in Re Thomas Wayne Florence

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                  Galveston Police Department            Case;-A^Q1G^00010H5
                                                         Unit:   1952

  TypeofIncident-A€BimMamy«iimber.              Date^oMrieident^2,12,2Qip
 RqpbrtingOffiGen^G^ague,     r—Bi8^#:-834-,     Dateiofile|^M2^2a©»s

Case Disposition:




    Approved by
     Supervisor Mltchdl               Badgefe          343 Page 2of2 J\UO
I                                        )                                         ^)
                                                                                           DEFENDANT'S!
                                                                                              EXHIBIT 1

                                                                                                 //
                    AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT

    THE STATE OF TEXAS                                                                                    AIM)
    COUNTY OF GALVESTON


           The undersigned Affiant, being a Peace Officer under the Laws of Texas and being duly sworn, on
    oath makes the following statements and accusations:

    1.     There is in the Galveston County, Texas, a person described as follows:

           Thomas Wayne Florence: Date of Birth: 6/26/1968: Race: Black: Sex: Male: Height: 5W:
           Weight: 207; Hair: Black; Eyes: Brown; Social Security Number: XXX-XX-XXXX: Address: 5102
           Avenue O V2, Galveston Texas 77551

    2.     The said Thomas Wayne Florence is the suspect in an alleged Sexual Assault of a Child.

    3.     It is the belief of Affiant, and he hereby charges and accuses, that:

    4.     Thomas Wayne Florence, in Galveston County, Texas, on or about the date of February 26, 2010,
           did then and there intentionally or knowingly cause the penetration of the vagina of Amber Guarnelo. a
           child who was then and there younger than 17 years of age and not the spouse of the defendant, by
          defendant's penis.

    5.    Affiant has probable cause for said belief by reason of the following facts:

          Your Affiant, Detective Holly Johnson #340, is employed as a Peace Officer with the
          Galveston Police Department and charged with investigating crimes that occur in the City of
          Galveston, Galveston County, in the State of Texas. Affiant has, been a Texas Peace Officer for over
          9 years employed by the Galveston Police Department. Affiant is currently assigned to the Criminal
          Investigations Unit of the Galveston Police Department.

          On March 2, 2010. Affiant was assigned follow-up investigation to Galveston Police Department
          Case number 2010-13986 (Sexual Assault of a Child). Affiant learned the following facts
          from the case report:

          1.) Affiant learned from reading Galveston Police Department case #2010-12135 (runaway report)
              that on February 19, 2010 Amber Guarnelo had not returned home and was entered into
              TCIC/NCIC as a runaway.
          2.) Affiant learned from reading Galveston Police Department case #2010-13986 that on February
              26, 2010 Officer Garcia #733 called Thomas Wayne Florence in regards to Amber Guarnelo's
              whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past
              when Amber Guarnelo had runaway and was able to provide information on her whereabouts.
              Affiant learned from reading the police report #2010-13986 that on February 26, 2010 at about
              10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz stating her and Amber Guarnelo
              would turn themselves into the Galveston Police Department. Affiant also learned from reading




                                                                                                      A Kd)
                                                                     >
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    the police report that Amber Guarnelo was transported to Ben Taub Hospital for a Psychiatric
    evaluation for drug abuse, suicidal thoughts and attempts.
3.) Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733
    received a phone call from Robbie Guarnelo stating that while at Ben Taub Hospital a pregnancy
    test was administered to her daughter, Amber Guarnelo the result was positive. Affiant also
    learned from the police report that when Robbie Guarnelo askedAmber who the father was
    Amber replied, "T" (A.K.A. Thomas Florence).                     ;
4.) On March 9, 2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with
    Amber Guarnelo at the Child's Advocacy Center. Affiant observed this interview from a separate
    room. Affiant observed Amber stated that she is at the Advocacy Center to talk about her and
    another person named Thomas. Amber said she met Thomas through a friend. Affiant observed
    Amber say that she is about one month pregnant and the father might be Thomas Florence.
    Amber describes sex as when "my everything touches their everything and the boy part goes
    inside the girl part." Affiant observed Amber say that she has had sex with Thomas about eight
    times at different houses in Galveston. Amber said the last time they had sex was on February 26,
    2010. Amber said this happened at a house in Galveston on a mattress on the floor.
5.) Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he
    thought Amber was eighteen years old.
6.) Affiant spoke with A.D.A. Kayla Allen who advised to charge Thomas Florence with Sexual
   Assault of a Child and recommended bond be set at $250,000.


Based on the above probable cause Affiant requests an arrest warrant be issued for the above listed
Thomas Wayne Florence.

WHEREFORE, Affiant requests for issuance of a warrant that will authorize him to arrest the said
Thomas Wayne Florence.




                                            Affiant



       Sworn and subscribed to before me by said Affiant on this the 22nd day of April, 2010



                                            Magistrate, Galveston County, Texas




                                                                                          -AKo
                              //JCA^/V
  THE STATE OP TEXAS                                      WARRANT OF ARREST
            vs.
  FLORENCE, THOMAS W                DE^P4NT's
                                    _ EXHIBIT
                                                          Case No.        G10100086
  5102AVB O 1/2                                           Bond:$250,000.00
  GALVESTON TX 77550

  DL #11505205
  DOB 06-26-1968          RACE: B    /SEX: M


  THE STATE OF TEXAS

  TO ANY SHERIFF, CONSTABLE OR PEACE OFFICER OF THE STATE OF TEXAS,
  GREETINGS:

  You are -herebyffcommahded gteefSEfcgsiy
                   FLORENCE, THOMAS W                                 *
  if to be found in your county and bring them before me, a.-Juafeice,of..
  t. he Peace ^n and'foar J'ct ;AAEiA of Galveston County Texas/ at my ofjice
  at::-1922''!Sea3;vV^iGa?Iveatbh;f^TXg'775-50. in said county, immediately, then
  and there to answer the State of Texas for an offense against the laws
  of said State,    to-wit:

                   SEXUAL ASSAULT OF A      , at
 Oft/O o'clock _jA_M., and executed on the &9~* day of    A/**--'•••! *
 20 in    at 0W/O o'clock a      M., by arresting the within named
 FLORENCE, TJIOM&S W                               , the JSp^day of        Afts-i /
 20JeP_, at G^lircS/^ Cr^JL                    , in fefcgr^ County, Texas
 and *Taking his bond, *placihghimAi-jj. nail -at^ ^fc^^^Cnt^jL
      I actually and necessarily traveled          miles in the service
of this writ, in addition to any other mileage I may have traveled
in the service of other process in this cause during the same trip.

FEESr
 Making Arrest ..$_                                          Constable/Sheriff
 Mileage..          $A_
 Taking Bond        $                 _                            County, Texas
 Commitment.        $                 N.            i    ^ . _
 Release ........ $__               by Ii_Wf; J-           tVt                Bepatsy
 TOTAL             .$

* strike according to facts
,GPD#i6^L398e       "                                                            Ki Y^A-v
Ti~   *CXDMMITMENT      *                           MOT   G1010008S
                                                                         AI (5)
       THE     STATE        OF    TEXAS             IN JUSTICE'S COURT
                                                    PRECINCT NO.   1
            COUNTY OF GALVESTON




      The State of Texas, to the Sheriff of GALVESTON County, Greeting

           YOU ARE HEREBY COMMANDED to commit to the jail of GALVESTON

      County the body of FLORENCE,THOMAS W

      on the charge of SEXUAL ASSAULT OF A CHILD
                                                                                     rixs*

      The said defendant may be released on Bond Amount; tr:Wr3~d 599:'60r-Q£)
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                           Galveston Police Department
                                                                                      'No:?   •    13986
          Type of Incident- Sexual Assault ofaChild ;, \/                ;'Bateo^In!dcin^i?;2/2&S01O
         Reporting Officer: H. Johnson               Badge #: 340          Datedf«ep^-?«2i2fia01

       currejuly^t Ben Taub Hospital where Amber was receiving; medical and psychiatric treatment for drug abuse
       and suicidal thnnphts. Rnhhjft told Officer Garcia that apn-fnancy test wagftvemto Amber^nTvJ^-^~~~
       positive that shewas pregnant and Amber told hertherather was Thomas Florence.
        Robbie alsotoldOfficer Garcia that she received aphone call from afemale indenturing herself as Thomas
       Florence s wife: Wannette Jackson. Robbie said Wannette told her matThomas was adrug dealer and             -K:
       assaulted her (#2010-10125). Robbie said Wannette told hershe was aware ofthe relationshm between
      Thomas and Amber.


      CID follow up:                                     .                                __


        ~ -^-            £S^!^^^L6g^toeiaJg^g"gyj^oa^""«^'                              «th rtnThrrflinrnrln nt
     Sf-S^ aAdvocy<^nterlj ofas^ rhfeinffry^w fi5a ypaaSUj^Ambcr said she was at the
     2l I - ^9?*f" ^at^^«gdai0therPerson named Thomas. Ambersaid she metThomas
     •tasughji friend and is Bbcm^ma^pgSB^wA the father nugm beThomas. AriAerdescribes sex as
     wT^rSrt^? «f^***^«yffi^^i «aeboy part goes inside the girl part." Ambersaid she has
     had sex with Thoraas^abjutoghUfanes at different houses inGalvestm^mteTsaidUhe last timc-sneTBfrsex-*         if-
     with Thomas was nnrf^j^^^oarMmbersaid ftgjamamed at ah^eJng^^^T^,,^ m
     theflgor.See Amber Guarado's vkieqtanwfBto^g? y, ^ _—^xA^t^S^ "                                         -
      ,FTtV5C 5TOfTJa/W©\mr^^r *^^-«*,^^iy»^.^*- *..        ^ _ ^.- . _ _Y!
      I conducteda voluntary videptapa |hj^G«g^o_afttcGalvesto&Pofice Department.
                 [j^M_AtnberjmawayJ«

     was'lait-home:^




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     5Jfe*£i3ldj2^                                             outthat she might be pregnant Robbie said
    Amber starting saying, please Mom don't lock him up.'Amber told Robbie that Thomas had planned it.
    Robbie said when they got to BenTaub, Amber was given apregnancy test and the results were positive.
    Robbie said Ambersaid toheragain please don'tlockhimup.
     Robbie said Amber told her she was positive that Thomas was the father because "customers" had touse
    condoms but he (Thomas) did not




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                                     CAUSE NO. I0CR1217                      .r-t,        -

THE STATE OF TEXAS ,                                             IN THE DISTRI&CQIJRT '%
Vc                                                               GALVESTON COUNTY,            '%>
                                                                       TEXAS


THOMAS WAYNE FLORENCE                                            56"= JUDICIAL DISTRICT

                        MOTION FOR MATERI AT •WITNESS BOND

            COME NOW THESTATE OFTEXAS, by and through, her Assistant District
Attorney, Kayla Allen, and request this Honorable Court to issue a writ and a material
witness bond on Amber Guarnelo. The State hereby requests that the bond be set at
S25.000 based on the following facts:

     (1.)
             ^tea^JJSSf^getoaisfe^feteBalifacbwia^               "••         .       Sensed
              ^^^.S^mlSfifiwg^d^rliai^ccun^.-                               ' % She is a
              material witness, crucial"to the presentation ofthis Sexual"Assault ofa Child
              case. Amber Guarnelo is the victim in this case.

     (2.)     The District Clerk's Office issued a subpoena for Amber Guarnelo on May
              23, 2011. Amber Guarnelo was served at the District Attorney's Office on
              May 23, 2011 by Investigator-Harry Millo. Also Robbie Guarnelo, who is the
              victim's mother, was also served at the Galveston County District Attorney's
              Office on July 11, 2011 by investigator Carol Adkins. On July 28, 2011 the
              Defendant subpoenaed both Robbie and Amber Guameb ior his Franks
              Hearing on July 29, 2011, in which both appeared and were told be return
              Tuesday, August 2,2011 at 8:30a.m.

     (3.) tAmbeE\Guarnda-^h^xb«n>CTCpQrjs^                       ' as sffl^to-/thtiEtfs$ia(
              Attora^&'6irrce?mai^
              w^^MfeiJ             ,, ,   s       jfetf On Auiust'l, 2011. Ihej>istnct
              Attorney's"Office vies contacted by Robbie Guarnelo, the mother ofAmber
              Guarnelo, and she informed them that Amber had left to gc to the store and
              never returned. Robbie Guarnelo alsoinformed theDistrict Attorney's Office
              that family members ofthe Defendant had been in contact with her and were
              persuading her from cooperating withthe St2te.
     (A.)     Credible information was received that Amber Guarnelo has been receiving
              money and benefits from the defendant's sister Sharon Florence in order to
              persuade her to be unavailable as a witness for trial. Amber reported to her
              mother that Sharon Florence had given her SI20. Robbie Guarnelo believed
              that would be enough topay for her togo to Louisiana where the Defendant's
              brother is living.




                                                                                                    ASf
                                                                                                     107
oat ^svtW^L
                                  AFFIDAVIT for SEARCH WARRANT

In the name and bythe authority ofthe State ofTexas, County of Galveston:
I, Detective H. Johnson (affiant), being a peace officer under the laws of Texas, and being fully
sworn, on oath make the following statements and accusations*.                               ;
Affiant is a police detective assigned to investigate crimes that occur in Galveston. Affiant has
over 10 years of experience as a peace officer. Affiant has personally investigated Galveston
police case number 2010-13986,

A. There is in Galveston County, Texas, a suspected person described and located as follows:
    Thomas Wayne Florence (Black male, date of birth: 6/26/1968 who is currently in the
    Galveston County Jail.)

B. There is at suspected place and prerriises an item or items thatconstitute evidence that tends
   toshow that a particular person committed an offense, to-wit; Sexual Assault ofa Child.
Affiant requests that a search warrant be issued to search for and seize:
A sufficientquantity of a known sample of the
«   Saliva

from the body of Thomas Wayne Florence, in order that it may be forwarded to a competent
forensic laboratory where the known samples can be compared to the suspected samples
recovered and preserved as evidence in this case; all in accordance with accepted medical
practice.

 C. It is the belief of the affiant and he hereby charges and accuses that:

heretofore, to-wit, on or about the 26th day of February A.D. 2010. and before the making and
filing of this complaint, in the County of Galveston and State of Texas, Thomas Wayne Florence,
did then and there intentionally or knowingly cause the penetration of the vagina of Amber
Guarnelo. a child who was then and there younger than 17 years ofage and not the spouse ofthe
defendant, by defendant's penis.

D. Affiant has probable cause for said belief byreason ofthe following facts:
1. Affiant learned from reading Galveston Poli™ Department case #2010-12U5 fninawav rrnorr) ihilt on
   February.19.2010 Amber Guarnelo had not returned home and was entered into TCIC/NCIC as a
    runaway.
2. Affiant learned from reading Galveston Police Department case #2010-11936 that on February 26, 2010
   Officer Garcia #733 called Thomas Wayne Florence in regards toAmber Guamelo's whereabouts-
    Officer Garcia reported that Thomas Florence had given him information in the past when Amber
    Guarnelo had runaway and was able to provide information on her whereabouts. Affiant learned from
    reading thepolice report #2010-13986 thaton February 26, 2010 at about 10: 09 p.m. Officer Garcia
    received aphone call from Lisa Ruiz stating her and Amber Guarnelo would turn themselves into the
    Galveston Police Department. Affiant also learned from renrtipB the police report that Amber Guarnelo
    «.-««trancpnrtPfl mRpn Tni.h Hospital for aPsychiatric evaluation for drag abuse, suicidal thoughts and




                                                                                                              737
                                                                                                                  J&w


••#


 3 Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733 received
  ' nphone call from Robbie Ouamelp stating that while at Ben 1aubHospital apregnancy test was
    administered to her daughter, Amber Guarnelo the result was positive. Affiant also learned fronTthe
        police report that when Robbie duamelo asked Amber who the lather was Amber replied, "T" (A.K.A.
        Thomas Florence).                                                                ...           • i. » .
 4 C'hn March 9.2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with Amber
    Guarnelo at the Child's Advocacy Center. Affiant observed this interview from aseparate room, Affiant
    observed Amber stated that she isatthe Advocacy Center to talk about her and another person named
    Thomas. Amber said she met Thomas through afriend. Affiant observed Amber say that she isabout one
       <|T,nnth pregnant and the father might be Thomas Florence. Amber describes sex as when "my everything
         touches their everything and the boy part goes inside the girl part." Affiant observed Amber say that she
         l1?g haH fifty, with Thomas about eieht times atdifferent houses inGalveston. Amber said the last time
         rhgThad sex was onFebruary 26, ioiQ. Amber said this happened at ahouse in Galveston on amattress
         nn thfi flffWi
  5. Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he thought .
         Amber was eighteen years old.
  6. Affiant learned from Amber Guarnelo that shegave birth to her daughter on October 22.2010.
      At thf j time. Affiant has not received known comparison samples as requested above. Affiant
      believes that a laboratory analysis of the samples is needed for comparison. Such laboratory
      analysis will constitute evidence that Thomas Wayne Florence committed the offense of Sexual
      Assault of a Child.


      Based on aforementioned facts: affiant requests that a search warrant begranted ordering that the
      said Thomas Wanye Florence be taken to a qualified POUCE person, and that a sufficient quantity
      of saliva betaken from the body of the previously described person to perform tests, analysis and
      comparisons; all in accordance with accepted medical and police practice.


         Sworn to. and
         •S.       . . j subscribed before
                         -..L/.JL.J t .l   me, this ^£^day
                                           ~»« tMr.  ~2**  ofjS^y 2011 at /sfpfi&Jfl&ffi.

         Magistrate.-SaTveston County, Texas


         Court




                                                                                                                  j6^
                                                                                                                        _A5(P

                                             THE      COURT:      That      is   true.

                                            MR.       HALL:      Then vi.tn rsaards to Amber,                           if

   he's talking about outside the time"peripd-was;                                                          lit: • Ji.ilS vv .




  her, "which is the •window during which this-' sexual"'                                                         t

          ssault is alleged to have                                occurred



^h^^^^^^^jjj^^y^lfc.                                      So, the only celevsnt time period'
  can be                   the        time      ueriod. that           he   knew               Stir    any--ir-ig


 that l-isO-3=n£d out.sid.5 that., .time r>e±i6d can't be




"**>. m   7T7-




                                          \ H?..~ H51J]_l--^~_2^- rhz ." '




                                          ao,    j.   cruess my. i a s t r u c t i o s       ~c   yD'j   is :

                 - —   —   w   w    saws your          wusstio?.?           NuEJbes-    oss.       ITr :s     ~

                                   •= 2   sh=    —     v.:hsii   the    witssss        had   sex      wilia

                 Nor




                                                                                                                    ^^Cx)
                                         .G-tHlH
       RESPQNSES*aKBT^CHM4BEr^^
 REQUEST NO. 1: Wasn't you the Lt. on duty March 27,2010?

 Response:      Yes.


 djdnfi                 ' wissalleg^y^^
•Response: A No,




REQUEST NO. 4: Did you signoff on G.P.D. policereportno. 2010-20649 March 27,2010?

Response:       I approved a portion ofthat report.

REQUEST NO. 5:          Did Clemente Garcia III tell you that he was about to illegally and
unlawfully arrest stalk me with a statutory null and void TACT BPP arrest warrant that was not
signed to (illegally) legally and lawfully arrest me? (with On 3-27-2010),

Response:       No.

REQUEST NO- 6: Does the shift Lt.(s) On March 27, 2010 reviewed) use of force
investigation: documents and video of shift (sgt's) investigation?

Response:       Yes.

REQUESTNO. 7: Was Clemente Garcia and your cell phones used on 3-27-10 (GPD No. 2010-
20649) was issused by the City of Galveston?

Response:       I do not remember.          s

REQUEST NO. 8: If so what carrier is the city contracted with on 3-27-10?

Response:       I do not remember.

REQUEST NO. 9: What was you and C. Garcia's cell phone(s) numbers on file: records with
GPD on 3-27-10?

Response:      Objection. Fed.R.Civ.P, 26(b). Therequested information is beyond that which is
relevant to any claim or defense at issue in this case.




                                                                                     JJ1
                                           s-\\-\H                                    M^
REQUEST NO. 10.: Isn't it a crime to fabricate police reports to cover up an illegal arrest and
assault upon a working: college citizen.
Response:      It is a crime toculpably engage inillegal activity.




                                                                                      >3K
                                      G4H34                                             AS
14.    Clemente Garcia III, when you exited the personal SUV that you and A. Mommad was in
while I was already in handcuffs by Sgt. Chapman, didn't you walk up and said remember me
"mother fucker" and kneed me in the top of my eye busting it open?

ANSWER:        No.



 15.    Clemente Garcia III, wasn't you referring to March 24, 2010 when you seen [sic] me at
G.P.D.?

ANSWER:        I don't understand this question.


