United States District Court, E.D. California
SEAN A. O’BRIEN, Petitioner,
LELAND McEWEN, Respondent.
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
a status conference on March 30, 2016, the parties were
ordered to file a Joint Status Report on the evidence to be
presented at the evidentiary hearing and any related matters.
(ECF Nos. 55 & 56.) The parties have now filed their
Joint Status Report. (ECF No. 57.)
parties agree that no further discovery is required.
Petitioner states that he intends to prove 54 factual
allegations set forth in his November 25, 2015 memorandum,
some of which are undisputed as a matter of state court
record. (See ECF No. 44.) Petitioner states that he
expects to call up to a dozen witnesses, but cannot identify
“exactly which witnesses will be called and in what
order.” Petitioner has provided respondent with a list
of seventeen potential witnesses; however, he does not make a
proffer of any witness’s expected testimony.
will stipulate to the authenticity of certain phone records
and a police report. Respondent objects to all of
petitioner’s witnesses on relevance grounds, with the
exception of petitioner’s trial attorney, Clark; and an
employee at petitioner’s mother’s automotive
shop, Winslow, who at one point stated that petitioner
telephoned the shop on the morning of the crime. Respondent
asserts that, if petitioner were allowed to call witnesses
without a proffer in a “prolonged fishing expedition,
” respondent would have no way to prepare for the
hearing. Respondent requests that petitioner be ordered to
proffer testimony for each proposed witness and show how such
evidence entitles him to relief on his ineffective assistance
claims. If petitioner cannot do so, respondent requests that
the hearing be limited to witnesses Clark and Winslow.
scope of an evidentiary hearing on a motion under 28 U.S.C.
§ 2254 is committed to the discretion of the district
court. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th
Cir. 1998), citing United States v. Layton, 855 F.2d
1388, 1421 (9th Cir. 1988). In an evidentiary hearing on an
ineffective assistance claim, the district court may impose
limitations that are “reasonably designed to restrict
the issue to competence of counsel, on the basis of what was
reasonably known by counsel at the time of trial.”
Wade v. Calderon, 29 F.3d 1312, 1327 (9th Cir.
1994), overruled on other grounds by Rohan ex rel. Gates
v. Woodford, 334 F.3d 803, 815 (9th Cir. 2003); see
also LaGrand, 133 F.3d at 1270-71 (district court
permissibly limited scope of hearing to evidence of
counsel’s deficiency under Strickland
“before the court would entertain evidence regarding
order remanding this action for an evidentiary hearing, the
Ninth Circuit stated:
The state court rejected O’Brien’s ineffective
assistance claim on the ground that, even if counsel’s
performance in presenting O’Brien’s defense was
deficient, O’Brien failed to establish prejudice under
Strickland. To establish prejudice, . . .
O’Brien needed to show that, but for counsel’s
allegedly deficient performance, there is a reasonable
probability that at least one juror would have credited the
additional evidence and harbored a reasonable doubt about his
guilt. See Cannedy, 706 F.3d at 1166. To make that
determination, the court had to ‘compare the evidence
that actually was presented to the jury with that which could
have been presented had counsel acted appropriately.”
Id. at 1163.
(ECF No. 43 at 6.)
Cannedy, the Ninth Circuit explained:
To determine whether counsel’s errors prejudiced the
outcome of the trial, we must compare the evidence that
actually was presented to the jury with that which could have
been presented had counsel acted appropriately. . . . Thus,
we must first consider whether [the evidence] could have been
admitted at trial. If the evidence could have been admitted,
we must then ask whether there was a reasonable probability
that it would have affected the outcome of the proceeding.
706 F.3d at 1163 (citations omitted). Thus, the evidentiary
hearing in this matter is concerned with attorney deficiency
and prejudice issues that cannot be resolved by reference to
the state court record. Its scope includes state-admissible
evidence “which could have been presented had counsel
acted appropriately, ” as well as any evidence of
prejudice under Strickland.
IT IS HEREBY ORDERED THAT:
later than forty-five (45) days from the date of this order,
petitioner shall file a list of witnesses he intends to call
at the evidentiary hearing, excluding Clark and Winslow.
to each intended witness, petitioner shall make a proffer of