Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Jon M. Sands Federal Public Defender Michael L. Burke Assistant Federal Public Defender 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] Arizona Bar No. 013173 (602) 382-2816 (602) 889-3960 facsimile Counsel for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, vs. Dora Schriro, et al., Respondents. No. CIV-04-0534-PHX-NVW DEATH PENALTY CASE Petitioner's First Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2254 Cases

Pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts and this Court's procedural orders of March 29, 2004, May 19, 2004, and August 10, 2005 [District Court Docket Entry Numbers ("Doc. Nos.") 4, 15, and 38 ], Petitioner Robert Allen Poyson hereby moves the Court for an order expanding the record in this case as specified herein. The reasons for this motion are set forth in the attached Memorandum in Support. Respectfully submitted this 19th day of September, 2005. Jon M. Sands Federal Public Defender Michael L. Burke s/ Michael L. Burke Counsel for Petitioner

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Jennifer A. Cody Jennifer A. Cody Senior Legal Secretary Capital Habeas Unit

Certificate of Service I hereby certify that on September 19, 2005, I electronically transmitted the attached document to the Clerk's Office Using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: J.D. Nielsen Assistant Attorney General Attorney General's Office

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Jon M. Sands Federal Public Defender Michael L. Burke Assistant Federal Public Defender 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] Arizona Bar No. 013173 (602) 382-2816 (602) 889-3960 facsimile Counsel for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, vs. Dora Schriro, et al., Respondents. No. CIV-04-0534-PHX-NVW DEATH PENALTY CASE Memorandum in Support of Petitioner's First Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2254 Cases

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Table of Contents I. Legal Standard for Expanding the Record under Rule 7 . . . . . . . . . . . . . . . . . . 1 A. General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Holland, Cooper-Smith, and Rule 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Cooper-Smith is contrary to the plain meaning, as well as the context, of the rules governing § 2254 cases . . . . . . . . . . . . . . 3 2. In Vasquez v. Hillary, the United States Supreme Court upheld the use of Rule 7 to elaborate on the petitioner's claims, regardless of the right to an evidentiary hearing . . . . . . . . . . 4 3. Congress did not impliedly amend Rule 7 when it enacted the AEDPA. This is evident because recent amendments to the habeas rules made no substantive change to Rule 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4. The Ninth Circuit's decision is not mandated by Holland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5. The misconstruction Of Holland led to dissonance in the Supreme Court's recent opinion in Miller-El regarding evidence presented without objection before the federal district court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Petitioner did not fail to develop in state court the factual bases of the claims for which he now seeks to expand the record . . . . . . . . . . . . . . . 9 II. Expansion of the Record in this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Exhibit 1 ­ Declaration of Christopher Cunniff, M.D. . . . . . . . . . . . . . . . . 11 Exhibit 2 ­ Declaration of Ruth Garcia . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Exhibits 3 through 8 ­ undated photographs of Petitioner from infancy through adolescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Exhibit 9 ­ Petitioner's records from West Care Boys' Residential Drug Rehabilitation Center, Las Vegas, Nevada . . . . . . . . . . . . . . . . . . . . . . . . . 14 Exhibit 10 ­ Memorandum from Blair Abbott to Billy Sipe and Lee Novak, dated September 16, 1998, regarding "Mitigation Issues" . . . . . . 15 Exhibit 11 ­ Letter from Abacus Research & Investigation to defense counsel, dated June 21, 1998, regarding mitigation . . . . . . . . . . . . . . . . . . 15 Exhibit 12- Neurobehavior in Adolescents and Adults, publication of the FAS/E Support Network (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Exhibit 13 ­ Excerpts from Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention, and Treatment, (1996) . . . . . . . . . . . . . . . . . . 17
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Exhibit 14 ­ Ann P. Streissguth and Kieran O'Malley, Neuropsychiatric Implication and Long-Term Consequences of Fetal Alcohol Spectrum Disorders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Exhibit 15 ­ Timothy E. Moore, Ph.D. and Melvyn Green, Fetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System, 19 C.R. (6th) (2004) . . . . . . . . . . . . . . . . . . . . . . 18 Exhibit 16 ­ Jeanice Dagher-Margosian, Representing the FAS Client in a Criminal Case, excerpted from A.P. Streissguth and J. Kanter (eds.) The Challenge of Fetal Alcohol Syndrome: Overcoming Secondary Disabilities (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Exhibit 17 ­ Stuart Grassian, M.D., Psychopathological Effects of Solitary Confinement, Am. J. Psychiatry 140:1 (Nov. 1983) . . . . . . . . . . . 19 Exhibit 18 ­ Affidavit of Dr. Mark Heath in Texas v. Jesus Flores (No. 877994A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Exhibit 19 ­ Affidavit of Carol Weihrer in Texas v. Jesus Flores (No. 877994A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Exhibit 20 ­ Affidavit of Dr. Dennis Geiser, D.V.M. in Texas v. Jesus Flores (No. 877994A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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Jon M. Sands Federal Public Defender Michael L. Burke Assistant Federal Public Defender 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] Arizona Bar No. 013173 (602) 382-2816 (602) 889-3960 facsimile Counsel for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen Poyson, Petitioner, vs. Dora Schriro, et al., Respondents. No. CIV-04-0534-PHX-NVW DEATH PENALTY CASE Memorandum in Support of Petitioner's First Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2254 Cases

