Walker v. Martel

Filing 176

ORDER by Judge ARMSTRONG granting in part and denying in part 173 Motion for Leave to File (lrc, COURT STAFF) (Filed on 9/30/2008)

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1 2 3 4 5 6 7 8 9 10 MARVIN PETE WALKER, Petitioner, v. ROBERT L. AYERS, JR., Warden of California State Prison at San Quentin, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION NO. C 94-1997 SBA DISCOVERY ORDER DEATH PENALTY CASE United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Introduction Petitioner was convicted and sentenced to death for murder, assault, robbery and other crimes in August 1980. The California Supreme Court affirmed petitioner's conviction and death sentence on December 27, 1988. People v. Walker, 47 Cal. 3d 605 (1988). Petitioner's state petition for writ of habeas corpus was denied in September 1992; his petition for writ of certiorari was denied in March 1993. Walker v. California, 507 U.S. 979 (1993). Petitioner filed his first federal Petition for Writ of Habeas Corpus on May 20, 1997. This court found the petition to be unexhausted in part in April 1998, and petitioner filed a second state petition for writ of habeas corpus on June 5, 1998. The California Supreme Court denied the petition on December 22, 2004, both on the merits and on various procedural grounds. Petitioner filed his Second Amended Petition for Writ of Habeas Corpus in this court on January 12, 2005. Per an order dated October 15, 2005, this court granted respondent's motion to 1 dismiss Claims 9, 16, 19B(e), 19B(f), 19B(aa), 19B(cc) and 21 as procedurally defaulted. Per an 2 order dated September 28, 2007, this court granted summary judgment in favor of respondent as to 3 Claims 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19A, 19B(a), 19B(b), 19B(c), 19B(d), 19B(e), 4 19B(g), 19B(h), 19B(bb), 19B(dd) and 19B(ee). A decision as to Claims 2 and 22 was deferred. 5 Petitioner now brings a motion for leave to conduct discovery. Respondent opposes 6 petitioner's motion. Pursuant to Civil Local Rules 7-1(b) and 7-6, the court finds that the motion is 7 appropriate for submission on the papers without oral argument. For the following reasons, 8 petitioner's motion is GRANTED in part, DENIED in part and DENIED WITHOUT PREJUDICE 9 in part. 10 Factual Background The following recitation of the factual background of this case is based, in relevant part, on United States District Court 11 For the Northern District of California 12 the Supreme Court of California's opinion disposing of petitioner's direct appeal, People v. Walker, 13 47 Cal. 3d 605 (1988). The state court's factual findings are presumed to be correct pursuant to 28 14 U.S.C. 2254. 15 In 1980, a jury in the Superior Court of Santa Clara County sentenced petitioner to death 16 following a conviction of first degree murder and other crimes stemming from two separate 17 incidents joined for purposes of trial. Evidence at trial established that, in the first incident, which 18 occurred on August 7, 1979, petitioner and an accomplice robbed a liquor store called Dan's Bottle 19 Shop and shot three people. One of the shooting victims, 15 year old Joseph Vasquez, died from the 20 gunshot wounds. In connection with this incident, petitioner was convicted of first degree murder, 21 two counts of assault with intent to commit murder, and robbery. The jury also found that petitioner 22 personally used a firearm in the commission of each crime, and found true the special circumstance 23 that defendant committed the murder while engaged in the commission or attempted commission of 24 a robbery. 25 Evidence at trial also established that, in the second incident, which occurred on September 26 5, 1979, petitioner entered a medical building, where he then proceeded to rob, sexually molest, beat 27 and shoot a young woman twice in the head. The woman, Rose Olveda, survived and identified 28 petitioner as her assailant. In connection with this incident, petitioner was convicted of assault with 2 1 intent to commit murder, robbery, and personal use of a firearm in the commission of each offense. 2 He was also convicted of theft of Olveda's vehicle. 3 Petitioner's defense at the guilt phase was primarily one of mistaken identity. Petitioner 4 testified on his own behalf. Petitioner's testimony on the witness stand was impeached by earlier 5 statements he had made. 6 At the penalty phase, the prosecution and defense stipulated that the evidence from the guilt 7 phase could be considered by the jury in the penalty phase. In addition, the prosecution presented 8 testimony from two police officers that petitioner had made threats against a police officer and a 9 deputy district attorney. The defense presented witnesses from petitioner's family, including his 10 sisters, who testified that petitioner had helped them financially and emotionally and that they 11 wanted him to live. Petitioner's mother testified that petitioner had grown up in a poor family with For the Northern District of California United States District Court 12 seven brothers and sisters. Again, petitioner testified, claiming that he was innocent of the crimes 13 and testifying that he did not make threats to the officer and deputy district attorney. 