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Dean Phillip Carter v. Michael Martel

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 25, 2011

DEAN PHILLIP CARTER,
PETITIONER,
v.
MICHAEL MARTEL, ACTING WARDEN OF
THE CALIFORNIA STATE PRISON AT SAN QUENTIN,
RESPONDENT.

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.

I. BACKGROUND

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.

III. DISCUSSION

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 agencies.*fn10

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 histories,*fn20 as well as any communcations between various agencies about the investigation and prosecution of Petitioner in the instant case.*fn21

Again, Petitioner asserts 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 53.) Petitioner's assertions in support of these document requests are speculative. For instance, Petitioner contends that the evidence against him regarding the rape of Barbara S. was "extremely weak" and notes that "[t]here is little, if any, indication in the record of how ...[the victim]... went from being a person who did not even consider Petitioner a suspect to then identifying him at trial as the man who raped her. Discovery may provide insight into this marked transformation." (Id.) He asserts that "discovery may prove the extent to which Petitioner was prejudiced by the joinder of the [Barbara S.] rape with the Cullins homicide," and "may show" that a reasonable investigation by counsel "could have uncovered evidence to further support his motion to sever." (Id. at 54.) However, there is no indication what evidence Petitioner reasonably expects to obtain from law enforcement, court files, or communication between these entities that will support the claims in the SAP. As stated above, the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106. Petitioner also intimates that "[d]iscovery may also show that the prosecutor purposely misrepresented at least two facts to the trial court," regarding the testimony of witness Polly Haisha and whether Petitioner possessed a key belonging to Barbara S., and "may show that the prosecutor misrepresented facts to secure the joinder" of the Barbara S. rape and Cullins homicide. (Id. at 54-55.) These suggestions are also speculative and do not warrant discovery.

In a related matter, Respondent contends that the argument regarding the testimony of Polly Haisha was barred by the California Supreme Court under the California contemporaneous objection rule. (Opp. at 14); see Carter, 36 Cal. 4th at 1264. Several circuit courts have held, and this Court agrees, that a petitioner cannot show good cause for discovery on a procedurally defaulted claim. See Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009); Williams v. Bagley, 38 F.3d 932, 975 (6th Cir. 2004). Accordingly, as this Court has not yet ruled on procedural default in the instant case, it would be premature to consider allowing discovery on a claim that may be procedurally defaulted.

In sum, the broad discovery sought is not reasonably calculated to the discovery of material pertinent to these claims. Instead, Petitioner has evidently requested each and every document potentially related to the investigation and prosecution of Petitioner for the crimes against Barbara S. For the reasons discussed here, in addition to those discussed in relation to document requests 1-51, Petitioner's request is overbroad, speculative, and fails to show good cause for discovery.

3. Document Requests 69-110

At Petitioner's guilt phase trial, the prosecution presented "other crimes" evidence regarding the murders of Susan Knoll and Jillette Mills in Los Angeles County. Carter, 36 Cal. 4th at 1226.

As with the requests relating to the Jennifer S. and Barbara S. assaults, Petitioner seeks leave to serve subpoenas duces tecum to command the production of any documents from various city, county and state agencies*fn22 relating to the burglary and murders of Susan Knoll and Jillette Mills and the rape of Mills, including but not limited to the complete police and prosecution case files for each case,*fn23 the coroner's file,*fn24 potential Brady and/or witness impeachment materials,*fn25 statements, interviews, and current location of any individual identified as a potential witness,*fn26 substance abuse and mental health records of the lay and expert witnesses,*fn27 lay and expert witness criminal histories,*fn28 prior complaints and/or discipline against certain expert and law enforcement witnesses,*fn29 any documents or other evidence discussing or relating to Ronald Tulio in connection with these crimes,*fn30 as well as any communcations between law enforcement and prosecutorial agencies about the investigation and prosecution of Petitioner in the instant case.*fn31

For the same reasons relating to Petitioner's discovery requests regarding the Jennifer S. and Barbara S. assaults, the instant request is overbroad and speculative. Here, Petitioner repeats the contention 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 80.) Yet again, 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, but Petitioner fails to demonstrate a likelihood that either situation occurred in his case. As stated previously, the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.

Here, Petitioner does indicate certain specfic items that he seeks in discovery, such as a police report written by Detective White regarding Officer Bloor's identification of Ronald Tulio as a man Bloor spoke to on the night of the Knoll/Mills homicides. (See Mot. at 80.) Petitioner insists "[t]hat report should be turned over to Petitioner's counsel," and asserts that it would be contained in the investigating or prosecuting agencies' files. (Id.) However, the Court's review of the record demonstrates that trial counsel was in possession of the police report during the trial proceedings. During an examination of Detective Cantrell outside the presence of the jury, lead counsel Bumer asked numerous questions regarding Bloor's photo identification of Tulio. Mr. Bumer introduced and quoted extensively from a police report in the possession of the defense, which he described as "a copy of a Culver Police Department report signed by Keith White." (RT 5965-68.) Later in the trial proceedings, Mr. Bumer again used the same report during an in-court examination of Officer Bloor. (See RT 6142-44.) As the trial record indicates that this particular report was in the possession of defense counsel, it appears likely that the report is contained in trial counsel's files. As such, Petitioner's counsel fails to explain why he seeks discovery from prosecutorial and law enforcement agencies for production of this document when it appears that these agencies are not in the sole possession of the report, and it would likely be more efficient to review trial counsels' files to obtain the report.

