The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING REQUEST FOR EVIDENTIARY HEARING WITHOUT PREJUDICE AND GRANTING DISCOVERY REQUEST AS MODIFIED (Docket no. 6)
Petitioner Stephen Liebb, a prisoner of the State of California who is incarcerated at San Quentin State Prison, has filed a pro se petition for a writ of habeas corpus challenging the constitutional validity of his July 17, 2003, parole suitability hearing before the Board of Prison Terms (BPT) and of the procedures the BPT relies upon to grant or deny parole to prisoners serving indeterminate sentences for murder. In response to the Court's Order to Show Cause Respondent has filed an answer to the petition and Petitioner has filed a traverse.
Petitioner requests an evidentiary hearing in order to develop the factual bases upon which the BPT relies when it denies parole suitability on the ground that the nature of the underlying crime is especially cruel, callous or egregious and hence "exceptional." He also seeks to develop the facts underlying the BPT's finding that his commitment offense of one count of first-degree murder was exceptional. In support of his claim that, in violation of due process, a BPT policy exists which categorizes all life-term crimes as exceptional, he asks for discovery of the decision pages of all BPT hearings held for life-term inmates in the years 2000 through 2003.*fn1 Respondent has not opposed Petitioner's requests.
Under the AEDPA express limitations are imposed on the power of a federal court to grant an evidentiary hearing. The habeas statute provides that a district court may not hold an evidentiary hearing on a claim for which the petitioner failed to develop a factual basis in State court unless petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
Even if an evidentiary hearing is permitted because a prisoner was able to clear the hurdle posed by § 2254(e)(2), one is not required. Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). The district court retains discretion whether to hold an evidentiary hearing or to expand the record with discovery and documentary evidence instead. Williams v. Woodford, 384 F.3d 567, 590 (9th Cir. 2004). This permissible intermediate step may avoid the necessity of an expensive and time consuming hearing in every habeas corpus case. Id. at 590-91.
Here, as a threshold matter, Petitioner has not alleged why he is entitled to an evidentiary hearing under § 2254(e)(2). He does not assert that his claim relies on a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, nor does he allege that the factual predicate of his claim could not have been previously discovered through the exercise of due diligence. Moreover, it is not clear to the Court that the facts which Petitioner seeks to develop could not be gathered other than by way of an evidentiary hearing, through the use of discovery and supplementation of the record. See Downs, 232 F.3d at 1041. Accordingly, the request for an evidentiary hearing is DENIED without prejudice as premature.
The Court now turns to Petitioner's discovery request. Rule 6 of the Federal Rules Governing Section 2254 Cases allows a habeas petitioner to invoke the processes of discovery available under the Federal Rules of Civil Procedure if the Court grants leave to do so. The Court may grant leave for discovery "in the exercise of [its] discretion and for good cause shown." Good cause is shown "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997), citing Harris v. Nelson, 394 U.S. 287, 300 (1969).
Petitioner seeks discovery of all parole decisions pertaining to life-term prisoners in the years 2000 through 2003, including the statement of reasons for each decision made. He argues that this information is relevant to proving his assertion that the BPT routinely categorizes all life-term crimes as exceptional in order to deny parole, and that such policy is in violation of due process. The Court finds good cause to grant Petitioner leave to proceed with limited discovery. However, at this point in the proceedings the Court finds his discovery request overbroad. Petitioner is not similarly situated to every life-term prisoner who had a parole suitability hearing between 2000 and 2003. Rather, for purposes of comparison the relevant starting place would seem to be the results of parole suitability hearings held during the year prior to Petitioner's most recent denial for life-term prisoners convicted of one count of first-degree murder. If it could be shown that all, or a significant majority of, such prisoners were denied parole during the relevant time period based on the exceptional nature of their commitment offense, then Petitioner might be able to argue that he is entitled to further discovery on this matter.
Accordingly, good cause appearing, the Court GRANTS Petitioner's discovery request, as modified, to include the statements of decision for all parole suitability hearings held during the year prior to Petitioner's 2003 parole suitability hearing for all life-term prisoners convicted of one count of first-degree murder. Respondent shall provide Petitioner with access to these materials within ninety (90) days of the date of this Order. If Petitioner intends to file a request to supplement the record with the discovery materials or a further discovery request he shall so notify the Court within thirty (30) days of his receipt of the materials. If he fails to do so the petition will be deemed submitted on the date the notice is due.