Free Appeal Document - District Court of Arizona - Arizona

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Patrick E. McGillicuddy Arizona Bar No. 6191 The Historic Metro Office Building 331 North First Avenue Suite 105 Phoenix, Arizona 85003 (602) 452-2915/602-790-6037 Fax: (602) 256-0574 E-mail: [email protected] Attorney for Petitioner James Lee Sueing UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAMES LEE SUEING ) ) Petitioner, ) ) vs. ) ) ) DORA B. SCHRIRO, ) ) ) Respondent ) ) ______________________________)

No: CIV 96-669 -PHX-JAT

Request for Certificate of Appealability And Memorandum in Support of Request

Habeas Petitioner James Lee Sueing (hereafter Sueing) hereby requests this Court to issue a Certificate of Appealability on both of the claims raised in his petition in order to appeal the dismissal of the proceedings under 28 U.S.C. Sec. 2254 to the United States Court of Appeals for the Ninth Circuit. The reasons for the request are stated in the attached Memorandum in Support.

I. Standard to apply

Pursuant to 28 U.S.C. 2853, this Court is authorized to issue a certificate of appealability. In Slack v. McDaniel 529 U.S. 473, 120 S.Ct.1595 (2000), the Supreme Court held that the right to appeal from a dismissal of a habeas corpus petition "is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. Sec. 2253(c)." (1994 ed., supp III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA's effective date. 529 U.S. at 478. Case 2:02-cv-02347-JAT Document 51 Filed 09/01/2005 Page 1 of 9

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In Slack, the Supreme Court stated that "when a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. In Slack, the Supreme Court relied on Barefoot v. Estelle 463 U.S. 880, 103 S. Ct. 3383 (1983) in fashioning a standard for the grant of a COA. In Barefoot, the Court established what a prisoner must show to obtain a "certificate of probable cause" the precursor to a COA. The standard established by the Court in Barefoot was a "substantial showing of the denial of a federal right." Barefoot v. Estelle 103 S. Ct. at 3383, cited in Slack v. McDaniel at 1602. A petitioner's right to appeal the district court's denial of a petition for a writ of habeas corpus is governed by the amended Sec. 2253 whether the habeas petition was filed pre or post AEDPA. Id. Sec. 2253(c) of the AEDPA states that a COA may issue only upon the "substantial showing of the denial of a constitutional right" Id. 1604. In Slack, the Court determined that it would give the meaning of the language of Sec. 2253 (c) the same meaning it gave that language in Barefoot. Id. 1603. Thus, a petitioner must make a substantial showing of the denial of a constitutional right, "a demonstration that, under Barefoot includes showing that reasonable jurists could debate whether (or for that matter, agree that ) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further. " (parenthesis in original) Slack, at 1604. In Slack, the Court delineated varying analytical standards to be used where the district court dismisses a claim within the habeas petition on procedural grounds or on the merits. When a claim is dismissed on the merits, "the showing required to satisfy Sec. 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. Where the district court dismisses a claim or claims on procedural grounds, the Court held that "when the district court denies a habeas petition on procedural grounds without reaching the -2Filed 09/01/2005

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prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted."Id. In Slack, the Supreme Court stated that there are two components to determine whether a COA should be issued when the petition is dismissed on procedural grounds. The first component is directed at the underlying constitutional claims and one directed at the district court's procedural holdings. Both showings must be made before a COA will issue. Id. Each component of the Sec. 2253 (c) showing is part of a threshold inquiry. Id. The district court may resolve the issue first whose answer is most apparent from the record, and the court may resolve procedural issues first. Id. In Beatty v. Stewart 303 F. 3d 975 (9th Cir. 2002) the Ninth Circuit stated that a COA is "granted on a claim by claim basis." 303 F. 3d at 983. The petitioner "must make a substantial showing of the denial of a constitutional right as to each issue he wishes to appeal.." Id. A substantial showing includes demonstrating that reasonable jurists would find the district court's assessment of the claim debatable or wrong. Id. Citing Slack v. McDaniel 120 S. Ct. at 1595. The Ninth Circuit, in Williams v. Woodford 384 F. 3d 567 (9th Cir 2004) described the threshold for the insurance of a COA as "relatively low ". Williams, 384 F. 3d at 583. The threshold is met if the petitioner's claims are debatable among reasonable jurists, another court could reach a different resolution or the questions are adequate to deserve encouragement to proceed further. Id The Williams court stated that, in a capital case, the nature of the penalty, while not dispositive, is a proper consideration in determining whether to issue the COA. Id. Doubts about whether the COA should issue should be resolved in the habeas petitioner's favor. Id. It should be noted that the petitioner need not demonstrate that he will prevail on the merits of the appeal in order to obtain a COA. Barefoot v. Estelle 463 U.S. 880, 103 S. Ct. 3383, fn 4. -3Filed 09/01/2005

