Gardner v. Holland

Filing 6

ORDER TO SHOW CAUSE 4 5 2 3 (Illston, Susan) (Filed on 10/30/2015)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JONATHAN MICAH GARDNER, Case No. 15-cv-04695-SI Petitioner, 8 v. ORDER TO SHOW CAUSE 9 10 Re: Dkt. Nos. 1, 2, 3, 4, 5 KIM HOLLAND, Respondent. United States District Court Northern District of California 11 12 13 BACKGROUND 14 Jonathan Micah Gardner filed this pro se action for a writ of habeas corpus pursuant to 28 15 U.S.C. § 2254. The petition is now before the court for review pursuant to 28 U.S.C. §2243 and 16 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 17 Gardner’s miscellaneous requests also are before the court for consideration. 18 19 BACKGROUND 20 Gardner was convicted in Alameda County Superior Court of forcible oral copulation and 21 rape. Sentence enhancement allegations were found true. On August 29, 2012, he was sentenced 22 to 25 years to life plus 18 years in prison. 23 Gardner appealed. His conviction was affirmed by the California Court of Appeal and his 24 petition for review was denied by the California Supreme Court in 2015. (Although Gardner 25 alleges that his conviction as affirmed in 2012, the California courts’ website shows that the order 26 affirming the conviction was issued on February 2, 2015.) He then filed this action. 27 28 DISCUSSION 1 2 I. Review of Petition This court may entertain a petition for writ of habeas corpus "in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A 6 district court considering an application for a writ of habeas corpus shall "award the writ or issue 7 an order directing the respondent to show cause why the writ should not be granted, unless it 8 appears from the application that the applicant or person detained is not entitled thereto." 28 9 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 10 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 11 United States District Court Northern District of California 3 908 F.2d 490, 491 (9th Cir. 1990). 12 The petition alleges the following claims: (1) petitioner’s Sixth Amendment right to 13 confront witnesses and Fourteenth Amendment right to due process were violated when the trial 14 court refused to allow him to impeach Jane Doe with her prior convictions; (2) petitioner was 15 denied his Sixth Amendment right to effective assistance of counsel when his trial counsel failed 16 to object to prosecutorial error; and (3) cumulative error. Liberally construed, these three claims 17 are cognizable in a federal habeas action and warrant a response. 18 Gardner also alleges the following as a fourth “claim”: “This court should independently 19 review the sealed transcript to determine if the trial court erred when it withheld discovery 20 regarding Jane Doe’s communications with her therapist.” Dkt. No. 1 at 7. The California Court 21 of Appeal’s opinion explained the factual background for this claim in People v. Gardner, 2015 22 WL 433504 (Cal. Ct. App. Feb. 2, 2015). Gardner was tried in 2012 for a 2002 sexual assault of 23 Jane Doe, who was 15 years old at the time of the assault. 24 25 26 27 28 Defendant sought discovery of Jane Doe's communications with her psychotherapist, who invoked the victim/sexual assault counselor privilege codified in Evidence Code section 1035.4. Evidence Code section 1035.4 allows a trial court to order disclosure of confidential communications between a sexual assault counselor and a victim only when the trial court determines that the probative value of the information outweighs the negative effect on the victim and the treatment relationship. Application of the statute involves balancing the privacy interest of “one who considers himself or herself the victim of a sexual 2 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 assault” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1391) against the defendant's right to a fair trial. The court held an in camera hearing with the therapist under oath to determine whether Jane Doe's communications should be disclosed to the defense for possible impeachment purposes. Following the in camera hearing, the court ordered the transcript sealed and sustained the claim of privilege. Defendant asks that we independently review the sealed transcript of the hearing to determine whether the trial court erred in ruling that Jane Doe's communications with her therapist were not discoverable. The Attorney General does not object. Accordingly, we have reviewed the sealed in camera testimony and have determined that it contains no evidence that could have been helpful to the defense in impeaching Jane Doe's credibility. We find no error in the trial court's ruling. Gardner, 2015 WL 433504, at *10-11. 12 Having had a review of the evidence in question by the trial court and by the state appellate 13 court, Gardner wants another review of that same evidence in his federal habeas proceeding. 