Opposition Brief — Woodford, Warden v. Bittaker
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No. 03-362
IN THE SUPREME COURT OF THE UNITED STATES
JEANNE WOODFORD, Warden, Petitioner
LAWRENCE S. BITTAKER, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCE TH
BRIEF OF RESPONDENT IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI
MARIA E. STRATTON
Federal Public Defender
C. RENEE MANES
MARGO ROCCONI*
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles. Calitornia 90012-4202
Telephone: (213) 894-2854
Facsimile: (213) 894-7566
Attorneys for Respondent
*Counsel of Record
No. 03-362
IN THE SUPREME COURT OF THE UNITED STATES
JEANNE WOODFORD, Warden, Petitioner
LAWRENCE S. BITTAKER, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF OF RESPONDENT IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI
MARIA E. STRATTON
Federal Public Defender
C. RENEE MANES
MARGO ROCCONI*
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California 90012-4202
~ Telephone: (213) 894-2854
Facsimile: (213) 894-7566
Attomeys for Respondent
*Counsel of Record
QUESTIONS PRESENTED
(CAPITAL CASE)
l. Does a district court exceed its well-settled authority to control the dissemination of
discovery materials it orders produced in a federal habeas action pending before that court by issuing
an appropriately limited protective order?
r Should certiorari be granted to review a protective order when the Petitioner has
suffered no cognizable harm in any proceeding and when the federal habeas proceeding in which the
protective order was granted remains pending ?
List OF PARTIES
The parties to this action are Petitioner Warden Jeanne Woodford (“the Warden”) and
Respondent Lawrence Bittaker ("Mr. Bittaker"). The State of California is not a party to this action,
at the insistence of counsel for the State, whose motion to have the State dismissed was granted. See
Respondent’s Appendix A & B.
TABLE OF CONTENTS
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I. The Court of Appeals’ Decision Is In Harmony With Well-Established
Principles Of Law And Does Not Merit Certiorari Because It Neither
Exceeds The Authority Of The District Court Nor Impermissibly
imerferes With Amp Stete Court Action... 0. nce cece ec cutee ssa esenns 6
A. The Decision Does Not Exceed the Authority of the District Court ..... 6
B. The Warden's Authorities Do Not Support Her Contention That
the Decision Exceeds the Authority of the District Court. ............ 8
a The Decision Does Not Impermissibly Interfere With any
RE EE tc i hi oe ee a eee es 9
D. A Grant of Certiorari is Not Warranted ...................000 000 11
II. The Court Of Appeals’ Resolution Of The Scope Of The Waiver Of The
Attorney-Client Privilege In A Federal Habeas Corpus Case Where The Petitioner
Is Alleging Ineffective Assistance Of Counsel Does Not Merit Certioran. ..... 12
A. The Decision of the Court Below is Correct and in Harmony
with Well-Established Principles of Law ..............0.....0... 12
B. There is No Clear Conflict Among the Courts of Appeals
OP I ancy ences l orate ks Oe ete Leena ee eke 14
+
Ill. The Ruling Of The Court Of Appeals Is Irrelevant To The Outcome
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RETR II a a e pege e t ee wh eee ame ee n ee 21
EN Ee ee eta) See ey in ere ev LON fey ent cere reat aban Puella A ay il
i
APPENDIX
Appendix A The Warden's Notice of Motion and Motion to Dismiss Attomey
General Bill Lockyer as a Party to this Action
Appendix B District Court Order Re: Respondent’s Motion to Dismiss Attorney
General Bill Lockyer as a Party to this Action
Appendix C Stipulation and Order Granting Respondent (Warden) Leave to Produce a Copy of
Petitioner's Deposition Transcript to Mental Health Expert
TABLE OF AUTHORITIES
FEDERAL CASES
Page(s)
United States Supreme Court
Arizonans for Official English v. Arizona,
ee I uae Gcks he cece eee aera RMAC ETA A ETC ERE ME CEO aE ees 10
Asarco Inc. v. Kadish,
ee eo ag tales Gay Cab ae Sn ine abea See CLOT ee REE OA eae 10
Bracy v. Gramley,
I ews s so aa Rak RRR ASSO EER AEN Cue Cea eee eee ae Cee 6
Degen v. United States,
Sere EE ieee ue uaan et ahaa et k hee A eon y aad eR Aa eek eee ae 7,9
Duckworth v. Eagan,
re re rye rae Gn era eee eee eer es 13
EI. DuPont De Nemours Powder Co. v. Masland,
ee EOE oh lv coy aan CEASR Tees ERED CEES EREDAR ARATE OmEG REET 9
Hunt v. Blackburn,
I sc ce eG a ae ona wae Sn Se eae OA RRR OR RR OLE ee 12
Kerr v. United States District Court,
PN oa hac Vinh acs hi eee N KROL COA eden ke eue ene dh abeae es 13
Kugler v. Helfant,
See eee EP ES ein wa a gk od EAOSs cee Oe Oe hae EOL y ARS eae eee aes 10
Lehman v. Lycoming County Children's Services Agency,
Te I oo 2p RNS Oe baa be ow § Kika SAO SOS RO EERE OA ERR ee 9
Lockhart v. Fretwell,
ee EE ce ye ae eke aan baad wera k We ratne aed Be a hale een uae Es 11
TABLE OF AUTHORITIES
(continued)
Page(s)
McFarland v. Scott,
SEZ SIS. SOP IGOR, Wo oc vc ck edie ces cas 65 ee 2 9
Perez v. Ledesma,
S01 £5.85. GECAGTA) . ww cee ce unxcceced ycbabe meee eee een ee 10
Pitchess v. Davis,
SPE US. SEL CAGTSD gv cc vcs ve vec was canes bee bee ee eee ee ee ee Ny
Seattle Times Co. v. Rhinehart,
467 US. DOCISED) onic cc uwsevecens veeswous © bes be elee eee 7,9
Simmons v. United Siates,
PROUL SST UGHIED ook ck cin s cnccuk Unie wehbe seeee eee 17, 18, 20
Stefanelli v. Mindard,
342 US. FAT CASS)... 0 os 5 6 ves ok owl sen enw ye ee 10
Strickland v. Washington,
S66 U.S. GEE CUSGS) onc ins vv cena ccn cc tcscevny cceeeseeeeee eee 17
Upjohn Co. v. United States, -
QOD US: SES CGO) 6 nis ves vbn d bean inn deans 0eeeeee ee eee 15
Younger v. Harris,
BOL US. S7 CEST) x onc ie dk ose eee eel ce wn a tele ieee ee ae oe 6, 10
Other Federal Cases
Alldread v. City of Grenada,
O08 F.2d 1425 (See Cae. UGGS) own ccs ce ei caw dee ee eens eee eee 15
Anderson v. Calderon,
232 F.38 1053 Oi Ce. SOD) nv ci cen ee dnceet unvg sen besuse5n9eseeae eee 18
Bittaker v. Woodford,
332 F.3d 7S CCW. DOOD) oon ccc eiicicenecevess caren een eee 4,5
TABLE OF AUTHORITIES
(continued)
Page(s)
Campbell v. Eastland,
be by i 2k a 4 nr rrr rem arr Panr or oa 7
Capital Engineering & Manufacturing Co., Inc. v. Weinberger,
ee PO EIAG.. COMED oe i cccscveresrecensbevsen eur toes bee hee eke 7
Chevron Corp. v. Pennzoil Co.,
ge Bah 2. LS 2) Rn yr mr re 13
Diversified Industries, Inc. v. Meredith,
ee ee CN CH, F977) nc cicccccescvecsessocerctseethsdeee0n ke MhGeRE NOS 15, 16
Founding Church of Scientology v. Kelley,
SE: STOEEMGUSFT) ovcccces rec ccnckesoneneseeeeesekecbsd eee ebea ee base 7
Genetech, Inc. v. United States Internal Trade Commission,
oon BET Be A, 1j Pee TEP TPCT T TTT eTPTTTT TTT TT TT tore eS 17
KL Group v. Case, Day & Lynch,
Se ae SOP CPN, IGG) ce vcr esc vesescovecerseseunenees 68S SS EEREDR EER TS 15
In re Martin Marietta Corp..
