# Joint Appendix — Stewart v. Martinez-Villareal > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0115%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1998 - **Citation:** 523 U.S. 637 ## Text () - 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0115%3A06. Public record. Not legal advice.