Larry Bailey-Banks v. W.L. Montgomery

Filing 26

ORDER DENYING, Without Prejudice, 19 Motion Requesting Discovery, signed by Magistrate Judge Michael J. Seng on 3/6/17. (Marrujo, C)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 1:15-cv-01839 AWI MJS HC LARRY BAILEY-BANKS, 13 14 ORDER DENYING, WITHOUT PREJUDICE, Petitioner, MOTION REQUESTING DISCOVERY (Doc. 19) v. 15 16 17 W.L. MONTGOMERY, Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 20 corpus pursuant to 28 U.S.C. § 2254. On April 14, 2016, Petitioner moved the Court for 21 an order authorizing discovery. (ECF No. 19.) Petitioner claims that the prosecution 22 failed to provide evidence that a co-defendant was given a favorable plea-agreement as 23 an inducement to discourage him from testifying on Petitioner’s behalf. Petitioner wishes 24 to conduct discovery to obtain evidence supporting the allegation. 25 This Court, in reviewing Petitioner's claims and determining if the state court 26 decision was reasonable, may only rely upon the record before the state court. See 27 Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) ("We now hold that review under § 28 2254(d)(1) is limited to the record that was before the state court that adjudicated the 1 1 claim on the merits."). As such, further discovery is not warranted at this time as the 2 Court may not examine evidence not before the state court in its initial review of 3 Petitioner’s claims. If, upon substantive review of the petition, the Court determines that 4 discovery is necessary, it will provide Petitioner the opportunity to obtain the discovery. 5 6 It is hereby ordered that Petitioner's motion requesting discovery be DENIED without prejudice. 7 8 9 10 IT IS SO ORDERED. Dated: March 6, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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