Free Reply to Response to Motion - District Court of Arizona - Arizona

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

Jon M. Sands Federal Public Defender Michael L. Burke (Arizona Bar No. 013173) Justin F. Marceau (California Bar. No. 243479) Assistant Federal Public Defenders 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 [email protected] [email protected] Telephone: (602) 382-2816 Facsimile: (602) 889-3960 Attorneys for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Richard Farrall, Jr., Petitioner, vs. Dora B. Schriro and the Arizona Attorney General, Respondents. Petitioner hereby simultaneously replies to the State's No. CV 04-00260-PHX-EHC Reply to Supplemental Answer and Reply to Response to Motion For Evidentiary Hearing

SUPPLEMENTAL ANSWER and RESPONSE TO MOTION FOR EVIDENTIARY HEARING.1 The State's pleading lacks merit for four distinct reasons: (1) Petitioner has alleged colorable claims of constitutional harm that are cognizable on federal habeas review (USDC Doc. No. 57 at 1434); (2) The State misstates the standard for obtaining an evidentiary hearing, urging this Court to ignore binding Circuit law (USDC Doc. No. 58 at 4-7); (3) The State misapprehends what is required under 28 U.S.C. § 2254(e)(2) (USDC Doc. No. 58 at 6-8); and (4) The State ignores the distinct exhaustion

In view of the long and complicated procedural history for this case, Petitioner has consolidated these two pleadings in order to facilitate the Court's review of this case.
Page 1

1

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 1 of 24

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

requirements that apply to pro per petitioners (USDC Doc. No. 58 at 8-12). The State has opposed evidentiary development at every turn in this case, and Petitioner has been pro per and unable to retain the services of experts to investigate his case and develop the precise contours of his claims that his plea was involuntary. Now, for the first time in over ten years, Petitioner has appointed counsel, has begun to gather the evidence of manipulation and deceit that support his claims of constitutional injury, and the State argues that these factual developments are too late and procedurally improper. For the reasons set forth below, the State's arguments are incorrect as a matter of law, and unseemly as a matter of justice. I. Petitioner Has Alleged Colorable Claims of Constitutional Injury. For purposes of establishing his entitlement to an evidentiary hearing, Petitioner must allege a colorable claim of constitutional injury.2 In its Supplemental Answer, the State focuses on what it views as "overwhelming evidence" of guilt; however, at this stage of litigation (pre-hearing), evidence based arguments are premature. Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir.1998). A colorable claim turns not on evidence of constitutional harm, but on allegations of constitutional injury. Id. ("In showing a colorable claim, a petitioner is required to allege specific facts which, if true, would entitle him to relief.") (internal citations omitted); see also Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). Specifically, Petitioner wishes to clarify two points with regards the substance of the claims for which he has requested a hearing: (1) the claims are properly before this Court for purposes of assessing whether they are colorable; and (2) each of the claims presents a colorable allegation of constitutional injury that justifies a brief federal hearing. See infra Sections II and III (discussing the relationship between a colorable claim and a petitioner's right to a federal hearing).
Page 2
2

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 2 of 24

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

A.

The Claims Presented in Petitioner's Motion For Evidentiary Hearing are Properly Before this Court.

The State argues that two of the claims discussed in Petitioner's Motion for Evidentiary Hearing are not yet properly before this Court. (USDC Doc. No. 57 at 6 n.5). Specifically, the State suggests that Petitioner should amend his federal habeas petition so as to more clearly address these claims. Id. Because the pro per pleading rules governing Petitioner's habeas petition dictate that the claims were adequately presented, and in view of the fact that Counsel has announced the relevance of these issues through the Motion for a Hearing, any additional filings on these claims, prior to a hearing, would constitute an unnecessary use of this Court's time. Accordingly, Petitioner respectfully requests that this Court assess Petitioner's eligibility for a hearing as to each of the claims addressed in his Motion for an Evidentiary Hearing. (USDC Doc. No. 52 at 9-16). First, under the liberal pleading standards applicable to pro per pleadings, the State's suggestion that Petitioner is raising "new claims" is without merit. See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (holding that "less stringent standards" must be applied in assessing whether pro per pleading puts opposing party on notice of claims). As a general matter, courts reviewing pro per pleadings are required to "afford [the petitioner] the benefit of any doubt in ascertaining what claims he raised." Id. (internal citations omitted). In the instant case, the State argues that two of Petitioner's colorable claims were not previously presented to this court: "(1) judicial involvement in the plea was coercive; and (2) denial of counsel at hearing to withdraw

