Free Response - District Court of Arizona - Arizona

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ERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) ROBERT A. WALSH ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 016071) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JAIME FLORES, -vsDORA B. SCHRIRO, et al.,
Respondents.

CV 02-2065-PHX-DGC (MS) RESPONSE TO PETITIONER'S OBJECTION TO SUPPLEMENTAL REPORT AND RECOMMENDATION

Respondents, by and through undersigned counsel, hereby respond to

17 Petitioner's objections to Magistrate Judge Morton Sitver's supplemental report 18 and recommendation, pursuant to this Court's order, filed on July 27, 2006. For the 19 reasons set forth in the accompanying memorandum of points and authorities, 20 Respondents respectfully urge this Court to adopt the supplemental report and 21 recommendation to dismiss the instant habeas petition with prejudice. 22 23 24 25 26 27 28
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DATED this 7th day of August, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL
S/ROBERT A. WALSH ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES On April 13, 2006, Petitioner filed his objections to Magistrate Judge

3 Morton Sitver's supplemental report and recommendation to dismiss his habeas 4 petition with prejudice. These objections included challenges to the magistrate 5 judge's following factual findings and legal conclusions: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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(1) Trial counsel, James Syme, lacked actual or constructive notice of Petitioner's mental condition before the change of plea. Petitioner predicates this argument upon an entry, dated December 11, 1997, in Dr. Raikhelkar records, which states, "Received a phone call from Jean Stein, an attorney for Mr. Flores, whom she has never met, who is concerned Mr. Flores may be suicidal. He told her to come to see him or he may hurt himself. `I've tried before.'" (Objections, at 1, citing to Exhibit C to Habeas Petition, page 19; emphasis added.) (2) Petitioner was not prejudiced by trial counsel's alleged failure to investigate Petitioner's mental condition. Petitioner relies upon the following assertions in Syme's affidavit: "If I had seen or been told anything that suggested [mental illness], I would have investigated further. Additional steps would have been to inquire of the treating doctor(s) and request a Rule 11 examination. Jaime's diagnosed and treated psychosis . . . would have been a significant factor in my evaluation of the case, in plea negotiations, and in sentencing." (Id., pages 1-2, citing to Petition for Post-Conviction Relief, filed June 5, 2000, Exhibit B, page 2.) Petitioner thus argues, "Certainly, any defense attorney would have utilized the information in plea negotiations, including the decision to pursue any criminal plea negotiations at all." (Id., page 2.) Petitioner also contends that the barometer for prejudice is not the difference between the prospective sentence he would have received after trial and the sentence actually imposed pursuant to the plea agreement. (Id.) (3) Petitioner is not entitled to an evidentiary hearing. Petitioner argues that this conclusion was erroneous because the state courts allegedly denied him an opportunity to develop material facts at an evidentiary hearing in state court. (Id., page 3.) Respondents shall address each objection in the order presented by

1 Petitioner. 2 A. TRIAL COUNSEL'S ACTUAL OR CONSTRUCTIVE NOTICE. 3 On December 12, 2005, Magistrate Judge Sitver issued his report and 4 recommendation, which concluded that the Ninth Circuit cases cited by this Court 5 6 in its Order, dated October 20, 2004, were inapplicable to the instant matter 7 because the state courts "necessarily resolved" the "factual dispute" concerning 8 trial counsel's awareness of Petitioner's alleged mental deficiencies against 9 Petitioner when they denied post-conviction relief--a ruling that implicitly 10 included the finding that trial counsel lacked actual or constructive notice of 11 Petitioner's mental condition. (CR 47: Supplemental Report and Recommendation, 12 at 3-5.) Objecting to the Magistrate Judge's finding, Petitioner directs this Court's 13 14 attention to an entry, dated 1110 hours, December 11, 1997, in Dr. Raikhelkar's 15 medical log regarding Petitioner, which states: 16 17 18 19 20 21 22 Received phone call from Jean Stine, an attorney for Mr. Flores, whom she has never met, who is concerned Mr. Flores may be suicidal. He told her to come see him or he may hurt himself. "I've tried before." Psych notified. 12-11-97. 1435 hours. Pt. seen per above. Pt. is tearful, labile, and childlike. Wants to move out of current housing due to gangrelated prob. Pt. denies SI/HI @ present. Cont. GP status. Will f/u PRN.

23 (Habeas Petition, Exhibit C, page 19; emphasis added.) 24 Petitioner's reference to this entry does not warrant rejection of Magistrate

25 Judge Sitver's supplemental report and recommendation to dismiss the instant 26 habeas petition, for the following reasons. First, Petitioner did not present this 27 document to the state trial court when he filed his Rule 32 petition for post28
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1 conviction relief, but instead presented it, for the first time ever, to the Arizona 2 Court of Appeals as an attachment to his petition for review from the trial court's 3 denial of post-conviction relief. (Docket No. 13: Exhibits M, T, and U to Answer to 4 Petition for Writ of Habeas Corpus, which are the Petition for Post-Conviction 5 6 Relief, Petition for Review to Arizona Court of Appeals, and State's Response to 7 Petition for Review.) Indeed, the State correctly made this observation in its 8 response to Petitioner's petition for review, wherein it stated: 9 10 11 12 13 14 15 16 Defendant attached additional documents concerning his medical treatments to his petition for review, but because this Court's inquiry is limited to the issue of whether the trial court abused its discretion in summarily dismissing Defendant's petition, this Court can consider only what the Defendant submitted in the trial court, with his original petition for post-conviction relief, in order to determine whether to grant his petition for review. See State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990) [parenthetical comment omitted]. Therefore, the State respectfully requests this Court to disregard any documents, other than those included with Defendant's original petition, in rendering its decision.

17 (Docket No. 13, Exhibit U: Response to Petition for Review, at 6 n.1.) 18 Respondents brought Petitioner's failure to present this report to the state 19 courts in procedurally proper fashion to this Court's attention in their supplemental 20 21 briefing, wherein undersigned counsel wrote: 22 23 24 25 26 27 28 Comparison of the exhibits that Petitioner attached to his Rule 32 petition for post-conviction relief (Exhibit N to Answer: Petition for Post-Conviction Relief, exhibit C) to those attached to the instant habeas petition (Docket No. 1, Exhibit C) reveals a significant difference: Petitioner never submitted to the state trial court those medical records memorializing Petitioner's alleged prior suicide attempt and his 1-day commitment to the so-called "psych-ward" on December 1[1], 1997. It appears that Petitioner did submit the additional reports to the Arizona Court of Appeals because the State's response to his petition for review contains a footnote objecting to
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additional documents not provided to the trial court. (Exhibit U to Answer: Response to Petition for Review, at 6, n.1.)

