Free Motion for Hearing or Conference - District Court of Arizona - Arizona

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

Jon M. Sands Federal Public Defender Michael L. Burke (Arizona Bar No. 013173) Justin F. Marceau (California Bar No. 243479) Assistant Federal Public Defenders 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] [email protected] Telephone: (602) 382-2816 Facsimile: (602) 889-3960 Attorneys for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Richard Farrall, Jr., Petitioner, vs. Dora B. Schriro, et al, Respondents. Petitioner, Richard Farrall, Jr., through undersigned counsel, hereby requests an evidentiary hearing on the issue of whether Mr. Farrall's plea of no contest was knowing and voluntary under the Fifth and Sixth Amendments as incorporated by the Due Process Clause of the Fourteenth Amendment. On March 3, 2008, a status conference was held in this case and counsel for petitioner informed the court that Mr. Farrall has alleged a colorable claim entitling him to an evidentiary hearing under Townsend v. Sain. Specifically, in light of the multiple witnesses who are able to provide compelling and credible support for Mr. Farrall's claim of innocence, counsel suggested that the allegations regarding involuntariness and ineffective assistance of counsel warrant adversarial testing in this Court. This Court agreed in a preliminary manner, but requested that counsel make a formal request for an evidentiary hearing. (TR. Mar. 3, 2008 at 6) ("But in any No. CV 04-00260-PHX-EHC Motion for Evidentiary Hearing

Page 1 Case 2:04-cv-00260-EHC-BPV Document 52 Filed 04/01/2008 Page 1 of 18

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

event it seems to me they're entitled to have some hearing."). Mr. Farrall has alleged that his ability to enter a knowing and intelligent plea was impinged by, among other factors, ineffective assistance of counsel. As set out in detail in the accompanying memorandum of law, the existence of evidence suggesting that Mr. Farrall was significantly prejudiced by pleading no contest, in conjunction with the fact that his allegations, if true, would establish multiple constitutional injuries, compels the conclusion that a brief evidentiary hearing is required in this case. Respectfully submitted this 1st day of April, 2008. Jon M. Sands Federal Public Defender Michael L. Burke Justin F. Marceau

s/ Justin F. Marceau Counsel for Petitioner

Certificate of Service I hereby certify that on April1, 2008, 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: Katia Mehu Assistant Attorney General Attorney General's Office s/ Mary Creed Mary Creed Capital Habeas Unit

Page 2 Case 2:04-cv-00260-EHC-BPV Document 52 Filed 04/01/2008 Page 2 of 18

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

Jon M. Sands Federal Public Defender Michael L. Burke (Arizona Bar No. 013173) Justin F. Marceau (California Bar No. 243479) Attorneys for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Richard Farrall, Jr., Petitioner, vs. Dora B. Schriro and the Arizona Attorney General, Respondents.

No. CV 04-00260-PHX-EHC Memorandum in Support of Motion for Evidentiary Hearing

Petitioner, Richard Farrall, Jr., respectfully requests an evidentiary hearing as to the constitutional issues addressed in this pleading. I. Procedural History. Proceeding pro per, Petitioner raised the substantive claims now at issue in all available state post-conviction proceedings. The state courts, including the Arizona Supreme Court, denied Petitioner's pro per petition for post-conviction relief. On February 4, 2004, Petitioner filed with this Court a pro per petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. (Dkt. 1). Subsequently, this Court adopted a Report and Recommendation issued by Magistrate Velasco, and denied the petition for habeas corpus relief as untimely. (Dkt. 20). On appeal, the Ninth Circuit held that the petition was timely filed and remanded to this Court for a review on the merits. On remand, this Court ordered that counsel be appointed to assist Petitioner with the litigation of his federal habeas petition. (Dkt. 43). Shortly thereafter, a notice of appearance was filed by our office. (Dkt. 45). After approximately three months, during which time counsel conducted preliminary investigations and Page 1

