The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
This capital habeas matter is scheduled for an evidentiary hearing on Petitioner's claim that he is mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S. 304 (2002). The Court has authorized the parties to engage in discovery in advance of the hearing under Rule 6(a) of the Rules Governing Section 2254 Cases (Habeas Rules). Currently pending is Respondent's Motion to Compel Discovery. (Docket No. 92.)
Respondent claims that Petitioner has not complied with his Request for Production No. 1, in which he seeks "all medical records, X-rays or other imaging studies, medical bills and other records which evidence, document, describe, or reflect any medical examination, evaluation, or treatment rendered to Petitioner."
(Docket No. 92.) Although Petitioner has apparently produced most of the medical records in his possession, he has withheld the following: (1) "tests and results conducted or supervised by Craig Beaver, Ph.D., in conjunction with his affidavit with a fax line date of August 22, 1996"; and (2) "the underlying laboratory results and data from the testing conducted on Petitioner at St. Luke's in January of 2009," which were presumably considered by Dr. James Merikangas in reaching his recent conclusion that Petitioner is mentally retarded. (Docket No. 92-2, Exhibit E; Docket No. 62.) Petitioner claims that Dr. Beaver and Dr. Merikangas are non-testifying consulting experts and, as such, he has "not provided records from Drs. Beaver and Merikangas as they are privileged under Federal Rule of Civil Procedure 26(b)(4)(B)." (Docket No. 95, p. 3.)
In the interests of avoiding further delay, the Court will resolve this matter on the briefing and the record without oral argument. For the reasons that follow, the Court shall grant Respondent's Motion, and Petitioner shall be ordered to comply with the discovery request.
In 1986, Petitioner was convicted and sentenced to death for the murders of Berta Herndon and her adult nephew Del Herndon. During the initial post-conviction proceeding, Petitioner hired Dr. Merikangas, who is a neurologist and psychiatrist, to review records in the case. Dr. Merikangas issued a report, dated April 1, 1988, containing his opinion that Petitioner was "a brain damaged individual," but the state district court did not authorize additional funds for Dr. Merikangas to personally examine Petitioner before denying all relief. (State's Lodging B-1, pp. 120, 153-59.)
In the first habeas corpus action in this Court, District Judge Alan A. McDonald granted Petitioner's request to retain Dr. Beaver, a psychologist, for a comprehensive neuropsychological evaluation. (Case No. CV 92-00241-S-AAM, Docket Nos. 64, 88.) After completing the evaluation, Dr. Beaver signed an affidavit, under a faxed date of August 22, 1996 (the "1996 affidavit"), attesting to his belief that Petitioner had significant cognitive and neurological deficits. Petitioner relied on Dr. Beaver's affidavit to support his claims of ineffective assistance of trial counsel, arguing that his appointed counsel were deficient in not uncovering and presenting similar mental health evidence. (Id. at Docket No. 89, pp. 106-08.)
Judge McDonald denied habeas relief. (Case No. CV 92-00241-S-AAM, Docket No. 89.) In affirming that decision on appeal, the Ninth Circuit Court of Appeals discussed Dr. Beaver's affidavit extensively in the context of Petitioner's ineffective assistance of counsel claims. Pizzuto v. Arave, 280 F.3d 949, 962-63 (9th Cir. 2002), amended in part by 385 F.3d 1247.
Nearly one year after the United States Supreme Court decided Atkins, Petitioner filed a successive application for post-conviction relief in state district court, alleging that he is mentally retarded. (State's Lodging J-1, pp. 1-10.) Among other exhibits, he included Dr. Beaver's 1996 affidavit and Dr. Merikangas's 1988 report. (State's Lodging J-1, pp. 85-89, 100-107; Appendices B and C.) In these reports, neither Dr. Beaver nor Dr. Merikangas offered an opinion on whether Petitioner is mentally retarded, but Petitioner also attached to his application a new affidavit from Dr. Beaver, dated June 18, 2003 (the "2003 affidavit"). In this new affidavit, Dr. Beaver indicated that he had reviewed the results of his previous evaluation and that he now believed that Petitioner "likely meets the standard recently enacted in Idaho Code, Section 19-2515A regarding defendants who are mentally retarded and involved in first degree murder proceedings." (State's Lodging J-1, p. 59.) Combined with a 17-year-old report from psychologist Michael Emery, these opinions comprised the initial expert proof that Petitioner offered to support his Atkins claim.
Dr. Beaver later appeared for a third time in the state court Atkins proceeding when Petitioner submitted yet another affidavit from him supporting Petitioner's request for additional mental health testing to determine the "etiology of [Petitioner's mental] limitations" and to resolve whether he "meets the criteria of mental adaptability [in Atkins]." (State's Lodging J-1, pp. 173-76.) By then, Dr. Merikangas had also personally examined Petitioner for mental retardation but he had not yet completed his evaluation, and Petitioner requested that the state district court issue an order allowing Dr. Merikangas to finish his testing. (State's Lodging J-1, pp. 132-33.)
Without expressly ruling on the request for testing or allowing new evidentiary development, the state district court dismissed the petition. (State's Lodging J-2, pp. 309-10.) The Idaho Supreme Court affirmed. Pizzuto v. State, 202 P.3d 642, 649 (Idaho 2008). In doing so, the Idaho Supreme Court addressed Dr. Merikangas's report and Dr. Beaver's affidavits in some detail and concluded that ...