Free Traverse - 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 TRAVERSE

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Table of Contents FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RESPONDENTS' ERRONEOUS ACCOUNT OF THE PROCEDURAL HISTORY IN STATE COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 EXHAUSTION OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 General Principles of Exhaustion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fair Presentment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Exhaustion by State Supreme Court Independent Review . . . . . . . . . . . . . . 9 Staying this Proceeding to Permit Petitioner to Exhaust Claims . . . . . . . 17 PROCEDURAL DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Respondents Fail to Establish the Affirmative Defense of Procedural Default for any of Petitioner's Constitutional Claims . . . . . . . . . . . . . . . . 20 In the Alternative, Petitioner can Demonstrate Cause and Prejudice . . . . 22 STANDARD FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ANALYSIS OF CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CLAIM ONE THE STATE COURT VIOLATED PETITIONER'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS AGAINST SELFINCRIMINATION WHEN IT REFUSED TO SUPPRESS HIS INVOLUNTARY CONFESSION . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 27

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CLAIM TWO PETITIONER'S
DEATH SENTENCES WERE UNCONSTITUTIONALLY IMPOSED BECAUSE, AT THE TIME HE WAS SENTENCED, ARIZONA LAW REQUIRED PETITIONER TO ESTABLISH A CAUSAL NEXUS BETWEEN HIS MITIGATING EVIDENCE AND THE CRIME, IN VIOLATION OF TENNARD V. DRETKE AND THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. BECAUSE THE TRIAL COURT COULD NOT FIND A CAUSAL CONNECTION BETWEEN MUCH OF PETITIONER'S MITIGATING EVIDENCE AND THE CRIMES, IT REFUSED TO CONSIDER THE MITIGATING EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 30

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 i

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2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CLAIM THREE T H E TR IA L
COURT V IO LA T E D P E T IT IO N E R ' S CONSTITUTIONAL RIGHTS WHEN IT FAILED ADEQUATELY TO CONSIDER THE MITIGATING EVIDENCE PRESENTED TO IT . .

. . . . . . . 35

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CLAIM FOUR THE TRIAL COURT VIOLATED PETITIONER'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS WHEN IT CONDUCTED AN INADEQUATE VOIR DIRE . . . . . . . . . . . . . . . . . . . . . 36 1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CLAIM FIVE PETITIONER
RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE GUILT PHASE OF HIS TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 39

SUB-CLAIM A: FAILURE TO EXAMINE THE BLOODY PALM PRINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SUB-CLAIM B: FAILURE TO OBTAIN EXPERTS TO ASSIST IN DEVELOPING APPROPRIATE DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . 42 1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
AND D: TRIAL COUNSEL WAS RENDERED INEFFECTIVE BY THE DUPLICITOUS INDICTMENT AND TRIAL COUNSEL FAILED TO CHALLENGE THE DEFECTIVE INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SUB-CLAIMS C

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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SUB-CLAIM E: FAILURE

TO MOVE FOR A MISTRIAL IN RESPONSE TO A VENIRE MEMBER 'S PREJUDICIAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 44

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 CLAIM SIX PETITIONER
RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE OF HIS TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 45

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 CLAIM SEVEN PETITIONER
RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE F IFTH , S IXTH , E IGHTH AND F OURTEENTH AMENDMENTS TO THE CONSTITUTION . . . . . . . . . . . . . . . .

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 CLAIM EIGHT PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE CUMULATIVE EFFECT OF HIS TRIAL COUNSEL'S DEFICIENT PERFORMANCE, OR IN THE ALTERNATIVE, BY THE
CUMULATIVE EFFECT OF THE INADEQUATE ASSISTANCE HE RECEIVED FROM BOTH HIS TRIAL AND APPELLATE ATTORNEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 48

CLAIM NINE ARIZONA'S STATUTORY SCHEME FOR IMPOSING THE DEATH
PENALTY IS UNCONSTITUTIONAL BECAUSE IT DOES NOT SUFFICIENTLY CHANNEL THE SENTENCER'S DISCRETION AND FAILS TO PROVIDE OBJECTIVE STANDARDS FOR WEIGHING AGGRAVATING AND MITIGATING CIRCUMSTANCES . . . . . . .

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CLAIM TEN THE ARIZONA SUPREME COURT'S APPLICATION OF THE "E SPECIALLY H EINOUS , C RUEL , OR D EPRAVED " AGGRAVATING FACTOR TO THE FACTS OF PETITIONER'S CRIME WAS UNREASONABLE IN LIGHT OF THE EVIDENCE . . . . . . . . . 49

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CLAIM ELEVEN PETITIONER WAS UNCONSTITUTIONALLY DENIED THE RIGHT TO VOIR DIRE THE TRIAL JUDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 CLAIM TWELVE ARIZONA'S
DEATH PENALTY SCHEME IMPERMISSIBLY DISCRIMINATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATUTORY SCHEME FOR THE IMPOSITION OF THE DEATH PENALTY IS UNCONSTITUTIONAL BECAUSE THE PROSECUTOR'S DISCRETION TO SEEK THE DEATH PENALTY IS LIMITLESS, STANDARDLESS AND ARBITRARY . . . . . . . . .

. . . . . . . 51

CLAIM THIRTEEN ARIZONA'S

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 CLAIM FOURTEEN ARIZONA'S "PECUNIARY GAIN" AGGRAVATING FACTOR IS
UNCONSTITUTIONAL BECAUSE IT FAILS TO NARROW THE CLASS OF DEFENDANTS ELIGIBLE FOR THE DEATH PENALTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 54

CLAIM FIFTEEN ARIZONA'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL
BECAUSE IT REQUIRES THE SENTENCER TO IMPOSE DEATH WHENEVER IT FINDS AN AGGRAVATING FACTOR AND NO MITIGATING CIRCUMSTANCES SUFFICIENT TO WARRANT LENIENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 CLAIM SIXTEEN THE ARIZONA DEATH PENALTY STATUTE UNDER WHICH PETITIONER WAS SENTENCED WAS UNCONSTITUTIONAL BECAUSE IT MERELY REQUIRED THE STATE TO PROVE THE DEFENDANT'S ELIGIBILITY FOR THE DEATH PENALTY,
RATHER THAN THE APPROPRIATENESS OF THE DEATH PENALTY IN DEFENDANT'S PARTICULAR CASE . . . . . . . . . .

