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

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

Case Disposition:




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

                                                                                                 //
                    AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT

    THE STATE OF TEXAS                                                                                    AIM)
    COUNTY OF GALVESTON


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

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

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

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

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

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

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

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

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

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




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

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

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




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

           YOU ARE HEREBY COMMANDED to commit to the jail of GALVESTON

      County the body of FLORENCE,THOMAS W

      on the charge of SEXUAL ASSAULT OF A CHILD
                                                                                     rixs*

      The said defendant may be released on Bond Amount; tr<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




                               //.n/l„,M,lI,/,/„„/i,jt,/||„„)l/IJli„ij1,(„,;i/i,1,i




                                                                                                 —-4




                                                                                                       261
                                             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,




                                                                           REYNALD0 MARTINEZ
                                                                           MyCommissionExpires
                                                                            November 12. 2017

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                                      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?                                                                          ,.
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                                     CAUSE NO. I0CR1217                      .r-t,        -

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


THOMAS WAYNE FLORENCE                                            56"= JUDICIAL DISTRICT

                        MOTION FOR MATERI AT •WITNESS BOND

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

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

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

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




                                                                                                    ASf
                                                                                                     107
oat ^svtW^L
                                  AFFIDAVIT for SEARCH WARRANT

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

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

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

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

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

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

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




                                                                                                              737
                                                                                                                  J&w


••#


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


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


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

         Magistrate.-SaTveston County, Texas


         Court




                                                                                                                  j6^
                                                                                                                        _A5(P

                                             THE      COURT:      That      is   true.

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

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




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

          ssault is alleged to have                                occurred



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


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




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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)




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      v'c^^l5onimtsfiaaiinS      •        Md^^^^lbJift^^^TMH^tPelfc^B^*


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




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

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


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

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

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


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



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

^^ponsc'      Deny.


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



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

KeSpohseA '   Admit.


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

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



(5)    Gejpdants^leni^^

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


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

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


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

Wspohse:      Admit.


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

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


      Assuming         for   argument's       sake/   that   the    offending

 sentence     was      removed   from   the    affidavit,    the    remaining

 portions of the affidavit, state probable cause for the

 arrest warrant and for the search warrant.

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

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

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

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

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

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

 iridactment^Qr^i^^

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

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

 district or county attorney charges the commission of an

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

 that a complaint shall be sufficient,                 without      regard to

 form,    if it has these substantial requisites




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

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

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

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

 Thjiaarai^A^a^ifc




 Art'.'^1-5^5.

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

 is multifarious,       and because appellant did not carry his

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

 the defendant       to establish the allegation of perjury or

 reckless disregard of the truth in an affidavit.                He must

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

 defendant    meets     that   burden,    is   the   affidavit's    false

 material    set     aside.    If   the   remaining    content     of   the

 affidavit still presents probable cause, the complaint or


                                    19



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

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

 <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.


                                               14




                                                                                                  -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
                                                                                   568
Evidence/Property Receipt
                                                                                   572
Motion for Independent Examination of DNA Evidence
                                                                                   575
Motion to Appoint Expert to Review the State's DNATesting Results.
                                                                                   580
State's Fourth Amended Proposed Witness List           .
                                                                                   582
State's First Motion for Continuance .
                                                                                   599
State's Fifth Amended Proposed Witness List
                                                                                    617
Motion for Appointment ofinvestigator
                                                                                    619
Supplemental Evidence/Property Receipt         .
                                                                                    621
 Motion for Independent Handwriting Analysis.
                                                                                    624
 Order on Motion to Recuse After Hearing       .

 VOLUME IV


 Attoroey's.BiandonS!mst.JSay»a.«aj«w.'^«»-                                          625

 Omitted Records          •
                                                                                     629
  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 .
                                                                                         643
   Attorney's Brandon Sims, Kayla Alien                                     .
   Omitted Records •          .
                                                                                         663
   Pro Se Motion for Change ofVenue .
                                                                                         667

   Falsified Indictment                                                                   670
   ProSeDefendant'sMotiorvfor Bond Dismissal
                                                                                          672

   Pro Se Letter   .

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

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




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




  VOLUME VI


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



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


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



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


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




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

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



 \HDEX

 VOLUME 1
                                                                                      10
  Title Page
                                                                                      11
  Index    •

   Caption                                                                            13


   indictment                                                                          19

    Docket Sheet ,                                                                     21

    Pauper's Oath.                                                                         22

     Statutory Magistrate- s Warning                                                       23

     Requestfor Counsel -                                                                  24


      No«ce of Appoint.                                                                     25

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

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

                                                                                                 36

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

                                                                                                      92


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

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

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

                                                                                            132

Pro Se Letter     .           •
                                                                                            136

Er^Sell&fOT^^                                                                               138

Pro Se Letter     .                   •
                                                                                            142
Criminal Docket Control Order
                                                                                            143

Agreed Discovery Order
                                                                                             145

 Pro Se Letter        .
                                                                                             164

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

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

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


  VOLUME 11
                                                                                                  224

   pj&SeiDlferltfj^^                                       *                                      259
   Pro Se Defendant's Motion for Approval of Expert Witness Funds .
                                                                                                  261
   Court of Appeals Correspondence
                                                                                                   262
   State's Motion for Release of Medical Information and Order.
                                                                                                   265
   State's Motion for Release of Medical Information and Order .
                                                                                                   268
    Inmate Response Letter
                                                                                                   289
    Notice of Filing Business - Medical Records .
                                                                                                   291
    State's Motion for Discovery of ExpertWitness Article 39.14(b) C.C.P.                                <b)
                                                                                                  AS
                                                                                               M
                                                                                       292
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
                                                                                       296
State's Motion in Limine     .
Seoond Amende. State's intent to introduoe Extraneous Offenses in Case in Chief        ^
and in Punishment Phase ofTrial
                                                                                       302
Notice of Filing Business-Medical Records .         .       *
                                                                                       303
Motion for independent Examination of DNA Evidence          .
                                                                                        305
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 .
                                                                                             334
   Pro Se Defendant's Motion for Approval of ExpertWitness Fund                              339
   Notice of Appointment.
                                                                                             340
   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

                                                                                      434

 Pro Se Letter . ' • • " "                                                             435

 Pro Se Letter   .
                                                                                       436


                               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        .
                                                                                       458
 Pro Se Notice to Galveston County Sheriff .           ••
                                                                                        459

 ^ero*Moti^^                                                        '
'^^^^^^^^^^
  Department ofHolly^dhnson
                                                                                        460

                                                                                        469
  Pro Se Notice to Galveston County Sheriff .
                                                                                        473
   ProSe Notice to Court to Take Judicial Notice            .
   NoticeofHearing/Acknowledgment/OrderofAsslgnment .                                       485

                                                                                            488
   Order Denying Defendant's Motion for an Expert Witness •             •
                                                                                            489
   Order Granting Defendant's Motion for DNA Testing .                                      490
   Order Granting Defendant's Motion for an Investigator
                                                                                            491

                                                                                            492

   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       •        •
                                                                                             564
    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.




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



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




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



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

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


                                                                              imm-! ,,


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

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



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




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



                                                                                      cOuUL
                                                                               etfgfis@<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
      9 years employed by the Galveston Police Department. Affiant is currently assigned to the Criminal
      Investigations Unit of the Galveston Police Department.

      On March 2,2010, Affiant was assigned follow-up investigation to Galveston Police Department
      Case number 2010-13986 (Sexual Assault 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:
                                                                                       3 £
                                                                                                             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/>^/ /              ,
 20 in at crfjo o'clock _a M., by arresting the within named
 FLORENCE/THOMAS W                      , the J;?*"* day of ,\^>/~, /
30 tO , at (hsJ*C££Js^ (*•*..,JiL      / in C&JxzxIo* County, Texas
and *Taking his bond, *piacihg him in jail at i'jC-/*/•*%••£»* C-oi^-^L
         I actually and necessarily traveled *—^~__ miles in the service
of this writ, in addition to any other mileage I may have traveled
Lr. the service of other process in this cause during the same trip..

FEES :
 Making Arrest ..:?_                                                        _Constable/Sheriff
 iXileaoe        5_
 Taking Bond ...-$"                                                                   County, Texas
 Ccir.mitment             $_
 Release                  S             by O^ ]• •"VV(-?                                           _Ettguuy
                                                                                                    Orf.z. <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
       9 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
                                                                                                                         173



         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
         4
               familiar with it, ';3te'd5©s^fei»u-©d«^
         5
                                                                 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.

    11


    12         prosetuti o^s-xn^tjh^^                                                                                    ^
    13         i»~»^e^*4rairre

    14
               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^

    17
                             Q--^4^, ^S^^-J^*?^^                                                            fox.
    18

                 .1'-. .".   ';-T-". —— U _ ' • '•-•   • ' ''-
    19


    20
                                                                 THE DEFENDANT:     Your Honor,     mav I aporoacin
    21        th«        witness ?


