Metropolitan News-Enterprise


Tuesday, October 22, 2013


Page 1


Inmate Goes to High Court After Ninth Circuit Rejects Plea


From Staff and Wire Service Reports


The U.S. Supreme Court has been asked to review the case of an Arizona death-row inmate scheduled to be executed tomorrow.

Lawyers for Robert Glen Jones Jr. filed the petition with the nation’s highest court yesterday after the Ninth U.S. Circuit Court of Appeals affirmed a lower court ruling denying an evidentiary hearing on claims that Jones received ineffective assistance of counsel.

The 44-year-old Jones was sentenced to death for the fatal shootings of six people during two armed robberies in Tucson weeks apart in 1996. He’s scheduled to be executed by injection tomorrow at the state prison in Florence.

He was convicted and sentenced in 1998.


Condemned Inmate

Judge Ronald M. Gould, writing for the Ninth Circuit late Friday, agreed with a district judge that Jones’ lawyers were trying to improperly raise new claims that should have been presented in state court or in his unsuccessful habeas corpus petition. But the panel considered the merits of the claims, based on “the expedited nature of this appeal and its death penalty consequences,” and found them wanting.

Jones’ lawyers raised several arguments regarding the effectiveness of his trial counsel, including that they should have challenged the admissibility of evidence generated by an electronic monitoring system used to track the whereabouts of a key prosecution witness, whom Jones claims was the actual killer. They argued that Jones did not get a “fair shot” at raising these arguments earlier because the same attorney represented him in state post-conviction relief proceedings and in the federal habeas corpus case.

They also claimed that prosecutors violated Brady v. Maryland by not turning over evidence from the electronic monitoring system during the post-conviction proceedings.

They urged the Ninth Circuit to consider their arguments under Martinez v. Ryan, 132 S. Ct. 1309 (2012), which created what it described as a “narrow exception” to the rule that ineffective assistance of post-conviction counsel will not excuse the procedural default a claim of ineffective assistance of trial counsel.

Gould, however, said the alleged conflict of interest on the part of Jones’ former lawyer did not constitute the type of defect in the integrity of the proceedings that would justify the procedural default, since all of those proceedings were conducted in accord with the law applicable at the time.

The Brady claim, the judge went on to say, would have failed in any event because it was irrelevant to the issues raised on habeas corpus, because there was no showing the allegedly exculpatory evidence would have impeached the witness’ testimony, and because Brady does not extend to post-conviction proceedings.

Gould went on to cite Phelps v. Alameida, 569 F.3d 1120, a 2009 case in which the Ninth Circuit established a six-factor test for evaluating motions to reopen proceedings under Rule 60(b) of the Federal Rules of Criminal Procedure, the vehicle that Jones sought to use in order to avoid the statutory restrictions on bringing a second habeas corpus petition.

Those factors include whether there has been a change in the law, whether the petitioner was diligent in pursuing relief, whether granting the motion would upset the “parties’ reliance interest in the finality of the case,” the length of the delay in seeking relief, the relationship between the original decision and the change in the law, and the need for comity.

Given the limited nature of the change in the law wrought by Martinez, the state’s strong interest in bringing the case to an end, the fact that the issues raised by Jones have little to do with the reasons for the Martinez decision, and the negative impact upon principles of comity if the court were to grant relief upon “merits claims disguised as a Rule 60(b) motion because [Jones] initial habeas corpus petition was already fully adjudicated on the merits and denied,” the Phelps test weighs on the side of the prosecution, Gould said.

Gould was joined by Judges Richard C. Tallman and Carlos T. Bea.

The case is Jones v. Ryan, 13-16928.


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