Ervin v. Ayers

Filing 189

ORDER by Judge Claudia Wilken GRANTING PETITIONERS 178 MOTION TO DEPOSE GARY HINES, AND GRANTING IN PART AND DENYING IN PART PETITIONERS 179 MOTION FOR SUPPLEMENTAL DISCOVERY. (ndr, COURT STAFF) (Filed on 9/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CURTIS LEE ERVIN,

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No. C 00-01228 CW

Petitioner,
v.

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VINCENT CULLEN, Warden of
California State Prison at San
Quentin,

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Respondent.

United States District Court
For the Northern District of California

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________________________________/

ORDER GRANTING
PETITIONER’S
MOTION TO DEPOSE
GARY HINES, DOCKET
NO. 178, AND
GRANTING IN PART
AND DENYING IN
PART PETITIONER’S
MOTION FOR
SUPPLEMENTAL
DISCOVERY, DOCKET
NO. 179

Petitioner Curtis Lee Ervin filed a first Amended Petition
for a Writ of Habeas Corpus on September 7, 2007.

In the present

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motions, Ervin seeks the following discovery: (1) a deposition of
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Gary Hines; (2) the production of case material in the possession

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of Spencer Strellis, trial counsel for co-Defendant Robert

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McDonald, which tends to exculpate Ervin, or mitigate the penalty

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imposed on him or both; and (3) the production of personnel

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records of lead investigating officer, Sergeant Dana Weaver, by

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the East Bay Regional Parks Police Department.

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Petitioner

contends that Hines' testimony is relevant to his claims of

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innocence, numbered 32 through 34.

Respondent has opposed all

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three requests for discovery.

The East Bay Regional Parks Police

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Department was not served with the motion for the production of

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Weaver's personnel file, but nevertheless filed an opposition to

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the disclosure of the file.

Although Strellis was served with a

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subpoena duces tecum for exculpatory evidence in his McDonald

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trial records, as previously authorized by the Court, and failed

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to respond to the subpoena, he was not served with the present

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motion and has not appeared to state his position.

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BACKGROUND

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Petitioner has been sentenced to death in connection with his

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conviction for first degree murder and robbery.

Petitioner was

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found to have committed murder for financial gain, a special

United States District Court
For the Northern District of California

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circumstance rendering him eligible for the death penalty.

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McDonald, an insurance broker involved in a bitter divorce,

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allegedly hired Petitioner and two other men, Armond Jack and

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Arestes Robinson, to kill his wife.

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evidence and was granted full immunity for his cooperation.

Armond Jack turned state's

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Petitioner contends that his federal counsel have uncovered
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evidence that he suffers from organic brain damage and that he did
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not kill McDonald's wife.

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died of cancer, sought to give deposition testimony at the end of

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his life exculpating Petitioner.

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Appellate Project (CAP) represented both Petitioner and McDonald

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at the time, and refused to assist McDonald in that effort due a

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conflict of interest.

According to Petitioner, McDonald, who

However, the California

CAP reportedly told Petitioner that

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McDonald's deposition had been taken, although that was not the
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case.

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Hines, another death row inmate, befriended McDonald.

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McDonald reportedly shared with Hines that he did not hire
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Petitioner to kill his wife and Petitioner was not involved in the

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murder.

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provide testimony about Petitioner’s innocence, although these

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efforts were ultimately unsuccessful.

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before he was able to testify as to Petitioner’s lack of

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Hines attested that he helped McDonald in his efforts to

participation in the crime.

McDonald died in 1993

Hines is currently ill with terminal

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cancer and is unlikely to survive this litigation.

Hines has

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United States District Court
For the Northern District of California

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stated that he is not friends with Petitioner and they are housed
in different areas of San Quentin prison.
On March 22, 2010, the Court granted in part Ervin's motion

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for discovery.

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subpoena duces tecum to Strellis for exculpatory material in his

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possession.

The Court authorized Petitioner to issue a

However, as noted earlier, Petitioner served Strellis

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the subpoena, but Strellis never responded.

In addition, the

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Court permitted the deposition of Weaver.

Nevertheless,

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Petitioner has been unable to depose Weaver because Weaver suffers

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from advanced multiple sclerosis and, thus, has been medically

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unable to participate in a deposition.

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LEGAL STANDARD

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"A habeas petitioner, unlike the usual civil litigant in

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federal court, is not entitled to discovery as a matter of

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ordinary course."

Bracy v. Gramley, 520 U.S. 899, 904 (1997).