Petitioner Robert Allen Poyson hereby requests that the Court issue an order, pursuant to Rule 7 of the Rules Governing Section 2254 Cases ("Rule 7"), expanding the record in this case to include the exhibits specified herein. As set forth more fully below, these additional exhibits support Claims One, Five, Six, Twenty-One and Twenty-Two of Petitioner's First Amended Petition. I. LEGAL STANDARD FOR EXPANDING THE RECORD UNDER RULE 7 A. GENERAL PRINCIPLES Pursuant to Rule 7, the Court may allow a party to supplement the state court record with materials relevant to the Court's resolution of the habeas corpus petition. Rule 7 provides in relevant part: (a) Direction for expansion. If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional
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materials relevant to the determination of the merits of the petition. (b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as part of the record. A habeas petitioner "should be allowed to submit additional materials pursuant to Rule 7 in order that [he] may have the opportunity to substantiate [his] contentions." Turner v. Chavez, 586 F.2d 111, 113 (9th Cir. 1978). If the exhibits offered by Petitioner "provide facts relevant to [his] . . . claim[s], they may be accepted into the record for purposes of this § 2254 petition." Cardwell v. Netherland, 971 F. Supp. 997, 1012 (E.D. Va. 1997), aff'd sub nom. Cardwell v. Greene, 152 F.3d 331 (4th Cir. 1998), overruled on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000); Loza v. Mitchell, 2002 WL 31409881 at *1 (S.D. Ohio July 17, 2002) ("[E]xpansion pursuant to Rule 7, under the language of that rule, has only a relevancy limitation. That is, the materials need only be relevant to the determination of the merits of the constitutional claims in order to be added."). Rule 7 affords the Court wide discretion to expand the record to assist it in determining whether an evidentiary hearing is warranted. See, e.g., Blackledge v. Allison, 431 U.S. 63, 81-82 (1977) (stating that discovery and expansion of the record can be tools to avoid the need for an evidentiary hearing); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998) (expansion of the record is appropriate to determine whether an evidentiary hearing is necessary). The importance of this authority is explained in the Advisory Committee Notes to Rule 7: This rule provides that the judge may direct that the record be expanded. The purpose is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing. An expanded record may also be helpful when an evidentiary hearing is ordered. The record may be expanded to include additional materials relevant to the merits of the petition.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B.