3 (Docket No. 40: Respondents' Submission of Simultaneous and Supplemental 4 Brief, filed on September 30, 2005, at 3, n.1.) 5 Significantly, Petitioner's objections to the supplemental report and 6 recommendation do not deny the truth of Respondents' observation. Nor does 7 8 Petitioner dispute Respondents' following subsequent assertions: 9 10 11 12 13 14 15 (Id.) 16 17
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The Arizona appellate courts do not consider materials not first presented to the trial court. See State v. Fassler, 108 Ariz. 586, 596, 503 P.2d 807, 817 (1972) ("Defendant Fassler in his supplemental brief filed `in propria persona' submitted certain factual matters not found in the record. Matters in criminal cases must be reviewed and decided solely on the record made in the trial court, State v. Cutting, 15 Ariz.App. 311, 488 P.2d 667 (1971), therefore the extraneous matters were disregarded in determining this case on appeal.").1

Consequently, this Court may not consider the document containing the

18 19 20 21 22 23 24 25 26 27 28 The law is well-settled in Arizona that appellate courts cannot consider facts that were not presented to the trial court. See State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997); State v. Saiers, 196 Ariz. 20, ¶ 8, 992 P.2d 612 (App. 1999). State courts judges, of course, are presumed to know and follow the law. See Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047 (1990) ("Trial judges are presumed to know the law and to apply it in making their decisions."); Wise v. Bowersox, 136 F.3d 1197, 1203 (8th Cir. 1998) ("The court did not quote the Dusky standard verbatim in making its finding, but it was not required to do so: `Trial judges are presumed to know the law and to apply it in making their decisions.'"); Gretzler v. Stewart, 112 F.3d 992, 1008 (9th Cir. 1997) ("The fact that the trial judge did not clearly and unambiguously make such an express finding on the record is not determinative."); Jeffers v. Lewis, 38 F.3d 411, 415 (9th Cir. 1994) ("[I]n this circuit we presume state courts follow the law, even when they fail to so indicate.").
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1 December 11, 1997, entry upon which Petitioner bases his objection because 2 Petitioner failed to present the medical records including this entry to the state 3 courts in a procedurally proper fashion. Indeed, a habeas petitioner does not satisfy 4 the "fair presentation" requirement for exhaustion of state-court remedies "where 5 6 the claim has been presented for the first and only time in a procedural context in 7 which its merits will not be considered unless there are special or important 8 reasons therefore." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056 (1989); 9 Gunter v. Maloney, 291 F.3d 74, 81­82 (1st Cir. 2002); Lurie v. Wittner, 228 F.3d 10 113, 124 (2nd Cir. 2000); Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir. 11 1997); Roettgen v. Copeland, 33 F.3d 36, 37 (9th Cir. 1994); Cruz v. Warden of 12 Dwight Correctional Center, 907 F.2d 665, 669 (7th Cir. 1990); Satterwhite v. 13 th 14 Lynaugh, 886 F.2d 90, 92 (5 Cir. 1989). As the Eighth Circuit has correctly 15 observed, "To preserve a claim for federal habeas review, a petitioner must raise 16 both the factual and legal basis for each ineffectiveness-of-counsel claim in the 17 state courts." Miller v. Kemna, 207 F.3d 1096, 1097 (8th Cir. 2000) (emphasis 18 added).2 19
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20 21 22 23 24 25 26 27 28 See also Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002) ("To satisfy this [exhaustion] requirement, a petitioner must present to the state judiciary both the operative facts and legal principles that control each claim."); Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996) ("A claim has been fairly presented when a petitioner has properly raised the `same factual grounds and legal theories' in the state courts which he is attempting to raise in his federal habeas petition.") (emphasis added); Flieger v. Delo, 16 F.3d 878, 884 (8th Cir. 1994) ("A petitioner must present `both the factual and legal premises' of his claims to the state courts in order to preserve for federal habeas review."); Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982) ("It follows that the federal habeas court must not hear factual allegations that were not before the state courts.").
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Even if this Court were to consider the December 11, 1997, entry, despite

2 Petitioner's failure to present this material to the state trial court with his Rule 32 3 petition, Petitioner's objection would still not warrant an on-the-merits rejection of 4 Magistrate Judge Sitver's supplemental report and recommendation to deny habeas 5 relief. As the magistrate judge correctly observed, the state courts' denial of post6 conviction relief constituted an implicit determination that trial counsel lacked 7 actual or constructive notice of Petitioner's mental condition--the factual predicate 8 to all of Petitioner's deficient-performance claims.3 Under the AEDPA, a state 9 court's factual determination "shall be presumed to be correct," on federal habeas 10 review, and a habeas petitioner can overcome that presumption only by "rebutting 11 the presumption of correctness by clear and convincing evidence." 28 U.S.C.§ 12 2554(e)(1); see also Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000); Bean v. 13 Calderon, 163 F.3d 1073, 1087 n.3 (9th Cir. 1998). Petitioner's burden is very 14 ________________________ 15 Because Petitioner presented the medical records at issue to only the 16 Arizona Court of Appeals, Respondents observe that the well-established 17 presumption of correctness applies with equal force to factual findings made by state appellate courts. See Parker v. Dugger, 498 U.S. 308, 320, 111 S.Ct. 731 18 (1991); Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764 (1981); King v. th 19 Bowersox, 291 F.3d 539, 540 (8 Cir. 2002); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002); Burks v. Borg, 27 F.3d 1424, 1427-28 (9th Cir. 1994). 20 Moreover, the fact that the state courts issued orders summarily denying post21 conviction relief does not render the presumption of correctness inapplicable here. See Wright v. Secretary for Department of Corrections, 278 F.3d 1245, 1253-54 22 (collecting cases from eight federal circuits, including Delgado v. Lewis, 181 F.3d th 23 1087, 1091 n.3 (9 Cir. 1999), holding that a state court's rejection of a federal claim is entitled to deference under 28 U.S.C. § 2254(d), even if it issues only a 24 summary order that does not explicate the basis for its ruling). Likewise, the 25 presumption of correctness applies, not only to explicit findings of fact, but also to unarticulated findings which are necessary to the state court's conclusions of mixed 26 law and fact. See, e.g., Valdez v. Cockrell, 274 F.3d 941, 949 n.11 (5th Cir. 2001) 27 (citing Lonberger v. Marshall, 459 U.S. 422, 433, 103 S.Ct. 843 (1983), and LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203 (1973)). 28
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1 considerable because "this standard means that the federal habeas court must `more 2 than simply disagree' with the state fact-finding." Washington v. Schriver, 255 F.3d 3 45, 55 (2nd Cir. 2001) (quoting Lonberger, 459 U.S. at 432); see also Thatsaphone 4 v. Weber, 137 F.3d 1041, 1046 (8th Cir. 1998) (a habeas court may not grant relief 5 merely because it disagrees with the state court's factual determinations, but only if 6 the state court's findings lack even "fair support" in the record). As the Second 7 Circuit has observed, "If the state court is `ambiguous' such that two different 8 views of the facts find fair support in the record, section 2254(d)(8) mandates 9 deference to the state court's fact finding." Washington, 255 F.3d at 55 (citing 10 Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378 (1983)); see also Hunterson 11 v. DiSabato, 308 F.3d 236, 250 (3rd Cir. 2002). 12 Assuming that both the trial and appellate state courts actually considered 13 the medical log entry at issue, Petitioner has not overcome his burden of rebutting 14 the correctness of the state courts' factual determinations with clear and convincing 15 evidence. As Respondents have previously noted, trial counsel, James Syme, 16 submitted an affidavit in support of Petitioner's Rule 32 petition, wherein he 17 unequivocally denied any knowledge of Petitioner's alleged mental deficiencies: 18 19 20 21 22 23 24 (Docket #13: Exhibit N to Answer to Writ of Habeas Corpus: Petition for Post25 Conviction Relief's Exhibit N, page 2.) 26 Besides this affidavit, additional evidence before the state courts 4. I did not know that he heard and/or talked to voices in his head, or that he had any paranoia or suicidal thoughts. 3. At the time I represented [Petitioner] I had no indication that he suffered from a mental illness, condition, disease or defect. I specifically did not know that he was taking anti-psychotic medications prescribed to him in the jail for psychotic symptoms.

