Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus challenging his Sacramento County convictions for sex offenses against minors. In his habeas petition, he raises the following claims: (1) several of his convictions violate the ex post facto clause; (2) he was denied the effective assistance of trial counsel; (3) he was denied the effective assistance of appellate counsel; (4) he was sentenced to consecutive terms based on factors not found by the jury; (5) several convictions violate the statute of limitations; (6) there was insufficient evidence of duress in connection with several of the convictions; (7) the prosecutor misled the jury on the statute of limitations issue; (8) petitioner was not allowed to cross-examine the primary prosecution witness on false statements made under oath; (9) there was insufficient evidence that one of the victims was under the age of fourteen at the time of the offenses; (10) DNA evidence was falsified by the testing technician and created by use of pirated software; and (11) there were additional ex post facto violations. He has filed a motion for discovery of a variety of materials relating to the DNA analysis and the arrest warrant in his case.
Respondent argues that petitioner is barred from factual development in federal court because he failed to develop the record in state court. Opp'n (Docket No. 20) at 2. He also argues that even if the court accepts all of petitioner's claims about DNA irregularities, there was nevertheless sufficient evidence to support the convictions. Id. at 3. He further argues that the warrant is not needed because both parties assumed at trial the limitations period commenced in June 2003. Id. at 2.
A. Discovery In Habeas Cases
Under 28 U.S.C. § 2254(e)(2), a federal court shall not hold an evidentiary hearing "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings. . . ." Respondent argues that this provision blocks petitioner's discovery request because the state court did not issue an order to show cause and so did not permit him to pursue discovery at the state level.
Neither the Supreme Court nor the Ninth Circuit has decided whether section 2254(e)(2) applies to a habeas petitioner's discovery requests. The Third Circuit has found that section 2254(e)(2) does not apply to evidentiary hearings exploring the reasons for procedural default:
AEDPA's use of the word "claim" uniformly comports with [petitioner's] more limited definition of a "cause of action" or "means by or through which a claimant obtains . . . enjoyment of a privilege." For example, the term "claim" is used in § 2254(d), also added by AEDPA in the following sentence. "An application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings . . . ." 28 U.S.C. § 2254(d). By stating that "an application for a writ of habeas corpus" can be granted "with respect to any claim," the sentence clearly implies that Congress used the term "claim" as a substantive request for the writ of habeas corpus. This is the same definition of the term "claim" used in the pleading requirements of Federal Rule of Civil Procedure 8(a) . . .
Cristin v. Brennan, 281 F.3d 404, 418 (3d Cir. 2002) (some internal quotes & citations omitted). The Cristin court's reading of the word "claim" fits with the tenor of the entire subsection, for the showing a petitioner must make to secure a hearing despite his lack of diligence below includes a requirement that he demonstrate that the facts underlying the claim would have caused the trier of fact to find him not guilty. Requiring such a showing in connection with a discovery request makes little sense.
As one district court has commented in rejecting another warden's argument similar to that made by respondent here:
[I]t is premature to address respondent's argument because, at this point, petitioner has not sought (and may never seek) to present new evidence in support of his claims. At this point, he has asked only for leave to conduct discovery that may lead to new evidence. The Court will address any arguments regarding whether § 2254(e)(2) precludes petitioner from introducing new evidence in support of his claims when and if he seeks to present that new evidence.
Hill v. Mitchell, 2007 WL 2874597, *3 (S.D. Ohio).
It bears noting that the Supreme Court and the Ninth Circuit have found the restrictions of section 2254(e)(2) applicable to requests to expand the record under Rule 7 of the habeas rules. In Holland v. Jackson, 542 U.S. 649, 653 (2004), the Supreme Court found that section 2254(e)(2) applies "when a prisoner seeks relief based on new evidence without an evidentiary hearing." See also Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). In Holland and Cooper-Smith, however, the petitioners asked the courts to consider evidence supporting their claims for relief that they had not presented to the state courts and that they failed to pursue with the diligence required by Williams v. Taylor, 529 U.S. 420 (2000). In this case, as in Hill, petitioner has not yet asked this court to consider any evidence he seeks in support of any of his claims for habeas relief.
Finally, even if section 2254(e)(2) applies to discovery proceedings, it does not bar petitioner in this case, at least to the portion of his pending request the court ultimately grants. A petitioner will be charged with a "failure to develop" the facts if "there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The petitioner must have "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Id. at 435. "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in the state court in the manner prescribed by state law." Id. at 437.
In this case, petitioner filed a state habeas petition raising his statute of limitations and DNA challenges and asked for an evidentiary hearing. Lodg. Doc. 11 at consecutive pages 1 (request in caption), 12. Respondent argues there was no diligent pursuit, however, because petitioner's habeas ...