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

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

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 for Discovery and Evidentiary Hearing Death Penalty Case

Petitioner Robert Allen Poyson hereby replies to Respondents' response to his motion for discovery and evidentiary hearing pursuant to 28 U.S.C. § 2254(e) and Rules 6 and 8 of the Rules Governing Section 2254 Cases in the United States District Courts. CLAIM ONE Respondents incorrectly argue that Claim One is not fully exhausted because evidence of Petitioner's Fetal Alcohol Spectrum Disorder ("FASD") was not presented to the trial court in connection with Petitioner's motion to suppress his involuntary confessions. See Response to Petitioner's Motion for Discovery and Evidentiary Hearing ("Response") at 10-11. As Petitioner thoroughly discussed in his Traverse, however, Claim One is fully exhausted. The additional evidence regarding Petitioner's FASD does not render the claim unexhausted. See Petitioner's Traverse at 27-30; see also Vasquez v. Hillery, 474 U.S. 254, 260 (1986); Picard v. 1
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 1 of 7

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

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). Respondents also erroneously maintain that 28 U.S.C. § 2254(e)(2) bars Petitioner from receiving an evidentiary hearing on Claim One because he "failed to develop the factual basis of the claim" in state court. Response at 12-13. To the contrary, Petitioner himself testified at the suppression hearing in this case that he had severe learning difficulties in school and that he attended special education classes, both factors which could affect the voluntariness of his confession. Transcript of Record ("TR") 11/24/97 at 4-6. The evidence Petitioner seeks to present at an evidentiary hearing in this proceeding is simply "more and stronger evidence" of facts that he already presented to the trial court. See Morris v. Dretke, 413 F.3d 484, 490, 498-99 (5th Cir. 2005). This Court therefore "retains full discretion to grant [Petitioner] an evidentiary hearing." Id. at 499. Finally, Respondents argue that the evidence Petitioner seeks to present at the requested evidentiary hearing "has no relevance" to Claim One because it is not directed to the issue of coercive police conduct. Response at 13-14; see Colorado v. Connelly, 479 U.S. 157, 167 (1986). Respondents are wrong. Evidence is relevant if it has the tendency to make "any fact that is of consequence to the determination 2
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 2 of 7

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

of the action more probable or less probable than it would be without the evidence." Ariz. R. Evid. 401 (emphasis added). The evidence Petitioner seeks to present at the evidentiary hearing is relevant to the fact of Petitioner's susceptibility to the coercive police conduct that occurred 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). The evidence Petitioner intends to present at the evidentiary hearing addresses the former inquiry, not the latter. Accordingly, it is relevant to Claim One. CLAIM FIVE Subclaims (A), (B) and (E) of Claim Five are not procedurally defaulted, as Respondents maintain. See Response at 15-16. Petitioner thoroughly addressed this issue in his Traverse, and he respectfully directs the Court to that pleading for an explanation of why Subclaims Five (A), (B) and (E) are fully exhausted. See Petitioner's Traverse at 2-5, 40, 42, and 44. Not content with the fact that Petitioner actually presented these subclaims to the state courts, nor with the fact that the state courts actually considered them, Respondents protest that the subclaims 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 15. Subclaims Five (A), (B) and (E) are fully exhausted. Respondents also incorrectly assert that Petitioner failed to develop the factual basis of Claim Five in state court. Specifically, they assert that Petitioner failed to provide the state court with any affidavits or declarations in support of Claim Five's various subclaims. See Response at 17. To the contrary, Petitioner attached as 3
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 3 of 7

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

Exhibit A to his petition for post-conviction relief a declaration (in letter form) from Larry Ratcliff, the investigator assigned to assist his post-conviction counsel. Mr. Ratcliff's statement recounts a May 9, 2002, interview with Billy Sipe, Jr., Petitioner's trial counsel. The declaration states that Mr. Sipe confirmed during the interview that, among other things, he did not (1) conduct a crime scene investigation, (2) request that any forensic analysis be performed, (3) request any pre-trial psychological evaluation, or (4) request that his investigator conduct an independent investigation. Despite this evidence of ineffective assistance of trial counsel, the state court refused to grant Petitioner an evidentiary hearing. Given these facts, Petitioner cannot be charged with failing to develop the record in state court. CLAIM SIX In their attempt to prevent Petitioner from obtaining an evidentiary hearing on Claim Six, Respondents once again argue that the claim is not exhausted. Petitioner addressed this erroneous assertion in his Traverse and, rather than restate the argument here, respectfully directs the Court to that pleading for a thorough discussion of the issue. See Petitioner's Traverse at 2-5, 45. Respondents are also wrong in arguing that Petitioner failed to develop the factual basis of Claim Six in state court. Rule 32.5 of the Arizona Rules of Criminal Procedure requires a defendant to set forth in his petition the grounds upon which he seeks relief and to attach to the petition "[a]ffidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition." In this case, Petitioner argued the substance of Claim Six at pages 15-16 and 23 of his state petition for post-conviction relief. Moreover, he attached as Exhibits C and D to the petition the ABA guidelines governing the representation of defendants in capital cases and the 15-page report of Dr. Robert Briggs, a neuropsychologist. Dr. Briggs' report stated that Petitioner's "decision-making, especially when compromised by alcohol, was not based on any consequence-driven thought process, but rather a learned behavior that bypassed right and wrong. When subjected to the abuse noted 4
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 4 of 7