Page 3 Case 2:04-cv-00260-EHC-BPV Document 59 Filed 06/19/2008 Page 3 of 24

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

plea." (USDC Doc. No. 57 at 6 n.5).3 As to the denial of counsel claim, the State's suggestion that this claim has not been presented to this Court is patently incorrect. Ground I of Petitioner's federal habeas petition relates to Sixth Amendment claims, and Petitioner unequivocally avers that trial counsel abandoned Petitioner at his Withdrawal of Plea Hearing by "refus[ing] to argue on his behalf, [and] leaving Petitioner to Fend for himself." (Habeas Petition at 5B). Although the heading for this claim addresses one of Petitioner's other claims ­ i.e., "Defendant Was Coerced and Intimidated into accepting his plea agreement" ­ there can be no doubt that Petitioner presented this claim of Sixth Amendment harm to the Court under the standards governing pro per pleadings. See Skaff v. Meridien N. Am. Beverly Hills, 506 F.3d 832, 839 (9th Cir. 2007). Applying the less rigid standards applicable to pro per pleadings to Petitioner's habeas petition, the State's argument that the claim of judicial coercion has not been presented is similarly without merit. Petitioner argued to this Court that, "Even the Hon. Reinstein tried to persuade Petitioner to accept the plea agreement." (USDC Doc. No. 1at 5a). To be sure, this not a model of briefing clarity, but affording Petitioner the "benefit of any doubt" requires that Petitioner's allegation that Judge Reinstein was improperly persuading him to accept the plea be adjudicated. See Morrison v. Hall, 261 F.3d 896, 899 n. 2 (9th Cir. 2001). Indeed, the Ninth Circuit has expressly held that a pro per pleading need not even "identify the statutory or

The State concedes that the other four claims discussed in Petitioner's Motion for Evidentiary Hearing are properly and fully before this Court. (USDC Doc. No. 57 at 6 n.5) (identifying two claims that are not yet before the Court).
Page 4

3

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 4 of 24

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

constitutional source of the claim in order to survive a motion to dismiss."4 Alvarez, 518 F.3d at 1157. Accordingly, the State's failure to respond to these constitutional allegations in either its Answer, or its Supplemental Answer constitutes an effective waiver its right to object to an evidentiary hearing on these claims.5 Alternatively, if this Court does not find that Petitioner presented these two claims in his initial pro per federal habeas petition, it is appropriate for the Court to treat Petitioner's Motion for Evidentiary Hearing as properly presenting these claims. Erickson v. Pardus, __U.S. __, 127 S.Ct. 2197, 2200 (2007) (per curiam) (looking beyond a complaint to "later filings" in order to assess whether a claim was raised). The Ninth Circuit has expressly recognized that if an initial pro per complaint or petition does not adequately present an issue, it is necessary for the Court to look to subsequent pleadings filed in the action. Alvarez, 518 F.3d at 1157 (treating a claim as fairly presented because "Alvarez's subsequent filings" provided the critical " factual allegations and legal theories"). In other words, because Petitioner was pro per when he filed his federal habeas petition, it is necessary for this Court to treat the subsequent Motion for Evidentiary Hearing as sufficient for purposes of properly presenting the two claims in question. Id.

Notably, the motion to dismiss standard in civil litigation is the functional equivalent of the colorable claim standard in federal habeas litigation. A habeas petitioner is entitled to an evidentiary hearing (i.e., is not subject to a motion to dismiss) if the allegations in his petition, taken as true, entitle him to relief. Rule 8, Rules Governing Section 2254 Cases In the United States District Court (Committee Notes) (citing Townsend v. Sain standard for an evidentiary hearing). Petitioner acknowledges that he is not entitled to habeas relief unless he can establish a constitutional violation, 28 U.S.C. § 2254(a). Accordingly, the State retains its right to litigate these issues during an evidentiary hearing during which Petitioner would attempt to conclusively develop the evidence in support of his claims; however, by failing to respond to these claims in their answer, the State has waived any objection to a hearing as to these claims.
Page 5
5

4

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 5 of 24

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

Accordingly, all six claims discussed in Petitioner's Motion for Evidentiary Hearing are properly before this Court for purposes of determining whether an evidentiary hearing is warranted.6 B. The Claims Presented Are Colorable. In his Motion for Evidentiary Hearing, Petitioner summarized for the Court the six claims on which he seeks an evidentiary hearing. (USDC Doc. No. 52 at 10-16). In its Answer, the State argued that two of these claims have not yet been presented to this Court. See supra Section I(A).7 The State addressed on the merits three of Petitioner's claims. (USDC Doc. No. 57 at 1431).8 The State failed to address Petitioner's allegation that he received constitutionally ineffective assistance of counsel at his sentencing hearing. (USDC Doc. No. 52 at 12-13). And finally, the State addressed a suppression of evidence claim that Petitioner did not rely on in his request for an evidentiary hearing. (USDC Doc. No. 57 at 31). Petitioner submits that the State has waived the right to object to a hearing as to the three claims presented in the Motion for Evidentiary Hearing which the State did not address.9 As to If this Court prefers, Counsel will file a complete amended petition on behalf of Petitioner. Petitioner submits, however that the pro per petition read liberally and in light of the Motion for Evidentiary Hearing is sufficient to put all of the issues before the Court. Therefore, in the interest of judicial economy, and in view of the fact that a hearing in this case should not take much of this Court's time, Petitioner requests that the constitutional questions presented by Petitioner be adjudicated in a brief evidentiary hearing. Addressing the assertion that the judicial coercion and the ineffective assistance at the plea withdrawal hearing claims are not properly presented. Addressing the following claims: Ineffective Assistance of Counsel resulting in involuntary plea; Coercion by counsel resulting in involuntary plea, and unlawful alterations in the plea agreement. The three claims the State failed to address are: (1) Ineffective assistance of counsel at the withdrawal of counsel hearing; (2) judicial coercion by the judge; and (3) ineffective assistance of counsel at sentencing. (USDC Doc. No. 52 at 12-14). On balance, the equities favor a waiver in this case. First, Petitioner has asserted his innocence for more than ten years, proceeded pro per, and never had an evidentiary hearing on his claims. The
Page 6
9 8 7 6

