Opinion
Civil No. 02cv0208-JAH (LSP).
September 27, 2005.
Presently before the Court is a Report and Recommendation ("RR") filed by United States Magistrate Judge Leo S. Papas which recommends granting the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Allen Scott Fisher ("Petitioner"), a state prisoner proceeding by and through counsel appointed by this Court. Also before the Court are Respondent's Objections to the findings and conclusions of the Magistrate Judge and Petitioner's Reply to Respondent's Objections.
The Court has reviewed the RR pursuant to 28 U.S.C. § 636(b)(1), which provides that "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C.A. § 636(b)(1) (West Supp. 2005). For the following reasons, the Court ADOPTS in part as modified and declines to adopt in part the findings and conclusions of the Magistrate Judge, and REMANDS for further proceedings.
A. Standard of Review
Respondent objects to the standard of review applied by the RR. (Obj. at 6.) The RR, by stating that it was unable to apply the provisions of 28 U.S.C. § 2254(d) (see RR at p. 11 n. 3), failed to apply the proper standard of review regarding the sole claim presented in the Petition.
The Court uses the term "Petition" to refer to the operative pleading in this action, which is the First Amended Petition filed February 20, 2002, viewed in connection with the stipulation of the parties filed on December 3, 2004, wherein the parties agreed that the only claim remaining in this action is one alleging that Petitioner's federal constitutional rights were violated because his guilty plea was not knowing and voluntary within the meaning of Boykin v. Alabama, 395 U.S. 238 (1969).
The Court declines to adopt the findings in the RR that, because the state supreme and appellate courts summarily denied Petitioner's claim, there was nothing to which this Court could defer, and declines to adopt the finding that the summary denial by the appellate court means this Court cannot be sure the appellate court considered the materials submitted to it in reaching its decision (RR at 24). See Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002) (holding that § 2254(d) must be applied even where state court did not issue a statement of reasoning if the claim was adjudicated on the merits); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (holding that when the state court reaches the merits of a claim but provides no reasoning to support its conclusion, "although we independently review the record, we still defer to the state court's ultimate decision."); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992) (stating that the silent denials of state appellate and supreme courts are considered to be decisions "on the merits of the claims.")
Upon remand, the Magistrate Judge shall apply the following standard of review: Based on an independent review of the record, was the state court's denial of the sole claim presented in the Petition contrary to, or involve an objectively unreasonable application of, clearly established federal law, and/or was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d). The appropriate level of deference shall be afforded to the ultimate determination by the state court regarding the Boykin claim as well as to the factual findings of the state trial court.
B. Competency Claim
The RR raised, sua sponte, a claim which is not presented in these proceedings, to wit, whether Petitioner was competent to enter a guilty plea in state court, and recommended granting habeas relief as to this claim. (RR at 29-33.) The parties have previously stipulated that the Boykin claim is the sole claim presented in this action. (Doc. No. 47.) The RR failed to consider whether raising the competency claim sua sponte converted the Petition from a fully-exhausted petition into a mixed petition requiring either dismissal or notification of Petitioner of his options to avoid dismissal, see Rhines v. Weber, 544 U.S. ___, 125 S.Ct. 1528 (2005), and failed to consider whether the claim meets the technical requirements for exhaustion but is procedurally defaulted. See Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The record reveals nothing more than the parties' continuing reliance on their stipulation that the Boykin claim is the only claim presented in this action. Therefore, on remand the Magistrate Judge shall treat the Petition as raising a single Boykin claim. The Court takes no position regarding the extent to which Petitioner's competence may be relevant to that claim.
To the extent the RR interpreted this Court's September 21, 2004 Order that Petitioner was entitled to equitable tolling as a finding that Petitioner was incompetent to proceed in this action (and by extension or implication incompetent to plead guilty in state court), the Court declines to adopt such a reading of its Order. The determination regarding competence to plead guilty in state court, to proceed with a habeas action in federal court, and for application of the equitable tolling doctrine, are all distinct. Petitioner's competence to proceed with his habeas action while represented by counsel is the only subject of inquiry at this time, assuming such an inquiry is necessary.See e.g. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) ("[W]hen a substantial question exists regarding the mental competence of a party proceeding pro se, the proper procedure is for the district court to conduct a hearing to determine competence, so a guardian ad litem can be appointed, if necessary" prior to entering judgment.) (emphasis added); see also Rees v. Payton, 384 U.S. 312, 314 (1966) (stating that competence to proceed in federal habeas turns on whether the petitioner suffers from a mental defect or disease and, if so, whether it prevents petitioner from understanding the legal situation, and, if not, does the mental disorder nevertheless prevent him from making a rational choice among his options.) The record at the present time does not support a finding that Petitioner is incompetent to proceed with his federal habeas action with the assistance of counsel. However, if the Magistrate Judge perceives that a substantial question exists regarding Petitioner's ability to proceed in this action even with the assistance of counsel, appropriate proceedings shall be conducted on remand.
