Petition for Writ of Certiorari — Robert S. Ortloff, aka Robert Stanley Ortloff, Petitioner v. Mark Brnovich, Attorney General of Arizona, et al.

Supreme Court briefApr 24, 2020

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IN THE

Su^ioi'.io Court, U.S.

HUT.D

SUPREME COURT OF THE UNITED STATES

APR 2 <1 20:20

n^F_QF THE CLERK, _

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OCTloff-

— PETITIONER

(Your Name)

vs.

^ja^OAiA ATTtPOJ£Y G-£a/£&AL, £TAL — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

U/U iTg"b iTpsViS COu(TT (9f AftAiAL.

a^IA/TU- CltCjJ \ T

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

fe&eers. outloff- a^c ajo. zzoz,g<\

(Your Name)

ASPC- EYmM, V&ouiJwOr IMJITf.Q.&Ofi 3H oo

(Address)

R0££VcL,i Al.

(City, State, Zip Code)

(Phone Number)

RECEIVED

JUN 1 0 2020

SUPR|.rEKCTOURT-^

QUESTION(S) PRESENTED

1. Whether the Court of Appeals erred when it contravened long-established decisional law to

deny a pro se habeas petitioner a certificate of appealability (COA) under the Anti-terrorism and

Effective Death Penalty Act of 1996 (AEDPA); 28 USC §2253(c), and determined no jurist of

reason could debate whether a district court could conduct a habeas review under §2254(d)

without first obtaining for consideration the relevant record upon which the state court decision

was based?

2. Whether the Court of Appeals is abusing the COA process under the AEDPA when it issues

summary denial orders which contravene long-established principles of habeas review and

controlling decisional law, to arbitrarily screen out pro se habeas cases from the heavy volume of

cases flooding its docket?

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

tyQ All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Robert S. Ortloff - Petitioner

Arizona Attorney General;

Rodney Chandler; and

Charles L. Ryan, named as

Director of the Department of Corrections - Respondents

RELATED CASES

State v Ortloff, No. CR-2003-032707-001

Maricopa County Superior Court.

Judgment of conviction entered April 10, 2004.

State v Ortloff, No. l-CA-CR-08-0508

Arizona Court of Appeals.

Decision entered April 5, 2011.

State v Ortloff, No. CR-11-0150-PR

Arizona Supreme Court.

Decision entered October 26, 2011.

State v Ortloff, No CR-2003-032707-001

Maricopa County Superior Court.

Post-Conviction Relief decision entered July 2, 2013.

State v Ortloff, No. l-CA-CR-13-0662 - PRPC

Arizona Court of Appeals.

Decision entered June 25, 2015.

Ortloff v Ryan, et al, No. CV-16-01910-PHX-SRB

U. S. District Court for the District of Arizona.

Judgment entered January 23, 2019.

Ortloff v Arizona Attorney General, et al, No. 19-15871

U.S. Court of Appeals for the Ninth Circuit.

Judgment entered December 19, 2019. Judgment denying reconsideration

entered February 11, 2020.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX OF APPENDICES

APPENDIX A

ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT - COA

APPENDIX B

ORDER AND JUDGMENT OF THE UNITED STATES DISTRICT

COURT

APPENDIX C

ORDER OF THE UNITED STATES DISTRICT COURT - RULE 59(e)

APPENDIX D

ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT - RECONSIDERATION

APPENDIX E

DECISION OF THE STATE APPELLATE COURT

APPENDIX F

DECISION OF THE STATE POST-CONVICTION COURT

APPENDIX G

SECOND AMENDED PETITION UNDER 28 U.S.C. §2254 FOR A WRIT

OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

(NON-DEATH PENALTY)

APPENDIX H

LIMITED ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

APPENDIX I

REPLY TO STATE’S LIMITED ANSWER TO PETITION FOR WRIT

OF HABEAS CORPUS

APPENDIX J

MAGISTRATE’S REPORT AND RECOMMENDATION

APPENDIX K ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

APPENDIX L

REPLY TO THE STATE’S ANSWER TO PETITION FOR WRIT OF

HABEAS CORPUS AND DECLARATION

APPENDIX M

MAGISTRATE’S REPORT AND RECOMMENDATION

APPENDIX N

PETITIONER’S OBJECTIONS TO REPORT AND RECOMMENDATION

APPENDIX O

MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO

RULE 59(e)

APPENDIX P

NOTICE OF FILING CORRECTED EXHIBIT B TO MOTION TO ALTER

OR AMEND JUDGMENT PURSUANT TO RULE 59(e)

APPENDIX Q

RESPONSE TO PETITIONER’S MOTION TO ALTER OR AMEND

JUDGMENT PURSUANT TO RULE 59(e)

APPENDIX R

PETITIONER’S REPLY TO THE RESPONDENTS’ RESPONSE TO

MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO

RULE 59(e)

APPENDIX S

REQUEST FOR A CERTIFICATE OF APPEALABILITY - 9th CIRCUIT

APPENDIX T

MOTION FOR RECONSIDERATION OF ORDER DENYING REQUEST

FOR CERTIFICATE OF APPEALABILITY

APPENDIX U

SECOND MOTION FOR SERVICES OF A FORENSIC PODIATRIST TO

EVALUATE UNTESTED SHOEPRINT EVIDENCE

TABLE OF AUTHORITIES

FEDERAL CASES

PAGE(S) NO.

Aliwoli v Gilmore,

127 F3d 632 (CA7 1997)

Allstate Ins. Co. v Herron,

634 F3d 1101 (CA9 2011)

Anderson v City of Bessemer,

470 US 564 (1985)...........

25,27

Arizona v Fulminante,

499 US 279 (1991)

Ash v Swenson,

397 US 436(1970)

Bell v Cone,

535 US 685 (2002)

Boumedrene v Bush,

553 US 723 (2008)

Bracy v Gramley,

520 US 899(1997)

Buck v Davis,

137 SCt 759(2017)

14, 28

Calderon v U.S. Dist. Ct.,

144 F3d 618 (CA9 1998)

Chaney v Lewis,

801 F2d 1191 (CA9 1986)

Cohens v Virgina,

19 US (6Wheat) 264 (1821)

Cullen v Pinholster,

563 US 170 (2011)

PAGE(S) NO.

Darden v Wainwright,

477 US 168 (1986)

10, 12

Dyer v Wilson,

446 F2d 900 (CA9 1971)

Engle v Isaac,

456 US 107(1982)

Ferrell v Ryan,

2015 U.S. Dist. LEXIS 50905 (April 15, 2015)

Giglio v United States,

405 US 150 (1972).

Goldstein v City of Long Beach

714 F3d 750 (CA9 2012)....

Gonzalez v Wong,

667 F3d 965 (CA9 2011)

Greenway v Schriro,

613 F3d 780 (CA9 2010)

Halbert v Michigan

545 US 605 (2005)

Hall v Dir. of Corr.,

343 F3d 976 (CA9 2000)

Hamilton v Vasquez,

882 F2d 1469 (CA9 1989)

Harris v Nelson,

394 US 286(1969)

Hayes v Brown,

399 F3d 972 (CA9 2005)

Hayward v Marshall,

603 F3d 546 (CA9 2010)

PAGE(S) NO.

Hensley v Municipal Court.

