Danny Fabricant v. United States of America

Filing 23

ORDER re: Petitioner's Application for Appointment of Investigator (CR1015, CV 5 ), Application for Leave to Conduct Discovery (CR1016, CV 6 ), and First § 2255 Discovery Motion (CR1017, CV 7 ) by Judge Ronald S.W. Lew: The Court DENIES Petitioner's three discovery-related Requests: Ex Parte Application for Appointment of Investigator Lee Cole (CR1015, CV5), Ex Parte Application for Leave to Conduct Discovery (CR1016, CV6), and First Section 2255 Discovery Motion (CR1017, CV7). The lodged discoveryrequests at CV 14 22 / CR 1026 1041 shall not be propounded. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 DANNY FABRICANT,
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Petitioner,
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v.
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16 UNITED STATES OF AMERICA,
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Defendant.
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CV 14-8124-RSWL
CR 03-01257-RSWL-1
ORDER re: Petitioner’s
Application for
Appointment of
Investigator [CR1015,
CV5], Application for
Leave to Conduct
Discovery [CR1016,
CV6], and First § 2255
Discovery Motion
[CR1017, CV7]

Currently before the Court is Petitioner Danny

21 Fabricant’s (“Petitioner”) three related discovery
22 requests [CR1015/CV5, CR1016/CV6, CR1017/CV7]
23 (“Requests”) in which Petitioner requests discovery and
24 the appointment of an investigator in connection with
25 Petitioner’s recently filed 28 U.S.C. § 2255 motion.
26 Petitioner’s Ex Parte Application for Leave to Conduct
27 Discovery [CR1016, CV6] requests leave pursuant to Rule
28 6 of the Rules Governing 28 U.S.C. § 2255 Proceedings
1

1 (“Rule 6”) to conduct the discovery specified in
2 Petitioner’s First Section 2255 Discovery Motion
3 [CR1017, CV7].

Petitioner’s related Ex Parte Request

4 for the Appointment of Investigator Lee Cole [CR1015,
5 CV5] requests government-funded investigative services
6 pursuant to 18 U.S.C. § 3006A(e).

The Government

7 opposes [CR1033, CV20] all three Requests.
8

The Court, having considered all papers submitted

9 pertaining to these Requests, NOW FINDS AND RULES AS
10 FOLLOWS: Petitioner’s Requests [CR1015/CV5, CR1016/CV6,
11 CR1017/CV7] are DENIED.
12
13

I. BACKGROUND
In September 2008, Petitioner was re-tried before a

14 jury and convicted [682] of distribution of
15 methamphetamine, conspiracy to distribute
16 methamphetamine, and possession with intent to
17 distribute methamphetamine, in violation of 21 U.S.C.
18 §§ 841, 846.

On December 17, 2009, this Court

19 sentenced Petitioner to life imprisonment [848, 849].
20 On January 30, 2013, the Ninth Circuit affirmed
21 Petitioner’s convictions and sentence, United States v.
22 Fabricant, 506 F. App’x 636, 638 (9th Cir. 2013), and
23 on October 15, 2013, the U.S. Supreme Court denied
24 certiorari, 134 S. Ct. 450 (Mem.) (2013).
25

On October 21, 2014, Petitioner filed a Motion to

26 Vacate, Set Aside, or Correct Sentence pursuant to 28
27 U.S.C. § 2255 [CR1011, CV1].

On the same day,

28 Petitioner filed the three present discovery requests,
2

1 an Ex Parte Application for Appointment of Investigator
2 Lee Cole [CR1015, CV5], an Ex Parte Application for
3 Leave to Conduct Discovery [CR1016, CV6], and a First
4 Section 2255 Discovery Motion [CR1017, CV7].

The

5 Government timely filed its Opposition [CR1033, CV20]
6 opposing all three requests on December 18, 2014.
7 Petitioner timely filed his Reply [CR1034, CV21] on
8 January 12, 2015.
9

II. DISCUSSION

10 A.

Legal Standard

11

1.