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 3 of 18

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

reviewed the relevant records, a status conference was held. (Dkt. 48). During the status conference, counsel for Petitioner informed the Court that preliminary investigation had revealed several witnesses with specific exculpatory evidence suggesting Petitioner's innocence as to most of the charges at issue.1 On the basis of this exculpatory evidence, counsel urged this Court to permit Petitioner to adjudicate, once and for all, the merits of his constitutional claims through a brief evidentiary hearing. This Court expressed a willingness to afford Petitioner a hearing on these issues, but requested that counsel memorialize this request through a formal written motion. (Dkt. 48). Counsel hereby formally requests a hearing at which time evidence relevant to the question of voluntariness may be presented. II. Standard for Granting an Evidentiary Hearing. The post-AEDPA procedures for determining whether a federal evidentiary hearing is required are set forth in Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005). The court clarified that following the enactment of the AEDPA, the evidentiary hearing inquiry requires two distinct but related inquires: (1) whether the petitioner is at fault for the state court's failure to develop the factual basis of the claims at issue; and (2) whether one of the factors announced in Townsend v. Sain, 372 U.S. 293 (1963), is satisfied. Id. Assuming that both inquiries are resolved in the petitioner's favor ­ the "failure" is not exclusively attributable to the petitioner and one of the Townsend factors is satisfied ­ an "evidentiary hearing on a habeas corpus petition is required." 2 Id. In this case, Petitioner has diligently pursued his claims in

Petitioner has always acknowledged that he may have criminal responsibility for two discrete acts: (1) providing his daughters with a sexually inappropriate video; and (2) demonstrating a sexual act for his teenage daughter without any masturbatory conduct. Petitioner does not allege constitutional injury with regards to charges relating to these two incidents. Stated another way, the mandatory nature of evidentiary hearings under Townsend continues to reflect the governing law in most cases. Insyxiengmay, 403 F.3d at 670 ("Where a petitioner raises a colorable claim to relief, and where there has not been a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing."). Page 2
2

1

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 4 of 18

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

state court without the benefit of counsel, a hearing, or even transcripts, and he has stated a colorable claim of constitutional harm. Accordingly, Petitioner is entitled to a hearing. A. Section 2254(e)(2) Does Not Bar an Evidentiary Hearing.

If the state court record does not provide a basis for conclusively assessing the merits of the constitutional claims at issue, and if the absence of this information in the state record is not exclusively the fault of the Petitioner, then AEDPA's limitation on hearings, § 2254(e)(2), does not apply. Williams v. Taylor, 529 U.S. 420, 435 (2000) ( holding that absent a "lack of diligence, or greater fault" directly attributably to the Petitioner, § 2254(e)(2) does not apply). As a practical matter, a petitioner is considered diligent for purposes of § 2254(e)(2) if he requests an evidentiary hearing in state court or if he adequately proffers the factual bases for his claims in state court. Id. (noting generally that any "reasonable attempt" to present the facts in support of a claim will be considered diligence for purposes of (e)(2)). Id. In Williams, the Court acknowledged that a petitioner's request for an evidentiary hearing, without more, constitutes reasonable diligence for purposes of (e)(2). Id. at 437 (holding that in the "usual case" seeking an evidentiary hearing in state court is adequate to demonstrate diligence). In this case, Petitioner, proceeding pro per, made multiple requests for court records, transcripts, and an evidentiary hearing. See, e.g., (Sup. Ct. Dkt. No. 86) (including a formal request for an

evidentiary hearing in order to prove the constitutional claims at issue). This request alone is dispositive as to the question of diligence and, therefore Townsend v. Sain governs the determination of whether Petitioner is entitled to an evidentiary hearing in this case.3
3

In Insyxiengmay, the Ninth Circuit emphasizes that the AEDPA does not displace the whole of habeas law; instead, previous case law continues to govern those issues not addressed by the AEDPA. 403 F.3d at 670. Notably, § 2254 only addresses the availability of an evidentiary hearing when the Petitioner was at fault Page 3