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 6 of 24

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

three claims addressed by the State, Petitioner largely relies on his habeas petition and the concise summaries in his Motion for Evidentiary Hearing; he will, however, respond briefly as to each claim. 1. Ineffective Assistance of Counsel Resulting in Plea. The State argues that Petitioner's counsel provided constitutionally reasonable representation for purposes of the Sixth Amendment because the "conduct at issue amounted to the sound advice of counsel." (USDC Doc. No. 57 at 26). This reasoning underscores the fundamental need for an evidentiary hearing in this case by highlighting the disparate interpretations of the facts at issue in this case. A brief hearing is required at which time the Court, as a finder of fact, can, once and for all, determine the material questions of fact that are at the heart of Petitioner's constitutional claims. See Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2004). The crux of the State's argument is that if "Petitioner was found guilty of the charges, any verdict would require consecutive sentencing resulting in sentences in excess of 200 years." (USDC Doc. No. 57 at 26). This argument necessarily presupposes Petitioner's guilt.10 Unfortunately, for the State, Petitioner's allegations of involuntariness are premised on strong evidence of innocence that trial counsel failed to investigate and discover. As set forth in

delay associated with his efforts to correct the injustice in this case have been compounded by the fact that Petitioner's habeas petition was, in the first instance, erroneously denied as untimely. Moreover, after agreeing on the record to reply to Petitioner's motion for an evidentiary hearing in seven days, (USDC Doc. No. 50) the State requested and was granted more than two months worth of extensions. The State seeks to drag these proceedings on by reserving their right to "address" these claims, but this sort of dilatory conduct should not be condoned. The State asserts that Courts "routinely" reject as "self-serving" postplea averments by defendants, but the State fails to note that none of the cases relied on by the State have an analogous factual situation wherein the Petitioner has developed a vast array of compelling evidence of innocence. (USDC Doc. No. 57 at 26-28).
Page 7
10

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 7 of 24

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

the Motion for Evidentiary Hearing, (USDC Doc. No. 52 at 5-10), after a relatively brief period of investigation, Counsel for Petitioner has uncovered substantial and material evidence of false statements to police, witness tampering, and innocence. The State's argument that Counsel provided adequate representation might have merit if the evidence of Farrall's guilt is, as the State claims, "overwhelming." However, in view of the profound evidence relevant to this question of guilt, and the fact that petitioner has never had an opportunity to have this evidence presented and tested by a finder of fact, it would be inappropriate to deny Petitioner an evidentiary hearing on this claim. Clearly, the State must not be arguing that even if Petitioner is innocent of the crimes for which he was charged, he is not entitled to an evidentiary hearing because his counsel's representation in urging him to plead to guilty was constitutionally adequate. Instead, the State seems to take for granted that there is no credible evidence of Petitioner's innocence. (USDC Doc. No. 57 at 26-28). In assessing whether Petitioner is entitled to evidentiary hearing, however, the question is whether Petitioner has alleged a colorable claim. Insyxiengmay 403 F.3d at 670. In evaluating whether Petitioner is entitled to an evidentiary hearing, this Court's task is to determine whether Petitioner has made allegations which, taken as true, would warrant relief. Id. Petitioner has alleged that his counsel deficiently advised and pressured him to accept the plea despite the fact that Petitioner was innocent. Notably substantial evidence corroborates this allegation of innocence. (USDC Doc. No. 52 at 5-10). The State has not, (and cannot at this stage) refuted or attempted to refute the evidence of innocence summarized in Petitioner's Motion for Evidentiary hearing. (USDC Doc. No. 52 at 5-10). In short, the argument that an attorney provides constitutionally adequate representation when he succeeds in persuading his innocent and emotionally
Page 8

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 8 of 24

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

unstable client to accept a plea is specious. Strickland v. Washington, 466 U.S. 668, 690 (1984) (requiring the attorney to provide reasonable representation in light of the specific circumstances). The fact that counsel may have acted with sufficient competence if Petitioner was guilty has no relevance in circumstances where, as here, Petitioner has alleged a colorable claim of involuntariness based on his innocence.11 Petitioner has alleged that his plea was involuntary, and this claim is supported by a growing body of evidence suggesting that Petitioner is innocent. (USDC Doc. No. 52 at 5-10). Petitioner is entitled to a hearing at which time, in view of the substantial and readily available evidence of innocence, this Court can evaluate, among other things, whether counsel provided deficient performance under these facts by urging his client to accept the plea.12 2. Attorney Coercion. In his Motion for Evidentiary Hearing, Petitioner alleged that the fact of his fragile psychological state, which could be developed through expert testimony at a hearing, rendered him uniquely susceptible to his attorney's rage-induced call for him to accept the plea. (USDC Doc. No. 52 at 11-12). Because the hallmark of a valid plea is voluntariness, taking Petitioner's allegation that his guilty plea was rendered unknowing and involuntary by the circumstances and stressors surrounding his relationship with counsel as true, Petitioner is entitled to an evidentiary hearing on this claim. See Bradshaw v. Contrary to the representations of the State, Petitioner notes that, at this point, he has not alleged a freestanding claim of innocence. (USDC Doc. No. 58 at 10-11) (arguing that a free-standing claim of actual innocence is not cognizable). Petitioner relies on the significant evidence of innocence by way of demonstrating that his allegations of deficient performance and prejudice are substantial and colorable. This Court may ultimately reject the evidence produced by Petitioner as insufficient to meet his burden for relief, but Petitioner's eligibility for a hearing turns on the constitutional force of his allegations, not the State's onesided characterization of the evidence. Insyxiengmay, 403 F.3d at 670.
Page 9
12 11

