On March 16, 2011, the court heard argument on petitioner's motion for an evidentiary hearing and expansion of the record. Robert D. Bacon appeared for petitioner; Catherine Tennant Nieto, Deputy Attorney General, appeared for respondent. Following hearing, the court invited supplemental briefing in light of the Supreme Court decision in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011). For the reasons set forth below, the court grants the motion in one respect but otherwise denies it.
Petitioner is a state prison inmate challenging a conviction for the murder of his wife Ronna Franklin. Portions of the state Court of Appeal's decision upholding the conviction, set forth below, illuminate some of the issues raised by the instant motion. By referencing these portions of the decision, the court is not making any findings of fact.
On December 28, 1996, Ronna's 38th birthday, she and defendant went for a ride on a snowmobile defendant had purchased. . . . . It was raining, causing the snow on the ground to turn slushy. As a result of what defendant asserted was an accident, the snowmobile came to rest along the side of a road where there was a three-foot-deep puddle of slushy water.
Deborah and Eric Ingvoldsen were traveling on their snowmobiles when they noticed the Franklins' snowmobile, upright, with the motor still running and the headlight on, stopped in the slushy water at the edge of the road. Just behind the snowmobile, defendant was sitting, immersed in the water up to his chest, leaning back against the snow bank. His head was straight, not leaning to either side. Mrs. Ingvoldsen got off her snowmobile and approached the Franklins' snowmobile on foot. Although defendant was wearing a helmet, she could see that defendant's eyes were closed and his face was flushed. After she yelled to defendant, with no response, Mrs. Ingvoldsen saw a yellow slicker under the water and a helmet floating in the water. Upon closer inspection, she saw Ronna under the water, her eyes wide open and her lips blue. With the help of her husband and Jeff Wisecarver, who had just arrived on the scene from the opposite direction, Mrs. Ingvoldsen pulled Ronna out of the water.
Defendant's color was good, and steam was rising from his chest. Jay Grubbs arrived on the scene, and the three men pulled defendant from the water. . . . It appeared that defendant was conscious but slipping into unconsciousness.
Defendant was taken by sled to a cabin at Grubbs Cow Camp, which was about a quarter-mile from where he was found. En route, defendant's leg slipped off the sled and bent back. Although it appeared to be painful, defendant did not react. Defendant was carried inside the cabin and his clothes were removed. There were no injuries. He mumbled and asked about his wife. Defendant was at the cabin for more than two hours, over which time his mental condition appeared to improve markedly. . . . . . . . An autopsy revealed Ronna's cause of death was drowning. Several ribs had been broken during administration of CPR, but there were no other signs of trauma to the body.
Defendant was taken to the hospital and arrived after Ronna had been pronounced dead. He had no obvious injury, but tests were ordered because he said his abdomen was slightly tender. When told that Ronna died, defendant cried. X-rays and a CAT scan revealed no abnormalities. The attending physician saw no injury that would explain a loss of consciousness. Defendant was admitted to the hospital for an overnight stay because he said he lost consciousness.
While still in the hospital, defendant initially told a California Highway Patrol officer he did not remember anything about the snowmobiling incident. He remembered having lunch, during which he and Ronna both consumed alcohol. They went for a ride on the snowmobile with Ronna riding in front and driving, he told the officer. Defendant believed they hit something but did not remember anything further. . .
The brakes and clutch on the snowmobile were working normally. The tracks of the snowmobile were consistent with someone simply pulling over and stopping. There were no obstructions in the path of the snowmobile that would have caused an accident. Normally, if someone is in a snowmobiling accident, that person falls off to the side or goes over the handlebars. Defendant and Ronna, however, were found behind the snowmobile.
The tracks left by the snowmobile were straight, indicating the snowmobile had not suddenly turned one way or the other. The snowmobile was found upright and there was no indication the front skis on the snowmobile had left the ground, causing a loss of control. Also, if defendant and Ronna had come around the last curve at an excessive speed, they and the snowmobile would have gone off the other side of the road. It did not appear, from the physical evidence at the scene, that there had been a snowmobiling accident.
An accident reconstruction expert, Garrison Kost, conducted tests using a snowmobile. Although he did not attempt to duplicate the exact conditions that existed for the Franklins, the expert concluded from the evidence given to him that the snowmobile was not traveling fast prior to stopping where defendant and Ronna were found. Consequently, the G-forces applied to the riders would not have been strong. A biomechanical engineer, Lawrence Thibault, testified as a prosecution expert that, if defendant had fallen off the snowmobile and struck his head on the snow with his helmet on, the impact would not have been sufficiently strong to cause a concussion. A defense expert testified, however, that the conclusion of the prosecution's expert was unreliable because it did not take into account whether defendant was ejected from the snowmobile.
People v. Franklin, 2003 WL 21518916, at *3-6 (Cal. App. 3 Dist. 2003).
After the conclusion of direct review in the state courts, petitioner filed his habeas petition in this court, raising the issues exhausted through the direct appeal process along with some that were concededly unexhausted. This court granted petitioner's requests for the appointment of counsel and a stay of the proceedings.
