Supreme Court will decide whether Ala. death row inmate can challenge sentence

Court to decide if man can fight death sentence

WASHINGTON — The Supreme Court on Wednesday questioned whether an Alabama death row inmate can challenge his second death sentence with an argument state officials said he didn’t use when he was first sentenced to die for shooting a county sheriff.

Lawyers for Billy Joe Magwood want to argue that Alabama law was changed to make Magwood’s crime a capital offense after it had already been committed.

Defendants aren’t allowed to appeal using arguments that could have been brought in the original case, but Magwood’s lawyers say that since he was sentenced to die a second time, he should be able to use a new argument in his second round of appeals.

“If it’s the second time around, then it’s just barred,” Justice Anthony Kennedy said.

“Well, it shouldn’t be barred. Because it’s a new judgment, the defendant should be able to get relief the second time around,” said Jeffrey L. Fisher, Magwood’s lawyer.

Magwood, 58, has been on Death Row since 1981 for the shooting death of Coffee County Sheriff Neil Grantham in 1979. He got that death sentence thrown out, but then was resentenced to death.

A federal judge overturned the new death sentence after Magwood complained that state law was changed to make his crime a capital offense after it had already been committed. But the 11th U.S. Circuit Court of Appeals in Atlanta reinstated the death penalty, saying Magwood should have complained about the change in Alabama state law in his first round of appeals.

Alabama officials said Magwood doesn’t get a second chance to make an argument that could have been made before judges a long time ago.

“Your test, I take it, is that he must have one full and fair opportunity to litigate the question. That means to raise it, to have it aired and to have it decided,” Justice Ruth Bader Ginsburg said.

“Absolutely. The point would be, it’s not an abuse of the writ if you raise a claim the first time but don’t have the chance to have it adjudicated,” Alabama Solicitor General Corey L. Maze said. “You abuse the writ, as this court has always said, by having a chance to raise the claim but then not doing it.”

The court will make a decision later this year.

The case is Magwood v. Patterson, 09-158.