ee ae Ee CO CW. IDGED occ ccc ic cece cericcssrvevatsrestsuscteReanneedaenes 16
McDowell v. Calderon,
197 F.3d 1253 (9th Cir. 1999) (en banc) .. 0.0.0... eee eee eee ees 18
Newburyport Clamshell Alliance v. Public Service Co.,
CE CLOUT GUE. BSOED vec ccs eceveserseenseevenseeneseeeeotegeen beeen 13,17
Osband v. Woodford,
Ee SCOURS, DUNE) icc reccececesecess sae eseeeesesdenekaseeeeaes 3,18
Permian Corporation v. United States, _
Sere BOWE. CH, IDBE) ws ccc ec cer ecessceseeesesenandewncadbetsee Ren 16
TABLE OF AUTHORITIES
(continued)
Page(s)
In re Ramu Corp.,
ee ee Oe ts csc euch ete be ROeRESS CEC e heh ih bo kakch athena ee 7
In re Sealed Case,
ee Oe I ee ec rece ack besa rae ROLES ERED CEES NOLES 13
In re Sealed Case,
ge & yo ado | FERRE Seater Us preg per er aren eee eae eee rm ie 15
In re Steinhardt Partners, L.P.,
LS fe: fe eo 2 Se eer Pees eee PPT OTe Tae 15, 16
United States v. Amlani,
ge Fi | Ve RPA Rey en, werner yee ee See ee re ae” 12,13
United States v. Mass. Institute of Technology,
Se ee CU BOT D 6 5 bk dwn oo skh ONO e hae Rae Rhee 8086040 ks 58 E RE: 16
United States v. Stewart,
ee ee re OL, CED bc cuca 000. 05e8 ub ceeboue case ks Rees nak tase Cree ke 7
United States v. Suarez,
Re Ce CE, BOER 5-0 6 ho. 6 eK 6 one a0 56a ede ede ree w ake eee teed eee ewes 18
In re von Bulow,
C28. F.26, 103 (28 Cie. 1987)... nn cc ccc ce serevencvesceccssenvsnencessessevessons 15
Westinghouse Electric Corp. v. Republic of the Philippines,
ibe bi: le een eee ee eens err rns Sere Ys ee 16
STATE CASES
Commonwealth v. Chmeil,
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People v. Bradley,
Be Si fs &, Serr errr rrr yer Tree re TT Tre reer te 1]
vl
TABLE OF AUTHORITIES
(continued)
State v. Samuels,
Se eee POP EF, BOOP: 6 hn wk keen nccedcusessesceccensess
Waldrip v. Head,
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FEDERAL STATUTES AND RULES
Rules of the United States Supreme Court
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Federal Rule of Appellate Procedure
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Federal Rules of Civil Procedure
Pe ee ee ee ee sea ee ye Wak tik ee ee ears
Rules Governing Section 2254 Cases in the United States District Court
RAL A enn ON aU Ear a Oe eee ee
OTHER AUTHORITIES
Shapiro, Steven M. & Kenneth S. Geller, Supreme Court Practice,
Se AED 66-40 00.546 CARES Ned eOR SSeS eREES
19
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. 20
IN THE SUPREME COURT OF THE UNITED STATES a
JEANNE WOODFORD, Warden, Petitioner
LAWRENCE S. BITTAKER, Respondent.
BRIEF OF RESPONDENT IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI
ne NS
OPINION OR JUDGMENT BELOW AND STATEMENT OF JURISDICTION
Respondent, Mr. Bittaker, does not object to the Warden's statement of the opinion below
or statement of jurisdiction.
STATU TORY PROVISIONS
In addition to 28 U.S.C. § 2254, cited by the Warden, relevant statutory‘and rule provisions
also include Rule 6 of the Rules Governing Section 2254 Cases in the United States District Court
(hereinafter “Habeas Rules”), which provides:
Xe
A party shall be entitled to invoke the processes of discovery available under
the Federal Rules of Civil Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave to do so, but
not otherwise.
And Rule 26(c) of the Federal Rules of Civil Procedure, which states:
(c) Protective Orders. Upon motion by a party or by the person from whom
discovery is sought, accompanied by a certification that the movant has in
good faith conferred or attempted to confer with other affected parties in an
effort to resolve the dispute without court action, and for good cause shown,
the court in which the action is pending or alternatively, on matters relating
to a deposition, the court in the district where the deposition is to be taken
may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on specified
terms and conditions, including a designation of the time or
place;
(3) that the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of
the disclosure or discovery be limited to certain matters;
(5) that discovery be conducted with no one present except
persons designated by the court;
(6) that a deposition, after being sealed, be opened only by order
of the court;
(7) that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed
only in a designated way; and
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as
directed by the court.
If the motion for a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order that any party or other
person provide or permit discovery. The provisions of Rule 37(a)(4) apply to
the award of expenses incurred in relation to the motion.
te
STATEMENT OF THE CASE
This is a capital habeas action brought under 28 U.S.C. § 2254. In the course of litigating
the claims in Mr. Bittaker’s habeas petition, the parties sought discovery pursuant to Habeas Rule
6. The Warden sought production of the entire file of Mr. Bittaker’s trial counsel, and also sought
to depose Mr. Bittaker and members of his defense team. Mr. Bittaker did not oppose the Warden's
request, but asked the District Court to issue a protective order under Federal Rule of Civil Procedure
26(c) limiting the use of this material to the litigation of the claims in the habeas petition.
On May 10, 2002, the District Court issued a protective order as requested by Mr. Bittaker.'
On May 15, 2002, the Warden filed a Notice of Appeal, contending that this protective order was
' The text of the protective order in its entirety is as follows:
"All discovery granted to respondent pursuant to respondent's motion
to discover trial counsels’ files and conduct depositions of tnal counsel,
petitioner's defense team and petitioner, shall be deemed to be confidential.
These documents and material (hereafter “documents’’) may be used only by
representatives from the Office of the California Attorney General and only
for purposes of any proceedings incident to litigating the claims presented in
the petition for writ of habeas corpus pending before this Court. Disclosure
of the contents of the documents and the documents themselves may not be
made to any other persons or agencies, including any other law enforcement
or prosecutorial personnel or agencies, without an order from this Court.
This order shall continue in effect after the conclusion of the habeas corpus
proceedings and specifically shall apply in the event of a retrial of all or any
portion of petitioner's criminal case, except that either party maintains the
right to request modification or vacation of this order upon entry of final
judgment in this matter.
This Court recognizes that Respondent objects to entry of this
protective order, and that Petitioner contends the required disclosures in this
action do not constitute a waiver of his rights under the Sth and 6th
Amendment in event of any retrial. This Court may vacate the order at any
time. The parties will advise the Court of any future rulings in Oshand vy.
Woodford.”
