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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Christian Alberto Sanchez, 9 Petitioner, 10 vs. 11 Charles L. Ryan; et al., 12 Respondents. 13 ) ) ) ) ) ) ) ) ) ) ) No. CV 16-746-TUC-LAB ORDER 14 15 16 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) 17 Also pending is the petitioner’s “Motion to Request Full California Records of Alleged 18 Crimes Used in State’s Notice of Intent to Use Specific Instances of Conduct (Rule 404),” also 19 filed on May 25, 2017. (Doc. 21) 20 Also pending is the petitioner’s “Motion to Request Full California Records of Alleged 21 Crimes Used in State’s Notice of Intent to Use Specific Instances of Conduct (Rule 404) and 22 Motion for Hearing,” filed on June 23, 2017. (Doc. 30) 23 24 The petitioner, Christian Alberto Sanchez, does not show “good cause” to conduct discovery; his motions will be denied. 25 26 Background 27 Sanchez was convicted after a jury trial of “one count of molestation of a child, three 28 counts of sexual abuse of a minor under fifteen, and one count of sexual conduct with a minor 1 under fifteen.” (Doc. 14, pp, 3-4) The trial court sentenced Sanchez to an aggregate term of 2 imprisonment of thirty-seven years. (Doc. 14, p. 4) 3 At trial, the state introduced evidence that Sanchez sexually abused R.H., the daughter 4 of Sanchez’s girlfriend, Shauna Fabian. (Doc. 1, p. 8); (Doc. 18-6, p. 3) The state also 5 introduced “other-act” evidence pursuant to Ariz.R.Evid. 404(c) that Sanchez previously had 6 sexually abused E.R., the daughter of Sanchez’s ex-wife, Valerie Villa. (Doc. 1, p. 8); (Doc. 7 14, p. 5); (Doc. 16, p. 41) 8 On November 28, 2016, Sanchez filed in this court the pending petition for writ of 9 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) trial counsel was 10 ineffective because (a) Valerie Villa should have been called as a witness at the other-acts 11 hearing, (b) Garardo Belford, Sanchez’s brother, should have been called to testify that E.R. 12 made “ludicrous” allegations against him, (c) Danelle Barnett should have been called to 13 testify about Villa’s unsavory character and her animosity toward Sanchez, and (d) Paul 14 Simpson, forensic psychologist, should have been called to rebut testimony offered by the 15 state’s expert, Wendy Dutton. (Doc. 1) He further claims (2) his rights to “due process of law” 16 and “a fair trial” pursuant to “Amendments 5, 6, and 14 of the U.S. Constitution” were violated 17 when the court admitted “other-act” evidence and testimony from the state’s expert, Wendy 18 Dutton. (Doc. 1, p. 46) 19 The respondents filed an answer in which they argue that Sanchez’s due process/fair trial 20 claim is procedurally defaulted while his ineffective assistance claim should be denied on the 21 merits. (Doc. 13) Sanchez filed a reply on May 25, 2017. (Doc. 22) On the same day, he filed 22 two of the pending motions for discovery. (Doc. 20); (Doc. 21) He filed his third discovery 23 motion on June 23, 2017. (Doc. 30) 24 25 Discussion 26 Unlike a party to a normal civil action, a habeas petitioner “is not entitled to discovery 27 as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97 28 (1997). Rule 6(a) of the Rules Governing § 2254 cases permits discovery “only in the -2- 1 discretion of the court and for good cause shown.” Rich v. Calderon, 187 F.3d 1064, 1068 (9th 2 Cir.1999), cert. denied, 528 U.S. 1092. “A ‘good cause’ analysis requires the reviewing court 3 to identify the ‘essential elements’ of the underlying substantive claim, and determine whether 4 petitioner’s allegations, if proven, would satisfy those elements and show the violation of a 5 constitutional right.” Williams v. Hall, 648 F. Supp. 2d 1222, 1225 (D. Or. 2009) (citing Bracy, 6 520 U.S. at 904, 117 S.Ct. at 1797). 7 Since Bracy was decided, the Supreme Court has held in Pinholster that a federal court 8 analyzing a properly exhausted habeas claim is limited to the record that was before the state 9 court when the claim was originally denied. See Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 10 1388 (2011). The holding in Pinholster is an additional hurdle the petitioner must overcome 11 if he is to establish “good cause” for habeas discovery. 