In general, as with the prior requests, Petitioner's assertions in support of the expansive document requests are largely speculative in nature. For instance, Petitioner asserts that "discovery may lead to evidence that could further undermine the questionable forensic evidence presented by" evidence technicians Dolan and Buchanan, criminalist Le, and medical examiner Dr. Sathyavagiswaran. (Mot. at 80.) In the SAP, Petitioner alleges that trial counsel failed to properly challenge the forensic testimony presented at trial, either through cross-examination and argument or by retaining and utilizing alternate forensic experts. (See SAP at ¶¶ 238-42.) Petitioner generally alleges that trial counsel failed to have wine glasses tested for blood and saliva, failed to challenge the evidence presented regarding the alleged sexual assault of Jillette Mills, and failed to adequately present evidence regarding a lack of physical evidence tying Petitioner to the crime scene.*fn32 He also asserts that the testimony regarding the location of Mills' white nightgown was contradictory, "thus suggesting that it could have been contaminated by evidence technicians, including, but not limited to, those technicians who testified at trial." (Mot. at 77.) Yet, Petitioner fails to indicate how discovery of records on prior arrests, detention or incarceration of the forensic witnesses (document requests 81-84 and 102-105), their mental health or substance abuse records (document requests 85 and 106), and prior complaints and/or discipline (document requests 90-92) are reasonably likely to assist him in developing his claims of ineffective assistance of counsel. These assertions, as currently constituted, are too broad and unsupported to evidence anything more than a fishing expedition.

Petitioner also requests any documentation regarding Ronald Tulio, the ex-boyfriend of Susan Knoll, asserting that "[d]iscovery may also lead to evidence that could cast considerable doubt on the prosecution's theory that Petitioner was responsible for the Knoll/Mills murders." (Id. at 80.) In Claim 2 of the SAP, Petitioner asserts that trial counsel failed to investigate and present evidence of third party culpability, contending that "[c]counsel was also in possession of police reports that suggested that Ronald Tulio (Ms. Knoll's former boyfriend) was involved in the Culver City murders. But counsel failed to investigate this evidence." (SAP at ¶ 252.) With respect to these allegations, it is unclear why Petitioner's counsel seeks to discover material that he may already possess via trial counsels' files.

Finally, as with the prior requests, Petitioner asserts that discovery "will also provide clarity to certain discrepancies that exist between the case-in-chief, as it was presented by the Los Angeles prosecution, and the case-in-chief, as it was presented by the San Diego prosecution." (Mot. at 80.) Petitioner contends that "[t]o the extent the San Diego prosecution's decision not to call James V. Gatlin and/or Danita Schaumann was based on impeachment evidence not disclosed to trial counsel, then Petitioner should be allowed to access that material now." (Id.) Petitioner fails to indicate the basis for his speculative assertion, and the Court is unpersuaded that Petitioner posits an appropriate reason for the requested discovery. It is apparent from the record that the Los Angeles case involved Petitioner's trial for the murders of Jillette Mills and Susan Knoll (and Bonnie Guthrie, discussed below) and these murders were introduced at the San Diego trial as other crimes evidence and in penalty phase aggravation. It is not unreasonable that the witness lists regarding each crime would differ between the two jurisdictions. At any rate, Petitioner fails to offer an indication that the difference in the witness lists is relevant to the claims in his federal petition, as the SAP does not contain any claim alleging that the prosecution withheld impeachment evidence regarding Gatlin or Schaumann, or that trial counsel was ineffective for failing to request impeachment evidence regarding these witnesses, neither of whom testified at Petitioner's San Diego trial.

In sum, the broad discovery sought is not reasonably calculated to lead to the discovery of material pertinent to these claims. Instead, Petitioner has evidently requested each and every document potentially related to the investigation and prosecution of himfor the murders of Susan Knoll and Jillette Mills in Los Angeles and the introduction of the murders at the San Diego trial. For the reasons discussed here, in addition to those discussed in relation to the prior groups of document requests, Petitioner's request is overbroad, speculative, and fails to show good cause for discovery.

4. Document Requests 111-147

At Petitioner's guilt phase trial, the prosecution presented "other crimes" evidence regarding the murder of Bonnie Guthrie in Los Angeles County. Carter, 36 Cal. 4th at 1227.

As with the requests discussed above, Petitioner seeks leave to serve subpoenas duces tecum to command the production of any documents from various city, county and state agencies*fn33 relating to the rape, burglary and murder of Bonnie Guthrie, including but not limited to the complete police and prosecution case files for the case,*fn34 the coroner's file,*fn35 potential Brady and/or witness impeachment materials,*fn36 statements, interviews, and current location of any individual identified as a potential witness,*fn37 substance abuse and mental health records of the lay and expert witnesses,*fn38 lay and expert witness criminal histories,*fn39 as well as any communcations between law enforcement and prosecutorial agencies about the investigation and prosecution of Petitioner in the instant case.*fn40

For the same reasons relating to Petitioner's previously discussed discovery requests, the instant request is overbroad and speculative. Petitioner again repeats his contention 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 101.) Again, 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, but Petitioner fails to demonstrate a likelihood that either situation occurred in his case. As stated previously, the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.

Petitioner asserts that "discovery may allow Petitioner to discover evidence that would have impeached or otherwise undermined the testimony of the prosecution's witnesses at guilt or penalty," stating that "[f]or instance, discovery may lead to evidence that could further undermine the questionable forensic evidence presented by Dr. Sathyavagiswaran, Marcus Kellman, and Lynn Herold." (Mot. at 100.) However, he fails to specifically indicate what questionable forensic evidence he seeks to undermine, nor does Petitioner indicate how any records on prior arrests, detention or incarceration of these witnesses (document requests 123-26 and 140-43) or the mental health or substance abuse records of these individuals (document requests 127 and 144)*fn41 will assist him in developing his claims of ineffective assistance of counsel.