    22                                                           THE   COURT:   Sure.

    23
                                                                 THE DEFENDANT:     Exfei&ifci^^^jw^ulA^iiJ^e^..,tg„
    24


    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

   4    her?


   5                                 THE DEFENDANT:         Then I'm going to submit

   6    it    into        evidence.

   7                                THE    COURT:     One   step   at   a   time.

   8           ..^gf.^s^YgTHB-AD^                                                   if. you

   9    s€:^;^fa:dore|Sg.ccrop-Ly* 'wit<-h: ^A^ta^el-e -•lr.-*2-.3%
  10


  11

  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?

  19


  20


  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?

      3
                     A-     In— are you wanting me to read, like, No. 4?
      4              Q.     Yes,    ma'am.

      5             A.      Item No_fc__4__r.-

      6
                                    MS. ALLEN:             Your Honor, I'm going to
      7
             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.

    11
                    Q.      (BY THE DEFENDANT) .,-SfWMs0^^^^gm$^^fgs
    12
             '^^^^^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
    16


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

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

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




A%t                                                                                      M
                                                                                                          176



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


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


13                                     SOUR7' •   R . Sfttr.

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

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

18


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

21
          submit ^^hxbxt^ot^:^^
22
         P^teab^eMc'au=s;ex<a^#ida^i^., fox a-rr%ff-waf~±*mm^mmm,M
23
         ^Q;gg-v&ojtg*egmjg;^^                                             ari;t^xgg..edure,.,,
24       Aygux-ABg;hiox,

25
                                MJ^^Aggg^g^g^^^^^^^^^^l^^^^tea^^


42
>a
      i   the-re?,':^.&hea*.^a>yA;     i   ,•                  xcum-en-t-r^And it'-s
      2   •agcgelSegsgBfe..
      3                          THE.O:AI®T^^ak^^

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

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

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

     I, THOMAS WAYNE FLORENCE, ACKNOWLEDGE

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

     BRANDON SIMS, ASSISTANT DISTRICT ATTORNEY, WITH THE GALVESTON

     COUNTY DISTRICT ATTORNEY'S OFFICE.



     DATE       5-25-11

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



     NAME OF RECEIVING AGENCY: GPD

     ITEM/S:

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

     Waiver of Search from Amber Guarnelo

t/   Affidavitsands§empkaH|^ii3toestiWan^nl„

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


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


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

    Offense Reports/Supplements for GPD Case #'s:

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

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

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

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

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


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



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




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

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

          Amber Guarnelo Waiver of Search from 1-4-10

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

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

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

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


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


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




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

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

            <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




                                                                                              571
                                                                                                               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
23 i'da^^^s^^av.'e^tTh^sfirra%leg>'a "                     ' re* fe4-me-.-.: -I;. j'Ust-

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




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

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

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

 5    -y^»##^#e^#rt . . .

 6          A?Sife^@k^y>?:5^¥f^

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

 8     telling me.          A«s5fe»j8^^

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

10


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

13


14


15


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

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

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

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

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

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

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

23    question you about what happened.                          A detective is

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

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




 1   ^-^©rrat^^^a^rJ^^

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

 3   . rji^a|5i^^

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



 5    wjh^^ry£>B?!Ppfe^m^^

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

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

 8   slcirAli'KeAAr^gft%                                  --

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



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

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

13   been the detective actually,                              since she was assigned to

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

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

16   doing the investigation you are saying?

17        A.             Yes,     sir

18                                THE DEFENDANT:               Pass the witness at this

19   time,           Your        Honor.

20                                THE COURT:          Okay.       State?

21                                MR.    CAMPBELL:         Thank you,          Your Honor.

22                                        CROSS-EXAMINATION

23   BY   MR.            CAMPBELL:


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

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




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

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

 3    d^e's<hf£ii«k^

 4    somebody-              d--"h-im^

 5                                 •vS^gs^^EMJOAlS                     -•    1 Uth.em^ujpi.^iglit

 6   ,.h,e''i -   s..itE'.


 7                                 MR,. .'HALL:       That' s , al^ready^ifi evidence-that

 8    he_.p,icked .them...up together on 2-2i6.^-l:0^••%**£&asb^s^dJKr--

 9


10                             „THEKCO.UR--                                 i^h/ow^-is^^t-ii-n

11    evidence? < •

12


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 —
                                                                                               44




 1                         THE COURT:        On this document right here.

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

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

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

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

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

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

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

 9     whattthis, document say.

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

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



14     isdyaa^k&tria^                                                                      '

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

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

17     request?

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

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

22                         THE DEFENDANT:           That I can use this here,

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

24     incident.                                                             i

25                         THE COURT:        Okay.       So,    you want to




                                                                                                    a
                                                                                      Jd
                                                                                                                    9 l^~


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


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




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


 4    state of mind was                   or how she testified yesterday                         •




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



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

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

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

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

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

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

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

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

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

17    I'll       tell      you.                                              -




18             Q.       Page       --

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


20    it    to      him?


21                                 THE    DEFENDANT:        Yes,          sir.


22             A.       (CONTINUING)             Yes,    sir.

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


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

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


  2


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

  4


• 5                                          '    -]     -Sne-vefeesme                                 zgot

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

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

  8


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

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

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

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

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

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

15      information.                  The        address      I   had   was    at


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

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

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

19     information I needed for the report and then referred it

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

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

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

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

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

25    .»n oteo^^A^iR^b^?^
 2    ^"fefeiieierS^^tecHfeg'Ot^p'ri'C              ^^^a<Q-s-eg^te0«-gi3^sae^gffi^.^s^f^^|

 3             A^•'""•••Tt-!Js:"'becaus¥-' I"'' m a 'wed1 -1 rained"' pdidtS*''"oT1"dtfir
                                                                                                                **
 4 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—




 1


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

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

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

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

 6   and investigate everything to find facts of the case.

 7   And it takes time.                        There's procedures.

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

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

10   referred it to CID.                        CID takes up the investigation

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

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

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

14           @^;vh;<ftS:©.;;...,Jtofabjd^^
15   #3= om ^Ben' TaurS"                   . -FT**     An'd^-'S'he'',*-g-a.w-e-^y^u--*t'.hd s

16   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
 1   ^^KSjnsaiEesyip;^                                                                ce_
 2    re-port-was-.-issued.-.on -this•.da.te„i_:_ina'.am?

 3         A*w«is«l^*^a^


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

 5    this police report was issued from the Galveston Police

 6   Department?

 7         A. .-/Jliglit,. ~^

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

10   you posted investigator regarding a Lisa Ruiz who was

11   sexually assaulted by her father?

12                        MR.    CAMPBELL:        Objection.           This is outside

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

14   the    affidavit       at    all.


15                        THE DEFENDANT:           I object because --

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

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

18                        THE DEFENDANT:           No,       sir,    Your Honor.

19                        THE COURT:        Then that is outside the scope

20   of    the    affidavit.


21                        THE DEFENDANT:           Yes,       sir.

22                        THE    COURT:     This       would be       cross-examination

23   at    some   other     time    for    some    other       reason.


24                        THE DEFENDANT:           All right.           Yes,   sir.

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

  2    side     bar.


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


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

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

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

  7   right here.

  8                           THE DEFENDANT:               Yes,        sir.

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

10    learned from reading that police report number that

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

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

13    from February 19                   to whaJL?

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

15    that a report was made on February 19th.

16         ©A-^^£utr yo;U^S'a#d^

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

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

19    s^aicfeyqiusggtfa^

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

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

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

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

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

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

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

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

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

 6   dam-have^ per^so^

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

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

 9                        THE       DEFENDANT:        I    call    Mr.   Alemendarez


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

11   Miss Guarnello by Kathryn Lanah from Juvenile Justice

12   Department on orders of parole officer,                              probation

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

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

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

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

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

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

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

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

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

22   this       crime.


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

24   testifying.

25                        THE COURT:             Just what's your question?




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

 2   Affiant also learned from reading the police report that

 3   Amber Guarnelo was transported to Ben Taub for

 4   psychiatric treatment and evaluation for drugs and

 5   suicidal thoughts.

 6                Y^:u^sayJ3y^ti*#g©I^^

 7   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*^^                                 \ ,
11   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

14   information,           Your Honor.

15                        MR.       CAMPBELL:    Your Honor,              if   the Defendant

16   is returning to the table, we would ask he remain there

17   during the questioning.

18                        THE       COURT:   Here    is       the   deal,      Mr.   Florence,

19   if you don't need to be up here to point to separate

20   things on your exhibits,                   then do your questioning from

21   the    table.


22                        THE DEFENDANT:            Yes,       sir.

23                        THE COURT:         If you heed to,               to point out

24   certain things on exhibits or to present exhibits to the

25   witness,        then you can approach.
                                                                             Jr,
 l   them.


