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Bollinger v. Gittere

United States District Court, D. Nevada

June 7, 2019

DAVID BOLLINGER, Petitioner,
v.
WILLIAM GITTERE, et al., Respondents.

          ORDER GRANTING MOTION FOR RELIEF FROM JUDGMENT AND MOTION FOR LEAVE TO SUPPLEMENT PETITION (ECF NOS. 270, 271)

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         In this habeas corpus action, brought by David Bollinger, a Nevada prisoner under sentence of death, the Court denied Bollinger's habeas petition on March 4, 2015 (ECF No. 243), and judgment was entered on March 5, 2015 (ECF No. 244). Bollinger appealed, and the case is pending on appeal in the Ninth Circuit Court of Appeals.

         On August 22, 2018, Bollinger filed a motion for leave to supplement his petition (ECF No. 256), along with the proposed supplement (ECF No. 257), and the following day, August 23, 2018, he filed a motion for relief from judgment (ECF No. 259).[1]

         In an order entered December 13, 2018 (ECF No. 269), the Court determined that, because the case was pending on appeal, it was without jurisdiction to grant the motions, and, therefore, denied the motions without prejudice to Bollinger renewing them if and when the action was remanded from the Court of Appeals. In the December 13 order, this Court included an indicative ruling, under Federal Rule of Civil Procedure 62.1, that Bollinger's motion for relief from the judgment raises a substantial issue. (ECF No. 269 (order entered December 13, 2018).)

         On December 20, 2018, the Court of Appeals ordered a limited remand of this case, pursuant to Federal Rule of Appellate Procedure 12.1(b), for this Court to consider Bollinger's motion for relief from judgment. (See Order entered December 20, 2018, Docket Entry No. 61, in Ninth Circuit Court of Appeals No. 15-99007.)

         On February 19, 2019, Bollinger renewed his motion for relief from judgment (ECF No. 270), and his motion for leave to supplement his petition (ECF No. 271). Respondents filed oppositions to both motions on March 12, 2019 (ECF Nos. 273, 274), and Bollinger filed replies on March 25, 2019 (ECF Nos. 276, 277).

         Bollinger moves for relief from the judgment under Federal Rule of Civil Procedure 60(b)(6). He seeks to return to this Court, and have the judgment vacated, so that he can assert what he characterizes as a new claim for habeas corpus relief, a claim that “participation by the prosecuting agency in an investigation of the trial judge created an intolerable risk of judicial bias.” (ECF No. 257 at 2 (Supplement to Petition).) Bollinger represents that, in 2017, he initiated a habeas action in state court, and the state court held an evidentiary hearing, and as a result of that evidentiary hearing he discovered evidence supporting his new judicial bias claim, as well as evidence supporting an argument that there was cause for any procedural default of the claim. (ECF No. 259 at 3, 7-9, 11, 15 (Motion for Relief from Judgment).)

         Bollinger's third amended habeas petition already includes a claim of judicial bias, in which he asserts that the trial judge, Judge Jerry Whitehead, “could not act with the impartiality and fairness required under the due process clause because he was subject to intense media scrutiny related to an ethics inquiry during the Bollinger proceedings.” (ECF No. 168 at 127-34 (Third Amended Petition).) Bollinger's new claim, Claim 7D, in his proposed supplement to his third amended petition, appears to be substantially different: in Claim 7D, Bollinger asserts that “[p]articipation by the prosecuting agency in an investigation of the trial judge created an intolerable risk of judicial bias.” (ECF No. 257 at 3 (Supplement to Petition for Writ of Habeas Corpus).) Bollinger cites Rippo v. Baker, 137 S.Ct. 905 (2017), and Echavarria v. Filson, 896 F.3d 1118 (9th Cir. 2018), among other cases, as legal support for his new claim. (ECF No. 257 at 6 (Supplement to Petition for Writ of Habeas Corpus).) Bollinger summarizes the factual basis for his new claim as follows:

While prosecuting Mr. Bollinger for capital murder, the Washoe County District Attorney's office (WCDA) was assisting in investigations into Washoe County District Judge Jerry Whitehead. Despite this fact, Judge Whitehead presided over Mr. Bollinger's trial.
Throughout his post-conviction proceedings, Mr. Bollinger has insisted that Judge Whitehead was biased against him. But his initial state post-conviction counsel also represented Judge Whitehead during the various investigations, and they convinced Mr. Bollinger to abandon his claim accusing their far more powerful client of bias.

(ECF No. 270 at 3 (Motion for Relief from Judgment).) More specifically, referring to the transcript of the state court evidentiary hearing held November 2, 2017 (ECF No. 258-1 (Petitioner's Exh. 371)), Bollinger describes as follows the information he claims to have discovered for the first time by means of that evidentiary hearing:

First, former Washoe County Deputy District Attorney Larry Sage testified that (1) around the time of Mr. Bollinger's trial, Mr. Sage was actively participating in the federal criminal investigation into Judge Whitehead, ECF No. 258-1 at 148-52; (2) that participation included Mr. Sage testifying against Judge Whitehead before a federal grand jury, id. at 149-52; and (3) Judge Whitehead was so concerned about the federal criminal investigation that he and his attorney, Mr. [John] Ohlson, confronted Mr. Sage in an attempt to intimidate him into changing his testimony, id. at 152-55, 158-62. Mr. Sage additionally admitted at the November 2017 hearing that he had never before told anyone about his federal grand jury testimony or his confrontation with Judge Whitehead. Id. at 166-67. Mr. Bollinger had not mentioned Mr. Sage in any of his previous federal pleadings because he did not know about this information until the investigation leading to the 2017 evidentiary hearing. Mr. Sage's testimony is newly discovered evidence.
Second, former Washoe County DA Dorothy Nash Holmes testified about the WCDA's involvement in the federal criminal investigation into Judge Whitehead. ECF No. 258-1 at 80, 92-93. Mr. Bollinger previously had only scattered news items suggesting the WCDA's participation in the federal investigation. See ECF No. 258-3. Ms. Holmes's sworn testimony confirming those news items is newly discovered evidence. See Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (rejecting state's argument that “scattered news items and court filings” were sufficient “to put [petitioner] on notice” of facts supporting judicial bias claim).
Third, Mr. Springgate [John Springgate, who, along with John Ohlson, of the firm of Ohlson and Springgate, represented Bollinger in his first state habeas action] testified ...

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