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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 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 <MLED of which offense the Defendant, FLORENCE,THOMAS W is, accused by the written»complaint, under oath, of OFFICER JOHNSON,H filed before me. Herein Fail Not, but of this writ make due return, showing how you have executed the same.

WITNESSED my official signature th^ the 22nd day of April 2010 .

PeaceV Pet.

Texas

OFFICER'S RETURN' Came to hand on the J2 day of Arpfr* I / 20 /g> , at Oft/O o'clock _jA_M., and executed on the &9~* day of A/**--'•••! * 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<Fr? y^-^'c Fine Amount :S S. -j - WITNESS my official signature, this date of April 22nd , 2 01C ,

Jus e -Peacey ^Precinct :1

M® 404 S.W.3d 734 (2013)

The STATE of Texas, Appellant v. Boris ZORRILLA, Appellee.

No. 04,12-00360-CR.

Court of Appeals of Texas, San Antonio.

735 *735 Paul J. Goeke, Attorney At Law, San Antonio, TX, for Appellant.

Lauren A. Scott, Assistant DistrictAttorney, San Antonio, TX, for Appellee.

Sitting: KARENANGELINI, Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION Opinion by: SANDEE BRYAN MARION, Justice.

5^iStatejoJf«aexaasapjje^,the trial court'sgranting ofappellee's motion to quash the complaint. Because we conclude the complaint was sufficient, we reverse and remand.

ANALYSIS T-fe&ffloajpiaigt states as follows: Before me the undersigned authority oh this day personally appeared affiant, who after being duly sworn by me on oath deposes and says that ^ai\i<i^i^^^^^^^^&ms!!^!i^^i^si& that inthe County ofBexarand the State of Texas, and before the making and filing of this complaint, on this 1 [sic]day of October, 2009, Zorrilla, Boris committed theoffense ofCriminal Trespass —Habitation ^ajr^t^trffiipeji^gj^JlfgattpbSBegS^liS.

An information based on the complaint was also filed. The information alleged that "in said County of Bexar and State of Texas, and beforethe making and filing ofthis information, on or about the 1st Day ofOctober, 2009, BORIS ZORRILLA, hereinafter called defendant, did intentionally and knowingly REMAIN in a HABITATION of another, namely: Lori Green, without effective consent of Lori Green, and the said defendant having RECEIVED NOTICE TO DEPART BUT FAILED TO DOSO ...." Appellee filed a motion to quash both the information and the complaint alleging, among other things, that bothidBBaasassiaMeg^V Y cpmavS^aieiste^ andebmbiatitbecause thedocuments did not state the time and place of the commission of the offense as definitely as couId be done by the affiant. After a hearing, the trial court granted the motion to quash.

A valid complaint is a prerequisite to a valid information. TEX.CODE CRIM- PROC. ANN, art. 21,22 (West 2006); Vjllarteal v. State. 729 S.W.2d 348. 349 (Tex. App.-EI Paso 1987. no pet.). The purpose of a complaint is to apprise the accused of the facts surrounding the offense with.which he is charged so that he may prepare a defense. Valleiov. State. 408 S.W.2d 113.114 nex.Crim.App. 1966):iCMtfley *

*73S The particularity in pleading that is required for an indictment oran information'-' isnot required for a complaint, and a complaint will not be dismissed due to a mere informality. Valleio. 408 S.W.2d at 114.^coSpaiM'sM<t^gs^ ^as;theseafoj^sfloi^wia!l^filsTti#': 1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him. , 2. Itsweesf show that the accused has committed some offense against the laws of the State, either directly or that the i . ^ffiatiS&ia&goafeea^ accused has committed such offense. *" "

-Ad- 0f2 Qr^Srfcixi^-^^, State v. Zorrilla, 404 SW 3d 734 - Tex: Court of Appeals, 4th Dist. 20... http://scholar.google.com/scholar_case?case=35812403289486893(

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. M?

T^fC€!PB®EMJ^RQQa&N^^ Here, the only disputed requisiteat trial and on appeal is the third, which requires the complaint to state the "place of the commission of the offense, as definitely as can be done by the affiant." Id. On appeal, the State asserts the complaint satisfied this requisite because "the complaint states that the affiant believed that the offense was committed on the 1st day of October, 2009 in Bexar County." Appellee counters that this argument would re-write article 15.05 to require the venue, as opposed to the place, of the offense.

~JW^S^g^^^^^a^plaliS^jtieiaolfMJial^e^ySfete >:Wr3~d 599:'60r-<Tex-'Crtrrr^^^iB4y (considering sufficiency of indictment). The narrow issue beforeus is whethermerely stating "County of Bexar" is sufficient or did the State need to allege a more specific location of the habitation appellee Is accused of trespassing upon. Because the resolution of this question of law does not turn on an evaluation of the credibility and demeanor of a witness, the trial court in this case was not in a better position to make the determination; therefore, we conduct a denovo review of the issue. Id. With one exception^ we have found no casethat specifically answers this issue. However, in otJier cases, although the issue '737 was not whether "place" was adequately described courts have concluded the complaints that alleged only the county of the alleged offense to be sufficient.

Forexampte,jn;gere£y.;Sta^ h,as;good reason.itofaefeMe that in Harris County, Texas, Carlton Reyes Franklin (aka Franklin Carlton Reyes) did on or about November 30,1979, then and there commit the two.counts of the offense of aggravated robbery ...."-iSSO'S W2d 822. B22r23'{Tex^pp?»iaiiston MsfeaisWS82ia3EBoeta. Likewise, in Vallejo, the complaint stated, in pertinent part, as follows: ... ONE HERMAN R VALLEJO JR Q ON OR ABOUT THE 31 DAYOF MAR —, 1965, AND BEFORE THE MAKINGAND FILING OF THIS COMPLAINT, WTTHiN THE INCORPORATED LIMITS OF THE CITY OF AUSTIN, IN TRAVIS COUNTY, TEXAS, Qdid drive and operate a motor vehicle upon a public street therein situated at a speed which was greater than was then reasonable and prudent under the circumstances then existing, to-wit, at a speed of 45 miles per hour, at whichtime and place the lawful rtiaxirnum prima facie reasonable and prudent speed indicated by an official sign then and there posted was 30 miles per hour....

408S.W.2dat 114. The Court of Criminal Appeals held the complaint sufficient because the appellant "from reading the complaint, could ascertain with reasonable certainty with what he was being charged so as to properly prepare a defense." Id.;see also Cisco v. State. 411 S.W.2d 547.548 (Tex.Crim.App. 1967) (driving while intoxicated "upon a public highway in said Harris County"); Nam HoaiLev.

State. 963 S.W.2d 838. 844 nexApp.-Corpus Christi 1998. pet, refd) (speeding "upona publichighway outside an urban district upon a federal highway" "in the CountyofJackson"); Kindlev. 879 S.W.2d.at263 (displaying an expired license plate "in the County of Harris").

Based on these cases, we are constrained to conclude the complaint in this case, which only alleged Bexar County as the place of the offense, satisfied the requisites of article 15.05 sufficiently to apprise appellee of the offense with which he was charged so that he could prepare a defense. Therefore, the trial court erred in granting appellee's motion to quash.

CONCLUSION We sustain the State's issue on appeal and reverse the trial court's order. We remand the cause for further proceedings.

[1] Similarly, the purpose of an informationis to notifythe accused of the charged offense and its elements so that he may properly prepare his defense.

State v. Laird. 208 S.W.3d 667. 670 fTex.Apo.-Fort Worth 2006. no pet.I The Texas Code of Criminal Procedure sets forth nine requisites for a valid information, including "that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed; ... [t]hat the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation;... [and] [t]hat the offense be set forth in plain and intelligible words ...." TEX.CODECRIM. PROC. ANN. art 21.21 (5)-(7).

[2] The only case that contains similar facts is Villa/real, in which the following complaint charging the defendant with criminal trespass was held not sufficient:"[0]n (or about) the 27 (sic) day of September, A.D. 1985, and before the making and filing of this complaint, in Justice of Peace Precinct No. 3 of Jeff Davis County, State of Texas, [the accused] did then and there unlawfully and willfully commit criminal trespass Sec. 30.05 class B against the peace and dignityof the State." 729 S.W.2d at 349 ftTto*'^^afw'^^'^nnAittfangara^^ in-lha) ra^P tho rnmntaint wag filwi ,r,M •afiftr^af:^-. a^^gjia^iMflsaBRiiffegRagJ^

Save trees - read court opinions online on Google Scholar. l30?!SatJ5pKiriwiSJinh"Hd8r- Houston, Texas 77002-" A ?0 VV^S' • "" ...

A&P'TiVvji In Re Thomas Florence style' Please be ad^ed thf^ this date the Court DEHJED relator's motion Eor revaluation of relator's wr£.of mandamus in the above cause. a: 3 'r- Christopher A;. Prlne. Cleric ;c%j^^iicii^ *J p~ 3A50N MURIBtt S £ PJSMCT CLERK GALVESTON COUNTY E- rt SO*' S9TH STREET 1— g HtiBM 4001 ESTOS TX 77SS1

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AFFIDAVIT ~J5^ My name is Ms. Amber Maries Guarnelo Iam over 18 years of age and Iswear my statement is true under penalty of perjury.

I was not found about one month pregnant on February 24 or 27 2010, as I've stated in my prior statement the police report that I've read the events are false.

Ifound out Iwas about one month pregnant was on February 14, 2010 when at the hospital.

I was not found pregnant on February 24 or 27, 2010 at Ben Taub.

Mr. Garcia, Ms. Hoiiy Johnsonand Galveston Assistant District Attorney who harassed and threaten me. Ms. Rebecca Russell, Mr. Brandon Sims and the District Attorney that prosecuted Thomas Florence all knew I was no found pregnant on February 26 or 27, 2010 at Ben Taub , but February 14, 2010-The District Attorney's peoples were mad I refuse to lie for them on Thomas Florence and refuse to come to court on my own.

Ms. Holly Johnson came backto my house on January19,2011 to get my DNA after she had obtained Thomas and my baby's DNA on January 4, 2011.

I refuse to open the door for her to give her my DMA. She called my mother on the phone at work and told her I wouldn't open the door. Ms. Johnson told me if didn't open the door and give it to her she would have CPS take my child. Mr. Johnson, Mr. Garcia and the D.A. ail knew that mychild was born on October 22,2010 by my mother. Idid not call them as they stated and told them i had my baby.

I'm not a victim and I'm not a complaining witness on Thomas Florence as they stated.

Iwas told by the ownerof the Children Centerto color for the video in acoloring book. When we go in her and Ms. H. Johnson kept bugging me, but 1kept refusing until they got on my nerves, teliing me what I need to say and do. This video was done after I had rny baby not before.

Thomas wife kept harassing my mother by phone arid told us when my baby is born she was bringing her and Thomas daughter down to Galveston to give DNA. This was right before Thomas was setup by his wife to be arrested. I told him his wife was no good and was talking to Mr. Garcia and them. He did not believe me mil! it was days after when he was arrested.

I ask that my affidavit be given to the Courts and reviewed.

Thanks,

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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 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

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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

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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.

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

Jteb Jl S. Ct. at 2676 (holding that affidavit must be voided only if remaining content is insufficient to support probable cause),, Regardihg-hrsieomplaint^tha ' 'davat <ajjggedfean#i^pi3s^^ lp|)ei^tg;aej^^ ^aiSdavft^a^Feq^*^^ jndfje^lgfh^^ See Tex. Code Crim. Proc.

Ann. art. 18.01 (Vernon 2005) (providing requirements for affidavit in support of search warrant). Thus, we conclude that the trial court did not err in denying appellant's motion to suppress the arrest warrant and DNA evidence.