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

 3


 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

 8   affidavit where you say affiant.                     After reading the

 9   police report, did you do your own investigation, ma'am,

10   or basically just blindfolded what Garcia stated in his

11   police report regarding this case?

12      tA^vsls^dd^^                                       but I also had to

13   refer to officers' prior reports, which 1 used in my

14   investigation.

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

16


17


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

19


20      A^^Ji^^a^OTding ^tbtpb'lid                              -        -        Jye.s

21      Q.. _ Miss, Johnson," .you' 'did" an investigate                       egarding

22   this^case?-" -.T4iat \s.>a- !!ye'sr         .     >?, "f .ma '-am

23


24


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




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

 2                         THE DEFENDANT:         Well,    Your Honor,     I   would

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

 4


 5                         THE COURT:       Okay.

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

 7   ©s§spt»S>^§S«fe

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

 9   police report             --

10                         THE COURT:       No argument.         Ask questions.

11                         THE DEFENDANT:         May I approach,        Your Honor,

12   to   show     her.


13                         THE COURT:       Well,   only if you think she

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

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

16                         THE DEFENDANT:         But it's the report where

17   she did an investigation.

18                         THE COURT:       Is that the hospital record that

19   you are about to show her?

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

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

22


23


24   th<*H*g?isfes .

25                        THE COURT:        I know where your argument is




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

 2    questions.

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


 4   J3j|^Ta;ub;^e;s§>i^^^

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

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

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

 8    treatmeati?


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

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

12    inyagtigiatisoxiiPii

13                              MR.   CAMPBELL:           Your Honor,       I would object

II   She already said she had no relevant knowledge

15                              THE   COURT:    I    will      let   her    answer   the


16   question.

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

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

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

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

23   tefrat^mbe%-Guar-nei£;,.^

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

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




  1       ,.A_.__-Jiajyr^^«^

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

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

  4   d^xesitedtg^*^®^

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

  6


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

  8   hOSjyjjaiia^h.^

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

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

12    ...salid^agdgnio^

13    -saiida^Qii^<ii.dA;re^a,rdijig/ -               ase?,

14


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^^^

2 0   adm*3&dst£a^diaifc^^

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


24


.25   -she-, did-;
                                                                                              56




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



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

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

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

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

 8                              THE COURT:        So you are through with this

 9   witness,                right?

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

11   Your       Honor.

12                              THE COURT:        Okay.      You want to introduce

13   something through this witness?

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

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




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

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

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

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

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

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

24   tHi s -dateAA£Your- 'Honor ;

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

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

 3    possession of Amber Gaurnelo's video.

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

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

 6   (thaiSv.-JS^

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

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

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

12    nb-WteEUfij^^^^

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

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

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

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

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

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

19                           THE COURT:         Okay.     Come on,     then.

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

21    Your          Honor.


22                           THE     COURT:     Mark    it.


23                           THE DEFENDANT:            I would like it introduced.

24                           THE COURT:         Show it       to the witness.

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




 1


 2       ,Asagssi^§hay^ndt,_ rjeyjewed .t-h i safi^isoakl^am&not::^s^rveaJ^hatAs^

 3   Q*aMtga.^..i^^

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

 5


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

 7   rielpel!Fsl^vi%^


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

 9


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

11   h^3ag^aiLo.^e:iBB»Ecsg£^

12                     THE DEFENDANT:           Your Honor,        is it possible

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

14                     THE   COURT:       Sure.


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


16                     MR.   CAMPBELL:         Your Honor,        we have no

17   objection to it.

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

19                     THE DEFENDANT:           There were some other

20   witnesses.          May I approach,          Your Honor.

21                     THE   COURT:       Sure.


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


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

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

25
                                                                                  59




 1


 2


 3


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

 5   qt(lejstdl©n?

 6


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


10   i*is3Sr^2fe?

11                   THE COURT:         Are   those Ben Taub records         --

12                   MR.   FLEMING:         The certified copies are

13   already in the file on the report.

14                   THE COURT:         And they had been on file for

15   more than 14 days?

16                   MR.   FLEMING:         Yes,   Your Honor.

17                   THE COURT:         So they are deemed as being

18   accurate records because they have been on file for a

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

20   the introductory letter saying that the custodian of

21   records has filed accurate copies of those documents.

22                   iJIHE^EOSJEi^MDAM^

23


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

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




                                                                 Jfb§
                                                                                                   60




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

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

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

   4    t-Exhd'bi-t32!1.


   5                         THE    DEFENDANT:           No,    sir,    not    the Franks

   6    stuff.       I     need    1that.


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

  8                          THE    DEFENDANT:           Yes,    sir.

  9                          THE    COURT:     How long is             this?

1.0                          THE    WITNESS:        I    don't    know.


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

12      minutes,         Your Honor.

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

14      Honor.


15                                   (The tape was played.)

16                           THE    COURT:     Is       that    it?

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

18                           THE    COURT:     Okay.           Continue.

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

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

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

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

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

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




 1       Amber jLn the video state that I sexually assaulted on

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

 3       ma'am?


 4          A.    I observed watching this interview that Amber

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

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

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

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

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


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

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

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

13       Judge with this here under oath and spoke before the

14       Judge that this is true and correct, everything_thjLs

15       here„

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

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

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

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

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

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

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

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

25       26th but not the February of 2010.




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

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

 4                      MR.   CAMPBELL:      Objection,        argumentative,

 5   Your     Honor.


 6                      THE COURT:    I     will   allow      it.

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

 8   believedthat after watching her interview the first

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

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

11   you are mistakenly got me arrested on an_incident, you

12   are saying you witnessed Amber state that I sexually

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

14   you made a mistake?

15                      MR. CAMPBELL:        Objection,        argumentative.

16                      THE COURT:    I will allow this question,                  but

17   we need to move it along.

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

20                      THE   COURT   I     said   I   will    allow the


21   question.

22                      THE DEFENDANT:        Yes,     sir.

23                      THE COURT:    So you can answer it.

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

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




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

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

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

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

 5     date.


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

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

 8    mistake?


 9                         THE COURT:     She has answered that question.

10     Let's move along.

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

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

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

14    tAfrer^'€iai:'a'i>

15    •t.h-iss-do'^


16    ^f^a^da?e€ffifWnrf?'

17                         MR.   CAMPBELL:     Objection.    That question is

18    confusing.

19                         THE   COURT:   I   don't   even understand the

20    question.

