Immunity

1. Allen v. City & County of Honolulu, 39 F.3d 936 (9th Cir. 1994)
   Prison official was not entitled to qualified immunity as to claim that he forced inmate to choose between right to outdoor exercise and right to law library access, both of which rights were clearly established.
2. Armendariz v. Penman, 31 F.3d 860 (9th Cir. 1994)
   Supervisor may be liable based on either (1) personal involvement in constitutional deprivation or (2) sufficient casual connection between superior's wrongful conduct and the constitutional violation.
3. Bagola v. Kindt, 39 F.3d 779 (7th Cir. 1994)
   After a prison worker had his hand cut off by the machine he was working on he brought a Bivens action. The court held that the federal worker's compensation statute was not a bar in a Bivens action and appointed him counsel in the lower court.
4. Benitez v. WLFF, 985 F2d 662 (2nd Cir. 1993)
   Jones v. Counce, 7 F3d 1359 (8th Cir. 1993)
   Qualified immunity defense fails if public officer violates clearly established right because a reasonably competent official should know the law governing this conduct.
5. Bivens v. Six Unknown Agents, 403 US 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1970)
   Supreme Court held that government agents may beheld liable for violating constitutional rights.
6. Buckley v. Fitzsimmons, 509 US 125 L.Ed.2d 209, 113 S.Ct. (1993)
   Prosecutors hold no absolute immunity from 42 USCS §1983 damages claims alleging; 1) fabrication of evidence during preliminary investigation, and 2) making of false statements at a press conference.
7. Dugan v. Rank, 372 US 609, 10 L.Ed.2d 15, 83 S.Ct. 999 (1963)
   B.K. Instrument, Inc. v. US, 715 F.2d 713 (2nd Cir. 1983)
   There are two instances when the plaintiff can sue the United States directly: 1) Action by an officer beyond his statutorily defined powers; 2) where the powers or the manner of their execution are unconstitutional. B. K. @ 723 724.
8. Edgar v. City Of Livingston, 40 F.3d 312 (9th Cir. 1994)
   State judge does not enjoy judicial immunity from unconstitutional behavior when facts are sufficient to grant party declaratory or injunctive relief against judge.
9. Gardiner v. Incorporated Village Of Endicott, 50 F.3d 151 (2nd Cir. 1995)
   For qualified immunity to attach, it is not enough that officer believes his conduct comports with clearly established rights; that belief must also be reasonable.
10. Guzman - Rivera v. Rivera - Cruz, 55 F.3d 26 (1st Cir. 1995)
    

    1. Absolute immunity protects the prosecutor's role as advocate for the state, not his or her role as an administrator or investigative officer.
    2. Prosecutorial conduct is given absolute immunity only if it is intimately associated with the judicial phase of the criminal process.

    
    
11. Hays County Guardian v. Supple, 969 F2d III (5th Cir. 1992)
    Hunt v. Bennett, 17 F.3d 1263 (10th Cir. 1994)
    Eleventh Amendment does not bar state law actions against state officials in their individual capacities.
    
    
12. Mandonado - Denis v. Castillo - Rodriguez, 23 F.3d 576 (1st Cir. 1994)
    Inadequate training of subordinates may be basis for §1983 claim.
    
    
13. Mitchell v. Forsyth. 472 US 511, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985)
    Cameron v. I.R.S., 773 F.2d 126 (1985)
    The Attorney General and I.R.S. agents do not have absolute immunity.
    
    
14. Mendenhall v. Goldsmith, 59 F.3d 685 (7th Cir. 1995)
    For purposes of immunity analysis, federal officials are indistinguishable from state officials and receive no greater degree of protection from constitutional claims.
    
    
15. Monell v. Dept. Social Services, 426 US 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978)
    McKinney v. Dekalb County, Ga., 997 F.2d 1440 (11th Cir. 1993)
    Canton v. Harris, 489 US 378,103 L.Ed.2d 412, 109 S.Ct. 1197 (1989)
    Sovereign immunity does not shield governmental entities from suit in § 1983 action alleging inadequacy of official policy or custom.
    
    
16. Morales v. Portuondo, 165 F. Supp.2d 601 (S.D.N.Y. 2001)
    Granting relief to codefendant in Kings following prosecutor’s confession on air; ordering "unconditional discharge", barring re-trial, and requiring "expungement of the record of petitioner's convictions and all references to them in the public record."
    
    
17. Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995)
    Standard for denying qualified immunity in civil rights action involves two part analysis: whether law governing official's conduct was clearly established, and whether reasonable officer could have believed that conduct was lawful under that law.
    
    
18. Pierson v. Ray, 386 US 547, 19 LEd2d 288, 87 SCt 1213 (1967)
    Judges are totally immune from liability for damages for acts committed within their judicial jurisdiction. It is also applicable to prosecutors and legislators (Authors note: this was true in 1967 but today there are a number of other legal avenues available).
    
    
19. Procunier v. Navarette, 434 US 555, 55 L.Ed.2d 24, 98 S.Ct. 855 (1978)
    Prison officials not immune from liabilities for official acts when motivated by malicious intent to deprive prisoners of constitutional rights.
    
    
20. Pulliam v. Allen, 466 US 522 , 80 L.Ed2.d 565, 104 S.Ct. 1970 (1984)
    Wahl v. McIver, 773 F.2d 1169, 1172 (11th Cir. 1985)
    Judicial immunity however, concerns only monetary liability and does not bar injunctive relief against judicial officers acting in their judicial capacity (1104 S.Ct. @ 1981). Furthermore, judicial immunity does not bar an award of attorneys fees under 42 USC §1983. ID at 104 S.Ct. 1982.
    
    
21. Schroeder v. McDonald, 41 F.3d 1272 (9th Cir. 1994)
    Prison officials were not entitled to qualified immunity for transferring inmate from minimum security facility to medium security facility without following mandatory prison regulations.
    
    
22. Scott v. Glumac, 3 F.3d 163 (7th Cir. 1993)
    Because doctrine of qualified immunity entitles officers to immunize from both civil liability and burdens of litigation, it is important to resolve immunity question at earliest possible stage.
    
    
23. Smith v. Wade, 461 US 30, 75 L.Ed.2d 632, 103 S.Ct. 1625 (1983)
    Hill v. Marshall, 962 F.2d 1209 (6th Cir. 1992)
    Prison official could be personally liable in civil rights action for actions taken in the course of his office. SMITH grants punitive damages.
    
    
24. State v. Holsinger, (1977) 115 Ariz. 271, 564 P.2d 1238
    Prosecutors failure to disclose to defense counsel that immunity had been granted to the only state witness who tended to corroborate testimony of accomplice in murder prosecution constituted prejudicial error requiring reversal of defendant's conviction, since fact of immunity was irrelevant, not only to test witnesses credibility, but also to determine if witness was herself and accomplice.
    
    
25. Tower v. Glover, 467 US 914, 81 L.Ed.2d 758, 104 S.Ct. 2820 (1984)
    Public defenders held NOT IMMUNE from liability in a §1983 action alleging conspiracy with state officials to deprive clients of federal rights.
    
