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 FIRST MOTION TO EXPAND THE RECORD PURSUANT TO RULE 7 OF THE RULES GOVERNING SECTION 2254 CASES CIV 04-0534-PHX-NVW [Death Penalty Case]

Respondents request the Court to deny Petitioner's First Motion to Expand

18 the Record. Expansion of the record to include the proposed exhibits is not 19 appropriate for a number of reasons: (1) either the underlying habeas claims or 20 arguments are not properly before this Court, or are not subject to federal habeas 21 relief; (2) the exhibits are not relevant to the underlying claims; or 3) Petitioner 22 failed to develop the new information during his state court proceedings, and has 23 subsequently failed to meet the requirements of 28 U.S.C. § 2254(e)(2). 24 25 26 27 28
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1 2 3 4 5 6 7 8 9 10 11 12 13 part: 14 15 16 A.

DATED this 17th day of October, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

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

MEMORANDUM OF POINTS AND AUTHORITIES LEGAL STANDARD FOR EXPANDING THE RECORD. Rule 7 of the Rules Governing Section 2254 cases provides, in pertinent

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.

17 The purpose of this provision is not to provide a mechanism for a prisoner to 18 expand a subsequent evidentiary hearing; rather, Rule 7 was enacted to eliminate 19 unnecessary hearings. Rule 7 Advisory Notes, 1976 Adoption ("Authorizing 20 21 expansion of the record will, hopefully, eliminate some unnecessary hearings."); 22 Jamison v. Collins, 291 F.3d 380, 387 (6th Cir. 2002) ("[t]he rule is meant to 23 eliminate unnecessary hearings, not require the expansion of necessary ones") 24 25 (emphasis added). 26 27 28 appropriate," Turner v. Chavez, 586 F.2d 111, 113 (9th Cir. 1978), section
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While Rule 7 gives federal courts the flexibility to expand the record "where

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1 2254(e)(2) of the Anti-terrorism and Effective Death Penalty Act (AEDPA) 2 generally sets the limit on expansion of the record under Rule 7. Holland v. 3 4 Jackson, 124 S.Ct. 2736, 2738 (2004) (per curiam). See Cooper-Smith v. 5 Palmateer, 397 F.3d 1236 (2005) ("The Supreme Court recently made clear in 6 Holland v. Jackson that the conditions of § 2254(e)(2) generally apply to 7 8 Petitioners seeking relief based on new evidence. . . ."). In short, if a prisoner 9 failed to develop the new information in state court due to a lack of diligence,1 in 10 order to expand the habeas record he must satisfy the requirements of § 2254(e)(2) 11 12 by proving: (1) that the underlying habeas claim was based upon a new retroactive 13 rule of constitutional law, or that the factual basis could not have been previously 14 discovered through the exercise of due diligence; and (2) that the facts underlying 15 16 the claim would be sufficient to establish by clear and convincing evidence that, 17 but for constitutional error, no reasonable factfinder would have found the prisoner 18 guilty of the underlying offense. 28 U.S.C. § 2254(e)(2); Holland, 124 S.Ct. at 19 20 2738; Williams v. Taylor, 529 U.S 420, 437 (2000); Cooper-Smith, 397 F.3d at 21 1241­42. 22 The exhaustion requirement of 28 U.S.C. § 2254(b)(1) further limits the 23 24 ability of a prisoner to expand a habeas record. New factual allegations render a 25 ________________________ 26 "Diligence," for this purpose, "depends upon whether [the prisoner] made a reasonable attempt, in light of the information available at the time, to investigate 27 and pursue claims in state court[.]." Cooper-Smith, 397 F.3d at 1241 (quoting Williams v. Taylor, 529 U.S 420, 435 (2000)). 28
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1 habeas claim unexhausted when they fundamentally alter the legal claim that was 2 considered by the state court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986); 3 th 4 Belmontes v. Woodford, 335 F.3d 1024, 1047 (9 Cir. 2002). This is because 5 federal-state comity favors the principle that federal courts should not entertain 6 new evidence that places a claim in a significantly different posture when that 7 8 evidence was never presented to the state courts. Luna v. Cambra, 306 F.3d 954, 9 965 (9th Cir. 2002); Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988). Thus, the 10 Ninth Circuit has repeatedly prohibited the use in federal habeas review of 11 12 evidence that prisoners never presented in state court. See Turner v. Calderon, 281 13 F.3d 851, 894 (9th Cir. 2002) (prohibiting the use in federal court of letters 14 favorable to the prisoner that were not presented to the state court); Wildman v. 15
th 16 Johnson, 261 F.3d 832, 839­40 (9 Cir. 2001) (upholding district court's refusal to

