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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-01839 AWI MJS HC
LARRY BAILEY-BANKS,

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ORDER DENYING, WITHOUT PREJUDICE,
Petitioner, MOTION REQUESTING DISCOVERY
(Doc. 19)

v.

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W.L. MONTGOMERY,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On April 14, 2016, Petitioner moved the Court for

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an order authorizing discovery. (ECF No. 19.) Petitioner claims that the prosecution

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failed to provide evidence that a co-defendant was given a favorable plea-agreement as

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an inducement to discourage him from testifying on Petitioner’s behalf. Petitioner wishes

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to conduct discovery to obtain evidence supporting the allegation.

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This Court, in reviewing Petitioner's claims and determining if the state court

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decision was reasonable, may only rely upon the record before the state court. See

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Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) ("We now hold that review under §

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2254(d)(1) is limited to the record that was before the state court that adjudicated the
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claim on the merits."). As such, further discovery is not warranted at this time as the

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Court may not examine evidence not before the state court in its initial review of

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Petitioner’s claims. If, upon substantive review of the petition, the Court determines that

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discovery is necessary, it will provide Petitioner the opportunity to obtain the discovery.

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It is hereby ordered that Petitioner's motion requesting discovery be DENIED
without prejudice.

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IT IS SO ORDERED.
Dated:

March 6, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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