Ernest DeWayne Jones v. Robert K. Wong

Filing 74

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

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

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

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Petitioner,

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Case No. CV-09-2158-CJC

v.

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MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

CAPITAL CASE

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

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

Case No. CV-09-2158-CJC

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TABLE OF CONTENTS

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Table of Authorities......................................................................................................................... ii

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I.

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

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II.

Pinholster Did Not Mandate the Reordering of Federal Habeas Proceedings,
and Respondent’s Repeated Assertion That This Court Must Make a
“Threshold” Section 2254(d) Determination Is Without Support. ........................................2

III.

Resolving the Application of 28 U.S.C. Section 2254(d) After the Evidentiary
Hearing Best Serves the Interests of Judicial Economy. .......................................................5

IV.

Mr. Jones Satisfies Sections 2254(d)(1) and 2254(d)(2) Because He Was
Deprived of a Fair Adjudication of His Claims in State Court. ............................................6

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A. California’s Defective Postconviction Process ..............................................................6

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B. Pinholster Left Intact the Controlling Law Governing a Habeas
Petitioner’s Entitlement to an Evidentiary Hearing Under Section
2254(d)(2). ...................................................................................................................10

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C. The California Supreme Court’s Summary Denial of Mr. Jones’s Petition
Was an Unreasonable Application of Relevant Supreme Court Precedent. ................. 11

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1. The California Supreme Court Violated the Well-Established Rule
Requiring Factual Development When a Well-Pled Claim Is
Presented. ...............................................................................................................12

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2. The Suspension Clause Guarantees a Habeas Petitioner to One Full
and Fair Opportunity to Demonstrate the Unconstitutionality of His
Detention. ...............................................................................................................17

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a.

The Requirements of the Suspension Clause .................................................17

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b.

Reconciliation of the Suspension Clause and the AEDPA .............................18

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c.

California’s Postconviction Process Presents Federal
Constitutional Defects Because It Does Not Allow Most
Petitioners, Including Mr. Jones, a “Full and Fair Opportunity”
To Develop Their Habeas Claims. ..................................................................20

d.

Because Mr. Jones Was Denied His Full and Fair Opportunity to
Demonstrate the Unconstitutionality of His Detention in State
Court, to Deny His Federal Habeas Petition Without an
Evidentiary Hearing Would Violate the Suspension Clause...........................22

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V.

Conclusion ...........................................................................................................................23
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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

TABLE OF AUTHORITIES

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Page(s)

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CASES
Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832 (1947) .......................................13
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)..................................9

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Ballinger v. Prelesnik, No. 2:09-CV-13886, 2011 WL 4905583 (E.D. Mich. Oct. 14,
2011) ....................................................................................................................................4, 22

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Barnett v. Super. Ct., 50 Cal. 4th 890, 114 Cal. Rptr. 3d 576 (2010) ...............................................7

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Bd. of Prison Terms v. Super. Ct., 130 Cal. App. 4th 1212, 31 Cal. Rptr. 3d 70 (2005) ................13

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Bemore v. Martel, No. 08-cv-0311 WAG, 2011 WL 2650337 (S.D. Cal. Jul. 6, 2011) ...................3

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Bishop v. Wood, 426 U.S. 341 (1976), 96 S. Ct. 2074, 48 L. Ed. 2d 684 ......................................22

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Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008)..................... passim

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Carter v. Texas, 177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839 (1900) ..................................12, 13, 14

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Cash v. Culver, 358 U.S. 633, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959) ...........................................14

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Catlin v. Super. Ct., 51 Cal. 4th 300, 120 Cal. Rptr. 3d 135 (2011) .................................................8

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Coleman v. Alabama, 377 U.S. 129, 84 S. Ct. 1152, 12 L. Ed. 2d 190 (1964) ........................12, 13

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Conway v. Houk, No. 2:07-cv-947, 2011 WL 2119373 (S.D. Oh. May 26, 2011) ..........................3

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Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007)............................................................................21

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Cullen v. Pinholster, 563 U.S. ____, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) ................. passim

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Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13. 68 L. Ed. 143 (1923)........................................13, 18

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Dist. Atty’s Office v. Osborne, ___ U.S. ___, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009) ..............19

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Doody v. Ryan, 649 F.3d 986 (9th Cir. 2011) ...........................................................................15, 16

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Durdines v. Super. Ct., 76 Cal. App. 4th 247, 90 Cal. Rptr. 2d 217 (1999) ...........................6, 7, 13

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Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005) ................................................................. 10, 11, 22

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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 159 L. Ed. 2d 98
(2004) .......................................................................................................................................22

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26
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Evans v. Thomas, 518 F.3d 1 (1st Cir. 2008)..................................................................................21
Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996) ...........................17, 21
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Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73
(1992) .......................................................................................................................................18

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Gapen v. Bobby, No. 3:08-cv-280, 2011 U.S. Dist. LEXIS 62177 (S.D. Oh. June 10,
2011) ..........................................................................................................................................4

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Green v. French, 143 F.3d 865 (4th Cir. 1998) ..............................................................................21

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Hale v. Davis, No. 07-12397, 2011 WL 3163375 (E.D. Mich. Jul. 27, 2011) .................................4

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Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).................................5

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Harris v. Nelson, 394 U.S. 286, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969).....................................20

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Houston v. Schomig, 533 F.3d 1076 (9th Cir. 2008) ......................................................................10

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Hurles v. Ryan, 650 F.3d 1301 (9th Cir. 2011)...............................................................................10

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In re Bell, No. CR 133096, Memorandum of Points and Authorities in Opposition to
Motion for Post-conviction Discovery at 43 (July 13, 2009) ....................................................8

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In re Fields, 51 Cal. 3d 1063, 275 Cal. Rptr. 384 (1990) ..............................................................13
In re Hochberg, 2 Cal. 3d 870, 87 Cal. Rptr. 681 (1970) ..............................................................13
In re Kerry Lyn Dalton, No. CR 135002 .........................................................................................9
In re La Twon Weaver, No. CRN22688 .......................................................................................8, 9
In re Lawler, 23 Cal. 3d 190, 151 Cal. Rptr. 833 (1979) ...............................................................16
In re Serrano, 10 Cal. 4th 447, 41 Cal. Rptr. 695 (1995) ........................................................16, 20
In re Steele, 32 Cal. 4th 682, 10 Cal. Rptr. 3d 536 (2004) ...........................................................7, 8
INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) .....................................21
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc) ...............................................................21
McNeal v. Culver, 365 U.S. 109, 81 S. Ct. 413, 5 L. Ed. 2d 445 (1961) .......................................12
Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) ...............................................................................17
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) ................................19
Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003) ............................................................... 10, 11, 19
Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007) ...........15, 16, 19

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Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S. Ct. 223, 100 L. Ed. 126
(1956) .......................................................................................................................................14

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People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995) ......................................................12

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People v. Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729 (1990)...................................................13

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People v. Pacini, 120 Cal. App. 3d 877, 174 Cal. Rptr. 820 (1981) ..............................................16

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People v. Romero, 8 Cal. 4th 728, 35 Cal. Rptr. 2d 270 (1994) .........................................12, 13, 16

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Quezada v. Brown, No. 08-CV-5088 (KAM), 2011 WL 4975343 (E.D.N.Y. Oct. 19, 2011) ..........3

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Reynolds v. Cochran, 365 U.S. 525, 81 S. Ct. 723, 5 L. Ed. 2d 754 (1961) ..................................14

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Richmond Screw Anchor. v. United States, 275 U.S. 331, 48 S. Ct. 194, 72 L. Ed. 303
(1928) .......................................................................................................................................23

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Riel v. Warden, No. CIV S-01-0507 LKK DAD, 2011 U.S. Dist. LEXIS 121661 (E.D.
Cal. Oct. 20, 2011) ...............................................................................................................3, 20

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Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) .....................................................................15

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Sanders v. Curtin, No. 2:08-CV-14448, 2011 U.S. Dist. LEXIS 49094 (E.D. Mich. May
9, 2011) ....................................................................................................................................21

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Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007)..........................19
Smith v. Bagley, No. 1:00 CV 1961, 2011 WL 4345909 (N.D. Oh. Sept. 15, 2011) .......................3

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Stop the Beach Renourishment v. Fla. Dept. of Envtl. Protection, ___ U.S. ___, 130 S. Ct.
2592, 177 L. Ed. 2d 184 (2010) ...............................................................................................19

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Swain v. Pressley, 430 U.S. 372, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977) .......................17, 19, 22

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Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ......................................................................10, 19

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Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011)....................................................................................5

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Tilcock v. Budge, 538 F.3d 1138 (9th Cir. 2008) ............................................................................10

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Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) ....................................... 11

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United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 2d 232 (1952)..............18, 19, 22

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United States v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 97 L. Ed. 770 (1953) ..................................22

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Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) ................................19

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(Michael) Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) ..... passim

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(Terry) Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ....................2

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Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) ........................................................................15, 18

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Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011) ......................................................................4, 5

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Ybarra v. State, 103 Nev. 8, 731 P.2d 353 (1987) ............................................................................5

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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Ybarra v. State, 127 Nev. Adv. Op. 4, 247 P. 3d 269 (2011) ............................................................5

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CONSTITUTIONAL PROVISIONS

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Cal. Const., art. VI .........................................................................................................................13

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U.S. Const., art. I, § 9, cl. 2 .................................................................................................... passim

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STATUTES

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28 U.S.C. § 2254(a) .....................................................................................................................1, 2
28 U.S.C. § 2254(d) ............................................................................................................... passim
28 U.S.C. § 2254(d)(1) .......................................................................................................... passim
28 U.S.C. § 2254(d)(2) .......................................................................................................... passim
28 U.S.C. § 2254(e)(2).................................................................................................10, 14, 16, 22
28 U.S.C. § 2255 ............................................................................................................................18
Cal. Penal Code § 1054.9 (West 2011) ..............................................................................7, 8, 9, 13
Cal. Penal Code § 1476 (West 2011) .............................................................................................12
Cal. Penal Code § 1484 (West 2011) .........................................................................................7, 13
OTHER AUTHORITIES
Cal. R. Ct. 4.551(b) (West 2011) .....................................................................................................6
Cal. R. Ct. 4.551(c) (West 2011) ......................................................................................................6
Cal. R. Ct. 4.551(d) (West 2011) .....................................................................................................6
Cal. R. Ct. 4.551(e) (West 2011) ......................................................................................................6
Cal. R. Ct. 4.551(f) (West 2011) ......................................................................................................6

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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

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Petitioner,

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Case No. CV-09-2158-CJC

v.

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MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

CAPITAL CASE

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

I. INTRODUCTION
Mr. Jones requests a federal evidentiary hearing followed by a single round of briefing
that will allow the Court to determine Mr. Jones’s satisfaction of both 28 U.S.C. section 2254(a)
and (d). There are three primary reasons why Pinholster is consistent with this request and
should not be construed to delay fact-finding and resolution of Mr. Jones’s claims. See Cullen v.
Pinholster, 563 U.S. ____, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011). First, Pinholster merely
resolved whether a federal court may consider new evidence in deciding whether 28 U.S.C.
section 2254(d)(1) bars the granting of relief. Pet’r’s Supplemental Br. on the Effect of Cullen v.
Pinholster on the Ct.’s Power to Grant an Evidentiary Hr’g (Supp. Br.) 6-8, July 18, 2011, ECF
No. 68. Significantly, Pinholster did not affect controlling case law regarding Mr. Jones’s
entitlement to a hearing and did not dictate that the hearing must follow a section 2254(d)
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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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determination. Supp. Br. 8-10. Second, briefing the application of 28 U.S.C. section 2254(d) on

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a claim-by-claim basis at this early stage of the proceedings would result in substantial costs,

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delay the ultimate resolution of this case, and unnecessarily require a second round of

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comprehensive briefing on similar issues under section 2254(a) following a hearing. Supp. Br.

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17-19.

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developed and presented facts in support of his claims, but defects in California’s postconviction

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process precluded the full and fair development and resolution of his claims. Supp. Br. 11-17.

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As set forth in Section IV, infra, when this Court conducts its section 2254(d) determination, Mr.

