Petition for Writ of Certiorari — Murray Hooper, Petitioner v. Arizona

No.

IN THE

Supreme Court of the United States

_____________

MURRAY HOOPER,

v.

DAVID SHINN, et al.,

_____________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Arizona Supreme Court

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

JON M. SANDS

FEDERAL PUBLIC DEFENDER

KELLY CULSHAW*

ASSISTANT FEDERAL

PUBLIC DEFENDER

DISTRICT OF ARIZONA

850 West Adams Street

Suite 201

Phoenix, AZ 85007

(602) 382-2816

Counsel for Petitioner

November 15, 2022

* Counsel of Record

CAPITAL CASE: EXECUTION SCHEDULED

NOVEMBER 16, 2022 AT 12PM EST

QUESTION PRESENTED

Less than three weeks before Petitioner Murray

Hooper’s scheduled execution date, an attorney with

the Maricopa County Attorney’s Office revealed for the

first-time to the Arizona Board of Executive Clemency,

that the sole eyewitness to the crime had excluded Petitioner as a perpetrator when she was unable to identify him in a pre-trial photo lineup. This exculpatory

evidence flatly contradicts and puts the lie to the

state’s pretrial and trial witnesses who falsely testified

that no such lineup had ever been administered. The

prosecution’s failure to disclose this evidence is a clear

violation of Brady v. Maryland and Napue v. Illinois.

Once Petitioner accused the State of withholding the

exculpatory evidence, the State dissembled and

claimed its disclosure of the lineup was mistaken—

averring the contents of its file proved the mistake.

When Petitioner’s counsel asked to review the file, allegedly proving the mistake, the State refused. At an

evidentiary hearing on Petitioner’s newly discovered

Brady/Napue claim, the attorney representing the

State avowed that he was “absolutely confident that

there was no such photo lineup” while at the same time

he admitted that he was not sure if he had “all of those

documents” in his own file. At that same hearing, the

State’s attorney also agreed that Petitioner’s claim will

“rise or fall” on the existence of the photo lineup and

agreed that if the evidence exists, it “certainly would

be enough to . . . dive right back into everything.”

The Arizona postconviction court had evidence before it that showed the State’s unequivocal admissions

as to the existence of the exculpatory evidence, but it

(i)

denied Petitioner relief in reliance on a self-serving

and admittedly uninformed avowal by the State’s attorney as to the purported contents of the State’s files,

while denying Petitioner access to the same files. The

Arizona Supreme Court affirmed.

Accordingly, in defiance of this Court’s clearly established precedents on disclosure of exculpatory evidence, the state courts denied the claim, by suppressing the very evidence required to prove the claim.

This case presents the following question: Once the

state has admitted that material exculpatory evidence

exists, does it have a duty to provide a defendant access to that evidence?

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner is Murray Hooper, a prisoner incarcerated

at the Arizona State Prison Complex Florence, Central

Unit.

Respondent is David Shinn, Director, Arizona Department of Corrections.

There are no corporate parties involved in this case.

STATEMENT OF RELATED PROCEEDINGS

Arizona v. Hooper, No. CR-22-0268-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order denying post-conviction relief,

dated Nov. 14, 2022).

Hooper v. Shinn, No. 21-6593 (Supreme Court of the

United States) (order denying petition for a writ of certiorari, dated Mar. 21, 2022).

Hooper v. Shinn, No. 08-99024 (United States Court of

Appeals for the Ninth Circuit) (opinion affirming district court’s judgment, filed on January 8, 2021; order

denying rehearing filed on July 15, 2021).

Hooper v. Shinn, No. 21-70995 (United States Court of

Appeals for the Ninth Circuit) (order denying application to file a second or successive habeas corpus petition, filed on June 1, 2021).

Arizona v. Hooper, No. CR-18-0248-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order dismissing post-conviction relief,

dated July 28, 2020).

Hooper v. Schriro, No. CV 98-2164-PHX-SMM (United

States District Court for the District of Arizona) (judgment denying petition for writ of habeas corpus, entered October 10, 2008).