*

*

*

Authorizing expansion of the record will, hopefully, eliminate some unnecessary hearings. * * * Unless it is clear from the pleadings and the files and records that the prisoner is entitled to no relief, the statute makes a hearing mandatory. We think there is a permissible intermediary step that may avoid the necessity for an expensive and time consuming evidentiary hearing in every Section 2254 case. It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and, in an appropriate case, even affidavits. Advisory Committee Notes, Rule 7, Rules Governing Section 2254 Cases. HOLLAND, COOPER-SMITH, AND RULE 7 Despite dicta in the United States Supreme Court's ruling in Holland v. Jackson, 542 U.S. 649 (2004), suggesting otherwise, the standard for expansion of the record under Rule 7 is not synonymous with the standard under 28 U.S.C. § 2254(e)(2) for obtaining an evidentiary hearing on a claim the petitioner failed to develop in state court. For the reasons set forth below, Petitioner respectfully submits that the Ninth Circuit erroneously relied on Holland when it held in Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005), that expansion of the record under Rule 7 requires is governed by the standards of § 2254(e). 1. COOPER-SMITH IS CONTRARY TO THE PLAIN MEANING, AS WELL AS THE CONTEXT, OF THE RULES GOVERNING § 2254 CASES. The first step in construction of a rule is its text. Leocal v. Ashcroft, 125 S. Ct. 377, 382 (2004). Rule 7 contains no qualification of the federal court's discretion to expand the record: "If the petition is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition." A rule's meaning can also be discerned from context. Tyler v. Cain, 533 U.S. 656, 662 (2001); Bailey v. United States, 516 U.S. 137, 145 (1995). The context
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establishes that Rule 7 is independent from the right to an evidentiary hearing. The next rule, Rule 8(a), describes the process for determining whether an evidentiary hearing is required, which may depend on the record as expanded by Rule 7: "the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required." The plain meaning of the rule and its context forecloses the panel's position that the district court has no discretion to expand the record unless an evidentiary hearing is required under Rule 8. In the absence of a textual basis for an exception, a federal judge has discretion to expand the record under Rule 7 unconstrained by the requirements for an evidentiary hearing under Rule 8. See United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989) (where the statute is plain, "the sole function of the courts is to enforce it according to its terms."). 2. IN VASQUEZ V. HILLARY, THE UNITED STATES SUPREME COURT UPHELD THE USE OF RULE 7 TO ELABORATE ON THE PETITIONER'S CLAIMS, REGARDLESS OF THE RIGHT TO AN EVIDENTIARY HEARING. In Vasquez v. Hillary, 474 U.S. 254, 259 (1985), the Supreme Court approved the use of Rule 7 to supplement and clarify facts that "introduced no claim upon which the state courts had not passed." There, the district court considered statistical elaboration regarding claims related to systematic exclusion of blacks from the grand jury. As in Vasquez, the petitioner in Cooper-Smith simply sought to clarify and to elaborate on claims previously litigated in the state courts.1 Under the Ninth Circuit's ruling in Cooper-Smith, the District Court in Vasquez would have been powerless to gather the additional information establishing the discrimination that rendered the conviction unconstitutional. In Vasquez, the Court viewed expansion of the record under Rule 7 as Vasquez, 474 U.S. at 260 ("[T]he supplemental evidence presented by respondent did not fundamentally alter the legal claim already considered by the state courts.").
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completely separate from an evidentiary hearing: We have never held that presentation of additional facts to the district court, pursuant to that court's directions, evades the exhaustion requirement when the prisoner has presented the substance of his claim to the state courts. See Picard [v. Connor, 404 U.S. 270, 278 (1971).] Rule 7(b) permits a federal district court in a habeas proceeding to expand the existing record to `include, without limitation, . . . documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.' In this case, the District Court sought to clarify the relevant facts, an endeavor wholly consistent with Rule 7 and the purpose of the writ. See Townsend v. Sain, 372 U.S. 293, 313 . . . (1963). Vasquez, 474 U.S. at 257-258. Congress intended, and the courts understood, that expansion of the record under Rule 7 was a different procedure governed by different standards than for an evidentiary hearing under Rule 8. 3. CONGRESS DID NOT IMPLIEDLY AMEND RULE 7 WHEN IT ENACTED THE AEDPA. THIS IS EVIDENT BECAUSE
RECENT AMENDMENTS TO THE HABEAS RULES MADE NO SUBSTANTIVE CHANGE TO RULE 7.

Absent a clearly expressed congressional intention, repeals by implication are not favored. Branch v. Smith, 538 U.S. 254, 273 (2003). An implied repeal will only be found where provisions in two statutes are in "irreconcilable conflict," or where the later act "covers the whole subject of the earlier one and is clearly intended as a substitute." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). Congress did not change any relevant habeas rules when it enacted the AEDPA, evidencing its intent to leave the Rule 7 and Rule 8 procedures as separate and distinct. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988) ("We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts."). The continued integrity of Rule 7 is reflected in Congress's re-promulgation of Rule 7, effective December 2004. More than eight years after enactment of the AEDPA, Congress reissued the Habeas Rules with only stylistic modifications. With minor word changes from the prior rule, Rule 7 continues to confer discretion on the district court to expand the record regardless of whether an evidentiary hearing is to
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be held.2 And the newly modified Rule 8 expands on some issues but again mandates that any decision to grant an evidentiary hearing is made only after considering the expanded record. The re-issuance of the rules confirms that Congress intended the district court's discretion to expand the record to be separate and distinct from a petitioner's right to an evidentiary hearing.3 Cooper-Smith's imposition of the same legal standard for expansion of the record under Rule 7 as for grant of an evidentiary hearing under Rule 8 renders the adoption of separate rules pointless and violates clear congressional intent. 4. THE NINTH CIRCUIT'S DECISION IS NOT MANDATED BY HOLLAND. The Ninth Circuit's reliance on Holland in Cooper-Smith is wholly misplaced because Rule 7 was simply not at issue in Holland. Rule 7 is not even mentioned in the opinion, which is not surprising because the issue before the Court focused on the right to an evidentiary hearing under Section 2254(e)(2):
2

The new commentary to Rule 7 states: The language of Rule 7 has been amended as part of general restyling of the rules . . . . These changes are intended to be stylistic and no substantive change is intended, except as noted below. Revised Rule 7(a) is not intended to restrict the court's authority to expand the record through means other than requiring the parties themselves to provide the information. Further, the rule has been changed to remove the reference to the "merits" of the petition in recognition that a court may wish to expand the record in order to assist it in deciding an issue other than the merits of the petition.

