1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arthur L Vitasek, No. CV-21-00436-PHX-MTL
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 Before the Court are several motions filed by Petitioner Arthur Vitasek (Docs. 45, 16 46, 47, 50, 51, 56), and one motion filed by Respondents (Doc. 59). The Court rules as 17 follows. 18 I. 19 Petitioner filed the instant petition for writ of habeas corpus (Doc. 1) on March 12, 20 2021. Shortly thereafter, he filed motions for discovery (Doc. 9) and for an evidentiary 21 hearing (Doc. 18). On March 2, 2022, the Magistrate Judge issued a Report and 22 Recommendation (R & R) recommending that the habeas petition be dismissed with 23 prejudice. (Doc. 42.) The R & R also recommended that Petitioner’s motions (Docs. 9, 24 18) be denied. Just after the R & R was filed, Petitioner moved to expand the record 25 (Doc. 43). On March 8, 2022, the Court filed an order denying Petitioner’s motions 26 (Docs. 9, 18, 43) without prejudice and directing Petitioner to file a single pleading 27 stating his objections to the R & R, including its conclusions regarding his motions for 28 discovery and for an evidentiary hearing. Petitioner has since filed six motions: two 1 motions for record (Docs. 45, 47), a motion to forward petitioner’s exhibits (Doc. 46), 2 two motions for leave of court to expand record (Docs. 50, 56), and a motion for leave 3 of court to file oversized written objections (Doc. 51). 4 II. 5 In Petitioner’s first motion for record (Doc. 45), he seeks an order directing 6 Respondents to provide him a copy of a victim interview conducted by Detective Rash 7 and a copy of all redacted interviews by all detectives regarding all victims. He also 8 requests that the Court either grant his “narrative summary” (Doc. 24) or order 9 Respondents to produce hearing transcripts from December 3, 2010. In his second 10 motion for record (Doc. 47), he requests an order directing Respondents to provide him 11 with “both versions” of a jury instruction that was given at his trial regarding the use 12 of recorded hearsay statements. 13 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled 14 to discovery as a matter of ordinary course.” See Bracy v. Gramley, 520 U.S. 899, 904 15 (1997). But a “judge may, for good cause, authorize a party to conduct discovery under 16 the Federal Rules of Civil Procedure and may limit the extent of the discovery.” U.S.C. 17 § 2254 Cases R. 6(a). Good cause exists “where specific allegations before the court show 18 reason to believe that the petitioner may, if the facts are fully developed, be able to 19 demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 904; see also Smith v. 20 Mahoney, 611 F.3d 978, 996 (9th Cir. 2010). 21 Petitioner has not established good cause. The interview transcripts Petitioner 22 requests appear to relate to his contention that the trial court erroneously precluded 23 evidence that detectives threatened the victims and forced them to falsely accuse him of 24 sex crimes. (Doc. 48 at 3.) As Respondents and the R & R note, however, the record 25 shows that the trial judge allowed Petitioner’s counsel to question detectives about 26 whether they made threatened or otherwise coerced victims in their interviews. (See 27 Doc. 30-6 at 110–11, Doc. 30-10 at 77.) Similarly, the record shows that Petitioner’s trial 28 counsel was permitted to make this coercion argument during closing arguments. (See 1 Doc. 31-6 at 70–74.) Thus, even if Petitioner could access the interview transcripts, 2 there is no reason to believe that, based on that evidence, he would be able to show that 3 he is entitled to relief. 4 Petitioner’s request that the Court grant his “narrative summary” will also be denied. 5 The narrative summary sets forth Petitioner’s version of what occurred at a December 6 3, 2010, hearing before the state trial court, in which the parties discussed Petitioner’s 7 request to introduce evidence regarding the victims’ prior sexual acts. Even assuming that 8 the version of facts set forth in the narrative summary is true, there is no reason to 9 believe that Petitioner can establish, based on that evidence, that he is entitled to relief. 