Free Response 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) RESPONSE TO MOTION FOR DETERMINATION OF PROCEDURAL STATUS OF GROUND V

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

Respondents respectfully submit their response to Petitioner's motion for

17 determination of procedural status of Ground V. (Doc. 45.) Respondents oppose 18 the motion for two reasons. 19 First, the motion is irrelevant to this Court's determination of the habeas 20 petition. Under the guise of a motion for a determination of a procedural status, 21 Petitioner is improvidently attempting to obtain a decision on but one aspect of his 22 habeas petition. Tellingly, Petitioner never claims any prejudice from the absence 23 of the so-called "clarification." Instead, Petitioner seems to ask for a pre-ruling on 24 the exact same argument that Petitioner has already spelled out in his Reply under 25 Document 44, pages 3­4 and 21­22. In the absence of any sort of offered 26 justification or suggested prejudice from not knowing how this Court perceives the 27 procedural status of Ground V, Respondents respectfully urge this Court to deny 28 . . .
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1 the motion, decline the invitation to issue a piece-meal order, and simply rule on 2 the habeas petition in toto in due course. 3 Second, to the extent that this Court is inclined to "clarify" the procedural 4 status of Ground V, Respondents respectfully stand on their Answer at pages 8­9. 5 (Doc. 33.) Briefly, Petitioner explicitly sought the deletion of Ground V on the 6 second page of his Motion to Dismiss Unexhausted Claims under Document 31. 7 Additionally, Petitioner filed a previous motion under Document 28 to clarify for 8 this Court that even though the original habeas petition's Ground VI (alleging 9 ineffective assistance of counsel) became the amended habeas petition's Ground V 10 (alleging ineffective assistance of counsel), the amended petition "still reflects the 11 proper issues as being deleted and dismissed as well as the proper issues to be 12 preserved." (Doc. 28 at 1.) 13 It appears that Petitioner is now claiming that he did not really wish for this 14 Court to dismiss all of his amended petition's Ground V; instead, Petitioner argues 15 that he only sought to shed all of the non-exhausted sub-claims of ineffective 16 assistance of counsel from his original petition's Ground VI, and thus the amended 17 petition's Ground V only alleges the portion of his ineffective-assistance-of18 counsel claim that he allegedly exhausted in state court: that his counsel acted 19 ineffectively by not specifically seeking to excise the portion of Dr. Suchar's report 20 that contained one statement in the context of diagnosis that a drug must have been 21 slipped into the victim's bloodstream (as opposed to there being no blood in the 22 victim's bloodstream). 23 If this Court concludes that Petitioner has not sought the full dismissal of the First, 24 amended petition's Ground V, Respondents make two observations.

25 Petitioner has failed to meet his burden under Strickland v. Washington that his 26 counsel performed ineffectively, given that his trial counsel objected to the 27 admission of any of the victim's medical records, including the report of 28 Dr. Suchar. (Respondents' Answer, Exh. I at p. 20­33 (documenting defense
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Case 2:04-cv-00573-FJM

1 counsel's vigorous objection to the admission of the medical records); 2 Respondents' Answer, Exh. A at p. 7 (demonstrating the Arizona Court of Appeals' 3 recognition that "Defendant objected that the records [of the victim's hospital visit] 4 were hearsay and violated his right to confrontation because [the victim's] treating 5 physician was not available at trial").) 6 Second, Petitioner has failed to prove that his trial's outcome "would 7 reasonably likely have been different" under Strickland v. Washington if only the 8 jury's attention had been drawn to a statement that had never been discussed at 9 trial: that Dr. Suchar's conclusion that someone must have slipped something into 10 the victim's drink was not the doctor's expression of causality, but was only the 11 doctor's expression that a drug happened to be in the victim's bloodstream. 466 12 U.S. 668, 695­96 (1984). Respondents also respectfully apply their previously 13 explained arguments against Petitioner's Confrontation Clause claim (and the 14 explanation of how any perceived error was harmless) from Respondents' Answer 15 at Document 33, pages 18­23 in order to illustrate the absence of constitutional 16 prejudice under the clearly established law of Strickland v. Washington. See 466 17 U.S. at 695­96 (requiring a court presented with an ineffective-assistance claim to 18 "consider the totality of the evidence before the judge or jury" and establishing 19 that, "[t]aking the unaffected findings as a given, and taking due account of the 20 effect of the errors on the remaining findings, a court making the prejudice inquiry 21 must ask if the defendant has met the burden of showing that the decision reached 22 would reasonably likely have been different absent the errors"). 23 In sum, this Court should avoid a patchwork-quilt order that addresses some 24 portions of Petitioner's habeas petition and not others. Instead, this Court should 25 simply rule on the habeas petition in its entirety. To whatever extent that this Court 26 believes that Petitioner has preserved one sub-claim of ineffective assistance of 27 counsel in his amended petition's Ground V, this Court should deny the claim 28 . . .
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1 based on Petitioner's trial counsel's effective performance and the absence of 2 prejudice from trial counsel's conduct. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 7th day of November, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL S/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

1

CERTIFICATE OF SERVICE

2 I hereby certify that on November 7, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and deposited 3 for mailing the attached document and transmittal of a Notice of Electronic Filing to the following non-registered CM/ECF participant: 4 5 WILLIAM FLOYD SMITH #130587 A.S.P.C. ­ Florence/South Unit 3A2 6 P. O. Box 8400 Florence, AZ 85232 7 Petitioner Pro Se 8 9 10 11 s/AARON J. MOSKOWITZ

CRM96­0446 12 123022 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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