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June 28, 2011
ALBERT HAYES,PLAINTIFF,v.J.E. TILTON,DEFENDANT.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING A CERTIFICATE OF APPEALABILITY; DENYING PETITIONER'S MOTION FOR PLEADING; DENYING PETITIONER'S MOTION TO APPOINT COUNSEL AND/OR DISCOVERY PROCESS [Dkt. Nos. 70, 73.] RULING ON PENDING OBJECTION
Petitioner Albert Hayes ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Leo. S. Papas submitted a report and recommendation ("Report") recommending that the petition be denied in its entirety. Petitioner filed objections to the report and recommendation on June 1, 2009. The case was transferred to the undersigned judge on March 25, 2011. After a thorough review of the issues, the documents presented, and objections filed, the Court ADOPTS the Magistrate Judge's report and recommendation denying the petition for writ of habeas corpus. The Court also DENIES a certificate of appealability and DENIES Petitioner's motion for ruling on pending objection pleading as MOOT. Lastly, the Court DENIES Petitioner's motion to appoint counsel and/or discovery process as MOOT.
On December 4, 2003, Petitioner represented himself at trial and was convicted by jury of one count of forcible rape in violation of California Penal Code ("Penal Code") section 261(a)(2); one count of assault with intent to commit rape in violation of Penal Code section 220; and one count of assault by means likely to produce great bodily injury in violation of Penal Code section 245(a)(1). (Notice of Suppl. Lodgment 1 at 623-24, 626.) The jury also found true all prior conviction allegations. (Id. at 632-38.)
On March 15, 2004, Petitioner, represented by counsel at this time, filed a motion for a new trial based on a claim that the prosecution failed to make timely disclosure of notes of a police detective which were favorable to the defense. (Id. at 472-80.) On March 29, 2004, the trial court denied the motion. (Id. at 642.) The trial court sentenced Petitioner to state prison for twenty-five years and enhanced his sentence by fifteen years for his three prior serious felony convictions. (Id. at 653.)
Petitioner appealed his conviction to both the California Court of Appeal and the California Supreme Court. (Lodgments 1, 4.) Both of his appeals were denied on December 29, 2005 and April 12, 2006, respectively. (Lodgments 3, 5.) Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal on April 17, 2005, which was denied on May 18, 2005. (Suppl. Lodgments 5, 6.) He filed a petition for writ of habeas corpus in the California Supreme Court on June 13, 2005 which was denied on May 10, 2006. (Suppl. Lodgments 7, 8.) Petitioner filed another petition for writ of habeas corpus in the court of appeal on May 12, 2006. (Lodgment 9.) That petition was denied on July 7, 2006. (Lodgment 10.) He then filed a petition for writ of habeas corpus in the California Supreme Court on July 19, 2006. (Lodgment 11.) The California Supreme Court denied the petition on February 7, 2007. (Lodgment 12.)
On March 21, 2007, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Dkt. No. 1.) On June 25, 2007, Respondent filed an answer. (Dkt. No. 25.) Petitioner filed a traverse on April 10, 2008. (Dkt. No. 42.) On April 10, 2008, the Magistrate Judge issued a report and recommendation denying the petition for writ of habeas corpus. (Dkt. No. 41.) Petitioner filed his objections to the Report on June 1, 2009. (Dkt. No. 65.) On March 25, 2011, the case was transferred to the undersigned judge. (Dkt. No. 71.) On May 10, 2011, Petitioner filed a motion for ruling on pending objections. (Dkt. No. 73.)
In his petition, he alleges three claims: (1) a violation of his due process rights for the prosecution's untimely disclosure of evidence; (2) a violation of his due process rights for the denial of participation in appellate review; and (3) ineffective assistance of counsel on appeal.
Factual Background
The following factual background is taken from the Court of Appeal opinion in People v. Hayes, unpublished opinion (Cal. Ct. App., 4th Dist., Div. 1, December 29, 2005). The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1).
Patricia, a resident of Bell Hotel in downtown San Diego, testified that about 8:30 p.m. on March 21, 2003,*fn1 she was outside the hotel talking to a White male (Robert Rohena) and a Black male. Patricia had met Rohena before, but she had not previously met the other man. During the conversation, Patricia learned that the men had been roommates in room four of the Bell Hotel, but the Black male had just moved out of the hotel that day. After talking for about five to 10 minutes with the two men, Patricia walked down the street with the intention of panhandling for money to buy beer.
When she was about a block away from the hotel, she saw the Black male again and he asked her if she wanted to smoke some "crack." Patricia walked with him for about a block, but because she started "getting some really bad vibes from him," she told him she did not "want to do that with [him]." When they reached the corner of a fence near a freeway ramp, she started "feeling really like [she] was in danger." She wanted to leave the area, but the man grabbed her hand and told her to sit down. They started arguing, and when she refused to sit down he pulled her down by the arm and slammed her to the ground. She asked, "What the hell is going on?" He told her to "[s]hut the hell up." She was resisting him, and he hit her on the face with something hard that felt like a brick or a rock. She felt that she had better do what he said or he would "do something more" to hurt her.
Patricia asked if she could at least sit on a mattress that was leaning against the fence. The man pulled the mattress down to the ground and let her sit on it. He told her to pull down her pants. She complied, and the man had sexual intercourse with her. At one point during the rape, she saw someone standing by a fence on the other side of the street. She started screaming to get the person's attention. Her assailant told her to shut up and choked her until she "blanked out for a bit" and stopped yelling. After the man finished and stood up, Patricia pretended like nothing had happened because she "wanted to live." As they walked back down the street, the man stated, "You sure you don't want me to give you any money? I'll give you $100." Patricia responded, "I don't want your damn money." Prior to the rape, they had not discussed exchanging money for sex, and she did not smoke rock cocaine with him or acquire the drug from him.
The man left the area and Patricia returned to the Bell Hotel. As she walked back to the hotel, she had blood in her mouth and could feel her face swelling up. After Patricia arrived at her room and told her boyfriend what had happened, she and her boyfriend went to a hotel manager Diedre Grant's office. Patricia told Grant that she thought the person who attacked her was "that Black guy" who had just moved out of room number four. Grant showed Patricia a copy of Hayes's picture on his transit card, and Patricia stated that he was her attacker. Grant called 911. Grant testified that about 10:30 or 11:00 p.m. on March 21, Patricia and her boyfriend came to the manager's apartment. Patricia was a "bloody mess." She was bleeding from her nose and mouth, and her face was swollen and distorted. She was crying and hysterical and told Grant she had been raped by the "Black man in room four."
After reporting the rape, Patricia was transported by ambulance to the hospital. The examining nurse testified that Patricia had "massive facial trauma," consisting of abrasions and bruising on the entire left side of her face; a laceration on the left side of her tongue consistent with having been hit in the face with a hard object such as a brick; and a vaginal laceration consistent with nonconsensual intercourse.
DNA testing revealed a match between Hayes's DNA and semen found in Patricia's vagina.
Hayes's Defense Testifying on his own behalf, Hayes stated that on March 21, he was moving out of the Bell Hotel to the Center City Hotel because the Bell Hotel was plagued by drug users. Hayes testified he did not use drugs, and that he worked for an organization called Christ Missionary that solicited funds to assist the homeless and other individuals in need. At about 3:30 p.m. on March 21, Hayes left the Bell Hotel and went to a phone booth to call his sisters to ask them to come help transport his possessions to his new hotel room. After making the phone calls, at around 4:00 p.m. Hayes was walking back to the Bell Hotel when he saw Rohena walking up the street and Patricia coming out of the hotel.
