Frye v. Calderon, et al

Filing 653

ORDER signed by Judge Lawrence K. Karlton on 8/27/2014 DENYING 532 Corrected Motion for Reconsideration. (cc: Death Penalty Group Sacramento) (Michel, G)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JERRY GRANT FRYE,

12
13
14

Petitioner,
v.

No.

CIV. S-99-628 LKK CKD

DEATH PENALTY CASE
ORDER

ROBERT WONG, ACTING WARDEN OF
SAN QUENTIN STATE PRISON,

15
Respondent.
16
17
18

Petitioner Jerry Grant Frye is incarcerated in San Quentin

19

State Prison, under a death sentence. He is presently before this

20

court seeking a writ of habeas corpus under 28 U.S.C. § 2254.

21

Petitioner requests reconsideration of the Magistrate

22

Judge’s denial of an objection to the admission of certain expert

23

testimony. Respondent opposes the request. For the reasons set

24

forth below, petitioner’s request will be denied in its entirety.

25

I. BACKGROUND

26

Petitioner initiated this federal habeas corpus proceeding

27

on March 29, 1999. The case was initially assigned to former

28

Magistrate Judge John F. Moulds. When Magistrate Judge Moulds
1

1

subsequently recused himself, the case was reassigned to then-

2

Magistrate Judge Kimberly J. Mueller, on December 20, 2004. (ECF

3

Nos. 188, 189.) Upon the latter’s confirmation as U.S. District

4

Court Judge, the case was reassigned to Magistrate Judge Dale A.

5

Drozd on January 6, 2011 (ECF No. 564), then to Magistrate Judge

6

Edmund F. Brennan on February 18, 2011 (ECF No. 574), and then to

7

Magistrate Judge Carolyn Delaney on August 2, 2011. (ECF

8

No. 596.)

9

Petitioner filed the operative Second Amended Petition for

10

Writ of Habeas Corpus, which contains 45 claims for relief, on

11

March 31, 2003. (“Second Amended Petition,” ECF No. 104.) An

12

Answer was filed on July 1, 2003. (ECF Nos. 112, 113.)

13

On July 19, 2004, petitioner filed a motion for an

14

evidentiary hearing. (ECF No. 162.) On October 11, 2005, the

15

Magistrate Judge heard argument on this motion. (ECF No. 202.) On

16

December 1, 2006, having allowed time for supplemental briefing,

17

the Magistrate Judge granted the motion in part, permitting an

18

evidentiary hearing to proceed on petitioner’s claim 2

19

(ineffective assistance of counsel at the guilt phase, based on

20

failure to adequately investigate and present evidence that would

21

support a mental state defense), claim 3 (ineffective assistance

22

of counsel at the guilt phase, based on his attorneys’ failure to

23

develop and present a coherent trial strategy), claim 25

24

(interference with petitioner’s Sixth Amendment right to counsel,

25

due to jailers’ decision to take petitioner off of anti-anxiety

26

medications prior to the penalty phase), claims 28 and 29

27

(ineffective assistance of counsel at the penalty phase, based on

28

failure to investigate and present evidence regarding
2

1

petitioner’s mental health, his use of drugs and alcohol, and his

2

past history), and claim 44 (alleged violation of petitioner’s

3

Fifth and Fourteenth Amendment rights, based on contention that

4

jury members saw petitioner shackled, despite judge’s instruction

5

that he not be shackled in the courtroom), as well as certain

6

allegations in his claim 7 (ineffective assistance of counsel,

7

evinced by a failure to object when the prosecutor vouched for a

8

key witness’s credibility) and claim 42 (alleged violation of

9

petitioner’s Sixth Amendment rights, due to juror misconduct in

10

communicating with her minister, in violation of the Sixth

11

Amendment). (ECF No. 214.)

12

Both sides filed motions for reconsideration of this order,

13

which were in turn referred to this court. (ECF Nos. 217, 218.)

14

On December 13, 2007, the court denied both motions. (ECF

15

No. 227.)

16

On June 20, 2008, respondent filed an expert witness

17

disclosure regarding Dr. Reese T. Jones, M.D., whose testimony at

18

the evidentiary hearing is the subject of the instant motion for

19

reconsideration. (ECF No. 298.) Dr. Jones was then a Professor of

20

Psychiatry at the University of California-San Francisco School

21

of Medicine.1 (“Reese Jones Declaration” ¶ 1, ECF No. 298-1.)

22
23

On August 28, 2008, petitioner took Dr. Jones’s deposition.
(“Reese Jones Deposition,” ECF No. 384.)

24

On October 31, 2008, petitioner filed a document entitled

25

“Motion in Limine Regarding Claims 2, 3, 7, 25, 28 and 29,” in

26

which petitioner objected, inter alia, to the admission of

27
1

28

The court does not know whether Dr. Jones remains employed in
this capacity.
3

1

Dr. Jones’s testimony at the evidentiary hearing. (ECF No. 371.)

2

Petitioner’s objections were as follows:

3

1. As a psychiatrist, Dr. Jones was not qualified to give

4

expert opinions regarding neurology or neuropsychology.

5
6

2. Dr. Jones ought to be restricted to testifying solely

7

regarding conclusions contained within his expert report.

8
9
10

3. Dr. Jones reviewed petitioner’s medical records from San
Quentin Prison, in violation of federal privacy laws.

11
12

4. Dr. Jones failed to bring to his deposition all of the

13

materials he had reviewed and relied upon in forming his

14

conclusions, and failed to supplement his testimony with

15

this information post-deposition. (Id. at 12-18.)

