Milke Docket United States Court Of Appeals For The Ninth Circuit

United States Court of Appeals for the Ninth Circuit Court of Appeals Docket #: 07-99001 Docketed: 02/20/2007 Nature of Suit: 3535 Habeas Corpus: Death Penalty Milke, et al v. Schriro Appeal From: US District Court for Arizona, Phoenix

Case Type Information: 1) prisoner-death penalty 2) state 3) death penalty habeas corpus

Originating Court Information: District: 0970-2 : CV-98-00060-PHX-RCB Trial Judge: Robert C. Broomfield, U.S. District Judge Date Filed: 01/12/1998 Date Order/Judgment: 01/10/2007

Prior Cases: None

Current Cases:

Date NOA Filed:

02/07/2007

None

DEBRA JEAN MILKE Petitioner - Appellant Michael Kimerer, Esquire, Attorney Direct: 602-279-5900 [COR LD NTC CJA Appointment] KIMERER & DERRICK, PC 221 E. Indianola Ave. Phoenix, AZ 85012-2002

Lori Lea Voepel, Attorney Direct: 602-263-6312 [COR LD NTC CJA Appointment] JONES SKELTON & HOCHULI, PLC Suite 800 2901 N. Central Avenue Phoenix, AZ 85012 v.

DORA B. SCHRIRO

Respondent - Appellee Kent Ernest Cattani, Chief Counsel Direct: 602-542-8551 [COR LD NTC Dep State Aty Gen] ARIZONA ATTORNEY GENERAL'S OFFICE 1275 West Washington Street Phoenix, AZ 85007

J. D. Nielsen, Assistant Attorney General Direct: 602-542-8591 [COR LD NTC Dep State Aty Gen] ARIZONA ATTORNEY GENERAL'S OFFICE 1275 West Washington Street Phoenix, AZ 85007

DEBRA JEAN MILKE,

Petitioner - Appellant

v.

DORA B. SCHRIRO,

Respondent - Appellee

02/20/2007 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): n. setting schedule as follows: appellant's opening brief is due 5/29/07 ; appellees' brief is due 6/25/07; appellants' reply brief, is any, is due 14 days from the service of aple's answering brief. [07-99001] (PA) 05/23/2007 3 Filed Appellant Debra Jean Milke's Motion for Extension of Time to File Aplt's Opening Brief; Served on 5/22/07. (DP-Staff/Atty)[07-99001] [6183077] [07-99001] (PA) 05/29/2007 4 Filed order MOATT (ME) Appellant's motion to extend the time to file the opening brief is granted. The opening brief is due 8/30/07. Aple's answering brief is due 10/30/07. The optional reply brief, if any, is due within 21 days after service of the answering brief. (Phoned/Faxed/Served Csl) [07-99001] (PA) 08/22/2007 5 Filed Appellant's Motion for Extension of Time to 10/30/07 to File Aplt's Opening Brief; Served on 8/21/07. (DP-Staff/Atty) [07-99001] [6268441] [07-99001] (PA) 08/27/2007 6 Filed order MOATT (ME) Appellant's motion to extend the time to October 30, 2007 to file the opening brief is granted. Appellee's answering brief is due 12/28/07. The reply brief is due within 21 days after service of the answering brief. Counsel are reminded to format the briefs as required by the federal and local rules. See e.g. Ninth Circuit Rul 22-1(e)(f). [Faxed and Served Csl] [07-99001] (PA) 08/27/2007 7 Received notice from Mark Milke (Crime Victim), entitled "Notice of Appearance of Counsel for the Victim and Assertion of Victim's Federal Rights Pursuant to the Crime Victim Rights Act, 18 U.S.C Sec. 3771. (Casefiles) (PA)