27 circumstantially demonstrates that Petitioner had never disclosed his mental health 28
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1 issues to Mr. Syme: (1) Petitioner never mentioned his alleged diminished capacity 2 to the pre-sentence report writer (Id., Exhibit F to Answer: Pre-sentence Report, at 3 2­3); (2) when given an opportunity to speak during his sentencing hearing, 4 Petitioner never informed the trial court of any illness (Id., Exhibit J to Answer: 5 6 R.T. 1/11/99, at 17­18); (3) neither Petitioner's father, Robert Flores, nor his best 7 friend, Rachel Valenzuela, ever mentioned at the mitigation hearing that Petitioner 8 suffered from any mental illnesses (Id., Exhibit J to Answer: R.T. 1/11/99, at 3-11, 9 17­18); (4) Petitioner did not disclose that he was taking any medications in 10 response to the trial court's inquiries during the change-of-plea hearing--an 11 omission that trial counsel, as an officer of the court, was duty-bound to correct if 12 he had information to the contrary (Id., Exhibit G to Answer: R.T. 11/3/98, at 4); 13 14 and (5) by Petitioner's own admission, Dr. Raikhelkar contacted neither Syme nor 15 the jail's "Forensic Unit" to request that Petitioner be given a Rule 11 examination, 16 despite this doctor's "practice" to take such action upon encountering an inmate 17 with "Rule 11 issues, regardless of whether such a motion has been filed by the 18 attorney" (Id., Exhibit N to Answer: Petition for Post-Conviction Relief, at 4-5). 19 On the other side of the factual question, Petitioner never unequivocally 20 maintained, in the affidavit he submitted in support of his Rule 32 petition, that he 21 had informed trial counsel of his alleged mental health issues. The best that 22 Petitioner could avow was the tepid statement: "I also believe that I told Mr. Syme 23 something about my mental condition." (Id., Exhibit N to Answer: Petition for 24 Post-Conviction Relief, Exhibit A, page 2; emphasis added.) Assuming its proper 25 presentation to the state courts, Dr. Raikhelkar's log entry, dated December 11, 26 1997, does not help Petitioner prove, by constitute clear and convincing evidence, 27 that the state courts had incorrectly found Mr. Syme to lack actual or constructive 28
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1 notice of Petitioner's mental condition. The log's entry in question does not 2 explicitly identify the attorney who called Dr. Raikhelkar on December 11, 1997, 3 as trial counsel. Instead, the note identifies the calling attorney as "Jean Stine," 4 which is not trial counsel's correct name, and incorrectly refers to Petitioner's 5 counsel with the pronouns "she" and "her," instead of "he" or "him." Moreover, as 6 previously noted, by Petitioner's own admission, Dr. Raikhelkar, who treated 7 Petitioner during the length of his incarceration, never set in motion the process of 8 referring Petitioner for a Rule 11 examination before Petitioner's sentencing--an 9 act that would have certainly alerted trial counsel to any possible incompetence to 10 stand trial or favorable mental health evidence for use at trial or sentencing. 11 Finally, the doctor's entry directly conflicts with trial counsel's unequivocal 12 assertion that he was not aware of Petitioner's threat to commit suicide, alleged 13 auditory hallucinations, or other alleged mental deficiencies during the course of 14 their professional relationship. 15 Thus, even if this Court might itself resolve the conflict in the evidence 16 differently, it must nonetheless adopt Magistrate Judge Sitver's recommendation to 17 deny habeas relief because the record provides the requisite "fair support" for the 18 state courts' implicit finding that trial counsel lacked actual or constructive notice 19 of Petitioner's mental condition. See Lonberger, 459 U.S. at 432 ("This deference 20 requires that a federal habeas court more than simply disagree with the state court 21 before rejecting its factual determinations. Instead, it must conclude that the state 22 court's findings lacked even fair support in the record."); Turner v. Crosby, 329 23 F.3d 1247, 1273 (11th Cir. 2003) (same); Washington, 255 F.3d at 55 ("If the state 24 court is `ambiguous' such that two different views of the facts find fair support in 25 the record, section 2254(d)(8) mandates deference to the state court's fact 26 finding."); Thatsaphone, 137 F.3d at 1046 (a habeas court may not grant relief 27 merely because it disagrees with the state court's factual determinations, but only if 28
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1 the state court's findings lack even "fair support" in the record). 2 Consequently, the medical records' entry, dated December 11, 1997, even 3 when combined with Petitioner's equivocal affidavit assertion, does not constitute 4 a sufficient basis for overruling the magistrate judge's conclusion that trial counsel 5 lacked sufficient notice of Petitioner's mental condition to be constitutionally 6 obligated to investigate Petitioner's alleged mental deficiencies.4 7 B. LACK OF PREJUDICE TO PETITIONER. 8 9 10 11 Petitioner also challenges Magistrate Judge Sitver's conclusion that he was not prejudiced by trial counsel's failure to investigate his mental health issues. Petitioner relies upon trial counsel's sworn statements that if he had known of