17 consider a letter that had not been presented to the state courts); Correll v. Stewart, 18 137 F.3d 1404, 1412 (9th Cir. 1998) (upholding dismissal of ineffective assistance 19 20 claim for failure to develop the facts in the state court); Brown v. Easter, 68 F.3d 21 1209, 1211­12 (9th Cir. 1995) (precluding expansion of the record to include 22 evidence not presented to the Alaska Supreme Court). 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 to expand the record under Rule 7] 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 mistaken in Holland when it held that § 2254(e)(2) limits the ability of a prisoner In his Motion, Petitioner argues that the United States Supreme Court was

14 to seek habeas relief based upon evidence never presented to the state courts, and 15 16 17 . . . that expansion of the record under Rule 7 [] is governed by the standards of that the Ninth Circuit "erroneously relied on Holland when it held in Cooper-Smith

18 §2254(e)." (First Motion to Expand the Record, at 3.) This Court obviously may 19 20 21 Circuit Court of Appeals. See, e.g., Gordon v. Vasquez, 859 F.Supp. 413, 417 n.8 22 (E.D.Cal. 1994) ("The district court and its adjunct magistrate judges, as 23 24 25 understanding of Supreme Court decisions to the interpretation of those decisions 26 by the Ninth Circuit."). 27 28
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not overrule decisions of either the United States Supreme Court or the Ninth

subordinate entities bound by the rule of precedent, must conform their

1 B. 2 3

PETITIONER IS NOT ENTITLED TO AN EXPANSION OF THE RECORD. Petitioner is seeking to expand the habeas record in this case to include

4 twenty exhibits in connection with Claims 1, 5(B), 6, 21, and 22 of his First 5 Amended Petition. However, as demonstrated below, expansion of the record to 6 include these exhibits is not appropriate. 7 Exhibit 1. 8 9 10 11 declaration, Dr. Cunniff contends that Petitioner "has abnormal physical, 12 intellectual and behavioral features consistent with the effects of prenatal exposure 13 to alcohol." (First Motion to Expand the Record, Exhibit 1, at 2.) Dr. Cunniff's 14 conclusion is not based upon his own physical and mental examinations of 15 16 Petitioner, but instead upon his "review" of photographs of Petitioner and of other 17 second-hand information concerning Petitioner. (Id., at 1.) Petitioner argues that 18 Dr. Cunniff's declaration should be added to the habeas record in connection with 19 20 Claims 1, 5(B), and 6 of his amended petition. 21 22 23 his motion to suppress his statements to police officers was based upon an 24 unreasonable determination of the facts in light of the evidence presented during 25 26 27 Petitioner argues that all his statements were involuntary, due in large part to his 28 alleged fetal alcohol spectrum disorder. (Id., at 33­34, 38.) However, as pointed
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Exhibit 1 is a declaration of Christopher Cunniff, a medical doctor. In his

In Claim 1 of his petition, Petitioner contends that the trial court's denial of

the State court proceedings. (First Amended Habeas Petition, at 32.) Specifically,

1 out in Respondents' answer to the amended habeas petition, Petitioner never 2 argued to the state court that his statements were involuntary because he suffered 3 4 from prenatal exposure to alcohol; in his opening brief on direct appeal to the 5 Arizona Supreme Court, he contended only that his will was overborne because he 6 was fatigued, frightened, and of low intelligence. (See Respondent's Answer, 7 2 8 Exhibit B, at 18­19.) Thus, any arguments based upon prenatal exposure to 9 alcohol in connection with Claim 1 are procedurally defaulted, because: (1) they 10 were never presented to the state courts; (2) consideration of these new arguments 11 12 would fundamentally alter the legal claim that was considered by the Arizona 13 Supreme Court; and (3) Petitioner cannot return to state court to exhaust the new 14 arguments. 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731 15 16 (1991); Vasquez, 474 U.S. at 260; Ariz. R. Crim. P. 32(a). Therefore, since these 17 arguments are precluded and not properly before the Court, they cannot serve as a 18 basis to support the addition of Exhibit 1 to the habeas record. Moreover, 19 20 preclusion of this portion of underlying claim notwithstanding, expansion of the 21 habeas record with respect to this claim is also not appropriate because Exhibit 1 22 has no relevance to the claim--even if Petitioner suffers from prenatal exposure to 23 24 alcohol, that fact alone does not make it more probable than not that his statements 25 26
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Similarly, during the suppression hearing before trial, Petitioner never argued that 27 his statements were involuntary due to his alleged fetal alcohol spectrum disorder. (See R.T. 7/25/97, at 69­72, 76­77; R.T. 11/24/97, at 4­25, 36­41, 47­61.) 28
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1 were involuntary.3 There is no evidence in the record that officers engaged in any 2 coercive activities in questioning Petitioner,4 and Dr. Cunniff does not contend that 3 4 the alleged affliction would have rendered Petitioner unable to voluntarily agree to 5 speak to officers. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("coercive 6 police activity is a necessary predicate to the finding that a confession is not 7 8 `voluntary' within the meaning of the Due Process Clause of the Fourteenth 9 Amendment"); United States v. Turner, 926 F.2d 883, 888 (9th Cir. 1991) ("a 10 defendant's mental state alone does not make a statement involuntary"). 11 12 In Claim 5(B), Petitioner contends that that his trial counsel was ineffective