10/31/2007 8 Filed Appellant's motion for leave to file an oversized brief containing 34,091 words (approx. 13,000 words over the limit); proposed brief attached; served on 10/30/07. (DP-Staff/Atty) [07-99001] served on [6333672] [07-99001] (PA) 11/14/2007 10 Received Appellee Dora B. Schriro response to Aplt's Motion to File Oversized Brief; Served on 11/13/07. (Response 1 day late)[DP-Staff/Aty] [07-99001] (PA) 11/16/2007 11 Filed Appellant Debra Jean Milke's Reply to Response to Motion, in Support of Motion for Leave to File Oversized Brief; Served on 11/15/07. (DP-Staff/Atty) [07-99001] (PA) 11/20/2007 13 Filed order (Appellate Commissioner) The Clerk shall file aple's response to aplt's motion for leave to fiel an oversize brief. A review of aplt's proposed 34,091-word opening brief reveals that it may reasonably be shortened. Accordingly, aplt's opposed motion to file an oversized brief is granted in part. Within 21 days after the filing date of this order, aplt shall file an opening brief not to exceed 32,00 words. Aple's answering brief, not to exceed 32,000 words, is due 2/11/08. The reply brief is due within 30 days after service of the answering brief. (Faxed/Served Csl) [07-99001] (PA) 11/20/2007 14 Filed Aple's Response to Aplt's Motion to File Oversized brief; Served on 11/13/07. (See Ap.Com Order of 11/20/07) [07-99001] (PA) 12/12/2007 16 Filed original and 15 copies Appellant Debra Jean Milke opening brief ( Informal: n) of 133 pages or 31,947 words and five copies of excerpts of record in 8 volumes; served on 12/11/07. [07-99001] (EU) 12/14/2007 17 Filed Center of Wrongful Convictions' motion to become amicus curiae and for leave to file a brief in support of Aplt Debra Jean Milke, served on 12/12/07. (DP-STAFF/ATY) (Per 12/18/07 order referred to the merits panel for disposition) (RECORDS UNIT)[07-99001] (EU) 12/14/2007 18 Received Original and 15 copies of Amicus Center of Wrongful Convictions' brief of 30 pages or 6,219 words; served on 12/13/07; deficient: (motion to become amicus and for leave to file brief in support to aplt's brief

pending - DP/STAFF-ATY)(Per 12/18/07 order referred to the merits panel for disposition)(RECORDS UNIT) [07-99001] (EU) 12/18/2007 19 Filed order MOATT (ME) Northwestern University's Bluhm Legal Clinic's Center On Wrongful Convictions's motion for leave to appear as amicus curiae and file its brief in support of appellant Milke is referred to the merits panel for disposition. [07-99001] (EU) 12/19/2007 21 Filed Arizona Civil Liberties Union/Fondation's motion for leave to become amicus curiae in support of Aplt Debra Milke, served on 12/18/07. (DPSTAFF/ATY) (Per 12/24/07 order referred to the merits panel for disposition) (RECORDS UNIT) (EU) 12/19/2007 22 Received Amicus Arizona Civil Liberties Union Foundation's original and 15 copies brief in support of Appellant Debra Milke of 39 pages or 8,486 words, served on 12/18/07. deficient: (motion for leave to become amicus pending filing of this brief)(DP-STAF/ATTY)(Per 12/24/07 order referred to the merits panel for disposition) (RECORDS UNIT) (EU) 12/24/2007 23 Filed order MOATT (ME) The Arizona Civil Liberties Union's motion for leave to appear as amicus curiae and file a brief in support of appellant Milke is referred to the merits panel for disposition. [07-99001] (EU) 01/30/2008 25 Filed Dora B. Schriro's unopposed motion for (30 days) extension of time to file aple's brief until 3/12/08, on 1/29/08. (DP-Clerk) (EU) 01/30/2008 26 Filed order (Deputy Clerk: EU) Aple's unopposed motion for a thirty day extension of time to file the aple's brief is GRANTED. The aple's brief and any supplemental excerpts of record is now due 3/12/08; the aplt's reply optional reply brief, if any, may be filed 30 days from service of the aple's brief. (phoned csl) [07-99001] (EU) 03/10/2008 27 Filed motion to extend time to file appellee brief until 03/25/2008 Served on 03/07/2008. (PA) 03/13/2008 28 1 pg, 23.34 KB Filed order MOATT: (pi) Granting Appellee Motion to extend time to file appellee brief. Appellee Dora B. Schriro answering brief due 03/26/2008

