Jones, et al v. Stewart, et al

Filing 254

ORDER Respondents' Motion to Preclude Strickland Experts (Doc. 229 ) is GRANTED IN PART. The Court precludes testimony from Petitioner's Strickland expert on issues other than the relevant prevailing professsional norms. Respondents 9; Motion to Preclude testimony regarding Sergeant Pesquiera's bloodstain interpretation expertise (Doc. 232 ) is GRANTED. Respondents' Motion to Limit Evidence to Original IAC Claim (Doc. 234 ) is DENIED. Respondents objection to Petitioner's Exhibit 139 is OVERRULED. Signed by Judge Timothy M Burgess on 10/30/2017. (See attached Order for details) (KEP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Barry Lee Jones,

No. CV-01-00592-TUC-TMB
Petitioner,

10

DEATH PENALTY CASE

11

v.

12

Charles L. Ryan, et al,

13

ORDER

Respondents.

14
15
16
17
18
19
20
21
22
23
24
25
26

Pending before the Court are Respondents’ Motion to Preclude Strickland1 Expert
(Doc. 229); Motion to Preclude Petitioner From: (1) Cross-Examining Sergeant Pesquiera
Regarding Her Bloodstain Interpretation Expertise, and (2) Eliciting any Opinion
Testimony From any Witness Whether Sergeant Pesquiera was Qualified as an Expert
Pursuant to Arizona Law (Doc. 232); and Motion to Limit Evidence to Original Claim
(Doc. 234). The Court heard argument on these motions at the prehearing conference on
October 27, 2017.
Respondents oppose Petitioner’s use of a standard of care, or “Strickland,” expert
on the basis that such testimony is admissible only to help the trier of fact resolve factual
issues, and is not admissible to establish that counsel’s actions fell below the relevant
standard of care. (Doc. 229.) Additionally, Respondents assert that expert testimony on
the prevailing professional norms is irrelevant because Petitioner’s noticed witness,

27
28
1

Strickland v. Washington, 466 U.S. 668 (1984).

1

attorney Dan Cooper, is not more qualified than this Court to determine the relevant

2

professional norms at the time of Jones’s trial or postconviction proceedings, or to decide

3

whether counsel’s acts or omissions were objectively reasonable. For the same reasons,

4

Respondents also object to the admission of Dan Cooper’s declaration (Petitioner’s

5

Exhibit 139).

6

In assessing the reasonableness of counsels’ investigation, the Court must assess

7

counsels’ performance in the context of “ ‘prevailing professional norms,’ . . . which

8

includes a context-dependent consideration of the challenged conduct as seen ‘from

9

counsel’s perspective at the time.’ ” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting

10

Strickland v. Washington, 466 U.S. 668, 688–89 (1984)). The Court is fully qualified to

11

understand and apply the legal analysis required by Strickland and it is within the Court’s

12

discretion to allow or exclude proposed expert testimony concerning a legal standard of

13

care. Williams v. Woodford, 384 F.3d 567, 613 n.17 (9th Cir. 2004) (holding that

14

rejection of a proposed Strickland expert was not a prejudicial abuse of discretion);

15

LaGrand v. Stewart, 133 F.3d 1253, 1271 n.8 (9th Cir. 1998) (“[T]here is no requirement

16

that expert testimony of outside attorneys be used to determine the appropriate standard

17

of care.”). The Court finds that expert testimony on the issue of the prevailing

18

professional norms at the time of Petitioner’s trial and post-conviction proceedings may

19

be helpful and will therefore allow expert testimony on this subject. See Earp v. Cullen,

20

623 F.3d 1065, 1075 (9th Cir. 2010) (upholding district court’s decision to allow expert

21

testimony regarding “what trial counsel should have done” but precluding expert from

22

opining on the adequacy of trial counsel’s performance). The Court will, however,

23

exercise its discretion to preclude expert testimony on the subject of the adequacy of trial

24

counsel’s performance and any resulting prejudice therefrom. Respondents’ objections to

25

the related exhibit on the same grounds is overruled. To the extent the declaration

26

contains statements regarding the experts’ opinions on issues other than the prevailing

27

professional norms, the Court will disregard them.