Hayes, Rohena, and Patricia all arrived at the corner of 15th and K Streets by the Bell Hotel. Rohena had been Hayes's roommate in room four of the Bell Hotel. Hayes spoke with Rohena, telling him that he was moving out of the Bell Hotel. Patricia briefly participated in the conversation. All of a sudden Patricia, who smelled strongly of alcohol, started asking for money. Rohena promptly walked away into the Bell Hotel, and Hayes angrily told Patricia to get away from him and to clean herself up and get a job. Hayes testified that Patricia abused drugs and alcohol, panhandled for money, and was out all hours of the night. When Hayes told Patricia to get away from him, she walked away and went to a nearby liquor store. After Hayes's sisters and some friends helped him move to the Center City Hotel, Hayes returned to the Bell Hotel at around 7:00 p.m. to retrieve some property he had forgotten in his room. Between 7:00 and 7:30 p.m., he was standing outside the Bell Hotel talking to Rohena. He saw Patricia come around the corner from the other side of the hotel, where she was talking to other people, including a "black guy." Patricia came and spoke to Rohena. She then went and smoked rock cocaine with a "Black guy" who was a drug dealer and whose name was A.C., or A.P., or William. This was the last time Hayes saw Patricia on the night of March 21. Hayes testified that he never touched or hit Patricia, and he did not have sex with her.
After finishing his conversation with Rohena at around 7:30 p.m., Hayes left the area and took the trolley back to the Center City Hotel. He stayed in his room about 10 to 20 minutes, and then went to his sister's residence at another downtown hotel near First and Broadway, and stayed there about five or 10 minutes. Next, he took the bus and trolley to Chula Vista, arriving at the Christ Missionary shelter at about 8:00 p.m. From Chula Vista, he was transported in a van to northern San Diego county to solicit funds for the charity. He worked from about 8:30 p.m. until about 9:15 p.m., and arrived back at the Christ Missionary shelter at around 9:40 p.m. He then took the trolley and bus and returned to his sister's home at about 10:00 p.m. He ate dinner at his sister's home and stayed there the rest of the night.
Hayes called several witnesses, including his sister and work colleague, to corroborate his alibi defense and to confirm that the Bell Hotel was in an area rampant with prostitution and illegal drug usage. (Lodgment 3 at 2-6.)
A. Scope of Review of Magistrate Judge's Report and Recommendation
The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). A district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
B. Scope of Review of Federal Habeas Petition Pursuant to 28 U.S.C. § 225428 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). As amended, the AEDPA now reads: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding. 28 U.S.C. § 2254(d) (emphasis added).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2).
See Williams v. Taylor, 529 U.S. 362, 403 (2000). The threshold question is whether the rule of law was clearly established at the time petitioner's state court conviction became final. Id. at 406. Clearly established federal law, as determined by the Supreme Court of the United States "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 71 (2003). However, Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help us determine what law is 'clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Only after the clearly established Federal law is identified can the court determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of" that clearly established Federal law. See Lockyer, 538 U.S. at 71-72.
A state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams, 529 U.S. at 405-406. "A state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable." Id. at 409. Further, a state court's decision results in a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (citations omitted).
In making such a determination under AEDPA, the court looks to the state's last reasoned decision. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.
When a federal habeas court is faced with reviewing a state court denial for which there is no reasoned decision, however, the deferential standard under § 2254(d) cannot be applied because there is "nothing to which we can defer." Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). Under such circumstances, "[f]ederal habeas review is not de novo . . . but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
It is only when a state court could not reach the merits of a claim (e.g. because a procedural bar prevented it) that "AEDPA's standard of review does not apply." Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002). In such cases, when it is clear that the "[state] courts did not reach the merits of [the petitioner's constitutional] claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to 'any claim that was adjudicated on the merits in State court proceedings' "; "[i]nstead, the claim is reviewed de novo." Cone v. Bell, ------ U.S. --------, 129 S. Ct. 1769, 1784 (2009) (quoting 28 U.S.C. § 2254(d)); see also Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
C. Claim One: Untimely Disclosure of Evidence
In the petition, Petitioner claims that the late disclosure of police notes violated his due process rights. The first piece of evidence was discovered during the prosecutor's case-in-chief which was a note by Officer John Serrano that stated, "I was there. It was consensual." (Report at 13.) The second piece of evidence was also within Officer Serrano's notes which stated "I didn't report on time." (Id. at 18.)
In the Report, the Magistrate Judge concluded that the claim of the untimely disclosure of evidence was not entitled to habeas relief. Petitioner objects to the Magistrate Judge's findings and contends that the Magistrate Judge erred by relying on the trial and appellate courts findings and that both courts failed to weigh the prejudice to him as well as failing to consider his alternatives at trial. (Pet'r Obj. at 4.) Petitioner asserts that the Magistrate Judge should have concluded that the trial court should have sua sponte granted a mistrial with Petitioner's permission, or in the alternative, consulted with Petitioner regarding the proper course of action. (Id.) As to the second piece of evidence, Petitioner argues that the Magistrate Judge erred by adopting the appellate court's findings that the victim was subject to recall. (Id.) Petitioner also argues that the information was necessary to prepare his defense and if he had been given the evidence prior to trial he would have prepared his defense differently. (Id. at 8.)
Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that the "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. In order to show a Brady violation, first, the evidence must be favorable to the accused because it is either exculpatory or impeachment material. Strickler v. Greene, 527 U.S. 263, 280 (1999). Second, the evidence must have been either willfully or inadvertently suppressed by the State and third, there must be prejudice from the failure to disclose the evidence. Id. at 281-82. In a case of the late disclosure of favorable evidence, the court looks at whether the evidence was revealed in time for the defendant to make use of it. Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008) (Brady evidence can be handed over on the eve of trial or even during trial so long as the defendant is able to use it to his or her advantage.); United States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006).
On September 29, 2003, at a pretrial discovery proceeding, the court stated that Petitioner was entitled to police notes. (RT at 271-72.) At the time, the prosecution stated that he and his assistant checked with Officer Serrano about raw notes, and Serrano stated he did not have any notes. (Id.) At the proceeding, the trial court directed the prosecution to contact all police officers involved in the case to inquire whether any notes existed. (Id. at 273)
At trial, during the prosecution's case-in-chief when the defendant was cross-examining Officer Serrano, it was revealed that he possessed some original notes of his interview with the victim, Patricia H. (RT at 1158.) One of the entries in the note taken on March 26, 2003, stated "I was there - It was consensual." (CT at 493; RT at 1188.) The notes were provided to Petitioner and the court granted his request for a five-minute recess in order to examine them. (RT at 1160-61.) After having reviewed the notes, Petitioner wanted to proceed and used the notes to cross-examine Serrano. (RT at 1167-69; 1217-18.) Serrano testified that he thought the note consisted of a list of questions, he wanted to ask about the case but could not specifically remember about the statement at issue. (Id.) He testified that he only interviewed the hotel manager and the victim. (Id.) He did not think the statement at issue referred to anything specific that anybody told him and he did not know where he got that statement from. (Id.)
The issue as correctly determined by the Magistrate Judge is whether there was prejudice from the failure to disclose the evidence. The court of appeal agreed that a discovery violation occurred but concluded that a new trial was not warranted because if the consent note had been disclosed prior to trial, there was no reasonable probability the outcome of the trial would have been different. (Lodgment 3 at 9-10.) The court of appeal held that the "late disclosure of these items did not diminish Hayes's opportunity to develop and present the jury with a consent defense or otherwise interfere with his ability to control selection of his defense strategy." (Id. at 2.) The court of appeal provided a detailed explanation as to why the late disclosure of the note was not prejudicial and why the defendant was not precluded from bringing up alternative theories for his defense. (Id. at 13.) The court explained that when the existence of the note was revealed, Petitioner had not presented his opening statement to the jury, had not himself testified and had not called his alibi witnesses. (Id. at 13-15.) Therefore, Petitioner had the option to either present a consent defense or move for a mistrial. (Id. at 16.) However, the defendant did not take advantage of either option. (Id. at 17.)
