Free Additional Attachments to Main Document - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) CARI MCCONEGHY-HARRIS ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 020572) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
GREGORY ALIK PIKE aka, GREGORY WATERMAN,
Petitioner,

CIV 02­2368­PHX­JWS (DKD) ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

-vsTERRY L. STEWART, et al.,
Respondents.

Respondents, pursuant to Rules 5 and 11 of the Rules Governing § 2254

17 Cases, and this Court's orders of December 14, 2006, January 19, 2007, and March 18 21, 2007, hereby answer the Petition for Writ of Habeas Corpus. For the reasons 19 set forth in the following Memorandum of Points and Authorities, Respondents 20 respectfully request that the petition be denied and dismissed with prejudice. 21 22 23 24 25 26 27 28
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DATED this 7th day of May, 2007.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/CARI MCCONEGHY-HARRIS ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

1 2 3 I.

MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF TRANSCRIPTS AND RECORD. Pursuant to Rule 5, Rules Governing § 2254 Cases, Respondents have

4 copied and submitted as exhibits the following portions of the state court record: 5 (1) all available and relevant pre-trial, trial, and sentencing transcripts from 6 Maricopa County Superior Court cause number CR 93­08949, including R.T. 7 09/23/94 (Exhibit A), R.T. 10/31/94 (Exhibit B), R.T. 11/09/94 (Exhibit C), R.T. 8 11/14/94 (Exhibit D), R.T. 11/15/94 (Exhibit E), R.T. 11/16/94 (Exhibit F), R.T. 9 11/17/94 (Exhibit G), R.T. 11/21/94 (Exhibit H), R.T. 11/22/94 (Exhibit I), R.T. 10 11/23/94 (Exhibit J), R.T. 11/28/94 (Exhibit K), R.T. 11/29/94 (Exhibit L), R.T. 11 11/30/94 (Exhibit M), R.T. 12/01/94 (Exhibit N), R.T. 12/05/94 (Exhibit O), R.T. 12 12/06/94 (Exhibit P), R.T. 12/07/94 (Exhibit Q), R.T. 12/12/94 (Exhibit R), R.T. 13 12/13/94 (Exhibit S), R.T. 12/15/94 (Exhibit T), R.T. 12/19/94 (Exhibit U), R.T. 14 12/20/94 (Exhibit V), R.T. 02/10/95 (Exhibit W); (2) the index to the record on 15 direct appeal (Exhibit X) and those portions of the actual instruments in the record 16 on appeal that are relevant to the present proceedings (Exhibits Y­LLL); (3) the 17 various briefs, petitions, motions, and court orders from Petitioner's direct appeal 18 (Exhibits MMM­TTT); and (4) the index to the record on appeal in the post19 conviction relief proceedings (Exhibit UUU) as well as those portions of the post20 conviction relief pleadings and orders that are relevant to the present proceedings 21 (Exhibits VVV­QQQQ). 22 23 II. FACTUAL AND PROCEDURAL BACKGROUND. On November 3, 1993, a Maricopa County Grand Jury returned an

24 indictment charging Petitioner with Count I, kidnapping, a class 2 dangerous 25 felony, and Count II, first-degree murder, a class 1 dangerous felony. (Exhibit X, 26 Index to R.O.A.; Exhibit Y, R.O.A., Items 1, 3, 7, 9, Charging Documents.) The 27 indictment alleged that the murder was either premeditated, or occurred while 28 Petitioner and others kidnapped and repeatedly stabbed the victim, Christopher
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1 Allen McGee. (Id.) Petitioner asserted a duress defense. (Exhibit Z, R.O.A., Item 2 14, Notice of Defenses.) 3 Prior to trial, there were numerous motions and orders by the Superior Court

4 addressing the issue of whether Petitioner should be joined or severed from trial 5 with his codefendants Joseph Michael Assyd, Christopher Reischman, and Jeffrey 6 Scott Drew. (Exhibit A, R.T. 09/23/94, at 3­30; Exhibit B, R.T. 10/31/94, at 3­18, 7 28­30; Exhibit CC, R.O.A., Item 22, Motion to Sever; Exhibit LL, R.O.A., Item 8 36, Motion for Joinder; Exhibit MM, R.O.A., Item 37, Motion to Continue; Exhibit 9 NN, R.O.A., Item 39, Response to Joinder Motion; Exhibit OO, R.O.A., Item 41, 10 Reply; Exhibit PP, R.O.A., Item 42, M.E., Joinder Order; Exhibit TT, R.O.A., Item 11 47, M.E., Severance.) Based on the fact that the defendants were making mutually 12 exclusive defenses, and that some of the statements made by the defendants could 13 not be admitted in trials against the other defendants, the trial court ultimately 14 severed the cases. (Exhibit B, R.T. 10/31/94, at 30; Exhibit F, R.T. 11/16/94, at

15 81; Exhibit Z, R.O.A., Item 14, Notice of Defenses; Exhibit TT, R.O.A., Item 47, 16 M.E., Severance.) 17 The following facts were established at Petitioner's trial. (Exhibit AAA,

18 R.O.A., Items 55, 58, 59, 61, 69, 77, 78, 82, 83, 90, 100, 105­107, 123, 127­129, 19 140, M.E., Jury Trial Days.) On or between June 15, 1993, and July 15, 1993, 20 Petitioner along with Assyd, Reischman, and Drew participated in kidnapping and 21 beating and stabbing to death Christopher McGee. (Exhibit V, R.T. 12/20/94, at 22 11­13.) 23 On the evening this event took place, Petitioner and his girlfriend, Michelle 24 Corbett, were living at Assyd's apartment at 8603 North 22nd Avenue, in Phoenix, 25 Arizona. (Exhibit G, R.T. 11/17/94, at 47; Exhibit I, R.T. 11/22/94, at 40; Exhibit 26 L, R.T. 11/29/94, at 79; Exhibit N, R.T. 12/01/94, at 46, 53; Exhibit O, R.T. 27 12/05/94, at 38, 97; Exhibit P, R.T. 12/06/94, at 88.) McGee came to the apartment 28 with his girlfriend, Sarah Rice, in order to finish a tattoo he had started on a
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1 previous date on Petitioner's arm. (Exhibit G, R.T. 11/17/94, at 44­47, 49, 55; 2 Exhibit H, R.T. 11/21/94, at 21; Exhibit I, R.T. 11/22/94, at 15; Exhibit N, R.T. 3 12/01/94, at 48­50, 52; Exhibit P, R.T. 12/06/94, at 89­90, 93.) Other people were 4 present in the apartment that day including, Michele Corbett, John Hooker,1 5 Kristen Kohler, Ed Mose, and persons named Jason, Tammy, Anastasia, and Tresa 6 Doyle. (Exhibit G, R.T. 11/17/94, at 48, 54­55, 59, 61, 66, 74, 81; Exhibit H, R.T. 7 11/21/94, at 6, 12, 14, 20; Exhibit I, R.T. 11/22/94, at 15­16, 18, 40­42, 49, 54; 8 Exhibit N, R.T. 12/01/94, at 50, 77; Exhibit P, R.T. 12/06/94, at 90, 102.) While 9 McGee was working on Petitioner's tattoo, there was a knock at the door. (Exhibit 10 G, R.T. 11/17/94, at 57; Exhibit I, R.T. 11/22/94, at 19; Exhibit N, R.T. 12/01/94, at 11 57; Exhibit P, R.T. 12/06/94, at 95.) Michelle answered the door, and several 12 people, including Reischman (who had a gun) and Drew, entered the apartment. 13 (Exhibit G, R.T. 11/17/94, at 57­58, 61; Exhibit H, R.T. 11/21/94, at 6; Exhibit I, 14 R.T. 11/22/94, at 45; Exhibit N, R.T. 12/01/94, at 57­58; Exhibit P, R.T. 12/06/94, 15 at 103.) At the same time, Petitioner stood up and moved out of the way, and 16 Assyd knocked the victim to the ground and repeatedly struck him and screamed at 17 him. (Exhibit G, R.T. 11/17/94, at 57­58, 62­64; Exhibit N, R.T. 12/01/94, at 58­ 18 59; Exhibit P, R.T. 12/06/94, at 95.) Once the victim was down on the ground, 19 Petitioner, Reischman, and Drew joined Assyd in pummeling him. (Exhibit G, R.T. 20 11/17/94, at 59, 63­64, 76; Exhibit N, R.T. 12/01/94, at 59­60; Exhibit P, R.T. 21 12/06/94, at 101.) 22 Petitioner then picked the victim up and tied him to a chair. (Exhibit G, R.T.

