Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) J. D. NIELSEN ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 [email protected] (STATE BAR NUMBER 007715) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ROBERT ALLEN POYSON, Petitioner, -vsDORA B. SCHRIRO, et al., Respondents. RESPONSE TO PETITIONER'S MOTION FOR DISCOVERY AND EVIDENTIARY HEARING CIV 04-0534-PHX-NVW [Death Penalty Case]

Respondents respectfully request the Court to deny Petitioner's Motion for Discovery and Evidentiary Hearing. Petitioner is not entitled to his requested

19 discovery, because he has failed to establish good cause. Additionally, Petitioner 20 is not entitled to an evidentiary hearing on any of his claims, because either: (1) 21 the underlying habeas claim or legal argument is procedurally defaulted, or is not 22 23 otherwise subject to federal habeas relief; or (2) Petitioner failed to develop the 24 new information during his state court proceedings, and has subsequently failed to 25 meet the requirements of 28 U.S.C. § 2254(e)(2). 26 27 28
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th 1 DATED this 17 day of October, 2005.

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RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/ J. D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

MEMORANDUM OF POINTS AND AUTHORITIES LEGAL BACKGROUND. A. DISCOVERY. Federal habeas corpus was not designed to be a fishing expedition for habeas

13 petitioners to "explore their case in search of its existence." Rich v. Calderon, 187 14 F.3d 1064, 1067 (9th Cir. 1999) (quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 15 1102, 1106 (9th Cir. 1996) and Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). 16 17 Thus, a habeas petitioner, unlike a traditional civil litigant, has no presumptive 18 entitlement to discovery. Bracey v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. 19 Woodford, 331 F.3d 715, 728 (9th Cir. 2003). Instead, discovery is only available 20 21 to federal habeas petitioners "if, and to the extent that, the judge in the exercise of 22 his discretion and for good cause shown grants leave to do so, but not otherwise." 23 Rule 6(a), Rules Governing § 2254 Cases (emphasis added). 24 25 In determining whether a request for discovery should be granted, a habeas

26 court must first determine whether the underlying claim is subject to federal habeas 27 relief, or is otherwise properly before the court. See, e.g., 28 U.S.C. § 2254(a) 28
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1 (habeas relief limited to violations of the United States Constitution, or the laws or 2 treaties of the United States); 28 U.S.C. § 2254(b)(1) (exhaustion requirement). If 3 4 the underlying claim is cognizable and properly before the court, the court then 5 decides whether "good cause" supports the discovery request, by: (1) identifying 6 the "essential elements" of the underlying claim; and (2) then determining whether 7 8 "`specific allegations before the court show reason to believe that the petitioner 9 may, if the facts are fully developed, be able to demonstrate that he is . . . entitled 10 to relief.'" Bracey, 520 U.S. at 908­09 (quoting Harris v. Nelson, 394 U.S. 286, 11 12 300 (1969)). However, in conducting this analysis, a federal habeas court must 13 keep in mind that whether a state court's decision was unreasonable for purposes 14 of 28 U.S.C. 2254(d) must be determined "in light of the record the [state] court 15 16 had before it." Holland v. Jackson, 124 S.Ct. 2736, 2737­38 (2004). 17 18 19 B. EVIDENTIARY HEARING. Rule 8, Rules Governing § 2254 Cases, provides that a federal habeas court

20 must determine whether an evidentiary hearing is required. However, the court's 21 discretion is significantly limited by the Antiterrorism and Effective Death Penalty 22 23 Act of 1996 ("the AEDPA"), 28 U.S.C. § 2254. The AEDPA provides: 24 25 26 27 28 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-- (A) the claim relies on-- (i) a new rule of constitutional law, made retroactive to
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cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

7 28 U.S.C. § 2254(e)(2) (emphasis added). Thus, if the failure to develop a claim's 8 factual basis is due to a "lack of diligence, or some greater fault, attributable to the 9 10 prisoner or the prisoner's counsel," a court is prohibited from conducting an 11 evidentiary hearing unless the prisoner meets the conditions of § 2254(e)(2). 12 Holland, 124 S.Ct. at 2738; Williams v. Taylor, 529 U.S. 362, 429, 432 (2000). 13 14 This rule serves AEDPA's goal of furthering comity because "federal courts sitting 15 in habeas are not an alternative forum for trying facts and issues which a prisoner 16 made insufficient effort to pursue in state proceedings." Williams, 529 U.S. at 435. 17 18 Pursuant to § 2254(e)(2), when the factual basis for a particular claim

19 properly before the habeas court has not been fully developed in state court, the 20 first question for the court in evaluating whether to grant an evidentiary hearing on 21 22 the claim is whether the petitioner was diligent in attempting to develop the claim's 23 factual basis. Williams, 529 U.S. at 432­33 (approving Baja v. Ducharme, 187 24 F.3d 1075, 1078 (9th Cir. 1999) and other federal circuit court opinions). The 25 26 Supreme Court has set an objective standard for analyzing this initial "diligence" 27 threshold--whether a prisoner "made a reasonable attempt, in light of the 28
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1 information available at the time, to investigate and pursue claims in state court." 2 Williams, 529 U.S. at 435. For example, when there is information in the record 3 4 that would alert a reasonable attorney to the existence and importance of certain 5 evidence, the attorney "fails" to develop the factual record if he does not make 6 reasonable efforts to sufficiently investigate and present the evidence to the state 7 8 court. See, e.g., Williams, 529 U.S. at 438­40 (counsel did not act diligently 9 because he was on notice of potentially material evidence and conducted only a 10 cursory investigation). See also McNair v. Campbell, 416 F.3d 1291, 1298­99 11
th 12 (11 Cir. 2005) (prisoner failed to diligently develop the basis for his claim that his

13 attorney was ineffective for failing to offer mitigation evidence regarding his drug 14 addiction, despite the fact that the state court denied both his motion for the 15 16 appointment of an expert witness, and his motion for visitation by an expert; the 17 prisoner could have testified himself, or had family members testify, concerning 18 his drug abuse, and he could have presented evidence of the effects of drug 19 20 addiction through treatises or other literature); Alley v. Bell, 307 F.3d 380, 390­91 21 (6th Cir. 2002) (lack of diligence because prisoner knew of and raised claims of 22 judicial bias and jury irregularities in state court, but failed to investigate all the 23 24 factual grounds for such claims). 25 26 27 requires that the prisoner (and his collateral review counsel) comply with all state 28 procedural requirements necessary to obtain an evidentiary hearing in state court:
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The Supreme Court has made it clear that this initial "diligence" hurdle

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Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. `Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.' O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Williams, 529 U.S. at 437 (emphasis added). Arizona law requires that a petitioner file his petition for post-conviction