12 In his first motion, Doc. 20, Sanchez asks for a CD player and a special program that will 13 allow him to listen to “several CD discs which allegedly contain interviews of witnesses in this 14 case.” (Doc. 20, pp. 1-2) Apparently, Sanchez has in his possession CDs (compact discs) that 15 appear on the trial Exhibit List and are labeled Exhibit J-1 and Exhibit 1A. (Doc. 26-1, pp. 3, 16 4); (Doc. 29, p. 4) (citing respondents’ attachment 1) Exhibit J-1 is identified only as “C.D. 17 in plastic case.” (Doc. 26-1, p. 3) The accompanying notation states “admitted for purposes 18 of the record only NOT TO GO TO THE JURY.” Id. Exhibit 1A is identified as “C.D. in white 19 paper sleeve.” (Doc. 26-1, p. 4) 20 Apart from Sanchez’s unsupported allegations, there is no indication as to what those 21 discs contain. Accordingly, there is no way of knowing if they have any relevance to the two 22 claims that Sanchez raises in his petition for writ of habeas corpus. The court will not authorize 23 discovery that is nothing more than a “fishing expedition.” Calderon v. U.S. Dist. Court for 24 the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996). The fact that they might have 25 been available to the trial court during Sanchez’s jury trial is not enough to establish relevancy 26 here. 27 Sanchez also asks for a “copy of recorded phone conversation in which Defendant 28 allegedly stated he was going back to San Diego as stated in Moore’s Testimony.” (Doc. 20, -3- 1 p. 2) (citing RT 7-6-10, p. 34, l. 22-23) Sanchez asserts in conclusory fashion that “this 2 evidence is relevant for this case.” Id. 3 The court has examined the motion transcript at the place indicated by Sanchez. In the 4 transcript, Deputy Moore described how he first made contact with Shauna Fabian, who had 5 reported that Sanchez had “inappropriately touched” her daughter. (Doc. 18-1, p. 17) 6 Apparently, when Moore contacted her, she was talking on the telephone with Sanchez. She 7 told Moore that Sanchez was “in a cab headed back downtown [to the Greyhound station].” 8 (Doc. 18-1, p. 18); (R.T. , p. 34, l. 22-23) Moore activated a digital recording device to record 9 the phone call, which had been put on the speaker phone. Moore did not recall whether or not 10 he heard Sanchez say he was in a cab on his way to the Greyhound station. Id., (Doc. 18-1, pp. 11 18-19) Sanchez was subsequently found in downtown Tucson near the Hotel Congress. Id., 12 p. 20; R.T. 37 13 Sanchez does not explain why this recording would be relevant to the claims in his 14 petition. He may be arguing that if the recording does not support Shauna Fabian’s assertion 15 that Sanchez said he was on his way to the Bus Station, then this is evidence that Fabian is a 16 liar, and his counsel should have used this information to impeach her credibility. And this 17 recording, therefore, could be evidence that counsel was ineffective. This court, however, is 18 limited to evaluating the state court’s decision on the ineffectiveness issue in light of the 19 evidence presented to it originally. This court cannot evaluate counsel’s performance de novo 20 based on evidence that was not given to the state court when the issue was exhausted. See 21 Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388 (2011). Accordingly, this recording is not 22 relevant to the pending petition. 23 In the other pending motions, Doc. 21 and Doc. 30, Sanchez moves for permission to 24 discover the California records pertaining to the abuse allegations made by E.R., some of which 25 were introduced at trial as other-act evidence pursuant to Ariz.R.Evid. 404(c). (Doc. 1, p. 8); 26 (Doc. 14, p. 5); (Doc. 16, p. 41) Sanchez alleges that the California authorities investigated 27 those allegations and were about “to dismiss those false allegations” but the Arizona authorities 28 requested that they refrain from dismissing those allegations until after the trial. (Doc. 30, p. -4- 1 7) Apparently, Sanchez believes he was denied “evidence that [was] in the hands of the 2 government” and this denial constitutes a Brady violation. (Doc. 30, pp. 7, 10); see Brady v. 3 Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 4 Sanchez, however, does not raise a Brady claim in his pending petition for writ of habeas 5 corpus. Accordingly, the evidence he seeks is not relevant. Without a showing of relevance, 6 Sanchez cannot show “good cause.” He therefore is not entitled to discovery or an evidentiary 7 hearing. See also U. S. ex rel. Nunes v. Nelson, 467 F.2d 1380, 1380 (9th Cir. 1972) 8 (“Appellant is not entitled to a discovery order to aid in the preparation of some future habeas 9 corpus petition.”). 10 IT IS ORDERED that Sanchez’s motions for discovery and an evidentiary hearing are 11 DENIED. (Doc. 20); (Doc. 21); (Doc. 30) He has not shown “good cause” as required by Rule 12 6(a) of the Rules Governing Habeas Corpus Cases Under § 2254. 13 14 DATED this 5th day of July, 2017. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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