Djerf v. Ryan, et al

Filing 123

ORDER denying Petitioner's 117 Motion for Leave to Issue Subpoena. (See document for further details). Signed by Senior Judge James A Teilborg on 2/12/15.(LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Kenneth Djerf, Petitioner, 10 11 Charles L. Ryan, et al., DEATH PENALTY CASE v. 12 No. CV-02-00358-PHX-JAT 13 ORDER Respondents. 14 15 Before the Court is Petitioner’s Motion for Leave to Issue Subpoena. (Doc. 117.) 16 17 Petitioner seeks access to “sealed psychological reports” concerning his now-deceased 18 post-conviction counsel. (Id.) Respondents oppose the motion. (Do. 120.) 19 On remand from the Ninth Circuit Court of Appeals, this Court must reconsider, in 20 21 light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), Petitioner’s claims of ineffective 22 assistance of trial and appellate counsel. Petitioner asserts that access to the confidential 23 psychological reports is necessary to “support his assertion that [post-conviction counsel] 24 25 suffered a psychotic break while representing him and that, as a result, she was unable to 26 provide minimally competent representation to him in his capital state post-conviction 27 proceedings.” (Doc. 117 at 4.) 28 1 2 Habeas petitioners are not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, a petitioner must demonstrate 3 4 5 6 “good cause” for the discovery under Rule 6, foll. 28 U.S.C. § 2254. Good cause exists “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to 7 8 9 10 11 relief.” Id. at 908–09. Petitioner cannot make such a showing with respect to postconviction counsel’s sealed psychological records. In Martinez, the Supreme Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural 12 13 default of a claim of ineffective assistance at trial.” 132 S. Ct. at 1315. Under Martinez, a 14 federal habeas court may consider a prisoner’s procedurally defaulted ineffective 15 assistance of trial counsel claim if he establishes (1) that his state post-conviction counsel 16 17 18 19 was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984), in failing to raise the ineffective assistance of trial counsel claim in state court, and (2) that the unraised claim is substantial. Id. at 1318. Martinez does not establish a stand-alone 20 21 22 23 24 right to effective assistance of post-conviction counsel. Applying Strickland to post-conviction counsel’s performance “calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Harrington v. Richter, 131 S. Ct. 770, 790 (2011); see 25 26 Strickland, 466 U.S. at 688 (proving deficient performance requires a showing “that 27 counsel’s representation fell below an objective standard of reasonableness”). The 28 information contained in post-conviction counsel’s sealed psychological records is not -2- 1 2 relevant to an objective assessment of her performance. The question is not counsel’s mental state, but whether the choices she made in representing Petitioner were 3 4 5 6 objectively reasonable. See, e.g., Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Petitioner has not established good cause for the requested discovery. 7 8 9 10 11 Accordingly, IT IS ORDERED denying Petitioner’s Motion for Leave to Issue Subpoena. (Doc. 117.) Dated this 12th day of February, 2015. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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