Free Order - 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 Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. [Doc. No. 1]. Pursuant to the Ninth Circuit Court of Appeals' order in Jaramillo v. Stewart, 340 F.3d 877 (2003), this Court held an evidentiary hearing in this matter on August 16-19, 2005, to determine whether Petitioner's procedurally defaulted habeas corpus claim may be reviewed on the merits under the "actual innocence" exception of Schlup v. Delo, 513 U.S. 298 (1995). After consideration of all the evidence, the Court finds: (1) neither Wayne Graham nor his affidavit are credible; (2) Petitioner did not act in self-defense; (3) Petitioner failed to offer any credible newly presented evidence in support of his actual innocence claim; and (4) there is overwhelming factual, forensic and circumstantial evidence by which a reasonable jury would find Petitioner guilty of capital first degree murder. Accordingly, Petitioner's procedurally defaulted habeas corpus petition must be denied as a matter of law because Petitioner is not actually innocent of first degree murder.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ROBERT L. JARAMILLO,

) ) Petitioner, ) ) vs. ) ) DORA B. SCHRIRO, et al., ) ) Respondents. ) _________________________________ )

No. CIV 00-0936-PHX-SMM MEMORANDUM OF DECISION AND ORDER

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FACTUAL BACKGROUND On January 3, 1984, inmate Don Abeyta was stabbed to death in exercise pen three of Special Management Unit II (SMU II) at the Arizona State Prison Complex, Florence. Petitioner and fellow inmates Lino Flores and Pete Moreno were the only other people present in the exercise pen at the time of the murder. On April 5, 1984, Petitioner, Flores and Moreno accepted a package plea agreement and pled guilty to first degree murder in Pinal County Superior Court for the murder of Don Abeyta. The plea agreement provided for life

imprisonment without the possibility of parole for twenty-five years, and removed the possibility of the death penalty. At the change of plea hearing before the Pinal County Superior Court, Petitioner and his co-defendants refused to make any oral statements to the court to form the factual basis of their guilty pleas. Rather, they motioned the court to accept the grand jury transcript and an 89-page packet of information, containing mostly prison incident reports, as the factual basis for their guilty pleas. The grand jury transcript and packet detailed as follows. [Exh. 84 at C]. On January 3, 1984, Correctional Officer Bobby Warren was the only officer supervising exercise pens three and four, and was situated between the two adjacent pens. Officer Warren observed Petitioner, Flores and Moreno wrestle Abeyta to the concrete floor of exercise pen three. Officer Warren saw Flores restrain Abeyta on the ground by placing him in a headlock, and Moreno holding down Abeyta's legs. Next, Officer Warren observed Petitioner withdraw a shank from Abeyta, and then proceed to stab Abeyta three times. Officer Warren yelled at Petitioner to stop, or he would shoot him. Petitioner stepped away from Abeyta soon after Warren's threat of force. Officer Warren called on his radio for assistance in the exercise pen, and several Correctional Officers arrived at the scene shortly thereafter. Abeyta was transported to Pinal County General Hospital via prison ambulance, where he was pronounced dead. An autopsy conducted the same day by the then Pinal County Medical Examiner, Dr. Thomas E. Henry, revealed Abeyta had been stabbed 19 times, including multiple wounds to the heart, liver, and lungs. [Exh. 1 at 58].

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It is undisputed that Officer Warren did not observe the events that led up to the take down of Abeyta. Officer Warren is now deceased. The Pinal County Superior Court accepted the grand jury transcript and packet as the factual basis for Petitioner's guilty plea. Petitioner, Flores and Moreno were all subsequently sentenced to life imprisonment without the possibility of parole for twenty-five years, in accordance with the terms of the plea agreement. Over twelve years after his guilty plea, Petitioner filed a third petition for post-conviction relief in Arizona state court on October 31, 1996, raising a claim of self-defense for the first time. Specifically, Petitioner claimed that he had uncovered newly discovered evidence in the form of an eyewitness, inmate Wayne Graham, who could corroborate his newly asserted claim of self-defense by establishing that (1) Abeyta was the initial aggressor, (2) Abeyta attacked Petitioner with a shank, (3) Petitioner disarmed Abeyta, and (4) Petitioner stabbed Abeyta in self-defense. PROCEDURAL BACKGROUND On April 5, 1984, Petitioner, Flores and Moreno pled guilty to first degree murder in Pinal County Superior Court for the murder of Don Abeyta. Subsequent to Petitioner's guilty plea, he filed a petition for post-conviction relief, also in 1984, claiming that his plea agreement was unconstitutional based on the package deal offered to Petitioner, Flores and Moreno, and that he did not knowingly accept the plea agreement because he was under the influence of mass consumption of Benadryl. Petitioner's petition was denied by the Arizona trial court after an evidentiary hearing. In 1994, Petitioner filed a second petition for post-conviction relief, which was voluntarily withdrawn. On October 31, 1996, Petitioner filed a third petition for postconviction relief, asserting newly discovered evidence. In his third petition, Petitioner claimed that another inmate, Wayne Graham, had witnessed the events leading up to the death of Don Abeyta and could confirm Petitioner's claim that he acted in self-defense. Petitioner submitted an affidavit from Graham, in which Graham swore that he witnessed the victim, Abeyta, initiate the aggression by attempting to stab Petitioner with a shank, that Petitioner disarmed Abeyta, and that Petitioner stabbed Abeyta in -3Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 3 of 23