See McNair v. Haley, 97 F. Supp. 2d 1270, 1280-86 (M.D. Ala. 2000). The court reasoned in McNair that,"[i]f Congress intended to restrict federal habeas review entirely to the state court record unless the requirements of § 2254(e)(2) are met, or if Congress intended to eliminate Rule 7 record expansion in these cases, it could have done so explicitly. Instead, Congress restricted only evidentiary hearings, and this court must `assume that in drafting this legislation, Congress said what it meant.'" McNair, 97 F. Supp. 2d at 1282-83 (citing United States v. LaBonte, 520 U.S. 751, 757 (1997)) (emphasis in original). "Rule 7 has not been supplanted but was instead left intact to function as it always has alongside the revised § 2254." Id. at 1285.
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Under the habeas statute, Gooch's statement could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met. See Williams v. Taylor, 529 U.S. 420, 431-437, 120 S. Ct. 1479 (2000). Those same restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing. See, e.g., Cargle v. Mullin, 317 F.3d 1196, 1209 (C.A.10 2003), and cases cited. Where new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer. See, e.g., Monroe v. Angelone, 323 F.3d 286, 297-299, and n. 19 (C.A.4 2003). Holland, 124 S. Ct. at 2738. Because Holland did not address Rule 7, the opinion has no precedential value on that question. See Texas v. Cobb, 532 U.S. 162, 169 (2001) (precedential weight is not accorded to opinions that did not address the question at issue). Expansive reading of Holland is especially inappropriate because the case was decided without full briefing and argument. See United States v. Booker, 125 S. Ct. 738, 754 n.4 (2005) (lack of full briefing or oral argument militated in favor of narrow reading of precedent). In each of the cases cited by the Court in Holland, the procedure at issue was not a request to expand the record, but was instead a request for an evidentiary hearing--particularly a hearing based on documentary evidence. Williams, 529 U.S. at 427-28 (district court grant of evidentiary hearing, overturned by appellate court, then reinstated by Supreme Court); Cargle, 317 F.3d at 1209 (evidentiary hearing held where "Petitioner also supported some of his allegations, particularly those relating to guilt-phase ineffective assistance, with documentary evidence"); Monroe, 323 F.3d at 297-99 (evidentiary hearing held to consider ten documents containing exculpatory evidence that were not disclosed by the prosecution until discovery granted in federal court). Holland recognized only that an evidentiary hearing in habeas may include both oral testimony and documentary evidence, and that a grant of a hearing on either basis requires compliance with 28 U.S.C. § 2254(e)(2). This conclusion, which is neither new nor unique, is specifically provided for in 28 U.S.C. §§ 2246 and 2247,
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statutes that pre-date the AEDPA. More importantly, this procedure does not involve record expansion under Rule 7. Congress has always been very clear that expanding the record under Rule 7 is a completely separate and distinct procedure from granting an evidentiary hearing under Rule 8. 5. THE MISCONSTRUCTION OF HOLLAND LED TO DISSONANCE IN THE SUPREME COURT'S RECENT OPINION IN MILLER-EL REGARDING EVIDENCE PRESENTED WITHOUT OBJECTION BEFORE THE FEDERAL DISTRICT COURT. As a result of treating Holland's narrow holding regarding a non-Rule 7 case as a universal rule that applies beyond its facts, the federal courts' role in habeas corpus is deeply compromised. The over-reach of Holland's language is illustrated in the Supreme Court's ruling in Miller-El v. Dretke, 125 S. Ct. 2317 (2005). The Court in Miller-El addressed the federal district court's review of challenges to jury composition based on Batson v. Kentucky, 476 U.S. 79 (1986). As in Vasquez, the federal district court accepted further evidence on the exhausted issue of discrimination, this time in the form of jury questionnaires and information cards. The Miller-El majority considered the supplemental material, 125 S.Ct. at 2335 n.15, while the dissent claimed that the broad language of Holland meant that only evidence presented to the state court could be considered, 125 S.Ct. at 2348-50. The Miller-El majority opinion demonstrates that Holland does not have the broad reach the Ninth Circuit erroneously assumed it did when it decided Cooper-Smith. Vasquez, Miller-El and Rule 7 authorize the federal court, in the exercise of its discretion, to accept evidence elaborating on the federal claim. Given the methodology of demonstrating clear factual error in federal habeas, no other rule makes sense. Section 2254(e)(1) states that a petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." A district court must engage in a three-step analysis when determining whether it is bound by the factual findings of a state court:

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1) 2) 3)

Determine whether there was an adjudication on the merits in state court; Determine whether any such adjudication was unreasonable based on the evidence presented to the state court; and Review any new evidence proffered for the first time in federal court to determine whether the petitioner has provided "clear and convincing" evidence that the state court's factual finding was erroneous.