46/- ;^fOTenteGas i                   •            4tegg^^^^^S? -
No.-A20It3"-I3S56 :was,~alleged ,to* tact occurred ,o£ .February.26," 2010? - And -changed."-to".
PeSk00^MTy^c^sr



17.    Sgt. Archie Chapman, didn't you run your patrol car upon the curb in front ofa trailer
and hit me with your car and knocked me down and I did not slip as you falsely state in your
report and that [I] bumped your car after you tried to block me?
ANSWER:       I am not Sgt. Archie Chapman.


18. Sgt. Chapman, didn't you, A. Mohammad and other officers present witness Clemente
Garcia III, walk up and stated remember me mother fucker and kneed me inthe face busting my
top eye which EMS stated needed 3-4 stitches?

ANSWER:       I am not Sgt. Archie Chapman.


19.    Clemente Garcia III, you're aware that Galveston Police Department policies and
procedures prohibits unnecessary unprovoked use of force upon a citizen?
ANSWER:       I am aware that police department policy prohibits use ofunreasonable force.

20.    Clemente Garcia III, aren't you're aware that you never had valid, legal documents on 3-
27-2010 to arrest, detain me before and after you and Sgt. Chapman assaulted me?
ANSWER:       No. I certainly did not assault you and am aware of no information suggesting
Sergeant Chapman assaulted you.
                       RESPQNSESTa;R£Q:^^^©R^A®MIS^QNA

(1)




(2)   ©efendanjp£4emente^                                                        - >20T0via
      v'c^^l5onimtsfiaaiinS      •        Md^^^^lbJift^^^TMH^tPelfc^B^*


(3)   li^aiaM?^«rf!e^?s^rcirffl;-Mia^^>bu 1             n (GPD No. 2010-13986) that-you
      ^ed^olr^M^
      2©f^@P®^Jil^Oi0i3M»'




(4)   Defendant Clemente Garcia III, did you call (832) 388-8329 any other dates January or
      February 2010?    .

Response:    Objection. Fed.R.Civ.P. 36(a); 33.


(5)   Defendant, Clemente Garcia III, was cell phone no. (Cricket) (409) 443-6434 your cell
      phone on February 26, 2010 are any other dates?

Response:    Objection. FED.R.CIV.P. 36(a); 33.

                                                                                 r
(6)   Defendant, Clemente Garcia HI, was (409) 443-6434 truly your cell phone?
Response:    Objection. Fed.R.Civ.P. 36(a); 33.


(7)
                 eremerite-Garcia III, didnH you^testify"at^L6ckr217-2      •        I 5trial and
              9mgmgm&&®@ffiflffiffi$               • •-c'df^eH4'0^)^4^6-434?



(8)   Defendant, Clemente Garcia III, did you pay your Cricket (409) 443-6434) monthly bill?
Response:    Objection. Fed.R.Civ.P. 36(a); 33.
                                             3
                               G-IH34
                 llsaEM3FJ^RESB0NSES^®mE©UESTf©R^ADMjS^MlN
                                                                                    J-
(1)    fl^f^gipCie^^
      ^20TTnD9o^ryoircruelreporF€vcrfoo'k place brfeitKer 2-26 or 27,2010?

^^ponsc'      Deny.


(2)    Defendant^emehte Garcia
       cellimone?aMrial^                                         had a Cricket cell phone?



(3)    DefendanOClehiente Gain       • , didn't you state in (GPD No. 2010-13986) that you
       o^edamevc i        ! iorfe~rioA (832) 388-8329, on Februarym^m*md?muary 19,
       2m0~GPD No. 2010-12135?

KeSpohseA '   Admit.


(4)    Defendant Clemente Garcia III, did you call (832) 388-8329 any other dates January or
       Feba>ary2010?

Response:     Objection. Fed.R.Civ.P. 36(a); 33.



(5)    Gejpdants^leni^^

Response:     Objection. Fed.R.Civ.P. 36(a); 33.


(6)    Defendant, Clemente Garcia III, was (409) 443-6434 truly your cell phone?

Response:     Objection. Fed.R.Civ.P. 36(a); 33.


(7)   D5s#3tsial«^
      sjteted^ou-Tiever^recewed-aOricketlJillfor your cell phone? (409) 443-6434?

Wspohse:      Admit.


(8)   Defendant, Clemente Garcia III, did you pay your Cricket (409) 443-6434) montltly bill?

Response:     Objection. Fed.R.Civ.P. 36(a); 33.
y&
 2010.


      Assuming         for   argument's       sake/   that   the    offending

 sentence     was      removed   from   the    affidavit,    the    remaining

 portions of the affidavit, state probable cause for the

 arrest warrant and for the search warrant.

      In Issue,No. 3> appellant claims a different matter.

 He   says that        the   complaint does not meet ...the ..statutory

 re qui rement s Jge@3jjg#j3jg^^

 ^^^£MM^M^^BM^M^^£.fjjigggf;"nor-'^o'nt:tede^^^
 the dignity of .the .State,". ^Appe.l.lan-t/*s^rel.i:a-nG-e.-^Qn-,t..Ee^s,s

 Code,.pf. ,QrJj^nal^Ex^^                                              •    JiB

 does.- act       appear J[^^^^^^—- d4,ffer^ence;,^betw.e.eja^w.:an

 iridactment^Qr^i^^

 r.r im j a^Uafe^c!gM^^^£iy^a^e^ffl^a^^^

         T^y^.q, Cnrlf* of Criminal Procedure, Art. 15.04 defines^
 a "complaint."          If an affidavit before the magistrate or

 district or county attorney charges the commission of an

 offense     it   is   called a    "complaint."       Article      15.05   says

 that a complaint shall be sufficient,                 without      regard to

 form,    if it has these substantial requisites




                                        18                                   fll
                                                                            Jwt
      1.   It must state the name of the accused, if
      known, and if not known, must give some reasonably
      definite description of him.                                      A

      2.     It must    show that the accused has        committed
      some offense against the laws of the State, either
      directly or that the affiant n^^q&wk^^sms^©^ .
      befeJ£ev||gSii||^^
      QQm§j^fe@d^^B^^^^J|yii: -• *

      3.   It must state the time and place of the
      commission of the offense, as definitely as can be
      done by the affiant.

      4.  It must be signed by the affiant by writing
      his name or affixing his mark.

 Thjiaarai^A^a^ifc




 Art'.'^1-5^5.

      Appellant's issue No. 6 should be overruled because it

 is multifarious,       and because appellant did not carry his

 burden of proof in the Franks Hearing.               The burden is on

 the defendant       to establish the allegation of perjury or

 reckless disregard of the truth in an affidavit.                He must

 do this by a preponderance of the evidence.               Only if the

 defendant    meets     that   burden,    is   the   affidavit's    false

 material    set     aside.    If   the   remaining    content     of   the

 affidavit still presents probable cause, the complaint or


                                    19



Jteb
                                                                                                Jl
 98 S. Ct. at 2676 (holding that affidavit must be voided only if remaining content is

 insufficient to support probable cause),, Regardihg-hrsieomplaint^tha           '       'davat

  the Oefenaan                                 636

  Thereof                 •"'"'.                                                     640
  Prose Motion to Dismiss Court-Appointed Counsel .
                                                                                         643
   Attorney's Brandon Sims, Kayla Alien                                     .
   Omitted Records •          .
                                                                                         663
   Pro Se Motion for Change ofVenue .
                                                                                         667

   Falsified Indictment                                                                   670
   ProSeDefendant'sMotiorvfor Bond Dismissal
                                                                                          672

   Pro Se Letter   .

   Pro se Defendant's Mot.on.or aF,anKs E^^^                                              674
   ^Motion Others Filed Went Unanswered .                                                 771
    Order to Release Medical Records       .
                                                                                          772
    State Commission on Judicial Conduct                       •       '
                                                                                           793
    State Commission on Judicial Conduct

                                                                                               Mw
                                                                                   AX(f)
VOLUME V                                                                    809
Pro Se Letter    .




ProSeDefeno^otton^^^^
State and Agents -       •     •                                            94q
Pro Se Letter .                                                              g46
 District Attorney's Discovery List                 -                        ^
 Notice of Filing of Medical Records .                                       948
 State's Sixth Amended Proposed Witness List                -                ^
 Notice ofFiling Business Records       .




  VOLUME VI


  -r^x^^^^^x^^- • 1017
  Pro Se Deft
  the Following      _



  April 20,2011 *                                                            1037
   District Attorney's Discovery List                                         ^^
   District Attorney's Discovery List       .                                 ^
   Motion to Quash Subpoenas .


   SroStS^rtnta^A^oence .                                       .   •   •
    Defendant's Motion in Limine .                                                iog6
    State's First Amended Motion in Limine              •                         ^
    State's SeventhAmendeAProposedWitness Ust .                 •       '         ^
    Arraignment-Felony .                                                          1063
    Pro Se Punishment Election .                •                                 1Q64
    Defense Attorney Strike List .                                                 iQ6g
    District Attorney Strike List .                                                1Q72
     Jury List                                                                        m
                                                                                       A^9D
                                                                               1073
ProSe-Motion-toQuash-lndictment' .
                                                                               1076
Motion^fopMaterial Witness Bontfcand^Order. .       •
Fourth Amended State's Intent to Introduce Extraneous Offenses in Case in      1079
Chief and in Punishment Phase of Trial
                                                                               1082
ProSeArte^lSMbttbfff^
                                                                               1085
Pro SeDefendanesMotion to Dismiss/Mistrial
                                                                               1087
Charge of the Court and Verdict.
                                                                                1092
Jury Communication .
                                                                                1093
Charge ofthe Court on Punishment and Verdict on Punishment        .
                                                                                1100
 Jury Communication .
                                                                                1101
 Jury Communication .
                                                                                1102
 Jury Communication .
                                                                                1103
 Judgment of Conviction by Jury
                                                                                1110
 Trial Court Certification of Defendants Right of Appeal
 Motion to Withdraw as Attorney of Record and Request for Appointment of         1111
 Counsel on Appeal and Order-
                                                                                 1112
 Notice of Appeal
                                                                                 1113
  Pauper's Oath .
                                                                                 1114
  Notice of Appointment.
                                                                                 1115
  Pro.Se Motion for NewTriai    .
                                                                                 1148
  Pro.Se Supplementto Motion forNew Trial
                                                                                 1152
  Pro Se Letter- Change of Address
                                                                                  1154
  Motion for Withdrawal ofCounsel and Order
                                                                                  1157
  SupplementalMotionfor-NewTrial
   Ret.ues.for Preparation ofReporter's Reeord and Designed o, Matters to be      1159
   Included and Order.     .
                                                                                  1162
   Receipt letter from Court ofAppeals
                                                                                  1164
   Writ of Attachment and Return
                                                                                      1165
   Judgment NISI.
                                                                                      1166
   Precept and Return
                                                                                      1167
   Correspondence from First Court of Appeals .
                                                                                             Mv
                                                                                        Aft*
W6?S^Mmdai^S^BifOTafi^ediatel3«sor^^r
             • .cL^c^isasfggfeS^^                                ____       .-;-"   1168 --



Pro Se Notice to the Court     .       •                                            1182
awaw**********^^                                           .-- --•-"•'•=• ---"-
Pro Se Notioeto Court ReporterT.R.A.P. Retirements r :_ ;;..:-; .:... :..:'•-••-^-°-
Bench Warrant and Return .                             ^ "^ ' oS


;"^^^       fehts       -- "       •       '.                                        11gg
 ^Petitionees Motion Under T.R.A.P* Suspension ofRuies - . ;.. .., :.... ,rv
 Sheriffs Certificate   .          •            *   - =-.--•-•- -•--..-—=            12Q3
 Clerk's Certificate               •




                                                                                            W h)
                                                                              Q>>
                                               ,«§«?«= up56™D1STRiCT COURT A?
                               \CA-
                                                      WTHE 56.. u;

THE STATE OF TEXAS                                             AUVESTONCOUHTV,TEXAS
                                                           G
      vs
TH0MAS*AYNEEtORENCE                                                          PAGE



 \HDEX

 VOLUME 1
                                                                                      10
  Title Page
                                                                                      11
  Index    •

   Caption                                                                            13


   indictment                                                                          19

    Docket Sheet ,                                                                     21

    Pauper's Oath.                                                                         22

     Statutory Magistrate- s Warning                                                       23

     Requestfor Counsel -                                                                  24


      No«ce of Appoint.                                                                     25

      Nottce of Appointment.                                                                28
                                       set andOrder.
       Motion for Substitution of Coun                                                          29

                                                                  Clduht^
         pro Se Letter ,                               m                                        30
                                      ^eGrand^^
           ^onteWitndrawesCounseiand                                                            33

                                                                                                 36

                                                                                                 37
           p&§S&
                                                                                                     64
                       rf^t'VMotto^to
                                                                                                     84
            Pfe^'
            Pr^e1Hgb;e3Ss>?OKH---—                                                                   91

                                                                                                      92


               ^^M^S#fd>»             _^ndfc^                                                             97

               P~^^^^u^^
               ^Produced^theSro .                       ^^se*&&>-- -                                      99

                    -^^n^Mdtionl              medtate^, . .
                                                                                                         Cb)
                                                                                                  M
                                                                                            110
RrojSe?Motionfor5FairandsSpeedy#fial
                                                                                            111

                                                                                            132

Pro Se Letter     .           •
                                                                                            136

Er^Sell&fOT^^                                                                               138

Pro Se Letter     .                   •
                                                                                            142
Criminal Docket Control Order
                                                                                            143

Agreed Discovery Order
                                                                                             145

 Pro Se Letter        .
                                                                                             164

Ip^S^^^^^^^
          Statement of Child Abuse Victim as to Jennifer Reece                               173
 Notice of State's Intent to Use
                                                                                             175
 State's Proposed Witness List
                                                           Offenses in Case in Chief and
 Notice ofState's intent toIntroduce Extraneous                                              177
 Punishment Phase
                                                                                              180
 Court Correspondence to Attorney Briggs               -
                                                                                              182

  Pro Se Letter           .
                                                                                              192
  State's Motion for Continuance
                                          and Request for Preferential Setting and Order.
                                                                                              195

                                                                                              202
  Court ofAppeals Memorandum Opinion
                                                                                              204
  f^Se^efeii»s^^
  Pro Se Defendant's Motion for Approval of Private Investigator in the                           222
  Above Styled Cause              .


  VOLUME 11
                                                                                                  224

   pj&SeiDlferltfj^^                                       *                                      259
   Pro Se Defendant's Motion for Approval of Expert Witness Funds .
                                                                                                  261
   Court of Appeals Correspondence
                                                                                                   262
   State's Motion for Release of Medical Information and Order.
                                                                                                   265
   State's Motion for Release of Medical Information and Order .
                                                                                                   268
    Inmate Response Letter
                                                                                                   289
    Notice of Filing Business - Medical Records .
                                                                                                   291
    State's Motion for Discovery of ExpertWitness Article 39.14(b) C.C.P.                                >.

                     ..and^harge) that one" Jerry'W^ Rucopli -'
        i i


                      on (or about) the                            *?*h                      day of                        October                                 iM&lljMpi, and before the making

                      and filing o£,this compkinLin Justice of Peace Precinct No.                                                                     k                 '-of.
                      County, State of Texas, did then and there unlawfully and wilfully °_____——-—^——                                                                                                             . A. -., .
                                                            '"' V- -ftanfir^f-ifierbin-"...,• ;.. i . . '--—^. _••                                            1 'S • ^r-j - .".A '"'-Z. '.'.- •




                                                                    ^^^^P^rSS^s..
                                                                                                                                         r-7^1.^^. y^Pa                                             asa-JZfe: ^
                                                                                                                                                                        October
        11                                                                                                                                                                                                   :??     "ksAA.i":A....-b.
                                         .0CT.15.1SI2                                                                            ,;^^wiA"^
                                    A..," HUcaL.T-icq.AaT,,
                                  Tjj3»r!ct Courf^-Si-iffcountV: To                                                          '??•••' "'^ul^oiie^aci|P|e^
                                                                                    epaty
                                                                                                                                                        '•-Be-11 •:" •' ;'! """•->,"."                 •"' P>unty» Texas.
                      •-also' "allege, knoWingly" when necessary.




                         ,         "... ; ; •-.         \.zz*~-:.               f        •.-••••...,       *-•     ••--£             I * _', ' A -*t' -••^-   •-   '             .   . .   ,..'..   .. *,   * ?^   .'.-' \>



                                                                                                          •,\lv..V.- ;••




                                                                                                  Vl"
                             -V                                                                                                                                                                                               A\
                                                                                                                                                              < ••* %   -.   '
                                                  •-'•>«•     "A          >i*       «'" "



                                                                                                       -ftv.            A>r *:J* :•:'.& i^3..A:A:   .♦*,*,.,                                                 •..;.,• ^ %/*j.'s;X

                    <--_**          -^                                                                               ,. % ^-:-AmO^^ i AA':uil A-A,-A- \
\. •••>;'-.»;•'».
                                                                                                   MO
                                                                                      •&tdiK- j£ln->


                                                                              imm-! ,,


 OFFENSE CHARGE: fk,i^e L> iQ^k/w /(S»Ut lj± T*&)
 CODl:                         ~   "~ ~              ~t~

 MAG N0:            1SL,_ AfcJ2i<- .                             COUNTY COURT CASE NO;



         Before me the undersigned authority on this day personally appeared affiant, who, after
being by me duly sworn on oath deposes and says that afTiaiubas%oMlri^®iSt®fed^iO£a»d<
doesjlielievGahat in the County of Bexar and the State ofTexas, and before the making and filing ofthis
complaint, on the _ 5*\ day of       _$£Ci' _          •200 "^
    &> °Ie2.^. 'l^ ^                         ._. committed the offense of
J.5A ju. / <=- _^p T-^&jy (,&k£ k^ 2Rk1.                   ...           •aaaiusdifecb.            iityp't}
the Slate.




                                                             Affiant
                                                                       EaJ^ foS
SWORN TO AND SUBSCRIBED before me by the Affiant, a credible person, on this
day of       uav 0a 11 2007
             MAY       onrtt                 . 200     .



                                                                                      cOuUL
                                                                               etfgfis@'}~* day of          A/>^/ /              ,
 20 in at crfjo o'clock _a M., by arresting the within named
 FLORENCE/THOMAS W                      , the J;?*"* day of ,\^>/~, /
30 tO , at (hsJ*C££Js^ (*•*..,JiL      / in C&JxzxIo* County, Texas
and *Taking his bond, *piacihg him in jail at i'jC-/*/•*%••£»* C-oi^-^L
         I actually and necessarily traveled *—^~__ miles in the service
of this writ, in addition to any other mileage I may have traveled
Lr. the service of other process in this cause during the same trip..

FEES :
 Making Arrest ..:?_                                                        _Constable/Sheriff
 iXileaoe        5_
 Taking Bond ...-$"                                                                   County, Texas
 Ccir.mitment             $_
 Release                  S             by O^ ]• •"VV(-?                                           _Ettguuy
                                                                                                    Orf.z. #jD.efieadan*isiii.l?mary^-?.Afth ,- £,,010 .
    14              Q-.. .-...- Does-'.:;tha^^afi#i^a^4£fe^
    15       .ws-xxa-n-t-••s-t-a-t-es~;:t^.;fe^s^                                        y
    16


    17                             ^'MS^cAL^^
    18       °^Dif-eMst^^e^eife#i^e;H          We have a proper indictment" here .
 19
             And the ,.s;gyA           ^h^g^r^a^i -i s not relevant.
 20
                                   THE DEFENDANT:             Your Honor,   that's the
 21          only way —

 22                                MS. ALLEN:          And the indictment complies
 23          with   the   law.

 24
                                   THE. DEFENDANT: • That |_s_Xh^,.on1y. .way,_ zhe
 25




A%t                                                                                      M
                                                                                                          176



     1     cause for af.fida-vit for warrant issued, for my arrest.
     2
                                  THE COURT:       If I'm not mistaken, when the
     3
         .State read the indictment, she finished with the words,
     4     "In the name and by the authority of the State of
     5
           Texas."         That's the indictment.              ^T-hdss^fei^s^^l^fa^g^^a^v-lxfe--^
     6
                  L*a«fe;feg and arrest warrant.           Different.
     7
                                 THE DEFENDANT:- ^This d's;^-docume-nt-that
     8


     9
          •w,a-sn <"F-"r     ;sti-moi?y. xx-gm ^o-H0t'hLe:ri--wxtjn-e-'sses-!.o.r -nobody .
 10       .The-Stafe^gn^^
 11
          poMce T^yoTrevbD, ,tfie-jBrana* Jury -tov get-nte Indict ed»« your
 12


13                                     SOUR7' •   R . Sfttr.

14               Q.        (a^T#E-«&EPBN-I)Ai^^                                                      e_
15        ob;,- .tfeex^fema^Mm?

