McKinney v. Paskett

• Decision Date: 06 December 1990
• Docket Number: Civ. No. 89-1182.
• Citation: 753 F. Supp. 861
• Parties: Randy Lynn McKINNEY, Petitioner, v. David PASKETT, Warden, et al., Respondents.
• Court: U.S. District Court — District of Idaho

753 F. Supp. 861

Randy Lynn McKINNEY, Petitioner, v. David PASKETT, Warden, et al., Respondents.

Civ. No. 89-1182.

United States District Court, D. Idaho.

December 6, 1990.

Joan M. Fisher, Kenneth S. Gallant, University of Idaho, College of Law, Legal Aid Clinic, Moscow, Idaho, for petitioner.

Jim Jones, Atty. Gen., State of Idaho, Lynn E. Thomas, Sol. Gen., Boise, Idaho, for respondents.

MEMORANDUM OPINION AND ORDER

RYAN, Chief Judge.

On November 20, 1990, the court conducted a hearing on all pending motions in the above-entitled proceeding in the courtroom at the Idaho Maximum Security Institution, Boise, Idaho. All parties were represented by respective counsel and the petitioner was present, whereupon the court heard counsel's arguments, at length, upon each respective motion. Following argument, the court ruled and articulated in summary its reasons in respect to each motion. The parties were further advised the court would follow up with this written memorandum opinion and order.

I. DISCUSSION

A. MOTION FOR AN EX PARTE HEARING ON PETITIONER'S ENTITLEMENT TO INVESTIGATIVE AND EXPERT SERVICES

On October 3, 1989, petitioner filed an Ex Parte Motion for Authority to Obtain Expert and Investigative Services Pursuant to 21 U.S.C. § 848(q)(4), (9) and (10). In a hearing on September 13, 1990, the court requested supplemental briefing on the matter of whether petitioner was entitled to make his request for expert and investigative services on an ex parte basis and without notice to the respondent. Both parties responded with legal memoranda, and the court also heard oral argument on the motion from both parties.

Petitioner's argument is grounded in two subsections of 21 U.S.C. § 848(q), which, as part of the Anti-Drug Abuse Act of 1988, were newly added to the Controlled Substances Act. Subsection 848(q)(4)(B) provides that, "in any post-conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant ... shall be entitled to ... the furnishing of ... services in accordance with paragraphs (5), (6), (7), (8), and (9)." 21 U.S.C.S. § 848(q)(4)(B) (Law. Co-op.1984 & Supp.1990). Subsection 848(q)(9) states that, "upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize ... such ... services...." Id. § 848(q)(9).

Petitioner asserts that, taken together, these subsections mandate an ex parte hearing in habeas cases on the issue of a petitioner's need for investigative and expert services. It is important to note that it is not petitioner's entitlement to such services that is being argued here, but his belief that he must be allowed an ex parte hearing in order to explain to the court why he needs such services.

There is a paucity of case law on the relatively new statutes which form the Anti-Drug Abuse Act, and this issue has apparently not been dealt with in a reported case. We are, therefore, faced with an issue of statutory interpretation. The court's task when interpreting a federal statute is to ascertain the intent of Congress and to give effect to that intent. Foxgord v. Hischemoeller, 820 F.2d 1030, 1032 (9th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 502 (1987). The first step of any district court in resolving a matter turning on statutory construction is to determine if there is binding authority construing the statute. Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982). If not, the court must undertake its own effort to discover the statute's meaning.

The court first notes that the language in subsection 848(q) which refers to the ex parte hearing is nearly identical to a provision in the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), which allows expert or investigative services at government expense for defendants charged with federal crimes as long as, in an "ex parte hearing," the federal court is convinced of the necessity for the services. This provision of the Criminal Justice Act was obviously intended to allow the same degree of confidentiality to an indigent criminal defendant who must request government funds to conduct an adequate defense as that provided to a defendant who could pay for his own defense. Comparing this section of the Criminal Justice Act to the very similar language regarding "experts and investigators" in subsection 848(q)(9), it is clear that subsection 848(q)(9) was drafted to provide the same protection to the defense of federal defendants accused of drug crimes.

