Free Reply - District Court of Arizona - Arizona

Gary T. Lowenthal ­ California Bar No. 46923 1 [email protected] 1490 Camino Corrales 2 Santa Fe, NM 87505 3 Douglas Gerlach ­ Arizona Bar No. 06869 [email protected] 4 JENNINGS, STROUSS & SALMON, P.L.C. A Professional Limited Liability Company 5 The Collier Center, 11th Floor 201 E. Washington Street 6 Phoenix, Arizona 85004-2385 Telephone: (602) 262-5911 7 Attorneys for Petitioner 8 9 10 11 12 13 14 15 16 vs. DORA B. SCHRIRO, et al., Respondents. This Reply addresses the Respondents' contentions with respect to Petitioner's Claim 11 The principal flaw in the Response to Petitioner's Opening Memorandum re: STEVEN CRAIG JAMES, Petitioner, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV 00-1118-PHX-NVW DEATH PENALTY CASE REPLY IN SUPPORT OF THE MERITS OF PETITIONER'S CLAIMS

17 Claims 1-6, 8, 10, 12 and 15. 18 19

20 Merits of Claims (the "Response") is that it relies on a mischaracterization of the 21 nature and significance of the oral agreement between Martin Norton, a witness 22 indispensable to the prosecution of Steven James, and the State. [See Response at 23 12, 14] The Response erroneously contends that the plea agreement [Ex. 4], which 24 25 Unless indicated otherwise, all references to exhibits are to those exhibits that were submitted with Petitioner's Opening Memorandum Re: Merits of Claims ("Merits 26 Memorandum").
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1 was written after Norton gave a recorded statement to the prosecutor [Ex. 3], "fully 2 encompassed" the oral understanding that preceded the tape recorded interview. 3 Correctly understood, the significance of the oral agreement is that it explains why 4 Norton agreed to come forward in the first place and meet with the prosecutor. That 5 is what prompted Judge Strand to send the case back to state court for an evidentiary 6 hearing on this issue. [Dct. 19, Exhibits, Ex. 1 at 12-13] 7 The Response's assertion (at 13) that the juvenile prosecutors "all swore out 8 affidavits denying any agreement had been made prior to Norton giving his statement 9 to the trial prosecutor. . ." is both unsupported by any evidence in the record and is 10 incorrect. Contrary to what the Response urges, Warren Smoot, the head prosecutor 11 in juvenile court, conceded in 1993 that he did not recall much about Norton's case 12 because of the time that had passed. [Dct. 41 (Petitioner's Traverse) at Ex. 32 and 13 attached Aff. of James S. Park, paras. 6-8] Norton's lawyer, Robert Wertsching, did 14 recall such an agreement with the "head prosecutor" in juvenile court, i.e., Smoot. 15 [Ex. 2, para. 5] 16 The Response erroneously suggests (at 13 n.1) that the Merits Memorandum 17 takes a sentence of the Wertsching affidavit [Ex. 2] out of context. Five paragraphs 18 of that affidavit (paras. 3-7) summarize a series of events that took place over a few 19 weeks. Further, the fact that the agreement provides a reasonable explanation for 20 Norton's decision to come forward and implicate himself and others should not be 21 underestimated. As Judge Strand concluded, an evidentiary hearing is necessary for 22 Mr. James to more fully develop the record with respect to those events and their 23 significance. [See Dct. 19, Exhibits, Ex. 1 at 12-13] 24 Despite what Judge Strand identified as a problematic concern, the state court 25 gave it short shrift. Superior Court Judge Hendrix found that the oral agreement was 26 entitled to minimal weight (at best) because it was "simply" or "only" impeachment 2
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1 evidence. [Response, Ex. A at 3-4] Brady and its progeny, however, deal with the 2 suppression of exculpatory evidence (or use of false evidence) and almost always 3 involve "impeachment evidence" (e.g., a prosecution witness's prior record, an 4 undisclosed leniency agreement, or a prior inconsistent statement). 5 What is critically important here, and what Judge Strand sensed but Judge 6 Hendrix and the Response disregarded, is that before Norton's statement to the 7 prosecutor [Ex. 3], he had given numerous conflicting statements, making a 8 prosecution of Mr. James extremely problematic. At the same time, Norton's 9 counsel had no leverage to keep Norton in juvenile court. [See Ex. 2] Judge Strand 10 recognized that the oral agreement giving Norton the opportunity to remain in 11 juvenile court is a reasonable, if not the most reasonable, explanation for Norton 12 coming forward, and therefore, Judge Stand recommended that an evidentiary 13 hearing be held to allow Mr. James to develop the record on this critical issue. [Dct. 14 19, Exhibits, Ex. 1 at 12-13] 15 It should also be remembered that after Norton was arrested, he was 16 interrogated numerous times and gave several conflicting accounts of the events 17 leading to and surrounding the murder. A summary of those statements appears on 18 pp. 8-9 of Mr. James' habeas petition. Norton mentioned Mr. James in only some, 19 but not all, of those statements, and he never gave an eye-witness account of the 20 homicide that identified Mr. James as one of the perpetrators until a detective 21 interviewed him on November 26, one week after his arrest. Until that confession, 22 none of Norton's statements would have assisted the prosecution of Mr. James. The 23 state obtained a statement from Norton that it could use to prosecute Mr. James only 24 after the State filed a motion to transfer Norton to adult court. According to 25 Wertsching, he recognized immediately that he had an opportunity (and obligation to 26 Norton) to keep Norton in juvenile court (in essence, guaranteeing him no more than 3
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1 a three year sentence), by having him cooperate against Mr. James (and Lawrence 2 Libberton, another adult). [Ex. 2, para. 2] Following several conversations between 3 Wertsching and Smoot, the prosecution agreed to keep Norton's case in juvenile 4 court if Norton first talked to the prosecutor, Myrna Parker, and then testified against 5 Mr. James and Libberton consistent with his statement to Parker. [Ex. 2, paras. 3-8] 6 Moreover, Norton later admitted being afraid and, thus, "did my best and tried to say 7 whatever [the prosecutor] wanted to hear." [Ex. 11, para. 38] By requiring 8 testimony consistent with his statement to Parker, the oral agreement virtually locked 9 the sole witness indispensable to a conviction of Mr. James into testimony that would 10 accomplish that conviction. That is why Judge Strand found it to be persuasive 11 impeachment, and why Judge Hendrix's findings of fact, determined without the 12 benefit of a hearing, were unreasonable. 13 Additionally, the Response's assertion that the oral agreement with Norton 14 was inconsequential also relies on a mischaracterization of that agreement. Contrary 15 to the Response's contention, Norton was required to testify at James's trial, not 16 "truthfully," but "consistently" with his tape-recorded statement to the prosecutor. 17 [Ex. 2 para. 5; Ex. 4 at 1] 18 Finally, the Response fails to distinguish between the trial and sentencing 19 phases. The aggravating factor of heinous, cruel, or depraved was entirely dependent 20 on Norton's testimony. The absence of that aggravating factor would have precluded 21 the possibility of a sentence of death. Even if one assumes that the failure to disclose 22 the oral agreement did not affect the outcome of the trial, the same cannot be said of 23 sentencing. 24 25 Claim 2 The Response's contentions with respect to Claim Two reflect a fundamental 4
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26 misunderstanding of the events surrounding the oral agreement with Norton,

