1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEVIN A. GEARHART, Case No. 18-cv-06017-WHO
Petitioner, 8 ORDER DISMISSING CERTAIN v. 9 HABEAS CLAIMS; ORDER SERVING CERTAIN 10 JOSIE GASTELO, HABEAS CLAIMS 11 Respondent.
12 13 Gearhart Kevin Gearhart filed a federal petition for a writ of habeas corpus under 28 14 U.S.C. § 2254. (Dkt. No. 1.) I previously dismissed some of Gearhart’s claims as 15 procedurally defaulted and stayed the rest of the case at Gearhart’s request so that he could 16 exhaust claims in state court. (See Dkt. No. 18.) 17 Gearhart exhausted claims in state court and the action was reopened. (Dkt. No. 18 21.) He filed a first amended petition, which did not provide specific facts to support each 19 of Gearhart’s claims. (Id. at 1.) I dismissed it with leave to amend. (Id.) 20 Gearhart has now filed a second amended petition. (Dkt. No. 22 (“SAP”).) It is 21 before me for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 22 Section 2254 Cases. As discussed below, I will dismiss the Confrontation Clause claim 23 with prejudice because Gearhart has failed to allege facts that would support such a claim 24 after I identified that deficiency in the first amended petition. The remaining three claims 25 may proceed. 26 DISCUSSION 27 A district court may entertain a petition for writ of habeas corpus “in behalf of a 1 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2 § 2254(a). In considering an application for a writ of habeas corpus, the court shall “award 3 the writ or issue an order directing the respondent to show cause why the writ should not 4 be granted, unless it appears from the application that the applicant or person detained is 5 not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the 6 allegations in the petition are vague or conclusory, palpably incredible, or patently 7 frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 8 Gearhart stated the following claims in his second amended petition: 9 (i) his rights under the Confrontation Clause were violated with respect to 10 “motives and truth from accusers” (SAP at 3); 11 (ii) the admission of child sexual abuse accommodation syndrome (CSAAS) 12 evidence violated his right to due process because (a) it is inherently 13 prejudicial and (b) the jury instructions related to the CSAAS evidence were 14 unclear (id. at 5); 15 (iii) the prosecutor failed to disclose favorable evidence (id. at 6); and 16 (iv) defense counsel rendered ineffective assistance by (a) waiving opening 17 statements, (b) failing to cross-examine and impeach certain witnesses, 18 (c) failing to exclude certain witnesses, (d) failing to consult experts, and 19 (e) failing to exercise reasonable skill and diligence (id. at 6-7). 20 When liberally construed, Gearhart’s second, third, and fourth claims are 21 cognizable and shall proceed. 22 Gearhart’s first claim cannot proceed because he again fails to provide specific facts 23 to support a claim for violation of the Confrontation Clause. The Confrontation Clause 24 “commands, not that evidence be reliable, but that reliability be assessed in a particular 25 manner: by testing in the crucible of cross-examination.” See Crawford v. Washington, 26 541 U.S. 36, 61 (2004); see also Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (noting a 27 primary interest secured by the Confrontation Clause is the right of cross-examination). 1 against him.” U.S. Const. amend. VI. He offers no facts to suggest that he was prevented 2 from cross-examining his accusers or any other witnesses, or that the cross-examination of 3 any witness was curtailed in a manner that implicated his confrontation rights. (See 4 generally, SAP.) 5 The opinion of the California Court of Appeal suggests that at least one of 6 Gearhart’s accusers testified against him. See People v. Gearhart, No. H041051, 2017 WL 7 75840, at *5-6 (Cal. Ct. App. Jan. 9, 2017) (referring to Joshua’s testimony and cross- 8 examination).1 Rather than explaining how his confrontation rights were violated, 9 Gearhart contends that his accusers were motivated to lie about the alleged sexual assault. 10 (See SAP at 3-4). But such a motive could have been revealed during cross-examination 11 of those accusers. To the extent he contends that defense counsel should have, but failed 12 to, properly cross-examine Gearhart’s accusers about their alleged motivation to lie, such a 13 contention falls within the purview of Gearhart’s fourth claim regarding ineffective 14 assistance. Because Gearhart has provided no facts to support his Confrontation Clause 15 claim, this claim is dismissed. 