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 Motion for Discovery and Evidentiary Hearing

Pursuant to 28 U.S.C. §2254(e), and Rules 6 and 8 of the Rules Governing Section 2254 Cases in the United States District Courts, Petitioner Robert Allen Poyson requests an evidentiary hearing on Claims One, Five, Six, Seven, and TwentyTwo of his First Amended Petition. Petitioner also requests leave to conduct discovery with regard to Claim Twenty-Two. Further, he reserves the right to request discovery and/or an evidentiary hearing on Claims Nineteen, Twenty and TwentyOne. 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 Page -1Case 2:04-cv-00534-NVW Document 40 Filed 09/19/2005 Page 1 of 24

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 Motion for Discovery and Evidentiary Hearing

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Table of Contents Discovery and Evidentiary Hearings in Habeas Corpus Proceedings . . . . . . . . . . 1 A. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. 2. 3. 1. 2. 3. Discovery under the Rules Governing Habeas Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Discovery under the Federal Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Importance of Discovery in a Capital Case . . . . . . . . . . . 4 The Court's Authority to Order an Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Effect of the AEDPA on the Court's Authority to Order an Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . 7 The Need for Discovery and an Evidentiary Hearing on Questions of Procedural Default . . . . . . . . . . . . . . . . . . . . . 9

B. Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Specific Discovery and Evidentiary Hearing Requests . . . . . . . . . . . . . . . . . . . . 10 I. Claim One: Evidentiary Hearing Requested . . . . . . . . . . . . . . . . . . . . . 10 Christopher Cunniff, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Expert Witness on Fetal Alcohol Spectrum Disorder . . . . . . . . . . . 11 Expert Witness on Involuntary Confessions . . . . . . . . . . . . . . . . . . 11 II. Claim Five: Evidentiary Hearing Requested . . . . . . . . . . . . . . . . . . . . . 11 Billy Sipe, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Lee Novak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Expert Witness on Representation of Capital Defendants . . . . . . . . 13 III. Claim Six: Evidentiary Hearing Requested . . . . . . . . . . . . . . . . . . . . . 13 Billy Sipe, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Lee Novak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Blair Abbott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Christopher Cunniff, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Expert Witness on Fetal Alcohol Spectrum Disorder . . . . . . . . . . . 14 i
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Expert Witness on Representation of Capital Defendants . . . . . . . . 14 IV. Claim Seven: Evidentiary Hearing Requested . . . . . . . . . . . . . . . . . . 14 John Rood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Expert Witness on Representation of Capital Defendants . . . . . . . . 15 V. Claims Nineteen, Twenty, and Twenty-One . . . . . . . . . . . . . . . . . . . . . 15 VI. Claim Twenty-Two: Discovery and Evidentiary Hearing Requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Depositions of employees of the Arizona Department of Corrections responsible for the lethal injection protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Record deposition of the Pinal County Medical Examiner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Record deposition of the Pima County Medical Examiner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Mark Heath, M.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Carol Weihrer, Director of Anesthesia Awareness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Dennis Geiser, Chairman of Dept. of Large Animal Clinical Sciences, College of Veterinary Medicine, University of Tenn., Knoxville . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 James J. Ramsey, Certified Perfusionist, Program Director in the Program in Cardiovascular Perfusion, Vanderbilt University . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Jon M. Sands Federal Public Defender Michael L. Burke Assistant Federal Public Defenders 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 Motion for Discovery and Evidentiary Hearing