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 9 of 24

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

Stumpf, 545 U.S. 175, 183 (2005) (recognizing that the involuntariness of a plea turns on an awareness of the "relevant circumstances and likely consequences"). The State argues that this claim is not cognizable under the Constitution, and alternatively, that the evidence in the record does not support this claim. As to the former argument, the State's claim that "coercion by defense counsel [can never] amount to a federal constitutional question" ignores the firstprinciple of plea bargains: they must be knowing and voluntary. (USDC Doc. No. 57 at 16). If a guilty plea is not the product of a reasoned and intelligent decision making process, either because the plea colloquy was inadequate, or because the defendant was temporarily incompetent, the constitution dictates that the plea is invalid. See Tanner v. McDaniel, 493 F.3d 1135, 1146 (9th Cir. 2007). In other words, an involuntary plea, regardless of the cause, represents a constitutional harm cognizable on federal habeas review. See Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004) (recognizing that a wide range of conduct might "imping[e] on the defendant's ability to enter an intelligent, knowing and voluntary plea"). The State's alternative argument is similarly unavailing. The State concludes that Petitioner cannot obtain relief on this claim because there is "overwhelming" evidence of guilt in the record. (USDC Doc. No. 57 at 1720). To this end, the State quotes the pre-sentence report, the plea colloquy, and other evidence in the record. (USDC Doc. No. 57 at 17-20). The fact remains, however, that Petitioner has alleged that he was incapable of entering a knowing and voluntary plea. The State's view that Farrall received a favorable deal by accepting the plea, (USDC Doc. No. 57 at 17), is immaterial to the question of whether the plea was in fact voluntary. An involuntary or unknowing plea is unconstitutional, and Petitioner is entitled to a hearing because he has alleged that the plea was coerced and, therefore, involuntary.
Page 10

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 10 of 24

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

(USDC Doc. No. 52 at 11-12). 3. Facially Void Plea. The position advanced by the State with regards to the un-consented manipulations to Petitioner's plea agreement is disconcerting. Based on the argument advanced by the State, there could never be a constitutional violation when a prosecutor alters without consent a plea agreement after it has been signed by the defendant. See, e.g., USDC Doc. No. 57 at 31 ("No federal constitutional right is implicated in modifying the plea agreements."). In the State's view, unilateral manipulations to a plea agreement conducted by the prosecution before the agreement is "accepted by the Court," will never give rise to a cognizable claim under the constitution. (USDC Doc. No. 57 at 3031) (arguing that, at most, this implicates mere "state law issue[s]"). For the reasons set forth in Petitioner's Motion for Evidentiary hearing, Petitioner respectfully submits that unilateral manipulations to a plea agreement will, in certain circumstances, render a plea involuntary, and therefore unconstitutional. (USDC Doc. No. 52 at 15).13 II. A Hearing is Required Because Farrall has Stated a Colorable Claim. The State argues that Petitioner's reliance on Townsend v. Sain, 372 U.S. 293 (1963) is improper and that the colorable claim standard no longer governs the determination of whether petitioner is entitled to a federal hearing. (USDC Doc. No. 58 at 5-7). The tenuous nature of this argument highlights the Petitioner notes that the State failed to offer any explanation, much less a constitutionally tenable explanation, for the enforcement of a plea agreement that was expired. As pointed out in Petitioner's Motion for Evidentiary Hearing (USDC Doc. No. 52 at 15), the plea in question states that it expires in July of 1999, and yet the plea was not signed until the end of August. The plea agreement in this case is void ab initio and due process dictates that it cannot be enforced. Cf. United States v. Fine, 975 F.2d 596, 604 (9th Cir. 1992) (noting that pleas impact the public interest and must not operate in a fictional realm that would not be tolerated in other criminal or civil proceedings) . See also, Young v. State, 182 N.W.2d 262 (Wis. 1971) (noting that incorrect facts in plea will render it void).
Page 11
13

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 11 of 24

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

lengths the State will go to ensure that Petitioner never receives a hearing at which time he can present concrete evidence of his innocence. Townsend continues to govern this Court's determinations regarding evidentiary hearings, and the State's argument to the contrary is foreclosed for three distinct reasons: (1) Ninth Circuit decisions hold that Townsend continues to govern postAEDPA; (2) the most recent version of the Habeas Rules, 2008, specifically reference Townsend as the governing law in this context; and (3) the majority of circuits to have addressed this question are in accord with the Ninth Circuit on this question.14 A. The State's Position is Inconsistent With Binding Ninth Circuit Precedent.

