Kelley v. Ndoh

Filing 21

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/8/16 DENYING 19 Motion for Discovery. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ALAN KELLEY,

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No. 2:16-cv-1088 MCE GGH

Petitioner,
v.

ORDER

JOE A. LIZARRAGA, Warden,
Respondent.

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Petitioner has filed a Motion to Invoke Discovery under Rule 6(a) of the Rules governing

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habeas cases in order to develop facts for presentation in an evidentiary hearing. This Rule

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requires Petitioner to make a showing of “good cause” for the discovery he seeks. After the

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Supreme Court’s decision in Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388 (2011) that

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showing of good cause must include a showing that the state court’s decision was “AEDPA

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unreasonable.” See Reed v. Kernan, 2007 W.L. 833306 *2 (E.D.Cal. Mar. 2007).

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In order to make this showing the Petition itself must be addressed first as the initial

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review where the state courts have made an “adjudication on the merits” and the factual

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examination is, at this point, limited to the state court record. Coddington v. Cullen, 2011 WL

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21118855 (E.D. Cal May 2011), citing Cullen, 131 S.Ct. at 1398; Pha v. Swarthout, 2015 WL

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1787569 (E.D.Cal. April 2015) citing Runningeagle v. Ryan, 686 F.3d 758, 773-774 (9th Cir.

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2012) (Pinholster governs discovery, expansion of the record and evidentiary hearings). If the
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result of the habeas review is a finding that the state court findings are AEDPA unreasonable,

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either as a matter of law or deficient fact finding process, this would afford the Petitioner an

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opportunity to develop additional facts through discovery. Coddington, 2011 WL 21118855 at

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*5. Until this court has had an opportunity to conduct a thorough review of the potential merits of

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petitioner’s claims, however, the court cannot determine whether there is a basis for granting

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discovery.

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Accordingly, IT IS ORDERED that Petitioner’s October 31, 2016 Motion for Discovery is

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denied without prejudice.

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Dated: December 8, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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