Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) KATIA MEHU ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 016992) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RICHARD FARRALL, JR.,
Petitioner,

CV 04­0260­PHX­EHC

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

RESPONSE TO MOTION FOR EVIDENTIARY HEARING

Pursuant to Local Rule of Civil Procedure 7.2(m), and Rule 12(f) of the

17 Federal Rules of Civil Procedure, Respondents hereby respond to Petitioner's 18 motion for evidentiary hearing on the issue of whether the pleas of no contest were 19 knowing and voluntary (Doc. 52). Respondents respectfully request the Court 20 deny the motion for evidentiary hearing. The request for evidentiary hearing is 21 premature because the matter has not yet proceeded to the stage where the Court 22 would determine whether an evidentiary hearing is warranted under Rule 8 of the 23 Section 2254 Rules. Additionally, any assertion of newly discovered evidence 24 must be resolved in state courts. This response is supported by the attached 25 Memorandum of Points and Authorities. 26 27 28
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1 DATED this 12th day of June, 2008. 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
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RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/KATIA MEHU ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL AND PROCEDURAL BACKGROUND. Petitioner is challenging his 1999 convictions in Maricopa County cause

5 number CR1998­13810. In February 2004, Petitioner filed a habeas petition and 6 raised four grounds for relief. (Doc. 1.) On June 3, 2004, the State filed a response 7 limited to the affirmative defense of time bar. (Id. at 12.) The magistrate 8 recommended that the District Court enter an order dismissing the petition as 9 untimely. (Id. at 15, 18.) The District Court conducted a de novo review of the 10 record, and adopted the report and recommendation in full on December 29, 2004. 11 (Id. at 20.) The Ninth Circuit granted Petitioner a certificate of appealibility, and 12 ultimately held that Petitioner's habeas petition was timely filed in accordance with 13 the holding of Summers v. Schriro, 481 F.3d 710 (9th Cir. 2007). (Id. at 35.) The 14 Ninth Circuit ordered the matter reversed and remanded for further proceedings. 15 (Id.) At Petitioner's request, the Court appointed Petitioner counsel under the 16 Criminal Justice Act. (Id. at 43.) Appointed counsel, the Federal Public Defender, 17 initially requested a stay of the proceedings to familiarize themselves with the 18 record, and later requested that the matter be set for an evidentiary hearing on the 19 issue of whether Petitioner's plea of no contest was knowing and voluntary. (Id. 20 at 46, 52.) 21 II. 22 ARGUMENT. The request for evidentiary hearing is premature because the matter has not

23 yet proceeded to the stage where the Court would determine whether an 24 evidentiary hearing is warranted under Rule 8 of the Rules Governing § 2254 25 Cases. Rule 8 expressly provides that if the petition is not dismissed, the judge 26 must review the answer, any transcripts and records of state court proceedings, and 27 any materials submitted under Rule 7 to determine whether an evidentiary is 28 warranted. Respondents originally filed an answer limited to affirmative defenses
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1 and, simultaneously with this response, file a supplemental brief addressing the 2 merits of the grounds for relief raised in the habeas petition.1 In light of the 3 procedural posture of this case, the next step is consideration of the merits of the 4 claims raised in the habeas petition. 5 Nonetheless, an evidentiary hearing is not warranted because there is no

6 factual basis to be developed and the material facts are not in dispute. 28 U.S.C. 7 §2254(e)(2). Petitioner alleged that he felt coerced by appointed counsel's actions 8 during an off the record consultation at the settlement conference where he signed 9 the plea offers. (Doc. 1.) The existing state record already reflects that Petitioner 10 had made this allegation from the moment he moved to withdraw from his plea. 11 (Exhibits E­I, K, M, O, filed with Respondents' Answer to the Petition for 12 Review.) The record presently reflects Petitioner's expressed feelings of coercion, 13 and he procured an affidavit from another person present during appointed 14 counsel's strongly worded dispensation of advice. (Exhibit M, Affidavits to

