Free Motion to Appoint Expert - District Court of Colorado - Colorado

Case 1:04-cv-01072-ZLW-BNB

Document 63

Filed 10/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents.

MOTION TO PERMIT APPOINTMENT OF AN INVESTIGATOR AND REQUEST TO CONTINUE BRIEFING SCHEDULE

COMES NOW John E. Lopez, Applicant in the above-styled action and hereinafter referred to as "Applicant," by and through undersigned counsel, and moves this Court to enter an order permitting the appointment of an investigator and that the briefing schedule be continued. In support of this motion, the Applicant states as follows: 1. Applicant's amended petition is currently due to be filed on October 14, 2005. 2. Undersigned counsel was appointed on July 19, 2005 to represent the Applicant during his habeas corpus proceedings. 3. Undersigned counsel has now completed his review of the entire record, including viewing the thirty (30) hours of video taped interviews of the Applicant. In addition, counsel has met with the Applicant on October 5, 2005 at the Arkansas Valley Correctional Facility in Crowley, Colorado. 4. After conducting a preliminary investigation regarding the facts of this case,

undersigned counsel is convinced that a private investigator is necessary to establish that

Case 1:04-cv-01072-ZLW-BNB

Document 63

Filed 10/14/2005

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the state court's decision "resulted in a decision that was based on an unreasonable determination of the facts..." See 28 U.S.C. Section 2254(d). Additional facts are necessary to establish that the Applicant's mother, Mrs. Lopez, was acting as an agent of the police and that Applicant's statements were not voluntary. Central to this issue is Applicant's claim of innocence. Undersigned counsel asserts that an investigator will facilitate Applicant's claims and allow this Court to properly evaluate the issues presented. The substance and focus of the investigation remains confidential and

protected by the attorney-client privilege. 5. Undersigned counsel has contacted David L. Williams, 150 East Tenth Avenue, Denver, Colorado 80203, (303) 832-5113, who has agreed to serve as a private investigator under the CJA provisions, to pursue the Applicants claims of innocence. Mr. Williams has previously served as an investigator in federal court proceedings pursuant to the CJA act. 6. Following the completion of the investigator's work, counsel requests the opportunity to file his amended petition on behalf of the Applicant. It is anticipated that an additional sixty (60) days will be needed to conduct the necessary investigative work in this case as well as file supplemental pleadings subsequent to this Court approving the appointment of an investigator. Although counsel will make every effort to have the investigation completed in sixty (60) days, the time involved will obviously be dependent on the investigator's schedule and other commitments in his office. 7. This Motion is made in good faith, and not for the purpose of delay. No prejudice could inure to any party as a result of the granting of this motion as the Applicant remains incarcerated serving a life sentence.

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Case 1:04-cv-01072-ZLW-BNB

Document 63

Filed 10/14/2005

Page 3 of 3

WHEREFORE, the Applicant respectfully requests that this Honorable Court grant his Motion to permit the appointment of an investigator under the CJA provisions as well as continue the briefing schedule. Alternatively, if this Court denies counsel's request for appointment of a private investigator, an additional thirty (30) days is required to supplement Applicant's petition.

DATED this 14th day of October, 2005.

Respectfully submitted,

s/Robert G. Levitt Robert G. Levitt, Esq. Counsel for Applicant Colorado Reg. 24252 600 17th Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 Email: [email protected]

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by first class mail this 14th day of October, 2005 to: Cheryl Hone, Esq. Assistant Attorney General Office of the Attorney General 1525 Sherman Street, 5 th Floor Denver, Colorado 80203

s/Robert G. Levitt Robert G. Levitt, Esq.

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