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self-defense. Further, Petitioner alleged that the prosecution knew of Graham's existence at the time of his acceptance of the plea bargain, but improperly refused to disclose Graham in violation of Brady v. Maryland, 373 U.S. 83 (1963), despite Petitioner's request for discovery. The Arizona trial court denied Petitioner's third petition on April 10, 1997, finding that the nondisclosure of Graham was a pretrial discovery error that was waived by Petitioner's guilty plea. Petitioner did not timely file a petition for review of the trial court's decision; however, one of Petitioner's co-defendants had also filed a petition for post-conviction relief raising the same claim. On April 25, 1997, the co-defendant timely filed a motion for rehearing of the trial court's joint decision of April 10, 1997. Petitioner filed a motion to join in the co-defendant's motion for rehearing, which the trial court granted. However, on May 22, 1997, the trial court denied the motion for rehearing. Petitioner failed to timely file a petition in the Arizona Court of Appeals for review of the trial court's denial of relief. However, Petitioner's counsel attempted to again join the codefendant's timely petition for review, and Petitioner also filed a pro per motion seeking leave to file a late petition for review. The Arizona Court of Appeals denied both motions, without consideration of the merits of Plaintiff's Brady claim. The Arizona Supreme Court summarily denied review of the Court of Appeals' decision on March 31, 2000. Petitioner then filed the present petition for writ of habeas corpus, asserting that his guilty plea was unlawfully induced and not voluntarily made because the prosecution failed to disclose the existence of Wayne Graham, in violation of Brady. This Court denied Petitioner's petition for writ of habeas corpus on December 6, 2001, on the grounds that Petitioner's petition was barred by procedural default for failure to exhaust his Brady claim. Specifically, this Court found that the Arizona state courts' denials of his requests to belatedly file an appeal of the trial court's denial of his third petition for post-conviction relief meant that no Arizona appellate court ever considered the merits of his petition, as required. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that to properly exhaust a federal constitutional claim, a prisoner

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must have afforded the state's highest court the opportunity to rule upon the merits of that claim by "fairly presenting" it to the court in a procedurally correct manner). Petitioner appealed the judgment of this Court to the Ninth Circuit Court of Appeals on December 10, 2001, which reversed the judgment and remanded for further proceedings in Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003). The Ninth Circuit held that Petitioner has alleged newly discovered evidence that, if credible, raises a sufficient doubt about his guilt such that he may be "actually innocent" of the charged crime under the standard of Schlup v. Delo, 513 U.S. 298 (1995). Respondents petitioned the Ninth Circuit for rehearing, suggesting a rehearing en banc, which was rejected on October 31, 2003. Upon remand, if Petitioner produces sufficient evidence of actual innocence, then his procedural default may be excused and this Court shall review his Brady claim on the merits. In order to weigh the evidence of Petitioner's actual innocence, the Ninth Circuit directed this Court to hold an evidentiary hearing. On August 16-19, 2005, the Court held an evidentiary hearing in this matter in accordance with the order of the Ninth Circuit. STANDARD OF REVIEW "To establish actual innocence, petitioner must demonstrate that, in the light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298 (1995) ("a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt"). "[T]he standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. "To be credible, [an actual innocence] claim requires petitioner to support his allegations of constitutional error with new reliable evidence ­ whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence ­ that was not presented at trial." -5Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 5 of 23

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Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) ("we hold that habeas petitioners may pass Schlup's test by offering 'newly presented' evidence of actual innocence"). The actual innocence standard is "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup, 513 U.S. at 315 (1995). The actual innocence standard allows for procedurally barred habeas corpus claims to be reviewed on the merits where there has been a "fundamental miscarriage of justice." Id. "As we have stated, the fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Id. at 324. DISCUSSION At the evidentiary hearing, Petitioner and Respondents offered extensive evidence on the issue of Petitioner's actual innocence in the form of live testimony and numerous exhibits. The Court proceeds to make the following findings in regards to the evidence presented. I. Wayne Graham Central to a determination of actual innocence in this matter is the credibility of Wayne Graham. Graham, along with Petitioner, Flores, Moreno, and Abeyta, was incarcerated in Cell Block Six (CB6) of the Arizona State Prison Complex, Florence, at the time of Abeyta's murder. Twelve years after the murder, on August 19, 1996, Graham drafted an affidavit with the assistance of an inmate legal assistant, Larry Prince, in which Graham swears to have observed the entire sequence of events that occurred in exercise pen three on January 3, 1984, culminating in the murder of Abeyta. In the affidavit, Graham claims to have been in adjacent exercise pen four with three other inmates when he observed Abeyta "attempt to pull a shank from within his pants on his right side." [Exh. 28]. Graham then asserts that "[d]ue to the foregoing[,] inmate Jaramillo reached for the shank that Don Abeyta had and I further observed both inmate's struggle[,] at that point whereas Don Abeyta, being the bigger and stronger of the two, was winning the battle and this went on for at least a minute." Id. Citing Graham's affidavit, in Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003), the Ninth Circuit stated: -6Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 6 of 23

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Jaramillo has presented sufficient evidence, if credible, to support a finding that he is actually innocent of first degree murder. Foremost is the previously undisclosed testimony of Graham, who provided a declaration stating that Abeyta initiated the attack, that Jaramillo wrested the shank from Abeyta, and that he stabbed Abeyta in self-defense. Id. at 883. Further, the Ninth Circuit identified that a principal purpose of the evidentiary hearing was to determine the credibility of the proffered evidence, in particular Graham's affidavit. "There remains a question of the credibility of the proffered evidence. . . . A remand for an evidentiary hearing would allow the parties to develop the factual record . . . . The district court is in the best position to observe the witnesses, including Graham . . . under crossexamination, together with the other evidence available, and to make the ultimate credibility determinations." Id. For the following reasons, the Court finds Graham not credible. A. Graham Invoked his Fifth Amendment Privilege Against Self-Incrimination