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 CLAIM SEVENTEEN PETITIONER'S DEATH SENTENCES ARE UNCONSTITUTIONAL
BECAUSE HE WAS DENIED THE PROCEDURAL SAFEGUARD OF A PROPORTIONALITY REVIEW OF HIS SENTENCES . . . . . . . .

. . . . . . . 58

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CLAIM EIGHTEEN PETITIONER'S DEATH SENTENCES ARE UNCONSTITUTIONAL BECAUSE (1) THEY WERE IMPOSED UNDER A SYSTEM THAT ALLOWED THE JUDGE, RATHER THAN THE JURY, TO FIND FACTS NECESSARY FOR IMPOSITION OF A DEATH SENTENCE; (2) PETITIONER DID NOT RECEIVE NOTICE IN THE
INDICTMENT OF THE AGGRAVATING CIRCUMSTANCES ALLEGED BY THE STATE; AND (3) THE FINDINGS OF FACT UNDERLYING PETITIONER 'S SENTENCES LACK THE ACCURACY ENHANCING PROTECTIONS THAT ACCOMPANY THE RIGHT TO A JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . .

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 CLAIM NINETEEN PETITIONER IS BEING DENIED A FAIR CLEMENCY PROCESS IN VIOLATION OF THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION . . . . . . . . . . 62 1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 CLAIM TWENTY PETITIONER IS INCOMPETENT TO BE EXECUTED UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . 63 1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 CLAIM TWENTY-ONE PETITIONER'S EXECUTION
BY THE STATE OF ARIZONA AFTER SEVEN YEARS ON DEATH ROW VIOLATES HIS EIGHTH AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT BECAUSE IT SERVES NO LEGITIMATE PENOLOGICAL PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 64

1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 CLAIM TWENTY-TWO PETITIONER'S DEATH SENTENCE, AS IT WILL BE IMPOSED, IS
CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF HIS RIGHTS UNDER THE F IFTH , SIXTH , EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 69

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1. EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 2. MERITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

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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. Petitioner Robert Allen Poyson submits the following Traverse to the procedural defenses and merits arguments raised in Respondents' Answer ("Answer").1 FACTS 1. In setting forth the facts of Petitioner's case, Respondents rely on the statement of facts set forth in the Arizona Supreme Court's opinion in Petitioner's direct appeal.2 Petitioner acknowledges that Respondents have accurately quoted the "Facts" section of the Arizona Supreme Court's opinion. Petitioner wishes to emphasize, however, that the facts set forth in the state supreme court's decision are
1 2

No. CIV-04-0534-PHX-NVW Death Penalty Case Petitioner's Traverse

District Court Docket Entry Number ("Doc. No.") 30.

See Answer, at 3-4; see also State v. Poyson, 198 Ariz. 70, 74, 7 P.3d 79, 83 (2000). 1

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not "findings of fact" entitled to deference by this Court. 2. Pursuant to 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." The state supreme court's recitation of facts in Petitioner's direct appeal, however, was not "a determination of a factual issue." As the Arizona Supreme Court has repeatedly emphasized, its recitation of facts in criminal appellate opinions present the facts "in the light most favorable to sustaining the verdict."3 In other words, the appellate court's statement of facts represents the version of facts that most strongly supports the prosecution's case. It does not purport to be an independent or impartial resolution of the factual issues presented in the case. As such, it is not a "determination of a factual issue" within the meaning of 28 U.S.C. §2254(e)(1), and thus is not entitled to the statutory presumption of correctness. RESPONDENTS' ERRONEOUS ACCOUNT OF THE PROCEDURAL HISTORY IN STATE COURT 3. Respondents assert in their Answer that, in his Petition for Review of the trial court's denial of his Rule 32 Petition for Post-Conviction Relief, Petitioner abandoned all but two of the issues he had raised in his post-conviction petition.4 Based on this erroneous statement of the procedural history, Respondents assert that Petitioner has procedurally defaulted on several of his habeas claims. Respondents reason that Petitioner "abandoned [those claims] by failing to argue [them] in the body of his petition for review to the Arizona Supreme Court."5 But Respondents ignore the supplemental petition for review that Petitioner filed with the Arizona

State v. Dann, 205 Ariz. 557, 562 n.1, 74 P.3d 231, 236 n.1 (2003); accord State v. Cropper, 205 Ariz. 181, 182, 68 P.2d 407, 408 (2003); State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994).
4 5

3

Answer at 7. E.g. Answer at 86. 2

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Supreme Court6 and that the court actually considered7 in denying his petition for review.8 This supplemental petition for review fairly presented these claims to the Arizona Supreme Court, meaning that they are properly before this Court now. 4. "As a general rule, a [habeas] petitioner satisfies the exhaustion requirement if she presents the federal claim to the appropriate state courts in the manner required by state law, thereby `afford[ing] the state courts meaningful opportunity to consider [the] allegations of legal error.'"9 The exhaustion requirement flows from principles of comity, the "respect" of courts of one jurisdiction for the laws and judgments of another.10 Federal courts sitting in habeas should not entertain claims that the state courts have not first had an opportunity to consider. While the touchstone of exhaustion is fair presentation,11 if the petitioner can demonstrate either that he fairly presented his claims to the state courts or that the state courts had an opportunity to consider them, he satisfies the exhaustion requirement. 5. Respondents' efforts to ignore what actually took place when Petitioner asked the Arizona Supreme Court to review the trial court's denial of his postconviction petition subtly suggest that this Court should ignore the principles of PR Doc. 21. Arizona Supreme Court Docket Number CR-03-0218-PC represents the Petition for Review from the trial court's denial of Petitioner's petition for post-conviction relief. As in the amended petition, this docket is referred to throughout this traverse as "PR Doc."
7 8 9 6

PR Doc. 20. PR Doc. 22.