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

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

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


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

25    p^esent^iti^tHliF^^^^                                         So it's a
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                                                                                                                             51 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
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J&h                                                                                                                                                                                                                                                J, 43
                                                                                                                                                  nswt'sdi&n
Jv4)                                                                                                                                                                                                                                                 >4f
                                                                                                                                   51 PM Friday, March 13,2015
                                                                                   Respondent-Appellee.                                     fact-finriinn hecaiigg the f^cts the state trial                          proceeding .28 U.S:C:S. §,2254(d): To
                                                                       Judges: Before: Harry Pregerson, Dorothy W.                          judge found involved her own conduct, and she                             determine the relevant clearly established
                                                                       Nelson, and SandraS. Ikuta, Circuit Judges.                          based those findings on her untested memory                              federal law, the federal court looks to the
                                                                       Order; Opinion by Judge D.W. Nelson; Dissent                         and understanding of the events.                                          holdings, but not the dicta, of the Supreme Court
 RICHARD D. HURLES, Petitioner-Appellant, v.                           by Judge Ikuta.                                                                                                                                at the time the state court adjudicated the claim
  CHARLES L. RYAN,* Respondent-Appellee.                                                                                                                                                                              on the merits In considering whether the state
 UNITED STATES COURT OF APPEALS FOR                                    CASESUMMARY                                                              TCOME: The case was remanded for an
                                                                                                                                            evidentiary heartno on the inmates claim ot
                                                                                                                                                                                                                      court unreasonably applied clearlyestablished
                 THE NINTH CIRCUIT                                                                                                                                                                                   federal law, the federal court is limited to the
   706 F.3d 1021; 2013 U.S. App. LEXIS 1305                                                                                                 judicial higff, but was otherwise affirmed.
                                                                       PROCEDURAL POSTURE: Petitioner inmate                                                                                                          record before the state court that adjudicated the
                      No. 08-99032                                                                                                                                                                                   claim on the merits.
                                                                       appealed the UnibSdStates District Court for the
    October 7,2010, Argued and Submitted,                              District of Arizona's denial of his federal habeas                   LexisNexis Headnotes
                Pasadena, California                                   petition challenging hisconviction forcapital                                                                                                  CriminalLaw A Procedure > Habeas Corpus
               January 18,2013, Filed                                  murder and the imposition of his death sentence                      Criminal Law & Procedure * Habeas Corpus                                  > Review* Standards of Review* Contrary A
                                                                       The inmate argued that the district court erred in                   * Appeals* Standards of Review > Clear                                    Unreasonable Standard > Unreasonable
                                                                       denying his claims of judicial bias and ineffective                  Error Review                                                             Application
 Editorial Information: Subsequent History                                                                                                  CriminalLaw A Procedure * HabeasCorpus
                                                                       assistance of sentencing and appellate counsel,
                                                                                                                                            > Appeals * Standards of Review *DeNovo                                  An unreasonable application of federal law
 Later proceeding at Huries v. Ryan, 2013iU.S.                         and in finding various claims procedurally
                                                                                                                                            Review                                                                    results where the state court identifies the
 App. LEXIS 5404 (9th Cir. Ariz., Mar. 19,
                                                                UJ defaulled.As allegation ofjudicial biaswould
                                                                                                                                            CriminalLaw & Procedure > HabeasCorpus                                   correct governing legal rule from U:S. Supreme
 2013)Opinion withdrawn by Huries v. Ryan, 2014                    havpeniiiied inmale lo habeas reliei, dulncl
                                                                                                                                            * Evidentiary Hearings * Review of Denials                               Court cases but unreasonably applies it to the
 U.S. App. LEXIS 9254 (9th Cir. Ariz., May 16,
                                                                or court abused its discretion in denying claim
                                                                                                                                                                                                                     facts of the particular state prisoner's case, or if
 2014)Substituted opinion at Huries v. Ryan,                           without evidentiary hearing. Case presented
                                                                                                                                            An appellate court reviews de novo a district                            it either unreasonably extends a legal principle
 2014 U.S. App. LEXIS 9255 (9th Cir. Ariz., May                        tronhlinn example of defective tact-finding as
                                                                                                                                            court's denial of a petitioner's habeas petition                         from Supreme Court precedent to a new context
 16, 2014)US Supreme Court certiorari dismissed                       J factsstatBtrialiudoefoundinvolvedherown                             and reviews the district court'sfindings of fact for                     where it should not apply or unreasonably
 by Ryan v. Huries, 2014 U.S. LEXIS 3989 (U.S.,                        rnnrtnrt anrf chpbaseTfmdlngsoTKerunfested
                                                                                                                                            clear error. The appellate court reviews for                             refuses to extend that principle to a new context
 June 3, 2014)                                                        > memory and understanding of events.
                                                                                                                                            abuse of discretion the determination that a                             where it should apply. A federal court cannot
 Ed|toria| Information: Prior History                                                                                                       petitioner is not entitled to an evidentiary hearing.                    grr.nt relief unless the state court came to a
                                                                          iVERVIEW:The inmate procedurally defaulted                                                                                                 decision that was objectivelyunreasonable.
                                                                       five of his ineffective assistance claims. Further,                  Criminal Law A Procedure > HabeasCorpus
 Appeal from the United States: District Court for                                                                                          * Review * Antiterrorism A Effective Death                                Criminal Law A Procedure > Habeas Corpus
 the District of Arizona. DC. No.                                CC counsel did not perform below the objective                             Penalty Act                                                              * Review* Scope ot Review
                                                                       standard of care when she did not establish a
 CIV-00-0118-PHX-RCB. Robert C. Broomfield,                                                                                                                                                                          CriminalLaw A Procedure > Habeas Corpus
                                                                       causal nexus between the inmate's mental                             Criminal Law A Procedure > Habeas Corpus
 Senior DistrictJudge, Presiding:Huries v.Ryan,                                                                                             * Review > Scope of Review                                               * Review* Standards of Review* Contrary A
                                                                       conditions andthe crime and counselconducted
 650 F.3d 1301, 2011 U:S. App. LEXIS 13819                                                                                                                                                                            Unreasonable Standard * General Overview
                                                                :9 a thorough penalty phase investigation and                               Criminal Law A Procedure > Habeas Corpus
 (9th Cir. Ariz., 2011)
                                                                       nrpsantart voluminous mitigating evidence. The                       * Review > Standards of Review * Contrary A
                                                                                                                                                                                                                     A federahcourt cannot, find that the state court
 Disposition:                                                          ln,il rnitn did consider the mitigating evidence                     Unreasonable Standard > General Overview
                                                                                                                                                                                                                      made an unreasonable determination of the
            AFFIRMEDinpart; REMANDED.                                  nffprpd ag ihe tl S Constitution required The
                                                                                                                                            The Anti-Terrorism and Effective Death Penalty                           facts in a case simply because it would reverse
                                                                       state supreme court's independent review of.the
 Counsel                                 Denise I. Young                                                                                    Act of 1996 (AEDPA).places limitations on a                               in similar circumstances If the case came before
                                                                       death sentence imposed also demonstrated that
               and Michael Aaron Harwin, Tucson,                                                                                            federal court's powerto grant a state prisoner's                         the federalcourton directappeal Instead,.the
                                                                 CD    the inmate did not suffer an error requiring
               Arizona,.for Petitioner-Appellant.                                                                                           federal habeas;petition. When a-state court has                          federal must be convinced that an appellate
                                                                       federal habeas intervention. However, because
                                            Terry .                                                                                         adjudicated a claim on the merits, a federal court                       panel, applying thenormalstandards of
                                                                       IhP allonalmn nl inrtirial hias would have if
               Goddard;        Attorney      General       of                                                                               may grant relief only if the adjudication of that                        appellate review, could not reasonably conclude
                                                                       nrnvnd entitled the inmate to federal habeas
               Arizona, Phoenix, Arizona,                 for                                                                               claim (1) resulted in a decision that was contrary                       that the finding is supported by the record before
               Respondent-Appellee.                                    fBlifffi lh° '"",r><^, *~*7llft Hfrused its discretion in                                                                                     the state court. To find the state court's fact
                                                                       rtomiinn th» claim without an evidentiary hearing.                   to, or involved an unreasonable application of,
                                                   Kent E.                                                                                  clearly established federal law, as determinedly                         finding process defective in a material way, or.
                                                                       The state court's denial of the inmate's judicial
               Cattani and J.D. Nielsen, Arizona                                                                                            the Supreme Court of the United States, or (2)                           perhaps, completely lacking, the federal court
                                                                       bias claim rested on an unreasonable
               Attorney General, Capital' Litigation                                                                                        resulted in a decision that was based on an                              must more than merely doubt whether the
                                                                       determination of the facts       the case presented
               Section, Phoenix, Arizona, for                                                                                               unreasonable determinationof the facts in light                          processoperated property. Rather,itmustbe
                                                                       an ccpcr-iallvtrniihlipt] trample of defective
                                                                                                                                            of.the evidence presented in the state court                             satisfied that any appellate court to whom the

 A09CASES                                                                                                                                   A09CASES                                                           2

 £2015 Matthew Bender &Company. Inc.. a member of theLexisNexis Group. Allrights reserved. Useofthisproduct issubject tothe                 C 2015Matthew Bender&Company.inc.. a memberof IheLexisNexisGroup. AUrightsreserved-Use of this product is subject lothe
 restrictions andtermsandconditionsof the MatthewBenderMasterAgreement.                                                                     lestrictions and tenns and conditions of the Matthew Bender Master Agreement




                                                                                                                                     t-oC-to
J^O                                                                                                                                                                                                                                                       Ml
 i^A4r                                                                                                                                                                                                                                                        J45
                                                                                                                                    51 PM Friday, March 13, 2015
                                                                                CriminalLaw AProcedure * Pretrial Motions                      CriminalLaw A Procedure > Trials *                                   •. IInder Tnwnsenrt a fertaral courtmust nran^.an.
   While the Anti-Terrorism and Effective Death
                                                                                * Disqualification A Recusal                                   Defendant's Rights * Right to Due Process                              evidentiaryt|t>arjnp in circumstances where: (1)
   Penalty Act of 1996 stops short of imposing a                                CriminalLaw AProcedure * Trials *
   complete bar on federal court relitigation of                                                                                                                                                                      the «tato ennrts factual determinations are not
                                                                                Defendant's Rights •> Right to Due Process                     Nnn-narnnlaru rnnBi^c that temnl adjudicators
   claims already rejected in state court                                                                                                                                                                             fairhi •ji.nnnrtoriihu the record as a whole, and:(2)
                                                                                                                                               to disregard neutrality offend due process. A,                       „tha fart finHinp prr.rprti.ro pmp|nvf|fl,hy the jj|^te
  [proceedings it preserves authority to issue the                              Fuetv nr^cedure whjch wouldofferaipossible                   . iiirtnpmutt luilhrlraw whore chp p-r* m port »r
  writ in cases where there isno possibility                                                                                                                                                                          court was not adequate to afford a full andfair
                                                                              . temptation to the averageiudoe to torget the ~~               ,thn arrmalnn/ nrnrc.. hp/r.nnp., pmhmilpriin a                         hearing,                                 ——-
  fairminded jurists could disagree that the state                                   <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
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   restrictions andtermsandconditions of the Matthew BenderMaster Agreement.                                                                  restrictionsand terms and conditionsof the Matthew Bender MasterAgieement.