As to the second note, which stated, "I didn't Report on time," (Pet. at 7-a.), the Magistrate Judge found the claim had not been exhausted because his appellate counsel refused to raise the issue and he was not allowed to file a supplemental appeal with the appellate court. (Report at 19.) Petitioner claims the note creates an inference of a lapse of time that could have raised doubt as to the victim's story. (Pet. at 5-c to 6-c.) Analyzing the claim on its merits, the Magistrate Judge found the late disclosure did not result in any prejudice to Petitioner. (Id.) The evidence could have been used to impeach the victim's testimony. (Id.) Petitioner had laid the foundation to challenge her credibility and he had already cast doubt upon her credibility. (Id.) Therefore, at the time of discovery of the note, Petitioner had the opportunity, by recalling the victim, to use the note for impeachment purposes and its use would have been consistent with testimony he had already presented to the jury. (Id.)
Once the disclosure of the notes was revealed, Petitioner had the opportunity to move for a mistrial or use the evidence later in the trial by recalling the victim to impeach her further or by bringing up a consent defense. However, he failed to do so. Petitioner's contentions that the court should have sua sponte granted a mistrial or discussed the option with Petitioner, does not find support in case law, and therefore, Petitioner was not prejudiced by the late disclosure. See Strickler, 527 U.S. at 281.
Accordingly, the state court's decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law." See 28 U.S.C. § 2254(d)(1). The Court ADOPTS the Magistrate Judge's findings and conclusions that Petitioner is not entitled to habeas relief on the claim of the late disclosure of police notes.
D. Claim Two: Denial of Appellate Review Process
Petitioner claims he was denied the "fundamental liberty interest to participate in the [sic] gain access to appellate review process." (Pet. at 16.) He argues that while his case went through the state appeals process, his appellate counsel declined to raise multiple issues. (Id. at 16-22.) Since appellate counsel failed to raise issue on appeal, Petitioner filed a motion for leave to file a pro se supplemental opening brief in the court of appeal. (Suppl. Lodgment 3.) The court of appeal denied his motion because he does not have a right to self-representation in criminal appeals. (Suppl. Lodgment 4). The Magistrate Judge concluded that Petitioner was not entitled to habeas relief because there is no "right to self-representation in criminal appeal" and appellate counsel does not have to make every frivolous argument." (Report at 20 (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983)).
Since Petitioner did not file objections as to this claim, and the Magistrate Judge's analysis was not clearly erroneous, the Court ADOPTS the Magistrate Judge's findings and conclusion that Petitioner is not entitled to habeas relief as to his second claim for denial of the appellate review process.
E. Claim Three: Ineffective Assistance of Counsel on Appeal
In the petition, Petitioner argues that he received ineffective assistance of counsel when his appellate counsel failed to raise certain issues on appeal. According to Petitioner, appellate counsel failed to present the following allegations on appeal: 1) failed to challenge the denial of his motion to dismiss the information on the ground that he was denied advisory counsel and a language interpreter at the preliminary hearing when he was representing himself; 2) failed to challenge the trial court's exclusion of third party culpability evidence; 3) failed to challenge the shoddy police investigation of the crime; 4) failed to adequately challenge the ruling regarding the disclosure of a witness address; and 5) failed to conduct an investigation on newly discovered evidence regarding Dixon in support of a habeas petition or to assist in filing such a petition. (Pet. at 8, 2c-21c.)
In the Report, the Magistrate Judge concluded that the claim of ineffective assistance of counsel was procedurally defaulted. Petitioner objects to the Magistrate Judge's conclusion arguing that the claim of ineffective assistance of counsel was not procedurally defaulted.
The procedural default doctrine forecloses review of a state prisoner's federal habeas claims, if those claims were defaulted in a state court pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). For a state procedural rule to be "independent," the state law basis for the decision must not be interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris v. Reed, 489 U.S. 255, 265 (1989). In order for a state procedural rule to be "adequate," it "must have been 'firmly established and regularly followed' by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). This means that the question is whether the state courts were regularly and consistently applying the relevant procedural default rule "at the time the claim should have been raised." Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997).
A state procedural bar rule is inadequate to preclude federal habeas review if the state rule is not consistently applied. Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
On February 7, 2007, the California Supreme Court denied Petitioner's habeas petition with citations to In re Clark, 5 Cal. 4th 750 (1993); and In re Miller, 17 Cal. 2d 734 (1941). (Lodgment No. 12.) Respondent argues that the California Supreme Court's references to In re Clark and In re Miller represent the invocation of an independent and adequate state procedural bar. However, the Court has the discretion to decide the case on the merits without reaching any procedural default issues. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (holding that a district court may address the merits without reaching procedural issues where the interests of judicial economy are best served by doing so); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same."). After a review of the extensive nineteen page discussion on procedural default in the Report, the Court exercises its discretion to decide Petitioner's claims on the merits without reaching any procedural default issues. (See Report at 21-40.)
The California Supreme Court denied the petition on February 7, 2007. (Lodgment 12.) Since there is no reasoned decision from the California Supreme Court, the Court "looks through" to the court of appeal decision. See Ylst, 501 U.S. 801-06. On July 7, 2006, the court of appeal denied the petition explaining that the claim was not first brought in the superior court. (Lodgment 10.) Since the court of appeal did not reach the merits of the claim, this Court's review of the case is de novo. See Pirtle, 313 F.3d at 1167.
The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (stating that Strickland "has long been clearly established federal law determined by the Supreme Court of the United States"); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997). A habeas petitioner must satisfy two requirements to demonstrate his assistance of counsel was so defective that habeas relief is warranted. First, the petitioner must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the petitioner must show counsel's deficient performance prejudiced the defense. Id. The test for prejudice requires that the defendant show that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome would have been different. Id. at 694. In other words, petitioner must demonstrate his counsel's error rendered the result unreliable or the trial fundamentally unfair. Fretwell v. Lockhart, 506 U.S. 364, 372 (1993); Strickland, 466 U.S. at 694. Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987); seeStrickland, 466 U.S. at 690. The question is not what defense counsel could have pursued but rather whether the choices made were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700.
"Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. He must "at a minimum conduct a reasonable investigation enabling him to make informed decisions about how to best represent his client." Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). "To determine the reasonableness of a decision not to investigate, the court must apply 'a heavy measure of deference to counsel's judgments.'" Babbitt, 151 F.3d at 1173.
1. Failure to Appeal Denial of Motion to Dismiss the Information Based on Denial of Auxiliary Aids at the Preliminary Hearing
Petitioner argues that his appellate counsel failed to challenge the trial court's ruling denying his motion to dismiss the information because Petitioner was denied auxiliary assistance in the form of an advisory counsel and oral interpreter at the preliminary hearing.*fn2 (Pet. at 2-c.)
