Free Supplement - District Court of Arizona - Arizona

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TERRY 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) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JAIME FLORES
Petitioner,

CIV 02-2065-PHX-DGC (MS) RESPONDENTS' SUBMISSION OF SIMULTANEOUS AND SUPPLEMENTAL BRIEF ADDRESSING PETITIONER'S INEFFECTIVENESS OF COUNSEL CLAIMS PURSUANT TO OCTOBER 20, 2004 ORDER

-vsDORA B. SCHRIRO, et al.,
Respondents.

Respondents, by and through undersigned counsel, hereby submit their simultaneous supplemental brief regarding Petitioner's claims alleging ineffective assistance of trial counsel, pursuant to the Court's Order, filed on October 20, 2004 (Docket No. 26). For the reasons stated in the accompanying memorandum of points and authorities, Respondents respectfully request that the instant habeas petition be dismissed with prejudice because none of the Ninth Circuit cases at issue render Petitioner's Sixth Amendment claims meritorious. DATED this 30th day of September, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL ROBERT A. WALSH ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS
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MEMORANDUM OF POINTS AND AUTHORITIES On November 15, 2002, Petitioner filed the instant habeas corpus, alleging

3 that his attorney, Mr. James Syme, rendered ineffective assistance of counsel by 4 virtue of the following: (1) failing to investigate Petitioner's mental state before the 5 change of plea proceedings; (2) failing to request a hearing to determine 6 Petitioner's competency, pursuant to Arizona Rule of Criminal Procedure 11; (3) 7 coaching Petitioner how to respond to questions posed by the court during the 8 change of plea hearing; and (4) failing to interview 12 potential alibi witnesses. 9 Petitioner also challenged the voluntariness of his guilty pleas on the ground that 10 he was under the influence of certain prescription drugs, notwithstanding his 11 assertion to the contrary at the change of plea hearing. (Docket No. 1.) 12 On February 14, 2003, Respondents filed their answer, in which they argued 13 that habeas relief should be denied. (Docket No. 12.) On the same day, Petitioner 14 filed a motion to amend his habeas petition by withdrawing his claim that his 15 attorney rendered ineffective assistance of counsel by failing to interview 16 witnesses. (Docket No. 16.) The Court subsequently granted this motion. (Docket 17 No. 22, at 2.) 18 On June 9, 2004, Magistrate Judge Morton Sitver filed a report and 19 recommendation, recommending that the habeas petition be denied with prejudice. 20 (Id.) On October 20, 2004, JuDavid G. Campbell issued an Order rejecting the 21 aforementioned report and recommendation because neither party "cited a body of 22 Ninth Circuit case law regarding counsel's duty to investigate a defendant's mental 23 condition under Strickland." (Docket No. 26, at 4-5.) Citing "evidence in the 24 record, including county jail medical records, that Petitioner (1) used crystal 25 methamphetamine, cocaine, and marijuana, (2) attempted suicide in 1990 and spent 26 time in the county jail's `psych ward' for suicidal thoughts in December 1997, (3) 27 was prescribed psychotropic medication for symptoms of schizophrenia and 28
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1 paranoia and other medications to treat the potential side effects from the 2 psychotropic medication, and (4) was on the medications before and during his 3 change of plea hearing in November 1998,"1 Judge Campbell remanded the instant 4 case to the Magistrate Judge to "determine whether counsel was on constructive 5 notice of Petitioner's illegal drug use, mental condition, and prescribed 6 medications and, if so, whether counsel's failure to investigate was unreasonable." 7 (Id. at 6.) 8 On October 28, 2004, Respondents moved the court to reconsider its order 9 on the ground that the AEDPA defines "clearly established federal law" in terms of 10 the precedent of the Supreme Court, not the Ninth Circuit Court of Appeals. 11 (Docket No. 27.) On February 23, 2005, Judge Campbell denied Respondents' 12 motion for reconsideration. (Docket No. 29.) 13 On May 4, 2005, Magistrate Judge Morton Sitver ordered the parties to file 14 simultaneous briefs to address the issues outlined in the Order issued by the court 15
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Comparison of the exhibits that Petitioner attached to his Rule 32 petition 17 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, 18 Exhibit C) reveals a significant difference: Petitioner never submitted to the state trial court those medical records memorializing Petitioner's alleged prior suicide 19 attempt and his 1-day commitment to the so-called "psych-ward" on December 1, 1997. It appears that Petitioner did submit the additional reports to the Arizona 20 Court of Appeals because the State's response to his petition for review contains a footnote objecting to additional documents not provided to the trial court. (Exhibit 21 U to Answer: Response to Petition for Review, at 6, n.1.) The Arizona appellate courts do not consider materials not first presented to the trial court. See State v. 22 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 23 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 24 667 (1971), therefore the extraneous matters were disregarded in determining this case on appeal."). 25 A federal court may not consider facts not previously presented to the state 26 courts in a proper fashion. See, e.g., Fretwell v. Norris, 133 F.3d 621, 623 n.1 (8th Cir. 1998); Hogue v. Johnson, 131 F.3d 466, 505 (5th Cir. 1997); Flieger v. Delo, 16 27 F.3d 878, 884 (8th Cir. 1994); Bolder v. Armontrout, 921 F.2d 1359, 1364 (8th Cir. 1990); Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982). 28
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1 on October 20, 2004. (Docket No. 31.) This pleading constitutes Respondents' 2 brief in compliance with the Magistrate Judge's order. As before, Respondents 3 urge this Court to deny Petitioner habeas relief. 4 A. COUNSEL DID NOT RENDER DEFICIENT PERFORMANCE 5 NOTICE OF PETITIONER'S ALLEGED MENTAL DEFECTS. 6
BECAUSE HE LACKED

None of the eight Ninth Circuit cases cited by Judge Campbell on pages 5

7 and 6 of his October 20, 2004 Order support the conclusion that Mr. Syme 8 rendered deficient performance by not investigating Petitioner's mental condition 9 prior to the change of plea hearing. As Respondents observed in their motion for 10 reconsideration (Docket No. 27), the holdings of the Supreme Court, not the Ninth 11 Circuit Court of Appeals, constitute "clearly established Federal law" for habeas 12 purposes. See 28 U.S.C. § 2254(d)(1); Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 13 S.Ct. 7, 10 (2003); Yarbrough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4 (2003); 14 Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166 (2003). Consequently, 15 Respondents commence their analysis by quoting the following passage from 16 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), regarding the 17 scope of an attorney's duty to investigate: 18 19 20 21 22 23 24 25 26 27 28 Id. at 601 (emphasis added); see also Burger v. Kemp, 483 U.S. 776, 794-95, 107
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The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

