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United States v. Crawford

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 22, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARK CRAWFORD, DEFENDANT.

The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge

ORDER RE MARK CRAWFORD'S RECORD AND TO PRODUCE CJA MOTION TO SUPPLEMENT THE RECORDS (DOCS. 8-1 & 9, 1:02-CV-06498 OWW) AND THE UNITED STATES'"MOTION TO BRIEF, DEFENDANT'S MOTION TO STRIKE RE: DEFENDANT'S REPLY EXPAND THE RECORD ... AND DEFENDANT'S MOTION TO PRODUCE CJA RECORDS" (DOC 920)

I. INTRODUCTION

Before the court for decision are various evidentiary motions related to Defendant Mark Crawford's ("Crawford" or "Petitioner") pending motion pursuant to Title 18, United States Code, section 2255 ("Petition"). Petitioner contends that he did not receive the effective assistance of counsel during his June 23, 1999 trial, which resulted in a jury convicting him of racketeering, racketeering conspiracy, murder in the aid of racketeering, kidnaping in the aid of racketeering, conspiracy, embezzlement from an employee welfare benefit plan, six counts of wire fraud, three counts of money laundering, obstruction of justice by killing a witness, obstruction of justice by retaliation against a witness (murder), threatening to commit a crime of violence against a witness, and three counts of perjury.

Crawford's central contentions are that his lead trial counsel, Bill May, (1) was unprepared for trial and was impaired by physical, emotional, financial and legal problems during trial; (2) failed to call a key defense witness, Mr. Noel, who Mr. May indicated in his opening statement would testify; and (3) had an actual conflict of interest that adversely affected his representation of Mr. Crawford. Crawford maintains that he received a constitutionally inadequate defense warranting a new trial.

The following preliminary, evidentiary matters have been submitted for decision: (1) Mark Crawford's motion to Produce CJA Records, Doc. 8-1, 1:02-cv-06498; and (2) Mark Crawford's motion to expand the record with materials submitted as exhibits to his reply brief, Doc. 9, 1:02-cv-06498. The government opposes both motions and has filed a "Motion to Strike Re: Defendant's Reply Brief, Defendant's Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing Section 2255 Cases and Defendant's motion to produce CJA records." Doc. 920.*fn1 The underlying § 2255 petition will be addressed by separate memorandum opinion.

II. DISCUSSION

A. Petitioner's Motion to Augment the Record and the Government's Motion to Strike

Petitioner requests entry of an order allowing the parties to expand the record with the materials submitted as exhibits to his reply brief ("Reply"), which include (1) affidavits and sworn statements from witnesses and experts; (2) testimony from the State murder trials; (3) pleadings and deposition testimony from a lawsuit against Mr. May; (4) pleadings from the bank fraud criminal case against Les Tatum, a corrupt banker who allegedly worked with Petitioner, but who also, independently, defrauded Mr. May; and (5) certified records from the State Bar of Texas regarding Mr. May.

The government opposes this motion in part and moves to strike certain portions of Crawford's Reply, along with certain exhibits thereto, as time-barred.

Pursuant to 28 U.S.C. § 2255(f)(1), "[a] 1-year period of limitation shall apply" to motions brought under § 2255. Petitioner filed a pro se Habeas Corpus petition pursuant to 28 U.S.C. § 2255 on December 3, 2002. No dispute exists as to the timeliness of the original petition. The United States filed its response to the petition on July 26, 2006. Doc. 5, 1:02-cv-06498. Petitioner, this time with the assistance of counsel, filed his Reply on August 28, 2006. Doc. 7-1, 1:02-cv-06498.

The original petition alleged that Petitioner's lead trial counsel, Bill May, was ineffective in seven respects: (1) May failed to secure the attendance of a key defense witness, William Noel, who purportedly would have testified to a conspiracy to frame Petitioner for the Murder of Nick Brueggen; (2) May failed to adequately prepare for trial, having admitted as much to Petitioner; (3) May suffered "overwhelming personal and financial problems" compromising counsel's duty of loyalty and creating a conflict of interest; (4) May suffered financial, emotional, and psychological problems contributing to his ineffectiveness as trial counsel; (5) May slept through certain portions of the trial proceedings; (6) May failed to offer Petitioner's sons' school attendance records into evidence to corroborate his alibi defense; and (7) May failed to object to the prosecution's closing argument, in which the prosecutor asserted that Petitioner's sons were at school all day on the day of the murder. Doc. 812.

