Mcintosh v. Holder et al

Filing 253

ORDER GRANTING CONTINUANCE by Judge Charles R. Breyer. (crblc2, COURT STAFF) (Filed on 11/19/2018)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 RONALD J. McINTOSH, Petitioner, 9 ORDER GRANTING CONTINUANCE v. 10 11 United States District Court Northern District of California Case No. 09-cv-00750-CRB ERIC H. HOLDER, JR. et al., Respondents. 12 Presently before the Court is Petitioner’s motion to compel the federal government 13 14 (“Government”) to produce reports and other documents the Government identified as 15 responsive to this Court’s March 1, 2016 Order. See Mot. to Compel (dkt. 248) at 1. In 16 response, the Government filed a motion for summary denial, asking the Court to deny 17 Petitioner’s motion, or in the alternative, grant a 90-day continuance to allow the 18 Government extra time to respond. See Mot. for Summary Denial (dkt. 250) at 1. The 19 Court has considered the parties’ papers, relevant legal authority, and the record in this 20 case, and now DENIES the Government’s motion for summary denial, GRANTS a 14-day 21 continuance, and DIRECTS the Government to show cause as to why the discovery 22 materials should not be disclosed to Petitioner for use in state court. 23 I. BACKGROUND 24 Petitioner was convicted on December 14, 1990, of paying Drax Quartermain to 25 murder Petitioner’s business associate, Ron Ewing, who had threatened to disclose the 26 illegal business practices in Petitioner’s hedge fund. See Government’s Memorandum in 27 Support of Return to Order to Show Cause (dkt. 248-1) at 7. On July 14, 2006, Petitioner 28 filed a habeas corpus petition in the Superior Court of California, alleging that the State’s 1 failure to produce documents about Quartermain’s prior relationship with the State’s main 2 witness, David Younge, deprived Petitioner of the opportunity to show the jury that 3 Younge was not a credible witness, in violation of Brady v. Maryland, 373 U.S. 83 (1963). 4 See Mot. for Indicative Ruling (dkt. 44) at 11–13, 15. After multiple appeals, the matter 5 came before this Court for various discovery-related motions. See Order Granting Motion 6 to Produce Discovery (dkt. 63) at 2–3. One discovery motion related to an undercover FBI 7 operation in Philadelphia. See Sealed Mot. and Decl. (dkt. 192). 8 9 On March 1, 2016, in response to Petitioner’s Rule 60(b) motion, this Court found that Petitioner showed good cause to acquire certain documents for his habeas petition and ordered the Government to conduct a Brady review of the FBI files held in Philadelphia 11 United States District Court Northern District of California 10 relating to the “Limestone” investigation (a Mafia drug investigation and prosecution in 12 which Younge cooperated as a witness) and produce any Brady materials found. See 13 Order Regarding Discovery Requests for Undercover Operation (dkt. 198) at 1–2. On 14 June 27, 2016, the Government informed the Court that it had identified Brady materials 15 and will allow Petitioner’s counsel to review the documents at FBI offices under the 16 protective order that the Court entered in 2015. See Status Report by Eric H. Holder (dkt. 17 228) at 1–2. On July 8, 2016, the Government allowed Petitioner’s counsel to review 18 twenty-two pages of documents at the FBI offices, but refused to allow for copying of the 19 documents. See Mot. to Compel ¶ 9. 20 The Court found that Petitioner’s habeas claims contained at least one stand-alone 21 claim for relief under Brady that remained unexhausted. Order (dkt. 241). As a result, on 22 May 31, 2017, the Court stayed Petitioner’s action in federal court to allow Petitioner to 23 exhaust his state-court remedies. See Order Granting Motion to Stay Proceedings (dkt. 24 245) at 3. Petitioner then filed a habeas corpus petition in the Superior Court of California 25 raising three claims. See Mot. to Compel ¶ 11. At issue here is Petitioner’s third claim, 26 which alleges that the Government and the State provided benefits to Younge by 27 suppressing a San Rafael Police Department drug investigation of Younge and the Three 28 Klicks Out (“Bar”). See id. ¶ 15. 