15 Petition for Review, filed with Respondents' Supplemental Answer to the Petition 16 for Review.) 17 But, and as more fully presented in Respondents' Supplemental Answer, and

18 incorporated herein by reference, trial counsel did not coerce Petitioner into 19 pleading no contest. The facts were that the State had amassed overwhelming 20 evidence of Petitioner's guilt consisting of the videotaped statements of 21 Petitioner's daughter and step-daughter, an incriminating confrontation call 22 wherein Petitioner admitted to committing some of the acts charged, and a separate 23 statement to the police wherein Petitioner admitted to stimulating sex acts with his 24 daughter and to providing pornographic material to his daughter. (Exhibit D, 25 ________________________ 26 Although Petitioner does not identify it as such, it appears that he supplemented his habeas petition with the argument included in the motion for evidentiary 27 hearing. (Doc. 52 pp 13­15.) 28
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1 at 3­5, filed with Respondents' Answer to the Petition for Review.) In addition, 2 the State exceedingly strong case was bolstered by Petitioner's incriminating letters 3 turned over to the prosecution by various family members. (Id.) If Petitioner was 4 found guilty of the charges, any verdict would require consecutive sentencing 5 resulting in sentences in excess of 200 years. (Id. at 4.) The State's plea offers 6 permitted Petitioner to enter no contest pleas to two of the counts, capped the 7 maximum sentences at 27 years, and made one of the offenses probation eligible. 8 (Exhibits B and C, filed with Respondents' Answer to the Petition for Review.) 9 The advice trial counsel gave Petitioner--to accept the plea offers--was

10 "within the range of competence demanded of attorneys in criminal cases." 11 McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441 (1970); accord, 12 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984). In accepting 13 the plea offers, Petitioner made a reasoned choice among the available alternatives. 14 North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160 (1970). 15 It is important to address Petitioner's allegation that the failure of state

16 courts to conduct an evidentiary hearing constitutes an unreasonable determination 17 of facts. Doc. 52 p. 5, n. 4. Lambert v. Blodgett, 393 F.3d 943, 970 (9th Cir. 2004), 18 dispels the notion that an evidentiary hearing is required to accord deference. 19 "Although an evidentiary hearing might be evidence of an adjudication on the 20 merits, it is a sufficient, rather than a necessary, condition to AEDPA deference." 21 (citing Sophanthavong v. Palmateer, 378 F.3d 859, 865­66 (9th Cir. 2004)). 22 Additionally, Petitioner improperly relies on Townsend v. Sain, 372 U.S.

23 293, 83 S. Ct. 745 (1963), as the benchmark for the granting of evidentiary 24 hearings on habeas petitions because Congress supplanted the Townsend standard 25 with 28 U.S.C. § 2254(e)(2). The continued viability of Townsend appears

26 contrary to Congress' intent, in enacting the AEDPA, "to reduce delays in the 27 execution of state and federal criminal sentences, particularly in capital cases, and 28 to further the principles of comity, finality, and federalism." Woodford v. Garceau,
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1 538 U.S. 202, 206, 123 S. Ct. 1398 (2003) (citations omitted). See, e.g., Schriro v. 2 Landrigan, ___ U.S. ___, 127 S. Ct. 1933, 1939­40 (2007) (in deciding whether to 3 hold an evidentiary hearing, the district court must consider whether the petitioner 4 can satisfy the stringent standards now imposed by the AEDPA); see also Kelley v. 5 Secretary for Department of Corrections, 377 F.3d 1317, 1333­34 (11th Cir. 2004); 6 Cardwell v. Greene, 152 F.3d 331, 336-37 (4th Cir. 1998); Weeks v. Bowersox, 7 119 F.3d 1342, 1352 n.12 (8th Cir. 1997). The Ninth Circuit has held that, if the 8 petitioner was diligent in attempting to develop the claim's factual basis in state 9 court, the court must then determine whether a hearing is appropriate or required 10 under the criteria set forth in Townsend. Earp v. Stokes, 423 F.3d 1024, 1031­1032 11 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669­70 (9th Cir. 2005). 12 Notwithstanding this Circuit's precedent, the application of Townsend to AEDPA 13 petitioners appears dubious, given that: (1) Townsend was not grounded on 14 constitutional law, but rather on the 1963 Supreme Court's perception of Congress' 15 intent in passing the habeas statute in effect at that time, see Townsend, 372 U.S. at 16 311; (2) three years after Townsend was decided, Congress amended 28 U.S.C. 17 § 2254(d) to incorporate the Townsend factors, but subsequently removed them in 18 enacting the AEDPA; and (3) the Supreme Court has never held that the Townsend 19 factors are applicable to a post-AEDPA petitioner. Additionally, contrary to

