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Stella M. Nickell Case:
Stella Nickell Reply

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STELLA MAUDINE NICKELL, Petitioner, vs.UNITED STATES OF AMERICA, Respondent.

NO.: CA01-70891

PETITIONER’S RESPONSE TO RESPONDENT’S MOTION
TO FILE UNREQUESTED REPLY

Carl P. Colbert
Member, 9th Circuit Bar
Member Western District of Washington Bar
Washington Bar Number 28818
Colbert & Colbert, LLP
56th Street Professional Plaza
3309-56th Street Northwest, Suite 101
Gig Harbor, Washington 98335
253.853.1720 (voice)
253.853.1705 (facsimile)

TABLE OF AUTHORITIES

Cases
Bennet v. United States, 119 F.3d 468, 469 (7th Cir. 1997) 2
Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997) 2

Statutes
28 U.S.C. §2255 2

COMES NOW Petitioner, through the undersigned attorney and submits the following response to Respondent’s Motion to File Reply:
A.   “OPPOSITION TO UNTIMELY REPLY”
Respondent has prepared and presented to this Court a Reply Brief and requested that it be considered before this Court has ordered such a reply. Petitioner opposes Respondent’s motion to file its “Reply.”
Petitioner does sympathize with counsel Maida’s situation regarding her mother or father and wishes her family well. Petitioner argues that Respondent’s proposed reply could have been prepared and left with another United States Attorney in the Western District who could have filed and served said reply upon the order of this Court, should such an order be forthcoming. Petitioner therefore submits that Respondent’s assertion that its premature response was filed “so as not to delay the Court’s timely action” appears to lack merit. Petitioner believes that this Court has procedures in place to timely review and decide motions such as Petitioner’s in a timely manner even without the extracurricular “help” of litigants.
While Petitioner does concede that due to counsel Maida’s valid need to be away from the district, preparing a reply ahead of time in case this Court ordered one was wise, Petitioner does not concede that such a Reply should have been forwarded unless this Court ordered that it be filed, in which case it could have been mailed to the Court promptly.
Petitioner requests that the Court use its regular procedures for determining whether a Reply should be ordered.
Should this Court choose to consider Respondent’s proposed reply, Petitioner submits this response. As an opening matter Petitioner refers the Court to her petition as filed June 4, 2001 in all respects and submits that she has made her prima facie case.
B.   PETITIONER’S RESPONSE TO “PROCEDURAL DEFAULT” ARGUMENT
Petitioner has not “procedurally defaulted” in her motion for authorization. She has properly presented her motion and submits that she has made her prima facie case for authorization to be heard in the Western District.
At page 2 of its proposed reply, Respondent cites 28 U.S.C. §2255 and quotes Section (4) thereof which, with states that the one year limitation period shall run from the latest of:
The date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Based on the above-referenced statute Respondent argues that because Petitioner has failed to show that “her evidence could not have been discovered before June 5, 2000, Petitioner is “out of luck.” Respondent’s proposed reply at page 3.
Respondent’s analysis appears to read the words “through the exercise of due diligence” out of the statute. 28 U.S.C. §2255 does not impose a statute of limitation of “one year from the date evidence is found” as appears to be suggested in Respondent’s proposed reply.
The relevant statute does indeed provide a statute of limitations, but this statute of limitations does indeed include a due diligence qualifier. Petitioner’s motion for authorization is replete with references to the fact that the evidence she presents could not have been discovered through mere due diligence. For example, at page 15 of Petitioner’s motion, she states:
Hers is a case where individual “pieces” of new evidence and “pieces” of new evidence shedding new light on prior evidence have been uncovered, just recently, through the efforts of a team of private investigators significantly more thorough than “mere” due diligence would have required. (emphasis in original).
Petitioner further submitted at page 16 of her motion for authorization that
Enough of the newly discovered evidence included herein could not have been discovered previously through the exercise of due diligence and that it has only now been discovered through “supra-diligent” efforts of trained investigative professionals.
In addition, in her motion for authorization, Petitioner drew attention to those pieces of information that she argued could not have been found through mere “due diligence” such as the incredibly relevant statement of Dr. Trimble discovered folded up among other unrelated papers in a box at the City Attorney’s office in Auburn, Washington. Please see Petitioner’s Motion for Authorization at page 34.
Another piece of incredibly relevant that could not have been discovered through the exercise of due diligence is the testimony of Anna Jo Rider.