16 Dismissal of the Confrontation Clause claim is without leave to amend. Any further 17 amendment would be futile, and it is well-settled that a “district court need not allow futile 18 amendments.” Snyder v. State of Nev., 852 F.2d 572 (9th Cir. 1988) (construing an 19 amended complaint as a habeas petition and approving the district court’s dismissal 20 because amendment would be futile) (citing Klamath–Lake Pharmaceutical Ass’n. v. 21 Klamath Medical Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)). Here, Gearhart has 22 been given three opportunities to plead cognizable claims. (See Dkt. Nos. 1 (original 23 petition), 20 (first amended petition), 22 (SAP).) I previously dismissed Gearhart’s first 24 amended petition for a failure to plead sufficient facts, and cautioned him that on 25 amendment he “must . . . provide specific facts in support of each claim.” (Dkt. No. 21 at 26 1 See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (Courts “may take notice 27 of proceedings in other courts, both within and without the federal judicial system, if those 1 1.) He failed to allege any facts that would support this claim and cure the deficiency I 2 identified. Where an “amended petition does not cure the deficiency earlier identified by 3 the court[,] [t]court will not grant leave to amend because it would be futile.” Slaughter v. 4 McGraff, No. C 02-3718 SI, 2002 WL 31932050, at *1 (N.D. Cal. Jan. 3, 2002); accord 5 Snyder, 852 F.2d at 572 (the proposed amendment would be futile because it “d[id] not 6 cure the deficiency” identified by the court). Accordingly, Gearhart’s claim for violation 7 of the Confrontation Clause is dismissed without leave to amend. 8 CONCLUSION 9 1. The Clerk shall serve electronically a copy of this order upon the respondent and 10 the respondent’s attorney, the Attorney General of the State of California, at the following 11 email address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are 12 available via the Electronic Case Filing System for the Northern District of California. 13 The Clerk shall serve by mail a copy of this order on Gearhart. 14 2. Gearhart’s first claim is dismissed without leave to amend. 15 3.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEVIN A. GEARHART, Case No. 18-cv-06017-WHO
Petitioner, 8 ORDER DISMISSING CERTAIN v. 9 HABEAS CLAIMS; ORDER SERVING CERTAIN 10 JOSIE GASTELO, HABEAS CLAIMS 11 Respondent.
12 13 Gearhart Kevin Gearhart filed a federal petition for a writ of habeas corpus under 28 14 U.S.C. § 2254. (Dkt. No. 1.) I previously dismissed some of Gearhart’s claims as 15 procedurally defaulted and stayed the rest of the case at Gearhart’s request so that he could 16 exhaust claims in state court. (See Dkt. No. 18.) 17 Gearhart exhausted claims in state court and the action was reopened. (Dkt. No. 18 21.) He filed a first amended petition, which did not provide specific facts to support each 19 of Gearhart’s claims. (Id. at 1.) I dismissed it with leave to amend. (Id.) 20 Gearhart has now filed a second amended petition. (Dkt. No. 22 (“SAP”).) It is 21 before me for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 22 Section 2254 Cases. As discussed below, I will dismiss the Confrontation Clause claim 23 with prejudice because Gearhart has failed to allege facts that would support such a claim 24 after I identified that deficiency in the first amended petition. The remaining three claims 25 may proceed. 26 DISCUSSION 27 A district court may entertain a petition for writ of habeas corpus “in behalf of a 1 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2 § 2254(a). In considering an application for a writ of habeas corpus, the court shall “award 3 the writ or issue an order directing the respondent to show cause why the writ should not 4 be granted, unless it appears from the application that the applicant or person detained is 5 not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the 6 allegations in the petition are vague or conclusory, palpably incredible, or patently 7 frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 8 Gearhart stated the following claims in his second amended petition: 9 (i) his rights under the Confrontation Clause were violated with respect to 10 “motives and truth from accusers” (SAP at 3); 11 (ii) the admission of child sexual abuse accommodation syndrome (CSAAS) 12 evidence violated his right to due process because (a) it is inherently 13 prejudicial and (b) the jury instructions related to the CSAAS evidence were 14 unclear (id. at 5); 15 (iii) the prosecutor failed to disclose favorable evidence (id. at 6); and 16 (iv) defense counsel rendered ineffective assistance by (a) waiving opening 17 statements, (b) failing to cross-examine and impeach certain witnesses, 18 (c) failing to exclude certain witnesses, (d) failing to consult experts, and 19 (e) failing to exercise reasonable skill and diligence (id. at 6-7). 20 When liberally construed, Gearhart’s second, third, and fourth claims are 21 cognizable and shall proceed. 22 Gearhart’s first claim cannot proceed because he again fails to provide specific facts 23 to support a claim for violation of the Confrontation Clause. The Confrontation Clause 24 “commands, not that evidence be reliable, but that reliability be assessed in a particular 25 manner: by testing in the crucible of cross-examination.” See Crawford v. Washington, 26 541 U.S. 36, 61 (2004); see also Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (noting a 27 primary interest secured by the Confrontation Clause is the right of cross-examination). 