Free Response in Opposition to Motion - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) DAWN M. NORTHUP ASSISTANT ATTORNEY GENERAL CAPITAL LITIGATION SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 [email protected] (STATE BAR NUMBER 013352) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
DARREL ESTON LEE, Petitioner, -vsDORA B. SCHRIRO, et al., Respondents. CIV 04-39-PHX-MHM 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 [Death Penalty Case]

Respondents respectfully request this Court to deny Petitioner's Motion for

18 Discovery, Evidentiary Hearing, and to Expand the Record. Petitioner is not 19 entitled to his requested discovery, because he has failed to establish good cause. 20 Additionally, Petitioner is not entitled to an evidentiary hearing on any of his 21 claims, because either: (1) the underlying habeas claim or legal argument is 22 procedurally defaulted, or is not otherwise subject to federal habeas relief; or (2) 23 Petitioner failed to develop the new information during his state court proceedings, 24 and has subsequently failed to meet the requirements of 28 U.S.C. § 2254(e)(2). 25 Furthermore, Petitioner is not entitled to expand the record under Rule 7 26 because he has not demonstrated that he acted diligently in developing the factual 27 basis of the underlying claim in state court and the relevancy of the evidence to the 28
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1 underlying claim, and he has not satisfied the narrow exceptions set forth in 2 §2254(e)(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 I. LEGAL BACKGROUND. A. DISCOVERY. Federal habeas corpus was not designed to be a fishing expedition for habeas petitioners to "explore their case in search of its existence." Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996) and Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Thus, a habeas petitioner, unlike a traditional civil litigant, has no presumptive entitlement to discovery. Bracey v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003). Instead, discovery is only available to federal habeas petitioners "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a), Rules Governing § 2254 Cases (emphasis added). In determining whether a request for discovery should be granted, a habeas court must first determine whether the underlying claim is subject to federal habeas relief, or is otherwise properly before the court. See, e.g., 28 U.S.C. § 2254(a)
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RESPECTFULLY SUBMITTED this 7th day of November, 2005.
TERRY GODDARD ATTORNEY GENERAL s/DAWN M. NORTHUP ASSISTANT ATTORNEY GENERAL CAPITAL LITIGATION SECTION ATTORNEYS FOR RESPONDENTS

MEMORANDUM OF POINTS AND AUTHORITIES

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1 (habeas relief limited to violations of the United States Constitution, or the laws or 2 treaties of the United States); 28 U.S.C. § 2254(b)(1) (exhaustion requirement). If 3 the underlying claim is cognizable and properly before the court, the court then 4 decides whether "good cause" supports the discovery request, by: (1) identifying 5 the "essential elements" of the underlying claim; and (2) then determining whether 6 "`specific allegations before the court show reason to believe that the petitioner 7 may, if the facts are fully developed, be able to demonstrate that he is . . . entitled 8 to relief.'" Bracey, 520 U.S. at 908­09 (quoting Harris v. Nelson, 394 U.S. 286, 9 300 (1969)). However, in conducting this analysis, a federal habeas court must 10 keep in mind that whether a state court's decision was unreasonable for purposes 11 of 28 U.S.C. 2254(d) must be determined "in light of the record the [state] court 12 had before it." Holland v. Jackson, ___ U.S. ___, 124 S. Ct. 2736, 2737­38 (2004) 13 (per curiam). 14 15 B. EVIDENTIARY HEARING. Rule 8, Rules Governing § 2254 Cases, provides that a federal habeas court

16 must determine whether an evidentiary hearing is required. However, the court's 17 discretion is significantly limited by the Antiterrorism and Effective Death Penalty 18 Act of 1996 ("the AEDPA"), 28 U.S.C. § 2254. The AEDPA provides: 19 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an 20 evidentiary hearing on the claim unless the applicant shows that-- 21 (A) the claim relies on-- 22 (i) a new rule of constitutional law, made retroactive to 23 cases on collateral review by the Supreme Court, that was previously unavailable; or 24 (ii) a factual predicate that could not have been 25 previously discovered through the exercise of due diligence; and 26 (B) the facts underlying the claim would be sufficient to 27 establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found 28
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the applicant guilty of the underlying offense.

