Free Motion for Hearing or Conference - 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

DARREL ESTON LEE, Petitioner, v. DORA SCHRIRO, et al. Respondents.

) No: CV 04-39-PHX-MHM ) ) DEATH PENALTY CASE ) ) PETITIONER'S CONSOLIDATED ) MOTION FOR DISCOVERY AND ) EVIDENTIARY HEARING AND TO ) EXPAND THE RECORD UNDER ) HABEAS RULE 7 WITH ) INCORPORATED MEMORANDUM ) OF LAW

PETITIONER'S CONSOLIDATED MOTION FOR DISCOVERY AND EVIDENTIARY HEARING AND TO EXPAND THE RECORD UNDER HABEAS RULE 7 WITH INCORPORATED MEMORANDUM OF LAW.

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Table of Contents I. Discovery and evidentiary hearings in habeas corpus proceedings. . . . . . . . . . . . . . . . . . . . . . 1 A. Discovery under the Rules Governing Habeas Proceedings. . . . . . . . . . . . . . . . . . . . . 2 B. Discovery under the Federal Rules of Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Discovery is necessary now. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 D. Evidentiary hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 E. Petitioner is entitled to discovery and/or a hearing on claims that may be barred. . . 11

II. The claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Claim I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Claim II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Claim IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 D. Claim VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 E. Claim IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. The Court Has the Authority to Expand the Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. The Court has the authority to expand the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. Expansion of the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C. Claim I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 D. Claim II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 E. Claim V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 F. Claim IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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IV. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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

Petitioner, DARREL ESTON LEE, pursuant to 28 U.S.C. §2254(e) and Rules 6 and 8 of the Rules Governing §2254 Cases in the United States District Courts, requests discovery and an evidentiary hearing to develop facts to support his first, second, fourth, sixth and ninth claims for relief.

I. Discovery and evidentiary hearings in habeas corpus proceedings. Despite the limitations imposed by Congress in its 1996 amendments to 28 U.S.C. §2254, this Court still has the authority to permit discovery and to conduct an evidentiary hearing in this case. The United States Constitution enshrines the privilege, through the writ of habeas corpus, to seek the aid of our Courts whenever a person is held in custody in violation of the Constitution. U.S. C ONST., Art. I, §9. Congress expressly provides that those

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wrongfully held in state custody may resort to the writ of habeas corpus to secure their release. 28 U.S.C. §2254. At its core, the writ of habeas corpus is the primary--and in many cases the only-- recourse to redress miscarriages of justice.

A. Discovery under the Rules Governing Habeas Proceedings. Under Rule 6(a) of the Rules Governing Habeas Proceedings in the District Courts ("Habeas Rule"), "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure [.]" Further, Habeas Rule 6(b) provides that a "party requesting discovery provide reasons for the request, the request must also include any proposed interrogatories and requests for admission, and must specify any requested documents." "Good cause" is shown where the petitioner (1) makes credible allegations of a constitutional violation and (2) the requested discovery will enable the petitioner to investigate and prove his claims. See Bracy v. Gramley, 520 U.S. 899, 904, 908-09 (1997); see also McDaniel v. United States District Court for the District of Nevada (Jones), 127 F.3d 886, 888 (9th Cir. 1997) (citing Harris v. Nelson, 394 U.S. 286, 299 (1969)) ("[W]here 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, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."). The discretion to grant discovery oftentimes rises to the level of a duty. Harris, 394

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U.S. at 300; Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991); Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991) (court should exercise its discretion and grant discovery where "good cause" exists for allowing discovery). The Supreme Court has also suggested that district judges consider ordering discovery before deciding whether an evidentiary hearing is appropriate whenever the claim on which discovery is sought is not so "palpably incredible' [or] `patently frivolous or false' as to warrant summary dismissal." Blackledge v. Allison, 431 U.S. 63, 76, 82-83 (1977) (quoting Herman v. Claudy, 350 U.S. 116, 119 (1956)). In fact, Rule 6 warrants discovery "when[ever] it would help the court make a reliable determination with respect to the prisoner's claim." Herrera v. Collins, 506 U.S. 390, 444 (1993) (Blackmun, J., dissenting on other grounds). A district court may authorize discovery "at any time in the proceedings, when the court considers that it is necessary to do so in order that a fair and meaningful evidentiary hearing may be held [] before or in conjunction with the hearing [.]" Harris, 394 U.S. at 300 1

Harris v. Nelson disclaimed the notion that "district judges are without power to enter necessary orders in the absence of rules," while noting that "the rulemaking machinery should be invoked to formulate rules of practice with respect to federal habeas corpus [] proceedings." 394 U.S. at 300 n.7. Habeas Rule 6 was thus subsequently adopted. In stating that Habeas Rule 6(a) is "consistent with Harris v. Nelson," however, the Advisory Committee Note indicates that Habeas Rule 6 was not designed to supplant the district courts' inherent powers under Harris and §1651, but rather to provide practical, enforceable guidelines for discovery in habeas. See Gilday v. Callahan, 99 F.R.D. 308, 309 (D. Mass. 1983) ("[T]he Advisory Committee Note of Rule 6 renders [the] Rule consistent with the strict and well reasoned interpretation supplied by Harris."). The All Writs Act thus remains viable to the extent it permits potentially broader discovery procedures than those of Habeas Rule 6. 3

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(setting forth standards for discovery under the All Writs Act, 28 U.S.C. §1651).2 Indeed, the United States Supreme Court has emphasized that district courts should authorize discovery procedures "reasonably fashioned to elicit facts necessary to help the court `dispose of the matter as law and justice require.'" Id. at 290 (quoting 28 U.S.C. §2243).