1 Norton's statement implicating Mr. James, and the plea agreement itself. There can 2 be no dispute that Norton specifically denied in his trial testimony that any "plea 3 agreement" had been made before he gave a statement to the prosecutor, Myrna 4 Parker. [R.T. 9/28/82 at 810-11] Norton however, through his lawyer, did have a 5 previous agreement with the State, and that agreement was concealed from the jury 6 when the prosecution was eliciting testimony from Norton. Moreover, not only was 7 Norton allowed to deny that he had "any kind of plea agreement" [R.T. 9/28/82 at 8 810-11 (emphasis added)], but in closing argument the State, through the same 9 prosecutor who led Norton through his testimony, made matters even worse by 10 insisting that Norton was given "no promises, nothing," even though he had [R.T. 11 10/4/82 at 1269]. 12 It should also be noted that the Response's treatment of Claim Two relies on 13 the same mischaracterization that afflicts its treatment of Claim One. Contrary to 14 what the Response urges (at 20), Norton was required to testify "consistently" with 15 his previous statement, and not "truthfully." [Ex. 2, para. 5; see also Ex. 4 at 1] 16 17 Claim 3 Although the Merits Memorandum does not identify Supreme Court precedent

18 dealing with consistency agreements, it is settled law that the State must not allow 19 (much less require) witnesses to provide false testimony. See e.g., Napue v. Illinois, 20 360 U.S. 264 (1959). Here, the Prosecution required Norton to testify consistent 21 with a statement that the Response now concedes (at 24) was untrue. Requiring a 22 witness to testify consistent with a false statement is, by any reasonable standard, the 23 same as requiring a witness to give false testimony. Again, an evidentiary hearing 24 will provide an opportunity for Norton to explain what he has previously admitted, to 25 wit, he was to tell the prosecutor what she wanted to hear and then testify consistent 26 with that. [Ex. 11, para. 38; Ex. 2, para. 5] 5
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Claim 4 The prosecution in this case did precisely what the Supreme Court said could The Response's

3 not be done in United States v. Berger, 295 U.S. 78 (1935).

4 suggestion (at 29) that Claim Four fails because Mr. James's attorney (Terry 5 Pillinger) did not object to the prosecutor's vouching should be disregarded. The 6 Arizona Supreme Court decided this issue on the merits, without reference to the lack 7 of an objection in the trial court. State v. James, 141 Ariz. 141, 146, 685 P.2d 1293, 8 1298 (1984). 9 10 Claims 5-6 The Response's contentions regarding Claims 5-6 are both addressed and

11 refuted by what is said in the Merits Memorandum (at 21-25), and we will not repeat 12 here what is said there. 13 14 Claim 8 The Response concedes (at 38), and the Arizona Supreme Court

15 acknowledged on direct appeal of Mr. James's conviction that the voluntariness 16 hearing in this case failed to comply with the requirements of Oregon v. Bradshaw, 17 462 U.S. 1039 (1983). Nevertheless, the Arizona Supreme Court declined to return 18 the case to the trial court for a proper hearing. As explained in the Merits 19 Memorandum (at 25-29), the Court's failure to do so constituted a violation of 20 clearly established United States Supreme Court precedent. 21 22 23 Claims 10, 12 and 15 Standard of Review The Response asserts that AEDPA requires this Court to follow the deferential

24 standard of 28 U.S.C. § 2254(d)(1) when reviewing Claims 10, 12 and 15 (the 25 ineffective assistance of counsel claims). [Response at 9] Quoting from Bell v. 26 Cone, 535 U.S. 685, 698-99 (2002), Respondents argue that for Mr. James to 6
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1 succeed: 2 3 4 5 6 7 [Id. at 9-10] 8 In making these assertions, the Response erroneously fails to acknowledge the [H]e must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under sec. 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.

9 procedural status of these claims. Respondents assume that the state court decided 10 Mr. James's ineffective assistance of counsel claims on their merits. In fact, the state 11 court never reached the merits of Claims 10, 12, and 15, instead disposing of them, 12 twice, on an independent state ground ­ procedural default. [Merits Memorandum, 13 Ex. 13; Response, Ex. A at 27] This Court ruled in 2006 that the State's procedural 14 rule barring Mr. James's ineffective assistance of counsel claims was not "adequate," 15 because it was neither firmly established nor regularly followed at the time of the 16 purported default. [Dct. No. 79, Order Re: Procedural Status of Claims at 14-15] 17 By ignoring the procedural status of these claims, Respondents incorrectly cite

18 the applicability of AEDPA's heightened standards of review. These standards apply 19 only to federal claims that have been decided "on the merits" in state court. 28 20 U.S.C. § 2254(d). The Ninth Circuit has repeatedly held that de novo review (rather 21 than the deferential standards of the AEDPA) applies to claims not decided on the 22 merits in state court. See, e.g., Lewis v. Mayle, 391 F. 3d 989, 996 (9th Cir. 2004); 23 Nulph v. Cook, 333 F. 3d 1052, 1056 (9th Cir. 2003). The law in other federal 24 circuits is the same. McFarland v. Yukins, 356 F. 3d 688, 713 (6th Cir. 2004); Drake 25 v. Portuondo, 321 F. 3d 338, 343 (2d Cir. 2003). 26 7
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Claims 10 and 12: Merits This Reply discusses these claims together because the Response combines

3 them and they are factually related. Both claims involve the ineffective assistance of 4 counsel that Terry Pillinger provided to Mr. James during the guilt phase, based on 5 Pillinger's failure to investigate Mr. James's only available legal defense (that he was 6 under the influence of drugs at the time of the offense) and Pillinger's refusal to 7 permit Mr. James to testify about his intoxication. Instead, Pillinger insisted on 8 presenting a duress defense at Mr. James's trial. 9 The Response tries to characterize Pillinger's defense theory as one of 10 "innocence," rather than duress. [Response at 44:8-17; 46:11-12] This ignores how 11 Pillinger himself repeatedly characterized the defense: (1) in a letter he sent to the 12 prosecutor before trial, providing notice of his intended defenses [Ex. 18]; (2) in his 13 unsuccessful motion for jury instructions specifying duress as a defense [Ex. 19]; (3) 14 in his opening statement to the jury [R.T. 9/20/82 at 77:22-78:2]; and (4) in his 15 closing argument, delivered after the court had rejected his proposed jury instructions 16 on duress [R.T. 10/4/82, 1239:16-25]. 18 argument: 19 20 21 22 23 Did you notice Mr. Pillinger stood up here, and I counted at least four times, you may have counted more. He said, `If you've got a gun held to your head you're not going to act this way or that way or some other way.' And his client had the gun held to his head. . . . Duress, coercion and force, whatever you call it, is not a defense exactly as Mr. Pillinger stood up here and told you. And it does not erase the crime. It does not. It is another attempt to mislead you. The prosecutor, Myrna Parker, clearly 17 understood Pillinger's defense as one of duress, commenting in her own closing

