1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY RAY HORNING, No. 2:10-cv-01932-DAD-DB 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER DENYING RESPONDENT’S REQUEST FOR RECONSIDERATION 14 RON BROOMFIELD, (Doc. No. 71) 15 Respondent.
16 17 Petitioner Danny Ray Horning is is a state prisoner sentenced to death proceeding with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Petitioner is represented in this action by Assistant Federal Defenders Lissa Gardner and 21 David Harshaw, III. Respondent Ron Broomfield is represented by California Deputy Attorney 22 General Kenneth Sokoler and Deputy Attorney General Robert Gezi. 23 On November 23, 2022, the assigned magistrate judge issued an order granting in part and 24 denying in part petitioner’s motion to temporarily lift the previously ordered stay and abeyance in 25 this action and authorizing petitioner to take the depositions of twenty-three specifically identified 26 witnesses pursuant to Federal Rule of Civil Procedure 27(a) in order to preserve their testimony. 27 (Doc. No. 70.) That order provided that once the authorized depositions were taken, this case 28 would remain stayed and would continue to be held in abeyance until the conclusion of the long 1 pending state habeas exhaustion proceedings. (Id.) Finally, both petitioner’s request to submit 2 declarations in lieu of live testimony (Doc. No. 58) and respondent’s request for discovery prior 3 to the taking of any of the depositions (Doc. No. 62), were denied. (Doc. No. 70 at 2.) 4 On December 6, 2022, respondent filed the pending request for reconsideration of the 5 magistrate judge’s November 23, 2022 order. (Doc. No. 71.) Counsel on behalf of petitioner did 6 not file an opposition to respondent’s request for reconsideration and on February 9, 2023, the 7 court issued a minute order directing petitioner to file a response to the request for 8 reconsideration. (Doc. No. 76.) On February 16, 2023, counsel for petitioner filed a timely 9 opposition to respondent’s request as directed by the court. (Doc. No. 77.) Having considered 10 the arguments of counsel for the parties, for the reasons set forth below, respondent’s request for 11 reconsideration will be denied. 12 Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may 13 be referred to and decided by a magistrate judge, subject to review by the assigned district judge. 14 Fed. R. Civ. P. 72 (a); see also L.R. 303(c). The district judge shall modify or set aside any part 15 of the magistrate judge’s order which is “found to be clearly erroneous or contrary to law.” L.R. 16 303(f); see also 28 U.S.C. § 636(b)(1)(A). The orders of a magistrate judge addressing discovery 17 motions are subject to the “clearly erroneous or contrary to law” standard of review. Rockwell 18 Intern., Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). The magistrate 19 judge’s factual determinations are reviewed for clear error, while legal conclusions are reviewed 20 to determine whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200– 21 01 (9th Cir. 1984), overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th 22 Cir. 1991). “A magistrate judge’s decision is ‘contrary to law’ if it applies an incorrect legal 23 standard, fails to consider an element of [the] applicable standard, or fails to apply or misapplies 24 relevant statutes, case law, or rules of procedure.” Martin v. Loadholt, No. 1:10-cv-00156-LJO- 25 MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014). “[R]eview under the clearly erroneous 26 standard is significantly deferential, requiring a definite and firm conviction that a mistake has 27 been committed.” Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. 28 Cal., 508 U.S. 602, 623 (1993) (internal quotation marks omitted); see also Sec. Farms v. Int'l 1 Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). Pursuant to Local Rule 303, the party 2 seeking reconsideration must “specifically designate the ruling, or part thereof, objected to and 3 the basis for that objection.” L.R. 303(c). 4 Here, respondent argues that the magistrate judge’s order authorizing the taking of 5 specific depositions in order to preserve testimony pursuant to Rule 27(a) is contrary to law 6 where, as here, the pending federal habeas petition before this court contains unexhausted claims. 7 (Doc. No. 71 at 3–6.) Respondent also argues that the magistrate judge erred as a matter of law 8 by applying an incorrect legal standard in determining that petitioner had demonstrated good 9 cause supporting his request to preserve testimony under Rule 27. (Id. at 6–8.) Specifically, 10 respondent contends that in addition to establishing good cause under Rule 27, petitioner should 11 have also been required to establish good cause for the granting of discovery as required under 12 Rule 6(a) of the Rules Governing § 2254 cases pursuant to the decision in Bracy v. Gramley, 520 13 U.S. 889 (1997). The undersigned finds these arguments to be unpersuasive and that respondent 14 has failed to establish that the magistrate judge’s November 23, 2022 order is either clearly 15 erroneous or contrary to law. 16 As the magistrate judge correctly recognized, “Rule 27(a) differs from other discovery 17 rules as it permits testimony to be taken on a showing of good cause before discovery would 18 usually be allowed.” (Doc. No. 70 at 4); see State of Nevada v. O’Leary, 63 F.3d 932, 936 (9th 19 Cir. 1995) (adopting the view that Rule 27 is merely designed to allow the preservation of known 20 testimony and is not a discovery device) (citing Ash v. Cort, 512 F.2d 909, 912 (3rd Cir.1975) 21 (“Rule 27 is not a substitute for discovery”) and Petition of Ferkauf, 3 F.R.D. 89, 90-91 22 (S.D.N.Y.1943) (“Rule 27 was not intended to be used as a discovery statute”)); Martin v. 23 Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir.1961) (“The position of one who expects to be 24 made a defendant is different, and we think that such a defendant should be, and is, entitled to use 25 the Rule, upon a proper showing, to preserve important testimony that might otherwise be lost.”); 26 Tennison v. Henry, 203 F.R.D. 435, 440 (N.D. Cal. 2001) (“The scope of the inquiry that may be 27 permitted under Rule 27 is narrower than that which is permissible under the more general rule 28 governing discovery, . . . . In particular, Rule 27 may be used only to perpetuate important 1 ‘known testimony’ that might otherwise be lost.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY RAY HORNING, No. 2:10-cv-01932-DAD-DB 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER DENYING RESPONDENT’S REQUEST FOR RECONSIDERATION 14 RON BROOMFIELD, (Doc. No. 71) 15 Respondent.
