Free Response to Amended Habeas Petition - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) ALAN L. AMANN ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 400 WEST CONGRESS, BLDG. S­315 TUCSON, ARIZONA 85701B1367 TELEPHONE: (520) 628­6520 (STATE BAR NUMBER 18969) [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
BRUCE LEE SCOTT,
Petitioner,

CIV 04-376-PHX-MHM (VAM)

-vsANSWER TO PETITION FOR DEPUTY WARDEN RYDER, et WRIT OF HABEAS CORPUS al.,
Respondents.

Respondents, pursuant to Rules 5 and 11 of the Rules Governing § 2254

17 Cases, and this Court's order of May 18, 2006, hereby answer the Petition for Writ 18 of Habeas Corpus. For the reasons set forth in the following Memorandum of 19 Points and Authorities, Respondents respectfully request that the petition be denied 20 and dismissed with prejudice. 21 22 23 24 25 26 27 28
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DATED this 17th day of August, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL
S/ALAN L. AMANN ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR RESPONDENTS

1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL AND PROCEDURAL BACKGROUND. On September 8, 1998, Charlie Bremer went with Petitioner and Ramon

4 Alva to a desert area north of Phoenix, thinking he would sell them a gun. (Exhibit 5 J: R.T. 4/6/00, at 19­34.) Petitioner shot and killed Bremer, and he and Alva then 6 burned Bremer's truck with Bremer's body in it. (Id.) Petitioner was charged with 7 first-degree murder, and a jury convicted him of the lesser offense of second8 degree murder. (Exhibit A: State v. Scott, 1 CA­CR 00­0434, at ¶ 1, n. 1 (Ariz. 9 App. November 28, 2001) (mem. decision).) On May 20, 2000, the trial court 10 sentenced Petitioner to an aggravated, 18-year prison sentence. (Id. at ¶ 1; Exhibit 11 B: Sentencing Minute Entry.) 12 On direct appeal, Petitioner contended that (1) Arizona's first-degree murder 13 statute was unconstitutional; (2) he was denied due process by the trial court's 14 refusal to admit polygraph evidence; (3) the trial court abused its discretion in 15 admitting evidence of Petitioner's prior acts; and (4) the trial court violated 16 Petitioner's due process rights by "death-qualifying" the jurors who decided 17 Petitioner's case. (Exhibit A, at ¶¶ 2­24; Exhibit C: Opening Brief, at 11­38.) The 18 Arizona Court of Appeals rejected Petitioner's contentions and affirmed his 19 conviction and sentence. (Exhibit A, at ¶¶ 2­25.) On October 30, 2001, the 20 Arizona Supreme Court denied Petitioner's petition for review. 21 Mandate.) 22 On November 29, 2001, Petitioner initiated state post-conviction relief 23 (PCR) proceedings by filing a notice of PCR. (Exhibit E: Notice.) Petitioner then 24 claimed, in his PCR petition, that his 18-year aggravated prison sentence violates 25 Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000), and Ring v. 26 Arizona, 536 U.S. 584, 592­593, 122 S. Ct. 2428 (2002). (Exhibit F: PCR 27 Petition.) The trial court dismissed Petitioner's PCR petition, finding Petitioner's 28 Apprendi/Ring claim precluded under Ariz. R. Crim. P. 32.2(a)(3), which preludes
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(Exhibit D:

1 PCR relief on any ground "waived at trial, on appeal, or in any previous collateral 2 proceeding." (Exhibit G: Minute Entry.) Petitioner sought review before the 3 Arizona Court of Appeals. (Exhibit H: Order.) 4 On February 23, 2004--while Petitioner's state PCR proceeding was still

5 pending--Petitioner filed a federal habeas corpus petition. On April 29, 2004, this 6 Court dismissed the petition with leave to amend to include only exhausted claims. 7 On May 10, 2004, Petitioner filed an amended petition in which he indicated that 8 his state PCR proceeding was still pending, which resulted in this Court staying 9 Petitioner's habeas proceeding. 10 On June 29, 2004, and April 20, 2005, respectively, the Arizona Court of