AppeMantA&lstFlgp^^ se^fe^aiiant <

-it~dii initfeeinamei:and--autiiorityi,of'tirie.SlatesGfrTexas ndrconcltideAwith- sagam •• igriii :State." Ajfeys^gyierA^ indictment, njgri:#aaieoigiplainfe" See id. aft. 1.23 (Vernon 2005). Appellant's indictment contained the statutorily required language.

Finally, appellant argues that the trial court erred in failing to make findings of fact and conclusions of law in denying his motion to suppress. However, appellant does not cite any authority indicating the trial court was required to do so. Rather, when the trial court does not make findings of fact, we assume that it made implicit findings of fact that support its ruling, as long as the findings are supported by the record. See Torres, 182 S.W.3d at 902.

-Ai vHhOD <?^<.^ FILED IN 1ST COURT OF APPEALS HOUSTON. TEXAS A o^ OLi 2 8 2011 CLE-R^ a ^

vs. THOMAS THOWJA3 WAYNE FLORENCE in Houston, Texas AppealedtotheFysTJud^^ AttorneyforAppenee: Attorn* r for ApP Name: Adc- ^T^XAS.7551 pnone NO, (409) 766-2355 Bar No.: 24027780 Texas, in Houston. Texas,

:s3a^ne4aURRA^ District Clerk Galveston County .Deputy Clerk r, By-.^J^UJ^^ M1vAk . rauseNo. 01-11-00822-CR day of Court of Appeals Caus ^ ^ • ** FIRST Court of Appeals. Houston.

RledintheFlRbi^ 'M.KAmNNEMCCUtUOUGH,CLER^ 2011- tDeputy Clerk

a} A?f' A*c<0 Evidence/Property Receipt Motion for Independent Examination of DNA Evidence Motion to Appoint Expert to Review the State's DNATesting Results.

State's Fourth Amended Proposed Witness List .

State's First Motion for Continuance .

State's Fifth Amended Proposed Witness List Motion for Appointment ofinvestigator Supplemental Evidence/Property Receipt .

Motion for Independent Handwriting Analysis.

Order on Motion to Recuse After Hearing .

VOLUME IV

Attoroey's.BiandonS!mst.JSay»a.«aj«w.'^«»- 625 Omitted Records • Pro^Defendantfs Objections to Stated Issues . • , „. a onii video Turned Over and Held Pro Se Motion for Court to Order the January 4.2011 Video Turn 631 That's in Possession of the Sheriff - „.lo,n th-» Defendant and BriefinSupport Pro.Se Motion forEvidenee;Favorable*> the Oefenaan 636 Thereof •"'"'. 640 Prose Motion to Dismiss Court-Appointed Counsel .

Attorney's Brandon Sims, Kayla Alien .

Omitted Records • .

Pro Se Motion for Change ofVenue .

Falsified Indictment 670 ProSeDefendant'sMotiorvfor Bond Dismissal 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 .

State Commission on Judicial Conduct • ' 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 Title Page 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

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

^^M^S#fd>» _^ndfc^ 97 P~^^^^u^^ ^Produced^theSro . ^^se*&&>-- - 99 -^^n^Mdtionl medtate^, . .

Cb) M RrojSe?Motionfor5FairandsSpeedy#fial

Pro Se Letter . • Er^Sell&fOT^^ 138 Pro Se Letter . • Criminal Docket Control Order Agreed Discovery Order Pro Se Letter .

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

State's Motion for Continuance and Request for Preferential Setting and Order.

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

VOLUME 11 pj&SeiDlferltfj^^ * 259 Pro Se Defendant's Motion for Approval of Expert Witness Funds .

Court of Appeals Correspondence State's Motion for Release of Medical Information and Order.

State's Motion for Release of Medical Information and Order .

Inmate Response Letter Notice of Filing Business - Medical Records .

State's Motion for Discovery of ExpertWitness Article 39.14(b) C.C.P. <b) AS M State's First Amended Proposed Witness List First Amended State's Intent to Introduce Extraneous Offenses in Case in Chief ^ and in Punishment Phase ofTrial State's Motion in Limine .

Seoond Amende. State's intent to introduoe Extraneous Offenses in Case in Chief ^ and in Punishment Phase ofTrial Notice of Filing Business-Medical Records . . * Motion for independent Examination of DNA Evidence .

Motion for independent Examination of DNA Evidence .

First Amended Motionfor Independent Examination of DNAEvidence and Order 307

Prose Defendant'sMotionfor Subpoena ofRecords that's Evidence in Said Cause 312

Pro Se Defendant's Motion for Approval of Private Investigator Funds ,n ^ the above Styled Cause • • ^ ProSeDefendanfeMotionforApprovaiofExpertWitnessFuUds . .

ProSeNoticetotHeCourtandSUtethatDefendantWiiibeapartofhisDefense ^ Team atTrial . 31Q Motion to Withdraw as Counsel and Order . ^ Deputy Reporter Statement . • ^ :pro,Se*Mouonfor*D^^ • • ProSeNoticetoCourt,DistrictC,erkUnderArt.1.05RightsofAccused . "• Pro-SeX^^^ . 328 SetsAsideilndfetmeht .

Pro Se Defendant's Motion for Approval of ExpertWitness Fund 339 Notice of Appointment.

Pr„se Defendant's Notice.othe Court Under the Penal., of Perjury 394 Pro Se Letter .

AdvlaS^™SoS«rmem»f«Amber.euarnelo - Evidence and Reports in 10CR1217 .

Pro Se Defendant's Motion for ExpertWitness Funds for aHandwriting Expert 407

A? (d) bS VOLUME III Pro S,Mo«»,*P^OMai*d^.^oWlam^^^Wran^d, 415 Cause 10CR1217 Pro Se Defendant's Motion to Suppress Fruits ofliiegal ArrestandDetendon 418 of Defendant .

ProSe.Defendao«aSupp«emen,~^ 425 Arrest and Detention of Defendant • ProSeDefendant'sNotioetotheCourtUnderrhePenaltyofPetiun-. • 427

Pro Se Letter . ' • • " " 435 Pro Se Letter .

Franks Hearing-Defendant's Motions Dismiss 445 Pro Se Defendant's Motion for Fruits ofIllegal Arrest and Detention Pro SeDefendantsMotion to Suppress 449 of Defendant .

Pro Se Notice to Galveston County Sheriff . •• ^ero*Moti^^ ' '^^^^^^^^^^ Department ofHolly^dhnson Pro Se Notice to Galveston County Sheriff .

ProSe Notice to Court to Take Judicial Notice .

NoticeofHearing/Acknowledgment/OrderofAsslgnment . 485 Order Denying Defendant's Motion for an Expert Witness • • Order Granting Defendant's Motion for DNA Testing . 490 Order Granting Defendant's Motion for an Investigator

Pr^Defemiarrt^^^ 496 Notice of Filing Business - Medical Records .

Third Amended State's Intent to. Introduce Extraneous Offenses in Case in Chief 561 and in Punishment Phase ofTrial • • State's Second Amended Proposed Witness List .

State's Third Amended Proposed Witness List w =i~.p~=.«Rw«itr»' 'ifve"—C! '%&: Jtf~!~~?A BEFORE ME, the undersigned authority, this day personally appeared Brantley Foster. D.P;S Narcotic Agent -•ft! *ho, after *efc| sworn, u^bn oatt: deposes}a^v^|to,he'^^^^^^^p^d^^ve:. is 4i •••>>.

..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.

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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@<aaiit.

San Antdn ar County T^xp; AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT THE STATE OF TEXAS COUNTY OF GALVESTON (b)[0.itoo^(jp The undersigned Affiant, being a Peace Officer under Ihe Laws ol'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 ofBirth: 6/26/1968: Race: Black: Sex: Male; Height: S'08": Weight: 207; Hair: Black; Eyes: Brown; Social Security Number: 46Wfj8gg^Addrcss: 5102 Avenue O •/:, Galveston Texas 77551 The said Thomas Wavne Florence is the suspect inan alleged Sexual Assault of a Child.

3. It is thebeliefof Affiant, andhe hereby charges and accuses, that: 4. Thomas Wavne Florence, in Galveston County, Texas, on or about the date ofFebruary 26,2010. did then and there intentionally orknowingly cause the penetration ofthe vagina ofAmherGuamclo. a child who was then and there younger than 17 years ofage and not the spouse ofthe defendant, by defendant's nenis.

Affiant has probable cause for said beliefbyreason ofthe following facts: Your Affiant, Detective Hotly Johnson #340. is employed as aPeace Officer with the Galveston Police Department and charged with investigating crimes that occur in the City of Galveston, Galveston County, inthe State ofTexas. Affiant has been a Texas Peace Officer for over 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 ofaChild). Affiant learned the following facts from the case report: 1.) Affiant learned fromi.readjngGaiyestpnPolice Pep.Trtment case #2010-12135 (runaway report) that on Ecbruary.19, 2010 Amber Guarnelo had notreturned home and was entered into TCIC/NCIC as a runaway.

2.) AflMtJeamed_from readme £2010-13086 thaLqnJFcbruary 26. 2010 Officer Garcia #733 caHeffThornas"Wayne Florence inregards toAmber Guamclo's" whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past when Amber Guarnelo had runaway and was able toprovide information on herwhereabouts.

ArfianLteamedi^ February 26,2010 at about 10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz staling her and Amber Guarnelo would turn themselves into the Galveston Police Department. Affiant also learned from reading e#f& A\ I(W the poliee report that Amber Guarnelo was transported to Ben Taub Hospital ft* aPsychiatric _ evaluation for drug abuse, suicidal thoughts and attempts.

1) Aifiantjearncdfrom reading case #2010-1 MCthat on February 26,2010 Officer Ciarcia #733 received a,ghpnfecall from Robbie Ciuamelo stating that while at Ben Taub Hospital apregnancy. test was administered to Tier daughter. Amber Guarnelo the result was positive. Affiant also learned from the police report that when Robbie Guarnelo asked Amber who the folher was Amber replied. "T" (A.K.A. Thomas Florence).

4.fOn March.9, 20JO 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 isat the Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through afriend. Affiant observed Amber say that she is aboutone month pregnant and the father might be Thomas Florence.

Amber describes sex as when "my everything touches their everything andtheboy part goes inside the airl part." Affiant observed:Amber say that she hasjradjiex with Thomas about eight times atdiffcrentfic^lh^ 301a Ampef saitft^ 5.) Affiant spoke wTm;T^omasFlorence;s \vife; Wahette Florence who stated Thomas told her he thought Amber was eighteen yearsold.

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 ofa warrant that will authorize him to arrest die said Thomas Wnvne Florence.

Affiant J

Sworn and subscribed to before me by said Affiant on thus the22nd day of April, 2010

J-l Kk) V,

THE STATE OF TEXAS WARRANT OF ARREST 73.

FLORENCE,THOMAS W Caac Mo. C11010008S 5102 AVE O 1/2 Bond:$250,000.00 GALVESTON TX 77550 20IQ APR 31* PH2'37 CC3 0';-."G-i353 RACEr.4^ilv/SSX,£?.^£ rRECIMCT 0.NE jAlvestqh cauMfY. rex* j •"HE STATE CF TEXAS IG ANY SHERIFF, CONSTABLE OR PEACE OFFICER OF THE STATE OF TEXAS, J?.EETi:iGS:

':'cu -ire herebv commanded to arrest *FLORENCE,THOMAS W if To be found in your country and bring them before me, a Justice of The Feace in .ind for Pet. 1, of Galveston County Texas, ac my office .it L-J22 Seaiy, Galveston, TX 77550, in said county, immediately, then and chere to answer the State of Texas for an offense against£Jfche laws of said State, to-wit: £ i: SEXUAL ASSAULT OF A CHILD 2D of which offense the Defendant, -?^= FLORENCE,THOMAS W $*£ is accused by the written complaint/ under oath, of SJ .*- OFFICER JOHNSON,H filed before me. 5 3 .^ Berein Fail Mot, but of this writ make due return,"showrng how you have executed the same. ...

