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Robert Hayden Nesbitt, Jr v. Francisco Jacquez

January 28, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, proceeding with appointed counsel, filed pro se a petition superseded by an amended petition, pursuant to 28 U.S.C. § 2254. After pleading no contest to ten counts of robbery on October 6, 2003, petitioner was sentenced to a term of 133-years-to-life under California's "three-strikes" law in Solano County Superior Court on December 9, 2005.

Amended Petition (AP), pp. 1*fn1 ; Motion for Discovery (Mot.), p. 3. The sole claim of the amended petition is that the "trial court and court of appeal unreasonably applied established federal constitutional law when it decided that petitioner was not entitled to a fair sentencing hearing." AP, pp. 4, 19-28. Petitioner's counsel filed a motion for discovery on June 28, 2010, to which respondent filed an opposition on July 15, 2010, after which petitioner filed a reply on July 20, 2010. Motion for Discovery On July 29, 2010, petitioner's motion for discovery came on for hearing.

Petitioner was represented by Stephanie Adratkas; Joan Killeen appeared for respondent.

Petitioner's claim is "that the trial court violated his right to due process and a fair sentencing hearing when it sua sponte reviewed a juvenile probation report*fn2 as evidence at the hearing on his motion to strike his prior convictions in the interests of justice pursuant to People v. Superior Court (Romero), 13 Cal.4th 497[, 53 Cal. Rptr. 2d ]([Cal.] 1996)." Mot., p. 3. At the Romero hearing, petitioner's defense counsel argued the petitioner had been "the victim of severe physical and psychological abuse by his parents, and in particular his father." Id. Petitioner contends that after the sentencing judge had read the juvenile probation report and considered other evidence at the hearing, the court denied the motion, asserting that when petitioner had spoken to the juvenile probation officer, he had denied being the victim of physical or of verbal abuse. Id., citing the August 30, 2005, Reporter's Transcript (RT), pp. 56-59. Petitioner's counsel goes on to explain that during her investigation of petitioner's claims that she has obtained a copy of a March 28, 1983, a City of Hawthorne, California Police Department police report, when petitioner was approximately eight years old. Mot., p. 3. The police report contains a report of an incident wherein police had been contacted regarding a report of child abuse when petitioner's swimming instructor noticed that he had "'several very long darkened marks extending from shoulder blade to shoulder blade.'" Id. Counsel for petitioner states that the investigating office noted "'two of the marks were in the shape of a rectangle (approx. 1/2 " by 6.)'" Id. According to petitioner's counsel, when petitioner was questioned, he told a police officer his mother hit him with a belt on his back side and back. Id. at 3-4. When he was asked about the marks on his back, petitioner told police his mother had told them that he had the marks at birth. Id. at 4.*fn3 Petitioner's counsel indicates that she "contacted the Los Angeles County Department of Children and Family Services to obtain a copy of any material they may have regarding an investigation of that incident or any other incidents of child abuse" of petitioner.

Mot., p. 4. Counsel avers that she wrote a letter to that agency on May 18, 2010, requesting any such records and providing them with a release from petitioner, but had not received a response. Id., & Declaration of petitioner's counsel, ¶ 8.

Petitioner asks the court to permit petitioner to issue a subpoena duces tecum for Los Angeles County Department of Children and Family Services records relating to child abuse of petitioner, arguing that such records are necessary for petitioner to support his claims that his attorneys were ineffective for failing to rebut the information contained in the juvenile probation report and to show petitioner was prejudiced by the sentencing court's reliance on hearsay in the report. Mot., p. 4. Petitioner maintains that the discovery is relevant to petitioner's claim regarding a violation of his rights to due process and a fair sentencing hearing when hearsay statements in a juvenile probation report were considered sua sponte by the court, indicating petitioner had a good relationship with his parents. Id. This court notes that this is the only claim upon which the petitioner is presently proceeding. However, counsel for petitioner argues that the records are also required to support a potential ineffective assistance of counsel claim on the grounds that his trial counsel should have sought a continuance to obtain rebuttal evidence to the information in the probation report which suggested petitioner had not been abused as a child by his parents. Id. Petitioner maintains there is good cause for the discovery which is sought pursuant to Rule 6 of the Rules Governing § 2254 Cases and Fed. R. Civ. P. 45 because the aforementioned police report establishes notification of the police of evidence of petitioner's child abuse and because he identified his mother as having hit him with a belt. Id., at 4-5.

In opposition, respondent emphasizes that the only claim upon which petitioner is proceeding is the claim that has been exhausted, that "the trial court erred in taking judicial notice of a 1991 juvenile probation report that contradicted his claim of childhood physical and psychological abuse." Opposition (Opp.), p. 2 & Ex. A (docket # 28-1), copy of unpublished California First District Court of Appeal opinion, p. 2. Petitioner, respondent notes, pleaded no contest to 10 counts of second degree robbery, being a felon in possession of a firearm and conspiracy to commit robbery, as well as admitting that he personally used a firearm, that he had a prior serious felony conviction and that he had six prior strike convictions, all for robbery. Id., p. & Ex. A, pp. 2-3.