16 17 Petitioner Danny Ray Horning is is a state prisoner sentenced to death proceeding with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Petitioner is represented in this action by Assistant Federal Defenders Lissa Gardner and 21 David Harshaw, III. Respondent Ron Broomfield is represented by California Deputy Attorney 22 General Kenneth Sokoler and Deputy Attorney General Robert Gezi. 23 On November 23, 2022, the assigned magistrate judge issued an order granting in part and 24 denying in part petitioner’s motion to temporarily lift the previously ordered stay and abeyance in 25 this action and authorizing petitioner to take the depositions of twenty-three specifically identified 26 witnesses pursuant to Federal Rule of Civil Procedure 27(a) in order to preserve their testimony. 27 (Doc. No. 70.) That order provided that once the authorized depositions were taken, this case 28 would remain stayed and would continue to be held in abeyance until the conclusion of the long 1 pending state habeas exhaustion proceedings. (Id.) Finally, both petitioner’s request to submit 2 declarations in lieu of live testimony (Doc. No. 58) and respondent’s request for discovery prior 3 to the taking of any of the depositions (Doc. No. 62), were denied. (Doc. No. 70 at 2.) 4 On December 6, 2022, respondent filed the pending request for reconsideration of the 5 magistrate judge’s November 23, 2022 order. (Doc. No. 71.) Counsel on behalf of petitioner did 6 not file an opposition to respondent’s request for reconsideration and on February 9, 2023, the 7 court issued a minute order directing petitioner to file a response to the request for 8 reconsideration. (Doc. No. 76.) On February 16, 2023, counsel for petitioner filed a timely 9 opposition to respondent’s request as directed by the court. (Doc. No. 77.) Having considered 10 the arguments of counsel for the parties, for the reasons set forth below, respondent’s request for 11 reconsideration will be denied. 12 Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may 13 be referred to and decided by a magistrate judge, subject to review by the assigned district judge. 14 Fed. R. Civ. P. 72 (a); see also L.R. 303(c). The district judge shall modify or set aside any part 15 of the magistrate judge’s order which is “found to be clearly erroneous or contrary to law.” L.R. 16 303(f); see also 28 U.S.C. § 636(b)(1)(A). The orders of a magistrate judge addressing discovery 17 motions are subject to the “clearly erroneous or contrary to law” standard of review. Rockwell 18 Intern., Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). The magistrate 19 judge’s factual determinations are reviewed for clear error, while legal conclusions are reviewed 20 to determine whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200– 21 01 (9th Cir. 1984), overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th 22 Cir. 1991). “A magistrate judge’s decision is ‘contrary to law’ if it applies an incorrect legal 23 standard, fails to consider an element of [the] applicable standard, or fails to apply or misapplies 24 relevant statutes, case law, or rules of procedure.” Martin v. Loadholt, No. 1:10-cv-00156-LJO- 25 MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014). “[R]eview under the clearly erroneous 26 standard is significantly deferential, requiring a definite and firm conviction that a mistake has 27 been committed.” Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. 28 Cal., 508 U.S. 602, 623 (1993) (internal quotation marks omitted); see also Sec. Farms v. Int'l 1 Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). Pursuant to Local Rule 303, the party 2 seeking reconsideration must “specifically designate the ruling, or part thereof, objected to and 3 the basis for that objection.” L.R. 303(c). 4 Here, respondent argues that the magistrate judge’s order authorizing the taking of 5 specific depositions in order to preserve testimony pursuant to Rule 27(a) is contrary to law 6 where, as here, the pending federal habeas petition before this court contains unexhausted claims. 