The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER RE: EVIDENTIARY HEARING
The operative petition in this case, the First Amended Petition (FAP), filed on December 14, 2010, comprises 103 claims plus numerous sub-claims. Many of these claims have been disposed of already by means of two summary judgment motions. On January 23, 2007, in connection with the second summary judgment motion made in this capital case, the court outlined those claims (some containing numerous sub-claims) which would remain after the second summary judgment:
Claims 4 (petitioner's "helper" counsel disbarred), 5, 6, 9, 10, 11, 12, 13, 14, 15,16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 69, 70, 102, 103. In that document, the undersigned ordered that all of these claims were subject to evidentiary hearing subject to AEDPA requirements. On review, the Honorable Frank Damrell required petitioner to move for an evidentiary hearing, and required the undersigned to review all prerequisites for the holding of such a hearing. Order of March 20, 2007.*fn1
Petitioner has moved for an evidentiary hearing on all of the afore identified claims except: 69, 70, 103 and 15(d). Because petitioner has abandoned any request for an evidentiary hearing for those claims, he will receive no evidentiary hearing, and these claims will be resolved later on the present record.*fn2
During the preparation of these Findings and Recommendations, after hearing on the motion for evidentiary hearing, and after submission of supplemental evidence, the court noted that petitioner's expert, Dr. Stewart, opined that petitioner was presently incompetent to proceed with this habeas petition. Although petitioner's counsel did not bring an affirmative motion in this respect, the undersigned determined that such an opinion could not lie latent in the record, only to surface at a later time, either at evidentiary hearing on the merits of the petition's claims, or even after a determination on those claims had been made. A lengthy detour was taken to adjudicate that issue of present incompetence which resulted in a final order denying any such assertion. Findings and Recommendations, 1/26/10; Order, 9/2/10.
Analysis of petitioner's motion requires a discussion of AEDPA's diligence requirements, and assuming those have been met for all or some claims, whether petitioner's motion should be granted under traditional requirements for evidentiary hearings. For the reasons set forth herein, petitioner shall receive an evidentiary hearing on Claims: 10, 11, 12, 13, 14, 15(b) [involuntary confession only -- see #s 10, 11, 12], 16 (a), (c), (g) [see #13], (i) [penalty phase only], 27 (all sub-claims). For the reasons set forth herein, an evidentiary hearing is denied on all other claims or parts of claims, which will be resolved later on the present record after evidentiary hearing.
AEDPA's Fail to Develop/Diligence Requirements
Respondent claims that the vast bulk of claims (identified below) do not warrant an evidentiary hearing because petitioner did not diligently seek an evidentiary hearing on those claims in state court. The AEDPA provides:
If the applicant has failed to develop the factual basis of a claim in State Court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review...; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
However, in California, diligence is a relative term. Most death penalty cases move glacially with respect to post-conviction matters, both in state and federal court. Thus, a little chronology is in order.
Petitioner was convicted in 1990, and adjudged on December 6, 1990. As all know, an appeal to the California Supreme Court is automatic. However, the court can take judicial notice that appeal proceedings do not occur rapidly; it often takes years just to appoint counsel for a convicted death penalty petitioner. "There is now a wait of 3 to 5 years before appellate counsel is appointed." ccfaj.org/documents/CCAJ Final Report.pdf at page 132 of 196.*fn3 See also in re Morgan, __Cal. 4th.__, __Cal. Rptr. 3d __, 2010 WL 3385390 *2 (2010). None of the records in this case to the undersigned's knowledge reflect precisely when counsel was appointed in petitioner's case; however, the opening brief on direct review was not filed until May 16, 1997, with the final reply brief filed on or about July 31, 1998. Shortly thereafter, on November 3, 1998, the first state habeas petition was filed so that it could be concurrently adjudicated along with the direct review. Throughout this first state habeas petition, petitioner requested further investigation of the facts presented and requested an evidentiary hearing. At or about this time, such a concurrent filing was the preferred procedure, and it remains the preferred procedure. See In re Clark, 5 Cal. 4th 750. 783, 21 Cal. Rptr. 2d 509, 531 (1983) (presumed timely if habeas petition is filed within 90 days after filing of direct review reply brief); In re Morgan, supra at *3 (presently 180 days after filing of reply brief).
The Supreme Court affirmed the conviction and penalty on direct review ((May 17, 2001, rehearing denied June 27, 2001) and the first state habeas petition (October 24, 2001). All claims at issue here were simply denied on the merits without explanation, none were considered as untimely brought. Thereafter, petitioner filed his first request for counsel et al. in federal court on January 3, 2002. A petition was ultimately filed on March 31, 2003; thereafter, petitioner returned to state court on July 3, 2003 to exhaust new issues discerned by federal habeas counsel. This time, in addition to a denial on the merits without explanation, every claim was denied as untimely, and with one exception, successive. On return to federal court, a first amended petition was filed on December 31, 2004.
