Opposition Brief — Stewart v. Lambright

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Sent By: David P. Tiers; 520 792 9441; — Jan-2-02 11:16AM; Page

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\\ ¥ ee No. 01-691

IN THE iL

SUPREME COURT OF THE UNITED STATES

TERRY L. STEWART, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS,

Petitioners,

VS.

JOE LEONARD LAMBRIGHT,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Respondent asks leave to file the attached Brief in Opposition to Petition for Writ of

Certiorari without prepayment of costs and to proceed in forma pauperis.

[X] Respondent has previously been granted leave to proceed in forma pauperis in the

following courts:

Pima County Superior Court, Arizona Court of Appeals, Arizona Supreme Court,

United States District Court, Ninth Circuit Court of Appeals, Supreme Court of the United States.

{[ ] Respondent has not previously been granted leave to proceed in forma pauperis in

any other court. |

Respondent’s declaration in support of this motion is attached hereto.

Daie-P-Tiers

35 East University Boulevard

Tucson, Arizona 85705-7736

(S20) 623-4274

Attorney for Respondent

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AFFIDAVIT OR DECLARATION

IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

1, Joe Leonard Lambrightam the petitioner in the above-entitled case. In support of

my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay

the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of

the following sources during the past 12 months. Adjust any amount that was received

weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross

amounts, that is, amounts before any deductions for taxes or otherwise,

Income source Average monthly amount during Amount expected

the past 12 months next month

You Spouse You Spouse

Employment Be ee eae

Self-employment ee. — 0 $

Income from real property SE Rr ° $.

(such as rental income) -

interest and dividends Ban bi $ $ ’ te SS UaNTY.

Gifts ee $ aR, $

Alimony $ a 2 $

Child Support ee $ ¢$__ 9 $

Retirement (such as social $ 0 $ "a $

security, pensions,

annuities, insurance) -

Disability (such as social s ° $ es 5

security, insurance payments)

Unemployment payments $ , $ ..* $

Public-assistance eee $ $ : $

(such as welfare)

Other (specify): $ $ $ . $

Total monthly Income: §$ a eed, a £ $

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2. List your employment history for the past two years, most recent first. (Gross monthly pay

is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay

Employment

Not Applicable $

3. List your spouse’s employment history for the past two years, most recent employer first.

(Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay

Not Applicable Employment .

; _

4. How much cash do you and your spouse have? $__0

Below, state any money you or your spouse have in bank accounts or in any other financial

institution.

Financial institution Type of account Amount you have Amount your spouse has

Not Applicable $ $

$ $

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing

and ordinary household furnishings.

©) Home C Other real estate

Value Value

2 Motor Vehicle #1 © Motor Vehicle #2

Year, make & model : Year, make & mode!

Value Value

C) Other assets

Description

Value

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6. State every person, business, or organization owing you or your spouse money, and the

amount owed.

Person owing you or Amount owed to you Amount owed to your spouse

your spouse money

Not Applicable

: $ $

7. State the persons who rely on you or your spouse for support.

Name Relationship Age

Not Applicable

8. Estimate the average monthly expenses of you and your family. Show separately the amounts

paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or

annually to show the monthly rate.

Not Applicable

You Your spouse

Rent or home-mortgage payment 0

(include lot rented for mobile home) t $

Are real estate taxes included? Yes [CJNo

Is property insurance included? [Yes No

Utilities (electricity, heating fuel, 0

water, sewer, and telephone) $ ae 3

Home maintenance (repairs and upkeep) $ i nee” |

Food g . $

Clothing ioe $

Laundry and dry-cleaning $ ' $

Medical and dental expenses $ _ ERG Raa

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You Your spouse

Transportation (not including motor vehicle payments) $ 0 $

Recreation, entertainment, newspapers, magazines, etc. $ $

Insurance (not deducted from wages or included in mortgage payments)

Homeowner's or renter’s a ee $

Life $_0 $

Health i ne

Motor Vehicle ' § : $

Other: $ : é

Taxes (not deducted from wages or included in mortgage payments)

(specify): “Ei $

Installment payments

Motor Vehicle | $ . $

Credit card(s) s_S 3

Department store(s) . Peat ares?

Other: hic $

Alimony, maintenance, and support paid to others 3 G s

Regular expenses for operation of business, profession, 0

or farm (attach detailed statement) $ :

Other (specify): $ : $.

Total monthly expenses: x Y $

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9. Do you expect any major changes to your monthly income or expenses or in your assets or

liabilities during the next 12 months?

O Yes 43 No If yes, describe on an attached sheet.

10. Have you paid — or will you be paying — an attorney any money for services in connection

with this case, including the completion of this form? (Yes x4tNu

If yes, how much?

If yes, state the attorney’s name, address, and telephone number:

11. Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal! or

a typist) any money for services in connection with this case, including the completion of this

form?

O) Yes Xx No

If yes, how much?

If yes, state the person's name, address, and telephone number:

12. Provide any other information that will help explain why you cannot pay the costs of this case.

I have been incarcerated since 1981 and on death row

since 1982.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: I /24 20. Ol

(Signature) 7

TER PED ee OP

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No. 01-691

In the

Supreme Court of the United States

TERRY L. STEWART, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS,

Petitioner,

Vv.

