Free Response - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 (FIRM STATE BAR NUMBER: 14000) 3 AARON J. MOSKOWITZ GENERAL ASSISTANT ATTORNEY CRIMINAL APPEALS SECTION 4 1275 WEST WASHINGTON STREET PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 5 E-MAIL: [email protected] (STATE BAR NUMBER: 022246) 6 ATTORNEYS FOR RESPONDENTS 7 8 9 10 11 12 13 14 15 16 Respondents, pursuant to Rules 5 and 11 of the Rules Governing § 2254

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

WILLIAM FLOYD SMITH
Petitioner,

CIV 04­573­PHX­FJM (MS)

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

ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

17 Cases, and this Court's orders of June 25, July 25, and August 2, 2005, 18 respectively, hereby answer the petition for writ of habeas corpus. For the reasons 19 set forth in the following memorandum of points and authorities, Respondents 20 respectfully request that the petition be denied and dismissed with prejudice. 21 22 23 24 25 26 27 28
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DATED this 11th day of August, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL s/AARON J. MOSKOWITZ AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS
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1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES

FACTUAL AND PROCEDURAL BACKGROUND. On August 11, 1994, the Maricopa County Grand Jury indicted Petitioner in

4 CR1994­92467 with one count of administering a dangerous drug called Halcion 5 on July 7, 1994 to a 15-year-old girl. (Exh. A at 1­3 and Exh. B.) The State also 6 alleged that Petitioner committed the crime as a historical prior felon, arising from 7 a conviction in a Texas trial court for indecency with a child. (Exh. A at 1, 9­11 8 and Exh. C and D.) 9 According to the presumptively correct findings of the Arizona Court of 10 Appeals,1 the evidence presented at trial reveals the following: 11 12 13 14 15 16 17 18 19 20 21 22 In May 1994, defendant hired R.T., 15, to work for him at his office. Shortly thereafter, defendant offered R.T. a pay increase to do housework at his home. However, R.T. testified that, while she was at his home, they would often just talk, or watch movies together. Defendant also purchased more than $400 worth of clothing for R.T. to wear at his office, even though she spent most of her time at defendant's house. On one occasion, defendant invited R.T. to sunbathe by the pool at his house. When R.T. replied that she had no swimsuit, defendant suggested that she wear her bra and underwear. Defendant complimented her body and told her not to be modest because he would not look at her. R.T. complied with defendant's suggestion. Around noon on July 7, 199[4], defendant picked up R.T. and drove her to his house. Defendant offered

23 ________________________ 24 See 28 U.S.C. § 2254(e)(1) (mandating that, "[i]n a proceeding instituted by an 25 application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court 26 shall be presumed to be correct. The applicant shall have the burden of rebutting 27 the presumption of correctness by clear and convincing evidence"); Buckley v. Terhune, 397 F.3d 1149, 1154­55 (9th Cir. 2005). 28
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her a drink of hot chocolate, which R.T. declined. She asked instead for sparkling apple cider. Defendant prepared the drink in his kitchen, outside of R.T.'s sight, and brought it to her in a coffee cup. R.T. drank the cider quickly, then consumed another cup which defendant provided. When R.T. rose from her seat, she felt dizzy. She asked defendant if the cider contained alcohol. Defendant replied that it did not, and he showed her the cider bottle. R.T. complained that she felt "really, really weird" and defendant told her to lie down. When R.T. sat up, because she wanted to watch a video, defendant pushed her head down and told her to "stop fighting it." She recalled nothing else that occurred until that night. R.T.'s mother called defendant around 5:00 p.m. to determine her daughter's whereabouts. After three or four minutes, he brought R.T. to the phone. R.T. sounded "spacy" and told her mother she had been sleeping. R.T.'s mother said she would pick her up but, before she could leave her house, defendant brought R.T. home. R.T. was able to walk but was still "spacy." Defendant claimed that R.T. had complained she was not feeling well, so he had advised her to lie down and rest. He said that he had spent the afternoon making telephone calls to clients. Later, R.T.'s mother took her to the hospital. Subsequently, a test of R.T.'s urine obtained there revealed the presence of Halcion, a dangerous drug under Arizona Revised Statutes Annotated ("A.R.S.") section 13­3401(6)(c)(lviii) (Supp. 1996). Halcion is a sedative with a very strong hypnotic property which can cause dizziness and light-headedness and can induce sleep. When placed in cider, Halcion fizzes briefly and then is nearly imperceptible. Police recovered an empty Halcion prescription bottle from defendant's kitchen. When interviewed by police, defendant admitted that he had poured cider for R.T., but claimed that he had done so within her view. He told police that R.T. had said she was feeling drowsy and that she had started to act "goofy." He had talked her into lying down and had repeatedly asked her if she wanted to see a doctor. Defendant denied giving R.T. Halcion. Although police
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did not ask, defendant volunteered: "But I never touched her. And if she says I did, she is lying like hell." When police told defendant that R.T. had made no such accusation, defendant replied: "Okay. Because if she did, she is lying." The State also introduced evidence that defendant had written letters to an acquaintance asking him to testify falsely in his defense. Defendant had suggested that the acquaintance testify that, when he visited defendant, R.T. approached him and asked if he knew where she could get drugs.

