Stanley v. Ryan

Filing 145

ORDER granting Respondents' 139 Motion for Reconsideration; the Clerk shall strike from the district court record all of the exhibits filed under Document 136, Exhibit A thru J, and Exhibit K, filed under Document 140; the Clerk shall strike from the district court record all of the exhibits filed under Document 118, Exhibits A-G, Exhibit I filed under Document 123, and Exhibit H, filed under Document 133. Signed by Judge G Murray Snow on 10/17/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Milo McCormick Stanley,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
Respondents.

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) No. CV-98-0430-PHX-GMS
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) DEATH PENALTY CASE
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ORDER
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Pending before the Court is Respondents’ motion for reconsideration and to strike.

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(Doc. 139.) Respondents request that the Court reconsider its order allowing Petitioner to

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file certain depositions, deposition exhibits, an interview transcript, and a video deposition

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after judgment was entered in this case. (Id.) Respondents also move to strike from the

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record the written transcript and video deposition of Dr. Paul Bindelglas, which was filed

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with the Court prior to judgment. (Id.) Pursuant to the Court’s order, Petitioner has filed a

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response. (Docs. 141, 143-44.)

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The Ninth Circuit Court of Appeals remanded this case for an evidentiary hearing on

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Petitioner’s claim of ineffective assistance of counsel arising from sentencing counsel’s

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failure to provide mental health experts with notes from a post-arrest interview of Petitioner

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by jail psychiatrist, Dr. Karleen Hammitt. (Doc. 89.) The Court scheduled an evidentiary

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hearing for September 7-8, 2011, and the parties undertook discovery and other pre-hearing

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preparation. In anticipation of the hearing, Petitioner filed the transcript of the deposition of

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his mental health expert, Dr. Paul Bindelglas, who resides in Israel and would have been

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unable to attend the scheduled hearing. (Doc. 118.) The Court also permitted Petitioner to

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file the video recording of the Bindelglas deposition. (Doc. 119, 131.)

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Prior to the commencement of the hearing, the United States Supreme Court decided

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Cullen v. Pinholster, 131 S. Ct. 1388 (2011). In Pinholster, the Court held that in

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determining the reasonableness of a state court’s ruling under § 2254(d)(1), federal courts

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are “limited to the record that was before the state court that adjudicated the claim on the

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merits.” Id. at 1398. Based upon the holding of Pinholster, the Court granted Respondents’

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motion to vacate the evidentiary hearing and entered judgment. (Docs. 116, 134, 135.)

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Petitioner then moved, and the Court granted before Respondents had an opportunity to

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respond, the filing of additional discovery materials Petitioner had obtained in anticipation

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of the evidentiary hearing. (Docs. 136-38, 140.) Respondents then filed the instant motion.

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(Doc. 139.)

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With regard to Respondents’ motion for reconsideration, Fed. R. Civ. P. 5(d)(1)

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controls the issue presented and requires that the Court reconsider its ruling granting

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Petitioner permission to file discovery materials in this case. See Rule 12, 28 U.S.C. § foll.

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2254 (governing applicability of the Federal Rules of Civil Procedure to habeas

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proceedings). Rule 5(d)(1) specifically states that discovery requests and responses “not be

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filed until they are used in the proceeding or the court orders filing.” Id. Although this Court

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and the parties anticipated that discovery materials would be admitted at the evidentiary

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hearing, following the Court’s vacation of the hearing, Rule 5(d)(1) governs the relevant

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district court record. The discovery documents filed after the Court entered judgment were

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clearly not used in the proceeding, were filed in error, and will be stricken from the record.

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With regard to Respondents’ motion to strike the Bindelglas materials, Petitioner

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argues that Respondents’ motion is untimely. While technically true, see LRCiv 7.2(g), at

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the time the Court permitted Petitioner to file the Bindelglas materials the evidentiary hearing

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had not yet been vacated and there would have been no reasoned basis to object to the filing

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of the materials in the place of the unavailable Dr. Bindelglas testifying at the hearing.
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Moreover, the Bindelglas materials were not considered by the court in its decision to vacate

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the evidentiary hearing and enter judgment against Petitioner. Rather, the Court determined

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that an evidentiary hearing was unnecessary because under Pinholster the Court’s review of

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Petitioner’s ineffectiveness claim was limited to the state court record. And after considering

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that record, the Court concluded that the state court’s resolution of the claim was not

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objectively unreasonable under 28 U.S.C. § 2254(d). If on appeal the Ninth Circuit

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concludes otherwise, Petitioner will again have an opportunity to present his new evidence

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at an evidentiary hearing. However, because the Bindelglas materials were not used in this

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proceeding and are discovery documents, the Court will order that they be stricken from the

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record.

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Accordingly,

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IT IS HEREBY ORDERED granting Respondents’ motion for reconsideration.

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(Doc. 139.) The Clerk of Court shall strike from the district court record all of the exhibits

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filed under Document 136, Exhibit A thru J, and Exhibit K, filed under Document 140.

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IT IS FURTHER ORDERED that the Clerk of Court strike from the district court

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record all of the exhibits filed under Document 118, Exhibits A-G, Exhibit I filed under

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Document 123, and Exhibit H, filed under Document 133.

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DATED this 17th day of October, 2011.

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