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August 11, 1999


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 (N.D.Cal. 1996).

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.

(2) The second is a brief by Dr. Berg's attorney in a case against Berg, from which petitioner here attempts to argue that Dr. Berg knew of the state's investigation of him at the time he testified in petitioner's trial. The court has read that brief, and concludes that it does not establish what petitioner seeks to show. The brief is on the whole a social and political polemic, devoid of any facts that are material here. The inference which petitioner attempts to draw from it is not supported by the brief. And the brief does not establish any admission by Dr. Berg that would be a proper subject of judicial notice.

(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 facts.

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 disclosed 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 ...

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