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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. § 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 applied to a 15 proceeding under these rules." 16

Summary judgment is governed by Federal Rule of Civil Procedure ("FRCP") 56, and thus

17 may be applied to a § 2254 proceeding to the extent that FRCP 56 is not inconsistent with the 18 federal statutes governing collateral review of state criminal convictions. FRCP 56 provides, in 19 relevant part, that "[t]he court shall grant summary judgment if the movant shows that there is no 20 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." 21

22 is 28 U.S.C. § 2254(e)(1), which provides in relevant part that "[i]n a proceeding instituted by an 23 application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State 24 court, a determination of a factual issue made by a State court shall be presumed to be correct." 25

This requirement that a federal court defer to the state court's factual findings is in conflict with the 26 requirement under FRCP 56 that Courts draw all factual inferences in the non-movant's favor. See 27

United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc). 28

summary judgment in this case.

Rule 12 of the Rules Governing Proceedings in the United States District Courts under 28

One aspect of the federal habeas statute that appears to be in square conflict with FRCP 56

A court cannot simultaneously assess all facts in the record in the light most favorable to the 2 non-movant and accept as true the state court's factual findings based on that same record. 3

4 usual summary judgment standard, Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated 5 on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004) ("Therefore, § 2254(e)(1)-which 6 mandates that findings of fact made by a state court are "presumed to be correct"-overrides the 7 ordinary rule that, in a summary judgment proceeding, all disputed facts must be construed in the 8 light most favorable to the nonmoving party."); see also Brian Means, Federal Habeas Manual § 9

Some courts have solved this problem by "substituting" the 2254(e)(1) standard for the

8:36. This procedure, however, would not provide a solution in any case where the state court's 10 findings of fact were not made explicit. This is especially so where there is more than one basis on

which a state court's decision might have rested, as a reviewing federal court cannot easily determine what implied factual findings the state court might have made. 13

Civ. P. 56, 1963 Amendment ("The very mission of the summary judgment procedure is to pierce 16 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.");17

Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir. 1975), disapproved of on other grounds 18 by Hollinger v. Titan Capital Corp., 914 F.2d 1564 (9th Cir. 1990) ("Summary judgment has, as 19 one of its most important goals, the elimination of waste of the time and resources of both litigants 20 and the courts in cases where a trial would be a useless formality."); Mintz v. Mathers Fund, Inc., 21

463 F.2d 495, 498 (7th Cir. 1972) ("The primary purpose of a motion for summary judgment is to 22 avoid a useless trial.") In a proceeding where there is no provision for trial, the summary judgment 23 cannot serve this function. Indeed, the Habeas Rules contemplate an answer and reply (Rule 5), an 24 evidentiary hearing in some cases (Rule 8), and the entry of an order with or without a certificate of 25 appealability (Rule 11), but they do not contemplate either a trial or an additional set of briefing or 26 hearing, which actually adds a step rather than serving FRCP 56's function of reducing the burden 27 on the court. 28

Moreover, the procedures of federal habeas review are inconsistent with the purpose of

FRCP 56. FRCP 56 exists to prevent the need for trial. See Advisory Committee Notes, Fed. R. 15

Moreover, "[u]nder AEDPA evidentiary hearings in federal court should be rare." Cullen v. Pinholster, 131 S. Ct. 1388, 1411, (2011). Summary judgment proceedings in cases that will 3 ultimately largely be resolved without evidentiary hearings anyway seem largely duplicative with 4 the routine consideration of § 2254 petitions, though, as explained above, with a troublingly 5 different standard for reviewing the factual record. Rather, in § 2254 cases where a live hearing to 6 resolve the factual record is not necessary, the proper way for the Court to conserve its resources in 7 the absence of a factual dispute is usually to deny an evidentiary hearing and defer to the existing 8 factual record as determined by the state court. 9

Finally, the rules for § 2254 proceedings provide a mechanism for courts to rule on

10 petitions where the factual record clearly does not support relief: the Preliminary Review descried 11

in Habeas Rule 4 ("If it plainly appears from the petition and any attached exhibits that the 12 petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct 13 the clerk to notify the petitioner."). Though there is no facial conflict between this rule and FRCP 14