24 [R.T. 10/4/82 at 1266:10-21] Even the Response itself slips up by referring to the 25 statement underlying Pillinger's defense as one of duress. [Response at 44: 5-6] 26 Respondents have good reason to try to obfuscate Pillinger's actual theory of 8
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1 defense. The Response's effort to characterize Pillinger's duress defense as a claim 2 of "innocence" is significant for this Court's assessment of Strickland's "deficient 3 performance" prong. Pillinger's decision not to investigate or present an 4 intoxication/diminished capacity defense was constitutionally deficient, largely 5 because the defense he chose in its stead (whether by ignorance or lack of 6 preparation) was legally impermissible. There is no escaping a fundamental tenet of 7 criminal law, known by every first year law student: courts never allow duress to be 8 used as a defense to a homicide charge. See A.R.S. §13-412(C); State v. Encinas, 132 9 Ariz. 493, 647 P. 2d 624, 627 (1982). 10 The Response asserts that Mr. James "now" suggests that 11 intoxication/diminished capacity would have been a better defense than duress. 12 Response at 45:25-26. This ignores Pillinger's refusal, before trial, to discuss a 13 diminished capacity defense with his client. In fact, Mr. James always wanted to 14 present this defense. In his Supplemental Petition for Post-Conviction Relief filed in 15 1985, Mr. James described his pre-trial interactions with Pillinger: 16 17 18 19 20 21 22 [Ex. 23 at 2] 23 The Response tries to counter Mr. James's assertions with an affidavit Terry 24 Pillinger gave to counsel for the State in March, 1985. In that affidavit, Pillinger 25 claimed he did not learn that Mr. James had ingested drugs on the night of the crimes 26 until Mr. James was about to testify at trial, when Mr. James informed him for the 9
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Had Mr. Pillinger spent additional time in discussing this case with me I believe he would have been able to understand and appreciate the fact that at the time the incident in question took place and thereafter, I was under the influence of drugs and therefore my ability to form or possess the culpable mental state . . . of first degree murder was open to serious question. On several occasions I attempted to discuss this matter with Mr. Pillinger as a possible defense but he was unwilling to spend the time to listen to me.

1 first time that he had overdosed on LSD. [Response, Ex. C at 1] 2 Pillinger's assertion is totally devoid of credibility. The record shows that he 3 was aware of the following information, long before Mr. James's trial: 4 · 5 6 7 8 9 10 11 12 · 13 14 15 16 17 18 19 20 · 21 22 23 24 25 26 · Martin Norton, the State's sole eye-witness, told the prosecutor in a taperecorded interview nine months before trial that: (1) Mr. James was "heavily into drugs, marijuana, cocaine, heroin;" (2) Mr. James was already becoming intoxicated when Norton left the trailer a few hours before the homicide incident; and (3) later, after Norton returned with the victim, Mr. James was "drunk" and "high too" during the drive to the mine shaft. [Ex. 3 at 4, 6 and 14] The Response concedes that Norton's pre-trial statement was timely

disclosed to defense counsel. [Response at 13:9-11] Daniel McIntosh, another key prosecution witness, gave a deposition nine months before Mr. James's trial, in the presence of Mr. James's counsel (Glenn Johnson, Pillinger's predecessor). As quoted by the Response itself, McIntosh testified at his pre-trial deposition that Mr. James was drinking heavily and smoking a virulent form of marijuana while McIntosh was in Mr. James's trailer shortly before the homicide. [Response at 32:6 - 33:18]

Significantly, Pillinger's own notes indicate that he reviewed McIntosh's deposition approximately two months before trial. [Ex. 29 at 7] When Mr. James was examined in March 1981 to determine his competency to stand trial, he told the examining psychiatrist that he was "tripping" on LSD at the time of the crimes. [Ex. 17 at 1] In a motion Pillinger filed two months before trial, he acknowledged that he had read the psychiatrist's competency evaluation, which explicitly referred to Mr. James's ingestion of LSD. [Ex. 54 at 2] Glenn Johnson, Pillinger's predecessor as Mr. James's trial counsel, stated in 10
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an affidavit that he recalled being aware of Mr. James's intoxication at the time of the crimes, and that "drugs and alcohol permeated the case." [Ex. 16 at 1] Pillinger's notes indicate that after he took over Mr. James's

representation, he went to Glenn Johnson's office on two occasions, had at least eight separate telephone conferences with Johnson, consulted with Johnson at an undisclosed location, and had an "extensive conference" with Johnson on another occasion, discussing Mr. James's mental state at the time of the crimes. [Ex. 29 at 2-5] Shortly after he assumed Mr. James's representation, Pillinger sent a letter to the prosecutor, informing her of his intended defenses. In this letter, he typed the words "Duress" and "Voluntary Intoxication" [Ex. 18], demonstrating that he was aware, soon after entering the case, of Mr. James's ingestion of mind altering substances immediately before the events leading to the homicide. This evidence directly contradicts Pillinger's 1985 affidavit, leaving little

15 doubt that Pillinger was either remarkably forgetful or purposely disingenuous. The 16 evidence also supports a strong inference that Mr. James was very willing to discuss 17 his intoxication on the night of the crimes, especially with his lawyer.2 18 Pillinger's 1985 affidavit includes a statement that even if he had been aware 19 from the outset of Mr. James's ingestion of drugs, "I would not have utilized that as a 20 21 To support Pillinger's assertion that he was unaware before trial of his client's 22 ingestion of drugs, the Response relies on an undated handwritten statement by Mr. James. [Response at 43:9-16] The handwritten statement describes Mr. James's 23 version of the crimes without mentioning drugs. However, it begins around midnight on the night of the homicide, after Mr. James has already ingested drugs and alcohol. It is also consistent with Mr. James's repeated assertions in both state and federal 24 post-conviction proceedings that Pillinger did not want him to mention his drug use, 25 and Pillinger himself supports that point in his affidavit, with regard to Mr. James's trial testimony. If, as Pillinger states in his affidavit, Mr. James wrote the statement 26 at Pillinger's request, it is easy to understand why it begins after Mr. James has already ingested drugs and alcohol. 11
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1 defense." [Response, Ex. C at 1] This comment clearly suggests that Pillinger 2 believed that he, not Mr. James, had the right to decide which defense to use. It goes 3 to the heart of Claim 12, in which Mr. James alleges that Pillinger refused to permit 4 him to testify about his drug use. Pillinger denies this allegation in his 1985 5 affidavit, but he also concedes that he strongly discouraged Mr. James from testifying 6 about drugs. This conflict can best be resolved by an evidentiary hearing at which 7 both Terry Pillinger and Steven James testify. 8 The Response erroneously accepts the "strategic" reasons Pillinger alleges in 9 his 1985 affidavit for rejecting an intoxication/diminished capacity defense: (1) that it 10 was inconsistent with the defense Pillinger had announced in his opening statement; 11 (2) that it would be unsuccessful because Mr. James had an excellent recall of the 12 events and did not appear to act in an intoxicated manner on the night of the crimes; 13 and (3) that it would have alienated the jury. [Response at 46-47] However, these 14 after-the-fact rationales do not hold up under scrutiny. 15 There are at least three flaws in the argument that Pillinger reasonably rejected 16 diminished capacity evidence because it was "inconsistent" with the defense he had 17 announced in his opening statement. First, the argument assumes that Pillinger did 18 not learn about Mr. James's ingestion of large amounts of drugs until the middle of 19 the trial, when Mr. James was about to testify. As has already been shown, this is 20 simply incorrect and possibly dishonest. Second, the "announced" defense in 21 Pillinger's opening statement ­ duress ­ was contrary to fundamental criminal law 22 and doomed to fail. Third, as noted in the Merits Memorandum, there is nothing 23 inconsistent about being under the influence of drugs and also coerced into criminal 24 conduct. [Merits Memorandum at 34:2-6] 25 This Court should also reject the Response's contention that Pillinger made a 12
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26 reasoned strategic decision in choosing duress over diminished capacity on the

1 rationale that diminished capacity would likely have failed.

