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Despite Sparse Mitigation Efforts by Trial Counsel, Capital Habeas Petitioner's Claims Rejected

By Shari Allison

Smith v. Workman, ___ F.3d ___, No. 05-6206 (10th Cir. 2008)Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner?s two previous violent felony convictions and the probability of his continuing threat to society. The federal district court held an evidentiary hearing on Petitioner?s claim of ineffective assistance of counsel (IAC) at mitigation. Issues on appeal and resolution by Court: (1) No IAC for failure to raise Ake claim during mitigation because at time of P?s trial, Ake (entitling a Defendant to psychiatric expert) only applied when the state presented psychiatric evidence of future dangerousness, and had not been extended to require an expert when state put on non-psychiatric evidence of future dangerousness, as was done in Petitioner?s trial...continue to full post

Full post as published by Tenth Circuit Blog on January 05, 2009 (boomark / email).