Free Order on Motion for Miscellaneous Relief - 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 are Petitioner's Motion to Preclude Admission of Testimonial Hearsay Evidence [Doc. No. 67]; Respondents' Motion in Limine Re: Admissibility of Evidence of Flores' Prior Violent Acts [Doc. No. 70]; Respondents' Motion in Limine Re: Admissibility of Dr. Keen's Expert Opinion Testimony [Doc. No. 72]; Respondents' Motion in Limine Re: Admissibility of Weapons Evidence [Doc. No. 73]; Respondents' Motion in Limine Re: Admissibility of Lawsuit Evidence and Motion to Admit Exhibits [Doc. No. 75]; Respondents' Motion in Limine Re: Petitioner's Waiver of Work Product Privilege and Motion for Discovery [Doc. No. 90]; Respondents' Motion in Limine Re: Petitioner's Prior Violent Acts [Doc. No. 92]; Respondents' Motion in Limine Re: Admissibility of Evidence of Moreno's Prior Violent Act and Possession of Shanks [Doc. No. 93]; Respondents' Motion to Admit Exhibits [Doc. No. 96]; Respondents' Motion in Limine Re: Testimony Regarding Visitation Area of Cellblock 6 [Doc. No. 102]; Respondents' Motion in Limine Re: Applicability of Attorney-Client Privilege to Petitioner's Statements to Larry Joe Prince [Doc. No. 103]; Respondents' Motion in Limine Re: Admission of David M. Farley's Report Pursuant to Federal Rule of Evidence 803(5) [Doc.
Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 1 of 28

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 ORDER

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No. 108]; Respondents' Motion in Limine Re: Former Deputy Pinal County Attorney Barry McNaughten [Doc. No. 109]; Respondents' Motion in Limine Re: Impeachment of Lino Flores with his Felony Convictions [Doc. No. 111]; Respondents' Motion in Limine Re: Impeachment of Petitioner with his Felony Convictions [Doc. No. 112]; Respondents' Motion in Limine Re: Impeachment of Wayne Graham with his Felony Convictions [Doc No. 113]; Respondents' Motion in Limine Re: Impeachment of Larry Joseph Prince with his Felony Conviction [Doc. No. 114]; Respondents' Motion in Limine Re: Impeachment of Patrick Russell Wayne with his Felony Convictions [Doc. No. 115]; Respondents' Motion to Preclude Petitioner's New Witnesses [Doc. No. 119]; and Respondents' Motion Re: Barry McNaughten's Conflict with Scheduled Evidentiary Hearing Date [Doc. No. 120]. After consideration of the arguments advanced by the parties, the Court makes the following rulings. BACKGROUND In 1984, Petitioner and two co-defendants, Lino Flores and Pete Moreno, pled guilty to the first degree murder of a fellow inmate, Don Abeyta. 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. [Doc. No. 82 at Exh. A, 16-18]. 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. [Id.]. The grand jury transcript and packet detailed that on January 3, 1984, Correctional Officer Bobby Warren observed Petitioner, Flores and Moreno wrestle Abeyta to the concrete floor of exercise pen 3 at the Arizona State Prison Complex, Florence. [Doc. No. 82 at Exh. C, 6]. Warren was the only officer supervising two exercise pens, and was situated between the two pens. Warren then allegedly saw Flores restrain Abeyta on the ground by placing him in a headlock, and Moreno holding down Abeyta's legs. [Id. at 7]. Next, Warren allegedly observed Petitioner withdraw a shank from Abeyta, and then proceed to stab Abeyta three times. [Doc. No. 82 at Exh. D]. 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 -2Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 2 of 28

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Pinal County General Hospital via prison ambulance, where he was pronounced dead. Abeyta's autopsy report indicated that he had been stabbed 19 times. [Id.]. It is undisputed that Warren did not observe the events that led up to the take down of Abeyta. Petitioner now claims that Abeyta attacked him with a shank, and that while Flores and Moreno sought to restrain Abeyta, he stabbed Abeyta in self-defense after disarming him. 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. [Doc. No. 1 at 3]. 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 post-conviction 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 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, this 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 -3Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 3 of 28

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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 a codefendant's timely petition for review, and Petitioner also filed a pro per motion 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 this 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. 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 petition meant that no Arizona appellate court ever considered the merits of his petition, as required under Castille v. Peoples, 489 U.S. 346, 351 (1989) (to properly exhaust a federal constitutional claim, a prisoner 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). 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, which is currently set for August 16-19, 2005. The Court proceeds to address the pre-hearing motions filed by the parties in this matter. -4Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 4 of 28

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DISCUSSION Petitioner's Motion to Preclude Admission of Testimonial Hearsay Evidence Petitioner seeks to preclude admission into evidence of any testimonial hearsay statements by unavailable declarants, including grand jury transcripts and investigative reports drafted by correctional and police officers who are unavailable to testify. Of particular concern to Petitioner is the introduction of Corrections Officer Bobby Warren's report. CO Warren was the corrections officer on duty at the time Petitioner allegedly stabbed Don Abeyta. His report details his observations of Abeyta's death. However, Warren is now deceased. Petitioner asserts that he has never had the chance to cross-examine Warren, and introduction of his statement now would violate the hearsay bar and the Confrontation Clause of the Sixth Amendment. A. Confrontation Clause

Petitioner asserts that the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), held that the Confrontation Clause of the Sixth Amendment prevents the government from using "testimonial" evidence against an individual if the declarant is unavailable to testify and the accused individual has not yet had the opportunity to confront the declarant. However, Respondents maintain that neither the Sixth Amendment nor Crawford are applicable here because the Confrontation Clause only applies to criminal proceedings, and it is well-settled that habeas corpus is a civil proceeding. The Court agrees that the Confrontation Clause is inapplicable here. The Sixth Amendment of the United States Constitution states, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." While Petitioner does not dispute that habeas corpus is a civil proceeding, he does maintain that habeas corpus is unique as compared with a traditional civil proceeding. On that basis, Petitioner asserts that Crawford should be extended to habeas corpus proceedings, and that "it is not unreasonable to assume that the Circuit Court will decide that confrontation rights apply to habeas challenges against criminal prosecutions." [Doc. No. 65 at 2-3]. The Court is not persuaded. -5Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 5 of 28

