Opinion
Civil No. 00-961-FR.
February 14, 2002
Steven T. Wax, Federal Public Defender, Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorneys for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
The matter before the court is the petitioner's motion for subpoenas (#33) parts (3) and (4).
BACKGROUND
The petitioner, Massoud Jafari, who is in the custody of the respondent, the Superintendent of the Snake River Correctional Institution, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner Jafari's conviction resulted from events which took place in the early morning hours of September 29, 1996. At trial, Laura Morrison testified that Jafari got into her car without her permission; that he had a knife when he entered her vehicle; that he held it palm-up near the gear shift; that he ordered her to drive him to downtown Portland; that she entered Hwy. 26 toward downtown Portland but pulled off the freeway near the Zoo exit crying and laying on the horn; and that he exited her vehicle and began to walk toward downtown Portland. Morrison reported the incident several hours later to the police.
Jafari contended that he had no knife, and that he had offered her money to drive him to downtown Portland. After a voluntary search of Jafari's residence, police officers found a knife similar to the knife described by Morrison in a nightstand drawer next to Jafari's bed.
Both the prosecution and the defense agreed that Morrison drove Jafari in her car from Beaverton toward Portland on the night alleged. The issue at trial was whether Morrison voluntarily drove Jafari toward Portland or did so under compulsion.
On February 5, 1997, Jafari was convicted by a jury of the crimes of kidnaping in the second degree, unlawful use of a weapon, and menacing upon trial in the Washington County Circuit Court, Case No. C962388CR. The trial court judge sentenced Jafari to a 70-month prison term under ORS 137.700 for the kidnaping conviction, to be followed by three years of post-prison supervision. The trial court judge also sentenced Jafari to six months in jail on the menacing conviction, and to probation on the weapons conviction.
Jafari appealed from the convictions and sentences but voluntarily dismissed the appeal. Jafari then filed a petition for post-conviction relief. Jafari, represented by counsel, asserted:
[T]rial counsel failed to render effective assistance by failing to develop and present available evidence that Ms. Morrison had a bad reputation for truthfulness. A secondary but related claim is that Petitioner's trial counsel in general failed properly to investigate the case, as a result of which evidence that would have caused the jury to disbelieve Ms. Morrison's version of the events was not presented.
Respondent's Exhibit 118, p. 3. Jafari argued in the post-conviction relief case that 1) trial counsel was deficient because he should have asked Tina Atkinson, a witness at the trial, whether she had an opinion about Morrison's character or reputation for truthfulness; 2) if asked, Atkinson would have testified that Morrison's reputation for truthfulness was bad; and 3) there is a reasonable probability that, but for this unprofessional error, the jury would not have convicted Jafari.
On November 24, 1998, a trial was held before the court in the case for post-conviction relief. Jafari was represented by attorney Marc Blackman. Testimony was taken. At the close of the proceedings, further evidence was submitted by Jafari.
On January 26, 1999, the court found against Jafari in the post-conviction relief case concluding that Jafari's trial counsel properly investigated the case and exercised professional skill and judgment in diligently and conscientiously advancing his defense. Respondent's Exhibit 118. The post-conviction relief court concluded, in part:
It is not probable but rather extremely doubtful that the one question regarding reputation or character for truthfulness with Ms. Atkinson's response that it was bad would have resulted in an acquittal of the Defendant when one views the record as a whole.
The simple fact of the matter is that even when one reads the transcript associated with the jury trial, Plaintiff's credibility is completely demolished. One might argue that if perhaps the credibility of Ms. Morrison could have been destroyed in a manner such as was the credibility of the Plaintiff in the jury trial, the draw would go to the Plaintiff and he would thus be entitled to an acquittal. That is the best which can even be argued from this record. To conclude that Ms. Atkinson's testimony, if admissible, would accomplish such is doubtful, dubious and extremely unlikely. The fact of the matter is that rather than Plaintiff blaming others for his conviction, he should look to himself for lying about matters which resulted in he himself destroying whatever credibility would normally be accorded to him.
