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Frye v. Wong

United States District Court, E.D. California

August 28, 2014



LAWRENCE K. KARLTON, District Judge.

Petitioner Jerry Grant Frye is incarcerated in San Quentin State Prison, under a death sentence. He is presently before this court seeking a writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner requests reconsideration of the Magistrate Judge's denial of an objection to the admission of certain expert testimony. Respondent opposes the request. For the reasons set forth below, petitioner's request will be denied in its entirety.


Petitioner initiated this federal habeas corpus proceeding on March 29, 1999. The case was initially assigned to former Magistrate Judge John F. Moulds. When Magistrate Judge Moulds subsequently recused himself, the case was reassigned to then-Magistrate Judge Kimberly J. Mueller, on December 20, 2004. (ECF Nos. 188, 189.) Upon the latter's confirmation as U.S. District Court Judge, the case was reassigned to Magistrate Judge Dale A. Drozd on January 6, 2011 (ECF No. 564), then to Magistrate Judge Edmund F. Brennan on February 18, 2011 (ECF No. 574), and then to Magistrate Judge Carolyn Delaney on August 2, 2011. (ECF No. 596.)

Petitioner filed the operative Second Amended Petition for Writ of Habeas Corpus, which contains 45 claims for relief, on March 31, 2003. ("Second Amended Petition, " ECF No. 104.) An Answer was filed on July 1, 2003. (ECF Nos. 112, 113.)

On July 19, 2004, petitioner filed a motion for an evidentiary hearing. (ECF No. 162.) On October 11, 2005, the Magistrate Judge heard argument on this motion. (ECF No. 202.) On December 1, 2006, having allowed time for supplemental briefing, the Magistrate Judge granted the motion in part, permitting an evidentiary hearing to proceed on petitioner's claim 2 (ineffective assistance of counsel at the guilt phase, based on failure to adequately investigate and present evidence that would support a mental state defense), claim 3 (ineffective assistance of counsel at the guilt phase, based on his attorneys' failure to develop and present a coherent trial strategy), claim 25 (interference with petitioner's Sixth Amendment right to counsel, due to jailers' decision to take petitioner off of anti-anxiety medications prior to the penalty phase), claims 28 and 29 (ineffective assistance of counsel at the penalty phase, based on failure to investigate and present evidence regarding petitioner's mental health, his use of drugs and alcohol, and his past history), and claim 44 (alleged violation of petitioner's Fifth and Fourteenth Amendment rights, based on contention that jury members saw petitioner shackled, despite judge's instruction that he not be shackled in the courtroom), as well as certain allegations in his claim 7 (ineffective assistance of counsel, evinced by a failure to object when the prosecutor vouched for a key witness's credibility) and claim 42 (alleged violation of petitioner's Sixth Amendment rights, due to juror misconduct in communicating with her minister, in violation of the Sixth Amendment). (ECF No. 214.)

Both sides filed motions for reconsideration of this order, which were in turn referred to this court. (ECF Nos. 217, 218.) On December 13, 2007, the court denied both motions. (ECF No. 227.)

On June 20, 2008, respondent filed an expert witness disclosure regarding Dr. Reese T. Jones, M.D., whose testimony at the evidentiary hearing is the subject of the instant motion for reconsideration. (ECF No. 298.) Dr. Jones was then a Professor of Psychiatry at the University of California-San Francisco School of Medicine.[1] ("Reese Jones Declaration" ¶ 1, ECF No. 298-1.)

On August 28, 2008, petitioner took Dr. Jones's deposition. ("Reese Jones Deposition, " ECF No. 384.)

On October 31, 2008, petitioner filed a document entitled "Motion in Limine Regarding Claims 2, 3, 7, 25, 28 and 29, " in which petitioner objected, inter alia, to the admission of Dr. Jones's testimony at the evidentiary hearing. (ECF No. 371.) Petitioner's objections were as follows:

1. As a psychiatrist, Dr. Jones was not qualified to give expert opinions regarding neurology or neuropsychology.
2. Dr. Jones ought to be restricted to testifying solely regarding conclusions contained within his expert report.
3. Dr. Jones reviewed petitioner's medical records from San Quentin Prison, in violation of federal privacy laws.
4. Dr. Jones failed to bring to his deposition all of the materials he had reviewed and relied upon in forming his conclusions, and failed to supplement his testimony with this information post-deposition. (Id. at 12-18.)

On November 7, 2008, respondent filed an opposition disputing each of these objections. (ECF No. 380.)

Upon considering petitioner's objections, the Magistrate Judge ordered respondent to file a declaration from Dr. Jones (i) summarizing his qualifications to testify in the fields of neurology and neuropsychology and (ii) indicating whether he had provided petitioner with all of the documents he reviewed. (ECF No. 388.) The Magistrate Judge also ordered that Dr. Jones's testimony be limited to the subject matter of his expert report and deposition, with the proviso that, in rebuttal, he could testify outside the scope of these documents to the extent that petitioner's experts exceeded them. (Id.) On November 18, 2008 respondent filed the declaration of Dr. Jones, as ordered. (ECF No. 390.)