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Petitioner offers no authority for the proposition that the Confrontation Clause of the Sixth Amendment does, or should, apply to habeas corpus proceedings. Without more, it is clear to this Court that (1) this habeas corpus proceeding is civil, (2) the Confrontation Clause of the Sixth Amendment applies to criminal prosecutions, and (3) therefore, the Confrontation Clause is inapplicable to this civil habeas corpus proceeding. Accordingly, statements by unavailable declarants will not be barred here on the basis of the Confrontation Clause of the Sixth Amendment. B. Hearsay

Petitioner also maintains that statements by unavailable declarants are inadmissible pursuant to the hearsay bar of Fed. R. Evid. 802. Petitioner claims that such statements are not subject to any hearsay exceptions. Respondents, however, argue (1) that Petitioner adopted these statements as his own during state court proceedings and therefore they are not hearsay under Fed. R. Evid. 801(d)(2)(B), and (2) that these statements are admissible as business records under Fed. R. Evid. 803(6) and public records under Fed. R. Evid. 803(8). 1. Adoptive Admission

When Petitioner initially pled guilty in state court, he, and the other defendants, refused to make a statement to the court to form a factual basis for the plea. Instead, they choose to accept the statements of CO Warren and others, after having the opportunity to review the statements. As such, those statements became the factual basis for Petitioner's guilty plea. Respondent claims that the hearsay bar is inapplicable because the statements are adoptive admissions under Fed. R. Evid. 801(d)(2)(B). This Court agrees. Rule 801(d)(2)(B) states: "A statement is not hearsay if . . . the statement is offered against a party and is . . . a statement of which the party has manifested an adoption or belief in its truth." The critical inquiry for our purposes is whether Petitioner manifested an adoption or belief in the statements of CO Warren, and others, that formed the factual basis of his guilty plea. According to the Advisory Committee's Notes to Rule 801, an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so. . . . Adoption or acquiescence may be manifested in any appropriate -6Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 6 of 28

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manner. . . . The decision in each case calls for an evaluation in terms of probable human behavior. See also United States v. Monks, 774 F.2d 945, 950 (9th Cir.1985) (before letting in evidence

3 as an adoptive admission, "the district court must first find that sufficient foundational facts 4 have been introduced for the jury reasonably to conclude that the defendant did actually hear, 5 understand and accede to the statement"). Here, the evidence reveals that Petitioner continually 6 manifested his adoption of the statements contained in both the grand jury transcript and the 897 page packet of police reports, and that the sentencing court went to great lengths to ensure 8 Petitioner reviewed, understood, and acquiesced to all statements contained therein. 9 The record reveals: (1) Petitioner filed a motion with the court to have the grand jury 10 transcript and 89-page packet constitute the factual basis for his guilty plea, and attached such 11 documents to his motion; (2) Petitioner signed his initials on the motion to have these 12 documents form the factual basis of his guilty plea; (3) Petitioner confirmed to the court that he 13 initialed the motion; (4) Petitioner avowed to the court that he had reviewed all the documents 14 and knew their contents; (5) Petitioner's attorney confirmed that Petitioner had reviewed the 15 documents in his presence; and (6) the court repeatedly confirmed with Petitioner his intent to 16 have these documents serve as the factual basis of his guilty plea. The court posed the 17 following question to Petitioner at his change of plea hearing: 18 19 20 21 MR. JARAMILLO: Yes. 22 [Doc. No. 82 at A, 18-19]. Accordingly, based on the record before this Court, it is clear that 23 Petitioner reviewed, understood, and acceded to the statements in the documents at issue, 24 thereby adopting those statements as his own for purposes of Rule 801(d)(2)(B). It bears noting 25 that adoptive admissions have been routinely found through a nod and even through silence, 26 whereas here Petitioner repeatedly and expressly identified the documents as the factual basis 27 for his guilty plea. As such, the grand jury transcript and the 89-page packet of police reports 28 -7Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 7 of 28

THE COURT: Mr. Jaramillo, it it your intention that you want me to consider for a factual basis the information that is contained in this packet, which is labeled ­ which starts off first with the transcript of the grand jury proceedings and then goes on to list a number of police reports and autopsy reports, and there are a total of eighty-nine pages? Is that what you want me to accept for a factual basis?

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are not hearsay, and are admissible provided their admission otherwise complies with the Federal Rules of Evidence. 2. Business and Public Records Exceptions

Having found that the documents are adopted admissions and therefore non-hearsay, the Court does not reach whether they are concurrently non-hearsay under Rule 803(6),(8). II. Respondents' Motion in Limine Re: Admissibility of Evidence of Flores' Prior Violent Acts Respondents move the Court for a pre-hearing ruling regarding the admissibility of evidence of two prior acts of violence by Lino Flores: (1) his convictions for attempted seconddegree murder and attempted sexual assault; and (2) his convictions for dangerous or deadly assault by a prisoner and possession of a deadly weapon by a prisoner. To the extent Respondents assert that evidence of Flores' convictions for attempted second-degree murder and attempted sexual assault are admissible under Fed. R. Evid. 404(b) because such evidence tends to refute a self-defense claim, the Court is unpersuaded. Rule 404(b) states, in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b). Respondents appear to argue that Petitioner's actual innocence claim is

19 compromised by the countervailing weight of Flores' convictions for attempted second-degree 20 murder and attempted sexual assault. However, the belief that Flores's violent past decreases 21 the likelihood that both Petitioner and Flores acted in self-defense here is the very inference 22 Rule 404(b) seeks to protect against. Accordingly, evidence of Flores' convictions for attempted 23 second-degree murder and attempted sexual assault are not admissible to counteract Petitioner's 24 claim of self-defense. 25 Further, Rule 403 mandates that evidence of Flores' convictions for attempted second26 degree murder and attempted sexual assault must be excluded. Again, the narrow purpose of 27 the pending evidentiary hearing is for this Court to determine the credibility of any new 28 -8Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 8 of 28