The Reply included numerous factual claims that were not discussed in the original petition, namely, that: (1) May failed to call other key witness; (2) May failed to call expert witnesses; and (3) arguments pertaining to Mays disciplinary records. Doc. 7-1, 1:02-cv-06498. The government now moves to strike the following portions of the Reply and related exhibits:

* Pages 21 through 36 of Crawford's reply brief, which argues that Mr. May failed to call certain key witnesses other than Mr. Noel.

* Declaration of Deborah Cordis-Weaver, insofar as it pertains to the failure to call witnesses other than Mr. Noel.*fn2

* Notes re: Michelle Miller, insofar as it pertains to a separate set of operative facts.

* Declaration of Samuel Holland, insofar as it pertains to a separate set of operative facts.

* Declaration of James T. O'Donnell, insofar as it pertains to a separate set of operative facts.

* Declaration John I. Thornton, insofar as it pertains to a separate set of operative facts.

* Declaration of Jaynnie Vasquez, insofar as it pertains to the failure to call witnesses other than Mr. Noel.

* Declaration Kenna R. Cavnar, insofar as it pertains to a separate set of operative facts.

* Motion for Appointment of Experts, because the issue of expert witnesses was not raised in the original petition.

* Court Order re: Appointment of Experts, because the issue of expert witnesses was not raised in the original petition.

* Defendant's Expert Witness List, because the issue of expert witnesses was not raised in the original petition.

* Trial Subpoena for Todd Houston, because this witness' testimony was not raised in the original petition.

* State of Texas trial transcripts, because the testimony of these witnesses was not raised in the original petition.

* State of Texas trial transcripts, because the issue discussed therein was not raised in the original Petition.

* Records Affidavit and attached documents, because the issue discussed therein was not raised in the original Petition.

* Documents pertaining to Mr. May's Disciplinary Record.

1. The Reply Must be Construed as a Motion to Amend the Petition

The United States moves to strike the newly-raised claims as improper and untimely amendments to the petition. Doc. 920. Petitioner rejoins that his Reply was not intended to be a formal amendment, and, therefore, "there is no statute of limitations issue here and no basis to 'strike' anything from the reply brief." Doc. 923 at 3.

Petitioner offers no legal support for his contention, which runs counter to Habeas Rule 2(c)'s requirement that a Habeas petition "specify all the grounds for relief available to the petitioner" along with "the facts supporting each ground." The purpose of requiring such specificity is to "assist the district court in determining whether the [United States] should be ordered to 'show cause why the writ should not be granted.'" Mayle v. Felix, 545 U.S. 644, 656 (2005).

[I]f it plainly appears from the petition ... that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition orders the [United States] to file an answer, that without ordering a responsive pleading. If the court pleading must "address the allegations in the petition.

Id. (citing Habeas Corpus Rule 4 and Rule 5(b)). Specificity in the pleading gives the United States notice so that it may frame its response to the petition.

Here, the Reply includes factual claims and assertions not set forth in the original petition, giving the government no notice of the new grounds for relief discussed in the Reply. The arguments raised for the first time in the Reply are improper unless the original petition is amended to include them. It is therefore appropriate to interpret Petitioner's filings as a motion to amend.

2. Relation Back of New Allegations

A habeas petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions."

28 U.S.C. § 2242. Rule 15 of the Federal Rules of Civil Procedure permits amendments that "relate[] back to the date of the original pleading." FRCP 15(c)(1). A pleading relates back when the asserted amendment arises "out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading." FRCP 15(c)(1)(B).