23 11/17/94, at 64­65; Exhibit H, R.T. 11/21/94, at 39; Exhibit I, R.T. 11/22/94, at 27, 24 29, 43, 60; Exhibit N, R.T. 12/01/94, at 65, 81.) For a period of several hours, the 25 26
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1

John Hooker was a taxi driver who brought the victim to the apartment that day. 27 (Exhibit H, R.T. 11/21/94, at 16; Exhibit I, R.T. 11/22/94, at 16; Exhibit P, R.T. 12/06/94, at 93.) 28
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1 victim was then slapped, kicked, beaten and taunted by the codefendants, who 2 alternately had knives and or guns, as well as other people who were coming and 3 going from the apartment. (Exhibit G, R.T. 11/17/94, at 73, 76­77; Exhibit H, R.T. 4 11/21/94, at 6­7, 13, 15, 20, 23, 27, 37, 39, 41, 96; Exhibit I, R.T. 11/22/94, at 44­ 5 49, 55; Exhibit N, R.T. 12/01/94, at 61­63, 67, 78; Exhibit O, R.T. 12/05/94, at 49, 6 53­54; Exhibit P, R.T. 12/06/94, at 104.) Kristen Kohler and Tresa Doyle both 7 testified that Petitioner was one of the people who possessed a gun during one time 8 or another while in the apartment that night. (Exhibit I, R.T. 11/22/94, at 45, 47­ 9 48, 61, 77; Exhibit P, R.T. 12/06/94, at 83.) These actions were taken against the 10 victim for his believed involvement in an assault and robbery committed with his 11 girlfriend and another associate against the widow of a Hell's Angels member. 12 (Exhibit G, R.T. 11/17/94, at 68, 72, 79; Exhibit H, R.T. 11/21/94, at 17­19, 27­29; 13 Exhibit I, R.T. 11/22/94, at 20, 26, 58­59, 88; Exhibit K, R.T. 11/28/94, at 50; 14 Exhibit N, R.T. 12/01/94, at 76, 78; Exhibit P, R.T. 12/06/94, at 88, 105.) 15 As punishment for her part in the prior assault and robbery, Sarah was forced

16 by Assyd at knifepoint to remove all her clothes and parade around naked in front 17 of everyone there. (Exhibit G, R.T. 11/17/94, at 67­73; Exhibit I, R.T. 11/22/94, at 18 51; Exhibit N, R.T. 12/01/94, at 78­79.) At Assyd's command, Sarah then hit the 19 victim and yelled at him for "all the pain" he was putting her though. (Exhibit G, 20 R.T. 11/17/94, at 73, 76; Exhibit I, R.T. 11/22/94, at 51, 79; Exhibit N, R.T. 21 12/01/94, at 78­80.) Assyd told Sarah that "things like what [the victim] did 22 people die over." (Exhibit G, R.T. 11/17/94, at 72.) Assyd also taunted the victim 23 with the comment, "[y]ou know you're going to die." (Exhibit G, R.T. 11/17/94, at 24 78.) It was also suggested to the victim that he say good-bye to Sarah as he would 25 not be seeing her again. (Exhibit G, R.T. 11/17/94, at 79; Exhibit R, R.T. 12/12/94, 26 at 26.) 27 Petitioner heard Assyd state that the victim "had to die for what he had

28 done." (Exhibit S, R.T. 12/13/94, at 50, 56.) So Petitioner convinced Assyd to
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1 allow the victim to have "one last line" of "dope" before they left the apartment. 2 (Exhibit R, R.T. 12/12/94, at 27.) Petitioner then donned a pair of gloves, saying "I 3 like gloves, cuz there's no evidence." (Exhibit H, R.T. 11/21/94, at 8, 40; Exhibit I, 4 R.T. 11/22/94, at 61, 77.) Next, Petitioner, Assyd, Reischman, and Drew discussed 5 "who's going," and then escorted the victim to Reischman's girlfriend's car 6 (Kristen Kohler's car). (Exhibit H, R.T. 11/21/94, at 9­10, 12; Exhibit I, R.T. 7 11/22/94, at 29, 31, 53, 67; Exhibit N, R.T. 12/01/94, at 82, 87; Exhibit Q, R.T. 8 12/07/94, at 46; Exhibit T, R.T. 12/15/07, at 11­12.) 9 The four men placed the victim in the backseat between Petitioner and

10 Assyd, and with Reischman and Drew in the front, proceeded out to a secluded 11 spot in the desert, on a dirt road near 1100 East Alameda. (Exhibit I, R.T.

12 11/22/94, at 55­56; Exhibit J, R.T. 11/23/07, at 10, 20, 24; Exhibit K, R.T. 13 11/28/94, at 42, 45; Exhibit L, R.T. 11/29/94, at 50­52; Exhibit O, R.T. 12/05/94, 14 at 54; Exhibit Q, R.T. 12/07/94, at 45.) While being transported, the victim 15 produced a pocket knife and slashed Assyd across the wrist, causing Assyd to grab 16 his own knife and stab the victim in the abdomen. (Exhibit H, R.T. 11/21/94, at 11, 17 43­44, 54; Exhibit K, R.T. 11/28/94, at 43; Exhibit Q, R.T. 12/07/94, at 59.) 18 During the scuffle, Petitioner later told Sarah that he saw the victim "go after 19 Mike," and he "had to do something, so [he] stuck him in the side."2 (Exhibit H, 20 R.T. 11/21/94, at 45.) Thus, Petitioner had blood all over the side of his shirt. 21 (Exhibit H, R.T. 11/21/94, at 44­47, 50; Exhibit I, R.T. 11/22/94, at 63; Exhibit K, 22 R.T. 11/28/94, at 44; Exhibit N, R.T. 12/01/94, at 92; Exhibit Q, R.T. 12/07/94, at 23 59.) Assyd passed his gun to Petitioner during the transport and Petitioner took the 24 .357 Magnum and placed it under the seat. (Exhibit L, R.T. 11/29/94, at 7, 13; 25 Exhibit Q, R.T. 12/07/94, at 47.) 26 ________________________ 27 28 Petitioner made a stabbing motion while he was describing these events. (Exhibit H, R.T. 11/21/94, at 48.)
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1

When the group finally stopped, Assyd and at least one other person

2 removed the victim from the car, who again began to struggle. (Exhibit Q, R.T. 3 12/07/94, at 52.) Assyd and Drew, who both had knives, proceeded to stab and 4 slash McGee numerous times in the upper torso, neck, and back until McGee was 5 either dead or unconscious. (Exhibit J, R.T. 11/23/07, at 35; Exhibit K, R.T. 6 11/28/94, at 46­47; Exhibit Q, R.T. 12/07/94, at 53, 58.) Petitioner then helped 7 drag the body to a pile of trash and cover him with palm fronds. (Exhibit J, R.T. 8 11/23/07, at 27; Exhibit K, R.T. 11/28/94, at 49; Exhibit Q, R.T. 12/07/94, at 60­ 9 61.) Reischman wanted to fire his hand gun into the victim after he was covered 10 with trash, but was not permitted to do so by Assyd. (Exhibit K, R.T. 11/28/94, at 11 47­48; Exhibit Q, R.T. 12/07/94, at 61.) 12 The foursome then returned to the apartment, where Petitioner changed out

13 of his bloody shirt and took a shower. (Exhibit H, R.T. 11/21/94, at 43­45; Exhibit 14 I, R.T. 11/22/94, at 62­64; Exhibit K, R.T. 11/28/94, at 50; Exhibit N, R.T. 15 12/01/94, at 89­90, 96; Exhibit Q, R.T. 12/07/94, at 68.) Everyone who

16 participated in the murder as well as the others who had been present at the 17 apartment that night remained silent about the occurrence for several weeks, until 18 after the body was discovered and police began investigating the murder. (Exhibit 19 I, R.T. 11/22/94, at 5, 65, 73­74; Exhibit N, R.T. 12/01/94, at 91, 98; Exhibit Q, 20 R.T. 12/07/94, at 62, 65­67, 72.) 21 McGee's body was accidentally discovered on July 31, 1993, by Mike

