Frye v. Warden

          DEATH PENALTY CASE ORDER.

         Petitioner Jerry Grant Frye, a state prisoner under sentence of death, seeks habeas corpus relief under 28 U.S.C. § 2254. He challenges the assigned magistrate judge’s authority to sua sponte issue amended findings and recommendations (F&Rs). In a previous order, the court found the magistrate judge has that authority. Petitioner now seeks reconsideration of that order.

         I. BACKGROUND

         As summarized in this court’s previous order, in 1988, a jury found petitioner guilty of two counts of first degree murder, among other charges. Order Dec. 1, 2006, at 2-9, ECF No. 214, recons. denied, ECF No. 227. He was sentenced to death. Id. at 10. The California Supreme Court affirmed his conviction in 1998, People v. Frye, 18 Cal.4th 894 (1998), the U.S. Supreme Court denied his petition for a writ of certiorari, 526 U.S. 1023 (1999), and his two state habeas petitions were denied in 1998 and 2001, Order Dec. 1, 2006, at 10. This action began in 1999.

         The court granted petitioner’s motion for an evidentiary hearing in 2004. ECF Nos. 214, 227.^[1] For about seven years the parties conducted discovery and the court held evidentiary hearings and received briefing. On April 4, 2011, the United States Supreme Court issued its decision in Cullen v. Pinholster, 563 U.S. 170 (2011), holding 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 that state court.” Id. at 185. In light of this holding, the court vacated evidentiary hearings previously set to begin in May of 2011 and ordered the parties to submit briefs on the impact of Pinholster on this case. ECF Nos. 579, 584. In 2011 and early 2012, the court received the parties’ briefs. ECF Nos. 580, 581, 612, 616, 629.

         The assigned magistrate judge issued F&Rs in December 2013, recommending dismissal of some claims on the state-court record, dismissal of other claims on the federal-court record, and continued development of other claims in federal court. ECF No. 632. In 2014, petitioner and respondent each filed objections and responses, ECF Nos. 640, 649, 652, 657, and on January 22, 2015, following a practice not without precedent in this district, the magistrate judge filed amended F&Rs, ECF No. 658. In issuing the amendment, the magistrate judge took “careful consideration of the parties’ briefs, the state court record, both parties’ objections to the [original, unamended F&Rs], and the parties’ responses to the objections, ” but reached the same conclusion on each of the petitioner’s claims. See Id. at 2. The amended F&Rs specified that the parties’ objections to the original, unamended F&Rs would remain in force and would be considered objections to the amended F&Rs. The magistrate judge also allowed “supplemental objections to the portions of these amended findings and recommendations that differ from the [original, unamended F&Rs], ” without specifying all of the differences between the two sets of F&Rs. Id. at 122. Otherwise no objections were permitted. Id.

         Petitioner moved for reconsideration of the amended F&Rs, requesting the magistrate judge withdraw them or, alternatively, clarify the amendments and allow him an additional thirty days to file objections. ECF No. 661. The magistrate judge denied the motion except to allow a thirty-day extension of time for objections. ECF No. 662. Petitioner then requested reconsideration from this court. ECF No. 663. Respondent opposed neither motion and filed a response to the amended F&Rs, clarifying that it relies on its previously submitted objections. ECF No. 664.

         This court denied the motion to reconsider the magistrate judge’s decision not to withdraw the amended F&Rs. ECF No. 669. The court relied on the Supreme Court’s decision in United States v. Raddatz, 447 U.S. 667 (1980), as a “guidepost for the interpretation of F&Rs.” Id. at 6-7. In Raddatz, the Supreme Court found that Congress had not unconstitutionally allocated authority to magistrate judges under 28 U.S.C. § 636(b)(1)(B) because “Congress made clear . . . that the magistrate [judge] acts subsidiary to and only in aid of the district court.” 447 U.S. at 681. Drawing on this reasoning, this court concluded that “[t]he magistrate judge’s withdrawal of or, as here, amendment to previously issued F&Rs neither diminishes the district judge’s ‘total control and jurisdiction’ nor robs the district judge of authority ‘to make an informed, final determination.’” Id. at 7 (quoting Raddatz, 447 U.S. at 681). The court also noted that amendments to F&Rs can avoid confusion and delay. Id. The court found, however, that the magistrate judge could not restrict the parties’ objections. Id. at 7-8. The motion thus was granted in part and denied in part to that extent.

         Petitioner then asked this court to reconsider. ECF No. 673. He argued that this court’s interpretation of Raddatz conflicts with the Ninth Circuit’s decision in NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994). The court directed respondent to provide a statement of its position, if any it had, on this point. ECF No. 674. Respondent disagreed with petitioner’s reading of Raddatz and A-Plus Roofing and emphasized that “it is not uncommon for magistrate judges in this district and elsewhere to issue amended F&Rs.”^[2] Resp. at 4, ECF No. 676.

         Petitioner replied, reiterated his reliance on A-Plus Roofing, and distinguished this case from the examples of amended F&Rs respondent cited. ECF No. 677.

         II. LEGAL STANDARD

         A district court has inherent authority to reconsider its own non-final orders. See, e.g., United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000). In addition, Federal Rule of Civil Procedure 54(b)^[3] authorizes this court to revise “any order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” “A district court may reconsider and reverse a previous interlocutory decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of controlling law.” Abada v. Charles Schwab & Co., 127 F.Supp.2d 1101, 1102 (S.D. Cal. 2000). But as a general rule, previous orders should stand in the absence of “extraordinary circumstances[, ] such as where the initial decision was clearly erroneous and would work a manifest injustice.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (citation and quotation marks omitted).

         III. DISCUSSION

         A. Applicability of United States v. Raddatz

         Upon reconsideration, the court concludes its previous application of United States v. Raddatz was incorrect. In Raddatz, the Supreme Court considered whether 28 U.S.C. § 636(b)(1)(B) was constitutional. 447 U.S. at 669. That is, the Court considered whether Congress had unconstitutionally delegated authority to a judge who was not appointed under Article III. See Id. at 681. The Supreme Court concluded Congress had not made an unconstitutional delegation of final authority at all. See Id. The Raddatz Court’s decision was straightforward ...