Ernest DeWayne Jones v. Robert K. Wong

Filing 68

Supplemental BRIEF filed by Petitioner Ernest DeWayne Jones. on the Effect of Cullen v. Pinholster on the Court's Power to Grant an Evidentiary Hearing regarding First MOTION for Hearing Evidentiary Hearing 59 . (Laurence, Michael)

1 Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
2
Bethany Lobo (Bar No. 248109)
3 HABEAS CORPUS RESOURCE CENTER
4 303 Second Street, Suite 400 South
San Francisco, California 94107
5
Telephone: [phone]
6 Facsimile: [phone]
[e-mail]
7 E-mail:
[e-mail]
8
Attorneys for Petitioner Ernest Dewayne Jones
9
10

UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12 ERNEST DEWAYNE JONES,
13

Petitioner,

14

Case No. CV-09-2158-CJC

v.

15
16 MICHAEL MARTEL, Acting
Warden of California State Prison at
17 San Quentin,
18

CAPITAL CASE
Petitioner’s Supplemental Brief on the
Effect of Cullen v. Pinholster on the
Court’s Power to Grant an Evidentiary
Hearing

Respondent.

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TABLE OF CONTENTS

1
2
3

Introduction ................................................................................................................ 1 

4 I. 
5
6

The Supreme Court’s Decision in Pinholster Did Not Alter the
Well-Established Principles Governing Mr. Jones’s Right to an
Evidentiary Hearing. ......................................................................................... 4 
A.  The Limitation on the Ability to Grant Relief Contained in
Section 2254(D) Is Distinct From the Requirements of Section
2254(E)(2) for Conducting a Hearing. ....................................................... 4 

7
8

B.  The Decision in Pinholster Is Limited to the Scope of the
Evidence to Be Considered Under Section 2254(D)(1). ............................ 6 

9
10

C.  Pinholster Does Not Disturb the Law Regarding Evidentiary
Hearings Under the AEDPA. ...................................................................... 8 

11
12

D.  Pinholster Did Not Affect Ninth Circuit Precedent Interpreting
28 U.S.C. Section 2254(D)(2). ................................................................... 9 

13
14
15
16
17
18
19

II. 

An Evidentiary Hearing Is Warranted Given the Lack of State
Court Process Afforded to Mr. Jones. ............................................................. 11 
A.  A Hearing Is Necessary Because the State Court Failed to
Accord Mr. Jones a Fair Opportunity to Develop and Present
the Facts Supporting His Claims. ............................................................. 11 
B.  A Federal Evidentiary Hearing and Fact-Finding May Be
Necessary to Uncover New Evidence. ..................................................... 16 

20
21
22

III.  Requiring the Parties to Brief the Application of Section 2254(D)
Now Would Be Premature and Would Defeat Judicial Efficiency. ................ 17 
IV.  Conclusion ...................................................................................................... 19 

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1

TABLE OF AUTHORITIES

2

Page(s)

3 CASES
4
Bd. of Prison Terms v. Sup. Ct.,
130 Cal. App. 4th 1212, 31 Cal. Rptr. 2d 70 (2005) ........................................... 15
5
6 Brown v. Payton,
544 U.S. 133, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005) ................................... 4
7
8 Chia v. Cambra,
360 F.3d 997 (9th Cir. 2004) ................................................................................. 4
9
Conway v. Houk,
10
No. 2:07–cv–947, 2011 WL 2119373 (S.D. Oh. May 26, 2011) ..................16, 18
11
Cullen v. Pinholster,
12
563 U.S. ___, 131 S. Ct. 1388 (2011) ..........................................................passim
13 Doody v. Ryan,
___ F.3d ___, No. 06-17161, 2011 WL 1663551 (9th Cir. May 4, 2011)
14
(Kozinski, C.J., concurring) .................................................................................. 2
15
Durdines v. Superior Court,
16
76 Cal. App. 4th 247, 90 Cal. Rptr. 3d 217 (1999) ............................................. 15
17 Earp v. Ornoski,
18

431 F.3d 1158 (9th Cir. 2005) .........................................................................3, 10

19 Gapen v. Bobby,
No. 3:08-cv-280, 2011 U.S. Dist. LEXIS 62177 (S.D. Oh. June 10, 2011) ... 9, 17
20
21 Harrington v. Richter,
__ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).......................................... 2
22
Houston v. Schomig,
23
533 F.3d 1076 (9th Cir. 2008) ............................................................................... 9
24
In re Hochberg,
2 Cal. 3d 870, 87 Cal. Rptr. 681 (1970) .............................................................. 14
25
26 In re Lawler,
23 Cal. 3d 190, 151 Cal. Rptr. 833 (1979)....................................................13, 15
27
28
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1 In re Lewallen,
23 Cal. 3d 274, 152 Cal. Rptr. 528 (1979).......................................................... 13
2
3 In re Serrano,
10 Cal. 4th 447, 41 Cal. Rptr. 2d 695 (1995) ...............................................14, 15
4
Jones v. Basinger,
5
635 F.3d 1030 (7th Cir. 2011) ........................................................................... 2, 9
6
Lockyer v. Andrade,
7
538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003)...................................... 9
8 Michael Williams v. Taylor,
529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) ....................... 5, 11, 12
9
10 Nunes v. Mueller,
350 F.3d 1045 (9th Cir. 2003) ............................................................................. 10
11
Panetti v. Quarterman,
12
551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007) ............................... 3, 5
13
People v. Duvall,
14
9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995) .................................................14, 15
15 People v. Gonzalez,
51 Cal. 3d 1179, 275 Cal. Rptr. 729 (1990) ........................................................ 15
16
17 People v. Pacini,
120 Cal. App. 3d 877, 174 Cal. Rptr. 820 (1981) ............................................... 13
18
19 People v. Romero,
8 Cal. 4th 728, 35 Cal. Rptr. 2d 270 (1994) .............................................6, 13, 14
20
Pinholster v. Ayers,
21
590 F.3d 651 (9th Cir. 2009) ................................................................................. 7
22 Rhines v. Weber,
23

