Free Request - District Court of Arizona - Arizona

1 2 3 4 5 6

MARK PAIGE 45 West Jefferson Luhrs Tower - Suite #806 Phoenix, AZ 85003-2317 (602) 254-5457 State Bar #020902 [email protected] Attorney for Defendant

UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Respectfully submitted this 29th day of September, 2006. 22 23 24 25 26 27 28 -1I hereby certify that on September 29, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: S/ Mark A. Paige MARK PAIGE Attorney for Defendant DISTRICT OF ARIZONA _______________________________________ ) Jaime Flores, ) No.: CV--02-2065-PHX-DGC ) Petitioner, ) ) REQUEST FOR A CERTIFICATE v. ) OF APPEALABILITY ) Terry Stewart, Director of Arizona ) Department of Corrections; and the ) Attorney General of the State of Arizona, ) ) Respondents ) _______________________________________)

Petitioner Jaime Flores ("Flores"), hereby requests of the Court to issue a Certificate of Appealability to appeal the dismissal of the proceedings under 28 U.S.C. §§ 2253 to the United States Court of Appeals for the Ninth Circuit. The reasons for the request are stated in the attached Memorandum in Support.

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 1 of 7

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 27 28

Robert A. Walsh Assistant Attorney General Criminal Appeals Section 1275 W. Washington Phoenix, AZ 85007-2997 [email protected]

S/ Mark A. Paige Mark A. Paige

-2-

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 2 of 7

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 27 28

MEMORANDUM Petitioner Jaime Flores ("Flores"), hereby requests the Court to issue a Certificate of Appealability to appeal the dismissal of the proceedings under 28 U.S.C. §§ 2253 to the United States Court of Appeals for the Ninth Circuit. I. STANDARD TO APPLY This Court has the authority to issue a certificate of appealability ("COA"). United States v. Cruz-Mendoza, 147 F.3d 1069, 1074 (9th Cir. 1998); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997); Fed. R. App. P. 22(b); Circuit Rule 22-1. The Court is authorized to issue a COA upon a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (Supp. II 1996); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To meet this "threshold inquiry," the applicant need only demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983));1 see also Miller-El, 537 U.S. at 336; United States v. Cruz-Mendoza, 147 F.3d 1069, 1074 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1272-73 (9th Cir. 1997); Nevius v. Sumner, 105 F.3d 453, 458 (9th Cir. 1996). The standard for issuing a COA and a certificate of probable cause are essentially the same. Slack, 529 U.S. at 483 (recognizing the standard for COA as a codification of the standard for issuing a certificate of probable cause announced in Barefoot, 463 U.S. at 892, while duly noting that Congress had substituted "constitutional right" for "federal right" in § 2253(c)(2)); Lowell v. Prunty, 91 F.3d 1358, 1359 (9th Cir. 1996) (citing Lennox v. Evans, 87 F.3d An issue is considered debatable, for example, when, despite "the application of a controlling rule, . . . another circuit has reached a conflicting view" as to the controlling rule. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000) (citing Lozada v. Deeds, 498 U.S. 430, 431-432 (1991) (per curiam)).
-31

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 3 of 7

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 27 28

431, 434 (10th Cir. 1996)). The standard for issuing a COA intends only to screen out the clearly frivolous claim. "To that end, our opinion in Slack held that a COA does not require a showing that the appeal will succeed. Accordingly, a court should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief. The holding in Slack would mean very little if appellate review were denied because the prisoner did not convince a judge, or, for that matter, three judges, that he or she would prevail. It is consistent with § 2253 that a COA will issue in some instances where there is no certainty of ultimate relief. After all, when a COA is sought, the whole premise is that the prisoner "`has already failed in that endeavor.'" Miller-El, 537 U.S. at 336. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). Any doubt as to whether the petitioner has advanced a non-frivolous claim should be resolved in the petitioner's favor. Id. (citation omitted). II. REASONS FOR GRANTING THE CERTIFICATE Flores is not required to demonstrate to this Court that he would prevail on the issues in the court of appeals, nor is he compelled to show that this court was incorrect in making its rulings in the habeas corpus proceedings. Rather, all that he must demonstrate is that there is a substantial showing of the denial of a constitutional right. Flores' rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated as a result of the ineffective assistance of counsel he received at the trial court level of the proceedings. Flores asserted that his counsel was ineffective at the trial court for failing to properly investigate his mental competency to enter a guilty plea and be sentenced. The Supreme Court has spoken plainly and repeatedly as to the need for defendants to have adequate representation. Strickland teaches that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so
-4-

