(DP) Bolin v. Warden of San Quentin State Prison, No. 1:1999cv05279 - Document 291 (E.D. Cal. 2012)
Court Description: ORDER DENYING Respondent's Motion to Preclude Testimony of Petitioner's Strickland Expert 290 , signed by District Judge Lawrence J. O'Neill on 10/19/12. (Hellings, J)
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(DP) Bolin v. Warden of San Quentin State Prison Doc. 291 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 PAUL C. BOLIN, ) ) Petitioner, ) vs. ) ) KEVIN CHAPPELL, as Acting Warden of San ) Quentin State Prison, ) ) Respondent. ) _______________________________________ ) 14 Case No. 1:99-cv-05279 LJO DEATH PENALTY CASE ORDER DENYING RESPONDENT’S MOTION TO PRECLUDE TESTIMONY OF PETITIONER’S STRICKLAND EXPERT DATE: TIME: October 29, 2012 VACATED 1:30 p.m. 15 This matter is before the Court on the motion of Respondent Kevin Chappell, As Acting Warden 16 of San Quentin State Prison to preclude the testimony of the designated Strickland expert1 of Petitioner 17 Paul C. Bolin (“Bolin”) at the evidentiary hearing scheduled for March 18, 2013. The motion was 18 anticipated after the October 3, 2012 case management conference and was timely filed on October 16, 19 2012. The opposition was scheduled to be filed on October 24, 2012 and a hearing was scheduled for 20 October 29, 2012. The Court has determined the motion can be resolved without the benefit of Bolin’s 21 opposition and hereby denies the motion with prejudice. In addition, the Court orders that the testimony 22 of Bolin’s Strickland expert, that is James S. Thomson, will be limited in scope to explaining the legal 23 standard of care and resources available to Kern County capital defense attorneys in 1989 through 1991. 24 I. Background 25 In Mr. Thomson’s declaration (Bolin’s Exhibit 72) he avers he has been practicing law since 26 1978 and has been involved in capital defense work nationwide, with a substantial share in California. 27 28 1 Strickland v. Washington, 466 U.S. 668 (1984). ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 1 Dockets.Justia.com 1 His work includes trials, appeals, habeas corpus petitions, and making presentations at capital defense 2 seminars from the 1970s to the present. Because of his work on capital defense presentations and 3 committees, including on the California Death Penalty Defense Manual and chair of the California State 4 Bar board of legal specialization for criminal law, he avers he has “personal knowledge of the training 5 and assistance that were available to California capital defense counsel at the time of Paul C. Bolin’s 6 case (1989-1991).” 7 Mr. Thomson’s expertise is his knowledge of the many resources that were available to Bolin’s 8 trial attorneys from many different sources and organizations, including relevant 1989 ABA Guidelines, 9 Standards for the Appointment of Counsel in Death Penalty Cases, published In 1987 by the National 10 Legal Aide and Defender Association, the California Attorneys for Criminal Justice, and the California 11 Public Defender’s Association. After reviewing transcripts of pretrial proceedings relevant to jury 12 selection in Bolin’s case, including the motion to change venue, Mr. Thomson also has concluded that 13 numerous aspects of the representation Bolin received from his trial attorneys, Charles Soria and 14 William Cater, did not measure up to the standards established and practiced by members of the various 15 resources. This latter information need not be given at the evidentiary hearing. As noted below, whether 16 Messrs. Soria and Cater were or were not constitutionally ineffective is a decision for the Court. 17 II. The Warden’s Objections to Mr. Thomson’s Testimony 18 The Warden asserts three separate reasons he believes the Court should preclude Mr. Thomson’s 19 testimony. First he claims the expert testimony is barred by AEDPA because Bolin’s attorneys did not 20 present Mr. Thomson’s declaration (or either of the trial attorneys’ respective declarations) to the 21 California Supreme Court. Second he claims the Court should exercise its discretion to exclude Mr. 22 Thomson’s testimony because his testimony will not assist the Court in reaching the ultimate factual 23 conclusion about the claim. Third, he maintains the Court should exercise its discretion to exclude Mr. 24 Thomson’s testimony because Mr. Thomson, himself, is not reliable for is reliance on the ABA 25 Guidelines and the fact he recently was rebuked by the California Supreme Court in In re Reno, 55 Cal. 26 4th 428 (2012). 