Opinion
3:10-cv-0584-LRH-VPC.
November 22, 2010
ORDER
Narviez Alexander, a Nevada prisoner, is proceeding in this court on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has filed a motion for Leave of Court to Proceed with Discovery (docket #4) which was not served upon the counsel of record in this matter, but rather on the Nevada State Attorney General, Catharine Cortez Masto, along with a motion for evidentiary Hearing (docket #12), which was served upon counsel of record. No response has been filed by respondents to either motion, although an Answer and support exhibits was recently filed.
The court believes a response to the motions is necessary to proper consideration thereof. Therefore, respondents shall be electronically served with docket #4 and #12 and shall be required to respond thereto.
Petitioner is also advised that he is entitled to file a reply to the answer to the petition and such will be due within thirty days of the court's determination of the aforementioned pending motions.
IT IS THEREFORE ORDERED that the Clerk shall electronically serve the Motion for Leave of Court to Proceed with Discovery (docket #4) and the Motion for Evidentiary Hearing (docket #12).
IT IS FURTHER ORDER that respondents shall have twenty days from entry of this order to file their response to the motion. Thereafter, petitioner shall have fifteen days to file his reply.
IT IS FURTHER ORDERED that the Clerk shall send to petitioner a copy of the Court's docket in this matter. The motion for same (docket #11) is GRANTED. IT IS FURTHER ORDERED that petitioner's reply to the Answer shall be filed within thirty days of the entry of the court's decision on the pending motions or, if such motions are granted, upon further order of the Court.
DATED this 22nd day of November, 2010.
MOTION FOR LEAVE OF COURT TO PROCEED WITH DISCOVERY
Petitioner, Narviez V. Alexander, In-Proper Person, respectfully requests this Honorable Court grant his Motion For Leave of Court To Proceed With Discovery pursuant to Local Rule 7-2(a) and Rule 6(a) of the Rules Governing Habeas Corpus Cases.
This motion is made and based upon the attached Points And Authorities, the attached Discovery Requests, all pleadings and papers on file before this Court, and any oral argument deemed necessary in a telephonic hearing.
Dated this 27th day of September, 2010.
POINTS AND AUTHORITIES
"A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, . . ." Rules Governing Habeas Corpus 6(a); Harris v Nelson, 394 U.S. 286, 300 (1969).In Wagner v United States, the Ninth Circuit Court of Appeals opined that the federal District Court could permit interrogatories, provide for deposing witnesses, "and take such other pre-hearing steps as may be appropriate." Id., 418 F 2d 618, 621 (9th Cir. 1969). Such pre-hearing discovery may show an evidentiary hearing to be unnecessary, as when there are "no disputed issues of law or fact." 83 Harv. L. Rev. 1038, 1181 (1970).
In the instant case, the State Court rendered factual findings on the "disputed factual claims" set forth by the Petitioner without conducting an evidentiary hearing in violation of the precedent set forth in Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745 (1963); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The Courts further failed to request the Disciplinary Hearing Transcripts, depose or interogate; or, seck an affidavit from the Respondents to resolve any of the Petitioner's "disputed factual allegations," through no fault of the Petitioner's. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 (1986) (impediment external to defense). In addition, the State Courts rendered erroneous legal conclusions on improper factual findings. And while the Respondents would be more than pleased to continue to inappropriately conceal the correct factual evidence, the Petitioner assects that "GOOD CAUSE" and the interests of justice require this Court to permit discovery.
PROPOSED DISCOVERY REQUESTS
The Petitioner submits that be intends to request pursuant to F.R.Civ.P. 34, the production of the Disciplinary Hearing Transcripts for OTC 296540 dated October 15, 2009 and November 7, 2009; a "redocted" copy of the confidential informant's statement; and, copies of all non confidential reports. The Petitioner intends to request admissions pursuant to F.R.Civ.P. 36, from the Disciplinary Hearing Officer in regards to his actions, omissions and inactions before and during the disciplinary hearing. And, finally, the Petitioner intends to propound interrogatories upon the Disciplinary Hearing Officer to inquire into his reliability findings, the conduct of the hearing, and its faimess.
Thus, the Petitioner prays this Court grant him Leave to Proceed With Discovery.
Dated this 27th day of September, 2010
MOTION FOR EVIDENTIARY HEARING
Petitioner, Narviez V. Alexander (Alexander) In — Proper Person respectfully submits this Motion For Evidentiary Hearing pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts.
This motion is made and based upon the attached points and authorities, exhibits and all pleadings and papers on file in the above-entitled matter.
Respectfully submitted this 1st day of November, 2010.
