The opinion of the court was delivered by: Hon. Roger T.Benitez United States District Judge
DEATH PENALTY CASE ORDER DENYING PETITIONER'S MOTION FOR DISCOVERY [Doc. No. 118]
On January 13, 2011, Petitioner filed a Motion for Discovery, requesting leave to serve subpoenas duces tecum for 247 document requests from over twenty-five agencies and to depose eighteen individuals, asserting that the discovery will provide support for his federal habeas claims. Respondent has filed an Opposition to the Motion and Petitioner has filed a Reply. Based on a review of the materials and pleadings, the Court finds this issue appropriate for disposition without oral argument.
Upon consideration of the issues raised in the filings, and for the reasons outlined below, the Court DENIES Petitioner's Motion for Discovery.
Petitioner was convicted in the San Diego County Superior Court on May 22, 1991, of one count of first degree murder, two counts of robbery, one count of burglary, one count of forcible rape, and one count of forcible oral copulation in the murder of Janette Cullins and the attack on Barbara S. People v. Carter, 36 Cal. 4th 1215, 1220 (2005). The jury also found true the special circumstance allegations that the murder was committed while lying in wait, that the murder was committed while Petitioner was engaged in the commission or attempted commission of a robbery, and that the murder was committed while Petitioner was engaged in the commission or attempted commission of a burglary. (RT 6980.) At the conclusion of the penalty phase, the jury returned a verdict of death and the court entered judgment accordingly. Carter, 36 Cal. 4th at 1221. The conviction and sentence was upheld on appeal to the California Supreme Court, with the exception of the lying in wait special circumstance, which was set aside. Id. at 1281. The California Supreme Court denied Petitioner's state habeas petition on June 28, 2006, and amended the order denying the petition on September 13, 2006.
Petitioner initiated his federal habeas action on June 29, 2006, by filing a motion for appointment of counsel pursuant to Local Civil Rule HC.3(d)(1). The Court filed an order appointing counsel on September 22, 2006. On December 6, 2006, Petitioner filed a Protective Petition, and on June 20, 2007, filed a mixed Petition for Writ of Habeas Corpus with this Court, asserting seventeen (17) claims for relief, with eight (8) claims comprised of numerous sub-claims. On July 6, 2007, Petitioner and Respondent filed a Joint Stipulation and Motion to Stay Federal Proceedings pending the resolution of a state exhaustion petition, and on July 13, 2007, the Court granted the Motion.
On June 22, 2007, Petitioner filed a second state habeas petition containing the unexhausted claims. Petitioner also filed a third state habeas petition on February 16, 2010, based on newly discovered evidence. The second and third state habeas petitions were both denied by the California Supreme Court without an evidentiary hearing on June 17, 2010.
On July 12, 2010, Petitioner filed a Second Amended Petition ["SAP"]. On October 18, 2010, Respondent filed an Answer, and on December 8, 2010, Petitioner filed a Traverse.
The instant motion for discovery was filed on January 13, 2011.*fn1 On February 1, 2011, Respondent filed an Opposition, and on February 16, 2011, Petitioner filed a Reply.
Petitioner's motion contains 247 ennumerated document requests, seeking information from "over 25 state agencies, spread across 4 different counties in 2 different states, relating to 5 murders and 2 rapes." (Reply at 2.) Petitioner also moves to depose eighteen individuals, including the trial jurors and alternate jurors, the trial prosecutors and the trial judge.
Respondent objects to the motion in its entirety, asserting that Petitioner fails to establish good cause for the requested documents and depositions. (Opp. at 6.) Respondent also generally asserts that the requests are "overbroad, speculative, and evidences no more than a fishing expedition." (Id. at 8.)
A. Discovery in Habeas Proceedings - Generally
A habeas petitioner is not entitled to discovery "as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, Rule 6 of the Rules Governing Section 2254 Cases reads as follows:
(a) Leave of Court Required. 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. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.
(b) Requesting Discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents.
(c) Deposition Expenses. If the respondent is granted leave to take a deposition, the judge may require the respondent to pay the travel expenses, subsistence expenses, and fees of the petitioner's attorney to attend the deposition.
