2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IGNACIO CANELA, Case No.: 19cv1434-GPC (MSB)

12 Petitioner,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART PETITIONER’S

MOTION FOR POST-CONVICTION

14 KATHLEEN ALLISON, Secretary,

DISCOVERY AND REPORTER’S

15 Respondent. TRANSCRIPTS FOR HABEAS CORPUS

PROCEEDINGS

16 [ECF NO. 49] 17 18 19 Currently pending before the Court is the Petitioner’s “Motion for a Federal Court 20 to Order for Post-Conviction Discovery and Reporter’s Transcripts for Habeas Corpus 21 Proceedings.” (See ECF No. 49.) For the reasons set forth below, the Court DENIES in 22 part and GRANTS in part Petitioner’s motion. 23 I. BACKGROUND 24 Petitioner filed his Petition for Writ of Habeas Corpus on July 17, 2019. (ECF No. 25 1.) In it, he attacks his state superior court conviction for numerous criminal offenses, 26 including premeditated attempted murder of a police officer and several drug and 27 firearm-related offenses. (See id. at 2-3.) Petitioner’s singular claim on habeas is that 2 Respondent answered the Petition on October 10, 2019, and filed a 3900-page Notice of 3 Lodgment and Lodgment in support thereof. (ECF Nos. 13, 14.) 4 Over the last two years, the Court has granted multiple requests from Petitioner 5 to continue his deadline to file a traverse, (see ECF Nos. 16, 21, 23, 25, 27, 29, 31, 33, 40, 6 42, 46), which is currently due on January 7, 2022, (ECF No. 46). Among the reasons for 7 the various continuances have been Petitioner’s lack of legal training; limited, 8 intermittent access to the law library and telephone; pending requests to the superior 9 court for transcripts and other discovery; and primarily, restrictions on prisoner 10 movement and interruptions to law library access due to the COVID-19 pandemic. (See 11 ECF Nos. 15, 18, 22, 24, 26, 28, 30, 32, 37, 39, 41, 43.) 12 On November 12, 2021, Petitioner filed the instant motion for discovery and 13 transcripts, asking this Court to order others to provide him with three items/categories 14 of documents. (ECF No. 49.) Specifically, he asks this Court to order (1) the Clerk of the 15 Superior Court to provide photocopies of “all exhibits presented or denied at 16 Petitioner’s trial”; (2) the Clerk of the Superior Court to provide a certified copy of the 17 reporter’s transcript from December 4, 2015, with an order to unseal the in-camera 18 proceedings from the same date; and (3) the District Attorney’s Office to provide an 19 unredacted copy of the District Attorney’s discovery at Bates numbers 2254-2274 in 20 case number SCD251838. (Id. at 1-2, 14-28.) 21 II. DISCUSSION 22 In support of his requests, Petitioner primary relies on authority related to an 23 indigent criminal appellant’s right to obtain a free copy of the trial transcript. (See ECF 24 No. 49 at 3-4, 8.) However, such authority only applies to trial transcripts, and “[w]hile 25 on direct appeal, an indigent criminal defendant has an absolute right to trial 26 transcripts, Griffin v. Illinois, 351 U.S. 12 (1956), the United States Supreme Court has 27 held that there is no absolute constitutional right to a free copy of the record on 2 Because the cited authority does not support Petitioner’s requests, the Court will 3 liberally construe his request and instead apply the law relevant to discovery in federal 4 habeas cases. See, e.g., Buchanan v. Cate, Civil No. 10cv423 BTM (NLS), 2011 WL 5 2066658, at *4 (S.D. Cal. May 24, 2011) (liberally construing and analyzing pro se 6 Petitioner’s request for transcripts). The Court will first consider Petitioner’s arguments 7 common to all requested discovery, before addressing his position regarding specific 8 items. 9 A. Legal Standard for Discovery in Habeas Corpus 10 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled 11 to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 12 (1997). Rule 6 of the Rules Governing § 2254 Cases addresses discovery in the context 13 of habeas petitions from state court convictions. It specifically provides that “[a] judge 14 may, for good cause, authorize a party to conduct discovery under the Federal Rules of 15 Civil Procedure and may limit the extent of discovery.” Rule 6(a), 28 U.S.C. foll. § 2254. 16 The requesting party “must provide reasons for the request” and “specify any requested 17 documents.” Id. at Rule 6(a)-(b). A court should find good cause for discovery when 18 “specific allegations before the court show reason to believe that the petitioner may, if 19 the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” 20 Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). “Before 21 addressing whether petitioner is entitled to discovery under [Rule 6] to support his . . . 