27 28 ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 2 1 A. 2 As he did in his opposition to Bolin’s evidentiary hearing request, the Warden again argues Bolin 3 is barred from presenting the declarations of Mr. Thomson and Bolin’s trial attorneys because he (Bolin) 4 was not diligent in preparing them and did not present them to the California Supreme Court. He claims 5 this asserted lack of diligence bars further consideration of the proffered evidence under 28 U.S.C. § 6 2254(e)(2). Mandatory Exclusion 7 The Court specifically addressed this issue at pages 52 through 53 of the Order Re: Petitioner’s 8 Request for Evidentiary Hearing, Record Expansion and Merits Review, Amended Following 9 Reconsideration, document 276, filed August 21, 2012. The text of that Order applies here: 10 11 12 13 14 15 16 The only remaining issue relevant to Bolin’s request for an evidentiary hearing is satisfaction of the diligence requirements under § 2254(e)(2). The Court finds that given the procedural history of the case, including abandonment of Bolin’s case by original state-appointed attorney Richard Gilman, the entry of two orders of equitable tolling of the limitations period while federal counsel developed federal claims to be presented in the state and federal petitions (Do. 71 an Doc. 85), and the approval of a case management plan and budget to fund the investigation, it would be anomalous for the Court now to find Bolin’s attorneys were not diligent. Prior federal counsel Jolie Lipsig and Gary Wells exercised great persistence and diligence investigating Bolin’s federal claims and presenting them before the limitations period expired. The controlling Supreme Court case on the issue of diligence, (Michael) Williams [v. Taylor], 529 U.S.423, unquestionably supports this finding. Diligence under § 2254(e)(2) is satisfied when the petitioner seeks an evidentiary hearing in state court, as Bolin did, and the state denies the request, as the California Supreme Court did here. Id. at 437. 17 18 The issue need not be revisited. The testimony of the attorney declarants proffered by Bolin is not barred 19 by § 2254(e)(2) or any other part of AEDPA. 20 B. 21 Citing Federal Rule of Evidence 702, the Warden argues the Court should admit only expert 22 testimony which is scientific, technical, or otherwise beyond what the average trier of fact would know. 23 Separately he argues Mr. Thomson testimony will not be reliable. 24 Discretionary Exclusion 1. Proffered Expert Testimony Will Be of No Assistance 25 The Warden maintains that since the “specialized” information Bolin wishes to present with Mr. 26 Thomson’s testimony pertains only to legal defense standards, the subject matter is not beyond the scope 27 of the Court’s knowledge and the Court already is capable of assessing the issues under Strickland. He 28 further argues the Ninth Circuit has stated that “[e]xpert testimony is not necessary to determine claims ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 3 1 of ineffective of assistance of counsel.” Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010) (citing 2 Hovey v. Ayers, 458 F.3d 892, 910 (9th Cir. 2006)). 3 The Warden’s citation to this quote from Earp is misleading. In that case, the district court 4 excluded the Strickland expert from offering an opinion on whether the trial attorney performed 5 ineffectively. The district court did, however, permit the expert to give testimony about what competent 6 trial counsel in a death penalty case should have done at the time of the petitioner’s trial. Id. The Court 7 of Appeals agreed with this approach and quoted the Hovey opinion as noted in the Warden’s moving 8 papers. There was never a suggestion in either opinion, however, that the testimony of a Strickland 9 expert would not be helpful to a district court in determining what the standard of care was at the time 10 of a petitioner’s trial or, as in the present case, what resources were available to assist reasonable counsel 11 at the time of a petitioner’s trial. Contrary to the Warden’s assertion, the Court will benefit from a 12 recitation of the applicable legal standard at the time of Bolin’s trial. 