Pursuant to 28 U.S.C. §2254(e), and Rules 6 and 8 of the Rules Governing Section 2254 Cases in the United States District Courts, Petitioner Robert Allen Poyson requests an evidentiary hearing on Claims One, Five, Six, Seven, and TwentyTwo of his First Amended Petition. Petitioner also seeks leave to conduct discovery with regard to Claim Twenty-Two. Further, he reserves the right to request discovery and/or an evidentiary hearing on Claims Nineteen, Twenty and Twenty-One. DISCOVERY AND EVIDENTIARY HEARINGS IN HABEAS CORPUS PROCEEDINGS Despite the limitations imposed by Congress in the 1996 amendments to 28 U.S.C. § 2254, this Court retains the authority to permit discovery and to conduct an evidentiary hearing in this case. The United States Constitution enshrines the privilege, through the writ of habeas corpus, to seek the aid of the federal courts whenever a person is held in jail or prison in violation of the Constitution. U.S. Page 1
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Const., Art. I, Section 9. Congress expressly provided that persons wrongfully held in state custody may resort to the writ of habeas corpus to secure their release. 28 U.S.C. § 2254. The writ of habeas corpus is the primary--and in many cases the only--recourse to redress miscarriages of justice. Reasonable discovery and an appropriate evidentiary hearing are crucial elements of a meaningful habeas corpus proceeding. A. DISCOVERY Petitioner requests discovery to obtain additional information with which to support claims now before the Court. Petitioner will address specific discovery requests under the relevant claims below. In this section, he discusses generally this Court's authority to order discovery. 1. DISCOVERY UNDER THE RULES GOVERNING HABEAS PROCEEDINGS Pursuant to Rule 6(a) of the Rules Governing Habeas Proceedings in the District Courts ("Habeas Rule"), "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Under Habeas Rule 6, "[g]ranting discovery is left to the discretion of the court, discretion to be exercised where there is a showing of good cause why discovery should be allowed." Habeas Rule 6, Advisory Committee Note. "Good cause" exists when (1) the petitioner makes credible allegations of a constitutional violation, and (2) the requested discovery will enable the petitioner to investigate and prove his claims. See Bracy v. Gramley, 520 U.S. 899, 904, 908-09 (1997); see also McDaniel v. U.S. Dist. Court for the Dist. of Nevada (Jones), 127 F.3d 886, 888 (9th Cir. 1997) (citing Harris v. Nelson, 394 U.S. 286, 299 (1969)) ("[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."); and Payne v. Bell, 89 F. Supp. 2d 967, 970 Page 2
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(W.D. Tenn. 2000) ("Petitioner need not show that the additional discovery would definitely lead to relief. Rather, he need only show good cause that the evidence sought would lead to relevant evidence regarding his petition."). In some cases, the discretion to grant discovery may rise to the level of a duty. Harris, 394 U.S. at 300; Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991); Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991) (court should exercise its discretion and grant discovery where "good cause" exists for allowing discovery). The Supreme Court has also suggested that district court judges should consider ordering discovery before deciding whether an evidentiary hearing is appropriate whenever the claim on which discovery is sought is not so "`palpably incredible' [or] `patently frivolous or false' as to warrant summary dismissal." Blackledge v. Allison, 431 U.S. 63, 76, 8283 (1977) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). In fact, Rule 6 warrants discovery "when[ever] it would help the court make a reliable determination with respect to the prisoner's claim." Herrera v. Collins, 506 U.S. 390, 444 (1993) (Blackmun, J., dissenting on other grounds). A district court may authorize discovery "at any time in the proceedings, when the court considers that it is necessary to do so in order that a fair and meaningful evidentiary hearing may be held . . . before or in conjunction with the hearing . . . ." Harris, 394 U.S. at 3001 (setting forth standards for discovery under All Writs Act,

