Amicus Curiae Brief — Stewart v. Wallace

No. 99 - 689

“timp —_ ——— -

b

‘4

;

+

>

Pf

=

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

TERRY L. STEWART, Director, Arizona Department of Corrections,

Petitioner,

V.

JAMES GRANVIL WALLACE, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATES OF CALIFORNIA,

ALABAMA, DELAWARE, GEORGIA, KANSAS, MISSOURI,

MONTANA, NEBRASKA, NEVADA, OKLAHOMA, OREGON,

PENNSYLVANIA, TENNESSEE, UTAH, AND WASHINGTON

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

RONALD A. BASS

Senior Assistant Attorney General

PEGGY S. RUFFRA

Supervising Deputy Attorney General

DANE R. GILLETTE

Senior Assistant Attorney General

Counsel of Record

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

Telephone: (415) 703-5866

Fax: (415) 703-5877

Counsel for Amici Curiae

[Additional Counsel Listed On Inside Page}

BILL PRYOR

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

M. JANE BRADY

Attorney General of Delaware

Chief of Appeals Division

820 N. French Street

Wilmington, Delaware 19801

THURBERT E. BAKER

Attorney General

State of Georgia

40 Capitol Saquare, SW

Atlanta, Georgia 30334

CARLA J. STOVALL

Attorney General

301 S.W. 10" Avenue

Topeka, Kansas 66612

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

Supreme Court Building

207 West High Street

Jefferson City, Missouri 65101

JOSEPH P. MAZUREK

Attorney General

State of Montana

Justice Building

P.O. Box 201401

Helena, Montana 59620

DON STENBERG

Nebraska Attorney General

Department of Justice

2115 State Capitol

Lincoln, Nebraska 68509

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

100 N. Carson Street

Carson City, Nevada 89701

HARDY MYERS

Attorney General

State of Oregon

1162 Court Street N.E.

Salem, Oregon 97310

W.A. DREW EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Blvd., Ste. 112

Oklahoma City, OK 73105

D. MICHAEL FISHER

Attorney General

Commonwealth of

Pennsylvania

16" Floor, Strawberry Square

Harrisburg, PA 17120

PAUL G. SUMMERS

Attorney General and Recorder

Cordell Hull Building

Nashville, TN 37243

JAN GRAHAM

Utah Attorney General

236 State Capitol

Salt Lake City, UT 84114

CHRISTINE O. GREGOIRE

Attorney General of Wasington

1125 Washington Street

P. O. Box 40100

Olympia, WA 98504

(CAPITAL CASE)

QUESTION PRESENTED

Did the Ninth Circuit err in holding, contrary to

Strickland, Teague, and decisions by other circuit courts of

appeal, that claims of ineffective assistance of counsel in the

guilt and sentencing phases of a capital case are subject to

different standards of review and that defense counsel had a

duty in a capital sentencing proceeding to investigate and

provide facts to the examining mental health experts that those

experts did not request?

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE l

REASONS FOR GRANTING THE WRIT 2

A. Ineffective Assistance of Counsel Claims Are

Governed By The Same Standard In All Phases of

a Capital Trial 3

B. Trial Counsel Is Not Obligated To Investigate For

Or Present Information To An Expert Witness

Unless Requested To Do So By The Expert 5

C. The Discovery Of Additional Potential Mitigating

Evidence In Posttrial Proceedings Does Not

Establish Ineffective Assistance Of Counsel 7

CONCLUSION 1]