In Mayle, the United States Supreme Court held that "[a]n amended habeas petition ... does not relate back ... when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." 545 U.S. at 650. The petitioner in Mayle timely asserted that his Sixth Amendment Confrontation Clause rights had been violated. Subsequently, petitioner sought to amend his petition to allege a violation of his Fifth Amendment right against self-incrimination. Id. at 649. The Ninth Circuit held that the amended petition related back to the original petition because both claims arose from the same "trial and conviction in state court." Id. at 653 (citing Felix v. Mayle, 379 F.3d 612, 615 (9th Cir. 2004))(internal quotation omitted).

The Supreme Court reversed, holding that "relation back depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." Id. at 659. "So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." Id. at 664. The Court determined that the petitioner's Fifth and Sixth Amendment claims were separate occurrences under Rule 15(c), because each claim required proof of a separate set of facts. Id. at 661. Although "[b]oth involve the admission of out-of-court statements during the prosecutor's case in chief," one the statement of petitioner allegedly made under duress, and the other the videotaped statement of a witness, "the two are otherwise unrelated." Id. at 650. See also Hebner v. McGrath, 543 F.3d 1133, 1137 (9th Cir. 2008) (acknowledging that "[i[n Mayle, the Supreme Court rejected our construction as 'boundless'").

In this case, Petitioner argues the additional claims in the Reply share a common core of operative facts, because all allegations relate back to the original Petition's claim of ineffective assistance of counsel. Doc. 923 at 4. Although no cases have applied Mayle within the Ninth Circuit to analogous circumstances, other Circuits have held that subsequent factual claims of ineffective assistance of counsel do not automatically relate back to the original claim of ineffective assistance of counsel. The amendment must still stem from the common core of operative facts.

In United States v. Ciampi, 419 F.3d 20, 22 (1st Cir. 2005), petitioner was convicted by a jury of a federal gambling charge and later pled guilty to two other charges. In his timely-filed, pro se § 2255 petition, Ciampi claimed that his attorney failed to investigate misrepresentations allegedly made by the United States in the indictment, the investigation of which Ciampi maintained would have unearthed exculpatory evidence. Id. at 24. Ciampi also timely alleged that the district court failed to inform him, during his plea hearing, that he was waiving his right to appeal and his right, if any, to assert a collateral challenge. Id. at 22.

Eighteen months later, Ciampi sought to amend his original petition to assert two additional claims: (1) his counsel rendered ineffective assistance by failing to appeal his conviction on the gambling count; and (2) the government adduced insufficient evidence to support his conviction on that count. Id.

Ciampi first argued that the new ineffective assistance of counsel claim related back to the original petition because both claims arose from a failure to explain the rights he waived in accepting his plea. Id. at 23. Second, Ciampi argued that if the court permitted relation back of the ineffective assistance of counsel claim, this ruling should extend to the claim of insufficient evidence because an adequate attorney would have objected to the gambling count based on insufficient evidence. Id. The court rejected these arguments, holding that neither related back to the original petition. Id. at 23-24.

[A] petitioner does not satisfy the Rule 15 "relation back" standard merely by raising some type of ineffective assistance in the original petition, and ineffective assistance claim based upon an entirely then amending the petition to assert another distinct type of attorney misfeasance.

Id. at 24 (citing Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir. 2000)).*fn3

In Davenport, petitioner, who had been convicted of two drug offenses, timely filed his original § 2255 motion, asserting ineffective assistance on the grounds that his counsel:

(1) failed to object that the drugs did not meet the definition of "crack cocaine" because it did not contain sodium bicarbonate;

(2) failed to object to the drug weight; and (3) failed to assert that a government witness perjured himself. 217 F.3d at 1346. He later sought to amend his petition to include three additional claims of ineffective assistance on the grounds that counsel:

(1) allowed petitioner to be sentenced for three grams of cocaine that were not part of the same course of conduct as an additional forty-nine grams of cocaine; (2) relied on a summary lab report instead of requesting the complete report analyzing the three grams of cocaine; and (3) failed to inform petitioner that a plea agreement might be possible. Id. The Eleventh Circuit held that Davenport's new claims did "not arise out of the same set of facts as his original claims," even though all claims referred to a overarching allegation of ineffective assistance of counsel claim, because the new claims "arose from separate conduct and occurrences in both time and type." Id.