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Jones will demonstrate that he satisfies both section 2254(d)(1) and (d)(2) due, inter alia, to

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Third, prompt factfinding is particularly warranted given that Mr. Jones diligently

these systemic defects.

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II. PINHOLSTER DID NOT MANDATE THE REORDERING OF

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FEDERAL HABEAS PROCEEDINGS, AND RESPONDENT’S

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REPEATED ASSERTION THAT THIS COURT MUST MAKE A

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“THRESHOLD” SECTION 2254(D) DETERMINATION IS WITHOUT

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SUPPORT.

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Respondent repeatedly asserts that Pinholster requires this Court to treat section 2254(d)

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as a “threshold inquiry.” Respondent’s Opposition to Pet’r’s Supplemental Br. on the Effect of

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Cullen v. Pinholster on the Ct.’s Power to Grant an Evidentiary Hr’g (Opp’n) 3, Sept. 14, 2011,

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ECF No. 71; see also id. at 4 (describing section 2254(d) as a “threshold determination”); id. at 5

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(describing section 2254(d) as a “threshold bar”). Respondent’s contention (1) disregards the

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express language of section 2254(d), which is framed as a bar to the ultimate grant of federal

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habeas relief rather than as a threshold inquiry;1 and (2) ignores the limited nature of the issue

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that Pinholster resolved.2 Critically, respondent offers no justification to conduct the section

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See, e.g., (Terry) Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d
389 (2000) (Section 2254(d) “places a new constraint on the power of a federal habeas court to
grant a state prisoner’s application for a writ of habeas corpus with respect to claims
adjudicated on the merits in state court.”) (emphasis added).
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Pinholster, 131 S. Ct. at 1398 (resolving only that the § 2254(d)(1) inquiry “is limited to
the record that was before the state court that adjudicated the claim on the merits”).
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2254(d) inquiry at this stage of the proceedings—when a full understanding of the factual and

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legal bases of each claim is lacking and the application of the Supreme Court’s recent decisions

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has not been fully resolved by the Ninth Circuit.

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Respondent initially correctly states the sole relevant issue that Pinholster decided:

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whether a federal court may consider evidence not previously presented to the state court in

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determining whether a habeas corpus petitioner satisfies 28 U.S.C. section 2254(d)(1). Opp’n 1-

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2.

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permissibility of a federal court permitting fact development and conducting an evidentiary

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hearing prior to resolving whether section 2254(d) bars relief; and (2) as set forth in Section IV,

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The Court expressly left the law in two areas unchanged, as set forth below: (1) the

infra, the application of 28 U.S.C. section 2254(d)(2). 131 S. Ct. at 1398, 141 n.20.

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Post-Pinholster case law confirms that federal fact development is permitted prior to the

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section 2254(d) determination, when, as here, it is warranted by the particular facts of the case.

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See, e.g., Riel v. Warden, No. CIV S-01-0507 LKK DAD, 2011 U.S. Dist. LEXIS 121661, *4

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(E.D. Cal. Oct. 20, 2011) (“The Supreme Court in Pinholster did not bar this court from taking

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evidence in a federal habeas corpus proceeding.”). As a result, courts have held that “Pinholster

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did not . . . alter or even speak to the standards governing discovery set forth in [Habeas] Rule

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6,” Conway v. Houk, No. 2:07-cv-947, 2011 WL 2119373, *3 (S.D. Oh. May 26, 2011), and have

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continued to order discovery prior to conducting an inquiry into whether section 2254(d) would

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ultimately bar relief. See, e.g., Riel, 2011 U.S. Dist. LEXIS 121661, *5 (permitting deposition of

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petitioner’s mother, after finding that Pinholster did not bar the gathering of evidence in a federal

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habeas corpus proceeding prior to a section 2254(d) determination where good cause exists);

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Quezada v. Brown, No. 08-CV-5088 (KAM), 2011 WL 4975343, *2 (E.D.N.Y. Oct. 19, 2011)

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(denying state’s motion to reconsider order permitting discovery prior to section 2254(d)

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determination, because Pinholster did not address propriety of fact development); Smith v.

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Bagley, No. 1:00 CV 1961, 2011 WL 4345909, *2-3 (N.D. Oh. Sept. 15, 2011) (noting that

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Pinholster did not alter the standards governing discovery and thus refusing to vacate pre-

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Pinholster order permitting discovery prior to section 2254(d) determination); Bemore v. Martel,

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No. 08-cv-0311 WAG, 2011 WL 2650337, *2-3 (S.D. Cal. Jul. 6, 2011) (granting petitioner’s

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motion to expand the record to include witness declaration, prior to the section 2254(d)

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determination); Gapen v. Bobby, No. 3:08-cv-280, 2011 U.S. Dist. LEXIS 62177, *5-6 (S.D. Oh.

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June 10, 2011) (permitting pre-section 2254(d) discovery and noting that Pinholster “does not

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purport to make any change in the habeas discovery practice at all or to dictate any sequence in

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which decisions in habeas corpus cases must be made.”).

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Similarly, courts have ordered evidentiary hearings. See Ballinger v. Prelesnik, No. 2:09-

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CV-13886, 2011 WL 4905583, *3 (E.D. Mich. Oct. 14, 2011) (holding that hearing was required

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where petitioner’s allegations, if established, would support relief under 2254(a)); Hale v. Davis,

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No. 07-12397, 2011 WL 3163375, *8 (E.D. Mich. Jul. 27, 2011) (“Although Cullen certainly

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addresses how and when evidence may be considered, it did not decide or address when an

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evidentiary hearing is proper.”). Notably, in Ballinger, the district court held that 2254(d) did not

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bar a federal evidentiary hearing because “[t]he state court . . . concluded that petitioner’s claim

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was meritless without further factual development. However, it refused to provide [p]etitioner

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with any opportunity to develop a record to support his claim . . . .” 2011WL 4905583, *3.

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Respondent erroneously relies on Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011), to

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assert that post-Pinholster, satisfying section 2254(d) is a prerequisite to the granting of an

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evidentiary hearing. Ybarra provides no support for respondent’s assertion. Respondent cites to

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the court’s discussion of Mr. Ybarra’s claim that the trial court improperly denied his change of

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venue motion. Opp’n 3 (quoting footnote 3 of the Ninth Circuit’s opinion); see also Ybarra, 656

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F.3d at 991-94. The Nevada Supreme Court first resolved this issue in a pretrial interlocutory

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appeal, then reaffirmed its decision in a subsequent appeal from the denial of a state post-

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conviction petition. Ybarra, 656 F.3d at 991-94 & n.4. The issue on appeal to the Ninth Circuit

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was whether the district court erred in concluding that the issue was unexhausted, and if so,

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whether Mr. Ybarra was entitled to relief on the state court record. Id. at 991.

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The Ninth Circuit concluded that the claim had been exhausted, but that Mr. Ybarra was

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not entitled to relief. Id. at 991-92. The basis for the court’s decision, however, was not that

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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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section 2254(d) precluded “additional factfinding.” Opp’n 3. Rather, it was premised upon the

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case’s lengthy, distinctive procedural history: The Nevada Supreme Court’s 1980 ruling on Mr.

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Ybarra’s interlocutory appeal had long ago resolved the underlying facts of his claim and was

4

“entitled to a presumption of correctness.” Ybarra, 656 F.3d at 992. Most importantly, because

5

the underlying facts were undisputed, Mr. Ybarra did not argue—and had no reason to argue—

6

that additional factfinding, such as a federal evidentiary hearing, was necessary to resolve his

7

claim.3 Given that the state record contained the universe of facts that Mr. Ybarra believed

8

entitled him to relief, the Ninth Circuit’s decision to resolve the merits of the claim, rather than to

9

remand to the district court, provides no support for respondent’s position.

10

III. RESOLVING THE APPLICATION OF 28 U.S.C. SECTION 2254(D)

11

AFTER THE EVIDENTIARY HEARING BEST SERVES THE

12

INTERESTS OF JUDICIAL ECONOMY.

13

As explained in the Supplemental Brief, a claim-by-claim assessment of whether 2254(d)

14

bars relief is best made after full factual development of the claims. At that point, the Court will

15

be best positioned to assess whether the state court’s decision may serve to bar relief that

16

otherwise would be required by the Constitution. Cf. Tice v. Johnson, 647 F.3d 87, 103 (4th Cir.

17

2011) (“At the risk of stating the painfully obvious, our perception of how reasonably another

18

court applies the law in a particular case is best informed by conducting our own, independent

19

application so that we may gauge how the two compare.”). This approach also will afford this

20

Court the benefit of the Ninth Circuit’s resolution of any ambiguity in the application of

21

Pinholster and Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). This

22
23
24
25
26
27
28

3

Given the extensive state court process that Mr. Ybarra received, he unsurprisingly did
not argue that a federal evidentiary hearing was necessary to resolve any of his claims. Prior to
the district court’s denial of his federal habeas corpus petition, Mr. Ybarra had filed four state
post-conviction petitions, at least one of which was resolved after an extensive evidentiary
hearing. Ybarra, 656 F.3d at 988-89; see also Ybarra v. State, 103 Nev. 8, 10, 731 P.2d 353,
354 (1987) (explaining that the trial court conducted a two-day hearing on his ineffective
assistance of counsel claims before denying them in a 58-page order). While the federal
proceedings were ongoing, Mr. Ybarra’s fourth state petition was denied after the state court
conducted a separate two-day evidentiary hearing and considered more than 3,000 pages of
exhibits. Ybarra v. State, 127 Nev. Adv. Op. 4, 247 P. 3d 269, 271 (2011).
5
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Case No. CV-09-2158-CJC

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Court already has ordered briefing of the effect of Pinholster in at least 25 capital habeas corpus

2

cases and the issue has been presented in numerous capital cases before the Ninth Circuit.

3

Unquestionably, briefing the application of section 2254(d) now will require the parties to (1)

4

repeat the numerous arguments already presented in other cases and (2) re-brief the issues after

5

the Ninth Circuit provides further guidance.

6

IV. MR. JONES SATISFIES SECTIONS 2254(D)(1) AND 2254(D)(2)

7

BECAUSE HE WAS DEPRIVED OF A FAIR ADJUDICATION OF

8

HIS CLAIMS IN STATE COURT.

9

As set forth above, Pinholster requires no deviation from the Court’s previous practice of

10

holding an evidentiary hearing prior to adjudicating section 2254(d) issues. Mr. Jones, however,

11

is prepared to demonstrate that he satisfies both sections 2254(d)(1) and (d)(2) due to systemic

12

deficiencies in the state court process, with respect to each of the claims on which he has

13

requested an evidentiary hearing. If this Court believes it is appropriate to resolve section

14

2254(d) issues at this stage, Mr. Jones requests that the Court first solicit briefing and rule on

15

these systemic issues. If the Court finds that section 2254(d) is satisfied on one of these bases,

16

no costly claim-by-claim section 2254(d) briefing will be necessary. An overview of these

17

systemic issues is set forth in sections IV. B. and IV. C. below.

18

A.

19

Under California law, after a habeas petition is filed, the court may request an informal

20

response from the respondent. Petitioner is then entitled to file an informal reply. Cal. R. Ct.

21

4.551(b)(1) & (2) (West 2011). The court must then assume the petitioner’s allegations to be true

22

and determine whether his claims state a prima facie case for relief. If so, the court must issue an

23

order to show cause (OSC) on the relevant claims. Cal. R. Ct. 4.551(c) (West 2011); Durdines v.

24

Super. Ct., 76 Cal. App. 4th 247, 252, 90 Cal. Rptr. 2d 217 (1999). Following the issuance of an

25

OSC, respondent is entitled to file a return arguing that petitioner’s detention is legal; petitioner

26

may file a responsive traverse. Cal. R. Ct. 4.551(d) & (e) (West 2011). The court may then hold

27

an evidentiary hearing prior to granting or denying the petition. Cal. R. Ct. 4.551(f) (West 2011).

