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NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX RONALD GILLETTE, SX-14-CV-439 Petitioner, vs. CALVIN HERBERT, Warden, Golden Grove Adult Correctional Facility, Respondent. MEMORANDUM OPINION! THIS MATTER comes before the Court on Petitioner Ronald E. Gillette’s (hereinafter “Gillette” or “Petitioner”) Motion to Compel Discovery Responses (hereinafter "Motion") filed July 15, 2015. In response, Respondent Diane Prosper (hereinafter "Respondent") filed a Motion to Deny Discovery (hereinafter "Opposition") on July 21, 2015. Gillette filed his reply (hereinafter "Reply") on August 10, 2015. For the reasons stated below, Gillette’s request for discover.y shall be granted and his request for sanctions will be denied. BACKGROUND? Gillette is a repeat sexual offender who was previously incarcerated in New Mexico and allegedly victimized two minors in the Virgin Islands. Gillette was indicted by a federal grand jury with numerous crimes related to his failure to register as a sex offender and his unlawful sexual contact with the two minors. The District Court dismissed the federal crimes and conducted a bench trial on the remaining territorial crimes. Gillette was sentenced to 300 months incarceration at the Golden Grove Correctional Facility.’ ' The Court sua sponte entered an Order amending the caption to substitute Calvin Herbert in place of Mildred Trotter, as Warden of the Golden Grove Adult Correctional Facility. 2 See Gillette v. Ti rotter, 2016 V.1. LEXIS 23 (V.1. Super. Ct. Mar. 21, 2016) (gathering the factual and procedural background from United States v. Gillette, 738 F.3d 63(3d Cir. V.I. 2013), Gillette v. Terr. of the V.1, 563 Fed. Appx. 191 (3d Cir. V.I. 2014) and the record). 3 See United States v. Gillette, 2012 U.S. Dist. LEXIS 37262 (D.V.1., Mar. 20, 2012). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION Gillette challenged his conviction in the district court based on ineffective assistance of counsel, lack of subject matter jurisdiction, violation of due process because of legal incompetence, right to appointed counsel, improper denial of attorney’s motion to withdraw, reasonableness of his sentence, and improperly ordering restitution. The Appellate Division of the District Court of the Virgin Islands affirmed his conviction and sentence.* On June 2, 2014, the Supreme Court of the United States denied Gillette’s writ of certiorari.® Gillette filed a writ of mandamus with the Supreme Court of the Virgin Islands on June 15, 2015. On June 23, 2015, the Superior Court denied Gillette’s motion to transfer or reassign the case because of lack of jurisdiction. See June 23, 2015 Order. On March 21, 2016, this Court denied the Respondent's motion to dismiss as improper and granted the writ of habeas corpus.’ On February 28, 2015, Gillette served the Respondent with Rule 26 Initial Disclosures and a Request for Production of Documents. To date, the Respondent has not responded to the discovery request. Gillette moves this Court to compel discovery responses from the Respondent and for sanctions. JURISDICTION Title 4, Section 76 (a) of the Virgin Islands Code® implicitly repealed the jurisdiction of the District Court of the Virgin Islands over local civil actions.” Consequently, as a successor court to the District Court, the Superior Court has jurisdiction over local habeas petitions even though the District 4 See United States v. Gillette, 738 F.3d 63(3d Cir. V.1. 2013). 5 See Gillette v. Terr. of the V.L, 563 Fed. Appx. 191(3d Cir. V.1. 2014). ° See Gillette v. United States, 134 S. Ct. 2714, 189 L. Ed. 2d 753, 2014 U.S. LEXIS 3925 (U.S., June 2, 2014). 7 See Gillette, 2016 VI LEXIS 23 (holding that petitioner satisfied all of the requirements set forth in 5 V.I.C. §1302 because the petition stated a prima facie case for habeas corpus relief bat was not procedurally barred, and the petition was signed and verified by oath). > 8 Title 4, Section 76 of the Virgin Islands Code provides in pertinent part, “{s]ubject to the original jurisdiction conferred on the District Court by section 22 of the Revised Organic Act of 1954, as amended, effective October 1, 1991, the Superior Court shall have original jurisdiction in all civil actions regardless of the amount in controversy.” See 4 V.I. C. § 76. ° See Mendez v. Gov't of the Virgin Islands, 56 V.1. 