544 U.S. 269 (2005) ............................................................................................ 16

24 Rompilla v. Beard,
545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) ................................... 5
25
26 Schriro v. Landrigan,
550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) ...........................5, 6, 8
27
28
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1 Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ................................. 5, 7
2
3 Swain v. Pressley,
430 U.S. 372, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977) ...................................... 16
4
Taylor v. Maddox,
5
366 F.3d 992 (9th Cir. 2004) ............................................................................... 10
6
Tice v. Johnson,
7
___ F.3d ___, No. 09-8245, 2011 WL 1491063 (4th Cir. Apr. 20, 2011) ....... 2, 19
8 Tilcock v. Budge,
538 F.3d 1138 (9th Cir. 2008) ............................................................................... 9
9
10 Townsend v. Sain,
372 U.S. 293, 312, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) .............................8, 10
11
Waddington v. Sarausad,
12
555 U.S. 179, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009) ................................... 19
13
Wellons v. Hall,
14
___ U.S. ___, 130 S. Ct. 727, 175 L. Ed. 2d 684 (2010) ............................passim
15 Williams v. Woodford,
384 F.3d 567 (9th Cir. 2002) ................................................................................. 2
16
17 Wilson v. Corcoran,
562 U.S. ___, 131 S. Ct. 13, 178 L. Ed. 2d 276 (2010) ...............................18, 19
18
19 Winston v. Kelly,
592 F.3d 535 (4th Cir. 2010) ................................................................................. 3
20
STATUTES
21
28 U.S.C. § 2254(d) ..........................................................................................passim
22
28 U.S.C. § 2254(d)(1)......................................................................................passim
23
24 28 U.S.C. § 2254(d)(2)......................................................................................passim
25 28 U.S.C. § 2254(e)(2) ........................................................................................... 4, 8
26 Cal. Penal Code § 1480 (West 2011) ....................................................................... 13
27 Cal. Penal Code § 1054.9 (West 2011) .................................................................... 15
28
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1 Cal. Penal Code § 1476 (West 2011) ...................................................................6, 14
2 Cal. Penal Code § 1484 (West 2011) .............................................................6, 13, 15
3
OTHER AUTHORITIES
4
Cal. Rules of Ct., Rule 4.551(c)(1) .......................................................................... 14
5
California Commission on the Fair Administration of Justice, Final Report
6
58 (2008) .......................................................................................................16, 17
7 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
8

Procedure § 32.3, at 1580 (5th ed. 2005)............................................................ 18

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Petitioner’s Supplemental Brief on the Effect of
Cullen v. Pinholster on the Court’s Power to Grant
an Evidentiary Hearing

Case No. CV-09-2158-CJC

1 Michael Laurence (Bar No. 121854)
2 Cliona Plunkett (Bar No. 256648)
Bethany Lobo (Bar No. 248109)
3
HABEAS CORPUS RESOURCE CENTER
4 303 Second Street, Suite 400 South
5 San Francisco, California 94107
Telephone: [phone]
6 Facsimile: [phone]
[e-mail]
7 E-mail:
[e-mail]
8
Attorneys for Petitioner Ernest Dewayne Jones
9
10

UNITED STATES DISTRICT COURT

11

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12 ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

13

Petitioner,

CAPITAL CASE

14

v.

15
16 MICHAEL MARTEL, Acting
Warden of California State Prison at
17 San Quentin,
18
Respondent.

Petitioner’s Supplemental Brief on the
Effect of Pinholster v. Cullen on the
Court’s Power to Grant an Evidentiary
Hearing

19
20
21

INTRODUCTION
On February 17, 2011, Mr. Jones filed a 251-page Motion for Evidentiary

22 Hearing providing substantial reasons why this Court should conduct an evidentiary
23 hearing on Claims One, Three, Four, Five, Fifteen, Sixteen, Eighteen, Twenty-three
24 and Twenty-four contained in the Petition for Writ of Habeas Corpus (“Petition”).
25 Petitioner’s Motion for Evidentiary Hearing (Motion), ECF No. 59. The Motion
26 extensively demonstrates the reasons that the allegations in the Petition—which were
27 also fully presented in the state habeas corpus proceedings—state a prima facie case
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1 of several federal constitutional violations. In resolving whether Mr. Jones is entitled
2 to an evidentiary hearing, this Court necessarily must determine whether “he has
3 alleged facts that, if proven, would entitle him to habeas relief[.]” Williams v.
4 Woodford, 384 F.3d 567, 586 (9th Cir. 2002). Answering this threshold question is a
5 necessary prerequisite to determining both whether Mr. Jones is entitled to relief on
6 these claims and whether the state court’s adjudication of those claims merits
7 deference under 28 U.S.C. section 2254(d). See, e.g., Tice v. Johnson, ___ F.3d ___,
8 No. 09-8245, 2011 WL 1491063, *15 (4th Cir. Apr. 20, 2011) (“At the risk of stating
9 the painfully obvious, our perception of how reasonably another court applies the law
10 in a particular case is best informed by conducting our own, independent application
11 so that we may gauge how the two compare.”); Jones v. Basinger, 635 F.3d 1030,
12 1040-44 (7th Cir. 2011) (determining whether petitioner met his “threshold burden” to
13 show a Sixth Amendment confrontation violation before resolving whether the state
14 court decision unreasonably applied clearly established federal law).
15

Prior to respondent filing a response to the Motion, on April 6, 2011, this Court

16 ordered Mr. Jones to file a supplemental brief on the effect, if any, that the U.S.
17 Supreme Court decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011),
18 had on his entitlement to an evidentiary hearing. Order, ECF 62. Mr. Jones
19 respectfully submits that the Supreme Court’s decision in Pinholster does not affect
20 this Court’s authority to order, or the propriety of, an evidentiary hearing in this case.
21