See Appendix A to the Petition for Wnt of Certiorari at A-3 to A-4, n.1 (hereinafter cited as
“Warden's Appendix”).
a collateral order subject to immediate appeal. Mr. Bittaker did not contest the collateral nature of
the appeal. On May 23, 2003, the Warden filed a motion with the Court of Appeals under Federal
Rule of Appellate Procedure 35, requesting to have the case heard en banc in the first instance. The
Court of Appeals granted this request.
A unanimous en banc panel of the Court of Appeals affirmed the District Court's protective
order on June 6, 2003. The en banc court concluded that the District Court properly issued the
protective order governing the production of trial counsel files in a federal habeas action. The Court
of Appeals held that the order struck the appropriate “delicate balance between the interests of the
state and those of the federal government” in habeas proceedings, by “preserving the state's vital
interest in safeguarding the attorney-client privilege in criminal cases,” while allowing the Warden
to fully litigate Mr. Bittaker’s claims, yet still ensuring that Mr. Bittaker could “obtain{] a fair
adjudication of his petition and secur[e] a retrial untainted by constitutional errors.” Bittaker v.
Woodford, 331 F.3d 715, 721-22 (9th Cir. 2003); Warden’s Appendix at A-11 & A-13.’
REASONS FOR DENYING THE WRIT
Through his certiorari petition, the Warden seeks review of the Court of Appeals’ affirmance
of a district court's discovery order that fell well within the District Court’s discretion under settled
principles of law. In this context, the Warden’s petition is a singularly inappropriate candidate for
certiorari. As described in more detail below, the unanimous en banc opinion in Bittaker v.
Woodford does not present issues of sufficient importance to merit certiorari.
> For ease of reference, Mr. Bittaker will cite to the Warden’s Appendix for page
references to the Court of Appeals’ opinion.
First, this Court does not need to grant certiorari to review the unremarkable proposition that
Federal Rule of Civil Procedure 26(c) grants a district court the authority to issue a protective order
governing documents subject to the attorney-client privilege and the work product doctrine,’ which
documents the District Court ordered be produced solely to allow the parties to litigate claims ina
federal habeas petition. Second, the Bittaker v. Woodford decision does not create a conflict with
the decisions of other Courts of Appeals regarding the scope of an implied waiver of the attorney-
client privilege, particularly because no other Court of Appeal has specifically addressed the proper
scope of a protective order in a federal habeas case where the petitioner is alleging ineffective
assistance of counsel. Finally, the Court of Appeals’ reasoning on this issue ts irrelevant to the
outcome of the merits of this case, and the Warden has been unable to articulate any a or
limitation in her ability to pursue the litigation as a result of the protective order.
For all of these reasons, the Warden’s certiorari petition should be denied.
* The Court of Appeals’ decision was based upon both privileges: "Although our
decision is couched in terms ofthe attorney-client privilege, it applies equally to the work product
privilege..." Warden's Append x at A-12 to A-23.n.6. Mr. Bittaker's discussion of both privileges
will also be encompassed by tte use of the term "attorney-client privilege” or "privilege."
5
ARGUMENT
The Court of Appeals' Decision Is In Harmony With Well-Established Principles Of
Law And Does Not Merit Certiorari Because It Neither Exceeds The Authority Of The
District Court Nor Impermissibly Interferes With Any State Court Action.
The Warden argues that the decision by the Court of Appeals interferes with the prerogatives
of a state court, both exceeding the District Court’s authority under 28 U.S.C. § 2254, and violating
the principles of federalism set forth in Younger v. Harris, 401 U.S. 37 (1971) and its progeny. The
Warden is mistaken. The unanimous Court of Appeals’ decision properly affirms the scope of a
district court's authority to control discovery pending before that court, including the power of a
district court to prevent one party to an action (the Warden) from using the broad civil discovery
procedures allowed in federal court to help a non-party to the action (various prosecutorial agencies)
gain an advantage in criminal proceedings that might be brought in another court in the future.
Further, the decision does not impermissibly interfere with any current or future state court
proceedings.
A. The Decision Does Not Exceed the Authority of the District Court.
The authority of the District Court to control discovery in pending actions, including by
issuing a protective order, and the power of the Court of Appeals to affirm that action is governed
by Habeas Rule 6," F.R.Civ.P. 26(c), and this Court’s decisions.
* Even before Rule 6 existed, this Court noted that the “All Writs Act, 28 U.S.C. § 1651,
gave federal courts the power to ‘fashion appropriate modes of procedure,’ . . . including discovery,
to dispose of habeas petitions’ as law and justice require[.]” Bracy v. Gramley, 520 U.S. 899, 904
(1997), quoting Harris v. Nelson, 394 U.S. 286, 299 & 300 (1969).
6
Habeas Rule 6 provides that:
A party shall be entitled to invoke the processes of discovery available under
the Federal Rules of Civil Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave to do so, but
not otherwise.
One of the processes of discovery available under the Federal Rules of Civil Procedure is a Rule
26(c) protective order. This Court has recognized that a district court's discretion to fashion orders
under Rule 26(c) is quite broad:
To be sure, Rule 26(c) confers broad discretion on the trial court to decide
when a protective order is appropriate and what degree of protection is
required. -
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984).
This Court also has expressly approved using a F.R.Civ.P. 26(c) protective order to prevent
one party from using the broad civil discovery available in federal court to obtain an advantage in
a criminal case:
[T]he District Court has its usual authority to manage discovery in acivil suit,
including the power to enter protective orders limiting discovery as the
interests of justice require. Fed. Rule Civ. Proc. 26(c). Decisions in the
Courts of Appeals have sustained protective orders to prevent parties from
using civil discovery to evade restrictions on discovery in criminal cases.
See, e.g., Inre Ramu Corp., 903 F.2d 312, 316-317, 320- 321 (C.A.5 1990);
United States v. Stewart, 872 F.2d 957, 962-963 (C.A.10 1989); Campbell v.
Eastland, [307 F.2d 478 (C.A.5 1962)] at 487. See also Capital Engineering
& Mfg. Co., Inc. v. Weinberger, 695 F. Supp. 36, 41-42 (D.C.1988);
Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380-381
(D.C.1977).
Degen v. United States, 517 U.S. 820, 826-827 (1996). The Court of Appeals recognized this
concem as one of the bases justifying the protective order in this matter. Warden’s Appendix at A-
14 to A-15 & A-19.
B. The Warden’s Authorities Do Not Support Her Contention That the Decision Exceeds
the Authority of the District Court.
The Warden does not address any of the applicable authorities regarding a district court’s
broad discretion to control discovery and issue protective orders. Instead, the Warden argues that
the District Court’s issuance of the protective order, and the Court of Appeals’ affirmance of that
order, exceeds the authority of these courts under 28 U.S.C. § 2254 and Pitchess v. Davis, 421 U.S.
482 (1975). The Warden’s argument is best summarized as contending that the protective order
amounts to an order dictating the type of evidence that can be introduced at any retrial, and is
therefore an impermissible interference on the state court.
The first problem with the Warden’s argument is that her authorities do not support this
contention. Instead, the Warden’s authorities stand for the proposition that if a petitioner is granted
relief under § 2254, and he is retried for the same offense, a district court cannot interfere in the state
court action until the new trial is completed and the petitioner has exhausted all of his state court
remedies. Pitchess v. Davis, 421 U.S. at 490. Mr. Bittaker has not yet obtained relief, he is not
being retried, and he is not asking the District Court to interfere with any retrial.