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1 S.Ct. 3114 (1987) (finding reasonable defense counsel's choice to interview only 2 those witnesses called to his attention by the defendant); Hill v. Lockhart, 474 U.S. 3 52, 61-62, 106 S.Ct. 366 (1985) (if the defendant did not advise his lawyer about a 4 prior conviction, there was no factual basis for raising an ineffectiveness claim 5 based upon counsel's failure to inform a pleading defendant of the impact of the 6 prior conviction on his sentence). 7 Based upon the aforementioned passage from Strickland and that case's 8 Supreme Court progeny, numerous courts, including the Ninth Circuit Court of 9 Appeals, have refused to find counsel ineffective for not investigating defenses 10 whose bases were not made reasonably apparent by the factual circumstances of 11 the crime or by information disclosed by the defendant. Collecting cases from the 12 Fifth, Eighth, and Ninth Circuits, the Seventh Circuit Court of Appeals noted: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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The Sixth Amendment does not require a defense attorney to pursue defenses that are not reasonably suggested by the apparent factual circumstances surrounding the crime charged or the subsequent demeanor and conduct of the client. While one would hope that defense lawyers would routinely reflect upon the mental capabilities of a defendant, in the absence of circumstances that would put a counsel on notice the Constitution cannot be read to mandate a specific inquiry at all times. See Saunders v. Eyman, 600 F.2d 728, 731 (9th Cir. 1977) (no Sixth Amendment violation when defendant's "post-arrest conduct was not of the type that would raise any suspicions of his sanity or capacity"); Franklin v. United States, 589 F.2d 192, 194 (5th Cir. 1979) (no ineffective assistance of counsel when record indicates defendant was alert and coherent); Harkins v. Wyrick, 552 F.2d 1308, 1313 (8th Cir. 1977) (no ineffective assistance where counsel had no knowledge of mental problems until day of trial and where defendant understood the charges against him and cooperated in the preparation of his defense). United States ex rel. Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986). Numerous courts have reached the same conclusion since Franzen. See, e.g., Nixon v. Epps, 405 F.3d 318, 325 (5th Cir. 2005) ("This Court has held that a

1 defendant who does not provide any indication to his attorney of the availability of 2 mitigating evidence may not later assert an ineffective assistance claim."); St. 3 Pierre v. Walls, 297 F.3d 617, 628 (7th Cir. 2002) ("Counsel is not required to 4 discuss every possible defense with the defendant especially one not suggested by 5 the evidence."); Stevens v. Delaware Correctional Center, 295 F.3d 361, 373 (3rd 6 Cir. 2002) ("As the Supreme Court held in Strickland, it is reasonable and proper 7 for counsel to make strategic choices about both trial strategy and pretrial 8 investigation in light of information supplied by a client."); Williams v. Head, 185 9 F.3d 1223, 1237 (11th Cir. 1999) ("An attorney does not render ineffective 10 assistance by failing to discover and develop evidence . . . that his client does not 11 mention to him."); Owens v. Dormire, 198 F.3d 679, 682 (8th Cir. 1999) (no 12 ineffectiveness where state court found that defendant never told his lawyer about 13 a witness not called to testify at trial); Harris v. Bowersox, 185 F.3d 744, 756-57 14 (8th Cir. 1999) (same); Carter v. Johnson, 131 F.3d 452, 465 (5th Cir. 1997) ("The 15 duty of trial counsel to investigate is tempered by the information provided to 16 counsel by the defendant. When, as here, the defense has given counsel reason to 17 believe that certain investigations would be fruitless or harmful, the failure to 18 pursue such investigations may not later be challenged as unreasonable."); 19 Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1997) (holding that defense 20 counsel's failure to challenge admissibility of confession was not deficient 21 performance because the defendant never disclosed that he had invoked his 22 Miranda rights); United States v. Rhodes, 913 F.2d 839, 844 (10th Cir. 1990) ("A 23 claim of ineffective assistance of counsel cannot be charged `when the essential 24 and foundational information required to trigger such an investigation is withheld 25 from the defendant's attorney by the defendant himself.'") (quoting United States 26 v. Miller, 907 F.2d 994, 998 (10th Cir. 1990)); Dooley v. Petsock, 816 F.2d 885, 27 890-91 (3rd Cir. 1987) ("A trial counsel cannot be ineffective for failing to raise 28
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1 claims as to which his client has neglected to supply the essential underlying facts 2 when those facts are within the client's possession; clairvoyance is not required of 3 effective trial counsel.") (citing Jackson v. Scully, 781 F.2d 291, 297 (2nd Cir. 4 1986)). 5 Given this long line of well-established authority, it is hardly surprising that 6 courts nationwide have rejected the argument that defense attorneys must 7 investigate every conceivable defense to render effective assistance of counsel. As 8 the Eleventh Circuit Court of Appeals observed while rejecting an ineffectiveness 9 claim predicated upon counsel's failure to present evidence in support of a self10 defense theory that would have contradicted the defendant's own description of the 11 murder: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petitioner first argues that trial counsel's tactic not to present an argument of self-defense was deficient because it was not an informed decision made pursuant to an investigation. But, no absolute duty exists to investigate a particular line of defense. Counsel's decision not to conduct an investigation need only be reasonable. See Strickland, 104 S.Ct. at 2066 ("[C]ounsel has a duty . . . to make a reasonable decision that makes particular investigations unnecessary."). This Circuit has refused to conclude that tactics "can be considered reasonable only if they are preceded by a `thorough investigation.'" Williams, 185 F.3d at 1236-37.