411 US 345(1973)........

Holm v United States,

524 US 236 (1998)

Hopwood v State of Texas,

266 F3d 256 (CA5 2000)

House v Bell,

547 US 518 (2006)

Jackson v Brown,

513 F3d 1057 (CA9 2008)

Jeffries v Morgan,

582 F3d 640 (CA6 2008)

Jennings v Woodford,

290 F3d 1006 (CA9 2002)

Johnson v Lumpkin,

767 F2d 630 (CA9 1985)

Jones v Ryan,

2018 U.S. Dist. LEXIS 87375 (May 24,2018)

Jones v Wood,

114 F3d 1002 (CA9 1997)

20,22,25,26

Keeney v Tomayo-Reyes,

504 US 1 (1992).........

Lee v Lampert,

653 F3d 929 (CA9 2011)

Lincoln v Sunn,

807 F2d 805 (CA9 1987)

Magouirk v Phillips,

144 F3d 348 (CA5 1998)

Marbury v Madison,

5 UJS (1 Cranch) 137 (1808)

PAGE(S) NO

Mariana Islands v Bowie,

243 F3d 1109 (CA9 2001)

Maxwell v Roe,

638 F3d 486 (CA9 2010)

8,9

McDowell v Calderon,

197 F3d 1254 (CA9 1999)

McFarland v Scott,

512 US 849(1994)

McNabb v United States,

318 US 332 (1943)....

Milke v Ryan,

711 F3d 998 (CA9 2013)

Miller-El v Cockrell,

537 US 322 (2003)

Miller-El v Dretke,

545 US 231 (2005)

16,23

Mooney v Holohan,

294 US 102 (1935)

11,12

Napue v Illinois,

360 US 264 (1959)

Nasby V McDaniel,

853 F3d 1049 (CA9 2016)

6, 20,22,25,

26,27

On Lee v United States,

343 US 747 (1952)..

Oto v Metro Life Ins. Co.,

224 F3d 601 (CA7 2000)

Peyton v Rowe,

391 US 54 (1968)

PAGE(S) NO

Pham v Terhune,

400 F3d 740 (CA9 2005)

Pliler v Ford,

542 US 225 (2004)

Pointer v Texas,

380 US 400(1965)

Poyson v Ryan,

879 F3d 875 (CA 9 2012)

Reynoso v Giurbino,

462 F3d 1099 (CA9 2006)

Rhinehart v Gunn,

598 F2d 557 (CA9 1979)

Richard v Picketts,

774 F2d 957 (CA9 1985)

Ruff v Kincheloe,

853 F2d 1240 (CA9 1988)

21,26

Sanders v Cullen,

873 F3d 778 (CA9 2017)

Sansing v Ring,

2013 U.S. Dist. LEXIS 16597 (February 7, 2013)

Schlup v Delo,

513 US 298 (1995)

13,24

Scott v Schriro,

567 F3d 573 (CA9 2009)

Silva v Woodford,

279 F3d 825 (CA9 2002)

Sim v Livesay,

970 F2d 1575 (CA6 1992)

PAGE(S) NO

Slack v McDaniel,

529 US 473 (2000)

5, 14, 25, 27,

28,29

Smith v Bennett,

365 US 708 (1961)

Stanley v Schriro,

598 F3d 612 (CA9 2008)

Thames v Dugger,

848 F2d 149 (CA11 1988)

Townsend v Sain,

372 US 293 (1963)

21,30

Turner v Chavez,

586 F2d 111 (CA9 1978)

United States v Bemal-Obeso,

989 F2d 331 (CA9 1993)...

United States v Hasting,

461 US 499(1983)..

United States v Rodriguez,

754 F3d 1122 (CA9 2014)

United States v Tokars,

95 F3d 1520 (CA11 1995)

United States v Wade,

388 US 218 (1967)

Vicks v Bunnell,

875 F2d 258 (CA9 1989)

21,22

Williams v Florida,

399 US 78 (1970)

PAGE(S) NO

STATE CASES

Canion v Cole,

115 P3d 1266 (Ariz 2005)

State v Krone,

182 Ariz 319 (1995)

State v Perez,

2013 Ariz.App. LEXIS 960 (August 27,2013)

FEDERAL STATUTES

28 USC

§2253(c)(2)

6, 14,28

§2254

6,10, 25,26,

§2254(d)

19,20, 26

§2254(d)(2)

16,23

FEDERAL RULES CIVIL PROCEDURE

Rule 59(e)

19,20,25,27

RULES GOVERNING SECTION 2254 CASES IN THE U.S. DISTRICT COURTS

Rule 5

Rule 11(a)

ARIZONA RULES CRIMINAL PROCEDURE

Rule 32

Rule 32.1(e) and (h)

Rule 32.2(a)

Rule 32.2(a)(2)

17,18

PAGE(S) NO

Rule 32.2(a)(1) and (3)

Rule 32.5

Rule 32.6(c)

Rule 32.6(d)

17,24

Rule 32.9(a)

OTHER

Center on Wrongful Convictions,

Northwestern University School of Law,

The Snitch System; www.iaw.northwestem.edu/wrongMconvictions

Chaffee, The Most Important Human Right In The Constitution,

32 B.U.L. Rev. 143 (1952)...........................................................

Federal Habeas Corpus Review 14

The National Registry of Exonerations - University of California, Irvine Newkirk Center for

Science & Society, University of Michigan Law School, Michigan State University College of

Law:

www.law.umich.edu/special/exoneration

Scheck, Neufeld, Dwyer, Actual Innocence, 2000

Symposium: Pro Se Litigation Ten Years After AEDPA, 41 Harv. C.R. — C.L.L. Rev. 289,2895

412(2006

Thomas C. O’Bryant, The Great Unobtainable Writ: Indigent Prose Litigation After the

Antiterrorism and Effective Death Penalty Act of 1996,

41 Harv. C.R.-C.L.L. Rev. 289 (2006)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

DO For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix __L

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[XI is unpublished.

The opinion of the United States district court appears at Appendix__*=±_to

the petition and is

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

[XI is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

court

The opinion of the _

appears at Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[XI For cases from federal courts:

The date on which the United States Court of Appeals decided my case

K e r l ^, <LQl °i

was Tb

[ ] No petition for rehearing was timely filed in my case.

[XI A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: feJoPiAXPy l\ j IjO'LO , and a copy of the

order denying rehearing appears at Appendix U

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including_______

(date) on

(date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix______

[ ] A timely petition for rehearing was thereafter denied on the following date:

_____________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C.§2253 - Appeal.

(a)

In a habeas corpus proceeding or a proceeding under section 2254 before a district judge,

the final order shall be subject to review, on appeal, by the court of appeals for the circuit in

which the proceeding is held.

(c)(1)

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2)

A court of appeals may issue under paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional right.

(3)

The court of appeals under paragraph (1) shall indicate which specific issue or issues

satisfy the showing required by paragraph (2).

28 U.S.C. §2254 — State custody; remedies in Federal Courts.

(a)

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.

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(d)

An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was adjudicated

on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding.

STATEMENT OF THE CASE

The very concept ofjustice requires that there is no more important commodity than

fidelity to the law. From that perspective, aspects of this habeas corpus case and what they

represent should trouble the Justices greatly. Beyond the procedural errors that deprived

petitioner Ortloff, an Arizona state prisoner,1 a full and fair federal habeas review within which

to vindicate his constitutional rights and demonstrate actual innocence, the case is illustrative of

the disparate treatment the lower courts are giving to habeas petitioners ---- the vast majority of

whom are disadvantaged and without the benefit of counsel2 — who seek discretionary appellant

review under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

“The writ of habeas corpus indisputably holds an honored position in our jurisprudence”

and remains “a bulwark against convictions that violate fundamental fairness.” Engle v Isaac,

456 US 107,126 (1982) (internal quotation marks omitted); also Slack v McDaniel, 528 US 473,

Compounding the considerable challenges of self-representation in preparing an effective

argument that would persuade the Justices to accept review, petitioner Ortloff has been further

encumbered by the lack of access to decisional law, arguably the most basic tool in litigation.

Under Arizona Department of Corrections policy, inmates do not have access, either directly or

through the assistance of an individual trained in the law, to Federal Reporters, Supreme Court

Reporters, or services such as Westlaw or Lexis. Nor do inmates have access to research

material such as law journals, law reviews or empirical studies related to legal issues.

Department Order 902, Inmate Legal Access to the Court, and Attachment A, Legal Resource

Catalog (listing 18 items of legal research material available);

https://corrections.az.gov/sites/default/files/policies/900/902. pdf. What authority Ortloff

presents herein was obtained previously while in the custody of another jurisdiction.