    
26. Weg v. Macchia, 995 F.2d 15 (2nd Cir. 1993)
    Public officials receive protection of qualified immunity if they establish that it was objectively reasonable to believe that their acts did not violate clearly established rights.
    
    
27. White v. Farrier, 849 F.2d 322 (8th Cir. 1988)
    Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993)
    Government officials may be held liable for constitutional wrongs caused by their failure to adequately train or supervise subordinates.

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Indictment

1. F.R.Cr.P. Rule 7.0 (b) Waiver of Indictment
   An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant in open court and after being advised of the nature of the charge and of the defendant's right-waves prosecution by indictment.
   
   
2. Alexander v. L.A., 405 US 625,633 (1972)
   Fourteenth amendment due process clause requires fair trial but does not require state indictment by grand jury.
   
   
3. Allen v. US, 164 US 482, 41 L.Ed. 528, 17 S.Ct. 1156 (1896)
   US v. Arpan, 861 F.2d 1073 (8th Cir. 1988)
   US v. Robinson, 953 F.2d 433 (8th Cir. 1992)
   

   1. Supplemental jury instruction of the "dynamite" variety are grounds for "reversible error" due to their strong coercive effect on the jury.
   2. When the judge told the jury they had to bring in a decision he effectively denied the defendant the right to a hung jury.

   
   
4. Ball v. US, 470 US 856, 864 - 65 (1985)
   Proper way to remedy multiplictious convictions is to vacate all but one conviction.
   
   
5. Beverly v. Walker, (N.D. N.Y. 1995) 899 F.Supp. 900
   USC.A. Fifth Amendment. Indictment met constitutional standards, where in each count specified time and place at which alleged crime occurred and set forth the essential elements of crimes and indictment sufficiently informed defendant of charges against him.
   
   
6. Boothe v. Wyrick, W.D. Mo. 1978, 452 F.Supp. 1304
   Errors turning on the sufficiency of, or amendments to an indictment are not reviewable in federal habeas corpus unless the indictment is constitutionally defective.
   
   
7. Buttrum v. Black, (N.D. GA. 1989) 721 F.Supp. 1268 affirmed 908 F.2d 695, rehearing denied 916 F.2d 719
   An amendment of indictment occurs when charging terms of indictment are altered, either literally, or in effect by prosecutor or court after grand jury has last passed upon them.
   
   
8. Cole v. State of Arkansas, 68 S.Ct. 514 (1948)
   No principal of procedural due process is more clearly established than that notice of specific charge, and a chance to be heard in a trial of that issue raised by the charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. In Re Oliver, 333 US 257, 68 S.Ct. 499 and cases there cited.
   
   
9. Ex Parte, Bain, 121 US 1, 7 S.Ct. 781, 30 L.Ed. 849 (1987)
   The instant that the court amends the indictment, the court loses jurisdiction. At that point in time, there is nothing that can cure the defect. It is jurisdictional defect. Upon an indictment so charged the court can proceed no further. There is nothing for which the prisoner can be held to answer. A trial on such indictment is void.
   
   
10. Ex Parte Wilson, 114 US 417, 426 (1885)
    Defendant has the right to insist he shall not be put upon trial, except on the accusation of a grand jury.
    
    
11. Feels v. Soloff, 920 F.2d 1114, 1118 (2nd Cir. 1990)
    Fifth Amendment right to grand jury does not pertain to state because not incorporated by the fourteenth amendment.
    
    
12. Forgy v. Norris, (1995, CA8 Ark.) 64 F.3d 399, reh. denied, (1995, CA 8 Ark) 1995 US App. LEXIS 27956
    Defendants constitutional right to notice of charges against him was violated by information charging him with burglary with intent to commit crime punishable by "imprisonment" where he was tried for burglary with intent to commit attempted theft, since information lacked specificity by failing to give adequate notice of burglary charge.
    
    
13. Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986)
    The information in a citation to a statute which merely defined the degree of murder, identifying murder by torture as one type of first-degree murder, did not provide the defendant adequate notice of the specific charge of first-degree murder by torture.
    
    
14. Gray v. Raines, 662 F.2d 569
    Gray was convicted in Arizona state court of second degree or "statutory" rape under A.R.S. § 13-611(B). He argues on this appeal that the Arizona statutory rape law (since repealed) under which he was convicted discriminated against males and therefore violated the Equal Protection Clause of the United States Constitution. He also argues that, because he was charged in the information only with first degree or forcible rape, his right to due process was violated when the trial judge included second degree rape in his charge to the jury. Obviously, the State of Arizona may organize its criminal laws in whatever manner it chooses. The state cannot, however, use a classification scheme to circumvent the constitutional notice requirement imposed on the state when charging a defendant with an offense. The ruling of the Court today applies only to the conviction for second degree rape; the [**15] conviction for lewd and lascivious acts is not disturbed. The writ of habeas corpus is granted and this case is remanded to the District Court for action consistent with this opinion. Reversed and remanded.
    
    
15. Groppie v. Leslie, 404 US 496, 30 L.Ed.2d 632, 92 S.Ct. 582 (1972)
    Due process clause requires that minimum net deprivation of life, liberty or property by an adjudication be preceded by notice and opportunity for hearing appropriate to nature of case.
    
    
16. Hamilton v. McCotter, 772 F.2d 171 (5th Cir. 1985)
    The Constitution, statute, or court rule should be checked to determine whether the state may prosecuted by indictment. Some states may allow prosecution to be commenced either by an information, complaint, or indictment.
    
    
17. Hanling v. US, 418 US 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)
    LaMere v. Risley, 827 F.2d 622, 624 (9th Cir. 1987)
    US v. Caperell, 938 F.2d 975 (C.A. (Nev.) 1991)
    An indictment must set forth the elements of the offense charged and contain a statement of facts and circumstances sufficient to inform the defendant of the elements of the specific offense.
    
    
18. Inciso v. US, 429 US 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977)
    US v. Phaester, 544 F.2d 353, 361 (9th Cir. 1976) cert. denied
    Furthermore, tardy challenges to an indictment must be construed according to common sense.
    
    
19. Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1992)
    States that do not prosecuted by indictment will usually initiate prosecution by filing on an information or complaint. Offenses which can be prosecuted by grand jury indictment can also be prosecuted by information if in open court the accused waves his right to grand jury indictment after the charges have been read. See: US v. Ferguson.
    
    
20. Johnson v. Sayre, 158 US 103, 114 (1895)
    Lee v. Madigan, 358 US 228, 232 - 35, 241 (1959)
    The protection of indictment by grand jury extends to all persons except those serving in the armed forces.
    
    
21. Kaneshiro v. US, 445 F.2d 1266, 1269 (9th Cir.) (internal quotations omitted) cert. denied, 404 US 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971)
    When the sufficiency of the indictment challenged after trial, it is only required that the necessary facts appear in any form or by fair construction can be found within the terms of the indictment. Where an indictment is questioned post-trial, reference to a statute will cure some defects. But the defendant must have been given adequate knowledge of the missing elements in order to satisfy the due process requirement, otherwise reference to a statute will not cure the defect in the indictment.
    
