Souliotes v. Tilton

Filing 92

ORDER REGARDING SCOPE OF EVIDENTIARY HEARING AND DISCOVERY, signed by Magistrate Judge Michael J. Seng on 11/10/11. (Clar, Jeremy)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE SOULIOTES,

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Petitioner,
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v.
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ANTHONY HEDGPETH, Warden,
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Respondent.
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____________________________________ )

1:06-cv-00667 AWI MJS HC
ORDER REGARDING SCOPE
EVIDENTIARY HEARING
DISCOVERY

OF
AND

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I.

INTRODUCTION

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On August 17, 2011, the Ninth Circuit remanded the case to this Court for the
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following purpose:
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In light of the intervening en banc decision in Lee v. Lampert, No.
09-35276, 2011 WL 3275947 (9th Cir. Aug. 2, 2011) (en banc), we vacate
our opinion in Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010), reverse the
district court’s dismissal of Souliotes’s habeas petition as untimely, and
remand for proceedings consistent with Lee.

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We also vacate our order of limited remand issued on May 25, 2011,
with the understanding that the district court will conduct whatever
proceedings are necessary, in an expedited manner, to determine whether
any of Souliotes’s habeas claims may be addressed on the merits.

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The Ninth Circuit Court of Appeals granted Petitioner’s request for an evidentiary hearing
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regarding Petitioner’s attempt to use the actual innocence gateway as described in Schlup
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v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). If Petitioner makes

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a showing that he is ‘actually innocent’ he is entitled to have otherwise untimely claims

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heard on the merits. Petitioner shall also present evidence that he was diligent in

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presenting his stand alone actual innocence claim and therefore entitled to statutory tolling

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under 28 U.S.C. § 2244(d)(1)(D).

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The parties initially expressed some disagreement as to the scope of the hearing

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and the scope of discovery necessary to prepare for the hearing. The Court’s scheduling

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order directed briefing on these issues. (Order, ECF No. 84.) Each party filed an initial brief

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on October 28, 2011 and then a reply brief on November 4, 2011. (ECF Nos. 85-86, 88-89.)

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A hearing on the discovery and related issues was convened by the Court on November

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9, 2001. Petitioner appeared telephonically through his counsel, Jimmy McBirney, and

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Respondent appeared, also telephonically, through his counsel, Kathleen McKenna.
The following order reflects the parties’ agreements and the Court’s orders on the

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issues addressed during the hearing.

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II.

SCOPE OF THE HEARING

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A.

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In order to better frame the discussion regarding the scope of discovery and

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evidence to be presented at the evidentiary hearing, the Court directed the parties to recent

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reiterations of the standard for reviewing actual innocence gateway claims by the Ninth

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Circuit and the Supreme Court. (Scheduling Order, pp. 3-4, ECF No. 84.), Specifically, the

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order recited the following statements of law.

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In Lee v. Lampert, the Ninth Circuit held:

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Relevant Supreme Court and Ninth Circuit Precedent

In order to present otherwise time-barred claims to a federal habeas
court under Schlup, a petitioner must produce sufficient proof of his actual
innocence to bring him "within the 'narrow class of cases . . . implicating a
fundamental miscarriage of justice.'" 513 U.S. at 314-15 (quoting McCleskey,
499 U.S. at 494). The evidence of innocence must be "so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error." Id. at 316.

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To pass through the Schlup gateway, a "petitioner must show that it
is more likely than not that no reasonable juror would have convicted him in
the light of the new evidence." Id. at 327; House, 547 U.S. at 538. This
exacting standard "permits review only in the 'extraordinary' case," but it
"does not require absolute certainty about the petitioner's guilt or innocence."
House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). As we have
previously said, "where post-conviction evidence casts doubt on the
conviction by undercutting the reliability of the proof of guilt, but not by
affirmatively proving innocence, that can be enough to pass through the
Schlup gateway to allow consideration of otherwise barred claims." Sistrunk
v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en banc) (citing Carriger v.
Stewart, 132 F.3d 463, 478-79 (9th Cir. 1997) (en banc)).

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Schlup requires a petitioner "to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial." Schlup, 513 U.S. at 324. The
habeas court then "consider[s] all the evidence, old and new, incriminating
and exculpatory," admissible at trial or not. House, 547 U.S. at 538 (internal
quotation marks omitted); Carriger, 132 F.3d at 477-78. On this complete
record, the court makes a "'probabilistic determination about what
reasonable, properly instructed jurors would do.'" House, 547 U.S. at 538
(quoting Schlup, 513 U.S. at 329).

