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Kevan Brumfield v. Burl Cain, Warden, USSC No. 13-1433, cert. granted 12/5/14

Questions presented:

I.   Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002), has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2).

II.   Whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright, 477 U.S. 399 (1986), and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma, 470 U.S. 68 (1985).

Lower court opinion: Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014)


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This is a death-penalty habeas case with no obvious applicability to Wisconsin practice. We take note of it, however, for the following reasons:

First, the decision being reviewed conflicts with a decision in a very similar case from our Circuit, Allen v. Buss, 558 F.3d 657 (7th Cir. 2009). Briefly, the federal district court held the state postconviction court had acted contrary to Atkins and Ford v. Wainwright when it denied Brumfield an evidentiary hearing on his Atkins claim and the funding to hire experts to develop the claim. And, after a lengthy evidentiary hearing, the district court found Brumfield had shown he was ineligible for execution under Atkins. The Fifth Circuit reversed the district court, holding the state court wasn’t wrong to deny a hearing or funding and didn’t make an unreasonable determination of the fact in finding that Brumfield wasn’t mentally retarded. The Fifth Circuit’s approach on both these questions is contrary to the approach taken in Allen. Thus, the Court’s decision may affect circuit precedent.

Second, the question of how far courts must go to satisfy Ake affects practice in all criminal cases, capital and non-capital, in state and federal courts, so the Court’s decision on that issue may impact practice generally.

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