POINTS AND AUTHORITIES
It is well established Supreme Court law that a habeas corpus Petitioner is entitled to an evidentiary hearing if he can show that:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005); citing,Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745 (1963). If a habeas corpus Petitioner can establish any one of the above-stated circumstances, then the state court's decision was based on an unreasonable determination of the facts and the federal court can independently review the merits of that decision by conducting an evidentiary hearing. Id. 431 F.3d at 1167. See also Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (holding that: "If . . . a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an `unreasonable determination' of the facts.")
Accordingly, where a petitioner establishes a colorable claim for relief and has never been afforded a state or federal hearing on his claim, the ninth circuit will remand for an evidentiary hearing. Id., Earp, 431 F.3d at 1167; citing, Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005); Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004); Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001).
In the instant case, Alexander alleged six (6) claims of constitutional error, and alleged facts, which, if proven, would entitle him to relief under the "structural Defect" standard enunciated in Neder v. U.S., 527 U.S. 1, 7, 119 S.Ct. 1827 (1999); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246 (1991); Edwards v. Balisok, 520 U.S. 641, 646-47, 117 S.Ct. 1584 (1997); and, Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078 (1993). All of the facts stated were based upon the attached Affidavits sworn facts as relayed in Alexander's initial filings in the State Courts. See attached Exhibit "A".
Despite Alexander's diligence in relaying those facts, he did not receive a full and fair opportunity to develop those facts.Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). Hence, Alexander is entitled to an evidentiary hearing to develop material facts, to resolve factual disputes and to receive or produce evidence which will support his entitlement to relief.Townsend, 372 U.S. at 313, 83 S.Ct. 745.
In both the State Court and now the Federal Court, Alexander alleged that the Disciplinary Hearing Officer falsified the confidential information section and witness section of the Sommary of Disciplinary Hearing Form III. (Exhibit "A", p. 8, # 28 and 29), Yet, the State Court neglected to explore these facts, despite the fact that the Respondents refused to produce the Disciplinary Hearing Transcripts and the remaining record could not repel these allegations.
Alexander also alleged that he was denied notice of or an opportunity to review the evidence against him (undisputed); an opportunity to defend himself with selected witnesses and evidence (undisputed); that the Disciplinary Hearing Officer was partial and biased (disputed); that the petitioner was retaliated against (unchallenged); and, that the confidential information was not adequately determined to be reliable pursuant to the requirements of the U.S. Supreme Court. See Exhibit "A", p. 5, # 17-18; "A", p. 7, # 26 and 27; "A", p. 6, # 22 thru 29; "A", p. 3-4, # 11-13; and, "A", p. 6-7, # 24 thru 28. Again, the State Court neglected to explore these facts, despite the fact that the Respondents refused to produce the Disciplinary Hearing Transcripts and the remaining record could not repel these allegations.
Therefore, based on the above and pursuant to the authority set forth in Townsend, Earp and Taylor, Alexander is entitled — as a matter of law — to an evidentiary hearing to develop facts for the above — stated factual allegations.
CONCLUSION
Alexander prays this Court conduct an evidentiary hearing and and allow him to marshall the facts in support of his factual allegations. Therefore, Alexander prays he is granted the relief to which he is entitled.
Respectfolly submitted this 1st day of November, 2010.
Exhibit A AFFIDAVIT
) STATE OF NEVADA ) WHITE PINE COUNTY ) I, Norviez V. Alexander # 44839, do solemly swear under the penalty of perjory and pursuant to NRS 53,045, NRS 208.165 et seq., and 28 U.S.C. 1746, that the following is true and correct:1. On June 30, 2009, at approximately 8:30 p.m., my cell-mate Nathaniel Johnigan # 95389 and inmate Devon Alexander # 1015158, were escorted to the H.D.S.P. medical department where they were examined and quostioned by Sgt. W. Bloomfield;
2. At that time, Sgt. Bloomfield notified them that he had received an "anonymous" kite stating that inmate Alexander # 44839 (Affiant) had sexually assoulted them. Both inmates denied that any "Sexual Assault" occurred;
3. At approximately 10:00 p.m. on June 30, 2009, the affiant was escorted to H.D.S.P.'s medical department wherein he was examined and questioned by Sgt. W. Bloomfield in regards to the Sexual Assault allegotions. At that time, the affiant denied the allegations and the medical department concorred;
4. Upon completion of the medical evaluation the affiant was sent to the Operations' Holding Cells where he was placed under Administrative Segregation;
5. On July 5, 2009, the affiant received on NDOC Disciplinary Form I (OIC 292979) charging him with violations of the NDOC, Code of Penal Discipline, to wit: one (1) count of Sexual Assault (MJ-19) and one (1) count of Possession of Contraband (MJ-26);
6. The Report stated, "on 6/30/2009 at approximately 8:00 PM, I SGT Bloomfield, was notified by LT. Provencal that inmate Alexander, Nerviez # 44839, 12027A was identified on a snitch kite that he allegedly sexually assauited inmate Alexander, Devon, 1015158, # 12D24A. Inmates Alexander, D. and Johnigan, Nathaniel # 95389, 12D27A of approximately 8:15 PM were escorted to the infirmary for medical evaluation. Both inmates claimed that no sexual assault took place. Inmate Alexander was later escorted to the infirmary for medical evaluation and released to Operations Holding Cells where he was placed under Administrative Segregation . . .";
7. The N.O.C. listed the "Anonymous kite and officer's report" as evidence as required by the Disciplinary Procedure listed inNDOC A.R. 707.2(3), which states, "The report shall contain specific details of the violation, including the following: Evidence, if collected, and location," and, "the exact disposition of any evidence involved."