B. Discovery under the Federal Rules of Civil Procedure. The scope of discovery under the Federal Rules of Civil Procedure is quite broad. See e.g. Hickman v. Taylor, 329 U.S. 495 (1947). Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to [] the subject matter involved in the action, [] The information [sought] need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Consistent with its sweeping language, federal courts have uniformly construed Rule 26(b)(1) very broadly. As the Ninth Circuit explained in Shoen v. Shoen, "[t]his broad right of discovery is based on the general principle that litigants have a right to every man's evidence, and that wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth." 5 F.3d 1289, 1292 (9th Cir. 1993) (internal citations and quotations omitted); see also Kerr v. United States District Court for Northern District of California, 511 F.2d 192, 195 (9th Cir. 1975).

Under the All Writs Act, 28 U.S.C. §1651(a), "The Supreme Court and all courts established by Act of Congress may issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 4

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C. Discovery is necessary now. Because this is a death penalty case, discovery is necessary to insure that extra measure of process which is demanded in capital cases. Indeed, as recognized by the United States Court of Appeals for the Fifth Circuit, "[I]f death is involved, the petitioner should be presented every opportunity possible [] to present facts relevant to his constitutional claims." Wilson v. Butler, 825 F.2d 879, 883 (5th Cir. 1987). In fact, the capital petitioner who fails to request full discovery in his initial habeas petition may lose his life because he failed to investigate his case earlier. Tucker v. Kemp, 819 F.2d 978, 981 (11th Cir. 1987) (on eve of execution, finding abuse of the writ and denying relief, where capital petitioner failed to seek discovery during first habeas proceedings). Allowing discovery now will go a long way toward the resolution of this case. "Because habeas corpus discovery is designed to aid courts in determining the validity of the petitioner's claims, it often can add--and may in fact be indispensable --to the reliability of habeas corpus proceedings in capital cases. For this reason, liberal use of discovery is appropriate in such cases." R ANDY H ERTZ & JAMES S. L IEBMAN, F EDERAL H ABEAS C ORPUS P RACTICE AND P ROCEDURE 526 (4th ed. 2001). The need for liberal discovery in capital cases is especially acute. Capital cases require that the procedures employed therein ensure heightened reliability in the determination of both the defendant's guilt and/or his sentence. See Beck v. Alabama, 447 U.S. 625, 637 (1980). Where an individual's life is at stake, the Supreme Court repeatedly

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has insisted upon higher standards of reliability and fairness. See e.g. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) ("`[T]he penalty of death is qualitatively different' from any other sentence [.] We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.") (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). Indeed, Congress has articulated this federal policy through the Anti-Drug Abuse Act of 1988, which provides additional investigators, experts, and services of counsel for those seeking collateral review of a death sentence. 21 U.S.C. §848(q). In this case, Petitioner has made credible allegations of constitutional violations for which discovery is necessary in order to further investigate and prove his claims.

D. Evidentiary hearing. Petitioner is requesting an evidentiary hearing pursuant to Habeas Rule 8,3 so that he may present additional information to the Court which will further support certain allegations now pending. Petitioner will address the specific requests under the relevant claims post. The authority for the Court to conduct an evidentiary hearing follows. The Supreme Court established six circumstances under which a district court must

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Habeas Rule 8(a) provides: If the petition is not dismissed, the judge must review the answer, any transcripts and records of the state-court proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted. 6

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provide a habeas petitioner an evidentiary hearing: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state [court] 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 substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; and (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). In Tamayo-Reyes, the Supreme Court partially overruled Townsend, but only as to Townsend's fifth circumstance--that the material facts were not adequately developed in the state court hearing. Townsend's five other circumstances remain unaffected by TamayoReyes. 504 U.S. at 5. Under Tamayo-Reyes, in cases where the petitioner had a state court evidentiary hearing and negligently failed to develop the material facts in that hearing, the petitioner was entitled to a federal evidentiary hearing only "if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from the failure." 504 U.S. at 11. Tamayo-Reyes also adopted a "narrow exception" to this cause and prejudice requirement: "A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Id. at 12. 7

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Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Congress followed the course set by the Court in Tamayo-Reyes where it modified Townsend in only one respect. Congress codified Tamayo-Reyes, which eliminated the fifth circumstance of Townsend. Subsection (e) was added to §2254, which provides that a district court is not required to hold an evidentiary hearing if the petitioner has "failed to develop the factual basis of his claim in State court proceedings." Id. §2254(e)(2). The AEDPA left entirely intact the remaining circumstances of Townsend. Moreover, when President Clinton signed the AEDPA, he believed certain sections of the legislation warranted comment. Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this bill because I am confident that the Federal courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary. President's Statement on Signing Anti-terrorism and Effective Death Penalty Act of 1996, 32 W EEKLY C OMP. P RES. D OC. 719 (Apr. 24, 1996), 1996 WL 13335508 ("President's Statement"). The president specifically addressed the legislation's effect upon a petitioner's ability to prove facts to support his federal claims. Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when "the applicant has failed to develop the factual basis of a claim in State court proceedings." If this provision were read to deny litigants a meaningful opportunity to prove the facts 8

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necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which "the applicant has failed to develop the factual basis" of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court. Preserving the Federal courts' authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners' rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power "to say what the law is" and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal. Id. What was important to the president upon signing the legislation was that petitioners would have an opportunity to develop the factual support for claims unless the failure to do so "is fairly attributable to the applicant." Id. If the applicant was not at fault, and consistent with the remaining circumstances of Tamayo-Reyes, the federal courts could conduct an evidentiary hearing. In Michael Williams v. Taylor, 529 U.S. 420 (2000), the Supreme Court interpreted and applied 28 U.S.C. §2254(e)(2) as amended by the AEDPA. As a threshold matter, the Court recognized that Congress codified Tamayo-Reyes's elimination of part five of Townsend's test. As is evident from the similarity between the Court's phrasing in Keeney and the opening clause of § 9