28

Next, Respondents argue that Petitioner should be precluded from cross-

-2-

1

examining the lead investigator, Sergeant Sonia Pesquiera, or any witness, about her

2

bloodstain interpretation expertise. (Doc. 232.)

3

During Petitioner’s trial, the court allowed Sergeant Pesquiera’s bloodstain

4

interpretation testimony over counsel’s Rule 702 objection. (RT 4/12/95 at 65–66.) The

5

court indicated the testimony the prosecutor was attempting to elicit sounded “awfully

6

speculative,” but permitted the prosecutor to question Pesquiera regarding “what an

7

impression site is” while cautioning the prosecutor not to go “any further.” (Id.)

8

Pesquiera explained to the jury that, as a result of a week long course in bloodstain

9

evidence and courses she had taken in forensic pathology through the University of

10

Arizona, she was not an expert “in the field of blood stain evidence or being able to

11

identify it.” (Id. at 28–29; 62–63.) She “could appreciate what type of stains they were in

12

relationship to where the victim could have been and the assailant could have been,” but

13

was not qualified to classify “what velocity” the stains were. (Id. at 62–65.)

14

Pesquiera testified that there appeared to be impression stains—“where you would

15

rest an injured site on to a piece of material or mattress and it soaks through”—on the van

16

carpet between the seats, where blood had soaked through. Id. at 64, 72. Pesquiera also

17

testified that there were spatter stains on the van’s passenger seat and some of the carpet

18

consistent with a person that has a bleeding injury being struck or shaken causing the

19

blood to spatter out. Id. at 72–73.

20

The Court previously denied Jones’s request to depose Sergeant Pesquiera, finding

21

the deficiencies of her blood interpretation evidence not relevant to the Court’s analysis

22

of whether the outcome of the proceedings would have been different if trial counsel had

23

investigated whether there were innocent explanations for the blood located in Jones’s

24

van. (Doc. 185 at 36.) Thereafter, the parties jointly moved for the deposition of five

25

witnesses, including Pesquiera. (Doc. 200.) The parties asserted as cause that allegations

26

that the new forensic evidence presented in these proceedings undermined Pesquiera’s

27

homicide investigation, and that this was relevant to the Court’s Strickland prejudice

28

analysis. (Id. at 4.)

-3-

1

Respondents now suggest that this Court’s order precludes any cross-examination

2

of Pesquiera as to her background and qualifications in bloodstain interpretation. This

3

Court’s order, however, did not reach Pesquiera’s qualifications, rather, it found good

4

cause lacking to depose Sergeant Pesquiera for the purpose of exposing deficiencies in

5

her own bloodstain interpretation. Respondents also argue that Jones should be precluded

6

from eliciting any testimony, from any witness, that Pesquiera was not qualified as a

7

bloodstain interpretation expert because that is a legal conclusion already decided by the

8

trial court. Respondents also argue it is not relevant to the Martinez issue.

9

The Court finds that Petitioner’s ability to present evidence, either through cross-

10

examination of Pesquiera or direct testimony of James, regarding the limited degree of

11

Pesquiera’s training and expertise is cumulative of Pesquiera’s trial testimony, and

12

irrelevant to this Court’s consideration of whether there is a reasonable probability of a

13

different outcome had Petitioner’s counsel sought the assistance of an expert in

14

bloodstain interpretation.

15

Lastly, Respondents move to limit the scope of the evidentiary hearing to the

16

procedurally-defaulted claims raised by Petitioner in his amended habeas petition (Doc.

17

58 (“Amended Petition”)). (Doc. 234.) Specifically, Respondents have identified two

18

categories of evidence which they assert exceed the scope of Petitioner’s original claim:

19

(1) evidence that there were serious flaws in Pesquiera’s investigation of the timeline

20

between Rachel’s injuries and death; and (2) evidence presented by reconstruction and

21

biomechanics experts, which proves that it was not possible for the Lopez children to

22

have witnessed Jones assaulting Rachel as he drove into the Choice Market parking lot.

23

Respondents argue that this evidence alters the claim alleged in the Amended Petition

24

sufficiently to find that Petitioner is attempting to present new, untimely and unexhausted

25

claims. Respondents also argue that these claims are outside the scope of the Ninth

26

Circuit’s remand order.

