Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 He has filed a request for leave to conduct discovery.
Petitioner requests leave to conduct DNA testing on certain evidence. He also requests leave to serve on respondents a request to produce documents showing the chain of custody for this evidence. He wants DNA testing performed on parts of a shredded dishtowel, one of which was found at his home and the other inside a molotov cocktail found at the victim's residence.*fn2
He also wants information about how law enforcement officers collected and stored the dishtowel remnant that was collected from his home. Pet.'s Mot., at 1; see also Mot., Ex. B.
Upon a showing of "good cause," a party to a habeas action may conduct discovery. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899, 904 (1997). "Good cause" exists when the "'specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . .'" Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)) (federal court entertaining habeas petition may authorize the use of discovery procedures that are fashioned so as to elicit facts necessary to help the court resolve the parties' disputes). Here, petitioner seems to claim that comparing the results of testing on both scraps will prove his innocence.*fn3 Mot., at 1-2. However, these remnants were destroyed on August 13, 2003, "based on normal court procedure whereby counsel were first notified, and then according to a subsequent court order, the property was destroyed." Id., Ex. B, at 3. Thus, the evidence is no longer available for testing and it would be futile to order testing on items which no longer exist.*fn4 Accordingly, the motion is denied.
As the further testing of the evidence petitioner seeks cannot be had, discovery is of no benefit. Moreover, he already has evidence to prove his assertion of contamination or degradation. Therefore, petitioner has failed to show good cause for conducting discovery.
Accordingly, it is ORDERED that petitioner's June 26, 2009 motion for leave to conduct ...