    
22. Kincaid v. Sparkman, 175 F.3d 444 (6th Cir. 1999)
    A criminal defendant is entitled to be tried on charges contained in the indictment and only on those charges.
    
    
23. Lowery v. McCaughtry, CA7 (Wis.) 1992, 954 F.2d 422, cert. denied, 113 S.Ct. 104, 506 US 834, 121 L.Ed.2d 63
    If state would treat habeas petitioner's claims as waived or forfeited, then there is no available state correction process and exhaustion is not essential.
    
    
24. LTS v. Plenty Arrows, 946 F.2d 62 (8th Cir. 1991)
    Verdict cannot be based on an act that could have occurred after return of indictment.
    
    
25. McNally v. US, 483 US 350 97 L.Ed.2d) 292, 107 S.Ct. 2875 (1987)
    US v. Gimbel, 830 F.2d 621 (7th Cir. 1987)
    To be valid, an indictment must allege that the defendant performed acts which, if proven, constituted a violation of the law that he or she is charged with violating.
    
    
26. Mechling v. Slayton, ED. Va. 1973, 361 F. Supp. 770
    Generally, the scope of review of a challenged state indictment in federal habeas corpus proceeding is confined to questions of whether the alleged defects go to the jurisdiction of the trial court or deprived defendant of the right to be sufficiently informed of the charges against him.
    
    
27. Nethery v. Collins, 993 F.2d 1154 (5th Cir. 1993)
    Deficient indictment will provide basis for federal habeas relief if defect is so significant that convicting court lacked jurisdiction under state law.
    
    
28. Normandeau, 800 F.2d at 958 (internal quotations omitted)
    A minor or technical deficiency in the indictment will not reverse the conviction if there is no prejudice.
    
    
29. Note: Indictments that charge the defendant with one act or another, the word "or" may not leave the averment uncertain as to which of the two or more things is meant. An allegation that charges the commission of a crime by one act or another is defective if it does not clearly inform the defendant of the charge so that a defense can be prepared to meet it. The same standard is applied to pleadings in civil cases, where both disjunctive allegations and disjunctive denials generally constitute defective pleadings and are therefore inadmissible.
    
    
30. Note: For an information to be valid you need only contain the same information required in a grand jury indictment.
    
    
31. Note: Each offense must be charged in a separate account in an indictment or complaint.
    
    
32. Note: "Superseding indictment" is an indictment filed without the dismissal of a preceding indictment.
    
    
33. Note: Two circuits have held an indictment is not multiplictious if it divides a series of similar offenses into several counts in order to meet the jurisdictional requirement of the charge to statute, as long as the division into counts is logical and based on distinct time periods or distinct locations.
    
    
34. Pavel v. Hollins, 261 F.3d 210
    Appeal from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, then-Chief Judge), denying petitioner Kenneth G. Pavel's application for a writ of habeas corpus on the ground that Pavel was not convicted in state court in violation of his federal right to effective assistance of counsel. On appeal, Pavel emphasizes that his trial attorney (1) did not prepare a defense, on the theory that the charges against Pavel would be dismissed at the close of the prosecution's case; (2) failed to call two important fact witnesses, with the content of whose putative testimony the attorney was familiar; and (3) did not call as a witness a medical expert. In these circumstances, Pavel argues, his right to effective assistance of counsel was violated. We agree. Accordingly, we reverse the judgment of the District Court, vacate the state court judgment of conviction, and remand the cause. On remand, the District Court shall issue a writ of habeas corpus to Mr. Pavel on the thirtieth calendar day after the issuance of our mandate unless New York State has, by that point, taken concrete and substantial steps to expeditiously retry him. Judgment of [**2] District Court reversed; judgment of conviction vacated, cause remanded.
    
    
35. Peterson v. Jacobson, 2 Ariz. App. 593, at 595, 411 P.2d 31 (1966)
    In order to render a valid judgment and sentence in a criminal prosecution, the court must have jurisdiction of both of the offense and of the defendants person... Jurisdiction of a court to try and punish an individual of a crime cannot be acquired by the court's mere assertion of jurisdiction, but must be invoked or acquired in the mode prescribed by law. If not so invoked, any judgment is a nullity.
    
    
36. Romberg v. Nichols, 953 F.2d 1152 (9th Cir. 1992)
    When jury compromises its verdict, verdict shall not stand.
    
    
37. Scalf v. Bennett, CA8 (Iowa) 1969, 408 F.2d 325,cert. denied, 90 S.Ct. 175, 396 US 887, 24 L.Ed.2d 161
    Deckard v. Swenson, D.C. Mo. 1971, 335 F. Supp. 992
    The writ of habeas corpus will not be used to test indictment unless it is constitutionally defective.
    
    
38. Shepherd v. Rees, 909 F.2d 1234 (9th Cir. 1990)
    A trial cannot be fair unless nature of charges against a defendant are adequately made known to him in a timely fashion. See: Strickland v. Washington (1984)
    
    
39. Spencer v. Coconino County Superior Court, Div. 3, No. 16609-SA, Supreme Court of Arizona, 136 Ariz. 608; 667 P.2d 1323; 1983 Ariz. LEXIS 225, August 3, 1983
    The indictment charging the accused with one count each of incest and child molestation regarding the numerous occasions he had sexual relations with his 15-year-old daughter was duplicitous and therefore fatally defective.
    
    
40. State v. Anthony Charles Davis, 206 Ariz. 377, 79 P.3d 64, Ariz. Supreme Court, No. CR-01-0423-PR, decided October 30, 2003
    This case refers to time elements (During February or March) not allowable, must give dates in close proximity, on or about a given date. See also: State v. Verdugo.
    
    
41. State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966)
    The Supreme Court of Ariz. found there was no essential difference between an information in an indictment.
    
    
42. State v. Curry, 1 CA-CR 94-0617, 1 CA-CR 95-0056 (Consolidated), COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT C, 187 Ariz. 623; 931 P.2d 1133; 1996 Ariz. App. LEXIS 196; 225 Ariz. Adv. Rep. 3, September 10, 1996, Filed , Petition for Review DENIED on February 26, 1997 by Arizona Supreme Court No. CR-96-0579-PR. AFFIRMED IN PART; REVERSED IN PART; REMANDED
    Amendment of an indictment was proper where the it did not prejudice defendant by depriving him of notice of the charges and where an acquittal of the amended charge provided a double jeopardy defense to a prosecution on the original charge.
    
    
43. State v. Davis, 206 Ariz. 377, 399, 79 P.2d 64, 76 (2003)
    The Arizona Supreme Court said, "each offense must be charged in a separate count" in an indictment or complaint. Charging more than one act in a single count is forbidden because it does not provide adequate notice of the charged to be defended, it presents a hazard of non-unanimous jury verdict, and period.. makes precise pleading of prior jeopardy impossible in the event of later prosecution.
    