16

On November 7, 2008, respondent filed an opposition disputing

17

each of these objections. (ECF No. 380.)

18

Upon considering petitioner’s objections, the Magistrate

19

Judge ordered respondent to file a declaration from Dr. Jones

20

(i) summarizing his qualifications to testify in the fields of

21

neurology and neuropsychology and (ii) indicating whether he had

22

provided petitioner with all of the documents he reviewed. (ECF

23

No. 388.) The Magistrate Judge also ordered that Dr. Jones’s

24

testimony be limited to the subject matter of his expert report

25

and deposition, with the proviso that, in rebuttal, he could

26

testify outside the scope of these documents to the extent that

27

petitioner’s experts exceeded them. (Id.) On November 18, 2008,

28
4

1

respondent filed the declaration of Dr. Jones, as ordered. (ECF

2

No. 390.)

3

In an order dated May 12, 2009, the Magistrate Judge denied

4

without prejudice petitioner’s request to exclude Dr. Jones’s

5

testimony. (ECF No. 470.) On August 3 & 4, 2009, the Magistrate

6

Judge heard testimony from Dr. Jones regarding petitioner’s

7

claims 2 and 25. (ECF Nos. 497-98, 502-503.) At the hearing,

8

petitioner objected to Dr. Jones’s qualifications to testify as

9

an expert under Fed. R. Evid. 702 (“Reese Jones Testimony” 102-

10

119, ECF No. 502.) The Magistrate Judge overruled the objection

11

without prejudice, but announced her willingness to receive

12

briefing on the question. (Id. 120.) On August 5, 2009, the

13

Magistrate Judge issued an order setting a briefing schedule on

14

the question. (ECF No. 500.)

15

On October 23, 2009, pursuant to the briefing schedule,

16

petitioner renewed his motion to exclude Dr. Jones’s testimony,

17

contending that it should have been excluded under Fed. R.

18

Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579

19

(1993). (ECF No. 511.) On August 10, 2010, the Magistrate Judge

20

denied the renewed motion. (“Order,” ECF No. 524.) On September

21

23, 2010, petitioner filed the request for reconsideration that

22

is presently before the court. (“Request,” ECF No. 532.) On

23

October 22, 2010, respondent filed an opposition. (“Opposition,”

24

ECF No. 542.) The Request was then taken under submission by this

25

court.

26
27

On December 4, 2013, the Magistrate Judge issued findings
and recommendations regarding petitioner’s habeas corpus

28
5

1

petition.2 (ECF No. 632.) She therein recommends denial of

2

petitioner’s claims 2, 3, 4, 5, 7, 25, 37, 42, and 44, and

3

resumption of the evidentiary hearing on petitioner’s claims 28

4

and 29. While the Magistrate Judge’s findings and recommendations

5

cannot, and do not, influence the court’s ruling herein, it bears

6

mention that the findings and recommendations at no point refer

7

to Dr. Jones’s testimony, and the Magistrate Judge appears not to

8

have relied on Dr. Jones’s testimony in any way. (Id.)

9

Respondent’s objections to these findings and recommendations

10

also make no reference to Dr. Jones’s testimony. (ECF No. 640.)

11

The court also notes that Cullen v. Pinholster, 563 U.S. __,

12

131 S. Ct. 1388 (2011), decided after Dr. Jones gave his

13

testimony, bears on the ultimate admissibility of Dr. Jones’s

14

testimony. Under Pinholster, a federal court that is evaluating a

15

capital habeas petition may not consider evidence which was not

16

before the state court in making a determination as to whether

17

the state court decision was contrary to law or unreasonable (as

18

28 U.S.C. § 2254 defines those terms). In other words, Dr.

19

Jones’s testimony could only be considered if the court overruled

20

the Magistrate Judge’s recommendations that it deny petitioner’s

21

claims 2 and 25. So even if the court were to grant petitioner’s

22

motion herein, the net effect would only be to strike Dr. Jones’s

23

testimony from the record until such time as the Magistrate Judge

24

had to revisit the issue, a contingency which might never occur.

25

////

26
27
28

2

Objections to these findings and recommendations were initially
due within 60 days. (ECF No. 632.) Petitioner has moved four
times for an extension of time to file his objections, which are
currently due no later than July 7, 2014. (ECF No. 641.)
6

1

II. STANDARDS

2

Petitioner’s reconsideration request has been under

3

submission for nearly four years. In considering it, the court

4

will apply the legal standards presently in effect, rather than

5

those that were in effect when the challenged decision was

6

rendered. In doing so, the court follows the general principle

7

that “‘the court must decide according to existing laws, and if

8

it be necessary to set aside a judgment, rightful when rendered,

9

but which cannot be affirmed but in violation of law, the

10

judgment must be set aside.’” Henderson v. United States, __ U.S.

11

__, 133 S. Ct. 1121, 1126 (2013) (quoting United States v.

12

Schooner Peggy, 1 Cranch 103, 110 (1801) (Marshall, C.J.)).

13

Accord Tully v. Mobil Oil Corp., 455 U.S. 245, 247 (1982) (“The

14

normal rule in a civil case is that we judge it in accordance

15

with the law as it exists at the time of our decision.”).