15 relief with supporting "[a]ffidavits, records, or other evidence currently available 16 to the defendant supporting the allegations of the petition." Rule 32.5, Ariz. R. 17 18 Crim. P. (emphasis added). See also State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 19 718, 725 (1985) (in affirming the trial court's denial of a Rule 32 hearing, the 20 appellate court noted that defendant's factual allegations were not supported by 21 22 affidavits); State v. Bowers, 192 Ariz. 419, 422, 426, 966 P.2d 1023, 1026, 1030 23 (App. 1998) (defendant alleged a "colorable claim" of ineffective assistance of 24 counsel warranting a post-conviction relief evidentiary hearing by submitting 25 26 affidavits from himself and trial counsel regarding counsel's erroneous legal 27 28
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advice); State v. Gunter, 132 Ariz. 64, 71, 643 P.2d 1034, 1041 (App. 1982)

1 (defendant established a "colorable claim" that his guilty plea was involuntary by 2 submitting medical records and affidavit). Thus, because of this burden placed 3 4 upon Arizona defendants to support their factual allegations, the mere request for 5 an evidentiary hearing during post-conviction relief proceedings is not sufficient to 6 establish diligence for Arizona defendants. See, e.g., Baja, 187 F.3d at 1079 7 8 ("State law not only permitted but required Baja to come forward with affidavits or 9 other evidence, to the extent that his claim relied on evidence outside the trial 10 record. Clearly, Baja had the opportunity in state proceedings to come forward 11 12 with evidence to support his allegation that counsel was ineffective at trial, but 13 failed to do so. He therefore failed to develop the factual basis of his claim in state 14 court proceedings within the meaning of 28 U.S.C. § 2254(e)."). See also Koste v. 15 16 Dormire, 345 F.3d 974, 985­86 (8th Cir. 2003) (lack of diligence despite hearing 17 request because petitioner made no effort to develop the record or assert any facts 18 to support claim that his counsel was ineffective), and Dowthitt v. Johnson, 230 19 20 F.3d 733, 758 (5th Cir. 2000) (petitioner who requested hearing found not diligent 21 because he failed to present affidavits of family members that were easily 22 obtainable without court order and with minimal expense). 23 24 25 26 27 28
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In accordance with these principles, this Court has ordered: Any motion for evidentiary development [including requests for discovery and for an evidentiary hearing] shall: (1) separately identify which enumerated claim(s) and subclaim(s) Petitioner contends need further factual development;

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(2) with respect to each claim or sub-claim identified in #1, (i) identify with specificity the facts sought to be developed; (ii) identify the specific exhibit(s) or evidence Petitioner contends demonstrate or support the existence of each fact sought to be developed; and (iii) explain why such fact(s), exhibit(s) and evidence are relevant with respect to each claim or sub-claim; and (3) with respect to each claim or sub-claim identified in #1, explain in complete detail: (1) why such claim or sub-claim sought to be developed was not developed in state court; and (2) why the failure to develop the claim in state court was not the result of lack of diligence, in accordance with the Supreme Court's decision in Williams v. Taylor, 529 U.S. 420 (2000). (Order of Appointment and General Procedures, March 29, 2004, at 4, emphasis

10 added). 11 12 13 evidentiary hearing that was set forth in Townsend v. Sain, 372 U.S. 293 (1963), In Petitioner attempts to resuscitate the pre-AEDPA standard for granting an

14 overruled in part, Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 8­9 (1992). 15 16 17

Townsend, the Supreme Court held that a federal court must grant an evidentiary hearing to a habeas petitioner if: (1) the merits of the factual dispute were not

18 resolved in the state hearing; (2) the state factual determination is not fairly 19 20 21 state court was not adequate to afford a full and fair hearing; (4) there is a 22 substantial allegation of newly-discovered evidence; (5) the material facts were not 23 24 25 that the state trier-of-fact did not afford the habeas applicant a full and fair fact 26 hearing. Townsend, 372 U.S. at 313. If Townsend has any continued post-AEDPA 27 28
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supported by the record as a whole; (3) the fact-finding procedure employed by the

adequately developed at the state-court hearing; or (6) for any reason it appears

viability, this Circuit has held it is only in cases in which a prisoner acted diligently

1 in attempting to develop the factual basis of a habeas claim in state court. 2 Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (citing Baja, 187 F.3d 3 4 at 1078). However, this Circuit's precedent notwithstanding, the application of 5 Townsend to post-AEDPA petitioners appears dubious, given that: (1) Townsend 6 was not grounded on constitutional law, but rather on the 1963 Supreme Court's 7 1 8 perception of Congress' intent in passing the habeas statute in effect at that time; 9 (2) three years after Townsend was decided, Congress amended 28 U.S.C. 10 §2254(d) to incorporate the Townsend factors, but subsequently removed them in 11 12 enacting the AEDPA; and (3) the Supreme Court has never held that the Townsend 13 factors are applicable to a post-AEDPA petitioner. Additionally, contrary to 14 Townsend, nothing in the AEDPA suggests that a habeas court must conduct an 15 16 evidentiary hearing in certain circumstances. See, e.g., Downs v. Hoyt, 232 F.3d 17 1031, 1041 (9th Cir. 2000) ("Moreover, even assuming Downs's claim could clear 18 the hurdle posed by § 2254(e)(2), the fact that a hearing would be permitted does 19 20 not mean that it is required. The district court retains discretion whether to hold 21 one."). Furthermore, the continued viability of Townsend appears contrary to 22 Congress' intent in enacting the AEDPA in order "to reduce delays in the 23 24 execution of state and federal criminal sentences, particularly in capital cases, and 25 26 27 28 to further the principles of comity, finality, and federalism."
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Woodford v.

See Townsend, 372 U.S. at 311.
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1 Garceau, 538 U.S. 202, 206 (2003) (citations omitted). 2 C. ARGUMENT. 3 Petitioner is requesting an evidentiary hearing in connection with habeas 4 5 Claims 1, 5, 6, 7, and 22. In addition, he is requesting leave to conduct discovery 6 with respect to Claim 22. Regarding Claims 19­21, Petitioner is attempting to 7 8 "reserve[] the right to seek discovery and/or an evidentiary hearing if and when 9 these claims are ripe for consideration by the Court." (Motion for Discovery and 10 Evidentiary Hearing, at 16.) However, as shown below, Petitioner is not entitled to 11 12 either discovery, or an evidentiary hearing, on any of these claims. 13 14 15 In Claim 1 of his amended habeas petition, Petitioner contends that the state 16 courts' denial of his motion to suppress his statements to police officers was based 17 upon an unreasonable determination of the facts in light of the evidence presented 18 during those proceedings. (First Amended Habeas Petition, at 32.) Specifically, 19 20 Petitioner argues that all his statements were involuntary, due in large part to his 21 alleged fetal alcohol spectrum disorder. (Id., at 33­34, 38.) However, as pointed 22 out in Respondents' answer to the amended petition, Petitioner never raised this 23 24 argument before the state courts; in his opening brief on direct appeal to the 25 26 27 28
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CLAIM 1

Arizona Supreme Court, he contended only that his will was overborne because he

1 was fatigued, frightened and of low intelligence. (See Respondent's Answer, 2 Exhibit B, at 18­19.)2 Thus, only that portion of the claim is properly before this 3 4 Court--any arguments based upon prenatal exposure to alcohol in connection with 5 Claim 1 are procedurally defaulted, because: (1) they were never presented to the 6 state courts; (2) consideration of these new arguments would fundamentally alter 7 8 the legal claim that was considered by the Arizona courts; and (3) Petitioner cannot 9 return to state court to exhaust the new arguments. 28 U.S.C. § 2254(b)(1)(A); 10 Coleman v. Thompson, 501 U.S. 722, 731 (1991); Vasquez v. Hillery, 474 U.S. 11
3 12 254, 260 (1986); Ariz. R. Crim. P. 32(a).