Petitioner also generally asserts that "[d]iscovery may also lead to evidence that could cast even more doubt on the prosecution's theory that Petitioner was responsible for the Guthrie murder," noting that fingerprint and hairs found at the scene were not matched to Petitioner, and asserting that "[i]t is critical that Petitioner discover whether the prosecution tested that forensic evidence, and if so, what were the results of that testing." (Mot. at 100.) Petitioner maintains that "[w]ithout discovery, [he] lacks sufficient information to ensure that the prosecution complied with its duty to provide Petitioner with material exculpatory or impeachment evidence." (Id.) Yet the record clearly indicates that the physical evidence was tested and was not matched to Petitioner. (See e.g. RT 5022 (Detective Zolkowsky, questioned on whether latent prints were lifted from the Guthrie apartment, replied "None. None other than the victim's.")) In fact, Respondent does not contest Petitioner's assertion that seminal material contained in Guthrie's pantyhose and rape kit slides was not tested, and concedes that hair and fingerprints found at the crime scene were not matched to Petitioner. Moreover, the trial record contains exchanges between the trial court and counsel indicating that the prosecution turned over reports on the testing of forensic evidence regarding the Guthrie homicide. (See e.g. RT 5057-60, 5070-74.)

Petitioner asserts that "discovery may also explain the discrepancies in the Los Angeles and San Diego prosecutions' cases-in-chief," noting that Ronald Mancini, the victim's boyfriend, was called as a witness at the Los Angeles trial and not in San Diego, and that Dan Clark and Manny Glieberman were called as witnesses in the San Diego proceeding but were not called in Los Angeles. (Mot. at 101.) As stated above, it is apparent from the record that the Los Angeles case involved Petitioner's trial for the murders of Ms. Mills, Ms. Knoll, and Ms. Guthrie, and that these three murders were later introduced at the San Diego trial in a more limited manner - as "other crimes" evidence and in penalty phase aggravation. Thus, it is not unreasonable that the witness lists regarding each crime would differ between the two jurisdictions. Petitioner also fails to offer any indication that the difference in the witness lists is relevant to the claims in his federal petition, as the SAP does not contain any claim alleging a consitutional violation emanating from the differences in the witness lists between the two proceedings, and Petitioner fails to identify which claim in his SAP the discovery of such evidence would develop. As such, Petitioner fails to show good cause for the requested discovery.

In sum, the broad discovery sought is not reasonably calculated to the discovery of material pertinent to these claims. Instead, Petitioner has evidently requested each and every document potentially related to the investigation and prosecution of the murder of Bonnie Guthrie in Los Angeles and the introduction of the murder at the San Diego trial. For the reasons discussed here, in addition to those discussed in relation to the prior groups of document requests, Petitioner's request is overbroad, speculative, and fails to show good cause for discovery.

5. Document Requests 148-195

At Petitioner's guilt phase trial, the prosecution presented "other crimes" evidence regarding the robbery and murder of Tok Kim in Alameda County. Carter, 36 Cal. 4th at 1226.

As with the requests discussed above, Petitioner seeks leave to serve subpoenas duces tecum to command the production of any documents from various city, county and state agencies*fn42 relating to the robbery and murder of Tok Kim including but not limited to the complete police and prosecution case files for the case,*fn43 the coroner's file,*fn44 potential Brady and/or witness impeachment materials,*fn45 statements, interviews, and current location of any individual identified as a potential witness,*fn46 substance abuse and mental health records of several lay, police, and expert witnesses,*fn47 lay, police and and expert witness criminal histories,*fn48 prior complaints and/or discipline against the prosecuting attorney,*fn49 any documents or other evidence discussing or relating to Ray Blevins in connection with this crime,*fn50 as well as any communcations between law enforcement and prosecutorial agencies about the investigation and prosecution of Petitioner in the instant case.*fn51

For the same reasons relating to the previously discussed discovery requests, the instant request is overbroad and speculative. Here, Petitioner contends that "[t]o fully investigate the extent of trial counsel's ineffective assistance of counsel and the improper conduct of the investigating and prosecuting agencies involved in this case, Petitioner's counsel must examine all of the discovery that was or should have been provided to trial counsel." (Mot. at 127.) Again, 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, but Petitioner fails to demonstrate a likelihood that either situation occurred in his case. As stated previously, the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.

With respect to the crimes against Ms. Kim, Petitioner asserts that his discovery requests could not only support his claims of ineffective assistance of counsel (Claims 2 and 3 of the SAP), but could also support Claims 6 and 7, in which he contends that the prosecution committed misconduct and withheld material, exculpatory evidence from defense counsel. (SAP ¶¶ 289-426; 499-520.) Petitioner argues that the Los Angeles prosecution "failed to timely disclose a 1986 laboratory report from the Oakland Police Department, which eliminated Petitioner as a donor of semen found on a bedspread in Tok Kim's apartment." (Mot at 124.) He maintains that the "exculpatory evidence was available to the State in January 1986, yet only came into the possession of the defense on or about June 15, 1989, the first week of trial." (Id.) However, Petitioner appears to be referring to the first week of the Los

Angeles trial, as Petitioner's San Diego trial took place in 1991, over two years after the report was evidently provided to the defense. In the SAP, Petitioner argues that had the report excluding Petitioner as a source of the semen been timely disclosed to the Los Angeles defense counsel, counsel "would have been justified in obtaining a court order for a blood sample from Mr. Blevins's [sic] on the ground that he was a viable third-party suspect. And that evidence would have been presented in the San Diego case." (SAP at ¶ 515.) Notably, this statement presupposes that the trial court would have granted a request for a blood sample for Mr. Blevins, that there would have been a match to the sample on the Kim bedspread, and that the evidence would have been admissible at trial. Even if all three of these assumptions prove true, the allegations, as currently constituted, are wholly conclusory and do not establish good cause for the broad discovery sought by Petitioner.

