Free Reply to Response to Motion - District Court of Arizona - Arizona

Stephen E. Eberhardt Illinois State Bar No: 6181963 16710 S. Oak Park Avenue Tinley Park, IL 60477 (708) 633-9100; FAX (708) 633-9102

Carmen L. Fischer Arizona State Bar No: 009975 45 W. Jefferson Suite 403 Phoenix, AZ 85003 (602) 252-1282; FAX (602) 252-6043

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) No: CV 04-39-PHX-MHM ) Petitioner, ) REPLY TO RESPONDENT'S ) RESPONSE TO PETITIONER'S v. ) CONSOLIDATED MOTION FOR ) DISCOVERY AND EVIDENTIARY DORA SCHRIRO, et al. ) HEARING AND TO EXPAND THE ) RECORD UNDER HABEAS RULE Respondents. ) 7 WITH INCORPORATED ) MEMORANDUM OF LAW. ) _________________________________) DEATH PENALTY CASE DARREL ESTON LEE,

REPLY TO RESPONDENT'S RESPONSE TO PETITIONER'S CONSOLIDATED MOTION FOR DISCOVERY AND EVIDENTIARY HEARING AND TO EXPAND THE RECORD UNDER HABEAS RULE 7 WITH INCORPORATED MEMORANDUM OF LAW. Generally, rather than responding to any of the law cited by Petitioner, Respondent argues

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based on overly broad and sweeping language that is inapplicable to the specifics of the case at bar.

I. Legal Background (A) Discovery. With regard to discovery, the Respondent notes when a petitioner is entitled to same under Bracey, but then goes on to argue that "whether a state court's decision was unreasonable for purposes of 28 U.S.C. 2254(d) must be determined `in light of the record the [state] court had before it.' Holland v. Jackson, ___ U.S. ___, 124 S.Ct. 2736, 2737-38, (2004)(per curiam)." (Response at page 3). The argument suffers two maladies. First, the grant of discovery is a different consideration than the determination of the "reasonableness" of a state court decision. Second, the use of a per curiam decision to try to overrule or distinguish a prior Supreme Court decision is extremely questionable as a per curiam decision is made without benefit of briefing or oral argument where the state of the law is not really in question. At bottom, the Respondent's own quote from Bracey is appropriate to consider. When the "specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is [] entitled to relief" (Response at page 3), discovery should be granted.

(B) Evidentiary Hearing The respondent argues that the grant of evidentiary hearings based on the Townsend factors are "dubious" based on a number of factors (Response at pages 7-8) and then goes on to posit that 2

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even more importantly, the "continued viability of Townsend appears contrary to Congress' intent in enacting the AEDPA [.]" (Response at page 8). Yet, nowhere in the Respondent's cited case of Woodford v. Garceau is there even a reference to Townsend. This erroneous argument is based merely on the quotation snipped from the opinion by the Attorney General. In contrast then, the Respondent does recognize that the Ninth Circuit has held that Townsend "has [] continued post-AEDPA viability [.]" (Response at page 7). As the Respondent's cited case Insyxiengmay stated, "In sum, for a post-AEDPA petitioner to receive an evidentiary hearing in federal court, he must first show that he has not failed to develop the factual basis of the claims in the state courts: if he has failed, he must meet one of the two narrow exceptions stated in the statute." Insyxiengmay at 670. Moreover, "Under AEDPA, `a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable, to the prisoner or the prisoner's counsel.'" Id. at 670. Here, as noted in the "Amended Petition" and throughout Petitioner's pleadings, there can be no fault on the part of Petitioner to raise issues in his post-conviction pleadings as he was represented by conflicted counsel. Mr. Matthew G. Newman was the brother of one of the chief investigators on the case, Major Newman of the LaPaz County Sheriff's Office and husband of the County Clerk, Sheri Newman who worked daily with the trial judge. Finally, the Respondent's claim that all the cases relied on by Petitioner are pre-AEDPA cases (Response at page 9) is simply erroneous. Under the continued viability of Townsend, and as noted in Petitioner's initial motion, "[i]f there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not `failed to develop' the facts under § 2254(e)(2)'s opening clause, and he will be excused from 3

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showing compliance with the balance of the subsection's requirements." Michael Williams v. Taylor, 529 U.S. 420, 437; see also Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003).

(C) Expansion of the Record Claim I The Respondent initially fails to acknowledge that the Petitioner raised the claim that he should have been granted a change of venue after jurors viewed him in shackles and jurors mingled with witnesses and others but then recognizes that Mr. Newman withdrew the claim. Further, Respondent fails to acknowledge that Post-Conviction counsel, the brother of the chief investigator, ignored Petitioner's requests to investigate the claim.1 Habeas counsel is now entitled to do what conflicted counsel refused to do.

Claim II The Respondent argues that Exhibits G, H, I, J and I could have been presented during postconviction proceedings "through the exercise of due diligence". (Response at page 14). As noted in all of Petitioner's previous filings, there was no "due diligence" on the part of post-conviction counsel Matthew Newman due to his conflict of interest and allegiances to others besides Petitioner. Thus, habeas counsel must be afforded the opportunity to do what conflicted counsel refused
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The best example of Mr. Newman's gross negligence and disregard of any interest in this case was his failure to even review the records of the interview of Petitioner's father that made it clear that Petitioner had made statements to the Prosecutor Suskin that Investigator Terry Stewart was aware of that made it clear Petitioner had admitted during plea negotiations that Petitioner had been at the scene of the incident when Mr. Suskin told Petitioner's father, "I mean, he sat right here and as much as told me that [] he was there [] Karen did most of the stuff." But, Mr. Newman did not use this evidence to claim trial counsel's ineffectiveness in presenting the false alibi. 4

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to do.

Claim 4 Petitioner stands on the arguments made in the previously filed motion.

Claim 5(B) Petitioner stands on the arguments made in the previously filed motion.

Claim 6 Petitioner stands on the arguments made in the previously filed motion.

Claim 9 Again, the Respondent wants to paint the law with overly broad brush strokes in arguing that this "Court's assessment of the state court's disposition of Petitioner's ineffective assistance of counsel claims is based on the record the trial court had before it. See Holland [.]" (Response at page 17). But, then the Respondent recognizes (Response at page 18) that Petitioner can present new evidence if he is not "at fault" in failing to present same to the state court. Holland at 2738. Simply put, the bottom line is that a federal evidentiary hearing is appropriate if the "absence of a factual basis" is the result of a "curtailed proceeding at the state level." Baja at 1078-1079. And, that is the case here based on the flawed, conflicted representation of Mr. Newman.

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Conclusion. For these reasons, and the reasons noted in the Petitioner's Consolidated Motion, the motion should be granted. Respectfully submitted this 1st day of December, 2005.

By /s/ Carmen Fischer One of the Attorneys for Petitioner

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