Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit's 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that "the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court's own approach" in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. "The need for this Court's intervention no longer exists," Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, "has been resolved." (Identical arguments were made in the two cases.)
The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court's more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state's Postconviction Litigation Division in the state attorney general's office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.
The Fifth Circuit Court of Appeals on Wednesday (Dec. 27) denied request for en banc consideration expressly to (try to) resolve the question of the Supreme Court's jurisdiction over the matter by making decision "final".
And, that's not all...for the rest of the controversy, link there. (How Appealing/Howard Bashman--thank you!)
This is big too (from Texas): (Thanks to Karl Keys--Capital Defense Weekly--link at right)
Although I have been repeatedly calling 2006 the “Year of the Needle” it may well be remembered as the year the Texas death penalty was saved. As I am prepping up the year end review in caselaw I am stunned at the developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso