United States District Court, S.D. California
ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS;
(2) GRANTING CERTIFICATE OF APPEALABILITY [DKT. NO.
Gonzalo P. Curiel, Judge
October 6, 2016, Petitioner Dontaye Craig
(“Craig”), a state prisoner proceeding pro
se, filed a Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2254,
challenging his conviction in San Diego Superior Court
Consolidated Case No. SCD 225297. Dkt. No. 1, at
The Petition raises a single issue-whether the state trial
court violated Craig's constitutional right to Due
Process when it denied his request for access to recorded
jail telephone conversations of a key witness for the
prosecution that Craig subpoenaed. Dkt. No. 1, at 6-7. On
February 16, 2017, respondent filed a Response and supporting
Lodgments. Dkt. Nos. 11, 12. On March 20, 2017, Craig filed a
Traverse as to the matters raised in the Response,
arguing that access to the recorded jail telephone
conversations would have resulted in a different outcome at
trial because of the overall “closeness” of the
case. Dkt. No. 13.
November 22, 2017, pursuant to 28 U.S.C. § 636(b)(1) and
Local Civil Rule HC.2 of the United States District Court for
the Southern District of California, Magistrate Judge Karen
S. Crawford filed a Report and Recommendation
(“Report”) recommending that this Court deny the
Petition. Dkt. No. 14. On May 9, 2018, Craig filed objections
(“Objections”) to the Magistrate Judge's
Report. Dkt. No. 19. On August 1, 2018, this Court directed
Respondent to supplement the record regarding three sealed
documents referenced during state court trial proceedings.
Dkt. No. 20. As a result of this directive, two
packages-issued under seal-were received by this Court. One
package, from the trial judge, the Honorable Charles G.
Rogers, contained Craig's February 29, 2012 motion to
disclose subpoena duces tecum of informant, Dkt. No. 31-1, at
14, and the trial court's March 7, 2012 order denying
that motion, Dkt. No. 31-3. The other package, from the
California Court of Appeal, Fourth Appellate District,
Division One, contained a declaration of Investigator Jon
Lane, which had been filed as an exhibit to Craig's
motion for reconsideration of a motion to disclose. Dkt. No.
31-2, at 5. After receipt of the aforementioned, the Court
caused the documents to be filed under seal to the docket.
Dkt. No. 30.
thorough review of the issues, supporting documents, and
applicable law, the Court ADOPTS the
Magistrate Judge's Report, OVERRULES
Craig's objections, and DENIES the
petition for writ of habeas corpus, but will
GRANT a certificate of appealability.
evening of May 23, 2009, Craig and his friends, Marlon
Johnson, Frederick Roberson, and Rashad Scott, all active
members of the Emerald Hills street gang, went to the Gaslamp
Quarter in downtown San Diego. Lodgment 14 at 2, 4. After
Johnson, the driver, parked the car near the intersection of
E Street and Fifth Avenue, the group walked west together on
E Street. Lodgment 14 at 5. In the early morning of May 24,
2009, Craig and his friends encountered rival gang members
and a fight began on the crowded street, during which
multiple shots were fired. Lodgment 14 at 5-7. A rival gang
member, Richard Turner, was shot multiple times and seriously
injured. Lodgment 14 at 5, 7. Two bystanders were also shot,
including Lakeisha Mason, who was killed. Lodgment 14 at 7.
Craig and his friends ran back to Johnson's car and drove
away. Lodgment 14 at 7.
