Free Objection to Report and Recommendations - District Court of Arizona - Arizona

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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 The Petitioner, Jaime Flores, hereby makes the following objections to both the Original 16 and Supplemental Report and Recommendation of the Magistrate, dated June 9, 2004 and 17 December 12, 2005, respectively. 18 1. Petitioner objects to the finding that his trial court counsel, the Maricopa Public 19 Defender's Office and/or its affiliates, did not have either actual or constructive notice 20 of issues relating to the mental competency of the Petitioner. Petitioner continues to argue 21 that the notice to trial court counsel, whether actual or constructive, was sufficient to 22 impose a duty to investigate further. Included in the record offered by the Petitioner as 23 Exhibit C, page 19 (it appears) is a photo copy of the notes of Dr. Raikhelkar. In an entry 24 from 12-11-97, the doctor indicates he received a call from "Jean Stein, an attorney for 25 Mr. Flores" who was concerned that the petitioner might be suicidal. At 1435 hours the 26 same day Mr. Flores was seen "per above" - referring to the phone call from Ms. Stein. 27 2. Petitioner objects to the finding/conclusion that the ineffective assistance of counsel 28 DISTRICT OF ARIZONA _______________________________________ ) Jaime Flores, ) No.: CV-02-2065-PHX-DGC ) Petitioner, ) ) PETITIONER'S OBJECTIONS v. ) TO THE SUPPLEMENTAL REPORT ) AND RECOMMENDATION Terry Stewart, Director of Arizona ) Department of Corrections; and the ) Attorney General of the State of Arizona, ) ) Respondents ) _______________________________________)

Case 2:02-cv-02065-DGC

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did not prejudice the Petitioner. As cited at page 3 of the Supplemental Report and Recommendation, the sworn affidavit of trial counsel, Mr. Syme, states unequivocally that had he been aware of the condition of Mr. Flores "I would have investigated further." He also would have taken further steps to inquire and pursue a Rule 11 examination. Certainly, any defense attorney would have utilized the information in plea negotiations, including the decision to pursue any criminal plea negotiations at all. Further, petitioner objects to the determination of the Magistrate as to the second prong of the Strickland test: Prejudice. The defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mr. Flores has provided this court with an affidavit of counsel, Mr. Syme, stating, unequivocally, that knowledge of a mental health issue would have been "a significant factor" in his evaluation of the case, including plea negotiations and sentencing. Such evidence makes it incumbent upon the court to hold an evidentiary hearing to determine if this acknowledgment of Mr. Syme rises to the level of "prejudice". The Report and Recommendation and Supplemental Report and Recommendation refer to a legal standard which suggests that Petitioner must demonstrate that a trial would have produced a different outcome from the sentence received as part of the plea agreement. However, at the sentencing of Petitioner, the Judge found no mitigating factors and several aggravating factors. To conclude that there is no prejudice in such a situation is to conclude that a defendant is not entitled to effective counsel at sentencing. Put another way, the conclusion of the R&Rs suggest that effective representation at sentencing (in a non-capital case) is simply an analysis of whether the sentence was less than the possible sentence post-trial. If such is the standard, no case involving a plea agreement could result in a finding of ineffective assistance of counsel. The possible prejudice in this case, as to sentencing, is the difference between 8 years and 16 years as set forth in the plea agreement. 3. Petitioner objects to the apparent legal conclusion of the Magistrate that an

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evidentiary hearing is not warranted on any of the grounds raised by the Petitioner. Petitioner presented to the Magistrate several grounds which necessitate an evidentiary hearing. See, Townsend v. Sain, 372 U.S. 293 (1963). The Petitioner believes that there are sufficient grounds for the Federal Court to grant a hearing in the exercise of its discretion. Further, the Petitioner believes that several bases set forth in Townsend support the mandatory nature of an evidentiary hearing in federal court. Most pertinent is criteria six: For any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. The Petitioner was not afforded a hearing at the state court level, in fact, it appears from the docket sheet, that he was denied hearing at every level of the state courts. Also, criteria five, even as modified, appears to necessitate a hearing: The material facts were not adequately developed at the state-court hearing. The cause for failing to develop the facts in the state court is obvious - no hearing was permitted. The prejudice is simply that the Petitioner has not had the opportunity to develop through witnesses, records and other materials, including, perhaps, his own testimony, the "notice" to his trial court counsel of a mental health issue necessitating further investigation. Further, he has not been able to provide to the court through witnesses, such as Mr. Syme, what the result wold have been from his utilization in plea negotiations or sentencing of this "significant factor". It also appears that criteria two and three support an evidentiary hearing. The Petitioner has presented facts which support a grant of relief if accepted by the court. The fact-finding procedure of the state court did not promote a full and fair hearing in that no hearing seems to have been held at all.

In addition to the foregoing, Petitioner incorporates herein the arguments and facts raised in all previous filing s of the Petitioner as though fully set forth herein. Respectfully submitted this 13th day of April, 2006.

S/ Mark A. Paige MARK PAIGE Attorney for Defendant

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Copy of the foregoing was electronically delivered this 13th day of April , 2006 to: Robert A. Walsh Assistant Attorney General Criminal Appeals Section 1275 W. Washington Phoenix, AZ 85007-2997 S/ Mark A. Paige Mark A. Paige // // //

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