JOE LEONARD LAMBRIGHT,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

For the Ninth Circuit

BRIEF IN OPPOSITION

DAVID P. TIERS

35 East University Boulevard

Tucson, Arizona 85705-7736

(520) 623-4274

Attorney for Respondent

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QUESTIONS PRESENTED

DID THE NINTH CIRCUIT ERR IN ITS DETERMINATION THAT AT THE

TIME OF PETITIONER'S DIRECT APPEAL, ARIZONA'S PROCEDURAL

DEFAULT RULE WAS NOT SUFFICIENTLY CLEAR TO CONSTITUTE AN

ADEQUATE GROUND TO PRECLUDE FEDERAL HABEAS REVIEW?

DID THE NINTH CIRCUIT ERR IN ITS DETERMINATION THAT THE

STATE COURT DID NOT RELY ON AN INDEPENDENT STATE GROUND

TO BAR FEDERAL HABEAS REVIEW?

rrr

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LIST OF PARTIES

ALL PARTIES APPEAR IN THE CAPTION OF THE CASE ON THE COVER PAGE

Sent By: David P. Tiers;

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

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INDEX TO APPENDICES

Lambright v. Stewart, 241 F.3d 1201 (9" Cir. 2001)

Lambright v. Lewis, 932 F.Supp. 1547 (D. Ariz. 1996) (No. CIV 87-

235-TUC-RMB)

Ninth Circuit Order in Lambright v. Stewart (No. 96-99020)

denying State’s Petition for Rehearing En Banc and Suggestion for

Rehearing En Banc, dated May 15, 2001.

State v. Lambright, No. CR 05669 (Pertinent portions of minute

entry denying state post conviction relief, April 17, 1985)

State v. Lambright, No. CR-05669 (Pertinent portions of minute

entry denying state post conviction relicf, March 14, 1986)

Rule 32.2, Arizona Rules of Criminal Procedure

Affidavit of Thomas G. Martin, November 12, 1995

iii

gee

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; TABLE OF CONTENTS

GA PERE I AI Se REE OEE ,

I a ee a a et OY ii

is ics ub dhaud oascubcahideesoardetcieLwa iii

ERR ge itt a RED CO SNRS > BENIN Lee RES v

IRC TI ELEN SORT POT SPE MR On SE l

RRA it aE as BR Dt oR RN LT eA ee RE I

I eg eat es Se ek 2 a a

CONSTITUTION AND STATUTORY PROVISIONS INVOLVED .............cecc0ee. 2

I gd i et ee 2

RAMONE POR CUVEE IIT oo sicccccecciccccccccsccccvcccoceccevess 4

I. THE COURT BELOW PROPERLY CONCLUDED THAT THE

PROCEDURAL BAR APPLIED BY THE STATE COURT WAS NOT A

REGULARLY ESTABLISHED OR CONSISTENTLY APPLIED RULE. ..... 4

A. At The Time Of Respondent’s Appeal No Arizona

Procedural Rule Required Ineffective Assistance Of

Counsel Claims To Be Raised On Direct Appeal. .................. 4

B. Appellate CounselDid Not Believe That Ineffective

Counsel Claims Had To Be Raised On Direct Appeal. ............... 7

©. Arizona’s General Procedural Default Rule Did Not

Require That Ineffective Assistance Of Counsel Claims Be

oi csav no's ku dn cha sew ekes ks kde cesaan 9

1. THE STATE COURT’S PROCEDURAL RULING DID NOT

PUMA PIAL REVIEW. occ ccc icccccccccrenscceccececess 1]

A. The State Court's Last Reasoned Opinion Rejected The

Incompetent Counsel Claim Because It Had Previously

Been Adjudicated On Direct Appeal. ..........2...cccceeccecece 11

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TABLE OF CONTENTS (Continued)

B. The State Court's Second To Last Reasoned Opinion Rejected The

Incompetent Counsel Claim Because It Was Meritless. ............. 15

oe oe bi 6 errr rrr rrr rrr rT rrr rrrrrrriiTirrirt rie rrr tiie ee 16

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TABLE OF AUTHORITIES

CASES

Carriger v. Lewis, 971 F.2d 329 (9 Cir. 1992en banc) ......... 202s eee eee ee eee eer eees 6

Levine v. Torvik, 986 F.2d 1506 (6" Cir.1993), cert denied, 509 U.S. 907 (1993) .........-- 14

Snase v. Carviger, ¥43 Asia. 142, 692 P.24991 (1904) .....--.eeesecceeeeeseereeeees 8, 10

State v. Watton, 164 Ariz. 323, 793 P.2d 80(1990) ....... uvetlesevdedueauceckmeane 15

Bargas v. Burns, 179 F.3d 1207 (9" Cir. 1999)... 2... eee cece cree cence eeeeeeeseees 1

Barr v. City of Columbia, 378 U.S. 146 (1964) .... 6... cece reece ener ne eeeerrereneees 4

Bennett v. Whitley, 41 F.3d 1581 (Sth Cir.1994) 0.0... cece eee reece reer eee ee reeees 13

Caldwell v. Mississippi, 472 U.S. 320 (1985) .....6 60. e cece eee e eee e renner eeees 12

Coleman v. Thompson, 501 U.S. 722 (1991) «0.66 eee ccc eee errr nent eeene ees 14-16

Ford v. Georgia, 498 U.S. 411 (1991)... 6... cece ccc recente e eee n ee neeeeeeeeeeees 5

Harris v. Reed. 489 U.S. 255 (1989) .... 0... - cece ccc cece eee teen tenet eeeeees 12-14, 16

