Ervin v. Ayers

Filing 220

ORDER by Judge Claudia Wilken Granting 217 PETITIONERS MOTION FOR DISCOVERY OF RECORDED TELEPHONE CALLS.(ndr, COURT STAFF) (Filed on 4/11/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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Curtis Lee ERVIN,
Petitioner,

DEATH-PENALTY CASE
v.

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Case Number 4-0-cv-1228-CW

Kevin CHAPPELLE, Acting Warden of
San Quentin State Prison,

ORDER GRANTING PETITIONER’S
MOTION FOR DISCOVERY OF
RECORDED TELEPHONE CALLS

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Respondent.

[Doc. No. 217]

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In this capital habeas action, the Court granted

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Petitioner’s request to depose fellow condemned prisoner Gary

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Hines because it determined that “Hines’ testimony is relevant to

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Petitioner’s claims of innocence.”

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deposition took place on September 23, 2011.

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deposition, Hines testified regarding telephone calls between

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himself and staff attorneys at the California Appellate Project.

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(Doc. No. 217 at 2.)

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recorded by San Quentin State Prison; the recordings are to be

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destroyed or discarded later this year.

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instant Motion, Petitioner seeks discovery of any audiotapes or

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transcriptions of pertinent phone calls “[i]n anticipation that

(Doc. No. 189 at 10.)

The

During the

The calls were not confidential and were

(Id. at 3.)

In the

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Mr. Hines’ credibility may be called into question.”

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Neither Hines nor his counsel opposes Petitioner’s request,

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(id.), and an authorization signed by Hines is attached to

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Petitioner’s motion, (id. at 12).

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(Id. at 2.)

Respondent contends that the records Petitioner seeks are

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not relevant.

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phone calls are plainly relevant to the credibility of testimony

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regarding the calls, and they well may be relevant to the overall

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credibility of a person testifying about such calls.

(Doc. No. 218 at 2–4.)

However, recordings of

Petitioner

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therefore has established good cause for discovery of pertinent

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recordings, particularly in light of the fact that the records

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will be destroyed or discarded if the Court does not order their

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preservation.1

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Accordingly, Petitioner’s Motion is granted.

San Quentin

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State Prison shall provide to Petitioner’s counsel access to its

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recorded and transcribed telephone calls, and a copy thereof,

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between the California Appellate Project and death-row inmate

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Gary Hines (CDCR No. D-91000) for the period August 1–October 31,

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2011.

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IT IS SO ORDERED.

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DATED:

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4/11/2012
________________

______________________________
CLAUDIA WILKEN
United States District Judge

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Respondent also argues that the admissibility of the Hines
deposition has not been established and that the deposition testimony
is not properly before the Court in light of Cullen v. Pinholster, 563
U.S. ___, 131 S. Ct. 1388 (2011). (Doc. No. 218 at 2–3.) However,
there is no support for the assertion that the admissibility of
evidence is required for relevant discovery, and the Court already has
determined that, “[c]ontrary to Respondent’s contention, Pinholster
does not bar discovery in this instance,” (Doc. No. 189 at 10).