United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR LEAVE TO CONDUCT
Theresa L. Fricke United States Magistrate Judge
petitioner, William Womack, moves the Court for an order
allowing him to conduct discovery under Rules 5 and 6 of the
Federal Rules Governing Section 2254 Cases and extend the
time permitted for him to file a reply to the response brief.
Dkt. 12. In a separate order, the Court grants Mr. Womack
additional time to submit his reply arguments by allowing him
to include them in supplemental briefing concerning
exhaustion of state remedies, due in June. Dkt. 15.
Womack fails to show that either expanding the record, or
allowing the parties to conduct discovery, would be
authorized by the Federal Rules Governing Section 2254 at
this time. Therefore, Womack's request to conduct
discovery will be denied.
6(a) of the Rules Governing Section 2254 Cases provides that
a judge may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Civil Procedure and may
limit the extent of discovery. 28 U.S.C. § 2254 Rule
In addition, Rule 5(c) of the Rules Governing Section 2254
. . . The respondent must attach to the answer parts of the
transcript that the respondent considers relevant. The judge
may order that the respondent furnish other parts of existing
transcripts or that parts of untranscribed recordings be
transcribed and furnished. If a transcript cannot be
obtained, the respondent may submit a narrative summary of
28 U.S.C. § 2254 Rule 5(c).
“[a] habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of
ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). Discovery is properly limited in habeas
corpus because it “is not the trial itself but a
collateral attack upon a standing conviction.”
Austad v. Risley, 761 F.2d 1348, 1355 n.4 (9th Cir.
claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of
§ 2254(d)(1) on the record that was before that state
court.” Cullen v. Pinholster, 563 U.S. 170,
184 (2011). If the state courts did not adjudicate a claim on
the merits, this Court may receive new evidence only if the
petitioner satisfies the requirements of § 2254(e)(2).
Pinholster, 563 U.S. at 185-86.
before introducing new evidence on an adjudicated claim, the
petitioner must show that the state court made an
unreasonable application of federal law or made an
unreasonable determination of facts based on the record
before it. 28 U.S.C. § 2254(d)(1); Gulbrandson v.
Ryan, 738 F.3d 976, 993 (9th Cir. 2013) (noting
Pinholster “effectively precludes federal
evidentiary hearings” on claims adjudicated on the
merits). And before introducing new evidence on an
un-adjudicated claim, the petitioner must show by clear and
convincing evidence that, but for constitutional error, no
reasonable fact finder would have found the petitioner
guilty. 28 U.S.C. § 2254(e)(2)(B).
Womack seeks the transcripts of pretrial hearings at which he
objected to the State's proffered testimony and asserted
his speedy trial right. He attaches as exhibits to his motion
appellate court records showing his diligence in attempting
to obtain the transcripts. Dkt. 12, Attachment 1.
separate order, this Court ordered the parties to submit
supplemental briefing on whether Womack exhausted each of his
claims by fully and fairly raising the facts and federal law
concerning each claim in state court. Dkt. 15.
claims in Womack's petition have been exhausted in state
court, then to introduce new evidence in federal court,
Womack must show that the state court unreasonably applied
federal law or unreasonably determined facts based on the
record before it. See Gulbrandson, 738 F.3d at 993;
see also Harmless v. Lazzaraga, No. 2:14-cv-00223
JAM DB, 2017 U.S. Dist. LEXIS 102374, at *8 (E.D. Cal. June
29, 2017) (unpublished) (deferring decision on new evidence
until after court decides § 2254(d) issues); see
also Scales v. Uttecht, No. 12-5082 RJB/JRC, 2012 WL
4849053, at *1-2 (W.D. Wash. Oct. 11, 2012),
aff'd, 550 Fed.Appx. 399 (9th Cir. 2013)
(unpublished) (“Although under Rule 5(c), this Court
‘may order that the ...