In fact, the RR noted that Dr. Lewkowicz has opined that Petitioner's disability could be accommodated. (RR at 32 n. 13.)
C. Expansion of the Record/Evidentiary Hearing
Respondent objects to the use of Dr. Lewkowicz' evaluation in support of the Boykin claim, and objects to the use of Rule 7 of the Rules following 28 U.S.C. § 2254 to expand the record to include Dr. Lewkowicz' evaluation in support of the Boykin claim. The Court sustains this objection and finds that the RR incorrectly utilized Rule 7 to expand the record to include Dr. Lewkowicz' evaluation because Respondent was not provided an opportunity to challenge that evaluation. See Rule 7(c) foll. 28 U.S.C. § 2254 ("The judge must give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.") (emphasis added). The Court notes that expansion of the record under Rule 7 is typically utilized to include in the record materials which were in existence at the time of the state court proceedings, or otherwise predate the filing of the federal habeas action, in order to determine whether the federal habeas petition can be denied without conducting an evidentiary hearing. The introduction of materials prepared for the purposes of federal habeas proceedings, especially expert witness materials such as Dr. Lewkowicz' evaluation, may appropriately enter the record through the procedures attendant to an evidentiary hearing. See James S. Liebman Randy Hertz, Federal Habeas Corpus Practice and Procedure, § 19.5 (3d ed. 1998). If such evidence is presented in support of or in opposition to the Petition, an evidentiary hearing must be held unless the parties waive the opportunity to cross-examine the expert witness or a proper determination is made that no such opportunity is to be provided.
The Court rejects Petitioner's contention that Respondent's failure to object to the use of discovery under Rule 6 to obtain Dr. Lewkowicz' evaluation waives any objection by Respondent to expansion of the record under Rule 7 to include that evaluation. The Court finds that by objecting in the Answer to the use of Dr. Lewkowicz' evaluation, Respondent has preserved any and all objections to its use in ruling on the merits of the Petition. The Court also rejects Petitioner's contention that an evidentiary hearing is precluded by Respondent's failure to request one.
Although not addressed in the RR, the Court finds that application of the provisions of 28 U.S.C. § 2254(e)(2) to the Rule 7 analysis, as well as the determination whether an evidentiary hearing is permitted, is required by Holland v. Jackson, 542 U.S. ___, 124 S.Ct. 2736, 2738 (2004) andCooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2004). The Court finds, however, that § 2254(e)(2) does not preclude the Court from holding an evidentiary hearing or expanding the record under Rule 7. The Court ADOPTS the finding in the RR, made in a different context, that Petitioner did not fail to develop the record in the state court with respect to his Boykin claim (see RR at 12-15, 26-28), and modifies this finding so as to hold that section 2254(e)(2) does not preclude this Court from expanding the record under Rule 7 as appropriate or conducting an evidentiary hearing as to the Boykin claim.
Upon remand, in the event the Magistrate Judge determines the record should be expanded and an evidentiary hearing necessary, the Magistrate Judge is directed to afford Respondent the opportunity to challenge any expert evidence (e.g. Dr. Lewkowicz' evaluation) and to present additional expert testimony if Respondent wishes via an evidentiary hearing, and to provide Petitioner the same opportunity with respect to any expert witness evidence presented by Respondent. If an evidentiary hearing is held it need not be limited to expert witness evidence, however, and the Court anticipates that evidence relevant to whether Petitioner knowingly and voluntarily entered his guilty plea would be introduced, bearing in mind that the ultimate determination in this case is whether the adjudication by the state court of Petitioner's claim to the contrary was objectively reasonable within the meaning of 28 U.S.C. § 2254(d).
The Court declines to adopt the finding in the RR (RR at 27 n. 10) that Judge Gonzalez' March 18, 2003 Order was an order to expand the existing evidentiary record under Rule 7 in support of Petitioner's Boykin claim. That Order remanded with instructions that Petitioner's allegations regarding his inability to communicate with the Court without the aid of counsel were to be considered only in the equitable tolling and appointment of counsel inquiries.
D. Factual Findings
Respondent objects to the use of the factual findings in the RR to the extent they were made on the basis of the materials submitted by Petitioner which have not been subjected to adversarial testing. The Court declines at this time to adopt any such factual findings by the Magistrate Judge. The matter is remanded with directions to the Magistrate Judge to properly develop the record prior to making any factual findings, including allowing the parties to present and challenge evidence through an evidentiary hearing if necessary.
E. Conclusion and Order
1) The Court ADOPTS in part as modified and declines to adopt in part the findings and conclusions of the Magistrate Judge as set forth above; 2) this matter will proceed only on Petitioner'sBoykin claim; 3) the Clerk of the Court is DIRECTED to modify the docket to reflect that Jeanne Woodford is the Respondent in this action; and 4) the matter is remanded to the Magistrate Judge for further proceedings consistent with this Order.
IT IS SO ORDERED.