12 Petitioner's mental health issues, he would have "investigated further," "inquire[d] 13 of the treating doctors," "request[ed] a Rule 11 examination," and considered 14 Petitioner's condition as "a significant factor in [his] evaluation of the case, in plea 15 negotiations, and in sentencing." (Docket No. 13: Exhibit N to Habeas Answer, 16 Petition for Post-Conviction Relief, Exhibit B, page 2.) This Court must overrule 17 this objection because: (1) Petitioner would have still accepted the tendered plea 18 19 offer because the diminished capacity defense is not recognized in Arizona, the 20 evidence against him was overwhelming, and Petitioner would have faced multiple 21 consecutive 28-year sentences for his pending offenses upon being convicted at 22 trial; (2) the record shows that Petitioner was competent to stand trial; and (3) the 23 Supreme Court has not extended Strickland to non-capital sentencing. 24 ________________________ 25 Even if this Court were to conclude somehow that trial counsel possessed 26 the requisite notice and therefore rendered deficient performance, Petitioner is still 27 not entitled to habeas relief because he did not suffer resulting prejudice, for the reasons that follow. 28
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1. Trial counsel would have still recommended accepting the plea offer. Petitioner contends that he suffered prejudice because Mr. Symes avowed that his knowledge of Petitioner's mental health would have affected his plea negotiations and evaluation of the case. Petitioner even suggests that trial counsel

6 might have even elected to forego plea negotiations entirely and proceed to trial. 7 This objection does not withstand scrutiny of the facts in the record and prevailing 8 precedent regarding mental defenses in Arizona. 9 10 11 12 13 mental defense was hardly a viable option for Petitioner. Although trial counsel avowed that he would have investigated further, he would have ultimately As an initial matter, Petitioner did not suffer prejudice from trial counsel's alleged failure to investigate mental defenses because proceeding to trial with a

14 recommended that Petitioner accept the tendered plea offer because Arizona does 15 not recognize defense of diminished capacity.5 Given this then-prevailing state of 16 ________________________ 17 5 See Summerlin v. Stewart, 341 F.3d 1082, 1093 (9th Cir. 2003) (recognizing 18 that this defense is not permitted in Arizona); State v. Mott, 187 Ariz. 536, 541, 931 19 P.2d 1046, 1051 (1997) ("Because the legislature has not provided for a diminished capacity defense, we have since consistently refused to allow psychiatric testimony 20 to negate specific intent.") (collecting cases); State v. Ramos, 133 Ariz. 4, 6, 648 21 P.2d 119, 121 (1982) ("The defenses of diminished capacity and irresistible impulse have been rejected by the legislature even though they might be relevant to 22 the accused's state of mind. Psychiatric testimony to negate specific intent has 23 consistently been excluded."); State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980) ("Since the legislature has not seen fit to provide for a defense of 24 diminished responsibility, we have consistently declined to allow psychiatric 25 testimony to negate specific intent."); State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975) (same). 26 27 28 Insanity, the only mental defense remotely available, would have required Petitioner to prove the defense by clear and convincing evidence. See A.R.S. § 13(continued ...)

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1 the law of Arizona, Mr. Syme's failure to investigate Petitioner's mental condition 2 hardly constitutes ineffective assistance of counsel because the Sixth Amendment 3 does not obligate attorneys to pursue courses of action that lack a sound legal basis 4 or are unlikely to succeed.6 5 Furthermore, even if Arizona were a jurisdiction that recognizes a 6 7 diminished capacity defense, Mr. Syme would have been eminently justified in 8 foregoing investigation of this defense because the following overwhelming 9 evidence plainly demonstrated that Petitioner not only entertained the requisite 10 mens rea for the charged offenses, but even orchestrated their commission: 11 12 13 14 15 16 17 18 (1) Petitioner was an enforcer and Original Gangster of the South Side Posse Street Gang. (Docket #13: Exhibit J to Answer: R.T. 1/11/99, at 12, 19; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 52­53, 58, 68.) (2) Fellow gangster and co-defendant Christopher Alejandro lured Allen Carroll, the victim, to Petitioner's house by requesting that Allen repay an outstanding debt. (Exhibit A to Answer: Indictment in CR 97­13400; Exhibit F to Answer: Presentence Report, at 1; Exhibit J to Answer: R.T. 1/11/99, at 19; Exhibit Y to Answer: Grand Jury
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19 502; State v. Turrentine, 152 Ariz. 61, 65, 730 P.2d 238, 242 (App. 1986) (upholding A.R.S. § 13­502(B), which requires the defendant to prove the 20 affirmative defense of insanity by clear and convincing evidence). By expressing 21 concern that Allen might have died as a result of the beating and instructing 22 Adrianna to release Allen, Petitioner clearly demonstrated that he appreciated the nature and wrongfulness of his conduct. To say the very least, any attempt to prove 23 that Petitioner was insane by clear and convincing evidence would have constituted 24 a steep uphill battle for counsel if he had elected to proceed to trial. 25 See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574 (1986); th 26 Wildman v. Johnson, 261 F.3d 832, 840 (9 Cir. 2001); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994); Card 27 v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990). 28
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R.T. 11/24/97, at 10­11.) After Allen's arrival and during his conversation with Christopher, Petitioner snuck up behind Allen, grabbed his throat from behind, forced Allen into a bedroom closet at gunpoint, ordered his fellow gangsters to bring a chair into the closet, stole Allen's wallet, car stereo, and personal effects, tied and bound Allen's arms and legs to the chair with duct tape, put a hood over his head, led his fellow gangsters in beating Allen's covered head with the wooden handle of an ax, and later tried to force Allen to ingest methamphetamine. (Exhibit F to Answer: Presentence Report, at 1­2; Exhibit J to Answer: R.T. 1/11/99, at 12, 19; Exhibit Y to Answer: Grand Jury R.T. 11/24/97, at 11­14; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 14.) (3) Before leaving his residence, Petitioner ordered his accomplices not to release Allen and to "whup (sic) his ass" if Allen attempted to escape. (Exhibit F to Answer: Presentence Report, at 3; Exhibit Y to Answer: Grand Jury R.T. 11/24/97, at 14.) (4) After Petitioner's departure, none of his accomplices beat Allen--a fact that patently demonstrates Petitioner's leading role in the charged kidnapping and aggravated assault. (Exhibit Y to Answer: Grand Jury R.T. 11/24/97, at 14.) (5) After his arrest that night on an unrelated matter, Petitioner used the jail telephone to order his accomplices to release the victim in a manner that would prevent the police from charging him with the assault. In accordance with Petitioner's instructions, his fellow gangsters removed Allen from the closet, used Allen's car to drive him to an orchard while keeping his head covered, walked in zig-zag fashion deep into the field, removed his shoes and socks, and abandoned Allen with his hands still tied by duct tape and his head covered. (Exhibit F to Answer: Presentence Report, at 1­2; Exhibit Y to Answer: Grand Jury R.T. 11/24/97, at 15; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 14­15, 18­19.) (6) During his post-arrest interview with Detective Martin, Petitioner admitted that: (a) he had ordered his accomplices to confine and bind Allen in a separate room; (b) he had used a hammer handle to beat Allen's head; and (c) he had instructed his accomplices, who feared him, to keep Allen confined in the closet. (Exhibit J to Answer:
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R.T. 1/11/99, at 12; Exhibit Y to Answer: Grand Jury R.T. 11/24/97, at 17; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 34, 66.) (7) While he was in jail pending trial on the kidnapping and aggravated assault charges involving Allen, Petitioner called Adrianna Caratacha, instructed her to sell some of the illegal drugs he had stashed in his house, and stated his intention to use the proceeds to post his bond and hire an attorney. (Exhibit F to Answer: Presentence Report, at 4; Exhibit J to Answer: R.T. 1/11/99, at 19; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 20­30, 63.) (8) During subsequent tape-recorded telephone conversations, Petitioner instructed his accomplices to destroy evidence connecting him to the crimes against Allen, discussed the search warrant that the police had executed on his home, opined that the fruits of their search was unconstitutional, gave Adrianna orders to continue selling drugs on his behalf, laughed and boasted about beating Allen, and exhibited no remorse. (Exhibit J to Answer: R.T. 1/11/99, at 13; Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 20­38, 40, 43.) Numerous courts, including the Ninth Circuit, have recognized that a defense attorney's decision to forego a certain defense does not constitute ineffective assistance of counsel when, as is true here, the foregone defense would be contradicted by the anticipated trial evidence.7 Furthermore, Petitioner suffered