14 15 Legal Standard A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery 16 as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, Rule 17 6(a) of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. 2254, provides that a "party 18 shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil 19 Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause 20 shown grants leave to do so, but not otherwise." Good cause for discovery under Rule 6(a) is shown 21 "'where specific allegations before the court show reason to believe that the petitioner may, if the 22 facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . .'" Id. at 908-909 23 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). For example, in Bracy, the Supreme Court 24 found the petitioner established good cause for discovery where he provided specific allegations 25 lending support to his claim that the trial judge was actually biased in his case. See id. at 909; see 26 also McDaniel v. United States District Court ("Jones"), 127 F.3d 886, 888 (9th Cir. 1997) (good 27 cause for discovery found where petitioner's claims did not appear purely speculative or without any 28 basis in record, each claim included factual allegations and statement of exhaustion, and materials 3 1 sought through discovery were not available from petitioner's appellate counsel, who had destroyed 2 entire file); Jones v. Wood, 114 F.3d 1002, 109-10 (9th Cir. 1997) (good cause found where 3 petitioner identified specific material he needed to argue effectively that trial lawyer had rendered 4 ineffective assistance, particularly where there was never any hearing on the ineffective assistance of 5 counsel claim at state court level). 6 Before deciding whether a petitioner is entitled to discovery under Rule 6(a), the court must 7 first identify the essential elements of the underlying claim. See Bracy, 520 U.S. at 904 (difficulties 8 of proof aside, petitioner's specific and supported allegation of judicial bias, if proved, would violate 9 due process clause). The court must then determine whether the petitioner has shown "good cause" 10 for appropriate discovery to prove his claim. See id. The scope and extent of the discovery 11 permitted under Rule 6(a) is a matter confided to the discretion of the district court. See Bracy, 520 For the Northern District of California United States District Court 12 U.S. at 909. For example, where the district court enters a protective order limiting the use of 13 discovered materials, the denial of a motion for reconsideration will be upheld absent an abuse of 14 discretion. See McDowell v. Calderon, 197 F.3d 1253, 1255-56 (9th Cir. 1999) (en banc). 15 16 I. 17 Analysis Application of 28 U.S.C. 2254(e)(2) The parties dispute whether, in addition to the "good cause" standard articulated supra, 28 18 U.S.C. 2254(e)(2) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 19 applies to this discovery motion. Respondent argues that it does, and that it limits the discovery 20 available to petitioner; petitioner counters that it does not apply to Rule 6 discovery motions and 21 that, even if it does, it does not limit the discovery available to him. 22 Section 2254(e)(2) of AEDPA provides certain guidelines for evidentiary hearings in habeas 23 matters. Specifically, 24 25 26 27 28 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 4 1 2 3 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 4 28 U.S.C. 2254(e)(2). The Supreme Court and the Ninth Circuit have confirmed that, in addition 5 to evidentiary hearings, section 2254(e)(2) applies to requests to expand the record pursuant to Rule 6 7 of the Federal Rules Governing Section 2254 Cases. See Holland v. Jackson, 542 U.S. 649, 6527 53 (2004); Cooper-Smith v. Palmateer, 397 F. 3d 1236 (2005). Neither the Supreme Court nor the 8 Ninth Circuit, however, have squarely addressed whether or not section 2254(e)(2) applies to 9 discovery requests under Rule 6. 10 It is not necessary for this court to determine whether section 2254(e)(2) applies to discovery United States District Court 11 requests under Rule 6. Even assuming it does apply, it would not bar petitioner's requests because For the Northern District of California 12 petitioner has been "diligent" as that term has been construed under section 2254(e)(2). The 13 Supreme Court has held that section 2254(e)(2) applies "only [to] a prisoner who has neglected his 14 rights in state court" and confirmed that a court deciding whether a petitioner was diligent under 15 section 2254(e)(2) should determine "whether the prisoner made a reasonable attempt, in light of the 16 information available at the time, to investigate and pursue claims in state court." Williams v. 17 Taylor, 529 U.S. 420, 435 (2000). The Williams Court found diligence where the petitioner had 18 sought, but not received, an evidentiary hearing in state court. Id. at 430, 437; see also Gonzales v. th 19 Knowles, 515 F.3d 1006 (9 Cir. 2008) (assuming diligence where petitioner had not been given an 20 opportunity for an evidentiary hearing during state habeas proceeding because of summary th 21 dismissal); Earp v. Stokes, 431 F.3d 1158 (9 Cir. 2005) (finding diligence where petitioner had not 22 been given an opportunity for an evidentiary hearing during state habeas proceeding because of 23 summary dismissal by the California Supreme Court). 