2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 23.3(a), at 958 (4th ed. 2001) (quoting Vasquez v. Hillery, 254, 257 (1986)).
10

BLACK'S LAW DICTIONARY 262 (7th ed. 1999). Now, of course, the exhaustion requirement is statutory. See 28 U.S.C. § 2254(b)(1)(A).
11

See, e.g., Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). 3

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comity that drive the exhaustion requirement.

They focus on "the body of

[Petitioner's] petition for review to the Arizona Supreme Court"12 to argue against exhaustion, as if the Arizona Supreme Court itself would be so wooden and mechanical as to look only at the body of that petition when entertaining such a petition for review. What that court actually did in disposing of Petitioner's petition for review belies Respondents' argument before this Court. 6. The record contains affirmative evidence that the Arizona Supreme Court actually did consider Petitioner's supplement to his petition for review when it denied that petition. The Arizona Supreme Court received Petitioner's supplement and motion to exceed the page limit on his petition.13 It then gave Respondents an opportunity to persuade the court to reject these submissions.14 After hearing from both parties, the court nevertheless filed the supplemental the petition for review.15 Knowing what the court did, Respondents do not suggest that the Arizona Supreme Court had no opportunity to consider the supplement Petitioner filed. They simply ignore it. 7. It is too late for Respondents to argue that, under Arizona law, the Arizona Supreme Court should not have considered the claims in the supplement. Exhaustion is exclusively a federal question; state law has no bearing on the ultimate determination of whether a claim is exhausted for purposes of federal habeas review.16 Apart from the concerns of state law, this Court must satisfy itself that the
12 13 14 15 16

Answer at 86. PR Doc. 17. PR Doc. 19. PR Doc. 20, 21.

See, e.g., Granberry v. Greer, 481 U.S. 129, 134 (1987) (noting that the federal court should take a "fresh look at the [exhaustion] issue" to "determine whether the interests of comity and federalism will be better served by addressing the 4

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Arizona courts had a meaningful opportunity to consider this claim. In light of how the Arizona Supreme Court treated the claims Petitioner pressed in his supplemental petition, there can be no other conclusion than that it availed itself of the opportunity Petitioner gave it to consider them. Accordingly, the claims he presented in the supplement are exhausted and not procedurally defaulted. 8. For the sake of clarity, Petitioner will indicate whether a claim is covered by the supplemental petition for review when he addresses its procedural status and addresses Respondents' arguments on its merits. EXHAUSTION OF CLAIMS 9. In their Answer, Respondents set forth their interpretation of the "law governing exhaustion of claims."17 Petitioner disagrees with Respondents' narrow interpretation of this important doctrine. General Principles of Exhaustion 10. The purpose of the doctrine of exhaustion of state remedies is to permit state courts a fair opportunity to address a petitioner's claim before a federal court may rule on that claim. The exhaustion doctrine, however, does not require that the state courts actually rule on the claim. Rather, the doctrine is satisfied if the state courts are given the opportunity to rule on the claim.18 11. To protect the state court's role in the enforcement of federal law, the exhaustion doctrine affords state courts the first opportunity to correct a constitutional violation.19 In Rose v. Lundy, the Court articulated the rationale for this doctrine: merits forthwith or by requiring a series of additional state . . . court proceedings before reviewing the merits of the petitioner's claim").
17 18

Answer at 9-12.

Castille v. Peoples, 489 U.S. 346, 350-51 (1989) ("once a claim has been fairly presented, the exhaustion requirement is satisfied").
19

Rose v. Lundy, 455 U.S. 509, 518 (1982). 5

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Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity for the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."20 Under this rule, a state prisoner may not present a constitutional claim in federal court until the highest state court has declined its opportunity to grant relief on the federal claim.21 12. Respondents have the burden of demonstrating that a habeas petitioner failed to exhaust a particular claim.22 Normally, a petitioner exhausts a claim by alerting the state court to the existence of the claim in question through briefing.23 Indeed, if an issue has been fairly presented through briefing, that issue will be deemed exhausted even if the state court foregoes the opportunity to address that issue on the merits.24 13. Moreover, a claim may be exhausted notwithstanding a petitioner's failure to present that claim in state court. For example, a habeas petitioner's failure to exhaust a claim in state court will not preclude a federal court from addressing the merits of that claim if there is an absence of an available state corrective process or circumstances exist that render the state process ineffective to protect the rights of the

Id. (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)) (emphasis added). Id.

See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Esslinger v. Davis, 44 F.3d 1515, 1528 (11th Cir. 1995); Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995); English v. United States, 42 F.3d 473, 477 (9th Cir. 1994); Brown v. Maass, 11 F.3d 914 (9th Cir. 1993).
23 24

See Picard v. Connor, 404 U.S. 270, 277-78 (1971). Smith v. Digmon, 434 U.S. 332, 333 (1978). 6

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petitioner.25 14. observed: [The] policy of providing an opportunity for state courts to correct constitutional errors before a petitioner may seek relief in federal court permits us to review for error where the state court has in fact undertaken such review. No disrespect of a state court conviction may be implied from a review that a state appellate court itself has undertaken.27 In short, once the state's highest court has reached the merits of a federal constitutional claim, this court may do the same--regardless of whether the claim was actually presented by the petitioner at any stage in the state proceedings. 15. A state court may sua sponte exhaust a claim (in the absence of presentation) in two different ways. First, the state court may exhaust a claim by actually addressing it within its written opinion.28 Second, it may reach the merits of a claim by noting that it has conducted a review which necessarily requires it to assess a particular group of claims.29 This method of exhaustion, which is discussed in
25 26

In addition, a claim will be exhausted if the highest state court sua

sponte addresses that claim.26 On this point, the Ninth Circuit Court of Appeals has

28 U.S.C. § 2254(b)(1)(B).

Horsley v. Alabama, 45 F.3d 1486, 1489-90 (11th Cir. 1995); Cooper v. Wainwright, 807 F.2d 881, 886-87 (11th Cir. 1986); Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir. 1990) (citing J. Liebman, Federal Habeas Corpus Practice and Procedure (1988)); Turner v. Williams, 812 F. Supp. 1400, 1423 (E.D. Va. 1993).
27 28

Walker v. Endell, 850 F.2d 470, 474 (9th Cir. 1987) (emphasis added).

