Free Response - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) ROBERT J. GORMAN A SSISTANT ATTORNEY GENERAL CAPITAL LITIGATION SECTION 400 W EST CONGRESS, BLDG. S­315 TUCSON, A RIZONA 85701B1367 TELEPHONE : (520) 628­6520 (STATE BAR NUMBER 12728) E-MAIL: CADOCKET @AZAG.GOV ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
STEVEN CRAIG JAMES,
Petitioner,

CIV 00-1118-PHX-NVW

-vsDORA B. SCHRIRO, et al.,
Respondents.

RESPONSE TO PETITIONER'S OPENING MEMORANDUM RE: MERITS OF CLAIMS

Respondents, pursuant to this Court's Order dated July 24, 2006, and the Rules Governing § 2254 Cases, hereby respond to Petitioner's Memorandum Re: Merits of Claims. For the reasons set out in the accompanying Memorandum of Points and Authorities Respondents request that this Court deny the claims and dismiss the Petition for Writ of Habeas Corpus. DATED this 17th day of OCTOBER, 2007.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY G ENERAL S/ROBERT J. GORMAN ASSISTANT ATTORNEY G ENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL AND PROCEDURAL BACKGROUND. Around midnight on November 16, 1981, 14­year­old Martin Norton

5 ("Norton") was hitchhiking home to the trailer he had been sharing for a week 6 with Petitioner James ("James"). (R.T. 9/27/82, at 754.) See also State v. James, 7 8 141 Ariz. 141, 144, 685 P.2d 1293, 1296 (1984) (referencing the facts of the 9 murder set out in the case of James' co-defendant, Lawrence Libberton 10 ("Libberton"), State v. Libberton, 141 Ariz. 132, 135­36, 685 P.2d 1284, 1287­ 11 12 88 (1984)). 13 14 15 trailer and then made homosexual advances: trying to hug Norton and pull his 16 pants down. 141 Ariz. at 135­36, 685 P.2d at 1287­88. (R.T. 9/27/82, at 756.) 17 Norton told Maya to leave him alone and said there was a homosexual in the 18 trailer "that he could get." Id., at 757. Petitioner and Libberton were inside the 19 20 trailer when Norton entered, ran behind Petitioner's chair and "told Steve 21 [James] to keep him away from me, that he was gay." Id. Petitioner responded 22 by kicking Maya in the crotch and handing Norton a gun. Maya ran, and 23 24 Petitioner took off after him with Libberton following. Id., at 762. 25 26 27 nose bloody. James, Norton and Libberton then took turns hitting the victim in 28 the face. 141 Ariz. at 135­36, 685 P.2d at 1287­88. Maya begged them to take
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Juan Maya, the victim, picked Norton up, drove to within a block of the

Petitioner and Libberton brought Maya back to the trailer, his mouth and

1 his car and his credit cards and stop hitting him. Petitioner, with the gun now in 2 3 4 the wallet and forced the victim to sign the car over to him. He took Maya's belt 5 and said "[n]ow that I own Juan Maya's car I might as well be Juan Maya." 6 Libberton then put on the belt which had Maya's name engraved on it." Id. 7 James, Libberton and Norton discussed killing Maya in Maya's presence, 8 9 and James suggested they could hide the body in a mine shaft on his parent's 10 property near Salome a two hour drive away. The men forced Maya into his car 11 12 at gunpoint and James bought gas and cigarettes with one of Maya's credit cards. 13 Id. 14 15 17 18 19 his hand, took Maya's wallet. Id. Libberton took the title to Maya's car from

A police officer stopped the car for speeding, but after a 4­minute

16 conversation with the officer, James was able to talk his way out of a ticket. Id. They arrived at the property of James' parents just before dawn. Id. Petitioner ordered Maya to climb the side of a hill to the mineshaft but allowed

20 him to smoke a "last cigarette" before killing him. Id. After Maya begged for his 21 life, James fired two shots at Maya but both times the gun misfired­only sparks 22 coming out the barrel because the pistol turned out to be filled with debris. Id. 23 24 Maya grabbed at the gun and struggled with James, and they fell to the ground. 25 Libberton grabbed a five­pound rock and began beating Maya on the back of the 26 head with it. Id. Norton then gave Libberton a board which he used to hit Maya 27 28 forcing him to let go of the gun. Id.
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Both James and Libberton again tried to shoot Maya but the weapon misfired once more. Maya was still conscious, making gurgling sounds. All

4 three assailants then slammed large rocks on the back of Maya's head as he was 5 face down on the ground rendering him unconscious. Petitioner and Libberton 6 then threw Maya's body down the mine shaft. Id. 7 In Phoenix the following day the killers tried to buy various items of 8 9 merchandize with Maya's bank card, and Libberton tried to pass a 10 "convenience" check that James had forged in Maya's name at Valley National 11 12 Bank. Id. This led to police contacting James, Libberton, and Norton at the 13 scene, later arresting all of them in connection with the murder. (R.T. 9/27/82, at 14 724-733, 801­802.) 15 James testified at trial that he never kicked Maya but conceded that, when 16 17 he caught up with Maya he did punch him in the mouth knocking Maya to the 18 ground. (R.T. 9/28/82, at 901-902.) James claimed that he only punched Maya 19 20 in self­defense and said that he just wanted to get Maya safely out of the trailer 21 park. Id. James' testimony was that he never struck Maya again and that his 22 participation in the events leading up to the killing was extremely limited, i.e., 23 24 being coerced into driving Maya's car to the scene where Libberton and Norton 25 committed the murder. (R.T. 9/28/82, at 901­915, 919, 923­929.) 26 When he was in custody waiting to be interviewed at the police station, 27 28 James threatened another inmate thought to be homosexual, saying in front of a
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1 patrol officer, "If he tries anything, he'll wind up like the other guy." (R.T. 2 3 4 As the trial judge stated in his special verdict, Juan Maya suffered 5 prolonged, excruciating pain before he died: 6 The evidence unquestionably shows beyond doubt that the 7 victim in this case suffered prolonged, and excruciating mental, physical and psychological pain and distress, and that 8 such pain and distress were inflicted deliberately and 9 sadistically. Several hours passed between the time Defendant [James] and his co-murderers formed the intent to kill the 10 victim and the time that they did kill him. During this time 11 the victim was viciously beaten all over his body, including his head, face and groin. He was taunted and his murder was 12 openly and blithely discussed in his presence. Early in the 13 evening, he attempted to escape, and was caught by Defendant and returned to the Defendant's home. His 14 repeated pleas to be released in return for all his valuables 15 were rejected. He was held at gunpoint for hours. He was kidnapped and spent hours traveling to the scene of his death 16 in his own automobile. After finally arriving at the scene of 17 his murder in a remote, isolated desert area, he was shot, causing his clothing to catch on fire. He was then viciously 18 beaten with fists, boards and rocks until finally he expired. 19 The evidence shows he was beaten beyond recognition prior to his death. 20 21 22 23 24 25 26 27 28 . . . Even if the events of the evening began as the perpetrators now claim, there was no reason for the killing other than the perpetrators' greed and their arrogation to themselves of the role of executioners to those whose sexual preferences they purport to decry. The Defendant carried out this murder in a depraved manner, indicating a total disregard of even minimal feelings of compassion for a fellow human being. The manner in which the killing was accomplished has already been detailed. Following the killing, the Defendant bragged about his role in it and of the difficulty they had in finally making Juan Maya die. Defendant's statements
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11/2/82, at 1418).