9 (Exh. A at 1­3.) On October 10, 1995, the jury found Petitioner guilty as charged. (Exh. A at 10 11 4; Exh. L at 110.) On December 21, 1995, a newly empanelled jury found that 12 Petitioner had a prior felony conviction arising from indecency with a child in 13 Texas. (Exh. A at 4, 9­11; Exh. O at 68­69.) On March 6, 1996, the trial court sentenced Petitioner to the presumptive 14 15 term (for a Class 2 felony with one historical prior felony conviction) of 9.25 16 years' imprisonment with presentence-incarceration credit of 264 days. (Exh. A at 17 4; Exh. P at 30­31.) Petitioner appealed the judgment to the Arizona Court of Appeals, advancing 18 19 four issues: · The trial court violated his right to due process by refusing to instruct the 20 21 22 23 24 25 26 27 28
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jury on a similar statute to the one with which he was charged and in rejecting his motion for judgment of acquittal on this ground; · The trial court violated his confrontation right by admitting the victim's treating physician's notes; · The trial court violated his right to due process and shifted the burden of proof to Petitioner by instructing the jury on reasonable doubt under State v. Portillo, 182 Ariz. 592, 596­97, 898 P.2d 970, 974­75 (1995); and

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· The trial court violated his right against double jeopardy by empanelling a new jury to resolve the trial on whether Petitioner had a prior historical felony conviction. (Exh. R and S.) Only the latter argument met success. In a Memorandum Decision, the Arizona Court of Appeals affirmed Petitioner's judgment of conviction but remanded for resentencing without the prior-conviction enhancement. (Exh. A at 9­11.) On remand, the trial court sentenced Petitioner on August 26, 1997 to the presumptive term of 5 years' imprisonment. (Exh. T.)2 On August 3, 1997, Petitioner filed a notice of post-conviction relief. (Exh. U.)3 After his attorney found no meritorious issues to raise, Petitioner filed a "Supplemental Petition to Post-Conviction Matter" in which the only issue that Petitioner raised concerned his attorney's effectiveness surrounding the attorney's failure to object to hearsay statements that were contained in the treating physician's report. (Exh. V and W.) The State filed its opposition. (Exh. X.) The trial court analyzed Petitioner's claim in over three pages of legal analysis and dismissed it for lack of merit. (Exh. Y.)

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Although Respondents continue to maintain that Petitioner's completion of his sentence for the conviction that his habeas petition collaterally attacks deprives this 22 Court of subject-matter jurisdiction to address the habeas petition, Respondents 23 gratefully acknowledge this Court's permission to file this answer after the Court rejected Respondents' motion to dismiss on this issue. (Doc. 24.) 24 In accordance with the prison mailbox rule, Respondents calculate the filing date of Petitioner's documents based on when he handed the documents to jail or prison 26 authorities for mailing, not the later date on which the court accepted the 27 documents as filed. See Houston v. Lack, 487 U.S. 266, 270­74 (1988); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003). 28 25
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Petitioner petitioned the Arizona Court of Appeals to review the trial court's post-conviction-relief denial in a document entitled, "Reply to State's Response to `Motion for Permission to File Late Petition for Review' and Supplement to Claim." (Exh. Z.) On February 11, 2004, the Arizona Court of Appeals denied review. (Exh. AA.) On March 11, 2004, Petitioner filed his original federal habeas petition in this Court. (Doc. 1.) In response to this Court's permission for

