The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) GRANTING MOTION TO EXPAND THE RECORD; (2) DENYING MOTION FOR LEAVE TO AMEND: (3) GRANTING IN PART AND DENYING IN PART MOTION FOR DISCOVERY; AND (3) DIRECTING RESPONDENT TO SUBMIT DOCUMENTS FOR IN CAMERA REVIEW
Petitioner is a California prisoner proceeding pro se with a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego County Superior Court conviction of two counts of attempted murder. (Doc. No. 55.) The conviction arose from a drive-by shooting where Petitioner was identified as the driver and his co-defendant Richard Lee as the shooter, although Lee's conviction was overturned on state habeas four years after the trial. Petitioner alleges in the First Amended Petition that the prosecution committed misconduct and failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972), by failing to turn over exculpatory information which resulted in the overturning of Lee's conviction. Specifically, Petitioner contends the prosecution failed to turn over information regarding: (a) Darnell Jackson, a member of Petitioner's gang who apparently came forward after trial and provided information that Petitioner was the driver but Lee was not the shooter; and (b) a witness named William Allen, whom Petitioner contends made a statement impeaching prosecution witness Kevin Brown who testified that Petitioner had confessed. Petitioner also alleges that the Court can reach the merits of his claims irrespective of any procedural bar because he has satisfied the "actual innocence" standard set forth in Schlup v. Delo, 513 U.S. 298, 315 (1995) (holding that a claim of actual innocence is "a gateway though which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.")
On May 30, 2008, the Court found that this action was untimely because it was filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). (Doc. No. 54.) In that Order, the Court reserved ruling on whether dismissal of the First Amended Petition was appropriate, and directed further briefing on Petitioner's pending Motion for Discovery in order to determine whether Petitioner could avoid dismissal by satisfying the Schlup standard. (See 5/30/08 Order at 15-18.)
Respondent has filed an Opposition to Petitioner's discovery motion. (Doc. No. 60.) Petitioner has filed a Reply to the Opposition, as well as a Motion for Leave to Amend and a Motion to Expand the Record. (Doc. Nos. 64-66.)
I. Motion to Expand the Record
Petitioner moves to expand the record to include a response to an order to show cause filed by the San Diego County District Attorney in the state habeas proceedings of his co-defendant Richard Lee, wherein the District Attorney did not oppose granting Lee partial habeas relief. (Pet.'s Mot. to Expand [Doc. No. 65] Ex. A.) Petitioner contends this document shows that the information he seeks through discovery exists because it was generated when the District Attorney conducted an investigation into the "newly discovered" evidence exonerating Lee, and therefore Respondent's contention that no exculpatory information exists "is less than truthful." (Pet.'s Mot. to Expand Record at 2.) Such a document is permitted to be made part of the record and considered by the Court under Rule 7 of the Habeas Rules. See Rule 7(b) of Rules Following 28 U.S.C. § 2254 (providing that documents predating the filing of the Petition may be included in the record). Thus, the Court GRANTS Petitioner's Motion and EXPANDS the record in this case to include this document.
II. Motion for Leave to Amend
As Petitioner correctly notes, this Court, in its May 30, 2008 Order, liberally construed the First Amended Petition as arguing that the claims presented therein should be considered on their merits notwithstanding the failure to present them within the statute of limitations because Petitioner can fit through the Schlup gateway. (See 5/30/08 Order at 20.) The Court also construed the First Amended Petition as presenting claims alleging that the prosecution committed misconduct and failed to disclose exculpatory evidence in violation of Brady and Giglio due to the failure to turn over exculpatory information regarding Darnell Jackson, the witness who came forward after trial and apparently said that Petitioner was the driver but Lee was not the shooter, and a witness named William Allen, whom Petitioner contends made a statement impeaching prosecution witness Kevin Brown who testified that Petitioner confessed to his involvement in the shooting. (Id.) The Court reserved ruling on the Schlup issue pending further briefing on the pending discovery motion. (Id.)
Petitioner now seeks leave to amend the First Amended Petition in order to clarify that his Schlup claim is based not only on his contention that Jackson was the driver, but on the contention that the two victims, the Parish brothers, committed perjury when they testified that Petitioner was the driver and Lee the shooter, and based on Allen's statement impeaching Brown. (Pet.'s Mot. to Amend at 3.) Under a liberal construction of the First Amended Petition, these arguments are contained in Petitioner's Schlup argument, and the Court will consider them in ruling on whether Petitioner has fit through the Schlup gateway.
Petitioner also seeks leave to amend in order to raise a separate claim of perjury based on the arguments presented in support of his Schlup contention. (Pet.'s Mot. to Amend at 2.) A liberal construction of the First Amended Petition reveals that this claim is encompassed in the prosecutorial misconduct claim alleging presentation of perjured testimony.
Finally, Petitioner seeks leave to amend to include a claim alleging that the District Attorney failed to adequately investigate the evidence which resulted in the exoneration of Lee, and thereby failed to develop evidence exonerating Petitioner. (Pet.'s Mot. to Amend at 2.) Such a claim is necessarily encompassed in the claims in the First Amended Petition alleging that Petitioner's federal due process rights were violated in connection to the failure to provide exculpatory evidence derived from the investigation leading to the vacating of Lee's conviction. The Court will liberally construe the First Amended Petition as presenting such a claim.
Because the claims Petitioner seeks to add are already fairly encompassed in the First Amended Petition, the Court DENIES Petitioner's Motion for Leave to Amend as moot.
III. Motion for Discovery
In his Motion for Discovery, Petitioner seeks an order directing Respondent to turn over any exculpatory evidence in its possession, including but not limited to, Jackson's file regarding his cooperation with the prosecution in this and other cases, and a report written by Investigating Officer Wade at the request of the District Attorney summarizing the effect of Jackson's statement on Wade's investigation into the shooting, and accounting for the wrongful conviction of Lee. (Doc. No. 41.) Petitioner contends this information will assist him in presenting his Brady/Giglio claims, in challenging the credibility of the victims' eyewitness testimony, and in establishing his factual innocence by demonstrating that Jackson was the driver of the car, that the Parish brothers, who were the victims, provided perjured testimony at trial when they identified ...