Free Response to Motion - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. IVAN K. MATHEW, ESQ. (SBN: 011610) SUSAN T. MATHEW, ESQ. (SBN: 012916) 1850 N. Central Ave., Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 Fax: (602) 254-2204 E-mail: [email protected] Attorneys for Petitioner, JAMES ERIN McKINNEY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JAMES ERIN McKINNEY, Petitioner, DEATH PENALTY CASE v. DORA SCHRIRO, et al., Respondents. (Assigned to the Hon. David G. Campbell) Petitioner respectfully requests that the Motion to Strike be denied or in the alternative, Petitioner be allowed to expand the record. Pursuant to Rule 7 of the Rules Governing Federal Rules Governing Section 2254 Cases, the memorandum of points and authorities below, the documents and pleadings on file in this matter, Petitioner moves this Court for permission to expand the record to include the attached material relevant to the constitutional claims and evidentiary issues pending before this Court. MEMORANDUM OF POINTS AND AUTHORITIES Rule 7 of the Rules Governing § 2254 Cases provides this Court broad discretion to expand the record in these habeas proceedings to include any additional materials relevant to the determination of the merits of the petition. Additional materials include "[a]ffidavits" that may be submitted and considered as a part of the record. Rule 7(b), Rules Governing § 2254 Cases. See Vasquez v. Hillery, 474 U.S. 254, 258 (1986) ("Rule 7(b) permits a
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NO. CV 03-774-PHX- DGC

RESPONSE TO MOTION TO STRIKE AND CROSS-MOTION TO EXPAND THE RECORD

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federal district court in a habeas proceeding to expand the existing record .... In this case, the District Court sought to clarify the relevant facts, an endeavor wholly consistent with Rule 7 and the purpose of the writ."). As the Supreme Court explained in Lonchar v. Thomas, 517 U.S. 314, 326 (1996): The [Habeas Corpus] Rules afford the district court substantial discretion in the conduct of a case once an answer has been ordered. See also Shah v. U.S., 878 F.2d 1156, 1162 (9th Cir. 1989) ("The language of Rule 7 authorizes the court to order expansion of the record through a variety of documents, including affidavits.") Expansion of the record is permitted for a variety of reasons, including to avoid the necessity for an evidentiary hearing on some claims, or to assist the court to narrow the issues when an evidentiary hearing is ordered. Advisory Committee Note, Rule 7, Rules Governing § 2254 Cases. Here, Petitioner seeks to expand the record to show that an evidentiary hearing is needed. The Court obviously wanted Petitioner to connect the dots as the Court allowed the Petitioner to file for reconsideration. This document is relevant to Petitioner's claims that his counsel rendered ineffective assistance at his capital trial and sentencing. It is also relevant to Petitioner's request for mitigation at sentencing, the dual jury and dual defendant issues. Mr. Allen's declaration also supports Petitioner's pending constitutional claim that the error occurred in both the aggravating and mitigating phases of his capital proceedings that were relied on by the state courts to sentence Mr. McKinney to death rendered his death sentence cruel and unusual punishment under the Eighth Amendment. The information vital at sentencing would be that McKinney did not kill twice so as to warrant the sentence of death. This document provides additional support for granting relief, or at the least an evidentiary hearing, on Petitioner's pending constitutional claim that the cumulative effect of the multiple errors that occurred in this case requires relief.

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Although this Court earlier denied Petitioner's motion for evidentiary hearing, it did so "without prejudice." Order (Ariz.D.Ct. January 5, 2006.) The merits of the

constitutional violations that occurred at Petitioner's capital trial and penalty proceedings are pending before this Court. The declaration by trial counsel, Scott Allen is very

illuminating when considered with that of Mr. Cal Lash as to no one on the defense side knowing what happened. His declaration assists this Court in determining the merits of these claims, whether an evidentiary hearing is needed and if so, aids the parties as well as this Court, in narrowing the scope of the evidence to be presented on these claims at a hearing. For these reasons, Petitioner moves the Court to exercise its substantial discretion to expand the record to include the attached document relevant to this Court's determination of the issues pending before this Court. Rule 7, Rules Governing § 2254 Cases. The case of Marshal v. Cathel, 428 F.3d 452 (3rd Cir. 2005), which was recently decided, is directly on point. The Court held that there was a denial of the Constitutional right to effect the assistance of counsel due to the failure of defense counsel to interview witnesses and make a adequate investigation. 5th, 6th, and 14th Amendments, U.S.

Constitution. In the case at bar before this Court, the story is significantly worse as counsel failed to interview his own client. As noted in Cathel, the failure to have effective counsel is especially egregious when the information "is there for the asking." Id. at 465. Very often claims of inadequate investigation and failure to present mitigating evidence involve the existence of actual facts that may have altered the jury's verdict and the sentence of death. Id. citing Rompilla v. Beard, ____ U.S. ____ 125 S.Ct. 2456, 2467 (2005).

Complete lack of investigation is incomprehensible. Id. A lack of investigation cannot be termed a strategic decision. Id., Chandler v. U.S., 218 F.3d 1305, 1319 (11th Cir. 2000). The failure to perform an investigation of eyewitnesses is ineffective assistance of counsel. Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004).

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The failure to investigate is ineffective assistance of counsel.

See Anderson v.