The State does not contend that Petitioner is not entitled to a hearing under the standard announced in Townsend v. Sain, nor could they credibly do so. Instead, the lodestar of the State's argument is that Townsend does not apply to habeas petitions filed after the enactment of the AEDPA. (USDC Doc. No. 58 at 5-7) (arguing that Petitioner's reliance on Townsend is "improper" and "dubious"). Unfortunately for the State, the Ninth Circuit has previously addressed and rejected this argument. See, e.g., Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2004); Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005). The State's policy preference for treating Townsend as defunct, (USDC Doc. No. 58 at 6), is unavailing in light of the Circuit law on this issue. In Townsend v. Sain, 372 U.S. 293 (1963), the Supreme Court explicated the standard for granting a federal hearing in a habeas corpus Petitioner notes that ordinarily it would not be necessary to rely on out of Circuit materials when the Ninth Circuit has addressed the question at issue; however, the State erroneously suggests that the Ninth Circuit decisions relied upon by Petitioner are no longer good law, so Petitioner wishes to highlight for the Court that the position he advances regarding the standard for evidentiary hearings is not only the law in the Ninth Circuit, but in several other circuits as well.
Page 12
14

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 12 of 24

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

proceeding. Of relevance to the instant case, Townsend identified the class of cases in which a federal hearing was mandatory. Townsend, 372 U.S. at 313 (stressing that the absence of a full and fair state court hearing would be dispositive when the petitioner alleges a colorable claim). There is no question that Townsend remained the governing standard up through the enactment of the AEDPA, the question is whether, as the State argues, the "the application of Townsend to AEDPA petitioners [is] dubious." (USDC Doc. No. 58 at 6). In Insyxiengmay, the Ninth Circuit addressed this precise question and held that "[a]ssuming that the petitioner has not failed to develop15 his claims and can [satisfy] Townsend, an evidentiary hearing on a habeas corpus petition is required." Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2004). In other words, as Petitioner argues in his Motion for Evidentiary Hearing, Townsend continues to govern Post-AEDPA petitions. Stated more succinctly, because Petitioner has alleged facts,16 which taken to be true, would entitle him to relief, he is entitled to an evidentiary hearing, AEDPA notwithstanding. Earp, 431 F.3d at 1170. The State's policy arguments and citation to out of Circuit authority simply cannot trump the binding Ninth Circuit holdings as to the standard for evidentiary hearings. See also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (Rehnquist, C.J.) ("where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry). Petitioner addresses the "failed to develop" prong of the analysis infra Section III. The facts and legal allegations made by Petitioner all relate to the dispositive question in this case: Was Petitioner's plea knowing and voluntary as required by the Fifth, Sixth and Fourteenth Amendments. See Supra Section I; see also (USDC Doc. No. 52 at 5-15).
Page 13
16 15

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 13 of 24

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

B.

The State's Position is Inconsistent With the Federal Habeas Rules and the Law of Other Circuits.

Even if the Ninth Circuit had not specifically addressed the question of whether Townsend continues to govern in cases arising after the enactment of the AEDPA, the federal habeas rules and the emerging consensus among circuits dictate that Petitioner is entitled to an evidentiary hearing. The Federal Rules applicable to habeas petitions are the Rules Governing Section 2254 Cases In The United States District Courts. These rules are expressly intended to "govern a petition for a writ of habeas corpus filed . . . under 28 U.S.C. § 2254." Rule 1, The Rules Governing Section 2254 Cases. The 2008 version of these rules reflect the amendments and modifications approved by Congress in 2004. Notably, the 2008 version of Rule 8, the rule addressing evidentiary hearings, contains a comment that specifically references Townsend as the standard for determining a petitioner's eligibility for a federal hearing. Id. Specifically, the committee Notes stresses that Townsend sets forth the standard "for determining when a hearing in the federal habeas proceeding is mandatory." Id. There is, in other words, no support in the federal habeas rules for the assertion that Townsend no longer governs. Similarly, nearly every circuit that has squarely addressed the issue of Townsend's continued application following the enactment of the AEDPA has agreed with the Ninth Circuit's analysis. See Green v. Johnson 515 F.3d 290, 306 (4th Cir. 2008) (recognizing that Townsend continues to govern the enactment of the AEDPA); Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006) ( holding that Townsend still governs); Matheney v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001); Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir. 2002); Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998); see also Teti v. Bender, 507 F.3d 50, 62 (1st Cir. 2007) (acknowledging that one circuit
Page 14

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 14 of 24

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

has taken a different view than the Ninth Circuit on this question, but noting that several other circuits agree with the Ninth's approach).17 Only the Third Circuit has agreed with the view advanced by the State. Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000) (suggesting that all evidentiary hearings are a matter of discretion). The minority view of a single circuit provides no basis for refusing to apply the test prescribed by the Ninth Circuit, and the State's argument to the contrary is therefore unavailing.18 Accordingly, the State's argument that Townsend does not apply to this case is without merit. Under Townsend, as applied in the AEDPA context by the Ninth Circuit, Farrall is entitled to a federal hearing if he alleges facts which, taken as true, would entitle him to relief. The State argues that there are good policy and interpretive justifications for concluding that the Ninth Circuit's approach is incorrect. (USDC Doc. No. 58 at 5-8). Notably, however, the Habeas Rules, other Circuits, and the academic commentary all suggest that the position adopted by the Ninth Circuit is correct. Commentators also agree with the Ninth Circuit's conclusion regarding the continued application of Townsend. See 1 Hertz & Liebman § 20.1b ("Even after AEDPA ... Townsend's mandatory-hearing standards ... continue[ ] to govern all situations save those in which the petitioner's procedural default accounts for the state courts' failure to develop the material facts."); W. LaFave et al., Criminal Procedure § 28.7(c) (2d ed.2004). The State cites the Supreme Court's recent decision in Landrigan v. Schriro, 127 S. Ct. 1933 (2007) as support for its novel theory that Townsend no longer applies. This argument is another desperate red-herring. Landrigan by its own terms addresses only those circumstances where a district court denies an evidentiary hearing as a matter of discretion ­ i.e., there is no right to a hearing under Townsend because the record alone renders the petitioner's allegations patently incredible. Landrigan, 127 S.Ct. at 1939 (addressing the "basic rule" that "the decision to grant an evidentiary hearing [is] generally left to the sound discretion of district courts"). Consistent with this view, Circuit courts that have adopted the Ninth Circuit's approach to determining whether an evidentiary hearing is required under the AEDPA continue to apply this same analysis following the Landrigan decision. See, e.g., Simpson v. Norris, 490 F.3d 1029, 1035 (8th Cir. 2007) (applying Townsend standard); Green v. Johnson, 515 F.3d 290, 306 (4th Cir. 2008) (recognizing that Townsend continues to govern after Landrigan and the enactment of the AEDPA if petitioner requests a hearing in state court).
Page 15
18 17