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evidence that tends to establish Petitioner's actual innocence. Here, the probative value of Flores' convictions for attempted second-degree murder and attempted sexual assault are substantially outweighed by concerns of efficiency, primarily because the probative value is extremely low. These prior violent acts reveal very little, if anything, about what occurred the day of Abeyta's death, in part because Flores' convictions for attempted second-degree murder and attempted sexual assault are not sufficiently linked in any reasonable way to the conduct of Petitioner. However, the Court finds that Flores' convictions for dangerous or deadly assault by a prisoner and possession of a deadly weapon are admissible under both Rule 404(b) and Rule 403. The facts and circumstances underlying these convictions are very similar to those at issue in the instant case. Significantly, (1) both Flores' assault conviction (for assaulting fellow inmate Jose Robles) and Abeyta's death occurred in exercise pen 3 of Cell Block 6; (2) Flores restrained Robles by the neck while another inmate stabbed Robles repeatedly, and Flores also allegedly placed Abeyta in a headlock while Petitioner stabbed Abeyta; (3) in both cases, the person stabbing the victim threw the shank on top of a nearby roof; (4) in both cases, the correctional officer on duty ordered the stabbing to stop, and in both cases the stabbing continued until other officers could respond by physically entering the exercise pen; and (5) in both cases there is evidence tending to support the belief that a shank was introduced into the exercise pen through a cell window adjoining the pen. The similarities between the attacks on Robles and Abeyta satisfy enumerated exceptions to Rule 404(b), including opportunity, intent, and plan, and therefore Flores' convictions for dangerous or deadly assault by a prisoner and possession of a deadly weapon are not barred by Rule 404(b). Additionally, Rule 403 mandates admission into evidence of these convictions because they are highly probative of Petitioner's ability to plan the murder of Abeyta, and therefore also of the credibility of his self-defense claim. Accordingly, evidence of Flores' convictions for attempted second-degree murder and attempted sexual assault are not relevant, except to the extent Respondents offer such evidence for purposes of impeachment pursuant to Rule 609, as addressed below. However, Flores' -9Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 9 of 28

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convictions for dangerous or deadly assault by a prisoner and possession of a deadly weapon are relevant and admissible under Rule 404(b), and may be introduced into evidence here provided admission otherwise complies with the Federal Rules of Evidence. III. Respondents' Motion in Limine Re: Admissibility of Dr. Keen's Expert Opinion Testimony Respondents move the Court for a pre-hearing ruling on the admissibility of the expert opinion testimony of Dr. Philip Keen. Dr. Keen currently serves as the Medical Examiner for Maricopa and Yavapai counties, and Respondents seek to introduce his opinion testimony formed after a review of the victim's autopsy report. The autopsy report was prepared by Dr. Thomas Henry, the former Medical Examiner for Pinal County, on January 3, 1984. Dr. Henry is expected to testify as well. The Court finds that Dr. Keen may offer expert opinion testimony based on his knowledge, experience and review of the record, provided a proper foundation is laid and such testimony otherwise complies with the Federal Rules of Evidence. Petitioner may object to any perceived improprieties in Dr. Keen's testimony at the evidentiary hearing. IV. Respondents' Motion in Limine Re: Admissibility of Weapons Evidence Respondents move the Court for a pre-hearing ruling on the admissibility of evidence of weapons recovered from the prison cells of Petitioner and Flores between 1981 and 1994. Respondents assert evidence that Petitioner and Flores were found to be in possession of various weapons tends to refute the argument that Abeyta brought the shank into the exercise pen, and that Abeyta was the aggressor. Specifically, Respondents seek to introduce at the evidentiary hearing that the following weapons were found in the possession of Petitioner and Flores while incarcerated: (1) a nine inch long shank made of flat steel was found in Petitioner's cell on May 15, 1981; (2) a loaded zip gun was found in Petitioner's cell on August 7, 1982; (3) a four inch long homemade knife made of a broken razor blade and plastic was found in Flores' cell on February 22, 1982; (4) a six inch long ice-pick shaped shank was found in Flores' cell on May 13, 1983; (5) a five and a half inch long dart was found in Flores' cell on September 8, 1985;

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(6) two homemade blow guns made out of cardboard were found in Flores' cell on March 7, 1988; and (7) a shank was found in Flores' cell in 1994. [Doc. No. 73 at 2-3]. The Court finds that evidence of weapons recovered from the prison cells of Petitioner and Flores between 1981 and 1994 is admissible under Fed. R. Evid. 403 and 404(b). Here, evidence of Petitioner and Flores' possession of weapons while incarcerated is highly probative of their opportunity to procure a weapon, in this case a shank. Further, there is sufficient evidence that Petitioner and Flores actually possessed these weapons, in the form of admissions by both Petitioner and Flores, and as documented in prison records. See Huddleston v. United States, 485 U.S. 681, 689 (1988) ("In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor."). Petitioner and Flores' history of possessing weapons is also probative of Petitioner's self-defense claim as the possession of weapons tends to refute Petitioner's claim that Abeyta was the aggressor, and it follows, of Petitioner's claim that Abeyta introduced the shank into the exercise pen. Therefore, such evidence is relevant and falls within the opportunity exception of Rule 404(b), and is admissible provided it otherwise complies with the Federal Rules of Evidence. Accordingly, evidence of Petitioner and Flores' prior weapons possession is relevant and admissible under Rule 404(b). Such evidence may be introduced at the pending evidentiary hearing provided it otherwise complies with the Federal Rules of Evidence.

V.