The Pinholster decision did nothing to alter the careful balance that federal

22 habeas law strikes between ensuring federal vindication of constitutional rights and
23 respecting state court processes that permit a full and fair adjudication of those
24 constitutional rights. See Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 780, 178
25 L. Ed. 2d 624 (2011) (“The writ of habeas corpus stands as a safeguard against
26 imprisonment of those held in violation of the law.”); Doody v. Ryan, ___ F.3d ___,
27 No. 06-17161, 2011 WL 1663551, *37 (9th Cir. May 4, 2011) (Kozinski, C.J.,
28
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1 concurring) (“Comity doesn’t mean being comatose.”). Instead, the Pinholster
2 decision addressed a narrow question of law involving 28 U.S.C. section 2254(d)(1).
3 Critically, the decision did not affect well-established law governing evidentiary
4 hearings, including controlling Ninth Circuit precedent interpreting section
5 2254(d)(2), which mandates an evidentiary hearing in this case. See Wellons v. Hall,
6 ___ U.S. ___, 130 S. Ct. 727, 730, 175 L. Ed. 2d 684 (2010); Earp v. Ornoski, 431
7 F.3d 1158, 1167 (9th Cir. 2005).
8

Moreover, when, as here, the state court declines “the first opportunity to

9 review [a] claim and to correct any constitutional violation,” Pinholster, 131 S. Ct. at
10 1401 (internal quotations and citations omitted), by refusing to institute a proceeding
11 in which issues of fact are framed and decided, federal principles of comity,
12 federalism, and finality “do not require deference,” Winston v. Kelly, 592 F.3d 535,
13 553 (4th Cir. 2010) (when state court had opportunity to consider “a more complete
14 record, but chose to deny” request for evidentiary hearing, deference not required).
15 On the contrary, the Constitution, the Antiterrorism and Effective Death Penalty Act of
16 1996 (“AEDPA”), and fairness dictate that a federal court review the state court’s legal
17 determinations de novo because the state court’s procedural tools for developing a
18 factual record were not adequate either to ascertain the truth or resolve the petitioner’s
19 constitutional claims correctly. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 954,
20 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).
21

Thus, Pinholster is only relevant to the question of whether this Court should

22 require the parties to brief the application of 28 U.S.C. section 2254(d) (“section
23 2254(d)”) at this early stage of the proceedings. Judicial efficiency, comity, and
24 fundamental fairness in capital sentencing require that section 2254(d)’s application be
25 addressed after full factual development of Mr. Jones’s claims, when all substantive
26 issues may be briefed in a single document. Whether an application of federal law is
27 objectively unreasonable under section 2254(d)(1) often requires an “intensive fact28
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1 bound inquiry highly dependent upon the particular circumstances of a given case.”
2 Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). To conduct such an inquiry at
3 this early stage of the proceedings is neither warranted nor a prudent use of limited
4 resources.
5

I. THE SUPREME COURT’S DECISION IN PINHOLSTER DID NOT

6

ALTER THE WELL-ESTABLISHED PRINCIPLES GOVERNING

7

MR. JONES’S RIGHT TO AN EVIDENTIARY HEARING.
A.

8

The Limitation on the Ability to Grant Relief Contained in Section
2254(D) Is Distinct From the Requirements of Section 2254(E)(2) for

9

Conducting a Hearing.

10

The AEDPA “sets several limits on the power of a federal court to grant an

11

12 application for a writ of habeas corpus on behalf of a state prisoner[,]” Pinholster, 131
13 S. Ct. at 1398, including the limitation on a federal court’s ability to grant relief
14 contained in section 2254(d). For “any claim” that has been “adjudicated on the
15 merits in State court[,]” section 2254(d) precludes a federal court from granting relief
16 unless the state court’s adjudication “resulted in a decision that was contrary to, or
17 involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. §
18 2254(d)(1),1 or “resulted in a decision that was based on an unreasonable
19
20

1

The Supreme Court has identified “two categories of cases” in which Section
21 2254(d)(1) authorizes a federal court to grant habeas relief to a state prisoner, on a
22 claim that has been adjudicated on the merits by a state court:
Under the “contrary to” clause, a federal habeas court may grant the
23
writ if the state court arrives at a conclusion opposite to that reached by
this Court on a question of law or if the state court decides a case
24
differently than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a federal habeas
25
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably
26
applies that principle to the facts of the prisoner’s case.
27 Terry Williams, 529 U.S. at 412-13; see also Brown v. Payton, 544 U.S. 133, 141,
125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005) (defining “unreasonable application”).
28
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1 determination of the facts,” 28 U.S.C. § 2254(d)(2).2 Once a petitioner satisfies either
2 section 2254(d)(1) or (d)(2), a federal court’s determination of the merits of the claim
3 are reviewed de novo. See, e.g., Panetti, 551 U.S. at 953-54 (considering petitioner’s
4 claim on the merits without any deference to the state court’s decision after
5 concluding that the state court had unreasonably applied federal law under (d)(1)).
In contrast to section 2254(d)’s limitation on a federal court’s ability to grant

6

7 relief, section 2254(e) applies to a court’s ability to conduct an evidentiary hearing.
8 As the Supreme Court explained in Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.
9 Ct. 1933, 167 L. Ed. 2d 836 (2007), prior to the enactment of the AEDPA, the decision
10 to grant an evidentiary hearing was left to the “sound discretion” of district courts.
11 Although the AEDPA did not alter that “basic rule,” id., section 2254(e)(2) added new
12 requirements for petitioners who have “failed to develop the factual basis of a claim in
13 State court proceedings” because of a “lack of diligence, or some greater fault,
14 attributable to the prisoner or the prisoner’s counsel.” Michael Williams v. Taylor, 529
15 U.S. 420, 432, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000). When the petitioner “made
16 a reasonable attempt, in light of the information available at the time, to investigate
17 and pursue claims in state court,” however, the diligence requirement is satisfied. Id.
18 at 435. If the state court record “precludes habeas relief,” the district court is “not
19 required to hold an evidentiary hearing.” Pinholster, 131 S. Ct. at 1399 (quoting
20 Landrigan, 550 U.S. at 474). In other words, it is only when the record precludes
21 relief, such as when “the record refutes the applicant’s factual allegations,” that
22
23
24

2

When a state court fails to adjudicate a claim on its merits, section 2254(d)
25 does not apply and this Court must independently assess the merits of a petitioner’s
claims. See Pinholster, 131 S. Ct. at 1400; Rompilla v. Beard, 545 U.S. 374, 390,
26 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (“Because the state courts found the
27 representation adequate, they never reached the issue of prejudice, and so we
examine this element of the Strickland claim de novo.”) (internal citation omitted).
28
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1 Landrigan vests in the district court the authority to deny an evidentiary hearing. See
2 Landrigan, 550 U.S. at 474; see also Motion at 5-6.
B.