20 Townsend, nothing in the AEDPA suggests that a habeas court must conduct an 21 evidentiary hearing in certain circumstances. See, e.g., Downs v. Hoyt, 232 F.3d 22 1031, 1041 (9th Cir. 2000) ("Moreover, even assuming Downs's claim could clear 23 the hurdle posed by § 2254(e)(2), the fact that a hearing would be permitted does 24 not mean that it is required. The district court retains discretion whether to hold 25 one."). 26 Furthermore, Petitioner has not satisfied the standard for an evidentiary

27 hearing because the state courts determined that he failed to present a colorable 28 claim in his Rule 32 petition. See Williams v. Taylor, 529 U.S. 420, 437, 120 S. Ct.
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1 1479 (2000) ("Diligence will require in the usual case that the prisoner, at a 2 minimum, seek an evidentiary hearing in state court in the manner prescribed by 3 state law.") (emphasis added); Smith v. Bowersox, 311 F.3d 915, 921­22 (8th Cir. 4 2003) (no habeas evidentiary hearing required where petitioner failed to present a 5 colorable claim in state court, as required by Missouri procedural rules); Baja v. 6 Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999) (same result where petitioner 7 failed to establish factual basis of claim in state court, as required).2 The state 8 record clearly demonstrates that Petitioner knew his obligation to present affidavits 9 to his Rule 32 petition, but did not do so in the manner prescribed by law. Any 10 inadequacy in the state court record was largely attributable to the prisoner. Koste 11 v. Dormire, 345 F.3d 974, 985­86 (8th Cir. 2003). Significantly, all of the

12 witnesses presented in the motion for evidentiary hearing were known to Petitioner 13 at the time he filed his Rule 32. Presenting them for the first time on habeas 14 review constitutes a lack of diligence that disqualifies him from an evidentiary 15 hearing. See Dowhitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (holding that 16 mere request for evidentiary hearings is state courts is not enough; the prisoner 17 must be diligent in pursuing the factual development of his claim). 18 Even without the benefit of an evidentiary hearing, Petitioner's challenge to

19 his guilty is subject to dismissal because it contradicts his change of plea avowals. 20 As the United States Supreme Court noted, "The representations of the defendant, 21 ________________________ 22 23 24 25 26 27 28 This Court must defer to the Arizona courts' application of their post-conviction relief rules to Petitioner's case. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). As the United States Supreme Court conclusively observed, "It is not the province of a federal habeas court to re-examine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 67­68, 112 S. Ct. 475 (1991); see also Langford v. Day, 110 F.3d 1380, 1388­89 (9th Cir. 1996) ("We accept a state court's interpretation of state law, . . . and alleged errors in the application of state law are not cognizable in federal habeas corpus."); Paradis v. Arave, 954 F.2d 1483, 1493 (9th Cir. 1992) ("We cannot consider the merits of this contention because federal courts lack the jurisdiction in state prisoner habeas corpus proceedings to determine whether state law was properly applied.").
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1 his lawyer, and the prosecutor at [the change-of-plea] hearing, as well as any 2 findings made by the judge accepting the plea, constitute a formidable barrier in 3 any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73­74, 4 97 S.Ct. 1621 (1976). The Supreme Court further noted that a defendant's "solemn 5 declarations in open court carry a strong presumption of verity." Id. at 74.