Hooper v. Arizona, No. 06-5381 (Supreme Court of the

United States) (order denying petition for a writ of certiorari, dated October 2, 2006).

Arizona v. Hooper, No. CR-05-0493-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order dismissing post-conviction relief,

dated April 20, 2006).

Arizona v. Hooper, No. CR-97-0410-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order dismissing post-conviction relief,

dated June 25, 1998).

Hooper v. Arizona, No. 98-9288 (Supreme Court of the

United States) (order denying petition for a writ of certiorari, dated Oct. 2, 1995).

Arizona v. Hooper, No. CR-94-0281-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order dismissing post-conviction relief,

dated Dec. 22, 1994).

Hooper v. Arizona, No. 89-5633 (Supreme Court of the

United States) (order denying petition for a writ of certiorari, dated June 28, 1990).

Arizona v. Hooper, No. CR-88-0393-PC (Arizona Supreme Court) (order denying petition for review of

lower court’s order dismissing post-conviction relief,

dated May 23, 1989).

Hooper v. Arizona, No. 85-5705 (Supreme Court of the

United States) (order denying petition for a writ of certiorari, dated January 13, 1986).

Arizona v. Hooper, No. 5810 (Arizona Supreme Court)

(opinion affirming lower court judgment, filed November 7, 1983; order denying motion for reconsideration,

filed August 20, 1985; mandate issued August 22,

1985).

Arizona v. Hooper, No. 121686 (Maricopa County Superior Court) (judgments of guilt and sentences, dated

February 11, 1983).

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING .......................... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

TABLE OF CONTENTS........................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS AND ORDERS BELOW ......................... 1

STATEMENT OF JURISDICTION ........................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................................... 1

INTRODUCTION ....................................................... 1

STATEMENT.............................................................. 5

REASONS FOR GRANTING THE PETITION ....... 12

CONCLUSION ......................................................... 16

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Banks v. Dretke,

540 U.S. 668 (2004) ........................................................ 15

Brady v. Maryland,

373 U.S. 83 (1963) .................................................... 10, 14

Giglio v. United States,

405 U.S. 150 (1972) ........................................................ 14

Hooper v. Shinn,

142 S. Ct. 1376 (2022) ...................................................... 9

Hooper v. Shinn,

985 F.3d 594 (9th Cir. 2021) .............................. 2, 8, 9, 13

Kyles v. Whitley,

514 U.S. 419 (1995) ............................................ 13, 14, 15

United States ex rel. Maxwell v. Gilmore,

37 F. Supp. 2d 1078 (N.D. Ill. 1999) ................................ 3

Napue v. Illinois,

360 U.S. 264 (1959) ............................................ 10, 14, 15

State v. Bracy,

703 P.2d 464 (Ariz. 1985) ...................................... 5, 9, 12

State v. Hooper,

703 P.2d 482 (Ariz. 1985) ........................................ 3, 4, 5

State v. Hooper,

No. CR 0000-121686 (Maricopa Cnty.

Sup. Ct. Oct. 31, 2022) ................................................... 11

ix

State v. Hooper,

No. CR-83- 0044-AP (Ariz. Oct. 12, 2022)...................... 9

Strickler v. Greene,

527 U.S. 263 (1999) .................................................. 13, 14

United States v. Agurs,

427 U.S. 97 (1976) ............................................................ 9

United States v. Bagley,

473 U.S. 667 (1985) ........................................................ 14

United States v. Nixon,

418 U.S. 683 (1974) ........................................................ 14

United States v. Velarde-Gomez,

269 F.3d 1023 (9th Cir. 2001) (en banc) .......................... 9

Wearry v. Cain,

577 U.S. 385 (2016) ........................................................ 14

Statutes

28 U.S.C. § 1254(1) ................................................................ 1

U.S. Const. amend. VIII § 1 ................................................... 1

U.S. Const. amend. XIV § 1 ................................................... 1

1

PETITION FOR A WRIT OF CERTIORARI

Murray Hooper respectfully petitions for a writ of

certiorari to review the judgment of the Arizona Supreme Court.

