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Franklin v. Walker

December 15, 2009

ROBERT FRANKLIN, PETITIONER,
v.
JAMES WALKER, ACTING WARDEN, RESPONDENT.



ORDER

Petitioner is a state prison inmate proceeding with counsel on a petition for a writ of habeas corpus challenging his Plumas County conviction for the murder of his wife, Ronna Franklin. Counsel has filed a motion for leave to conduct discovery, which respondent has opposed.

I. Background

Portions of the state Court of Appeal's decision upholding the conviction help illuminate some of the issues raised by the instant motion.*fn1

On December 28, 1996, Ronna's 38th birthday, she and defendant went for a ride on a snowmobile defendant had purchased. . . . . It was raining, causing the snow on the ground to turn slushy. As a result of what defendant asserted was an accident, the snowmobile came to rest along the side of a road where there was a three-foot-deep puddle of slushy water.

Deborah and Eric Ingvoldsen were traveling on their snowmobiles when they noticed the Franklins' snowmobile, upright, with the motor still running and the headlight on, stopped in the slushy water at the edge of the road. Just behind the snowmobile, defendant was sitting, immersed in the water up to his chest, leaning back against the snow bank. His head was straight, not leaning to either side. Mrs. Ingvoldsen got off her snowmobile and approached the Franklins' snowmobile on foot. Although defendant was wearing a helmet, she could see that defendant's eyes were closed and his face was flushed. After she yelled to defendant, with no response, Mrs. Ingvoldsen saw a yellow slicker under the water and a helmet floating in the water. Upon closer inspection, she saw Ronna under the water, her eyes wide open and her lips blue. With the help of her husband and Jeff Wisecarver, who had just arrived on the scene from the opposite direction, Mrs. Ingvoldsen pulled Ronna out of the water.

Defendant's color was good, and steam was rising from his chest. Jay Grubbs arrived on the scene, and the three men pulled defendant from the water. . . . It appeared that defendant was conscious but slipping into unconsciousness.

Defendant was taken by sled to a cabin at Grubbs Cow Camp, which was about a quarter-mile from where he was found. En route, defendant's leg slipped off the sled and bent back. Although it appeared to be painful, defendant did not react. Defendant was carried inside the cabin and his clothes were removed. There were no injuries. He mumbled and asked about his wife. Defendant was at the cabin for more than two hours, over which time his mental condition appeared to improve markedly. . . . . . . . An autopsy revealed Ronna's cause of death was drowning. Several ribs had been broken during administration of CPR, but there were no other signs of trauma to the body. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant was taken to the hospital and arrived after Ronna had been pronounced dead. He had no obvious injury, but tests were ordered because he said his abdomen was slightly tender. When told that Ronna died, defendant cried. X-rays and a CAT scan revealed no abnormalities. The attending physician saw no injury that would explain a loss of consciousness. Defendant was admitted to the hospital for an overnight stay because he said he lost consciousness.

While still in the hospital, defendant initially told a California Highway Patrol officer he did not remember anything about the snowmobiling incident. He remembered having lunch, during which he and Ronna both consumed alcohol. They went for a ride on the snowmobile with Ronna riding in front and driving, he told the officer. Defendant believed they hit something but did not remember anything further. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The brakes and clutch on the snowmobile were working normally. The tracks of the snowmobile were consistent with someone simply pulling over and stopping. There were no obstructions in the path of the snowmobile that would have caused an accident. Normally, if someone is in a snowmobiling accident, that person falls off to the side or goes over the handlebars. Defendant and Ronna, however, were found behind the snowmobile.

The tracks left by the snowmobile were straight, indicating the snowmobile had not suddenly turned one way or the other. The snowmobile was found upright and there was no indication the front skis on the snowmobile had left the ground, causing a loss of control. Also, if defendant and Ronna had come around the last curve at an excessive speed, they and the snowmobile would have gone off the other side of the road. It did not appear, from the physical evidence at the scene, that there had been a snowmobiling accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

An accident reconstruction expert, Garrison Kost, conducted tests using a snowmobile. Although he did not attempt to duplicate the exact conditions that existed for the Franklins, the expert concluded from the evidence given to him that the snowmobile was not traveling fast prior to stopping where defendant and Ronna were found. Consequently, the G-forces applied to the riders would not have been strong. A biomechanical engineer, Lawrence Thibault, testified as a prosecution expert that, if defendant had fallen off the snowmobile and struck his head on the snow with his helmet on, the impact would not have been sufficiently strong to cause a concussion. A defense expert testified, however, that the conclusion of the prosecution's expert was unreliable because it did not take into account whether defendant was ejected from the snowmobile.

