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Richard v. Girdich

February 1, 2007


The opinion of the court was delivered by: Gustave J. DI Bianco, United States Magistrate Judge


Petitioner John Willis Richard filed his Petition for a Writ of Habeas Corpus on July 23, 2003. Dkt. No. 1. Because his original petition was deficient, Petitioner was directed to file an amended petition. Dkt. No. 3. Petitioner filed an amended petition on September 25, 2003. Dkt. No. 6. Respondent filed a motion for summary judgment seeking dismissal of the amended petition. Dkt. No. 14. This court issued a Report and Recommendation recommending that the summary judgment motion be denied. Dkt. No. 32. The Report and Recommendation was adopted in its entirety and Respondent was directed to respond to the amended petition. Dkt. No. 38. Respondent filed a response on January 28, 2005. Dkt. No. 41.

Presently before the court are motions from Petitioner (1) seeking discovery in this habeas corpus proceeding; (2) requesting expansion of the record; and (3) for sanctions. Dkt. Nos. 48 and 50. Respondent opposes the motions. Dkt. Nos. 49 and 51. Petitioner has replied to Respondent's opposition to the motion for sanctions. Dkt. No. 52.

I. Motion for discovery

Under Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts, a party must seek leave of Court before conducting discovery. Rule 6 states, in relevant part:

(a) Leave of Court Required. 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. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.

(b) Requesting Discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents.

Id. at Rule 6(a), (b). The scope of discovery to be permitted, if at all, lies in the discretion of the court. Barry v. U.S., 528 F. 2d 1094 (7th Cir.), cert. denied, 429 U.S. 826 (1976).

Moreover, as stated in the Advisory Committee Notes, "Rule 6 was 'no[t] inten[ded] to extend to habeas corpus, as a matter of right, the broad discovery provisions ... of the [Federal Rules of Civil Procedure].'" Charles v. Artuz, 21 F.Supp.2d 168, 169 (E.D.N.Y. 1998) (citations omitted).

"[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, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); see also Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir.2003); Rossney v. Travis, 2003 WL 135692, at *12 (S.D.N.Y. Jan.17, 2003). Rule 6(a) of the Rules Governing § 2254 Cases provides that a habeas petitioner is entitled to discovery "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." See Bracy, 520 U.S. at 904. A petitioner may show good cause by presenting "specific allegations" that give the court "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 908-909 (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)). Generalized statements regarding the possibility of the existence of discoverable material cannot yield "good cause." Gonzalez v. Bennett, 2001 WL 1537553, at *4 (S.D.N.Y. Nov.30, 2001). The court may, in its discretion, deny discovery where the petitioner provides no specific evidence that the requested discovery would support his or her habeas corpus petition. Id.

Renis v. Thomas, No. 02Civ.9256, 2003 WL 22358799, at *1 (S.D.N.Y. Oct. 16, 2003).

Petitioner asks the Court for permission to serve 25 Interrogatoriesupon Michael McCartin, Esq., who is not a party to this action, but is the attorney for the Respondent. Dkt. No. 48. Petitioner has attached to his motion a copy of the proposed interrogatories. Id., Attached proposed interrogatories.

Rule 11 of the Rules Governing Habeas Corpus Proceedings permits the application of the Federal Rules of Civil Procedure to habeas proceedings "to the extent they are not inconsistent with these rules...." Rule 33(a) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") provides that "any party may serve upon any other party written interrogatories." (emphasis added). The Federal Rules do not authorize a party to serve written interrogatories upon a non-party. Based on the clear language of Rule 33, interrogatories may not be served upon a person who is not a party to the action. See Andrulonis v. United States, 96 F.R.D. 43, 45 (N.D.N.Y. 1982) (interrogatories may not be served on a non-party) (citing 4A J. Moore, Moore's Federal Practice, ¶ 33.06 at 33 (2d ed. 1982)); see also Lehman v. Kornblau, 206 F.R.D. 345, 345 (E.D.N.Y. 2001) (interrogatories served upon a non-party are a nullity).

Moreover, even if Petitioner were to seek permission to serve the proposed interrogatories upon the Respondent, the Court would deny this request as well. Petitioner seeks information regarding police reports, witness statements, and purported actions taken by police in connection with Petitioner's arrest, conviction, trial, appeal, and collateral challenges in state court. Most of the information sought relates to events that occurred, if at all, in 1989. For example, Petitioner requests information regarding written police reports filed by specific police officers in 1989, written statements made by Gloria Mallory and Sherre Pauline, and information or written reports regarding "deals" made with various persons in exchange for their testimony before the grand jury and/or at trial. See Dkt. No. 48, Attached proposed interrogatories. Petitioner sets forth no particularized reasons for such sweeping discovery. See Renis, 2003 WL 22358799, at *1 (a showing of "good cause" requires specific factual allegations which demonstrate that, if the facts are fully developed, might support Petitioner's claims for relief). The Court finds that these requests are speculative at best and are an attempt to conduct unnecessary discovery for possibly relevant materials. Moreover, Petitioner has had over fifteen years to request the information he now seeks yet has ...

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