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Lucas v. Judge Advocate General

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 15, 2006

DAVID LUCAS, PETITIONER,
v.
JUDGE ADVOCATE GENERAL, NAVAL CRIMINAL INVESTIGATIVE SERVICES, AND DEPARTMENT OF THE NAVY, RESPONDENTS.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PETITION AS PROCEDURALLY IMPROPER AND DENYING MOTION AS MOOT

Petitioner, David Lucas, filed a pro se petition against the Judge Advocate General, Naval Criminal Investigative Services, and the Department of the Navy seeking the results of a DNA test allegedly performed by the Navy in 1989. (Doc. No. 1.) Petitioner alleges that he believes the results are needed for his claim of actual innocence relating to his conviction in the U.S. Navy. (Id.) Petitioner has also filed a motion requesting the Court to construe his petition as seeking preaction discovery rather than habeas corpus relief. (Doc. No. 5.)

Having reviewed the petition and the relevant portions of the record, the Court DENIES Petitioner's petition without prejudice as procedurally improper. (Doc. No. 1.) Petitioner has not directed the Court to any authority stating why this Court, rather than a military or administrative agency, has jurisdiction to adjudicate a discovery dispute relating to a military proceeding. Further, Petitioner has not provided any authority indicating that discovery under Rule 27 would be appropriate given the procedural posture of this case. "Rule 27 is not a substitute for discovery. It is available in special circumstances to preserve testimony which could otherwise be lost." Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975). Rule 27 should not be used as a mechanism to draft a complaint or to conduct a presuit investigation. See generally 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Fed'l Practice & Procedure Civ. 2d, § 2071 (2006); see also In re Chester County Elec., Inc., 208 F.R.D. 545, 547 (E.D. Penn. 2002).

Finally, the Court construed Petitioner's petition as a habeas corpus petition. The Court emphasizes that it is not ruling on the merits of any habeas petition. The Court DENIES Petitioner's motion as moot. (Doc. No. 5.)

IT IS SO ORDERED.

20061215

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