United States District Court, D. Arizona
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE
29, 2019, the Court held a case management conference in this
matter to address the respective positions of the parties and
the proposed briefing schedules set forth in the parties'
joint status report (Doc. 17). Among the issues discussed
were Respondents' requests for the Court to prohibit
Petitioner from contacting the victims and state
court jurors absent a showing of good cause and prior
authorization of the Court and to order Petitioner to
initiate any authorized victim contact through the Office of
the Attorney General's Victim Advocate's Office
(“AG-VAO”). Having considered the respective
positions of the parties, including Petitioner's
objections to the form and substance of Respondents'
requests, the Court rules as follows.
The issues raised by Respondents have been fully briefed in
numerous cases in the District of Arizona, the Court is well
versed in the subject matter and legal argument surrounding
the issues, and, due to the late appointment of
Petitioner's counsel, time is of the essence in resolving
these issues. Thus, the Court disagrees with Petitioner's
proposal to defer ruling until additional briefing has been
Contact. Regardless of whether the Arizona Victims'
Bill of Rights (“AVBR”) applies in federal habeas
proceedings, it is clear that the federal Crime Victims'
Rights Act (“CVRA”) does apply in such
proceedings. See 18 U.S.C. § 3771(b)(2)
(“In a Federal habeas corpus proceeding arising out of
a State conviction, the court shall ensure that a crime
victim is afforded [certain enumerated] rights . . .
.”). Under the CVRA, one of the rights that must be
safeguarded in a habeas proceeding is the “right to be
treated with fairness and with respect for the victim's
dignity and privacy.” Id. § 3771(a)(8).
other judges of this Court have concluded that one of the
provisions of the AVBR-the requirement that “[t]he
defendant, the defendant's attorney or an agent of the
defendant shall only initiate contact with the victim through
the prosecutor's office, ” see A.R.S.
§ 13-4433(B)-provides a reasonable mechanism for
furthering this federally-enshrined right to fairness,
dignity, and privacy. See generally Johnson v. Ryan,
2018 WL 6573228, *2-3 (D. Ariz. 2018) (canvassing prior
decisions); but see Armstrong v. Ryan, 2019 WL
1254653 (D. Ariz. 2019). The Court agrees with those prior
decisions and will thus adopt the same rule here-Petitioner
is prohibited from contacting victims directly and must
initiate any such contact through the AG-VAO as contemplated
by state law.
Court will not, however, grant Respondents' additional
request to require Petitioner to come to the Court and obtain
a good-cause finding before even submitting a victim-contact
request to the AG-VAO. (Doc. 17 at 3.) This request has no
basis in state or federal law and would unnecessarily and
improperly enmesh the Court in Petitioner's investigative
the Court will deny Petitioner's request, made for the
first time during the July 29 hearing, to authorize him to
file a motion seeking permission to disregard the A.R.S.
§ 3344(B) process on a one-off basis if a particular
victim declines to give consent after being contacted by the
AG-VAO and he believes that victim may be important to his
investigation. Arizona law does not provide for such an
exception and the Court declines to create it here. The right
of all crime victims to fairness, dignity, and privacy under
18 U.S.C. § 3771(a)(8) is not meant to be subjected to a
balancing test or disregarded depending on the parties'
litigation and investigative strategy.
Contact. The Court rejects Respondents' request for
“an order prohibiting juror contact by Mr. Lehr and his
defense team without a prior showing of good cause.”
(Doc. 17 at 4.) Respondents have not identified any provision
of Arizona state law that would preclude such contact-indeed,
Petitioner has submitted materials suggesting “the
Arizona Supreme Court specifically vetoed a proposed rule to
limit parties' post-verdict juror contact” (Doc. 17
at 8)-and the District of Arizona's local rule regulating
post-trial juror contact (see LRCiv 39.2(b)) only
applies to contacts with federal jurors following federal
trials in this Court. Finally, Respondents' argument that
such contact should be prohibited (or tightly regulated)
because there is no right to discovery in a habeas proceeding
(Doc. 17 at 4-5) misses the mark because Petitioner is not
asking to engage in any formal, court-overseen discovery-he
merely wishes to remain free to investigate his case.
IT IS ORDERED:
Petitioner shall file a Petition for Writ of Habeas Corpus no
later than December 17, 2019.
Petitioner shall file an amended habeas petition no later
than June 17, 2020.
Respondents shall file an Answer no later than
September 15, 2020.
Petitioner shall file a reply no later than O ...