Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Arizona State Bar No. 012359 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-358-PHX-DGC Plaintiff-Respondent, v. Lawrence Leon Jackson, Defendant-Movant. CV-07-1880-PHX-DGC (JRI) RESPONSE TO MOTION FOR DISCOVERY PURSUANT TO RULE 6 OF THE FEDERAL RULES GOVERNING SECTION 2255

The United States of America, by and through its attorneys undersigned, hereby opposes

15 defendant's "Motion for Discovery Pursuant to Rule 6 of the Federal Rules Governing Section 16 2255." The motion for discovery pertains to matters regarding defendant's "Motion to Vacate, 17 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255," and thus, the government's 18 response to that motion is also relevant to this response. Thus, the government incorporates the 19 pleadings regarding that motion by reference. 20 21 22 23 24 25 26 27 28 Respectfully submitted this 19th day of December, 2007. DIANE J. HUMETEWA United States Attorney District of Arizona S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

Case 2:04-cr-00358-DGC

Document 141

Filed 12/19/2007

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant claims that he needs discovery pertaining to the following issues: 1.) Failure to DNA test the murder weapon 2.) Depositions of Tracy Jackson, "Daniel Juans" and Clifford Smith. 1/ A.) Failure to have the defense test the gun for DNA Defendant argues in his 2255 motion that the gun in this case was not his and that DNA

8 testing would have proven that the gun was not his. Defendant did not raise this issue pre-trial, 9 during trial, or at sentencing. Defendant does not assert how DNA testing could prove that the 10 gun was not his; at best, it could only reaffirm that which the jury already knew: that defendant's 11 DNA was not on the gun. 12 Nonetheless, as is more fully discussed in the government's response to the 2255 motion,

13 DNA testing to prove ownership of the gun was not necessary in this case; defendant admitted 14 to owning it and admitted that he used the gun to beat Antonio Jackson. For all of these reasons, 15 additional DNA testing would not provide any additional information regarding the ownership 16 of the gun that the jury did not already consider. 17 18 B.) Depositions of Tracy Jackson, "Daniel Juans" and Clifford Smith As noted in the government's response to defendant's 2255 motion, even if defendant

19 deposed Tracy Jackson, "Daniel Juans" and/or Clifford Smith and each indicated that they 20 would now testify or would have testified on behalf of defendant, the defendant is not entitled 21 to 2255 relief for ineffective assistance of counsel. 22 The relevant inquiry is not what these witnesses would have said or would say now, but

23 whether defense counsel's failure to present them was tantamount to ineffective assistance of 24 counsel. As is shown by the 2255 pleadings, even assuming that these witnesses would now be 25 26 This is now the third version of "Daniel's" last name. In trial, defendant testified he did not know "Daniel's" last name. During testimony, he advised that he thought it was 27 "Thomas." In the 2255 motion, he alleges that "Daniel's" last name is "Juan." In this pleading, 28 he alleges the last name is "Juans."
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1 favorable to defendant does not amount to ineffective assistance of counsel as defense counsel's 2 performance does not meet the Strickland test. 3 Other than defendant's affidavit, there is no evidence from defense counsel that defendant

4 in fact discussed these witnesses with defense counsel. There is no evidence that defendant 5 gave his attorney sufficient information from which to locate "Daniel" and/or Tracy Jackson. 6 In fact, defendant admitted during cross-examination that his attorney could not locate "Daniel" 7 because he was "on the run." 8 Defendant alleges that he discussed all of these witnesses with defense counsel. If so, then

9 defense counsel made a tactical decision not to call those witnesses. Defendant has not provided 10 evidence from defense counsel regarding defense counsel's tactical decision to use certain 11 witnesses. 12 Similarly, defendant has alleged that Clifford Smith and his attorney knew of defendant's

13 request to have Clifford Smith testify. Further, Clifford Smith's name was read to the jury as 14 a potential witness in this case. This is evidence that defense counsel knew of Clifford Smith 15 as a potential witness and either was unable to use him as a witness or made a tactical decision 16 not to use him as a witness. Clifford Smith did nothing to make himself available as a witness 17 for defendant. There is no evidence or law to show that defense counsel had an ability to compel 18 Clifford Smith to testify. 19 As is shown by the 2255 pleadings and attached transcripts, defendant never mentioned

20 Tracy Jackson as an alibi witness during his testimony. He did not ever tell the jury that he was 21 with Tracy Jackson on the night of the murder. Further, on October 21, 2004, only five days 22 before trial, when the court addressed the issue of the joint witness list, defendant never urged 23 the court to add "Daniel" or "Tracy Jackson" to this list. Neither of these witnesses was 24 mentioned as a potential witness and/or a witness who wanted to testify. 25 The government attempted to provide this court with information regarding the specific

26 performance of defense counsel in this case. As is noted in the government's response to the 27 2255 motion, defendant's trial attorney, John Rood, refused to discuss matters regarding his 28 client without his client's waiver. Defendant refused to provide such a waiver.
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Defendant has the burden of proving defense counsel's deficiency. He has the ability to

2 allow defense counsel to respond to the allegations, yet, he has chosen to restrict defense 3 counsel's ability to do so. Thus, defendant has chosen to supply this court with only limited 4 information when a wealth of information is available by his waiver of the attorney/client 5 privilege. Thus, the court can and should decide defendant's motion on the record and there is 6 no need for depositions or the discovery. 7 Conclusion 8 Based on the foregoing, the government requests that the court deny defendant's "Motion

9 for Discovery Pursuant to Rule 6 of the Federal Rules Governing Section 2255." 10 11 12 13 14 15 S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney Respectfully submitted this 19th day of December, 2007. DIANE J. HUMETEWA United States Attorney District of Arizona

16 Copy mailed this 19th day of December, 2007 to: 17 Lawrence Jackson Fed. Reg. No. 82426-008 18 U.S. Penitentiary Pollock P.O. Box 2099 19 Pollock, Louisiana 71467 20 BY: 21 :nbd 22 23 24 25 26 27 28
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