EILEEN S. WILLETT, Magistrate Judge.
Pending before the Court are a number of motions filed by pro se habeas petitioner Gildardo Gonzales Inzunza ("Petitioner"), which the Court rules on as set forth below.
In his "Notice of Indigency" (Doc. 13 at 2-3), Petitioner requests that the Court provide him with "the Rules as to what [Petitioner] can or cannot request" in the following motions, along with copies of any Court-approved forms for the motions:
(Id. at 2-3). Petitioner also requests a Court-approved form for a Reply, if available. (Id. at 3).
The Court does not have forms available for motions, responses, or replies. Regarding Petitioner's request for relevant rules, Petitioner is directed to the (i) Federal Rules of Civil Procedure; (ii) the Local Rules of Civil Procedure; and (iii) the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.
Finally, Petitioner's Notice (Doc. 13 at 3) indicates that he does not have a copy of "any pretrial motions, Trial Transcripts, minute entries, and any post trial motions, if any, by Appeal Attorney or Post Conviction Attorney . . . ." On July 13, 2016, Respondents provided copies of those documents to Petitioner. (Doc. 19). The issue is therefore deemed moot.
For the above reasons, the Court will deny the requests contained in Petitioner's "Notice of Indigency" (Doc. 13).
Respondents have filed a Limited Answer (Doc. 10) asserting that Petitioner's habeas claims are not only untimely, but are also procedurally defaulted.
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claims will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9
A petitioner attempting to pass through the Schlup gateway must establish his or her factual innocence of the crime(s) for which he or she was convicted. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). It is not enough to establish legal insufficiency. Id. "To be credible, [a Schlup] claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324; see also Lee, 653 F.3d at 945. A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327. Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
In his June 23, 2016 Motion (Doc. 14), Petitioner seeks to obtain certain documents from Respondents and the State Bar of Arizona that Petitioner asserts are necessary to show why a fundamental miscarriage of justice will result if the Court fails to consider Petitioner's claims.
Although a habeas proceeding is a civil suit, a habeas petitioner "does not enjoy the presumptive entitlement to discovery of a traditional civil litigant." Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (stating that unlike other civil litigants, a habeas corpus petitioner is not entitled to broad discovery). A court considering a habeas corpus petition is ordinarily limited to the state court record. See Cullen v. Pinholster, 563 U.S. 170, 180 (2011) (holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits"). Yet under Rule 6(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, a court may grant a habeas petitioner's discovery request upon a showing of good cause. Bracy, 520 U.S. at 904. Good cause exists "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." Id. at 908-09. The Ninth Circuit Court of Appeals has advised that courts "should not allow prisoners to use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. U.S. Dist. Court for the Northern Dist. Of California, 98 F.3d 1102, 1106 (9th Cir. 1996).
The Court construes Petitioner's Motion (Doc. 14) as a motion for leave to serve a Request for Production of Documents on Respondents and a subpoena duces tecum on the State Bar of Arizona in order to obtain the following documents:
(Id. at 3-4) (emphasis omitted).
On July 13, 2016, Respondents filed a "Notice of Production" (Doc. 19) indicating that they mailed to Petitioner "all available transcripts, pretrial motions, and minute entries filed in Maricopa County Superior Court Cause No. CR2008-134566-001 DT. . . ." Petitioner's Motion (Doc. 14) is therefore denied as moot as to those documents. Respondents have indicated that certain other documents that Petitioner requests either do not exist or are not in their possession (Doc. 15 at 2). See Fed. R. Civ. P. 34; Pizzuti v. United States, 809 F.Supp.2d 164, 193-94 (S.D.N.Y. 2011) (finding that habeas petitioner was entitled to certain discovery from the government in order to support the merits of a habeas claim only to the extent that the requested information was in the possession, custody, or control of the government). Further, Petitioner's Motion does not contain specific allegations that provide the Court with reason to believe that those documents would demonstrate that Petitioner's allegedly time-barred and procedurally defaulted claims should pass through the Schlup gateway.