Petitioner noticed Wayne Graham as a witness to this Court, and because Graham remains incarcerated, the Court issued a writ of habeas corpus ad testificandum for his production on the dates of the evidentiary hearing. Graham was brought to the Sandra Day O'Connor United States Courthouse in Phoenix, Arizona on August 16, 2005, from his place of incarceration at the Oklahoma State Penitentiary in McAlester, Oklahoma. Upon arrival, Graham informed Petitioner's counsel that he would be invoking his Fifth Amendment privilege against self-incrimination, and therefore would not testify at the evidentiary hearing. At the hearing, the Court appointed independent counsel to represent and confer with Graham regarding his rumored invocation of the Fifth Amendment. The Court then proceeded to call Graham to the witness stand where he formally invoked the Fifth Amendment. In accordance with Hoffman v. United States, 341 U.S. 479 (1951) and United States v. Neff, 615 F.2d 1235 (9th Cir. 1980), the Court determined that given the "peculiarities of the case," a real and appreciable danger of incrimination plausibly existed in the form of perjury, and therefore Graham was not required to establish the validity of the privilege. In an abundance of caution, the Court recalled Graham and his attorney on August 18, 2005, to confirm that the invocation of the privilege was done knowingly and voluntarily. Additionally, the Court inquired as to whether Graham had received any threats, to which Graham answered no. Graham satisfied the -7Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 7 of 23

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Court that his invocation was proper under controlling law, and he was subsequently excused as a witness. In determining that a real and appreciable danger of incrimination plausibly existed in the form of perjury, the Court also considered and foreclosed the possibility that Graham's testimony would somehow implicate him in the murder of Abeyta. There is simply no evidence to support the belief that Graham was somehow involved in the murder, and therefore invoked the Fifth Amendment on that ground. Rather, the only apparent legitimate grounds for invocation of the privilege was perjury. Graham's refusal to testify is significant for several reasons, but perhaps most notably, his absence denied this Court the ability to evaluate his credibility under the crucible of crossexamination, as specifically identified by the Ninth Circuit as a central purpose of the evidentiary hearing. Jaramillo, 340 F.3d at 883. Accordingly, given the import ascribed to Graham's testimony by the Ninth Circuit, to a certain extent, the purpose of the hearing was substantially frustrated by Graham's refusal to testify. Because this Court did not have the opportunity to observe and determine Graham's credibility through live testimony before this Court, such a determination must now be adduced by the weight of the surrounding evidence. Additionally, Graham's invocation of the Fifth Amendment permits this Court to draw an adverse inference, which the Court elects to do. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995) ("it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding"). Therefore, the Court infers that it is likely Graham invoked the privilege because his affidavit is false and he would have (1) committed perjury by testifying to the truth of the affidavit, or (2) confessed to perjury by testifying to the falsity of the affidavit, which was sworn and taken under oath. It follows that Graham's credibility is undermined by his invocation of the Fifth Amendment privilege. Upon Graham's refusal to testify, the Court admitted into evidence his affidavit and deposition, which, in the absence of live testimony, the Court now turns to in evaluating his credibility. -8Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 8 of 23

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B.

The Affidavit and Deposition

Beyond the effect of Graham's refusal to testify on the credibility of the affidavit, there are several credibility pitfalls that are apparent wholly from the affidavit and deposition. 1. The Origins of the Affidavit

There are conflicting stories regarding the genesis of the 1996 affidavit. In a subsequent declaration by Graham on December 18, 2002, and in his deposition, he states that he ran into Lino Flores in 1996, at which time they discussed the murder of Abeyta. It was at this point that Graham allegedly informed Flores that he had witnessed the incident, and would be willing to sign an affidavit setting forth that Abeyta was the initial aggressor. However, during the evidentiary hearing, Petitioner testified that he, not Flores, ran into Graham at the law library in SMU II, at which point they engaged in a conversation about the murder of Abeyta, and Graham informed him that he had witnessed the incident and would be willing to draft an affidavit identifying Abeyta as the initial aggressor. Therefore, Graham's declaration and deposition are inconsistent with Petitioner's testimony because Graham states Flores was the one who discovered that he was a witness and asked him to draft the affidavit, whereas Petitioner asserts that he was the one who in fact discovered Graham and asked him to draft the affidavit. Further bringing into question the validity of the affidavit is the proximity in which Graham lived in relation to Petitioner, Flores, and Moreno. The Court heard testimony and received exhibits detailing that Graham lived in either the same unit or pod as Petitioner, Flores or Moreno on at least four separate occasions between 1987 and 1995, and during such time they had the opportunity to communicate with one another. [Exh. 76-79; Testimony of Officer Morrow]. It is difficult, at best, to understand why Graham would not have made known that he witnessed the incident throughout the entire time he lived in proximity to Petitioner, Flores, and Moreno, unless he did not see what he now claims to have seen. Additionally, Graham's proximity to Petitioner, Flores and Moreno lends itself to the opportunity to "invent" Graham as an alleged witness to the murder of Abeyta. In that same mold, it bears noting that Petitioner and Graham both enlisted the help of inmate legal assistant Larry Joseph Prince, who ultimately