2 1 On October 5, 2018, Petitioner filed the instant motion to compel production of the 2 FBI reports that Petitioner’s counsel reviewed on July 8, 2017, arguing that the documents 3 are critical evidence for the trial in state court. See id. ¶ 18–19. The Government argued 4 that it should not be compelled to produce the documents because (1) Petitioner was 5 convicted by the State and the Government is not a party to the litigation pending in state 6 court and (2) Petitioner has waited more than two years since the Government searched for 7 the allegedly responsive documents. See Mot. for Summary Denial at 1. In the 8 alternative, the Government asks for a 90-day extension to respond to Petitioner’s motion 9 to compel. See id. 10 United States District Court Northern District of California 11 II. DISCUSSION In its motion for summary denial, the Government does not address Petitioner’s 12 arguments that the requested documents are crucial for Petitioner’s state habeas petition or 13 explain why Petitioner should not be allowed to have copies of the FBI documents. See 14 generally Mot. for Summary Denial. The Government also does not give any reasoning as 15 to why it needs ninety days to file its response besides explaining that the previous counsel 16 has retired and a new Assistant United States Attorney must take on the case. See 17 generally id. 18 A. 19 The Government requests that the Court deny Petitioner’s motion to compel Motion for Summary Denial 20 because the Government is not a party to the state court litigation and because Petitioner 21 has waited two years after reviewing the FBI documents to file a motion to compel. Mot. 22 for Summary Denial at 1. However, the Government does not explain why these facts are 23 sufficient to justify denying Petitioner’s motion to compel. 24 The Government first argues that the motion should not be directed at the 25 Government because the State, not the Government, convicted Petitioner. See id. at 1. 26 However, the Court has previously ordered the Government to produce documents and the 27 Government has complied with its orders. See Discovery Order (dkts. 187 and 190). The 28 Government’s involvement in this case is the same as its involvement two years ago. 3 Additionally, the Government claims that Petitioner has not taken any steps to 1 2 obtain the documents in over two years. See id. at 2. However, the Government fails to 3 explain why this two-year period would make Petitioner’s claims untimely or subject to 4 summary denial.1 Indeed, the Court granted Petitioner’s request to use the previously 5 produced documents if it might “support his claims that the government . . . covered up 6 start witness David Younge’s alleged perjury.” See Order Granting Motion to Stay and 7 Abey Proceedings at 1 n.1 (citing Cullen v. Pinholster, 570 U.S. 170, 206 (2013) (Breyer, 8 J., concurring) (noting that a petitioner “can always return to state court presenting new 9 evidence not previously presented”)). This should have given the Government sufficient notice that the documents produced in this Court may be used in the state court 11 United States District Court Northern District of California 10 proceedings. 12 The Government’s motion for summary denial does not sufficiently explain why 13 Petitioner should not be given the information he has requested. Accordingly, the Court 14 denies the Government’s motion for summary denial of Petitioner’s motion to compel. 15 B. 16 The Court has the discretion to grant or deny continuances. Torres v. United States, Ninety Day Continuance 17 270 F.2d 252, 253–55 (9th Cir. 1959). In deciding whether to grant a continuance, courts 18 tend to look at (1) the party’s diligence in its effort to be ready; (2) the usefulness of the 19 continuance; (3) the inconvenience of the continuance; and (4) the prejudice that might be 20 suffered as a result of the continuance. United States v. Mejia, 69 F.3d 309, 314 (9th Cir. 21 1995) (citation omitted). The Government gives no explanation for what the new Assistant 22 United States Attorney has already done to become familiar with the case or why the new 23 Assistant United States Attorney requires an additional ninety days get up to speed on the 24 case. See generally Mot. for Summary Denial. While the Government should be given the 25 26 27 28 Even though it has been two years since Petitioner’s counsel first viewed the documents, Petitioner is currently in the process of preparing for an evidentiary hearing in state court. See Reply at 3. It was only on December 13, 2017, when the State filed the Return claiming that the prosecution team knew nothing about the Bar or Younge’s investment in the Bar, Reply at 2, that Petitioner realized the need for copies of the FBI documents, at which point he reached out to the Government, id. at 3. 1 4

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