Free Other Notice - District Court of Arizona - Arizona

1 Jon M. Sands Federal Public Defender 2 Michael L. Burke (Arizona Bar No. 013173) Megan B. Moriarty (Missouri Bar No. 53226) 3 Assistant Federal Public Defenders 850 West Adams Street, Suite 201 4 Phoenix, Arizona 85007 [email protected] 5 [email protected] 602.382.2816 6 602.889.3960 facsimile 7 Counsel for Petitioner 8 9 10 11 12 13 14 15 16 Petitioner Robert Allen Poyson, through undersigned counsel, respectfully 17 submits this Notice of Supplemental Authority. On June 9, 2008, the Ninth Circuit 18 Court of Appeals, while recognizing that the holding announced in Cunningham v. 19 California, 127 S.Ct. 856 (2007), was a new procedural rule, found that the holding 20 in Cunningham was "dictated" by prior precedent for purposes of a Teague analysis. 21 Butler v. Curry, ___ F.3d ___, 2008 WL 2331440, *6 (9th Cir. June 9, 2008). 22 Specifically, the Ninth Circuit found that Cunningham was dictated by the Supreme 23 Court's holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. 24 Washington, 542 U.S. 296 (2004). 25 Under his Eighteenth Claim for Relief, Mr. Poyson claims that his sentencing 26 violated the Sixth Amendment because he was sentenced by a judge, and not a jury. 27 In Ring v. Arizona, the United States Supreme Court held that Arizona's death 28 sentencing scheme was unconstitutional. 536 U.S. 584 (2002). The Supreme Court vs. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, No. CIV-04-0534-PHX-NVW Notice of Supplemental Authority Death Penalty Case

Dora Schriro, et al., Respondents.

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1 concluded that, because Arizona law authorized the death penalty only if an 2 aggravating factor was present, Apprendi required the existence of such a factor to 3 be proved to a jury, rather than to a judge. Id. at 603-09. 4 Mr. Poyson raised this issue on direct appeal to the Arizona Supreme Court. 5 (AZSCT Doc. 15 at 36). The United States Supreme Court decided Apprendi on June 6 26, 2000. The Arizona Supreme Court denied Poyson's claim and affirmed his 7 conviction on July 6, 2000. State v. Poyson, 7 P.3d 79, 92 (Ariz. 2000). Accordingly, 8 Poyson submits that the Ninth Circuit's recent decision is Butler is relevant to his 9 Eighteenth Claim for Relief. 10 11 12 13 14 15 16 17 Respectfully submitted this 23rd day of June, 2008. Jon M. Sands Federal Public Defender Michael L. Burke Megan Moriarty s/ Michael L. Burke Counsel for Petitioner Certificate of Service I hereby certify that on June 23, 2008 I electronically transmitted the attached

18 document to the Clerk's Office Using the CM/ECF System for filing and transmittal 19 of a Notice of Electronic Filing to the following CM/ECF registrants: 20 J.D. Nielsen 21 Assistant Attorney General Attorney General's Office 22 s/ Nancy Rangel 23 Nancy Rangel Legal Secretary 24 Capital Habeas Unit 25 26 27 28 2

Case 2:04-cv-00534-NVW

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