Gussner v. Gonzalez

Filing 39

ORDER by Judge Lucy H. Koh denying 20 Motion for Summary Judgment (lhklc2, COURT STAFF) (Filed on 2/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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DION GUSSNER,

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Petitioner,
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v.
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TERRY GONZALEZ, Warden of the California )
Men’s Colony,
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Respondent.
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Case No.: 12-CV-01876-LHK
ORDER DENYING SUMMARY
JUDGMENT

Petitioner Dion Gussner (“Petitioner”), a California prisoner currently incarcerated at the

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California Men’s Colony, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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on April 16, 2012. ECF No. 1. Respondent has filed an answer addressing the merits of the

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petition, ECF No. 11, and Petitioner has filed a traverse. ECF No. 29. Now before the Court is

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Petitioner’s motion for summary judgment (“Mot.”). ECF No. 20. Respondent has filed an

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opposition to this motion, ECF No. 26, and Petitioner has filed a Reply. ECF No. 30. Pursuant to

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Civil Local Rule 7-1(b), the Court deems this motion suitable for decision without oral argument

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and hereby VACATES the motion hearing and case management conference set for February 7,

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2013. Having considered the parties’ submissions, the record in this case, and the relevant law, the

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Court DENIES Petitioner’s motion for summary judgment.

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I.

BACKGROUND

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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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On August 18, 2009, Petitioner pled guilty to one count of violation of Penal Code §
191.5(a), Gross Vehicular Manslaughter While Intoxicated; admitted two enhancements under

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Penal Code § 12022.9(b), Great Bodily Injury – Brain Injury or Paralysis, and Vehicle Code §

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23558 – Multiple Victims; and stipulated to an upper term sentence. He was sentenced to 16 years

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in prison. See Exh. AAA to Petition for Writ of Habeas Corpus, Order of Monterey County

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Superior Court (“Superior Court Opinion”), at 2. Petitioner then filed a petition for a writ of

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habeas corpus in Monterey County Superior Court, alleging ineffective assistance of counsel. The

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Superior Court denied the petition in a written order dated July 1, 2011. Petitioner then filed a

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petition in the California Court of Appeal for the Sixth District, again seeking relief for ineffective

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United States District Court
For the Northern District of California

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assistance of counsel. The Court of Appeal summarily denied the petition on December 2, 2011.

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Petitioner then filed a petition for review of this denial in the California Supreme Court. The

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California Supreme Court denied review without an opinion on February 16, 2012. Petitioner filed

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his Petition in this Court on April 16, 2012. Petitioner then filed this motion for summary

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judgment on October 11, 2012.

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II.

DISCUSSION

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It was once uncontroversial for courts to consider summary judgment motions or similar

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procedures in habeas corpus proceedings. Indeed, the Supreme Court explicitly allowed the

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practice. Walker v. Johnston, 312 U.S. 275, 284 (1941); Blackledge v. Allison, 431 U.S. 63, 80-81

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(1977). However, these decisions concerned earlier versions of the federal habeas corpus law. The

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), PL 104–132, April 24, 1996,

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110 Stat 1214, worked a significant change in federal habeas corpus review of state court criminal

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convictions and severely limited the scope of review. Thus, the Supreme Court’s earlier approval

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of summary judgment during habeas proceedings does not necessarily mean that summary

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judgment remains appropriate in a habeas proceeding governed by AEDPA. The Supreme Court

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has not addressed the question since 1977. The most recent case Petitioner cites on the question of

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the appropriateness of summary judgment in habeas corpus proceedings is from 1990. See Mot. at

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3 (citing Johnson v. Rogers, 917 F.2d 1283, 1284-84 (10th Cir. 1990)). Thus, there does not

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appear to be any clear authority on the subject under the modern statute.
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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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Lower courts have not been consistent in their treatment of the issue. Some courts have

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decided summary judgment motions on § 2254 petitions without comment on the appropriateness

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of doing so. See, e.g., Rowland v. Chappell, C 94-3037 WHA, 2012 WL 4715262 (N.D. Cal. Oct.

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2, 2012). At least one court has concluded that to do so would be inappropriate. See Buchanan v.

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Foster, No. 3:06-cv-00340-LRH-RAM, 2007 WL 2459289 (D. Nev. Aug. 24, 2007). Still other

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courts have explicitly considered the apparent tension between the requirements for summary

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judgment and the procedures under § 2254, and have, with varying degrees of hesitation, gone

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ahead to decide the motion. See, e.g., Smith v. Cockerell, 311 F.3d 661 (5th Cir. 2002); Gentry v.

