The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING MOTION FOR DISCOVERY [Docket No. 53];
GRANTING IN PART AND DENYING IN PART
MOTION FOR JUDICIAL NOTICE
[Docket No. 60]
DENYING MOTION TO COMPEL
FOR SANCTIONS [Docket No. 61];
RESPONDENT TO COMPLY WITH ORDER [Docket No. 63]; GRANTING MOTION FOR JUDICIAL NOTICE [Docket No. 64.] AND REQUIRING SUPPLEMENTAL LODGMENTS
On February 22, 2010, Petitioner Richard Charles Buchanan ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is a California prisoner serving a term of forty-five years to life plus ten years who is challenging his convictions for kidnapping for extortion, assault with a semi-automatic firearm, making a criminal threat, being a felon in possession of a firearm, transportation of a controlled substance, possession of a controlled substance for sale, and possession of a controlled substance. (Lodgment 7 at 1-2.)
On February 22, 2010, Petitioner filed a Petition for Writ of Habeas Corpus. [Docket No. 1.] On December 9, 2010, Petitioner filed the First Amended Petition ("FAP"), the active pleading in this case. [Docket No. 40.] On the same day, Petitioner moved to have exhibits from his original Petition attached to the FAP and that motion was granted on December 14, 2010. [Docket No. 43.] On March 9, 2011, Respondent filed an Answer to the FAP.*fn1 [Docket No. 51.] On March 24, 2011, Petitioner filed a Motion for Discovery [Docket No. 53.] On or about April 28, 2011, Petitioner filed a motion for Judicial Notice [Docket No. 60], a Motion for Sanctions [Docket No. 61], and a Motion to Compel Respondent to Comply with Order [Docket No. 63.] On May 9, 2011, Petitioner filed a Second Motion for Judicial Notice. The Court will address each of these motions in turn.
B. Grounds Asserted in the FAP
Petitioner asserts 11 claims in his petition: (1) the prosecutor used perjured testimony to obtain the conviction, in violation of Petitioner's rights to a fair trial and due process; (2) there was no probable cause or reasonable suspicion of criminal activity to support the detention of Petitioner's vehicle, in violation of Petitioner's right to be free of unreasonable searches and seizures; (3) the conviction was based on false wiretap evidence; (4) the state failed to disclose "Brady" evidence that it had in its possession; (5) judicial bias contributed to Petitioner's conviction, denying him of his due process and fair trial rights; (6) the excessive security imposed on Petitioner at trial was not reasonably necessary; (7) the conviction was obtained based on prosecutorial misconduct; (8) the scope of the expert gang evidence and expert opinion admitted was prejudicially erroneous, and/or defense counsel was ineffective in failing to object to the scope of the expert testimony; (9) counsel was ineffective based on a number of acts and omissions that deprived Petitioner of his sixth amendment right to counsel and right to a fair trial; (10) Appellate Counsel was ineffective for failing to raise Grounds 1-7 and 11 on direct appeal; and (11) the sentencing court exceeded its authority in imposing $10,000 fine of restitution. First Amended Pet'n at 6-9.*fn2
In July of 2004, a cooperating witness with the FBI gave Petitioner, a validated member or "Big Homie" of the Mexican Mafia, a cell phone with a wiretap in it. (California Court of Appeals Order Denial of Habeas Petition, Lodgement 7 at 3.) Rodney Brooks, an associate of the Mexican Mafia incarcerated at Donovan, was also given a cell phone with a wiretap in it. (Id.) Jessica Chavez was a correctional officer at Donovan State Prison ("Donovan") (Id. at 4.) Ernesto "Triste" Torres was an inmate at Donovon. (Id.) After Torres was released in May of 2004, he began a sexual relationship with Jessica Chavez. (Id.) After the relationship soured, Petitioner and Brooks were recorded on phone conversations directing Torres to stop contacting Chavez because she was the connection to doing business at Donovan. (Id. at 5.) Because of the threats recorded against Torres, the police set up surveillance of Chavez's residence and were aware that Torres was in a car with Petitioner and another associate, Parraz. (Lodgement 27 at 74-77.). Officer McGivor of the San Diego County Violent Crimes Task Force contacted Officer Javier Nunez, who was in a marked patrol unit, and asked him to stop the vehicle because they were afraid that Petitioner would kill Torres. (Lodgment 7 at 7, Lodgment 27 at). Officer Nunez stopped the car. In order to avoid revealing the existence of the wiretap to Petitioner, Officer Nunez told Petitioner that the car had been stopped due to their belief that a parolee at large was in the vehicle. (Lodgment 27 at 35.)
At the original criminal trial, Petitioner moved to suppress all evidence arising out of the traffic stop, arguing that the police had no reasonable suspicion to stop the car. (Lodgment 27 at 124-25.) Officers Nunez and McGivor testified at the hearing. (Lodgement 27 at 32-122.) The Court found that the evidence collected from the wiretaps provided sufficient probable cause to stop the car and denied the Motion to Suppress. (Id. at 128-130.)
A. First Motion For Judicial Notice
On April 28, 2011, Petitioner filed a Motion for Judicial Notice asking the Court to take judicial notice of three facts: 1) two differently paginated sets of Official Court Reporter's Transcript exist for his trial, Case Number SCS187166 ( the "Transcript"); 2) Petitioner had previously raised the possibility of multiple versions of the Transcript; and 3) Respondent did not notify the Court of the existence of the discrepancy.