Harris v. Nelson disclaimed the notion that "district judges are without power to enter necessary orders in the absence of rules," while noting that "the rulemaking machinery should be invoked to formulate rules of practice with respect to federal habeas corpus . . . proceedings." 394 U.S. at 300 n.7. Habeas Rule 6 was thus subsequently adopted. In stating that Habeas Rule 6(a) is "consistent with Harris," however, the Advisory Committee Note indicates that Habeas Rule 6 was not designed to supplant the district courts' inherent powers under Harris and 28 U.S.C. §1651, but rather to provide practical, enforceable guidelines for discovery in habeas proceedings. See Gilday v. Callahan, 99 F.R.D. 308, 309 (D. Mass. 1983) ("[T]he Advisory Committee Note of Rule 6 renders [the] Rule consistent with the strict and well reasoned interpretation supplied by Harris.") The All Writs Act thus remains viable to the extent it permits potentially broader discovery procedures than those of Habeas Rule 6. Page 3
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28 U.S.C. §1651).2 Indeed, the United States Supreme Court has emphasized that district courts should authorize discovery procedures "reasonably fashioned to elicit facts necessary to help the court `dispose of the matter as law and justice require.'" Id. at 290 (quoting 28 U.S.C. § 2243). 2. DISCOVERY UNDER THE FEDERAL RULES OF CIVIL PROCEDURE The scope of discovery under the Federal Rules of Civil Procedure is quite broad. See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947). Rule 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Consistent with its sweeping language, federal courts have uniformly construed Rule 26(b)(1) very broadly. As the Ninth Circuit explained in Shoen v. Shoen, "[t]his broad right of discovery is based on the general principle that litigants have a right to every man's evidence, and that wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth." 5 F.3d 1289, 1292 (9th Cir. 1993) (internal citations and quotations omitted); see also Kerr v. U.S. Dist. Court for Northern Dist. of California, 511 F.2d 192, 195 (9th Cir. 1975). 3. THE IMPORTANCE OF DISCOVERY IN A CAPITAL CASE Because Petitioner has been sentenced to die for his crimes, discovery is necessary to insure the additional level of due process that is demanded in capital cases. Indeed, as the Fifth Circuit has recognized, "[I]f death is involved, the petitioner should be presented every opportunity possible . . . to present facts relevant to his constitutional claims." Wilson v. Butler, 825 F.2d 879, 883 (5th Cir. 1987). In fact, the capital petitioner who fails to request full discovery in his initial habeas Under the All Writs Act, 28 U.S.C. §1651(a), "The Supreme Court and all courts established by Act of Congress may issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Page 4
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petition may lose his life because he failed to investigate his case earlier. See, e.g., Tucker v. Kemp, 819 F.2d 978, 981 (11th Cir. 1987) (finding abuse of the writ and denying relief on eve of execution, where capital petitioner failed to seek discovery during first habeas proceedings). Allowing discovery will facilitate prompt resolution of this case. "Because habeas corpus discovery is designed to aid courts in determining the validity of the petitioner's claims, it often can add -- and may in fact be indispensable -- to the reliability of habeas corpus proceedings in capital cases. For this reason, liberal use of discovery is appropriate in such cases." RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 526 (4th ed. 2001). The need for liberal discovery in capital cases is especially acute. Capital cases require heightened reliability in the determination of both the defendant's guilt and sentence. See Beck v. Alabama, 447 U.S. 625, 637 (1980). When an individual's life is at stake, the Supreme Court insists upon higher standards of reliability and fairness. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) ("`[T]he penalty of death is qualitatively different' from any other sentence . . . . We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.") (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). Indeed, Congress has articulated this federal policy through the Anti-Drug Abuse Act of 1988, which provides additional investigators, experts, and services of counsel for those seeking collateral review of a death sentence. See 21 U.S.C. § 848(q). In this case, Petitioner has made credible allegations of constitutional violations for which discovery is necessary in order to further investigate and prove the allegations. Later in this motion, Petitioner will address specific discovery requests as they pertain to various claims raised in his First Amended Petition.

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B.

EVIDENTIARY HEARING Petitioner also requests an evidentiary hearing pursuant to Habeas Rule 8,3 so

that he may present additional information to the Court that will further support specific claims alleged in his First Amended Petition. Petitioner will address specific evidentiary hearing requests under the relevant claims below. In this section, he discusses generally this Court's authority to conduct an evidentiary hearing in a capital habeas proceeding, as well as the effect of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") on the Court's authority to order an evidentiary hearing. 1. THE COURT'S AUTHORITY TO ORDER AN EVIDENTIARY HEARING The Supreme Court has recognized six circumstances under which a district court must provide an evidentiary hearing for a habeas petitioner: (1) the merits of a factual dispute were not resolved in a state court proceeding; (2) the state court factual determination is not supported by the record; (3) the fact finding procedure used by the state was inadequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed in a state court proceeding; and (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963), partially overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). In Keeney, the Supreme Court partially overruled Townsend, but only as to Townsend's fifth factor--that the material facts were not adequately developed in the
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Habeas Rule 8(a) provides: If the petition is not dismissed at a previous stage in the proceeding, 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. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require. Page 6