8. Also, on July 5, 2009, the affiant received the NDOC Disciplinary Form II. Under the Statement of Offender, it only stated, "I'm not guilty." The Preliminary Hearing Officer, Sgt. Allan Capper failed to list the affiant's requested witnesses;
9. On August 7, 2009, the affiant attended his Disciplinary Hearing. At that time, the affiant requested numerous witnesses, yet the Disciplinary Hearing Officer, lt. Conrod Schaff, did not allow any of the affiant's witnesses to appear or be questioned as required by NDOC A.R. 707.2(B)(3)(e)(7)(a), which states, "If the inmate pleads "not guilty," they shall be given a qualified opportonity to call witnesses on their behalf.";
10. The hearing officer never met or considered any testimony from the affiant's witnesses and based his entire conclusion on the officer's report wherein it stated, "Both inmates claimed that no sexual assault took place." As a result of that statement, the Hearing Officer Dismissed the charges;
11. On August 19, 2009, the affiant, inmate Johnigan and the alleged victim, inmate Alexander # 1015158, were released from Administrative Segregation, however, the affiant was told he would not be allowed to return to work and would be transferred to another medium institution;
12. On August 21, 2009, the affiant sent a Notice of Intent to Sue to the Inspector General's Office based upon the treatment he was enduring as a result of the sexual assault allegations;
13. Upon reciept of my notice, and approximately twelve (12) days after sending the notice, an investigator (H. Bush) from the Inspector Genecal's Office had the affiant ceturned to Administrative Segregation and further recharged the affiant with the same Sexual Assault charge, against the same alleged victim, from the same changes that had been previously dismissed;
14. Although written on September 3, 2009, the affiant did not receive the new report until October 7, 2009;
15. On October 7, 2009, the affiant received on NDOC Disciplinary Form I (OIC 296540) charging him with a single violation of the NDOC, Code of Penal Discipline, to wit: one (1) count of Sexual Rssault (MJ-19);
16. The Report stated, "on 7-1-2009 a notice of charges statement was written regarding information received from a reliable source stating that Nerviez Alexander did engage in sexual activity with inmate Alexander, Devon # 1015158 using fear and pressure to force Alexander, D to submit. This notice of charges was dismissed due to a computer error which has since been repaired. The information received by the I.G.'s office stated that `Nerviez' had been having sexual relations with `Devon' for several months, against "Devon's" will. The sexual activity only stopped when `Devon' had gained enough confidence and enough associates that he no longer felt threatened by `Nerviez' and told him to stop. Additionally, it should be noted that `Devon' was a YOP inmate and at the time of the activity was 17 years old.";
17. Under the evidence section the N.O.C. failed to "notify" the affiant of any evidence in support per A.R. 707.2(A)(3), failed to "notify" the affiant of the use of a confidential informant per A.R. 707, 2(A)(3), and failed to contain any additional documentary evidence in support thereof, A.R. 707.2(B)(3)(e)(2);
18. In fact, the body of the report misled the affiant info believing that this N.O.C. was based entirely upon the "anonymous kite" from the first Disciplinary Report (OIC 292979); and, completely failed to "notify" the affiant of a confidential informant in which to defend against;
19. Also, on October 7, 2009, the affiant received the Disciplinary Form II. Under the Statement of Offender, the affiant explained to the Preliminary Hearing Officer Sgt. Everett Ercolani, that, "This Was Investigated By The Medical Staff At H.D.S.P. And By SGT. Bloomfield And In Which They Both (Alexander, D. And Johnigan) Told Them That No Sexual Activities Occorred. Also, The Original NOC Was Dismissed By Lt Schaff Based On The Testimony Of Alexander And Johnigan."
