The opinion of the court was delivered by: Legge, District Judge.
OPINION AND ORDER ON PETITION
FOR WRIT OF HABEAS CORPUS
DEATH PENALTY CASE
Petitioner James Richard Odle is a prisoner of the State of
California, under sentence of death. He originally petitioned this court
for a writ of habeas corpus in 1988. The matter is now before the court
on his amended petition filed on February 16, 1993.
The procedural history of this case is summarized in this court's order
granting partial summary judgment. Odle v. Calderon, 884 F. Supp. 1404,
1410-11 (N.D.Cal. 1995). The amended petition raises fifty-six claims. In
three prior orders, this court denied most of the claims. See Odle v.
Vasquez, 754 F. Supp. 749 (N.D.Cal. 1990); Odle v. Calderon,
884 F. Supp. 1404 (N.D.Cal. 1995); Odle v. Calderon, 919 F. Supp. 1367
Three claims remain. The court granted an evidentiary hearing on two of
those claims, which hearing has been held and submitted for decision. The
third claim is one of cumulative error. Those three claims are the
subject of this order.
The two claims that were the subject of the evidentiary hearing and are
now submitted before this court are Claims H and I. They allege the
following. Claim H: Failure of the state to disclose that its mental
health witness in petitioner's criminal trial, Dr. Paul Berg, was the
target of a fraud investigation at the time he testified in the trial.
Claim I: False testimony of Dr. Berg, which was material to the guilt and
penalty determinations, was knowingly presented by the state. Each of
those claims is alleged to have violated petitioner's constitutional
rights during his trial.
As stated, this court granted an evidentiary hearing on those claims.
Discovery was conducted for that hearing. Shortly before the evidentiary
hearing, this court conducted a preliminary hearing on the two pending
claims. With respect to Claim I, this court ruled that a mere
disagreement among the mental health professionals was not a legally
sufficient basis to establish falsity. The falsity has to be the falsity
of a fact. And it is not the function of this habeas court to examine the
competence of the medical professionals, their qualifications, or whether
they used insufficient or improper methods in reaching their opinions.
(See transcript of August 21, 1998). Those conclusions are supported by
the case authorities which are cited below in this order.
Following additional discovery, the evidentiary hearing was held on
these claims. The court heard the testimony of witnesses, and exhibits
were admitted into evidence. After the hearing itself, but as a part of
the hearing record, petitioner submitted the depositions of witnesses
Piazza, Diaz, Singer, Yancey, and McTigue, which the court has read.
Petitioner also filed a subsequent request for this court to take
judicial notice of four items, to which respondent objects:
(1) One is a set of answers to interrogatories given by respondent in
this proceeding. That is certainly a proper document for this court to
consider. But it does not demonstrate any fact that is not otherwise
established by the record.
(3) The third document is from another case, apparently on the subject
of the state Attorney General telling local agencies to comply with an
injunction directed to the Attorney General in that case. However, that
document is simply a submission by one side in that case, and it does not
establish any facts here.
(4) The fourth is a newspaper article published at the time of
petitioner's conviction, purporting to quote "an anonymous juror." Such an
article is not a proper subject of judicial notice.
The parties have also filed post hearing briefs, which the court has
reviewed in detail.
These claims are reviewed by this court under the following standards.
The 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) is
inapplicable to this case, Lindh v. Murphy, 521 U.S. 320, 117 S.Ct.
2059, 2068, 138 L.Ed.2d 481 (1997). Therefore, the court reviews
petitioner's constitutional claims under a de novo standard. See
generally 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus
Practice and Procedure, § 30.2 at 957 (2d ed. 1994); Wright v. West,
505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). Even though the
California Supreme Court denied petitioner's claims on the merits, this
court can decide the legal questions and mixed questions of fact and
law. Id. Because the state court held no hearing and made no written
findings on these claims, there are no factual findings to which this
court must defer. (See former 28 U.S.C. § 2254(d), according a
presumption of correctness to state fact findings after a hearing on the
merits and evidenced by written findings). This court is therefore
empowered to find the facts and to independently apply federal law to the
A state conviction that has become final carries a general
presumption of regularity. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct.
1019, 82 L.Ed. 1461 (1938); McKenzie v. McCormick, 27 F.3d 1415, 1417
(9th Cir. 1994); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976).
Accordingly, petitioner here bears the burden to establish that his
conviction was affected by constitutional error. Id.
Because habeas proceedings are civil in nature, the usual civil
preponderance of the evidence burden of proof applies. That is, petitioner
bears the burden to establish the facts underlying his claims of
constitutional error by a preponderance of the evidence. Johnson, 304
U.S. at 468-69, 58 S.Ct. 1019; McKenzie, 27 F.3d at 1419; Bellew, 532
F.2d at 1290. Respondent bears the burden of proof as to any affirmative
defenses. See 2 Liebman & Hertz, supra, § 31.2 at 968.
As stated, claim H alleges the failure of the state to disclose that
Dr. Berg, the state's mental health witness in petitioner's trial, was
the target of a fraud investigation at the time he testified. It is
undisputed from the record that Dr. Berg was under investigation by the
Attorney General of the State of California for alleged Medi-Cal fraud at
the time he testified.
This raises two possible concerns. The first is whether Dr. Berg was
actually biased in the testimony he gave in support of the prosecution
and against Odle. That is, did Dr. Berg slant his testimony in order to
curry favor with the prosecutor, in hopes of it having some favorable
effect on his investigation? The second is whether there has been a
violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), because this potentially impeaching evidence was not
to defense counsel. The court discusses each concern in order.
The issue of actual bias is easily answered. The record
demonstrates, with no dispute, that neither Dr. Berg nor the prosecutors
knew about the ...