2 28 U.S.C. § 2254(e)(2) (emphasis added). Thus, if the failure to develop a claim's 3 factual basis is due to a "lack of diligence, or some greater fault, attributable to the 4 prisoner or the prisoner's counsel," a court is prohibited from conducting an 5 evidentiary hearing unless the prisoner meets the conditions of § 2254(e)(2). 6 Holland, 124 S.Ct. at 2738; Williams v. Taylor, 529 U.S. 362, 429, 432 (2000). 7 This rule serves AEDPA's goal of furthering comity because "federal courts sitting 8 in habeas are not an alternative forum for trying facts and issues which a prisoner 9 made insufficient effort to pursue in state proceedings." Williams, 529 U.S. at 435. 10 Pursuant to § 2254(e)(2), when the factual basis for a particular claim 11 properly before the habeas court has not been fully developed in state court, the 12 first question for the court in evaluating whether to grant an evidentiary hearing on 13 the claim is whether the petitioner was diligent in attempting to develop the claim's 14 factual basis. Williams, 529 U.S. at 432­33 (approving Baja v. Ducharme, 187 15 F.3d 1075, 1078 (9th Cir. 1999) and other federal circuit court opinions). The 16 Supreme Court has set an objective standard for analyzing this initial "diligence" 17 threshold--whether a prisoner "made a reasonable attempt, in light of the 18 information available at the time, to investigate and pursue claims in state court." 19 Williams, 529 U.S. at 435. For example, when there is information in the record 20 that would alert a reasonable attorney to the existence and importance of certain 21 evidence, the attorney "fails" to develop the factual record if he does not make 22 reasonable efforts to sufficiently investigate and present the evidence to the state 23 court. See, e.g., Williams, 529 U.S. at 438­40 (counsel did not act diligently 24 because he was on notice of potentially material evidence and conducted only a 25 cursory investigation). See also McNair v. Campbell, 416 F.3d 1291, 1298­99 26 27 28
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(11th Cir. 2005) (prisoner failed to diligently develop the basis for his claim that his attorney was ineffective for failing to offer mitigation evidence regarding his drug

1 addiction, despite the fact that the state court denied both his motion for the 2 appointment of an expert witness, and his motion for visitation by an expert; the 3 prisoner could have testified himself, or had family members testify, concerning 4 his drug abuse, and he could have presented evidence of the effects of drug 5 addiction through treatises or other literature); Alley v. Bell, 307 F.3d 380, 390­91 6 (6th Cir. 2002) (lack of diligence because prisoner knew of and raised claims of 7 judicial bias and jury irregularities in state court, but failed to investigate all the 8 factual grounds for such claims). 9 The Supreme Court has made it clear that this initial "diligence" hurdle 10 requires that the prisoner (and his collateral review counsel) comply with all state 11 procedural requirements necessary to obtain an evidentiary hearing in state court: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Williams, 529 U.S. at 437 (emphasis added). Arizona law requires that a petitioner file his petition for post-conviction relief with supporting "[a]ffidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition." Rule 32.5, Ariz. R. Crim. P. (emphasis added). See also State v. Borbon, 146 Ariz. 392, 399, 706 P.2d
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Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. `Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.' O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met.

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1 718, 725 (1985) (in affirming the trial court's denial of a Rule 32 hearing, the 2 appellate court noted that defendant's factual allegations were not supported by 3 affidavits); State v. Bowers, 192 Ariz. 419, 422, 426, 966 P.2d 1023, 1026, 1030 4 (App. 1998) (defendant alleged a "colorable claim" of ineffective assistance of 5 counsel warranting a post-conviction relief evidentiary hearing by submitting 6 affidavits from himself and trial counsel regarding counsel's erroneous legal 7 advice); State v. Gunter, 132 Ariz. 64, 71, 643 P.2d 1034, 1041 (App. 1982) 8 (defendant established a "colorable claim" that his guilty plea was involuntary by 9 submitting medical records and affidavit). Thus, because of this burden placed 10 upon Arizona defendants to support their factual allegations, the mere request for 11 an evidentiary hearing during post-conviction relief proceedings is not sufficient to 12 establish diligence for Arizona defendants. See, e.g., Baja, 187 F.3d at 1079 13 ("State law not only permitted but required Baja to come forward with affidavits or 14 other evidence, to the extent that his claim relied on evidence outside the trial 15 record. Clearly, Baja had the opportunity in state proceedings to come forward 16 with evidence to support his allegation that counsel was ineffective at trial, but 17 failed to do so. He therefore failed to develop the factual basis of his claim in state 18 court proceedings within the meaning of 28 U.S.C. § 2254(e)."). See also Koste v. 19 Dormire, 345 F.3d 974, 985­86 (8th Cir. 2003) (lack of diligence despite hearing 20 request because petitioner made no effort to develop the record or assert any facts 21 to support claim that his counsel was ineffective), and Dowthitt v. Johnson, 230 22 F.3d 733, 758 (5th Cir. 2000) (petitioner who requested hearing found not diligent 23 because he failed to present affidavits of family members that were easily 24 obtainable without court order and with minimal expense). 25 In accordance with these principles, this Court has ordered: 26 Any motion for evidentiary development [including requests for 27 discovery and for an evidentiary hearing] shall: 28 (1) separately identify which enumerated claim(s) and subDocument 82 6 Filed 11/07/2005 Page 6 of 21