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000) (emphasis added); see also Williams, 185 F.3d at 1236 ("Given the finite resources of time and money that face a defense attorney, it is simply not realistic to expect counsel to investigate all plausible lines of defense.") (quoting Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir. 1989)); Jones v. Page, 76 F.3d 831, 841 (7th Cir. 1996) ("In fact, a defense attorney is `not require[d] to . . . pursue defenses that are not reasonably suggested by the apparent factual circumstances surrounding the crime charged or the subsequent demeanor and conduct of the client.'") (quoting Franzen, 794 F.2d at 317); Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994) (rejecting the position
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1 that strategic decisions cannot be deemed reasonable unless preceded by "thorough 2 investigation"). 3 Thus, it necessarily follows that a defense attorney does not render deficient 4 performance by failing to investigate his client's mental condition when neither the 5 factual circumstances of the crime nor the accused puts counsel on notice that such 6 an investigation would prove fruitful. While rejecting an ineffectiveness challenge 7 to the performance of an attorney who, like Mr. Syme, neither requested a 8 competency evaluation for his client, nor investigated a diminished capacity 9 defense, the Tenth Circuit Court of Appeals held: 10 We have referred above . . . to Miller's earlier claim, rejected by the district court and not raised here, that Miller lacked the 11 capacity to stand trial. Miller now claims that trial counsel Calder had 12 a responsibility to ascertain that he, Miller, suffered from mental disorders or incapacities that affected his trial. . . . Miller charges that 13 by failing to discover and investigate these matters, Calder allegedly 14 forfeited possible defenses--namely that Miller was incapable of participating effectively in his own defense, and was incapable of 15 forming the mens rea requisite for commission of the crime with 16 which he was charged. 17 . . . 18 19 20 21 22 23 24 25 26 27 28 The adequacy or reasonableness of an attorney's action is necessarily conditioned by the defendant's own actions or inaction. Thus, Miller now faults Calder for failing to investigate his mental health and behavioral history. But, Miller has not established that Calder was even aware until after trial, when the judge ordered a probation report, that Miller had ever seen a psychiatrist. With the exception of those instances where a defendant's behavior or demeanor should communicate to his counsel or the Court that the defendant suffers from a mental disability, incapacity or impairment, an investigation, such as the investigation that Miller claims his trial attorney failed to conduct, cannot be charged as a claim of "ineffective assistance of counsel" when the essential and foundational information required to trigger such an investigation is withheld from the defendant's attorney by the defendant himself. As
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this court has noted, "[t]he reasonableness of an attorney's decision not to conduct an investigation is directly related to the information the defendant has supplied." Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986). The Third Circuit has also held that counsel cannot be faulted for "failing to raise claims as to which the client has neglected to supply the essential underlying facts . . . clairvoyance is not required of effective trial counsel." Dooley v. Petsock, 816 F.2d 885, 891 (3rd Cir. 1987). Thus, Calder cannot be held responsible for Miller's failure to inform him of the full import and breadth of his symptoms and claimed incapacities, especially where some aspects lay beyond the scope of reasonable investigation. Counsel may only be held responsible for his own derelictions. Under the circumstances, it was not because he was derelict as counsel, that Calder, during a post-trial interview with the pre-sentence investigator, became aware for the first time that Miller had seen a psychiatrist.

13 Miller, 907 F.2d at 998-99. 14 Numerous courts have relied upon the rationale set forth in Miller to reject 15 claims of ineffectiveness based upon defense counsel's failures: (1) to move for a 16 competency hearing; (2) to investigate and present evidence in support of insanity, 17 diminished capacity, or other mens rea defenses at trial; or (3) to submit evidence 18 of his client's mental condition as mitigation evidence at the sentencing hearing. 19 See Van Poyck v. Florida Dept. of Corrections, 290 F.3d 1318, 1325 (11th Cir. 20 2002) ("When a petitioner [and family members petitioner directs his lawyer to 21 talk to] do not mention a history of physical abuse, a lawyer is not ineffective for 22 failing to discover or to offer evidence of abuse as mitigation."); Riley v. Taylor, 23 277 F.3d 261, 305-06 (3rd Cir. 2001) ("Before us, Riley has not argued that counsel 24 in a capital case must always seek a mental examination of the defendant, and 25 cases from other circuits reject that proposition. Instead, they hold that a case-by26 case determination must be made and that counsel is not ineffective if he or she has 27 no reason to think that a mental examination would be useful.") (collecting cases 28
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1 from Seventh and Tenth Circuits); Williams, 185 F.3d at 1237 ("At some point, 2 Allen talked to Williams about his life, but Williams gave him no reason to suspect 3 abuse and mistreatment. An attorney does not render ineffective assistance by 4 failing to discover and develop evidence of childhood abuse that his client does not 5 mention to him."); Carter, 131 F.3d at 465 ("As to the allegation that defense 6 counsel were deficient in their failure adequately to investigate mental capacity and 7 to secure expert witnesses who would offer mitigating evidence at the punishment 8 stage, that claim is foreclosed by the factual conclusion that defense counsel were 9 justified in believing that Carter was mentally competent at the time of trial."); 10 East v. Scott, 55 F.3d 996, 1006 (5th Cir. 1995) (counsel not ineffective for failing 11 to investigate mental history where "nothing . . . would have put his counsel on 12 notice that [the defendant] was mentally ill."); LaRette v. Delo, 44 F.3d 681, 685 13 (8th Cir. 1995) ("However, as the state courts noted, this failure to investigate [this] 14 claim [that defense counsel's failure to investigate the defendant's mental 15 condition] must be considered in light of what LaRette told his counsel--that he 16 was competent at the time of the murder and that counsel should not pursue a 17 competency defense."); Adams v. Leapley, 31 F.3d 713, 714-15 (8th Cir. 1994) 18 (assistance of counsel was not deficient even though counsel failed to have mental 19 health expert examine defendant to determine the feasibility of insanity, 20 unconsciousness, and diminished capacity defenses, absent any showing that 21 defense counsel had reason to believe that he was insane or incapacitated at time of 22 murder); James v. Butler, 827 F.2d 1006 1017 (5th Cir. 1987) ("On the other hand, 23 James did not advise counsel that he did not know what he was doing because he 24 was drugged. In these circumstances, it was reasonable for counsel to try the case 25 on the theory of attempting to raise reasonable doubt as to whether James, as 26 opposed to Price, was the triggerman, instead of attempting to investigate and 27 present evidence of drug addiction."); Funchess v. Wainwright, 772 F.2d 683, 689 28
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1 (11th Cir. 1985) (no ineffectiveness for not presenting evidence of mental condition 2 in mitigation where defendant did not advise counsel of past psychological 3 problems, defendant competently assisted counsel during trial, and prior 4 psychiatric examinations indicated his competence to stand trial); People v. 5 Rodriguez 914 P.2d 230, 295-96 (Colo. 1995) ("Rodriguez faults trial counsel for 6 failing to discover mitigating evidence which Rodriguez declined to divulge prior 7 to the penalty phase. Trial counsel's alleged failure to investigate or present 8 mitigating evidence does not constitute ineffective assistance `when the essential 9 and foundational information required to trigger such investigation is withheld 10 from the defendant's attorney by the defendant himself.'") (quoting Dooley, 816 11 F.2d at 890-91); Primeaux v. Leapley, 502 N.W.2d 265, 268 (S.D. 1993) ("Trial 12 counsel could not give information he did not possess. The reasonableness of 13 counsel's decision to investigate sanity depended on the information Primeaux 14 supplied. . . . Where Primeaux did not give information to counsel, counsel could 15 neither investigate it nor pass it on to the expert."). 16 The circumstances of the charged offenses were such that Mr. Syme had no 17 reason to suspect that Petitioner might be unable to form the mens rea for the 18 crimes against Allen Carroll and the subsequent drug transactions. In fact, the 19 transcripts from the grand jury sessions culminating in two separate indictments 20 against Petitioner collectively demonstrate that Petitioner was not only able to 21 entertain the charged offenses' prescribed mental states, but also planned, initiated, 22 and directed their commission. Turning to the first grand jury session on November 23 24, 1997, Phoenix Police Detective Carl Martin provided the following testimony 24 about the kidnapping, aggravated assault, and armed robbery offenses against 25 26 27 28
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Allen: Q: Okay. Has--did Allen Carroll give either you or someone in the department a detailed statement as to what occurred?