2 The Supreme Court has recognized how litigation “is a perilous endeavor for a lay person and

well beyond the competence of [the majority of state prisoners] ... who have little education,

learning disabilities, and mental impairments.” Halbert v Michigan, 545 US 605, 620-21 (2005).

With indigence as another prevalent condition in state prison populations, it is no surprise that

93% of habeas petitions are brought without the assistance of a lawyer. Federal Habeas Corpus

Review 14; see generally Thomas C. O’Bryant, The Great Unobtainable Writ: Indigent Pro Se

Litigation After the Antiterrorism and Effective Death Penalty Act of1996x 41 Harv. C.R. C.L.L.Rev. 289 (2006); Symposium: Pro Se Litigation Ten Years After AEDPA, 41 Harv. C.R.

- C.L.L.Rev. 289,289-412 (2006).

483, (2000); Smith v Bennett, 365 US 708, 713 (1961). Some have even described the writ as

“the most important human right in the Constitution.” Chafee, The Most Important Human

Right In The Constitution, 32 B.U.L.Rev. 143 (1952).

Under the AEDPA, habeas procedures have been established to permit a full,

comprehensive and independent inquiry into the legality of a state prisoner’s detention and the

conviction and sentence upon which it is based. 28 USC §2254. Before a state prisoner can

appeal the dismissal of a habeas petition, a certificate of appealability (CO A) must be issued by

either the district court judge or a judge of the court of appeals. 28 USC §2253 (c )(2); also

Rule 11(a), Rules Governing Section 2254 Cases in the U.S. District Courts.

In the instant case, after the district court dismissed the habeas petition and denied a

COA, Ortloff filed a request for a CO A in the U.S. Court of Appeals for the Ninth Circuit, which

identified manifest procedural error that occurred at the outset of habeas review. (Appendix S).

Rather than follow a long line of the circuit’s decisions holding that a habeas court must

independently review the relevant record upon which the state adjudication was based — a

command most recently emphasized in Nasby v McDaniel, 853 F3d 1049 (CA9 2016) — the

district court initially failed, then refused to obtain for consideration the crucial post-conviction

pleadings and expansive evidentiary record. A defect so fundamental that the Circuit has

consistently held that, as a threshold matter, there is “no alternative but to remand.” Id. at 1053

(internal quotation marks and citation omitted).

Inexplicably, a motions-panel summarily denied Ortloff discretionary review, concluding

that he failed to show that jurists of reason would disagree with the way the district court

resolved his constitutional claims. (Appendix A). Because the ruling defied logic, reason, and

the circuit’s own weighty precedent, as well as that of five other circuits, Ortloff moved for

reconsideration of the order. (Appendix T). In a one-line ruling, a second motions-panel again

denied the issuance of a COA. (Appendix D).

The Supreme Court has jurisdiction to review, on a petition for a writ of certiorari, a

denial of a COA under the AEDPA. Hohn v United States, 524 US 236 (1998).

The Justices should find both motions-panel rulings — as well as those issued by the

district court from which the COA request arose — as nothing short of disturbing. It is truly

remarkable that four appellate judges and a senior district court judge somehow came to a nondebatability determination in the face of plenary decisional law that any federal habeas review

without the relevant state record is statutorily impermissible. But what should be viewed as even

more disturbing is that, respectfully, these rulings — each devoid of analysis — suggest strongly

that non-legal factors were considered in a calculus to slam closed the door to discretionary

appellate review to yet one more unrepresented habeas petitioner.

Moreover, given the nature of this habeas action, these rulings are especially egregious.

It is a state cold-case with a complex history. It is fact-intensive, context-bound, and derives

from a 1984 Arizona murder.3 The 2003 indictment was obtained by Noel Levy, a prosecutor

with a history of misconduct4 leading to wrongful convictions, and was based on the 1999

3 In January 1986, Ortloff was arrested by federal authorities, convicted in the Western District

of Texas, and had been in federal custody until October 23, 2019. United States v Ortloff\ No.

93-8820, 1994 WL 725019 (CA5 1994). On that date he was transferred to Arizona custody.

4 Prosecutor Levy wrongfully sent Debra Milke and Ray Krone to Arizona's death-row. In 1992,

Milke was convicted on the basis of an alleged confession to a known perjury-prone Phoenix

detective. She remained on death-row until 2013 when the Ninth Circuit, in a scathing opinion,

reversed the conviction. Milke v Ryan, 711 F3d 998 (CA9 2013). Krone was convicted twice on

the basis of known spurious bite-mark evidence. The first conviction was reversed in 1995

because Levy withheld a video-tape concerning that evidence until the day before trial. State v

Krone, 182 Ariz. 319, 321 (1995). Retried and again convicted on the bite-mark evidence, Krone

was finally exonerated in 2002 by DNA testing, https ://en.wikipedia.org/wiki/Rav Krone.

assertions of a polished prison informant, Fredric Tokars, a former Georgia prosecutor turned

wife-slaying drug racketeer serving five life sentences.5 The case was assigned to the public

defender’s office and litigated as a death-penalty case up until the 2008 trial.

Ortloff was convicted of first-degree murder, first-degree burglary and arson of an

occupied structure, and is serving a life sentence. He has steadfastly maintained his innocence.

He is indigent and unrepresented. In state post-conviction proceedings, he was entrapped within

a procedural maze. Pretrial the only physical evidence that linked the killer to the murder —

shoeprints — proved to exculpate him. The evidence against Ortloff in extremely weak and

centered on the testimony from an untrustworthy criminal informant and an unreliable

eyewitness identification — the two primary causes of wrongful convictions.6 See Center on

Wrongful Convictions, The Snitch System: ww.law.northwestem.edu/wrongfulconvictions.

The use of criminal informants is "dirty business," On Lee v United States, 343 US 747,

755 (1952), and the Ninth Circuit has consistently recognized their inherent unreliability.

Goldstein v City ofLong Beach, 714 F3d 750, 751-52 (CA9 2012); Maxwell v Roe, 638 F3d

486, 504 (CA9 2010); Jackson v Brown, 513 F3d 1057, 1060-61 (CA9 2008); Reynoso v

Giurbino, 462 F3d 1099, 1102 (CA9 2006); Hall v Dir. ofCorr., 343 F3d 976, 978, 985 (CA9

5 See United States v Tokars, 95 F3d 1520 (CA11 1996); State v Tokars, No. 97-CR-18091,

Superior Court of Walker County, Georgia.

6 Wrongful convictions play a large part in eroding trust in the justice system. Amid the

public’s growing awareness of the scope of the problem, The National Registry of Exonerations

has gathered data on wrongful convictions, from 1989 to 2018, logging more that 2,560

exonerations. This represents a staggering 22,540 years lost to exonerees; an average of 10.9

years. In 2018, the latest year analyzed, 151 prisoners were exonerated. A number that is only a

fraction of the convictions that, like Ortloff s, are now being contested on the ground of actual

innocence, http://www.law.umich.edu/special/exoneration/pages/detaillist.aspx. (last visited

March 3, 2020).

2000) (per curiam). "Our judicial history is speckled with cases where informants falsely

pointed the finger at suspects and defendants, creating the risk of sending innocent persons to

prison." United States v Bernal-Obeso, 989 F2d 331, 334 (CA9 1993). "[W]e expect prosecutors

...to take all reasonable measures to safeguard the system against treachery." Id. The prosecution

committed misconduct with respect to the prison informant. For example, prosecutor Levy knew

that:

Informant Tokars was running a confession-trolling scheme involving at least 14 inmates

and was contemporaneously soliciting cooperation agreements in Ortloff s case and three other

cases. (Appendix G at 28-32, also at 17-21). "[T]hat 'professional snitch"' with his own

"signature modus operandi" targeting inmates and then contacting authorities with a

"spontaneous confession." Maxwell v Roe, 638 F3d at 502-05; also Sanders v Cullen, 873 F3d

778, 790-91 (CA9 2017) (same); Gonzalez v Wong, 667 F3d 965,1009 (CA9 2011) (same).