11 Appeals and the Arizona Supreme Court denied review. (Exhibit H: Order; Exhibit 12 I: Order.) On September 8, 2005, this Court lifted the stay in Petitioner's habeas 13 proceeding and directed that Petitioner file a second amended habeas petition, 14 which he did on December 9, 2005. This Court dismissed the petition with leave 15 to refile because Petitioner had failed to name his custodian as Respondent. On 16 April 21, 2006, Petitioner filed a third amended habeas petition. 17 II. 18 TIMELINESS UNDER AEDPA. Petitioner's habeas petition appears to be timely. Federal law requires that a

19 state prisoner file his habeas petition within one year from the "date on which the 20 judgment became final by the conclusion of direct review or the expiration of the 21 time for seeking such review," 28 U.S.C. § 2244(d)(1)(A), with time tolled during 22 the pendency of properly instituted post-conviction relief proceedings, 28 U.S.C. 23 § 2244(d)(2). 24 Petitioner's direct appeal became final for federal habeas purposes on

25 January 28, 2002, 90 days after the Arizona Supreme Court's October 30, 2001 26 denial of review. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999)

27 (§ 2244(d)(1)(A)'s direct review period "includes the period within which a 28 petitioner can file a petition for a writ of certiorari from the United States Supreme
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1 Court"); Rule 13.1, Rules of the United States Supreme Court (affording parties 90 2 days from entry of order denying discretionary review by state court of last resort 3 in which to seek certiorari). By that time, Petitioner had already instituted state 4 post-conviction proceedings, which remained pending until April 20, 2005. 5 Petitioner's first, second, and third amended petitions were all filed prior to April 6 19, 2006, the date on which Petitioner's 1-year limitations period expired. 7 III. 8 EXHAUSTION OF STATE REMEDIES AND PROCEDURAL DEFAULT. Three of Petitioner's four habeas claims are not cognizable on habeas review

9 because they were not fairly presented to the state courts as federal claims, and 10 thus are procedurally defaulted. 11 Federal habeas relief is available only to remedy violations of federal law--

12 that is, "of the Constitution or laws or treaties of the United States." 28 U.S.C. 13 § 2254(a). See also Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475 (1991) 14 ("[W]e reemphasize that . . . [I]n conducting habeas review, a federal court is 15 limited to deciding whether a conviction violated the Constitution, laws, or treaties 16 of the United States"); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092 (1990) 17 ("[F]ederal habeas corpus relief does not lie for errors of state law."). 18 To be cognizable, a state prisoner's federal claim must first have been

19 presented to the state courts. 28 U.S.C. § 2254 (b)(1), (c). See also Baldwin v. 20 Reese, 541 U.S. 27, 29, 124 S. Ct. 1347 (2004) ("Before seeking a federal writ of 21 habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. 22 § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct 23 alleged violations of its prisoners' federal rights") (citations and internal quotation 24 marks omitted); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728 (1999) 25 ("Before a federal court may grant habeas relief to a state prisoner, the prisoner 26 must exhaust his remedies in state court.") This "exhaustion" doctrine requires 27 that a state prisoner give the state courts "a full and fair opportunity to resolve 28 federal constitutional claims before [they] are presented to the federal courts."
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1 O'Sullivan, 526 U.S. at 844­45. A "full" opportunity is presented the state courts 2 when the state prisoner "invok[es] one complete round of the State's established 3 appellate review process." Id. In Arizona, a round is "complete" with respect to a 4 claim once it is presented to the Arizona Supreme Court, notwithstanding that the 5 Arizona Supreme Court is a court of discretionary review. See Baldwin, 541 U.S. 6 at 29 ("[T]he prisoner must fairly present his claim in each appropriate state court 7 (including a state supreme court with powers of discretionary review)") (emphases 8 added); O'Sullivan, 526 U.S. at 845­48 (requiring state habeas petitioner to file 9 petition for discretionary review in order to exhaust state remedies). But see 10 Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (noncapital Arizona state 11 prisoners who have not received a life sentence need not seek review by the 12 Arizona Supreme Court to exhaust their federal claims because discretionary 13 review by that court is "unavailable"). 14 A "fair" opportunity is given by "fairly presenting" the claim to the state

