The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING MOTION IN LIMINE (DOC. 77) ORDER DENYING AS MOOT PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM (DOC. 78)
ORDER SETTING DEADLINE OF AUGUST 20, 2010, FOR FILING OF APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM ORDER SETTING TELEPHONIC STATUS CONFERENCE Date: August 25, 2010 Time: 10:00 a.m.
ORDER SETTING DUE DATE FOR FILING JOINT STATEMENT Date: October 1, 2010 ORDER SETTING TELEPHONIC STATUS CONFERENCE Date: October 5, 2010 Time: 10:00 a.m.
ORDER SETTING EVIDENTIARY HEARING Date: October 14, 2010 Time: 1:00 p.m. Place: Courtroom 7
Petitioner is a state prisoner proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-303. Pending before the Court is Respondent's motion in limine, filed on July 7, 2010, to limit the evidentiary hearing to the following specific issue: whether trial defense counsel was asleep during any portion of the testimony of gang expert Frank Gonzales. Petitioner filed opposition on July 23, 2010; no reply was filed.
The in limine motion of Respondent came on regularly for hearing on August 6, 2010, at 9:30 a.m. in Courtroom 7 before the Honorable Sandra M. Snyder, United States Magistrate Judge. Carolyn Phillips appeared telephonically on behalf of Petitioner, and Paul E. O'Connor appeared telephonically on behalf of Respondent. The Court had reviewed all the papers submitted by the parties. After argument, the matter was submitted to the Court.
Respondent argues that the issue of whether defense counsel was asleep during any portion of the testimony of gang expert Frank Gonzales is the only issue which has been exhausted in the state courts. Further, it is the only issue that has been timely presented pursuant to 28 U.S.C. § 2244(d)(1). Petitioner's first amended habeas petition was timely filed in this Court on November 22, 2004, and raised this issue. (Pet., ground 8, p. 6c.)
Petitioner declared in his verified amended petition that his trial counsel, George Quick, had fallen asleep during the direct examination of the gang expert Mr. Gonzales, and that Mr. Vargas had to jar Mr. Quick awake. The transcript of the trial confirms these allegations. On the next day of trial, Friday, January 19, 2001, after both the defense and prosecution had rested, Mr. Quick advised the court that he was very fatigued and not prepared to begin his closing argument. The court denied his request to put over closing until Monday, June 22, 2001. (Mot., Ex. 2, R.T. January 19, 2001, pp. 448, 478.) Petitioner contends that Mr. Quick's admitted fatigue the day after he said he had been sleeping corroborates Petitioner's claim that Mr. Quick slept during the gang expert's testimony, and that such evidence should not be excluded because it goes directly to the issue of whether Mr. Quick was tired, and in fact was so tired that he slept during the trial.
The operative allegations in the first amended petition are as follows:
During the course of the trial counsel slept through portions of the prosecutors examination of adverse witness Frank Gonzales' testimony. Counsel during one stage of the testimony had to be jarred awake by the petitioner to get counsel to object to the prosecutions solicitation of testimony petitioner considered irrelevant, counsel in coming awake objected and acknowledged that he had been asleep and had missed the question and answer posed by the prosecutor. As a result of counsel's having slept through a substantial and significant portion of the trial proceedings, petitioner was denied the right to representation by counsel during every critical stage of the proceedings. (Pet. 6c: 7-17.)
With respect to the directions from the appellate court, in a memorandum of decision filed June 26, 2009, the United States Court of Appeals for the Ninth Circuit wrote the following:
Vargas argues that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, as a result of his trial counsel's sleeping during a substantial portion of the trial. Vargas alleges facts that, if true, may amount to a violation of his right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 680-96 (1984); United State v. Cronic, 466 U.S. 648, 659-60 (1984). Respondent Pliler asks us to assume that counsel was asleep--for how long or through what portion of the trial we do not know--but to conclude nevertheless that Vargas suffered no prejudice. Such a assumption would force us to engage in a series of speculations to answer a serious question about an important constitutional right. We conclude that Vargas's claim cannot be resolved by reference to the state court record in this case. See Schriro v. Landrigan, 550 ...