13 at the guilt phase because he failed to timely retain a mental health expert; in Claim 14 6 he argues that trial counsel was ineffective for failing to investigate and present 15 16 evidence that he allegedly suffers from fetal alcohol spectrum disorder. However, 17 as pointed out in Respondents' answer to Petitioner's amended habeas petition, 18 Petitioner waived these claims below by failing to argue them in the body of his 19
5 20 state court briefs. Thus, Claims 5(B) and 6 are procedurally defaulted because:

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Relevant evidence is evidence which has a "tendency to make the existence of 23 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. 24 4 Petitioner also does not argue, nor is there anything in the record to suggest, that 25 the questioning officers knew or should have known that Petitioner allegedly suffered from prenatal alcohol spectrum disorder, or any other mental condition, 26 that might have affected the constitutional voluntariness of his statements. 27 28 In his Traverse, Petitioner points out that these claims were listed in a supplement to Petitioner's original petition for review. However, Petitioner presented no
(continued ...)
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1 (1) they were never presented to the Arizona Supreme Court in a procedurally 2 correct manner; and (2) Petitioner cannot return to state court to exhaust them. 28 3 4 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 5 Coleman, 501 U.S. at 731 (1991); Ariz. R. Crim. P. 32(a). Because these claims 6 are procedurally defaulted, they cannot support expansion of the record to include 7 8 Exhibit 1. Regardless, even if the claims were not waived, they still cannot serve 9 as a basis to include Exhibit 1 into the habeas record, because Petitioner never 10 raised any arguments in the state courts concerning fetal alcohol spectrum disorder 11 12 in connection with the claims, and therefore those new arguments, which 13 fundamentally change the nature of the claims, are also procedurally defaulted, and 14 likewise cannot serve as a basis for including Exhibit 1 in the habeas record. 28 15 16 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. at 731 (1991); Vasquez, 474 U.S. at 17 260; Ariz. R. Crim. P. 32(a). 18 19 20 21 22 23
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argument concerning these claims in the body of that supplement, or in the body of 24 his original petition for review, and instead merely referred to the arguments contained in an appendix to his original petition for review. As noted in 25 Respondents' answer to Petitioner's amended habeas petition, under Arizona law, a claim must be argued in the body of a brief; merely referring to the claim in the 26 brief, or arguing it in a footnote or in an appendix, results in waiver. State v. Miller, 186 Ariz. 314, 323, 921 P.2d 1151, 1160 (1996); State v. Kemp, 185 Ariz. 27 52, 57, 912 P.2d 1281, 1286 (1996); State v. Walden, 183 Ariz. 595, 605, 905 P.2d 974, 984 (1995). 28
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Procedural default of the underlying claims6 and relevancy concerns notwithstanding, Petitioner failed to diligently develop this new factual

4 information concerning his alleged fetal alcohol spectrum disorder in the Arizona 5 courts. Despite Petitioner's arguments to the contrary, the fact that he raised other 6 ineffectiveness claims during his post-conviction relief proceedings, and may have 7 8 requested a hearing on those claims, does not demonstrate diligence. Ariz. R. 9 Crim. P. 32.5 (PCR petition must include "every ground known to [petitioner]", 10 and supporting "[a]ffidavits, records, or other evidence currently available to 11 12 [petitioner] must be appended to petition."). See State v. Conner, 163 Ariz. 97, 13 100, 786 P.2d 948, 951 (1990) (petitioner precluded from raising different 14 ineffective assistance of counsel claims in successive PCR petition); Carriger v. 15
th 16 Lewis, 971 F.2d 329, 333 (9 Cir. 1992) (properly raising one claim of ineffective

17 assistance of counsel in state court does not preserve other claims of ineffective 18 assistance for federal habeas review). See also Baja v. Ducharme, 187 F.3d 1075, 19
th 20 1079 (9 Cir. 1999) ("State law not only permitted but required Baja to come

21 forward with affidavits or other evidence, to the extent that his claim relied on 22 ________________________ 23 24 25 26 27 28
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Petitioner cannot rely upon ineffective assistance of counsel as "cause" to excuse either the procedural default of Claims 5(B) and 6, or the procedural default of his new 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 the 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)).