James v, Kentucky, 466 U.S. 341 (1984) 2... 0.6 ccc cece eee erence eee eeeeneennes 4,5

Jenkins v. Nelson, 157 F.3d 485 (7 Cir. 1998), cert. denied, 527 U.S. 1039 (1999) ......... 16

Lambright v. Lewis, 932 F. Supp. 1547 (D. Ariz. 1996) .....-----0eeeee errr reer erences: |

Lambright v. Stewart, 191 F.3d 1181 (9% Cir. 1999)... 0... c cece cere eee e eee e eee ee cees 3

Lambright v. Stewart, 241 F.3d 1201 (9 Cir. 2001) ..-... 6-0 ese e creer eee ree ces Passim

NAACP vy. Alabama ex rel. Patterson, 357 U.S. 449 (1958) «0.2... 6c cece ere ener ence ees 5

State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982) ...... PRR ame 6, 8,9, 11

State v. Fisher, 152 Ariz. 116, 730 P.2d 825 (1986) ..... 2... . cece eee eee ee eee e renee 5,9

State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985)... 2.2.2 eee eee eee e ener renee 5,9

——————_—

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TABLE OF AUTHORITIES (Continued)

SUNTe Oe. EUG, TEE Aas, STO GI Ge FED IGE oo onc cee ncecivncesccsccetcdssccensess 14

Shate v. Nemes, 135 Aziz. 257, 660 P.2d GSE (1963) 0... cece cicccccccccsccccceces 5,9

State v. Schrock, 149 Ariz. 433, 719 P.2d 1049 (1986) 2.0.0... ccc cee cece eee eee eens 15

State v. Stone, 151 Ariz. 455, 728 P.2d 674 (App.1986) ...... 6. cece eee cece eect eees 5,9

State v. Thompson, 139 Ariz. 552, 679 P.2d S75 (App. 1984) 2.0... ee ccc eee eee ee 5,9

Grate e. Pen, BSD Aske. DF FIG Pee SEP IG 6 vccccvscccsnevcccscssccvescedscociss 10

State v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976), cert. denied, 430 U.S. 986 (1977) ....... 10

Sets 6 Teale, S95 Ae, FH GO ae PLETED v6 cin ve ve cedcenceennstesvesenesss 8,11

Strickland v. Washington, 466 U.S. 668 (1984)... 2.0... cc eee cece eee eee eee 14

Pees Sorel, TIS FDO TIS e e, CUGOD vic ccc vveccvsececctcnsavnsuucccess 15

eee SE, Te Chas FE COPED 6 a6 seve vnddeeedcccucesavavaseveeuxen 12-14, 16

CONSTITUTION, STATUTES AND RULES

es LED 6 SniSeeek ensvsccousben eed 0eeseeeterviedresusdheanseenetauaete l

ee Es 660.00 8 da ec Go bee 0 b-05sup ce debneh er aess behawhahetebat enekesenes 3

FE PN See v ev ccdcudcericesnbesdelsuccenqucscesecebesoionasensens 16

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BK re ey rT ry te ee er rrr rere 12

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IN THE

SUPREME COURT OF THE UNITED STATES

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

Respondent respectfully prays that Petitioner's Petition for Writ of Certiorari to review the

judgment below be denied.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals appears at Appendix A to the Brief in

Opposition and is reported at Lambright v. Stewart, 24) F.3d 1201 (9" Cir. 2001).

The Decision of the United States District Court of Arizona denying the Amended Petition

: appears at Appendix B to the Brief in Opposition and is reported at Lambright v. Lewis, 932 F. Supp.

1547 (D. Ariz. 1996).

JURISDICTION

The date on which the Ninth Circuit Court of Appeals decided the case was March 6, 2001.

A Petition for Rehearing and Suggestion for Rehearing En Banc filed by Petitioner was

denied by the Ninth Circuit Court of Appeals on May 15, 2001. A copy of the Order denying

rehearing appears at Appendix C to the Brief in Opposition.

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

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CONSTITUTION AND STATUTORY PROVISIONS INVOLVED

1. Bule 32.2(a) of the Arizona Rules of Criminal Proced

Rule 32.2. Preclusion of remedy

a. Preclusion. A petitioner will not be given relief under this rule based upon any

ground:

(A) Still raisable on direct appeal under Rule 31 or on post trial motion under rule

24;

(B) Finally adjudicated on the merits on appeal or in any other previous collateral

proceeding;

any previous collateral proceeding.

STATEMENT OF THE CASE

On March 30, 1982, a Pima County, Arizona jury found Respondent and his codefendant,

Robert Douglas Smith, guilty of the crimes of kidnaping, sexual assault and first degree murder.

(App. B). On May 27, 1982 the trial court sentenced Respondent to death on the murder conviction.

(Id.) Smith was also sentenced to death. On direct appeal the Arizona Supreme Court affirmed the

convictions and death sentences of both defendants. (Id.)

On October 24, 1984, Respondent filed his first Petition for Post-Conviction relief under

Rule 32 of the Arizona Rules of Criminal Procedure in state court, alleging inter alia, that he had

been denied his constitutional right to the effective assistance of counsel! at trial and sentencing..

BLD Dt: PLN Bee + «

(Id.) On Apri] 17, 1985, the trial court summarily denied Respondent’s petition. (App. D.)

