MEMORANDUM OF DECISION AND ORDER
STEPHEN McNAMEE, District Judge
Pending before the Court is Defendants' Chief Justice Barbara A. Madsen, Justices Gerry L. Alexander, Charles W. Johnson, Richard B. Sanders, Tom Chambers, Susan J. Owens, Mary E. Fairhurst, James M. Johnson, and Debra L. Stephens of the Washington State Supreme Court (hereafter, "Defendant Justices") Motion to Dismiss (Doc. 23). Also before the Court is Defendants' Washington State Bar Association and Washington State Bar Association Board of Governors Salvador A. Mungia, Steven G. Toole, Mark A. Johnson, G. Geoffrey Gibbs, Brian L. Comstock, Loren Scott Etengoff, Anthony David Gipe, Lori S. Haskell, David S. Heller, Nancy L. Isserlis, Leland B. Kerr, Carla C. Lee, Roger A. Leishman, Catherine L. Moore, Patrick A. Palace, Marc L. Silverman, and Brenda Williams (hereafter, "WSBA Defendants") Motion to Dismiss (Doc. 20). Plaintiff Stephen K. Eugster responded to both motions (Doc. 27). Defendant Justices (Doc. 29) and WSBA Defendants (Doc. 28) then replied. Although the parties initially noticed oral argument, the Court finds the motions to dismiss suitable for decision without oral argument.
BACKGROUND
The Plaintiff in this case is Stephen K. Eugster, a Washington attorney who was admitted to the Washington State Bar in 1970. (Doc. 16: ¶ 14). Plaintiff practiced law in the state of Washington until June 11, 2009, when the Washington Supreme Court suspended him from the practice of law for eighteen months and ordered him to pay restitution to the estate of the client affected by his sanctioned conduct. (Id.: ¶¶ 18, 163) (citing In re Eugster, 209 P.3d 435, 452 (Wash. 2009)); Doc. 27 at 2: 11-19).
After the Washington Supreme Court entered its decision, Plaintiff filed motions to dismiss the judgment against him due to the alleged impropriety of the disciplinary hearing officer, Jane Risley, and the investigating attorney, Jonathan Burke. (Doc. 16: ¶¶ 20, 167, 171). The Chief Hearing Officer, James Danielson, denied Plaintiff's motion to dismiss relating to the disqualification of the hearing officer; in light of this denial, he treated the other motion to dismiss related to Mr. Burke's conduct as moot. (Id.: ¶ 171).
Plaintiff now alleges that Mr. Danielson's professional relationships should have disqualified him from acting as the Chief Hearing Officer. (Doc. 16: ¶ 110). At the time Mr. Danielson held the position, he was a shareholder in the same law firm as Stanley A. Bastian, who has held various leadership roles within the WSBA, including President. (Id.: ¶¶ 98-101, 109).
On May 1, 2006, while Mr. Braff's complaint was pending, another individual, Mattie Kivett filed an unrelated grievance against Plaintiff with the WSBA. (Id.: ¶ 21). During July and August 2009, after the Washington Supreme Court entered its June 2009 judgment against Plaintiff, the WSBA and Mr. Burke conducted an investigation of Ms. Kivett's grievance. (Id.: ¶ 24). Following the investigation, the WSBA dismissed the matter, advising both Plaintiff and Ms. Kivett of the dismissal in a December 21, 2009 letter written by Mr. Burke. (Id.: ¶¶ 25, 27). In the letter, Mr. Burke noted, on behalf of the WSBA, that: (1) the grievance was dismissed; (2) the letter was not a finding of misconduct or discipline; (3) Plaintiff needs to more carefully analyze the law before filing lawsuits; (4) Plaintiff was on notice that, in the future, the complained of conduct must be avoided; and (5) good cause existed for the retention of the file materials related to the complaint for five years from the date of the letter. (Id.: ¶ 27).
On January 21, 2010, Plaintiff filed an amended complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, alleging that Washington's attorney discipline system as it stands, and as applied, violates Plaintiff's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. (Id.: ¶ 1). Plaintiff's amended complaint contained two counts against WSBA Defendants and Defendant Justices. However, following a telephonic hearing held on January 25, 2010, Plaintiff dismissed Count II. (Doc. 18). In Count I, Plaintiff alleges that Defendants, in their individual capacities and in concert, violate Plaintiff's due process rights under the Fifth and Fourteenth Amendments in their administration of Washington's attorney discipline system. (Doc. 16: ¶ 158). Plaintiff requests this Court declare that Washington's attorney discipline system is in violation of Plaintiff's due process rights under the Fifth and Fourteenth Amendments and enjoin Defendants from continuing to act with respect to Washington's attorney discipline system. (Id. at 32-33: ¶¶ 1-2). In Count II, Plaintiff alleged that Defendants violated his due process rights under the Fifth and Fourteenth Amendments with respect to the issuance of the final judgment against him by the Washington Supreme Court, In re Eugster, 209 P.3d 435. In his prayer for relief, Plaintiff asked the Court to declare the disciplinary judgments and orders against him void. (Id.: ¶ 3). As Plaintiff dismissed Count II, Plaintiff no longer asks this Court to declare the disciplinary judgments and orders against him void. (Doc. 27: 24-25). As a result, only Count I of Plaintiff's amended complaint remains.
The Declaratory Judgment Act authorizes courts to declare the rights and other legal relations of any interested party seeking such a declaration. 28 U.S.C. § 2201(a). As the Declaratory Judgment Act states that the court "may" act, it is "deliberately cast in terms of permissive, rather than mandatory, authority." 28 U.S.C. § 2201(a); accord. Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998) (en banc) (citation omitted). While the Act authorizes the district court to provide declaratory relief, the district court is not required to do so.Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942).
Essentially, Plaintiff has confined his claim to a challenge of the constitutionality of the "rules, customs and practices" that govern Washington's attorney discipline system. (Doc. 16: ¶ 151). Plaintiff alleges that Defendants "are responsible for the implementation and application of the Washington Lawyer Discipline System and its rules, customs and practices." (Id.) In Plaintiff's response to WSBA Defendants' and Defendant Justices' motions to dismiss, Plaintiff confirms, "[t]his action has nothing to do with an ongoing case and it has nothing to do with a past case." (Doc. 27 at 10: 13-14). Plaintiff further clarifies that the parties against which he seeks declaratory and injunctive relief are the Washington State Bar Association, the members of the Board of Governors of the Washington State Bar Association, individually, and the Justices of the Washington Supreme Court, individually. (Id. at 9: 5-9). The Washington Supreme Court, however, is not a party to the action. (Id. at 9: 9-10).
STANDARDS OF REVIEW
A. Rule 12(b)(6) Standard of Review
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed.R.Civ.P. 12(b)(6). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S.Ct. at 1949. Moreover, in determining whether a complaint sufficiently states a claim for relief, the inference that the defendant is liable for the misconduct alleged must be more than "merely possible," but "plausible." Id. at 1949-50. "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
B. Rule 12(b)(1) Standard of Review
A party may file a motion asserting lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(1). Additionally, "a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal."United States v. Moreno-Morillo, 334 F.3d 819, 830 (9th Cir. 2003) (citing Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002)); see also Fed.R.Civ.P. 12(h)(3). "The party asserting federal jurisdiction has the burden of establishing it." Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2002) (citation omitted). All allegations in the complaint are taken as true and construed in favor of the nonmoving party.Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Standing and ripeness pertain to a court's subject matter jurisdiction and, as such, are properly raised in a Rule 12(b)(1) motion to dismiss. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
DISCUSSION
Defendants raise a number of arguments as to why the Court should dismiss Plaintiff's claim. Defendants argue that any remaining demands for relief with regards to the past disciplinary proceedings against Plaintiff are barred by theRooker-Feldman doctrine and/or the doctrine of res judicata. (Doc. 24 at 4: 13-15). Additionally, Defendants argue that Plaintiff lacks standing to bring this suit (Doc. 21 at 2: 23; Doc. 24 at 11: 9-10), and Plaintiff's claim is not ripe for review (Doc. 24 at 14: 18). Finally, Defendants assert that Plaintiff's claims are barred by Eleventh Amendment immunity (Doc. 24 at 6: 17-18), and Defendants are protected by various personal immunity doctrines. (Doc. 21 at 10: 6-7; Doc. 24 at 9: 14-16; Doc. 29 at 4: 17-19).
I. The Rooker-Feldman Doctrine
The Rooker-Feldman doctrine is derived from the Supreme Court's decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). In both cases, the Supreme Court articulated the principle that "lower federal courts are without subject matter jurisdiction to review state court decisions . . ." Mothershed v. Justices of Supreme Court, 410 F.3d 602, 606 (9th Cir. 2005). Instead, "state court litigants may . . . only obtain federal review by filing a petition for a writ of certiorari in the Supreme Court of the United States." Id. Even if there is an independent basis for federal jurisdiction, a party may not appeal a decision of a state court to a federal district court. Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003). Rooker-Feldman bars federal district court subject matter jurisdiction where a party seeks to take a formal, direct appeal or a de facto appeal of a state court judgment. Id.
However, the Rooker-Feldman doctrine does not preclude a federal district court from asserting subject matter jurisdiction in general challenges to state rules or statutes. Mothershed, 410 F.3d at 606. In Feldman, the Supreme Court held that "United States District Courts . . . have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case." Feldman, 460 U.S. at 486. Additionally, Rooker-Feldman "does not otherwise override or supplant preclusion doctrine . . ." Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). Claims or issues litigated in prior proceedings may be barred by res judicata. Id. at 293.
Where a federal plaintiff "present[s] some independent claim . . . then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion."Exxon, 544 U.S. at 293. Under Washington State law, res judicata refers to "the preclusive effect of judgments, including the relitigation of claims and issues that were litigated, or might have been litigated, in a prior action." Loveridge v. Fred Meyer, Inc., 887 P.2d 898, 900 (Wash. 1995) (citing Phillip A. Trautman,Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 805 (1985)).
Here, Plaintiff dismissed Count II of his amended complaint, which alleged that WSBA Defendants and Defendant Justices violated Plaintiff's due process rights under the Fifth and Fourteenth Amendments through the past disciplinary action, In re Eugster. (Doc. 18). In Plaintiff's Response to Defendants' Motions to Dismiss, Plaintiff states that he "does not seek to have the court declare any disciplinary action against him void" and that "[t]he decisions of the Court will have no bearing on the discipline and orders entered against the Plaintiff." (Doc. 27 at 8: 24-27). Rather, Plaintiff alleges that Defendants "now and in [the] future" violate and will violate his due process rights through Washington's attorney disciplinary system. (Doc. 16: ¶¶ 157, 159). Because Plaintiff no longer seeks either a direct or a de facto appeal of the prior disciplinary judgments entered against him in state court,Rooker-Feldman does not apply. See Noel, 341 F.3d at 1155; see also Mothershed, 410 F.3d at 606. However, as defendant argues, to the extent that Count I may still challenge past disciplinary actions, the Court's review of the prior state judgment against Plaintiff is barred under Rooker-Feldman. Finally, Plaintiff's remaining claim was not, and could not, have been litigated in the prior state court proceedings against Plaintiff. See Loveridge, 887 P.2d at 900. As such, Defendants cannot assert res judicata as a defense to it. (Doc. 24 at 8-9).
