Free Motion for Reconsideration - 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] [email protected] Attorneys for Petitioner, JAMES ERIN McKINNEY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JAMES ERIN McKINNEY, Petitioner, v. MOTION FOR RECONSIDERATION DORA SCHRIRO, et al., Respondents. (Assigned to the Honorable David G. Campbell) NO. CV 03-774-PHX- DGC DEATH PENALTY CASE

Petitioner respectfully requests this Court reconsider its ruling dated January 5, 2006. In support of this request, the Petitioner submits the following argument and authorities. A. Additional Facts.
The lawyer for Mr. McKinney did not ask "what happened." Now the Declaration of Scott Allen shows that that question would have made a difference. In the attached Declaration, Mr. Allen states: · Had I been informed that Mr. McKinney had not planned the murder of Mr. Jim McClain, I would have been able to argue to the Supreme Court that my client would be available to testify in his defense regarding the McClain case at trial.

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·

In addition, had I known that my client, James McKinney, did not participate in the act of killing Mr. McClain, I would have been able to present this information during the sentencing phase.

·

Based upon my experience as a criminal lawyer having served as counsel in capital cases, this would have allowed me to present information to the judge for evaluation during the sentencing phase.

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2 Case 2:03-cv-00774-DGC Document 69 Filed 02/03/2006 Page 2 of 7 · I believe the fact that my client was not involved in the murder of Mr. McClain. This is extremely important information which could have made a difference in the sentence received by Mr. McKinney.

The Sixth Amendment of the U.S. Constitution gives criminal defendants the right to effective assistance of counsel. The governing law is United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Courts must ensure that attorneys representing defendants maintain proper standards of professional performance. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 (1970). In short, defendants "cannot be left to the mercies of incompetent counsel."

McMann, 397 U.S. at 771, 90 S.Ct. at 1449. Moreover, "[P]rejudice may result from the cumulative impact of multiple deficiencies." Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542 (1979)) (emphasis added). An attorney's failure to investigate, standing alone, can constitute ineffective assistance of counsel. Keys v. Duckworth, 761 F.2d 390, 393 (7th Cir. 1985). It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore

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all avenues leading to facts relevant to guilt and the degree of guilt and appropriate penalty. Eldridge v. Atkins, 665 F.2d 228, 232 (8th Cir. 1981), cert. denied, Atkins v. Elderidge,456 U.S. 910, 102 S.Ct. 1760 (1982) (emphasis added); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574 (1986); Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998), as amended on denial of reh'g (Nov. 24, 1998) (finding ineffective assistance of counsel based on cumulative impact of errors failing to investigate or prepare for trial). As the Supreme Court has noted: We have many times repeated that not only does due process require that a defendant, on trial in a state court upon a serious criminal charge and unable to defend himself, shall have the benefit of counsel . . . but that it is a denial of the accused's constitutional right to a fair trial to force him [or counsel] to trial with such expedition as to deprive him of the effective aid and assistance of counsel.