The second problem with the Warden’s argument is that nothing in the protective order, or
the Court of Appeals’ decision, precludes any law enforcement agency from seeking to obtain, and
introduce, the same material in a state court. As the Court of Appeals stated:
The courts of California remain free, of course, to determine whether
Bittaker waived his attorney-client privilege on some basis other than his
disclosure of privileged information during the course of the federal
litigation. In addition, if the district attorney is able to obtain the privileged -
materials through a source other than the Attorney General's office, hewould
be free to present them to the state court and seek a ruling o1 their
admissibility. The district court's order simply precludes a party before it
from misusing materials it obtained for a limited purpose by invoking the
court's power of compulsion. We are confident that the state courts will not
feel in the least uncomfortable because a party may not use confidential
information it secured by invoking our power and authority, just as we would
respect a similar order limiting the use of privileged materials obtained
during the course of state court litigation. This 1s comity, not encroachment.
Warden’s Appendix, at A-20 to A-21 (emphasis in original).
As this Court has recognized, a district court retains the authority to control any material
produced pursuant to an F.R.Civ.P. 26(c) protective order. See Seattle Times Co. v. Rhinehart, 467
U.S. at 32-33; Degen v. United States, 517 U.S. at 826, E.1. DuPont De Nemours Powder Co. v.
Masland, 244 U.S. 100, 103 (1917) (‘It will be understood that if, in the opinion of the trial judge,
it is or should become necessary to reveal the secrets to others, it will rest in the judge's discretion
to determine whether, to whom, and under what precautions, the revelation should be made”). This
continuing impact does not exceed the authority of a district court, and 1s not an impermissible
interference with any other court.
Gr The Decision Does Not Impermissibly Interfere With any State Court Proceeding.
The very nature of federal habeas proceedings involves some interference with state court
criminal proceedings. From the statutory authorization to enjoin state court proceedings by issuing
a stay of execution, to the ability to grant relief from a state court conviction or sentence, the Great
Writ ts an interference with state court criminal actions. See 28 U.S.C. § 2251 et. seq.; McFarland
v. Scott, 512 U.S. 849, 857 (1994); Lehman v. Lycoming County Children’s Services Agency, 458
U.S. 502, 516 (1982) ("[t]he federal writ of habeas corpus, represent{s] . . . a profound interference
with state judicial systems and the finality of state decisions”). However, the decision in Bittaker
v. Woodford does not extend this interference in any impermissible manner.
First, the decision does not interfere with any current state court proceeding for the simple
reason that there are no proceedings involving Mr. Bittaker currently pending in any state court.
When this Court decided Younger v. Harris, this Court held that a federal court should neither “stay
[nJor enjoin pending state court proceedings except under special circumstances.” 471 U.S. at 41.
The requirement for pending state court proceedings is axiomatic to Younger, and every decision
cited by the Warden on this issue, involved a federal court's interference in currently pending state
court litigation. See Perez v. Ledesma, 401 U.S. 82, 84 (1971) (the decision “effectively stifle[d]
the then-pending state criminal prosecution”) (emphasis added); Augler v. Helfant,421 U.S. 117,
119 (1975) (request to enjoin state offices from “proceeding with the prosecution of an indictment
~ pending against” the defendant) (emphasis added); and Stefanelli v. Mindard, 342 U.S. 117, 118
(1951) (request to preclude use of a evidence in an upcoming criminal trial). Without pending state
court proceedings, there is no violation of Younger or this Court’s concerns regarding federalism.
Second, the decision does not impermissibly interfere with any possible future state court
proceedings. The protective order applies only to the Warden, who would not be a party at any
retrial. The Court of Appeals specifically recognized that the prosecuting agencies — who are not
parties in this habeas action but would be parties in a retrial — could seek production of the same
materials before a state court under state law. Warden’s Appendix at A-20 to A-21. As of yet, the
prosecution agencies have not sought production of this material before any state court.
Therefore, as the Warden acknowledges, there is a distinct problem with ripeness on this
issue under Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11 (1997) and Asarco Inc.
v. Kadish, 490 U.S. 605, 375-76 (1989). Cert. Petition at 7-8 n.3. Until some prosecution agency
actually seeks production of this material in a state court proceeding, there is absolutely no way to
10
know how the state court would rule on these issues, and no way for this Court to determine if there
has been any improper interference with a state court action.”
D. A Grant of Certiorari is Not Warranted.
The District Court’s issuance of the protective order governing the production of material in
federal court, and the decision of the Court of Appeals recognizing the appropriateness of that order,
~ are unremarkable. This is a routine discovery issue, and does not involve an important question of
federal law. Further, nothing about the District Court's action or the Court of Appeals’ decision
conflicts with relevant decisions of this Court. Accordingly, certiorari is not warranted. Rules of
the Supreme Court of the United States, Rule 10. ~
* The Warden also cites Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J.,
concurring), which discusses Justice Thomas' analysis of Supremacy Clause, and not any holding
ofthis Court. The Warden also cites a California Supreme Court’s decision noting that the court was
“not bound by the decisions of the lower federal courts even on federal questions [although] . . . they
are persuasive and entitled to great weight.” People v. Bradley, 1 Cal. 3d 80, 86 (Cal. 1969). A
decision by the California Supreme Court is not at issue in the petition. However, the Court of
Appeals noted that:
[T]he California Supreme Court, during the course of a state habeas
proceeding, entered an order very similar to the one here. While the order is
not published, and therefore presumably not binding in future cases, it does
seem to strike the same balance among the competing interests as we do.
Significantly, the order specifically bars the use of privileged materials at
petitioner's possible retrial.
Warden's Appendix at A-16 to A-17 (footnotes omitted). That order is discussed in more detail,
infra.
1]
The Court Of Appeals’ Resolution Of The Scope Of The Waiver Of The Attorney-
Client Privilege In A Federal Habeas Corpus Case Where The Petitioner Is Alleging
Ineffective Assistance Of Counsel Does Not Merit Certiorari.
A. The Decision of the Court Below is Correct and in Harmony with Well-Established
Principles of Law.
The en banc Court of Appeals’ unanimous resolution of the nature and scope of
Mr. Bittaker’s waiver of the attomey-client privilege is also an unexceptional application of well-
settled principles of law.
The Court of Appeals identified and analyzed the two types of waivers of the attorney-client
privilege. First, there is the "express waiver" which is accomplished through the actions, even if
inadvertent, of the attorney or the client. Warden’s Appendix at A-8 fn. 4. The second type of
waiver, the "implied waiver," is accomplished through the assertion ofa claim by a client, which puts
the lawyer's performance at issue during the litigation. /¢. This rule stems from what the courts have
called the faimess principle. /d. at A-7. The concept of an implied waiver dates back to 1888, when
this Court decided Hunt v. Blackburn, 128 U.S. 464 (1888) ("When Mrs. Blackburn entered upon
a line of defense which involved what transpired between herself and Mr. Weatherford [her lawyer},
and respecting which she testified, she waived her right to object to his giving his own account of
the matter."). /d. at 470-471; United States v. Amlani, 169 F.3d 1189, 1196 (9th Cir. 1999).
In this case, Mr. Bittaker has asserted a claim of ineffective assistance of counsel, which
compels an implied waiver of the attorney-client privilege in order to properly resolve the facts
hidden behind the privilege. "The privilege which protects attorney-client communications may not
Be
be used both as a sword and a shield." Chevron Corp. v. Pennzoil Co., 974 F 23d 1156, 1162 (9th
Cir.1992); In re Sealed Case, 676 F.2d 793, 809 n.54 (D.C. Cir. 1982).
