The opinion of the court was delivered by: George H. WU United States District Judge
ORDER(1) GRANTING MOTION TO EXPAND THE RECORD;(2) DENYING MOTION TO COMPEL DISCOVERY; AND(3) ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all the records and files herein, the report and recommendation of the United States Magistrate Judge, and petitioner's objections to the report and recommendation.
The arguments asserted in petitioner's objections have been sufficiently addressed in the magistrate judge's report and recommendation. Petitioner suggests that the magistrate judge failed to address petitioner's contention that his trial counsel acted deficiently by advising petitioner to plead guilty to a crime petitioner insists he did not commit. However, in addressing petitioner's numerous challenges to his counsel's performance, the magistrate judge stated in unequivocal terms that a trial counsel's informed strategic decision is "virtually unchallengeable." Strickland v. Washington, 466 U.S. 668, 691 (1984) ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). Advising a client to plead guilty is the type of strategic decision that results from an analysis of the weight of the evidence against the client. And in the face of the evidence against petitioner, counsel's advice to petitioner to plead guilty was inherently reasonable. In any event, petitioner disregarded his counsel's advice on this matter; thus, petitioner could show no prejudice even if he could show deficient performance, which he cannot. The court, therefore, concurs with and adopts the findings, conclusions, and recommendations of the magistrate judge.
The court has also received several motions by petitioner. First, petitioner seeks discovery relating to an incident that took place in Las Vegas in November 2005 in order to establish that a witness who testified against him at his California state court trial was not credible. To the extent petitioner seeks discovery into operative evidence or facts not part of the record in state court and not presented to the California Supreme Court either on direct or collateral review, his reliance on such evidence in the present proceeding would render the petition unexhausted. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (a claim has been fairly presented to the state's highest court if the petitioner has described both the operative facts and the federal legal theory on which the claim is based).
Moreover, a federal habeas petitioner is not entitled to discovery as a matter of course. See Bracy v. Gramley, 520 U.S. 899 (1997); see also Rule 6 of the Rules Governing § 2254 cases (a party 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 [or her] discretion and for good cause shown grants leave to do so, but not otherwise."). The availability of discovery in a federal habeas proceeding is committed to the sound discretion of the district court. See McDaniel v. U.S. Dist. Court for the Dist. of Nevada, 127 F.3d 886, 888 (9th Cir. 1997). The magistrate judge already addressed petitioner's argument regarding the alleged 2005 incident in the report and recommendation. The discovery petitioner seeks would not alter the resulting analysis. The court, therefore, finds the requested discovery is not warranted and, accordingly, the motion for discovery is denied.*fn1
Second, petitioner seeks to expand the record in this matter to include all documents and exhibits filed in two of petitioner's prior federal matters, case numbers EDCV 09-882-GW(CT) and EDCV 08-1922-GW(CT). Although nothing suggests that any of the pleadings in either of those cases are relevant to the issues presented in his petition, the court will nevertheless take judicial notice of all pleadings filed in connection with those case numbers.
IT IS ORDERED that (1) petitioner's motion to expand the record is granted to the extent that petitioner asks the court to take judicial notice of the pleadings filed in case numbers EDCV 09-1922-GW (CT) and EDCV 08-822-GW (CT); (2) petitioner's motion to compel discovery is denied; and (3) judgment be entered denying the petition for writ of habeas corpus and dismissing this action with prejudice.
1) Add "a" as the first word at 2:1.
2) "of" at 6:21/22 should be "on".
3) Change "innocense" to "innocence" at 8:19/20, 9:11 and 9:14.
4) Delete "his" at 11:24.
5) Change "ask to court explain to" at 18:16 to "ask the ...