7 (Doc. No. 71 at 3–6.) Respondent also argues that the magistrate judge erred as a matter of law 8 by applying an incorrect legal standard in determining that petitioner had demonstrated good 9 cause supporting his request to preserve testimony under Rule 27. (Id. at 6–8.) Specifically, 10 respondent contends that in addition to establishing good cause under Rule 27, petitioner should 11 have also been required to establish good cause for the granting of discovery as required under 12 Rule 6(a) of the Rules Governing § 2254 cases pursuant to the decision in Bracy v. Gramley, 520 13 U.S. 889 (1997). The undersigned finds these arguments to be unpersuasive and that respondent 14 has failed to establish that the magistrate judge’s November 23, 2022 order is either clearly 15 erroneous or contrary to law. 16 As the magistrate judge correctly recognized, “Rule 27(a) differs from other discovery 17 rules as it permits testimony to be taken on a showing of good cause before discovery would 18 usually be allowed.” (Doc. No. 70 at 4); see State of Nevada v. O’Leary, 63 F.3d 932, 936 (9th 19 Cir. 1995) (adopting the view that Rule 27 is merely designed to allow the preservation of known 20 testimony and is not a discovery device) (citing Ash v. Cort, 512 F.2d 909, 912 (3rd Cir.1975) 21 (“Rule 27 is not a substitute for discovery”) and Petition of Ferkauf, 3 F.R.D. 89, 90-91 22 (S.D.N.Y.1943) (“Rule 27 was not intended to be used as a discovery statute”)); Martin v. 23 Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir.1961) (“The position of one who expects to be 24 made a defendant is different, and we think that such a defendant should be, and is, entitled to use 25 the Rule, upon a proper showing, to preserve important testimony that might otherwise be lost.”); 26 Tennison v. Henry, 203 F.R.D. 435, 440 (N.D. Cal. 2001) (“The scope of the inquiry that may be 27 permitted under Rule 27 is narrower than that which is permissible under the more general rule 28 governing discovery, . . . . In particular, Rule 27 may be used only to perpetuate important 1 ‘known testimony’ that might otherwise be lost.”). In short, Bracy’s good cause showing 2 requirement to conduct discovery pursuant to Habeas Rule 6(a) is simply inapplicable here 3 because the depositions under Rule 27(a) are not discovery but are merely authorized for the 4 purpose of preserving known testimony that may otherwise be lost due to the lengthy delay in the 5 state exhaustion petition proceedings. 6 In addition, pursuant to the Supreme Court’s decision in Rhines v. Weber, 544 U.S. 269 7 (2005), district courts are now authorized to stay mixed habeas petitions pending exhaustion. 8 That is what the court has done in this case, one in which petitioner’s exhaustion petitions have 9 now been pending in state court for over a decade without being ruled upon. Even before the 10 decision in Rhines, the Ninth Circuit had approved of district courts authorizing the taking of 11 depositions with respect to even unexhausted claims where the appropriate showing is made, 12 stating as follows: 13 While the claim to which Kohn’s deposition relates is currently unexhausted, we hold that the district court’s application of Fed. R. 14 Civ. Pro. 27(a) was an appropriate use of the procedures available to district courts. “Unlike other discovery rules, Rule 27(a) allows a 15 party to take depositions prior to litigation if it demonstrates an expectation of future litigation, explains the substance of the 16 testimony it expects to elicit and the reasons the testimony will be lost if not preserved.” Penn Mut. Life Ins. Co. v. United States, 68 17 F.3d 1371, 1373 (D.C.Cir.1995). If the court is “satisfied that the perpetuation of the testimony may prevent a failure or delay of 18 justice,” it shall permit the deposition to be taken. Fed. R. Civ. Pro. 27(a)(3). 19 We find that the requirements of Rule 27(a) have been satisfied. 20 21 Calderon v. U.S. District Court for the Northern District of California (Thomas), 144 F.3d 618, 22 619 (9th Cir. 1998). In light of the decision in Rhines, the applicability of Rule 27 to preserve 23 known testimony given what has proven to be decades long delay in state exhaustion petition 24 proceedings is even more apparent. For that reason, as petitioner’s counsel has pointed out, 25 orders authorizing depositions under Rule 27 to preserve testimony such as that issued in this case 26 are not uncommonly issued by various judges of this district court. (Doc. No. 77 at 4–6.) 27 The November 23, 2022 order granting petitioner’s request to preserve testimony under 28 Rule 27(a) was thorough, well-reasoned, fully supported and consistent with Supreme Court and 1 | Ninth Circuit authority. In the undersigned’s view, respondent has failed to demonstrate that any 2 || aspect of that order was either clearly erroneous or contrary to law. Accordingly, respondent’s 3 || request for reconsideration of the magistrate judge’s order (Doc. No. 71) is denied. 4 IT IS SO ORDERED. > | Dated: _February 27, 2023 Da A. 2, aol 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28