As a related matter, Petitioner specifically asserts that document request 161, in which he seeks to discover any prior complaints or discipline against the prosecuting attorney in Los Angeles, "would establish whether the Los Angeles District Attorney had a history of Brady violations or other infractions." (Mot. at 125.) Respondent persuasively notes that "[i]t is not clear how the Los Angeles prosecutor's history of misconduct is in any way relevant to [Petitioner's] claims relating to the San Diego trial." (Opp. at 25.) Indeed, Petitioner fails to indicate how discovery regarding the Los Angeles prosecutors would support the claims alleged in the SAP regarding the performance of the San Diego trial defense counsel or the allegations of misconduct by the San Diego prosecutors, other than in the conclusory manner asserted above.

Petitioner also generally asserts that discovery "may lead to evidence that could further undermine the questionable forensic evidence presented by Drs. Rogers and Blackbourne" and "may also lead to evidence that could cast even more doubt on the prosecution's theory that Petitioner was responsible for the Kim death." (Mot. at 125.) At trial, Dr. Rogers testified that he performed the Kim autopsy, but could not conclusively determine the time of death or cause of death, yet stating that strangulation was a possible cause of death. (RT 5369-75.) Dr. Blackbourne testified that after reviewing the Kim autopsy photos and report, he concluded it was possible that her death was caused by asphyxiation from ligature strangulation. (RT 5541-51.) Yet, Petitioner fails to identify any evidence sought that is reasonably expected to undermine the expert testimony of these witnesses. There is no evidence to indicate that the production of arrests, detention or incarceration records of these witnesses (document requests 168-71 and 187-90), or the mental health or substance abuse records of these individuals (document requests 172 and 191)*fn52 even exist, much less that such records will assist Petitioner in developing his claims of ineffective assistance of counsel.

Petitioner also asserts that "[f]ingerprints and hairs found at the scene were not identified as belonging to Petitioner," and alleges that "[i]t is critical that [he] discover whether the prosecution tested that forensic evidence and, if so, what were the results of that testing and the discussion that followed." (Mot. at 125.) The record indicates that the fingerprint evidence, including the fact that Petitioner's prints were not found in Kim's home, was introduced at trial. (RT 4257-61.) Moreover, Respondent does not contest Petitioner's assertion that the hair or semen collected did not match Petitioner. (Opp. at 24.) It is also evident that Petitioner (or prior counsel) possesses at least some of the reports he currently seeks; Petitioner repeatedly asserts that the Los Angeles prosecutor failed to timely provide the report regarding the semen stain on Kim's bedspread, in doing so acknowledging that the report was turned over to the defense in 1989. Again, Petitioner fails to indicate any specific documents or evidence he seeks to discover, instead requesting every document relating to this case. Petitioner fails to provide good cause to justify such a broad discovery request.

Petitioner also requests material (document requests 174 and 193) that would allow him to "discover the full extent of the prosecution's investigation into Ray Blevins's role as the murderer in Tok Kim's case." (Mot. at 126.) However, as previously noted regarding the allegations concerning the testimony of Polly Haisha, the California Supreme Court imposed state procedural bars on several claims in the SAP concerning Mr. Blevins' involvement in the murder of Tok Kim. (See Supp. Lodgment No. 1; Lodgment No. 113.) Because this Court has not yet ruled on procedural default in this case, it would be premature to consider allowing discovery on claims that may prove to be procedurally barred from federal review. See Rucker, 563 F.3d at 771; Williams, 38 F.3d at 975.

Petitioner also asserts that "the materials requested will also help explain the discrepancies in the Los Angeles and San Diego prosecutions' case-in-chiefs," stating that:

It is unclear why the San Diego prosecution decided not to call Alfredo D. Lopez, Vinay Brasad, and In-grid Maleska-King, and not introduce the testimony of Ray Blevins. It is also unclear why the San Diego prosecution chose to call Jeffrey Eddis and Polly Haisha but the Los Angeles prosecution did not. (Mot. at 126-27.) This assertion is inaccurate. The state trial record clearly shows that Alfredo D. Lopez (see RT 4213-30) and In-grid Maleska-King (see RT 386-4400) testified at the San Diego trial and shows that the prosecution introduced the transcript of Ray Blevins' prior testimony (see RT 4271-81) at that proceeding. Aside from the inaccuracies, Petitioner fails to offer any indication that the difference in the witness lists is relevant to the claims in his federal petition. The SAP does not contain a claim alleging a consitutional violation arising from differences in the witnesses called at each proceeding, and Petitioner fails to allege which claim in his SAP this discovery would develop.

In sum, the broad discovery sought is not reasonably calculated to lead to the discovery of material pertinent to any claim in the SAP. Instead, Petitioner appears to have requested each and every document potentially related to the investigation of Petitioner for the murder of Tok Kim and the introduction of the murder at the San Diego trial. For the reasons discussed here, in addition to those discussed in relation to the prior groups of document requests, Petitioner's request is overbroad, speculative, and fails to show good cause for discovery.

6. Document Requests 196-235

Petitioner was charged with and convicted of the robbery and murder of Janette Cullins and the burglary of her residence. Carter, 36 Cal. 4th at 1220. After the penalty phase, the jury returned a verdict of death for the murder, and the trial court later imposed a death sentence. Id. at 1221.

As with the requests discussed above, Petitioner seeks leave to serve subpoenas duces tecum to command the production of any documents from various city, county and state agencies*fn53 relating to the robbery and murder of Janette Cullins, including but not limited to the complete police and prosecution case files for the case,*fn54 the coroner's file,*fn55 potential Brady and/or witness impeachment materials,*fn56 statements, interviews, and current location of any individual identified as a potential witness,*fn57

substance abuse and mental health records of the lay and expert witnesses,*fn58 lay and expert witness criminal histories,*fn59 prior complaints and/or discipline against the prosecuting attorneys and certain law enforcement witnesses,*fn60 personnel documents relating to prosecutor Pippin's prior role as colleague and/or supervisor to Judge Melinda Lasater,*fn61 as well as any communcations between law enforcement and prosecutorial agencies about the investigation and prosecution of Petitioner in the instant case.*fn62

As with prior requests, Petitioner asserts that in order "[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 counsel." (Mot. at 154.) Yet again, Petitioner's request is overbroad, the arguments advanced in support of the discovery request are speculative and conclusory, and the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.