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Lee v. Lampert, 2011 U.S. App. LEXIS 15830, 20-23 (9th Cir. Or. Aug. 2, 2011) (en banc).

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Further, the Supreme Court, in House v. Bell elaborates on the manner in which a

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district court is to determine a claim of actual innocence:
For purposes of this case several features of the Schlup standard bear
emphasis. First, although "[t]o be credible" a gateway claim requires "new
reliable evidence--whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence--that was not presented
at trial," id., at 324, 115 S. Ct. 851, 130 L. Ed. 2d 808, the habeas court's
analysis is not limited to such evidence. ... In addition, ...we have no occasion
to elaborate on Schlup's observation that when considering an
actual-innocence claim in the context of a request for an evidentiary hearing,
the District Court need not "test the new evidence by a standard appropriate
for deciding a motion for summary judgment," but rather may "consider how
the timing of the submission and the likely credibility of the affiants bear on
the probable reliability of that evidence." 513 U.S., at 331-332, 115 S. Ct.
851, 130 L. Ed. 2d 808. Our review in this case addresses the merits of the
Schlup inquiry, based on a fully developed record, and with respect to that
inquiry Schlup makes plain that the habeas court must consider "'all the
evidence,'" old and new, incriminating and exculpatory, without regard
to whether it would necessarily be admitted under "rules of
admissibility that would govern at trial." See id., at 327-328, 115 S. Ct.
851, 130 L. Ed. 2d 808 (quoting Friendly, Is Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Based
on this total record, the court must make "a probabilistic determination about
what reasonable, properly instructed jurors would do." 513 U.S., at 329, 115

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S. Ct. 851, 130 L. Ed. 2d 808. The court's function is not to make an
independent factual determination about what likely occurred, but rather to
assess the likely impact of the evidence on reasonable jurors. Ibid.

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Finally, as the Schlup decision explains, the gateway actual-innocence
standard is "by no means equivalent to the standard of Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)," which governs claims
of insufficient evidence. Id., at 330, 99 S. Ct. 2781, 61 L. Ed. 2d 560. When
confronted with a challenge based on trial evidence, courts presume the jury
resolved evidentiary disputes reasonably so long as sufficient evidence
supports the verdict. Because a Schlup claim involves evidence the trial
jury did not have before it, the inquiry requires the federal court to
assess how reasonable jurors would react to the overall, newly
supplemented record. See ibid. If new evidence so requires, this may
include consideration of "the credibility of the witnesses presented at
trial." Ibid.; see also ibid. (noting that "[i]n such a case, the habeas
court may have to make some credibility assessments").

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House v. Bell, 547 U.S. 518, 537-539 (2006) (emphasis added).

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B.

The Parties’ Contentions Regarding Scope of Hearing

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The Parties appear now to be in agreement that the scope of the hearing regarding

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actual innocence is determined by the criteria set forth by the Supreme Court in House v.

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Bell and restated by the Ninth Circuit in Lee v. Lampert. Petitioner’s briefing on October 28,

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2011 appears to reiterate the same standards. (See Pet’r’s Briefing, pp. 1-2, ECF No. 86.)

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Respondent also refers to the standards set forth in House with regard to the scope of the

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hearing. (See Resp’t’s Briefing, pp.4-5, ECF No. 85.) As the parties and the Court are in

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agreement as to the scope of the evidentiary hearing relating to actual innocence, the

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hearing shall encompass the evidence discussed in House and Lee described above.

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A Showing of Diligence May Be Required for the Actual Innocence
Exception
Respondent has asserted in her briefing that in order to present an actual innocence

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gateway claim, the Petitioner must make an initial showing of diligence. See Whitley v.

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Senkowski, 317 F.3d 223, 225 (2d Cir. 2003).

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C.

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There is a split among the Federal Circuit Courts as to whether diligence is required

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for an actual innocence gateway claim. See Souter v. Jones, 395 F.3d 577, 601 n.16 (6th

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Cir. 2005) (“[G]iven the grave constitutional concerns which are raised by the incarceration

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of one who is actually innocent, we decline to impose additional requirements [specifically

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a showing of diligence] upon a petitioner beyond those which the Supreme Court has set

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forth in its habeas corpus jurisprudence.”).
The Ninth Circuit has yet to state whether a diligence requirement is necessary.