28

California’s Defective Postconviction Process

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As detailed below, the California Supreme Court fails to issue an OSC in the

2

overwhelming majority of habeas proceedings. Consequently, nearly every petitioner is afforded

3

only the limited discovery that California provides outside of the OSC context. Absent an OSC,

4

California petitioners lack the power to issue subpoenas and compel witness testimony. Cal.

5

Penal Code § 1484 (West 2011); Durdines, 76 Cal. App. 4th at 252 (holding that the court lacked

6

power to solicit trial counsel’s declaration before the issuance of a writ or OSC). Thus, the

7

primary mechanism for postconviction discovery is California Penal Code section 1054.9.

8

Section 1054.9 provides that, prior to filing their state habeas petitions, capital petitioners shall

9

have reasonable access to materials they would have been entitled to receive at the time of trial,

10

to the extent that such materials are currently in the possession of the prosecution or law

11

enforcement authorities who were involved in the investigation or prosecution of the case. Cal.

12

Penal Code § 1054.9 (West 2011); In re Steele, 32 Cal. 4th 682, 697, 10 Cal. Rptr. 3d 536 (2004).

13

However, California courts—including the state Supreme Court—have limited the scope of

14

available discovery by means of procedural hurdles that are frequently impossible for petitioners

15

to surmount.

16

Chief among these limitations is the California Supreme Court’s mandate that petitioners

17

are not entitled to receive material that would have been discoverable at trial, but which has

18

never been disclosed, unless they are able to demonstrate a basis to believe that the material

19

exists (or existed at trial). Barnett v. Super. Ct., 50 Cal. 4th 890, 901, 114 Cal. Rptr. 3d 576

20

(2010). In this way, postconviction discovery in California capital cases is determined by fiat of

21

a guessing game. Petitioners can access discoverable material only to the extent that habeas

22

counsel is able to divine sufficient clues to the existence of material that neither their counsel nor

23

they have ever seen, but which they would unquestionably be entitled to access under the

24

discovery rules were the material’s existence known to them.

25

Capital petitioners in California are also hampered in their ability to develop the factual

26

predicate of their claims due to facets of the state’s system that enhance the probability that

27

relevant evidence will be lost or destroyed. The California Supreme Court has held that section

28

7
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1054.9 does not impose a duty on law enforcement or the prosecution to preserve evidence

2

pending the resolution of postconviction proceedings. Steele, 32 Cal. 4th at 695. Moreover, state

3

prosecutors routinely insist that there is no mechanism by which petitioners can obtain a

4

preservation order, regardless of the circumstances. Declaration of Michael Laurence (Laurence

5

Decl.), attached as an Exhibit to this Brief, ¶ 9, Ex. A (In re La Twon Weaver, No. CRN22688,

6

Points and Authorities in Opposition to Motion for Postconviction Discovery at 26 (Sept. 30,

7

2011)). Thus, as the California Supreme Court has acknowledged, “the longer the delay [in

8

bringing a postconviction discovery motion], the greater the likelihood that the postconviction

9

discovery items sought will no longer exist[.]” Catlin v. Super. Ct., 51 Cal. 4th 300, 308, 120

10

Cal. Rptr. 3d 135 (2011). In California, the state’s unparalleled delay in appointment of capital

11

postconviction counsel heightens the twin risks of evidence destruction and witness

12

unavailability. All capital petitioners, including Mr. Jones, face delays of many years between

13

their sentencing and appointment of habeas counsel, as illustrated by the 327 condemned

14

prisoners currently awaiting habeas counsel.

15

petitioner’s postconviction investigation has begun, California’s procedures have already

16

impeded the full and fair development of meritorious claims for relief.

Laurence Decl. ¶ 8.

Thus, even before a

17

California petitioners face additional restrictions to their ability to develop the factual

18

predicate of their claims. California state prosecutors routinely argue—and some lower courts

19

have accepted—that section 1054.9 does not permit petitioners to access material that law

20

enforcement or the prosecution did not possess at time of trial, despite the fact that they currently

21

possess it. This includes both materials that were possessed by others at the time of trial and

22

materials that did not exist until after the petitioner’s conviction. Laurence Decl. ¶ 10, Ex. B (In

23

re Bell, No. CR 133096, Memorandum of Points and Authorities in Opposition to Motion for

24

Post-conviction Discovery at 43 (July 13, 2009) (“Any materials, however relevant to

25

[petitioner’s] trial, subsequently acquired by the prosecution team are not available under section

26

1054.9. This includes information that did not exist at the time of trial. Also, any materials

27

whose relevance only became clear after trial would not be subject to discovery.”); Laurence

28

8
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Case No. CV-09-2158-CJC

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Decl. ¶ 12, Ex. D (In re Kerry Lyn Dalton, No. CR 135002, Amended Statement of Decision re:

2

Motion for Post-Conviction Discovery at 4 (June 28, 2011) (holding that section 1054.9 does not

3

encompass materials that did not exist at the time of trial)).

4

Additionally, California state prosecutors routinely argue that section 1054.9 does not

5

permit petitioners to access favorable material possessed by various government entities, arguing

6

that such entities are not part of the “prosecution team.” Laurence Decl. ¶ 11, Ex. C (People v.

7

Dalton, No. CR 135002, Points and Authorities in Opposition to Motion for Postconviction

8

Discovery at 24–25 (Oct. 27, 2009) (arguing that petitioner is not entitled to access favorable

9

material contained in the mental health records of prosecution witnesses possessed by

10

government agencies such as the county jail and County Mental Health Services).

State

11

prosecutors have also opposed petitioners’ requests for privilege logs that would allow the courts

12

and petitioners to determine whether the prosecution has disclosed all discoverable material to

13

petitioners. Laurence Decl. ¶ 9, Ex. A (In re La Twon Weaver, No. CRN22688, Points and

14

Authorities in Opposition to Motion for Postconviction Discovery at 27 (September 30, 2011)).

15

The effect of the deficiencies in California’s postconviction process is to insulate most

16

meritorious constitutional claims from genuine review. This failing of the state postconviction

17

system includes, but also extends far beyond, Mr. Jones’s case. From the effective date of the

18

AEDPA in April 1996 to the present, the California Supreme Court has denied or dismissed 388

19

of 446 capital habeas petitions, or 87 percent—including Mr. Jones’ petition—without issuing an

20

OSC. Laurence Decl. ¶ 6. In this time frame, it has granted relief in only 13 cases – just over

21

two percent of those filed. Id. Since 2008, it has been exceptionally rare for the state court to

22

issue an OSC concerning any claims other than those brought pursuant to Atkins v. Virginia, 536

23

U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). From 2008-11, the state court adjudicated

24

120 capital habeas petitions, of which it denied 98. or 82 percent, without issuing an OSC.

25

Fourteen of the 18 OSCs it granted, or 78 percent, concern Atkins claims. Laurence Decl. ¶ 7.

26

As detailed in the following sections, the U.S. Constitution and section 2254(d) of the

27

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) obligate this Court to provide a

28

9
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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forum for vindicating federal constitutional rights where, as here, the state habeas court has

2

failed in its obligation to do so. Pinholster did nothing to alter these longstanding constitutional

3

and statutory obligations of the federal courts.

4
5

B.

Pinholster Left Intact the Controlling Law Governing a Habeas Petitioner’s
Entitlement to an Evidentiary Hearing Under Section 2254(d)(2).

6

The Ninth Circuit consistently has held that when a petitioner presents a colorable claim

7

for relief, but the state court denies the claim without a hearing necessary to adjudicate the claim

8

fairly, the denial constitutes an unreasonable determination of the facts under section 2254(d)(2).

9

See, e.g., Hurles v. Ryan, 650 F.3d 1301, 1311 (9th Cir. 2011) (holding post-Pinholster that state

10

court decision was based on an unreasonable determination of the facts because the court

11

“granted no evidentiary hearing or other opportunity for Hurles to develop his claim” of bias);

12

Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005) (holding that state court’s failure to

13

conduct hearing on prosecutorial misconduct claim was an unreasonable determination of the

14

facts); Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003) (holding that state court’s decision

15

denying ineffective assistance of counsel claim without a hearing was unreasonable). Because

16

Pinholster did not address the scope of section 2254(d)(2), it did not alter these well-established

17

Ninth Circuit precedents holding that a state court violates section 2254(d)(2) when it does not

18

“afford a petitioner a full and fair hearing.” Tilcock v. Budge, 538 F.3d 1138, 1143 n.2 (9th Cir.

19

2008) (internal citation omitted); see also Houston v. Schomig, 533 F.3d 1076, 1083 (9th Cir.

20

2008) (“AEDPA allows for an evidentiary hearing when a petitioner (1) alleges facts, which, if

21

proven, would entitle him to relief; and (2) shows that he did not receive a full and fair hearing in

22

the state court.”) (citing 28 U.S.C. § 2254(e)(2)); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.

23

2004) (“If . . . a state court makes evidentiary findings without holding a hearing and giving

24

petitioner an opportunity to present evidence, such findings clearly result in an ‘unreasonable

25

determination’ of the facts.”).

26

These decisions hold that a state-court decision summarily denying claims for relief

27

constitutes an unreasonable determination of the facts under section 2254(d)(2) unless the record

28

10
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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shows the allegations “are entirely without credibility or that the allegations would not justify

2

relief even if proved.” Nunes, 350 F.3d at 1054-55. In Earp, 431 F.3d at 1167, the Ninth Circuit

3

held that the California Supreme Court’s summary denial of a state petition involved “an

4

unreasonable determination of the facts,” within the meaning of section 2254(d)(2) where the

5

petitioner demonstrated his entitlement to a hearing under Townsend v. Sain, 372 U.S. 293, 83 S.

6

Ct. 745, 9 L. Ed. 2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 112

7

S. Ct. 1715, 118 L. Ed. 2d 318 (1992). “If the defendant can establish any one of those

8

[Townsend] circumstances, then the state court’s decision was based on an unreasonable

9

determination of the facts and the federal court can independently review the merits of that

10

decision by conducting an evidentiary hearing.” Earp, 431 F.3d at 1167.4 Given that Mr. Jones

11

has demonstrated his right to an evidentiary hearing under the Townsend factors, his federal

12

habeas petition satisfies section 2254(d)(2).5
C.

13

The California Supreme Court’s Summary Denial of Mr. Jones’s Petition Was
an Unreasonable Application of Relevant Supreme Court Precedent.

14
15

The California Supreme Court’s summary denial was an unreasonable application of U.S.

16

Supreme Court precedent under section 2254(d)(1) for the two reasons set forth below. First, the

17
18
19

4

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.

20
21
22
23
24
25
26
27
28

Townsend, 372 U.S. at 313.
5

Respondent seeks to distinguish the Ninth Circuit’s decisions in Nunes and Earp by
assertion that section 2254(d)(2) does not apply to a “summary denial.” Opp’n 5.
Respondent’s argument, however, ignores the fact that the California Supreme Court issued the
same summary denial in Earp as it did in Mr. Jones’s case. Earp, 431 F.3d at 1164 (“The
California Supreme Court . . . summarily denied his state habeas corpus petition on the merits
without affording him an evidentiary hearing on any of his claims.”).
11
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Case No. CV-09-2158-CJC

1

state court unreasonably applied Carter v. Texas, 177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839

2

(1900), and its progeny, by unreasonably refusing to permit Mr. Jones factual development of his

3

well-pled claims. Second, the state court unreasonably applied the Supreme Court’s precedents

4

which mandate that a habeas petitioner receive one full and fair opportunity to develop his

5

claims. Construing Pinholster to mandate that Mr. Jones also be deprived of this opportunity in

6

federal court would violate due process and the Suspension Clause.

7

1. The California Supreme Court Violated the Well-Established Rule

8

Requiring Factual Development When a Well-Pled Claim Is Presented.

9

Although Mr. Jones presented the California Supreme Court with detailed allegations and

10

supporting exhibits, the court refused to permit him to fully develop the facts in support of his

11

claims. The California Supreme Court’s summary denial was an unreasonable application of the

12

clearly-established rules of Carter v. Texas, McNeal v. Culver, 365 U.S. 109, 81 S. Ct. 413, 5 L.