16
17
18
19
20
21
22

A. Standard re: reconsideration
28 U.S.C. § 636(b)(1)(A) provides:
Notwithstanding any provision of law to the
contrary . . . a judge may designate a
magistrate judge to hear and determine any
pretrial matter pending before the court,
except [certain specified matters]. A judge
of the court may reconsider any pretrial
matter under this subparagraph (A) where it
has been shown that the magistrate judge’s
order is clearly erroneous or contrary to
law.

23
Fed. R. Civ. P. 72(a) similarly provides:
24
25
26
27
28

When a pretrial matter not dispositive of a
party’s claim or defense is referred to a
magistrate judge to hear and decide, the
magistrate judge must promptly conduct the
required proceedings and, when appropriate,
issue a written order stating the decision.
[. . .] The district judge in the case must
7

1
2
3

consider timely objections and modify or set
aside any part of the order that is clearly
erroneous or is contrary to law.
“The way in which parties may object to magistrates’ rulings

4

under Rule 72(a) . . . is governed by local rules.” 12 Charles

5

Alan Wright & Arthur Miller, Federal Practice and Procedure:

6

Civil § 3069 (2d ed. 2014).

7

Under Local Rule 303(c), “A party seeking reconsideration of

8

the Magistrate Judge’s ruling shall file a request for

9

reconsideration by a Judge . . . . Such request shall

10

specifically designate the ruling, or part thereof, objected to

11

and the basis for that objection.” Local Rule 303(f) provides

12

that “[t]he standard that the assigned Judge shall use in all

13

such requests is the ‘clearly erroneous or contrary to law’

14

standard set forth in 28 U.S.C. § 636(b)(1)(A).”

15

An order is “clearly erroneous” if “although there is

16

evidence to support it, the reviewing court on the entire

17

evidence is left with the definite and firm conviction that a

18

mistake has been committed.” U.S. v. U.S. Gypsum Co., 333 U.S.

19

364, 395 (1948). “[R]eview under the ‘clearly erroneous' standard

20

is significantly deferential . . . .” Concrete Pipe and Prods. v.

21

Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993).

22

Under the “contrary to law” standard, a district court may

23

conduct independent review of purely legal determinations by a

24

magistrate judge. Computer Econ., Inc. v. Gartner Grp., Inc., 50

25

F. Supp. 2d 980, 983 (S.D. Cal. 1999) (Whelan, J.).

26
27
28
8

1

The movant’s mere disagreement with a ruling is not grounds

2

for reconsideration. U.S. v. Westlands Water Dist., 134 F. Supp.

3

2d 1111, 1131 (E.D. Cal. 2001) (Wanger, J.).

4

B. Standard re: admission of expert testimony

5

In determining whether the testimony of an expert is

6

admissible under Federal Rule of Evidence 702,1 the court must

7

apply the standards developed in Daubert, 509 U.S. at 579, Kumho

8

Tire Co. v. Carmichael, 526 U.S. 137 (1999), and their progeny.

9

Under Rule 702:

10

A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:

11
12

(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact in issue;

13
14
15

(b) the testimony
facts or data;

16
17

is

based

on

sufficient

(c) the testimony is the product of reliable
principles and methods; and

18

(d) the expert has reliably applied the
principles and methods to the facts of the
case.3

19
20
21

The proponent of expert testimony has the burden of establishing

22

that these requirements for admissibility are met by a

23

1

24

Hereinafter, the term “Rule” refers to the applicable Federal
Rule of Evidence.
3

25
26
27
28

This (current) version of Rule 702 reflects amendments enacted
in 2011 that were “intended to be stylistic only [and not
intended] to change any result in any ruling on evidence
admissibility.” Fed. R. Evid. 702, Advisory Committee’s Note to
the 2011 Amendments. While the challenged Order relies on Rule
702 as it read in 2010, the change has no substantive effect on
the court’s analysis herein.
9

1

preponderance of the evidence. Fed. R. Evid. 702, Advisory

2

Committee’s Note to the 2000 Amendments. Rule 702 “does not

3

distinguish between scientific and other forms of expert

4

testimony. The trial court’s gatekeeping function applies to

5

testimony by any expert.” Id. (citing Kumho Tire, 526 U.S. at

6

141).

7

Under Daubert, the court exercises its gatekeeping function

8

through conducting a two-step assessment: first, it determines

9

whether the proposed expert’s testimony is reliable, and second,

10

whether it is relevant. 509 U.S. at 592-593.

11

District courts have great flexibility in choosing which

12

factors to apply in assessing the admissibility of expert

13

testimony. “[T]here are many different kinds of experts, and many

14

different kinds of expertise.” Kumho Tire, 526 U.S. at 150. “We

15

can neither rule out, nor rule in, for all cases and for all time

16

the applicability of the factors mentioned in Daubert, nor can we

17

now do so for subsets of cases categorized by category of expert

18

or by kind of evidence. Too much depends upon the particular

19

circumstances of the particular case at issue.” Id.

20

Nevertheless, “nothing in either Daubert or the Federal

21

Rules of Evidence requires a district court to admit opinion

22

evidence that is connected to existing data only by the ipse

23

dixit of the expert.” General Elec. v. Joiner, 522 U.S. 136, 146

24

(1997). The court may conclude that “there is simply too great an

25

analytical gap between the data and the opinion proffered.” Id.

26

Ultimately, district courts have considerable discretion to

27

admit or exclude expert testimony. See id.