15 courts; i.e., the prisoner must "describe the operative facts and legal theory upon 16 which" the claim is based. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001) 17 (citation and internal quotation marks omitted). Further, the federal nature of the 18 claim must be apparent from the petition or brief presented to the state court. See 19 Baldwin, 541 U.S. at 32 (petition or brief must suffice in itself to "alert [the state 20 court] to the presence of a federal claim"). Raising a state claim similar to a 21 federal claim does not by itself render the federal claim fairly presented. Duncan v. 22 Henry, 513 U.S. 364, 366, 115 S. Ct. 887 (1995); Hiivala v. Wood, 195 F.3d 1098, 23 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal 24 error is insufficient to establish exhaustion."). A claim not fairly presented to the 25 state courts is not properly exhausted for federal habeas purposes, and habeas relief 26 is unavailable on it. Baldwin, 541 U.S. at 29. See also Picard v. Connor, 404 U.S. 27 270, 275, 92 S. Ct. 509 (1971) (setting forth the fair presentment requirement); 28 Tamalini, 249 F.3d at 898­99 (holding petitioner's claims unexhausted due to
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1 failure to "fairly present" them to the state courts). 2 If the state courts refuse to entertain a federal claim because of

3 noncompliance with state procedural rule, and that claim consequently is not or 4 cannot be fairly presented to the state courts, then that claim is "procedurally 5 defaulted" and is not cognizable on habeas review. Coleman v. Thompson, 501 6 U.S. 722, 729­30, 111 S. Ct. 2546 (1991). The procedural default rule rests on the 7 "independent and adequate state ground" doctrine, which provides that the federal 8 courts "will not review a question of federal law decided by a state court if the 9 decision of that court rests on a state law ground"--either substantive or 10 procedural--that is "independent of the federal question and adequate to support 11 the judgment." Coleman, 501 U.S. at 729. A state procedural default constitutes 12 an independent and adequate state ground barring federal habeas review when the 13 state rule is "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 14 411, 423­24, 111 S. Ct. 850 (1991); James v. Kentucky, 466 U.S. 341, 348­49, 104 15 S. Ct. 1830 (1984). 16 A procedural default in state court may take one of two forms: first, the state

17 courts may have expressly declined to entertain the claim for noncompliance with 18 state procedural rule. In such cases, to bar habeas review of the claim, "the state 19 court must actually have relied on the procedural bar as an independent basis for its 20 disposition of the case." Harris v. Reed, 489 U.S. 255, 261­62, 109 S. Ct. 1038 21 (1989) (citation omitted). Accordingly, procedural default applies only when "the 22 last state court rendering a judgment in the case `clearly and expressly' states that 23 its judgment rests on a state procedural bar." Harris, 489 U.S. at 263. See also 24 Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469 (1983) (state court must 25 plainly state its reliance on procedural bar to preclude federal review of claim). 26 Second, a claim never presented to the state courts is deemed technically 27 exhausted, and procedurally defaulted, if "a return to state court for exhaustion 28 would be futile" due to noncompliance with state procedural rule. Phillips v.
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1 Woodford, 267 F.3d 966, 974 (9th Cir. 2001). See also Valerio v. Crawford, 306 2 F.3d 742, 770 (9th Cir. 2002); Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 3 2001); Szuchon v. Lehman, 273 F.3d 299, 323 n. 14 (3rd Cir. 2001) ("Exhaustion 4 will be excused as `futile' if `the state court would refuse on procedural grounds to 5 hear the merits of the claims.'"). 6 A procedurally defaulted claim is not cognizable on habeas review unless the

7 petitioner shows valid cause for the default and actual prejudice from the claimed 8 constitutional violation, or that the habeas court's failure to consider the claim will 9 result in a miscarriage of justice. Coleman, 501 U.S. at 749­50; Wainwright v. 10 Sykes, 433 U.S. 72, 86­91, 97 S. Ct. 2497 (1977). To show cause, a petitioner 11 must show that "some objective factor external to the defense impeded counsel's 12 efforts to comply with the state procedural rule." Murray v. Carrier, 477 U.S. 478, 13 488, 106 S. Ct. 2639 (1986). To show prejudice, the petitioner must show "not 14 merely that the errors at his trial created a possibility of prejudice, but that they 15 worked to his actual and substantial disadvantage, infecting his entire trial with 16 error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 17 S. Ct. 1584 (1982). See also White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). 18 Finally, a showing of a "fundamental miscarriage of justice" (or "actual