March 2010, Johnson was arrested, and after being in jail for
more than a year, agreed to cooperate with the investigation
and to testify against his friends and fellow gang members in
exchange for a guilty plea to voluntary manslaughter and an
admission to a gang allegation with a potential prison term
of three to eleven years. Lodgment 1-6 at 25; Lodgment 14 at
there was other evidence connecting Craig, Roberson, and
Scott to the shooting, Johnson was the prosecution's key
witness. In video and photographs taken around the time of
the shooting, Johnson identified himself, Roberson, and
Scott. He also testified that Craig was standing to his left
and slightly behind him when the photographs were taken, and
in one of the photographs, it appeared that Craig's arm
was extended. Lodgment 14 at 8. Johnson also testified that
when they were all inside of his car after the incident, he
asked who did the shooting. According to Johnson,
“Craig, who was in the front seat, was holding a gun
and admitted he was the shooter.” Lodgment 14 at 8.
was also some evidence indicating that Roberson was the
shooter. Lodgment 14 at 2. Roberson was the first member of
the group to initiate the physical fight when he “threw
off his hoodie and sucker punched a member of Turner's
group.” Lodgment 14 at 7. Craig, Roberson, and Scott
wore black hoodies. Lodgment 14 at 5. Roberson also wore a
gray baseball cap with an "SD” insignia on it.
Lodgment 14 at 5. A black hoodie, a gray baseball cap with an
"SD" insignia with Roberson's DNA, and four
.38-special-caliber bullet fragments were found at the scene.
Lodgment 14 at 7. Gunshot residue was found on the hoodie.
Lodgment 14 at 7. When Roberson was arrested in August 2010,
he had a baseball cap with an “SD” insignia that
was nearly identical to the one found at the scene. Lodgment
14 at 7.
PROCEDURAL HISTORY 
August 27, 2010, a grand jury returned an indictment against
Johnson and Roberson for the murder of Lakeisha Mason; the
attempted murder of Richard Turner; and assault with a
firearm on James Aldridge under Case No. SCD 225297. Lodgment
5-7 at 26. On June 7, 2011, Johnson signed an agreement to
testify for the prosecution against Craig, Roberson, and
Scott. Lodgment 3-1 at 74-79. On June 17, 2011, Craig and
Scott were arraigned on the same charges under Case No. SCD
234772. Lodgment 5-7 at 27. The case was later consolidated
under Case No. SCD 225297.
preliminary hearing commenced on September 29, 2011, and
Johnson, who had been placed in protective custody, testified
for the prosecution as agreed. Lodgment 3-1 at 6-7, 12-23,
80-102. His testimony at the preliminary hearing was
consistent with his later testimony at trial. Johnson
implicated Craig, Roberson, and Scott in the incident and
testified that Craig admitted he was the shooter. Lodgment
3-1 at 74 et seq.
November 14, 2011, two investigators for the prosecution went
to the jail and advised the facility commander they wanted to
search cells occupied by Roberson and Craig. They were then
given access to the cells and were able to “tag and
bag” all pieces of mail, letters, envelopes,
correspondence, writings, and legal mail belonging to Craig
and Roberson in the presence of the facility commander.
Lodgment 5-1 at 62-65, 71-72 (Exhibit A). The bag of evidence
was then turned over to the prosecution unit for processing.
Lodgment 5-1 at 72.
December 6, 2011, about three months after Johnson testified
for the prosecution at the preliminary hearing, Craig served
the San Diego County Sheriff with a Subpoena Duces
Tecum requesting production of the following documents
and information: (1) a list of Johnson's visitors; (2)
copies of Johnson's mail and e-mails; (3) a list of
Johnson's phone calls; (4) copies of Johnson's
recorded phone calls; (5) Johnson's housing records,
including names of all cell mates; and (6) all of
Johnson's movement records. Lodgment 5-1, part 1 at
30-32. The San Diego County Sheriff complied with the
subpoena by delivering the requested materials to the trial
court. Lodgment 5-1, part 1 at 24.
portion of Craig's subpoena that sought access to
Johnson's recorded jail calls was extensively litigated
in the trial court starting on January 13, 2012 with an
“informal conference to address records subpoenaed
pursuant to a subpoena duces tecum issued . . . on
behalf of [Craig].” Lodgment 1-1 at 9; Lodgment 5-6 at
62. During this initial conference, the trial court asked
whether anyone objected to the release of the subpoenaed
records to Craig's counsel. The prosecutor said, “I
don't object.” Lodgment 1-1 at 11. However, the
prosecutor and Johnson's counsel indicated it would be
necessary for the trial court to conduct an in
camera review of the records to avoid the release of any
private, sensitive, or attorney-client privileged
information. Lodgment 1-1 at 11-12. The trial court indicated
it would complete a “quick review” of the
records, remove any privileged materials, and release
“everything else” to Craig's counsel.