ili

TABLE OF AUTHORITIES

Page

Cases

Coe v. Bell

161 F.3d 320 (6" Cir. 1998) 7

Ake v. Oklahoma

470 U.S. 68 (1985) 7

Barefoot v. Estelle

463 U.S. 880 (1983) 9

Bloom v. Calderon

132 F.3d 1267 (9" Cir. 1997) 6

Brecht v. Abrahamson

507 U.S. 619 (1993) )

Brewer v. Reynolds

51 F.3d 1519 (10" Cir. 1995) 9

Burger v. Kemp

483 U.S. 776 (1987) 5

Burris v. Parke

116 F.3d 256 (7" Cir. 1997) 8

Cain v. Peters

972 F.2d 748 (7" Cir. 1993) 10

Calderon v. Thompson

118 S.Ct. 1489 (1998) 1,9

iV

TABLE OF AUTHORITIES, CONT'D

Card v. Dugger

911 F.2d 1494 (11" Cir. 1990) 6

Caro v. Calderon

165 F.3d 1223 (9" Cir.)

cert. denied 119 S.Ct. 2414 (1999) 4,5

Caspari v. Bohlen

510 U.S. 383 (1994) 3

Collier v. Turpin

177 F.3d 1184 (11" Cir. 1999) 4

Dobbs v. Zant

506 U.S. 357 (1993) 9

Flamer v. State of Delaware

68 F.3d 710 (3d Cir. 1995) 4

Groseclose v. Bell

130 F.3d 1161 (6" Cir. 1997) 4

Harris v. Vasquez

949 F.2d 1497 (9" Cir. 1990) 7

Hendricks v. Calderon

70 F.3d 1032 (9" Cir. 1995) 4,6

Herrera vy. Collins

506 U.S. 390 (1993) 8

Hill v. Moore

175 F.3d 915 (11" Cir. 1999) 6

TABLE OF AUTHORITIES, CONT'D

Lambrix v. Singletary

520 U.S. 518 (1997)

Lockhart v. Fretwell

506 U.S. 364 (1993)

Medina v. California

505 U.S. 437 (1992)

Nix v. Whiteside

475 U.S. 157 (1986)

O'Dell v. Netherland

521 U.S. 151 (1997)

Resnover v. Pearson

965 F.2d 1453 (7" Cir. 1992)

Smith v. Stewart

189 F.3d 1004 (9" Cir. 1999)

Strickland v. Washington

466 U.S. 668 (1984)

Strickland v. Washington

466 U.S. 668 (1984)

Tarver v. Hopper

169 F.3d 710 (11" Cir. 1999)

Teague v. Lane

489 U.S. 288 (1989)

vi

TABLE OF AUTHORITIES, CONT'D

Thomas v. Gilmore

144 F.3d 513 (7" Cir. 1998) 7

Thomas v. Taylor

170 F.3d 466 (4" Cir. 1999) 7

Wainwright v. Sykes

433 U.S. 72 (1977) 9

Wallace v. Stewart 7

184 F.3d 1112 (9" Cir. 1999) 3-5

Walls v. Bowersox

151 F.3d 827 (8" Cir. 1998) 6

White v. Singletary

972 F.2d 1218 (11" Cir. 1992) 7

Wilson v. Greene

155 F.3d 396 (4" Cir. 1998) 6

Other Authorities

Goodpaster, The Trial For Life: Effective Assistance of

Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299

(1983) 3

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

No. 99 - 689

TERRY L. STEWART, Director, Arizona Department of Corrections,

Petitioner,

V.

JAMES GRANVIL WALLACE, Respondent.

INTEREST OF AMICI CURIAE

The amici states are responsible for defending

presumptively valid death penalty judgments against federal

habeas corpus challenges. They have a compelling interest in

the finality of such judgments and in ensuring that the limited

role of federal courts when reviewing collateral claims be

respected. The well-established requirement of restraint on

habeas review is particularly important when considering

allegations of ineffective assistance of trial counsel. The

opinion of the Ninth Circuit Court of Appeals in this case

completely ignores the "significant limits on the discretion of

federal courts to grant habeas relief" imposed by this Court.

Calderon v. Thompson, 118 S.Ct. 1489, 1500 (1998). Indeed,

the circuit court has imposed broad new mandatory duties on

defense counsel, which are both inconsistent with the standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984), and

overlook the "rule of contemporary assessment of counsel’s

conduct" mandated by this Court. Lockhart v. Fretwell, 506

U.S. 364, 372 (1993). Specifically, the circuit court concluded

in direct contradiction of Strickland that claims of ineffective

assistance by trial counsel in the sentencing phase of a capital

case should be considered under different standards from those

applicable to the guilt phase or any noncapital trial. The

requirements mandated by the circuit court violate the

prohibition against creating new rules on collateral review,

Teague v. Lane, 489 U.S. 288 (1989), and undermine the

finality of innumerable death judgments. Amici urge the Court

to grant certiorari in order to review these issues.!