See Horsley, 45 F.3d at 1489-90; Cooper, 807 F.2d at 887; Walton, 916 F.2d at 1356-57; Dolny, 32 F.3d at 385; Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984). Beam v. Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993); Falcone, v. Stewart, 120 F.3d 1082, 1084 & n.2 (9th Cir. 1997) (vacated on other grounds by Stewart v. Falcone, 524 U.S. 947 (1998)); Rickman v. Dutton, 864 F. Supp. 686, 707 (M.D. Tenn. 1994); see also Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (appellate counsel entitled to rely on Arizona's mandatory review of the death sentence in omitting claims from brief). 7
29

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detail infra in paragraphs 20 through 37, may apply to some of the claims raised in the amended petition in this case. Fair Presentment 16. Exhaustion of a claim is most often accomplished by the Petitioner's act of "fairly presenting" the claim to the state courts. Respondents assert in their Answer that claims or parts of claims Petitioner raises in his amended petition were not fairly presented to the state courts. Respondents therefore argue that this Court is precluded from considering those claims on habeas corpus review. Except as otherwise noted in the amended petition or this traverse, all of the habeas claims before this Court were fairly presented to the state courts. 17. "[E]xhaustion of state remedies requires that petitioners `fairly presen[t]' federal claims to the state courts in order to give the State the `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights."30 To satisfy the exhaustion requirement, a petitioner must "fairly present" the legal and factual substance of every claim to the state's highest court in a manner sufficient to allow the court to address the claims on the merits.31 18. Federal courts should "avoid hypertechnicality" in applying the fair presentment doctrine, however.32 For example, fair presentment does not require a mechanical recital of the federal constitutional claims in the state court. Federal courts have consistently held that a state prisoner cannot be denied access to the federal courts solely because he failed to cite "book and verse on the federal constitution."33 Accordingly, when a prisoner presents a broad assertion to the state
30 31 32 33

Duncan v. Henry, 513 U.S. 364, 365 (1995) (citations omitted). Picard, 404 U.S. at 275; see James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). Williams v. Washington, 59 F.3d 673, 677-78 (7th Cir. 1995). Picard, 404 U.S. at 278. 8

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court, the federal court must look to the underlying factual allegations to determine whether the constitutional claim was "fairly presented" for purposes of the exhaustion requirement. 19. The state court is also put on notice when the petitioner explicitly raises federal claims before a lower court and that court addresses the questions in a manner sufficient to put a reviewing court on notice of the specific federal claims.34 "This is sufficient . . . because an appellate court can be expected to be familiar with the decision upon which it is passing judgment."35 Exhaustion by State Supreme Court Independent Review 20. A petitioner's express presentment of a federal claim is not the only way in which a claim can be exhausted. As mentioned earlier, a state court may reach the merits of a claim by noting that it has conducted a review which necessarily requires it to assess a particular group of claims. In Petitioner's case, the Arizona Supreme Court employed such a method to exhaust, by means of "independent review," all issues relevant to the propriety of Petitioner's death sentences.36 21. The Arizona Supreme Court conducts an independent review of the propriety of each death sentence which--by that court's own description--requires it to review all possible issues relevant to the constitutionality of the sentence and the sentencing proceeding. In conducting this review, the Arizona Supreme Court has been explicit as to the content and scope of its review: "As in all death penalty cases, this Court independently reviews the record to determine the presence or absence of aggravating and mitigating circumstances, and the weight to be given to each. We
34 35 36

Kelly v. Small, 315 F.3d 1063, 1067 (9th Cir. 2003). Id.

See, e.g., State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797 (1992) ("The severity of the death penalty requires that we undertake an extensive, independent review of each death sentence handed down under Arizona law.") 9

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must also determine the propriety of the sentence."37 22. The Arizona Supreme Court has a duty to consider sua sponte all constitutional errors concerning the imposition of a death sentence.38 That duty cannot be waived.39 It is required even where no issues as to the appropriateness of the death sentence are raised in the direct appeal.40 Two cases, State v. McKinney41 and State v. Rogovich,42 illustrate this point. 23. In McKinney, appellate counsel failed to argue that the defendant's conviction for second degree murder was not a prior conviction involving the use or threat of violence so as to qualify as an aggravating circumstance. There is no dispute that appellate counsel failed to raise this issue. In fact, Justice Martone, writing in lone dissent, noted rather vigorously that the Court's review of the issue, not raised on appeal, was not proper. He chastised the Court for going "outside the briefs" to State v. Nash, 143 Ariz 392, 404, 694 P.2d 222, 234 (1985) (citations omitted) (emphasis added). State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976) ("[T]he gravity of the death penalty requires that we painstakingly examine the record to determine whether it has been erroneously imposed."); see State v. Wood, 180 Ariz. 53, 68-69, 881 P.2d 1158, 1173-74 (1994) ("In all capital cases we independently review the aggravating and mitigating circumstances to determine whether the former outweigh the latter and warrant imposition of the death penalty. Our duty is to ensure that Arizona's capital sentencing scheme `genuinely narrow[s] the class of persons eligible for the death penalty.'") (citations omitted). State v. Brewer, 170 Ariz. 486, 494, 826 P.2d 783, 791 (1992) ("[T]he propriety of the death penalty is not for the defendant or the trial court alone to decide. That decision also rests with this court upon automatic appeal . . . regardless of the defendant's own death wish."). See State v. Rogovich, 188 Ariz. 38, 43-44, 932 P.2d 794, 799-800 (1997); State v. Gerlaugh, 135 Ariz. 89, 659 P.2d 642 (1983); see also State v. Stuard, 176 Ariz. 589, 605, 863 P.2d 881, 897 (1993) (sentence reduced where trial court failed to properly find and weigh mitigation although issue not raised on appeal); State v. Smith, 136 Ariz. 273, 275, 279, 665 P.2d 995, 997, 1001 (1983) (sentence vacated for ineffective counsel at sentencing although issue not raised on appeal).
41 42 40 39 38 37