According to Petitioner’s Motion for Authorization and the accompanying Declaration of Anna Jo Rider, Ms. Rider, who possessed (and possesses) incredibly exculpatory evidence regarding Petitioner, was deliberately kept from Petitioner and her investigators. Petitioner’s original trial investigator exercised due diligence in actually locating Ms. Rider where she was hidden in Nevada and attempted to speak with her about Petitioner’s case. Rider has declared that when this occurred, she responded as she was instructed by the Federal Bureau of Investigation, sending the person away, refusing to speak with him. Petitioner has submitted that obtaining Ms. Rider’s (a person who was told by the FBI that Petitioner was attempting to kill her and her family) truthful testimony which serves to exculpate Petitioner required more than “due diligence.” Please see Petitioner’s Motion for Authorization at pages 29-30.
Petitioner’s arguments regarding the statute of limitations and its due diligence qualifier were well supported by the on-oath declarations of two seasoned private investigators working her case. Both A.L. Farr and Paul Ciolino declared separately that “In my professional opinion as a private investigator, I do not believe that the evidence Farr and I uncovered, that is relevant to proving Ms. Nickell innocent, could have been found previously through the exercise of due diligence.” Petitioner’s Motion at Exhibit 3 page 1 and Exhibit 4 page 1.
Certainly, considering the above, Respondent’s argument that Petitioner has not “specifically and distinctly” identified her issues in her opening brief regarding the one year due diligence statute of limitations and that consequently she has waived these issues rings hollow. See Respondent’s proposed reply at page 6. Certainly, despite Respondent’s protestations, Petitioner has not “procedurally defaulted.”
In sum, Petitioner has made her prima facie showing, has not “procedurally defaulted” and argues that the issues raised in her motion should be properly presented to the Western District for determination.
C.   PETITIONER’S RESPONSE TO “COULD HAVE BEEN DISCOVERED FOUR YEARS AGO” ARGUMENT
Respondent argues that another private investigator “should” have discovered the evidence presented by Petitioner four years ago. Respondent appears to make the argument that if evidence is ever found, it must have been available through the exercise of due diligence, and if so it must have been discoverable earlier. This is not the case, and it was not the case with the evidence discovered by Petitioner. The fact that Petitioner was diligent in attempting to have other investigators work on her case and that those investigators failed to locate any of the evidence Petitioner submits actually cuts in Petitioner’s favor in her argument that the material included in her motion could not have been discovered through due diligence.
D.   PETIONER’S RESPONSE TO RESPONDENT’S “FACTUAL” PRESENTATION
Respondent, in its proposed reply, makes factual assertions and quarrels with aspects of the factual presentation presented to make Petitioner’s prima facie case. Petitioner strongly refutes the implications of the “factual” assertions made in Respondent’s proposed reply. Nevertheless, Petitioner submits that these matters should properly be presented in the Western District. The Western District would be able to examine the evidence Petitioner has presented in the face of Respondent’s opposition and cross-examination.
The fact that Respondent would likely make a presentation to the trial court in opposition to Petitioner’s presentation is not disputed by Petitioner. Petitioner merely requests authorization to have her factual presentation heard. Respondent will have the opportunity to examine witnesses such as Anna Jo Rider, Doctor Trimble and the Webbs. Petitioner respectfully requests, and will welcome, the opportunity to have the evidence she submitted to make her prima facie case subjected to the rigors of the adversarial process.

E.   CONCLUSION
Petitioner argues that she has properly and in a timely manner made her prima facie showing and that she should have the opportunity to have her evidence heard in the Western District. Petitioner respectfully renews her request that her motion be granted. DATED this 29th day of June, 2001.
    COLBERT & COLBERT, LLPBy
          Carl P. Colbert, WSBA# 28818Attorneys for Petitioner

CERTIFICATE OF SERVICE
I HEREBY CERTIFY under penalty of perjury under the laws of the Federal Government of the United States and the State of Washington that on June 29, 2001, I caused to be served in the manner noted below a true and correct copy of the foregoing PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO FILE UNREQUESTED REPLY upon counsel for Respondent:

Ms. Joanne Maida, Esq.U.S. Attorney’s Office601 Union Street, Suite 5100Seattle, Washington 98108

[ ] Via Facsimile
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EXECUTED in Gig Harbor, Washington, on this 29th day of June, 2001.

CARL P. COLBERT, WSBA#28818