Capital habeas corpus has popped up in the national news this past week.
First, on a really sad note, Georgia announced that it had set September 21 as the execution date for Troy Davis. I followed that actual innocence habeas case very closely around here. I am guessing I wrote more posts about that case than any other single case.
Second, the Supreme Court ordered a stay in a death penalty habeas case out of Texas, Buck v. Thaler. The main issue in the case is race-related -- at the penalty stage of the trial, a psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released. It's an interesting issue, as there were other cases in Texas that had the same problem, but Buck was the only one of those cases in which the State of Texas did not agree to a new trial. So Buck stands out.
But there is a problem. And it appears to be a pretty big one. Buck, obviously, is a habeas case. And in its most recent decision, the Fifth Circuit concluded that the petition raising this race-related claim issue was second or successive. It is this decision upon which Buck is going to have to seek cert. Reviewing that decision, I am not sure if I see a ground on which Buck could obtain cert -- either substantively or procedurally. So I think the odds that Buck obtains cert, even though there are serious issues in his case, are not looking good.
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