Free Motion to Strike - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) JON G. ANDERSON ASSISTANT ATTORNEY GENERAL CAPITAL LITIGATION SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 [email protected] (STATE BAR NUMBER 005852) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JAMES ERIN MCKINNEY,
Petitioner,

CIV 03-774-PHX-DGC RESPONDENTS' MOTION TO STRIKE DECLARATION OF SCOTT F. ALLEN FILED BY PETITONER [Death Penalty Case]

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

Respondents hereby move that this Court strike the declaration of Scott

17 Allen, filed by Petitioner McKinney on February 6, 2006, for the reasons set forth 18 in the attached Memorandum of Points and Authorities. 19 20 21 22 23 24 25 26 27 28
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DATED this 8th day of February, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/ JON G. ANDERSON ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES Argument. In support of Petitioner McKinney's motion for reconsideration, he has filed

4 a declaration from Attorney Scott Allen. (CD at 69, 70.) However, McKinney has 5 failed to file a motion for expansion of the record, pursuant to Rule 7 of the Habeas 6 Rules, to include the declaration. McKinney cannot avoid the mandates of Rule 7 7 and expand the record simply by submitting new material in support of a motion 8 for reconsideration. 9 The Ninth Circuit has held that expansion of the record under Rule 7 10 requires the petitioner to show both diligence in developing the factual basis of the 11 underlying claim in state court and the relevancy of the evidence to the underlying 12 claim, unless he satisfies the narrow exceptions set forth in 28 U.S.C. § 2254(e)(2). 13 See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). McKinney 14 did not file the declaration from Allen in state court. McKinney certainly knew of 15 Allen's existence, and could have obtained the declaration and filed it in state 16 court, if he had exercised diligence. Accordingly, even if McKinney had filed a 17 Rule 7 motion, he would not be entitled to have the habeas record expanded to 18 include the Allen declaration. 19 Moreover, McKinney did not exercise due diligence in federal court in 20 presenting the declaration. McKinney previously filed a motion to expand the 21 record to include four exhibits not presented to the state courts: (1) the declaration 22 of investigator Cal Lash; (2) a study by Professor Liebman; (3) an excerpt from the 23 study, Liebman's "report card" on Arizona; and (4) former Illinois Governor 24 Ryan's speech stating why he commuted all death sentences in Illinois. (CD at 25 62.) McKinney has not shown why he could not have included a declaration from 26 27 28
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Allen as part of his motion to expand the record. Instead, he waited until this Court made its ruling before filing the Allen declaration.

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McKinney should not be allowed to present new evidence that he could have

2 presented before this Court denied his previous motion to expand the record. 3 Otherwise, there will be no order or finality to these proceedings. 4 B. 5 Conclusion. For the above reasons, Respondents respectfully request this Court to strike

6 the Declaration of Scott Allen and order the Clerk of this Court to destroy the 7 document, return it to McKinney, or take other action as this Court deems proper. 8 9 10 11 12 13 14 15 s/ JON G. ANDERSON ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL DATED this 8th day of February, 2006.

16 I hereby certify that on February 8, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 17 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 18 MATHEW & MATHEW, P.C. IVAN K. MATHEW 19 SUSAN T. MATHEW 1850 N. CENTRAL, SUITE 1910 20 PHOENIX, ARIZONA 85004 21 Attorney for Petitioner 22 23 24 25 26 CRM93-1160 27 123992 28
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s/ JON G. ANDERSON