KEVIN JAMES LISLE v. E.K. MCDANIEL

Filing 453

PROTECTIVE ORDER granting ECF No. 450 Motion for Reconsideration. (See pdf order for specifics.) Signed by Chief Judge Miranda M. Du on 1/25/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 2:03-cv-01006-MMD-DJA Document 453 Filed 01/25/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN JAMES LISLE,

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Case No. 2:03-cv-1006-MMD-CWH
Petitioner,

ORDER

v.

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WILLIAM GITTERE, et al.,
Respondents.

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In this order, in this capital habeas corpus action, the Court grants Petitioner Kevin

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James Lisle’s motion for reconsideration (ECF No. 450), reconsiders the denial of a

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protective order, and issues a protective order regarding materials related to Lisle’s

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motion to waive further proceedings and voluntarily dismiss this action and the evidentiary

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hearing held on November 12 and 13, 2020 (“Protected Materials”).

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On June 20, 2019, Lisle, who is represented by appointed counsel, filed a pro se

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motion to waive further proceedings and voluntarily dismiss this action. (ECF No. 359.)

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The Court held an evidentiary hearing regarding that motion on November 12 and 13,

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2020. (ECF Nos. 444, 445.) At the evidentiary hearing, Lisle’s appointed counsel

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presented exhibits and testimony of witnesses concerning the issues whether Lisle was

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competent to make the waiver and whether the waiver was knowing, intelligent, and

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voluntary. (Id.) At the evidentiary hearing, the Court heard testimony from Lisle himself.

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(Id.) At the conclusion of the evidentiary hearing on the afternoon of November 13, 2020,

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before the Court ruled on Lisle’s motion, Lisle withdrew the motion. (ECF No. 445.)

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On November 10, 2020, two days before the evidentiary hearing commenced,

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Lisle’s counsel filed, on his behalf, a Motion for Protective Order (ECF No. 443). In that

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motion, citing Federal Rule of Civil Procedure 26(c)(1)(D) and Bittaker v. Woodford, 331

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F.3d 715 (9th Cir. 2003) (en banc), Lisle argued: “The information developed during this

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waiver proceeding should be restricted to the purposes of that proceeding only, and the

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State should not be allowed to make any derivative use from this information in arguing

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against his habeas petition or in any future proceedings against Mr. Lisle.” (ECF No. 443.)

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The Court denied that motion on November 30, 2020, determining that Lisle had not

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sufficiently specified the terms of the protective order that he sought and had not made a

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sufficient showing that a protective order was warranted. (ECF No. 449.)

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Lisle filed a motion for reconsideration on December 9, 2020 (ECF No. 450),

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requesting reconsideration of the Court’s November 30 order. Lisle filed, as Exhibit A to

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that motion, a proposed protective order. (ECF No. 450-1). Respondents filed an

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opposition (ECF No. 451), along with their own proposed protective over (ECF No. 451-

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1). Lisle filed a reply. (ECF No. 452.) The Court determines that Lisle shows that a

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protective order is warranted and will grant the motion.

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Following the filing of Lisle’s pro se motion to waive further proceedings and

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voluntarily dismiss this action, it was necessary for the Court to conduct a thorough inquiry

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into Lisle’s competence and the knowing, intelligent, and voluntary nature of the waiver.

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To waive a petitioner’s right to further habeas proceedings, the petitioner must be

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competent, and his waiver must be voluntary, knowing, and intelligent. Rees v. Peyton,

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384 U.S. 312, 313–14 (1966); Dennis ex rel. Butko v. Budge, 378 F.3d 880, 889 (9th Cir.

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2004). And, Lisle had a right to present evidence regarding his waiver without having to

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give up any other constitutional right. See Simmons v. United States, 390 U.S. 377, 394

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(1968) ([“W]e find it intolerable that one constitutional right should have to be surrendered

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in order to assert another.”). In Bittaker, the Ninth Circuit Court of Appeals held that a

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protective order is called for in a federal habeas proceeding when a petitioner proffers

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attorney-client privileged information in seeking to vindicate his Sixth Amendment right to

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the effective assistance of counsel. See 331 F.3d at 723 (explaining that requiring the

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petitioner to waive attorney-client privilege in pursuit of Sixth Amendment claims “would
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violate the spirit, and perhaps the letter, of [Simmons]”); see also Lambright v. Ryan, 698

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F.3d 808, 822–23 (9th Cir. 2012) (applying Simmons to waiver of Fifth Amendment rights

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in pursuit of constitutional claims in federal habeas action). Following Bittaker, this Court

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determines that a protective order is warranted with respect to evidence and testimony

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presented by Lisle and his counsel at the evidentiary hearing in this case.

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Respondents do not oppose the issuance of a protective order preventing the use

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of Protected Materials in litigation of Lisle’s federal habeas petitions (this case and Case

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No. 2:03-cv-01005-JCM-DJA), nor do they oppose a protective order preventing the use

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of such materials in any retrial of Lisle for the crimes that are the subject of his federal

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habeas petitions. (ECF No. 451 at 2–4.)

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On the other hand, Respondents point to circumstances in which, they contend,

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they—or others—should not be prevented from using Protected Materials: proceedings

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regarding alleged perjury by Lisle; proceedings in which Lisle takes a position inconsistent

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with a position he took in connection with his motion to waive further proceedings and

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voluntarily dismiss this action or the evidentiary hearing held on November 12 and 13,

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2020; proceedings in which Lisle claims retaliation by prison staff; proceedings in which

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an issue arises regarding Lisle’s competency. (Id.) The Court will decline to rule at this

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time on the question whether use of Protected Materials in any such situation would be

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proper. The Court finds it impossible to foresee the circumstances surrounding such

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potential uses of the Protected Materials and determines that any such ruling will be better

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made, if necessary, when the precise circumstances can be determined and the parties

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can provide briefing specific to those circumstances. Therefore, the Court will not include

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in the protective order the exceptions requested by Respondents. The Court will allow the

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parties to request modification of the protective order, if and when any party seeks to use

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the Protected Materials in any future proceeding.
It is therefore ordered that Petitioner’s Motion for Reconsideration (ECF No. 450)

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is granted.

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It is further ordered that a protective order is hereby imposed, as follows.

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Information produced or generated in connection with Petitioner’s motion to waive further

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proceedings and voluntarily dismiss this action or the evidentiary hearing held on

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November 12 and 13, 2020, shall not be used in any other proceeding or legal action.

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This includes, but is not limited to, any other proceeding in this case or in Petitioner’s

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other federal habeas action, Case No. 2:03-cv-01005-JCM-DJA. This also includes, but

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is not limited to, any criminal prosecution of Petitioner in state or federal court. This

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protective order does not restrict use of materials obtained from a source independent of

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the proceedings in connection with Petitioner’s motion to waive further proceedings and

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voluntarily dismiss this action and the evidentiary hearing held on November 12 and 13,

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2020. Materials filed under seal in connection with Petitioner’s motion to waive further

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proceedings and voluntarily dismiss this action or the evidentiary hearing held on

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November 12 and 13, 2020, will remain under seal. This protective order will remain in

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effect after the conclusion of this action. Any party may move for modification of this

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protective order at any time, but any such motion must be made such as to allow sufficient

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time for the Court to entertain briefing on the motion and rule on it before any

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contemplated use of the protected materials.

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DATED THIS 25th Day of January 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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