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1 evidence outside the trial record. . . . He therefore failed to develop the factual 2 basis of his claim in state court proceedings within the meaning of 28 U.S.C. 3 4 §2254(e)."). Similarly, Petitioner's contention that his failure to develop this new 5 factual information can be excused due to the alleged ineffectiveness of his trial 6 counsel is contrary to United States Supreme Court precedent. In determining 7 8 whether a prisoner failed to diligently present new information to the state courts, 9 any lack of diligence on the part of a prisoner's attorney is imputed to the prisoner. 10 Williams, 529 U.S. at 432 ("a failure to develop the factual basis of a claim is . . . 11 12 established . . . [if] there is [a] lack of diligence, or some greater fault, attributable 13 to the prisoner or the prisoner's counsel") (emphasis added). 14 Thus, because Petitioner did not exercise diligence in developing this new 15 16 factual information in the Arizona courts, he is not entitled to expansion of the 17 record to include Exhibit 1 unless he satisfies the two-prong requirement of 18 §2254(e)(2): (1) he must demonstrate either that the underlying claims rely on a 19 20 new, retroactive rule of constitutional law, or that the new information could not 21 have been previously discovered through the exercise of due diligence; and (2) he 22 must prove that the new information would establish by clear and convincing 23 24 evidence that, but for the alleged constitutional error, no reasonable factfinder 25 26 27 28 Holland, 124 S.Ct. at 2738; Cooper-Smith, 397 F.3d at 1241­42. With regard to the first requirement of § 2254(e)(2), Petitioner does not
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would have found him guilty of the underlying offense. 28 U.S.C. § 2254(e)(2);

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1 contend that any of the underlying claims rely upon a new rule of constitutional 2 law, and he fails to argue, much less prove, why the new information concerning 3 4 his alleged fetal alcohol spectrum disorder could not have been previously 5 discovered through the exercise of due diligence--in fact, in his affidavit, Dr. 6 Cunniff states that fetal alcohol syndrome was "first described" in 1973, nearly 7 8 three decades before Petitioner filed his 2002 petition for post-conviction relief. 9 (First Motion to Expand the Record, Exhibit 1, at 1.) Additionally, Petitioner fails 10 to meet the second requirement of § 2254(e)(2), because he fails to prove that this 11 12 new information would establish by clear and convincing evidence that but for the 13 alleged constitutional error, no reasonable factfinder would have found him guilty 14 of the underlying offense. 15 16 Finally, Petitioner argues that because Exhibit 1 "satisfies Rule 7's sole

17 requirement of relevancy," it should be added to the habeas record to assist the 18 Court in determining whether to grant Petitioner an evidentiary hearing on Claims 19 20 1, 5(B), and 6. (First Motion to Expand the Record, at 13.) However, as discussed 21 previously, relevancy is not the "sole requirement" in determining whether 22 expansion of the habeas record under Rule 7 is appropriate. Before the relevancy 23 24 of new factual information is even considered, a habeas court must first determine 25 26 27 even subject to habeas relief. See 28 U.S.C. § 2254(a), (b). Moreover, even if the 28 new information is relevant to an underlying claim properly raised before a habeas
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whether the underlying claim or claims are properly before it, and whether they are

1 court, if the prisoner failed to exercise diligence in developing the information in 2 the state courts, expansion of the habeas record is still not appropriate unless the 3 4 requirements of § 2254(e)(2) are met. Holland, 124 S.Ct. at 2738; Cooper-Smith, 5 397 F.3d at 1241­42.7 6 Expansion of the habeas record to include Exhibit 1 is inappropriate 7 8 because: (1) the underlying claims and/or arguments upon which Petitioner is 9 relying are procedurally defaulted and not properly before the Court; (2) Exhibit 1 10 is not relevant to the determination of the merits of Claim 1; and (3) Petitioner fails 11 12 to meet the requirements of § 2254(e)(2). 13 14 15 Exhibit 2 is a declaration by Petitioner's mother, in which she states that she 16 "drank a lot of fortified wine . . . and continued to drink fortified wine at least 17 through the first three months of [her] pregnancy with [Petitioner]." (First Motion 18 to Expand the Record, Exhibit 2, at 1.) The declaration goes on to relate that 19 20 Petitioner was "very slow to learn to crawl and walk and speak," that when he 21 learned to walk he "would drag his left foot behind him," that "he had a lisp and a 22 stutter," and that he suffered from fainting spells and ear infections. (First Motion 23 24 to Expand the Record, Exhibit 2, at 1­2.) 25 26
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Exhibit 2.

Throughout his motion, Petitioner continues to mistakenly argue that relevancy is 27 the "sole requirement" in determining whether to allow expansion of the habeas record under Rule 7. 28
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1 2 3

Petitioner contends that Exhibit 2 is relevant to habeas Claims 1, 5(B), and 6. However, as discussed previously, Claims 5(B) and 6 are procedurally defaulted

