Sanchez v. Ryan et al

Filing 31

ORDER denying Sanchez's motions for discovery and an evidentiary hearing (Doc. 20 ); (Doc. 21 ); (Doc. 30 ). Signed by Magistrate Judge Leslie A Bowman on 7/5/2017. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christian Alberto Sanchez,
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Petitioner,
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vs.
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Charles L. Ryan; et al.,
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Respondents.
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No. CV 16-746-TUC-LAB
ORDER

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Pending before the court is the petitioner’s “Motion to Request Additional Documents
and Relevant Evidence from Trial Record,” filed on May 25, 2017. (Doc. 20)

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Also pending is the petitioner’s “Motion to Request Full California Records of Alleged

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Crimes Used in State’s Notice of Intent to Use Specific Instances of Conduct (Rule 404),” also

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filed on May 25, 2017. (Doc. 21)

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Also pending is the petitioner’s “Motion to Request Full California Records of Alleged

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Crimes Used in State’s Notice of Intent to Use Specific Instances of Conduct (Rule 404) and

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Motion for Hearing,” filed on June 23, 2017. (Doc. 30)

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The petitioner, Christian Alberto Sanchez, does not show “good cause” to conduct
discovery; his motions will be denied.

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Background

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Sanchez was convicted after a jury trial of “one count of molestation of a child, three

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counts of sexual abuse of a minor under fifteen, and one count of sexual conduct with a minor

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under fifteen.” (Doc. 14, pp, 3-4) The trial court sentenced Sanchez to an aggregate term of

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imprisonment of thirty-seven years. (Doc. 14, p. 4)

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At trial, the state introduced evidence that Sanchez sexually abused R.H., the daughter

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of Sanchez’s girlfriend, Shauna Fabian. (Doc. 1, p. 8); (Doc. 18-6, p. 3) The state also

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introduced “other-act” evidence pursuant to Ariz.R.Evid. 404(c) that Sanchez previously had

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sexually abused E.R., the daughter of Sanchez’s ex-wife, Valerie Villa. (Doc. 1, p. 8); (Doc.

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14, p. 5); (Doc. 16, p. 41)

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On November 28, 2016, Sanchez filed in this court the pending petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) trial counsel was

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ineffective because (a) Valerie Villa should have been called as a witness at the other-acts

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hearing, (b) Garardo Belford, Sanchez’s brother, should have been called to testify that E.R.

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made “ludicrous” allegations against him, (c) Danelle Barnett should have been called to

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testify about Villa’s unsavory character and her animosity toward Sanchez, and (d) Paul

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Simpson, forensic psychologist, should have been called to rebut testimony offered by the

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state’s expert, Wendy Dutton. (Doc. 1) He further claims (2) his rights to “due process of law”

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and “a fair trial” pursuant to “Amendments 5, 6, and 14 of the U.S. Constitution” were violated

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when the court admitted “other-act” evidence and testimony from the state’s expert, Wendy

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Dutton. (Doc. 1, p. 46)

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The respondents filed an answer in which they argue that Sanchez’s due process/fair trial

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claim is procedurally defaulted while his ineffective assistance claim should be denied on the

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merits. (Doc. 13) Sanchez filed a reply on May 25, 2017. (Doc. 22) On the same day, he filed

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two of the pending motions for discovery. (Doc. 20); (Doc. 21) He filed his third discovery

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motion on June 23, 2017. (Doc. 30)

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Discussion

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Unlike a party to a normal civil action, a habeas petitioner “is not entitled to discovery

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as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97

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(1997). Rule 6(a) of the Rules Governing § 2254 cases permits discovery “only in the
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discretion of the court and for good cause shown.” Rich v. Calderon, 187 F.3d 1064, 1068 (9th

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Cir.1999), cert. denied, 528 U.S. 1092. “A ‘good cause’ analysis requires the reviewing court

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to identify the ‘essential elements’ of the underlying substantive claim, and determine whether

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petitioner’s allegations, if proven, would satisfy those elements and show the violation of a

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constitutional right.” Williams v. Hall, 648 F. Supp. 2d 1222, 1225 (D. Or. 2009) (citing Bracy,

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520 U.S. at 904, 117 S.Ct. at 1797).

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Since Bracy was decided, the Supreme Court has held in Pinholster that a federal court

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analyzing a properly exhausted habeas claim is limited to the record that was before the state

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court when the claim was originally denied. See Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct.

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1388 (2011). The holding in Pinholster is an additional hurdle the petitioner must overcome

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if he is to establish “good cause” for habeas discovery.