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 5 of 18

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

In addition to requesting an evidentiary hearing, Petitioner set forth the factual bases for his claims in his state court pleadings. (Sup. Ct. Dkt. No. 86). The fact that Petitioner provided a factual narrative regarding his constitutional injuries provides a second basis for recognizing that he was diligent for purposes of § 2254(e)(2). Indeed, the Ninth Circuit has held that so long as a petitioner "adequately proffer[s]" the factual basis of his claim to the state court, the sort of fault or lack of diligence needed to trigger § 2254(e)(2) does not exist. Earp v. Ornoski, 431 F.3d 1158, 1169 (2005). Although there is no bright line test to determine whether a bare proffer is sufficiently specific or detailed, as a pro per petitioner, there is little doubt that a mere summary proffer of the factual basis, without more, would satisfy the diligence required under § 2254(e)(2). Cf. Davis v. Silva, 511 F.3d 1005 (9th Cir. 2008) (holding that pro per petitioners are not held to the same standards for purposes of exhausting claims through state proceedings). In Earp, the court was willing to look beyond the four corners of the petitioner's post-conviction pleadings and reviewed attached declarations as a basis for determining that an adequate proffer had been made. Earp, 431 F.3d at 1169 (relying on four declarations that were before the state supreme court as a providing a "factual foundation"). Notably, in this case, Petitioner's state post-conviction pleadings contained a factual narrative regarding the bases for relief and twelve separate exhibits, including three sworn declarations. Sup. Crt. Dkt. No. 81; Sup. Crt. Dkt. No. 86; AZ Supreme Ct. Dkt. No. 1 and 3. In light of the factual narratives contained in the state court pleadings, the motions requesting court records, the express request for an evidentiary hearing, and Petitioner's pro per status, there is no question that Petitioner has demonstrated the threshold showing of diligence required under § 2254(e)(2).

­ i.e, not diligent under Williams. Accordingly, the pre-AEDPA Townsend standard continues to govern this case. Page 4

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 6 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

B.

The Allegations Satisfy the Colorable Claim Standard.

Where, as here, the restrictions announced in § 2254(e)(2) do not apply, the pre-AEDPA standard governs and a petitioner is entitled to a federal hearing so long as he states a colorable claim. That is to say, Petitioner is entitled to a federal hearing if his allegations of involuntariness and ineffective assistance of counsel, if true, would constitute a constitutional violation. Insyxiengmay, 403 F.3d at 670 (defining "colorable claim"); Earp, 431 F.3d at 1167 ("[w]here the petitioner establishes a colorable claim for relief and has never been afforded a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing"). In sum, because Petitioner proffered a claim of constitutional harm in his pro per state post-conviction pleadings, an evidentiary hearing is required so long as the facts alleged in support of the claims, if true, would entitle Petitioner to relief. Id. Based on the facts discussed below, and the related constitutional claims of involuntariness and ineffective assistance of counsel raised in this court and in state court, Petitioner is entitled to an evidentiary hearing.4 III. Facts Relating to the Colorable Claims. Based on counsel's preliminary investigation, there is a significant amount of evidence suggesting that Petitioner is innocent of the crimes at issue. In particular, counsel has located at least five witnesses with direct knowledge of information suggesting that the victims in this case fabricated the allegations that serve as the factual bases for the charges against Petitioner. The witnesses include: (1) Auzerae Patty, the daughter of Petitioner's ex-girlfriend who was a friend of the victims; (2) Frank West, Jr., the victims' brother; 3) Richard Farrall, Sr., Petitioner's father; (4)
4

It is significant that the deference prescribed in AEDPA's most commonly recited sub-section, § 2254(d)(1), does not apply in this case. The failure of the state courts to provide a hearing when presented with a colorable claim constitutes an "unreasonable determination of facts" for purposes of § 2254(d)(2). Taylor v. Maddox, 366 F.3d 992 (2004) When the limitations on relief prescribed in (d)(2) are satisfied, the alternate limitations in (d)(1) do not apply. See Frantz v. Hazey, 513 F.3d 1002 (9th Cir. 2008) (recognizing that by satisfying one of the limitations announced in § 2254(d) a petitioner is entitled to de novo review). Page 5

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 7 of 18

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

John Van Camp, a family acquaintance; and (5) Gary Secore, a family acquaintance. The statements of these witnesses are highly relevant to the determination of whether Petitioner's plea was entered into voluntarily and whether he received ineffective assistance of counsel during the sentencing phase of his trial.5 A. Auzerae Patty (Victim's Quasi-Sibling and Friend).