REASONS FOR GRANTING THE WRIT

The Sixth Amendment right to counsel in criminal cases

"is the right to effective assistance of counsel." McMann vy.

Richardson, 397 U.S. 759, 771, n. 14 (1970). "The touchstone

of an ineffective-assistance claim is the fairness of the

adversary proceeding... ." Fretwell, 506 U.S. at 370. Thus,

a state prisoner challenging trial counsel’s action must prove

both that his attorney’s performance was deficient and that

counsel’s actions were prejudicial. Strickland, 466 U.S. at 687.

"Judicial scrutiny of counsel’s performance must be highly

deferential," id. at 689, and must ultimately focus on whether

the result of the trial was unreliable or the proceeding was

fundamentally unfair. Fretwell, at 372.

The Ninth Circuit opinion in this case acknowledges none

of the restraints imposed by this Court on federal court

collateral review of presumptively final state judgments and all

but ignores this Court’s decisions on ineffective assistance of

1. Arizona also seeks certiorari on the Ninth Circuit’s grant of an

evidentiary hearing based on evidence presented by Wallace for the first

time in federal court. Amici agree that the opinion below conflicts with

other circuits and endorse the arguments presented by Arizona in the

Petition For Writ of Certiorari.

iiss atari

ae

counsel. The Ninth Circuit reversed this capital judgment by

concluding: (1) that ineffective assistance claims relating to the

sentencing phase of a capital case should be judged by different

standards from those applicable to guilt phase representation;

(2) that trial counsel has a duty to obtain and present to expert

witnesses information that might assist their evaluation even if

not requested to do so by the expert; and (3) that the discovery

of any additional mitigation after trial is sufficient to establish

ineffective assistance based on trial counsel’s failure to uncover

and present it. Wallace v. Stewart, 184 F.3d 1112 (9" Cir.

1999). The Ninth Circuit’s holdings defy the decisions of this

Court and constitute new rules within the meaning of Teague.

A. Ineffective Assistance of Counsel Claims Are Governed

By The Same Standard In All Phases of a Capital Trial

Prior to this Court’s decision in Strickland, there was some

suggestion that claims of ineffective assistance of counsel in the

sentencing phase of a capital case should be judged under more

rigorous standards than those applicable to review of noncapital

cases or even to the guilt phase of a capital case. See

Goodpaster, The Trial For Life: Effective Assistance of Counsel

in Death Penalty Cases, 58 N.Y.U.L.Rev. 299 (1983). The

Court-firmly rejected that suggestion: "A capital sentencing

proceeding . . . is sufficiently like a trial in its adversarial

format and in the existence of standards for decision [citations

omitted] that counsel’s role in the proceedings is comparable to

counsel’s role at trial—to ensure that the adversarial testing

process works to produce a just result under the standards

governing decision." 466 U.S. at 686-687.? Since Strickland

2. Indeed, the Court left open the question of whether it might apply a

different, presumably less rigorous test, to claims of ineffective assistance

in "ordinary sentencing" proceedings. 466 U.S. at 686; see Caspari v.

Bohlen, 510 U.S. 383, 393 (1994).

4

the few courts to comment have recognized that the "standards

for determining whether counsel has been ineffective in a

capital sentencing proceeding are identical to the standards for

the guilt phase of the trial." Flamer v. State of Delaware, 68

F.3d 710, 732 (3d Cir. 1995); see also Callier v. Turpin, 177

F.3d 1184, 1198 (11" Cir. 1999) (the two-part test of Strickland

"applies to claims of ineffective assistance during the

sentencing phase as well as the guilt phase of the trial");

Groseclose v. Bell, 130 F.3d 1161, 1167 (6" Cir. 1997)

(quoting Strickland language).

Ignoring this Court’s express holding, the Ninth Circuit

adopted its own approach to evaluating challenges to counsel’s

representation during capital sentencing proceedings. It held

that while trial counsel was not obligated to investigate and

bring to the attention of mental health experts information

about the defendant’s background unless requested to do so by

an expert during guilt phase preparation, such a duty did apply

at the sentencing phase of a capital case. Wallace v. Stewart,

184 F.3d at 1116. In short, the Ninth Circuit held that trial

counsel’s duty of investigation in the guilt phase is different

from the duty to investigate in the penalty phase of a capital

case. The sole authority cited to support such disparate

requirements was two prior opinions of the Ninth Circuit. See,

Hendricks v. Calderon, 70 F.3d 1032 (9" Cir. 1995); Caro v.