16
                                MS-.-j;..ALLEN     _ -_        2,s>;a»is;eib,e-v-a»n'C,e>-^youx..,
17       i.fipn.O£&J

18


19
                              ,-,Nojs^eiLe^ak        ! ^ev-aiVLgng.
20                              T^tfE^DWENDANT^^^

21
          submit ^^hxbxt^ot^:^^
22
         P^teab^eMc'au=s;exa
      i   the-re?,':^.&hea*.^a>yA;     i   ,•                  xcum-en-t-r^And it'-s
      2   •agcgelSegsgBfe..
      3                          THE.O:AI®T^^ak^^

      4   nowAi               ( , frdimg f-ox-;y,ou to take your break for the"
   5      day.      I wiliL;se,ev;,ygu tpmpxxow^at 9;:.00 oAcLock-^ -Plea-s=e
      6   r ememb-exf^o%s<^^^                            c a"s eA

  7
                                 (Open court, Defendant present, no Jury)
   8                             MR. FLEMING:      For the Court, Mr. Phillip
      9   Chacko, C-h-a-c-k-o, is here from UTMB with records that
 10       we —     that the defense, that Mr. Florence has subpoenaed
 11       for the time period regarding Amber Guarnelo*s stay or
 12       hospitalization at UTMB.               He's brought those records
 13       here today by affidavit.               And the Court has ordered
 1.4      Mr.    Chacko to turn those over to the defense.
 15
                                 THE COURT:      Okay.      There's really two
 16       issues here.           One issue is I'm thinking the HIPAA
 17
          requirement that I order UTMB to turn the documents
 18
          over.      I'm guessing that that's the first thing that
 19       you're asking; is that right, sir?
 20                              MR.   CHACKO:    Yes,    it is.

 21
                                 THE COURT:      In regard to that, yes, I'm
 22
          ordering you to release those records to the Defendant,
 23
          But what's even more in question at this particular time
 24
          now, is there any objection to the authentication of
 25       these   records?
                      EVIDENCE/PROPERTY RECEIP

     I, THOMAS WAYNE FLORENCE, ACKNOWLEDGE

     RECEIPT OF THE FOLLOWING ITEM/S OF EVIDENCE/PROPERTY FROM

     BRANDON SIMS, ASSISTANT DISTRICT ATTORNEY, WITH THE GALVESTON

     COUNTY DISTRICT ATTORNEY'S OFFICE.



     DATE       5-25-11

     CA©SE^©MBER5^i0€Rl?S7«-State vs Thomas Wayne Florence



     NAME OF RECEIVING AGENCY: GPD

     ITEM/S:

 */ Thomas Wayne Florence's sexual assault Indictment w/ 2enhancements
 «/ 1 DVD: video recorded statements from Robbie Guarnelo

     Waiver of Search from Amber Guarnelo

t/   Affidavitsands§empkaH|^ii3toestiWan^nl„

j/^Warrant^forfATrresto
     Affidavifcfor-Searcfo^^
     (signedfandiuiisigneidacopy)


        •      sfeGareia
                  o -Date50#Rep0it®s2¥i*O
                  o ^Date~o#Rep6rtF4*l'0-10


      . • ,i      • insjgnr-
                  •9 AiDateir reppit2-26r10
                                                                                          JHg
                  qi«f«Date-@lfeppr

    Offense Reports/Supplements for GPD Case #'s:

    10—1005
    y ".....Morse.
              Q^J3at&nfeRepnrtite4=e9
          o -=fe^0yd-
                 o^lai^^RepaiststerO--

    2010-1231
     y» B.South/K.Miller
                  o   Date of report 1-5-10
          • -*feGatcia
                  o"-BateiofiReport#-55tO
                  ioyd-"
          ,o««--Js-Loyd™
                  b•^^ate?6^RepolPP8^f0[3,-"'

    2010^6463
     ~t*      C. Doucette
                  o   Date of Report 1-27-10
          a   ©slSapeia"
/                 o»-Dj%ofcRepj^^^
                  o   Date of Report 2-2-10 (includes letter from Amber Guarnelo to her
                      parents)

    1010512135*
          •   JSsiDoncettfr
                ,«O53|i^i^rep0rt^:I;9siO

               *~"©Sate^repoif®safel0._
    *20iOU37f4;


                 ' o'r;©ate^E*elp0it?'2*Ta7s?I.O*
    **•           o «Datei!6£Riports2=26sl0



    2010-20649
          •   G;"Garcia
,                 6   Date of report 3-27-10
<
    2010-10125
      t •     3 photos
        •     Reportfrom C. Teague on 2-12-10




                                                                                           M    569
                                                                                                        >'3
                      o Report from E. Garcia on 2-12-10
                      •      Report from C. Palmer on 2-16-10
                      •      Report from D Fillmore on 3-24-10

          2010-21249
                      •••-
                         Report from Sgt. KiWeems on 3r27-10
                      •  Report from AiMohammud on 3-27-10
                      «  Report from C. Garcia on 3-27-10
                      •  Report from A. Chapman on 3-27-10
                      ♦-■-One (1) In Gar Video ofdefendant evading arrest/being arrested on 3-27-2010
                      • Six (6) photos of defendant's injuries when apprehended on 3-27-10

          Amber Guarnelo Waiver of Search from 1-4-10

          Paperwork from UNT Center for Human Identification Forensic Laboratory (case #11-
          0120)
    . ^/» Chain of Custody
                  \j*        Evidence log-in form
                  ^          Forensic evidence submission form
              ,/• Evidence documentation worksheet
                  «•»        STR data concordance checklist
              j • Parentage calculations Part I and Part II
              i/ji Pictures
              ~Y»            Forensic case log sheet
                  / •        Chelex DNA extraction; blood, stains and other bio material
                      •      Quantifier duo worksheet
              / • STR Amplification worksheet
              /       •      Forensic DNA report from February 28,2011
          y •                LetterfromThomas Wayne Florence to Mr. and Mrs. Guarnelo (dated3-14-11)

/         Five(5) blackand whitephotos of Jada Guarnelo [color photoswill be used at trial and
          will be provided upon request]

          T-Mobile Telephone Records (number registered to Robbie Guarnelo)

    e/Ben Taub Hospital Medical records (Re: Amber Guarnelo)
          UTMB HospitalMedical Records(Re: Amber Guarnelo)


          State's Motions:
    «.                •      Notice of filing business-medical records (Ben Taub Hospital)
                      •


                      •      Notice of filing-business-medical records (UTMB)
         <-           •
                      •      State's motion for discovery of expert witness




                                                                                                        M     570
    f"» State's first amended proposed witness list
             (a State's second amended proposed witness list
\     «   State's first amended state's intent to introduce extraneous offenses in case in
          chief and in punishment phase of trial

            •"o   Second amended state's intent to introduce extraneous offenses in case in
                  chiefand in punishment phase of trial

            n CcttRtjr* Texas, de
                                                                                                               JP #1
.^srery certify Wia-e the foregoing is a                                                                       TRH 89179282644 7>.C?1
true ar.d correct copy of the original                        THE STATE OF TEXAS                               SID STX03572081

record, new in my lawful custody and                                                                           JAIL
filed in this office en the                   day
Cf                      , 2C        , witness my                   THOMAS WAXNE FLORENCE

official    har.d     sv.d    seal     cf     this
*»v .-*                         . 20          .
                                                                 INDICTMENT
                                                               SEXUAL ASSAULT OF A CHILD
                                                                 WITH TWO ENHANCEMENTS
                                                                                                             BOND SET ON.   l|\^\|P
                                                     BOND                                     P0O_
                                                                                    *V

                                                                                                      Juds




LATONIA D. WILSON,
DISTRICT CLERK,
GALVESTON COUNTY, TEXAS



                                                     Cl*r* 'District Caort, 0*lVMtOfl Ceonty. T**»»
                                ,    Deputy




                                                                                       Deputy
                                                                                Jt\+
In the Name and by Authority of the State of Texas:
       THE CRAMD JURORS for the County of dalvoston, Jtate aforesaid, -iuly
onanized as Such at the JULY Teem, A.D., 2010, of the District Court of aaid
County, 122*10 Judicial District of Toxas, upon their oaths in nald Court
present that THpMAS-WAXNE-FLORBNCE ..on-or^boUt^tnir^^                          >




sexuvste'o^ga n?y

                                FIRST ENHANCEMENT

        And it is further presented in and to said Court that, prior to the
commission of the aforesaid offense (hereafter-styled the primary offense),
on the 24,n day of December, 1986, in cause number B56R084.0^n the 10,n
Judicial District Court of Galveston County, Texas,^bhe defendant was
convicted of the felony offense of Burglary of a Vehicle, •
                                SECOND ENHANCEMENT
                                                       • a



        And it is further presented in and to said Cogjjt that, prior to the
commission of the primary offense, and after the conviction in cause number
 35CR0840 was final, the defendant committed the felony offense of Possession
 of a Controlled Substance, to-wit: Cocaine and was convicted on the 19cn day
 of February, 1993, in cause number 91CR0155 in the 122"" Judicial District
 Court of Galveston County, Texas,



 against the peace and dignity of the State.


                                           it r i w r z ^
                                 Foreperson of trie'Grand Jury




                                                                                    Jtf
                                                                       J'a "                     ' re* fe4-me-.-.: -I;. j'Ust-

24 .vr$nemter^sxk±i                 -S^yS^^^^TPl^T^^t                         .'."r^_l±S±
25
                                                                                            148




 1          Q.      But right here on March, we go back here, go back

 2     tO ^-2 0'10',:' -^0i^^A       -•&r&j^^®:§5fi • -.^^^-h^'^~S'if^^0^^^^^^^^^&^^y;':

 3     ^mm^me^W^&Wm^&im^ma^f^m.                        ¥ou^k*n-ow-"'fel   . zomtt^i^m:
 4     a,.l2n@|g£yi^

 5    -y^»##^#e^#rt . . .

 6          A?Sife^@k^y>?:5^¥f^

 7    g^Epgpre^tw*^                                                that's what you are

 8     telling me.          A«s5fe»j8^^

 9   ^?2~4-2{4.     i-W^ils^s^^^

10


11     t-ime./.^s       j£^i^^^^^^^^g^g#fe^^i£^^S^^
12    •gggjUjkd ;     Lrgsggagsfetesgfiaa&jfeisHaie.

13


14


15


16    feformati-on -'almost a. month'Tn 'advance- whete'                             zfe^

17    y©u,..kno:w,-.my-name.;i. you .'.-know;-™my .'-address"

18         A.       Okay.     Well, March 24th, at the time,                 if I

19    document a report and it gets referred to C... I. D. for

20    investigation, further investigation follow up, it's out

21    of my hands as far as this investigation.                           I cannot say,

22    well, okay, I am taking you over to the side and

23    question you about what happened.                          A detective is

24    assigned to that case, and she is in charge of it. stSmz-

25    rt: would .have been_upJ to 'thej detective "to :quesmWo^i^yd#i;
                                                                                       Jsfh                49




 1   ^-^©rrat^^^a^rJ^^

 2        Q^^^^s^tea'S^

 3   . rji^a|5i^^

 4    stat irng^^h^m^^mS^mmsim^^^^Q^^. .-Jsa«?i§                                   2^ 2<6»-"--2 A2#?;-j.feut ,
           tj^tHSA-f--- *J   -



 5    wjh^^ry£>B?!Ppfe^m^^

 6    Galvest©n«'GouTrty--*3"H-11"r"yo-a',,'d'on'J fe-«~- -and»yeu"--'-say;'-"You

 7   'JE^ai^a^e^fid^^                                  "you g •         '      'ifor.mati.on-.- -—You

 8   slcirAli'KeAAr^gft%                                  --

 9                                Wf?f-^%A-M£'B E1*17 r:r" :Obj e c t i oriA""-ask e d- - an d



11                                ^ffE»s@iC^^^                                             '"'

12        Q.                 (By the Defendant) So m&i$&®%^S&£&&&am. would have

13   been the detective actually,                              since she was assigned to

14    the case, I guess,                      March.       She was -- first,               say,

15   and then Mpa&xsfe*?                  She would have been the proper one

16   doing the investigation you are saying?

17        A.             Yes,     sir

18                                THE DEFENDANT:               Pass the witness at this

19   time,           Your        Honor.

20                                THE COURT:          Okay.       State?

21                                MR.    CAMPBELL:         Thank you,          Your Honor.

22                                        CROSS-EXAMINATION

23   BY   MR.            CAMPBELL:


24        .§«. - • O f f-i c e r; -~ j^st^^^^

25   i.nve st*g-ato'r**b^^




                                                                                                 -M
 1   it-hese two- girls together on;, this^^daite^and txme^V.,

 2                             ,.MR.;~,.HA-LL.,:,,r,,^,.T;h.en . i          'heaisay because he

 3    d^e'sfii^^                    't1i%^^S®d^®e§#r^& y*~*hJev'*TS^fe»B.eil-...sii'-n

15    front -of :the,-poM^ee^'depattmerit.• ~-'-H-e-up|iGke:'.#^toeOTJSu,pA

16    fThat' s.;,.al:r^a^                                            ,. it.^th^-^^toe^®iY
17    pj>i:n%.,, —

18                                 THE COURT:            So,     what's the conflict?

19                                 THE   DEFENDANT:              He's -saying -- what I'm

20    fixing to establish, your—Honor,' is--they ~saying, t-hat

21    tebe* tand Lisa is .supposed .to have .befiia^t.o^gte'th-e^jat,

22    l#rvP              Lock.*,

23                                 THE   COURT:          Okay.

24                                 THE DEFENDANT:                And on my police report

25    it's        showing —
                                                                                               44




 1                         THE COURT:        On this document right here.

 2                         SyaEMaEEENBANT.;:-,A^©«^

 3     report signed —         1-398-6 signed by h&&^^Amfm^m^^f.-

 4     i£n.cAide;nv^                                 r e d" -o n v2 - 2 6~ a.t - 11^30,

 5    ,-wh-itto^ks^gi&Mz^t^z^                           /^T-h i s -d   : tie who le -

 6   ' ^th-dri^ afeo,ut:j~th"e.AL;i sa^drrcdrdenti^suppO'S

 7    •wi'thAher.father right here a t- 41 : 0 0 o ' c lock ; _ And^ Amber

 8     suppqsed'to have "been a witness,, yo]^^<^.pm^^^^cp:~k^

 9     whattthis, document say.

10                         MR-.—•HALL^-i.^.W.h.a-t,....he.,: s. trying ..,to. say,_ Judge,

11 " d-is^tteafts^fr^^^
12     fees^iisepiyj^



14     isdyaa^k&tria^                                                                      '

15     feel's vtr-ying            i-.n--^s^'a'l-r-eady^.inr.e-vid:e:n';GeA

16                         THE-,r0URT:: , Oka.yi.,;.-,,S,ov^.what,:i.5,,yQU.r

17     request?

18                         THE DEFENDANT:          '^^^a^SXSMmi&s^^^^^^an^—
19     i±J        _i -        e:, -T^e-yJ.JC-e3^^yi.-ng.iO,nJ',or.>atK>u         ^1 'can

20     pxgpzgta^^                                              They saying that --
21                         THE COURT:        What    is your request?

22                         THE DEFENDANT:           That I can use this here,

23     your Honor.        Ain't saying nothing about the Lisa

24     incident.                                                             i

25                         THE COURT:        Okay.       So,    you want to




                                                                                                    a
                                                                                      Jd
                                                                                                                    9 l^~


 1    Lisa's mistaken                   that Ms.   Loyd wasn ' t           the   one pic ked                 her


 2    up?        It wasn't you that actually p icked her up?                                          :




 3             A.       What       I'm testifying to is               I    don't     know       what          her


 4    state of mind was                   or how she testified yesterday                         •




 5    But    I      know     for    a    fact   that    when    we    picked her up by                       Taco



 6    Bell on Broadway that ^^^^^.^t^k^^W^^^^^^^^- >ih,e.;r.-;

 7   ^.atr.Ofl5,?aup,fets.

 8             ^I^SSSS^^^^^^^^S^^^W^^^^^^^^- ^teagssmm^m&m§S?khM^3it

 9    call i-nfg^^s^aAloaS^M^P^^^o^eWc€'^i?6:r rfct?
10           ^ssgaS^^s^AsSr^

11             ©sssss^rrteysQ^                                       **«s tated "- y "6 u": k hvo&-"my

12    n^s^^^iBi^^^s^ms^^^^t$^^^^^:^r^^§ ;'Wno!®a^i&it?h3^;'sAL=s-"ifehait
13   S3«6SS©SfeSs

14          t A^ss^wSa^^e^^

15             Q^-.^Yo-ur. original: •F©li.ee*."--R,e^r>ort- -lSSSS.

16             A.       If    I    can    review what part            you're talkin g about,

17    I'll       tell      you.                                              -




18             Q.       Page       --

19                                 THE COURT:          Why don' t          you   come     up         and     show


20    it    to      him?


21                                 THE    DEFENDANT:        Yes,          sir.


22             A.       (CONTINUING)             Yes,    sir.

23          - O/V       (BY THE- -DEFENDANT')""           Y©u'~s t a t e           crime was?


24   ipep,ar,ted-to you-.on,s-                                       p^psstyi^d,.Ate©::- ¥*>p.~ tte:an^xt'.-.

25   cJay>;i                  i •-' -AT.'ha            i youjjgo                     D'-osma-jtefi'.o.m;;-
                                                                                                                 L
  l


  2


  3             #^f^^Sh^l^aa^g«M^eveT^-'-snippos'ed to- havel"occurred'?1

  4


• 5                                          '    -]     -Sne-vefeesme                                 zgot

  6     pj-nbaM'jl'                                    '-n. KsJ^^ygspswa^^^

 7      h-oiu^^y^sasap^^^^sae^ia^n                       -ddtna^jiie m^MSmm^l^ms^^oj^Mng;,:.

  8


  9    '••..,a Mr^g^^i^yi'--         .ir^iried^ijiGi^^

10      s.ihee-.it-':-s.','ip.B.v;ab.q.^t^on-.e" of>...th.o"se.-,,da'ys'?i

11              A.       I can explain that.                        The information I received

12      was     -- what          I did was               document       an incident         report   or    a

13      case report and referred it to CID for follow-up.                                              The

14      information              I    had        on Mr.     Florence       was      not   the best

15      information.                  The        address      I   had   was    at


16     215     --     I believe             it was         Market;        At   the    time    I did not

17     know he was staying on 50th or 5lst Street,                                           whatever his

18     address is               on that location.                   But    I got all the

19     information I needed for the report and then referred it

20     to CID for follow-up by a detective.                                         That >

21     investigation,-;•-the.Eve.^s^B'-cepsS'aM'dvIf:                                  "-            ^sDwetstd

22     'b'ef.Afo^li^wed'/i^A'Aec                 I ^x^u-jbd^;      .dp, .-»thAt^o,avJny'---9KP^§''t **$•

23     p.a*t ro-1 *leu-e 1-.

24              vQ;-;£Si*2S.o                    - ^s^.4i^^taat-:>y^»^

25    .»n oteo^^A^iR^b^?^
 2    ^"fefeiieierS^^tecHfeg'Ot^p'ri'C              ^^^a--gun-.-— ^Thd^^itir'^tf"fae                                iy
 5     p.rgp.etll,y,v.d..n.ve.stdgated"''ah^                         to the right people

 6     Hho.j;jc.aniido the*;>p roper:--d n ve s t i g a-ti on.^.o.n^^thds^ •••

 7             Q.          Mr.- Garcia,, .after a crime,              you see someone in

 8     the- store robbing somebody or doing —                                committing a

 9     crime,            let's say,      for instance,          hypothetically I tell

10     you that ..Willie beat me up.                        I want to file charges.

11     What-stepss- you going to do?

12             A.          Well,   I'm going to investigate it.                             I'm going

13     to see- if there's any witnesses, involved.                                       I'm going to

14.    listen to what his;side of the story is.                                      I'm going to

1.5    note that if he has any injuries:                             All this will be

16     documented.


17                          I may, review it with another- police ..officer or

18     a sergeant: and say,-..,."Look.                    Here:' s the information I
               '•'--•-      "        s                         " "   --   ...',.
19     have.             I have a witness and they 'saw this'"."'""" What we

20     would' do is ''f ile "a warrant •for, hi's.... airest..                           «$sH»aifafei#s

21     in/z.est-j-.f?t-i&r.--here,s-there.i-s .a..difiere_nt .procedure .

22             j2^j~--^orU^o4^i:naarrds:--a r.te:s.t:v.m'e;:>.
                                                                                                        52—




 1


 2            Cpr* % rAfter^char^dng-me^with1 force'ab -                                 ape after jp^u

 3   f-dri-d£© u-t At.hd^'-rn'-f.or-ma-td-Qrn.?

 4            A.          It had to be investigated.                          It's not fair to

 5   you if I just go and arrest you.                                    We want to document

 6   and investigate everything to find facts of the case.

 7   And it takes time.                        There's procedures.

 8            Q.          So,   it take,             what,    two months,           three months?

 9            A.          I did what was necessary on patrol level and

10   referred it to CID.                        CID takes up the investigation

11   then.           And then there are steps that have to be

12   followed,             statements taken,                  tests run,          that -- steps

13   have to be followed.                            ^^e£J^^-i^p^mye^lA£ie..

14           @^;vh;-j et»t
 1   ^^KSjnsaiEesyip;^                                                                ce_
 2    re-port-was-.-issued.-.on -this•.da.te„i_:_ina'.am?