In the reply, petitioner adds to the description of abuse petitioner gave officers when he was eight including not only his mother beating with a belt, but his father hitting him "'on the backside with his hands.'" Reply, p. 1. As to the marks on his back which he said his mother had told him he was born with, apparently, according to the report petitioner's mother admitted hitting petitioner with a belt, but denied hitting on the back. Id.


As respondent contends, habeas petitioners, unlike other civil litigants, are not entitled to discovery as a matter of course. Opp., pp. 1-2. "Parties in habeas cases, unlike those in ordinary civil cases, have no right to discovery." Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003), citing Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.1993) ("there simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter" (in turn, citing Harris v. Nelson, 394 U.S. 286, 296, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969))); see also, Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999)("A habeas petitioner does not enjoy the presumptive entitlement to discovery of a traditional civil litigant. Bracy v. Gramley, 520 U.S. 899, 903-05, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997).").

Discovery under the Federal Rules of Civil Procedure in a habeas case is only available:

"if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Rules Governing Section 2254 Cases in the United States District Courts [hereinafter Habeas Rules], Rule 6(a); see Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).

Bittaker, supra, 331 F.3d at 728.

The Supreme Court has stated that Rule 6(a) "is meant to be 'consistent' " with its holding in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), in which the Court held that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (quoting Harris, 394 U.S. at 300, 89 S.Ct. 1082) (alteration in original). Likewise, we have held that a district court abused its discretion in not ordering Rule 6(a) discovery when discovery was "essential" for the habeas petitioner to "develop fully" his underlying claim. Jones, 114 F.3d at 1009.

Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005).

Thus, the matter of discovery is very much merits oriented. If for legal reasons the claims are simply not actionable, no matter the claimed specific facts, no discovery should be permitted as it will ultimately be a waste of time. And, in taking a look at the merits to see if a fully developed record will entitle the petitioner to relief, the court is very much bound to utilize the AEDPA standard to assess that chance for relief. See Schiro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933 (2007). In this case, petitioner has made, or would make, specific allegations; however, it remains to be shown whether these allegations would afford any relief in this case.

AEDPA applies to this petition.*fn4 The applicable standard, that is, the clearly established Supreme Court authority, therefore, for petitioner to show to implicate a sentencing decision is that the sentence was "founded at least in part upon misinformation of constitutional magnitude." United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 591 (1972). To show any entitlement to the discovery at issue, petitioner's claim must implicate the sentencing decision as having been significantly based on information that was materially untrue. Tucker,

supra, at 447, 92 S. Ct. at 592, quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948), for the applicable standard: "'this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.'" Because the California Supreme Court was silent as to why petitioner's habeas petition was denied, it is permissible to "look through" its decision to the last reasoned state court decision, which was that of the Second Appellate District. Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).

As there has been no response to the pro se amended petition filed at this point, the underlying sentencing record has not yet formally been submitted to this court. However, petitioner included a copy of the Reporter's Transcript of the hearing of the Romero motion in the Solano County Superior Court, dated July 29, 2005 (dkt. # 4, pp. 31-107), the RT for the August 5, 2005 proceedings (dkt. # 4, pp. 109-210), the RT for the proceedings of August 26 and 30 of 2005 (dkt. # 4-1, pp. 2-74), the RT for the December 9, 2005 sentencing proceedings (dkt. # 4-1, pp. 76-119). Again, although not authenticated, respondent has not challenged the authenticity of the RT copies. Petitioner moves for discovery of any material the Los Angeles County Department of Children and Family Services may have regarding an investigation of any and all incidents of abuse of petitioner as a child to shore up a potential claim for ineffective assistance of counsel and to further support the actual claim on which petitioner now proceeds, that he was deprived of due process and a fair trial when the sentencing judge relied on inaccurate information in a juvenile probation report (that contradicted, or at least, undermined, petitioner's evidence presented at the Romero motion). The undersigned has reviewed the entire Romero motion and underlying proceedings, including the testimony, argument and sentencing, as well as petitioner's copy of the 1991 juvenile probation report at issue. The 2007 state appellate court summarizes the background to the Romero motion, and the court's independent review confirms its accuracy with regard to the witness testimony and other evidence presented at the hearing, as well as the argument and decision on the motion:

After protracted pretrial proceedings, defendant pleaded no contest to all charges and admitted the special allegations on October 6, 2003. The parties agreed there were no promises regarding sentencing and that defense counsel would be filing a Romero motion. Defendant acknowledged that he could receive a maximum sentence of 360 years to life in prison. Immediately after filing his Romero motion, defendant moved to set aside his plea. At defendant's request, a second attorney was appointed to review his plea agreement and Romero motion. In February 2005, defendant's second counsel, Robert Fracchia, advised the court that defendant would not pursue his motion to withdraw his plea, but that he wished to submit supplementary materials in support of his Romero motion. Defendant thereafter filed several supplemental documents in support of his Romero motion, including: a psychosocial history prepared by Dr. ...

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