Free Motion for Reconsideration - District Court of Arizona - Arizona

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Jon M. Sands Federal Public Defender Michael L. Burke (Arizona Bar No. 013173) Megan B. Moriarty (Missouri Bar No. 52988) Assistant Federal Public Defenders 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] [email protected] 602.382.2816 602.889.3960 facsimile Counsel for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, vs. Dora Schriro, et al., Respondents. No. CIV-04-0534-PHX-NVW Motion for Reconsideration Death Penalty Case (Oral Argument Requested)

Petitioner Robert Allen Poyson hereby requests that the Court reconsider its Order re: Motions for Record Expansion, Discovery, and an Evidentiary Hearing, filed on July 25, 2006. Dkt. 54. Specifically, Petitioner requests that the Court reconsider its rulings (1) that Claim 6 is procedurally barred, and (2) that Petitioner is not entitled to an evidentiary hearing on Claim 5B. Petitioner requests oral argument on the motion. This motion is supported by the attached memorandum of points and authorities. Respectfully submitted this 8th day of August, 2006. Jon M. Sands Federal Public Defender Michael L. Burke Megan B. Moriarty s/ Michael L. Burke Counsel for Petitioner
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1 2 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 s/ Jennifer A. Cody Jennifer A. Cody Senior Legal Secretary Capital Habeas Unit

Certificate of Service I hereby certify that on August 8, 2006, I electronically transmitted the attached document to the Clerk's Office Using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: J.D. Nielsen Assistant Attorney General Attorney General's Office

I:\Burke\2_Open Cases\Poyson\reconsideration_motion.wpd

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Jon M. Sands Federal Public Defender Michael L. Burke (Arizona Bar No. 013173) Megan B. Moriarty (Missouri Bar No. 52988) Assistant Federal Public Defenders 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] [email protected] 602.382.2816 602.889.3960 facsimile Counsel for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, vs. Dora Schriro, et al., Respondents. No. CIV-04-0534-PHX-NVW Memorandum in Support of Petitioner's Motion for Reconsideration Death Penalty Case (Oral Argument Requested)

For the reasons that follow, Petitioner respectfully requests that the Court reconsider those portions of its Order of July 25, 2006, addressing the following claims in his First Amended Habeas Corpus Petition: CLAIM 6: The Court's Order concludes that Claim 6 differs "fundamentally" from the form in which the claim was presented in state court. Order at 15. According to the Court, Petitioner "is alleging an entirely new theory of counsel ineffectiveness." It therefore concludes that Claim 6 was not "fairly presented" to the state court. Id. Petitioner respectfully submits that the Court is in error on this point. In his state post-conviction proceeding, Petitioner alleged that his trial counsel violated various provisions of the 1989 version of the American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 3
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("ABA Guidelines"). Specifically, he alleged that trial counsel violated, among other provisions, Guidelines 11.4.1, 11.8.3, and 11.8.6. Petitioner's Rule 32 Petition at 23. See also Exhibit C to Petitioner's Rule 32 Petition. These provisions of the ABA Guidelines address trial counsel's obligation to investigate all potential sources of mitigating evidence. The following are excerpts from the state court's order denying Petitioner's post-conviction petition: The Defendant's fourth claim for relief is that his trial attorney was ineffective for failing to properly present mitigation and psychological evidence at the sentencing hearing. This claim overlaps to some extent with the first claim, in which the Defendant asserted that his attorney did not request a mental health expert early enough. Part of this claim is based upon the argument that the trial attorney failed to follow certain ABA standards at sentencing. The Court previously addressed the applicability of ABA standards to the Strickland test and will not repeat those observations. PCR Docket No. 42, at 12-13 (emphasis added). The "observations" to which the Court referred were the following: Noncompliance with ABA standards does not render one ineffective any more than compliance with such standards necessarily makes one effective. Although the Court would give the ABA credit for being something more than a mere "social club", it has not been empowered by the courts to set standards defining whether acts done by defense attorneys constitute effective representation. Id. at 4. Because the state court believed that failure to comply with ABA Guidelines could not serve as a basis for alleging deficient performance, it denied this "part" of Petitioner's claim.1 PCR Docket No. 42, at 12-13. In other words, the state court rejected Petitioner's "failure to investigate" argument on the deficient performance prong of Strickland, not the prejudice prong. Id. The state court concluded ­ wrongly ­ that trial counsel was under no obligation to comply with the 1989 ABA The state court then proceeded to address Petitioner's other allegations of ineffective assistance of counsel at sentencing. PCR Docket No. 42, at 13. 4
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Guidelines. See id. at 4. Because it found no deficient performance in trial counsel's failure to investigate, it did not reach the prejudice prong of this part of Petitioner's claim. Contrary to the state court's reasoning, however, the United States Supreme Court in Wiggins v. Smith reiterated that it has long recognized the 1989 ABA Guidelines as "guides to determining what is reasonable." 539 U.S. 510, 524 (2003). In fact, Strickland itself refers to the ABA Guidelines as "[p]revailing norms of practice." 466 U.S. 668, 688 (1984). Expressly relying on the 1989 ABA Guidelines, the Supreme Court in Wiggins held that a trial attorney's failure to comply with these "well-defined norms" constituted deficient performance. Id. This is precisely the argument that Petitioner made in his state post-conviction petition. See Petitioner's Rule 32 Petition at 23. See also Exhibit C to Petitioner's Rule 32 Petition. The factual premise of the claim ­ trial counsel's failure to investigate mitigating evidence ­ has never changed. Claim 6 of Petitioner's First Amended Petition in this proceeding states: CLAIM SIX PETITIONER
RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE OF HIS TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