However, the court notes that the language of neither 18 U.S.C. § 3006A(e)(1) nor 21 U.S.C. § 848(q) mandates an ex parte hearing whenever a judge receives a request for investigative services. To avoid delay and the potential waste of judicial resources, defendants requesting services under Section 3006A have been required to show specifically the reasons why such services are necessary before being allowed an ex parte hearing. See, e.g., United States v. Goodwin, 770 F.2d 631, 634 (7th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 858, 88 L.Ed.2d 897 (1986) (ex parte proceeding not required where defendant's request failed to indicate why an investigator was necessary, what investigator would do, and why attorney could not perform the investigative work needed).

Additionally, the court notes the difficulty in ascertaining how Congress intended the provisions of this criminal statute, 21 U.S.C. § 848(q), to be applied in civil habeas corpus cases where the proceedings are normally conducted not under the Federal Rules of Criminal Procedure, but under the Rules Governing Habeas Cases in Federal District Courts and the Federal Rules of Civil Procedure. For example, generally in this court, when an indigent petitioner in a habeas case seeks expert or investigative services, his request would be included with his discovery request. Under Rule 6(a) of the habeas rules, a petitioner must make a showing of good cause before the court will allow discovery. The respondent is allowed to argue whether good cause exists, and the decision whether to allow discovery is at the court's discretion. The burden is on the petitioner to make an adequate showing of good cause. Petitioner now asks us to read the language of subsection 848(q) to overrule this time-honored habeas procedure. Petitioner contends that subsection 848(q) creates a new rule for habeas cases—one which would require an ex parte hearing on any request for investigative or expert services, a hearing held without notice to the respondent and without any chance for the respondent to comment on the adequacy of the petitioner's showing of good cause for the services. The petitioner in this civil proceeding seeks unilateral in camera secrecy. This clearly flies in conflict with the habeas rules, and with the rules of civil procedure which allow ex parte hearings only in emergency matters.

The court believes that petitioner is reading the language of subsection 848(q) far too narrowly. Petitioner's claim that he is entitled to identical protections as those statutorily provided for federal criminal defendants suffers from a fundamental flaw. The problem with petitioner's argument is that the petitioner is not the defendant in a criminal proceeding against him, but is instead in the role of the plaintiff in a civil proceeding—a petition for a writ of habeas corpus.

The long history of habeas cases clearly establishes habeas as a civil proceeding. The attempted engrafting of the criminal protections set out in subsection 848(q) into what is still a civil proceeding cannot be successful. While a defendant's right to keep his defense to himself is clear in criminal matters, it is not so clear in habeas. Petitioner has already had a trial and a post-conviction hearing. What, exactly, does petitioner have here to be kept secret from the respondent, and to what end? By definition in a habeas case, all the issues before us have already been raised in state court. For all these reasons, the court determines that petitioner's request for an ex parte hearing on his entitlement to investigative and expert services must be denied. The court reiterates, however, that this is not intended to be a denial of the petitioner's need for these services. Should petitioner present the court with a request for these services which indicates why they are necessary, and allows the respondent to comment on petitioner's request, the court will examine petitioner's request for the requisite showing of good cause.

B. MOTION TO STAY FURTHER FEDERAL HABEAS PROCEEDINGS PENDING EXHAUSTION OF STATE REMEDIES

Petitioner has filed a motion asking this court to stay these federal proceedings in abeyance while he returns to the state courts to exhaust several newly discovered claims. He would then return to this court to file an amended petition containing these newly exhausted claims. He contends that this is the preferred procedure in federal court under Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir.1988), cert. denied, ___ U.S. ____, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989).

Unfortunately, this court cannot grant petitioner's request for a stay while he returns to state court because petitioner will not be allowed to present his newly discovered claims in state court. An Idaho statute, Idaho Code § 19-2719, provides that in capital cases a prisoner must raise all his collateral attacks in one petition. Failure to raise all issues in the first petition will be deemed a waiver of the new issues. The constitutionality of this statute has been affirmed by the Idaho Supreme Court. State v. Beam, 115 Idaho 208, 213, 766 P.2d 678, 683 (1988), cert. denied, 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989); State v. Fetterly, 115 Idaho 231, 236, 766 P.2d 701, 706 (1988), cert....