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state court hearing. Townsend's five other circumstances remain unaffected by Keeney. Keeney, 504 U.S. at 5. Under Keeney, in cases in which the petitioner had a state court evidentiary hearing and negligently failed to develop the material facts in that hearing, the petitioner is entitled to a federal evidentiary hearing only "if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from the failure." 504 U.S. at 11. Keeney also recognizes a "narrow exception" to this cause and prejudice requirement: "A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Id. at 12. 2. THE EFFECT OF THE AEDPA ON ORDER AN EVIDENTIARY HEARING
THE

COURT'S AUTHORITY TO Specifically,

Congress codified Keeney when it enacted the AEDPA.

subsection (e) was added to 28 U.S.C. § 2254 to provide that a district court is not required to hold an evidentiary hearing if the petitioner has "failed to develop the factual basis of his claim in State court proceedings." Id. § 2254(e)(2). The AEDPA left the remaining elements of Townsend entirely intact. When President Clinton signed the AEDPA, he believed certain sections of the legislation warranted comment: Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this bill because I am confident that the Federal courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary. President's Statement on Signing Anti-Terrorism and Effective Death Penalty Act of 1996, 32 WEEKLY COMP. PRES. DOC. 719 (Apr. 24, 1996), 1996 WL 13335508 ("President's Statement"). The president specifically addressed the legislation's effect on a petitioner's ability to prove facts to support his federal claims: Page 7
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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 Id.

Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when "the applicant has failed to develop the factual basis of a claim in State court proceedings." If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which "the applicant has failed to develop the factual basis" of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court. Preserving the Federal courts' authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners' rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power "to say what the law is" and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal. In Michael Williams v. Taylor, 529 U.S. 420 (2000), the Supreme Court interpreted and applied 28 U.S.C. Section 2254(e)(2) as amended by the AEDPA. As a threshold matter, the Court recognized that Congress codified Keeney in modified form: As is evident from the similarity between the Court's phrasing in Keeney and the opening clause of § 2254(e)(2), Congress intended to preserve at least one aspect of Keeney's holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy § 2254(e)(2)'s provisions rather than show cause and prejudice, and in eliminating a freestanding "miscarriage of justice" exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. 529 U.S. at 433. The respondent in Williams argued that the "failure to develop" language of Section 2254(e)(2) imposed a "no fault," "strict liability" rule: if the facts were not developed in state court (no matter what the reason), a petitioner is precluded under Page 8
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the statute from developing the facts in federal court. Id. at 431. The Supreme Court disagreed with this reading of the "failure to develop" language. "[A] person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all." Id. at 432. The Court held, "[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Ibid. The Court further recognized, "Congress has given prisoners who fall within § 2254(e)(2)'s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings." Williams, 529 U.S. at 436. Finally, the Court stated, "If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not `failed to develop' the facts under § 2254(e)(2)'s opening clause, and he will be excused from showing compliance with the balance of the subsection's requirements." Id. at 437; see also Jaramillo v. Stewart, 340 F. 3d 877, 882 (9th Cir. 2003). Interference by the state in developing the facts in state court does not bar a petitioner from developing the facts in federal court. See Williams, 529 U.S. at 443. 3. THE NEED FOR DISCOVERY AND AN EVIDENTIARY HEARING QUESTIONS OF PROCEDURAL DEFAULT
ON