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2254(e)(2), Congress intended to preserve at least one aspect of Keeney's holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy § 2254(e)(2)'s provisions rather than show cause and prejudice, and in eliminating a freestanding "miscarriage of justice" exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. 529 U.S. at 433. The respondent in Williams argued that the "failure to develop" language of §2254(e)(2) imposed a "no fault," "strict liability" rule; that if the facts were not developed in state court (no matter what the reason), a petitioner is precluded under the statute from developing the facts in federal court. Id. at 431. The Supreme Court disagreed with this reading of the "failure to develop" language. "[A] person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all." Id. at 432. The Court held, "[u]nder the opening clause of §2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. The Court further recognized "Congress has given prisoners who fall within § 2254(e)(2)'s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings. Williams, 10

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529 U.S. at 436. Finally, the Court stated, "[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 showing compliance with the balance of the subsection's requirements." Id. at 437; see also Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). Interference by the state in developing the facts in state court does not bar a petitioner from developing the facts in federal court. Williams, 529 U.S. at 443.

E. Petitioner is entitled to discovery and/or a hearing on claims that may be barred. Petitioner is entitled to discovery and/or a hearing on claims that may be barred, if only to evaluate whether the procedural default can be excused. See Cristin v. Brennan, 281 F.3d 404, 416-17 (3d Cir. 2002) ("[W]e are aware of no case in which either the Keeney standard or its successor, §2254(e)(2), has been employed to limit whether an evidentiary hearing was available to evaluate whether a petitioner's procedural default may be excused."); Williams, IV v. Turpin, 87 F.3d 1204, 1211 (11th Cir. 1996) ("[B]efore denying him an evidentiary hearing on the new evidence, the district court should have determined whether [Petitioner's] newly proffered evidence was sufficient to support a finding of cause and prejudice."). Otherwise, evidence of cause and prejudice or miscarriage of justice would never be discovered. See McCleskey v. Zant, 499 U.S. 467, 494 (1991) (petitioner is entitled to a hearing on cause and prejudice); see also Amrine v. Bowersox, 128 F.3d 1222, 1228-29

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(8th Cir. 1997) (petitioner is entitled to a hearing on miscarriage of justice). Once the state raises a procedural default issue, the federal court should conduct factual development on the controverted factual issues surrounding the default. The doctrines of cause and prejudice which excuses default are "federal questions" on which the federal courts have a duty to make "an independent determination." See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Further, if habeas petitioners are entitled to evidentiary hearings on issues of procedural default, then they are also entitled to conduct discovery. See Committee Comment, Habeas Rule 6. Absent this Court's findings of procedural default, the affirmative defense of procedural default does not act as a bar to the granting of discovery. Instead, it can only serve to expand the scope of discovery to include not only the underlying issue, but also as to evidence supporting any "cause" which excuses the failure to properly raise the substantive issue in state court.

II. The claims. Petitioner requests discovery and/or an evidentiary hearing to develop facts to support the following claims. A. Claim I In his first claim for relief, Petitioner alleged that he was improperly denied a change of venue. Petitioner initially filed a "Motion for Change of Venue" that was denied without

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prejudice. [R.T. October 19, 1992 at 8]. After jury selection when Petitioner renewed the motion, the Court expressed concern over the fact that so many of the sitting jurors had read the article about the case. "That's why we had that specific question on the questionnaire about people reading the gem," the Court noted. [R.T. November 10, 1992 at 142]. The Court then went on to comment about trial counsel that "I'm not sure why you didn't delve into that." [Id. at 142-143]. Trial counsel was ineffective in not "delving into" the issue. Moreover, post-conviction counsel did not fairly represent Petitioner on the claim that trial counsel was ineffective regarding the change of venue claim or the claim regarding the possibility that jurors may have seen Petitioner handcuffed due to counsel's conflicts of interest. Moreover, due to counsel's lack of concern, diligence and conflicts, he never even preliminarily raised that improper contacts with jurors took place. While prejudice should have been presumed based on the comments of Mr. Bryson Burton and Mr. Robert Schwind and the information known to the trial court, had a proper post-conviction investigation been done, it would have been clear a fair and impartial jury could not be seated in LaPaz County. For purposes of the investigation and possible evidentiary hearing, this Court should now authorize Petitioner's investigator to interview the jurors to determine to extent of the publicity and improper contacts that they were subjected to and the possible prejudice resulting therefrom. It must be determined if, when and how they saw Petitioner in handcuffs and if, when and what conversations they overheard during the trial proceedings and outside

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of the trial proceedings. Then, based on this information, it can be determined which jurors would be called to testify at an evidentiary hearing.

B. Claim II As the State noted, the Petitioner was uncooperative with trial counsel in insisting on only an alibi defense and nothing else. ("Petitioner insisted on that defense and he would not cooperate in presenting any other defense."; "Trial counsel's case log also establishes that he tried to convince Petitioner that the alibi defense was not a good idea."; "Mike Burke talked to Petitioner in jail and told him that the alibi defense was going nowhere and that `the best shot at trial is to go with a diminished capacity defense [.]"; "Trial counsel and Burke `pleaded with Petitioner to accept the State's plea offer [.]"; "Trial counsel even solicited the help of other attorneys to urge Petitioner to accept the plea and not to present an alibi defense."; "Mike Burke testified that he believed that a defense of voluntary intoxication to negate specific intent (or second degree murder) would have been Petitioner's best option, and that he and Politi told Petitioner that during one of their jail visits.")("Respondent's Answer" at 85-86). Thus, with Petitioner so absolutely uncooperative with trial counsel Mr. Politi, it defies logic why he was not tipped off to conduct some type of competency evaluation after Petitioner supposedly insisted on proceeding on a false alibi theory. Moreover, as the Respondent also notes "[s]everal exhibits relating to Petitioner's use of Elavil, his depression,

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his cognitive functioning, and his state of mind at the time of the offense were admitted as part of Petitioner's post-conviction proceeding", ("Respondent's Answer" at 51), and Mr. Politi was aware of Petitioner's use of Xanax. (Amended Petition at ¶214). It becomes incomprehensible to understand why any competent lawyer would not demand a competency evaluation of their client and a competency hearing before the Court. Petitioner seeks the appointment of the experts previously requested to do a competency evaluation of Petitioner to address competency at the time preceding trial, at trial and sentencing.