12

Rule 6(a)1 allows a district court to authorize a

Rule 6

13 party to conduct discovery after the party has filed a
14 § 2255 motion with the district court.

Rules Governing

15 Section 2255 Proceedings, rs. 1, 6(a) (2010).

In a

16 Section 2255 proceeding, the “habeas petitioner does
17 not enjoy the presumptive entitlement to discovery of a
18 traditional civil litigant.”

Larkin v. Yates, No. CV

19 09–2034–DSF (CT), 2009 WL 2049991, at *13 (C.D. Cal.
20 July 9, 2009) (citing Bracy v. Gramley, 520 U.S. 899,
21 903-05 (1997)).

Rather, discovery is available to a

22 Section 2255 movant “only in the discretion of the
23 court and for good cause shown.”

Id. (citing Rich v.

24 Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999)); Rules
25 Governing Section 2255 Proceedings, r. 6(a) (2010).
26
27
28

1

Rule 6(a) states that “[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery.” Rules
Governing Section 2255 Proceedings, rs. 1, 6(a) (2010).
3

1

Good cause exists where “specific allegations give

2 the court a reason to believe that the petitioner may,
3 if the facts are fully developed, be able to
4 demonstrate that he is entitled to relief.”

Easley v.

5 MacDonald, No. CV 12–09989 DDP (AN), 2013 WL 6834638,
6 at *1 (C.D. Cal. Dec. 23, 2013) (citing Smith v.
7 Mahoney, 611 F.3d 978 (9th Cir. 2010)).

Rule 6(a)

8 discovery is not appropriate when the movant’s
9 discovery requests are mere “fishing expeditions” to
10 investigate speculation or to “‘explore [the movant’s]
11 case in search of its existence.’”

Calderon v. U.S.

12 Dist. Crt. N. Dist. Cal., 98 F.3d 1102, 1106 (9th Cir.
13 1996); Barno v. Hernandez, No. 08cv2439-WQH, 2011 WL
14 2039702, at *1 (S.D. Cal. May 25, 2011).
15

2.

16

The Criminal Justice Act (“CJA”), codified at 18

18 U.S.C. § 3006A(e)

17 U.S.C. § 3006A, authorizes, in some circumstances,
18 government funds for investigative services for
19 indigent petitioners “seeking relief under section . .
20 . 2255 of title 28.”

18 U.S.C. § 3006A(a)(2), (e); see

21 Guide to Judiciary Policy, Vol. 7, Pt. A, Ch. 3 (“CJA
22 Guidelines”) § 310.10.30(a)-(b) (2013); Harris v.
23 United States, No. CV12–4709–VBF, 2012 WL 7845578, at
24 *1 (C.D. Cal. Aug. 20, 2012).

Section 3006A(e) allows

25 for court-ordered authorization of government funds for
26 investigative services “upon request” by “[c]ounsel for
27 a person who is financially unable to obtain
28 investigative . . . services necessary for adequate
4

1 representation” after the court makes an “inquiry in an
2 ex parte proceeding, that the services are necessary
3 and that the person is financially unable to obtain
4 them.”

18 U.S.C. § 3006A(e)(1).

When a pro se movant

5 requests government-funded investigative services under
6 § 3006A(e), the CJA Guidelines require two threshold
7 determinations that the movant is “eligible for
8 representation” under the CJA and that the movant’s
9 case is “one in which the interests of justice would
10 have required the furnishing of representation.”

CJA

11 Guidelines § 310.10.30(a)-(b); see In re Smith, 586
12 F.3d 1169, 1172 (9th Cir. 2009).
13 B.

Discussion

14

1.

Petitioner’s Request for Leave to Conduct

15

Discovery Pursuant to Rule 6(a)

16

a.

