Free Memorandum in Opposition - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 GREGORY A. OTT Deputy Attorney General 6 State Bar No. 160803 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5964 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 California state prisoner Eliot Scott Grizzle ("Grizzle") has filed a petition for writ of v. ROBERT HOREL, Warden, Respondent. [No Hearing Scheduled] ELIOT SCOTT GRIZZLE, Petitioner, C 07-4845 SI (PR) OPPOSITION TO MOTION FOR DISCOVERY

21 habeas corpus pursuant to 28 U.S.C. §§ 2241 & 2254. This Court has not ordered respondent to 22 show cause on the petition; respondent has not heretofore entered an appearance. Grizzle has 23 nonetheless moved this Court for an order granting him extensive discovery. The motion is 24 premature and, regardless, fails to establish good cause for the discovery. The motion should be 25 denied. 26 27 ARGUMENT Grizzle asks this Court for leave to conduct extensive discovery, including depositions and

28 the production of documents. Stmt. of Facts and Memo. of P&A in Supp. of Pet.'s Motion (hereafter
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1 "Motion") at 2-3. The request should be rejected. 2 There is "no federal right, constitutional or otherwise, to discovery in habeas proceedings

3 as a general matter." Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Federal habeas 4 discovery is available "if, and to the extent that, the judge in the exercise of his discretion and for 5 good cause shown grants leave to do so, but not otherwise." Rules Governing Section 2254 Cases, 6 Rule 6. Good cause exists where "specific allegations before the court show reason to believe that 7 the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to 8 relief." Bracy v. Gramley, 520 U.S. 899, 909-10 (1997). 9 Grizzle's discovery request is premature. This Court has not yet conducted a preliminary

10 review of the petition to determine what, if any, claims are viable and therefore require response by 11 respondent; no order to show cause has issued. See Rules Governing Section 2254 Cases, Rule 4. 12 The requirement is not simply procedural, as "good cause" for discovery can only lie relative to a 13 viable claim. See id., Rules 4 & 6; Bracy v. Gramley, 520 U.S. at 904, 909-10; Rich v. Calderon, 14 187 F.3d 1064, 1068 (9th Cir. 1999); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 15 1990). The procedural legitimacy of the petition and its claims is likewise a prerequisite to 16 evaluating whether good cause exists for discovery. See, e.g., United States v. Roane, 378 F.3d 382, 17 403 (4th Cir. 2004) (discovery properly denied on procedurally defaulted claims); Calderon v. 18 District Court (Roberts), 113 F.3d 149 (9th Cir. 1997) (discovery inappropriate where the petition 19 contains unexhausted claims). Not having been ordered to show cause on the petition, respondent 20 has not had the opportunity to address the procedural viability of the petition or its claims, including 21 questions of timeliness, exhaustion, and procedural default. 22 Even assuming, arguendo, Grizzle raises claims substantively and procedurally viable, his

23 request for discovery remains premature. An evaluation of whether good cause exists for discovery 24 should be made after briefing of the merits by the parties and production of the record, i.e., at least 25 after an answer and traverse. Cf. Rules Governing Section 2254 Cases, Rule 6 Advisory Committee 26 Notes (observing that "requests for discovery in habeas proceedings normally follow the granting 27 of an evidentiary hearing," although "there may be some instances in which discovery would be 28 appropriate beforehand"). Only then can this Court determine whether discovery and the costs
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1 associated with it are truly necessary to disposition of the petition. Indeed, the Supreme Court has 2 "made clear that whether a state court's decision was unreasonable must be assessed in light of the 3 record the court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam); see also 4 Bell v. Cone, 535 U.S. 685, 697 n.4 (2002) (declining to consider evidence not presented to the state 5 court). Whether the state court's decision satisfies 28 U.S.C. § 2254(d) on the record that was before 6 that court should be determined on the parties' merits briefs, before any question of discovery is 7 addressed.1/ 8 Last, timing of the request aside, Grizzle fails to show good cause for discovery. Grizzle

9 does not allege that he made any attempt, successful or not, to procure the requested materials in 10 state court, or made any attempt to develop the record generally, e.g., by interviewing or seeking 11 declarations from the witnesses he now seeks to depose.2/ Cf. 28 U.S.C. § 2254(e)(2) (evidentiary 12 hearing not available where applicant failed to develop the basis of claim in state court). On its face, 13 Grizzle's motion appears no more than the prohibited proverbial fishing expedition "to investigate 14 mere speculation." Calderon v. District Court (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996). The 15 discovery motion should be denied. 16 17 CONCLUSION Accordingly, for the reasons stated, respondent respectfully requests that the motion for

18 discovery be denied. 19 20 21 22 23 24 1. Grizzle cannot rejoin that te requested discovery is necessary for the presentation of his claims: He has already filed his petition, and cannot present new evidence for the first time in his 26 traverse. 25 2. A demonstrated effort to procure the requested materials in state court is relevant not only to good cause for discovery, but also the question of exhaustion. See Vasquez v. Hillery, 474 U.S. 28 254, 257-58 (1986); Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008). 27
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Dated: July 3, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

/s/ Gregory A. Ott GREGORY A. OTT Deputy Attorney General Attorneys for Respondent

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