Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona


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Gary T. Lowenthal - California Bar No. 46923 [email protected] 1490 Camino Corrales Santa Fe, NM 87505 Telephone: (505) 982-6708 Douglas Gerlach - 06869 [email protected] JENNINGS, STROUSS & SALMON, P.L.C. A Professional Limited Liability Company The Collier Center, 11th Floor 201 East Washington Street Phoenix, Arizona 85004-2385 Telephone: (602) 262-5911

8 Attorneys for Petitioner 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vs. DORA B. SCHRIRO, et al., Defendants Pursuant to Rule 59(e), Federal Rules of Civil Procedure, Petitioner moves this Court to alter or amend its Judgment of July 18, 2008, as it pertains to Claim 15.1 Additionally, pursuant to Rule 52(b), Federal Rules of Civil Procedure, Petitioner moves this Court to amend its findings and make additional findings, and to amend the judgment accordingly. Petitioner submits this motion on the ground that newly discovered evidence requires the Court to set aside or alter its Judgment. Specifically, Petitioner asks this Court to expand the record to include the attached exhibits (as well as Exhibits 1-82, submitted previously), grant Petitioner's request for an evidentiary hearing on Claim 15, STEVEN CRAIG JAMES, Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV 00-1118-PHX-NVW DEATH PENALTY CASE MOTION TO ALTER OR AMEND JUDGMENT

1 Alternatively, Petitioner moves for a new trial, pursuant to Rule 59(a), based on 26 newly discovered evidence.

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1 and grant Petitioner's Amended Petition for Writ of Habeas Corpus as it pertains to Claim 2 15. 3 1. 4 Newly discovered evidence. Petitioner stated in the Opening Memorandum Re: Merits of Claims that counsel's

5 investigation of Petitioner's life history was ongoing, and requested permission to submit 6 additional documents to this Court, as they became available. [Merits Memorandum at 1037 104] On June 27, 2008, three weeks before this Court rendered its Memorandum of 8 Decision and its Judgment dismissing the Amended Petition for Writ of Habeas Corpus, 9 Petitioner's lead counsel notified the Court that Petitioner had uncovered newly 10 discovered evidence relevant to Claim 15. [Ex. 83, attached]2 Petitioner's counsel stated in 11 June 2008: 12 13 14 15 16 17 18 19 20 21 22 The exhibits Petitioner submitted with Petitioner's Opening Memorandum Re: Merits of Claims were numbered 1-76. There is no Exhibit 77. The exhibits Petitioner submitted 24 with the Reply in Support of the Merits of Petitioner's Claims were numbered 78-82. The exhibits submitted with this Motion to Alter or Amend are numbered 83-88. 25 3 Petitioner has recently discovered the whereabouts of a sixth witness, Norman O'Steen, have sexually young 26 who mayexercised due molested Petitioner when Petitioner was aO'Steenchild. Petitioner's counsel diligence in attempting to locate Mr. before filing the Merits Memorandum, but was unable to do so because Mr. O'Steen was either homeless at 2 23
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Petitioner expects to complete this investigation promptly and to submit a request for further evidentiary development (including declarations or affidavits from one or more of the newly discovered witnesses), providing appropriate notice to Respondents and an opportunity for Respondents to oppose such a request. [Ex. 83 at 2] Petitioner now has five such declarations [Exs. 84-88, attached], and requests leave to expand the record for the Court to consider them along with the exhibits accompanying Petitioner's Opening Memorandum Re: Merits of Claims.3 The following

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subsections summarize the declarations and explain why they were not previously submitted. Declaration of Lora Pannell (Ex. 84) Lora Pannell is Steven James's biological mother. Her declaration adds significant information to the mitigation evidence previously submitted to the Court. Mrs. Pannell describes how poorly equipped she was as a parent. Her own mother died when she was ten or eleven years old, and she was raised by an extremely violent father who physically abused his children. Her siblings were seriously mentally ill and later were physically abusive toward their own families. Lora herself rarely attended school as a child and dropped out in seventh grade. As a teenager, she began to have babies at a rate of almost one per year. Steven was born when she was nineteen. Mrs. Pannell describes the conditions in Steven's home when he was a small child. The family lived in a shack. Steven's father, Lester Pannell, was a bigamist and a violent heroin addict. He had no interest in his children and injected himself with heroin in their presence. He ran off with his first wife when she was released from prison, abandoning Mrs. Pannell and her children. Soon thereafter, Jerry Isgrigg, Sr., a violent alcoholic, moved in with Mrs. Pannell and she immediately became pregnant again. Most important, Mrs. Pannell admits that she physically abused Steven. She thought he was a "brat," and when he cried, she put him in his bed to get him to stop screaming. When he cried even louder, she attempted to kill him, placing a