Petitioner is entitled to discovery and/or a hearing on claims that may be barred, if only to evaluate whether the procedural default can be excused. See Cristin v. Brennan, 281 F.3d 404, 416-17 (3d Cir. 2002) ("[W]e are aware of no case in which either the Keeney standard or its successor, § 2254(e)(2), has been employed to limit whether an evidentiary hearing was available to evaluate whether a petitioner's procedural default may be excused."); Williams IV v. Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996) ("[B]efore denying him an evidentiary hearing on the new evidence, the district court should have determined whether [Petitioner's] newly Page 9
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proffered evidence was sufficient to support a finding of cause and prejudice."). Otherwise, evidence of cause and prejudice or miscarriage of justice would never be discovered. See McCleskey v. Zant, 499 U.S. 467, 494 (1991) (petitioner is entitled to a hearing on cause and prejudice); see also Amrine v. Bowersox, 128 F.3d 1222, 1228-29 (8th Cir. 1997) (petitioner is entitled to a hearing on miscarriage of justice). Once the state raises a procedural default issue, the federal court should conduct factual development on the controverted factual issues surrounding the default. The doctrines of cause and prejudice which excuses default are "federal questions" on which the federal courts have a duty to make "an independent determination." See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Further, if habeas petitioners are entitled to evidentiary hearings on issues of procedural default, then they are also entitled to conduct discovery. See Committee Comment, Habeas Rule 6. Absent this Court's findings of procedural default, the affirmative defense of procedural default does not act as a bar to the granting of discovery. Instead, it can only serve to expand the scope of discovery to include not only the underlying issue, but also evidence supporting any "cause" which excuses the failure to properly raise the substantive issue in state court. SPECIFIC DISCOVERY AND EVIDENTIARY HEARING REQUESTS Petitioner requests discovery and/or an evidentiary hearing to develop facts to support the following claims: I. CLAIM ONE: EVIDENTIARY HEARING REQUESTED In Claim One, Petitioner argued that the state court violated his Fifth and Fourteenth Amendment right against self-incrimination when it refused to suppress his involuntary confession. The facts alleged in Claim One, if true, would entitle Petitioner to habeas relief. Moreover, the restrictions of 28 U.S.C. § 2254(e)(2) do not apply in this instance because Petitioner did not "fail[] to develop the factual basis" of the claim in state court. The trial court held an evidentiary hearing on Page 10
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Petitioner's motion to suppress his confession.4 The state court, however, did not reliably find the relevant facts. In particular, the state court did not consider the effect Petitioner's FASD had on the voluntariness of his confession. Accordingly, pursuant to Townsend, this Court must grant Petitioner an evidentiary hearing on Claim One. Petitioner intends to call, at a minimum, the following witnesses at an evidentiary hearing on Claim One: CHRISTOPHER CUNNIFF, M.D.: Dr. Cunniff is a pediatrician and medical geneticist with expertise in FASD. Dr. Cunniff will testify regarding his medical opinion that Petitioner suffers from the effects of FASD. EXPERT WITNESS ON FETAL ALCOHOL SPECTRUM DISORDER: This witness will testify regarding the nature and scope of neuropsychological disabilities associated with FASD. EXPERT WITNESS ON INVOLUNTARY CONFESSIONS: This witness will testify regarding the effect Petitioner's FASD has on the voluntariness of his confession. II. CLAIM FIVE: EVIDENTIARY HEARING REQUESTED In Claim Five, Petitioner alleged that his trial counsel rendered constitutionally ineffective assistance of counsel during the guilt phase of his trial. Specifically, Petitioner alleged in Claim Five that trial counsel (A) failed to examine crucial physical evidence in a timely fashion prior to trial; (B) failed to obtain experts to assist in developing appropriate defenses; (C) was rendered ineffective by the duplicitous indictment in Petitioner's case; (D) failed to challenge the defective indictment; and (E) failed to move for a mistrial in response to a venire member's prejudicial statement. The Ninth Circuit Court of Appeals has acknowledged that separate errors by counsel are "not separate claims, but rather different aspects of a single claim of ineffective assistance of trial counsel." Sanders v. Ryder, 342 F.3d 991, 1001 (9th

