I
Jurisdiction.
In opposition to Campbell’s motion in the district court, Respondents (hereinafter the State) argued that the district court lacked jurisdiction to consider the motion because the filing of the notice of appeal in the underlying case1 divested the district court of jurisdiction over all claims in this matter. The State does not renew this argument on appeal. Nevertheless, we must consider our own jurisdiction, which hinges on that of the district court.
Rule 6 of the Rules Governing Section 2254 Cases permits habeas petitioners to use the discovery procedures available under the Federal Rules of Civil Procedure if judicial leave is granted. 28 U.S.C. foil. § 2254 (1988). Rule 27(b) of the Federal Rules of Civil Procedure in turn permits litigants to use discovery procedures pending appeal if judicial leave is granted. Thus, Rule 27(b) creates an exception to the general principle that the filing of the appeal divests the trial court of all authority over a case. Rule 27(b) contemplates that a district court with existing subject matter jurisdiction retains sufficient jurisdiction of a case under appeal to issue an extraordinary discovery order pending that appeal. Accordingly, the district cpurt had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254. The denial or grant of a motion under Rule 27(b) is a final order. Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 870 (9th Cir.), cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976); Ash v. Cort, 512 F.2d 909, 912 (3d Cir.1975). We have jurisdiction under 28 U.S.C. § 1291.
[1358]*1358II
Standard of Review
The availability of any discovery during a habeas proceeding is committed to the sound discretion of the district court. See 28 U.S.C. foil. § 2254 Rule 6 & adv. comm, note (1988). The availability of discovery pending appeal under Rule 27(b) is also a matter within the court’s discretion. Crateo, 536 F.2d at 870. We review the district court’s denial of a motion under Fed.R.Civ.Pro.Rule 27(b) for abuse of discretion, under which we will not reverse absent a definite and firm conviction that the district court has committed a clear error of judgment.
III
Merits
The district court denied Campbell’s motion to videotape the execution after finding that the evidentiary value of the proposed videotape was not sufficiently substantial to meet the standard imposed by Rule 27(b). Rule 27(b) permits a court to order discovery pending appeal if it finds that the perpetuation of evidence is “proper to avoid a failure or delay of justice” in the event of further proceedings in the district court. Fed.R.Civ.P. 27(b). The district court found that the evidentiary value of the tape was doubtful, while the infringement upon comity concerns and privacy interests was serious. Consequently, in the exercise of its discretion, it declined to order the State to permit Campbell to videotape Dodd’s execution. We find no abuse of discretion in the court’s determination.
A. Comity Concerns
The district court perceived serious questions of comity in the notion of forcing the State to contravene its established policy against recording executions and ordering it to allow a particular person to attend and record an execution. The dissent argues that the district court abused its discretion because comity is not an appropriate concern in this context; federal habeas corpus relief by its very nature impinges heavily on state interests. The dissent thus discounts this value as of no importance. To the contrary, it is precisely because federal habeas corpus does infringe so greatly on state comity interests that any expansion or extension of those proceedings requires strong justification indeed.
The dissent poses the issue as whether the state’s bar on attendance at executions may be permitted to interfere with a federal constitutional right. This is incorrect in at least two respects. First, it is the act of recording the execution and the fact of the recording’s existence, and not mere attendance by an additional witness, that is at issue. Second, and more importantly, there simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter. See Harris v. Nelson, 394 U.S. 286, 296, 89 S.Ct. 1082, 1089, 22 L.Ed.2d 281 (1969) (adoption of federal rules of civil procedure was not intended to make discovery provisions of rules available in habeas corpus proceedings).
Contrary to the dissent’s assertion, Campbell is not “only asking that one additional person be permitted to attend.” Campbell asks that we order the State to open to his agent the most serious of all state legal proceedings against its citizens, the taking of a human life. He asks that we order the State to permit him to create a permanent audiovisual record of the event, to engage in conduct during the event necessary to allow the creation of the video and audiotapes, and to make whatever technical arrangements (placement of cameras, microphones, etc.) necessary to do the job in a meaningful way. In this situation comity is not only an appropriate concern, it is a highly weighty one. Had there been a greater showing of the relevance of the evidence sought, perhaps comity alone would not be sufficient reason to deny the motion, but that is not the case, as discussed in part C. We do not find the court’s concern with state interests to be an abuse of discretion.