Regardless of the

2 presence of evidence suggesting that Mr. James's drugged condition was not 3 obvious, Pillinger's alternative theory of defense, duress, was impermissible under 4 settled law. Thus, by rejecting diminished capacity, Pillinger was left with no 5 defense at all. Any reasonable lawyer would know that even a small chance of 6 success is better than none. 7 Additionally, the deference this Court owes to Pillinger's alleged strategic 8 judgments is "defined . . . in terms of the adequacy of the investigation supporting 9 those judgments." Wiggins v. Smith, 539 U.S. 510, 521 (2003). Here, Pillinger either 10 forgot or did not appreciate the significance of Norton's and McIntosh's pre-trial 11 statements relating to Mr. James's drug use, and the record indicates that he made no 12 inquiries of these witnesses to develop information concerning the influence of drugs 13 on Mr. James on the night of the homicide. As discussed in the Merits 14 Memorandum, both Norton and McIntosh later gave statements to Libberton's 15 counsel, detailing Mr. James's drug use immediately preceding the homicide in far 16 greater detail than they had in their pre-trial statements. McIntosh explicitly referred 17 to Mr. James ingesting LSD. [Merits Memorandum, 36:3-8] Pillinger also failed to 18 interview Ross Waller and Dan Severance, the other two persons who witnessed Mr. 19 James's drug use on the night of the homicide, and both would have supported a 20 diminished capacity defense. [See Merits Memorandum at 36:8-14 and Exs. 21, 22] 21 A determination that a diminished capacity defense would fail, even if it were 22 supported by the State's own witnesses and the only other persons to observe Mr. 23 James on the night of the crimes, would be pure conjecture. All we can say with 24 confidence is that Pillinger rejected the defense without investigation. 25 Pillinger's rationalization, echoed in the Response, that an intoxication 13
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26 defense would "alienate" the jury, also fails to justify his constitutionally deficient

1 performance. A frank admission by Mr. James that he was under the influence of 2 drugs at the time of the crimes would not likely have been antagonistic to many of 3 the jurors, especially when the alternative ­ duress ­ was a non-defense with no 4 chance of success. 5 The "don't alienate the jury" argument also fails to account for a critically 6 important circumstance: Mr. James faced a capital murder charge, and the evidence 7 at his trial in 1982 was presented to two fact-finders ­ the jury and the judge, who 8 had sole responsibility for imposing Mr. James's sentence. Unlike juries, Arizona 9 judges in 1982 were familiar with the unfortunate reality that criminal conduct is 10 commonly associated with drug use, and that the influence of drugs can be an 11 important mitigating factor in sentencing. By failing to investigate the effect of drugs 12 on Mr. James's conduct, and by failing to present the testimony of not only Mr. 13 James, but also Norton, McIntosh, Ross Waller, Dan Severance and an expert on the 14 effects of large doses of LSD and marijuana on one's judgment, Pillinger lost the 15 opportunity to prepare the judge for the mitigation case he would present a month 16 later. The judge discredited Pillinger's claim at sentencing that Mr. James was under 17 the influence of drugs at the time of the homicide, noting that Pillinger had presented 18 no such evidence at trial. [See discussion of Claim 15 below] Capital defense 19 lawyers in the early 1980s knew the value of using the guilt phase to preview their 20 mitigation evidence, as well as the danger of shifting radically from one defense to 21 another between guilt and sentencing.3 23 See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 NYU L. REV. 299, 330, 332 (1983) (emphasizing importance of 25 guilt phase evidence that supported sentencing phase mitigation evidence). 24 26
4 3

Pillinger's overlooking of diminished

22 capacity botched both phases of Mr. James's case.4

The Response does not attempt to rebut the Merits Memorandum's arguments on Claims 10 and 12 relating to Strickland's prejudice prong. Therefore, there is no 14
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Claim 15: Merits This claim relates to ineffective assistance of counsel at sentencing. Based on

3 Mr. James's state court pleadings, the Merits Memorandum divides the allegations 4 set forth in the claim into four factual subsets: (1) failure to interview witnesses 5 familiar with Mr. James's life history and to develop mitigating family background 6 evidence; (2) failure to consult with Mr. James sufficiently to uncover or explore the 7 facts mitigating against a death sentence; (3) failure to investigate and develop 8 mitigating evidence relating to the effects of drugs and alcohol on Mr. James's 9 mental state at the time of the crimes; and (4) failure to investigate and develop 10 mitigating evidence relating to Mr. James's mental disorder at the time of the crimes. 11 [Merits Memorandum at 44, 68, 70, 75] Respondents dispute the merits of three of 12 these four factual subsets of ineffective representation. [Response at 47-54] This 13 Reply discusses the Response's arguments relating to the merits of Claim 15, 14 addressing both of Strickland's prongs, following the four subsets of ineffective 15 representation set forth in both the Merits Memorandum and the Response. 16 Respondents choose not to argue that any of the four subsets were 17 unexhausted in state court. Additionally, Respondents do not object any of Mr. 18 James's specific allegations within each subset as not having been properly 19 exhausted in state court. Instead, the Response discusses the factual exhaustion 20 requirement of § 2254(b)(1)(A) solely by providing a basic overview of the rules, 21 never questioning the application of those rules to the facts included in Claim 15 of 22 Mr. James's habeas petition and Merits Memorandum. [Response at 12:4-7, 56:1023 57:13] Compare Soffar v. Dretke, 368 F.3d 441, 461­62 (5th Cir. 2004) (noting that 24 25 need to address prejudice in this Reply. Additionally, this Reply discusses 26 evidentiary development of Clams 10 and 12 together with Claim 15, after discussing the merits of Claim 15. 15
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1 the state "did not contest that [petitioner] sufficiently exhausted his available state 2 remedies"). This Reply nevertheless discusses the exhaustion of certain factual 3 allegations, recognizing that the Court might appreciate briefing on exhaustion, even 4 though the Response does not raise the issue with any specificity. 5 6 7 8 1. Strickland's deficient performance prong. A. Terry Pillinger's failure to interview witnesses familiar with Mr. James's life history or to develop mitigating family background evidence.