4

Tr. Ct. Doc. 28; TR 7/25/97; TR 8/21/97; TR 11/24/97. Page 11

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Cir. 2003). Accordingly, sub-claims (A) through (E) of Claim Five "should be analyzed together to see whether their cumulative effect deprived the defendant of his right to effective assistance." Id. Thus, "individual deficiencies that may not by themselves meet the Strickland prejudice standard may, when considered cumulatively, constitute sufficient prejudice to justify granting the writ." Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). Accordingly, Petitioner requests an evidentiary hearing on Claim Five in its entirety. The restrictions of 28 U.S.C. § 2254(e)(2) do not apply in this instance because Petitioner did not "fail[] to develop the factual basis" of the claim in state court. He requested an evidentiary hearing on his claim of ineffective assistance of counsel during the guilt phase of his trial, but the state court denied that request.5 Because Petitioner requested an evidentiary hearing on this claim, but was denied one by the state court, Petitioner cannot be said to have "failed to develop" the factual basis of the claim in state court. See McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998); see also Rodriguez v. Zavaras, 42 F. Supp.2d 1052, 1055 (D. Colo. 1999). Given that the facts material to Claim Five were not adequately developed in a state court proceeding, the Court should grant Petitioner an evidentiary hearing on that claim. See Townsend, 372 U.S. at 313. Petitioner intends to call, at a minimum, the following witnesses at an evidentiary hearing on Claim Five: BILLY SIPE, JR.: Mr. Sipe was Petitioner's trial counsel. Upon information and belief, Mr. Sipe will testify regarding his investigation of Petitioner's case, as well as his strategy regarding presentation of evidence at the guilt phase of Petitioner's trial. LEE NOVAK: Mr. Novak was Petitioner's trial counsel. Upon information and belief, Mr. Novak will testify regarding his investigation of Petitioner's case, as well

5

PCR Doc. 32, at 1. Page 12

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as his strategy regarding presentation of evidence at the guilt phase of Petitioner's trial. EXPERT WITNESS
ON

REPRESENTATION OF CAPITAL DEFENDANTS: This

witness would testify regarding the minimum qualifications and standards of performance of trial counsel in capital cases. III. CLAIM SIX: EVIDENTIARY HEARING REQUESTED In Claim Six, Petitioner alleged that his trial attorneys provided ineffective assistance of counsel at sentencing by failing to investigate and prepare adequate and appropriate mitigation. Moreover, in his Amended Petition for Post-Conviction Relief, Petitioner requested that the trial court grant him an evidentiary hearing on this claim, but the trial court denied him one.6 Because Petitioner requested an evidentiary hearing on this claim, but was denied one by the state court, he did not "fail[] to develop" the factual basis of the claim in state court. See McDonald, 139 F.3d at 1059; Rodriguez, 42 F. Supp.2d at 1055. Given that the facts material to Claim Six were not adequately developed in a state court proceeding, the Court should grant Petitioner an evidentiary hearing on that claim. See Townsend, 372 U.S. at 313. Petitioner intends to call, at a minimum, the following witnesses at an evidentiary hearing on Claim Six: BILLY SIPE, JR.: Mr. Sipe was Petitioner's trial counsel. Upon information and belief, Mr. Sipe will testify regarding the mitigation investigation in Petitioner's case, as well as his strategy regarding presentation of evidence at Petitioner's sentencing hearing. LEE NOVAK: Mr. Novak was Petitioner's trial counsel. Upon information and belief, Mr. Novak will testify regarding the mitigation investigation in Petitioner's case, as well as his strategy regarding presentation of evidence at Petitioner's

6

PCR Doc. 32, at 1. Page 13

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sentencing hearing. BLAIR ABBOTT: Upon information and belief, Mr. Abbott will testify regarding his mitigation investigation in Petitioner's case, as well as his qualifications to conduct a mitigation investigation. CHRISTOPHER CUNNIFF, M.D.: Dr. Cunniff is a pediatrician and medical geneticist with expertise in FASD. Upon information and belief, Dr. Cunniff will testify regarding his opinion that Petitioner suffers from FASD. Dr. Cunniff's testimony will be relevant to the prejudice prong of Petitioner's ineffective assistance of counsel claim. See Wiggins v. Smith, 123 S. Ct. 2527, 2542 (2003). EXPERT WITNESS ON FETAL ALCOHOL SPECTRUM DISORDER: This witness will testify regarding the nature and scope of neuropsychological disabilities associated with FASD. EXPERT WITNESS
ON

REPRESENTATION OF CAPITAL DEFENDANTS: This

witness would testify regarding the minimum qualifications and standards of performance of trial counsel in capital cases. Petitioner has alleged facts that, if true, constitute a colorable claim of ineffective assistance of trial counsel. In addition, Petitioner's allegations "undermine confidence" in the outcome of his sentencing, thereby establishing the requisite Strickland prejudice. See Correll v. Stewart, 137 F.3d 1404, 1413 (1998); Strickland, 466 U.S. at 694-96. evidentiary hearing on Claim Six. IV. CLAIM SEVEN: EVIDENTIARY HEARING REQUESTED In Claim Seven, Petitioner alleges that he received ineffective assistance of appellate counsel in his direct appeal to the Arizona Supreme Court. In his Amended Petition for Post-Conviction Relief, Petitioner requested that the trial court grant him an evidentiary hearing on this claim, but the trial court denied him one.7 Because Accordingly, this Court should conduct an