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A: Q:

Yes. Why don't you go through that in detail.

A: He, Allen, said he was contacted by Chris Alejandro, and by telephone was told to meet him at Jaime Flores' [Petitioner's] apartment at 4811 South Third Street. . . . And he eventually arrives at the 4811 South Third Street apartment, where he sees Chris Alejandro sitting down on the couch. He knows him. Apparently Allen was expecting to be paid money that was owed to him. He went in, sat down, was talking to Chris Alejandro. He saw that Chris was holding a TEC-9 semi-automatic pistol. They were talking casually at first. He asked--Allen asked Chris who the TEC-9 belonged to. Chris tells him that it belonged to [Petitioner], and then shows Allen the gun. As he hands the TEC-9 to Chris, [Petitioner] comes in from behind and puts Allen into a headlock, grabs the gun, and places the TEC-9 to his head, and then orders him to be quiet. And then orders him up and then into a separate room where he takes his wallet, a stereo face plate, that was a removable face plate from his vehicle, out of his pocket, and earrings and whatever personal items. Q: While he was taking items off of Carroll, was he [Petitioner] assisted by Alejandro in any way? A: At that point, no. He was, he was ordered into the back room where [Petitioner] orders one of the other suspects in the room to bring out a chair and some duct tape and rope. [Petitioner] was--I'm sorry, Allen was placed in the chair, he was tied to the chair, his hands were duct taped, and his head was covered with some type of cloth. Allen believes it was a pillow case. Q: Does he know who tied him up and who used the cloth on him or--

A: He didn't know who actually tied him up, but he said it was [Petitioner] that covered his face at first. He was able to see
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throughout the night because they removed the hood from him on several occasions. Q: What happened then?

A: He said some time passed. He believed it was a little bit over an hour. [Petitioner] returns and [Petitioner] begins to beat him with a-- what he described as a 2-foot section of a wooden axe handle. The beatings were reported by Allen to have been [Petitioner], and then it was handed off to Chris Tito Alejandro and Joel Parkinson and Gabriel, who was identified as Juan Medina. . . . Q: A: Q: Okay. And he was still tied at this time? He was still tied with duct tape. Okay. What happened after that?

A: At some point in the night [Petitioner] returns. He places the weapon to Chris' (sic) head and demands his PIN number, along with Chris Alejandro. Q: Is it Chris who demands the number?

A: Chris demands--Chris demanded the PIN number, basically for [Allen's] ATM banking card. . Q: . .

Okay. What happened after that?

A: He said--or Allen says that about midnight, 1:00 o'clock (sic), he wasn't sure on the time, the beating stopped. We have an injunction against harassment report where [Petitioner] was arrested at midnight, where he left the apartment and went to an ex-girlfriend's house who he had an injunction against--or she had an injunction against him. He was arrested by the Phoenix police 5 minutes after midnight.
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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 (Exhibit Y to Answer, Grand Jury R.T. 11/24/97, at 10-15.) During the second grand jury session concerning this incident, Detective Joe Swain Graniere testified that several tape-recorded jail telephone conversations between Petitioner and Adrianna Caratachea demonstrated that Petitioner ordered Alejandro to release Allen, devised the aforementioned plan to minimize the likelihood of police detection, and expressed fear that Allen's injuries had killed him--hardly the behavior of a person with diminished capacity due to mental illness: Q: And can you tell us the participation of Adrianna Caratachea? He was taken out to the field, walked out what he described as about half a block. As he was walking, he described being zigzagged as to-- as if he was trying to disorient him. And he was ordered to sit down. His shoes and socks were removed and--by Chris, and Chris Alejandro leaves leaving Allen in the field. Prior to being arrested and prior to leaving, he [Petitioner], he told others inside the house that Allen was not to move or leave. If he does, he instructed to, instructed to them to whup (sic) his ass. Once [Petitioner] did leave, Allen said he didn't recall any more beatings from the group. . . .

And at approximately 5:30 in the morning, [Allen] was taken out to 24th Street and Baseline, and just south there's an orange orchard. He was driven out next to the High Lane canal, and said--he identifies Chris as being the person who drove him out in his own car. . . .

A: Yes I can. Again just by way of information, when someone is booked into the county jail, they are given access to telephones in the jail within the jail pods. These conversations are recorded by the Maricopa County Jail.
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In large part my investigations involved listening to and interpreting well over a hundred calls of this nature involving Christopher Alejandro and Jaime Flores [Petitioner]. With respect to Adrianna Caratachea, there was quite a few telephone calls which were made to Ms. Caratachea by [Petitioner], Christopher Alejandro, especially that started approximately November 12, 1997 at 1:56 in the morning. This is significant because as I mentioned earlier the victim of the kidnapping was still in the closet of [Petitioner] at this time. And what happened, according to our investigation, [Petitioner] had been arrested that night for an unrelated incident to the kidnapping after he had left [his residence]. He got booked into the Maricopa County Jail and he began making these telephone calls. At 1:56 he called Ms. Caratachea and they continued throughout that morning. They discussed the victim being tied up in the closet. [Petitioner] discussed the urgency of having the victim released and asked her help in releasing the victim in a way that would prevent the police from finding out who were involved. During these phone calls she agreed to do this and in fact on November 12, 1997, at 12:10 p.m., there was a follow up phone call between {Petitioner] and Adrianna Caratachea. During that phone call she confirmed she had in fact assisted the other individuals at [Petitioner's] house in the release of the victim. She characterized this release of the victim being in an "orchard far away," and she described the injuries to the victim to [Petitioner] and said that the victim was "fucked up." She also indicated the person who assaulted him "fucked the shit out of him." In regard to the victim [Petitioner] asked her if the victim was still breathing. She responded, "Yeah, crying a lot but yeah." Q: Can you briefly tell us what the instructions were from [Petitioner] for Adrianna to do to the victim so police wouldn't be able to find out he had been kidnapped and assaulted?

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A: Yes. His instructions were to have him taken from the house and have him remain hooded and restrained and to put him inside his own car, to tell him that everything would be okay if he didn't talk and also to rub his arms and in my opinion, based on the content of the call, this would have been to prevent or get rid of the duct tape residue that would have been evidence to the police.