WITNESSED my official signature thiy'a the 22nd day of Aoril 2010 . A s~ U sf~ ±t~y" tide, of £EM. fieace, Pet.

Just, 1 Gal;vfeston Gotmty, Texas

OFFICER'S RETURN Came to hand on the .27-'* day of /4-<?n / 20 /•£? at C-YyO o'clock j* M. , and executed on the J>'}~* day of A/>^/ / , in at crfjo o'clock _a M., by arresting the within named FLORENCE/THOMAS W , the J;?*"* day of ,\^>/~, / 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. <s.r TOTAL $ "* strike according to faces TAl KP DEFENDANT'S Afcfetf 1XHIBIT

Ut£ AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT THE STATE OF TEXAS COUNTY OF GALVESTON CniOfooogQ?

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. Thereis in the Galveston County, Texas, a person described as follows: Thomas Wavne Florence-Date of Birth: 6/26/1968: Race: Black; Sex: Male: Height: 5'08"; Weight: 207; Hair: Black; Eyes: Brown; Social Security Number: XXX-XX-XXXX: Address: 5102 Avenue O 54, Galveston Texas 77551 2. The said Thomas Wavne 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 Wavne 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 vaginaof Amber Guarnelo, a childwho wasthen and there younger than 17 years of age and not the spouseof 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 andcharged with investigating crimes thatoccurin the Cityof Galveston, Galveston County, in the State of Texas. Affiant has been a Texas Peace Officer for over years employed bythe Galveston Police Department. Affiant is currently assigned to theCriminal 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 AmberGuarnelo had not returned home and was entered into TC1C/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 thatThomas 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

JM&) JA\ & 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 #2010-1.3986 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 asked Amber 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. Ambor aaid the last time thoy had sox waa on Fobmuiv 26; 304J&. 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 ah arrest warrant be issued for the above listed Thomas Wavne Florence.

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

ffiant /

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

5, n County, Texas A

1 THE DEFENDANT: Can I approach the 2 witness, let her refresh her memory, your Honor? • 3 MS. ALLEN: Your Honor, if she's not familiar with it, ';3te'd5©s^fei»u-©d«^ THE COURT: Yeah. If she's not familiar 6 with it, she's just not familiar. She did not say that 7 she didn't remember it.

8 THE DEFENDANT: I'll rephrase the 9 question.

10 THE COURT: Okay.

12 prosetuti o^s-xn^tjh^^ ^ 13 i»~»^e^*4rairre cpnvclude;.;;wi&hrrk^A#a*nist" the*-^e*a'e§r :' s sJ-isgsna.L-y <o-i \,he 15 Sfealteei""?- 16 A^-v^Yeis^ Q--^4^, ^S^^-J^*?^^ fox.

.1'-. .". ';-T-". —— U _ ' • '•-• • ' ''-

THE DEFENDANT: Your Honor, mav I aporoacin 21 th« witness ?

22 THE COURT: Sure.

THE DEFENDANT: Exfei&ifci^^^jw^ulA^iiJ^e^..,tg„

25 v.&gs^s&Iidfe'^'isa»n-itVA..

A ^<$3) J$ / 174

i •M:S^sf^ALi.E^^?>#jD.efieadan*isiii.l?<u _( 2 THE DEFENDANT: Yes, ma'am.

3 MS. ALLEN: You're going to show i t to her?

5 THE DEFENDANT: Then I'm going to submit it into evidence.

7 THE COURT: One step at a time.

8 ..^gf.^s^YgTHB-AD^ if. you s€:^;^fa:dore|Sg.ccrop-Ly* 'wit<-h: ^A^ta^el-e -•lr.-*2-.3%

12 --THE-:COURT::^ Soa.s;ta:in.eA^•.**.JA^s^usfcaLne..d;,. the 13 ,o bjfi;c.t,i0:n^^ :Wfofft^sA-youx ^•ne'Xt-'pest ion 2 14 THE DEFENDANT: I would just like to ask 15 her do she —

16 THE COURT: You already asked hex that 17 question. Ask her another one.

18 Q. (BY THE DEFENDANT) You recognize the document?

21 A. It isiv affidavit and complaint for an arrest 22 w-a r-r;

23, Q. For who' 24 A.. For you 25 Q. For what charge?

^|3 Ji M'jL M 175

1 A. Sexual assault of a child.

2 0. Occurring?

A- In— are you wanting me to read, like, No. 4?

4 Q. Yes, ma'am.

5 A. Item No_fc__4__r.- MS. ALLEN: Your Honor, I'm going to object to her reading from the document that's not been 8 entered.

9 THE COURT: Can't read it out loud.

10 A- (CONTINUING) Yes.

Q. (BY THE DEFENDANT) .,-SfWMs0^^^^gm$^^fgs '^^^^^Ms^M^M^M^Sj^^-^t^:t—dat,e.?„ 13 ^•^Sa^s^on^^grwabout^Feh>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

17 ^'MS^cAL^^ 18 °^Dif-eMst^^e^eife#i^e;H We have a proper indictment" here .

And the ,.s;gyA ^h^g^r^a^i -i s not relevant.

THE DEFENDANT: Your Honor, that's the 21 only way — 22 MS. ALLEN: And the indictment complies 23 with the law.

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

A%t M

1 cause for af.fida-vit for warrant issued, for my arrest.

THE COURT: If I'm not mistaken, when the .State read the indictment, she finished with the words, 4 "In the name and by the authority of the State of Texas." That's the indictment. ^T-hdss^fei^s^^l^fa^g^^a^v-lxfe--^ L*a«fe;feg and arrest warrant. Different.

THE DEFENDANT:- ^This d's;^-docume-nt-that

•w,a-sn <"F-"r ;sti-moi?y. xx-gm ^o-H0t'hLe:ri--wxtjn-e-'sses-!.o.r -nobody .

10 .The-Stafe^gn^^ poMce T^yoTrevbD, ,tfie-jBrana* Jury -tov get-nte Indict ed»« your

13 SOUR7' • R . Sfttr.

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

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

,-,Nojs^eiLe^ak ! ^ev-aiVLgng.

20 T^tfE^DWENDANT^^^ submit ^^hxbxt^ot^:^^ P^teab^eMc'au=s;ex<a^#ida^i^., fox a-rr%ff-waf~±*mm^mmm,M ^Q;gg-v&ojtg*egmjg;^^ ari;t^xgg..edure,.,, 24 Aygux-ABg;hiox, MJ^^Aggg^g^g^^^^^^^^^^l^^^^tea^^

>a i the-re?,':^.&hea*.^a>yA; i ,• xcum-en-t-r^And it'-s •agcgelSegsgBfe..

3 THE.O:AI®T^^ak^^ 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 r ememb-exf^o%s<^^^ c a"s eA (Open court, Defendant present, no Jury) 8 MR. FLEMING: For the Court, Mr. Phillip 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.

THE COURT: Okay. There's really two 16 issues here. One issue is I'm thinking the HIPAA requirement that I order UTMB to turn the documents 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.

THE COURT: In regard to that, yes, I'm ordering you to release those records to the Defendant, But what's even more in question at this particular time 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 <o Third amended state's intent to introduce extraneous offenses in case in chief and in punishment phase of trial o State's motion in limine y • State's motion for release of medical information (Re: Amber Guarnelo) • Notice of filing business-medical records (T-Mobile records for telephone number 409-256-9442) "State will make arrangements for defendant and Marcus Fleming to view the Child Advocacy Video at the District Attorney's Office upon request AH physical evidence (i.e. blonde wig and cell phone(s)) are being stored at the Galveston Police Department property room. Please contact me to make arrangements to view the evidence before the pretrial conference.

FLORENCE, Pro Se Defendant

DATE '

USE FLEMING, "stand-by" defense counsel

DATE

llamas of Witnesses: r, IATC.VJA C. BT-ISC^v District Clerk, Custodian of Records for District CODE if 11990002-1199 !lo. 10CR1217 56TH SPH §0133507 Zo-jrt of u«it**5t.e>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<fc 147

1 first.

2 Q. So when you received on &*/~2r6~/-l-Q ~°r "2 /2-7«y4a0, you 3 did your investigation and you just went off of what 4 they told you; is that what you stated?

5 'A-tart documented •wi¥aTt-^wa^-fe<^3rd^t?p^m - 3i*p. 6 Q. So when you see me at the Galveston Police 7 Department or you bring in a Hispanic male on-,iMi|^i, 8 Si@§gs3 and you said, "Oh, you recall -- oh, you T?, when 9 you bringing in a Hispanic? It was Waaaefc;,2{4;tj^hi This 10 alleged crime happened, allegedly, W^mik. Why didn't you 11 detain me? Why didn't you question me then, if being a 12 well-trained police officer?

13 ^A^^xu-esi^^ 14 q. Y-'o'U^&aird1;*you already-received' tfoe allegationiS-Qn- 15 ^12l®pi6Q . I turned myself in at G. P. D. on $0me^i®m$ek 16 for an alleged crime, ^^^g^d?rf^:Hid*l»y«:avi^*e:n^e. You were 17 fringing in a Hispanic male. Officer Johnson was 18 booking me; and you said, "Oh, you T?" And then you 19 booked in the Hispanic male.

20 SSaW*^^?scp^fap3§^ajSe _ _- . = en-s«nfe'kisETO 21 days : :e"'MSM% : ae • 22 da,.j^ ex^jyou were .arrested for,whatever incident-— ~I i'da^^^s^^av.'e^tTh^sfirra%leg>'a " ' re* fe4-me-.-.: -I;. j'Ust- .vr$nemter^sxk±i -S^yS^^^^TPl^T^^t .'."r^_l±S±

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^ -y^»##^#e^#rt . . .

6 A?Sife^@k^y>?:5^¥f^ g^Epgpre^tw*^ that's what you are 8 telling me. A«s5fe»j8^^ ^?2~4-2{4. i-W^ils^s^^^

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

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^ . rji^a|5i^^ 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^^ Galvest©n«'GouTrty--*3"H-11"r"yo-a',,'d'on'J fe-«~- -and»yeu"--'-say;'-"You 'JE^ai^a^e^fid^^ "you g • ' 'ifor.mati.on-.- -—You 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 been the detective actually, since she was assigned to 14 the case, I guess, March. She was -- first, say, and then Mpa&xsfe*? She would have been the proper one doing the investigation you are saying?

17 A. Yes, sir 18 THE DEFENDANT: Pass the witness at this time, Your Honor.

20 THE COURT: Okay. State?

21 MR. CAMPBELL: Thank you, Your Honor.

22 CROSS-EXAMINATION BY MR. CAMPBELL:

24 .§«. - • O f f-i c e r; -~ j^st^^^^ i.nve st*g-ato'r**b^^

-M it-hese two- girls together on;, this^^daite^and txme^V., 2 ,.MR.;~,.HA-LL.,:,,r,,^,.T;h.en . i 'heaisay because he d^e's<hf£ii«k^ somebody- d--"h-im^ 5 •vS^gs^^EMJOAlS -• 1 Uth.em^ujpi.^iglit ,.h,e''i - s..itE'.