B. Privacy Interests
The district court also found that Campbell’s request affected the condemned pris[1359]*1359oner Dodd’s privacy rights, because there could be no guarantee against the intentional or inadvertent release of the recording to the public. Unlike the condemned prisoner in the Harris execution, on which Campbell and the dissent so heavily rely, Dodd has not consented to the videotaping of his execution.2 See Fierro v. Gomez, No. 0-92-1482 MHP (N.D.Cal. April 21, 1992) (Order granting motion to videotape execution of Robert Alton Harris). The absence of Dodd’s consent to the recording of his execution puts this case in a different realm.
The dissent responds that the incremental infringement on Dodd’s privacy is infinitesimal because of the number of witnesses already permitted to view the execution. We reject this assertion. Mere presence at and observation of an event is an intrusion of a different magnitude than the creation of a permanent audiovisual record of that event.
Free access — add to your briefcase to read the full text and ask questions with AI
I
Jurisdiction.
In opposition to Campbell’s motion in the district court, Respondents (hereinafter the State) argued that the district court lacked jurisdiction to consider the motion because the filing of the notice of appeal in the underlying case1 divested the district court of jurisdiction over all claims in this matter. The State does not renew this argument on appeal. Nevertheless, we must consider our own jurisdiction, which hinges on that of the district court.
Rule 6 of the Rules Governing Section 2254 Cases permits habeas petitioners to use the discovery procedures available under the Federal Rules of Civil Procedure if judicial leave is granted. 28 U.S.C. foil. § 2254 (1988). Rule 27(b) of the Federal Rules of Civil Procedure in turn permits litigants to use discovery procedures pending appeal if judicial leave is granted. Thus, Rule 27(b) creates an exception to the general principle that the filing of the appeal divests the trial court of all authority over a case. Rule 27(b) contemplates that a district court with existing subject matter jurisdiction retains sufficient jurisdiction of a case under appeal to issue an extraordinary discovery order pending that appeal. Accordingly, the district cpurt had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254. The denial or grant of a motion under Rule 27(b) is a final order. Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 870 (9th Cir.), cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976); Ash v. Cort, 512 F.2d 909, 912 (3d Cir.1975). We have jurisdiction under 28 U.S.C. § 1291.
[1358]*1358II
Standard of Review
The availability of any discovery during a habeas proceeding is committed to the sound discretion of the district court. See 28 U.S.C. foil. § 2254 Rule 6 & adv. comm, note (1988). The availability of discovery pending appeal under Rule 27(b) is also a matter within the court’s discretion. Crateo, 536 F.2d at 870. We review the district court’s denial of a motion under Fed.R.Civ.Pro.Rule 27(b) for abuse of discretion, under which we will not reverse absent a definite and firm conviction that the district court has committed a clear error of judgment.
III
Merits
The district court denied Campbell’s motion to videotape the execution after finding that the evidentiary value of the proposed videotape was not sufficiently substantial to meet the standard imposed by Rule 27(b). Rule 27(b) permits a court to order discovery pending appeal if it finds that the perpetuation of evidence is “proper to avoid a failure or delay of justice” in the event of further proceedings in the district court. Fed.R.Civ.P. 27(b). The district court found that the evidentiary value of the tape was doubtful, while the infringement upon comity concerns and privacy interests was serious. Consequently, in the exercise of its discretion, it declined to order the State to permit Campbell to videotape Dodd’s execution. We find no abuse of discretion in the court’s determination.
A. Comity Concerns
The district court perceived serious questions of comity in the notion of forcing the State to contravene its established policy against recording executions and ordering it to allow a particular person to attend and record an execution. The dissent argues that the district court abused its discretion because comity is not an appropriate concern in this context; federal habeas corpus relief by its very nature impinges heavily on state interests. The dissent thus discounts this value as of no importance. To the contrary, it is precisely because federal habeas corpus does infringe so greatly on state comity interests that any expansion or extension of those proceedings requires strong justification indeed.
The dissent poses the issue as whether the state’s bar on attendance at executions may be permitted to interfere with a federal constitutional right. This is incorrect in at least two respects. First, it is the act of recording the execution and the fact of the recording’s existence, and not mere attendance by an additional witness, that is at issue. Second, and more importantly, there simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter. See Harris v. Nelson, 394 U.S. 286, 296, 89 S.Ct. 1082, 1089, 22 L.Ed.2d 281 (1969) (adoption of federal rules of civil procedure was not intended to make discovery provisions of rules available in habeas corpus proceedings).
