IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 17, 2008
MICHAEL E. FRANKLIN, PETITIONER,
JAMES WALKER, ACTING WARDEN, RESPONDENT.
This matter was on calendar on December 17, 2008 for a hearing on petitioner's motion for discovery. Robert D. Bacon appeared for petitioner; Catherine Tennant Nieto and Carlos Martinez, Deputy Attorneys General, appeared for respondent.
The parties are directed to file by January 16, 2009, simultaneous briefs not to exceed fifteen pages addressing the following questions:
1. Does the inclusion of the final paragraph referring to Dr. Grewal's declaration in the discussion of Claim Eleven, at page 117 of the traverse, violate the admonition of Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), that a traverse is not the proper place to raise new claims, and thus undercut any showing of good cause for discovery?
2. Would granting the request for discovery of the raw data underlying the Exponent simulations have the effect of supplementing or altering the claims in the petition? The parties should address Aiken v. Spaulding, 841 F.2d 881 (9th Cir. 1988) and Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999), as well as any other relevant authority.
3. Does the Sixth Amendment right to present a defense include the right of access to evidence for dynamic or destructive testing?
4. Would the state court have granted a properly supported trial motion for dynamic or destructive testing of the snowmobile?
5. Is dynamic or destructive testing available in a habeas discovery proceeding?
6. The parties should also supply the additional citations to the record, discussed during the hearing, supporting their positions on the state court's response to petitioner's discovery requests.
IT IS SO ORDERED.
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