    
44. State v. Hill, (App. Div. 1 1976) 26 Ariz. App. 37, 545 P.2d 999
    In order for principal of double jeopardy to apply, the two alleged crimes must have identical components; test to be applied is whether facts charged in latter information would if found true, have justified conviction under earlier information.
    
    
45. State v. Johnson, 2 CA-CR 98-0572, COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT A, 2000 Ariz. App. LEXIS 46; 318 Ariz. Adv. Rep. 3, March 30, 2000, Filed , THIS DECISION IS SUBJECT TO FURTHER APPELLATE REVIEW. MOTIONS FOR RECONSIDERATION OR PETITIONS FOR REVIEW TO THE ARIZONA SUPREME COURT MAY BE PENDING. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
    Trial court erred by allowing State to amend criminal information after victim testified, since amended charges were of different nature than original charges and appellant was not afforded adequate opportunity to defend.
    
    
46. State v. O'Grady, 312 US 329, 61 S.Ct. 572, 85 L.Ed. 859, 1941 US Lexis 921
    Petitioner pled guilty to the simple burglary and was sentenced to burglary with explosives. Rights under fourteenth amendment due process clause requires defendant to be notified of the charge against him and to be supplied with a copy of the charging document.
    
    
47. State v. Smith, 66 Ariz. 376, 378, 189 P.2d 205 (1948)
    Where the Arizona Supreme Court said in 1948... Where the challenge to the information is based upon an omission in the averment of the essential elements of the crime, jurisdiction of the subject matter cannot be conferred by consent... And hence objection to the jurisdiction may be made for the first time in Supreme Court. The Smith court further said:... We said if an information does not allege a public offense, advantage may be taken thereof at any time. [2][3] we must conclude that it is the settled law of this state that in a criminal case the court acquires no jurisdiction of the subject matter of the alleged offense unless the jurisdictional facts constituting the offenses are set forth in the information, and that where the court is without jurisdiction of the subject matter 8 judgment of conviction will be reversed in this court even on plea of guilty, for jurisdiction cannot be conferred by consent. 66 Ariz. at 379.
    
    
48. State v. Verdugo, (1973) 109 Ariz. 391, 510 P.2d 37
    Precise time of act is unnecessary to be proven, if it is alleged that it occurred "on or about" a given date.
    
    
49. State v. Whitney, 159 Ariz. 476, 480, 768P.2d 638,642 (1983)
    (Citing A.R.Cr.P. Rule 13.3 (a)). Charging more than one act in a single count is forbidden because it does not provide adequate notice of the charge to be defended... Presents a hazard of non-unanimous jury verdict and... Makes a precise pleading of prior jeopardy impossible in the event of a later prosecution.
    
    
50. Thomas v. Harrelson, 942 F.2d 1530
    Defendant's murder conviction was affirmed by the Court of Criminal Appeals of Alabama, 455 So.2d 278. Defendant's petition for writ of habeas corpus was denied on the merits without evidentiary hearing by the United States District Court for the Northern District of Alabama, No. CV89-A-27-S,Clarence W. Allgood, J. Defendant appealed. The Court of Appeals, Godbold, Senior Circuit Judge, held that: (1) there was no procedural bar; (2) indictment was constructively amended; and (3) defendant's trial counsel was ineffective for failing to raise issue of constructive amendment. Reversed and remanded.
    
    
51. US v. Abreu, 952 F.2d 1458 (1st Cir. 1992)
    Function of bill of particulars is to provide defendant with necessary details of charges against him to enable him to prepare defense, avoid surprise against trial, and protect against double jeopardy.
    
    
52. US v. Anderson, 872 F.2d 1508,1509 - 20 (11th Cir.)
    Remedy for sentence resulting from multiplicity is to vacate all sentences and remand for resentencing. Cert. denied, 493 US 1025 (1989).
    
    
53. US v. Blockburger, 52 S.Ct. 180,284 US 299 (1932)
    Each of the offenses created required proof of a different element.
    
    
54. US v. Brandon, 17 F.3d 409,422 (1st Cir.)
    Multiplictious indictments violate Fifth Amendment double jeopardy clause, because raises danger that defendant will receive more than one sentence for single crime. cert. denied, 115 S.Ct. 80 (1994).
    
    
55. US v. Caldwell, 176 F.3d 898, 903 (6th Cir. 1999)
    Indictment must be sufficiently specific to enable defendant to plead double jeopardy in subsequent proceeding, if charged with the same crime based on the same facts.
    
    
56. US v. Carll, 105 US 611 (1882)
    The Carll's reasoning is simple and logical, in that, all statutes state and federal are written disjunctively which separate all the various elements are ways to violate a statute, and if the charging instrument (i.e. indictment, information or complaint) merely mimics the states language, then it is insufficient in alleging offense because it is duplictious. Where the elements of the crime have to be ascertained by reference to the common law or two other statutes, it is not sufficient to set forth the offense in the words of the state. The facts necessary to bring the case within the statutory definition must also be alleged.
57. USCA 5
    US v. Chandler, (1995, CA8 Ark) 66 F.3d 1460
    The sufficiency of indictment. Although superseding indictment includes language not provided in criminal statute prohibiting acceptance of gratuity, indictment is considered sufficient if it fairly informs the accused of charges against him and allows him to plead double jeopardy as bar to future prosecution.
    
    
58. US v. Chichy, (C.A.6, Ohio, 1993) 1 F.3d 1501 cert. denied 114 S.Ct. 620, 510 US 1019, 126 L.Ed.2d 584
    Indictment is presumed sufficient if it tracks statutory language, cites elements of crimes charged and provides approximate dates in times.
    
    
59. US v. Clements, 22 F.3d 73 (8th Cir. 1994)
    

    1. Under Fifth Amendment, defendant has a right to be tried only on charges contained in indictment returned by grand jury.
    2. The Fifth Amendment requires that the defendant be tried only on charges handed down by grand jury and, that's indictment has been returned, its charges may not be broadened through amendment except by grand jury.
    3. Variance rises to the level of reversible error where evidence presented trial, together with jury instructions, raises possibility to defendant was convicted on offense other than that charged in the indictment.

    
    
60. US v. Cochran, 17 F3d 56 (3rd Cir. 1994)
    US v. Pupo, 841 F2d 1235 (4th Cir. 1988)
    Indictment that fails to charge all essential elements of crime must be dismissed.
    
    
61. US v. Critzer, 951 F.2d 306,307 - 08 (11th Cir. 1992) (per curiam)
    Court should look only at face of indictment, not at facts government expects to prove.
    
    
62. US v. Crowell, 997 F.2d 146 (6th Cir. 1993)
    General rule is that indictment cannot be used as evidence against person.
    
    
63. US v. Delano, 55 F3d 720 (2nd Cir. 1995)
    Constructive amendments of indictment are per se violations of the Fifth Amendment chat require reversal even without showing of prejudice.
    
    
64. US v. Dischner, 960 F.2d 870 (9th Cir. 1992)
    Indictment must be read as a whole and construed according to common sense.
    
