Gordon v. Vasquez

• Decision Date: 25 July 1994
• Docket Number: No. Civ. S-91-882 LKK/PAN.,Civ. S-91-882 LKK/PAN.
• Citation: 859 F. Supp. 413
• Court: U.S. District Court — Eastern District of California
• Parties: Patrick Bruce GORDON, Petitioner, v. Daniel VASQUEZ, Warden, and Daniel Lungren, Attorney General of the State of California, Respondents.

859 F. Supp. 413

Patrick Bruce GORDON, Petitioner, v. Daniel VASQUEZ, Warden, and Daniel Lungren, Attorney General of the State of California, Respondents.

No. Civ. S-91-882 LKK/PAN.

United States District Court, E.D. California.

July 25, 1994.

Malcolm S. Segal, James R. Kirby II, Segal & Kirby, Sacramento, CA, for petitioner.

Ward A. Campbell, William George Prahl California Atty. Gen., Sacramento, CA, for respondent.

ORDER

KARLTON, Chief Judge Emeritus.

Petitioner, a state prisoner condemned to death, filed pro se a petition for habeas corpus. The matter was referred to a magistrate judge, see 28 U.S.C. § 636(b)(1), Local Rules 302(c)(17), 303, 304, who granted permission to proceed in forma pauperis, stayed the execution, and initiated the process of obtaining counsel for petitioner. See Local Rule 191(d), (h)(2).¹ In due course, counsel were appointed to represent petitioner and, after filing an amended petition, they moved for investigative and expert funds. The magistrate judge could not determine whether petitioner's claims had been exhausted and apparently for that reason denied the request.

Petitioner's second request for investigative funds was also denied, this time specifically on the basis that the petition contained unexhausted claims. Shortly thereafter, the magistrate judge formally found that the petition contained unexhausted claims and recommended that these proceedings be stayed pursuant to Local Rule 191(h)(5).² The recommendation relative to a stay was adopted by this court.

Petitioner, through his federally appointed attorneys, then applied to the California Supreme Court for appointment to pursue his state remedies and requested funds from that court to investigate potential habeas issues. Although counsel were appointed, the request for funds was denied. Thereupon counsel for petitioner reapplied to this court for funds for investigation. The magistrate judge summarily denied the request, stating:

Petitioner has requested funds to investigate habeas corpus issues. This proceeding is presently stayed pending the completion of proceedings in the California Supreme Court. E.D.Cal., L.R. 191(h)(5); Order May 5, 1993. Accordingly, it is ORDERED that petitioner's request for investigative funds, filed June 28, 1993, is denied.

Order filed June 29, 1993.

Petitioner then sought reconsideration from this court, arguing that the magistrate judge's order was contrary to law. He contends that 21 U.S.C. § 848(q) mandates authorization of investigative funds upon a finding that a request is reasonably necessary for the representation of federal death penalty habeas petitioners, notwithstanding the fact that the funds are for the express purpose of investigating facts on unexhausted claims to be presented to a state court.

This court ordered further briefing on the issue from both petitioner and the Attorney General of the State of California. Thereafter, I concluded that the order directed to the Attorney General was inappropriate since, under the statute, consideration of the request for investigative fees is an ex parte proceeding, which has been interpreted to mean an in camera proceeding. See 21 U.S.C. § 848(q)(9); Lawson v. Dixon, 3 F.3d 743, 751 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1208, 127 L.Ed.2d 556 (1994) (the plain language of 21 U.S.C. § 848(q)(9) providing for ex parte proceedings should not be overlooked simply because the court prefers all such motions to be handled on the record); Guide to Judiciary Policies and Procedures, Vol. VII, § 3.03 (ex parte application shall be heard in camera).³ But see McKinney v. Paskett, 753 F.Supp. 861, 863 (D.Idaho 1990) (petitioner required to show specifically the reason why services are necessary before being allowed an ex parte hearing).

Because I had concluded that the State was not an interested party, I ordered its briefing and its appearance relative to the Motion to Reconsider stricken. For the same reason, the court's resolution of the issue was ordered sealed. The matter was then remanded to the magistrate judge for further proceedings consistent with the court's sealed opinion.