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drafted the affidavit for Graham to sign, and Prince may have served as a conduit between the two to build the ruse of Graham as a witness. 2. Whether Graham was Interviewed After the Murder

Graham expressly states in the 1996 affidavit that "[a]s a result of the death of Don Abeyta I was interviewed shortly thereafter by an investigator or prosecutor for the State of Arizona, the Department of Corrections in and for the County of Pinal and this transpired at CB6. . . . I informed the investigator or prosecutor at that time exactly what I have set forth in this Affidavit and that I would be willing to testify to said facts" [Exh. 28]. This claim by Graham that he was interviewed is at the heart of Petitioner's Brady claim, as Petitioner asserts that the prosecution withheld exculpatory evidence, namely Graham's existence. However, after consideration of all the evidence, the Court finds that Graham was never interviewed after Abeyta's murder. The Court heard testimony from Joseph Savalas, the Arizona Department of Corrections' case investigator for the murder of Abeyta. He testified that he was responsible for conducting all interviews of potential witnesses, and that he did not delegate this responsibility to anyone. Further, he testified that the prosecutor, Barry McNaughten, did not conduct any inmate interviews. Savalas proceeded to testify that he never interviewed Graham, and only spoke with those inmates identified in his report. Graham is not identified in his report. [Exh. 84 at C]. It follows that there is no corroborating evidence that Graham was interviewed by any government official. Additionally, Graham's recollection of the alleged interview is suspect. He stated in his deposition that he is not sure who interviewed him, whether the interview was tape recorded, whether the man who interviewed him was bald or had facial hair, he could not describe his build or height, and he did not know whether the interview took place minutes or days after the murder of Abeyta. [Depo. of Graham at 70-74]. It is apparent from the evidence presented at the hearing that all inmate interviews were conducted by Savalas, and if in fact Graham was interviewed, it would have been Savalas doing the interviewing. Significantly, in 1982, Graham filed a lawsuit naming as a Defendant, among others, Joseph Savalas. [Exh. 58]. Therefore, it - 10 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 10 of 23

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is reasonable to assume that Graham knew who Savalas was, and if he had in fact been interviewed by Savalas in 1984, he would have been able to subsequently identify him. Therefore, the Court finds that Graham was never actually interviewed about the murder of Abeyta, thus rendering his affidavit false. C. Additional Credibility Factors

On top of Graham's other credibility shortcomings are additional factors further undermining Graham's story. First, Graham asserts in his deposition that he was in exercise pen four at the time of the murder with three other inmates, including Billy Owens. Respondents offered evidence at the hearing that there was not a Billy Owens in the custody of the Arizona Department of Corrections on January 3, 1984. Second, Graham has previously been convicted of aggravated assault, reckless endangerment, and burglary. Third, Graham's prior lawsuit against the Arizona Department of Corrections indicates that he may be biased against the Department. Fourth, Graham did not mention Flores or Moreno in the affidavit. If, as Graham claims, Flores asked him to draft an affidavit, he would not have omitted all mention of Flores. Further, if Graham actually had witnessed the events of the murder, he would have included some mention of Flores and Moreno in the facts set forth in the affidavit. And finally, the details contained in Graham's deposition and affidavit are noticeably vague for someone who claims to be an eyewitness to a murder. As previously mentioned, the affidavit makes no mention of Flores or Moreno; nor does it detail that the parties fell on the ground, their location in the exercise pen, or how the altercation ended. For all the foregoing reasons, the Court finds that Graham is not credible. II. The Glove In addition to Graham, the Ninth Circuit specifically cited the glove on Abeyta's right hand as a circumstantial factor evidencing the validity of Petitioner's self-defense claim. The Ninth Circuit stated: The second item of proof offered is the autopsy report. The report shows that Abeyta covered his right hand with a glove, and then wrapped a bandana around his palm. Jaramillo theorizes that Abeyta did so to protect his hand from the nonhilted shank. Additionally, Jaramillo claims that photographs taken by the medical examiner appear to show that the same fabric tied around Abeyta's hand - 11 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 11 of 23

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was also found on the shank, supporting Jaramillo's claim that Abeyta had attempted to use the shank against him. Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir. 2003). After consideration of all the evidence,

3 the Court finds there is no evidence to substantiate a connection between the glove and the 4 shank. 5 A. 6 The autopsy photos taken by Pinal County Medical Examiner Dr. Thomas E. Henry on 7 the day of Abeyta's murder clearly identify a glove on Abeyta's right hand. [Exh. 2, 5]. The 8 glove is wrapped across the palm and behind the thumb with a black bandana. Dr. Henry 9 testified that law enforcement officers also brought the shank used in the murder of Abeyta to 10 the autopsy, where he photographed and examined it. [Exh. 4]. The photo of the shank reveals 11 the handle was composed of some sort of fabric, either originally black or blackened by stains, 12 and a brown shoe string tied around the handle. Dr. Henry testified that he did not specifically 13 compare the material on the shank with the black bandana, but that upon his review of the 14 evidence, the known similarities were limited to the color of the material ­ black. The 15 document entitled "Request for Scientific Examination" [Exh. 14], completed by Investigator 16 Joseph Savalas, identifies the material on the shank as "sheet strips wrapped around for a 17 handle." Dr. Henry testified that this description of the material is accurate. Further, former 18 Correctional Officer Baugher testified that the shank material was likely from a t-shirt or a 19 sheet. Petitioner did not offer any additional evidence attempting to link the material used for 20 the shank handle and the black bandana, and without more, there has been no showing of a 21 connection between the fabric on the shank and the bandana. Accordingly, there is simply no 22 evidence indicating that the material used for the shank handle was in any way associated with 23 or derived from the black bandana found wrapped around Abeyta's glove, nor was there a 24 showing that any material was even missing from the black bandana. 25 B. 26 At the hearing, the Court entertained various theories regarding why Abeyta would have 27 been wearing a glove at the time of the murder, including: (1) to protect his hand from the non28 - 12 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 12 of 23

