Opinion
No. CIV S-06-1657 MCE DAD P.
February 29, 2008
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 14, 2006, this court ordered respondents to file a response to the petition. On November 13, 2006, respondents filed a timely answer. On December 27, 2006, petitioner filed a traverse. This case is now submitted for decision and in due course, the court will issue its findings and recommendations. Several outstanding motions are pending before the court.
First, petitioner has filed a motion to compel respondents to file additional transcripts that were not listed on their "Notice of Lodging Documents in Paper." Respondents have filed an opposition to the motion arguing that the transcripts are not relevant to the resolution of the petition. Nonetheless, in an abundance of caution, on May 31, 2007, respondents lodged the state court transcripts petitioner had requested. Accordingly, petitioner's motion to compel will be denied as moot.
Second, petitioner has filed a motion to compel respondents to obtain the DNA profile that was generated from the evidence found under the victim's fingernails and submit it to the national DNA database for comparison against all persons in that database. In this regard, petitioner contends that he is factually innocent. Respondents have filed an opposition to the motion arguing that petitioner has failed to show good cause in support of his request because he has not established that such evidence will establish his innocence. Specifically, respondents note that at petitioner's trial, an expert testified that a profile DNA analysis excluded petitioner as a possible donor of the DNA found in or on the fingernail clippings of the victim. The jury heard this evidence and still found petitioner guilty of the charged murder and rape. Respondents contend that although DNA evidence did not link petitioner to the crimes, there was testimony from both an eyewitness and from jailhouse informants that petitioner had committed the charged offense. In reply, petitioner argues that even the prosecutor in his case intimated that the victim must have fought to stop her attacker from strangling her. Petitioner contends that the case against him was built upon lies and fabricated evidence. Accordingly, he requests that the court order that the DNA comparison be conducted.
The parties in a habeas proceeding are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir.),cert. denied, 540 U.S. 1013 (2003). Rather, "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his [or her] discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a), Rules Governing § 2254 Cases. See also Bracy, 520 U.S. at 904. Good cause 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, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). See also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2004). In order to obtain discovery a petitioner need not demonstrate that he will prevail on the claim underlying the discovery request. See Bracy, 520 U.S. at 909; Pham, 400 F.3d at 743. Finally, a request for discovery "must also include any proposed interrogatories and requests for admission, and must specify any requested documents." Rule 6(b). Federal courts have "the power to `fashion appropriate modes of procedure,' including discovery, to dispose of habeas petitions `as law and justice require[.]'" Id. at 904 (citations omitted) (quoting Harris, 394 U.S. at 299-300). See also Bittaker, 331 F.3d at 728.
Here, the court does not find good cause for the issuance of the discovery order petitioner seeks. At most, a DNA comparison would show that petitioner was not the donor of DNA found under the victim's fingernails. However, according to respondents, that fact was already established at petitioner's trial and the record before this court presumably reflects as much. Accordingly, petitioner's motion to compel DNA analysis will be denied.
Third, petitioner has filed a motion to compel respondents to notify the Federal Bureau of Investigation (F.B.I.) that strong evidence exists that the victim in his case was kidnaped prior to her death. Petitioner contends that the victim was last seen alive on May 29, 2000. He notes that a Home Depot construction worker found the victim's body seven days later. Petitioner contends that a pathologist testified at trial that the victim was murdered anywhere from one and one-half days to five days before her body was discovered. Petitioner maintains that the victim's earliest possible time of death would therefore be on the evening of May 31, 2000. Accordingly, petitioner contends that there is strong evidence that the victim was kidnaped and held for at least two full days before she was murdered.
Respondents have not filed an opposition or statement of non-opposition to this motion to compel brought by petitioner.
Petitioner has cited no authority in support of this motion. In addition, the court does not find good cause to enlist the F.B.I. in an investigation into the claims presented by petitioner in these habeas proceedings. To the extent that petitioner is able to develop facts and evidence in support of his theory, it may be presented to the court and may be considered when the claims of the pending petition are addressed on their merits. To the extent this is request for F.B.I. involvement is a motion to conduct discovery it will be denied.
Finally, petitioner has filed an emergency request for an immediate ruling on his habeas petition in which he argues that he filed his habeas petition in 2006, he is factually innocent of the crimes for which he was convicted, and he and his family are suffering as a result of this situation. Petitioner is advised that, from 2004 through 2007 more than 3,500 actions were filed by California prisoners with the United States District Court for the Eastern District of California seeking habeas relief. The court is well aware of its backlog of submitted cases and is working diligently in that regard. Petitioner is informed that as long as he keeps the court informed of any change of address, no further action on his part is necessary.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's May 4, 2007 motion to compel is denied;
2. Petitioner's May 29, 2007 motion to compel is denied;
3. Petitioner's June 19, 2007 motion to compel is denied; and
4. Petitioner's August 3, 2007 request for an immediate ruling is denied.