II. Article III Standing
Federal courts may only decide cases or controversies under Article III of the United States Constitution. U.S. Const. art. III, § 2. Standing and ripeness are two elements of the case or controversy requirement. Colwell v. Dep't of Health Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009). "The burden of establishing ripeness and standing rests on the party asserting the claim." Id. (citing Renne v. Geary, 501 U.S. 312, 316 (1991)).
The irreducible minimum of Article III consists of three elements: (1) "the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) there must be a causal connection between the injury and the conduct of the defendant; and (3) the injury must be likely redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted). When a plaintiff seeks injunctive and declaratory relief, the plaintiff must also demonstrate that "he has suffered or is threatened with a concrete and particularized legal harm, coupled with a significant likelihood that he will again be wronged in a similar way." Canatella v. State of California, 304 F.3d 843, 852 (9th Cir. 2002) (internal quotations and citations omitted). A plaintiff must do more than demonstrate only a past injury. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996).
Moreover, the Supreme Court has stated that a plaintiff does not have standing where the "asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens." Warth v. Seldin, 422 U.S. 490, 499 (1975) (internal quotations omitted). WSBA Defendants argue that Plaintiff does not have standing because he asserts only a "generalized grievance," as he relies only on his status as a lawyer in the State of Washington to challenge Washington's attorney discipline system. (Doc. 21: 8-19). However, Plaintiff alleges he has suffered a violation of a personal constitutional right. (Doc. 27 at 6-7: 28, 1). Notably, "where a harm is concrete, though widely shared, the [Supreme] Court has found injury in fact." Fed. Election Comm'n v. Akins, 524 U.S. 11, 24 (1998) (internal quotations omitted) (citing Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449-450 (1989)). Accordingly, Plaintiff can overcome the prohibition against "generalized grievances," if he can establish he has suffered an actual or imminent, concrete and particularized, injury in fact.
When a plaintiff presents a facial challenge to a statute, by "alleg[ing] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he `should not be required to await and undergo . . . prosecution as the sole means of seeking relief.'" Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quotingDoe v. Bolton, 410 U.S. 179, 188 (1973)). Yet, "[t]he mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning of Article III." Stoianoff v. State of Mont., 695 F.2d 1214, 1223 (9th Cir. 1983). "[A] plaintiff must demonstrate a genuine threat that the allegedly unconstitutional law is about to be enforced against him." Id. (citations omitted). Similarly, the mere existence of state bar rules, promulgated by a state supreme court, are not enough to create a case or controversy within the meaning of Article III. See Mothershed, 410 F.3d at 610 (reasoning that a plaintiff must first establish standing before raising First Amendment facial challenges to Arizona Supreme Court Rules governing the admission of attorneys to the State Bar of Arizona).
Plaintiff alleges that the "rules, customs and practices" promulgated by the Washington Supreme Court that govern Washington's attorney discipline system violate his constitutional rights. (Doc. 16: ¶ 151). WSBA Defendants and Defendant Justices argue that Plaintiff lacks standing to challenge the constitutionality of Washington's attorney discipline system. The mere existence of Washington's disciplinary rules does not create a case or controversy within the meaning of Article III. See Stoianoff, 695 F.2d at 1223. Plaintiff must demonstrate a credible threat of future discipline by Defendants under the rules. If Plaintiff can demonstrate such, then the Court will not require him to await further discipline as his "sole means of seeking relief." See Babbitt, 442 U.S. at 298. Therefore, Plaintiff's standing rests on the first element, whether he has suffered an actual or imminent injury in fact.Lujan, 504 U.S. at 560.
Countering Plaintiff's claims, Defendants cite Partington v. Gedan, 961 F.2d 852 (9th Cir. 1992), and Canatella v. California, 304 F.3d 843 (9th Cir. 2002), in support of their argument that Plaintiff does not face a credible threat of prosecution. Thus, he has not met his burden of establishing the elements of standing. In Partington, the plaintiff filed suit under 42 U.S.C. § 1983 against the Justices of the Hawaii Supreme Court. The plaintiff alleged past injuries and sought an injunction restraining the defendants from "sanctioning, accusing, or making findings of unprofessional conduct without affording [the plaintiff] prior notice and an opportunity to be heard."Partington, 961 F.2d at 859 (internal quotations omitted). Even if the plaintiff showed that the defendants deprived him of due process in the past, the plaintiff did not allege sufficient facts to demonstrate that the defendants would again violate his due process rights in the future. As such, the Ninth Circuit found that the plaintiff's claim was "little more than a request for the Hawaii Supreme Court to comply with the rights of due process in the future." Id. at 862. Applying Partington to this case, Plaintiff's past injuries, absent a showing that Plaintiff faces an imminent threat of future injury, are insufficient to support standing under Article III. See id.
Similarly, in Canatella, the Ninth Circuit recognized that past injuries alone were insufficient to confer standing on the plaintiff. There, the plaintiff had been subject to federal and state impositions of monetary sanctions on twenty-six occasions and, as a result, the California State Bar initiated an investigation into the plaintiff. Canatella, 304 F.3d at 847. In response, the plaintiff brought suit under § 1983, raising First and Fourteenth Amendment challenges to certain provisions of the state bar statutes and rules of professional conduct under which he could ultimately be subject to discipline. Id. at 848. While the Ninth Circuit acknowledged that past prosecution by itself does not give rise to a "case or controversy" within the meaning of Article III, it found that the threat of future prosecution to the plaintiff was "actual," not merely "hypothetical, and conjectural." Id. at 852, 848. In so finding, the court considered: (1) that plaintiff had "personally faced discipline" under the specific provisions he challenged, (2) that plaintiff had "nowhere conceded that he [would] refrain from the type of expression that he believes is constitutionally protected, is necessary to the performance of his duties as an advocate, and is the basis upon which he may be disciplined under the challenged statutes in the future," and (3) that the Bar did not concede it would not rely on the challenged provisions to bring about disciplinary action were he to be sanctioned again. Id. at 852-853. On this record, the court found that "there is a strong likelihood [the plaintiff] may again face discipline under the challenged provisions." Id. at 853.
Moreover, in Canatella the plaintiff brought a First Amendment claim in addition to his Fourteenth Amendment claim. Canatella, 304 F.3d at 847. The Ninth Circuit recognized the relaxed prudential requirements for standing in the First Amendment context. Id. at 853 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984)). The court found that the plaintiff's prior interactions with the state bar had "at least some continuing, present adverse effects, whether these effects be further discipline, or the chilling of what may be constitutionally protected speech." Id. (internal quotations and citations omitted). Therefore, the Ninth Circuit found the existence of an imminent threat of injury to the plaintiff.
Here, Plaintiff's past interactions with Washington's attorney disciplinary system alone do not constitute an injury sufficient to confer standing on Plaintiff. See Partington, 961 F.2d at 862;see also Canatella 304 F.3d at 852. Additionally, Plaintiff has not established that any present, continuing actions of Defendants place him under imminent threat of injury. Plaintiff alleges that two letters from the WSBA demonstrate an imminent threat of injury. The Court disagrees.
Initially, due to his disagreement with the WSBA over proper disbursement of the funds, Plaintiff delayed payment of the restitution ordered by the Washington Supreme Court in In re Eugster. (Doc. 27 at 22: Appendix A). In response, the WSBA notified Plaintiff by letter that it was his responsibility to "take the necessary action to effectuate the [c]ourt's order." (Id. at 23: Appendix A). Plaintiff alleges that the WSBA's response amounts to a threat to Plaintiff of "further disciplinary action and potential disbarment" and a "readiness on the part of the Bar Association to continue to focus on [Plaintiff]." (Id. at 12: 6-9, 11-12). Nonetheless, Plaintiff complied with the Washington Supreme Court's order on March 21, 2010 by sending a check payable to the trust account for the Estate of Marion Stead. (See id. at 25: Appendix A). Since then, Plaintiff has not alleged that the WSBA has taken any action regarding the matter. Secondly, Plaintiff alleges that the letter sent from Mr. Burke to Ms. Kivett constitutes a threat of further disciplinary proceedings and demonstrates a willingness on the part of the WSBA to "reawaken" the allegations made against him in that matter. Plaintiff's assertions about the future intentions of Defendants based on the content of the WSBA's communications are speculative, though.
Both of the warning letters hardly demonstrate "a significant likelihood that [Plaintiff] will again be wronged in a similar way." Canatella, 304 F.3d at 852 (internal citations and quotations omitted). (See id. at 13: 1-8; see also Doc. 16: ¶ 27). The Court finds that Plaintiff's situation is distinguishable from the plaintiff's situation in Canatella. Notably, Plaintiff has not alleged a constitutional deprivation under the First Amendment. See Canatella, 304 F.3d at 853. Thus, the relaxed prudential requirements of standing do not apply. Moreover, unlike in Canatella, Plaintiff concedes that he does not intend to engage in misconduct in the future. (Doc. 27 at 12: 22). Such a concession further diminishes the possibility that Plaintiff will be subject to discipline under Washington's attorney discipline system, as well as undercuts his argument that he has standing to bring this claim. Additionally, Plaintiff does not challenge a specific provision or rule that he finds necessary to the performance of his duties as an advocate and under which he would be subject to discipline in the future. Instead, Plaintiff alleges he feels "completely constrained in the practice of law because of the unconstitutionality of the System." (Id. at 17-18). Given that Plaintiff does not challenge the constitutionality of a specific rule or procedure, Defendants cannot concede that they will refrain from imposing discipline under the "system" were Plaintiff to engage in sanctionable conduct under a particular rule. (See id. at 8: 52-53). As such, the considerations that the Ninth Circuit relied upon inCanatella to find standing do not exist here. The Court finds that Plaintiff cannot establish standing on the basis of these communications; any suggested future discipline by Defendants amounts to a conjectural or hypothetical injury, rather than one that is actual or imminent. See Lujan, 504 U.S. at 560.