Fabric

Purpose

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hilted shank; (2) for playing handball; or (3) for lifting weights. After consideration of all the evidence, the Court finds that Abeyta most likely wore the glove for some sort of recreational purpose, namely, either for handball or lifting weights. It is slightly plausible that Abeyta wore the glove to protect his hand from the non-hilted shank; however, the overwhelming evidence is to the contrary. First, as more fully detailed in Section III, infra, the Court finds that the surrounding facts evince Petitioner was the initial aggressor. If in fact Petitioner was the initial aggressor, then he also would have been responsible for the introduction of the shank into the exercise pen. It follows that Abeyta would not have worn the glove to protect his hand from the shank if he did not originally possess the shank. Second, Officer Baugher testified that in his extensive experience at CB6 with prison shankings, he did not recall any other in which the assailant wore a glove. Third, the shank had a brown shoe string tied around the handle that may have served as a make-shift hilt, thus eliminating the need for extra protection. Therefore, Abeyta's glove is not indicia that he possessed a shank the day of his murder. The most likely scenario, however, is that Abeyta wore the glove for a recreational purpose. Correctional Officers Morrow and Edwards testified that inmates commonly wore a glove in the various exercise pens to play handball or for lifting weights. In fact, Officer Morrow and Investigator Savalas both testified that they personally observed Abeyta wearing a glove on other occasions for the purpose of playing handball. The Court heard conflicting testimony on whether handball could be played in exercise pen three, the site of the murder. The walls of pen three had windows, and therefore, some witnesses recounted that handball was played only in pen four. However, Officer Morrow testified that despite the absence of a handball court, it was possible to play handball in pen three and that he personally observed inmates do so on several occasions. Irrespective, the Court also heard testimony from Officer Edwards that an inmate had no knowledge of whether they would be taken to exercise pen three or four prior to the time that they were removed from their cell. As such, an inmate, in this case Abeyta, would wear a glove at the time he was to be taken to an exercise pen on the chance that he would be taken to pen four where it is undisputed that handball was played. Officer Edwards - 13 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 13 of 23

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escorted Abeyta to pen three on January 3, 1984, and testified that Abeyta was wearing a glove that day. The Court also notes that a bandana wrapped across the palm of a glove is consistent with additional protection for either handball or weightlifting, as confirmed by the testimony of the correctional officers. In summary, the Court finds that there is little to no evidence to substantiate a connection between Abeyta's glove and the shank used to murder him. III. Self-Defense The Ninth Circuit's opinion in Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003), identified Petitioner's claim of self-defense as the vehicle by which he may satisfy the actual innocence standard of Schlup. The Ninth Circuit stated: Jaramillo's proffered evidence of actual innocence supports a theory of justification pursuant to self-defense. Under Arizona law in effect at the time of the offense charged, justification was an affirmative defense rendering the conduct noncriminal. . . . If the defense had been established, Jaramillo would not have been convicted because his conduct was non-criminal, and, thus, he would have been actually innocent of the offense charged. Id. at 883 (citation omitted). Under Arizona law, "a person is justified in threatening or using

15 physical force against another when and to the extent a reasonable person would believe that 16 physical force is immediately necessary to protect himself against the other's use or attempted 17 use of physical force." A.R.S. § 13-404; see also State v. Gilfillan, 196 Ariz. 396, 406 ¶ 39, 998 18 P.2d 1069, 1079 (Ct. App. 2000). The Court finds that Petitioner did not act in self-defense. 19 A. 20 As a preliminary matter, the Court notes that even assuming Petitioner's version of the 21 facts to be true, he has not presented a valid claim of self-defense. Petitioner does not dispute 22 that Abeyta was stabbed 19 times after he had been disarmed, and that he was the only one who 23 stabbed Abeyta. It defies logic to assert self-defense in the face of such uncontroverted 24 evidence, as clearly no reasonable person would believe that stabbing Abeyta 19 times would 25 be immediately necessary for Petitioner to protect himself from Abeyta's alleged use of force 26 ­ particularly when Abeyta had been disarmed. In fact, at the very moment Abeyta was 27 disarmed, all threat of deadly force against Petitioner ceased to exist, yet Petitioner proceeded 28 - 14 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 14 of 23

Self-Defense on Petitioner's Version of the Facts

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to use deadly force against Abeyta by stabbing him 19 times. See, e.g., State v. Reid, 155 Ariz. 399, 403, 747 P.2d 560, 564 (1987) (finding that a defendant's right to use force in self-defense ends when the threat of physical harm is no longer imminent); State v. Leonardo, 161 Ariz. 111, 113, 776 P.2d 789, 791 (1989) ("When using deadly physical force in self-defense, a person must prove, among other things, that a reasonable person would believe deadly physical force is necessary to protect himself against the other's use or attempted use of unlawful deadly physical force."); see also A.R.S. § 13-405(2). Such facts cannot support a claim of self-defense as, even under Petitioner's version of the facts, Abeyta was disarmed and no longer presented a threat of deadly force. Additionally, during cross-examination of Petitioner, the following exchange occurred: Q: So do you agree with me that you ­ your upper body, at least, was free to move at that point? A: Q: A: Q: A: Q: A: Q: A: Mine? Yes. You could have even stood up at that point if you wanted. Yes. Because no one was holding you down. Right. Instead, you stabbed him a couple of times, didn't you? Yes. And then isn't it true that you stabbed him in the back? Yes.

