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Gregory Downs, Iv v. Domingo Uribe

February 24, 2012

GREGORY DOWNS, IV,
PETITIONER, :
v.
DOMINGO URIBE, JR, WARDEN, ET AL.,
RESPONDENTS



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

(1) DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION TO CORRECT THE DOCKET; AND (3) DISMISSING PETITION

ORDER

WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has submitted a "Rule 27 Petition" which has been docketed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis. (Doc. Nos. 1-2.) Petitioner seeks to take the deposition of two Deputy California Attorneys General in order to determine why his conviction has not been overturned, and to determine why no court has been informed that exculpatory material within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), has been withheld from him. (Pet. at 3.) Petitioner has also filed a Motion to Correct the Docket in which he reiterates that he is bringing a "Rule 27 Petition" and not a habeas petition, and requests the docket be corrected. (Doc. No. 3.)

For the following reasons, it is clear that Petitioner has not satisfied the requirements for initiating a Rule 27 action, and that the instant action is properly construed as a federal habeas petition. Nevertheless, it is clear that the instant Petition is subject to dismissal irrespective of its form of action. Thus, the Court denies Petitioner's motion to correct the docket, denies his motion to proceed in forma pauperis as moot, and dismisses the Petition without leave to amend but without prejudice to Petitioner to present his claims in a habeas petition after he has secured permission from the Ninth Circuit Court of Appeals to file a second or successive petition.

Federal Rule of Civil Procedure 27 provides that:

A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest;

(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;

(D) the names or a description of the person whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

Fed.R.Civ.P. 27(a)(1) (West 2011).

Petitioner is seeking to take the depositions of two Deputy California Attorneys General, but has not indicated that either resides in the Southern District of California, and has not indicated why he needs to perpetuate their testimony. Moreover, Petitioner has not identified the subject matter of his expected action, and has not explained why he is unable to bring an action at this time. In any case, Rule 27 is designed for prospective defendants who wish to preserve testimony, not plaintiffs. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961) ("Abuse of the rule by potential plaintiffs, who might try to use it as a means of discovery to enable ...


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