13 14 15

At the proposed hearing, Petitioner intends to call Christopher Cunniff, a pediatrician and medical geneticist, who would "testify regarding the nature and

16 scope of neuropsychological disabilities associated with [fetal alcohol spectrum 17 disorder]," an unidentified "expert witness on fetal alcohol spectrum disorder," 18 who would "testify regarding the nature and scope of neuropsychological 19 20 ________________________ 21 Similarly, during the suppression hearing before trial, Petitioner never argued that his statements were involuntary due to his alleged fetal alcohol spectrum disorder. 22 (See R.T. 7/25/97, at 69­72, 76­77; R.T. 11/24/97, at 4­25, 36­41, 47­61.) 23 24 25 26 27 28
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Petitioner cannot rely upon ineffective assistance of counsel as "cause" to excuse the procedural default of his arguments concerning fetal alcohol spectrum disorder, because he never raised any independent claims before the Arizona courts that either his trial or appellate attorneys were ineffective for failing to investigate or present evidence with respect to that alleged disorder. See Edwards v. Carpenter, 529 U.S. 446, 452, (2000) ("`[A] claim of ineffective assistance' . . . generally must `be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'") (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)).

1 disabilities associated with [fetal alcohol spectrum disorder]," and an unidentified 2 "expert witness on involuntary confessions," who would "testify regarding the 3 4 effect Petitioner's [fetal alcohol spectrum disorder] has upon the voluntariness of 5 his confession." (Motion for Discovery and Evidentiary Hearing, at 11.) Because 6 the only reason Petitioner gives for requesting a hearing on Claim 1 is to present 7 8 witnesses and evidence concerning his alleged prenatal exposure to alcohol, and 9 because those arguments are procedurally defaulted and therefore not properly 10 before the Court, his request for a hearing should be denied. 11 12 Procedural default of the underlying arguments notwithstanding, Petitioner

13 is still not entitled to an evidentiary hearing. In his motion, Petitioner claims that 14 "the restrictions of 28 U.S.C. § 2254(e)(2) do not apply in this instance because 15 16 [he] did not `fail[] to develop the factual basis' of the claim in state court," noting 17 that "[t]he trial court held an evidentiary hearing on Petitioner's motion to suppress 18 his confession." (Motion for Discovery and Evidentiary Hearing, at 10­11, 19 20 footnote omitted.) However, contrary to Petitioner's contention, he did not

21 develop any information concerning his alleged prenatal exposure to alcohol 22 during the suppression hearing. At the hearing, Petitioner's attorney called two 23 24 witnesses, Sergeant Ralph Stegall, of the Illinois State Police, and Petitioner. 25 26 27 alcohol, and Petitioner's attorney never argued that Petitioner's statements were 28 involuntary due to such exposure. (See R.T. 7/25/97, at 69­72, 76­77; R.T.
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Neither witness testified concerning Petitioner's alleged prenatal exposure to

1 11/24/97, at 4­25, 36­41, 47­61.) The fact that Petitioner raised other issues 2 concerning the voluntariness of his statements at his suppression hearing does not 3 4 excuse his lack of diligence in developing information concerning his alleged fetal 5 alcohol spectrum disorder in the Arizona courts. See, e.g., Baja, 187 F.3d at 1079 6 ("Clearly, Baja had the opportunity in state proceedings to come forward with 7 8 evidence to support his allegation that counsel was ineffective at trial, but failed to 9 do so. He therefore failed to develop the factual basis of his claim in state court 10 proceedings within the meaning of 28 U.S.C. § 2254(e)."). In short, the state 11 12 courts cannot be faulted for failing to consider evidence that was never presented 13 to them. Thus, because Petitioner failed to diligently develop this information in 14 the Arizona courts, he is not entitled to a hearing unless he first satisfies the 15 16 conditions of § 2254(e)(2). Petitioner fails to argue, much less prove: (1) the 17 claim relies on a new, retroactive rule of constitutional law, or that information 18 concerning the alleged disorder could not have been discovered through the 19 20 exercise of diligence during the state proceedings; and (2) that the facts underlying 21 the claim would be sufficient to establish by clear and convincing evidence that, 22 but for constitutional error, no reasonable fact-finder would have found Petitioner 23 24 guilty of the charges on which he was convicted. 25 26 27 Moreover, even without the § 2254(e)(2) bar, Petitioner would not be 28 entitled to a hearing, because his proposed new evidence concerning fetal alcohol
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28 U.S.C. § 2254(e)(2).

Therefore, § 2254(e)(2) prohibits a hearing on this matter.

1 spectrum disorder has no relevance to habeas Claim 1--even if Petitioner suffers 2 from fetal alcohol spectrum disorder, that fact alone does not make it more 3 4 4 probable than not that his statements were involuntary. There is no evidence in 5 the record that officers engaged in any coercive activities in questioning Petitioner, 6 nothing in the record suggests that the officers knew or should have known that 7 8 Petitioner allegedly suffered from any mental condition that could have affected 9 the constitutional voluntariness of his statements, and Dr. Cunniff does not contend 10 that the alleged affliction would have rendered Petitioner unable to voluntarily 11 12 agree to speak to officers. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) 13 ("coercive police activity is a necessary predicate to the finding that a confession is 14 not `voluntary' within the meaning of the Due Process Clause of the Fourteenth 15
th 16 Amendment"); United States v. Turner, 926 F.2d 883, 888 (9 Cir. 1991) ("a

17 defendant's mental state alone does not make a statement involuntary"). 18 CLAIM 5 19 20 In habeas Claim 5, Petitioner contends that his trial counsel were ineffective

