Richardson v. Montgomery

Filing 24

ORDER by Judge William H. Orrick denying as unnecessary 19 Motion to Amend and denying 3 Motion for Discovery. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 5/4/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JERRY ALAN RICHARDSON,
Petitioner,

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v.
W. L. MONTGOMERY,
Respondent.

Case No. 16-cv-05639-WHO (PR)
ORDER DENYING MOTION FOR
DISCOVERY;
ORDER DENYING MOTION TO
AMEND PETITION
Dkt. Nos. 3, 19

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INTRODUCTION
Petitioner Jerry Alan Richardson moves in this habeas action for discovery of (1) a

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forensic report from a Toyota Corolla involved in the underlying kidnapping crime for

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which he was convicted, (2) internal data from his cell phone, and (3) police reports

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allegedly not given to his lawyer. (Mot. for Discovery (“MFD”), Dkt. No. 3 at 2.) He

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contends that these materials will show that the prosecutor committed misconduct and that

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trial counsel rendered ineffective assistance. However, the first two categories do not exist

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and he lacks specific, objective and concrete factual evidence tending to support the

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existence of and need for any of the discovery. His motion for discovery is DENIED.

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BACKGROUND

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Richardson was convicted on charges arising from the kidnapping of Anthony

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Patino. At roughly 3:30am on July 18, 2011 in San Jose, Patino parked his sister’s

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boyfriend’s Toyota Corolla. (Dkt. No. 15, Ex. H (State Appellate Opinion) at 5.) As he

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walked to his house, he was confronted by a masked gunman, who forced Patino back into

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the car and directed him to drive. (Id.) Another car, Patino’s stepfather’s Isuzu Trooper,

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which had been parked nearby, followed. (Id.) Eventually, the gunman ordered Patino to

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stop and step out of the car. (Id.) He then robbed Patino of his belongings, blindfolded

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him, drove him to a shed and locked him inside. (Id. at 6.)
As daylight broke, the gunman returned. He put Patino, still blindfolded, in the

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backseat of the Corolla and then drove. (Id.) During the drive, Patino heard the gunman

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talk to someone by telephone or to someone who was in the car. (Id. at 6-7.) After the car

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stopped, Patino heard a woman ask, “Who’s that?” (Id.) The gunman said, “Some kid. I

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United States District Court
Northern District of California

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had to take him.” (Id.) She reprimanded the gunman as “stupid” for taking Patino. (Id.)

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The gunman told her to follow him. (Id.) When the car stopped again, Patino was dropped

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off and instructed to count to one hundred before removing the blindfold. (Id.) When he

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took it off, he saw that he was in a Lowe’s parking lot, which he thought was not far from

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the shed. (Id.) The Corolla was there with the keys in it. Patino drove to his house and

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called the police, who soon located the Isuzu. (Id.)

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The police investigation led to Richardson’s friend John Reed, in whose apartment

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the police found items taken from the Isuzu.1 (Id. at 3.) Tools for stealing cars, including

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keys shaped to fit a Toyota’s locks, were also found there. (Opp. at 2.) Reed’s cell phone

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records show that there were four calls to or from Richardson’s phone to Reed’s on July

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19th, the day after the kidnapping. (Id.) There were also 21 calls or texts between the two

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phones on July 20th. (Id.) One July 20th text message from Richardson was sent at

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10:30am, that is, after the police found the Isuzu. (Id.) It read, “Cops got trooper. Where

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you at? j. phone.” (Id.)

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Reed admitted to police that he and Richardson committed the charged crimes. (Pet.,
Dkt. No. 8, Supporting Document B.) This statement was not admitted at trial, according
to respondent. (Opp. at 2-3.)
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A search of the Isuzu yielded a DNA sample to which Richardson was a “possible

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contributor” and a fingerprint that matched one of Richardson’s that was on file with the

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police. (Id.)

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At trial, the prosecutor contended Reed was the lookout while petitioner broke into
and drove the Isuzu. (Id. at 3.)
DISCUSSION

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Unlike an ordinary civil litigant, a habeas petitioner must obtain court permission

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before he may conduct any discovery. Discovery may be taken only to the extent that the

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court, in the exercise of its discretion and for good cause shown, allows it. See Rule 6(a)
of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.

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Northern District of California

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foll. § 2254.

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Good cause for discovery under Rule 6(a) is shown “where specific allegations

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

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developed, be able to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520

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U.S. 899, 908-09 (1997) (citation omitted). The Supreme Court approved of Bracy’s

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request because his claims “were framed in specific terms and were supported by

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objective, concrete factual evidence tending to support his theory.” Murphy v. Johnson,

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205 F.3d 809, 813-814 (5th Cir. 2000). “Specific,” “objective,” and “concrete” are the

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watchwords here. “[C]ourts should not allow prisoners to use federal discovery for fishing

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expeditions to investigate mere speculation.” Calderon v. U.S. Dist. Court for the

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Northern Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996).