 3         A*w«is«l^*^a^


 4         ©si^^ii|^3?®a^y.:g2i6!i>is^^,    you know,          which date,      you know,

 5    this police report was issued from the Galveston Police

 6   Department?

 7         A. .-/Jliglit,. ~^

 8   Vdt •,wa;:sj.geneEatigd^g^^Eebji^a r.yrA2-.6;",* • 2-0ii 0 .
                                                                                            V
 9         Q,     Okay,    ma'am.        This police report M®32&mMifl&;&~3, that

10   you posted investigator regarding a Lisa Ruiz who was

11   sexually assaulted by her father?

12                        MR.    CAMPBELL:        Objection.           This is outside

13   the scope of the hearing.                    This is hot contained within

14   the    affidavit       at    all.


15                        THE DEFENDANT:           I object because --

16                        THE    COURT:     Is    it    in    the    affidavit?       That's

17   the issue you are attacking, the affidavit.                               Is that --

18                        THE DEFENDANT:           No,       sir,    Your Honor.

19                        THE COURT:        Then that is outside the scope

20   of    the    affidavit.


21                        THE DEFENDANT:           Yes,       sir.

22                        THE    COURT:     This       would be       cross-examination

23   at    some   other     time    for    some    other       reason.


24                        THE DEFENDANT:           All right.           Yes,   sir.

25   Because basically I only need -- well,                            can I just -- I
                                                                                          _JK(7)Us
  1                           MR.    CAMPBELL:           Your Honor,              I object On his

  2    side     bar.


  3                           THE    COURT:         Here        is   the    deal:        This   is         a


  4   period of time not to argue about your case.                                           Just ask

  5    the questions.                You have got a witness.                         Don't waste

  6   your time on me when you have got a witness sitting

  7   right here.

  8                           THE DEFENDANT:               Yes,        sir.

  9        Q.     Miss Johnson,                did you actually -- you say you

10    learned from reading that police report number that

11    Applicant did not return home from the 19th to -- what

12    day it was,             from the 19th she was supposed to run away,

13    from February 19                   to whaJL?

14         A.     I just have in, the No.                       1 paragraph that she

15    that a report was made on February 19th.

16         ©A-^^£utr yo;U^S'a#d^

17    2*0 lA-;i3f9<8?6*^a^dfe.yc>u^                                                                  <.<

18    ia^e^E^atdson^rega-rdi^^

19    s^aicfeyqiusggtfa^

2 0   the'-               --.-repo-fA-      - i^'-s-Kev-"Ka-nia-wajyi..           r-eb^g}rar^y^l->9^th,-1<3,

21    $*h.en;         _                  '"fj. &•' "Cou-rt^v^toihwiienak

22       - A,..* - "February ,.26th-,~."2 010'-

23        ,0.. . ,Ar-          u    sure?

24         A. _,That.'s what AD. have"'-'.                  |        af'f "i'da-v'i't.    'Th^tllfsSw.-hen

25    I Jbe     - -       i   )Ived^.in^t&is^case^;-was -Febru                                   \             Q"l(h
 1         Q.     Yes,    ma'am.

 2         A.     Okay.        :M!?l*?p=^kIfa'TP^

 3   ^ma^e-'Fei^ru'ary^l^tiv.'••'           ~ i t wa'srAassd^r^dpufere^^

 4   JS^mjSr^ajEeiz.            I don't know regarding this police
 5   report,       the runaway report,                when she was recovered.'!*S*

 6   dam-have^ per^so^

 7   Fefaru.a.r.y,^;2.6-t -     "    -r '            '.stirk^QWjsi.-.       - " ;,gar.dirnc
                                                                                                V

 8         3-r-ep'oxfe or- sot.

 9                        THE       DEFENDANT:        I    call    Mr.   Alemendarez


10   later,       Your Honor.               To move on,      a    warrant was      issued for

11   Miss Guarnello by Kathryn Lanah from Juvenile Justice

12   Department on orders of parole officer,                              probation

13   officer,       Sean Parish.               That was on 2/19.            And according

14   to,    like I said,            police report 1213,                 she was arrested on

15   this date.               And this is the date,               you know,      to show

16   that it was impossible for her to basically be on the

17   run from 2/19 to 2/26/10,                      the date of this crime.                   So,

18   you know,        she was supposed to be gone on an eight-day

19   run.        So that's why it's highly relevant to show that if

20   she was arrested on 2/22/10,                         it is impossible for her to

21   be on the run from 2/19/10 to the date of this offense,

22   this       crime.


23                        MR.    CAMPBELL:           Your Honor,          I object to him

24   testifying.

25                        THE COURT:             Just what's your question?




                                                                              Ja- !!ye'sr         .     >?, "f .ma '-am

23


24


25   wer£tegtoW©K?#^M'0,S5^
                                                                         -XA           51




 1        ^^feg2?A-c:e'o.ii;d:a?h-g                               '      repojst^_ :yes.

 2                         THE DEFENDANT:         Well,    Your Honor,     I   would

 3   like to go to *Eix^di^it'SNlf¥*i}^

 4


 5                         THE COURT:       Okay.

 6                         THE DEFENDANT:         cT^avje^gia&iamaa^

 7   ©s§spt»S>^§S«fe

 8   so we will be able the understand it better.                          On this

 9   police report             --

10                         THE COURT:       No argument.         Ask questions.

11                         THE DEFENDANT:         May I approach,        Your Honor,

12   to   show     her.


13                         THE COURT:       Well,   only if you think she

14   knows anything about that.                   That's a report that, unless

15   I am mistaken,             she doesn't know anything about.

16                         THE DEFENDANT:         But it's the report where

17   she did an investigation.

18                         THE COURT:       Is that the hospital record that

19   you are about to show her?

20                         THE DEFENDANT:         Yes,    sir,   where   it said,

21   Your Honor,          •tefe4-shs-tee'p^*^^^

22


23


24   th<*H*g?isfes .

25                        THE COURT:        I know where your argument is




                                                                      •JsdR
 1    going,                but it's not time for argument;                 it's time to ask

 2    questions.

 3    ..._.,
                 QI=_^,^Q3iy^the^ner£em
               '. ,4——"""
                        ••*       .--!•             •."....'                                 —


 4   J3j|^Ta;ub;^e;s§>i^^^

 5    tlie~-i-4th -or- February the 22nd and prior to - -                            let-me

 6   .r,epfaraS«''Hit;:v^AA^^                                         d#^Md^;S'^Gua;rhei^f

 7    ever go to :Beri ATaul? pri;o;rv;;,tOL^/^£i/JL0^^

 8    treatmeati?


 9              A:-^"^;Afea5S^AnokkA^

10               Q-__i:.Qji^Z2JLZ4Ja^                             ^•P^P^-fe0.^--^^*
11   officj|^,Jjao^

12    inyagtigiatisoxiiPii

13                              MR.   CAMPBELL:           Your Honor,       I would object

II   She already said she had no relevant knowledge

15                              THE   COURT:    I    will      let   her    answer   the


16   question.

17              A»^- I_" will ^fiaY£..:-to refr                .-his' -report..-- ^ ,1 ,dot'-t
18   recall whi-cJa offieer-j.or--who transported:                            -   t-o^Beri^T^ub

AS   ^o.na^ebiii^^y3^S^4SiS^s£fel^)5
                                                                                                   /
20              Q.          (By the Defendant)       Weidr^.d^p4n^^@Uir

21   ia^e'Stdaatipn in..crJh.i.s^

22   .^^^sof^t^^a ",.",.,-,                cc                           -         • c.t^Attorney

23   tefrat^mbe%-Guar-nei£;,.^

24   t^i:sj^hg3ges?;dat^

25   uncover 'any^doci i                  : ,f rpm-.2./2 6.?
                                                                                      53




  1       ,.A_.__-Jiajyr^^«^

  2   date.?,.- :-rAis-:-thatAwRat'"•the-'questdon -ds?

  3       "Qjv. ..:i*>ami^^

  4   d^xesitedtg^*^®^

  5   '^.ajuJ3i*#eie##s ?

  6


  7        Q. _-_fio^Jaavk, ,did^y.o.u-Jcaao^;-Ambe%GMr.nelp.^went,±p^.the

  8   hOSjyjjaiia^h.^

  9      ,...,A^ggs.X^^

10    g^id^e^epfiEt.
11         Q,. ....SO -yoAia. a.re.^ba^i^aisky^^in^^

12    ...salid^agdgnio^

13    -saiida^Qii^T;arab^®s;pd^a^^^

2 0   adm*3&dst£a^diaifc^^

21    ^eiguit;4wa>sj*pj),sitilv^;..     My.jr.q.ue^                     '   -   -hen..,
22    ghatJtob^.'rx.Gira; :           - •.lialiy_Iw.et •._- b'-'trreShospital
23


24


.25   -she-, did-;
                                                                                              56




 1    statest;hat^s-he"'-diad--;se:x" wi th-- me'- ••'0;rr^2^^^^Q^3^B^^^^^^o^
     Si



 2   this-ninci " i |2-£hjttft;y©u*Keh^

 3        , B&..s?a&Ke:SiA-:

 4                              THE DEFENDANT:         Yo^m^Hon.o.r^«Ix>wbU'id'iike --

 5   ,he didji.4t,,.Jbjin£ the. yd-dde^^^^i-l^a^e-gbt^the "vided down
 6   marked-, as-^a^-^of far. ^ofi.j.p.roof---be cause'-"nd'wfee- in-this'                /
 7   video        does it.-..state- that

 8                              THE COURT:        So you are through with this

 9   witness,                right?

10                              THE DEFENDANT:         No,    sir,   basically not yet,

11   Your       Honor.

12                              THE COURT:        Okay.      You want to introduce

13   something through this witness?

14                              THE .DEEENDANT-:^.~Ye^,_^:,sd.r^^^

15   in t r o.du c.e^t h e --vi d e o -i-ia-t o    e vide nee ? ---Yetfr-'-fidnpr .
      i        . . . .   i




16                              THEr™C0UJ^^,^ha t „d s_t he..,, videb^bf"?

17                              T HE.:,.D.E F ENDANT--. —^T-hd^^is^xrftS^vide©-~b#'^the

18   Adv^ea-Gip^eafe-e-r---where- the:~a'f'fialTt~~s-tatej^fthat-^Ambe'r
19   stated--thatf "she-'was- sexually-as:sa:feFt?efa^n^^                                     ,

20   the date"-6fr?this ..charge>.that;-..L.a:m-••.c;har.ged^with^.-and

21   nowhere in this -video does'---- this^statement :«is^made

22   no-wirere„;in-the :wideov -•- :Ahd_this--is-~the^Abasdsmf;o.r..-the
23   arrest warran-t. ,stating...thatA I«.-c©mmitted_ithis. crijTia^on

24   tHi s -dateAA£Your- 'Honor ;

25                              THE COURT:        Okay.      Go through the predicate
 1    and present the video to the Witness.

 2                           THE DEFENDANT:            Your Honor,     we don't   have

 3    possession of Amber Gaurnelo's video.

 4                           MR;..   FLEMiNG::: "'He waS&B:^^o^i^^W&Wac^e^%^t'o

 5    5evddeneel7:t-he^_vd4eo of- Amber.Gii§rne1o^,^wj^efe^lu&^. State

 6   (thaiSv.-JS^

)7
 8    even .,frbm .tinWeWA'F-Ea'-nfcsrgg^

 9    t-rua^^hatia^mpiy^ea^s-^^

10    sent-ehc-a^andA^
        *f
11    the-re'-S'jprobabie~caus-e-A^                                               to be

12    nb-WteEUfij^^^^

13    2#10,- -even—it -thatA'Htfete^r^

14    pea ci.ng—from"..^fea^a^^d-da^£it^

15                           THE' .COURTS..i-.,.:J-S.o?jj^o^^mm^mm0^^^^^&i3i&i^Si:^^t

16    t-ha.t-~s.ta.fcem:e-n.t^i^s^^

17    wrhat:i:ybu :" a'ri'-'-sa'f?i$fg-?

18                      . _AMR--. •-CAMPBELL^--::^NO^-Yb-uirBfcH-b'nb':r-.

19                           THE COURT:         Okay.     Come on,     then.

20                           MR.     FLEMING:     Here is a copy of the video,

21    Your          Honor.


22                           THE     COURT:     Mark    it.


23                           THE DEFENDANT:            I would like it introduced.

24                           THE COURT:         Show it       to the witness.

25           Q^^(£yuJtha...i>.e^
                                                                                           58




 1


 2       ,Asagssi^§hay^ndt,_ rjeyjewed .t-h i safi^isoakl^am¬::^s^rveaJ^hatAs^

 3   Q*aMtga.^..i^^

 4   wd^fcti'o.utiiwate-h.dn.g^i.t„... AL^don.-'-1 .. kn.ow.ii-i-4E---ha=ve inotsseen. -this.

 5


 6       Q;"''"*YdffKdid;:'"ahr-fn ,   _t igatrb'h^of^tTfiV^e-ase-^-and cpjites

 7   rielpel!Fsl^vi%^


 8       A^Kj.^^was^thgtr^gi^a^^                             ri«.i-inte:r«v:de w^afaa'om

 9


10   p^Ft^iie^a-r-^lN^V^

11   h^3ag^aiLo.^e:iBB»Ecsg£^

12                     THE DEFENDANT:           Your Honor,        is it possible

13   that we can play the D. V. D. for her?

14                     THE   COURT:       Sure.


15                     iB$fcB«©E¥!Sf^A*!!««^


16                     MR.   CAMPBELL:         Your Honor,        we have no

17   objection to it.

18                     THE COURT:         It's admitted.           Play it.

19                     THE DEFENDANT:           There were some other

20   witnesses.          May I approach,          Your Honor.

21                     THE   COURT:       Sure.


22                     •$H#^E^N12ANT^S2^


23   ,wit.n.e^saas:Lt:hafeto

24   tnw/ri*tei£#he*-s:u^p©e-na-iwith- -Bega^^^S

25
                                                                                  59




 1


 2


 3


 4                   PHE "COURT-:       [              your attc   -y._t.hat

 5   qt(lejstdl©n?

 6


 7                                iWBSMaBjfeaiaafe     £9ffi&'
                                                                   pt^^^s"
 8                   ^^j^g^^^Se^si^SB^eias^aEfe
 9


10   i*is3Sr^2fe?

11                   THE COURT:         Are   those Ben Taub records         --

12                   MR.   FLEMING:         The certified copies are

13   already in the file on the report.

14                   THE COURT:         And they had been on file for

15   more than 14 days?

16                   MR.   FLEMING:         Yes,   Your Honor.

17                   THE COURT:         So they are deemed as being

18   accurate records because they have been on file for a

19   significant number of time, oyer 14 days; and they have

20   the introductory letter saying that the custodian of

21   records has filed accurate copies of those documents.

22                   iJIHE^EOSJEi^MDAM^

23


24   proof,- you "are :      . j to'evaluate?

25                   TfH#¥fG©.U-R,^^^                                             e




                                                                 Jfb§
                                                                                                   60




   1    d^n^thiFs;«h,era^d'Trg ,"v".then--^.:-e'©K-si-d^e-r^'-tifta:'e^a^f^-Sf'-:lPi-©i§5si3&a

   2   «se^d~d'.en-s;e^im»?st^^                .

   3                         MR.    FLEMING:        ^T^&;f^^^:^^W&WdPf^a^T^'^^&^-^ai^

   4    t-Exhd'bi-t32!1.


   5                         THE    DEFENDANT:           No,    sir,    not    the Franks

   6    stuff.       I     need    1that.


  7                          THE    COURT:     So are we ready to look at this?

  8                          THE    DEFENDANT:           Yes,    sir.

  9                          THE    COURT:     How long is             this?

1.0                          THE    WITNESS:        I    don't    know.


11                           MR.    FLEMING:        I    think    it's    about    10,   15

12      minutes,         Your Honor.

13                           MS.    ALLEN:     The video          is    4 0 minutes,     Your

14      Honor.


15                                   (The tape was played.)

16                           THE    COURT:     Is       that    it?

17                           THE   DEFENDANT:           Yes,     sir,    that's it.

18                           THE    COURT:     Okay.           Continue.

19          0.   _(.B,y_Jthe«.J3ef.endajitl^

20     vixde©sanywfee^esv^e^e^'Mi%^;^Gua*ne-lo^S'ta;ted—that^I

.2.1    sex-uadiy^as-s aui4>ed^li^tei©lr^f12iS6i^

22      aA^^^eme^i^st;xua 11 y a s s auit ad he r ?

23
          j^^^^
24          Q.     So      could   you please tell the Court,                   you know,        why

25     you filed this affidavit stating that you witnessed
     .                                                 !    !
                                                                JfM   «^>
                                                                             61




 1       Amber jLn the video state that I sexually assaulted on

 2       2/26/10 when there's no statement ever made like that,

 3       ma'am?


 4          A.    I observed watching this interview that Amber

 5       said that the last time that she had sex with you was

 6       after Valentine's Day, which would be February.            And I

 7       also observed her say that the last time she had seen

 8       you was the day that she had turned herself in, which

 9       would be February 2 6 th.        So I can see where I got
                       .,,.        ——~^


10       confused with the exact day but not the month and year.

11          Q.    But this is a serious matter, ma'am.          Messing up

12       dates, getting dates confused, because you went to the

13       Judge with this here under oath and spoke before the

14       Judge that this is true and correct, everything_thjLs

15       here„

16          A.    Right.      And like I said, when I did this

17       affidavit,   I. understood that when she said the last time

18       b&.a^'S'fee-*ka^                              and after ^

19       reviewing the video I see how where she said it was_

20       after Valentine's Day, which would have been jujst

21       Februj^Xi-^OJLP---
22          Q.    You remember what you just said?         You said she

23       receives after after February 26th which you just said?

24          A.    After Valentine's Day,     so I am mistaken on the

25       26th but not the February of 2010.




                                                                JfSl
 1       Q.     So, ma'am, you are saying you are just go to a

 2   judge and j-ust give a judge an affidavit and just tells
 3   him that this here occurred on this date when it didn't?

 4                      MR.   CAMPBELL:      Objection,        argumentative,

 5   Your     Honor.


 6                      THE COURT:    I     will   allow      it.

 7       A.     I was mistaken on the date.                And at that time I

 8   believedthat after watching her interview the first

 9   time that it was c3n__Efi±>.ruary 2 6-fc*rT~

10       Q.     (By the Defendant) So you are saying, ma'am,                       that

11   you are mistakenly got me arrested on an_incident, you

12   are saying you witnessed Amber state that I sexually

13   assaulted her on 2/26/10?               That's what you are saying,

14   you made a mistake?

15                      MR. CAMPBELL:        Objection,        argumentative.

16                      THE COURT:    I will allow this question,                  but

17   we need to move it along.

18                      THE 'D-E-^MfeMj^^S^gj^^^^^^f^^^^^^^l^^^g
19   the., af-fidavit-,>:• -Your..-H©nqxi

20                      THE   COURT   I     said   I   will    allow the


21   question.

22                      THE DEFENDANT:        Yes,     sir.

23                      THE COURT:    So you can answer it.

24      iA.    .Yes._            i.'s taken: wat        -a11 ,,watghingfea.hei3j

25   ^^0^t^Mi^^^six^^^eW^^^::^^M.                        And now I see that
                                                                                63




 1     what she was referring to was after Valentine's Day,

 2     which would have been February of 2010.                 And then I see

 3     now that sfcetasays*it-he=sia's-1~feinte^^that^^fee^HS-d^saa-ni^os

 4    m'a^^Wel^fWaVy^^&tiW:'^ So I was mistaken on the particular

 5     date.


 6         Q.      (By the Defendant)         So I am not trying to --

 7    basically just to get it over with, you basically made a

 8    mistake?


 9                         THE COURT:     She has answered that question.

10     Let's move along.

11         Q.      (By the Defendant)         In the same affidavit, ma'am,

12    you are aware of article -- fee^ea^sa^t^^ss^is^-fa^ihg

13   sssi^iha-l^ei^aj*^^

14    tAfrer^'€iai:'a'i>

15    •t.h-iss-do'^


16    ^f^a^da?e€ffifWnrf?'

17                         MR.   CAMPBELL:     Objection.    That question is

18    confusing.

19                         THE   COURT:   I   don't   even understand the

20    question.