Respondents' Motion in Limine Re: Admissibility of Lawsuit Evidence and Motion to Admit Exhibits Respondents move the Court for a pre-hearing ruling on the admissibility of (1) a lawsuit

filed by Wayne A. Graham on August 26, 1982, against Joseph Savalas, the case agent who investigated Petitioner, Flores and Moreno for murdering Abeyta in 1984, and (2) Lino Flores' state post-conviction relief pleadings and federal habeas actions, which he, like Petitioner, factually predicated upon Graham's affidavit, and in which Flores advanced the same selfdefense claim as Petitioner. Further, Respondents seek to admit into evidence at the evidentiary - 11 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 11 of 28

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hearing photocopies of nine various pleadings filed in the aforementioned lawsuits. Respondents assert that the foregoing evidence is admissible as impeachment evidence to show bias, as both Flores and Graham are expected to testify on Petitioner's behalf. Petitioner asserts that Respondents' motion is premature because it is not known for certain whether (1) Flores and Graham will testify at the evidentiary hearing, and (2) assuming they do testify, it is unclear what exactly they will say. The Court is not persuaded by Petitioner's assertions. Rather, this Court has issued Writs of Habeas Corpus Ad Testificandum for both Flores and Graham, and it is fully expected that they will testify consistently with their depositions and prior statements that Petitioner acted in self-defense. It is clear that Flores, as an original co-defendant, has a vested interest in the outcome of the pending evidentiary hearing, as a favorable result for Petitioner also provides fertile ground for Flores to petition for relief. Such a vested interest is a proper issue on which to explore Flores' possible bias in the testimony he is expected to offer. See Fed. R. Evid. 607(a cross examiner is entitled to ask questions that will show sources of bias, and extrinsic evidence of bias may be admissible on non-collateral matters). Accordingly, Respondents may question Flores about his past, current, and future legal challenges to his first-degree murder guilty plea in order to establish bias, and may move at the appropriate time to introduce extrinsic evidence of Flores' legal challenges arising out of his guilty plea for the death of Abeyta. Graham filed a lawsuit against agents of the Arizona Department of Corrections, including Savalas, on August 26, 1982, pursuant to 42 U.S.C. § 1983. Respondents assert that evidence of this lawsuit is relevant to prove Graham's bias against Savalas and A.D.O.C., and also to refute Graham's claim that an unnamed investigator interviewed him soon after Abeyta's death. The Court finds that Graham's prior lawsuit against A.D.O.C., which specifically named Savalas, is proper grounds to establish bias. It is reasonable to infer animus by Graham against Savalas and A.D.O.C. through the filing of this lawsuit, and therefore evidence of the lawsuit is relevant to Graham's credibility. Additionally, evidence of the lawsuit is admissible to attack the credibility of Graham's assertion that an unnamed investigator interviewed him soon after Abeyta's death because (1) Savalas has stated that he was solely responsible for interviewing - 12 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 12 of 28

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all potential witnesses to Abeyta's death, and (2) it is reasonable to assume that Graham knew Savalas because he had specifically identified him as a defendant in a lawsuit less than two years before. Therefore, Graham's claim that he was interviewed by an unnamed investigator is directly challenged by his lawsuit against Savalas because such suit reasonably establishes that Graham knew who Savalas was, and that Graham could have identified him if in fact Savalas had interviewed Graham. Therefore, Respondents may question Graham about his prior lawsuit against Savalas in order to establish bias, and may move at the appropriate time to introduce extrinsic evidence of Graham's lawsuit. VI. Respondents' Motion in Limine Re: Petitioner's Waiver of Work Product Privilege and Motion for Discovery Respondents move the Court for a pre-hearing ruling regarding whether Petitioner has waived his work product privilege by confronting Savalas and former Arizona Department of Corrections Lieutenant Michael Baugher at their depositions with statements that they made to the Federal Public Defender's investigators. Further, Respondents request a Court Order requiring Petitioner to disclose any and all statements made to defense investigators that Petitioner intends to use as impeachment material at the pending evidentiary hearing. As a preliminary matter, the Court notes that impeachment evidence is subject to Rule 403. The parties have not detailed the nature of the alleged impeachment evidence at issue, and therefore, the Court is not in a position to gauge its ultimate admissibility. However, the parties are again reminded of the narrow scope of the pending evidentiary hearing, and testimony on topics deemed to be collateral by this Court will not be allowed. It follows that impeachment on collateral topics will be greeted similarly. Respondents allege that Petitioner has waived the work product privilege, in regards to statements made by Savalas and Baugher to Petitioner's investigators, by introducing some of those statements during their depositions for purposes of establishing a record of inconsistent statements to be used as impeachment evidence at the pending evidentiary hearing. The work product privilege is well established in the law, and protects the work product of attorneys created in anticipation of litigation, including that work generated through interviews, - 13 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 13 of 28

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statements, memoranda, correspondence, briefs, and mental impressions. See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947). The privilege is not absolute however, and may be waived by its holder. See United States v. Nobles, 422 U.S. 225, 239 (1975). In Nobles, the Supreme Court held that defense counsel had waived the work product privilege when he used an investigative report in his cross-examination of certain prosecution witnesses. Employing Nobles, the Ninth Circuit in United States v. Salsedo, 607 F.2d 318 (9th Cir. 1979), reached a similar holding when it found that a defense counsel's reference to work product in his crossexaminations of government witnesses constituted a waiver of any work product privilege. Here, the Court finds that Petitioner's use during deposition of prior statements made by both Savalas and Baugher to Federal Public Defender's investigators effectively waived any work product privilege as to any notes or memoranda memorializing statements made during their interviews with investigators. See Nobles, 422 U.S. 225; Salsedo, 607 F.2d 318. Accordingly, Petitioner shall disclose all notes and memoranda (to the extent they will be used for impeachment purposes) memorializing the interviews of Savalas and Baugher to Respondents no later than 5:00 p.m. on August 11, 2005.

VII.

