Warren v. Uribe

Filing 59

ORDER denying 58 Motion for discovery signed by Magistrate Judge Edmund F. Brennan on 08/05/13. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNY LYNN WARREN,

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Petitioner,

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v.

No. 2:10-cv-2120-MCE-EFB P

ORDER

DOMINGO URIBE, JR.,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On May 30, 2013, this court issued an order and findings

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and recommendations which, inter alia, denied petitioner’s September 29, 2012 motions for

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discovery and for interrogatories, granted petitioner’s February 21, 2013 motion for clarification

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and November 29, 2012 motion to expand the record, and recommended that petitioner’s habeas

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petition be denied. Petitioner filed objections to the findings and recommendations on June 21,

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2013. On July 17, 2013, petitioner filed a document styled “motion for discovery,” which is now

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before the court.

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In his July 17, 2013 “motion for discovery,” petitioner repeats his request for two items of

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discovery that he requested in his September 29, 2012 motion for discovery. He first requests

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photographs of the back of his legs taken at the Enloe Hospital while he was being treated for his

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injuries, and photographs taken at the time of trial by an investigator for the District Attorney.
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ECF No. 58 at 2. Petitioner asserts that these photographs will show that he was shot from

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behind by police officers, which would in turn support his defense that he shot the officers in self-

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defense and that the officers committed perjury at his trial when they described the relevant series

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of events.

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Petitioner also requests “all radio traffic the police agencies used in regards to the 9-1-1-

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call up until Petitioner’s arrest.” Id. at 3. Petitioner explains, as he did in his previous discovery

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motion, that this information will demonstrate that the officers lacked exigent circumstances to

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enter his home and that Officers Durkin and Nowicki committed perjury during their trial

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testimony. Id. Petitioner argues, generally, that the requested discovery will demonstrate that he

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was the victim of assault by police officers who unlawfully entered his residence and that the

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police, the prosecutor, and petitioner’s trial counsel all engaged in a cover up of the police

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officers’ actions. Id. at 5.

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Petitioner’s “motion for discovery” is, in essence, a motion for reconsideration of this

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court’s May 30, 2013 order denying petitioner’s previous discovery motion. Local Rule 303(b),

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states “rulings by Magistrate Judges . . . shall be final if no reconsideration thereof is sought from

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the Court within fourteen days . . . from the date of service of the ruling on the parties.” Id.

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Plaintiff’s request for reconsideration of the May 30, 2013 order was filed more than fourteen

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days from the date of service of that order and is therefore untimely.

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Even if petitioner’s request is construed as another discovery motion, it lacks merit and

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must be denied. A habeas petitioner is not entitled to discovery as a matter of course, but only

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upon a fact-specific showing of good cause and in the court’s exercise of discretion. Rule 6(a),

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Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394

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U.S. 286 (1969); Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (discovery is available

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“only in the discretion of the court and for good cause”); Jones v. Wood, 114 F.3d 1002, 1009

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(9th Cir. 1997). The burden of demonstrating the materiality of the information requested is on

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the moving party. Stanford v. Parker, 266 F.3d 442, 461 (6th Cir. 2001) (citing Murphy v.

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Johnson, 205 F.3d 809, 813–15 (5th Cir. 2000)). “Bald assertions and conclusory allegations do

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not provide sufficient ground to warrant requiring the state to respond to discovery or require an
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evidentiary hearing.” Parker, 266 F.3d at 460. Good cause exists “where specific allegations

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before the court show reason to believe that the petitioner may, if the facts are fully developed, be

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able to demonstrate that he is entitled to relief. Bracy, 520 U.S. at 908–09.

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For the reasons set forth in this court’s May 30, 2013 order, petitioner has failed to

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demonstrate good cause for the discovery that he seeks. Petitioner’s July 17, 2013 motion adds

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no significant arguments to those set forth in petitioner’s previous discovery motion requesting

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the same information, nor does it include significant new or different facts or circumstances

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which were not included in the prior motion. Petitioner has also failed to demonstrate that the

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requested discovery would entitle him to federal habeas relief on any of the claims contained in

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his habeas petition.
Accordingly, IT IS ORDERED that petitioner’s May 30, 2013 “motion for discovery”

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(ECF No. 58) is denied.

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DATED: August 5, 2013.

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