14 Gardner is asking this court to investigate and determine whether there might have been an error 15 by the trial court, and to figure out whether any such error might have violated his federally- 16 protected rights.1 This claim must be dismissed without leave to amend because it does not allege 17 the essential element of a habeas claim, i.e., a violation of Gardner’s rights “under the Constitution 18 or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 19 20 21 22 23 24 25 26 27 28 1 Gardner has not alleged that the procedure used by the state trial and appellate courts violated any of his constitutional rights. Nor does it appear that such an allegation would help him. Cf. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (“[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials”); id. at 326-27 (constitution permits judges to exclude evidence that, among other things, “poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues’”); Montana v. Egelhoff, 518 U.S. 37, 47 (1996) (defendant, not the State, bears the burden to demonstrate that the principle violated by an evidentiary rule “is so rooted in the traditions and conscience of our people as to be ranked as fundamental.”). 3 1 II. Miscellaneous Motions 2 Gardner has filed a request to file a lengthy memorandum of points and authorities in 3 support of his petition. Dkt. No. 2. The brief is 54 pages long. The excessive length is largely 4 due to his unnecessary citations to, and discussion of, state law -- in fact, the index to the 5 memorandum lists more than 40 state court cases. Federal habeas relief is unavailable for errors 6 of state law, see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and the extended state law 7 discussions are simply irrelevant to the issues this court can consider in a habeas action. However, 8 it is easier for the court to ignore the irrelevant state law discussions than to require the preparation 9 of a new brief. The request to file a lengthy memorandum is GRANTED. Dkt. No. 2. The 54- 10 page memorandum will be accepted. Petitioner’s traverse may not exceed 25 pages in length. United States District Court Northern District of California 11 Gardner has requested that counsel be appointed to represent him in this action. A district 12 court may appoint counsel to represent a habeas petitioner whenever "the court determines that the 13 interests of justice so require" and such person is financially unable to obtain representation. 18 14 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district 15 court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only 16 when the circumstances of a particular case indicate that appointed counsel is necessary to prevent 17 due process violations. See id. The interests of justice do not require appointment of counsel in 18 this action. The request for appointment of counsel is DENIED. Dkt. No. 4. 19 Finally, Gardner has requested an evidentiary hearing. The request is DENIED. Dkt. No. 20 5. There does not appear to be a need for an evidentiary hearing at this time. If, upon reading the 21 answer and traverse, the court determines that an evidentiary hearing is necessary, it will order one 22 sua sponte. 23 CONCLUSION 24 25 For the foregoing reasons, 26 1. 27 The petition states three cognizable claims for habeas relief and warrants a response. “Claim 4” is dismissed. 28 4 1 2. The clerk shall serve a copy of this order, the petition and all attachments thereto 2 upon respondent and respondent's attorney, the Attorney General of the State of California. The 3 clerk shall also serve a copy of this order on petitioner. 4 3. Respondent must file and serve upon petitioner, on or before January 22, 2016, an 5 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 6 cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a 7 copy of all portions of the court proceedings that have been previously transcribed and that are 8 relevant to a determination of the issues presented by the petition. 9 10 United States District Court Northern District of California 11 4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent on or before February 19, 2016. 5. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep 12 the court informed of any change of address and must comply with the court's orders in a timely 13 fashion. 14 15 16 6. Petitioner is cautioned that he must include the case name and case number for this case on any document he submits to this court for consideration in this case. 7. Petitioner’s request to file a long brief and to proceed in forma pauperis are 17 GRANTED. 18 evidentiary hearing are DENIED. Dkt. Nos. 4, 5. 19 20 21 22 Dkt. Nos. 2, 3. Petitioner’s motion for appointment of counsel and for an IT IS SO ORDERED. Dated: October 30, 2015 ______________________________________ SUSAN ILLSTON United States District Judge 23 24 25 26 27 28 5

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