21                         THE^DE-FENDANTiassJa'Sieai-iyi'^-Yofrr^dr^or^^sa%

22    a^fciss^^is^^fei^s

23    afkE^da^it^of^a'ir-a-a^^^


24    b^earasa^^P^g^e^

25    p^esent^iti^tHliF^^^^                                         So it's a
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kjw uajlcss hn#  Review > Antiterrorism & Effective Death                      CrlmlnalLaw & Procedure > Habeas Corpus                                petition, apetidoner must show that the state
 holdingthat the state courfsfact-finding process                      Penalty Act                                                    * Procedural Default > General Overview                                 court's denial of a claim was so lacking in
 was adequate: If the federal court determines,                       Criminal Law /i Procedure > Habeas Corpus                       CriminalLaw & Procedure * Habeas Corpus                                 justificationthat there was an error well
 considering only the evidence before the state                       * Review > Specific Claims * Ineffective                        * Stare Grounds > Independent & Adequate                                understood and comprehended in existing law
 court, that the adjudication of a claim on the                        Assistance                                                      Principle                                                              beyond any possibility for fairminded
 merits resulted in a decision contrary to or                          Criminal Law & Procedure > Habeas Corpus                                                                                               disagreement.
 involving an unreasonable application of clearly                      > Review > Standards of Review > Deference                      For the procedural default rule to apply, the
 established federal law, or that the state courts                                                                                     application of the state procedural rule must                          Criminal Law & Procedure > Sentencing•>•
 decision was based on an unreasonable                                The standards creatediby Stricklandandithe                       provide an adequate and independent state law                          Capital Punishment > Mitigating
 determination of the facts; the federal court                        Anti-Terrorismand'Effective:Death Penalty Act                    basis on which the state court can deny relief.                        Circumstances
 evaluates the claim de novo and may consider                         of 1996 (AEDPA) are both highly deferential, and
 evidence properly presented for the first time in                    when the two apply in tandem, review is doubly                   Criminal Law & Procedure * Sentencing >                                The U:S: Constitution requires a sentencer to
 federal court.                                                        so. In considering the state court's denial of a                Capital Punishment * Mitigating                                        consider any and allmitigation evidence offered
                                                                       petitioner's ineffective assistance of counsel                  Circumstances                                                          by a defendant at trial. This mandate requires
 Criminal Law & Procedure > Counsel *                                 claims,the pivotal questionis whether the state                                                                                         the consideration of nonstatutory mitigating
 Effective Assistance > rests                                          court's applicationof the StricklandiStandard was               A difficult family background is a relevant                            evidence in order to safeguardindividualized
 CrlmlnalLaw & Procedure* Habeas Corpus                                unreasonable. A federal court does not ask, in                  mitigating circumstance if a defendant can show                        decisions that are essential in capital cases and
 * Review•> Specific Claims * Ineffective                      LLJ the first instance, whether counsel's                               that something in that background had an effect                        that give due respect tothe uniqueness of the
 Assistance                                                      performance fell below Strickland's standard                          or impact on his behavior that was beyond the                          individual defendant. Moreover, just as the State
                                                              or because an unreasonable application of federal                        defendant's control.                                                   may not preclude the sentencer from considering
 To bring a successfulineffective assistance of                        law is different from an incorrect application of                                                                                      any mitigating factor, neither may the sentencer
 counsel claim, a petitioner must show counsel's                       federalilaw The federal court must guard
                                                                                                                                       CriminalLaw&Procedure* Sentencing >                                    refuseto consider, as a matter of law, any
 deficient performance and prejudice. Deficient                                                                                        Capital Punishment * Mitigating                                        relevant mitigating evidence. In considering
                                                                       against the danger of equating
 performance requires a showing that trial                                                                                             Circumstances
                                                                       unreasonableness under Strickland with                                                                                                 mitigatingevidence, however, the sentencer may
 counsel's representation fell below an objective                      unreasonableness under AEDPA. The question                                                                                             determine the weight to be given relevant
 standard of reasonableness as measured by                                                                                             A sentencer in capital cases must be permitted
                                                                       is whether there is any reasonable argument that                                                                                       mitigating evidence.
 prevailing professional norms: A court                                                                                                to consider any relevant mitigating factor.
                                                                       counsel satisfied Strickland's deferential
 considering a claim of ineffective assistance                          ilandard. Federal courts are mindful that a state              Criminal Law & Procedure * Counsel *                                   CriminalLaw & Procedure >Sentencing*
 must apply a strong presumption that counsel's:                       court's determination that a claim lacks merit                  Effective Assistance » Appeals                                         CapitalPunishment* Aggravating
 representationiwas within the wide range of                           precludes federal habeas relief so long as                                                                                             Circumstances
                                                                                                                                       Criminal Law & Procedure * Counsel >
 reasonable professional assistance. The                               fairmindedijurists couldidlsagreeon the                                                                                                CrlmlnalLaw & Procedure > Sentencing >
                                                                2                                                                      Effective Assistance * Tests
 petitioner bears the burden of showing that                           correctness of the state courts decision.                                                                                              Capital Punishment > Mitigating
                                                                                                                                       CrlmlnalLaw & Procedure > Habeas Corpus
 counsel made errors so serious that counsel                                                                                                                                                                  Circumstances
                                                                                                                                       > Review > Specific Claims > Ineffective
 was not functioning as the counsel guaranteed • —                     Criminal Law & Procedure* Habeas Corpus                         Assistance
 the defendant by the Sixth Amendment. To                       t | >Exhaustion ofRemedies >Satisfaction ol                                                                                                   Arizonalaw required sentencing courts to
 establish prejudice, the petitioner must show a                       Exhaustion                                                      A criminal defendant enjoys the right to the:                          consider all mitigating evidence, evenif it did not
 reasonable probability that but for counsel's         »^              CrlmlnalLaw &Procedure >Habeas Corpus                                                                                                  establish a statutory mitigating factor. In addition,
                                                                                                                                       effective assistanceof counsel on appeal. A
 unprofessional errors, the result of the                      Procedural Default >General Overview                                federal habeas court considers claimsiof
                                                                                                                                                                                                              the Arizona Supreme Court specifically directed
 proceeding would have been different: A               J™              CrlmlnalLaw &Procedure * Habeas Corpus                          ineffective assistance of appellate counsel                            sentencing courts to consider each mitigating
 reasonable probability Is a probability sufficient to VW              * Review > Antiterrorism & Effective Death                      according to the standard set forth in Strickland.                     circumstance, whether or not enumerated by
 undermine confidence in the outcome. It is not          I             Penalty Act                                                     A petitioner must show that appellate counsel's                        statute, bothiindividually and cumulatively. Also,
 enough to show that the errors had some                                                                                               representation fell below an objective standard                        the Arizona Supreme Court would conduct a de
 conceivable effect on the outcome of the                              A habeas petitioner must present his claims to                  of reasonableness, and that, bin for counsel's                         novo review of the trial courts rulings concerning
 proceeding. Counsel's errors must be so serious                       the highest state court in order to satisfy the                                                                                        aggravation and mitigation to decide,
                                                                                                                                       errors, a reasonable probability exists thathe
 as to deprive the defendant of a fair trial, a trial                  exhaustion requirement of the Anti-Terrorism                    wouldihave prevailed on appeal.                                        independently, whether the death sentence
 whose result is reliable.                                             and Effective DeathiPenalty Act of 1996. The                                                                                           should stand.
                                                                       procedural default rule barring consideration of a              Criminal Law & Procedure > HabeasCprpus
 Criminal Law & Procedure > Counsel'•>                                 federal claim applies if it is clear that the state             > Review > Burdens of Proof
                                                                                                                                                                                                              Criminal Law & Procedure > Habeas Corpus
 Effective Assistance * Tests                                          court would hold the claim procedurally barred.                                                                                        > Review* Antiterrorism & Effective Death
 Criminal Law £ Procedure > Habeas Corpus                                                                                              In order for a federal habeas court to grant the                       Penalty Act

 A09CASES                                                                                                                              A09CASES
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                                                                                                                                   51 PM Friday, March 13,2015
                                                                                   Respondent-Appellee.                                     fact-finriinn hecaiigg the f^cts the state trial                          proceeding .28 U.S:C:S. §,2254(d): To
                                                                       Judges: Before: Harry Pregerson, Dorothy W.                          judge found involved her own conduct, and she                             determine the relevant clearly established
                                                                       Nelson, and SandraS. Ikuta, Circuit Judges.                          based those findings on her untested memory                              federal law, the federal court looks to the
                                                                       Order; Opinion by Judge D.W. Nelson; Dissent                         and understanding of the events.                                          holdings, but not the dicta, of the Supreme Court
 RICHARD D. HURLES, Petitioner-Appellant, v.                           by Judge Ikuta.                                                                                                                                at the time the state court adjudicated the claim
  CHARLES L. RYAN,* Respondent-Appellee.                                                                                                                                                                              on the merits In considering whether the state
 UNITED STATES COURT OF APPEALS FOR                                    CASESUMMARY                                                              TCOME: The case was remanded for an
                                                                                                                                            evidentiary heartno on the inmates claim ot
                                                                                                                                                                                                                      court unreasonably applied clearlyestablished
                 THE NINTH CIRCUIT                                                                                                                                                                                   federal law, the federal court is limited to the
   706 F.3d 1021; 2013 U.S. App. LEXIS 1305                                                                                                 judicial higff, but was otherwise affirmed.
                                                                       PROCEDURAL POSTURE: Petitioner inmate                                                                                                          record before the state court that adjudicated the
                      No. 08-99032                                                                                                                                                                                   claim on the merits.
                                                                       appealed the UnibSdStates District Court for the
    October 7,2010, Argued and Submitted,                              District of Arizona's denial of his federal habeas                   LexisNexis Headnotes
                Pasadena, California                                   petition challenging hisconviction forcapital                                                                                                  CriminalLaw A Procedure > Habeas Corpus
               January 18,2013, Filed                                  murder and the imposition of his death sentence                      Criminal Law & Procedure * Habeas Corpus                                  > Review* Standards of Review* Contrary A
                                                                       The inmate argued that the district court erred in                   * Appeals* Standards of Review > Clear                                    Unreasonable Standard > Unreasonable
                                                                       denying his claims of judicial bias and ineffective                  Error Review                                                             Application
 Editorial Information: Subsequent History                                                                                                  CriminalLaw A Procedure * HabeasCorpus
                                                                       assistance of sentencing and appellate counsel,
                                                                                                                                            > Appeals * Standards of Review *DeNovo                                  An unreasonable application of federal law
 Later proceeding at Huries v. Ryan, 2013iU.S.                         and in finding various claims procedurally
                                                                                                                                            Review                                                                    results where the state court identifies the
 App. LEXIS 5404 (9th Cir. Ariz., Mar. 19,
                                                                UJ defaulled.As allegation ofjudicial biaswould
                                                                                                                                            CriminalLaw & Procedure > HabeasCorpus                                   correct governing legal rule from U:S. Supreme
 2013)Opinion withdrawn by Huries v. Ryan, 2014                    havpeniiiied inmale lo habeas reliei, dulncl
                                                                                                                                            * Evidentiary Hearings * Review of Denials                               Court cases but unreasonably applies it to the
 U.S. App. LEXIS 9254 (9th Cir. Ariz., May 16,
                                                                or court abused its discretion in denying claim
                                                                                                                                                                                                                     facts of the particular state prisoner's case, or if
 2014)Substituted opinion at Huries v. Ryan,                           without evidentiary hearing. Case presented
                                                                                                                                            An appellate court reviews de novo a district                            it either unreasonably extends a legal principle
 2014 U.S. App. LEXIS 9255 (9th Cir. Ariz., May                        tronhlinn example of defective tact-finding as
                                                                                                                                            court's denial of a petitioner's habeas petition                         from Supreme Court precedent to a new context
 16, 2014)US Supreme Court certiorari dismissed                       J factsstatBtrialiudoefoundinvolvedherown                             and reviews the district court'sfindings of fact for                     where it should not apply or unreasonably
 by Ryan v. Huries, 2014 U.S. LEXIS 3989 (U.S.,                        rnnrtnrt anrf chpbaseTfmdlngsoTKerunfested
                                                                                                                                            clear error. The appellate court reviews for                             refuses to extend that principle to a new context
 June 3, 2014)                                                        > memory and understanding of events.
                                                                                                                                            abuse of discretion the determination that a                             where it should apply. A federal court cannot
 Ed|toria| Information: Prior History                                                                                                       petitioner is not entitled to an evidentiary hearing.                    grr.nt relief unless the state court came to a
                                                                          iVERVIEW:The inmate procedurally defaulted                                                                                                 decision that was objectivelyunreasonable.
                                                                       five of his ineffective assistance claims. Further,                  Criminal Law A Procedure > HabeasCorpus
 Appeal from the United States: District Court for                                                                                          * Review * Antiterrorism A Effective Death                                Criminal Law A Procedure > Habeas Corpus
 the District of Arizona. DC. No.                                CC counsel did not perform below the objective                             Penalty Act                                                              * Review* Scope ot Review
                                                                       standard of care when she did not establish a
 CIV-00-0118-PHX-RCB. Robert C. Broomfield,                                                                                                                                                                          CriminalLaw A Procedure > Habeas Corpus
                                                                       causal nexus between the inmate's mental                             Criminal Law A Procedure > Habeas Corpus
 Senior DistrictJudge, Presiding:Huries v.Ryan,                                                                                             * Review > Scope of Review                                               * Review* Standards of Review* Contrary A
                                                                       conditions andthe crime and counselconducted
 650 F.3d 1301, 2011 U:S. App. LEXIS 13819                                                                                                                                                                            Unreasonable Standard * General Overview
                                                                :9 a thorough penalty phase investigation and                               Criminal Law A Procedure > Habeas Corpus
 (9th Cir. Ariz., 2011)
                                                                       nrpsantart voluminous mitigating evidence. The                       * Review > Standards of Review * Contrary A
                                                                                                                                                                                                                     A federahcourt cannot, find that the state court
 Disposition:                                                          ln,il rnitn did consider the mitigating evidence                     Unreasonable Standard > General Overview
                                                                                                                                                                                                                      made an unreasonable determination of the
            AFFIRMEDinpart; REMANDED.                                  nffprpd ag ihe tl S Constitution required The
                                                                                                                                            The Anti-Terrorism and Effective Death Penalty                           facts in a case simply because it would reverse
                                                                       state supreme court's independent review of.the
 Counsel                                 Denise I. Young                                                                                    Act of 1996 (AEDPA).places limitations on a                               in similar circumstances If the case came before
                                                                       death sentence imposed also demonstrated that
               and Michael Aaron Harwin, Tucson,                                                                                            federal court's powerto grant a state prisoner's                         the federalcourton directappeal Instead,.the
                                                                 CD    the inmate did not suffer an error requiring
               Arizona,.for Petitioner-Appellant.                                                                                           federal habeas;petition. When a-state court has                          federal must be convinced that an appellate
                                                                       federal habeas intervention. However, because
                                            Terry .                                                                                         adjudicated a claim on the merits, a federal court                       panel, applying thenormalstandards of
                                                                       IhP allonalmn nl inrtirial hias would have if
               Goddard;        Attorney      General       of                                                                               may grant relief only if the adjudication of that                        appellate review, could not reasonably conclude
                                                                       nrnvnd entitled the inmate to federal habeas
               Arizona, Phoenix, Arizona,                 for                                                                               claim (1) resulted in a decision that was contrary                       that the finding is supported by the record before
               Respondent-Appellee.                                    fBlifffi lh° '"",r><^, *~*7llft Hfrused its discretion in                                                                                     the state court. To find the state court's fact
                                                                       rtomiinn th» claim without an evidentiary hearing.                   to, or involved an unreasonable application of,
                                                   Kent E.                                                                                  clearly established federal law, as determinedly                         finding process defective in a material way, or.
                                                                       The state court's denial of the inmate's judicial
               Cattani and J.D. Nielsen, Arizona                                                                                            the Supreme Court of the United States, or (2)                           perhaps, completely lacking, the federal court
                                                                       bias claim rested on an unreasonable
               Attorney General, Capital' Litigation                                                                                        resulted in a decision that was based on an                              must more than merely doubt whether the
                                                                       determination of the facts       the case presented
               Section, Phoenix, Arizona, for                                                                                               unreasonable determinationof the facts in light                          processoperated property. Rather,itmustbe
                                                                       an ccpcr-iallvtrniihlipt] trample of defective
                                                                                                                                            of.the evidence presented in the state court                             satisfied that any appellate court to whom the

 A09CASES                                                                                                                                   A09CASES                                                           2

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 restrictions andtermsandconditionsof the MatthewBenderMasterAgreement.                                                                     lestrictions and tenns and conditions of the Matthew Bender Master Agreement




