Free Motion for Discovery - District Court of California - California

Case 3:07-cv-04845-SI

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1 COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN 2 California State Bar No. 187609 433 G Street, Suite 202 3 San Diego, California 92101 Telephone No. (619) 652-9960 4 Facsimile No. (619) 652-9964 5 COLEMAN & BALOGH LLP ETHAN A. BALOGH 6 California State Bar No. 172224 255 Kansas Street, Suite 340 7 San Francisco, California 94103 Telephone No. (415) 565-9600 8 Facsimile No. (415) 565-9601 9 Attorneys for Petitioner Eliot Scott Grizzle 10 11 12 ELIOT SCOTT GRIZZLE, 13 14 v. 15 ROBERT HOREL, 16 17 18 19 PLEASE TAKE NOTICE that petitioner, Eliot Scott Grizzle, will ask the Court to enter an Respondent. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 07-4845 SI

NOTICE OF MOTION AND MOTION FOR DISCOVERY

20 order granting the motion listed below. 21 22 23 24 25 26 27 28

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MOTION Petitioner, Eliot Scott Grizzle, pursuant to the United States Constitution, and all other

3 applicable statutes, case law and rules, hereby moves the Court for an order allowing him to conduct 4 discovery. 5 This motion is based upon the instant motion and notice of motion, the attached statement of

6 facts and memorandum of points and authorities, and any and all other materials that may come to the Court's 7 attention at the time of the hearing on this motion. 8 9 10 Dated: January 15, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Benjamin L. Coleman, Ethan A. Balogh COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN ETHAN A. BALOGH Attorneys for Mr. Grizzle Respectfully submitted,

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1 COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN 2 California State Bar No. 187609 433 G Street, Suite 202 3 San Diego, California 92101 Telephone No. (619) 652-9960 4 Facsimile No. (619) 652-9964 5 COLEMAN & BALOGH LLP ETHAN A. BALOGH 6 California State Bar No. 172224 255 Kansas Street, Suite 340 7 San Francisco, California 94103 Telephone No. (415) 565-9600 8 Facsimile No. (415) 565-9601 9 Attorneys for Petitioner Eliot Scott Grizzle 10 11 12 ELIOT SCOTT GRIZZLE, 13 14 v. 15 ROBERT HOREL, 16 17 18 19 Respondent. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Case No. C 07-4845 SI

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER'S MOTION

PRELIMINARY STATEMENT Petitioner, Eliot Scott Grizzle, respectfully submits the following memorandum in support of

20 his requests for discovery. Mr. Grizzle requests that his simultaneously filed memorandum of law in support 21 of his petition for a writ of habeas corpus be incorporated by reference. 22 23 ARGUMENT Under the Federal Rules Governing § 2254 Cases, Rule 6(a) ("Habeas Rule 6"), discovery is

24 available to habeas petitioners at the direction of the Court for good cause shown. See Jones v. Wood, 114 25 F.3d 1002 (9th Cir. 1997) (granting motion for discovery where necessary to fully develop prejudice prong of 26 ineffective assistance of counsel claim); see also Harris v. Nelson, 394 U.S. 286, 300 (1996) ("[W]here 27 specific allegations before the court show reason to believe that the petitioner may, if the facts are fully 28 developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty

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1 of the court to provide the necessary facilities and procedures for an adequate inquiry."); Bracy v. Gramley, 2 520 U.S. 899 (1997). Habeas Rule 6 allows a petitioner to invoke any of the discovery processes available 3 under the Federal Rules of Civil Procedure. Accordingly, Mr. Grizzle makes the following discovery 4 requests. 5 6 A. Documents And Recordings Mr. Grizzle seeks the following documents and recordings. First, Mr. Grizzle requests that

7 the state be ordered to produce the prison housing logs for Brian Healy and Frederick Clark. By prison 8 housing logs, Mr. Grizzle seeks to obtain whatever prison records document in what prison and in what cell 9 Healy and Clark were incarcerated throughout their prison careers. As set forth in Mr. Grizzle's memorandum 10 of law, it is clear that either Healy or Clark committed perjury at the trial regarding their relationship. Clark 11 testified that they had known each other for years in various prisons and had been housed in neighboring cells. 12 Healy testified that he never had even seen Clark. The prison housing logs will establish which one 13 committed perjury. 14 Second, Clark apparently gave a tape-recorded interview to investigator Rogers before Fallman

15 conducted his videotaped interview. Mr. Grizzle requests that the state produce the tape-recorded interview 16 of Clark. 17 Third, Mr. Grizzle requests that the state produce all prosecution files in this case for an in

18 camera inspection. What the prosecution knew and investigated regarding the suspected perjury of Clark and 19 Healy is highly relevant to the instant petition. 20 21 B. Depositions Mr. Grizzle requests that the Court allow the depositions of the following witnesses. First, Mr.

22 Grizzle seeks the deposition of attorney Paul Gallegos. Mr. Gallegos initially represented Mr. Grizzle in the 23 trial court. Clark maintains that Mr. Gallegos, acting for Mr. Grizzle, arranged for Clark to commit perjury 24 at the trial of Mr. Grizzle's codefendant. Mr. Gallegos has been the District Attorney for Humboldt County 25 and will undoubtedly establish that Clark's allegation is a lie. 26 Second, Mr. Grizzle seeks the deposition of the trial prosecutor, James Fallman. Mr. Grizzle

27 has maintained that Fallman and the prosecution knowingly, or at least recklessly and negligently, presented 28 the perjured testimony of Clark and Healy. Fallman's testimony is highly relevant to this claim.

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Finally, Mr. Grizzle requests that he be allowed to supplement this discovery request as

2 discovery is produced, and the state's response to his petition is filed. 3 4 5 Dated: January 15, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Benjamin L. Coleman, Ethan A. Balogh COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN ETHAN A. BALOGH Attorneys for Mr. Grizzle Respectfully submitted,

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1 2 3 4 5 6 7 I, the undersigned, say:

PROOF OF SERVICE

1) That I am over eighteen years of age, a resident of the County of San Diego, State of California, and not a party in the within action; 2) That my business address is 1350 Columbia Street, Suite 600, San Diego, California, 92101;

3) That on January 15, 2008, I served a copy of the attached Motion on counsel for respondent 8 by e-mailing a copy to [email protected]. A hard copy is also being forwarded via U.S. Mail to Jill M. 9 Thayer, Deputy Attorney General, 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004. 10 I certify under penalty of perjury that the foregoing is true and correct. Executed on January 11 15, 2008, at San Diego, California. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Benjamin L. Coleman BENJAMIN L. COLEMAN

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Motion for Discovery C 07-4845 SI