Atwood, et al v. Stewart, et al

Filing 443

ORDER GRANTING Respondents 434 Motion to Preclude Testimony of Strickland Expert. Signed by Judge John C Coughenour on 7/24/13.(BAC)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Frank Jarvis Atwood, 10 Petitioner, 11 DEATH PENALTY CASE vs. 12 No. CV-98-116-TUC-JCC Charles L. Ryan, et al., 13 ORDER Respondents. 14 15 Before the Court is Respondents’ Motion to Preclude Testimony of Strickland 16 Expert. (Doc. 434.) Petitioner previously filed notice of his intent to rely on testimony 17 from a Strickland expert and opposes the instant motion. (Docs. 432, 438.) 18 In both its initial scheduling order (Doc. 405) and order resetting the evidentiary 19 hearing and discovery deadlines (Doc. 428), the Court indicated that it does not favor the 20 use of Strickland legal experts. Petitioner asserts that expert testimony is necessary to 21 assist the Court in determining whether sentencing counsel’s failures with regard to the 22 investigation and presentation of mitigation evidence were based on tactical decisions in 23 light of the standards of practice at the time. The Court has considered Petitioner’s 24 arguments, in both the notice of intent to rely on a Strickland expert and the opposition to 25 Respondents’ motion to preclude. Although, as Petitioner notes, some judges permit 26 such testimony, “it is within a district court’s discretion to exclude proposed expert 27 testimony concerning a legal standard of care and to rely solely on the briefs.” Heishman 28 1 2 3 4 5 6 7 8 9 10 v. Ayers, 621 F.3d 1030, 1042 (9th Cir. 2010); see also Hovey v. Ayers, 458 F.3d 892, 910-11 (9th Cir. 2006) (finding no abuse of discretion from exclusion of expert testimony concerning legal standard of care). Because this Court is well versed in the relevant law and standards governing sentencing counsel’s representation at the time of Petitioner’s trial, it finds that expert testimony concerning the prevailing standard of care would not assist it in understanding the evidence or determining a fact in issue. Fed. R. Evid. 702(a). IT IS THEREFORE ORDERED that Respondents’ Motion to Preclude Testimony of Strickland Expert (Doc. 434) is GRANTED. DATED this 24th day of July, 2013. 11 12 13 A 14 15 16 17 John C. Coughenour UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 -2-

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