24 Here, petitioner requested discovery in both of his state habeas petitions for writ of habeas 25 corpus in the California Supreme Court. In both of those cases, his petition was summarily rejected 26 without the grant of his discovery request. As such, he has been diligent under Williams and section 27 2254(e)(2) does not bar him from discovery under Rule 6. 28 5 1 II. 2 Discovery Regarding Ineffective Assistance of Counsel Claims Petitioner seeks leave to conduct discovery regarding his claim of ineffective assistance of 3 counsel. Specifically, he seeks to depose Dennis Kollenborn and Mariann C. Cropper, his defense 4 attorneys at his capital trial. He also requests leave to discover Kollenborn and Cropper's case5 related files. Finally, he seeks to take depositions of sixteen proposed mitigation witnesses that he 6 identifies in his petition. 7 Petitioner has demonstrated good cause to depose his trial attorneys and discover their case- 8 related files. His Amended Petition contains specific allegations of deficient performance on the 9 part of both of his attorneys. Because trial strategy is an issue in ineffective assistance of counsel 10 claims, petitioner has good cause to depose his former attorneys on, inter alia, their trial tactics and th 11 strategy. See, e.g., Jones v. Wood, 114 F.3d 1002, 1009 (9 Cir. 1997) (finding that discovery is United States District Court For the Northern District of California 12 warranted under Rule 6 where it is necessary to "develop fully ineffective assistance of counsel 13 claims"). 14 Petitioner has also requested leave to depose sixteen lay witnesses "as he determines it 15 necessary." Petitioner's Motion at 9. He argues generally that their testimony would have been 16 helpful to his case in mitigation, and will support his claim that his counsel's alleged deficient 17 performance was prejudicial to him. 18 Rather than granting petitioner open-ended leave to depose up to sixteen people in numerous 19 locations, the court will deny this request without prejudice. The court recognizes that discovery in 20 support of the prejudice prong of petitioner's ineffective assistance of counsel claim may be 21 appropriate. Jones, 114 F.3d at 1009. Petitioner has not demonstrated, however, that leave to 22 depose up to sixteen people as his discretion is warranted at this juncture. Should petitioner 23 determine it necessary to depose certain of these lay witnesses, he should renew his request at that 24 time. In order to make the proper showing of good cause, his request should demonstrate with 25 particularity why the anticipated testimony of each requested deponent will assist him in developing 26 facts that will show he is entitled to relief on his ineffective assistance of counsel claim. See Bracy, 27 520 U.S. at 908-909. Respondent is ordered to file any opposition within five days of petitioner's 28 renewed request. No reply will be necessary. 6 1 In sum, petitioner's request for leave to depose and serve discovery requests on attorneys 2 Kollenborn and Cropper is GRANTED. His request for leave to depose sixteen lay witnesses is 3 DENIED WITHOUT PREJUDICE. 4 III. 5 Discovery Regarding Factual Innocence Claim Petitioner seeks leave to conduct discovery regarding his claim that he is factually innocent. 6 Specifically, petitioner seeks to depose Rupert Lee Harper, who petitioner claims will testify that 7 petitioner did not fire any shots during the Bottle Shop crimes. 8 Harper's statements regarding the Bottle Shop crimes have changed over time. Harper, who 9 is petitioner's brother-in-law, was convicted of second degree murder for the Bottle Shop crimes. 10 Amended Petition 49. While in prison in 1990, he signed a declaration stating that he "fired all 11 the shots" during the Bottle Shop crimes. Amended Petition, Ex. E. For the Northern District of California United States District Court 12 Less than a year later, however, during a parole suitability hearing held on January 17, 1991, 13 Harper testified under oath in some detail about the Bottle Shop crimes. Amended Petition, Ex. B. 14 He stated that he went to the Bottle Shop with petitioner in order to purchase alcohol, and that he 15 stayed in the car while petitioner went inside. Id. at 4-5. After petitioner returned to the car and told 16 Harper that he (petitioner) was not allowed to purchase the alcohol because he was underage, Harper 17 accompanied petitioner into the store. Id. at 6-8. Harper stated that petitioner then drew a gun and 18 demanded money, Harper also stated that he had not known that petitioner was armed. Id. at 8-9. 