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However, federal courts have "the power to fashion appropriate

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modes of procedure, including discovery, to dispose of habeas

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petitions as law and justice require."
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Id. (internal quotations

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marks and citations omitted).

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Governing § 2254 Cases, a party is entitled to discovery "if, and

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to the extent that, the judge in the exercise of his discretion

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and for good cause shown grants leave to do so . . ."

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party requesting discovery must provide reasons for the request.

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Under Rule 6(a) of the Rules

Id.

The request must . . . specify any requested documents."

"A

Rules

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Governing § 2254 Cases, Rule 6(b).

Before addressing whether a

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petitioner is entitled to discovery under Rule 6(a), the court

United States District Court
For the Northern District of California

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must first identify the "essential elements" of the claim.

Bracy,

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520 U.S. at 904.

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before the court show reason to believe that the petitioner may,

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if the facts are fully developed, be able to demonstrate that he

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is entitled to relief.

Good cause exists "where specific allegations

Id. at 908-09.

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DISCUSSION
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I. Pinholster and Post-Pinholster cases
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Respondent argues that discovery cannot be permitted in light

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of the Supreme Court's recent decision in Cullen v. Pinholster,

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131 S.Ct. 1388, 1400 (2011).

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under section 2254(d)(1) permits consideration of evidence

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introduced in an evidentiary hearing before the federal habeas

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Pinholster addressed whether review

court.

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Section 2254(d) states that habeas relief on behalf of a
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state prisoner shall not be granted under any claims adjudicated

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on the merits in state court proceedings unless the adjudication

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of the claim
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(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

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28 U.S.C. § 2254(d)(1) and (2).

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Pinholster held that when the state court has decided an

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issue on the merits, "review under § 2254(d)(1) is limited to the
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record that was before the state court that adjudicated the claim

United States District Court
For the Northern District of California

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on the merits."

131 S.Ct. at 1398.

Likewise, based on the plain

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language in the statute, review under § 2254(d)(2) is limited to

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"evidence presented in the State court proceeding."

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n.7.

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denial.

Id. at 1400

Section 2254(d) applies even where there has been a summary
Id. at 1402 (citing Harrington v. Richter, 131 S. Ct.

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770, 786 (2011)).
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Nevertheless, the Supreme Court stated that "state prisoners
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may sometimes submit new evidence in federal court" although

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"AEDPA's statutory scheme is designed to strongly discourage them

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from doing so."

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applies when a petitioner did not develop the factual basis of a

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claim in state court proceedings.

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Id. at 1401.

For example, section 2254(e)(2)

28 U.S.C. § 2254(e)(2).

The

Supreme Court chose "not to decide where to draw the line between

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new claims and claims adjudicated on the merits," and noted that
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dissenting Justice Sotomayor's hypothetical involving new evidence

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of withheld exculpatory witness statements in violation of Brady

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"may well present a new claim."

Id. at 1401 n.10.
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This Court’s

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March 22, 2010 order granting discovery was largely directed at

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discovery of potential Brady evidence.

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Although Pinholster did not directly address the scope of

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discovery under Rule 6(a), courts have relied on the case to limit

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discovery in connection with petitions for habeas relief.

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See

e.g., Robinson v. Miller, 2011 WL 2193393, *2 (N.D. Cal.) (noting,

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in connection with denial of discovery, that Pinholster generally
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precludes holding an evidentiary hearing on a claim adjudicated by

United States District Court
For the Northern District of California

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the state court on its merits); Coddington v. Cullen, 2011 WL

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2118855, at *1 (E.D. Cal.); Sok v. Substance Abuse Treatment

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Facility, 2011 WL 1930408, *2 (E.D. Cal.) (finding no basis to

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permit discovery because, "pursuant to Pinholster," the court was

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"limited to reviewing only the record that was before the state

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courts"); Wilson v. Humphrey, 2011 WL 2709696, *7 (M.D. Ga.)
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("After Pinholster, if a state court decides a particular claim on
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the merits, district courts are not authorized to hold an

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evidentiary hearing in which new evidence is introduced to support

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that claim.

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that claim would be futile . . ."); Hurst v. Branker, 2011 WL

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2149470, *4 (M.D.N.C.) ("'good cause' does not exist for the

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It logically follows that conducting discovery on

discovery Petitioner seeks . . . because this Court may look only

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to the state court record in applying § 2254(d)").

These

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decisions are not controlling.

Furthermore, only Hurst addressed

a claim for habeas relief under section 2254(e)(2).

