s being punished for.”). Whatever
awareness Dr. Goff determined that Mr. Madison had of the “nature of
execution,” as well as “what he was tried for,” it does not necessarily render Mr.
13
Madison competent because, as this Court established in Panetti, a “prisoner’s
awareness of the State’s rationale for an execution is not the same as a rational
understanding of it,” 551 U.S. at 959. As to the critical question of whether Mr.
professional opinion, Mr. Madison “does not seem to understand the reasoning
Critically, Dr. Kirkland, the State’s expert,11 when asked by the state trial
that the State is seeking retribution against him for an act that he committed
in the past,” responded only that Mr. Madison, “talked specifically about death
sentence versus life without in the original trial and the first retrial and in the
second.” (Doc. 8-1 at 124.) Similarly, when asked by counsel for the State about
whether Mr. Madison had knowledge of his execution, Dr. Kirkland testified that
Mr. Madison “understands that that is, as applied to him, that he has two
11
This Court summarily reversed even though Dr. Kirkland was arrested
and charged with multiple counts of Unlawful Possession or Receipt of a
Controlled Substance on April 18, 2016, just four days after Mr. Madison’s
competency hearing. Montgomery Psychologist Charged with Using Forged
Prescription, WSFA 12 (Aug. 18, 2016 2:56 pm) http://www.wsfa.com
story/32792305. Dr. Kirkland was suspended from the practice of psychology on
September 9, 2016. See Ala. Bd. of Exam’r in Psychology, Psychologist Search
or License Verification, www.psychology.state.al.us/licensee.aspx (search “Karl
Kirkland”) (last visited Nov. 16, 2017).
14
choices or two sentences that are – that are there; one being execution and one
being life without parole.” (Doc. 8-1 at 78-79.) Dr. Kirkland could not explain
why he did not include this information in his written report, (Doc. 8-1 at 80-81),
or that such information was actually not true: at no point in his appeals has the
These are precisely the type of factual issues that need to be resolved in
full briefing and argument and for this reason, rehearing is appropriate. See
Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting)
(summary disposition only appropriate in cases where “law is settled and stable,
the facts are not in dispute, and the decision below is clearly in error”).
CONCLUSION
Mr. Madison respectfully requests that this Court grant the petition for
rehearing and order full briefing and argument on the merits of this case.
Respectfully Submitted,
15
CERTIFICATE OF COUNSEL
I hereby certify that this petition for rehearing is presented in good faith