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Sinclair, 576 F. Supp. 2d 1130, 1139 (W.D. Wash. 2008). Given the absence of guidance or

United States District Court
For the Northern District of California

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consensus, the Court will undertake an analysis of the appropriateness of considering a motion for

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summary judgment in this case.

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Rule 12 of the Rules Governing Proceedings in the United States District Courts under 28

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U.S.C. § 2254 (“Habeas Rules”) provides that “[t]he Federal Rules of Civil Procedure, to the extent

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that they are not inconsistent with any statutory provisions or these rules, may be applied to a

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proceeding under these rules.”

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Summary judgment is governed by Federal Rule of Civil Procedure (“FRCP”) 56, and thus

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may be applied to a § 2254 proceeding to the extent that FRCP 56 is not inconsistent with the

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federal statutes governing collateral review of state criminal convictions. FRCP 56 provides, in

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relevant part, that “[t]he court shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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One aspect of the federal habeas statute that appears to be in square conflict with FRCP 56

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is 28 U.S.C. § 2254(e)(1), which provides in relevant part that “[i]n a proceeding instituted by an

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application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

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court, a determination of a factual issue made by a State court shall be presumed to be correct.”

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This requirement that a federal court defer to the state court’s factual findings is in conflict with the

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requirement under FRCP 56 that Courts draw all factual inferences in the nonmovant’s favor. See

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United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc).

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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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A court cannot simultaneously assess all facts in the record in the light most favorable to the

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nonmovant and accept as true the state court’s factual findings based on that same record.

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Some courts have solved this problem by “substituting” the 2254(e)(1) standard for the

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usual summary judgment standard, Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated

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on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004) (“Therefore, § 2254(e)(1)-which

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mandates that findings of fact made by a state court are “presumed to be correct”-overrides the

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ordinary rule that, in a summary judgment proceeding, all disputed facts must be construed in the

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light most favorable to the nonmoving party.”); see also Brian Means, Federal Habeas Manual §

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8:36. This procedure, however, would not provide a solution in any case where the state court’s

United States District Court
For the Northern District of California

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findings of fact were not made explicit. This is especially so where there is more than one basis on

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which a state court’s decision might have rested, as a reviewing federal court cannot easily

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determine what implied factual findings the state court might have made.

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Moreover, the procedures of federal habeas review are inconsistent with the purpose of

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FRCP 56. FRCP 56 exists to prevent the need for trial. See Advisory Committee Notes, Fed. R.

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Civ. P. 56, 1963 Amendment (“The very mission of the summary judgment procedure is to pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”);

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Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir. 1975), disapproved of on other grounds

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by Hollinger v. Titan Capital Corp., 914 F.2d 1564 (9th Cir. 1990) (“Summary judgment has, as

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one of its most important goals, the elimination of waste of the time and resources of both litigants

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and the courts in cases where a trial would be a useless formality.”); Mintz v. Mathers Fund, Inc.,

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463 F.2d 495, 498 (7th Cir. 1972) (“The primary purpose of a motion for summary judgment is to

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avoid a useless trial.”) In a proceeding where there is no provision for trial, the summary judgment

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cannot serve this function. Indeed, the Habeas Rules contemplate an answer and reply (Rule 5), an

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evidentiary hearing in some cases (Rule 8), and the entry of an order with or without a certificate of

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appealability (Rule 11), but they do not contemplate either a trial or an additional set of briefing or

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hearing, which actually adds a step rather than serving FRCP 56’s function of reducing the burden

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on the court.

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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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Moreover, “[u]nder AEDPA evidentiary hearings in federal court should be rare.” Cullen v.

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Pinholster, 131 S. Ct. 1388, 1411, (2011). Summary judgment proceedings in cases that will

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ultimately largely be resolved without evidentiary hearings anyway seem largely duplicative with

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the routine consideration of § 2254 petitions, though, as explained above, with a troublingly

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different standard for reviewing the factual record. Rather, in § 2254 cases where a live hearing to

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resolve the factual record is not necessary, the proper way for the Court to conserve its resources in

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the absence of a factual dispute is usually to deny an evidentiary hearing and defer to the existing

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factual record as determined by the state court.
Finally, the rules for § 2254 proceedings provide a mechanism for courts to rule on

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United States District Court
For the Northern District of California

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petitions where the factual record clearly does not support relief: the Preliminary Review descried

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in Habeas Rule 4 (“If it plainly appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct

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the clerk to notify the petitioner.”). Though there is no facial conflict between this rule and FRCP

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56, the two appear intended to serve the same purpose of disposing of cases where the factual

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record cannot support relief before they reach the final stages of adjudication. The fact that

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Congress provided a specific procedure for habeas corpus militates against also allowing the use of

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the more general procedure. In sum, although not in explicit conflict with FRCP 56, the Habeas

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Rules are a poor fit with FRCP 56.