The last step of this process cannot be reconciled with the Ninth Circuit's rule that makes Rule 7 coextensive with Rule 8. Under the Ninth Circuit's opinion in Cooper-Smith, a petitioner can never present additional evidence that was not provided to the state court unless there is also a right to a full evidentiary hearing. 397 F.3d at 1242 (because the petitioner was aware of the "factual predicate" of his claim in state court proceedings, he cannot present additional evidence in support of that claim in federal court). But under § 2254(e)(1), the petitioner must provide additional evidence that meets the "clear and convincing" standard and proves that the state court's factual findings were in error. The court cannot make the determinations contemplated by § 2254(e) and Rule 8 if Rule 7 is coextensive with the right to an evidentiary hearing. C. PETITIONER
DID NOT FAIL TO DEVELOP IN STATE COURT THE FACTUAL BASES OF THE CLAIMS FOR WHICH HE NOW SEEKS TO EXPAND THE RECORD.

Even if Cooper-Smith were correctly decided and the standards of 28 U.S.C. § 2254(e)(2) properly govern the expansion of the record under Rule 7, the Court should grant Petitioner's motion to expand the record in this case because Petitioner did not fail to develop the factual bases of the claims for which he now seeks to expand the record. Petitioner is requesting that the Court expand the record to include exhibits in support of Claims One, Five, Six, Twenty-One and Twenty-Two of Petitioner's First Amended Petition. Petitioner did not fail to develop the factual bases of any of the claims in state court. Claim One alleges that the state court violated Petitioner's Fifth and Fourteenth
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Amendment rights against self-incrimination when it refused to suppress his involuntary confession. The factual basis of this claim is essentially the same as it was when the trial court considered Petitioner's motion to suppress his confession. Petitioner seeks to expand the record, however, to include information regarding the affect his in utero exposure to alcohol had on the totality of circumstances surrounding the voluntariness of his confession. Petitioner cannot be said to have failed to develop the factual basis of Claim One in state court. Claims Five and Six allege that defense counsel rendered constitutionally ineffective assistance of counsel at the guilt and penalty phases of Petitioner's trial. More specifically, Claim Five (B) alleges that trial court failed to obtain experts to assist in developing appropriate defenses, and Claim Six alleges that Petitioner received ineffective assistance of counsel during the penalty phase of his trial because his attorneys failed to investigate and develop appropriate mitigation evidence regarding Petitioner's in utero exposure to alcohol. These claims were presented to both the trial court and the Arizona Supreme Court in state post-conviction proceedings. Petitioner requested an evidentiary hearing on these claims before the trial court, but his request was denied.4 Because Petitioner attempted to develop the factual basis of these claims in state court, but was prohibited from doing so by the state court, he displayed the requisite diligence for purposes of 28 U.S.C. § 2254(e)(2). See Williams v. Taylor, 529 U.S. 420, 437 (2000) (diligence can be shown under the AEDPA when the petitioner seeks an evidentiary hearing in state court, in the manner prescribed by state law). Claim Twenty-One alleges that Petitioner's execution after seven years on Arizona's death row violates his Eighth Amendment right to be free from cruel and unusual punishment. The factual basis of this claim was not developed in state court, but that failure is not attributable to any lack of diligence on Petitioner's part. Rather,