6 Applying this principle, numerous federal appellate courts have upheld guilty pleas 7 against myriad challenges that are predicated upon a defendant's post-sentencing 8 disavowal of the statements he had made in open court regarding the voluntariness 9 of his plea. See Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995) 10 ("First, during the plea colloquy, [defendant] specifically denied that any threats 11 and coercions had been used against him. Courts generally consider such responses 12 to be strong indicators of the voluntariness of the defendant's plea."); Agtas v. 13 Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988) (rejecting defendant's post-conviction 14 claim he was impaired, based upon avowal in court that he had not taken any drugs 15 before hearing); United States v. Diaz, 176 F.3d 52, 114 (2nd Cir. 1999); United 16 States v. Gray, 152 F.3d 816, 819­20 (8th Cir. 1998); United States v. 17 Gwaizdzinski, 141 F.3d 784, 788 (7th Cir. 1998); Nguyen v. United States, 114 F.3d 18 699, 704 (8th Cir. 1997) (rejecting defendant's contention that his plea was 19 involuntary because of coercion by his attorney); United States v. Gonzalez, 20 970 F.2d 1095, 1100­01 (2nd Cir. 1992); Tran v. Lockhart, 849 F.2d 1064, 1068-69 21 (8th Cir. 1988); Rogers v. Maggio, 714 F.2d 35, 38 n.5 (5th Cir. 1983); Moya v. 22 Estelle, 696 F.2d 329, 332 (5th Cir. 1983) (rejecting the argument that defense 23 counsel induced defendant to plead guilty against his will). 24 Additionally, the need for an evidentiary hearing is negated by the fact that

25 Petitioner argued his involuntary plea claim to state courts on September 24, 1999: 26 Petitioner informed the state court that he did not understand the plea, felt coerced 27 into taking the plea offers, was in obvious distress at the time he pled no contest, 28 that alterations were made to the plea agreements after he signed them, that
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1 appointed counsel addressed him in anger on two separate occasions: during a 2 telephone call and a during a break in the settlement conference, and that he had 3 never actually read the plea offers. (Exhibit E, at 2­5.) Petitioner also discussed 4 the fact that other plea offers had been made and he had previously indicated that 5 he would not take a plea. (Id. at 3­4.) The prosecutor surmised that Petitioner's 6 change of heart was probably a result of learning that, shortly after the plea 7 agreement was executed, one of the victims was on runaway status. (Id. at 6­7.) 8 However, Petitioner was not aware that the runaway had contacted the prosecuting 9 agency a few days before the September hearing and reaffirmed her intent to 10 testify. (Id.) At the trial court's direction, the prosecutor memorialized for the 11 record the changes made to the plea offers after signatures were affixed thereto. 12 (Id. at 9­11.) This proceeding negates Petitioner's request for an evidentiary

13 hearing because he has already presented state courts with the factual basis of his 14 involuntary-plea claim. 15 Petitioner principally contends that multiple witnesses are able to provide

16 compelling and credible support of his claim of innocence. The witnesses consist 17 of third parties, "with direct knowledge of information suggesting that the victims 18 in this case fabricated the allegations that serve as the factual bases for the charges 19 against Petitioner." (Doc. 52 at 5.) At the outset, third-party avowals do not 20 constitute compelling evidence of Petitioner's "actual innocence." 21 In any event, this Court is well aware that federal habeas claims are, with

22 very limited exceptions, to be decided on the record presented to the state courts. 23 See Holland v. Jackson, 542 U.S. 649, 652­53, 124 S. Ct. 2736 (2004) (per 24 curiam), Bradshaw v. Richey, 546 U.S. 74, 79, 126 S. Ct. 602 (2005); Miller-El v. 25 Cockrell, 537 U.S. 322, 348, 123 S. Ct. 1029 (2003). Williams, 529 U.S. at 437, 26 states that, "Federal courts sitting in habeas are not an alternative forum for trying 27 facts and issues which a prisoner made insufficient effort to pursue in state 28 proceedings." This is particularly true in habeas cases under the AEDPA, such as
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1 this one, in which additional evidentiary development is limited by 28 U.S.C. 2 § 2254(e)(2). Petitioner cannot present the federal courts with affidavits not