The exchange continued: Q: Now, isn't it true that when Mr. Abeyta rolled on his back, you could have stood up at that point? A: Q: A: Q: Yes. You could have even walked away. Yes. You could have thrown the shank on the roof. - 15 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 15 of 23

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A: Q:

Yes. In fact, you could have stood up at any time during this altercation and thrown that shank on the roof, couldn't you?

A:

Well, you've answered that, yes.

Therefore, Petitioner testified to this Court that no deadly threat existed but he elected to 6 proceed to stab Abeyta 19 times. Notably, the Ninth Circuit in its opinion made no mention of 7 that fact that Petitioner stabbed Abeyta 19 times ­ a fact that was critical to a separate panel of 8 the Ninth Circuit addressing the same claim of self-defense in co-defendant Lino Flores's 9 appeal. There, the Ninth Circuit stated: "In light of the evidence that the victim was stabbed 19 10 times, the witness's testimony would only have supported an implausible self-defense claim." 11 Flores v. Stewart, 52 Fed. Appx. 924 (9th Cir. 2002). The Court does not cite Flores for any 12 precedential value; rather, the Court does so to point out the unmistakable deficiencies of 13 Petitioner's self-defense claim. Accordingly, the facts as set forth by Petitioner simply do not 14 create a viable claim of self-defense, and by Petitioner's own admission, physical force was not 15 "immediately necessary to protect himself against the other's use or attempted use of physical 16 force." See A.R.S. § 13-404. Given the shortcomings of Petitioner's self-defense claim, the 17 Court need not go any further. However, the Court proceeds to set forth its findings of the facts 18 of Abeyta's murder. 19 B. 20 Of course, the Court does not find that the facts are exactly as Petitioner would have the 21 Court believe. Rather, the evidence reveals that Petitioner was the initial aggressor here, and 22 that he proceeded to stab Abeyta 19 times while his accomplices, Flores and Moreno, held 23 Abeyta down in a coordinated and premeditated effort to murder him. 24 1. 25 It is clear from the evidence presented that none of the inmates arrived in exercise pen 26 three with the shank as they were all thoroughly strip-searched by prison officials prior to their 27 introduction into the pen. The shank was about 8 inches long, and could not have been 28 - 16 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 16 of 23

What Really Happened

Who Introduced the Shank into Pen Three

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smuggled into the pen on the person of Abeyta, Petitioner, Flores or Moreno. [Exh. 3, 4]. Accordingly, the shank must have been procured by someone while inside the pen. Logically, the first to arrive in the pen had a much greater opportunity to procure the shank. Petitioner testified that Abeyta was already in exercise pen three when Petitioner, Flores and Moreno arrived. Additionally, Patrick Russell Wayne, a former inmate of CB6 with a ground floor cell adjoining exercise pen three testified that he had a brief conversation with Abeyta through his cell window prior to the murder, and that Abeyta was the only person in exercise pen three at that time. However, the Court finds Petitioner's and Wayne's testimony not credible. First, Petitioner asserts that Flores, Moreno and himself were brought to the pen together and introduced into pen three at the same time, to find Abeyta already there. Correctional Officer Edwards testified that this would never have occurred. Officer Edwards stated that the security procedures in place in CB6 mandated that inmates were escorted and introduced into the exercise pen separately to avoid the potential for either altercations among inmates or a unified attack against prison officials. Therefore, Petitioner's testimony that Flores, Moreno and himself were escorted and introduced into the pen at the same time is inconsistent with CB6 policy. Second, Wayne and Petitioner have a history, including being two out of three inmates transported from the Arizona Department of Corrections to the El Reno Penitentiary in Oklahoma in 1980, where they had semi-regular contact with one another, and a close living proximity in CB6 at the time of the murder. Wayne also has felony convictions for bank robbery and felon in possession of a firearm. Wayne testified that he was watching television during the murder of Abeyta, and did not witness the actual altercation or murder, but insists that Abeyta was in the pen prior to the arrival of Petitioner, Flores and Moreno. After the murder of Abeyta, Wayne was interviewed by Savalas and refused to make any statements, including that Abeyta was in the pen first. Wayne is lacking in credibility because of his bias towards Petitioner, his felonious history, his failure to disclose to Savalas that Abeyta was in the pen first, and in light of the surrounding evidence. - 17 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 17 of 23