Finally, Plaintiff asserts that he has standing to bring this suit based on the Court's reasoning in Miller v. Washington State Bar Ass'n, 679 F.2d 1313 (9th Cir. 1982). In Miller, the WSBA placed a letter of admonition in the plaintiff lawyer's record.Miller, 679 F.2d at 1314. The plaintiff alleged that the issuance of the admonition violated his First Amendment rights, and he had no right to appeal this action in Washington state courts. Id. at 1314-15. Additionally, the court concluded that the issuance of the letter amounted to a disciplinary action sufficient to constitute a controversy within the meaning of Article III. Id. at 1318. The court found that because no review of the WSBA's actions was available as of right in state court, "such review [was] available in federal court for consideration of plaintiff's constitutional claim." Id. Here, Plaintiff alleges he has no right of appeal as to the WSBA's statements in the letter from Mr. Burke to Ms. Kivett regarding Plaintiff's past conduct, to the retention of records against him for the stated five year period, or to the alleged accompanying "scrutiny." (Doc. 16 at 7: ¶ 28; Doc. 27 at 2: 24-25). Based on the reasoning of the Court in Miller, Plaintiff contends that he should be afforded standing because he has no right to appeal of these actions. (Doc. 27 at 2: 24-25). However, Plaintiff does not seek review of the WSBA's issuance of the letter in this case, nor does he allege that the letter forms the basis for his present constitutional claims under the Fourteenth Amendment. Moreover, unlike in Miller, Plaintiff does not bring a claim under the First Amendment. According to Plaintiff, this action has "nothing to do with an ongoing case and it has nothing to do with a past case." (Id. at 10: 13-14). As Plaintiff does not seek review of the WSBA's warning to him in the Kivett letter, Miller does not establish Plaintiff's standing to bring this suit.
Plaintiff has failed to show the existence of a case or controversy within the meaning of Article III. See U.S. Const. art. III, § 2. Plaintiff's past interactions with Washington's attorney discipline system alone do not demonstrate that "he has suffered or is threatened with a concrete and particularized legal harm, coupled with a significant likelihood that he will again be wronged in a similar way." Canatella, 304 F.3d at 852 (internal quotation marks and citations omitted). And, Plaintiff admits that he has no claim regarding any past or ongoing disciplinary proceedings. Rather, his claim is based on his fear of continued scrutiny or threat of future discipline. As such, Plaintiff merely seeks an absolute shield from discipline in any form arising out of future violations should they occur, not redress for an actual or imminent injury. "At this stage, any ruling from a federal district court would be an advisory opinion, something federal courts cannot give. In the absence of some concrete threatened injury, Article III bars the relief requested . . ." Partington, 961 F.2d at 862.
Plaintiff has caused much confusion by his use of both past and present tense in his amended complaint. (See, e.g., Doc. 16: ¶ 157). However, Plaintiff's admissions and his abandonment of Count II limit his remaining claim to current and future due process violations.
III. Ripeness
While "standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addressees when that litigation may occur." Colwell, 558 F.3d at 1123 (citing Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997)) (emphasis in original). A suit must present "concrete legal issues, presented in actual cases, not abstractions" to be ripe within the meaning of Article III. Id. (citing United Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947)) (internal quotations omitted). The constitutional component of ripeness often "coincides squarely with standing's injury in fact prong." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009) (citing Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000)). As outlined in the discussion of the injury in fact element of standing, Plaintiff has not demonstrated that he is under imminent threat of injury. Accordingly, this claim is unripe as Plaintiff does not present "concrete legal issues" to this Court, but rather, "abstractions." See Colwell, 558 F.3d at 1123.
IV. Immunities
Plaintiff's suit can be dismissed against all of the Defendants on standing and ripeness grounds under Rule 12(b)(1). Assuming, arguendo, that Plaintiff could establish standing, several of the Defendants are also immune from liability under the Eleventh Amendment and personal immunity doctrines as a matter of law, which the Court will now address.
A. Eleventh Amendment Immunity
The Eleventh Amendment prohibits suits against a state by its own citizens or citizens of other states in federal court.Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (superceded by statute on other grounds); see also Holley v. California Dep't of Corrections, 599 F.3d 1108, 1111 (9th Cir. 2010). This immunity extends to state agencies, including state bar associations. Hirsh v. Justices of the Supreme Court of the State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (holding that the State Bar of California was a state agency and not amenable to suit under the Eleventh Amendment). Eleventh Amendment immunity also applies to "a suit against a state official in his or her official capacity" because such a suit "is no different than a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
Eleventh Amendment immunity may only be overridden by a waiver by the state or abrogation by Congress. Pennhurst, 465 U.S. at 99. Here, the State of Washington has not waived its Eleventh Amendment immunity. (Doc. 24 at 7: 12-14).
The Supreme Court has held that "the relief sought by a plaintiff suing a state is irrelevant to the question whether the suit is barred by the Eleventh Amendment." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996); see Pennhurst, 465 U.S. at 100. However, the Supreme Court has also held that the Eleventh Amendment does not bar suits against a state official when the suit seeks prospective injunctive relief to "end a continuing violation of federal law." Seminole Tribe of Fla., 517 U.S. at 73 (quotingGreen v. Mansour, 474 U.S. 64, 78 (1985)). Accordingly, a plaintiff may seek a declaratory judgment or injunctive relief against state officers in their official capacities. See E.E.O.C. v. Peabody Western Coal Co., ___ F.3d ___, No. 06-17261, 2010 WL 2572001, at *12 (9th Cir. 2010); see also Ex Parte Young, 209 U.S. 123 (1908). However, the Eleventh Amendment does not bar suits against state officials in their individual capacities.Hafer v. Melo, 502 U.S. 21, 30-31 (1991); see also Suever v. Connell, 579 F.3d 1046, 1060 (9th Cir. 2009).
Plaintiff seeks declaratory and injunctive relief against the Washington State Bar Association, the members of the Board of Governors of the Washington State Bar Association, individually, and the Justices of the Washington Supreme Court, individually. (Doc. 27 at 9: 5-9; Doc. 16: ¶ 158). First, because the Ninth Circuit has recognized bar associations as state agencies for the purposes of Eleventh Amendment immunity, Plaintiff's claim against the WSBA is barred in its entirety. See Hirsh, 67 F.3d at 715. However, because Plaintiff seeks relief from Defendant Justices and WSBA Defendants only in their individual capacities, these claims are not barred by the Eleventh Amendment. See Hafer, 502 U.S. at 31.
B. Personal Immunity
When Eleventh Amendment immunity is not applicable, government officials may be immune from liability under various personal immunity doctrines. The Court has already determined that Plaintiff lacks standing to challenge the application and implementation of the "rules, customs and practices" of Washington's attorney discipline system. (Doc. 16: ¶ 151). With regards to the implementation of the system, Defendant Justices also enjoy legislative immunity. Before addressing the application of legislative immunity to the actions of Defendant Justices, the Court will discuss why judicial immunity does not apply to Defendants. The Court declines to reach the question of whether any personal immunity doctrines apply to the WSBA Defendants. 1. Judicial Immunity
If Defendant Justices have immunity in performing legislative and judicial functions, then WSBA Defendants argue that they enjoy quasi-judicial immunity for analogous actions under Washington Supreme Court General Rule 12.3, as applied under Fed.R.Civ.P. 17(b). Under Federal Rule of Civil Procedure 17(b), "capacity to sue or be sued is determined . . . by the law of the state where the court is located . . ." Fed.R.Civ.P. 17(b). Washington Supreme Court General Rule 12.3 states:
All boards, committees, or other entities, and their members and personnel, and all personnel and employees of the Washington State Bar Association, acting on behalf of the Supreme Court under the Admission to Practice Rules, the rules for Enforcement of Lawyer Conduct, and the Disciplinary Rules for Limited Practice Officers, shall enjoy quasi-judicial immunity if the Supreme Court would have immunity in performing the same functions.
Wash. General Rule 12.3. Because Plaintiff lacks standing, this Court declines to reach the question of whether quasi-judicial immunity under Rule 12.3 applies to WSBA Defendants.
Judges are immune from liability for damages stemming from judicial actions taken properly within the jurisdiction of their courts. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). This immunity is construed broadly, as "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (internal quotations omitted) (citing Bradley v. Fisher, 80 U.S. 335, 351 (1871)). Though, judicial immunity is limited in that it is conferred on judges based not on their "location within the government," but rather by the "special nature of their responsibilities." Butz v. Economou, 438 U.S. 478, 511 (1978). "[A]bsolute judicial immunity does not apply to non-judicial acts, i.e. the administrative, legislative, and executive functions that judges may on occasion be assigned to perform." Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) (citing Forrester v. White, 484 U.S. 219, 227 (1988)).
Moreover, judicial immunity may only extend to certain forms of relief. 42 U.S.C. § 1983 provides that, "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983 (emphasis added). Accordingly under § 1983, judicial immunity extends to suits seeking injunctive relief. However, the limits in § 1983 do not appear to alter the availability of declaratory relief. See Brandon E. ex rel Listenbee v. Reynolds, 201 F.3d 194, 197-198 (3rd Cir. 2000).
Prior to 1996, judicial immunity did not bar injunctive or declaratory relief under 42 U.S.C. § 1983. Pulliam v. Allen, 466 U.S. 522, 542-543 (1984).
2. Legislative Immunity
Although judicial immunity does not apply to non-judicial acts, judges may have immunity for the legislative functions they may on occasion be assigned to perform. In general, state legislators are personally immune from liability for their legislative acts, and this legislative immunity extends to suits for injunctive and declaratory relief, as well as to suits for damages. Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731, 733 (1980). Legislative immunity also extends to individuals who create rules for an attorney discipline system. When a state's legislators delegate their "entire legislative power with respect to regulating the Bar" to a state supreme court, the state supreme court and its members are "the State's legislators for the purpose of issuing the Bar Code." Id. at 734. Thus, the United States Supreme Court has held that state supreme court justices are immune from suit in their individual capacities when promulgating rules of attorney discipline because they are acting in a legislative capacity. Id.
As noted, Plaintiff asserts that "[t]his action has nothing to do with an ongoing case and it has nothing to do with a past case." (Doc. 27 at 10: 13-14). He also asserts that the suit is "not against the [J]ustices with respect of [sic] conduct considered to be judicial in character." (Id. at 14: 18-20). Instead, Plaintiff contests the Defendant Justices actions that are "legislative — they are responsible for the creation of the Washington Lawyer Disciplinary System." (Id. at 15: 18-20). Thus, judicial immunity is not at issue with respect to Defendant Justices.
With regard to their legislative actions, the Washington Supreme Court adopts and approves the Washington Rules of Professional Conduct and the Rules for Enforcement of Lawyer Conduct (ELC) proposed by the WSBA Board of Governors. RCW 2.48.060. As in Consumers Union, the Washington Supreme Court is "exercising the [s]tate's entire legislative power with respect to regulating the Bar, and its members are the [s]tate's legislators for the purpose of issuing the Bar Code." 446 U.S. at 734. Accordingly, Defendant Justices enjoy legislative immunity for their roles in implementing Washington's attorney discipline system. Defendant Justices' legislative immunity bars Plaintiff's claims for injunctive and declaratory relief in their entirety.See id. at 733.
CONCLUSION
In conclusion, Plaintiff lacks standing to bring this suit because he has not demonstrated to this Court that he has suffered an actual or imminent injury in fact. Alternatively, the WSBA is entitled to immunity under the Eleventh Amendment and the Washington Supreme Court Justices enjoy legislative immunity. However, the Court declines to determine whether the members of the WSBA Board of Governors are entitled to quasi-judicial immunity in their individual capacities.