Tokars had rifled from Ortloff s property litigation-related notes that he then used as an

outline to fabricate a confession — "probably the most probative and damaging evidence that

can be admitted." Arizona v Fulminante, 499 US 279, 296 (1991). In order to shield his prized

informant from exposure at trial, as evidence discovered post-conviction shows, Prosecutor

Levy supplied Tokars with information about security cameras within the federal facility and

then rehearsed an elaborate canard that included an evidentiary prop in preparation for his

testimony.(Appendix G at 6-11). A Fourth Amendment violation so severe that it requires

"virtually automatic" reversal. United States v Rodriguez, ISA F3d 1122, 1142 (CA9 2014)

(quoting Hayes v Brown, 399 F3d 972, 978 (CA9 2005) (en banc)).

While suborning Tokars and being a source of invaluable information, he

contemporaneously maneuvered the trial court into stripping Ortloff of his right to confrontation

— "a fundamental right essential to a fair trial," Pointer v Texas, 380 US 400, 404 (1965) —

under the forfeiture-by-wrongdoing doctrine based on intent-statements made by his informant,

which resulted in the jury hearing a mass of prejudicial victim-hearsay.(Appendix G at 100-02).

A prosecutor must never use "improper methods calculated to produce a wrongful conviction."

Darden v Wainwright, 477 US 168,181 (1986).

With respect to identifications, "[ejyewitness error remains the single most important

cause of wrongful imprisonment." Scheck, Neufeld, Dwyer, Actual Innocence, 2000, at p. XVII

(study cited with approval in Mariana Islands v Bowie, 243 F3d 1109, 1124 n. 6 (CA9 2001)).

"The vagaries of eyewitness identification are well known." United States v Wade, 388 US 218,

228 (1967). "[T]he influence of suggestion upon identifying witnesses probably accounts for

more miscarriages ofjustice than any other single factor." Id. at 228-29. The prosecution

committed misconduct with respect to the identification. Among other things, Prosecutor Levy

knew that:

A grandmother and her 14-year-old granddaughter independently described the killer as

blonde and clean shaven; which is in stark contrast to Ortloff s dark brown hair and black

mustache; but the descriptions did match the other suspect who was blonde and clean shaven.

(Appendix G at 120-23).

The grandmother was adamant that the killer was not in the photo spread, while her

granddaughter had only a split-second side view of the killer's face and thought that she was

looking for one of the victim's friends who frequented the residence, which Ortloff did almost

daily. The granddaughter then selected two photos as men "closet in appearance," one of which

was Ortloff, but further explained that the hair and otherfeatures were not accurate. (Id.)

He could take advantage of the pre-indictment death of the grandmother by eliciting false

testimony mid-trial from the granddaughter that a single positive identification of Ortloff was

made 23 years earlier.(Id.) The "deliberate deception of court and jury by the presentation of

known false evidence is 'incompatible with the rudimentary demands of justice.Giglio v

United States, 405 US 150, 153 (1972) (quoting Mooney v Holohan, 294 US 102, 112 (1935)).

The prosecution committed misconduct with respect to a series of shoeprints, the only

evidence that linked the killer to the murder. Among other things, Levy knew that:

For more than two decades the grandmother and her granddaughter also consistently

maintained that the killer had fled through a muddy area with shrubbery, nearly falling when he

slipped in the mud, and then sprinted down the sidewalk. This resulted in the collection of a

distinct shoe impression, an undefinable slip-mark, and a muddy shoeprint on the sidewalk.

(Appendix G at 115-19).

Once the shoe impression — as the best representation of the evidence given to the state

expert for analysis —proved exculpatory, he could not submit the muddy shoeprint for similar

evaluation and risk another exculpatory finding because there was no way to avoid the

granddaughter and the detective testifying that the fleeing killer had slipped in the mud as he ran

along the sidewalk. (Id).

Because the grandmother was mainly responsible for the collection of the shoe

impression he could, take further advantage of her 1993 death by eliciting coordinated perjury

mid-trial from the granddaughter, the detective and informant Tokars that suddenly disassociated

the exculpatory shoe impression from the crime.7 (Id). A prosecutor may not “contrive [ ] a

7 Levy’s misconduct-strategy was to overcome more than the 2 independent eyewitness

descriptions that matched the other suspect. After the state’s expert excluded Ortloff, Levy

conviction ... through a deliberate deception,” Mooney, 294 US at 112, and the rule “bans the

knowing use of false evidence” and “false testimony”, Napue v Illinois, 360 US 264, 269

(1959), and the adve.

.rtant misrepresentation of the nature of the evidence. Darden, All US at 182.

The petition contained 48 grounds for relief.8 (Appendix G). The first 30 grounds assert

an array of interwoven claims of prosecutorial misconduct. Grounds 31-46 assert claims of

ineffective assistance of counsel ("IAC"). Ground 47 asserts cumulative error and Ground 48

raises a claim of actual innocence. Against this backdrop, and in light of "the increasing

frequency with which innocent people have been vindicated after years of imprisonment,"

Stanley v Schriro, 598 F3d 612, 623 (CA9 2008), the habeas review of Ortloffs serious claims

was narrowly limited to an analysis of the trial transcript record. (Appendix B at 2; M at 1-2).

The district court did not obtain for consideration the highly relevant and extensively

cited post-trial record and evidentiary appendix, and post-conviction procedural pleadings,

supporting affidavit and evidentiary appendix —the very record on which the state courts had

based their decisions. As a result of this structural error, the district court necessarily would, and

did, repeatedly err when it then ruled on (1) the question of exhaustion as to Grounds 1-26 and

28-30; (2) the merits of Grounds 27 and 31-48; and (3) issues involving expert services and

discovery.

learned that that other suspect wore the same size shoe that made the shoeprint evidence.

(Appendix G at 16-17).

An index of the 48 grounds for relief raised in the petition can be found attached to Appendix

O, as Exhibit B.

REASONS FOR GRANTING THE PETITION

THE COA MECHANISM UNDER THE AEDPA IS NOT A PROCESS WHERE

A COURT OF APPEALS IS UNBOUND BY THE LAW AND ALLOWED TO

ARBITRARILY DENY THE UNREPRESENTED PETITIONER

DISCRETIONARY APPELLATE REVIEW.

The rule of law is paramount, regardless of a persons’s status in society. There are

principles. And fairness. In the context of,habeas jurisprudence, these ideals are the framework

of the writ. A remedy that “is not... static, narrow [or] formalistic... but one [with] the ability to

cut through barriers of form and procedural mazes.” Hensley v Municipal Court, 411 US 345,

349-50 (1973) (internal quotation marks and citation omitted). Indeed, '"the very nature of the

writ demands that it be administered with the initiative and flexibility essential to ensure that

miscarriages ofjustice within its reach are surfaced and corrected.’” Id. (quoting Harris v

Nelson, 394 US 286,291 (1969). “[H]abeas corpus is, at its core, an equitable remedy.” Schlup

vDelo, 513 US 298, 319 (1995) (quoted approvingly in Boumedrene v Bush, 553 US 723, 780

(2008). It certainly is not a game of chance, Williams v Florida, 399 US 78, 82 (1970), and its

enabling statutes are to be construed liberally in favor of liberty. Peyton vRowe, 391 US 54, 58

(1968).

For these fundamental principles to have force and affect, however, it is imperative for a

court to be an impartial and faithful administrator of the law. The “very essence of judicial

duty,” Marbury v Madison, 5 US (1 Cranch) 137, 178 (1803), is for a court, “guided by

consideration ofjustice,” McNabb v United States, 318 US 332, 341 (1943), to “exercise [its]...

best judgment, and conscientiously to perform [its]... duty.” Cohens v Virginia, 19 US (6

Wheat) 264, 304 (1821).

When procedural rulings contravene long-settled habeas principles, as here, the courts

allow themselves to become accomplices in injustice because they shield the State against an

independent and comprehensive federal review. This not only has devastating consequences for

the petitioner, it openly frustrates public policy against criminal trials that impugn fundamental

fairness, infringe constitutional rights, and compound wrongful convictions.