Federal Rule of Evidence 201 allows a court to take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Additionally, a " court shall take judicial notice if requested by a party and supplied with the necessary information. Fed. R. Evid. 201(c). Judicial notice, however, is inappropriate where the facts to be noticed are irrelevant. Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n. 13 (9th Cir.1998); Turnacliff v. Westly, 546 F.3d 1113, 1120 n. 4 (9th Cir. 2008.) Petitioner asks the Court to take judicial notice of the fact that he has in his possession an Official Court Reporter's Transcript in Case Number 187166 that is paginated differently from the Official Court Reporter's Transcript found at Lodgement Numbers 25-36. Petitioner explains that he received his copy of the Transcript "piecemeal" from Rodney Brooks, a co-defendant who was severed from the case prior to trial. (Decl. ISO Mtn for Judicial Notice at ¶ 4.) On March 30, 2011, Petitioner filed a Motion for Order to Provide Petitioner Copy of Respondents' Lodgment Items 21-36. [Docket No. 54.] On April 5, 2011, the Court granted Petitioner's motion and ordered Respondent to serve the lodgement items and file a proof of service. [Docket No. 55.] On April 8, 2011, Respondent filed a proof of service confirming the delivery of the lodgment items to Petitioner. [Docket No. 56.] Petitioner admits receiving the Lodgment items on April 5, 2011. (Decl. ISO Mtn for Judicial Notice ¶
A review of the evidence verifies that Petitioner does possess a copy
of the Transcript that is paginated differently from Lodgments 25-36.
The Court has compared Exhibit 4 of the FAP with Lodgment 27 and finds
that the pagination is indeed different despite the fact that both
documents are entitled "Reporter's Transcript" for February 28, 2006.
There are, however, some differences. Lodgement 27 has an additional
cover page entitled "Reporter's Transcript on Appeal; February 28,
2006; Volume 3 Pages 30-195 (196-211 Sealed.)" The next page in
Lodgment 27, also a cover page, contains the notation "Volume 3" and
the testimony starts on page 30. In Exhibit 4, there is no
to a volume 3 and the testimony begins on page 1."*fn3
The reason for this difference appears to be that the copy
that Petitioner obtained from Mr. Brooks contains only those
transcripts which concern Mr. Brooks whereas Lodgments 25-36 contain
all transcripts relating to Petitioner. For example, Lodgments 25 and
26 (transcript pages 1-29) did not involve Mr. Brooks and may have
been excluded in the Official Reporter's Transcript prepared for Mr.
Brooks. This would explain why the Brooks version of the transcript
starts at page 1 on February 28, 2006 whereas Lodgement 27 is volume 3
and starts at page 30. Thus, the fact that the Brooks set of the
Reporter's Transcript is paginated differently than the Lodgments
25-36 in this case is capable of accurate and ready determination by
resort to the official documents on file in this case. Similarly, a
review of the FAP reveals that Petitioner did raise the possibility of
conflicting transcripts at page 9 (6 of 8) in relation to Ground 9.
Petitioner asserted that his appellate counsel cited to the wrong
pages of the Transcript. Moreover, this fact may be relevant to
explain why Petitioner's citations to evidence have been inaccurate
prior to his receiving the correct Reporters Transcript for his case.
Accordingly, the Court Grants in Part Petitioner's Motion to take judicial notice as to the fact that two transcripts exist (one for Mr. Brooks and one for Petitioner) and the fact that Petitioner had raised this possibility previously in this case. The Court Denies the motion as to the fact that Respondent failed to notify the court as of the discrepancy. The Court is aware of no duty on the part of Respondent to investigate the reasons for Petitioner's incorrect citation of evidence and finds this fact is not relevant to any issue in the Petition.
B. Second Motion For Judicial Notice
On May 9, 2011, Petitioner filed a Motion for Judicial Notice of Written Error. [Docket No. 64.] On April 29, 2011, Petitioner filed a Motion to Compel [Docket No. 63.] On page 14 of the Motion to Compel, Petitioner wrote on the first line "NOTED AT #2 of Page Two of Motion." Petitioner intended to write "NOTED AT # 2 of Page Three of the Motion. The fact that Petitioner wrote the wrong number in his motion is not suitable for Judicial Notice because it is neither generally known nor capable of accurate and ready determination. Accordingly, the Motion for Judicial Notice is DENIED. The Court, however, has no reason to doubt that an error in writing occurred and hereby Orders the Clerk of Court to substitute corrected page 14 as attached to Docket Number 64 for the original page 14 in the Motion to Compel [Docket No. 63.]
C. Motion to Compel Respondent to Comply with Order
On April 29, 2011, Petitioner filed a Motion to Compel Respondent to Comply with Order to Provide All Records. [Docket No. 63.] Petitioner claims that Respondent has failed to comply with this Court's Order dated September 15, 2010 entitled "Order Requiring Response to Petition" [Docket No. 29.] The Order required: "At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claims." Petitioner asserts that Respondent did not comply with this directive because it did not lodge: 1) wiretap or other evidence that supports Detective McGivor's testimony at the original criminal trial (which Petitioner claims was false); 2) Records ...