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evidence no compassion or remorse and indicate he felt he was justified in killing someone who he believed to be different from himself.

4 (R.T. 11/23/82, at 1455­1456.) 5 6 7 8 The Arizona Supreme Court affirmed Petitioner's convictions and sentences on direct appeal on June 5, 1984. James, 141 Ariz. 141 (1984). In November 1984, James filed his first state petition for post-conviction

9 relief ("PCR") in the trial court. (Dkt. 79, at 3.) That court denied relief and a 10 motion for a rehearing, and the Arizona Supreme Court denied review. Id. 11 In 1986, Petitioner filed for habeas corpus relief in the district court in 12 13 Case No. CIV 86-587-PHX-RGS, and the Court subsequently dismissed the 14 petition without prejudice to permit James to return to state court in order to 15 16 exhaust certain claims. Id. Petitioner filed a successive petition for post17 conviction relief in July of 1990, and the post-conviction court again denied 18 relief, and the Arizona Supreme Court denied review. Id. 19 In 1993, Petitioner returned to District Court and filed a new habeas 20 21 petition in Case No. CIV 93-0869-RGS. Id. The Court again dismissed the 22 petition without prejudice on January 27, 1994, to let James return to state court 23 24 to exhaust more claims. Id. Petitioner filed his third petition for post25 conviction relief in state court in March 1995, which the post-conviction court 26 denied in May 1999. Id. The state supreme court again denied review. Id. 27 28 On June 29, 2000, Petitioner filed a new habeas petition in this Court,
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1 with full procedural briefing concluding in November 2001. Id. While the 2 3 4 Circuit Court of Appeals issued an opinion calling Arizona's procedural default 5 doctrine into question. Id. See Smith v. Stewart, 241 F.3d 1191 (9th Cir. 2001). 6 The Court deferred ruling on the procedural status of James' claims pending 7 8 review of Smith by the United States Supreme Court which subsequently 9 reversed the 9th Circuit. See Stewart v. Smith, 536 U.S. 856 (2002) (per curium). 10 (Dkt. 79, at 4.) Within days the United States Supreme Court also found 11 12 Arizona's death penalty sentencing statutes unconstitutional. Id., at 4. See Ring 13 v. Arizona, 536 U.S. 584 (2002). This Court continued to defer a ruling on the 14 procedural issues in this matter pending a determination whether Ring applied 15 16 retroactively to cases on collateral review. Id. The United States Supreme Court 17 held that Ring does not apply retroactively, in June 2004. 18 Summerlin, 542 U.S. 348 (2004). 19 20 21 II. See Schriro v. procedural status of the claims in this matter was under advisement the Ninth

LAW GOVERNING REVIEW OF PROCEDURALLY PROPER CLAIMS.

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this

22 Petition because it was filed after April 24, 1996. AEDPA "modified a federal 23 habeas court's role in reviewing state prisoner applications in order to prevent 24 federal habeas `retrials' and to ensure that state-court convictions are given 25 effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 26 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403­04 (2000)). The Ninth 27 Circuit has recognized that Congress' purpose in enacting the AEDPA was "to 28
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1 restrict the availability of habeas corpus relief." Greenawalt v. Stewart, 105 F.3d 2 1268, 1271 (9th Cir. 1997). Under the amended statute, a state prisoner is not 3 entitled to federal habeas relief with respect to any federal claim that was 4 adjudicated on the merits in state court proceedings unless adjudication of the 5 claim: 6 7 8 9 10 11 12 13 28 U.S.C. § 2254(d). This amended statute creates a "new, highly deferential 14 standard for evaluating state court rulings." Lindh v. Murphy, 521 U.S. 320, 334 15 16 17 conduct de novo review of the state court's decision. Van Tran v. Lindsey, 212 18 F.3d 1143, 1149 (9th Cir. 2000). "Adjudication" does not require that the state 19 20 21 969-70 (9th Cir. 2004). 22 23 24 25 26 28
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(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

n.7, 117 S. Ct. 2059, 2066­67 n. 7 (1997). Consequently, this Court does not

courts conducted an evidentiary hearing. Lambert v. Blodgett, 393 F.3d 943,

The requirement of an adjudication on the merits does not mandate a hearing or other judicial process beyond rendering a decision; rather it means that the court must finally resolve the rights of the parties on the substance of the claim, rather than on the basis of a procedural or other rule precluding state review of the merits.

th 27 Barker v. Fleming, 423 F.3d 1085, 1092 (9 Cir. 2005) citing Lambert, 393 F.3d

1 at 969. 2 3 4 (1) have independent meanings. Bell, 535 U.S. at 694: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principles from our decisions but unreasonably applies it to the facts of the particular case. The focus on the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. (Citations omitted; emphasis added.) This Court has no authority to "substitute its own judgment for that of the state court" and grant habeas relief based solely on an incorrect application of federal law; rather, the state court's application of federal law must also be objectively unreasonable. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) ("The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a statecourt decision is objectively unreasonable."). The United States Supreme Court analyzed the "unreasonable application" prong of subsection (1) within the context of an ineffective assistance of counsel claim and explained the distinction as follows: For respondent to succeed ... he 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
9

The "contrary to" and "unreasonable application" clauses in subsection

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applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner. Bell, 535 U.S. at 698­99; see also Visciotti, 537 U.S. at 24­25. (A federal court "may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. [Citation omitted]. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts in an objectively unreasonable manner."). In determining whether the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," the phrase "Federal law" refers exclusively to United States Supreme Court precedent. Ramdass v. Angelone, 530 U.S. 156, 165­66 (2000); Williams v. Taylor, 529 U.S. 362, 412­13 (2000); see also Van Tran, 212 F.3d at 1154 ("[W]e may not, of course, reverse a state court's decision simply because it is inconsistent with a rule established by a Ninth Circuit case"); and Dows v. Wood, 211 F.3d 480, 485 (9th Cir. 2000) (under amended 28 U.S.C. § 2254(d), the Ninth Circuit is "without the power" to extend the law beyond Supreme Court precedent). Thus, circuit court case law is relevant only to the extent it illuminates what the Supreme Court has clearly established or holds that a state court has "unreasonably applied" Supreme Court precedent. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999). In evaluating a state court decision, this Court must refrain from Duhaime v.

