Bolin v. Jill L. Brown, et al

Filing 330

ORDER Denying 327 Respondent's Second Motion for Reconsideration of Order Granting Petitioner a Limited Evidentiary Hearing, signed by District Judge Lawrence J. O'Neill on 3/21/13. Hearing Date: April 15, 2013 Vacated. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL C. BOLIN,

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Petitioner,
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vs.
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KEVIN CHAPPELL, as Acting Warden of San )
Quentin State Prison,
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Respondent.
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_______________________________________ )

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Case No. 1:99-cv-05279 LJO
DEATH PENALTY CASE
ORDER DENYING RESPONDENT’S
SECOND MOTION FOR
RECONSIDERATION OF ORDER
GRANTING PETITIONER A LIMITED
EVIDENTIARY HEARING
HEARING DATE: APRIL 15, 2013
VACATED

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This matter is before the Court on the renewed motion for reconsideration filed by Respondent

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Kevin Chappell, as Acting Warden of San Quentin State Prison (the “Warden”) on March 15, 2013. The

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opposition from Petitioner Paul C. Bolin (“Bolin”) has been scheduled for April 1, 2013. The Court,

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however, is able to resolve this motion without input from Bolin and without argument.

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Relying on Walker v. Martel, ___ F.3d ___, 2013 WL 848293 (9th Cir. Mar. 7, 2013), and Premo

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v. Moore, ___ U.S. ___, 131 S. Ct. 733 (2011), the Warden argues this Court improperly supplanted the

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presumed prejudice analysis of Styers v. Schriro, 457 F.3d 1026 (9th 2008) for the prejudice requirement

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of Strickland v. Washington, 466 U.S. 668 (1984). Utilizing one of two correct avenues for determining

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a different outcome in the proceedings, the Warden argues the matter must be resolved against Bolin

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without a hearing. First, the Warden argues is that “there is no evidence indicating that the jurors who

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served on Petitioner’s jury could not be fair and impartial.” Second he maintains that because both the

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guilt phase and penalty phase prosecution cases were so strong the ultimate verdicts of guilt and death

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would not have been different.
ODenyRespt2ndMo4Recon.Bol.wpd

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The Warden is mistaken on two fronts. First, the Court has not overlooked Strickland prejudice

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by ordering an evidentiary hearing. Rather the determination of whether there is presumed prejudice

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occasioned by pretrial publicity will inform Strickland prejudice. Second, the Warden is focused on the

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incorrect stage of the proceedings for determining whether there would be a different outcome in the

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proceedings.

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The issue here is whether, because of ineffective assistance of counsel, Bolin was deprived of

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his Sixth Amendment right to an impartial jury. This right to an impartial jury, in turn, is considered

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“fundamental” to our system of justice. See United States v. Montes, 628 F.3d 1183, 1187 (9th Cir.

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2011). And because the right to an impartial jury is fundamental to our system of justice, it is not subject

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to harmless error analysis. Rose v. Clark, 478 U.S. 570, 578 (1986) (holding that harmless error analysis

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“presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument

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before an impartial judge and jury”). That is, deprivation of the right to be tried by an impartial jury is

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structural error.

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The Strickland prejudice prong that must be established in this case is whether it is reasonably

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likely that venue from Kern County would have been changed had Bolin’s attorneys renewed the motion

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so that Bolin could be tried by an impartial jury. The Warden is mistaken to jump all the way to the

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ultimate outcome of the case. His approach ignores the importance and fundamental nature of an

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impartial jury. The claimed deficient attorney performance affects this fundamental right. Therefore

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the Strickland prejudice prong also must focus on this right. The Supreme Court’s opinion in Moore,

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supra, 131 S.Ct. 733, bears out the notion that a different outcome in the proceeding doesn’t necessarily

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call for assessing the relative merits of the prosecution case. In that case, the threshold for Strickland

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prejudice was described as whether but for counsel’s errors, the petitioner would have pleaded not guilty

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and insisted on going to trial. Id. at 743.

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In Bolin’s case, the Court does not yet know whether there is a reasonable probability venue

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would have been changed had counsel renewed the motion because the matter of presumed prejudice

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among the jurors has not been determined. In the evidentiary hearing order, the Court found that Bolin

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had made out a prima facie case of “presumed prejudice” of the prospective (and actual) jurors and that

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because of this presumed prejudice, his attorneys should have renewed the change of venue motion. The
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issue of “presumed prejudice” is what the Court will decide following the evidentiary hearing. Only

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then, can the Court determine whether there is a reasonable probability venue would have been changed

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had Bolin’s attorneys renewed the motion.

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The Warden’s second, renewed motion for reconsideration of the August 12, 2012 order granting
Bolin a limited evidentiary hearing IS DENIED. The hearing set for April 15, 2013 IS VACATED.

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IT IS SO ORDERED.

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Dated:

March 21, 2013
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge

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ODenyRespt2ndMo4Recon.Bol.wpd

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