Williams v. Knowles

Filing 99

ORDER Setting Evidentiary Hearing, signed by Magistrate Judge Jennifer L. Thurston on 03/05/15. Evidentiary Hearing set for 6/23/2015 at 09:30 AM in Courtroom 6 (JLT) before Magistrate Judge Jennifer L. Thurston. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMMY RAY WILLIAMS,

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Petitioner,
v.
MIKE KNOWLES, Warden,
Respondent.

) Case No.: 1:03-cv-05819-JLT
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) ORDER SETTING EVIDENTIARY HEARING
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This matter is before the Court after it was remanded by the Ninth Circuit Court of Appeal “for

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a determination of whether [Petitioner’s] actual innocence claim meets the standard set forth in

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McQuiggin so that he is entitled to an exception to the expiration of the AEDPA statute of

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limitations.” (Doc. 89, pp. 2-3).

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On February 19, 2015, the Court ordered the parties to file supplemental briefs explaining

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whether an evidentiary hearing is required as to whether the hospital’s action related to placement of

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the feeding tube into the victim constituted gross negligence. (Doc. 96) If a hearing was thought

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necessary, the party was to detail the evidence that would be presented and the earliest possible date

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that the hearing could occur. Id.

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On March 2, 2015, Petitioner filed a brief asserting that a hearing is required. (Doc. 97) in

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particular, Petitioner claims that the surgeon who placed the feeding tube originally ordered that a

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doctor be called if the tube was dislodged. Id. at 2. He claims that when the tube was displaced, it
was reinserted by rehabilitation hospital staff rather than by a doctor. Id. Moreover, he claims the

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hospital staff contravened doctor’s orders not to begin feeding the patient until the correct placement

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of the feeding tube was confirmed. Id. at3. Petitioner claims staff members continued to feed the

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patient through the tube without confirming its proper placement and that these acts resulted in the

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patient’s death. Id. Petitioner asserts that the actions constitute gross negligence and he will present

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expert testimony to detail the extent of this negligence. Id. Petitioner claims the earliest date he

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would be prepared for the evidentiary hearing is June 2015. Id. at 4.
Respondent disagrees that a hearing is necessary. (Doc. 98 at 2) While admitting the medical

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records constitute new evidence, Respondent argues that because they duplicate the coroner’s

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determination, they are insufficient to justify the hearing. However, as noted above, Petitioner argues

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the medical records detail repeated errors by the rehabilitation hospital. First, though the surgeon, who

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placed the PEG tube initially, ordered that a doctor was to be called in the event the tube was

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dislodged, this did not occur. (Doc. 93-1 at 4.) Instead, a nurse replaced the dislodged PEG tube

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bedside with a foley catheter. Id. at 10. Second, this procedure was made more difficult by the fact

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that the PEG tube had been placed only two days before and the “tract” had not yet healed. (Doc. 93-2

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at 6) Thus, there was no established pathway for insertion of the tube. Id. Third, rehabilitation

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hospital staff delivered medications to the patient and resumed feeding the patient without first

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confirming the correct placement of the tube.1 (Doc. 93-1 at 10.)
On the other hand, the autopsy report does not attempt to determine whether the hospital’s

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action was legal cause of the victim’s death and the evidence from the report is equivocal as to

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whether such a conclusion can be drawn. The autopsy report indicates that the injuries sustained as a

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result of the collission resulted in a head trauma that “while significant, would not seem to be severe

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enough to lead to death as a primary cause.” (Doc. 93, Ex. 2, p. 6)(Emphasis supplied). The

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pathologist, Dr. Dianne R. Vertes, did not state, to a reasonable degree of medical probability, or

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indeed to any degree of probability, that the head trauma resulting from Petitioner’s conduct would not

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have resulted in death, but instead opined only that it “would not appear” that the head injuries were so

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severe that, by themselves, they would have resulted in death. Dr. Vertes also indicated that the cause

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of the victim’s death “is attributed” to peritonitis. The pathologist makes no attempt to express an

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The court cannot make out any note indicating that feeing resumed but the coroner found “100 cc’s of white fluid
surrounding the abdominal viscera” (Doc. 93-2 at 4) seeming to indicate that feeding resumed especially in light of the fact
that this was the amount of nutrition he had been receiving (Doc 93-1 at 9).

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expert legal opinion, nor does her choice of words in the autopsy report exclude the possibility that the

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victim’s head injuries contributed to his death. Most notably, the pathologist’s phrasing does not

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require a conclusion that peritonitis was the sole and exclusive cause of the victim’s death.
Respondent argues also2 that Petitioner has not established a constitutional violation and absent

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an examination of the medical records and the presentation of expert testimony, clearly, he could not.

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However, this evidence, if presented, would show that he was convicted upon insufficient evidence

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which violates the Constitution. The Due Process Clause “protects the accused against conviction

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except upon proof beyond a reasonable doubt of every fact necessary to constitute a crime with which

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he is charged.” In re Winship, 397 U.S. 358, 363-364 (1970). Winship continued, “[A] society that

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values the good name and freedom of every individual should not condemn a man for commission of a

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crime when there is reasonable doubt about his guilt.” Thus, it seems unlikely to be disputed that if

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Petitioner was convicted of second degree murder when, as a matter of law, he was not guilty, the

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Constitution would be violated. In that factual situation, seemingly, no reasonable jury could convict.

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ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

The court sets an evidentiary hearing on June 23, 2015 at 9:30 a.m. in Courtroom 6 of

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the Robert E. Coyle Federal Courthouse in Fresno, California. At the hearing, evidence will be

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allowed on the topic of whether the actions by the rehabilitation hospital staff related to inserting the

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foley catheter into the victim’s abdomen, was gross negligence such to constitute the sole cause of

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death;
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No later than May 11, 2015, counsel for Petitioner SHALL file a written request for

Petitioner to be transported for the hearing, if he wishes to be present.

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IT IS SO ORDERED.

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Dated:

March 5, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Respondent seems to argue the Court could go directly to the merits of the matter and decide the petition on the current
record. (Doc. 98 at 3 [“[T]his Court could resolve the matter (by finding counsel did adequately convey the cause of death)
without yet another hearing.”].) However, it does not appear Respondent is withdrawing from his previous position that the
petition was not timely nor conceding that it is.