The 1998 first state habeas petition, whose exhausted claims were contained within the first federal petition, was filed in accordance with the presumptive timeliness requirements of state law.*fn4 In such a situation, the court will not demand more of a petitioner from a federal perspective. The court finds as a matter of federal law that if the claims requiring extra-record review in a California capital habeas case are brought concurrently with the direct review proceedings as set forth in state law, there is no delay with which to find fault for the diligence in which the state proceedings were instituted.*fn5 This rule will also apply to requested evidentiary hearings on issues on direct review for the very odd issue which required factual development outside the record for direct review. However, petitioner must have supplied the state supreme court with sufficient facts such that the need for an evidentiary hearing was evident. Thus, the undersigned will later turn to that issue and the traditional requirements for the grant of an evidentiary hearing in the next section for those issues timely brought in 1998.
A different result obtains for those issues first presented to the state supreme court in 2003 -- the second state habeas petition. At hearing, the court explored the first part of the AEDPA requirement, i.e., whether an applicant has failed to develop the factual basis of a claim in state court, and specifically, whose burden it is to demonstrate the fault based "failed to develop." The court accepted supplemental briefs on the subject. For the reasons set forth below, the undersigned finds that respondent has the initial burden of identifying those claims which he contends were not developed properly; thereafter, petitioner has the burden of demonstrating that he was not at fault for the failure, or that an exception exists which would permit an evidentiary hearing.
Petitioner's largest misapprehension of § 2254(e)(2) concerns his default in demonstrating diligence in seeking to develop the facts which he would now like to develop at evidentiary hearing. The Supreme Court has found a failure to develop when "there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488 (2000).
The purpose of the fault component of "failed" is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful. Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see § 2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see § 2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute's later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not.
Id. at 439, 120 S.Ct. at 1490. See also Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005); Jaramillo v. Stewart, 340 F.2d 877, 882 (9th Cir. 2003).
By use of the terms "diligence" to describe the burden in the opening clause, the Supreme Court was clearly placing a temporal obligation on petitioner's investigation and his seeking to develop the facts in state court proceedings in a timely fashion. In Williams itself, the failure of state habeas counsel to review a psychiatric report which he should have known was in the file precluded a years later attempted development of a Brady claim by federal habeas counsel. Williams v. Taylor, 529 U.S. 437-440, 120 S.Ct. at 1490-1492. There could not be a clearer example of the need to act to timely develop a claim when one should have understood of the claim's possible existence. Petitioner's counsel herein does not in any way attempt to justify the delay in development of claims (set forth below) brought initially as unexhausted claims in this federal proceeding a decade after his conviction which he then sought to develop in a second state habeas petition.
Petitioner did not even mention his burden in the motion for evidentiary hearing. In his reply to respondent's opposition to evidentiary hearing based primarily on the AEDPA burden, petitioner gets all wound up in a discussion of procedural default, an affirmative defense to a habeas claim, which is apart and separate from the diligence requirements for an evidentiary hearing. Although a state court finding that one has not timely brought claims in a state petition may be instructive in a situation where one is analyzing whether claims were timely developed for federal evidentiary hearing purposes, the state court finding is by no means dispositive on this issue of federal law.*fn6
Placing the burden on petitioner to show diligence is correct for a number of reasons. First, Williams itself precluded a Brady claim because petitioner therein could not show that the delay in developing the claim was justified. Moreover, the Ninth Circuit has indicated that petitioner bears that burden. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) ("In sum, for a post-AEDPA petitioner to receive an evidentiary hearing in federal court, he must first show that he has not failed to develop the factual basis....") (emphasis added). The other circuits agree. Wilson v. Sirmons, 536 F.3d 1064, 1079 (10th Cir. 2008); Owens v. Frank, 394 F.3d 490, 499-500 (7th Cir. 2005); Bowling v. Parker, 344 F.3d 487, 511 (6th Cir. 2003). In addition, since petitioner has the burden to show that a factual finding by the state court is in error, § 2254(e)(1), it only makes sense to interpret the (e)(2) language in the same manner. Placing the burden on petitioner to show timely development of evidence for an evidentiary hearing is no different from placing the burden on petitioner to show that he qualifies for equitable tolling of the AEDPA statute of limitations, i.e., that he diligently pursued his claim, but was hindered by some external impediment from doing so. See Holland v. Florida, --- U.S. ----, ---- - ----, 130 S.Ct. 2549, 2560-62 (2010). Finally, it is only common sense to place the burden on the party most likely to possess the information about why something was not done at a particular time.
