Leonard v. Hartley

Filing 53

ORDER signed by Magistrate Judge Craig M. Kellison on 2/24/2014 DENYING petitioner's 34 motion for leave to conduct discovery; GRANTING petitioner's 52 motion for an extension of time; and petitioner may file a traverse within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID G. LEONARD, 12 13 14 15 Petitioner, vs. ORDER JAMES HARTLEY, Respondent. 16 17 No. 2:12-CV-2161-MCE-CMK-P / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are: (1) petitioner’s 19 motion (Doc. 34) for an order permitting discovery; and (2) petitioner’s motion (Doc. 52) for an 20 extension of time to file a traverse. 21 Turning to petitioner’s motion for discovery, petitioner seeks leave of court to 22 conduct discovery on all of his claims. By way of example, plaintiff would like to discovery 23 “[r]ecords relating to, or reflecting upon evidence seized, or introduced at trial, reliability of 24 evidence, or pertaining to evidentiary matters or testimony.” It is clear from his motion that 25 petitioner is attempting to do exactly what the Supreme Court declared in Cullen v. Pinholster, 26 131 S.Ct. 1388 (2011), he cannot. Specifically, petitioner is attempting to use this federal habeas 1 1 action to fish for evidence to support his claims. Notably, petitioner has made no showing 2 regarding his efforts, if any, to investigate the factual bases of his claims when they were pending 3 before the state courts. See 28 U.S.C. § 2254(e)(2)(A)(ii). The court concludes that petitioner 4 has failed to demonstrate good cause for an order allowing discovery. See Rule 6(a) of the Rules 5 Governing Section 2254 Cases. 6 7 Petitioner seeks an extension of time (Doc. 52) to file a traverse. Good cause appearing therefor, the request will be granted. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Petitioner’s motion for leave to conduct discovery (Doc. 34) is denied; 10 2. Petitioner’s motion for an extension of time (Doc. 52) to file a traverse is 3. Petitioner may file a traverse within 30 days of the date of this order. 11 12 granted; and 13 14 15 16 DATED: February 24, 2014 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 2

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