In United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999), the original habeas petition alleged ineffective assistance because Duffus' attorney (1) failed to contend on appeal that the evidence was insufficient to convict Duffus on money laundering; and (2) failed to object at sentencing to the district court's use of the sentencing guidelines in effect at the time of the sentencing, rather than those in effect when Duffus allegedly withdrew from the drug conspiracy for which he was convicted. Id. at 335. Duffus later sought to amend his motion, proposing to include a claim that his trial attorney had been ineffective for failing to move to suppress the drug evidence on the ground that it had been unlawfully seized. The Third Circuit held that "while Duffus asserted in his initial motion that his attorney had been ineffective, the particular claim with respect to failing to move to suppress evidence was completely new." Id. at 337. See also United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) ("Failing to file an appeal is a separate occurrence in both time and type from a failure to pursue a downward departure or failure to object to the type of drugs at issue.").

Here, the original Petition states: "[a]t the heart of this claim lies an omission to secure a witness - Mr. Noel...." Pet. at 19. One of the bases for the original ineffective assistance of counsel claim was the failure of counsel to "secure the attendance of a key defense witness, especially after telling the jury that they would hear testimony from this witness vindicating his client." Id. at 2. The "key witness" to which Petitioner explicitly refers is Mr. Noel. The original Petition does not cite any other instances of counsel's failure to call other witnesses or experts.

The Reply, however, discusses, for the first, time several other alleged key fact witnesses that May failed to call during Petitioner's trial, namely (1) Todd Houston, (2) Robert Weekley, (3) Amber Miller, and (4) Petitioner's sons' school rincipal. Doc. 7-1, 1:02-cv-06498, at 22-28. The Reply also discusses May's failure to call three expert witnesses: (a) a satellite television installation expert, (b) a medical examiner/forensic pathologist, and (c) a criminalist. Id. at 29-36.

a. Todd Houston

Todd Houston testified for the defense at Crawford's state murder trial in Rockport, Texas ("Rockport Trial"). Petitioner's Ex. ("PEX") 29. Houston was in the business of detailing cars, and Crawford was one of Houston's customers. Id. at 6-7. Houston testified at the Rockport Trial that (1) he had an appointment with Crawford on May 6, 1999 (the day of the murder) to detail Crawford's red Mercedes; (2) he met Crawford for about 20 minutes at a grocery store between 4:00 and 5:00 pm that day; and (3) Crawford was then driving a blue truck, rather than his red Mercedes. Id. at 7-11.

Houston's testimony purportedly corroborated Crawford's alibi that he was at a store at the time of the murder. Houston also purportedly refuted the testimony of the government's cooperating witness, Mike Beckcom, who testified that Crawford was driving a red Mercedes that day. Mr. Houston was subpoenaed and traveled to California. PEX 25. Mr. Litman prepared Mr. Houston to testify, believing he should have been called as a defense witness. Mr. Litman does not know why Houston was never called. PEX 4 at 120-123.

b. Robert Weekley

Robert Weekley, who lived directly across from the warehouse where the murder took place, testified at Crawford's first murder trial. PEX 30 at 1673. He recalled seeing a red Ford Explorer and a white Oldsmobile at the warehouse the week of Mr. Brueggen's disappearance. Id. at 1674. He also recalled seeing a satellite dish delivered to the warehouse. Id. at 1676. At the second trial, Mr. Weekley's prior testimony was admitted and read to the jury. Id. at 1671. May never called Weekley in the federal trial. May asserts that Mr. Weekley's testimony was unnecessary because the government never offered evidence that Crawford's red Mercedes was at the crime scene. PEX 2 at 106. This is not correct. Mike Beckom repeatedly testified that Crawford had his red Mercedes at the crime scene. 12 R 2641, 2646, 2702, 3308.

c. Amber Miller

Amber Miller was Nick Brueggen's girlfriend at the time of the murder. In his opening statement, Mr. May repeatedly told the jury that he would produce important testimony from and about Ms. Miller, suggesting (a) that Brueggen was mixed up in numerous schemes and traveling on false identification; and (b) that Miller, not Crawford, had a motive to see Brueggen dead. PEX 23 at 249, 261, 274. Ms. Miller testified in one of the state trials that she and Brueggen traveled to Italy together and that Brueggen used a passport to pass through customs. Id. at 1290. Nevertheless, Brueggen's passport bore no stamp for Italy, suggesting Brueggen had traveled to Italy under an assumed name.

