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Stanley v. Warden, San Quentin State Prison

United States District Court, Eastern District of California

December 19, 2014

JERRY F. STANLEY, Petitioner,
v.
WARDEN, San Quentin State Prison, Respondent.

ORDER

CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

On December 10, 2014, the undersigned held a hearing on petitioner's counsel's motion to impose sanctions on attorney Jack Leavitt. Petitioner's appointed attorneys Joe Schlesinger and Tivon Schardl appeared, as did Mr. Leavitt. The court first considered Mr. Leavitt's request for reconsideration (ECF No. 968). Because Mr. Leavitt does not represent petitioner in these proceedings and because Mr. Leavitt provided the court no reason to reconsider its order limiting Mr. Leavitt to filing only a response to the motion for sanctions, the request for reconsideration will be denied. Next, the court noted Mr. Leavitt's concerns, expressed in his request for reconsideration, that he had not received service of the court's November 10 and November 26, 2014 orders. The docket reflects that the Clerk's Office served copies of both orders upon Mr. Leavitt by U.S. mail to the address Mr. Leavitt has used in documents filed here, 1019 Merced St., Berkeley, CA 94707. If Mr. Leavitt wishes mail from the court to be sent to a different address, he should provide it. The court then turned its attention to petitioner's motion for sanctions.

MOTION FOR SANCTIONS

Petitioner's counsel seek the imposition of sanctions against attorney Jack Leavitt for violation of orders which prohibit Mr. Leavitt from filing documents or appearing in this matter. Petitioner's counsel's motion is considered with the history of this litigation in mind.

I. Background

In an October 22, 2002 order, Magistrate Judge Hollows, who was previously assigned to this case, set out in some detail the actions of petitioner Stanley and attorney Leavitt which had delayed and complicated these proceedings. Judge Hollows described petitioner's continual complaints about "every attorney and jurist who has been involved in this case." (ECF No. 365 at 2.) He also described the seesawing nature of petitioner's complaints. While petitioner has requested dismissal of these proceedings at various times, he appears to have changed his mind just as frequently. (Id at 3-7.) Between 1998 and 2002, some of the filings were made by attorney Jack Leavitt. (Id.)

Judge Hollows found that petitioner had authorized his petition to go forward and determined that he would "not entertain any further requests to find to the contrary, nor will the court entertain prospective, related requests to withdraw the petition." (Id at 8-9.) Judge Hollows further found attorney Leavitt had aided in petitioner's "quest to disrupt these proceedings, and the record in this case reflects his only purpose for being 'retained' by petitioner Stanley is to continue the disruption." (Id at 9.) Judge Hollows specifically ordered that "Attorney Leavitt is not permitted to appear in this action, and he shall file no further pleadings in this action." (Id.) "Further filings by attorney Leavitt in this case will result in sanctions or contempt proceedings."

Less than a year later, attorney Leavitt was back (See ECF Nos. 385, 437 at 2-4.) and petitioner Stanley continued to submit numerous pro se filings. In December 2003, petitioner's counsel filed a motion to sanction Mr. Leavitt. (ECF No. 409.) In January 2004, Judge Hollows held a hearing on the motion. Attorney Leavitt's position was that he had filed documents on petitioner Stanley's behalf because "he was Stanley's real lawyer and the court should recognize him as such." (ECF No. 437 at 4.) Judge Hollows found that Mr. Leavitt had violated the October 22, 2002 order and had done so in bad faith. (Id.) In February 2004, Judge Hollows imposed over $10, 000 in sanctions for actions Mr. Leavitt had taken in federal court. (Id at 7.) Judge Hollows declined to impose sanctions for Mr. Leavitt's actions outside this federal habeas proceeding, finding those issues better addressed by the State Bar. (Id at 6.) Mr. Leavitt sought reconsideration of the imposition of sanctions. In May 2004, the district judge denied that request. (ECF No. 458.) In doing so, the district judge noted that the points raised by attorney Leavitt "are not relevant and raise no issues of material fact." (Id at 4.)

Since May 2004, petitioner Stanley has filed dozens of pro se letters, which, among other things, complain about his attorneys, complain about judges assigned to this case, request dismissal of the case, and contradict claims made in the petition which he had approved. While petitioner attached documents showing attorney Leavitt's involvement in proceedings in Tehama County, with the prison, with the FBI, with the State Bar, and in state court, as petitioner's "retained attorney, " it does not appear that Mr. Leavitt filed anything in this court until recently.

On October 19, 2005, petitioner filed a pro per request for a competency determination because he felt he was "not competent to assist my attorneys any further." (ECF No. 566.) In November 2005, petitioner's appointed attorneys followed up on that request by making a formal motion to determine petitioner's competency. (ECF No. 579.) Petitioner filed a second pro se request for a competency determination in December 2005. (ECF No. 595.) On December 21, 2005, Judge Hollows found petitioner's conduct manipulative, rather than indicative of incompetence, and rejected the request for a competency proceeding. (ECF No. 611.) The district judge adopted that recommendation. (ECF No. 654.) Since then, petitioner has filed several pro se requests to "reopen competency hearing." (ECF Nos. 769, 774, 782, 870.)

In April 2007, the Court of Appeals ordered this court to respond to petitioner's request "to remove his current habeas counsel based upon alleged irreconcilable conflicts and complaints of neglect." (ECF No. 802.) In that proceeding, Ninth Circuit case no. 07-71216, the Court of Appeals received responses from respondent, Judge Hollows, [1] petitioner Stanley, and attorney Jack Leavitt. According to the Court of Appeals' docket, Mr. Leavitt's declaration was filed "in support of Jerry Stanley's petition contending that a conflict exists with his court-appt'd attys." On September 4, 2007, the Court of Appeals denied Stanley's pro se petition for mandamus relief. (ECFNo. 819.)

In 2011 this case returned to state court for a determination of the feasibility of a retrospective competency proceeding and, after it was determined to be feasible, a competency proceeding. The feasibility proceeding was initiated by the state in Butte County, where petitioner's trial was held. Petitioner was appointed a local attorney, Dennis Hoptowit. Attorney Leavitt attempted to be appointed in that proceeding, but the judge refused. (ECF No. 945-1 at 6-7.) When the case was transferred to Lake County for the competency proceeding, petitioner requested attorney Leavitt's appointment. The state's attorney told the Lake County judge that Mr. Leavitt had been barred from appearing in federal court and in Butte County. Petitioner argues Mr. Leavitt mislead the Lake County judge by claiming that he had not exactly been "barred" from appearing in other courts. The Lake County judge appointed Mr. Leavitt as petitioner's counsel for purposes of the retrospective competency proceeding.

Petitioner Stanley was the only witness at the 2011 competency hearing. (ECF No. 947 at 5.) He testified that he was competent at the time of his 1993 trial. He also testified that the allegations regarding juror Mitts' misconduct at the 1993 competency trial (that she failed to reveal on voir dire that she had been the victim of sexual assault) were known to his trial attorneys and that his federal attorneys have perpetrated a fraud on this court by making that juror misconduct claim, which claim was the basis for this court's prior grant of competency phase relief. In October 2011, Stanley again requested that attorney Leavitt represent him in these federal proceedings. (ECF No. 880.)

Thereafter, petitioner Stanley recommenced submitting numerous pro se filings complaining of various things. While he frequently mentioned dismissing this proceeding, he was not single- minded in doing so. Many filings addressed other issues, such as the prison's treatment of Stanley and conflicts with his attorneys. Stanley also indicated that he ...


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