IUJWcMAM&m 14m Q&aw §f, ^a^^^m
">•••;•••'. • ' •-.uKtifM;" 4JLL- i5~;oo*9<;-cr ,;-;,;.- .^^^^
'-,-7' • '..- I : - .' ***&?"«*«
,t
: co^Utss' tock ian •CMw tiwft. tiNMEtfw&M'
Tft)fc QJM0J«r(LWO3 CJJZ^liJti. tito&MAlY- CjQMfM/e
t a-5TVTRT
use.mi mwcxvmtiT *&&?&• w Crwr?mm?s-
n^TKiMl OOMKT HIM) 15&? kOr RVfl/J Sum"DT-
VW 14TI6< J\M£!0LsMM (QVtfK TUX WOMt TQ
tSSUC mY AUGIV) IFVK)-0lwfwr twit m/fcysr aw-1 t^Hflapr*! 1 .
%jjw4+ vm/la^m^.&&& ri^r; \:aa>t &&. jackal
a tXv id ,iib^f\juM^t TV6C srwTt
'•'.-stir'^«^i^i^,:rt;c;-''--~-r '• ; ' • "•• •
TVU/Vf?! TKX^t ™CS QMS KjCT WMH#T 1>«
^tofrfoK-V' ft£ (MgEBGU^lSaplX
^ftia^yi^e^
<^iM^AjJC!yl imc
•tnngKsfajQ^ 0s) wi^a^T^MTy &£ iu^Kfrxr-
vjjMKkevhur vtowna off r?i^»"am-saMo, c£fflo nu
Tut uj^v^^fjjf^igiML .1 suifi^i c-ravn),
tgKwrtKTfejfliMBfl3iy 'SdWifo SEPfr faHi4,-frfrft/,, »W•
EXH.AI2
iffiH>-ufr •••n^r ^ m --w^pg pMvwr-
Lf^M/^5^
ivm rmo ^mi&v^mv?mr
\mM) Tc\m\Wn'rtf^WlLAm
mmm
r^vrM^ Kflu) n-rs. M40ATM tmifx_^B£;W/
MMtMi^/ KNcY)7FH$5tf
r^iaMMMaifl ngNc:^ vj/UfM^s xiM5
OT-OC lW^ WcW T>#r TM£3 UuWt5 WQMVMXW^
}^\^m)TAG/1W UjWS ) W- ®\/l£
7i\KA^UA4; 130)/ COToa SMS.
l|-»Tv"rT.ni.().nnn- •,_
viM\ Vvmxm> ^mMStdxMM^mvxM
t ^ "••;/"
\Auw \)umrc\2 miw v^hvjzv tux wimi-
^wm vmifc? \mvt oquwxm\c€v surfer-
Tu.i4T Kho ^Tffimf hmKTvmr huc ok&m k?oto
M±TTti9 mi oFra?cc c5 ve id, is&mzL^m-
'ujMoee tm£ gqw^t ins twc rKM>_cx)U^r we/o<
WUMtfS W- LQaWL CfiN CAJtf&DMJ &A) \AjAm, cKtr\J£ mofifM\, ?>vmm<
VOJk?VflWlft) CDC) :"WCT use fo'k vWtfVtiOY
ocsckjcubo o&totfwiiwaMft cxwetcRjOA) k>Y wwn~
Q-a0l5 DCCXM^fO/ fl^gi 5/9iOI ()
p?na-rn/ tiHyi-cotaacif £5swe»3/- y ^ w ) ,
wm^us) doch notmvC tG oaw^u/ wr-
tvt y*wr,i,ar\. tvx tfmftrw we/ttf nmuw to
TU£ TKtWt OQU^T Ok" ,0V) HES Y>m 5£ I^TO^ TO
atwc isr gg\M~£^ v#ktm rv^tr wx wws
eMMLOMvK TW€\5tVlJCH k^WHVCr.