Thereafter, Respondent filed a motion to rehear the trial court’s denial of the Rule 32 petition. The

Petition for Rehearing was denied on March 4, 1986. (App. E.) The trial court minute entry orders

denying the initial petition and the petition for rehearing later formed the basis for the District

Court’s determination of procedural bar and are at issue in this Petition. The Arizona Supreme Court

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denied review on July 9, 1986.

On April 14, 1987, Respondent filed a Petition for Writ of Habeas Corpus under 28 U.S.C.

§2254 in the United States District Court for the District of Arizona in Tucson, Arizona. (App. B.)

Because the Petition contained a number of unexhausted claims, the District Court dismissed the

Petition without prejudice, but retained jurisdiction and continuing the stay of execution. (Id.) With

new counsel, Respondent returned to state court with his second Rule 32 petition. The trial court

again summarily denied Respondent’s claims. The Arizona Supreme Court denied review on May

14, 1994.

Shortly thereafter, in preparation for the filing of an Amended Petition for Writ of Habeas

Corpus, Respondent sought authorization from the District Court for funds to develop Respondent's

ineffective assistance of counsel claims. Ina series of orders the District Court denied these requests

finding that Respondent's claim of ineffective assistance and been procedurally defaulted in state

court. (App. B.)

On February 23, 1995, Respondent filed his Amended Petition for Writ of Habeas Corpus

in District Court which included the claim of ineffective assistance of counsel raised in the first Rule

32 petition. In an Amended Memorandum Opinion and Order dated July 9, 1996, the District Court

denied the Amended Petition, finding Respondent’s ineffectiveness claim to have been waived and

procedurally defaulted in state, and therefore barred from federal review. (App. B.)

On Appeal to the Ninth Circuit, the court granted relief on one of Respondent’s trial claims

(dual jury issue), but thereafter granted Petitioner's Motion for Rehearing En Banc and reversed the

panel ruling. See, Lambright v. Stewart, 191 F.3d 1181 (9" Cir. 1999). The court then remanded

the case to the original panel for consideration of Respondent's remaining claims. Id.

In Lambright v. Stewart, 241 F.3d 1201 (9" Cir. 2001), the court addressed the merits of

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Respondent's ineffective of assistance of counsel claim. finding that at the time of Respondent's

direct appeal, Arizona’s procedural default rule was “so unclear that it did not provide the habeas

petitioner with a fair opportunity to seek relief in state court.” The court also found that even if the

state procedural rule had clearly existed, “the state court's order ... does not “clearly and expressly”

rest on an independent state ground so as to bar federal habeas review. The court found further that

Respondent was entitled to an evidentiary hearing because he has raised a colorable claim of

ineffective assistance of counsel and no state court had ever granted him an opportunity to develop

his claim. (App. A.)

Petitioner filed a timely Petition for Rehearing and Suggestion for Rehearing En Banc of the

decision in Lambright v. Stewart, and that Petition was denied by Order dated May 15, 2001. (App.

C.) On August 13, 2001 Petitioner filed a timely Petition for Writ of Certiorari in this Court. The

Petition was placed on the docket November 13, 2001.

‘+

REASONS FOR DENYING THE WRIT

Respondent respectfully requests this Court to deny the Writ for the following reasons.

THE COURT BELOW PROPERLY CONCLUDED THAT THE

PROCEDURAL BAR APPLIED BY THE STATE COURT WAS NOT A

REGULARLY ESTABLISHED OR CONSISTENTLY APPLIED RULE.

A. At The Time Of Respondent’s Appeal No Arizona Procedural

Rule Required Ineffective Assistance Of Counsel Claims To Be

Raised On Direct Appeal.

Before a procedural default can be found to bar the implementation of federal constitutional

rights, it must be shown that the procedural requirement was both “firmly established and regularly

followed.” James v. Kentucky, 466 U.S. 341, 348-49 (1984). See also Barry, City of Columbia. 378

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U.S. 146, 149 (1964) (state procedural rules “not strictly or regularly followed” may not bar our

review). “Novelty in procedural requirements cannot be permitted to thwart review ..-applied for by

those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal

constitutional rights." NAACP v. Alabama ex rel, Patterson, 357 U.S. 449, 457-458 (1958). Even

if the rule appeared “in retrospect to form part of a consistent pattern of procedures,” a state

procedural rule cannot be applied if the defendant could not be “deemed to have been apprised of

its existence.” Id., at 457.

Here, no rule “even remotely satisflies] the James requirement . . . that an adequate and

independent state procedural bar to the entertainment of constitutional claims [be] firmly established

and regularly followed” at the time it was to be applied. Ford v, Georgia, 498 U.S. 411, 424 (1991).

As the lower court properly found, at the time of petitioner's appeal, Arizona’s procedural law did

not require that ineffective assistance of counsel claims be raised on appeal. Lambright v, Stewart,

241 F.3d 1201, 1203 (9th Cir. 2001). In fact, and as recognized by the Ninth Circuit, no such rule

has ever existed in Arizona law. Before and after 1983 (when Respondent’s direct appeal was

decided), competency claims against trial counsel were routinely raised for the first time in state

postconviction proceedings, and no findings of waiver or preclusion were made. State v. Nunez, 135

Ariz. 257, 660 P.2d 858 (1983); State v. Thompson, 139 Ariz. 552, 679 P.2d 575 (App. 1984); State

v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985); State v, Stone, 151 Ariz. 455, 728 P.2d 674

(App.1986); State v. Fisher, 152 Ariz. 116, 730 P.2d 825 (1986).'