17

Petitioner’s Request

Petitioner’s Request for Leave to Conduct Discovery

18 [CR1016, CV6] and First § 2255 Discovery Motion
19 [CR1017, CV7] jointly request discovery of the
20 following material pursuant to Rule 6(a):
21

(1) copies of all Operation Dequiallo (“OpDeq”)

22

Electronic Evidence Recordings (“EE Recordings”)

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and copies of any related transcripts of those

24

Recordings, First § 2255 Discovery Mot. 1;

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(2) any reports or writings memorializing all

26

Federal and State law enforcement contacts made

27

with the family of Cynthia Garcia, id. at 6;

28

(3) a photograph, preferably 5 inches by 7 inches,
5

1

of ATF agent John Ciccone taken in 2002 or 2003,

2

id. at 8;

3

(4) unredacted copies of all OpDeq investigation

4

reports or memorandums, id. at 8-9;

5

(5) a copy of James Richie’s testimony in the 2006

6

Las Vegas Hells Angels trial, United States v.

7

Acosta, et al., No. CR-03-542-JCM-PAL, and a copy

8

of the discovery documents in that case related to

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monies paid to informant James Richie, First § 2255

10

Discovery Mot. 10;

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(6) any documents supporting ATF agent John

12

Ciccone’s testimony in Petitioner’s retrial on

13

September 23, 2008, that informant Michael Kramer

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was “authorized” to own, possess, and/or carry

15

firearms, or a letter stating that the Los Angeles

16

U.S. Attorney’s Office and former Assistant U.S.

17

Attorney Rodrigo A. Castro-Silva “had no knowledge

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of, and did NOT ‘Authorize,’ Informant Michael

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Kramer’s ownership, possession or carrying of

20

firearms . . .

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(7) the “[i]dentities of all persons present at a

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home on Avenue San Luis, in Woodland Hills, CA,

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during the 12/03/2003 execution of Federal Search

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Warrant 03-2589M,” id. at 13.

25

Petitioner seeks this discovery material because he

during 2002 or 2003,” id. at 11;

26 believes the evidence would impeach ATF informant
27 Michael Kramer (“Kramer”) and ATF Agent John Ciccone
28 (“Agent Ciccone”), both of whom testified against
6

1 Petitioner at Petitioner’s retrial.
2 Opp’n 2:10-12.

Id. at 1-14;

Petitioner requests the above discovery

3 to show that informant Kramer engaged in various bad
4 acts such as distribution and use of methamphetamine,
5 assault, theft, frequenting “stripper bars,” and
6 murder.
7

First § 2255 Discovery Mot. 3-10, 13-16.

Petitioner also requests the above discovery

8 material to impeach Agent Ciccone.

Id. at 7, 11-13.

9 Petitioner speculates that “there is a good
10 probability” Agent Ciccone “contacted the family [of
11 murder victim Cynthia Garcia] and lied to them about
12 Kramer’s involvement [in the murder], to get them to
13 agree not to file a Wrongful Death lawsuit.”

Id. at 7.

14 Petitioner also speculates that Agent Ciccone falsely
15 testified in Petitioner’s retrial that informant
16 Kramer, a felon, was “authorized” to carry firearms
17 while acting as an undercover Hells Angels ATF
18 informant.

Id. at 11-13.

Finally, Petitioner alleges

19 that the false testimony of an informant in an
20 unrelated 2006 Las Vegas Hells Angels case impeaches
21 Agent Ciccone because Agent Ciccone “sat quitely [sic]”
22 while the informant lied on the stand.
23
24

b.

Id. at 10-11.

Analysis

A Section 2255 movant is not entitled to discovery,

25 but the court may, in its discretion and for “good
26 cause,” grant a § 2255 movant leave to conduct
27 discovery pursuant to Rule 6(a).

Rules Governing

28 Section 2255 Proceedings, r. 6(a) (2010); United States
7

1 v. Kalfsbeek, No. 2:05-cr-0128, 2013 WL 129409, at *2
2 (E.D. Cal. Jan. 9, 2013).