Only if petitioner has satisfied this first step does one analyze the "traditional" requirements for evidentiary hearing. See discussion below.
The first task of this order is to delineate those remaining claims which will not receive an evidentiary hearing due to lack of diligence in developing these claims in state court. That is, as set forth above, the court will deny those remaining claims for which evidentiary hearing is sought, based on lack of diligence, which were submitted to the state supreme court after the filing of the first state habeas petition. Again, petitioner did not even attempt a showing at diligence. The specific claims to be denied on this basis can be ascertained by comparing the state claims filing chronology (includes direct review and the first state habeas petition) provided in the FAP at pages 3-16. The "new" claims raised in the second state petition, appear at pages 17-19. Unfortunately, petitioner did not cross-index this chronology with the numbered claim in the FAP, and the undersigned has undertaken to perform that cross reference below. Thus, the discussion below will reference both the claim number of the operative FAP claim with its corresponding chronology claim identified by page and claim letter.
As stated above, at pages 17-19 of the FAP, petitioner identifies those claims which were not included in state proceedings prior to the second state habeas petition, the 2003 state petition. Deleting from this list the claims already decided on summary judgment (identified as 11(d) and (e) on page 17 (Claim 2 of the petition), and one claim on which counsel has not moved for evidentiary hearing judgment (identified as 11 (s) on page 19, Claim #103), that leaves the following claims for which an evidentiary hearing is sought, but for which there is no explanation concerning why petitioner was not able to attempt to develop them in state court so that they could be placed in the 1998 first state habeas petition, or at the very least, in the five year period between 1998 and 2003:
Denial of Right to Counsel -- Claim #4, see 11(a) on page 17 of the First Amended Petition (FAP);
Ineffective Assistance of Counsel re the Use of Gary J. Solberg as Counsel for Petitioner -- Claim # 5, see 11(b) on page 17 of the FAP;
Ineffective Assistance of Counsel re Failure to Move for Appointment of Second Counsel -- Claim # 15(c), see 11(c) on page 17 of the FAP;
Failure to Disclose Material Exculpatory Evidence; Ineffective Assistance of Counsel for Failure to Investigate Evidence (Swango) -- Claim # 18, see 11(f) on page 18 of the FAP;
Ineffective Assistance of Counsel re Failure to Present a Defense for Petitioner -- Claim # 16(b), see 11(g) on page 18 of the FAP;
Ineffective Assistance of Counsel re Failure to Retain Expert and Present Evidence to Impeach Prosecution's Witnesses Addicted to Drugs and Alcohol -- Claim # 16(d), see 11(h) on page 18 of the FAP;
Knowing Use of False Evidence re Testimony of Helen Rumsey -- Claim # 21, see 11(i) on page 18 of the FAP;
Arbitrary, Capricious, and Meaningless Charging Practices by the Shasta County DA -- Claim # 30, see 11(j) on page 18 of the FAP;
Discriminatory Charging Practices by the Shasta County DA -- Claim # 31, see 11(k) on page 18 of the FAP;
Ineffective Assistance of Counsel re Failure To Challenge Unconstitutional, Discriminatory, Arbitrary, Capricious, and Meaningless Charging Practices -- Claim #32, see 11(l) on page 18 of the FAP;
Failure to Disclose Material Evidence and Knowing Presentation of False Evidence (Baker) -- Claim #17, see 11(m) on page 18 of the FAP;
Knowing Presentation of False Evidence; Failure to Disclose Material Exculpatory Evidence; Ineffective Assistance of Counsel for Failure to Investigate Evidence (Leon Johnson) -- Claim #19, see 11(n) on page 18 of the FAP;
Failure to Disclose Material Exculpatory Evidence; Ineffective Assistance of Counsel for Failure to Investigate Evidence (Toombs) -- Claim #20, see 11(o) on page 18 of the FAP;
Ineffective Assistance of Counsel re Intent to Commit Burglary of the Rumsey Apartment and Robbery of Jim Rumsey -- Claim # 16(e), see 11(p) on page 18 of the FAP;
Ineffective Assistance of Counsel re Instructions and Argument Concerning Mitigation Evidence-- Claim #15(d), see 11(s) on page 19 of the FAP.
The undersigned declines to speculate as to the reasons for delay in bringing these claims; petitioner has not met his burden, or even attempted to meet his burden, of showing diligence in developing these claims in state court. The above listed claims are denied ...