27

In response, Petitioner asserts that Respondents have waived this argument

28

Petitioner also contends that the challenged evidence does not exceed the scope of the

-4-

1

claim or the remand order because it is offered as proof of prejudice of claims of deficient

2

performance raised in the Amended Petition, specifically: (1) trial counsel’s failure to

3

investigate the critical medical timeline between Rachel’s injuries and death, and (2) trial

4

counsel’s failure to properly challenge eyewitness testimony of the Lopez children.

5

Addressing Petitioner’s waiver arguments first, the Court finds that Respondents’

6

concession to the Court’s expansion of the record, under Rule 7 of the Rules Governing

7

Section 2254 Cases, to consider the proffered exhibits in determining whether Petitioner

8

has demonstrated cause under Martinez (see Doc. 175 at 64–65) did not act as a general

9

waiver of all threshold affirmative defenses to the underlying claim. Respondents

10

preserved their objection to evidentiary development of the underlying constitutional

11

claim. (See Doc. 175 at 72.) Next, Petitioner asserts that Respondents waived their

12

objection to evidence of flaws in Pesquiera’s investigation of the timeline between

13

Rachel’s injuries and death by entering a stipulation to depose Pesquiera which stated

14

that Pesquiera’s homicide investigation was relevant to the Court’s Strickland prejudice

15

analysis. The Court finds that, while it would have been preferable for the State to raise

16

their procedural argument during supplemental briefing or in opposition to a motion to

17

depose Pesquira, the Supreme Court has held that district courts have discretion to raise

18

and consider these threshold barriers sua sponte. See Day v. McDonough, 547 U.S. 198,

19

209 (2006) (treating statute of limitations defense on par with other procedural defenses,

20

and holding that district courts are permitted, but not obliged, to consider, sua sponte, the

21

timeliness of a state prisoner’s habeas petition). The Supreme Court also recognized that

22

these defenses “ ‘implicate[] values beyond the concerns of the parties’ ” such as judicial

23

efficiency, conservation of judicial resources, safeguarding the accuracy of state court

24

judgments by requiring resolution of constitutional questions while the record is fresh,

25

and lending finality to state court judgments within a reasonable time. Day, 547 U.S. at

26

205–06 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2nd Cir. 2000)). Accordingly,

27

despite the Respondents’ failure to raise these affirmative defenses at an earlier stage of

28

these proceedings, the Court, noting that Petitioner has had notice and an opportunity to

-5-

1

respond, see Day, 547 U.S. at 210 (“before acting on its own initiative, a court must

2

accord the parties fair notice and an opportunity to present their positions”), will consider

3

the issue raised by Respondents in this motion in limine.

4

Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is

5

obligated to specify in a federal habeas petition all grounds for relief, as well as the facts

6

supporting each of these grounds. See Mayle v. Felix, 545 U.S. 644, 661 (2005)

7

(observing that Rule 2(c) requires pleading “separate congeries of facts” in support of

8

each ground for relief); Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (observing that

9

‘notice’ pleading in habeas is insufficient and that petitioner “is expected to state facts

10

that point to a ‘real possibility of constitutional error’”) (quoting Advisory Committee

11

Note to Rule 4, Rules Governing Section 2254 Cases). In the context of exhaustion, a

12

petitioner who presents a particular ineffective assistance of counsel claim in state court

13

may develop additional facts to support that particular claim. This does not mean,

14

however, that “a petitioner who presented any ineffective assistance of counsel claim

15

below can later add unrelated alleged instances of counsel’s ineffectiveness to his claim.”

16

Poyson v. Ryan, 743 F.3d 1185, 1202 (9th Cir. 2013), overruled on other grounds by

17

McKinney v. Ryan, 813 F.3d 798, 818–19 (9th Cir. 2015) (citing Moorman v. Schriro,

18

426 F.3d 1044, 156 (9th Cir. 2005)). A claim has not been fairly presented in state court

19

if new evidence fundamentally alters the legal claim already considered by the state court

20

or places the case in a significantly different and stronger evidentiary posture than it was

21

when the state court considered it. See Dickens v. Ryan, 740 F.3d, 1302, 1318–19 (9th

22

Cir. 2014) (citing, inter alia, Vasquez v. Hillary, 474 U.S. 254, 260 (1986); Aiken v.