3

The Decision in Pinholster Is Limited to the Scope of the Evidence to
Be Considered Under Section 2254(D)(1).

4

In Pinholster, the Supreme Court addressed the narrow issue of “whether

5

6 review under section 2254(d)(1) permits consideration of evidence introduced in an
7 evidentiary hearing before the federal habeas court.” Pinholster, 131 S. Ct. at 1398.
8 The Court held that “review under § 2254(d)(1) is limited to the record that was
9 before the state court that adjudicated the claim on the merits.” 131 S. Ct. at 1398.
10 The narrow scope of the Supreme Court’s inquiry and the application of the rule to the
11 unique circumstances of Mr. Pinholster’s case limit the relevance of the decision to
12 Mr. Jones’s case.
After Mr. Pinholster filed a petition for writ of habeas corpus in the California

13

14 Supreme Court, that court issued an order to show cause on his penalty-phase
15 ineffective assistance of counsel claim.3 The warden filed a forty-one page return,
16 exclusive of exhibits, and Mr. Pinholster filed a traverse.4 A month later, the
17 California Supreme Court vacated the order to show cause as improvidently issued
18 and denied the petition.5
19
20

3

Under California law, when a petition “is sufficient on its face (that is, the
21 petition states a prima facie case on a claim that is not procedurally barred), the court
22 is obligated by statute” to issue an order to show cause. People v. Romero, 8 Cal. 4th
728, 737, 35 Cal. Rptr. 2d 270 (1994); Cal. Penal Code § 1476 (West 2011).
23
4
Although the issuance of the order to show cause entitled Mr. Pinholster to
24 avail himself to state mechanisms to further discover and develop additional facts to
support his ineffective assistance of counsel claim, he did not do so. Cal. Penal Code
25
§ 1484 (West 2011).
26
5
See Docket, In re Pinholster, California Supreme Court Case No. S034501,
27 available at http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0
&doc_id=1766270&doc_no=S034501 (last visited July 18, 2011).
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Mr. Pinholster thereafter instituted federal proceedings and after exhausting

1

2 additional claims in state court, he sought and was granted an evidentiary hearing in
3 the federal district court. Pinholster, 131 S. Ct. at 1396-97. During the hearing, Mr.
4 Pinholster presented the testimony of two medical experts, Dr. Sophia Vinogradov and
5 Dr. Donald Olson, whose opinions were not presented in state court. Id. at 1397.
6 Relying in part on this expert testimony, the district court granted Mr. Pinholster relief.
7 Id.
8

On rehearing en banc, the Ninth Circuit Court of Appeals affirmed. See

9 Pinholster v. Ayers, 590 F.3d 651, 655 (9th Cir. 2009), reversed by Cullen v.
10 Pinholster, 131 S. Ct. 1388. The Ninth Circuit determined that, even though Mr.
11 Pinholster had not presented Dr. Vinogradov’s and Dr. Olson’s testimony to the state
12 court, it was relevant to determining the reasonableness of the state court’s decision
13 pursuant to section 2254(d)(1). Id. at 666-69. Relying on that evidence, the Ninth
14 Circuit concluded that the California Supreme Court unreasonably applied Strickland
15 v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), when it denied
16 Mr. Pinholster’s ineffective assistance of counsel claim.
17

The Supreme Court reversed, holding that, when a federal court is reviewing a

18 claim under section 2254(d)(1), “the record under review is limited to the record in
19 existence at that same time – i.e., the record before the state court.” Pinholster, 131 S.
20 Ct. at 1398. Because Mr. Pinholster had never presented the expert testimony to the
21 state court, the Ninth Circuit should not have considered that evidence when
22 determining whether the state court decision was an “unreasonable application” of
23 clearly established federal law. Id.
24

The Supreme Court then reviewed the state court record, including the state’s

25 factual response and petitioner’s traverse in the state court proceedings and
26 determined that the California Supreme Court’s denial of the ineffective assistance of
27 counsel claim was not an unreasonable application of federal law. Id. at 1403-04.
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1 With respect to the “deficient performance” prong, in several respects, the facts
2 contained in the state record contradicted Mr. Pinholster’s allegations, id. at 1404-05
3 (referring to billing and time records), and with respect to the “prejudice prong,” the
4 post-trial facts “largely duplicated” the facts heard by the jury, id. at 1409. Thus,
5 Pinholster did nothing more than clarify how a federal court is to conduct the inquiry
6 under section 2254(d)(1).
7
8
9

C.

Pinholster Does Not Disturb the Law Regarding Evidentiary
Hearings Under the AEDPA.