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living in an nursing home in the Los Angeles Mr. O'Steen 25 the time orin a nursing undisclosed rural area of Michigan. Petitioner area. not have the now lives home in a does to Michigan to O'Steen before 26 Court's authorization for funding to travelexpired, but willinterview Mr. authorization if the ten day period for filing this Motion has request such the Court reopens the case. 3
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pillow over his face to smother him.4 Petitioner's counsel attempted to locate Mrs. Pannell before filing the

3 Merits Memorandum and the Reply in Support of the Merits Memorandum. 4 Internet searches failed to disclose her whereabouts, and family members could state 5 only that she lived in Palmdale, California (about eighty miles north of Los Angeles), 6 near a local high school. Petitioner's lead counsel traveled to Palmdale at his own 7 expense and spent a day there trying unsuccessfully to find her, knocking on 8 apartment doors near the high school. Finally, a family member gave Petitioner's counsel 9 her address and telephone number in June 2008, and counsel promptly interviewed her in 10 her home. 11 12 Declaration of Donna Herzog (Ex. 85) Donna Herzog is Steven James's biological sister. She and Steven were placed for

13 adoption simultaneously. Her declaration sheds light on the manner in which the children 14 were treated in Petitioner's home of origin. 15 · 16 17 18 · 19 20 · 21 22 23 24 25 26 Mrs. Pannell confessed this crime in the presence of a witness, Richard Schoenfeld, who is prepared to testify at an evidentiary hearing. 4
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Ms. Herzog discloses that she had a broken nose and collarbone when she was adopted. Her clothes were soiled and did not fit her. developmentally delayed. Like Petitioner, Ms. Herzog has suffered from a bi-polar disorder, and two of her children are seriously mentally ill. Ms. Herzog also corroborates the information provided by other witnesses relating to the traumatic impact of Petitioner's learning about his biological family, a few months before the homicide. Petitioner's counsel attempted to find Donna Herzog before filing the Merits She was also

Memorandum, but was unsuccessful because she was homeless at the time. She is now

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1 living in her daughter's apartment, where counsel interviewed her in June 2008. 2 3 Declaration of Tacla Machesney (Ex. 86) Tacla Machesney was instrumental in the adoptions of Petitioner and his sister,

4 Donna Herzog. In 1962, Mrs. Machesney observed Petitioner's biological sisters, Pam 5 and Roxann, when they visited their aunt (Lora Pannell's sister), who did maintenance 6 work at Mrs. Machesney's apartment complex. When Mrs. Machesney learned that child 7 welfare authorities in California had placed some of Lora Pannell's children in foster 8 homes and were actively seeking to have them adopted, she informed her parents, who 9 adopted Donna. Mrs. Machesney's declaration provides information on Lora Pannell's 10 neglect of her children, the circumstances of Petitioner's adoption, and the inadequacy of 11 Winnie and Bradley James to raise a child who had experienced a traumatic early life. 12 · 13 14 15 16 · 17 18 19 20 21 · 22 23 24 25 · 26 Mrs. Machesney recalls that Petitioner's two sisters were "obviously neglected and very needy." Their hair was uncombed and dirty. Their hair was uncombed and dirty. Their clothes were old and too big for them, and they wore sandals that had nails coming through the bottom. An Arizona couple agreed to adopt Petitioner when he was four years old, but they rejected him a few days after he came to live with them. Mrs. Machesney observes that this rejection was extremely hard on Steven, because it occurred after he had experienced neglect in his biological home and the rigors of "shuffling through the foster care system in Los Angeles." Mrs. Machesney also notes that she was familiar with Mr. and Mrs. James, her former neighbors in Arizona, and asserts that they were ill equipped to raise a troubled child with an unstable background because they were elderly and rigid, with no prior parenting experience. Mrs. Machesney describes her own parents as excellent, but adds that they experienced substantial difficulty in raising Donna, who was developmentally 5

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delayed when she was adopted, and who later became homeless and addicted to drugs. Before filing the Merits Memorandum, Petitioner's counsel diligently sought

4 information relating to the circumstances of Petitioner's adoption. These efforts 5 included: searching for persons who participated in the adoption proceedings, 6 obtaining the Maricopa County Superior Court's sealed adoption file, and requesting 7 dependency and adoption records from Los Angeles County child welfare agencies. The 8 Merits Memorandum also requested the discovery of Los Angeles County 9 dependency and adoption records, in preparation for an evidentiary hearing. 10 [Merits Memorandum at 107] Petitioner's counsel did not learn of Mrs. Machesney's 11 identity or role in Petitioner's adoption until the interview of Donna Herzog in June 12 2008. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 · · Declaration of Thomas G. Smith (Ex. 87) Thomas Smith was a heroin addict and career criminal from his teenage years until he was fifty, but has been sober for the past twenty-two years. Mr. Smith met Petitioner's father, Lester Pannell, six years before Petitioner's birth, and remained in contact with Lester Pannell until his death in 1988. Mr. Smith's declaration adds valuable information relating to Petitioner's father and the conditions in Petitioner's early childhood home. · Petitioner's father grew up in a dysfunctional home. His own father was never present, and his mother "played around" with other men while her children were home. Already a substance abuser as a teenager, Petitioner's father began "shooting heroin" four years before Petitioner's birth, soon developing what would become a life-long narcotic addiction. Petitioner's father supported his heroin addiction with an assortment of theft crimes 6