                                                                                                                                     t-oC-to
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 i^A4r                                                                                                                                                                                                                                                        J45
                                                                                                                                    51 PM Friday, March 13, 2015
                                                                                CriminalLaw AProcedure * Pretrial Motions                      CriminalLaw A Procedure > Trials *                                   •. IInder Tnwnsenrt a fertaral courtmust nran^.an.
   While the Anti-Terrorism and Effective Death
                                                                                * Disqualification A Recusal                                   Defendant's Rights * Right to Due Process                              evidentiaryt|t>arjnp in circumstances where: (1)
   Penalty Act of 1996 stops short of imposing a                                CriminalLaw AProcedure * Trials *
   complete bar on federal court relitigation of                                                                                                                                                                      the «tato ennrts factual determinations are not
                                                                                Defendant's Rights •> Right to Due Process                     Nnn-narnnlaru rnnBi^c that temnl adjudicators
   claims already rejected in state court                                                                                                                                                                             fairhi •ji.nnnrtoriihu the record as a whole, and:(2)
                                                                                                                                               to disregard neutrality offend due process. A,                       „tha fart finHinp prr.rprti.ro pmp|nvf|fl,hy the jj|^te
  [proceedings it preserves authority to issue the                              Fuetv nr^cedure whjch wouldofferaipossible                   . iiirtnpmutt luilhrlraw whore chp p-r* m port »r
  writ in cases where there isno possibility                                                                                                                                                                          court was not adequate to afford a full andfair
                                                                              . temptation to the averageiudoe to torget the ~~               ,thn arrmalnn/ nrnrc.. hp/r.nnp., pmhmilpriin a                         hearing,                                 ——-
  fairminded jurists could disagree that the state                                    Habeas Corpus
                                                                                Constitutional Law > Bill of Rights >                          > Review » Antiterrorism A Effective Death                                                      Opinion
   A fair trial in a fair tribunal is a basic requirement
                                                          Q                    Fundamental Rights > Procedural Due                             Penalty Act
   of due process, t-aimess ot course requires an
   ahsenrn nf actual hiasin thp trial nfra<»« Bnl
                                                                               Process* Scope of Protection                                    CriminalLaw A Procedure * HabeasCorpus
                                                                 m             Criminal Law A Procedure * Pretrial Motions                    * Review > Standards of Review*
   the system of law has always endeavored to
                                                                               * Disqualification A Recusal                                   Presumption of Correctness                                                    (706 F.3d 1027} ORDER AND OPINION
   prevenl even Ihe probability of unfairness This
   mnsl basic tenet nf tuejudicial system hrtps In
                                                                  f^ Criminal Law AProcedure * Trials *
                                                                  LL, Defendants Rights >Right toDue Process                                  Ordinarily, a federal court cloaks the state courts                           The opinionfiled July 7,2011, and appearing
   ensure both the litigants' and the public's                                                                                                                                                                              at 650 F.3d 1301, is withdrawn, Carverv.
                                                                              I CriminalLaw A Procedure* Habeas Corpus                        factual findings in a presumption of correctness.
   confidence that each case has been adjudicated                                                                                                                                                                           Lehman. 558F.3d;869, 878-79 (9thCir.
                                                                  ""~• > Cognizable Issues > Due Process                                      28 U.S.C.S. § 2254(e)(1). However, the federal
   fairly bv a neutral and detached arbiter.                                                                                                                                                                                2009), andiis replacedby the opiniontfied
                                                                              \ Criminal Law AProcedure * HabeasCorpus                        court affords such deference only if the state
                                                                                                                                              court's fact-finding process survives the intrinsic                           concurrently with this order. Our prior
   Constitutional Law * Bill of Rights >                        < * Review * Specific Claims* General
                                                                                Overview                                                      review pursuant to Anti-Terrorism and Effective                               opinion may not be cited as precedent to any
   Fundamental Rights* Procedural Due                                                                                                                                                                                       court. Moreover, with the original opinion
   Process* Scope of Protection                                                                                                               Death Penalty Act of 1996's unreasonable
                                                                     ».        A nntitlnner peed not prove actual bias to                     determination clause.                                                         withdrawn, we deem the petition for
   Criminal Law AProcedure * Pretrial Motions                                                                                                                                                                               rehearing and rehearing en banc moot. The
   * Disqualification A Recusal
                                                                     -^"-"•Mi-h a•*'"• pr™-«« •fjnlf"1"" 'iff' f p~
                                                                     ^- intolerable risk ofbias.Thus,a federal court                          Criminal Law A Procedure > HabeasCorpus                                       parties may filea petitionfor rehearing and
   CriminalLaw A Procedure > Trials*                                                                                                                                                                                        rehearing en banc with respect to the
                                                                     fW mutt acik mhptiier under a realistic appraisal of                     > Review * Standards of Review * Deference
   Defendants Rights * Right to Due Process                                                                                                                                                                                 opinion filed together with this order.
                                                                     ^V. naurhninnir-^i jendenciesand human weakness,
                                                                               a Judge's interest poses such a nsk ot actual                  Where a state court makes factual findings
   The Due Process Clause of the Fourteenth                                                                                                   without an evidentiary hearing or other                                       IT IS SO ORDERED.
   Amendment establishes a constitutional floor,                 rx bias or prejudgment that the practice must be                             opportunity for the petitioner to present evidence,
                                                                 . —•.         forbidden if the nnarantee nf due nrocess is to                                                                                              D:W. NELSON, Senior Circuit Judge:
   not a uniform standard, for a judicial bias claim.                                                                                         the fact-fihdingiprocess itselfis deficientandinot
   While most claims of judicial bias are resolved                        •| he adequately. Implemented. Dueprocessthus                                                                                                     Petitioner Richard D. Huries appeals the
                                                                                                                                              entitled to deference.
   hvcnmmnnlaw statute or the professional                                    / mandates a stringent rule that may sometimes                                                                                                district court's denial of his federal habeas
   standards of the bench and bar, the floor                      «^. require recusal ot judges who navenoactual                              Criminal Law A Procedure* Habeas Corpus                                       petition challenging his conviction for capital
 f established bv the Due Process Clause clearly                  ar hiasandwhnmnnlri dntheirverybest toweitms,                               * Evidentiary Hearings * General Overview                                     murder and the imposition of his death
   mnulres a fair trial in a fair tribunal before a               "TT,- 'he scalesnfjustice equally ifthereexistsa,                                                                                                         sentence. Hurtes argues that the district
 - judge with no actual bias against the defendant                (Tl probability of unfairness. But this risk of                             Where a habeas petitioner hasmot failed to                                    court erred in denyinghis claims ofjudicial
   nr interest in the outcome of his particular ca45
                                                                                                                                                                                                                                                            M¥
                                                                                                                              51 PM Friday, March 13, 2015
      yearsfor prior crimes,went to the libraryin                           against Huries, that defended her ruling                         Attorney General's Office; represented                                  death sentence, fd. at 589. At the
      Buckeye, Arizona on aNovember afternoon                               below.                                                           Judge Hilliard in the special action                                    aggravation and mitigation.hearing, Huries
      in 1992. Sfafe v. Huries, 185 Ariz. 199,914                                                                                            proceeding and later admitted to having had
                                                                            In her response. Judge Hilliard described the                                                                                            offered substantial mitigating (706 F.3d
      P:2d 1291, 1293 (1996) (en banc). He                                                                                                   some communication with Judge Hilliard.
                                                                            murder as "brutal." She noted that defense                                                                                               1029} evidence, including his markedly
      attacked librarian Kay Blanton by attempting                                                                                           about this matter. In opposing a motionto
                                                                            counsel had not noticed any {706 F.3d                                                                                                    dysfunctional familybackground: cognitive
      to rape her and then stabbing her                                                                                                      disqualify the Arizona Attorney General's
                                                                            1028) defenses, had not disclosed the                                                                                                    deficiencies, long-term substance abuse,
      thirty-seven times. Id. Huries left the library,                                                                                       Office;from representing theistate, French
                                                                            names of trialwitnesses, had not requested                                                                                               mental illness, good behavior while
      cleaned himself up, discarded his bloody                                                                                               referenced her "communications with [Judge
                                                                            an examination of Huries and that jt was not                                                                                             incarcerated and an expert opinion that
      clothes and fled on a bus to Las Vegas,                                                                                                Hilliard] during the special action
                                                                            known whether Huries would present a                                                                                                     Huries suffered diminished capacity at the
      Nevada. Id. at 1294. The state charged                                                                                                 proceedings" but did not describe their                                 time of the crime.
      Huries with burglary, first-degree murder,                            mentallhealth expert at trial. Judge Hilliard
                                                                            nevertheless described the state's case
                                                                                                                                             nature of content. The record is ambiguous
      first-degree felony murder and attempted                                                                                               as to the nature and extent of those                                    Following the presentation of penalty phase
      sexual assault. Id. at 1293.
                                                                            against Huries as "very simple and                                                                                                       evidence. Judge Hilliard found one statutory
                                                                                                                                             communications:
                                                                            straightforward, compared to other capital                                                                                               aggravating factor: that Huries committed
      The court appointed an attorney to represent                          cases" and predicted that it would riot                          Addressing Judge Hilliard's participationin                             the crime in an especially cruel. Heinous and
      Huries, an indigent. That attorney moved for                          involve an inordinate amount of witness                          the special action proceeding, the court of
                                                               Q                                                                                                                                                     depraved manner. She found two
      the appointment of co-counsel when the                                testimony. She argued that the.denial of                         appeals held that it was "of the inappropriate                          nonstatutory mitigating circumstances: that
      State decided to seek the death penalty.                 LJJ          second counsel was rationally related to the                     'l-ruled-correctr/ sort" Huries, 849 P.2d at 4.                         Huries suffered a deprived childhood ina
      Defense counsel cited numerous reasons                                state's duty to preserve its resources, noting                   The court explained that "at every level of                             clearty dysfunctional home and that he
      necessitating co-counsel, among them, the                             that Huries had failed to show that his case                     the judiciary, judges are presumed to
      many witnesses, the State's intention to
                                                                                                                                                                                                                     behavedwellin prison prior to the underlying
                                                                            was "any more complex or difficultto                             recognize that they must do the best they                               crime. She concluded that these
      utilize forensic experts, the need to maintain                        prepare than almost any other criminal                           can, ailing by ruling, with no personal                                 circumstances did not wan-ant leniency and
      a productive client relationship and the                              case:"-Judge Hilliard referenced the rules of                    stakerand surely no yusf/c/abte stake-in                                condemned Huries to die. The Arizona
      dense and detailed preparation necessary                              professional conduct and stated that if                          whether they are ultimately affirmed or                                 Supreme Court affirmed Huries's conviction
      for bothphases of trial. The trial court                              defense counsel believed that she could not                      reversed." 7d. The court stated that "jtjhis                            and sentence on appeal. Huries, 914 P.2d at
      summarily denied the motion.                                          render competent representation, she was                         principle, which is essential to impartial                              1300,
      Defense counsel brought a petition for                                bound to withdraw and,quitepossibly, to                          adjudication, does not change from direct
                                                                            withdrawher name from the list of attorneys                      appeaftp special action, merely because the                             Huries filed his first petition for
      specialactioninthe Arizona Courtof                                                                                                                                                                             post-convictjonreview ("PCR") in 1999.
     Appeals. The petition challenged the denial                            who contracted with the county to serve as                       judge is a nominal respondent in the latter."
                                                                            appointed counsel. Judge Hilliard concluded,                     Id: The courtthen held that Judge Hilliard                              Judge Hilliardpresided over this PCR.
     of the motion to appoint co-counsel as
                                                                            "Clearty there are other attorneys who                           lacked standing to file a responsive;pleading                           French, the same attorney who represented
     violating Huries's rights to due process,                  s—          provide contract services for Maricopa                           and declined to consider thepleading filed in                           Judge Hilliardin the prior special action
     equal protection and the adequate
                                                                            County who would be able to provide                              her name. Id.                                                           proceeding, represented the state. Judge
     assistance of counsel. The real party in                 JQ
                                                                            competent representation in a case as                                                                                                    Hilliard denied the PCR, and the Arizona
     interest, the State of Arizona, declined to                                                                                             Judge Hilliard continued to preside over
                                                                            simple as this."                                                                                                                         Supreme Court summarily affirmed.
     respond to Ihe petition because it jacked                                                                                               Huries's trial: A jury found Huries guilty of all
     standing to do so. Huries v. Superior Court,                           The Arizona Court of Appeals published a                         charges. Judge Hilliard then conducted an                               Huries commenced federal habeas
     174 Ariz: 331, 849 P2d 1, 2 (Ariz. Ct. App.                            decision denying Judge Hilliard standing to                      aggravation and mitigation hearing to                                   proceedingsjn 2000. He themreturned to
     1993). However, the petition named the trial                           appear in the special action and ruling it                       determine the appropriate sentence for                                  state court to file a second PCR raising
     judge, Ruth Hilliard, as the respondent, as                            improper forjudgesto file pleadings in                           Huries. Arizona's capital sentencing scheme                             additional claims, including one of judicial
     requiredby Arizona law. Ariz. R. P. Special               CD           special actions solely to advocate the                           provided atthe time of trialthat Judge                                  bias. Huries moved to recuse Judge Hilliard
     Actions 2(a). This nominal designation "is a                           correctness of an individual ruling in a single                  Hilliard, sitting alone, would determine the                            from presiding over his second PCR. The
     mere formality," and the trialjudge "has no                            case. Huries, 849 Pl2d at 3-5. The court                         presence or absence of the aggravating                                  motion.was referred to another judge and
      interest in the litigation and should have no                         noted that the presiding criminal judge, not                     factors required by state law for the                                   denied. Judge Hilliardthen denied Huries's
      interest in the way the case is decided."                             Judge Hilliard, requested the filing of a                        imposition of the death penalty. Ring v.                                second PCR, and the Arizona Supreme
      Sfafe ex ret Dean v. City Court, 123 Ariz.                            responsive pleading and that there was no                        Arizona; 536 U.S. 584, 588,122 S. Ct. 2428,                             Court summarily affirmed.
      189, 598 P:2d 1008,1010-11 (Ariz.Ct. App..                            contact between Judge Hilliardand the                            153 L. Ed. 2d 556 (2002). The Supreme                                   Huries returned to federal court and filed an
      1979). Nonetheless, Judge Hilliard filed a                            Arizona Attorney General's office as the                         Court hassince heldthat capital defendants                              amended habeas petition; raisingten claims.
      responsive pleading, months before the                                pleading was prepared. Id. at 2, n.2.                            are entitled to a jurydetermination of any                              The district court denied:most of thenvas
      presentation of any evidencejn the case                               However, Colleen French, of the Arizona                          fact that would support the imposition of a                             procedurally barred. After additionalbriefing.

 A09CASES                                                                                                                               A09CASES
 t 2015 Matthew Bender &Company. Inc.. amemberoftheLexisNexis Group. Allrights leseived. Use ofthisproduct issubject tothe              ©2015 Matthew Bender &.Company. Inc.. amember of.the LexisNexis Group. Allrights reserved. Use ofthis product issubject lothe
 restrictions andtetmsandconditions of.IheMatthew Bender Master Agreement                                                               restrictions and leims and conditions ofthe Matthew Bender Master Agreement.




A45Q                                                                                                                                                                                                                                                    >3/
                                                                                                                                51 PM Friday, March 13, 2015
     the class of death-eligible defendants and                              bases for denying relief. Stewart v. Smith,                      defendant's offense-related conduct")                                   130 S. Ct. 447, 453,175 L. Ed. 2d 398
     (4) that, specifically, Arizona's F(6) statutory                        536 U.S. 856, 859^60,122 S: Ct 2578,153                          (internal quotation marks and citations                                 (2009) (finding counsel's failure to
     aggravating factor fails to narrow the class of                         L Ed. 2d.762 (2002) (per curiam)(holding                         omitted).                                                               investigate and presentmiiigatmg evidence,
     deathieligibie defendants.                                              denials pursuant to Arizona waiver rules are                                                                                             which did not reflect reasonable professional
                                                                             independent of federal law); Orfjz v. Stewart,                   Counsel did not perform deficiently. First,
     Huries procedurally defaulted these claims                                                                                               Supreme Court precedent existing at the                                 judgment, deficient and prejudicial): Rompilla
                                                                             149 F.3d923, 931-32 (9th Cir. 1998) (finding                                                                                             v. Beard. 545 U:S. 374, 390,125 S. Ct.
     when he failed to raise them before the                                                                                                  time of trial did not require showing a causal
                                                                             Arizona waiver rule consistently and                                                                                                     2456,162 L. Ed. 2d 360 (2005) (finding
     Arizona Supreme Court. See Zichko v.                                                                                                     nexus betweeni mitigating evidence and the
                                                                             regularly applied).                                                                                                                      deficient and prejudicial counsels' failureto
     Idaho. 247 F:3d'1015,1021-22 (9th Cir.                                                                                                   crime. In fact, the Supreme Court had held
     2001) (amended) ("A habeas petitioner must                              Now that we have found "an independent                           that "the sentencer in capital cases must be
                                                                                                                                                                                                                      examine court file relating to petitionees prior
     present his claims to the highest state court                           and adequate state procedural ground,                                                                                                    conviction); Wiggins, 539 UiS. at 532; 538
                                                                                                                                              permitted to consider any relevant mitigating
     in order to satisfy the exhaustion                                      'federal habeasreview.is barred unless                                                                                                   (granting petition where counsel conducted
                                                                                                                                              factor." Eddihgsv. Oklahoma, 455 U:S. 104,
     requirement of [AEDPA]:"). "fTjhe procedural                            [Huries] can demonstrate cause for the                            112,102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)                              unreasonably insufficient mitigation
     default rule!barring consideration of a federal                         procedural default and actual prejudice, or                       (emphasis added) (explaining Lockett v.
                                                                                                                                                                                                                      investigation that fell short of prevailing
     claim 'applies ... if it is clear that the state                        [can]demonstrate that the failure to consider                                                                                            professional standards); see also Wong v.
                                                                                                                                               Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L.
     court would hold the claim procedurally                                 the claims will result in a fundamental                                                                                                  Belmontes, 558 U.S. 15; 130:S. Ct. 383,
                                                                Q                                                                             Ed. 2d 973 (1978) (plurality)); see also
     barred.'" Franklin v. Johnson, 290 F.3d                                 miscarriage of justice.'" Bennett, 322 F.3d at                                                                                           385,175 L. Ed. 2d'328 (2009) (per curiam)
                                                                                                                                              Lockett, 438 US. at 604 ("[T]heEighth and
     1223,1230-31 (9th Cir. 2002) (quoting                                   580 (quoting WofSe v. Peterson, 9 F;3d 802,                                                                                              (denying IAC claim where counsel
                                                                UJ                                                                            Fourteenth Amendments require that the
     Harrisv. Reed, 489 U.S: 255, 263 n.9,109                                804-05 (9th Cir. 1993)). Huries has made                         sentencer... not be precluded from
                                                                                                                                                                                                                      "understood thegiavity of th[ej aggravating
     S: Ct. 1038,103 L. Ed. 2d.308 (1989)). If                               neither showing. The district court properly                                                                                             evidence" and "built his mitigation strategy
                                                                or                                                                            considering, as a mitigating factor, any
     Huries presented these IAC claimsto the                                 dismissed these claims.                                                                                                                  around the overriding need to exclude it).
                                                                                                                                              aspect of a defendant's character or record
     Arizona Supreme Court now, the court would                                                                                                                                                                       The state court reasonably denied this claim.
                                                                                                                                              and any of the circumstances of the offense
     dismiss them as waived. Ariz. R. Crim. P.
                                                                             2. Sentencing Counsel
                                                                                                                                              that the defendant proffers as a basis {706                             3. Appellate Counsel
     32.2 (waiver with narrow exceptions not                                 Huries claims that sentencing counsel failed                     F.3d 1033) for a sentence less than death.").
     applicable here). Thus, Huries's failure to                             to explain how Huries's mental illness and                                                                                               Huries alleges that appellate counsel denied
                                                                                                                                              Therefore, counsel did not perform below
     present these claims to the state supreme                  <            deficiencies affected his conduct at the time                                                                                            him the.effective assistance of counsel by
                                                                                                                                              the objective standard of care when she did
     court "'in a timely fashion has resulted ina                            of the crime, depriving him of the effective                                                                                             .not challenging the trial court's failure to
                                                                                                                                               not establish a causal nexus between
      procedural default of those claims'" Zichko,                           assistance of counsel. The state court                            Huries's mental conditions and the crime.
                                                                                                                                                                                                                      weigh the mitigating evidence cumulatively.
     247 F.3dat 1022(quoting O'Sullivanv.                                    reasonably denied thisciaim. As discussed,                                                                                               The state court reasonably denied this claim.
     Boerckel, 526 U.S. 838, 848,119 {706 F.3d                               to bring a successful IAC claim, Huries must                      Moreover, counsel conducted a rather
                                                                                                                                                                                                                      A criminal defendant enjoys the right to the
     1032) S. Ct. 1728,144 L. Ed. 2d 1 (1999));                  CD          show deficiency and prejudice. Strickland,                       thorough penalty phase investigation and
                                                                                                                                                                                                                      effective assistance of counsel on appeal.
     see also Coleman v. Thompson, 501 U.S.                      tw          466 U.S. at 687.                                                 presented voluminous mitigating evidence.
                                                                                                                                                                                                                      Evfffs v. Lucey, 469 UiS. 387, 391-97,105
     722, 732,11.1 S. Ct. 2546, 115 L Ed. 2d 640                                                                                              She called four witnesses to testify to
                                                               mO            Huries contends that trial counsel failed to                                                                                             S. Ct. 830, 83L. Ed. 2d 821 (1985). We
     (1991), overruled on other grounds by                                                                                                    Huries's dysfunctional family background,
                                                                             draw a causal nexus between his mental                                                                                                   consider claims of ineffective assistance of
     Martinez v. Ryan, 132 S. Ct. 1309,1315,                                                                                                  menial and psychological disabilities and
                                                                             health problems and his conduct at the time                                                                                              appellate counsel according to the standard
     182 L. Ed. 2d 272 (2012) (holding petitioner
                                                               _J                                                                             good behavior while incarcerated before the
                                                                             of the crime, thus, the menial Health                                                                                                    set forth in Stricklano, 466U.S. 668,104 S.
     "defaulted his federal claims in state court,"                                                                                           underlying crime. She commissioned a
                                                                             evidence presented at sentencing proved                                                                                                  Ct 2052,80-L. Ed. 2d 674. Millerv. Keeney,
     so, met "technical requirements for                                                                                                      detailed social history that catalogued
                                                                             worthless. Sfafe v. Wallace, 160 Ariz. 424,                                                                                              882 F.2d 1428,1433-34 (9th Cir. 1989):
     exhaustion"ibecause "no state remedies                                                                                                    Huries's maladjusted family circumstances
                                                                             773 P.2d 983(Ariz. 1989) (en banc) ("A                           arid deprived life, and thm contained
                                                                                                                                                                                                                      Huries must show that appellate counsel's
     [were] available to him") (Internafquotation                03                                                                                                                                                   representation fell below an objective
                                                                             difficultfaml|y background is a relevant                         affidavits from family members and others
     marks and citations omitted).                                                                                                                                                                                    standard'Of reasonableness, andthat, but
                                                                             mitigating circumstance if a defendant can                       who knew Huries. In her briefing before the
     For the procedural default rule to apply, "the                          showthatsomethinginthatbackground had                                                                                                    for counsel's errors, a reasonable probability
                                                                                                                                              trialcourt, defense counsel highlighted
     application of the stateiprocedural rule must                           an effect or impact on his behavior that was                                                                                             exists that he would'have prevailed on
                                                                                                                                               Huries's intoxication at the time of the crime.
     provide an adequate and independent state                               beyond the defendant's control."); see also                                                                                              appeal: Id. at 1434.
                                                                                                                                              Trial counsel also adeptly cross-examined
     law basis on which the state court can deny                             State v. Greene. 192 Ariz. 431,967 P.2d                          the state's psychiatrist.                                               The trial judge found beyond a reasonable
     relief." Bennett v. Mueller, 322 F:3d 573, 580                          106,117 (Ariz. 1998) (en banc) (This court                                                                                               doubt that Huries committed the crime in an
     (9th Cir. 2003) (amended) (internal quotation                           has held that family background may be a                          On this record, we cannot say that counsel's
                                                                                                                                                                                                                      especially heinous, cruel and depraved
     marks and citations omitted). Arizona's                                                                                                  efforts fell short of what the Constitution
                                                                             substantial mitigating circumstance when it                                                                                              manner, a statutory aggravating factor. As to
     waiver rules are independent andadequate                                is shown to have some connection with the                         requires: Porter v. McCollum, 558 U.S. 30,
                                                                                                                                                                                                                      cruelty, the court found that the victim

 A09CASES                                                                                                                                 A09CASES

 &2015Matthew. Bender& Company. Inc..a memberofthe LexisNexis Group. All rights resetved. Useofthis product is subject to the             £ 2015 Matthew. Bender &Company. Inc.. a member of theLexisNexis Group. Allrights resened. Useof thisproduct is subject tothe
 restrictions andtermsand conditionsof the Matthew BenderMasterAgreement.                                                                 restrictions and termsand conditionsof the MallhewBenderMasterAgreement.




