Mize v. Cate et al

Filing 17

ORDER signed by Magistrate Judge Craig M. Kellison on 10/17/2011 ORDERING that ptnr's 6 motion for appointment of counsel is DENIED; and ptnr's 6 motion to conduct discovery is DENIED w/out prejudice. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS WAYNE MIZE,

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No. CIV S-11-1114-JAM-CMK-P

Petitioner,

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vs.

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M. CATE, et al.,

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ORDER

Respondents.

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/

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s request for

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the appointment of counsel and to conduct discovery (Doc. 6).

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There currently exists no absolute right to appointment of counsel in habeas

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proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C.

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§ 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice

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so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does

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not find that the interests of justice would be served by the appointment of counsel at the present

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time. Petitioner’s request will therefore be denied.

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Rule 6 of the Rules Governing § 2254 provides that the court may, for good cause,

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allow discovery and may limit the extent of discovery allowed. See Rule 6(a). A party

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requesting discovery is required to provide reasons for the request, as well as to include with the

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request any proposed interrogatories, requests for admission, and specification of any requested

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documents. See Rule 6(b). Unlike civil litigants, a habeas petitioner is not presumptively

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entitled to discovery. See Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999). “Habeas is an

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important safeguard whose goal is to correct real and obvious wrongs. It was never meant to be a

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fishing expedition for habeas petitioners to ‘explore their case in search of its existence.’” Id. at

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1067 (quoting Calderon v. U.S.D.C. (Nicholaus), 98 F.3d 1102, 1106 (9th Cir. 1996)). “A

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habeas petitioner does not enjoy the presumptive entitlement to discovery of a traditional civil

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litigant.” Id. at 1068 (citing Bracy v. Gramley, 520 U.S. 899, 903-05 (1997)). “The availability

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of any discovery during a habeas proceeding is committed to the sound discretion of the district

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court.” Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993).” Good cause may be shown

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“‘where specific allegations before the court show reason to believe that the petitioner may, if the

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facts are fully developed, be able to demonstrate that he is . . . entitled to relief.’” Bracy, 520

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U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).

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While petitioner provides reasons for his request, he fails to provide the proposed

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discovery he intends to propound. In addition, his request is premature. Respondent has yet to

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respond to the petition, and the court is hesitant to address a request for discovery until after an

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answer is on file. His request will therefore be denied at this time, but without prejudice to

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renewing his request, if appropriate, after an answer to his petition is filed.

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s motion for appointment of counsel is denied; and

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2.

Petitioner’s motion to conduct discovery is denied without prejudice.

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DATED: October 17, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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