‘These cases disprove Petitioner's claim that it “was the regular practice ... to raise

ineffective counsel claims on direct appeal...” Petition, p. 15 n.4. While claims of ineffective

assistance of counsel were, from time to time raised on direct appeal, in many other cases they

were not. Moreover, a “regular practice” may not be a “firmly established and regularly

followed” rule at the time of petitioner's purported default requiring ineffectiveness claims to be

raised on direct appeal. Ford v, Georgia, 498 U.S. at 423-424.

ee eR SCE ae PRN ENR Fee Perens, SLE 2 ON MO ANS 2 SE RE EN RE es

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Nor did the lower court, as Petitioner contends, contradict or implicitly reject Carriger v.

Lewis, 971 F.2d 329 (9 Cir. 1992)(en banc). As the lower court noted, its holding in Carriger did

not control the decision in this case. Carriger was argued and decided on different grounds.

We werc not, however, faced with the same challenge we confronted here: that the

paraticular procedural default rule the state court relied on was insufficiently clear,

in light of the rule prohibiting claims that relied on evidence outside the record from

being raised on appeal, to bar federal review.

Lambright v. Stewart, 241 F.3d at 1204 n. 3.

Moreover, and as explained more fully below, that case addressed an entirely different aspect

of Arizona’s procedural default rule: whether additional aspects of a claim raised in state

postconviction proceedings that had previously been raised on direct appeal were subject to

procedural] default. Cariger v, Lewis, 971 F.2d at 333. Here, unlike Carriger, no claim of

ineffective assistance of counsel was raised on direct appeal. Rather, all ineffectiveness claims were

raised for the first time in state postconviction proceedings. Lambright v. Stewart. 241 F.3d at 1203.

In addition, and as also set forth more fully below, Carriger rejected state claims that ineffective

assistance of counsel at sentencing claims, raised for the first time in state postconviction

proceedings, were procedurally defaulted, even though ineffective trial counsel claims had been

raised on direct appeal. State v. Carriger, 132 Ariz. 301, 304, 645 P.2d 816, 819 (1982). The lower

court’s decision does not contradict Carriger v. Lewis, or any other circuit court decision.

Because Petitioner can no cite no case to clearly establish the purported procedural rule

requiring ineffective assistance of counsel claims to be raised on direct appeal, it is forced to argue

that this Court should grant certiorari and reverse the lower court because |) Respondent’s appellate

counsel had “actual notice” that he was required to raise ineffective claims on appeal, and 2) that

Arizona had a general procedural rule subjecting all claims, of every type and kind, that were

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“[k]nowingly, voluntarily and intelligently not raised ... on appeal” to a finding of waiver.

Ariz.R.Crim.P. 32.2(a). These propositions are belied by the facts.

B. Appellate Counsel Did Not Believe That Ineffective Counsel

Claims Had To Be Raised On Direct Appeal.

Petitioner’s contention that Respondent's appellate counsel had “actual knowledge” that he

was required to raise his ineffectiveness claims on direct appeal, but simply “chose not to” raise

them, fatally misrepresents the contents of the affidavit at issue. Petition, p.5.n2. In fact, appellate

counsel said ‘ust the opposite:

ae the time of my sepeeecenenen | in this case oa em penne pe

and precluded from later review in

state or federal court.

App. G (emphasis added).

The language Petitioner relies on from counsel's affidavit to argue otherwise addresses an

entirely different point: that had counsel known he was required to raise ineffective claims on direct

appeal and “had” he “reviewed” the record in search of such claims, he would have raised counsel’s

ineffectiveness at trial and sentencing. Id. That statement does not evince counsel’s knowledge that

a rule required such claims be raised on appeal. As counsel previously unequivocally stated, he “was

not aware of any” such rule. That is not surprising, since as the court below properly found, no such

rule existed. Lambright v, Stewart, 241 F.3d at 1203.

Petitioner next relies on the District Court’s conclusion that counsel's affidavit “indicates that

Lambright’s appellate counsel knew that ineffectiveness could be raised on direct appeal.” Petition,

p. 5 (emphasis in original). At most, this excerpt suggests that appellate counsel may have been

aware that a claim of ineffective assistance of counsel, based on the trial court record, could have

been raised on direct appeal. Such awareness is entirely consistent with the belief that no state

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procedural rule required such a claim to be raised. Appellate counsel unambiguously stated in his

affidavit that “he was not aware of any Arizona state procedural rule requiring that a claim of

ineffective assistance of trial counsel must be raised on direct appeal...” (App. G. ) Additionally,

and as noted by the court below, Arizona law has always been clear that review on direct appeal is

limited to matters appearing in the trial court record. [d., 241 F.3d at 1204. Because of this

limitation, had Respondent chosen to raise his extra-record ineffectiveness claims on direct appeal,

he would have been denied an adequate forum in which to raise his claims. As noted in State v.

Zuck, 134 Ariz. 509, 658 P.2d 162, 168 (1982),

“[W)here the issue of competency of trial counsel has been raised, we have always

resolved the matter with whatever was before us in the record and without giving trial

counsel an opportunity to be heard.”

Moreover, and as also explained above, had counsel decided to raise record-based ineffective trial

counsel claims on appeal, any ineffective trial counsel claims discovered in later state postconviction

proceedings based on outside record investigation, could be found waived. See State v. Carriger,

143 Ariz. 142, 147, 692 P.2d 991, 996 (1984)(where defendant “intentionally sought substitute

appellate counsel in order to raise claims of ineffective assistance of counsel,” and did raise such

claims on appeal, defendant found to have knowingly, voluntarily and intelligently waived later

ineffective counsel claims discovered in state postconviction proceedings).’