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In Hurst, the

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record demonstrated that the petitioner could not seek relief

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under section 2254(e)(2).

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The Ninth Circuit has not directly ruled on the effect of

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Pinholster on the availability of discovery, but, at least in one

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case, has held that discovery is unwarranted where habeas relief

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is precluded.

In Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2011), the

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Ninth Circuit considered an appeal from a district court's denial
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of a state prisoner's petition for habeas relief from his state

United States District Court
For the Northern District of California

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conviction for felony murder.

The court initially explained that,

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because the federal habeas petition was filed after passage of the

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AEDPA, federal habeas relief could only be granted if the state

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court decision satisfied either section 2254(d)(1) or (2).

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1254-55.

Id. at

After the court held that the Arizona Supreme Court did

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not unreasonably apply clearly established federal law, the court
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considered whether the Arizona court's factual determinations were
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unreasonable.

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the state court's factual determination, but instead contended

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that the district court should have granted his request for

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further discovery on the issue.

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had not developed the factual basis for his claim in the state

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courts.

The petitioner, however, did not directly challenge

The petitioner admitted that he

Accordingly, the court applied section 2254(e)(2), rather

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than sections 2254(d)(1) or (2).

Id. at 1258-60.

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Section 2254(e)(2) of AEDPA generally bars an evidentiary

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hearing if the applicant failed to develop the factual basis for

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the claim in state court.

Under section 2254(e)(2), a court can
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hold an evidentiary hearing only if the petitioner meets two

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requirements.

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constitutional law announced by the Supreme Court or be based on

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facts that could not have been previously discovered through the

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exercise of due diligence.

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First, the claim must rely on a new rule of

28 U.S.C. § 2254(e)(2)(A).

Second,

even if a petitioner raises a new claim or one based on a new

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factual predicate, a hearing is allowed only if "the facts
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underlying the claim would be sufficient to establish by clear and

United States District Court
For the Northern District of California

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convincing evidence that but for constitutional error, no

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reasonable fact-finder would have found the applicant guilty of

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the underlying offense."

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28 U.S.C. § 2254(e)(2)(B).

In Kemp, the Ninth Circuit first found that the petitioner
failed to meet the requirements of section 2254(e)(2), precluding

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an evidentiary hearing.

The court further held that the district

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court did not err in denying discovery because it would have been
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futile and amounted to a fishing expedition.

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rely on Pinholster to affirm the denial of discovery.

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1262.

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The court did not
638 F.3d at

Here, the Court has yet to determine whether an evidentiary
hearing is warranted with respect to any of the claims pursued in
this federal habeas petition.

Respondent asserts that the

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California Supreme Court has rejected Petitioner's claims on the
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merits.

However, "[s]ection 2254(e)(2) continues to have force

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where § 2254(d)(1) does not bar federal habeas relief."

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Pinholster, 131 S.Ct. at 1401.

Respondent has not urged, and it
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is not apparent, that Petitioner has not met the requirements for

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relief under section 2254(e)(2).

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The Advisory Committee Note for Rule 6(a) indicates that

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discovery is not necessarily limited to instances in which an

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evidentiary hearing has been granted.

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The Advisory Committee

states, "Discovery may, in appropriate cases, aid in developing

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facts necessary to decide whether to order an evidentiary hearing
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or to grant the writ following an evidentiary hearing . . ."

United States District Court
For the Northern District of California

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Rules Governing § 2254 Cases, Rule 6(a).

The committee further

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explains, "While requests for discovery in habeas proceedings

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normally follow the granting of an evidentiary hearing, there may

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be instances in which discovery would be appropriate

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beforehand. . . Such pre-hearing discovery may show an evidentiary

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hearing to be unnecessary, as when there are 'no disputed issues
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of law or fact.'"

Id.

Once it is determined that an evidentiary

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hearing is unwarranted, there may be no basis for discovery, as

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held in Kemp.

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In Blackledge v. Allison, 431 U.S. 63, 81-82 (1977), the

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Supreme Court cited with approval the Advisory Committee's comment

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on Rule 6(a).

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There, after holding that habeas relief was not

barred for state prisoners who enter a guilty plea, the Court

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noted that not every set of sufficiently pleaded allegations will
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entitle a habeas petitioner to an evidentiary hearing.

However,

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the Court stated that a district court could order discovery

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before an evidentiary hearing to determine whether a hearing would
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be unnecessary.

