United States District Court, S.D. California
ORDER GRANTING PETITIONER'S MOTION TO EXPAND THE
RECORD [DKT. NO. 29.]
GONZALO P. CURIEL United States District Judge
5, 2017, Petitioner filed a motion to expand the record
pursuant to Rule 7 of the Rules Governing Section 2254 Cases.
(Dkt. No. 29.) Respondent has not filed an opposition. Based
on the reasoning below, the Court GRANTS Petitioner's
motion to expand the record.
February 9, 2015, Petitioner Khaled Mohamed
(“Petitioner”) filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 with counsel.
(Dkt. No. 1.) In 2011, a jury convicted Mohamed of possession
of methamphetamine for sale; transportation of
methamphetamine for sale between two noncontiguous countries;
conspiracy to sell methamphetamine; conspiracy to possess
methamphetamine for sale; and conspiracy to transport
methamphetamine for sale. (Dkt. No. 12-10 at 362.) The jury
also found he used a false compartment to transport
methamphetamines and the quantity of methamphetamine exceeded
10 kilograms. (Id.) Mohamed was sentenced to 16
years in prison. (Id. at 363.)
petition alleges the following claims: (1) violation of his
Sixth Amendment right to counsel when the trial court denied
his request to discharge retained counsel prior to trial; (2)
ineffective assistance of appellate counsel and denial of due
process because the court of appeal's did not order
production of the free talk, which purportedly contained
Brady material and revealed a conflict of interest;
(3) denial of the Sixth Amendment right to counsel because
the free talk revealed that his trial counsel had a conflict
of interest; (4) Brady violation because the
prosecution withheld the free talk from the defense; and (5)
ineffective assistance of trial counsel because trial counsel
did not use the free talk or call Lisa as a witness during
trial precluding evidence that Petitioner was innocent and/or
deserved a lesser punishment. (Dkt. No. 1 at 6-13.)
to Mohamed's petition is a “free talk” that
occurred between Lisa, Mohamed's girlfriend at the time,
and the district attorney prosecuting Mohamed's case. The
prosecution successfully claimed privilege and the state
court sealed the “free talk” pursuant to
California Evidence Code section 1040.
superior court held an evidentiary hearing after the court of
appeal issued an order to show cause directing the superior
court to hold an evidentiary hearing to review the contents
of the “free talk” in order to resolve issues
raised in Petitioner's state habeas petition. After the
evidentiary hearing, the superior court denied the petition
for writ of habeas corpus and discharged the OSC. (Dkt. No.
12-10 at 361-67.) In another habeas petition where Petitioner
challenged the trial court's findings at the OSC
evidentiary hearing, the court of appeal denied his petition
without reviewing the transcript of the “free
talk” and relied on the superior court's assessment
of Lisa's comments during the “free talk.”
(Dkt. No. 12-11 at 359.)
motion, Petitioner seeks to expand the record for the Court
to review the sealed transcripts of the “free
talk” conducted by Deputy District Attorney Tag and
Lisa, and an in-camera hearing with Deputy
District Attorney Tag and state court Judge Bloom
“where questions were propounded to Tag by defense
counsel” that the court of appeal did not
review. (Dkt. No. 29 at 1.) He claims these
transcripts were never reviewed by the court of appeal and it
improperly relied on the conclusions of the superior court
judge at the order to show cause hearing. (Dkt. No. 29 at 4.)
of the Rules Governing Section 2254 Cases states that a judge
“may direct the parties to expand the record by
submitting additional materials relating to the
petition.” Such materials include, without limitation,
“letters predating the filing of the petition,
documents, exhibits, and answers under oath to written
interrogatories propounded by the judge.” Id.
“The purpose [of the rule] is to enable the judge to
dispose of some habeas petitions not dismissed on the
pleadings, without the time and expense required for an
evidentiary hearing.” Id. advisory
committee's note on 1976 adoption. In Holland,
the United States Supreme Court held that new evidence may be
considered in a federal habeas corpus proceeding only when
the failure to develop the facts in state court are not the
petitioner's fault, or when the requirements of 28 U.S.C.
§ 2254(e)(2) are satisfied. Holland v.
Jackson, 542 U.S. 649, 652-53 (2004).
Petitioner has unsuccessfully sought the production of the
sealed “free talk” transcript and has
consistently argued in his state habeas petitions that the
court of appeal erred by not reviewing the sealed transcript
of the “free talk.” Therefore, the failure to
develop the record was not Petitioner's fault.
motion, Petitioner cites to the recent Ninth Circuit case of
Nasby v. McDaniel, 853 F.3d 1049 (9th Cir. 2017),
where the Ninth Circuit vacated the district court's
dismissal of the petition and remanded the case to consider
the petition after obtaining and reviewing all relevant
portions of the state court record. Id. at 1055. In
Nasby, the district court did not consider any of
the state court records including the trial transcript and
the transcript of the evidentiary hearing held by the state
court which were relevant to deciding Petitioner's claim.
Id. at 1053. Instead, the district court relied on
the facts as described in the Supreme Court's opinion
denying relief. Id. at 1052. In remanding the case
back to the district court, the court explained that in order
for there to be meaningful collateral review, the district
court must independently review the basis for the state
court's decision. Id. at 1052-53 (citing
Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997)).
The court explained that federal habeas courts must
“examine independently the basis for the state
court's decision, rather than to accept the state
court's determination of the facts on faith.”
Id. at 1053.
in one of his claims, Petitioner argues that the state
appellate court erred by failing to review the transcript of
the “free talk” and relied solely on the trial
court's review of the contents of the “free
talk.” Moreover, all the claims in the Petition
originate from the contents of the “free talk.”
Therefore, if Petitioner's allegations are true, he may
be entitled to habeas relief. In order to conduct a
meaningful collateral review, the Court must independently
consider all relevant state court records, including the
transcripts of the “free talk” and
in-camera hearing concerning the privilege issue
that relate to certain claims in his petition.
the Court GRANTS Petitioner's motion to expand the record
pursuant to Rule 7 of the Rules Governing Section 2254 Cases.
Respondent is directed to submit a lodged copy of the sealed
“free talk” transcript and/or audio recording,
and the sealed in-camera hearing transcript to the ...