Petitioner to file a motion to dismiss certain unexhausted claims, Petitioner filed his first amended habeas petition on July 26, 2005. (Doc. 26-29.) II. TIMELINESS UNDER AEDPA. Respondents concede that Petitioner's federal habeas petition is timely. On April 24, 1996, the Anti-terrorism and Effective Death Penalty Act of 1996 became law and established a one-year statute of limitations in which a state prisoner could file a petition for a federal writ of habeas corpus. See Mayle v. Felix, ___ U.S. ___, 2005 WL 1469153, * 7 (2005); Pliler v. Ford, 542 U.S. 225, 124 S. Ct. 2441, 2445 (2004). Petitioner's filing of his original federal habeas petition on March 11, 2004 (Doc. 1) occurred after the AEDPA's effective date of April 24, 1996, and hence the AEDPA and its one-year statute of limitations governs this Court's review. See Juan H. v. Allen III, 408 F.3d 1262, 1270 (9th Cir. 2005) (observing that, "[b]ecause [the habeas petitioner] filed his habeas petition after April 24, 1996, the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) govern this case and pose special burdens"); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (noting that, because the federal habeas petitioner's petition was filed "after the AEDPA's effective date of April 24, 1996, the one-year statute of limitations applies" to the petitioner's petition) (citing Woodford v. Garceau, 538 U.S. 202, 207 (2003)). Except in certain cases that are not applicable here, the AEDPA's one-year statute of limitations begins to run on "the date on which the judgment became
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final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Pace v. DiGuglielmo, 125 S. Ct. 1807, 1813 n.6 (2005). The limitations period is statutorily tolled, however, during the time in which a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in the state courts. Section 2244(d)(2); Pace, 125 S. Ct. at 1809­10; Carey v. Saffold, 536 U.S. 214, 220­21 (2002). In this case, Petitioner's judgment and conviction became final on direct review after the 20-day period in which he could have, but did not, petition the Arizona Court of Appeals to review the trial court's sentencing on remand that took place on August 26, 1997: September 15, 1997. On this date, the AEDPA's statute of limitations began to run. Petitioner's September 30, 1997 filing of his notice of post-conviction relief (Exh. U) tolled the federal one-year statute of limitations on that day. See Isley v. Arizona Dept. of Corrections, 383 F.3d 1054, 1055­56 (9th Cir. 2004) (holding that, with the filing of the notice of post-conviction relief, "Arizona's mechanism for post-conviction relief is set in motion" and hence the notice is "sufficient to toll the AEDPA statute of limitations"). At this point in time, then, the gap between his conviction's September 15, 1997 finality and the September 30, 1997 filing of his notice of post-conviction relief meant that Petitioner consumed 15 days of the AEDPA's 1-year limitations period. Petitioner's statutory tolling ran all the way through his round of postconviction proceedings, concluding on February 11, 2004 when the Arizona Court ... ... ... ...
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of Appeals denied review of the trial court's post-conviction-relief dismissal. (Exh. AA.)4 From February 11, 2004, Petitioner had one year (minus the alreadyconsumed 15 days of the limitations period) to file his federal habeas petition. Petitioner filed his original federal habeas petition on March 11, 2004 (Doc. 1), and hence he complied with the 1-year statute of limitations. III. EXHAUSTION OF STATE REMEDIES. In Petitioner's original habeas petition, he pled eight grounds for the habeas writ. (Doc. 1.) In his first amended habeas petition, Petitioner raised five grounds: the first four of the amended petition's grounds track the original petition's first four grounds. (Doc. 28.) However, the amended petition's fifth and final claim (alleging ineffective assistance of counsel) presents a revised version of the original petition's sixth ground. (Doc. 28 at 9-9(a).) Nonetheless, Petitioner subsequently filed a Motion for Clarification in which Petitioner moved to delete the amended petition's fifth ground, explaining that "Hence GROUND VI [in the original habeas petition] became GROUND V in the Amended Petition but still reflects the proper issues as being deleted and dismissed as well as the proper issues to be preserved." (Doc. 28 at 1.)

Petitioner's motion to delete the amended petition's fifth ground is consistent with the motion that Petitioner filed on the same day ("Motion to Dismiss Unexhausted Claims") in which Petitioner formally moved to delete his original petition's ground six (alleging ineffective assistance of counsel on the same issue that appears in the amended petition's ground five). (Doc. 31.)

24 ________________________ 25 4 In post-conviction proceedings, Petitioner's failure to petition the Arizona 26 Supreme Court to review this Arizona Court of Appeals decision deprives him of 27 an additional 30 days' statutory tolling in which he could have, but did not, petition the state supreme court for review under Ariz. R. Crim. P. 32.9(c). 28
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As Respondents see it, Petitioner's first amended habeas petition should be read to allege only his first four grounds for the habeas writ. Unless otherwise noted, the remainder of Respondents' answer refers to Petitioner's amended habeas petition. Although Petitioner properly exhausted his first three grounds for the habeas writ, Petitioner's failure to properly exhaust what is now his final habeas claim­ Ground IV, in which Petitioner asserts a violation of the Federal Rules of Evidence­ prevents this Court from addressing that claim on its merits. See Dretke v. Haley, 541 U.S. 386, 388 (2004); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Before a state prisoner can advance his claims in a federal habeas petition, he must exhaust those claims in the state courts "by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Insyxiengmay v. Morgan, 403 F.3d 657, 667 (9th Cir. 2005). Exhaustion requires a prisoner to "fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Reese, 541 U.S. at 29 (internal quotation marks omitted). The Arizona Supreme Court has powers of discretionary review over all non-capital criminal appeals. See A.R.S. §§ 12­2102, 12­2103. Therefore, fair presentation of a federal claim in the Arizona court system requires presenting the state supreme court with the federal claim in a petition for review in the Arizona Supreme Court-- a remedy available to "any party" under Arizona Rule of Criminal Procedure 31.19. Although Respondents maintain that the Supreme Court's decision in Reese reaffirms that an Arizona state prisoner must petition the Arizona Supreme Court for review of any claims that will be raised in a federal habeas proceeding, Petitioner's failure to petition even the intermediate appellate court for review of any federal issue that surrounds Ground IV means that Petitioner has
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unquestionably failed to fairly present this claim through the State of Arizona's "established appellate review process" as articulated in Boerckel. See Castillo v. McFadden, 370 F.3d 882, 886 (9th Cir. 2004) (stating that "[w]e consider [the habeas petitioner's] briefing to the Arizona Court of Appeals to determine whether he fairly presented his federal due process claim to the Arizona courts") (footnote omitted); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (holding that, except for life-imprisonment and capital-punishment cases, discretionary review by the Arizona Supreme Court is "unavailable" within the Boerckel Court's interpretation of exhaustion). In Ground IV, Petitioner alleges that the trial court's admission of R.T.'s medical records that contained the treating physician's statement ("The urine drug screen . . . was positive for benzodiazepines, confirming suspicion that she [the victim] had indeed been slipped some sort of drug in the sparkling cider") violated the Federal Rules of Evidence. (Doc. 28 at 8­8(b).) Although the claim would fail on its merits because a state court is not bound by the Federal Rules of Evidence in the first place,5 Petitioner never presented this argument to the Arizona Court of Appeals. (Exh. R, S, and Z.) Petitioner's failure to fairly present his claim under Ground IV to the Arizona Court of Appeals renders Ground IV technically exhausted but procedurally defaulted. Arizona law does not provide for a second appeal on direct review, and the time for petitioning the trial court for post-conviction relief has