Accordingly,
IT IS HEREBY ORDERED that Defendants' Washington State Bar Association and Washington State Bar Association Board of Governors Salvador A. Mungia, Steven G. Toole, Mark A. Johnson, G. Geoffrey Gibbs, Brian L. Comstock, Loren Scott Etengoff, Anthony David Gipe, Lori S. Haskell, David S. Heller, Nancy L. Isserlis, Leland B. Kerr, Carla C. Lee, Roger A. Leishman, Catherine L. Moore, Patrick A. Palace, Marc L. Silverman, and Brenda Williams Motion to Dismiss (Doc. 20) is GRANTED. IT IS FURTHER ORDERED that Defendants' Chief Justice Barbara A. Madsen, Justices Gerry L. Alexander, Charles W. Johnson, Richard B. Sanders, Tom Chambers, Susan J. Owens, Mary E. Fairhurst, James M. Johnson, and Debra L. Stephens of the Washington State Supreme Court Motion to Dismiss (Doc. 23) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Amended Complaint (Doc. 16) is DISMISSED without prejudice.
the record before the court.
“Mr. MARSHALL further related to writer that he and KEN[ ] had slept together while KEN was staying at his residence, and had engaged in homosexual love making. Mr. MARSHALL also stated that at that time, KEN was in possession of and carrying a handgun. Mr. MARSHALL also said he recalled KEN telling him that he was from the Washington area, but was going to be going south in California. Mr. MARSHALL stated that KEN only spent a couple of days with him and because he had the gun, Mr. MARSHALL had asked him to leave.”
Kell Report at 2-3.
Bellah recalls that Marshall stated he had “had sex” with petitioner and that he had asked petitioner to leave because he carried a handgun. Bellah also notes: “The interview was cordial. Marshall was relaxed throughout. His statements appeared spontaneous rather than rehearsed.” Both Bellah and Kell state that they did not threaten, bribe, or coerce Marshall in any way, or attempt to rehearse his version of events. Watkins's report states that he later received a call from Detective Kell, who said that Wurls had been identified as Marshall; that Kell had spoken with Marshall; that Marshall said Kell that he and petitioner had engaged in same-sex sexual relations; and that petitioner was carrying a gun at the time Marshall knew him.
Bellah Decl., ¶ 4 (“Marshall stated he had previously had sex with ‘Ken.’ Marshall also stated he asked ‘Ken’ to leave the apartment because ‘Ken’ carried a handgun”). Petitioner objects to this paragraph on hearsay grounds. The court notes that the truth of Marshall's statement is not relevant to the court's factual findings. The court's inquiry is limited to whether any of the investigators knew that Marshall's testimony was false or coerced. Accordingly, the statements of Marshall are relevant not for their truth but as evidence of whether Bellah or Kell knew that Marshall's later testimony was false.
Bellah Decl., ¶ 5.
Bellah Decl., ¶ 7 (“I did not threaten, bribe, or coerce Marshall in any way, nor did I engage him in any type of rehearsal of his version of events. Nor did any other law enforcement officer or any other person engage in any of the foregoing alleged misconduct in my presence.... Neither Detective Kell nor I had any investment in this case other than a request to interview Mr. Marshall”); Kell Decl., ¶ 4 (“Although I have no specific recollection of this interview, I am certain I did not threaten, bribe or coerce Marshall in any way, nor did I engage him in any type of rehearsal of his version of events. Nor to my knowledge did any other law enforcement officer or any other person engage in any of the foregoing alleged misconduct”).
Watkins Investigation Report 1-2 (“On January 11, 1984, I received a returned call from Detective Kell and he advised me that he had contacted John Wurls and that at this time Wurls had been identified as being Donnie Marshall. Detective Kell went on to advise[ ] me that Donnie Marshall was known to homosexuals in the Portland area. Detective Kell stated that he talked with Marshall in regards to Lang and that Marshal[l] told him that they had a homosexual affair together and that Lang was carrying a gun around at that time. Detective Kell also advised me that he took a photo line-up to Donnie Marshall's apartment with him to assist in the identification of Lang and that he allowed Marshall to look through the photographs and that Marshall selected the photograph of Kenneth Lang as the person that he had the affair with”). The January 11, 1984 date recorded in the report is inconsistent with Kell's report and appears to be an error. January 11, 1984 would have been the day after Watkins first spoke with Daniels. The precise dates are not relevant, however; only the sequence of events is material.
On February 12, 1984, Watkins traveled to Portland and interviewed Marshall at Marshall's apartment with Detective Kell. The interview took place on the morning of February 13, 1984. Watkins tape-recorded the interview and so advised Marshall. Watkins noted that “Marshall appeared to be fairly relaxed during the interview. He did not appear to be nervous or agitated. He did not appear to be intimidated by me or Detective Kell. At that time I was experienced in recognizing the visible signs of intoxication; Mr. Marshall did not appear to be intoxicated.”
Respondent's Exh. 201 (“Marshall 2/13/1984 Interview”) (“Okay today's date is 2/13/1984. The time 1048 hours. I'm Investigator Watkins, Santa Maria District Attorney's Office. Present with me is Detective Kell from Portland P.D. and Donnie Marshall, uh, resident who resides at 2065 Northwest Flanders, Apartment number 102. This, uh, interview will be in regards to Kenneth Burton Lang and his conduct while in the Portland area”).
Watkins Decl., ¶ 2 (“On February 12, 1984, I traveled to Portland, Oregon, and interviewed Donnie Marshall at his residence there. Marshall was a potential witness in the case. I was accompanied at the interview by Portland Police Detective David Kell. I tape-recorded the interview with Mr. Marshall, and I advised Mr. Marshall that the interview would be recorded. Mr. Marshall stated th[at] he had no objection to a tape recording of the interview. Following the interview I prepared a written report”). Kell has no independent recollection of this second interview. (Kell Decl., ¶ 7.)
Watkins Decl., ¶ 3.
During the tape-recorded conversation, Marshall told Watkins and Kell that he had met petitioner through petitioner's cousin, Jim Lord. He stated that Lord and petitioner had an argument and petitioner needed a place to live. Marshall said that petitioner could stay with him if petitioner could pay rent. Either Watkins or Kell asked Marshall during the interview whether Marshall was on parole, and Marshall said he was. Marshall also confirmed that petitioner knew that Marshall was bisexual before he moved in. He said petitioner indicated that “he didn't care” about Marshall's bisexuality.
Marshall 2/13/1984 Interview (“And, uh, so, uh, I seen Kenneth another day by hisself downtown and he told me that, uh, him and his cousin just got in a argument, something to do with, uh, I don't know the rent or something, you know, but his cousin put him out. So I told Kenneth that he can, uh, stay, you know, at my place, you know, I would charge him rent and, uh, so Kenneth moved over to my apartment ... and gave me $50, uh, down on the rent. And at that time that, uh, we were sitting there talking I found out he was on parole and he just recently got out of the Oregon State Penitentiary, that's what he told me”).
Marshall 2/13/1984 Interview (“Q: Okay. Were you on parole at the time you met him? A: Yes sir I was”).
Marshall 2/13/1984 Interview (“A: Well, I'm bisexual and, and you know, I like young guys. Q: Uh huh. [ ] Did, um, Kenneth Lang know this, did you let him know that? A: I let him knows it before, you know, he moved in”).
Marshall 2/13/1984 Interview (“I just told him that I was bisexual but, uh, you know he told me he didn't care, you know he'd been in the penitentiary, you know, but, uh, he don't go that route you know”).
Marshall also related the following exchange regarding petitioner's handgun:
“He just paid the rent and then at the time, uh, he showed me a gun and, uh, I asked him you know what he's doing with it, why he carried that and he told me that you know he be robbing faggots that pick him up on the street out here on, on 4th and Yamhill.... So at the time I was on parole and I just told him that, um, I couldn't let him live here with me because I can be violated and so he came back later with some older guy, white guy with him and, uh, told me that, uh, well he was gonna move out anyway....”
Marshall 2/13/1984 Interview. See also id. (“[Y]ou know guys pick him up on the, you know be passing by on the street downtown, you know, where they hustle at, they pick him up and instead of him, you know, let[ting] them do it [ ] he'll rob ‘em, that's what he told me.... [H]e told me so far since the time I know him he said he did it probably eight times, nine times here in Portland.... But I know everywhere he went he had that gun with him, he had it tucked down in his, his bellybutton, you know, in a paper bag”).
With respect to the purported sexual encounter, the following exchange occurred:
“Q. Let me ask you this, um, did he ever spend the night with you?
A: No. Un-uh. He just came back later on with some other white dude, with blond hair and got his clothes.
Q: Uh-huh. Did he ever sleep with you?
A: No, he didn't sleep with me.
Q: Did you guys ever have an affair together?
A: Uh, we started but that was it. But he didn't sleep with me.
Q: Okay, explain that to me. What went down?
A: Well, uh, when I told him I was bi at the time I think he was loaded on something anyway, I don't know for sure, and, uh, he started letting me give him head but he stopped.
Q: Uh-huh. Okay. Um, what's your recollection of the, uh, conversation you had?
Q: Well, Donnie, when Jim [Bellah] and I were in here talking and we, ah, told you about, kind of about this case and when we asked if you had ever had a relationship with Ken, well you told me and what I put in the report here is that, uh, that he had stayed with you, that you had slept together while he was staying at your residence and engaged in homosexual lovemaking. Now, maybe, maybe you meant that, uh, you just gave him [ ] head once or something but this is what you told us. [ ] We're not so concerned that you had an affair with him or anything like that, it is just that we want to know for certain whether he's that kind of person, or, or, or not, you know. Um, if it happened tell us you know. We just, I'm just after the truth, you know, that's all I want to know.
A: Well, um, I mean I told this gentleman that, but I just didn't want to get involved in this, but, um, I don't consider, I don't, him being, uh I don't consider him being gay. I think the reason why he let me did it because he gave me $50 rent and made the difference up that way.
* * *
Q: The night that, um, you were giving him head okay, um, he was aware of what was going on?
A: Oh yeah, you, you know ...
Q: I mean was it your idea or his idea or ...
A: Well, you know when he gave me $50 you know down on the rent and, um, he told me that he was going out and make some more money just like that and I said well, I said, if you can just make the difference up with me that way.
Q: Uh-huh.
A: And uh, so he did, he took his clothes off and ... and, uh ...
Q: Did he ejaculate?
A: Uh-huh.
Q: So he went all the way with it?
A: Yeah, I just don't like some stuff like that on the-”
Marshall 2/13/1984 Interview.
At the end of the interview, either Kell or Watkins said: “You're not in any trouble at all, you know, listen, we're just asking, trying to find out, ah, to help these people out down south.”
Marshall 2/13/1984 Interview.
On July 24, 1984, deputy district attorney Michael Scott and Detective Bruce Correll traveled to Portland. Correll independently recalls that “Marshall portrayed Lang as a person who went to the ‘camp’ area in Portland to rob males who had stopped there to pick up young men for sexual activities. I recall that Marshall expressed amusement that Lang would later claim he was repulsed by a homosexual advance.” Correll's contemporaneous report states that Marshall told Correll and Scott “that in exchange for $50.00 rent due on Lang's portion of the rent, Lang had allowed him to orally copulate him.” At his 2002 deposition, Correll recalled the following conversation with Scott:
Declaration of Bruce Correll (“Correll Decl.”), Docket No. 317 (Oct. 8, 2002), ¶ 4.