23 "mischaracterization of the state court opinion" or record, and defer to "the 24 presumption that state courts know and follow the law." Visciotti, 537 U.S. at 2425 25. (reversing grant of habeas relief, finding that state court opinion rejecting 26 ineffective assistantance of counsel claim was not contrary to or an unreasonable 27 application of Strickland). If the state court neither explains its ruling nor cites 28
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1 United States Supreme Court authority, this Court must nevertheless examine 2 Supreme Court precedent to decide whether the state court reasonably applied 3 federal law. Early v. Packer, 537 U.S. 3, 6 (2002). Citation to federal law is not 4 required and compliance with the AEDPA "does not even require awareness of 5 [Supreme Court] cases, so long as neither the reasoning nor the result of the state6 court decision contradicts them." Early, 537 U.S. at 6; Fisher v. Roe, 263 F.3d 7 906, 914 (9th Cir. 2001). 8 Additionally, in order to grant relief under section § 2254(d) (1), this Court 9 must find that the error had "substantial and injurious effect or influence in 10 determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637­38 11 (1993); Murtishaw v. Woodford, 255 F.3d 926, 973 (9th Cir. 2001) ("Because this 12 case involves a petition for habeas corpus, and because the improper jury 13 instruction was a trial­type error, Brecht . . . controls."); Bains v. Cambra, 204 14 F.3d 964, 977 (9th Cir. 2000) ("we now join the vast majority of our sister 15 circuits by deciding that the Brecht standard should apply uniformly in all federal 16 habeas corpus cases under § 2254"). This standard applies even if the state court 17 did not conduct a harmless error analysis. Bains, 204 F.3d at 977­78. If the state 18 court conducted a harmless error analysis, the federal court must first determine 19 whether the state court's analysis was objectively unreasonable under the 20 AEDPA, and only if this initial conclusion is reached must the federal court 21 decide whether Brecht requires relief; if the state court's decision is not 22 objectively unreasonable, the inquiry ends. Medina v. Hornung, 372 F.3d 1120, 23 1126 (9th Cir. 2004). 24 Petitioner has the burden of proving that his detention violates the federal This Court applies a presumption of correctness to factual and 25 constitution. 28 U.S.C. § 2254(e) (1); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th 26 Cir. 2001). 27 credibility determinations made by state trial and appellate courts. Bragg, 242 28 F.3d at 1087 (citing Sumner v. Mata, 449 U.S. 539, 546­47 (1981)).
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1

A state court's interpretation of state law is binding upon a federal habeas

2 court. Bains, 204 F.3d at 972 (citing Wainwright v. Goode, 464 U.S. 78, 84 3 (1983)). 4 Finally, in attempting to prove his habeas claims, a state prisoner is limited 5 to the factual assertions made in state court in support of properly exhausted 6 claims, and he may not unilaterally alter or expand those factual assertions in 7 federal court. See e.g. Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999) 8 (rejecting a claim that the prisoner was entitled to an evidentiary hearing: "State 9 law not only permitted but required [the prisoner] to come forward with affidavits 10 or other evidence, to the extent that his claim relied on evidence outside the trial 11 record"). The United States Supreme Court has made it clear that federal habeas 12 courts can only assess the alleged "unreasonableness" of state court decisions in 13 light of the record that was actually before the state court at the time. Holland v. 14 Jackson, 542 U.S. 649, 652-53 (2004). 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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A. ANALYSIS OF CLAIMS NOT INVOLVING ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL ("IAC"). Claim 1. James contends he was denied due process because the State allegedly failed to disclose a verbal agreement Norton's lawyer had supposedly made with an unnamed juvenile prosecutor, even though Norton's actual written plea agreement was timely disclosed, entered into evidence at trial, and included every provision (plus many others) in the alleged oral one. Petitioner bases Claims 1, 2, 3, and 4 on the same factually questionable and legally misleading assertion. He asserts that the State had failed to disclose a verbal agreement between Norton's lawyer and an unnamed juvenile court prosecutor. The agreement allegedly reached before the written plea was signed was that: "if Norton gave a statement implicating Petitioner and Libberton, and

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1

further agreed to testify consistently with that statement at their trials, the State would allow Norton's case to remain in juvenile court." (Petitioner's Opening Memorandum Re: Merits Of Claims ("Pet. Merits Memo") at 5, 9, 15, 18, and Ex. 2 thereto).1 The trial prosecutor in this case; the head Maricopa County Attorney's juvenile section at the time, and the juvenile prosecutor who handled Norton's case, all swore out affidavits denying any agreement had been made prior to Norton giving his statement to the trial prosecutor and the negotiation of the written plea agreement. Moreover, Petitioner does not dispute that Norton's subsequent statement to the prosecutor and his subsequent written plea agreement were fully and timely disclosed. (Pet. Merits Memo, Ex. 3.) Indeed, the prosecution admitted Norton's entire plea agreement as a trial exhibit, which reads in pertinent part: (1) Martin David Norton agrees to testify fully and truthfully in any proceeding determined to be necessary by the State of Arizona regarding the victim Juan Maya and/or in any criminal prosecution of Lawrence Keith Libberton or Steven Craig James. On December 29, 1991, Martin David Norton provided information to Deputy Maricopa County Attorney Myrna Parker and represented that information to be true. If Martin David Norton's testimony is not substantially consistent with the