16 R 3119. Ms. Miller testified that she was the beneficiary of a $100,000 life insurance policy taken out in Brueggen's name. PEX 31 at 1308. She also testified that when Brueggen left for Corpus Christi on May 6, 1999, he was clean-shaven. Id. at 1292-93, 1297. The medical examiner who testified at the Fresno trial opined that the body found at the Jacoby Lane warehouse had a visible beard and moustache that could not have grown after death. 12 R 2595-96.

d. Relation Back Analysis as to Todd Houston, Robert Weekley, and Amber Miller

The inquiry is whether May's failure to call Todd Houston, Robert Weekley, and Amber Miller are part of the same "common core of operative facts" as the original claim regarding May's failure to call Mr. Noel. The claims will not relate back if they are "different in time and type."

On the one hand, the newly-identified absent witnesses raise distinct and different factual issues. Todd Houston and Robert Weekley would have testified to the validity of Mark Crawford's alibi, namely, that Petitioner was elsewhere at the time of the murder. Robert Weekley would also have corroborated the explanation petitioner gave for the hole in the backyard of the Jacoby Road residence. Ms. Miller would have provided testimony concerning the motives she and/or others might have had to eliminate Brueggen. In contrast, Mr. Noel would have testified about the existence of a scheme and/or conspiracy to frame Mr. Crawford for Brueggen's murder. This is distinct and different from the alibi and motive evidence that would have been offered by the newly-identified absent witnesses.

On the other hand, parsing the relation back doctrine too narrowly would eviscerate its purpose. Although the most closely-related claim in the original petition focused narrowly on May's failure to call Mr. Noel, the Petition also contains a general allegation that "counsel failed to adeqately prepare for trial." Doc. 812 at 2. It is possible to view May's failure to call Mr. Noel, Mr. Houston, Mr. Weekley, and Ms. Miller as arising out of May's general failure to prepare for trial.

Applying this logic, however, would allow an unlimited number of new allegations to relate back to an original petition, so long as that petition included a broadly-worded allegation of "failure to adequately prepare for trial." Such an interpretation would be almost as "boundless" as the original approach to relation-back taken by the Ninth Circuit in Felix v. Mayle, 379 F.3d at 615, which was unequivocally rejected by the Supreme Court. Mayle, 545 U.S. at 650.

The purpose of the relation back doctrine has been identified. In rejecting the Ninth Circuit's reasoning that the "relevant 'transaction' for purposes of Rule 15(c)(2) was [petitioner's] 'trial and conviction in state court" id. at 653 (citing Felix v. Mayle, 379 F.3d at 615), the Supreme Court recognized that, while Rule 15 is designed to "qualify" the statute of limitations, it does not "repeal" it, id. 662.

Habeas Corpus Rule 2(c), we earlier noted ... instructs petitioners to "specify all [available] grounds for relief" and to "state the facts supporting each ground." Under that Rule, Felix's Confrontation Clause claim would be pleaded discretely, as would his self-incrimination claim. Each separate congeries of facts supporting the grounds for relief, the Rule suggests, would delineate an "occurrence." [T]he approach that prevailed in the Ninth Circuit, is boundless by comparison. A miscellany of claims for relief could be raised later rather than sooner and relate back, for "conduct, transaction, or occurrence" would be defined to encompass any pretrial, trial, or post-trial error that could provide a basis for challenging the conviction. An approach of that breadth... "views 'occurrence' at too high a level of generality." [citation]

Congress enacted AEDPA to advance the finality of criminal convictions. See Rhines v. Weber, 544 U.S. 269, 276 (2005). To that end, it adopted a tight time line, a one-year limitation period ordinarily running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A). If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance... The very purpose of Rule 15(c)(2), as the dissent notes, is to "qualify a statute of limitations." Post, at 2576. But "qualify" does not mean repeal.