OPINIONS AND ORDERS BELOW

The opinion of the Maricopa County Superior Court

dated November 14, 2022, is attached as Pet. App. B.

The Arizona Supreme Court order denying review

dated November 14, 2022, is attached at Pet. App. A.

STATEMENT OF JURISDICTION

The judgment of the Maricopa County Superior

Court was entered on November 14, 2022. Petitioner

filed a timely petition for review in the Arizona Supreme Court, which was denied on November 14, 2022.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII § 1.

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV § 1.

INTRODUCTION

The State of Arizona intends to execute Petitioner

Murray Hooper, a 76-year-old black man, on Novem-

2

ber 16, 2022. For forty years, Petitioner has steadfastly maintained his innocence. For just as long, reviewing courts have relied on surviving victim Marilyn

Redmond’s eyewitness identification testimony to sustain the conviction. Mrs. Redmond was “[t]he most important witness…, as she was the only one who saw

the intruders in her home. [She] identified Hooper”

and his two codefendants. Hooper v. Shinn, 985 F.3d

594, 603 (9th Cir. 2021). This identification, according

to the state, occurred during an in-person lineup arranged and administered by Chicago police detectives

nearly two months after the crime took place. (Tr.

12/20/82 at 65–70; Tr. 11/30/82 p.m. at 58–61.) 1

1 The lineup identification occurred in 1981, an era in

which the Chicago Police Department was tainted by

corruption, torture, and coercive practices, which have

been extensively documented and resulted in dozens of

exonerations and hundreds of millions of dollars in

civil lawsuit payouts to the victims. See, e.g., Summary

of Judicial, Executive, and Administrative Findings

and Admissions Concerning Systemic Chicago Police

Torture at Area 2 and 3, The Invisible Institute, available at https://tinyurl.com/3udcmxx3 (last visited Nov.

13, 2022). While in custody, Mr. Hooper was beaten

(See ROA 382 at 1–3), denied access to a lawyer (Tr.

9/1/82 at 106–11), and coerced to make a false statement (ROA 382 at 3, 7). One of the officers who arrested Hooper, Michael Hoke, was later granted immunity from prosecution in exchange for his testimony

about the torture of suspects by Chicago police. 3 Cops

Get Immunity in Torture Case, Chi. Trib., Dec. 2, 2005.

A federal court has recognized that “beatings and

other means of torture occurred as an established

(continued . . .)

3

Petitioner has long surmised that Mrs. Redmond

had been shown a photograph of him prior to viewing

him in a live lineup. And with good reason. He learned

the Phoenix Police showed photographs of suspects, including of Petitioner, as soon as they could, to multiple

witnesses. (Tr. 11/9/82 at 178–79, 203.) The state’s detective explained that “it really wasn’t necessary to

show Mrs. Redmond any photo lineup” because they

had already developed evidence from showing photographs to other witnesses. (Tr. 11/9/82 at 203.) Mrs.

Redmond, however, was the sole eyewitness; no physical evidence linked Petitioner to the crime. The other

witnesses who testified against Petitioner received

monetary compensation, conjugal visits, and immunity despite being implicated in this and other violent

crimes. (See, e.g., 12/17/82 at 47; Tr. 12/20/82 at 25–26,

35–38, 54–55, 172; Tr. 7/21/83 at 63–68, 71–72, 83, 99–

103; Tr. 12/16/82 16–19, 35–37, 40, 55–56; Tr. 11/29/82

a.m. at 24–26; Tr. 11/24/82 at 53–55; ROA 1167; Trial

Ex. 209.)

Because her eyewitness testimony was so critical,

“[t]he accuracy of Mrs. Redmond’s description was

hotly contested at trial.” State v. Hooper, 703 P.2d 482,

488 (Ariz. 1985). And her memory was less than consistent. Her “first description of her assailants indicated that three black men, two of whom were masked,

were the murderers.” Id. Although she “initially said

that all three men were black” (a description that was

practice, not just on an isolated basis” in the Area 2

Chicago Police Station, the station from which Hoke

had transferred before Hooper’s arrest. United States

ex rel. Maxwell v. Gilmore, 37 F. Supp. 2d 1078, 1094

(N.D. Ill. 1999); see also John Conroy, The Police Torture Scandal: A Who’s Who, Chicago Reader, June 16,

2006.