In Townsend v. Sain, the Supreme Court held that “[w]here the facts are in

10 dispute, the federal court in habeas corpus must hold an evidentiary hearing if the
11 habeas applicant did not receive a full and fair evidentiary hearing in a state court,
12 either at the time of the trial or in a collateral proceeding.” 372 U.S. 293, 312, 83 S.
13 Ct. 745, 9 L. Ed. 2d 770 (1963). The Supreme Court has affirmed that Townsend
14 continues to govern a district court’s responsibility to grant an evidentiary hearing in
15 AEDPA-governed cases. Landrigan, 550 U.S. at 473.
16

In Pinholster, the Supreme Court made clear that it was not departing from its

17 prior law on evidentiary hearings under the AEDPA. Pinholster, 131 S. Ct. at 1399
18 (“Our recent decision in Schriro v. Landrigan . . . is consistent as well with our
19 holding here.”) (citation omitted); id. at 1401 n. 8 (“We see no need in this case to
20 address the proper application of § 2254(e)(2)); id. at 1411 n. 20 (“[W]e need not
21 decide whether § 2254(e)(2) prohibited the District Court from holding the
22 evidentiary hearing. . . .”).
23

The distinction between sections 2254(d)(1) and (e)(2) is important. An

24 evaluation of the “deference owed under” section 2254(d)(1) to the state court
25 decision relates to “whether to grant habeas relief,” not whether to grant an
26 evidentiary hearing. Wellons v. Hall, 130 S. Ct. at 730. The court in Pinholster
27 explicitly did not decide “whether a district court may ever choose to hold an
28
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1 evidentiary hearing before it determines that § 2254(d) has been satisfied.” 131 S.
2 Ct. at 1411 n.20. Consequently, the Court did not alter its long-standing holding that
3 “AEDPA does not require a federal habeas court to adopt any one methodology” in
4 deciding section 2254(d)(1) issues. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S. Ct.
5 1166, 1172, 155 L. Ed. 2d 144 (2003); see also Gapen v. Bobby, No. 3:08-cv-280,
6 2011 U.S. Dist. LEXIS 62177, *5-6 (S.D. Oh. June 10, 2011) (noting that Pinholster
7 “does not purport to make any change in the habeas discovery practice at all or to
8 dictate any sequence in which decisions in habeas corpus cases must be made.”). In
9 addition, the Court was silent on the separate question of whether federal habeas
10 courts should examine the merits of the constitutional claim before deciding the
11 section 2254(d) issues. See Wellons, 130 S. Ct. at 730 (explaining that the decision to
12 grant an evidentiary hearing is analytically distinct from the decision to grant relief);
13 Jones, 635 F.3d at 1040-44 (determining whether petitioner met his “threshold
14 burden” to show a Sixth Amendment confrontation violation occurred before
15 determining whether the state court decision unreasonably applied clearly established
16 federal law). Thus, resolving Mr. Jones’s entitlement to a hearing is appropriate
17 without first resolving any section 2254(d)(1) issues. See Section III, infra.
18
19
20

D.

Pinholster Did Not Affect Ninth Circuit Precedent Interpreting 28
U.S.C. Section 2254(D)(2).

As noted above, the Court in Pinholster did not address the scope of section

21 2254(d)(2) and thus did not alter the well-established Ninth Circuit precedent
22 holding that a state court violates section 2254(d)(2) when it does not “afford a
23 petitioner a full and fair hearing.” Tilcock v. Budge, 538 F.3d 1138, 1143 n.2 (9th
24 Cir. 2008) (internal citation omitted); Houston v. Schomig, 533 F.3d 1076, 1083 (9th
25 Cir. 2008) (“AEDPA allows for an evidentiary hearing when a petitioner (1) alleges
26 facts, which, if proven, would entitle him to relief; and (2) shows that he did not
27 receive a full and fair hearing in the state court.”) (citing 28 U.S.C. § 2254(e)(2));
28
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1 Earp, 431 F.3d at 1167 (concluding that where “the state court’s decision was based
2 on an unreasonable determination of the facts . . . the federal court can independently
3 review the merits of that decision”); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.
4 2004) (“If . . . a state court makes evidentiary findings without holding a hearing and
5 giving petitioner an opportunity to present evidence, such findings clearly result in
6 an ‘unreasonable determination’ of the facts.”).
These decisions hold that a state-court decision summarily denying claims for

7

8 relief constitutes an unreasonable determination of the facts under section 2254(d)(2)
9 unless the record shows the allegations “are entirely without credibility or that the
10 allegations would not justify relief even if proved.” Nunes v. Mueller, 350 F.3d
11 1045, 1054-55 (9th Cir. 2003). In Earp, 431 F.3d at 1167, the Ninth Circuit held that
12 the California Supreme Court’s summary denial of a state petition involved “an
13 unreasonable determination of the facts,” within the meaning of section 2254(d)(2)
14 where the petitioner demonstrated his entitlement to a hearing under Townsend v.
15 Sain. “If the defendant can establish any one of those circumstances, then the state
16 court's decision was based on an unreasonable determination of the facts and the
17 federal court can independently review the merits of that decision by conducting an
18 evidentiary hearing.” Id.6 Given that Mr. Jones’s Motion for an Evidentiary Hearing
19 fully explains why he is entitled to a hearing under the Townsend factors, no further
20 consideration of section 2254(d) is necessary at this stage of the proceedings.
21
6

22
23
24
25
26
27

In Townsend, the Supreme Court identified several factors requiring that a
district court conduct an evidentiary hearing:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported by the
record as a whole; (3) the fact-finding procedure employed by the state
court was not adequate to afford a full and fair hearing; (4) there is a
substantial allegation of newly discovered evidence; (5) the material
facts were not adequately developed at the state-court hearing; or (6)
for any reason it appears that the state trier of fact did not afford the
habeas applicant a full and fair hearing.
Townsend, 372 U.S. at 313.

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1

II. AN EVIDENTIARY HEARING IS WARRANTED GIVEN THE LACK
OF STATE COURT PROCESS AFFORDED TO MR. JONES.

2
3

To the extent that this Court desires the parties to address the application of

4 section 2254(d)(1), Pinholster does not control here, because it addressed only the
5 situation in which a petitioner has received all state process necessary to develop
6 factually and present his claims, but nonetheless withholds readily available evidence
7 from the state court and seeks to add additional evidence through a federal
8 evidentiary hearing. Mr. Jones’s case is instead controlled by Michael Williams and
9 Wellons v. Hall, which authorize federal evidentiary hearings when the state court
10 process unfairly thwarted the full development of facts to support a petitioner’s
11 claims.7 Further, post-Pinholster, petitioners are still permitted to prove, pursuant to
12 Section 2254(a), that a constitutional violation invalidates their capital judgment.
13

A.