Further, the Court of Appeals applied the fairness principle to determine that the waiver by
claim assertion ". .. must be no broader than needed to ensure the fairness of the proceedings before
it. Because a waiver is required so as to be fair to the opposing side, the rationale only supports a
waiver broad enough to serve that purpose.” Warden's Appendix at A-10. The Court of Appeals,
in keeping with other courts on this question, reasoned that the scope of such waivers must be
limited to that proceeding and tailored closely to the needs of the opposing party in order to fairly
litigate the claim. /d., and see Kerr v. United States District Court, 426 U.S. 394, 405 (1976)
(recognizing the need to ensure that the "balance between petitioner's claim [ ] of . . . privilege and
the plaintiffs’ asserted need for the documents is correctly struck"); Newburyport Clamshell Alliance
v. Pub. Serv. Co., 838 F.2d 12, 22 (Ist Cir. 1988) (holding that the client need reveal only
information "for which defendants have so far shown a true need and without which they may be
unfairly prejudiced in their defense"); Am/ani, 169 F.3d at 1196 ("only those documents or portions
of documents relating to the [claim asserted by the client] [should be] disclosed").
In deciding the scope of the waiver in the federal habeas context, the Court of Appeals struck
‘a delicate balance between the interests of the state and those of the federal government.” Warden's
Appendix at A-11; see Duckworth v. Eagan, 492 U.S. 195, 211 (1989) (O’Connor, J., concurring).
Balancing the state-created attorney-client privilege and the state prisoner's federal statutory nght
for collateral review of their convictions in federal court under 28 U.S.C. § 2254, the Court of
Appeals decided to impose a narrow waiver rule. /d. at A-11 to A-12. The Court of Appeals
reasoned that a broad waiver rule would inhibit frank attorney-client communications and would
13
cause the attormey to worry about whether their case files or communications would someday be
made available to the prosecution. /d. at A-12. In balancing the state prisoner's federal statutory
right to file a habeas petition and to receive a fair adjudication thereof and the state’s interest in
promoting the ethical obligations underlying the attorney-client privilege, the Court of Appeals held
that:
If [Bittaker] succeeds on any of these claims, it will mean that his trial was
constitutionally defective. Extending the waiver to cover Bittaker’s retrial
would immediately and perversely skew the second trial in the prosecutions’
favor by handing to the state all of the information in petitioner's first
counsel's case file. If a prisoner is successful in persuading a federal court
to grant the wnit, the court should aim to restore him to the position that he
would have occupied, had the first tral been constitutionally error-free.
Warden's Appendix at A-13.
The unanimous Court of Appeals correctly applied well-settled principles of law to determine
that Mr. Bittaker's case involves an implied waiver of the attorney-client privilege ai.. ve Court of
Apeals appropriately determined the scope of the waiver. Accordingly, that decision does not merit
review by this Court. Rules of the Supreme Court of the United States, Rule 10.
B. There is No Clear Conflict Among the Courts of Appeals on These Issues.
The Warden does not recognize the concept of different types of waivers, and refuses to
accept that an implied waiver is different from an express waiver. Instead, the Warden attempts to
create a conflict among the Courts of Appeals by arguing that several courts have rejected the notion
of what she terms a “selective waiver,” and “instead have held that a waiver of the attorney-client
privilege, however accomplished, is complete and permanent, and not subject to limitations." Cert.
Petition at 14.
14
First, the Warden misstates the law. Contrary to the-Warden's contention that most courts
follow the rule that once a waiver is made it is complete and permanent, many courts have found
either an exception or a limitation of the waiver even in express waiver cases. Al/dread vy. City of
Grenada, 988 F.2d 1425, 1434 (Sth Cir. 1993) (finding an exception to the waiver of the pnvilege
when the disclosure is "inadvertent"); AL Group v. Case, Dav & Lynch, 829 F.2d 909,919 (9th Cir.
1987) (same); /n re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989) (same); Diversified Industries,
Inc. v. Meredith, 572 F.2d 596, 604 n.1, 611 (8th Cir. 1977) (en banc) (voluntary disclosure of
information to the SEC resulted only in a limited waiver and that information remained privileged
in subsequent private litigation): /n re von Bulow, 828 F.2d, 103 (2d Cir. 1987) ("[Where . . .
disclosures of privileged information are made extrajudicially and without prejudice to the opposing
party, there exists no reason in logic or equity to broaden the waiver beyond those matters actually
revealed."). In reality, any differences among the courts in resolving these waiver issues is in
keeping with this Court's notation in Upjohn Co. v. United States, 449 U.S. 383, 386 (1981), that
adjudications of the attorney-client privilege mus. be done on a case-by-case basis. Upjohn, 449
U.S. at 386; see also In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993) (declining to
adopt a per se rule that all voluntary disclosures to the government waives work product protection).
Second, the aliegedly conflicting decisions are distinguishable from Mr. Bittaker's case on
both the Jaw and the facts. Seven of the cases that the Warden cites from the First, Second, Third,
Fourth, Eighth, D.C. and Federal Circuits do not involve the situation presented here: an implied
waiver or waiver by claim assertion. instead. these cases involve express waivers of the attomey-
client privilege or the work-product privilege. Six of these cases are both legally and factually
distinct from Mr. Bittaker's, because they involve express waivers accomplished when a corporate
15
entity disclosed privileged documents to a governmental agency pursuant to a subpoena or
voluntarily produced documents in order to cooperate with an investigation instigated by a
governmental agency. Permian Corporation vy. United States, 665 F.2d 1214 (D.C. Cir. 1981)
(disclosure of documents to SEC could not prevent later disclosure of the same documents to the
Department of Energy); /n re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) (previous
disclosure to the United States Attomey and Department of Defense waived attomey-client privilege
and company employee facing indictment was entitled to the documents); United States v. Mass.
Inst. of Technology, 129 F.3d 681 (1st Cir. 1997) (contractor's voluntary disclosure of documents
to the Defense Contract Audit Agency of the Department of Defense forfeited any attorney-client
privilege covering the documents subject to an IRS summons); Westinghouse Elec. Corp. v. Republic
of the Philippines, 951 F.2d 1414 (3d Cir. 1991) (voluntary disclosure of to the SEC and DOJ during
investigations by those agencies waived attorney-client privilege); /n re Steinhardt Partners, L.P.,
9 F.3d 230 (2d Cir. 1993) (voluntary disclosure to the SEC waived work product protection in this
case).
Even the case cited by the Warden as being the only one "in line" with the Ninth Circuit's
decision in this case, Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978), is
distinguishable on the same grounds. Diversified made a voluntary disclosure of documents to the
SEC during a non-public investigation. Ina later lawsuit, a party requested those same documents
contending that the production to the SEC (and to a law firm employed by Diversified), constituted
a waiver of the privilege. An en banc panel of the Eighth Circuit held that the disclosure to the SEC
constituted a limited waiver of the privilege. Thus, the allegedly conflicting United States Courts
of Appeals decisions cited by the Warden are distinguishable, because they involved neither a habeas
16
corpus proceeding nor an implied waiver through assertion of an ineffective assistance of counsel
claim."