Dkt. 27 at 67. Five pages of the First Amended Petition are devoted to discussing Wiggins. Id. at 67-72. Then, on page 73 of the First Amended Petition, Petitioner applies Wiggins to his case, arguing: "The record establishes that defense counsel did not even begin to develop a case for mitigation until after the jury convicted Petitioner. The ABA Guidelines in effect in 1998, however, required defense counsel to begin their penalty phase investigation immediately upon appointment to the case." Id. (emphasis in original; footnote omitted). The First Amended Petition's discussion of Petitioner's fetal alcohol spectrum disorder ("FASD") is addressed solely to the prejudice prong of the Strickland claim. 5
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Petitioner is not arguing that trial counsel was ineffective solely for failing to investigate his prenatal exposure to alcohol. He is arguing ­ just as he argued in state court ­ that trial counsel was ineffective for failing to conduct a timely and adequate investigation of all relevant mitigating evidence. To demonstrate that Petitioner was prejudiced by his trial counsel's deficient performance, the First Amended Petition notes that an adequate investigation would have revealed that Petitioner suffers from FASD. The state court, however, elected not to address the prejudice prong of Petitioner's claim because it mistakenly believed Petitioner had failed to allege a colorable claim of deficient performance. Claim 6 is fully exhausted. In concluding otherwise, this Court misapplies Wiggins, Vasquez v. Hillery, 474 U.S. 254 (1986), and Picard v. Connor, 404 U.S. 270 (1971). Petitioner therefore respectfully requests that the Court reconsider its ruling that Claim 6 was not fairly presented to the state court and grant Petitioner evidentiary development on the claim. CLAIM 5-B: In Claim 5-B, Petitioner alleged that his trial counsel was constitutionally ineffective for failing to retain any experts to assist in developing appropriate defenses. In its Order, the Court finds Claim 5-B to be fully exhausted, but denies Petitioner both an evidentiary hearing and expansion of the record on the claim because it concludes that he did not act diligently in attempting to develop evidence in support of the claim in state court. Order at 12, 24-25. Petitioner respectfully submits that the Court's Order errs in its application of the diligence requirement established by Williams v. Taylor, 529 U.S. 420 (2000). As a result, the Court incorrectly concludes that Petitioner is not entitled to an evidentiary hearing or expansion of the record because the "factual basis for Petitioner's claim was not adequately proffered to the state court." Order at 25. As the Court acknowledges in its Order, Williams requires only that a petitioner make a reasonable effort to develop the factual basis for a claim. Order at 21. 6
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"Diligence," as it is defined in Williams, requires that a petitioner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. 529 U.S. at 437. In this case, Petitioner sought an evidentiary hearing in the precise manner dictated by Arizona state law. See Ariz. R. Crim. P. 32.5 and 32.8(a). He argued in state court that his trial counsel had been ineffective in failing to retain a mental health expert who could have assisted in developing appropriate defenses, including the defense that he lacked the requisite mens rea to be convicted of first-degree murder. In support of his request for an evidentiary hearing on this claim, Petitioner attached the report of Dr. Robert Briggs, who opined, among other things, that Petitioner had an impulsive personality.2 See Exhibit D to Petitioner's Rule 32 Petition at 8. The state court denied Petitioner an evidentiary hearing on this claim because it wrongly believed that a timely