13 2. Proffered Expert Testimony Is Not Reliable 14 The bases for the Warden’s argument that Mr. Thomson’s testimony will not be reliable are 15 twofold: first Mr. Thomson relies upon the 1989 ABA Guidelines and second he was found to have 16 lacked expertise in applying ineffective assistance of counsel principles before the California Supreme 17 Court in the Reno case. In support of the first position, the Warden cites to Bobby v. Van Hook, 558 U.S. 18 4, 130 S. Ct. 13 (2009), where the high Court criticized the Sixth Circuit Court of Appeals for holding 19 the ABA Guidelines up as “execrable commands with which all capital defense counsel must fully 20 comply,” rather than “merely as evidence of what reasonably diligent attorneys would do.” Id. at ___, 21 130 S. Ct. at 17. This statement, on its face has nothing to do with the exercise of discretion to admit 22 Strickland testimony, even in reliance on ABA Guidelines. Rather it has to do with how a lower court 23 misused the evidence admitted. Notably, in the Van Hook case, the Sixth Circuit also relied on the 2003 24 ABA Guidelines, which were announced 18 years after Robert Van Hook was convicted. 25 The Warden also points out that California Supreme Court in Reno, 55 Cal. 4th at 467, stated 26 the ABA rules were unnecessary and incongruent with constitutional standards for effective legal 27 representation. In reading the excerpt from which this citation is taken, however, it is clear the 28 proposition advanced by the Warden is unsupported. The context for the California court’s statement ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 4 1 was the propriety of reasserting procedurally defaulted claims in successive petitions. The attorneys 2 representing Mr. Reno2 asserted that the ABA Guidelines urged capital defense lawyers to reassert 3 defaulted claims. The California Supreme Court was unpersuaded by this argument. 4 Although Mr. Thomson and his co-counsel in the Reno case were found to be incorrect in their 5 reliance on the ABA Guidelines on the matter of reasserting defaulted claims in state court, the issue is 6 wholly irrelevant to whether ABA Guidelines would be relevant to what reasonably diligent Kern 7 County counsel would do in 1989 through 1991 when faced with a change of venue issue like the one 8 Messrs. Soria and Cater confronted in Bolin’s case. The ABA Guidelines argument, both as presented 9 in the Van Hook case and the Reno case is unpersuasive. The Court can only conclude that the Warden 10 either failed to read carefully the cited cases or has attempted to mislead. Both possibilities are 11 unacceptable. 12 The argument regarding the California Supreme Court’s separate rebuke of Mr. Thomson in the 13 Reno case for abuse of the writ, is similarly inapposite. In the body of the opinion, the California court 14 notes the petition in question was Mr. Reno’s second state petition, 500 pages long, and raised 143 15 separate claims, nearly all of which either were not cognizable or procedurally barred. The abuse of the 16 writ description was applied to the petition because it advanced so many claims that had been denied 17 previously by the same court (Waltreus bar)3 or which should have been raised previously with no 18 accompanying explanation for why they were not so raised (Dixon bar).4 Id. at 443. 19 The Warden then proceeds to catalogue how the California court called out the conduct it found 20 abusive of Mr. Thomson (and his co-counsel in the Reno case).5 Among the examples the Warden 21 mentions is that Mr. Thomson had a “ethical duty” under California Business and Professions Code § 22 6088, “to notify the court if an issue in the petition [wa]s procedurally barred,” and he failed to do so. 23 24 25 2 Mr. Thomson’s co-counsel in the Reno case were Saor Stetler and Peter Gianini. All three attorneys were rebuked equally in the Reno case. 3 In re Waltreus, 62 Cal. 2d 281, 225 (1965). 4 In re Dixon, 41 Cal. 2d 756, 759 (1953). 26 27 5 28 In fact the California court never singled out any of the attorneys by name. It refers to Mr. Reno’s attorneys simply as “present counsel.” ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 5 1 The Warden refers to this failure as grounds for finding Mr. Thomson lacking in credibility. In other 2 instances, the California court referred to allegations in Mr. Reno’s petition as “demonstrably untrue on 3 their face” or “demonstrably false,” citing id. at 488 and 501. These statements relate to the reassertion 4 of Mr. Reno’s double jeopardy claim under the ineffective assistance of appellate counsel umbrella and 5 reassertion of a Brady claim6 for the prosecutor’s failure to reveal alleged impeachment evidence about 6 a prosecution witness. Regarding the double jeopardy claim, contrary to the allegations in the petition 7 about all the failures of Mr. Reno’s appellate attorney, the California Supreme Court found that the 8 appellate attorney had adequately raised the double jeopardy claim, citing appropriate authority in the 9 process. Similarly, with respect to the Brady claim the state court found that the second petition iteration 10 of the claim was virtually identical to the first iteration (in the original state habeas petition) and that the 11 allegations claiming new law and facts had been located were false. The court then went on say that this 12 kind of “unexplained repackaging of prior claims” was a way of trying to mislead the court. Id. at 501. 13 The Warden attributes solely to Mr. Thomson the failure to refute or distinguish binding authority and 14 disregarding his duty not to mislead the judge or any judicial officer by artifice or false statement of fact 15 or law. Id. at 501. There are more examples of the abuse of the writ in the same vein. 16 None of these examples, disturbing as they are from an administrative standpoint in resolving 17 death penalty cases, demonstrates a lack of expertise in Mr. Thomson’s ability to apply ineffective 18 assistance of counsel principles. Nor are they relevant to Mr. Thomson’s qualifications as a legal expert 19 capable of explaining legal standards of practice and resources available during Bolin’s trial. Again, the 20 Court must conclude that either the Warden failed to read carefully the Reno opinion for context or he 21 too is attempting to mislead. 22 C. 23 While the motion is not well taken, the Court nevertheless places a limit on the scope of Mr. 24 Thomson’s anticipated testimony at the evidentiary hearing. That is, his evidentiary contribution shall 25 be circumscribed to explaining the legal standard of care and resources available to Kern County capital 26 defense attorneys in 1989 through 1991. It is unnecessary for him to render an opinion on whether Limited Scope of Mr. Thomson’s Testimony 27 28 6 Brady v. Maryland, 373 U.S. 83 (1963). ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 6 1 Messrs. Soria and Cater were constitutionally ineffective. That is a conclusion that requires judicial 2 determination based on the relevant standard of care and attorney conduct. Nor will the Court permit 3 Mr. Thomson to testify about the prejudice Bolin may have suffered as a result of the alleged 4 incompetence of his trial attorneys. That determination is always for the Court and based on the 5 evidentiary record as well as argument of counsel. Should Bolin object to this limitation he will be given 6 an opportunity to be heard on the issue, as set forth below. 7 III. 8 Order In light of the foregoing: 9 1. 10 The Warden’s motion to exclude the testimony of Bolin’s Strickland expert, Mr. Thomson, is denied with prejudice. 11 2. The hearing on the motion is vacated. 12 3. The Warden and his attorneys are admonished that inapposite case citations, 13 whether intentional or inadvertent, are disapproved. 14 4. The anticipated testimony of Mr. Thomson will be limited to an explanation of 15 the legal standard of care and resources available to Kern County capital defense 16 attorneys in 1989 to 1991. 17 5. Should Bolin object to the testimonial limitation established by the Court, he may 18 file papers explaining his objection within 5 (five) calendar days from the filing 19 of this Order. 20 21 IT IS SO ORDERED. 22 Dated: October 19, 2012 /s/ Lawrence J. O’Neill Lawrence J. O’Neill United States District Judge 23 24 25 26 27 28 ODenyingResptMo2ExcludeStricklandExpert.bol.wpd 7
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