19 innocence," Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514 (1992)) is "not 20 itself a constitutional claim, but instead a gateway through which a habeas 21 petitioner must pass to have his otherwise barred constitutional claim considered 22 on the merits." Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851 (1995) (citation 23 omitted). See also Herrera v. Collins, 506 U.S. 390, 404­05, 113 S. Ct. 853 (1993) 24 (claim of actual innocence is not a freestanding claim in itself, but excuses a 25 procedural default, allowing the habeas court to consider the defaulted 26 constitutional claim on its merits.) To invoke this exception, the petitioner must 27 show that newly-discovered evidence exists that makes it "more likely than not 28 that no reasonable juror would have found [him] guilty beyond a reasonable
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1 doubt." Schlup, 513 U.S. at 328. 2 Here, three of Petitioner's four habeas claims are procedurally defaulted.

3 Petitioner's claims 1 and 2, which allege that the trial court abused its discretion in 4 precluding polygraph test evidence and in admitting evidence of Petitioner's prior 5 acts, respectively, were presented to the state courts entirely as violations of state 6 law, notwithstanding Petitioner's vague and generalized claims of being denied his 7 "due process" rights. (See Exhibit B, at 18­32.) See Gray v. Netherland, 518 U.S. 8 152, 163, 116 S. Ct. 2074, 2081 (1996) ("[I]t is not enough to make a general 9 appeal to a constitutional guarantee as broad as due process to present the 10 `substance' of such a claim to a state court"); Hiivala v. Wood, 195 F.3d 1098, 1107 11 (9th Cir. 1999) ("[G]eneral appeals to broad constitutional principles, such as due 12 process, equal protection, and the right to a fair trial, are insufficient to establish 13 exhaustion."). Given the nature of Petitioner's claims, the Arizona Court of

14 Appeals "understandably confined its analysis to the application of state law" in 15 disposing of them. Duncan v. Henry, 513 U.S. 364, 366, 115 S. Ct. 887, 888 16 (1995). (See Exhibit A, at ¶¶ 5­19.) 17 Not only did Petitioner fail to fairly present claims 1 and 2 to the state In Arizona, post-

18 courts, but he cannot now return to state court to do so.

19 conviction relief is not available on any ground "[t]hat has been waived at trial, on 20 appeal, or in any previous collateral proceeding." Ariz. R. Crim. P. Rule

21 32.2(a)(3). His failure to raise those claims on federal grounds on direct appeal 22 rendered them waived and precluded under state law. Ariz. R. Crim. P. Rule 23 32.2(a)(3). See also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding 24 unexhausted claims procedurally defaulted "because [petitioner] is now time25 barred under Arizona law from going back to state court") (citing Rule 32.2(a), 26 Ariz. R. Crim. P.). Rule 32.2(a) constitutes an adequate and independent state 27 ground justifying a procedural bar. Stewart v. Smith, 536 U.S. 856, 122 S. Ct. 2578 28 (2002). Those claims are therefore procedurally defaulted and are not cognizable
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1 on habeas review. 2 Similarly, Petitioner's claim 4, which alleges that his 18-year prison

3 sentence violates his Sixth Amendment right to a jury determination of all facts 4 essential to the sentence, is procedurally defaulted. In dismissing Petitioner's PCR 5 petition, the trial court expressly found that claim procedurally precluded under 6 Ariz. R. Crim. P. 32.2(a)(3) because of Petitioner's failure to raise it in his direct 7 appeal. Apprendi was decided on June 26, 2000, slightly more than a month after 8 Petitioner was sentenced and while Petitioner's direct appeal was still pending. 9 Petitioner in fact did not file his direct appeal Opening Brief until December 13, 10 2000, almost 6 months after Apprendi had been decided. The trial court therefore 11 correctly found Petitioner's Apprendi claim waived and precluded under Rule 12 32.2(a)(3), and that claim is procedurally defaulted for federal habeas purposes. 13 Finally, Petitioner cannot show cause and prejudice or a fundamental

14 miscarriage of justice excusing the procedural defaults. See Beaty, 303 F.3d at 987 15 (procedurally defaulted claims cognizable on habeas if cause and prejudice exists 16 to excuse the default or if failure to review the claims would result in a 17 fundamental miscarriage of justice). The aforementioned claims are therefore 18 procedurally barred and provide no basis for habeas relief. See id. (affirming 19 district court's denial of procedurally barred claims). 20 IV. 21 ARGUMENT. The only claim Petitioner fairly presented to the state courts was his claim