21 ________________________ Petitioner's bases his claim of a verbal "deal" entirely on the following sentence in a 1993 affidavit by Norton's juvenile attorney: "At some point in time the head of the juvenile division indicated orally that if Mr. Norton would give a full and accurate statement to the County Attorney and would testify consistently with that statement at the trials of the adults who participated in the homicide offense, the County Attorney would not seek to have my client transferred to adult court." (Pet. Merits Memo, Ex. 2.) As the post-conviction judge noted the affidavit makes no mention of Norton "implicating Petitioner and Libberton" as Petitioner misleadingly states, just to giving a "full and accurate" statement. At most the affidavit can only refer to preliminary contacts between the prosecution and defense­­for the very reason that the lead prosecutor had no reason to offer any plea to Norton until she learned what he had to say.
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information that he provided in the December 29, 1981 interview, then the State of Arizona shall have the option of withdrawing from this agreement and the agreement shall be void. (2) In consideration of Martin David Norton's expected compliance with subsection (1) of this agreement, the State of Arizona agrees to withdraw the transfer request on the petitions dated November 20, 1981 and December 3, 1981. (3) Martin David Norton agrees to admit in Juvenile Court to the allegation of Receipt Of Anything Of Value Obtained By Fraudulent Use Of A Credit Card in the petition dated November 20, 1981. Martin David Norton likewise agrees to admit in Juvenile Court to the allegations of First Degree Murder, Kidnapping, and Armed Robbery in the petition dated December 3, 1991. (4) If Martin David Norton breaches subsection (1) of this agreement at any time, the entire agreement shall be void. The State of Arizona shall reinstitute the transfer request on the petitions dated November 20, 1981 and December 3, 1981. If the agreement becomes void, Martin David Norton expressly waives any double jeopardy claim. (Pet. Merits Memo, Ex. 4.) Simply put, with respect to all of Petitioner's claims dealing with Norton the jury could read the entire written agreement which fully encompassed all of the alleged prior verbal understandings with the unnamed prosecutor. James exhausted these claims in his third petition for post­conviction

23 relief. (Ex. A, at 5-14.) He wrongly asserts that the state court decision denying 24 his claim was unreasonable and further asserts that it is not entitled to the 25 26 deference granted by AEDPA­because it did not hold an evidentiary hearing, 27 relying instead on numerous exhibits, pleadings, and the record. ( et. Merits P 28
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1 Memo, at 4-5.) Simply put, "adjudication" as set out in 28 U.S.C. § 2254(d) is 2 3 4 require that state courts conduct evidentiary hearings. Lambert v. Blodgett, 393 5 F.3d 943, 969-70 (9th Cir. 2004). 6 The following plainly shows the post-conviction court decided these issues "on 7 8 the merits." 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At some point in time the head of the juvenile division indicated orally that if Mr. Norton would give a full and accurate statement to the County
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not a term of art as James suggests, and compliance with thee AEDPA does not

The post-conviction court most assuredly resolved these claims on substantive grounds because it assumed James' assertions about a secret agreement were true and still found there was no way any of the claims could have affected the verdict. Petitioner contends there was a secret oral agreement between the state and Martin Norton's attorney, Robert Wertsching, prior to the written plea agreement in Norton's case, and that Norton relied on this alleged agreement in giving his statement on December 29, 1981. He maintains this information should have been produced by the County Attorney's Office in response to Petitioner's various pre­trial discovery motions, and because it wasn't, the County Attorney's Office violated Brady v. Maryland, 373 U.S. 83 (1963). Petitioner says he was denied the opportunity to refute the accuracy of Norton's testimony that no promises were made to him before he agreed to make the December 29, 1981 statement, resulting in a denial of due process under the Fourteenth Amendment of the United States Constitution and Article 2, Section 4 of the Arizona Constitution. The substance of the alleged agreement, as related in Robert Wertsching's affidavit is as follows:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Ex. A, at 2­3.) 27 28

Attorney and would testify consistently with that statement at the trials of the adults who participated in the homicide offense, the County Attorney would not seek to have my client transferred to adult court. * * * [M]y client and I expected that if my client was truthful in the debriefing and cooperated fully with the prosecution of the adult defendants, he would not be remanded to the adult court. (Citation omitted.) Petitioner relies on Rule 32.1(e) Ariz. Rules of Criminal Procedure. This rule allows relief to be granted on the grounds of "newly discovered material facts probably existed and such facts probably would have changed the verdict or sentence." To be entitled to an evidentiary hearing the defendant must make a colorable claim, i.e., show that the allegations, if true, would have changed the verdict (Citations omitted.) In order to present a colorable claim under Rule 32.1(e), the newly discovered evidence must meet five requirements: (1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial; (2) the motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention; (3) the evidence must not be simply cumulative or impeaching; (4) the evidence must be relevant to the case; (5) the evidence must be such that it would likely have altered the verdict, finding or sentence if known at the time of the trial. (Citation omitted.)

The post-conviction court expressly found any such agreement would
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really be used only for impeachment purposes. (Id., at 4.) Petitioner maintains that knowledge of the alleged agreement was essential for challenging Norton's credibility. It is asserted the agreement explains Norton's motive for coming forward. More specifically, he says the "import of the secret agreement" is that "it provided a motive for Norton to give the State a version of the facts that it could use in prosecuting [James.]" . . . Prior to the time there was any agreement, Norton had already made statements to the police incriminating [James]. These statements were made before he was represented by counsel. Therefore, his motive was not based on the agreement. Norton was a young man who admitted being involved in a murder committed by the two adult defendants. He was in serious trouble. Although the statements he made while being interrogated by the police were not necessarily consistent, the statements either implicated and connected the defendant with the murder or were statements where Norton denied having knowledge of how the crime occurred. [James] does not argue that the later statements, the statements denying knowledge of the crime, were truthful and that the statements implicating [James] were false. Because there were prior statements made by Norton that implicated [James] , Norton's motive for testifying was not the result of a "secret agreement." (Ex. E, at 5.) The post-conviction judge also noted: "The alleged oral agreement required Norton to give a `full and accurate statement,' not to `give a statement implicating [James] and Libberton,' as [James] asserts." (Ex. A, at 6.) The post-conviction court went on at great length about why the existence of such an agreement would not have altered the verdict or sentence. The existence of the agreement would not have altered the verdict or sentence because of the overwhelming evidence of guilt against [James]. In addition to Norton's eyewitness testimony, the state presented [James'] confession to Daniel McIntosh, in which [James] bragged and smiled about his
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involvement in the abduction, beating and shooting of Juan Maya. [James] showed authorities where Juan Maya's body was disposed of in the mine shaft on property in Salome that belonged to his parents. While at the mine shaft, and on the way back to Phoenix, [James] made inculpatory statements to the officers. The statements were not suppressed. [James] initially lied to authorities about his knowledge of the murder. Although he claimed the murder was the result of coercion and duress imposed upon him by the co-defendant, he continued to voluntarily associate with Libberton after the murder. . . . . . . The jury heard [James] say that he was coerced to participate in the murder by the much smaller person, Libberton. Yet, [James] admitted that he drove the group to the murder scene which was 100 miles from Phoenix, as Libberton did not know the location of the Salome property. [James] testified that he deliberately exceeded the speed limit in order to be pulled over by the police. Yet, when he was pulled over and had gone to the rear of the vehicle to speak to the police officer, he failed to say anything about Juan Maya's impending murder, and he made no attempt to escape. [James] admitted that Libberton never actually pointed the gun at him, [James'] gun, at him before they arrived in Salome, and even though he knew the gun had been fired dry [emptied] he did not try to escape . . . The trial judge characterized [James'] version of events as "blatant perjury." (Citation omitted.)

