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Craig v. Ducart

United States District Court, S.D. California

July 3, 2019

DONTAYE CRAIG, Petitioner,
v.
C.E. DUCART, Warden, Respondent.

          ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) GRANTING CERTIFICATE OF APPEALABILITY [DKT. NO. 14.]

          Gonzalo P. Curiel, Judge

         I. INTRODUCTION

         On 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.[1] Dkt. No. 1, at 1.[2] 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[3] 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.

         On 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.[4] 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.

         After a 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.

         II. FACTUAL BACKGROUND[5]

         On the 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.

         In 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 7-8 n.4.

         Although 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.

         There 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.

         III. PROCEDURAL HISTORY [6]

         A. Pre-Trial Proceedings

         On 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.[7]

         A 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.

         On 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.

         On 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.

         The 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.

         On 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.

         The 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.

         Johnson 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 at 15-18.

         On 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 evidence.
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 duces tecum?
* * * *
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 records?
* * * *
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 19-20.
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.

         Fifth, 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.

         At the 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.

         On 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.[8] (“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 recorded.” Id.

         On 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.

         The 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, ...


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