28

////
10

1

III. ANALYSIS

2

Petitioner seeks reconsideration of the Order denying his

3

request, based on Rule 702 and Daubert, to exclude Dr. Jones’s

4

testimony. The crux of petitioner’s argument is that “the

5

Magistrate Judge abandoned the gatekeeping function, and failed

6

to hold Respondent to its burden. In the eight-page [O]rder

7

admitting Dr. Jones’s opinions, the Magistrate Judge never made

8

the findings required by Rule 702 . . . .” (Request 5.)

9
10

A. Was it clearly erroneous or contrary to law for the
Magistrate Judge to admit Dr. Jones’s testimony
regarding petitioner's claim 2?

11

Petitioner asserts, in his claim 2, that he received

12

ineffective assistance of counsel at the guilt phase of trial,

13

due to his attorneys’ failure to adequately investigate and

14

present evidence that would support the defense that he lacked

15

the mental state necessary to commit first-degree murder.

16

Petitioner contends that the evidence in question “included, but

17

was not limited to, the following: neuropsychological deficits;

18

developmental derailment[;] maternal disillusionment and

19

abandonment; paternal corruptive influence and constructive

20

abandonment; alcohol and drug dependence; pathological responses

21

to intoxication; and, intoxication and psychological disturbance

22

at the time of the offense.” (Second Amended Petition ¶ 227.)

23

In his expert witness disclosure, dated June 11, 2008,

24

Dr. Jones addresses, inter alia, the following: “Neurobehavioral

25

issues that relate to questions of competence. Is Frye brain-

26

damaged? How seriously impaired is his mental capacity?” (Reese

27

Jones Declaration ¶ 14.) After presenting a summary and analysis

28
11

1

of various records and evidentiary items, Dr. Jones concludes as

2

follows:

3
4
5
6
7
8
9

My opinion is that this summary of Mr. Frye’s
complex behaviors just before and during the
murders and during the weeks following them
illustrates that Mr. Frye [sic] capable of
carrying out complex, planned and sustained
behaviors, and assess [sic] alternatives and
consequences of his actions. Even when
intoxicated and despite the certain events in
his medical history and his life emphasized
by petitioner’s experts that lead them [sic]
conclude that he was in many respects not
competent. (Id. ¶ 37.)

10
11

In his August 7, 2008 deposition, Dr. Jones again adopted the

12

opinions presented in his expert witness disclosure, agreeing

13

that it “contain[s] a complete statement of all opinions [I]’ll

14

express in [my] testimony in this case,” and stating that

15

“nothing has changed since” its issuance. (Reese Jones Deposition

16

9:10-15.) He then added, “[A]s I say in paragraph 37,

17

[petitioner]’s behaviors in the real world as he performed the

18

crime and . . . fled from it, really make the point that the

19

impairments hypothesized . . . primarily don’t really fit

20

[petitioner]’s ability to perform.” (Id. 25:22 - 26:3.)

21

At the subsequent evidentiary hearing, held on August 3 & 4,

22

2009, counsel for respondent confirmed that Dr. Jones’s testimony

23

would be presented in connection with claim 2, as well as claim

24

25. (Reese Jones Testimony 8:23-9:4.) Dr. Jones testified therein

25

that the opinion expressed in his June 11, 2008 expert witness

26

disclosure had not been changed “one whit” by materials provided

27

to him subsequently. (Id. 69:8-13.)

28
12

1

1. Petitioner’s argument misconstrues the record

2

Petitioner significantly misconstrues the record. In

3

response to petitioner’s objections at the evidentiary hearing,

4

the Magistrate Judge invited the parties to brief the issue of

5

whether Dr. Jones’s testimony was admissible under Rule 702 and

6

Daubert. In his opening brief, petitioner devotes only half a

7

page to claim 2:

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Respondent asserted the [sic] Dr. Jones was
being offered as part of the State’s case
regarding . . . Claim 2 “to the extent it
talks about the investigation concerning
mental
state
defenses.”
[citation
to
transcript
of
evidentiary
hearing.]
Dr. Jones, however, never testified that he
was asked to form an opinion regarding mental
state defenses, and there is no mention of
any mental state defense in his report.
During his voir dire examination and direct
examination, Dr. Jones mentioned no issue
other than competency.
Petitioner
renews
his
objection
to
Dr. Jones’s opinions to the extent they are
offered on the issue of mental state defenses
as there was no mention of that issue in his
report.
Additionally,
in
that
Dr. Jones
confined his opinions to the issue of
competence, his testimony is not probative on
the question [of] whether trial counsel
unreasonably failed to investigate viable
mental state defense to liability or penalty.
[citation
to
transcript
of
evidentiary
hearing.] (“Petitioner’s Opening Brief” 7,
ECF No. 511.)

24

However one may construe these objections, they are not based on

25

Rule 702 or Daubert. Here, petitioner repeatedly contends that

26

there was “no mention” of mental state defenses in Dr. Jones’s

27

expert report. He makes the same contention in his reply brief,

28

claiming, “[T]here was no mention of mental state defenses in
13

1

[Dr. Jones’s] report.” (“Petitioner’s Reply Brief” 12, ECF

2

No. 513.) Petitioner’s assertion is simply false. As quoted

3

above, at his deposition, Dr. Jones stated that his opinion in

4

paragraph 37 of his expert report bore on petitioner’s “ability

5

to perform” the crime. (Reese Jones Deposition 25:22-26:3.) The

6

reference to mental state defenses is clear. The Magistrate Judge

7

reached a similar conclusion, writing that Dr. Jones “opine[d]

8

about petitioner’s mental state relevant to claim 2.” (Order 4.)