10 Petitioner believes the evidence is relevant to his claim that the trial court never conducted 11 a hearing and never otherwise made a ruling, regarding the admission of evidence 12 regarding the victims’ prior sexual acts. But the record clearly shows that the trial judge 13 reviewed the evidence, held a hearing (after the December 3, 2010, hearing), and issued a 14 ruling precluding the evidence. (Doc. 10–6, at 86–87.) Thus, Petitioner’s narrative 15 summary, and his request to obtain a transcript from the December 3, 2010, hearing, will 16 be denied. 17 Petitioner’s request to obtain “both versions” of a jury instruction relating to the use 18 of recorded hearsay statements must likewise be denied. The request does not bear on the 19 grounds for relief asserted in Petitioner’s habeas petition. While Petitioner claims his 20 constitutional rights, and Arizona Rule of Evidence 803(5), were violated by the admission 21 of certain hearsay evidence, he raises no claim pertaining to the jury instructions given 22 regarding hearsay evidence. And evidence regarding such jury instructions has no 23 bearing on Petitioner’s constitutional and evidentiary claims. In addition, Petitioner 24 already has a copy of the instructions that were read to the jury at the close of his state 25 trial. Petitioner’s motions for record (Docs. 45, 47) will accordingly be denied. 26 The Court has access to the exhibits filed by Petitioner. Petitioner’s motion 27 regarding the forwarding of exhibits (Doc. 46) will be therefore denied. 28 Petitioner also moves to expand the record (Doc. 50). Petitioner claims that the 1 exhibits he seeks to add “were either part of the existing record on appeal or were 2 documents used during the course of trial.” (Id. at 1.) To the extent the exhibits 3 referenced are already in the record, Petitioner’s request is moot. To the extent Petitioner 4 does in fact seek to expand the record, his request will be denied, because he has neither 5 explained the relevance of the referenced exhibits nor demonstrated good cause for their 6 inclusion. 7 Petitioner likewise moves to expand the record with a recently created affidavit 8 from his trial counsel, Robert Dossey. (Doc. 56.) Based on the affidavit, he also requests 9 an evidentiary hearing. The affidavit states that the state trial judge “changed his ruling on 10 how the audio-taped interview information could be used by the jury” and then “gave a 11 Final Jury Instruction that allowed the jury to use the information given by the Victims 12 in their forensic interviews as evidence that could prove the State’s allegations against 13 the Defendant.” (Doc. 56 at 6.) This evidence, however, is already in the record. (See 14 Doc. 1-5, at 76–77; Doc. 31-5 at 174–75, 179; Doc. 31-6 at 11–12.) Indeed, Petitioner’s 15 motion states that the affidavit “does not create new evidence but rather substantiates and 16 confirms the existing record.” (Doc. 56 at 3.) Petitioner’s motion will accordingly be 17 denied. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[A]n evidentiary hearing is 18 not required on issues that can be resolved by reference to the state court record.” 19 (quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Arthur L Vitasek, No. CV-21-00436-PHX-MTL
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 Before the Court are several motions filed by Petitioner Arthur Vitasek (Docs. 45, 16 46, 47, 50, 51, 56), and one motion filed by Respondents (Doc. 59). The Court rules as 17 follows. 18 I. 19 Petitioner filed the instant petition for writ of habeas corpus (Doc. 1) on March 12, 20 2021. Shortly thereafter, he filed motions for discovery (Doc. 9) and for an evidentiary 21 hearing (Doc. 18). On March 2, 2022, the Magistrate Judge issued a Report and 22 Recommendation (R & R) recommending that the habeas petition be dismissed with 23 prejudice. (Doc. 42.) The R & R also recommended that Petitioner’s motions (Docs. 9, 24 18) be denied. Just after the R & R was filed, Petitioner moved to expand the record 25 (Doc. 43). On March 8, 2022, the Court filed an order denying Petitioner’s motions 26 (Docs. 9, 18, 43) without prejudice and directing Petitioner to file a single pleading 27 stating his objections to the R & R, including its conclusions regarding his motions for 28 discovery and for an evidentiary hearing. Petitioner has since filed six motions: two 1 motions for record (Docs. 45, 47), a motion to forward petitioner’s exhibits (Doc. 46), 2 two motions for leave of court to expand record (Docs. 50, 56), and a motion for leave 3 of court to file oversized written objections (Doc. 51). 