Mayle, 545 U.S. at 660-61.

Here, the government was clearly placed on notice of the allegation regarding May's failure to call Mr. Noel, affording the government an opportunity to present evidence concerning May's strategic concerns about Mr. Noel. The government had no prior notice regarding Mr. Houston, Mr. Weekley, and Ms. Miller. Although the original allegation that May failed to call Mr. Noel is generally similar to the subsequent allegation regarding May's failure to call Houston, Weekley, and Miller, the underlying facts that would be raised by the potential testimony of these three fact witnesses are distinct from the facts raised by Mr. Noel's testimony. Moreover, the strategic reasons, if any exist, why Mr. May might have chosen not to call Mr. Noel are likely to be entirely different from any strategic reasons why he did not call Mr. Houston, Mr. Weekley, and Ms. Miller. The newly-raised claims concerning these three newly-raised fact witnesses do not relate back to the original complaint.

Petitioner's motion to amend his § 2255 motion to include these new claims is DENIED. The United States' motion to strike those portions of the Reply that concern these witnesses (pages 21-28) and related attachments (PEX 29, 30 & 31) is GRANTED.

e. Relation Back Analysis as to the Expert Witnesses

The Reply alleges that May's failure to call the satellite installation expert, the medical examiner/forensic pathologist, and the criminalist constituted ineffective assistance of counsel. The original petition failed to mention any alleged failure to call expert witnesses.

In May 1998, over a year before the trial, May applied to the district court for the appointment of expert witnesses to assist in Crawford's defense. PEX 17. May represented that: (1) an expert in insurance was necessary to help the jury understand the intricacies of the insurance business; (2) a forensic criminologist was necessary to evaluate some of the crime-scene evidence; (3) an expert in satellite television installation was needed to explain that the hole Mr. Crawford requested dug in the backyard of the Jacoby Lane residence was appropriate for a satellite dish; and (4) a medical examiner was needed to explain an alternative theory of death. Id.

The Court entered an order approving the appointment of the requested experts. PEX 19. Petitioner contends that May did nothing to secure the testimony of these or any other experts, PEX 20, nor did he even contact any of these persons, PEX 14. Petitioner maintains there could be no strategic reason for Mr. May's failure to consult with these experts. Doc. 7-1 at 30.

Petitioner relies on Woodward v. Williams, 263 F.3d 1135 (10th Cir. 2001), to support his assertion that these new claims relate back to the original Petition, because these other allegations clarify or amplify his original ineffective assistance of counsel claim.

In Woodward, the Tenth Circuit stated:

[A]n untimely amendment to a § 2255 motion which, by the date of the original motion if and only if the or theory in the original motion may ... relate back to way of additional facts, clarifies or amplifies a claim original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case. 263 F.3d at 1142 (internal citation and quotation omitted). Woodward's original petition alleged that his Due Process rights had been violated because subsequently-recanted statements were introduced at trial. Id. He then sought to amend his petition to allege that a Due Process violation occurred when the trial court failed to allow the petitioner to introduce evidence that the statement referred to in the original petition had been recanted. Id. at 1142. The Court determined that the amended petition merely clarified or amplified the original petition, because both were evidentiary arguments relating to the same set of facts: the statement itself. Id.

This case differs markedly from Woodward, because the experts here would have created and/or bolstered entirely new defense theories, independent from Mr. Noel's assertion of the existence of a conspiracy to frame Mr. Crawford. The satellite installation expert purportedly would have supported the theory that the hole in the yard of the Jacoby Lane residence was not intended to serve as a grave for Mr. Brueggen. The medical examiner/forensic pathologist purportedly would have implicated the government's cooperating witness, Mike Beckcom in the murder.*fn4 Finally, Petitioner contends that a criminalist would have helped attack the physical evidence, including the government's assertion that one fingerprint lifted from a piece of duct tape on the bottom of the box in which Mr. Brueggen was allegedly killed matched Crawford's fingerprints.

