Armstrong v. Ryan et al

Filing 91

ORDER granting 83 Motion for Leave to File Excess Pages for Motion for Order to Show Cause and 85 Motion for Leave to File Excess Pages for Motion for Evidentiary Development. The Clerk of the Court is DIRECTED to file Petitioner's propos ed motions lodged at Documents 84 and 86 in the Court's electronic docket, and to enter Document 86 as a "Notice of Request for Evidentiary Development" in the Court's electronic docket. Signed by Judge Rosemary Marquez on 6/4/2018. (SIB)

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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 Shad Daniel Armstrong, Petitioner, 10 11 v. 12 No. CV-15-00358-TUC-RM DEATH-PENALTY CASE Charles L. Ryan, et al., ORDER 13 Respondents. 14 15 Pending before the Court are two motions filed by Petitioner seeking the Court’s 16 permission to exceed page limitations found in the District Court’s Local Rules and in an 17 order entered in this case. (Docs. 83, 85). Respondents have filed responses to both 18 motions and Petitioner has filed replies. (Docs. 87–90). For the reasons stated below, the 19 motions are granted. 20 Petitioner has lodged a 32-page memorandum in support of Petitioner’s motion for 21 order to show cause why the Federal Public Defender should not be allowed to issue a 22 subpoena duces tecum on Virginia Ruth Armstrong and have unimpeded access to 23 Armstrong’s relatives. (Doc. 84.) Simultaneously, Petitioner seeks permission to exceed 24 the 17-page limitation found in Local Rule 7.2(e)(1). (Doc. 83.) 25 Petitioner has also lodged a 76-page memorandum in support of Petitioner’s 26 request for evidentiary development (lodged at Doc. 86) and a motion to exceed the 60- 27 page limitation for evidentiary development motions imposed in the case management 28 order (“Order”) (Doc. 5). (Doc. 85.) DISCUSSION 1 2 3 I. Motion for Leave to File Motion for Order to Show Cause that Exceeds the Page Limitation (Doc. 83) 4 Petitioner has alleged that the protections afforded to crime victims under Arizona 5 law prohibited his defense team from directly contacting his mother, adoptive father, and 6 half-sister, resulting in an incomplete mitigation defense. Petitioner further alleges that 7 the State’s continued reliance on those laws denies him a vehicle for vindicating his 8 federal constitutional rights. He requests leave to file a motion in excess of the 17-page 9 limitation found in Local Rule 7.2, requesting leave to file an order to show cause why he 10 should not be allowed to issue a subpoena duces tecum on his mother, and have 11 unimpeded access to his relatives. Petitioner asserts good cause for the motion is 12 demonstrated by the necessity to address an issue of first impression in federal court 13 under the First, Sixth, Eighth, and Fourteenth Amendments. 14 Respondents urge the Court to deny Petitioner’s motion for leave to file an order 15 to show cause and instruct Petitioner to file an amended motion for evidentiary 16 development that includes this request. Because the motion for leave to file a motion for 17 an order to show cause is currently only lodged before the Court, the Court does not 18 consider whether this motion is the proper procedural vehicle to address Petitioner’s 19 request; the Court addresses only Petitioner’s request to exceed page limitations in the 20 motion at issue. 21 Respondents contest Petitioner’s assertion that the motion is necessarily lengthier 22 because it involves an issue of first impression in federal court and note that Petitioner 23 has already extensively briefed this issue in his Petition and other filings. The Court 24 disagrees. Although the victim contact issue has been addressed in other cases in this 25 District, the Court finds that none of those cases have required the Court to consider the 26 complex factual issues alleged here: that the victims in the case are also family members 27 who represent a potentially untapped and primary source of mitigation to which 28 Petitioner was denied access by application of state law, and that Petitioner has now been -2- 1 informed that Petitioner’s mother refuses to receive correspondence from Petitioner’s 2 defense team during federal habeas proceedings. 3 Having reviewed the motion to exceed page limitations and the accompanying 4 lodged motion, the response, and the reply, the Court finds Petitioner has demonstrated 5 good cause for filing a motion that exceeds the page limits, and will address 6 Respondents’ arguments that the motion for leave to file an order to show cause should 7 be denied when the motion is fully briefed. 