Auzerae Patty is the daughter of Petitioner's former girlfriend. At the time of Petitioner's arrest, Auzerae had lived in a house together with Petitioner, her mother, and Durina Farrall for approximately two years. Auzerae attended the same school as Durina and describes their relationship at the time as friendly, even sisterly. Auzerae has general information regarding Petitioner's relationship with Durina as well as specific information regarding the veracity of Durina's allegations. While living with Petitioner and his daughter Durina for roughly two years, Auzerae had a unique opportunity to observe Petitioner interact with Durina. Likewise, as a friend and confidant of Durina's, Auzerae was privy to many of Durina's secrets about boys, her relationships, and questions about sexuality. Auzerae has provided counsel with a detailed description of Petitioner's relationship with Durina and has spoken generally about Durina's concerns and stressors at this point in her life. Based on her intimate relationship with Durina, Auzerae has confidently stated that she does not believe that the alleged abuses involving Durina occurred. This information could be developed in detail at a hearing. Moreover, Auzerae has specific information regarding an incident during which Durina confided in her that the allegations against Petitioner are not true. Auzerae recalls that after Petitioner was arrested, Durina called her to discuss the case. According to Auzerae, when she picked up the phone, Durina was crying hysterically and stated that, "she never meant for this to happen," referring to Mr. Farrall's arrest. Of particular significance, Durina specifically stated that "Daddy

5

See Infra Section IV. Page 6

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 8 of 18

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

never touched me." Auzerae relayed the details of this phone call to her mother, Paula Patty, who substantially confirms Auzerae's memory of the events. The information available through the testimony of Auzerae Patty materially corroborates Petitioner's allegation of constitutional injury and provides a basis for this Court to hold an evidentiary hearing. B. Frank West, Jr. (Brother).

Counsel has also spoken with the victims' biological brother, Frank West, Jr. (Frank is Petitioner's step-son). Frank has specific knowledge about the falsity of the allegations made by his sisters, as well as information explaining why the girls decided to go to the police with these fabrications. First, Frank told counsel that his mother, Sheila Farrall, has admitted to him that she told Durina and Bobbie Jo to fabricate stories of sexual abuse regarding Petitioner. Frank recalls that his mother admitted this to him in the midst of a heated argument during which she acknowledged that she wanted to get back at Petitioner for living with his girlfriend, Paula Patty, and abandoning her when she became addicted to methamphetamine. In Frank's view, there is little question that his mother pressured Durina and Bobbie Jo into fabricating stories of abuse in order to exact revenge on Petitioner who, relative to Sheila Farrall, was remarkably successful and stable. Frank is also able to provide relevant information about his sisters' general propensity for truthfulness, and their specific admissions of dishonesty with regards to the allegations at issue. Frank has advised counsel for Petitioner that both of his sisters, Durina and Bobbie Jo, have admitted on several occasions that the allegations of abuse are lies. In Frank's view as a sibling of the girls, there is no question that the allegations of abuse are lacking any factual merit. Frank is confident that none of this would have happened absent his mother's wish to exact revenge on Petitioner for his

Page 7 Case 2:04-cv-00260-EHC-BPV Document 52 Filed 04/01/2008 Page 9 of 18

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

infidelity and growing unwillingness to support her financially.6 Obviously, this information is highly relevant to the claims set forth in Petitioner's habeas corpus petition. C. Richard Farrall, Sr. (Grandfather).

