Free Response in Opposition to Motion - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NUMBER: 14000) AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 WEST WASHINGTON STREET PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 E-MAIL: [email protected] (STATE BAR NUMBER: 022246) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner,

CIV 04­573­PHX­FJM (MS) RESPONDENTS' OPPOSITION TO PETITIONER'S MOTION TO COMPEL

-vsDORA B. SCHRIRO, et al.,
Respondents.

Respondents respectfully submit their opposition to Petitioner's motion to

17 compel Respondents to furnish case law. (Doc. 56.) As explained more fully in 18 the following memorandum of points and authorities, Respondents respectfully 19 urge the Court to deny the motion. 20 21 22 23 24 25 26 27 28
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DATED this 2nd day of May, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

S/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES For the third time in this habeas litigation,1 Petitioner insists that the Court

3 should compel his adversary to furnish him with case law to rebut his adversary's 4 position. What makes this third request particularly irregular, however, is that 5 Petitioner wants Respondents to provide him with cases not from some recently 6 filed document authored by Respondents but, instead, he wants Respondents to 7 mail him cases that the Court cited in its Report and Recommendation. 8 Unlike Petitioner's first two requests for Respondents to mail him case law 9 (Docs. 37 & 51) during which Respondents refrained from expressing their long10 standing opposition to the practice of requiring Respondents to furnish case law, 11 Respondents must now register their opposition. If the Court surmises that 12 Petitioner needs the case law that the Court cited in the Court's Report and 13 Recommendation, then Respondents believe that the burden of producing and then 14 mailing the cases that the Court cited should respectfully be borne by the Court. 15 Respondents obviously lack control over what cases the Court elects to cite to 16 buttress its reasoning, and for that reason, Respondents should not bear the burden 17 of expending extremely limited time to engage in what is tantamount to the indirect 18 private practice of law by undertaking Petitioner's legal research. See 19 A.R.S. § 41­191(B) (mandating that "[t]he attorney general and his assistants shall 20 devote full time to the duties of the office and shall not directly or indirectly 21 engage in the private practice of law . . . "); cf. Lewis v. Casey, 518 U.S. 343, 354 22 (1996) (characterizing the state prisoners' demand that the State confer the 23 resources to initially discover claims and then subsequently litigate those claims in 24 25 See Doc. 39 (Respondents' notification to the Court that Respondents mailed Petitioner all 49 of the published opinions that Respondents cited in their answer 26 under Document 33) and Doc. 53 (Respondents' notification to the Court that Respondents mailed Petitioner all seven of the published opinions and the 27 complete text of 28 U.S.C. § 2254 that Respondents cited in their supplemental 28 answer to Ground V under Document 49).
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court as "effectively to demand permanent provision of counsel, which we do not believe the Constitution requires"). Given that federal constitutional law provides no "abstract, freestanding right to a law library or legal assistance,"2 and the Supreme Court has explicitly disclaimed­­in original emphasis­­that "the State must enable the prisoner to discover grievances, and to litigate effectively once in court[,]"3 Respondents respectfully request that the Court deny the motion to compel Respondents to furnish case law that the Court, not Respondents themselves, have cited in the Court's Report and Recommendation. Respondents recognize that this opposition is the first time that Respondents have cited Lewis v. Casey, and hence in an abundance of caution and in a demonstration of their good faith, Respondents enclose the Lewis v. Casey opinion as Exhibit A to (hopefully) obviate the need for a fourth round of additional briefing on whether Respondents should mail Petitioner a copy of that case. When it comes to the case law that Respondents have never cited, however, Respondents believe that the burden of producing and mailing those cases should fall on the institution that cited the requested cases, not on Petitioner's adversary. DATED this 2nd day of May, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL S/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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Casey, 518 U.S. at 351. Id. at 354.
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Case 2:04-cv-00573-FJM

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CERTIFICATE OF SERVICE

2 I hereby certify that on May 2, 2006, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and deposited for 3 mailing the attached document and transmittal of a Notice of Electronic Filing to the following non-registered ECF participant: 4 WILLIAM FLOYD SMITH #130587 5 A.S.P.C. ­ Florence/South Unit 3A2 P. O. Box 8400 6 Florence, AZ 85232 7 Petitioner Pro Se 8 9 s/AARON J. MOSKOWITZ 10 11 CRM96­0446 124710 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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