-A 4-4                                                                                                                                                                                                                                                      >45
                                                                                                                                                                                                                                                            M¥
                                                                                                                              51 PM Friday, March 13, 2015
      yearsfor prior crimes,went to the libraryin                           against Huries, that defended her ruling                         Attorney General's Office; represented                                  death sentence, fd. at 589. At the
      Buckeye, Arizona on aNovember afternoon                               below.                                                           Judge Hilliard in the special action                                    aggravation and mitigation.hearing, Huries
      in 1992. Sfafe v. Huries, 185 Ariz. 199,914                                                                                            proceeding and later admitted to having had
                                                                            In her response. Judge Hilliard described the                                                                                            offered substantial mitigating (706 F.3d
      P:2d 1291, 1293 (1996) (en banc). He                                                                                                   some communication with Judge Hilliard.
                                                                            murder as "brutal." She noted that defense                                                                                               1029} evidence, including his markedly
      attacked librarian Kay Blanton by attempting                                                                                           about this matter. In opposing a motionto
                                                                            counsel had not noticed any {706 F.3d                                                                                                    dysfunctional familybackground: cognitive
      to rape her and then stabbing her                                                                                                      disqualify the Arizona Attorney General's
                                                                            1028) defenses, had not disclosed the                                                                                                    deficiencies, long-term substance abuse,
      thirty-seven times. Id. Huries left the library,                                                                                       Office;from representing theistate, French
                                                                            names of trialwitnesses, had not requested                                                                                               mental illness, good behavior while
      cleaned himself up, discarded his bloody                                                                                               referenced her "communications with [Judge
                                                                            an examination of Huries and that jt was not                                                                                             incarcerated and an expert opinion that
      clothes and fled on a bus to Las Vegas,                                                                                                Hilliard] during the special action
                                                                            known whether Huries would present a                                                                                                     Huries suffered diminished capacity at the
      Nevada. Id. at 1294. The state charged                                                                                                 proceedings" but did not describe their                                 time of the crime.
      Huries with burglary, first-degree murder,                            mentallhealth expert at trial. Judge Hilliard
                                                                            nevertheless described the state's case
                                                                                                                                             nature of content. The record is ambiguous
      first-degree felony murder and attempted                                                                                               as to the nature and extent of those                                    Following the presentation of penalty phase
      sexual assault. Id. at 1293.
                                                                            against Huries as "very simple and                                                                                                       evidence. Judge Hilliard found one statutory
                                                                                                                                             communications:
                                                                            straightforward, compared to other capital                                                                                               aggravating factor: that Huries committed
      The court appointed an attorney to represent                          cases" and predicted that it would riot                          Addressing Judge Hilliard's participationin                             the crime in an especially cruel. Heinous and
      Huries, an indigent. That attorney moved for                          involve an inordinate amount of witness                          the special action proceeding, the court of
                                                               Q                                                                                                                                                     depraved manner. She found two
      the appointment of co-counsel when the                                testimony. She argued that the.denial of                         appeals held that it was "of the inappropriate                          nonstatutory mitigating circumstances: that
      State decided to seek the death penalty.                 LJJ          second counsel was rationally related to the                     'l-ruled-correctr/ sort" Huries, 849 P.2d at 4.                         Huries suffered a deprived childhood ina
      Defense counsel cited numerous reasons                                state's duty to preserve its resources, noting                   The court explained that "at every level of                             clearty dysfunctional home and that he
      necessitating co-counsel, among them, the                             that Huries had failed to show that his case                     the judiciary, judges are presumed to
      many witnesses, the State's intention to
                                                                                                                                                                                                                     behavedwellin prison prior to the underlying
                                                                            was "any more complex or difficultto                             recognize that they must do the best they                               crime. She concluded that these
      utilize forensic experts, the need to maintain                        prepare than almost any other criminal                           can, ailing by ruling, with no personal                                 circumstances did not wan-ant leniency and
      a productive client relationship and the                              case:"-Judge Hilliard referenced the rules of                    stakerand surely no yusf/c/abte stake-in                                condemned Huries to die. The Arizona
      dense and detailed preparation necessary                              professional conduct and stated that if                          whether they are ultimately affirmed or                                 Supreme Court affirmed Huries's conviction
      for bothphases of trial. The trial court                              defense counsel believed that she could not                      reversed." 7d. The court stated that "jtjhis                            and sentence on appeal. Huries, 914 P.2d at
      summarily denied the motion.                                          render competent representation, she was                         principle, which is essential to impartial                              1300,
      Defense counsel brought a petition for                                bound to withdraw and,quitepossibly, to                          adjudication, does not change from direct
                                                                            withdrawher name from the list of attorneys                      appeaftp special action, merely because the                             Huries filed his first petition for
      specialactioninthe Arizona Courtof                                                                                                                                                                             post-convictjonreview ("PCR") in 1999.
     Appeals. The petition challenged the denial                            who contracted with the county to serve as                       judge is a nominal respondent in the latter."
                                                                            appointed counsel. Judge Hilliard concluded,                     Id: The courtthen held that Judge Hilliard                              Judge Hilliardpresided over this PCR.
     of the motion to appoint co-counsel as
                                                                            "Clearty there are other attorneys who                           lacked standing to file a responsive;pleading                           French, the same attorney who represented
     violating Huries's rights to due process,                  s—          provide contract services for Maricopa                           and declined to consider thepleading filed in                           Judge Hilliardin the prior special action
     equal protection and the adequate
                                                                            County who would be able to provide                              her name. Id.                                                           proceeding, represented the state. Judge
     assistance of counsel. The real party in                 JQ
                                                                            competent representation in a case as                                                                                                    Hilliard denied the PCR, and the Arizona
     interest, the State of Arizona, declined to                                                                                             Judge Hilliard continued to preside over
                                                                            simple as this."                                                                                                                         Supreme Court summarily affirmed.
     respond to Ihe petition because it jacked                                                                                               Huries's trial: A jury found Huries guilty of all
     standing to do so. Huries v. Superior Court,                           The Arizona Court of Appeals published a                         charges. Judge Hilliard then conducted an                               Huries commenced federal habeas
     174 Ariz: 331, 849 P2d 1, 2 (Ariz. Ct. App.                            decision denying Judge Hilliard standing to                      aggravation and mitigation hearing to                                   proceedingsjn 2000. He themreturned to
     1993). However, the petition named the trial                           appear in the special action and ruling it                       determine the appropriate sentence for                                  state court to file a second PCR raising
     judge, Ruth Hilliard, as the respondent, as                            improper forjudgesto file pleadings in                           Huries. Arizona's capital sentencing scheme                             additional claims, including one of judicial
     requiredby Arizona law. Ariz. R. P. Special               CD           special actions solely to advocate the                           provided atthe time of trialthat Judge                                  bias. Huries moved to recuse Judge Hilliard
     Actions 2(a). This nominal designation "is a                           correctness of an individual ruling in a single                  Hilliard, sitting alone, would determine the                            from presiding over his second PCR. The
     mere formality," and the trialjudge "has no                            case. Huries, 849 Pl2d at 3-5. The court                         presence or absence of the aggravating                                  motion.was referred to another judge and
      interest in the litigation and should have no                         noted that the presiding criminal judge, not                     factors required by state law for the                                   denied. Judge Hilliardthen denied Huries's
      interest in the way the case is decided."                             Judge Hilliard, requested the filing of a                        imposition of the death penalty. Ring v.                                second PCR, and the Arizona Supreme
      Sfafe ex ret Dean v. City Court, 123 Ariz.                            responsive pleading and that there was no                        Arizona; 536 U.S. 584, 588,122 S. Ct. 2428,                             Court summarily affirmed.
      189, 598 P:2d 1008,1010-11 (Ariz.Ct. App..                            contact between Judge Hilliardand the                            153 L. Ed. 2d 556 (2002). The Supreme                                   Huries returned to federal court and filed an
      1979). Nonetheless, Judge Hilliard filed a                            Arizona Attorney General's office as the                         Court hassince heldthat capital defendants                              amended habeas petition; raisingten claims.
      responsive pleading, months before the                                pleading was prepared. Id. at 2, n.2.                            are entitled to a jurydetermination of any                              The district court denied:most of thenvas
      presentation of any evidencejn the case                               However, Colleen French, of the Arizona                          fact that would support the imposition of a                             procedurally barred. After additionalbriefing.

 A09CASES                                                                                                                               A09CASES
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 restrictions andtetmsandconditions of.IheMatthew Bender Master Agreement                                                               restrictions and leims and conditions ofthe Matthew Bender Master Agreement.




