Beardslee Gets Execution Date and COA. Donald Beardslee, according to a CDC press release, is scheduled to be killed by the state by lethal injection on January 19. But last week, the Ninth Circuit issued an unusual order, granting a certificate of appealability for Beardslee to brief a new issue. This is quite unusual in that his appeal has already been decided, rehearing denied, and cert. denied. Significantly, however, the mandate had not yet issued.

The grant of the COA, however, may not result in a stay of execution. The Ninth Circuit's December 16 order, directed "the parties to file simultaneous briefs on the merits on or before December 20, 2004, and simultaneous reply briefs on or before December 23, 2004."

The issue? "Beardslee has now requested the issuance of a certificate of appealability (“COA”), arguing that he is entitled to relief pursuant to Sanders v. Woodford, 373 F.3d 1054 (9th Cir. 2004), a decision that was issued by another panel of this Court during the pendency of his petition for a writ of certiorari." Here's the Ninth Circuit's reasoning for granting a COA:

After undertaking “an overview of the claim[]” and “a general assessment of [its],” id., we conclude that Beardslee has satisfied the relatively low standard for the issuance of a COA. In Sanders, we determined that the California Supreme Court, after invalidating two of four special  circumstances, had failed to reweigh the mitigating and aggravating factors or apply the correct harmless error standard. 373 F.3d at 1063. Because we were unable to conclude that the invalid special circumstances did not have a substantial or injurious effect or influence on the jury’s choice of sentence, we granted Sanders relief as to his sentence. Id. In the case before us, the California Supreme Court invalidated three of Beardslee's four special circumstances. See People v. Beardslee, 53 Cal.3d 68, 117 (1991). As in Sanders, the California Supreme Court in Beardslee did not review the special circumstances error under the harmless beyond a reasonable doubt standard. See id.; cf. Sanders, 373 F.3d at 1063; see also People v. Sanders, 51 Cal.3d 471, 521 (1990). Therefore, "[r]easonable jurists could debate whether, 'in light of the record as a whole,' the three invalid special circumstances had a 'substantial and injurious effect or influence' on the jury's death penalty verdict and therefore whether the error was not harmless." See Sanders, 373 F.3d at 1060, 1064-65 (applying Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), harmless-error standard where California Supreme Court failed to conduct an "adequate, independent" review of the effect of an invalid special circumstance). In view of the change in the law caused by Sanders, the issue presented deserves encouragement to proceed further.