19 ________________________ 20 21 22 23 24 25 26 27 28 See, e.g., Ashford v. Gilmore, 167 F.3d 1130, 1135 (7th Cir. 1999) (failure to present addiction evidence appropriate where belied by facts showing coolness of conduct, a deliberate plan, and no remorse); Totten v. Merckle, 137 F.3d 1172, 1175 (9th Cir. 1998) (mental defense incompatible with strong evidence of planning activity); Savino v. Murray, 82 F.3d 593, 602-03 (4th Cir. 1996) (defendant's postarrest statements demonstrating his ability to premeditate the murder in a "a logical, deliberate, and evil manner," counseled against presenting a diminished capacity defense, even if the defendant had been "high" from drugs); Brewer v. State of Iowa, 19 F.3d 1248, 1250­51 (8th Cir. 1994) (facts of flight counseled against insanity defense); Keys v. Duckworth, 761 F.2d 390, 393-94 (7th Cir. 1985) (holding that counsel was not ineffective for not investigating intoxication defense where the facts in the record demonstrated that the accused "at the time of the
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1 no prejudice from Mr. Syme's decision not to pursue a diminished-capacity 2 defense because it would have conflicted with Petitioner's post-arrest version of 3 events. Disavowing any involvement in the crimes against Allen, Petitioner told 4 Detective Martin (and later the presentence report writer) that he had only been 5 joking with the victim, and that he was not present when his fellow gangsters 6 assaulted Allen and stole his property. (Exhibit F to Answer: Presentence Report at 7 2­3; Exhibit J to Answer: R.T. 1/11/99, at 17­18; Exhibit Y to Answer: Grand Jury 8 R.T. 11/24/97, at 17.) Indeed, numerous courts have held that an attorney's 9 decision not to pursue a foregone defense constitutes sound trial strategy when, as 10 here, any evidence supporting that defense would have conflicted with the 11 defendant's version of events and primary theory of innocence.8 Consequently, if 12 13
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incident, possessed physical and intellectual skills that negate[d] any possibility of 14 his showing that he lacked the requisite specific intent"); Saunders v. Eyman, 600 th 15 F.2d 728, 731 (9 Cir. 1977) (no Sixth Amendment violation where the defendant's "post-arrest conduct was not the type that would raise any suspicion of his sanity 16 or capacity"); Roll v. Bowersox, 16 F.Supp.2d 1066, 1075 (W.D. Mo. 1998) (not 17 ineffective assistance to not pursue diminished capacity defense where defendant's post-crime conduct demonstrated consciousness of guilt and post-arrest statements 18 reflected his ability to recall details of crime). 19 8 See, e.g., Williams v. Woolford, 306 F.3d 665, 709 (9th Cir. 2002) ("Given 20 this factual support for the alibi defense, it was clearly within the wide range of 21 professionally competence assistance for [the defense attorney] to choose not to present a psychiatric defense theory that could conflict with the alibi defense."); 22 Stevens v. Delaware Correctional Center, 295 F.3d 361, 373 (3rd Cir. 2002) 23 ("Although in some rare instances counsel may decide to take the unusual step of impeaching his or her own client, it is not unreasonable for a lawyer to decide to 24 pursue investigative avenues and trial strategies that are consistent with the client's 25 account of events in question, especially if the client plans to offer sworn testimony regarding those events."); Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 26 2000) ("Third, a reasonable attorney could have concluded that a theory of self27 defense was inconsistent with Petitioner's own description of the killing."); Bean, 163 F.3d at 1081­82 (proper trial strategy not to raise diminished-capacity defense 28 (continued ...)
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1 Mr. Syme had presented evidence to support a diminished-capacity defense, 2 Petitioner might have challenged the effectiveness of counsel by presenting the 3 following converse argument: Mr. Syme introduced evidence that contradicted 4 Petitioner's post-arrest statements to support an extremely weak mental-state 5 defense that served only to fatally undermine his stronger defense of denial. See, 6 e.g., Bland v. Department of Corrections, 20 F.3d 1469, 1479 (9th Cir. 1994). 7 Even assuming that Mr. Syme's decision not to pursue a diminished-capacity 8 defense somehow constituted deficient performance, Petitioner's ineffectiveness 9 claim would still fail for lack of prejudice. The evidence recited above-- 10 particularly Petitioner's post-arrest statements about the charged offenses to 11 Detective Martin, Adrianna, and other gang-affiliated friends--overwhelmingly 12 negates any claim that Petitioner lacked the capacity to formulate the requisite 13 mens rea for the charged offenses.9 14 15
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because it conflicted with alibi defense and defendant's post-arrest admissions); 16 Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) ("To present simultaneously a 17 defense that Wilson was insane or lacked the requisite mens rea to commit the crime would have undermined Wilson's requested strategy [denial] and undercut 18 his own credibility."); Turk v. White, 116 F.3d 1264, 1266­67 (9th Cir. 1997) 19 (defense counsel was not ineffective for not advancing diminished-capacity defense because it would have contradicted primary defense of misidentification); 20 Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997) (intoxication defense 21 properly not raised because it would have contradicted defense that someone committed the crime); Hernandez v. Johnson, 108 F.3d 554, 564-65 (5th Cir. 1997) 22 (counsel's failure to present accident defense at trial for murder of prison guard 23 was not ineffective assistance because evidence showed that defendant shot the victim three times and deliberately shot three other guards). 24 See, e.g., Douglas, 316 F.3d at 1087 (although counsel rendered deficient performance by not investigating capital defendant's mental health, no Sixth 26 Amendment violation resulted because the trial evidence overwhelmingly 27 demonstrated defendant's premeditation of murder, including detailed planning activity and the pre-murder creation of an alibi); Jones v. Delo, 258 F.3d 893, 90228 (continued ...) 25
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9