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Recently, in Lee v. Lampert, 653 F.3d at 929 n.9, the court stated:
Because this case does not present the question, we need not—and
do not—decide what diligence, if any, a petitioner must demonstrate in order
to qualify for the actual innocence exception recognized in this opinion.
Compare, e.g., Lopez, 628 F.3d at 1231 (requiring no showing of diligence
by a petitioner seeking equitable tolling on actual innocence grounds), with
Flanders, 299 F.3d at 978 (requiring a petitioner seeking equitable tolling on
actual innocence grounds to show either that a state-created barrier
prevented his timely discovery of relevant facts or that a "reasonably diligent
petitioner" could not have discovered such facts in time to file within the
limitations period).

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Id.
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Since the issue remains open in the Ninth Circuit, the parties shall address in briefs
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to be submitted at or before the January 24, 2012, evidentiary hearing whether Petitioner
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was required by law to be diligent in presenting his actual innocence exception claim.
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Absent a prior ruling from this Court to the contrary, all evidence relating to diligence shall
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be presented at the evidentiary hearing.
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III.

SCOPE OF DISCOVERY

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A.

Relevant Authority Governing Discovery in Habeas Proceedings

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Rule 6 of the Rules Governing Section 2254 Cases (“Rule 6") allows for discovery
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in habeas proceedings. The rule in its entirety states:
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Rule 6. Discovery
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(a) Leave of court required. A judge may, for good cause, authorize a party
to conduct discovery under the Federal Rules of Civil Procedure and may
limit the extent of discovery. If necessary for effective discovery, the judge
must appoint an attorney for a petitioner who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.

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(b) Requesting discovery. A party requesting discovery must provide reasons
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for the request. The request must also include any proposed interrogatories
and requests for admission, and must specify any requested documents.

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(c) Deposition expenses. If the respondent is granted leave to take a
deposition, the judge may require the respondent to pay the travel expenses,
subsistence expenses, and fees of the petitioner's attorney to attend the
deposition.

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Furthermore, Rule 12 of the Rules Governing Section 2254 Cases states that “The

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Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any

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statutory provisions or these rules, may be applied to a proceeding under these rules.”

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Accordingly, to the extent Rule 6 does not provide to the contrary, this Court will look to

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the discovery rules in the Federal Rules of Civil Procedure for guidance.

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Good Cause Found; Discovery Authorized

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Respondent correctly asserts that Rule 6 requires a showing of good cause for

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discovery relating to the substantive merits of a habeas claim. See Rule 6; McDaniel v.

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United States Dist. Court, 127 F.3d 886, 888 (9th Cir. 1997). Respondent then observes

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that since an actual innocence gateway claim is not a substantive claim on the merits that

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could entitle Petitioner to relief, discovery may be less appropriate or less extensive. In

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support of this position, Respondent cites Bracy v. Gramley, 520 U.S. 899, 908-909 (1997),

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that held “where specific allegations before the court show reason to believe that the

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petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled

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to relief, it is the duty of the courts to provide the necessary facilities and procedures for an

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adequate inquiry."

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The Court finds Bracy to be inapposite. It dealt with discovery directed towards

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Petitioner’s underlying claims entitling him to relief. The present case is not so directed.

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Additionally, Rule 6 does not limit discovery to facts demonstrating that petitioner is entitled

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to relief. Rule 6 requires a showing of good cause. Here, good cause is inherent in

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Petitioner’s assertion that, given his actual innocence, a miscarriage of justice would result

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if he were not permitted to fully discover and pursue his claims. Several federal courts

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have so held. For example, the District of Idaho provided the following reasoning in allowing

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discovery relating to such issues. It stated:

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The Court may expand the record under Rule 6 of the Rules
Governing § 2254 cases with items not presented to the state court that are
relevant to the issues of cause and prejudice. Several federal courts facing
this issue have determined that, when the petitioner is requesting discovery
to prove the merits of a claim, § 2254(e)(2) applies, but when the petitioner
is requesting discovery to show cause and prejudice or a miscarriage of
justice, such a request likely "does not implicate § 2254(e)(2)" and may
"establish[] 'good cause' under Rule 6." Charles v. Baldwin, 1999 U.S. Dist.
LEXIS 13909, 1999 WL 375591, at *2 (D.Or. 1999), aff'd on recons., Charles
v. Baldwin, 1999 U.S. Dist. LEXIS 6341, CV-97-380-ST, 1999 WL 694716 (D.
Or. 1999), aff'd on appeal in unpub. op., Charles v. Baldwin, 2002 WL
31395774 (9th Cir. 2002); see also Cristin v. Brennan, 281 F.3d 404, 418-19
(3rd Cir. 2002) (there is "no indicia that Congress intended § 2254(e)(2)'s
restrictions on evidentiary hearings to apply, in addition to hearings on the
merits, to hearings on excuses to procedural default); accord Sibley v.
Culliver, 377 F.3d 1196 (11th Cir. 2004); see generally Griffin v. Johnson,
350 F.3d 956, 966 (9th Cir. 2003) (acknowledging but declining to address
the issue of whether § 2254(e)(2) governs a request for a hearing on actual
innocence).