Lodgment 1-1 at 13. The trial court added as follows:
“My thought is that the record is clear, I don't
see what's happening here to be a fishing expedition, and
I think that, frankly, the Sixth Amendment right to have
counsel be able to function effectively and to confront and
cross-examine effectively are implicated here, and I think
that unless there is some really strong privilege that would
outweigh that, [Craig's counsel] gets them. But I think
it would be a good idea if I looked through them in
camera.” Lodgment 1-1 at 13. In addition, the
trial court stated that its “Sixth Amendment
comments” were based on the fact that Johnson testified
for the prosecution and was cooperating in the case. Lodgment
1-1 at 14.
January 26, 2012, at the next pre-trial conference, the trial
court requested briefing from the parties on the subpoena
matter and set the matter for hearing on February 15, 2012.
Lodgment 5-1, part 1 at 37. On February 7, 2012, Craig filed
a Motion for Order to Disclose. In the Motion, Craig argued
that Johnson's recorded jail telephone conversations
should be transcribed for an in camera review by the
trial court. To the extent the conversations included
impeachment or exculpatory evidence, Craig argued they should
be released to counsel, because they were important to the
defense. Craig and his co-defendants were facing life
sentences, and Johnson testified as the primary witness for
the prosecution at the preliminary hearing and was allowed to
enter a plea for approximately 11 years of incarceration.
Lodgment 5-1, part 1 at 21-29.
prosecutor filed an Opposition to the Motion to Disclose on
February 8, 2012. Lodgment 5-1, part 1 at 36. The Opposition
states that the prosecutor was “surprise[d]” that
the Sheriff's Department complied with the subpoena and
did not file a motion to quash. Lodgment 5-1, part 1 at 37.
In general, the prosecutor argued that the subpoenaed
materials should not be released to any of the defendants
without a showing of “good cause and
materiality.” Lodgment 5-1, part 1 at 37. With respect
to housing and movement records, the prosecutor did not
object to disclosure of this information to defense counsel
as long as it was not given to the defendants directly in
order to protect Johnson's safety and security. Lodgment
5-1, part 1 at 37-38. The prosecutor did oppose the release
of the names of Johnson's visitors and cell mates. In the
prosecutor's view, this request was a “fishing
expedition” so that the defendants could contact
visitors and cell mates hoping they might provide relevant
evidence. Lodgment 5-1, part 1 at 38. The prosecutor opposed
release of electronic recordings of Johnson's phone calls
absent a showing of good cause, because it would require the
trial court to conduct an extensive in camera review
to redact confidential or privileged matters. The prosecutor
estimated there was about 60 hours of recorded conversations
and transcribing them “would take at least a
month.” Lodgment 5-1, part 1 at 38-39. On the other
hand, the prosecutor conceded that the trial court should
release the records to defense counsel to the extent they
were relevant and did not contain confidential,
constitutionally protected, or privileged information.
Lodgment 5-1, part 1 at 42.
also filed an Opposition to the Motion for the Order to
Disclose. He argued that the subpoenaed materials should not
be disclosed because there was no showing of good cause and
because some of the materials might be privileged. Lodgment 7
February 15, 2012, the trial court heard oral argument on the
Motion for Order to Disclose. Lodgment 2-2 at 10 et
seq.; Lodgment 5-6 at 64. The trial court told the
parties that the Sheriff's Department complied with the
subpoena by delivering all of the materials requested to the
trial court except for e-mails. Lodgment 2-2 at 11-13. The
trial court said it had “started listening” to
some of Johnson's recorded jail telephone calls to screen
out any privileged materials but indicated they were
“not easy to hear” and included “a great
deal of . . . ethnic speech . . . that I don't . . .