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 15 of 24

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

III.

Farrall Was Sufficiently Diligent To Warrant a Federal Hearing. The Ninth Circuit has recognized that a Petitioner is entitled to an

evidentiary hearing so long as he has satisfied the relatively "low bar" of alleging a colorable claim, and he is not at fault for the State Court's failure to develop the record below. Accordingly, this Court must assess whether Petitioner was sufficiently diligent in pursuing his claims in state court. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 437 (2000). In this case, the State's unwillingness to acknowledge the pro per petitioner's diligence is unfounded as a matter of law, and unsettling as a matter of equity. (USDC Doc. No. 58 at 6-8). It is beyond question that Congress narrowed the availability of evidentiary hearings for prisoners who were not reasonably diligent in pursuing a claim in state court when it enacted 2254(e)(2). But the Supreme Court has acknowledged that diligence for purposes of (e)(2) is not a particularly onerous standard. Williams, 529 U.S. at 437 (holding that (e)(2) codifies the TamayoReyes threshold for diligence). In fact, the Court ultimately defined the diligence required under (e)(2) as identical to the well known standards for exhaustion defined in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Williams, 529 U.S. at 433-34 ("there is no basis in the text of § 2254(e)(2) to believe Congress used `fail' in a different sense than the Court did in Keeney"). Accordingly, the State's assertion that this Court must regard the limitations announced in (e)(2) as creating a novel and oftentimes insurmountable barrier to federal hearings must be rejected. (USDC Doc. No. 58 at 7-8).19 The State incorrectly treats (e)(2) as a catch-all provision that provides support for their position that a hearing is unwarranted. Accordingly, the Response contains errant cites to (e)(2) that have no relation to the issues presented by Petitioner's motion for a hearing. See, e.g., USDC Doc. No. 58 at 4 (citing (e)(2) as support for a legal proposition that has no connection to (e)(2)'s diligence inquiry: "[A]n evidentiary hearing is not warranted because there is no factual basis to be developed and the material facts are not in
Page 16
19

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 16 of 24

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

Indeed, the Supreme Court's only opinion expressly interpreting (e)(2) recognized that in the "usual case" seeking an evidentiary hearing in state court is adequate to demonstrate diligence. Williams, 529 U.S. at 437. In this case, Petitioner made multiple requests for record development, including a formal request for an evidentiary hearing in order to prove the constitutional claims at issue. See, e.g., Superior Ct. Dkt. No. 86. The State argues that Petitioner's request for a hearing was insufficient for purposes of establishing diligence. (USDC Doc. No. 58 at 8). But, as with the State's arguments regarding Townsend, this position is belied by the law of the Ninth Circuit and other Circuits. For example, explicitly refusing to accept the sort of heightened standard urged by the State in this case, the Ninth Circuit has held, "It is clear that [petitioner]did not `fail[ ] to develop' the factual basis of either of his claims; rather, the state courts denied him the opportunity to develop the facts by failing to hold an evidentiary hearing." Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997). That is to say, "[w]here, as here, the state courts simply fail to conduct an evidentiary hearing, the AEDPA does not preclude a federal evidentiary hearing on otherwise exhausted habeas claims." Id.; see also Insyxiengmay, 403 F.3d at 671 (recognizing that the state court's denial of a hearing alone is a sufficient predicate for a finding of diligence). Other Circuits have expressly adopted the standard endorsed by the Ninth Circuit in evaluating requests for evidentiary hearings. See, e.g., Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.2001); Green v. Johnson 515 F.3d 290, 306 (4th Cir. 2008) (recognizing that if a petitioner requests and is denied a hearing in state court, (e)(2) does not apply ); see also (USDC Doc. No. 52 at 3-5) (citing, among other cases, Earp, 431 F.3d at1169, for the proposition that by merely dispute. 28 U.S.C. § 2254(e)(2)").
Page 17

