Brashear v. Clark et al

Filing 43

ORDER DENYING Petitioner's 35 Motion for Discovery; ORDER DENYING Petitioner's 40 Motion for Extension of Time signed by Magistrate Judge Gary S. Austin on 11/5/2009. (Bradley, A)

1 2 3 4 5 6 7 8 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS K. BRASHEAR, 12 13 14 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The parties have consented to Magistrate Judge jurisdiction pursuant 19 to 28 U.S.C. § 636(c). 20 I. Motion for Discovery 21 On September 28, 2009, Petitioner filed a motion requesting leave of court to conduct 22 discovery. In particular, Petitioner seeks a court order directing "Att[orney] Edward L. Stoliker to 23 relinquish `Crucial-Evidence'" regarding his psychiatric medication. 24 "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to 25 discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 903-05 (1997). Rule 6(a) 26 of the Rules Governing Section 2254 Cases provides that "[a] judge may, for good cause, authorize a 27 party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of 28
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UNITED STATES DISTRICT COURT

) ) Petitioner, ) ) v. ) ) KEN CLARK, Warden, et al., ) ) Respondents. ) ____________________________________)

1:09-CV-00344 GSA HC ORDER DENYING PETITIONER'S MOTION FOR DISCOVERY [Doc. #35] ORDER DENYING PETITIONER'S MOTION FOR EXTENSION OF TIME [Doc. #40]

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discovery." See also Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir.1999) ("[D]iscovery is available only in the discretion of the court and for good cause shown"). Further, Rule 6(b) states that the party requesting discovery "must provide reasons for the request" and inter alia, "must specify any requested documents." Petitioner's request will be denied. As Respondent correctly argues, the discovery request is directed toward evidence that relates to a ground which has been dismissed by the Court. In Ground Four of his amended petition, Petitioner sought to have his medication needs noted. That ground was dismissed for failure to exhaust and for failure to state a cognizable claim. Since that claim has been dismissed, there is no perceived need for the evidence Petitioner seeks to discover, as it does not pertain to any other claim. Petitioner fails to demonstrate good cause. Therefore, his request for discovery is DENIED. II. Motion for Extension of Time On October 21, 2009, Petitioner filed a motion for extension of time. However, he failed to state why he needed an extension of time, and there were no pending deadlines at the time. Therefore, his motion for an extension is DENIED. ORDER Accordingly, IT IS HEREBY ORDERED: 1) Petitioner's motion for discovery is DENIED; and 2) Petitioner's motion for extension of time is DENIED.

IT IS SO ORDERED. Dated: 6i0kij

November 5, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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