Petitioner's father, Richard Farrall Sr., is also aware of material facts relating to the constitutionality of Petitioner's conviction and sentence. In particular, Richard Farrall, Sr. described for counsel a phone call that he received from his granddaughter Bobbie Jo shortly after Petitioner's arrest. During her tearful phone conversation,

Bobbi Jo apparently said, "daddy didn't do this, I am sorry Grandpa." Richard Sr. recalls being speechless after hearing this confession, and he told counsel that Bobbie Jo never called him again. This admission alone would have substantially

undermined any effort by the prosecution to prove to a jury beyond a reasonable doubt that Petitioner was guilty of the alleged offenses; it is, therefore, highly relevant to the constitutional questions at issue. D. John Van Camp (Friend of Petitioner).

John Van Camp is a friend of Petitioner who allowed Petitioner and his wife to live with him for a short time after they were married. Mr. Van Camp is very familiar with Petitioner, his wife, and both of the alleged victims in this case. In

addition to general information about Petitioner's relationship with his daughters, and commentary on the credibility of the various parties involved, Mr. Van Camp has one direct memory that is relevant to the constitutional issues presented in this case. Mr. Van Camp told counsel for Petitioner that Bobbie Jo approached him prior to Petitioner's plea hearing and told Mr. Van Camp that she wanted to go to court and "set things straight." Mr. Van Camp remembers Bobbie Jo expressing extreme

Frank is willing to testify that Durina and Bobbie Jo both expressed to him a desire to recant and tell the truth; however, Frank says that the women were (and may continue to be) afraid of being criminally charged for wrongfully accusing Petitioner. In particular, the women have fears that their own custody rights over their children would be jeopardized if they admitted to fabricating the stories of abuse . Page 8

6

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 10 of 18

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

remorse over her father's incarceration, and he notes that she told him directly that she was never touched in an inappropriate manner by Petitioner. Mr. Van Camp

explained that Bobbie Jo ultimately changed her mind and refused to recant out of a fear that she would be charged and possibly sentenced to jail time for the false accusations. Mr. Van Camp's knowledge of Petitioner's relationship with Durina and Bobbi Jo and his conversation with Bobbi Jo regarding the veracity of her allegations provide significant corroboration to Petitioner's allegations of constitutional injury. E. Gary Secore (Family Friend).

Mr. Secore is a longtime friend of both Petitioner and the victims in this case. To this day, all three persons remain in close contact with Mr. Secore, relying on him for friendship, advice, and/or financial assistance. Of particular relevance to these proceedings, subsequent to Petitioner's incarceration, Mr. Secore allowed Bobbie Jo to reside with him and his family during a period of unemployment and hardship for Bobbie Jo. Mr. Secore has substantial personal knowledge regarding Bobbi Jo's drug addictions. In addition, Mr. Secore is able to speak to the fact that Bobbie Jo fabricated allegations of sexual abuse against persons on previous occasions. More importantly, however, Mr. Secore has direct knowledge of a letter written by Bobbi Jo to Petitioner.7 While residing in his home, Bobbi Jo wrote a letter to Petitioner apologizing for having fabricated the charges at issue in this case. In the letter, Bobbi Jo asks Petitioner to forgive her for lying about the allegations of sexual abuse. IV. Analysis: The Colorable Claims. On the basis of these and other facts before this Court, Petitioner submits that there are several colorable claims of constitutional defect warranting an evidentiary hearing. Insyxiengmay, 403 F.3d at 670 (holding that the existence of a colorable claim mandates that a petitioner be afforded an evidentiary hearing). Each of these Counsel for Petitioner have obtained a copy of this letter and intend to introduce the letter during an evidentiary hearing before this Court. Page 9
7

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 11 of 18

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

claims independently, and certainly in the aggregate, provide a legal basis for granting Petitioner's request for an evidentiary hearing. Depending on the Court's credibility determinations and other factual findings made on the basis of the hearing, this habeas petition can be adjudicated with appropriate finality. A. Ineffective Assistance of Counsel at Plea.

