McDowell v. Barns et al

Filing 14

ORDER by Judge Lucy H. Koh granting 11 Motion Discovery/Subpoenas; denying 11 Motion to Stay; denying 11 Motion for Reconsideration (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 5/29/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DONALD WILLIAM MCDOWELL,

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Petitioner,

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v.

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WARDEN RON BARNES,
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Respondent.
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No. C 12-3706 LHK (PR)
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
DISCOVERY/SUBPOENAS, MOTION
TO RECONSIDER APPOINTMENT OF
COUNSEL, AND MOTION TO STAY;
SUA SPONTE GRANTING EXTENSION
OF TIME
(Docket No. 11.)

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to
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28 U.S.C. § 2254 challenging his conviction and sentence. Respondent has filed a motion to
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dismiss the petition as untimely. Petitioner has filed a “combined motion” listing several
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requests. For the reasons state below, the Court GRANTS in part and DENIES in part
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Petitioner’s combined motion, and sua sponte GRANTS Petitioner an extension of time to file
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his opposition to Respondent’s motion to dismiss.
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I.

Motion for Discovery / Subpoenas

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Petitioner argues that he needs documents in order to support his assertion that he is
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entitled to equitable tolling. (Dkt. No. 11 at 6-9.) For example, Petitioner asserts that he suffers
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from mental impairments but cannot obtain relevant medical documents. Further, Petitioner
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states that he has been subjected to several prison lockdowns but cannot determine the exact
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Order Granting in Part and Denying in Part Motion for Subpoenas, Motion to Reconsider Appointment of Counsel,
and Motion to Stay; Sua Sponte Granting Extension of Time
G:\PRO-SE\SJ.LHK\HC.12\McDowell706subpeot.wpd

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dates from proper officials. Petitioner also argues that he has not been able to conduct research

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regarding statutory and equitable tolling, and specifically, the case law cited by Respondent in

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his motion to dismiss. (Id. at 3-6.)

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A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

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discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997).

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However, Rule 6(a) of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254,

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provides that a “judge may, for good cause, authorize a party to conduct discovery under the

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Federal Rules of Civil Procedure and may limit the extent of discovery.” Good cause for

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discovery under Rule 6(a) is shown “‘where specific allegations before the court show reason to

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believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is .

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. . entitled to relief . . .’” Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)).

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The scope and extent of the discovery permitted under Rule 6(a) is a matter confided to the

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discretion of the district court. See Bracy, 520 U.S. at 909.

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In light of Petitioner’s request for discovery to demonstrate that he is entitled to equitable

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tolling, and the difficulty he has appeared to encounter in attempting to retrieve that information,

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Petitioner’s motion for discovery and subpoenas is GRANTED as to information limited to the

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issue of equitable tolling. Good cause appearing, and pursuant to Federal Rules of Civil

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Procedure 45, the Clerk of Court shall attach three blank signed subpoenas to this order for

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Plaintiff. Plaintiff shall complete the subpoenas and serve them.

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II.

Motion to Reconsider Appointment of Counsel

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Petitioner moves for reconsideration of this Court’s denial of appointment of counsel.

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Where the Court’s ruling has not resulted in a final judgment or order, reconsideration of the

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ruling may be sought under Rule 54(b) of the Federal Rules of Civil Procedure, which provides

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that any order which does not terminate the action is subject to revision at any time before the

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entry of judgment. See Fed. R. Civ. P. 54(b). “Reconsideration is appropriate if the district

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court (1) is presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”

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Order Granting in Part and Denying in Part Motion for Subpoenas, Motion to Reconsider Appointment of Counsel,
and Motion to Stay; Sua Sponte Granting Extension of Time
G:\PRO-SE\SJ.LHK\HC.12\McDowell706subpeot.wpd 2

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School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Petitioner has not

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satisfied any of these factors. Accordingly, the Petitioner’s request is DENIED without

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prejudice to the Court’s sua sponte reconsideration should the developments of this case dictate

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otherwise.

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III.

Motion to Stay

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Petitioner argues that the prison has experienced lockdowns, which have delayed his

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access to prisoner assistance and the law library, and requests a stay of the proceedings. The

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motion is DENIED to the extent that the Court will not indefinitely stay the proceedings.

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However, to give Petitioner time to retrieve the documents he wishes to use to demonstrate

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equitable tolling, the Court will sua sponte GRANT Petitioner an extension of time to file his

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opposition to Respondent’s motion to dismiss.

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Petitioner’s opposition to Respondent’s motion to dismiss is due no later than 75 days

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from the filing date of this order. Respondent’s reply is due 14 days thereafter. In support of

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Petitioner’s opposition, he should also provide a signed affidavit, signed under penalty of

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perjury, demonstrating with particularity that “(1) that he has been pursuing his rights diligently,

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and (2) that some extraordinary circumstance stood in his way” and prevented timely filing.

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Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

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CONCLUSION

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Petitioner’s motion for discovery/subpoenas is GRANTED. Petitioner’s motion to

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reconsider appointment of counsel is DENIED. Petitioner’s Motion to Stay is DENIED. The

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Court sua sponte GRANTS Petitioner an extension of time as set forth above to file an

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opposition to Respondent’s motion to dismiss.

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IT IS SO ORDERED.
DATED:

5/29/13
LUCY H. KOH
United States District Judge

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Order Granting in Part and Denying in Part Motion for Subpoenas, Motion to Reconsider Appointment of Counsel,
and Motion to Stay; Sua Sponte Granting Extension of Time
G:\PRO-SE\SJ.LHK\HC.12\McDowell706subpeot.wpd 3