23

Spalding, 841 F.2d 881, 883 (9th Cir. 1988); Nevius v. Sumner, 852 F.2d 463, 470 (9th

24

Cir. 1988)). In the context of timeliness, the Court also considers the body of law which

25

involves a determination of whether second-in-time petitions were previously presented

26

for purposes of determining if the petition is successive. A “ground is successive if the

27

basic thrust or gravamen of the legal claim is the same, regardless of whether the basic

28

claim is supported by new and different legal arguments. . . . Identical grounds may often

-6-

1

be proved by different factual allegations. . . .” Babbitt v. Woodford, 177 F.3d 744, 746

2

(9th Cir. 1999) (quoting United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)

3

(internal quotations and citations omitted)).

4

The Court finds that the two categories of proffered evidence that Respondents

5

assert exceed the scope of Petitioner’s original claim—evidence that there were serious

6

flaws in Pesquiera’s investigation of the timeline between Rachel’s injuries and death and

7

evidence presented by reconstruction and biomechanics experts—neither fundamentally

8

alter Petitioner’s claims by new evidence nor do they raise new grounds for relief. The

9

evidence is thus properly before this Court. As this Court previously found, Petitioner’s

10

Amended Petition alleged “specifically that his counsel: (1) conducted insufficient trial

11

investigation; [and] (2) inadequately investigated the police work, medical evidence, and

12

timeline of death versus injury.” (Doc. 141 at 8; see also Doc. 115 at 8.) Petitioner also

13

alleged that trial counsel failed to follow up on the preliminary investigative work,

14

including physical measurements of Petitioner’s van taken by their investigator

15

“presumably to determine whether it was physically possible for the Lopez children to

16

have actually seen Rachel sitting in the passenger seat of the van as they claimed. . . .

17

Barnett informed Bowman of the photographs and measurements he took of the van. The

18

fact that nothing was ever done with the measurements was particularly egregious since

19

Ms. Chavez had told Barnett that Rachel was too little to be seen in the van.” (Doc. 58 at

20

40–41.) The challenged evidence falls squarely into the category of additional evidence

21

the Habeas Rules allow Petitioner to develop and present to demonstrate that he is

22

entitled to relief on his claims. See Bracy v. Gramley, 520 U.S. 899, 908–09 (1997) (good

23

cause for Rule 6(a) discovery is shown where specific allegations before the court show

24

reason to believe that the petitioner may, if the facts are fully developed, be able to

25

demonstrate that he is entitled to relief); see also Rule 8(c), Rules Governing § 2254

26

Cases, 28 U.S.C. foll. § 2254 (the court should conduct the evidentiary hearing “after

27

giving the attorneys adequate time to investigate”).

28

Respondents also argue that Petitioner’s evidence, developed after 15 years of

-7-

1

investigation and a budget for consultants and experts that exceeds $100,000, disregards

2

Strickland’s command that this Court must inquire whether trial counsel’s performance

3

was “reasonable considering all the circumstances,” 466 U.S. at 688. The Court finds that

4

this argument should be addressed by the Court when considering the merits of

5

Petitioner’s claims after the parties have had a chance to develop their evidence as to the

6

prevailing professional norms at the time of Petitioner’s trial.

7

IT IS THEREFORE ORDERED that Respondents’ Motion to Preclude Strickland

8

Experts (Doc. 229) is GRANTED IN PART. The Court precludes testimony from

9

Petitioner’s Strickland expert on issues other than the relevant prevailing professional

10

norms.

11

IT IS FURTHER ORDERED that Respondents’ Motion to Preclude testimony

12

regarding Sergeant Pesquiera’s bloodstain interpretation expertise (Doc. 232) is

13

GRANTED.

14
15
16
17
18

IT IS FURTHER ORDERED that Respondents’ Motion to Limit Evidence to
Original IAC Claim (Doc. 234) is DENIED.
IT IS FURTHER ORDERED that Respondents objection to Petitioner’s Exhibit
139 is OVERRULED.
IT IS SO ORDERED.

19
20

Dated this 30th day of October, 2017.

21

/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28

-8-