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Johnson v. Davis

United States District Court, N.D. California

June 16, 2017

WILLIE DARNELL JOHNSON, Petitioner,
v.
RON DAVIS[1], Warden, San Quentin State Prison Respondent.

         DEATH PENALTY CASE

          ORDER GRANTING IN PART DISCOVERY MOTIONS RE: DKT. NOS. 399, 400, 401

          SUSAN ILLSTON United States District Judge.

         On May 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.

         BACKGROUND

         Petitioner 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.

         On July 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.

         Petitioner 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.)

         Following 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. (Dkt. 379.)

         In 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 disposition.

         LEGAL STANDARD

         “A 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).

         DISCUSSION

         I. Waiver of Attorney-Client Privilege

         Respondent 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 ...


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