9

2. The Magistrate Judge’s ruling regarding claim
2 was neither clearly erroneous nor contrary
to law

10
11

Petitioner had his opportunity to brief the issue of the

12

admissibility of Dr. Jones’s testimony, under Rule 702/Daubert,

13

with respect to claim 2. He failed to do so. It was then left to

14

the Magistrate Judge to respond to the argument that petitioner

15

did make, given that it was based on a demonstrably false

16

assertion. The Magistrate Judge chose to construe petitioner’s

17

argument as one regarding relevance, and concluded that,

18

“Testimony regarding petitioner’s mental abilities at the time of

19

the crimes is relevant to the prejudice component of petitioner’s

20

assertion of ineffective assistance of counsel in claim 2.”

21

(Order 4.)

22

Under these circumstances, the court, in its reviewing

23

function, is not “left with the definite and firm conviction that

24

a mistake has been committed,” U.S. Gypsum, 333 U.S. at 395, and

25

therefore finds that the Magistrate Judge’s decision regarding

26

petitioner’s objection was not clearly erroneous.

27
28

Further, the court finds that the Magistrate Judge committed
no error of law. Rule 702(a) includes as an admissibility
14

1

requirement that “the expert’s scientific, technical, or other

2

specialized knowledge will help the trier of fact to understand

3

the evidence or to determine a fact in issue.” Fed. R. Civ.

4

P. 702(a).

5

Petitioner asserts that the Magistrate Judge erred by

6

conflating this requirement with that of relevance. He writes,

7

“Rule 702’s ‘helpfulness’ standard requires a valid scientific

8

connection to the pertinent inquiry as a precondition to

9

admissibility. [citation to Daubert, 509 U.S. at 591-92.]

10

Contrary to Daubert[], the Order equates helpfulness with mere

11

relevance. The Order makes no finding of a valid scientific

12

connection between Dr. Jones’s opinions and the issues raised in

13

Claim 2.” (Request 6.)

14

Petitioner is incorrect. The Magistrate Judge did not

15

“equate helpfulness with mere relevance,” but simply responded to

16

the argument that petitioner put forward. (Id.) Petitioner

17

himself failed to put forward any argument regarding helpfulness

18

or any other aspect of Rule 702. Petitioner’s post-hoc attempt,

19

on reconsideration, to raise arguments that he should have raised

20

in his initial briefing is unavailing.

21

Accordingly, the court will affirm the Magistrate Judge’s

22

ruling regarding the admissibility of Dr. Jones’s testimony

23

regarding petitioner’s claim 2.

25

B. Was it clearly erroneous or contrary to law for the
Magistrate Judge to admit Dr. Jones’s testimony regarding
petitioner’s claim 25?

26

According to petitioner, he was administered prescription

27

anti-anxiety medication during trial. He asserts, in his claim

28

25, that his jailers took him off this medication prior to the

24

15

1

penalty phase, thereby impairing his ability to assist his

2

attorneys and consequently interfering with his Sixth Amendment

3

right to counsel. (Second Amended Petition ¶¶ 663-678.)

4

A criminal defendant is only competent to stand trial if he

5

“‘has sufficient present ability to consult with his lawyer with

6

a reasonable degree of rational understanding . . . and a

7

rational as well as factual understanding of the proceedings

8

against him.’” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)

9

(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

10

According to his expert witness disclosure, dated June 11,

11

2008, Dr. Jones “was asked by the California Department of

12

Justice to review case records of the petitioner . . . and to

13

offer [his] professional opinions concerning [petitioner’s]

14

mental condition and competence during his trial in 1988 when he

15

was charged with two counts of murder.” (Reese Jones Declaration

16

¶ 3.) Dr. Jones addresses, inter alia, the issue of petitioner’s

17

competence during the penalty phase, as follows:

18
19
20
21
22
23
24
25
26
27

Administration of therapeutic medications
during his trial was for a brief time.
Because of disturbed sleep and increasing day
time anxiety developing very soon after he
learned that he had been found guilty
[petitioner] was prescribed, for three to
four successive evenings, small bedtime doses
of Ativan (2 mg), a commonly prescribed antianxiety and sedative medication. When that
small and brief a dose of Ativan was
stopped[,] not significant withdrawal effects
would occur. (Id. ¶ 8.)
Dr. Jones then concludes, “My opinion is that the descriptions of
his behavior and mental state during the trial did not indicate
he was experiencing a degree of mental disorder that would impair

28
16

1

competence,” (id. ¶ 9), and that “[petitioner] was competant

2

[sic] during the trial . . . .” (Id. ¶ 12.)

3

As set forth above in the discussion of petitioner’s claim

4

2, at a subsequent deposition, Dr. Jones re-adopted the opinions

5

presented in his expert witness disclosure, and at evidentiary

6

hearing, he confirmed that these opinions remained unchanged by

7

materials he had subsequently reviewed.
1. The Magistrate Judge’s application of Rule
702(a) was neither clearly erroneous nor
Contrary to law

8
9

The first requirement under Rule 702 for admission of expert

10
11

testimony is that “the expert’s scientific, technical, or other

12

specialized knowledge will help the trier of fact to understand

13

the evidence or to determine a fact in issue.” Fed. R. Evid.

