Christian v. Bissen, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TARYN CHRISTIAN,
Petitioner,
vs.
CLAYTON FRANK, Director,
State of Hawaii, Department
of Public Safety,
Respondent.
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CIVIL NO. 04-00743 DAE-LEK
ORDER GRANTING PETITIONER’S MOTION FOR
ORDER REGARDING DISPOSITION OF DISCOVERY MATERIAL
Before the Court is Petitioner Taryn Christian’s
(“Petitioner”) Motion for Order Regarding Disposition of
Discovery Material (“Motion”), filed on December 16, 2010.
Respondent Clayton A. Frank, Director, State of Hawai`i
Department of Public Safety (“Respondent”) filed his objection to
the Motion on December 17, 2010. 	This matter came on for hearing
on February 2, 2010. 	Appearing on behalf of Petitioner were
Mark Barrett, Esq., by telephone, and Keith Shigetomi, Esq., and
appearing on behalf of Respondent were Richard Minatoya, Esq.,
and Peter Hanano, Esq. 	After careful consideration of the
Motion, supporting and opposing documents, and the arguments of
counsel, Petitioner’s Motion is HEREBY GRANTED for the reasons
set forth below.
BACKGROUND
In 1997, Petitioner was convicted of, inter alia, one
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1 The Court will refer to these sections as the “Disclosure
Requirements”.
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count of murder in the first degree. 	Petitioner filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(“Petition”) on December 22, 2004. 	On May 1, 2007, this Court
issued an order granting Petitioner leave to conduct discovery on
the exhausted claims in the Petition. 	[Dkt. no. 73.] 	This Court
issued an Initial Discovery Order on September 21, 2007, setting
forth the terms and limitations of Petitioner’s discovery. 	[Dkt.
no. 81.] 	The Initial Discovery Order states, in pertinent part:
A. 	All discovery provided to Petitioner is to
remain in the custody possession of
Petitioner’s counsel and counsel’s staff
only.
B. 	All originals, and any copies and/or
duplicates of all discovery materials shall
not be provided to anyone but Petitioner’s
counsel and counsel’s staff, without prior
approval of the Court and notice to
Respondents.
[Id. at 6. 1]
On August 29, 2008, this Court issued its findings and
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recommendations to grant the Petition in part and deny it in
part. 	On September 30, 2008, United States District Judge
David Alan Ezra issued an order adopting this Court’s findings
and recommendations in part and modifying them in part (“Habeas
Order”). 	The Habeas Order granted the Petition as to one of
Petitioner’s grounds and ordered Respondent to release Petitioner
within seven days of the entry of judgment, unless the State
elected to retry Petitioner. 	The Habeas Order denied the
Petition as to all other grounds. 	Both Petitioner and Respondent
filed notices of appeal.
On February 19, 2010, the Ninth Circuit issued its
opinion reversing the Habeas Order and denying the Petition.
Christian v. Frank, 595 F.3d 1076 (9th Cir. 2010). 	The Ninth
Circuit’s opinion did not order any remand to this district
court. 	The Ninth Circuit also issued a memorandum opinion,
declining to issue a certificate of appealability for
Petitioner’s cross-appeal. 	Christian v. Frank, 365 Fed. Appx.
877 (9th Cir. 2010).
On March 11, 2010, Petitioner filed a petition for
panel rehearing and a petition for rehearing en banc. 	The Ninth
Circuit panel denied both petitions on May 19, 2010. 	The Ninth
Circuit issued its Mandate on May 27, 2010. 	Petitioner filed a
petition for a writ of certiorari to the United States Supreme
Court on August 17, 2010. 	The Supreme Court denied the petition
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2 At the hearing on the instant Motion and the motion to
withdraw, this Court orally granted the motion to withdraw and
directed Petitioner’s counsel to draft a proposed order.
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on November 1, 2010. 	Christian v. Frank, 131 S. Ct. 511 (2010).
Simultaneously with the instant Motion, Petitioner’s
counsel filed a motion to withdraw. 2 	The instant Motion states
that Petitioner wishes to continue working on his case to explore
any other possible avenues of relief. 	Petitioner requested that
his counsel forward all case documents, including discovery
documents, either to his mother or to himself in prison. 	[Motion
at 2.] 	The Motion notes that, pursuant to the Initial Discovery
Order, this request appears to require prior notice to Respondent
and approval of the Court.
The Motion identifies the following documents in
counsel’s possession which appear to be subject to the Disclosure
Requirements (collectively “Disputed Documents”):
1. 	Documents provided by the Department of
the Prosecuting Attorney of the County of Maui
with a cover letter dated October 8, 2007;
2. 	Documents associated with Brian
Wraxall’s DNA testing provided, pursuant to
discovery requirements, to counsel for both
Petitioner and Respondent. 	In addition to
containing details of Mr. Wraxall’s testing, this
group of documents includes materials provided to
Mr. Wraxall by the prosecution.
