Joint Appendix — Stewart v. Martinez-Villareal
Supreme Court brief1998
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- yoy 23 (997
In The
Supreme Court of the United States
October Term, 1997
+
TERRY L. STEWART, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTIONS, et al.,
Petitioners,
VS.
RAMON MARTINEZ-VILLAREAL,
Respondent.
¢
On Writ Of Certiorari To The United States
Court Of Appeals For The Ninth Circuit
+
JOINT APPENDIX
+
Grant Woops Frepric F. Kay
Attorney General Federal Public Defender
Paut J. McMuropie for the District
Chief Counsel of Arizona
Criminal Appeals Section Denise I. Younc*
Bruce M. Ferc* 91 E. Congress,
Assistant Attorney General Suite 130
400 W. Congress, Tucson, Arizona 85701
Bldg. S-315 Telephone: (520) 620-7050
Tucson, Arizona 85701-1367
Telephone: (520) 628-6504
Counsel for Petitioners
*Counsel of Record
Counsel for Respondent
Petition For Certiorari Filed August 18, 1997
Certiorari Granted October 14, 1997
nnn
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
No. 97-300 |
—————_}—-++—_}
STEWART vs. MARTINEZ-VILLAREAL
(No. 97-300) CONTENTS OF JOINT APPENDIX
Relevant Docket Entries
Extracts of Respondents’ Motion for Summary
Judgment (7/30/93)
Extracts of Opposition to Respondents’ Motion for
Summary Judgment (11/2/93)
Extracts of Reply to Response to Motion for Sum-
mary Judgment (12/17/93)
District Court Order and Judgment - pursuant to
Ninth Circuit instructions (2/28/9
Motion to Reconsider Order and Judgment - pur-
suant to Rule 59 (3/12/97)
District Court Order-denying reconsideration
(3/24/97)
Warrant of Execution-setting date of May 21, 1997
(4/15/97)
Motion for Expert Services, etc., with exhibits
(5/13/97)
District Court Order-appointing counsel, setting
hearing (5/14/97)
Response to Motion for Expert Services, etc., with
exhibits (5/15/97)
Reply to Response to Motion for Expert Services,
etc., with exhibits (5/15/97)
District Court Orders — denying motion for expert
services for lack of jurisdiction, and granting
certificate of appealability (5/16/97)
ii
STEWART vs. MARTINEZ-VILLAREAL
(No. 97-300) CONTENTS OF
JOINT APPENDIX - Continued
Combined Motion for Certificate of Probable
Cause; Motion for Remand to File Fed.R.Civ.P.
60(b) Motion; Motion for Leave to File Suc-
cessor Petition; Motion to Recall the Mandate
and Motion for Stay of Execution (5/16/97)
[internal Exhibits A and B omitted - duplicate
District Court Orders of 5/16/97 hovel
Opposition to Motion for Miscellaneous Relief
EA ech vhs Wendie 4000-054 be ebeeee cc
Reply to Opposition to Miscellaneous Relief
tt Shkahciceldecs aedeawesserceesecee:
Ninth Circuit Opinion - granting stay and order-
ing further briefing (5/19/97, 118 F.3d 625)....
Ninth Circuit Opinion-permitting filing of second
petition and transferring petition to D. Ct.
SE EN I svc ecccescsescccocceces
Page
RELEVANT DOCKET ENTRIES
STEWART vs. MARTINEZ-VILLAREAL (No. 97-300)
Extracts of Respondents’ Motion for Summary Judgment
(7/30/93)
Extracts of Opposition to Respondents’ Motion for Sum-
mary Judgment (11/2/93)
Extracts of Reply to Response to Motion for Summary
Judgment (12/17/93)
District Court Order and Judgment - pursuant to Ninth
Circuit instructions (2, 28/97)
Motion to Reconsider Order and Judgment - pursuant to
Rule 59 (3/12/97)
District Court Order —- denying reconsideration (3/24/97)
Warrant of Execution — setting date of May 21, 1997
(4/15/97)
Motion for Expert Services, etc., with exhibits (5/13/97)
District Court Order — appointing counsel, setting hear-
ing (5/14/97)
Response to Motion for Expert Services, etc., with
exhibits (5/15/97)
Reply to Response to Motion for Expert Services, etc.,
with exhibits (5/15/97)
District Court Orders - denying motion for expert ser-
vices for lack of jurisdiction, and granting certificate of
appealability (5/16/97)
Combined Motion for Certificate of Probable Cause;
Motion for Remand to File Fed.R.Civ.P. 60(B) Motion;
Motion for Leave to File Successor Petition; Motion to
Recall the Mandate and Motion for Stay of Execution
(5/16/97) [internal Exhibits A and B omitted - duplicate
District Court Orders of 5/16/97 above]
Opposition to Motion for Miscellaneous Relief (5/19/97)
Reply to Opposition to Miscellaneous Relief (5/19/97)
Ninth Circuit Opinion - granting stay and ordering fur-
ther briefing (5/19/97, 118 F.3d 625)
Ninth Circuit Opinion - permitting filing of second peti-
tion and transferring petition to D. Ct. (6/23/97, 118 F.3d
628)
GRANT WOODS
Arrorney GENERAL
BRUCE M. FERG
ASSISTANT ATTORNEY GENERAL
Criminat ApPpeats SECTION
402 West Concress, Room 315
Tucson, Arizona 85701-1356
TeLerHone: (602) 628-6504
(Stare Bar Numser 003544)
Arrorneys ror RESPONDENTS
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL,
PETITIONER,
-Vs-
SAMUEL A. LEWIS,
et al.,
CIV 86-296-TUC-RMB
MOTION FOR SUMMARY
JUDGMENT
(Filed July 30, 1993)
RESPONDENTS.
ee
Pursuant to Rules 5 and 11 of the Rules Governing
§ 2254 Cases, and Rule 56(b) of the Federal Rules of Civil
Procedure, Respondents oppose Petitioner's Amended
Petition for Writ of Habeas Corpus and request that this
Court dismiss the amended petition because it fails to
state a claim upon which relief can be granted, there are
no genuine issues of any material fact, and Respondents
are entitled to judgment as a matter of law. This response
is based on the following Memorandum of Points and
Authorities.
DATED this 30th day of July, 1993.
Respectfully submitted,
GRANT WOODS
ATTORNEY GENERAL
/s/Bruce M. Ferg
BRUCE M. FERG
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR RESPONDENTS
* . *
101. Competency To Be Executed.
It is asserted that Petitioner lacks the mental capacity
necessary for him to be constitutionally executed under
Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed.
2d 335 (1986). It appears that this claim is not ripe for
adjudication. A prisoner cannot be executed in Arizona
except pursuant to a warrant issued by the Arizona
Supreme Court. Arizona Rule of Criminal Procedure
31.17 provides:
c. Fixing the Date of Execution After a
Death Sentence is Affirmed. When a conviction
and sentence of death is affirmed, the Supreme
Court shall fix the time for execution of the sen-
tence and shall issue a warrant to the superinten-
dent of the state prison directing him to execute
the sentence. The superintendent shall make a
return on the warrant to the Supreme Court
showing the manner and time of execution.
There is no execution warrant outstanding with regard to
Petitioner. There is, however, a stay of execution issued
by this Court which is still in effect.
The Arizona Supreme Court appears to be applying
Criminal Rule 31.17(c) in such a way that no warrant for
execution will issue while a federal court stay is in effect.
Thus, after James Clark’s lengthy habeas corpus litigation
was concluded by the denial of a petition for certiorari,
the State filed a motion for issuance of an execution
warrant. (Exhibit A hereto.) However, Clark’s counsel
objected that a District Court stay of execution was still in
effect because the Ninth Circuit’s formal mandate had not
yet been issued. (Exhibit B.) The Arizona Supreme Court
refused to issue the warrant because of the existence of
the stay. (Exhibit C.) After the Ninth Circuit mandate
issued, effectively dissolving the stay, the State renewed
its motion for the issuance of a warrant, and only then
was the warrant issued. (Exhibits D, E.)
Before a federal court can consider a legal claim,
there must be a “case or controversy” under Article III of
the Constitution. Whitmore v. Arkansas, 495 U.S. 149, 110 S.
Ct. 1717, 1722, 109 L. Ed. 2d 135 (1990).
To establish an Art. III case or controversy, a
litigant first must clearly demonstrate that he
has suffered an “injury in fact.” That injury, we
have emphasized repeatedly, must be concrete
in both a qualitative and temporal sense. The
complainant must allege an injury to himself
that is “distinct and palpable,” Warth, supra, 422
U.S., at 501, 95 S.Ct., at 2206, as opposed to
merely “[a]bstract,” O'Shea v. Littleton, 414 U.S.
488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974),
and the alleged harm must be actual or immi-
nent, not “conjectural” or “hypothetical.” Los
Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct.
1660, 1664-1665, 75 L.Ed.2d 675 (1983).
110 S. Ct. at 1723. “Allegations of possible future injury
do not satisfy the requirements of Art. III. A threatened
injury must be ‘certainly impending’ to constitute injury
in fact.” Id. at 1724-25. However, “It is just not possible
for a litigant to prove in advance that the judicial system
will lead to any particular result in his case.” Id. at 1725.
The Art. III requirements will not be relaxed just because
litigation involves the death penalty. Id. at 1726.
In sum, Petitioner is not now facing and will not face
execution for the foreseeable future. No warrant of execu-
tion can be expected to issue during the pendency of this
habeas litigation, which in all likelihood will be a matter
of years. Although Petitioner has a right not to be exe-
cuted while incompetent, he is not now looking at an
actual execution date, and competency is obviously a
matter that can fluctuate over time. Therefore, his claim
really is speculative and conjectural - a mere “possible
future injury.” Since such a claim is outside the jurisdic-
tion of the Court, it must be dismissed. Cf. Fernandez-
Collado v. I.N.S., 644 F.Supp 741 (D. Conn. 1986), aff'd
without op., 857 F.2d 1461 (2d Cir. 1987) (habeas corpus
petition denied because, although INS had detainer on
petitioner, he could not be deported until after service of
prison term, and hence was not yet in INS custody;
therefore, his requested relief was not yet available). This
Court cannot grant relief from a situation that may never
occur. Only if a warrant for his execution issues, and if he
still claims to be incompetent at that time, will there be a
jurisdictionally sufficient case or controversy, and that
will be the time to litigate the issue.
* * .
7
BRUNER & BOWMAN, P.C.
78 West Cushing Street
Tucson, Arizona 85701
602-624-8000
Attorneys for Petitioner
By: Sean Bruner, Bar #007296
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL, No. CIV 86-296-TUC-RMB
OPPOSITION TO
RESPONDENTS’ MOTION
FOR SUMMARY
JUDGMENT
(Filed November 2, 1993)
Petitioner,
SAMUEL A. LEWIS,
et al.
]
]
]
]
vs. ]
]
]
J
Respondents.
]
* * »
91. Competency to stand trial.
After arguing preclusion and abuse of the writ, topics
which have been addressed elsewhere in this memoran-
dum, respondents argue that petitioner is merely suffer-
ing from “prison psychosis” and is not and was not
incompetent. (M.S.J. at 39). Respondents claim that, on
the record, petitioner is not incompetent or insane, citing
and quoting Boag v. Raines, 769 F.2d 1341 (9th Cir. 1985).
(M.S.J. at 39).
Boag is distinguishable, however. In the first place,
that case was the third appeal on the issue of incompe-
tency, and the defendant’s competency in Boag was sub-
stantively addressed, contrary to the position advocated
by respondents herein. “In a habeas proceeding, a peti-
tioner is entitled to an evidentiary hearing on the issue of
competency to stand trail [sic] if he presents sufficient
facts to create a real and substantial doubt as to his
competency, even if those facts were not presented to the trial
court. Boag, 769 F.2d at 1343, citing, Steinsvik v. Vinzant,
640 F.2d 949, 954 (9th Cir. 1981) (emphasis added). Sec-
ondly, and more significantly, there was no professional
psychologist’s opinion presented in Boag that he was, in
fact, incompetent. In the instant case, Dr. Geffen has
unequivocally found that petitioner was incompetent.
Finally, the issue of whether the petitioner’s mental ill-
ness was presented in mitigation to the sentencing judge
or whether he was not guilty by reason of insanity was
not an issue in Boag, or at least the opinion does not
address those concerns.
Respondents’ argument ignores the fact that they
tried everything in the book to prevent petitioner from
being examined by an independent mental health expert.
After first stressing that petitioner’s claim to incompe-
tence was an unexhausted claim, respondents then
argued in state court that only by means of the statutory
scheme set forth in A.R.S. § 13-4021 et seq. could peti-
tioner’s mental condition be inquired into. Since that was
a ministerial duty, respondents argued, petitioner had no
judicial remedy, and was dependent exclusively upon the
warden’s assessment of petitioner’s competence. Need-
less to say the warden concluded that petitioner was
sane, despite a history of mental illness in prison, and
years of being prescribed psychotropic medication by
prison doctors notorious for not prescribing medicine for
prisoners. The matter, according to respondents, was
closed. Incredibly, the state superior court adopted the
state’s reasoning, despite the mandate of Ford v. Wain-
wright, 477 U.S. 399 (1986).
Upon return to federal court, respondents again zeal-
ously opposed the appointment of an independent men-
tal health expert, this time on the grounds that the
Arizona statute will change in 1994, and this court should
wait and see what happens after the law changes.
Respondents now argue a totally new theory in their
motion for summary judgment, that the issue which
forced this case back to state court, incompetence to be
executed, is not ripe. (M.S.J. at 43). As that argument was
never “exhausted” in state court, if anything should be
precluded, it is that argument.
In conclusion, for respondents to have adamantly
prohibited any meaningful review and evaluation of peti-
tioner’s mental health and now argue that the record is
incomplete, and, therefore, that they win on summary
judgment, is unfair, incorrect, and would amount to a
gross denial of due process should it be granted. Only
after a full and fair opportunity to examine and cross-
examine those persons claiming to have expertise to
make such a diagnosis can a just decision be made.
Respondents’ counsel is no more qualified to give such an
opinion than petitioner’s counsel. The difference is that
petitioner’s counsel never attempted to diagnose peti-
tioner; he merely pointed out sufficient disturbing obser-
vations to merit further inquiry by mental health
10
professionals who could give expert opinions on the sub-
ject.
Respondents state that, “Claims asserting incompe-
tence at trial are subject to preclusion on the basis of
being abusive or procedurally defaulted, even when the
petitioner faces a death sentence,” citing, Clanton v.
Muncy, 845 F.2d 1238 (4th Cir. 1988) and Bainter v. Trickey,
932 F.2d 713 (8th Cir. 1991). The facts of Clanton are
distinguishable. The issue therein was whether a request
for an “11th hour” stay of execution should be granted.
The Court held that the claim was abusive since it was
the same claim, under a different label, which had been
substantively addressed on the merits in a prior habeas
petition. The claim had to do with childhood abuse which
was not brought out at sentencing. Having raised the
claim before, and receiving a ruling on the merits, Clan-
ton again tried to raise the same claim, this time under
the label of incompetence during sentencing, claimaint
[sic] that he failed to tell his attorney of the childhood
abuse because he was incompetent. The Clanton case,
therefore, is factually and procedurally distinguishable
from the instant case.
Trickey was not a death penalty case, contrary to the
apparent insinuation by respondents. Although it is true
that Trickey held that the defendant's claim of incompe-
tence was procedurally barred, respondents herein fail to
point out that extensive evidence was taken in Trickey on
the issue of whether his counsel was ineffective for fail-
ing to raise the competence issue. In that respect, Trickey
favors petitioner’s position herein.
11
* * *
101. Competency to be executed.
Comment has already been made herein as to the
incredible position that respondents are now taking
regarding this issue: that it is not ripe. Not only is this
claim new and bizarre, but it would be unworkable.
Nothing in the Ford v. Wainwright, supra, decision sup-
ports this leap in logic. In fact, the opposite is the only
workable solution: if petitioner is incompetent now, he
cannot be executed until he regains competency. To hold
otherwise would place an incredible burden on the sys-
tem. It is also interesting to note that the Arizona scheme
set forth in A.R.S. § 13-4021 et seq., so championed by
respondents up till now, has no such limitations as those
now suggested by respondents.
Analogy can be made to the situation of a defendant
found incompetent to stand trial. The competency deter-
mination is made at the outset, not the day of trial. If and
when competency is restored, the trial proceeds. Sim-
ilarly, if petitioner is presently incompetent to be exe-
cuted, a finding needs to be made.
+ + *
12
GRANT WOODS
ATTORNEY GENERAL
BRUCE M. FERG
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
402 W. Concress, Room 315
Tucson, ARIZONA 85701-1367
TELEPHONE: (602) 628-6504
(State BAR Numser 003544)
ATTORNEYS FOR RESPONDENTS
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ-
)
VILLAREAL, ) CIV 86-296-TUC-RMB
)
PErmonan, ) REPLY TO RESPONSE
-vs- ) TO MOTION FOR
SAMUEL A. LEWIS, et al., ‘ SUMMARY JUDGMENT
RESPONDENTS. ) (Filed December 17,
)
1993)
Petitioner’s Response, as demonstrated in the
attached Memorandum, fails to prove any error in the
Motion for Summary Judgment. Respondents therefore
reiterate their request that this Court dismiss the petition
because it fails to state a claim upon which relief can be
granted, there are no genuine issues of material fact, and
Respondents are entitled to judgment as a matter of law.
13
DATED this 17th day of December, 1993.
Respectfully submitted,
GRANT WOODS
ATTORNEY GENERAL
/s/ Bruce M. Ferg
BRUCE M. FERG
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR RESPONDENTS
* * *
91. Alleged Incompetence To Stand Trial.
In the Petition it was asserted (based on little more
than conclusory remarks about mental problems Peti-
tioner allegedly has now) that he was incompetent to
stand trial or be sentenced. (Petition at 40-41.) Respon-
dents answered in several ways. First, it was argued that
this claim should not even be considered on its merits,
because it is both abusive (not having been presented in
the first habeas petition) and procedurally precluded
(having been defaulted by the failure to present it to the
state courts at any time before the third Rule 32 petition).
