DEATH PENALTY CASE WARDEN, ORDER
On November 8, 2012, the court held a hearing on the parties' discovery motions and conducted a status conference. Assistant Federal Defenders Allison Claire and Brian Abbington as well as attorney Robert Bloom appeared for petitioner. Deputy Attorney General Glenn Pruden appeared for respondent. After considering the parties' briefs and hearing the arguments of counsel and for the reasons set forth below, the court will grant respondent's motion for discovery and will grant in part and deny in part petitioner's motion for discovery.
The parties in a habeas proceeding are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure 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." Rule 6, Rules Governing § 2254 Cases. Good cause is shown "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." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). The information sought to be discovered must be relevant to the petitioner's claims because it is "reasonably calculated to lead to the discovery of admissible evidence." Fed. Rule Civ. Proc. 26(b)(1).
Petitioner does not oppose respondent's discovery motion and the parties have stipulated to issuance of the protective order attached to petitioner's statement in non-opposition to that motion. (Dkt. No. 451-1.) With respect to petitioner's motion for discovery, respondent does not oppose the issuance of subpoenas to seek the identity of the bailiff who served at petitioner's trial. However, respondent opposes petitioner's three remaining discovery requests. Those discovery requests are therefore addressed below.
I. Petitioner's Request for Discovery of Acker Materials At the penalty phase, prisoner William Acker testified that petitioner had stabbed him in prison. The undersigned ordered an evidentiary hearing on petitioner's claim that his trial counsel was ineffective in failing to challenge this aggravating evidence at the penalty phase. (Dkt. No. 424 at 125-129.) As petitioner points out, the undersigned also intended to order at that time a hearing on petitioner's claim that the trial prosecutor suppressed evidence regarding witness Acker's mental health, history of lying, and cooperation with authorities in the case of Gonzalez v. Wong, 2:95-CV-02345-JVS (C.D. Cal.).*fn1
The discovery at issue here is petitioner's request for evidence submitted under seal in the Gonzalez case. The Ninth Circuit Court of Appeals remanded that case to the district court for consideration of Brady and Strickland issues. In its opinion (see Dkt. No. 420-1), the Ninth Circuit identified the contents of those records as psychiatric evaluations describing Acker's faked suicide attempts and other manipulative behavior, and a diagnosis of him suffering from schizophrenia.
Respondent's primary opposition to petitioner's request for further discovery in this regard is essentially a request for reconsideration of this court's grant of an evidentiary hearing on the issues involving witness Acker. Respondent points out that penalty phase instructions at petitioner's trial show that the jury was required to find unanimously that the stabbing incident allegedly involving Acker occurred in order to consider it an aggravating factor. Petitioner's jury was given a specific verdict form to indicate which incidents of unadjudicated criminal conduct they found unanimously to be true. However, the jury did not indicate it found the incident involving the stabbing of Acker to be true.*fn2 Given the jury's clear indication that they did not consider the evidence that petitioner had stabbed Acker in making their penalty phase determination, petitioner simply cannot show he was prejudiced by any failure of his trial counsel to impeach Acker nor by any suppression of impeaching evidence with respect to Acker by the trial prosecutor.
Petitioner advances several arguments that evidence relating to witness the Acker may nonetheless properly be considered in support of his claims to federal habeas relief. None of those arguments, however, are convincing. First, the language of the jury instruction given at petitioner's trial made clear that the jury was to consider unadjudicated criminal conduct only if it unanimously found that conduct to be true beyond a reasonable doubt. (See RT 10,208:20 -10,211:4.) The instruction also directed the jury to record its findings regarding each instance of unadjudicated criminal conduct on the verdict form provided. (RT 10,209:3-5.) The jury did not mark the allegations regarding the alleged attack on Acker as having been found to be true. (CT 1794.)*fn3 Of course, a jury is presumed to follow the instructions they are given. Weeks v. Angelone, 528 U.S. 225, 234 (2000). Petitioner has not made any showing to overcome that presumption. (See Dkt. No. 455 at 2-4.) This is not a case, like those cited by petitioner, in which although the jury was instructed to disregard evidence, it is "impossib[le] [to] determin[e] whether in fact the jury did or did not ignore" that evidence. See Bruton v. United States, 391 U.S. 123, 136 (1968). Here, the jury was instructed to disregard evidence that it did not unanimously find to be true and the special verdict form reflects that it did not find the challenged evidence to be true.
Petitioner's remaining arguments are also insufficient to justify an evidentiary hearing on the allegations involving witness Acker. The court does not find evidence supporting petitioner's allegations with respect to Acker to be necessary to show a pattern of conduct by either trial defense counsel or by the trial prosecutor. Petitioner needs to support his allegations that his trial counsel erred in failing to impeach each witness and that the trial prosecutor suppressed impeaching evidence for each witness. Whether or not petitioner's trial counsel or the trial prosecutor erred with respect to information involving witness Acker does not show that they erred with respect to other trial witnesses.
Petitioner's final argument is that, if the court finds petitioner's trial counsel acted unreasonably with respect to the evidence involving witness Acker or that the prosecutor suppressed such evidence, then the court may consider that conduct in analyzing the cumulative effect of all such errors. Cumulative error analysis allows the court to consider the aggregate effect of errors that, alone, do not amount to constitutional violations. Wood v. Ryan, 693 F.3d 1104, 1116-17 (9th Cir. 2012). Given the fact the jury did not find the alleged Acker stabbing to be true, there is no effect to the alleged errors regarding that evidence. Therefore, there is simply nothing to add to the cumulative error column. Petitioner has not shown a "reasonable probability" for purposes of his ineffective assistance of counsel or Brady claims that had the jury heard the evidence impeaching witness Acker, the result of the penalty phase of his trial would have been different.
Finally, this court long ago found that petitioner's claims involving witness Acker were not viable. (Dkt. No. 123 at 2-3.) Petitioner's present arguments do not cause the court to now conclude otherwise. Accordingly, this court finds that petitioner has not established good cause for discovery involving trial witness the Acker. Therefore, the court will further amend the June 1, 2012 order so as to now deny petitioner's motion for an evidentiary hearing on the claims regarding witness William Acker's penalty phase testimony.
II. Petitioner's Request for Discovery of LaVaughn Hunter Parole Records The undersigned granted an evidentiary hearing on petitioner's claim that his counsel was ineffective in failing to present the testimony of an expert on prisons at trial regarding, among other things, petitioner's expectation of being released on parole. (Dkt. No. 424 at 65.) Petitioner now seeks to discover all "parole-related" records of LaVaughn Hunter, who was petitioner's co-defendant in the prior 1970 homicide prosecution. According to petitioner, Hunter was paroled from state prison in 1979.
Petitioner has not shown good cause in support of this request for discovery. In his ineffective assistance of counsel claim petitioner alleges that at the time of Gardner's killing in 1980, petitioner had an expectation that he would be paroled shortly and therefore was motivated to behave well in prison. Evidence relevant to this issue would show, according to petitioner, that he in fact had such an expectation. However, petitioner does not allege that he knew in August of 1980 that Hunter had been paroled. Even if he did, the fact of Mr. ...