22 Ghidotti and Ike Robinson, when they were attempting to dump some palm leaves 23 in the desert. (Exhibit J, R.T. 11/23/07, at 10­13, 21.) After discovering the 24 decomposing body, the pair flagged down a passing car and asked the driver to call 25 the police. (Exhibit J, R.T. 11/23/07, at 15.) 26 Officer Jesse Robinson was on routine patrol in the Lake Pleasant area,

27 when he initially received a call to respond to a report of someone illegally 28 dumping. (Exhibit J, R.T. 11/23/07, at 20.) Dispatch soon updated the call to
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1 include a report that the "illegal dumpers" had discovered a body. (Exhibit J, R.T. 2 11/23/07, at 20.) The police found victim's body partially covered by palm fronds, 3 draped by clothing riddled with apparent knife holes, and bound with ligatures 4 binding the hands to the body in a "mummified" fashion. (Exhibit J, R.T. 11/23/07, 5 at 32, 34­37; Exhibit L, R.T. 11/29/94, at 57; Exhibit N, R.T. 12/01/94, at 11.) Dr. 6 Frances Owl­Smith performed the autopsy and determined that the victim died 7 several weeks earlier from multiple cuts and stab wounds to the chest, neck, back, 8 shoulder, side and abdomen. (Exhibit J, R.T. 11/23/07, at 62­75, 84­85.) 9 Maricopa County Sheriff's Detective Charles Ordell was assigned to

10 investigate the case. (Exhibit L, R.T. 11/29/94, at 55; Exhibit N, R.T. 12/01/94, at 11 7­8.) He found a California identification card in the name of "Christopher

12 McGee" near the body. (Exhibit L, R.T. 11/29/94, at 59; Exhibit N, R.T. 12/01/94, 13 at 9­10.) Following the autopsy, McGee was positively identified by matching his 14 "jaws" with dental records. (Exhibit L, R.T. 11/29/94, at 70.) Following the 15 positive identification, Detective Ordell contacted McGee's father, who gave him a 16 list of people who were known to associate with his son. (Exhibit L, R.T.

17 11/29/94, at 71­72.) McGee's father also informed Ordell that his son had last 18 been seen with his girlfriend Sarah, and a guy named "Tony" taking a cab ride 19 from a guy named "John" at the Roadrunner Bar in New River. (Exhibit L, R.T. 20 11/29/94, at 72­73.) 21 Mr. McGee had the phone number for "John." (Exhibit L, R.T. 11/29/94, at

22 75.) The phone number belonged to a cell phone registered to John Hooker, the 23 taxicab driver who had dropped the victim, Sarah and Tony off at 8603 North 22nd 24 Avenue on the day the victim was murdered; Hooker met with police and gave 25 them the location of this residence. (Exhibit K, R.T. 11/28/94, at 11; Exhibit L, 26 R.T. 11/29/94, at 76­78.) The location was the Heatherwood Apartments, where 27 Assyd and Petitioner lived at the time of the murder. (Exhibit K, R.T. 11/28/94, at 28 12­13; Exhibit L, R.T. 11/29/94, at 79.)
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Hooker also provided police with
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1 "Sarah's" full name, Sarah Rice. (Exhibit K, R.T. 11/28/94, at 13.) 2 Detective Ordell and Officer Todd Bates contacted Sarah Rice at St. Luke's

3 Behavioral Health Center; during their interview, Darah described the events that 4 led up to the victim's death.3 (Exhibit K, R.T. 11/28/94, at 13; Exhibit L, R.T. 5 11/29/94, at 20­21, 79­80; Exhibit N, R.T. 12/01/94, at 11­12.) Police next

6 obtained a warrant and searched Assyd's apartment, but no one lived there 7 anymore and the residence was completely empty. (Exhibit L, R.T. 11/29/94, at 8 81­82.) 9 Police next interviewed Kristen Kohler. (Exhibit K, R.T. 11/28/94, at 18;

10 Exhibit L, R.T. 11/29/94, at 84.) And, through Kohler the police found the vehicle 11 the men drove the victim to the desert in, and they recovered the two knives that 12 had been left in the vehicle. (Exhibit I, R.T. 11/22/94, at 75; Exhibit K, R.T. 13 11/28/94, at 19­21; Exhibit L, R.T. 11/29/94, at 84­88; Exhibit N, R.T. 12/01/94, 14 at 27.) Dr. Owl­Smith testified that the knives found in the vehicle were consistent 15 with and could have caused the death wounds on the victim. (Exhibit J, R.T. 16 11/23/94, at 97­99.) 17 Eventually, the investigation turned up other individuals including,

18 Christopher Reischman, Jeffrey Drew, Joseph Assyd and Petitioner, and police 19 interviewed all of them separately about their knowledge of the incident. (Exhibit 20 K, R.T. 11/28/94, at 16­17, 21­24; Exhibit L, R.T. 11/29/94, at 19, 73­74, 90­91; 21 Exhibit N, R.T. 12/01/94, at 26.) 22 Following a voluntariness hearing, the trial court determined that

23 Petitioner's statements to police during his interview were voluntary and could be 24 used against him in court. (Exhibit D, R.T. 11/14/94, at 3­77; Exhibit K, R.T. 25 26
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3

Sarah's mother consented to the interview, which lasted a little over an hour. 27 (Exhibit K, R.T. 11/28/94, at 14­15; Exhibit L, R.T. 11/29/94, at 20­22; Exhibit N, R.T. 12/01/94, at 11­12, 17­18.) 28
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1 11/28/94, at 3­4; Exhibit Q, R.T. 12/07/94, at 118.) Thus, Petitioner's videotape 2 recorded statements concerning his participation in the crimes were admitted at 3 trial and played for the jury. (Exhibit K, R.T. 11/28/94, at 25­26.) After initially 4 lying about the whole incident and denying any knowledge of McGee's death, 5 Petitioner admitted that he was present at the apartment when McGee was beaten, 6 that he participated in the beating, and that he left the apartment with the victim 7 and the other men. (Exhibit K, R.T. 11/28/94, at 28­31, 35; Exhibit L, R.T. 8 11/29/94, at 45; Exhibit R, R.T. 12/12/94, at 12, 17, 22, 24.) Petitioner asserted 9 that he had no idea that the group planned to kill the victim. (Exhibit L, R.T. 10 11/29/94, at 13, 47.) Petitioner admitted to being in the backseat of the vehicle 11 when the victim and Assyd began struggling, but maintained that Assyd stabbed 12 the victim, resulting in the blood on Petitioner's shirt. (Exhibit K, R.T. 11/28/94, at 13 36; Exhibit L, R.T. 11/29/94, at 50.) Petitioner asserted that Assyd had a gun and 14 forced Petitioner to go along while the crime was occurring, and that he was 15 "scared shitless," so he could not help the victim that night. (Exhibit K, R.T. 16 11/28/94, at 38­40.) Petitioner admitted, however, that Assyd handed him the gun 17 at one point, and he placed the gun on the floor of the vehicle. (Exhibit L, R.T. 18 11/29/94, at 13.) Petitioner maintained that he stood by the car while the victim 19 was repeatedly stabbed, and then, at Assyd's order, helped drag the body into the 20 bushes. (Exhibit K, R.T. 11/28/94, at 48­49.) 21 Petitioner testified in his own defense at trial. (Exhibit p, R.T. 12/06/94, at For the most part, Petitioner

22 85­105; Exhibit Q, R.T. 12/07/94, at 22­75.)