^"50                                                                                                                                                                                                                                           J* 5/
_A5^
                                                                                                                                                                                                                                                   j^53>
                                                                                                                                  51 PM Friday, March 13, 2015
      remained conscious while being.stabbed                                        trouble with the law frequently                                   absent a showing that it significantly
      thirtyrseven times: she attempted to reach a                                  throughoutdeferidanfslife and may                                 affectedw impacted a defendant's                                      The Constitution requires a sentencer to
      phone to call for help and responded to                                       have abused alcohol throughout their                              abilityto perceive, to comprehend, or to                              consider any and all mitigation evidence
      paramedics who treated her at the scene.                                      lives.Number two, the defendant had                               control his actions. No such evidence                                 offered by aidefendant at-trial. Lockett, 438
      She also suffered fifteen defensive stab                                      good behavior while incarcerated prior to                         was offered, and the trial judge did not                              U:S. at 604. This mandate requires the
      wounds struggling to protect herself. The                                    the commission of this crime. While                                en- in concluding that Huriesls family                                consideration of nonstatutory mitigating
      court also found that Huries inflicted                                        incarcerated!,]defendant attended                                 background wasinot sufficiently                                       evidence in order to safeguard individualized
      gratuitous violence on the victim,                                           available counseling sessions and                                                                                                        decisions that are essential in capital cases
                                                                                                                                                      mitigating torequire a life sentence.The
      establishing that he committed the murder in                                  performed well in his work asa cook in                            judge also found that Huries had good                                 and that give due respect to the uniqueness
      a heinous or depraved manner. In addition to                                 the prison kitchen.The court then noted                            behavior while incarcerated.prior to                                  of the individual defendant Id. at 605.
      the fifteen defensive wounds, the victim                                     that it had considered other factors                               committing the murder. Taken either by                                Moreover, "fijust as the State may not...
      suffered eightstab wounds to her head and                                    Huries had raised in his briefing,                                 itself or in combination wjth Huries's                                preclude the sentencer from considering any
      neck, twelve to her torso and two to her legs.                               including his low intelligence and lack of                         family background, we do not believe                                  mitigating factor, neither may the sentencer
      Of the thirty-seven wounds, three could have                                 education, as well as his inadequate                               this sufficiently mitigates the quality of                            refuse to consider, as a matter of law, any
      been fatal; the victimbled to death. The                                     mental health treatment while                                                                                                            relevant mitigating evidence." Eddings, 455
                                                                                                                                                      the aggravating circumstance. {706 F.3d
      court concluded that the attack "had to have               Q                 incarcerated. The court did notfind                                                                                                      U:S. at 113-14. Inconsideringmitigating
                                                                                                                                                      1035} A life sentence would not be more
      been mind-numbing arid terrifying and                                        those factors mitigating. The trial court                          appropriate./d. at1299-1300 (citation                                 evidence, however, the sentencer "may
      excruciatingly painful" for the victim (706                UJ                concluded that Huries had not shown                                omitted).                                                             determine the weight to be given relevant,
      F.3d 1034} and that Huries committed the                                   . that any of the proven mitigating                                                                                                        mitigating evidence." Id. at 114-15.
      murder in an especially heinous, cruel and                                   circumstances were sufficiently                              The state court denied Huries's claim of
                                                                                                                                                                                                                            Arizona law in existence at the time of trial
      depraved manner.                                                             substantial to warrant leniency and                           ineffective assistance of appellate counsel,
                                                                                                                                                which he raisedin his first PCR. The court
                                                                                                                                                                                                                            required sentencing courts to consider all
                                                                                   imposed a sentence of death.                                                                                                            ' mitigating evidence, even if itdid not
      The trial court also considered the evidence                                                                                              reasoned that Huries had not met the
      in mitigation. The court found that Huries did                          Huries contends that the trial court                                                                                                          establish a statutory mitigating factor. Sfafe
                                                                                                                                                 Strickland standard, that thestate supreme
      notestablish statutory factor (G)(1), A:R.S.§                           considered evidence of his mental                                                                                                             v. McMurtrey, 136 Ariz. 93, 664 P.2d 637,
                                                                                                                                                 court independently reviewed the sentence
      13-703(G)(1), which concerns diminished                    <            deficienciesand intoxication for the limited                       and that the outcome.on appeal wouldinot                                   646 (Ariz. 1983) (en banc). In addition, the
     capacity, or the ability toappreciate the                                purpose of determining whether he suffered                         have been different if Huries had presented                                Arizona Supreme Court specifically directed
     wrongfulness of one's conduct or to confomi                              from diminishedicapacity at the time of the                        this claim explicitly. First PCRat 3.                                      sentencing courts.to consider each
     one's conduct to the requirements of law. -                              crime. He argues that the trial court failed, in                                                                                              mitigating circumstance: whether or not
     While the court found that Huries is                                     the final analysis, to consider evidence of his                   We must consider whether this denial of                                     enumerated by statute, bothindividually and
     "borderline mentally retarded" and has a                                 mental deficiencies and intoxication                              Huries's claim of ineffective assistance of                                 cumulatively. Sfafe v. Gallegos, 178 Ariz. 1,
     learning disorder, he still understood the                   J—          cumulatively with the other mitigating                             appellate counsel qualifies as objectively                                 870P.2d 1097. 1:118-19(Ariz: 1994). Also at
     consequences of his actions and attempted                                evidence. Huries claims that counsel erred                         unreasonable. In order for us to grant the                                 the time, the Arizona Supreme Court would
      to cover his tracks to evade detection. The                             in failing to raise this issue on appeal.                          petition, Huries must show thatthe state                                   conduct a denovo review of the trial court's
      trial court accepted evidence that Huries had                                                                                             court's denial of this claim "was so lacking in                             rulings concerning aggravation and
                                                                              Counsel did not raise any sentencing issues                       justification that there was an error well                                  mitigation to decide, independently, whether
      been drinking before the crime but found it
                                                                              on appeal, which the Arizona Supreme Court                         understood and comprehended in existing                                    the death sentence should stand. Brewer,
      insufficient to establishiincapacity due to
                                                                              noted: tfurfes.914P.2d at 1299.'Even;so,                           law beyond any possibilityfor fairminded                                   826 P:2d at 790-91.
      intoxication.
                                                                              the state supreme court conducted "a                              disagreement." Richter, 131 S. Ct. at
      The court found that Huries had proved, by a                            thorough and independent review of the                                                                                                        Had counsel presented a claim tothe
                                                                                                                                               - 786-87. Huries has not made such a
      preponderance of the evidence, two                         03           record and of the aggravating and mitigating                                                                                                  Arizona Supreme Court that the trial court
                                                                                                                                                 showing. Even if we presume deficiency, we
      nonstatutory mitigating circumstances:                                  evidence to determine whetherthe sentence                        find prejudice wanting. Strickland. 466 U.S.                                 failed to considerate cumulative weight of
                                                                              [wa]s justified:" /d. (quoting Sfafe v. Brewer,                  at 697 (holding a court deciding an IAC claim                                the mitigating evidence.presented, we see
           Number one, the defendant had a                                                                                                                                                                                  no probability that Hurtes would have
                                                                              170 Ariz. 486, 826 P.2d 783, 797 (Ariz.                        - need not address both components of the
           deprivedchildhoodand was raised in a                               1992)). The court summarized the trial                                                                                                        prevailed. At sentencing, thetrialcourt
           clearly dysfunctional home environment.                                                                                             inquiry if the defendant makes an insufficient
                                                                              court's findings regarding the mitigating                                                                                                     stated on the record that it had considered
           Defendant's father was abusive to                                                                                                   showingon one). Huries has not shown that,
                                                                              evidence and stated:                                              but for appellate counsel's failure to raise                                nonstatutory mitigating circumstances,
           defendant and to his siblings, molested                                                                                                                                                                          "including anyaspectof [Huries's] character,
           his daughter, had sex withihis son's                                    A difficult family background, including                     this claim, the state court would have
                                                                                                                                                invalidated his death sentence. Miller. 882
                                                                                                                                                                                                                            propensities or record" that might call for
           girlfriend. Defendant's brothers werein                                 childhoodabuse, does not necessarily                                                                                                     leniency. The court also noted that ithad
                                                                                   have substantial mitigating weight                           F:2d at 1434.


A09CASES                                                                                                                                    A09CASES                                                          14
 V, 2015 Matthew Bender &Company. Inc.. amemberof theLexisNexis Group. Allrights reseived. Use oflitis product issubject 10 the             &2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Group. Allrights resened. Useof thisproduct is subject lothe
restrictions and lenns and conditionsof Ihe Matthew. BenderMasterAgreement.                                                                .restrictionsand teims and conditions of the Matthew Bender Master Agreement.




J?^                                                                                                                                                                                                                                     -* 53
JV54                                                                                                                                                                                                                                                   ^V33
                                                                                                                                   51 PM Friday, March 13, 2015
         considered'Huries's sentencing,                                                                                                           (200911 We (706 F.3d 1037) do not ask                                 where the judge has a direct, personal and
                                                                              Huries contends that Judge Hilliard's failure
         memorandum, the testimony presented both                             In recuse herself Irnm his trial santonrinn
                                                                                                                                                   whether Judge Hilliard actually harbored                              substantial nerainiani interest in convicting a
         at trialiand the sentencing hearingand the                                                                                                subjective bias, fd. Rather, we ask whether                           defendant. Tumev. 273 U.S. at 523. 532.
                                                                              and nnst-conviction proceedings denied him
         argumentsof counsel, in addition to Huries's                                                                                              the average          i inherposition waslikely                        Other financial interests also may mandate
                                                                              due nrncess of law The state court came to
         deprived upbringing and good behaviorwhile                                                                                                to be neutral or whether there existed an         **                - rental cuonH I»q« Hirart Gihsnn V
                                                                              an unreasonable determination of the facts
         incarcerated, the trial court noted it had                                                                                                unconstitutional potential for bias. 70. "Every                       Ranvhill AM IIS >iRi 170 03 S Q 1RBO
                                                                              in denvinn this claim. Accordingly, we
         considered Huries's low intelligence, lack of                        remand for an euirtentlatv haarinn                                   procedure which would offer a possible                                36! Fd 2ri.48B.M973>: see also Ward v.
         education and inadequate{706 F.3d 1036)                                                                                                   temptation to the average           judge to lOroeT                   Mnnmevilla 409 US S7 93 S Ct. 80. 34 L.
         mental hearth treatment while incarcerated.                          The Supreme Court held lono aoo that a "fair                         the burden of nrnol required to convict the                           Fd ?rt 767 (197?Wrenuirinn recusal where
                                                                              trial in a fair tribunal is a basic requirement                 .    defendant, or which miqhl lead him nol lo                             villana mayor with r^yfnue production role
         While the mitigating evidence may have                               rt flue pr~.»cc - In r* *A..~t,.,n~ 1*0 I I C                        hold thebalance nice, clearand true                                   also sat as a judge and imposed
         moved us to mercy had we presided over
         Huries's sentencing trial, such a
                                                                             ,133.136: 75 S. Ct 623. 99L. Ed. 942                                  between the State and the accused denies
                                                                                                                                                                                                       *                 revenue-producing fines on the defendant):
                                                                              MBSM "FaimaM nf rnurse renuires an                                   the B 3 due nrncess nflaw " TumavV                                    faunto 47SUS a\ 834-25 (requiring recusal
         determination's not appropriate on habeas
                                                                              absence of actual bias in the trial of cases.                        jQnio. 273 U.S. 510, 532,47 S. Ct 437. 71 L.                          where (1Va justice of the state supreme
         review. Richter, 131 S. Ct. at 786 (holding a
                                                                              But our svstemof law has always                                      Ed. 749,5 Ohio Law Abs 159, 5 Ohio Law                              . court cast the deciding vote and authored an
         reviewing court must not treat the                      Q           - MrfM..nmH in pBueal °"°" w"'-p~*irTiHHy                             Abs. 185, 25 Ohio L. Rep. 236 (1927).                                 opinion upholding punitive damages in
         unreasonableness question as a test of its                          .nf unfairness "frt r* MfchaHa v        llnitart                                                                                            certain insurances cases and (2) that same
         confidence^ the result it would reach under                                                                                              r Huries need not prove aclualbias to
                                                                                      . 488 UiS. 361, 407,109 S. Ct. 647.                                                                                                hitting was a nlaintiff ir;a pending action
         de novo review). Instead, we must ask                                                                                                    , establish a due nrnr^gs violaMon. just an
                                                                              1021. Ed. 2d 714 (1989) (The teaitimacvldf                                                                                                 involving the same legal issues from which
         whether reason supports the state courts                                                                                             —
                                                                                                                                                   intntorahla risk nf hias    Antra I Ha Ins Cn v
                                                                 IT           the Judicial Branch ultimately depends on its                                                                                              he nhtaineH a lame monetary settlement!
         conclusion that counsel rendered effective                                                                                                favnfo az&as &U "™ <™s P.t ISMy
                                                                              renmalion tor impartiality and                                                                                                             Non-oecuniaiv conflicts "that tempt
         assistance to Huries; despite not raising this                                                                                            89!   Fd 7riB?arigBR\ *ae also Carterton
                                                                              nnnnartisanshln "1 This most basic tenet of                                                                                                aHinriiratnre tn rtisrenardneutrality" aly.
         claimon appeal. We find no error in that                                                                                                 ,556 UiS. at 883 ("mhe Due Process Clause
                                                                              our judicial system helps to ensure both the                                                                                               nffonri rii.o nrfTflftUP Caparim. 556 U:S. at
         determination. The record makes plain that                                                                                                has been implemented bv objective
                                                                              litigants' and the public's confidence that                                                                                          .     «7fl fljiirtpomii^YyUhdraw where she acts
         the trial court did in fact consider the                                                                                                  standards that do nnt renuire nronf nf actual
                                                                              each case has been adjudicated fairly by a                                                                                                 a» part nf tha arniQalnry prm-estB
         mitigating evidence offered, as the                                                                                                       hias "> (citing Lavoie. 475 U.S. at 8?5:
                                                                              neutral and detached arbiter                                                                                                               ••fiifrfifpin 34911 s"at 137. "becomes
         Constitution requires. Parker v. Dugger, 4S8                                                                                             . Mavbemv. Pennsylvania. 400 U.S. 455.
                                                                                                                                                                                                                         emhrniiert in a running, bitter controversy"
         U.S. 308, 314,111 S. Ct. 731,112 L. Ed. 2d                           'The Due Process Clause of the Fourteenth                           . 465-66. 91 S. Ct. 499. 27 L. Ed/ITSST                               • with one nf the litinants Mavbem. 400 U.S.
         812 (1991) ("We must assume the trial                                Amenntnenl establishes a constitutional                             , /1B71V T:mau 773 11S at,M71 Thus we
                                                                                                                                                                                                                         at 4RS or hecomes "so enmeshed in
         judge considered all this evidence before                            flnnr nnfa nnifnmi standard:" for a Judicial                    - m«la«t 'Wtether 'iinrier a rr:a\\f.%
                                                                   03                                                                                                                                                   .matters involving la litigantl as to make it
         passing sentence.For one thing, he said he                           bias claim. Bracy v. Gramley, 520 U.S. 899,                     , appfa,|sal of psychological tendencies and
                                                                   s—         om i n c r, IVnJt fWI \-A 'MWI             '                                                                                              - annronriqte for another iudoe to sit."
         did."). The Arizona'Supreme Courts                                                                                                  .,- human weakness ' the Hudoe'slinterest                                     Inhncnnv Miccifrippi Mill! in,
         independent review of the death sentence                             (1997). While most claims of judicial bias are                       'nnses si ir-Jl a rialc nf ach lal hia« nr
         imposed'here also persuades us that Huries
                                                                 -Q           resolved "bv common law, stalule. or the
                                                                                                                                                                                                                         215-16f706 F.3ri mSBt 91 R         P.t 177B 99
                                                                                                                                                   prejudgment that the practice must be
         did not suffer an error requiring federal                            professional standards ofthe benchanq;                               forbidden if the guarantee of due process is                          i,Ffl,ticond MUM al \-1, 1-J5
      U.S.C. § 2254(e)(1). However, we afford                                 years before. Instead, Judge Hilliard                                                                                                       .seemng ngni to ungate luqiciai bias claim
                                                                              accepted her factual assertions as true and                          This case presents an especially troubling
      such deference only if the state court's                                                                                                     examnle nf defective fact-findinn because                            _ letore atriahjudge^other than Judge
      fact-finding process survives our intrinsic                             reliedon them to concjude that "a                                                                                                           Milliard), under lownsend, a federal court
                                                                              reasonabieand objective person would not                           .•the, filrts Judge Hilliard "found" involved her
      review pursuant to AEDPA's "unreasonable                                                                                                     own conduct, and she based those "findings"                            rrnlslgram ah evidentiary hearing in'
      determination" clause. See Taylor, 366 F.3d                             findpartiality." See Minute Entry, Aug. 9,
                                                                              2002, at 2, Huries v. Schriro.No.                                    on her untested memory and understanding
      at 1000. Here, the state court's                                                                                                             of the events. See Buffalo v. Sunn, 854 F:2d
      fundamentally flawed fact-finding process, to                           CIV-00-0118-PHX-RCB (D.:Ariz. 2008).ECF                                                                                                     supported by the record as a whole, and (2)
                                                                              72-1 at 19 ("Minute Entry").                                         1158.1165 (9th Cir. 19881 (finding errnr
      the extent it constitutes a process, fails our                                                                                               when the court relied on "personal
                                                                                                                                                                                                                          the tact-tmding procedure efflrJIoyeMiby me"
      intrinsic review.                                                       Judge Hilliard's denial of Huries's judicial                         knowledge" to resolve riisniiteri issue nf                             state court was not adequate to attord a full
                                                                              hias claim rests nn an unreasonable                                  factV cf M.rmf.fsn/1 349 11 R        al IWITlii,.                       and fair hearing. Townsena.ili U.S. at 3ft.
      In his second PCR, Huries alleged judicial                                                                                                                                                                          .Therefore, HunesiserUifedto8-Hevidentiary
      bias. He argued that Judge Hilliard                       Q             ri°'°""^nntl"" "">"» fjcts. yve have held                            the judge whom due process requires to.be
                                                                              rcnaatcr]^ )^| flh,»re a slate court makes                           impartial inweighing the evidence presented                             hgaring if his allegations, if proved, would
      responded to his special action petition,                                                                                                                                                                           entitle him to relief. Stanley,- 598F,3d al 624.
      received contemporaneous copies of each                   LJJ           factual findings without an evidentiary                             liefore him, called on his own personal
                                                                              hearing or otheropportunity forthe petitioner                                                                                               They would.
      pleading filed in her name, knew the                                                                                                         knowledge and impression of what had
                                                                              to present evidence: "the fact-finding                               occurred in the nranri inrv mnm anri hi~
      pleadings were framed in terms of her                                                                                                                                                                               Iirdetermining whether Huries enjoyed "a
                                                                              process itself is deficient" and not entitled to                     judgment was based in part on this                                     fair trial;in a fair tribunal," Bracy, 520 U.S. at
      personal opposition to his request for relief,
      did not object to the tone or content of the
                                                                -J            deferens Tavfnt 3fifi F,3d at 1001 ("If, toT?                        impression the accuracy of.which could nnt                            .904. we must consider whether the
                                                                              example a slate court makes evidential                             f be tested bv adeouate cross-nyaminatinn "I                             probability that Judge (706 F.3d 1040)
      pleadingsand repeatedly denigrated
                                                                              findings without holding a hearing and giving                                                                                              Milliard harbored actual bias against Huries
      defense counsel. SecondPCR at 1-3-1-5.                                                                                                       We cannot conclude, nor could any
      Judge Hilliard then presided over his trial
                                                                              petitioneran opportunity to present             """                                                                                         is too high to be constitutionally tolerable,
                                                               <              evidence such finriinn. Heady result in an                           appellate panel, that the record supports             ,
      and sentencing, sentenced him to death,                                                                                                      Judge Hilliard's tactual findings (0 al fOfifJ                         Wrthrow. 421 UiS. at 47. We must asiT
      presided over and denied his first PCR and
                                                                              unreasonahla riatartnlnption of the facts")                                                                                                 vhether the average judge, in Judge
                                                                                                                                                   Any appellate court tn whom (hi. rf^-! •••»-
                                                                              (internal quotation marks omitledl: see also                                                                                                Hilliard's position, was likely to sit as a
      presided oyer his second PCR. Second PCR                                                                                                     pointed out would be unreasonable in
                                                                              Perez v. Rosario. 459 F.3d 943. 950 (706 .
      at 1-2. Judge Hilliard denied Huries's judicial                                                                                              holding that Judge Hilliard's lad finding                              neutral, unbiased arbiter or whether there
                                                                              F:3d 10391 (9th Cir. 20061 (amended) Tin
      bias claim.                                                                                                                                                                                                         existed an unconstitutional risk of bias.
                                                                              many circumstances, a state courts                                   -irocess
                                                                                                                                                   Pi       was adequate, fd. Based on the
                                                                                                                                                                                                                          Caperton, 556 U.S. at 881. But to consider
      Judge Hilliard did not holdan evidentiary                  •"•          determination of the facts without an                                Haws in the state court's tact-finding
                                                                                                                                                                                                                          fairly the potential for bias, we must consider
      hearing or provide another mechanism for                   (^           evidentiary hearing creates a presumption of                         process, we conclude the state court
                                                                                                                                                   decisibhr^sUltedlhah"Unreasonable *                                    the average reasonable juage in (He"
      Huries to develop evidence in support of his • •_                       unreasonableness.") (citing Taylor. 366 F.3d                                                                                                particular circumstances in which Judge
      claim, despiteherconclusion that Huries                                 at mom Nunas v Mualla, 3Sfl F .3d 1(Ut '                             determination of the facts" and is notentitied
                                                                                                                                                   to a presumption ot coolness t»»»i al                                  Hilliard touno nerseft. Murchison. 349 U.S: aL
     "offerjedj no factual evidence to support his                            iiw;iomri,OT»ini„i,u«,ii,a.
                                                                                                                 -.stale                                                                                                  136 (noting that the probability of unfairness
      allegations." Minute Entry, Aug. 9, 2002, at               ^^           court havinn refusedifthe petitioner! an
                                                                                                                                                 -.999 (holding unreasoning ^°r-™in-ii™.
                                                                                                                                                                                                                          "cannot be defined with precision.
     2, Huries v. Schriro, No.                    «^                          evidentiary hearinn we need not of course                            clause applies where "the process employed
                                                                                                                                                   bythestate court isdefective"). ~                                     -Circumstances and relationships must be
      CIV-00-0118-PHX-RCB (D. Ariz. 2008), ECF ^                              defer to the state court's factual findings-if                                                                                              considered"). While Huries does not face
     72-1 at:19 ("Minute Entry"). Even worse, she £H                          that is indeed how those stated findings                            Where a habeas petitioner has nnt failed In                             the daunting task of proving actual bias in
      found facts based on her untested memory                               . should be characterized-when they were                             develop the factual basis of pjj claim in »tat»                        .order to establish a due process violation:
      oftheevents, putting material issues of fact m—I                            i=i»,iiiWni.-!iWiHiii*.iiiit.wiEaiaffla;                        qpurt as required bv 28 Mjjjjfl, § T>*Aic.y)f                           Lavoie, 475 U.S. at 825, as the risk of actual
      in dispute. Judge Hilliard concluded that she                           PBOfe. 282 F.3d 1704 17nfl(flthCir 70(171                           an[evidentiary hearing is required if (1) the                           bias or prejudgment goes up, st), tUU, dees-*
      didhot specifically authorize a pleading to be                          ("Having refused fpetitionerl anevidentiarv                         petitioner nas snown his entitlement to an                              the strength of his judicial bias claim, see
      filed on>her behalf, did nof provide any input                          hearing on the matter, the state cannot                             eViaehTlflry neanng pursuant to Townsandv                               Caperton. 556 U.S. at'883-84. Thus, a
      on the responsive brief, that she was a                                 amne now that the normal AFDPA                                       Sam, 'il'lUM. mSil. 83s ct 7A* 57^                                     likelihood of unfairness would require
      nominal,party only and that she did not have                            deference is nweri the factual vtatorminatinnn                      Ed. 2d770(1963V and(21 the aiier.atimi.Aif                              recusal even if Judge Hilliard did not actually
      any contact with the Arizona Attorney                                   nf the fstatel courts "\-Weaverv. Thompson^                         true, wouldentitle him to relief, .tfanfau tob,                        •Uarbor bias against Huries. Murchison 349
      General's Office. In effect, she offered                                197 F 3d 359 3fi3 (9th Cir 1QQOWaccnrrtinn                           f'ski atoz». A petitioner who has previously"                          U~Sai136                      ~~