    
65. US v. Dubo, 186 F.3d 1177 (9th Cir. 1999)
    If properly challenged prior to trial, an indictments complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment.
    
    
66. US v. Duncan, 850 F.2d 1104, 1108, n.4 (6th Cir. 1988) (dictum)
    US v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986)
    Also pushes indictment may result in multiple sentences for one crime and may suggest to jury that defendant committed several crimes.
    
    
67. US v. Edmonson, 962 F.2d 1535 (10th Cir. 1992)
    US v. Gayle, 936 F.2d 1234 (11th Cir. 1991)
    Indictment must be competent and forthright attempt to notify accused of extent of his alleged culpability.
    
    
68. US v. Felix, 503 US 378 (1992)
    Emphasize that a mere overlap in proof between two prosecutions does not establish a double jeopardy violation. Id at 386. When defendant is charged with the conspiracies containing overlaping proof, courts look at the elements of the conspiracies charged, the overt acts charged, geographic location, timing and participants to determine if the conspiracies are the same offense.
    
    
69. US v. Ferguson, 758 F.2d 843, 850 (2nd Cir. 1985)
    Just as defendant may waive trial by jury, defendant may waive similar right of indictment by grand jury.
    
    
70. US v. Fitzgerald, 882 F.2d 397, 399 (9th Cir. 1989)
    Indictment charging assault and specifying date, location, and victim of alleged assault sufficient under 7 (c) (1) even though failed to define "serious bodily injury", because not impermissibly vague.
    
    
71. US v. Flores, (1995, CA5 Tex) 63 F.3d 1342
    Indictment stating that defendant conducted financial transaction with certain amount of money by attempting to move the money sufficiently alleged violation of money-laundering statute, since it fairly informs the defendant of charge against him and was sufficient to bar future prosecution for same offense.
    
    
72. US v. Fogel, 901 F.2d 23 (4th Cir. 1990)
    US v. Field, 875 F.2d 130 (7th Cir. 1989)
    US v. Long, 900 F.2d 1270 (8th Cir, 1990)
    Purpose of presentation clause of the Fifth Amendment is twofold; It entities defendant to be in jeopardy only for offenses charged by a group of his fellow citizens acting independent of either prosecutor or the judge; and it entitles defendant to be apprised of charges against him so that he knows what he must.
    
    
73. US v. Forbes, 16 F.3d 1294, 1297 (1st Cir. 1994)
    Objection that indictment failed to state essential elements of offense can be raised for the first time on appeal under Rule 12 (b) (2). Therefore we hold that Harrod did not waive his objection by failing to object before trial.
    
    
74. US v. Garza - Juarez, 992 F.2d 896 (9th Cir. 1993)
    Trial court may dismiss indictment in exercise of its general supervisory powers.
    
    
75. US v. Gatto, (D.N.J. 1990) 746 F.Supp. 432 reversed 924 F.2d 491 rehearing denied
    To extent the government is able to do so precise date and place of each event alleged in indictment should be provided to defendant.
    
    
76. US v. Gimbel, (ED. Wis. 1985) 632 F.Supp. 748 reversed, 830 F.2d 621
    District Court in considering sufficiency of charges before trial, must regard fax alleged as true and cannot weigh against them contrary avertions by defendant. In weighing sufficiency of charges before trial, District Court must except in limited circumstances, consider only facts, acts and allegations contained within indictment itself.
    
    
77. US v. Gordon, 844 F.2d 1397, 1401 - 02 (9th Cir. 1988)
    Failure to dismiss or cure duplictious indictment with special interrogatories and additional instruction requested by defendant inappropriate because risked conviction by nonunanimous jury verdict.
    
    
78. US v. Haddock, 956 F.2d 1534 (10th Cir. 1992)
    "Duplicity" is the joining of two or more separate offenses in same count; vice of duplicity is that jury may convict the defendant without unanimously agreeing on the defendant's guilt on the same offense.
    
    
79. US v. Harper, 901 F.2d 471 (5th Cir. 1990)
    A guilty pleas does not bar a prisoner from challenging his indictment on jurisdictional grounds.
    
    
80. US v. Harris, 959 F.2d 246 (D.C. Cir. 1992)
    US v. Hord, 6 F.3d 276 (5th Cir. 1993)
    Indictment is multiplicious, and thereby defective, if single offense is alleged in a number of counts, unfairly increasing defendant's exposure to criminal sanctions.
    
    
81. US v. Henry, 29 F3d 112 (3rd Cir. 1994)
    Bank and wire fraud theories not advanced in indictment could not save indictment on appeal when theories that were advanced in indictment were found to be invalid.
    
    
82. US v. Homick, 964 F2d 899 (9th Cir. 1992)
    US v. Molinaro, 11 F3d 853 (9th Cir. 1993)
    

    1. The Fifth Amendment requires that defendant be tried only on charges handed down by grand jury and, thus, after indictment has been returned, its charges may not be broadened through amendment except by grand jury.
    2. Variance rises to the level of reversible error where evidence presented at trial, together with jury instructions, raises possibility that defendant was convicted on offense other than that charged in indictment.
83. US v. Hope, 861 F.2d 1574 (11th Cir. 1988)
    Indictment must be dismissed on ground of duplicity when two or more separate crimes are joined in a single count of indictment.
    
    
84. US v. Horodner, 993 F.2d 191, 193 (9th Cir. 1993)
    Convictions on two counts of possession of firearm by convicted felon based on possession of same firearm on different dates separated by period when firearm being repaired, barred because it was one uninterrupted course of conduct.
    
    
85. US v. Keith, 605 F.2d 462,464 (9th Cir. 1979)
    A claim of defect in indictment can be raised at anytime, but challenges should be made at the earliest possible moment... Indictments which are tardily challenged are liberally construed in favor of validity.
    
    
86. US v. Lang, (D.MD. 1991) 766 F. Supp 389
    It is generally sufficient to allege offense in words of statute and state time and place of alleged offense, so long as words of statute fully, directly, set forth all elements necessary to constitute offense.
    
    
87. US v. Littlefield, 105 F.3d 527,528 (9th Cir. 1977) (Per Curiam)
    Defendant waves right to indictment because he agreed to proceed by information and reaffirmed choice at plea hearing.
    
    
88. US v. Lopez, 2 F.3d 1342 (5th Cir. 1993)
    US v. James, 980 F.2d 1314 (9th Cir. 1992)
    

    1. Each count of indictment must stand on its own and cannot base its validity on allegations of any other count not specifically incorporated.
    2. Generally, failure of indictment to detail each element of charged offense is fatal defect.

88. US v. Lopez - Alvares, 970 F.2d 583 (9th Cir. 1992)
    Indictment must state elements of offense charged in sufficient detail to allow defendant to prepare his or her defense and to avoid double jeopardy.
    
    
89. US v. MacDonald, 456 US 1, 8, 71 L.Ed.2d 696, 102 S.Ct. 1497 (1982)
    US v. Carlock, 806 F.2d 535 (5th Cir. 1986)
    Protection from delay in indictment must be found in the due process clause of the Fifth Amendment.
    