As opposed to all of these cases, Mr. Bittaker did not make an express waiver of the privilege
and his status as an indigent state prisoner is certainly different from that of a corporate entity. None
of the parties in the United Staves Courts of Appeals cases cited by the Warden were state prisoners
asserting that their constitutional nght to effective assistance of counsel had been violated. Such a
distinction is important. As Judge Kozinski wrote for the Court of Appeals in this case:
[R Jequiring the petitioner to enter such a broad waiver would force him to the
painful choice of, on the one hand, asserting his ineffective assistance claim
and risking a trial where the prosecution can use against him every statement
he made to his first lawyer and, on the other hand, retaining the privilege but
giving up his ineffective assistance claim. This would violate the spirit, and
perhaps the letter, of Simmons v. United States, 390 U.S. 377, 394 (1968)
(footnote omitted). It is no answer to say that Bittaker created this dilemma
for himself -- that he was the one who voluntarily "chose" to challenge his
conviction on grounds of ineffective assistance. The Constitution guarantees
Bittaker the right to effective assistance of counsel at trial, Strickland v.
Washington, 466 U.S. 668, 686 (1984), and Congress has provided him an
avenue to claim that his constitutional nghts were violated, 28 U.S.C.§ 2254.
As one of our sister circuits has recognized in a different context, one may be
"a ‘voluntary’ party only because there is no other means of protecting legal
rights... . The scope of required disclosure should not be so broad as to
effectively eliminate any incentive to vindicate [one's] constitutional
right[s].". Greater Newburyport Clamshell Alliance, 838 F.2d at 21-22.
° In another case cited by the Warden, Genetech, Inc. v. United States Internal Trade
Commission, 122 F.3d 1409 (Fed. Cir. 1997), although a protective order was in place, the privilege-
holder inadvertently released privileged documents. The court held that the protective order did not
prevent a waiver because the disclosure was the result of an inadequate screening process. /d. at
1418. The waiver in Genetech was therefore an express waiver and the United States Internal Trade
Commission could obtain those documents. In Mr. Bittaker's case, it is appropriate to impose a
limitation on waiver in a situation where the court has ordered disclosure because of his assertion
ofaclaim. This is especially true here when, as opposed to the party in Genetech, Mr. Bittaker took
all reasonable steps to carefully ensure that the scope of the waiver was clearly defined before the
information was disclosed. See footnote I.
Warden's Appendix at 14-16.
There is simply no conflict among the U.S. courts of appeals on the issue of the scope of a
habeas corpus petitioner's waiver of the attorney-client privilege in the federal habeas corpus claim
assertion context. As the Court of Appeals in this case correctly points Out in its opinion, there are
not many cases like the one at bar "except for a small handful onginating in California, see Oshand,
290 F.3d at 1042-43; Anderson, 232 F.3d at 1099-100; McDowell v. Calderon, 197 F.3d 1253, 1255-
56 (9th Cir. 1999) (en banc) (per curiam)." Warden's Appendix at 21. As the Court of Appeals in
this case identified, the closest United States Courts of Appeais case that "even remotely raises" the
same issue is United States v. Suarez, 820 F.2d 1158 (11th Cir. 1987). Id. In that case, after a
defendant sought to withdraw his guilty plea by asserting that his attorney gave him incompetent
advice, the attorney testified at the evidentiary hearing on the matter. The — expressly
waived the attorney-client privilege at the hearing and did not preserve for appeal what the court
deemed the "interesting" issue regarding the Simmons argument. /d. at 1161.
No other U.S. Court orn has considered the issue regarding the attempted use by the
prosecution of privileged information obtained as a result of federal discovery procedures at a
defendant's retrial. However, several state wneme courts have analyzed the issue with respect to
discovery obtained through state habeas proceedings, and all reached the same resolution as the
Court of Appeals in this case.
In /n re Gallego, the California Supreme Court issued an unpublished protective order of
attorney's files in a habeas corpus case disallowing the respondent from using the documents or any
information contained therein against the petitioner during any future proceeding, including a retrial.
See Warden's Appendix at A-16n.8. Additionally, two other state courts of last resort, the Supreme
18
Ancien ome t
Courts of Pennsylvania and Georgia, have specifically addressed this issue and have reached the
same conclusion as the Court of Appeals did in Mr. Bittaker's case. In Waldrip v. Head, 272 Ga.
572, 532 S.E.2d 380 (2000), the Supreme Court of Georgia held that by bringing an ineffective
assistance of counsel claim, a state prisoner impliedly waived the attorney-client privilege and the
attomey work-product doctrine, but that a protective order was appropriate to limit the scope of such
waiver to the persons needed to assist in rebutting the claim of ineffectiveness. Waldrip, 272 Ga.
at 573. And, in Commonwealth v. Chmeil, 558 Pa. 478, 511, 738 A.2d 406 (1999), the Pennsylvania
Supreme Court spoke to the difficult situation where a criminal defendant may choose not to seek
to enforce the effective representation of counsel to which he ts entitled because he fears that the
price of success on habeas review will be his compelled self-incrimination, through the testimony
of prior counsel, upon retrial. Commonwealth, 558 Pa. at 508-509. The Pennsylvania Supreme
Court held that:
The policy inherent . . . [in] judicial enforcement of the attorney-client
privilege, as it implicates a defendant's exercise of the right to the effective
assistance of counsel and to freedom from compelled self-incrimination,
restricts the use as well as the scope of permitted disclosures. Just as an
attorney may not respond to allegations of ineffectiveness by disclosing client
confidences unrelated to such allegations, so the client confidences properly
disclosed by an attorney at an ineffectiveness hearing may not be imported
into the client's subsequent trial on criminal charges.
Commonwealth, 558 Pa. at 511. Thus, three state supreme courts have found that the implied waiver
of the attorney-client pnvilege by a habeas petitioner's assertion of an ineffective assistance of
counsel claim is limited in scope to that habeas proceeding.’
” To the best of Mr. Bittaker's knowledge, the only other case addressing waiver of rights
in the habeas corpus context is a case arising out of a Court of Appeals in the state of Missouri. That
court also held in line with the Court of Appeals’ decision in Mr. Bittakcr's case. State v. Samuels,
(continued...)
19
The Court of Appeals’ opinion does not present a conflict with a decision of any other Court
of Appeals, and its reasoning is in line with three opinions issued by state courts of last resort. Thus,
the issue does not present this Court with the criteria required for review set forth in the Rules of the
United States Supreme Court, Rule 10(a).
The Ruling Of The Court Of Appeals Is Irrelevant To The Outcome Of This Case.
Even where conflict exists in the circuits, “[1]f the resolution of a clear conflict is irrelevant
to the ultimate outcome of a case before the Court, certiorari may be denied.” ROBERT L. STERN,
EUGENE GRESSMAN, STEVEN M. SHAPIRO & KENNETH S. GELLER, SUPREME COURT PRACTICE,
§ 4.4 at 231 (8th Ed. 2002).
The resolution of the protective order issue in this case is completely irrelevant to the
substantive merits of the litigation. A decision on the merits of Mr. Bittaker’s habeas claims has not
yet been reached by the District Court, an. , even when the merits are reached, the outcome will not
be affected by the protective order. The practical effect of the Court of Appeals’ decision on the
scope of Mr. Bittaker's waiver of the attorney-client privilege will not be known unless and until
Mr. Bittaker wins habeas relief in federal court and the state retries him -- a purely hypothetical
” (...continued)
965 S.W.2d 913 (Mo. App. 1998) ({under the rationale in Simmons] "when a defendant testifies at
a post conviction hearing in support of a motion alleging ineffective assistance of counsel where the
defendant's testimony is indispensable in overcoming the heavy presumption of counsel's
competence, trial counsel’s testimony may not be admitted against the defendant at a subsequent trial
to prove its incriminating content on the ultimate issue of guilt, unless the defendant makes no
objection").