Throughout his state and federal proceedings Petitioner has alleged that his plea was not the product of a knowing, voluntary, and informed decision. (Sup. Ct. Dkt. No. 86). Petitioner alleges constitutional injury on the grounds that his attorney's deficient performance prior to and during the plea colloquy "impinged [his] ability to enter a knowing and voluntary plea." Lambert v. Blodget, 393 F.3d 943, 980 (9th Cir. 2004). This constitutes a colorable claim deserving of factual development through an evidentiary hearing. The Supreme Court recognizes that the conventional two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to no contest pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985) (recognizing that a guilty plea may be challenged when the advice received by counsel with regards to the plea was not objectively reasonable). Moreover, the Court has held that deficient performance in the form of a failure by counsel to "investigate or discover potentially exculpatory evidence" can, without more, constitute prejudice. Id. (noting that prejudice exists when counsel's failure to discover exculpatory evidence may have caused counsel to reassess his recommendation as to the plea). Stated another way, a "gross mischaracterization of the likely outcome" at trial based on counsel's failure to discover material exculpatory evidence necessitates relief under the Sixth Amendment. Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). In this case, counsel urged Petitioner to plead no contest despite the existence of substantial evidence suggesting that Petitioner was, as he insisted, innocent of the crimes with which he was charged. Preliminary investigation has revealed multiple Page 10

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 12 of 18

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

witnesses with evidence corroborating Petitioner's assertion of innocence. Supra, Section III, Facts Relating to the Colorable Claims.

See

The existence of this evidence, and more that will likely be developed through discovery and/or a hearing, raises significant doubt as to whether competent counsel would have urged Petitioner to accept the plea in question. Iaea, 88 F.2d at 865 (relying heavily on evidence in the record suggesting the petitioner was "very reluctant" to plead guilty to support the conclusion that a hearing regarding the voluntariness of the plea was required). In sum, because Petitioner has made allegations that, if true, would satisfy both prongs of Strickland, an evidentiary hearing is required in order to test the veracity of the allegations. The existence of significant exculpatory evidence that was not discovered by counsel prior to the plea colloquy is illustrative of representation that was inconsistent with the norms of the profession, and therefore, constitutionally deficient. Hill, 474 U.S. at 59. Moreover, Petitioner has sufficiently alleged

prejudice so as to warrant a hearing by asserting that, but for counsel's failures, he would have "insisted on going to trial." Id.; see also United States v. Howard, 381 F.3d 873, 882-83 (9th Cir. 2004) (holding that a hearing is required so long as the petitioner alleges that but for counsel's errors "he would either have gone to trial or received a better plea bargain"). Regardless of whether Petitioner ultimately prevails, he is entitled to an evidentiary hearing during which he can produce evidence in support of this colorable claim. Howard, 381 F.3d at 883 (reversing district court's denial of evidentiary hearing despite the fact that the State argued that the evidence against the defendant was "overwhelming" because petitioner alleged he "would not have entered the plea"). B. Coercion by Counsel.

Petitioner's post-conviction pleadings also warrant an evidentiary hearing on the related claim that the plea was the involuntary product of coercion by counsel. Iaea, 800 F.2d at 866 (recognizing coercion as a distinct basis for constitutional Page 11

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 13 of 18

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

relief). Petitioner has consistently alleged that his plea was involuntary on the grounds that his attorney, Mark Kennedy, improperly "threatened, coerced, and intimidated" him into accepting the plea. (Sup. Ct. Dkt. No. 86). See Brady v.