(Summary Judgment Motion at 36.) Attempting to defuse
these preclusion arguments, Petitioner has tried to distin-
guish the decisions offered by Respondents as support
for their position that claims of incompetency to be tried
can be precluded, even in capital cases. He would like to
limit Clanton v. Muncy, 845 F.2d 1238 (4th Cir.), cert.
denied, 485 U.S. 1000 (1988), a capital case in which the
federal court refused to reach the merits of a claim of
incompetency at sentencing, to clearly abusive situations
14
where essentially the same claim had been litigated on
the merits in a previous federal habeas petition.
(Response at 61-62.) Such abusiveness, however, was only
one prong of the court’s multi-based ruling (845 F.2d at
1240-41); it further concluded that the incompetency
claim “is also barred by reason of the procedural default
found by the state habeas court.” 845 F.2d at 1241. That is
precisely what happened here: incompetency at trial was
raised by Paragraph 87 of the third Rule 32 Petition.
(P.C.R. 3 at 35.) The state argued that all the claims in that
petition, with the exceptions of Davis’ alleged ineffective-
ness, good prison behavior as a new mitigating factor,
and incompetency to be executed, were procedurally pre-
cluded. (Id. at 71-93.) The trial court explicitly agreed
with the state’s arguments in summarily dismissing that
petition. (Id. at 138-40.) Therefore, this case is governed
by Clanton v. Muncy, and the claim of incompetency dur-
ing trial is precluded from consideration by this Court.
As additional support for its position that the claim
of incompetency at trial is procedurally barred, Respon-
dents cited Bainter v. Trickey, 932 F.2d 713 (8th Cir. 1991).
Petitioner, as usual, attempts to cast Respondents in a bad
light, by noting that Trickey “was not a death penalty
case, contrary to the apparent insinuation by respon-
dents.” (Response at 62.) However, the Summary Judg-
ment Motion at 36 clearly distinguished between Clanton,
to which was affixed the explanatory parenthetical “(cap-
ital case)”, and Trickey, which was given none such. More-
over, Petitioner is forced to concede the point for which
Trickey was cited; “it is true that Trickey held that the
defendant’s claim of incompetence was procedurally
barred.” (Response at 62.) Petitioner nonetheless seeks to
15
distinguish Trickey away on the basis that an evidentiary
hearing was held in that case on an ineffective assistance
of counsel claim. (Id.) This argument avoids the point,
which is that a claim of actual incompetence to be tried
(i.e., the question under discussion at this point in the
pleadings) was indeed ruled to be procedurally barred.
972 F.2d at 716. Moreover, the evidentiary hearing on
ineffectiveness in Trickey was held by the state court (not
the federal court), and no issue of procedural default as to
that claim existed. Therefore, Trickey does support the
preclusion of the claim of actual incompetence to be tried,
but it does not support Petitioner’s position that he is
entitled to an evidentiary hearing before this Court.
Since the claim is so clearly precluded, Respondents
continue to maintain that this Court need not (indeed,
should not) examine it any further.
We need not reach the merits to assure
Campbell, and ourselves, that his claims have
been fully considered. Indeed, upon determin-
ing that claims raised in a habeas petition are
successive or abusive, we may not do so; respect
for the finality of convictions, and the signifi-
cant costs of federal habeas review, forbid it.
[A] court may not reach the merits of: (a)
Successive claims which raise grounds identi-
cal to grounds heard and decided on the
merits in a previous petition; (b) new
claims, not previously raised which consti-
tute an abuse of the writ; or (c) procedurally
defaulted claims in which the petitioner failed
to follow applicable state procedural rules
in raising the claims.
16
a Wain .. OS _ ss EOE
2514, 2518, 120 L.Ed.2d 269 (1992) (citations
omitted).
Campbell v. Blodgett, 982 F.2d 1321, 1324-25 (9th Cir. 1992)
(emphasis in original). However, lest the Court be con-
cerned about the fairness of its proceedings, the merits
will be briefly noted.
The Summary Judgment Motion at 36-40 pointed out
that there is a very high standard of proof which a habeas
petitioner who claims actual incompetence at trial must
satisfy in order for that claim to be considered by the
federal courts. As an example, Respondents pointed to
Boag v. Raines, 769 F.2d 1341 (9th Cir. 1985), cert. denied,
474 U.S. 1085 (1986); there the Court of Appeals found
insufficient “(1) five attempted suicides between 1954 and
1965; (2) repeated head injuries; (3) a story of bizarre
behavior; and (4) alcoholism. Boag also relies on the
report of a prison psychiatrist, made four months before
trial, which stated that he had a ‘sociopathic personality
disturbance, anti-social reaction,’ and the statement of a
California judge, made six months before trial, that Boag
needed ‘intensive psychiatric treatment’.” 769 F.2d at
1343. Petitioner attempts to distinguish Boag away on the
premise that there “the defendant’s competency ... was
substantively addressed.” (Response at 59.) If Petitioner
intends to convey that Boag received a federal evidenti-
ary hearing on his claim he is clearly wrong. The Ninth
Circuit noted that a habeas petitioner “is entitled to an
evidentiary hearing on the issue of competency to stand
trial if he presents sufficient facts to create a real and
substantial doubt about his competency . . . ” 769 F.2d at
1343. It then reviewed the evidence noted above which
17
Boag offered (which had not been presented to the state
courts), after which it stated, “We conclude that the dis-
trict court properly found that the new evidence pre-
sented by Boag did not raise a real and substantial doubt
as to his competency.” 769 F.2d at 1344. Thus, there is a
high threshold level of proof to be crossed before an
evidentiary hearing will be granted, and Boag failed to
satisfy that initial burden. Hence, Boag is not distinguish-
able, and clearly militates against granting Petitioner an
evidentiary hearing or any other relief.
Petitioner continues to bewail the fact that Respon-
dents have insisted that he follow appropriate procedures
to present his claims, even resorting to statements unsup-
ported by the record, such as the supposed notoriety of
prison doctors for not prescribing medicine for prisoners,
and the asserted “fact” that Respondents “tried every-
thing in the book to prevent petitioner from being exam-
ined by an independent mental health expert.” (Response
at 60-61.) Respondents have never opposed examination
of Petitioner by an independent expert —- something he
has been free to obtain at any time; opposition has only
been to attempts to present claims in the wrong forum
and to spending taxpayer money for examinations unless
they were clearly authorized and likely to be relevant.
For such good faith litigation positions no apology is
necessary and none is tendered; Petitioner has no special
dispensation to ignore the rules just because this is a
capital case. Murray v. Giarratano, 109 S. Ct. at 2770-71.
18
101. Competency To Be Executed.
Respondents have suggested that this issue is not
ripe for decision, because no execution can take place
without the issuance of a warrant of execution, no such
warrant concerning Petitioner presently exists, and the
Arizona Supreme Court apparently is not issuing such
warrants concerning defendants who are protected (as is
Petitioner) by a federal stay of execution. Moreover, men-
tal competency, of course, can change over the course of
time. Thus, the claim presents nothing more than a possi-
ble future injury, which is insufficient to satisfy the Art.
III “case or controversy” requirement, and there currently
is no issue over which this Court properly has jurisdic-
tion. (Summary Judgment Motion at 43-45.) Petitioner
answers that nothing in Ford v. Wainwright, 477 U.S. 399,
106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), supports this
position. (Response at 65.) On the other hand, neither
does anything in Ford militate against it. The defendant in
Ford was subject to a live, unstayed warrant of execution
at the time he invoked the jurisdiction of the federal
courts (477 U.S. at 404), and the issues raised by the case
were the existence of authority to execute the insane and
the kind of state factfinding procedures necessary to
resolve competency questions. Thus, there was no basis
for a ripeness question and Ford did not address it
because it simply never came up.
Petitioner makes no attempt to answer the authority
and reasoning presented by the Motion For Summary
Judgment, and seeks to dismiss its argumentation with a
conclusory remark that it is “unworkable.” (Response at
65.) It is Petitioner's approach, however, which is
unworkable; rather than have a single adjudication of
19
competency, at a time when all his other claims have been
resolved and a warrant has been issued, so that an execu-
tion actually is imminent within a reasonable period of
time, he advocates “plac[{ing] an incredible burden on the
system” by having one adjudication now, plus at least
one more, after all the years it typically takes to resolve
the other claims have transpired. Even in Petitioner's
competency to stand trial analogy, speedy trial guaran-
tees will insure that a competency determination is made
within a reasonably short time before the relevant pro-
ceeding (the trial) occurs; no such guarantees exist in this
case. To do a competency determination now would be
futile, because it will certainly have to be repeated when
the time for execution finally arrives.
The Court should therefore conclude that this claim
is not now ripe for determination. Should the Court none-
theless deem it proper to rule on the issue it should hold
the claim meritless. The only support offered is the Gef-
fen report, which has already been shown to be so rid-
dled with flaws as to be incapable of supporting a finding
of incompetence, especially in light of the opposite con-
clusion reached by the 1991 evaluation (Exhibit H) and
the information about Petitioner's manipulative invoca-
tion of purely subjective mental complaints disclosed by
the prison records. Therefore, if the merits of the question
are considered, the only proper resolution would be
denial.
20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL
NO. CIV
86-296 TUC RMB
Petitioner,
ORDER
(Filed Feb. 28, 1997)
SAMUEL A. LEWIS et al.,
Respondents.
)
)
)
)
vs. )
)
)
)
)
Pursuant to instructions of the Court of Appeals for
the Ninth Circuit set forth in Martinez v. Lewis, 80 F.2d
1301 (9th Cir.), cert. denied, __ U.S. __, 117 S.Ct. 588, 136
L.Ed.2d 517 (1996),
IT IS ORDERED that Petitioner Ramon Martinez-
Villareal’s Claim 4.16 regarding competency to be exe-
cuted is DENIED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that all remaining
claims of the Petition are DENIED WITH PREJUDICE.
DATED: February 27, 1997 /s/ Richard M. Rilby
Richard M. Bi.oy
United States
District Court
21
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL,
JUDGMENT IN
A CIVIL CASE
Case NO.
CV-86-296-TUC-RMB
(Filed February 28, 1997)
Plaintiffs
vs.
SAMUEL A. LEWIS,
ET AL.,
Defendants,
me me ee ee ee ee ee ee ee ee”
DECISION BY COURT. This action came under con-
sideration before the Court. The issues have been consid-
ered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that Petitioner
Ramon Martinez-Villareal’s Claim 4.16 regarding compe-
tency to be executed is DENIED WITHOUT PREJU-
DICE.
IT IS FURTHER ORDERED that all remaining
claims of the Petition are DENIED WITH PREJUDICE.
February 28, 1997 RICHARD H. WEARE
Date CLERK
/s/ Maureen Gorski
(By) Deputy Clerk,
Maureen Gorski
cc: OB, RMB, BRUNER, FERG, DPLC, DESSAINT, ACRP
22
BRUNER & BOWMAN, P.C.
78 West CuShing Street
Tucson, Arizona 85701
602-624-8000
Attorneys for Petitioner
By: Sean Bruner, Bar #007296
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ- NO. CIV 86-296-TUC-RMB
]
VILLARE |
we MOTION TO RECONSIDER
Petitioner, ORDER AND JUDGMENT
TERRY STEWART, ] (Filed March 12, 1997)
et al., ]
Respondents. :
Pursuant to this Court’s order and judgment entered
February 28, 1997, petitioner’s claim 4.16 regarding com-
petency to be executed was denied without prejudice.
Petitioner hereby moves this court to reconsider that
aspect of its order, pursuant to Rule 59, Fed.R.Civ.P.
Petitioner directs the Court’s attention to certain sec-
tions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), amending 28 U.S.C. § 2254.
In that regard, § 2244(b)(1) states: “A claim presented
in a second or successive habeas corpus application
under section 2254 that was presented in a prior applica-
tion shall be dismissed.” Further on in that section, sub-
paragraph (b)(3)(A) states: “Before a second or successive
application permitted by this section is filed in the dis-
trict court, the applicant shall move in the appropriate
23
court of appeals for an order authorizing the district
court to consider the application.”
The Court of Appeals, however, is limited in the type
of successor petitions that may be granted. The applicable
portion of § 2255 states: “A second or successive motion
must be certified as provided in section 2244 by a panel
of the appropriate court of appeals to contain — (1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish
by clear and convicning [sic] evidence that no reasonable
factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court that was previously unavailable.”
In other words, petitioner’s claim to incompetence to
be executed would be barred notwithstanding this
Court’s dismissal “without prejudice.” This would con-
travene the clear intention of the parties, violate due
process under the Fifth and Fourteenth Amendments,
and constiute [sic] an unconstitutional suspension of the
writ of habeas corpus in violation of Art. I, Sec. 9 of the
Constitution.
Petitioner did file his claim in his last petition, prior
to the passage of the AEDPA. It was the State that sug-
gested that the claim was not ripe since the Arizona
Supreme Court had not yet issued a warrant of execution,
and this Court agreed. (Order and Memorandum Deci-
sion at 18-19). The Ninth Circuit concurred that the claim
was premature. Martinez-Villareal v. Lewis, 80 F.3d 1301,
1307 (9th Cir. 1996).
24
In light of the understanding of all parties that peti-
tioner’s claim to incompetence to be executed would
await a future hearing, it would be a cruel injustice to
now find that petitioner’s challenge was barred as a
successive claim. In Lindh v. Murphy, 96 F.3d 856 (7th Cir.
1996) the Seventh Circuit found that the AEDPA applied
to cases which were pending at the time it took effect.
The Ninth Circuit reached the opposite conclusion in
Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996). The Supreme
Court granted certiorari in Lindh v. Murphy on January 10,
1997 to resolve this issue. In the interest of fairness and in
an abundance of caution, petitioner asks that this Court
reconsider its order dismissing his claim to incompetence
to be executed and amend its order of February 28, 1997
holding this issue in abeyance pending the outcome of
the current proceedings in the Superior Court in Pinal
County to determine compentence [sic] to be executed
under A.R.S. § 13-4022.
Respectfully submitted March 11, 1997.
/s/ Sean Bruner
Sean Bruner
Attorney for Petitioner
Copy mailed/delivered this date to:
Bruce M. Ferg
Assistant Attorney General
402 West Congress
3rd Floor
Tucson, Arizona 85701
25
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL NO. CIV 86-296 TUC RMB
Petitioner,
vs. ORDER
)
)
)
)
)
SAMUEL A. LEWIS) (filed March 24, 1997)
et al., )
)
)
)
Respondents.
Petitioner files under Fed. R. Civ. P. 59, a “Motion to
Reconsider Order and Judgment” wherein he seeks this
Court to hold in abeyance his claim that he is incompe-
tent to be executed. Petitioner cites no authority for such
action except to warn the Court that the premature claim
could be precluded as a successive claim by the Antiter-
rorism and Effective Death Penalty Act of 1996
(“AEDPA”). Petitioner requests that in the interest of
fairness and in an abundance of caution, that this Court
amend its order to hold this single claim in abeyance
pending the outcome of the proceedings in Superior
Court in Pinal County to determine whether Petitioner is
competent to be executed under A.R.S. § 13-4022.
After considering Petitioner’s arguments, the Court
finds no reason to grant the requested relief. That particu-
lar claim could not even be construed as an unexhausted
claim since it was not ripe when it was presented. For this
26
reason, the Court dismissed it without prejudice. There-
fore, the Court has no intention of treating the “incompe-
tency to be executed” claim as a successive petition.
Accordingly,
IT IS ORDERED that Petitioner’s “Motion to Recon-
sider Order and Judgment” in DENIED.
DATED this 24 day of March, 1997,
/s/ Richard M. Bilby
Richard M. Bilby
Senior United States
District Judge
27
SUPREME COURT OF ARIZONA
STATE OF ARIZONA, Supreme Court
No. CR-83-0207-AP
was Court of Appeals
RAMON MARTINEZ- No. 2 CA-CR 3160
VILLAREAL,
Appellant. ) Nos. 4541-A, 4653-A
and 4628-A
WARRANT OF EXECUTION
)
)
)
)
) Santa Cruz County
)
)
)
‘ (Filed April 15, 1997)
The appeal in the above-entitled cause was heard and
fully considered by this Court on the 12th day of April,
1984 and having finally decided the cause, this Court on
the 10th day of July, 1985, did affirm the judgment of the
Superior Court of Santa Cruz County, State of Arizona,
and did file its opinion, which opinion is now of record in
this Court, is still in effect, and, as shown by this Court's
record, has not been stayed or affected by any subsequent
decision of this or any other Court.
WHEREAS, a Warrant of Execution issued by this
Court on March 12, 1997 was quashed by order in Mar-
tinez-Villareal v. Johnson, No. CV-97-0151-SA, dated
April 8, 1997, which order further directed that the execu-
tion be set for May 21, 1997,
NOW THEREFORE, IT IS ORDERED, that Wednes-
day, the 21st day of May, 1997, be and the same is hereby
fixed as the time when the judgment and sentence of
death pronounced upon the appellant, RAMON MAR-
TINEZ-VILLAREAL, by the Superior Court of Santa Cruz
28
County, State of Arizona, shall be executed by adminis-
tering to RAMON MARTINEZ-VILLAREAL an intra-
venous injection of a substance or substances in a lethal
quantity sufficient to cause death, except that RAMON
MARTINEZ-VILLAREAL shall have the choice of either
lethal injection or lethal gas.
IT IS FURTHER ORDERED that the Clerk of this
Court forthwith prepare and certify under his hand and
the seal of this Court a full, true and correct copy of this
Warrant, and cause the same to be delivered to the Direc-
tor of the Department of Corrections and the Superinten-
dent of the State Prison, at Florence, Arizona, and the
same shall be sufficient authority to them for the execu-
tion of the appellant, RAMON MARTINEZ-VILLAREAL,
as commanded by the judgment and sentence of death
pronounced against RAMON MARTINEZ-VILLAREAL,
by the Superior Court of Santa Cruz County, State of
Arizona, on the 20th day of May, 1983.