Good cause exists where

3 “specific allegations give the court a reason to
4 believe that the petitioner may, if the facts are fully
5 developed, be able to demonstrate that he is entitled
6 to relief.”2

Easley, 2013 WL 6834638, at *1 (citing

7 Smith v. Mahoney, 611 F.3d 978, 996 (9th Cir. 2010)).
8 The “good cause” analysis requires an analysis of “the
9 essential elements of Petitioner’s underlying claim” in
10 order to “determine whether the petitioner has shown
11 ‘good cause’ for appropriate discovery to prove his
12 claim.”

Nedley v. Runnels, No. 03-5237, 2007 WL

13 841788, at *11 (N.D. Cal. Mar. 20, 2007).
14

Petitioner’s discovery requests relate to two

15 underlying claims in Petitioner’s § 2255 Motion: Brady
16 due process violations and newly discovered impeachment
17 evidence.
18
19

2255 Mot. Mem. P&A, ECF No. CR1013, CV3.
i.

Legal Standard for § 2255 Motion

“Under § 2255, the sentencing court is authorized

20 to discharge or resentence a defendant if it concludes
21 that it ‘was without jurisdiction to impose such
22 sentence, or that the sentence was in excess of the
23
24

2

“Good cause” does not exist, and leave to conduct

25 discovery under Rule 6(a) is not appropriate, when the movant’s
requested discovery is a mere “fishing expedition” to investigate

26 speculative claims or to search for the existence of possible
U.S. Dist. Crt. N. Dist. Cal., 98
27 claims. Calderon v. (“‘Federal habeas court must allowF.3d 1102,
1106 (9th Cir. 1996)
discovery
28 . . . only where a factual dispute, if resolved in the
petitioner’s favor, would entitle him to relief.’”).
8

1 maximum authorized by law, or is otherwise subject to
2 collateral attack.’”

United States v. Addonizio, 442

3 U.S. 178, 184 (1979); see 28 U.S.C. § 2255(a).

Here,

4 Petitioner’s discovery requests relate to claims of
5 Brady violations and “newly discovered evidence,” both
6 of which can only be construed as collateral attacks to
7 Petitioner’s sentence.
8

Collateral attacks on final judgments may prevail

9 only within “narrow limits.”
10 185.

Addonizio, 442 U.S. at

A valid “collateral attack” under Section 2255 is

11 limited to “constitutional error” or “a fundamental
12 defect which inherently results in a complete
13 miscarriage of justice,” rendering the “proceeding
14 itself irregular and invalid.”

Id. at 185-86; see Trap

15 v. United States, Nos. 12cv1205 BEN/10cr912 BEN, 2013
16 WL 2444123, at *3 (S.D. Cal. June 3, 2013) (“To warrant
17 relief under § 2255, a prisoner must allege a
18 constitutional, jurisdictional, or otherwise
19 ‘fundamental defect which inherently results in a
20 complete miscarriage of justice [or] an omission
21 inconsistent with the rudimentary demands of fair
22 procedure.’” (quoting United States v. Timmreck, 441
23 U.S. 780, 783-84 (1979)).
24
25

ii. Brady Claims
In Brady, “the Supreme Court held that ‘[t]he

26 suppression by the prosecution of evidence favorable to
27 an accused upon request violates due process where the
28 evidence is material either to guilt or to punishment,
9

1 irrespective of the good faith or bad faith of the
2 prosecution.’”

Runningeagle v. Ryan, 686 F.3d 758, 769

3 (9th Cir. 2012) (quoting Brady v. Maryland, 373 U.S.
4 83, 87 (1963)).

Because a Brady violation “violates

5 due process where the evidence is material,” a Brady
6 violation can be a cognizable § 2255 claim.
7

Id.

