McGary v. Strong

Filing 12

ORDER denying 9 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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DARNELL O MCGARY,

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CASE NO. C14-5829 BHS-KLS

Petitioner,

ORDER DENYING PETITIONER’S
MOTION FOR DISCOVERY

v.
MARK STRONG,
Respondent.

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Petitioner Darnell McGary seeks an order “ allowing discovery as good cause is being
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shown to reference the illegal nature of his restraint. Dkt. 9. Mr. McGary fails to show that
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discovery is necessary or proper under the limited scope of review allowed by 28 U.S.C.§
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2254(d), and therefore, the motion is denied.
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DISCUSSION
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Rule 6(a) of the Rules Governing Section 2254 Cases provides that a judge may, for good
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cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and
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may limit the extent of discovery. Rule 6(a), 28 U.S.C. foll.§2254. However,“[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). Discovery is properly limited in
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ORDER DENYING PETITIONER’S MOTION FOR
DISCOVERY- 1

1 habeas corpus because it “is not the trial itself but a collateral attack upon a standing conviction.
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2 Austad v. Risley, 761 F.2d 1348, 1355 n. 4 (9th Cir. 1985). Absent a showing of good cause, a
3 court should deny a motion for leave to conduct discovery. Rich v. Calderon, 187 F.3d 1064,
4 1067-68 (9th Cir. 1999). To show good cause, the petitioner must set forth specific facts
5 showing that discovery is appropriate in the particular case. Deputy v. Taylor, 19 F.3d 1485,
6 1493 (3rd Cir. 1994) (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3rd Cir. 1987)).
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In addition, the Court’s review is limited to the record before the state courts when the

8 state courts adjudicated the claims. 28 U.S.C.§ 2254(d); Cullen v. Pinholster, 131 S. Ct. 1388,
9 1398 (2011). “Evidence introduced in federal court has no bearing on§ 2254(d)(1) review. If a
10 claim has been adjudicated on the merits by a state court, a federal habeas petitioner must
11 overcome the limitation of§ 2254(d)(1) on the record that was before that state court. Id. at 1400.
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Under this limited scope of review, the Court may not consider new evidence not

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Mr. McGary does not set forth specific facts showing that discovery is appropriate in his

15 case. Therefore, his motion (Dkt. 9) is DENIED. The Clerk shall send a copy of this Order to
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DATED this 12th day of November, 2014.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER DENYING PETITIONER’S MOTION FOR
DISCOVERY- 2