1

Petitioner also contends that trial counsel's failure to investigate his mental

2 condition prejudiced him during plea negotiations. However, Petitioner has not 3 demonstrated that the fruits of the foregone investigation would have increased his 4 bargaining power sufficiently enough to compel the State to tender a better plea 5 agreement. Indeed, the State had no reason to tender a more lenient offer because 6 the following considerations demonstrate that the prosecution truly held all of the 7 cards in Petitioner's two pending cases: (1) the lack of a recognized diminished 8 capacity defense in Arizona; (2) the implausibility of proving Petitioner's insanity 9 by clear and convincing evidence; (3) the overwhelming evidence of Petitioner's 10 guilt (such as his videotaped confession, the jail tapes, his tape-recorded statements 11 implicating himself in the aggravated assault and demonstrating his intimate 12 familiarity with the workings of the criminal justice system, and the victim's 13 identification testimony); (4) Petitioner's extensive criminal history, his violent 14 reputation, and his leading status in a criminal street gang; (5) Petitioner's repeated 15 failures to profit from prior probation terms; and (6) the potential imposition of 16 multiple consecutive 28-year prison terms if Petitioner were convicted at trial. 17 ________________________ 18 03 (8th Cir. 2001) (where counsel did not investigate defendant's diminished 19 capacity, despite receiving a letter from the accused putting them on notice of this possible defense, no ineffectiveness resulted because defendant's own conduct and 20 statements constituted overwhelming evidence of planning and premeditation); th 21 Williams v. Calderon, 52 F.3d 1465, 1470 (9 Cir. 1995) (defendant's testimony and taped confession were "so clear, lucid, and powerful that no psychiatrist 22 [testifying to his diminished capacity] would have made a difference"); McCann v. th 23 Armontrout, 973 F.2d 655, 661 (8 Cir. 1992) ("In view of the evidence in the trial record demonstrating that petitioner was aware of his actions at the time of the 24 offense, we hold that there is no reasonable probability that the result of the trial 25 would have been different had Madison called a PCP expert as a witness for the defense. We therefore hold, on the merits, that petitioner was not denied effective 26 assistance of counsel."); In the Matter of Woods, 114 P.3d 607, 618-19, ¶¶ 46-47 27 (Wash. 2005) (failure to investigate diminished-capacity defense not prejudicial in light of defendant's conduct during offense and flight). 28
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1

Consequently, Petitioner did not suffer any prejudice because the plea

2 agreements he ultimately accepted drastically lowered his exposure from multiple 3 consecutive 28-year sentences to five concurrent sentences between 8 and 16 years. 4 Had trial counsel recommended against taking this deal, Petitioner--a three-time 5 convicted felon and gang leader who committed the instant offenses while on 6 probation--would have been convicted and sentenced to lengthy consecutive 7 prison terms spanning most of his adult life. Thus, this Court should reject 8 Petitioner's patently incredible argument that trial counsel would have told 9 Petitioner to reject the instant plea agreements and go to trial after investigating his 10 mental condition.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See, e.g., Armstead v. Scott, 37 F.3d 202, 210-11 (5th Cir. 1994) (despite allegation that his attorney was ineffective for incorrectly promising that defendant's wife would be sentenced to probation if defendant pled guilty, defendant showed no prejudice because the strong evidence of his guilt and the prospect of two 99-year prison terms would have nevertheless compelled defendant to accept the plea agreement); Panuccio v. Kelly, 927 F.2d 106, 109 (2nd Cir. 1991) (finding no deficient performance, despite counsel's advice to plead without mentioning a possible intoxication defense to his client, because the defense was unlikely to prevail at trial and the plea agreement significantly reduced his sentence); United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990) (same result where counsel failed to advise defendant of duress defense prior to plea agreement, and this defense would not have prevailed at trial); Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987) (rejecting a defendant's claim that, if properly advised about his parole eligibility, he would have rejected a plea agreement to second-degree murder and risked imposition of the death penalty); Mitchell v. Scully, 746 F.2d 951, 956 (2nd Cir. 1984) (failure to disclose "play pistol" affirmative defense was not deficient performance because "due process does not require that a defendant be advised of every basis on which he might escape or receive a lesser punishment for an offense that he has committed," especially in cases when the burden of persuasion for the defense at issue rests on the defendant); Evans v. Meyer, 742 F.2d 371, 374 (7th Cir. 1984) (rejecting claim that counsel was ineffective for not advising defendant about intoxication defense that would not have prevailed at trial); United States v. Sewards, 879 F.Supp. 502, 507­
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1