Equally tragic, such procedural rulings expose the way the lower courts manipulate the

COA process. Acting unbound by the law whenever the need arises, the lower courts issue COA

denial orders as pretense to restrict the availability of appellate review. They treat the gateway

mechanism as a sort of lottery where the unrepresented habeas petitioner

is given the longest of odds at having wrongs recognized and matters set on a correct path.

II. LEGAL STANDARD FOR GRANTING A COA.

A COA requires that the petitioner make a "substantial showing of the denial of a

constitutional right." 28 USC §2253(c) (2). This inquiry "is not coextensive with a merits

analysis," and "should be decided without 'full consideration of the factual or legal bases

adduced in support of the claims.'" Buck v Davis, 137 S Ct 759, 773 (2017). The petitioner need

only make "a preliminary showing that his claim was debatable," notwithstanding that "'every

jurist of reason might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.'" Id. at 775 (quoting Miller-El v Cockrell, 537 US

322, 327 (2003)).

Similarly, when the district court's ruling is based on a procedural ground, the petitioner

must make a preliminary showing that it is "debatable whether the district court was correct in its

procedural ruling." Slack, 529 US at 478). When a court exceeds its preliminary function at the

COA stage, it "depart[s] from the procedure prescribed by §2253" and "in essence decide[s] an

appeal without jurisdiction." Buck v Davis, 137 S Ct at 113-1A.

The standard for obtaining a COA is "lenient." Hayward v Marshall, 603 F3d 546, 553

(CA9 2010) (en banc). Any doubt about the propriety of granting a COA must be resolved in the

petitioner's favor, Jennings v Woodford, 290 F3d 1006, 1010 (CA9 2002), and a court should

issue a COA unless the claim is "utterly without merit." Silva v Woodford, 279 F3d 825, 833

(CA9 2002).

III. PROCEDURAL AND FACTUAL BACKGROUND.

a. STATE

In 2008, following 33 trial days, Ortloff was convicted on all counts. A motion for new

trial was filed raising, among other issues, prosecutorial misconduct concerning shoeprint

evidence, with an attached appendix — 3300 pages of interview transcripts, depositions and

police summaries and reports. (Instrument "I" 332, 335- 347).9 There was no evidentiary hearing.

The trial court rejected each issue. (1353). Ortloff was sentenced to life, with the possibility of

parole after 32 years, to run consecutively to his 54-year federal sentence. On appeal, the same

misconduct issue was raised. (Appendix K, Exhibit A). On April 5, 2011, the Arizona Court of

Appeals affirmed. (Appendix K, Exhibit E).

On December 16, 2011, Ortloff filed, pursuant to Ariz.R.Crim.P.32, a Notice of

Post-Conviction Relief ("PCR"). (Appendix E at 1). Throughout the process, Ortloff asserted

that, as an indigent federal inmate at the time, he neither had effective access to Arizona

authority nor could he develop his claims without an attorney to perform discovery and obtain

experts and an investigator. (Appendix I at 18-30). Counsel was appointed. Then without

9 Unless otherwise specified, citations to the state docket are consistent with those used in, but

never obtained and reviewed by, the district court. The Electronic Index of Record, which

enumerates the instruments filed in the state court, is attached to Appendix O, as Exhibit A.

obtaining defense counsel's file; communicating with Ortloff to discuss what occurred outside

the trial record; or contacting experts or seek examination of untested shoeprint evidence;

counsel notified the court in formbook fashion that no cognizable claim could be found. (Id. at

21-22).

Abandoned, Ortloff filed a PCR petition raising over 150 multifaceted issues within an

array of newly developed prosecutorial misconduct claims and ineffective assistance claims

("IAC"), and a cumulative error claim. (Appendix K, Exhibit B). The record was expanded with

a 265-page affidavit (1471) and an appendix — 5,500 pages of police interview summaries and

reports; Federal Bureau of Investigation, Department of Justice and Federal Bureau of Prisons

(BOP) records; transcript volumes of witness interviews, depositions, legal and scientific articles,

and other relevant material. (1480-515; Appendix I at 6-8, 19, 31-44; Appendix L at 2-3, 6-9).

Ortloff repeatedly asserted that, once newly discovered BOP records established a perjury-nexus

between prosecutor Levy and informant Tokars, it was through that subornation-prism that other

claims developed.10 (1433; 435; 438-39; 439; 448; 453; Appendix K, Exhibit B at 2-4). The state

filed a perfunctory response (1519) and Ortloff filed a reply. (1525; Appendix I at 25-26).

On Thursday, June 27, 2013, the massive record was assigned to the PCR court (1523;

527; Appendix I at 19 n. 10)) and 3 work-days later, Tuesday, July 2, 2013, the petition was

summarily dismissed under Ariz.R.Crim.P 32.6(c)1'(Appendix F). The court determined that the

10 Under Arizona law, a due process violation based on a prosecutor’s knowing use of perjury is

generally precluded from post-conviction review unless the petitioner can demonstrate that the

claim is based on newly discovered evidence. Ferrell v Ryan, 2015 U.S. Dist. LEXIS 50905

(D.Az, April 15, 2015); see State v Perez, 2013 Ariz.App. LEXIS 960 (August 27, 2013) (claim

of perjury independent of claim of newly discovered evidence is precluded under Ariz.R.Crim.P.

312(a)(3) because defendant did not raise issue on direct appeal).

11 Under 28 USC §2254(d) (2), it will normally be presumed that the PCR court's factual

determinations are correct. Miller-El v Dretke, 543 US 231,240 (2005) 231, 240 (2005).

prosecutorial misconduct and cumulative error claims were precluded under Rule 32.2(a) (2)

because each was previously rejected on direct appeal,12 and the IAC claims were dismissed

under Rule 32.5 because they were based on speculation. (Id.). The PCR court did not address

issues of discovery and expert services.

Because the specific preclusion provision stated did not apply, to avoid a miscarriage of

justice Ortloff filed a motion for rehearing under Rule 32.9(a) (1531) and — based on controlling

Ninth Circuit precedent holding that Arizona permits post-denial amendments to PCR petitions

— a motion to amend his petition under Rule 32.6(d).(1532). He asserted that, due to post-appeal

evidentiary development of the prosecutorial claims, Rule 32.1(e) and (h) exception provisions to

any procedural bar would nevertheless apply. (Appendix I at 27-29). The PCR court did not

address either motion.

On June 25, 2015, the appellate court first ruled that the PCR court correctly concluded

that the claims were raised on direct appeal.(Appendix E at 2).13 Then because the Rule 32.1(e)

However, nothing about the resolution of this complex cold-case appears "normal." As Ortloff

argued to the district court, "reasonable jurist[s] must suspend reason and common sense to

conclude that the PCR court adjudicated the claims on the merits" within a "3 work-day"

window. (Appendix N at 5). Indeed, it is highly implausible.

12 Respondents would finally concede in its second answer that, as to Grounds 1-26 and 28-30,

each "claim was not raised on appeal." (Appendix K at 7-20) (emphasis added). This admission

is an indication of how objectively unreasonable the state PCR court factual and legal

determinations actually had been, stripping away any semblance of a fair and thorough

consideration of the claims. Initially the PCR court, then the appellate court, somehow

determined that all of the distinct and fact-intensive prosecutorial misconduct claims (which

were reformulated into the 30 grounds raised in the SAP), were “carefully considered” and

“rejected” previously in a motion for new trial and on direct appeal. (Appendix F at 2;

Appendix E at 2). Four judges claimed to have found 29 non-existent claims in the trial record an astonishing 96.6% claim-preclusion error rate.

13 Footnote 12, supra.

and (h) exception provisions were not raised in the petition but in motions for rehearing and to

amend after dismissal, it found no abuse of discretion in denying the motions. Id. at 2-3).

b. FEDERAL.