22 (Ex. E, at 7-8.) In rejecting Petitioner's additional argument that he might not have testified at trial if he had known of the "oral agreement" the post­conviction judge explicitly found that, "Even without defendant's testimony, additional possible impeachment of Norton would not have altered the verdict or sentence
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in light of the remaining evidence of guilt against the defendant." Id., at 9. In analyzing James' claim in the context of Brady v. Maryland, 373 U.S. 83 (1963), the post-conviction court reached the identical result. Id. Referring to the United States Supreme Court's opinion in United States v. Agurs, the Arizona Supreme Court in State v. Bracy, 145 Ariz. 520, 528, 703 P.2d 464, 472 (1985), listed the three categories of undisclosed evidence for determining the three levels of materiality which warrant a new trial under Brady. James asserts the standard to apply in his case is whether "the suppressed evidence might have affected the outcome of the trial." (Citation omitted.) This is the standard to apply when the defendant has made a request for specific evidence. . . . . . . If there was a specific request the standard of "might have affected the outcome" is not met, due to the overwhelming evidence of guilt and the Brady material's minor impeachment value. The outcome of the trial would not have been affected by knowledge of Norton's agreement. Id., at 10. The post-conviction court used the correct United States Supreme Court precedent in its review of this first claim, e.g., Brady, and again came to an eminently reasonable conclusion­that this issue could not have affected the outcome of the trial. Claim 2. Petitioner asserts the State failed to correct, and instead allowed, false testimony by Martin Norton. The second claim concerning Norton that a prior oral "agreement" with an unnamed juvenile prosecutor existed that if Norton subsequently gave the
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2

homicide prosecutor a full and accurate account of the murder and then testified truthfully Norton's case would remain in juvenile court. James unaccountably asserts that Norton was testifying falsely about this alleged agreement in a colloquy with the prosecutor.2 This is so because the testimony James cites makes no such assertion about any such provision. Moreover, Norton's real, written plea agreement, which the prosecution entered into evidence showed that Norton had precisely the same motive for testifying against James. Whether or not there had been an alleged oral agreement Norton did not want to be prosecuted as an adult. Norton's so-called "false" testimony, only partly quoted by James, never even discusses the alleged "secret" agreement his juvenile defense attorney, Wertsching, alleges. Q. (Trial Prosecutor) A couple of days later you were picked up and taken down to the police station; is that correct? A. (Norton) Yes. Q. And at that time you were interviewed by Detective Russ Davis, the gentlemen sitting beside me? A. Yes. Q. Did you tell him the truth? A. No.
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James mistakenly cites Norton's testimony as transcribed in R.T. 9/28/82, when it actually is transcribed on 9/27/82, at 808­812.
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Q. Did you tell him partially though what had happened? A. Yes. Q. Why didn't you tell him the truth? A. Because I was scared. Q. Now you were placed in custody and then held at that time, weren't you? A. Yes. Q. And you were held out at the Durango facility? A. Yes. Q. Sometime thereafter a Detective Hackworth, an older gentlemen, interviewed you; is that correct? A. Yes. Q. And he advised you of your rights? A. Yes. Q. And he told you that you were being charged with the murder of Juan Maya and the robbery, the theft and the kidnapping and the use of the credit cards; is that correct? A. Yes. Q. And he didn't promise you anything, did he? A. No. Q. And you agreed to talk with Detective Hackworth? A. Yes.

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Q. And you told him basically what had happened to Juan Maya at the time, didn't you? A. Yes Q. At that time you didn't know if you would be treated as a juvenile or an adult did you? A. No. Q. And no promises were made to you at all A. No. Q. You indicated right at that time that you would testify against Steven James and Larry Libberton; correct? A. Yes. Q. Now, subsequently sometime thereafter out at Durango your attorney, Robert Wertsching and I and Detective Davis met with you; is that correct? A. Yes. Q. Now, you weren't offered any kind of plea agreement at that time, were you? A. No. Q. And I told you I only want you to tell me the truth? A. Yes. Q. And you did talk to me at that time did you not? A. Yes. Q. In fact you gave a statement? A. Yes.
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Q. And you substantially told us exactly what had happened to Juan Maya and what you told the jury again today; is that correct? A. Yes. Q. Then later, Mr. Norton, you entered into a plea agreement with the State upon the advice of your attorney; is that correct? A. Yes. Q. ­ ­ and in that agreement you agreed to testify fully against Lawrence Libberton and Steven Craig at any hearing that is necessary? A. Yes. (R.T. 9/27/82, at 808­-12) Without objection, the prosecutor then entered

Norton's written plea into evidence. Id., at 812. Careful scrutiny of Norton's testimony concerning plea agreements shows that he made only three specific assertions concerning the subject: (1) that in speaking with detectives before he was appointed counsel Norton had implicated James in the murder with no promises made; (2) Norton had no plea agreement with the trial prosecutor at the time she interviewed him, and (3) that the written plea agreement was entered into after the trial prosecutor interviewed him and recorded his statement. When his trial testimony is put into its larger context it seems clear that Norton was never even asked much less testified about any earlier oral agreement. Moreover, Norton's actual trial testimony was thoroughly impeached on