To prove a Brady violation, the “defendant must

8 prove three elements”: (1) the evidence is favorable to
9 the accused because it is exculpatory or impeaching;
10 (2) the evidence was suppressed by the State, either
11 willfully or inadvertently; and (3) prejudice resulted
12 from the State’s failure to disclose the evidence.
13 Benn v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002);
14 see Runningeagle, 686 F.3d at 769.

Evidence is

15 prejudicial, or “material,” “‘when there is a
16 reasonable probability that, had the evidence been
17 disclosed, the result of the proceeding would have been
18 different.’”3

Runningeagle, 686 F.3d at 769; Benn, 283

19 F.3d at 1052.

“A ‘reasonable probability’ is a

20 probability sufficient to undermine confidence in the
21 outcome.”

United States v. Alvarez, 86 F.3d 901, 904

22 (9th Cir. 1996); Benn, 283 F.3d at 1052.
23

Here, Petitioner’s discovery request for the OpDeq

24
3

“‘[M]ateriality’ in the constitutional sense” cannot be

25 established by “mere speculation.” Barker v. Fleming, 423 F.3d
1085, 1099 (9th Cir. 2005) (rejecting petitioner’s Brady claim
26 based on a “theory woven largely of threads [the petitioner had]
27 created himself,” and concluding that a “‘mere possibility that

an item of undisclosed information might have helped the defense,

28 or might have affected the outcome of the trial’” was not
“materiality” for Brady or constitutional purposes).
10

1 materials could be construed as a Brady violation, as
2 Petitioner asserts that the OpDeq materials contain
3 evidence that could have impeached informant Kramer,
4 who testified against Petitioner at his retrial.

See

5 First § 2255 Discovery Mot. 1-6, 8-10; see, e.g., id.
6 at 4-5 (Petitioner stating that he intends to use the
7 OpDeq recordings “to identify and locate impeachment,
8 etc. evidence, that was hidden by the Government”).
9 Petitioner claims the OpDeq evidence would show that
10 Kramer engaged in various bad acts such as frequenting
11 strip clubs, assaulting people, murdering people,
12 stealing, and snorting methamphetamine.
13

Id. at 1-6.

The OpDeq material Petitioner requests is

14 “favorable” to Petitioner because it could impeach a
15 government witness, informant Kramer.

But even

16 assuming the evidence was “suppressed” by the State,
17 which is disputed,4 the evidence is not “material.”
18

As the Government points out, “Petitioner presented

19 significant evidence to impeach Kramer’s credibility at
20 Petitioner’s retrial,” including Kramer’s participation
21 in the Cynthia Garcia murder and Kramer’s involvement
22 in other illegal activity such as assault and
23
24
25
26
27
28

4

In the Government’s Opposition, the Government claims that
it did make available to the defense for inspection all
investigative reports related to Petitioner’s retrial. Opp’n
8:17-27. The Government explains that the Court had issued an
Order of non-disclosure of investigative reports for any
unrelated investigations. Id. Petitioner, in his Reply, argues
that the “Government is not being entirely truthful” about the
disclosure, because only Petitioner’s co-counsel Kennedy, and not
Petitioner himself, was allowed to look at the reports. Reply 10.
11

1 distribution and use of methamphetamine while working
2 for ATF.

Opp’n 7:13-27 (quoting Sept. 26, 2008, Tr. at

3 114-126).

Upon review of the retrial transcripts, the

4 evidence Petitioner seeks from the OpDeq material is
5 cumulative of the evidence offered by the defense in
6 Petitioner’s retrial.

As such, there is no “reasonable

7 probability” that the impeaching, but cumulative,
8 evidence in the OpDeq material would have changed the
9 outcome of the jury’s guilty verdict.

Furthermore,

10 though Kramer was an important government witness, the
11 Court agrees that the Government “presented ample other
12 evidence of petitioner’s guilt,” including recordings
13 of Petitioner’s drug transactions, Petitioner’s own
14 statements and other witness statements describing
15 Petitioner’s drug trafficking business, and the
16 methamphetamine found during a search of Petitioner’s
17 residence.