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In his first motion, Doc. 20, Sanchez asks for a CD player and a special program that will

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allow him to listen to “several CD discs which allegedly contain interviews of witnesses in this

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case.” (Doc. 20, pp. 1-2) Apparently, Sanchez has in his possession CDs (compact discs) that

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appear on the trial Exhibit List and are labeled Exhibit J-1 and Exhibit 1A. (Doc. 26-1, pp. 3,

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4); (Doc. 29, p. 4) (citing respondents’ attachment 1) Exhibit J-1 is identified only as “C.D.

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in plastic case.” (Doc. 26-1, p. 3) The accompanying notation states “admitted for purposes

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of the record only NOT TO GO TO THE JURY.” Id. Exhibit 1A is identified as “C.D. in white

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paper sleeve.” (Doc. 26-1, p. 4)

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Apart from Sanchez’s unsupported allegations, there is no indication as to what those

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discs contain. Accordingly, there is no way of knowing if they have any relevance to the two

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claims that Sanchez raises in his petition for writ of habeas corpus. The court will not authorize

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discovery that is nothing more than a “fishing expedition.” Calderon v. U.S. Dist. Court for

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the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996). The fact that they might have

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been available to the trial court during Sanchez’s jury trial is not enough to establish relevancy

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here.

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Sanchez also asks for a “copy of recorded phone conversation in which Defendant

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allegedly stated he was going back to San Diego as stated in Moore’s Testimony.” (Doc. 20,
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p. 2) (citing RT 7-6-10, p. 34, l. 22-23) Sanchez asserts in conclusory fashion that “this

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evidence is relevant for this case.” Id.

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The court has examined the motion transcript at the place indicated by Sanchez. In the

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transcript, Deputy Moore described how he first made contact with Shauna Fabian, who had

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reported that Sanchez had “inappropriately touched” her daughter. (Doc. 18-1, p. 17)

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Apparently, when Moore contacted her, she was talking on the telephone with Sanchez. She

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told Moore that Sanchez was “in a cab headed back downtown [to the Greyhound station].”

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(Doc. 18-1, p. 18); (R.T. , p. 34, l. 22-23) Moore activated a digital recording device to record

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the phone call, which had been put on the speaker phone. Moore did not recall whether or not

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he heard Sanchez say he was in a cab on his way to the Greyhound station. Id., (Doc. 18-1, pp.

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18-19) Sanchez was subsequently found in downtown Tucson near the Hotel Congress. Id.,

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p. 20; R.T. 37

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Sanchez does not explain why this recording would be relevant to the claims in his

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petition. He may be arguing that if the recording does not support Shauna Fabian’s assertion

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that Sanchez said he was on his way to the Bus Station, then this is evidence that Fabian is a

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liar, and his counsel should have used this information to impeach her credibility. And this

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recording, therefore, could be evidence that counsel was ineffective. This court, however, is

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limited to evaluating the state court’s decision on the ineffectiveness issue in light of the

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evidence presented to it originally. This court cannot evaluate counsel’s performance de novo

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based on evidence that was not given to the state court when the issue was exhausted. See

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Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388 (2011). Accordingly, this recording is not

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relevant to the pending petition.

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In the other pending motions, Doc. 21 and Doc. 30, Sanchez moves for permission to

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discover the California records pertaining to the abuse allegations made by E.R., some of which

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were introduced at trial as other-act evidence pursuant to Ariz.R.Evid. 404(c). (Doc. 1, p. 8);

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(Doc. 14, p. 5); (Doc. 16, p. 41) Sanchez alleges that the California authorities investigated

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those allegations and were about “to dismiss those false allegations” but the Arizona authorities

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requested that they refrain from dismissing those allegations until after the trial. (Doc. 30, p.
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7) Apparently, Sanchez believes he was denied “evidence that [was] in the hands of the

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government” and this denial constitutes a Brady violation. (Doc. 30, pp. 7, 10); see Brady v.

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Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

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Sanchez, however, does not raise a Brady claim in his pending petition for writ of habeas

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corpus. Accordingly, the evidence he seeks is not relevant. Without a showing of relevance,

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Sanchez cannot show “good cause.” He therefore is not entitled to discovery or an evidentiary

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hearing. See also U. S. ex rel. Nunes v. Nelson, 467 F.2d 1380, 1380 (9th Cir. 1972)

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(“Appellant is not entitled to a discovery order to aid in the preparation of some future habeas

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corpus petition.”).

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IT IS ORDERED that Sanchez’s motions for discovery and an evidentiary hearing are

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DENIED. (Doc. 20); (Doc. 21); (Doc. 30) He has not shown “good cause” as required by Rule

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6(a) of the Rules Governing Habeas Corpus Cases Under § 2254.

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DATED this 5th day of July, 2017.

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