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% J* 5^) 51.PM Friday, March 13, 2015 In this case, the state judge resolved a waist in.an unsuccessful attempt to rape her. great terror as she was stabbed repeatedly The tenor of Judge Hilliard's responsive recusal motion based on the judge's own Usjng aparing knife found in the back room by {706 F.3d 1042} Huries.She also must ^pleading in thespecial action proceedin' understanding of whether her impartiality -~JlSelt, suggest strongly that the average of the library, Huries mortally wounded have suffered great pain. In addition to the might be questioned. Nothing about that is Blanton, stabbingher thirty-seventimes and fifteen defensive stab wounds orvher hands, •judge in her position could not later nreairte unusual: federal courts, including this one, inflicting blunt force trauma by kickingiher to Blanton was stabbed eight times in the head, over Huries's guilt phase, penalty Iff"1 anH uniformly adopt this approach. See, eg., such'an extent he tore her liver... .[Huries twelve times in the torso, and twice in her post-conviction proceedings while holding *Tie Balance Hlr-e. clearand tmal! hawST" Sueverv. Conneli, 681 F.3d 1064,1065(9th then fled the scene.JBetween 3:00 and 4:00 lower extremities. She also sufferedblunt the state and Huries. Tumev. 273 U.S. at Cir. 2012); see also Miles v. Ryan, 697 F.3d p:m., Huries rode [a borrowed] bicycle to the trauma consistent with kicking, which tore 532. But proof that Judge Hilliard , 1090,1090(9thCir. 2012).Yet the majority home of his nephew, Thomas, in Buckeye her liver.The ban-age of violence:inflicted on participated in me special action notes that the state judge did not hold an and asked Thomas for a ride to Phoenix. Blanton, the fact that she was conscious evidentiary hearing on the petitionees claim Huries had changed his clothes and cleaned throughout the attack, and her struggle to proceedings as-"tore than a nominal party that recusal was appropriate, and concludes had contact with French. commjsajrin'M<"~ himself up somewhat; and Thomas, who had fight off her attacker all indicate she suffered that "jajny appellate court to whom this been asleep and was unaware of Blanton's terribfy and far above the norm of even authorized the responsive pleading or defect was pointed out would be murder, agreed to drive Huries to Phoenix. first-degree murder, leaving no room to provided any input on the brief, w^iulri hein unreasonable inholding that [the state As the two left the house, Huries was doubt that this murder was especially establish that Judge Hilliard became "so Q eomesned in matters involving fHuriesl asto. judge's] fact-finding process was adequate." carrying a bundle of clothes. During thedrive cruel.Sfafe v. Huries. 185 Ariz. 199.914 Maj. op at 30. to Phoenix, Thomas noticed that Huries had P.2d 1291,1293-94,1299 (Ariz. 1996).B make it appropriate for another judge to sit." UJ {706 F.3d 1041} Of course this conclusion is bite marks on hjs wrist. When asked about After Huries was indicted for this murder, Johnson. 4U3 U:S. at 215-16. or that Judge •Hilliard became "embroiled in a running, wrong. Worse, this conclusion is likely to them, Huries told Thomas he had been in a Maricopa County appointed private defense bitter controversy" with Huries and his . work mischief by casting doubt on whether fight with a Spanish man at the library, that counsel to represent him. Huries made an oaunsel, Maybeny, 400 U.S. at 465. See state and federal judges can ever he had slabbed the man with the man's ex parte motion for the appointment of a Murchison, 349 U.S. at 137; Johnson. 403; appropriately make recusal decisions without knife, and that he had received the bite second counsel to aid in his defense. His LLS. at215. Such evidence certainly would first holding evidentiary hearings-Making marks in the fight. As part of his insanity argument was summary, comprising only this conclusion even more absurd, the defense, however, Huries later claimed he four and a half pages. In identifying why he show an unconstitutional risk of actual bias.. absence of an evidentiary hearing in this had no recollection of anything that occurred required the appointment of additional Because Huries's allegation of judicial hiae case is entirely irrelevant, because even if all between sitting in the library and going out counsel, he made only three brief points: (1) would, if proved.entitle him m federal the petitioner's allegationsweretrue, his due the back door.As they continued toward "(i]tis apparent that this case will involve habeas relief, the district court abused its process rights were not violated. Phoenix, Hurieshad Thomas pullover so he numerous civilian and law enforcement discretion in denying this claim without an/ Because this opinion misreads the law, could toss the bundle of clothes out the car witnesses": (2) "the State will utilize the wnmiiuuiy neanngbtanm. o»n \-.Jd distorts the record, and casts off AEDPA window. Thomas leftiHurles at a Phoenix services of forensic experts on the issues of deference on the basis of anon-existent bus station, where he purchased a bus ticket identification and sexual assault"; and (3) IV. CONCLUSION _£ fact-finding flaw, I dissent.lA to Las Vegas. Thomas returned to Buckeye, "[preparation for the possible penalty phase The facts of Huries's crime form the where he ultimately made contact with the will[be]in itself a time consuming, complex Forthe foregoing reasons, we remand foran * ~' backdrop for the dispute over whether police anditoid them of Huries' destination. process." To support his arguments on the evidentiary hearing on Huries's claim;of „_ Huries needed a second attorney, which is Later that evening, the police intercepted third point, Huries cited to California law and judicial bias and otherwise affirm the district at the heart of his habeas claim. The Arizona Huries' bus on the way to Las Vegas;<53 51 PM Friday, March 13, 2015 the trial in which the jurors unanimously Arizona Rule of Criminal Procedure 32.4(e) "clearlyestablished" if a state court can draw not rise to a constitutional level," Caperton v. found him guilty of premeditated andfelony and Judge Ballinger^s determination. Judge a "principled distinction" between the case A.T. Massey Coa/Co, 556U.S.868;876, murder. Nor did he raise such a concern at Hilliardnoted the applicable objective test before it andlhe Supreme Court (70S F.3d 129 S. Ct. 2252,173 L. Ed. 2d 1208 (2009) sentencing, where under then-current under Arizona law for recusal, specifically, 1046} precedent establishing that rule of (quotingFTC v. Cement Inst., 333 U.S. 683, Arizona rules; the trial judge acted alone in "whether a reasonable and objective person law. Murdoch v. Castro, 609 F.3d 983, 991 702. 68 S: Ct. 793, 92'L. Ed. 1010, 44FTC. imposing the death penalty. Nor did Huries's knowingall the facts would harbordoubts (9th Cir. 2010) (en banc). 1460 (1948)) (internal alterationiomitted), direct appeal or first petition for concerningthe judge's impartiality." In 4 and it is only in "fare instances" that the post-conviction relief raise a judicial bias describing the facts of the special action. Th" itntr trinl mil"'" der;jftjnfl is the last j Constitution requires recusal. See Caperton, claim.2 Judge Hilliard stated that theAttomey reasftppfl tjecision on this claim, and 556 U:S: at 890. 2 General had'no specific authorization to file therefore Ihe one that we must consider "Sunreme Court precedent reveals only Per Arizona Rule of Criminal Procedure a pleading on her behalf in the special under AEDPA review: See Ylst v. three circumstances in which an appearance 32.4(e), Huries's first petition for action, and that she (Judge Milliard) had . Nunnemaker. 501 U.S. 797.805,111 S. Ct. ..of bias-as opposed to evidence ot actual post-conviction reliefwas assigned to Judge made no contact with the Attorney General's „ 2590.115 L. Ed. 2d 706 (1991). Because bias-necessitates recusal" crater v Gaia7a~ Hilliard: The trial court denied the petition, office. She further noted that Huries-had not the court did not expressly apply the .491 F.3d 1119,1131 (9th Cir. 2007). The and the Arizona Supreme Court affirmed. pointed to any aspects of the trial or the first , Supreme Court's decisions considering firsl apses where a mdqe"has a direct.^" Arizona v. Huries, No. CR-99-0422TPC. petition for. post-conviction relief that when a probability of judicial bias rises to a personal, substantial pecuniary interest in Order Denying Petition forReview (Ariz. Jan indicated!bias. After ruling that the facts did constitutional level, only the "contrary to" reaching a conclusion againsl lone ot the 7, 2000):D ULJ not require her recusal as a matter of state .jaona of S 2254(dt{1);is at issue here. See litigants!.-ig (ouolmu Tumev. 2/i u s al In January 2000, Huries filed his first federal law and did not amount to a due process WilHams v. Taylor. 529 U.S. 362. 405-07 523) (internal quotation marks omitted), or habeas petition in district court and filed an 01 violation, Judge Hilliard rejected Huries's 120 S. Ct. 1495. 146 L Ed. 2d 389 (2000) where a financial connection to a litigant amended petition a few months later. The bias claim in August 2002. The Arizona . (describing the situations In Which BTF* (such as a massive campaign donation from district court determined that Huries had Supreme Court affirmed without opinion. "contrary lo" prong will apply) A . nne party In the iurtnel rrpalffli fl failedito present two of his claims to state While this state court proceeding was Here, a state court couldicertainlydraw a <^ constitutionally intolerable risk of bias. court, and so {706 F.3d 1045} Huries ongoing, Huries's federal habeas principled-distinction between the situation in ii o «n ^9 atj r.i A-n 71 I \ pie, the Court held unconstitutional a change of iudoe if a fair and impartial at issue in a decision.of the Supreme Court t Ed: 749. 5 Ohio Law Abs. 159, 5 Ohio Law 1M4 Jr($s 51 PM Friday, March 13, 2015 inappropriately involved the iudoe in the (2) "had contact with French"; (3) fee*, suggestjs]strongly that the average under § 2254(d)(2) because the state trial "accusatory process." Id. at 137. In Johnson "commissioned or authorized the responsive judge in her position could not later preside court made an unreasonable determination v. Mississippi, 403 UiS. 212, 91 S. Ct. 1778, pleading"; or (4) "provided any input on the over Huries's guiltphase.ipenaity trialand of the facts. But the majority's claim that the 29 L. Ed; 2d 423 (1971) (per curiam), the brief." Id. All four of these assertions are post-conviction (706 F.3d 1048) state court's fact-finding process was Court heldit unconstitutional for aijudge to essentially the same;:they allege that Judge proceedings" in an unbiased fashion. Maj. deficient in some material-way is-entirely preside over an individual's contempt trial, Hilliardhad some (or even significant) op: at 31 (emphasis added). While the brief baseless A where the: individual had been held in responsibility for the contents of the special made mildlydisparaging remarks regarding In considering achallengeto a state court's contempt two days after successfully action brief defendingher decision to deny Huries's counsel (suggesting that if the findingof fact, AEDPA requires deference to enjoiningthe judge from systematically Huries's motion for a second attorney. counsel didnot feel upto the task of state court decisions unless those decisions excluding blacksand women fromjuries. Id. But even accepting these allegations as true, rendering competent representation without are "objectively unreasonable," not just at 214. That same year, in Mayberryv. the concerns identified by the Supreme court-appointed co-counsel, she should incorrect. Lambert. 393 F.3d at 972; see also Pennsytvania,{706 F.3d 1047} 400 U.S. 455, Court do not arise. First, this case does not withdraw), the Supreme Court has never Schrirov. Landrigan, 550 U.S. 465,473,127 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), the involve a contempt hearing or any analogous held that a judge's sour or ill-tempered S. Ct: 1933; 167 L.'Ed! 2d 836 (2007). In Court heidithat aijudge who had been situation; in the special action proceeding, remarks alone create an appearance of bias considering this sort of challenge, "we must berated continuously by a litigant before Judge Hilliardneither acted as a prosecutor necessitating recusal. See, e.g., Liteky v. more than merely doubt whether the process finally holding himin contemptcouldnot nor sought to advance the prosecutor's United States, 510 U.S. 540,555-56,114 S. operated pronertv" Tavlnrv Madrtnv 3fifi presideoverthe contempt triai. id. at 465 interest, and thus was not part ofthe Ct. 1147,127 L. Ed. 2d 474 (1994) LJJ F.3d 992.1000 (9th Cir. 2004): "Rather, we ("Noone so cruelly slandered is likelyto "accusatory process:" See Crater, 491 F.3d ("[Ejxpressions of impatience, must be satisfied thai any appellate court~ maintain that calm detachment necessary at 1131. The special action proceeding was dissatisfaction; annoyance, and even anger, whom the defect is nninted nnl wnnlri he for fair adjudication."): see also Taylor v. ancillary to any determination of guilt or that are within Ihe bounds of what imperfect unreasonable in holding that the state court's Hayes. 418 U:S: 488, 501-02, 94 S. Ct. penalty, and involved an evaluation ofthe men and women, even after having been fact-finriinn nrncss vua«arter,nate " M 2697,41 L. Ed.2d 897 (1974)(relationship evidence only for the purpose of determining confirmed as federalijudges, sometimes Accordingto the majority,when Judge between judge and lawyer was such that whether a second attorney was necessary. display," do not necessitate recusal under 28 Hilliard rejected Huries'sclaim (in his second Due Process Clause required another judge As the Arizona Court of Appeals noted. U:S.C: § 455(a)); see also United States v. PCR petition) that she was biased due to her for lawyer'scontempt trial). Judge Hilliard's pleading "merely argues that McVeman; 695F.3d 882,892 (9th Cir. participation in the special action The fact that all these cases arise in the the respondent judge ruled properly on the 2012) (holdingithat the presiding judge's, proceeding, Judge Hilliardengaged in context of criminal contempt proceedings is evidence before her." Huries 1,849 P:2d at negative comments toward the defendant, objectively unreasonable fact-finding. Maj. instructive because this highlightsithe 4. This sort of pleading is fully consistent such as statingthat the defendant "is cieariy pp. at 27-28: The majority claims.that Judge circumstances where "the probability of with impartial adjudication. willing to lie whenever it suits his purpose" actual bias ... is too high to be Second, the record here does notshow that Hilliard's fact-fjnjjjng process was delicient CD did not warrant recusal); cf. United States v. because: (1) she relied on her own constitutionally tolerable," Caperton, 556 Judge Hilliard was "enmeshed" in matters Wilkerson. 208 F:3d 794, 799 (9th Cir. 2000) recollections in determining that her role in U.S. at 877 (quoting Withrqw, 421 U.S: at involving Huries, or that someone in her (The dissent etroneously conflates a judge's ihespecial action proceeding didnot require 47). Specifically; the probability of bias position would likely have a personal animus asserted displeasure with 'assuming the role her recusal. Mai, op. at 28. and (2) shedid reaches constitutional proportions when a toward him. The contents of Judge Hilliard's of prosecutor'"). Thus, even if Judge Hilliard .nothold an evidentiary hearinglt^ive ' judge isin a position to first accuse an brief are unremarkable. As described above, had personallypennedthe special action . Huries an opportunity to present evidence: individual of wrongdoing and then sit in the brief explains the reasons Judge Hiiliard brief, Huries did not suffer a due process . Mai, op. at 28. The majority asserts that any judgment of whether any wrong was inifact denied the motion, namely, that the state's violation: £ appellate panel would be unreasonable in committed.B evidence was simple and straightfonward, In sum, even if we were to review the due Jjriding. Judge Hilliard's fact-finding process * The state courts rejection of Huries's due Huries's counsel had noLindicated an intent process issues in this case de novo, Huries ^adequate.Mai,op. at 30:B process claims was not contrary to these CO to put on a more complex defense, and what would be unable to establish a due process With all due respect, this reasoning does not precedents because Huries's allegations, was "required to prepare for trial in this case violation. From this, itfollows a fortiorithat -J pass the straight face test. We cannot {706 even If true, do not give rise to any of these is exactly what is required of defense the state court's conclusion was not F.3d 1049} hold that Judge Hilliard was circumstances: According to the majority, counsel in any criminal case." The Arizona "contrary to" clearty established precedent. objectively unreasonable in ruling on this Huries makesifour allegations that, iftrue, Court of Appealsagreed withthis Thus.the court is not relieved of AEDPA recusal motion when federal judges, like "would show an unconstitutional risk of conclusion. deference under § 2254(d)(1), and the Arizona judges; routinely rule on motions to actual bias." Maj. op. at:31-32. These four Indeed, a fair review of the brief provides no district court's decision should be affirmed.Ill recuse themselves. See 28-U.S.C. § 455(a); allegations are.that Judge Hilliard: (1) support for the majority's assertion that the The majoritydoes not engage in this § Ariz. Code of Jud. Conduct R. 2.11(A) "participated in the special action "tenor of Judge Milliard's responsive 2254(d)(1) analysis: Instead,the majority (2009); see e:g., Miles; 697 ^a&rjfflajais r^WJSfut^>fM(Mig;Turst vvtorasoro^ tmxjBlQIJwkMJM. icek-at BEX&M I SOU LiiSk K:.M-\„, jag uffl^pif- ?• iTvR-'f Oijk^£b.;./» iF£L£fc? bJJ^V/ WAS itv^rai kitl /yf^fonifVY WTvttfr Hits i^iMvrnto(^s< au\wi5 niirmw^r .FrJ.,1 ^r.-TH,cfl^.(^rn/Ktx^rc, com- .y n/cr cMrOfl/U ^>l^ (:3,) A_n | 'if /•• %mr snip wumm)^^mjg Ftiw w em i (mmfc<^&imTy£ mmm ^AMmmimr tti^s© v^JSKMXM M V *.ir<4, 300 DaOKo^w fst-LSTt- an 5i4l0/^jTOMCjO'< '11-1^303 . .•-'•..• •Av'i'A..,. wi^eW_i2BDl5 fsirtrce MoKliA XjJ>T7¥^i ^^V«i»3»».i,",»|ilJWffiHi.mu.lj»^»l^nKa K^fITilflgfyt^^yiiii jglmtiift*&*aM sewm to tux: mU li. aao Q^^aMj^yi- PBUui!ii.jwii,w..»-i|i.|i-i--."TESi:}' -"- ^X»\i^,i^!>ti^iiijs^." 'ai AtW iSfc.J. mt O VV •Al. '.I, %', c$rW& S^^JOlt CjOLL ^-"':- £22*Sj tu£ ipft. r^ r?TT- Cfili^fm .T'>W ' ^ a "r\