21 at the guilt phase of his trial, because they: (A) failed to examine a bloody palm 22 print in a timely manner before trial; (B) failed to timely retain a mental health 23 24 expert and failed to retain an expert on coerced confessions; (C) were rendered 25 26
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Relevant evidence is evidence which has a "tendency to make the existence of 27 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. 28
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1 ineffective by a duplicitous indictment; (D) failed to challenge the alleged 2 defective indictment; and (E) failed to move for a mistrial in response to statements 3 4 made by prospective juror Diane Middledorf. (First Amended Habeas Petition, at 5 54­67.) 6 Petitioner waived sub-claims (A), (B), and (E) because he failed to argue 7 5 8 their merits in the body of his brief to the Arizona supreme court. As noted in 9 Respondents' answer to Petitioner's amended habeas petition, under Arizona law, a 10 claim must be argued in the body of a brief; merely referring to the claim in the 11 12 brief, or arguing it in a footnote or in an appendix, results in waiver. State v. 13 Miller, 186 Ariz. 314, 323, 921 P.2d 1151, 1160 (1996); State v. Kemp, 185 Ariz. 14 52, 57, 912 P.2d 1281, 1286 (1996); State v. Walden, 183 Ariz. 595, 605, 905 P.2d 15 16 974, 984 (1995). Thus, sub-claims (A), (B), and (E) are procedurally defaulted, 17 because: (1) they were never presented to the Arizona supreme court in a 18 procedurally correct manner; and (2) Petitioner cannot return to state court to 19 20 exhaust them. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 21 842­48 (1999) (a prisoner must fairly present his federal claims to the state's 22 highest court in a procedurally appropriate manner); Coleman, 501 U.S. at 731; 23 24 25
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In his Traverse, Petitioner points out that these claims were listed in a supplement 26 to Petitioner's original petition for review. However, Petitioner presented no argument concerning these claims in the body of that supplement, or in the body of 27 his original petition for review, and instead merely referred to the arguments contained in an appendix to his original petition for review. 28
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1 Ariz. R. Crim. P. 32(a). These precluded sub-claims therefore cannot support 2 Petitioner's request for an evidentiary hearing. 3 Petitioner admits sub-claim (C), that his trial counsel were rendered 4 5 ineffective by a duplicitous indictment, and sub-claim (D), that his trial counsel 6 were ineffective for failing to challenge the alleged defective indictment, were 7 6 8 never presented to the Arizona courts. (First Amended Habeas Petition, at 58, 9 64.) Thus, because sub-claims (C) and (D) were never presented to the state 10 courts, and because Petitioner cannot return to the state courts to litigate them, 11 12 these sub-claims are also procedurally defaulted, and likewise cannot support 13 Petitioner's request for a hearing. 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. 14 at 731 (1991); Ariz. R. Crim. P. 32(a).7 15 16 Petitioner is seeking an evidentiary hearing on Claim 5 in order to call his

17 trial counsel, who purportedly will testify concerning their "investigation of 18 Petitioner's case, as well as [their] strategy regarding presentation of evidence at 19 20 the guilt phase of Petitioner's trial." (Motion for Discovery and Evidentiary

21 Hearing, at 12­13.) Petitioner also intends to call an unidentified "witness on 22 ________________________ 23 Petitioner's allegations of duplicity relate only to the conspiracy to commit murder count and the armed robbery count. (First Amended Habeas Petition, at 24 59­64.) 25 In his amended petition, Petitioner contends that sub-claims (C) and (D) are nevertheless "ripe for adjudication," because: (1) of the absence of an available 26 state corrective process; and (2) he is not precluded from returning to the Arizona courts to litigate them. (First Amended Habeas Petition, at 50, 59­65.) Petitioner 27 is mistaken, for the reasons given in Respondents' answer. (Answer to Amended Habeas Petition, at 62­65.) 28
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1 representation of capital defendants," who would "testify regarding the minimum 2 qualifications and standards of performance of trial counsel in capital cases. (Id., 3 4 at 13.) Procedural default of the underlying sub-claims notwithstanding, Petitioner 5 is still not entitled to this proposed evidentiary hearing. In his motion, he claims 6 that he did not "`fail[] to develop' the factual basis of the claim in state court," 7 8 because he "requested an evidentiary hearing on this claim, but was denied one by 9 the state court". (Motion for Discovery and Evidentiary Hearing, at 13.) However, 10 Petitioner's mere request for an evidentiary hearing does not satisfy the initial 11 12 diligence threshold of § 2254(e)(2). To the contrary, Petitioner failed to diligently 13 develop this new information below because, under Arizona law, as previously 14 discussed, he had a duty to file supporting affidavits, records, or other evidence 15 16 available to him to support the allegations raised in his petition for post-conviction 17 relief. Rule 32.5, Ariz. R. Crim. P.; see also Borbon, 146 Ariz. at 399, 706 P.2d at 18 725; Bowers, 192 Ariz. at 426, 966 P.2d at 1030; Gunter, 132 Ariz. at 71, 643 P.2d 19 20 at 1041. Petitioner was obviously aware of this requirement, because he filed a 21 number of attachments with his petition for post-conviction relief. However, he 22 failed to file any affidavits or declarations from either of his trial attorneys, or from 23 24 any "expert on the representation of capital defendants," and he fails to argue, 25 26 27 32 petition had he acted diligently. Petitioner thus failed to develop this proffered 28 new information before the state courts. Baja, 187 F.3d at 1079 ("State law not
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much less demonstrate, why he could not have filed such attachments to his Rule

1 only permitted but required Baja to come forward with affidavits or other evidence, 2 to the extent that his claim relied on evidence outside the trial record. Clearly, 3 4 Baja had the opportunity in state proceedings to come forward with evidence to 5 support his allegation that counsel was ineffective at trial, but failed to do so. He 6 therefore failed to develop the factual basis of his claim in state court proceedings 7 8 within the meaning of 28 U.S.C. S 2254(e)."). See also Koste, 345 F.3d at 985­86 9 (lack of diligence despite hearing request because petitioner made no effort to 10 develop the record or assert any facts to support claim that his counsel was 11 12 ineffective), and Dowthit, 230 F.3d at 758 (petitioner who requested hearing found 13 not diligent because he failed to present affidavits of family members that were 14 easily obtainable without court order and with minimal expense). 15 16 Thus, because Petitioner failed to develop this new information in the state

17 courts, he is not entitled to an evidentiary hearing unless he first meets the 18 conditions set out in § 2254(e)(2). Petitioner has failed to do so, because he fails to 19 20 argue, much less prove: (1) any of the underlying sub-claims rely on a new, 21 retroactive rule of constitutional law, or that the new information from the 22 proposed witnesses could not have been discovered through the exercise of 23 24 diligence during the state proceedings; and (2) that the facts underlying the sub25 26 27 for constitutional error, no reasonable fact-finder would have found Petitioner 28 U.S.C. § 2254(e)(2).
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claim would be sufficient to establish by clear and convincing evidence that, but

28 guilty of the charges on which he was convicted.
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1 Therefore, § 2254(e)(2) prohibits a hearing on this matter. 2 CLAIM 6. 3 In his amended habeas petition, Petitioner argues that his counsel were 4 5 ineffective during the penalty phase of his trial for failing to investigate and present 6 evidence that he allegedly suffers from fetal alcohol spectrum disorder, due to his 7 8 mother's purported ingestion of alcohol and drugs during her pregnancy. (First 9 Amended Habeas Petition, at 72­74.) However, Petitioner did not make this 10 argument in his petition for post-conviction relief; instead, he argued that his 11 12 counsel were ineffective for failing to investigate and present evidence of the 13 alleged physical and psychological abuse he suffered during childhood, and for 14 failing to link that alleged abuse to his subsequent murderous acts. (See Answer to 15 16 Amended Habeas Petition, Exhibit E, at 23­25.) Thus, Petitioner's new arguments 17 concerning his alleged prenatal exposure to alcohol are procedurally defaulted, 18 because: (1) they were never presented to the state courts; (2) they materially alter 19 20 the legal basis of the claim considered by the state court; and (3) Petitioner cannot 21 return to state court to litigate them. 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 22 U.S. at 731; Vasquez, 474 U.S. at 260; Ariz. R. Crim. P. 32(a). 23 24 25 26 27 28
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Moreover, under Arizona law, Petitioner waived Claim 6 as raised in his PCR petition by failing to argue its merits in the body of his state brief to the