14

702(a).4
The Magistrate Judge found that Dr. Jones’s testimony

15
16

satisfied this requirement, writing:

17

Petitioner first argues Dr. Jones’ testimony
is not relevant because it addresses only
petitioner’s
“capacity”
for
competence.
Petitioner spends a great deal of time
arguing
that
Dr. Jones’
testimony
is
irrelevant because he considered petitioner’s
capacity
for
competence
as
opposed
to
petitioner’s
competence
on
the
day
in
question. For several reasons, petitioner’s
arguments
are
not
persuasive.
First,
petitioner’s “capacity for competence” is
relevant to whether or not petitioner was
competent on the day in question. His

18
19
20
21
22
23
24
25
26
27
28

4

Under the 2010 version of the Rule, the equivalent provision
required that “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Again, the difference
in wording has no discernible substantive significance for the
court’s analysis.
17

1

capacity is not definitive; and it may not
even be particularly helpful depending on the
entire record relevant to claim 25. However,
it cannot be said that Dr. Jones’ testimony
is so irrelevant that it has no “potential to
assist the trier of fact.” [citation to Rule
702.] (Order 5.)

2
3
4
5
6

Petitioner argues that, in reaching this conclusion, the

7

Magistrate Judge “applied an incorrect legal standard to admit

8

Dr. Jones’s testimony over [p]etitioner’s objection that his

9

opinions about capacity for competence would not assist the trier

10

of fact.” (Request 7.)

11

The court begins by acknowledging that this passage

12

misquotes Rule 702: as then worded, the relevant clause did not

13

read “potential to assist,” but “will assist.” But the

14

misquotation is of little import. It is clear enough from the

15

Order that the Magistrate Judge viewed Dr. Jones’s testimony as

16

being helpful in some small measure in determining petitioner’s

17

competence at the penalty phase. Given the deferential standard

18

of review on reconsideration, Concrete Pipe, 508 U.S. at 622,

19

this court is not “left with the definite and firm conviction

20

that a mistake has been committed.” U.S. Gypsum Co., 333 U.S. at

21

395. And while it would have been desirable for the Magistrate

22

Judge to more explicitly state that Dr. Jones’s testimony would

23

be helpful, the omission is too minor to be deemed “contrary to

24

law.” Under these circumstances, neither remand nor reversal is

25

merited.

26

////

27

////

28
18

1

2. The Magistrate Judge’s application of Rule
702(b) was neither clearly erroneous nor
contrary to law

2
3

The second requirement under Rule 702 for admission of

4

expert testimony is that “the testimony is based on sufficient

5

facts or data.” Fed. R. Evid. 702(b). Petitioner contends that

6

the Magistrate Judge’s findings were insufficient to meet this

7

standard.

8
9
10

The Order provides in pertinent part:
Dr. Jones did not base his opinion on pure
speculation.
According
to
respondent,
Dr. Jones reviewed:

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

transcripts
from
Petitioner’s
state
competency trial; various reports written
by mental health professionals for both
sides at the time of trial; various
medical records that predated the trial;
factual summaries of trial testimony from
all three phases of the state trial;
statements from jail personnel in contact
with Petitioner during the state trial;
evaluations of Petitioner conducted by
San Quentin personnel shortly after the
trial and for a few years thereafter;
current reports – including test results
and family interviews – generated by
Petitioner’s mental state witnesses and
social historian. [citation to record.]
That
Dr. Jones
could,
or
should,
have
reviewed more data goes to the weight, not
the admissibility of his opinions. See
Coleman v. De Minico, 730 F.2d 42, 46 n. 4
(1st Cir. 1984) (“that [the expert] [based]
his opinions . . . on sufficient, albeit
incomplete facts . . . take[s] his opinions
outside
the
realm
of
mere
guess
and
conjecture.”) (Order 5-6.)

26
27

Petitioner challenges this application of Rule 702(b) on two

28

grounds. First, he argues that the Magistrate Judge “declined to
19

1

make a finding as to whether Dr. Jones relied upon sufficient

2

facts or data, the first prong of Rule 702’s three-part test for

3

reliability.”5 (Request 8.) The court disagrees. This line of

4

argument is quite similar to that advanced by petitioner in

5

challenging the application of Rule 702(a), discussed supra.

6

Again, while the Order lacks an explicit statement that

7

Dr. Jones’s testimony was “based on sufficient facts or data,” it

8

is clear enough from the Magistrate Judge’s recital of Dr.

9

Jones’s sources that she implicitly found the evidentiary basis

10

for Dr. Jones’s opinion sufficient. The Magistrate Judge has not

11

“declined to make [the requisite] finding.” She has simply not

12

made the statement as explicit as petitioner would like. Such an

13

omission is neither clear error nor contrary to law.6

14

Similarly, the court sees nothing erroneous or contrary to

15

law in the assertion that “[whether] Dr. Jones could, or should,

16

have reviewed more data goes to the weight, not the admissibility

17

of his opinions.” (Order 6.) Rule 702(b) requires, as a threshold

18
19

5

Due to the 2011 amendment to the Rule, this requirement is now
the second prong of Rule 702’s four-part test.

20
21
22
23
24
25
26
27

6

Respondent makes precisely this point, writing:
Petitioner’s assertion that the [M]agistrate
[J]udge required only that Dr. Jones not have
based his opinion on pure speculation is much
too narrow a reading of what the Order
actually explained. Read in the context of
the entire section about reliability, the
Order
listed
the
various
sources
of
information upon which Dr. Jones relied and
cited case law recognizing that retrospective
competence determinations may be made on data
like that used by the doctor. This was not
error. (Response 5.)