23 ________________________ 24 See Fed. R. Evid. 1101(a) (restricting the applicability of the Federal Rules of 25 Evidence to "actions, cases, and proceedings" in the federal courts); McGuire v. Estelle, 919 F.2d 578, 580 n.2 (9th Cir. 1990) (Kozinski, J., dissenting from the 26 order rejecting the suggestion for rehearing en banc) (faulting the panel for 27 apparently "giving the Federal Rules of Evidence a constitutional cast"), rev'd by 502 U.S. 62, 67­68 (1991). 28
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passed. Compare Ariz. R. Crim. P. 32.2(a)(1) (establishing that a claim that could have been raised on direct appeal or in a post-trial motion is precluded from relief in post-conviction-relief proceedings) with Rule 32.2(a)(3) (rendering postconviction relief unavailable for claims waived "in any previous collateral proceeding") and Rule 32.4(a) (establishing that a Rule 32 notice of postconviction relief "must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later"). Petitioner has neither alleged nor shown that Arizona's procedural rules for post-conviction proceedings and appellate practice are not "independent" of a determination of federal constitutional law or are not "adequate" in terms of their consistent enforcement and ability for a state prisoner to advance federal constitutional claims if he follows Arizona rules, statutes, and cases. Petitioner has similarly failed to allege or show "cause and prejudice" for his failure to fairly present Ground IV to the Arizona Court of Appeals, or otherwise allege an actualinnocence exception to excuse his procedural failure. In fact, Petitioner explicitly disclaims any reliance on cause and prejudice to overcome his procedural defaults, informing this Court in his motion for leave to amend that "it is not time feasible to enter into time consuming litigation seeking excuse for non-exhaustion of State remedies under Cause and Prejudice arguments." (Doc. 26 at 4.) Petitioner's failure to present Ground IV to the state appellate court and his inability to return to state court to do so produces a procedural default that prevents this Court from reaching the claims' alleged merits. See Haley, 541 U.S. at 388; Morrison v. Mahoney, 399 F.3d 1042, 1045 (9th Cir. 2005). ... ... ...
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IV.

ARGUMENT. Petitioner's remaining three claims­ Grounds I, II, and III­ fail on their

merits.

Ground I: Violation of the Fourteenth Amendment right to due process, 5 stemming from the trial court's refusal to instruct on a lesserincluded offense. 6 7 In his first ground, Petitioner claims that the trial court violated his 8 Fourteenth Amendment right to due process when it instructed the jury on the 9 charged Class 2 felony of knowingly "[a]dminister[ing] a dangerous drug to 10 another person" under A.R.S. § 13­3407(A)(5) but refused to instruct the jury (and 11 denied an Arizona Rule of Criminal Procedure 20 motion for directed verdict) on 12 what the defense counsel believed that the charges could support: the less-serious 13 Class 5 felony of unlawfully administering a narcotic drug by "knowingly 14 introduc[ing] or caus[ing] to be introduced into the body of another person, without 15 such other person's consent . . . a narcotic drug or dangerous drug" to a minor 16 under § 13­1205(A) and (C). (Doc. 28 at 5­5(b).) 17 The Arizona Court of Appeals denied the claim. The appellate court 18 explained that what Petitioner argued to the trial and appellate court­ that the 19 presence of the element of "consent" in the less-serious violation of § 13­1205 20 implied that an element in the more-serious and actually charged violation of 21 § 13­3407(A)(5) required the State to have affirmatively proven that Petitioner 22 acted without the victim's consent­ hinged on the faulty premise that Arizona law 23 inexorably requires construing an absence-of-consent element to be inherent in 24 order to constitutionally sustain a conviction for violating § 13­3407(A)(5). (Exh. 25 A at 4­7.) 26 First, the appellate court noted that the other subsections within the text of § 27 13­3407 contain no element of consent, reducing the persuasiveness of Petitioner's 28 argument. (Id.) Second, Petitioner's failure to allege some sort of conflict between
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the two statutes meant that "a criminal offense may be prosecuted under either statute where the facts are such that they fall within the prohibitions of both." (Exh. A at 6, quoting State v. Mussiah, 141 Ariz. 212, 214, 685 P.2d 1364, 1366 (App. 1984).) Third, one statute contains an element that is not found in the other statute: consent. (Exh. A at 6­7.) "Because this offense [under § 13­1205 on which Petitioner sought an instruction] contains an element [of consent] not present in A.R.S. section 13­3407(A)(5)[,]" the Arizona Court of Appeals observed, "it was not a lesser included offense. The trial court was not authorized to instruct the jury on a related offense which may have been supported by evidence at trial." (Exh. A at 6­7, citations omitted.) The Arizona Court of Appeals' decision did not constitute an incorrect interpretation of federal constitutional law­ let alone an objectively unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States" under § 2254(d)(1). The Arizona Court of Appeals' first two reasons rested solely on state-law grounds, vitiating the ability of Petitioner to obtain the federal writ on those fronts. See § 2245(a) (permitting the granting of the habeas writ "only" if the state prisoner is held in custody "in violation of the Constitution or laws or treaties of the United States"); Estelle v. McGuire, 502 U.S. 62, 67­68 (1991) (reemphasizing that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). As for the Arizona Court of Appeals' third reason for rejecting the claim­ that § 13­1205 may be similar or related to the charged violation of § 13­ 3407, but the former is not a lesser-included offense of the latter­ specifically comprises a state-law determination that falls outside of this Court's review on habeas. See Solis v. Garcia, 219 F.3d 922, 928­29 (9th Cir. 2000) (reaffirming that "the failure of a state court to instruct on a lesser offense [in a non-capital case]
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fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding") (brackets added by the Solis court); see also Lujan v. Tansy, 2 F.3d 1031, 1036­37 (10th Cir. 1993) (citing decisions of the Fifth, Sixth, and Eighth through Eleventh Circuit Courts of Appeals in agreeing with "a majority of those circuits addressing the issue" that "held that a petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesserincluded offense instruction even if in our view there was sufficient evidence to warrant the giving of an instruction on a lesser included offense") (internal quotation marks omitted). Moreover, the Supreme Court has flatly rejected the claim that habeas relief is warranted where a state court refuses to instruct the jury on a so-called "lesserrelated offense." Hopkins v. Reeves, 524 U.S. 88, 90­91, 96­98 (1998) (rejecting the proposition that Beck v. Alabama, 447 U.S. 625 (1980), "requires state trial courts to instruct juries on offenses that are not lesser included offenses of the charged crime under state law" and characterizing the creation of a lesser-relatedoffense requirement as "not only unprecedented, but also unworkable"). The Arizona Court of Appeals' state-law-based interpretation of the interplay between the two non-capital crimes falls outside the purview of a federal habeas court, whether attacked on lesser-included grounds or some sort of lesser-related doctrine. The Court must reject Petitioner's first ground for the habeas writ.

