Free Memorandum - 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 Attorney for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA _______________________________________ ) Jaime Flores, ) No.: CV-02-2065-PHX-DGC(MS) ) Petitioner, ) ) PETITIONER'S SUPPLEMENTAL v. ) MEMORANDUM ADDRESSING THE ) REQUESTED NINTH CIRCUIT Terry Stewart, Director of Arizona ) CASES Department of Corrections; and the ) Attorney General of the State of Arizona, ) ) Respondent, ) _______________________________________) The Petitioner offers this Memorandum to Supplement his prior filings. The prior filings of Petitioner are incorporated herein as though fully set forth. On October 18, 2004 Judge Campbell issued an Order directing that this matter be referred back to the Magistrate to receive arguments from the parties as to the affect, if any, of several Ninth Circuit decisions not previously addressed on the Report and Recommendation of the Magistrate Judge. This Memorandum is offered by the Petitioner to address the issues raised by those cases. The District Court directed the parties to address several cases of the Ninth Circuit which relate, at least in part, to the issue of an attorney's obligation to properly investigate a matter on behalf of a client. Such was the posture of the case at the time of the introduction of undersigned counsel to represent Mr. Flores. Counsel has reviewed these cases and provided copies to Mr. Flores. Each of these cases reiterate the claim raised by the Petitioner seeking the relief of the District Court. Specifically, counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary. See, Evans v. Lewis, 835

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F.2d 631, 636 (9 th Cir. 1988), quoting, Strickland v. Washington, 466 U.S. 668, 691 (1984); United States v. Burrows, 872 F.2d 915, 917 (9 th Cir. 1989). However, Strickland also directs that counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client. Sanders v. Ratelle, 21 F.3d 1446, 1456 (9 th Cir. 1994), citing, Strickland v. Washington, 466 U.S. at 689. However, the court has held that counsel cannot be said to have made a strategic decision when he has not yet obtained the facts on which such a decision would be made. Sanders v. Ratelle, at 1457, citing United States v. Gray, 878 F.2d 702, 711 (3 rd Cir. 1989). This obligation to conduct an investigation arises upon either actual or constructive notice to counsel of an issue such as the client's mental health. Seidel v. Merkle , 146 F.3d 750, 755-56 (9 th Cir. 1998) It seems that the record reflects that actual notice (from the defendant) may have been made to either Ms. Stark or subsequent trial court counsel, Mr. Syme. The record as to constructive notice has not been developed. Second, each case sets forth 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. Id. 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". Several of these cases address the Petitioner's right to an evidentiary hearing. See, United States v. Burrows, 872 F.2d 915 (9 th Cir. 1989).; Seidel v. Markle, 146 F.3d 750 (9 th Cir. 1989); Seealso, Townsend v. Sain, 372 U.S. 293 (1963). The Petitioner's right to an evidentiary hearing is largely discretionary with the District Court judge. Id. In Townsend the United States Supreme Court set forth six specific circumstances under which the federal court must grant an

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evidentiary hearing. 1 The six circumstances are as follows: 1. The merits of the factual dispute were not resolved in the state hearing; 2. The state factual determination is not fairly supported by the record as a whole; 3. The fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; 4. There is a substantial allegation of newly discovered evidence; 5. The material facts were not adequately developed at the state-court hearing (modified by the Keeny decision as set forth in footnote 1 herein); or 6. For any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend, 372 U.S. at 757. Clearly, in the present matter, the Court has the discretion to grant the Petitioner an evidentiary hearing to receive testimony and other evidence impacting the decision on the merits of Petitioner's claim. Petitioner asserts that the court should exercise its discretion to hold such a hearing. The Petitioner has raised facts which, if believed, would necessitate granting the relief he has requested. In support of this urging of Petitioner, the Petitioner reminds the court that he has never been permitted an evidentiary hearing as to the claims raised in his §2254 Petition. The State court denied relief without hearing and the Magistrate has recommended the same (See, Report and Recommendation, June 9, 2004; and Exhibits A- D). These facts also fall within the criteria set forth in Townsend which require an evidentiary hearing. 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

1

Townsend was reversed in part by Keeny v. Tamayo-Reys, 504 U.S. 1 (1992). The extent of the

reversal was limited to the conditions under which a hearing is required. Keeny held that a hearing is not mandatory under Townsend's fifth circumstance unless the Petitioner could show cause for failing to develop the facts in the state court and prejudice resulted therefrom.

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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. See, Exhibits AD. The state court procedures seem to have been terminated by a summary dismissal. See, Exhibit C. 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. It also appears that criteria two and three support an evidentiary hearing. The Petitioner has presented facts which support a grant of relief of 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. At the time of this writing, it is not clear that the trial court made adequate findings of fact (or any findings of fact at all) from which this court could determine whether a decision was made on the merits pursuant to the proper constitutional standards. Such failure by the state court is the subject of much discussion in Townsend v. Sain, 372 U.S. 293, 313-14 (1963). In relevant part, Townsend makes three statements of particular relevance to this issue: There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant. Thus, if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts. ...... If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing. .....

26 27 28 Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the

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petitioner's contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts. Townsend, 372 U.S. at 313-14.

4 In the present matter, the state trier of fact made no factual findings whatsoever. Neither 5 did the state trier of fact make any statement as to its conclusions of law as applied to this 6 petitioner's claims. The state trier of fact said, simply, it read it and denied it. 7 The Petitioner requests an evidentiary hearing and that his Writ be granted. 8 9 10 Respectfully submitted this 30th day of September, 2005. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ Mark A. Paige Mark A. Paige Copy of the foregoing was mailed/delivered this 30th day of September , 2005 to: Robert A. Walsh Assistant Attorney General Criminal Appeals Section 1275 W. Washington Phoenix, AZ 85007-2997 Jaime Flores S/ Mark A. Paige MARK PAIGE Attorney for Petitioner

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