22 claim, we must first identify the ‘essential elements’ of that claim.” Id. at 904 (citation 23 omitted). Habeas, and discovery in pursuit thereof, “was never meant to be a fishing 24 expedition for habeas petitioners to ‘explore their case in search of its existence.’” Rich 25 v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (internal citations omitted). 26 / / / 27 / / / 2 Shown Good Cause for the Requested Discovery. 3 In addition to some more specific reasons provided for certain requested 4 documents, Petitioner generally explains in support of all of his requests that “[w]ithout 5 the record of the case [he] is placed in an untenable position because he will be unable 6 to accomplish the research of the facts and law(s) of the case”; that he will not be able 7 to provide specific references to the record, in the interest of judicial efficiency; and that 8 the requested records are needed to demonstrate that his constitutional due process 9 rights have been violated. (ECF No. 49 at 3.) This generalized basis, however, is not 10 good cause to permit discovery. 11 The starting point of the good cause analysis requires this Court to consider 12 whether the requested discovery could support the allegations raised by the petitioner. 13 See Bracy, 520 U.S. at 904. Petitioner has not alleged a due process claim in his Petition, 14 but instead maintains a single claim that the Court violated his right to self- 15 representation under the Sixth Amendment of the United States Constitution. (ECF No. 16 1 at 6-7.) The Court therefore looks to whether the requested discovery could 17 demonstrate that Petitioner is entitled to relief under that claim. 18 The Supreme Court has stated that “an accused has a Sixth Amendment right to 19 conduct his own defense, provided only that he knowingly and intelligently forgoes his 20 right to counsel and that he is able and willing to abide by rules of procedure and 21 courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). In Faretta v. 22 California, the Supreme Court also acknowledged that “the trial judge may terminate 23 self-representation by a defendant who deliberately engages in serious and 24 obstructionist misconduct.” 422 U.S. 806, 834 n.46 (1975) (citing Illinois v. Allen, 397 25 U.S. 337 (1970)). The Supreme Court stated that: “The right of self-representation is not 26 a license to abuse the dignity of the courtroom. Neither is it a license not to comply 27 with relevant rules of procedural and substantive law.” Id. Petitioner specifically alleges 2 per status just prior to the start of trial without a specific and adequate warning, 3 without consideration of alternative sanctions, without sufficient showing that 4 petitioner was disruptive or dilatory in a manner that threatened to subvert the core 5 concept of a trial or to compromise the court’s ability to conduct a fair trial, and without 6 making an adequate record as to how appellant’s misconduct would seriously threaten 7 the core integrity of the trial.” (ECF No. 1 at 8.) 8 Because Petitioner’s allegations pertain to whether events that transpired before 9 the trial court were sufficient to justify the trial judge’s decision to revoke Petitioner’s 10 pro per status, the Court would generally expect the evidence relevant to this claim to 11 appear in the trial court record, absent a showing that something absent therefrom 12 could somehow prove his claim. Petitioner’s general overtures regarding researching 13 the facts and the law of his case and proving up a due process violation are completely 14 unrelated to the claim he has alleged and exhausted. See Calderon v. U.S. District Court, 15 98 F.3d 1102, 1106 (9th Cir. 1996) (noting, inter alia, that a petitioner must outline 16 factual allegations stating a prima facie case for relief on an exhausted claim before the 17 court can assess whether discovery is appropriate); Buchanan v. Cate, 2011 WL 18 2066658, at *7 (noting a right to federal discovery requires an exhausted, procedurally 19 viable, and cognizable federal claim). Such untethered general claims do not amount to 20 good cause in support of discovery. See, e.g., Torres v. Diaz, Case No.: 19-cv-01964-LAB- 21 JLB, 2020 WL 905631, at *4 (S.D. Cal. Feb. 24, 2020) (finding that the petitioner’s 22 request that attorney general provide him “ALL missing/withheld ‘DISCOVERY’” in the 23 state case “to properly raise his issues/grounds for relief and its[sic] supporting 24 evidence” was not supported by good cause when petitioner did not specify which 25 missing documents would support his specific claims); Lavery v. Singh, No. 11cv1418- 26 WQH (BLM), 2011 WL 5975934, at *5 (S.D. Cal. Nov. 29, 2011) (finding request for 27 “documents that ‘will aid in the adjudication, facilitation, and expediting the 2 discovery). 