7 MR,. .'HALL: That' s , al^ready^ifi evidence-that he_.p,icked .them...up together on 2-2i6.^-l:0^••%**£&asb^s^dJKr--

10 „THEKCO.UR-- i^h/ow^-is^^t-ii-n 11 evidence? < •

13 .ma'd^eS^^^c-aifa^ 14 c*a-3?-33^l>fii^^ '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 —

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, ,-wh-itto^ks^gi&Mz^t^z^ /^T-h i s -d : tie who le - ' ^th-dri^ afeo,ut:j~th"e.AL;i sa^drrcdrdenti^suppO'S •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, " 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 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.-; ^.atr.Ofl5,?aup,fets.

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

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

• 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;,:.

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^?^ ^"fefeiieierS^^tecHfeg'Ot^p'ri'C ^^^a<Q-s-eg^te0«-gi3^sae^gffi^.^s^f^^| 3 A^•'""•••Tt-!Js:"'becaus¥-' I"'' m a 'wed1 -1 rained"' pdidtS*''"oT1"dtfir ** i tfeat. .1; .know..,=I•:, canAt. jump, the>--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:na<ij^ al^ppiice 23 repo,^4«^^a^^6Ss^^w -' • &ste$$GimB&& %% - " ..-.•;•-

25 . str:ai^g;hts>arrds:--a r.te:s.t:v.m'e;:>.

52—

2 Cpr* % rAfter^char^dng-me^with1 force'ab - ape after jp^u 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 you if I just go and arrest you. We want to document 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 referred it to CID. CID takes up the investigation then. And then there are steps that have to be followed, statements taken, tests run, that -- steps have to be followed. ^^e£J^^-i^p^mye^lA£ie..

14 @^;vh;<ftS:©.;;...,Jtofabjd^^ #3= om ^Ben' TaurS" . -FT** An'd^-'S'he'',*-g-a.w-e-^y^u--*t'.hd s informat-ibn at -the- p bidee'-'*:sta-ti©n?

17 ..A*.- -.,.-,«.lp,j,,..sir.

18 Q~..j- What ..date, -did she" give 'youAtire, into don-?

19 •ypa,„saj/ — 20 -A,x - I tadked; tc -hereon the phone. and.;sne. xold'-ne, 21 " A a

22 «@pggggWjfea* ,r?th dsa?

23 A. . If I, can '"feffiewmy1 report?

24 •-@i^%^Y*^^J^iSEA' 25 MIR. HALL^: i • ng*.*t©^©vk>-j et»t ^^KSjnsaiEesyip;^ ce_ 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, this police report was issued from the Galveston Police Department?

7 A. .-/Jliglit,. ~^ 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 you posted investigator regarding a Lisa Ruiz who was sexually assaulted by her father?

12 MR. CAMPBELL: Objection. This is outside the scope of the hearing. This is hot contained within the affidavit at all.

15 THE DEFENDANT: I object because -- 16 THE COURT: Is it in the affidavit? That's 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 of the affidavit.

21 THE DEFENDANT: Yes, sir.

22 THE COURT: This would be cross-examination 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 side bar.

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

4 period of time not to argue about your case. Just ask the questions. You have got a witness. Don't waste your time on me when you have got a witness sitting 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^ 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^ ^ma^e-'Fei^ru'ary^l^tiv.'••' ~ i t wa'srAassd^r^dpufere^^ JS^mjSr^ajEeiz. I don't know regarding this police report, the runaway report, when she was recovered.'!*S* dam-have^ per^so^ 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 Miss Guarnello by Kathryn Lanah from Juvenile Justice Department on orders of parole officer, probation officer, Sean Parish. That was on 2/19. And according to, like I said, police report 1213, she was arrested on this date. And this is the date, you know, to show that it was impossible for her to basically be on the run from 2/19 to 2/26/10, the date of this crime. So, you know, she was supposed to be gone on an eight-day run. So that's why it's highly relevant to show that if she was arrested on 2/22/10, it is impossible for her to be on the run from 2/19/10 to the date of this offense, this crime.

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

25 THE COURT: Just what's your question?

J<d&) ^T^p themselves into the Galveston Police Department.

2 Affiant also learned from reading the police report that Amber Guarnelo was transported to Ben Taub for psychiatric treatment and evaluation for drugs and suicidal thoughts.

6 Y^:u^sayJ3y^ti*#g©I^^ G. -P . D i.^qas.e,.,report No'-. -.i-3 9B6 ,; ataA am-?

8 A^sS^fiYeiSYfSs^irr1?: 9 Q. -. And-yoii said fehat- -fimbep-'-Guarnero,.. after -.reading /.

10 J: his,-.ppi:ic,e^^ep,o^ts;j^fe%;at^Apbe:fey3^a^p^i<t^p3*^^ \ , was^ trans.p.o : i^Ee-brua-ry At-he *2 6 th"? - 12 iAviE-A5fe^P?S!fel]y; 13 THE DEFENDANT: If I could get some information, Your Honor.

15 MR. CAMPBELL: Your Honor, if the Defendant is returning to the table, we would ask he remain there during the questioning.

18 THE COURT: Here is the deal, Mr. Florence, if you don't need to be up here to point to separate things on your exhibits, then do your questioning from the table.

22 THE DEFENDANT: Yes, sir.

23 THE COURT: If you heed to, to point out certain things on exhibits or to present exhibits to the witness, then you can approach.

Jr, l them.

2 THE DEFENDANT :. ^J^^ojoi^j^^

4 THE COURT: Okay. Any objection?

5 MR. CAMPBELL: No objection.

6 THE DEFENDANT: I am ready, Your Honor.

7 Q. Miss Johnson, we are in Paragraph No. 2 of the affidavit where you say affiant. After reading the police report, did you do your own investigation, ma'am, or basically just blindfolded what Garcia stated in his police report regarding this case?

12 tA^vsls^dd^^ but I also had to refer to officers' prior reports, which 1 used in my investigation.

15 0. -" SoV i3asd'G'a'liiv-Ti!-"syoti*s*ar.e -saVixTg^^tha-t^-yaa -bas-ica-ily

18 -.Q..... .SO:..y.o.u„.xStat^«^h.a'vt^»AmfeStE^w.enfe-

20 A^^Ji^^a^OTding ^tbtpb'lid - - Jye.s 21 Q.. _ Miss, Johnson," .you' 'did" an investigate egarding this^case?-" -.T4iat \s.>a- !!ye'sr . >?, "f .ma '-am

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 like to go to *Eix^di^it'SNlf¥*i}^

5 THE COURT: Okay.

6 THE DEFENDANT: cT^avje^gia&iamaa^ ©s§spt»S>^§S«fe so we will be able the understand it better. On this police report -- 10 THE COURT: No argument. Ask questions.

11 THE DEFENDANT: May I approach, Your Honor, to show her.

13 THE COURT: Well, only if you think she knows anything about that. That's a report that, unless I am mistaken, she doesn't know anything about.

16 THE DEFENDANT: But it's the report where she did an investigation.

18 THE COURT: Is that the hospital record that you are about to show her?

20 THE DEFENDANT: Yes, sir, where it said, Your Honor, •tefe4-shs-tee'p^*^^^

24 th<*H*g?isfes .

25 THE COURT: I know where your argument is

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

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

4 J3j|^Ta;ub;^e;s§>i^^^ tlie~-i-4th -or- February the 22nd and prior to - - let-me .r,epfaraS«''Hit;:v^AA^^ d#^Md^;S'^Gua;rhei^f ever go to :Beri ATaul? pri;o;rv;;,tOL^/^£i/JL0^^ treatmeati?

9 A:-^"^;Afea5S^AnokkA^ 10 Q-__i:.Qji^Z2JLZ4Ja^ ^•P^P^-fe0.^--^^* 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 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 ia^e'Stdaatipn in..crJh.i.s^ .^^^sof^t^^a ",.",.,-, cc - • c.t^Attorney tefrat^mbe%-Guar-nei£;,.^ t^i:sj^hg3ges?;dat^ uncover 'any^doci i : ,f rpm-.2./2 6.?

1 ,.A_.__-Jiajyr^^«^ date.?,.- :-rAis-:-thatAwRat'"•the-'questdon -ds?

3 "Qjv. ..:i*>ami^^ d^xesitedtg^*^®^ '^.ajuJ3i*#eie##s ?

7 Q. _-_fio^Jaavk, ,did^y.o.u-Jcaao^;-Ambe%GMr.nelp.^went,±p^.the 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^<ii.dA;re^a,rdijig/ - ase?,

15 wauld ^f,asLs-±*y"\a- -p®i~x*te^r..epA3rt PF 16 Q. Affiant states in Paragraph 3, after reading 17 police report ^5BmB^^^S€^^B^sme^mBmmi^ Officer Garcia 18 received a phone call from Robbie Guarnelo stating that 19 while at »ew>T;arab^®s;pd^a^^^ 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

.25 -she-, did-;

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 -- ,he didji.4t,,.Jbjin£ the. yd-dde^^^^i-l^a^e-gbt^the "vided down marked-, as-^a^-^of far. ^ofi.j.p.roof---be cause'-"nd'wfee- in-this' / video does it.-..state- that 8 THE COURT: So you are through with this witness, right?

10 THE DEFENDANT: No, sir, basically not yet, Your Honor.

12 THE COURT: Okay. You want to introduce something through this witness?

14 THE .DEEENDANT-:^.~Ye^,_^:,sd.r^^^ 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 Adv^ea-Gip^eafe-e-r---where- the:~a'f'fialTt~~s-tatej^fthat-^Ambe'r stated--thatf "she-'was- sexually-as:sa:feFt?efa^n^^ , the date"-6fr?this ..charge>.that;-..L.a:m-••.c;har.ged^with^.-and nowhere in this -video does'---- this^statement :«is^made no-wirere„;in-the :wideov -•- :Ahd_this--is-~the^Abasdsmf;o.r..-the arrest warran-t. ,stating...thatA I«.-c©mmitted_ithis. crijTia^on tHi s -dateAA£Your- 'Honor ; 25 THE COURT: Okay. Go through the predicate and present the video to the Witness.

2 THE DEFENDANT: Your Honor, we don't have possession of Amber Gaurnelo's video.

4 MR;.. FLEMiNG::: "'He waS&B:^^o^i^^W&Wac^e^%^t'o 5evddeneel7:t-he^_vd4eo of- Amber.Gii§rne1o^,^wj^efe^lu&^. State (thaiSv.-JS^ )7 even .,frbm .tinWeWA'F-Ea'-nfcsrgg^ 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^

2 ,Asagssi^§hay^ndt,_ rjeyjewed .t-h i safi^isoakl^am&not::^s^rveaJ^hatAs^ Q*aMtga.^..i^^ wd^fcti'o.utiiwate-h.dn.g^i.t„... AL^don.-'-1 .. kn.ow.ii-i-4E---ha=ve inotsseen. -this.

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

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

10 p^Ft^iie^a-r-^lN^V^ h^3ag^aiLo.^e:iBB»Ecsg£^ 12 THE DEFENDANT: Your Honor, is it possible 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 objection to it.

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

19 THE DEFENDANT: There were some other witnesses. May I approach, Your Honor.

21 THE COURT: Sure.

22 •$H#^E^N12ANT^S2^

23 ,wit.n.e^saas:Lt:hafeto tnw/ri*tei£#he*-s:u^p©e-na-iwith- -Bega^^^S

4 PHE "COURT-: [ your attc -y._t.hat qt(lejstdl©n?

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

10 i*is3Sr^2fe?

11 THE COURT: Are those Ben Taub records -- 12 MR. FLEMING: The certified copies are already in the file on the report.

14 THE COURT: And they had been on file for more than 14 days?

16 MR. FLEMING: Yes, Your Honor.

17 THE COURT: So they are deemed as being accurate records because they have been on file for a significant number of time, oyer 14 days; and they have the introductory letter saying that the custodian of records has filed accurate copies of those documents.

