(HC) Vargas v. Pliler, No. 1:2003cv06622 - Document 81 (E.D. Cal. 2010)
Court Description: ORDER DENYING 77 Motion in Limine; ORDER DENYING AS MOOT 78 Petitioner's Application for Writ of Habeas Corpus Ad Testificandum; ORDER SETTING DEADLINE of August 20, 2010, for Filing of Application for Writ of Habeas Corpus Ad Testificandum; ORDER SETTING Telephonic Status Conference re Stipulation for 8/25/2010 at 10:00 AM; ORDER SETTING Due Date for Filing of Joint Statement for 10/1/2010; ORDER SETTING Telephonic Status Conference for 10/5/2010 at 10:00 AM; and ORDER SETTING Evidentiary Hearing for 10/14/2010at 1:00 PM in Courtroom 7, signed by Magistrate Judge Sandra M. Snyder on 8/10/2010. (Jessen, A)
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(HC) Vargas v. Pliler Doc. 81 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JASON MARTINEZ VARGAS, 11 Petitioner, 12 v. 13 CHERYL PLILER, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:03-cv—6622-OWW-SMS-HC ORDER DENYING MOTION IN LIMINE (DOC. 77) ORDER DENYING AS MOOT PETITIONER’S APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM (DOC. 78) ORDER SETTING DEADLINE OF AUGUST 20, 2010, FOR FILING OF APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM 17 18 19 20 21 22 23 ORDER SETTING TELEPHONIC STATUS CONFERENCE Date: August 25, 2010 Time: 10:00 a.m. ORDER SETTING DUE DATE FOR FILING JOINT STATEMENT Date: October 1, 2010 ORDER SETTING TELEPHONIC STATUS CONFERENCE Date: October 5, 2010 Time: 10:00 a.m. 24 25 26 ORDER SETTING EVIDENTIARY HEARING Date: October 14, 2010 Time: 1:00 p.m. Place: Courtroom 7 27 28 1 Dockets.Justia.com 1 Petitioner is a state prisoner proceeding with a petition 2 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 3 matter has been referred to the Magistrate Judge pursuant to 28 4 U.S.C.§ 636(b)(1) and Local Rules 72-302 and 72-303. 5 before the Court is Respondent’s motion in limine, filed on July 6 7, 2010, to limit the evidentiary hearing to the following 7 specific issue: whether trial defense counsel was asleep during 8 any portion of the testimony of gang expert Frank Gonzales. 9 Petitioner filed opposition on July 23, 2010; no reply was filed. The Pending 10 I. 11 The in limine motion of Respondent came on regularly for 12 hearing on August 6, 2010, at 9:30 a.m. in Courtroom 7 before the 13 Honorable Sandra M. Snyder, United States Magistrate Judge. 14 Carolyn Phillips appeared telephonically on behalf of Petitioner, 15 and Paul E. O’Connor appeared telephonically on behalf of 16 Respondent. 17 the parties. 18 Court. 19 Motion in Limine A. The Court had reviewed all the papers submitted by 20 After argument, the matter was submitted to the Background Respondent argues that the issue of whether defense counsel 21 was asleep during any portion of the testimony of gang expert 22 Frank Gonzales is the only issue which has been exhausted in the 23 state courts. 24 presented pursuant to 28 U.S.C. § 2244(d)(1). 25 amended habeas petition was timely filed in this Court on 26 November 22, 2004, and raised this issue. 27 6c.) 28 Further, it is the only issue that has been timely Petitioner’s first (Pet., ground 8, p. Petitioner declared in his verified amended petition that 2 1 his trial counsel, George Quick, had fallen asleep during the 2 direct examination of the gang expert Mr. Gonzales, and that Mr. 3 Vargas had to jar Mr. Quick awake. 4 confirms these allegations. 5 January 19, 2001, after both the defense and prosecution 6 had rested, Mr. Quick advised the court that he was very fatigued 7 and not prepared to begin his closing argument. 8 his request to put over closing until Monday, June 22, 2001. 9 (Mot., Ex. 2, R.T. January 19, 2001, pp. 448, 478.) The transcript of the trial On the next day of trial, Friday, The court denied Petitioner 10 contends that Mr. Quick’s admitted fatigue the day after he said 11 he had been sleeping corroborates Petitioner’s claim that Mr. 12 Quick slept during the gang expert’s testimony, and that such 13 evidence should not be excluded because it goes directly to the 14 issue of whether Mr. Quick was tired, and in fact was so tired 15 that he slept during the trial. 16 17 18 19 20 21 22 23 24 25 26 The operative allegations in the first amended petition are as follows: During the course of the trial counsel slept through portions of the prosecutors examination of adverse witness Frank Gonzales’ testimony. Counsel during one stage of the testimony had to be jarred awake by the petitioner to get counsel to object to the prosecutions solicitation of testimony petitioner considered irrelevant, counsel in coming awake objected and acknowledged that he had been asleep and had missed the question and answer posed by the prosecutor. As a result of counsel’s having slept through a substantial and significant portion of the trial proceedings, petitioner was denied the right to representation by counsel during every critical stage of the proceedings. (Pet. 6c: 7-17.) With respect to the directions from the appellate court, in 27 a memorandum of decision filed June 26, 2009, the United States 28 Court of Appeals for the Ninth Circuit wrote the following: 3 1 2 3 4 5 6 7 8 9 10 11 12 Vargas argues that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, as a result of his trial counsel’s sleeping during a substantial portion of the trial. Vargas alleges facts that, if true, may amount to a violation of his right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 680-96 (1984); United State v. Cronic, 466 U.S. 648, 659-60 (1984). Respondent Pliler asks us to assume that counsel was asleep--for how long or through what portion of the trial we do not know-but to conclude nevertheless that Vargas suffered no prejudice. Such a assumption would force us to engage in a series of speculations to answer a serious question about an important constitutional right. We conclude that Vargas’s claim cannot be resolved by reference to the state court record in this case. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Nor should it be resolved in the manner the state proposes. We, therefore, remand to the district court to conduct an evidentiary hearing. (Vargas v. Pliler, no. 1:03-cv-06622 OWW SMS HC, doc. 69, 2.) 13 B. Analysis 14 The memorandum from the appellate court clearly refers to 15 sleeping during substantial portions of the trial; it does not 16 segregate particularized portions of the trial proceedings. 17 Further, the appellate court clearly intends this Court to take 18 evidence to determine during what portions of the trial, if any, 19 defense counsel slept, including how long he slept, how often he 20 slept, and what trial proceedings were going on at the time he 21 slept. 22 warranted by the broad language used in the order of remand. The limitation sought by Respondent does not appear to be 23 Insofar as Respondent contends that consideration of 24 counsel’s sleeping during other trial proceedings would not be 25 exhausted or timely, Respondent relies on Petitioner’s single 26 specification in the amended petition of the facts appearing in 27 the appellate record that affirmatively reflect what could be 28 considered an admission by counsel that during the presentation 4 1 of evidence and examination of witnesses, he had been sleeping 2 and/or was not even sure when he was asleep and when he was 3 awake. 4 A habeas petition “may be amended... as provided in the 5 rules of procedure applicable to civil actions.” 6 2242. 7 original pleading when 1) the law that provides the applicable 8 statute of limitations allows relation back, 2) the amendment 9 asserts a claim or defense that arose out of the conduct, 28 U.S.C. § An amendment to a pleading relates back to the date of the 10 transaction, or occurrence set out, or attempted to be set out, 11 in the original pleading, or 3) the amendment changes the party 12 or naming of a party under specified circumstances. 13 P. 15(c)(1). 14 in the United States District Courts (Habeas Rules) requires that 15 a habeas petition not simply meet the general standard of notice 16 pleading, but rather specify all the grounds for relief available 17 to the petitioner and state the facts supporting each ground. 18 An amended habeas petition that concerns the same trial, Fed. R. Civ. Rule 2(c) of the Rules Governing Section 2254 Cases 19 conviction, or sentence as a previously filed petition does not 20 relate back (and thereby avoid AEDPA’s one-year time limit) when 21 it asserts a new ground for relief supported by facts that differ 22 in both time and type from those set forth in the original 23 pleading. 24 admission of a defendant’s statement in violation of the Fifth 25 Amendment were different from facts supporting a claim of a Sixth 26 Amendment violation premised on admission of a videotape of a 27 third party’s statement made at a different time and place). 28 Mayle v. Felix, 545 U.S. 644, (2005) (facts concerning The Court must determine the appropriate level of generality 5 1 or specificity with which to identify the common core of 2 operative facts of Petitioner’s claim concerning denial of his 3 right to the effective assistance of counsel. 4 an allegedly erroneous jury instruction does not relate back to a 5 claim of erroneous admission of evidence. 6 F.3d 1133, 1138-39 (9th Cir. 2008). 7 is not appropriate where a petitioner alleges one type of 8 ineffective assistance in the original petition, and then amends 9 the petition to assert another ineffective assistance claim based A claim concerning Hebner v. McGrath, 543 Analogously, relation back 10 upon an entirely distinct type of attorney misfeasance. 11 United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005), cert. 12 denied, 547 U.S. 1217 (2006). 13 See, In the amended petition, Petitioner alleged that counsel 14 slept during substantial portions of the trial, including during 15 the portion of the trial involving the examination of witnesses. 16 Examining the entire trial proceedings before the jury for 17 indicia of counsel’s having slept would involve a single type of 18 attorney misfeasance. 19 include a substantial portion of the critical stages of the trial 20 referred to by Petitioner. 21 before the jury occurred in a continuous proceeding that may be 22 characterized as an occurrence. 23 presentation of, and argument concerning, the evidence would 24 occur within a common nucleus of facts involving counsel’s 25 conduct in relation to the witnesses, the Court, the jury, and 26 Petitioner. 27 closing argument is related to and arose out of the conduct, 28 transaction, or occurrence set out, or attempted to be set out, The trial proceedings before the jury The examination of the witnesses Sleeping of counsel during the The Court concludes that counsel’s sleepiness during 6 1 in the timely pleading. 2 Further, the Court is mindful that it can be difficult to 3 determine by objective observation alone a person’s state of 4 consciousness. 5 as a unit is a logical choice of context because the Court will 6 have the ability to evaluate the effect of any substandard 7 conduct of counsel on Petitioner’s defense in light of all the 8 evidence. 9 claim, governing law will require the Court to determine whether Therefore, consideration of the trial proceedings Assuming the Court reaches the merits of Petitioner’s 10 1) counsel’s representation fell below an objective standard of 11 reasonableness under prevailing professional norms in light of 12 all the circumstances of the particular case; and 2) unless 13 prejudice is presumed, it is reasonably probable that, but for 14 counsel’s errors, the result of the proceeding would have been 15 different. 16 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). 17 determining prejudice, a reasonable probability is a probability 18 sufficient to undermine confidence in the outcome of the 19 proceeding. 20 trial, the question is thus whether there is a reasonable 21 probability that, absent the errors, the fact finder would have 22 had a reasonable doubt respecting guilt. 23 695. 24 before the fact finder and determine whether the substandard 25 representation rendered the proceeding fundamentally unfair or 26 the results thereof unreliable. 27 696. 28 Strickland v. Washington, 466 U.S. 668, 687-94 Strickland, 466 U.S. at 694. In In the context of a Strickland, 466 U.S. at This Court must consider the totality of the evidence Strickland, 466 U.S. at 687, Respondent asserts that fatigue during oral argument is 7 1 beyond the scope of the directions for remand given by the Court 2 of Appeal. 3 Strictly speaking, fatigue alone, unaccompanied by sleeping, 4 and otherwise separated from the context of the trial 5 proceedings, would appear to be outside the scope of the remand 6 directed by the appellate court. 7 its task upon remand to be to explore the entirety of the trial 8 proceedings; to take evidence in order to determine during what 9 portions of the trial, if any, Petitioner’s trial counsel was However, the Court understands 10 asleep; and to apply the appropriate standard of review and make 11 findings and recommendations to the District Judge concerning the 12 extent of counsel’s sleeping and the extent of any prejudicial 13 effect therefrom upon Petitioner’s rights to the effective 14 assistance of counsel and to a defense. 15 At this point the nature and extent of any evidence to be 16 presented to the Court is unclear, and the Court cannot foresee 17 how, if at all, any fatigue of counsel was related to sleeping 18 during the proceedings. 19 be decided, the Court recognizes the primacy of trial counsel’s 20 sleeping and its effect on Petitioner’s right to counsel; any 21 wholesale exploration of counsel’s fatigue, unrelated to sleeping 22 or the effect of sleeping on Petitioner’s right to the effective 23 assistance of counsel, is foreclosed. 24 With respect to the issues ultimately to However, in order to be able to make informed findings and 25 recommendations on the main issues to be decided, the Court 26 retains its discretion to explore the relevant behavior 27 concerning, and effects of, any sleeping, such as indicia of 28 fatigue or confusion, or other phenomena such as questionable 8 1 conduct or inaction, that are related to episodes of counsel’s 2 sleeping during the trial and are relevant to an assessment of 3 any prejudice to Petitioner’s right to the effective assistance 4 of counsel in his defense. 5 Accordingly, Respondent’s motion to limit the evidentiary 6 hearing to the sole issue of counsel’s sleeping while examining 7 witness Frank Gonzales is DENIED. 8 II. Denial of Motion for Writ of Habeas Corpus ad Testificandum 9 As the Court stated at the hearing, Petitioner’s motion for 10 issuance of a writ of habeas corpus ad testificandum (Doc. 78) is 11 DENIED as moot without prejudice to Petitioner’s filing a renewed 12 application on or before August 20, 2010. 13 III. 14 15 Telephonic Conference concerning Stipulation regarding the Prosecutor’s Testimony In view of a dispute concerning the need to redact, and the 16 admissibility of, a stipulation concerning the testimony of 17 prosecutor Jared Hamilton, counsel shall MEET AND CONFER 18 regarding the dispute; SUBMIT a paper copy of the relevant 19 stipulation and/or declarations DIRECTLY to the chambers of the 20 Honorable Sandra M. Snyder, Chief Magistrate Judge, at least 21 three days in advance of the telephonic conference; and 22 PARTICIPATE in a telephonic conference on August 25, 2010, at 23 10:00 a.m. 24 other parties and direct it to Frances Robles at (559) 499-5690 25 at the appointed time. Respondent shall ARRANGE the conference call with the 26 The parties are CAUTIONED not to file the documents or to 27 send them to the office of the Clerk of the Court; rather, the 28 documents must be submitted DIRECTLY to the chambers of the 9 1 undersigned Magistrate Judge. 2 IV. 3 Counsel agreed that one-half day was sufficient for the 4 hearing, at which counsel anticipated examining no more than 5 several witnesses, including Petitioner, who is housed at 6 Corcoran; the defense attorney, George Wright Quick; the trial 7 judge, the Honorable Clarence Westra; and Jared Hamilton, the 8 prosecutor, whose testimony might become the subject of a 9 stipulation or declaration. Joint Statement and Telephonic Status Conference 10 Counsel agreed that argument and briefing should occur after 11 the hearing, at which time a schedule shall be set for receipt of 12 the transcript and the filing of briefing. 13 14 15 Counsel shall continue to meet and confer concerning all matters pertinent to the upcoming evidentiary hearing. Counsel shall FILE no later than October 1, 2010, a joint 16 statement concerning the scope of the hearing and the witnesses 17 and evidence. 18 Further, counsel shall PARTICIPATE in a telephonic status 19 conference concerning the hearing set for October 5, 2010, at 20 10:00 a.m. 21 other parties and direct it to Frances Robles at (559) 499-5690 22 at the appointed time. Respondent shall ARRANGE the conference call with the 23 Accordingly, it IS ORDERED that 24 1) Respondent’s in limine motion is DENIED; and 25 2) The evidentiary hearing in this matter is SET for October 26 14, 2010, at l:00 p.m., before the undersigned Magistrate Judge 27 in Courtroom 7; and 28 3) The motion of Petitioner for writ of habeas corpus ad 10 1 testificandum is DENIED as moot without prejudice to filing an 2 application for such a writ, complete with a proposed order, on 3 or before August 20, 2010; and 4 4) Counsel shall MEET AND CONFER regarding the dispute 5 concerning a stipulation; SUBMIT a paper copy of the relevant 6 stipulation and/or declarations DIRECTLY to the chambers of the 7 Honorable Sandra M. Snyder, Chief Magistrate Judge, at least 8 three days in advance of the telephonic conference; and 9 PARTICIPATE in a telephonic conference on August 25, 2010, at 10 10:00 a.m.; Respondent shall ARRANGE the conference call with the 11 other parties and direct it to Frances Robles at (559) 499-5690 12 at the appointed time; and 13 14 5) The parties shall FILE no later than October 1, 2010, a joint statement concerning the evidentiary hearing; and 15 6) Counsel shall PARTICIPATE in a telephonic status 16 conference on October 5, 2010, at 10:00 a.m.; Respondent shall 17 ARRANGE the conference call with the other parties and direct it 18 to Frances Robles at (559) 499-5690 at the appointed time. 19 20 IT IS SO ORDERED. 21 Dated: icido3 August 10, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11
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