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This case is particularly inappropriate for the kind of merging of standards that would be

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required to reconcile FRCP 56 with § 2254 because there is considerable uncertainty about the

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contents of the state court record. There appears to have been additional evidence before the Court

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of Appeal that was not before the Superior Court, but only the Superior Court wrote an opinion.

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Mot. at 12; see also Pet. Exh. ZZA (declaration of Petitioner concerning whether he would have

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pleaded guilty, submitted for the first time to Court of Appeal). Additional evidence was also

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submitted to the California Supreme Court on appeal of the Court of Appeal’s denial. See

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Attachment to Exhibits for Petition for Writ of Habeas Corpus (Declaration of Thomas

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Worthington submitted in California Supreme Court). Both of these declarations are central to

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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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Petitioner’s motion, and thus the state court’s treatment of these declarations is critical to this

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Court’s resolution of Petitioner’s claims. See Mot. at 6, 13 (discussing the additional declarations).

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In regular § 2254 review, the Court can simply take a summary denial and consider

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whether, in light of the factual record, there is any reasonable explanation for the denial that would

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not constitute an unreasonable application of clearly established federal law. See Harrington v.

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Richter, 131 S.Ct. 770, 784-85. Although this analysis of course entails a consideration of the

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factual record, it does not require the type of detailed piece-by-piece analysis of the factual record

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required by a motion for summary judgment, because a court need only determine whether there

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exists a possible reasonable underpinning for the state court’s conclusion. Thus, a reviewing court

United States District Court
For the Northern District of California

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faced with a summary denial can consider what a state court might reasonably have concluded.

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See Richter, 131 S.Ct. at 784. A court considering a motion for summary judgment, in contrast,

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must determine whether there is any genuine issue of material fact. As explained above, in order to

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give effect to the requirements of § 2254(e)(1), this Court would have to take all the facts as the

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state court determined them. In considering the underpinnings of a state court decision, this Court

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would normally look to the last reasoned state court opinion. See Ylst v. Nunnemaker, 501 U.S.

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797, 805-06 (1991). In this case, however, the record before the Superior Court, which issued the

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last reasoned opinion, is not the same as the record before the Court of Appeal, a higher state court

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that also denied the Petition. There is thus a written opinion to which this Court would normally

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defer, but that opinion did not make factual findings based on certain key evidence on which

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Petitioner now wishes to rely. The Court of Appeal, which did consider that evidence, was silent

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as to factual findings. This is a good example of precisely the type of procedural morass that will

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result from importing the summary judgment procedure from regular civil cases to the already

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extremely complex set of procedures governing § 2254 petitions.

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Finally, it is not clear how the review Petitioner seeks now is different from the review he

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will get when the Court considers his complete petition. Though Petitioner has requested an

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evidentiary hearing, the Supreme Court has explicitly instructed that district courts considering

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petitions under § 2254(d) may not consider evidence first brought to light in such a hearing, but are

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rather limited to the record that was before the state court. See Pinholster, 131 S. Ct. at 1398.
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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT

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Thus, in assessing Petitioner’s claim under § 2254(d), the Court will consider Petitioner’s claims in

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light of the state court record – precisely what Petitioner is asking for now. To the extent that there

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is a difference, it appears to be in the treatment of the facts, a difference which highlights the

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inappropriateness of considering such a motion now.

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As explained above, there is a poor fit between FRCP 56 and the rules and statutes

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governing federal court review of a state court conviction. The difficulties are compounded in this

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case due to the lack of clarity in the contents of the state court record. Accordingly, the Court finds

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that a motion for summary judgment is not appropriate in this case, and DENIES Petitioner’s

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motion.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: February 5, 2013

________________________________
LUCY H. KOH
United States District Judge

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Case No.:12-CV-1876-LHK
ORDER DENYING SUMMARY JUDGMENT