14

A Hearing Is Necessary Because the State Court Failed to Accord Mr.
Jones a Fair Opportunity to Develop and Present the Facts

15

Supporting His Claims.

16

In Michael Williams, the U.S. Supreme Court recognized the unfairness of

17
18
19
20
21
22
23
24
25
26
27
28

7

In fact, Mr. Pinholster himself affirmatively disavowed the proposition that the
state court had adjudicated his ineffective assistance of counsel claim on an
underdeveloped record. See Pinholster, 131 S. Ct. at 1402 n.11. Accordingly, the
Court proceeded on the premise that the case did not involve a diligent petitioner
who had been prevented, through no fault of his own, from developing the facts
material to his claim in state court. See, e.g., id. at 1401 (quoting Michael Williams,
529 U.S. at 437) (“Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal
courts sitting in habeas are not an alternative forum for trying facts and issues which
a prisoner made insufficient effort to pursue in state proceedings.”); id. at 1412
(Alito, J., concurring) (“I would hold that the federal-court hearing should not have
been held because respondent did not diligently present his new evidence to the
California courts.”); id. at 1417 (Sotomayor, J., dissenting) (“It would undermine the
comity principles motivating AEDPA to decline to defer to a state-court adjudication
of a claim because the state court, through no fault of its own, lacked all the relevant
evidence.”).
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1 applying the AEDPA to thwart factual development in federal court when a habeas
2 petitioner—through no fault of his or her own—was unable to develop facts in state
3 court. As the Court recognized, “comity is not served by saying a prisoner ‘has
4 failed to develop the factual basis of a claim’ where he was unable to develop his
5 claim in state court despite diligent effort.” Michael Williams, 529 U.S. at 437. The
6 Court refused to deprive Mr. Williams of an evidentiary hearing because the AEDPA
7 “does not equate prisoners who exercise diligence in pursuing their claims with those
8 who do not.” Id. at 436.
In Wellons v. Hall, the Court reaffirmed the fundamental principle that a state

9

10 may not avail itself of AEDPA limitations on federal review when it has deprived the
11 habeas petitioner of the means to prove a constitutional violation. The Court held
12 that discovery and a federal evidentiary hearing were required because Wellons
13 “repeatedly tried, in both state and federal court, to find out what occurred, but …
14 found himself caught in a procedural morass.”8 130 S. Ct. at 729. In contrast, “had
15 there been discovery or an evidentiary hearing, Wellons may have been able to
16 present more than ‘speculation’ and ‘surmise’ [which the Eleventh Circuit found
17 existed in Wellons’s allegations].” Id. at 730; see also id. at 730 n.3 (“[I]it would be
18 bizarre if a federal court had to defer to state-court factual findings, made without
19 any evidentiary record, in order to decide whether it could create an evidentiary
20 record to decide whether the factual findings were erroneous.”). Accordingly, a
21 district court should not rely “on the very holes in the record that [a petitioner is]
22 trying to fill” when determining that an evidentiary hearing is not warranted. Id. at
23

8

The Eleventh Circuit affirmed the denial of Mr. Wellons’ motions for
24 discovery and an evidentiary hearing, stating that his claims “do not entitle [him] to
25 habeas relief.” 130 S. Ct. at 733. The Supreme Court explained that the relevant
inquiry for determining a petitioner’s right to a hearing was not “whether petitioner
26 was entitled to ultimate relief in the form of a new trial,” but instead “whether
27 petitioner’s allegations . . . entitled him to the discovery and evidentiary hearing that
he sought.” Id. at 730.
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1 731. These principles apply prior to a section 2254(d) determination. When, as here,
2 a state court process denies a habeas petitioner the opportunity to develop the factual
3 basis of his constitutional claims, section 2254(d)(1) may not be invoked to preclude
4 factual development in federal court. See Pinholster, 131 S. Ct. at 1401 (“Provisions
5 like §§ 2254(d)(1) and (d)(2) ensure that ‘[f]ederal courts sitting in habeas are not an
6 alternative forum for trying facts and issues which a prisoner made insufficient effort
7 to pursue in state proceedings.’”) (quoting Michael Williams, 529 U.S. at 437).
For purposes of section 2254(d)(1)’s “unreasonable application” standards, the

8

9 relevant state court post-conviction record and process in Mr. Jones’s case are
10 significantly different from Pinholster. As explained supra, in Pinholster, the state
11 court’s order to show cause: (1) afforded Mr. Pinholster numerous mechanisms to
12 develop his factual allegations, see Cal. Pen. Code § 1484 (West 2011); (2) required
13 the state to file a return containing detailed factual allegations and certain supporting
14 documents, see Cal. Pen. Code § 1480 (West 2011); In re Lewallen, 23 Cal. 3d 274,
15 277-78, 152 Cal. Rptr. 528 (1979); and (3) allowed Mr. Pinholster to file a traverse.
16 These formal pleadings joined the factual and legal issues for resolution. See, e.g.,
17 Lewallen, 23 Cal. 3d at 277-78. Understandably, Mr. Pinholster made no complaint
18 in federal court about any deficiencies in this thorough state court process.
19 Pinholster, 131 S. Ct. at 1402 n.11.
Mr. Jones’s state court proceedings are materially distinguishable. Unlike Mr.

