Free Memorandum - District Court of Arizona - Arizona

EXHIBIT 6
Case 2:OO—cv—O1118—NVW Document 108-9 Filed O3/28/2007 Page1 of 4

i
1 GRANT WOODS
Arromvzw Gewmuu.
f JACK ROBERTS
3 ASSISTANT A'1’I‘0R.NEY GENERAL
Cmmrmu. APPEALS Sscnow
4 1275 W. WASHINGTON ‘
PHOENIX, ARIZONA 85007-2997 ’
5 Tm.1;z>r·1om-:: (602)s42-4686
(STATE BAR Numan 005149) “
6
Arromzvs Fox RESPONDENTS .
7
s UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
10
11 STEVEN CRAIG JAMES, 2 ·
12 Psrmomax, CIV 93-0869-PHX-RGS
13 —vs—
RESPONSE TO MOTION FOR LEAVE TO
14 SAMUEL A. LEWIS, et al., CONDUCT DISCOVERY
i`y15 Respownewrs.
I/I 16
17 For reasons expressed in the following memorandum of points and authorities, Respondents _
18 respectfully move the Court to deny Petitioner’s motion for leave to conduct discovery.
19 DATED this 10th day of August, 1993. J
gg Respectfully submitted,
21 GRANT WOO • .
I Arronmzv `
22 » 4 ’ 1 .
` . K • • · • . I _
23 / Assxsrmr Arronwe · - ,
24 Arromvevs Fox RESPONDENTS
zs
26
27 6
Case 2:OO—cv—O1118—NVW Document 108-9 Filed O3/28/2007 Page 2 of 4

1 MEMORANDUM or roms Ann Aurnonrngss
l 2 I
¢ 3 DISCRETIONARY NATURE OF DISCOVERY
4 As Petitioner _recognizes at page 3 of his motion, Rule 6(a) of the Rules Governing § 2254 Cases
5 permits this Court to authorize discovery in the exercise of this Court’s discretion and for good cause
5 shown, but not otherwise} The Supreme Court has indicated that where a Petitioner sets forth specyic
J 7 allegations, which, if proved, may enable himto demonstrate illegal confinement, federal courts may
j 3 use their discretion to provide appropriate discovery. Harris v. Nelson, 384 U.S. 286, 300, 89 S. Ct.
9 1082, 1091, 22 L. Ed. 2d 281, rehearing denied, 394 U.S. 1025, 89 S. Ct. 1623, 23 L. Ed. 2d 50
10 (1969). Circuit courts have recognized the requirement of spechic allegations. Lynott v. Storey, 929
11 F.2d 228, 232-33 (6th Cir. 1991). However, bald assertions and conclusory allegations do not
12 provide sufficient ground to warrant requiring the State _to respond to discovery. Zettlemoyer v.
13 Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991). A state prisoner is not entitled to go on a fishing trip
14 via discovery in hopes of finding something that might help his case. United States v. Nelson, 465
ih", 15 F.2d 1380, 1381 (9th Cir. 1972). See also, Munoz v. Keane, 777 F. Supp. 282, 287 (S.D. N.Y.
DJ 16 1991) (petitioners were not entitled to invoke discovery in collateral proceedings on the basis of their
17 generalized statements about the possibility that the prosecution may have withheld exculpatory Brady
18 material).
19 In light of the discretionary nature of discovery in these collateral proceedings, and the
· 20 requirement that the petitioner set forth specific allegations in order to avoid fishing expeditions,
21 Petitioner’s request should be denied. Petitioner wants to see everything in the State’s files that has
22 anything to do with himself, Lawrence Libberton and Martin Norton (codefendants), and Daniel
Q 23 MacIntosh} The wording of Petitioner’s motion for leave to conduct discovery clearly indicates it is
24
25 1. Petitioner was convicted of fi.tst·degree murder and kidnapping by the eyewitness testimony of an accomplice. The
g Arizona Supreme Court afhrmed his convictions and the death penalty. State v. James, 141 Ariz. 141, 685 P.2d 1293,
1 26 een. denied, 469 U.s. 990 (1984).
. 27 2. Petitioner states at pages 3 and 5 of his memorandum in support of his motion that the State has not complied with I
°`y his informal request to inspect certain documents. Counsel for Petitioner did not contact undersigned counsel, who is
.,/28 personally in charge of this case, because undersigned counsel was on vacation from July 8 through July 20. If Petitioner’s
2 l
· Case 2:00-cv-01118-NVW Document 108-9 Filed O3/28/2007 Page 3 of 4 ·

1 Reyes, ____ U.S. _____, 112 S. Ct. 1715, 1721, 118 L. Ed. 2d 318 (1992). The only exception to the
2 2 cause and prejudice requirement is a colorable showing of factual innocence, which at times has been
3 called a fundamental miscarriage of justice. Coleman v. Thompson; McCleslcy v. Zanr.
4 As Respondents have indicated, at no time in state court did Petitioner intimate that the State had
5 not complied with the rules of discovery, which required disclosure to the defense of any material
Vi 6 [ending to negate the guilt or punishment of the defendant. Therefore, without demonstrating {
legitimate cause for never having raised the issue in state court, and actual prejudice, Petitioner could I
not base a claim for relief on anything he speculatively might discover by fishing through the state’s
iiles. For that reason, he is not entitled to discovery on that issue. With respect to the further
`. conjecture that trial counsel might not have discovered certain mitigation, the trial court already held
Petitioner precluded from attacking his trial counsel in the first post-conviction petition, and new i
.: a .
j· _2 counsel in the second post-conviction petition deliberately by·passed the opportunity to investigate the
area of mitigation. Thus, Petitioner would have to satisfy the cause and prejudice requirement in order i
to obviate that double procedural default, or demonstrate a fundamental miscarriage of justice. The {
;%_ record and the opinion of the Arizona Supreme Court show that Petitioner was convicted upon the eye- i
`6 witness testimony of one of his accomplices. Petitioner took the stand and claimed that he acted under
duress, but the jurors did not believe him. It is thus clear that he could not make a colorable showing
of factual innocence or demonstrate a fundamental miscarriage of justice.
Although ineffective assistance of counsel may constitute the requisite cause to excuse procedural ]
default, that principle holds true only when the defendant had a constitutional right to effective
assistance _ of counsel. As Respondents have demonstrated, Petitioner never challenged the
representation of Paul Lazarus, his appellate counsel, who, in turn, did not challenge the representation
A of trial counsel. The Supreme Court has made it quite clear that there is no constitutional right to
effective assistance of counsel in post-conviction proceedings, and the Ninth Circuit has followed that
" deeision. Coleman v. Thompson; Bonin v. Vasquez, 92-56299 (9th Cir., July 16, 1993). Therefore,
Petitioner could not establish the required cause by faulting either of his two post-conviction counsel.
if a state prisoner fails to establish cause for his procedural default, the federal court does not have
` 28 to consider the question of actual prejudice. Smith v. Murray, 477 U.S. 527, 533, 106 S. Ct. 2661,
9
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