fully understand.” Lodgment 2-2 at 13. Because of this
difficulty and the volume of materials that were produced,
the trial court decided to request briefing from the parties
to ensure that the defendants were not on a “fishing
expedition.” Lodgment 2-2 at 14. The trial court
explained as follows:
One can imagine, if the defense were to hit a gold mine in
this case, finding a telephone call from a cooperating
individual to the effect of, ‘you know, I'll say
anything I have to say to get out from under my beef and to
shorten my sentence, and so go find out anything you can so I
can tell the police I know this.' [¶]One can imagine
a cooperating individual making a similar statement to
anybody he's housed with or sitting on the bus next to:
‘Do you know anything about this case that I can say to
tell the cops so I can testify and throw somebody else down
and get off of this?' [¶]Maybe less dramatic might
be a situation where the witness just says something
factually, which defense counsel from their review of the
discovery might know is inconsistent with what he's told
the police or the investigators, and that might be admissible
Please let me emphasize, I have zero reason, zero cause to
believe that any of these things have happened in this case.
I [am just] imagining these kinds of scenarios as reasons why
the defense would want to get access to everybody he's
talked to and everybody he's been housed with, so that
they can go talk to them and try to find out. [¶]And, of
course, that adds another layer of complexity, because some
of those people are no less - are subject to all the
credibility concerns that the cooperating individual is. So
the bottom line is I'm asking counsel for guidance on
these points. [¶I]s there some showing of good cause
that has to be made to gain access to these materials that
were produced by the sheriff pursuant to the subpoena
* * * *
But my question is: Is there some showing of good cause
before the court is required to give access to these
materials to the defense?
* * * *
The second question: If something more is required, what is
it? Is it akin to probable cause? What kind of showing, if a
showing needs to be made, is there to - that some nugget that
the defense might use or that might lead to discoverable
evidence is likely to be in this voluminous material?
* * * *
Thirdly, . . ., if the court's already said he's got
no expectation of privacy in a jail cell, how is there an
expectation of privacy that will attach to these telephone
* * * *
I don't say this lightly. I acknowledge the concerns that
we all have, both conscientious prosecutors and conscientious
defense attorneys and courts, of the problems that are
inherent with cooperating individuals who are testifying. And
every one of us, no matter what side of the coin, has a
horror story or more than one that we can point to.
On the other hand, I mean, where do we draw the line? I mean,
if there are 200 phone numbers here, do we turn over 200
phone numbers of people that Mr. Johnson has called on the,
what, speculation, perhaps or reasonable possibility,
depending on how you frame it, that he might have said
something? Is that a fishing expedition?
Same with respect to his cellmates. Same with respect to his
phone calls. Where does the line get drawn here in terms of
just saying, ‘access to the whole world or what?'
Lodgment 2-2 at 14-18.
During oral argument, defense counsel focused on several
points. First, defense counsel argued that it was likely
Johnson's jail calls would include additional and perhaps
more relevant impeachment evidence, because Johnson initially
denied any connection to the shooting incident and told
different stories when interviewed before he implicated Craig
and agreed to testify for the prosecution. Lodgment 2-2 at
Second, defense counsel indicated there was a witness who
would say that Johnson indicated he was going to make up a
story in order to get a deal. As a result, the defense should
be permitted to discover calls Johnson made before he agreed
to testify when he was talking to friends or close associates
about his situation, particularly because this could be a
“close case” that could turn on “one phone
call by Mr. Johnson that impeaches him. . . .” Lodgment
2-2 at 26-27, 41-42.
Third, defense counsel argued that case law requiring a
showing of “good cause” or “plausible
justification” are typically based on a third
party's privacy interests, but as the trial court
previously held in connection with the cell searches, Johnson
did not have any privacy interest in his recorded jail
telephone calls. Lodgment 2-2 at 28-30.