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claim(s) Petitioner contends need further factual development; (2) with respect to each claim or sub-claim identified in #1, (i) identify with specificity the facts sought to be developed; (ii) identify the specific exhibit(s) or evidence Petitioner contends demonstrate or support the existence of each fact sought to be developed; and (iii) explain why such fact(s), exhibit(s) and evidence are relevant with respect to each claim or sub-claim; and (3) with respect to each claim or sub-claim identified in #1, explain in complete detail: (1) why such claim or sub-claim sought to be developed was not developed in state court; and (2) why the failure to develop the claim in state court was not the result of lack of diligence, in accordance with the Supreme Court's decision in Williams v. Taylor, 529 U.S. 420 (2000). (Order of Appointment and General Procedures, March 29, 2004, at 4, emphasis

Petitioner attempts to resuscitate the pre-AEDPA standard for granting an evidentiary hearing that was set forth in Townsend v. Sain, 372 U.S. 293 (1963), overruled in part, Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 8­9 (1992). In

Townsend, the Supreme Court held that a federal court must grant an evidentiary hearing to a habeas petitioner if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a

20 substantial allegation of newly-discovered evidence; (5) the material facts were not 21 adequately developed at the state-court hearing; or (6) for any reason it appears 22 that the state trier-of-fact did not afford the habeas applicant a full and fair fact 23 hearing. Townsend, 372 U.S. at 313. If Townsend has any continued post-AEDPA 24 viability, this Circuit has held it is only in cases in which a prisoner acted diligently 25 in attempting to develop the factual basis of a habeas claim in state court. 26 Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (citing Baja, 187 F.3d 27 at 1078). However, this Circuit's precedent notwithstanding, the application of 28 Townsend to post-AEDPA petitioners appears dubious, given that: (1) Townsend
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1 was not grounded on constitutional law, but rather on the 1963 Supreme Court's 2 perception of Congress' intent in passing the habeas statute in effect at that time;1 3 (2) three years after Townsend was decided, Congress amended 28 U.S.C. 4 §2254(d) to incorporate the Townsend factors, but subsequently removed them in 5 enacting the AEDPA; and (3) the Supreme Court has never held that the Townsend 6 factors are applicable to a post-AEDPA petitioner. Additionally, contrary to 7 Townsend, nothing in the AEDPA suggests that a habeas court must conduct an 8 evidentiary hearing in certain circumstances. See, e.g., Downs v. Hoyt, 232 F.3d 9 1031, 1041 (9th Cir. 2000) ("Moreover, even assuming Downs's claim could clear 10 the hurdle posed by § 2254(e)(2), the fact that a hearing would be permitted does 11 not mean that it is required. The district court retains discretion whether to hold 12 one."). Furthermore, the continued viability of Townsend appears contrary to 13 Congress' intent in enacting the AEDPA in order "to reduce delays in the 14 execution of state and federal criminal sentences, particularly in capital cases, and 15 to further the principles of comity, finality, and federalism." Woodford v. 16 Garceau, 538 U.S. 202, 206 (2003) (citations omitted). 17 Petitioner asserts that he is entitled to further factual development simply 18 because this is a capital case. (Motion at 5.) However, even before the AEDPA, 19 the Ninth Circuit upheld summary dispositions (no evidentiary hearings) in capital 20 cases from Arizona. See, e.g., Gretzler v. Stewart, 112 F.3d 992, 998 &1009 (9th 21 Cir. 1997); Ceja v. Stewart, 97 F.3d 1246, 1248­49 (9th Cir. 1996). 22 Similarly, Petitioner's suggestion that this Court hold an evidentiary hearing or 23 grant discovery on procedurally defaulted claims should be rejected. Petitioner's 24 failure to fairly present a claim in state court will be evident from the record. 25 Whether a claim has been properly exhausted is necessarily based on the existing 26
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See Townsend, 372 U.S. at 311.
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1 state court record. The cases relied on by Petitioner at pages 11-12 of his motion 2 are pre-AEDPA cases, and thus do not address the limitations on conducting 3 evidentiary hearings set out in § 2254(e)(2). 4 5 C. EXPANSION OF THE RECORD. Even before enactment of the AEDPA, Keeney v. Tamayo-Reyes, 504 U.S.