185 Ariz. 567, 917 P.2d 1214 (1996). 188 Ariz. 38, 932 P.2d 794. 10

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find this issue: To begin with, not even the defendant argues that second degree murder is not a crime of violence. He only argues that his second degree murder conviction was not a "previous" conviction within the meaning of § 13703(F)(2). After concluding that Hedlund was previously convicted within the meaning of the statute, the majority sua sponte imposes upon itself the duty to decide whether that conviction 43 involved the use or threat of violence on another person. 24. Nevertheless, the Arizona Supreme Court, as part of its duty to independently review the trial court's findings, did its own examination of the record. The court concluded that, although the prior conviction was for second degree murder, it did not qualify as an aggravating factor under Ariz. Rev. Stat. § 13703(F)(2) because an examination of the statutory elements of the offense revealed that the murder could have been committed recklessly, as opposed to knowingly or intentionally. As such, it did not qualify as a proper aggravating circumstance based on case law interpreting the (F)(2) aggravating factor.44 25. whatsoever: Rogovich presents no sentencing issues for review. Furthermore, at oral argument defense counsel, as an officer of the court, avowed that a careful study of the record produced no arguable issues. Nevertheless, we conduct an independent review of the aggravating and mitigating factors in all capital cases to determine whether the death penalty is warranted.45 26. Rogovich and McKinney demonstrate that the Arizona Supreme Court, In Rogovich, the situation on appeal was even more glaring from the appellant's perspective. In that case, appellate counsel raised no sentencing issues

43 44 45

185 Ariz. at 587, 917 P.2d at 1234 (Martone, J., dissenting). McKinney, 185 Ariz. at 582-83, 917 P.2d at 1229-30.

188 Ariz. at 43-44, 932 P.2d at 799-800 (emphasis added) (citing State v. Wood, 180 Ariz. 53, 68, 881 P.2d 1158, 1173 (1994)). 11

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pursuant to the dictates of the Eighth Amendment, conducts an independent review of all matters relevant to sentencing, even in those cases in which the appellant or his counsel fails to raise a precise issue, or even presents no sentencing issues whatsoever. 27. Further evidence of the state supreme court's independent review is found in State v. Brewer,46 a case in which the capital defendant sought to abandon his direct appeal. The Arizona Supreme Court denied the request, finding that Rule 31.2(b) does not permit the waiver of a mandatory appeal. The state then argued that, even if the appeal could not be voluntarily dismissed, the scope of the review was limited by defendant's waiver. The court disagreed: The State's argument, however, minimizes our statutorily prescribed powers of review and, if accepted, would defeat the obvious purpose of requiring mandatory appeals in capital cases, which is to insure that the death sentence is properly and constitutionally applied. As we read the statutes and the cases interpreting them, this court has a duty, wholly apart from our obligation to review the judgment for errors, to review the validity and propriety of all death sentences. . . . If anything, we believe, as we did in State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), that "[t]he legislature charged this court with the duty to correct [death] sentences which are illegal and sentences where we find that the punishment imposed is greater than the circumstances of the case warrant." In Richmond, this view was premised on language from former A.R.S. § 13-1717, now codified at § 13-4037(A), which instructs in part, Upon an appeal by the defendant either from a judgment of conviction or from sentence, if an illegal sentence has been imposed upon a lawful verdict or finding of guilty by the trial court, the supreme court shall correct the sentence to correspond to the verdict or finding. Thus, once a defendant files an appeal, which is automatic
46

170 Ariz. 486, 826 P.2d 783. 12

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47 48

in capital cases, we are expressly required by statute to review issues affecting both judgment and sentencing in our search for fundamental error. Appellate review of sentencing is, of course, even more necessary in the context of a capital case. The penalty of death differs from all other forms of criminal punishment in terms of severity and irrevocability, and may not be exacted in the absence of certain constitutional safeguards. That is, the eighth and fourteenth amendments prohibit all sentencing procedures creating a substantial risk that the death penalty is inflicted in an arbitrary and capricious manner. We have long held, therefore, that we are bound by the gravity of the death penalty to insure proper compliance with Arizona's death penalty statute. We cannot fulfill this duty by simply inspecting defendant's first-degree murder conviction for fundamental error. We must also conduct a de novo review of the trial court's rulings concerning aggravation and mitigation, and then decide independently whether the death sentence should be imposed. The automatic appeal mechanism guarantees this court both the opportunity and the vehicle to assess the legality of the sentence in each capital case. If the record reveals that the trial court, for whatever reason, improperly sentenced a defendant to death, we must overturn that sentence.47 28. The Arizona Supreme Court's affirmance of a defendant's capital sentence "constitutes at least an implicit rejection of claims of error that fall within its obligatory review even if the defendant has not raised those claims with specificity."48 The scope of the state court's sentencing review is guided by the Arizona Supreme Court's decision in Brewer: In short, the State's attempt to curtail the scope of our review must be rejected for the very reason we denied defendant's motion to dismiss this appeal -- the propriety of the death penalty is not for the defendant or the trial court alone to decide. That decision rests also with this court upon automatic appeal and is guided, above all, by the state's narrowly construed statutes specifying the 170 Ariz. at 493-94, 826 P.2d at 790-91 (emphasis added) (citations omitted). Beam, 3 F.3d at 1306. 13

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limited circumstances for which a defendant 49may be deemed death-eligible, see A.R.S. § 13-703 . . . . The Ninth Circuit has recognized precisely the argument presented above, i.e., Arizona, among six Western states, has adopted a mandatory review of the propriety of a death sentence as part of its state capital jurisprudence. Accordingly, claims based on the existence or non-existence of aggravating factors or mitigating circumstances, and the propriety of the imposition of the death sentence in a particular case, are exhausted by virtue of the mandatory review, even in situations in which the defendant or his counsel fails to appeal at all.50 The Arizona Supreme Court's independent review of the propriety of the imposition of the death penalty in all capital cases results in exhaustion of all sentencing issues in each capital case.51
49 50 51

