Barno v. Hernandez

Filing 129

ORDER: (1) Granting Motion For Reconsideration Of Order Rejecting Document; (2) Denying Motion For Leave To Conduct Discovery (Re Doc. 121 ). Signed by Magistrate Judge Bernard G. Skomal on 5/25/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA

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RODNEY B. BARNO,

Civil No.

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Plaintiff,

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ORDER: (1) GRANTING MOTION FOR
RECONSIDERATION OF ORDER
REJECTING DOCUMENT; (2) DENYING
MOTION FOR LEAVE TO CONDUCT
DISCOVERY

v.
ROBERT J HERNANDEZ, Warden,

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Defendant.

[Doc. No. 121]

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08cv2439-WQH (BGS)

Petitioner Rodney B. Barno, a state prisoner proceeding pro se, filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254. Currently before the Court is Petitioner’s motion for

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reconsideration of this Court’s discrepancy order rejecting Petitioner’s motion for an order compelling

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discovery.

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RELEVANT FACTS

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Petitioner attempted to file a motion to compel discovery. (Doc. No. 120.) With his motion,

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Petitioner affixed interrogatories, requests for production, and requests for admission that he wanted the

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Court to compel Respondent to answer. Because he did not first request leave to conduct discovery, and

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fashioned his motion as a motion to compel pursuant to Federal Rule of Civil Procedure 37(a), the Court

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rejected the document. (Doc. No. 120.) In response, Petitioner filed the instant motion for

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reconsideration. (Doc. No. 121.) In addition to deciding the motion for reconsideration, the Court will

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also construe this as a motion for leave to conduct discovery pursuant to Rule 6(a) of the Rules
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08cv2439-WQH

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Governing Section 2254 Cases in the United States District Courts. Petitioner argues that his Petition

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for Writ of Habeas Corpus sets forth the good cause necessary for the Court to permit discovery and that

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he needs the discovery in order to establish than he is entitled to an evidentiary hearing on his claims of

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innocence, ineffective assistance of counsel, and prosecutorial misconduct.

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LEGAL STANDARD

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In habeas proceedings the petitioner “is not entitled to discovery as a matter of ordinary course.”

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Bracy v. Gramley, 520 U.S. 899, 904 (1997). The availability of any discovery during a habeas

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proceeding is committed to the sound discretion of the district court.” Campbell v. Blodgett, 982 F.2d

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1356, 1357 (9th Cir. 1993) (citing 28 U.S.C. foll. § 2254 Rule 6 & adv. comm. note (1988)). “Good

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cause exists ‘where specific allegations before the court show reason to believe that the petitioner may,

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if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . .” Smith v.

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Mahoney, 611 F.3d 978, 996 (9th Cir. 2010) (citing Bracy, 520 U.S. at 928-29). Habeas is an important

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safeguard whose goal is to correct real and obvious wrongs. It was never menat to be a fishing

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expedition for habeas petitioners to ‘explore their case in search of its existence.’” Rich v. Calederon,

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187 F.3d 1064, 1067 (9th Cir. 1999) (quoting Calderon v. U.S.D.C. (Nicholaus), 98 F.3d 1102, 1106 (9th

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Cir. 1996)).

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DISCUSSION

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Having reviewed Petitioner’s claims and the proposed discovery, at this time the Court does not

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find good cause exists to grant leave to conduct discovery. Here, Petitioner seeks broad discovery of all

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exculpatory evidence, in the apparent hope of finding evidence in support of his claims. Petitioner,

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however, has not demonstrated that any of this discovery is necessary for the full development of his

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claims of innocence, ineffective assistance of counsel, or prosecutorial misconduct. Petitioner’s

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document requests principally seek law enforcement records relating to the underlying criminal

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investigation, as well as all telephone call records from 2002-2003 for phones used by Petitioner, Chris

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Barno, Daniell Anaya, and Helen Anaya-Rioux. The requests for admission largely go to issues of

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witness credibility. And Petitioner’s interrogatories contain multiple sub-parts and primarily seek to

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investigate the facts of the underlying criminal investigation and trial. Thus, it does not appear that the

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discovery Petitioner seeks will uncover “favorable, material information” tending to support his claims.
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08cv2439-WQH

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Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005). Petitioner also failed to explain why prior state

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court proceedings did not adequately develop the information sought and why he is not at fault for the

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alleged inadequacies of the state court record. Because Petitioner has not demonstrated that the

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information sought through discovery would result in him being entitled to habeas relief on any of his

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claims the motion for discovery is DENIED without prejudice.

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CONCLUSION

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The Motion for Reconsideration of the Court’s discrepancy order is GRANTED.

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2.

For the reasons stated above, the Motion for Leave to Conduct Discovery is DENIED

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without prejudice.
IT IS SO ORDERED.
DATED: May 25, 2011

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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08cv2439-WQH