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United States of America v. John Ernest Dade

December 2, 2010

UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT
v.
JOHN ERNEST DADE, DEFENDANT-MOVANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

ORDER

INTRODUCTION

Pending before the Court is John Ernest Dade's ("Dade") Motion for Leave to Conduct Discovery (Dkt. 32) filed in connection with his Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 29). For the reasons set forth below, the Court will grant the Motion in part. The Court will not address the merits of Dade's claims at this time.

BACKGROUND

Dade filed a 38-page pro se § 2255 Motion (Dkt. 1) supported by a 49-page Memorandum (Dkt. 1-1) and a 50-page Declaration (Dkt. 1-2). He raised over sixty issues and sub-issues. Dade also filed a Motion for Discovery (Dkt. 2), Affidavit of Recusal (Dkt. 3), and Motion to Expand the Record (Dkt. 4). In his § 2255 Motion, Dade requested counsel, and the Government joined in his request in its Response (Dkt. 5).

The Court appointed counsel to file an amended § 2255 motion. It denied the Motion for Discovery and Motion to Expand the Record without prejudice to refiling should appointed counsel deem them warranted. See Order, Dkt. 6.

Through appointed counsel, Dade filed the pending Amended § 2255 Motion alleging four claims of ineffective assistance against trial counsel Steven Richert, two of which were also alleged against trial counsel Scott Hansen, and one claim of denial of right to self representation at trial.

Dade seeks leave of Court to conduct discovery in support of his claims of ineffective assistance of counsel and to narrow the focus of any evidentiary hearing which may be conducted in this case. The Government contends that the record contains sufficient evidence upon which to deny the Amended § 2255 Motion without a hearing. However, if granted, the Government believes the inquiry should be limited to whether counsel received plea offers, the nature of any offers, whether counsel communicated the offers to Dade, and Dade's responses to any offers. The Government further states that it has made available to counsel all documents in its file and will continue to do so.

LEGAL STANDARD

Unlike the usual civil litigant,a habeas petitioner is not entitled to broad discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). See also Harris v. Nelson, 394 U.S. 286 (1969); Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993) ("[T]here is simply no federal right, constitutional or otherwise, to discovery in habeas proceedings . . . ."). However, "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practice and principles of law." Rule 6 (a) of Rules Governing Section 2255 Proceedings ("2255 Rules").

A party may only utilize the discovery procedures 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." Bracy, id. (addressing the substantially similar Rule 6(a) of the Rules Governing Section 2254 Proceedings). Good cause exists when there is "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 discovery rule requires that the requesting party seek leave of court providing reasons for the request and including any proposed interrogatories, requests for admissions, or document requests. 2255 Rule 6(b).Doing so enables the Court to evaluate whether the discovery would lend support to adequately articulated claims involving specific factual allegations. Discovery is not to be used for "fishing expeditions to investigate mere speculation" or for a prisoner to "explore [his] case in search of its existence." Calderon v.U.S. District Court (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996) (citations omitted).

ANALYSIS

The Amended § 2255 Motion states that it is based in part on Dade's Sworn Declaration (Dkt. 1-2) filed with his pro se § 2255 Motion (Dkt. 1). Dade has complied with Rule 6(b) by stating that he expects the discovery to support and narrow his claim, by identifying the requested documents, and by identifying the individuals whom he wishes to depose. Having reviewed the Declaration and ...


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