During the proceedings on a state habeas petition filed in Plumas County Superior Court, petitioner sought discovery based on California Penal Code section 1054.9, requests that were largely denied.
After exhausting additional issues, petitioner returned to this court on September 10, 2007, filing an amended petition, that raised twenty-two grounds for relief. He thereafter filed a motion for an order permitting him to conduct discovery relating to Dr. Thibault's testimony and calculations concerning the snowmobile incident; to undertake dynamic testing of the snowmobile; to seek materials from the prosecutor's file concerning the prosecutor's relationship with an insurance company that paid for some accident reconstruction and the relationship between an investigator and a witness; and the alleged coordination with Santa Clara County concerning the timing of the filing of a rape charge against petitioner. The court granted the motion as to the first request, but denied it as to all others.
After conducting discovery, petitioner filed the instant motion, seeking an evidentiary hearing on the following claims in the petition: the prosecutor used his peremptory challenges to remove men from the jury (claim four); multiple instances of jury misconduct deprived petitioner of a fair trial (claim six); trial counsel was ineffective by failing to object to the prosecutor's misleading chart or the prosecutor committed misconduct by using the chart (claim nine); counsel was ineffective by failing to undertake the necessary investigation to allow him adequately to cross-examine the prosecution's biomechanical engineering expert (claim eleven); and petitioner was denied a fair trial because he was not permitted to conduct dynamic testing on the snowmobile (claim twelve).
While this motion was pending, the Supreme Court decided Cullen v. Pinholster, ___ U. S. ___, 131 S.Ct. 1388 (2011), which addressed the scope of a court's analysis under § 2254(d)1); the parties have submitted supplemental briefs on the impact of Pinholster on petitioner's motion. ECF Nos. 105, 106.
Also while this motion was pending, petitioner returned to state court with a habeas petition based on the discovery he obtained in this court. He has lodged a copy of the writ and the state court's denial. ECF No. 107, 108.
II. Standards For An Evidentiary Hearing Under The AEDPA The decision whether to grant a hearing is grounded in the Antiterrorism and
Effective Death Penalty Act (AEDPA), which provides in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In Pinholster, the Supreme Court held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits" because that review "focuses on what a state court knew and did." 131 S.Ct. at 1398, 1399. The Court reiterated that "[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court." Id. at 1400. It recognized that "not all federal habeas claims . . . fall within the scope of § 2254(d), which applies only to claims 'adjudicated on the merits in the State court proceedings.'" Id. at 1401; Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir. 2011) ("Pinholster also held that this bar on new evidence is coterminous with the scope of § 2254(d). If a petitioner presents a claim that was not adjudicated on the merits . . . federal review is not necessarily limited to the state record." (emphasis in original)), cert. denied, __ U.S. __, 133 S.Ct. 134 (2012). When the state court's ruling is a summary denial, a petitioner "can satisfy the 'unreasonable application prong of § 2254(d)(1) only by showing that 'there was no reasonable basis'" for the decision. Pinholster, 131 S. Ct. at 1402 (quoting Harrington v. Richter, ___ U.S. ___ , 131 S.Ct. 770, 784 (2011)).
A state court's decision is not entitled to deference under § 2254(d)(1) if its ruling is "contrary to" clearly established federal law, that is, if it applied a rule different from the governing law defined by Supreme Court authority or if its decision is different from Supreme Court authority on a set of materially indistinguishable facts. Under the second prong of § 2254(d)(1), a state court decision is an "unreasonable application" of federal law if it correctly identified the governing legal principle but unreasonably applied it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, whether or not it is correct. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bell v. Cone, 535 U.S. 685, 694 (2002); Sessoms v. Runnels, 691 F.3d 1054, 1058 (9th Cir. 2012), pet. for cert. filed, 81 USLW, Dec. 13, 2012). As the Ninth Circuit has observed, "defining the precise contours of the 'contrary to' and 'unreasonable application' prongs of § 2254(d)(1)" is often difficult. Id.
Pinholster restricts the consideration of evidence that was not before the state court under § 2254(d)(2) as well as under (d)(1), so to determine whether there has been an unreasonable determination of fact, this court must consider the record before the state court. Pinholster, 131 S.Ct. at 1400 n.7 (noting the "additional clarity" in (d)(2), which specifically provides that review is limited to the state record); Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011), cert. denied 133 S.Ct. 105 (2012); Lor v. Felker, No. CIV S--08--2985 GEB DAD P, 2012 WL 1604519, at *5 (E.D. Cal. May 7, 2012), aff'd, 2012 WL 3201961 (E.D. Cal. Jul. 31, 2012).
In Hibbler v. Benedetti, 693 F.3d 1140 (9th Cir. 2012), cert. denied 133 S.Ct. 1262 (2013), the Ninth Circuit examined the concept of an unreasonable determination of fact within the meaning of § 2254(d)(2), recognizing that if the state court's determination of fact was objectively unreasonable it is not entitled to deference under (d)(2). The court in Hibbler said there are two main categories of challenges: "First, a petitioner may challenge the substance of the state court findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact- ...