20

21 Pinholster, Mr. Jones was not denied relief after receiving a full and fair state court
22 opportunity to prove his claims. Mr. Jones was deprived of all formal state habeas
23 proceedings, including affirmative mechanisms to develop his allegations and the
24 state’s detailed factual responses to his allegations.9
25
9

Indeed, in California, a petition for writ of habeas corpus serves a “limited
function.” In re Lawler, 23 Cal. 3d 190, 194, 151 Cal. Rptr. 833 (1979); see also
27 People v. Pacini, 120 Cal. App. 3d 877, 884, 174 Cal. Rptr. 820 (1981) (affirming
28 that the petition is “preliminary in nature”)). Following the filing of a habeas corpus
13
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Thus, the state court’s review in this case was a preliminary one. The decision

1

2 to deny relief, rather than grant an order to show cause, represents a determination
3 that discovery and an evidentiary hearing were unwarranted, because even taking all
4 of Mr. Jones’s allegations as true and credible, he failed to state a prima facie case for
5 relief. See, e.g., People v. Duvall, 9 Cal. 4th 464, 474-75, 37 Cal. Rptr. 2d 259
6 (1995). To make this initial assessment under California law, the court must
7 determine whether the petition states facts that, if true, would enable petitioner to
8 prevail. See, e.g., Romero, 8 Cal. 4th at 737; Cal. Rules of Ct., Rule 4.551(c)(1).
9 The state court’s determination must assume that all factual allegations and
10 incorporated information and evidence from appended documents are true and
11 credible. Romero, 8 Cal. 4th at 737; In re Serrano, 10 Cal. 4th 447, 456, 41 Cal.
12 Rptr. 2d 695, 700-01 (1995).10 The court is obligated to issue an order to show cause
13 when presented with a facially sufficient petition. Romero, 8 Cal. 4th at 737; see
14 also Duvall, 9 Cal. 4th at 475; see generally Cal. Penal Code § 1476 (West 2011).
The issuance of an order to show cause critically transforms the state habeas

15

16 process in three ways critical to full, fair, and accurate fact development. First, it
17 allows the petitioner “an opportunity to present evidence in support of the allegations
18 . . . [and] institute[s] a proceeding in which issues of fact are to be framed and
19 decided.” In re Hochberg, 2 Cal. 3d 870, 876 n.4, 87 Cal. Rptr. 681 (1970) (italics
20 omitted). Second, it creates a cause of action which, under Article VI, section 14 of
21 the California Constitution, requires a written, reasoned resolution. Romero, 8 Cal.
22 4th at 740. The court must “do and perform all other acts and things necessary to a
23
24 petition, the California Supreme Court may summarily deny it, request an informal
response from the respondent, or issue an order to show cause. The informal
25
response “is not a pleading, does not frame or join issues, and does not establish a
26 ‘cause’ in which a court may grant relief.” Romero, 8 Cal. 4th at 741.
27
28

10

See also Duvall, 9 Cal. 4th at 474-75; Lawler, 23 Cal. 3d at 194; Serrano, 10
Cal. 4th at 456.
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1 full and fair hearing and determination of the case.” Cal. Penal Code § 1484 (West
2 2011). Finally, it confers the power to authorize fact development, beyond the very
3 limited discovery specifically authorized by California Penal Code section 1054.9,
4 including the power to issue subpoenas and compel witness testimony. Cal. Penal
5 Code § 1484 (West 2011); see also People v. Gonzalez, 51 Cal. 3d 1179, 1256-58,
6 275 Cal. Rptr. 729 (1990) (discussing state court’s lack of jurisdiction to order “free7 floating” postconviction discovery absent a proceeding pending before that court);
8 Bd. of Prison Terms v. Sup. Ct., 130 Cal. App. 4th 1212, 1236-42, 31 Cal. Rptr. 2d
9 70, 87-92 (2005) (holding that court cannot order discovery before issuance of an
10 order to show cause; court’s powers as set forth in Penal Code section 1484 to hear
11 evidence, subpoena witnesses, and do whatever is necessary to ensure fairness not
12 available until issues joined); Durdines v. Superior Court, 76 Cal. App. 4th 247, 252,
13 90 Cal. Rptr. 3d 217, 221 (1999) (holding that court lacked power before the issuance
14 of a writ or order to show cause to solicit a declaration from trial counsel).
15

Mr. Jones was summarily denied the issuance of an order to show cause and

16 all the fact development procedures available thereafter. The state court thus failed
17 to provide an adequate or effective forum to test the legality of his detention, despite
18 thousands of pages of detailed allegations and documentary support, which stated
19 multiple claims on which relief could have (and would have) been granted, if the
20 state had provided Mr. Jones with the means to prove them.
21

Under these circumstances, an interpretation of sections 2254(d)(1) and (d)(2)

22 that forecloses discovery, expansion of the record, and/or an evidentiary hearing
23 precludes the application of section 2254(d), for it rewards the state for its own
24 failure to provide an adequate process for ensuring that the facts are fully presented
25 in the state proceeding. Having had no “alternative forum for trying facts and issues”
26 in state court to prove or fill any holes in his allegations, Pinholster, 131 S. Ct. at
27 1401, Mr. Jones is entitled to an evidentiary hearing to allow him the opportunity to
28
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1 develop the record so that this Court may have an appropriate basis from which to
2 determine his entitlement to relief.11
B.

3

A Federal Evidentiary Hearing and Fact-Finding May Be Necessary
to Uncover New Evidence.

4

The majority in Pinholster observed that evidence first developed on federal

5

6 habeas may ultimately lead to relief if that evidence forms the basis for a “new
7 claim[].” Pinholster, 131 S. Ct. at 1401 n.10. As Justice Breyer noted, the majority’s
8 ruling “does not mean that Pinholster is without recourse to present new evidence.
9 He can always return to state court presenting evidence not previously presented.”
10 Id. at 1412 (Breyer, J., concurring in part); see also Rhines v. Weber, 544 U.S. 269,
11 277 (2005). Given the truncated state court process, Mr. Jones should be afforded an
12 opportunity to develop facts that may lead to additional claims and or evidence in
13 support of the claims already presented to the California Supreme Court. See
14 California Commission on the Fair Administration of Justice, Final Report 58 (2008)
15 (“Because California does not provide adequate resources to lawyers handling state
16 habeas claims, 74% of federal habeas applications filed by California death row
17 inmates are stayed for the exhaustion of state remedies.”).12 Particularly, in a “death
18 penalty habeas corpus case,” it is preferable “to err on the side of gathering too much
19 information rather than too little.” Conway v. Houk, No. 2:07–cv–947, 2011 WL
20 2119373, *3-4 (S.D. Oh. May 26, 2011) (permitting the filing of a second discovery
21
22
23
24
25
26