6 1, 9 (1992), required Petitioners to show cause and prejudice to present evidence in 7 federal habeas that they had not presented to the state court: "The state court is the 8 most appropriate forum for resolution of factual issues in the first instance, and 9 creating incentives for the deferral of fact-finding to later federal-court proceedings 10 can only degrade the accuracy and efficiency of judicial proceedings." 11 After enactment of the AEDPA, the standard became even more strict: 12 13 14 15 16 17 18 In this and related contexts we have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it. See Yarborough v. Gentry, 540 U.S.1, ___ (2003) (per curiam) (slip op., at 5) (denying relief where state court's application of federal law was "supported by the record"); Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (reasonableness of state court's factual finding assessed "in light of the record before the court"); cf. Bell v. Cone, 535 U.S. 685, 697, n.4 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).

19 Holland, 124 S. Ct. at 2738 (emphasis added). Holland reversed the Sixth 20 Circuit's opinion, which had relied on evidence the petitioner had not properly 21 placed before the state court. 124 S. Ct. at 2737. The federal courts have recognized that the AEDPA modifies Habeas Rule 7 22 23 to the extent that a petitioner must now show both diligence in developing the 24 factual basis of the underlying claim in state court and relevancy of the evidence to 25 the underlying claim--absent the diligence showing, the petitioner must satisfy the 26 narrow requirements of § 2254(e)(2) before the record can be expanded. See
th 27 Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9 Cir. 2005) (stating that, 28 under Holland, a habeas petitioner "must comply with §2254(e)(2) in order to

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1 expand the record under Rule 7"). Accordingly, a petitioner is not entitled to 2 expansion of the record unless he exercised diligence in his efforts to develop the 3 factual basis of his claims in state court proceedings. Cooper-Smith, 397 F.3d at 4 1241-42. See also Cargle v. Mullin, 317 F.3d 1196, 1209 (10th Cir. 2003); Boyko 5 v. Parke, 259 F.3d 781, 790 (7th Cir. 2001); Cardwell v. Greene, 152 F.3d 331, 6 337­38 (4th Cir. 1998), overruled on other grounds, Bell v. Jarvis, 236 F.3d 149 7 (4th Cir. 2000); Williams v. Runnels, 312 F. Supp.2d 1266, 1276 n.10 (C.D. Calif. 8 2004). In Holland, the Supreme Court cited Cargle for the proposition that new 9 evidence should not be admitted in a federal habeas proceeding unless the 10 proponent establishes that he was not at fault in failing to present the evidence in 11 state court or if at fault, the conditions set out in § 2254(e)(2) have been satisfied. 12 Holland, 124 S. Ct. at 2738. 13 The Ninth Circuit has repeatedly prohibited the use in federal habeas review 14 of evidence that petitioners never presented in state court. See Turner v. Calderon, 15 281 F.3d 851, 894 (9th Cir. 2002) (prohibiting the use in federal court of letters 16 favorable to the prisoner that were not presented to the state court); Wildman v. 17 Johnson, 261 F.3d 832, 839­40 (9th Cir. 2001) (upholding district court's refusal to 18 consider letter that had not been presented to the state courts); Correll v. Stewart, 19 137 F.3d 1404, 1412 (9th Cir. 1998) (upholding dismissal of ineffective assistance 20 claim for failure to develop the facts in the state court); Brown v. Easter, 68 F.3d 21 1209, 1211­12 (9th Cir. 1995) (precluding expansion of the record to include 22 evidence not presented to the Alaska Supreme Court). 23 In other words, a petitioner generally cannot present affidavits, declarations, 24 and other evidence he did not present to the state courts. See Hogue v. Johnson, 25 131 F.3d 466, 505 (5th Cir. 1997) (precluding federal review of a jury bias issue 26 when affidavits relating thereto had not been presented to the state court, despite 27 availability of information); Livingston v. Johnson, 107 F.3d 297, 306, fn. 7 (5th 28
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1 Cir. 1997) (refusing to consider an expert's declaration that was not presented to 2 the state court). The unfairness of presenting new evidence to the federal courts 3 that was never presented to the state courts is that the new evidence places the 4 claim in a significantly different evidentiary posture in federal court, violating the 5 exhaustion requirement. See Aiken v. Spalding, 837 F.2d 410, as amended 841 6 F.2d 881, 883 (9th Cir. 1988) (per curiam); Nevius v. Sumner, 852 F.2d 463, 470 7 (9th Cir. 1988). 8 II. 9 10 ARGUMENT Claim 1. Change of Venue In Petitioner's Amended Habeas Petition he claims that pretrial publicity