1 Arizona Supreme Court.8 Thus, the Rule 32 claim was never presented to the 2 Arizona Supreme Court in a procedurally correct manner. Boerckel, 526 U.S. at 3 4 842­48; Vasquez, 474 U.S. at 260; Kemp, 185 Ariz. at 57, 912 P.2d at 1286. 5 Because Petitioner cannot return to the Arizona Supreme Court in order to litigate 6 it, the claim as raised below is procedurally defaulted. 28 U.S.C. § 2254(b)(1)(A); 7 8 Coleman, 501 U.S. at 731; Ariz. R. Crim. P. 32(a). Thus, because both Petitioner's 9 new arguments concerning his alleged fetal alcohol spectrum disorder, as well as 10 the claim as originally raised below in his PCR petition, are procedurally defaulted, 11 12 neither can support Petitioner's request for a hearing. 13 14 15 notwithstanding, Petitioner is still not entitled to an evidentiary hearing. Petitioner 16 intends to call the following witnesses at the proposed hearing: 17 18 19 20 21 22 23 1. His trial counsel, who "will testify regarding the mitigation investigation in Petitioner's case, as well as [their] strategy regarding presentation of evidence at Petitioner's sentencing hearing;" 2. His trial investigator, who "will testify regarding his mitigation investigation in Petitioner's case, as well as his qualifications to conduct a mitigation investigation;" 3. Dr. Christopher Cunniff, who "will testify regarding his opinion that Petitioner suffers from [fetal alcohol spectrum disorder];" Procedural default of both the underlying claim and the new arguments

24 ________________________ 25 In his Traverse, Petitioner points out that this claim was listed in a supplement to Petitioner's original petition for review. However, Petitioner presented no 26 argument concerning the claim in the body of that supplement, or in the body of his original petition for review, and instead merely referred to the arguments contained 27 in an appendix to his original petition for review. 28
Case 2:04-cv-00534-NVW Document 46 20 Filed 10/17/2005 Page 20 of 38
8

1 2 3 4 5 6 4. An unidentified expert witness on fetal alcohol spectrum disorder, who "will testify regarding the nature and scope of neuropsychological disabilities associated with [the disorder];" and 5. An unidentified expert witness on representation of capital defendants, who "would testify regarding the minimum qualifications and standards of performance of trial counsel in capital cases."

7 (Motion for Discovery and Evidentiary Hearing, at 13­14.) Contrary to 8 Petitioner's assertions, the mere fact that he requested an evidentiary hearing on his 9 10 ineffective assistance of counsel claims during his state collateral proceedings does 11 not mean that he developed this new information in state court. Petitioner had a 12 duty to append this information in document form to his petition for post13 14 conviction relief. Rule 32.5, Ariz. R. Crim. P.; see, e.g., Borbon, 146 Ariz. at 399, 15 706 P.2d at 725; Bowers, 192 Ariz. at 426, 966 P.2d at 1030; Gunter, 132 Ariz. at 16 71, 643 P.2d at 1041. Petitioner failed to do so, and he fails to argue, much less 17 18 demonstrate, why he could not have done so had he chosen to act diligently in state 19 court. Petitioner thus failed to develop this proffered new information before the 20 state courts. Baja, 187 F.3d at 1079; see also Koste, 345 F.3d at 985­86; Dowthit, 21 22 230 F.3d at 758. 23 24 25 Petitioner is not entitled to an evidentiary hearing unless he first meets the 26 conditions set out in § 2254(e)(2). He fails to meet any of those conditions, 27 because he fails to argue, much less prove: (1) the underlying claim relies on a 28
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Because he failed to develop the new information in the state courts,

1 new, retroactive rule of constitutional law, or that the new information from the 2 proposed witnesses could not have been discovered through the exercise of 3 4 diligence during the state proceedings; and (2) that the facts underlying the claim 5 would be sufficient to establish by clear and convincing evidence that, but for 6 constitutional error, no reasonable fact-finder would have found Petitioner guilty of 7 8 the charges on which he was convicted. 28 U.S.C. § 2254(e)(2). Therefore, 9 §2254(e)(2) prohibits a hearing on this matter. 10 CLAIM 7 11 12 In Claim 7, Petitioner contends that his appellate counsel was ineffective

13 because he failed to challenge: (1) the trial court's jury selection procedures; (2) 14 the trial court's mere-presence instruction; and (3) the trial court's consideration of 15 16 victim-impact evidence at sentencing. (First Amended Habeas Petition, at 75­77.) 17 Petitioner raised this claim in his petition for post-conviction relief, but abandoned 18 it by failing to argue the claim's merits in the body of his briefs to the Arizona 19
9 20 supreme court. Kemp, 185 Ariz. at 57, 912 P.2d at 1286 (to avoid waiver, a claim

21 must be argued in the body of a brief). Because Petitioner cannot return to the 22 Arizona supreme court to litigate this claim, it is procedurally defaulted and not 23 24 subject to federal habeas review. 28 U.S.C. § 2254(b)(1(A); Coleman, 501 U.S. at 25 26 27 28 731; Ariz. r. Crim. P. 32(a). Thus, the precluded claim cannot support his request
________________________
9

See note 8.
22 Filed 10/17/2005

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1 for a hearing. 2 Procedural default notwithstanding, Petitioner is still not entitled to his 3 4 requested hearing. The question of ineffective assistance of appellate counsel is 5 necessarily record-based and limited to the trial record. Nevertheless, Petitioner 6 proffers that at the hearing he would call his appellate counsel, who "will testify 7 8 regarding his investigation of Petitioner's case, his selection and rejection of 9 various claims that were or could have been raised on appeal, and his preparation 10 of the opening and reply brief in Petitioner's direct appeal." (Motion for 11 12 Discovery and Evidentiary Hearing, at 15.) Petitioner also would call an

13 unidentified "expert witness on representation of capital defendants," who "would 14 testify regarding the minimum qualifications and standards of performance of 15 16 appellate counsel in capital cases." (Id.) However, Petitioner failed to present this 17 new information to the state courts. Petitioner had an affirmative duty to transmit 18 this new information to the state court in affidavit or declarative form along with 19 20 his petition for post-conviction relief, but failed to do so. Rule 32.5, Ariz. R. Crim. 21 P.; see, e.g., Borbon, 146 Ariz. at 399, 706 P.2d at 725; Bowers, 192 Ariz. at 426, 22 966 P.2d at 1030; Gunter, 132 Ariz. at 71, 643 P.2d at 1041. Petitioner fails to 23 24 argue, much less demonstrate, why he could not have done so had he chosen to act 25 26 27 before the state courts. Baja, 187 F.3d at 1079; see also Koste, 345 F.3d at 985­86; 28 Dowthit, 230 F.3d at 758.
Case 2:04-cv-00534-NVW Document 46 23 Filed 10/17/2005 Page 23 of 38

diligently in state court. He thus failed to develop this proffered new information

