Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richardson v. W.L. Montgomery

United States District Court, N.D. California

May 4, 2017

JERRY ALAN RICHARDSON, Petitioner,
v.
W. L. MONTGOMERY, Respondent.

          ORDER DENYING MOTION FOR DISCOVERY; ORDER DENYING MOTION TO AMEND PETITION DKT. NOS. 3, 19

          WILLIAM H. ORRICK United States District Judge.

         INTRODUCTION

         Petitioner 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.

         BACKGROUND

         Richardson 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.)

         As 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.)

         The police investigation led to Richardson's friend John Reed, in whose apartment the police found items taken from the Isuzu.[1] (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.” (Id.)

         A 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.)

         At trial, the prosecutor contended Reed was the lookout while petitioner broke into and drove the Isuzu. (Id. at 3.)

         DISCUSSION

         Unlike 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.

         Good 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 Cir. 1996).

         Richardson 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.

         The 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.