Opp’n 7:28-8:14.

As such, the OpDeq

18 evidence does not rise to the level of materiality for
19 Brady purposes.
20

See Runningeagle, 686 F.3d at 769.

Petitioner’s request for all investigation reports

21 or any other writings related to the government’s
22 contact with the family of murder victim Cynthia Garcia
23 is, for the same reasons as those stated above, not
24 “material.”

To the extent Petitioner requests this

25 evidence to impeach informant Kramer, the evidence is
26 cumulative, as the retrial jury was already aware of
27 Kramer’s participation in the Garcia murder, as well as
28 Kramer’s potential for bias due to the substantial
12

1 leniency and benefits Kramer received from ATF and
2 other government agencies for Kramer’s work as an
3 informant.

See, e.g., United States v. Kohring, 637

4 F.3d 895, 908 (9th Cir. 2011) (stating that evidence
5 must be “more than ‘merely cumulative’ to be material
6 under Brady/Giglio.”).
7

Petitioner also seeks to use the Garcia-related

8 material to impeach testifying Agent Ciccone by showing
9 that Agent Ciccone lied to the Garcia family about
10 Kramer’s involvement with the Garcia murder to prevent
11 the family from bringing a civil wrongful death action
12 against Kramer.

First § 2255 Discovery Mot. 7.

Such

13 evidence is arguably speculative, see Barker, 423 F.3d
14 at 1099, but, regardless, is not “material.”

The

15 retrial jury knew that ATF made efforts to protect
16 informant Kramer’s identity so as not to “jeopardiz[e]
17 the whole operation” and that the government gave
18 Kramer substantial benefits, including immunity or
19 leniency for Kramer’s illegal actions.

See, e.g.,

20 Sept. 24, 2008, Tr. at 39-40, 53-60, 65-69, 72-74. But
21 even so, evidence that Agent Ciccone lied to the family
22 of murder victim Cynthia Garcia about Kramer’s
23 involvement in the murder, while having some
24 impeachment value against Agent Ciccone, is not strong
25 enough impeaching evidence to result in a “reasonable
26 probability” that, had the evidence been disclosed to
27
28
13

1 the jury, the outcome would have been different.5
2 Barker, 423 F.3d at 1096.

See

Furthermore, the Government

3 offered strong evidence of Petitioner’s guilt that did
4 not depend on Agent Ciccone’s credibility, such as the
5 methamphetamine found at Petitioner’s residence,
6 Petitioner’s own recorded statements and actions, and
7 the incriminating testimonies of other witnesses like
8 Special Agent David Hamilton and Special Agent
9 Christopher White.
10

Petitioner’s other discovery requests are arguably

11 not subject to Brady, but even if they are, the
12 requested discovery is not “material” for the same
13 reasons as those stated above: the cumulative nature of
14 the evidence, the existence of strong independent
15 evidence of Petitioner’s guilt, and the evidence’s weak
16 impeachment value.
17
18

iii. Newly Discovered Evidence Claims
Petitioner’s requested discovery material, if not

19 supporting Petitioner’s Brady violation claims, support
20 Petitioner’s § 2255 claims of newly discovered
21 impeaching evidence.

2255 Mot. Mem. P&A I 5-1 to 5-3.

22
23
24
25
26
27
28

5

The cumulative impeaching effect of this evidence against
both Agent Ciccone and informant Kramer does not rise to the
level of “materiality” due to the strong evidence of Petitioner’s
guilt that did not depend on Kramer’s or Agent Ciccone’s
testimonies, but primarily due to the cumulative nature of the
evidence and the weak impeachment value of the evidence. See
Barker, 423 F.3d at 1094 (noting that the Supreme Court requires
that the materiality of withheld evidence be analyzed
cumulatively).
14

1

A mere “evidence-based claim,” such as newly

2 discovered impeaching evidence, that does not rise to
3 the level of “an independent constitutional violation,”
4 “is not cognizable under § 2255.”