20
——E—EeEeEeee
situation at the present time. There is currently no controversy regarding the admissibility of any
particular piece of evidence in any court.
Additionally, the Warden has been unable to document that the protective order has caused
any prejudice to her ability to litigate the habeas petition. The protective order envisions that the
Warden may seek leave to provide protected material to anyone who she needs to help her litigate
the habeas action, and the Warden has already taken advantage of those provisions. See Warden's
Appendix at A-3 n.1 (“[dJisclosure of the contents of the documents and the documents themselves
may [] be made. . . [with] an order from” the District Court) (see also footnote 1); and Respondent's
Appendix C (Stipulation and Order Granting Warden Leave to Produce a Copy of Petitioner's
Deposition Transcript to Mental Health Expert); see also Warden's Appendix at A-5 to A-6 & n.3.
The Warden’s failure to demonstrate the existence of a dispositive conflict on the issue of
the scope of an implied waiver of the attorney-client privilege in a federal habeas corpus proceeding
justifies denial of certiorari. Moreover, resolution of the waiver issue by this Court would make no
difference in either the Warden’s ability to litigate Mr. Bittaker’s claims, or the substantive outcome
of the case.
CONCLUSION
The Warden’s certiorari petition raises no worthy issues for review. The Bittaker v.
Woodford decision appropriately applied long-established principles relating to civil discovery and
the attorney-client privilege and the work product doctrine.
While the Warden alleges that the Court of Appeals’ holding creates a conflict with the
decisions of other Circuits that justifies ceriw. ari, this contention lacks merit. This issue is irrelevant
to the ultimate outcome of this case, since the en banc court's resolution of the protective order issue
is sufficient to justify its denial of the Warden's requested relief on collateral appeal.
For all of these reasons, the Warden’s Petition for Writ of Certioran should be denied.
Dated: October 9, 2003 Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
Deputy Federal Public Defender
Counsel for Respondent
> ee aa
a+
—— eee eee
BILL LOCKYER
Attorney General of the State of
California
ROBERT R. ANDERSON, Acting
Chief Assistant Attorney General
MARC E. TURCHIN, Acting
Senior Assistant Attorney General
DONALD E. DE NICOLA
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General
State Bar No. 172106
300 South Spring Street
Los Angeles, CA 90013
Telephone: (213) 897-2370
Fax. (213) 897-2806
Attorneys for Respondent
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
LAWRENCE S. BITTAKER, CV 91 1643-WMB
Petitioner, NOTICE OF MOTION AND
MOTION TO DISMISS ATTORNEY
Vv. GENERAL BILL LOCKYER AS A
PARTY TO THIS ACTION
JEANNE WOODFORD, Warden of
California State Prison at San Hearing: July 16, 2001
Quentin, et al., Time: 10:00 a.m.
Courtroom: 9
Respondent . Judge: Hon. Wm.
Matthew Byrne,
Jr.
TO PETITIONER AND TO HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT, on July 16, 2001, at 10:00 a.m., or as
soon thereafter as the matter may be heard, in Courtroom 9 of the
United States District Court, located at 312 North Spring Street,
Los Angeles, California, respondent will move the Honorable Wm.
Matthew Byrne, Jr., Judge of the United States District Court, for
an order dismissing the California Attorney General as a party to
this action. This motion will be made on the ground that the
Attorney General iS not a proper party to this action, as he does
| Appendix A
L
. wenmt
not maintain “custody” over petitioner. —
This motion will be based on this notice, the attached
memorandum of points and authorities, and those papers previously
lodged with the Court and referenced in the pleadings, including
the transcripts of record from petitioner's trial, the pleadings
and other records on file herein, and such other and further
argument and evidence as may be introduced at the hearing on the
motion. +/
Dated: June 19, 2001
Respectfully submitted,
BILL LOCKYER
Attorney General of the State of California
ROBERT R. ANDERSON, Acting
Chief Assistant Attorney General
MARC E. TURCHIN, Acting
Senior Assistant Attorney General
DONALD E. DE NICOLA
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General
Attorneys for Respondent
LA1991XW0003
Bi Pursuant to applicable rules, respondent noticed this
motion for hearing. However, based on the subject matter addressed
herein, respondent does not believe any hearing is necessary, and
that the Court can rule on the motion based on the moving papers,
and any opposition filed in response thereto.
oa
le alll
seme
MEMORANDUM OF POINTS AND AUTHORITIES
ARGUMENT
THE CALIFORNIA ATTORNEY GENERAL IS NOT A PROPER
PARTY TO THIS ACTION AND SHOULD THEREFORE BE
DISMISSED AS A PARTY
In his original petition for writ of habeas corpus,
petitioner named as respondents the warden of San Quentin (then
Daniel Vasquez), as well as the Attorney General for the State of
California (then Daniel Lungren). Because petitioner is in the
custody of the warden of San Quentin Prison, but not the
California Attorney General, the Attorney General should be
dismissed as a party to this action.
A habeas corpus petitioner must name as respondent the person
having custody of him. See generally Rule 2(a), 28 foll. U.S.C.
§ 2254; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894, (9th Cir.
1996); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.
1992). Typically, this person is "the warden of the facility in
which the petitioner is incarcerated." ey v. California
Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
The Attorney General of the State of California is generally
named as an additional respondent, in accordance with the
mandates of Rule 2, subsections (b), of the Rules Governing
Section 2254 Cases in the United States District Courts. 28 foll.
U.S.C. § 2254 Rule 2(b). However, the purpose of naming the
Attorney General concerns a situation where the petitioner will
be subject to future custody, and the actual custodian is not
presently known. Id. Under such circumstances, the Attorney
General is in the best position to inform the court who the
proper party respondents are. Adv. Comm. Notes, Rule 2(b) .2’
Rule 2(b) does not now, nor has it ever, applied to
petitioner. Since being convicted, he has been incarcerated at
San Quentin Prison, and in the custody of the warden of that
penal institution. Petitioner improperly named the California
Attorney General as a party to this action when he filed his
Original petition. The Attorney General does not hold petition
in his custody and would not be the official who could comply
with any grant of the writ. Thus, the Attorney General should be
dismissed as a party from this case.
a "It is also provided that the attorney general of the
state of the judgment as well as the state officer having actual
custody of the petitioner shall be named as respondents. This is
appropriate because no one will have custody of the petitioner in
the state of the judgment being attacked, and the habeas corpus
action will usually be defended by the attorney general. The
attorney general 1s in the best position to inform the court as to
who the proper party respondent 1s. If it 1S not the attorney
general. he can move for a substitution of party.” Adv. Comm.
Notes, Rule 2(b), emphasis added.
1 CONCLUSION
2 Accordingly, respondent respectfully asks that the Attorney
3}General of the State of California be dismissed as a party from
4uthis action.
S Dated: June 19, 2001
6 Respectfully submitted, |
7 BILL LOCKYER
Attorney General of the State of California
8 ROBERT R. ANDERSON, Acting
5 Chief Assistant Attorney General
MARC E. TURCHIN, Acting
10 Senior Assistant Attorney General |
DONALD E. DE NICOLA
il Supervising Deputy Attorney General
: A. Scott Hay wat (h 168)
13
A. SCOTT HAYWARD
14 Deputy Attorney General
16 Attorneys for Respondent
16 | LA1991xXW0003
ui
TION OF RVICE
Case Name: LAWRENCE S. BITTAKER v. JEANNE WOODFORD, WARDEN
Case Nos.: CV 91-1643-WMB
I declare:
I am employed in the Office of the Attorney General, which is
the office of a member of the Bar of this Court at which
member's direction this service is made. I am 18 years of age
or older and not a party to the within entitled cause; I am
familiar with the business practice at the Office of the
Attorney General for collection and processing of
correspondence for mailing with the United States Postal
Service. In accordance with that practice, correspondence
placed in the internal mail collection system at the Office of
the Attorney General is deposited with the United States Postal
Service that same day in the ordinary course of business.