20. The affiant also requested inmates Alexander, D., Johnigan, N., and officer Holmes, W. as witnesses, and further explained to Sgt. Ercolani, that, Devon Alexander was expected to testify that — out of anger — he told some inmates a slanderous rumor in an attempt to get the affiant beat up. That he never expected it to make it to the police, and that he testified to the truth in the first interview;
21. The affiant also requested, the interviewing nurse, the video surveillance and the anonymous kite. Upon finding the affiant's requests relevant, Sgt. Ercolani listed most of this information on the Disciplinary Form II; to be, carried over to the Disciplinary Form III;
22. On October 15, 2009, at approximately 8:45 p.m., while serving summary forms to two other cells, Lt. Conrad Schaff not only discussed the affiant's personal confidential information with another inmate, but in fact told the other inmate that he would find the affiant guilty;
23. At that time, Lt. Conrad Schaff also came to the affiant's cell door and told him, "I don't care what you say! I'm just going to sentence you to 540 days and 180 days stat loss!"
24. On October 17, 2009, at approximately 9:30 p.m., DHO Conrad Schaff conducted the affiant's Disciplinary Hearing. At that time, the DHO failed to produce any new evidence; failed to ellicit or present testimony from the confidential informant (A.R. 707.2(B)(3)(e)(12)(b); 707.2(A)(3) and 707.9(E)(1)); failed to disclose that he had or had not considered evidence of a confidential nature (Id. A.R. 707); failed to disclose whether or not he knew the confidential informant and considered him reliable (A.R. 707.9(c)(2) and 707.9(E)(1)); failed to present testimony from the investigating officer as to the truthfulness of his report (A.R. 707.9(c)(2) and 707.9(E)(1)) or even allowed the investigator to testify; and, directly cefused to allow the affiant to present his witnesses (A.R. 707.2(B)(3)(e)(7)); his evidence or request disclosore of evidence that would undermine the informant's allegations (A.R. 707.2(B)(3)(e)(6) and707.2(B)(3)(e)(11)(b));
25. After becoming severly frustrated with the affiant's requests, the DHO continued the Disciplinary Hearing;
26. Then, on November 7, 2009, at approximately 7:30 p.m., the DHO, Lt. Schoff conducted a second disciplinary hearing. Again, the DHO failed to produce any evidence other than the officer's notice of charges (report) (A.R. 707.2(B)(3)(e)(12)(b)); failed to introduce or notify the affiant of the confidential informant or confidential investigative interview (A.R. 707.2(A)(3);707.2(B)(3)(e)(12)(b) and 707.9(E)(1)); failed to ellicit or present testimony from the confidential informant (Id. A.R. 707); failed to disclose that he had or had not considered evidence of a confidential nature (Id. A.R. 707); failed to disclose whether or not be knew the confidential informant and considered him reliable (A.R. 707.9(c)(2) and 707.9(E)(1)); failed to present testimony from the investigating officer as to the trothfolness of his report (A.R. 707.9(c)(2) and 707.9(E)(1)) or even allowed the investigator to testify; failed to conduct a sepecate confidential informant hearing (A.R. 707.2(B)(3)(e)(1) and707.2(B)(3)(e)(12)(b)); failed to consider exculpatory evidence that would have proven the confidential information to be un-reliable (A.R. 707.2(B)(3)(e)(11)(b)); and, directly refosed to permit the affiant to present his witnesses (A.R. 707.2(B)(3)(e)(7); his evidence, or request disclosure of evidence that would undermine the informant's allegations (A.R. 707.2(B)(3)(e)(6) and 707.2(B)(3)(e)(11)(b));
27. The DHO told the affiant to save his witnesses and evidence for his appeal and would not allow the affiant to put on a defense through specified witnesses or factual evidence;
28. Then, in his preparation of the Summary of Disciplinary Hearing Form III, the DHO falsified the confidential informant area by stating that the investigator testified, when he did not; that there was corroborating testimony, when there was none; that he had first hand knowledge of the source, when he didn't even know who the source was; and, that be reviewed the documents and found them reliable, when he never even read them;
29. He further falsified the witness information area with deceit and bias by declaring that the affiant, "was asked and does not want a witness," when the affiant clearly requested to present witness testimony;
30. The affiant was sanctioned to and has received 120 days Disciplinary Segregation, which has been changed to "indefinite" confinement, 400 days stat loss, a transfer to a maximom custody facility, one (1) year loss of parole; and, restitution;
Further your affiant sayeth naught;
Pursuant to Nevada Revised Statutes 53.045, Nevada Revised States 208.165 et seq., and 28 U.S.C. 1746, I, Narviez V. Alexander # 44839, do hereby declare, under the penalty of perjory, that the foregoing Affidavit is true and correct to the best of my knowledge as to each and every fact stated herein. As to those matters stated on belief, the affiant believes them to be true to the best of his knowledge.
Exesuted of Ely State Prison on the 21 day of October, 2010.21ST
By _________________________ Narviez V. Alexander # 44839 Affiant Subscribed and sworn to before me on the day of October, 2010. By ___________________________ NOTARY PUBLIC