4 II. 5 In Petitioner’s first motion for record (Doc. 45), he seeks an order directing 6 Respondents to provide him a copy of a victim interview conducted by Detective Rash 7 and a copy of all redacted interviews by all detectives regarding all victims. He also 8 requests that the Court either grant his “narrative summary” (Doc. 24) or order 9 Respondents to produce hearing transcripts from December 3, 2010. In his second 10 motion for record (Doc. 47), he requests an order directing Respondents to provide him 11 with “both versions” of a jury instruction that was given at his trial regarding the use 12 of recorded hearsay statements. 13 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled 14 to discovery as a matter of ordinary course.” See Bracy v. Gramley, 520 U.S. 899, 904 15 (1997). But a “judge may, for good cause, authorize a party to conduct discovery under 16 the Federal Rules of Civil Procedure and may limit the extent of the discovery.” U.S.C. 17 § 2254 Cases R. 6(a). Good cause exists “where specific allegations before the court show 18 reason to believe that the petitioner may, if the facts are fully developed, be able to 19 demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 904; see also Smith v. 20 Mahoney, 611 F.3d 978, 996 (9th Cir. 2010). 21 Petitioner has not established good cause. The interview transcripts Petitioner 22 requests appear to relate to his contention that the trial court erroneously precluded 23 evidence that detectives threatened the victims and forced them to falsely accuse him of 24 sex crimes. (Doc. 48 at 3.) As Respondents and the R & R note, however, the record 25 shows that the trial judge allowed Petitioner’s counsel to question detectives about 26 whether they made threatened or otherwise coerced victims in their interviews. (See 27 Doc. 30-6 at 110–11, Doc. 30-10 at 77.) Similarly, the record shows that Petitioner’s trial 28 counsel was permitted to make this coercion argument during closing arguments. (See 1 Doc. 31-6 at 70–74.) Thus, even if Petitioner could access the interview transcripts, 2 there is no reason to believe that, based on that evidence, he would be able to show that 3 he is entitled to relief. 4 Petitioner’s request that the Court grant his “narrative summary” will also be denied. 5 The narrative summary sets forth Petitioner’s version of what occurred at a December 6 3, 2010, hearing before the state trial court, in which the parties discussed Petitioner’s 7 request to introduce evidence regarding the victims’ prior sexual acts. Even assuming that 8 the version of facts set forth in the narrative summary is true, there is no reason to 9 believe that Petitioner can establish, based on that evidence, that he is entitled to relief. 10 Petitioner believes the evidence is relevant to his claim that the trial court never conducted 11 a hearing and never otherwise made a ruling, regarding the admission of evidence 12 regarding the victims’ prior sexual acts. But the record clearly shows that the trial judge 13 reviewed the evidence, held a hearing (after the December 3, 2010, hearing), and issued a 14 ruling precluding the evidence. (Doc. 10–6, at 86–87.) Thus, Petitioner’s narrative 15 summary, and his request to obtain a transcript from the December 3, 2010, hearing, will 16 be denied. 17 Petitioner’s request to obtain “both versions” of a jury instruction relating to the use 18 of recorded hearsay statements must likewise be denied. The request does not bear on the 19 grounds for relief asserted in Petitioner’s habeas petition. While Petitioner claims his 20 constitutional rights, and Arizona Rule of Evidence 803(5), were violated by the admission 21 of certain hearsay evidence, he raises no claim pertaining to the jury instructions given 22 regarding hearsay evidence. And evidence regarding such jury instructions has no 23 bearing on Petitioner’s constitutional and evidentiary claims. In addition, Petitioner 24 already has a copy of the instructions that were read to the jury at the close of his state 25 trial. Petitioner’s motions for record (Docs. 45, 47) will accordingly be denied. 26 The Court has access to the exhibits filed by Petitioner. Petitioner’s motion 27 regarding the forwarding of exhibits (Doc. 46) will be therefore denied. 