United States v.

5 Berry, 624 F.3d 1031, 1038 (9th Cir. 2010).

Rather,

6 the “proper device for such a claim is Federal Rule of
7 Criminal Procedure 33, which allows a prisoner to move
8 for a new trial based on newly discovered evidence.”6
9 Id.; see Fed. R. Crim. P. 33(b)(1).

Here, Petitioner

10 cannot prevail under either § 2255 or Rule 33.
11

None of the discovery material requested by

12 Petitioner supports “an independent constitutional
13 violation” beyond possible Brady violations, which have
14 already been discussed and rejected above.
15 F.3d at 1038.

Berry, 624

Petitioner seeks merely to impeach

16 government witnesses, and such an “evidence-based
17 claim,” without more, is not cognizable under § 2255.
18 Id.

Petitioner cannot prevail under Rule 33 because

19 Petitioner’s § 2255 Motion construed as a Rule 33
20 Motion is untimely, and the Government has not waived
21 that defense.7
22
23
24
25

6

The Ninth Circuit has directed that, as long as the
petitioner’s Rule 33 claims are within the time limit required by
Rule 33, “a motion under § 2255 that raises evidence-based claims
should be treated as a motion for a new trial.” Berry, 624 F.3d
at 1038-39.

26
7

Rule 33 requires the motion to “be filed within 3 years

27 after the verdict or finding of guilty.” Fed. R. Crim. P.
33(b)(1). Petitioner’s guilty verdict was rendered on September
28
15

1

Petitioner has thus failed to establish “good

2 cause” for his discovery requests and, as such, the
3 Court DENIES Petitioner’s Ex Parte Application for
4 Leave to Conduct Discovery [CR1016, CV6] and First
5 Section 2255 Discovery Motion [CR1017, CV7].
6

2.

Petitioner’s Request for the Appointment of

7

Investigator Pursuant to 18 U.S.C. § 3006A(e)

8

a.

9

Petitioner’s Requests

Petitioner seeks the appointment of an investigator

10 named Lee Cole pursuant to 18 U.S.C. § 3006A(e).

Req.

11 Appointment Investigator 1, ECF No. CV5, CR1015.
12 Petitioner explains that the appointment of
13 Investigator Cole is necessary to:
14 (1) locate “documentary evidence,” id. at 1-2;
15 (2) “[l]ocate, interview, obtain declarations from and
16 (later) arrange the testimony of (at least) the below
17 named . . . persons, who have relevant impeachment
18 information about the informant formerly known as
19 Michael Kramer,” by showing that Kramer spent time at a
20 strip club, assaulted people at the strip club, snorted
21 methamphetamine, sold someone “military explosive,”
22 carried firearms, murdered a women, stole items from a
23
24
25
26
27
28

26, 2008. Dckt. # CR683. Petitioner’s § 2255 Motion was filed
on October 21, 2014, and even with the prison mailbox rule’s
earlier date of October 7, 2014, Petitioner’s Motion is not
timely under Rule 33. Rule 33’s time limit can be waived if the
government fails to raise that defense, but here, the Government
preserved the defense by opposing an untimely Rule 33 motion in
its Opposition. Opp’n 9:13-21; see Berry, 624 F.3d at 1038-39.
16

1 house, stole a man’s wallet, assaulted a man with a
2 baseball bat, and stole money from ATF, id. at 2-7.
3
4

b.

Analysis

When a pro se movant is requesting government-

5 funded investigative services, the CJA Guidelines
6 require two threshold determinations that the movant is
7 both “eligible for [legal] representation” under the
8 CJA and that the movant’s case is “one in which the
9 interests of justice would have required the furnishing
10 of representation.”8
11

CJA Guidelines § 310.10.30(a)-(b).