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 17 of 24

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

proffering the factual basis of a claim the diligence requirement is satisfied). The State supports its assertion that Petitioner was not sufficiently diligent by noting that, with the assistance of federal counsel, Petitioner has now been able to develop evidence in support of his claims. (USDC Doc. No. 58 at 6-7). Specifically, the State argues that a pro per petitioner without the assistance of counsel should be held responsible for the absence of affidavits in the state record, and that the absence of such affidavits should constitute a failure of diligence for purposes of (e)(2) such that Petitioner is not entitled to an evidentiary hearing. Setting aside the fact that this assertion is in direct tension with the Circuit law discussed immediately above, there are two distinct reasons that this argument fails. First, the State argues for the first time in this Court that Petitioner was not entitled to a hearing in state court for failing to produce affidavits, but the State did not make this argument below, and more importantly, the State Courts did not deny Petitioner's request for a hearing on this basis. Because the State Court denied Petitioner's request for a hearing on the merits, it would be improper to conclude that this denial can be attributed to the Petitioner. See, e.g., Hughes v. Beard, 2007 WL 2791423, 5 (E.D.Pa. 2007) (finding petitioner diligent despite the arguments by the State that his "boilerplate" request for a hearing was procedurally inadequate, because the state court ultimately denied the petition on the merits). Where, as here, Respondents attempt to sandbag a pro per petitioner with newfangled procedural arguments not relied on by the state court in denying Petitioner a full and fair hearing, the limitations provided by (e)(2) do not apply.20 Second, the State relies on a procedural rule requiring that petitioner's This is particularly true where, as here, Petitioner did in fact submit limited affidavits ­ i.e., those available to him ­ to the highest state court. (USDC Doc. No. 57, Exh. M) (Affidavits attached to Petition for Review).
Page 18
20

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 18 of 24

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

attach affidavits to Rule 32 petitions in order to support its theory that Petitioner was not diligent for purposes of (e)(2); however, the rule relied on is not an independent and adequate procedural bar such that it could provide a basis for denying Petitioner an evidentiary hearing. Although the State fails to identify the precise procedural rule in question (USDC Doc. No. 58 at 7), Petitioner assumes that the State intends to refer to Ariz. R. Crim. P. 32.5, which states that "currently available" affidavits shall be attached to a petition for post-conviction relief. However, Petitioner notes that this rule has never been applied by the Arizona Supreme Court, much less applied and interpreted in the context of a pro per petitioner's request for relief. See Cooper v. Brown, 510 F.3d 870, 924 (9th Cir. 2007) (defining "independent and adequate" procedural bar rule). This Court cannot deem Petitioner's request for an evidentiary hearing procedurally precluded on the basis of a state rule so obviously lacking the pedigree of an independent and adequate state procedural rule. See Id. (holding that a procedural rule is not an "adequate" bar to federal proceedings unless it is "firmly established and regularly followed"). Because the State has failed to identify a rule, much less the Supreme Court's regular application of the rule, much less the regular application of the rule to a pro per petitioner, such a rule does not provide a basis for denying Petitioner a federal hearing. Id. The State's implicit reliance on Rule 32.5 as vehicle for precluding evidentiary development is also flawed because, even if the rule were independently and adequately applied by the state courts, the plain text of the rule dictates an application much different than that urged by the State in this case. Specifically, the State argues that Petitioner's inability to attach affidavits to his initial post-conviction petition dictates that he was not diligent under Arizona's state procedural rules. (USDC Doc. No. 58 at 7). In fact, the
Page 19

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 19 of 24

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

plain text of Rule 32.5 belies this conclusion.21 The State is correct that Rule 32.5 provides that affidavits or other evidence "shall be attached" to the post-conviction pleadings; however, the rule also specifies the remedy for a failure to comply with the rule. The rule states that "A petition which fails to comply with this rule shall be returned by the court to the defendant for revision with an order specifying how the petition fails to comply." Ariz. R. Crim. P. 32.5. In other words, when the state court deems a petitioner to have failed to adequately comply with the affidavit or evidence requirement of the Rule, the court is required to notify the petitioner and offer him an opportunity to remedy the violation. Id. Accordingly, the court's failure to return the petition to the defendant, much less mention a violation of Rule 32.5, is dispositive as to this issue. There is no basis under the plain text of the Rule relied on by the State for treating Petitioner as having been insufficiently diligent in pursuing his pro per postconviction remedies. In sum, the Ninth Circuit has specifically considered the question of what level of "diligence" is necessary in order to warrant a federal hearing, and it held that seeking an evidentiary hearing in state court, particularly when the State opposes the hearing, is sufficient for purposes of establishing the requisite level of diligence so as to avoid the application of (e)(2). See Insyxiengmay, 403 F.3d at 671. Other Circuits addressing this question more recently are in agreement. See, e.g., Green v. Johnson 515 F.3d 290, 306 (4th Cir. 2008). Moreover, Petitioner was pro per, the State Court denied the hearing on the merits, and the State has not identified an independent and Proceeding pro per, Petitioner was eventually able to gather a few affidavits, which he attached to his subsequent Petition for Review. These documents were before the Arizona Supreme Court, and nothing in the record suggests that the court did not review this evidence when it denied Petitioner's claims on the merits.
Page 20
21