Petitioner has a speech and hearing impediment. (RT at 19, 25, 165.) His hearing loss requires him to use hearing aids. (RT, vol. 2 at 168.) His hearing causes his speech impediment in the form of a hearing-impaired accent which brings forth an issue of understanding Petitioner. (RT at 26.) At the preliminary hearing, Petitioner utilized an assistive listening device.*fn3 (RT, vol. 2 at 168.) The trial court at the preliminary hearing was sensitive to the needs of Petitioner. The court denied Petitioner's request for an advisory counsel because an advisory counsel would not assist in areas of hearing or speaking impairments. (RT at 20; 25.) The court suggested possibly an oral interpreter and had Petitioner's impairments evaluated to accommodate Petitioner prior to being arraigned. (Id. at 21-22; 164.) The court also commented that there were only a few things that were difficult to understand and that the court felt "pretty comfortable" understanding him. (Id. at 25-26.) The court would ask him to repeat if the court did not understand him. (Id.) The trial judge also commented on being comfortable with the procedures used at the hearing and court's ability to accommodate those needs at the hearing. (RT at 164.) The court delayed the arraignment in order for appropriate accommodations for his impairments to be put in place for Petitioner. (Id.)
On September 12, 2003, another trial judge held a hearing on Petitioner's non-statutory 995 motion to set aside the preliminary examination for failure to provide advisory counsel and an American Sign Language ("ASL") interpreter. (RT, vol. 2 at 167.) The court provided a very detailed and thoughtful ruling on the motion. (Id. at 173-181.) The trial judge not only reviewed the preliminary hearing transcript but other hearings. (Id. at 173.) The issue was whether Petitioner was denied an ASL interpreter, and second, whether he was denied an advisory counsel. (Id. at 174.)
At the preliminary hearing, Petitioner had the use of an assistive listening device. (Id. at 168.) At subsequent proceedings, based on the judge's recommendation, Petitioner was provided with an assistive listening device, the CART*fn4 process, an ASL interpreter*fn5 and hearing aids. (Id. at 168.) At the preliminary hearing, Petitioner fully participated and the communication was going well. (Id. at 179.) As to the advisory counsel, the trial court concluded that advisory counsel was not appropriate for health related issues and it is not the role of the advisory counsel to step in as counsel during the times when Petitioner has a problem. (Id. at 180.) In addition, the court concluded that Petitioner was "conversant with legal concepts, and he knows how to tenaciously go about putting his point across." (Id. at 180.) The court also mentioned that she did not pick up an impediment "other than what I am used to hearing from folks who have a hearing loss." (Id. at 177.) She understood him "more clearly than any number of people who have been in my courtroom without hearing impairments. . . ." (Id.)
The record shows that Petitioner was engaged and participated fully in the preliminary hearing, the trial judge was able to understand him and if there were issues of understanding, words or sentences would be repeated. (RT, vol. 2 at 173-80.) Petitioner was also afforded the opportunity to request that words be repeated. (Id.) However, the times when requests were made to repeat words by the Court and by Petitioner were few. (Id. at 176.)
In addition there is no constitutional right to advisory counsel. Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir. 1983). Petitioner is a vigorous advocate and was able to articulate issues and present his defense well at trial. Accordingly, the trial court's denial of his request for advisory counsel did not violate any constitutional rights.
After a review of the proceedings in state court, the Court concludes that appellate's counsel failure to challenge the trial court's ruling denying his request to dismiss the information for failure to provide for advisory counsel and an oral interpreter at the preliminary hearing was reasonable. See Babbitt, 151 F.3d at 1173. After a de novo review, the Court concludes that Petitioner is not entitled to habeas relief as to this claim.
2. Failure to Challenge Exclusion of Third Party Culpability Evidence and Failure to Challenge Trial Court's Ruling on the Consent Note
Petitioner claims that his appellate counsel should have challenged the trial court's exclusion of third party culpability evidence regarding the victim's boyfriend's history of abuse toward the victim at a hearing on November 12, 2003. (Pet. at 6-c.) The Magistrate Judge recommended that this claim be denied. In the objections, Petitioner argues that he was not challenging the trial court's ruling at the hearing on November 12, 2003 but the trial court's exclusion of the victim boyfriend's history of abuse from Officer Serrano's testimony on November 28, 2003. (Obj. at 22.) He contends that the victim's boyfriend had a history of physically abusing the victim and had a motive for assaulting the victim. (Id.)
At the hearing on November 12, 2003, Petitioner brought forth a motion to allow the testimony of the victim's boyfriend concerning his abuse of the victim. (RT at 771.) The trial court questioned Petitioner whether he sought to question the victim about the abuse of her boyfriend or to allow the testimony of the boyfriend. (Id. at 772.) Petitioner indicated that he wanted to reserve the motion until trial because he was not sure whether he would seek the testimony of the boyfriend. (Id. at 773.) The trial court did not rule on Petitioner's motion but warned Petitioner that a hearing would need to be held on the issue and he would need to provide at least a half-day's notice if he planned to call the victim's boyfriend on the stand. (Id. at 773.) As to whether he could ask the victim about her boyfriend, the trial court told Petitioner that if the issue was not dealt with at that hearing, he will not be able to ask the victim about her boyfriend. (Id. at 774.) Petitioner did not object to the decision. (Id.) The trial court later restated, "unless I have ruled it's admissible, you're not allowed to. Do you understand?" (Id. at 776.)
At trial, Petitioner sought to question Officer Serrano about the victim's boyfriend being an "aggressive pimp and pandering individual." (RT at 1273.) The trial court sustained the prosecutor's objections and stated, "Mr. Hayes, you're going to need to stop because we've already discussed this, I've already ruled on it." (Id.) Petitioner argues that he is entitled to elicit proof that another person committed the assault and the history of the victim's boyfriend's physical abuse provided such evidence.
A review of the record shows that Petitioner failed to comply with the court rules/decision on presenting evidence regarding the history of abuse by the victim's boyfriend. Therefore, it was reasonable for appellate counsel to not challenge the trial court's ruling excluding testimony regarding the vicitm's boyfriend's history of abuse. See Babbitt, 151 F.3d at 1173.
Petitioner also argues that appellate counsel failed to challenge the late disclosure of the police note which stated, "I didn't report on time." (Pet. at 5c; Pet, Ex. K-1.) He argues that this statement creates an inference of a lapse of time that raises questions as to the victim's story. (Id. at 5-c to 6-c.) As discussed earlier, the Court concluded that at the time of discovery of the note, Petitioner could have recalled the victim to impeach her credibility or use the note as rebuttal evidence. Therefore, there was no prejudice to the late disclosure of the police note. Appellate's counsel failure to raise this issue on appeal was reasonable. See Babbitt, 151 F.3d at 1173. Accordingly, Petitioner is not entitled to habeas relief on this claim.
3. Failure to Challenge the Adequacy of Police Investigation of the Crimes
Petitioner argues that he requested his appellate counsel to raise the issue of the shoddy investigation of the case by Detective Serrano. (Pet. at 9-c.) Specifically, he states that Officer Serrano only recorded and preserved the victim's and her fabricated witness statements. He further used those statements to improperly bring up Petitioner's past criminal record which had no relevance in this case. (Id.) He claims that Officer Serrano failed to preserve the name of the person who made the comment "I was there. It was consensual"; he failed to investigate and obtain evidence at the scene of the alleged crime; failed to pursue the victim's boyfriend as a perpetrator since he had a history of being violent towards the victim; failed to interview witnesses; and failed to preserve or procure information about the "unknown contacted person's name, identity." (Id. at 9-c to10-c.)
In response to Petitioner's request to add more issues on appeal, appellate counsel wrote a letter dated November 18, 2004 explaining that even though the police may have been sloppy and made inadequate efforts to investigate the case, and to locate the person whom the victim said she thought she saw nearby, the standard is not that the police must make extraordinary efforts to investigate the case. (Id., Ex, E.) Moreover, without a description or additional information about this potential witness to the alleged crime, it would not be realistic for the police to locate such a witness. (Id.)
Petitioner does not provide authority that the police has a duty to investigate the crimes more thoroughly than they did. It was reasonable for appellate counsel to decline to bring this issue on appeal. See Babbitt, 151 F.3d at 1173. Accordingly, the Court concludes that Petitioner is not entitled to habeas relief as to this issue.