3 1. Exhibits 4 Petitioner’s first request calls upon this Court to order the Superior Court to 5 provide him with all exhibits at his trial, whether they were admitted or denied. (Id. at 6 1.) He states that he has requested these items from the San Diego Superior Court, but 7 the trial judge denied the request without explanation. (Id. at 1, 13.) 8 The Court first notes there is no reason to believe that the Superior Court would 9 continue to possess proposed exhibits that were not accepted into the record. See 10 Gibbs v. Lizzaraga, Case No. EDCV 16-2499 MWF(JC), 2019 WL 668831, at *3 (C.D. Cal. 11 Feb. 15, 2019) (explaining that an exhibit that was successfully objected to, but was 12 permitted to be used for impeachment purposes, was “not introduced at trial and not 13 included in the record”). To the extent the exhibits are part of the record, it appears 14 that Respondent filed both Clerk’s Transcripts and Supplemental Clerk’s transcripts with 15 the Lodgment. (See ECF No. 14 at 2.) Petitioner does not offer any support beyond his 16 general arguments, addressed above, for this claim. He does not explain in his motion 17 whether he has or had the Clerk’s Transcript, or what he believes could be helpful to his 18 claim therein. Similarly, he has not identified any rejected exhibits that could support 19 his claim. Therefore, Petitioner has not shown good cause to receive all exhibits, or any 20 of them, and the Court DENIES this request. 21 2. Transcript of December 4, 2015 In-Camera Proceeding 22 Petitioner’s second request seeks from the Clerk of the Superior Court, “a 23 certified copy of the Reporter’s Transcript for the date of 12-4-2015, and a court order 24 to unseal a portion of that same transcript that was sealed by the Trial Court.” (ECF No. 25 49 at 2.) Petitioner again states that he has sought this unsuccessfully from the Superior 26 Court. (Id. at 2.) However, he further claims that these transcripts relate directly to the 27 Faretta claim alleged in his Petition. (Id.) Petitioner includes two pages of the 2 record. (Id. at 10-11.) 3 The Court has reviewed the entire Reporter’s Transcript from December 4, 2015. 4 (See ECF No. 14-31.) The trial court held a Status Conference on that date to make sure 5 that things were on track for the approaching trial. (See ECF No. 14-30 at 35.) During 6 the conference, Petitioner represented himself. (ECF No. 14-31 at 1.) The trial court 7 provided some discovery it had received pursuant to Petitioner’s subpoena; discussed 8 unresolved issues related to discovery; and confirmed a motion hearing date for 9 December 18, 2015, at which Petitioner anticipated adjudicating, among other things, 10 multiple Pitchess motions. (Id. at 3-10.) The trial court also explained that on December 11 18, 2015, it would address any trial preparation issues in anticipation of the January 6, 12 2016 trial date. (Id. at 10.) The trial court reminded Petitioner about the standards the 13 court would hold him to during the trial, and informed Petitioner that he could submit 14 questions for the judge to pose to the potential jurors during jury selection. (Id. at 11- 15 12.) 16 The most pertinent part of the conference, during which the proceedings referred 17 to by Petitioner transpire, is a discussion initiated by a representative of the Office of 18 Assigned Counsel (“OAC”), who addressed the Court regarding certain issues the OAC 19 was having while assisting Petitioner in the preparation of his case. (Id. at 12-17.) He 20 first discussed the procedure for obtaining Petitioner’s requested ballistics expert, (id. at 21 13-16), and then the procedure for Petitioner to subpoena witnesses and the need for 22 him to articulate the relevance of those witnesses, (id. at 16-17). It was during the 23 discussion of Petitioner’s witness subpoenas, that the trial court asked the district 24 attorney to leave so that it could proceed in-camera to discuss specific subpoenas with 25 Petitioner and the representative from the OAC. (Id. at 16-17.) The trial court stated, 26 “let the record reflect, the next procedures will be basically in-camera without the 27 district attorney present.” (Id. at 16.) The transcript reflects: “In-camera proceedings, 2 proceeds to discuss a process for exchanging and subpoenaing witnesses, targeted to 3 avoid duplicate subpoenas. (Id. at 17-18.) 