Thus, even assuming that Mr. Syme had rendered deficient performance by

2 failing to investigate a diminished-capacity defense, Petitioner's claim of 3 ineffective assistance of counsel must fail because Petitioner has not satisfied the 4 prejudice requirement. See Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003); 5 Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002); Sallahdin v. Gibson, 275 F.3d 6 1211, 1236 (10th Cir. 2002). 7 8 9 10 11 12 2. Rule 11 hearing. Petitioner contends that trial counsel's failure to investigate prejudiced him because trial counsel avowed that he would have requested a Rule 11 examination to determine Petitioner's competence to stand trial. (Docket No. 48, at 2.) However, Petitioner does not present any additional argument to demonstrate that

13 the trial court would have found Petitioner incompetent to stand trial if trial 14 counsel had investigated Petitioner's mental condition. Consequently, Respondents 15 hereby incorporate by reference the arguments they previously raised in their 16 Answer (Docket No. 12, at 22-27) and their Simultaneous and Supplemental Brief 17 (Docket No. 40, a 40-51). 18 3. Sentencing. 19 Petitioner contends that trial counsel's failure to investigate prejudiced him 20 21 because the foregone investigation could have persuaded the trial court to impose, 22 not the maximum 16-year prison term allowed by the plea agreement, but a lesser 23 term not less than 8 years. This objection suffers from several major flaws. 24 First, that Petitioner suffered no prejudice from his attorney's allegedly 25 ________________________ 26 08 (E.D. Pa. 1995) (rejecting an ineffective assistance of counsel claim predicated 27 upon counsel's failure to disclose to defendant an affirmative defense with little likelihood of success at trial). 28
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( ... continued)

1 deficient performance is powerfully demonstrated by the fact that the Honorable 2 Barry C. Schneider--the very judge who accepted Petitioner's guilty pleas and 3 imposed his sentences--entertained and denied Petitioner's Rule 32 petition for 4 post-conviction relief, despite the fact that Petitioner had attached most of the 5 medical records currently before this Court as exhibits to his Rule 32 petition. 6 (Docket No. 13: Exhibit F to Answer: Pre-Sentence Report; Exhibit G to Answer: 7 Change of Plea Proceeding, R.T. 11/3/98, at 3; Exhibit J to Answer: Sentencing 8 Hearing, R.T. 1/11/99, at 3; Exhibit K to Answer: Minute Entry, filed January 13, 9 1999; Exhibits N, O, and R to Answer: Rule 32 Petition for Post-Conviction Relief 10 pleadings; Exhibits P and Q to Answer: Minute Entries denying Rule 32 Petition.) 11 By finding that Petitioner had not raised any colorable claim warranting further 12 proceedings and denied post-conviction relief, the judge implicitly indicated that 13 he would have imposed the same sentences against Petitioner, even if he had been 14 timely presented with the information contained in Petitioner's medical records and 15 affidavits. (Exhibit N to Answer: Petition for Post-Conviction Relief; Exhibits P 16 and Q to Answer: Minute Entries denying Rule 32 Petition.) 17 Second, even assuming that Symes had actual or constructive notice of 18 Petitioner's mental condition, but nonetheless failed to investigate and present such 19 evidence in mitigation at his sentencing hearing, Petitioner would still not be 20 entitled to habeas relief. The Ninth Circuit Court of Appeals has twice recently 21 held that there exists no clearly established Federal law applying Strickland to 22 ineffective-assistance claims in the non-capital sentencing context: 23 24 25 26 27 28 When the Supreme Court established the test for ineffective assistance of counsel claims in Strickland, the Court expressly declined to "consider the role of counsel in an ordinary sentencing, which . . . may require a different approach to the definition of constitutionally effective assistance." Since Strickland, the Supreme Court has not decided what standard should apply to ineffective assistance of counsel claims in the non-capital sentencing context. Consequently, there is no clearly established law in this context.
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1 2 3

Because the Supreme Court has not clearly established what constitutes ineffective assistance in this context, other courts are free to do so.

th 4 Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9 Cir. 2005) (emphasis added). More recently, the Ninth Circuit expressly reaffirmed Cooper-Smith while 5

6 rejecting another challenge to the effectiveness of a defense attorney who had 7 failed to investigate and present mitigating evidence at a non-capital defendant's 8 sentencing hearing: However, as we have previously recognized, the Strickland 9 Court "expressly declined to `consider the role of counsel in an 10 ordinary sentencing, which . . . may require a different approach to the definition of constitutionally effective assistance.'" Cooper-Smith, 11 397 F.3d at 1244 (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 12 2052). Moreover, since Strickland, the Supreme Court has not delineated a standard which should apply to ineffective assistance of 13 counsel claims in non-capital sentencing cases. Id. Therefore, as we 14 said in Cooper-Smith, there is no clearly established federal law as determined by the Supreme Court in this context. Id. 15 16 17 18 19 20 We note that, even though the Strickland standard does not by necessity apply to the non-capital sentencing context, the Nevada courts were nonetheless free to adopt that standard for use in this context, as they appear to have done. Id. However, because there is no clearly established Supreme Court precedent that applies to this context, we are unable to grant Davis habeas relief on this ground.

th 21 Davis v. Grigas, 443 F.3d 1155, 1158 (9 Cir. 2006).

22

The recent holdings in Davis and Cooper-Smith effectively decimate

23 Petitioner's challenge to Syme's performance at sentencing because 28 U.S.C. § 24 2254(d)(1) unequivocally bars habeas relief whenever the federal law applicable to 25 26 27 28
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the claim at issue is not clearly established at the time of the state court

