Sunday, February 18, 2018

Case o' The Week: Stay & Abey A-OK - California Rule of Professional Conduct 5-110 and Section 2254 Litigation

 Ethical rules for prosecutors have no teeth, some complain.
 (Tell that to the A.G. now dealing with exhaustion in Fresno . . . .)
Diaz-Sanchez v. Beard, 2018 WL 636921 (9th Cir. Jan. 31, 2018).

Ed. Note: A slow week in the Ninth is a good opportunity to flag developments for an important new Cal. Rule of Professional Conduct – 5-110, “Special Responsibilities of Prosecutors.”

Players: Intriguing opinion by ED Cal Magistrate Judge Sheila K. Oberto.

Facts: Diaz-Sanchez, a state prisoner, was convicted of multiple counts of second degree murder, attempted murder, and kidnapping: he was sentenced to 45 years to life. Id. 
  In 2014, he filed a § 2254 petition. Id. at *1. In 2017, the district court adopted the M.J.’s 2015 recommendations to dismiss as time barred. Id. 
  In 2017, Diaz-Sanchez moved for reconsideration: that claim remains pending. Id. 
  In 2018, the Petitioner moved to stay and abey unexhausted claims based on the November 2017 change to California Rule of Professional Conduct 5-110. Id. at *1. Diaz-Sanchez set forth three unexhausted claims under the new rule, invoking the 
  1) special duties of a prosecutor to disclose information about a witness which is relevant to evidence that calls into question trial counsel’s mental competency; 
  2) duty to disclose State Bar decisions, and 
  3) duty to disclose impeachment evidence and not to introduce false evidence.” Id. at *2.
  The A.G. did not Reply to the motion. Id.

Issue(s): Are Petitioner’s disclosure claims, “plainly meritless?” Id. at *2 (citing Rhines v. Weber, 544 U.S. at 269, 278(2005).

Held:From the limited record, the Court cannot say that these disclosure claims are ‘plainly meritless.’ . . . Further, nothing in the record suggests that Petitioner has intentionally or maliciously failed to pursue his potentially meritorious claim. . . . Indeed, Petitioner could not have pursued these claims because the California Supreme Court adopted the new rule on November 2, 2017, after Petitioner filed his Motion for Reconsideration on October 5, 2017. Accordingly, the Court finds good cause for the unexhausted claim and will grant a stay and abeyance under Rhines.” Id. at *2 (internal quotations and citations omitted).

Of Note: New Rule 5-110 largely tracks ABA Model Rule 3.8. Compare California Rule of Professional Conduct 5-110, available here , with Model Rule 3.8, available here.
  Rule 5-110 is magnificent. Happily, in our view this enlightened new rule applies with equal force to federal prosecutors practicing in California. Thanks to the Citizen’s Protection Act (and through the local rules of District Courts likethe ND Cal.), California rules of professional conduct apply (we contend) to AUSAs practicing in the Golden State. 
  The ND Cal FPD has modified our initial discovery letters to include Rule 5-110 requests, and a potential 5-110 disclosure issue has already lurked around the edges of federal NorCal trial. 
  Potent stuff, this: a new rule that merits very close study by California’s state and federal defense bars.

How to Use: Subsection (F) of 5-110 requires a prosecutor to disclose to a court and / or the defendant, after conviction, any “new, credible and material evidence” creating a “reasonable likelihood” that a convicted defendant did not commit the crime. We routinely send pre-conviction discovery letters – in the vein of Diaz-Sanchez; should we also send California D.A.s and AUSAs post-conviction requests for Section (F) evidence?
Nominee Mark Bennett
For Further Reading: President Trump has nominated his second Ninth jurist (the first nominee is from Oregon). 
   Former Hawai’i State Attorney General Mark Bennett was recently nominated to fill Judge Richard Clifton’s seat. See article here
Judge Mark Bennett
   Though blue slips are not yet formal for Mr. Bennett, from the initial reactions of the two (Democratic) state senators a smooth confirmation seems likely. 
  Hawai'an Mark Bennett would presumably be a very different jurist than the Iowan Judge Mark Bennett, who frequently visits in the Ninth (though it is always foolish to judge a judicial book by its Presidential cover).

The Honorable District Judge Mark Bennett from 

Nominee Mark Bennett from 

Steven Kalar, Federal Public Defender, Northern District of California. Website at



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