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Third, and most significantly, is the testimony of Officer Edwards who stated that he was the correctional officer who introduced Abeyta into exercise pen three, and that Petitioner, Flores and Moreno, all of whom Officer Edwards knew, were already in pen three. Less than a minute after introducing Abeyta into the pen, Officer Edwards was called back to exercise pen three via his radio after being informed that there had been a shanking. Accordingly, the Court finds that based on Officer Edwards' testimony, Petitioner, Flores and Moreno were in the pen prior to the arrival of Abeyta. By virtue of Petitioner, Flores, and Moreno's prior arrival, they were in a greater position to procure a shank than was Abeyta. Additionally, because Officer Edwards was called back to the pen within a minute after dropping Abeyta off, it follows that there is almost no way Abeyta would have had the opportunity to procure a shank within that period of time because: (1) Petitioner testified that he took 5-6 laps around the pen with Abeyta before the altercation; (2) Edwards received the call after Abeyta had been wrestled to the ground and stabbed 19 times; and (3) Abeyta would have had to procure the shank under the noses of Petitioner, Flores and Moreno. Therefore, it is implausible that Abeyta had the time to procure the shank given the sequence of events that must have occurred in the minute before Edwards received the call. The Court heard testimony on the violent nature of CB6 and, in particular, the frequent possession of weapons by the inmates. It is undisputed that despite the best efforts of correctional officers, several of the inmates, including Petitioner, had at one point in time or another possessed a homemade shank. It is also undisputed that a shank could easily be introduced into an exercise pen by either an adjoining cell or through "fishlining". The cells adjoining pen three had windows that could be opened through the use of a handcrank. There was a metal screen between the cell and the window that the inmates often found a way to remove or break such that objects could be passed freely through the screen and window into the adjoining pen. "Fishlining" was described to the Court as a process by which a weapon or other object could be delivered to another part of a prison complex by attaching the weapon to a line and essentially conveying it to a destination. It was the opinion of the officers that the brown shoe string attached to the handle of the shank may have served the purpose of - 18 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 18 of 23

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facilitating fishlining the shank into the pen. It is unknown both who introduced the shank into the pen, and how it was introduced, but it is clear to the Court that there was ample opportunity for a shank to be introduced either by being passed through a window or through fishlining. Therefore, the Court finds that Petitioner, Flores and Moreno procured the shank because (1) they arrived in the pen prior to Abeyta and (2) had the opportunity to obtain the shank through the window of an adjoining cell or fishlining. Moreover, given the testimony of Officer Edwards', Abeyta could not have procured a shank, taken 5-6 laps as Petitioner claims, and been stabbed 19 times within the span of one-minute or less. 2. The Altercation

Picking up from where all the parties are in the pen, Petitioner asserts that (1) he took 5-6 laps around the exercise pen with Abeyta, (2) Abeyta then slowed down, lifted up his shirt, and reached for a shank that was tucked into his pants, (3) Flores, Moreno, and the guard cage, where Officer Warren was located, were all within a few feet or less of Abeyta when he stopped and reached for the shank, (4) Flores stated in Spanish, but did not yell, that Abeyta had a shank, (5) Petitioner reached for the shank while it was still in Abeyta's pants, (6) a struggle for the shank ensued and Flores grabbed Abeyta from behind in an effort to restrain him, (7) Flores brought Abeyta down, (8) Abeyta landed on his back, on top of Flores, and Petitioner landed on top of Abeyta, (9) upon impact from the fall, the shank fell to the ground and Petitioner picked it up, (10) Petitioner started stabbing Abeyta because he was fearful for his life, (11) Abeyta continued to struggle and tried to grab Petitioner's arms and hand, (12) Petitioner stopped stabbing Abeyta and walked away from him when the correctional officers entered pen three, (13) Petitioner threw the shank on the roof, and (14) throughout the entire altercation, neither Petitioner, Flores, nor Moreno ever once called for help even though Officer Warren was only a few feet away. Petitioner does not specifically recall Moreno intervening. The Court finds Petitioner's version of the altercation not credible. First, if Abeyta had possessed the 8 inch shank in his pants while walking around the exercise pen 5-6 times, he would have been forced to walk awkwardly and would have received some cuts to his leg from both the sharp shank rubbing against him and from attempting to - 19 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 19 of 23

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withdraw the shank from his pants during the altercation. The autopsy report did not reveal any cuts to Abeyta's leg or hip area, nor to his clothes. Further, Petitioner testified that he did not notice Abeyta walking funny or with a limp. Second, if Abeyta were the initial aggressor, he likely would have wanted to attack Petitioner away from others to prevent their intervention, especially as Abeyta was likely aware of a pre-existing relationship among Petitioner, Flores, and Moreno (Petitioner admitted on cross-examination that he was friends with Flores and Moreno). However, under Petitioner's version of the facts, Abeyta inexplicably attempted to stab him within a few feet of Flores, Moreno and the guard cage. Third, neither Petitioner nor Flores or Moreno ever called for help. According to Petitioner, Flores' initial reaction to Abeyta's attempt to pull out a shank was to say, in a regular volume, "he has a shank." It is not believable that if Abeyta were in fact the initial aggressor that neither Petitioner, Flores nor Moreno would ever once call for help or yell to Officer Warren that Abeyta had a shank. If they were in fact fearful of their lives, as Petitioner claims to have been, the natural reaction would have been to call attention to the situation rather than proceed quietly without so much as a comment to a guard situated mere feet away. Fourth, Petitioner claims that he stabbed Abeyta because he was fearful for his life; however, the evidence reveals that Abeyta was unarmed, was being restrained by both Flores and Moreno, and that Abeyta was likely losing strength during the struggle because of the stab wounds inflicted by Petitioner, see infra III(B)(3). [Exh. 1; Testimony of Dr. Henry, Dr. Keen]. Notably, Officer Warren observed the altercation from the point of the takedown of Abeyta, and stated in his report that Flores and Moreno were holding Abeyta down, a fact that Petitioner does not dispute. [Exh. 1]. Flores had Abeyta in a headlock and was holding his right arm. Moreno was holding down Abeyta's legs. Petitioner also does not dispute that Abeyta was disarmed, as the shank had been dislodged by the fall and recovered by Petitioner. Therefore, the Court finds that Petitioner could not reasonably have been fearful for his life. Fifth, after the correctional officers had entered pen three and secured the area, neither Petitioner, Flores nor Moreno ever once said to them that Abeyta was the initial aggressor and - 20 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 20 of 23