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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 -4Filed 09/01/2005 Sueing argued that the jury instruction given at his trial violated the United States Constitution because it allowed a conviction on a standard of less than proof beyond a reasonable doubt. (See Sueing's Supplemental Reply, p. 34, et. seq.) Sueing submits that this issue is of sufficient magnitude, and that the petitioner raises a substantially sufficient argument that, under the relatively low standard for issuance of a COA, the Court should issue the certificate. Initially, as argued before the Magistrate and this court, Justice Ginsburg's concurring opinion in Victor v. Nebraska 511 U.S.1, 26 (2003), was a concurrence. Thus, the opinion was not "clearly established federal law" because it was not a holding of a Supreme Court decision. Williams v. Taylor 529 U.S. 362, 412 (2000). The petitioner submits that, because Justice Ginsburg's concurrence is not clearly established federal law, it cannot form the basis for a finding that the reasonable doubt instruction given in Sueing's trial passed constitutional muster. The petitioner submits that In re Winship 398 U.S. 358, 90 S. Ct. 1068 (1970), is the controlling legal principle that guilt must be established beyond a reasonable doubt. The instruction to the jury is the vehicle which conveys that principle to the jury. Petitioner cited Cage v. Louisiana 498 U.S. 39, 111 S. Ct. 328 for the proposition that a jury instruction may be unconstitutional because it requires too high of a threshold for finding reasonable doubt, holding the defendant to a higher standard of demonstrating reasonable doubt than is necessary. Conversely, a jury instruction may require too little, allowing a conviction on less than the constitutionally required beyond a reasonable doubt standard. The reasonable doubt instruction given in Sueing's trial was unconstitutional because it allowed conviction on less than proof beyond a reasonable doubt. The petitioner seeks a COA on both claims filed in his amended petition. As required by Beaty, supra, he will address each claim individually. Claim 1

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The Court, in denying the petition, cited to several Arizona cases which have upheld, in the Court's view ,on federal constitutional grounds, the instruction given in Sueing's trial. However, in State v. Turrentine 152 Ariz. 61, 730 P. 2d 238 (Ariz. App. 1986) the Arizona Court of Appeals commented that the clear and convincing standard of proof was that which produced in the jury a "firm belief or conviction" as to the issue sought to be proved. Moreover, the Arizona case relied upon by the Court to deny relief on this claim, State v. Portillo 182 Ariz. 592, 898 P. 2d 970 (1995) stated that the jury instruction was one of "state law." 898 P. 2d at 975. Because the issue of whether the reasonable doubt jury instruction has not been based on a holding of the Supreme Court, and also that Arizona case law on which the Arizona Supreme Court concluded that the instruction was constitutional is ambiguous, and appears to equate a "firm conviction" with the clear and convincing standard of proof, the certificate should issue on this claim. Claim 2 The Petitioner received ineffective assistance of counsel when the defense lawyer failed to request, or withdrew a request, for a lesser included instruction on theft, and the state court's conclusion that he was not ineffective was an unreasonable application of clearly established federal constitutional law. In his pleadings, Sueing argued that he received ineffective assistance of counsel because his trial lawyer did not request, or withdrew a request, for a lesser included offense instruction. The lesser offense was theft, which under Arizona law at the time of the trial, was a lesser included offense of robbery, but was not an underlying felony which would support a felony murder verdict of first degree murder. In denying this claim, the Court concluded that it was part of counsel's overall trial strategy to emphasize that Sueing was not present at the scene and had no participation in the crime. Therefore, the Court reasoned, failure to ask for the lesser included offense instruction was part of this strategy, which the Court concluded was reasonable under all of the circumstances. As the petitioner argued in previous pleadings, Sueing's attorney testified at the state court evidentiary hearing, that his failure to ask for the instruction was not part of any strategy in the case, -5Filed 09/01/2005