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cross-examination. Norton admitted that he had lied so often to the detectives handling the case that he could not remember how many times he had lied. (R.T. 9/27/82, at 817­819. Norton even admitted that the recorded statement he had given to the trial prosecutor that was the basis of the written plea contained lies. Id., at 818-819. The post­conviction court dealt with this issue essentially as it had before, by assuming there was an oral agreement but that it was so minimally important as to be harmless. As in the first claim, Petitioner relies on Rule 32.1 (e) for the granting of relief. In order to establish a colorable claim he must again present newly discovered material facts that would have likely altered the verdict or sentence. Petitioner claims that the prosecutor's failure to correct Norton's "false" testimony (that there was no deal before he made his statement on December 29, 1991) denied him due process of law. He also argues that the prosecutor exacerbated both the effect of the false testimony and her alleged error by not correcting his motive to lie when he made his statement because he had been given "no promises, nothing." The court assumes the existence of the plea agreement between Norton's attorney, Wertsching, and the "head of the juvenile division" before Norton made his statement to the prosecutor on December 29. The court also accepts that it is irrelevant whether the prosecutor, Myrna Parker, personally knew about the alleged agreement, as knowledge would be imputed to her, a point the state concedes. (Citation omitted.) The standard to be applied in determining whether to set aside a conviction that occurs after a trial in which the prosecution has knowingly used perjured or false testimony is found in the Agurs opinion. A new trial is required if "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." 427 U.S. at 103. This standard was restated by the Arizona Supreme Court in Bracy
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as requiring reversal if "there exists a reasonable likelihood that the false testimony could have affected the jury's verdict." 145 Ariz. at 528, 703 P.2d at 472. In applying this standard the court is again faced with the overwhelming independent evidence of Petitioner's guilt, including his confession to McIntosh and his own incredible testimony. Additionally, and as stated previously, the jury had substantial reason to question Norton's motives even without knowledge of the alleged agreement and any reasonable jury would simply have questioned Norton's plain motive for making his statements: the hope for just such an agreement. Finally, the jury was instructed that what the attorneys say is not evidence ­ ­ attorneys make arguments. The trial judge had a plethora of evidence to support the findings in the special verdict, aside from the testimony of witness Norton, concerning "especially heinous, cruel or depraved." For example, the victim, Juan May, was transported about 100 miles before he was killed. The trial judge knew the condition of the body, with all its wounds, and that the defendant bragged about the killing. Thus, there is no reasonable likelihood that either the testimony in question (Norton saying there was no deal before he made his statement on December 29, 1981) or the prosecutor's remarks to the jury in closing argument could have affected the jury's verdict, or the judge's sentence. The evidence against James was overwhelming, including the that James showed police where the body was hidden on his family's mining property; that James admitted punching Maya in the mouth and bringing him back to his trailer when Maya tried to flee; that he had talked a policeman out of giving him a ticket when the car was stopped while they were on the was to the murder scene; that after the killing James tried to forged a check on Maya's bank account; that he had confessed to McIntosh, and the deplorable state of Maya's body from the multiple beatings he had endured.
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The post­conviction judge employed the pertinent United States Supreme Court precedent in denying Claim 2 and there was certainly nothing unreasonable in its factual findings. This Court should uphold that decision. Claim 3. Petitioner asserts the State denied him his due process rights when the State prevented Martin Norton from testifying freely, and instead required him to testify consistent with the prior statements that he had made. James contends that he was denied due process because Norton had entered into a plea agreement with the prosecution containing a so-called consistency clause. (Pet. Merits Memo, at 14.) This is the same written plea agreement discussed in the two previous sections and entered into evidence by the prosecution. (Pet. Merits Memo, Ex. 4.) James has not cited, nor have Respondents located, any United States Supreme Court precedent holding that testimony by a defendant's accomplice who has entered into a consistency agreement violates the Due Process Clause of the Fourteenth Amendment. When a habeas court determines whether a state decision was contrary to, or involved an unreasonable application of, clearly established federal law, the term "federal law" refers only to United States Supreme Court precedent. Ramdass v. Angelone, 530 U.S. at 156, 165­66 (2000); Williams v. Taylor, 529 U.S. at 412­13 (2000); Williams, 529 U.S. 362, 381 (2000) (habeas relief may not be granted when U.S. Supreme Court has not broken sufficient legal ground on the issue advanced by petitioner); see also
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Van Tran, 212 F.3d at 1154 ("[W]e may not, of course, reverse a state court's decision simply because it is inconsistent with a rule established by a Ninth Circuit case"). Wood, 211 F.3d at 485 (under U.S.C. § 2254(d), federal habeas court is "without the power" to extend the law beyond Supreme Court precedent). James still seems to partially ground this claim on state law, specifically the Arizona Supreme Court's decision that so-called "consistency agreements" in plea agreements are not enforceable in state court. See State v. Fisher (III), 176 Ariz. 69, 74, 859 P.2d 179, 184 (1993). (Pet. Merits Memo., at 14.) The state post-conviction judge's ruling that Fisher is not retroactive, and does not apply to this case, is a state court decision concerning state law and is therefore binding on a federal habeas court. Moreover, federal habeas relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68. This Court should deny this claim because there is no clearly established federal law dealing with this issue.3 Claim 4. James alleges he was denied due process when the state allegedly vouched for the credibility of Martin Norton's testimony. James disingenuously contends he is now arguing the "vouching" claim he