Upon the execution of RAMON MARTINEZ-VIL-
LAREAL, the Superintendent shall, pursuant to Rule
31.17(c), Rules of Criminal Procedure, forthwith make a
return upon this Warrant to the Supreme Court of Ari-
zona, which return shall show the time, mode and man-
ner of execution.
Dated in the City of Phoenix, Arizona, at the Arizona
Courts Building, this 15th day of April, 1997.
/s/ Thomas A. Zlaket
THOMAS A. ZLAKET, Chief Justice
/s/ Charles E. Jones
CHARLES E. JONES, Vice Chief
Justice
29
/s/ Stanley G. Feldman
STANLEY G. FELDMAN, Justice
/s/ James Moeller
TAMES MOELLER, Justice
/s/ Frederick J. Martone
LR RICK . MARTONE, Justice
STATE OF ARIZONA
SUPREME COURT
I, NOEL K. DESSAINT, Clerk of the Supreme Court
of the State of Arizona, hereby certify the above and
foregoing (2 pages) to be a full and true copy of the
WARRANT OF EXECUTION of RAMON MARTINEZ-
VILLAREAL, filed by said Supreme Court in the said
above-entitled action on this 15th day of April, 1997.
IN WITNESS WHEREOF, I hereunto set my hand and
affix the official seal of the Supreme Court of the State of
Arizona, this 15th day of April, 1997.
/s/ Noel K. Dessaint,
NOEL K. DESSAINT, CLERK
Fredric F. Kay
Federal Public Defender
Denise I. Young (Arizona Bar No. 007146)
Dale A. Baich (Ohio Bar No. 0025070)
222 North Central Avenue, Suite 810
Phoenix, Arizor. *5004
602.379.3670
602.379.3681 facsimile
Sean D. O’Brien (Missouri Bar #30116)
Public Interest Litigation Clinic
5319 Rockhill Road
Kansas City, Missouri, 64110
816.363.2795
816.363.2799 facsimile
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL,
Petitioner,
CAPITAL CASE
EXECUTION
SCHEDULED FOR
5-21-97
No. CIV-86-296 TUC RMB
MOTION FOR EXPERT
SERVICES AND/OR
ACCESS TO CLIENT
AND APPOINTMENT OF
COUNSEL
(Filed May 13, 1997)
vs.
TERRY STEWART et al.,
Respondents.
ee ee
Petitioner Ramon Martinez-Villareal, through counsel
specially appearing herein, and pursuant to 21 U.S.C.
§ 848(q)(4) and (9), moves this Court for appointment of
necessary experts, assistance and/or access to his client
31
to allow this Court to properly determine his competency
to be executed. The following facts support this motion:
1. Petitioner Ramon Martinez-Villareal is mentally
retarded and he is unaware of his pending execution and
the reasons for it. Mr Martinez-Villareal, through counsel,
alleged Mr. Martinez-Villareal “did not and does not have
the mental capacity to appreciate the nature of his sen-
tence.” Amended Petition for Writ of Habeas Corpus
(“Habeas Petition”), filed Mar. 26, 1993 at { 4.16' Since
Mr. Martinez-Villareal did not and does not have the
mental capacity to appreciate the nature of his sentence,
under Ford v. Wainwright, 477 U.S. 399 (1986), his rights
under the Eighth and Fourteenth Amendment would be
violated if he is executed. Id. at { 106.
2. The Court issued a writ of habeas corpus. Entry,
Oct. 21, 1994 [Doc. No. 137]. The Court found that Mr.
Martinez-Villareal did not receive the effective assistance
of counsel and vacated the sentence of death. Id., Order
and Memorandum Opinion, Oct. 21, 1994 [Doc. No. 136],
at 30.2 As to the challenge to Mr. Martinez-Villareal’s
1 Facts supporting the claim were outlined in {{ 25
through 90 of the habeas petition.
2 The Court's was based, in part, on the testimony
of Dr. Garcia-Bunuel. Order and Memorandum Opinion, Oct.
21, 1994 at 29. Dr. Garcia-Bunuel opined that Mr. Martinez-
Viliareal suffers from paranoid and he had this
mental disease since he was an adolescent. Id. at 26. The Court
also observed:
Physically, Martinez-Villareal is a small man, no more
than five feet tall. During the proceedings his face
was devoid of expression; his hair was greasy and
stood upward in peaks. His eyes were downcast and
32
competency to be executed, the Court ruled “[a]t present,
there is no execution warrant outstanding as to Martinez-
Villareal since this Court issued its stay. Thus, Martinez-
Villareal is not facing execution nor with appellate review
will he face likely execution in the near future. This claim
is premature and denied without prejudice.” Order and
Memorandum Opinion, Oct. 21, 1994 at 19.
3. On appeal, the Ninth Circuit found that the writ
was improperly granted. Martinez-Villareal v. Lewis, 80
F.3d 1301, 1305 (9th Cir. 1996). The court based its deci-
sion on a procedural bar to Mr. Martinez-Villareal’s claim
of ineffective assistance of counsel. Id. However, the court
of appeals explicitly stated, “[t]o eliminate any ambiguity,
we reiterate that the claim of Martinez-Villareal’s current
incompetence was denied as premature by the district
court. That decision was not challenged on appeal. Our
instruction to enter judgment denying the petition is not
intended to affect any later litigation of that question.” Id.
at 1309, n.1. On remand, this Court entered an order
denying, without prejudice, Mr. Martinez-Villareal’s
competency challenge. Order and Entry, Feb. 28, 1997.3
[Doc. Nos. 152 and 153.]
once he was led into the courtroom, his only
movement was to remove the interpreter’s
headphones. Other than the effort it took to perform
this task, [Martinez-Villareal] was essentially
catatonic for the duration of the two day hearing.
Id. at 14-15.
° The Court, through a subsequent order, stated that the
reason the competency to be executed claim was dismissed was
because “it was not ripe when it was presented. For this reason,
the Court dismissed it without prejudice. Therefore, the Court
has no intention of treating the ‘incompetency to be executed’
33
4. On April 15, 1997, the Arizona Supreme Court
issued an execution warrant setting Mr. Martinez-Vil-
lareal’s execution for 12:05 am on Wednesday, May 21,
1997. State v. Martinez-Villareal, No. CR-83-0207 AP (Ariz.
Apr. 15, 1997). [Exhibit A.] A hearing was held in the
Pinal County Superior Court on April 6, May 6, 7 and 8,
1997,4 to determine whether Mr. Martinez-Villareal was
competent to be executed. At the state court hearing,
substantial evidence and testimony established that Mr.
Martinez-Villareal continues to experience symptoms of a
major psychotic disorder, which was traced back to his
childhood, and that his condition is compounded by
mental retardation and brain damage. The state claimed
that Mr. Martinez-Villareal is malingering all of these
conditions.
5. Prior to and during the hearing, counsel for Mr.
Martinez-Villareal asked the superior court for leave to
conduct a MRI scan and neurometric EEG of Mr. Mar-
tinez-Villareal and further asked for an expert specializ-
ing in the field of mental retardation to exam Mr.
Martinez-Villareal. Counsel explained that the accusation
that Mr. Martinez-Villareal was malingering his condi-
tion, and that he made statements reflecting an awareness
of his crime and punishment, increased the need for a
reliable determination of the issues of brain damage and
claim as a successive petition.” Order, Mar. 24, 1997 [Doc. No.
155], at 1. Petitioner appealed that order simply to ensure that
jurisdiction was not lost if Respondents should take a contrary
position when the petition is supplemented with this claim.
4 The hearings on April 6th and May 8th were half day
hearings.
34
mental retardation. Counsel also requested an oppor-
tunity to conduct further specific testing into the issue of
mental retardation - including objective assessment of
Mr. Martinez-Villareal’s adaptive behavior skills which
would provide substantial proof of his reasoning capac-
ity, or lack thereof.5 The record reveals that mental retar-
dation is a significant contributing factor to Mr. Martinez-
Villareal’s mental capacity and his behavior in the Ari-
zona Department of Corrections. Finally, counsel
requested additional time and resources to conduct a
thorough background investigation into Mr. Martinez-
Villareal’s family and social history. It is important to the
issue of malingering - which the state injected into the
case — to verify as much of Mr. Martinez-Villareal’s medi-
cal and social history as possible, including past head
trauma and a possible psychiatric referral by defendant's
uncle.® All of the requests were denied by the superior
court and the hearing commenced without petitioner
having an opportunity to present such evidence.
6. A day after the conclusion of the evidence the
superior court determined, inter alia, that:
> Counsel requested the court to appoint Dr. Denis Keyes,
an expert in the field of mental retardation who was willing to
conduct an expedited examination which would not have
delayed the hearing process.
© Mr. Martinez-Villareal, because of his mental impairment
and illiteracy in Spanish and English, has never been able to
provide reliable background, health and social history. He does
not even know his age or date of birth. Counsel requested and
were denied time and resources to locate the family members
who could verify the fact that Mr. Martinez-Villareal has been
mentally ill since childhood.
35
Credible testimony and medical evidence
was presented at the hearing herein that the
Defendant may suffer from a mental illness,
mental retardation and/or organic brain dam-
age; credible testimony and medical evidence
was likewise presented at the hearing herein
that some or all of the symptoms or outward
manifestations of those illnesses or conditions
may be and may have been exaggerated or con-
trived by the Defendant; credible testimony and
evidence was likewise presented at the hearing
herein that the Defendant, even if suffering from
any or all of those illnesses or conditions, would
not necessarily thereby be precluded from being
competent to be executed, as defined by the
law. ...
State v. Martinez-Villareal, No CR 97022291 (may 9, 1997)
[Exhibit B.] The Court concluded Mr. Martinez-Villareal
was aware that he is to be punished for the crime of
murder and that the punishment for that crime is death,
and that he is therefore competent to be executed. Id.
7. Mr. Martinez-Villareal is now before this Court
requesting expert services and the appointment of coun-
sel so that his competency to be executed claim can be
fully developed and presented in this Court. Given the
ambiguity and inadequacy of the trial court’s findings,
assuming they can even be characterized as such, this
Court will need to conduct a de novo review of this
claim. As a result, to make a full and fair decision on this
claim, it will need all the information it can obtain on this
serious issue.
8. This Court has jurisdiction to hear this motion.
Congress, through 28 U.S.C. § 848(q){4)(B) “established a
36
right to preapplication legal assistance for defendants in
federal habeas corpus proceedings.” McFarland v. Scott,
512 U.S. 849, __, 114 S.Ct. 2568, 2572 (1994). This assis-
tance extends to the services of investigators and other
experts [who] may be critical in the preapplication phase
of a habeas corpus proceeding, when possible claims and
their factual bases are researched and identified.” Id. 114
S.Ct. at 2572 citing 21 U.S.C. § 848(q)(9). This Court has
the authority to grant a fee request to assist Mr. Martinez-
Villareal “in preparing for his federal habeas efforts.”
Calderon v. United States District Court for the Eastern Dis-
trict of California, __ F.3d. __, 1997 WL 183877, at *1, *6
(9th Cir. Apr. 16, 1997). A “ ‘post conviction proceeding’
within the meaning of section 848(q)(4)(B) begins upon
the filing of the defendant’s motion requesting the assis-
tance of counsel for his federal habeas corpus proceed-
ing.” Id. citing McFarland v. Scott, 114 S.Ct. at 2572-73.7
9. Petitioner requires expert assistance and/or
access to his client before he files his supplemented peti-
tion for writ of habeas corpus.*® As discussed above, this
7 Mr. Martinez-Villareal’s request for appointment of
counsel is made at { 13, infra.
8 If this Court appoints the Federal Public Defendant as
requested below, it need only grant the request for access to
Petitioner to conduct necessary testing. Under the policies of the
Arizona Department of Corrections (“DOC”), a contact visit
between counsel, a mental health expert and Petitioner will not
be allowed absent a court order. The state court issued such an
order below, and contact visits were allowed. Petitioner
requests that this Court also issue such an order so that the
needed evaluations can go forward. In addition, this Court
previously allowed experts to have access to Mr. Martinez-
Villareal for purposes of testing. See Doc. Nos. 90, 108, 110, and
112.
37
is because, despite requests both before and during the
recent state court hearing on whether Petitioner was com-
petent to be executed, the state court denied Petitioner
the services of necessary experts, including an expert in
field of mental retardation. In the habeas proceedings in
this Court on Claim 4.16, Mr. Martinez-Villareal will pre-
sent facts concerning his mental retardation and explain
that mental retardation exacerbates and relates to his
present incompetency.
10. Mr. Martinez-Villareal is requesting from this
Court that which was denied to him by the state court,
and what was needed to determine the question of his
competency. He is requesting funding for an MRI scan,
which creates a visual image of the brain structure, and
neurometric EEG, which measures brain functioning, as
well as funding to retain Dr. Dennis Keyes.’
10.1 Jonathan H. Pincus, M.D., conducted a neu-
rological examination of Mr. Martinez-Villareal and
reported not only is Mr. Martinez-Villareal psychotic, but
“[t]his subject is mentally retarded, his IQ 61, and his
frontal lobe functions are impaired on neurological exam-
ination.” Correspondence from Jonathan H. Pincus to
Sean D. O’Brien, Apr. 1, 1997 (“Pincus correspondence”)
at 6. [Exhibit C.] Dr. Pincus concluded “[aJn MRI of [Mr.
Martinez-Villareal’s] brain could help to explain why his
brain is not working properly.” Id.
10.2 Joseph Geffen, PhD., also tested Mr. Mar-
tinez-Villareal and concluded he is “mentally retarded,
brain damaged and psychotic.” Affidavit of Dr. Geffen,
% See footnote 8, supra.
38
Apr. 8, 1997 (“Geffen Affidavit”) at { 2. [Exhibit D.]
According to Dr. Geffen, “[aJn MRI is necessary to help
detect any structural abnormality of the brain that may
account for the organic brain dysfunction indicated by
neurological and neuropsychological testing and patient
history.” Id. at { 4. The neurometric EEG is “especially
critical in examining Mr. Martinez-Villareal’s frontal cere-
bral cortex, which is the seat of higher brain functions,
including the ability to understand the abstract concepts
necessary to understand the cause-effect relationship
between the crime and the punishment.” Id. at { 6. Dr.
Geffen concluded, that in addition to the MRI and neuro-
metric EEG, “it would be important to obtain an examina-
tion of an expert in the area of mental retardation,
preferably one who is bi-lingual. . . . [I]t appears that
behavior consistent with mental retardation is being mis-
interpreted [by state officials] as indicia of competence.
. . . Although Mr. Martinez-Villareal is brain damaged
and psychotic, his impairment is significantly exacer-
bated by his extremely limited intellectual functioning.”
Id. at { 7.
10.3 Assessment of Mr. Martinez-Villareal by a
psychologist specializing in the field of mental retarda-
tion is critical to an accurate assessment to his present
level of competence. Counsel has consulted Dr. Denis
Keyes, PhD., Assistant Professor of Special Education at
the College of Charleston, South Carolina, regarding the
issue of mental retardation in this case. Dr. Keyes’ initial
impression of this case is that Mr. Martinez-Villareal’s
mental retardation is under emphasized. Although IQ
testing places him well within the range of mental retar-
dation, an adaptive skills diagnosis is necessary to detect
39
the severity of his mental retardation. A subject’s adap-
tive skills are more important to a diagnosis of mental
retardation than IQ testing alone. Dr. Keyes would
administer the Vineland Scale of adaptive behavior,
which involves interviewing a minimum of four to five
individuals who are most familiar with Mr. Martinez-
Villareal’s development and behavior, including his fam-
ily, friends, lawyers and corrections staff. From reviewing
portions of the record in this case, Dr. Keyes has
expressed a concern that Mr. Martinez-Villareal, as is
typical of most persons with mental retardation, is
extremely suggestible and subject to manipulation during
questioning. He has a specific concern regarding this
case, which could be addressed by further investigation,
that statements and conduct of Mr. Martinez-Villareal has
been misinterpreted as indicia of competence.
11. The refusal by the state court to provide funding
for testing and experts, effectively denied Mr. Martinez-
Villareal of the adequate fact-finding procedure that he
was entitled to in the state court. Two key elements were
missing from the hearing in state court: test results,
which in turn would offer proof of brain damage; and an
evaluation and testimony by a psychologist to explain
mental retardation and its affect on a person who is brain
damaged. Without this evidence, much less the ability to
obtain this evidence and present it to the state court,
there is no presumption of correctness afforded to the
state court decision. Testing and expert assistance will be
necessary for Mr. Martinez-Villareal to present his allega-
tions in support of Claim 4.16 to this court.
12. This Court also has the authority to appoint
counsel for Mr. Martinez-Villareal. Section 848(q)(4)(B) of
40
Title 21 of the United States Code “established a right to
preapplication legal assistance for defendants in federal
habeas corpus proceedings.” McFarland v. Scott, 114 S.Ct.
at 2572. The language and purposes of § 848(q)(4)(B) and
its related provisions establish that the right to appointed
counsel includes a right to legal assistance in the prepara-
tion of the habeas corpus application.” Id. Mr. Martinez-
Villareal, who is indigent, requests counsel so that he may
prepare to seek a stay of execution and reinstate his
competency to be executed claim.
13. Although Mr. Martinez-Villareal has been repre-
sented by Sean Bruner in the state court proceedings
below, and was represented by Mr. Bruner in proceedings
in this Court, Mr. Bruner can no longer continue in the
representation because he has become an important wit-
ness as to Mr. Martinez-Villareal’s competency to be exe-
cuted. Due to past and continuing observations of Mr.