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but simply a result of fatigue and forgetfulness. (Supplemental Reply, p. 29) He acknowledged that a jury, based on all of the evidence, could have reasonably concluded that Sueing did not fire the fatal shot while robbing the victim, but stole the victim's wallet after the shooting. (Id.) Under the relaxed standards for issuing a COA, the Court should grant the request. The Ninth Circuit has made clear that failure to request a lesser included offense instruction, when the evidence warrants, is deficient performance and can be prejudicial. See United States v. Span. 75 F. 3d 1383, 1387 (9th Cir. 1996). In Span, the Court found that Span's trial lawyer was ineffective because he failed to request lesser included offense instructions, that, under the circumstances of the case, offered the only viable means by which the defendant could avoid conviction on more serious charges. Id. In this case, Sueing's only realistic hope to avoid conviction on the first degree murder charge was to provide the jury with an avenue to convict him of a lesser crime, rather than presenting the jury with an all or nothing choice. To that end, the lesser offense instruction was crucial. Failure to request it, especially when the attorney candidly admitted that his only reason for his failure was stress and fatigue, would cause reasonable jurists to find that the district court's conclusions on this claim were debatable, and that the petitioner should be encouraged to pursue this claim in a higher court. The certificate should also be granted on this claim because the state court may have ignored the factual record which supports a finding that counsel's strategy was not what the state court said it was. As mentioned in the supplemental reply, counsel's opening statement alerted the jury to his strategy, that the state's main witness, admitted to another prostitute that she had shot the victim, and fingered another man for the crime. (Supplemental Reply, p. 28, et. seq.). Sueing's lawyer also advised the jury that his witness, Ms. Abrams, would state that witness Morgan also stated that two people ran up the alleyway where the shooting occurred. Sueing's attorney also stated that his client did not commit the murder. (Supp. Reply, p. 28). Sueing's attorney testified at the evidentiary hearing that he believed that Ms. Abrams' testimony supported the giving of the theft instruction. Had the jury believed this account, and had it had the benefit of the jury instruction, Sueing could have been acquitted of felony murder. When -6Filed 09/01/2005

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asked point blank whether he could conceive of any objective reason for not requesting the instruction, the attorney answered that he could not. (Supp. Reply, p. 29.). The petitioner argued, (Supp Reply, p. 30) that the state court unreasonably determined the facts relating to this claim. First, the state court found that Sueing's statements to police were that he was not at the scene at the time of the crime. However, a complete review of the record supported the instruction. Under the totality of the record a jury could have found, had it been instructed on theft, that Sueing was a man who appeared after the shooting and took the victim's wallet. This conclusion was consistent with the defendant's opening statement, and could be inferred from the entire testimony. The district court's denial of claim 2 may be in error, and the COA should therefore issue, because the Court may not have given full weight to the facts presented in the state court evidentiary hearing. The Court noted, at p. 11 of the Order, that the defendant did not present facts at trial that would have supported the theft instruction. A fair reading of the trial transcript indicated, however, that the evidence presented by the State supported the instruction. As petitioner previously argued, (Supp. Reply p. 28) the state's main witness, prostitute Morgan's testimony was impeached by Abrams' testimony. Moreover, the totality of the state's evidence supported the scenario, advanced by the defendant, that Morgan was the shooter, made a deal when caught, and framed Sueing, who arrived on the scene following the shooting. The Court also concludes that Sueing's trial strategy was not to advance the theft theory because it would open the door to other act evidence against Sueing. (Order p. 11). However, Sueing did not testify at trial, nor was any evidence offered that opened the door. Therefore, it appears that the conclusion that Sueing risked opening the door to damaging evidence, by requesting a lesser included offense instruction, when the evidence had been presented and the trial had concluded appears not to find support in the record. The COA should also be granted because it is arguable that the state court unreasonably determined the facts supporting its conclusion that Sueing's defense theory was contradictory to the giving of the theft instruction. 28 U.S.C. 2254(d)(2) allows the federal court to determine the facts if the state court was unreasonable in its determination of the facts. See Taylor v Maddox 361 F. -7Filed 09/01/2005

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3d 992 (9th Cir. 2004). In this caes, reasonable jurists could disagree regarding whether the state court was in fact unreasonable in its factual determinations in light of the evidence presented at the state court evidentiary hearing. For the reasons set forth above, the petitioner respectfully requests that the Court grant the COA on both claims.

Respectfully Subimtted this 1st day of September, 2005

_________________________________ Patrick E. McGillicuddy Attorney for Petitioner James Lee Sueing

13 Original Electronically Filed September 1, 2005 with 14 The Clerk 15 United State District Court Sandra Day O'Connor Courthouse 16 401 West Washington Street Phoenix, AZ 85004 17 Copy Mailed to 18 The Hon. James Teilborg 19 United States District Court Sandra Day O'Connor Courthouse 20 401 West Washington Street Phoenix, AZ 85004 21 22 Copy E-Mailed and Mailed to Arizona Attorney General's Office 23 1275 West Washington Street Phoenix,AZ 85004 24 ______________________ 25 Patrick E. McGillicuddy i 26 27 28 -8Filed 09/01/2005

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