In his 1985 Rule 32 petition in state court, Mr. James identified several

9 mitigation witnesses Pillinger failed to interview. [Ex. 23 at 4] The Response does 10 not question that Pillinger failed to interview four of these witnesses (Jim Stepp, Don 11 Thorp, Eva Colderon and Reverend Richard Jackson). [Response at 49:1-9]

12 Pillinger himself, in his 1985 affidavit, concedes that he did not interview these 13 witnesses, finding nothing in his notes or his recollection indicating that he had even 14 heard the names of at least three of them (Stepp, Thorp and Colderon). [Response, 15 Ex. C at 2] Pillinger's affidavit also indicates that he "spoke" with a minister, but he 16 does not know if it was Reverend Jackson. [Id.] Indeed, none of the four witnesses' 17 names appear in Pillinger's detailed (nineteen page, single-spaced) record of how he 18 spent his time representing Mr. James. [Ex. 29] Nor does Pillinger's detailed record 19 of activities mention an interview with a minister. If Pillinger "spoke" with a

20 minister, their conversation was certainly not related to an investigation of mitigation 21 evidence, and Pillinger makes no claim to the contrary in his affidavit. 22 The Response does not attempt to rationalize Pillinger's failure to interview

23 these witnesses, instead merely noting that Stepp and Thorp made comments on Mr. 24 James's behalf appearing in the pre-sentence report, and that Colderon declined to 25 make a statement to the probation officer preparing the report. [Response at 49:1-9] 26 However, the inclusion of statements by Stepp and Thorp in the pre-sentence report 16
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1 does not blunt the prejudicial impact of Pillinger's failure to interview them. Their 2 statements to the probation officer did not include the substantial mitigation 3 information contained in Merits Memorandum exhibits 25 and 26, or the significant 4 leads to other mitigation in those exhibits. The brief comments of Stepp and Thorp 5 in the pre-sentence report provided little specificity for the judge, and Pillinger never 6 even mentioned their remarks to support his request for leniency, either at the 7 mitigation hearing or in his closing argument ten days later. Consequently, the judge 8 could fairly assume that if either witness knew anything of substance regarding 9 mitigation, Pillinger would have brought it to his attention. 10 Without question, the comments of Stepp and Thorp in the presentence report 11 put Pillinger on notice of the essential need to interview them. The two witnesses 12 (both of whom knew Mr. James since he had been adopted at the age of four) stated 13 to the probation officer that Mr. James's involvement in the homicide resulted from 14 "irrationality," "excessive drug usage," a "rebellious" childhood, and a "strict 15 disciplinarian" father who did not understand how to demonstrate love for Mr. 16 James.5 [Ex. 28 at 5-6] 18 1338: 11-15] 19 This scenario is precisely what occurred in Wiggins, the centerpiece of the 20 Supreme Court's jurisprudence on ineffective assistance of counsel in capital 21 sentencing. According to Wiggins, there is no legitimate excuse for the failure of a 22 defense lawyer to investigate mitigation evidence in public records when the lawyer 23 The Response quotes a highly ambiguous statement Eva Colderon made to the probation officer, implying that Ms. Colderon was upset by Mr. James's crime 25 (although this is not the only explanation for her comment). However, in no way does this indicate that she was unaware of Mr. James's personal and family history, 26 or that she would not have provided mitigating information to defense counsel if he had made the effort to interview her. 17 24
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5

Additionally, the record unambiguously indicates that

17 Pillinger read the pre-sentence report before the mitigation hearing. [R.T. 11/2/82,

1 possesses and reads the records, and simple inquiries based on the records may lead 2 to much more substantial mitigation. Wiggins, 539 U.S. at 523-525 (failure to 3 investigate mitigating facts in a pre-sentence report and social service records in 4 counsel's possession constituted deficient performance). The Ninth Circuit has 5 repeatedly followed this rationale, finding constitutionally ineffective representation 6 when counsel in a capital sentencing proceeding fails to investigate "tantalizing 7 indications in the record" suggesting that mitigating evidence may be available. 8 Stankewitz v. Woodford, 365 F. 3d 706, 719-720 (9th Cir. 2004); see also Lambright 9 v. Schriro, 490 F. 3d 1103, 1118 (9th Cir. 2007), cert. denied, 128 S. Ct. 882 (2008) 10 (failure to interview defendant's family and friends when counsel became aware of a 11 possible history of mental illness); Summerlin v. Schriro, 427 F. 3d 623, 632 (9th Cir. 12 2005) (en banc) (failure to obtain readily available mitigation evidence after being 13 told of its existence by client's prior defense counsel); Ainsworth v. Woodford, 268 14 F.3d 868, 874 (9th Cir. 2001) (failure to investigate mitigating information appearing 15 in a pre-sentence report); Wallace v. Stewart, 184 F. 3d 1112, 1115-16 (9th Cir. 16 1999) (failure to contact known and willing witnesses). 17 Petitioner has provided an affidavit and two declarations to this Court setting 18 forth the mitigation information Stepp, Thorp and Jackson would have provided if 19 Pillinger had interviewed them. [Exs. 25-27] The Response does not even attempt to 20 contest the inadequacy of Pillinger's failure to unearth the powerful mitigation 21 evidence these witnesses were prepared to provide: (1) that Mr. James was an 22 emotionally troubled child at the time of his adoption, suggesting preexisting 23 problems; (2) that Mr. James's emotional and behavioral problems continued through 24 grade school; (3) that he fell apart in high school, becoming a chronic truant and drug 25 abuser; (4) that his mental health as a young adult progressively deteriorated; (5) that 26 his troubled marriage to Marna Hulgren ended a year before the homicide; (6) that he 18
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1 traveled to California to meet his biological family a few months before the 2 homicide; and (7) that he became emotionally dysfunctional and was chronically 3 under the influence of drugs after he learned about his horrible childhood from his 4 biological family. [Merits Memorandum at 48-49] 6 5 The Response correctly states that Pillinger interviewed a fifth witness named 6 in Mr. James's 1985 Rule 32 petition, his adoptive mother (Winnie James), and that 7 she testified at the mitigation hearing.7 However, Respondents omit mentioning 8 when this interview took place, whether it related to mitigation, or whether Pillinger 9 prepared her for her prospective testimony. Pillinger himself admits in his 1985 10 affidavit that he interviewed Mrs. James "prior to trial" [Response, Ex. C at 2], and a 11 review of his detailed record of activities indicates that his last contact with her 12 occurred long before trial and more than three months before the mitigation hearing. 13 [Ex. 29 at 8] Neither Pillinger's affidavit nor his record of activities indicate that he 14
6 Although these affidavits were not submitted to the state court, Mr. James presented 15 the "substance" of this claim in his 1985 Rule 32 petition, when he alleged that Pillinger failed to interview Stepp, Thorp and Jackson for mitigation evidence. See 16 Vazquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that the exhaustion doctrine was satisfied when supplemental evidence relating to a federal habeas petition did not 17 "fundamentally alter the legal claim already considered by the state courts"). Additionally, the Ninth Circuit has cautioned that a habeas petitioner should be 18 permitted to expand factual allegations made in state court consistently with the exhaustion requirement, if he has not been able to develop the supporting facts in 19 state court through any fault of his own. Landrigan v. Schriro, 441 F.3d 638, 648 (9th Cir. 2006), rev'd on other grounds, 127 S. Ct. 1993 (2007). When the state courts 20 themselves have turned down the opportunity to develop the federal questions presented in a claim, the policy behind requiring factual exhaustion is satisfied. For 21 example, in Weaver v. Thompson, the Ninth Circuit, finding a jury tampering claim factually exhausted, observed that petitioner's inability to fully develop what 22 transpired between the bailiff and the jurors during the petitioner's trial "stemmed from the state courts' refusal to grant him an evidentiary hearing on the matter." 197 23 F.3d 359, 364 (9th Cir. 1999). Similarly, Justice O'Connor noted that the petitioner had not been given a "full and fair" opportunity to develop his discrimination claim 24 in state courts, thus making him deserve such an opportunity in federal court. Vasquez, 474 U.S. at 266­67 (O'Connor, J., concurring). This Court itself has 25 recently resolved a case with this reasoning. See Poyson v. Schriro, 2006 WL 3497782 at *3 (D. Ariz. Dec. 4, 2006). 26 7 The Response erroneously identifies her as Winnie "Smith." [Response at 48:23] 19