11 violated his right to a fair and impartial jury under the Sixth Amendment to the 12 United States Constitution. (Amended Petition, at 39-42.) In his Consolidated 13 Motion, however, Petitioner attempts to expand that claim by claiming that post14 conviction counsel provided ineffective assistance of counsel by failing to develop 15 the claim that jurors saw Petitioner in handcuffs, and that jurors had improper 16 contact with the victim's family. As argued in Respondents' Answer, the only 17 claim Petitioner properly exhausted relates to his request for a change of venue 18 based on pretrial publicity. Petitioner's request to conduct discovery and expand 19 the record to develop new claims that would support a change of venue argument 20 should be rejected. Petitioner's allegations that post-conviction counsel performed 21 inadequately is not a cognizable, federal constitutional claim, and in any event, 22 Petitioner did not diligently develop his change of venue claim in state court, and 23 thus he is not entitled to discovery, expansion of the record, or an evidentiary 24 hearing. See Holland, 124 S. Ct. at 2738, Williams, 529 U.S. at 429, 432; Cooper25 Smith, 397 F.3d at 1241-42. 26 Additionally, the exhibits Petitioner seeks to include in an expanded record 27 (Exhibits D, E, F, & G) contain irrelevant, conclusory allegations that merely 28
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1 buttress Petitioner's procedurally defaulted claim, and have nothing to do with the 2 pretrial publicity claim he presented in state court. For example, Barbara Lee's 3 declaration (Exhibit D) is a statement about her family history, and provides no 4 foundational basis for her claim of juror misconduct. Although Respondents have 5 not received Exhibits E, F, & G, assuming that Petitioner's declaration maintains 6 that he saw the victim's son and friends of the victim's son speaking to jurors in the 7 parking lot (Amended Petition, at 43), it provides no foundational basis for the 8 conclusion that the jurors overheard or engaged in conversations about Petitioner's 9 case during trial. Petitioner and his co-defendant chose their victim at random. 10 Thus, it is notable that he recalls that the victim's sons and the sons' friends, whom 11 Petitioner had never met, were talking to jurors. 12 Petitioner is not entitled to unilaterally supplement the record with facts that 13 were not presented in state court. See Wildman v. Johnson, 261 F.3d 832, 839­40 14 (9th Cir. 2001) (upholding district court's refusal to consider letter that had not been 15 presented to the state courts); Brown v. Easter, 68 F.3d 1209, 1211­12 (9th Cir. 16 1995) (precluding expansion of record to include evidence not presented to the 17 Alaska Supreme Court). By presenting new evidence and new facts to this Court, 18 Petitioner has significantly altered the evidentiary posture of the claims presented 19 in state court, thereby circumventing the exhaustion requirement. See Luna v. 20 Cambra, 306 F.3d 954, 965 (9th Cir. 2002), as amended, 311 F.3d 928; see also 21 Holland, 124 S.Ct. at 27, 37­38. 22 Finally, Petitioner had an opportunity to develop a claim in state court 23 relating to the possibility that jurors saw him in handcuffs. (Minute Entries filed 24 5/10/00 and 03/27/01.) Petitioner voluntarily withdrew the claim after being given 25 26 27 28
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an opportunity to investigate its factual basis. (Minute Entry filed, 05/13/03.) Petitioner had a duty to append the declarations he now seeks to include in the record to his petition for post-conviction relief. Rule 32.5, Ariz. R. Crim. P.;

1 see, e.g., Borbon, 146 Ariz. at 399, 706 P.2d at 725; Bowers, 192 Ariz. at 426, 966 2 P.2d at 1030; Gunter, 132 Ariz. at 71, 643 P.2d at 1041. Petitioner failed to do so, 3 and he fails to argue, much less demonstrate, why he could not have done so had 4 he chosen to act diligently in state court. Petitioner thus failed to develop this 5 proffered new information before the state courts. Baja, 187 F.3d at 1079; see also 6 Koste, 345 F.3d at 985­86; Dowthit, 230 F.3d at 758. 7 Because he failed to develop the new information in the state courts, 8 Petitioner is not entitled to an evidentiary hearing unless he first meets the 9 conditions set out in § 2254(e)(2). He fails to meet any of those conditions, 10 because he fails to argue, much less prove: (1) the underlying claim relies on a 11 new, retroactive rule of constitutional law, or that the new information from the 12 proposed witnesses could not have been discovered through the exercise of 13 diligence during the state proceedings; and (2) that the facts underlying the claim 14 would be sufficient to establish by clear and convincing evidence that, but for 15 constitutional error, no reasonable fact-finder would have found Petitioner guilty of 16 the charges on which he was convicted. 28 U.S.C. § 2254(e)(2). Therefore, 17 §2254(e)(2) prohibits a hearing on this matter. 18 Claim 2. Competence to stand trial and be sentenced. 19 Petitioner concedes in his Habeas Petition that this claim is procedurally 20 defaulted. (Habeas Petition, at 47.) Petitioner tries to circumvent his procedural 21 default by alleging ineffective assistance of trial counsel in not requesting a pretrial 22 competency evaluation. Petitioner filed a petition for post-conviction relief in state 23 court, alleging five instances of ineffective assistance of counsel. The claim 24 presented here, however, was not one of them. The trial court held an evidentiary 25 hearing on three ineffective assistance of counsel claims (presentation of an alibi 26 defense, failing to investigate and present mitigation evidence, and failure to obtain 27 meaningful psychiatric evaluation). (Minute Entry filed 05/13/03.) The state court 28
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1 record demonstrates Petitioner had an opportunity to develop an ineffective 2 assistance of counsel claim relating to his competence, but he failed to do so. 3 Petitioner's lack of diligence in developing the factual basis of the underlying 4 substantive claim or the ineffective assistance of counsel claim relating to 5 competence precludes further evidentiary development in this Court. 6 U.S.C. §2254(e)(2); Holland, 124 S. Ct. at 2738. 7 See 28

