Dennis v. Ayers

Filing 285

ORDER DENYING 263 RESPONDENT'S MOTION FOR RECONSIDERATION. Signed by Judge Jeremy Fogel on 9/25/2012. (jflc2, COURT STAFF) (Filed on 9/25/2012)

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**E-Filed 9/25/2012**

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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William Michael DENNIS,

Case Number 5-98-cv-21027-JF

Petitioner,

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v.

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DEATH-PENALTY CASE

Kevin CHAPPELL, Acting Warden
of San Quentin State Prison,

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ORDER DENYING RESPONDENT’S
MOTION FOR RECONSIDERATION

Respondent.

[Doc. No. 263]

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I. BACKGROUND

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In a prior order in this capital habeas action, the Court determined that certain state

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procedural rules, including the timeliness requirement for state habeas petitions, were inadequate

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to bar federal habeas relief on at least some of Petitioner’s claims. Dennis v. Brown, 361 F.

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Supp. 2d 1124 (N.D. Cal. 2005) (Doc. No. 181). In a separate order, the Court granted

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Petitioner’s request for an evidentiary hearing. (Doc. No. 250.)

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The Supreme Court subsequently issued decisions in Walker v. Martin, 562 U.S. ___, 131

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S. Ct. 1120 (2011), and Cullen v. Pinholster, 536 U.S. ___, 131 S. Ct. 1388 (2011). In Martin,

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the Supreme Court found California’s timeliness requirement for state habeas applications to be

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adequate. 131 S. Ct. at 1131. In Pinholster, the Supreme Court held that federal habeas review

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under 28 U.S.C. § 2254(d)(1) (2012) is limited to the record that was before the state court that
Case No. 5-98-cv-21027-JF
ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION
(DPSAGOK)

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adjudicated the claim at issue on the merits. 131 S. Ct. at 1398.
In light of these decisions, this Court granted Respondent leave to move for

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reconsideration of the Court’s prior orders regarding procedural default and granting an

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evidentiary hearing. (Doc. No. 262.) Respondent has filed such a motion, (Doc. No. 263; see

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also Docs. Nos. 269 & 281–82), and Petitioner has filed an opposition, (Doc. No. 267; see also

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Docs. Nos. 280 & 284).

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II. PROCEDURAL DEFAULT
After Respondent filed his reply brief, (Doc. No. 269), the Supreme Court issued another
decision regarding procedural default, Martinez v. Ryan, 132 S. Ct. 1309 (2012). As

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demonstrated by the parties’ supplemental briefs, (Doc. No. 280 at 12–20; Doc. No. 281 at

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10–15), the relevant law remains unsettled. See, e.g., Runningeagle v. Ryan, 686 F.3d 758, 782

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n.12 (9th Cir. 2012); Runningeagle, slip op. at 1–2 (concurrently filed order remanding for

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reconsideration in light of Martinez). However, the Court need not answer at this time the

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complex questions created by the current state of the law with respect to procedural default, as

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the claims at issue likely may be resolved on the merits. Moreover, as Respondent

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acknowledges, (e.g., Doc. No. 263 at 8), even if certain claims are procedurally defaulted, the

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Court still will need to determine whether Petitioner can overcome the defaults by demonstrating

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cause and prejudice or a fundamental miscarriage of justice, and to make that determination the

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Court still will need to examine the merits of the claims. Accordingly, the Court declines to

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reconsider the issue of procedural default in isolation. Respondent may renew his motion if the

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Court ultimately finds any of the claims at issue to be otherwise meritorious.

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III. EVIDENTIARY HEARING
In Pinholster, the Supreme Court observed that “although state prisoners may sometimes

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submit new evidence in federal court,” they are “strongly discourage[d] from doing so.” 131 S.

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Ct. at 1401. This is because the “federal habeas scheme leaves primary responsibility with the

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state courts” by “channel[ing] prisoners’ claims first to the state court.” Id. at 1398–99 (internal

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quotation marks and citation omitted). Thus, a federal habeas court “analyz[ing] whether a state

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court’s adjudication resulted in a decision that unreasonably applied federal law” cannot consider
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ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION
(DPSAGOK)

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“facts not before the state court.” Id. at 1399.
Although Pinholster did not directly address the scope of evidentiary development in

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federal habeas actions, Respondent contends that its logic should be extended to prohibit

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evidentiary development in federal court of claims denied on the merits in state court. (Doc. No.