United States, 397 U.S. 742 (1970) (holding that the waiver of trial rights must be demonstrably knowing, voluntary, and intelligent). Petitioner has alleged that his trial counsel was so coercive and intimidating as to cause him to "lose control" and to lack all understanding of the proceedings. (Sup. Ct. Dkt. No. 86). Petitioner alleges that he would not have accepted the plea were it not for counsel's strong-arm and overwhelming tactics. Id. (describing his interaction with counsel as being characterized by "ferocity and verbal coercion"). Petitioner is an emotionally fragile individual, a fact that could be developed in more detail through a hearing, and he alleges that counsel's fist-slamming, yelling, and belittling were so overwhelming as to deprive him of the opportunity to knowingly and intelligently evaluate the proffered plea. Id. This Court may question the veracity of these allegations; however, the claim may not be dismissed in the absence of an evidentiary hearing. Machibroda v. U.S., 368 U.S. 487, 496 (1962) (holding that an evidentiary hearing was required because "specific and detailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to be incredible"). In light of Petitioner's unique emotional fragility and related psychological issues that may be developed through discovery and/or a hearing, Petitioner alleges that counsel's combatively forceful approach was sufficiently coercive so as to deprive his plea of a voluntary character. These issues of credibility and fact must be resolved through a hearing. C. Ineffective Assistance of Counsel at Sentencing.

Petitioner has also raised a colorable claim that his Sixth Amendment right to counsel was violated during the sentencing phase of his trial. (Sup. Ct. Dkt 86 at 8). Petitioner has alleged that his attorney, Mark Kennedy, provided constitutionally ineffective representation at the sentencing phase of his trial by failing to present any Page 12

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 14 of 18

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

mitigating evidence, and, in fact, by affirmatively undermining Petitioner's efforts to secure a lesser sentence. Because these allegations, taken as true, would entitle Petitioner to relief, evidentiary development is required on this issue. Strickland , 466 U.S. at 687. The Ninth Circuit has recognized that if counsel presents the sentencer with no mitigation evidence, and a defendant is sentenced to the maximum available sentence, it is appropriate to presume prejudice. See Correll v. Ryan, 465 F.3d 1006, 1018 (9th Cir. 2006) (suggesting prejudice may be assumed when death sentence is returned after counsel failed to present any mitigation). In this case, counsel for Petitioner knew that his client was facing a wide sentencing range, 13-27 years. Nonetheless, when asked by the court whether he had prepared any case in mitigation for his client, counsel responded that he had not. (Tr. Nov. 23, 1999 at 8). Adding to the likelihood that his client would receive a sentence near the maximum available under the plea, counsel attempted to explain his lack of mitigation by telling the sentencer that his efforts were "unproductive." Id. at 9. In other words, counsel presented no mitigation on behalf of Petitioner and affirmatively suggested that Petitioner was to blame for the absence of any such evidence. In light of counsel's egregious conduct in failing to prepare for the sentencing hearing and in undermining his client during the hearing, it is not surprising that Petitioner received a 25-year sentence. The fact of counsel's deficient performance, paired with fact that Petitioner received nearly the maximum sentence allowed under the plea, strongly suggest that he received ineffective assistance of counsel. Petitioner has stated a colorable claim as to this issue and is entitled to an evidentiary hearing. D. The Judicial Involvement in the Plea Colloquy was Coercive.

The Ninth Circuit has recognized that coercion on the part of the court or the prosecutor renders an otherwise valid plea agreement involuntary. Iaea, 800 F.2d at 867 (recognizing the role that judges play in safeguarding the integrity of the plea process). Petitioner has consistently alleged that he was coerced into accepting the Page 13

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 15 of 18

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

plea, (Sup. Ct. Dkt. No. 81), and one of the vehicles of coercion in this case was the trial judge presiding over the plea colloquy. (Sup. Ct. Dkt. No. 86 at 7). As a general matter, courts of appeals have been reluctant to tolerate any "judicial pressure" during the plea colloquy. See United States v. Diaz, 138 F.3d 1359, 1362 (11th Cir. 1998). The mandate that judges maintain strict neutrality and not comment on possible sentences is motivated by a desire to avoid involuntary pleas "coerced by judicial intervention." Id. at 1363 (interpreting Fed. R. Crim. P. 11(e)). When the judge comments on the likely sentencing range and encourages the defendant to accept the "good deal," there is a fear that the defendant will be coerced into pleading out of a concern that he will receive a "more severe sentence" if he proceeds to trial. Id.; see also United States v. Kraus, 137 F.3d 447 (7th Cir. 1998) (applying Rule 11(e) and noting that pleas are irreparably "tainted" by participation by the judge because the defendant is likely to comply with the judge's recommendation so as to avoid offending the court). Transcripts from the instant case leave little doubt that the judge's interventionist approach to the State's proffered plea were inappropriate and coercive. See., e.g., TR. Aug. 26, 1999 at 3 (stressing to Petitioner that the State has a "very strong case"); Id. at 2-3 (telling Petitioner he could face "over 200 years in prison" if he did not accept the plea). In fact, the judge in this case went so far as to tell