Moreover, as outlined in Respondents' Answer to Petition for Writ of Habeas

8 Corpus, Petitioner's characterization of the record below is inaccurate. Trial 9 counsel requested, and received, appointment of a psychiatrist or psychologist 10 prior to trial. Following the evaluation, defense counsel advised the court that 11 Petitioner would not be presenting expert medical testimony during the guilt phase. 12 (Answer, at 51.) Furthermore, evidence of Petitioner's use of anti-depressants, 13 such as Elavil, was introduced during his post-conviction proceeding, but it was 14 never intimated that Petitioner was not competent to understand the proceedings or 15 assist counsel in preparing a defense, nor did trial counsel ever indicate as much. 16 (Answer, at 51-52.) 17 Petitioner's attempt to significantly alter the claim presented below-- 18 ineffective assistance of counsel in adequately developing mitigation--to include 19 ineffective assistance of counsel in failing to allege Petitioner was incompetent to 20 stand trial and be sentenced should be rejected. Exhibits G, H, I, J, & K attached to 21 Petitioner's amended petition should be stricken from the petition, and not included 22 in an expanded record. These exhibits are wholly unrelated to the underlying claim 23 raised in the habeas petition, and are merely a disguised attempt to expand the 24 record to include additional mitigation, most of which is cumulative, and could 25 have been discovered and presented to the state court during the post-conviction 26 proceedings through the exercise of due diligence. 27 28
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Claim 4. Evidentiary Development. Petitioner's request for evidentiary development of this claim is inadequate.

3 Petitioner merely states, without identifying the particular claim he is referring to, 4 that he is entitled to evidentiary development "to do what conflicted post5 conviction counsel should have done, that is, complete the tasks requested in Claim 6 I." (Consolidated Motion, at 15-16.) To the extent Petitioner is seeking to develop 7 an alleged ineffective assistance of post-conviction counsel claim, that request 8 should be denied. Petitioner does not have a federal constitutional right to 9 effective assistance of counsel on collateral review. Title 28 U.S.C. §2254(i) 10 expressly states that "the ineffectiveness or incompetence of counsel during 11 Federal or State collateral post-conviction proceedings shall not be a ground for 12 relief in a proceeding arising under section 2254." (Emphasis added.) Moreover, in 13 addition to AEDPA's explicit statutory bar of such claims, the United States 14 Supreme Court has unequivocally and repeatedly held that, "[t]here is no 15 constitutional right to an attorney in state post-conviction proceedings." Coleman v. 16 Thompson, 501 U.S. 722, 752 (1991). "Consequently, a petitioner cannot claim 17 constitutionally ineffective assistance of counsel in such proceedings." Coleman, 18 501 U.S. at 752 (emphasis added).2 See also Ellis v. Armenakis, 222 F.3d 627, 633 19 (9th Cir. 2000.) Petitioner should not be allowed to expand the record or seek 20 additional discovery of a claim that is not grounded in a federal constitutional 21 violation. See, e.g., 28 U.S.C. §§ 2254(a) (habeas relief limited to violations of 22 the United States Constitution, or the laws or treaties of the United States) & (b)(1) 23 (exhaustion requirement). 24 25 26 Nor can an allegation of ineffective assistance of post-conviction counsel serve as 27 cause to excuse procedural defaults. Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998); Bonin v. Calderon, 77 F.3d 1155, 1160 (9th Cir. 1996). 28
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Claim 5(B). Use of Petitioner's Prior Conviction for Robbery as an Aggravating Circumstance. Petitioner requests this Court to expand the record to include documents