Johnson, 338 F.3d 382 (5th Cir. 2003) (failure to interview eyewitnesses is ineffective assistance of counsel.); Mitchell v. Ayers, 309 F.Supp.2d 1146 (N.D. California 2004) (failure to interview eyewitnesses to corroborate story is ineffective assistance of counsel; no deference to counsel as a strategic decision.); Bishawi v. United States of America, 292 F.Supp2d 1122 (S.D. Illinois 2003) (prejudice can be presumed.) Thomas v. Kuhlman, 255 F.Supp.2d 99 (E.D. New York 2003) (failure to investigate murder scene is ineffective assistance of counsel); Harris v. Artuz, 288 F.Supp.2d 247 (E.D. New York 2003) (failure to impeach witness constitutes ineffective assistance of counsel). McKinney Requested an Evidentiary Hearing and it Was Denied On or about 11/17/99, Mr. McKinney requested an evidentiary hearing pertaining to ineffective assistance of counsel. (T.C.R. 11/17/99, pp. 4, 5, 6, 7.) "James Erin McKinney asked this Court for just one thing: an evidentiary hearing where he and his counsel can do for him what should have been done six years ago." This was denied by the Court on May 31, 2001. (See Order dated May 31, 2001, pp. 10-14). In short, Petitioner requested an opportunity to request a hearing at the State Court level. This was denied. (T.C.R. 6/11/01.) Therefore, this cannot be held against the Petitioner. See Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998.) In addition, the Declaration of Scott Allen supplements what is currently pending before the Court. It does not fundamentally alter the claim that Scott Allen should have asked his client "what happened." In Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002) the district court considered those documents, but denied a hearing on the ground that the petitioner had not been prejudiced by the omission of this evidence. The circuit court disagreed, concluding that trial counsel's "penalty phase assistance may have been constitutionally ineffective," and after discussing the declarations "remand[ed] for an evidentiary hearing on whether [trial counsel's] failure to investigate mitigating evidence constituted constitutionally ineffective assistance of counsel at the penalty phase." Id., at 895.
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In Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998), the petitioner, like Mr. McKinney here, was denied a hearing in state court on his claim that counsel was ineffective at his capital sentencing proceedings. There, like here, Respondents contended that Correll had not presented a colorable claim of ineffective counsel and failed to develop the facts in state court. The circuit court disagreed: Correll properly alleged his counsel's ineffectiveness at sentencing in his Rule 32 state petition for post-conviction relief and requested an evidentiary hearing. This request was denied by the state court. When a state court denies an evidentiary hearing on a colorable ineffective assistance of counsel claim after proper request, a habeas petitioner has fulfilled the Tamayo-Reyes "cause" requirement. Simply put, the state cannot successfully oppose a petitioner's request for a state court evidentiary hearing, then argue in federal habeas proceedings that the petitioner should be faulted for not succeeding. Id., p. 1413. Here, too, Petitioner requested, but was denied a hearing on these

constitutional claims. See also, Caswell v. Calderon, 363 F.3d 832, 838-839 (9th Cir. 2004). The circuit court in Correll did conclude Correll failed to develop his counsel's ineffectiveness for not adequately presenting a misidentification defense. But that was because Correll did not present that theory of ineffectiveness in either his postconviction petition or supplements to that petition. Id., pp. 1411-1412. These claims were exhausted in the state courts. No state court hearing was held here. Because Petitioner here requested an

evidentiary hearing in state court, but was denied that hearing, he did not fail to develop the evidence he now seeks to present. See Williams (Michael) v. Taylor, 529 U.S. 420, 437 (2000)( diligence requires a petitioner seek an evidentiary hearing in state court); Cargle v. Mullin, 317 F.3d 1196, 1209 (10th Cir. 2003)(petitioner sought discovery and a hearing in state court and "[t]hus, did not fail `to develop the factual basis' of his claim in state court, as that threshold condition in § 2254(e)(2) has been construed by this circuit and the Supreme Court."); Parrish v. Small, 315 F.3d 1131, 1135, n.3 (9th Cir. 2003)(remanding to district court for "amplification of the record" where petitioner "clearly requested an evidentiary hearing" in state court but hearing was denied); Lambright v. Stewart, 241 F.3d 1201, 1206 (9th Cir. 2001)(evidentiary hearing required where state court hearing requested
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and denied); Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998)(where petitioner "requested an evidentiary hearing in state court" that was denied, petitioner "diligently sought to develop the factual basis underlying his habeas petition...."). "[N]ew factual allegations do not render a claim unexhausted unless they 'fundamentally alter the legal claim already considered by the state courts.' " Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994)(quoting Vasquez v. Hillery, 474 U.S. 254, 2608 (1986)). The additional facts in Scott Allen's declaration "add some evidentiary support to the claim, [but] they do not `fundamentally alter' it." Belmontes v. Woodford, 350 F.3d 861, 884 (9th Cir. 2003). Petitioner's "inability to fully explore" the facts supporting this claim "stemmed from the state courts' refusal to grant him an evidentiary hearing on the matter, rather than from any failure of diligence on his part." Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999). For all these reasons, Petitioner moves the Court to expand the record to include Scott Allen's Declaration relevant to this Court's determination of the issues pending before it. Conclusion It is respectfully requested that Mr. McKinney be allowed to expand the record to include Scott Allen's Declaration. It is further requested that the Motion to Strike be denied. RESPECTFULLY SUBMITTED this 27th day of February, 2006.
MATHEW & MATHEW P.C.

By:

s/Ivan K. Mathew Ivan K. Mathew Attorneys for Petitioner

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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2006, 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:

Jon G. Anderson Assistant Attorney General Capital Litigation Section e-mail: [email protected]

I hereby certify that on February 27, 2006, I served the attached document(s) by mail on the following, who are not registered participants of the CM/ECF System: Capital Case Staff Attorney Section

s/Karen Gawel

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