Lenart v. Ornoski
Filing
138
ORDER signed by Chief Judge Morrison C. England, Jr on 11/19/2013 ORDERING 129 Motion for Reconsideration is DENIED. (Waggoner, D)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS HOWARD LENART,
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Petitioner,
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No. 2:05-cv-01912-MCE-CKD
v.
MEMORANDUM AND ORDER
ROBERT L. AYERS, JR., Warden,
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Respondent.
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Petitioner Thomas Howard Lenart (“Petitioner”) seeks reconsideration of the
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magistrate judge’s order (“Order”), ECF No. 127, granting in part Respondent’s motion
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for discovery, ECF No. 121. For the following reasons, Petitioner’s Motion for
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Reconsideration (“Motion”), ECF No. 129, is DENIED.
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BACKGROUND
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In 2008, this Court stayed Petitioner’s federal habeas proceedings in this death
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penalty case pending resolution of the state court proceedings. On June 7, 2013, the
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magistrate judge lifted the stay for the limited purpose of granting Petitioner’s motion to
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perpetuate testimony because Petitioner had demonstrated that certain witnesses, due
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to their age, might soon become unavailable, and those witnesses’ expected testimony
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was “material to [Petitioner’s] claims of ineffective assistance of counsel and his claim
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that his death sentence violates the Eighth Amendment.” Order Lifting Stay 1-2, June 7,
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2013, ECF No. 120. After the magistrate judge granted Petitioner’s motion to perpetuate
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testimony, Respondent filed a motion for discovery contending that a number of
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materials sought are necessary to cross-examine those witnesses at their depositions.
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After full briefing and a hearing on the matter, the magistrate judge granted in part
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Respondent’s motion for discovery and directed Petitioner to file a proposed protective
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order addressing any privilege issues. Petitioner instead filed the instant Motion. This
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Court heard oral argument on that Motion on November 14, 2013.
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ANALYSIS
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Pursuant to Eastern District of California Local Rule 72-303(f), Petitioner is
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entitled to reconsideration if the magistrate judge’s decision is either “clearly erroneous
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or contrary to law.” See 28 U.S.C. § 636(b)(1)(A). Petitioner has not shown he is
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entitled to such relief here.
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Rule 6(a) of the Rules Governing Section 2254 Cases provides, “[a] judge may,
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for good cause, authorize a party to conduct discovery under the Federal Rules of Civil
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Procedure and may limit the extent of discovery.” Rules Governing § 2254 Cases, Rule
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6, 28 U.S.C.A. foll. § 2254.
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The Advisory Committee Notes to Rule 6(a) recognize that the Rule “contains very little
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specificity as to what types and methods of discovery should be available to the parties
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in a habeas petition.” Id. at Advisory Committee Notes. The Notes further explain that
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the purpose of Rule 6(a) “is to get some experience in how discovery would work in
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actual practice by letting district court judges fashion their own rules in the context of
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individual cases.” Id.
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In this case, the magistrate judge explained “that the equities weigh in favor of
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permitting full cross-examination so that, if necessary, the preserved testimony of these
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witnesses may be considered by this court.” Order at 2. After explicitly finding that
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“Respondent has shown good cause,” the magistrate judge authorized discovery under
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Rule 6(a) and noted that “[P]etitioner provides no authority precluding the court from
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permitting the discovery requested.” Id. at 1, 2. Indeed, Petitioner conceded during oral
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argument “that there’s nothing in the rules that says it’s impermissible.” Hr’g Tr. 12, Aug.
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26, 2013, ECF No. 128.
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Given the absence of authority precluding the magistrate judge from granting
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discovery, and given Rule 6(a)’s stated goal of permitting district court judges to fashion
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the applicable rules to the context of each particular case, this Court finds that the
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magistrate judge’s ruling is neither clearly erroneous nor contrary to law. Petitioner has
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therefore failed to demonstrate he is entitled to reconsideration.
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CONCLUSION
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Petitioner’s Motion for Reconsideration (ECF No. 129) is DENIED.
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IT IS SO ORDERED.
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Dated: November 19, 2013
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