Ground II: Violation of the Fourteenth Amendment right to due process, stemming from the trial court's instruction on reasonable doubt as mandated by the Arizona Supreme Court in State v. Portillo. 23 22 24 In his second claim, Petitioner argues that the trial court's instruction on 25 reasonable doubt, as mandated by the Arizona Supreme Court in State v. Portillo, 26 182 Ariz. 592, 596­97, 898 P.2d 970, 974­75 (1995), violated his Fourteenth 27 Amendment right to due process. (Doc. 28 at 6­6a.) 28
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Over Petitioner's counsel's objection, the trial court followed the Arizona Supreme Court's direction in Portillo and instructed the jury in accord with that binding opinion. (Compare Exh. L at 3­9, 102­03 with Portillo, 182 Ariz. at 596­97, 898 P.2d at 974­75.) Additionally, the trial court elected sua sponte to precede the Portillo instruction with two sentences from the pre­Portillo reasonable-doubt instruction that appeared in RAJI 5: "The law does not require a defendant to prove innocence. Every defendant is presumed by law to be

innocent." (Exh. L at 102­03.) Moreover, later in the instructions, the trial court instructed the jury that "The State must prove all of it[s] case against the Defendant with its own evidence." (Id. at 104.) Even without the trial court's voluntary addition of pre-Portillo language on reasonable doubt, the Arizona Court of Appeals' rejection of his claim that the Portillo instruction violated due process did not result in a decision that was contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States[.]" Section 2254(d)(1). As an initial matter, the United States Supreme Court has never held that the language contained in the Portillo instruction of "firmly convinced" or "real possibility"­ mirroring the Federal Judicial Center's Pattern Criminal Jury Instruction 21­ unconstitutionally lowers the required burden of proof in criminal cases. For this reason alone, Petitioner has failed to prove entitlement to the habeas writ because § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of this [Supreme] Court's decisions as of the time of the relevant state-court decision." Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 2147 (2004) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). The United States Supreme Court recently reaffirmed that "[i]t has been settled throughout our history that the Constitution protects every criminal defendant `against conviction except upon proof beyond a reasonable doubt of
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every fact necessary to constitute the crime with which he is charged.'" United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 748 (2005) (per Stevens, J.) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Specifically, the Supreme Court articulated the "clearly established Federal law" that governs Petitioner's Portillo claim in Victor v. Nebraska, 511 U.S. 1 (1994), where the Court stressed that the federal courts do not exercise supervisory powers over the state courts, and hence a state trial court's obligation is simply to correctly convey the concept of reasonable doubt to the jury: The Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. Victor, 511 U.S. at 5 (citations and alterations omitted). Furthermore, the Supreme Court cited Victor v. Nebraska in support of what it called the "proper inquiry": "The Constitutional question in the present cases . . . is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [constitutional] standard." Tyler v. Cain, 533 U.S. 656, 659 n.1 (2001) (ellipses and brackets added by the Tyler Court). In her Victor concurrence, Justice Ginsburg lauded the Federal Judicial Center's proposed jury instruction­ the same jury instruction that the Portillo court directed the Arizona state courts to apply, and the same jury instruction that the trial court employed in Petitioner's trial­ as "clear, straightforward, and

accurate." Victor, 511 U.S. at 26 (Ginsburg, J., concurring). Justice Ginsburg's
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uncontested description of this jury instruction belies any notion that the trial court's identical instruction somehow violated Petitioner's right to due process: This instruction plainly informs the jurors that the prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The `firmly convinced' standard for conviction, repeated for emphasis, is further enhanced by the juxtaposed prescription that the jury must acquit if there is a `real possibility' that the defendant is innocent. This model instruction surpasses others I have seen in stating the reasonable doubt standard succinctly and comprehensively. In the words of the Ninth Circuit, "[t]he phrases `firmly convinced' and

