Acedo v. Fisher, JR

Filing 20

ORDER Denying 15 Motion for Release on Own Recognizance and 19 Motion for Request for Discovery. Signed by Magistrate Judge Jan M. Adler on 2/28/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DANIEL ACEDO,

Case No.: 17CV2346-GPC(JMA)
Petitioner,

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v.

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R. FISHER, Warden,
Respondent.

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ORDER DENYING MOTION FOR
RELEASE ON OWN
RECOGNIZANCE [DOC. NO. 15]
& MOTION FOR REQUEST FOR
DISCOVERY [DOC. NO. 19]

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Petitioner Daniel Acedo (“Petitoner”) currently has two motions pending

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before the Court. The first is a motion for release on his own recognizance and

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the second is a motion to conduct discovery. Having reviewed in full Petitioner’s

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filings and, for the reasons set forth below, the Court DENIES both motions.

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I.

Motion for Release on Own Recognizance

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Petitioner, is a state prisoner proceeding pro se who initiated this habeas

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corpus case pursuant to 28 U.S.C. § 2254 on November 17, 2017. [Doc. No. 1.]

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He has since filed a motion for release on his own recognizance, requesting a

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bail amount be set. [Doc. No. 15.] The Court may, pursuant to 18 U.S.C. § 3142,

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order the release of an individual charged with an offense pending trial. Here,

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however, Petitioner has already been tried and convicted and is currently

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incarcerated, so this provision is not applicable to his situation. Furthermore,
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17CV2346-GPC(JMA)

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federal habeas law does not offer a means by which an incarcerated individual

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may be released during the pendency of his or her habeas petition. Petitioner’s

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motion for release is, therefore, DENIED with prejudice.

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II.

Motion for Discovery

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Petitioner also requests the Court permit him to conduct discovery,

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including requests for admission and interrogatories. A habeas petitioner “is not

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entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S.

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899, 904 (1997). Rule 6(a) of the Rules Governing § 2254 Cases requires that

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discovery be permitted only upon good cause shown. U.S.C. § 2254, Cases R.

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6(a). Good causes exists “where specific allegations before the court show

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reason to believe that the petitioner may, if the facts are fully developed, be able

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to demonstrate that he is . . . entitled to relief . . . .” Bracy, 520 U.S. at 908-09

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(quoting Harris v. Nelson, 394 U.S. 286, 300) (1969)). “Conclusory allegations

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are not enough to warrant discovery [in habeas cases]; the petitioner must set

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forth specific allegations of fact.” Ward v. Whitley, 21 F.3d 1355 (5th Cir. 1994).

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Habeas petitioners may not “use federal discovery for fishing expeditions to

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investigate mere speculation.” Calderon v. U.S. Dist. Court, 98 F.3d 1102, 1106

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(9th Cir. 1996). Here, Petitioner has not set forth specific allegations supporting a

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need for the information sought, and thus has not demonstrated good cause for

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discovery. Accordingly, his motion for discovery is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: February 28, 2018

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17CV2346-GPC(JMA)