1 determination.11 2 C. NO EVIDENTIARY HEARING IS WARRANTED. 3 Petitioner also challenges the Magistrate Judge's recommendation that his 4 habeas petition be denied without an evidentiary hearing. As a preliminary matter, 5 Petitioner improperly relies on Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 6 (1963), as the benchmark for the granting of evidentiary hearings on habeas 7 petitions because Congress supplanted the Townsend standard with 28 U.S.C. § 8 2254(e)(2). See Kelley v. Secretary for Department of Corrections, 377 F.3d 1317, 9 ________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495 (2000) ("Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) `was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'") (O'Connor, J., concurring); Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005) ("No clearly established federal law supported claim that petitioner had fundamental right to engage in incest with another consenting adult free from government proscription at the time that state appellate court rejected petitioner's constitutional challenge to state incest statute, and therefore, state court's rejection of claim did not warrant federal habeas relief."); Miskell v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) ("Under AEDPA, if there is no `clearly established Federal law, as determined by the Supreme Court' that supports a habeas petitioner's legal argument, the argument must fail. [Citations omitted.] Petitioner's argument that she has a constitutional right to present the expert testimony of Dr. Shamansky as to the general reliability of BAC Verifiers suffers from this deficiency."); Brewer v. Hall, 378 F.3d 592, 594 (9th Cir. 2004) ("This case arises under the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"], and there is no clearly established federal law determined by the Supreme Court that indicates that the use of CALJIC 17.41.1 was constitutionally improper in Brewer's case. We therefore agree with the district court that the California Court of Appeal did not unreasonably apply clearly established federal law in rejecting Brewer's challenge to his conviction."); Jackson v. Coalter, 337 F.3d 74, 83-84 (1st Cir. 2003) ("Since there is no clearly established Supreme Court precedent directly on point, the SJC's rejection of the petitioner's double jeopardy claim does not transgress the `contrary to' prong of 28 U.S.C. § 2254(d)(1).").
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1 1333-34 (11th Cir. 2004); Cardwell v. Greene, 152 F.3d 331, 336-37 (4th Cir. 1998); 2 Weeks v. Bowersox, 119 F.3d 1342, 1352 n.12 (8th Cir. 1997). The new standard set 3 forth by the AEDPA is far more deferential to state courts than the earlier Townsend 4 standard: 5 6 7 8 9 10 11 12 13 14 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-- (A) the claim relies on--(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

15 28 U.S.C. § 2254(e)(2) (emphasis added.) 16 Petitioner has not satisfied the standard for an evidentiary hearing because 17 the state courts determined that he failed to present a colorable claim in his Rule 32 18 petition and ruled that he was not entitled to an evidentiary hearing. See Williams, 19 529 U.S. at 437 ("Diligence will require in the usual case that the prisoner, at a 20 minimum, seek an evidentiary hearing in state court in the manner prescribed by 21 state law.") (emphasis added); Smith v. Bowersox, 311 F.3d 915, 921­22 (8th Cir. 22 2003) (no habeas evidentiary hearing required where petitioner failed to present a 23 colorable claim in state court, as required by Missouri procedural rules); Baja v. 24 Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999) (same result where petitioner failed 25 to establish factual basis of claim in state court, as required).12 26 ________________________ 27 12 This Court must defer to the Arizona courts' application of their post-conviction 28 (continued ...)
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1

Nor has Petitioner presented clear and convincing evidence that "no

2 reasonable fact-finder would have found [him] guilty of the underlying offense[s]," 3 absent trial counsel's allegedly deficient failure to investigate his mental condition. 4 See 28 U.S.C. § 2254(e)(2)(B). Indeed, Petitioner could never meet this burden 5 because of the overwhelming evidence of his ability to plan, execute, and cover up 6 his aggravated assault and kidnapping of Allen, not to mention the evidence of his 7 post-arrest attempt to raise money to post bail and retain an attorney by instructing 8 a friend to sell the illegal drugs he had stashed at home. 9 On a similar note, even assuming that Syme had rendered deficient 10 performance and that Townsend's pre-AEDPA standard still applies today, 11 Petitioner would still not be entitled to an evidentiary hearing because he cannot 12 demonstrate that he suffered prejudice as a result of counsel's alleged errors--a 13 defect that mortally dooms his ineffectiveness claims. See Babbitt v. Calderon, 151 14 F.3d 1170, 1177­78 (9th Cir. 1998); Brown v. Terhune, 158 F.Supp. 2d 1050, 1087 15 (N.D. Cal. 2001). Thus, this Court may reject the merits of Petitioner's 16 ineffectiveness claims as a matter of law without a hearing. See Johnston v. 17 Luebbers, 288 F.3d 1048, 1060 (8th Cir. 2002) (district court did not abuse its 18 discretion in denying habeas corpus petitioner's request for an evidentiary hearing 19 20 21 22 23 24 25 26 27 28
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________________________ ( ... continued)

relief rules to Petitioner's case. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998); Barksdale v. Lane, 957 F.2d 379, 383 (7th Cir. 1992); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). As the United States Supreme Court conclusively observed, "It is not the province of a federal habeas court to re-examine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 67­68, 112 S.Ct. 475 (1991); see also Langford v. Day, 110 F.3d 1380, 1388­89 (9th Cir. 1996) ("We accept a state court's interpretation of state law, . . . and alleged errors in the application of state law are not cognizable in federal habeas corpus."); Paradis v. Arave, 954 F.2d 1483, 1493 (9th Cir. 1992) ("We cannot consider the merits of this contention because federal courts lack the jurisdiction in state prisoner habeas corpus proceedings to determine whether state law was properly applied.").

1 on claim that his counsel was ineffective for failing to present mitigating evidence 2 of petitioner's mental health and diminished mental capacity, where record already 3 contained facts necessary to resolve claim); Trice v. Wood, 196 F.3d 1151, 1159 4 (10th Cir. 1999) (no evidentiary hearing required where defendant failed to 5 establish prejudice prong of Strickland); Foster v. Ward, 182 F.3d 1177, 1184 (10th 6 Cir. 1999) ("Because we can fully resolve Mr. Foster's ineffective assistance of 7 counsel claim on the record before us, we conclude he is not entitled to an 8 evidentiary hearing on this issue as he suggests."); Totten, 137 F.3d at 1176 ("The 9 magistrate judge determined that no prejudice resulted from the failure to present 10 the defense. It is axiomatic that when issues can be resolved with reference to the 11 state court record, an evidentiary hearing becomes nothing more than a futile 12 exercise."). 13 D. CONCLUSION. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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S/ROBERT A. WALSH ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION

For the foregoing reasons, Respondents respectfully request this Court to adopt Magistrate Judge Sitver's supplemental report and recommendation and dismiss the instant habeas petition with prejudice. RESPECTFULLY SUBMITTED this 7th day of August, 2006.
TERRY GODDARD ATTORNEY GENERAL

ATTORNEYS FOR RESPONDENTS

1 I hereby certify that on August 7th, 2006 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 2 transmittal of a Notice of Electronic Filing to the following who is not a CM/ECF registrant: 3 4 A copy of the foregoing was deposited for mailing this 7th day of August, 2006, to: 5 MR. MARK PAIGE 6 45 W. JEFFERSON, STE. 806 PHOENIX, ARIZONA 85003-2328 7 Counsel for Petitioner 8 9 s/S. House 10 11 12 CRM00-1418 13 125522 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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