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263 at 10; Doc. No. 269 at 10–12; id. at 34–35; Doc. No. 281 at 15–16.) However, as another

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judge of this Court has observed, “Pinholster, though seemingly straightforward and

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unambiguous, actually raises more questions than it provides answers regarding a district court’s

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ability to conduct evidentiary hearings and permit new evidence in federal habeas proceedings.”

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Rodriguez v. Adams, No. 4-4-cv-2233-PJH, 2012 WL 610482, at *2 (N.D. Cal. Feb. 24, 2012).

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Indeed, Pinholster explicitly did not decide “whether a district court may ever choose to hold an

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evidentiary hearing before it determines that § 2254(d) has been satisfied.” Pinholster, 131 S. Ct.

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at 1411 n.20.

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The Court of Appeals for the Ninth Circuit outlined an approach in Gonzalez v. Wong,

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667 F.3d 965 (9th Cir. 2011), that appears to point a reasonable way forward in the present

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action. But see, e.g., Runningeagle, 686 F.3d at 773 (stating in dicta without analysis that the

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petitioner “is not entitled to an evidentiary hearing or additional discovery because his claim is

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governed by 28 U.S.C. § 2254(d)(1)”). Pursuant to Gonzalez, if additional evidence is developed

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during federal habeas proceedings, a petitioner who diligently sought factual development in

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state court, and who wishes to have the evidence considered during the district court’s

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§ 2254(d)(1) analysis, must first present the evidence to the state court if the state court remains

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open to hear the evidence. If the new materials “strengthen [the relevant] claim to the point that

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[the petitioner’s] argument would be potentially meritorious—that is, that a reasonable state

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court might be persuaded to grant relief on that claim,” then the district court should “stay the

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proceeding in order to give [the petitioner] an opportunity to return to state court and present his

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claim with the benefit of the materials that were not available and not part of the record at the

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time of the California Supreme Court decision.” 667 F.3d at 972. This ensures that “habeas

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claims of state prisoners be channeled in the first instance to the state court.” Id. (citing

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Pinholster, 131 S. Ct. at 1398). “It also protects [a petitioner’s] interest in obtaining federal
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ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION
(DPSAGOK)

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review of his claim,” id. at 980, for a diligent petitioner’s “interest in obtaining federal review of

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his claims outweighs the competing interests in finality and speedy resolution of federal

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petitions.” Rhines v. Weber, 544 U.S. 269, 278 (2005). “Once the state court has spoken” on a

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claim in light of new evidence, a petitioner “may, if necessary, return to district court and

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reactivate the federal proceedings.” Gonzalez, 667 F.3d at 980.1

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Accordingly, Gonzalez teaches that the prudent course is for the Court to hold the

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evidentiary hearing that it previously granted. If evidence is developed that renders any claim

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potentially meritorious, it may become appropriate at that time to stay the present action while

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Petitioner presents the evidence to the California Supreme Court; otherwise, this Court simply

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may deny the claims on the merits.

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IV. DISPOSITION
Good cause appearing therefor, Respondent’s motion for reconsideration of the Court’s

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prior orders regarding procedural default and granting an evidentiary hearing, (Doc. No. 263), is

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denied, consistent with the discussion herein.

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Within thirty days after the present order is posted, the parties shall file a joint statement

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including a proposed schedule for, inter alia, any necessary discovery and disclosures as

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contemplated in paragraphs 5–7 of the May 2, 2011, scheduling order, as well as proposed dates

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for an evidentiary hearing as contemplated in paragraph 8 of that order.

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IT IS SO ORDERED.

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DATED: September 25, 2012

_______________________________
JEREMY FOGEL
United States District Judge

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The Court is not persuaded by Respondent’s suggestion, (Doc. No. 281 at 21–22), that the
holding of Gonzalez be limited to its facts and by its particular procedural posture.

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Case No. 5-98-cv-21027-JF
ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION
(DPSAGOK)