The Supreme Court made clear in Mayle that relation back is not appropriate "when the new claims depend upon events separate in both time and type from the originally raised episodes." 545 U.S. at 657. Here, the additional witnesses and experts depend upon events that are separate in time and type from those events surrounding counsel's failure to secure Mr. Noel as a witness. Petitioner's motion to amend his § 2255 motion to include these new claims is DENIED. The United States' motion to strike those portions of the Reply that concern these witnesses (pages 27-37) and related attachments (Exhs. 6 & 6D,*fn5 8, 11, 11A, 11B, 12, 13 (with the exception of those portions of this document which concern Mr. Noel), 14, 32, 33 & 34) is GRANTED.*fn6

(1) The School Principal

The original petition alleges that May's conduct was constitutionally ineffective because he failed to offer into evidence Petitioners sons' school attendance records, evidence that arguably supported Petitioner's alibi defense. The Reply argues specifically that May should have called the Principal of Petitioner's sons' school, who purportedly would have testified about the school attendance records, thereby establishing that Petitioner's sons were with him on the day of the murder.

Failure to call the Principal as a witness in the federal trial relates back to the allegation in the original petition that counsel failed to offer the attendance records into evidence, although why the Principal is necessary, as opposed to a custodian of records, is unclear. Both claims stem from a common core of operative facts; namely, May's failure to admit the school's attendance records into evidence and any strategic reasons May might have had for not doing so. Petitioner's motion to amend his § 2255 motion to include a claim regarding May's failure to call the school Principal is GRANTED. The United States' motion to strike those portions of the Reply that concern this witness is DENIED.

(2) May's Disciplinary Records

Petitioner's Reply brief discusses Mr. May's disciplinary record before the State Bar of Texas. Doc. 7-1 at 37-38. These disciplinary matters were not discussed in the original petition. Specifically, the Reply states:

In 1993, Mr. May received a private reprimand from the State Bar of Texas for failing to advise a client that a habeas corpus had been denied. Exh. 38 at 47:7-47:16 (B. May Depo in Kleberg v. May). In 2003, Mr. May was violations. Exh. 40 (State Bar Orders). In one publicly reprimanded by the State Bar for two separate representation in 1999 and a second representation from 2001-02, Mr. May was disciplined for failure to communicate adequately with his clients and failure to return one of the client's file upon request.

In 2006, the State Bar placed Mr. May on probated suspension for conduct that occurred in 2001. Mr. May took a $7500 fee from a client for representation in a criminal case, filed a notice of appearance, and then did nothing despite repeated calls from the client's family. Id May did not return the unearned fee despite repeated . After his services were terminated, Mr. requests. After a grievance hearing, the State Bar placed Mr. May on a two-year, probated suspension for failing to adequately represent and communicate with a client. Id.

Id. at 38.

The United States argues that these references to May's Disciplinary Records should also be stricken as untimely amendments to the petition.

Petitioner points to Sanders v. Ratelle, 21 F.3d 1446, 1460 (9th Cir. 1994), for the proposition that disciplinary records are admissible to support a claim of ineffective assistance of counsel whether or not the disciplinary records are mentioned in the original petition. The habeas petitioner in Sanders alleged that his lawyer failed to investigate key aspects of his defense, and, specifically, that he failed to interview a third party who confessed to the crime. Id. at 1456. The government argued that counsel failed to pursue this line of defense for strategic reasons, namely, that the existence of a confession was inconsistent with petitioner's other defenses. Id. at 1456, 1459. The Ninth Circuit reasoned that the government's argument "ma[de] little sense" in light of the fact that defense counsel failed to conduct "even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer and whether to call [the confessor] as a witness." Id. at 1456.

The Ninth Circuit considered defense counsel's disciplinary record as additional support for its conclusion that petitioner received ineffective assistance of counsel. Specifically, the attorney had been "disbarred from the practice of law... [for] a course of conduct demonstrating complete indifference to his legal and ethical duties to the great detriment of his clients." Id. at 1460. The relevant course of conduct, spanning almost a decade, including the year in which petitioner was convicted, demonstrated that, after being retained by clients, "the attorney did nothing to investigate or further their cases." Id. This evidence "directly refut[ed] the [government's] argument that [defense counsel's] failure to use [the] confessions was based on a strategic decision about how best to represent his client...." Id.