4

“not particularly detailed”), 2 Mrs. Redmond later “corrected herself” and indicated one of the assailants was

white. Id. And while “some [investigating police] accounts [indicated] that Mrs. Redmond initially stated

that one or two of the assailants wore masks,” she

“herself never recalled mentioning masks.” Id.

Despite Petitioner litigating the constitutionality of

his conviction for decades, it was not until a letter

dated October 28, 2022, that the Maricopa County Attorney’s Office revealed for the first-time that Mrs.

Redman had excluded Petitioner as a perpetrator

when she was unable to identify him in a pre-trial

photo lineup. In its submission to the Arizona Board of

Executive Clemency, the Maricopa County Attorney’s

Office stated—twice—that Mrs. Redmond was shown

a paper photo lineup yet failed to identify Petitioner,

thereby implicitly excluding him as a perpetrator of

the crime. 3 The prosecutor’s belated admission flatly

contradicts the state’s pretrial and trial assertions

that no such lineup had ever been administered. And

the admissions were not woven from whole cloth or imagined, they rested on the prosecutors’ interpretation

of their own files.

2 Petitioner’s codefendant William Bracy was black,

and Edward McCall was white. Mrs. Redmond, along

with her husband and mother, were white.

3 The County Attorney stated that “Hooper and [code-

fendant] Bracey were arrested in Chicago. [Mrs. Redmond] was flown out and participated in live line ups

with them. She had previously been unable to pick

them out of a paper lineup.” Pet. App. F at 11. The

County Attorney submitted a second letter on November 1, 2022, to correct several errors in its previous letter. Notably, the second letter repeated the affirmation

of the photo lineup. Pet. App. G at 11.

5

STATEMENT 4

1. On December 31, 1980, William “Pat” Redmond

and his mother-in-law, Helen Phelps, were shot and

killed by three home invaders. State v. Bracy, 703 P.2d

464, 469 (Ariz. 1985). 5 Mr. Redmond’s wife, Marilyn,

was shot in the head but survived. Id. In what Petitioner has consistently maintained was a frameup by

the actual perpetrators, the State relied upon selfserving testimony of two others implicated in the

crime to build a case against Petitioner, and two codefendants: William Bracy, and Edward McCall. All

three men were eventually convicted substantially

based on Mrs. Redmond’s eyewitness identification,

and the testimony of several paid government witnesses and co-conspirators, whose testimony was provided in exchange for extraordinary consideration and

benefits from the State, including immunity from serious crimes (including this one), as well as money,

drugs, and sex. (See, e.g., 12/17/82 at 47; Tr. 12/20/82

at 25–26, 35–38, 54–55, 172; Tr. 7/21/83 at 63–68, 71–

72, 83, 99–103; Tr. 12/16/82 16–19, 35–37, 40, 55–56;

Tr. 11/29/82 a.m. at 24–26; Tr. 11/24/82 at 53–55; ROA

1167; Trial Ex. 209.)

Despite her in-person identification of Petitioner,

Mrs. Redmond’s early descriptions of the assailants

4 For a more detailed summary of Petitioner’s case, see

the “Statement of the Case” from Petitioner’s Opening

Brief in the Ninth Circuit. Hooper v. Shinn, No. 0899024. Pet. App. J.

5 “[Petitioner] was tried jointly with William Bracy.

The facts in [Petitioner’s] case are identical to those in

State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985).”

State v. Hooper, 703 P.2d 482, 487 (Ariz. 1985).