4 relating to his 1987 robbery conviction (Exhibit M attached to Habeas Petition.) 5 This request should be denied. First, the issue presented in this Court, whether the 6 state courts properly used the fact of Petitioner's prior robbery conviction to 7 support the A.R.S. § 13-703(F)(2) aggravating circumstance, is a question of law 8 that does not lend itself to further evidentiary development. As argued in 9 Respondents' Answer, Petitioner's prior robbery conviction, which by statutory 10 definition involved the use or threat of violence, sufficiently narrowed Petitioner's 11 eligibility for the death penalty. This Court need not expand the record or allow 12 additional evidentiary development of this claim to determine whether the state 13 courts' reliance on Petitioner's prior robbery conviction as an aggravating 14 circumstance sufficiently narrows the class of persons eligible for the death 15 penalty, as required by United States Supreme Court precedent. 16 Claim 6. Victim Impact Evidence. 17 In Petitioner's habeas petition, he alleges that the trial court improperly 18 considered victim impact evidence when it sentenced him. Petitioner concedes this 19 claim is procedurally defaulted. Nonetheless, Petitioner seeks to depose the trial 20 court judge to determine whether he considered the prosecutor's recommendation 21 for a life sentence or the victim's wife's letter, requesting that death be imposed. 22 Petitioner correctly restates Respondents' argument set out in its Answer to the 23 habeas petition. The prosecutor's sentencing recommendation is not relevant to 24 Claim 6, and in any event, it is presumed that the trial court knew and followed the 25 law. Nothing in the state court record, including the Arizona Supreme Court's 26 independent review, suggests that the trial court considered the victim's sentencing 27 recommendation. The state court record does, however, belie Petitioner's 28
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1 suggestion that the trial judge failed to state "any reasons" for imposing a death 2 sentence. The trial court entered a lengthy special verdict, which is based solely on 3 the evidence presented at trial and sentencing. (R.T. 3/8/93, at 23-33.) 4 Petitioner's bare allegation of impartiality, which is a procedurally defaulted 5 claim and irrelevant to the underlying substantive claim relating to victim impact 6 evidence precludes further evidentiary development in this Court. 7 8 9 Claim 9. Ineffective Assistance of Counsel at Trial and Sentencing.

Petitioner's attempt to expand the record with documents not presented in

10 conjunction with his state court post-conviction proceedings should be rejected. 11 This Court's assessment of the state court's disposition of Petitioner's ineffective 12 assistance of counsel claims is based on the record the trial court had before it. See 13 Holland, 124 S. Ct. at 2737 (reviewing court cannot look beyond the record before 14 the state court in determining whether a state court decision is contrary to clearly 15 established federal law); Baja, 187 F.3d at 1079 (state prisoner is limited to the 16 factual assertions made in state court in support of properly exhausted claims, and 17 he many not alter or expand those factual assertions in federal court). Petitioner 18 has not alleged, let alone demonstrated, how he was prevented from conducting the 19 discovery he now requests, or from presenting the additional exhibits he seeks to 20 include in the record, when he presented his ineffective assistance of counsel 21 claims in state court. 22 Trial counsel's strategy in presenting an alibi defense was the centerpiece of 23 Petitioner's state court hearing. Post-conviction counsel outlined the bases for the 24 ineffectiveness claims at one of the first hearings held during the post-conviction 25 26 27 28
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proceedings.

(R.T. 4/17/00, at 3-5.)

The mitigation specialist appointed in

Petitioner's post-conviction proceeding came "highly recommended" and had a clear understanding of the scope of her task of gathering information relating to