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and burglaries during Petitioner's early childhood, and resorted to violence if anyone interfered with his criminal activity. When Petitioner was a small child, his mother "kept making babies," and the family lived in the basement of a house, with all the pipes exposed, almost no furniture, and little food for the children because Lester Pannell spent all his money on heroin. Petitioner's counsel was unable to locate Mr. Smith before filing the Merits

8 Memorandum. In 2006 and 2007, counsel sought to find any persons still alive who 9 knew Petitioner's parents during Petitioner's early years. A person familiar with 10 Petitioner's family misinformed counsel in 2007 that all of Lester Pannell's associates 11 from the 1950s and 1960s were deceased. Counsel did not learn until May 2008 that Mr. 12 Smith was alive, familiar with Lester Pannell, and living in the State of Washington. Upon 13 learning this, counsel interviewed Mr. Smith as soon as possible. 14 15 Declaration of the Reverend Thomas Blackman (Ex. 88) Thomas Blackman is a faith-based substance abuse counselor. Mr. Blackman

16 married Lester Pannell's former wife, Geraldine, in 1975 and remained married to her 17 until her death in 2006. He met Lester Pannell in 1974 and interacted with him 18 frequently during the last years of Mr. Pannell's life. Mr. Blackman learned substantial 19 information relating to Mr. Pannell, both from his own observations and from Geraldine 20 Blackman's recollections. 21 · 22 23 24 · 25 26 Mr. Blackman states that Lester Pannell was neglected by his mother when he was growing up. As an example, he drank beer at home at the age of thirteen, and his mother did not care. Mr. Blackman describes Lester Pannell's violence against Geraldine, once holding her at knife-point, intending to kill her. Mr. Pannell also tried to kill a person while committing an armed residential burglary. 7

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Mr. Blackman recalls Lester Pannell telling him that Mr. Pannell's fondest dream in life was to have "an unlimited supply of drugs." Mr. Blackman observed Mr. Pannell to be a "vicious and hard-hearted" man who had no feeling for others and no capacity for bonding with his children. Counsel did not become aware of Mr. Blackman's existence until May 2008. 2. Prejudicial effect of the new declarations, together with the documents previously submitted to this court.

The evidence of lay witnesses describing a defendant's troubled or traumatic childhood experiences can play a vital role in capital sentencing by serving to humanize the defendant. Belmontes v. Ayers, 529 F. 3d 834, 864 (9th Cir. 2008). Such humanizing evidence can be critical to the determination of whether to spare the defendant's life. Id. The purpose of mitigating evidence is to ensure that the sentencing authority "treat[s] the defendant as a 'uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence." Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976), overruled on other grounds, Adkins v. Virginia, 536 U.S. 304 (2002)). In relation to Claim 15, this Court's Memorandum of Decision and Order found

18 that Petitioner's counsel failed to take any steps to investigate and present evidence of lay 19 witnesses to describe Petitioner's life history, and that this failure was clearly deficient 20 under the controlling Supreme Court case law. [Memorandum of Decision and 21 Order at 60] However, this Court disagreed with Petitioner's contention that the mitigating 22 family history evidence counsel failed to present was prejudicial to the outcome of 23 Petitioner's sentencing hearing. [Id. at 60-63, 68-69] This Court gave full consideration to 24 the documentary evidence Petitioner submitted, but nevertheless denied Claim 15, 25 concluding that Petitioner had "not alleged facts which, if proved, would entitle him to 26 relief." [Id. at 71] 8

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Petitioner respectfully disagrees. The documents offered with the Merits

2 Memorandum demonstrate that Petitioner suffered from a turbulent early childhood 3 in the home of his biological parents; was shuffled through the foster care system in 4 California before his adoption; was an emotionally damaged boy when he arrived 5 in Arizona at age four; was teased mercilessly by schoolmates; received no 6 professional assistance to cope with his emotional problems when he was growing 7 up; self-medicated with illicit drugs as an adolescent, before dropping out of high 8 school; developed a serious mood disorder as a young adult; learned the sordid 9 details of his early childhood history only months before the homicide (including 10 the homosexual abuse endured by his younger brother); and decomposed in 11 the months leading to the homicide, exacerbating his existing mood disorder with 12 uncontrollable anger and vastly increased substance abuse. 13 In light of the additional facts in the new declarations proffered with this