Id. at 81 (citing Advisory Committee Note to Rule

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6, Rules Governing Habeas Corpus Cases).

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The Eighth Amendment entails a "heightened 'need for

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reliability in the determination that death is the appropriate

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punishment in a specific case.'"

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Caldwell v. Mississippi, 472

U.S. 320, 323 (1985) (citing Woodson v. North Carolina, 428 U.S.

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280, 305 (1976) (plurality opinion).

Here, Petitioner faces the

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ultimate punishment, and his discovery requests relate to

United States District Court
For the Northern District of California

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potentially exculpatory evidence.

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contention, Pinholster does not bar discovery in this instance.

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II. Hines deposition

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Contrary to Respondent’s

Hines’ testimony is relevant to Petitioner’s claims of
innocence.

Hines stated in his declaration that MacDonald told

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him that he never hired Ervin to kill his wife, that Ervin was not
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involved in the murder, and that Ervin was not one of the two men
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he paid to kill his wife.

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the murder, this evidence would undermine the basis for

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Petitioner's conviction and sentence.

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permit Hines’ deposition now, because he is terminally ill and

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will not likely survive the duration of this litigation.

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Even though McDonald was not present at

There is good cause to

Respondent argues that the request is untimely because it was

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filed on June 6, 2011.

The Court’s December 22, 2011 order,

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Docket No. 177, set a deadline of April 1, 2011 for the completion

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of discovery.

Respondent has not established that the two month

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delay in filing the discovery motion prejudices him.
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Several

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extensions have been granted in this case, including extensions

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for Respondent.

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Respondent was aware, as of May 12, 2011, that Petitioner would

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seek to depose Hines, and that initially Respondent was unsure

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whether he would oppose the motion.

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The motion to depose Hines discloses that

Petitioner’s request to depose Hines is granted.

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III. Weaver deposition
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This Court has already authorized a deposition of Weaver, but

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United States District Court
For the Northern District of California

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at the time denied Petitioner's request for his personnel file as

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overly broad and unduly burdensome.

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for the file because Weaver is medically unable to sit for a

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deposition.

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limited discovery of Weaver's personnel file.

Petitioner renews his request

Due to this circumstance, the Court will allow
The EBRPPD shall

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disclose to Petitioner any evidence in the file indicating any on16
the-job misconduct by Weaver.

Weaver shall be notified of the

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disclosure of such evidence.

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concerns, the EBRPPD or Weaver or both may move for a protective

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order with respect to the evidence.

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support of a motion or pleading, the parties may also move to seal

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it.

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In the event that there are privacy

If the evidence is used in

The request for Weaver’s personnel records will not be denied

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based on untimeliness.

Respondent has again failed to show how he

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would be prejudiced by permitting the discovery to go forward.
Accordingly, Petitioner’s request for Weaver’s personnel file
is granted in part, pursuant to the following instructions.
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Within fourteen days of this order, EBRPPD shall review Weaver's

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personnel file for any documentation indicating misconduct on the

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job.

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the EBRPPD shall notify Weaver of Petitioner's discovery request,

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the responsive documents and this Court's order, and shall notify

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In the event that the EBRPPD identifies any such documents,

Petitioner.

Weaver may oppose the disclosure of said documents to

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Petitioner by filing a motion within fourteen days of service of
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the notification from EBRPPD.

If Weaver does not oppose the

United States District Court
For the Northern District of California

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disclosure, the EBRPPD shall immediately turn over the documents.

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If Weaver opposes the disclosure, Petitioner may respond within

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fourteen days.

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IV. Strellis trial records

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In its March 22, 2010 order, the Court found that any

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exculpatory material in Strellis’ possession would be relevant to
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Petitioner’s claims and authorized the subpoena for the materials.
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There is no need to revisit the issue, and Respondent has not

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demonstrated that requiring Strellis to respond to this discovery

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request after the initial deadline will prejudice him.

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shall serve Strellis with a copy of this order.

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of service, Strellis shall produce any responsive materials or

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Petitioner

Within ten days

provide a declaration swearing that there are none.

If he fails

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to do so, Petitioner may apply for an order for Strellis to appear
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and show cause why he should not be held in contempt.

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CONCLUSION

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Petitioner’s request to depose Hines and for an order

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requiring Strellis to produce any exculpatory material in his

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possession is GRANTED.

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Weaver's personnel records by the EBRPPD is GRANTED IN PART.

Petitioner’s request for the production of

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IT IS SO ORDERED.

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Dated: 9/8/2011

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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