Correll Decl., Exh. A (“Correll Report”) at 4. Correll quotes this language in his declaration and states that the report “accurately described Marshall's statements during the interview.” ( Id., ¶¶ 2-3.)
“I certainly remember discussion with Mike [Scott], after we had met with Donnie Marshall, and we were both very convinced that Mr. Marshall was being truthful with us in the totality of explaining to us what type of person Mr. Lang was, how he operated, the areas that he operated. And Mike and I visited those areas in Portland [described by Marshall]. Mike was convinced that Mr. Lang's claim of homosexual outrage was untruthful.”
Correll Depo. at 22:18-25.
“Certainly we told him who we were and what we were investigating. And I clearly recall sitting there in his living room, Michael and I, and he was, I think, on a sofa. He was very relaxed. And he-I have this clear recollection how amused he was that Mr. Lang would claim that he was repulsed by someone-by a homosexual male making an advance on him. I have this recollection that he was amused by that, that it was like he was amused, that this was a very ridiculous thing for Lang to say, and him telling us about Lang living there. I believe he mentioned that he'd had some homosexual relations with Mr. Lang; and that he portrayed Mr. Lang as a person who went down to this areas that I mentioned earlier in Portland to rob males who stopped there to pick up young men for sexual activities.”
Correll Depo. at 32:6-22.
Scott's 2002 declaration offers much the same account of the interview:
“Prior to the trial, I interviewed Marshall at his residence in Portland, Oregon. I was accompanied by then-detective Bruce Correll of the Santa Barbara Sheriff's Department. Prior to the interview I identified myself to Marshall, as did Detective Correll. In terms of demeanor, Marshall appeared very cooperative and forthcoming during the interview. Marshall made jokes during the interview and spoke very freely and somewhat comically about Lang. It did not appear that Marshall had rehearsed his statements, or that he had been intimidated by anyone to say what he had to say. He did not appear to be parroting any script.”
Declaration of Michael Scott (“Scott Decl.”), Docket No. 331 (Oct. 9, 2002), ¶ 2. See also id., ¶ 4 (“At no time during my dealings with Marshall did I threaten, bribe or coerce him in any way. I did not knowingly obtain false testimony from Marshall, nor-to my knowledge-did anyone else. I never told Marshall that if he did not testify in a manner that favored the prosecution, his parole would be revoked. To my knowledge, no other person made such a threat to Marshall either. Nor did I engage in any rehearsal with Marshall of his rendition of any statements or testimony. Nor did I witness any other law enforcement representative or any other person engaging in any such alleged misconduct”).
Scott knew that Marshall had prior convictions, but could not detail the precise nature of his knowledge during his 2001 deposition. Scott said that the notion of offering Marshall a deal never came up because Marshall was not a suspect in the investigation and Scott therefore had no leverage and nothing to offer him. Scott indicated that Marshall appeared coherent, lucid and not under the influence of alcohol or drugs. Scott offered the following opinion of Marshall:
Deposition of Michael John Scott (“Scott Depo.”), Docket No. 350 (Nov. 29, 2001) at 24:20-25, 25:1 (“I believe that before the interview I was informed that he had priors for something. At the time I don't recall what I was told, but I don't know whether Chuck Watkins had run him, or Detective Correll had run him, but I do recall going into the interview knowing that he was not pure, Mr. Marshall”).
Scott Depo. at 27;12-25 (“We had nothing on Mr. Marshall, so there was no-we had no leverage, in other words, that-he wasn't a suspect in this case. We just-he was going to be a witness. So, I don't recall him asking for any sort of promises, or making any promises, or his asking for any kind of assurances. I don't remember him even talking about any difficulties he might have been having at the time. But we would not have been in a position to offer him anything because he wasn't a suspect. We didn't have anything on him. There may have been discussions about his, if the case went to trial would we put him up and fly him down and things like that, but that's about it”).
Scott Depo. at 28:6-15 (“I don't recollect him being loaded when he spoke with us. I mean he didn't-I don't remember him being-he seemed alert, responsive, coherent. He didn't, as I recall, manifest any symptoms that would suggest he was presently under the influence of anything. But, if, you know, would I be surprised if he used drugs and drank? No. I mean, but he didn't seem to indicate or suggest to me that he was under the influence when we talked with him”).
“My impression is he was so outgoing, he was so affable, unlike a lot of witnesses one runs into when you become prosecutor trying a case, they don't want to say anything. He was just very garrulous. He was talking and joking, and he did not seem to be under any stress or strain. He talked very freely and somewhat comically about his relationship with Mr. Lang. He didn't seem concerned about any repercussions that he might suffer as a result of speaking so freely about Mr. Lang. So to suggest that he had somehow been given a script, I never told him what to say. I was very pleased with what he had to say when I first spoke with him in Portland. And the things that he had to say many of them I was able to use at trial, some I was not able to, the judge excluded them. But, he did not give me any sense that he was going off a script or that he had been intimidated by anybody to say what he had to say. He was not nervous, he was very relaxed. And to suggest that he was told what to say, that certainly-I didn't tell him what to say. And based on what he presented when I first met him, he was talking very freely. He wasn't parroting any kind of script.”
Scott Depo. at 41:4-25.
Correll and Scott spoke with Marshall in Santa Maria again before he testified. Correll recalls that Marshall was “much like he was in Portland. He was very friendly. He was very relaxed. And my recollection is Mr. Marshall had a good sense of humor, so he was making jokes and things when I talked to him.”
Scott Decl., ¶ 3 (“Subsequently, and just prior to his trial testimony, I briefly spoke with Marshall in Santa Barbara”).
Correll Depo. at 33:23-25, 34:1-2.
Defense investigator Ballew also interviewed Marshall. Her interview was tape recorded. Although the audiotape has been lost, a tape was transcribed and the transcript is available. Given that Ballew did not travel to Portland until July 26, 1984, it appears that her interview of Marshall followed the Kell-Bellah, Watkins-Kell and Scott-Correll interviews in Portland. Marshall told Ballew that petitioner knew he was bisexual before petitioner moved in. He also told her about his sexual encounter with petitioner. Marshall also recounted that petitioner robbed gay men who picked him up. Marshall opined, however, that he did not believe petitioner had committed the crime with which he was charged:
Petitioner's Exh. 104 (“Ballew/Marshall Notes”), at DB0538 (“[Q:] Who have you spoken to about Mr. Lang? [A:] Well, all I know is the D.A. from Santa Barbara and a detective from Santa Barbara. [Q:] Do you remember how long ago it was that you spoke to them? [A:] The first one came out about, I think it was two months ago. It was a detective from Santa Barbara and a detective from Portland. Then two weeks ago it was the detective from Santa Barbara and a District Attorney from Santa Barbara”). Marshall suggests that only two interviews with law enforcement occurred in Portland, a misapprehension he reiterated during his 2001 deposition.
Ballew/Marshall Notes at DB0541 (“[Q:] It was $50 down, what was the agreement about the total amount? [A: ] Well, the total amount would have been $125, but I told him before he moved in that I was bi-sexual and he said well that didn't make no difference. [Q:] Did he say he was bi-sexual or homosexual? [A:] No, he never did say that to me. [Q:] Did he say he was heterosexual? ... [A:] Yeah, he liked women”); id. (“[A:] Well, I mean, I asked him, you know, could I give him head.... [Q:] How about, did it go beyond that? Your asking what.... [A:] Well, he told me it was okay”); id. at DB0542-43 (“[Q:] Okay, when you made the pass at him, how did he respond? [A:] He didn't care. He got naked, laid on the floor and I did it. [Q:] There was no conversation? [A:] No, he said he enjoyed it”).
Ballew/Marshall Notes at DB0542-43 (“[H]e didn't [live with me and] he went out and before he went out, he showed me a pistol and I told him he was going to get in a lot of trouble with that but he told me he was a little gangster and that's how he made his living, rolling faggots, you know, older mans”); id. at DB0546 (“[H]e told me that he go out and roll faggots. And [I] asked him do you do anything with them, he said no, and I asked him how come he did it with me he said well you seem like you're a nice guy and you know my cousin. That's what he told me. But he didn't tell me he'd go out, you know, shooting them and hurting them or nothing. He told me he'd just scare them, you know”).
“Because he just didn't seem like a violent man to me. He, every time I saw him, he had a kind word to say to anybody. And I know a lot of people to carry weapons and don't use it. Only think I can say, I don't know for sure, maybe the person that he supposed to shot might have tried to cause him some harm and he [was] probably protecting himself. I don't know but he just didn't, because I look at it this way, he didn't put up a fight with me and I figure that if, you know, that if I had tried to do something to[ ] him against his will he would have to protect himself. Something, maybe, that he was in this, he was in a position that he didn't have no choice but [to] protect himself. I mean, that's the way I look at it, I don't care how the police look at it, that's the way I look at it. He just don't give the impression he's that type of person who would go around hurting people. You know, sure he'd do drugs and stuff but that's nothing, everybody do that as far as I'm concerned.”
Ballew/Marshall Notes at DB0547.
“Well, I didn't feel scared or nervous because Lang just didn't give me the impression that he was the type of person who's go around hurting people because I'm talked to[ ] him more than one time before I ever brought him to my house, downtown, and he just didn't give me that impression.”
Ballew/Marshall Notes at DB0555.
Marshall said that although there had been a sexual encounter, he was certain petitioner was heterosexual.
Ballew/Marshall Notes at DB0556 (“I know for a fact that Lang is not homosexual.... That's right, I've seen him with too many women. No, I know for a fact that he wasn't a homosexual”).
At trial, Marshall gave largely the same testimony:
“Q. Prior to his moving in with you, did you let him know what your sexual preference was?
A. Yes.
Q. The defendant didn't stay with you very long, did he?
A. No, he didn't spend the night, or nothing like that.[ ]
At both the Kell-Bellah and the Watkins-Kell interviews in Portland, Marshall alluded to the fact that petitioner had lived with him for some period of time and that Marshall had asked petitioner to leave when he learned that petitioner possessed a handgun. At trial, however, Marshall abandoned this narrative and told a story similar to petitioner's, i.e., that petitioner never spent a night in Marshall's apartment.
Q. Approximately how many times, if you recall, did you see the defendant in the camp area of Portland?
A. Well, I mostly seen him on Fifth Street; the same thing like the camp area, everybody hangs out there because if they selling drugs or hustling or ripping somebody off or whatever, they're looking to pick up on somebody.
* * *
Q. Did you ever see the defendant with any type of weapon?
A. Yes.
Q. What kind of weapon was that?
A. Pistol.
* * *
Q. During your acquaintanceship with the defendant Lang, did you ever make any homosexual proposition to the defendant Lang?