194, 203 (VI. 2012) (citing Parrott v. Government of the Virgin Islands, 41 V.I. 188, 620 (D.C.V.I. 1999). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION Court sentenced those prisoners.!° But the District Court retains concurrent jurisdiction over charges alleging local crimes that are related to federal crimes pursuant to the 1984 amendments to the Revised Organic Act."! In other words, because of its expanded jurisdiction, the Superior Court has inherent authority to issue writs of habeas corpus even for prisoners sentenced and committed by the District Court for local crimes.'? Ergo, the Superior Court has jurisdiction to adjudicate Gillette’s habeas corpus petition which seeks to set aside the local offenses," STANDARD OF REVIEW Although the Virgin Islands Code and the Revised Organic Act, codified at 48 U.S.C. § 1561 et seq., govern habeas corpus cases, there is no provision for discovery.!4 Moreover, the federal habeas corpus statute does not apply to the Virgin Islands.'> Therefore, to determine the proper procedure for discovery, the Court will apply the standards articulated by the Supreme Court of California interpreting the California statute which the Virgin Islands habeas statute was modeled.'® Habeas corpus cases are completely separate from the underlying criminal case.!’ “The issue on habeas corpus is not defendant’s guilt or innocence or the appropriate punishment but whether the defendant (designated the petitioner on habeas corpus) can establish some basis for overturning the underlying judgment.”!® As such, “there is no federal right, constitutional or otherwise, to discovery in '0 See Rivera-Moreno v. Government of the Virgin Islands, 61 V1. 279, 306 (V.L. 2014) (citing Parrot 230 F.3d at 620). 1! See id. at 305 (internal quotation marks omitted). 12 See Joseph v. De Castro, 805 F. Supp. 1242, 1256 (D.V.1. 1992) See e.g. Rivera-Moreno, 61 V.1. at 306 (collecting cases). Bld n9. '4 Id, at 296-97(citations omitted). Cf Mitchell v. Wilson, 62 V.1. 326, 330 (Super. Ct. 2015). 'S See Rodriguez v. Bureau of Corr., 58 V.1. 367, 387 (2013). 16 See Rivera-Moreno, 61 V.1. at 303; see also Mosby v. Mullgrav, 2016 V.1. Supreme LEXIS 28, at *7 (V.I. July 12, 2016) (the Supreme Court applied a decision of the Supreme Court of California interpreting the California statute from which the Virgin Islands habeas corpus statute had been borrowed). 7 See In re Scott, 29 Cal. 4th 783, 815, 129 Cal. Rptr. 2d 605, 625-26 (2003) (a habeas corpus proceeding like this one is civil in nature .... It is not itself a criminal case, and it cannot result in added punishment for the petitioner. Rather, it is an independent action the defendant in the earlier criminal case institutes to challenge the results of that case). 18 See People v. Superior Court (Pearson), 48 Cal. 4th 564, 572 (2010). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION a habeas corpus proceeding.”! Courts have sole discretion to authorize discovery in habeas corpus cases.” The trial court has the power to order discovery when requested by a party, or in the absence of a discovery request by a party.?! The discovery rules governing state habeas proceedings are succinctly summarized as follows:?2 Unless discovery is necessary to protect a postconviction applicant's substantial rights, the court is not required to order discovery. The standard for allowing discovery is sometimes stated in terms of whether there is "good reason" or "good cause" to permit discovery. Where discovery is permitted, a trial court may place limitations on its sources and scope. Where a discovery request amounts to a fishing expedition undertaken in an attempt to create some doubt as to the petitioner's guilt, the request is properly denied. Likewise, prisoners cannot seek discovery at the postconviction stage if the requested evidence could have been obtained at trial. As mentioned supra, habeas corpus cases do not provide a petitioner with unfettered access to everything in the prosecutor’s possession.”