Alston v. Uttecht

Filing 18

ORDER denying 15 Motion for Discovery; Motions terminated: 15 MOTION for Discovery filed by Kenneth R. Alston.; 17 Amended Petition, re 12 Response to Habeas Petition NOTED on motion calendar; : Noting Date 5/20/2011. re 17 Amended Petition, re 12 Response to Habeas Petition NOTED on motion calendar. A COPY OF THIS ORDER HAS BEEN MAILED TO PETITIONER TODAY. Signed by Hon. Mary Alice Theiler.(GB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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08 KENNETH R. ALSTON,
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Petitioner,
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v.
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JEFFERY A. UTTECHT,
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Respondent.
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____________________________________ )

CASE NO. C11-250-TSZ-MAT

ORDER DENYING MOTION FOR
DISCOVERY AND RE-NOTING
PETITION

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This is a federal habeas action brought under 28 U.S.C. § 2254. This matter comes

15 before the Court at the present time on petitioner’s motion for discovery. Respondent has filed
16 a response opposing petitioner’s motion. The Court, having reviewed petitioner’s motion,
17 respondent’s response, and the balance of the record, does hereby find and ORDER as follows:
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(1)

Petitioner’s motion for discovery (Dkt. No. 15) is DENIED. Petitioner requests

19 in his motion that he be provided with transcripts of the opening statements from his trial so that
20 he “may establish facts violating rights to comment on right to remain silent.” (Id.) He also
21 asks that he be granted a continuance, upon receipt of the discovery, so that he may “study the
22 facts and make a proper argument.” (Id.)

ORDER DENYING MOTION FOR
DISCOVERY - 1

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The Court may authorize a party to conduct discovery in an action brought under § 2254

02 upon a showing of good cause. Rule 6(a), Rules Governing Section 2254 Proceedings in the
03 United States District Courts. Petitioner has not made the requisite showing of good cause to
04 support his discovery request. Accordingly, the Court will not order production of the
05 requested transcript at this time.
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(2)

On May 2, 2011, the Court received from petitioner a document entitled

07 “Petition for Writ of Habeas Corpus under U.S. Const. Section 2254.” (See Dkt. No. 17.)
08 Given this caption, the document was posted on the Court’s docket as an amended petition for
09 writ of habeas corpus. However, a review of the document suggests that petitioner intended it
10 to constitute his response to respondent’s answer to the petition and the Court will construe it as
11 such. So construed, the document was not timely because it was not signed by petitioner until
12 several days after his response was due. The Court has nonetheless accepted the document for
13 filing. In order to allow respondent an opportunity to file a reply brief in support of his answer,
14 should he desire to do so, the Court RE-NOTES this matter on the calendar for consideration on
15 May 20, 2011. Respondent may file and serve any reply brief by that date.
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(3)

The Clerk is directed to send copies of this Order to petitioner, to counsel for

17 respondent, and to the Honorable Thomas S. Zilly.
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DATED this 10th day of May, 2011.

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A

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Mary Alice Theiler
United States Magistrate Judge

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ORDER DENYING MOTION FOR
DISCOVERY - 2