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 4 of 7

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 27 28

undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Wiggins speaks more pointedly to the issues involved in ineffective assistance of counsel; for example, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 521 (2003). Recently, the Court again remonstrated that deficient performance by counsel, resulting in prejudice, requires relief for the defendant. Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 2462 (2005). Flores' trial court counsel failed to perform to objective standards of reasonableness that are discussed in these cases. The petitioner's argument is simple, counsel during the trial court proceedings (plea and sentencing) failed to render effective assistance of counsel. Counsel failed to properly investigate the mental health condition of their client and proceed appropriately in the trial court. It is not disputed that while Flores was in the Maricopa County Jail system that he was treated for a mental health condition, nor is it disputed that trial counsel failed to investigate the mental health condition of Mr. Flores.. The issue is whether trial counsel had notice of the condition and should have acted upon the information. This is a fact-based dispute upon which reasonable minds may differ. The District Court raised the concern that a medical record which reflects a phone call from a lawyer regarding the suicidal tendencies of Flores was not argued to the Magistrate Judge. The document referred to is and was part of the record of filings in this action. However, the District Court's concern emphasizes the error in the denial of an evidentiary hearing to Mr. Flores. Surely the court's are busy, but is the system too busy to give Mr. Flores a single afternoon of its time to have his day in court; to hear his concerns; to tolerate the arguments of counsel? A Certificate of Appealability should issue.

-5-

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 5 of 7

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 27 28

III.

DENIAL OF EVIDENTIARY HEARING Flores sought an evidentiary hearing as to these claims. The Court denied relief.

The District Court seems to have found, implicitly, that Flores failed to develop the issues fully before the State Court. The Court stated that "... if a petitioner fails to develop the factual basis for his claim in state court,...", the AEDPA forbids an evidentiary hearing. The petitioner, in this case, was prevented by the State Court(s) from fully developing the factual basis for his claims by the summary dismissal (and/or denial) of his petitions, i.e. without evidentiary hearing. Society still has not solved the chicken verses the egg mystery and it seems it will not be solved here either. The state failed to allow Flores to fully develop his allegations in state court. And as Correll makes clear, "the state cannot now insist the obstacle it placed in [Flores'] path when he sought a state-court hearing and the means to present evidence at that hearing should again prevent [him] from securing a federal evidentiary hearing." Correll v. Stewart, 137 F.3d 1404, 1414 (9th Cir. 1998). See, also, Jones v. Wood, 114 F.3d 1002, 1012-13 (9th Cir. 1997)(finding that petitioner established cause for failure to develop facts on the ineffectiveness claim at the state level, because the state court dismissed his personal restraint petition containing the ineffectiveness claim without a hearing). In particular, allegations of ineffective assistance of counsel require special care. In Marshall v. Hendricks, 307 F.3d 36, 116 (3d Cir. 2002), the court noted that the district court did not evaluate the prejudice prong under Strickland v. Washington, 466 U.S. 668 (1984); "in fact, it could not do so, because it had not fully explored what was to be weighed. It never held an evidentiary hearing . . . ." As remedy, the court found "that a District Court hearing is essential, and [we] remand for a new ruling by the District Court as to Strickland based upon a complete record." Like the defendant in Marshall, Flores was unreasonably and unjustly denied his opportunity to litigate his claims of ineffective assistance of counsel in state court.
-6-

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 6 of 7

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 27 28

Flores should be allowed an evidentiary hearing. Reasonable jurists could debate the reasonableness of this Court's findings on Flores' claims. A COA should issue on this claim. CONCLUSION For these reasons, Flores respectfully requests this Court to issue a certificate of appealability so that he may appeal this Court's final order to the United States Court of Appeals for the Ninth Circuit. // // //

-7-

Case 2:02-cv-02065-DGC

Document 55

Filed 09/29/2006

Page 7 of 7