13

Ed. 2d 445 (1961), and Coleman v. Alabama, 377 U.S. 129, 84 S. Ct. 1152, 12 L. Ed. 2d 190

14

(1964), which hold that a state court violates the Constitution when it dismisses a well-pleaded

15

federal claim without an evidentiary hearing or other opportunities to develop facts in support of

16

the claim.

17

In state court, Mr. Jones presented exhaustive and verified allegations complete with

18

voluminous evidentiary support—which under California law must be accepted as true, People v.

19

Duvall, 9 Cal. 4th 464, 474-75, 37 Cal. Rptr. 2d 259 (1995), in assessing whether petitioner

20

established a prima facie case for relief on each of his claims. As exhaustively detailed in

21

Petitioner’s Motion for an Evidentiary Hearing, ECF No. 59, these allegations, if proved, entitle

22

him to relief and thus an evidentiary hearing is required. The California Supreme Court’s

23

rejection of Mr. Jones’s well-pleaded facts and refusal to permit merited factual development was

24

an unreasonable application of well-established federal law.6 As early as 1900, the United States

25
26
27
28

6

As explained in the Supplemental Brief, California state law guaranteed such fact
development by the issuance of an OSC. See, e.g., People v. Romero, 8 Cal. 4th 728, 737, 35
Cal. Rptr. 2d 270 (1994); Cal. Penal Code § 1476 (West 2011). An OSC transforms the state
habeas process in three ways critical to full, fair, and accurate fact development. First, it allows
the petitioner “an opportunity to present evidence in support of the allegations . . . [and]
12
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Case No. CV-09-2158-CJC

1

Supreme Court established a federal procedural rule, requiring state courts to permit the

2

presentation of factual support for a “distinctly and sufficiently pleaded” federal constitutional

3

violation. Carter, 177 U.S. at 447-49;7 see also Angel v. Bullington, 330 U.S. 183, 188, 67 S. Ct.

4

657, 91 L. Ed. 832 (1947) (noting that states may not avoid obligations to adjudicate

5

constitutional claims that are “plainly and reasonably made”); Davis v. Wechsler, 263 U.S. 22,

6

24-25, 44 S. Ct. 13. 68 L. Ed. 143 (1923) (holding that states may not “place unreasonable

7

obstacles” in the way of persons seeking to vindicate federal rights that are “plainly and

8

reasonably made”). In Coleman, the Court reaffirmed this principle, reversing the Alabama

9

Supreme Court’s denial of a challenge to the racial composition of a grand jury because “the

10

record shows that petitioner was not permitted to offer evidence to support his claim.” 377 U.S.

11

at 133. Similarly, in cases arising on habeas review, the Supreme Court continued to invalidate

12

institute[s] a proceeding in which issues of fact are to be framed and decided.” In re Hochberg,
2 Cal. 3d 870, 876 n.4, 87 Cal. Rptr. 681 (1970) (italics omitted), rejected on other grounds by
In re Fields, 51 Cal. 3d 1063, 1070 n.3, 275 Cal. Rptr. 384 (1990). Second, it creates a cause of
action that requires a reasoned, written resolution under Article VI, section 14 of the California
Constitution. Romero, 8 Cal. 4th at 740. Consonant with this requirement, the court must “do
and perform all other acts and things necessary to a full and fair hearing and determination of
the case.” Cal. Penal Code § 1484 (West 2011). Finally, it confers the power to authorize fact
development through traditional forms of discovery, including the power to issue subpoenas
and compel witness testimony. Cal. Penal Code § 1484 (West 2011); see also People v.
Gonzalez, 51 Cal. 3d 1179, 1256-58, 275 Cal. Rptr. 729 (1990) (discussing state court’s lack of
jurisdiction to order “free-floating” postconviction discovery absent a proceeding pending
before that court) superseded by statue on other grounds as stated in Steele, 32 Cal. 4th at 691;
Bd. of Prison Terms v. Super. Ct., 130 Cal. App. 4th 1212, 1236-42, 31 Cal. Rptr. 3d 70 (2005)
(holding that court cannot order discovery before issuance of an OSC; court’s powers as set
forth in Penal Code section 1484 to hear evidence, subpoena witnesses, and do whatever is
necessary to ensure fairness are not available until issues joined); Durdines v. Superior Court,
76 Cal. App. 4th at 252 (holding that court lacked power before the issuance of a writ or OSC
to solicit a declaration from trial counsel).

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

7

In Carter, the Supreme Court reversed a state appellate court’s affirmance of a murder
conviction where the trial court denied a motion to quash the indictment on the ground that the
grand jury excluded African Americans. The defendant’s motion set forth factual allegations
concerning the exclusion of African-American grand jurors and offered to introduce witnesses
to prove the allegations. The trial court refused to hear any evidence on the issue and overruled
the motion “without investigating whether the allegation was true or false.” 177 U.S. at 448.
In reversing and remanding the case, the Court held: “The necessary conclusion is that the
defendant has been denied a right duly set up and claimed by him under the Constitution and
laws of the United States.” Id. at 449.
13
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Case No. CV-09-2158-CJC

1

state courts’ decisions that were made without meaningful factfinding where constitutional

2

claims were supported by “factual allegations not patently frivolous or false.” Pennsylvania ex

3

rel. Herman v. Claudy, 350 U.S. 116, 118-19, 76 S. Ct. 223, 100 L. Ed. 126 (1956); see also

4

Cash v. Culver, 358 U.S. 633, 638, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959) (finding the allegations

5

of the habeas petition “made it incumbent upon the Florida courts to determine what the true

6

facts were”); McNeal, 365 U.S. at 117 (accord); Reynolds v. Cochran, 365 U.S. 525, 533, 81 S.

7

Ct. 723, 5 L. Ed. 2d 754 (1961) (“The allegations of his petition for habeas corpus indicated, if

8

true, that he had been denied the assistance of counsel he had retained. He is entitled to a

9

hearing to establish the truth of those allegations.”). In Herman, the Supreme Court noted the

10

“sharp dispute as to the facts material to a determination of the constitutional questions involved”

11

and described this as “the very kind of dispute which should be decided only after a hearing.” Id.

12

at 120-21. Because Mr. Jones sufficiently pled his claims, the California Supreme Court’s

13

decision denying him the opportunity to fully factually develop these claims was an

14

unreasonable application of this well-established federal law as determined by the United States

15

Supreme Court.

16

This conclusion fully comports with Supreme Court case law applying provisions of the

17

AEDPA. In (Michael) Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435

18

(2000), the Court reviewed the purposes of the AEDPA and reaffirmed that the statutory scheme

19

may not prevent the vindication of federal constitutional rights when a state court has prevented

20

a petitioner from fully developing the record in state proceedings:

21

For state courts to have their rightful opportunity to adjudicate federal rights, the

22

prisoner must be diligent in developing the record and presenting, if possible, all

23

claims of constitutional error. If the prisoner fails to do so, himself or herself

24

contributing to the absence of a full and fair adjudication in state court, §

25

2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in

26

federal court, unless the statute’s other stringent requirements are met. Federal

27

courts sitting in habeas are not an alternative forum for trying facts and issues

28

14
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Case No. CV-09-2158-CJC

1

which a prisoner made insufficient effort to pursue in state proceedings. Yet

2

comity is not served by saying a prisoner “has failed to develop the factual basis

3

of a claim” where he was unable to develop his claim in state court despite

4

diligent effort.

5

529 U.S. at 437; see also Boumediene v. Bush, 553 U.S. 723, 729, 128 S. Ct. 2229, 171 L. Ed. 2d

6

41 (2008) (observing that deprivation of the opportunity for federal review, after having been

7

denied the same in state court, “effects an unconstitutional suspension of the writ”).

8

When, as here, the state court declines “the first opportunity to review [a] claim and to

9

correct any constitutional violation,” Pinholster, 131 S. Ct. at 1401 (internal quotations and

10

citations omitted), by refusing to institute a proceeding in which issues of fact are framed and

11

decided, federal principles of comity, federalism, and finality “do not require deference,”

12

Winston v. Kelly, 592 F.3d 535, 553 (4th Cir. 2010) (finding deference was not required when the

13

state court had the opportunity to consider “a more complete record, but chose to deny” the

14

request for an evidentiary hearing); Rivera v. Quarterman, 505 F.3d 349, 356-57 (5th Cir. 2007)

15

(ruling that deference was not due where state court dismissal for failing to make a prima facie

16

showing was an unreasonable application of clearly established federal law). On the contrary,

17

the Constitution, the AEDPA, and fairness dictate that a federal court review the state court’s

18

legal determinations de novo because the state court’s procedural tools for developing a factual

19

record were not adequate either to ascertain the truth or resolve the petitioner’s constitutional

20

claims correctly. As the United States Supreme Court succinctly held in Panetti v. Quarterman:

21

[A]fter failing to provide petitioner with this process, notwithstanding counsel’s

22

sustained effort, diligence, and compliances with court orders . . . . our review of

23

petitioner’s underlying incompetency claim is unencumbered by the deference

24

AEDPA normally requires.

25

551 U.S. 930, 948, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007); see also Winston, 592 F.3d at 553;

26

Doody v. Ryan, 649 F.3d 986, 1003 (9th Cir. 2011) (en banc) (“[I]f we succumb to the temptation

27

to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber

28

15
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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stamp, pucker up, and kiss The Great Writ good-bye.”), cert. denied, __ S. Ct. __, 2011 WL

2

3512283 (Oct. 11, 2011); id. at 1024 (Kozinski, C.J. concurring) (“deference is neither a

3

blindfold nor a bandana”); id. at 1027 (“Comity doesn’t mean being comatose.”).8

4

Just as the deficiencies in a Texas competency proceeding merited scrutiny in Panetti,

5

California’s idiosyncratic system for resolving post-conviction petitions for relief generally, and

6

the state’s review and consequent denial of the state habeas claims in Mr. Jones’s case in

7

particular, compels the conclusion that section 2254(d) does not bar federal habeas relief. This

8

Court is not reviewing a state-court decision that found Mr. Jones failed to prove his claims after

9

being given a full and fair opportunity to do so. Rather, this Court is reviewing the state court’s

10

erroneously premature conclusion that, taking all of Mr. Jones’s allegations as true and credible,

11

he would not be entitled to relief even if permitted the opportunity to prove his allegations

12

through further fact development, including an evidentiary hearing.9 Thus, the relevant question

13

is not whether the state court unreasonably denied relief, but whether it unreasonably denied him

14

the benefit of a full and fair fact-finding, including discovery and an evidentiary hearing, in light

15

of controlling law. As set forth in Section IV.A, because the California Supreme Court failed to

16
17
18
19
20
21
22
23
24
25
26
27
28

8

Respondent’s sole response to this argument is that “Michael Williams was concerned
with § 2254(d)(2) . . . . [and] [n]othing in Michael Williams changes the fact that the §
2254(e)(2) question is secondary to the § 2254(d)(1) question, which is the threshold inquiry.”
Opp’n 3. Respondent’s assertion, however, is contradicted by the Supreme Court’s reliance in
Panetti on the due diligence principles articulated in (Michael) Williams’s holding. Panetti,
551 U.S. at 948 (holding section 2254(d) did not bar relief when the state’s determination was
made “after failing to provide petitioner with this process, notwithstanding counsel’s sustained
effort, diligence, and compliance with court orders”).
9

In California, the 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 People v. Pacini, 120 Cal.
App. 3d 877, 884, 174 Cal. Rptr. 820 (1981) (affirming that the petition is “preliminary in
nature”), disapproved on other grounds by People v. Lara, 48 Cal. 4th 216, 228 n.19, 106 Cal.
Rptr. 3d 208 (2010). Under California law, upon receipt of a petition, the court must determine
whether it is “sufficient on its face” (i.e., it states facts that, if true, would enable petitioner to
prevail). Romero, 8 Cal. 4th at 737. In making this initial assessment, the court not only must
assume that all factual allegations and incorporated information from appended documents are
true, id., but also that all of the allegations and evidence incorporated into them are credible, In
re Serrano, 10 Cal. 4th 447, 456, 41 Cal. Rptr. 695 (1995).
16
Petitioner’s Supplemental Reply 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

issue Mr. Jones an OSC, it deprived him of the meaningful, necessary tools for factual

2

development.