28 Petitioner also moves to expand the record (Doc. 50). Petitioner claims that the 1 exhibits he seeks to add “were either part of the existing record on appeal or were 2 documents used during the course of trial.” (Id. at 1.) To the extent the exhibits 3 referenced are already in the record, Petitioner’s request is moot. To the extent Petitioner 4 does in fact seek to expand the record, his request will be denied, because he has neither 5 explained the relevance of the referenced exhibits nor demonstrated good cause for their 6 inclusion. 7 Petitioner likewise moves to expand the record with a recently created affidavit 8 from his trial counsel, Robert Dossey. (Doc. 56.) Based on the affidavit, he also requests 9 an evidentiary hearing. The affidavit states that the state trial judge “changed his ruling on 10 how the audio-taped interview information could be used by the jury” and then “gave a 11 Final Jury Instruction that allowed the jury to use the information given by the Victims 12 in their forensic interviews as evidence that could prove the State’s allegations against 13 the Defendant.” (Doc. 56 at 6.) This evidence, however, is already in the record. (See 14 Doc. 1-5, at 76–77; Doc. 31-5 at 174–75, 179; Doc. 31-6 at 11–12.) Indeed, Petitioner’s 15 motion states that the affidavit “does not create new evidence but rather substantiates and 16 confirms the existing record.” (Doc. 56 at 3.) Petitioner’s motion will accordingly be 17 denied. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[A]n evidentiary hearing is 18 not required on issues that can be resolved by reference to the state court record.” 19 (quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)). 20 Even if Dossey’s affidavit included new evidence, or if Petitioner argued an 21 evidentiary hearing would bring new evidence to light, Petitioner’s motion would yet 22 be denied. “[T]he standard [for a § 2254 petitioner] to expand the state-court record is a 23 stringent one.” Shinn v. Ramirez, 596 U.S. ---, 142 S. Ct. 1718, 1728 (2022). “If a 24 prisoner has ‘failed to develop the factual basis of a claim in State court proceedings,’ a 25 federal court ‘shall not hold an evidentiary hearing on the claim’ unless the prisoner 26 satisfies one of two narrow exceptions, and demonstrates that the new evidence will 27 establish his innocence ‘by clear and convincing evidence.’” Id. (quoting 28 U.S.C. 28 § 2254(e)(2)). For one of the “two narrow exceptions” to be triggered, the petitioner’s 1 claim “must rely on (1) a ‘new’ and ‘previously unavailable’ ‘rule of constitutional law’ 2 made retroactively applicable by this Court, or (2) ‘a factual predicate that could not have 3 been previously discovered through the exercise of due diligence.’” Id. at 1734 (quoting 4 § 2254(e)(2)(A)). Neither exception applies in this case. Petitioner’s motion will be 5 denied. 6 Petitioner also moves for leave of the Court to file oversized written objections to 7 the R & R. (Doc. 51.) Respondents do not oppose Petitioner’s motion. (See Doc. 54.) 8 Given the breadth and complexity of the issues presented in the petition, and the 9 length of the R & R, the Court will grant Petitioner’s motion. 10 Finally, Respondents move to strike Petitioner’s filing, located at docket number 11 58, entitled “Memorandum to the District Court.” (Doc. 59.) While the memorandum does 12 not expressly state as much, it appears to be an attempt by Petitioner to amend his 13 habeas petition. Petitioner has not, however, moved to amend, and the Court finds that 14 even if Petitioner had so moved, amendment is not appropriate at this late juncture 15 (months after the R & R issued). Respondents’ motion will be granted. 16 III. 17 Accordingly, 18 IT IS ORDERED denying Petitioner’s Motions for Record (Docs. 45, 47), 19 Motion to Forward Petitioner’s Exhibits (Doc. 46), and Motions for Leave of Court to 20 Expand Record (Docs. 50, 56). 21 IT IS FURTHER ORDERED granting Petitioner’s Motion for Leave of Court 22 to File Oversized Written Objection (Doc. 51). The Clerk of Court is directed to file 23 Petitioner’s objections to the R & R (lodged at Doc. 52). 24 IT IS FURTHER ORDERED granting Respondents’ Motion to Strike (Doc. 59). 25 Petitioner’s filing entitled “Memorandum to the District Court” (Doc. 58) is hereby 26 stricken from the record. 27 IT IS FINALLY ORDERED that Petitioner’s habeas petition (Doc. 1) and the 28 R & R (Doc. 42) remain pending. 1 Dated this 21st day of June, 2022. 2 Wichal T. dhurdle Michael T. Liburdi 5 United States District Judge 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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