4

PCR Doc. 32 at 1; PCR Doc. 42.
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the factual basis for this claim did not exist at the time of Petitioner's state postconviction proceedings. "A prisoner must . . . comply with proper state procedures in applying for presently available remedies offered by the state. However, the fact that a state remedy may be theoretically available at some distant point in the future does not require a petitioner to languish incarcerated until state procedures are complied with." Carter v. Estelle, 677 F.2d 427, 449 (5th Cir. 1982). Accordingly, even if the restrictions of 28 U.S.C. § 2254(e)(2) are applicable to the granting of a Rule 7 motion, Petitioner has not demonstrated a lack of diligence with regard to Claim Twenty-One. Claim Twenty-Two alleges that Petitioner's death sentence, as it will be imposed, constitutes cruel and unusual punishment. This claim was presented to the state court in Petitioner's post-conviction proceeding.5 Petitioner requested, but was denied, an evidentiary hearing.6 Thus, pursuant to Williams v. Taylor, 529 U.S. at 437, this Court cannot find that Petitioner failed to act diligently in developing the factual basis of this claim in state court. II. EXPANSION OF THE RECORD IN THIS CASE Petitioner seeks to expand the record in this case to include twenty exhibits. These exhibits pertain to Claims One, Five, Six, Twenty-One and Twenty-Two of Petitioner's First Amended Petition. EXHIBIT 1 ­ DECLARATION OF CHRISTOPHER CUNNIFF, M.D.: Dr. Cunniff is a pediatrician and medical geneticist, with expertise in Fetal Alcohol Syndrome ("FAS") and related disorders. As Dr. Cunniff explains in his declaration, exposure to alcohol in the womb carries with it a host of deleterious effects, "with the most consistent abnormality being abnormal central nervous system functioning, usually characterized by poor school performance, impulsivity and behavioral abnormalities."

5 6

PCR Doc. 32 at 36; PR Doc. 16 at 6-7. PCR Doc. 32 at 1; PCR Doc. 42.
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Dr. Cunniff reviewed childhood photos of Petitioner, as well as numerous other records, and concluded that Petitioner's historical, physical, intellectual, and behavioral features are characteristic of an individual with Fetal Alcohol Spectrum Disorder ("FASD"). Dr. Cunniff's declaration is relevant to Claims One, Five (B) and Six. Specifically, because Dr. Cunniff's declaration confirms that Petitioner suffers from FASD, it is relevant to Paragraphs 83 and 91 of the First Amended Petition (Claim One), which discuss the effect FASD has on the voluntariness of a criminal defendant's confession. Exhibit One is also relevant to Claim Five (B), which alleges that trial counsel provided constitutionally ineffective assistance of counsel by failing to obtain appropriate experts to assist in developing defenses. As Petitioner alleged in Paragraph 134 of his First Amended Petition, the neurological impairments that resulted from FASD arguably prevented him from engaging in the reflection necessary to form the mens rea of first degree premeditated murder. Expert testimony concerning his neurological impairments could have permitted defense counsel to argue for a lesser degree of murder and could have supported the giving of instructions on lesser degrees of homicide. See State v. Christensen, 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981). The trial court refused to give an instruction on second degree murder because, in the court's opinion, the evidence presented did not permit a reasonable person to conclude that Petitioner did not act with premeditation. Transcript of Record ("TR") 3/6/98 at 95-97, 114-16. Exhibit One is also relevant to Claim Six, which alleges that Petitioner received ineffective assistance of counsel during the penalty phase of his trial. Specifically, Exhibit One is relevant to the prejudice prong of Claim Six because it demonstrates that, had trial counsel conducted an adequate mitigation investigation, they would have been able to obtain persuasive mitigating evidence establishing Petitioner's diminished neuropsychological abilities.
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In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 1 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 1. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 2 ­ DECLARATION OF RUTH GARCIA: Ruth Garcia is Petitioner's mother. Her declaration provides support for factual claims made in Petitioner's First Amended Petition and is relevant to Claim One because it demonstrates that Petitioner had significant in utero exposure to alcohol. Particularly, this declaration is relevant to Claim One because it further confirms that Petitioner was exposed to alcohol and drugs while in the womb and demonstrates, that throughout childhood, Petitioner exhibited the physical, emotional and behavioral characteristics of FASD. For similar reasons, Exhibit 2 is relevant to Claims Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 2 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 2. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel.
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EXHIBITS 3 THROUGH 8 ­ UNDATED PHOTOGRAPHS OF PETITIONER FROM
INFANCY THROUGH ADOLESCENCE:

Exhibits 3 through 8 were provided to Dr.