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1 ever discussed his client's life history with Winnie James, beyond the cursory 2 information he elicited from her at the mitigation hearing. As noted in the Merits 3 Memorandum, Winnie James stated on numerous occasions in recent years that 4 Pillinger never interviewed her regarding Mr. James's life history, and never 5 prepared her as a witness before he called her to testify at the mitigation hearing. 6 [Merits Memorandum at 57:4-6] The Response does not try to rebut these facts, 7 because it cannot. 8 The Response implies that Mr. James was not prejudiced by Pillinger's failure 9 to interview Winnie James for mitigation evidence because she testified at the 10 mitigation hearing. [Response at 48] However, the Merits Memorandum details how 11 Pillinger totally botched Mrs. James's mitigation hearing testimony. [Merits 12 Memorandum at 51-58] The Response is unable to rebut a single assertion in the 13 Merits Memorandum regarding the mountain of information Pillinger failed to elicit 14 from Mrs. James, including her intimate knowledge of her son's descent into mental 15 illness and substance abuse after he learned the horrible details of his childhood, as 16 well as her possession of Mr. James's school records and the telephone number of his 17 biological mother in California.8 18 The Response does not contest the subsection of the Merits Memorandum 19 relating to Pillinger's failure to interview other Arizona witnesses with information 20 relating to Mr. James's post-adoption childhood, as well as his decline into mental 21 illness and chronic drug abuse as a young adult. [Merits Memorandum at 58-60] 22 These witnesses supplement the facts supporting the claims in Mr. James's 1985 23 Although Winnie James's diary, Mr. James's school records, and the affidavits and declarations relating to Winnie James's interviews in recent years were not presented 25 to the state court, the fundamental nature of this claim is the same as the claim presented in state court, which Mr. James was prevented from developing. [See note 26 6 above] The diary and Mr. James's school records are also analogous to the statistical evidence permitted by Vasquez, 474 U.S. at 260. 20 24
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8

1 PCR petition relating to Pillinger's failure to interview persons familiar with Mr. 2 James's life story, his history of substance abuse, and his mental disorder at the time 3 of the offense. Their evidence is especially important for Mr. James's federal habeas 4 claim because Winnie James and Eva Colderon, two of the witnesses identified in 5 Mr. James's 1985 PCR petition, are now deceased. Mr. James is forever deprived of 6 their live mitigating testimony because of the state court's refusal to permit 7 evidentiary development of his claim in 1985. Consequently, other witnesses who 8 can supply similar testimony should be allowed to take their place. See Landrigan, 9 441 F.3d at 642-43 (newly developed evidence is not factually unexhausted simply 10 because it is new, especially when state court rulings prohibited such development 11 earlier). 12 The state courts also had an opportunity to review evidence of essentially the 13 same claim in Mr. James's 1995 PCR petition, at a time when Mrs. James was still 14 alive. There, Mr. James stated that Pillinger "failed to . . . seek or obtain the records 15 and background information necessary to a full and accurate assessment of 16 Petitioner's family, social, medical and psychiatric history" [Ex. 78 (submitted with 17 this Reply) at 49]9; and "failed to interview Petitioner's former wife, former 18 girlfriend, or other individuals who would have substantiated Petitioner's history of 19 chronic drug and alcohol abuse and prior suicide attempts" [id. at 50]. The substance 20 of 1985 and 1995 claims was the same: that Pillinger failed to investigate leads and 21 interview witnesses who would have provided compelling mitigating evidence 22 related to Mr. James's life history and family background. See Weaver, 197 F.3d at 23 364 (when the substance of a claim is presented to the state court, the federal court 24 will not engage in "unwarranted hairsplitting" of additional facts supporting that 25 26
9

The exhibits submitted with the Merits Memorandum were numbered 1-76. The exhibits submitted with this Reply begin with number 78. There is no Exhibit 77. 21
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1 claim). 2 The Response is also correct in not challenging Mr. James's factual 3 allegations relating to Pillinger's failure to uncover powerful mitigating evidence in 4 Mr. James's pre-adoption history. [Merits Memorandum at 60-67] Although Mr. 5 James did not expressly refer to his early childhood in his 1985 PCR petition, he 6 alleged that Pillinger failed to interview Stepp, Thorp, Jackson and Winnie James for 7 mitigating evidence relating to his life history and his chronic substance abuse. Had 8 Pillinger interviewed those witnesses, he would have discovered: (1) that Mr. James 9 was an emotionally scarred child when he was adopted in 1963, and (2) that Mr. 10 James became unhinged a few months before the homicide, when he learned about 11 his horrible pre-adoption childhood. With this information, Pillinger would have had 12 a duty to investigate Mr. James's early childhood years with his biological family. 13 When a social history investigation uncovers evidence of a defendant's troubled 14 childhood, mental impairment, drug abuse or a family history of mental disorders, 15 further inquiry is essential for constitutionally effective representation. Wiggins, 539 16 U.S. at 516-17. "Wiggins . . . establishes that the presence of certain elements in a 17 capital defendant's background, such as family history of alcoholism, abuse, and 18 emotional problems, triggers a duty to conduct further inquiry before choosing to 19 cease investigating." Earp v. Ornoski, 431 F.3d 1158, 1175-76 (9th Cir. 2005). 20 Additionally, the state court summarily (and erroneously) denied Mr. James an 21 evidentiary hearing in 1985, thereby cutting short his efforts to develop the factual 22 support for his claim that Pillinger failed to interview mitigation witnesses familiar 23 with his life history. Had meaningful factual development occurred in 1985, the 24 evidence derived from Stepp, Thorp, Jackson and Winnie James would have led 25 directly to Mr. James's troubled emotional state at the time of his adoption, and his 26 mental deterioration after he learned the sordid details of his pre-adoption childhood, 22
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1 months before the homicide. 2 Similarly, Mr. James alleged in his 1985 PCR petition that Pillinger failed to 3 investigate Mr. James's mental disorder and suicidal disposition at the time of the 4 offense. If the state court had permitted evidentiary development of these assertions, 5 it also would have led to Mr. James's pre-adoption history and the shattering effect of 6 his discovery of that history, only months before the homicide. Dr. Jack Potts, the 7 psychiatrist treating Mr. James in the county jail in 1982, stated in an affidavit 8 submitted to the state court in 1995 that a complete social and family history would 9 have been essential to his diagnosis of Mr. James's mental state at the time of the 10 homicide. [Ex. 56 at 3-4] 11 Lopez v. Schriro, 491 F. 3d 1029 (9th Cir. 2007), cert. denied, 2018 U.S. 12 Lexis 1912 (Feb. 19, 2008), is an excellent example of how state court evidentiary 13 development can impact the exhaustion of federal claims. Lopez filed a Rule 32 14 petition in an Arizona state court alleging that he had received ineffective assistance 15 of counsel in the guilt phase of his capital case. Although his PCR petition did not 16 allege facts to support a claim that his counsel had failed to prepare adequately for 17 his sentencing hearing, he "eventually" briefed this issue and developed the facts to 18 support the claim at an evidentiary hearing. 491 F. 3d at 1040. The Ninth Circuit 19 held that Lopez successfully exhausted the claim when the state court allowed him to 20 develop the facts. Id. at 1041. 21 Additionally, when Mr. James returned to state court in 1995 with another 22 Rule 32 petition, asking the court to reverse its erroneous 1985 decision procedurally 23 barring all of his IAC claims, he made explicit the pre-adoption childhood history 24 lurking behind his 1985 petition. The 1995 PCR petition alleged that if Pillinger had 25 taken even minimal steps toward contacting Mr. James's biological family, he would 26 have been able to establish an understandable explanation for the mental, social and 23
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1 emotional problems that permeated Mr. James's life and led to the homicide. [Ex. 78 2 at 50] The 1995 PCR petition also included the detailed affidavit of an expert 3 witness (Dr. Jack Potts) that related Mr. James's pre-adoption history to his mental 4 state at the time of the offense [Ex. 56], as well as the affidavit of an investigator who 5 had interviewed Mr. James's biological brother, setting forth sordid details relating to 6 Mr. James's family of origin, and Mr. James's traumatic discovery of his early family 7 history a few months before the homicide [Ex. 79]. 8 In two separate Rule 32 proceedings, Mr. James expressly directed the state 9 courts' attention to Pillinger's failures to investigate matters related to Mr. James's 10 life history, family background and mental disorder. In both proceedings the state 11 courts summarily refused to provide him the opportunity to explore his arguments 12 regarding the ineffective assistance of counsel at sentencing, based on an inadequate 13 state preclusion rule, without regard to the scope of the factual allegations Mr. James 14 presented to support his claims. Any policy argument for requiring factual 15 exhaustion is satisfied here, where the state courts have had multiple bites at the 16 proverbial apple. Section 2254 "`requires only that state prisoners give state courts a 17 fair opportunity to act on their claims.'" Davis v. Silva, 2008 WL 36632 at *2 (9th 18 Cir. 2008) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (emphasis 19 in original). The state courts have had two fair opportunities to act on Mr. James's 20 claims. The scope of the factual allegations supporting the claims was irrelevant to 21 the state courts, and this is why they denied Mr. James the opportunity for full factual 22 development. He is entitled to that opportunity in this de novo review of his claim. 23 24 25 B. Pillinger's failure to consult with Mr. James sufficiently to uncover mitigating evidence.