22 iJIHE^EOSJEi^MDAM^

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

25 TfH#¥fG©.U-R,^^^ e

Jfb§

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 «se^d~d'.en-s;e^im»?st^^ .

3 MR. FLEMING: ^T^&;f^^^:^^W&WdPf^a^T^'^^&^-^ai^ t-Exhd'bi-t32!1.

5 THE DEFENDANT: No, sir, not the Franks 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 ?

j^^^^ 24 Q. So could you please tell the Court, you know, why 25 you filed this affidavit stating that you witnessed . ! !

JfM «^>

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

4 MR. CAMPBELL: Objection, argumentative, Your Honor.

6 THE COURT: I will allow it.

7 A. I was mistaken on the date. And at that time I believedthat after watching her interview the first time that it was c3n__Efi±>.ruary 2 6-fc*rT~ 10 Q. (By the Defendant) So you are saying, ma'am, that you are mistakenly got me arrested on an_incident, you are saying you witnessed Amber state that I sexually assaulted her on 2/26/10? That's what you are saying, you made a mistake?

15 MR. CAMPBELL: Objection, argumentative.

16 THE COURT: I will allow this question, but we need to move it along.

18 THE 'D-E-^MfeMj^^S^gj^^^^^^f^^^^^^^l^^^g 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 ^^0^t^Mi^^^six^^^eW^^^::^^M. And now I see that

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

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JvUOLcML JOtSfTsarr M3BT CMf JWK) kjw uajlcss hn# <juutpl # mmvt rmn •JL' oK4^ Jm PM Friday, March 13, 2015 defect is pointed out would be unreasonable in > 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 <J >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 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 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 <nf h""1—•' prn/rf " rp«y,lr»H•"l„ „„„„irt Hip""""™*" . ninnino. bitter controversy with one of the, court decision conflicts with the U:S. Supreme defendant, or which might lead him not to hold litigants, or becomes so enmeshed in matters Court's precedents. the balance nice dear and true between the , involving a litigant as to make it appropriate for Opinion State and thp ami««l denies thp acrji<iPrt d,i|e Criminal Law A Procedure * Trials* process of Iqyv Defendant'sRights * Right to FairTrial Opinion by: Dorothy W. Nelson Criminal Law A Procedure > 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 ca<jff • unfairness has no mechanical or static definition. develop the factual basis of his claim in state bias andineffective assistance of sentencing . The U.S. Constitution reouires recusal where the i. It cannot be defined with precision hecansa, court as requiredby 28 U S.C.S. § 2254(e)(2), and appellate counsel, and in finding various prohahility of actual bias on the part of the iudoe (. circumstances and relationships must be an evidentiary hearing is required if (1) the Claims procedurally defaulted Wa remand or decisionmaker is toohioh to be .considered. , petitioner has shown his entitlement to an for an avidantiarv hearing on Hurtes's claim cnnamiitinnailY|o|^rable. The Inguirvis objective. evidentiary hearing pursuant to Townsend, and nf indicia! bias but otherwise affirm the Constitutional Law* Bill of Rights* (2) the allegations, if true, would entitle him to - district court.

Constitutional Law * Bill of Rights* Fundamental Rights * Procedural Due relief. A petitioner who has previously sought Fundamental Rights* Procedural Due Process * Scope of Protection and been denied an evidentiary hearing hasnot [Background Process* Scope of Protection Criminal Law A Procedure * Pretrial Motions failed to develop the factual basis of his claim. Hurlesi on parole after serving nearly fifteen * Disqualification A Recusal A09CASES A09CASES C2015 Matthew Bender &Compam*. Inc:. amember ortheLexisNexis Group. Allrights resened. Use ofthisproduct issubject tothe £2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Croup. Allrights reserved. Use of Ibisproduct is subject tothe restrictions andtermsandconditions of the Matthew BenderMaster Agreement. restrictionsand terms and conditionsof the Matthew Bender MasterAgieement.

-A 4-4 >45 M¥ 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 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.

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51 PM Friday, March 13, 2015 the district court denied the remainder of adjudication of a claim.on the merits-resulted Anunreasonable application offederalilaw the errors had some conceivable effect on Huries's claims on the merits and certified in a decision contrary to or involving an results where the 'Ihe state court identifies the outcome of the proceeding;' Counsel's four issues.for appeal to this Court. unreasonable application of clearly the correct governing legal rule from errors must be 'so seriousastb deprivethe II. Jurisdiction and Standard of Review [Supreme Court] cases but unreasonably established federal law, or thatthe state defendant of a fair trial, a trial whose result is applies it to the facts of the particular state court's decision was based on an reliable." Richter, 131 S: Ct. at 787-88 We have jurisdiction pursuant to 28 U.S.C. § unreasonable determination of the facts, we (quoting Strickland,466 U.S. at 693, 687).

2253. We review de novo the district court's prisoner's case," or if it "either unreasonably extends a legal-principle from [Supreme evaluate the claim de novo, and we may denial of Huries's habeas petition, and we consider evidence properly presented for the "The standards createdby Stricklandand review the district court's findings of fact for Court]; precedentto a new context where it [AEDPA] are both highrydeferential, and should not apply or unreasonably refuses to first timeinfederal court. Pinholster, 131 S. clear error. Brown v. Omoski, 503 F.3d Ct. at 1401. when the two apply in tandem, review Is extend that principle to a new context where doubly so." Richter, 131 S. Ct. at 788 1006,1010 (9th Cir. 2007). We review for abuse of discretion the determination that a it shouldapply." Williams, 529U.S. at 407; III. Discussion (internal quotation marks and citations see also PaneW v. Quarierman, 551 U.S. omitted). In considering (he state court's petitioner is not entitled to an evidentiary A. ineffective Assistance of Counsel 930, 953,127 S: Ct. 2842,168 L. Ed. 2d 662 denial ofHuries's IACclaims, "[fjhe pivotal hearing. Stanley v. Schriro, 598 F.3d 612, (holding that AEDPA does not require Huries brought various claims of ineffective question.is whether the state court's (9th Cir. 2010). Because Hurlesfiled his habeas:COurts to await "some nearly assistance ofcounseii("IAC") in hisfederal application of the Strickland standard was federal habeas petition after 1996, the Q Anti-Terrorism and Effective Death Penalty identical factualpattern"before applying a habeas petition, all of which thedistrict court unreasonable." la. at 785. We do not ask, in LU clearly established rule: nor does it prohibit either dismissed as procedurally defaulted or the first instance, whether counsel's Act of 1996 (AEDPA) governs this case. "finding an.application of a principle denied on the merits. performance fell below Strickland's standard Lindhv. Murphy, 521 U.S..320, 336,117 S. unreasonable when it involves aset of. facts because '"an unreasonable application of Ct. 2059,138 L. Ed. 2d 481 (1997). To bring a successful IAC claim, Huries different from those of the case in which the federal jaw is different from an incorrect AEDPA places limitations on a federal principle was announced") (internal must show counsel's deficient performance application of federal'law.'" fd. (quoting court's power to grant a state prisoner's quotation marks and citations omitted). We and prejudice. Stricklandv. Washington, 466 Williams, 529 U.S. at 410). We must "guard federal habeas petition. Cuilenv. Pinholstet, cannot grant relief unless the state court U:S: 668,687,104 S: Ct. 2052, 80 L. Ed. 2d against the danger of equating S. Ct: 1388, 1398,179 L. Ed. 2d 557 cameito a decision that was objectively 674 (1984). Deficientperformance requires unreasonableness under Strickland with (2011). When a state court has adjudicated < unreasonable. Williams, 529 U:S. at 410. a showing that trial counsel's representation unreasonableness under [AEDPAJ.... The a claim on.the merits, we may grant relief fell below an objective standard of We cannot find that the state court made an question is whether there is any reasonable only if the adjudication of that claim "(1) reasonableness as measured by prevailing unreasonable determination of the facts in argument that counsel satisfied Strickland's resulted in a decision that was contrary to, or professionalinorms. Wiggins v. Smith, 539 deferential standard." to. at 788. We are this case simpty because we would reverse UiS. 510,521,123 S. Ct. 2527, 156 L. Ed: involved an unreasonable application of, mindfuj that a "state court's determination in similar circumstances if this case came 2d 471 (2003). "A court consideringia claim clearly established'federal law, as that a claim lacks merit precludes federal mm. before us on direct appeal. Taylor v. of ineffective assistance must apply a 'strong determined by the Supreme Court of the habeas relief so longas 'fairminded jurists Maddox, 366 F.3d 992,1000 (9th Cir. 2004). presumption'that counsel's representation United States: or (2) resulted in a decision could disagree' on the correctness of the Instead, we must be "convinced that an was within the 'wide range' of reasonable that was based on an unreasonable state court's decision." to. at 786 (quoting appellate panel; applying the normal professionaliassistance." Harrington v. determination of the facts in lightof the Yarborough v.Arvarado.54% U.S. 652,664, standards of appellate review, could not Richter, 131 S. Ct. 770, 787,178 L. Ed. 2d evidence, presented in the state court 124 S.jCt. 2140.158 L. Ed. 2d 938 (2004)). reasonably conclude that the findingiis 624 (201.1) (qubtingiSfricWand, 466 U!S: at proceeding." 28 U.S.C. § 2254(d). To supported by the record" before thestate 689). Huries bears the burden of showing 1. Procedurally Defaulted IAC Claims determine the relevant clearly established court., fd: To find the state court's fact finding "that counsel made errors so serious that federal law, we look to the holdings, but not The warden contends that Buries processdefective in a material way, or, counsel was not functioning as the {706 the dicta, of the SupremeCourt at the time procedurally defaulted five of his IAC claims.

03 perhaps, completely lacking, "we must more F.3d 1031} 'counsel' guaranteed the the state court adjudicated the claim on the We agree and find federal review of these than merely doubt whether the process defendant by the Sixth Amendment." merits. Terry Williams v. Taylor, 529 U.S. claims barred. operated property. Rather, we must be Strickland, 466 U.S. at 687. To establish 362i 412:120 S. Ct. 1495,146 L. Ed. 2d 389 satisfied that any appellate court to whom prejudice, Huries must show a reasonable The relevant claims include trial counsel's (2000). In considering whether the state the defect is pointed out would be probability that "but for counsel's failure to locate a key guilt phase witness court unreasonably applied clearly unreasonable in twirling that thestate court's unprofessional errors, the result of the and appellate counsel's failure to raise (1) established federal law. we {706 F.3d 1030} fact-finding process was.adequate." Id. theidenialof a request for neurological are limited to the record before the state proceeding would have been different." fa. at court that adjudicated the claim on the Ifwe determine, considering only the 694. "Areasonable probability is a probability testing, (2) the consideration of improper merits. Pihholster, 131 S. Ct. at 1398. evidence before the state court, that the sufficient to undeimlne confidence in the victim statements, (3) that, generally, outcome." Id. "It is not enough 'to show that Arizona' death penalty statute fails to narrow A09CASES 9 A09CASES f:2015 Matthew: Bender &Company Inc.. amemberof theLexisNexis Group. Allrights resened. Use ofthisproduct is subject tothe C 2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Group. Allrights reserved. Useof thisproduct is subject 10the restrictions and termsand conditionsof the MatthewBenderMasterAgieement. restrictionsand terms and conditions of the Matthew Bender Master Agreement.

^4? >5Q >3/ 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 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> 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.