Martinez-Villareal made by Mr. Bruner, it may be neces-
sary for Mr. Bruner to be called as a witness at a compe-
tency hearing in this Court. Accordingly, Mr. Bruner is
not seeking appointment for this proceeding. For that
reason, Petitioner requests that the Federal Public
Defender for the District of Arizona and Sean D. O’Brien
be appointed to represent him in his habeas corpus pro-
ceedings. Sean D. O’Brien is the Director of the Public
Interest Litigation Clinic in Kansas City, Missouri. He was
appointed to represent Mr. Martinez-Villareal in the state
court competency proceedings. Mr. O’Brien’s continued
participation, given the short period of time in which the
claim may need to be litigated, is necessary as he is most
familiar with the facts of the case, the witnesses and the
41
proceedings in the state court. Mr. O’Brien possesses the
necessary qualifications to be appointed in this matter.’°
14. Finally, Petitioner requests access to his client to
allow the necessary evaluations and testing to take place.
DOC does not permit contact visits absent a court order.
This Court and the state court previously issued orders
that Petitioner be given contact visits with his attorneys
and mental health experts. DOC complied with that
order. Petitioner asks this Court to issue a similar order
so that necessary investigation can be completed.
For all these reasons, Mr. Martinez-Villareal requests
the immediate appointment of counsel and necessary
experts or access to his client so that counsel may prepare
the competency claim, and related pleadings, for consid-
eration by this Court. Given the impending execution
date, Petitioner asks that this motion be given expedited
consideration.
Respectfully submitted this 13th day of May, 1997.
Fredric F. Kay
Federal Public Defender
Denise I. Young
Dale A. Baich
Sean D. O’Brien
By /s/ Denise Young
COUNSEL FOR PETITIONER
10 A further description of Mr. O’Brien’s qualifications are
listed in his resume. [Exhibit E.]
Copy of the foregoing
mailed this 13th day of
May, 1997 to:
Bruce M. Ferg
Assistant Attorney General
Office of the Attorney General
400 West Congress, Bldg. S, Ste. 315
Tucson, AZ 85701-1367
/s/ Denise Young
EXHIBIT A
SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
Appellee,
Supreme Court
No. CR-83-0207-AP
[5963]
vs.
RAMON MARTINEZ-
VILLAREAL,
Appellant.
Court of Appeals
No. 2 CA-CR 3160
Santa Cruz County
Nos. 4541-A, 4653-A
and 4628-A
)
)
)
)
)
)
)
)
)
)
)
) WARRANT OF EXECUTION
)
)
(Filed April 15, 1997)
The appeal in the above-entitled cause was heard and
fully considered by this Court on the 12th day of April,
1984 and having finally decided the cause, this Court on
43
the 10th day of July, 1985, did affirm the judgment of the
Superior Court of Santa Cruz County, State of Arizona,
and did file its opinion, which opinion is now of record in
this Court, is still in effect, and, as shown by this Court's
record, has not been stayed or affected by any subsequent
decision of this or any other Court.
WHEREAS, a Warrant of Execution issued by this
Court on March 12, 1997 was quashed by order in Mar-
tinez-Villareal v. Johnson, No. CV-97-0151-SA, dated
April 8, 1997, which order further directed that the execu-
tion be set for May 21, 1997,
NOW THEREFORE, IT IS ORDERED, that Wednes-
day, the 21st day of May, 1997, be and the same is hereby
fixed as the time when the judgment and sentence of
death pronounced upon the appellant, RAMON MAR-
TINEZ-VILLAREAL, by the Superior Court of Santa Cruz
County, State of Arizona, shall be executed by adminis-
tering to RAMON MARTINEZ-VILLAREAL an intra-
venous injection of a substance or substances in a lethal
quantity sufficient to cause death, except that RAMON
MARTINEZ-VILLAREAL shall have the choice of either
lethal injection or lethal gas.
IT IS FURTHER ORDERED that the Clerk of this
Court forthwith prepare and certify under his hand and
the seal of this Court a full, true and correct copy of this
Warrant, and cause the same to be delivered to the Direc-
tor of the Department of Corrections and the Superinten-
dent of the State Prison, at Florence, Arizona, and the
same shall be sufficient authority to them for the execu-
tion of the appellant, RAMON MARTINEZ-VILLAREAL,
as commanded by the judgment and sentence of death
44
pronounced against RAMON MARTINEZ-VILLAREAL,
by the Superior Court of Santa Cruz County, State of
Arizona, on the 20th day of May, 1983.
Upon the execution of RAMON MARTINEZ-VIL-
LAREAL, the Superintendent shall, pursuant to Rule
31.17(c), Rules of Criminal Procedure, forthwith make a
return upon this Warrant to the Supreme Court of Ari-
zona, which return shall show the time, mode and man-
ner of execution.
Dated in the City of Phoenix, Arizona, at the Arizona
Courts Building, this 15th day of April, 1997.
/s/ Thomas A. Zlaket
THOMAS A. ZLAKET, Chief Justice
/s/ Charles E. Jones
CHARLES E. JONES, Vice Chief Justice
/s/ Stanley G. Feldman
STANLEY G. FELDMAN, Justice
/s/ James Moeller
JAMES MOELLER, Justice
/s/ Frederick J. Martone
FREDERICK J. MARTONE, Justice
STATE OF ARIZONA
SUPREME COURT
I, NOEL K. DESSAINT, Clerk of the Supreme Court
of the State of Arizona, hereby certify the above and
foregoing (2 pages) to be a full and true copy of the
WARRANT OF EXECUTION of RAMON MARTINEZ-
VILLAREAL, filed by said Supreme Court in the said
above-entitled action on this 15th day of April, 1997.
IN WITNESS WHEREOF, I hereunto set my hand and
affix the official seal of the Supreme Court of the State of
Arizona, this 15th day of April, 1997.
/s/ Noel K. Dessaint
NOEL K. DESSAINT, CLERK
EXHIBIT B
OFFICE DISTRIBUTION
[X] DIVISION
[X] COUNTY ATTORNEY
IN THE SUPERIOR COURT
OF
PINAL COUNTY, STATE OF ARIZONA
Date 05/09/1997
JUDGE HONORABLE BOYD T. JOHNSON
DIVISION 4 ALMA JENNINGS HAUGHT, CLERK
COURT REPORTER none By Melissa A. Rabago, Deputy
ADDRESS & PHONE
THE STATE OF ARIZONA,
46
Case No. CR97022291
)
Plaine, ) MINUTE ENTRY
vs ) ACTION:
RAMON MARTINEZ- . mmnnen
VILLAREAL,
Defendant(s). ) (Filed May 9, 1997)
)
PRESENT:
The Court having considered the pleadings of
the parties; having reviewed the reports of =
mental health experts herein; having review
all exhibits admitted into evidence; having -
sidered the testimony of witnesses herein =
the arguments of counsel; having considered a
relevant legal authority; and upon good cause
shown:
FINDS, as follows:
t the Defendant, Ramon Martinez-Villar-
. a is an inmate in the custody of the Ari-
zona Department of Corrections who has
been sentenced to death; that this action was
brought by and on behalf of the oe
upon a petition filed pursuant to we
§13-4022, as amended, alleging that t °
Defendant is not competent to be executed;
_ That A.R.S. §13-4022(E), as amended, pro-
: vides a presumption that a person who -_
been sentenced to death is competent to
executed; that it further places the burden
upon the defendant to prove by clear and
o,
47
convincing evictence that he is not
tent to be exec" :ed; that the mental compe-
tency at issue in this proceeding is as
defined by A.R.S. §13-4021, as amended;
That credible testimony and medical evi-
dence was presented at the hearing herein
that the Defendant may suffer from a mental
illness, mental retardation and/or organic
brain damage; credible testimony and medi-
cal evidence was likewise presented at the
hearing herein that some or all of the symp-
toms or outward manifestation of those ill-
nesses or conditions may be and may have
been exaggerated or contrived by the Defen-
dant; credible testimony and medical evi-
dence was likewise presented at the hearing
herein that the Defendant, even if suffering
from any or all of those illnesses or condi-
tions, would not necessarily thereby be pre-
cluded from being competent to be
executed, as defined by law; credible testi-
mony and medical evidence was likewise
presented at the hearing herein that the
Defendant may not suffer from any of those
illnesses or conditions or may suffer in a
lesser degree from one or more of those
illnesses or conditions and mwy, in fact, be
malingering, as that term was medically
defined during the testimony of witnesses;
That the determination whether the burden
of proof has been met may only be made
after a careful review and analysis of all the
evidence presented the Court; that, upon
review of all the evidence presented the
Court, this Court FINDS that the Defendant
has failed to prove by clear and convincing
48
evidence, or by the lesser standard of pre-
ponderance of the evidence, that he is not
competent to be executed;
5. That the Court FURTHER FINDS that Defen-
dant is aware that he is to be punished for
the crime of murder and that he is aware
that the impending punishment for that
crime is death; that the Defendant, Ramon
Martinez-Villarreal, is therefore competent
to be executed under the laws of the State of
Arizona.
IT IS THEREFORE ORDERED that the petition
to find the Defendant incompetent to be exe-
cuted is denied.
DONE this 9th day of May, 1997.
/s/ Boyd T. Johnson
HONOR RABLE BOYD T JOHNSON
49
EXHIBIT C
GEORGETOWN Universiry Mepicat CENTER
Department of Neurology
Jonathan H. Pincus, MD
Professor and Chairman Emeritus
April 1, 1997
Mr. Sean O’Brien
Public Interest Liti ation
5319 Rockville Road
Kansas City, Missouri 64110
Re: Ramon Martinez Villa-Real
Dear Mr. O’Brien,
; I examined Mr. Ramon Martinez Villa-Real on Mon-
ay, March 31, 1997, in the federal Penitentiary in Flo-
rence, Arizona, and I have reviewed the records that
were kind enough to send. These included the a
from the Pacific Reporter, second series, July 10, 1985
pages 670-681, the affidavit of Dr. Garcia-Bunuel concern.
a his examination on March 5, 1994, and the affidavit of
me ade Geffen of his examination dated September 21
oo ran June 22, 1994. I also reviewed the testimony of
a . ffen, direct by Mr. Bruner Pages 8-73 and the direct
. ony of Dr. Garcia-Bunuel Pages 143-200. In addi-
ton, I saw the physical exams and general medical
records, mental health records, medication records iad
X-rays and lab tests from th
¢ Ge e Arizona State Department
My examination and histor
y was performed
March 31, 1997, over a four hour period se 10:30 in he
morning to 2:30 in the afternoon. | saw him in response to
50
your urgent request concerning his competency to be
executed. An execution date had already been set some
two weeks hence. The history was obtained with Mr.
Bruner present in order to allay suspicious feelings con-
cerning my role in his defense and with an interpreter,
Ysabelle.
He entered looking somewhat disheveled with about
three days growth of beard, and his hair was short but
had not been brushed. His posture was flexed in general,
and he appeared dejected. He looked down at his hands
and played with his fingers for the entire four hours that
I was there. I do not think that we established eye contact
more than four times and then only briefly. I began by
asking him if he knew why I was there. I explained that I
was a neurologist, a doctor who takes care of the brain
and the nervous system and its diseases. He said that he
did not know why I was there. I asked him if he knew
how anything I found might be helpful to him, and he
claimed not to. I asked him if he knew that he was to be
executed, and he claimed not to know what that meant. I
asked him if he would come back after the execution, and
he said that he does not know what happens afterward. I
asked if he would eat and watch TV, and he answered by
saying, “I do not get hungry much, and I only watch TV
in the afternoons.” This lack of responsiveness to the
question I had asked was typical. I said to him, “Once
you are killed, you would not eat or watch TV.” He
responded, “Munoz said he is writing a ballad about me.”
I had been told that he was married, so I asked him
about this. He nodded, “Yes.” I said, “Does you wife live
in a house?” He looked uncomfortable and said that they
were not actually married. I said, “Do you live in a
51
house?” He indicated that he lived in a house and th
Consected that to say that she lived in a house. I nae
Does she live in the house with you?” He said that '
she lived in a house that was near where his house w -
said, “Well, why don’t you live together?” He said “Well
she lives with her husband in a house with her dibtien ”"
it turns out that he visited her occasionally in the e :
ning. In other words, he had a relationship with a canon
poser rca vie = ow wife. The lack of understanding
al in this case was not just a matt
language. We had a perfectly competent sat 9
matter of retardation and a kind of literalness in th
interpretation of words, which is seen in brain-da "
individuals and psychotic individuals. rie
Ada poy he had been described as disheveled with a
matted hair in the past, I asked him about his
Ya tee He indicated that the guards give him a
° ats a on Sundays and sometimes by force or with
Pee : chested nage Aan he han not like to walk to
shave is au i
thought that the pains in his legs omer a se wel
relate to diabeti P
pare ic neuropathy. He is known to have dia-
There was some discussion in th i
of his having enjoyed television and of rendre nny
priately to television programs by laughing. I had we
a fe television viewing, and he told me that he likes
meal the Mexican channels because he enjoys hearing
panies ~ ron He speaks no English. I asked him if he
pr e ne soccer matches, and he indicated that
mes they show soccer matches on the Mexican
52
channel. I asked if he ever laughs while watching <p
sion, and he said that he laughs when soccer players 7
down. He denies having a favorite team and deni
following the fortunes of any specific team.
He then spontaneously told me about other times
laughs. He talks to himself in his cell, and ye
laughs. A guard asked him why he was a . “
and laughing. He laughed when the guard as " -
Once a guard came into his cell to search neti
laughed, and the guard asked why. Ramon respo “
“You are able to speak Spanish, but you only sae
English to me.” He said to me, “I was not angeeng a
guard, but that is what the guard thought.
I asked him how he knew that the pass a aby
his laughter was directed at the guard. meer m
said, “the guard seemed angry,” and the gua me he
him, ‘Que passa?’ when he entered his cell. Yet, : “ma
was lying on his bed with his face to the walt w neu
was laughing, so clearly he was not laughing a
guard.
I though [sic] Ramon’s interpretation of this a
was a bit paranoid, so I asked him if there were ws oe
who were angry at him. This led to a long story a wl :
check, a letter, signing for a check, and receiving ° secelp
that was not responsive to the issue we were discussing
and was a digression, what psychiatrists call loose asso-
ciations. This is something seen in people wae so a
thought disorder caused by a neurologic disease of the
brain or a psychosis or both.
53
Then we got back to the subject of anger, and he said
that people were angry at him because he had tempo-
rarily taken the ear plugs out of his ears that were
attached to his radio so that his radio could be heard by
others. He said that the guards turned off his light not
just the radio, and he continued, “the guard is a jerk. He
gave me two sandwiches in the afternoon instead of a
regular dinner.” Ramon does not know if a doctor
ordered this or not because of his diabetes, but “some-
times they don’t give me the milk I ask for. They say wait
a minute, but they say it wrong. They say, ‘Poquito
momento.’ There is one guard who won’t bring me milk.
They don’t bring me milk because they are angry. It makes
me feel bad because I haven’t done anything bad. The
other guys turn on their radios high, and the guards do
nothing to them. It makes me feel ashamed.”
The picture drawn by Ramon was one of aloneness.
The guards are against him, the other inmates are against
him, and all without reason.
Ramon had been receiving antipsychotic medication.
At one point, he had Navane 5 mg twice a day and was
taking Cogentin and/or Artane with it. He had been
treated with this was for a number of years, but the
antipsychotic medication had been discontinued about a
year ago. I asked about the effect on him of stopping that
medication. He misunderstood my question or answered
another one and started talking about his hearing. It
turns out that he has a problem hearing with his left ear.
When I asked him about what he does hear that other
people can’t, he indicated that he hears voices and some-
times sees snakes. I asked about the identity of the voices,
and he said that there is a man’s voice and a woman’s
54
voice that do not have names. Both tell him to cut him-
self. The woman’s voice is like his dead sister, Maria. She
was like a mother to him, and after he was orphaned, she
tee: care of him. He said, “Her children are like my
own,” and then he cried. He said that she was a half
sister. She looked for him when he would go out to work
and stay away for several days. She lived on another
ranch about one day’s walk from where his older
brothers and sisters were living in the mountains in a
communal agricultural village.
This conversation is not responsive to my question
about what happened after he stopped his antipsychotic
medication, but I let him continue. He said that his
mother and his father treated him better than they treated
the other brothers and sisters and protected him because
of his illness. They had identified him as being mentally
ill early on. He was not able to say how old he was when
he began hearing the voices, but he said that when he
was 12 or 13 he banged his head against the wall because
of voices, and his father used to take him with him on
jobs in order to keep an eye on him. His father died when
he was 16 or 17 he told us.
Though his father never beat him, he did beat the
other children and told the other children not to hit him
or tease him because he did not know what he was doing.
He was not able to specify what such acts might be, but
he said that when his father beat the other children, he
used electric extension wire and beat them on their backs
as well as their legs. Though he denied any such beatings
that were directed at him, it sounds to me as if that may
very well have been a very violent home.
55
We discussed the voices. They are the same as th
ones he has always heard, and they tell him to h ‘
himself. The voices were speaking to him at the time ao
we conversed and were “telling him to go back to his
> te ba that they keep him up at night. He said that
Ps ae icine reduced the voices but did not eliminate
m. e wants to take the medication again. The voice i
not his sister, but it is her voice. It is mainly the man nis
tells him to hurt himself. It is not comforting to hea his
sister's voice, but it makes it worse. as
He expressed intensely ambiguous feelin
a men, Munoz and Ortiz, both of whom have Pitan
him with considerable comfort and speak to him in Spa
ish and have conversed with him for long periods of : a
and that others have been extremely cruel to him nd
taunted him and want him to die. During his saiieet
his relationship with Ortiz, he had a long digression into
how he made 31 cups of coff
eatin P ee and had to serve them in
On examination, he was 4'9". His eardrums
clear. There is a marked hearing deficit in the left eae
tuning fork applied to his forehead is heard best on th
right. This indicates nerve deafness on the left. His he 4
circumference was 55 cm, which is within normal lenits
He made no or very little eye contact with me. E .
movements were not smooth but showed saccades i
tracking, and there was impersistence of gaze.
