Christian v. Bissen, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TARYN CHRISTIAN,
Plaintiff,
vs.
IWALANI WHITE, ETC., ET AL.,
Defendants.
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CIVIL NO. 04-00743 DAE-LEK
ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S
MOTION TO CONTINUE DISCOVERY DATES AND TO COMPEL
DISCOVERY AND SETTING SCHEDULE FOR EVIDENTIARY HEARING
Before the Court is Petitioner Taryn Christian’s
(“Petitioner”) Motion to Continue Discovery Dates and to Compel
Discovery (“Motion”), filed on February 28, 2008. 	Respondents
Iwalani D. White, Interim Director, and the State of Hawaii
Department of Public Safety (collectively “Respondents”) filed
their memorandum in opposition on March 14, 2008 and Petitioner
filed his reply on March 21, 2008. 	This matter came on for
hearing on April 2, 2008. 	Appearing on behalf of Petitioner were
Mark Barrett, Esq., by telephone, and Keith Shigetomi, Esq.
Appearing on behalf of Respondent was Peter Hanano, Esq. 	After
careful consideration of the Motion, supporting and opposing
memoranda, and the arguments of counsel, Petitioner’s Motion is
HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set
forth below.
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BACKGROUND
The instant case arises from Petitioner’s 1997
conviction of one count of murder in the first degree for the
death of Vilmar Cabaccang and one count of theft in the third
degree. 	Petitioner was sentenced to life in prison. 	Christian
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (“Petition”) on December 22, 2004.
The Petition raises the following grounds for habeas
relief: 1) deprivation of Petitioner’s right to testify on his
own behalf (“Ground One”); 2) improper exclusion of James
Burkhart’s confessions (“Ground Two”); 3) ineffective assistance
of trial counsel based on various actions and omissions by
counsel (“Ground Three”); 4) actual innocence (“Ground Four”); 5)
admission of improper identification evidence (“Ground Five”); 6)
admission of false and/or misleading evidence (“Ground Six”); 7)
ineffective assistance of appellate counsel (“Ground Seven”); 8)
ineffective assistance of trial counsel regarding counsel’s
advice about his right to testify (“Ground Eight”); and 9)
whether the prosecution suppressed or destroyed exculpatory
evidence by returning Cabaccang’s vehicle to his family before
the defense had the opportunity to examine it (“Ground Nine”).
[Mem. in Supp. of Petition at I-ii; 5/1/07 Order & Recommendation
at 5.]
On May 1, 2007, this Court issued its Order Granting
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Petitioner’s Motion for Leave to Conduct Discovery and Findings
and Recommendation Regarding Petition for Writ of Habeas Corpus
(“5/1/07 Order & Recommendation”). 	This Court found that:
Ground One, Ground Two, and Ground Seven of the
Petition are exhausted; Ground Four, Ground Five,
Ground Six, Ground Eight, and Ground Nine are
technically exhausted, but are procedurally
defaulted; and Ground Three is partially
exhausted, but the claim in Ground Three that is
technically exhausted is also procedurally
defaulted.
[5/1/07 Order & Recommendation at 2.] 	The Court also granted
Petitioner’s motion to conduct discovery, finding that he “has
established good cause to conduct limited discovery to support
his actual innocence argument.” 	[Id. at 61 (citing Rule 6(a), 28
U.S.C. foll. § 2254).]
Respondents appealed the 5/1/07 Order & Recommendation
to the district judge. 	On September 12, 2007, the district judge
issued an order granting Respondent’s appeal in part and denying
it in part (“9/12/07 Appeal Order”). 	The district judge affirmed
this Court’s decision regarding Counts Three and Seven and
vacated this Court’s decision regarding Count Eight. 	The
district judge also affirmed the decision to permit discovery on
Petitioner’s exhausted claims that are based on newly discovered
evidence.
On September 21, 2007, this Court issued an Initial
Discovery Order, setting forth the terms of discovery in this
case. 	On December 27, 2007, this Court issued an EO establishing
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the following deadlines: “Discovery shall be completed by
February 28, 2008, Petitioner’s expert report(s) shall be filed
by no later than March 27, 2008 and Respondent’s expert report(s)
shall be filed by no later than April 24, 2008. 	A motion for
evidentiary hearing shall be filed by no later than March 13,
2008.”
In the instant Motion, Petitioner asks the Court to
move the discovery deadline to the latter of: 1) March 27, 2008,
or 2) thirty days after Respondents provide additional physical
evidence. 	Petitioner also seeks an order compelling Respondents
to produce a number of items. 	Finally, in his reply, Petitioner
requests permission to have an additional expert, Ken Glaza of
Southfield, Michigan, analyze the videotapes.