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J?^ -* 53 JV54 ^V33 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,<M47arui7iv habeas:intervention. Huries, 914 P:2d at _l - har "Ihe "floor estahllBhert'hv the Due to be adequately implemented."' Caperton. We now turn our attention to the matter at 1299-1300. While AEDPA "stops short of Process Clause cleariv requires a 'fair trial in 556 UiS. at 883:84 (quoting Withrow 421 hand Havinn catalnniied theSuprenremeV imposing a complete bar on federal court a fair trihnnal' before a iudoe with no actual U.S. at 47). Due process thus mandates a Court's cleariv established judicial bial relitigation of claims alreadyrejectediin state hiaa anain«t the defen^nt or interest in the r "strinnenf mla" that mavsometimesj rmiHirft jurisprudence and being mindful of the court proceedings .. ,[i]tpreserves authority niitrnmo nf his narticitlar case." fd. at 904-05 recusal of iudoes "who have no actual bias limitation.; AFnPA"nlacep ppus, WerHU3l to issue the writ in cases where there is no (quoting Withrowv. Larinn. 421 U S 35 46. and who would do their very best to wekih flftlftfmifm whpthfjf.l] possibility fairminded jurists could disagree ,95'S. Ct. 1456. 43 L. Ed. 2d 712 (1975». the scales of justice equally" if there exists 2- _fteiiMiinJduf]e3.'s.iudicial bias claim: We that the state court decision conflicts With The Constitution reouires recusal where "the probability ofunfairness:? Murchison. 349 ^\ focus our inquiry on Judge Hilliard's denial of [the Supreme Courts] precedents:" Richter, probability of actual bias on the part of'the U.S. at 136 Rut this risk of unfairness has -aMuries's second PCR. asthat fjye-paqei i *~ 131 S. Ct. at 786. Such a conflict does not iudne or decisionmaker is Inn hinh tn he no mechanical or static, definition It "cannot miniito orrter i« the last reasoned decisionibv exist here. The state court didmot err In constitutionally tnlerahle " Wirhrow. 421 U:S. be defined with nrecisinn" because the state court on the judicial bias claim. i oenying denying tnis ctaim. . this claim. . at 47. Our inquiry is objective. Caoerton v. rtclircumstgnces andrelationships must be Barter* Fleming. 423 F.3d 1085,1091-92 A T Masset/CoafCo.. 556 U.S. 868. 881. considered." fd. (9th Cir. 2005) (citing Ylstv. Nunnemaker, y B. '"dicial Bias jT 129S. Ct. 2252,173 L. Ed. 2d 1208 501 U.S. 797, 803-04,111 S. Ct. 2590,115 j For instance, due processrequiresirecusal A09CASES IS A09CASES E 2015 MatthewBender& Company.Inc..a memberof the LexisNexisGroup. All fightsresened. Useof thisproductis subjectto the £2015. Matthew Bender& Company. Inc..a memberof theLexisNexis Group. All rightsresened.Useof this product issubjectto the restrictionsand terms and conditions of the Matthew Bender MasterAgreement. restrictions andtemts andconditionsor the MatthewBenderMasterAgreement

J64- j^S5 Jv-5^ oV57 PM Friday, March 13* 2015 L. Ed. 2d 706 (1991); Avilav. Galaza. 297 testimony in the formof her order denying no deference where written statements bv sought and been denied an evjdentiarv F.3d 911, 918 (9th Cir. 2002)). Huries's secondiPCR. Minute Entry at 2. trial Iudoe to defense counsel "were not hearing has not lailed lo devet™ ihe tarina.1 Ordinarily, we cloak the state court's factual Huries had no opportunity to contest Judge subject to any of the usual inriicial basis ofhis claim. Id. (citing;28 U.S.C § findings in a presumption of correctness. 28 Hilliard's version of events that tookplace procedures riasinncfl [n flnsure accuracVl 2254(e)(l!));iS>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<p J^sy J*^>% 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;<Huries its presumption that a second attorney is court. ^ Supreme Court provided the following wasremoved from the bus; arrested; and required in a death penalty case. As later description: returned to PhoenixWith Thomas' help, the noted by the Arizona Court of Appeals, AFFIRMED in part; REMANDED. — police recovered Huries' discarded clothes. Huries's motion for a second attorney was CI Gn the afternoon of November 12,1992, Dissent Police foundblood on theclothing that bare bones, and failed to make "a Huries went to the Buckeye public library, a matched Blanton's blood type, which occurs particularized showing on the need for small, house-type building in a residential in one percent of the population. Police also second counsel" Huries v. Superior Court Dissent by: Sandra S. Ikuta neighborhood. The only employee in the found blood matching Blanton's;type on (Huries I). 174 Ariz. 331,849P.2d 1,4 (Ariz. IKUTA, Circuit Judge, dissenting: libraryat the time was Kay Blanton. The jast Huries' shoes; which he was still wearing Ct. App. 1993). The motion made no Today the majority offers a new way to patron, other than Huries; left:the libraryjust when taken from the bus. Fourbloody mention of possible defenses, did not evade AEDPA deference: make an before 2:40 p m. Huriesthen locked the front shoeprints at the murder scene matched the discuss the size of the defense's witness unsupported-andunsupportable-assertion doors tOithe.libraryand attacked Blanton in soles of Huries'shoes, and Huries' palm pool for either the guilt or penalty phase, and that the state court's fact finding process is the back room. He stripped off her print was found on.the paring knife left at the did not specify any additional forensic or "unreasonable" for purposesof § 2254(d)(2). underwear and pulled her skirt above her .... Blanton would have suffered other technical information the defense A09CASES 19 A09CASES &2015 MatthewBender& Company.-Inc.a memberof Ihe LexisNexisGroup.All rightsresened:Useof this productis subjectto the £ 2015 Matthew Bender &Company. Inc.. a memberoftheLexisNexis Group. Allrights resened. Useof thisproduct is subject to the restrictions andtermsandconditions of the MatthewBenderMaster Agreement. restrictions andtermsandconditions of IheMatthew BenderMaster Agieement.

oVSB J*5<j ^cO jA<£/ PM Friday, March 13, 2015 would present on its own account. In short, it Court of Appeals. See Huries 1,849 P.2d at California law presumed the necessity of a Judge Hilliard and the Attorney General's provided no substantial factual basis upon 1n.1. second attorney in capital cases, Arizona office as the pleading was prepared:" Id. which the trial court could have concluded The-responsive brief explained the'basis for had no such presumption. Further, in Tumingto the standing Issue, the Arizona .that a second attorney was necessary for Judge Hilliard's determination that Huries's refuting Huries's claim that the need to Court of Appeals acknowledged that in Huries to obtain adequate representation case was straightforward enough :to be preparesimultaneously for the guilt and Fenton v. Howard. 118Ariz. 119. 575P.2d Instead; the motion simply asserted that handledby one attorney. The brief reviewed penaltyphases mandated the appointment 318 (Ariz. 1978), the Arizona Supreme Court failureto appoint second counsel would the aspects of the case that were relevant to of a second attorney, the brief noted that potentially violate Huries's constitutional had held that "a judge does have the rightto making this determination. Rather than while Californiarequired sentencing to begin appear and to be represented in a special rights because "[d]efensecounsel needs describing the facts of the underlyingsexual within<20 days of the verdict; Arizona gavea such co-counsel assistance due to the action against'him, where the judge is a assault and murder.the brief stated only that capital defendant 90 days after the verdict to named respondent," 575 Pl2d at 320, and nature of the case in order to effectively the State had charged Huries "with the brutal prepare for sentencing, as well as the option advise the defendant and ensure the that a later appellate decision. State ex rel. murder of a librarian in Buckeye, Arizona in to seek: an extension of that time for good defendant's right to the effective assistance Deanv. City Courtof Tucson. 123 Ariz. 189, November, 1992,": and listed the three cause. These proceduralidifferences made of counsel:" 598 P.2d 1008,1009 (Ariz:Ct. App. 1979), charges in the indictment. It stated that concurrentipreparation for both phases far After the state trial court (Judge Hilliard) had interpreted Fentonas establishing "a Huries'scounsel had not yet noticed any less urgent in Arizona than in itsisister state: trial judge's unequivocal right to respond to a denied the request, Huries filedia petition for Q defenses, disclosed Ihe name of witnesses, In response to Huries's argument that specialiaction, whatever the nature ofthe special action in the Arizona Court of or requested a competency examination. It appointment of a second attorney was Appeais;1 raising the same arguments he LU decision the judge seeks to defend." Huries then described the State's case against necessary to "ensure the defendant's right to presented in his motion. Per Arizona's rules 1,849 P.2d at 3: Notwithstanding this Huries: "An examination of theState's the effective assistance of counsel," the brief for special actions, Huries named the trial precedent, after examining cases suggesting evidence illustrates that its case against stated that "if Appointed Counsel believes, a narrower reading of Fenton, see, e.g., judge. Judge Hilliard, as a nominal Petitioner is very simple and straightforward, because of her caseload, personal respondent, and the State of Arizona, Dunnv. Superior Court, 160 Ariz. 311,772 compared to othercapital cases, contrary to competence, or otherwise, that she is Pi2d 1164, 1166-67 (Ariz.Ct. App. 1989), represented by the office of the Maricopa Petitioner's assertions." The brief noted that incapable of rendering 'competent County Attorney, as the realparty in interest. the Arizona Court of Appeals held that a Maricopa Countyplanned to callrelatively representation' ofthe Petitioner, sheis judge designated as the nominal respondent See Huries /,849 P.2d at 2. In response, the few witnesses, namely ten law enforcement ethicallybound to withdraw from this case," < in a special action proceeding may file a Arizona Attorney General ifiled a brief in agents, the medical-examiner, and several and asserted that there were other attorneys Judge Hilliard's name, in which the Attorney brief for theipurpose of defending an civilians, contrary to Huries's claim that a who provided contract services for Maricopa administrative policy or practice, but "that it General explained that the presiding criminal second counsel was required due to the high County who would be able to provide imm is improper for a judge to respond merely to judge of the Maricopa County Superior Court number ofwitnesses and forensic experts. competent representation.C advocate the correctness of an individual (riot Judge Hilliard) had requested a CD Further, the brief stated that the county had Before addressing-the merits of.the special ruling in a single case." Huries /,:849 P.2dat responsive pleading in the special action, fd. s— expressedifls intent to present the following action petition, the Arizona Court of {706 3. Applying its new standing rule to the case at 2 n.2i Then-current Arizona precedent physical evidence: Huries's clothing, which F.3d 1044) Appeals determined that the before it, the court noted that because "the heldithat a {706 Fi3d 1043} judge had^the was "stained with blood ofthe same PGM case raised "a significant threshold question .-9 pleadingmerely argues that the respondent right to appear in special action proceedings, type as the victim's? his footprint in the ofistanding" thatgave the court the chance judge ruled property on the evidence before even though the judge was merely a nominal victim's blood at the library, and the 'Tact that to refine its jurisprudence on "whether-or her..... the trial judge lacked standing" to party. Fenton v. Howard, 118 Ariz. 119, 575 books returned by [Hurtesjiin the return slot under what cfrcumstances-the trial court filea briefinthe specialaction. fd. at 4.