23 corroborated the events of the evening as described by the various other witnesses 24 who had been present that night. (Exhibit N, R.T. 12/01/94, at 43; Exhibit P, R.T. 25 12/06/94, at 88, 90­94, 97­104; Exhibit Q, R.T. 12/07/94, at 24­27, 34­35, 44­45; 26 Exhibit S, R.T. 12/13/94, at 50.) Petitioner asserted, however, that he never

27 actually participated in the beating of the victim but was merely present in the 28 apartment, and that he only accompanied the group to the desert under duress.
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1 (Exhibit Q, R.T. 12/07/94, at 42, 44­45, 51, 72; Exhibit R, R.T. 12/12/94, at 19; 2 Exhibit S, R.T. 12/13/94, at 14.) The duress resulted from the fact that Assyd and 3 various others involved that night had guns and/or knives, and Petitioner felt 4 powerless to contradict Assyd's orders, since Assyd was affiliated with the Hell's 5 Angels. (Exhibit Q, R.T. 12/07/94, at 34, 42, 45, 50­51, 62, 72, 74, 116; Exhibit R, 6 R.T. 12/12/94, at 19, 41­43, 79, 109; Exhibit S, R.T. 12/13/94, at 17.) Petitioner 7 admitted, however, that Assyd did not ever actually point the gun at him, and in 8 fact, prior to removing the victim from the car, Assyd gave Petitioner his handgun 9 to hold, which Petitioner then put down. (Exhibit Q, R.T. 12/07/94, at 42, 47, 75, 10 93, 114; Exhibit R, R.T. 12/12/94, at 29­31, 59­60, 62­63, 83, 85.) Petitioner also 11 admitted that he had "talked [Assyd] into" a couple things during the course of the 12 evening. (Exhibit Q, R.T. 12/07/94, at 38, 46; Exhibit R, R.T. 12/12/94, at 26, 29.) 13 And, when he was asked why he never made a move to stop the final actions since 14 he had a gun and could have changed the whole outcome, Petitioner stated that: (1) 15 he never thought about the weapon; (2) he knew that he would have to kill Assyd 16 to prevent McGee's murder; and (3) he would still be guilty of participating in a 17 murder, albeit a different murder. (Exhibit Q, R.T. 12/07/94, at 75, 114; Exhibit R, 18 R.T. 12/12/94, at 49­51, 66; Exhibit S, R.T. 12/13/94, at 9.) Petitioner asserted 19 that the blood on his shirt was a result of Assyd stabbing the victim while they 20 were in the car. (Exhibit Q, R.T. 12/07/94, at 47­48, 59; Exhibit R, R.T. 12/12/94, 21 at 38; Exhibit S, R.T. 12/13/94, at 21.) And, he admitted to helping drag the victim 22 out to where the body was dumped, but he denied participating in the actual 23 stabbing that resulted in the victim's death. (Exhibit Q, R.T. 12/07/94, at 60, 76; 24 Exhibit R, R.T. 12/12/94, at 37, 69­70, 78.) 25 On December 20, 1994, the jurors unanimously found Petitioner guilty of

26 kidnapping and felony murder. (Exhibit V, R.T. 12/20/94, at 11­13; Exhibit FFF, 27 R.O.A., at 131­132, Verdicts.) On February 10, 1994, the trial court sentenced 28 Petitioner to an aggravated prison sentence of 21 years for kidnapping. (Exhibit W,
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1 R.T. 02/10/95, at 32; Exhibit III, R.O.A., Item 151, M.E., Sentencing.) The trial 2 court based the aggravated sentence on the following aggravating circumstances: 3 threats to inflict serious physical injury; Petitioner's use or threatened use and 4 possession of a deadly weapon during the commission of the crime; the presence of 5 accomplices; the physical and emotional harm to the victim; and the emotional 6 harm to the victim's family. (Id.) The trial court sentenced Petitioner to life with 7 no possibility of parole for 25 calendar years for the first-degree murder 8 conviction. (Exhibit W, R.T. 02/10/94, at 32­33; Exhibit III, R.O.A., Item 151, 9 M.E., Sentencing.) The trial court ordered the sentences to run concurrent to one 10 another. (Id.) 11 On February 14, 1995, Petitioner filed a timely notice of appeal from the

12 judgment and sentence. (Exhibit KKK, R.O.A., Item 153.) On appeal, Petitioner 13 raised one issue­whether the trial court clearly abused its discretion by failing to 14 suppress Petitioner's statements to police. (Exhibit MMM, Opening Brief, at 11­ 15 19.) The State responded, arguing that the trial court did not clearly abuse its 16 discretion when it determined that Petitioner's statements to police were voluntary. 17 (Exhibit NNN, Answering Brief, at 3­13.) On April 4, 1996, the Arizona Court of 18 Appeals affirmed his convictions and sentences in a memorandum decision. 19 (Exhibit OOO, Memorandum Decision.) Petitioner's appellate attorney withdrew 20 at that point, and on August 12, 1996, Petitioner filed a pro per petition for review 21 by the Arizona Supreme Court. (Exhibit PPP, Notice, Extension Granted; Exhibit 22 QQQ, Pro Per Petition for Review.) On December 20, 1996, the Arizona Supreme 23 Court denied review. (Exhibit SSS, Order Denying Review.) The mandate issued 24 on January 9, 1997. (Exhibit TTT, Order and Mandate.) 25 On February 20, 1997, petitioner filed a Notice of Post-Conviction Relief

26 (PCR). (Exhibit UUU, Index to R.O.A., PCR; Exhibit XXX, R.O.A., PCR, Item 27 205, Notice.) On March 17, 1997, the trial court appointed counsel to represent 28 Petitioner in his PCR proceedings.
Case 2:02-cv-02368-JWS Document 120

(Exhibit YYY, R.O.A., PCR, Item 208,
12 Filed 05/07/2007 Page 12 of 51

1 Counsel Appointed.) On June 16, 1997, counsel moved to withdraw due to a 2 conflict, and new counsel was later appointed. (Exhibit ZZZ, R.O.A., PCR, Items 3 212, 214, New Counsel Appointed.) On October 20, 1997, Petitioner's counsel 4 notified the trial court that she could find no viable PCR claims to raise, and 5 thereafter, the court granted Petitioner an extension of time to file a pro per Petition 6 for PCR. 7 Extension.) 8 After several continuances, Petitioner filed a timely pro per PCR Petition (Exhibit AAAA, R.O.A., PCR, Items 215, 216, Counsel Avowel,

9 with the trial court on December 22, 1997. (Exhibit BBBB, R.O.A., PCR, Items 10 218, 219, Petition for PCR.) Petitioner argued that he received ineffective

11 assistance of counsel in several respects: (1) counsel failed to interview critical 12 defense witnesses (co-defendant Christopher Reischman and Lee Ray Crump) who 13 would have supported his theory of defense; (2) counsel failed to object to Sarah 14 Rice's in­court identification and failed to request a Dessureault4 hearing; and (3) 15 counsel failed to file a written motion following an oral hearing concerning alleged 16 improper juror contact by Detective Ordell. (Exhibit BBBB, R.O.A., PCR, Items 17 218, 219, Petition for PCR, at pages 2­5.) Petitioner also argued a separate

18 violation of Dessureault when Sarah Rice's identification testimony was admitted 19 at trial without a hearing. (Id. at pages 4­5.) He argued that Sarah Rice repeatedly 20 "perjured" herself on the stand. (Id. at pages 6­10.) And, finally, he argued that he 21 had stated a colorable claim for relief, and thus, was entitled to an evidentiary 22 hearing. (Id. at pages 10­11.) 23 The State responded, arguing that the allegation that Sarah Rice perjured

24 herself and the allegation that a Dessureault hearing should have been granted 25 were claims precluded from PCR review. (Exhibit DDDD, R.O.A., PCR, Item 26 27 28
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4

State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969).
13 Filed 05/07/2007

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Document 120

Page 13 of 51

1 228, Response, at page 4.) The State also argued that Petitioner had no basis for 2 his ineffective assistance of counsel claims, because: (1) Christopher Reischman 3 was a co-defendant awaiting trial at the time of Petitioner's trial, and thus, could 4 not have been presented as a witness; (2) Ray Crump was not present on the night 5 in question and was wanted for purposes of providing inadmissible and irrelevant 6 hearsay and opinion evidence; and (3) there was no jury issue concerning 7 Petitioner's identification as he was known by all the witnesses and admitted to 8 being present and participating in the activities of the night. (Id. at pages 5­7.) 9 The State further asserted that there was a hearing held on the alleged juror contact 10 with Detective Ordell, and it was found to be nothing more than a juror who 11 happened to stop outside to smoke in the same area the detective was smoking, and 12 the Detective immediately left the area to assure that nothing improper occurred. 13 (Id. at pages 7­8.) Finally, the State asserted that it is Petitioner's burden to 14 establish any colorable claim for relief and that he failed to meet his burden of 15 going forward with the claims. (Id. at pages 4­5, 8.) 16 On September 10, 1998, the trial court denied the PCR Petition, finding that

17 Petitioner "failed to address any new items not addressed to the court of appeals, or 18 precluded, or inadequate as a matter of law." (Exhibit FFFF, R.O.A., PCR, Item 19 231, M.E., PCR Denied.) 20 On November 30, 1998, Petitioner filed a timely Petition for Review with