3 presented in state courts. This would run afoul of the comity and exhaustion 4 doctrines. And, Petitioner's presentation of affidavits for the first time to the 5 appellate court was faulty because their merits could not be considered. The law is 6 well-settled in Arizona that appellate courts cannot consider facts that were not 7 presented to the trial court. See State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 8 315, 324 (1997); State v. Fassler, 108 Ariz. 586, 596, 503 P.2d 807, 817 (1972). 9 The affidavits do not satisfy the "fair presentation" requirement for exhaustion of 10 state court remedies. See Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056 11 (1989) (exhaustion requirement not satisfied where the claim has been presented 12 for the first and only time in a procedural context in which its merits will not be 13 considered); Casey v. Moore, 386 F.3d 896, 915­19 (9th Cir. 2004). 14 Next, Petitioner's involuntary-plea claim is not in actuality a claim of actual

15 innocence. In fact, Petitioner's plea "serves as an admission that he is not innocent 16 of the crimes charged." Luster v. United States, 168 F.3d 913, 916 (6th Cir. 1999). 17 Stated differently, "a plea of guilty and the ensuing conviction comprehend all of 18 the factual and legal elements necessary to sustain a binding, final judgment of 19 guilt and a lawful sentence." United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 20 757 (1989). 21 In any event, this basis for hearing is in actuality a claim of newly

22 discovered evidence that must be presented to state courts in a successive petition 23 for post-conviction relief. See Ariz. R. Crim. P. Rule 32.1(e). Newly-discovered 24 evidence does not, in itself, entitle a petitioner to federal habeas relief. Federal 25 habeas may not be used to correct errors of fact. Herrera v. Collins, 506 U.S. 390, 26 400, 113 S. Ct. 853 (1993). Further, a free-standing claim of actual innocence is 27 not cognizable in a federal habeas proceeding. See House v. Bell, 547 U.S. 518, 28 554­55, 126 S. Ct. 2064 (2006) (stating that the threshold for any free-standing
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1 actual innocence claim would be "extraordinarily high" and holding: "We conclude 2 here ... that whatever burden a hypothetical free-standing innocence claim would 3 require, this petitioner has not satisfied it."); Herrera, 506 U.S. at 404 (assuming 4 without deciding that if a free-standing claim of innocence is cognizable for habeas 5 relief, it would be a claim of "actual innocence" of the crime with an extremely 6 high standard of proof); Carriger v. Stewart, 132 F.3d 463, 476­77 (9th Cir. 1997) 7 (holding that, if recognized, a free-standing innocence claim would require proof 8 that the defendant is innocent of the crime); Coley v. Gonzalez, 55 F.3d 1385, 1387 9 (9th Cir. 1995) (substantive actual innocence claims are not available in non10 capital cases). 11 III. 12 CONCLUSION. Based on the foregoing authorities and arguments, Respondents respectfully

13 request that the motion for evidentiary hearing be denied. An evidentiary hearing 14 is not warranted because the factual issue (voluntariness) can be resolved by 15 reference to the record as a whole. Landrigan, 127 S. Ct. at 1940. Respondents 16 request that the habeas petition be permitted to pursue its normal course. 17 18 19 20 21 22 23 24 25 26 27 28
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RESPECTFULLY SUBMITTED this 12th day of June 2008.
TERRY GODDARD ATTORNEY GENERAL

s/KATIA MEHU ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION ATTORNEYS FOR RESPONDENTS

1 I hereby certify that on 12th day of June, 2008, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and 2 transmittal of a Notice of Electronic Filing to the following ECF registrant: 3 Jon M. Sands Federal Public Defender 4 Michael L. Burke Justin F. Marceau 5 Assistant Federal Public Defenders 850 West Adams Street, Suite 201 6 Phoenix, Arizona 85007 7 Attorneys for Petitioner 8 9 s/L. Lopez 10 CRM01­1224 213918 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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