Hawkins v. Wong

Filing 273

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/19/2019 DENYING without prejudice petitioner's 262 motion to bifurcate the evidentiary hearing and GRANTING petitioner's 263 motion to schedule the evidentiary hearing, and t he evidentiary hearing shall proceed on 9/21/2020 at 09:30 AM in Courtroom 8 before Magistrate Judge Edmund F. Brennan. All discovery must be completed by 6/22/2020; any discovery motions must be filed by that date. The parties shall submit a joint statement on or before 7/23/2019 in accordance with this order. A further status conference is set for 8/12/2020 at 10:00 a.m. in Courtroom 8 before Magistrate Judge Edmund F. Brennan. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY JAY HAWKINS,

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Petitioner,

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v.

No. 2:96-cv-1155-TLN-EFB DP
DEATH PENALTY CASE
ORDER

RON DAVIS,

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Respondent.

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Petitioner is a California death row inmate proceeding with counsel in this petition for

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writ of habeas corpus under 28 U.S.C. § 2254. The case has proceeded through cross-motions for

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summary judgment, and the court has ordered an evidentiary hearing on five issues. ECF Nos.

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222, 240. Petitioner asks the court to schedule the hearing and to bifurcate it into two phases: one

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phase to hear the sole guilt-phase claim and a second hearing, if necessary, to hear the four

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sentencing-phase claims. ECF Nos. 262, 263. Respondent opposes bifurcation. ECF No. 264.

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I.

Motion to Bifurcate

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Petitioner seeks a separate hearing of Claim A, in which he alleges that trial counsel

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William Lyons provided ineffective assistance of counsel during the guilt phase of the trial

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because he was concurrently representing Carmen Greenfield in several civil matters. Greenfield

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was a potential alternative suspect in one of the murder cases, but, according to petitioner, Lyons

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did not present her as such out of loyalty to her and/or to guard his financial interest in her civil
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cases. Petitioner argues that bifurcation is warranted because resolution of Claim A in his favor

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would require a new trial and thus obviate the need to hear the remaining penalty-phase issues.

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Federal Rule of Civil Procedure 42(b) provides: “For convenience, to avoid prejudice, or

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to expedite and economize, the court may order a separate trial of one or more separate issues,

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claims, crossclaims, counterclaims, or third-party claims.” See Rules Governing § 2254 Cases in

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the U.S. District Courts, Rule 12 (“The Federal Rules of Civil Procedure, to the extent that they

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are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding

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under these rules.”). The rule provides “broad discretion upon the district court to bifurcate a

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trial, thereby deferring costly and possibly unnecessary proceedings pending resolution of

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potential dispositive preliminary issues.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088

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(9th Cir. 2002).

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Respondent opposes bifurcation. He argues that all claims set for hearing allege

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ineffective assistance of counsel and will likely all require the testimony of trial counsel, defense

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investigators, and the prosecutor. Bifurcation would require these witnesses to appear at both

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hearings. Respondent also urges the court not to bifurcate the hearing because doing so would

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delay the resolution of the case even further.

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In reply, petitioner suggests that the court order bifurcation but take testimony from the

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attorneys and defense investigators on all the claims at the first hearing so that these witnesses

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would not have to appear twice and their testimony would be preserved.

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In their responses to the court’s order requesting estimates of how long the evidentiary

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hearing will last with bifurcation and without bifurcation, the parties have provided wildly

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differing projections.

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As to Claim A only, petitioner anticipates a 7-day hearing in which he would call 25

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witnesses. Petitioner anticipates that a unitary hearing would take 17 days and include the

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additional testimony of 9 experts and 20 lay witnesses.

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Respondent, on the other hand, anticipates that Claim A will take no more than a single

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day to hear. A unitary hearing, in respondent’s estimation, will take three days. Respondent

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anticipates calling no more than 7 witnesses.
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On the information provided by the parties at this time, the court is unable to conclude that

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bifurcation will abbreviate the hearing rather than enlarge it. Accordingly, the court will deny the

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motion for bifurcation without prejudice.

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II.

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As stated at the June 19, 2019 status hearing, the motion to schedule an evidentiary

Motion to Schedule Evidentiary Hearing

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hearing is granted. The hearing date and preceding discovery schedule are set forth in the order,

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below.

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III.

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For the foregoing reasons, it is hereby ORDERED that:

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Order

1. Petitioner’s April 10, 2019 motion to bifurcate the evidentiary hearing (ECF No. 262)

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is DENIED without prejudice;

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2. Petitioner’s April 10, 2019 motion to schedule the evidentiary hearing (ECF No. 263)

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is GRANTED, and the evidentiary hearing shall proceed on September 21, 2020, at

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9:30 a.m. in Courtroom No. 8 before the undersigned;

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3. The parties shall pursue discovery consistent with Rule 6 of the Rules Governing §

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2254 Cases in the U.S. District Courts, the Federal Rules of Civil Procedure, the Local

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Rules of the Eastern District of California, and this order;

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4. All discovery must be completed by June 22, 2020. Any discovery motions must be

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filed by that date;

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5. The parties shall submit a joint statement on or before July 23, 2020 setting forth:

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a. Anticipated witnesses to testify at the hearing;

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b. Testimony to be submitted in deposition transcripts rather than live testimony;

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c. A statement of undisputed and disputed facts;

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d. Anticipated exhibits to be introduced at the hearing.

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6. A further status conference is set for August 12, 2020 at 10:00 a.m. in Courtroom No.
8 before the undersigned.
DATED: June 19, 2019.

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