4 Based on the foregoing, it appears that the portion of the transcript Petitioner is 5 requesting involves the in-camera conversation between Petitioner, the trial court, and 6 the OAC representative regarding the process for identifying the relevance of and 7 subpoenaing witnesses. Aside from stating that the transcript is relevant to the issue 8 briefed in his Petition, Petitioner has not specifically identified what was said or how it 9 could bear upon the issue before the Court. Because the trial court appears to have 10 revoked Petitioner’s pro per status in response to his repeated threat to inform the jury 11 that the Court and the prosecutor were not giving him discovery in the form of certain 12 printed photographs, (ECF No. 14-4 at 70-76, 79), it seems unlikely that anything in this 13 in-camera proceeding related to witness subpoenas is relevant to Petitioner’s claim. 14 However, generously interpreting Petitioner’s motion considering his pro se status, it is 15 conceivable that something from that exchange could support Petitioner’s habeas claim. 16 To be prudent in the protection of Petitioner’s rights, the Court will permit discovery of 17 this transcript, and GRANTS this request in part as follows. 18 Rule 5(c) of the Rules Governing 2254 Cases requires Respondent to state in its 19 answer “what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) 20 are available, when they can be furnished, and what proceedings have been recorded 21 but not transcribed,” and to attach “parts of the transcript that the respondent 22 considers relevant.” It further provides that “[t]he judge may order that the respondent 23 furnish other parts of existing transcripts or that parts of untranscribed recordings be 24 transcribed and furnished. If a transcript cannot be obtained the respondent may 25 submit a narrative summary of the evidence.” In these circumstances, the Court 26 ORDERS Respondent to lodge transcripts of the in-camera proceeding from December 27 4, 2015 with the Court no later than two weeks after the filing date of this Order. If 2 2011 WL 2066658, at *4. 3 3. Unredacted Blood Test 4 Petitioner’s final request for discovery is for unredacted blood test results that 5 were purportedly taken from Petitioner the day after his arrest. (ECF No. 49 at 2.) 6 Petitioner states that he requested this from the District Attorney’s office, who refused 7 to provide the redacted information, which they claimed did not pertain to Petitioner’s 8 case. (Id. at 1, see also id. at 27-28 (letter from District Attorney’s Office responding to 9 Petitioner’s discovery request and explaining that “[t]he information redacted from the 10 original discovery would remain redacted if any post-conviction discovery is produced, 11 because it is not information you would have been entitled to at the time of trial . . . 12 [because] it does not pertain to your case”).) 13 While Petitioner appears to be calling into question whether the blood draw 14 occurred on the date indicated, (see id. at 2), he does not explain how evidence 15 regarding the validity or date of the blood draw would be relevant to the only claim he 16 has raised on habeas—whether the trial court was justified in revoking his pro per status 17 at trial—or otherwise support a claim that would entitle him to relief. Therefore, 18 Petitioner has not shown good cause for the Court to permit this discovery, and the 19 Court DENIES this request. 20 C. Petitioner’s Deadline to File a Traverse is Continued. 21 Petitioner’s Traverse is currently due on January 7, 2021. (ECF No. 46.) To allow 22 time for Respondent to provide the transcript as required by this order, and for 23 Petitioner to review and consider the filing prior to filing a traverse, the Court sua 24 sponte CONTINUES Petitioner’s deadline to file a traverse to February 16, 2022. 25 III. CONCLUSION 26 For the reasons explained in this Order, the Court GRANTS Petitioner’s motion for 27 discovery in part, DENIES it in part, and ORDERS Respondent to lodge transcripts of the 1 || after the filing date of this Order. If Respondent is unable to lodge the transcript, he 2 || must file a declaration explaining his efforts to obtain the transcript and why it was 3 ||unsuccessful. Petitioner’s requests for other discovery are DENIED. The Court sua 4 ||sponte CONTINUES Petitioner’s deadline to file a traverse to February 16, 2022. 5 IT IS SO ORDERED. 6 ||Dated: January 4, 2022 -

_ 2 FZ 3 Honorable Michael S. Berg United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28