Salcido v. Wong

Filing 39

ORDER GRANTING 29 MOTION FOR BITTAKER PROTECTIVE ORDER. Signed by Judge Maxine M. Chesney on December 10, 2012.(mmcsec, COURT STAFF) (Filed on 12/10/2012)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 RAMON BOJORQUEZ SALCIDO, 15 Petitioner, 16 17 18 Case Number 09-00586 MMC DEATH-PENALTY CASE v. ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER KEVIN CHAPPELL, Acting Warden of San Quentin State Prison, Respondent. 19 20 On August 9, 2012, Petitioner, a condemned inmate at San Quentin State Prison, filed a 21 Motion for Protective Order pursuant to Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003). On 22 August 22, 2012, Respondent filed an Opposition. On August 29, 2012, Petitioner filed a Reply. 23 For the reasons set forth below, the Petitioner’s motion will be granted. 24 25 Background The instant habeas proceeding was initiated on February 9, 2009, when Petitioner asked 26 the Court to appoint counsel and to stay his execution pending the completion of said action. 27 The next day, the Court granted Petitioner’s requests and referred the matter to the Court’s 28 Selection Board for recommendation of counsel. Petitioner was appointed counsel on August ORDER GRANTING MOTION BITTAKER PROTECTIVE ORDER 1 10, 2011. Following the Court’s resolution of issues pertaining to equitable tolling, the Court 2 directed Petitioner to file a finalized petition by August 10, 2012. 3 On August 9, 2012, Petitioner lodged with the Court a complete, unredacted version of 4 his Petition and exhibits, as well as a proposed redacted version of the documents. He also filed 5 an Administrative Motion to File Under Seal Portions of the Petition, which filing is the subject 6 of a separate order. 7 By the instant motion, Petitioner requests the Court issue a Bittaker protective order, see 8 Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), to ensure that all privileged attorney-client 9 communications and work product information disclosed in his Petition be used only for 10 purposes of litigating his Petition. He argues that without a protective order, Respondent may 11 potentially benefit from a windfall of information and unfair advantage should he be retried. 12 Respondent contends the Bittaker decision has no application outside the confines of 13 court-compelled discovery, that a protective order is not necessary because California law 14 affords Petitioner adequate protection, and the public’s right of access would be infringed if a 15 protective order were issued. Respondent further contends Petitioner’s request for a protective 16 order is foreclosed under Cullen v. Pinholster, 131 S. Ct. 1388 (2011). 17 Discussion 18 In Bittaker, the Ninth Circuit upheld a protective order that precluded the use of the 19 petitioner’s privileged materials “for any purpose other than litigating the federal habeas petition, 20 and barr[ed] the Attorney General from turning them over to any other persons or offices, 21 including, in particular, law enforcement or prosecutorial agencies.” See Bittaker, 331 F.3d at 22 717. In approving the protective order, the Ninth Circuit recognized that while the “fairness 23 principle” requires a litigant to make a limited waiver of the attorney-client privilege when he 24 puts the lawyer’s performance at issue during the course of litigation, id. at 718-19, courts must 25 “closely tailor[] the scope of the waiver to the needs of the opposing party in litigating the claim 26 in question,” id. at 720. The Ninth Circuit explained that two prevailing considerations justified 27 extending protections to privileged information disclosed during habeas litigation. First, the 28 Ninth Circuit noted that a broad waiver rule, i.e., one that does not protect privileged 2 ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER 1 information, “would no doubt inhibit the kind of frank attorney-client communications and 2 vigorous investigation of all possible defenses that the attorney-client and work product 3 privileges are designed to promote.” Id. at 722. Second, the Ninth Circuit wanted to ensure that 4 both the prosecution and defense would be put “back at the same starting gate” if the petitioner 5 won habeas relief, id. at 722-23, and “allowing the prosecution at retrial to use information 6 gathered by the first defense lawyer – including the defendant’s statements to his lawyer – would 7 give the prosecution a wholly gratuitous advantage,” id. at 724. 8 Although Bittaker dealt with a protective order in the context of court-compelled 9 discovery, the Ninth Circuit has since made clear that Bittaker’s holding “extends to the entire 10 habeas litigation, not to pretrial discovery only.” See Lambright v. Ryan, 698 F.3d 808, 820, 822 11 (9th Cir. 2012) (holding, for purposes of Fifth Amendment protection, “[i]t was not necessary for 12 [petitioner] to show that his testimony was compelled”). 13 Respondent’s other arguments advocating the denial of a protective order likewise are 14 unavailing. To the extent respondent argues that California law already affords Petitioner 15 adequate protection, see People Ledesma, 39 Cal. 4th 641 694-95 (2006), the grant of a 16 protective order would simply reinforce any protections accorded to Petitioner under state law. 17 Next, Respondent’s reliance on Pinholster is misplaced. Pinholster dealt with a narrow issue – 18 the scope of the record appropriate for review under 28 U.S.C. § 2254(d)(1). See Pinholster, 131 19 S. Ct. at 1398 (describing issue as “whether review under § 2254(d)(1) permits consideration of 20 evidence introduced in an evidentiary hearing before the federal habeas court”). The decision 21 has no bearing on the propriety of Petitioner’s request for a protective order. Finally, the 22 public’s right of access does not favor the denial of a request for a protective order. See Bittaker, 23 331 F. 3d at 725 n.9 (noting narrow waiver of privilege strikes appropriate balance among 24 interests of habeas petitioner, prosecution, and public). 25 // 26 // 27 // 28 // 3 ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER 1 Conclusion 2 For the foregoing reasons, Petitioner’s Motion is hereby GRANTED. 3 IT IS SO ORDERED. 4 Dated: December 10, 2012 5 MAXINE M. CHESNEY United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ORDER GRANTING MOTION FOR BITTAKER PROTECTIVE ORDER

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