    
90. US v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986) (dictum)
    Multiplictious indictment may prejudice jury against defendant by creating impression of more criminal activity than in fact occurred.
    

91. US v. Musacchino, 968 F.2d 782 (9th Cir. 1991)
    Court of appeals reviews sufficiency of indictment de novo.
    
    
92. US v. Musacchio, 940 F.2d 486 (9th Cir. 1991)
    In indictment, Government must allege essential facts necessary to apprise defendant of crime charged, but is not required to allege its theory of case or list supporting evidence to prove crime alleged.
    
    
93. US v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986)
    An essential purpose of an indictment is to give a defendant notice of a charge so that he may defend or plead his case adequately. Generally the failure of an indictment to detail each element of the charged offense constitutes a fatal defect.
    
    
94. US v. O'Bryant, 998 F.2d 21 (1st Cir. 1993)
    Bringing indictment tolls statute of limitations on charges set forth in that indictment.
    
    
95. US v. Podell, 869 F.2d 328, 332 (7th Cir. 1989)
    Separate convictions for unlawfully removing and tampering with motor vehicles identification number and unlawfully altering vehicles identification number barred when series of acts directed at one automobile.
    
    
96. US v. Randall, 171 F.3d 195,203 (4th Cir. 1999)
    Constructive amendment is per se "reversible error" and must be corrected on appeal even when defendant did not preserve issue by objection.
    
    
97. US v. Rosario - Diaz, 202 F.3d 54 (1st Cir. 2000)
    If the court permits the jury to convicted defendant on evidence of the crime not included in the indictment, a constitutional right to a grand jury is violated.
    
    
98. US v. Rosnow, 9 F3d 728 (8th Cir. 1993)
    Defendant at any time may raise claim that indictment fails to state offense.
    
    
99. US v. Santistevan, (1994, CA10 Utah) 39 F.3d 250
    Failure of prosecution to prove essential elements of distribution of cocaine beyond a reasonable doubt violated most fundamental sense of due process and allowed court to raise issue of sufficiency of evidence sua sponte.
    
    
100. US v. Santos - Rivera, 183 F.3d 367, 369 (5th Cir. 1999)
     One of the elements required by indictment is that it provide defendant with double jeopardy defense against future prosecutions.
     
     
101. US v. Sharpe, 995 F.2d 49 (5th Cir. 1993)
     Challenged, government must explain and support legitimacy of its reasons for sealing indictment.
     
     
102. US v. Spinner, 180 F.3d 514,516 (3rd Cir. 1999)
     Failure of indictment to sufficiently state offense is fundamental defect that can be raised at any time. Must also address double jeopardy. The indictment need only allege the essential facts [charges] you need not explain the government theory of the case.
     
     
103. US v. Stevens, 462 F.3d 1169
     Robert Stevens appeals a 30-year sentence imposed by the district court after Stevens plead guilty to one count of Receipt of Child Pornography and one count of Possession of Child Pornography, both in violation of 18 U.S.C. § 2252A(a). For the reasons set forth below, we vacate the sentence and remand for resentencing. At the time Stevens committed the crimes, application note 1 to U.S.S.G. § 2G2.2 defined "minor" as "an individual who has not attained the age of 18 years." In 2005, at the time the district court imposed Stevens's sentence, the Sentencing Commission had amended the application note, so that it defined "minor" as "(A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the [**5]  age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years." Stevens argues that this modification is a substantive change rather than a clarification, and that there-fore the district court erred by retroactively applying the amended definition. We agree.
     
     
104. US v. Talbot, C.A.9 (Cal) 1995, 51 F.3d 183
     Rule providing that court may permit information to be amended at any time before verdict only if no additional or different offense is charged did not apply to situation in which government replaced citation with an information, which does serve as superseding instrument. F.R.Cr.P. Rule 17 (e) and 18 USC.A.
     
     
105. US v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001)
     Conviction vacated because court failed to inform defendant of nature of offense; no determination of whether error was appropriate for harmless error review.
     
     
106. US v. Werme, 939 F.2d 108 (3rd Cir. 1991)
     US v. Douglas, 974 F.2d 1046 (9th Cir. 1992)
     Defendant cannot be convicted for offense that was not included in the indictment.
     
     
107. US v. Van Dyke, 14 F3d 415 (8th Cir. 1994)
     There is ordinarily no error in giving jury copy of indictment.
     
     
108. US v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999) (dictum)
     To meet constitutional guarantees an indictment must enable defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense.
     
     
109. US v. Woodruff, (1995, CA9 Cal) 50 F.3d 673, 95 Daily Journal DAR 4916
     Indictment charging violation of Hobbs Act was sufficient, although it contains no factual allegations as to how interstate commerce was interfered with and did not state any theory of interstate impact, since it set forth all elements of offense charged and insured defendant's right not to be placed in double jeopardy.
     
     
110. US v. Zavala, 839 F.2d 523,526 (9th Cir. 1988) (en Banc)
     Indictment charging various drug violations sufficient when tracking statutory language and listed dates of violations. Cert. denied, 488 US 831 (1988)
     
     
111. Wilkinson v. Haynes, W.D. Mo. 1971, 327F. Supp. 967
     Sufficiency of state information was not reveiwable in federal habeas corpus proceeding unless information was so defective as to deprive state court of jurisdiction.
     
     
112. Wright v. Lockhart, 854 F.2d 309,1988 US App. LEXIS 11221
     Amendments to an information are permissible so long as the amendment does not alter degree of the charge crime or unfairly surprise defendant. See also:
     Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985)

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Ineffective Asisstance Of Counsel

1. Blackburn v. Foltz, 828 F.2d 1177
   Defendant brought habeas corpus petition subsequent to state conviction for armed robbery, alleging that he was denied the effective assistance of counsel. The United States District Court for the Eastern District of Michigan, Barbara K. Hackett, J., denied petition and defendant appealed. The Court of Appeals, John W. Peck, Senior Circuit Judge, held that defendant was denied the effective assistance of counsel based on combination of counsel's erroneous legal advice concerning possible use of prior convictions if defendant testified, failure to obtain transcript of earlier trial to impeach key eyewitness and failure to investigate lead concerning potential alibi defense. Reversed and remanded with instructions.
   
   
2. Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997)
   Attorney failed to get expert witness.
   
   
3. Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998)
   Attorney was ineffective by failing to investigate defendants alibi defense.
   
   
4. Endicott v. Henry, No. 98-17336, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2000 US App. LEXIS 1635, December 7, 1999, Argued and Submitted, San Francisco, California , February 3, 2000, Filed , RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. , Reported in Table Case Format at: 2000 US App. LEXIS 13259. ... of habeas corpus REVERSED, case REMANDED
   Evidence of an alibi was significant. Counsel's failure to investigate the evidence amounted to a deficient performance, depriving petitioner of the right to effective assistance of counsel.
   