170 Ariz. at 494, 826 P.2d at 791. Beam, 3 F.3d at 1306.

The Idaho statute referred to in Beam requires the Idaho Supreme Court to determine: 1) whether the sentence of death has been imposed arbitrarily or under the influence of passion; 2) whether the evidence supports the aggravating circumstances found by the court; and 3) whether the sentence is "excessive." Idaho Code Section 19-2827(C)(1)-(3). Arizona's death penalty review similarly requires the Arizona Supreme Court to `painstakingly' review the record for: 1) whether the death penalty has been imposed "in an arbitrary and capricious manner," State v. Watson, 129 Ariz. 60, 63, 628 P.2d 943, 946 (1981), or whether the death penalty was imposed under the influence of passion or prejudice, State v. Woratzeck, 134 Ariz. 452, 458, 657 P.2d 865, 871 (1982); 2) whether each aggravating factor is properly supported by the evidence, State v. Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995); State v. Lopez, 174 Ariz. 131, 143, 847 P.2d 1078, 1090 (1992); and 3) whether the death penalty is excessive (whether it has been reserved for truly exceptional cases which set the defendant apart from the norm), State v. Bible, 175 Ariz. 549, 608, 858 P.2d 1152, 1211 (1993). Thus in the exhaustion context, there is no principled basis for distinguishing the type of review addressed in Beam from Arizona's independent death penalty review. In fact, Arizona's independent death penalty review is more exacting than the automatic review required in Idaho. As seen above, the Arizona Supreme Court reviews capital cases for several kinds of error which need not be evaluated under the Idaho law. Therefore, Arizona's independent death penalty review should likewise 14

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30.

The Arizona Supreme Court `painstakingly examines' the sentencing

record in each capital case to determine if the death penalty has been erroneously imposed.52 Generally, it reviews the sentencing record to evaluate whether the death sentence has been imposed "in an arbitrary and capricious manner,"53 and to determine whether the death penalty was imposed under the influence of passion or prejudice.54 Further, it evaluates the sentencing record to ensure that the death penalty will be reserved for truly exceptional cases which set the defendant apart from the norm.55 31. The state supreme court reviews the record to determine the presence or absence of mitigating or aggravating circumstances.56 Pursuant to this analysis, the court independently scrutinizes the record to determine whether such aggravating factors have been proven beyond a reasonable doubt.57 Likewise, it determines whether the aggravating factors are constitutional and whether the mental state required for them exists.58 32. The state supreme court also evaluates whether all of the mitigating

cause exhaustion of claims within its scope. Stuard, 176 Ariz. at 605, 863 P.2d at 897; Richmond, 114 Ariz. at 196, 560 P.2d at 51.
53 54 55 52

Watson, 129 Ariz. at 63, 628 P.2d at 946. Woratzeck, 134 Ariz. at 458, 657 P.2d at 871.

Bible, 175 Ariz. at 606, 858 P.2d at 1209; State v. Gonzales, 181 Ariz. 502, 513, 892 P.2d 838, 849 (1995) (Independent review conducted to ensure that application of Arizona death penalty meaningfully narrows the class of persons eligible for the death penalty).
56 57 58

State v. Bolton, 182 Ariz. 290, 312, 896 P.2d 830, 852 (1995). Stokley, 182 Ariz. at 516, 898 P.2d at 465.

Wood, 180 Ariz. at 69, 881 P.2d at 1174 (quoting Arave v. Creech, 507 U.S. 463, 474-75 (1993)); Rogovich, 188 Ariz. at 44 n.3, 932 P.2d at 800 n.3 (evaluation of mental state under independent review). 15

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circumstances have been properly considered.59 It independently determines the weight to be given to each of the aggravating and mitigating factors and weighs them against each other.60 33. Moreover, the Arizona Supreme Court has indicated that its review includes a federal constitutional aspect. The court has explicitly recognized that its responsibility of review includes the appraisal of federal constitutional claims.61 Further, the state supreme court has described its independent review in terms of the basic federal constitutional principle which defines post-Furman capital jurisprudence--as a safeguard to determine that the death sentence has not been imposed "in an arbitrary and capricious manner."62 34. Arizona's independent review of the propriety of the death penalty is so exacting that one can confidently assert that Arizona has reached the merits of all constitutional claims within the scope of that review. The Arizona Supreme Court has maintained that it conducts this careful review as to a particular set of issues, and within that review, it covers virtually every federal constitutional question as to sentencing. In determining which issues have been exhausted, a federal court implies no disrespect--and violates no principle of comity or federalism--by trusting that the Arizona Supreme Court has done what it claimed to do. 35. Relying on the Ninth Circuit's decision in Beam v. Paskett and a series

State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990); see also State v. Murray, 184 Ariz. 9, 44-45, 906 P.2d 542, 577-78 (1995).
60 61

59

State v. Lavers, 168 Ariz. 376, 391, 814 P.2d 333, 348 (1991).

State v. Cruz, 175 Ariz. 395, 401, 857 P.2d 1249, 1255 (1993) (as to federal constitutional claims, "we are quite aware of our responsibilities . . . in capital litigation"). Watson, 129 Ariz. at 63, 628 P.2d at 946; see, e.g., Gregg v. Georgia, 428 U.S. 153, 188-89 (1976) (prohibition against arbitrary and capricious imposition of death penalty is a primary concern of Furman). 16
62

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of decisions by the Arizona Supreme Court, the United States District Court for the District of Arizona has held "that a finding by the Arizona Supreme Court that the death penalty has been properly imposed in a given case rests on both state and federal grounds."63 The district court further found that the independent sentencing review in Arizona is functionally indistinguishable from the Idaho system at issue in Beam, and concluded that "affirmance by the Arizona Supreme Court of a defendant's capital sentence `constitutes at least an implicit rejection of claims of error that fall within its obligatory review even if the defendant has not raised those claims with specificity[.]'"64 Accordingly, the district court must review claims raised by a petitioner to determine whether they fall within the parameters of Beam.65 36. All claims that relate to the defendant's capital sentencing should be deemed exhausted by Arizona's independent death penalty review if 1) they are readily apparent in the record of the sentencing proceedings, or 2) they address one of the specific areas that the Arizona Supreme Court claims to consider in that process. This conclusion is consistent with the underlying rationale of the exhaustion doctrine: Arizona has unquestionably received a fair opportunity to address all claims within the scope of its painstaking review. 37. For the foregoing reasons, all sentencing issues presented in Petitioner's First Amended Petition are exhausted and ripe for review on the merits. Staying this Proceeding to Permit Petitioner to Exhaust Claims 38. To the extent that this Court finds any of Petitioner's claims unexhausted, Petitioner asks this Court to stay this proceeding, holding the claims in Spencer v. Stewart, No. CV 98-0068-PHX-SRB (D. Ariz. May 31, 2001) slip op. at 12, (Doc. No. 129) (citing Nash v. Stewart, No. CV 97-1104-PHX-RGS (D. Ariz. (Jul. 17, 2000) slip op. at 17-23. (Doc. No. 74)).
64 65 63