19 During his parole testimony, Harper also stated that petitioner took the victims to the rear of 20 the store at gunpoint and hit one of them with a bottle. Id. at 9-11. Harper stated that he urged 21 petitioner to leave with him, but that petitioner stated something like, "he didn't want to leave no 22 witness." Id. at 11-12. Harper stated that he heard four or five shots as he walked to the front of the 23 store. Id. at 12-13. Harper did not see the shooting but stated that petitioner was the only one who 24 had a gun. Id. at 38-39. 25 Harper maintained that he did not plan the robbery nor know that it was going to happen. He 26 stated that he had nothing to do with the shooting or other assaults on the victims, and had not talked 27 to petitioner since the offense. Id. at 14-15, 21-23. He stated that he fled after the crime, and 28 7 1 pleaded no contest to second degree murder after he was apprehended because he did not want to 2 "tell" on petitioner. Id. at 14-21. 3 Harper was also questioned about his 1990 declaration during the parole hearing. Harper 4 stated that he spoke to a lawyer representing petitioner, but he denied admitting to the shootings. Id. 5 at 39-41. Harper stated that the attorney asked him to sign a piece of paper that was mostly blank, 6 and Harper did so "to help my brother-in-law." Id. at 40-41. Harper stated that he did not remember 7 what was on the paper, and insisted his parole testimony was truthful and consistent with what he 8 had told petitioner's attorney. Id. at 40-43. 9 Petitioner has not demonstrated good cause to depose Harper. Petitioner maintains that 10 deposing Harper will "set the record straight," but even if petitioner were to depose Harper, Harper's United States District Court 11 testimony would not allow petitioner to demonstrate that he is entitled to relief. Bracy, 520 U.S. at For the Northern District of California 12 908-09. Were Harper to testify in accordance with his more recent parole board testimony, which 13 was taken under oath, his testimony would damage petitioner's claim of factual innocence. If 14 Harper testifies in accordance with his 1990 declaration, he would be highly impeachable, as he 15 would be changing his testimony for the second time, rendering it unreliable. As such, petitioner's 16 request to depose Rupert Lee Harper is DENIED. 17 IV. 18 Discovery Regarding Race-Based Prosecution Claim In his Amended Petition, petitioner alleges that Deputy District Attorney Richard Gardner, 19 who prosecuted petitioner, impermissibly prosecuted petitioner on the basis of his race. Petitioner, 20 who is African-American, also alleges that there was systemic racial discrimination present in the 21 Santa Clara County District Attorney's Office at the time he was prosecuted. 22 In conjunction with these claims, petitioner seeks leave to serve a deposition subpoena and 23 document requests on Gardner. Specifically, he requests Gardner's testimony, his official files, and 24 his personal notes regarding the prosecution of petitioner's case. In addition, he requests documents 25 from the District Attorney's Office related to how the Office exercised its discretion to charge 26 special circumstances and seek the death penalty. 27 Petitioner has not demonstrated good cause for this discovery. Specifically, he has not 28 submitted specific allegations that "show reason to believe that the petitioner may, if the facts are 8 1 fully developed, be able to demonstrate that he is . . . entitled to relief ." Bracy, 520 U.S. at 908-09 2 (citations omitted). 3 In order to successfully bring a claim for unconstitutional race-based prosecution, petitioner 4 must show "that the prosecution was motivated by a discriminatory purpose in the very case before th 5 the court." United State v. Diaz, 961 F.2d 1417, 1420. (9 Cir. 1992) (internal quotations and 6 citations omitted). Here, petitioner alleges that Gardner portrayed the non-white Hispanic victims in 7 this case as white, because he knew "that blacks are more frequently convicted and sentenced to 8 death if their victims are white." Petitioner's Motion at 12. Petitioner does not, however, cite to the 9 trial record or to any other source that demonstrates such a portrayal; as such, his claim appears to 10 be based on no more than speculation. As the Ninth Circuit has confirmed, habeas discovery is not 11 warranted in such a situation. See Calderon, 98 F.3d at 1106 (stating that discovery is not intended For the Northern District of California United States District Court 12 "to develop claims for which there is no factual basis."). Accordingly, petitioner's request to serve a 13 deposition subpoena and document requests on Gardner must be DENIED. 14 Petitioner has also not demonstrated good cause to serve document requests upon the Santa 15 Clara County District Attorney's Office. Petitioner states that he is informed and believes that the 16 Office did not pursue the death penalty against similarly situated non-black defendants or against 17 similarly situated defendants with non-white victims. He does not, however, cite to any source for 18 his information and belief, and as Calderon states, there must be some factual basis for a habeas 19 claim before a district court may authorize discovery. Id. (stating that "Conclusory allegations are 20 not enough to warrant discovery under Rule 6. . . ; the petitioner must set forth specific allegations 21 of fact.") (internal quotations and citations omitted)). 