Petitioner that in his "neutral point of view . . . the jury is not going to believe you." Id. at 6. This sort of judicial intervention is so coercive as to constitute a deprivation of due process, and the evidence that will be developed through an evidentiary hearing demonstrates that the error was not harmless. E. Denial of Counsel at Hearing to Withdraw Plea.

Petitioner also alleges a colorable claim of denial of counsel during the withdrawal of plea hearing. (Sup. Ct. Dkt. No. 86 at 7). Several circuits have recognized that the Sixth Amendment right to effective assistance of counsel extends to a plea withdrawal hearing. See, e.g., United States Page 14

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 16 of 18

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

v. Davis, 239 F.3d 283, 286 (2nd Cir. 2001). Accordingly, trial counsel's refusal to assist Petitioner in preparing for or participating in the withdrawal of plea hearing constitutes a violation of the Sixth Amendment. United States v. Cronic, 466 U.S. 648, 659 (1984) (holding that the complete denial of counsel or effective representation at a critical stage litigation justifies a presumption of prejudice). Because trial counsel failed to provide Petitioner with any assistance during the withdrawal hearing, and in fact affirmatively hindered Petitioner's efforts to explain his desire to withdraw his plea, (TR. Aug. 24, 1999 at 8), Petitioner was completely deprived of counsel at this critical proceeding. See, e.g., Cuyler v. Sullivan, 446 U.S. 335 (1980) (recognizing an entitlement to relief when there is an actual conflict of interest between counsel and the client). Accordingly, Petitioner is entitled to a new withdrawal of plea hearing and/or an evidentiary hearing as to the voluntariness issues relevant to this claim. See United States v. Segarra-Rivera, 473 F.3d 381, 387 (2007) (recognizing the award of a new plea withdrawal hearing as an appropriate remedy). F. The Plea is Void on its Face.

Finally, Petitioner has consistently alleged that the plea agreement he is currently bound by is facially void on the grounds that: (1) the plea was changed after petitioner had signed the agreement; and (2) the plea was expired as of the date it was signed. See, e.g., (Az. Supreme Ct. Dkt. No. 1 at 4). First, Petitioner maintains that because the plea agreements were expired as of the date of signing (the agreement was signed on Aug. 26, 1999, and by its own terms the agreement expired on July 2, 1999), the sentences imposed are of no legal force. In addition, Petitioner argues that by changing the plea after he signed the agreement, the prosecution and the court denied him the benefit of his bargain. The plea agreements signed by Petitioner could not have subjected Petitioner to 25 years in prison, and the corresponding colloquy was inadequate to cure the dramatic changes at issue. Petitioner respectfully requests that he be afforded a sentence Page 15

Case 2:04-cv-00260-EHC-BPV

Document 52

Filed 04/01/2008

Page 17 of 18

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

consistent with the maximum sentences available under the plea agreement that he signed, or in the alternative, an evidentiary hearing. V. Conclusion. For the foregoing reasons, Petitioner requests that this Court assign this matter to a Magistrate Judge for a brief evidentiary hearing regarding the claims discussed above. In particular, Petitioner has alleged colorable claims warranting additional discovery and a hearing as to issues of whether his plea was knowing and voluntary, and whether his sentencing hearing was unconstitutional. Respectfully submitted this 1st day of April, 2008. Jon M. Sands Federal Public Defender Michael L. Burke Justin F. Marceau

s/ Justin F. Marceau Counsel for Petitioner

Page 16 Case 2:04-cv-00260-EHC-BPV Document 52 Filed 04/01/2008 Page 18 of 18