*Petitioner misrepresents the lesson of State v. Carriger. supra. See Petition, pp. 14-15.

Carriger did not announce or confirm a rule requiring ineffective counsel claims be raised on

direct appeal. All Carriger stands for is the unremarkable proposition that if a defendant makes a

deliberate decision to raise claims of ineffective counsel on appeal-which it concluded the

defendant in Carriger did based on the defendant’s specific statements and conduct--other

instances of trial counsel’s ineffectiveness, even those based on outside record investigation, are

subject to a finding that they were knowingly, voluntarily and intelligently waived. State v,

Carriger, 143 Ariz. at 147, 692 P.2d at 996. Carriger also makes clear, however, that such a

finding of waiver does not reach claims of ineffective sentencing counsel not raised on direct

appeal. Id.; State v. Carriger, 132 Ariz. at 304, 645 P.2d at 819.

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However, even in that stark setting, where counsel chose to raise a record based ineffective

assistance of counsel at trial claim on direct appeal, Arizona law nevertheless permitted the

defendant to raise ineffective assistance of counsel at sentencing claims in later state postconviction

proceedings. State v. Carriger, 132 Ariz. 301, 304, 645 P.2d 816, 819 (1982)(finding counsel at

sentencing to have been ineffective and remanding for a new sentencing hearing, noting that

defendant's prior appeal did not raise “inadequate representation at the sentencing,” and rejecting

state’s arguments of procedural bar). Even if this Court were to accept Petitioner’s argument that

ineffective trial counsel claims were required to be raised on direct appeal, Casriger clearly

established that ineffective sentencing counsel claims could be raised for the first time ina later state

postconviction proceeding. Id.

C. Arizona's General Procedural Default Rule Did Not Require

ay ne pene eee

Petitioner’s second attempt to establish a procedural default where none exists, is to argue

that Arizona's general procedural default rule was clearly established by Ariz.R.Crim.P. 32. That

attempt fails as well.

Arizona's general procedural default rule in existence at the time of Respondent's direct

appeal, did not require that ineffective counsel claims be raised on direct appeal. It stated only, that

"any ground” "[k]nowingly, voluntarily and intelligently not raised at trial, on appeal, or in any

previous collateral proceeding” was subject to a finding of waiver. Ariz.R.Crim.P. 32.2(aX3). As

set forth above, ineffective assistance of counsel claims, based on both the trial court record and

outside record facts, were not subject to this general waiver rule when raised for the first time in

postconviction proceedings. See, c.g. State v. Nunez, supra; State v. Thompson, supra; State v.

Gerlaugh, supra; State v. Stone, supra; State v, Fisher. supra, That is not surprising, since review

LL LLL LLL LL

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on direct appeal was limited strictly to matters appearing in the trial court record and, as the lower

court and Arizona courts recognize, most successful ineffective counsel claims require an

investigation of facts not contained in the appellate record. Lambright v. Stewart, 241 F.3d at 1204;

State v. Watson, 114 Ariz. 1, 14-15, 559 P.2d 121, 134-135 (1976), cert. denied, 430 U.S. 986

(1977)(record-based ineffective counsel at trial claim raised on appeal denied, but hearing needed

to resolve extra-record allegations of ineffective counsel raised in postconviction proceedings

brought under Ariz.R.Crim.P. 32). Additionally, because a record based claim of ineffective trial

counsel raised on appeal subjected other allegations supporting that claim based on outside record

facts to a finding of procedural default, State v. Carriger, 143 Ariz. at 147, 692 P.2d at 996, prudent

counsel would not raise any part of an ineffectiveness claim on direct appeal.

Petitioner’s claim that the purported requirement to raise all claims on direct appeal was “not

obviated” by the “possibility” that a claim of ineffective assistance might involve matters outside the

trial court record, because an appeal could be stayed pending the resolution of a Rule 32 petition,

implicitly acknowledges the inconsistency of its own position. Arizona Rule of Criminal Procedure

31.4, did provide that an appellate court could stay an appeal, “while a ... petition under Rule 32 is

pending.” However, as the lower court fully recognized and as petitioner now tacitly concedes, a

postconviction proceeding under Rule 32, rather that a direct appeal, was always the proper forum

in which to raise ineffectiveness claims. Lambright v. Stewart, 241 F.3d at 1204. Whatever

ambiguity may have existed in the past regarding the appropriate forum in which to raise ineffective

assistance of counsel claims was resolved fully by the Arizona Supreme Court in 1989. “If the

defendant wishes to raise an ineffective assistance of counsel issue, he should ordinarily begin

someplace other than this court.” State v. Valdez, 160 Ariz. 9, 770 P.2d 313, 318 (1989).

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Nor did the lower court, as Petitioner contends, find that a state rule is not adequate, “unless

expressed in a judicial decision applying it to a similar issue.” After rejecting the state’s continued

reliance on State y, Zuck, as support for the contention that such a rule existed, the lower court

specifically examined and rejected Petitioner's alternative reliance on Rule 32.2's general procedural

default rule. Having fully considered both judicial decisions and Arizona’s procedural default rule,

there is no conflict with the Ninth Circuit’s own decision in Bargas v. Burns, 179 F.3d 1207, 1212

(9" Cir. 1999). Bargas held quite simply, that “where a state procedural rule is sufficiently clear to

put a petitioner on notice that he must raise all claims or risk default, the petitioner must raise all

claims.” (emphasis added.) Arizona's procedural rule was not sufficiently clear, either from judicial

decision or black letter law.

