The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is proceeding in forma pauperis and with appointed counsel on an application for a writ of habeas corpus, pursuant to 28 U.S.C. 2254. Petitioner was convicted by a jury of the first degree murder of his wife (Cal. Penal Code §187), with an enhancement for use of a knife found true (Cal. Penal Code §12022(b)), on January 23, 2001; he is serving an indeterminate term of twenty-five years to life in state prison with a one-year enhancement for use of a knife. First Amended Petition (FAP), filed on December 1, 2006, at 5-6.
On July 30, 2007, the undersigned recommended that this action be administratively stayed so that petitioner could exhaust an additional claim in state court.*fn1
Pending before the court is petitioner's May 28, 2009, motion to lift the stay and a request for an evidentiary hearing.
On July 16, 2009, and September 17, 2009, hearings were held before the undersigned regarding these motions. Marylou Hillberg appeared on behalf of petitioner. Daniel Bernstein appeared on behalf of respondent. Deputy District Attorney Kelly Maloy for Butte County also appeared on September 17, 2009, on behalf of respondent.
Petitioner, who is indigent and proceeding in forma pauperis, was appointed counsel and the first amended petition was filed on December 1, 2006. The undersigned also approved a funding request to retain an expert. The first amended petition contained an approximately 50 page declaration from the expert, Dr. Jeff Victoroff, describing the prejudice suffered by petitioner due to the ineffective assistance of trial counsel who failed to investigate or present any evidence at trial regarding petitioner's history of mental illness and the removal of his right temporal lobe. The instant case was stayed so petitioner could properly exhaust the new ineffective assistance of counsel claim in state court. Counsel for petitioner and respondent agreed that the correct procedure would be to prepare a new petition in state court and request an evidentiary hearing.
Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on January 9, 2007. On June 28, 2007, petitioner filed a motion for appointment of counsel and for payment of the expert witness, Dr. Victoroff, prior to an evidentiary hearing. On September 19, 2007, the California Supreme Court issued an order for an evidentiary hearing to be held in Butte County Superior Court.
A preliminary hearing was held in Butte County on October 30, 2007, and the evidentiary hearing began on April 15, 2008, where Dr. Victoroff completed his direct examination, but the hearing was continued before cross-examination could commence. The hearing never resumed.
At issue in the instant motion is the failure of Butte County and petitioner's counsel, despite numerous court hearings, motions and a writ of mandamus to the California Supreme Court, to come to a resolution on how much money should be paid to Dr. Victoroff for his expert testimony. As a result of this dispute, the evidentiary hearing was not concluded and the case has yet to be exhausted in state court.
Petitioner argues that state court exhaustion should be excused as the state court process is ineffective. Petitioner requests that this court hold an evidentiary hearing regarding the ineffective assistance of counsel claim and presumably pay for Dr. Victoroff to testify. Respondent contends that petitioner has the ability to exhaust the state court remedies, as funds have been provided to pay for an expert, just not the expensive rate of Dr. Victoroff, and an evidentiary hearing has already been commenced in state court. In the alternative, respondent suggests that this court provide additional federal funds to ensure the claim is exhausted in state court.
On June 28, 2007, petitioner's counsel, Ms. Hillberg, filed a motion for appointment of counsel and payment of expert witness prior to the California Supreme Court ordering an evidentiary hearing. In that motion Ms. Hillberg indicated that Dr. Victoroff's fee was $400 an hour. Motion Ex. A at 8. On October 8, 2007, Ms. Hillberg prepared a motion to be appointed as counsel and for the appointment of Dr. Victoroff as an expert, in advance of a preliminary hearing in Butte County Superior Court. This motion also indicated that Dr. Victoroff's fee was ...