11

Moreover, applying section 2254(d) to preclude an evidentiary hearing when
the state thwarted full factual development renders the AEDPA vulnerable to a
constitutional challenge that it effectuates a suspension of the writ of habeas corpus
in violation of Article I, section 9, clause 2 of the Constitution and a violation of the
Due Process Clause. Such an interpretation should be avoided where an alternative
reasonable interpretation exists. See Swain v. Pressley, 430 U.S. 372, 378, 97 S. Ct.
1224, 1228, 51 L. Ed. 2d 411 (1977).
12

See http://www.ccfaj.org/documents/reports/dp/official/FINAL%20REPORT
27 %20DEATH%20PENALTY.pdf (last visited July 18, 2011).
28
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1 motion notwithstanding Pinholster and noting that the petition “intends to ask the
2 Court to hold these proceedings in abeyance while he returns to state court to exhaust
3 all of the new facts that he identified during the litigation in this court”); see also
4 Gapen, 2011 U.S. Dist. LEXIS 62177 at *5 (“Cullen does not purport to make any
5 change in the habeas discovery practice at all or to dictate any sequence in which
6 decisions in habeas corpus cases must be made … capital litigation is so protracted
7 that it might serve judicial economy to allow depositions while memories are
8 fresher.”).
9

III. REQUIRING THE PARTIES TO BRIEF THE APPLICATION OF

10

SECTION 2254(D) NOW WOULD BE PREMATURE AND WOULD

11

DEFEAT JUDICIAL EFFICIENCY.

12

This Court ordinarily reserves merits briefing until after factual development

13 of the claims and an evidentiary hearing have concluded. To brief section 2254(d)’s
14 application first would require the Court prematurely to resolve merits-related issues
15 – thus squandering scarce judicial resources and unnecessarily taxing the Criminal
16 Justice Act budget. The circumstances of this case—in which the state court did not
17 permit factual development or fact-finding—already have complicated the
18 adjudication of Mr. Jones’s claims. As the California Commission on the Fair
19 Administration of Justice found, “[T]he absence of a [state] published opinion and/or
20 an evidentiary hearing” places a substantial burden on federal courts to adjudicate
21 constitutional claims in capital cases.” California Commission on the Fair
22 Administration of Justice, supra, at 24.
23
To address the complicated and lengthy habeas corpus process, this Court
24 established an orderly process for adjudicating capital habeas petitions by adopting the
25 Guide to Case Management and Budgeting in Capital Cases, which provides for four
26
27
28
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1 phases of litigation.13 Recognizing that multiple submissions of merits briefing
2 unnecessarily strain the federal district courts’ limited resources, the Guidelines
3 allocate final briefing on the merits of a petitioner’s claims to Phase IV, after
4 discovery and factual development, including an evidentiary hearing, have been
5 completed. This process appropriately allows the Court to address simultaneously the
6 merits of a petitioner’s claims and any section 2254(d)(1) limitations on the Court’s
7 ability to grant relief. This unitary process vindicates the Court’s interest in judicial
8 efficiency. See, e.g., Conway, 2011 WL 2119373, at *4 (“Moreover, the Court
9 concludes that its discretion is better exercised in not foreclosing at this stage the
10 possibility of discovery. Were the Court to permit discovery only after it appears that
11 Pinholster would not bar consideration of new evidence, the Court would be adding
12 months of delay to the proceedings, a result that could be avoided by simply
13 permitting discovery that otherwise appears to be warranted under Rule 6.”).
This Court’s Guidelines are consistent with the traditional doctrinal

14

15 requirements of section 2254(d)’s application. See, e.g., Randy Hertz & James S.
16 Liebman, Federal Habeas Corpus Practice and Procedure § 32.3, at 1580 (5th ed.
17 2005) (“[T]he federal court should ordinarily examine the merits of the claim first and
18 then, if the court finds constitutional error, move on to a review of the state court’s
19 decision to determine whether the criteria of section 2254(d)(1) preclude a grant of
20 habeas corpus relief”); see also id. at 1614-26 (collecting and discussing U.S.
21 Supreme Court decisions employing this doctrinal analysis). As the Supreme Court
22 recently explained, the provisions of section 2254(d) function independently from
23 section 2254(a); the latter provides that habeas relief may be afforded to a state
24 prisoner only when his custody violates federal law. Wilson v. Corcoran, 562 U.S.
25
26

13

See
http://www.cacd.uscourts.gov/cacd/AttyAsst.nsf/c8b9bc4dd3050a24
27 882567c500769e4f/fd93b2dee6fe2b1d88256e770072236b?OpenDocument (last
visited July 18, 2011).
28
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1 ___, 131 S. Ct. 13, 17, 178 L. Ed. 2d 276 (2010). The Supreme Court in Wilson ruled
2 that once a petitioner asserts the existence of a constitutional violation, the federal
3 court must determine whether it “agrees with that assertion.” Id.; see also Waddington
4 v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831, 172 L. Ed. 2d 532 (2009) (noting that
5 courts must determine whether a state court determination is erroneous as well as
6 whether it is objectively unreasonable). Indeed, “[i]n most instances, a federal court’s
7 assessment of the reasonableness of the state court’s reasoning and result needs to be
8 informed by the federal court’s own analysis of the merits.” Randy Hertz et al., supra,
9 at 1625; see also Tice, 2011 WL 1491063 at *15.
10
11

IV. CONCLUSION
For reasons set forth above and in the Motion, Mr. Jones is entitled to fact

12 development procedures including an evidentiary hearing, de novo review of each
13 constitutional violation presented in his Petition, and to relief. Should the Court
14 determine that the parties should address the application of section 2254(d) to each of
15 the specific claims in the Motion at this stage of the proceedings, Mr. Jones requests
16 permission to seek an amendment of the Criminal Justice Act budget governing this
17 phase of the proceedings and sufficient time to complete the briefing.
18
19
20

Dated: July 18, 2011

Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER

21
22

By: /s/ Michael Laurence
MICHAEL LAURENCE

23
24

Attorneys for Petitioner
Ernest Dewayne Jones

25
26
27
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