Upon return to the magistrate judge, the State moved, inter alia, for a recommendation to this court for interlocutory appeal of the order striking the State's appearance and sealing the order disposing of the motion. Instead, the magistrate judge has filed Findings and Recommendations that the order be unsealed. He suggests that while the amount and use of funds must be considered ex parte, the fact that funds are sought and a determination relative to such a request need not be held in confidence. The court is satisfied that the distinction drawn by the magistrate judge is sensible. The court also notes that since its decision, the United States Supreme Court has issued its opinion in McFarland v. Scott, Director, Texas Dep't of Criminal Justice, Institutional Div., ___ U.S. ___, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), which indirectly sheds some light on the issues resolved by the court. Given the magistrate judge's recommendation and the decision in McFarland, the court will issue a new, public and slightly revised opinion in this matter.

I STANDARD OF REVIEW

Because federal habeas proceedings are civil in nature,⁴ the power of the district court to refer matters for review by a magistrate judge is quite broad. Thus, a district court judge may designate a magistrate judge to hear and determine any non-dispositive pretrial matters brought by a person seeking habeas relief, see 28 U.S.C. § 636(b)(1)(A); Local Rule 302(c)(17), and may refer dispositive motions for Findings and Recommendations. 28 U.S.C. § 636(b)(1)(B); Local Rule 302(a) & (c)(17). The standard employed by the district court in reviewing decisions of the magistrate judge depends upon the character of the underlying decision.

Non-dispositive pretrial motions referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) are reviewed under a clearly erroneous or contrary to law standard. See 28 U.S.C. § 636(b)(1)(A); Local Rule 303(f); United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). On the other hand, a magistrate judge's determination concerning matters referred pursuant to 28 U.S.C. § 636(b)(1)(B) are for the most part reviewed de novo. Thus, the district court reviews de novo those portions of the proposed findings of fact to which objection has been made, 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982), and the magistrate's conclusions of law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989), citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). The court may, however, assume the correctness of that portion of the proposed findings of fact to which no objection has been made and decide the motion on the applicable law. See United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989), citing Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979).⁵

The court is not bound to adopt the magistrate's Findings and Recommendations; on the contrary, the court must exercise "sound judicial discretion" in making its own determination on the record. Raddatz, 447 U.S. at 675-76, 100 S.Ct. at 2412. The court may accept, reject, or modify, in whole or in part, the magistrate's findings or recommendations. 28 U.S.C. § 636(b)(1)(C); Remsing, 874 F.2d at 617.

In the matter at bar, petitioner seeks review of the magistrate judge's denial of fees, a non-dispositive pretrial order. Accordingly, the court employs the "clearly erroneous or contrary to law" standard of review. Where, as here, there are no disputed issues of fact and the question before the court is thus purely legal in nature, the standards of review under 28 U.S.C. § 636(b)(1)(A) and 28 U.S.C. § 636(b)(1)(C) converge. That is, under either standard of review, the court must determine whether the magistrate judge's conclusions of law are right or wrong.

II THE RIGHT TO INVESTIGATIVE FUNDS

The magistrate judge's denial of the requested funds in this case relied exclusively on the fact that, pursuant to Local Rule 191(h)(5), a stay had issued to permit the exhaustion of state claims. Because of the cryptic nature of the order, it is unclear why the existence of a stay was viewed as precluding the granting of fees. Since the magistrate judge apparently did not consider the merits of the request, however, I must conclude that he thought it was improper to do so. As I explain below, two possible procedural and one possible substantive reason present themselves as justifications for such a conclusion. I consider each reason seriatim.

A. Stays

One possible reason that the magistrate judge might conclude that he should not entertain a motion for investigative fees is because this court had entered the stay in effect at the time the motion was made. See Reynaga v. Cammisa, 971 F.2d 414, 416-17 (9th Cir.1992) (magistrate judge lacked authority to enter stay in habeas case). If that was his reasoning, the magistrate judge, upon denying the motion, should have explained that it should be directed to the district court. Be that as it may, by virtue of the motion to reconsider the matter is now before this court subject to the court's further order, and thus the stay is no impediment to ordering fees if it is otherwise appropriate.

The purpose of issuing a stay of a federal court action rather than dismissing it in favor of state court proceedings is to protect a litigant's federal rights during the pendency of the state court proceedings. See, e.g., Attwood v. Mendocino Coast Dist. Hospital, 886 F.2d 241, 243 (9th Cir.1989) (purpose of doctrine is to ensure federal forum remains open if the state forum proves to be inadequate); and see Annotation, Stay of Action in Federal Court Until...