11 511 U.S. at 27 (Ginsburg, J., concurring).6 12 13 `hesitate to act' are essentially two ways of conveying the same definition of 14 reasonable doubt. Considering the instruction given as a whole, the use of the 15 `firmly convinced' language did not indicate to the jury that the prosecutor had a 16 ________________________ 17 6 That this portion of Justice Ginsburg's concurrence drew no response from any of 18 the other eight Justices further belies the notion that the Arizona Court of Appeals' 19 affirmance of the trial court's Portillo-based jury instruction amounted to not merely an incorrect application of federal law, but an "objectively unreasonable" 20 application of clearly established Supreme Court law under § 2254(d)(1) that 21 would justify granting the habeas writ. See generally Brown v. Payton, ___ U.S. ___, 125 S. Ct. 1432, 1438­39 (2005); Clark v. Murphy, 331 F.3d 1062, 1071­72 22 (9th Cir. 2003) (upholding the District of Arizona's habeas denial but emphasizing 23 that the panel expressed no "independent" opinion on the constitutional claim's merit because "[u]nder AEDPA, the only question we are asked to decide is 24 whether the state court's determination to the contrary was objectively 25 unreasonable and it was surely not. Were we to disagree with the Arizona court's adjudication of the claim, the principles of comity and respect for the Arizona 26 court's status as a co-equal adjudicator of constitutional issues that AEDPA reflects 27 would require us to defer to its reasonable adjudication of the merits of the . . . claim"). 28
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lesser burden than that implied by the use of the term `reasonable doubt' standing alone." United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992). Other federal circuits that have spoken on this issue agree. See, e.g., United States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (observing that "none" of the federal circuits have found that the Federal Judicial Center's instruction constitutes "reversible error" and announcing that "[w]e agree with the Ninth Circuit" in Velasquez); State v. Putz, 266 Neb. 37, 43­44, 662 N.W.2d 606, 611­12 (2003) (citing decisions of the First, Fourth, Fifth, Eighth, Ninth, Tenth, and D.C. Circuits in recognizing that "Federal courts have consistently rejected the claim that the `real possibility' language, criticized by [the defendant in this case], constitutes reversible error. . . . Similarly courts have almost unanimously rejected the claim that the `firmly convicted' language, challenged by [the defendant in this case] at trial and on appeal, is reversible error"); R. Jason Richards, Reasonable Doubt: An Overview and Examination of Jury Instructions in Colorado, 33­Aug. Colorado Lawyer 85, 88 (2004) (noting that the Federal Judicial Center's instruction "has been approved (either verbatim or in its substantial form) by eight circuit courts . . . and a dozen state courts . . .") (footnotes omitted). The Arizona Court of Appeals' affirmance of the trial court's decision to instruct the jury per the Arizona Supreme Court's Portillo opinion did not constitute an unreasonable application of clearly established Supreme Court law. The Court should dismiss this claim.

23 Ground III: Violation of the Sixth Amendment right to confrontation of witnesses, stemming from the introduction of the victim's 24 treating physician's hearsay. 25 In his third and final fairly presented claim, Petitioner argues that the trial 26 court violated his Confrontation Clause rights under the Sixth Amendment when 27 the trial court admitted the victim's medical records into evidence, given that those 28
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records contained the treating physician's post-urinalysis remarks that (as reported in the Arizona Court of Appeals' memorandum decision under the attached Exhibit A at page 8) "The urine drug screen . . . was positive for benzodiazepines, confirming suspicion that she [the victim] had indeed been slipped some sort of drug in the sparkling cider." (Doc. 28 at 7­7(b).) The Arizona Court of Appeals rejected Petitioner's Confrontation Clause argument on the ground that the physician's statement fell within the firmly rooted exceptions to the hearsay rule for statements of medical diagnosis or treatment as well as business records: We also find no violation of defendant's right to confrontation. Evidence does not violate the confrontation guarantee of the state or federal constitutions if admitted under a firmly rooted exception to the hearsay rule. State v. Hamilton, 177 Ariz. 403, 409, 868 P.2d 986, 992 (App. 1993). The exceptions for business records and for statements made for medical diagnosis or treatment are firmly rooted exceptions. White v. Illinois, 502 U.S. 346, 355­56 n.8 (1992) (statements for medical treatment); State v. Petzoldt, 172 Ariz. 272, 276, 836 P.2d 982, 986 (App. 1991) (business records).

