Lee, et al v. Schriro, et al

Filing 132

ORDER denying Respondent's 129 Motion to Strike Exhibits. Respondents may file a surreply no later than March 25, 2016. Signed by Judge John J Tuchi on 03/07/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darrel Eston Lee,

No. CV-04-0039-PHX-JJT
Petitioner,

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v.

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Charles L. Ryan, et al.,

DEATH PENALTY CASE

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ORDER

Respondents.

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Before the Court is Respondents’ Motion to Strike Exhibits. (Doc. 129.) Pursuant

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to Rule 12(f) of the Federal Rules of Civil Procedure, Respondents move to strike the

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exhibits attached to Petitioner’s supplemental reply brief. (Doc. 128.) Petitioner opposes

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the motion. (Doc. 130.)

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This case was remanded by the Ninth Circuit Court of Appeals, which ordered the

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Court, in the light of intervening law,1 to reconsider Claim 2 and to address whether

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reconsideration is warranted as to Claims 9(A) and 9(D). (Doc. 109.)

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Petitioner filed his supplemental Martinez brief on September 4, 2015. (Doc. 120.)

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Respondents filed their response on November 24, 2015, to which Petitioner replied on

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January 27, 2016. (Docs. 124, 128.) Petitioner attached three exhibits to his reply brief: a

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report by Dr. Barry Morenz, dated January 21, 2016, which is an addendum to his report

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of August 24, 2015; a declaration of Dr. Kenneth Benedict, dated January 20, 2016; and a

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Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Dickens v. Ryan, 740 F.3d 1392
(9th Cir. 2014) (en banc).

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copy of the American Psychological Association’s “Ethical Principles of Psychologists

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and Code of Conduct.” (Doc. 128-1.) Dr. Morenz’s addendum addresses arguments made

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in Respondents’ response brief challenging his previous expert testimony. Dr. Benedict’s

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declaration criticizes the methodology and conclusions reached by Dr. Michael Bayless

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in 1993 and Dr. James Youngjohn in 2002, who each diagnosed Petitioner with anti-

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social personality disorder.

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Respondents contend that it is inappropriate to raise new facts and arguments in a

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reply brief and that the Court should strike the new exhibits because they constitute an

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improper attempt to expand the record in violation of Rule 7 of the Rules Governing

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Section 2254 Cases. (Doc. 129 at 3; Doc. 131 at 6–7.) Rule 7(c) provides that the judge

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“must give the party against whom the additional materials are offered an opportunity to

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admit or deny their correctness.”

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Petitioner did not move to expand the record to include the exhibits attached to his

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reply brief. However, he did move to expand the record under Rule 7 to include the

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exhibits attached to his supplemental Martinez brief (Doc. 120 at 76–77), and

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Respondents did not object to that limited expansion of the record (Doc. 124 at 1).

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Although Petitioner now contends that Rule 7 does not apply for purposes of the cause

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and prejudice analysis under Martinez and Dickens, he does “not object to Respondents’

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production of additional evidence at this stage of the proceeding.” (Doc. 130 at 5–6, 13.)

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Respondents do not request an opportunity to file a surreply. Nevertheless, at this

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point in the case, before the Court has determined whether additional evidentiary

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development is warranted, the Court finds that allowing Respondents an opportunity to

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reply to the new materials, rather than striking the exhibits, is the most appropriate

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course.

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Accordingly,

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IT IS ORDERED denying Respondents’ Motion to Strike Exhibits (Doc. 129).

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IT IS FURTHER ORDERED that Respondents may file a surreply no later than
March 25, 2016.
Dated this 7th day of March, 2016.

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Honorable John J. Tuchi
United States District Judge

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