Respondents' Motion in Limine Re: Petitioner's Prior Violent Acts Respondents move the Court for a pre-hearing ruling regarding the admissibility of three

prior violent acts by Petitioner. Specifically, Respondents seek to introduce into evidence at the pending evidentiary hearing that (1) Petitioner was previously convicted of armed robbery, (2) Petitioner kicked ADOC Officer Miller in the head on June 1, 1982, and (3) Petitioner assaulted ADOC Lieutenant Coonts on May 30, 1983. Respondents contend that such prior acts are admissible under Fed. R. Evid 403, 404(b) as they tend to reveal that Petitioner's murder of Abeyta was premeditated and intentional. This Court disagrees. Petitioner's prior violent acts are not logically related to the death of Abeyta. The belief that Petitioner's prior violent acts make it less likely that he acted in self-defense in killing Abeyta is simply too attenuated. There is little to nothing about Petitioner's armed robbery conviction and assaults on ADOC personnel that shed light on his possible motivations or intent - 14 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 14 of 28

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in killing Abeyta. As such, the probative value of evidence of Petitioner's prior violent acts is substantially outweighed by concerns of prejudice and efficiency. Therefore, Rule 403 mandates its exclusion. Accordingly, evidence of Petitioner's prior violent acts are not relevant, except to the extent Respondents offer such evidence for purposes of impeachment pursuant to Rule 609, as addressed below. However, if Respondents can logically connect Petitioner's prior violent acts to the death of Abeyta, to this Court's satisfaction, such evidence may be properly admissible at the evidentiary hearing. VIII. Respondents' Motion in Limine Re: Admissibility of Evidence of Moreno's Prior Violent Act and Possession of Shanks Respondents move the Court for a pre-hearing ruling regarding the admissibility of Moreno's prior act of violence and possession of shanks. Specifically, Respondents seek to admit (1) that Moreno was previously convicted of first-degree murder, and (2) that prison officials twice found homemade shanks in Moreno's prison cell, in 1981 and 1982. Respondents contend that such prior acts are admissible under Fed. R. Evid 403, 404(b) as they tend to reveal that Petitioner's murder of Abeyta was premeditated and intentional. Moreno's prior conviction of first-degree murder reveals very little about the facts and circumstances of Abeyta's death. The Court finds that evidence of this conviction is not relevant to the facts and circumstances of Abeyta's death under Rule 403, nor is it subject to an exception to Rule 404(b). Although Respondent's allege, again, that such evidence is indicative of Petitioner's intent, the Court is, again, unpersuaded. The narrow scope of the Court's inquiry at the pending hearing is not advanced by the admission of Moreno's prior conviction for firstdegree murder. However, similarly to the Court's ruling on the admission of Petitioner and Flores' prior weapons possession, the Court finds that evidence of Moreno's prior possession of weapons is admissible as relevant evidence under Rule 403, and is subject to the opportunity exception to Rule 404(b). Therefore, evidence that Moreno was twice found to possess shanks is probative

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of his ability to procure weapons while incarcerated, and also tends to refute Petitioner's claim of self-defense. Accordingly, evidence of Moreno's prior conviction for first-degree murder is not admissible, except to the extent Respondents offer such evidence for purposes of impeachment pursuant to Rule 609, as addressed below. However, evidence of Moreno's prior possession of weapons while incarcerated is relevant and subject to the opportunity exception of Rule 404(b). Therefore, evidence of his prior possession of weapons is admissible, provided it otherwise complies with the Federal Rules of Evidence. IX. Respondents' Motion in Limine Re: Testimony Regarding Visitation Area of Cellblock 6 Respondents move the Court for a pre-hearing ruling precluding Petitioner from introducing testimony regarding the visitation area of Cell Block 6. Respondents assert that they have reason to believe Petitioner will attempt to elicit testimony at the pending evidentiary hearing regarding the visitation area of Cell Block 6, including its dimensions, number of guards, and the level of access between inmates and visitors. Respondents claim that such testimony is not relevant because the visitation area was not the scene of the murder, and bears no foreseeable relevance to Petitioner's case. However, Petitioner asserts that he has no present intention to elicit such testimony at the evidentiary hearing, but that a pre-hearing ruling preventing admission of such testimony is premature. The Court agrees that a blanket refusal to allow testimony regarding the visitation area is premature. Any objections to the admission of such evidence will be appropriate when evidence is actually offered, and such evidence may be admissible provided Petitioner establishes relevance, foundation, and otherwise complies with the Federal Rules of Evidence. X. Respondents' Motion in Limine Re: Applicability of Attorney-Client Privilege to Petitioner's Statements to Larry Joseph Prince Respondents move the Court for a pre-hearing ruling allowing Respondents to question Larry Joseph Prince at the pending evidentiary hearing about statements that Petitioner made to him about the Abeyta murder. Larry Joseph Prince served as an inmate legal assistant - 16 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 16 of 28

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between 1989 and 1997, and, in addition to providing legal assistance to Petitioner, Prince also drafted Wayne Graham's affidavit on August 19, 1996, which detailed that Graham observed Abeyta attack Petitioner and that Petitioner acted in self-defense. Respondents claim that the attorney-client privilege does not extend to conversations between "jailhouse lawyers" and defendants. Petitioner asserts that it is unclear whether the attorney-client privilege exists, and that even if it does not exist, there may be a due process prohibition against using the content of discussions that took place between Petitioner and Prince. The Court finds that there is no attorney-client privilege protecting communications between Petitioner and his "jailhouse lawyer" Larry Joseph Prince. First, Prince is not an attorney, and therefore the privilege cannot apply. Second, Federal courts look to state law to determine the applicability of evidentiary privileges. Fed. R. Evid. 501. Arizona courts have found that there is no attorney-client privilege between jailhouse lawyers and defendants. See, e.g., State v. Rivera, 168 Ariz. 102, 104, 811 P.2d 354, 356 (Ct. App. 1990) ("There are no privileged communications between a defendant and his 'jailhouse lawyer.'"); Hunt v. Maricopa County Employee Merit System Comm'n, 127 Ariz. 259, 619 P.2d 1036 (1980) (holding that a lay representative is not an attorney under Arizona's privileged communications statute). Third, communications made in the presence of a third party are not privileged. Here, the record indicates that a prison guard was present for every meeting between Petitioner and Prince, and therefore, there can be no attorney-client privilege protecting their communications. See, e.g., State v. Moody, 208 Ariz. 424, 448, 94 P.3d 1119, 1143 (2004); State v. Sucharew, 205 Ariz. 16, 22, 66 P.3d 59, 65 (Ct. App. 2003). For the foregoing reasons, no attorney-client privilege exists between Prince and Petitioner. To the extent Petitioner argues that there may be a due process prohibition against using the content of discussions that took place between Petitioner and Prince, the Court is not convinced. In support of his argument, Petitioner relies upon State v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992). There, the Arizona Supreme Court found that it would be fundamentally unfair to introduce communications between a defendant and his jailhouse lawyer. However, in Melendez, the defendant was induced to secure representation through - 17 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 17 of 28