19 (Exh. A at 9.) 20 The Arizona Court of Appeals' rejection of Petitioner's Confrontation Clause 21 claim entailed no objectively unreasonable application of Supreme Court law for 22 several reasons.7 First, a hospital's records constitute business records, and hence 23 ________________________ 24 Irrespective of the applicability of Crawford v. Washington, 541 U.S. 36 (2004), 25 as interpreted by the panel majority (on differing grounds) in Bockting v. Bayer, 399 F.3d 1010, 1014­21 (9th Cir. 2005), opinion amended on denial of rehearing 26 in 408 F.3d 1127 (9th Cir. 2005) (order), the treating physician's statement was not 27 offered with "an eye toward trial" at the time that the physician diagnosed the victim and hence the statement's non-testimonial character falls outside of the 28 (continued ...)
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fall within a firmly rooted exception that carries "sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause" as articulated in White v. Illinois, 502 U.S. at 356 n.8. See Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir. 1990) (observing that hospital records are "themselves independently admissible under the business records exception, a `firmly rooted' exception to the hearsay rule" and holding that "hospital records containing statements of medical opinions constitute a `firmly rooted exception' to the hearsay rule, and thus would pass Confrontation Clause scrutiny") (footnote omitted);8 United States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987) (recognizing the "traditional indicia of reliability that these [hospital] records bear . . ."); United States v. Bernard S., 795 F.2d 749, 755 n.8 (9th Cir. 1986) (noting that a potential challenge to the reliability of hospital and medical records would "probably be unavailing; the [Supreme] Court has expressly noted that business records are among those `certain hearsay exceptions [that] rest upon such solid foundations that admission of virtually any evidence within them comports' with the reliability prong") (quoting Ohio v. Roberts, 448 U.S. 56, 66 and n.8 (1980)).
________________________ ( ... continued)

18 Crawford decision. See Crawford at 56 n.7, 68­69 (stating that a State's hearsay 19 rules may exclude nontestimonial statements "from Confrontation Clause scrutiny altogether" and that, "[w]hatever else the term ["testimonial"] covers, it applies at 20 a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a 21 former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed"). 22 23 24 25 26 27 28 In the omitted footnote, the First Circuit noted that "current practice, approved by McCormick, Wigmore, Weinstein and leading commentators, is to admit such evidence. Weinstein states: Rule 803(6) in accord with the trend of state decisions and the conclusion of leading legal authorities rejects any attempt to exclude a particular class of hospital records. Diagnoses and opinions, without restriction to routine vis-a-vis conjectural, or physical as against psychiatric, are included as proper subjects of admissible entries in addition to acts, events and conditions." Manocchio, 919 F.2d at 781 n.17.
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Second, any imagined Confrontation Clause error in no way produced a "substantial and injurious effect or influence in determining the jury's verdict." Morales v. Woodford, 388 F.3d 1159, 1180 (9th Cir. 2004) (declining to decide whether the admission of testimony "violated the Confrontation Clause, because, even assuming that it did, that error would be harmless. Under Brecht[ v.

Abrahamson, 507 U.S. 619, 638 (1993)] the writ [of habeas corpus] cannot be granted for constitutional trial error where, as here, the erroneously admitted testimony did not have a `substantial and injurious effect or influence in determining the jury's verdict'") (footnote omitted). The jury never heard a

witness report the treating physician's statement, as it was contained in the papers of the medical records alone. Moreover, Petitioner has presented no evidence to show that this jury would be so influenced by this statement as to lead to a guilty verdict. Read in context, the thrust of the doctor's comment referred only to the fact that the victim's urinalysis revealed that benzodiazepines showed up in her urine, not that the doctor ever undertook an investigation to figure out how the drug reached the victim's urine. As the trial court explained in rejecting Petitioner's similar claim on post-conviction review (framed in the context of accusing his trial counsel of not objecting to the specific admission of the treating physician's statement), "the other evidence substantially and overwhelmingly supported a finding that the Petitioner administered a dangerous drug": (6) At trial, the evidence included: (a) R.T.'s statement that Petitioner prepared the apple cider drink in his kitchen. (b) R.T.'s statement that she drank the apple cider Petitioner gave her and that she began to feel dizzy.

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(c) R.T.'s statement that after she tried to sit up, Petitioner told her to "stop fighting it." (d) R.T.'s statement that thereafter she recalled nothing else that happened at Petitioner's residence. (e) Petitioner's statement to R.T.'s mother that R.T. had not felt so well so she laid down and rested during the afternoon at Petitioner's residence. (f) Medical evidence that the drug halcion found in R.T.'s urine was a sedative with a strong hypnotic property which can induce sleep and cause dizziness and lightheadedness. (g) Police testimony that they found an empty halcion prescription bottle in Petitioner's kitchen. (h) Petitioner's statement to the police that: (i) he had poured cider for R.T. at his residence but within her view; (ii) that R.T. was feeling drowsy and began to act "goofy"; (iii) Petitioner told R.T. to lie down; (iv) Petitioner denied giving R.T. halcion; and (v) Without being asked, Petitioner volunteered a denial of touching R.T. (i) Petitioner's written letter statement asking an acquaintance to testify falsely that R.T. had approached and asked where she could get drugs. (7) The Court finds that despite a partial statement by the treating physician who lacked knowledge as to method of ingestion, the other evidence substantially and overwhelmingly supported a finding that the Petitioner administered a dangerous drug. Assuming that such partial statement would have been excluded upon objection, there is no reasonable likelihood that the resulting conviction from the trial would have been
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different. The other evidence included Petitioner's own statements that he provided the apple cider to R.T., that she then became drowsy and laid down but that he did not give R.T. halcion. The evidentiary sequence and consequences to R.T. supported administering the dangerous drug by Petitioner. (Exh. Y at 2­4.) Finally, Petitioner's claim hinges on the faulty premise that, because the credibility of each side happened to be at stake in the trial, the two sides were necessarily left in equipoise. Not so. Not only was the jury perfectly entitled to assess the two sides' credibility and ultimately believe the testimony of the victim, but this jury heard the uncontested testimony that Petitioner wrote some letters to a friend in which Petitioner urged the friend to lie at trial by claiming that the victim approached this friend and asked this friend for drugs. On this record, the