4. Failure to Challenge the Ruling Regarding the Disclosure of a Witness Address
Petitioner argues that appellate counsel failed to raise the issue of the prosecutor's concealment of a favorable non-confidential address of witness Rohena, who was Petitioner's roommate and an important rebuttal witness. (Pet. at 12-c to 14-c.) He claims that the investigating agent had the address of Rohena but refused to turn over the address so he was unable to subpoena Mr. Rohena. (Id.) Mr. Rohena's statement would have impeached the victim's credibility by bringing up her sexual reputation. (Id.)
At the September 29, 2003 pretrial discovery hearing, the court ordered that the "names, addresses and telephone numbers of all persons who were contacted with respect to this case by agents of the police whether or not those individuals provided information which the people thought was relevant, . . ." be provided to Petitioner. (RT at 303.) On November 25, 2003, during trial, when Petitioner sought to have Robert Rohena be a witness on the stand, the prosecution stated that they had found him, and interviewed him but that was the last contact they had with him. (RT at 1486.) The prosecution could not remember where he was working. (Id.) The trial judge suggested that Petitioner and the prosecution discuss stipulating to parts of his interview and to work on locating the witness. (Id. at 1487-88.) Rohena did not testify at the trial. Petitioner argues that the trial judge could have ordered the prosecutor's investigating agent to locate the address of Rohena because he was highly important to impeach the victims' testimony.
In response to Petitioner's request to add this claim on appeal, appellate counsel explained that any information of the victim's sex reputation was properly excluded at trial and he did not see any issue as to the court's ruling. (Pet., Ex. E.)
In addition, even if appellate counsel failed to challenge the ruling of the state court, the result of the proceeding would not have been different. Looking at the witness statement, Rohena would not have been a favorable witness to Petitioner. (Pet., Ex. R.) First, in a voicemail to the police, Rohena indicated he did not want to be involved in court regarding a case about "he said she said thing when they are both wrong." (Id.) Rohena also stated that Petitioner did not keep normal hours, drove one of Rohena's roommates, who was also a friend, out and expressed distrust in Petitioner regarding Rohena's possessions in the room they shared. (Id.) In addition, if Rohena had testified, it would have not helped Petitioner's case because the sex reputation of the victim was excluded from trial. (See RT at 787-792.) Therefore, appellate counsel's decision not to challenge the court's ruling was reasonable and not a basis for habeas relief. See Babbitt, 151 F.3d at 1170.
5. Failure to Investigate Newly Discovered Exculpatory Evidence in Support of a Habeas Petition or To Assist in Filing a Petition regarding Dixon's Declaration
Petitioner argues that in September 2004, he discovered a man by the name of Richard Dixon who recalled being present in the area on the night in question and who provided a declaration about the victim's "bizarre sexual activities." (Pet. at 16-c.) Petitioner claims he brought this information to his appellate counsel who refused to investigate the matter or file a petition for writ of habeas corpus. In the letter dated November 18, 2004, appellate counsel explained that after reviewing the information provided by Petitioner, counsel did not see how Dixon's declaration would provide a basis for relief because the declaration fails to state why he was not called as a witness during the trial and any information about the victim's reputation evidence regarding trading drugs for sex was properly excluded by the trial court. Petitioner has not provided any authority that appellate counsel's reasoning is invalid. Accordingly, Petitioner has not overcome the presumption of competency with this issue.
Based on the above, the Court concludes that after a de novo review of the record, Petitioner has not shown that appellate counsel provided ineffective assistance of counsel.
F. Certificate of Appealability
Rule 11 of the Federal Rules Governing Section 2254 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability should be issued only where the petition presents "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A certificate of appealability "should issue when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Based on the Court's review of the petition, the Court finds no issues are debatable among jurists of reason and that no jurists of reason would find it debatable whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484. Accordingly, a certificate of appealability is DENIED as to the claims in the petition.
For the reasons set forth above, IT IS HEREBY ORDERED that the Court ADOPTS the report and recommendation of the Magistrate Judge in its entirety; and DENIES the petition for writ of habeas corpus. The Court also DENIES a certificate of appealability and DENIES Petitioner's motion for ruling on pending objection pleading as MOOT. The Court further DENIES Petitioner's motion to appoint counsel and/or discovery process as MOOT.
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February 22, 2011
DAVID CARROLL, PLAINTIFFv.SETCON INDUSTRIES INC., JAMES REED SALES, INC., PECKHAM INDUSTRIES, INC., THE DOW CHEMICAL COMPANY, AND JOHN DOE, A FICTITIOUS NAME, DEFENDANT
Presently before the Court is a motion filed by Defendant Dow Chemical Company ("Dow" or "Defendant") to dismiss Plaintiff David Carroll's ("Plaintiff" or "Carroll") Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's Amended Complaint alleges that Defendants SetCon Industries Inc. ("SetCon"), James Reed Sales, Inc. ("James Reed"), Peckham Industries, Inc. ("Peckham"), Dow, and fictitious defendants ("John Doe") are liable for injuries Plaintiff incurred from using a chemical substance ("product") in the course of his employment. The Amended Complaint brings the following counts against Dow: Count Seven, negligence; Count Eight, product liability; and Count Nine, breach of express and implied warranties. Plaintiff also brought similar causes of actions against the other Defendants. For the reasons set forth below, Dow's motion to dismiss is DENIED.
When considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to accept as true allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in light most favorable to the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). As such the following facts are taken from the Amended Complaint and supporting documents.
On December 1, 2007, Plaintiff, an employee of Mountain Top Landscaping ("Mountain Top"), sustained burn injuries while using a chemical substance ("product") in the course of his employment. Am. Compl. 2. On this date the two-year statute of limitations period for personal injuries commenced. See N.J.S.A. 2A:14-2.
Shortly thereafter, on May 22, 2008, Plaintiff retained counsel, who contacted Mountain Top's workers' compensation carrier for information related to Plaintiff's workers' compensation claim as well as a possible third-party lawsuit. Certification of Paul J. Bender, Esq. at ¶ 2. On July 31, 2008, Plaintiff's counsel made a second request to Mountain Top's workers' compensation carrier. Id. at ¶ 3. On the same date, Plaintiff filed an Employee's Claim Petition with the New Jersey Division of Workers' Compensation regarding the injury, listing "liquid calcium chloride" (the product in question) as the cause of the injury. Copy of Employee's Claim Petition, attached to Certification of Jacqueline Charlton, as Exhibit A.
On May 4, 2009, Plaintiff's counsel made a third request to the worker's compensation carrier's counsel, this time seeking the contact information of the manufacturer and distributor of the product. Bender, Cert. at ¶ 4. Counsel reiterated this request on August 7, 2009 and on September 17, 2009 and specifically noted the impending statute of limitations deadline to file the complaint. Id. at ¶¶ 5, 7. After being granted permission to do so, Plaintiff's counsel contacted Mountain Top directly requesting information as to the identity of the manufacturer and/or distributer of the product. Id. at ¶ 8. It was not until November 13, 2009, when Mountain Top's workers' compensation carrier informed Plaintiff's counsel that the product was "manufactured by and/or purchased from" SetCon. Id. at ¶ 9.