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Richardson seeks a forensic report from the Toyota Corolla, internal data from his

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cell phone and some police reports. (MFD at 2.) He contends that such materials will

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show that the prosecutor committed misconduct and that trial counsel rendered ineffective

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assistance. (Id.) To determine whether Richardson is entitled to discovery, the Court must

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consider the nature of the habeas claim for which discovery is sought, the sort of discovery

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requested, the purported need for the discovery, and the value the discovery might have in

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the federal habeas proceedings.
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The prosecution must disclose material evidence “favorable to an accused.” Brady

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v. Maryland, 373 U.S. 83, 87 (1963). In order to establish a Brady violation, petitioner

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must show that: (1) the evidence at issue was favorable to the accused, either because it is

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exculpatory or impeaching; (2) the evidence had been suppressed by the prosecution,

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either willfully or inadvertently; and (3) prejudice ensued. Banks v. Dretke, 540 U.S. 668,

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691 (2004).

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In order to prevail on a claim of ineffectiveness of counsel, the petitioner must

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establish that (1) counsel’s performance was deficient, i.e., that it fell below an “objective

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standard of reasonableness” under prevailing professional norms, Strickland v.
Washington, 466 U.S. 668, 687-668 (1984), and (2) he was prejudiced by counsel’s

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Northern District of California

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deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

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Forensic Report from the Toyota Corolla

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There are several reasons not to grant this discovery request. First, no such

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report exists. (Opp. at 7.) Second, such a report cannot be generated. (Id. at 8.) The

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crime occurred roughly six years ago, and there “is no reason to believe physical evidence

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from the Corolla was preserved.” (Id.) Third, Richardson offers only speculation that

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such a report would entitle him to relief. These facts doom Richardson’s claims that the

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prosecutor withheld exculpatory evidence or that counsel rendered ineffective assistance.

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We do not (and cannot) know what such a report would have said or not said, let alone

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whether such evidence was exculpatory. Nor can we know whether the failure to procure

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such evidence constitutes a deficient performance by counsel. We also cannot know there

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is a reasonable probability that but for counsel’s allegedly deficient performance the result

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of the proceeding would have been different. Fourth, even if the Toyota Corolla showed

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no evidence of Richardson’s involvement, the Isuzu Trooper contained evidence of his

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participation--his fingerprint and the DNA sample to which he was a “possible

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contributor.”

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Northern District of California

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The Court notes that the state superior court thought the forensic report from the
Corolla was irrelevant:
[P]etitioner has failed to raise a prima facie basis for relief. Petitioner’s
prints and DNA were found on the stolen car, an Isuzu Rodeo. There is no
showing that examining a Toyota Corolla was relevant to ruling out
Petitioner as a suspect or that any other investigation would have resulted in
a different result.
(Pet., Dkt. No. 8 (State Superior Court’s Habeas Denial) at 10.)
Richardson’s request for discovery of the forensic report is DENIED.
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Internal Data from Cell Phone

At trial, the prosecutor alleged that Richardson obtained a new phone after the
crimes were committed. Richardson seeks discovery of the internal data from his Metro
PCS cell phone. Such records, he contends, will contradict the prosecutor’s allegations.
There are at least two good reasons not to grant this request. First, no such
report exists, a point petitioner concedes. (MFD at 2 (“Petitioner would request this court
to have Metro PCS retrieve the internal date from the cell phone”).) Because the report
does not exist, Richardson cannot show the prosecutor withheld it. Defense counsel
cannot have rendered ineffective assistance when he or she failed to obtain non-existent
records. Second, the materials will not entitle him to relief. His Metro PCS cell phone
records show that he activated his cell phone account on July 19, 2011, one day after
Patino was kidnapped. That is consistent with the prosecutor’s assertions at trial. Metro
PCS had no other pertinent records.
Richardson’s request for discovery of cell phone data is DENIED.
3. Police Report
Richardson asks for “full” discovery of “the complete police report” regarding the
arrest of Reed. (MFD at 3.) He contends that there were four other persons with Reed at
the time of his arrest. (Id.) He believes that police must have taken statements from these
persons, statements that may be important. (Id.) “It is highly probable that these
individuals made direct statements that refute the prosecution’s theory, and it is highly
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probable that these four individual[s] had relevant information in their statements as to the

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actual events of July 18, 2011, that remove petitioner as a suspect.” (Id.)

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Besides his speculation, Richardson offers no factual basis that “it is highly

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probable” reports other than those provided to his counsel exist. This falls far short of the

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requirement that he provide “objective, concrete factual evidence tending to support his

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theory.” Murphy, 205 F.3d at 813-814. Because the request is based on speculation,

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Richardson has not shown that the prosecution withheld evidence in violation of Brady or

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that defense counsel failed to conduct a reasonable investigation or procure helpful

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evidence.

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Richardson’s request for “full” discovery of the police report is DENIED.

United States District Court
Northern District of California

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CONCLUSION

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Richardson’s motion for discovery is DENIED.

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Richardson has filed a motion to amend his petition to include further evidence to

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support a claim. This motion (Dkt. No. 19) is DENIED as unnecessary. The Court will

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simply deem his filing as an exhibit attached to his petition. The contents of the exhibit

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will be considered when the Court examines the merits of the petition.

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The Clerk shall terminate Dkt. Nos. 3 and 19.

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IT IS SO ORDERED.

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Dated: May 4, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

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