C. Claim IV In Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 107 (1987), the Supreme Court notes that "the rule that jurors are presumed to follow their instructions is a pragmatic one rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Thus, rather than being an absolute rule, the Ninth Circuit has recognized that what the Supreme Court precedent really means is that "juries generally are presumed to follow instructions." United States v. Enriquez-Estrada, 999 F.2d 1355, 1361 (9 th Cir. 1993) overruled in part on other grounds by United States v. Peterson, 140 F.3d 819, 822 (9 th Cir. 1998) (as cited by Respondent at page 61)(Emphasis added).

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Yet, here we have a jury that was prejudiced by the inflamed community atmosphere. Petitioner seeks evidentiary development to do what conflicted post-conviction counsel should have done, that is, complete the tasks requested in Claim I, supra.

D. Claim VI The Respondent argued in the "Answer" that in "the absence of any contrary evidence, a reviewing court `must assume that the trial judge properly applied the law and considered only the evidence he knew to be admissible.'". ("Respondent's Answer" at page 78). Yet, this disregards the fact that, clearly, the trial judge ignored the recommendation of the trial prosecutor that Petitioner be sentenced to life imprisonment. Even the Arizona Supreme noted that the trial judge never gave any reasons for sentencing Petitioner to death and the trial judge did not even find the aggravating circumstances beyond a reasonable doubt. State v. Lee, 185 Ariz 549, 559, 917 P.2d 692 (1996). And, the reason for not stating his reasons would be that the judge considered evidence that was inadmissible. Simply put, the sentence of death was imposed by Judge Irwin without even specifying the reasoning therefor. On the one hand there was the prosecutor asking for a life sentence and on the other there was the letter of Mrs. Anderson saying such things as she would be "willing to give him a shot, pull the electric switch, or pull th[e] trap door if he hang", and further saying that she "hope[d] this man gets a big mean lover in prison" and

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"when it is time for him to die that he has a long lingering death like maybe be placed on an ant hill in the sun and pour molasses on him [.]" It is easy to see which way the judge was unconstitutionally swayed. Petitioner seeks evidentiary development on this claim by deposing Judge Irwin.

E. Claim IX Petitioner has alleged that he was denied effective assistance of counsel in violation of the United States Constitution because his trial counsel: 1) knew that Petitioner was involved in the kidnaping of the victim and present at the murder scene, but presented an alibi defense; 2) failed to investigate a viable alternative to the concocted alibi defense based upon Petitioner's voluntary intoxication and diminished capacity and its effect upon his ability to premeditate murder; 3) failed to adequately cross-examine Karen Thompson; 4) failed to investigate and present mitigating evidence at his capital sentencing hearing; and 5) failed to obtain a meaningful psychiatric evaluation of Petitioner. Petitioner has shown "good cause" as contemplated by Habeas Rule 6 to entitle him to discovery on this claim. He has made credible allegations of a constitutional violation-his

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Sixth Amendment right to effective assistance of counsel. And, the requested discovery will enable the petitioner to investigate and prove his claims. In order to present the Court with additional factual support, Petitioner requests that the Court order discovery on this claim for relief. Petitioner will seek discovery through production of documents and depositions of, inter alia, the following: a. Deposition of Steve Suskin. Petitioner will take the testimony of the trial prosecutor, Steve Suskin, regarding his meeting with Petitioner and Petitioner's trial counsel prior to trial regarding his presence at the scene when Karen Thompson killed the victim; statements Petitioner's trial counsel made to him and others regarding Petitioner's alibi defense; his understanding of the stipulation he entered into with Petitioner's counsel regarding admission of evidence; and the trial prosecutor information regarding Petitioner's competency to stand trial and mental health prior to trial and sentencing. b. Deposition of Detective Terry Stewart. Petitioner will take the testimony of Detective Stewart, the case agent, regarding his knowledge of Petitioner's meeting with the prosecutor and his trial counsel prior to trial; information about Petitioner's mental condition prior to trial, including knowledge of the fact Petitioner had been prescribed Elavil for depression by a physician at the Maricopa County Jail; his efforts to corroborate Karen Thompson's hose story. c. Deposition of Judge Michael Burke. Petition will take the testimony of Judge Burke, his appellate counsel and supervisor of his trial counsel, regarding his knowledge of

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the meeting between Petitioner, his trial counsel and the prosecutor prior to trial; his understanding of the stipulation his office, through Stephen Politi, entered into with the state regarding admission of evidence; the capability of the La Paz County Public Defenders Office in 1991 to handle a capital murder defense; d. Deposition of Judge Irwin. Petitioner will take the testimony of Judge Irwin, the trial judge regarding his knowledge of Petitioner's pretrial admissions to the prosecutor and his trial counsel that he was present at the scene when Karen Thompson killed the victim; his understanding of the stipulation entered into by Petitioner's counsel and the trial prosecutor; his selection of the mitigation specialist who ultimately did nothing to assist Petitioner; his involvement in the appointment of Matt Newman, brother of case agent Major Newman, to represent Petition during his Petition for Post-Conviction relief. e. Deposition of Karen Thompson. Petitioner will take the testimony of his codefendant, Ms. Thompson, regarding her knowledge of the meeting between Petitioner, the trial prosecutor and Petitioner's trial attorney; her knowledge of Petitioner's competency to stand trial; her knowledge of Petitioner's use of drugs; her character for truthfulness and untruthfulness; her prior criminal history; f. Records Deposition of the Springfield Illinois Police Department. Records of Karen Thompson's aggravated battery and theft arrests which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. g. Records Deposition of the Springfield Illinois Courts. Records of Karen