Spencer, No. CV 98-0068 at 14 (citing Beam, 3 F.3d at 1306). Id. 17

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abeyance until he can return to the Arizona courts to exhaust them.66 This stay-andabeyance procedure would "enable all constitutional claims to be settled in one federal habeas proceeding," thereby promoting judicial economy, reducing piecemeal litigation, and facilitating Petitioner's ability to have a federal court pass on the merits of his constitutional claims.67 39. With the Supreme Court's decision in Rhines, the stay-and-abeyance procedure approved by the Ninth Circuit in Olvera now enjoys sanction from the high court. In Rhines, a federal habeas petitioner filed a pro se petition challenging his conviction in federal court.68 Counsel was appointed who raised 35 additional constitutional defects in his sentence.69 The state challenged 12 of those claims as unexhausted, and the district court agreed that 8 were in fact unexhausted.70 Upon the petitioner's motion, the district court stayed the proceedings, holding them in abeyance to allow the petitioner to return to state court to exhaust the unexhausted claims. The state challenged this procedure on appeal, and the Supreme Court upheld it. 40. Because the requirement of total exhaustion stems from principles of federal-state comity, habeas courts must dismiss so-called "mixed" petitions so that habeas petitioners may return to state court to exhaust the unexhausted claims.71 However, "[w]hen we decided Lundy, there was no statute of limitations on the filing See Rhines v. Weber, 544 U.S. ___, 125 S. Ct. 1528, 1532-33 (2005); Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004); Carmichael v. Warden, Maine State Prison, 370 F. Supp. 2d 347, 349-51 (D. Me. 2005).
67 68 69 70 71 66

Thompson v. Wainwright, 714 F.2d 1495, 1499 (11th Cir. 1983). Rhines, 125 S. Ct. at 1532. Id. Id. Rose v. Lundy, 455 U.S. 509, 522 (1982). 18

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of federal habeas petitions. As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease."72 But with the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and its statute of limitations in 1996, habeas "petitioners who come to federal court with `mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims."73 The solution to this dilemma is the stay-and-abeyance procedure approved by Rhines.74 41. District courts must employ the stay-and-abeyance procedure because of the AEDPA's statute of limitations. "Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court."75 In order to promote finality in litigation, "district courts should place reasonable time limits on a petitioner's trip to state court and back."76 Where the petitioner "has good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory tactics," the district court abuses its discretion when it does not grant a stay.77 42. If this Court finds any of Petitioner's claims unexhausted, Petitioner asks

Rhines, 125 S. Ct. at 1533 (citing Slack v. McDaniel, 529 U.S. 473, 486 (2000)).
73 74 75 76 77

72

Id. Id. at 1535 (citing Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Id. Id. Id. at 8; see also Cassett v. Stewart, 406 F.3d 614, 624-25 (9th Cir. 2005). 19

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this Court to allow him the opportunity to demonstrate cause for failing to exhaust those claims before it exercises its discretion to deny him a stay.78 The stay-andabeyance procedure allows this Court to avoid a speculative ruling on the procedural status of Petitioner's claims under Arizona's rules of preclusion because it facilitates the state's right in our federal system to have the first opportunity to correct any constitutional errors in Petitioner's convictions or sentences. PROCEDURAL DEFAULT 43. In their Answer, Respondents state very broadly that "a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted."79 Respondents oversimplify the doctrine of procedural default. 44. Procedural default is an affirmative defense.80 Accordingly, a respondent in a habeas corpus proceeding has the burden to raise and prove the defense of procedural default. When a respondent asserts a procedural default defense, the reviewing court must undertake a complex analysis to determine whether the respondent has truly established the particular defense of procedural default. Respondents Fail to Establish the Affirmative Defense of Procedural Default for any of Petitioner's Constitutional Claims To establish a procedural default in this case, Respondents must prove

45.

that a procedural rule applicable to the claim exists and that Petitioner failed to comply with the procedural rule. Next, Respondents must establish that the state courts have actually enforced the procedural sanction. A valid procedural bar must

78 79 80

See Rhines, 125 S. Ct. at 1535. Answer at 13.

Trest v. Cain, 522 U.S. 87, 89 (1997) ("[P]rocedural default is normally a `defense' that the State is `obligated to raise' and `preserv[e]' if it is not to `lose the right to assert the defense thereafter.'") (quoting Gray v. Netherland, 518 U.S. 152, 165-66 (1996) (referencing Jenkins v. Anderson, 447 U.S. 231, 234 n.1 (1980))). 20

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be both established in advance and strictly and regularly applied.81 Absent these conditions, there can be no valid procedural bar to federal relief. 46. Further, Respondents must demonstrate that the state procedural rule is an adequate and independent ground justifying foreclosure of federal review of the federal constitutional claim. For a state procedural forfeiture to constitute an "independent" ground, the state court decision must not appear to rest primarily upon federal law or to be interwoven with federal law.82 47. A respondent must prove that all of the components of a procedural default have occurred in order to establish the existence of the bar. And even then, the claim is not necessarily barred from federal habeas review. For, even if Respondents successfully satisfy the strict requirements of the affirmative defense and establish a procedural default, the Court may nevertheless excuse the default if Petitioner demonstrates cause for violating the state procedural rule and prejudice resulting from the alleged constitutional error.83 Finally, even if Petitioner is unable to demonstrate cause and prejudice, the Court may still address the merits of a procedurally defaulted claim to avoid a miscarriage of justice.84 48. In this case, Respondents have failed to prove the affirmative defense of procedural default with regard to any of the constitutional claims in the amended petition that Respondents allege are defaulted. Apparently, Respondents believe that merely reciting the words "procedural default" will satisfy their obligation to actually Ford v. Georgia, 498 U.S. 411, 424 (1991); Dugger v. Adams, 489 U.S. 401, 410-11 n.6 (1989). Johnson v. Mississippi, 486 U.S. 578, 587-89 (1988); Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994).
82 83 81

See, e.g., Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).

