Ainsworth v. Vasquez, No. CIV-S-90-329-LKK-JFM

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: KARLTON, Emeritus, and GARCIA, SHUBB and LEVI
• Citation: 759 F. Supp. 1467
• Parties: Steven King AINSWORTH, Petitioner, v. Daniel VASQUEZ, Warden of the State Prison at San Quentin, and James Rowland, Director of the California Department of Corrections, Respondents. Darrell Keith RICH, Petitioner, v. Daniel VASQUEZ, Warden of the State Prison at San Quentin, and James Rowland, Director of the California Department of Corrections, Respondents.
• Docket Number: CIV-S-89-823-EJG-GGH.,No. CIV-S-90-329-LKK-JFM
• Decision Date: 15 March 1991

759 F. Supp. 1467

Steven King AINSWORTH, Petitioner,
v.
Daniel VASQUEZ, Warden of the State Prison at San Quentin, and James Rowland, Director of the California Department of Corrections, Respondents.
Darrell Keith RICH, Petitioner,
v.
Daniel VASQUEZ, Warden of the State Prison at San Quentin, and James Rowland, Director of the California Department of Corrections, Respondents.

Nos. CIV-S-90-329-LKK-JFM, CIV-S-89-823-EJG-GGH.

United States District Court, E.D. California.

March 15, 1991.

759 F. Supp. 1468

James S. Thomson, Sacramento, Cal., for Darrell Keith Rich.

Quin Denvir, Sacramento, Cal., for Steven King Ainsworth.

Robert Jibson, Deputy Atty. Gen., Sacramento, Cal., for respondents.

Before KARLTON, Chief Judge Emeritus, and GARCIA, SHUBB and LEVI, District Judges.

OPINION

LEVI, District Judge:

In these two death penalty habeas corpus cases, petitioners seek reconsideration of orders by the magistrate judges setting hearings that have come to be known as "Neuschafer hearings".¹ At such a hearing the magistrate judge proposes to question the petitioner concerning the existence of any unexhausted habeas corpus claims. The stated primary purpose of the hearing is to attempt to consolidate all claims in one proceeding and to avoid the piecemeal treatment of claims in multiple petitions.

759 F. Supp. 1469

Because this procedure will be at issue in many death penalty habeas corpus petitions pending in this court, the court has elected to determine the matter en banc.² For the reasons discussed below, the orders of the magistrate judges setting such hearings are affirmed

I. STANDARD OF REVIEW

The district court reviews orders by a magistrate judge regarding non-dispositive matters under the "clearly erroneous or contrary to law" standard set forth in 28 U.S.C. 636(b)(1)(A). See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980); United States v. Peacock, 761 F.2d 1313 (9th Cir.1985). Local Rule 304(f) provides that motions to the district court seeking reconsideration of a magistrate judge's order are also reviewed on the "clearly erroneous or contrary to law" standard. Thus the question before the court is not whether the proposed hearing is necessary or even, in our judgment, beneficial to the management of these cases, but rather whether the holding of such a hearing is clearly erroneous or contrary to law.

II. THE MAGISTRATE JUDGES' ORDERS

A. Procedural Background

On March 16, 1990, petitioner Steven King Ainsworth filed a petition for writ of habeas corpus in this court, together with an emergency application for a stay of his execution, then scheduled for April 6, 1990. The petition is Ainsworth's first in federal court, and he asserts that he has exhausted state remedies as to all claims presented therein. Petition for Writ of Habeas Corpus, at 4-5. On March 22, 1990, the court granted Ainsworth's application for a stay of execution, pursuant to Local Rule 191(h)(1).³ On July 27, 1990, the magistrate judge issued an order setting a Neuschafer hearing. On September 6, 1990, petitioner Ainsworth filed an objection to the proposed hearing. On September 27, 1990, the magistrate judge overruled petitioner's objection. On October 2, 1990, petitioner filed the instant request for reconsideration by the District Court of the magistrate judge's ruling.

On June 8, 1989, petitioner Darrell Keith Rich filed a request for appointment of counsel and for a stay of his execution in the United States District Court for the Northern District of California. On June 8, 1989, that court stayed petitioner Rich's execution then scheduled for June 16, 1989, and transferred the action to this court. On August 25, 1989, the magistrate judge granted petitioner's request for appointment of counsel. On August 7, 1990, the magistrate judge set a Neuschafer hearing. On August 15, 1990, petitioner Rich filed an objection to the proposed hearing. On August 17, 1990, the magistrate judge overruled petitioner's objections. On September 17, 1990, petitioner Rich filed the instant request for reconsideration by the District Court of the magistrate judge's order setting the Neuschafer hearing. On September 28, 1990, petitioner Rich filed a petition for writ of habeas corpus and for a stay of execution, then scheduled for October 12, 1990.