21 the Arizona Court of Appeals, arguing the same issues and adding that the trial 22 court should have held an evidentiary hearing on his "colorable claims" for relief. 23 (Exhibit GGGG, R.O.A., PCR, Item 233, Petition for Review.) On December 21, 24 1998, the State responded, arguing the same issues and adding that Petitioner was 25 correctly denied an evidentiary hearing as Petitioner failed to state any colorable 26 claims. (Exhibit HHHH, R.O.A., PCR, Item 235, Response.) On February 3, 27 2000, the Court of Appeals denied review. (Exhibit IIII, Arizona Court of Appeals, 28 Order Denying Review.)
Case 2:02-cv-02368-JWS Document 120 14 Filed 05/07/2007 Page 14 of 51

1

On April 29, 2000, Petitioner filed a motion for extension of time to file a

2 Petition for Review by the Arizona Supreme Court, and after some other apparent 3 confusion between Petitioner and the courts, he was ultimately given until June 7, 4 2000, to file a Petition for Review.5 (Exhibit JJJJ, Request for Extension; Exhibit 5 KKKK, Motion for Reconsideration; Exhibit LLLL, Arizona Court of Appeals, 6 Order Reinstating and Extending.) 7 Approximately 4½ months after the time expired for Petitioner to file a

8 Petition for Review, on October 26, 2001, Petitioner filed a Motion for Status of 9 Petition for Review with the Arizona Supreme Court. (Exhibit MMMM, Motion.) 10 In response, the Clerk informed Petitioner that no Petition for Review had been 11 filed. (Exhibit NNNN, Letter.) Thereafter, on November 9, 2001, Petitioner filed a 12 second Motion for Extension to File Petition for Review to Arizona Supreme 13 Court, which the Court of Appeals denied on November 16, 2001, noting that the 14 court no longer had jurisdiction over the dismissed matter. (Exhibit OOOO,

15 Motion for Extension; Exhibit PPPP, Order Denying Extension.) On December 18, 16 2001, Petitioner filed a third Motion for Extension to File Petition for Review to 17 Arizona Supreme Court, which the Court of Appeals denied on December 26, 18 2001. (Exhibit QQQQ, Order Denying Reconsideration.) 19 Eleven months later, on November 25, 2002, Petitioner filed his Petition for

20 Writ of Habeas Corpus in this Court. (CR 1.) Petitioner alleges four Grounds for 21 relief: Ground 1, the Arizona Court of Appeals erred by not allowing Petitioner to 22 file a late petition for review in the Arizona Supreme Court in violation of 23 Houston; Ground 2, ineffective assistance of trial and appellate counsel by failure 24 25
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5

It is clear from references within these documents that there is a Court of Appeals 26 Order from April 13, 2000, dismissing the PCR proceedings. Respondents do not possess and are unable to find a copy of that order, but admit to its existence and 27 avow that, in light of the procedural posture of the case at this point, it is unnecessary for this Court's determination of this case. 28
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1 to interview critical defense witnesses, failure to request an identification hearing 2 pursuant to Dessureault and the 6th Amendment, and failure to file a motion for 3 mistrial after oral argument on a detective's contact with jurors; Ground 3, the 4 State unconstitutionally used perjured testimony at Petitioner's trial; and Ground 5 4, the trial court and Arizona Court of Appeals erred by denying an evidentiary 6 hearing in the post-conviction relief proceedings. (CR 1.) 7 In its original Response filed on March 20, 2003, Respondents asserted that

8 the Petition was untimely: Excluding all time during which Petitioner's post-conviction 9 relief proceedings were properly pending, Petitioner's habeas petition 10 is untimely under § 2244(d). Petitioner's Petition for Review to the Arizona Supreme Court was due on June 7, 2000. (See Exhibit J.) 11 Petitioner failed to file a Petition for Review with the Supreme Court, 12 and instead, 4½ months later, on October 23, 2001, filed a Motion for Status of Petition for Review with the Supreme Court. (See Exhibit 13 K.) Giving Petitioner the benefit of all doubt, even if it is assumed 14 that this status request somehow reinstated Petitioner's postconviction proceedings, that 4½ month gap, added to the 11 months 15 between the Arizona Court of Appeals' December 26, 2001, denial of 16 Appellant's last motion for an extension and Petitioner's November 25, 2002, filing of his Habeas Petition, results in a determination that 17 Petitioner's Habeas Petition was filed 3½ months after the expiration 18 of § 2244(d)(1)'s 1-year statute of limitations. 19 (CR 9, at 3­4.) Following appointment of counsel, an evidentiary hearing and 20 argument on the issue of whether Petitioner was entitled to equitable tolling based 21 on his belief that he had filed a timely Petition for Review by the Arizona Supreme 22 Court and due dilligence, Magistrate Judge Morton Sitver issued his Report and 23 Recommendation, recommending that the Petition for Writ of Habeas Corpus be 24 denied and dismissed as time-barred. (CR 73.) Petitioner objected to the Report 25 and recommendation, but, on May 25, 2005, District Court Judge John Sedwick 26 dismissed the Petition. (CR 85.) 27 28
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Thereafter, Petitioner filed a Motion for Relief from Order and Judgment

1 pursuant to Rule 60(b), as well as a Motion for Certificate of Appealability, and a 2 Notice of Appeal. (CR 87, 88, 90, 91.) On June 24, 2005, the District Court 3 granted the Certificate of Appealability in part on the issue of whether the Petition 4 was properly dismissed as untimely. (CR 92.) The 9th Circuit remanded the matter 5 for a determination of the Rule 60(b) motion, even though the motion had 6 apparently already been granted. (CR 93, 98.) Then, on May 4, 2006, Judge 7 Sedwick issued a new order, rejecting the original Report and Recommendation 8 and ordering that the matter be returned to the docket. (CR 99.) 9 Due to the retirement of Magistrate Judge Morton Sitver, the case was

10 reassigned to Magistrate Judge David Duncan, who issued a new order clarifying 11 that Petitioner's Rule 60(b) Motion had been granted, and that the original Report 12 and Recommendation as well as the District Court Order dismissing the Petition 13 had been vacated. (CR 107.) The court found that the prison "mailbox rule" 14 applied, Petitioner reasonably believed his Petition for Review was pending in the 15 Arizona Supreme Court, and he exercised due diligence in pursuing his State court 16 remedies. (CR 99, 107.) Thus, the court found that no time ran until State court 17 proceedings ended on December 26, 2001, and since the Petition for Writ of 18 Habeas Corpus was filed within a year of that date, the Petition is timely. (Id.) 19 Accordingly, Judge Duncan ordered Respondents to file an Answer to the Petition 20 for Writ of Habeas Corpus. (CR 109.) 21 22 23 III. EXHAUSTION/PROCEDURAL DEFAULT. A. Principles of law. The AEDPA exhaustion principle, codified at 28 U.S.C. § 2254(b)(1)(A)

24 encompasses two basic tenets: (1) that each claim presented in the federal habeas 25 petition must have been presented to every level of state court in a procedurally 26 correct manner; and (2) that every claim presented in the federal habeas petition 27 must have been "fairly presented" to each state court as a specific federal claim. 28 See Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887 (1995); Rose v. Lundy, 455
Case 2:02-cv-02368-JWS Document 120 17 Filed 05/07/2007 Page 17 of 51

1 U.S. 509, 518, 102 S. Ct. 1198 (1982). 2 An Arizona state prisoner properly exhausts state court remedies by 3 presenting his claims to the Arizona Court of Appeals.6 See Casey v. Moore, 386 4 F.3d 896, 916 (9th Cir. 2004) (to exhaust a habeas claim, a petitioner must properly 5 raise it on every level of direct review); Swoopes v. Sublett, 196 F.3d 1008, 1010 6 (9th Cir. 1999) (Arizona state prisoners need not seek discretionary review by the 7 Arizona Supreme Court in order to exhaust their federal claims). An Arizona state 8 prisoner "fairly presents" each of his federal claims in a procedurally correct 9 manner to the state appellate courts by presenting it either on direct appeal or in 10 post-conviction relief proceedings. See Ariz. R. Crim. P. 31 (direct appeal), 32 11 (post-conviction relief); O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S. Ct. 1728 12 (1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Jennison v. 13 Goldsmith, 940 F.2d 1308, 1310­11 (9th Cir. 1991). 14 To substantively satisfy the exhaustion requirement, a state prisoner has to