Motor examination revealed
normal strength and
tone throughout. There were no choreiform nc am
or tremor. There was a right hand and foot preference. He
was able to hop briefly on his right foot, but pain made it
56
impossible for him to do more, and he could not skip. His
gait was antalgic. There was no glabellar response, but
there was a positive nuchocephalic reflex. Rapid alternat-
ing movements were done reasonably well with his
palms, fingers, and feet. Sensory examination of primary
modalities was intact to vibration, position, and pin-
wheel, but he extinguished the distal of two simul-
taneously delivered stimuli on both the right side and the
left side. Deep tendon reflexes were 2+ and equal
throughout in the upper extremities and the knees but
were barely perceptible at the ankles. Plantar responses
were flexor bilaterally. There were negative Wartenberg
reflexes bilaterally.
There was a positive snout. There was paratonia of
both arms and both legs, and he was unable to carry out
the Luria two step or three step commands. Cerebellar
function as best as could be determined was normal.
There was no grasp reflex.
There were scars in the left parietal region and a
huge U-shaped on the forehead. There were three long
longitudinal scars on his left forearm and his left index
finger. He had tried to kill himself by cutting his arm and
cutting off his left index finger.
| Mini-mental status examination revealed that he did
not know the year, the season, the month, or the day of
the month, but did know the day of the week, Monday.
He knew we were in Arizona but not county, town, or
floor, but knew the unit in which he was held at the
prison. He required one repetition to remember three
words. After he encoded them, he got ?/s at one minute.
He was only able to do one correct subtraction of seven,
57
not from 100 but from 10. At first he said seven, but then
he corrected this to three. He named a pencil and a
watch, followed a three stage command. He is not able to
read so that he could not read and obey, and he could not
write a sentence. His attempt to copy a design was primi-
tive and had evidence of constructional apraxia. He got a
score of 13/30 on the mini-mental status exam. His illit-
eracy may have lowered the score beyond where it would
have been had he learned to read and write.
Competency depends upon frontal lobe function and
requires a minimal degree of intelligence. This subject is
mentally retarded, his IQ 61, and his frontal lobe func-
tions are impaired on neurologic examination.
I have made specific recom i
mendations for neu
ey pe assessment to include the Wisconsin Card.
on. test and Trail-making A and B. His illiteracy may
Pe n eo wr a challenge for Dr. Geffen. An MRI of his
asia “ae
ene elp to explain why his brain is not working
a I think it likely that he cannot connect the crime with
punishment and does not understand the result of his
punishment. He certainly cannot cooperate effectively in
ae his defense with pleas for executive onan
e is both schizophrenic and retarded. He i ft
subject for execution. si og nt
Sincerely,
/s/ Jonathan H. Pincus
Jonathan H. Pincus, MD
Professor of Neurology and
Chairman Emeritus
58
EXHIBIT D
AFFIDAVIT OF DR. JOSEPH GEFFEN
Comes now affiant, Joseph Geffen, Ph.D., and first
being duly sworn, states and declares as follows:
1. lama psychologist duly licensed to practice psy-
chology in the State of Arizona. In that capacity, I have
participated in the assessment of the mental condition of
Mr. Ramon Martinez-Villareal.
2. My testing, and that of other mental health pro-
fessionals, indicates that Mr. Martinez-Villareal is men-
tally retarded, brain damaged, and psychotic. I believe
additional testing is necessary to determine the cause and
extent of Mr. Martinez-Villareal’s disabilities, especially
given the gravity of the issues involved.
3. Ihave asked counsel for Mr. Martinez-Villareal to
obtain a neurometric EEG, which measures brain func-
tioning, and an MRI, which can create a visual image of
the brain structure. Each test objectively assesses the
condition and functioning of the patient's brain, but in
different ways. The patient's frontal lobe is responsible
for the higher order brain functions necessary to the
patient’s ability to understand that he is to be executed
and why.
4. An MRI is necessary to help detect any structural
abnormality of the brain that may account for the organic
brain dysfunction indicated by neurological and neuro-
psychological testing and patient history. Mr. Martinez-
Villareal has a history of head injuries, psychotic symp-
toms, inconsistent and erratic behavior, and autism
observed and verified since early childhood. Prison
59
records reveal disorganized behavior, s
, such as requestin
and then refusing medication, that is commonly observed
Poms Suffering from psychotic and/or organic brain
5. A neurometric EEG measures electronic i
produced by the brain. It records electronic aliens
brain which enables doctors to identify and evaluate
brain functions. There are subtle defects in the brain that
are not detected on traditional EEG testing. The quantita-
tive EEG uses computerized, statistically validated norms
to analyze the brain wave activity and create a visual
image o brain functioning. By comparing patterns of the
— brain functions to normative groups, it aids in
stermining the actual functioning of specific areas of the
patient s brain. This is especially critical in examining Mr
Martinez-Villareal’s frontal cerebral cortex, which e the
seat of higher brain functions, including the ability to
ree vi the abstract concepts necessary to understand
: eres relationship between the crime and the
6. Objective testing is especially important in this
case because the issue of malingering has been raised, but
is not substantiated with any objective clinical testin
The testing to date establishes beyond question that Me.
Martinez-Villareal’s brain functioning is impaired; these
additional tests could provide additional objective
port for present clinical findings. xa
B pot addition to these tests, it would be important
je an examination by an expert in the area of
ms retardation, preferably one who is bi-lingual.
ving reviewed records in the prison and the reports of
aaa
60
DOC physicians, it appears that behavior consistent with
a caanenten is being misinterpreted as indicia of
competence. Traditional psychological tests for mental
retardation are not available in ranma ’ . . ess
necessary to engage an expert with substantial ex
with woo retarded subjects. Although Mr. Martinez-
Villareal is brain damaged and psychotic, his impairment
is significantly exacerbated by his extremely limited intel-
lectual functioning. An expert familiar with mental retar-
dation is necessary to complete the clinical picture of this
very impaired individual.
FURTHER, AFFIANT SAYS NAUGHT.
/s/ h Geffen Ph.D.
. Joseph Geffen, Ph.D.
State of Arizona )
) ss
County of Pima )
Subscribed and sworn before me this 8th day of
April, 1997.
/s/ Ana illegible nee:Salcido
Notary hic
My Commission expires:
6-28-97
OFFICIAL SEAL
[SEAL] ANA SALCIDO
Notary Public —- Arizona
PIMA COUNTY
My Comm. expires June 28, 1997
61
EXITIBIT E
SEAN D. O’BRIEN
5319 Rockhill Road
Kansas City, Missouri 64110
(816) 363-9371
BAR MEMBERSHIP: Missouri Bar; Federal District
Court, Western District of Mis-
souri; United States Court of
Appeals, Eighth Circuit; United
States Supreme Court
EDUCATION: University of Missouri-Kansas
City, J.D., 1980; Northwest Mis-
souri State University, B.A.,
English, Communications, high-
est honors, 1977.
APPOINTMENT
AND POSITIONS: Executive Director, Public Inter-
est Litigation Clinic (formerly the
Missouri Capital Punishment
Resources Center). The Clinic
represents death row inmates in
all stages of trial and appeal.
(October, 1989 - present)
Adjunct Professor, UMKC School
of Law. Courses taught since
1985 include Problems and Issues
in the Death Penalty, Death Pen-
alty Representation Clinic, Public
Defender Trial Clinic, Public
Defender Appeal Clinic.
Public Defender, Jackson County,
Missouri. Director of an urban
public defender office represent-
ing poor people in all varieties of
PROFESSIONAL
AWARDS:
62
criminal proceedings. (January,
1985 — September, 1989)
Assistant Public Defender, Jack-
son County, Kansas City, Mis-
souri. Defended poor people in
felony cases, including death
penalty defense, in trial, appeal
and postconviction proceedings.
(March, 1981 — December, 1984).
President, Missouri Association
of Criminal Defense Lawyers,
1992-93
Missouri Alliance for the Men-
tally Ill, Chair, Forensic Commit-
tee, 1992-present
Chairman, Missouri Bar Criminal
Law Committee, 1989 — 1992
Missouri Association for Social
Welfare, Annual Award, 1994
Missouri Coalition to Abolish the
Death Penalty Annual Award,
1994
63
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MA&.RTINEZ-
)
VILLAREAL, )
Petitioner ) No. CIV-86-296-
) TUC-RMB
= ) ORDER
TERRY STEWART, et al., )
) (Filed
Respondent. ) May 14, 1997)
)
Petitioner has filed with this court a Motion for
Expert Services and/or Access to Client and Appoint-
ment of Counsel. The Petitioner does not presently have a
claim pending before this Court. Previously, the Peti-
tioner brought a claim before this Court regarding his
competency to be executed and other issues. The Court
ruled on the other issues and denied the claim regarding
competency to be executed, finding that the competency
to be executed claim was premature because, at that time,
an execution date had not been set. See Order and Mem-
orandum Opinion dated October 21, 1994. An execution
date of May 21, 1997 has now been set, and Petitioner
plans to reinstate his claim regarding his competency to
be executed.
Title 21 U.S.C. § 848(q)(4)(B) entitles capital defen-
dants to legal representation in proceedings pursuant to
28 U.S.C. § 2254 or § 2255. The Supreme Court has stated
that § 848(q)(4)(B) provides that “the right to appointed
counsel adhere prior to the filing of a formal, legally
sufficient habeas corpus petition.” McFarland v. Scott, 512
64
U.S. 849, 855, 114 S.Ct. 2568, 2572 (1994). Accordingly IT
IS ORDERED that the Federal Public Defender for the
District of Arizona and Sean D. O’Brien SHALL BE
APPOINTED to represent the Petitioner in habeas corpus
proceedings before this Court. IT IS FURTHER
ORDERED that this Court will hold a telephonic hearing
regarding the Motion for Expert Services and/or Access
to Client on May 15, 1997 at 2:30 p.m.
Dated this 14th day of May, 1997.
/s/ Richard M. Bilby
Richard M. Bilby
Senior United States
District Judge
GRANT WOODS
ATTORNEY GENERAL
Bruce M. Ferc
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
400 W. Coneress, Bbc. S-315
Tucson, ARIZONA 85701-1367
TELEPHONE: (520) 628-6504
_ (Stare Bar Numser 003544)
Attorneys For RESPONDENTS
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RAMON MARTINEZ-
VILLAREAL,
PETITIONER,
-Vs-
TERRY L. STEWART,
et. al,
Previous Cause NumBer:
CIV 86-296-TUC-RMB!
RESPONSE TO MOTION
FOR EXPERT SERVICES
AND/OR ACCESS TO
CLIENT AND
APPOINTMENT OF
RESPONDENTS. ‘ COUNSEL
ee
Respondents oppose this motion for several reasons,
and urge this Court to deny all of the requested relief.
* Inasmuch as CIV-86-296 has come to an end through the
appellate decision and mandate of the Ninth Circuit, and this
Court’s order of March 24, 1997, denied Petitioner’s “Motion to
Reconsider Order and Judgment,” it is certain that that case is
complete, and that anything more which will be litigated in this
Court constitutes a new, yet-to-be-filed case. Hence, some
means of referring to such new activity, which will not confuse
it with the finalized first petition, should be applied.
66
1. Because this is [sic] motion contemplates a successive
petition, this Court lacks jurisdiction to take any action. It is
undisputed that Petitioner has already had one federal
habeas proceeding, which has been litigated to its conclu-
sion. This Court has recognized as much in its prior
orders of May 6 and May 8, 1997. Therefore, the litigation
Petitioner is attempting to initiate now plainly is a suc-
cessive petition, subject to the requirements of 28 U.S.C.
§ 2244(b), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, and this Court is forbidden to
entertain it in any fashion, since Petitioner has not
obtained permission from the Ninth Circuit to proceed.
Counsel for Respondents is aware that the Court
stated in its order of March 24, 1997, that it did not intend
to treat the “incompetency to be executed” claim as a
successive petition. However, recent authority not men-
tioned in that order and probably unknown to the Court
indicates that Petitioner's competency to be executed
claim should be treated as successive, regardless of the
fact that it may not have been “ripe” when presented in
Petitioner's first petition. That the “factual predicate for
the claim could not have been discovered previously
through the exercise of due diligence” is only part of the
requirements for excepting a petition from the rule
against successive petitions; it must also be shown that if
the facts underlying the claim were proved, “no reason-
able fact finder would have found the applicant guilty of
the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).
The Ninth Circuit has recognized the clear intend-
ment of this language, that claims related only to sen-
tence, even a death sentence, simply cannot be
entertained in a successive petition. Greenawalt v. Stewart,
67
105 F.3d 1268, 1277 (9th Cir.), cert. denied, 117 S. Ct. 794
(1977) (allegation of ineffective assistance of counsel in
capital sentencing not permitted as successive petition);
Greenawalt v. Stewart, 105 F.3d 1287, 1288 (9th Cir.), cert.
denied, 117 S. Ct. 794 (1977) (denying permission to file a
successive petition which would attack lethal injection as
mode of execution because it “is not relevant to the
question whether he is guilty of murder in the first
degree”). Following the clear statutory language and the
two Greenawalt holdings, the Eleventh Circuit specifically
ruled that a claim of incompetency for execution under
Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed.
2d 335 (1986), cannot be raised in a successive petition. In
re Medina, 109 F.3d 1556, 1564-65 (11th Cir. 1997).
It therefore is clear that what is contemplated is a
successive petition, which this Court lacks any authority
to deal with.
Instead of filing a pleading in the district
court attempting to evade the provisions of 28
U.S.C. § 2244(b), as amended, Medina should
have begun by filing in this Court an application
seeking a certificate permitting him to file a
second application in the district court, as
required by § 2244(b)(3)(A). Because Medina did
not obtain such a certificate, the district court
correctly dismissed his habeas application,
denied his motion for a stay of execution, and
denied his application for a certificate of appeal-
ability.
(Id. at 1564.) The same is true of Petitioner. Nor does it
make any difference that what is being sought is appoint-
ment of counsel and funding of experts, as supposedly
68
authorized by 21 U.S.C. § 848(q)(4), construed in McFar-
land v. Scott, __ U.S. ___, 114 S. Ct. 2568, 129 L. Ed. 2d 666
(1994). McFarland involved neither unexhausted claims
nor a successive petition, both of which are present here.
Moreover, all of the relevant statutes must be read
together, Sterling v. Scott, 57 F.3d 451, 456-58 (5th Cir.
1995), cert. denied, 116 S. Ct. 715 (1996). Section 848(q)(8)
says that counsel appointed pursuant to that statute shall
represent the person in “available judicial proceedings,”
including “available post-conviction process.” Unless the
Ninth Circuit grants permission to proceed with the suc-
cessive petition, there simply is no “available” process,
and no basis for either appointment of counsel or any of
the other relief requested.
This conclusion is reinforced by the recognition that
the only purpose for appointing experts and authorizing
funding for testing is to hold an evidentiary hearing in
this Court. However, § 2254(e)(2)(B) of the amended
habeas statute allows for evidentiary hearings in the dis-
trict courts only if there has been a failure to develop a
factual basis in the state courts and, again, the applicant
shows that no reasonable fact finder would have found
him guilty. Thus, there can be no evidentiary hearings in
this Court, whether the petition is successive or not, on
an issue unrelated to the determination of guilt. Compe-
tency for execution certainly does not qualify. This Court
is not authorized to engage in a futile expenditure of
federal funds where no federal evidentiary hearing can
ever take place.
2. This Court cannot authorize expenditures concerning
an unexhausted claim. It is undisputed that this claim
remains unexhausted; Petitioner has a petition for special
69
action pending in the Arizona Supreme Court seeking
review of the trial court’s determination of competency,
as authorized by the statute, A.R.S. § 13-4022(G). As
support for his contention that this Court possesses juris-
diction to grant the orders he seeks, Petitioner cites just
two authorities. (Motion at 5.) One is McFarland v. Scott,
which we have already seen is distinguishable by the fact
that it involved neither a successive petition nor one
including an unexhausted issue. The other is Calderon v.
U.S. Dist. Ct., Eastern Dist. of California, 1997 WL 183877
(9th Cir. Apr. 16, 1997.). It, too, involved a first petition,
not a successive one. It remarks that the district court’s
dismissal of a mixed petition (so that there was no formal
petition pending) did not, in and of itself, require denial
of fees under Section 848(q), because McFarland deter-
mined that a mere request for counsel was enough to
initiate a proceeding. (Id. at *6.) However, it then went on
to state:
The district court is not required to grant the
application, however. See Sterling v. Scott, 57
F.3d 451, 457-58 (Sth Cir. 1995) (affirming deci-
sion that section 848(q)(9) fees request did not
survive dismissal of mixed petition), cert. denied,
— US. __, 116 S. Ct. 715, 133 L.Ed.2d 669
(1996).
(Id.) The result is ambiguity, because the decision seems
to say both that a district court can “consider” a fees
application in a case where there is an unexhausted
claim, and that the existence of an unexhausted claim is
an appropriate ground for terminating fees. What is clear
is that on at least three other occasions the Ninth Circuit
has granted mandamus, directing that discovery orders
—
ll i
70
be vacated because there was no properly exhausted peti-
tion pending in the district court, and prohibiting the
issuance of such orders until such a properly exhausted
petition was filed. Calderon v. U.S. Dist. Ct., Northern Dist.
of California (Nicolaus), 98 F.3d 1102 (9th Cir. 1996); Cal-
deron v. U.S. Dist. Ct., Northern Dist. of California (Hill),
110 F.3d 714 (9th Cir. 1997); Calderon v. U.S. Dist. Ct.,
Eastern Dist. of California, 1997 WL 219500 (9th Cir. May 5,
1997). Thus, the great weight of authority in this circuit
holds that there is no right to discovery orders, absent a
fully exhausted petition, and that should be true, regard-
less of the particular mechanism for discovery which a
petitioner attempts to utilize. In Shaw v. Delo, 971 F.2d
181, 188 (8th Cir. 1992), cert. denied, 113 S. Ct. 1301 (1993),
the Court of Appeals concluded that a competence for
execution claim should have been dismissed by the dis-
trict court, because it had not been exhausted in the state
courts, and “Because the merits of Shaw’s incompetence
claim were not properly before the district court, we also
conclude the district court correctly denied Shaw’s
motion for funds for investigative and expert services to
determine his competence to be executed.” These cases
strongly indicate that to grant what Petitioner requests
would amount to a clear error of law.
