Opinion
NO. 3-03-CV-0525-M
May 21, 2003
MEMORANDUM ORDER
Petitioner Mohammad Rankouhi Momennia, by and through his counsel of record, has filed a motion for leave to conduct limited discovery in this habeas case brought under 28 U.S.C. § 2241. By this motion, petitioner seeks leave to depose Michael S. Puskas, an FBI agent in Oklahoma City, and an FBI representative with the most knowledge of: (1) any contacts between the FBI and petitioner after September 11, 2001; (2) any questioning or interrogation of petitioner by the FBI or other law enforcement agency after September 11, 2001; (3) any threats made to petitioner to enforce his deportation or to pursue charges against his friends if he refused to cooperate with the FBI, INS, or other law enforcement agency; (4) any discussions with petitioner regarding his immigration case or offers of assistance to obtain his cooperation; and (5) the circumstances of petitioner's arrest and detention. Respondents oppose the motion.
Rule 6(a) of the federal habeas rules provides, in relevant part:
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 discretion and for good cause shown grants leave to do so, but not otherwise . . .
RULES GOVERNING SECTION 2254 CASES, Rule 6(a). Good cause exists "where specific allegations before the court show reasons 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, 117 S.Ct. 1793, 1799, 138 L.Ed.2d 97 (1997), quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969). See also East v. Scott, 55 F.3d 1001-02 (5th Cir. 1995).
Although Rule 6(a), by its terms, applies only to habeas cases brought under section 2254, a court may apply the rule to section 2241 proceedings. See RULES GOVERNING SECTION 2254 CASES, Rule 1(b); Gaitan-Campanioni v. Thornburgh, 777 F. Supp. 1355, 1356 (E.D. Tex. 1991) (applying Rule 6(a) to section 2241 case brought by federal immigration detainees).
Petitioner challenges his removal to Iran under the Fifth Amendment to the United States Constitution. Succinctly stated, petitioner contends that the FBI asked him to infiltrate the Shiite Muslim community in Oklahoma, which is comprised primarily of Iranians and Iraqis, for the purpose of providing the agency with photographs and information regarding the activities of suspicious persons. The FBI allegedly approached petitioner sometime after the events of September 11, 2001, knowing that he had been ordered removed to Iran and could be deported at any time. ( See Hab. Pet. at 4, ¶ 14). In support of these allegations, petitioner offers the affidavits of Frank Kirk, an attorney, and Visar Belegu, a family friend. Kirk states that petitioner told him that he had been recruited by the FBI to report on persons attending a local mosque "which he willingly did." ( Id., Exh. A at 1, ¶ 3). After petitioner was arrested, Kirk contacted Agent Puskas "and found that what Mohammad had previously told me was accurate." ( Id., Exh. A at 1-2, ¶ 4). Belegu also talked with the FBI about petitioner. According to Belegu:
On a telephone conversation, on January 23rd, 2002, special agent Mike Puskas told me that he was the one that Mohammad has dealt with after the events of September 11, 2001. He told me that since then Mohammad has met with him several times, and that he has been helpful to the FBI . . . After an extensive conversation, special agent Puskas acknowledged the danger Mohammad would face for his life if he were forced to return to Iran but he told me that he had to consult with his superiors, and he would be back with him on whether the FBI would get involved in helping Mohammad. He called me about three days later, and said that they have decided not to get further involved in Mohammad's case.
( Id., Exh. B at 1, ¶ 4). Belegu further states that Agent Stern told him that "agents of the Iranian intelligence are aware that Mohammad had assisted the FBI . . . and that he worried about Mohammad getting killed if he is forced to return to Iran." ( Id., Exh. B at 1-2, ¶ 5).
Under the due process clause of the Fifth Amendment, the government has a duty to protect and care for a person when it affirmatively places the person in a position of danger the person would not otherwise have faced. See Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002), reh'g denied, 57 Fed.Appx. 213 (5th Cir. 2003) (citing cases). In order to obtain habeas relief on this "state-created danger" theory, petitioner must prove that the FBI acted with deliberate indifference in creating or increasing a known danger to him. Id. at 322. Through the affidavits of Kirk and Belegu, petitioner has demonstrated "good cause" for limited discovery on this claim prior to an evidentiary hearing.
At a TRO hearing held on March 18, 2003, the district judge left open the possibility that petitioner may be entitled to habeas relief if he can prove that the government induced or coerced him into providing information on the Oklahoma Shiite Muslim community after September 11, 2001, knowing that he faced danger upon his deportation to Iran. ( See TRO Hrg. Tr. at 37-38).
Accordingly, petitioner is granted leave to take the oral depositions of FBI Agent Michael S. Puskas and Agent Stern. These witnesses shall be deposed by June 13, 2003 in either Dallas or Oklahoma City, at the option of respondents, unless another time and place are agreed to by the parties. The depositions may not exceed three hours each and shall be limited in scope to:
(1) dealings between petitioner and the FBI after September 11, 2001; and (2) the FBI's knowledge of any danger petitioner may face if he is deported to Iran.
Petitioner has failed to establish "good cause" for taking a Rule 30(b)(6) deposition of the FBI. The facts alleged in his pleadings implicate only Agents Puskas and Stern. Accordingly, petitioner's motion for leave to conduct this other discovery is denied.