1 Petitioner's social and family history. (R.T. 9/28/00, at 4-8.) As it turned out, 2 however, despite a lengthy post-conviction proceeding, and allegations that trial 3 counsel did little in way of investigating Petitioner's background, the record did 4 not bear that out. This Court need look no further than the pleadings, minute 5 entries, transcripts, and exhibits from the state court post-conviction hearing to 6 conclude that trial counsel investigated Petitioner's background and proffered what 7 he believed to be the most compelling mitigation at sentencing. Both trial and 8 post-conviction counsel attempted to develop mitigation evidence relating to 9 Petitioner's alleged brain damage. The experts' findings, however, did not support 10 that theory. Undoubtedly, another mitigation specialist or mental health expert 11 may find additional information, enabling Petitioner to buttress his claims, but that 12 is not a permissible basis on which to grant discovery, an evidentiary hearing, or an 13 expansion of the record. See Holland, 124 S. Ct. at 2738 (Petitioner must 14 demonstrate he was not at fault in failing to present new evidence in state court, or 15 if at fault, he must satisfy conditions prescribed by § 2254(e)(2)). 16 Petitioner's request to expand the record to include Exhibit H, a mitigation 17 report, which contains mostly cumulative evidence relating to Petitioner's family 18 history, should be denied. The trial court gave Petitioner an opportunity to develop 19 a claim that trial counsel failed to adequately develop mitigation at sentencing. 20 After an evidentiary hearing, at which Petitioner's mother and a mitigation 21 specialist testified, the trial court concluded that trial counsel did in fact investigate 22 mitigation and presented evidence relating to Petitioner's family background and 23 drug use. (Minute Entry filed, 05/13/03.) Petitioner has not alleged, let alone 24 demonstrated, that he could not have previously discovered the new information 25 26 27 28
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presented in Exhibits D, E, F, G, H, I, J, & K, and presented it in his state court post-conviction hearing through the exercise of due diligence as required under §2254(e)(2).

1

Petitioner's submission of a report from a new mitigation specialist does not

2 entitle him to expansion of the record. See, e.g., Provenzano v. Singletary, 148 3 F.3d 1327, 1333 (11th Cir. 1998) ("In this case, Provenzano has brought forth a 4 report from another mental state expert indicating that additional mitigating 5 circumstance evidence could have been put before the jury. . . . it is `a common 6 practice' to file affidavits from witnesses who say they could have provided 7 additional mitigating circumstance evidence, but `the existence of such affidavits, 8 artfully drafted though they be, usually proves little of significance.'"). See also 9 Turner v. Calderon, 281 F.3d 851, 875­76 (9th Cir. 2001) ("Mr. Ellery cannot be 10 deemed ineffective because, with the benefit of hindsight, we now determine that 11 other trial strategies or expert witnesses may have been a better choice."). 12 Similarly, Petitioner's request to expand the record to include Exhibits CC, 13 DD, EE, FF, & HH, should be denied. These documents were readily available to 14 defense counsel prior to trial as part of pre-trial discovery. Petitioner does not 15 suggest that the state prevented trial counsel from discovering this information or 16 that it was unavailable to trial counsel. The record demonstrates that trial counsel 17 vigorously cross-examined Karen Thompson about the plea she entered, and about 18 her prior criminal history. (Photostated Instruments, at 37, 39, 44; R.T. 11/17/92, 19 at 10, 13, 74.) Thus, Petitioner is merely alleging here that current counsel would 20 have cross examined her differently. The exhibits Petitioner seeks to include in an 21 expanded record were either available to defense counsel prior to trial, or are of the 22 type Petitioner would have been able to obtain through the exercise of diligence. 23 Petitioner had an opportunity to develop that claim in his state court post24 conviction proceeding, and this Court should review the trial court's disposition of 25 26 27 28
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this claim based on the record the state court had before it. Holland, 124 S.Ct. at 2738; Cooper-Smith, 397 F.3d at 1241­42; see also Turner, 281 F.3d at 894 (prohibiting the use in federal court of letters favorable to the prisoner that were

1 not presented to the state court); Wildman v. Johnson, 261 F.3d 832, 839­40 (9th 2 Cir. 2001) (upholding district court's refusal to consider letter that had not been 3 presented to the state courts); Correll v. Stewart, 137 F.3d 1404, 1412 (9th Cir. 4 1998) (upholding dismissal of ineffective assistance claim for failure to develop 5 the facts in the state court); Brown v. Easter, 68 F.3d 1209, 1211­12 (9th Cir. 1995) 6 (precluding expansion of the record to include evidence not presented to the Alaska 7 Supreme Court). 8 III. 9 CONCLUSION. Based on the foregoing authorities and arguments, Respondents respectfully

10 request that the Consolidated Motion for Discovery and Evidentiary Hearing and to 11 Expand the Record under Habeas Rule 7 be denied. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 7th day of November, 2005.
TERRY GODDARD ATTORNEY GENERAL

s/DAWN M. NORTHUP Assistant Attorney General ATTORNEYS FOR RESPONDENTS

1 2 I hereby certify that on November 7, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 4 STEPHEN E. EBERHARDT 16710 S. Oak Park Avenue 5 Tinley Park, Illinois. 60477 6 CARMEN L. FISCHER 45 W. Jefferson, Suite 403 7 Phoenix, Arizona 85003 8 Attorney for Petitioner 9 10 11 12 CRM93-0463 122528 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/ DAWN M. NORTHUP