4 because they were waived under Arizona law, and Petitioner's new arguments 5 concerning fetal alcohol spectrum disorder are procedurally defaulted because they 6 were never raised below. Thus, neither can serve as a foundational basis to add 7 8 Exhibit 2 to the habeas record. 9 10 11 suggest that the officers engaged in any coercive activities in questioning 12 Petitioner, or that the officers knew, or should have known, that Petitioner was 13 suffering from any mental condition that could have affected the voluntariness of 14 his statement, Exhibit 2 is not relevant to Claim 1. Connelly, 479 U.S. at 167 15 16 ("coercive police activity is a necessary predicate to the finding that a confession is 17 not `voluntary'"); Turner, 926 F.2d at 888 ("a defendant's mental state alone does 18 not make a statement involuntary"). Moreover, with respect to all three habeas 19 20 claims, Exhibit 2, which is a declaration by Petitioner's mother, is obviously self21 serving, and fails to quantify the amount of alcohol she allegedly ingested while 22 pregnant, other than to state that she drank "a lot" of fortified wine. Therefore it is 23 24 of dubious evidentiary value, at best. See Ariz. R. Evid. 401 (evidence is relevant 25 26 27 probable than it would be without the evidence). Furthermore, because Petitioner 28 failed to diligently develop any information relating to his alleged prenatal alcohol
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Procedural default notwithstanding, because there is nothing in the record to

only if it has a tendency to make the existence of a consequential fact more or less

1 spectrum disorder in the state courts,8 he is not entitled to expansion of the record 2 to include Exhibit 2 unless he satisfies the two-prong requirement of § 2254(e)(2). 3 4 Petitioner has failed to do so, because: (1) he does not contend that any of the 5 underlying claims rely upon a new rule of constitutional law, nor does he argue, 6 much less prove, why the new information concerning his alleged fetal alcohol 7 8 spectrum disorder could not have been previously discovered through the exercise 9 of due diligence; and (2) he fails to prove that this new information would establish 10 by clear and convincing evidence that, but for the alleged constitutional error, no 11 12 reasonable factfinder would have found him guilty of the underlying offense. 13 14 15 Exhibits 3­8 are copies of undated photographs of Petitioner, and Exhibit 9 16 consists of photocopies of Petitioner's records from WestCare Boys' Residential 17 Rehabilitation Center. Petitioner argues that these exhibits should be added to the 18 habeas record in connection with Claims 1, 5(B), and 6 because they provided 19 20 "part of the basis for Dr. Cunniff's opinion [Exhibit 1] that Petitioner suffers from 21 [fetal alcohol spectrum disorder]." (First Motion to Expand the Record, at 14.) 22 Contrary to Petitioner's contention, expansion of the record to include these 23 24 exhibits is not appropriate because: 25 ________________________ 26 As discussed previously, the initial diligence threshold of § 2254(e)(2) is not satisfied by requesting a hearing on different ineffectiveness claims, nor is it 27 excused by ineffective assistance of counsel. Ariz. R. Crim. P. 32.5; Conner, 163 Ariz. at 100, 786 P.2d at 951; Baja, 187 F.3d at 1079; Williams, 529 U.S. at 432. 28
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Exhibits 3-9.

(1) Claims 5(B) and 6 are procedurally

1 defaulted because they were waived pursuant to Arizona law; (2) the new 2 arguments Petitioner is raising for the first time relating to fetal alcohol spectrum 3 4 disorder are procedurally defaulted because they were never presented to the state 5 courts; (3) Exhibits 3­9 are not relevant to Claim 1, because they do not suggest 6 that the officers acted coercively, or that the officers knew, or should have known, 7 9 8 that Petitioner allegedly suffered from fetal alcohol spectrum disorder; and (4) 9 Petitioner fails to meet the requirements of §2254(e)(2),10 because: (1) he does not 10 contend that any of the underlying claims rely upon a new rule of constitutional 11 12 law, nor does he argue, much less prove, why the new information concerning his 13 alleged fetal alcohol spectrum disorder could not have been previously discovered 14 through the exercise of due diligence; and (2) he fails to prove that this new 15 16 information would establish by clear and convincing evidence that, but for the 17 alleged constitutional error, no reasonable factfinder would have found him guilty 18 of the underlying offense. 19 20 ________________________ 21 22 23 24 25 26 27 28
9

See Connelly, 479 U.S. at 167; Turner, 926 F.2d at 888.

As noted previously, Petitioner failed to exercise diligence in developing this new information in the state courts. This initial diligence threshold of § 2254(e)(2) is not satisfied by requesting a hearing on different ineffectiveness claims, nor is it excused by ineffective assistance of counsel. Ariz. R. Crim. P. 32.5; Conner, 163 Ariz. at 100, 786 P.2d at 951; Baja, 187 F.3d at 1079; Williams, 529 U.S. at 432. By failing to meet this initial diligence requirement, expansion of the record is not appropriate unless Petitioner meets the conditions of § 2254(e)(2). Holland, 124 S.Ct. at 2738; Williams v. Taylor, 529 U.S 420, 437 (2000); Cooper-Smith, 397 F.3d at 1241­42.
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1 2 3

Exhibit 10. Exhibit 10 is a copy of a memorandum from Petitioner's investigator to his