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The Court agrees with the Oregon District Court and the Third and
Eleventh Circuits that a petitioner does not have to satisfy § 2254(e)(2) if the
issues at hand are cause and prejudice and actual innocence as excuses for
procedural default. Consequently, Petitioner shall be entitled to expand the
record with his forms for these purposes only.

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Neault v. Blades, 2006 U.S. Dist. LEXIS 47733, 4-6 (D. Idaho July 7, 2006); see also Cox

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v. Paskett, 2006 U.S. Dist. LEXIS 72493, 32-34 (D. Idaho, Sept. 29. 2006). While the Idaho

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district court was addressing claims relating to procedural default, this Court finds its

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reasoning equally applicable to the statue of limitations issue here, especially given the

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recent expansion of the miscarriage of justice exception by the Ninth Circuit in Lee v.

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Lampert, 653 F.3d 929.

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It is to be noted that a showing of good cause does not require Petitioner to

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conclusively show that he will obtain favorable evidence or prevail on the claim. Pham v.

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Terhune, 400 F.3d 740, 743 (9th Cir. 2005).1 In light of the above case law and the nature

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“We do not reach the merits of Pham's Brady claim. To obtain Rule 6(a) discovery of the
laboratory notes, Pham need not demonstrate that he will ultimately prevail on his underlying [claim.] See
Bracy, 520 U.S. at 909 ("It may well be, as the Court of Appeals predicted, that petitioner will be unable to

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and import of the claims presented here, the Court finds that Petitioner has made a

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showing of good cause and is entitled to discovery under Rule 6 consistent with the issues

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to be addressed at the evidentiary hearing. Specifically, the Court hereby authorizes

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Petitioner to issue and serve the four subpoenas for the production of documents from

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various law enforcement and municipal agencies attached as exhibits to Petitioner’s

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Briefing. (Brief, Ex. A, ECF No. 86.) However, Petitioner shall extend the date and time

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for production to not earlier than November 16, 2011.

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Respondent is concerned that Petitioner’s requests are expansive and constitute an

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impermissible ‘fishing expedition’. The Court is aware of the breadth of the discovery

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requests, but finds them sufficiently narrow and fully appropriate to the context of this case.

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Given the scope of the hearing as set out above and the substantial issues to be resolved

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at the hearing, the Court is of the view that any matter a reasonable person would believe

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to have the potential to relate to Petitioner’s actual innocense claim will be discoverable

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unless a specific exception based on the facts and sound law establishes the contrary.

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This view shall guide both parties and their witnesses. Delay and interference will not be

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tolerated.

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To the extent a party concludes in good faith that it is necessary to discover

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expected witness testimony in order to prepare for the hearing or expedite the presentation

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of evidence at the hearing, the parties shall meet and confer and mutually agree on the

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most efficient and economical means of exchanging such information.

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Nothing herein is intended to deprive either party of recourse should proposed

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discovery prove inappropriate or be inappropriately refused.

If, after meeting and

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conferring, the parties prove incapable of resolving a good faith discovery dispute

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themselves, either may petition the Court in the manner described in Section IV, below,

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obtain evidence sufficient to support a finding of actual judicial bias in the trial of his case, but we hold that
he has made a sufficient showing . . . to establish 'good cause' for discovery.” Id.

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for an expedited hearing and resolution of such dispute.

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C.