To determine whether discovery is appropriate, a court must consider the petitioner's 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). Even if a court grants discovery, "the scope and extent of such discovery is a matter confided to the discretion of the District Court." Bracy, 520U.S. at 909. Courts should not permit a petitioner to "use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. United States Dist. Ct. for the Northern Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996); see also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999), quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970) ("Habeas corpus is not a general form of relief for those who seek to explore their case in search of its existence.")
Moreover, the United States Supreme Court recently held that, for claims previously decided on the merits by a state court, the Court's "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011). The Supreme Court also noted that "[a]lthough state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so." Id. at 1401. Thus, pursuant to Pinholster, it may not serve the interests of judicial economy to consider allowing discovery prior to conducting a review under § 2254(d). In any event, the Court need not address the potential implications of Pinholster on this issue because, as discussed below, Petitioner's request is overbroad and lacks a showing of good cause.
B. Petitioner's Discovery Requests
Petitioner seeks the production of documents and leave to depose witnesses regarding his claims of ineffective assistance of counsel, prosecutorial misconduct, Brady violations, jury misconduct, allegations of police failure to preserve evidence, alleged partiality of the trial judge, and denial of a full and fair suppression hearing. (See SAP Claims 1, 2, 3, 6, 7, 9, 11, 15.)
Petitioner generally states that he seeks discovery for two reasons: (1) "to compare discovery that trial counsel obtained at the time of trial with that material that trial counsel should have uncovered," asserting that "[a]ny discrepancy between what was in trial counsel's possession provides further support for Petitioner's allegation that trial counsel was ineffective at both the guilt and penalty phases of trial,"*fn2 and (2) "to ensure that the State fulfilled its duty of providing counsel with material evidence, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct 1194, 10 L. Ed. 2d 215 (1963), and that the State fully complied with state discovery laws."*fn3 (Mot. at 12.) Petitioner states that once he receives the requested discovery, "he will be able to fully ascertain if there were additional instances of state misconduct and ineffective assistance of counsel." (Reply at 4.)
For the reasons detailed in the discussion below, it is the Court's conclusion that Petitioner's motion for discovery, as currently constituted, is a fishing expedition. Petitioner requests documentation from every agency even remotely involved in the investigation or prosecution of his case, and in many instances clearly duplicating prior efforts of trial counsel. (See footnotes 2, 3.) The extremely wide scope of discovery sought indicates to the Court that Petitioner's request is aimed at reinvestigating every aspect of his prosecution, including extensive requests regarding the background of every witness, potential witness, and other individuals with any connection to his case, rather than to develop "specific allegations before the court." Bracy, 520 U.S. at 904. As such, Petitioner fails to demonstrate good cause to warrant what would undoubtedly amount to a complete reinvestigation of the two charged crimes and five "other crimes" introduced into evidence at Petitioner's San Diego trial.
1. Document Requests 1-51
At Petitioner's guilt phase trial, the prosecution presented "other crimes" evidence regarding the rape of Jennifer S. in Ventura County. Carter, 36 Cal. 4th at 1226. The prosecution also introduced the rape conviction as aggravating evidence during the penalty phase. Id. at 1236.
Petitioner seeks leave to serve subpoenas duces tecum to command the
production of any
documents from various city, county and state agencies*fn4
relating to the rape of Jennifer S., including requests for
the entire police and prosecution case files,*fn5
potential Brady and/or witness impeachment materials,*fn6
statements, interviews, and current location of any
individual identified as a potential witness,*fn7
criminal histories of the witnesses,*fn8 the substance
abuse and mental health records of the witnesses,*fn9
and documentation on communication between the various
Petitioner contends that "[t]o fully investigate the extent of trial counsel's ineffective assistance of counsel, Petitioner's counsel must examine all of the discovery that was or should have been provided to trial counsel." (Mot. at 40.) This assertion presumes that either the prosecution failed to comply with Brady, or that trial counsel failed to request all they should have requested from the relevant agencies. However, Petitioner fails to demonstrate a likelihood that either situation occurred in his case, as he fails to identify any discovery that may have been withheld and fails to indicate any specific items that trial counsel should have, but did not, obtain. Instead, Petitioner generally asserts that "[t]o the extent Petitioner is unable to specifically ennumerate a document, file, record, and/or note that is in the investigating and prosecuting agencies' files, it is only because of the exact thing Petitioner complains about in his Second Amended Petition: Trial counsel's ineffective assistance and improper governmental conduct has deprived him of the opportunity to compile a full and complete record." (Mot. at 14-15.)