6

were inconsistent and vague. For example, shortly following the crime, she indicated that she could not identify the intruders at all, since she was too afraid to look

at them. (Tr. 11/30/82 p.m. at 73; Tr. 8/26/82 at 141–

42.) She then told the police that “three black men”

committed the crime (Tr. 11/3/82 at 171, 180) but later

stated that two black men and one white man committed the crime (Tr. 11/3/82 at 221, 231, 248). She also

indicated that some of the assailants were wearing

masks (Tr. 8/27/82 at 69–70), but then stopped referencing masks and began describing the suspects as

clean-shaven (Tr. 11/8/82 p.m. at 74–75). And although

Mrs. Redmond testified that there was sufficient bedroom lighting to clearly see the intruders (a fact critical to the prosecution being able to make a submissible

case) (Tr. 11/30/82 p.m. at 37–38), she had previously

stated that there was no bedroom lighting and that it

was too dark to see any faces (Tr. 11/30/82 p.m. at 79).

During the police station lineup, Mrs. Redmond did

not initially identify anyone in the lineup, in which

Hooper was present. (Tr.11/8/82 at 17.) Only after she

returned from “the lieutenant’s office” where she and

investigators had a “closed door” “discussion” did she

state that one assailant, Hooper, was present. (Id.)

The identification of Hooper was also the only identification in this case that was not recorded. (Tr. 11/10/82

at 181–83.)

Other serious questions of factual accuracy exist

with respect to Mrs. Redmond’s trial testimony. For

example, although Mrs. Redmond stated that the intruders did not wear gloves (Tr. 11/30/82 p.m. at 69,

85), neither Hooper’s fingerprints, nor any other corroborative physical evidence, was found at the scene

(Tr. 11/15/82 at 16). Mrs. Redmond testified that

Hooper taped her hands (Tr. 11/30/82 p.m. at 45–47),

but his fingerprints were not found on the recovered

7

tape (Tr. 11/15/82 at 12). She also testified that the

family room television was off that night (Tr. 11/30/82

p.m. at 31, 34, 88–89), but crime-scene photographs

showed that the television was on (Tr. 11/30/82 p.m. at

89).

Besides Mrs. Redmond, other witnesses who directly implicated Petitioner—Arnie Merrill, George

Campagnoni, Valinda Harper, 6 and Nina Marie

Louie 7—were all heavily incentivized to provide a

highly coordinated testimony that absolved them all

from suspicion. Merrill and Campagnoni admitted involvement in the planning or commission of the crime.

(See 10/31/22 Successor Petition at 26–27.) Merrill testified that he knew about the plan to kill Redmond,

drove the killers to Redmond’s house and business,

and helped them procure weapons. (Tr. 11/17/82 at 9–

11, 15–16, 28–32, 44–51, 64–65, 72, 106.) 8 Despite his

6 Harper, an aspiring madam, drug user, and fixture

in the Phoenix drug trade, contacted police anonymously and claimed to have information about the

crimes, the assailants’ identities, and co-conspirators.

(Tr. 11/23/82 at 84–85, 87–88; ROA 1763 at 68–69.)

Harper later claimed that police officers fed her information about the Redmond homicides. (ROA 1741 at

7–8.)

7 Nina Marie Louie was a prostitute who sold drugs.

(Tr. 11/23/82 at 88–90, 105–07, 138–139.) The State

compensated Louie for her testimony. (Tr. 12/20/82 at

7–8; Tr. 11/23/82 at 64–68.)

8 “Merrill was a serial liar, a criminal, and had re-

ceived significant benefits from the State for his cooperation, including a deal that ensured he would not be

(continued . . .)

8

key role, the State absolved Merrill of responsibility

for the deaths. (Tr. 11/16/82 at 152–54.) Although

Campagnoni possessed property stolen from the Redmond home (Tr. 11/24/82 at 92–93; Tr. 11/16/82 at

126–27), he too was given full immunity for that offense (Tr. 11/29/82 a.m. at 14–15.)9

Moreover, the Maricopa County Attorney’s Office

did not have clean hands in this case. The jury learned

that investigator Dan Ryan committed serious misconduct including:

• taking Merrill “out of jail to have sex with his

wife,” Hooper, 985 F.3d at 621;

• “stopped his tape-recorded interview with

Merrill more than twenty times for no apparent reason other than to coach Merrill on

what he should say,” id.;

• “threatened a witness with physical violence,” id.;

• “directed a witness to lie to the police and

gave that witness money,” id.; and

• “lied to a probation officer to secure a reduced

sentence for Campagnoni.” Id.

sentenced to death for the Redmond murders and an

out-of-jail visit so he could have sex with his wife.”

