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concluding that discovery requests must be considered “in light of” the (e) requirements for demonstrating entitlement to an evidentiary hearing
Summary of this case from Murphy v. FergusonOpinion
Civil No. 02-10-JE.
June 10, 2004
ORDER
Petitioner is currently serving a life sentence with a 30-year minimum term for murdering his wife, Judith Moen, and his mother-in-law, Hazel Chatfield. Currently before the court is petitioner's Motion for Leave to Conduct Discovery (#39). He seeks to develop facts favorable to his claim that his trial attorneys were constitutionally ineffective for failing to object to the impanelment of certain jurors who were biased against him. For the reasons which follow, the Motion is denied.
DISCUSSION
I. Standards.Habeas corpus petitioners, unlike usual civil litigants, are not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 903-905 (1997). Habeas corpus petitioners may conduct discovery to the extent that "the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a) of the Rules Governing Section 2254 Cases. Good cause is shown where a petitioner demonstrates, through specific allegations, that there is reason to believe that he may be entitled to relief. Bracy, 520 U.S. at 908-909 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
Discovery under Rule 6 must be considered in light of the provisions of 28 U.S.C. § 2254(e)(2) which limit the scope of federal habeas corpus review to the state court record, except certain specified circumstances as follows:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Under § 2254(e)(2), "failed to develop" means a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). In Williams, the Supreme Court explained:
Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. "Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.Id at 437 (citation omitted).
II. Analysis.
Petitioner faults his trial attorneys for failing to object to the impanelment of certain jurors who were allegedly biased against him. He alleges that he provided his attorneys "with information about relationships between himself, his wife, Judith Moen, and juror Eric Bakke. In brief, [petitioner] submits that his wife and Mr. Bakke had a sexual relationship." Memo in Support (#40), p. 4. He claims that despite providing his attorneys with this information, they failed to object to the impanelment of Bakke.
Petitioner also requests permission to interview the entire jury to determine: (1) whether additional jurors knew petitioner or his wife; and (2) what impact Mr. Bakke's alleged bias may have had on the other members of the jury. In light of the strict requirement on habeas litigants to diligently pursue the factual development of their claims during their state court proceedings, the court turns to the record in this case to discern what efforts, if any, petitioner made toward this end.
Following the conclusion of his direct appeal proceedings, petitioner filed for collateral relief in Oregon's post-conviction courts. During those proceedings, he was afforded the opportunity to develop and present his evidence. Petitioner has not advised the court of the steps he took to discover the evidence he seeks here, nor has he alleged that he could not have obtained the denied discovery during his state court proceedings. Indeed, the court is unable to locate any evidence in the record that petitioner sought an order from the post-conviction trial court allowing him to subpoena jurors from his criminal trial.
The parties agree that Oregon Formal Ethics Opinion 1995-143 and Local Rules 48.3 and 48.4 prevent petitioner from contacting the jurors without a court order.
Given petitioner's lack of diligence in pursuing the factual development of his ineffective assistance of counsel claim during his post-conviction proceedings, the court is unwilling to allow petitioner to use this federal habeas corpus proceeding as an alternative forum for factual development. Accordingly, the Motion is denied.
CONCLUSION
Petitioner's Motion for Leave to Conduct Discovery (#39) is DENIED. Petitioner shall file his supporting memorandum on or before August 9, 2004. This action shall be taken Under Advisement on August 24, 2004.
IT IS SO ORDERED.