? However, even absent a request, the prosecution has a well-established constitutional duty to disclose Brady material— exculpatory and impeachment evidence.”4 DISCUSSION Gillette argues that the Respondent is required to respond to his discovery request under the Federal Rules of Civil Procedure. Along with Rule 26 Initial Disclosures, Gillette requests the production of: 1. A copy of the USVI Department of Justice's file (both hardcopy and electronic) regarding Mr. Gillette. 2. A copy of the USVI Bureau of Corrections’ file (both hardcopy and electronic) regarding Mr. Gillette. 3. Acopy of the Golden Grove Adult Correctional Facility file (both hardcopy and electronic) regarding Mr. Gillette. '9 See In re Lawley, 42 Cal. 4th 1231, 1249 (2008) (citations omitted). 20 Id 2! See Bd. of Prison Terms, 130 Cal. App. 4th 1212, 1242 (2005). 22 Laurie L. Levenson, Symposium Article: Searching For Injustice: The Challenge Of Postconviction Discovery, Investigation, And Litigation, 87 S. CAL. L. REV. 545, 548 (2014). 3 See Kennedy v. Superior Court, 145 Cal. App. 4th 359, 366, 51 Cal. Rptr. 3d 637, 646 (2006). 4 See Gonzalez, 51 Cal. 3d at 1260-61 (Noting that [even] after a conviction the prosecutor . . . is bound by the ethics of his office to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.); see also Brady v. Maryland 373 US. 83, 87 (1963). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION In addition, Gillette moves for sanctions of an award of reasonable attorney’s fees pursuant to Local Rule of Civil Procedure 37.3. In opposition, relying on the holdings in U. S. Supreme Court cases Bracy v. Gramley 75 and Harris v. Nelson”® the Respondent asserts that Gillette's motion for discovery should be denied because the broad rules of discovery in the Federal Rules of Civil Procedure do not apply in habeas corpus proceedings. Moreover, applying Rule 6 (a) of the Rules Governing Section 2254 and 2255 federal habeas cases, the Respondent asserts that Gillette's discovery request should be denied because he has not shown good cause for production of the documents as required under Bracy and Harris. Opposition at 1-3. In support, the Respondent argues that the “essential elements of Gillette's claim do not relate to the documents requested”... and that “the discovery requests amount to nothing more than a fishing expedition.” Id. at 2, 5. Gillette counter argues that the "good cause" standard for discovery pursuant to Rule 6 (a) of the Rules Governing Sections 2254 and 2255 federal habeas cases is the wrong standard because this matter was brought pursuant to the local habeas statute 5 V. I. C. §1303. Reply at 1-3. Gillette contends that because he filed his petition under the local habeas corpus statute, the Superior Court should apply Rule 81(a)(4) Federal Rules of Civil Procedure applicable to the Superior Court through Superior Court Rule 7 “which allows for full, robust, and liberal discovery.” Reply at 4. As a result, Gillette asserts that his discovery request is proper; and even if the federal rules do not apply, his discovery request would satisfy the good cause standard. Id. at 5-8. The issue before the Court is whether Gillette's discovery requests should be granted. As mentioned supra, Gillette asserts that the court should allow “full, robust, and liberal discovery” under the Federal Rules of Civil Procedure which is applicable through Superior Court Rule 7, 25 §20 U.S. 899, 117 S. Ct. 1793 (1997). 26 394 U.S, 286, 89 S. Ct. 1082 (1969). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION Vanterpool*’ and its progenies held that federal rules of procedure supply rules of last resort for the Superior Court of the Virgin Islands.?® Accordingly, rather than mechanistically apply the Federal Rules of Civil Procedure to the habeas corpus discovery request, this court conducted a thorough review of applicable Virgin Islands statutes, Superior Court rules, and Supreme Court precedent. In conformity with Rivera-Moreno and Mosby, when interpreting the Virgin Islands’ habeas corpus statute, this court will defer to the Supreme Court of California’s interpretation of the statute governing discovery in habeas corpus proceedings. In California, courts order discovery in noncapital habeas cases on a case-by-case basis.?