25 ________________________ 26 27 28
3

To the extent James is actually making a state law claim under State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993) (holding consistency agreements unenforceable under Arizona law), the state post­court's ruling that Fisher does not apply retroactively would also be binding on a federal habeas court.
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allegedly exhausted before the Arizona Supreme Court: "Mr. James presented this Sixth Amendment claim to the state court in his direct appeal to the Arizona Supreme Court on June 30, 1983. The state court denied the claim on the merits." (Pet. Merits Memo., at 18.) Petitioner actually argued there were two different alleged examples of improper vouching and he raised them in two different state court proceedings below. In the "Appellant's Opening Brief" on direct appeal to the Arizona Supreme Court James first argued: The prosecutor called Martin David Norton as a primary witness against Appellant James. In an attempt to "draw the sting" from the fact of Norton's agreement with the state and to bolster his credibility with the jury, Norton was asked the following questions on direct examination: MS. PARKER: Now, subsequently sometime thereafter out a Durango your attorney, Robert Wertsching and I and Detective Davis met with you; is that correct. NORTON: Yes. Q. Now, you weren't offered any kind of plea agreement at that time, were you? A. No. Q. And you did talk to me at the time, did you not? A. Yes. (Appellant's Opening Brief, at 26.) This is a deliberately condensed version of the pertinent questions that the prosecutor asked Norton already set out in the
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immediately preceding section, supra. James argued that this consisted of improper vouching­because introducing the contents of his plea agreement implied that the prosecution believed Norton's testimony was true. Id., at 27. He further argued that this was error because Norton had yet to be impeached by the defense on cross-examination. Id., at 28. James' brief failed to mention that the prosecution had questioned Norton on these matters and had admitted the written plea agreement into evidence without any defense objection. (R.T. 9/27/82, at 812.) Nor did James mention that defense counsel first attacked Norton's credibility, explicitly saying Norton had told several different stories to the police and had "lied to the prosecutor" during his opening statement. (R.T. 9/20/82, at 78.) The Arizona Supreme Court denied the claim: James argues that the prosecutor improperly vouched for the state's most important witness on direct examination, and James claims this constitutes reversible error. Martin Norton was the state's only eyewitness. At the time of the crime he was fourteen years old, and he was a participant. On direct examination the prosecutor elicited that Norton was then given a plea agreement in exchange for his truthful testimony. James argues that the state portrayed itself as the guarantor of the truthfulness of Norton's testimony. We find this issue controlled by State v. McCall, 139 Ariz. 147, 159, 932 P.3d 920, 932 (1983) (state may elicit such testimony on direct examination), and the claim is without merit. 141 Ariz. at 146, 685 P.2d at 1298. Interestingly, McCall, supra, cites United States v. Robison, 618 F.2d 530,
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535-36 (1980), which in turn sets out the very different approaches that the federal circuit courts have taken to this precise issue. Id., at 535-36. James does mention United States v. Berger, 295 U.S. 78, 88 (1935), for the general proposition that prosecutors should avoid "improper suggestions, insinuations, and especially assertions of personal knowledge." (Pet. Merits Memo, at 1821.) However, he cites no controlling United States Supreme Court precedent on this issue, and Respondent's have found none. Hence, the Court should dismiss this claim. 4

Claim 5. James claims he was denied due process when the state prevented Daniel McIntosh from testifying freely, and instead, required him to testify consistent with his previous deposition testimony. Claim 6. James claims he was denied due process when the state presented false testimony by Daniel McIntosh. These claims will be discussed together because they are factually related and equally frivolous. James again erroneously asserts that state court decisions are not entitled to

22 the deference mandated by AEDPA when the judge does not hold an evidentiary
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4

To the extent James is also arguing that the prosecutor, albeit innocently, 25 vouched for Norton's credibility in closing argument, the third post-conviction court held that the overwhelming nature of the evidence against James; his 26 confession to McIntosh; the fact that the jury knew the nature of Norton's plea deal, and the "plethora of evidence" supporting the finding that the murder was 27 "especially, cruel, heinous, or depraved" showed it could not have affected the verdict or sentence. (Ex. A, at 14). 28
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1 hearing in adjudicating these claims. Lambert v. Blodgett, 393 F.3d at 969-70. 2 3 4 Daniel McIntosh or otherwise "forced" him to testify consistently with a previous 5 deposition he gave nine months prior to James' trial. (Pet. Merits Memo, at 21, 6 24.)5 For obvious reasons, James never again even mentions this earlier 7 8 deposition, given on December 28, 1981­­with one of his own lawyers present. 9 (Ex. B, at 2.) 10 James argues: 11 McIntosh's testimony makes a difference for this reason. He 12 testified that Mr. James and the other persons in his trailer on 13 the evening of the homicide were doing "nothing" in the hours before Maya arrived, and that Mr. James drank only a 14 "couple" of beers that evening. But, in his 1993 deposition, 15 McIntosh revealed that Mr. James drank about 12 beers, smoked pot, and ingested LSD while in his trailer on the 16 evening of the homicide. 17 (Pet. Merits Memo, at 23.) James complains that except for the alleged state 18 19 20 21 22 23 coercion of McIntosh this "evidence" would have been "revealed" and would have bolstered his mitigation case­­possibly even getting him a new trial. Id.
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5

The thrust of both claims is that the prosecution had an agreement with

James bolsters this claim by citing two pages of a deposition McIntosh 24 gave twelve years later, on November 15, 1993, in the Libberton case. (Pet. Merits Memo, at 23) McIntosh's answers to some very leading questions suggest 25 that he understood he could be prosecuted for perjury if his trial testimony differed from the deposition he had given under oath. (Pet. Merits Memo, at Ex. 26 C, at 56-58.) However, James fails to quote an earlier passage in that later deposition which the prosecutor makes it plain that she was only interested in 27 truthful testimony. McIntosh understood he was expected to testify truthfully, and that he could only be prosecuted for perjury if he lied. (Id., at 28-25). 28
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These allegations make no sense. This is so because McIntosh's trial testimony, i.e., that James only drank a "couple" of beers on the night he murdered Juan Maya, is wildly inconsistent with his earlier deposition. McIntosh's deposition reads, in pertinent part, as follows: Q. Who went to buy the beer? A. (McIntosh) Me, Larry and Steve [James], we all walked to the store and we bought the beer, and then we all walked back to the trailer. Q. How much beer did you have? A. I think it was about a case, I'm not sure, I think it was about two 12 packs, but I don't really know for sure. Q. And about how many beers did you yourself drink? A. Eight or nine. Q. Did you see how many the other two drank? A. Well, we were all having a little contest with the drinking of beer, everyone downed their beer at the same time, and then the last person to down their beer would have to get up and get the other two another beer, and that's the way we worked it. Q. So you all drank the same amount? A. Yeah, about the same. Q. At about what time did you leave to get the pot? A. The pot was already there. Q. How much pot was there? We are talking about marijuana, aren't we?
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A. Yes, marijuana. There was probably one marijuana cigarette and a couple of hits out of a bong, that was about it. Q. And did you all smoke the marijuana? A. Yes ma'am, every one of us did. (Ex. C, at 11.) Later in that deposition, McIntosh explained the high potency of the "Moon Beam Green" marijuana they were smoking. Q. Did the marijuana affect you, was it good quality marijuana? A. Yeah, it was ­­ it was some sort of Moon Beam Green, I think is what it's called, some goofy name, but it's ­­ but it sells for over a hundred dollars an ounce, and its pretty good. You smoke one number between three people and you're all going to get stoned. Id., at 40. To reiterate James' own lawyer was present at this deposition. Id., at 2. The post­conviction judge correctly held that nothing in the McIntosh's deposition indicates that he had any agreement with the state. "There is no indication that McIntosh had a "deal" with the state "to testify," or that he did not testify voluntarily. Most importantly, there is no evidence that he testified about the murder in a manner other than the way it was related to him by the defendant. (Ex. A, at 20.) There is nothing unreasonable or contrary to established federal precedent