1 2 3

Because he failed to develop this new information in the state courts, Petitioner is not entitled to an evidentiary hearing unless he first meets the

4 conditions set out in § 2254(e)(2). He fails to meet any of those conditions, 5 because he fails to argue, much less prove: (1) the underlying claim relies on a 6 new, retroactive rule of constitutional law, or that the new information from the 7 8 proposed witnesses could not have been discovered through the exercise of 9 diligence during the state proceedings; and (2) that the facts underlying the claim 10 would be sufficient to establish by clear and convincing evidence that, but for 11 12 constitutional error, no reasonable fact-finder would have found Petitioner guilty of 13 the charges on which he was convicted. 28 U.S.C. § 2254(e)(2). Therefore, § 14 2254(e)(2) prohibits a hearing on this matter. 15 16 17 18 19 process in violation of the Fifth, Eighth, and Fourteenth Amendments. In his 20 motion, Petitioner attempts to "reserve[] the right to seek discovery and/or an 21 evidentiary hearing if and when [this claim is] ripe for consideration by the Court." 22 (Motion for Discovery and Evidentiary Hearing, at 16.) However, Petitioner 23 24 admits that he failed to raise this claim before the Arizona courts. (First Amended 25 26 27 the claim, it is procedurally defaulted, and thus cannot serve as a basis for an 28 evidentiary hearing. 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. at 731; Ariz.
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CLAIM 19 In habeas Claim 19, Petitioner alleges that he will be denied a fair clemency

Habeas Petition, at 105.) Because he cannot return to the Arizona courts to litigate

1 R. Crim. P. 32(a).10 Thus, he has no "right" to reserve. 2 Moreover, Petitioner has no "right" to either discovery or an evidentiary hearing on 3 4 this claim because it has no federal basis. Habeas relief is only available for claims 5 that a prisoner "is in custody in violation of the Constitution or laws or treaties of 6 the United States." 28 U.S.C. § 2254(a). There is no constitutional right to 7 8 clemency, and challenges to state clemency procedures do no represent an attack 9 on a prisoner's detention--his conviction or sentence--and thus do not constitute 10 proper grounds for relief. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 11 12 280 (1998); Connecticut Bd. Of Pardons v. Dumchat, 452 U.S. 458, 464 (1981); 13 Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir. 1997) (per curiam); Franzen v. 14 Brinkman, 877 F.2d 26 (9th Cir. 1989) (per curiam). 15 16 17 18 19 execution. In his motion, Petitioner attempts to "reserve[] the right to seek 20 discovery and/or an evidentiary hearing if and when [this claim is] ripe for 21 consideration by the Court." (Motion for Discovery and Evidentiary Hearing, at 22 16.) Petitioner admits that this claim is unexhausted, but because there is no 23 24 ________________________ 25 Despite the fact that the claim was never presented to the Arizona courts, Petitioner argues in his amended habeas petition that it "is nevertheless ripe for 26 adjudication because, among other things, there is an absence of an available state corrective process." (Amended Habeas Petition, at 105.) Petitioner is mistaken, 27 for the reasons given in Respondents' answer. (See Answer to Amended Habeas Petition, at 138­39.) 28
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10

CLAIM 20 In Claim 20, Petitioner alleges that he will be incompetent by the time of his

1 outstanding warrant of execution, and because Petitioner's sanity at the time a 2 warrant may be issued in the future is not foreseeable, Respondents agree with 3 4 Petitioner that this claim is not "ripe." See Stewart v. Martinez-Villareal, 523 U.S. 5 637, 643­44 (1998). 6 Because this unexhausted claim is not ripe, the Court should dismiss it as 7 8 premature. If a warrant of execution is issued, the claim will become ripe, and at 9 that time Petitioner can exhaust it by raising it in the state courts, pursuant to 10 A.R.S. § 13­4022. If the Arizona courts rule against him, Petitioner can then raise 11 12 the claim in a successive federal habeas petition. Martinez-Villareal, 523 U.S. at 13 645­46. 14 15 16 CLAIM 21 In Claim 21, Petitioner contends that his execution after 7 years on death

17 row would violate the Eighth Amendment's prohibition against cruel and unusual 18 punishment. In his motion, Petitioner attempts to "reserve[] the right to seek 19 20 discovery and/or an evidentiary hearing if and when [this claim is] ripe for 21 consideration by the Court. (Motion for Discovery and Evidentiary Hearing, at 22 16.) However, Petitioner admits that he failed to raise the claim before the Arizona 23
11 24 courts, and because he cannot return to the state courts to properly present it, the

25 26 27 28

claim is procedurally defaulted. 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. at
________________________
11

(See First Amended Habeas Petition, at 111.)
26 Filed 10/17/2005

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1 731 (1991); Ariz. R. Crim. P. 32(a). Thus, because the defaulted claim is not 2 subject to the Court's jurisdiction, Petitioner has no "right" to discovery or an 3 4 evidentiary hearing to "reserve." 5 6 7 In his traverse, Petitioner argues that this claim is not subject to the exhaustion doctrine due to the fact that it was "never ripe for adjudication in the

8 Arizona courts because the factual basis . . . did not exist while Petitioner's case 9 was pending there. (Traverse, at 65.) Petitioner is mistaken. The fact that 10 Petitioner might spend an extended period of time on death row was foreseeable 11 12 during the pendency of his state proceedings. By the time the Arizona Supreme 13 Court affirmed his convictions and sentences on direct appeal, Petitioner had 14 already been on death row for more than 1½ years; by the time he filed his petition 15 16 for post-conviction relief, Petitioner had been on death row for 3½ years. The fact 17 that the state courts might not have granted relief on the claim does not exempt 18 Petitioner from the exhaustion requirement. Roberts v. Arave, 847 F.2d 528, 530 19
th 20 (9 Cir. 1982) ("[T]he apparent futility of presenting claims to state courts does not

21 constitute cause for procedural default.") (citing Engle v. Isaac, 456 U.S. 107, 130 22 (1982)). 23 24 25 26 27 Court has never held that an extended period of incarceration on death row 28 constitutes cruel and unusual punishment, and therefore the claim is not properly
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Procedural default notwithstanding, Petitioner is not entitled to either discovery or an evidentiary hearing on this claim. The United States Supreme