A. Yes, sir.
Q. What did you say to him?
A. Well, I asked him could I give him some head.
Q. Give him some head?
A. Yes.
Q. What do you mean by head, sir?
A. Well, going down on him.
Q. I guess the-by law that would be oral copulation?
A. Yes....
Q. When you made that proposition to the defendant did he become angry?
A. No, sir.
Q. Did he push you or use any physical violence on you?
A. No, sir.
Q. Did he attempt to discourage you in any way?
A. No, sir.
Q. Did he use his gun on you?
A. No, sir.
Q. Did he seem disturbed in any way by your tendering that proposition to him?
A. No, sir.”
Trial Transcript at 2311:1-24, 2312:21-28, 2313:1-28, 2314:1-2.
Marshall's direct examination consumed approximately six pages of trial transcript. He was not cross-examined.
3. Marshall's Recantation
In post-conviction proceedings, Marshall offered testimony that contradicted his trial testimony and the accounts of Scott, Watkins, Kell, Bellah, Correll, and Ballew. Marshall signed a declaration in 1993, and a second, substantially identical one in 1998. Although he could not identify the individuals involved by name, he recalled a first meeting during which a Portland detective told him that if he did not cooperate, the detective would report him for a parole violation and return Marshall to the state penitentiary. During this interview, Marshall told the detective that he, not petitioner, had been the aggressor in the sexual encounter; that Marshall had lied about his sexual orientation to get petitioner into his apartment; and that petitioner had been “heavily drugged and not aware” at the time the sexual act occurred. After petitioner became aware of what was occurring, Marshall stated, he became “frightened[,] ... confused” and “very upset” and left Marshall's apartment immediately. Marshall asserted that the Portland detective and a Santa Barbara investigator had forbidden him from revealing these facts. Instead, he said,
Declaration of Donnie Marshall (“Marshall 8/17/98 Decl.”) Docket No. 351 (Aug. 17, 1998), ¶ 2 (“I was first contacted about Ken Lang's case by a Portland Detective. He specifically told me that if I did not cooperate, the police would violate my parole and they would return me to the State Penitentiary. This scared me and I cooperated with the detective. However, when I started answering questions and telling the police about my knowledge of[ ] and experience with Ken, they told me that what I had to say was not what they wanted to hear. I told them that I had been the aggressor and lied to Ken to get him into my apartment because I did not believe Ken would have willingly come into my apartment if he knew I was a homosexual. I told them Ken would not have willingly consented to a sexual act. I told them that Ken had been heavily drugged and was not aware that I was pulling his pants down and orally copulating him until I was already orally copulating him. I told them Ken was not a homosexual. I told them I did not see Ken in the homosexual neighborhood of Portland. I told them that Ken seemed frightened and confused. I told them that Ken was very upset when he left my apartment. The Portland Detective and the Santa Barbara Investigator forbade me to reveal any of the above facts”). In his 1993 declaration, Marshall stated that he made a pass at petitioner, and petitioner rebuffed his advances. Marshall said that he then gave petitioner whiskey, followed by marijuana, and possibly other drugs, such as acid or speed. (Marshall 9/16/93 Decl. at 3-4 (“I knew about Ken and who he was before I actually met him. I saw him with Jim Lord on the streets of Portland in the summer of 1983. It was in the area of Fifth Street, where everything was going on. Drugs, prostitution, all kinds of hustling went on on Fifth Street. I asked Lord about Ken because I liked the way Ken looked. Lord told me that Ken was definitely not into men and was ‘straight.’ When I met Ken, I made it a point not to let on that I liked men. At one point, Ken needed a place to live and I told him that he could share my apartment. I didn't want him to know I was into guys, because I wanted him to move in. We spoke on the street and went to my house. When we got to my apartment, I made a pass at Ken and he refused. I had whiskey and gave Ken whiskey to drink and I also drank the whiskey. I also knew that Ken had smoked some weed. At the time, I was really into drugs, mostly acid and speed. I always drank Old Crow or Old Grand Dad. I know that I gave Ken some drugs and whiskey, thinking that if he was high enough, we could get together. It was after he was drunk and stoned that I told him that I would let him slide for part of the rent if I could perform oral sex on him. Ken was broke and agreed, but only because I tricked him. I got him really messed up on drugs and really drunk. I really took advantage of him. I was also feeling good. During the act, Ken did not enjoy it and did not get off. Afterwards, he collected his things and split right away. He never lived with me. He never even stayed the night. I think he left when he realized what had happened with me”).)
“[t]hey specifically instructed me to testify that sex with a guy did not bother Ken. This was a lie. Ken was obviously upset with the act I performed on him when he was drugged. They specifically told me to testify that Ken told me he robbed faggots. This was a lie. Ken never told me that or anything like that. They told me that I had to say that Ken willingly participated in a sexual act with me. This was a lie. Ken was too heavily drugged to willingly participate and would not have let me do it if he had not been drugged. They also told me to say that Ken carried a gun all the time. This was a lie because I had no idea whether Ken carried a gun or not. They told me to testify that Ken said he used a gun to threaten men he robbed. This was a lie. Ken never told me that or anything like that.”
Marshall 8/17/98 Decl., ¶ 3. In addition, Marshall contended that he did not see petitioner carrying a gun around Portland, but only saw petitioner's handgun on the one night that petitioner came to Marshall's apartment when it fell out of a bag he was carrying. Marshall 9/16/93 Decl. at 1 (“After that, the same detective and another detective or D.A. from California came to my house with pictures and I recognized the gun Ken had at my apartment. I only saw the gun because when Ken was at my apartment it fell out of his bag. At the time the detectives came to my house the second time, I had just gotten off parole and they told me if I didn't cooperate, and say just what they wanted me to say, I would be arrested for withholding evidence. All they really wanted to know was did I have anything to do with Ken sexually and did he try to kill me for it. They explained that Ken was charged with murdering a man Ken said molested him or tried to molest him”); Marshall 8/17/98 Decl., ¶ 9 (“In my statement where I said Ken told me he had robbed people about eight or nine times in Portland, that was not true and was a complete fabrication. Where I stated that Ken carried his gun tucked in his pants, that too, is a lie. I never even once saw Ken with a gun on his person. The only time I ever saw a gun was the night Ken came to my house and had it in a brown paper bag. I was lying when I said that he carried the gun everywhere. The police instructed me to say that Ken carried a gun all the time and that he carried the gun I had identified in the photographs they brought and showed to me”); Marshall 9/16/93 Decl. at 4 (“When Ken was at my apartment, he had a pistol. I knew about it because it fell out of his bag. I asked Ken about it. He said he carried it for protection. That made sense to me since the area in Portland was rough, even though Ken did not seem to me to be at all violent or to be a hood. In fact, I remember thinking that the man he shot must have really done something like molest him, like Ken said he did, for Ken to shoot him. I know he was really opposed to gay stuff”).
In his 1998 declaration, Marshall recalled a second meeting, in which the Portland detective was accompanied by a Santa Barbara investigator. Marshall asserted that during this meeting, the detective and investigator instructed him to “make Ken seem as bad as possible” and gave him largely the same instructions he received during the first meeting. Marshall said in 1998 that he was “certain that the police [had] ... contacted [his] parole officer” and that the officers would have charged him with a parole violation if he had not cooperated. He also said that they instructed him not to speak with anybody about the case except law enforcement.
Marshall 8/17/98 Decl., ¶ 4 (“When the Portland Detective came with the Investigator from Santa Barbara, they told me that I had to make Ken seem as bad as possible. They specifically instructed me to say that sex with a guy did not bother Ken and that Ken told me he robbed faggots. They told me to never say that Ken was under the influence of drugs or alcohol at the time I orally copulated him. I was told not to say that Ken did not know I engaged in homosexual acts before coming over to my house. They told me not to reveal the fact that I lured Ken to my house, that I thought Ken was not a homosexual and would never have agreed to sex with me or any man and that in fact he did not agree to have sex with me. They also told me to make it seem like homosexual activity [ ]dominated the camp area of downtown Portland. The police wanted it to seem like it was all one big area-the area where drugs were used, bought and sold, the area where the women walked the streets, the area where young runaway boys and girls hung out and the area where men cruised for other men. In fact, they really wanted me to portray the area as predominately men cruising for other men with whom to engage in sexual conduct. The truth is that the area where the homosexual cruising [took] place [was] a few blocks removed from the camp area where everything else [went] on. I never saw Ken in the homosexual area. I always saw him in the main camp area. The homosexual cruising area was a specific stretch where gay cruising took place and I always saw Ken talking to women, not to the men”); id., ¶ 5 (“The police coached me to say what they needed me to say. They told me not to reveal that Ken was high or in any way under the influence of drugs and alcohol when I orally copulated him. They told me that I had to say that Ken willingly participated in a sexual act with me. They also told me to say that Ken carried a gun all the time and that Ken told me he robbed men he picked up downtown and used the gun to threaten them”). In his 1993 declaration, Marshall stated that the two people who came to his apartment for the second meeting were “the same detective [who had come once before] and another detective or D.A. from California....” Marshall 9/16/93 Decl. at 1. This statement, and the statement that “a Portland detective came to my house and showed me about four pictures and asked if I recognized any of the people in the photos” ( id.), appear to indicate that Marshall did not recall a second officer being at the first meeting.
Marshall 8/17/98 Decl., ¶ 6 (“I am certain that the police even contacted my parole officer. I truly believe that the police would have charged me with a violation that would have revoked my parole. They would not have to make anything up to have done it either. Back then, I was still engaged in illicit drug use and sexual activity that could easily have landed me in prison”).
Marshall 8/17/98 Decl., ¶ 7 (“During the process of speaking with the detectives, they also told me not to speak with anybody but the police or the DA's office. They instructed me that if anybody tried to speak with me, I should refer them to the DA because I was a key witness. They told me this while I was in Portland and again when I was flown down to California. The encounter with the police and the District Attorney's office over Ken's case was very disturbing for me and upset me quite a bit. I felt I had no choice but to conceal what the police and DA wanted me to conceal and to provide the information they supplied me with that I did not personally know to be true or false”).
As respects the tape-recorded statement that Watkins and Kell took, Marshall reported in his 1998 declaration that he had “practiced [his statement] at length before it was recorded. The police really wanted to make sure I knew what I was supposed to say. They coached me so well that I was able to make some things up as I went along.” Marshall stated that, in the course of rehearsing the statement, he began to concoct lies on his own, believing that he understood the tenor of the story the officers wanted to hear. He cited the statement that petitioner had a lot of money, once over $1,000, as something that he fabricated independently and not in response to a specific request by a law enforcement officer.
Marshall 8/17/98 Decl., ¶ 8 (“The statement I gave when the police turned on the tape recorder was practiced at length before it was recorded. The police really wanted to make sure I knew what I was supposed to say. They coached me so well that I was able to make some things up as I went along. There are many things in that recorded statement that are not true. For example, where I state that I told Ken that I was a bisexual prior to him coming to my apartment is false. I never revealed my sexual interest in the same gender prior to Ken's arrival at my apartment. In fact, I was in the process of luring Ken to my apartment to try and have a sexual encounter with him.... I intentionally withheld my sexual interest because I did not want to scare Ken away because I was hoping to score with him sexually. By the time he came to my apartment the first time, I had already seen him on the street a few times. I totally orchestrated my meeting with him through his cousin”).