28
20

1

for admissibility, that an expert’s “testimony is based on

2

sufficient facts or data.” Even if a court finds that this

3

admissibility requirement is met, nothing bars the testimony’s

4

opponent from then attacking the sufficiency of the facts or data

5

on which the expert relied. The challenged statement does not

6

signify that the Magistrate Judge watered down Rule 702(b)’s

7

requirements; it merely restates an elementary principle of law.

8
9

Accordingly, the Magistrate Judge’s citation to Coleman, 730
F.2d at 42, is of little import. While that opinion mainly

10

applies pre-Daubert standards for admissibility, the portion

11

cited in the Order goes to the ability of opposing counsel to

12

subject an expert to “vigorous cross-examination,” thereby

13

allowing the finder of fact to “weigh [the expert’s] testimony in

14

light of the evidence and the plausibility of the inferences that

15

[the expert] had drawn therefrom.” Id. Surely petitioner does not

16

mean to suggest that Rule 702’s post-Daubert formulation

17

precludes an attorney from attacking an expert’s sources once

18

that expert is permitted to testify?

19

To sum, the court finds that the Magistrate Judge’s

20

application of Rule 702(b) was neither clearly erroneous nor

21

contrary to law.

22
23
24

3. In admitting Dr. Jones’s testimony, the
Magistrate Judge satisfied the requirements
of Rule 702(c) and (d).
The third requirement under Rule 702 for admission of expert

25

testimony is that “the testimony is the product of reliable

26

principles and methods.” Fed. R. Evid. 702(c). The fourth

27

requirement is that “the expert has reliably applied the

28
21

1

principles and methods to the facts of the case.” Fed. R.

2

Evid. 702(d).

3

The Order cites two Ninth Circuit cases in its discussion of

4

the reliability of Dr. Jones’s testimony: Odle v. Woodford, 238

5

F.3d 1084, 1089-90 (9th Cir. 2001) and Boyde v. Brown, 404 F.3d

6

1159 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005).

7

In Odle, the Ninth Circuit reaffirmed its previous holdings

8

that “retrospective competency hearings may be held when the

9

record contains sufficient information upon which to base a

10

reasonable psychiatric judgment.” 238 F.3d at 1089-90. Testimony

11

that could be considered in a “fair” retroactive hearing, the

12

appeals court held, included declarations by expert witnesses who

13

had testified at trial, declarations by expert witnesses who had

14

examined the petitioner subsequently, and medical records,

15

psychiatric reports, and jail records submitted at trial. Id. at

16

1090. The petitioner in Odle was tried and convicted in 1983; on

17

remand, the soonest a retrospective competency hearing could be

18

held would have been 2001, some eighteen years later. Id. at

19

1086.

20

In Boyde, 404 F.3d at 1159, the petitioner sought a

21

retrospective evidentiary hearing on the issue of his competency

22

by “offering the affidavits of . . . a psychotherapist, and . . .

23

a psychiatrist, who examined him roughly ten years after his

24

trial.” Id. at 1166. After reviewing the affidavits, the district

25

court found that the affidavits did not raise a sufficient doubt

26

about petitioner’s competence to trigger the need for a hearing.

27

Id. After a de novo review, the Ninth Circuit affirmed, finding

28

“abundant evidence that [petitioner] was competent at trial,”
22

1

including examinations conducted by prosecution and defense

2

psychologists prior to trial, and the failure of defense counsel

3

and the trial court to “even hint[] that [petitioner] was

4

incompetent” at the time of trial. Id. at 1167.

5

In reaching this conclusion, the Boyde panel relied heavily

6

on Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) for the

7

following propositions:

8



9

consider facts and evidence that were not available to

10
11

“In deciding [a] claim of actual incompetence, we may

the trial court before and during trial.” Id. at 608.


“[W]e disfavor retrospective determinations of

12

incompetence, and give considerable weight to the lack of

13

contemporaneous evidence of a petitioner’s incompetence

14

to stand trial.” Id.

15

Petitioner is correct that “[n]one of the three cases

16

[described above] involved a Rule 702 challenge to a psychiatrist

17

who offered testimony regarding a retrospective competence

18

determination and had testified regarding the reliability of her

19

methodology [and n]one of the cases even cited Rule 702.”

20

(Request 16.) Nevertheless, the cases are apt for the proposition

21

for which they are cited: that “the Court of Appeals for the

22

Ninth Circuit recognizes that experts may make a retrospective

23

competency determination based on data like that used by

24

Dr. Jones.” (Order 7.) Odle provides that “retrospective

25

competency hearings may be held when the record contains

26

sufficient information upon which to base a reasonable

27

psychiatric judgment.” 238 F.3d at 1089-90. Dr. Jones, here,

28

offers his opinion (i.e., his “psychiatric judgment”) regarding
23

1

petitioner’s competence, based on a review of the documents

2

described in pages 5-6 of the Order (i.e., the “record”). As

3

these documents are of the same types which the Odle panel held

4

could be considered in a “fair” retrospective competency hearing,

5

Dr. Jones’s reliance on them was neither clearly erroneous nor

6

contrary to law.