Hooper v. Shinn, 985 F.3d 594, 620 (9th Cir. 2021).

Campagnoni had formed a robbery/burglary ring

with Merrill, McCall, and others and committed a

spree of crimes in October 1980. (Tr. 11/24/82 at 54–

55, 110–11.) The State allowed Campagnoni to plead

to one burglary and one theft; he was sentenced to ten

years of probation despite the fact that he had been

facing more than 100 years in prison. (Tr. 11/24/82 at

53–54.)

9

9

Not surprisingly, the jury struggled in deciding the

case. Twice they asked about reasonable doubt during

their several-days-long deliberations. (Tr. 9/15/83 at

45; ROA 1063); cf. United States v. Velarde-Gomez, 269

F.3d 1023, 1036 (9th Cir. 2001) (en banc) (holding that

prolonged jury deliberations weigh against a finding of

harmless error because “lengthy deliberations suggest

a difficult case” (internal quotation marks and brackets omitted)). “[I]f,” as is the case here, “the verdict is

already of questionable validity, additional evidence of

[even] relatively minor importance might be sufficient

to create a reasonable doubt.” United States v. Agurs,

427 U.S. 97, 113 (1976).

2. On direct appeal, the Arizona Supreme Court

found that the prosecution suppressed exculpatory evidence regarding benefits Merrill received, but denied

relief finding that suppression of evidence was “cumulative” to the known benefits he received. State v.

Bracy, 703 P.2d 464, 472-73 (Ariz. 1985). But more important than cumulative finding was the court’s reliance on “the strong eyewitness testimony of Mrs. Redmond” Id. at 473.

3. After challenging his convictions and sentence,

Petitioner exhausted his federal habeas proceedings

on March 21, 2022, when this Court denied certiorari.

Hooper v. Shinn, 142 S. Ct. 1376 (2022) (mem.). The

Arizona Supreme Court issued a warrant for execution

on October 12, 2022, setting the execution for November 16, 2022. Warrant of Execution, State v. Hooper,

No. CR-83- 0044-AP (Ariz. Oct. 12, 2022).

4. Despite Petitioner litigating the constitutionality

of his conviction for decades, it was not until a letter

dated October 28, 2022, sent to the Arizona Board of

Executive Clemency, that the Maricopa County Attorney’s Office revealed for the first-time that Mrs. Redman had excluded Petitioner as a perpetrator when

10

she was unable to identify him in a pre-trial photo

lineup. The prosecutors sent a second letter dated November 1 repeating the averments as to the photo

lineup. In its submission to the Arizona Board of Executive Clemency, the Maricopa County Attorney’s Office stated—twice—that Mrs. Redmond was shown a

photo lineup yet failed to identify Petitioner, thereby

implicitly excluding him as a perpetrator of the crime.

Pet. App. F at 11; Pet. App. G at 11. The prosecutor’s

belated admission flatly contradicts the state’s pretrial

and trial assertions that no such lineup had ever been

administered.

On November 4, 2022, Petitioner filed in Maricopa

County, a petition for postconviction relief alleging

that the State violated Brady v. Maryland, 373 U.S. 83

(1963); that the State knowingly presented false evidence at trial in violation of Napue v. Illinois, 360 U.S.

264, 271 (1959); and that Mrs. Redmond’s pretrial

identification was unduly suggestive, inadmissible,

and tainted her in court identification such that it

should have been precluded. Pet. App. I.

Petitioner also filed a motion to compel discovery of

the Maricopa County Attorney’s Office file––the same

file that Office relied on to twice to aver there had been

a photo lineup. Pet. App. H. The discovery motion was

denied, and a motion for reconsideration, was also denied. Pet. App. D, Pet. App. E, Pet. App. B at 2. Thus,

the state court suppressed discovery of the very evidence that would substantiate the claim On November

11

10, 2022, the Maricopa County Superior Court held an

evidentiary hearing. Pet. App. C. 10

During the hearing, Petitioner presented documentary evidence that attorneys from the Maricopa

County Attorney’s Office admitted that prior to traveling to Chicago for an in-person lineup up of Petitioner

and his black codefendant, Mrs. Redmond “had previously been unable to pick them out of a paper lineup.”

