United States District Court, N.D. California
ORDER GRANTING IN PART DISCOVERY MOTIONS RE: DKT.
NOS. 399, 400, 401
ILLSTON United States District Judge.
1, 2017, the Court scheduled an evidentiary hearing on Claim
I to begin on January 8, 2018. (Dkt. 396.) Respondent filed
two discovery motions: a motion for leave to conduct
discovery, and a motion “clarifying that petitioner may
not assert Fifth Amendment privilege concerning events
underlying prior conviction.” (Dkt. 400, 401.)
Petitioner opposed both motions (Dkt. 402, 404), and
Respondent replied (Dkt. 403, 405). For the reasons stated
herein, those motions are GRANTED IN PART.
was convicted of murder (Cal. Penal Code § 187);
attempted murder (id. § 664); robbery in an inhabited
dwelling (id. § 213.5); and first-degree burglary (id.
§§ 459-60). The jury found “special
circumstances” of robbery and burglary felony-murder
(id. § 190.2). The jury also found that Petitioner used
a firearm in the commission of these offenses (id. §
12022.5), and inflicted great bodily injury in the commission
of the attempted murder, the robbery, and the burglary (id.
§ 12022.7). Following the penalty phase of his trial,
the jury sentenced Petitioner to death.
20, 1992, Petitioner filed a petition for writ of habeas
corpus in the California Supreme Court. Answer Ex. 92. The
California Supreme Court ordered an evidentiary hearing on
the specific question of whether Petitioner “is
factually innocent of the murder of Willie Womble, in that
his deceased brother, Timothy Johnson, committed the
crime.” In re Johnson, 18 Cal.4th 447, 451
(1998). The court appointed a referee, who made factual
findings and credibility determinations following the
hearing. Id. at 456-57. Ultimately, the referee held
that Petitioner, not his brother, was present at the robbery
and responsible for Willie Womble's death. Id.
at 456. The entirety of Petitioner's state habeas
petition was denied on the merits.
filed his petition for writ of habeas corpus in this Court in
1998. On March 10, 2004, this Court granted Petitioner an
evidentiary hearing on Claims A, H, I, P, and part of Claim
Q. (Dkt. 119.) Respondent filed a motion to reconsider the
grant of the evidentiary hearing as to Claim I, arguing under
Civ. L.R. 7-9(b)(3) that the Court manifestly failed
“to consider material facts or dispositive legal
arguments which were presented” to it. (Dkt. 129.) The
Court denied that motion. (Dkt. 131.)
the issuance of Cullen v. Pinholster, 563 U.S. 170
(2011), Respondent filed a second motion to reconsider the
grant of an evidentiary hearing. (Dkt. 277.) The Court
granted that motion and asked the parties to brief
Petitioner's entitlement to relief under 28 U.S.C.
2254(d)(1) for Claims A, H, I, P, and the
consideration-of-extrinsic-evidence subclaim of Claim Q.
(Dkt. 287.) The Court ultimately found that Petitioner had
not shown that he was entitled to relief for these claims
under § 2254(d)(1). (Order Regarding § 2254(d)(1),
Dkt. 317.) The Order, however, noted that the California
Supreme Court's decision denying Claim I may have been an
unreasonable interpretation of the facts under 28 U.S.C.
§ 2254(d)(2) in light of that court's narrow framing
of the claim and its refusal to allow Petitioner to submit
alibi evidence to prove his innocence. (Order Regarding
§ 2254(d)(1) at 18, n. 7.) The Court asked the parties
to brief what issues remained to be resolved and specifically
requested the parties to address how much further factual
development of the evidentiary claims was appropriate or
necessary. (Order Regarding § 2254(d)(1) at 24-25.)
Ultimately, the Court granted an evidentiary hearing on Claim
I and denied claims A, H, except as to the investigation of
actual innocence subclaim, P, and the
consideration-of-extrinsic-evidence subclaim of Claim Q.
anticipation of the upcoming evidentiary hearing, Respondent
filed two discovery motions. (Dkt. 400, 401.) The first
motion is a motion for leave to conduct discovery, wherein
Respondent requests depositions of Petitioner's trial
counsel and depositions of all lay and expert witnesses
Petitioner intends to call at the January 8 evidentiary
hearing. Respondent also seeks documents possessed by any
witnesses to be called at the evidentiary hearing that would
support Petitioner's innocence claim and reports
satisfying Fed.R.Civ.P. 26(a)(2) by any individuals
identified as experts. The second motion seeks an Order
declaring either: (1) that Petitioner has waived his Fifth
Amendment rights against self-incrimination as they pertain
to his actual innocence claim for purposes of his deposition
and the hearing, or (2) that should Petitioner invoke such
Fifth Amendment rights, the Court would draw a negative
inference from such invocation and would not allow Petitioner
to testify to such matters at the evidentiary hearing.
Finally, Respondent also filed a notice that he intends to
rely on this Court's February 1, 2011 Order holding that
Petitioner has waived his attorney-client privilege as it
pertains to his ineffective assistance of counsel claims.
(Dkt. 399.) Petitioner filed oppositions to the formal
motions, but did not file a response Respondent's notice
of intent to rely on the February 11, 2011 Order. Respondent
replied to the oppositions. These matters are now ripe for
judge, may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Civil Procedure and may
limit the extent of discovery.” Rule 6(b) of the Rules
Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.
Good cause for discovery under Rule 6(a) is shown
“‘where specific allegations before the court
show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is . . .
entitled to relief . . . .'” Bracy v.
Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris
v. Nelson, 394 U.S. 286, 299 (1969)); Pham v.
Terhune, 400 F.3d 740, 743 (9th Cir. 2005).
Waiver of Attorney-Client Privilege
filed notice of his intent to rely on this Court's
statement in its February 1, 2011 Order that, “[a]s
Petitioner contends he was deprived of the effective
assistance of trial counsel, he has waived, for the purpose
of this federal habeas corpus proceeding, his attorney-client