7

The question, then, is whether Dr. Jones’s conclusion that

8

petitioner was competent at the penalty phase, despite the

9

withdrawal of anti-anxiety medication, was “the product of

10

reliable principles and methods,” Fed. R. Evid. 702(c), and

11

whether Dr. Jones “reliably applied the principles and methods to

12

the facts of the case,” Fed. R. Evid. 702(d). To reach his

13

conclusion, Dr. Jones spent the “vast bulk” of 18 hours in “case

14

document review” of the documents described in pages 5-6 of the

15

Order. (Reese Jones Declaration ¶ 42; Reese Jones Deposition

16

27:20-25.) He reached a different conclusion regarding

17

petitioner’s competence at trial than did Dr. Peal, a

18

psychiatrist who had evaluated and treated petitioner, and

19

testified at trial. According to Dr. Jones, this was because he

20

placed greater weight on “what he [Dr. Jones] could learn about

21

[petitioner’s] mental state and behavior actually during the

22

trial proceedings” (which he also described as “actual behaviors,

23

examples of memory impairment, et cetera”) than did Dr. Peal,

24

whom Dr. Jones claimed emphasized petitioner’s medical history.

25

(Reese Jones Declaration ¶¶ 11-13; Reese Jones Deposition 33:21-

26

34:3.) Dr. Jones also testified that he “disagreed with

27

[Dr. Peal’s] undue reliance on historical data rather than actual

28

behavior during the period of trial . . . . It was just an
24

1

approach that I believe is not as informative in answering the

2

issue of how does someone think and behave and reason at that

3

time.” (Reese Jones Deposition 71:23-72:7.) Ultimately, Dr. Jones

4

concluded that petitioner was competent despite withdrawal of

5

anti-anxiety medications.

6

In Odle, 238 F.3d at 1089-90, the Ninth Circuit made clear

7

that lower courts may conduct retrospective competency hearings

8

based on historical data. It also found that psychiatrists are

9

permitted to review records, of the sort Dr. Jones relied upon

10

here, in order to make findings regarding a habeas petitioner’s

11

past competence. It logically follows from these holdings that a

12

methodology in which a psychiatrist reviews the approved types of

13

records and opines retrospectively as to an individual’s

14

competency is at least potentially “reliable,” as that term is

15

used in Rule 702(c) and (d).

16

Dr. Jones testified that, in the course of his review of the

17

pertinent records, he chose to give greater credence to

18

information regarding petitioner’s mental state during the trial

19

than to petitioner’s prior medical history, and that this

20

information led him to conclude that petitioner was competent. It

21

appears to the court that Dr. Jones used a rational process, one

22

that is susceptible to attack on cross-examination, as well as

23

rebuttal by petitioner’s own experts, if any. It is not “opinion

24

evidence that is connected to existing data only by the ipse

25

dixit of the expert.” Joiner, 522 U.S. at 146. Particularly in

26

light of Odle, 238 F.3d at 1089-90, the Magistrate Judge’s

27

admission of Dr. Jones’s testimony was therefore neither clearly

28
25

1

erroneous nor contrary to the law set forth in Rule 702(c) and

2

(d).
C. Comments regarding absence of jury confusion

3

The Order concludes with the following observation:
4
Many cases cited by petitioner involve
decisions by trial judges about what juries
may or may not hear. There is no issue of
jury confusion in an evidentiary hearing in a
federal habeas corpus case. This court had
and will have the opportunity at each step of
the way – during the hearing, in reading the
transcripts, and in considering the parties’
briefs – to determine just what parts, if
any,
of
Dr. Jones’
testimony
survived
petitioner’s
counsel’s
thorough
crossexamination so as to support respondent’s
arguments that petitioner was competent to
consult with his attorneys during the first
day
of
the
penalty
phase
and
that
petitioner’s counsel was not ineffective for
failing to investigate and present evidence
that petitioner lacked the mental state
necessary for first degree murder. (Order 89.)

5
6
7
8
9
10
11
12
13
14
15
16
17

Petitioner argues that this passage is contrary to law,

18

contending that the Magistrate Judge therein finds Rule 702

19

inapplicable to bench trials. Petitioner writes, “Rule 702 is not

20

concerned solely with keeping unreliable expert testimony away

21

from juries. It is concerned with keeping unreliable expert

22

testimony out of the record of federal proceedings.” (Request

23

18.)

24

Petitioner misconstrues the Order. The Magistrate Judge did

25

not find here that Rule 702’s requirements are lessened when a

26

judge, rather than a jury, is to hear the proffered expert

27

testimony. Rather, the quoted passage indicates that the

28

Magistrate Judge, having found the testimony admissible under
26

1

Rule 702, will grant it precisely the weight that it deserves.

2

Similar statements, such as “[Dr. Jones’] capacity is not

3

definitive; and it may not even be particularly helpful depending

4

on the entire record relevant to claim 25” (Order 4-5) and

5

“[t]hat Dr. Jones’ testimony might not be particularly credible

6

or persuasive after cross-examination does not require this court

7

to exclude it” (Order 8), recur throughout the Order. The court

8

interprets them not as a weakening of Rule 702’s requirements,

9

but as an assurance that, having been found admissible,

10

Dr. Jones’s opinions will be given precisely the weight that they

11

deserve. Accordingly, petitioner’s argument is unavailing.

12

IV. CONCLUSION

13
14

For the reasons set forth above, petitioner’s Request for
Reconsideration (ECF No. 532) is DENIED.

15

IT IS SO ORDERED.

16

DATED:

August 27, 2014.

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