° “Habeas corpus is an extraordinary, limited remedy against a presumptively fair and valid final judgment. It is not a device for investigating possible claims, but a means for vindicating actual claims.” °° “There is no postconviction right to "fish" through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist.”?! “Petitioner must make concrete allegations, supported by specific facts, as grounds for habeas- corpus-based discovery.”?? “The discovery in a habeas corpus proceeding must be relevant to the issues upon which the petition states a prima facie case for relief.”>? “Discovery on habeas corpus is necessarily directed at issues raised or potentially raised on habeas corpus, which may or may not relate to any of the evidence presented or not presented in the underlying criminal trial.”*4 27 ld. 28 See Vanterpool v. Gov't of the V.1., 63 V.I. 563, 582-83 (2015); cf Cianci v. Chaput, 64 V.I. 682, 693-94 (2016) (citing Sweeney v. Ombres, 60 V.1. 438, 442 (V.L. 2014)( affirming that in the Superior Court of the Virgin Islands, the Federal Rules of Civil Procedure... should represent rules of last resort rather than first resort, and should be invoked only when a thorough review of applicable Virgin Islands statutes, Superior Court rules, and precedents from this Court reveals the . absence of any other procedure). ?° Laurie L. Levenson, Symposium Article: Searching For Injustice: The Challenge Of Postconviction Discovery, Investigation, And Litigation, 87 8. CAL. L. REV. 545, 545 (2014). See In re Scott, 61 P.3d 402, 417-18 (Cal. 2003). It is important to recognize that in California, different standards apply to discovery requests from habeas corpus petitioners sentenced to life imprisonment or capital punishment than noncapital cases . See Cal. Penal Code §§ 1054.9 and 1484, 3° See People v. Gonzalez, 51 Cal. 3d 1179, 1260 (1990). 31 Jd. at 1259-60. 32 Id. 33 Jd. at 1243. 34 See People v. Superior Court (Pearson), 48 Cal. 4th 564, 572 (2010). Gillette vs. Herbert SX-14-CV-439 MEMORANDUM OPINION Here, Gillette is requesting both hard and electronic copies of his USVI Department of Justice file, his USVI Bureau of Corrections file, and his Golden Grove Adult Correctional Facility file. The court notes that much of the evidence requested may have been available during Gillette's appeal. However, in the matter sub judice, Gillette is challenging the legality of his confinement which may require different evidence than what was available at trial or during his appeal. In light of the foregoing analysis, Gillette should have first filed his motion for discovery with the court because only the court can decide whether or not discovery is necessary. However, the Court finds that there is good reason to allow discovery and that the discovery requests are relevant to the issues. In order to have a full and fair determination of the matter, Gillette's request for production of documents will be granted. As mentioned supra, the federal rules do not apply to habeas corpus discovery requests. Procedurally, Trotter does not have any obligation to provide Rule 26 Initial Disclosures. Therefore, Gillette's motion for sanctions will be denied. CONCLUSION Based on the foregoing analysis, the Court will grant Gillette's request for production of documents and deny his motion for sanctions. All future discovery requests must be submitted to the court and must contain “concrete allegations, supported by specific facts.”?> Even absent a request or court order, the prosecution has a continuing obligation to disclose Brady material. The court will issue an Order consistent with this Memorandum Opinion. DATED this_/@ day of February, 2017. ATTEST: } Estrella George ROLD W. L. WILLOCKS Acting Clerk of the Court Administrative Judge-of the Superior Court CERTIFIED TO BEA TRUE COPY. This £lg_ dey oe Wi 20 “ESTRELLA H. GEORGE , CLERK OF THE CG URT 38 See Gonzalez, 51 Cal. 3d at 1260. ass Court Clerk a