A4<e                                                                                                                                                                                                                                                Jr4A
•JkAI                                                                                                                                                                                                                                                ^4<?
                                                                                                                                  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
      617 (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
      131 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?
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                                                                                                                                51 PM Friday, March 13, 2015
     the class of death-eligible defendants and                              bases for denying relief. Stewart v. Smith,                      defendant's offense-related conduct")                                   130 S. Ct. 447, 453,175 L. Ed. 2d 398
     (4) that, specifically, Arizona's F(6) statutory                        536 U.S. 856, 859^60,122 S: Ct 2578,153                          (internal quotation marks and citations                                 (2009) (finding counsel's failure to
     aggravating factor fails to narrow the class of                         L Ed. 2d.762 (2002) (per curiam)(holding                         omitted).                                                               investigate and presentmiiigatmg evidence,
     deathieligibie defendants.                                              denials pursuant to Arizona waiver rules are                                                                                             which did not reflect reasonable professional
                                                                             independent of federal law); Orfjz v. Stewart,                   Counsel did not perform deficiently. First,
     Huries procedurally defaulted these claims                                                                                               Supreme Court precedent existing at the                                 judgment, deficient and prejudicial): Rompilla
                                                                             149 F.3d923, 931-32 (9th Cir. 1998) (finding                                                                                             v. Beard. 545 U:S. 374, 390,125 S. Ct.
     when he failed to raise them before the                                                                                                  time of trial did not require showing a causal
                                                                             Arizona waiver rule consistently and                                                                                                     2456,162 L. Ed. 2d 360 (2005) (finding
     Arizona Supreme Court. See Zichko v.                                                                                                     nexus betweeni mitigating evidence and the
                                                                             regularly applied).                                                                                                                      deficient and prejudicial counsels' failureto
     Idaho. 247 F:3d'1015,1021-22 (9th Cir.                                                                                                   crime. In fact, the Supreme Court had held
     2001) (amended) ("A habeas petitioner must                              Now that we have found "an independent                           that "the sentencer in capital cases must be
                                                                                                                                                                                                                      examine court file relating to petitionees prior
     present his claims to the highest state court                           and adequate state procedural ground,                                                                                                    conviction); Wiggins, 539 UiS. at 532; 538
                                                                                                                                              permitted to consider any relevant mitigating
     in order to satisfy the exhaustion                                      'federal habeasreview.is barred unless                                                                                                   (granting petition where counsel conducted
                                                                                                                                              factor." Eddihgsv. Oklahoma, 455 U:S. 104,
     requirement of [AEDPA]:"). "fTjhe procedural                            [Huries] can demonstrate cause for the                            112,102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)                              unreasonably insufficient mitigation
     default rule!barring consideration of a federal                         procedural default and actual prejudice, or                       (emphasis added) (explaining Lockett v.
                                                                                                                                                                                                                      investigation that fell short of prevailing
     claim 'applies ... if it is clear that the state                        [can]demonstrate that the failure to consider                                                                                            professional standards); see also Wong v.
                                                                                                                                               Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L.
     court would hold the claim procedurally                                 the claims will result in a fundamental                                                                                                  Belmontes, 558 U.S. 15; 130:S. Ct. 383,
                                                                Q                                                                             Ed. 2d 973 (1978) (plurality)); see also
     barred.'" Franklin v. Johnson, 290 F.3d                                 miscarriage of justice.'" Bennett, 322 F.3d at                                                                                           385,175 L. Ed. 2d'328 (2009) (per curiam)
                                                                                                                                              Lockett, 438 US. at 604 ("[T]heEighth and
     1223,1230-31 (9th Cir. 2002) (quoting                                   580 (quoting WofSe v. Peterson, 9 F;3d 802,                                                                                              (denying IAC claim where counsel
                                                                UJ                                                                            Fourteenth Amendments require that the
     Harrisv. Reed, 489 U.S: 255, 263 n.9,109                                804-05 (9th Cir. 1993)). Huries has made                         sentencer... not be precluded from
                                                                                                                                                                                                                      "understood thegiavity of th[ej aggravating
     S: Ct. 1038,103 L. Ed. 2d.308 (1989)). If                               neither showing. The district court properly                                                                                             evidence" and "built his mitigation strategy
                                                                or                                                                            considering, as a mitigating factor, any
     Huries presented these IAC claimsto the                                 dismissed these claims.                                                                                                                  around the overriding need to exclude it).
                                                                                                                                              aspect of a defendant's character or record
     Arizona Supreme Court now, the court would                                                                                                                                                                       The state court reasonably denied this claim.
                                                                                                                                              and any of the circumstances of the offense
     dismiss them as waived. Ariz. R. Crim. P.
                                                                             2. Sentencing Counsel
                                                                                                                                              that the defendant proffers as a basis {706                             3. Appellate Counsel
     32.2 (waiver with narrow exceptions not                                 Huries claims that sentencing counsel failed                     F.3d 1033) for a sentence less than death.").
     applicable here). Thus, Huries's failure to                             to explain how Huries's mental illness and                                                                                               Huries alleges that appellate counsel denied
                                                                                                                                              Therefore, counsel did not perform below
     present these claims to the state supreme                  <            deficiencies affected his conduct at the time                                                                                            him the.effective assistance of counsel by
                                                                                                                                              the objective standard of care when she did
     court "'in a timely fashion has resulted ina                            of the crime, depriving him of the effective                                                                                             .not challenging the trial court's failure to
                                                                                                                                               not establish a causal nexus between
      procedural default of those claims'" Zichko,                           assistance of counsel. The state court                            Huries's mental conditions and the crime.
                                                                                                                                                                                                                      weigh the mitigating evidence cumulatively.
     247 F.3dat 1022(quoting O'Sullivanv.                                    reasonably denied thisciaim. As discussed,                                                                                               The state court reasonably denied this claim.
     Boerckel, 526 U.S. 838, 848,119 {706 F.3d                               to bring a successful IAC claim, Huries must                      Moreover, counsel conducted a rather
                                                                                                                                                                                                                      A criminal defendant enjoys the right to the
     1032) S. Ct. 1728,144 L. Ed. 2d 1 (1999));                  CD          show deficiency and prejudice. Strickland,                       thorough penalty phase investigation and
                                                                                                                                                                                                                      effective assistance of counsel on appeal.
     see also Coleman v. Thompson, 501 U.S.                      tw          466 U.S. at 687.                                                 presented voluminous mitigating evidence.
                                                                                                                                                                                                                      Evfffs v. Lucey, 469 UiS. 387, 391-97,105
     722, 732,11.1 S. Ct. 2546, 115 L Ed. 2d 640                                                                                              She called four witnesses to testify to
                                                               mO            Huries contends that trial counsel failed to                                                                                             S. Ct. 830, 83L. Ed. 2d 821 (1985). We
     (1991), overruled on other grounds by                                                                                                    Huries's dysfunctional family background,
                                                                             draw a causal nexus between his mental                                                                                                   consider claims of ineffective assistance of
     Martinez v. Ryan, 132 S. Ct. 1309,1315,                                                                                                  menial and psychological disabilities and
                                                                             health problems and his conduct at the time                                                                                              appellate counsel according to the standard
     182 L. Ed. 2d 272 (2012) (holding petitioner
                                                               _J                                                                             good behavior while incarcerated before the
                                                                             of the crime, thus, the menial Health                                                                                                    set forth in Stricklano, 466U.S. 668,104 S.
     "defaulted his federal claims in state court,"                                                                                           underlying crime. She commissioned a
                                                                             evidence presented at sentencing proved                                                                                                  Ct 2052,80-L. Ed. 2d 674. Millerv. Keeney,
     so, met "technical requirements for                                                                                                      detailed social history that catalogued
                                                                             worthless. Sfafe v. Wallace, 160 Ariz. 424,                                                                                              882 F.2d 1428,1433-34 (9th Cir. 1989):
     exhaustion"ibecause "no state remedies                                                                                                    Huries's maladjusted family circumstances
                                                                             773 P.2d 983(Ariz. 1989) (en banc) ("A                           arid deprived life, and thm contained
                                                                                                                                                                                                                      Huries must show that appellate counsel's
     [were] available to him") (Internafquotation                03                                                                                                                                                   representation fell below an objective
                                                                             difficultfaml|y background is a relevant                         affidavits from family members and others
     marks and citations omitted).                                                                                                                                                                                    standard'Of reasonableness, andthat, but
                                                                             mitigating circumstance if a defendant can                       who knew Huries. In her briefing before the
     For the procedural default rule to apply, "the                          showthatsomethinginthatbackground had                                                                                                    for counsel's errors, a reasonable probability
                                                                                                                                              trialcourt, defense counsel highlighted
     application of the stateiprocedural rule must                           an effect or impact on his behavior that was                                                                                             exists that he would'have prevailed on
                                                                                                                                               Huries's intoxication at the time of the crime.
     provide an adequate and independent state                               beyond the defendant's control."); see also                                                                                              appeal: Id. at 1434.
                                                                                                                                              Trial counsel also adeptly cross-examined
     law basis on which the state court can deny                             State v. Greene. 192 Ariz. 431,967 P.2d                          the state's psychiatrist.                                               The trial judge found beyond a reasonable
     relief." Bennett v. Mueller, 322 F:3d 573, 580                          106,117 (Ariz. 1998) (en banc) (This court                                                                                               doubt that Huries committed the crime in an
     (9th Cir. 2003) (amended) (internal quotation                           has held that family background may be a                          On this record, we cannot say that counsel's
                                                                                                                                                                                                                      especially heinous, cruel and depraved
     marks and citations omitted). Arizona's                                                                                                  efforts fell short of what the Constitution
                                                                             substantial mitigating circumstance when it                                                                                              manner, a statutory aggravating factor. As to
     waiver rules are independent andadequate                                is shown to have some connection with the                         requires: Porter v. McCollum, 558 U.S. 30,
                                                                                                                                                                                                                      cruelty, the court found that the victim