Calderon, 165 F.3d 1223 (9" Cir.), cert. denied 119 S.Ct. 2414

(1999)? Because the "relevant precedent" from this Court,

O'Dell v. Netherland, 521 U.S. 151, 160 (1997), did not

compel the rule adopted by the Ninth Circuit—indeed, such

3. Although Caro did, improperly, draw a distinction between the

duties of trial counsel in the guilt and penalty phases of a capital trial,

Hendricks cannot reasonably be read to support such a rule. Amici

recognize that a circuit court’s misapplication of its own precedent does not

justify review by this Court. We make this point simply to demonstrate the

utter lack of support for the Ninth Circuit’s rule.

precedent affirmatively precluded the circuit court’s

conclusion—the rule stated violates the retroactivity principle

of Teague. Lambrix v. Singletary, 520 U.S. 518, 528 (1997).

Aside from its failure to follow Strickland, the Ninth

Circuit’s holding assumes that trial counsel’s preparation for

the guilt and sentencing phases of a capital case can be neatly

separated. It cannot. "A lawyer’s time and effort in preparing

to defend his client in the guilt phase of a capital case continues

to count at the sentencing phase." Tarver v. Hopper, 169 F.3d

710,715 (11" Cir. 1999). Thus, counsel’s pretrial investigation

and preparation has to be considered as a whole. The

information obtained with respect to one aspect of the case will

necessarily influence counsel’s "reasonable professional

judgment" on how to proceed with other portions. See Burger

v. Kemp, 483 U.S. 776, 794 (1987) (counsel reasonably

concluded on basis of initial interviews not to undertake

additional investigation into defendant’s past for possible

mitigation evidence). The Ninth Circuit's opinion ignores these

principles.

B. Trial Counsel Is Not Obligated To Investigate For Or

Present Information To An Expert Witness Unless

Requested To Do So By The Expert

The Ninth Circuit held that at the penalty phase of a

capital case defense counsel has "a professional responsibility

to investigate and bring to the attention of mental health experts

who are examining his client, facts that the experts do not

request[.]" Wallace, 184 F.3d at 1116. The court relied entirely

upon its own precedent to reach this conclusion. See Caro, 165

F.3d at 1226-1228.4 As explained in the Petition for Writ of

4. The circuit court has since reiied in part upon Caro to reverse another

Arizona capital case because trial counsel did not independently provide

information to experts. See Smith v. Stewart, 189 F.3d 1004 (9" Cir. 1999).

Certiorari, Pet. at 10-11, the Ninth Circuit was forced to rely on

its own precedent because there is no support for the court’s :

conclusion in any decision of this Court or the other circuits.

At least one court reached precisely the opposite conclusion.

Hill v. Moore, 175 F.3d 915, 926 (11" Cir. 1999) ("Wwe cannot

conclude that counsel were deficient for failing to provide their :

expert witness with information that, if it existed, the witness }

was in a position to discover"); Card v. Dugger, 911 F.2d 1494,

1512 (11" Cir. 1990) (trial counsel was not obligated to "track

down every record that might possibly relate to Card’s mental

health and could affect a diagnosis" by his experts). Indeed,

until it bifurcated ineffective assistance claims in capital cases,

the Ninth Circuit had expressly rejected any notion that trial |

counsel were obligated to uncover and present information to .

experts unless asked to do so. Bloom v. Calderon, 132 F.3d 3

1267, 1277 (9" Cir. 1997); Hendricks v. Calderon, 70 F.3d at

1038.

The impracticality of the rule established in this case was .

aptly demonstrated by the Ninth Circuit itself in Hendricks :

"To impose a duty on attorneys to acquire sufficient

background material on which an expert can base reliable

psychiatric conclusions, independent of any request for

information from an expert, would defeat the whole aim of

having experts participate in the investigation." 70 F.3d at

1038. Simply put, counsel are entitled to rely on the opinions

of experts hired to assist with the investigation. See, e.g.,

Wilson v. Greene, 155 F.3d 396, 403 (4" Cir. 1998); Walls v.