1 against him.” U.S. Const. amend. VI. He offers no facts to suggest that he was prevented 2 from cross-examining his accusers or any other witnesses, or that the cross-examination of 3 any witness was curtailed in a manner that implicated his confrontation rights. (See 4 generally, SAP.) 5 The opinion of the California Court of Appeal suggests that at least one of 6 Gearhart’s accusers testified against him. See People v. Gearhart, No. H041051, 2017 WL 7 75840, at *5-6 (Cal. Ct. App. Jan. 9, 2017) (referring to Joshua’s testimony and cross- 8 examination).1 Rather than explaining how his confrontation rights were violated, 9 Gearhart contends that his accusers were motivated to lie about the alleged sexual assault. 10 (See SAP at 3-4). But such a motive could have been revealed during cross-examination 11 of those accusers. To the extent he contends that defense counsel should have, but failed 12 to, properly cross-examine Gearhart’s accusers about their alleged motivation to lie, such a 13 contention falls within the purview of Gearhart’s fourth claim regarding ineffective 14 assistance. Because Gearhart has provided no facts to support his Confrontation Clause 15 claim, this claim is dismissed. 16 Dismissal of the Confrontation Clause claim is without leave to amend. Any further 17 amendment would be futile, and it is well-settled that a “district court need not allow futile 18 amendments.” Snyder v. State of Nev., 852 F.2d 572 (9th Cir. 1988) (construing an 19 amended complaint as a habeas petition and approving the district court’s dismissal 20 because amendment would be futile) (citing Klamath–Lake Pharmaceutical Ass’n. v. 21 Klamath Medical Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)). Here, Gearhart has 22 been given three opportunities to plead cognizable claims. (See Dkt. Nos. 1 (original 23 petition), 20 (first amended petition), 22 (SAP).) I previously dismissed Gearhart’s first 24 amended petition for a failure to plead sufficient facts, and cautioned him that on 25 amendment he “must . . . provide specific facts in support of each claim.” (Dkt. No. 21 at 26 1 See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (Courts “may take notice 27 of proceedings in other courts, both within and without the federal judicial system, if those 1 1.) He failed to allege any facts that would support this claim and cure the deficiency I 2 identified. Where an “amended petition does not cure the deficiency earlier identified by 3 the court[,] [t]court will not grant leave to amend because it would be futile.” Slaughter v. 4 McGraff, No. C 02-3718 SI, 2002 WL 31932050, at *1 (N.D. Cal. Jan. 3, 2002); accord 5 Snyder, 852 F.2d at 572 (the proposed amendment would be futile because it “d[id] not 6 cure the deficiency” identified by the court). Accordingly, Gearhart’s claim for violation 7 of the Confrontation Clause is dismissed without leave to amend. 8 CONCLUSION 9 1. The Clerk shall serve electronically a copy of this order upon the respondent and 10 the respondent’s attorney, the Attorney General of the State of California, at the following 11 email address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are 12 available via the Electronic Case Filing System for the Northern District of California. 13 The Clerk shall serve by mail a copy of this order on Gearhart. 14 2. Gearhart’s first claim is dismissed without leave to amend. 15 3. On or before July 16, 2021, respondent shall file with the Court and serve on 16 Gearhart an answer conforming in all respects to Rule 5 of the Rules Governing Section 17 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 18 Gearhart’s second, third, and fourth claims. Respondent shall file with the answer and 19 serve on Gearhart a copy of all portions of the state trial record that previously have been 20 transcribed and that are relevant to a determination of the issues presented by the petition. 21 4. If Gearhart wishes to respond to the answer, he shall do so by filing a traverse 22 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 23 answer is filed. 24 5. In lieu of an answer, respondent may file, on or before July 16, 2021, a motion 25 to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 26 of the Rules Governing Section 2254 Cases. If respondent files such a motion, Gearhart 27 shall file with the Court and serve on respondent an opposition or statement of non- 1 |} with the Court and serve on Gearhart a reply within fifteen (15) days of the date any 2 || opposition is filed. 3 6. Gearhart is reminded that all communications with the Court must be served on 4 || respondent by mailing a true copy of the document to respondent’s counsel. 5 7. Itis Gearhart’s responsibility to prosecute this case. Gearhart must keep the 6 || Court and respondent informed of any change of address and must comply with the 7 || Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 8 || action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 9 8. Upon a showing of good cause, requests for a reasonable extension of time will 10 || be granted provided they are filed on or before the deadline they seek to extend. 11 8. The filing fee has been paid. (Dkt. No. 1.) a 12 IT IS SO ORDERED. . |) Dated: April 7, 2021 \f CE a ‘ —_—_—___ LLIAM H. ORRICK 8 15 United States District Judge 16
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