P.2d 318, 320 (Ariz. 1978). The state at the library place him abthe scene a[t] the may properly respond" to a petitionfor Turning its attention tothe merits of the Attorney General responded on Judge time of the murder* Thus, the brief focused special action. Huries (.849 P.2d at 1-2. special action petition; the Arizona Court of Hilliard's behalf because Maricopa County, on the straightforward nature of the State's After noting that the real party in interest in Appeals upheld JudgeHilllard's-ruling: which was prosecuting Huries, could not CO case and the facts in evidence; it did not the special action proceeding was theState Because Huries's counsel had failed to take a position on the selection ofihis discuss the meritsor strength of.the State's of Arizona, the court stated that "the record make "a particularized showing" of the need counsel in the special action proceeding. case or presume that Huries was guilty of does not indicate whether Judge Hilliard, the for a second lawyer and did not "submit Huries 1,849 P.2d at 2. the murder withwhich he was charged. nominal respondent, actually authorized evidence to the trial court.:regarding 1 Turning to Huries's legal argument for such a pleading to be filed." Id. at 2 n:2. customary practice in defense of capital Under Arizona law, the denial of a motion for appointment of a second attorney, the brief Further, the court stated that from the cases," the court found "no matter that appointment of a second attorney is not asserted that Huries's reliance on California Attorney General's statement at oral warrants1special action interventionat this immediately appealable, andso a petitioner precedent was misplaced because Arizona argument, "the pleadingwas requested by time." Id. seeks review of such a ruling byfiling a had adoptedidifferent rules and procedures. the presiding-criminaljudge, not by Judge The case proceeded to trial. Huries didlnot petition for special action in the Arizona Specifically, according to the brief, while Hilliard, and there was no contact between raise a judicial bias concern before or after A09CASES A09CASES &2015 Matthew Bender& Company.lnc:. amemberofthe LexisNexis Group. All rights reserved. Use ofthis product issubject lothe £2015MatthewBender &Company. Inc.. amemberofiheLexisNexis Group. Allrights resened. Use of thisproduct issubject tothe restrictions andteimsandconditions ofthe Matthew Bender Master Agreement. restrictions and termsandconditionsof the Matthew-Bender MasterAgreement.

Jtao jMl jV<o9, ><53 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 <J~.anartnn S.WII fi at B84 The second returned to the state court to exhaust these < proceedings were also moving forward th|s case and those in the Supreme Court occurs when a judge "becomes embroiledin claims. In January 2001, Huries filed a slowly. In September 2008, the district court precedents cited by Huries, and it is'actually a running bitter controversy" with one of the motion in the state court proceedings to denied Huries's amended federal petition on quite a stretch to hold these precedents litigants Id (niintingMayfiPfryv recuse Judge Hilliard from further the merits. Huries timely appealed.!! applicable at all. The Due Process Clause Pennsvfvanfa. 400 U.S. 455. 465. 91 S. Ct. involvement in his case because he intended The correct application of AEDPA to this requiresrecusal when-the probability of ..432.37i, Ed. ZL522 (1971))-flnteflffll to file a second petition for post-conviction CO case is straightforward. The state court actual bias on the part of the judge or Quotation marks omitted). Finally, due reliefthat would raise an appearance-of-bias determined that JudgeiHilliard's role in decisionmaker is too high to be process mioht require recusal whena Judge due process claim based on the special Huries's proceedings did not deprive him of constitutionally tolerable." Withrow v. Larkin. "acts as 'part of the accusatory process.'" action proceeding. Huries's recusal motion his due process rights. We are tasked with 421 U.S. 35, 47. 95 S. Ct. 1456, 43 L. Ed. 2d ' Crafer 491 F 3d at 1131 (Quoting Inre was referred to a different state trial judge, -9 determining whether that determination was 712 (1975). This standard is ohiective. V Murchison. 349 US. at 13T, JudgeBallinger, who ailed that there was no contrary to Supreme Court precedent for judges musT recuse themselves in ""*»» Other than those cases in which judges have basis to transfer Huries's case to another purposes of§ 2254(d)(1).4 A state court . circumstances that "would offer a possible, V* financial interests, which are not relevant judge.3 decision is "contrary to" clearly established Uamntatinn tn the average man as a iudoe . .7 hem the Si.nreme Court rases rennirinn 3 Supreme Court precedent only if "the state i. not to hold the balance nice, clear, and true recusaibasad oa aa appaaianca at hi°-_ J, •infirm Rnllinaerconstrued Huries'a motion court applies airule that contradicts the hetween the NWflft flflfl tfle aCCUM. ItlK . arise in the context of criminal contempt ^^V as a motion for change of judge for cause. •CO govemingfawiset forth in Supreme Court •M.irrhi.nn 349 f I S t r t 136 7S S P.t R73: proceedings. Caperton, 556U:S: at880 \ ...hl^h ,,n^ari.m.B„l»rfFrintinal cases or if the state court confronts a set of (disci issinn pmcerienh In Mutcmson toT Ml Fd fMyfigSSifouotinoTumevy.

Procedure 1f|.1fti. entitles a defendant In a facts materially indistinguishable from those rthto, <it> 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 <JMichigan practice in whichjudgeswould "~ hearing OT trial cannot he had hv reason nf. and, nevertheless, arrives at a result -Ahs HWJKnhinl Ren ?-Wf1fi?W order witnesses to appear peiore them, hoTa the interest or prejudice of the assigned different from its precedent." Lambert v. Judges are presumed to adjudicate with them in mntemnt flpj,then preside over Blodgett, 393iF.3d 943,974 (9th Cir. 2004) , "honesty anrt'intenritv" M/iffimw 471 IIS at their mntemot trials 349 U.S. at 134. The: In March2001,Huriessubmittedhls second (citing Lockyer v.Andrade, 538 UiS. 63,73; - 47, however, and the situations in which this Court held it iinconS)|tuaonal fora judge to petition for post-conviction relief, which was 123 S. Ct. 1166,155 L. Ed. 2d 144 (2003)). presumption is overcome are rare: "[Mjost preside over a trial in this situation: it assigned to Judge Hilliardpursuant to For AEDPA purposes, a point oflaw is not matters relating to judicial disqualification do amounted to a "judge-grand |ury," which * A09CASES A09CASES 24 £ 2015 Matthew Bender& Compam. Inc.. a memberof the LexisNexisGroup.All rightsresen-ed. Useofthis productis subject to the € 2015-Matthew Bender & Company. Inc.. a memberoftheLexisNexis Group. Allrights resened. Useofthis product is subject tothe restrictionsand terms and conditions of Ihe Matthew Bender Master Agieement. restrictions andtermsandconditions ofthe Matthew BenderMaster Agreement.

Jr-42, j*f^3> 1M4 Jr($s 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 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<F:3d at 1090 proceedings as more than a nominalparty": pleading in the special action{proceeding.by holdsfhat it is relieved of AEDPA deference (Berzon, J. & Tallman. J.) (stating that "each A09CASES 25 A09CASES U2015 Matthew Bender ^Company. Inc.. amember oftheLexisNexis Group. All rights resetved. Use ofthis product issubject tothe 6 2015 Matthew Bender &Company. Inc:. amemberofthe LexisNexis Group. Allrights resened. Use ofthisproduct issubjccl tothe restrictions andternis andconditions of IheMatthew Bender Master Agreement. restrictions and termsand conditionsof the MatthewBenderMasterAgreement.

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51 PM Friday, March 13, 2015 judge may decide for himself or herself otherfederal judges should vote on the the special action brief, Huries did not suffer same mistake corrected by the Supreme whether,recusal is appropriate"); Suever, issue). In light of Judge Bellinger's review of any vtolationof his due process rights. Court in Harringtonv. Richter,{706 F.3d 681 F:3d at 1065 (Nelson, J.) (determining the record and determination that Judge Under these circumstances, an evidentiary 1051) 131 S. Ct. 770,1'78iL Ed. 2d 624 that she need not recuse herself from case Milliard'simpartiality could not be reasonably hearing would have been pointless, andthus (2011), now under the guise of a § because of the possibility of class questioned, it seems impossible to conclude the state court was not unreasonable in 2254(d)(2) analysis instead of §2254(d)(1) membership): For the same reason. Judge that all jurists would agree that the state declining to hold one. See Hibbler, 693 F.3d review. As in Harrington,the majority used Hilliard was not objectively unreasonable in court made an unreasonable determination at 1147 ("|aj state court's decision not to its de novo conclusion that Huries suffered a consulting her ownirecoileclions; federal of the factS:C hold an evidentiary hearing does not render due process violation as a springboard for its judges regularly determine the relevant facts The majority's second rationale for holding its fact-finding process unreasonable so long §,2254(d)(2) ruling. In effect, the majority in making recusal decisions. See, e.g., that it is relieved of AEDPA deference, that as the state courtcouldhave reasonably holds that the state court's factual- Cheney v. U:S. Dist. Ct. fortheDist. of no reasonable jurist could decidea recusal concluded that the evidence already determination was unreasonable because Columbia, 541 U.S. 913,929; 124 S. Ct issue without holding an evidentiary hearing, adduced was sufficient to resolve the factual the court failed to acknowledge that its 1391,158 L. Ed. 2d 225 (2004) (Scalia, J.) is completely untenable and lacks any question." (citing Earp v. Omoski, 431 F.3d participation in the special action proceeding (explaining his friendship with then-Vice support in circuit or Supreme Court 1158.1170 (9th Cir. 2005))). had violated Huries's due process rights.

