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Everhart v. United States

United States District Court, W.D. Washington

April 12, 2017

KYLE ANDREW EVERHART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING RESPONDENT'S MOTION TO AMEND SCHEDULING ORDER AND DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO COMPEL

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Government's motion to continue and/or bifurcate the evidentiary hearing. Dkt. 34. Also before the Court is Petitioner's motion to compel disclosure of a supplemental briefing that the Government filed under seal. Dkt. 36. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies the motions for the reasons stated herein.

         I. BACKGROUND

         On September 24, 2014, a jury found Petitioner guilty of Possession of Methamphetamine with Intent to Distribute under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Cause No. CR13-5512, Dkt. 120. On December 15, 2014, the Court entered judgment in Petitioner's case. Id., Dkt. 139. On December 17, 2014, Petitioner gave notice of appeal. Id., Dkt. 140. On February 11, 2016, the Court of Appeals for the Ninth Circuit affirmed Petitioner's conviction. Id., Dkts. 216, 218.

         On May 26, 2016, Petitioner filed a petition under § 2255, presently before the court. Dkt. 1. On July 8, 2016, the Government responded. Dkt. 7. On August 1, 2016, Petitioner replied to the government's response to his § 2255 petition. Dkt. 10. On August 9, 2016, he moved for appointment of counsel and for leave to amend his petition. Dkt. 11. On August 16, 2016, the Government responded to Petitioner's motion for counsel and leave to amend. Dkt. 12.

         On September 13, 2016, the Court requested additional briefing on the issue of whether Petitioner had selectively waived his Miranda rights prior to being questioned about his involvement with suspected drug trafficking in Washington. Dkt. 13. On September 23, 2016, the Government filed supplemental briefing. Dkt. 14. On October 17, 2016, Petitioner filed his supplemental brief. Dkt. 17.

         On November 1, 2016, the Court denied the § 2255 petition on most of its claims, but reserved ruling in part on the issue of “selective waiver.” Dkt. 18. The Court also ordered an evidentiary hearing and granted Petitioner's motion for leave to amend and to appoint counsel. Id.

         On April 5, 2017, the Government filed a motion to amend the scheduling order by either bifurcating the proceeding or continuing it entirely. Dkt. 34. Additionally, the Government filed under seal an ex-parte supplemental briefing in support of its motion that describes information that the Government believes may be subject to disclosure under Brady/Giglio if the case proceeds as scheduled. Dkt. 35. On April 10, 2017, Petitioner moved to compel production of the Government's sealed supplemental briefing. Dkt. 36. Petitioner also responded in opposition to the Government's motion for a bifurcation, and stated that an assessment of the motion to continue was impossible without access to the justifications for seeking a continuance set forth in the Government's sealed pleading. Dkt. 37. On April 10, the Government responded in opposition to Petitioner's motion to compel. Dkt. 38.

         II. DISCUSSION

         A. Motion to Continue or Bifurcate

         In this case, the Government seeks either a bifurcation or continuance of the evidentiary hearing on the basis that it possesses three pieces of information that may be of value to impeach the credibility of witnesses favorable to the Government, thus requiring Brady/Giglio disclosures, and that a bifurcation or continuance may obviate the need for disclosure. Under the Government's argument in favor of bifurcation, it claims that the disclosure of these materials could be rendered moot if the testimony of Petitioner and his trial counsel reveal that counsel's oversight of the “selective waiver” issue falls short of the ineffective assistance of counsel standard. Additionally, in support of its requests for either bifurcation or a continuance, the Government argues that the extended period before its witnesses are required to testify might allow an ongoing investigation to be resolved in a manner favorable to a potential witness, such that the resolution of the investigation obviates any need for a Brady/Giglio disclosure.

         In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the suppression of material evidence violates due process and will necessitate a new trial. 373 U.S. at 87. “When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.” Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotation omitted). See also Ayala v. Chappell, 829 F.3d 1081, 1106 (9th Cir. 2016) (“'Evidence favorable to [the] accused' includes evidence that would help a defendant impeach prosecution witnesses.”). When the Government is unsure of the impeachment value of certain information, the Ninth Circuit has required that it submit the information for in camera review. See United States v. Henthorne, 931 F.2d 29, 30-31 (9th Cir. 1991). As for the timing of such disclosures, “Brady requires pretrial disclosure of exculpatory information in time for it to be a value to the accused.” United States v. Acosta, 357 F.Supp.2d 1228, 1245 (D. Nev. 2005) (emphasis in original).

         To address the Government's request, the Court addresses the Government's duties under Brady/Giglio and whether the requested relief would be of convenience, avoid prejudice to a party, or expedite and economize in this case. See Fed. R. Civ. P. 42. In particular, the Court assesses (1) the Brady/Giglio information that has already been disclosed to Petitioner's counsel regarding Agent Brady, and (2) currently undisclosed information that may implicate the credibility of another potential witness.

         1. Agent ...


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