evaluation of Petitioner by a defense expert would not have been of any more assistance to trial counsel than the pre-trial Rule 11 reports addressing Petitioner's competency. PCR Docket No. 42, at 5-6. The state court's flawed reasoning does not justify this Court's decision to deny Petitioner an evidentiary hearing on Claim 5-B. First, a state court Rule 11 evaluation of a defendant's competency to stand trial, or his sanity at the time of the offense, is distinctly different from the more extensive evaluation necessary to adequately defend a capital defendant. No reasonable attorney would rely solely on a Rule 11 evaluation in investigating possible defenses in a capital case. Cf. Summerlin v. Schriro, 427 F.3d 623, 642 (9th Cir. 2005) (en banc) (discussing limited purpose of competency evaluations). Second, the state court's order denying Petitioner an evidentiary hearing mischaracterizes the results of Petitioner's Rule 11 evaluations. Contrary to Dr. Briggs' conclusion that Petitioner's decision-making "was not based on any As Petitioner notes in his First Amended Petition, impulsivity is a symptom of his FASD. Dkt. 27 at 5, 12, 20. 7
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consequence-driven thought process," Exhibit D to Petitioner's Rule 32 Petition at 14, the Rule 11 report prepared by Daniel Malatesta, Ed.D., concluded that Petitioner "was in full control of his action at the time he committed the three murders" and that he "planned his actions in a systematic way." Vasilios Kaperonis, M.D., opined merely that Petitioner "did have the capacity to distinguish between right and wrong and was legally sane at the time of the alleged offenses."3 Third, Dr. Briggs' report identifies evidence of "fetal-alcohol-related impairment." See Order at 25. Dr. Briggs, unlike Drs. Malatesta and Kaperonis, discussed Petitioner's in utero exposure to alcohol and drugs. See Exhibit D to Petitioner's Rule 32 Petition at 1 ("[Petitioner's mother] indicated that she had a sustained drug history which may have contributed to the medical conditions of her three youngest sons, which includes Mr. Poyson . . . . [W]hile pregnant with Mr. Poyson, she would take as much L.S.D. as was made available to her . . . . [S]he reported using marijuana on a daily basis . . . . [S]he admitted minor alcohol consumption while pregnant with Mr. Poyson . . . .") Dr. Briggs, unlike Drs. Malatesta and Kaperonis, also noted the effects that in utero exposure to drugs and alcohol may have had on Petitioner's development. See id. at 2 ("Mr. Poyson's mother reported that he was delayed in attaining his developmental milestones. She reported that he did not crawl well, and added that he took his first steps when he was 18 months old. She reported that he walked with a limp until he was 7 to 9 years of age. She further indicated that he was unable to speak until he was approximately 2 ½ years old. In addition, she reported that Mr. Poyson received special educational service for speech when he began school. In addition, she recalled that Mr. Poyson did have difficulty related to bedwetting, and added that he was difficult to toilet train. Moreover, Ms. Garcia reported that Mr. Poyson would `drop over', similar to her epilepsy, but without convulsions.") The complete reports of Drs. Kaperonis and Malatesta are filed, under seal, at Docket Number 35 of the Mohave County Superior Court record. 8