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 20 of 24

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

adequate bar that would preclude a finding of diligence in this case. Accordingly, the constraints announced in (e)(2) do not apply to this case and Petitioner's request for an evidentiary hearing must be adjudicated under the Townsend standard. IV. The State Urges an Incorrect Application of the Exhaustion Doctrine. The State concludes its analysis with a discussion of the rules of exhaustion that is patently incorrect as a matter of law. (USDC Doc. No. 58 at 9-12). Hoping to undermine Petitioner's right to a hearing, the State argues that even if Petitioner has otherwise satisfied the requirements for a federal hearing, such a hearing should be denied because subject to "very limited exceptions, [habeas cases] are to be decided on the record presented to the state courts." (USDC Doc. No. 58 at 9). Such an assertion belies an understanding of habeas procedure insofar as the rules governing evidentiary hearings have been carved out in a manner that is specifically designed to adhere to the comity concerns raised by the State. That is to say, generic concerns about federalism and comity work in tandem with the rules governing evidentiary hearings, and are not in tension with them so as to provide an additional limitation on the right to a hearing; if a petitioner satisfies Townsend he is entitled to an evidentiary hearing.22 For the sake of clarity, however, Petitioner will briefly elaborate on the In considering the impact of general concerns about federalism on Petitioner's constitutional claims, it is important to note that at every stage of litigation the State has strenuously opposed the development of evidence in support of Petitioner's constitutional claims. In light of the State's obstinate refusal to allow a pro per petitioner an opportunity to develop the facts underlying his claim in state court, the Court should not overlook the irony in the State's strident assertion that allowing Petitioner to develop evidence of his innocence in federal court "would run afoul of the comity and exhaustion doctrines." (USDC Doc. No. 58 at 10). The cloak of comity is a bit too convenient in this case considering that it was the State who prevented this evidence from being developed below. See, e.g., (Superior Court Docket No. 85; Court of Appeals Div. One Doc. No. 5 and 16).
Page 21
22

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 21 of 24

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

exhaustion requirements as they apply in this case. First, Petitioner will correct the State's misapprehension that exhaustion applies to evidence as opposed to claims. Second, Petitioner will briefly highlight the lower exhaustion standards that apply to a pro per petitioner. The State argues that the very fact that Petitioner, through federal habeas counsel, has discovered new evidence in support of his claims dictates that Petitioner's "newly discovered evidence" is unexhausted and "must be presented to the state courts." (USDC Doc. No. 58 at 10). As the Ninth Circuit reiterated just last month, exhaustion applies to claims not to individual pieces of evidence. Pinholster v. Ayers, 525 F.3d 742, 765 (9th Cir. 2008). In Pinholster, Judge Tallman emphasized that for purposes of exhaustion the only question is whether the underlying claim has been "fairly presented" to the state courts. Id. Accordingly, the panel rejected as "unwarranted hairsplitting" the State's argument that a claim was unexhausted merely because the "factual predicate for the claim changed" based on new evidence introduced during federal habeas proceedings. Id. At every stage of his post-conviction litigation, Petitioner has argued that his plea was involuntary. (Superior Ct. Doc. No. 81; Superior Ct. Doc. No. 86; Arizona Supreme Ct. Doc. Nos. 1, 13). The fact that appointed counsel has been able to obtain substantial evidence of Petitioner's innocence, which is unquestionably relevant to the prejudice inquiry of his involuntariness claim, Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004), does not "fundamentally alter" this claim so as to render it unexhausted. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999). The State's argument that Petitioner's claims are unexhausted also ignores the liberal pleading standards that apply to pro per petitioners. In Davis v. Silva, 511 F.3d 1005 (9th Cir. 2008), the Ninth Circuit admonished lower courts to be mindful of the general rules dictating leniency in the review of a pro per habeas petition when assessing questions of exhaustion. Davis,
Page 22

Case 2:04-cv-00260-EHC-BPV

Document 59

Filed 06/19/2008

Page 22 of 24

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

511 F.3d at 1009 (stressing that "pro se [habeas] petitions are held to a more lenient standard" for purposes of exhaustion). The Court's express recognition that pro per petitioners must be afforded leniency with regards to questions of exhaustion fundamentally undermines the State's assertion that the pro per claims at issue in this case are unexhausted. (USDC Doc. No. 58 at 10-12). In short, the State's argument that "fair presentation" requires identical legal arguments, factual narratives, and supporting evidence be provided to both the state and federal courts has been rejected by the Ninth Circuit. The Ninth Circuit's liberal exhaustion standard expressly anticipates the use of "new" evidence by federal courts, and the evidence and allegations proffered by Petitioner in this case entitle him to an evidentiary hearing. See, Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (interpreting § 2254(d)(2) and (e)(1) as interacting so as to provide a framework for adjudicating `new' evidence never presented to the state courts). Conclusion Based on the arguments presented in Petitioner's Motion For Evidentiary Hearing and this Reply, Petitioner respectfully requests that this Court grant an evidentiary hearing. The Court has before it non-conclusory allegations which, taken as true, would entitle Petitioner to relief. Accordingly, under the standard set forth in, among other cases, Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005), an evidentiary hearing is required in this case. Respectfully submitted this 19th day of June, 2008. Jon M. Sands Federal Public Defender Michael L. Burke Justin F. Marceau s/ Justin F. Marceau Counsel for Petitioner

Page 23 Case 2:04-cv-00260-EHC-BPV Document 59 Filed 06/19/2008 Page 23 of 24

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

Certificate of Service I hereby certify that on June 19, 2008, I electronically transmitted the attached document to the Clerk's Office Using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Katia Mehu Assistant Attorney General Attorney General's Office s/ Mary Creed Mary Creed Capital Habeas Unit

Page 24 Case 2:04-cv-00260-EHC-BPV Document 59 Filed 06/19/2008 Page 24 of 24