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Thompson's aggravated battery arrest which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. h. Records Deposition of the Texas Department of Corrections. Records of Karen Thompson's confinement which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. i. Records Deposition of the Travis County Texas Courts. Records of Karen Thompson's unlawfully carrying a weapon arrest which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. j. Records Deposition of the San Luis Obispo California Police Department. Records of Karen Thompson's assault with a deadly weapon and felon in possession of a firearm arrest which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. k. Records Deposition of the Pima County Arizona Superior Court. Records of Karen Thompson's aggravated robbery, forgery and larceny convictions which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. l. Records Deposition of the Pinal County Arizona Superior Court. Records of Karen Thompson's check forgery and theft of credit cards conviction which Petitioner's trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. m. Records Deposition of the Albuquerque New Mexico Police Department. Records of Karen Thompson's unlawful taking of a motor vehicle arrest which Petitioner's

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trial counsel should have obtained prior to cross-examining Ms. Thompson at trial. n. Records Deposition of the Austin Texas Police Department. Records of Karen Thompson's theft arrest which Petitioner's trial counsel should have obtained prior to crossexamining Ms. Thompson at trial. o. Deposition of Juanita Dotson. Petitioner will take testimony from this witness who was victimized by Ms. Thompson after befriending her as a prison pen-pal regarding Ms. Thompson's character for untruthfulness and propensity for sudden and unexpected violent outbursts. Petitioner's trial counsel should have interviewed this witness prior to his cross-examination of Ms. Thompson. p. Deposition of Ron Navarro. Petitioner will take testimony from this witness who spent time with Ms. Thompson in San Diego in the days after the murder regarding Ms. Thompson's statements. q. Deposition of Cathy Moreno. Petitioner will take testimony from this witness who let Ms. Thompson stay with her in San Diego in the days after the murder regarding Ms. Thompson's statements. r. Deposition of Larry Smith. Petitioner will take testimony from this witness who let Ms. Thompson stay with her in San Diego in the days after the murder regarding Ms. Thompson's statements. s. Deposition of Adel Smith. Petitioner will take testimony from this witness who let Ms. Thompson stay with her in San Diego in the days after the murder regarding Ms.

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Thompson's statements. t. Deposition of Michael Thomas. Petitioner will take testimony from this witness who let Ms. Thompson stay with her in San Diego in the days after the murder regarding Ms. Thompson's statements. u. Deposition of Dr. Anatolio Munoz. Petitioner will take the testimony of this psychiatrist regarding his engagement by Petitioner's trial counsel and his conversations with Petitioner's trial counsel including trial counsel's opinion that voluntary intoxication was not a defense in Arizona. v. Records Deposition of La Paz County Jail. Records of Petitioner's incarceration at the jail prior to sentencing, including his psychiatric medications.

III. The Court Has the Authority to Expand the Record. Despite the limitations imposed by Congress in its 1996 amendments to 28 U.S.C. §2254, this Court still has the authority to permit the record to be expanded in this case. The United States Constitution enshrines the privilege, through the writ of habeas corpus, to seek the aid of our Courts whenever a person is held in jail or prison in violation of the Constitution. U.S. C ONST. art. I, §9. Congress expressly provides that those wrongfully held in state custody may resort to the writ of habeas corpus to secure their release. 28 U.S.C. §2254. At its core, the writ of habeas corpus is the primary--and in many cases the

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only--recourse to redress miscarriages of justice. The "Great Writ" demands, at a minimum, an airing of the facts. The duty of this Court was clearly articulated by the Supreme Court when it acknowledged, [w]e are aware that confinement sometimes induces fantasy which has its basis in the paranoia of prison rather than in fact. But where 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 confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry. Obviously, in exercising this power, the court may utilize familiar procedures, as appropriate, whether these are found in the civil or criminal rules or elsewhere in the "usages and principles of law." Harris v. Nelson, 394 U.S. 286, 300 (1969) (emphasis added); see also Bracy v. Gramley, 520 U.S. 899, 909 (1997). Petitioner seeks to expand the record before this Court under Habeas Rule 7 in order to support his first, second, fifth and ninth claims for relief.

A. The Court has the authority to expand the record. As noted previously, when President Clinton signed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), he believed certain sections of the legislation warranted comment. The President specifically addressed the legislation's effect upon a petitioner's ability to prove facts to support his federal claims. What was important to the President upon signing the legislation was that petitioners would have an opportunity to develop the factual 23

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support for claims unless the failure to do so is "fairly attributable to the applicant." Id.4 Habeas Rule 7 authorizes district courts to expand the record under certain circumstances. Rule 7(a) allows the "parties to expand the record by submitting additional materials relating to the petition." When Congress amended the habeas corpus statute by enacting the AEDPA, it did not amend Habeas Rule 7. The amendments of 2004 were intended to be "stylistic" and not "substantive". Amendments. While some courts have erroneously applied §2254(e)(2) to a Rule 7 motion to expand the record under certain circumstances,5 several other jurisdictions have reached the opposite, and legally appropriate, conclusion. After exhaustive analysis in McNair v. Haley, 97 F. Supp. 2d 1270, 1280-86 (M.D. Ala. 2000), the district court determined that the ability to expand the record under Rule 7 was not affected by §2254(e)(2)'s stringent requirements for an evidentiary hearing. The McNair court reasoned that because Congress had not explicitly amended Rule 7 to apply the Advisory Committee Notes to 2004