CM TO 5TVfi\: TVM4T It UvlMMwr ^I)c5 kior
4ama/s tc\ caim/( f umH rt^r:*. i,-av 4s, ni^/4s.
twmms o&mrwji37 W'misc e.K, vai sota n(*, mPw--
TUCTKtMi GQMkr OK LbT GT OF kmMlA MVH^
QCSCJOcTTJQfO m DCTQCl^SmiG UiHA^TTHA: IM\
5M£
•^mmi^^
nut lxkjmmt msV i^myia^^ tuc aoo£-
tuF tfff0£tf tKl THIS CM£ THCTKWtU Q^UKfw
UGtdlurCoGY°-QMS* ©K ^^SSfe^-S
k£12_
jvuoivMaif h-^voe hN^ taawEssaocjgam
oavesE/ .ta 4fig.
il
Ai^Qtfmt
# S E ia/YA^^Vil^TO^
SkS^^
lii/iC* ' v'.;-.' • ' •;---••••;\ aa'L
rr, r, ^ n'i i ixr raMrcf TUX TK47WL
GGU/!Wl/IUW3 vt- UQU4€K cflUWr-'TX> .KW&I^ 5GVWC
VKXv
1>0d«e UA43 kA OH«€ WW&H- HT U4\aJ KJUf RK
rx£ newt QObii^r to k?£5whss cMuse loc/ema
aj\MA3ntvoc"rm^Xj\Md(K m?mfs>_uis m
w&z utim&n m& Y&dMmv to.wiwi ,
to c&uwc dp yT^m sec,JgizH^m2
j^mwas rs rtimvmxr
^ ^ avfJKncMt mini thmt
^iw^ti/wa/t
$c§ f•• *&iv0-
4%r5k^^
JHEb '--- ••-'•••-' -AaA ••'A--;\. •:- .A' A'-"-: " A . A' .
flruv-aiti4#jtjg vBcasazsy&i"^^ r/w
t?jae^
sm
Ki^QjgMJbS^^
tui-js ^M2£JMMML£& iM. J3£iMk2ik2 wvm.
m&M
pm%TxMW
VVl^^TVltt^
m)k?
£^0^5; VMM NVffT,
wfflvz' kMi¥40 fek^ to twc 47nm
mWi m cstMM {Aia!tTs\ set, » ^ f t f f l ^
sivi^-A ^{JWirAi^fi^ m^mfuf^h twz
Fu-£
T ,^\i£ Ah]&*Zb. '. :i...-- A /..A/;; .'»..•:•; ..,: •••;;•,.-'••.
K3Y •»flw£wt coxn^r nw fc? jwsM cSui^r« >.. ,
.son) ,'\^>QiL Km?ffl3KKk±iM& ioa/6€G^ao i^ruu
•r ^owcQfvj6£ft mmmAmf m mrck1 minis
vA^^uwrs. lATTVWTGG^ tW SOU Sfcis^H/it^r
F$M£OW ijlKWW'MW5&t$CS)X~'
TMC CL(G;l4c 0QO££*7 I^KK STK^f q-jpi^ vt*ug
TVXJT OJl/tS5J*$Dl/ff$Qtf tfKltf. ^00^5 fWWf
syM^aio^ sthtc zi&ML
s^ r^yaaals -MLMk uxtwj:^ oiimMjwuMAK.:^£lli
r,k tw k, (U 5cy^ MIBSl-
\j(mm? tux ir-^o-ao/s jumvmt*
ark kQu^o/g 14 jgCTc,
^etr A4(a i MiMm^
i^amt)k ggot^ si4M;;^UM^i® ^ma?
iutiflo&y oj€fW¥ mi4f tot wmitM
.__.__, ^A3T^ ^:MYM:a4^
•' i&n v45 vy\am\ovtvso ok (^rsr
TkSTtXC OK ATVW^OC TO CK^eM 4dC/d5D
TKW£ VtKJ^ CQt^vJT C£KY uy^5 5t3Uf :T8 B41 >00,
•%Gsk'jJWW- lowMKcftp B.-ao-aoitf.-y
1 +o bbl3ln COfics 0 f Jerve, , pen worK -for my
Sb/f,T' ?-? 7r/^t€f7Cc. "•' '*>r Luho - i
Or? mz~ 3$ She footed ^h<^ p&/?h& + X needed Bn J by
-/•hatA\irn& SnD±he,r tvot^ir Cdrnc 4hai^>^H^
hzcfc dn d u)lib oak looK'img34 +h% pa-p£.r tooilijhzcM**>
S3\d\U^d\ AhM h 3vt4K P3|o ek^orKed I. feJcl
HmShie, Vf?e uj uvh 3*,.JL- netting **&s 3 MrS+ 4- o ni 6
b$em$& 5h e TlWein to0 k*§/:- vfrfh e, pep e r uj0Kx
Ztyfy4bj<.it on Fr! dt:4y lo/tr/zoM Qr? Aa$K* papers sfa+ln.q- +h<>f ci;dn'-L
Qv£%h* piper tvotK dmi+'tl^$P Sic S3\d nO^hen
?Ai;-jus+ wro
Tide dumber 70/? J7/0 Mtfrt sracsn t/fflo?