As explained above, Arizona's general procedural default rule did not prohibit ineffective

assistance of counsel at sentencing claims raised for the first time in state postconviction

proceedings, even when ineffective trial counsel claims were raised and decided on direct appeal.

See State v. Carriger, 132 Ariz. at 304, 645 P.2d at 819. The review of judicial decisions and

Arizona’s general procedural default rule clearly demonstrate that the lower court ruling does not

conflict in any way with any of this Court’s decisions or decisions of other circuit courts.

II.

THE STATE COURT'S PROCEDURAL RULING DID NOT FORECLOSE

FEDERAL REVIEW.

Alternatively, the lower court concluded that even if a procedural default rule clearly existed

that required ineffective counsel claims be raised on direct appeal, the state court's order “does not

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‘clearly and expressly’ rest on such a rule.” Lambright v. Stewart, 241 F.3d at 1205. In reaching this

conclusion, the circuit court did not stray from this Court's settled case law.

The federal court looks to the “last reasoned opinion on the claim" tv determine whether a

state procedural ruling bars federal review. Yist v. Nunnemaker, 501 U.S. 797, 804 (1991). The last

explained state court judgment must “clearly and expressly’” rely on an adequate state procedural

bar before federal review can be denied. Harris v, Reed, 489 U.S. 255, 263 (1989) quoting Caldwell

vy, Mississippi, 472 U.S. 320, 327 (1985)).

The circuit court below properly applied these principles. Lambrighi v, Stewart, 241 F.3d

at 1205. Because the Arizona Supreme Court order denying the petition for review from the trial

court's order denying postconviction relief was silent, the circuit court looked at the last reasoned

opinion of the state trial court. Jd. As all agree, see Petition, p. 17, that opinion was the trial court’s

order denying Respondent's motion for reconsideration. What the state trial court said about the

incompetent counsel claim was this:

Ineffective assistance of counsel.

Paragraph a--this issue existed factually prior to appeal; the Arizona Supreme Count

looked at the entire sentencing process exhaustively, testing it for error of

constitutional dimensions and found none. There is therefore the suggestion, and

strong inference, that this claim is precluded under Rule 32.2(a)(2); however, it [sic]

not, the Court finds that since it clearly could have been raised on direct appeal, that

it has been knowingly, voluntarily and intelligently waived by failure to raise it, end

is therefore precluded pursuant to Rule 32(a)(c) and (c).

Id, The state court's first ruling then rests on its finding that a “strong inference” demonstrates that

the claim of ineffective sentencing counsel was decided and rejected on direct appeal by the Arizona

Supreme Court when it “looked at the entire sentencing process exhaustively.” Based on this

finding, the state court found this claim “therefore” “precluded” under Ariz.R.Crim.P. 32.2(a){2).

Id. Ariz.R.Crim.P. 32.2(a)(2) bars from further state court review claims that were already “[flinally

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adjudicated on the merits on appeal or in any previous collateral proceeding.” Ariz.R.Crim.P.

32.2(a(2).

The state trial court's determination that the incompetent counsel claim had already been

adjudicated on direct appeal, and was thus res judicata, however, is not an independent and adequate

state law ground barring federal review. As this Court previously explained, the “effect of such state

court rules “on the availability of federal habeas is nil..." Yist v. Nunnemaker, 501 U.S. 797, 804

n.3 (1991). That is because a state court rule “preventing the relitigation on state habeas of claims

raised on direct appeal” is “not a procedural bar in the traditional sense.” Bennett v. Whitley, 41

F.3d 1581, 1583 (Sth Cir.1994). All such & rule decides is that the state court will not reconsider the

same claim previously considered and rejected in an earlier state appeal.

After finding this strong inference that the ineffective counsel claim had been previously

adjudicated and denied on the merits (a finding that does not bar federal review), the state court

made a second finding: that if the claim were not reviewed on direct appeal as it strongly inferred

it was, it would be waived under Ariz.R.Crim.P. “32(a)(c) and (c).” Assuming the state court meant

to refer to Ariz.R.Crim.P. 32.2(a)(3), that rule bars claims from state court review that could have

been raised earlier but were knowingly, voluntarily and intelligently waived.

As the lower court correctly found, these two simultaneous conclusions are “mixed and

inconsistent.” Lambright v. Stewart, 241 F.3d at 1206. They are, at best, ambiguous, and do not

“clearly and expressly” invoke a procedural bar to federal review. Harris v. Reed, 489 U.S. at 263.

Petitioner first complains that the lower court’s holding misapplies Harris v, Reed, 489 U.S.

255, 263 (1989), because the state court ruling “certainly” does not rest on federal law. Petition, p.

18. Petitioner is wrong. The state court’s ruling that sentencing counsel’s ineffectiveness was

“exhaustively” considered and rejected by the Arizona Supreme Court “for error of constitutional

§ent By: David P. Tiers; 520 792 9441;

dimensions” does indeed fairly appear to invoke federal law. Arizonareviews claims of incompetent

counsel under the Sixth Amendment. See e.g., State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157

(1984) (adopting Strickland v. Washington, 466 U.S. 668 (1984) test for reviewing ineffective

counsel claims under sixth amendment). Because the trial court found that the claim had already

been reviewed and rejected on the merits, the claim could not be adjudicated again. That ruling does

not bar federal review. Yist v. Nunnemaker, 501 U.S. at 804 n.3.

