The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER DENYING PETITIONER'S APPLICATION TO CONDUCT CERTAIN INVESTIGATION
Petitioner filed an Application to Conduct Certain Investigation. Specifically, Petitioner seeks an Order from this Court authorizing Petitioner to conduct interviews of the jurors who served on his San Diego Superior Court case. Petitioner acknowledges that the state trial court issued an order prohibiting contact with the jurors in this case, but asserts that it is not binding in this Court.
Respondent opposes this Application. He contends that the state court order regarding juror contact is still extant and that Petitioner should apply to that court for permission to contact the former jurors. Respondent further asserts that Petitioner has failed to demonstrate good cause for the desired juror contact, and thus no court should grant such an application.
Upon consideration, the Court DENIES Petitioner's Application without prejudice.
Petitioner was convicted in the San Diego County Superior Court on May 22, 1991, of one count of first degree murder, two counts of robbery, one count of burglary, one count of forcible rape, and one count of forcible oral copulation. People v. Carter, 36 Cal.4th 1215, 1220 (2005), cert. denied, 126 S.Ct. 1881 (2006). The jury also found true the special circumstance allegations that the murder was committed while lying in wait, that the murder was committed while the Petitioner was engaged in the commission or attempted commission of a robbery, that the murder was committed while the Petitioner was engaged in the commission or attempted commission of a burglary, and that Petitioner had previously been convicted of three counts of murder in Los Angeles County Superior Court. Id. at 1221. At the conclusion of the penalty phase, the jury returned a verdict of death and the court entered judgment in accordance with it. Id. The sentence was upheld on appeal to the California Supreme Court. Id. The California Supreme Court denied Petitioner's state habeas petition on June 28, 2006, and amended the order denying the petition on September 13, 2006.
Petitioner initiated his federal habeas action on June 29, 2006, by filing a motion for appointment of counsel pursuant to Local Civil Rule HC.3(d)(1). The Court filed an order appointing counsel on September 22, 2006. A protective petition for habeas corpus was filed on December 6, 2006.
Presently before the Court is Petitioner's "Application to Conduct Certain Investigation." Petitioner had previously requested to file this Application ex parte and under seal. On November 17, 2006, the Court denied that request and returned the document to Petitioner. [Doc. No. 17.] On November 22, 2006, Petitioner filed an Application to Conduct Certain Investigation with notice to the opposing party. [Doc. No. 18.] On December 6, 2006, Respondent filed an Opposition to this Application. [Doc. No. 23.] On December 7, 2006, Petitioner filed a Reply. [Doc. No. 33.]
Petitioner seeks "an order authorizing his federal habeas investigation to proceed unimpeded by a state trial court order that, on its face, might be read as purporting to limit the full scope of federal habeas counsel's investigation." (Petitioner's Application ["App."] at 2.) Petitioner aims to "conduct a complete investigation that includes ascertaining whether any member of the jury panel engaged in ex parte contacts, considered extra-judicial evidence, or intentionally concealed or failed to disclose material information relating to their qualifications to serve as jurors in Mr. Carter's case." (App. at 3.) Respondent asserts that "[t]here is nothing in the record which even remotely suggests the potential for habeas claims based on juror misconduct," and asks this Court to deny Petitioner's application. (Respondent's Opposition ["Opp."] at 2.) Respondent further posits that the state trial court is in the best position to rule on a request to interview the trial jurors, and as that court had previously issued an order prohibiting contact with the jurors, the request should be first raised with that court. (Id. at 1-2.)
A. Petitioner's Application in Federal Court
A habeas petitioner is not entitled to discovery "as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Neither should courts allow a petitioner to "use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. United States Dist. Ct. for the Northern Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996). Petitioner has not made any attempt to show a basis for contacting the jury in this case. Instead, Petitioner maintains that he does not seek discovery. Petitioner affirms that he "knows the names of the individuals he desires to interview," and is not asking the Court "to produce any witness, any document, or any tangible item of evidence." (Petitioner's Reply ["Reply"] at 5.)
The Ninth Circuit has routinely treated requests to interview jurors as a discovery issue, and as such, there are procedures currently in place regarding contact with former jurors. When a party seeks contact with former jurors, a district court regularly requires a showing of good cause. See Rule 6(a) foll. 28 U.S.C. § 2254 ("A party shall be entitled to invoke the process of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.") To make such a determination, the Court must consider all facets of a petitioner's claim and evaluate whether "specific allegations before the court show reason to believe ...