   
5. Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993)
   Attorney's failure to investigate defense is "never" a tactical decision.
   
   
6. Gray v.Lynn, 6 F.3d 265
   After affirmance of conviction for attempted first-degree murder, 391 So.2d 1184, petition was filed for writ of habeas corpus. The United States District Court for the Western District of Louisiana, Edwin F. Hunter, Jr., J., dismissed, and petitioner appealed. The Court of Appeals, Garwood, Circuit Judge, 724 F.2d 1199, affirmed. Petitioner filed instant habeas action and district court, upon magistrate's recommendation, dismissed. Petitioner appealed. The Court of Appeals, 917 F.2d 562, affirmed in part, reversed in part, and remanded. On remand, the District Court, Donald E. Walter, J., adopted recommendation of magistrate judge and dismissed petition. Petitioner appealed. On grant of certificate of probable cause, the Court of Appeals, Barksdale, Circuit Judge, held that: (1) trial counsel's failure to object to erroneous jury instruction fell beneath objective standard of reasonable professional assistance, and (2) trial counsel's failure to object to erroneous jury instruction resulted in prejudice to defendant sufficient to undermine confidence in outcome of his trial. Reversed and remanded.
   
   
7. Greene v. Henry, No. 01-15938, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 302 F.3d 1067; 2002 US App. LEXIS 18645; 2002 Cal. Daily Op. Service 9353; 2002 Daily Journal DAR 10492, March 11, 2002, Argued and Submitted, San Francisco, California , September 11, 2002, Filed. REVERSED. Case remanded
   Where defendant, convicted of rape, sought a writ of habeas corpus for ineffective assistance of counsel for failure to discredit the victim, the court of appeals denied the writ; victim's contradictory statements to police and court impeached her.
   
   
8. Harris v. Housewright, 697 F.2d 202
   Petitioner appealed from the United States District Court for the Eastern District of Arkansas, Garnett Thomas Eisele, Chief Judge, which denied his petition for writ of habeas corpus. The Court of Appeals, Heaney, Circuit Judge, held that petitioner was denied effective assistance of counsel, in that he proved that his attorneys failed to perform with degree of skill with which reasonably competent counsel would perform under similar circumstances and he was prejudiced by his counsels' ineffectiveness. Reversed and remanded.
   
   
9. Holsclaw v. Smith, 822 F.2d 1041
   Petitioner, who had been convicted of theft of automobile, sought writ of habeas corpus. The United States District Court for the Northern District of Alabama, No. CV86-A-5225-NE, Clarence W. Allgood, J., denied petition, and petitioner appealed. The Court of Appeals, Tuttle, Senior Circuit Judge, held that failure of trial counsel to raise question of sufficiency of evidence of theft at trial was not strategic decision, but, rather, was outside wide range of professional and competent assistance, resulting in reasonable probability that, but for error, result would have been different, and thus was ineffective assistance. Reversed and remanded with directions.
   
   
10. Holosombach v. White, 133 F.3d 1382
    After his conviction for first-degree sodomy was upheld on direct appeal and he was denied state postconviction relief, state prisoner petitioned pro se for federal writ of habeas corpus. The United States District Court for the Northern District of Alabama, No. CV-94-PT-3137-S,Robert B. Propst, J., dismissed petition. Petitioner appealed. The Court of Appeals, Barkett, Circuit Judge, held that: (1) trial counsel's decision not to conduct any investigation into conceded lack of medical evidence of sexual abuse was not reasonable, and (2) counsel's failure to conduct adequate pretrial investigation into lack of medical evidence prejudiced defendant.
    
    
11. In re Hegstrom, 153 Ariz. 286
    The attorney was charged with three counts of unethical conduct after he failed to provide a client with a copy of the reply to the counter-claim, failed to further litigate a matter when he promised to do so, failed to communicate with clients, failed to inform a client of the amount of attorney's fees, and failed to appear at a criminal defendant's rule to show cause hearing. The commission recommended that the attorney be disbarred. On review, the court disbarred the attorney because once the attorney took on the representation of a client, the ethical rules of conduct became a part of the lawyer's contract with his client. In addition, the court reasoned that a breach of the lawyer's contract with his client could be a violation of the lawyer's ethical responsibilities. Finally, the court reasoned that the attorney neglected legal matters entrusted to him pursuant to Ariz. Code Prof. Resp. DR 6-101(A) and abandoned his clients without notice and to their prejudiceThe court disbarred the attorney.
    
    
12. Jefferies v. Blodgett, 988 F.2d 923, 940 (9th Cir. 1993)
    US v. Blaylock, 20 F.3d 1458 (9th Cir. 1994)
    The ABA standards are regularly used by courts as guidelines in determining whether an attorney's performance falls below reasonable professional standards.
    
    
13. Johnson v. Baldwin, No. 96-35049, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 114 F.3d 835; 1997 US App. LEXIS 11968; 97 Cal. Daily Op. Service 3871; 97 Daily Journal DAR 6573, November 5, 1996, Argued, Submitted, Portland, Oregon , May 23, 1997, Filed. REVERSED and REMANDED
    A petition for writ of habeas corpus was dismissed improperly as there was a reasonable probability that, but for defense counsel's errors at petitioner's rape trial, the proceeding's result would have been different.
    
    
14. Mak v. Blogett, 970 F.2d 614 (9th Cir. 1992)
    US v. Tucker, 716 F.2d 576, 595 (9th Cir. 1983)
    A court may find unfairness and thus prejudice-from the totality of counsel's errors and omissions.
    
    
15. State v. Carriger, 132 Ariz. 301, 303, 645 P.2d 816, 818 (1982)
    When counsel's acts and omissions reduce his role to one approaching that of a neutral observer, a defendant is denied the effective assistance of counsel.
    
    
16. State v. Boozer, 80 Ariz. 8, 291P.2d 786 (1955)
    It is the universal rule that if improper statements are made by counsel during the trial it is the duty of opposing counsel to register an objection thereto so that the court may make a correction by proper instruction and if the offense be sufficiently hurtful, declare a mistrial.
    
    
17. State v. Dambrosio, 156 Ariz. 71, 750 P.2d 14
    The petitioner's complaint before the State Bar was specific and in depth, describing numerous instances of ineffectiveness which may be related to counsel's alleged state of intoxication during trial. Additionally, petitioner submitted an affidavit of his trial counsel's former secretary which attested to, among other things, counsel's “severe drinking problem” during petitioner's extensive trial. Taking these contentions as true in the context of whether a “colorable claim” has been presented, I firmly conclude that a colorable claim has been established entitling petitioner to an evidentiary hearing on his heretofore undetermined claims.
    
    
18. State v. Kerr, 142 Ariz. 426, 640 P.2d 145 (Ct. App. 1994)
    Quoting State v. Jessen, 130 Ariz. 1, 633 P.2d 410 (1981) it is the responsibility of defense counsel to ensure that any document necessary to defendant's argument is in the record on appeal.
    