There is no discussion in Sanders about whether counsel's disciplinary records were timely raised in the original petition. Accordingly, Sanders does not directly support Petitioner's argument that May's disciplinary records should be admitted as a matter of course, even though they were not mentioned in the original Petition. Even assuming, arguendo, that Sanders does support consideration of disciplinary records regardless of when they are presented, Petitioner's reliance on Sanders is misplaced. Sanders merely instructs courts to consider disciplinary records that reflect a long-standing course of conduct closely related to the unlawful conduct alleged in the petition.

Here, Mr. May's disciplinary records reflect no pervasive pattern of conduct, let alone one related to his alleged failure to prepare for trials and/or the allegation that he operated under a conflict of interest at the time of the trial in dispute. In contrast, his disciplinary records reflect occasional communication failures and instances of financial misconduct. These incidents do not bear upon the conduct alleged in this case. The United States' motion to strike those portions of the Reply that concern May's disciplinary record (page 38), associated attachments (PEX 38, 40 & 43), and related supplemental filings (Docs. 924 and 929), is GRANTED. .

B. Defendant's Motion to Produce CJA Records

Petitioner also moves for an order requiring the CJA Panel Administrator to produce all billing records and CJA 20 forms submitted by Bill May for work performed on behalf of Mr. Crawford in this case.

1. CJA Billing Records

Petitioner alleges that Mr. May was unprepared for trial, and that this failure manifested itself in various ways, including May's failure to secure the testimony of several key fact and expert witnesses. Petitioner asserts that discovery of the billing records Mr. May provided to the CJA Panel will "help establish what effort, if any, Mr. May made to contact these witnesses." Doc. 8-1, 1:02-CV-6498, at ¶2. However, with the exception of evidence pertaining to Mr. Noel and Petitioner's sons' school Principal, evidence regarding May's alleged failure to call other witnesses has been stricken as untimely. The CJA Billing records would shed no additional light on the Petitioner's allegations regarding Mr. Noel and/or the Principal because there is no dispute as to Mr. May's efforts, or lack thereof, to call them.

Petitioner's motion to produce the CJA billing records is DENIED.

2. CJA 20 Forms

Petitioner asserts that discovery in the context of the § 2255 motion has revealed that Mr. May never informed the Panel Administrator of certain private compensation he was receiving during the trial. Mr. May would have been required to certify, on CJA 20 forms, whether or not he received any such outside compensation. Mr. May's certifications on these forms go to his credibility generally and are therefore relevant. Petitioner's motion to produce CJA 20 forms from the time period leading up to and including the June 1999 trial is GRANTED. The CJA Panel administrator is directed to deliver these records to the Clerk of Court on or before March 6, 2009. The Clerk will then distribute copies to counsel.

III. CONCLUSION

For the reasons set forth above:

(1) Petitioner's Reply is construed as a motion to amend his § 2255 motion;

(a) Construed as such, Petitioner's motion to amend is GRANTED as to evidence pertaining to May's alleged failure to call Petitioner's sons' Principal and DENIED as to all other evidence regarding May's failure to call Mr. Houston, Mr. Weekley, Ms. Miller and the expert witnesses, as well as May's disciplinary records.

(2) The United States' motion to strike is GRANTED as to all argument and evidence pertaining to May's alleged failure to call Mr. Houston, Mr. Weekley, Ms. Miller and the expert witnesses, as well as May's disciplinary records.

(3) Petitioner's motion for an order requiring the CJA Panel Administrator to produce CJA billing records from his trial is DENIED.

(4) Petitioner's motion for an order requiring the CJA Panel Administrator to produce CJA 20 Forms from his trial is GRANTED. The Panel Administrator shall forward responsive documents to the Clerk of Court on or before March 6, 2009. The Clerk of Court will provide copies to counsel.

(5) Petitioner shall have 10 days from counsels' receipt of the CJA 20 records to file a supplemental brief of no more than 10 pages concerning those records. The United States shall have an additional 10 days to file a response of no more than 10 pages.

SO ORDERED


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