Respondents cannot respond adequately to the merits of this subset of Claim 24

26 15, and they have wisely not even attempted to do so, because Mr. James's argument

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1 is unassailable.

As demonstrated in the Merits Memorandum, Pillinger's own

2 records establish that he never consulted with Mr. James in the month between the 3 guilt phase verdict and the mitigation hearing. [Merits Memorandum at 58-60] This 4 constitutes per se deficient performance under Strickland. See Summerlin v. Schriro, 5 427 F.3d 623, 630-31 (9th Cir. 2005) (en banc) (counsel's preparation for a 1982 6 capital sentencing hearing was constitutionally deficient when his own time logs 7 demonstrated that he did not meet with the defendant between the guilt phase verdict 8 and the sentencing hearing); see also Correll v. Ryan, 465 F.3d 1006, 1010-11 (9th 9 Cir. 2006) (deficient performance when counsel met with client for only five minutes 10 between jury verdict and sentencing hearing; even with additional client meetings, 11 counsel would have needed to probe thoroughly for leads to mitigating evidence). 12 The Response also does not question Petitioner's inclusion of inadequate 13 client consultation in Claim 15 (relating to IAC at sentencing), and not Claim 10 14 (IAC at the guilt phase). Still, the matter's relation to Claim 15 deserves an 15 explanation. In Mr. James's 1985 Rule 32 petition, he unquestionably apprised the 16 state courts of the underlying facts to support a claim of inadequate client 17 consultation. [Ex. 23 at 1-2, 5-6] To be sure, Mr. James did not use the identical 18 language in state court that he uses in federal court, but his allegations indicate that 19 he was complaining of insufficient consultation during both the guilt and sentencing 20 phases of his case. The applicable heading in Mr. James's 1985 Supplemental PCR 21 petition was entitled "The Denial of the Constitutional Right to Representation by a 22 Competent Lawyer at Every Critical Stage of the Proceeding" (emphasis supplied), 23 implying that he intended his arguments under this heading to apply to both guilt and 24 sentencing. His first argument under the heading alleged that Pillinger failed to 25 consult with him sufficiently to explore "all of the defenses that might have been 26 pursued in this case" (emphasis added) ­ again not differentiating between guilt and 25
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1 sentencing. On pages 5-6 of the pleading, Mr. James cited Pillinger's failure to ask 2 "anyone" (including Mr. James himself) why he was placed in a jail cell for the 3 mentally unbalanced, arguing that if Pillinger had investigated this fact, he would 4 have uncovered mitigating evidence. Thus, the state court had all of the operative 5 facts underlying a claim that Pillinger was ineffective for not consulting with Mr. 6 James to explore mitigating evidence. 7 Additionally, the State itself addressed the question of client consultation as a 8 sentencing issue in its sole state court pleading addressing the merits of the 1985 9 PCR petition. Although the State urged the trial court to dismiss the 1985 Rule 32 10 petition solely on the basis of procedural default, it also filed a pleading discussing 11 the merits of Mr. James's petition at length [Ex. 80, attached, at 6-26], and attached 12 Pillinger's affidavit to that pleading [Response, Ex. C]. The State argued in this 1985 13 pleading that Pillinger did not know about Mr. James's placement in a jail cell for 14 mentally disordered prisoners, a potential mitigating factor, because James had not 15 told him about this circumstance. [Ex. 80, attached, at 21]. Also, in Pillinger's 1985 16 affidavit, he rationalized his failure to interview mitigation witnesses on the ground 17 that he had no recollection that Mr. James ever told him about those witnesses. 18 [Response, Ex. C, at 2] 19 The Ninth Circuit has repeatedly emphasized the importance of substance over 20 form when federal courts assess the nature of a state court claim. For example, in 21 Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999), the petitioner alleged in state 22 court that a bailiff had tampered with jury deliberations by telling the jury that it had 23 to reach a verdict on a particular evening. 197 F. 3d at 361-62. When the claim was 24 developed in federal court, however, it became apparent that the judge had 25 impermissibly interfered with deliberations by instructing the jury (through the 26 bailiff) that it had to reach a unanimous verdict on each count. Id. at 362. Thus, both 26
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1 the underlying facts and the constitutional basis of the claim changed when it was 2 developed in federal court. The Ninth Circuit found the claim properly exhausted, 3 rejecting as "unwarranted hairsplitting" the argument that petitioner's additional facts 4 supported a claim that the trial court had erroneously instructed the jury, a different 5 claim from the state court allegation of bailiff misconduct. Id. at 364. Similarly, in 6 Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994), the petitioner alleged in state court 7 that he received ineffective assistance of counsel when his lawyer lied to him about 8 the consequences of a guilty plea, when counseling him through a translator. 36 F. 9 3d at 1461. Chacon reformulated the claim in federal court, alleging that the 10 translator had deliberately deceived him, with the result that his guilty plea was 11 involuntary, violating his right to due process. Id. at 1462. The Ninth Circuit held 12 that the involuntary plea claim was "fairly presented" to the state court, even though 13 phrased under the rubric of IAC. Id. at 1468. 14 Other circuit courts have agreed with the Ninth Circuit's emphasis on 15 substance, rather than form, for purposes of exhaustion. For instance, the Third 16 Circuit heeded the Supreme Court's admonishment to not unduly parse allegations in 17 order to "distill . . . an unexhausted claim" in Henderson v. Frank, 155 F.3d 159, 165 18 (3d Cir. 1998) (quoting Engle v. Isaac, 456 U.S. 107, 124 n.25 (1982)). Henderson 19 held that a petitioner had exhausted a claim that he had not voluntarily waived 20 counsel at two separate state court proceedings, even though his claim in state court 21 had referred to only one of those proceedings. Id.; see also Whitehead v. Johnson, 22 157 F.3d 384, 386­87 (5th Cir. 1998) (federal due process claim based on 23 miscalculation of time served in prison and on parole was properly exhausted by a 24 state claim based only on time served on parole); Dorsey v. Kelly, 112 F.3d 50, 52­ 25 54 (2d Cir. 1997) (petitioner exhausted IAC claim based on the counsel's failure to 26 object to evidence of semen on the victim's underpants, even though state claim 27
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1 alleged that the substance was saliva). 2 This Court has followed this very approach, valuing substance over form, with 3 regard to Claim 12 of Mr. James's habeas petition. In state court, Mr. James alleged 4 this claim as a violation of his right to testify on his own behalf. [Ex. 23 at 6] The 5 claim was reformulated in the present habeas proceeding as an ineffective assistance 6 of counsel claim. Clearly, the substance of the state and federal claims was the same, 7 and this Court found it to be "fairly presented" to the state court. [Dct. No. 79, Order 8 re: Procedural Status of Claims at 13-14] 9 10 11 12 13 14 15 16 17 18 19 20 21 Unquestionably, this subset of Claim 15 allegations was fairly presented to the state court in 1985. [See Merits Memorandum at 70, n. 35] Additionally, the same 22 claim was presented in greater detail in Mr. James's 1995 Rule 32 petition. See Ex. 78 to this Reply at 50-59. 23 11 The Response incorrectly states that Dr. Tuchler testified on November 12, 1982. [Response at 51:28] He actually testified ten days earlier. [R.T. 11/2/82, 1353-1377] 24 The Response also erroneously identifies Dr. Tuchler as the "first psychiatrist who 25 had examined James after he had been taken into custody." [Response at 52:1-2] In fact, Dr. Tuchler met Mr. James only once, in March 1982, when Dr. Tuchler 26 conducted a competency evaluation at the request of the court, four months after Mr. James was taken into custody. [R.T. 11/2/82 at 1355:21 - 1356:1] 28
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10