    
19. State v. Krum, 182 Ariz. 108 (February 14th, 1995)
    Defendant first sought post-conviction relief when the victim, who was his step-granddaughter, recanted her story to her grandmother. Court appointed counsel advised him that he must supply an affidavit from the victim. When he failed to do so, the trial court dismissed his petition. He brought another petition alleging both the victim's recantation and his counsel's failure to effectively assist him with his first petition. On appeal, the court granted review and reversed the trial court's dismissal because defendant had a right to effective assistance of counsel in a post-conviction proceeding. While the federal constitution did not include a right to counsel in post-conviction proceedings, state law did, at Ariz. Rev. Stat. § 13-4235(B)(1989). The court found that the state law right to counsel was meaningless if it was not a right to effective assistance of counsel. Defendant stated a colorable claim because his allegations that his counsel failed to secure third-party affidavits that the victim had recanted her story indicated a performance below the standard defined by prevailing professional norms. Having stated a colorable claim, he was entitled to an evidentiary hearing. The court granted review of the trial court's summary denial of defendant's petition for post-conviction relief and granted relief. The court remanded the matter to the trial court for proceedings in accordance with the court's opinion.
    
    An accused is entitled to be assisted by an attorney who plays the role necessary to ensure that the trial is fair. For that reason, the right to counsel is the right to the effective assistance of counsel.
    
    
20. State v. Krum, 182 Ariz. 108 (May 12th, 1995)
    Defendant first sought post-conviction relief when the victim, who was his step-granddaughter, recanted her story to her grandmother. Court appointed counsel advised him that he must supply an affidavit from the victim. When he failed to do so, the trial court dismissed his petition. He brought another petition alleging both the victim's recantation and his counsel's failure to effectively assist him with his first petition. On appeal, the court granted review and reversed the trial court's dismissal because defendant had a right to effective assistance of counsel in a post-conviction proceeding. While the federal constitution did not include a right to counsel in post-conviction proceedings, state law did, at Ariz. Rev. Stat. § 13-4235(B)(1989). The court found that the state law right to counsel was meaningless if it was not a right to effective assistance of counsel. Defendant stated a colorable claim because his allegations that his counsel failed to secure third-party affidavits that the victim had recanted her story indicated a performance below the standard defined by prevailing professional norms. Having stated a colorable claim, he was entitled to an evidentiary hearing. The court granted review of the trial court's summary denial of defendant's petition for post-conviction relief and granted relief. The court remanded the matter to the trial court for proceedings in accordance with the court's opinion.
    
    
21. State v. Krum, 183 Ariz. 288 (September 21st, 1995 )
    The state sought review of a decision from the Arizona Court of Appeals holding that defendant was entitled to an evidentiary hearing in a post-conviction relief proceeding under Ariz. R. Crim. P. 32.1(e) whereby defendant contended, through third-party affidavits from his wife and natural grandson, that the victim had recanted her accusations of sexual abuse against defendant. Defendant pled no contest to the attempted sexual abuse of his thirteen-year-old step granddaughter. After the court of appeals affirmed his conviction on direct appeal, defendant filed a petition under Ariz. R. Crim. P. 32.1(e) for post-conviction relief, claiming that the victim had recanted her allegations. The court vacated the decision of the court of appeals holding that defendant was entitled to an evidentiary hearing and affirmed the trial court's judgment denying defendant's petition for post-conviction relief. The court held that defendant's affidavits from his wife and natural grandson did not establish a colorable claim that the victim had recanted her accusation of sexual abuse. The court found that the third-party affidavits showed no personal knowledge and were at most, hearsay evidence of recantation. Neither defendant's wife nor his grandson directly claimed to have heard the victim recant and their affidavits were found to be conclusory and completely lacking in detail, and they did not say when or where or to whom the victim supposedly recanted. The court concluded that such affidavits would seldom entitle a defendant to relief under Ariz. R. Crim. P. 32. The court vacated the decision of the court of appeals and affirmed the trial court's judgment denying defendant's petition for an evidentiary hearing in a post-conviction relief proceeding. The court concluded that defendant's affidavits from his wife and natural grandson did not establish a colorable claim that the victim recanted her accusation of sexual abuse against defendant.
    
    
22. State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1994)
    Quoting Strickland, "the right to counsel is the right to effective assistance of counsel."
    
    
23. State v. Miller, 120 Ariz. to 24, 585 P.2d 244 (1978)
    It is also the duty of defendant to see that the record contains the material to which he takes exception.
    
    
24. State v. Radjenovich, No. 1 CA-CR 6438, Court of Appeals of Arizona, Division One, Department A, 138 Ariz. 270; 674 P.2d 333; 1983 Ariz. App. LEXIS 608, December 1, 1983. REVERSED
    A defendant received ineffective assistance of counsel in a sexual assault case because counsel failed to interview a single prosecution witness, and was surprised when a defense expert, after learning the prosecution's theory, refused to testify.
    
    
25. Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998)
    Trial counsel's failure to investigate and to adequately conduct a pretrial preparation was not a strategic decision and required remand for an evidentiary hearing to determine whether a pretrial investigation would have produced a lesser degree of homicide.
    
    
26. US v. Burton, 575 F. Supp. 1320 (E.D. Tex 1983)
    Defense counsel must be familiar with the laws and facts of the case in order to provide effective assistance of counsel.
    

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In Forma Pauperis

1. A.R.C. 26.11 Duty of the court after pronouncing sentence after trial, the court shall, in pronouncing judgment of sentence:
   (b) If he or she is entitled thereto, advise the defendant that:
   If the defendant is unable to pay for a certified copy of the record on appeal and the reports transcript, they will be provided by the county.
   
   
2. Baragan v. Eyman, 93 Ariz. 227
   Even though an inmate's appeal in forma pauperis was mishandled by the trial court clerk, the required papers were filed with the superior court, the inmate would have the appeal to which he was entitled, and a habeas corpus discharge was denied.
   
   
3. Douglas v. California, 372 US 353, 361 (1963)
   Entitlements to free transcripts of all court proceedings under federal law; (indictments, grand jury minutes, discovery, pre-sentence reports, psychologist reports, witness and victim affidavits, police reports, any medical reports, evidentiary hearings, minutes, sentencing and closing arguments, etc.). Where as if these transcripts are not made available to the appellant, who is striving to litigate his case in court it would constitute a violation of State and Federal regulations that govern the rights of an individual under Article 2 § 4 of the Arizona Constitution and the 14th Amendment to the US Constitution denying “meaningful access to the courts."
   
   
4. Hardy v. US, 375 US 277, 84 S.Ct. 424, 11 L. Ed. 2d 331 (1964)
   On direct appeal, if you are determined to be indigent, you will be entitled to transcripts of the entire trial proceedings. See also: Griffin v. Illinois, 351 US 12, 34, 35 (1956)
   
   
5. In re Lopez, 97 Ariz. 328
   Once inmate perfected appeal by filing notice of appeal, trial court lost jurisdiction and was without discretion to dismiss appeal or set aside order granting leave to proceed in forma pauperis. Only proper course was to transfer record on appeal.

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