1 before the Court. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (a habeas court 2 is "without the power" to extend the law beyond Supreme Court precedent). 3 4 Additionally, the law of the Circuit is that extended periods of incarceration on 5 death row do not constitute cruel and unusual punishment. McKenzie v. Day, 57 6 F.3d 1493, 1494 (9th Cir. 1995). 7 CLAIM 22 8 9 10 11 habeas Claim 22. During state collateral relief proceedings, Petitioner raised, 12 without any accompanying argument, a claim that "[e]xecution by lethal injection 13 is cruel and unusual punishment." By failing to argue the merits of this claim, 14 Petitioner waived it under Arizona law. State v. Nirschel, 155 Ariz. 206, 208, 745 15 16 P.2d 953, 955 (1987) ("Failure to argue a claim constitutes abandonment and 17 waiver of that issue.") (citing State v. McCall, 139 Ariz. 147, 163, 677 P.2d 920, 18 936 (1983)); Kemp, 185 Ariz. at 57, 912 P.2d at 1286 (to avoid waiver, a claim 19 20 must be argued in the body of a brief). Because he cannot return to state court and 21 present the claim in a procedurally correct manner, it is procedurally defaulted, and 22 thus cannot serve as a basis for either discovery or an evidentiary hearing. 28 23 24 U.S.C. § 2254(b)(1)(A); Boerckel, 526 U.S. at 842­48; Coleman, 501 U.S. at 731; 25 26 27 In his traverse, Petitioner contends that Claim 22 is not procedurally 28 defaulted, but his arguments are unpersuasive. He claims that the following newly
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Petitioner is requesting both discovery and an evidentiary hearing regarding

Ariz. R. Crim. P. 32(a).

1 discovered facts were not available during his state court proceedings, and that, 2 pursuant to Ariz. R. Crim. P. 32.1(e) and 32.2(b), he could therefore return to state 3 4 court to present the new information: 5 6 7 8 9 10 These newly discovered facts concern the interplay between the three drugs used to achieve execution by lethal injection: pentothal, pancuronium, and potassium chloride. Specifically, the newly discovered facts reveal that the combination of these three drugs renders the person who receives them paralyzed, but still capable of feeling the excruciating pain associated with the execution. In other words, the drugs act to mask the person's pain, rather than to provide for a peaceful death. (Traverse, at 70, footnotes omitted.) However, contrary to Petitioner's assertion,

11 claims that a prisoner might retain consciousness and experience pain and suffering 12 13 14 15 16 have been raised for years. For example, a federal court noted in 1983: Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation. during the injection of the second and third chemicals in the execution protocol

17 Chaney v. Heckler, 718 F.2d 1174, 1191 (D.C. Cir. 1983), rev'd, 470 U.S. 821 18 19 20 on direct appeal, and more than 5 years before Petitioner filed his petition for post21 conviction relief, at least one law review article opined at length upon the same 22 23 24 25 26 27 28 According to Edward A. Brunner, M.D., Ph.D., Professor of Anesthesia at Northwestern University Medical School, and Lawrence Deems Egbert, M.D., former Professor of Anesthesiology at the University of Texas Southwestern Medical School, substantial pain and suffering can occur when the inmate receives an inadequate dosage of sodium pentothal and therefore retains consciousness and sensation during the injection of the second and third chemicals. Brunner noted that the procedure applied in Illinois initially required an amount of pentothal that would be insufficient to produce unconsciousness
Document 46 29 Filed 10/17/2005 Page 29 of 38

(1985). Additionally, more than 2½ years before Petitioner filed his opening brief

concerns now raised by 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

in approximately twenty percent of the population. Similar problems arise when the three chemicals are administered out of sequence, thereby creating a high risk that the prisoner will suffer extreme physical pain during a lethal injection even without the outward appearance of pain. Other factors can also lead to possible pain and suffering. First, the discretion allowed those administering each procedure fails to take into account each prisoner's physical characteristics. However, "[a]ge, sex, and body weight all contribute to the individual's response to the drug," in addition to the condition of an individual's veins. For example, physicians have difficulty finding a suitable vein for diabetics, those with heavily pigmented skin, the obese or extremely muscular, the very nervous, and drug users. Indeed, nearly onequarter of the prison population's veins may be inaccessible because they are too deep, flat, below layers of fat, or inoperative from drug use. Although finding a vein can be difficult for medically trained people, the procedure becomes even more problematic for the untrained executioner. In some cases, executioners must insert a catheter into a relatively accessible, yet sensitive, part of the body, such as the hand or groin. In other cases, executioners are forced to perform a "cutdown," a surgical procedure that exposes the vein. Other problems include: (1) inserting the catheter in the wrong direction, causing the chemicals to flow away from the inmate's heart, thereby hindering their absorption; (2) inserting the catheter directly into an artery instead of a vein; and (3) inserting the catheter intramuscularly instead of intravenously. Moreover, the injection of sodium pentothal may cause choking or gagging if the prisoner eats or drinks six to eight hours before the chemical is administered. Lethal injection is considered the most humane method for the euthanasia of animals. Yet, in contrast to the way the procedures are handled for death row inmates, the Humane Society firmly states that the chemicals must be injected by "well trained and caring personnel."

22 Denno, Deborah W., Getting to Death: Are Executions Constitutional?, 82 Iowa 23 L. Rev. 319, 380­82 (Jan. 1997). Moreover, Petitioner cited a number of sources 24 25 in his amended petition regarding this information that were available prior to the 26 filing of his petition for post-conviction relief, when he first attempted to raise this 27 claim in state court. For example: 28
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1 2 3 4 5 6 7 8 9 10

[T]he dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . . . . ... [Administration of pancuronium is] like being tied to a tree, having darts thrown at you, and feeling the pain without any ability to respond. (Amended Habeas Petition, at 123­25, quoting an affidavit of Dr. Dennis Geiser,

11 filed in Abu-Ali Abdur' Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000). In another 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is my understanding that during the performance of lethal injection as carried out during the death penalty, potassium (and other agents) are administered intravenously to the defendant. Such administration is, in my professional opinion based upon my knowledge, training, and experience, and within a reasonable degree of medical certainty, entirely inadequate in order to achieve reasonable cardiac standstill. Since the agents are introduced intravenously, there will occur an immediate dilution of the solution, weakening any potential effect it may have. By illustration an 80 kilogram person would have a blood volume of approximately 5.5 to 6 liters. An administration of 100 milli-equivalents of potassium intravenously to the 80 kilogram person would result in a blood concentration of only 16.6 meq/L. Such a dose is according to scientific literature . . . and as evidenced in my practice, inadequate to achieve cardiac standstill. Furthermore, it must be remembered that [in contrast to the administration of potassium chloride in the surgical context] such administration is: (1) not directed into the coronary arteries; (2) directed only in an antegrade fashion; and (3) is at mormothermia (37 degrees Celsius, not at five degrees Celsius). Without reasonable data regarding any one person's anatomic and pathologic state as to their myocardial function prior to administration of the potassium, there can be no reasonable certainty that the potassium solution intended to arrest the heart would be distributed in a fashion that would arrest the heart. Thus, the very orchestrated and methodical methods used in surgery should not be thought of as optimizing the arrest of the heart, but should be considered to be necessary as the only
Document 46 31 Filed 10/17/2005 Page 31 of 38

lengthy quotation, this time from a certified perfusionist, Petitioner relates:

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1 2 3 4 5 6 7 8 9 10

reasonable means of ensuring that the heart is arrested. If the heart could be arrested by intravenous objections, cardiac surgery today would be a very different animal--science and research tell us that mere intravenous injection of potassium is not sufficient. ... Additionally, in my professional opinion, and within a reasonable degree of medical certainty, barring an effective cardiac arrest, it is entirely possible that a lethal injection as I understand it will serve only to arrest the function of the pulmonary system, thereby causing a state of ischemia to the entire body (no oxygen delivery), which, in turn, will ultimately arrest the heart as well (with no oxygen delivery to it.) As a result, the defendant is simply suffocated due to lack of oxygen. (Amended Habeas Petition, at 126­27, quoting an affidavit of James J. Ramsey,

11 also filed in the 2000 Abu-Ali Abdur' Rahman case.) Additionally, Petitioner cites 12 13 14 filing of his post-conviction relief petition: Denno, Deborah, When Legislatures two other sources of information which were available prior to the May, 2002

15 Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and 16 17 18 2000 Report of the American Veterinary Medical Association Panel on Lethal Injection and What It Says About Us, 63 Ohio St. L.J. (Feb. 2002); and the

19 Euthanasia, 218 Journal of the Am. Vet. Med. Ass. 669. (See Amended Habeas 20 21 22 Thus, the factual basis of habeas Claim 22 existed long before Petitioner attempted 23 to first raise the claim during his state collateral relief proceedings, and therefore 24 25 26 Ariz. R. Crim. P. 32.2(a). 27 28
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Petition, at 128 n.568, n.569; 129 n. 570; 130 n.571, n.572; and 131 at n.575.)

Petitioner cannot return to Arizona to present it for the first time to the state courts.

Petitioner also argues that the exhaustion doctrine is not applicable to the

1 claim because: 2 Ever since Arizona adopted [] lethal injection as its sole method of execution in 1992, the Arizona Supreme Court has 3 consistently rejected the claim that [] lethal injection is cruel and unusual punishment within the meaning of the Eighth 4 Amendment. Petitioner had no reason to believe that it would rule any differently for him. It would therefore have been futile 5 for him to present this claim to that court, and this Court should not require him to have exhausted it before reviewing it on the 6 merits. 7 (Traverse, at 71­72, footnotes omitted.) However, Petitioner's argument is 8 9 contrary to this Court's precedent. Arave, 847 F.2d at 530 ("[T]he apparent futility 10 of presenting claims to state courts does not constitute cause for procedural 11 default.") (citing Engle v. Isaac, 456 U.S. 107, 130 (1982)). 12 Even if Claim 22 is not procedurally defaulted, neither discovery nor an 13 14 evidentiary hearing is appropriate regarding the claim. The United States Supreme 15 Court has never held that execution by lethal injection violates the Eighth 16 17 Amendment, and this Court can only grant habeas relief based upon United States 18 Supreme Court precedent. Dows, 211 F.3d at 486. Moreover, the law of this 19 Circuit is that execution by lethal injection does not violate the Eighth 20
th 21 Amendment. Vickers v. Stewart, 144 F.3d 613, 617 (9 Cir. 1997); LaGrand v.

22 Stewart, 133 F.3d 1253, 1264­65 (9th Cir. 1998); Poland v. Stewart, 117 F.3d 23 1094, 1105 (9th Cir. 1997). 24 25 Procedural default and non-cognizability of the underlying claim

26 notwithstanding, Petitioner is still not entitled to either discovery or an evidentiary 27 hearing. With regard to discovery, Petitioner is requesting leave to conduct: 28
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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

A. Depositions of unidentified employees of the Arizona Department of Corrections responsible for the lethal injection protocol, concerning: 1. The procedures for obtaining prescriptions for the controlled substances; 2. The form and conditions under prescriptions are stored and labeled; which the

3. The personnel and procedures for mixing and labeling the chemicals prior to an execution; 4. Whether the prisoner is subjected to a physical exam prior to execution in order to assess general health, health of blood vessels, etc.; 5. The standard dose of sodium pentothal and whether it is non-individualized (non-titrated); 6. The standard dose of pancuronium bromide and whether it is non-individualized (non-titrated) 7. The standard dose of potassium chloride and whether it is non-individualized (non-titrated); 8. The minimum qualifications and expertise for personnel in charge of each of the duties described above; 9. The procedures to establish an intravenous port and the personnel who will perform "cutdown" or infraclavicular catheterization, should it be impossible to establish IV port; 10. The minimum qualifications and expertise for personnel performing lethal injection; and 11. Whether a heart monitor is used during execution and if so, whether it will be maintained or fixed in the event of a malfunction; B. Record deposition of the Pinal County Medical Examiner, to discover autopsy protocols on persons executed by lethal injection in Arizona; and C. Record deposition of the Pima County Medical Examiner, to discover autopsy protocols of persons executed by lethal injection in Arizona.

26 (Motion for Discovery and Evidentiary Hearing, at 16­17.) 27 Petitioner is not entitled to any of this requested discovery, because he has 28
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1 failed to establish good cause. The information Petitioner seeks to discover goes 2 far beyond the scope of the general claim he attempted to raise in state court, and 3 4 he did not fairly present in state court any of the specific allegations or operative 5 facts that he now attempts to bolster through discovery. Thus, because the 6 information Petitioner now seeks was never presented to the state courts, Petitioner 7 8 is not entitled to his requested discovery. Holland, 124 S.Ct. at 2737­38 ("[W]e 9 have made it clear that whether a state court's decision was unreasonable [pursuant 10 to 28 U.S.C. 2254(d)] must be assessed in light of the record the court had before 11 12 it.") (citations omitted). In addition, because, as demonstrated below, Petitioner 13 failed to diligently develop the factual basis of his habeas claim in state court, no 14 new information obtained through discovery may be considered by this Court. See 15 16 Williams, 529 U.S. at 435 ("[F]ederal courts sitting in habeas are not an alternative 17 forum for trying facts and issues which a prisoner made insufficient effort to 18 pursue in state proceedings."). 19 20 Petitioner is also requesting an evidentiary hearing with respect to this claim,

21 during which he proposes to call: 22 A. Dr. Mark Heath, an anesthesiologist, who "will testify that there is a serious danger that the effects of the sodium pentothal 23 will wear off before the inmate dies"; 24 B. Carol Weihrer, a layperson who "will testify concerning her experience of having anesthesia wear off prematurely during 25 surgery to remove her eye"; 26 C. Dennis Geiser, who will "testify that sodium thiopental is not a proper anesthetic for lethal injection because it is very 27 short-acting"; 28
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1 2 3

D. James Ramsey, a certified perfusionist, who will testify that potassium chloride may not always stop a heart from beating, and that "[t]he use of this drug in a limb, with veins that may be compromised by drug abuse, diabetes, etc., is extremely risky... [and] causes a severe burning sensation when injected."

4 (Motion for Discovery and Evidentiary Hearing, at 17­18.) 5 Petitioner failed to present this new information to the state courts. Contrary 6 7 to his protestations, the fact that he requested a hearing below does not mean that 8 he developed this information in the state courts. Petitioner had an affirmative 9 duty to