Free Order on Motion for Discovery - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff/Respondent -vsLawrence Leon Jackson, Defendant/Movant CR-04-0358-PHX-DGC CV-07-1880-PHX-DGC (JRI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration are Movant's Motion for Discovery, filed October 1, 2007 (#134), and Motion to Hold Government's Response in Abeyance or alternatively Motion for Extension of Time, filed January 18, 2008 (#145). Background - Movant was convicted at trial on charges stemming from a kidnaping and murder in which the victim was beaten with a pistol and ultimately stabbed to death. Movant has filed a Motion to Vacate (#132) asserting that his conviction and sentence should be vacated based inter alia on ineffective assistance of trial and appellate counsel. Respondent filed a Motion for Summary Dismissal (#137), arguing that Movant has refused to waive his attorney-client privilege with respect to his ineffective assistance claims, and thus these claims should be dismissed. Subsequently, Respondent filed its Response to the Motion to Vacate, in which Respondent addressed the merits of the ineffective assistance claims but then argued that an evidentiary hearing is not required in light of the absence of a waiver of privilege. (#140 at 33.) On December 31, 2007 Movant responded to the Motion for Summary Dismissal, arguing that he "waives the privilege to the extent necessary to give the government a fair opportunity to defend against the charges." (#143 at 1.) On January 18, 2008, Respondent filed a Supplemental Response (#144) to the
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Motion to Vacate, noting the waiver by Movant and providing a statement by counsel concerning the claims of ineffectiveness. Motion for Summary Dismissal - The undersigned magistrate judge may not resolve the motion for summary dismissal (#137), which could be dispositive of Movant's claims. However, it appears that the waiver proffered by Movant in his response (#143) may have rendered the motion for summary dismissal moot. Accordingly, Respondent will be given an opportunity to either withdraw the Motion for Summary Dismissal, or to show cause why it should not be denied as moot. Motion to Hold Response in Abeyance/ Motion to Extend - Movant's Motion to Hold in Abeyance (#145) argued that Movant's Response (#140) to the motion to vacate is premature in light of the then purportedly unresolved waiver issued. Respondents have not responded to the latter motion. However, Movant's motion was filed on the same date that Respondent's Supplemental Response (#144) to the motion to vacate was filed. Thus it appears that to the extent that the Supplemental Response addressed the waiver issue, there is no need to hold the response to the motion to vacate in abeyance. Accordingly, this portion of the motion will be denied. That denial will be without prejudice so that it may be re-filed, in the event that Respondents argue that the waiver issue was not resolved by the waiver embodied in Movant's Response (#143) to the motion for summary dismissal. Movant requested, in the alternative, an extension of 45 days to reply in support of his Motion to Vacate, citing as cause for the delay a lockdown at his prison. Subsequently, Respondent filed his Reply. Accordingly, this portion of the motion will be granted to the extent that the Reply (#146) will be deemed timely. Motion for Discovery - Movant's Motion for Discovery (#134) argues that Movant should be permitted discovery to: (1) conduct DNA testing on the murder weapon; and (2) to depose the witnesses counsel was ineffective for not pursuing because they will establish Movant's alibi defense. Respondent argues (#141) that: (1) DNA testing would only establish what the jury already knew: that Movant's DNA was not on the weapon; and (2)
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the relevant question to Movant's ineffective assistance claims as to his alibi witnesses is not what they would testify to now, but how counsel believed at the time of trial that these witnesses would testify. Movant has not replied in support of his motion. Rule 6, Rules Governing Section 2255 Proceedings provides that discovery may be authorized "for good cause." Availability of any discovery during habeas proceedings is committed to the sound discretion of the district court. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Evaluation of the value of discovery necessarily involves consideration of the impact on the merits of the claims in the motion to vacate, which the undersigned has not yet addressed, nor may the undersigned resolve. However, in light of the motion and response and review to date, the undersigned does not find good cause for the requested discovery. DNA Testing - Defendant argues that counsel was ineffective for failing to obtain testing would have proven that his DNA was not on the gun and thus he could not have wielded the gun. (Memorandum, #133 at 6.) Proof of the presence of Movant's DNA would certainly foreclose Movant's ineffective assistance claim. However, proof of the absence of Movant's DNA does not appear necessary to a resolution of whether counsel was ineffective for failing to obtain such proof. Movant offers nothing to show that his DNA would have necessarily been on the weapon had he used it in the assault on the victim. Indeed, the weapon was ultimately discovered on February 19, 2004, some three weeks after the murder, in the possession of a third party. (Answer #140, Attachment A, R.T. 10/28/04 at 183.) Moreover, there was never any suggestion that Movant's DNA was on the weapon. Rather, the only evidence of DNA on the weapon was that of the victim. (Answer, #140, Attachment A, R.T. 11/2/04 at 66.) Depositions of Alibi Witnesses - Respondents do not challenge Movant's claims of ineffectiveness with regard to alibi witnesses on the basis of their expected testimony now. Rather, Respondents rely upon the availability of that information to counsel to present at trial. Movant seeks to depose Tracy Jackson, Daniel Juans and co-defendant Clifford C.
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Smith. Movant argues that he was at the home of Jackson and Juans at the time of the murder. (Memorandum, #133 at 3.) He argues that Smith has avowed that Movant was not present during the murder or ensuing cleanup of the scene, and presents an affidavit to that effect. (See Motion, #132 at Attachments.) Respondents present a statement by defense counsel that counsel had never heard of Tracy Jackson, and that Defendant had denied knowing Daniel Juans' last name or how to contact him. Indeed, Respondents point out that at trial, Movant testified that he was unsure of Daniel's last name but thought it might be "Thomas," did not know the name or number of the street where Daniel lived, and that his attorney could not locate Daniel because he was "on the run from the police." (Answer, #140, Attachment A, R.T. 11/2/04 167-169.) The present testimony of these witnesses would not resolve that they were in fact available to counsel, or more precisely that counsel was aware of that availability. Indeed, in the course of evaluating this ineffectiveness claim, the Court may simply indulge the presumption that their testimony would now be supportive of Movant's alibi. Moreover, Movant offers no reason why he cannot present testimony of these witnesses by way of affidavit. Movant clearly has access to Smith, and offers no indication that Jackson and Juans would not have responded to requests for affidavits. Moreover, he offers no indication what additional information Smith has that would be presented by way of deposition that could not have been included in his affidavit. Finally, Movant offers no suggestion that Jackson and Juans are now locatable. For the foregoing reasons, the motion for discovery will be denied. Consideration of Motion to Vacate - Unless the Motion for Summary Dismissal remains at issue, it appears to the undersigned that Movant's Motion to Vacate (#132) and Motion for New Trial (#136) are ready for consideration, together with the following briefs: 1. 2. 3. Movant's Memorandum in Support, filed October 1, 2007 (#133); Respondent's Response to Motion to Vacate, filed December 19, 2007 (#140); Respondent's Response to Motion for New Trial, filed December 19, 2007 (#142);
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4. 5.

Respondent's Supplemental Response, filed January 18, 2008 (#144); and Movant's Reply, filed February 15, 2008 (#146).

IT IS THEREFORE ORDERED that Respondents shall have ten days from the filing of this Order to either: (1) file a withdrawal of their Motion for Summary Dismissal, filed October 24, 2007 (#137); or (2) show cause why the motion should not be denied as moot. IT IS FURTHER ORDERED that Movant's Motion for Discovery, filed October 1, 2007 (#134) is DENIED. IT IS FURTHER ORDERED that Movant's Motion to Hold Government's Response in Abeyance, filed January 18, 2008 (#145) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Movant's Motion for Extension of Time, filed January 18, 2008 (#145) is GRANTED to the extent that Movant's Reply, filed February 15, 2008 shall be deemed timely filed.

DATED: April 7, 2008
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

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