6 (Exhibit Z to Answer: Grand Jury R.T. 4/16/98, at 18-19.) During the first grand jury session, Detective Martin reported that Petitioner 7 8 made post-arrest statements that corroborated the victim's account of his ordeal: Q: Did you obtain a statement from Jaime Flores? 9 10 11 12 13 14 15 16 17 18 We also have statements from Jaime saying that he took a stick, that he described as a hammer handle, and popped [Allen] on the head a few times, but he describes it as not causing any blood to come out of [Allen's] head. A: We interviewed Jaime Flores at 620 West, read him his Miranda rights, and we have a videotaped and audio taped statement saying that his intentions were not to hurt him, just to scare him. We did have Jaime Flores described how he walked behind Alejandro--or, sorry, Allen and placed him in a headlock and taking the gun from him.

19 (Exhibit Y to Answer, Grand Jury R.T. 11/24/97, at 17.) 20 When asked whether Petitioner was a "prohibited possessor" not allowed to 21 possess firearms, Detective Martin gave a response that illustrated both Petitioner's 22 competence to stand trial and his ability to formulate a plan to evade the law: 23 "Jaime Flores has been arrested or actually in and out of the prison system. He 24 himself said that he was a prohibited possessor. But he does not go to gun shops or 25 pawn shops to buy the weapons; he has others buy it for him." (Id. at 18.) 26 Turning to the drug-related crimes constituting the basis for the second 27 indictment against Petitioner, Detective Graniere testified that as early as 28 November 10, 1997, the first day of his incarceration, Petitioner initiated a series
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1 of telephone calls to Adrianna Caratachea from the Maricopa County Jail with the 2 express purpose of having her sell methamphetamine and marijuana on Petitioner's 3 behalf to raise money for bail and an attorney. (Exhibit Z: Grand Jury R.T. 4 4/16/98, at 21-23, 29.) Petitioner instructed Adrianna to retrieve and sell a half 5 ounce of methamphetamine that he had stashed at his residence. (Id. at 22-23.) 6 Petitioner directed Adrianna to "take all of his guns to Mexico and trade his guns 7 for killer green [marijuana]." (Id. at 24.) Petitioner alternatively suggested that 8 Adrianna could sell his guns to a subject nick-named "Baby," but warned her that 9 Baby would "threaten to use a couple teeners [one-sixteenth ounce of 10 methamphetamine]." (Id.) Petitioner identified three drug dealers--Johnny Ruiz, 11 Manuel Ruiz, and Geno--from whom Adrianna could receive "fronted" drugs to 12 sell on his behalf. (Id. at 22, 24, 30.) 13 During a conversation on November 12, 1997, Adrianna informed Petitioner 14 that Christopher Alejandro (a.k.a. Guido) had been selling drugs for Petitioner 15 since his incarceration. (Id. at 26.) Petitioner's response demonstrates that 16 Petitioner was still directing his illicit drug-trafficking enterprise while in jail: 17 "That's what I'm saying. Tell him to turn my shit for me and not to fuck up." (Id.) 18 Petitioner and Adrianna had other conversations regarding the payment of debts 19 owed to Petitioner by his clientele. (Id. at 31-32.) 20 During a telephone conversation on November 16, 1997, Adrianna informed 21 Petitioner that the police had executed a search warrant at his residence. (Id. at 27.) 22 After discussing what the police had found there, the allegedly incompetent and 23 mentally-impaired Petitioner "expressed his belief that the evidence the police had 24 seized that night could not be used against them." (Id.) 25 26 27 28
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In sum, the factual circumstances underlying Petitioner's crimes against Allen Carroll and his drug-trafficking offenses hardly present Petitioner as a person who lacks the ability to formulate the mental state of the charged offenses, or who

1 is incapable of understanding the proceedings against him or assisting his attorney 2 at trial. Indeed, Petitioner's conduct during these offenses could lead Mr. Syme 3 only to the opposite conclusion. 4 Thus, Respondents now turn to whether Petitioner ever informed Mr. Syme 5 of facts suggesting that Petitioner was suffering from mental illness at the time of 6 the charged offenses and that these defects rendered him incompetent to stand trial. 7 Essentially, the state trial court was presented with two competing versions of 8 events on this issue. On one hand, Mr. Syme, an officer of the court in good 9 standing with the Arizona Bar Association, avowed: 10 11 12 13 14 15 16 17 18 5. If I had seen or been told anything that suggested any of the above, I would have investigated further. Additional steps would have been to inquire of the treating doctor(s) and request a Rule 11 examination. 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.

19 (Exhibit N to Answer: Petition for Post-Conviction Relief, filed June 5, 2000, 20 Exhibit B, page 2; emphasis added.) On the other side of the factual issue, 21 Petitioner submitted a self-serving affidavit that nevertheless offered but one 22 conclusive, tepid, and amorphous factual assertion: "I also believe that I told Mr. 23 Syme something about my mental condition." (Exhibit N to Answer: Petition for 24 Post-Conviction Relief, filed June 5, 2000, Exhibit A, page 2; emphasis added.) By 25 denying relief, the trial court necessarily resolved this factual conflict against 26 Petitioner, who had multiple felony convictions, who directed and initiated the 27 charged offenses, and whom the police had identified as a leading figure in a 28 criminal street gang. Stated differently, the trial court found that Mr. Syme had
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1 never been informed that Petitioner suffered from any mental illness, experienced 2 auditory hallucinations, attempted suicide in the past, and was taking psychotropic 3 medication. 4 The state court's aforementioned factual determination "shall be presumed to 5 be correct," on federal habeas review, and Petitioner can overcome that 6 presumption only by "rebutting the presumption of correctness by clear and 7 convincing evidence." 28 U.S.C.§ 2554(e)(1); see also Bains v. Cambra, 204 F.3d 8 964, 972 (9th Cir. 2000); Bean v. Calderon, 163 F.3d 1073, 1087 n.3 (9th Cir. 1998). 9 The burden placed upon habeas petitioners is considerable because "this standard 10 means that the federal habeas court must `more than simply disagree' with the state 11 fact-finding." Washington v. Schriver, 255 F.3d 45, 55 (2nd Cir. 2001) (quoting 12 Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843 (1983)); see also 13 Thatsaphone v. Weber, 137 F.3d 1041, 1046 (8th Cir. 1998) (a habeas court may not 14 grant relief merely because it disagrees with the state court's factual 15 determinations, but only if the state court's findings lack even "fair support" in the 16 record). As the Second Circuit has observed, "If the state court is `ambiguous' such 17 that two different views of the facts find fair support in the record, section 18 2254(d)(8) mandates deference to the state court's fact finding." Washington, 255 19 F.3d at 55 (citing Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378 (1983)); see 20 also Hunterson v. DiSabato, 308 F.3d 236, 250 (3rd Cir. 2002). Simply stated, 21 Petitioner has not come forward with clear and convincing evidence to overcome 22 the presumption of correctness owed to the state courts' factual resolution of his 23 claim. 24 The Ninth Circuit cases cited by Judge Campbell in his October 20, 2004 25 Order do not lead to the conclusion that Mr. Syme's failure to investigate 26 Petitioner's mental condition constituted deficient performance. Indeed, in all but 27 one of these cases, the trial attorney had actual or constructive notice of facts 28
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1 indicating that the defendant suffered from a mental condition warranting 2 investigation. For example in Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988), the pre3 sentence report contained information that put defense counsel on notice that the 4 defendant attempted suicide and needed psychiatric treatment. Recognizing the 5 potential mitigating effect that this evidence could provide the capital defendant, 6 the trial court even offered to continue the capital sentencing hearing to afford 7 defense counsel an opportunity to view the documents cited in the pre-sentence 8 report. Holding that defense counsel's refusal to investigate these materials before 9 sentencing constituted deficient performance, the Ninth Circuit stated: 10 Documents available to Evans' attorney prior to the first sentencing hearing plainly indicate that Evans had a history of mental 11 problems that may have made this provision applicable. Evans' 12 California conviction records, used by the state to establish the aggravating circumstance, included a statement filed by the trial 13 judge declaring that "Defendant is in need of psychiatric treatment." 14 In addition, the pre-sentence report noted that Evans had been incarcerated in Atascadero State Hospital, a California mental facility 15 for inmates, and that Evans had spent time in the mental health 16 facility at California's Vacaville prison. The FBI "rap sheet" attached to the pre-sentence report indicated that Evans had attempted suicide 17 while in California's Soledad prison. 18 19 20 21 22 23 24 Despite this information, counsel conducted no investigation to ascertain the extent of any possible mental impairment. [Citations omitted.] In fact, at the sentencing hearing, the court informed counsel that the probation officer had requested Evans' California prison records and reports but that they had not yet arrived, and offered to allow counsel to seek a continuance to await their arrival. However, counsel expressed no interest in viewing the contents of these documents and declined to request a continuance.