In an order dated May 12, 2009, the Magistrate Judge denied without prejudice petitioner's request to exclude Dr. Jones's testimony. (ECF No. 470.) On August 3 & 4, 2009, the Magistrate Judge heard testimony from Dr. Jones regarding petitioner's claims 2 and 25. (ECF Nos. 497-98, 502-503.) At the hearing, petitioner objected to Dr. Jones's qualifications to testify as an expert under Fed.R.Evid. 702 ("Reese Jones Testimony" 102-119, ECF No. 502.) The Magistrate Judge overruled the objection without prejudice, but announced her willingness to receive briefing on the question. (Id. 120.) On August 5, 2009, the Magistrate Judge issued an order setting a briefing schedule on the question. (ECF No. 500.)

On October 23, 2009, pursuant to the briefing schedule, petitioner renewed his motion to exclude Dr. Jones's testimony, contending that it should have been excluded under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993). (ECF No. 511.) On August 10, 2010, the Magistrate Judge denied the renewed motion. ("Order, " ECF No. 524.) On September 23, 2010, petitioner filed the request for reconsideration that is presently before the court. ("Request, " ECF No. 532.) On October 22, 2010, respondent filed an opposition. ("Opposition, " ECF No. 542.) The Request was then taken under submission by this court.

On December 4, 2013, the Magistrate Judge issued findings and recommendations regarding petitioner's habeas corpus petition.[2] (ECF No. 632.) She therein recommends denial of petitioner's claims 2, 3, 4, 5, 7, 25, 37, 42, and 44, and resumption of the evidentiary hearing on petitioner's claims 28 and 29. While the Magistrate Judge's findings and recommendations cannot, and do not, influence the court's ruling herein, it bears mention that the findings and recommendations at no point refer to Dr. Jones's testimony, and the Magistrate Judge appears not to have relied on Dr. Jones's testimony in any way. (Id.) Respondent's objections to these findings and recommendations also make no reference to Dr. Jones's testimony. (ECF No. 640.)

The court also notes that Cullen v. Pinholster , 563 U.S. ___, 131 S.Ct. 1388 (2011), decided after Dr. Jones gave his testimony, bears on the ultimate admissibility of Dr. Jones's testimony. Under Pinholster, a federal court that is evaluating a capital habeas petition may not consider evidence which was not before the state court in making a determination as to whether the state court decision was contrary to law or unreasonable (as 28 U.S.C. § 2254 defines those terms). In other words, Dr. Jones's testimony could only be considered if the court overruled the Magistrate Judge's recommendations that it deny petitioner's claims 2 and 25. So even if the court were to grant petitioner's motion herein, the net effect would only be to strike Dr. Jones's testimony from the record until such time as the Magistrate Judge had to revisit the issue, a contingency which might never occur.


Petitioner's reconsideration request has been under submission for nearly four years. In considering it, the court will apply the legal standards presently in effect, rather than those that were in effect when the challenged decision was rendered. In doing so, the court follows the general principle that "the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.'" Henderson v. United States, ___ U.S. ___ , 133 S.Ct. 1121, 1126 (2013) (quoting United States v. Schooner Peggy , 1 Cranch 103, 110 (1801) (Marshall, C.J.)). Accord Tully v. Mobil Oil Corp. , 455 U.S. 245, 247 (1982) ("The normal rule in a civil case is that we judge it in accordance with the law as it exists at the time of our decision.").

A. Standard re: reconsideration

28 U.S.C. § 636(b)(1)(A) provides:

Notwithstanding any provision of law to the contrary... a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except [certain specified matters]. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a) similarly provides:

When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. [...] The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

"The way in which parties may object to magistrates' rulings under Rule 72(a)... is governed by local rules." 12 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure: Civil § 3069 (2d ed. 2014).

Under Local Rule 303(c), "A party seeking reconsideration of the Magistrate Judge's ruling shall file a request for reconsideration by a Judge.... Such request shall specifically designate the ruling, or part thereof, objected to and the basis for that objection." Local Rule 303(f) provides that "[t]he standard that the assigned Judge shall use in all such requests is the clearly erroneous or contrary to law' standard set forth in 28 U.S.C. § 636(b)(1)(A)."

An order is "clearly erroneous" if "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." U.S. v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948). "[R]eview under the clearly erroneous' standard is significantly deferential...." Concrete Pipe and Prods. v. Constr. Laborers Pension Trust , 508 U.S. 602, 622 (1993).

Under the "contrary to law" standard, a district court may conduct independent review of purely legal determinations by a magistrate judge. Computer Econ., Inc. v. Gartner Grp., Inc. , 50 ...

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