56, the two appear intended to serve the same purpose of disposing of cases where the factual 15 record cannot support relief before they reach the final stages of adjudication. The fact that 16

Congress provided a specific procedure for habeas corpus militates against also allowing the use of 17 the more general procedure. In sum, although not in explicit conflict with FRCP 56, the Habeas 18

This case is particularly inappropriate for the kind of merging of standards that would be

20 required to reconcile FRCP 56 with § 2254 because there is considerable uncertainty about the 21 contents of the state court record. There appears to have been additional evidence before the Court 22 of Appeal that was not before the Superior Court, but only the Superior Court wrote an opinion. 23

Mot. at 12; see also Pet. Exh. ZZA (declaration of Petitioner concerning whether he would have 24 pleaded guilty, submitted for the first time to Court of Appeal). Additional evidence was also 25 submitted to the California Supreme Court on appeal of the Court of Appeal's denial. See 26

Worthington submitted in California Supreme Court). Both of these declarations are central to 28

Rules are a poor fit with FRCP 56. 19

Attachment to Exhibits for Petition for Writ of Habeas Corpus (Declaration of Thomas 27

Petitioner's motion, and thus the state court's treatment of these declarations is critical to this 2

Court's resolution of Petitioner's claims. See Mot. at 6, 13 (discussing the additional declarations). 3

4 whether, in light of the factual record, there is any reasonable explanation for the denial that would 5 not constitute an unreasonable application of clearly established federal law. See Harrington v. 6

In regular § 2254 review, the Court can simply take a summary denial and consider

Richter, 131 S.Ct. 770, 784-85. Although this analysis of course entails a consideration of the 7 factual record, it does not require the type of detailed piece-by-piece analysis of the factual record 8 required by a motion for summary judgment, because a court need only determine whether there 9 exists a possible reasonable underpinning for the state court's conclusion. Thus, a reviewing court 10 faced with a summary denial can consider what a state court might reasonably have concluded.

See Richter, 131 S.Ct. at 784. A court considering a motion for summary judgment, in contrast,

must determine whether there is any genuine issue of material fact. As explained above, in order to 13 give effect to the requirements of § 2254(e)(1), this Court would have to take all the facts as the 14 state court determined them. In considering the underpinnings of a state court decision, this Court 15 would normally look to the last reasoned state court opinion. See Ylst v. Nunnemaker, 501 U.S. 16

797, 805-06 (1991). In this case, however, the record before the Superior Court, which issued the 17 last reasoned opinion, is not the same as the record before the Court of Appeal, a higher state court 18 that also denied the Petition. There is thus a written opinion to which this Court would normally 19 defer, but that opinion did not make factual findings based on certain key evidence on which 20

Petitioner now wishes to rely. The Court of Appeal, which did consider that evidence, was silent 21 as to factual findings. This is a good example of precisely the type of procedural morass that will 22 result from importing the summary judgment procedure from regular civil cases to the already 23 extremely complex set of procedures governing § 2254 petitions. 24

25 will get when the Court considers his complete petition. Though Petitioner has requested an 26 evidentiary hearing, the Supreme Court has explicitly instructed that district courts considering 27 petitions under § 2254(d) may not consider evidence first brought to light in such a hearing, but are 28 rather limited to the record that was before the state court. See Pinholster, 131 S. Ct. at 1398.

Finally, it is not clear how the review Petitioner seeks now is different from the review he

Thus, in assessing Petitioner's claim under § 2254(d), the Court will consider Petitioner's claims in 2 light of the state court record -- precisely what Petitioner is asking for now. To the extent that there 3 is a difference, it appears to be in the treatment of the facts, a difference which highlights the 4 inappropriateness of considering such a motion now. 5

As explained above, there is a poor fit between FRCP 56 and the rules and statutes

6 governing federal court review of a state court conviction. The difficulties are compounded in this 7 case due to the lack of clarity in the contents of the state court record. Accordingly, the Court finds 8 that a motion for summary judgment is not appropriate in this case, and DENIES Petitioner's 9 motion. 10


For the Northern District of California


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