Appellant's optional reply brief is due 21days after service of the answering brief.. (PA) 03/17/2008 29 1 pg, 23.46 KB Filed AMENDED order MOATT: (PI) Granting Appellee Motion to extend time to file appellee brief.; Answering brief now due 03/26/2008 ;Appellant's optional reply brief is due 30 days after service of the answering brief.. (PA) 03/27/2008 30 Filed Appellant Debra Jean Milke's motion for extension of time to file aple's brief (until 3/27/08); Served on 03/26/08. (PA) 03/28/2008 31 Received original and 15 copies of Appellee 's answering brief of 79 pages or 17,817 words; and Supplemental Excerpts of record in 1 volume. Served on 03/27/2008. (PA) 03/31/2008 32 1 pg, 23.23 KB Filed order MOATT: (pi) Aple's unopposed March 27, 2008 motion to extend the time to file the answering brief is granted. The Clerk's office shall file the answering brief received on March 28, 2008. The reply brief is due within 30 days after service of the answering brief. (PA) 03/31/2008 33 Filed original and 15 copies of Appellee's Answering brief of 79 pages or 17,817 words and 5 copies of Supplemental Excerpts of Record in 1 volume; served on 3/27/08. (See Order of 3/31/08 granting motion for extension of time to file brief). (Records) (PA) 04/03/2008 34 Filed Appellant Debra Jean Milke emergency motion for appointment of counsel served on 04/02/2008. (PA) 04/03/2008 35 Filed Appellant Debra Jean Milke emergency motion to vacate previously established time schedule, pending ruling on Motion for Appointment of Counsel; served on 04/02/2008. (PA) 04/14/2008 36 1 pg, 27.48 KB Filed order (Appellate Commissioner) Aplt's 4/3/08 unopposed emergency motion for appointment of counsel, supported by Aplt's declaration of

indigency is granted. Atys Lori L. Voepel, Esq. and Michael D. Kmierer, Esq., are appoitned to represent Appellant on appeal, effective 4/3/08. See VII Guide to Judiciary POlicies & Procedures, 6.01. Aplt's unipposed motion to stay briefing pending this Court's ruling on the motion for appointment of counsel is granted. Appellant's reply brief is due within 30 days after the filing date of this order. (PA) 04/14/2008 49 Changed attorney participant class Attorneys Michael D. Kimerer and Lori L. Voepel in 07-99001 for Appellant Milke, Debra Jean. (ASW) 05/07/2008 37 Filed Appellant Debra Jean Milke's motion to extend time to file reply brief until 06/13/2008. Served on 05/06/2008. (PA) 05/09/2008 38 1 pg, 22.75 KB Filed order MOATT: (ME) Granting Appellant 's Motion to extend time to file reply brief until 6/13/08. (PA) 06/16/2008 39 Filed Appellant Debra Jean Milke's motion to strike three paragraphs of State's Answering Brief and Supplemental Excerpts of Records. Served on 06/13/2008. (DP-Staff/Atty) (PA) 06/16/2008 40 Filed Appellant Debra Jean Milke's motion to Request for Oral Argument. Served on 06/13/2008. (Dp-Staff/Atty) (PA) 06/16/2008 41 Filed original and 15 copies of Appellant Debra Jean Milke 's reply brief of 44 pages or 9,799 words. Served on 06/13/2008. (RECORDS) (PA) 06/17/2008 42 1 pg, 22.94 KB Filed order MOATT: (pi) Appellant's motion to strike three paragraphs of State's Answering Brief and Supplemental Excerpt of Record "S" and any response or reply thereto, shall be referred tot he merits panel. (PA) 06/23/2008 43 Filed Appellee's response opposing Appellant's Motion to Strike three paragraphs of State's Answering Brief and Supplemental Excerpts of Record; Served on 06/20/2008. (DP-Staff/Atty) (PA) 06/27/2008 44 Filed Appellant's Reply and support to aple's response to the motion to Strike 3 paragraphs of aple's brief and supplemental EORs; Served on 6/26/08. (DP-Staff/Atty) (PA)