Pet. App. F at 11.

However, in response, the State’s attorney offered

no evidence to support his argument that the County

Attorney made a mistake in stating twice that Mrs.

Redmond had failed to identify Mr. Hooper in a paper

lineup. The State failed to present evidence supporting

its unsubstantiated argument, even though the prosecuting attorneys who signed the letters were present

in the courtroom throughout the evidentiary hearing.

The superior court asked the State’s attorney to

avow that the County Attorney’s representation was a

mistake and that no paper lineup exists. Pet. App. C

at 63. The State’s attorney avowed that he was “absolutely confident that there was no such photo lineup”

while at the same time admitted that he “can’t say for

– 100 percent sure” that he had “all of those documents” in his file. Pet. App. C at 63, 70–71. The State’s

10 Prior to raising the Brady/Napue claims, Petitioner

had filed a separate postconviction petition under Arizona’s newly discovered evidence law regarding eyewitness identification. See State v. Hooper, No. CR

0000-121686 (Maricopa Cnty. Sup. Ct. Oct. 31, 2022).

The state court consolidated the two petitions and

heard evidence supporting both. Petitioner, however,

is not seeking review of the denial of that petition for

relief in this Petition.

12

attorney also agreed that Petitioner’s claim will “rise

or fall” on the existence of the photo lineup and agreed

that if the evidence exists, it “certainly would be

enough to . . . dive right back into everything.” Pet.

App. C at 63.

5. The superior court issued an ordering denying Petitioner relief. Pet. App. B. In doing so, the court accepted the State’s avowal “that there is no evidence

that Marilyn Redmond was shown a printed lineup including Defendant before she identified him in person.” Pet. App. B. at 7. The court justified its denial of

relief because the claim was “lacking a factual basis.”

Pet. App. B. at 7.

6. On November 14, 2022, the Arizona Supreme

Court denied review. Pet. App. A. In its opinion, the

court found that Petitioner “has presented no evidence

to refute the Deputy County Attorney’s explanation

that she made the statement by mistake….” Pet. App.

A at 9. The court affirmed Petitioner’s claim lacked a

factual basis. Pet. App. A at 11-12.

REASONS FOR GRANTING THE PETITION

Petitioner was wrongfully convicted and has been

incarcerated on death row for over forty years. The

newly disclosed evidence substantiates what he’s argued for years: that Petitioner’s convictions were

based on false testimony.

The unique circumstances in this case present a

rare but egregious example of the breakdown of the

adversarial process in the criminal justice system. Petitioner’s trial was tainted by abusive police misconduct and unjust procedures used to secure a conviction

at all costs. It is uncontested that the state actors engaged in extraordinary misconduct, as the Arizona Supreme Court found on direct appeal, Bracy, 703 P.2d

13

at 472 (Ariz. 1985), and as summarized in part by the

Ninth Circuit, Hooper, 985 F.3d at 620-21.

Despite the state misconduct that occurred during

before and during trial, Petitioner’s convictions were

upheld based primarily on the strong testimony of

Mrs. Redmond. Because of the new admission from the

Maricopa County Attorney’s Office regarding that witness, Petitioner finally has proof to obtain the relief he

has been repeatedly and unjustly denied.

However, because the state courts imposed a heightened evidentiary standard that flies in the face of this

Court’s long-standing precedent, they created an impossible burden for defendants to meet. Given the serious nature of this case including the fact that a

wrongfully convicted man will be executed, the Court

should grant review. See, e.g., Kyles v. Whitley, 514

U.S. 419, 422 (1995) (explaining that review of Petitioner’s Brady claim was appropriate in as it is the

Court’s “duty to search for constitutional error with

painstaking care is never more exacting than it is in a

capital case”) (citation omitted).

This Court should grant review in this capital

case to reverse the Arizona Supreme Court’s decision defying this Court’s precendents and to

correct the fundamental miscarriage of justice

that resulted in Petitioner’s wrongful conviction.