Cunniff and serve as part of the basis for Dr. Cunniff's opinion that Petitioner suffers from FASD. For the same reasons discussed with regard to Exhibit 1, these Exhibits are relevant to Claims One, Five (B) and Six. In addition, Petitioner submits these exhibits to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibits 3 through 8 satisfy Rule 7's sole requirement of relevancy, the Court should admit them to assist it in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts established by Exhibits 3 through 8. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 9 ­ PETITIONER'S RECORDS FROM WEST CARE BOYS' RESIDENTIAL DRUG REHABILITATION CENTER, LAS VEGAS, NEVADA: Exhibit 9 was provided to Dr. Cunniff and serves as part of the basis for Dr. Cunniff's opinion that Petitioner suffers from FASD. Thus, for the same reasons discussed with regard to Exhibit 1, Exhibit 9 is relevant to Claims One, Five (B) and Six. Exhibit 9 also provides support for facts alleged in Paragraph 35 of the First Amended Petition. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 9 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in
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state court the facts set forth in Exhibit 9. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 10 ­ MEMORANDUM FROM BLAIR ABBOTT TO BILLY SIPE AND LEE NOVAK, DATED SEPTEMBER 16, 1998, REGARDING "MITIGATION ISSUES": This memorandum from the defense investigator, Blair Abbott, to defense counsel references "Library and Internet research regarding drug & alcohol fetal cell damage." In the memorandum, Abbott informs defense counsel that drugs and alcohol, "when taken in the first trimester effect subsequent intelligence, conduct, emotions, urges, etc. as the child grows into adulthood." Abbott warns that his research is only a "preliminary effort" and urges defense counsel to, among other things, contact other death penalty attorneys in Arizona for their assistance on the issue. Exhibit 10 is relevant to Claim Six, which alleges that defense counsel rendered constitutionally ineffective assistance of counsel at the penalty phase of defendant's trial. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claim Six. Because Exhibit 10 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on Claim Six. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 10. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 11 ­ LETTER
FROM

ABACUS RESEARCH & INVESTIGATION

TO

DEFENSE COUNSEL, DATED JUNE 21, 1998, REGARDING MITIGATION: In

this letter

to defense counsel, the defense investigator notes that one of the "significant issues"
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for purposes of mitigation is the "hard core drug abuse . . . in the first trimester of Ruth's pregnancy with Bobby." The letter further observes that, "Ruth Garcia's heavy drug abuse in the pre pregnancy and early on in the pregnancy undoubtedly caused severe damage to her unborn child." Exhibit 11 is relevant to Claim Six, which alleges that defense counsel rendered constitutionally ineffective assistance of counsel at the penalty phase of defendant's trial. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claim Six. Because Exhibit 11 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on Claim Six. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 11. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 12- NEUROBEHAVIOR IN ADOLESCENTS AND ADULTS, PUBLICATION
OF THE

FAS/E

SUPPORT

NETWORK

(1995),

AVAILABLE

AT

WWW.FETALALCOHOL.COM:

This publication by the FAS/E Support Network

provides information on the various neurological problems associated with adolescents and adults suffering from FASD. This publication provides support for factual claims made in Petitioner's First Amended Petition and is relevant to Claims One, Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 12 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims.
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For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 12. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 13 ­ EXCERPTS FROM FETAL ALCOHOL SYNDROME: DIAGNOSIS, EPIDEMIOLOGY, PREVENTION, AND TREATMENT, KATHLEEN STRATTON, CYNTHIA HOWE,
AND

FREDERICK BATTAGLIA (EDS.) (1996):

This exhibit consists of

excerpts from a text discussing Fetal Alcohol Syndrome. The excerpts support factual allegations made by Petitioner in his First Amended Petition. Specifically, they support allegations regarding the effects of in utero alcohol exposure made in Paragraphs 16, 17, 18, 28 and 42 of the First Amended Petition. Exhibit 13 is relevant to Claims One, Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 13 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 13. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 14 ­ ANN P. STREISSGUTH NEUROPSYCHIATRIC IMPLICATION
AND AND

KIERAN O'MALLEY,
OF

LONG-TERM CONSEQUENCES

FETAL

ALCOHOL SPECTRUM DISORDERS: This exhibit supports factual allegations made by Petitioner in his First Amended Petition. Specifically, it supports allegations regarding the effects of in utero alcohol exposure made in Paragraphs 16, 17, 18, 28
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and 42 of the First Amended Petition. Exhibit 14 is relevant to Claims One, Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 14 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 14. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 15 ­ TIMOTHY E. MOORE, PH.D.
AND

MELVYN GREEN, FETAL This exhibit supports

ALCOHOL SPECTRUM DISORDER (FASD): A NEED FOR CLOSER EXAMINATION BY
THE CRIMINAL JUSTICE SYSTEM, 19 C.R. (6TH) 99-108 (2004):

factual allegations made by Petitioner in his First Amended Petition. Specifically, it supports allegations regarding the effects of in utero alcohol exposure made in Paragraphs 16, 17, 18, 28 and 42 of the First Amended Petition. Exhibit 15 is relevant to Claims One, Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 15 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 15. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally
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ineffective assistance he received from court-appointed trial counsel. EXHIBIT 16 ­ JEANICE DAGHER-MARGOSIAN, REPRESENTING (EDS.) THE CHALLENGE
THE