On November 19, 1990, this court entered an order finding that a uniform response to the issues tendered by the magistrate judges' orders would best serve the litigants' and the district's interests. The order transferred both Ainsworth, and Rich, to the active judges of the Sacramento

759 F. Supp. 1470

Division of this court, sitting en banc, solely to hear and dispose of the motions seeking reconsideration of the magistrate judges' orders setting Neuschafer hearings. On December 4, 1990, the court remanded both cases to allow the magistrate judges an opportunity to state their reasons for ordering the proposed hearings. These memoranda were filed on December 7, 1990

B. Neuschafer and the Proposed Hearings

The orders we are asked to reconsider set hearings "to inquire into the existence of all exhausted and unexhausted claims as suggested in Judge Alarcon's concurrence in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988)." Ainsworth, No. CIV. S-90-329, at 2 (E.D.Cal. July 29, 1990) (order setting hearing).

In Neuschafer, having attempted unsuccessfully to obtain a stay in state court, the petitioner filed an initial federal habeas petition just days before his scheduled execution date. In granting a stay of execution, the district court instructed the petitioner to raise all known claims and permitted him to file a supplemental petition. The supplemental petition included only claims that had been exhausted in state proceedings. This petition eventually was denied. A second execution date then was set, and the evening before his execution, Neuschafer filed a second federal habeas petition raising several new grounds. The district court granted a stay of execution, and held a hearing to determine whether Neuschafer's second petition constituted an abuse of the writ. The district court determined that Neuschafer had earlier made a conscious decision to deliberately withhold known unexhausted grounds from his first federal habeas petition because he feared that it would have been dismissed for failure to exhaust state remedies. The district court concluded that as a matter of law, "the fact that the present claims were unexhausted at the time of the first federal habeas petition does not constitute a defense against abuse of the writ charges," and dismissed the petition. Neuschafer v. Whitley, 674 F.Supp. 1418, 1425 (D.Nev. 1987). Neuschafer appealed.

The Ninth Circuit reversed, holding that: Neuschafer's claim that he did not bring the claims in his first federal petition because they were unexhausted and barred by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) precludes a finding that he deliberately withheld those claims from his first federal petition and thereby abused the writ when he brought them in a second federal petition.

Neuschafer, 860 F.2d at 1476 (emphasis in original).

In a concurring opinion, Judge Alarcon sought to dispel the fear that the court's ruling necessarily would permit petitioners to exhaust their claims one by one in state court and then bring successive habeas petitions in federal court. An abuse of the writ might still be found "if the record shows that the petitioner was not acting in good faith or was deliberately seeking to present his claims in a piecemeal fashion." 860 F.2d at 1480. Judge Alarcon further suggested a specific procedure by which district courts should "flush out" unexhausted claims by (1) directing petitioner's counsel to review the record and to inform the court whether any claims remained unexhausted, and (2) giving petitioner a choice of either abandoning unexhausted claims or holding the federal proceedings in abeyance until state remedies were exhausted. Id. at 1482. Judge Alarcon suggested that this procedure should be followed in cases "where a petitioner is compelled to file a habeas petition alleging exhausted claims at the eleventh hour, because the state court has refused to grant counsel sufficient time to exhaust all claims in state court." Id.

In the cases now before the court the magistrate judges have adopted, with modification, the approach suggested by Judge Alarcon's concurring opinion. The orders at issue here direct that the petitioner and counsel for both parties attend a hearing at which the magistrate judge will question the petitioner concerning his petition. The orders provide that portions of the hearings

759 F. Supp. 1471

may be held ex parte if necessary to protect privileged communications or privileged attorney work product. The orders instruct petitioners' counsel to meet with their clients prior to the hearing, and to ensure that their clients are aware of the petition's contents. The orders set forth the general types of questions the court will ask of the petitioners.⁴ Finally, the orders invite the parties to suggest modifications to the procedure set forth therein

The proposed hearings are intended to serve two primary goals of this court in managing capital habeas corpus cases: "to ensure that petitioner is well represented in a full and fair hearing of all his federally cognizable claims and, second, to see to it that all of petitioner's claims, except those which may be truly discovered late, are contained in the first petition for habeas corpus." Ainsworth, No. CIV.S-90-329, at 1-2 (December 7, 1990) (memorandum regarding reasons for setting hearing).

The magistrate judges set forth several additional reasons for the proposed hearing in memoranda explaining their intention in holding this type of hearing. First, the hearing would help illuminate latent problems concerning possible unexhausted claims at an early stage...