15 fairly present the federal claims in state court "to give the State the opportunity to 16 pass upon and correct alleged violations of its prisoners' federal rights." Picard v. 17 Connor, 404 U.S. 270, 275, 92 S. Ct. 509 (1971). A state prisoner "must include 18 reference to a specific constitutional guarantee, as well as a statement of the facts 19 which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162­63, 20 116 S. Ct. 2074 (1996); Connor, 404 U.S. at 275­78; Shumway v. Payne, 223 F.3d 21 982, 987 (9th Cir. 2000). General appeals to broad constitutional principles, such as 22 due process, equal protection, and the right to a fair trial, are not sufficient to 23 ________________________ 24 Respondents believe that Swoopes has arguably been overruled by Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1349 (2004), which holds that the exhaustion 25 requirement is satisfied only after a prisoner presents his claim in each appropriate state court, including a state supreme court with powers of discretionary review. 26 However, in light of the protracted litigation in this case regarding whether or not a Petition for Review was ever filed in the Arizona Supreme Court, and in the 27 interests of judicial economy, Respondents are willing to concede at this point that presentment to the Arizona Court of Appeals is sufficient for exhaustion purposes. 28
Case 2:02-cv-02368-JWS Document 120 18 Filed 05/07/2007 Page 18 of 51
6

1 establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 2 232 F.3d 666, 669 (9th Cir. 2000); Shumway, 223 F.3d at 987; Hiivala v. Wood, 3 195 F.3d 1098, 1106 (9th Cir. 1999). Further, it is not enough that all the facts 4 necessary to support the federal claim were before the state courts or that a 5 "somewhat similar" state law claim was made. Duncan, 513 U.S. at 366. Rather, 6 the prisoner "must specifically indicate to [the state] court that those claims were 7 based on federal law." Lyons, 232 F.3d at 668. "The petitioner must make the 8 federal basis of the claim explicit either by citing federal law or the decisions of 9 federal courts, even if the federal basis is `self-evident' . . . ." Id. 10 Likewise, new factual allegations render a claim unexhausted when they

11 fundamentally alter the legal claim considered by the state court. Vasquez v. 12 Hillery, 474 U.S. 254, 260, 106 S. Ct. 617 (1986). Federal-state comity favors the 13 principle that federal courts should not "entertain new evidence that places [a]. . . 14 claim in a significantly different posture, when that evidence was never presented 15 to the state courts." Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988). 16 Not only must a federal claim be fairly presented, it must be presented in a

17 procedurally appropriate manner. Coleman v. Thompson, 501 U.S. 722, 729­30, 18 111 S. Ct. 2546 (1991) (independent and adequate state ground doctrine bars 19 federal review due to state court determination of untimely filing of notice of 20 appeal); Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056 (1989) 21 (presentation of claim in procedural context in which claim's merits would not be 22 considered was not "fair presentation"); Roettgen, 33 F.3d at 38 (same). A federal 23 court will not review a federal question decided by a state court, "if the decision of 24 that court rests on a state law ground that is independent of the federal question and 25 adequate to support the judgment." Coleman, 501 U.S. at 729. 26 If a petitioner has failed to fairly present a claim (or claims) in state court in

27 a procedurally appropriate manner, state court remedies may, nonetheless, be 28 "exhausted." In such a situation, a state prisoner has "procedurally defaulted" his
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1 claims and federal habeas review of the claims are "procedurally barred." See Ylst 2 v. Nunnemaker, 501 U.S. 797, 802­05, 111 S. Ct. 2590 (1991); Coleman, 501 U.S. 3 at 731­32; White v. Lewis, 874 F.2d 599, 602­03 (9th Cir. 1989). 4 There are basically two categories of procedural default. First, a state court

5 may have actually applied a procedural bar when the prisoner attempted to raise 6 the claim in state court. See Nunnemaker, 501 U.S. at 802­05; Coleman, 501 U.S. 7 at 731­32; Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305­06 (9th Cir. 1996). If 8 the state court also addressed the merits of the underlying federal claim, the 9 "alternative" ruling does not vitiate the independent state procedural bar; the claim 10 is still barred from federal review. Nunnemaker, 501 U.S. at 802­05; Harris v. 11 Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038 (1989); Poland v. Stewart, 151 F.3d 12 1014, 1021 n. 7 (9th Cir. 1998) (state trial court found claims precluded; the fact 13 that it "went on to discuss the lack of merit of some or all of the claims does not 14 eliminate the procedural bar"), amended and superseded on denial of rehearing, 15 169 F.3d 573 (9th Cir. 1999); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) 16 (state supreme court found ineffective assistance of counsel claims "barred under 17 state law," but also discussed and rejected the claims on-the-merits; en banc court 18 held that the on-the-merits discussion was an "alternative ruling" and claims were 19 procedurally defaulted and barred from federal review). And, a subsequent "silent" 20 denial of review simply affirms the lower court's application of a procedural bar. 21 Nunnemaker, 501 U.S. at 803; Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 22 1992). 23 Second, the prisoner may not have presented the claim in state court, but

24 pursuant to the state court's procedural rules, a return to state court would be 25 "futile." See Teague v. Lane, 489 U.S. 288, 297­99, 109 S. Ct. 1060 (1989); Reed 26 v. Ross, 468 U.S. 1, 10­11, 104 S. Ct. 2901 (1984); White, 874 F.2d at 602. In 27 Arizona, most claims not previously presented to the Arizona courts are 28 procedurally barred from federal review because any attempt to return to state
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1 court to present additional claims would be "futile." See Ariz. R. Crim. P. 32.1, 2 32.2; State v. Mata, 185 Ariz. 319, 322­37, 916 P.2d 1035, 1048­53 (1996); accord 3 Carriger, 971 F.2d at 333. 4 In either case, federal habeas review is barred absent a showing of "cause

5 and prejudice" or a "fundamental miscarriage of justice." Teague, 489 U.S. at 298; 6 Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2678 (1986). To demonstrate 7 "cause," a state prisoner must show that some objective factor external to the 8 prisoner or his counsel impeded efforts to comply with the state's procedural rules. 9 Carrier, 477 U.S. at 488; see also Hughes v. Idaho State Board of Corrections, 10 800 F.2d 905, 908­09 (9th Cir. 1986). To show "prejudice," the prisoner must 11 demonstrate that the alleged constitutional violation, "worked to his actual and 12 substantial disadvantage, infecting his entire trial with error of constitutional 13 dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584 (1982). 14 To establish "fundamental miscarriage of justice," a state prisoner must establish 15 by clear and convincing evidence that no reasonable juror could find him guilty of 16 the offense. 28 U.S.C. § 2244(c)(2)(B). The miscarriage of justice exception 17 requires a showing that a constitutional violation probably resulted in the 18 conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326­27, 19 115 S. Ct. 851 (1995). "`[A]ctual innocence' means factual innocence, not mere 20 legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604 21 (1998). "To be credible, [a claim of actual innocence] requires petitioner to

22 support his allegations of constitutional error with new reliable evidence-whether it 23 be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 24 physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324. A 25 fundamental miscarriage of justice occurs in only narrow cases and in 26 extraordinary instances where a constitutional violation probably caused the 27 conviction of an innocent person. Carrier, 477 U.S. at 496; see also Dretke v. 28 Haley, 541 U.S. 386, 124 S. Ct. 1847, 1852 (2004) (federal courts faced with
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1 allegations of actual innocence must first address all non-defaulted claims for 2 comparable relief to excuse the procedural default). 3 4 B. Argument. Returning to Petitioner's claims, Ground I does not even raise a federal

5 constitutional issue, nor was it ever raised and exhausted as a federal claim in State 6 court. See Netherland, 518 U.S. at 162­63; Connor, 404 U.S. at 275­78; Payne, 7 223 F.3d at 987. In Ground I, Petitioner asserts that this Court should force the 8 Arizona Supreme Court to accept his late Petition for Review pursuant to Houston 9 v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988). (CR 1, at pages 5, 5A, 5B.) Houston 10 did not establish or address any constitutional right to force state courts to review 11 untimely Petitions for Review, however, but only addressed a federal procedural 12 issue concerning how the prison "mailbox rule" applied to the filing of a notice of 13 appeal in federal courts. Houston, 487 U.S. at 272­274 (emphasis added). 14 Conversely, the decision by Arizona state courts concerning whether to accept or 15 refuse a late filed Petition for Review is a matter of State procedural law and thus 16 not cognizable on federal habeas review. See Ariz. R. Crim. Pro., 31.19 17 (establishing time for filing petition for review); see also Coleman, 501 U.S. at 18 729­30 (independent and adequate state ground doctrine bars federal review due to 19 state court determination of untimely filing of notice of appeal); Lyons, 232 F.3d at 20 669; Shumway, 223 F.3d at 987; Hiivala, 195 F.3d at 1106; see also Castille, 489 21 U.S. at 351 (presentation of claim in procedural context in which claim's merits 22 would not be considered was not "fair presentation"); Roettgen, 33 F.3d at 38 23 (same). 24 Here, it is clear that the State appellate court considered Petitioner's