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Petitioner requests potentially exculpatory evidence relating to the witness Monica

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Sandoval. Under California law, it is well settled that a defendant sentenced to death or

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life without the possibility of parole is entitled during post conviction appeals to materials

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in the possession of law enforcement authorities the same as the defendant was entitled

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at trial. See Cal. Penal Code § 1054.9; Barnett v. Superior Court, 50 Cal. 4th 890, 897

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(2010); In re Steele, 32 Cal. 4th 682 (2004). The California Supreme Court, in In re Steele,

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described the type of materials that the state has a duty to provide:

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Evidence Relating to Monica Sandoval

[S]ection 1054.9 clearly permits record reconstruction; thus, the defendant
is entitled to materials the prosecution provided at trial but that the defendant
can show have since been lost. We believe it also includes materials to which
the defendant was actually entitled at the time of trial, but did not receive.
This category includes specific materials that the defendant can show the
prosecution should have provided (but did not provide) at the time of trial
because they came within the scope of a discovery order the trial court
actually issued at time of trial or a statutory duty to provide discovery. (See
Pen. Code, § 1054 et seq.) Additionally, “The prosecution has a duty under
the Fourteenth Amendment's due process clause to disclose evidence to a
criminal defendant” that is “both favorable to the defendant and material on
either guilt or punishment.” ( In re Sassounian (1995) 9 Cal.4th 535, 543 [37
Cal. Rptr. 2d 446, 887 P.2d 527]; see also Brady v. Maryland (1963) 373
U.S. 83 [10 L. Ed. 2d 215, 83 S. Ct. 1194] (Brady).) Finally, this category
includes materials the prosecution should have provided at time of trial
because the defense specifically requested them at that time and was
entitled to receive them.
In re Steele, 32 Cal. 4th at 695.

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Petitioner, as a state prisoner sentenced to life without the possibility of parole, is

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entitled to the materials enumerated under Section 1054.9. The Court is unaware of any

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reason why the state’s duty to provide such materials should be relieved during Petitioner’s

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federal post-conviction appeals. Absent a good faith contention, based upon sound and

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clearly enunciated and supported legal principal, that some portion of those files are

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privileged or otherwise not discoverable, the entire said file shall be produced.

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D.

Respondent’s Request to Depose Trial Counsel

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Respondent has asserted an intent to depose trial counsel. Petitioner objects that

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such testimony, while relevant to Petitioner’s ineffective assistance of counsel claim, is not

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relevant to the claims at issue at this January 24, 2012, evidentiary hearing.

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The Court finds that reasonableness of trial counsel’s conduct is not relevant at this

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time. Absent further order of this Court, no deposition of Petitioner’s trial counsel may

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proceed. This ruling is without prejudice to Respondent’s right to renew his request if and

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to the extent he seeks to dispose trial counsel regarding issues relating to Petitioner’s

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purported factual innocence.

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IV.

EXPEDITED HEARINGS ON EVIDENTIARY DISPUTES

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Given the weight of the issues to be addressed in this case and the Ninth Circuit’s

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mandate to proceed with the evidentiary hearing in an expedited manner, the parties have

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agreed to and the Court has ordered an ambitious schedule for preparation for and conduct

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of the evidentiary hearing. Any activity that threatens that schedule will be viewed with

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great disfavor and, as appropriate, met with sanctions.

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To further this goal the Court announced and the parties agreed to the following

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procedures for addressing and resolving threatened delays and any disputes that might

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arise.

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First, the parties’ respective counsel shall, without Court intervention, meet and

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confer promptly and professionally and undertake to resolve any such dispute between

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themselves, and if necessary, with any third party. If they are unable to do so, either party

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may contact the Court’s Court Room Deputy (Laurie Yu at 209-372-8917 or

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[e-mail]) or Career Clerk (Jeremy Clar, at 209-372-0320, Extension 222,

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or [e-mail], and request an expedited hearing to address and resolve the

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dispute. The Court will endeavor to convene such a hearing within not more than twenty

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four (24) hours of the request being received; if a more immediate hearing is necessary,

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for example, during the course of a deposition, the Court will attempt to provide it. To

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accommodate this approach each party shall submit at least one hour before the scheduled

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hearing an abbreviated brief of no more than three (3) double-spaced pages summarizing

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the essential facts giving rise to the dispute and citing to law that justifies the position being

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taken. The hearing shall be held telephonically and without a record being made. Unless

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otherwise noted, the Court shall rule on the issue during the hearing; no written

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memorandum of decision will be issued. If the Court finds that either party failed to act

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reasonably, in good faith and with proper authority in causing or bringing the matter on for

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hearing, sanctions will be imposed.
Any request to deviate from the any of the above procedures shall be made in

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writing at the time the hearing is requested.

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IT IS SO ORDERED.

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Dated:
ci4d6

November 10, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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