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Dion Gussner v. Terry Gonzalez

February 5, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Court


United States District Court For the Northern District of California

Petitioner Dion Gussner ("Petitioner"), a California prisoner currently incarcerated at the California Men's Colony, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 19 on April 16, 2012. ECF No. 1. Respondent has filed an answer addressing the merits of the 20 petition, ECF No. 11, and Petitioner has filed a traverse. ECF No. 29. Now before the Court is 21 Petitioner's motion for summary judgment ("Mot."). ECF No. 20. Respondent has filed an 22 opposition to this motion, ECF No. 26, and Petitioner has filed a Reply. ECF No. 30. Pursuant to 23 Civil Local Rule 7-1(b), the Court deems this motion suitable for decision without oral argument 24 and hereby VACATES the motion hearing and case management conference set for February 7, 25 2013. Having considered the parties' submissions, the record in this case, and the relevant law, the 26 Court DENIES Petitioner's motion for summary judgment. 27


Penal Code § 12022.9(b), Great Bodily Injury -- Brain Injury or Paralysis, and Vehicle Code § 4 23558 -- Multiple Victims; and stipulated to an upper term sentence. He was sentenced to 16 years 5 in prison. See Exh. AAA to Petition for Writ of Habeas Corpus, Order of Monterey County 6 Superior Court ("Superior Court Opinion"), at 2. Petitioner then filed a petition for a writ of 7 habeas corpus in Monterey County Superior Court, alleging ineffective assistance of counsel. The 8

On August 18, 2009, Petitioner pled guilty to one count of violation of Penal Code § 191.5(a), Gross Vehicular Manslaughter While Intoxicated; admitted two enhancements under 3

Superior Court denied the petition in a written order dated July 1, 2011. Petitioner then filed a 9 petition in the California Court of Appeal for the Sixth District, again seeking relief for ineffective 10 assistance of counsel. The Court of Appeal summarily denied the petition on December 2, 2011.

Petitioner then filed a petition for review of this denial in the California Supreme Court. The California Supreme Court denied review without an opinion on February 16, 2012. Petitioner filed 13 his Petition in this Court on April 16, 2012. Petitioner then filed this motion for summary 14 judgment on October 11, 2012. 15

17 procedures in habeas corpus proceedings. Indeed, the Supreme Court explicitly allowed the 18 practice. Walker v. Johnston, 312 U.S. 275, 284 (1941); Blackledge v. Allison, 431 U.S. 63, 80-81 19

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), PL 104--132, April 24, 1996, 21 110 Stat 1214, worked a significant change in federal habeas corpus review of state court criminal 22 convictions and severely limited the scope of review. Thus, the Supreme Court's earlier approval 23 of summary judgment during habeas proceedings does not necessarily mean that summary 24 judgment remains appropriate in a habeas proceeding governed by AEDPA. The Supreme Court 25 has not addressed the question since 1977. The most recent case Petitioner cites on the question of 26 the appropriateness of summary judgment in habeas corpus proceedings is from 1990. See Mot. at 27

3 (citing Johnson v. Rogers, 917 F.2d 1283, 1284-84 (10th Cir. 1990)). Thus, there does not 28 appear to be any clear authority on the subject under the modern statute.


It was once uncontroversial for courts to consider summary judgment motions or similar (1977). However, these decisions concerned earlier versions of the federal habeas corpus law. The 20

2 decided summary judgment motions on § 2254 petitions without comment on the appropriateness 3 of doing so. See, e.g., Rowland v. Chappell, C 94-3037 WHA, 2012 WL 4715262 (N.D. Cal. Oct. 4

2, 2012). At least one court has concluded that to do so would be inappropriate. See Buchanan v. 5

Foster, No. 3:06-cv-00340-LRH-RAM, 2007 WL 2459289 (D. Nev. Aug. 24, 2007). Still other 6 courts have explicitly considered the apparent tension between the requirements for summary 7 judgment and the procedures under § 2254, and have, with varying degrees of hesitation, gone 8 ahead to decide the motion. See, e.g., Smith v. Cockerell, 311 F.3d 661 (5th Cir. 2002); Gentry v. 9

Lower courts have not been consistent in their treatment of the issue. Some courts have Sinclair, 576 F. Supp. 2d 1130, 1139 (W.D. Wash. 2008). Given the absence of guidance or 10 consensus, the Court will undertake an analysis of the appropriateness of considering a motion for

U.S.C. ยง 2254 ("Habeas Rules") provides that "[t]he Federal Rules of Civil Procedure, to the extent 14 that they are not inconsistent with any statutory provisions or these rules, may be ...

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