25 arguments concerning why it should accept his late Petition for Review, but the 26 State court was not swayed by Petitioner's claim that he was not at fault for the 27 delay. (Exhibit OOOO, Motion to Extend; Exhibit PPPP, Order; Exhibit QQQQ, 28 Order.) In fact, the State court acknowledged that Petitioner had been given
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Case 2:02-cv-02368-JWS

1 numerous extensions of time to file and in fact the case had even been dismissed 2 for failure to timely file but then reinstated at Petitioner's request to give him 3 another chance, and he still failed to file a timely Petition for review. (Exhibit JJJJ, 4 Motion for Extension; Exhibit KKKK, Motion for Reconsideration; Exhibit LLLL, 5 Order; Exhibit OOOO, Motion to Extend; Exhibit PPPP, Order; Exhibit QQQQ, 6 Order.) Regardless of whether this Court accepted Petitioner's prison "mailbox 7 rule" argument for purposes of tolling the statute of limitations, it has no authority 8 to force the State courts to reconsider their own rulings on the State procedural 9 issue of whether to accept an untimely Petition for Review. See Ariz. R. Crim. Pro., 10 31.19; see also Duncan, 513 U.S. at 365; Rose, 455 U.S. at 518. Nor does this 11 Court have any authority to review the purely State law procedural issue. See 28 12 U.S.C. § 2254(a); Lyons, 232 F.3d at 669; Shumway, 223 F.3d at 987; Hiivala, 13 195 F.3d at 1106.7 The "mailbox rule" is not a federal constitutional guarantee for 14 which Petitioner is entitled to federal relief and neither was it ever raised or 15 addressed as a federal issue in State court.8 Thus, Ground I is not properly before 16 17
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7

See, e.g., Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002) ("First, 18 assuming that the prosecutor did violate Ohio Crim. R. 16, such a claim is not cognizable on habeas, because it is not a constitutional violation."); Langford v. 19 Day, 110 F.3d 1380, 1388-89 (9th Cir. 1996) (alleged failure of state courts to permit defendant to withdraw from his guilty pleas was a matter of state law only 20 and not a matter of federal constitutional concern); Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (violation of Wash. Super. Ct. Crim. R. 7.1(c) 21 requiring 3-days notice for witnesses testifying at sentencing hearing did not violate federal constitution); Johnson v. Bowersox, 119 F.Supp.2d 971, 981 (E.D. 22 Mo. 2000) ("Federal habeas relief is not concerned with violation of state discovery rules[.]"). 8 23 The law is well-settled that a habeas petitioner does not satisfy this "fair presentation" requirement by merely setting forth all the facts necessary to support 24 the federal claim before the state courts, or by raising a state law claim that was "somewhat similar" to a federal claim. See Anderson v. Harless, 459 U.S. 4, 6, 103 25 S.Ct. 276 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim 26 was made.") (citing Connor, 404 U.S. at 277); Hiivala, 195 F.3d at 1106 ("The mere similarity between a claim of state and federal error is insufficient to establish 27 exhaustion."); Satcher v. Pruett, 126 F.3d 561, 573 (4th Cir. 1997) (severance claim presented as a state claim did not fairly present federal question); McCall v. 28 (continued ...)
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1 this Court.9 2 Ground II, is properly exhausted in part. In Ground II, Petitioner argues

3 several instances of ineffective assistance of trial counsel. (CR 1, at pages 5, 5b, 4 5c, 5d.) Petitioner argues that (1) trial counsel failed to interview or call as 5 witnesses Christopher Reischman and Lee Ray Crump, and Petitioner asserts that 6 they were critical to his defense, (2) trial counsel failed to challenge the in-court 7 identification made by Sarah Rice, and (3) trial counsel failed to file a written 8 motion for mistrial following oral argument on Detective Ordell's contact with one 9 of the jurors prior to the verdict. (CR 1, at pages 5, 5b, 5c, 5d.) Petitioner properly 10 raised these issues in his post-conviction relief proceedings under "Issue I," 11 asserting violations of his rights pursuant to Strickland v. Washington, 466 U.S. 12 668, 104 S.Ct. 2052 (1985). (Exhibit BBBB, R.O.A., PCR, Items 218, 219,

13 Petition for Post-Conviction Relief, at pages 2­5.) Accordingly, Petitioner's claims 14 alleging the ineffective assistance of trial counsel are properly exhausted and ripe 15 for federal review. Thus, Respondents shall address the merits of these claims in 16 the following section. 17 To the extent Petitioner is attempting to raise an ineffective assistance of 18 appellate counsel claim, however, it is not properly exhausted.10 (CR 1, at page 5.) 19
________________________ ( ... continued)

20 Benson, 114 F.3d 754, 757 (8th Cir. 1994) (state discovery claim did not exhaust federal Brady failure to disclose claim); Johnson v. Zenon, 88 F.3d 828, 830 (9th 21 Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its 22 similarity to the issues raised in state court."); Toney v. Gammon, 79 F.3d 693, 698 (8th Cir. 1996) ("It is well established that attacking an alleged trial error as a 23 violation of state law in state court proceedings does not preserve a federal constitutional law claim based on the same alleged trial error for federal habeas 24 corpus review."). 9 It seems clear from the Petition for Writ of Habeas Corpus that Petitioner has 25 asserted Ground I, in anticipation of a failure to exhaust argument from Respondents concerning Grounds II, III, and IV. (CR 1, pages 5, 6.) The 26 argument is moot, however, in light of Respondents concession that presentment to the Arizona Supreme Court is not necessary for exhaustion purposes. 27 10 Petitioner has not actually argued such an issue, but he did list it in the heading of his Ground II claim. 28
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1 The fact that Petitioner arguably exhausted another ineffectiveness claim in state 2 court does not entitle him to raise, for the first time ever on habeas review, every 3 other conceivable argument that counsel was constitutionally deficient. See 4 Stewart, 303 F.3d 975 989-90 (9th Cir. 2002); Hawkins v. Mullin, 291 F.3d 658, 669 5 (10th Cir. 2002); Lambert v. Blackwell, 134 F.3d 506, 516 (3rd Cir. 1997); Carriger, 6 971 F.2d at 333; Rodriguez v. Hoke, 928 F.2d 534, 537 (2nd Cir. 1991); Buckley v. 7 Lockhart, 892 F.2d 715, 719 (8th Cir. 1989); Burns v. Estelle, 695 F.2d 847, 849 (5th 8 Cir. 1983); Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982). 9 Ground III, was never raised or argued as a federal constitutional claim in

