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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Milo McCormick Stanley, 

Petitioner, 

vs.

Charles L. Ryan, et al., 

Respondents. 

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No. CV-98-0430-PHX-GMS

DEATH PENALTY CASE

ORDER

Pending before the Court is Respondents’ motion for reconsideration and to strike.

(Doc. 139.) Respondents request that the Court reconsider its order allowing Petitioner to

file certain depositions, deposition exhibits, an interview transcript, and a video deposition

after judgment was entered in this case. (Id.) Respondents also move to strike from the

record the written transcript and video deposition of Dr. Paul Bindelglas, which was filed

with the Court prior to judgment. (Id.) Pursuant to the Court’s order, Petitioner has filed a

response. (Docs. 141, 143-44.)

The Ninth Circuit Court of Appeals remanded this case for an evidentiary hearing on

Petitioner’s claim of ineffective assistance of counsel arising from sentencing counsel’s

failure to provide mental health experts with notes from a post-arrest interview of Petitioner

by jail psychiatrist, Dr. Karleen Hammitt. (Doc. 89.) The Court scheduled an evidentiary

hearing for September 7-8, 2011, and the parties undertook discovery and other pre-hearing

preparation. In anticipation of the hearing, Petitioner filed the transcript of the deposition of

Case 2:98-cv-00430-GMS Document 145 Filed 10/17/11 Page 1 of 3
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his mental health expert, Dr. Paul Bindelglas, who resides in Israel and would have been

unable to attend the scheduled hearing. (Doc. 118.) The Court also permitted Petitioner to

file the video recording of the Bindelglas deposition. (Doc. 119, 131.) 

Prior to the commencement of the hearing, the United States Supreme Court decided

Cullen v. Pinholster, 131 S. Ct. 1388 (2011). In Pinholster, the Court held that in

determining the reasonableness of a state court’s ruling under § 2254(d)(1), federal courts

are “limited to the record that was before the state court that adjudicated the claim on the

merits.” Id. at 1398. Based upon the holding of Pinholster, the Court granted Respondents’

motion to vacate the evidentiary hearing and entered judgment. (Docs. 116, 134, 135.)

Petitioner then moved, and the Court granted before Respondents had an opportunity to

respond, the filing of additional discovery materials Petitioner had obtained in anticipation

of the evidentiary hearing. (Docs. 136-38, 140.) Respondents then filed the instant motion.

(Doc. 139.)

With regard to Respondents’ motion for reconsideration, Fed. R. Civ. P. 5(d)(1)

controls the issue presented and requires that the Court reconsider its ruling granting

Petitioner permission to file discovery materials in this case. See Rule 12, 28 U.S.C. § foll.

2254 (governing applicability of the Federal Rules of Civil Procedure to habeas

proceedings). Rule 5(d)(1) specifically states that discovery requests and responses “not be

filed until they are used in the proceeding or the court orders filing.” Id. Although this Court

and the parties anticipated that discovery materials would be admitted at the evidentiary

hearing, following the Court’s vacation of the hearing, Rule 5(d)(1) governs the relevant

district court record. The discovery documents filed after the Court entered judgment were

clearly not used in the proceeding, were filed in error, and will be stricken from the record.

With regard to Respondents’ motion to strike the Bindelglas materials, Petitioner

argues that Respondents’ motion is untimely. While technically true, see LRCiv 7.2(g), at

the time the Court permitted Petitioner to file the Bindelglas materials the evidentiary hearing

had not yet been vacated and there would have been no reasoned basis to object to the filing

of the materials in the place of the unavailable Dr. Bindelglas testifying at the hearing.

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Moreover, the Bindelglas materials were not considered by the court in its decision to vacate

the evidentiary hearing and enter judgment against Petitioner. Rather, the Court determined

that an evidentiary hearing was unnecessary because under Pinholster the Court’s review of

Petitioner’s ineffectiveness claim was limited to the state court record. And after considering

that record, the Court concluded that the state court’s resolution of the claim was not

objectively unreasonable under 28 U.S.C. § 2254(d). If on appeal the Ninth Circuit

concludes otherwise, Petitioner will again have an opportunity to present his new evidence

at an evidentiary hearing. However, because the Bindelglas materials were not used in this

proceeding and are discovery documents, the Court will order that they be stricken from the

record.

Accordingly,

IT IS HEREBY ORDERED granting Respondents’ motion for reconsideration.

(Doc. 139.) The Clerk of Court shall strike from the district court record all of the exhibits

filed under Document 136, Exhibit A thru J, and Exhibit K, filed under Document 140. 

IT IS FURTHER ORDERED that the Clerk of Court strike from the district court

record all of the exhibits filed under Document 118, Exhibits A-G, Exhibit I filed under

Document 123, and Exhibit H, filed under Document 133.

DATED this 17th day of October, 2011.

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