Mb)
to wYKA^tKouS tnraes #cutna? to wm%m
i4u^ hKieesrG>/ JJg HM Tt^f KJHTWfT7fKT
HCSC
DOCUfMMS mJ# ^eiU/GJ TO MYkMfthffiC
sj^cg€cy Tucwim u). fkmwcc
14J
£7(3 / e-/o
^—aoi4
rj*m SEMI ffl r^ ^T^^f^y
•££•»•
^.f
1 A -*^'--^w.Jl>-, JLX-, -.
rife Qgv9> M Ct)
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)
>
Jrl£)
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£)
tuc am: ru rAwra-y m m-.ka axes twC \/QFk? wrw
ru/e smrc wrrewm? ro rvtsJj&vw? YWamur. ts-vusr-
W5 WW VW MWArWl .HO*
«3w&y oooBtr 2?u 2fiio >• sec vti^o u^'Sf™-
wow*v.go©^^^ixivflOiao^
StVSHQOBS'CDB l&y TV« SVnC iBSdfi&QM-'4&SL «***
JK J5CW
^5 CO
L.
;if>mhjfjr GuAri/wcLo iAouiA ;^tt? fttonk,
IT) flv JvcuK 'And d/Jftr/V-tW$Rd3&
•)\\ack 0)fi&v"Ljc~-o*icAi>- ^HW^jp
k>oc CA-.ga-L'-naf th-ohncKj '^f^1
://jo h,^3 jpfc/ w'-'j r^)rn 7t ir/S.te ^^ This
470
j\5 (d)
\ffr(\\)JUf Go(xrn^[o a&mv-o\sh
\mo)vis mi och-^ i do nov lx^sw
471
J5«i)
m vxxm
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:^
^^^S^^^fe^ U
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
1-ZflKl S^UWL mSAUUT VTrJO Qfd* ZMQ-l3T14> ZDKHS^C? ,.
-t^, ^jvt wJ rare/were or ^y?afe-z.-z-i-i.fl e/J^«wfe«)8^
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
igo\Mf 6(m Dtmtcf
10CR1217^83-4
^r^H^fTH0W)f5(j314MF[jtJ)€aieC44..
• mm
- mJi cf v?6€\iw \mv srm wvtr tkoc
m Tvm mmruim m-x,
•StXr TM.C. A Itf?o .WMWftKK,,. XT.(IP VFK. WT7/,
,rfc amors US VrT.)+m£ PWcttAjimi.m&-
••••-' • '•',/? tftrCkiSMi, .taI LS a ft'vFH«r vntMl-:
Wfrgf/
Lx]ftftt/gS HJAS KH^Rf HO CiW( i/HR? (¥ JMk22£*
UKcuioe w- v%m's FrtPLuwcm cxse/ rut in
k7wv ieuLf Moircc'wovrsOM -lawies; nioy cow-
Ptmxr •om •nrt^K. of t>k kq\)}#k, op vm mo-
raw to leccuy:. tuuz ;thc weowcsD5M5 of
^Ji^ jwgSKxm jumz tor nc vrvvwussim-
JM. JvUOLcML JOtSfTsarr M3BT CMf JWK)
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
C 2015 MatthewBender& Company.Inc..a memberof the LexisNexisGroup. All rightsteseived.Use of this productis subjectto the ©2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Croup. Allrights reserved. Use of thisproduct issubject tothe
restrictions andtermsandconditions of the Matthew BenderMaster Agreement. restrictions andtermsandconditions of the Matthew BenderMaster Agreement.
J&h J, 43
nswt'sdi&n
Jv4) >4f
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
£2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Group. Allrights reserved. Useofthisproduct issubject tothe C 2015Matthew Bender&Company.inc.. a memberof IheLexisNexisGroup. AUrightsreserved-Use of this product is subject lothe
restrictions andtermsandconditionsof the MatthewBenderMasterAgreement. lestrictions and tenns and conditions of the Matthew Bender Master Agreement
t-oC-to
J^O Ml
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 ~~
A09CASES 17 A09CASES
Z2015 Matthew Bender &Company. Inc.. amember ofIhe LexisNexis Gmup. Ailrights reserved. Use ofthis product issubject tothe £ 2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Group. Allrights resened. Use of thisproduct issubject tothe
restrictions andtetmsandconditions of theMatthew Bender Master Agreement. restrictions and termsandconditionsof the MatthewBenderMasterAgreement: . .
Jr5% 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\