In Michael Williams v. Taylor, 529 U.S. 420, 432 (2000), the Supreme Court determined "a person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all." The Court held, "[u]nder the opening clause of §2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. Interference by the state in developing the facts in state court does not bar a petitioner from developing the facts in federal court. Id. at 443. See e.g. Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001); Cardwell v. Greene, 152 F.3d 331, 337-38 (4th Cir. 1998). 24
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same standard utilized in §2254(e)(2), or stated that §2254(e)(2) applied to all evidence (not just evidentiary hearings), traditional principles of statutory interpretation must apply. Id. at 1281-82. In McNair, the court reasoned that, "[i]f Congress intended to restrict federal habeas review entirely to the state court record unless the requirements of §2254(e)(2) are met, or if Congress intended to eliminate Rule 7 record expansion in these cases, it could have done so explicitly. Instead, Congress restricted only evidentiary hearings, and this court must `assume that in drafting this legislation, Congress said what it meant.'" McNair, 97 F. Supp. 2d at 1282-83 (citing United States v. LaBonte, 520 U.S. at 757) (emphasis in original). "Rule 7 has not been supplanted but was instead left intact to function as it always has alongside the revised §2254." Id. at 1285. Further, the court in McNair emphasized, "[t]here is nothing in §2254 nor in any other AEDPA provision to suggest that the words `evidentiary hearing' should be read outside the scope of their ordinary usage. In this case, an evidentiary hearing is an evidentiary hearing is an evidentiary hearing. It is not, notably, the same as court-mandated expansion of the federal court record." Id. at 1282. This analysis hinges on the meaning of the term "evidentiary hearing" as used in §2254(e)(2). Because Congress expects that legislation will be read in light of Supreme Court precedent, this presumption also includes the idea that words are "uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense and with the meaning commonly attributed to them." Caminetti v. United States, 242 U.S. 470, 485-86 (1917).

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Further, "[w]here the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion." Id. at 485. As such, there is no reason provided in either §2254 or any other part of the AEDPA to suggest that "evidentiary hearing" should be interpreted in a nontraditional manner. As the McNair court eloquently summarized, "an evidentiary hearing is an evidentiary hearing is an evidentiary hearing." McNair, 97 F. Supp. 2d at 1282. In addition, the drafters of the AEDPA redrafted those existing statutory provisions that conflicted with the purpose of the new legislation. Rule 22 of the Federal Rules of Appellate Procedure was amended as part of the AEDPA's enactment. It should be

presumed that if Rule 7 did not comport with these standards it would have been altered as well. See United States v. LaBonte, 520 U.S. 751, 757 (1997) (holding that courts must "assume that in drafting this legislation, Congress said what it meant"). As a result, any finding that Rule 7 is somehow limited by the standard for evidentiary hearings set forth in §2254(e)(2) is clearly contradictory to congressional intent. Id. at 1282-83. While Rule 7 leaves the expansion of the record to the discretion of the district court judge, the advisory committee's note to Rule 7 states that one purpose of the rule is to assist the district court in determining whether an evidentiary hearing is warranted by the factual record, clearly suggesting that the standard for expansion of the record should not be the same as that required for allowing an evidentiary hearing. The idea that expansion of the record may be a preliminary step in determining the need for an evidentiary hearing has been

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frequently repeated by the courts. See e.g. Blackledge v. Allison, 431 U.S. 63, 81-82 (1977) (stating that discovery and expansion of the record can be tools to avoid the need for an evidentiary hearing); Cardwell v. Greene, 152 F.3d 331, 338-39 (4th Cir. 1998) (stating that expansion of the record may be sufficient to avoid an evidentiary hearing); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998). These cases conspicuously show that the standard for expansion of the record and provision of an evidentiary hearing cannot be the same, because one is widely considered a precursor to the other. See Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001) (stating that when discovery or expansion of the record is used to obviate the need for an evidentiary hearing, "it makes little sense to impose the same restrictions that are placed on petitioners seeking an evidentiary hearing").

B. Expansion of the record. Respondent moved to strike Exhibits D, E, F, G, H, I, J, K, M, EE, FF, HH and KK from Petitioner's submitted "Amended Petition for Writ of Habeas Corpus". Petitioner, though, submits the above noted claims need further factual development. Expansion of the record on each of these claims is essential to establish prejudice. Exhibits D, E, F and G address Claim I(B). (See ¶189-190 of "Amended Petition"). Exhibit H addresses Claim IX(D) and (E). (See e.g. ¶ 792, 824, 842, 857, 870, 872, 886, 893, 894, etc. of the "Amended Petition"). Exhibits I, J and K address Claim II. (See ¶ 209, 210 and 217 of the "Amended Petition"). Exhibit M addresses Claim V(B). (See ¶ 316 of

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the "Amended Petition"). Exhibit EE addresses Claim IX(C). (See ¶ 732, 737 of the "Amended Petition"). Exhibit FF addresses Claim IX(C). (See ¶ 738 of the "Amended Petition"). Exhibit HH addresses Claim IX(C). (See ¶ 772 of the "Amended Petition"). And, Exhibit KK addresses Claim IX(D). (See ¶ 860 of the "Amended Petition").

C. Claim I The declarations of the various witnesses, Barbara Carter, June Carter, Carl Carter, as well as Petitioner, provide evidence of the jurors speaking with members of the victim's family in the parking lot of the courthouse as well as seeing Petitioner in shackles outside the courtroom. A defendant's rights are violated when a jury's verdict is affected by prejudicial extraneous facts and information not introduced into evidence. Mattox v. United States,146 U.S. 140, 13 S.Ct. 50 (1892). And, if a petitioner can make a showing that he is prejudiced by jurors viewing him in shackles outside the courthouse, he is entitled to relief. See e.g. Ghent v. Woodford, 279 F.3d 1121, 1133 (9 th Cir. 2002); Kennedy v. Cardwell, 487 F.2d 101, 110 n. 18 (6 th Cir. 1973). Moreover, some constitutional violations are so basic to a fair trial that their infraction can never be treated as harmless error. Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045 (1987); Tumey v. Ohio, 273 U.S. 510 (1927).