07/22/2008 45 CALENDARED: 08/20/2008 10:00 AM Pasadena, CA Courtroom 1 (AW) 07/22/2008 46 5 pg, 113.07 KB Hearing Notice for AUGUST 20 2008 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: PASADENA Office. Attention: The Notice of Docket Activity may not list your case number. Please open attached documents to view details about your case. [07-99001, 07-99003] (AW) 07/24/2008 47 CJA travel authorization sent to Lori L. Voepel, Esq. for Debra Jean Milke. Authorization number 9CJA07-990010808. (KB) 07/24/2008 48 CJA travel authorization sent to Michael D. Kimerer, Esq. for Debra Jean Milke. Authorization number 9CJA07-990010808. (KB) 07/28/2008 50 1 pg, 29.26 KB Filed order (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) The Court grants a certificate of appealability as to the uncertified issue raised in the opening brief. See AOB at 117–32; see also 9th Cir. R. 22-1(e). Appellee shall file a supplemental answering brief addressing that issue by August 4, 2008. Such brief shall not exceed 7,000 words. Appellant’s supplemental reply brief, not to exceed 3,500 words, is due by August 14, 2008.. (PA) 07/29/2008 51 Filed Appellant Debra Jean Milke's Supplement to Motion to Strike 3 paragraphs of State's answering brief and Supplemental EOR. Served on 07/28/2008. (Panel) (PA) 07/30/2008 67 Filed Michael D. Kimerer, Esquire for Appellant Debra Jean Milke and Ms. Lori Lea Voepel for Appellant Debra Jean Milke motion to establish capital case compensation and advance authorization for expert services(in-house law clerks), . Served on 07/29/2008. (TG) 07/30/2008 72 Filed Attorney Ms. Lori Lea Voepel for Appellant Debra Jean Milke motion for request to set capital case compensation. Served on 07/29/2008. (TG)

08/04/2008 52 Filed original and 15 copies of Appellee Dora B. Schriro 's supplmental brief of 9 pages or 1857 words. Served on 08/01/2008. (PANEL and RECORDS UNIT) (PA) 08/05/2008 53 1 pg, 27.54 KB Filed order (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) The motions of the Center on Wrongful Convictions and the Arizona Civil Liberties Union/Foundation to file amicus briefs are granted. (PA) 08/05/2008 54 Filed original and 15 copies of Center of Wrongful Convictions amicus brief of 30 pages or 6,219 words. Served on 12/13/2007. (See 8/4/08 Granting Motion to for Leave to appear as amicus curiae and file brief) (PA) 08/05/2008 55 Filed original and 15 copies of Arizona Civil Liberties Union/Foundation amicus brief of 39 pages or 8,486 words. Served on 12/18/2007. (See 8/4/08 Order granting motion to become amicus curiae and file brief) [RECORDS] (PA) 08/08/2008 56 Filed appearance notice of Attorney(s) Kent E. Cattani for party(s) Appellee Dora B. Schriro, in case 07-99001.. Served on 08/04/2008. (LN) 08/15/2008 57 Filed original and 15 copies of Appellant Debra Jean Milke's supplmental reply brief of 15 pages or 3,348 words. Served on 08/14/2008. (PANEL) (PA) 08/20/2008 58 ARGUED AND SUBMITTED TO ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA. (LN) 08/26/2008 59 Filed Appellant Debra Jean Milke's motion Requesting Certification of Additional Issues on Appeal. Served on 08/25/2008. (PANEL) (PA) 08/27/2008 60 Filed Appellee Dora B. Schriro's additional citations. Served on 08/26/2008. (panel) (PA) 09/05/2008 61 2 pg, 33.82 KB Filed order (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) The parties are directed to file supplemental briefs addressing the