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

by [Petitioner] and collateral sources, it is believed that the mindset was developed in which instinct took over and reason could not be accessed." PCR Docket No. 32, Exhibit D to Petitioner's Rule 32 Petition for Post-Conviction Relief at 14. Thus, Petitioner fully satisfied the requirements of Ariz. R. Crim. P. 32.5 and the state court erred in not affording him an evidentiary hearing on his claim of ineffective assistance of counsel for failure to investigate. Accordingly, Petitioner is entitled to an evidentiary hearing before this Court on Claim Six. CLAIM SEVEN For the reasons set forth in Petitioner's Traverse, Claim Seven is not procedurally defaulted. See Petitioner's Traverse at 2-5, 47-48. In addition, Respondents are incorrect in asserting that a claim of ineffective assistance of appellate counsel is "necessarily record-based and limited to the trial record." Response at 23. See, e.g., LeCroy v. Secretary, Fla. Dept. of Corrections, 421 F.3d 1237, 1257 (11th Cir. 2005) (noting that district court held evidentiary hearing on habeas petitioner's claim of ineffective assistance of appellate counsel); and Mapes v. Tate, 388 F.3d 187 (6th Cir. 2004) (same). CLAIM TWENTY-ONE Claim Twenty-One is brought pursuant to Lackey v. Texas, 514 U.S. 1045 (1995). Respondents argue that Petitioner cannot obtain relief on this claim because the United States Supreme Court has never held that an extended period of incarceration on death row constitutes cruel and unusual punishment. Response at 27. However, the recent case of Wilkinson v. Austin, ___ U.S. ___, 125 S.Ct. 2384 (2005), suggests that Petitioner may be entitled to relief on Claim Twenty-One. Wilkinson involved a challenge to Ohio's procedures for placing inmates into its state supermax prison. Although the Eighth Amendment issue was not directly before the Court, the Court did address whether placement in Ohio's supermax conditions, which appear to be almost identical to those on Arizona's death row, constitute an atypical and significant hardship for Ohio prisoners and as such, require procedural 5
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 5 of 7

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

due process protections. Even though prison officials are given a great amount of deference on matters of restrictive conditions of confinement, the Court unanimously found that Ohio's supermax conditions were unquestionably an "atypical and significant hardship" upon the prisoners. [W]e are satisfied that assignment to OSP imposes an atypical and significant hardship under any plausible baseline. .... For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Wilkinson, ___ U.S. ___, 125 S.Ct. at 2394-95. Unlike the petitioners in Wilkinson, however, prisoners on Arizona's death row need not commit any disciplinary violations before they are forced to undergo the solitary conditions of SMU II. See id. at 2395 ("OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners."). They are sent there by virtue of their death sentence, regardless of any determination that they are "high risk." Cf. id. at 2396 (outlining the procedural protections for Ohio inmates before and after placement into supermax). Further, unlike non-capital inmates, they have no ability to have their conditions improved based upon good behavior. It is the permanency of the placement, without sufficient justification, that makes the SMU II conditions even more egregious ­ and cruel ­ than the ones at issue in Wilkinson. CONCLUSION For the foregoing reasons, and for the reasons set forth in Petitioner's Motion 6
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 6 of 7

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

for Discovery and Evidentiary Hearing, Petitioner respectfully requests that the Court grant him an evidentiary hearing with regard to Claims One, Five, Six, Seven, and Twenty-One of his First Amended Petition, and leave to conduct discovery with regard to Claim Twenty-One. 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
I:\Burke\2_Open Cases\Poyson\reply_to_response_discovery.wpd

7
Case 2:04-cv-00534-NVW Document 52 Filed 11/07/2005 Page 7 of 7