Contrary to Petitioner’s argument, the state court’s ruling, thus, is entirely unlike that in

Coleman v, Thompson, 501 U.S. 722 (1991), where the state supreme court “stated plainly” that it

was granting the state’s motion to dismiss “based solely on Coleman's failure to meet the Supreme

Court's time requirements.” [d., at 740. Here, the state court denied Respondent’s incompetent

counsel claim because it had previously been “exhaustively” reviewed and rejected on direct appeal.

The state court rule barring relitigation of claims considered on direct appeal does not prevent federal

review. Yist v. Nunnemaker, 501 U.S. at 804 n.3.

As we have also shown, the circuit court decision also does not misapply Harris. The state

court ruling plainly stated its strong inference that the incompetent counsel claim had already been

adjudicated on the merits on direct appeal during the state supreme court's “exhaustive(]” review.

It then went on to note that if that were not so, then the claim would be barred from review because

it was knowingly, voluntarily and intelligently not raised on direct appeal.

Given the strong inference that this claim had already been considered and rejected on the

merits, and absent a clear statement that the claim is barred because it was not raised in the direct

appeal, federal review is not barred. See Levine v, Torvik, 986 F.2d 1506, 1517 (6" Cir.1993), cert

denied, 509 U.S. 907 (1993) federal review not barred where state court found that “the defendant

has waived these claims since he failed to raise them with the trial court. ... Furthermore, this court

Jan-2-02 11:22AM; Page 29/32

an eS ncnneecmmmcummrartmmmcumececammuatatatitacteceamman eae i tense een

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in substance addressed and overruled these claims in the defendant's prior appeal....”). The state trial

court’s language that a strong inference existed that this claim had previously been considered and

rejected on the merits is not an "independent state ground” precluding federal review. But even

assuming ambiguity in the state trial court’s ruling, such ambiguity is insufficient to preclude review

of this claim. Coleman v. Thompson, 501 U.S. at 735. See also, Tankleff v. Senkowski, 135 F.3d

235, 247 (2™ Cir. 1998)(state trial court ruling that the defendant's contentions are “either meritless

or unpreserved" is not a clear and express statement that the judgment rests on procedural bar

precluding federal review).

B. ’s d

Realizing the consequences of the state court’s last reasoned opinion finding the incompetent

counsel claim had previously been adjudicated and rejected on direct appeal, Petitioner changes

positions and argues that the court below should have considered the state trial court's second to last

reasoned order denying relief on the incompetent counsel claim. Petition, p. 21. Of course, that is

not what Yist requires. But even a review of that order does not help Petitioner.

In the first order denying relief on this claim, the trial court clearly rejected the claim on the

merits. After discussing the allegations of the claim, it found it “[t}he ineffective claim is not a

colorable claim.” (App D.) Under Arizona law, a claim is colorable if assuming “defendant's

allegations are true,” they “might have changed the outcome.” State v. Watton, 164 Ariz. 323, 328,

793 P.2d 80, 85 (1990) (citing State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986)).

See also Ariz.Crim.P, Rule 32.6. That, of course, is a clear and express ruling on the menits.

The state court's later passing mention of a procedural default based on the failure of

appellate counsel to raise the claim on direct appeal does not change its earlier ruling expressly

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rejecting the claim on the merits. The procedural ruling is plainly an alternative one that does not

preclude federal review. See Jenkins v, Nelson, 157 F.3d 485, 491 (7 Cir. 1998), cert, denied, 527

U.S. 1039 (1999)(no procedural default occurs if the state court's alternative finding constituted a

finding on the merits.); where it is unclear if the state court dismissed the petition because of a state

law procedural default or on the merits of the petitioner's federal constitutional claims, federal review

of a claim is not precluded). Here, the alternative finding was plainly an afterthought. The state

court’s decision “rested primarily on resolution” of the incompetency claim. Coleman v. Thompson.

$01 U.S. at 735.

But of course it is to the state court’s last reasoned opinion to which the federal courts must

look, as the court below did here. That opinion rejected the state court’s earlier mention of

procedural default for failing to raise the claim on direct appeal. It found instead a strong inference

that the claim had in fact been considered and rejected on the merits by the state appellate court in

the direct appeal. It is that court’s final word on which the circuit court below reasonably and rightly

relied, following the mandates of Harris, Ylst and Coleman.

CONCLUSION

For all these reason, certiorari must be denied. Nothing about the panel's analysis is either

incorrect or exceptional, and nothing contravenes this Court’s decisions or that of other circuit

courts. The panel’s conclusion remanding this case for an evidentiary hearing applied settled

principles to the facts here and was correct. Certiorari should be denied. See U.S.S.Ct.R. 10.

RESPECTFULLY Submitted this / Day of December, 2001.

DAVID. P. TIERS, Esq.

Attorney for Respondent

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Sent By: David P. Tiers; ' 520 792 9441; .

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of December, 2001, I caused the

Respondent JOE LEONARD LAMBRIGHT’s Brief in Opposition to be served by causing

one copy of the brief to be mailed, postage pre-paid, to Bruce Ferg, Assistant Arizona

Attorney General, 400 West Congress Street, Suite S-315, Tucson, Arizona, 85701,

counsel for the petitioner.

DAVID P. TIERS

Attorney for Respondent

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