Bell v. Uttecht

Filing 12

ORDER denying 10 Motion for Discovery. Signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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REGINALD BELL, SR.,
No. C12-5215 RBL/KLS
Petitioner,
v.

ORDER DENYING MOTION FOR
DISCOVERY

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JEFFREY UTTECHT,
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Respondent.

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This 28 U.S.C. § 2254 petition has been assigned to United States Magistrate Judge

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Karen L. Strombom pursuant to 28 U.S. C. § 636(b)(1) and Local MJR 3 and 4. On March 26,

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2012, Petitioner was granted leave to proceed in forma pauperis (ECF No. 6) and the Court

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directed service of the habeas petition. (ECF No. 11). Petitioner has filed a motion for leave to

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conduct discovery in order to “produce evidence, permit inspection and copying of City of Fife

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Municipal Court records and orders identified by Petitioner.” ECF No. 10. After careful review,
the Court finds that the motion should be denied.
DISCUSSION

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Rule 6(a) of the Rules Governing Section 2254 Cases provides:

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A judge may, for good cause, authorize a party to conduct discovery under the
Federal Rules of Civil Procedure and may limit the extent of discovery. . . .

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Rule 6(a), 28 U.S.C. foll. § 2254.
“[T]here was no intention to extend to habeas corpus, as a matter of right, the broad
discovery provisions which, even in ordinary civil litigation, were ‘one of the most significant
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innovations’ of the new rules.” Harris v. Nelson, 394 U.S. 286, 295 (1969). “A habeas

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petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of

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ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). “In federal habeas corpus

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actions, the parties are entitled to use discovery procedures available under the Federal Rules of

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Civil Procedure only with the court’s permission.” Willis v. Newsome, 771 F.2d 1445, 1447
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(11th Cir. 1985). Discovery is properly limited in habeas corpus because it “is not the trial itself

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but a collateral attack upon a standing conviction.” Austad v. Risley, 761 F.2d 1348, 1355 n. 4

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(9th Cir. 1985). Absent a showing of good cause, a court should deny a motion for leave to

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conduct discovery. Rich v. Calderon, 187 F.3d 1064, 1067-68 (9th Cir. 1999); McDaniel v. U.S.

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Dist. Court, 127 F.3d 886 (9th Cir. 1997). To show good cause, the petitioner must set forth

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specific facts showing that discovery is appropriate in the particular case. Deputy v. Taylor, 19

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F.3d 1485, 1493 (3rd Cir. 1994) (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3rd Cir. 1987)).
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“[C]ourts should not allow prisoners to use federal discovery for fishing expeditions to

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investigate mere speculation.” Calderon v. U.S. Dist. Court N.D. Cal., 98 F.3d 1102, 1106 (9th

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Cir. 1996).

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In addition, under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal
court’s power to upset a state court’s adjudication of a criminal case is very limited. A federal
court shall not grant a habeas petition with respect to any claim adjudicated on the merits in the

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state courts unless the adjudication either: (1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established federal law, as determined by the

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Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of

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the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). A

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determination of a factual issue by a state court shall be presumed correct, and the applicant has
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the burden of rebutting the presumption of correctness by clear and convincing evidence. 28

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U.S.C. § 2254(e)(1). In determining whether relief is available under 28 U.S.C. § 2254(d)(1),

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the Court’s review is limited to the factual record that was before the state court. Cullen v.

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Pinholster, 131 S. Ct. 1388, 1398 (2011). In Pinholster, the Court explained the “backward-

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looking language” of the statute “requires an examination of the state-court decision at the time it
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was made. It follows that the record under review is limited to the record in existence at that

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same time i.e., the record before the state court.” Id. “[E]vidence introduced in federal court has

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no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state

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court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that

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was before that state court.” Id. at 1400.

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Further, pursuant to Rule 5(c) of the rules governing § 2254 cases provides that the

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Respondent shall indicate in the answer to a habeas petition what transcripts are available and
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what proceedings have been recorded but not transcribed. The State must attach to its answer

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any parts of the transcript it deems relevant. Once this is done, the Court, on its own motion or

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upon request of the Petitioner may order that further portions of the existing transcripts be

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furnished or that certain portions of the non-transcribed proceedings be transcribed and

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furnished. Rules Governing Section 2254 Cases in the U.S. Dist. Cts., 28 U.S. C. Pt. VI, ch. 153,

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Rule 5 (emphasis added); Simental v. Matrisciano, 363 F.3d 607, 612 (7th Cir. 2004). Except in

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limited circumstances, the district court does not make independent factual determinations. Id.

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citing 28 U.S.C. § 2254(e); United States ex rel. Green v. Greer, 667 F.2d 585, 586 (7th Cir.

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1981) (an examination of a record is not required if the petitioner fails to identify any

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incompleteness or inaccuracies in the facts before the district court.)

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ORDER - 3

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Petitioner has not shown how discovery is necessary or proper to resolve his federal

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habeas petition. In addition, the Respondent has not yet been served, much less answered or

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submitted relevant portions of the state court record. Accordingly, discovery is not necessary or

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proper at this time and Petitioner’s motion for discovery (ECF No. 10) is DENIED.

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DATED this 29th day of March, 2012.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 4