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formal institutional procedures for the purpose of defending against prison disciplinary proceedings, and the state sought to use communications arising out of the representation to aid in defendant's prosecution. The Supreme Court was chiefly concerned that the prosecution was turning the prison's appointment of representation into a trap. Nevertheless, the concerns present in Melendez simply are not present in the instant case, in part because Petitioner sought out Prince to assist him in post-conviction relief proceedings rather than in defense of criminal prosecution. Therefore, Melendez is inapplicable to those communications between Petitioner and Prince. See State v. Foster, 199 Ariz. 39, 42, 13 P.3d 781, 784 (Ct. App. 2000) (finding that where the state does not induce a defendant to seek representation, the concerns of Melendez are not present). Accordingly, Respondents may question Prince regarding statements Petitioner made to him during the course of Prince's representation.

XI.

Respondents' Motion in Limine Re: Admission of David M. Farley's Report Pursuant to Federal Rule of Evidence 803(5) Respondents move the Court for a pre-hearing ruling regarding A.D.O.C. Sergeant David

M. Farley's report, which details the discovery of a shank in Petitioner's cell on May 15, 1981. Specifically, Respondents seek permission to have Sergeant Farley read his report into evidence pursuant to Fed. R. Evid. 803(5) because he has no independent recollection of the events contained therein. The Court previously ruled that evidence of Petitioner and Flores' prior possession of weapons is admissible pursuant to Fed. R. Evid. 403 and 404(b). See IV, infra. As such, the Court now finds that Sergeant Farley's report may be read into the record by Farley pursuant to Rule 803(5); however, only that portion of the report that he personally authored may be read. Rule 803(5) states: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge - 18 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 18 of 28

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correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Here, the Court finds that the requirements of Rule 803(5) have been met. Despite this ruling,

3 the Court anticipates, and expects, the parties to reach an agreement regarding the admission 4 of the contents of Farley's report that favors the interests of economy and efficiency. 5 XII. 6 Barry McNaughten 7 Respondents seek to preclude Petitioner from introducing at the pending evidentiary 8 hearing any discovery related motions filed in his original state court proceedings, as well as 9 any other inadmissible hearsay and character evidence concerning the prosecutor in the original 10 state court proceedings, Deputy Pinal County Attorney Barry McNaughten. During the state 11 court proceedings, Petitioner filed several discovery motions seeking to obtain all relevant 12 discovery in his case from McNaughten. Respondents argue that such discovery motions are 13 not relevant here because they add nothing to Petitioner's ability to prove actual innocence. 14 Petitioner, however, seems to argue that McNaughten may have improperly withheld evidence 15 of Wayne Graham's existence from Petitioner, and that this conduct is indicia of Petitioner's 16 actual innocence. The Court disagrees. 17 Assuming, for the moment, that evidence was improperly withheld in Petitioner's original 18 state court proceedings, such conduct, while unfortunate, does not add anything to the 19 discussion of what actually occurred the day of Abeyta's death. This Court will not entertain 20 hollow theories regarding supposed motivations of the prosecutor, rather, the Court seeks to 21 determine the credibility of new evidence that tends to prove Petitioner's actual innocence. 22 There is nothing about the course of discovery in the state court proceedings nor the conduct 23 of the prosecutor that materially adds to Petitioner's claim of actual innocence. The Court is 24 very aware that Petitioner's Brady claim is the underlying force behind his habeas corpus 25 petition; however, in order to reach the merits of Petitioner's Brady claim, he must first prove 26 that he is actually innocent of the charged crime in order to bypass his procedural default 27 pursuant to Schlup v. Delo, 513 U.S. 298 (1995). The Court finds that the parties' conduct 28 - 19 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 19 of 28

Respondents' Motion in Limine Re: Former Deputy Pinal County Attorney

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during discovery is simply not relevant to Petitioner's claim of actual innocence. Accordingly, Respondents motion must be granted. XIII. Respondents' Motion in Limine Re: Impeachment of Lino Flores with his Felony Convictions Respondents move the Court for a pre-hearing ruling permitting impeachment of Lino Flores with his prior felony convictions pursuant to Fed. R. Evid. 609. Specifically,

Respondents seek to impeach Flores with four prior felony convictions: (1) attempted sexual assault in 1979; (2) attempted second-degree murder in 1979; (3) prisoner in possession of a deadly weapon in 1982; and (4) deadly or dangerous assault by a prisoner in 1982. Flores is still serving his prison term on the deadly or dangerous assault by a prisoner conviction, but all other sentencing terms were completed during or before 1994. Federal Rule of Evidence 609(a)(1) provides that a witness other than the accused may be impeached by prior convictions where the crime was punishable by death or imprisonment in excess of one year, and the probative value of these convictions is not substantially outweighed by their prejudicial effect. However, Rule 609(b) provides that evidence of a conviction is not admissible where "more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Here, the probative value of Flores' prior convictions is that they directly challenge the credibility of any testimony he may provide. The Court finds the probative value of these convictions is not substantially outweighed by their prejudicial effect, and therefore such convictions are admissible as impeachment evidence pursuant to Rule 609(a)(1). However, the presumptive time limit of Rule 609(b) operates to bar admission of all but the fourth conviction here. The Court finds that the probative value of Flores' first three convictions, as listed above, does not substantially outweigh their prejudicial effect. Because Flores' credibility is challengeable on the grounds of his fourth conviction, his relationship with - 20 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 20 of 28