3

2. The Suspension Clause Guarantees a Habeas Petitioner to One Full and

4

Fair Opportunity to Demonstrate the Unconstitutionality of His Detention.

5

The Suspension Clause of the U.S. Constitution and section 2254(d) of the AEDPA

6

together obligate this Court to provide Mr. Jones with what the California Supreme Court denied

7

him: one meaningful opportunity to vindicate his federal constitutional claims.

8

a. The Requirements of the Suspension Clause

9

The Suspension Clause provides that the “Privilege of the Writ of Habeas Corpus shall

10

not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require

11

it.” U.S. Const., Art. I, § 9, cl. 2. The Supreme Court interprets this provision to guarantee a

12

prisoner in postconviction proceedings one adequate and effective opportunity to demonstrate the

13

illegality of his detention, including a “full and fair opportunity to develop the factual predicate

14

of his claims.” Boumediene, 553 U.S. at 779, 790; Felker v. Turpin, 518 U.S. 651, 663-64, 116

15

S. Ct. 2333, 135 L. Ed. 2d 827 (1996) (assuming that the Suspension Clause protects the writ of

16

habeas corpus in its modern form).

17

The Suspension Clause thus permits restriction of federal habeas review only insofar as

18

an alternative collateral review framework affords a full and fair inquiry, including fact-

19

development of claims. See Swain v. Pressley, 430 U.S. 372, 381, 97 S. Ct. 1224, 51 L. Ed. 2d

20

411 (1977) (“[T]he substitution of a collateral remedy which is neither inadequate nor ineffective

21

to test the legality of a person’s detention does not constitute a suspension of the writ of habeas

22

corpus.”). Swain upheld a statute restricting federal habeas review of petitions originating from

23

the District of Columbia. Id. at 375-76. Because the statute maintained the federal courts’

24

authority to review habeas petitions when the local postconviction remedy was “inadequate or

25

ineffective to test the legality” of a petitioner’s detention, it avoided the serious Suspension

26

Clause questions that would otherwise have been presented. Id. at 381 (emphasis added); see

27

also Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998) (holding that a Suspension Clause

28

17
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

1

violation occurs where a restriction on habeas renders the writ “inadequate or ineffective” to test

2

the legality of detention).

3

constitutionality of a collateral challenge mechanism for federal prisoners, 28 U.S.C. section

4

2255, which restricted prisoners’ access to federal habeas corpus under section 2254 unless the

5

section 2255 remedy was “inadequate or ineffective” to test the legality of their detention.

6

United States v. Hayman, 342 U.S. 205, 223, 72 S. Ct. 263, 96 L. Ed. 2d 232 (1952). The Court

7

found it unnecessary to address whether the writ had been suspended because this mechanism

8

sustained petitioners’ entitlement to full and fair development and presentation of their

9

postconviction claims. Id. at 213-14, 223.

The Court also relied on the same reasoning to uphold the

b. Reconciliation of the Suspension Clause and the AEDPA

10
11

The Suspension Clause’s requirement of a “full and fair opportunity” to present

12

constitutional claims is fully reconcilable with the AEDPA’s modification of federal habeas

13

jurisdiction over state prisoners’ claims following state postconviction review. Section 2254(d)

14

presupposes that state postconviction courts will assume primary responsibility to adjudicate

15

constitutional violations suffered by state prisoners. Pinholster, 131 S. Ct. at 1401. When—and

16

only when—state postconviction courts provide state prisoners with one “full and fair

17

opportunity” to litigate their claims, section 2254(d) requires federal courts to defer to the state

18

courts’ decisions by limiting federal relitigation of prisoners’ already-adjudicated claims. This

19

promotes comity, finality, and federalism. Id. However, “comity is not served by saying a

20

prisoner has failed to develop the factual basis of a claim where he was unable to develop his

21

claim in state court despite diligent effort.” (Michael) Williams, 529 U.S. at 437 (internal

22

citations and quotations omitted). Conversely, affording a prisoner the benefit of adequate state

23

fact-finding procedures is a necessary prerequisite to limiting subsequent federal review to the

24

underlying record.10

25
26
27
28

Boumediene, 553 U.S. at 790-91; Winston, 592 F.3d at 554 (holding

10

Federal habeas courts may not defer to state court practices that have the object or effect
of frustrating enforcement of constitutional rights. See, e.g., Gade v. Nat’l Solid Wastes Mgmt.
Ass’n, 505 U.S. 88, 105-06, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) (federal courts must
consider the effect on state law of a federal scheme of regulation, as well as the state law’s
purported purposes); Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 68 L. Ed. 143 (1923);
18
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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AEDPA deference not required when the state court had the opportunity to consider a more

2

complete record, but denied petitioner’s request for an evidentiary hearing).

3

Thus, section 2254(d) is consistent with the Suspension Clause, because—similarly to the

4

statutes upheld in Swain and Hayman—it affirms the federal courts’ power to review petitioners’

5

claims de novo and grant habeas relief when the state courts’ legal or factual determinations

6

inadequately protect petitioners’ constitutional rights, specifically including the state court’s

7

provision of inadequate postconviction process. See Panetti, 551 U.S. at 954; Dist. Atty’s Office

8

v. Osborne, ___ U.S. ___, 129 S. Ct. 2308, 2319-20, 174 L. Ed. 2d 38 (2009). For instance,

9

section 2254(d)(2) preserves the federal courts’ authority to grant relief when a state court

10

summarily denies habeas claims, without affording adequate fact-development (including an

11

evidentiary hearing), despite a prisoner’s presentation of a prima facie case for relief. Nunes,

12

350 F.3d at 1055; see also Wiggins v. Smith, 539 U.S. 510, 528, 123 S. Ct. 2527, 156 L. Ed. 2d

13

471 (2003); Taylor v. Maddox, 366 F.3d 992, 1000-01 (9th Cir. 2004); Schriro v. Landrigan, 550

14

U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007).

15

Consistent with the Suspension Clause and section 2254(d), the right of habeas corpus

16

requires that some forum afford full and fair fact development of claims, absent fault on the part

17

of the prisoner or his counsel. See Boumediene, 553 U.S. at 791 (“§ 2254 ‘does not equate

18

prisoners who exercise diligence in pursuing their claims with those who do not’”) (quoting

19

Michael Williams, 529 U.S. at 436-37). Precluding federal review in the absence of such full and

20

fair fact development “effect[s] an unconstitutional suspension of the writ.” Cf. id. at 792.

21
22
23
24
25
26
27
28

Stop the Beach Renourishment v. Fla. Dept. of Envtl. Protection, ___ U.S. ___, 130 S. Ct. 2592,
2608, 177 L. Ed. 2d 184 (2010) (federal courts must ensure that there is no evasion of federal
authority to review federal questions by insisting that a non-federal ground of decision has “fair
support”). Thus, where “rules” (e.g., those governing summary review) operate to provide
more gloss than depth, federal habeas courts must be vigilant in ensuring that the Constitution
remains the supreme law of the land. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 691 n.11, 95
S. Ct. 1881, 44 L. Ed. 2d 508 (1975) (federal courts may even examine a state court
interpretation of state law if it appears to be an obvious subterfuge to evade consideration of a
federal issue).
19
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

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c. California’s Postconviction Process Presents Federal Constitutional

2

Defects Because It Does Not Allow Most Petitioners, Including Mr.

3

Jones, a “Full and Fair Opportunity” To Develop Their Habeas

4

Claims.

5

Mr. Jones placed “specific allegations” before the state court that “show[ed] reason to

6

believe” that, were the underlying facts fully developed, he could demonstrate serious

7

constitutional violations that would establish the illegality of his confinement and his entitlement

8

to relief. Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969).

9

However, as set forth in Section IV.A, the state court failed in its duty “to provide the necessary

10

facilities and procedures for an adequate inquiry.” Id. Once this Court directs section 2254(d)

11

briefing in this case, Mr. Jones will set forth in greater detail the inadequacies of the state court

12

process that were briefly described in that section.11

13

Each claim in Mr. Jones’s state petition stated a prima facie case for relief, entitling him

14

to an OSC. The OSC would, in turn, have given him access to the additional discovery

15

procedures that were previously described. The OSC would also potentially have allowed him a

16

state evidentiary hearing to establish the credibility of his witnesses. See Serrano, 10 Cal. 4th at

17

456. Instead, as with nearly all state prisoners, Mr. Jones was denied an OSC with respect to any

18

of his claims. The state court’s summary denial prejudiced Mr. Jones generally by denying him a

19

full and fair opportunity to develop the factual predicates to his challenge of his confinement

20

under sentence of death, despite his diligent efforts to do so. It also prejudiced him specifically

21

by denying him the opportunity to preserve the testimony of his since-deceased witnesses.12 Cf.

22

Riel, 2011 U.S. Dist. LEXIS 121661, *3-5 (finding good cause, post-Pinholster, to allow

23

California condemned prisoner to depose material witness who was elderly and sick, for

24
25
26
27
28

11

Given that an assessment of the defects in the state process involve a factual inquiry, an
evidentiary hearing will be necessary if respondent disputes these facts.
12

The state court rejected Mr. Jones’s request for leave to notice the depositions of
declarant witnesses in order to preserve their testimony for future evidentiary hearings.
Laurence Decl. ¶ 3. Since the filing of Mr. Jones’s state petition, six declarant witnesses have
died, including four family members, a family friend, and one juror. Laurence Decl. ¶ 4.
20
Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
Pinholster on the Court’s Power to Grant an Evidentiary Hearing

Case No. CV-09-2158-CJC

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preservation of witness testimony, in advance of a section 2254(d) determination). This state

2

habeas process he received was so defective that it does not independently satisfy the demands of

3

the Suspension Clause as an “adequate substitute” for federal review.13 Cf. INS v. St. Cyr, 533

4

U.S. 289, 305, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001), partially superseded by statute on

5

other grounds. Accordingly, a “serious Suspension Clause issue would be presented” if section

6

2254(d) was construed to preclude Mr. Jones’s full and fair presentation of his habeas claims,

7

following necessary fact development, in federal court. Nor does the state court’s decision bar

8

the granting of relief under section 2254(d)(1), because it was an unreasonable application of

9

controlling federal law: “[B]ased on the existing (non)record it was impossible for [the state

10
11
12
13
13

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Supreme Court has not adjudicated any Suspension Clause (or separation of
powers) challenge to section 2254(d), let alone under circumstances where, as here, the state
postconviction review mechanism is constitutionally defective. In cases which have presented
no allegations or evidence of defective state court process—and have often featured briefing
whose inadequacy the courts have explicitly noted—the lower federal courts have concluded
that challenged aspects of section 2254(d)(1) do not violate the Suspension Clause because the
section “simply modifies the prerequisites for habeas relief.” Crater v. Galaza, 491 F.3d 1119,
1125-26 & n. 6 (9th Cir. 2007) (also noting that “[t]he brevity of [petitioner’s] argument causes
us some confusion as to the precise premise for his Suspension Clause claim”); see also Green
v. French, 143 F.3d 865, 875-76 (4th Cir. 1998), partially overruled on other grounds,
(observing that “[Petitioner] does not, however, articulate why the source of law limitation of
section 2254(d)(1) violates the Suspension Clause, nor does he cite to any authority defining
the contours of the Suspension Clause”); Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996) (en
banc), rev’d on other grounds, 521 U.S. 320 (1997) (“Almost as an afterthought, [petitioner] …
asserts that any alteration in the scope of collateral review after a prisoner has filed a petition
under § 2254 violates [the Suspension Clause] … [Petitioner] does not cite any authority for
this proposition, and we think the contention feckless.”) (emphasis in original); Evans v.
Thomas, 518 F.3d 1, 11-12 (1st Cir. 2008); Sanders v. Curtin, No. 2:08-CV-14448, 2011 U.S.
Dist. LEXIS 49094, *59-60 (E.D. Mich. May 9, 2011). However, none of these cases have
considered whether section 2254(d)(1) suspends the writ vis-à-vis prisoners who, due to a
systemically defective state court process, are denied a full and fair adjudication of their claims
in any forum. In Felker v. Turpin, the Supreme Court held only that section 2254(b)’s restraint
on second and successive petitions did not suspend the writ. 518 U.S. at 663-64. Felker’s
upholding of AEDPA’s restriction on multiple habeas petitions is wholly consistent with Mr.
Jones’s present request for one full and fair opportunity to present his claims.
21
Petitioner’s Supplemental Reply 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

court] to reasonably adjudicate Petitioner’s claim.” Ballinger, 2011 WL 4905583, *2; see also

2

Earp, 431 F.3d at 1167.14

3

d. Because Mr. Jones Was Denied His Full and Fair Opportunity to

4

Demonstrate the Unconstitutionality of His Detention in State Court,

5

to Deny His Federal Habeas Petition Without an Evidentiary Hearing

6

Would Violate the Suspension Clause.

