IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 23, 2010
WILLIAM MAY ATHERTON, PETITIONER,
MIKE KNOWLES, RESPONDENT.
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner challenges his Placer County Superior Court conviction of failing to register as a sex offender. Dckt. No. 7 at 2 (Amended Petition). Specifically, petitioner claims he received ineffective assistance of counsel because his attorney failed to introduce evidence that petitioner had registered as a sex offender in Kentucky, which petitioner contends, could have convinced the judge to strike petitioner's prior convictions. Id. at 6.
Petitioner has informed the court that he is trying to locate the "missing Registration form from Kentucky," in order to support his argument that even though his registration was late, he did in fact register and was not hiding from authorities. Dckt. No. 36. Petitioner has requested permission to conduct discovery, so that he can obtain the missing registration form "and any other document that may [be] relevant to this case," from his trial attorney, David Brooks. Dckt. Nos. 29, 37. As respondent points out, however, petitioner "has acknowledged that his trial file has been destroyed and that Mr. Brooks does not have any documents relating to his case . . . ." See Dckt. No. 38 at 2-3. See also Dckt. No. 35 (petitioner's "Notice of Discovery") at 1, Ex. A (explaining that petitioner's case file had been shredded).
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure, and may limit the extent of discovery." Rule 6(a), Rules Governing § 2254 Cases. Whether a petitioner has established "good cause" for discovery requires the court to determine the essential elements of the petitioner's substantive claim and evaluate whether "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 904, 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
Based on the above, the court finds that petitioner has not shown good cause to engage in discovery by issuing a third-party subpoenas duces tecum to Brooks. As petitioner has conceded, Brooks has nothing to produce. If, at a later date, the court should determine that a copy of the Kentucky registration form would assist in deciding whether petitioner is entitled to relief, the court will direct the parties to brief the issue of whether petitioner should be permitted to engage in discovery by issuing a third-party subpoenas duces tecum to an individual or entity other than Brooks, i.e., the Kentucky State Police Sex Offender Registry. See Dckt. No. 39, Ex. B. Petitioner may also continue with his efforts, independent of court assistance, to obtain the requested document(s), and if successful, may lodge relevant documents with the court.
Petitioner has also requested that the court appoint counsel. Dckt. No. 39. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.
Accordingly, it hereby is ORDERED that:
1. Petitioner's September 9, 2009 motion for discovery is denied;
2. Petitioner's December 23, 2009 motion for appointment of counsel is denied.; and
3. The amended petition for a writ of habeas corpus, filed June 5, 2008, stands submitted for decision.
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