22 Petitioner also maintains that the prosecutor's peremptory challenge of prospective black 23 jurors suggests systemic racial discrimination. This court has already granted respondent's motion 24 for summary judgment on Claim 6, which alleges improper racially-motivated peremptory strikes in 25 violation of Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner cannot now argue that his failed 26 Batson claim supports his claim of systemic racial discrimination. Therefore, petitioner's request to 27 serve document requests on the Santa Clara County District Attorney's Office in conjunction with 28 his race-based prosecution claim is DENIED. 9 1 V. 2 Discovery Regarding Other Prosecutorial Misconduct Claims In addition to his race-based prosecution claim, petitioner makes numerous other allegations 3 of prosecutorial misconduct in Claim 19 of his Amended Petition. He now seeks leave to conduct 4 discovery regarding three specific subclaims: Claim 19B(f) (claiming that the prosecutor improperly 5 urged the jury to consider petitioner's alleged failure to show remorse); Claim 19B(aa) (claiming 6 that the prosecutor made an improper comment regarding the "liberal leaning" of the California 7 Supreme Court); and Claim 19B(cc) (claiming that the prosecutor improperly stated his personal 8 opinion that death was the appropriate penalty-phase verdict). Although all of these claims have 9 been dismissed due to procedural default, petitioner intends to bring a motion arguing that the 10 default should be excused due to cause and prejudice and/or a fundamental miscarriage of justice. As with his claim of race-based prosecution, petitioner requests leave to depose prosecutor United States District Court 11 For the Northern District of California 12 Gardner and examine his files, and also to discover other records from the Santa Clara County 13 District Attorney's Office. And, as with his claim of race-based prosecution, petitioner has not 14 demonstrated good cause for the requested discovery. 15 The Supreme Court has held that when reviewing a habeas claim of prosecutorial 16 misconduct, the relevant inquiry is not whether "the prosecutor's remarks were undesirable or even 17 universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations omitted). 18 Rather, the issue "is whether the prosecutors' comments `so infected the trial with unfairness as to 19 make the resulting conviction a denial of due process.'" Id. (citing Donnellly v. DeChristoforo, 416 20 U.S. 637 (1974). "Moreover, the appropriate standard of review for such a claim on writ of habeas 21 corpus is the narrow one of due process, and not the broad exercise of supervisory power." Id. 22 (citations omitted). 23 Petitioner has not demonstrated that the discovery requested will allow him to develop facts 24 that may entitle him to demonstrate that he is entitled to relief. See Bracy, 520 U.S. at 908-909. To 25 the extent that petitioner will be arguing that his counsel's failure to object to the prosecutor's 26 comments in question was constitutionally deficient performance, he need not depose the prosecutor 27 or discover documents from the prosecutor or his employer in order to show that. In addition, 28 petitioner has not demonstrated that the discovery he requests would assist him in showing that the 10 1 prosecutor's comments so infected the trial with unfairness as to make petitioner's conviction a 2 denial of due process. As such, petitioner has not demonstrated good cause for the requested 3 discovery under Rule 6, and his request must be DENIED. 4 VI. 5 Discovery Regarding Shackling Claim In Claims 2C and 9 of his Amended Petition, petitioner maintains that he was 6 unconstitutionally shackled during his trial and sentencing. In support of these claims, petitioner 7 requests leave to subpoena certain records from prosecutor Gardner and the Santa Clara County 8 District Attorney's Office and to depose Gardner. He also requests leave to subpoena the shackle 9 used during his trial (or, in the alternative, identifying information about it or an exemplar of an 10 identical shackle). Petitioner has not shown good cause for this discovery in relation to Claim 2C, which argues United States District Court 11 For the Northern District of California 12 that his trial counsel was ineffective in responding to petitioner's courtroom shackling. Petitioner 13 has not made specific allegations demonstrating that deposing Gardner or reviewing the requested 14 records will allow him to develop facts that will entitle him to relief on his ineffective assistance of 15 counsel claim. Neither Gardner's testimony nor information from Gardner or the DA's Office is 16 relevant to petitioner's claim that his counsel ought to have objected to his shackling and that he 17 (petitioner) was prejudiced by counsel's failure