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The evidence ultimately presented from these various witnesses will provide the proof of the allegations and the prejudice that will warrant habeas relief in this case.

D. Claim II The various jail and hospital records provide evidence of Petitioner's use of the drug Elavil and treatment for injuries at Good Samaritan Medical Center. These records are relevant to his claims of incompetency due to use of psychotropic drugs and head injuries at the time of trial and sentencing. The right of a criminal defendant to be tried only if competent is "fundamental to an adversary system of justice." Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896 (1975). The conviction of an incompetent person violates due process. Pate v. Robinson, 383 U.S. 375 86 S.Ct. 836 (1966); Medina v.California, 505 U.S. 437, 112 S.Ct. 2572 (1992). The incompetency of a defendant during a trial can never be harmless error, no matter how obvious his guilt. U.S. ex rel. Lewis v. Lane, 822 F.2d 703 (7 th Cir. 1987); United States ex rel. Bilyew v. Franzen, 686 F.2d 1238 (7 th Cir. 1982); United States ex.rel. SEC v. Billingsley, 766 F.2d 1015, 1022 n.11 (7 th Cir. 1985). The trial of an incompetent defendant is a

structural defect in the trial mechanism that makes the entire proceeding a nullity. Because of the use of psychotropic drugs prior to and at the time of his incarceration for the instant offense combined with his prior traumatic injuries, Petitioner was not able to understand the nature of the proceedings and cooperate with his counsel. This, Petitioner is

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entitled to prove at an evidentiary hearing.

E. Claim V The trial court improperly found that Petitioner's prior robbery involved the use or threat of force. The documents involving his prior robbery conviction specifically note the offense as being a "non-dangerous" class four felony. An aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty, and must be "constructed to permit the sentencer to make a principled distinction between those who deserve the death penalty and those who do not." Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092 (1990). An aggravating circumstance based on a "non-dangerous" felony does not do this. The documents characterization of the offense specifically impeaches the finding of the trial court. The evidence should have been considered at trial and is relevant for consideration now.

F. Claim IX Judge Schafer found that trial counsel had not been ineffective at Petitioner's sentencing and denied Petitioner's petition for post-conviction relief. Judge Schafer rejected Petitioner's argument that trial counsel had failed to investigate Petitioner's background and that he presented no mitigation at Petitioner's sentencing. Judge Schafer found that trial counsel searched for mitigation by speaking with Petitioner's family about his background

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and instructing his investigator to search through Petitioner's medical and school records. Judge Schafer found that trial counsel "found no, or very little, mitigation" and this fact did not render his efforts ineffective. Judge Schafer found no evidence of Strickland prejudice to Petitioner. Exhibit X, page two. Judge Schafer found that during post-conviction proceedings, Petitioner's "investigator was on this case for over 18 months and produced nothing and could point to nothing that was worth the court's money. I find from the evidence I heard that any lack of mitigation was due more to the fact that there was none, rather than to Politi's lassitude or incompetence." Id. The record does not support Judge Schafer's finding that no mitigation was presented because none existed. The mitigation specialist testified that the only work she had done since she was appointed was to interview Petitioner once. [Amended Petitioner ¶819] This mitigation specialist was hand-picked by Judge Irwin to assist PCR counsel after PCR counsel had submitted the names of four highly qualified and competent mitigation specialists. [Id. ¶802-806] Prior to Petitioner filing his Amended Petitioner, a mitigation investigating was undertaken and a partial social history completed. Exhibit H. This exhibit as well as the supporting declarations and records 6 and the declaration of Rick Patterson, trial counsel's investigator,7 provide clear evidence that trial counsel was constitutionally ineffective during

6

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sentencing; PCR counsel was ineffective in not investigating and presenting the mitigating evidence which existed, the sentencing judge appointed a mitigation specialist to assist Petitioner who did nothing and failed to uncover voluminous mitigating evidence for Petitioner at his PCR hearing; and that Judge Schafer's finding that no mitigation existed is not entitled to a presumption of correctness. Moreover, at Petitioner's first opportunity to appeal the denial of his Sixth Amendment right to effective assistance of counsel he was appointed counsel, Matt Newman, who had an actual conflict of interest. Matt Newman's brother was a Major in the La Paz County Sheriff's Office and an investigator in the case against Petitioner. (Amended Petitioner ¶995). Matt Newman's wife, Sherri Newman, is the Clerk of the La Paz County Superior Court. Id. Matt Newman derives a substantial portion of his income by accepting appointed cases from the La Paz County Superior Court. At the time of Petitioner's postconviction proceedings, Judge Michael Burke, Petitioner's appellate counsel and supervisor of Petitioner's trial counsel, was the only judge on the La Paz County Superior Court bench. These Exhibits are required so that Petitioner may rebut the presumption of correctness attached to the state court's findings. 28 U.S.C. §2254(e)(1). In Arizona capital cases, post-conviction review provides the only forum in which to assert constitutional claims of ineffective assistance of trial counsel and, therefore, these proceedings are a first appeal "as of right" as to these claims, entitling Petitioner to effective assistance of counsel. Because the State of Arizona deprived Petitioner of the effective

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assistance of counsel during post-conviction proceedings, it validated a death sentence against him through judicial proceedings where "counsel's conduct so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Accordingly, Petitioner's death sentence was imposed "in violation of the Constitution or laws [] of the United States." 28 U.S.C. §2254(a). However, the AEDPA amended the habeas statute to provide that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under §2254." Id. §2254(i). Thus, in order for Petitioner to present his claim that counsel at his state postconviction proceedings was ineffective, he must challenge the constitutionality of the AEDPA. In order for this Court to fully and fairly evaluate Petitioner's claim that his state postconviction counsel was constitutionally ineffective, this Court must allow him to bring before it evidence of counsel's ineffectiveness. For this reason, Petitioner seeks to expand the record before this Court. Therefore, after arguing that §2254(i) is unconstitutional, Petitioner will show that he has not "failed to develop the factual basis of" his claim of the ineffectiveness of his post-conviction counsel. 28 U.S.C. §2254(e)(2). The Constitution provides that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require

