DaRosa v. Foulk

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 10/11/16 ORDERING that within 30 days of the date of this order, respondent shall file a supplemental answer; petitioner may file a supplemental traverse/reply, within 30 days thereafter. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHON DAROSA,

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No. 2: 14-cv-2287 KJN P

Petitioner,

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v.

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F. FOULK, et al.,

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ORDER

Respondent.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the parties are ordered to file

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further briefing addressing petitioner’s claim alleging that the trial court erred in failing to

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disclose the identity of confidential informants.

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On February 15, 2011, petitioner was arrested for various offenses involving drug

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possession. (CT at 318.) This arrest was based on information received by law enforcement from

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two confidential informants. (Id.) On May 10, 2011, a search warrant was served on petitioner’s

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residence based on information received from three confidential informants (different from the

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two confidential informants relied on by law enforcement in February 2011). (Id. at 318; see also

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respondent’s lodged document 1 at 4-5 (opinion of California Court of Appeal).)

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On direct appeal, petitioner argued that the trial court erred by failing to disclose the

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identities of the two confidential informants relied on by law enforcement in February 2011.
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(Respondent’s Lodged Document 1 at 4-5.) In the order affirming petitioner’s conviction, the

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California Court of Appeal noted that while petitioner had sought disclosure of the confidential

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informants who provided facts supporting a search warrant executed in May 2011, he did not

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renew that issue on appeal. (Id.)

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In the instant federal petition, petitioner challenges the trial court’s failure to disclose the

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identities of the three confidential informants who provided facts supporting the search warrant

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executed in May 2011. (ECF No. 1 at 20-21.) In the reply to the answer, petitioner argues that he

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raised this claim in his habeas corpus petition filed in the California Court of Appeal. (ECF No.

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16 at 12.) Petitioner also appears to have raised this claim in his habeas corpus petition filed in

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the California Supreme Court. (Respondent’s Lodged Document 11 at p. 11 of points and

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authorities.)

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In the answer, respondent addresses the claim raised by petitioner on direct appeal, i.e.,

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the trial court erred in failing to disclose the identities of the two confidential informants relied on

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by law enforcement to arrest petitioner in February 2011. Respondent does not address

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petitioner’s claim challenging the trial court’s failure to disclose the identities of the three

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confidential informants who provided facts supporting the search warrant executed in May 2011.

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Accordingly, respondent is ordered to file a supplemental answer addressing petitioner’s claim

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challenging the trial court’s failure to disclose the identities of the three confidential informants

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who provided facts supporting the May 2011 search warrant.

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In the answer respondent argues that, for purposes of 28 U.S.C. § 2254(d), there is no

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clearly established Supreme Court authority establishing when, if ever, a state court must disclose

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to a criminal defendant the identity of a confidential informant. For the following reasons, the

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undersigned disagrees.

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In Roviaro v. United States, 353 U.S. 53, 62 (1957), the Supreme Court held that where

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the government opposes disclosure of the identity of an informer, a trial judge must balance the

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public’s interest in protecting the flow of information against the individual's right to prepare his

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defense. The Supreme Court noted, however, that the scope of the privilege is limited. “Where

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the disclosure of an informer’s identity, or of the contents of his communication, is relevant and
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helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege

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must give way.” Id. at 60–61. The undersigned finds that the Roviaro disclosure test is clearly

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established law for purposes of 28 U.S.C. § 2254(d). See Airy v. Chappell, 2014 WL 1266153 at

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5 (N.D. Cal. 2014).

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In the supplemental answer, respondent is not precluded from arguing that Roviaro is not

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clearly established law. However, respondent shall also address the application of Roviaro to

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petitioner’s claim.

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The undersigned further observes that the trial court conducted an in camera hearing to
determine whether disclosure of the identities of the two February 2011 confidential informants

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was required. (See RT at 46.) The trial court determined that an in camera hearing regarding

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disclosure of the identities of the May 2011 confidential informants was not warranted. (Id.) In

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the supplemental answer, respondent shall address whether the trial court properly concluded that

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an in camera hearing regarding disclosure of the identities of the May 2011 confidential

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informants was not warranted. See U.S. v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000) (once

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threshold showing made, court must apply Roviaro balancing test). In other words, respondent

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shall address whether the trial court properly concluded that petitioner did not make the threshold

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showing required for an in camera hearing pursuant to Roviaro.

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Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order,

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respondent shall file a supplemental answer; petitioner may file a supplemental traverse/reply,

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within thirty days thereafter.

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Dated: October 11, 2016

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