Bowersox, 151 F.3d 827, 835 (8" Cir. 1998). That reliance is

as appropriate in preparation for the sentencing phase of a

capital trial as in any other aspect of an attorney's

representation. Counsel is not required to second-guess the

opinions offered by an expert nor is the attorney obligated to

know more than the expert or to be independently aware of

what information might assist an expert's evaluation of the

defendant. The Ninth Circuit’s conclusion that counsel should,

ictal.

in fact, possess such clairvoyance is unsupported by any

authority from this Court.

The per se requirement established in this case is a “long

step down the path that leads to the courts’ laying down a rigid

protocol that criminal defense lawyers must follow if they are

to escape being later deemed ineffective." Thomas v. Gilmore,

144 F.3d 513, 516(7" Cir. 1998). Such an approach, however,

is entirely inconsistent with this Court’s recognition that there

are “countless ways to provide effective assistance of counsel

in any given case.” Strickland, 466 U.S. at 689; see also Nix v.

Whiteside, 475 U.S. 157, 165 (1986) (courts must be careful

"not to narrow the wide range of conduct" acceptable under the

Sixth Amendment). Apart from the circuit conflict it creates,

the Ninth Circuit's imposition of new duties on trial counsel

violates Teague and warrants review by this Court.

C. The Discovery Of Additional Potential Mitigating

Evidence In Posttrial Proceedings Does Not Establish

Ineffective Assistance Of Counsel

In Strickland the Court "adopted the rule of contemporary

assessment of counsel’s conduct... ." Fretwell, 506 U.S. at

372. That is, the reasonableness of counsel’s actions must be

assessed as of the time of trial rather than in reliance upon

"second guessing with the benefit of hindsight." White v.

Singletary, 972 F.2d 1218,1220 (11" Cir. 1992); see also Coe

5. The circuit court also suggested that failure by an expert to make a

proper inquiry into the defendant's background might violate Ake v.

Oklahoma, 470 U S. 68 (1985). 184 F.3d at 1118 n. 7. Every court to

consider that argument, including the Ninth Circuit, has found it barred by

Teague. See, e.g., Harris v. Vasquez, 949 F.2d 1497, 1518-1522 (9" Cir.

1990). Reframing the issue as one of ineffective assistance of counsel does

not overcome the Teague problem. Cf Thomas v. Taylor, 170 F.3d 466,

472 (4" Cir. 1999) (rejecting effort to "recast" claim of ineffective expert

as claim of ineffective assistance of counsel).

v. Bell, 161 F.3d 320, 342 (6" Cir. 1998) (court should consider

“the adequacy or inadequacy of counsel’s actual performance,

not counsel’s (hindsight) potential for improvement"). Quite

simply, the focus is "not upon whether counsel could have done

a better job, but upon whether counsel provided the assistance

necessary to ensure the fundamental fairness of the proceeding

whose result is being challenged." Resnover v. Pearson, 965

F.2d 1453, 1460 (7" Cir. 1992). Once again the Ninth Circuit

violates these basic limitations on review of ineffective

assistance claims.

The circuit court decision is premised in part on an

assumption that the discovery of "new" expert opinions during

posttrial proceedings indicates that trial counsel was ineffective

for not uncovering the same information. That assumption is

in turn is driven by the court’s apparent belief that the

presentation of mental health evidence is an_ essential

component of any penalty phase defense. See 184 F.3d at 1113

(the "bizarre circumstances of the crime suggest that Wallace

may have been acting as a result of some mental infirmity,

which might have constituted a mitigating circumstance").

This assumes, of course, that defendants are likely to benefit

from efforts to explain brutal behavior through expert

testimony. See, e.g., Burris v. Parke, 116 F.3d 256, 260 (7"

Cir. 1997) ("jurors may not be impressed with the idea that to

know the cause of viciousness is to excuse it"). In any event,

a finding of ineffective assistance based on the development of

new evidence long after trial violates the contemporary

assessment rule.