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it." U.S. Const. art. I, §9, cl. 2. In this way, that document protects "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. at 290-91. "[I]n [habeas] proceedings [] a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law." Id. at 292. Without the ability to resort to the Great Writ, prisoners would have no means to redress unconstitutional action by the government that gives rise to their imprisonment. "Collateral review of judgments [] is subject to legislative control, as the first Congress, dominated by those who wrote and ratified the Constitution, recognized." Lindh v. Murphy, 96 F.3d 856, 868 (7th Cir. 1996) (citing Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830)), rev'd on other grounds, 521 U.S. 320 (1997). Throughout the nineteenth century, Congress tinkered with the boundaries of the writ; it was not until 1867 that Congress extended the writ to prisoners in state custody. See Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1867) (affirming the power of Congress to remove state custody from the purview of federal habeas relief). In light of this tradition, the Court has remarked that "judgments about the proper scope of the writ are `normally for Congress to make.'" Felker v. Turpin, 518 U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). For this reason, not every modification by Congress to the scope of the writ amounts to an unconstitutional suspension. "The Suspension Clause is not a ratchet." Lindh, 96 F.3d at 868. At the same time, however, Suspension Clause concerns are paramount whenever

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Congress removes some important claim from the scope of habeas review. See e.g. INS v. St. Cyr, 533 U.S. 289, 305 (2001) ("[A] serious Suspension Clause issue would be presented if we were to accept the INS's [sic] submission that the 1996 statutes have withdrawn [traditional habeas] power from federal judges and provided no adequate substitute for its exercise."). An unconstitutional suspension of the writ occurs when whatever procedure remains after modifying the statute is not "adequate and effective" to secure the same rights as the prior version of the habeas statute secured. Swain v. Pressley, 430 U.S. 372, 381 (1977). When the District of Columbia required all prisoners seeking collateral review of their convictions to present those claims to an Article I judge instead of an Article III judge, the Court concluded that there had not been an unconstitutional suspension of the writ. Because "the Constitution does not require that all persons charged with federal crimes be tried in Art. III courts[,]" Id. at 382-83, and "judges of the Superior Court of the District of Columbia must be presumed competent to decide all issues, including constitutional issues, that routinely arise in the trial of criminal cases[,]" the collateral relief that remained--here, pursuing post-conviction relief from non-Article III judges--was "neither ineffective nor inadequate" to test the legality of a prisoner's detention. Id. at 383. In the same vein, the AEDPA's modifications to the habeas statute requiring a habeas petitioner to obtain leave from the court of appeals before filing a second or successive habeas petition, see 28 U.S.C. §2244(b), "simply transfer[red] from the district court to the court of appeals a screening function which would previously have been performed by the

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district court[.]" Felker, 518 U.S. at 664. This change was merely the next step in the "complex and evolving body of equitable principles [in habeas law] informed and controlled by historical usage, statutory developments, and judicial decisions[,]" rather than an unconstitutional suspension of the writ. Id. (quoting McCleskey v. Zant, 499 U.S. 467, 489 (1991)). However, removing an entire class of claims from the scope of habeas review altogether cannot, by definition, leave an adequate and effective means for prisoners to challenge their confinement if those prisoners' grievances implicate claims of the precluded sort. In Arizona, a prisoner cannot challenge the effectiveness of his trial counsel on direct appeal; he must do so in a petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (Ariz. 1989) ("As a general matter, we recommend that when a defendant wishes to raise the question of ineffective assistance during the pendency of his appeal, he should file the proper petition under Rule 32 [] in the trial court and seek an order from the appellate court suspending the appeal."); see also Krone v. Hotham, 180 Ariz. 364, 366, 890 P.2d 1145, 1151 (1995)("We continue to commend the Rule 32 process to resolve claims of ineffective assistance of counsel.").8 Thus, post-conviction review is the first opportunity Arizona affords a criminal defendant to challenge the effectiveness of trial counsel. A criminal

After being twice convicted of murder based on bite mark evidence and once receiving the death penalty, Krone was later exonerated by DNA evidence that proved another person committed the rape and murder. 36

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defendant is entitled to the effective assistance of counsel at trial, Strickland v. Washington, and at the first appeal as of right from that trial. Evitts v. Lucey, 469 U.S. 387 (1985). Therefore, a criminal defendant in Arizona is entitled to the effective assistance of counsel at any post-conviction proceeding where that defendant wishes to challenge the effectiveness of trial counsel. This conclusion is not inconsistent with the rule that a criminal defendant is not entitled to counsel--and hence not entitled to the effective assistance of counsel-- during any discretionary appeal or post-conviction proceeding. See Pennsylvania v. Finley, 481 U.S. 551 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Arizona has created the Rule 32 postconviction review process and required criminal defendants to bring ineffectiveness assistance of counsel claims there instead of on direct appeal. Rule 32 post-conviction proceedings can therefore only be the first appeal as of right with respect to the claim that a defendant's trial counsel was ineffective. The character of the proceedings--as either direct or collateral review--is irrelevant. The appeal as of right exists so that the "criminal defendant [may] [] demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful." Evitts, 469 U.S. at 396. The defendant is entitled to the effective assistance of counsel any time the state affords him an appeal as of right--an attempt to demonstrate that his conviction is unlawful. This requirement applies with equal force to criminal defendants in Arizona who wish to challenge the effectiveness of trial counsel at a Rule