l
Gary T. Lowenthal - 330003
1 [email protected]
Arizona State University College of Law
2 4 P. O. Box 877906
l Tempe, Arizona 85287-7906
3 Telephone: (480) 965-5379
4 Douglas Gerlach — 06869
J [email protected]
5 JENNIQNGS, STROUSS & SALMON, 1>.L.C.
A Professional Limited Liability Company
6 ( The Collier Center, llt Floor
7 201 East Washington Street
l Phoenix, Arizona 85004-2385
8 Telephone: (602) 262-5911
l
9 Attomeys for Petitioner
IO IN THE UNITED STATES DISTRICT COURT
1* Fon THE Drsrkrcr or ARIZONA
12
13 STEVEN CRAIG JAMES, No. CV 00-1118-PHX-NVW
14 ( Plaintiff DEATH PENALTY CASE
vs. MOTION FOR EXTENSION TO
15 l FILE MEMORANDUM RE:
16 DORA B. SCHRIRO, et al., MERITS
17 Defendants (Second Request)
18 Petitioner’s counsel moves the Court for an extension until March 5, 2007, for
19 filing Petitioner’s Memorandum Re: Merits. The current deadline is November 22,
20 2006. We request this extension because of the co;mplexity of issues we need to
21 address and the need for extensive factual investigation before we can prepare the
22 l Merits Memorandum. Counsel for Respondents does not oppose this Request.
23 Several of the issues in the Merits Memorandum are complex. This COl11`t’S
24 Order Re: Procedural Status of Claims (the July 24 Order) ordered us to tile a
25 memorandum on twenty-two claims. In addition to briefmg the merits of each claim,
26 we must identify and apply the appropriate AEDPA standard for review, and identify
U é°§%â€2e0B9El?2€PFi)1 8-NVW Document 96 Filed 11/O2/2006 Page 1 of 4
1
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1 the claims for which we are seeking further evidentiary development. Specifically,
2 N the Court ordered us to include the following:
3 "Petitioner shall . . . identify . . . (1) each claim for which
4 1 further evidentiary development is sought; (2) the facts or
5 1 evidence sought to be discovered, expanded or presented
6 at an evidentiary hearing; (3) why such facts were not
7 developed in state court; and (4) why the failure to
8 develop the claim in state court was not the result of lack
9 of diligence, in accordance with the Supreme Court’s s
10 decision in Williams v. Taylor, 529 U.S. 420 (2000)."
11 July 24 Order at 21.
12 1 This Court also ruled in the July 24 Order that Claims 10, 12 and 15 of the
13 _ habeas petition (alleging ineffective assistance of counsel at trial and sentencing) are
14 not barred by an adequate state procedural rule, and are properly before the Court for
15 1 review on the merits. [July 24 Order at 15] The underlying events relating to these
16 claims occurred twenty-four years ago, and relevant events involved witnesses and
17 documentary evidence going back far earlier} Claims 10, 12 and 15 are based on
18 allegations Petitioner made in a 1984 petition for post--conviction relief in state court,
19 alleging that his trial lawyer failed to conduct investigations and present evidence
20 relating to 11is drug abuse, life history, and mental sta1;e at the time of the offense. A
21 substantial portion of our Merits Memorandum will address these claims, and we
22 intend to request evidentiary development and a hearing.2
23
24 I EV; also intend to request further evidentiary development on other claims, including Claims 1-3, 5
25 g an ~
26 2 The state court never conducted an evidentiary hearing on these claims. In applying its procedural
bar, it did not even reach the question of whether the claims are colorable.
1 鑧&â€2x>B98
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1 This Court has asked us to accomplish our task in two—and-one-half months.3
2 We have diligently attempted to work within this time frame, but have found that six
3 months is more realistic in this case. Claim 15 alone presents a daunting amount of
4 preliminary factual research, as it relates to allegations of inadequate fact
5 investigation in preparation for a capital sentencing hearing that took place almost a
6 quarter century ago. We have retained the services of an investigator to assist us in
7 identifying the facts and evidence sought to be discovered, expanded or presented at
8 an evidentiary hearing relating to this and other claims, and together we have
9 prepared an initial list of more than sixty witnesses to be located and interviewed, as
10 well as numerous records relating to Petitioner’s mental health, social history, and
11 N substance abuse. Without this preliminary investigation, we cannot identify the facts
12 we will request the Court to consider at an evidentiary hearing.
13 We request an extension until March 5, six months from the day Petitioner’s
14 lead counsel became available to work on the Merits Memorandum. We will
15 conscientiously endeavor to meet this deadline.
16 As noted, counsel for Respondents, Robert J. Gorman, Jr., has authorized us to
17 state that he does not oppose this motion.
18 Relief Requested
19 E The motion should be granted.
20 l
21 1
22 |
23
24
25 . . . .
l This Court m1t1ally ordered us to tile the Merrts Memorandum within two months of its July 24
26 Order, then granted us a two month extension (until November 122) because Petitioner’s lead counsel
1 was out of the country and could not begin to work on the merits memorandum until September 5.
, 鑧@°24>B¤€1 8-Nvvv Document 963 Filed 11/02/2006 Page 3 of 4
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I I November ip, 2006.
2 Gary T. Lowenthal
Arizona State University College of Law
3 I P.O. Box 87’7906
4 I Tempe, Arizona 85287-7906
I
I Douglas Gerlach
5 ; JENNINGS, STROUSS & SALMON,
I P.L.C. th
6 The Collier Center, ll Floor
201 E. Washington Street
7 I Phoenix, AZ 85004-2385
8 I Attorn r Petitioner
9 I
10 By
Attorneys for Pet1t1oner
ll I hereby certify that on November .2/ , 2006, I electronically transmitted this
12 I Motion for Extension to File Memorandum to the Cl·erk’s Office using the CM/ECF
System for filing and transmittal of a Notice of Electronic Filing to the following
13 CM/ECF registrants:
I
14 Robert John Gorman
15 I Office of the Attorney General
I Criminal Appeals Section
16 I 400 W. Congress, Suite 315
17 Tucson, AZ 85701-1367
I [email protected]
18 I Attorney for Respondents
19 and copy mailed to:
I
20 i
The Honorable Neil V. Wake
21 I Judge, United States District Court
22 I United States District Court
I 401 West Washington
23 PhO€I1lX, AZ 85003
24
25 /s/ Denise L. Christiansen
I
26
éI§&â€24é>B
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