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Davis v. Ransdell

United States District Court, E.D. California
Feb 7, 2006
1:03-CV-6484 LJO HC (E.D. Cal. Feb. 7, 2006)

Opinion

1:03-CV-6484 LJO HC.

February 7, 2006


ORDER SCHEDULING TELEPHONIC HEARING


Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented in this action by Michael J. Fitzpatrick, Esq. Respondent is represented in this action by Deputy Attorney General Julie A. Hokans, Esq. The parties having voluntarily consented to exercise of Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1), by order dated April 5, 2004, this case was assigned to the Magistrate Judge for all purposes, including entry of final judgment.

On October 24, 2003, Petitioner filed a federal habeas petition in this Court. Respondent filed an answer on May 3, 2004. On June 1, 2004, Petitioner filed his traverse.

The petition presents one ground for relief: Petitioner claims he received ineffective assistance of counsel when defense counsel Dennis Doherty failed to call witness Gabriel Ayala for the defense. Gabriel Ayala was a corrections officer at the prison during the relevant time period. According to his sworn declaration, see Exhibit 1, Traverse, Ayala was present during a conversation between Petitioner and Officer W., one of the victims in this case, which occurred several months after the incident but before the victim actually reported the incident to authorities. According to Ayala, Officer W. instigated a conversation with Petitioner in which Officer W. and Petitioner appeared to be "happy and laughing and joking with each other." Ayala stated that Officer W. "exhibited no fear of [Petitioner] nor did she exhibit any hostility or antagonism toward him by either her words or actions." Ayala stated that he had been subpoenaed but was never called to testify. He also stated that no lawyer or investigator representing Petitioner contacted him until after the trial.

Petitioner argues that Ayala's testimony was critical because it contradicted Officer W.'s testimony that she was afraid of Petitioner. Petitioner contends Ayala's testimony would have "cast enormous doubt on [Officer W.'s] credibility and on whether the attacks happened."

In an affidavit submitted to the 5th DCA, defense counsel explained that he decided not to call Ayala because he considered Ayala's testimony to be cumulative, since it was undisputed that the victim "did not make any outcries until months later." See Exhibit 2, Traverse. In addition, counsel stated that Petitioner did not object at any time "before or during trial that [counsel] was not calling some witness who he wanted [him] to call." Id. However, defense counsel does not speak to the points raised by Petitioner, to wit, to what degree if any he considered Ayala's potential testimony in seeking to challenge the victim's credibility. Defense counsel also stated that he "believed there was some damaging area for cross-examination of Mr. Ayala by the prosecutor, in some interview of him, but I am not sure of this because I gave all of my documents in this case to the petitioner." Id. However, Ayala's declaration contradicts this last assertion by counsel, and Petitioner contends he has nothing in his case file that would corroborate counsel's assertion.

On the basis of good cause, the Court finds it necessary to order an evidentiary hearing in this matter. See Rule 8(a) of the Rules Governing Section 2254 Cases; Townsend v. Sain, 372 U.S. 293, 313, 318 (1963).

Accordingly, the Court:

1. ORDERS the parties to appear for a hearing on February 27, 2006, at 8:45 a.m., to meet and confer for scheduling of the evidentiary hearing; and

2. DIRECTS the parties to appear by telephone by arranging a one line conference call and telephoning the Court at (559) 499-5680.

IT IS SO ORDERED.


Summaries of

Davis v. Ransdell

United States District Court, E.D. California
Feb 7, 2006
1:03-CV-6484 LJO HC (E.D. Cal. Feb. 7, 2006)
Case details for

Davis v. Ransdell

Case Details

Full title:ANDRE DAVIS, Petitioner, v. CHARLES T. RANSDELL, Warden, Respondent

Court:United States District Court, E.D. California

Date published: Feb 7, 2006

Citations

1:03-CV-6484 LJO HC (E.D. Cal. Feb. 7, 2006)