On June 14, 2016, Ortloff timely filed his original §2254 petition. (Appendix J at 1-3). In

a Second Amended Petition, (“SAP”), he presented 48 grounds for relief, which cited extensively

to the post-trial and PCR record. (Appendix G). Where grounds overlapped, each was

incorporated by reference to the correlating ground. (Id.). In its answer, Respondents argued that

prosecutorial misconduct Grounds 1-26 and 28-10 were procedurally defaulted, either implied or

expressly; the state court’s resolution of prosecutorial misconduct Ground 27 and IAC Grounds

31-46 were correct; Ground 47's cumulative error claims likewise fail; and Ground 48's actual

innocence claim lacked merit. (Appendix K).

Contemporaneously, to overcome both claim-development obstacles encountered in the

state PCR court and procedural default issues raised by Respondents with a gateway

demonstration of actual innocence, Ortloff filed a series of requests for expert services and

discovery. (Appendix M at 43-44).

Respondents were ordered to file the relevant transcript volumes for review. (Appendix B

at 2). Neither the relevant post trial appendix (1335-347) nor the PCR procedural pleadings,

affidavit and appendix (1433-515) was ordered produced. Nor was an evidentiary hearing

conducted

On September 28, 2018, the Report and Recommendation ("R&R") determined that

prosecutorial misconduct Grounds 1-26 and 28-30, while erroneously barred under Rule

32.2(a)(2), were nevertheless technically exhausted but procedurally defaulted without excuse

under either Rule 32.2(a)(1) or (3) because each could have been raised on direct appeal.

(Appendix M at 10-19). Then, following a merits review, Ground 27 failed to show that the state

adjudication was incorrect. (Id. at 43). IAC Grounds 31-46 failed to show counsel was

constitutionally ineffective or that the PCR court decision presented either an unreasonable

application of federal law or of the facts. (Id. at 24-37). Ground 47's cumulative claim likewise

failed (id. at 37-38), and Ground 48's actual innocence claim relies on demonstrating doubt as to

guilt and not affirmatively proving innocence. (Id. at 38-39). Finally, addressing the discovery

motions, each was based on “speculation”, failed to show "good cause", and denied. (Id. at 4345).

Ortloff filed objections to the R&R, arguing, among other points, that the entire review

was flawed without the expansive post-trial and post-conviction evidentiary record. (Appendix

N). The Respondents did not file a response.

On January 23, 2019, the district court overruled Ortloffs objections, adopted the R&R,

and denied the SAP and a COA. (Appendix B). Ortloff filed a Rule 59(e) motion to alter or

amend judgment, again arguing that it is manifest error to disregard controlling Ninth Circuit

precedent and perform a habeas review without the complete state record. (Appendix O and P).

The Respondents filed a bare-assertion response arguing that Ortloff was only attempting to “re

litigate” the habeas action (Appendix Q) and Ortloff filed a reply. (Appendix R). Without

addressing the detailed error raised, the district court agreed that Ortloff was merely "relitigating

old matters" and denied the motion. (Appendix C).

On April 24, 2019, Ortloff filed a timely notice of appeal. He then filed a request for a

COA on May 6, 2019, which identified two questions for discretionary review, each premised on

a long-established habeas principle: Whether reasonable jurists could debate (1) whether

§2254(d) required the district court to obtain for independent review all relevant portions of the

record on which the state adjudications are based, and (2) whether the district court abused its

discretion and committed clear error when it disregarded Ninth Circuit precedent and improperly

denied a motion to alter or amend judgment pursuant to Fed. R. Civ. P 59(e). (Appendix T). On

December 19, 2015, a motions-panel summarily denied a COA, holding that no jurists of reason

could disagree with the district court’s resolution of the petition. (Appendix A). Ortloff filed a

motion for reconsideration on January 6, 2020 (Appendix T), and on February 11, 2020, a

second motions-panel denied the motion in a one-line ruling. (Appendix D).

IV. THE COURT OF APPEALS CLEARLY ERRED AND ABUSED ITS DISCRETION

WHEN IT CONTRAVENED THE LAW OF THE CIRCUIT AND DENIED

PETITIONER A CO A.

a. REASONABLE JURISTS COULD DEBATE WHETHER 28 USC

§2254(d) REQUIRED THE DISTRICT COURT TO OBTAIN FOR

INDEPENDENT REVIEW ALL RELEVANT PORTIONS OF THE

RECORD ON WHICH THE STATE ADJUDICATIONS ARE BASED.

The Ninth Circuit has consistently held that 28 USC §2254(d) mandates that a habeas

court “conduct [ ] an independent examination of the [state] record." Nasby, 853 F3d at 1054). A

district court"must either obtain and review the relevant portions of the record on which the

state based its judgment, or conduct an evidentiary hearing of its own." Id. at 1052 (emphasis

added) (citing Jones v Wood, 114 F3d 1002 (CA9 1997)). Every habeas review "requires an

'independent' assessment of the basis of the state court's decision," "rather than accept the state

court's determination of the facts on faith." Id. at 1053 (quoting Jones, 114 F3d at 1008).

"Without such an independent assessment, the district court would be unable to 'determine

whether the state court adjudication rested on an unreasonable application of clearly established

federal law or an unreasonable determination of fact.'" Id. (quoting Jones, 114 F3d at 1013 and

discussing Lincoln v Sunn, 807 F2d 805, 808 (CA9 1987)("We may not affirm a district court's

dismissal of a writ of habeas corpus unless the court either held a hearing, or the record shows

that the district court independently reviewed the relevant portions of the state court record.");

see Richard v Picketts, 11A F2d 957, 961 (CA9 1985) (same); Johnson v Lumpkin, 767 F2d

630, 636 (CA9 1985)(same)(citing, Rhinehart v Gunn, 598 F2d 557, 558 (CA9 1979) (per

curiam)', Turner v Chavez, 586 F2d 111, 112 (CA9 1978)("In considering a petition for a writ of

habeas corpus, the district court must make its determination as to the sufficiency of the state

court findings from an independent review of the record, or otherwise grant a hearing and make

its own findings on the merits.'" The very nature of the habeas corpus action demands an

independent review.’”)(intemal citations omitted)); Vicks v Bunnell, 875 F2d 258, 259 (CA9

1989) (the district court was obligated to review the entire state record); see Ruff v Kincheloe,

853 F2d 1240, 1242-43 (CA9 1988)(When a habeas petition presents a mixed question of law

and fact, the district court has a duty sua sponte to obtain the state record and to conduct a

"complete and independent review" of that record.) (citing Chaney v Lewis, 801 F2d 1191,

1194-95 (CA9 1986)); Hamilton v Vasquez, 882 F2d 1469, 1471 (CA9 1989)(same); Dyerv

Wilson, 446 F2d 900, 900 (CA9, 1971 )(district court erred in presuming state court findings are

correct under §2254(e ) without first ordering and reviewing relevant transcripts); Rule 5 of the

Rules Governing Section 2254 Cases in the U.S. District Courts; compare Cullen v Pinholster,

563 US 170, 180 (2011) (“[F] or purposes of review under 28 USC §2254(d)(l), federal

allegation must be based on the record that was before the state court that adjudicated the claim

on the merits.”)(quoted and cited in Poysonv Ryan, 879 F3d 875, 895 (CA9 2012); United

States v Hasting, 461 US 499, 509 n.7 (1983) (constitutional error can be found harmless only

after consideration of the entire record); Townsend v Sain, 372 US 293, 319 (1963) (“Ordinarily

[the complete state court] record — including the transcript of the hearing..., the pleadings, court

opinions, and other pertinent documents — is indispensable to determining whether the habeas

applicant received a full and fair state-court evidentiary hearing resulting in reliable findings.”).

When a court of appeals is presented with a habeas case where “[t]he district court failed

to examine important parts of the [state]record,” it “face[s] a threshold obstacle to reviewing

[the] petition. ” Nasby, 853 F3d at 1052. Under these circumstances, the appellate court has '"no

alternative’ but to remand” the case for consideration of the petition in light of the full record.