7

Consistent with Pinholster,15 Mr. Jones should be granted a federal evidentiary hearing

8

and other fact development procedures to uncover new evidence that may support his allegations

9

or lead to the development of additional claims or subclaims. See 28 U.S.C. § 2254(e)(2);

10

Pinholster, 131 S. Ct. at 1401 n. 10 (majority opinion), 1412 (Breyer, J., concurring in part); see

11

also Ballinger, 2011 WL 4905583, *3 (directing federal evidentiary hearing post-Pinholster

12

where petitioner was denied any state court “opportunity to develop a record to support his

13

claim.”).

14

The alternative—to construe section 2254(d)(1) to deny federal fact-development to

15

petitioners who were also denied state fact-development—would “effect an unconstitutional

16

suspension of the writ” of habeas corpus as to Mr. Jones and other similarly-situated petitioners.

17

It would unprecedentedly create a demographic of prisoners who are denied any adequate,

18

effective forum to develop the facts of their claims fully and to test the legality of their detention.

19

Boumediene, 553 U.S. at 791-92; see also Swain, 430 U.S. at 376; Hayman, 342 U.S. at 209,

20

219-21, 223. It is well-established that an unconstitutional statutory interpretation should be

21

avoided where a reasonable alternative construction is available. Swain, 430 U.S. at 378; United

22
23
24
25
26
27
28

14

As previously set forth, Pinholster does not alter the Ninth Circuit precedent construing
§ 2254(d)(2), and it does not bar consideration of evidence from a federal evidentiary hearing
authorized under § 2254(e)(2).
15

Pinholster did not specifically evaluate the adequacy of the California postconviction
process. It is particularly appropriate for this Court to address the state process’s inadequacies,
because the Supreme Court’s practice is to defer to the views of local federal courts “skilled in
the law of particular states” on such issues. See Bishop v. Wood, 426 U.S. 341, 346 n. 10
(1976), 96 S. Ct. 2074, 48 L. Ed. 2d 684 (collecting cases); Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 16, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004).
22
Petitioner’s Supplemental Reply 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

States v. Rumely, 345 U.S. 41, 45, 73 S. Ct. 543, 97 L. Ed. 770 (1953); Richmond Screw Anchor.

2

v. United States, 275 U.S. 331, 346, 48 S. Ct. 194, 72 L. Ed. 303 (1928). Thus, by providing Mr.

3

Jones with his constitutionally-required forum—i.e., finding section 2254(d) satisfied,

4

conducting an evidentiary hearing, and reviewing his claims de novo—this Court avoids

5

violating the Suspension Clause.

6

V. CONCLUSION

7

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

8

procedures, including an evidentiary hearing, de novo review of each constitutional violation

9

presented in his Petition, and to relief. Should the Court determine that the parties should

10

address the application of section 2254(d) to each of the specific claims in the evidentiary

11

hearing motion at this stage of the proceedings, Mr. Jones requests permission to seek an

12

amendment of the Criminal Justice Act budget governing this phase of the proceedings and

13

sufficient time to complete the briefing.

14
15
16
17
18
19

Dated: October 28, 2011

Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER
By: /s/ Michael Laurence
MICHAEL LAURENCE
Attorneys for Petitioner
Ernest Dewayne Jones

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25
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Petitioner’s Supplemental Reply Brief on the Effect of Cullen v.
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Case No. CV-09-2158-CJC

6

Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
Bethany Lobo (Bar No. 248109)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
[e-mail]

7

Attorneys for Petitioner Ernest Dewayne Jones

1
2
3
4
5

8

UNITED STATES DISTRICT COURT

9
10
11
12
13
14
15
16

FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC
CAPITAL CASE

Petitioner,
v.
MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

17
18
19
20
21
22

EXHIBIT IN SUPPORT PETITIONER’S SUPPLEMENTAL REPLY BRIEF ON THE
EFFECT OF CULLEN V. PINHOLSTER ON THE COURT’S POWER TO GRANT AN
EVIDENTIARY HEARING
DECLARATION OF MICHAEL LAURENCE

23
24
25
26
27
28

Exhibit
Page 24

1
2

TAB
1

3

A

4

B

5
6
7
8

C
D

EXHIBIT
Declaration of Michael Laurence
Points and Authorities to Motion for Post-Conviction Discovery
[Penal Code § 1054.9], No. CRN22688 (San Diego Super. Ct. Nov. 1, 2011)
Memorandum of Points and Authorities in Opposition to Motion for PostConviction Discovery (Pen. Defendant. Code, § 1054.9), No. CR133096
(San Diego Super. Ct. July 13, 2009)
Points and Authorities In Opposition to Motion for Post-Conviction Discovery
[Penal Code § 1054.9], No. CR135002 (San Diego Super. Ct. Oct. 27, 2009)
Amended Statement of Decision on Motion for Post-Conviction Discovery
(PC 1054.9), No. CR135002 (San Diego Super. Ct. June 28, 2011)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i

Exhibit
Page 25

DECLARATION OF MICHAEL LAURENCE

1
2

I, MICHAEL LAURENCE, declare as follows:

3

1.

I am an attorney at law ad mitted to practice by the State of California and

4

before this Court. I am the Executive Director of the Habeas Corpus Resource Center

5

(HCRC).

6

2.

On October 20, 2000, the California Supreme Court appointed the HCRC

7

to represent Ernest Jones in habeas corp us proceedings stemming from his convictions

8

and judgment of death. On April 14,

9

represent Mr. Jones in his federal hab eas corpus proceedings. I was designated lead

10
11

2009, this Court appointed the HCRC to

counsel in both proceedings.
3.

Mr. Jones filed a petition for writ of

habeas corpus in the California

12

Supreme Court on October 21, 2002. While Mr. Jones’s petition was still pending, on

13

October 16, 2007, Mr. Jone s submitted Supplemental Allegations in Support of

14

Petition for Writ of Habeas Corpus in w hich he sought leave to notice the depositions

15

of his declarant witnesses in order to pres erve their testim ony for fut ure evidentiary

16

hearings. Court staff at the California Supreme Court informed counsel orally that Mr.

17

Jones would have to file a motion requesting leave to file the supplement to the 2002

18

petition, and that the supplemental allegations could not contain allegations concerning

19

the need for appropriate subpoena authority to preserve witness testimony. According

20

to the fili ng clerk, the research attorneys denied Mr. Jones’s counse l's request that

21

these new filing directives be issued in

22

directions, on October 31, 2007, Mr. Jones submitted revised Allegations in Support of

23

Petition for Writ of Habeas Corpus, without the request for subpoena authority.

24

4.

writing. In accordance wit

h the Court’s

Since the filing of Mr. Jones’s petition in state court in 2002, six of his

25

declarant witnesses have died, including four family members, a family friend, and one

26

juror. In addition, three witnesses that

27

from, but m ost likely would have subpoe naed had a hear ing been ordered or a

28

deposition permitted, also have died.

Mr. Jones was unable to obtai n statements

DECLARATION OF MICHAEL LAURENCE IN SUPPORT OF PETITIONER’S
SUPPLEMENTAL REPLY BRIEF
1

Exhibit
Page 26

1

5.

Pursuant to its legislative mandate

as a resource center for California

2

capital postconviction attorneys (Cal. G ov’t Code § 68661), the HCRC collects and

3

analyzes information concerning the Califor nia Supreme Court’s disposition of state

4

habeas petitions. The following three paragr aphs contain portions of it s information-

5

gathering function.

6

6.

From April 24, 1996—the effective date of the Antiterrorism

and

7

Effective Death Penalty Act of 1996—to the present, the California Supreme Court has

8

adjudicated 446 capital habeas petitions. It

9

petitions, or 87 percent, without issuing an or der to show cause.

10
11

has denied or dism issed 388 of those
It has granted 13

petitions, or 2.9 percent of those filed.
7.

From January 1, 2008 to the presen t, the Californi a Supreme Court has

12

adjudicated 120 capital habeas petitions. It

13

petitions, or 82 percent, without issuing an order to show cause. It has issued orders to

14

show cause in 18 cases, of which 14, or 78 percent, concern claims brought pursuant to

15

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).

16
17
18

8.

has denied or di smissed 98 of those

California currently has 327 conde

mned prisoners who are awaiting

appointment of postconviction counsel.
9.

Attached to this declaration as E xhibit A are relevant port ions of the

19

District Attorney’s Oppositi on to Motion for Postconvicti on Discovery filed in the

20

Superior Court of Califor nia on Septem ber 30, 2011 in In re La Twon Weaver , No.

21

CRN22688.

22

10.

Attached to this declaration as E xhibit B are relevant porti ons of t he

23

District Attorney’s Mem orandum of Poin ts and Authorities in Opposition to Motion

24

for Post-Conviction Discovery filed in t he Superior Court of California on Jul y 13,

25

2009 in In re Bell, No. CR133096.

26

11.

Attached to this declaration as E xhibit C are relevant porti ons of t he

27

District Attorney’s Mem orandum of Poin ts and Authorities in Opposition to Motion

28

for Post-Conviction Discovery filed in the Superior Court of California on October 27,
DECLARATION OF MICHAEL LAURENCE IN SUPPORT OF PETITIONER’S
SUPPLEMENTAL REPLY BRIEF
2

Exhibit
Page 27

1
2

2009 in In re Dalton, No. CR135002.
12.

Attached to this declaration as E xhibit D are relevant port ions of the

3

California Superior Court’s Am

4

Postconviction Discovery filed on June 28, 2011 in In re Dalton, No. CR135002.

5

ended Statement of D

ecision on Motion for

I declare under penalty of perjury under t he laws of the United S tates and

6

the State of California that the foregoing is

7

true and correct.

executed on October 28, 2011.

8
9
10

/s/ Michael Laurence
MICHAEL LAURENCE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DECLARATION OF MICHAEL LAURENCE IN SUPPORT OF PETITIONER’S
SUPPLEMENTAL REPLY BRIEF
3

Exhibit
Page 28

This declaration is

1
2
3
4
5
6
7
8

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

9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11

ERNEST DEWAYNE JONES,

12

Petitioner,

13

Case No. CV-09-2158-CJC

v.

CAPITAL CASE

14
15
16

MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

17
18
19
20
21
22

EXHIBIT A TO THE DECLARATION OF MICHAEL LAURENCE
Points and Authorities to Motion for Post-Conviction Discovery [Penal Code § 1054.9],
No. CRN22688 (San Diego Super. Ct. Nov. 1, 2011)

23
24
25
26
27
28

Exhibit
Page 29

·
0

Q
1
2
3
4

5

,

'

BONNIE M. DUMANIS
District Attorney
KATHRYN GAYLE, SBN 125517
Deputy District Attorney .
330 West Broadway, Suite 860
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
Email: [e-mail]

6

7

Attorneys for Plaintiff/Respondent

8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

.9

FOR THE COUNTY OF SAN DIEGO

10

CENTRAL DIVISION

11
12

Inre

DBATH PENALTY CASE

13
14

LA TWON WEAVER,

Cal. Supreme Court Case No. S033149
Superior Court Case No. CRN22688

On Habeas Corpus.