4 trial counsel, concerning "drug & alcohol fetal cell damage . . . reflecting how 5 these chemicals when taken in the first trimester effect subsequent intelligence, 6 conduct, emotions, urges etc as the child grows into adulthood." (First Motion to 7 8 Expand the Record, Exhibit 10, at 1.) Petitioner contends that this exhibit is 9 relevant to habeas Claim 6. 10 Expansion of the habeas record to include Exhibit 10 is not appropriate. As 11 12 discussed previously, Claim 6 is procedurally defaulted because Petitioner waived 13 it under Arizona law. Additionally, in his ineffectiveness claim as presented to the 14 Arizona courts, Petitioner did not argue that his trial counsel was ineffective for 15 16 failing to investigate and present evidence concerning his alleged fetal alcohol 17 spectrum disorder and drug use; rather, he argued that counsel was ineffective for 18 failing to investigate and present evidence of the alleged physical and 19 20 psychological abuse he suffered during childhood, and for failing to link that 21 alleged abuse to his subsequent murderous acts. (See Exhibit J to Respondents' 22 Answer to Amended Petition for Writ of Habeas Corpus, at 23­34.) Thus, because 23 24 no arguments concerning Petitioner's alleged fetal alcohol spectrum disorder and 25 26 27 ineffective assistance of counsel claims, these new arguments, which 28 fundamentally alter the legal claims that were considered by the state courts, are
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his drug addiction were presented to the state courts in connection with his

1 precluded, and therefore cannot support the addition of the exhibit to the record. 2 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. at 731 (1991); Vasquez, 474 U.S. at 3 4 260; Ariz. R. Crim. P. 32(a). Preclusion notwithstanding, because Petitioner failed 5 to diligently develop this new information in the state courts,11 Exhibit 10 should 6 not be added to the habeas record unless Petitioner first meets the requirements of 7 8 §2254(e)(2). Petitioner has failed to do so, because he does not contend that any of 9 the underlying claims rely upon a new rule of constitutional law, he fails to prove 10 why the new information could not have been previously discovered through the 11 12 exercise of due diligence, and he fails to prove that this new information would 13 establish by clear and convincing evidence that, but for the alleged constitutional 14 error, no reasonable factfinder would have found him guilty of the underlying 15 16 offense. 17 18 19 Exhibit 11 is a copy of a letter from Petitioner's investigator to his trial 20 attorney, suggesting that "one of the significant issues should be the hard core drug 21 abuse of both parents, preconception and in the first trimester of Ruth's 22 [Petitioner's mother] pregnancy with [Petitioner]." (First Motion to Expand the 23 24 Record, Exhibit 11, at 1.) The investigator goes on to conclude that "Ruth Garcia's 25 26 27 28 heavy drug abuse in the pre pregnancy and early on in the pregnancy undoubtedly
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Exhibit 11.

See note 10.
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1 caused severe damage to her unborn child." (Id.) Petitioner contends that Exhibit 2 11 should be included in the habeas record in connection with Claim 6. 3 As previously discussed, Claim 6 was waived pursuant to Arizona law. 4 5 Additionally, Petitioner never argued to the state courts that his trial counsel was 6 ineffective for failing to investigate and present evidence concerning his alleged 7 8 prenatal exposure to illegal drugs. (See Exhibit J to Respondents' Answer to 9 Amended Petition for Writ of Habeas Corpus, at 23­34.) Thus, Claim 6, and any 10 arguments based upon his alleged prenatal exposure to illegal drugs, are precluded 11 12 and not properly before this Court, and therefore cannot support the inclusion of 13 this exhibit into the record. 28 U.S.C. § 2254(b)(1)(A); Boerckel, 526 U.S. at 842; 14 Coleman, 501 U.S. at 731 (1991); Vasquez, 474 U.S. at 260; Ariz. R. Crim. P. 15 16 32(a). Additionally, because Petitioner failed to diligently develop the new

17 information in the state courts,12 he must meet the conditions of §2254(e)(2) before 18 Exhibit 11 can be included into the record. He has failed to do so, because he does 19 20 not contend that any of the underlying claims rely upon a new rule of constitutional 21 law, he fails to argue, much less prove, why the new information could not have 22 been previously discovered through the exercise of due diligence, and he fails to 23 24 prove that this new information would establish by clear and convincing evidence 25 26 27 28 that but for the alleged constitutional error, no reasonable factfinder would have
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See note 10.
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1 found him guilty of the underlying offense. 2 Exhibits 12­16. 3 Exhibits 12­16 are copies of various articles concerning fetal alcohol 4 5 spectrum disorder. Petitioner is seeking to include these exhibits into the record in 6 connection with habeas Claims 1, 5(B), and 6. 7 Contrary to Petitioner's arguments, Exhibits 12­16 should not be included 8 9 into the habeas record because: (1) Claims 5(B) and 6 are procedurally defaulted 10 because they were waived in state court; (2) any arguments in Claims 1, 5(B), and 11 12 6 relating to fetal alcohol spectrum disorder are also procedurally defaulted, 13 because they were not raised in state court; (3) Exhibits 12­16 are not relevant to 14 Claim 1, because they do not suggest that the officers acted coercively, or that the 15 16 officers knew, or should have known, that Petitioner allegedly suffered from fetal 17 alcohol spectrum disorder;13 and (4) Petitioner fails to meet the requirements of 18 §2254(e)(2),14 because he does not contend that any of the underlying claims rely 19 20 upon a new rule of constitutional law, he fails to prove why the new information 21 concerning his alleged fetal alcohol spectrum disorder could not have been 22 previously discovered through the exercise of due diligence,15 and he fails to prove 23 24 ________________________ 25 26 27 28
13 14 15