to do so. 18 Claim 9, which alleges that petitioner was unconstitutionally shackled during his trial, was 19 dismissed by this court as procedurally defaulted. As the court has already authorized, however, 20 petitioner intends to bring a motion arguing that the default is excused either by cause and prejudice 21 or a fundamental miscarriage of justice. Specifically, petitioner plans to argue that his counsel ought 22 to have objected to the shackles, and that the cause for the default was his counsel's deficient 23 performance. In addition, petitioner plans to argue that his shackling was a fundamental miscarriage 24 of justice. See, e.g., Deck v. Missouri, 544 U.S. 622, 624 (2005) (holding that, absent an essential 25 state interest, visible shackles are unconstitutional during the guilt or penalty phase of a capital 26 case). Again, petitioner has failed to demonstrate that deposing Gardner or reviewing the requested 27 records will allow him to develop facts that will entitle him to relief on this claim. This court has 28 already granted petitioner discovery on his ineffective assistance of claim, and that discovery will 11 1 assist petitioner in developing his allegations that his counsel was constitutionally deficient in failing 2 to object to the shackling. Petitioner argues that Gardner's testimony is critical because he was an 3 "eyewitness" to the shackling, but petitioner does not demonstrate how eyewitness testimony from a 4 prosecutor is relevant to the essential elements of his underlying claim. See Bracy , 520 U.S. at 9085 909. Thus, petitioner's request to depose Gardner and discover the requested documents is 6 DENIED. 7 Petitioner has, however, demonstrated good cause for the discovery of the shackle used at his 8 trial (or, in the alternative, identifying information about it or an exemplar of an identical shackle). 9 The Ninth Circuit has stated that "the appearance and visibility of the restraining device" in question 10 is relevant to a determination of whether the restraints constitute prejudicial error. Larson v. th 11 Palmateer, 515 F.3d 1057, 1064 (9 Cir. 2008). As such, petitioner has met his burden under Rule United States District Court For the Northern District of California 12 6, and his request to subpoena the shackle used in his trial (or, in the alternative, identifying 13 information about it or an exemplar of an identical shackle) is GRANTED. 14 VII. 15 Request for Documents and to Serve Interrogatories Petitioner requests leave to serve extensive document requests and interrogatories on 16 respondent. Petitioner does not seek this discovery in conjunction with a particular claim; rather, he 17 states that "the principal purpose of such discovery is to determine the factual basis for Respondent's 18 denials, in his Answer" of the unresolved claims in the Amended Petition. Petitioner's Motion at 14. 19 Petitioner has not shown good cause for these discovery requests. He has not set forth 20 specific allegations that show the court reason to believe that he may "if the facts are fully 21 developed, be able to demonstrate that he is . . . entitled to relief." Bracy, 520 U.S. 908-09. Indeed, 22 petitioner does not even attempt to present specific allegations in support of these discovery 23 requests. Rather, he argues that this open-ended discovery will assist petitioner and the court in 24 determining the factual matters still in dispute and the proper scope of an evidentiary hearing. 25 Petitioner has not demonstrated that granting such a broad request is appropriate under the 26 circumstances of this case. Accordingly, petitioner's motion to serve document requests and 27 interrogatories on respondent is DENIED. 28 12 1 2 Conclusion For the foregoing reasons, petitioner's motion for leave to depose Dennis Kollenborn and 3 Mariann C. Cropper is GRANTED. His motion for leave to discover Kollenborn's and Cropper's 4 case-related files is GRANTED. His motion for leave to subpoena the shackle used in his trial (or, 5 in the alternative, identifying information about it or an exemplar of an identical shackle) is 6 GRANTED. 7 Petitioner's motion for leave to depose Rupert Lee Harper is DENIED. His motion for leave 8 to depose and to serve document requests on Richard Gardner is DENIED. His motion for leave to 9 serve document requests on the Santa Clara County District Attorney's Office is DENIED. His 10 motion for leave to serve document requests and interrogatories on respondent is DENIED. Petitioner's motion for leave to depose sixteen lay witnesses is DENIED WITHOUT United States District Court 11 For the Northern District of California 12 PREJUDICE. Should petitioner determine it necessary to depose certain of these lay witnesses in 13 the future, he should renew his request at that time. Respondent is ordered to file any opposition 14 within five days of petitioner's renewed request. No reply will be necessary. 15 16 17 IT IS SO ORDERED. 18 DATED: 9/30/08 19 20 21 22 23 24 25 26 27 28 13 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

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