statement of the treating physician did not substantially and injuriously influence the jury's verdict. V. CONCLUSION. Based on the foregoing authorities and arguments, Respondents respectfully request that the petition for writ of habeas corpus be denied and dismissed with prejudice.

RESPECTFULLY SUBMITTED this 11th day of August, 2005.
TERRY GODDARD ATTORNEY GENERAL S/AARON J. MOSKOWITZ AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION ATTORNEYS FOR RESPONDENTS

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1 I hereby certify that on this 11th day of August, 2005, I electronically transmitted 2 the attached document to the Clerk's Office using the CM/ECF System for filing and I served the attached document by mail on the following, who are not 3 registered participants of the CM/ECF System: 4 WILLIAM FLOYD SMITH #130587 5 A.S.P.C. ­ Florence/South Unit 3A2 6 P. O. Box 8400 Florence, AZ 85232 7 8 Petitioner Pro Se 9 10 11 12 13 CRM96­0446 121829 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/M. Henderson M. HENDERSON

1 2

LIST OF EXHIBITS

3 Exhibit A. Memorandum Decision of the Arizona Court of Appeals, filed June 5, 1997. 4 5 Exhibit B. Indictment, filed Aug. 11, 1994. 6 Exhibit C. 7 State's Allegation of Historical Priors, filed Sept. 21, 1994.

Exhibit D. State's Notice of Intent to Use Defendant's Other Crimes, Wrongs or 8 Acts Pursuant to Rule 404(b), Arizona Rules of Evidence, filed Sept. 21, 1994. 9 10 Exhibit E. 11 12 13 Exhibit G. Reporter's Transcript of Proceedings, dated Sept. 25, 1995. 14 Exhibit H. Reporter's Transcript of Proceedings, dated Oct. 2, 1995. 15 Exhibit I. Reporter's Transcript of Proceedings, dated Oct. 3, 1995. 16 17 Exhibit J. Reporter's Transcript of Proceedings, dated Oct. 4, 1995. 18 Exhibit K. Reporter's Transcript of Proceedings, dated Oct. 5, 1995. 19 Exhibit L. Reporter's Transcript of Proceedings, dated Oct. 10, 1995. 20 21 Exhibit M. Reporter's Transcript of Proceedings, dated Oct. 12, 1995. 22 Exhibit N. Reporter's Transcript of Proceedings, dated Dec. 20, 1995. 23 Exhibit O. Reporter's Transcript of Proceedings, dated Dec. 21, 1995. 24 25 Exhibit P. Reporter's Transcript of Proceedings, dated Mar. 6, 1996. 26 Exhibit Q. Appellee's Answering Brief, filed Jan. 16, 1997. 27 Exhibit R. Appellant's Opening Brief, dated Nov. 27, 1996. 28
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Reporter's Transcript of Proceedings, dated Nov. 22, 1994. Reporter's Transcript of Proceedings, dated Apr. 18, 1995.

Exhibit F.

1 Exhibit S. Appellant's Reply Brief, dated Jan. 30, 1997. 2 Exhibit T. Sentence of Imprisonment, dated Aug. 26, 1997. 3 4 Exhibit U. Notice of Post-Conviction Relief, filed per the prison mailbox rule Sept. 30, 1997, filed per the Maricopa County Superior Court Aug. 4, 5 1997 (attached behind Notice of Filing Notice of Post-Conviction Relief, filed Aug. 8, 1997). 6 7 Exhibit V. Notice of Completion of Post-Conviction Counsel[, etc. . .], filed Oct. 10, 1997. 8 Review by

9 Exhibit W. Supplemental Petition to Post-Conviction Matter, filed per the prison mailbox rule Mar. 20, 1998, filed per the Maricopa County Superior 10 Court Mar. 26, 1998. 11 12 Exhibit X. Motion to Allow Late Filing of State's Response to Petition for PostConviction Relief, filed concurrently with Response to Petition for 13 Post-Conviction Relief, filed July 10, 1998. 14 Exhibit Y. Minute Entry of the Maricopa County Superior Court, dated July 6, 15 2001, filed July 9, 2001. 16 Exhibit Z. Reply to State's Response to "Motion for Permission to File Late 17 Petition for Review" and Supplement to Claim, filed per prison mailbox rule Sept. 3, 2002. 18 19 Exhibit AA. Order of the Arizona Court of Appeals, filed Feb. 11, 2004. 20 21 22 23 24 25 26 27 28
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