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Petitioner, and his vested interest in the outcome of the evidentiary hearing, it follows that additional evidence of antiquated felony convictions fails to add considerably to the impeachment of his testimony. Therefore, keeping in mind the presumptive time limitation of 609(b), Flores' first three felony convictions, as listed above, are not admissible because (1) more than ten years has elapsed, and (2) their probative value does not substantially outweigh their prejudicial effect. Accordingly, Respondents may impeach Flores only with his felony conviction for deadly or dangerous assault by a prisoner in 1982. However, Respondents may only admit the fact of this prior conviction, and any digression into the facts and underlying history of the conviction will not be tolerated. The Court is mindful that Flores' credibility, should he have testified at a trial in 1984, would not have been subject to the constraints of Rule 609(b) currently facing this Court. As such, to the extent Respondents feel so compelled, they may advance to this Court an argument for the admission of Flores' now time-barred felony convictions on the basis that they would have been properly considered by a jury if this matter had gone to trial in 1984. Respondents, in their discretion, may do so for each inmate witness, where applicable. XIV. Respondents' Motion in Limine Re: Impeachment of Petitioner with his Felony Convictions Respondents move the Court for a pre-hearing ruling permitting impeachment of Petitioner with his prior felony convictions pursuant to Fed. R. Evid. 609. Specifically, Respondents seek to impeach Petitioner with three prior felony convictions: (1) grand theft in 1978; (2) armed robbery in 1979; and (3) committing a felony while on bail or own recognizance on another charge in 1979. Federal Rule of Evidence 609(a)(1) provides, in relevant part, that "evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Notably, the time limit of Rule 609(b) is the same for witnesses and the accused.

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Here, Petitioner's second and third felonies, as listed above, are within the presumptive 10 year time limits of 609(b) because he was paroled for the second felony on October 6, 2003 and the term for his third felony expired on October 6, 2004. Accordingly, the Court next turns to whether the probative value of admitting this evidence outweighs its prejudicial effect to Petitioner. The Court finds that the probative value of Petitioner's second and third felonies outweighs its prejudicial effect because they serve an important role in determining the credibility of Petitioner's testimony. Further, the prejudicial effect on Petitioner is minimal as there is no jury, and what prejudice exists is easily outweighed by the probative value of such impeachment evidence. However, Petitioner's first felony conviction is presumptively time-barred by Rule 609(b). As previously addressed, the probative value of evidence beyond the ten year mark must substantially outweigh the prejudicial effect in order to be admissible. Here, evidence of Petitioner's first felony conviction does not materially add to the impeachment of any testimony he may give both because of the date of the conviction and the admissibility of Petitioner's second and third felony convictions. Accordingly, the Court finds that Petitioner's credibility is appropriately challenged through the use of his second and third felony convictions as impeachment evidence; however, this Court finds that evidence of his first felony conviction is barred by Rule 609. Respondents may only admit the fact of these two prior convictions, and any digression into the facts and underlying history of the convictions will not be tolerated. XV. Respondents' Motion in Limine Re: Impeachment of Wayne Graham with his Felony Convictions Respondents move the Court for a pre-hearing ruling permitting impeachment of Wayne Graham with his prior felony convictions pursuant to Fed. R. Evid. 609. Specifically, Respondents seek to impeach Wayne Graham with eight prior felony convictions: (1) aggravated battery in 1972; (2) attempted armed robbery in 1974; (3) burglary in 1978; (4) burglary in 1979; (5) theft in 1981; (6) resisting arrest and aggravated assault in 1984; (7) second-degree burglary in 1985; and (8) aggravated assault and reckless endangerment in 1985. - 22 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 22 of 28

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The parties agree that Graham's convictions for aggravated assault and reckless endangerment in 1985, and his burglary conviction in 1985 are within the presumptive time limit of Fed. R. Evid. 609(b). The Court finds that Graham's convictions for aggravated assault and reckless endangerment in 1985, and his burglary conviction in 1985 are admissible under both Rule 403 and Rule 609. These convictions are relevant to Graham's credibility, and their probative value is not substantially outweighed by the resulting prejudicial effect. However, in considering the admissibility of Graham's other prior felony convictions, the Court must determine whether their probative value substantially outweighs the prejudicial effect. Fed. R. Evid. 609(b). Here, the Court finds that the probative value of Graham's presumptively time-barred felony convictions does not substantially outweigh the prejudicial effect. Significantly, Graham's testimony is already subject to impeachment by evidence of his convictions for aggravated assault and reckless endangerment in 1985, his burglary conviction in 1985, and his prior lawsuit against A.D.O.C. The introduction of Graham's remaining felony convictions would do little to affect the credibility of his testimony as the felony convictions are stale and do not directly address his propensity for truthfulness because they do not involve dishonesty or false statements. See Fed. R. Evid. 609(a)(2). Therefore, the Court finds that Graham's presumptively time-barred felony convictions are not admissible under Rule 609. Accordingly, Graham's convictions for aggravated assault and reckless endangerment in 1985, and his burglary conviction in 1985 are admissible as impeachment evidence pursuant to Rule 403 and Rule 609. However, Graham's presumptively time-barred felony convictions are not admissible under Rule 609. Respondents may only admit the fact of these two prior convictions, and any digression into the facts and underlying history of the convictions will not be tolerated. XVI. Respondents' Motion in Limine Re: Impeachment of Larry Joseph Prince with his Felony Conviction Respondents move the Court for a pre-hearing ruling permitting impeachment of Larry Joseph Prince with his prior felony convictions pursuant to Fed. R. Evid. 609. Specifically, - 23 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 23 of 28

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Respondents seek to impeach Larry Joseph Prince with his conviction for first-degree murder in 1986. There is no dispute that this conviction is not presumptively time-barred by Rule 609(b) because he has not yet completed his sentence for this conviction. Further, the Court finds that evidence of this conviction is relevant to Prince's credibility and meets the Rule 403 test. Therefore, Respondents may impeach Prince with his conviction for first-degree murder, but may only admit the fact of the conviction, and any digression into the facts and underlying history of the conviction will not be tolerated. /// /// ///

XVII.