Marshall 8/17/98 Decl., ¶ 10 (“In my statement where I reported that I once saw Ken with a lot of money, over $1,000, that too was a lie. That part I made up on my own. The way the statement came out was that there were certain specific things I was told to say and other things I was told to conceal. We had practiced quite a bit before the recorder was turned on so that by the time the ‘official’ statement was recorded, I felt pretty confident that I knew what the police wanted from me”). See also Marshall 9/16/93 Decl. at 2-3 (“Before the detectives recorded my statement, they discussed with me what it is they wanted me to testify about. They asked me a lot of questions, in ways that would give them the [ ] information they wanted, and rehearsed what I was supposed to say before it was recorded. Also, they told me that they heard stories about Ken taking men's money and being a gangster, which they wanted me to confirm. As far as I know, this was not true, and I told them that. During the time this all went on, I was drinking at least a fifth of whiskey a day. I also dropped acid, and did other drugs. I was constantly high, especially one time that I talked to the detectives”).
Marshall was deposed in 2001. At the deposition, respondent's counsel examined him at length. One topic discussed repeatedly during the deposition is Marshall's belief that his parole officer had been contacted. Marshall said that his former parole officer, whose name he could not recall, had telephoned after he had been fired. Marshall stated the parole officer said that he had been asked by a detective to threaten Marshall into cooperating, but had refused. Marshall testified that he had this contact with his former parole officer after all of the law enforcement interviews had taken place, but before he met with Ballew. He said he knew that the investigators could not violate him and thus pressured his former probation officer to threaten to do so unless he cooperated. He said the former probation officer simply told him to tell the truth.
Deposition of Donnie Marshall (“Marshall Depo.”), Docket No. 351 (Sept. 21, 2001) at 16:19-25, 17:1-5 (“Q. With respect to the sentence that you are certain the police contacted your parole officer, how do you know that? A. My parole officer told me. Q. Would you please explain that? A. My parole officer told me-he told one day he got fired for some reason. He said because he didn't like a woman being his boss. And he told me the detective called him to try to force me into line, to threaten me-you know-to threaten me to send me back to the penitentiary, and he refused to do it”). In addition to the transcript of Marshall's deposition, to which neither party objected, petitioner lodged a videotape of the deposition. (Docket No. 415 (Feb. 10, 2003).) The court has reviewed the videotape in order to assess Marshall's credibility. Because, however, neither party objected to introduction of the deposition transcript, which was created by a certified court reporter, the court cites page and line references from that transcript.
Marshall Depo. at 77:8-18 (“My parole officer, when he got fired he contacted me, let me know he wasn't my probation officer anymore. He told me the[re] was a detective called him about something to do with the Lang murder case, that they wanted him to put pressure on me to say this and say that or else he would revoke me, and he refused to do it. That's what my probation officer told me. Q. When did he tell you that? A. He told me that after the officers didn't come to my house anymore”); id. at 78:20-24 (“Q. Did your probation officer advise you of what you've just described him telling you before or after you talked to that woman? A. Before I talked to the woman”).
Marshall Depo. at 78:4-8 (“The investigator wasn't going to violate my parole. They wanted my probation officer to force me to go along with them and if I didn't violate my parole, not them. The probation officer. And he refused to do it”); id. at 78:23-24 (“And my probation officer told me to tell the truth”).
Marshall's testimony is implausible and inconsistent. He says he knew the investigators could not violate his parole, and portrays his parole officer as someone who did not threaten him and told him to tell the truth. Yet he contends that he testified falsely in part because of a fear that his parole would be violated if he did not. The events he describes are also factually impossible. Respondent has proffered evidence that Marshall's parole term ended on June 9, 1983, before any of the interviews occurred and, indeed, before the murder of Thurman Anderson. Specifically, respondent has submitted a Notice of Discharge dated June 9, 1983. The notice appears to be a copy retained in parole office files; it indicates that an original should have been sent to Marshall. While there is no evidence that the notice was in fact sent, respondent has adduced an original certificate of parole, which states that Marshall's term of parole would end June 9, 1983. This certificate is signed by Marshall. The court finds it implausible that, six months to a year after being released from parole, Marshall believed he was still on parole and parole officers maintained contact with him more than a year after the conclusion of his parole term.
Direct Testimony of Lisa A. Chase for Evidentiary Hearing (“Chase Decl.”), Docket No. 335 (Oct. 8, 2002), Exh. B (“Notice of Discharge”).
Id., Exh. A (“Certificate of Parole”); Errata to Direct Testimony Declaration of Lisa A. Chase for Evidentiary Hearing (“Chase Errata”), Docket No. 335 (Oct. 25, 2002) (“Signature Page”).
Marshall recalled only two visits from investigators. He said he spoke with two Caucasian “old guys in suits” at the first meeting. Marshall acknowledged that these officers did not threaten him. At the second meeting, he stated, one of the officers who had visited him originally was accompanied by a different Caucasian man.
Marshall Depo. at 29:7-11. See also Marshall Depo. at 29:17-25, 30:1-7 (“They came in, and we proceeded to sit down at the kitchen table, and they asked me did I know a Ken. And at the time I didn't remember Ken's name. I said no. So they had some pictures with them. First they showed me three pictures of three different white guys and told me to pick out-do I see anyone there I know to pick it out. And I picked out Ken. Then they put four pictures of a gun-four different guns-pictures on the table and told me to pick out if I seen one of these guys before, and I did. And so they wrote something on both pictures-on the back of the pictures, which I don't know what they wrote back there, but that's what they did”); id. at 58:9-13 (“Q. Do you recall [the first time investigators visited your home] that they both represented the Portland Police Department? A. That's what I thought they-I know one of them's from Portland. I don't know if both of them were from Portland or not. I don't know”); id. at 59:11-21 (“They was older gentlemans. They wasn't no young people. They was older gentlemen. One of them looked like he had some gray and the hair was short. And the other one-you know-he had some hair on his head.... To me they might have been about maybe-I'm going to say about 50. Could have been a little older”).
Marshall Depo. at 61:5-25 (“The first one, the bald head one started talking. They didn't threaten me the first day they came. Like I said, sir, when they first came to my house they knocked on the door, they presented themselves who they was. I let them in my home. We sat at the kitchen table. They asked did I know a Lang. I did not know Lang at the time because I don't remember names. When they put the three pictures on the kitchen table, asked me to point on the table do I know this person-do I see anyone there I know, point it out. I point out Lang. Then, sir, they put four pictures of four different guns on the kitchen table, sir, and asked me if I see a gun that I've seen, point it out to them. I did. And they picked up the pictures, wrote something on the back of the pictures and everything, and I asked them how-why they're here asking me questions, and all they told me at that time they found my name, address and phone number in Lang's possession”).
Marshall Depo. at 31:20-24 (“[The second visit] I think it was a different man, one of them. I know one of the-one of the ones that came the first time came back, but it was a different person came with him. And he was white also”).
At the second meeting, the officers informed Marshall that petitioner had killed someone, and asked about Marshall's and petitioner's sexual encounter. Marshall asserted that when he told the officers that he had used alcohol and drugs to lower petitioner's defenses, they threatened him, saying that they knew he was on parole at that time. After threatening Marshall and explaining what they wanted him to say, the officers turned on the tape recorder. Marshall testified that after rehearsing what he was to say, the officers told him that they intended to record the statement. Marshall testified that he first met an African American investigator, later identified as Watkins, when Watkins picked Marshall up from the airport in Santa Barbara. He said that he first met the district attorney in Scott's office in Santa Maria. Marshall did not recall that Watkins was at the second meeting, as he believed that he had spoken with two Caucasian officers at that time. He also apparently did not recall the meeting with Scott and Correll in Portland.
Marshall Depo. at 32:11-25: 33:1-7 (“That's when they told me that Ken had killed somebody-what you call those-RV things that you drive or something. I don't know. Guy was camping or something and he shot him, and they picked him up at the airport or something using the man's credit card and all of that. And then they went into asking me then-you know-was Ken gay, did I have sex and stuff with him. And when I was telling them the truth they told me they didn't want to hear that. They told me what to say. Q. When you say you told them the truth what do you mean by that? A. I told them that Ken is not gay. I told them Ken likes women. That's all I have seen him with. I told them that I did have sex with Ken, but I got Ken high and drunk and took advantage, that he really didn't have knowledge that I was doing it. When he realized what I was doing he got up and fled out of my home. And they told me they didn't want to hear it that way”).
Marshall Depo. at 33:8-25 (“Q. Did they threaten you in any way? A. Yes, they did. Q. Please tell us what they said? ... [A.] Told me that they would know that I've been in trouble with the law a lot, that I'm on parole now for mail fraud, and if I don't say what they wanted me to say, that Ken gave me permission-you know-to have sex with him and also that I know Ken carried a gun around with him to rob homosexuals and stuff like that, they told me that they would see me being violated, and they told me they personally would see to that. Q. By violated you mean violated on your parole? A. On my parole”); id. at 34:7-14 (“So I did what they asked. They scared me. I did not want to go back to the penitentiary. So they coached me and coached me, that I was really tired of seeing them and calling me on the phone, so I lied to what they wanted me to do. And then-I mean, they had me lying so good so I throwed a little bit in myself just to get them out of my hair”). It appears that Marshall does not recall any other threatening behavior. (Marshall Depo. at 87:22-25 (“Q. Did either one of them raise his voice? A. No, but they made it clear to me-they made it clear to me that with my record they can put me in prison any time”).)
Marshall Depo. at 82:14-22 (“Q. Were you aware during these rehearsals that you were rehearsing for a subsequent tape recorded statement to be made? A. When these officers was talking to me for me to lie they did not have a recorder on. Q. Did they tell you they were going to record your statements? A. Yes, sir. After they told me what to say they told they was going to record”).
Marshall Depo. at 36:9-25, 37:1 (“When I got here in California and when I got to the airport it was a black gentleman, heavy set, dark-skinned man, met me at the airport. Well, I thought he was the district attorney. I didn't know what he was. But the way he was talking and coaching me, you know, I figured that-you know-he was the district attorney. But at the time I was in California as I got-he got me to the office in Santa Barbara I think it was-I think it was Santa Barbara where they took me for that trial-then I talked to a white man. And he weared glasses. He was-I found out later he was the DA. And how I found out he was the DA-he coached me in his office. And then I didn't know he was the DA till I went in the court and got on the stand and seen him questioning me”).
Marshall Depo. at 74:1-10 (“Q.... Can you describe the two Caucasian men in the second meeting? A. Well, it was one of the same men that came out the first time and then there was another man that came out. If I remember right he had a full hair-a lot of hair on his head, if I remember right, and he was kind of heavyset, I think he was. Not fat, but kind of heavyset”).