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that they acted in self-defense. In fact, self-defense was never raised at all until the creation of Wayne Graham as a witness in 1996. At the time of the change of plea hearing, Petitioner knew he had a "potential" self-defense claim, but opted not to mention it. Petitioner, Flores or Moreno reasonably would have at some point stated that Abeyta attacked them ­ whether during the altercation, immediately after the murder, while they were being interviewed about the murder, or during the legal proceedings arising out of the murder. Instead, all three chose to plead guilty to first-degree murder and face life imprisonment without so much as a whisper about self-defense. If in fact Abeyta was the initial aggressor, the Court cannot understand why Petitioner, Flores and Moreno failed to ever once mention that they acted in self-defense until 12 years later, despite having several opportunities to do so. Accordingly, the Court finds that Petitioner's version of the facts is not credible. 3. Forensic Evidence

Further controverting Petitioner's self-defense claim is the forensic evidence advanced before the Court. Petitioner claims that Abeyta continued to offer substantial resistance throughout the altercation, and on that basis, Petitioner was fearful for his life. The scientific and forensic evidence presented to the Court dispels this claim. The Court heard expert medical testimony from both Dr. Henry and Dr. Philip Keen which conclusively established that the stab wounds to Abeyta, many of which were to vital organs and resulted in a significant loss of blood, rendered Abeyta incapable of offering resistance such that Petitioner could not logically have feared for his life throughout the entirety of the altercation. On this point, Officers Baugher and Edwards, both of whom entered the pen immediately after the shanking, testified that Abeyta tried to stand up, but was physically incapable of doing so because of the injuries sustained during the altercation. They also testified that there was a river of blood running into a drain from Abeyta's body. Additionally, Officers Baugher and Edwards testified that Abeyta's clothes were soaked with his blood, and so was the front of Flores' shirt. Dr. Henry and Dr. Keen testified that the blood on the front of Flores' shirt is consistent with Flores holding Abeyta from behind and being pressed against the wound to Abeyta's back, and that the wound to Abeyta's back would have bled extensively. The doctors also testified that the wound to - 21 Case 2:00-cv-00936-SMM Document 189 Filed 09/19/2005 Page 21 of 23

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Abeyta's back was likely the first inflicted, and thereafter, the evidence is consistent with Flores and Moreno holding Abeyta while Petitioner repeatedly stabbed Abeyta in the chest and abdomen. The Court finds the testimony of Officer Baugher, Officer Edwards, Doctor Henry, and Doctor Keen credible. Significantly, the medical evidence also reveals a lack of any defensive wounds to Abeyta's hands or forearms. Dr. Keen and Dr. Henry both testified that the numerous injuries sustained by Abeyta to his chest and abdomen, combined with the absence of defensive wounds to the hands and forearms, is consistent with being held down without the ability to defend. Further, Petitioner did not sustain any defensive wounds. The absence of defensive wounds on either Petitioner or Abeyta is entirely inconsistent with Petitioner's claim of self-defense, and consistent with first-degree murder. Dr. Keen and Dr. Henry further opined that Abeyta likely could not have offered significant resistance to Petitioner towards the end of the altercation, yet Petitioner continued to stab him. Therefore, the facts reveal that Abeyta was restrained by two men (three including Petitioner), unarmed, and sustained fatal injuries rendering him likely incapable of offering significant resistance. As such, Petitioner could not reasonably have been fearful for his life and was not justified in using deadly force against Abeyta, let alone stabbing him 19 times. 4. Summary

Although the only people that will ever really know exactly what happened on January 3, 1984 in exercise pen three are Abeyta, Jaramillo, Moreno, and Flores, the Court finds that a reasonable jury would find beyond a reasonable doubt that: (1) Abeyta was introduced into the pen to find Petitioner, Flores and Moreno already there; (2) Petitioner had already procured a shank from another inmate through a cell window adjoining pen three or through fishlining; (3) shortly after Abeyta entered the pen, Petitioner stabbed him in the back; (4) Flores then grabbed Abeyta from behind and took him to the ground; (5) Moreno held down Abeyta's legs; and (6) Petitioner stabbed Abeyta numerous times in the chest and abdomen. As such, a claim of self-defense is not viable as a matter of law, and therefore, Petitioner is not actually innocent

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of first-degree murder because no reasonable juror would have found him innocent of capital first degree murder. CONCLUSION Petitioner has failed to offer any new and reliable evidence of actual innocence. The Court finds that Wayne Graham is not credible and that Petitioner did not act in self-defense as a matter of law under either his version of the facts or the Courts. Accordingly, there has been no fundamental miscarriage of justice here entitling Petitioner to pass through the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995). In the light of all the evidence, no reasonable juror would have found Petitioner innocent of capital first-degree murder for the murder of Don Abeyta, and therefore his petition for writ of habeas corpus must be denied. See Bousley v. United States, 523 U.S. 614, 623 (1998).

Accordingly, IT IS THEREFORE ORDERED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1], is hereby DENIED. IT IS FURTHER ORDERED this matter is hereby terminated.

DATED this 19th day of September, 2005.

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