 A09CASES                                                                                                                                 A09CASES

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




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


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




J?^                                                                                                                                                                                                                                     -* 53
JV54                                                                                                                                                                                                                                                   ^V33
                                                                                                                                   51 PM Friday, March 13, 2015
         considered'Huries's sentencing,                                                                                                           (200911 We (706 F.3d 1037) do not ask                                 where the judge has a direct, personal and
                                                                              Huries contends that Judge Hilliard's failure
         memorandum, the testimony presented both                             In recuse herself Irnm his trial santonrinn
                                                                                                                                                   whether Judge Hilliard actually harbored                              substantial nerainiani interest in convicting a
         at trialiand the sentencing hearingand the                                                                                                subjective bias, fd. Rather, we ask whether                           defendant. Tumev. 273 U.S. at 523. 532.
                                                                              and nnst-conviction proceedings denied him
         argumentsof counsel, in addition to Huries's                                                                                              the average          i inherposition waslikely                        Other financial interests also may mandate
                                                                              due nrncess of law The state court came to
         deprived upbringing and good behaviorwhile                                                                                                to be neutral or whether there existed an         **                - rental cuonH I»q« Hirart Gihsnn V
                                                                              an unreasonable determination of the facts
         incarcerated, the trial court noted it had                                                                                                unconstitutional potential for bias. 70. "Every                       Ranvhill AM IIS >iRi 170 03 S Q 1RBO
                                                                              in denvinn this claim. Accordingly, we
         considered Huries's low intelligence, lack of                        remand for an euirtentlatv haarinn                                   procedure which would offer a possible                                36! Fd 2ri.48B.M973>: see also Ward v.
         education and inadequate{706 F.3d 1036)                                                                                                   temptation to the average           judge to lOroeT                   Mnnmevilla 409 US S7 93 S Ct. 80. 34 L.
         mental hearth treatment while incarcerated.                          The Supreme Court held lono aoo that a "fair                         the burden of nrnol required to convict the                           Fd ?rt 767 (197?Wrenuirinn recusal where
                                                                              trial in a fair tribunal is a basic requirement                 .    defendant, or which miqhl lead him nol lo                             villana mayor with r^yfnue production role
         While the mitigating evidence may have                               rt flue pr~.»cc - In r* *A..~t,.,n~ 1*0 I I C                        hold thebalance nice, clearand true                                   also sat as a judge and imposed
         moved us to mercy had we presided over
         Huries's sentencing trial, such a
                                                                             ,133.136: 75 S. Ct 623. 99L. Ed. 942                                  between the State and the accused denies
                                                                                                                                                                                                       *                 revenue-producing fines on the defendant):
                                                                              MBSM "FaimaM nf rnurse renuires an                                   the B 3 due nrncess nflaw " TumavV                                    faunto 47SUS a\ 834-25 (requiring recusal
         determination's not appropriate on habeas
                                                                              absence of actual bias in the trial of cases.                        jQnio. 273 U.S. 510, 532,47 S. Ct 437. 71 L.                          where (1Va justice of the state supreme
         review. Richter, 131 S. Ct. at 786 (holding a
                                                                              But our svstemof law has always                                      Ed. 749,5 Ohio Law Abs 159, 5 Ohio Law                              . court cast the deciding vote and authored an
         reviewing court must not treat the                      Q           - MrfM..nmH in pBueal °"°" w"'-p~*irTiHHy                             Abs. 185, 25 Ohio L. Rep. 236 (1927).                                 opinion upholding punitive damages in
         unreasonableness question as a test of its                          .nf unfairness "frt r* MfchaHa v        llnitart                                                                                            certain insurances cases and (2) that same
         confidence^ the result it would reach under                                                                                              r Huries need not prove aclualbias to
                                                                                      . 488 UiS. 361, 407,109 S. Ct. 647.                                                                                                hitting was a nlaintiff ir;a pending action
         de novo review). Instead, we must ask                                                                                                    , establish a due nrnr^gs violaMon. just an
                                                                              1021. Ed. 2d 714 (1989) (The teaitimacvldf                                                                                                 involving the same legal issues from which
         whether reason supports the state courts                                                                                             —
                                                                                                                                                   intntorahla risk nf hias    Antra I Ha Ins Cn v
                                                                 IT           the Judicial Branch ultimately depends on its                                                                                              he nhtaineH a lame monetary settlement!
         conclusion that counsel rendered effective                                                                                                favnfo az&as &U "™ <™s P.t ISMy
                                                                              renmalion tor impartiality and                                                                                                             Non-oecuniaiv conflicts "that tempt
         assistance to Huries; despite not raising this                                                                                            89!   Fd 7riB?arigBR\ *ae also Carterton
                                                                              nnnnartisanshln "1 This most basic tenet of                                                                                                aHinriiratnre tn rtisrenardneutrality" aly.
         claimon appeal. We find no error in that                                                                                                 ,556 UiS. at 883 ("mhe Due Process Clause
                                                                              our judicial system helps to ensure both the                                                                                               nffonri rii.o nrfTflftUP Caparim. 556 U:S. at
         determination. The record makes plain that                                                                                                has been implemented bv objective
                                                                              litigants' and the public's confidence that                                                                                          .     «7fl fljiirtpomii^YyUhdraw where she acts
         the trial court did in fact consider the                                                                                                  standards that do nnt renuire nronf nf actual
                                                                              each case has been adjudicated fairly by a                                                                                                 a» part nf tha arniQalnry prm-estB
         mitigating evidence offered, as the                                                                                                       hias "> (citing Lavoie. 475 U.S. at 8?5:
                                                                              neutral and detached arbiter                                                                                                               ••fiifrfifpin 34911 s"at 137. "becomes
         Constitution requires. Parker v. Dugger, 4S8                                                                                             . Mavbemv. Pennsylvania. 400 U.S. 455.
                                                                                                                                                                                                                         emhrniiert in a running, bitter controversy"
         U.S. 308, 314,111 S. Ct. 731,112 L. Ed. 2d                           'The Due Process Clause of the Fourteenth                           . 465-66. 91 S. Ct. 499. 27 L. Ed/ITSST                               • with one nf the litinants Mavbem. 400 U.S.
         812 (1991) ("We must assume the trial                                Amenntnenl establishes a constitutional                             , /1B71V T:mau 773 11S at,M71 Thus we
                                                                                                                                                                                                                         at 4RS or hecomes "so enmeshed in
         judge considered all this evidence before                            flnnr nnfa nnifnmi standard:" for a Judicial                    - m«la«t 'Wtether 'iinrier a rr:a\\f.%
                                                                   03                                                                                                                                                   .matters involving la litigantl as to make it
         passing sentence.For one thing, he said he                           bias claim. Bracy v. Gramley, 520 U.S. 899,                     , appfa,|sal of psychological tendencies and
                                                                   s—         om i n c r, IVnJt fWI \-A 'MWI             '                                                                                              - annronriqte for another iudoe to sit."
         did."). The Arizona'Supreme Courts                                                                                                  .,- human weakness ' the Hudoe'slinterest                                     Inhncnnv Miccifrippi Mill! in,
         independent review of the death sentence                             (1997). While most claims of judicial bias are                       'nnses si ir-Jl a rialc nf ach lal hia« nr
         imposed'here also persuades us that Huries
                                                                 -Q           resolved "bv common law, stalule. or the
                                                                                                                                                                                                                         215-16f706 F.3ri mSBt 91 R         P.t 177B 99
                                                                                                                                                   prejudgment that the practice must be
         did not suffer an error requiring federal                            professional standards ofthe benchanq;                               forbidden if the guarantee of due process is                          i,Ffl,<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