President Cheney, and deciding not to precedent. Until today, judges routinely In short, there was nothing wrong with the Harrington correctedasimiiar error:The recuse himself from a case inwhich Cheney Q decided for themselves whether recusal was state court's fact-finding process. This Court of Appeals appears to have treated was a nominal party), Microsoft Corp. v. appropriate in cases where their impartiality makes the majority's conclusion that any the unreasonableness question as a test of UnitedStates. 530 U.S. 1301,1301-02,121 UJ might be questioned. See, e.g., Suever, 681 appellate panel "would be unreasonable in its confidence in the result it would reach S. Ct.25,147 L. Ed. 2d 1048(2000) F:3d at 1065. Evidentiary hearings were holding that Judge Hilliard's.fact-finding under denovo review," and because the (Rehnquist, C.J.) (discussing his son's neither required nor typically employed. See, process was adequate," Maj. op. at 30, not court "had iittle doubt that[defendant's representation of Microsoft,in another e:g.. Miles, 697 F.3d at 1090. Today's only wrong, but objectively unreasonable. constitutional] claim had merit, the Court of matter, but deciding not to recuse himself opinion, however, raises troubling There is no rational justification for the Appeals concluded the state court must because no "well-informed individual would implications, and casts serious doubt on the majority to hold that it is relieved of AEDPA have been unreasonable in rejecting it." conclude that an appearance of impropriety permissibility ofthis longstanding practice. deference under § 2254(d)(2).D Harrington, 131 S. Ct. at 786. Equally exists"); Peny v. Schwarzenegger. 630 F:3d < This case is a particularly bad springboard Finally, evenifwewere reiieyed ofAEDPA applicable is Harrington's criticism of the 909,912 (9th Cir. 2011) (Reinhardt. J.) for imposing a new evidentiary hearing deference, the,majority errs in remanding Ninth Circuit for "overlookpngj arguments (discussing his relationship with his wife and requirement. We do not fault astate court the case tothe district court for an that would otherwise justify the state court's her involvement in the matter beforehim in for failing to hold an evidentiary hearing if.the evidentiary hearing. As the majority notes, result." fd: As in,Harrington, the majority here the course of concluding that "(pjroponents' petitioner has not identified any evidence the court must find that Huries's allegations, failed to weigh the evidence in the record contention that | should recuse myself due to 03 material to the constitutional claim. See if true, would entitle him to relief. See that made the state court's fact-finding my wife's opinions is based upon.an Hibblerv. BenedeW, 693 F.3d 1140,1148 Stanley v. Schriro, 598 F:3d 612,624 (9th process and factual conclusions reasonable, outmoded conception of the relationship (9th Cir. 2012) (noting the Cir. 2010). But as previously discussed, relying instead on an unprecedented-view between spouses.'). we|l-established{706 F.3d 1050} role "that there is simply nothing in the record, even that judges must hold evidentiary hearings Itanyihing. the factfinding process Judge no [evidentiaryj.hearing is required [ijfthe under de novo review, that suggests an on recusal motions. Finally, as Harrington Hilliard engaged in was more careful and record refutes the applicant's factual unconstitutionahrisk of bias. As the Supreme stated, "lijt bears repeating that even a reasonable than those engaged in by judges allegations or otherwiseiprecludesihabeas Court recently reminded us, it is not enough strong case for relief does not mean the of this circuit on a regular basis, because relief." (quoting Landrigan, 550 U.S. at 474)) for a federal court to identify an state court'scontraryconclusion was she received a separate opinion from Judge (quotation marks omitted, second alteration unreasonable determination of the facts, unreasonable." fa. The majority clearly lost Ballinger, a different state court judge, who in original). Rather, unless an alleged factual there must also be a constitutional violation. sight of this rule, because there is no basis independently reviewed the record and CD error "goes to a material factual issue that is See Wilson v. Corcoran, 131 S. Ct. 13,14, for its holding that the state court's concluded that there was no appearance of central to petitioner's claim," Taylor, 366 178 L. Ed. 2d 27^\&uiIP) ('federal courts fact-finding was either substantively or impropriety requiring recusal. Cf.S'rvakv. F:3d at 1001 .there is no "unreasonable may not issue writs ot habeas corpus to procedurally unreasonable. And even if Hantson, 658 F.3d 898,924-25 (9th Cir. determination of the facts" to justify relieving state prisoners whose confinement does not Huries's factual allegations were true, they 2011) (rejecting a similar judicial bias claim, a federal court of AEDPA deference under.§ .violate federal law") (per curiam). Here tnere do not form,the basis of a due process and noting withapproyal that an independent 2254(d)(2). Here.aspreviou sly explained, ViV.m iiM.iTii.'ii! ii:.nnr-nr^T-.:i claim, makingremandforan evidentiary judge determined that recusal was not supra Section II,even if an evidentiary and a waste of judicial resources-IV hearing wholly inappropriate. Turner v. necessary); Miles. 697 F:3d at 1090 (holding hearing proved that Huries's factual The Supreme Court has harshly criticized Calderon. 281 F.3d 851,890 (9th Cir. 2002). that a federal judge may decide her own allegations were true, and we deemed Judge our non-compliance with AEDPA 5 recusal and rejecting the argument that Hilliard to be responsible for every word in deference.5 Here the majority repeats the See, e.g., Cavazos v. Smith. 132 S. Ct. 2, 7, A09CASES A09CASES £• 2015 Matthew Bender & Company. Inc.. a memberof the LexisNexis Group. All rights reserved. Use of this product is subject to Ihe £ 2015Matthew-Bender & Company. Inc..a memberofthe LexisNexis Group. All rightsreserved. Useof this product is subject to the restrictionsand tenns and conditions ofthe Matthew Bender Master Agreement. restrictions and letms and conditionsof the Matthew Bender MasterAgreement.

_^(q(£ ^(Ql Jtf$ PM Friday, March 13, 2015 L. Ed. 2d311 (2011)-(percuriam) 2254(d)(1): that the decision be 'contrary to' seeks review of such a ruling by filing a Felknerv. Jackson, 131 S. Ct. 1305,1307, ("Doubts about whether Smith is in fact guilty clearly established Supreme Court law" petition forspecialaction inthe Arizona 179L. Ed. 2d 374 (2011) (percuriam) are understandable-Bui it is not the job of (emphases added)); see generally Hon. Court of Appeals. See Huries 1,849 P.2d at (stating that our decision that the state this Court: and was not that of the Ninth Diarmuid F. O'Scannlain, A Decade of 1 n.1. court's determination was an unreasonable Circuit, to decide whether the State's theory Reversal: 77ie Ninth Circuit's Record in the 2 determination of the facts was "as was correct. Thejury decided that question, Supreme Court ThroughOctober Term Per ArizonaiRule of Criminal Procedure inexplicable as It is unexplained"); Swarthout and its decision is supported by the 2010, 87 Notre Dame L. Rev. 2165, 2168-76 32.4(e), Huries's first petitionfor v. Cooke. 131 S. Ct. 859,863,178 L. Ed. 2d record;"); Cullen v. Rriholster, 131 S: Ct. (2012). post-conviction relief was assigned to Judge 732 (2011) (per curiam); Harrington v. 1388,1410-11,179 L. Ed; 2d 557(2011); Our responsibility here is clear:under the Hilliard: The trial court denied the petition, Richter. 131 S. Ct. 770,785,178 L. Ed. 2d Felknerv. Jackson, 131 S. Ct: 1305,1307, strictures of AEDPA and Supreme Court and the Arizona Supreme Court affirmed. 624 (2011);,Preroo v. Moore. 131 S. Ct. 733, L. Ed: 2d 374 (2011) (per curiam) precedent, we are bound to uphold the state Arizona v. Huries, No. CR-99-0422-PC, 740,178 L. Ed. 2d 649 (2011); Rice v. (stating that our decision that the state court's denial o! Huries's due process claim, Order Denying Petition for Review (Ariz. Jan Collins, 546 U.S. 333, 342,126 S. Ct. 969, court's determination was an unreasonable whichis neither contrary to Supreme Court 7,2000). 163 L. Ed. 2d824 (2006) (Thepanel determination of the facts.was "as precedent nor based on an unreasonable 3 majority's attempt to use a set of debatable inexplicable as it is unexplained"); Swarthout determination ofthe facts. Because the Judge Ballinger constraediHurtes's motion inferences to set aside the conclusion v. Cooke, 131 S. Ct. 859, 863,178 L. Ed. 2d Q majority's decision invalidates a lawfully as a motion for change of judge for cause, reached by the state court does not satisfy (2011) (per curiam); Harrington v. imposed capital sentence, further frays the which, under Arizona Rule of Criminal AEDPA's requirements for granting a writ of Richter, 131 S. Ct. 770.785,178 L. Ed. 2d LJJ (increasingly threadbare) fabric of our Procedure 10.1(a), entitles a defendant "to a habeas corpus."); Schriro v. Smith, 546UiS.

624 (2011); Premo v. Moore. 131 S. Ct. 733. AEDPA jurisprudence, and lays the change of judge if a fair and impartial 6, 8, 126 S. Ct. 7,163 L. Ed. 2d 6 (2005) 740,178 L. Ed. 2d 649 (2011); Rice v. 01 groundwork for other frivolous habeas hearing or trial cannot be had by reason of (per curiam) ("(T]he Court of Appeals Collins. 546U.S. 333; 342,126 S. Ct. 969, challenges totnal judges' impartiality, I the interest or prejudice of the assigned exceeded its limited authority on habeas L. Ed: 2d 824 (2006) ('The panel dissent. judge" review...."); Middleton<v. McNeil,541 U.S. majority's attempt to use a set of debatable Willi 4 433, 437,124 S. Ct. 1830,158 L. Ed: 2d 701 inferences to set aside the conclusion Footnotes The state trial court's decision is the last (2004) (per curiam) ("(The Ninth Circuit's] reached by the state court does not satisfy < reasoned decision on this claim, and conclusion failed to give appropriate AEDPA's requirements for granting a writ of therefore the one that we must consider deference to the state court's decision:"); habeas corpus."); Schriro v. Smith, 546 U.S. * Charles L. Ryan is substituted for his under AEDPA review. See Yfef v. Ysrborough v. Gentry, 540 U.S. 1,11,124 6; 8,126 S. Ct. 7,163 L. Ed. 2d 6 (2005) predecessor, DoraB. Schriro, as Directorfor Nunnemaker, 501 U.S. 797,805.111 S. Ct. S. Ct. 1,157 L. Ed. 2d 1 (2003) (per curiam); %m. (per curiam) ("[T]he Court of Appeals the Arizona Department of Corrections. Fed: 2590, 115 L. Ed. 2d 706 (1991). Because Woodford v. Visciotb. 537 U.S. 19; 20,123 exceeded its limited authority on habeas CD R. App. P. 43(c)(2). the court did not expressly apply the S. Ct, 357,154 L. Ed. 2d 279 (2002) (per review "); Middletonv: McNeil, 541 U:S. \mm 1 Supreme Court's decisions considering curiam) (reversing Ninth Circuit's grant of 433,437,124 S. Ct. 1830,1581. Ed. 2d 701 when a probability of judicial bias rises to a habeas relief because it "exceedjed] the We cite to Caperton, the Supreme Court's (2004) (per curiam) ("[The Ninth Circuit's] constitutional level, only the "contrary to" limits imposed on federal habeas review by recent decision regardingjudicial bias, conclusion failed to give appropriate prong of § 2254(d)(1)is at issue here. See 28 U.SC. § 2254(d)"); Early v. Packer, 537 deference to the state court's decision."); throughoutthis opinion. Caperton is not Williams v. Taylor, 529U.S. 362; 405-07, U.S. 3,10,123S. Ct. 362,154 L Ed: 2d 263 controlling insofar as it announces new Yarborough v. Gentry,540US. 1,11,124 120 S. Ct. 1495,146 L. Ed. 2d 389 (2000) (2002) (per curiam) (admonishing the Ninth clearly established Supreme Court S. Ct. 1,157 L. Ed. 2d 1 (2003) (per curiam); (describing the situations in which the Circuitfor"repeatedly and'erroneously precedent that post-dates the state court Woodford v. Wscroto. 537 U.S. 19. 20,123 "contrary to" prong will apply). substitutjing]" the phrase"failed to apply decision at issue here, although we do not S. Ct. 357,154 L. Ed. 2d 279 (2002) (per 5 clearty established Supreme Court law" for CD read Caperton to announce a new rule of curiam) (reversing Ninth Circuit's grant of See, e.g., Cavazos v. Smith, 132 S. Ct. 2, 7, "the more demanding requirement of § law that affects our analysis. We refer to habeas reliefbecause it "exceed|ed]the 181 L. Ed. 2d 311 (2011) (per curiam) 2254(d)(1): that the decision be 'contrary to' Caperton, however, where we find its limits imposedon federal habeas review by ("Doubts about whether Smith is in fact guilty clearly established Supreme Court law" analysis of previously established Supreme UiS.C. § 2254(d)"); Early v. Packer. 537 are understandable. But it is not the job of (emphases added)); see generally Hon.

U.S. 3,10,123 S. Ct. 362,154 L. Ed. 2d 263 Courtjurisprudence: helpfulto our resolution this Court, and was not that of the Ninth Diarmuid F. O'Scannlain, A Decade of of this matter. (2002) (per curiam) (admonishing the Ninth Circuit,to decide whether the State's theory Reversal: The Ninth Circuit's Record in the Circuit for "repeatedly and erroneously was correct. The jury decided that question, Supreme Court Through October Term Under Arizona law, the denial of a motion for substitutjing]" the,phrase "failed to apply audits decision is supported by the 2010,87 Notre Dame L. Rev. 2165, 2168^76 appointment of a second attorney is not clearty established Supreme Court law" for record."); Cullen v.Pinholstei, 131 S: Ct. (2012). immediately appealable, and so aipetitioner "themore demanding requirement of § 1388,1410-11, 179 L,Ed.2d 557 (2011); A09GASES A09CASES 30 C2015 Matthew Bender & Compam-. Inc.. a memberoftheLexisNexis Group. Allrights resened. Use ofthisproduct is subject tothe C 2015 Matthew Bender & Company. Inc.. a member ofthe LexisNexis Group. Altrights resened. Useof thisproduct issubject to Ihe restrictions andtermsandconditionsofthe Matthew BenderMasterAgreement. restrictionsand terms and conditions ofthe Matthew Bender MasterAgreement.

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