The request is overbroad, and Petitioner fails to demonstrate good cause for any discovery in this category, much less the extremely expansive scope of discovery he requests. As an initial matter, Petitioner fails to indicate any specific documents he suspects are missing. He instead requests each and every document potentially related to the rape of Jennifer S. in order to "fully investigate" trial counsel's allegedly ineffective assistance. (See Mot. at 40.) There is no indication that Petitioner has been unable to obtain the listed documents and materials through other sources, such as through prior counsel.*fn11 Instead, the instant request evidences an intention to gather material that would support additional claims of ineffective assistance or Brady violations. To the extent this is the case, the request is unrelated to an existing claim, and thus speculative. The Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.
Petitioner also specifically requests any favorable, impeachmment or
exculpatory evidence from Ventura County (document request 3), Los
Angeles County (document request 20) and San Diego County (document
request 37) regarding the Jennifer S. case despite the fact that
Petitioner's federal petition does not include a Brady claim which
alleges violations regarding any aspect of the Jennifer
S. rape. As such, these requests*fn12 appears to be
calculated to obtain potential documents or information
that could support a new and separate Brady claim.*fn13
Accordingly, as the requested materials do not relate to
"specific allegations before the court," the request is speculative
and Petitioner fails to show good cause for his request.
Petitioner additionally asserts that this discovery "will also allow post-conviction counsel to fully assess the significance of the discrepancies between the Ventura trial and the San Diego trial." (Mot. at 40.) The Court is unpersuaded that this is an appropriate reason for the requested discovery. It is apparent from the record that the Ventura case involved Petitioner's trial for the rape of Jennifer S., and the crime was introduced at the San Diego trial as other crimes evidence and in penalty phase aggravation. It is not unreasonable that the witness lists would differ between the two jurisdictions. Yet Petitioner asserts that "[a]t least to the extent they [the witness lists] differed because the respective prosecutors chose not to rely on certain witnesses because of impeachment issues with those witnesses, trial [sic] counsel should be allowed to discover that evidence."*fn14 (Mot. at 41.) This is a purely speculative assertion, and utterly fails to establish good cause for the requested discovery.
As a related matter, the Court agrees with Respondent's contention that "[n]ot one of the claims Carter asserts this discovery is necessary to establish even discusses the Jennifer S. rape." (Opp. at 10.) Petitioner contends that document requests 1-51 are relevant to Claims 2 and 3 of the SAP, but the only mention of the Jennifer S. rape is contained in Petitioner's allegation that trial counsel's opening and closing statements were deficient for failing to "offer any meaningful argument that did not 'fit the theory' of the government as to charges and allegations in the Mills, Knoll, Guthrie, Kim, [Jennifer S.], [Barbara S.] and Cullins cases." (SAP at ¶ 278.) A review of the arguments posed in Claims 2 and 3 reveals that the crime against Jennifer S. is not discussed in a substantive manner in either claim. Accordingly, document requests 1-51 are not reasonably calculated to produce relevant evidence in support of the cited claims as alleged in the SAP, and Petitioner fails to show good cause for the requested discovery.
2. Document Requests 52-68
In addition to the robbery and murder of Janette Cullins, Petitioner was charged with and convicted of robbery, burglary, forcible rape and forcible oral copulation in the attack against Barbara S. in San Diego. Carter, 36 Cal. 4th at 1221. The trial court imposed a sentence of 21 years 8 months for the crimes against Barbara S., to be served consecutively to the death sentence imposed for the murder of Janette Cullins. Id.
As with the requests relating to the crime against Jennifer S., Petitioner seeks leave to serve subpoenas duces tecum to command the production of any documents from various city, county and state agencies*fn15 relating to the attack against Barbara S., including but not limited to the complete police and prosecution case files,*fn16 potential Brady and/or witness impeachment materials,*fn17 statements, interviews, and current location of any individual identified as a potential witness,*fn18 substance abuse and mental health records of the witnesses,*fn19 witness criminal ...