For instance, Petitioner alleges that "discovery may lead to evidence that could further undermine the questionable forensic evidence presented at trial," stating that as "[f]ingerprints and hair found at the scene were not identified as belonging to Petitioner," and asserting that "[i]t is critical that Petitioner discover whether the prosecution tested that forensic evidence and, if so, what were the results of that testing and the discussion that followed." (Mot. at 153.) Petitioner maintains that "[w]ithout discovery, [he] lacks sufficient information to ensure that the prosecution complied with its duty to provide Petitioner with material exculpatory or impeachment evidence." (Id.) A review of the state record indicates that hair and fingerprint evidence was tested and was not matched to Petitioner. (See e.g. RT 6112-16 (Criminalist William Loznycky tetstified that fibers found inside the hand of Ms. Cullins were not a match to those from a sweater worn by Petitioner, and hairs from several blankets and sheets in her residence were not a match to hair samples taken from Petitioner).) In fact, Respondent does not contest Petitioner's assertions that (1) no tool was identified in support of the prosecution's argument that there was forced entry into Ms. Cullins' apartment, (2) there was no evidence that Ms. Cullins was sexually assaulted, and (3) while blood stains were found to be similar to Petitioner's blood, no significant wounds were found on Petitioner. (Opp. at 27.) The trial record also contains exchanges between the trial court and counsel indicating that the prosecution turned over reports on the testing of forensic evidence regarding the crimes against Ms. Cullins. (See e.g. RT 5397-5400, 6112.)

Petitioner also asserts that certain discovery requests concerning the Cullins case could provide support for Claim 6 in the SAP, in which he contends that the prosecution committed misconduct, and Claim 11, in which he contends that the trial judge was not impartial. Petitioner states that document request 219 would provide information on "whether the district attorneys had a history of engaging in such unlawful and prejudicial behavior," and that document request 220 would assist in establishing "whether the relationship between deputy district attorney Pippin and Judge Lasater was even more extensive and prejudicial to Petitioner than was already established at trial." (Mot. at 153.) Both requests appear to be nothing more than a fishing expedition. "Ordinarily, we presume that public officials have 'properly discharged their official duties.'" Bracy, 520 U.S. at 909, quoting United States v. Armstrong, 517 U.S. 456, 464 (1996). Petitioner's unsupported assertions to the contrary are speculative and do not establish good cause for discovery.

Petitioner also requests discovery regarding his claim that the prosecutor committed misconduct in insinuating that Petitioner abused his children, contending that there was no evidence before the trial court indicating abuse. Petitioner indicates it is his intention to determine whether the prosecutor was in possession of any evidence of abuse prior to making that insinuation, and maintains that he "has reason to believe that no such evidence will be in the prosecution's possession, thus supporting his claim" of misconduct. (Mot. at 154.) Respondent notes that "[f]or purposes of Carter's claim, it has been assumed that there are no documents in the prosecutor's file that Carter abused his children." (Opp. at 28.) Petitioner fails to demonstrate good cause to conduct a review of the prosecution's file in search of an absence of documentation.

Petitioner additionally asserts that it is "critical that [he] discover the full extent of prosecution's investigation into the lying in wait charges," asserting that there are "major discrepancies" in the evidence presented regarding wood chips collected from outside the victim's apartment, which were not preserved as evidence. (Mot. at 153.) He maintains that documentation regarding the wood chips would support Claim 9 of the SAP, in which he alleges that his "Constitutional Rights Were Violated When Secondary Evidence of Purported Forced Entry to the Cullins Apartment Was Admitted at His Trial, Where Police Failed to Preserve "Wood Chips" that Were Allegedly Observed By Officers at the Crime Scene." (Id. at 150.) Petitioner seeks an explanation as to "what happened to this critical evidence" and to "establish whether the officers who abrogated their duties had a history of such failures." (Id. at 153.) However, the direct appeal opinion clearly states that the lying in wait special circumstance was set aside. See Carter, 36 Cal. 4th at 1281. Moreover, Petitioner does not limit his request to records on prior complaints and/or discipline, but requests documentation on prior arrests, detention or incarceration of these witnesses as well as the mental health or substance abuse records of these individuals, speculating that this information exists and that it would support his federal claims.*fn63

These conclusory assertions do not establish good cause for the broad discovery sought. See Calderon (Nicolaus), 98 F.3d at 1106.

Petitioner also maintains that the requested discovery "may also explain the discrepancies in the cases-in-chiefs as they were presented by the Los Angeles and San Diego prosecutions," stating that "[n]otably, the Los Angeles prosecution did not present the testimony of individuals who testified about the 'wood chips.' With discovery, Petitioner will be able to determine if that strategic decision was made because the evidence was questionable." (Mot. at 154.) He highlights additional differences between the witnesses called at the two trial proceedings, stating that:

Thus, in contrast to the Los Angeles prosecution, the San Diego prosecution chose not to introduce the testimony of Judith Elaine Adams and Rodney Beverly, both of whom testified that Petitioner used Jannette Cullins's ATM card after her death. Also in contrast to the Los Angeles prosecution, the San Diego prosecution introduced the testimony of Charles Edward Byron and Bruce Allen Furnice, both of whom had appointments with Jannette Cullins which she never met; David Susi, who identified Petitioner as being in San Diego around the time of the murder; Fred Dreis and Dannis G. Nucholls, both of whom worked for the San Diego Police Department, and whom were called to establish that Petitioner committed the murder while lying in wait; and Sandra Homewood of the San Diego County District Attorney's Office, who compared a handwriting exemplar. (Id. at 144.) As a related matter, Petitioner's account of the proceedings is again inaccurate, as a review of the trial record shows that Mr. Beverly did in fact testify at the San Diego trial. (See RT 4904-13.)