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The state court thus plainly erred in concluding that Dr. Briggs' findings were not "more favorable" to Petitioner than the findings of Drs. Malatesta and Kaperonis. Given that this was the state court's rationale for denying Petitioner an evidentiary hearing on the claim, the court contravened Ariz. R. Crim. P. 32.8 when it denied Petitioner the evidentiary hearing to which he was entitled. This Court nevertheless concludes in its Order that Petitioner did not adequately develop the factual basis for Claim 5-B in state court because he failed "to develop evidence of fetal-alcohol-related impairment through his neuropsychological expert." Order at 25. Petitioner respectfully submits that the Court misapplies the diligence requirement of Williams. Petitioner argued in his state post-conviction proceedings that his trial counsel was ineffective in failing to consult a psychological expert to assist in developing appropriate defenses. In support of this claim, he provided the report of a neuropsychologist who opined, among other things, that Petitioner was impulsive. See Exhibit D to Petitioner's Rule 32 Petition at 8 (noting that Petitioner is "quite impulsive"). The state court wrongly concluded that the neuropsychologist's report did not "yield[] results more favorable" to Petitioner than the reports of the psychiatrist and educational psychologist who performed pre-trial Rule 11 evaluations of Petitioner. For this reason, the state court denied Petitioner an evidentiary hearing. Petitioner has plainly satisfied the standard for diligence established by the Supreme Court in Williams. The "factual basis" for Claim 5-B is that trial counsel failed to retain a mental health expert to assist in the guilt phase of Petitioner's trial and that Petitioner was prejudiced by that failure. In his state post-conviction proceeding, Petitioner proffered the report of Dr. Briggs in support of the prejudice prong of his Strickland claim. But for the state court's erroneous conclusion that Dr. Briggs' report provided no more assistance to Petitioner than did the Rule 11 reports, an evidentiary hearing would have been mandated by Ariz. R. Crim. P 32.8. By 9
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concluding that Petitioner did not act diligently in state court, this Court wrongly equates "diligence" in attempting to develop a claim in state court with ultimate "success" on that claim. In doing so, it misapplies Williams. Finally, the proffered report of Dr. Christopher Cunniff does not alter the factual basis of Claim 5-B. The claim remains the same: Counsel's failure to retain a mental health expert for the guilt phase of Petitioner's trial constituted constitutionally ineffective assistance of counsel that prejudiced Petitioner. Dr. Cunniff's report merely provides further support for Petitioner's prejudice argument that a mental health expert, promptly retained, would have discovered evidence that probably would have changed the outcome of Petitioner's trial. Both Dr. Briggs and Dr. Cunniff confirm this fact. Variations between the reports of these two experts do not translate into a lack of diligence on Petitioner's part.4 Petitioner is entitled to an evidentiary hearing and expansion of the record on Claim 5-B. REQUEST FOR ORAL ARGUMENT Petitioner also requests that the Court grant him oral argument on this motion for reconsideration. Given the esoteric nature of the procedural default doctrine in habeas corpus proceedings, Petitioner believes that the Court would be aided by argument from the parties on this important issue. Respectfully submitted this 8th day of August, 2006. Jon M. Sands Federal Public Defender Michael L. Burke Megan B. Moriarty s/ Michael L. Burke Counsel for Petitioner Under Arizona law, Petitioner would have been precluded from calling a mental health expert at the guilt phase to testify that Petitioner suffered from "diminished capacity." See Clark v. Arizona, 127 S.Ct. 2709 (2006), and State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997). However, observational testimony regarding Petitioner's behavioral tendencies (such as impulsivity) would have been admissible at the guilt phase. See Mott, 187 Ariz. at 544, 931 P.2d at 1054. 10
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