White v. Ragen, 324 U.S. 760, 763-64, 65 S.Ct. 978, 980-981 (1945) (internal citations omitted) (emphasis added); See also Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047 (crafting an exception to the general rule requiring a showing of prejudice where circumstances make it unlikely that any lawyer could perform effectively at trial). Failure to conduct sufficient pretrial investigation generally constitutes a clear instance of ineffectiveness. See e.g. Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (ineffective assistance when counsel limited mental health investigation to scant and outdated documents and did not seek competency test). "The fact that there are worse attorneys in the world does not change a bad attorney's lack of diligence into a tactical choice." Jennings v. Woodford, 290 F.3d 1006, 1015 (9th Cir. 2002). The following comments are particularly apt here:
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Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. State v. Williams, 122 Ariz. 146, 151, 593 P.2d 896, 901 (1979), quoting Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1977), quoting Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968) (emphasis added). See Evans v. Lewis, 855 F.2d 631, 637-39 (9th Cir. 1988) (holding counsel's failure to investigate petitioner's mental problems prejudiced petitioner because at petitioner's resentencing psychiatrists were unable to give an opinion with a reasonable degree of certainty due to lapse of time between crime and examination). See e.g. Blankenship v. Missouri, 23 S.W.3d 848, 850-51 (Miss. 2000) (finding trial counsel ineffective because they "had not prepared [defendant] as a witness by asking the questions he proposed to ask and testing his response to anticipated questions on cross-examination"). Under Cuyler v. Sullivan, prejudice is presumed if Petitioner demonstrates that counsel operated under a conflict of interest and that an actual conflict affected his counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct 1708, 1719 (1980). While conflicts are typically thought of as directly adverse representation of multiple clients, courts have considered conflicts, for principles of Cuyler v. Sullivan, to include circumstances and situations where the "conflict" arises due to, or implicates counsel's personal or financial interests. See e.g. United States v. Michaud, 925 F.2d 37, 40-42 (1st Cir. 1991) (teaching of classes to IRS agents); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980), cert. denied by Hearst v. U.S., 451 U.S. 938, 101 S.Ct. 2018 (1981) (book deal); United States v. Sayan, 968 F.2d 55, 64-65 (C.A. D.C. 1992) (fear of antagonizing
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trial judge). To prove that a conflict "affected" his counsel's performance, a defendant must demonstrate that the conflict had some adverse effect on counsel's conduct or caused some lapse in counsel's performance that is contrary to defendant's interests. See United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). It should be noted that an adverse effect is a prerequisite to a presumption of prejudice, but is not the same as prejudice under Strickland. An "adverse effect" requires only a showing that it is likely counsel's

performance would somehow have been different. See Miskinis, 966 F.2d at 1268. In Rompilla v. Beard, the Supreme Court granted Rompilla relief on the grounds of ineffective assistance of counsel. Rompilla v. Beard, ___ U.S. ___, 125 S.Ct. 2456 (2005). The decision in Rompilla is instructive as to what constitutes an unreasonable application of Strickland v. Washington by the state courts such that it may be construed as "objectively unreasonable." A review of this decision, further clarifies the egregious lack of diligence by Petitioner's former counsel in relation to her lack of preparation or investigation, and further demonstrates that the state courts in this case applied the Strickland v. Washington standard in an unreasonable fashion. In Rompilla, the defense attorneys did a somewhat comprehensive investigation into Rompilla's mental health. They spoke to three mental health professionals, interviewed the defendant and family members and pursued false "leads" provided by Rompilla himself. However, despite knowing the government would seek to produce evidence of Rompilla's past conduct from the file of a prior conviction, they neglected to actually review that file. The Supreme Court found this failure to be below an objective standard of competent performance and prejudicial to Rompilla. 125 S.Ct. at 2469.
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What is important to glean from this case is that an attorney's failure to reasonably investigate readily available and apparent avenues of evidence is objective unreasonable. In light of the investigation performed by Rompilla's counsel, there should be little question that, if that level of competence and performance was deficient, then Petitioner was without a doubt inadequately represented. Ineffective assistance of counsel claims may no longer be summarily dismissed as being "tactical choices" without further inquiry. Rather, review must now focus upon whether the investigation supporting the "tactical" decision was itself reasonable and sufficient to indicate a reasoned decision. See Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 2536 (2003); Rompilla v. Beard, 125 S.Ct. 2456 (2005). In short, a tactical decision is only as valid as the investigation supporting it, reviewed objectively. CONCLUSION The failure to ask "what happened" deprived Mr. McKinney of his Fifth, Sixth, Eighth and Ninth Amendment right under the U.S. Constitution. His Amended Habeas Petition should be granted. DATED this 3rd day of February, 2006.
MATHEW & MATHEW P.C.

By:

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

CERTIFICATE OF SERVICE

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I hereby certify that on February 3, 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 3, 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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