25 Id. at 636-37 (emphasis added); see also Deutscher v. Whitley, 884 F.2d 1152, 1160
th 26 (9 Cir. 1989) ("In Evans v. Lewis, 855 F.2d 631 (9th Cir.1988), we considered a

27 similar case. Counsel knew his client had some history of mental problems, but 28 "conducted no investigation to ascertain the extent of any possible mental
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1 impairment," id. at 636, and did not present any mitigating evidence at his client's 2 death penalty hearing."). 3 In United States v. Burrows, 872 F.2d 915, 916 (9th Cir. 1989), a defendant 4 convicted of racketeering filed a motion, pursuant to 28 U.S.C. § 2255, alleging 5 that his counsel rendered ineffective assistance by failing to investigate his mental 6 state prior to trial. The government conceded that the defendant had informed his 7 trial attorney of the following facts: (1) the defendant had been admitted to Western 8 State Hospital for a psychiatric examination in connection with his 1977 arrest for 9 receiving stolen property, an offense to which defendant ultimately pled guilty; (2) 10 hospital staff determined that the defendant was a chronic paranoid schizophrenic 11 who could neither distinguish between right and wrong, nor appreciate the nature 12 of his conduct at the time he committed the theft offense; and (3) the hospital 13 released the defendant because he presented no danger to other persons as long as 14 he took his prescribed medication and avoided over-consumption of alcohol. Id. at 15 916-17 & n.2. The Ninth Circuit reversed the district court's summary dismissal of 16 the defendant's § 2255 motion and remanded the case for an evidentiary hearing 17 because: (1) "Burrows' claims raise facts which occurred out of the courtroom and 18 off the record"; and (2) the record available did conclusively show that the 19 ineffectiveness claim was meritless because it lacked any evidence that the 20 attorney had considered but rejected an insanity defense. Id. at 917. 21 In Sanders v. Ratelle, 21 F.3d 1446, 1450 (9th Cir. 1994), defense counsel 22 was personally informed by the defendant's mother that the defendant's brother, 23 Xavier, had confessed to shooting the murder victim and was willing to submit to 24 an interview about the murder. Despite firsthand knowledge of this available 25 26 27 28
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evidence, counsel neither interviewed Xavier, nor called him to the stand, even when Xavier came to the courtroom ready to testify to his commission of the crime. Id. Instead, defense counsel presented three inconsistent defenses: (1) the

1 defendant was not at the murder scene; (2) the shooter fired the gun from a house 2 overlooking the street where the murder occurred; and (3) assuming that the 3 shooter was on the street with the victim, the killer was not the defendant, but his 4 brother, Xavier. Id. Not surprisingly, the Ninth Circuit held that defense counsel's 5 failure to interview and call Xavier constituted deficient performance and 6 ineffective assistance. Id. at 1456-60. 7 Like the defense attorneys in Evans, Burrows, and Sanders, the lawyer 8 representing the defendant in Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), had 9 actual notice of information warranting investigation of his client's mental health. 10 Indeed, unlike the instant case, both the defendant and his counsel acknowledged 11 that the defendant had informed his lawyer about the symptoms related to his 12 mental condition: 13 In addition to the evidence in the pre-trial record that should have alerted trial counsel to the possibility of using Seidel's mental 14 illness as a defense, there is also evidence in the record that counsel 15 actually was aware of the mental problems that his client suffered. Seidel testified at the federal evidentiary hearing that he had informed 16 counsel about the symptoms related to his mental condition. [Citation 17 omitted.] Counsel's own handwritten notes corroborate Seidel's testimony: Notes from a client interview with Seidel on July 23, 1990, 18 less than two months after the murder, indicate that Seidel told 19 counsel that he walked away from Bucholz after mortally wounding him because he was taking medication from the V.A. hospital and 20 experiences "anger fits and black[ ] out[s]." In addition, as 21 evidenced by counsel's own notes, counsel had been informed that the prison mental health department was arranging to obtain medication 22 for Seidel while he remained in custody. In spite of these telltale signs 23 that counsel knew of his client's psychiatric troubles, counsel stated in a letter dated five months after Seidel's conviction that "the evidence 24 [did not] suggest that [Seidel] had any mental problems." 25 26 27 28 Although trial counsel had both actual and constructive notice of Seidel's mental status, he conducted no investigation to ascertain the extent or possible ramifications of his client's psychiatric impairment. . . . Counsel's disregard for conspicuous pieces of
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evidence that pointed to a potentially fruitful trial strategy cannot be described as anything short of defective representation.

