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Earp v. Cullen, No. 08-99005

Capital Habeas Matter

In Earp v. Cullen, No. 08-99005, a capital habeas matter, the court affirmed in part the denial of petitioner's habeas petition where the record belied petitioner's allegations of insufficient investigation of possible mitigating circumstances.  However, the court reversed in part where the district court erred by permitting a witness to anticipatorily claim the Fifth Amendment privilege because the court believed that she was going to testify untruthfully.

As the court wrote:  "Petitioner-Appellant Ricky Lee Earp was sentenced to death after a jury convicted him of first-degree murder for the rape and murder of eighteen-month-old Amanda Doshier. We affirmed in part but remanded in part Earp's first appeal of the denial of his petition for a writ of habeas corpus and instructed the district court to conduct an evidentiary hearing addressing two specific issues: (1) Earp's allegations of prosecutorial misconduct relating to the testimony of witness Michael Taylor; and (2) Earp's claim of ineffective assistance of counsel arising from a failure to sufficiently investigate mitigation evidence."

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