Petitioner's assertion that the questionable quality of certain evidence resulted in differing prosecutorial decisions at the Los Angeles and San Diego trials is also speculative. In fact, there are any number of reasons why the witnesses and evidence may have differed between the two proceedings. For instance, the San Diego proceeding took place several years after the one in Los Angeles, and the investigation into the charged crimes likely continued to develop after the conclusion of the Los Angeles case. Additionally, and more likely, the witness lists and evidence differed because in Los Angeles, the death of Ms. Cullins by strangulation was offered as other crimes evidence, while in the San Diego proceeding, Petitioner was on trial for the robbery and murder of Ms. Cullins, and the burglary of her home.*fn64 See People v. Carter, 36 Cal. 4th 1114, 1132-33 (2005) (Los Angeles convictions and sentence); Carter, 36 Cal. 4th at 1220 (San Diego convictions and sentence). Moreover, for the reasons stated above in the discussion of the prior requests, Petitioner fails to offer any indication that the difference in the witness lists bears any relevance to the claims in his federal petition.

In sum, the broad requests at issue here are not reasonably calculated to the discovery of material pertinent to any claim in the SAP. Instead, Petitioner has evidently requested each and every document potentially related to the investigation and prosecution of Petitioner for the robbery and murder of Janette Cullins and the burglary of her home. For the reasons discussed, Petitioner's request is overbroad, speculative, and he fails to show good cause for discovery.

7. Document Requests 236-245

Petitioner requests documents pertaining to his April 17, 1984 arrest in Yavapai County, Arizona, and the subsequent search of the vehicle he was driving when arrested. The clothing Petitioner was wearing at the time of his arrest and contents of the vehicle were introduced into evidence at his guilt phase proceedings. See Carter, 36 Cal. 4th at 1233-34. Specifically, Petitioner seeks all documents (1) relating to his traffic stop, detention, arrest and evidence collection,*fn65 (2) relating to complaints or disciplinary action against Officer Dasper and Detectives McEwen and White,*fn66 and (3) incident reports, investigative reports and communcations between the Arizona Department of Public Safety and numerous agencies in California regarding Petitioner's arrest in Arizona.*fn67 (Mot. at 155-57.)

As with prior requests, Petitioner generally asserts that in order "[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 counsel." (Id. at 159.) Petitioner contends that he "can then compare that evidence to the discovery that was in trial counsel's files. Similarly, to fully investigate the extent of prosecutorial misconduct, Petitioner must discover whether the prosecutor knew that the car had been illegally searched." (Id.) Petitioner's request for all documents related to his detention, arrest, and the personnel involved is overbroad, not reasonably calculated to the discovery of materials relevant to Petitioner's claims, and based on speculative assertions.

Petitioner asserts that this discovery is relevant to Claims 2 (Ineffective Assistance of Counsel at the Guilt Phase), 3 (Ineffective Assistance of Counsel at the Penalty Phase), 6 (Prosecutorial Misconduct), and 15 (Denial of a Full and Fair Suppression Hearing) of the SAP. (Id. at 159.) Petitioner states that the requested discovery "will allow Petitioner to determine whether investigating agencies in this case should have obtained a warrant before searching the car," and "may also establish that the detectives and officers involved in his stop, arrest, and warrantless search and seizure had a history of committing these types of violations." (Id. at 161-62.) However, Petitioner fails to offer any "specific allegations" to rebut the Court's presumption that the public officials cited here "properly discharged their official duties." Bracy, 520 U.S. at 909. Petitioner fails to explain how discovery on all aspects of his arrest in Arizona are reasonably calculated to the production of material that would support his claims as detailed in the SAP. The overbroad discovery evidences a fishing expedition. Accordingly, Petitioner fails to show good cause for the requested discovery.

8. Document Requests 246-247

In Claim 1 of the SAP, Petitioner asserts that incidents of juror misconduct violated his right to a fair trial by an impartial jury, in part due to the jurors' viewing extrinsic evidence in the jury room, namely, a stocking concealed in another piece of evidence, discovered by the jury during deliberations in the jury room. (SAP at ¶¶ 112-228.) Petitioner requests documents relating to the jurors' viewing of extrinsic evidence in his case. (Mot. at 162-63.)

Petitioner requests all documentation, records, files and notes from the California Bureau of Investigation (document request 246) and the California Attorney General's Office (document request 247) relating to the jurors' viewing of extrinsic evidence. As both parties acknowledge, this claim was raised after the Attorney General's Office provided Petitioner with a letter regarding: 1) a conversation that prosecuting attorney Pippin had with a trial juror regarding an item the jury viewed during deliberations that was not marked as an exhibit, and 2) the investigation undertaken by the California Bureau of Investigation at the request of the Attorney General's Office, including interviews with trial prosecutors Pippin and Eichler. (See id. at 164; Opp. at 32.)

Petitioner asserts that he has "thus far been denied full access to the Attorney General Office's and California Bureau of Investigation and Intelligence's files relating to this case and their investigation of James Pippin and Robert Eichler," and requests discovery in order to obtain "all relevant information pertaining to the State's investigation of the serious impropriety that occurred in this case." (Mot. at 165.) Yet the record reflects, and the parties acknolwedge, that Petitioner is already in possession of materials regarding this investigation. (See id. at 163-64; Opp. at 32; Exs. 95, 99 to SAP.) Moreover, Respondent asserts that, in addition to the materials already provided, he "will be providing forthwith an audiotape of an interview with Deputy District Attorney Robert Eichler that was referenced in the materials already provided." (Opp. at 32.) While Petitioner speculates that there is additional relevant evidence that has not been provided to him, the Court finds nothing to indicate this is the situation. As stated previously, the Court will not allow Petitioner to conduct discovery in order to investigate "mere speculation." Calderon (Nicolaus), 98 F.3d at 1106.