3 Id. at 755-56 (emphasis added). 4 In Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998), the Ninth Circuit held that 5 defense counsel's failure to investigate the defendant's mental history constituted 6 deficient performance. Although the defendant's first attorney conducted an 7 investigation that resulted in the discovery of ample evidence supporting a 8 diminished capacity defense, trial counsel literally ignored these materials in his 9 case file: 10 After Turner was indicted, the court appointed public defender 11 Joy Wilensky to represent him. The public defender launched an investigation, interviewing a number of witnesses who had seen or 12 heard of abusive and violent behavior by Dennis and had witnessed 13 Dennis threaten Turner. At least one of the witnesses corroborated Turner's testimony by confirming that Turner had made 14 contemporaneous complaints about Dennis's abuse. Laverne Love 15 recounted prior conversations with Turner in which he had reported his fear of Dennis, and had said that Dennis had physically and 16 sexually threatened him. Turner's housemate Seales stated that she 17 had heard Dennis threaten Turner with bodily harm. Another house resident, Berry, stated that he had fought with Dennis in the past and 18 that he had witnessed Dennis choke two women, one with a board 19 across her throat after she refused to have sex with him. Berry and Seales also characterized Dennis as an aggressive individual with a 20 bad temper, and Turner as a "nice" and non-aggressive person. 21 22 23 24 25 26 27 28 The public defender also arranged for a court appointed psychiatrist, Dr. Alvin Davis, to examine Turner. Dr. Davis's 1981 report stated that Turner had "acted impulsively in reaction to fear and anger at past abuse by victim, and to threat of current and future physical and sexual abuse by him." Dr. Davis concluded that Turner was "not a danger to others," that the offense was "a single isolated instance of violence, highly provoked by victim at the time and by ongoing provocation that was overly stressful to Defendant." He further stated that Turner had the mental capacity to form specific intent, to briefly premeditate, and to harbor malice, but not "to
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

deliberate or maturely reflect, because of fear and immediate threat, and his passive personality." Turner had acted "in what he experienced as self-defense with no viable alternative to taking action himself." Turner, concerned that the public defender would be unable to mount a sufficient investigation, followed his mother's advice and retained private counsel, Andrew Smyth, for a $1000 fee. . . . On the day that the court granted Turner's motion for substitution of counsel, Wilensky turned over to Smyth "all subpoenas, psychiatric letters, the police reports, [and] the results of [her] discovery," and promised to also forward to him a summary of her investigation reports. After taking over Turner's defense, Smyth did almost nothing-- in the words of the magistrate judge, he exhibited "a startling lack of preparation for trial"--failing to perform even the most basic investigative tasks. In a declaration prepared for purposes of these habeas proceedings, Smyth admits that his only preparation for trial consisted of reviewing the transcript of the preliminary hearing and spending between twenty and forty five minutes interviewing Turner. He acknowledges that he made no attempt to find or interview any prosecution or defense witnesses, although Turner had told him of the existence of individuals who "had been badly beaten and choked by the victim" and he knew that the prosecution was planning to call Turner's housemates to the stand. He also concedes that he did "not recall reviewing any file, psychiatrist report or document" provided by Turner's public defender; he therefore did not discover the existence of witnesses who would have corroborated Turner's testimony about past abuse by Dennis, and did not realize that Dr. Davis had evaluated Turner and written a report that was in the file. Accordingly, Smyth did not offer the psychiatric report into evidence or call Dr. Davis as a witness at trial.

24 Id. at 452-53 (emphasis added). 25 Relying on Sander, Burrows, and Evans, the Ninth Circuit Court of Appeals 26 found defense counsel's failure to investigate particularly egregious because he had 27 the very materials necessary to make a reasonable investigation of his client's 28 mental condition in the case file prepared by his predecessor:
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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

In this case, as noted by the magistrate judge, "Smyth not only failed to make a reasonable investigation of the events surrounding Dennis's slaying, he made no investigation at all." Moreover, in addition to failing to conduct his own investigation, Smyth did not even bother to review the readily available summary of the investigation conducted by Turner's previous attorney, and therefore could not pursue any leads already developed or assess the value of the information already assembled. This inexplicable failure to do even the most minimal investigation cannot be viewed as a strategic decision. Id. at 456 (emphasis added); see also id. at 451 ("Turner's attorney failed to take even the most basic steps to investigate and prepare Turner's defense, although evidence relevant to his mental state was readily available and could have been discovered simply by reading the case file. This deficient representation deprived Turner of the best evidence that he could have presented to corroborate his testimony that he had killed the victim, Arthur Dennis, while in a state of anger and fear due to months of severe physical and sexual abuse.") (emphasis added). Whereas the attorney in Turner had constructive notice of information that could support a viable mental-state defense, defense counsel in Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002), had actual knowledge of the defendant's mental health and drug abuse problems: Mr. Oliver knew, for example, that Mr. Jennings was a longterm methamphetamine addict who had used the drug on the night of the homicide. Mr. Oliver knew his client had told police he had been "strung out" on the drug for over a year. And that he had attempted suicide. And that his ex-wife told police he was "crazy" and had been diagnosed as schizophrenic. And that he had a long history of injuring himself intentionally and pouring liquids in the resulting wounds, thereby causing gangrene. And that he had been involuntarily committed by a judge for psychiatric evaluation. And that he appeared to have been coming off drugs during his videotaped interview with police. And that the newly-minted paralegal Mr. Oliver had hired thought there was something "seriously wrong" with Mr. Jennings. And that friends and co-workers agreed.
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1 2 Id. at 1015 (emphasis added); see also id. at 1013-14 ("Nor did [counsel] seek the 3 appointment of additional experts to evaluate Mr. Jennings' mental state or the 4 possible effects of methamphetamine on such a heavy, long-time user, despite the 5 fact that [counsel] knew a syringe had been found in Mr. Jennings' car and that he 6 knew that his client had reported to the police that he had been `strung out on 7 goddamn crank for over a year. That's why I was having such a hard time 8 remember what the hell I was doing and where.") (emphasis added); id. at 1014 9 ("Nor did [counsel] follow up on the report of Theresa Jennings--counsel's former 10 divorce client and Mr. Jennings' former wife--that Mr. Jennings had attempted 11 suicide, that a psychiatrist had told her ex-husband he was schizophrenic, and that 12 she believed he was crazy. Nor did he investigate an incident--of which he had 13 knowledge--in which a judge ordered Mr. Jennings committed involuntarily for 14 psychiatric evaluation because he appeared catatonic."). 15 Unlike Evans, Burrows, Sanders, Seidel, and Jennings, cases in which 16 defense counsel had actual notice of facts warranting further investigation,
th 17 Douglas v. Woodford, 316 F.3d 1079 (9 Cir. 2003), presents a scenario similar to

