Petitioner is a state prisoner seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On December 11, 2008, the court granted petitioner's motion to reschedule the evidentiary hearing and rescheduled the evidentiary hearing to commence at 9:30 a.m. on April 20, 2009. The court also continued respondent's deadline to file a pre-hearing brief to January 23, 2009 and continued petitioner's deadline to file a response thereto to February 13, 2009.
On January 14, 2009, respondent filed an evidentiary hearing brief and a motion for leave to conduct discovery. Respondent scheduled the motion for discovery to be heard on February 18, 2009. Petitioner has not filed an opposition to respondent's motion.
On February 9, 2009, petitioner filed a motion for an interlocutory injunction and a motion for an extension of time to file a responsive brief to respondent's evidentiary hearing brief. Petitioner requests that his motions also be heard on February 18, 2009.
On January 14, 2009, respondent filed a motion requesting leave to issue (1) subpoenas to the custodians of records at the Solano County District Attorney's Office and the Vallejo Police Department, for the production of audio and video interview tapes of statements petitioner and other witnesses provided to the police in connection with petitioner's case, and (2) subpoenas to George Bawart and Ronald Becker, the officers who conducted interviews of petitioner and other witnesses in connection with petitioner's case, for appearance at the evidentiary hearing. Mot. for Disc. at 3, Attachs. Respondent also requests that this court "command petitioner to submit to being deposed." Mot. for Disc. at 3. As noted above, petitioner has not filed an opposition or statement of non-opposition to respondent's motion, as required by Local Rule 78-230(m). Such a failure "may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions." L.R. 78-230(m).
Habeas litigants may "invoke the processes 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." Rule 6(a), Rules Governing Section 2254 Proceedings. Good cause exists "if discovery is indispensable to a fair, rounded, development of the material facts" at issue. Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997) (quoting Toney v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996)).
When a request for discovery is granted in a habeas case, a party "may utilize the processes of discovery available under the Federal Rules of Civil Procedure (rules 26-37)."*fn1
Advisory Committee Notes on Rule 6, Rules Governing Section 2254 Proceedings. According to the Advisory Committee Notes, Rule 6(c) "specifically recognizes the right of the respondent to take the deposition of the petitioner." Id. (stating that "[a]lthough the petitioner could not be called to testify against his will in a criminal trial, it is felt the nature of the habeas proceeding, along with the safeguards accorded by the Fifth Amendment and the presence of counsel, justify this provision."); see also Bean v. Calderon, 166 F.R.D. 452, 455-56 (E.D. Cal. Feb. 15, 1996).
Respondent argues good cause supports his request to subpoena the custodians of records at the Solano County District Attorney's Office and the Vallejo Police Department, for the production of audio and video interview tapes of statements petitioner and other witnesses provided to the police in connection with petitioner's case, because those tapes "provide the best evidence of the statements petitioner and other witnesses provided to [the] police." Mot. for Disc. at 3. Respondent asserts that he "informally requested" those items from the agencies and although both agencies provided respondent "with some materials," they were "unable to locate certain items of physical evidence, specifically the originals or copies of some tape recorded interviews." Id. at 2. Respondent contends good cause supports his request to subpoena Detectives Bawart and Becker because they "were the officers who conducted all interviews" and "petitioner made at least one statement constituting an admission off tape." Id. at 3. Finally, respondent argues good cause supports his request to depose petitioner because petitioner claims in his habeas petition that he is innocent of first degree murder, but "his statements to police contradict such evidence." Id.
At issue in the evidentiary hearing is whether petitioner has "a valid freestanding claim of actual innocence." Ninth Cir. Remand Order, 2007 WL 731353, at *1 (Mar. 12, 2007). Specifically at issue is whether the newly-discovered testimony of Jeffrey Taggart and Charles Austin -- that the person petitioner allegedly hired to commit murder was not responsible for the murder that occurred -- is truthful (therefore making petitioner innocent of first degree murder, the crime with which he was charged). Id. The interview tapes, as well as the testimony of Bawart and Becker, are relevant to those issues. Therefore, respondent's motion for leave to issue subpoenas to the custodians of records at the Solano County District Attorney's Office and the Vallejo Police Department, and subpoenas to George Bawart and Ronald Becker, is granted.
Additionally, respondent contends that petitioner's habeas claims of actual innocence contradict earlier statements petitioner made to the police. Such alleged contradictory statements would be relevant to petitioner's actual innocence claim. Therefore, respondent may depose petitioner about his assertions of actual innocence in his habeas petition and/or about any allegedly contradictory statements he earlier made to the police.*fn2
The hearing on respondent's motion, currently scheduled for February 18, 2009, is vacated.
On February 9, 2009, petitioner filed a motion requesting "30 days to file his responsive brief, to include March 5, 2009." Pet'r Mot. at 5. Petitioner contends additional time is needed to file his brief because he has been denied access to the law library. Because petitioner's request would not prejudice respondent, petitioner's request for an extension of time is granted. Petitioner's responsive pre-hearing brief shall be filed on or before March 9, 2009. Accordingly, no hearing is necessary on the motion.
III. Motion for Injunction/Sanctions
Petitioner's February 9 motion also requests "that this court order petitioner transferred to another institution, pending final disposition of this case . . ., that sanctions be placed on respondent (Warden) . . ., and the law librarian at Corcoran State Prison be held to have committed misconduct." Pet'r Mot. at 5. Petitioner alleges that on December 17, 2008, he was denied access to the law library; that on February 2, 2009, he was denied contact visitations with his former attorneys; and that on February 13, 2009, he was denied possession of discovery given to him by representatives of his former attorneys. Id. at 3-4. ...