22 that "death qualifying" his jury violated his Sixth Amendment right to an impartial 23 jury taken from a cross-section of the community. That claim, however, fails on its 24 merits and does not justify habeas relief. 25 "AEDPA circumscribes a federal habeas court's review of a state court

26 decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 1172 (2003). 27 Habeas relief is not available with respect to a claim adjudicated on the merits in 28 state court unless that adjudication "resulted in a decision that was contrary to, or
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1 involved an unreasonable application of, clearly established federal law, as 2 determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d), or 3 unless it "resulted in a decision that was based on an unreasonable determination of 4 the facts in light of the evidence presented in the State court proceeding," 28 5 U.S.C. § 2254(d)(2). 6 "[C]learly established federal law, as determined by the Supreme Court"

7 means "the holdings, as opposed to the dicta, of [the Supreme Court's decisions] at 8 the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 9 412, 120 S. Ct. 1495 (2000). A state court decision is "contrary to" clearly 10 established federal law if it "applies a rule that contradicts the governing law set 11 forth in [Supreme Court] cases" or if it "confronts a set of facts that are materially 12 indistinguishable from a decision of [the Supreme Court] and nonetheless arrives at 13 a result different from our precedent." Williams, 529 U.S. 362, 405­06, 120 S. Ct. 14 1495 (2000). See also Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848 (2003). 15 A state court "unreasonably appli[es]" Supreme Court precedent if the habeas 16 petitioner demonstrates that the court applied such precedent to his case in an 17 "objectively unreasonable manner." Vincent, 538 U.S. at 641 (internal brackets 18 omitted). Mere error or even "clear error" in a state-court decision is not enough to 19 justify habeas relief. See Andrade, 538 U.S. at 75 ("The gloss of clear error fails to 20 give proper deference to the state courts by conflating error (even clear error) with 21 unreasonableness."). Finally, under 28 U.S.C. § 2254(e)(1), "a determination of a 22 factual issue made by a state court shall be presumed to be correct," and "the 23 applicant shall have the burden of rebutting the presumption of correctness by clear 24 and convincing evidence " 25 Far from supporting Petitioner's claim, the "clearly established federal law"

26 applicable to that claim squarely refutes it. Lockhart v. McCree, 476 U.S. 162, 27 173­78, 106 S. Ct. 1758 (1986), held that the Sixth Amendment fair-cross-section 28 requirement does not preclude "death qualifying" juries--that is, removing for
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1 cause jurors whose opposition to the death penalty render them unable to 2 impartially apply the law to the facts adduced from trial. The Arizona Court of 3 Appeals' rejection of this claim therefore was not contrary to nor an unreasonable 4 application of United States Supreme Court precedent. 5 V. 6 CONCLUSION. Based on the foregoing authorities and arguments, Respondents respectfully

7 request that the Petition for Writ of Habeas Corpus be denied and dismissed with 8 prejudice. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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RESPECTFULLY SUBMITTED this 17th day of August, 2006.
TERRY GODDARD ATTORNEY GENERAL S/ALAN L. AMANN ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION ATTORNEYS FOR RESPONDENTS

1 I hereby certify that on August 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 2 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 3 BRUCE L. SCOTT, #151963 Arizona State Prison Complex 4 YUMA-CHEYENNE P.O. Box 13006 5 Yuma, AZ 85366 6 7 8 9 10 CRM00-0730 124924 11 PWHC_ans_Tuc.dot 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Petitioner in Pro Per s/ALAN L. AMANN

1 2

LIST OF EXHIBITS

3 Exhibit A. Court of Appeals Memorandum Decision filed June 28, 2001; 4 Exhibit B. 5 Exhibit C. 7 Exhibit E. 8 Exhibit F. Sentencing Minute Entry filed May 20, 2000; Appellant's Opening Brief

6 Exhibit D. Court of Appeals Order and Mandate filed November 29, 2001; Notice of Post-Conviction Relief filed November 29, 2001; Petition for Rule 32 Relief;

9 Exhibit G. Minute Entry filed May 19, 2003; 10 Exhibit H. Court of Appeals Order filed June 29, 2004; 11 Exhibit I. 12 Exhibit J. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Supreme Court Order dated April 19, 2005; R.T. dated April 6, 2000.