following question: What evidence is required to prove that a defendant’s waiver of rights under Miranda v. Arizona, 384 U.S. 436 (1966), was made “voluntarily, knowingly and intelligently,” see id. at 444–45, and is that burden met in this case? See also Smith v. Illinois, 469 U.S. 91, 100 (1984) (“[A]n accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request.”). Appellant’s brief shall be filed no later than 30 days from the filing of this order. Appellee’s brief shall be filed within 21 days thereafter. Appellant may file a reply brief within 14 days after the filing of appellee’s brief. Principal briefs may not exceed 5,000 words, and the optional reply brief may not exceed 2,500 words. Submission is vacated, and the parties are directed to initiate mediation with the Circuit Mediation Office by contacting Chief Circuit Mediator Claudia Lynn Bernard at (415) 355-7908. The Clerk is directed to send a copy of this order to all counsel of record, and to counsel for amici curae, who are themselves invited to participate in the mediation. (PA) 09/05/2008 62 Filed Appellee 's response in opposition to Aplt's 8/26/08 Motion Requesting Certifiat of Additional Issues on Appeal. Served on 09/04/2008. (PANEL) (PA) 09/16/2008 63 GTA bill reconciled for Michael D. Kimerer, Esquire for Debra Jean Milke. Paid/Canceled: Paid. Authorization Number: 9CJA07-990010808. (AC) 09/16/2008 64 GTA bill reconciled for Ms. Lori Lea Voepel for Debra Jean Milke. Paid/Canceled: Paid. Authorization Number: 9CJA07-990010808. (AC) 09/16/2008 65 6 pg, 35.38 KB Filed (ECF) Appellant Debra Jean Milke reply to response (Appellant Motion miscellaneous request, Response to Motion ). Date of service: 09/16/2008. [6647880] (LLV) 09/17/2008 66 Criminal Justice Act 30 voucher sent to Michael D. Kimerer, Esquire for Appellant Debra Jean Milke and Ms. Lori Lea Voepel for Appellant Debra Jean Milke - nunc pro tunc April 3, 2008. (TG) 09/25/2008 68 CJA 21 travel voucher processed for Ms. Lori Lea Voepel for Debra Jean Milke. CJA 21 Number: 082008. (MV)

09/25/2008 69 CJA 21 travel voucher processed for Michael D. Kimerer, Esquire for Debra Jean Milke. CJA 21 Number: 082008. (MV) 09/25/2008 70 5 pg, 32.78 KB Filed (ECF) Appellant Debra Jean Milke Unopposed Motion to extend time to comply with the order dated 09/05/2008. Date of service: 09/25/2008. [6656962] (LLV) 09/25/2008 71 1 pg, 24.01 KB Filed order (Appellate Commissioner) Granting Attorney Motion for request to change capital case compensation filed by Michael D. Kimerer, Esquire for Appellant Debra Jean Milke and Ms. Lori Lea Voepel for Appellant Debra Jean Milke; Granting Attorney Motion for advance travel authorization filed by Michael D. Kimerer, Esquire for Appellant Debra Jean Milke and Ms. Lori Lea Voepel for Appellant Debra Jean Milke (Operations) (CB) 09/29/2008 73 1 pg, 23.4 KB Filed order (Appellate Commissioner) Granting the request by appointed counsel Lori L. Voepel, Esq., that the court establish a compensation rate. Effective April 3, 2008, counsel Voepel shall be compensated at a rate of $170 per hour for all hours reasonably expended. (Operations) (MS) 09/30/2008 74 1 pg, 27.65 KB Filed order (ALEX KOZINSKI) ; Appellant’s motion for an extension of time is granted. Appellant’s supplemental brief shall be filed no later than October 10, 2008. Appellee’s brief shall be filed within 21 days thereafter. Appellant may file a reply brief within 14 days after the filing of appellee’s brief. (PA) 10/10/2008 75 28 pg, 121.27 KB Submitted (ECF) Supplemental brief for review. Submitted by Appellant Debra Jean Milke. Date of service: 10/10/2008. [6672691] (LLV) 10/14/2008 76