The documents that Petitioner seeks to obtain from the State Bar of Arizona appear to relate to his claim regarding the alleged ineffective assistance of his appellate counsel. Petitioner does not make specific allegations that provide the Court with reason to believe that the documents would establish a Schlup claim. The Court does not find good cause for granting Petitioner's Motion (Doc. 14) as to the documents in the possession of the State Bar of Arizona.
For the above reasons, Petitioner's "Motion for Discovery. . ." (Doc. 14) is denied.
Indigent prisoners applying for habeas corpus relief are not entitled to appointed counsel "unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); see also Knaubert v. Goldsmith, 791 F.2d 722, 728-729 (9th Cir. 1986). However, the Court has discretion to appoint counsel when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). The undersigned does not find that the interests of justice require the appointment of counsel in this case. Petitioner has failed to show that the complexities of the case are such that denial of appointed counsel would amount to a denial of due process. Moreover, Petitioner's filings with the Court indicate that Petitioner understands the issues and is capable of presenting his arguments to the Court. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming the denial of the appointment of counsel where a petitioner's pleadings demonstrated a good understanding of the issues and an ability to present contentions "forcefully and coherently"). Petitioner's "Motion for Appointment of Counsel" (Doc. 16) is denied.
Petitioner has filed three Motions (Docs. 17, 20, 24) seeking to amend his Petition for Writ of Habeas Corpus (Doc. 1) (the "Petition"). As discussed below, the Court construes two of these Motions as motions to expand the record and one of the Motions as a motion to supplement the Petition.
Where a habeas petitioner seeks to expand the record to support the merits of a habeas claim, 28 U.S.C. § 2254(e)(2)
Attached to Petitioner's July 11, 2016 Motion (Doc. 17) is a "Final Judgment and Order" issued by the Presiding Disciplinary Judge of the Arizona Supreme Court on May 6, 2013. The Order suspended Petitioner's former appellate counsel from the practice of law for six months and one day and placed counsel on probation for two years upon reinstatement. (Id. at 13-14). As the Final Judgment and Order is not currently a part of the state court record, the Court construes Petitioner's Motion (Doc. 17) as a motion to expand the record.
In his September 22, 2016 Motion (Doc. 24),
The documents attached to Petitioner's July 11, 2016 and September 22, 2016 Motions (Docs. 17 and 24) relate to the merits of Petitioner's ineffective assistance of appellate counsel claim. Because Respondents have filed a Limited Answer and have not addressed the merits of Petitioner's habeas claims, Petitioner's Motions (Docs. 17 and 24) are premature. The arguments that Petitioner makes in the Motions pertaining to his alleged actual innocence may be presented in his Reply to Respondents' Limited Answer (Doc. 10). The Court will deny Petitioner's Motions (Docs. 17 and 24).
On August 11, 2016, Petitioner filed a "Motion to Amend and Request for Relief" in which Petitioner requests to "further amend his writ of habeas to demonstrate cause and prejudice against [P]etitioner during trial and collateral proceeding's [sic] . . . ." (Doc. 20 at 3). Attached to Petitioner's Motion are portions of the state court record not previously submitted by Respondents. It appears that those documents and the arguments contained in the Motion (Doc. 20) are intended to supplement rather than replace the Petition (Doc. 1) in its entirety. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (it is a "well-established doctrine that an amended pleading supersedes the original pleading"). As such, the Court construes Petitioner's Motion (Doc. 20) as a motion to supplement. In their Response (Doc. 22), Respondents state that they do not object to the addition of the documents attached to Petitioner's Motion (Doc. 20). The Court will grant Petitioner's Motion (Doc. 20) and deem it a supplement to the Petition (Doc. 1). The Court will allow Respondents an opportunity to supplement their Limited Answer (Doc. 10).
Based on the foregoing,