FAS

CLIENT IN A CRIMINAL CASE, EXCERPTED FROM A.P. STREISSGUTH AND J. KANTER
OF

FETAL ALCOHOL SYNDROME: OVERCOMING

SECONDARY DISABILITIES (1997): This exhibit supports factual allegations made by Petitioner in his First Amended Petition. Specifically, it supports allegations regarding the effects of in utero alcohol exposure made in Paragraphs 16, 17, 18, 28 and 42 of the First Amended Petition. Exhibit 16 is relevant to Claims One, Five (B) and Six. In addition, Petitioner submits this exhibit to assist the Court in determining whether to grant Petitioner an evidentiary hearing on Claims One, Five (B) and/or Six. Because Exhibit 16 satisfies Rule 7's sole requirement of relevancy, the Court should admit it to assist the Court in determining whether Petitioner is entitled to an evidentiary hearing on any or all of these claims. For the reasons set forth earlier in this Memorandum, Petitioner maintains that he is not required to demonstrate cause and prejudice for any failure to develop in state court the facts set forth in Exhibit 16. Were such a demonstration required, however, any failure to develop the facts would be attributable to the constitutionally ineffective assistance he received from court-appointed trial counsel. EXHIBIT 17 ­ STUART GRASSIAN, M.D., PSYCHOPATHOLOGICAL EFFECTS OF SOLITARY CONFINEMENT, AM. J. PSYCHIATRY 140:1 (NOV. 1983): Exhibit 17 is relevant to Claim Twenty-One of the First Amended Petition, in which Petitioner alleges that his execution after seven years on Arizona's death row violates his Eighth Amendment right to be free from cruel and unusual punishment (the "Lackey" claim). Petitioner submits that Lackey claims raised by Arizona death row prisoners are especially valid because of the unnecessarily cruel conditions of confinement applied to them. Dr. Stuart Grassian, M.D., has written extensively regarding the cruel effects of solitary confinement, which is the constant state of affairs for every inmate on
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Arizona's death row. Dr. Grassian states that: "it has long been known that severe restriction of environmental and social stimulation, has a profoundly deleterious effect on mental functioning." A major body of clinical literature exists documenting "the psychiatric disturbances created by such stringent conditions of confinement." The almost complete lack of stimulation has drastic effects: [i]n solitary confinement, ordinary stimuli become intensely unpleasant, and small irritation become maddening. Individuals in such confinement brood upon normally unimportant stimuli, and minor irritations become the focus of increasing agitation and paranoia." Petitioner's neurological deficits make him especially vulnerable to the conditions on Arizona's death row. As Dr. Grassian explains in Exhibit 17: Those most severely affected [by the effects of solitary confinement] ­ often individuals with evidence of subtle neurological or attention deficit disorder, or with some other vulnerability ­ suffer from state of florid psychotic delirium, marked by severe hallucinatory confusion, disorientation, and even incoherence, and by intense agitation and paranoia; these, psychotic disturbances often have a dissociative character, and individuals so affected often do not recall events which occurred during the course of the confusional psychosis. EXHIBIT 18 ­ AFFIDAVIT OF DR. MARK HEATH IN TEXAS V. JESUS FLORES (NO. 877994A): Exhibit 18 is relevant to Claim Twenty-Two of the First Amended Petition, in which Petitioner alleges that his death sentence, as it will be imposed, constitutes cruel and unusual punishment. Dr. Heath's affidavit explains the misleading masking effects of pancuronium bromide, because it prevents the muscles from moving or contracting to show pain and suffering, and that there is a significant risk of inhumane suffering because the other drugs will not render Petitioner unconscious. EXHIBIT 19 ­ AFFIDAVIT OF CAROL WEIHRER IN TEXAS V. JESUS FLORES (NO. 877994A): Exhibit 19 is relevant to Claim Twenty-Two. Ms. Weihrer's affidavit offers a first-hand experience of the suffering described above by Dr. Heath.

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EXHIBIT 20 ­ AFFIDAVIT OF DR. DENNIS GEISER, D.V.M. IN TEXAS V. JESUS FLORES (NO. 877994A): Exhibit 20 is relevant to Claim Twenty-Two. Dr. Geiser's affidavit explains that Pancuronium Bromide, which is used by the State of Arizona in the lethal injection of death row inmates, is prohibited by several states for use in the euthanasia of animals because it produces a peripheral paralysis in skeletal muscles, rendering the recipient unable to respond to external stimuli while still being able to perceive pain. Exhibit 20 also explains that Sodium Thiopental is not a proper anesthetic for use in lethal injection. III. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that the Court expand the record in this case to include the twenty exhibits submitted with this motion. Respectfully submitted this 19th day of September, 2005. Jon M. Sands Federal Public Defender Michael L. Burke

s/ Michael L. Burke Counsel for Petitioner

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