C.

Pillinger's failure to develop mitigating evidence on the effects of drugs and alcohol on Mr. James's mental state at the time of the offense, in light of Mr. James's extensive history of substance abuse.10

Remarkably, the Response asserts that Terry Pillinger "successfully" developed as mitigation evidence the fact that Mr. James was under the influence of drugs at the time of the offense. [Response at 52:20-21] Respondents base this astonishing claim of "successful" advocacy on only one point: Dr. Maier Tuchler's hearsay testimony that Mr. James had told him he was under the influence of drugs.11 Pillinger had ample time to prepare and present far more substantial eyewitness mitigating evidence relating to Mr. James's impairment from drugs and alcohol. As this Reply discusses in connection with Claims 10 and 12 above,

1 Pillinger knew soon after his entry into the case that Mr. James had ingested large 2 amounts of intoxicants during the hours preceding the homicide. Pillinger discussed 3 the case extensively with Mr. James's prior attorney, Glenn Johnson, who believed 4 that "drugs and alcohol permeated the case." [Ex. 16 at 1] Pillinger also knew that 5 the pre-trial statements of the prosecution's two lead witnesses, Martin Norton and 6 Daniel McIntosh, detailed Mr. James's ingestion of drugs and alcohol before the 7 crimes. [Ex. 3 at 4, 6 and 14; Response at 32:6-11] Pillinger himself typed the 8 words "Voluntary Intoxication" on his initial notice of defenses. [Ex. 18] Even if 9 one accepts Pillinger's self-serving statement in his 1985 affidavit that he did not 10 learn about Mr. James's drug overdose until the middle of the guilt phase trial [see 11 Response, Ex. C at 1], there is no excuse for Pillinger's failure to present direct, first12 hand mitigating evidence of Mr. James's ingestion of mind altering drugs on the 13 night of the crimes. The mitigation hearing took place approximately five weeks 14 after the guilty verdict. Pillinger's detailed activity log for the period between trial 15 and sentencing does not include a single entry relating to an investigation of Mr. 16 James's long term substance abuse or his drug and alcohol use on the day of the 17 offense. [Ex. 29 at 16-19] 18 Pillinger claimed in his 1985 affidavit that he did not want Mr. James to 19 testify about drugs during the guilt phase, for three reasons: (1) it would be 20 inconsistent with Pillinger's announced defense (duress); (2) it would alienate the 21 jury; and (3) it would likely be unsuccessful. [Response, Ex. C at 1] Presumably, he 22 decided not to elicit similar testimony from Norton or McIntosh during the guilt 23 phase for the same reasons. But even if one assumes (for the purpose of argument) 24 that these rationales were legitimate "strategic" reasons for not presenting voluntary 25 intoxication evidence during the guilt phase, none of them make any sense in relation 26 to sentencing. 29
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1

The supposed "inconsistency" between duress and voluntary intoxication had

2 no bearing on the mitigation hearing, for several reasons. First, Pillinger totally 3 abandoned duress at the sentencing phase, never even mentioning it during the 4 mitigation hearing or in his closing argument ten days later. Instead, he switched to 5 the defense that Mr. James had urged all along ­ drug-induced diminished capacity. 6 But Pillinger still failed to bring Norton's and McIntosh's pre-trial statements to the 7 court's attention, even though he was no longer shackled by the supposed 8 "inconsistency" of his defenses. Pillinger also did not call Mr. James as a witness at 9 the mitigation hearing, despite his admission in his 1985 affidavit that Mr. James 10 wanted to testify on this subject. These failures were almost certainly the result of 11 Pillinger's a total lack of investigation of this issue in preparation for the mitigation 12 hearing. As noted in relation to Claims 10 and 12, he never interviewed Dan 13 Severance and Ross Waller, the two persons (in addition to Norton and McIntosh) 14 who witnessed the effects of Mr. James's ingestion of intoxicants in the hours before 15 the homicide. 17 Both of these witnesses would have supported a drug induced 16 diminished capacity mitigation claim. [Exs. 21, 22] Second, there was no jury to alienate at Mr. James's sentencing hearing, two Unlike Pillinger, Judge Moeller (the judge 18 decades before Ring v. Arizona.

19 sentencing Mr. James) was