3. Even if the Court possesses authority to fund the tests
and experts Petitioner requests, to do so would be an abuse of
the Court's discretion. The very same requests presented to
this Court were presented to Judge Boyd Johnson of the
Pinal County Superior Court and denied by him. Those
were correct rulings and, even if this Court believes it
the authority to grant Petitioner’s requests, it
too should deny them.
71
Two types of testing are being requested. (Motion at
6.) The first sort is magnetic resonance imaging (MRI) of
Petitioner’s brain. However, in a report which Petitioner
has not supplied to the Court, Petitioner’s own affiant,
Dr. Geffen, conceded that, “Although an MRI test could
be useful, the results would mostly shed light with
respect to ‘structural’ abnormalities of the brain as
opposed to functional ones.” (Exhibit 1 hereto at 5.) This
amounts to a concession that the MRI testing will not
produce any relevant information, because this Court is
no more concerned with obtaining abstract information
about the structural abnormalities of Petitioner’s brain
than Judge Johnson was, but only with the single narrow
issue of whether he understands that he is to be executed
because he has been convicted of murder. If anything,
that is a “functional” issue, which Geffen says the MRI
will not address. Thus, the delay (undoubtedly the real
point of this motion), transportation difficulties, etc.,
involved in arranging for such testing of Petitioner would
be utterly pointless.?
2 The addition of Dr. Jonathan Pincus’ letter as support for
the MRI (Motion at 6 and Exhibit C) should not influence this
Court. Dr. Pincus is virtually a professional defense witness in
capital cases. Bonin v. Calderon, 807 F. Supp. 589, 598 n.9 (C.D.
Cal. 1992). The IQ he states, 61, is an error, as he admitted at the
hearing; it is a misquotation of Dr. Geffen’s report to this Court,
which found an IQ of 64. That level is merely “mildly” retarded.
DSM IV at 40. A recognized neurologist from Phoenix testified
to Judge Johnson that the additional tests would not provide an
answer to the question being asked (competency for execution);
“Saying that somebody has frontal lobe damage or brain
damage, saying that somebody is mentally retarded, it does not
really address that issue in any specific way.” (Ex. 2 at 75, 71.)
72
The situation is similar with regard to the other sort
of testing suggested, the “neurometric EEG,” which Gef-
fen’s report at 5 indicates is also known as “computerized
EEG” or “brain mapping.” This Court should know that
the Arizona Court of Appeals upheld exclusion of “brain
electrical activity mapping (BEAM)” evidence in a first
degree murder case, where the system was described as
“a computerized method of displaying and interpreting
EEG . . . data,” because “there was substantial evidence
from which the court could conclude that BEAM is not
generally accepted in the neurological community.” State
v. Zimmerman, 166 Ariz. 325, 327-29, 802 P.2d 1024,
1026-28 (Ct. App. 1990). As a merely experimental pro-
cedure, it was not something the court needed to receive
as evidence. (Id.) The same result was reached in the only
other case concerning brain mapping discovered by coun-
sel for Respondents, Head v. Lithonia Corp., Inc., 881 F.2d
941 (10th Cir. 1989). Thus, Petitioner wishes this Court to
grant a stay of his execution to allow for testing of a sort
not even accepted within the relevant medical circles. The
Court should also be aware that a regular EEG was
conducted of Petitioner in 1993, and found to be normal.
Strangely enough, Dr. Geffen’s affidavit does not even
mention that test, let alone explaining the need now to
have another EEG, let alone one which is merely experi-
mental in nature.
Equally unpersuasive is the request for an evaluation
by Dr. Dennis Keyes. Dr. Keyes is touted as an expert in
the area of mental retardation. The Court should recall
that the defense has already had Petitioner examined by
the following experts, who testified on his behalf: Dr.
Geffen (psychologist); Dr. Garcia-Bunuel (psychiatrist);
73
Dr. Imaz (psychiatrist); and Dr. Pincus (neurologist).
None of those individuals was reticent about expressing
an opinion that Petitioner suffers from mental retardation
or some other organic brain defect and, of course, the
witnesses presented by the State before Judge Johnson -
two psychiatrists (Drs. Kurke and Johnson), a psycholo-
gist (Dr. McCauley), and a neurologist (Dr. Tamm) also
discussed the matter. Thus, the matter was fully explored
in the state court proceeding. Keyes is not necessary, he is
redundant. The issue of malingering which the motion
posits as a reason for bringing Keyes in at this late date
has been disputed by the parties for years (as this Court
knows from the hearing held before it in 1994), so it is not
some sudden and unforeseen new development which
could not have been dealt with before.
The pointlessness of appointing Keyes is evident.
Paragraph 7 of Geffen’s affidavit (Motion Exhibit D) sug-
gests that Petitioner be examined yet again, by “an expert
in the area of mental retardation, preferably one who is
bi-lingual.” The Geffen affidavit ignores the fact that a
bilingual examiner — himself - has twice attempted to go
beyond mere interviews to conducting psychological test-
ing of Petitioner and has been essentially unsuccessful on
both occasions. His report of 10/31/93 discounted the
results of both the IQ test and “test for screening for
organic impairment of brain functions” administered on
that occasion because of the “psychotic processes” sup-
posedly then operating, and his most recent report (dated
4/2/97) indicates that Petitioner claimed inability to do
tests because of poor eyesight. The Court may recall that
Petitioner cooperated with Dr. Youngjohn in 1994 for only
a brief time and then walked out of the examination. Dr.
74
McCauley testified that she was prepared to do some
testing of Petitioner as part of her evaluation, but he
refused to cooperate. Thus, Petitioner’s cooperation even
with his own experts has been minimal, and he has made
clear his determination not to cooperate at all in testing
conducted by Respondent’s experts.
Thus, the likelihood of obtaining any reliable infor-
mation from Petitioner by means of psychological testing
is negligible, but it is precisely such testing which is
Keyes’ forte. One case involving another death-sentenced
defendant lists half a dozen tests administered by him to
that prisoner (which was not an exhaustive list), and
concludes that the result was “a thicket of numbers,
acronyms, and medical terminology” which was “incon-
clusive” and “indeterminate at best.” Fairchild v. Lockhart,
900 F.2d 1292, 1297-98 and n.5 (8th Cir.), cert. denied, 497
U.S. 1052 (1990). This apparently is Keyes’ typical mode
of operation. In a more recent death penalty case, his
testimony (and that of another defense witness) were
discounted on the bases that, “Both doctors spent the
bulk of their interview time with [the defendant] admin-
istering tests,” rather than talking to that defendant, and
that these witnesses “always testified for the defense.”
Washington v. Johnson, 90 F.3d 945, 952 (Sth Cir. 1996). In
neither case was his testimony found persuasive. And
nothing in the Motion suggests that he is bi-lingual, one
of the primary qualifications for an additional expert
suggested by Geffen.
Nothing in the Motion gives any reason to believe
that Keyes will be able to accomplish anything more with
Petitioner than conduct another interview (which is sim-
ply repetitive of what half a dozen other experts already
75
have done), and even if some testing could be accom-
plished by him, the virtual certainty that Petitioner will
not cooperate with any non-defense person attempting
similar testing would cause an unfair disparity in access —
to evidence which would be grounds for precluding the
evidence. The Vineland Scale as described in the Motion
at 7 apparently is just a structured interview of people
who have had contact with the subject, and no good
reason is provided why this could not have been done
years ago by Geffen (who has been involved with Peti-
tioner’s case since 1993) or some other local expert.
Hence, there is no reason to believe that anything helpful
will be accomplished by the appointment of Keyes.
CONCLUSION
The Court does not possess the jurisdiction to issue
the orders which the Motion requests, and even if it did,
the reasons presented for doing so are so meritless that
granting the motion would constitute an abuse of discre-
tion. This motion is a transparent attempt to achieve a
backdoor stay of execution and the Court should not lend
its dignity to such gameplaying. The requests should all
be denied and Petitioner directed to take the issue to the
Ninth Circuit, where it should have been presented in the
first place.
76
DATED this 14th day of May, 1997.
Respectfully submitted,
GRANT WOODS
ATToRNEY GENERAL
/s/ Bruce M. Ferg
BRUCE M. FERG
AssISTANT ATTORNEY GENERAL
Attorneys For RESPONDENTS
COPIES of the foregoing were FAX’d and
deposited for mailing this 15th day of May, 1997, to:
DENISE YOUNG
Federal Public Defender Office
222 N. Central Ave., Suite 810
Phoenix, AZ 85004
/s/ Mary Lou Reinhardt
MARY LOU REINHARDT
CRM86-0720
CR860720.ex2
performed. Although an MRI test could be useful, the
results would mostly shed light with respect to ‘struc-
tural’ abnormalities of the brain as opposed to functional
ones. I communicated to the client’s attorney that I would
specially recommend a specific procedure (computerized
EEG, also known as neurometric EEG, “‘brainmap’ and
qEEG), since the question of malingering was raised. This
77
procedure does not depend on any client self report, but
is based on fairly direct measurement of electrical activity
of the brain and comparing the results to computerized
norms for patients with affective, psychotic, and organic
disorders, as well as normal individuals.
In normative mental health treatment of schizophrenic
and other psychotic patients, medication begins to be
given very early even if the diagnosis has not been defi-
nitely confirmed, on a presumptive basis, in order to
reduce the patients’ suffering and help them become less
disorganized. It is puzzling to me why Mr. Villareal is not
being medicated at this stage, when the question of his
competence to be executed is being raised. Perhaps the
medication could help him to become competent, if he is
not.
Regarding the report of ‘malingering,’ I am not satisfied,
based on the record and the interview observed, that any
credible psychological evaluation was performed upon
which such a conclusion could be based. In fact, it is
incredible that with all the history revolving around Mr.
Villareal’s behavioral problems and the many years in the
institution, that there is no report of any formal psycho-
logical evaluation performed by the institutional mental
health staff. What little assessment seems to have been
reported, there is a glaring absence of Spanish Language
or culturally sensitive professional treatment other than
by paraprofessional staff, even though the psychological
and psychiatric literature has maintained for quite some
time that this should be the standard for language and
cultural minority patients. If there is not adequate appro-
priately trained staff at the facility to provide evaluations
meeting such standards, this could have and still can be
78
obtained by drawing from outside resources. There are
Spanish speaking psychiatrists and psychologists in the
Tucson, Phoenix and Casa Grande areas who are avail-
able to be called in.
Finally, I would like to comment regarding my under-
standing that legally, those being asked by the con-
demned prisoner’s attorney, through a court order, to
‘provide an evaluation to determine competence to be
executed be given full access to all the information that is
obviously available to the institutional staff serving the
prosecutor. In my opinion this was not followed in this
case either in the letter or the spirit of the law, from my
standpoint; it was a matter of “too little and too late.”
Given the available data, it is my opinion that Mr. Vil-
lareal does not meet the mental standard that would
correspond
79
EX. 2
IN THE SUPERIOR COURT OF
THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PINAL
STATE OF ARIZONA,
Plaintiff,
vs.
RAMON MARTINEZ-
VILLAREAL,
Defendant.
No. CR 97-022291
ee ee ee ee ee eee ee ee ee”
BEFORE THE HONORABLE BOYD T. JOHNSON
Florence, Arizona
May 7, 1997
8:40 o'clock a.m.
Mesa Court Reporting
PREPARED FOR:
at 265 North Gilbert Road, #2151
ATTORNEY Mesa, Arizona 85203
GHNERAL (602) 964-8507
opy) By: Leisel Akins, RPR
[p. 71] seen of the reports, that the defendant is not
competent?
I believe in answer to the question Mr. O’Brien asked
you, you couldn’t rule out that he was incompetent but
you can’t also rule out, can you, Doctor, that he is compe-
tent?
A That's correct. That’s correct.
80
Q So, in other words, if we ask the other half of the
question that Mr. O’Brien didn’t ask, is that you can’t rule
out the fact that he’s competent; is that correct?
A You're correct, yes.
Q And it’s also true, is it not, Doctor, that the diag-
noses of Dr. Pincus do not preclude the finding that the
defendant is competent to be executed; is that correct?
A No. None of these diagnoses really addresses that
issue. Saying that somebody has frontal lobe damage or
brain damage, saying that somebody is mentally
retarded, it does not really address that issue in any
specific way.
Q So that doesn’t preclude the finding by this Court
that he’s competent to be executed; is that correct?
A That's correct.
* * *
[p. 75] determination. That was your question?
MR. WILKES: Right. And I wanted the doctor
to answer that.
THE COURT: Well, what I’m going to do, sir, is,
I’m going to answer it and say that when reviewing all
the reports, I made the determination in my ruling of
whether I refuse or decline to order additional testing,
that it was not relevant. And I based it in part on what
Dr. Tamm put in his report, plus other information avail-
able to me.
Does that satisfy what you want for a record?
81
Or. Tamm, would you say it’s not - it would not be
beneficial to have those additional tests?
THE WITNESS: I don’t think it will tell you - I
don’t think it will give you the answer to the question
you're asking.
THE COURT: Okay.
MR. WILKES: I have no further questions.
THE COURT: And that was an offer of proof. I
am not taking that testimony itself. I have relayed on the
record what my decision was, was to not have the addi-
tional testing.
MR. BRUNER: Judge, can I just get th
word on that in? ; aly
82
Fredric F. Kay
Federal Public Defender
Denise I. Young (Arizona Bar No. 007146)
Dale A. Baich (Ohio Bar No. 0025070)
222 North Central Avenue, Suite 810
Phoenix, Arizona 85004
602.379.3670
602.379.3681 facsimile
Sean D. O’Brien (Missouri Bar #30116)
Public Interest Litigation Clinic
5319 Rockhill Road
Kansas City, Missouri, 64110
816.363.2795
816.363.2799 facsimile
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CAPITAL CASE
EXECUTION
SCHEDULED FOR
5-21-97
No. CIV-86-296 TUC RMB
RAMON MARTINEZ- _ )
)
)
)
.
TERRY STEWART, et al, | REpiy TO RESPONSE TO
)
)
)
)
)
)
VILLAREAL,
Petitioner,
vs.
Respondents. MOTION FOR EXPERT
SERVICES AND/OR
ACCESS TO CLIENT
AND APPOINTMENT OF
COUNSEL AND
SUPPLEMENTAL EXHIBIT
Counsel for petitioner attempted to challenge his
competence for execution before this Court in 1994. At
that time, respondent objected on the grounds that the
issue was not ripe, and that is should be raised at a later
83
time. Now respondent has changed his position, saying
et the competence issue cannot now be raised in a
successive” petition because it is unrelated to his guilt or
innocence of the crime. If examined literally, respondent's
argument is that the Antiterrorism and Effective Death
Penalty Act effectively deprives all federal district courts
of jurisdiction to enforce the Eighth Amendment prohibi-
tion on the execution of the insane. Nothing in the legis-
lative history or text of the statute indicates an intent to
divest the federal courts of jurisdiction to enforce any
right recognized under the federal constitution.
The constitutional nature of the right at issue in this
case is not open to question. The Supreme Court has
definitively ruled that the Eight [sic] Amendment “pro-
hibits a state from carrying out a sentence of death upon
a prisoner who is insane.” Ford v. Wainwright, 477 U.S.
399, 409-410 (1986). Since Marbury v. Madison, the power
and duty of the federal courts to enforce the constitution
has been beyond dispute. Though some restrictions were
placed upon the writ of habeas corpus in the recent
legislation, Congress continued to respect the role of fed-
eral courts to interpret the Constitution:
In the great 1803 case of Marbury v. Madison
Chief Justice John Marshall yw Perera the
Supreme Court that “it is emphatically the prov-
ince and duty of the judicial department to say
what the law is.” Section 104(3) would be sub-
ject to serious constitutional challenge if it were
red [sic] to preclude the Federal Courts from
making an independent determination of “what
the law is” in cases within their jurisdiction. I
expect that the courts, following their usual
practice of construing ambiguous statutes to
84
avoid constitutional problems, will read section
104 to permit independent Federal Court review
of constitutional claims based on the Supreme
Court’s interpretation of the Constitution and
Federal Laws.
Statement by President William Jefferson Clinton upon
signing S. 1965, April 24, 1996, 1996 WL 517206. Respon-
dents, however, seeks to limit the power of this Court by
procedural artifice - first by defending the issue in prior
proceedings on the ground that it should be raised now,
and now claiming that it should have been ruled upon
then. As discussed below, in a similar situation, the sev-
enth circuit recently rejected a state’s abuse of the writ of
argument that “would have the effect of mouse trapping
[the petitioner].” Burris v. Parke, 95 F.3d 465, 469 (7th Cir.
1996) (en banc).
Here, after successfully persuading this Court in the
earlier proceedings in this matter that Petitioner's claim
that he was incompetent to be executed was “not now
ripe for determination” and should be brought when an
execution “warrant has been issued,” Martinez-Villareal v.
Lewis, CIV 86-296-TUC-RMB, Reply to Response to
Motion for Summary Judgment, at 45-46 (Dec. 17, 1993),
Respondents now take a completely contrary position
and claim that this claim is now too late, and can never be
heard by a federal court. Respondents do so despite the
fact that Petitioner did exactly as Respondents, and this
Court, told him to do: reassert this claim after a warrant
of execution issued. Petitioner is scheduled to be exe-
cuted at 12:05 a.m. on May 21, 1997.
85
On these facts, there is no question but that Respon-
dents are judicially estopped from taking this inconsis-
tent position in this Court. As the Ninth Circuit has
explained,
the doctrine of judicial esto i
ppel, sometimes
referred to as the doctrine of preclusion of
inconsistent positions, is invoked to prevent a
party from changing its position over the course
of judicial proceedings when such positional
changes have an adverse impact on the judicial
process.
Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). The
doctrine is “intended to protect the integrity of the judi-
cial process by preventing a litigant from ‘playing fast
and loose with the courts.” Helfand v. Gerson, 105 F.3d 530
533 (9th Cir. 1997) (quoting Russell v. Rolfs, 893 F.2d at
1037). In Russell, the Ninth Circuit applied the judicial
estoppel doctrine to prevent the state from taking a
directly contrary position under circumstances strikingly
similar to those presented here. There, the state “per-
suaded the district court to deny [the habeas corpus
petitioner] federal review on the ground that he had an
‘adequate and available’ state remedy” to exhaust his
claim. Id., at 1038. However, once the petitioner returned
to state court, the state “disregarded its previous repre-
sentation in federal court and argued the petition was
procedurally barred because [the petitioner] had raised
the same issues on direct appeal.” The state court ulti-
mately agreed, and found the claim procedurally
defaulted. However, when the petitioner returned to fed-
eral court, the state argued that the petitioner “was pro-
cedurally barred from presenting his claim in federal
86
court.” Id. at 1037. The appellate court held that the
state’s earlier action estopped it mt > tc
different tion. See also, Yniguez 0. ,
F.2d a cin (Attorney General judicially estopped
from “about-face” where he sought “an outcome [in the
appellate court that was] directly contrary ny the result he
sought and obtained in the district court ).
contend that the changed circumstances
veut aaa the amendments to 28 U.S.C. § 2244(b)
contained in the Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”) support their “about-face.” That con-
tention is unavailing. As another circuit court recently
explained when a state offered a similar argument follow-
ing passage of the AEDPA:
Application of the new law to [petitioner's] case
sn thus, . . . have the effect of mousetrap-
ping [the petitioner]. It would cause him to for-
feit a legal remedy on which his life, may
literally depend.”
is v. Parke, 95 F.2d at 469. In Burris, the petitioner
sas. tadmorh kchenmanntiaivedtiondeiiaminaen we
conviction because the appeal from his capital resentenc-
ing hearing was still pending in the state courts. After his
habeas petition was denied by the federal courts, the
petitioner filed a second federal habeas petition challeng-
ing his now exhausted capital sentencing claims. While
the second habeas petition was pending on appeal, the
AEDPA was enacted. Id., at 467-468. The state claimed
that because the AEDPA did not allow challenges to
sentences in a second habeas petition, the petition had to
be immediately dismissed.
87
The circuit court, however, concluded otherwise. It
found that the new changes contained in the AEDPA did
not apply to Burris because at the time the first habeas
petition was filed, all parties, including the state, believed
Burris could file a second petition challenging his sen-
tencing issues once they were exhausted in the state
courts. The court noted that the hearing transcript on the
first petition gave “no hint” that proceeding this way
“might have precluded [Burris from] filing a second peti-
tion limited to the sentence, and in fact the “silences are
deafening.” Under these circumstances, the court con-
cluded that:
the state’s silence concerning the implications of
an immediate decision on the petition was tanta-
mount to a statement that for the sake of a
prompt decision on the merits of Burris’s chal-
lenge to his conviction the state would forgo the
defense of abuse of the writ should he file a
subsequent petition limited to the sentence.
Id., at 470. As a result, the “state forfeited any defense”
preventing the claims to be heard on the merits in the
second petition.
Here, the state was not silent. It forcefully and vocif-
erously argued that Petitioner’s competency to be exe-
cuted claim was premature, and as a result the Court did
not yet have jurisdiction to here [sic] it:
execution. Moreover, mental competency, of
course, can change over the course of time.
Thus, the claim presents nothing more than a
possibly future injury, which is insufficient to
satisfy the Art III ‘case or controversy’ require-
ment, and there currently is no issue over which
this Court properly has jurisdiction.”
Martinez-Villareal v. Lewis, CIV 86-296-TUC-RMB, Reply to
Response to Motion for Summary Judgment, at 45 (Dec.
17, 1993). Claiming Petitioner’s desire to have the claim
decided at that time was “unworkable,” Respondents
stated that it was important to:
have a single adjudication of competency, at a
time when all [petitioner’s] other claims have been
resolved and a warrant has been issued, so that an
execution actually is imminent within a reasonable
period of time . . . To do a competency determination
now would be futile, because it will certainly have to
be repeated when the time for execution finally
arrives.
Id.
Now that everyone has relied on this position,
including Mr. Martinez-Villareal whose very life depends
on his reliance, this Court should hold Respondents
estopped from taking this “about-face.”
Just as it is clear that the proceeding in this Court is
not a successor corpus proceeding,’ so too is it clear that
1 Respondents are also wrong in their contention that
counsel cannot be appointed in a successor habeas petition.
Weeks v. Jones, 100 F.3d 124, 128 (11th Cir. 1996) (district court
erred legally and procedurally in denying appointment of
89
this Court has the authority to appoint counsel, which
has been done, and to consider the issues now before the
Court. Mr. Martinez-Villareal has “a right to preapplica-
tion legal assistance . . . in federal habeas corpus proceed-
ings[,]” and this assistance extends to services that may
be critical in the preapplication phase of a habeas corpus
proceeding. McFarland v. Scott, 512 U.S. 849, __, 114 S.Ct.
2568, 2572 (1994) citing 21 U.S.C. § 848(q)(9); see also
Calderon v. United States District Court for the Eastern Dis-
trict of California (Gordon), __ F.3d __, 1997 WL 183877,
at “1, "6 (9th Cir. Apr. 16, 1997) (A post conviction pro-
ceeding within the meaning of § 848(q)(4)(B) begins upon
the filing of a motion requesting the assistance of counsel
and the court has discretion to provide counsel with
assistance to prepare for federal habeas efforts.) McFar-
land and Gordon are not at all ambiguous. The assistance
rs ee is now seeking is available under
w.
Respondents’ attempt to have this Court dismiss Mr.
Martinez-Villareal’s meritorious constitutional claims
without the benefit of resources authorized under 18
U.S.C. § 848 is also inconsistent with the power of this
Court to provide indigent litigants the resources to chal-
lenge an unconstitutional sentence of death. Again, the
statute has not rendered this Court impotent with respect
to the adjudication of the factual aspects of a constitu-
tional claim. Again, the President observed:
counsel in successor habeas ition chall i
evs ee aw challenging capital
_ 7 ,*
90
Section 104(4) limits the evidentiary hearings in
Federal habeas corpus cases when “the appli-
_ cant has failed to develop the factual basis of a
claim in State court proceedings.” If this provi-
sion were read literally to deny litigants a mean-
ingful opportunity to prove the facts necessary
to vindicate their constitutional rights, it would
raise serious constitutional questions. I do not
read it that way. The provision applies to situa-
tions in which “the applicant has failed to
develop the factual basis” of his or her claim.
Therefore, section 104(4) is not triggered when
some factor that is not fairly attributable to the
applicant prevented evidence from being devel-
oped in state court.
Statement by President William Jefferson Clinton upon
signing S. 1965, April 24, 1996, 1996 WL 517206. Petitioner
seeks only those resources which he requested and was
denied by the state courts, and which are relevant to the
issue-injected by the state - of whether he has the mental
faculties to successfully dupe treating physicians for
almost ten years.
The issue of mental retardation and malingering is
important in this case in light of the circular reasoning of
the state’s experts - that Mr. Martinez-Villareal’s manipu-
lative behavior, itself a symptom of retardation and brain
damage - proves his awareness of his crime and punish-
ment. The services of an expert in mental retardation is
critical to a reliable resolution of this issue. As Dr. Denis
W. Keyes, Ph.D., explains in his letter to Sean D. O’Brien,
dated May 13, 1997, attached as Exhibit F, and offered as
further support for the requests made in ¥{ 10, 10.1, 10.2
and 10.3 of the Motion for Access:
91
The reports of Dr. Joseph Geffen, Dr. Jonathar.
Pincus, and Dr. Leonardo Garcia-Bunuel are
exceptional examples of thorough mental health
examinations that strongly indicate the exis-
tence of mental retardation. However, none of
these can be considered conclusive in their diag-
pote hg eae poedy formal evaluation of the
ent’s a ve skill functionin
1992; DSM IV, 1994) . . ee
Testing procedure for people who have mental
retardation require advance planning in several
areas. People with mental retardation often
attempt to “pass” for normal by assuming a
posture of false-awareness and false-ability,
known as the “Cloak of Competence” (Edger-
ton, 1966). For most people with little or no
experience in the field of mental retardation,
including many mental health professionals,
this usually harmless deception may sometimes
appear to be behavior one might merely regard
as eccentric... .
Conversely, examiners, particularly those with
little or no experience working with people who
pe eee pees have sometimes accused
examinees of malingering or faki
idl gering ng mental
The most glaring omission in each and all of the
previously evaluations is the com-
plete lack of any type ot adaptive behavior scale
or instrument. As stated, it is impossible to
determine the existence or severity of mental
retardation in an examinee unless his/her adap-
tive behavior (or adaptive skill levels) have been
investigated.
Exhibit F, attached.
92
Because the State’s witnesses in this case are clearly
not familiar with mental retardation, much of Petitioner’s
behavior which is attributable to this serious disability
was dismissed as evidence of malingering. The fact that
Respondents refer to Mr. Martinez-Villareal’s mental
retardation as “merely mild” reflects a lack of under-
standing of the nature and severity of Petitioner's intel-
lectual limits. Dr. Keyes could explain that mild mental
retardation simply describes Mr. Martinez-Villareal with
respect to other mentally retarded persons and that com-
pared with individuals of normal intellectual functioning,
he is severely impaired. Furthermore, it is unfair to dis-
miss Dr. Keyes’ credibility without giving him an oppor-
tunity to evaluate Mr. Martinez-Villareal and testify
simply because he has provided testimony in other cases.
Respondents neglect to mention one case in particular, In
the Matter of Charles Lee Mathenia, in which a Missouri
Associate Circuit judge relied upon Dr. Keyes’s testimony
in finding a condemned prison [sic] incompetent for exe-
cution based solely on “mild” mental retardation.
This Court’s earlier ruling that the Ford issue in this
case is not successive or abusive should stand. It is con-
sistent with the majority of courts that have considered
the issue:
Moreover, our research indicates no reported
decision in which a federal circuit court or the
Supreme Court has denied relief of a peti-
tioner’s competency-to-be executed claim on
grounds of abuse of the writ.
Barnard v. Collins, 13 F.3d 871, 878 (5th Cir. 1994). That
case also held that the district court abused its discretion
in refusing to extend to Barnard the benefit of 18 U.S.C.
93
§ 848, which provides for the appointment of counsel and
reasonably necessary investigative, expert and other ser-
vices. Id. at 879.
In conclusion, petitioner asks this Court to reject
Respondents’ attempt to finesse the jurisdiction of this
Court to enforce the constitution.
Respectfully submitted this 15th day of May, 1997.
Fredric F. Kay
Federal Public Defender
Denise I. Young
Dale A. Baich
Sean D. O’Brien
By /s/ Denise I. Young
COUNSEL FOR PETITIONER
Copy of the foregoing mailed and
transmitted by facsimile on
this 15th day of May, 1997 to:
Bruce M. Ferg
Assistant Attorney General
Office of the Attorney General
400 West Congress, Bldg. S, Ste. 315
Tucson, AZ 85701-1367
520.628.6530
/s/ Denise I. Young
94
EXHIBIT F
Denis William Keyes, Ph.D. .
Department of Educational Foundations
and Specializations
School of Education - The College of Charleston
Charleston, South Carolina 29424
Mr. Sean O’Brien, J.D.
Public Interest Litigation Clinic
5319 Rockhill Road
Kansas City, MO 64110
re: Arizona v. Ramon Martinez-Villareal
May 13, 1997
Dear Mr. O’Brien,
My name is Denis William Keyes, and I am currently a
tenured faculty member in the Department of Educa-
tional Foundations and Specializations at the University
of Charleston, South Carolina. I received my Doctor of
Philosophy Degree in Special Education from the Univer-
sity of New Mexico in May, 1992. I also hold a Master of
Education in Special Education, a Master of Science and
an Educational Specialist Degree in School Psychology
from Miami University, Oxford, Ohio. I have worked in
the field of mental retardation since 1974, was a teacher
of students who have mental retardation from 1979 to
1984. I have been state certified as a school psychologist
since 1988 (in Ohio, New Mexico (sic), and South Caro-
lina), Nationally Certified since 1989, and am a Diplomate
of the American Board of Forensic Examiners. I have
consulted for numerous legal protection and advocacy
agencies (particularly in the areas of mental retardation,
special education and the criminal justice system), and
have testified as an expert witness in both criminal and
95
civil justice suits in both state and federal courts. In my
research, I have published several articles in the field of
mental retardation, most of which deal with legal issues.
Since 1988, I have been active in cases involving the death
penalty and offenders with mental retardation. I should
like to preface my statement by saying that I am not
particularly against the imposition of the death penalty
either personally, morally, or philosophically. However, I
am vehemently opposed to the execution of people who
have mental retardation.
I am making this statement concerning the case of Arizona
vs. Ramon Martinez-Villareal. My concerns about this case
are myriad, first and foremost because there is enough
evidence to suggest that this man has mental retardation,
but none of the examinations performed so far have
included all the areas of assessment necessary for a
proper diagnosis. Additionally, any finding that Mr. Mar-
tinez-Villareal is competent cannot be considered exhaus-
tive until his actual mental functioning has been
determined beyond a reasonable doubt.
The reports of Dr. Joseph Geffen, Dr. Jonathan Pincus,
and Dr. Leonardo Garcia-Bunuel are exceptional exam-
ples of thorough mental health examinations that
strongly indicate the existence of mental retardation.
However, none of these can be considered conclusive in
their diagnoses since each lacks a formal evaluation of
the client’s adaptive skill functioning (see AAMR, 1992;
DSM IV, 1994).
There are several important facts to consider in any diag-
nosis of this man’s mental condition:
96
1. Ramon Martinez-Villareal has experienced extreme
poverty;
2. He is culturally very different from most American
citizens;
3. He is a Mexican National who speaks virtually no
English;
4. He is diabetic, a disorder of metabolism that can
cause progressive damage to the brain;
5. He is functionally illiterate and has had no formal
education;
6. He has been diagnosed as paranoid schizophrenic, a
severe mental illness that can lead to mental retarda-
tion (see AAMR. 1992);
7. He is described as both mentally retarded & capable
by various psychologists who have limited, if any,
experience with mental retardation; and,
8. He has evidenced concrete, circular and illogical
thought processes.
Testing procedures for people who have mental retarda-
tion require advanced planning in several areas. People
with mental retardation often attempt to “pass” for nor-
mal by assuming a posture of false-awareness and false-
ability, known as the “Cloak of Competence” (Edgerton,
1966). For most people with little or no experience in the
field of mental retardation, including many mental! health
professionals, this usually harmless deception may some-
times appear to be behavior one might merely regard as
eccentric. In Mr. Martinez-Villareal’s case, his ‘cloak of
competence’ may be practiced enough to convince even
experienced psychologists and psychiatrists, resulting in
an incorrect diagnosis of below-average intellect or
97
malingering, instead of the correct diagnosis of mental
retardation. Certain tests, when correctly administered
and scored, can more effectively determine intellectually
abnormal behavior. Of the tests that have been adminis-
tered, only one was clearly a diagnostic test for mental
disabilities. However, even if more appropriate testing
instruments were used, there is simply no substitute for
actual testing and teaching experience with those people
who have mental retardation (see generally, Conley
Luckesson, & Bouthilet, 1992).
It is of serious concern to me that those people who have
interacted with Mr. Martinez-Villareal consistently note
variation in his level of functioning. Sattler (1988), in
discussing testing procedures for people with mental
retardation, reports that behavior during testing that is
“... Megativistic may enable the retarded . . . to maintain
self-esteem in the face of difficult intellectual or social
demands” (p. 95). Additionally, an examinee’s persistent
questioning of an examiner may “represent an effort to
ensure stability” in responding, thus “fooling” the exam-
mer into an incorrect judgment of heightened compe-
tence. Conversely, examiners, particularly those with
little or no experience working with people who have
retardation, have sometimes accused examinees of malin-
gering or faking mental retardation. Research indicates
that it is not possible for an examinee to fake mental
retardation on tests of intelligence, and maintain consis-
tent intelligence scores (Keyes, 1992). Mr. Martinez-Vil-
lareal’s scores have been remarkably consistent over time.
It would also appear that, while malingering has been
Proposed, there is no consistent evidence to back up its
existence.
98
The statement by Mr. Marciano Munoz, M.A., that Mr.
Martinez-Villareal is “rational and his thought content is
logical” is highly questionable, given the content of his
entry for February 27, 1997. On this date, Mr. Martinez-
Villareal stated that he would “hurt himself” if he was
not moved because of the pressure of being near a partic-
ular inmate whom Mr. Martinez-Villareal believed was
harassing him. As stated in Mr. Munoz’s record, this has
happened before, and Mr. Martinez-Villareal has hurt
himself before. The odd thing is that both Mr. Munoz and
his supervisor, Dr. McCauley, seemed to miss a resulting
pattern that is quite clear: First, Mr. Martinez-Villareal
moves to a cell, begins to experience voices and harass-
ment, complains that he must be moved or he will hurt
hims«lf, is moved to another cell - fully believing that
moving to another cell block will take care of the prob-
lem, and then the voices and harassment start once again.
Such thinking is neither rational or logical — but it is the
sort of circular, concrete thought expected of a man with
mental retardation and mental illness.
The most glaring omission in each and all of the previ-
ously performed evaluations is the complete lack of any
type of adaptive behavior scale or instrument. As stated,
it is impossible to determine the existence or severity of
mental retardation in an examinee unless his/her adap-
tive behavior (or adaptive skill levels) have been investi-
gated. Given this fact, the continuance of this case is an
absolute must, if only in order to see that Mr. Martinez-
Villareal’s adaptive skill functioning is accurately deter-
mined so that the court can be fully informed as to the
severity of his present mental condition.
99
In cases of severe or profound mental retardation, it is
often impossible for the trained psychologist to perform
accepted standardized assessment procedures. This is
because people with such severe disabilities often lack
even the basic skills for testing procedures. However, the
nature of mild or educable mental retardation is some-
times so subtle that evaluators who lack experience with
people who are mentally retarded may question or deny
their test results. It is quite possibly for this very reason
that Dr. Geffen has expressed that he is somewhat unsure
of his intellectual diagnosis of Mr. Martinez-Villareal.