18 that presented in Turner, wherein defense counsel possessed material that, if read, 19 would have alerted him to the viability of, and need to investigate, a mental state 20 defense. In Douglas, defense counsel ordered and reviewed the case file from an 21 earlier prosecution against the defendant, but simply overlooked an order contained 22 in that file directing a psychiatric expert to examine the defendant. Id. at 1086-87. 23 Had counsel realized that the file in his very possession contained this order, he 24 could have learned that the evaluating doctor concluded that the defendant was 25 suffering from "serious and outstanding mental illness and possible organic 26 impairment," that the defendant was not competent to stand trial in 1977, and that 27 the accused did not have the capacity to plan and execute the actions with which he 28 had been charged in that case. Id. Thus, Douglas is a case in which counsel had
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1 constructive notice of information that would warrant a mental-health 2 investigation, but failed to do so.2 3 As previously noted, Mr. Syme had neither actual nor constructive notice of 4 Petitioner's alleged mental problems. Thus, Evans, Burrows, Sanders, Seidel, 5 Turner, Jennings, and Douglas are inapposite to the instant case and thus do not 6 warrant habeas relief. 7 Likewise, Deutscher, the sole remaining case cited by the court in its 8 October 20, 2004 Order, is inapplicable to the instant case. In this unique case, 9 defense counsel's sole mitigation argument on behalf of the capital defendant was 10 that his client "must have had had some sort of mental problem," but inexplicably 11 counsel "did not even consider presenting evidence of Deutscher's mental 12 problems or any other mitigating evidence at the penalty phase hearing." 884 F.2d 13 at 1159. The Ninth Circuit found deficient performance because "counsel decided 14 to defend on the basis of petitioner's psychiatric problems, but did not even 15 consider investigating evidence which would have bolstered that defense." Id. at 16 1160. In the instant case, Mr. Syme did not argue that Petitioner's sentence should 17 be mitigated because of mental impairments, but instead contended that Petitioner 18 was not responsible for the worst of Allen's injuries. (Exhibit J to Answer, R.T. 19 1/11/99, at 15-17.) 20 Respondents observe, with concern, that the court's October 20, 2004 Order 21 contains language seemingly reflecting the view that the Sixth Amendment 22 requires counsel to conduct an investigation before ruling out the viability of a 23
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2

24

Not every source of information suggesting mental impairment is sufficient 25 to constitute constructive notice of a defendant's mental deficiencies. Compare Hensley v. Crist, 67 F.3d 181, 186 (9th Cir. 1995) ("The police report alone [which 26 opined that the defendant was mentally disturbed and posed a threat to himself and others] is not sufficient to put Hensley's counsel on notice. Notice to counsel that 27 an insanity defense requires a stronger indication of mental illness in the client's record such as past institutionalization or highly unusual behavior."). 28
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1 certain defense, even when neither the defendant nor the circumstances of the 2 crime place counsel on notice of the defense's potential applicability: 3 4 5 6 7 8 9 In Jennings, the Ninth Circuit stated that the district court misconstrued Hendricks in concluding that counsel's performance was not deficient because he lacked notice that Jennings had any mental problems and thus had no reason to conduct an investigation. 290 F.3d at 1014. The Ninth Circuit stated that "[t]he Hendricks3 court acknowledged what Strickland mandates: that attorneys have considerable latitude to make strategic decisions about what investigations to conduct once they have gathered sufficient evidence upon which to base their tactical choices." Id. (emphasis in original).

10 (Docket No. 26, at 5-6, fn. 5; emphasis in bold added.) 11 Respondents take issue with this prospective position, for several reasons. 12 First, Jennings does not stand for the proposition that an attorney must consider 13 and investigate defenses not suggested by the defendant or the circumstances of the 14 crime. As previously stated, the attorney in Jennings had actual knowledge of 15 multiple facts demonstrating that the defendant suffered from mental illnesses and 16 a severe methamphetamine addiction. Instead of conducting follow-up 17 investigation to pursue these promising leads that might support successful mental 18 defenses at trial, counsel "ruled out those defenses not because he concluded after 19 reasonable investigation that they were not viable, but because he settled on an 20 alibi defense and abandoned all investigation into psychiatric factors." 290 F.3d at 21 1014. 22 Because the Court observed that the Ninth Circuit distinguished Hendricks 23 from Jennings, Respondents find it necessary to note the facts that mandated this 24 distinction: (1) in Hendricks, defense counsel was justified in not conducting 25 further investigation into mental defenses because he had "hired experts who found 26 27 28
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Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995).
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1 no evidence of mental disorders after lengthy [20 hours] examination specifically 2 geared toward finding any possible defenses" Jennings, 290 F.3d at 1014; but (2) 3 the attorney in Jennings elected to pursue an alibi defense instead of a mental 4 defense, based solely on a 2-hour competency evaluation that was "very 5 preliminary and not meant to specifically rule out mental defenses" id. at 1014-15. 6 Thus, the Ninth Circuit found that the attorney in Jennings could not justify his 7 failure to investigate a mental defense based upon the aforementioned competency 8 evaluation. Furthermore, the Jennings court also observed that defense counsel 9 admitted his pretrial awareness of People v. Mozingo, 671 P.2d 363 (Cal. 1983), a 10 California Supreme Court case decided after Hendricks' trial, which held that "a 11 possible conflict between a diminished capacity and an alibi defense would not 12 excuse counsel's failure initially to investigate the potential strengths of a `mental 13 defense' vis-a-vis an uncorroborated alibi defense." Jennings, 290 F.3d at 1016 14 (quoting Mozingo, 671 P.2d at 367 (emphasis in original)). 15 Even assuming that Jennings stands for the proposition that an attorney 16 renders deficient performance by failing to investigate defenses of which counsel 17 has no notice, habeas relief is not mandated, for two reasons. First, Jennings is 18 only an opinion of the Ninth Circuit, not the Supreme Court. As Respondents 19 argued in their motion for reconsideration (Docket No. 27), a court may not habeas 20 relief unless the state court's adjudication of a claim "resulted in a decision that 21 was contrary to . . . clearly established Federal law, as determined by the Supreme 22 Court of the United States." 28 U.S.C. § 2254(d)(1); see also Clark v. Murphy, 331 23 F.3d 1062, 1069 (9th Cir. 2003); Roe v. Houston, 177 F.3d 901, 905 (9th Cir. 1999). 24 Second, habeas relief based upon Jennings would be improper because its 25 26 27 28
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putative holding runs counter to a large body of precedent holding otherwise. For example, while rejecting this very proposition, the Seventh Circuit Court of Appeals stated:

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

This Court rejected a claim similar to Balfour's in United States ex rel. Rivera v. Franzen, 794 F.2d 314 (7th Cir. 1986), a case which also involved a habeas appeal of a murder conviction by a defendant who had spent time in mental hospitals, who was taking Thorazine, and who admitted killing the victim--leaving available only selfdefense or intent-based defenses. The district court in that case found that although the defense attorney had had no reason to know of his client's depression with suicidal tendencies, the attorney nonetheless had failed in executing his responsibility to investigate all available defenses, including insanity. In reversing a finding of ineffective assistance of counsel, this Court stressed that: the issue here is not whether it is advisable or "good practice" for a defense attorney to inquire as a matter of course into his client's mental capacity. Rather, the issue is whether a failure to do s