See Connelly, 479 U.S. at 167; Turner, 926 F.2d at 888. See note 10.

Exhibits 12, 13, 14, and 16 were published in 1995, 1996, 2000, and 1997, respectively, prior to the 2002 filing of Petitioner's petition for post-conviction
(continued ...)

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1 that this new information would establish by clear and convincing evidence that 2 but for the alleged constitutional error, no reasonable factfinder would have found 3 4 him guilty of the underlying offense. 5 6 7 Exhibit 17. Exhibit 17 is a copy of an article entitled "Psychopathological Effects of

8 Solitary Confinement," which Petitioner argues should be included into the record 9 in connection with habeas Claim 21. In Claim 21, Petitioner contends that his 10 execution after 7 years on death row would violate the Eighth Amendment's 11 12 prohibition against cruel and unusual punishment. 13 14 15 The record should not be expanded to include Exhibit 17. Petitioner admits that he failed to raise the claim before the Arizona courts,16 and because he cannot

16 return to the state courts to properly present it, the claim is procedurally defaulted. 17 28 U.S.C. § 2254(b)(1)(A); Coleman, 501 U.S. at 731 (1991); Ariz. R. Crim. P. 18 32(a). Thus, because the defaulted claim is not subject to the Court's jurisdiction, 19 20 it cannot serve as a basis for expanding the record to include Exhibit 17. 21 22 23 exhaustion doctrine due to the fact that it was "never ripe for adjudication in the 24 Arizona courts because the factual basis . . . did not exist while Petitioner's case 25
________________________ ( ... continued)

In his traverse, Petitioner argues that this claim is not subject to the

relief, and thus could have been utilized in those proceedings had Petitioner 26 exercised diligence in presenting evidence concerning his alleged prenatal alcohol spectrum disorder to the Arizona courts. 27 16 (See First Amended Habeas Petition, at 111.) 28
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1 was pending there. (Traverse, at 65.) Petitioner is mistaken. The fact that 2 Petitioner might spend an extended period of time on death row was foreseeable 3 4 during the pendency of his state cases. By the time the Arizona Supreme Court 5 affirmed his convictions and sentences on direct appeal, Petitioner had already 6 been on death row for more than 1½ years; by the time he filed his petition for 7 8 post-conviction relief, Petitioner had been on death row for 3½ years. The fact that 9 the state courts might not have granted relief on the claim does not exempt 10 Petitioner from the exhaustion requirement. Roberts v. Arave, 847 F.2d 528, 530 11
th 12 (9 Cir. 1982) ("[T]he apparent futility of presenting claims to state courts does not

13 constitute cause for procedural default.") (citing Engle v. Isaac, 456 U.S. 107, 130 14 (1982)). 15 16 Procedural default notwithstanding, expansion of the record to include

17 Exhibit 17 is not appropriate because the underlying claim is not recognized as a 18 basis for federal habeas relief. The United States Supreme Court has never held 19 20 that an extended period of incarceration on death row constitutes cruel and unusual 21 punishment, and therefore the claim is not properly before the Court. Dows v. 22 Wood, 211 F.3d 480, 486 (9th Cir. 2000) (a habeas court is "without the power" to 23 24 extend the law beyond Supreme Court precedent). Additionally, the law of the 25 26 27 Circuit is that extended periods of incarceration on death row do not constitute cruel and unusual punishment. McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir.

28 1995).
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1 2 3

Regardless, the record should also not be expanded to include Exhibit 17 because Petitioner fails to meet the conditions of §2254(e)(2)17--he does not

4 contend that Claim 21 relies upon a new rule of constitutional law, he fails to 5 argue, much less prove, why the new information could not have been previously 6 discovered through the exercise of due diligence,18 and he fails to prove that this 7 8 new information would establish by clear and convincing evidence that but for the 9 alleged constitutional error, no reasonable factfinder would have found him guilty 10 of the underlying offense. 11 12 13 14 15 that Texas' lethal injection procedure, which utilizes pancuronium bromide and 16 sodium thiopental, subjects prisoners to a "risk of excessive suffering." (First 17 Motion to Expand the Record, Exhibit 18, at 2.) Exhibit 19 is a copy of an 18 affidavit by a layperson named Carol Weihrer, who claims that although she 19 20 "underwent an eye operation in which full general anesthesia was administered," 21 she "was able to think lucidly, hear, perceive and feel everything that was going on 22 during the surgery. . . ." (First Motion to Expand the Record, Exhibit 19, at 1.) 23
________________________
17 18

Exhibits 18­20. Exhibit 18 is a copy of an affidavit by Dr. Mark Heath, in which he contends

24 25

See Note 10.

