Free Reply to Response to Motion - District Court of Arizona - Arizona

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Jon M. Sands Federal Public Defender Michael L. Burke Assistant Federal Public Defender 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] Arizona Bar No. 013173 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 Petitioner's Reply to Respondents' Response to Petitioner's Motion to Expand the Record Death Penalty Case

Petitioner Robert Allen Poyson hereby replies to Respondents' response to his motion to expand the record pursuant to rule 7 of the rules governing section 2254 cases. EXHIBIT 1 ­ DECLARATION OF CHRISTOPHER CUNNIFF, M.D.: Petitioner submits Exhibit 1 in support of Claims One, Five(B) and Six of his First Amended Petition. Respondents first argue that Exhibit 1 cannot be submitted in support of Claim One because that claim was not properly exhausted. See Response to Petitioner's First Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2254 Cases ("Response") at 6-7. Petitioner addressed Respondents' exhaustion argument in his Traverse, and respectfully directs the Court to that pleading for an explanation as to why Respondents are incorrect in their assertion that Claim One is not exhausted. See Petitioner's Traverse at 27-29. Respondents next make the remarkable assertion that Exhibit 1 "has no 1
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relevance" to Claim One. To the contrary, Dr. Cunniff's declaration is directly relevant to a critical aspect of Claim One ­ the effect Petitioner's Fetal Alcohol Spectrum Disorder ("FASD") had on the voluntariness of his confession. Relying on Colorado v. Connelly, 479 U.S. 157, 167 (1986), Respondents argue that, because Exhibit 1 does not address the issue of coercive police activity, it cannot be relevant. Respondents are plainly wrong. Evidence is relevant if it has the tendency to make "any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ariz. R. Evid. 401 (emphasis added). Dr. Cunniff's declaration is relevant to the fact of Petitioner's susceptibility to the coercive police conduct in this case. This Court must consider both the "characteristics of the accused" and the "details of the interrogation" as part of the "totality of all the surrounding circumstances" that courts should evaluate when determining whether a suspect's confession is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Harris v. South Carolina, 338 U.S. 68, 71 (1949). Dr. Cunniff's declaration goes to the characteristics of the accused, not the details of the interrogation. As such, it is a relevant piece of evidence. Respondents next argue that Exhibit 1 cannot support Claims Five(B) and Six because those claims were not properly exhausted in the state court. Petitioner thoroughly addressed the fallacy of this argument in his Traverse, and he respectfully directs the Court to that pleading for an explanation of why Claims Five(B) and Six are fully exhausted. See Petitioner's Traverse at 2-5, 42, and 45. Not content with the fact that Petitioner actually presented these claims to the state courts, nor with the fact that the state courts actually considered them, Respondents protest that the claims were not raised in a manner consistent with Arizona's procedural requirements. That determination, however, was one to be made by the Arizona courts themselves. The record indisputably demonstrates that the Arizona Supreme Court accepted Petitioner's presentation of these claims over the very waiver objections Respondents continue to assert before this Court. See Response at 8 n.5. Claims Five(B) and Six 2
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are fully exhausted. In the alternative, Respondents argue that Claims 5(B) and 6 are not exhausted because "Petitioner never raised any arguments in the state courts concerning [FASD] in connection with the claims" and because reference to FASD "fundamentally alters the nature of the claims." Response at 9. Respondents are incorrect. The law is clear that a habeas petitioner need not have proffered identical evidence in support of a claim in state court proceedings to exhaust the claim for federal habeas purposes. Picard v. Connor, 404 U.S. 270, 277-78 (1971) ("Obviously there are instances in which the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support. . . . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.") (internal citations and quotation marks omitted). Accord Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001) (Petitioner's new allegation that trial counsel's failure to discover relevant juvenile court transcript "does not change the substance" of Petitioner's claim; "instead, it merely supplies an additional piece of evidence that counsel would have found had he pursued self-defense or PTSD theories"); and Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (federal habeas claim properly exhausted even though district court evidentiary hearing revealed new factual information not previously presented to state court). Claims Five(B) and Six of the Amended Petition are not fundamentally different from the way in which they were presented in the state court. Respondents are therefore incorrect in arguing that these claims are unexhausted. EXHIBIT 2 ­ DECLARATION OF RUTH GARCIA: Petitioner submits Exhibit 2 in support of Claims One, Five(B) and Six. Respondents maintain, however, that Claims Five(B) and Six are not exhausted. They also argue that Exhibit 2 is not relevant to Claim One because it does not address the issue of coercive police activity. These arguments are identical to the ones raised in opposition to Exhibit 1. For the same reasons discussed above with regard to Exhibit 1, the Court should 3
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reject Respondents' arguments. Exhibit 2 is relevant to Claims One, Five(B) and Six, and each of those claims is fully exhausted. Respondents also attack Ruth Garcia's declaration as "obviously self-serving," and they maintain that Exhibit 2 is of "dubious evidentiary value" because Ms. Garcia does not "quantify the amount of alcohol she allegedly ingested." Response at 14. However, as remarkable as it may seem to Respondents, Ms. Garcia did not keep a tally of the precise amount of alcohol and drugs she consumed during her pregnancy with Bobby in 1976 in anticipation of relying on that information in future litigation concerning the death sentences that would later be imposed on her unborn child. Ms. Garcia remembers consuming "a lot" of alcohol during her pregnancy 30 years ago, and that is what she tells the Court in her declaration. Moreover, to suggest that it is somehow "self-serving" for a mother to admit that she ingested drugs and alcohol while pregnant reveals a disturbingly distorted view of human nature. Accepting responsibility for harming a child in utero is extraordinarily difficult. Respondents can rest assured that Ms. Garcia's admissions regarding her prior drug and alcohol use, and its devastating effects on her child's neurological development, were not easily made and were not in the least "self-serving." EXHIBITS 3
THROUGH

16: Respondents' arguments against admission of

Exhibits 3 through 16 again focus on whether Claims One, Five(B) and Six are exhausted and whether the proffered exhibits are "relevant" to Claim One because they do not address the question of coercive policy activity. See Response at 15-21. For the reasons previously stated in this Reply, Respondents' arguments are without merit. EXHIBITS 17 THROUGH 20: Petitioner relies on the arguments made in support of these exhibits in his Rule 7 Motion. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that the Court expand the record in this case to include the twenty exhibits submitted with this Rule 4
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7 motion. Respectfully submitted this 7th day of November, 2005. Jon M. Sands Federal Public Defender Michael L. Burke

s/ Michael L. Burke Counsel for Petitioner Certificate of Service 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 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: J.D. Nielsen Assistant Attorney General Attorney General's Office

s/ Jennifer A. Cody Jennifer A. Cody Senior Legal Secretary Capital Habeas Unit
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