Bailey v. Clark

Filing 34

ORDER signed by Magistrate Judge Kendall J. Newman on 4/20/10 ORDERING that 32 and 24 Motions are DENIED without prejudice; Petitioner is granted 21 days from the date of service of this order to file an opposition to the motion to dismiss; Respondent may file a reply to petitioners opposition within 14 days of petitioner filing an opposition. Respondent is not obligated to file a reply.(Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. Introduction Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's December 28, 2009 and February 18, 2010 motions to compel discovery. Dkt. Nos. 24, 32. II. Background This action proceeds on the original petition filed on June 26, 2009. On January 28, 2000, petitioner was sentenced to two indeterminate state prison terms of twenty-five years to life. Two prior strike convictions were used to enhance petitioner's January 2000 sentence, including a January 1986 burglary conviction, A703991. In the instant petition, petitioner does not challenge his 2000 conviction. Instead, he contends that the 1986 conviction, where he pled guilty, was illegally obtained and was therefore improperly used to enhance the 2000 sentence. 1 vs. KEN CLARK, Respondent. / ORDER JAMES BAILEY, Petitioner, No. 2:09-cv-1856 GEB KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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On September 28, 2009, respondent filed a motion to dismiss the petition for being filed after the expiration of the statute of limitations. Dkt. No. 15. Rather than filing an opposition to the motion to dismiss, petitioner filed the instant motions to compel, arguing that he needs certain discovery to adequately respond to the motion to dismiss. Petitioner requests the plea, arraignment and sentencing transcripts from the 1986 case where he pled guilty, A703991.1 Respondent first indicated that the plea transcript was part of the lodged documents connected to the motion to dismiss and then realized that the document had been misidentified and was a different transcript on a different case that simply discussed the 1986 conviction. Respondent's Opposition to Motion to Compel. However, after reviewing the lodged documents, it appears to the court that Lodged Document 9 may be the plea transcript for case A703991. The cover page of the transcript states No. A703991 and the body of the transcript states that petitioner is pleading guilty to Information A703991. Accordingly, the court will annex Lodged Document 9 to this order, for petitioner to review. II. Analysis Discovery is not permitted as of right in habeas corpus proceedings. Bracy v. Gramley, 520 U.S. 899, 904 (1997); see Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Rather, 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." Rule 6(a), Rules Governing § 2254 Cases. Whether a petitioner has established "good cause" for discovery requires the court to determine the essential elements of the petitioner's substantive claim and evaluate whether "specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Petitioner argues that he was not competent to enter the plea in 1986 and his counsel at that time was ineffective. 2
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To the extent that petitioner requests additional discovery, and if Lodged Document 9 is not what petitioner seeks, the request for discovery is denied. While the discovery petitioner requests may be related to petitioner's underlying claims, petitioner has failed to set forth any facts or arguments concerning how the discovery would aid in responding to the motion to dismiss regarding the statute of limitations. Petitioner did not file his federal habeas petition until eight years after the statute of limitations expired. No state habeas petitions were filed until six years after the statute of limitations expired. Nor has petitioner set forth any arguments why he has waited near twenty-four years to request the transcripts from the 1986 case. The court also notes that it appears petitioner reviewed the plea transcripts in question prior to sentencing in the January 2000 case. Attached to petitioner's motion to compel is a portion of a transcript from January 28, 2000, which indicated that petitioner obtained transcripts from a prior case and after reviewing them, petitioner stated that he had exercised his rights in the correct way in the prior case. December 28, 2009 Motion to Compel, Exh. B. While it is not entirely clear if this reference concerns the 1986 plea, it appears from petitioner's pleadings that he had reviewed the relevant plea transcripts at some point in 2000. Regardless, after reviewing petitioner's allegations and his proposed discovery, the court finds that good cause does not exist to compel discovery at this time. Petitioner shall reply to the motion to dismiss, and if the case is not dismissed the court will consider at a future date petitioner's request for additional discovery. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's December 28, 2009 (Dkt. No. 24) and February 18, 2010 (Dkt. No. 32) motions be denied without prejudice. 2. Petitioner is granted 21 days from the date of service of this order to file an opposition to the motion to dismiss. Failure to file an opposition may result in a recommendation that this action be dismissed. 3

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bail1856.mtc

3. Respondent may file a reply to petitioner's opposition within 14 days of petitioner filing an opposition. Respondent is not obligated to file a reply. DATED: April 20, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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