Bruscino v. True et al
ORDER; 22 Motion Take Depositions Upon Written Interrogatories is DENIED, by Magistrate Judge Kathleen M. Tafoya on 3/15/16.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 15–cv–02845–KMT
ACTING WARDEN TRUE, and
UNITED STATES PAROLE COMMISSION,
This matter is before the court on Applicant’s “Motion to Take Depositions Upon Written
Interrogatories” (Doc. No. 22, filed March 14, 2016.)
Applicant seeks to take written depositions of a social worker and a case manager who
were present at his parole hearing on September 29, 2015. Because no “trial” occurs in a habeas
action, discovery is limited. “The procedures set out in the habeas corpus statutes take
precedence over the Federal Rules of Civil Procedure during the pendency of habeas corpus
proceedings.” Burton v. Johnson, 975 F.2d 690, 694 (10th Cir. 1992) (citing Browder v. Dir.,
Dep’t of Corr., 434 U.S. 257, 267–68 (1978)). However, 28 U.S.C. § 2246 authorizes
interrogatories and depositions in limited circumstances. Pursuant to § 2246, “[o]n application
for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion
of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound
written interrogatories to the affiants, or to file answering affidavits.” A district court, when
presented with a § 2241 petition that establishes a prima facie case for relief, “may use or
authorize the use of suitable discovery procedures, including interrogatories, reasonably
fashioned to elicit facts necessary to help the court to dispose of the matter.” Harris v. Nelson,
394 U.S. 286(290) (1969) (internal quotations omitted); see also Hernandez v. Garrison, 916
F.2d 291, 293 (5th Cir. 1990) (rules of pretrial discovery are not applicable to the habeas corpus
proceedings unless necessary to help the court dispose of the matter as law and justice require).
However, Applicant has not argued and the court does not find that Applicant’s § 2241
habeas petition establishes a prima facie case for relief, nor that discovery is necessary to help
the court dispose of the matter. Accordingly, it is
ORDERED that the motion (Doc. No. 22) is DENIED.
Dated thus 15th day of March, 2016.
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