DISCUSSION
I. 	Principles Governing Habeas Discovery
Unlike civil litigants, a habeas petitioner is not
presumptively entitled to discovery. 	See Rich v. Calderon, 187
F.3d 1064, 1068 (9th Cir. 1999). 	The Ninth Circuit has stated:
“Habeas is an important safeguard whose goal is to correct real
and obvious wrongs. 	It was never meant to be a fishing
expedition for habeas petitioners to explore their case in search
of its existence.” 	Id. at 1067. 	Rule 6(a) of the Rules
Governing Section 2254 Cases in the United States District Courts
provides, in pertinent part: “A judge may, for good cause,
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authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery.” 	The
United States Supreme Court has held that, pursuant to Rule 6(a),
the scope and extent of habeas discovery is within the discretion
of the district court. 	See Bracy v. Gramley, 520 U.S. 899, 909
(1997).
II. 	Petitioner’s Request
A. 	DNA Testing
1. 	Cap and jacket
Petitioner states that his expert, Brian Wraxall of the
Serological Research Institute in Richmond, California (“SRI”),
was not able to complete the DNA testing of the items currently
in his possession by the discovery deadline because he was
recently treated for cancer and has encountered unanticipated
difficulties in catching up on his work. 	In addition, although
Mr. Wraxall did not initially plan on testing the cap, he later
decided to do so. 	Mr. Wraxall represented to Petitioner’s
counsel that he could complete testing on the items in his
possession by March 27, 2008.
In light of Mr. Wraxall’s health problems, the Court
GRANTS Petitioner’s request to extend the deadline for his expert
report. 	Petitioner shall disclose Mr. Wraxall’s report regarding
all items currently in SRI’s possession, including the cap and
jacket, by May 9, 2008. 	Petitioner shall also ensure that the
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cap and jacket are returned to Respondents, according to the
procedures set forth in this Court’s Initial Discovery Order, by
May 9, 2008.
Respondents must, within two weeks after receiving
Mr. Wraxall’s report, i.e. no later than May 23, 2008, but
earlier if Petitioner discloses the report prior to May 9, file a
written notice whether they will conduct their own testing on the
cap and jacket. 	The notice shall include the name and contact
information of the person who will perform the tests. 	If
Respondents do conduct their own testing, they must complete the
testing and submit the report to Petitioner by July 9, 2008. 	If
Respondents believe that they cannot complete the report by that
date, Respondents’ counsel should meet and confer with
Petitioner’s counsel. 	If the parties reach an agreement
regarding an extension, Respondents shall submit a stipulation to
this Court for approval. 	If the parties are unable to reach an
agreement, Respondents must file a motion for an extension.
Respondents shall either submit the parties’ stipulation or file
their motion for an extension by June 6, 2008.
2. 	Knife sheath
This Court’s Initial Discovery Order identifies the
knife used to kill Vilmar Cabaccang as one of the items to be
sent to SRI for DNA testing. 	On January 29, 2008, Petitioner’s
counsel requested that Respondents send the knife sheath to SRI
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for possible further examination. 	Respondents state that, if the
Court is inclined to permit further discovery, they do not object
to the testing of the knife sheath, as long as the Court imposes
strict time limitations. 	Insofar as the testing of the knife
sheath is a reasonable extension of the Initial Discovery Order,
the Court GRANTS Petitioner’s request and ORDERS Respondents to
send the knife sheath to SRI, according to procedures set forth
in the Initial Discovery Order, by April 17, 2008.
3. 	Swabs
Petitioner seeks an order compelling Respondents to
produce swabs connected with this case which are currently in the
possession of the Maui Police Department (“MPD”). 	Petitioner
also requests background information about the swabs. 	Petitioner
states that he did not include these swabs in his prior discovery
request because he did not become aware of them until counsel
viewed the evidence held at the MPD. 	Respondents believe that
all swabs connected with this case were sent to SRI for testing.
The Court will reserve ruling on Petitioner’s request
to compel the production of additional swabs until the parties
submit further information. 	The Court ORDERS Respondents to
inspect the evidence still in the possession of the MPD and
determine if there are still swabs relating to this case. 	The
Court further ORDERS Respondents to file a declaration or
affidavit, by a person with personal knowledge, setting forth the
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results of the inspection by April 10, 2008. 	If such additional
swabs do exist, the declaration or affidavit shall include a
description of the swabs. 	Petitioner shall then have until
April 17, 2008 to file an affidavit or declaration informing the
Court whether he wishes to have the additional swabs sent to SRI
for evaluation and, if so, what the basis of the request is. 	The
Court will issue a ruling on Plaintiff’s request thereafter.