Id. at 1053 (citing Jones, 114 F3d at 1008) (citing Vicks, 875 F2d at 259); see Magouirk v

Phillips, 144 F3d 348, 363 (CA5 1998) (“This case must be remanded so that the record can be

supplemented with those portions of the state record necessary to conduct a meaningful

review.”); Jeffries v Morgan, 522 F3d 640, 644 (CA6 2008) (“[W]here substantial portions of [a

trial] transcript were omitted before the District Court, a habeas case should be remanded... for

consideration in light of the full record); Aliwoli v Gilmore, 127 F3d 632, 633-34 (CA7

1997)(Because key parts of the state record are missing, “we are unable to examine Aliwoli’s

claims in light of the whole record... and we must... remand this case to the district court...”);

Thames v Dugger, 848 F2d 149, 151 (CA11 1988) (“Absent careful review of the record, a

district court has no measure to determine whether the petitioner’s constitutional claim received

a full and fair hearing.”).

Here, the district court confined its habeas review to an analysis of the trial transcript

record. (Appendix B at 2). This limitation is especially confounding given that the SAP itself

asserted a citation-based factual predicate for each of the 48 claims that is based in huge part on

information outside the transcript record (Appendix G at 6-152). In fact, the district court was

left with no doubt that the claims principally turn on an expansive evidentiary record made post

trial (Appendix I at 6-8; Appendix L at 6-9; Appendix N at 10; Appendix O at 4-5; Appendix R

at 1-4), and then in post-conviction.14 (Appendix I at 19, 31-36, 41-43; Appendix L at 2-3;

Appendix N at 2; Appendix O at 5-10; Appendix R at 1-4).

Nor was there any doubt that the full record was necessary in making determinations

regarding context-bound issues of procedural default (Appendix I at 25-29; Appendix L at 3, 10;

Appendix N at 3-5; Appendix O at 10-16; Appendix R at 1-4), and those involving expert

services and discovery. (Appendix I at 17-23, 47, 52 and n.26; Appendix L at 4, 11, 15 and n.4;

Appendix N at 3; Appendix O at 17-19; Appendix R at 1-4).

Consequently, the district court necessarily would, and did, commit manifest error. A

comprehensive review of the relevant state record demonstrates that:'

Grounds 1-26 and 28-30 were developed post-appeal and therefore not subject to any

preclusion provision under Ariz. R. Crim. P. 32.2(a). A factual basis for application of a

procedural bar is, after all, a "matter of constitutional fact" that must be "decide[d] through an

examination of the entire record." Ashe v Swenson, 397 US 436, 443 (1970); see Miller-El v

Dretke, 545 US at 240 (to avoid a procedural bar, a petitioner must show that the state court's

conclusion "to be an reasonable determination of the facts in light of the evidence presented in

the state court proceeding.")(quoting 2254(d)(2)).

In the alternative, Ortloff s motion to amend his petition exhausted the claims. A fair

reading of the full record shows "good cause" to amend and the appellate court's ruling that

barred post-denial amendment was irregular and invalid. The Arizona Supreme Court allows

liberal amendment of PCR petitions, Scott v Schriro, 567 F3d 573, 581 n.6 (CA9 2009) (citing

14 The district court was additionally provided with a detailed compilation of those portions of

the PCR record as they pertain to the individual 48 grounds for relief (Appendix P), and an index

of the 632 appendices in that record. (Appendix O, Exhibit C).

Canion v Cole, 115 P3d 1261, 1264 (Ariz 2005)), and Rule 32.6(d) permits post-denial

amendments. Greenway v Shriro, 613 F3d 780, 798 (CA9 2010).

Grounds 27 and 31-48 are not, as the district court repeatedly admonished, "unsupported"

allegations based on "speculation" or that “rel[y] on supposition." (Appendix M (R&R) at 24-38,

42-43; Appendix B at 10-20, 21-23). These conclusions are fundamentally unfair and also easy

to make when the specific evidentiary supportfor each allegation remains unreviewed in the

state court}5

When Ortloff entered federal habeas proceedings, he sought to overcome claim-

development obstacles encountered in the PCR court with a series of requests for expert and

investigative services and discovery. Without the underlying state record before it, the district

court continued to admonish Ortloff for allegations based on "speculation" and for failing to

demonstrate "good cause." (Appendix M (R&R) at 43-45; Appendix B at 23-24). Moreover, the

district court's analysis is improperly premised on perceived failures committed by Ortloff when

such failures are justly attributed to the PCR court's abuse of discretion in denying the discovery

in the first instance. The "services of investigators and ... experts" were "critical" in the

preparation of Ortloffs PCR effort. McFarland v Scott, 512 US 849, 855-56, 860 (1994). A fair

reading of the full record reveals that each motion demonstrated "good cause" to conduct the

requested discovery and the district court abused its discretion in their denial.16

15 Ground 48's actual innocence claim itself required the district court to conduct a careful review

of the entire record, which includes "'all the evidence,’ old and new." House v Bell, 547 US 518,

538 (2006) (quoting Schlup, 513 US at 327-28); also LeevLampert, 653 F3d 929, 938 (CA9

2011 ){en banc).

16 Prosecutorial machinations surrounding the shoeprint evidence aside, given the evidence

prosecutor Levy adduced at trial — that the killer “slipped in some mud” and then fled along the

sidewalk (Appendix G at 117-18; Appendix U) — it remains inexplicable that neither the state

courts nor the district court would provide the services of an expert to evaluate the muddy

Bracy v Gramley, 520 US 899, 908-09 (1997); Pham v Terhune, 400 F3d 740, 443 (CA9 2005);

Calderon v U.S. Diet. Ct., 144 F3d 618, 622 (CA9 1998).

"[I]t is clear that in order to provide adequate habeas review as contemplated by [§2254],

the [district] court [was] required to review the state record." Nasby, 853 F3d at 1054 (emphasis

added); also Jones, 114 F3d at 1008. The district court’s failure to conduct an "independent

review" of the complete state record is patently "debatable," or wrong, and therefore Ortloff was

entitled to a COA. Slack, 529 US at 484.

b. REASONABLE JURISTS COULD DEBATE WHETHER THE DISTRICT

COURT ABUSED ITS DISCRETION AND COMMITTED CLEAR ERROR

WHEN IT DISREGARDED CONTROLLING NINTH CIRCUIT PRECEDENT

AND IMPROPERLY DENIED A MOTION TO ALTER OR AMEND

JUDGMENT PURSUANT TO FEDERAL RULE CIVIL PROCEDURE 59(e).

In his motion, Ortloff respectfully asked the district court to exercise its "considerable

discretion," McDowell v Calderon, 197 F3d 1254,1255 n.l (CA9 1999)(en banc), and "correct

manifest errors of law [and] fact upon which the judgment rests" and "prevent manifest

injustice." Allstate Ins. Co. v Herron, 634 F3d 1101,1111 (CA9 2011) (citing McDowell, 197

F3d at 1255 n.l). In order to demonstrate clear error of law or fact, or manifest injustice under

Rule 59(e), Ortloff must show that the judgment is "clearly erroneous." McDowell, 197 F3d at

1255 n.4. Clear error occurs where "the reviewing court... is left with the definite and firm

conviction that a mistake has been committed." Anderson v City ofBessemer, 470 US 564, 573

(1985) (citation omitted).

shoeprint. And this, despite the fact that defense counsel raised his own ineffective performance

post-trial, lamenting that the shoeprint should have been subject to expert examination.

(Appendix G at 133 - IAC Ground 33). “When an attorney fails to examine potentially

exculpatory evidence..., the Strickland presumption that the failure is ‘sound trial strategy’ is

surmounted.” Jones, 144 at 1011 (citing Sim v Livesay, 970 F2d 1575, 1580 (CA6 1992)

(counsel’s failure to have potentially exculpatory physical evidence examined “cannot be

characterized as a reasonable exercise of professional judgment.”).

Ortloff presented 5 instances of clear error: (1) The scope of habeas review under §2254

must be "complete and independent" (Appendix O at 3-4); (2) The merits review of Grounds 27

and 31-48 failed to comport with the requirements of §2254(d) (id. at 4-10); (3) Grounds 1-4, 613, 15-26 and 28-30 are not subject to an implied procedural bar (id. at 1015); (4) Grounds 5 and

14 were properly presented in the PCR court (id. at 15-16); and (5) The discovery motions were

essential to full development of the underlying IAC and actual innocence claims and the PCR

court abused its discretion in denying discovery in the first instance. (Id. at 17-18).