The fact that a condemned inmate is able to uncover

experts willing to testify on his behalf years after the trial is

neither significant nor surprising. See Herrera v. Collins, 506

U.S. 390, 423 (1993) (O’Connor, J., concurring). Given that

"(t]he subtleties and nuances of psychiatric diagnosis render

certainties virtually beyond reach in most cases,’" Medina v.

California, 505 U.S. 437, 541 (1992), the existence of new or

additional expert opinions cannot establish that counsel was

ineffective at the time of trial. At most it demonstrates that

various experts "simply arrived ata different conclusion, which

is not surprising." Brewer v. Reynolds, 51 F.3d 1519, 1526

(10" Cir. 1995). More importantly, the Ninth Circuit's

reliance on new experts to establish ineffective assistance

ignores the admonition set forth in Strickland, Burger, and

Fretwell to examine what counsel actually did at the time of

trial and determine from that examination the objective

reasonableness of counsel’s actions. As demonstrated by

Arizona, see Pet. at 13-15, the Ninth Circuit’s approach is

inconsistent with numerous cases from other circuits.°

The state trial is the "'main event,”" Wainwright v. Sykes,

433 U.S. 72, 90 (1977), while habeas corpus review is

"secondary and limited." Brecht v. Abrahamson, 507 U.S. 619,

633 (1993). "Federal courts are not forums in which to

relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887

(1983). Moreover, the states have a "compelling" interest in the

finality of their criminal judgment. Calderon v. Thompson, 523

U.S. at 1501. Under the rule adopted by the Ninth Circuit no

state death judgment can ever be truly final so long as habeas

counsel can uncover any new arguably mitigating evidence.

The opinion below is yet another example of the "‘death is

different’ time warp," Dobbs v. Zant, 506 U.S. 357, 363 (1993)

(Scalia, J., concurring in judgment), and further erodes respect

for state court judgments.

By focusing on what habeas counsel have uncovered years

later rather than considering what was actually done at the time

of trial, the Ninth Circuit ignores the limitations of its federal

6. These concerns are exacerbated when a federal court bases its

decision on evidence never presented to the state courts, as demonstrated by

the second ground upon which Arizona seeks certiorari review.

10

habeas corpus jurisdiction. "Collateral review is not a

repechage round in which the loser in one system of courts

starts from scratch in another." Cain v. Peters, 972 F.2d 748,

750 (7 Cir. 1993). Certiorari should be granted in order to

restore the proper balance to federal court review of challenges

to state trial counsel.

—ee

1]

CONCLUSION

For the reasons stated above amici respectfully

request that this Court grant the petition for writ of certiorari.

Dated: November 18, 1999.

Respectfully submitted,

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

, RONALD A. BASS

; Senior Assistant Attorney General

; PEGGY S. RUFFRA

Supervising Deputy Attorney General

\

WPA RADE

' DANE R. GILLETTE

: Senior Assistant Attorney General

Counsel of Record

Counsel for Amici Curiae

No. 99-689

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

TERRY L. STEWART, Director, Arizona Department of Corrections,

Petitioner

wi

JAMES GRANVIL WALLACE, Respondent

CERTIFICATE OF SERVICE BY MAIL

DANE R. GILLETTE, a member of the Bar of the Supreme Court of the

United States, states:

That his business address is 455 Golden Gate Avenue, Suite 11000, in the

City and County of San Francisco, State of California; that on November 19, 1999, he

served three true copies of the Brief of Amici Curiae States of California, Alabama,

Delaware, Georgia, Kansas, Missouri, Montana, Nebraska, Nevada, Oklahoma, Oregon,

Pennsylvania, Tennessee, Utah, and Washington in Support of Petition for Writ of

Certiorari in the above-entitled matter on the. respondent and by placing same in

envelopes addressed as follows:

James J. Belanger Colleen French

Lewis & Roca LLP Office of the Arizona Attorney General

40 North Central Avenue 1275 West Washington Street

Phoenix, Arizona 85004 Phoenix, Arizona 85007

Denise I. Young

2930 North Santa Rosa Place

Tucson, Arizona 85712

Said envelopes were then sealed and deposited in the United States mail at

San Francisco, California, with the postage thereon fully prepaid.

LOK Neth

‘DANE R. GILLETTE

Senior Assistant Attorney General