7

PCR Doc. 32, at 1. Page 14

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Petitioner requested an evidentiary hearing on this claim, but was denied one by the state court, he did not "fail[] to develop" the factual basis of the claim in state court. See McDonald, 139 F.3d at 1059; Rodriguez, 42 F. Supp.2d at 1055. Given that the facts material to Claim Seven were not adequately developed in a state court proceeding, the Court should grant Petitioner an evidentiary hearing on that claim. See Townsend, 372 U.S. at 313. Petitioner intends to call, at a minimum, the following witnesses at an evidentiary hearing on Claim Seven: JOHN ROOD: Mr. Rood was Petitioner's appellate counsel. Upon information and belief, Mr. Rood will testify regarding his investigation of Petitioner's case, his selection and rejection of various claims that were or could have been raised on appeal, and his preparation of the opening and reply brief in Petitioner's direct appeal. EXPERT WITNESS
ON

REPRESENTATION OF CAPITAL DEFENDANTS: This

witness would testify regarding the minimum qualifications and standards of performance of appellate counsel in capital cases. V. CLAIMS NINETEEN, TWENTY, AND TWENTY-ONE In Claim Nineteen, Petitioner alleges that he will be denied a fair clemency process in violation of the Fifth, Eighth and Fourteenth Amendments. Claim Nineteen may not be cognizable in a proceeding under 28 U.S.C. § 2254, but rather an action may lie under 28 U.S.C. § 1983. If this claim is cognizable under 28 U.S.C. § 2254, it is not yet ripe for review. In Claim Twenty, Petitioner alleges that, at the time of execution, he will be incompetent to be executed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner acknowledges that this claim is not yet ripe for consideration. See Stewart v. Martinez-Villareal, 523 U.S. 637, 642-44 (1998) (Ford claim could properly be brought as a first petition where claim had been included in first petition and dismissed as not ripe). In Claim Twenty-One, Petitioner alleges a constitutional violation due to the Page 15
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length of time he will be under a sentence of death before he is executed. Petitioner acknowledges that this claim is not yet ripe for consideration. With regard to Claims Nineteen, Twenty and Twenty-One, Petitioner reserves the right to seek discovery and/or an evidentiary hearing if and when these claims are ripe for consideration by the Court. VI. CLAIM TWENTY-TWO: DISCOVERY REQUESTED
AND

EVIDENTIARY HEARING

In Claim Twenty-Two, Petitioner alleges that his death sentence, as it will be imposed, constitutes cruel and unusual punishment. Petitioner requests that the Court grant him both discovery and an evidentiary hearing on Claim Twenty-Two. A. DISCOVERY ARIZONA DEPARTMENT Petitioner requests the following discovery concerning Claim Twenty-Two: DEPOSITIONS
OF EMPLOYEES OF THE OF

CORRECTIONS RESPONSIBLE FOR THE LETHAL INJECTION PROTOCOL: Through these depositions, Petitioner will seek records and testimony regarding the following: i. ii. iii. iv. The procedures for obtaining prescriptions for the controlled substances. The form and conditions under which the prescriptions are stored and labeled. The personnel and procedures for mixing and labeling the chemicals prior to an execution. Whether the prisoner is subjected to a physical exam prior to execution in order to assess general health, health of blood vessels, etc. The standard dose of sodium pentothal and whether it is non -individ ualized (non-titrated). The standard dose of pancuronium bromide and whether it is non-individualized (non-titrated). The standard dose of potassium chloride and whether it is non -individualized (non-titrated). Page 16
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v. vi. vii.

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viii. ix.

The minimum qualifications and expertise for personnel in charge of each of the duties described above. The procedures to establish an intravenous port and the personnel who will perform "cutdown" or infraclavicular catheterization, should it be impossible to establish IV port. The minimum qualifications and expertise for personnel performing lethal injection. Whether a heart monitor is used during execution and if so, whether it will be maintained or fixed in the event of a malfunction.

x. xi.