On June 19, 2001, I placed the attached
NOTICE OF MOTION AND MOTION TO DISMISS ATTORNEY
GENERAL BILL LOCKYER AS A PART TO THIS ACTION
in the internal mail collection system at the Office of the
Attorney General, 300 S. Spring Street, Los Angeles, California
90013, for deposit in the United States Postal Service that
same day in the ordinary course of business, in a sealed
envelope, postage thereon fully prepaid, addressed as follows:
MARGO A. ROCCONI
DEPUTY FEDERAL PUBLIC DEFENDER
321 EAST SECOND STREET
LOS ANGELBS, CA 90012-4206
C. RENEE MANES
DEPUTY FEDBRAL PUBLIC DEFENDER
321 EAST SECOND STREET
LOS ANGELES, CA 90012-4206
I declare under penalty of perjury che foregoing 1s true
and correct and that this declaration was executed on
June 19, 2001, at Los Angeles, California.
Btrine K fagaey
Declarant NS
LAL991XWO903
|
—
oO wornyna wn &- WY WN
nv —- &
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LAWRENCE S. BITTAKER,
Petitioner,
Vv.
JEANNE WOODFORD, Warden of
California State Prison at
San Quentin,
Respondent.
Attomey General Bill Lockyer is hereby DISMISSED as a party to this action
without prejudice. See Rule 2(a) of the Rules Governing Section 2254 Cases in the
United States District Courts.
IT IS SO ORDERED.
Dated: August _\_, 2001.
FILED
CLERK, U.S. DISTRICT COURT
AUG 1 20
CENTRAL DISTRICT OF CALIFORNIA
BY DEPUTY
CASE NO. CV 91-1643 WMB
DEATH PENALTY CASE
ORDER RE: RESPONDENT’S
MOTION TO DISMISS ATTORNEY
GENERAL BILL LOCKYER AS A
PARTY TO THIS ACTION
lo-Prunton Mme
United States District Judge
58
Appendix B
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BILL LOCKYER
Attorney General of the Strate of
California
ROBERT R. ANDERSON FILED
Chief Assistant Attorney General CLEAK, US DISTRICT COUAT
PAMELA C. HAMANAKA
Senior Assistant Attorney General
CAROL F. JORSTAD JUL TE 2
Deputy Attorney General 719 0%
A. SCOTT HAYWARD CENTRAL OIS ape or Chee
Deputy Attorney General DEPUTY
State Bar No. 172106
»- 300 outh Spring Street
- Ros ngeles, CA 90013
ofelephone: (213) 897-2370 a SS
";BAx: |(213) 897-2806 “.
Attorneys for Respondent oa —_
’ Pa ¢ ——_
e IN THE UNITED STATES DISTRICT COURT jyj09 ——
ee san Only —_
. FOR THE CENTRAL DISTRICT OF CALIFORNIA” |
eh |
LAWRENCE S. BITTAKER, CAPITAL CASE |
Petitioner, CV 91-1643 WMB
VV STIPULATION AND )
ORDER GRANTING RESPONDENT
LEAVE TO PRODUCE A COPY OF
JEANNE WOODFORD, Warden of PETITIONER’S DEPOSITION
California State Prison at San TRANSCRIPT TO MENTAL
Quentin, HEALTH TENTEQED GN ICMS
ENTERED CN ICMS |
Respondent. .
* }
JUL 22 Me
WHEREAS, Petitioner has filed a Second”
Writ of Habeas Corpus which alleges in Claim Two that he was
incompetent to plead or be tried for capital murder in 1981; |
WHEREAS, the parties agree that, by doing so, Petitioner has
placed at issue his mental state during the time of his 1981 trial;
WHEREAS, Petitioner's alleged incompetence to plead or stand
trial as set forth above was a subject of inquiry during
Petitioner’s May 30, 2002, deposition;
. ab
Appendix C
Ce ema
Y &
THEREFORE, IT IS HEREBY STIPULATED by and between Petitioner
Lawrence S. Bittaker, by and through his attorneys of record, and
Respondent Jeanne Woodford, by and through the Attorney General of
the State of California, as follows:
For purposes of defending against Claim Two in the Second
Amended Petition for Writ of Habeas Corpus, Respondent may produce
a copy of Petitioner's May 30, 2002, deposition transcript to a
mental health expert who is assisting Respondent in that regard.
The mental health expert will be provided with a copy of the May
10, 2002, protective order, which makes confidential said
deposition transcript, and will be instructed by counsel for
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28
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Respondent to use said transcript only in a manner consistent with
the terms of the protective order.
Respectfully Submitted,
DATED: July Lé , 2002 BILL LOCKYER
Attorney General of the State of
California
ROBERT R ANDERSON
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
CAROL F. JORSTAD
Deputy Attorney v3
SCOTT HAYWARD,’
© Seay Attorney General
Attorneys for Respondent
DATED: July IC , £002 MARIA E. STRATTON
Federal Public Defender
C. RENEE MANES
MARGO ROCCONI
DEAN GITZ
Deputy Federal Public Defenders
py: C benee Menrey
C. RENEE MANES
} Ry R-SecrT (8 YwO4))
Att
rneys for Petitioner
IT IS SO ORDERED.
!
| 9 be 16 tee}
DATED: » £002. :
HON. WM. MATTHEW BYRNE, JR.
UNITED STATES MAGISTRATE JUDGE
x Punquant” Jb Ms Mares 'y tekplton. aaa anal
3
26
27
w c
DECLARATION OF SERVICE
Case Name: LAWRENCE S. BITTAKER v. JEANNE WOODFORD, WARDEN
Case Nos.: CV 91-1643-WMB
I declare:
I am employed in the Office of the Attorney General, which :s
the office of a member of the Bar of this Court at which
member's direction this service is made. I am 18 years of age
Or older and not a party to the within entitled cause; I am
familiar with the business practice at the Office of the
Attorney General for collection and processing of
Correspondence for mailing with the United States Postal
Service. In accordance with that practice, correspondence
placed in the internal mail collection system at the Office of
the Attorney General is deposited with the United States Postal
Service that same day in the ordinary course of business.
On July 17, 2092, I placed the attached
STIPULATION AND [PROPOSED] ORDER GRANTING RESPONDENT
LEAVE TO PRODUCE A COPY OF PETITIONER’S DEPOSITION
TRANSCRIPT TO MENTAL HEALTH EXPERT
in the internal mail collection system at the Office of the
Attorney General, 300 S. Spring Street, Los Angeles, California
90013, for deposit in the United States Postal Service that
same day in the ordinary course of business, in a sealed
envelope, postage thereon fully prepaid, addressed as follows:
MARGO A. ROCONNI
C. RENEE MANES
DEAN GITS
DEPUTY FEDERAL PUBLIC DEFENDERS
321 EAST SECOND STREET
LOS ANGELES, CA 90012-4206
I declare under penalty of perjury the foregoing is true
and correct and that this declaration was executed on
July 17, 2002, et Los Angeles, California.
po K. Logan,
Declarant qd
LA1991XwW0003
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