United States District Court, N.D. California
ORDER DENYING MOTION FOR DISCOVERY; ORDER DENYING
MOTION TO AMEND PETITION DKT. NOS. 3, 19
WILLIAM H. ORRICK United States District Judge.
Jerry Alan Richardson moves in this habeas action for
discovery of (1) a forensic report from a Toyota Corolla
involved in the underlying kidnapping crime for which he was
convicted, (2) internal data from his cell phone, and (3)
police reports allegedly not given to his lawyer. (Mot. for
Discovery (“MFD”), Dkt. No. 3 at 2.) He contends
that these materials will show that the prosecutor committed
misconduct and that trial counsel rendered ineffective
assistance. However, the first two categories do not exist
and he lacks specific, objective and concrete factual
evidence tending to support the existence of and need for any
of the discovery. His motion for discovery is DENIED.
was convicted on charges arising from the kidnapping of
Anthony Patino. At roughly 3:30am on July 18, 2011 in San
Jose, Patino parked his sister's boyfriend's Toyota
Corolla. (Dkt. No. 15, Ex. H (State Appellate Opinion) at 5.)
As he walked to his house, he was confronted by a masked
gunman, who forced Patino back into the car and directed him
to drive. (Id.) Another car, Patino's
stepfather's Isuzu Trooper, which had been parked nearby,
followed. (Id.) Eventually, the gunman ordered
Patino to stop and step out of the car. (Id.) He
then robbed Patino of his belongings, blindfolded him, drove
him to a shed and locked him inside. (Id. at 6.)
daylight broke, the gunman returned. He put Patino, still
blindfolded, in the backseat of the Corolla and then drove.
(Id.) During the drive, Patino heard the gunman talk
to someone by telephone or to someone who was in the car.
(Id. at 6-7.) After the car stopped, Patino heard a
woman ask, “Who's that?” (Id.) The
gunman said, “Some kid. I had to take him.”
(Id.) She reprimanded the gunman as
“stupid” for taking Patino. (Id.) The
gunman told her to follow him. (Id.) When the car
stopped again, Patino was dropped off and instructed to count
to one hundred before removing the blindfold. (Id.)
When he took it off, he saw that he was in a Lowe's
parking lot, which he thought was not far from the shed.
(Id.) The Corolla was there with the keys in it.
Patino drove to his house and called the police, who soon
located the Isuzu. (Id.)
police investigation led to Richardson's friend John
Reed, in whose apartment the police found items taken from
the Isuzu. (Id. at 3.) Tools for stealing
cars, including keys shaped to fit a Toyota's locks, were
also found there. (Opp. at 2.) Reed's cell phone records
show that there were four calls to or from Richardson's
phone to Reed's on July 19th, the day after the
kidnapping. (Id.) There were also 21 calls or texts
between the two phones on July 20th. (Id.) One July
20th text message from Richardson was sent at 10:30am, that
is, after the police found the Isuzu. (Id.) It read,
“Cops got trooper. Where you at? j. phone.”
search of the Isuzu yielded a DNA sample to which Richardson
was a “possible contributor” and a fingerprint
that matched one of Richardson's that was on file with
the police. (Id.)
trial, the prosecutor contended Reed was the lookout while
petitioner broke into and drove the Isuzu.
(Id. at 3.)
an ordinary civil litigant, a habeas petitioner must obtain
court permission before he may conduct any discovery.
Discovery may be taken only to the extent that the court, in
the exercise of its discretion and for good cause shown,
allows it. See Rule 6(a) of the Rules Governing
Section 2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254.
cause for discovery under Rule 6(a) is shown “where
specific allegations before the court show reason to believe
that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to
relief.” Bracy v. Gramley, 520 U.S. 899,
908-09 (1997) (citation omitted). The Supreme Court approved
of Bracy's request because his claims “were framed
in specific terms and were supported by objective, concrete
factual evidence tending to support his theory.”
Murphy v. Johnson, 205 F.3d 809, 813-814 (5th Cir.
2000). “Specific, ” “objective, ” and
“concrete” are the watchwords here.
“[C]ourts should not allow prisoners to use federal
discovery for fishing expeditions to investigate mere
speculation.” Calderon v. U.S. Dist. Court for the
Northern Dist. of California, 98 F.3d 1102, 1106 (9th
seeks a forensic report from the Toyota Corolla, internal
data from his cell phone and some police reports. (MFD at 2.)
He contends that such materials will show that the prosecutor
committed misconduct and that trial counsel rendered
ineffective assistance. (Id.) To determine whether
Richardson is entitled to discovery, the Court must consider
the nature of the habeas claim for which discovery is sought,
the sort of discovery requested, the purported need for the
discovery, and the value the discovery might have in the
federal habeas proceedings.
prosecution must disclose material evidence “favorable
to an accused.” Brady v. Maryland, 373 U.S.
83, 87 (1963). In order to establish a Brady
violation, petitioner must show that: (1) the evidence at
issue was favorable to the accused, either because it is
exculpatory or impeaching; (2) the evidence had been
suppressed by the prosecution, ...