This Court has long recognized the “special role

played by the American prosecutor in the search for

truth in criminal trials.” Strickler v. Greene, 527 U.S.

263, 281 (1999). The prosecutor is a represenative of

the State, “whose obligation to govern impartially is as

compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not

that it shall win a case, but that justice shall be done.”

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Id. (quoting Berger v. United States, 295 U.S. 78, 88

(1935)). “The very integrity of the judicial system and

public confidence in the system depend on full disclosure of all the facts.” United States v. Nixon, 418 U.S.

683, 709 (1974).

Consistent with these priciples, this Court’s well-established precedent holds that if the prosecution suppresses material evidence to a defendant’s guilt or

punishment, then it has violated the defendant’s due

process rights. Brady, 373 U.S. at 87. Nor can the

State knowingly present false testimony to secure a

conviction. Napue, 360 U.S. at 269; Giglio v. United

States, 405 U.S. 150, 153 (1972) (“[D]eliberate

deception of a court and jurors by the presentation of

known false evidence is incompatible with

‘rudimentary demands of justice.’”) (citing Mooney v.

Holohan, 294 U.S. 103, 112 (1935)).

The Brady rule functions in our criminal legal

system “to ensure that a miscarriage of justice does not

occur.” United States v. Bagley, 473 U.S. 667, 675

(1985). This Court has repeatedly made clear that

when a Brady violation does occur, the courts must

ask “not whether the defendant would more likely

than not have received a different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434

(1995).

Where the state suppresses evidence, a defendant

“need not show that he ‘more likely than not’ would

have been acquitted had the new evidence been admitted.” Wearry v. Cain, 577 U.S. 385, 392 (2016). Rather

“a reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the

trial.” Kyles, 514 U.S. at 434 (cleaned up). This Court

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has reiterated time and again that the “reasonable

probability” standard is not the same as the “more

likely than not” standard, but rather it is a lower

standard. Kyles, 514 U.S. at 434 (citing cases).

The standard provided in Napue is even lower: a new

trial is required if the false testimony “may have had

an effect on the outcome of the trial.” Napue, 360 U.S.

at 272.

In the proceedings below, the Arizona Supreme

Court has turned Brady and Napue on their heads by

allowing the state to ignore its obligation under this

Court’s long-standing precedents. Here, the state

courts required Petitioner to prove that the county attorneys were “mistaken” when they disclosed that the

sole eyewitness had failed to identify Petitioner in a

paper photo lineup. However, Petitioner had no way to

disprove the statement without having access to the

files, which he requested and was denied. This Court

has long rejected the rule that a ‘prosecutor may hide,

defendant must seek’” as being untenable “in a system

constitutionally bound to accord defendants due process.” Banks v. Dretke, 540 U.S. 668, 696 (2004).

Once the state has admitted that material exculpatory evidence exists, then it has a duty to provide a defendant access to that evidence. However, the Arizona

courts instead have required Petitioner to prove that

the State’s initial representation—that an exculpatory

paper photo lineup exists—is true, all the while denying access to the state’s prosecutorial files. This newly

created rule is incompatible with this Court’s bedrock

decisions that make clear that the burden is on the

state, not the defendant, to produce exculpatory evidence. If left to stand, the Arizona Supreme Court’s decision will result not only in the execution of a wrongfully convicted man but will apply to all future

Brady/Napue claims litigated in Arizona.

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Because this holding is incompatible with due process and the right to be free from cruel and unusual

punishment, this Court should grant review this Court

should grant review "to ensure that a miscarriage of

justice does not occur." Bagley, 473 U.S. at 675 ..

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JONM. SANDS

FEDERAL PUBLIC D EFENDER

KELLY CULSHAW*

AsSISTANT FEDERAL

PUBLIC DEFENDER

DISTRICT OF ARIZONA

850 West Adams Street

Suite 201

Phoenix, AZ, 85007

(602) 382-2816

Counsel for Petitioner Hooper

November 15, 2022

* Counsel of R ecord