Wednesday, May 18, 2011

W.D. Va. Grants Habeas Petition

Winston v. Kelly, No. 7:07CV00364, 2011 WL 1838844 (W.D. Va. May 16, 2011):

A jury convicted Winston of three counts of murder and imposed three death sentences.  Winston filed a habeas petition pursuant to § 2254.  The court rejected all of his claims except two interrelated claims:  (1) Winston could not be executed because he is mentally retarded, and (2) Winston's attorney was ineffective for raising that issue below.  Although the Supreme Court of Virginia rejected claim two on the merits, the federal court concluded that it was not wholly implausible that Winston could establish the claim even in light of AEDPA's deferential standards.  The federal court held an evidentiary hearing to resolve this claim at the direction of the Fourth Circuit.  (Respondents aver that Cullen v. Pinholster and Harrington v. Richter "overrule" the Fourth Circuit's mandate.  The district court stated that "[c]learly this is not an appropriate forum for the argument.")

The W.D. Va. concludes that Winston's attorney performed deficiently regarding whether Winston was mentally retarded:
Reading essential, reasonably available documents is one of capital counsel's fundamental responsibilities, and the court finds that counsel's failure to read the document was not reasonable under all the circumstances. Accordingly, the evidence establishes counsel's deficient performance in handling the issue of whether Winston is retarded and, under Atkins, not subject to execution.
The court also concluded that Winston's attorney actions prejudiced Winston.  Accordingly, the court granted Winston's petition for a writ of habeas corpus.  As a consequence, Virginia must conduct a trial on the question of whether Winston is mentally retarded, and sentence him accordingly, or otherwise re-sentence him without the possibility of death.

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