On November 30, 2009, one day before the expiration of the statute of limitations, Plaintiff filed the original Complaint ("Complaint") naming SetCon and John Doe, a fictitious name, as Defendants. Id. at ¶ 10; Compl. 1; see N.J.S.A. 2A:14-2. The Complaint's First Count (negligence) identified SetCon as the supplier of the product and alleged that it was negligent in "supplying, producing, distributing and/or warning and/or instructing customers and/or their workers in the safe use and/or handling of the product in question." Compl. 2. The Second Count (product liability) claimed that the "product provided by the Defendant" caused Plaintiff's injuries because it failed to contain adequate warnings in accordance with product liability standards. Id. The Third Count (breach of express and implies warranties) claimed that SetCon provided and breached an express and/or implied warranty that the product was "manufactured to be fit for safe human contact." Id. at 3. The Fourth Count of the Complaint ("as to John Doe") "repeats each and every allegations of the First through Third Counts as if same were set forth herein at length" and described the John Doe defendant as representative of "corporations, partnerships, and any and all other individuals who/which may have played any role whatsoever in contributing to the injuries and damages more specifically described herein." Compl. 4. On December 1, 2009, the day after the Complaint was filed and two years after the date of the injury, the statute of limitations period expired. See N.J.S.A. 2A:14-2.
On May 27, 2010, almost six months after the statute of limitations expired, SetCon's counsel sent Plaintiff's counsel documents identifying Dow, as well as the other named Defendants, as the manufacturer and supplier of the product. Bender, Cert. at ¶ 16. Shortly thereafter, on June 25, 2010, Plaintiff filed the Amended Complaint, naming Dow, James Reed, and Peckham in place of the John Doe of the original Complaint. Id. at ¶ 17; Am. Compl. 1. The Seventh, Eighth, and Ninth Counts of the Amended Complaint inserted Dow as a defendant for each of the first three counts of the original Complaint (negligence, product liability, and breach of warranty). Defendant now moves to dismiss those counts against it.
When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965). In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49, 173 L. Ed. 2d 868 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1949. Moreover, in deciding a motion to dismiss, the Court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of Plaintiffs' claim. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004).
Federal Rule of Civil Procedure 15(c) governs whether amendments to a plaintiff's complaint relate back to date of the original complaint for statute of limitations purposes. The Rule provides that "[a]n amendment to a pleading relates back to the date of the original pleading when the law that provides the applicable statute of limitations allows relation back." F.R.C.P. 15(c).
The applicable statute of limitations in this case is N.J.S.A. 2A:14-2, which imposes a two-year period for personal injury tort actions. New Jersey's Fictitious Defendant Rule allows for an amendment to a complaint filed beyond the statutory period to relate back to the original complaint. N.J.R. 4:26-4. This rule provides: "In any action . . . if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." Id.
Accordingly, the statute of limitations may be tolled if the plaintiff invokes the Fictitious Defendant Rule before the expiration of the statute of limitations. DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 352-54 (3d Cir. 2004).
Plaintiff invoked the Fictitious Defendant Rule within the statutory period by naming a "John Doe" defendant in the original, timely-filed Complaint. At issue is whether Plaintiff correctly used the fictitious defendant practice pursuant to N.J. Rule 2A:14-2.
The Fictitious Defendant Rule allows a plaintiff to initially name a "fictitious defendant" in place of an actual person or corporation and subsequently amend the complaint to add a newly identified party even after the statute of limitations has expired. N.J.R. 4:26-4; Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986). The Rule explicitly requires the plaintiff, when listing a fictitious defendant in a complaint, to add an "appropriate description sufficient for identification" of the unknown party. N.J.R. 4:26-4; see also DeRienzo, 357 F.3d at 352. New Jersey case law has also interpreted the Fictitious Defendant Rule to require the plaintiff to exercise due diligence to determine the unknown party's identity before the statute of limitations expires. See Mears v. Sandoz Pharm., Inc., 300 N.J. Super. 622, 630 (App. Div. 1997); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115-16 (1973); Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (2003). In addition, courts often take into consideration whether allowing the amendment to relate back would prejudice the newly identified and named defendant in defending against the cause of action. DeRienzo, 357 F.3d at 353-54; Farrell, 62 N.J. at 122.
Defendant first argues that Plaintiff failed to sufficiently describe the unknown defendant in the original Complaint. The New Jersey Supreme Court has instructed that the specificity requirement be interpreted liberally so as to achieve the purposes of individual justice. Farrell, 62 N.J. at 115, 122. Since the beginnings of the practice of fictitious pleading, courts have based interpretations of the Rule's specificity requirement on the Plaintiff's intent at the time of filing the complaint. See Karandontes v. Ferrell, 7 N.J. Misc. 807, 808 (D.Ct. 1929) (holding that whether a description "identifying or tending to identify such defendant" is sufficiently specific should be based on whom the plaintiff intended to be a defendant in the action); see also Jarusewicz v. Johns-Manville Products Corp., 188 N.J. Super. 638, 645 (Law Div. 1983) (finding the liberalized specificity interpretation of Karandontes to still be viable); Farrell, 62 N.J. at 120. The specificity determination lies in whether the description of the fictitious defendants in the original pleading evinces the plaintiff's intention to bring a cause of action against the defendants later identified and named in the amended complaint. Id. Further, courts are not hesitant to look at the original complaint as a whole, including specific pleadings against named defendants, in gauging to whom the plaintiff had intended the fictitious label to refer. Viviano, 101 N.J. at 554; Jarusewicz 188 N.J. Super. at 647. This course of inquiry is in accordance with N.J. Rule 1:4-3, which allows for statements in a complaint to be "adopted by reference in a different part of the same pleading or in another pleading or in any motion." N.J.R. 1:4-3.
In Jarusewicz, an asbestos-related product liability suit, the plaintiff's original complaint named more than 10 specific manufacturers of the allegedly harmful products and materials as well as "John Does" as defendants. 188 N.J. Super. at 641. The plaintiff included the fictitious defendants with the numerous named defendants as those responsible for the plaintiff's injuries and gave no additional specific description that referred solely to the John Does. Indeed, the plaintiff conceded that the complaint was not an "artful" pleading and could have more specifically described the unknown defendants labeled as "John Does" in the initial complaint.
Id. at 644-45. After the applicable statute of limitations expired, the plaintiff identified additional manufacturers and sought to amend the complaint to substitute these parties with the John Doe defendants of the original complaint.
The Jarusewicz court nonetheless found that the complaint satisfied the specificity requirement despite the lack of a detailed description of the "John Doe" defendants. Id. at 647. The court concluded that, when taken as a whole, the entire compliant clearly showed that the plaintiff intended to bring action against any and all manufacturers and suppliers of the allegedly harmful asbestos-containing products. Id. at 648. Further, the court stressed the fact that, in a product liability suit where plaintiff is unaware of the numerous potential parties that may have manufactured or supplied the product in question, "there is no need for an endless designation of fictitious names." Id. 647.
The plaintiff in Viviano described the fictitious defendant as the manufacturer of the machine which allegedly caused her on-the-job injuries. 101 N.J. at 542. Two years after the expiration of the statute of limitations, the plaintiff sought to substitute the fictitious party for the recently identified manufacturer of a supplemental component to the machine. Id. at 544-45. Although she did not describe the fictitious defendant as a manufacturer of a component of the machine in the original complaint, the court found that the complaint satisfied the specificity requirement. Id. at 543, 554. The Viviano court invoked N.J. Rule 4:5-7, which forgoes technical pleading forms in favor of simple pleadings which "shall be liberally construed in the interest of justice," and found that the complaint as a whole evinced the plaintiff's intent for the fictitious defendant to also refer to the manufacturers of the supplemental component. Id. at 554.