[Motion at 2.] 	The Motion states that the other discovery
materials in this case either: were obtained by Petitioner and
his mother before the Initial Discovery Order; or are public
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record because the parties filed them in the course of this
litigation.
Petitioner requests the Court’s direction on the
disposition of the Disputed Documents and any other documents
that may be identified in the future as falling within the
Disputed Documents categories.
In his Objection, Respondent argues that, although the
instant action is a federal case, because it arose from a Hawai`i
criminal case, Hawaii Rules of Penal Procedure Rule 16(e)(3)
applies. 	Respondent also argues that the Initial Discovery Order
serves as a protective order in this case. 	Respondent objects to
Petitioner’s request to turn the Disputed Documents “over to
Petitioner in particular because the documents, especially police
reports, contain confidential personal information of
individuals, including but not limited to addresses, telephone
numbers, social security numbers and dates of birth.” 	[Objection
2.]
Respondent also states that the October 8, 2007 letter
that Mr. Barrett referenced in the Disputed Documents “was a
cover letter for lists, with descriptions, of discovery materials
in the possession of the County of Maui Department of the
Prosecuting Attorney and the County of Maui Police Department.”
[Id. at 3.]
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DISCUSSION
Rule 6 of the Rules Governing Section 2254 Cases in the
United States District Courts governs discovery in habeas
actions. 	It states: “A judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of Civil
Procedure and may limit the extent of discovery.” 	Rule 6(a), 28
U.S.C. foll. § 2254.
A habeas petitioner is not presumptively entitled to
discovery. 	Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir.
1999). 	Rule 6(a) is meant to be consistent with the Supreme
Court’s decision in Harris v. Nelson, 394 U.S. 286 (1969). 	Rule
6(a), 28 U.S.C. foll. § 2254, advisory committee’s note (1976
Adoption). 	In Harris, the Supreme Court stated that “where
specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief, it is the duty
of the court to provide the necessary facilities and procedures
for an adequate inquiry.” 	394 U.S. at 300.
Petitioner has exhausted all avenues of appeal in the
instant case, and his Petition is no longer pending before the
district court. 	Petitioner is therefore no longer entitled to
conduct formal discovery. 	If Petitioner files another habeas
action, he would have to seek leave to conduct discovery in that
case.
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The Court acknowledges that Petitioner, acting pro se
in anticipation of counsel’s withdrawal, filed a Motion to Reopen
Original Habeas Corpus Petition Due to Newly Discovered Evidence
of Fraud Upon the Court (“Motion to Reopen”). 	[Filed 1/7/11
(dkt. no. 229).] 	Respondent filed its memorandum in opposition
on February 3, 2011, and Petitioner’s reply is due by February
17, 2011. 	Even if Judge Ezra grants the Motion to Reopen,
insofar as the standard to conduct discovery in habeas actions
requires an analysis of the petitioner’s likelihood of success on
the merits of his claims, this Court concludes that Petitioner
must file a motion pursuant to Rule 6 to conduct discovery in the
reopened case.
The Court FINDS that Petitioner is not entitled to
retain the discovery materials that Respondent produced pursuant
to the Initial Discovery Order. 	Where Respondent produced
materials that Petitioner was already in possession of, or where
the materials produced became part of the public record in this
case, Petitioner may retain any copies that his counsel made of
the discovery, but Petitioner must return all originals and any
duplicates that Respondent provided.
CONCLUSION
On the basis of the foregoing, Petitioner’s Motion for
Order Regarding Disposition of Discovery Material, filed
December 16, 2010, is HEREBY GRANTED. 	The Court HEREBY ORDERS
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Petitioner’s counsel to return: all originals and any duplicates
of discovery materials that Respondent produced to Petitioner’s
counsel; and all copies of any discovery materials that were not
filed in the public record in this case, unless Petitioner
obtained the materials prior to conducting discovery in this
case. 	The Court ORDERS Petitioner’s counsel to return the
discovery materials to the Department of the Prosecuting
Attorney, County of Maui, care of Richard Minatoya and
Peter Hanano, by no later than March 21, 2011.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 8, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
TARYN CHRISTIAN V. CLAYTON FRANK, ETC.; CIVIL NO. 04-00743 DAE-
LEK; ORDER GRANTING PETITIONER’S MOTION FOR ORDER REGARDING
DISPOSITION OF DISCOVERY MATERIAL
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