B. 	Gas Express Videotapes
The Initial Discovery Order required Respondents to
provide Petitioner with copies of the relevant videotapes from
Gas Express. 	In the instant Motion, Petitioner states that the
copies are of such poor quality that the features of the persons
on the tape are indiscernible. 	Petitioner seeks an order
compelling Respondents to produce the originals to Petitioner’s
expert, Jack Mitchell of Albuquerque, New Mexico. 	Respondents do
not object to this request, as long as the Court imposes strict
time limitations. 	The Court therefore GRANTS Petitioner’s Motion
with regard to the three original Gas Express videotapes and
ORDERS Respondents to send the tapes to Petitioner’s local
counsel by April 17, 2008.
In his reply, Petitioner requested leave to have an
additional expert, Ken Glaza of Southfield, Michigan, analyze the
videotapes. 	Petitioner’s request is STRICKEN because he failed
to raise it in the Motion. 	See Local Rule LR7.4 (“Any arguments
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raised for the first time in the reply shall be disregarded.”).
C. 	Witnesses’ Statements
Petitioner seeks an order compelling the production of
additional audiotapes of witnesses’ statements which have not
been produced. 	He also notes that he has only received the
transcript of Serena Seidel’s statement; he has not received the
transcripts of Phil Schmidt’s or Tesha Santana’s statements.
Respondents believe that there are no additional audio recordings
of the witnesses’ statements. 	The Court finds that Petitioner is
entitled to the transcripts of Schmidt’s and Santana’s statements
and GRANTS the Motion with regarding thereto. 	The Court ORDERS
Respondents to produce the transcripts of Schmidt’s and Santana’s
statements by April 17, 2008.
D. 	Other Prior Discovery Requests
Respondents represent that all of the items identified
in the Motion which Petitioner sought in prior discovery requests
do not exist. 	With the exception of the swabs addressed infra,
the Court ORDERS Respondents to file a declaration or affidavit
addressing these requests by April 17, 2008. 	The declaration or
affidavit must be written by a person with knowledge, and should
state that a good faith search was made for the items, including
any audiotapes of witnesses’ statements, and that none were
found. 	If Respondents determine that additional responsive items
exist, the affidavit or declaration shall list and describe the
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items. 	Petitioner can thereafter determine whether to renew a
motion to compel.
III. Extension of Deadlines
The Court GRANTS Petitioner’s request to extend the
discovery related deadlines. 	All discovery shall be completed by
August 6, 2008. 	The parties’ supplemental witness lists shall
also be due on August 6, 2008. 	Except as previously set forth
herein, Petitioner’s expert witness reports are due by June 6,
2008, and Respondents’ expert witness reports are due by July 18,
2008.
IV. 	Evidentiary Hearing
The district judge’s 9/12/07 Appeal Order states:
As the Magistrate Judge’s ruling concerning
discovery stands, the Court will conduct an
evidentiary hearing after Petitioner has had
sufficient time to conduct discovery, pursuant to
the Magistrate Judge’s recommendation. 	Once
discovery is complete, Petitioner must file a
motion requesting an evidentiary hearing on his
allegations based on newly discovered evidence
that are exhausted and not procedurally defaulted,
after which a hearing date will be set.
[9/12/07 Appeal Order at 28.] 	On March 13, 2008, Petitioner
filed a Motion for Evidentiary Hearing, based on the discovery
completed to that point. 	The district judge designated this
Court to conduct the evidentiary hearing.
This Court will conduct the evidentiary hearing on
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1 The Court notes that it discussed a different hearing date
at the status conference, but the Court has rescheduled the
hearing at the request of the district judge.
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Monday, August 18, 2008 at 9:00 a.m.1 	The parties are instructed
to present all direct testimony by declaration or affidavit, with
any exhibits, by July 18, 2008, and to have their witnesses
available for cross-examination and limited re-direct examination
at the evidentiary hearing. 	Petitioner’s opening brief is due by
July 18, 2008, and Respondents’ response is due by July 31, 2008.
There will be no reply.
CONCLUSION
On the basis of the foregoing, Petitioner’s Motion to
Continue Discovery Dates and to Compel Discovery, filed on
February 28, 2008, is HEREBY GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED as set forth in this order and the Motion
is DENIED as to all other requests not specifically addressed
herein.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 3, 2008.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States Magistrate Judge
TARYN CHRISTIAN V. IWALANI WHITE, ETC., ET AL; CIVIL NO. 04-00743
DAE-LEK; ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S
MOTION TO CONTINUE DISCOVERY DATES AND TO COMPEL DISCOVERY AND
SETTING SCHEDULE FOR EVIDENTIARY HEARING
Case 1:04-cv-00743-MWJS-RT Document 101 Filed 04/04/08 Page 11 of 11
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