Respondents' Motion in Limine Re: Impeachment of Patrick Russell Wayne with his Felony Convictions Respondents move the Court for a pre-hearing ruling permitting impeachment of Patrick

Russell Wayne with his prior felony convictions pursuant to Fed. R. Evid. 609. Specifically, Respondents seek to impeach Patrick Russell Wayne with six prior felony convictions: four counts of armed robbery in four separate Maricopa County Superior Court cases in 1975, one count of felon in possession of a firearm in 1991, and one count of bank robbery in 2004. Here, Wayne's convictions for possession of a firearm and for bank robbery are not presumptively time-barred by Rule 609(b) because Wayne was paroled for the firearm conviction in 2004, and is still pending sentencing on his conviction for bank robbery. The Court finds that both of these convictions are admissible to impeach Wayne as they are relevant to his credibility and meet the test of Rule 403. However, the Court finds that the probative value of Wayne's four armed robbery convictions does not substantially outweigh their prejudicial effect. See Fed. R. Evid. 609(b). The fact that these four convictions occurred in 1975 and do not directly involve dishonesty or false statements decreases the probative value of these convictions as to Wayne's credibility. Significantly, the addition of Wayne's four

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counts of armed robbery do not materially add to the impeachment of his credibility through admission of his convictions for felon in possession of a firearm and bank robbery. Therefore, Respondents may impeach Wayne with his convictions for felon in possession of a firearm and bank robbery, but Respondents may not use Wayne's four convictions for armed robbery. Respondents may only admit the fact of these two prior convictions, and any digression into the facts and underlying history of the convictions will not be tolerated. XVIII. Respondents' Motion to Preclude Petitioner's New Witnesses Respondents move the Court for a pre-hearing ruling precluding Petitioner from calling as impeachment witnesses Federal Public Defender investigators Julie Williams, John Castro, Lisa Eager, and Jeremy Voas. Respondents assert that Petitioner untimely noticed these investigators as potential witnesses, and effectively denied Respondents an opportunity to depose any of them. The Court disagrees. Petitioner's impeachment witnesses would testify only if Respondents' witnesses testify in a manner that gives rise to an opportunity to impeach by prior inconsistent statements. It is well settled that evidence offered solely for impeachment purposes regarding prior inconsistent statements does not have to be disclosed prior to trial. See Fed. R. Civ. P. 26(a)(1)(A) & (3); Fed. R. Evid. 613(b). Accordingly, the Court finds that Petitioner's failure to disclose the identity of his potential impeachment witnesses before the deadline for depositions in this matter is immaterial. However, the Court notes that Petitioner's impeachment witnesses may only testify if the provisions of Fed. R. Evid. 613(b) have been met. XIX. Respondents' Motion Re: Barry McNaughten's Conflict with Scheduled Evidentiary Hearing Date Respondents' notice the Court in this motion that former Deputy Pinal County Attorney Barry McNaughten has a scheduling conflict with the pending evidentiary hearing, and that Respondents request that he be allowed to testify either before or after the dates of the hearing. Petitioner has no objection to McNaughten testifying on a date after the evidentiary hearing. The Court finds that former Deputy Pinal County Attorney Barry McNaughten may testify on a date after the evidentiary hearing due to scheduling conflicts. However, the Court, - 25 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 25 of 28

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after considering that evidence presented during the evidentiary hearing, may, in its discretion, make a determination regarding the necessity and relevance of McNaughten's expected testimony. The parties may address the Court regarding McNaughten's possible testimony at the conclusion of the scheduled evidentiary hearing, at which time the Court shall make a ruling as to whether McNaughten's testimony is necessary. If deemed necessary, the Court shall set a date and time for McNaughten's testimony. CONCLUSION After consideration of the parties' motions, the Court reached the following rulings for the reasons addressed above. No written motions for reconsideration of the rulings of this Court as set forth in this Order will be entertained; however, any requests for reconsideration may be raised orally at the status hearing currently set for August 11, 2005 at 9:00 a.m. Additionally, any unresolved concerns regarding admission of exhibits arising out of this Order may similarly be addressed at the status hearing. Further, the Court notes that while Respondents have sought numerous pre-hearing rulings regarding the admissibility of various pieces of evidence or certain lines of questioning, the presentation of the parties' cases at the evidentiary hearing will, of course, be governed by the Federal Rules of Evidence. As such, all rulings contained in this Order shall be tempered by any inability to properly present evidence or examine a witness in accordance with the Federal Rules of Evidence.

Accordingly, IT IS THEREFORE ORDERED Petitioner's Motion to Preclude Admission of Testimonial Hearsay Evidence [Doc. No. 67], is hereby DENIED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admissibility of Evidence of Flores' Prior Violent Acts [Doc. No. 70], is hereby GRANTED in part, and DENIED in part. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admissibility of Dr. Keen's Expert Opinion Testimony [Doc. No. 72], is hereby GRANTED.

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IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admissibility of Weapons Evidence [Doc. No. 73], is hereby GRANTED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admissibility of Lawsuit Evidence [Doc. No. 75-1], is hereby GRANTED. IT IS FURTHER ORDERED Respondents' Motion to Admit Exhibits [Doc. No. 75-2], is hereby DENIED as premature. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Petitioner's Waiver of Work Product Privilege [Doc. No. 90-1] and Motion for Discovery [Doc. No. 90-2], are hereby GRANTED. Petitioner shall disclose all notes and memoranda memorializing the interviews of Savalas and Baugher to Respondents no later than 5:00 p.m. on August 11, 2005. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Petitioner's Prior Violent Acts [Doc. No. 92], is hereby DENIED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admissibility of Evidence of Moreno's Prior Violent Act and Possession of Shanks [Doc. No. 93], is hereby GRANTED in part, and DENIED in part. IT IS FURTHER ORDERED Respondents' Motion to Admit Exhibits [Doc. No. 96], is hereby DENIED as moot. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Testimony Regarding Visitation Area of Cellblock 6 [Doc. No. 102], is hereby DENIED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Applicability of Attorney-Client Privilege to Petitioner's Statements to Larry Joe Prince [Doc. No. 103], is hereby GRANTED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Admission of David M. Farley's Report Pursuant to Federal Rule of Evidence 803(5) [Doc. No. 108], is hereby GRANTED. IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Former Deputy Pinal County Attorney Barry McNaughten [Doc. No. 109], is hereby GRANTED. - 27 Case 2:00-cv-00936-SMM Document 172 Filed 08/09/2005 Page 27 of 28

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IT IS FURTHER ORDERED Respondents' Motion in Limine Re: Impeachment of Lino Flores with his Felony Convictions [Doc. No. 111], is hereby GRANTED in