Here, similar to Jarusewicz and Viviano, Plaintiff brought a cause of action related to an allegedly harmful product that could have emanated from numerous manufacturers, suppliers and distributors. Analyzing the claims against the fictitious defendants in the context of the entire complaint (see N.J.R. 1:4-3), a reasonable person would glean that Plaintiff initially intended to bring a cause of action against the manufacturer of the product in question. See Jarusewicz, 188 N.J. Super. at 645. The Complaint's First through Third Counts-one of which is a product liability claim-charged that the Defendants were liable for providing an unsafe product and/or failing to provide adequate warnings. Compl. 1-3. The Fourth Count "repeats each and every allegation" of the previous Counts against John Doe, an unknown party responsible to contributing to Plaintiff's injuries. The Fourth Count limits the types of contributions of the fictitious defendants to those "specifically described herein": manufacturing and/or supplying the product in question. Compl. 4. Thus, a fair reading of the entire Complaint and its amendments compels the conclusion that Plaintiff had intended to bring an action against the unknown manufacturers, distributors and suppliers of the product, one of whom Plaintiff had later come to believe was Defendant Dow. See Gallemore v. Four M Corp., 1999 WL 33964477, at *10 (N.J. Super. App. Div. 1999).*fn1 As evinced from the language of the Fourth Count in the context of the entire Complaint, the descriptions of the Defendants in the first three Counts were intended to also refer to the fictitious John Doe defendant.
Unlike in the two cases upon which Defendant Dow heavily relies in support of its motion to dismiss for failure to satisfy the specificity requirement of the Fictitious Defendant Rule, Plaintiff does not attempt to substitute a party well beyond the scope of a reasonable interpretation of the original complaint's description. In Rutkowski v. Liberty Mut. Ins. Co., the plaintiff described the fictitious defendants as "the designers of, manufacturer of, seller of, distributor of, repairer of, modifier and/or renovator of, or . . . otherwise responsible for" the machine that caused Plaintiff's injuries. 209 N.J. Super. 140, 142 (App. Div. 1986). However, in contrast to the present case, the Rutkowski plaintiff sought to substitute the John Doe for insurance companies, claiming they were negligent in inspecting the injurious machinery. Id. at 142-43. The court, in denying the amendment, took objection with the plaintiff's attempt to substitute parties that had nothing to do with the design, manufacturing, selling, distributing, repair, modification, renovation, etc. of the machine in question. Id. at 147. The court found that it would be unreasonable to conclude that the plaintiff had intended to sue insurance companies or safety inspectors when the original complaint was filed, even in the context of the entire complaint. Id. at 146 (also finding that the language in the original complaint "would have put no insurer or other safety inspector on notice" of the claim alleged in the complaint).*fn2
In Lawrence v. Bauer Pub. & Printing Ltd., the original complaint in a libel suit described the John Doe fictitious defendant as the "composer and writer" of the published story in question. 78 N.J. 371, 372-73 (1979). Despite having known that the story was partially the product of an unidentified source, the plaintiff did not describe the John Doe as the source of the story, but limited the description to the "composer and writer." Id. After the applicable statutory period, the plaintiff identified the story's source and sought to amend the Complaint to substitute the source for the John Doe. Id. at 373. The court found that the original complaint did not show that that the plaintiff intended to sue the source. Id. at 376. Rather, a reasonable reading of the complaint evinced that the plaintiff intended to sue only the writer and composer of the story. Id; see also Viviano, 101 N.J. at 554-55 (distinguishing its own facts from those of Lawrence in this way).
The Plaintiff in the present case is not attempting to amend the Complaint to substitute the John Doe with a party unreasonably beyond the scope of the description of the fictitious party he did provide. As noted, it is reasonable to conclude that, when read in the context of the entire Complaint, the description of the fictitious party was intended to encompass the manufacturer or supplier of the product in question. Plaintiff merely sought to substitute the John Doe of the original Complaint in a product liability suit with the unknown manufacturer and supplier of the product in question, which Plaintiff later had reason to believe was Defendant Dow. While Plaintiff's description of the John Does could have been more precise or "artful," reading the description in the context of the Complaint as a whole compels this Court to construe the pleading liberally so as conclude that Plaintiff has satisfied the specificity requirement. See Jarusewicz, 188 N.J. Super. at 644-45.
The next question is whether Plaintiff exercised due diligence in seeking to ascertain the identity of the fictitious defendant within the statutory period. The Fictitious Defendant Rule allows the amendment of the complaint to relate back to the date of the original filing if the plaintiff could not have determined the identity of the unknown party before the expiration of the statute of limitations, even after undertaking reasonably diligent investigation and research. Farrell, 62 N.J. 111. If, on the other hand, the plaintiff should reasonably have determined the unknown party's identity within the statutory period, yet failed to do so, then the Rule does not allow the proposed amendment to the complaint to relate back. Mears, 300 N.J. Super. at 629; Cardona v. Data Systems Computer Center, 261 N.J. Super. 232, 234-35 (App. Div. 1992).
The New Jersey Supreme Court has instructed that this court should broadly interpret the diligence requirement to one of a "good faith" effort by plaintiff to determine the fictitious party's identity. Farrell, 62 N.J. at 120. As the Third Circuit Court of Appeals noted in DeRienzo, the Court has not articulated a precise definition of "diligence" in the context of the Fictitious Defendant Rule. DeRienzo, 357 F.3d at 354; see also O'Keeffe v. Snyder, 83 N.J. 478, 499 (1980) ("The meaning of due diligence will vary with the facts of each case . . . ."). Generally, however, when determining due diligence, courts consider the plaintiff's efforts- such as obtaining publically available information, conducting depositions of relevant parties, interviewing witnesses-which would generally be construed as a calculated attempt to ascertain the identity of the fictitious party. Baker v. J.J. De Luca Co., Inc, 2008 WL 4648235, at *1-2, *10 (N.J. Super. App. Div. 2008)*fn3 (instructing the lower court to consider as due diligence the plaintiff's interrogatories to and depositions of the named defendants and other parties in direct attempt to discover the identity of the fictitious party); see also DeRienzo, 357 F.3d at 355-56; Viviano, 101 N.J. at 551, 556 (allowing for the amended complaint to relate back after finding that the plaintiff's counsel's deposing the named defendant constituted a good faith attempt to discover the identity of the fictitious party).
The plaintiff in Viviano named as a fictitious defendant the unknown manufacturer of the machinery which caused her injuries. 101 N.J. at 542. The plaintiff's counsel in that case undertook a diligent investigation: counsel inspected the machinery, issued interrogatories to the known defendants, and hired an expert to determine the identity of the unknown manufacturer. Id. at 543. However, it was not until a deposition that took place two years after the expiration of the statute of limitations that of one of the defendants revealed the name of the unknown manufacturer. Id. at 543-44. Within one month after this deposition, the plaintiff filed an amended complaint under the Fictitious Defendant Rule. Id. at 544-45. The New Jersey Supreme Court, in reversing the Appellate Division, reinstated the amendment, holding that the plaintiff's investigation and directed attempts to ascertain the identity of the unknown manufacturer constituted sufficient due diligence. Id. at 556.
Similarly, in Baker, an employee of a subcontractor, who suffered on-the-job injuries when contents of a tractor trailer fell on him named as defendants the general contractor as well as fictitious defendants representing the owner of the tractor trailer and the owner of the materials which caused his injuries. 2008 WL 4648235, at *1.*fn4 Within the statute of limitations period, the plaintiff's counsel had obtained the complete worker's compensation insurance file and the standard accident report, sent interrogatories to the general contractor defendant, and deposed a representative of the general contractor, all with the explicit intention of ascertaining the identity of the fictitious defendants. Id. at *2. It was not until a court-ordered mediation, which took place after the statute of limitations had expired, that the general contractor identified one of the fictitious defendants. Id. In finding that the due diligence requirement had been met, the court pointed to all the efforts made by the plaintiff's counsel-obtaining the reports as well as propounding the interrogatories on, and taking the depositions of, the "most logical source of the needed information"-as a sufficient, good faith investigation to ascertain the identity of the fictitious defendants. Id. at *8. The Baker court concluded that while the plaintiff's attorney "'could have done more,' he 'did enough'" as was required by the interpretation of the diligence component of the Fictitious Defendants Rule. Id. at *9, quoting Viviano, 101 N.J. at 556.