Respondent's counsel played the tape recording of the Watkins-Kell interview for Marshall during his deposition. After hearing the tape, Marshall's testimony changed fundamentally. He said he now realized that the African American investigator who had picked him up at the airport in Santa Barbara had in fact interviewed him in Portland and that his first meeting with that individual had not been in Santa Barbara. Marshall then stated that neither officer told him what to say on the day the tape was made; rather, he asserted, he had been told what to say during the first interview. This contradicted Marshall's earlier testimony that he had not been told what to say at the first interview. In subsequent testimony, Marshall could not recall which officer had coached him to lie, and when the coaching had occurred. Later, he stated adamantly that all coercion occurred at the first interview, not at the second. He also testified that he did not remember seeing the tape recorder, implying that he was unaware the interview was being recording. This contradicted his earlier testimony that he was told that he was being coached in preparation for a subsequent recording. Toward the end of the deposition, respondent's counsel asked whether there was a third meeting that involved Scott. Marshall could not discount the possibility that he met Scott in Portland, but did not recall that he recognized Scott when he met him in Santa Maria.
Marshall Depo. at 90:17-22 (“Q. So earlier when you described the two investigators that came to your home that day as Caucasian were you mistaken? A. Yes, I was mistaken. I thought both of them was white, but I forgot. You know, it's been a while”); id. at 98:3-8 (“And to be honest with you, he must have been in Portland, but I don't even remember seeing this black man in Portland”).
Marshall Depo. at 97:5-9 (“Q. So nobody told you to say on that day-the day the tape was made you had not been told to say that, correct? A. No. Nobody told me to say it because I was told a day before”); id., 97:17-21 (“Q. And the first time they came to your home you were told by-you were told to say that you had told Lang you were bisexual before he moved in, right? A. Yes”).
Marshall Depo. at 102:18-25, 103:1-14 (“You recall that you said that when you asked Lang why he carried a gun he told you he robbed homosexuals who picked him up on the street in the area of Fourth and Yamhill? A. Yes, sir. Q. When were you told to fabricate that information? A. I was told to say that by the Portland detectives-told me that's what I had to say. Q. Do you recall whether you were told to say that just prior to this tape being made or at a prior meeting? A. I can't say when. All I know-when they came they told me what to say. That's what I did. Q. Can you recall-Can you describe which detective told you to say that Lang told you he picked up homosexuals in the area of Fourth and Yamhill? A. The older bald head officer. White officer”).
Marshall Depo. at 150:7-1 (“When they came to my house the second time, that's when they put the threat on me what to say and you and nobody else is going to change my mind because that's what they did. They forced me to lie on that man”); id. at 150:15-16 (“Sir, I told you that from the beginning. I wasn't threatened at the first time”).
Marshall Depo. at 102:5-17 (“I don't even remember-as a matter of fact, I don't even remember seeing the recorder. See? So as far as I'm concerned that could have had the recorder somewhere in my house and I didn't see it. I know they didn't have it on the table”).
Marshall Depo. at 141:2-11 (“Q. Do you recall that following-that there was a subsequent meeting or a third meeting in Oregon, in Portland, at your apartment involving a sheriff's deputy from Santa Barbara, a prosecutor from Santa Barbara and yourself? A. I don't remember if it is a sheriff come to my house. I don't know-I don't remember all the peoples come to my house, and I definitely didn't know where they came from. All I know, they were polices”); id., 142:16-19 (“[Scott] might have [met me in Portland]. I don't know. All I heard later down the road-somewhere down the toad-he's not a DA no more for some reason”); id. at 142:20-25, 143:1-4 (“Q. We'll get to that. I guess I need to know about your memory. In other words, if you met him in Portland and then you saw him again in California, don't you think you'd remember that? A. In a way, not really, because I have talked to too many different peoples. And like I say-you know-I remember some faces and some faces-you know-you all look all alike to me sometimes, so I don't know. No. I don't remember”).
4. Conclusion regarding Marshall's Recantation
“Recantation testimony is properly viewed with great suspicion. It upsets society's interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. For these reasons, a witness' recantation of trial testimony typically will justify a new trial only where the reviewing judge after analyzing the recantation is satisfied that it is true and that it will ‘render probable a different verdict.’ ” Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 [105 S.Ct. 34, 82 L.Ed.2d 925] (1984) (Brennan, J., dissenting from denial of certiorari) (quoting Brown v. State, 381 So.2d 690, 692-693 (Fla.1980)).
As Justice O'Connor cautioned in her concurrence in Herrera v. Collins, 506 U.S. 390, 423, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), affidavits made many years after trial, purporting to exculpate a convicted prisoner by offering a new version of events, are “not uncommon” and “are to be treated with a fair degree of skepticism.” For these reasons, courts generally have viewed, and properly may view, recantations with some skepticism, if not outright suspicion. See, e.g., Christian v. Frank, 595 F.3d 1076, 1084 n. 11 (9th Cir.2010) (emphasizing that a “later recantation of his trial testimony does not render his earlier testimony false,” quoting Allen, 395 F.3d at 994, and citing Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir.1997) (Kozinski, J., dissenting) (“Recanting testimony has long been disfavored as a basis for a claim of innocence” and is viewed, on review, “with extreme suspicion”); Haouari v. United States, 510 F.3d 350, 353 (2d Cir.2007) (“It is axiomatic that witness recantations ‘must be looked upon with the utmost suspicion,’ ”) quoting Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir.2003));
United States v. Leibowitz, 919 F.2d 482, 483 (7th Cir.1990) (“Judges view recantation dimly”); United States v. Nixon, 881 F.2d 1305, 1311 (5th Cir.1989) (“The recanting of prior testimony by a witness is ordinarily met with extreme skepticism”); United States v. Kearney, 682 F.2d 214, 219 (D.C.Cir.1982) (“Recanting affidavits and witnesses are looked upon with ‘the utmost suspicion’ by the courts,” quoting United States v. Vincent, 491 F.2d 1326, 1332 (2d Cir.1974)); United States v. Ahern, 612 F.2d 507, 509 (10th Cir.1980) (“Recantation of testimony given under oath at trial is not looked upon with favor. Indeed, such is generally looked upon with downright suspicion”); Majoy v. Roe, 651 F.Supp.2d 1065, 1069 (C.D.Cal.2009) (“Because recanted testimony is often the result of self-interested motivations, ‘[r]ecantation testimony is properly viewed with great suspicion,’ ” quoting Dobbert, 468 U.S. at 1233-34, 105 S.Ct. 34 (alteration original)).
Here, more than skepticism causes the court to discount Marshall's recantation. Marshall's deposition is replete with contradictory statements, implausible or impossible factual allegations, and statements that reveal his poor memory of events. Ultimately damning is the fact that Marshall's declarations and deposition repeatedly makes reference to threats revoke or violate his parole despite the fact that his parole term had ended eight months before his first meeting with the Portland investigators and more than a year before he met Scott and Correll. Moreover, Marshall's inconsistent reporting as to who coerced him to give false testimony renders this aspect of his story unreliable. Marshall most frequently asserts that two Portland detectives coerced him during the first interview. This appears implausible, given that the Portland detectives had little motivation to risk their careers by coercing a witness to assist an investigation in another state. To the extent Marshall contends he was first coerced during the second interview, this undercuts the suggestion of coercion altogether since Kell's report of the first interview, prepared contemporaneously and prior to the second interview, stated that Marshall and petitioner engaged in “homosexual lovemaking,” that petitioner carried a handgun, and that petitioner lived with Marshall for several days.
Prior to testifying at petitioner's trial, Marshall was interviewed by the district attorney, a defense investigator, two Portland, Oregon detectives, a Santa Barbara County detective, and an investigator in the Santa Barbara District Attorney's office. Marshall told each the same story. Kell, Watkins, and Correll authored contemporaneous reports reciting essentially the same facts. Watkins and Ballew made tape recordings that also reflected those facts. Despite the extensive evidentiary record created in 1984, there was no evidence or suggestion that Marshall had been coerced or that he was giving false testimony. An individual's “recantation testimony is even more unreliable because his trial testimony implicating [petitioner] is consistent with the other evidence, while his recantation is not.” Allen, 395 F.3d at 994.
Moreover, the court has reviewed the audiotape of the February 13, 1984 interview. It is not indicative of an individual who is being coerced or told to lie. Marshall speaks freely and the questions the officers put to him were neither suggestive nor intimidating. Marshall laughs throughout the interview and makes off-color jokes. It is simply not plausible that Marshall had been threatened with returning to prison for a parole violation and yet was cracking jokes and offering suggestive commentary.
See, e.g., Marshall 2/13/1984 Interview (“Q. Did he ejaculate? A. Uh-huh. [Marshall chuckles.] Q. So he went all the way with it? A. Yeah, I just don't like stuff like that on the.... Q. Well if this is something I'm gonna write anyway, you know. A. Oh, you know I have my pride. [Marshall laughs.]”); id. (“Q. Did he ever orally copulate you? A. No. Q. No? A. Uh-uh. I wish he would have but he didn't. [Marshall laughs.]”). At one point Marshall states that “it took him forever to get off,” but then says “he liked it.” He notes that petitioner “must be one of them long-winded persons” and extends the word “long” so as to emphasize the joke or innuendo. ( Id.) At another point, Marshall laughed for an extended period after noting that petitioner “must have liked it he didn't shoot me.” ( Id.) Marshall described how petitioner dressed and noted that he wore tight blue jeans. Watkins asked if that was to get men to look at him. Marshall said: that “They got me to looked at him,” and laughed. ( Id.) --------
For these reasons, the court concludes that petitioner has presented no credible evidence that any government actor coerced Marshall or that any government actor knew that Marshall had given any false testimony. As a consequence, petitioner's claim under Brady and Mooney-Napue fails.
III. CONCLUSION
For the foregoing reasons, the claim of ineffective assistance of counsel at the guilt phase alleged in petitioner's amended petition for writ of habeas corpus is denied, as is the claim under Brady and Mooney-Napue regarding the false and/or coerced testimony of Donnie Marshall. As respects the bifurcated claim of ineffective assistance of counsel at the penalty phase, the court finds that trial counsel provided deficient performance at the penalty phase.
The court has conducted an extensive and complete review of the evidence that has thus far been presented in this matter. Although, in reaching its decision, the court has considered only evidence that is relevant to the issues addressed in this order, it has nonetheless taken note of the entire evidentiary record. Based on its knowledge of the record, the court is of the view that, at most, limited additional discovery should be required to address whether petitioner suffered prejudice at the penalty phase as a result of counsel's deficient performance. The court directs all parties to evaluate critically whether additional discovery is necessary, to discuss how this matter can be resolved in an expeditious fashion and to file a joint report addressing these issue no later than August 9, 2010. The status report must detail all discovery any party wishes to take, and indicate the purpose for which that discovery is sought. In addition, the status report should provide each party's opinion as to whether the court can assess prejudice on the basis of the extensive record that has already been compiled. Finally, the joint report should propose a schedule for resolution of the prejudice prong of the penalty phase ineffective assistance of counsel claim. --------
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