9. Depositions 1-15

Petitioner seeks to depose fifteen jurors and alternate jurors, including the twelve jurors who rendered the guilt and penalty decisions in Petitioner's case, one juror who was removed by the Court, and two individuals who served as alternate jurors on his case. (Mot. at 165-66.) Petitioner asserts that these depositions are relevant to Claim 1 of the SAP, in which he alleges that jury selection and instances of juror misconduct violated his right to a fair trial by an impartial jury. (Id. at 166.)

Petitioner asserts that the depositions would allow him to investigate four incidents of juror misconduct, stating that:

(1) Depositions 1-15 would "allow Petitioner to demonstrate that Juror Cigainero was actually biased" when he sat as a member of Petitioner's trial jury, adding that "this jury was a particularly tight-knit group, thus making it likely that Juror Cigainero shared his thoughts and biases with the other jurors." (Id. at 168.)

(2) Depositions 1-15 will also allow Petitioner "to determine exactly what was discussed at the clandestine meeting between Mr. McAlpine and the other jurors at a location away from the courthouse," stating that "[b]ecause the trial court issued a 'no-contact' order, Petitioner has been unable to properly investigate this claim. (Id. at 168-69.)

(3) Depositions 1-15 will allow him to "determine the exact scope of the jurors' diminished sense of responsibility" resulting from their assumption that Petitioner had already been sentenced to death in Los Angeles County. (Id. at 169;167.)

(4) Depositions 1-13 will allow him to "determine which juror originally found the extrinsic evidence," "how many jurors viewed that evidence," and "how the jurors used the extrinsic evidence in reaching their verdicts." (Id. at 169.)

However, Petitioner's request to depose these fifteen individuals is overbroad and based on speculative assertions.

First, Petitioner's request to depose all members of the jury panel in support of his claim that Juror Cigainero was a biased juror is based on the speculative assertion that because the jury in this case was a particularly "tight-knit group," it was likely that Juror Cigainero shared his feelings on the death penalty with the other jurors. Petitioner offers no indication that any juror or alternate juror (other than Juror Cigainero, who Petitioner already interviewed in 2008 and 2009)*fn68 is likely to have discoverable information regarding this allegation, and as such, Petitioner fails to show good cause to depose the fifteen named individuals.

Regarding the second allegation of jury misconduct, Petitioner repeatedly refers to a "clandestine" meeting between former juror McAlpine and the other jurors "at a location away from the courthouse," and asserts that these individuals may have spoken to Mr. McAlpine about improper matters. (Id. at 169-69.) In fact, the "clandestine" meeting was a juror potluck, which was approved by the trial court and both parties, that former Juror McAlpine attended only after being contacted and invited by another juror, and prior to which the court admonished the jurors and Mr. McAlpine to refrain from discussing anything related to the case. (RT 7608-10; 8016-19; 8033-36.) Petitioner's assertion that deposing the jurors would reveal improper discussions the jurors had at the potluck is conclusory and speculative. Petitioner fails to show good cause to warrant deposing fifteen individuals on this speculative basis.

Petitioner's third allegation is based upon statements made by Juror Ridge, who was interviewed by counsel for Petitioner and Respondent in 2008 and 2009. In the 2008 interview, Mr. Ridge stated that articles after the trial regarding Petitioner's Los Angeles death sentence "confirmed everything that we kind of thought we knew, but we didn't discuss it." (Ex. 94 to SAP at 1084.) In the same interview, Mr. Ridge was also specifically asked "Did you know that Mr. Carter had already been convicted in a separate prosecution in Los Angeles county at the time of the San Diego trial?" to which he answered "No," stated that he found out "[s]ometime afterwards," and added "I don't remember exactly when, but it wasn't known during the deliberations." (Id. at 1083-84.) Based on these statements, Petitioner requests leave to depose all fifteen jurors, which includes the alternates and the removed juror, in order to discover the "exact scope" of the jury's diminished sense of responsbility. However, Mr. Ridge's statments are equivocal at best, and Petitioner's conclusory assertions based on these statements are insufficient to show good cause for discovery.

Petitioner's final allegation of juror misconduct concerns extrinsic evidence that was evidently concealed in a tear in Petitioner's jacket, which was in evidence at trial, and which was discovered by an unidentified juror during deliberations. To date, three trial jurors have already been questioned at length regarding this incident. Petitioner presently requests leave to depose thirteen individuals on this incident - the twelve deliberating jurors and removed juror McAlpine.

Several reasons inform the Court's decision denying the requested discovery. First, Petitioner fails to provide a reason for re-interviewing Jurors Ridge, Hughes and Cigainero, as these individuals have already been subject to extensive interviews on the record regarding this case, and regarding this incident in particular. None of these three individuals have indicated that the additional evidence played any role in deliberations. As such, Petitioner's assertion that discovery will allow him to determine "how the jurors used the extrinsic evidence in reaching their verdicts" appears to be purely speculative and conclusory. Second, removed Juror McAlpine appears wholly unconnected to this allegation of error. The record indicates that jury deliberations began on May 21, 1991, the same day that Juror McAlpine was excused from service. (CT 2651.) However, Juror McAlpine was excused at 11:54 a.m. and the record reflects that the exhibits were placed in the deliberation room by 1:36 p.m. (Id.) Moreover, the trial court issued concluding jury instructions and placed Juror Pinto on the jury in place of departed Juror McAlpine at 2:02 p.m., and the jury began deliberations at 2:25 p.m. (CT 2651-52.) Therefore, there is no indication that Juror McAlpine was ever in the jury deliberation room at the same time as the exhibits, and as he was replaced prior to the commencement of deliberations, there is no evidence that he would have been privy to the discovery of extrinsic evidence as indicated in the materials submitted by Petitioner.