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in this finding. The Court should affirm it. Claim Eight. James claims his right against self-incrimination was violated when police supposedly continued to interrogate him after he had asked for a lawyer. James contends the trial court violated his rights when it declined to suppress his voluntary offer to show officers where Juan Maya's body was hidden, and to suppress the actual body itself. (Pet. Merits Memo, at 25.) When James was arrested he concedes he was informed of the murder charge and of his rights under Miranda v. United States, 384 U.S. 436 (1966). 141 Ariz. at 144, 685 .2d at 1296. Id. The Superior Court Suppression Hearing. Only police Detective Russell Davis and Sergeant Michael Midkiff

16 testified at the suppression hearing concerning James interview of November 19, 17 1981. (R.T. 8/27/82 at 41­42.) Sergeant Midkiff testified that he had absolutely 18 no contact with James while Detective Davis conducted the interview alone in a 19 20 second floor interview room at the police station. (R.T. 9/3/82, at 5.) The door 21 was closed and the sergeant could neither see into the room nor hear what either 22 Davis or James was saying. (R.T. 8/27/82, at 41­42.) About twenty minutes into 23 24 the interview Detective Davis began to open the door to the interview room 25 generally indicating that questioning was over, and Sergeant Midkiff approached 26 the door. Id. Midkiff then asked Detective Davis, not James, if the defendant 27 28 was going to show police where the body was. Id., at 43.
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1 2 3

Sergeant Midkiff testified at the suppression hearing that after he asked Davis that question, Davis may have said that James wanted an attorney.

4 Midkiff was certain, however, that after he asked Davis the question James 5 spontaneously said that he would show the police the body. Id., at 45-48. 6 Before he had asked Davis the question, Midkiff did not know that the defendant 7 8 had requested an attorney while in the interview room, nor whether James had 9 made incriminating statements. Id., at 45. 10 Detective Davis testified that he interviewed James alone in the room with 11 12 the door closed after he gave James his Miranda rights from the standard card. 13 They spoke about 19 minutes before James asked for an attorney. James had 14 asked what would happen if the were found guilty. The detective replied that 15 16 that was up to the court, and James repeated his request for an attorney. Here, 17 James vacillated, saying at first that he did not need one, then changing his mind 18 and saying that he thought he did need one. At that point, Detective Davis 19 20 terminated the interview, rose from his seat, and walked to the door. (R.T. 21 9/3/82, at 5­10.) As Davis was opening the door, Sergeant Midkiff approached 22 from the hallway. Davis described this as simultaneous. Face­to­face with him 23 24 Midkiff asked Davis, "Did he tell you where the body was? Id. Davis testified 25 that Midkiff was looking right at him, not at James. (Id., at 12, 13.) Davis then 26 told Midkiff that James had requested an attorney, but James, from behind 27 28 Davis, spontaneously said that he would show them where the body was. Id.
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1 After this, neither Davis nor anyone else in his presence asked James any more 2 3 4 Id., at 13-14. This was the uncontroverted suppression hearing testimony upon 5 which the judge based his ruling denying suppression. Id. 6 The Arizona Supreme Court Decision On Suppression of Statement/Body. 7 James not only wanted the trial court to suppress his statement that he 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fifth Amendment, or that Sergeant Midkiff's question was the functional equivalent of custodial interrogation. See Edwards v. Arizona, 451 U.S. 477
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questions. The officers merely allowed James to direct them to the mine shaft.

would take the detectives to the body but also suppress Juan Maya's body itself. This, even though both Norton and McIntosh were already

"cooperating" and both knew enough about the crime scene that police would inevitably discover it. Norton, from actually being there and helping kill Maya. McIntosh, from James telling him about the murder and that Maya's remains were in a mine shaft near Salome owned by his parents. (R.T. 9/27/82, at 140­144.) This Court applies a presumption of correctness to factual and credibility determinations made by state trial and appellate courts. Bragg, 242 F.3d at 1087 (citing Sumner v. Mata, 449 U.S. 539, 546­47 (1981)). James asked the Arizona Supreme Court to overturn the trial court's ruling because of alternative theories: either the police directly asked James the question about the body's location, i.e., engaged in further interrogation in violation of his

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(1981); Rhode Island v. Innis, 446 U.S. 291 (1980).6 See also Oregon v. Bradshaw, 462 U.S. 1039 (1983). James argues that the right counsel was violated by the police. When James was arrested he was informed of the murder charge and his rights. See Miranda v. Arizona, 384 U.S. 436 (1966). James said he understood his rights and he talked with a Detective Davis for approximately nineteen minutes in a small, windowless room. Defendant does not allege that the statements he made during this interview were obtained in violation of his constitutional rights. The judge who presided over the voluntariness hearing, who was not the trial judge, found these statements voluntarily made, and we agree that these statements were taken in conformity with Miranda, supra. (Citations omitted.) At the nineteen minute mark of the interview, James asked what would happen to him to which Davis responded "it's up to the courts." James then asked for an attorney. Instead of immediately ceasing the interrogation (Citations omitted), Davis told James he only wanted the facts and to give James the opportunity to tell his side of the story. James hesitated, said he did not need an attorney, then changed his mind and asked a second time for an attorney. Because James said nothing he was not harmed. When James asked for an attorney the second time, Davis, who was seated across from James, rose, turned, walked to the door and opened it. At that moment, Detective Midkiff arrived at the door and opened it. At that moment Midkiff arrived at the door. Midkiff faced Davis and asked: "Did he tell you where the body is?" There were two simultaneous responses: Davis said that James had asked for counsel; James volunteered that he would tell them where the body was located. James claims that this statement should have
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6

During his trial testimony James contended that Sgt. Midkiff's question: "Is he going to take us to the body?" was directed at him, i.e., James, and that he then agreed to take the police to Juan Maya's body. (R.T. 9/28/82, at 966.)
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been suppressed and the fruits of that statement, the body, should also have been suppressed. Incriminating statements are not admissible unless Miranda warnings are administered. (Citations omitted.) If Miranda warnings were administered, the next requirement for admissibility is voluntariness. (Citations omitted.) Because James asked for an attorney before he made his statement Edwards, supra, and its progeny are controllin