15
Date: November 1,2011
Time: 9:00 a.m.
Dept: S5

16

17
18
19

POINTS AND AUTHORITIES IN OPPOSITION

20

TO MOTION FOR POST-CONVICTION DISCOVERY

21

[PENAL CODE §1054.9]

22
23
24
25
26
27
28

/

29

Exhibit
Page 30

o

o
1

true name and location were ascertained by the prosecution and its investigating" agencies."

2

(Proposed Order, p. 12, Lns. 8-15.) Because Gillies was never an intended witness, the People

3

were not required to provide discovery of her statements, and are not required to disclose any of

4

the other requested information. Nor are the People required to conduct an investigation for

5

Weaver.

6

The People provided Weaver with a report detailing statements made by Karim Taylor in

7

infonnal post-conviction discovery. Weaver now complains, "The prosecution did not disclose

8

this report to trial counsel . . .. " (Ps & As p. 45, In. 22.) Weaver also complains that the post-

9

conviction discovery does not include information about "how Ms. Taylor was identified or

10

located." (ps & As p. 45, Ins. 25-26.) Karim Taylor was not named on any of the prosecution'S

11

three witness lists. The prosecution never intended to call her as a witness, and she did not

12

testify at trial. Nevertheless, Weaver now asks the court to order the People to provide "[a]ny

13

infonnation concerning Ms. Taylor's true name and other identifying infonnation, including but

14

not limited to her date of birt~ her whereabouts between May 6, 1992, and the date of

15

sentencing, and how and when her true name and location were ascertained by the prosecution

16

and its investigating agencies." (Proposed Order, p. 12, Ins. 20-25.) Because Taylor was never

17

an intended witness, the People were not required to provide discovery of her statements, and

18

are not required to disclose any of the other requested information.

19

Weaver theorizes that Summersville, Gillies, and Taylor are liars and may have been

20

involved in his crimes more than they admit. 10 Weaver argues that if this is the case, his

21

responsibility for the crimes might be mitigated: "Each witness ... is relevant to the question of

22

petitioner's level of culpability (and] the existence of mitigating circumstances." (ps & As

23

p. 50, Ins. 3-6.)

24
25
26

27
28
29

10 Weaver claims, "Except for the fact that the three witnesses [Summersville, Gillies, and
Taylor] agree that they met at the mall on May 6, their versions of the events of the day are
substantially in conflict. The inconsistencies in their statements raise at least two reasonable
inferences: 1) Byron Summersville, Jenean Gillies and/or Karim Taylor lied to law enforcement
and to the District Attorney's Office about their knowledge of and involvement in the crimes;
and 2) these falsehoods were known or reasonably should have been known to the prosecution."
(ps & As p. 50, Ins. 8-14.)

20
Points & Authorities in Opposition to Motion for Post-Conviction Discovery

Exhibit
Page 31

o

o
1

withheld materials relating to CRN2519S, and requests that the court examine the withheld

2

materials in camera to detennine if they should be turned over. (ps & As p. 51, Ins. 10-20.)
Weaver's discovery rights before and during trial were protected by an impartial tribunal.

3
4

His attempt to use 1054.9 to gain court supervision of his desired investigation into whether the

5

prosecution properly fulfilled its discovery obligations at trial is an abuse of discovery rights

6

granted by the statute, and violates the separation of powers doctrine.

7

VI

8

WEA VER'S NUMEROUS IRREGULAR DEMANDS
SHOULD BE SUMMARILY DENIED

9
10

A. The Prosecution Has No Duty to Preserve Evidence

11

Barnett reiterated the point made in Steele that section 1054.9 "imposes no preservation

12

duties that do not othetwise exist." (Barnett, supra, at p. 901, citing Steele, supra, at p. 695.)

13

The court should deny Weaver's request for an order requiring the prosecution to preserve

14

evidence. (Proposed Order, p. 3, Ins. 17-20.)

15

B. The Prosecution Is Not Obligated to Describe the Circumstances of Any Loss of
Evidence or Failure to Preserve Evidence

16
17

No statute or constitutional provision requires the prosecution to disclose "'infonnation

18

about the date and circumstances of [the] disappearance or destruction" of various items of

19

evidence. Weaver's request for an order requiring the prosecution to do

20

(Ps & As p. 14, Ins. 3-4.)

21

~o

should be denied.

C. Weaver's Requests for "Certification" Should Be Denied

22

Weaver makes numerous requests that the court order the prosecution to "certify" that all

23

requested items within certain categories of evidence have been provided. "Certification" of

24

compliance with a court order is not required by any statute or constitutional provision. The

25

trial court did not require any statement of compliance with its orders by the prosecution, much

26

less any "certification." The prosecution is presumed to have complied with the court's orders,

27

absent evidence to the contrary. (Evid. Code, § 664.)

28

/II

29

/II

26
Points & Authorities in Opposition to Motion for Post-Conviction Di~covery
Exhibit
Page 32

o

o
1
2

3

D. The Demand for an "On The Record" Statement By the Prosecution That Certain
Items of Evidence Do Not Exist Should Be Denied
Weaver's discovery rights were adjudicated in motion hearings which resulted in court

4

orders granting or denying his discovery requests. The prosecution is presumed to have

5

complied with court orders. No statute or constitutional provision requires the prosecution to

6

"state on the record, that the requisite inquiry has been made and that the items do not exist. H

7

CPs &As p. 14, Ins. 1-2.)

8

9
10

E. Weaver's Request to Compare, Identify, and Provide "Most Legible Copies" of
Documents Should Be Denied
Weaver requests the court order the prosecution to "certify" that "based upon a search of

11

its files and its inquiry of the San Diego Sheriffs Department, counsel for petitioner have

12

received the most legible and complete copies of these items that are available." (proposed

13

Order, p. 4, Ins. 8-11.) No statute Qr constitutional provision requires the prosecution to exercise

14

its judgment for the benefit of a defendant on a matter which is completely subjective.

15
16

F. Weaver's Request for a Privilege Log Should Be Denied
Weaver claims,

'~[a]t

a minimum, the District Attorney must provide a basis for its claim

17

of privilege in response to requests for specific discoverable documents ... ;" (ps & As p. 17,

18

Ins. 2-3.) Weaver requests the court "require the District Attorney to provide the basis for any

19

act of non-disclosure regarding items it possesses that are responsive to petitioner's previous and

20

on-going requests"

21

would be served by requiring the District Attorney to produce a privilege log of all items

22

currently withheld." (ps & As p. 16, Ins. 22-24.) No statute, constitutional provision or case

23

law authority requires the prosecution to prepare a privilege log docwnenting acts taken to fulfill

24

criminal discovery obligations.

25

26
27

cPs· & As p. 17, Ins. 6-7) and states '~he interests of efficiency and fairness

G. Weaver's Request for Access to the Entire District Attorney's File Should Be
Denied
Weaver's counsel states: "Since current counsel have no way of determining fully which

28

of the documents that were, or should have been, provided at trial are now missing, we request

29

access to the District Attorney's entire file." (Decl. p. 14, Ins. 1-3.) This request is particularly

27
Points & Authorities in Opposition to Motion for Post-Conviction Discoverv

Exhibit
Page 33

1
2
3
4
5
6
7
8

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

9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11

ERNEST DEWAYNE JONES,

12

Petitioner,

13

Case No. CV-09-2158-CJC

v.

CAPITAL CASE

14
15
16

MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

17
18
19
20
21
22

EXHIBIT B TO THE DECLARATION OF MICHAEL LAURENCE
Memorandum of Points and Authorities in Opposition to Motion for Post-Conviction
Discovery (Pen. Defendant. Code, § 1054.9), No. CR133096
(San Diego Super. Ct. July 13, 2009)

23
24
25
26
27
28

Exhibit
Page 34

1

2

3
4

5
6

7

Bonnie M. Dumanis
District Attorney
James Pitts (SBN 106191)
Deputy District Attorney
of lustice
Dtego
330 West Broadway, Suite 860
San Diego,
92101
[phone] telephone
facsimile
(619) 51
[e-mail]

JUL 13 2009
By: C.VEN. Deputy

Superior Court of the State of California
County of San Diego, Central Division

9

NO. CR133096
DA P14499

The People of the State of California,
Plaintiff,

11

v.

12
13

t;U!1'k of !he sU!lelior Court

Attorneys for Plaintiff

8

10

F' lTHUNBERG 0
E
STEPHEN

Steven M. Bell,
Defendant.

14

Memorandum of Points and
Authorities in Opposition to Motion
for Post-conviction Discovery (Pen.
Code, § 1054.9)

15
16

Statement of Issues
18
19
20

Steven M. Bell-who was convicted of

murder with

circumstances

and sentenced to death in 1994, and has filed a petition for habeas corpus-seeks numerous
of post-conviction

Cf'i"1.'l:TP'CU

under

Code section 1054.9. The

Attorney

objects to each and every item of discovery requested by Bell.

23
24

Statement of the Case
On August

1992, the District Attorney filed an Information in case number

25

CR133096 charging Bell in count one with the murder of l1-year-old John Joseph Anderson. l

26

The information

27

engaged in the commission or attempted commission

29

two special circumstances;2 that Ben committed the murder while
a robbery and he committed the murder

1 Penal

Code section 187, subdivision (a).
2 Pursuant to
section 190.2, subdivision(a)(17).
1
Memorandum of Points and Al1rr.ont,,,,, in Opposition to Motion for Post-conviction Discovery (Pen. Code, § 1054.9)

Exhibit
Page 35

1

second compact disc containing discovery

2

559-10 17. By

time

the

the

Attorney's Office will deliver to Bell compact discs and DVDs containing all

3

photographs, audio

4

Thus, by the

video from this case.
of

hearing, the District Attorney's

5

Category 1

6

discovery had been lost since the trial.

7

to Ben without

will have provided all

Ben has not

that he specify which

of the original

Category 2 that there are materials the prosecution should

8

have provided at

9

court actually issued at that time. He has not alleged

of trial because they came within the scope of a discovery order the
are materials the prosecution should

10

have provided at

11

has not alleged there are materials the prosecution should have provided at the time of trial

12

because they came within the constitutional duty

13
14

of trial because they came under a

alleged there are materials that the

duty to provide discovery. He

exculpatory evidence. And

specifically requested at that

has

and was

entitled to

15

Accordingly, he is not entitled to a discovery order for any materials under Category

16

has not alleged under Category 3 that there are materials the prosecution had no

17

obligation to provide at time

18

specifically requested them.

19

Accordingly,

20

D.

would have been entitled had

is not entitled to a discovery order for any materials under Category 3.

The discovery request is overbroad.
Section 1054.9 provides

21
22

trial but to which

only limited discovery. It does not allow "free-floating"

discovery asking for virtually anything the prosecution possesses. The statute is limited
materials to which

24

materials that

25

outside the scope

defendant would have been entitled at the time of trial. Thus, any

District Attorney and law enforcement authorities did not possess at trial are
section 1

Any materials, however relevant to Bell's trial, subsequently acquired by the prosecution
27

team are not available under section 1054.9. This includes information that did not exist

28

time

trial. Also, any materials whose relevance only became clear

subject to discovery. The

of materials must

trial would not be

evaluated and determined based on

Memorandum of Points arid Authorities in Opposition to Motion for Post-conviction '''cr,,,,,prv(pen. Code, § 1054.9)

Exhibit
Page 36

the

1

record at trial

2

Brady obligations as to materials obtained post-triaL

3

of Bell's current discovery

4

hindsight. The prosecution will comply with their

not through the benefit

''-''-'IWVU

objected

District Attorney is

overbroad.
Some

5

his

are limited as

time; others are not

6

requests, therefore, include materials that occurred after

7

whose claimed

been made

as to

triaL And they include materials

triaL
"''''',...".".... 1054.9 requests looking for

This court is not required to parse

8
9

by

subsets of discoverable items. Instead,

court should

such requests in their

10

The discovery request is not reasonably specific.