Generally, with respect to the requested juror depositions, the parties agree that a protective order remains in place, prohibiting Petitioner from contacting the trial jurors without the consent of the state trial court. On several prior occasions, Petitioner petitioned this Court for permission to interview the trial jurors (see doc. nos. 18, 45), and the Court declined to issue such an order, recommending that Petitioner raise the issue with the trial court. (See Doc. Nos. 38, 47.) Petitioner thereafter sought the trial court's consent and as a result, both parties to the instant action and the trial judge conducted interviews with three jurors in November 2008 and October 2009, at which the jurors were questioned about the matters discussed here. Petitioner has already received discovery on this matter, and fails to demonstrate good cause for additional inquiry. At any rate, Petitioner fails to offer the Court a "reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief" on this claim. Bracy, 520 U.S. at 908-09. Accordingly, discovery is not warranted.

10. Depositions 16-17

Petitioner seeks to depose James Pippin and Robert Eichler, who prosecuted his case as San Diego County Deputy District Attorneys. (Mot. at 170.) Petitioner contends that the depositions could offer support for several claims alleged in the SAP: Claim 1 (Juror Misconduct- Viewing of Extrinsic Evidence), Claim 6 (Prosecutorial Misconduct), Claim 7 (Failure to Disclose Exculpatory Evidence and Allow Inspection of Evidence) and Claim 11 (Impartiality of the Trial Judge).

Regarding Claim 1, Petitioner asserts that he seeks discovery to discern "among other thing, whether Robert Eichler also knew about this juror's post-trial conversation with James Pippin and why it took James Pippin so long to disclose this improper instance of juror misconduct." (Id. at 171.) Yet as stated above in the discussion of document requests 246-47 (see section II.8, supra), the record reflects, and the parties acknowledge, that Petitioner is already in possession of reports regarding this investigation. (See id. at 163-64; Opp. at 32; Exs. 95, 99 to SAP.) Respondent also states an intention to provide Petitioner with an audiotape of the interview with Mr. Eichler. (See Opp. at 32.) This audiotape would, in all likelihood, reveal whether Mr. Eichler possessed any knowledge of the conversation. With respect to the timing of Mr. Pippin's disclosure of the conversation, Petitioner fails to state what relevance this has on the juror misconduct claim, and fails to demonstrate that there is additional information that the trial prosecutors could reasonably provide in support of this claim.

Regarding Claim 6, Petitioner reiterates the contentions advanced in the SAP, which includes allegedly improper actions, motions, questions to witnesses, arguments to the jury, and false or misleading statements to the trial court regarding witnesses and evidence, and generally asserts that discovery will "allow Petitioner to gather additional support for this claim." (Id. at 171-72.) This vague assertion fails to provide good cause for the requested discovery. For Claim 7, Petitioner repeats the allegation that because the prosecution failed to timely disclose evidence of testing that eliminated him as a source of semen found on Tok Kim's bedspread, he was unable to properly investigate a theory of third party liability. (Id. at 173.) Here too, Petitioner fails to indicate how discovery would aid in the development of this claim.

In Claim 11, Petitioner reiterates that prosecutor Pippin had a "uniquely close relationship" with Judge Melinda Lasater, asserts that the defense motion to recuse Judge Lasater should have been granted, and states that "[d]eposing James Pippin will allow Petitioner to further develop this claim." (Id. at 173.) Again, Petitioner fails to provide good cause for discovery based only on the vague and conclusory assertion that deposing Mr. Pippin will aid in developing his habeas claim.

11. Deposition 18

Petitioner seeks to depose the Honorable Melinda Lasater, the trial judge in his case. (Mot. at 173.) Petitioner asserts that the deposition is relevant to Claim 11 in his SAP, in which he alleges that the trial judge who presided over his case was not impartial. (Id.)

The state record reflects that prior to trial, Petitioner's defense counsel filed a motion to disqualify Judge Lasater from presiding over his case, alleging that prosecutor James Pippin had known Judge Lasater for a long time, had supervised her for a short time when both were employed at the San Diego District Attorney's Office, and had participated in Pippin's daughter's wedding. The defense also argued that Judge Lasater had a preconceived opinion on the constitutionality of the death penalty. (CT 247.) Another San Diego Superior Court judge heard and denied the motion to disqualify Judge Lasater from Petitioner's case. (RT 50-53.) In support of this deposition request, Petitioner reiterates that prosecutor Pippin supervised Judge Lasater at the District Attorney's office, and repeats several instances of social contact between Judge Lasater and prosecutor Pippin or his family members, all of which is currently contained in the state court record. Petitioner maintains that "[a]llowing this deposition will allow Petitioner to further develop this claim." (Id. at 174.) However, Petitioner provides no support, other than his own speculation, that this deposition would result in relevant evidence in support of his claim. As such, Petitioner fails to demonstrate good cause for discovery.

III. CONCLUSION

Petitioner fails to demonstrate good cause for the overbroad discovery sought which, if granted, would likely amount to a complete reinvestigation of the two charged crimes and five other crimes introduced into evidence at Petitioner's San Diego trial.

Petitioner requests that "if this Court denies Petitioner's motion to conduct discovery but grants the motion for evidentiary hearing, Petitioner requests leave to file a motion for discovery narrowly tailored to those claims on which an evidentiary hearing is being held." (Mot. at 10.) This request appears reasonable.

Accordingly, Petitioner's Motion for Discovery is DENIED without prejudice. IT IS SO ORDERED.


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