Psychologists who make diagnoses of mentally normal or
retarded based primarily upon an interview format have
little understanding of the severe and sometimes beguil-
ing nature of this disability, even in its mild form.
It is my professional opinion that evaluations previously
performed represent a good investigation into the evalua-
tion of Mr. Martinez-Villareal’s current functioning. At
best, however, I am unclear as to why an inventory of
adaptive behavior was not performed, since it is abso-
lutely necessary for diagnosing mental retardation. The
absence of a strategy for assessing adaptive skill areas
indicates the examiner(s) may not be very familiar with
the definition and various behavioral aspects of mental
retardation. For such an important evaluation, a psychol-
ogist with expertise in the field of mental retardation
would have been far more appropriate than one lacking
expertise in the field.
100
If you have any concerns or questions, please feel free to
contact me at (803) 953-4840, or (803) 762-3681.
Sincerely,
/s/ Denis W. Keyes
Denis W. Keyes, Ph.D.
Nationally Certified School Psychologist
Diplomate of the American
Board of Forensic Examiners
Assistant Professor of Special Education
The College of Charleston/University
of Charleston, SC
copy: Mr. Dale Baich
FAX (602) 379-3681
101
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MARTINEZ-
)
VILLAREAL, ) No.
Petitioner, CIV-86-296-TUC-RMB
a ) ORDER
)
TERRY L. STEWART, et al., ) (Filed May 16, 1997)
Respondents. )
)
Ramon Martinez-Villareal (“Petitioner”), a death row
inmate, is before the Court seeking expert services pur-
suant to 21 U.S.C. § 848(q) so that his competency to be
executed claim can be developed and presented to the
Court. His execution is set for May 21, 1997. Section
848(q) permits the Court to provide the services of
experts in the preapplication phase of a habeas corpus
proceeding. The State opposes the requested relief, assert-
ing that the Petitioner’s Motion for Expert Services con-
templates a successive petition and, therefore, the Court
lacks jurisdiction to take any action.
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) contains provisions curtailing the scope
and availability of federal habeas corpus relief for pris-
oners, including those under sentence of death. In partic-
ular, the AEDPA amends the habeas corpus statutes to
Provide that a second petition presented to a district
court must be dismissed unless it presents a claim that
either 1) “relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable,” or 2) that is
102
based on facts that could not have been discovered earlier
“through the exercise of due diligence” and if proved
would “establish by clear and convincing evidence that
but for constitutional error, no reasonable factfinder
would have found the [the Petitioner] guilty of the under-
lying offense.” 28 U.S.C. 2244(b)(2). Before the district
court may consider a second or successive application
permitted be [sic] § 2244(b)(2), the applicant must make a
motion in the Court of Appeals for an order authorizing
the district court to consider the application. See 28 U.S.C.
2244(b)(3)(A). A claim of lack of competency to be exe-
cuted does not fall within either of the exceptions set
forth in § 2244(b)(2).
The issue of whether the Petitioner is competent to be
executed was raised before this Court in his March 25,
1993 Amended Petition. The State argued that the compe-
tency to be executed claim was not ripe for decision
because the Petitioner’s competency could change over
time and because the Petitioner was not under a present
warrant of execution. On October 21, 1994, this Court
found that the Petitioner did not receive effective assis-
tance of counsel at sentencing and remanded for re-
sentencing. See Order and Memorandum Opinion of
October 21, 1994. The Court also agreed with the State
and found that because the Petitioner was not presently
under a warrant of execution, the competency to be exe-
cuted claim was premature and dismissed that claim
without prejudice. See id. The remaining claims were
denied with prejudice. See id. On appeal, the Ninth Cir-
cuit Court of Appeals reversed the Court’s decision on
the ineffective assistance of counsel claims, stating that
they were procedurally barred, and affirmed in all other
103
respects. See Martinez- Villareal v. Lewis, 80 F.3d 1301 (9th
Cir.), cert. denied ___ U.S. __, 117 S.Ct. 588, 136 L.Ed.2d
517 (1996). On February 28, 1997, the Court issued an
amended order which comported with the
Ninth Ciecuit. mandate of the
The AEDPA, which changed the law related to suc-
cossive habeas corpus petitions, was passed after this
Court s October 21, 1994 ruling on the Amended Petition
In its October 21, 1994 Order, this Court did not contem-
plate that deciding the issue of whether the Petitioner is
competent to be executed would constitute a successive
petition. In fact, the Court’s Order denying the Peti-
tioner’s Motion for Reconsideration specifically recog-
nized that the issue would not be treated as a successive
petition. See Order of March 25, 1997.
. After a review of the pleadings and oral argume
this Court concludes that, as result of the AEDPA, it “01
not have jurisdiction to entertain the relief sought by the
Petitioner. See In re Medina, 109 F.3d 1556 (11th Cir. 1997);
Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997). Con-
gress may constitutionally limit the jurisdiction of the
courts. Landgraf v. USI Film Products, 511 U.S. 244, 273
114 S.Ct. 1483, 1501, 128 L.Ed.2d 229 (1994). The Court
agrees with the Petitioner that the AEDPA effectively
deprives all federal district courts of jurisdiction to enter-
tain second petitions raising Eighth Amendment “compe-
tency to be executed” claims. However, this does not
mean that the Petitioner has forfeited his legal remedies.
stant tne Petitioner may apply for certiorari review of the
a court competency proceedings with the United
ates Supreme Court. The Petitioner may also file an
original habeas application to the United States Supreme
104
Court. See Felker v. Turpin, __ U.S. __, 116 S.Ct. 2333,
2338-39, 135 L.Ed.2d 827 (1996) (the provisions of section
2244(b), as amended, do not restrict the Supreme Court's
original habeas authority). Finally, the Petitioner may
apply to the Court of Appeals for permission to proceed
in the district court. Thus, although the Petitioner cannot
bring his Eighth Amendment competency to be executed
claim in this Court at this time, he is not precluded from
federal review of this claim.
Although this Court may not review the Petitioner's
competency to be executed at this time, the Court recalls
that it had the opportunity to observe the the [sic] Peti-
tioner in 1994. This Court can only state that its observa-
tions of the Petitioner in 1994 called into serious doubt
the Petitioner's competence. At the three-day evidentiary
hearing before this Court on the Petitioner’s original
amended petition, the State psychiatrist testified that if
the Petitioner was presently incompetent, it was because
he was not receiving the correct medication. The Court
then asked the psychiatrist if that meant that the State
could medicate in order to eradicate. The expert
answered “yes.” The report of Dr. Jonathan Pincus, dated
April 1, 1997, states that the Petitioner has not been
receiving medication. See Exhibit C to Motion for Expert
Services. This fact alone raises serious concerns in the
mind of this Court as to whether the Petitioner is pres-
ently capable of understanding 1) that he is to be pun-
ished by execution, and 2) why he is being punished.
Without more guidance from the Ninth Circuit or the
United States Supreme Court, this Court concludes that it
lacks jurisdiction to review the state court proceedings
105
below to ensure that the Petitioner is receiving his medi-
cation and, therefore, is competent to be executed
Dated this 16th day of May, 1997.
/s/ Richard M. Bilby
Richard M. Bilby
Senior United States District Judge
106
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
RAMON MARTINEZ-
)
VILLAREAL, ) No.
Petitioner, CIV-86-296-TUC-RMB
aay ) ORDER
TERRY L. STEWART, et al., ?
a) (Biled May 16, 1997)
Respondents. )
)
On April 24, 1996, the “Antiterrorism and Effective
Death Penalty Act of 1996” (the “Act”) was signed into
law, amending 28 U.S.C. § 2244, 2253, 2254, 2255, Appel-
late Rule 22, and 21 U.S.C. § 848(q). Rule 22(b) of the
Federal Rules of Appellate Procedure, as amended, pro-
vides that if an appeal is taken by a petitioner, the district
judge who rendered the judgment shall either issue a
certificate of appealability or state the reasons why such a
certificate should not issue. Section 2253 of Title 28,
United States Code, as amended, provides that a certifi-
cate may issue “only if the applicant has made a substan-
tial showing of the denial of a constitutional right.” In the
certificate, the court must indicate which specific issues
satisfy this showing. 28 U.S.C. § 2253(c)(3).
Concurrently with this Order, the Court issued an
Order denying Petitioner's Motion for Expert Services
(“Motion”). This Court concluded that, without more
guidance from the Court of Appeals or the United States
Supreme Court, it lacked jurisdiction. The Court is satis-
fied that, through his incompetence to be executed claim,
107
the Petitioner has made a substantial showing of the
denial of a constitutional right.
Dated this 16th day of May, 1997.
/s/ Richard M. Bilby
Richard M. Bilby
Senior United States District Judge
108
CAPITAL CASE: EXECUTION SCHEDULED FOR
12:05 A.M. MAY 21, 1997
No. 97-80229
IN THE
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON MARTINEZ-
VILLAREAL,
)
)
Petitioner / Appellant,
VS. )
TERRY STEWART, et al., ‘
Respondents / Appellees. |
No. 94-99011, 94-99012
IN THE
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON MARTINEZ-
VILLAREAL,
)
)
Petitioner/ Appellant,
vs. )
SAMUEL LEWIS, et al., ;
Respondents / Appellees.
109
ON APPEAL FROM THE UNIT ED STATES
DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
MOTION FOR CERTIFICATE OF PROBABLE CAUSE;
MOTION FOR REMAND TO FILE FED.R.CIV. P 60(B)
MOTION; MOTION FOR LEAVE TO FILE SUCCESSOR
PETITION; MOTION TO RECALL THE MANDATE
AND MOTION FOR STAY OF EXECUTION
INTRODUCTION
This case has previously been before this Court. Mar-
tinez-Villareal v. Lewis, 80 F.3d 1301 (9th Cir. 1996). In
disposing of it, however, this Court reserved judgment on
one issue: whether Mr. Martinez-Villareal was competent
to be executed. Id. at 1309, n.1. It did so on the ground,
urged by Respondents, who had earlier persuaded the
District Court of the same thing, Order and Memoran-
dum Opinion, Oct. 21, 1994 [Doc. No. 136], at 19, that this
claim was “premature.” On remand, the District Court
entered an order dismissing the petition “without preju-
dice” so that this claim could be timely brought. Peti-
tioner moved for reconsideration under Fed.R.Civ.P. 59,
pointing out to the court that it could lose jurisdiction to
consider the reserved issue because of the enactment of
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Respondents did not respond to the motion.
The District Court denied the Rule 59 motion, Stating
clearly its belief that it could still consider the issue, and
specifically stating that the claim would not be
“treat[ed]” as “successive.” Order, Mar. 24, 1997. Respon-
dents remained silent, filing nothing to inform the court it
110
disagreed with this position. To preserve jurisdiction,
Petitioner filed notice of this appeal.
During this same time, Respondents sought and
obtained a warrant of execution. Proceedings were then
held in the Arizona state court regarding Petitioner's
competency. After denying Petitioner’s requests for
expert assistance and testing, the state court ruled that
Petitioner was competent, although it did not resolve the
disputed facts, except to note that there is credible evi-
dence on both sides. While the statutory review to the
Arizona Supreme Court is pending, Petitioner filed a
request for appointment of counsel and expert assistance
or access with the District Court. In response, Respon-
dents argued for the first time that the District Court had
lost all jurisdiction under the AEDPA. At oral argument,
the District Court said that, although it had grave reser-
vations about Petitioner’s competency (based on its pre-
vious observations) and thus believed the claim had
merit, it believed it had lost jurisdiction over the case due
to the dismissal of this petition and the passage of the
AEDPA.
Petitioner is thus caught in a Catch 22, an unpar-
alleled inequity: He has a substantial claim his execution
would be unconstitutional. The District Court and this
Court previously refused to address this saying it was
premature. The District Court then dismissed the petition
in the belief it could reconsider this claim later. Respon-
dents sat back silently and permitted this without regis-
tering disagreement or indicating they had changed their
previous position that the case could be brought back.
Now Respondents have asserted that federal jurisdiction
111
- consider this erious [sic] constitutional claim has been
ost, as an unintended result of the District Court's action
MOTIONS
, Petitioner has brought this appeal, and makes the
ollowing motions, to correct this pending injustice:
| 1. In Martinez-Villareal v, Stewart, No. 97-99009, Peti-
tioner moves for the following relief:
(a) A certificate of
| probable cause permittig [sic
par to appeal from the District Court’s order > eta
t 1s petition ‘without prejudice,” and its denial of the
motion for reconsideration of that order;
(b) Alternatively, leave to file a motion for relief
rom the judgment under Fed.R.Civ.P 60(b);
(c) Alternatively, leave to file a successor petition
‘ 2. In Martinez-Villareal v. Lewis, No. 94-99011 and
he Peittioner [sic] moves the Court to recall its
mandate and amend its decisioni [sic] to retain federal
jurisdiciton [sic i i
oe [sic] overy [sic] his present competency
3. , In both causes, Petitioner moves for a Stay of his
execution pending a resolutioin [sic] of all federal pro-
Petitioner also moves this Court for a stay of execu-
tion pending further Proceedings in thi
th
the District Court. ope” Heme oa
112
FACTS
The facts supporting these requests are:
1. Petitioner is mentally retarded with an LQ. of 64
and mentally ill, and he is unaware of hie pending execu-
tion and the reasons for it. In 1993, in his firet oy er
before the District Court, Mr. Martinez-Villareal, oe
counsel, alleged that he “did not and does not have t .
mental capacity to appreciate the nature of his —
Amended Petition for Writ of Habeas Corpus (“Habeas
Petition”), filed Mar. 26, 1993 at 7 4.16.’ Since Mr. =
tinez-Villareal did not and does not have the poor
capacity to appreciate the nature of his sentence, a
Ford v. Wainwright, 477 U.S. 399 (1986), his rights un ler
the Eighth and Fourteenth Amendment would be vio-
lated if he is executed. Id. at { 106.
2. In the 1993 District Court proceedings, Respon-
dents, however, persuaded the District Court that aoe
not have jurisdiction to hear the claim because it was om
now ripe for determination” and should be brought . en
an execution “warrant has been issued.” They said:
[T]his issue is not ripe for decision, because =
execution can take place without the issuance o
a warrant of execution, no such warrant —
ently exists, and the Arizona Supreme ae
apparently is not issuing such warrants og
ing defendants who are protected (as is
tioner) by a federal stay of execution.
1 The then-known facts supporting the claim were outlined
in {1 25 through 90 of the habeas petition.
113
Martinez- Villareal v. Lewis, CIV 86-296-TUC-RMB, Reply to
Response to Motion for Summary Judgment, at 45-46
(Dec. 17, 1993). Describing Petitioner’s desire to have the
claim decided at that time as “unworkable,” Respondents
Stated that it was important to:
have a single adjudication of competency, At a
time when all [petitioner's] other claims have been
resolved and a warrant has been issued, so that an
execution actually is imminent within a reasonable
period of time ... To doa competency determination
now would be futile, because it will certainly have to
be repeated when the time for execution finally
arrives.
Id. (emphasis added).
3. The District Court adopted Respondents’ posi-
tion:
At present, there is no execution warrant out-
standing as to Martinez-Villareal since this
Court issued its stay. Thus, Martinez-Villareal is
not facing execution nor with appellate review
will he face likely execution in the near future.
This claim is premature and denied without preju-
dice.
Order and Memorandum Opinion, Oct. 21, 1994, at 19
(emphasis added).
4. The District Court did issue the writ of habeas
corpus as to Mr. Martinez-Villareal’s death sentence after
concluding that he did not receive the effective assistance
of counsel. Order and Memorandum Opinion, Oct. 21,
1994, at 30.
5. On appeal, this Court found that the writ was
improperly granted because Mr. Martinez-Villareal’s
114
claim of ineffective assistance of counsel was pro-
cedurally barred. Martinez-Villareal v. Lewis, 80 F.3d at
1305. This Court explicitly stated, however, “[tlo elimi-
nate any ambiguity, we reiterate that the claim of Mar-
tinez-Villareal’s current incompetence was denied as
premature by the district court. That decision was not
challenged on appeal. Our instruction to enter judgment
denying the petition is not intended to affect any later litiga-
tion of that question.” Id. at 1309, n.1 (emphasis added).
6. On remand to the District Court, the District
Court entered an order again denying, “without preju-
dice,” Mr. Martinez-Villareal’s competency challenge.
Order and Entry, Feb. 28, 01997 [sic]. [Doc. Nos. 152 and
153]. Petitioner, however, moved to amend the judgment
pursuant to Fed.Civ.P. Rule 59 “direct[ing] the Court's
attention” to the AEDPA [the amendments to the federal
habeas corpus statutes encted [sic] in 1996] and quoted 28
U.S.C. § 2244(b)(1), (b)(3)(A) and § 2255. Petitioner sum-
marized the possible effect of these new enactments, not-
ing:
In other words, petitioner’s claim to incompe-
tence to be executed would be barred notwith-
standing this Court’s dismissal “without
prejudice.” This would contravene the clear
intention of the parties, violate due process
under the Fifth and Fourteenth Amendments,
and constitute an unconstitutional suspension of
the writ of habeas corpus in violation of Art. I,
Sec. 9 of the Constitution.
Martinez-Villareal v. Stewart, No. CIV 86-296-TUC-RMB,
Motion to Reconsider Order and Judgment (Mar. 11,
115
1997). Petitioner urged the District Court “ijn the inter-
ests of fairness,” “in an abundance of caution,” and to
Hem crs injustice” that would result if “peti-
a = es or was barred as a successive claim,” to
— order dismissing this claim, and hold “the
in abeyance pending the outcome of the current
proceedings” ongoing in state court
ad ent pend ourt. Id. at 2. Respondents
4 The District Court denied Petitioner’s motion
stating that the reason the competency to be enacted
claim was dismissed was because “it was not ripe when it
was presented. For this reason, the Court dismissed it
without prejudice.” Noting that Petitioner “warn[ed] the
Court that the premature claim could be precluded as a
successi
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