10 the State courts, and is not properly exhausted. See Duncan, 513 U.S. at 365; 11 Rose, 455 U.S. at 518. Ground III alleges "unconstitutional use by the State of 12 perjured testimony" from Sarah Rice and from Detective Ordell to the extent he 13 related what Sarah Rice told him in an interview at St. Luke's Behavioral Health 14 Center. (CR 1, pages 6, 6a, 6b, 6c.) This claim has a couple subparts and was 15 raised in the post-conviction relief proceedings under "Issue II," challenging the 16 in-court identification made by Sarah Rice, and "Issue III," challenging Detective 17 Ordell's testimony concerning his interview with Sarah Rice. (Exhibit BBBB, 18 R.O.A., PCR, Items 218, 219, Petition for Post-Conviction Relief, at pages 5­10.) 19 Petitioner never alerted the State courts that he was raising a federal claim, 20 however, as he never asserted any federal constitutional right that had been 21 violated. See Netherland, 518 U.S. at 162­63; Connor, 404 U.S. at 275­78; 22 Shumway, 223 F.3d at 987. Nor did he even reference any federal law. See Galvan, 23 397 F.3d at 1205 ("To exhaust a federal constitutional claim in state court, a 24 petitioner has to have, at the least, explicitly alerted the court that she was making 25 a federal constitutional claim."). The only reference to legal authority was to the 26 Arizona Supreme Court case of State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 27 (1969). The only place Petitioner even generally mentioned a "constitutional" 28 violation was in the heading for the two issues, which did not cite to any actual
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1 right and did not even assert whether he meant the federal or State constitution. 2 (Exhibit BBBB, R.O.A., PCR, Items 218, 219, Petition for Post-Conviction Relief, 3 at pages 5, 6.) See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) 4 (holding that "exhaustion demands more than a citation to a general constitutional 5 provision, detached from any articulation of the underlying federal legal theory"); 6 Lyons, 232 F.3d at 669 (general appeals to broad constitutional principles not 7 enough); Shumway, 223 F.3d at 987; Hiivala, 195 F.3d at 1106. Petitioner then 8 went on to argue the issue as a factual credibility problem and never mentioned any 9 constitutional violation whatsoever. See Mabry v. Johnson, 467 U.S. 504, 507, 104 10 S.Ct. 2543 (1984) ("Respondent can obtain federal habeas corpus relief only if his 11 custody is in violation of the federal constitution."). 12 Petitioner's argument in Ground III in this Court suffers from the same

13 flaw it suffered from in State court, in that, he is arguing state law evidentiary 14 issues concerning the credibility of the witnesses, none of which violate the federal 15 constitution. (CR 1, at pages 6, 6a, 6b, 6c.) Estelle v. McGuire, 502 U.S. 62, 67­ 16 68, 112 S. Ct. 475 (1991); Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558 17 (1982) ("A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on 18 the basis of some transgression of federal law binding on the state courts."). 19 "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 20 497 U.S. 764, 780, 110 S. Ct. 3092 (1990); see McGuire, 502 U.S. at 67, 112 S. Ct. 21 at 480. Accordingly, Petitioner has failed to raise a cognizable federal claim in 22 Ground III in this Court, and he has also failed to properly exhaust any such claim 23 in the State courts. Nonetheless, the trial court's summary dismissal of the PCR 24 based on the preclusion arguments asserted by the State creates an adequate and 25 independent State law ground establishing procedural default in this Court. 26 (Exhibit DDDD, R.O.A., PCR, Item 228, Response, at page 4; Exhibit FFFF, 27 R.O.A., PCR, Item 231, Order Denying PCR.) See Nunnemaker, 501 U.S. at 802­ 28 05; Coleman, 501 U.S. at 731­32; Harris, 489 U.S. at 264 n. 10; MartinezCase 2:02-cv-02368-JWS Document 120 26 Filed 05/07/2007 Page 26 of 51

1 Villareal, 80 F.3d at 1305­06. 2 Similarly, Ground IV does not raise a federal constitutional claim for relief,

3 and was never raised as a federal claim in State court, so it also fails to meet the 4 requirement that the claim presented in the federal habeas petition must have been 5 "fairly presented" to each state court as a specific federal claim. See Duncan, 513 6 U.S. at 365; Rose, 455 U.S. at 518. Ground IV addresses whether the trial court, 7 during post-conviction relief proceedings, should have ordered an evidentiary 8 hearing on Petitioner's claims for relief. (CR 1, at pages 6, 6c.) The question of 9 whether a hearing was necessary is governed by Arizona Rules of Criminal 10 Procedure, 32.8, however, and, "federal habeas corpus relief does not lie for errors 11 of state law." Lewis, 497 U.S. at 780; accord Estelle, 502 U.S. at 68. 12 The Arizona trial court rejected Petitioner's argument that he was entitled to

13 an evidentiary hearing in the Rule 32 proceedings, and that decision was upheld on 14 appeal. (Exhibit FFFF, R.O.A., PCR, Item 231, Order Denying PCR; Exhibit IIII, 15 Order Denying Review.) Moreover, Petitioner did not cite any federal

16 constitutional provision when raising the State law issue in the State courts. See 17 Gray, 518 U.S. at 162­63; Connor, 404 U.S. at 275­78; Shumway, 223 F.3d at 18 987. Thus, not only did Petitioner fail to exhaust any federal claim concerning 19 Ground IV, he has also completely failed to even raise a cognizable federal claim 20 in this Court as there is no federal constitutional principle that has allegedly been 21 violated. 11 See 28 U.S.C. § 2254(a). Accordingly, not only has Petitioner failed to 22 ________________________ 23 11 The law is well-established that "federal habeas relief is not available to 24 redress alleged procedural errors in state post-conviction proceedings." Ortiz, 149 25 F.3d at 939; see also Poland, 169 F.3d at 584 ("Poland further argues that the trial court improperly applied Arizona Rule of Criminal Procedure 32.2 in holding these 26 claims defaulted, since the conditions for inferring waiver under the rule were not 27 satisfied. Federal habeas courts lack jurisdiction, however, to review state court applications of state procedural rules."); Carriger v. Stewart, 95 F.3d 755, 762 (9th 28 (continued ...)
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1 raise a federal constitutional claim in this Court in Ground IV, he has also failed 2 to exhaust any such federal claim in State court. 3 Moreover, Grounds I, III and IV are all procedurally defaulted, because

4 return to state court to raise them would be futile because they would be precluded 5 under Arizona Rule of Criminal Procedure 32.2(a)(3) for not being presented on 6 direct appeal or in Petitioner's first Rule 32 proceedings. See Teague, 489 U.S. at 7 297­99; Reed, 468 U.S. at 10­11; White, 874 F.2d at 602; see also Ariz. R. Crim. 8 P. 32.1, 32.2; State v. Mata, 185 Ariz. 319, 322­37, 916 P.2d 1035, 1048­53 9 (1996); State v. Curtis, 185 Ariz. 112, 113, 912 P.2d 1341, 1342 (App. 1995) 10 ("Defendants are precluded from seeking post-conviction relief on grounds that 11 were adjudicated, or could have been raised and adjudicated, in a prior appeal or 12 prior petition for post-conviction relief (`PCR')."). Accordingly, Petitioner has 13 failed to exhaust and procedurally defaulted Grounds I, III, and IV. 14 15
________________________ ( ... continued)

Cir. 1996) ("We need not consider this claim on the merits because, as the district 16 court recognized, we have held that federal habeas relief isn't available to alleged state post-conviction relief proceedings."); Steele v. Young, 11 F.3d 1518, 17 errors in th 1524 (10 Cir. 1993) ("Even if it was not barred, Steele's claim challenging the 18 Oklahoma post-conviction procedures on their face and as applied to him would 19 fail to state a federal constitutional claim cognizable in a federal habeas proceeding."); Barksdale v. Lane, 957 F.2d 379, 383 (7th Cir. 1992) ("A federal 20 court sitting in habeas corpus is required to respect a state court's finding of waiver 21 or procedural default under state law. Federal courts do not sit to correct errors made by state courts in the interpretation and application of state law."); Williams22 Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990) (holding that "an infirmity in a cognizable in a federal 23 state post-conviction proceeding does not raise an issue th habeas petition"); Franzen v. Brinkman, 877 F.2d 26 (9 Cir. 1989) (collecting 24 cases and holding that errors in state post-conviction review process are not 25 addressable through habeas corpus proceedings). This doctrine applies with equal force to federal habeas petitions challenging a state court's failure to conduct an 26 evidentiary hearing allegedly prescribed by the state's own post-conviction relief 27 rules. See, e.g., Anderson v. Secretary for Dept. of Corrections, 462 F.3d 1319, 1330 (11th Cir. 2006). 28
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1

To the extent Petitioner is raising new legal claims in his Petition for Writ of

2 Habeas Corpus not specifically addressed hereafter, he did not properly exhaust 3 those claims in State court. Gray, 518 U.S. at 162­63; Connor, 404 U.S. at 275­ 4 78; Shumway, 223 F.3d at 987. To the extent Petitioner is asserting any new 5 factual allegations in this Court, they render his claims unexhausted if they 6 fundamentally alter the legal claim considered by the state court or if they place the 7 claims in a significantly different posture. Vasquez, 474 U.S. at 260; Nevius, 852 8 F.2d at 470. 9 10 11 IV. SCOPE OF REVIEW AND ARGUMENT. 1. The AEDPA standard of review. Passage of the Antiterrorism and Effective Death Penalty Act (AEDPA)

12 "substantially altered the standards and procedures govern