1 pg, 27.14 KB Filed Supplemental Brief [6672691-2] filed by Debra Jean Milke in 07-99001. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Tan cover, accompanied by certification that the brief is identical to the version submitted electronically. (PA) 10/15/2008 77 Received 10 paper copies of Supplemental brief [6672691-2] filed by Debra Jean Milke in 07-99001. One copy to Case Files, the remainder to Records. (PA) 10/24/2008 78 8 pg, 77.67 KB Filed order MEDIATION (bs): case selected for pre-briefing mediation program. Telephone conference to be held on 10/28/2008 at 11:00 am (Pacific StandardTime). (PA) 10/28/2008 79 Filed Appellee's motion to extend time to file supplemental answering brief until 11/10/2008 Served on 10/27/2008. (PA) 10/31/2008 80 1 pg, 27.41 KB Filed order (ALEX KOZINSKI) Appellee’s motion for an extension of time is granted. The supplemental answering brief shall be filed no later than November 10, 2008. Appellant may reply within 14 days of the answer. (PA) 11/10/2008 81 Filed original and 15 copies of Appellee Dora B. Schriro's supplmental brief of 21 pages. Five copies Excerpts of record in 1 volume. Served on 11/07/2008. (11/13/08 Wrong Cover Color, contacted Csl- Per Court, ok to file) (PA) 11/19/2008 82 5 pg, 30.78 KB Filed (ECF) Appellant Debra Jean Milke Unopposed Motion to extend time to file Supplemental brief until 12/01/2008. Date of service: 11/19/2008. [6712735] (LLV) 11/21/2008 83

1 pg, 27.12 KB Filed order (ALEX KOZINSKI) ; Appellant’s unopposed motion for an extension of time is granted. The supplemental reply shall be filed no later than December 1, 2008. (PA) 12/01/2008 84 63 pg, 1.92 MB Submitted (ECF) Supplemental brief for review. Submitted by Appellant Debra Jean Milke. Date of service: 12/01/2008. [6723448] (LLV) 12/02/2008 85 1 pg, 27.69 KB Filed Supplemental Brief [6723448-2] filed by Debra Jean Milke in 07-99001. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Tan cover, accompanied by certification that the brief is identical to the version submitted electronically. (PA) 12/05/2008 86 Received 10 paper copies of Supplemental Reply Brief and 5 copies of 1 volumeSupplemental Excerpt of Record (6723448-2] filed by Debra Jean Milke in 07-99001. One copy to Case Files, the remainder to Records. (PA) 04/15/2009 87 1 pg, 27.04 KB Filed order (ALEX KOZINSKI)In an order filed September 5, 2008, the panel referred this matter to mediation. As settlement possibilities have been exhausted, the matter is resubmitted. (PA) 04/15/2009 88 1 pg, 27.04 KB Case resubmitted on this date to AK, JF and CTB Order filed 04/15/2009 . (PA) 09/25/2009 89 2 pg, 381.15 KB Filed (ECF) Appellant Debra Jean Milke citation of supplemental authorities. Date of service: 09/25/2009. [7075162] (MK) 09/28/2009 90 1 pg, 31.33 KB Filed order (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) A complete review of the record discloses no evidence supporting a finding that petitioner voluntarily, knowingly and intelligently waived her rights

under Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). See 28 U.S.C. § 2254(d)– (e). Under these circumstances, an evidentiary hearing in federal court is required. See Frantz v. Hazey, 533 F.3d 724, 745 (9th Cir. 2008) (en banc). We therefore remand with instructions to conduct a limited hearing on the sole issue of whether petitioner validly waived her Miranda rights; respondent shall have the burden of proof. The district court must conduct the hearing and render its findings within 60 days of this order. [7076019] (PA)

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