Fourth, based on prior experiences in criminal cases, defense
counsel indicated it is fairly common for incarcerated
individuals to make admissions or confessions in recorded
jail calls. As a result, defense counsel argued that it is
certainly plausible under the circumstances that
Johnson's calls would be helpful to the defense. In
addition, it was defense counsel's understanding that the
recorded jail calls are easily accessed by the prosecution
with “no judicial oversight” and then used as
evidence as needed.
Lodgment 2-2 at 30-32.
based on the policies and procedures followed by the
Sheriff's Department at the jail, it was defense
counsel's understanding that Johnson's recorded calls
would not include privileged conversations with counsel
unless there was some problem with the system. Lodgment 2-2
at 33-34, 38-39.
close of the hearing, the trial court concluded as a matter
of law that there must be some showing of good cause and
specific facts justifying the need for the disclosure of the
subpoenaed materials, but said, “[W]hat isn't clear
is what is sufficient.” Lodgment 2-2 at 53-54. The
trial court invited defense counsel to submit under seal
“specific factual averments” believed to
establish “good cause” by February 29, 2012.
Lodgment 2-2 at 55, 58. To assist counsel, the trial court
said, “[F]or instance, if you did have the name of a
particular person that you wanted to see if there was
verification that that person had shared a cell with Mr.
Johnson, that might be a good place to include that, along
with at least a thumbnail synopsis of what that person might
say. . . .” Lodgment 2-2 at 55-56.
February 29, 2012, Craig filed a sealed motion responsive to
the trial court's solicitation for “specific
factual averments.” Dkt. No. 31-1, at 14. In that
motion, Craig argued that an analysis of the subpoenaed
materials might reveal additional statements made by Johnson
which would contradict statements previously given to law
enforcement officers, since previous interviews already
demonstrate that Johnson “has told inconsistent
stories.” Id. at 16. (“There can be no
doubt that in prior phone conversations Mr. Johnson made
statements contrary to his present version of
events.”).) Craig also asked for discovery of a phone
call believed to be made by Craig to Johnson while Johnson
was in jail; “[i]t is believed that the conversation
will show that Mr. Craig was not involved” in the
shooting. Id. at 7. Craig further stated that
“[i]t is also believed that informant had similar phone
conversations with others which may have been
March 7, 2012, the trial court issued a written Order ruling
on the request for release of the subpoenaed materials.
Lodgment 5-6 at 65-66; Lodgment 5-1, part 1 at 58-59. By this
time, co-defendants Roberson and Scott had joined in
Craig's request for the subpoenaed materials and each of
the defendants had an opportunity to submit arguments
“under seal” explaining why they believed there
was “good cause for the release of the materials to
them.” Lodgment 5-6 at 65-66. The trial court then
conducted an in camera review of some but not all of
the materials. Lodgment 5-6 at 65. Specifically, the trial
court's March 7, 2012 Order states that the following
were reviewed in camera: Johnson's visitor
lists, housing records, and list of outgoing phone numbers.
The trial court did not attempt to listen to all of the
recorded telephone calls. In this regard, the trial
court's Order states as follows: “These calls are
not transcribed, are not always easy to hear, and frequently
involve colloquial and ‘street talk' speech
patterns and words that are difficult to understand. The
court finds that there has been no showing of good cause to
conclude that any of the calls are relevant.” Lodgment
5-6 at 66.
trial court's March 7, 2012 Order rejected Craig's
argument that the subpoenaed materials-as a whole-were
discoverable pursuant to the constitutional principles set
forth by the Supreme Court in Brady v. Maryland, 373
U.S. 83 (1963). Lodgment 5-6 at 65-66. Citing People v.
Superior Court (Barrett), 80 Cal.App.4th 1305 (2000),
the trial court's view was that Brady did not
apply, because the Sheriff's Department was not part of
the prosecution team. In other words, the prosecutor did not
have possession of the subpoenaed materials. Instead, ...