People v. Franklin, 2003 WL 21518916 at 3-6.

After the conclusion of direct review in the state courts, petitioner filed his habeas petition in this court, raising the issues exhausted through the direct appeal process along with some that were concededly unexhausted. This court granted petitioner's requests for the appointment of counsel and a stay of the proceedings.

During the proceedings on a state habeas petition filed in Plumas County Superior Court, petitioner sought discovery based on California Penal Code section 1054.9, seeking twelve categories of information. Request seven asked for, among other things, materials concerning this case given to the prosecution by lawyers, insurance companies, the decedent's family, law enforcement agencies in Santa Clara and Sacramento Counties, and from Exponent, also known as Failure Analysis Associates. Lodg. Doc. 6, App. 7 at 3-4.

At the initial hearing in superior court, the court found no right to "free floating discovery" and suggested that petitioner should first determine whether the material was available from trial counsel as a foundation for the motion. Lodg. Doc. No. 8, App. 15 at 4-5. The court ultimately denied the motion without prejudice. Id., App. 15 at 10.

Petitioner then renewed his motion for discovery, providing additional information in support of his requests. Id., App. 8. In his discussion of request seven (e), petitioner noted that at trial, both counsel referred to a number of articles written by Dr. Thibault, the prosecution's expert witness, but that these articles were not among the documents petitioner's current counsel received from trial counsel. Id., App. 8 at 4. In his response, the prosecutor provided several articles his "diligent search" identified as responsive to request seven (e). He also averred that his search had not yielded other discovery materials. Id., App. 23 at 2-3.

The superior court held a further hearing on this request on May 23, 2005. Id., App. 16. The prosecutor noted that his file had become "somewhat unorganized" during the lengthy trial. He described the file as consisting of "a dozen book boxes with various, previously-discovered items mixed together horizontally with many attorney notes on them and in the margins and what not. [¶] I'm not prepared to let Mr. Bacon look through this, what appears to be attorney work-product, but in terms of facilitating getting copies of things that were discovered in the case, I'd be happy to do that. [¶] There's really nothing else to show him other than the evidence that I believe the Court still has from the trial." Id., App. 16 at 3. The court said:

. . . Mr. Bacon, I don't read the Steele decision quite as expansively as you do, and I would be the first to admit that probably in terms of ease of both sides' preparation for any further hearings with regard to writs, they might be the easiest to simply have the District attorney allow you to go through all those dozen boxes . . . . . However, the law does not require that that be the case. And Mr. Cunan has indicated good reason to believe that this could very well be a violation of his rights to privacy of attorney work-product. . . . . . . . . [W]ith exception of request No. 5. I'll go ahead and make a finding that it does appear that the People have responded sufficiently to your request for information and discovery.

Id., App. 16 at 3-4. The court then considered request number five, which concerned a list of women with whom petitioner allegedly had had affairs during the course of his marriage that had been discussed during an in camera proceeding; this matter is not at issue here. Id., App. 16 at 4-8. The court directed that petitioner be provided with a list of the names of women with whom petitioner allegedly had affairs but found that the prosecutor had adequately responded to petitioner's other requests. Id., App. 16 at 10.

Petitioner filed a petition for a writ of mandate in the Court of Appeal, which denied it by noting that "a blanket request for discovery is insufficient." Id., App. 18. The California Supreme Court denied review of this issue. Id., App. 19.

Petitioner filed his amended petition in this court on September 10, 2007, raising twenty-two grounds.

Petitioner has now filed a motion for discovery in this court. In broad outline, he seeks the following categories of information:

A. Materials from the prosecution's expert witnesses regarding calculations and simulations regarding the snowmobile;

B. Access to the snowmobile itself for dynamic testing; and C. Materials from the prosecutor's files about contacts from a variety of sources relating to the prosecutor's alleged conflict of interest.

II. Discovery In Habeas Cases And The AEDPA

According to respondent, in addition to determining whether petitioner has shown good cause for the requested discovery, this court must review any state discovery ruling "under the highly deferential standard" of 28 U.S.C. § 2254(d) and must consider the "presumptive correctness of state court findings" under 28 U.S.C. § 2254(e)(1). In supplemental briefing, respondent argues that petitioner must also satisfy the requirements of 28 U.S.C. § 2254(e)(2) in order to proceed with discovery.

Petitioner counters that the deferential standards are applicable only to claims relating to the ultimate merits of the action and also argues that even if this court must defer to the state court, there are no findings entitled to deference. He also argues he has demonstrated good cause for the discovery sought, as that term has been interpreted by the courts.

The statute provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the ...


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