In response, the Respondents chose to ignore each enumerated error and instead asserted

that Ortloff " appears to be re-litigating" his SAP and he nevertheless could have requested

produced the "additional record ..., but he did not do so. n 17 (Appendix Q at 2).

The district court also elected not to recognize the enumerated error and address the

detailed arguments. Instead, the district court diluted the arguments down to Ortloff merely

having " opine [d] that the Court should correct the manifest error of law and fact upon which the

judgment rests," then declined to alter or amend the judgment because Ortloff was only

attempting "to relitigate old matters." (Appendix C at 2).

Far from attempting to "relitigate" his habeas action, as noted above, Ortloff sought to

have his claims of serious constitutional error receive for the first time the "independent and

17 This bare assertion is equally baseless. Ortloff argued that his claims are based on a

"substantial amount of information that cannot be found in the trial record" (Appendix I at 47),

and asserted that he "does not have the ability to provide [the] Court with the record, and 28 USC

§2254 and the Rules Governing the statute relieve him of any obligation to do so and requires the

State to file the relevant record." (Id. at 47 n.22) (citing Pliler v Ford, 542 US 225, 232 (2004)).

"[I]t is the district court's independent obligation to obtain the relevant part of the record.”

Nasby, 853 F3d at 1053 (emphasis added) (citing Jones, 114 F3d at 1008) ("[T]he district court

had the duty to obtain the record j&e(f.")(emphasis added); Ruff, 853 F2d at 1243 (same).

complete" assessment that §2255(d) "demands." Nasby, 853 F3d at 1054 (emphasis added). It is

a "principle" of law that required the district court to independently review Ortloffs habeas

action. Id. at 1042. By failing in its obligation at the outset to obtain the relevant record on which

the state courts based their decisions, and then failing to rectify that clear error under Rule 59(e),

the district court effectively rendered §2254 meaningless. (Id.).

Based on the "wholesale disregard ... or failure to recognize controlling precedent," Oto

v Metro. Life Ins. Co., 224 F3d 601, 606 (CA7 2000), the district court's rulings would leave a

reasonable jurist "with the definite and firm conviction" that "clear error" occurred. Anderson,

470 US at 573. That the rulings are "dead wrong." Hopwood v State of Texas, 236 F3d 256,

273 (CA5 2000). Because the district court's failure to follow unambiguous Ninth Circuit

precedent constitutes clear error and the denial of the Rule 59(e) motion was an abuse of

discretion, each is patently "debatable," or wrong, and Ortloff was entitled to a COA. Slack, 529

US at 484.

V. THIS CASE PRESENTS EXTRAORDINARY CIRCUMSTANCES WHICH

JUSTIFY THE EXERCISE OF THE SUPREME COURT’S SUPERVISORY

POWER.

This is a disturbing case that deserves stem and unqualified judicial condemnation. It

would be an understatement to characterize each COA denial as a procedural mling

disharmonious with the overwhelming weight of controlling decisional law. Each decision is,

respectfully, legally indefensible and strikes at the fundamental integrity of the AEDPA’s

gateway process itself.

The district court gave no operation or function to §2254(d)’s independent review

requirement. At no time did it undertake the formidable inquiry into the expansive state record

necessary to make fact-determinations within appropriate legal frameworks. As a consequence,

the district court lacked critical facts. It lacked context. It had no apprehension of the nature of

the claims. No backdrop to the events that transpired prior to trial, at trial, or those that occurred

afterwards. No ability to conceptualize the manifest constitutional error and resultant prejudice.

Nor did the district court give operation or function to §2253(c)(2)’s gateway mechanism.

Despite repeated reminders of its obligation to obtain for consideration and review the entire

state court record,18 the court rather remarkably determined that that long-established habeas

principle and the extensive decisional law of the circuit were either unpersuasive or

unreasonable, and refused to grant a COA.

Equally offensive to the AEDPA, the Court of Appeals also gave no operation or function

to these habeas statutes. Unbound by the facts and the law, the appellate court twice summarily

denied the issuance of COA.

The only question for the Court of Appeals was whether Ortloff had shown that jurists of

reason could disagree with the district court’s resolution of his claims and that the issues

presented are adequate to deserve encouragement to proceed further. Buck, 137 S Ct at 173-74.

As noted above, it is plain as a pike staff that Ortloff made the requisite showing that it is

“debatable whether the district court was correct in its procedural ruling [s]” to conduct a habeas

review of his claims without the relevant state record. Slack, 529 US at 478.

The purpose of the gateway mechanism creating discretionary appellate review was to

eliminate abuse of the writ in federal court by undue interference with state process incident to

18 It strains credulity to believe that the lower courts did not treat Ortloff s habeas action as a

game. After all, in a six-year-old habeas case, the same senior district court judge was aware of

her duty to, and did, independently review the relevant state court record. Sansing v Ryan, 2013

U.S. Dist. LEXIS 16597 (February 7, 2013). Then in a habeas case only eight months prior to

reviewing Ortloff s petition, she punched another petitioner’s lottery ticket and conducted an

independent review of the entire record that was before the state court. Jones v Ryan, 2018 U.S.

Dist. LEXIS 87375 (May 24, 2018).

protracted appellate proceedings in frivolous cases. Bell v Cone, 535 US 684 (2002). It was

never meant, as here, to become a process where an expedient procedural bulwark could be

arbitrarily raised before the unrepresented petitioner on the path to appellate review.

If procedural rulings such as those entered against Ortloff are to be accepted, even tacitly,

the very concept of justice would be invalid, rendering federal habeas review to have no

meaning. In fact, what was metted out to Ortloff, as with many habeas petitioners who are

neither well-to-do nor connected, is the antithesis ofjustice. And the most significant and

unsettling impact of such acceptance will be that an ever-greater number of future requests for a

COA, regardless of the issues and legal argumentation, are going to be unsuccessful. It is the

power of inertia. The lower courts will be further emboldened to dispose of habeas cases in slap

dash fashion, and continue to produce troublesome results, create procedural anomalies, and

unjustly cast the unrepresented petitioner into legal oblivion.

An ever-growing portion of the public has an honest and real skepticism against the

criminal justice system because more and more individuals and their families and friends have

lived it. All too often the public sees a broken system, one where constitutional rights, and legal

remedies to vindicate those rights and correct miscarriages ofjustice are contingent on status and

politics. This is why the Supreme Court must remain vigilant and play an active role in injecting

vitality and fairness back into federal habeas review. A proceeding deprived of a court’s fidelity

to the law or the facts has grave consequences for society. For any jurist that genuinely believes

in the administration of the AEDPA and uniformity in its application, there can be no retreat

from these habeas principles here.

Unfortunately for the unrepresented habeas petitioner, it is virtually impossible to

demonstrate the extent of the problem, its adverse ramifications, and the ineffectiveness of the

gatekeeping process. Rulings that deny a COA are hidden within unpublished procedural orders,

often, as here, without identifying the issues raised, while the majority of petitioners have

limited, if any, access to legal studies, journals or reviews addressing the subject. The only

substantive way to reduce these tragic abuses of discretion in habeas corpus, if not eliminate

them in the future, is for a petitioner like Ortloff to expose the problem to the Supreme Court,

The Justices should not allow anarchy in habeas cases to prevail, as untenable procedural

rulings will continue to erode the public’s trust. The Justices should now reiterate their

commitment to the principles of habeas review and the COA process. If the purpose of the writ

is to give one whom the state deprived of his freedom the opportunity to open an inquiry into the

intrinsic fairness of his trial, then Ortloff was patently denied habeas proceedings that were “full

and fair”. Keeney v Tomayo - Reyes, 504 US 1, 10 (19092); Townsend, 372 US at 319.

CONCLUSION

The petition for a writ of certiorari should be granted.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.