Murray v. Carrier, 477 U.S. 478, 491 (1986); Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). Schlup v. Delo, 513 U.S. 298, 328 (1995); Kyles v. Whitley, 514 U.S. 419, 432-33 (1995); Wainwright, 433 U.S. at 90-91. 21
84

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prove the affirmative defense. They are wrong. A review of Respondents' Answer reveals that in none of the instances in which they invoke "procedural default" do they attempt to establish the facts that are the sine qua non of any procedural default defense. Specifically, Respondents fail to prove that: (1) Petitioner has actually violated an applicable state procedural rule; (2) the procedural violation provides an "adequate" and "independent" state ground for denying Petitioner's federal constitutional claim; and (3) the state supreme court clearly and unambiguously relied on the procedural violation as its reason for rejecting the claim.85 In the Alternative, Petitioner Can Demonstrate Cause and Prejudice 49. Because Respondents have failed to plead, much less prove, these critical elements of the procedural default affirmative defense with regard to any of the claims in the amended petition, this Court may not find any of the claims procedurally defaulted. Nevertheless, in an abundance of caution, Petitioner will address cause and prejudice in the claims below. However, his arguments concerning cause and prejudice, as well as fundamental miscarriage of justice, will depend largely on how this Court rules on the procedural status of each of the claims. For instance, if the Court were to determine that the basis of a claim was available but not raised, Petitioner might attempt to show cause and the resulting prejudice by demonstrating that counsel was ineffective.86 If the Court were to determine that numerous claims were available, Petitioner might demonstrate ineffective assistance of counsel based on a cumulative prejudice test.87 If the Court were to determine that Petitioner failed See R. Hertz and J. Liebman, Federal Habeas Corpus Practice and Procedure, § 26.1 (4th ed. 2001), and cases cited therein. See, e.g., Murray, 477 U.S. 478; Baylor v. Estelle, 94 F.3d 1321, 1324 (9th Cir. 1996).
87 86 85

1995).

See, e.g., Harris By and Through Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 22

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adequately to present facts to the Arizona Supreme Court, Petitioner might respond by arguing that the conclusion involves mixed questions of fact and law and cannot be reached without an evidentiary hearing.88 If claims are found to be procedurally defaulted, Petitioner maintains that he has been prejudiced. That prejudice cannot be viewed globally, however. The Court must consider the context of each claim, and the prejudice resulting from that claim. 50. "Cause" is a factual question that this Court must independently determine. Accordingly, Petitioner is requesting discovery and a hearing on the "cause" for the failure to raise any unexhausted claims on direct appeal.89 STANDARD FOR GRANTING THE WRIT 51. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") came into effect on April 24, 1996. Petitioner filed his Petition of Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) on March 17, 2004. Accordingly, the AEDPA applies to Petitioner's case.90 52. Section 2254 governs this Court's authority to grant Petitioner habeas relief. Particularly relevant are the provisions of § 2254(d).91 In their Answer, Buffalo v. Sunn, 854 F.2d 1158, 1165-66 (9th Cir. 1988); Williams v. Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996). Jenkins v. Anderson, 447 U.S. 231, 234-35 n.1 (1980) ("application of the `cause' and `prejudice' standard may turn on factual findings that should be made by a district court."). See also Buffalo, 854 F.2d at 1165-66 (district court should conduct hearing where there are disputed facts concerning cause); Williams v. Turpin, 87 F.3d at 1211 (district court erred in refusing to hold evidentiary hearing to assess sufficiency of petitioner's allegation of cause and prejudice for default). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that new provisions of AEDPA generally apply only to cases filed after the AEDPA became effective on April 24, 1996); Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000).
91 90 89 88

Section 2254(d) provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was 23

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Respondents refer to § 2254(d) as a "standard of review."92 Once again, Respondents oversimplify the legal principles involved. In truth, § 2254 restricts a federal court's authority to grant relief; it does not restrict its authority to review the state court's decision. In fact, a federal court can determine whether a state court's "adjudication" was "contrary to, or involved an unreasonable application of, clearly established Federal law" or whether it "resulted in a decision that was based on an unreasonable determination of the facts," only after it has conducted an independent, de novo evaluation of the Petitioner's constitutional claim.93 53. If a state court has not reached the merits of a claim, § 2254, by its plain language, does not apply to the federal court's consideration of that claim.94 Thus, for example, if the state court disposed of the claim on state procedural grounds, § 2254(d) is inapplicable. 54. Only if the state court adjudicated the Petitioner's claim on the merits does § 2254 even arguably apply. Even in this circumstance, however, the manner adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.
92 93

Answer at 19.

See, e.g., Ramdass v. Angelone, 530 U.S. 156 (2000), and Weeks v. Angelone, 528 U.S. 225 (2000), both of which discuss § 2254(d) after a thorough discussion of the merits of the constitutional claim at issue. Section 2254(d) applies only to a "claim that was adjudicated on the merits in State court proceedings." See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); Hunterson v. DiSabato, 308 F.3d 236, 245 n.9 (3rd Cir. 2002); Gruning v. DiPaolo, 311 F.3d 69, 71 (1st Cir. 2002). 24
94

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of the state court's "adjudication" may prevent the federal court from applying § 2254(d). Section 2254(d) specifically speaks of the state court's "adjudication" of the Petitioner's claim, rather than of its "decision." court reached its ruling. 55. Respondents erroneously cite Early v. Packer95 for the proposition that "[i]f the state court neither explains its ruling nor cites United States Supreme Court authority, this Court must nevertheless examine Supreme Court precedent to decide whether the state court reasonably applied federal law."96 Packer does not stand for this proposition. If a state court fails to provide an explanation for its denial of relief on the merits, a federal court cannot determine whether the "adjudication