RECORD DEPOSITION OF THE PINAL COUNTY MEDICAL EXAMINER: This deposition will seek to discover autopsy protocols on persons executed by lethal injection in Arizona. RECORD DEPOSITION OF THE PIMA COUNTY MEDICAL EXAMINER: This deposition will seek to discover autopsy protocols of persons executed by lethal injection in Arizona. B. EVIDENTIARY HEARING Petitioner will present scientific evidence that lethal injection is cruel and that the inmate suffers in an inhumane and unusual manner. Arizona's lethal injection procedure has never been challenged in an evidentiary hearing. This claim was presented to the state court in Petitioner's post-conviction proceeding and in his petition for review from the denial of post-conviction relief.8 Because Petitioner requested an evidentiary hearing on this claim, but was denied one by the state court, he did not "fail[] to develop" the factual basis of the claim in state court. See McDonald, 139 F.3d at 1059; Rodriguez, 42 F. Supp.2d at 1055. Given that the facts material to Claim Twenty-Two were not adequately developed in a state court proceeding, the Court should grant Petitioner an evidentiary hearing on that claim. See Townsend, 372 U.S. at 313.
8

PCR Doc. 32, at 36; PR Doc. 16, at 6-7. Page 17

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Although discovery might reveal additional witnesses whose testimony would be relevant to the claim, Petitioner intends to call, at a minimum, the following witnesses at an evidentiary hearing on Claim Twenty-Two: MARK HEATH, M.D.: Dr. Heath is an anesthesiologist. Upon information and belief, he will testify that there is a serious danger that the effects of the sodium pentothal will wear off before the inmate dies. This is because sodium pentothal is a very short-acting barbiturate, which wears off quickly, and in typical surgical settings is followed by other, more long-lasting anesthetic agents. Dr. Heath will further explain that the pancuronium bromide paralyzes all voluntary muscles in the inmate, so that it is virtually impossible for any witness, including the on-site EMTs, nurses, doctors, and/or state witnesses to know whether an inmate has regained consciousness. CAROL WEIHRER, DIRECTOR OF ANESTHESIA AWARENESS: Ms. Weihrer will testify concerning her experience of having anesthesia wear off prematurely during surgery to remove her eye (condition termed "Anesthesia Awareness"). Upon information and belief, Ms. Weihrer will testify that she felt and heard everything in the operation, but was unable to let her medical team know that she had regained consciousness. When she was finally able to move a finger slightly, she was injected with more paralytic agent. DENNIS GEISER, CHAIRMAN SCIENCES, COLLEGE KNOXVILLE:
OF OF

DEPT.

OF

LARGE ANIMAL CLINICAL
OF

VETERINARY MEDICINE, UNIVERSITY

TENN.,

Upon information and belief, Dr. Geiser will testify that sodium

thiopental is not a proper anesthetic for lethal injection because it is very shortacting. Veterinarians use sodium pentobarbitol because it is potent, long-acting and a stable barbiturate. JAMES J. RAMSEY, CERTIFIED PERFUSIONIST, PROGRAM DIRECTOR IN THE PROGRAM
IN

CARDIOVASCULAR PERFUSION, VANDERBILT UNIVERSITY: Dr.

Ramsey is a perfusionist. His medical specialty uses potassium chloride to stop the Page 18
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heart during open heart surgery. The heart is chilled to five degrees centigrade, then the chemical is injected directly into heart blood vessels, in the opposite direction of blood flow. Upon information and belief, Dr. Ramsey will testify that, even under these circumstances, the heart will not always stop beating. The use of this drug in a limb, with veins that may be compromised by drug abuse, diabetes, etc., is extremely risky. Further, upon information and belief, Dr. Ramsey will testify that the chemical causes a severe burning sensation when injected. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that the Court grant him the discovery and evidentiary hearings requested in this motion. Respectfully submitted this 19th day of September, 2005. Jon M. Sands Federal Public Defender Michael L. Burke Leticia Marquez s/Michael L. Burke Counsel for Petitioner

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