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J64-                                                                                                                                                                                                                                          j^S5
Jv-5^                                                                                                                                                                                                                                          oV57
                                                                                                                                    51 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                      ~~

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                                                                                                                            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

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                                                                                                                                                                                                                                          J*5<j
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                                                                                                                                 51 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
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     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
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      inappropriately involved the iudoe in the                                (2) "had contact with French"; (3)                               fee*, suggestjs]strongly that the average                               under § 2254(d)(2) because the state trial
      "accusatory process." Id. at 137. In Johnson                             "commissioned or authorized the responsive                       judge in her position could not later preside                           court made an unreasonable determination
      v. Mississippi, 403 UiS. 212, 91 S. Ct. 1778,                            pleading"; or (4) "provided any input on the                     over Huries's guiltphase.ipenaity trialand                              of the facts. But the majority's claim that the
      29 L. Ed; 2d 423 (1971) (per curiam), the                                brief." Id. All four of these assertions are                     post-conviction (706 F.3d 1048)                                         state court's fact-finding process was
      Court heldit unconstitutional for aijudge to                             essentially the same;:they allege that Judge                     proceedings" in an unbiased fashion. Maj.                               deficient in some material-way is-entirely
      preside over an individual's contempt trial,                             Hilliardhad some (or even significant)                           op: at 31 (emphasis added). While the brief                             baseless A
      where the: individual had been held in                                   responsibility for the contents of the special                   made mildlydisparaging remarks regarding                               In considering achallengeto a state court's
      contempt two days after successfully                                     action brief defendingher decision to deny                       Huries's counsel (suggesting that if the                               findingof fact, AEDPA requires deference to
      enjoiningthe judge from systematically                                   Huries's motion for a second attorney.                           counsel didnot feel upto the task of                                    state court decisions unless those decisions
      excluding blacksand women fromjuries. Id.                                But even accepting these allegations as true,                    rendering competent representation without                              are "objectively unreasonable," not just
      at 214. That same year, in Mayberryv.                                    the concerns identified by the Supreme                           court-appointed co-counsel, she should                                  incorrect. Lambert. 393 F.3d at 972; see also
      Pennsytvania,{706 F.3d 1047} 400 U.S. 455,                               Court do not arise. First, this case does not                    withdraw), the Supreme Court has never                                  Schrirov. Landrigan, 550 U.S. 465,473,127
      91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), the                              involve a contempt hearing or any analogous                      held that a judge's sour or ill-tempered                                S. Ct: 1933; 167 L.'Ed! 2d 836 (2007). In
      Court heidithat aijudge who had been                                     situation; in the special action proceeding,                     remarks alone create an appearance of bias                             considering this sort of challenge, "we must
      berated continuously by a litigant before                                Judge Hilliardneither acted as a prosecutor                      necessitating recusal. See, e.g., Liteky v.                            more than merely doubt whether the process
      finally holding himin contemptcouldnot                                   nor sought to advance the prosecutor's                           United States, 510 U.S. 540,555-56,114 S.                              operated pronertv" Tavlnrv Madrtnv 3fifi
      presideoverthe contempt triai. id. at 465                                interest, and thus was not part ofthe                            Ct. 1147,127 L. Ed. 2d 474 (1994)
                                                                 LJJ                                                                                                                                                    F.3d 992.1000 (9th Cir. 2004): "Rather, we
      ("Noone so cruelly slandered is likelyto                                 "accusatory process:" See Crater, 491 F.3d                       ("[Ejxpressions of impatience,                                          must be satisfied thai any appellate court~
      maintain that calm detachment necessary                                  at 1131. The special action proceeding was                       dissatisfaction; annoyance, and even anger,                            whom the defect is nninted nnl wnnlri he
      for fair adjudication."): see also Taylor v.                             ancillary to any determination of guilt or                       that are within Ihe bounds of what imperfect                           unreasonable in holding that the state court's
      Hayes. 418 U:S: 488, 501-02, 94 S. Ct.                                   penalty, and involved an evaluation ofthe                        men and women, even after having been                                   fact-finriinn nrncss vua«arter,nate " M
      2697,41 L. Ed.2d 897 (1974)(relationship                                 evidence only for the purpose of determining                     confirmed as federalijudges, sometimes                                 Accordingto the majority,when Judge
      between judge and lawyer was such that                                   whether a second attorney was necessary.                         display," do not necessitate recusal under 28                          Hilliard rejected Huries'sclaim (in his second
      Due Process Clause required another judge                                As the Arizona Court of Appeals noted.                           U:S.C: § 455(a)); see also United States v.                            PCR petition) that she was biased due to her
      for lawyer'scontempt trial).                                             Judge Hilliard's pleading "merely argues that                    McVeman; 695F.3d 882,892 (9th Cir.                                     participation in the special action
      The fact that all these cases arise in the                               the respondent judge ruled properly on the                       2012) (holdingithat the presiding judge's,                             proceeding, Judge Hilliardengaged in
      context of criminal contempt proceedings is                              evidence before her." Huries 1,849 P:2d at                       negative comments toward the defendant,                                objectively unreasonable fact-finding. Maj.
      instructive because this highlightsithe                                  4. This sort of pleading is fully consistent                     such as statingthat the defendant "is cieariy                          pp. at 27-28: The majority claims.that Judge
      circumstances where "the probability of                                  with impartial adjudication.                                    willing to lie whenever it suits his purpose"
      actual bias ... is too high to be                                        Second, the record here does notshow that
                                                                                                                                                                                                                       Hilliard's fact-fjnjjjng process was delicient
                                                                   CD                                                                          did not warrant recusal); cf. United States v.                          because: (1) she relied on her own
      constitutionally tolerable," Caperton, 556                               Judge Hilliard was "enmeshed" in matters                        Wilkerson. 208 F:3d 794, 799 (9th Cir. 2000)                            recollections in determining that her role in
      U.S. at 877 (quoting Withrqw, 421 U.S: at                                involving Huries, or that someone in her                        (The dissent etroneously conflates a judge's                            ihespecial action proceeding didnot require
      47). Specifically; the probability of bias                               position would likely have a personal animus                    asserted displeasure with 'assuming the role                            her recusal. Mai, op. at 28. and (2) shedid
      reaches constitutional proportions when a                                toward him. The contents of Judge Hilliard's                    of prosecutor'"). Thus, even if Judge Hilliard                          .nothold an evidentiary hearinglt^ive '
      judge isin a position to first accuse an                                 brief are unremarkable. As described above,                     had personallypennedthe special action                                  . Huries an opportunity to present evidence:
      individual of wrongdoing and then sit in                                 the brief explains the reasons Judge Hiiliard                   brief, Huries did not suffer a due process                             . Mai, op. at 28. The majority asserts that any
      judgment of whether any wrong was inifact                                denied the motion, namely, that the state's                      violation:                                                        £ appellate panel would be unreasonable in
      committed.B                                                              evidence was simple and straightfonward,                         In sum, even if we were to review the due                              Jjriding. Judge Hilliard's fact-finding process *
      The state courts rejection of Huries's due                               Huries's counsel had noLindicated an intent                     process issues in this case de novo, Huries                             ^adequate.Mai,op. at 30:B
      process claims was not contrary to these                   CO            to put on a more complex defense, and what                      would be unable to establish a due process                              With all due respect, this reasoning does not
      precedents because Huries's allegations,                                 was "required to prepare for trial in this case                 violation. From this, itfollows a fortiorithat
                                                                -J                                                                                                                                                     pass the straight face test. We cannot {706
      even If true, do not give rise to any of these                           is exactly what is required of defense                          the state court's conclusion was not                                    F.3d 1049} hold that Judge Hilliard was
      circumstances: According to the majority,                                counsel in any criminal case." The Arizona                      "contrary to" clearty established precedent.                            objectively unreasonable in ruling on this
      Huries makesifour allegations that, iftrue,                              Court of Appealsagreed withthis                                 Thus.the court is not relieved of AEDPA                                 recusal motion when federal judges, like
      "would show an unconstitutional risk of                                  conclusion.
                                                                                                                                               deference under § 2254(d)(1), and the                                   Arizona judges; routinely rule on motions to
      actual bias." Maj. op. at:31-32. These four                              Indeed, a fair review of the brief provides no                  district court's decision should be affirmed.Ill                        recuse themselves. See 28-U.S.C. § 455(a);
      allegations are.that Judge Hilliard: (1)                                 support for the majority's assertion that the                   The majoritydoes not engage in this §                                   Ariz. Code of Jud. Conduct R. 2.11(A)
      "participated in the special action                                      "tenor of Judge Milliard's responsive                           2254(d)(1) analysis: Instead,the majority                               (2009); see e:g., Miles; 697<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
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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

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                                                                                                                              51 PM Friday, March 13, 2015
     181 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,
     179 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
     732 (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
     163 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
     28 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
                                                                            1
     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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