14 Motion to Alter or Amend, Petitioner requests reconsideration of the Court's 15 denial of evidentiary development and dismissal of Claim 15. These facts relate to 16 the prejudicial effects of both child abuse and child neglect. Specifically: 17 (1) This Court noted in its Memorandum of Decision and Order that

18 Petitioner had submitted no evidence from any source indicating that he had been 19 abused as a child. [Id. at 61] This is no longer true. Lora Pannell's declaration 20 provides direct evidence of such abuse. Attempting to smother a crying child, with 21 the intent to kill, is compelling evidence of terrifying abuse. [Ex. 84 at para. 14] 22 Donna Herzog's broken nose and collarbone at the time of her adoption also 23 suggests that Petitioner lived in an abusive home. [Ex. 85 at para. 2] The fact that 24 both Steven and Donna were in the foster care system, while their sisters Pam and 25 Roxann were not [Ex. 86 at paras. 7-8], supports this conclusion. 26 (2) This Court's Memorandum of Decision and Order gave little weight to 9

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1 the evidence Petitioner submitted relating to the neglectful conditions in his early 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 childhood home, commenting that Petitioner had shown only that Lora Pannell "kept an unclean house, abused drugs, and brought home abusive, alcoholic men." [Memorandum of Decision and Order at 62] The new declarations submitted with this motion paint a far grimmer picture - a picture of substantial child neglect. Both Lora and Lester Pannell were totally unable to raise children, having been abused or neglected themselves in their youth. [Ex. 84 at paras. 2-3; Ex. 87 at para. 2; Ex. 88 at para. 8] Nevertheless, Lora began having babies as a teenager (even before she met Lester), and continued to give birth at the rate almost one child per year. [Ex. 84 at paras. 6-7, 12] Lester had no use for the children, deprived them of food by spending available money on narcotics, and injected himself with heroin in their presence. [Ex. 84 at para. 9; Ex. 87 at para. 8] The family lived in a basement apartment with exposed pipes and almost no furniture. [Ex. 87 at para. 8] The children's hair was uncombed and dirty, their clothes were old and too big for them, and nails protruded through their sandals. [Ex. 85 at para. 2; Ex. 86 at para. 5] This picture of abuse and neglect explains how Steven became the overweight,

17 fidgety, frightened bed-wetting, and constantly teased little boy described by Winnie 18 James, Lauretta Pool, James Stepp, Kyle Cooper and Charles Beaulieu. And, contrary to 19 this Court's opinion, Winnie and Bradley James - a rigid, elderly couple - were ill 20 equipped to raise a child with such a traumatic early childhood. [Ex. 86 at para. 13] 21 Winnie James acknowledged this herself in the several statements she gave to post22 conviction counsel. [Ex. 30 at para. 3; Ex. 32 at 2] Bradley James repeatedly refused to 23 seek professional help for Steven, despite the obvious signs of his son's emotional 24 distress. [Ex. 32 at 1-2] 25 If counsel had presented this life story to the sentencing judge, he would have

26 humanized Petitioner, softening the judge's image of the hard-edged crime Petitioner 10

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committed. Additionally, evidence of Petitioner's horrible early life history would have given Judge Moeller an opportunity to appreciate the significance of Petitioner's trip to California in 1981 to meet his family of origin. Although the presentence report mentioned that the journey to California had a "devastating effect" on Petitioner, the reasons for the devastation were never explained to the court. As a consequence, the statements in the presentence report had no weight as mitigation. Petitioner asks the Court to expand the record to include each of the attached declarations (as well as the exhibits submitted with the Merits Memorandum and Reply), grant Petitioner an evidentiary hearing, and grant the Amended Petition for Writ of Habeas Corpus. Dated this 29th day of July, 2008. Gary T. Lowenthal 1490 Camino Corrales Santa Fe, NM 87505
JENNINGS, STROUSS & SALMON, P.L.C.

Douglas Gerlach

The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004-2385

By /s/ Douglas Gerlach Attorneys for Petitioner

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CERTIFICATE OF SERVICE

I hereby certify that on July 29, 2008, I electronically transmitted this Motion 2 to Alter or Amend Judgment to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF 3 registrants: 4 Robert John Gorman Office of the Attorney General 5 Criminal Appeals Section 400 W. Congress, Suite 315 6 Tucson, AZ 85701-1367 [email protected] 7 Attorney for Respondents 8 and copy mailed to: 9 The Honorable Neil V. Wake Judge, United States District Court 10 United States District Court 401 West Washington 11 Phoenix, AZ 85003 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12 By /s/ Denise L. Christiansen

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