Id. at pp. 10-11.
Jafari appealed from the judgment against him in the post-conviction relief case. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review.
On July 20, 2001, Jafari filed this federal habeas corpus action under 28 U.S.C. § 2254 to attack his convictions. Jafari contends that 1) trial counsel failed to develop and present evidence undermining the credibility of the victim's story; and 2) if trial counsel had properly investigated and attacked the victim's credibility, the outcome of the trial would have been different.
Jafari moves the court for an order pursuant to Rule 6 of the Rules Governing Section 2254 Cases allowing subpoenas to compel production of the following: "(3) Any and all treatment records from Holiday Park Hospital pertaining to Laura Morrison's psychological or psychiatric condition;" and "(4) Any and all treatment records from Providence St. Vincent Medical Center pertaining to Laura Morrison's psychological or psychiatric condition." Petitioner's Motion for Subpoenas, p. 2.
Jafari contends that through investigation he has discovered significant new evidence regarding Laura Morrison's mental illness and its impact on her ability to perceive reality. Jafari relies upon a deposition taken on May 21, 1997 of Morrison in a civil case filed in state court entitled In the Matter of the Estate of Wallace Perry Morrison in which Morrison is asked about her prior treatment for mental problems or emotional problems. In this deposition, Morrison states that she was hospitalized at Holiday Park Hospital in 1988 after attempting suicide, and that she received treatment from physicians in 1991 and 1994 for manic depression. Jafari contends that he has discovered substantial new evidence demonstrating that Morrison is completely untrustworthy which was not presented at trial.
The respondent contends that petitioner Jafari is precluded by 28 U.S.C. § 2254(e)(2) from using the requested evidence to obtain an evidentiary hearing in this federal habeas corpus proceedings because he failed to develop the factual basis of this claim in the state court proceedings. The respondent asserts that Jafari should not be allowed to discover evidence which he cannot use in this proceedings.
APPLICABLE LAW
Rule 6 of the Rules Governing Section 2254 Cases allows civil discovery to habeas corpus petitioners "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Discovery under Rule 6 must be considered in light of the provisions of 28 U.S.C. § 2254(e)(2) (1994 ed., Supp. III), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, which limits the scope of federal habeas corpus review to the state court record, except in certain specified circumstances as follows:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Under Section 2254(e)(2), "failed to develop" means a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). In Williams, the Court explained:
Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. "Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.
Id. at 437 (citation omitted).
RULING OF THE COURT
Petitioner Jafari has failed to develop the factual basis of any claim in the state court proceedings that his trial counsel failed to properly investigate and impeach Morrison's credibility with her treatment records pertaining to her psychological or psychiatric condition. Jafari made no effort to obtain the requested evidence in any state court proceedings.
Jafari raised and litigated the issue of the effectiveness of trial counsel in impeaching Morrison's credibility in the state post-conviction proceedings. However, Jafari did not raise any factual claim regarding Morrison's prior treatment records pertaining to her psychological or psychiatric condition. The deposition of Morrison in an unrelated civil matter taken after the trial but before the post-conviction proceedings does not provide any newly discovered evidence that could not have been discovered prior to the conclusion of the state court proceedings. The factual predicate of the requested evidence, that is, that Morrison could be impeached with her prior treatment records, could have been raised in the state court proceedings through the exercise of due diligence. Allowing discovery on an issue which could have been raised at all times in the state court proceedings and was never raised in the state court proceedings would only serve to provide "an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Williams, 529 U.S. at 437.
There is no new rule of constitutional law which is made retroactive on collateral review involved in this case. The court is precluded by 28 U.S.C. § 2254(e)(2) from holding an evidentiary hearing on any claim made by petitioner Jafari that his trial counsel failed to properly investigate and impeach Laura Morrison's credibility with the treatment records pertaining to her psychological or psychiatric condition. Accordingly, this court concludes that there is not good cause under Rule 6 to allow discovery of the requested evidence.
IT IS HEREBY ORDERED that the petitioner's motion for subpoenas (#33) parts (3) and (4) is DENIED.