A person, such as Petitioner, “seeking relief under

12 section . . . 2255” is “eligible for representation”
13 under the CJA.

18 U.S.C. § 3006A(a).

To determine

14 whether appointment of counsel is in the “interests of
15 justice,”9 a court evaluates “the likelihood of success
16 on the merits as well as the ability of the petitioner
17 to articulate his claims pro se in light of the
18 complexity of the legal issues involved.”

United

19
20
21
22

8

There is no constitutional right to the appointment of
counsel in a habeas proceeding. Harris v. United States, at *1
(C.D. Cal. Aug. 20, 2012) (citing Brown v. Vasquez, 952 F.3d
1164, 1168 (9th Cir. 2001)).
9

See
23 5718949, atKiehle v. Ryan, No. CV–11–00352–PHX–GMSO, 2013 WL
*3 (D. Az. Oct. 18, 2013) (“It is important to
reiterate that . . . the interests of justice are only a
24

25
26
27
28

prerequisite to the court's discretionary power to appoint
counsel. The only time a court is required to appoint counsel in
habeas petition is when it is necessary under the circumstances
in order to prevent a due process violation, or under the statute
and rules discussed above. In all other cases it is left to the
court's sound discretion whether to appoint counsel if the
interests of justice so require.”).
17

1 States v. Ives, 67 F.3d 309, at *1 (9 th Cir. 1995)
2 (unpub. op.) (quoting Weygandt v. Look, 718 F.2d 952,
3 954 (9th Cir. 1983) (per curiam)).

The Court finds

4 that appointing representation for Petitioner would not
5 be in the interests of justice, as Petitioner is more
6 than capable of articulating his claims pro se and has
7 not shown a likelihood of success on the merits,
8 especially for those claims for which Petitioner
9 requests an investigator.

Petitioner has filed, since

10 his confinement, numerous “motions with accompanying
11 memoranda of points and authorities with supporting
12 affidavits” that show his sufficient ability to
13 research and understand the law and to assert his
14 intended claims.

United States v. Ellsworth, 547 F.2d

15 1096, 1098 (9th Cir. 1976).

Because it would not be in

16 the “interests of justice” to furnish Petitioner with
17 representation,10 Petitioner’s Application [CR1015, CV5]
18 for federally-funded investigative services pursuant to
19 18 U.S.C. § 3006A(e) is DENIED.11

See 18 U.S.C.

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10

Because this threshold determination automatically
precludes Petitioner’s § 3006A(e) request, the Court need not
hold an “ex parte proceeding” to determine “that the services are
necessary and that the person is financially unable to obtain
them.” 18 U.S.C. § 3006A(e)(1).
11

See also, Martinez v. Campbell, No. CIV 06-0831 ALA HC,
2007 WL 2389821, at *1 (E.D. Cal. Aug. 20, 2007); see also
Covarrubias v. Gower, No. C–13–4611 EMC (pr), 2014 WL 342548, at
*2 (N.D. Cal. Jan. 28, 2014) (“Without permission to conduct
discovery [pursuant to Rule 6(a)], a reasonably competent counsel
would not hire an investigator to assist in such discovery.”
(referring to United States v. Rodriguez-Lara, 421 F.3d 932 (9th
18

1 3006A(a)(2)(b); CJA Guidelines § 310.10.30(b).
2
3

V. CONCLUSION
Based on the foregoing analysis, the Court DENIES

4 Petitioner’s three discovery-related Requests: Ex Parte
5 Application for Appointment of Investigator Lee Cole
6 [CR1015, CV5], Ex Parte Application for Leave to
7 Conduct Discovery [CR1016, CV6], and First Section 2255
8 Discovery Motion [CR1017, CV7]. The lodged discovery
9 requests [14][22] shall not be propounded.
10
11 IT IS SO ORDERED.
12 DATED: February 25, 2015
13

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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Cir. 2005)).
19