11

Discovery includes, and is limited to, specific materials the prosecution or

12

enforcement authorities involved in the case

13

under

"'V,"'HV'H

16
17

discovery

1054.9 must be "reasonably specific."
for "any and all other records, orany kind

14
15

Thus, a motion

many

" "any other relevant

discovery materials," or any other so-called "catchall requests" are not reasonably specific.
rule.

run afoul of

"All discovery

two

" Items

ten

five,

18

eleven, thirteen and fifteen through twenty contain the phrase "all information and tangible

19

things." Item six

20

"All physical or biological

21

evidence seized or obtained."

v~ .., u ......

information of all persons." 116 Item nine OJ,","'''''''' with

with
A-...'-'UVV

or things recovered." Item twelve

twenty four begins with "To

npC1rlTlQ

extent not

with

real

P t " I . . . . .· "

by

23

27

116 Ben's Points
states that" 'information' and 'tangible things' include
aU types of information
things in all formats on all media. They include any form of
knowledge, communication, or representation, such as letters, words, pictures, graphs, charts,
sounds, or symbols, or combinations thereof, and any record of them, regardless of the manner
to, stalterrlenrs
which
record has been stored. They therefore include, but are not
or
by
person making
communications,
(whether or not
documents,
memoranda,
notes, letters,
charts,graphs,
diagrams, photographs, casts, molds, data, tests, test materials, test data, evaluations,
transcripts, translations, printouts, slides, transparencies,
exemplars,
recordings,
video recordings,
recordings, computer
data compilations, books, papers,

44
Memorandum of Points and Authorities in Opposition to Motion for Post-conviction VlS(:overv (Pen.

Exhibit
Page 37

§ 1054.9)

1
2
3
4
5
6
7
8

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

9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11

ERNEST DEWAYNE JONES,

12

Petitioner,

13

Case No. CV-09-2158-CJC

v.

CAPITAL CASE

14
15
16

MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

17
18
19

EXHIBIT C TO THE DECLARATION OF MICHAEL LAURENCE

20

Points and Authorities In Opposition to Motion for Post-Conviction Discovery
[Penal Code § 1054.9], No. CR135002 (San Diego Super. Ct. Oct. 27, 2009)

21
22
23
24
25
26
27
28

Exhibit
Page 38

1
2

3
4
5

6
7

BONNIE M. DUMANIS
District Attorney
mFF B. DUSEK, SBN 70719
Chief Deputy District Attorney
KATHRYN GAYLE, SBN 125517
Deputy District Attorney
330 West Broadway, Suite 860
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
Email: [e-mail]

8 Attorneys for Plaintiff
9

SUPERlOR COURT OF THE STATE OF CALIFORNIA

10

FOR THE COUNTY OF SAN DIEGO

11

CENTRAL DIVISION

12
13

14
15
16
17
18

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

DEATH PENALTY CASE
Cal. Supreme Court Case No. S046848
Superior Court Case No. CR135002

v.
KERRY LYN DALTON,

Defendant. POINTS AND AUTHORlTIES IN
OPPOSITION TO MOTION FOR
POST-CONVICTION DISCOVERY
[PENAL CODE §1054.9]

19
20

21
22

Date:
Time:
_-'--_ _ _ _ _ _ _ _ _ _ _ _-:----' Dept:
Comes now the plaintiff, the People of the State of California, by and through their

23

attorneys, BONNIE M. DUMANIS, District Attorney, JEFF DUSEK, Chief Deputy District

24

Attorney, and KATHRYN GAYLE, Deputy District Attorney, and respectfully submits the

25

following Points and Authorities in Opposition to Motion for Post-Conviction Discovery.

26

STATEMENT OF THE CASE

27

In an information filed by the San Diego County District Attorney on November 13,

28

1992, moving party Ken-y Dalton, Mark Lee Tompkins, and Sheryl Ann Baker were charged

29

with conspiracy to murder Irene Melanie May (count 1: Pen. Code, § 182, subd. (a)(!)) and the

1
Points and Authorities in Opposition to Motion for Post-Conviction Discovery [penal Code § 1054.9]
99/Z

Z£98'9,9-6,9 .j 2 11. dd \! . '.UJOll\! lJ!JjS!O Wd 9Z:Z0 600Z-LZ-lJO

Exhibit
Page 39

Case law is continuing to develop in this area. The issue of whether an out·of·state law

1

2 enforcement agency is part of the prosecution team for Brady purposes if the agency's
3 involvement is limited to providing the prosecution with records is pending before the California
4

Supreme Court in Barnett v. Superior Court, review granted September 17,2008,8165522.
d.

5

6

The holding of Peltnsy/vania v. Ritcltie should not be used to
characterize outside agencies as prosecution team members.

Dalton cites Pennsylvania v. Ritchie (1987) 480 U.S. 39 as authority for the proposition

7
8

that third.party agencies holding relevant, privileged records are members of the prosecution

9

team, even when the prosecution lacks possession of the records, and has no ability to access the

10

privileged records. In Rttchte, supra, tlJ.e Supreme Court held that, "the records of Children and

11

Youth Services constituted evidence in the government's possession for purposes of Brady."

12

(Pennsylvania v. Ritchie, supra, 480 U.S. 39, 57.)
Ritchie concerned a defendant's ability to obtain materials possessed by a govemment

13
14

agency (Children and Youth Services, CYS), but not available to the prosecution. (Ritchie,

15

supra, 480 U.S. at pp. 43.45.) The defendant served a subpoena on CYS seeking materials that

16

he claimed were relevant to the credibility of the victhn. (Id. at p. 43.) The materials were

17

confidential as a matter of state law. (Id. at p. 44.) The Court held, as a matter of due process.

18

the defendant was entitled to an in oamera review by the trial court of the material "to determine

19

whether it contain[ed] infonnatlon that probably would have changed the outcome of his l1·ial."

20

(Id. at p. 58.) The Court was clear, however, that the defendant did not have a right to examine

21

the materials himself and that he could "not require the trial court to search through the CYS file

22

without first establishing a basis for his claim that it contains material evidence." (Id. at p. 58,

23

n. 15.)

Although Ritchie addressed a defendant's due process right to access evidence in the

24
25

possession of the govermnent, it had no occasion to consider the scope of the "prosecution

26

team." The prosecutor in that case had no authority to access the information. The Court did

27

not conclude that the prosecution was in constructive possession of the materials or that the

28

prosecution was at fault for failing to obtain the CYS evidence for the defense.

29 III
24
Points and Authorities ill Opposition to Motion for Post-Conviction Discovery [penal Code § 1054.9]

Exhibit
Page 40

Ritchie i~ best understood as establishing only a defendant's due process rights to

1
2

materials that are possessed by a third party government agency that is outside of the

3 prosecution team. Since discovery pursuant to section 1054.9 is limited to materials in
4

possession of the prosecution team, Ritchie is not relevant to this particular question, as was

5

recognized by the California Supreme Court in People v. Webb (1993) 6 Cal.4th 494,518 which

6

observed:
[W]e question whether. records stemming from Sharon's voluntary
treatment by private and county therapists can be deemed "in the
possession" of the "govermnent" in the manner assumed by Rtrchie. The
records were not generated or obtained by the People in the course ofa
criminal investigation, and the People have had no greater access to them
than defendant. Given the strong policy of protecting a patient's treatment
history, it seems likely that defendant has no constitutional right to examine
the records even if they are "material" to the case.

7
8

9
10

11
12
13

It would be senseless to allow Dalton to prevail on her claim that outside agencies

14

holding witnesses' mental health records are members of the prosecution team under the

15

authority of Ritchie, when the prosecution has no access to the privileged records.

16
17

e. The prosecution team consists of the Sheriff's Department, San
Diego Pollee Department, and the District Attorney's Office.
The investigation into the crimes against May was first handled by the Law Enforcement

1g

19

Services Division of the San Diego County Sheriff's Department, who conducted a missing

20 person investigation and then initiated a homicide investigation. In 1991 the San Diego
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Metropolitan Task Force took over the investigation. Thereafter, the San Diego County District

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Attorney's Office joined the investigation.
The "prosecution team" in this case is comprised of the District Attorney's Office, the

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Law Enforcement Services Division of the San Diego County Sheriff's Department, and the San

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Diego Police Department. In addition, because forensic work was conducted by Forensic

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Science Associates, Forensic Science Laboratories, and the SerologicalResearch Institute, these

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agencies are team members as well.

28 III
29 III
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Points and Autborities in Oppositioll to Motion for Post-Conviction DiscovelY [penal Code §1054.9)
99/90

Exhibit
Page 41

6

Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
Bethany Lobo (Bar No. 248109)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
[e-mail]

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Attorneys for Petitioner Ernest Dewayne Jones

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC
CAPITAL CASE

Petitioner,
v.
MICHAEL MARTEL, Acting Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT PETITIONER’S SUPPLEMENTAL REPLY BRIEF ON THE
EFFECT OF CULLEN V. PINHOLSTER ON THE COURT’S POWER TO GRANT AN
EVIDENTIARY HEARING
EXHIBIT D TO THE DECLARATION OF MICHAEL LAURENCE
Amended Statement of Decision on Motion for Post-Conviction Discovery (PC 1054.9),
No. CR135002 (San Diego Super. Ct. June 28, 2011)

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Exhibit
Page 42

Fl. LED
Clerf< of the Superior Court

JUN 2 8 2011
By: V.s. HENNESSY-SCHIFF, Depll1y

SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO

CAPITAL CASE
Case No. CR 135002
14

~

(California Supreme Court No. S046848
[on automatic appeal and habeas corpus])
;.On Habeas Corpus.

AMENDED STATEMENT OF
DECISION ON MOTION FOR
POSTCONVICTION DISCOVERY
(PC 1054.9)

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Kerry Lyn Dalton moves this court for an order for postconviction discovery under

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Penal Code section 1054.9 1• Dalton requests discovery of twenty-eight categories of

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material. The requests are numerous and detailed. They present a wide variety of issues

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relating to the developing law under section 1054.9. The court has reviewed extensive

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points and authorities filed by both petitioner and the District Attorney and heard oral

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arguments. A Statement of Decision was filed March 8, 2010, granting the motion in part

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and denying it in part. A petition for writ of mandate was filed in the Court of Appeal

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which issued an opinion on November 23,2010, directing modifications to portions of this

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All references will be to the Penal Code unless otherwise specified.

-1-

AMENDED STATEMENT OF DECISION

Exhibit
Page 43

1

While Brady requires production of "favorable" evidence, it appears to this court that the

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terms "favorable" and "exculpatory" are equivalents for all practical purposes and that the

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legislative intent in section 1054.1(e) was to codify the constitutional requirement. Also,

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Brady only provides postconviction relief if the prosecution withholds evidence that is

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"material" to the issues in the case. However, the California Supreme Court has recently

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made clear that a defendant need not show "materiality" in order to be entitled to

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exculpatory evidence prior to trial or under section 1054.9. (Barnett, supra, at 901.)

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To be entitled to postconviction discovery, petitioner must provide a reasonable basis

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to believe that specific materials requested actually exist, though she need not prove that

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they are actually in the possession of the prosecution. (Barnett, supra, at 899, 901.)

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To the extent she fails to identify them specifically, there is little to talk about.

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Absent a specific dispute over an identifiable piece of evidence, there.is nothing a court can

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do to strengthen or sharpen the prosecutor's pre-existing constitutional obligation.

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Particularly with regard to material requested under Brady, petitioner bears the burden of
~ !

15 . identifying the material sought and showing, with particularity, how they are favorable to
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her. Without this, there is no basis for a ruling. (Kennedy, supra, at 372.)

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Section 1054.9 only requireifproduction of such material petitioner would have been

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entitled to at the time of trial. It does not, on its own terms, require production of materials

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that did not exist at the time of trial. While the prosecutor has a continuing constitutional

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duty to disclose Brady evidence discovered after trial (Steele, supra, at 694), this duty is

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imposed directly by the constitution and is self-executing. It is not statutory. Further, it is

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presumed the prosecution has fulfilled this obligation unless the defense overcomes that

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presumption. (Barnett, supra, at 900; Steele, supra, at 694.) However, since continuing

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discovery of materials that did not exist at the time of trial is not required by section 1054.9,

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it is not a proper part of a request under that section.

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III

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I I I

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I I I

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AMENDED STATEMENT OF DECISION

Exhibit
Page 44