Contrary to the dissent’s assertion, Campbell is not “only asking that one additional person be permitted to attend.” Campbell asks that we order the State to open to his agent the most serious of all state legal proceedings against its citizens, the taking of a human life. He asks that we order the State to permit him to create a permanent audiovisual record of the event, to engage in conduct during the event necessary to allow the creation of the video and audiotapes, and to make whatever technical arrangements (placement of cameras, microphones, etc.) necessary to do the job in a meaningful way. In this situation comity is not only an appropriate concern, it is a highly weighty one. Had there been a greater showing of the relevance of the evidence sought, perhaps comity alone would not be sufficient reason to deny the motion, but that is not the case, as discussed in part C. We do not find the court’s concern with state interests to be an abuse of discretion.
B. Privacy Interests
The district court also found that Campbell’s request affected the condemned pris[1359]*1359oner Dodd’s privacy rights, because there could be no guarantee against the intentional or inadvertent release of the recording to the public. Unlike the condemned prisoner in the Harris execution, on which Campbell and the dissent so heavily rely, Dodd has not consented to the videotaping of his execution.2 See Fierro v. Gomez, No. 0-92-1482 MHP (N.D.Cal. April 21, 1992) (Order granting motion to videotape execution of Robert Alton Harris). The absence of Dodd’s consent to the recording of his execution puts this case in a different realm.
The dissent responds that the incremental infringement on Dodd’s privacy is infinitesimal because of the number of witnesses already permitted to view the execution. We reject this assertion. Mere presence at and observation of an event is an intrusion of a different magnitude than the creation of a permanent audiovisual record of that event. Regardless how we shape an order and regardless what contempt sanctions we may threaten, we simply cannot guarantee that no duplicate will be made or that this tape will not appear on CNN someday. We note also that Dodd’s privacy and dignity during the actual execution may be affected by the placement of cameras and microphones. We find no abuse of discretion in the district court’s consideration of this factor.
C. Relevance
Finally, the district court found that the evidentiary value of the recording was dubious and that it was unnecessary for an informed ruling on whether hanging constitutes cruel and unusual punishment in violation of the Eighth Amendment. The dissent argues that the evidence need only be relevant, not necessary. This misstates the law. Campbell must demonstrate “good cause” to merit any discovery whatsoever under Rule 6 of the rules governing habeas petitions. See 28 U.S.C. foil. § 2254 Rule 6 (1988). To merit discovery in a case that is already pending on appeal, he must demonstrate that this discovery is “proper to avoid a failure or delay of justice.” Fed. R.Civ.Pro. 27(b). In other words, Campbell must show that the loss of this evidence could result in a failure of justice.
Neither Campbell nor the dissent explain what it is that a videotape of the hanging would show at an evidentiary hearing, if one were ordered. There was evidence in the record to show that no relevant evidence would be obtained by videotaping the execution. Campbell fails to identify what it is that would be learned by watching Dodd’s execution or how it would shed any light on whether hanging violates the Eighth Amendment. Both Campbell and the dissent offer numerous conclusory statements about irreplaceable evidence and best evidence, but evidence of what?
So far as we can determine, the relevant issues in Campbell’s claim of cruel and unusual punishment are: 1) how much time elapses before unconsciousness; 2) how much time elapses before death; 3) cause of death or unconsciousness; and 4) sensations of pain and suffering before unconsciousness. At best, a videotape of the execution could shed light on the duration issues, but so too could a witness or timing device. Campbell’s expert disputes the reliability of witness testimony, but with respect to this one objectively identifiable and measurable element, we think memory distortions should not be a material problem. A videotape could not shed light on the third issue, nor on the fourth. The proposed videotape would not show the impact of the physical instrument (the rope) as it affects the body, because of the hood worn by the condemned extending over the face, neck and chest; nor would it show the location of the physical injuries, as they are either internal or hidden behind the hood. Any conclusions about pain and suffering that could be drawn from the condition of the visible body during hanging can be drawn as well or better from examination of the remains without the execution hood post mortem. We are left to conclude that [1360]*1360Campbell desires the evidence for its sheer emotional impact.
Accordingly, we find no abuse of discretion in the district court’s conclusion that Campbell failed to show this evidence is sufficiently important to compel the district court to exercise its discretion in only one way. While the lack of probative value would alone be sufficient to sustain the ruling, in combination with the district court’s other concerns we can find no abuse of discretion.
AFFIRMED.