Exhibit 17 was published in 1983, 17 years before the Arizona Supreme Court 26 affirmed Petitioner's convictions and sentences on direct appeal, and 19 years before Petitioner filed his petition for post-conviction relief. Thus, Petitioner could 27 have developed this information during his state court proceedings had he exercised diligence. 28
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1 Exhibit 20 is a copy of an affidavit by Dr. Dennis Geiser, a professor of veterinary 2 science, who relates that pancuronium bromide and sodium thiopental are not 3 4 proper substances to be used in the euthanasia of animals. (Exhibit 20, at 1­2.) 5 Petitioner contends that these exhibits should be included in the record in support 6 of habeas Claim 22, in which he argues that his execution by lethal injection would 7 8 violate his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 9 Petitioner waived this claim argument under Arizona law, because he failed to 10 argue the claim in the body of his state brief. 19 Thus, because Petitioner failed to 11 12 raise the claim in a procedurally correct manner before the Arizona courts, and 13 because he cannot return to the state courts to litigate it, the claim is procedurally 14 defaulted. 28 U.S.C. § 2254(b)(1)(A); Boerckel, 526 U.S. at 842­48; Coleman, 15 16 501 U.S. at 731 (1991); Ariz. R. Crim. P. 32(a). 17 18 19 into the record because the underlying claim is subject to summary dismissal. The 20 United States Supreme Court has never held that execution by lethal injection 21 22
________________________
19

Procedural default notwithstanding, these exhibits should not be included

In his Traverse, Petitioner correctly points out that this claim was listed in a 23 supplement to Petitioner's original petition for review. However, Petitioner presented no argument concerning this claim in the body of that supplement, or in 24 the body of his original petition for review, and instead merely referred to the arguments contained in an appendix to his original petition for review. As noted in 25 Respondents' answer to Petitioner's amended habeas petition, under Arizona law, a claim must be argued in the body of a brief; merely referring to the claim in the 26 brief, or arguing it in a footnote or in an appendix, results in waiver. Miller, 186 Ariz. at 323, 921 P.2d at 1160; Kemp, 185 Ariz. at 57, 912 P.2d at 1286; Walden, 27 183 Ariz. at 605, 905 P.2d at 984. 28
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1 violates the Eighth Amendment, and this Court cannot expand federal habeas 2 jurisdiction beyond United States Supreme Court precedent. Dows, 211 F.3d at 3 4 486. Moreover, the law of this Circuit is that execution by lethal injection does not 5 violate the Eighth Amendment. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 6 1997); LaGrand v. Stewart, 133 F.3d 1253, 1264­65 (9th Cir. 1998); Poland v. 7 th 8 Stewart, 117 F.3d 1094, 1105 (9 Cir. 1997). 9 10 11 include Exhibits 18­20 because Petitioner fails to meet the requirements of
20 12 §2254(e)(2) --he does not contend that Claim 21 relies upon a new rule of

Cognizability notwithstanding, the record should also not be expanded to

13 constitutional law, he fails to argue, much less prove, why the new information 14 could not have been previously discovered through the exercise of due diligence, 15 16 and he fails to prove that this new information would establish by clear and 17 convincing evidence that but for the alleged constitutional error, no reasonable 18 factfinder would have found him guilty of the underlying offense. Additionally, 19 20 Exhibit 19, which concerns a layperson's experience with general anesthesia, and 21 Exhibit 20, which concerns the euthanasia of animals, have little, if any, relevancy 22 to the underlying habeas claim. 23 24 C. 25 26 27 28 CONCLUSION Respondents respectfully request the Court to deny Petitioner's First Motion
________________________
20

See Note 10
25 Filed 10/17/2005

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1 to Expand the Record, because, as shown above: (1) either the underlying habeas 2 claims or arguments are not properly before this Court, or are not subject to federal 3 habeas relief; (2) the exhibits are not relevant to the underlying claims; or 3) 4 Petitioner failed to properly develop the new information during his state court 5 proceedings, and has subsequently failed to meet the requirements of 28 U.S.C. 6 §2254(e)(2). 7 8 9 10 11 12 13 14 15 16 I hereby certify that on October 17, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 17 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 18 JON M. SANDS Federal Public Defender 19 MICHAEL L. BURKE Assistant Federal Public Defender 20 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 21 Attorney for Petitioner 22 23 24 s/ J. D. Nielsen
s/ J. D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

DATED this 17th day of October, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

CRM98-1682 25 122624 26 27 28
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