The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
After the July 8, 2010 hearing on petitioner's motion for discovery, the court issued an order permitting further briefing regarding three issues: (1) whether petitioner's subpoenas seeking prosecution witness Bonnie Hogue's mental health records and those seeking records regarding Ms. Hogue and petitioner's co-defendant Mr. Reese could be more narrowly tailored; (2) whether respondent will assert procedural default bars to any claims upon which petitioner seeks discovery; and (3) if the court finds good cause for the discovery of Ms. Hogue's mental health records, whether Ms. Hogue is entitled to notice, and if so how that notice will be given. (Dkt. No. 170 at 1-2.) Respondent filed a statement regarding the first two issues and petitioner filed a response. In addition, petitioner filed a statement regarding the third issue of notice to Ms. Hogue. After considering the parties' original briefs on petitioner's May 25, 2010 motion for discovery (dkt. nos. 159, 166, 167), the parties' briefs in the prior discovery proceedings before Judge Nowinski (dkt. nos. 76, 77, 78, 115, 116, 117), the parties' briefs in response to the court's July 12, 2010 order (dkt. nos. 172, 173, 176), the argument of counsel at the hearing, and good cause appearing, the court finds and orders as follows.
Petitioner seeks leave to conduct discovery in three areas. First, he seeks leave to issue subpoenas to a number of mental health treatment centers, hospitals, and jail facilities in California and Nevada to discover information about prosecution witness Bonnie Hogue's mental health problems. Second, he seeks leave to issue subpoenas to law enforcement agencies seeking information that Ms. Hogue and petitioner's co-defendant Richard Reese had a pre-existing relationship. Third, he seeks information to determine whether further benefits were provided to Ms. Hogue in exchange for testifying.
Rule 6(a) of the Rules Governing § 2254 Cases states that "[a] party shall be entitled to 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, but not otherwise." Good cause exists "where 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 v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Where good cause exists, "it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Harris, 394 U.S. at 300.
In addition to arguing good cause under Rule 6, petitioner argues that the discovery sought was essentially pre-approved by Magistrate Judge Nowinski in 2006. While petitioner's third state habeas petition was pending before the California Supreme Court, Judge Nowinski considered several discovery requests by petitioner. In 2005, he ordered disclosure of various law enforcement records, including the Sacramento County Sheriff's Department case file, to petitioner's counsel. Apr. 19, 2005 Order (Dkt. No. 73.) Later, based on the declaration of Ms. Hogue's sister Susan Riley asserting that Hogue admitted lying at petitioner's trial, Judge Nowinski ordered in-court depositions of Hogue and Riley. Nov. 23, 2005 Order (Dkt. No. 83) at 2. Among other things, Ms. Hogue testified at her deposition that she had a history of mental health problems, which included hallucinations, suicide attempts and hospitalizations, starting when she was a teenager and continuing after petitioner's trial in 1990. (Dkt. Nos. 104 at 61-89; 118 at 34-48, 53-58.) After the depositions, petitioner renewed prior requests for discovery of information regarding Ms. Hogue's relationship to Mr. Reese, and information regarding the benefits Ms. Hogue received as a result of testifying. In addition, petitioner requested discovery of Ms. Hogue's mental health records. (Dkt. Nos. 115, 117.) Respondent opposed those requests. (Dkt. No. 116.)
Judge Nowinski denied all requests. However, he stated that he would grant the first two requests if the California Supreme Court denied petitioner further factual development without a reasoned basis for doing so:
Comity counsels this court involve itself no further in developing the factual record at this point. However, if relief is denied in the California Supreme Court without a convincing reasoned decision explaining why further factual development is not required, this court will authorize the subpoenas for medical records and for law enforcement records implicating both Reese and Starr, to look for any clue how to resolve what respondent recognizes are irreconcilable accounts and also to assess, if Starr's testimony about her mental health is true, whether a decision to impose the death penalty should be based upon the testimony of such a person.
Feb. 8, 2006 Order (Dkt. No. 120) at 6-7. In an April 28, 2010 order, the California Supreme Court denied petitioner's third state habeas petition without explaining why further factual development was unnecessary. In re James D. Majors, No. S117112 (Dkt. No. 159-1).
While this court respects Judge Nowinski's prior analysis, it is not necessarily bound by Judge Nowinski's prior ruling. Below, the court reviews each of petitioner's requests to determine whether petitioner has established good cause for the discovery sought.
I. Subpoenas Regarding Ms. Hogue's*fn1 Mental Health History According to petitioner, Ms. Hogue was a key prosecution witness at trial.
Petitioner describes her testimony as follows:
Bonnie Hogue (aka Starr) was a local prostitute who told police, and testified at trial, that she met petitioner and Robert Reese for the first time at a motel in south Sacramento shortly after the homicides, spent the night with them, witnessed their division of cash and jewelry, and spent the next day with petitioner, helping him to ship contraband back to Phoenix before seeing him off at the airport. Ms. Hogue was the sole source of evidence that Reese and Majors were together after the homicides, and was the sole witness regarding petitioner's conduct in the day or so following the crimes.
(Dkt. No. 159 at 4.) Petitioner seeks to issue twelve subpoenas to obtain information about Ms. Hogue's mental health problems. (Dkt. No. 159-2, items 1-12.) Petitioner argues Ms. Hogue's mental problems are relevant to her credibility, which is central to several claims in the amended petition: (1) claim 23 that the prosecutor committed misconduct by relying on testimony he should have known was false and that he failed to disclose impeaching material; (2) claim 2 that counsel was ineffective for failing to adequately impeach Hogue; (3) claim 20 that petitioner's conviction and sentence are unreliable ...