8 9 II. Motion for Leave to File Motion for Evidentiary Development that Exceeds the Page Limitation (Doc. 85) 10 According to Petitioner, his Motion for Evidentiary Development exceeds the 60- 11 page limitation imposed by this Court notwithstanding his efforts to excise unnecessary 12 legal argument and to make the summary of each exhibit more concise. Petitioner asserts 13 that the length of the petition, response, and reply, as well as the number of exhibits 14 addressed in the Motion for Evidentiary Development, demonstrate good cause to exceed 15 the page limitation. (Doc. 85.) 16 Respondents argue that Petitioner has not demonstrated good cause because the 17 length of the Petition and subsequent briefs is irrelevant to the length of his Motion for 18 Evidentiary Development, and further, under Jones v. Barnes, 463 U.S. 745, 754 (1983), 19 and Smith v. Robbins, 528 U.S. 259, 288 (2000), counsel has a duty to winnow the 20 exhibits and argument to those most likely to warrant relief. (Doc. 87.) The Court 21 disagrees. 22 Respondents’ argument fails to distinguish between the role of appellate counsel 23 and habeas counsel. A habeas petition is the last chance for most capital defendants to 24 present federal challenges to their convictions and sentences. Unlike appellate practice, in 25 which counsel is advised to “winnow” issues and has no constitutional duty to raise every 26 non-frivolous claim, see Jones, 463 U.S. at 754, and Robbins, 528 U.S. at 288, counsel 27 representing a petitioner in a capital habeas case has a professional obligation to raise all 28 colorable claims. See Am. Bar Ass’n Guidelines for the Appointment & Performance of -3- 1 Def. Counsel in Death Penalty Cases (“ABA Guidelines”) 10.15.1(C) (rev. ed. 2003) 2 (directing federal habeas counsel “to litigate all issues, whether or not previously 3 presented, that are arguably meritorious” and “make every professionally appropriate 4 effort to present issues in a manner that will preserve them for subsequent review”). 5 Respondents also fail to support their argument that Petitioner has a duty to 6 “winnow” the number of proffered exhibits. Respondents may of course argue, in 7 response to Petitioner’s Motion for Evidentiary Development, that the proffered exhibits 8 are irrelevant or cumulative, but the Court finds no support for Respondents’ argument 9 that Petitioner should “winnow” his exhibits to present just the most compelling exhibits 10 in support of his claims. 11 Finally Respondents argue that the winnowing process and page limitations are 12 especially appropriate in habeas cases under the AEDPA’s restrictive review. 13 Respondents’ view fails to take into account the procedural exceptions available to 14 petitioners that might allow them to present new evidence and new claims in a federal 15 habeas petition. 16 Having reviewed the motion to exceed page limitations and the accompanying 17 lodged motion, the response, and the reply, the Court finds Petitioner has demonstrated 18 good cause for filing a motion that exceeds the page limits. 19 III. Motion for Evidentiary Development (Doc. 86) 20 Finally, on the Court’s own motion, Petitioner’s lodged motion for evidentiary 21 development (Doc. 86) shall be construed as a “Notice of a Request for Evidentiary 22 Development.” 23 Accordingly, 24 IT IS HEREBY ORDERED that Petitioner’s motion for leave to file the motion 25 for order to show cause why the Federal Public Defender should not be allowed to issue a 26 subpoena duces tecum on Virginia Ruth Armstrong and have unimpeded access to 27 Armstrong’s relatives that exceeds the page limitation of Local Rule 7.2(e)(2) (Doc. 83) 28 is granted. -4- 1 2 IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to File Motion for Evidentiary Development that Exceeds the Page Limitation (Doc. 85) is granted. 3 IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to file 4 Petitioner’s proposed motions lodged at Documents 84 and 86 in the Court’s electronic 5 docket, and to enter Document 86 as a “Notice of Request for Evidentiary Development” 6 in the Court’s electronic docket. 7 Dated this 4th day of June, 2018. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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