In the present case, within six months of the injury and well before the statute of limitations was to expire, Plaintiff's counsel attempted to obtain information about the product, specifically seeking information about the manufacturer and supplier of the product in question. Well before the expiration of the statute of limitations, Plaintiff's counsel sought out the "most logical source of information" about the product: Plaintiff's employer (Mountain Top) via its workers' compensation carrier. Plaintiff's counsel made repeated requests specifically directed at ascertaining the identity of the manufacturer and supplier of the product. One week before the expiration of the statute of limitations, Mountain Top finally identified SetCon as the manufacturer. Plaintiff thereupon filed the Complaint against SetCon and John Doe in a timely fashion. Through routine inquiries at the beginning stages of discovery within six months of the filing and the expiration of the statute of limitations, SetCon identified Dow and others as the manufacturers and suppliers of the product. Plaintiff then filed the Amended Complaint within one month of receiving this information and within seven months of the expiration of the statute of limitations.*fn5
This situation is similar to that of Viviano, where plaintiff ascertained the identity of manufacturer of the component part through a deposition of a named defendant. Viviano, 101 N.J. at 543-44. There, the court allowed the complaint to be amended two years after the statutory period. Id. at 556. In Viviano, the plaintiff's investigation within the statutory period proved partially fruitful as it allowed the plaintiff to identify and name one defendant in the complaint. It was not until the plaintiff conducted a deposition of this defendant that she ascertained the identity of one of the fictitious defendants. Similarly, the present Plaintiff's diligent investigation within the statutory period revealed SetCon as one of the manufacturers and suppliers of the product in question. It was not until Plaintiff's counsel sent standard inquiries to SetCon, which could not have been done before the filing, that Plaintiff ascertained the identity of the other manufacturers and suppliers.
Defendant argues that a simple Internet search would have revealed Dow as the primary manufacturer and supplier of the product in the geographic area of Plaintiff's employer. Defendant concludes that Plaintiff could have thus easily obtained Dow's identity within the statutory period. While this Internet search would have identified Dow as a possible supplier of the product in question to Mountain Top, it is unreasonable to conclude that it would have confirmed that Dow was the supplier. Even aside from the unlikelihood that the Internet contains wholly accurate information, Plaintiff's bringing a cause of action against any and all the possible manufacturers and suppliers of the calcium chloride product solely based on Internet information would amount to an irresponsible pleading possibly subject to sanction. See N.J.R. 1:4-8.
In cases where courts found a lack of due diligence, the dismissals were based on the fact that the names and contact information of the fictitious defendants were contained in standard official documents readily available to the plaintiffs. See Matynska v. Fried, 175 N.J. 51, 52 (2002) (dismissing the amended complaint because the plaintiff failed to investigate the involvement of a defendant within the statutory period where the name of the previously unknown defendant appeared in the plaintiff's medical record); Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 208 (App. Div. 1999) (hospital chart); Cardona, 261 N.J.Super. at 235 (police report). In Younger v. Kracke, the court found a lack of due diligence based on the plaintiff's failure to make a "simple inquiry" to obtain the police accident report which contained the basic contact information of all the drivers involved in a three-car accident, one of whom was the unknown party listed as a fictitious defendant. 236 N.J. Super. 595, 600-1 (App. Div. 1989). An Internet search hardly amounts to a routine inquiry of a readily available official document which would have contained the identity of the product's unknown manufacturer and supplier. In the absence of an accident report containing the identity of the unknown parties, Plaintiff reasonably sought out the most logical source of this critical information: his employer.
Defendant Dow also argues that Plaintiff should have sought the aid of the Chancery Division of the Superior Court of New Jersey and "filed a very simple Order to Show Cause why [Plaintiff's] employer should not be compelled to . . . provide Plaintiff" with information as to the identity of the unknown defendant before the expiration of the statute of limitations. Def.'s Reply Br. 10-12. Defendant provides only scant and tangentially-related case law in support of this argument and fails to show that seeking injunctive relief in this fashion is a requirement to the sufficient exercise of due diligence under the Fictitious Defendant Rule. Furthermore, even if Plaintiff had somehow compelled Mountain Top to provide the identity of the manufacturer, such a course of inquiry would not have revealed Defendant Dow as the unknown defendant. As noted, on November 13, 2009, before the statute of limitations expired, Mountain Top indeed informed Plaintiff that SetCon was the unknown manufacturer. Defendant Dow was identified as the unknown manufacturer not by Mountain Top, but rather by SetCon in the beginning stages of discovery after the Complaint was filed. Therefore, such a route of inquiry via the state Chancery Court would not have ascertained Dow as the fictitious defendant of the original complaint.
Moreover, a recent Appellate Court decision held that "the question of whether [a] plaintiff had made reasonable efforts . . . should not [be] decided on summary judgment" unless "no 'rational factfinder [could] resolve th[is] alleged disputed issue in' plaintiff's favor." Tonic v. Am. Cas. Co., 413 N.J. Super. 458, 474 (App. Div. 2010) quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This suggests it is even more inappropriate to dispose of the question of due diligence in a motion to dismiss, where Plaintiff's allegations of due diligence must be taken as true, and Plaintiff's allegations here assert that his counsel made consistent attempts to ascertain Defendant Dow's identity. Accordingly, this Court finds that Plaintiff has sufficiently demonstrated due diligence for the purposes of withstanding a motion to dismiss.
The final question to be decided in determining whether Plaintiff properly amended the complaint pursuant to the Fictitious Defendant Rule involves the issue of whether the amendment has prejudiced Defendant. While the issue of prejudice has been given weight by courts in determining due diligence, it has not been definitively considered to be a requirement. Mears, 300 N.J. Super. at 631; Baker, 2008 WL 4648235, at *3. Assuming for the sake of argument that this Court must engage in a prejudice analysis, any assertion of prejudice here is unfounded. As noted, Plaintiff promptly filed the Amended Complaint (June 25, 2010) within one month of ascertaining the identity of the Defendants (May 27, 2010) and within seven months of the expiration of the statute of limitations (December 1, 2009). See Farrell, 62 N.J. at 113-14, 122 (holding that the plaintiff acted diligently in amending the complaint containing a fictitious defendant within one month of learning the identity of the unknown defendant). Here, Defendant Dow's ability to defend has not been impaired any more that it would have been had Plaintiff filed the motion to amend the complaint seven months earlier, which would have placed it within the statute of limitations period.
In short, in determining whether to allow the amendment to the complaint beyond the statute of limitations based on the Fictitious Defendant Rule, courts look to whether "[j]ustice impels strongly towards affording the plaintiffs their day in court" considering the "absence of prejudice, reliance or unjustifiable delay." Viviano, 101 N.J. at 549 (citing Fernandi v. Strully, 35 N.J. 434, 451 (1961)). The motion before this Court does not concern the merits of the controversy; rather the interests of justice compel this Court to allow for Plaintiff to amend his Complaint to include a party Plaintiff has alleged to be a tortfeasor, based on his diligent investigation. Plaintiff's motion to amend his initial complaint occurred promptly after the expiration of the statute of limitations and in compliance with the Fictitious Defendant Rule.
For the foregoing reasons, the court DENIES Defendant Dow's motion to dismiss.
Freda L. Wolfson United States District Judge
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