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)
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.
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 ...