Giordano v. NH State Prison

Opinion

Giordano v. NH State Prison CV-97-154-M 05/18/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vincent Giordano, Plaintiff

v. Civil No. 97-154-M

Michael J. Cunningham, Warden, New Hampshire State Prison, Defendant

O R D E R

Plaintiff, Vincent Giordano, proceeding pro se, has filed an

amended petition for writ of habeas corpus in which he condenses

his grounds for habeas relief into two claims. He raises

ineffective assistance of counsel, based on his trial counsel's

failure to raise a speedy trial violation claim and acguiescence

in references to Giordano's alleged attempts to steal foreign

currency returned to him, and prosecutorial misconduct also based

on references to the foreign currency issue. The amended

petition is allowed.

Before filing his present amended petition, Giordano moved

for supplemental discovery pursuant to Habeas Corpus Rule 6.

Discovery is limited in habeas corpus proceedings. Bracy v.

Gramlev, 117 S. C t . 1793, 1796-97 (1997). Under the habeas

rules, discovery is available only "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." Rule 6(a) of

the Rules Governing Section 2254 Cases. In deciding whether to

allow discovery, the court must first determine the "essential elements" of a petitioner's claim for relief, and whether, if the

elements could be proved, the asserted claim describes a

constitutional violation. Bracv, 117 S. C t . at 1797. Then, the

court must consider whether "good cause" exists to allow

discovery, that is whether "specific allegations before the court

show 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 1799 (guotation omitted). Thus, appropriate

discovery will be allowed only when necessary to develop facts

pertinent to a potentially meritorious claim for habeas relief.

Giordano seeks discovery through reguests for "admissions of

facts" and "authenticity of documents," apparently referring to

his discovery reguest titled "Reguest for Admission of Fact"

containing fifty-eight separate reguests filed with his motion to

conduct discovery on February 11, 1998. Because Giordano amended

his petition after he moved for discovery, his reguest pertains

to a previous version of his petition, not the present petition.

If Giordano intends to pursue discovery with respect to his

present amended petition, he must file a new motion for discovery

that is focused on the issues raised in his present petition.

The court cautions petitioner, however, that his previous

discovery motion contains reguests for admissions that are likely

not relevant to his present claims. In addition, many of his

previous reguests for admissions reference a state proceeding or

transcript passage and seem merely to ask the state to agree that

the reference, or petitioner's legal conclusion, is correct. If

2 petitioner is simply seeking to confirm the authenticity of the

transcripts submitted in this case, the state would likely

stipulate. However, requests that ask the state to "admit"

transcript or pleading quotations, or legal argument, are plainly

not aimed at developing the factual basis of petitioner's claims

and are not likely to meet the "good cause" requirement. So, if

petitioner intends to seek discovery related to his present

amended petition, he must carefully focus his requests on factual

issues pertinent to pending claims for relief in light of the

legal standard applicable to discovery in habeas cases.

Further, because the amendments to 28 U.S.C.A. § 2254 apply

to petitions filed after the effective date of the Antiterrorism

and Effective Death Penalty Act("AEDPA"), April 24, 1996, the

presumptions and burdens pertinent to factual issues in section

2254(e) apply to this case.1 See Lindh v. Murphy, 117 S. C t .

2059 (1997); Santiago Rodriguez v. Superintendent, Bay State

Correctional Center, No. 97-8068, 1998 WL 119670 (1st Cir. March

23, 1998). While section 2254(e) does not necessarily preclude

all discovery, see Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir.

1997), it clearly makes a "good cause" showing much more

difficult. Factual issues determined in a state court proceeding

are presumed to be correct, and, may be rebutted only by clear

and convincing evidence, and, alternatively, if petitioner failed

to develop the factual basis of his claim in state proceedings,

1The one-year "grace" period applies only to the filing limitations period imposed by the AEDPA amendments to section 2254. Smith v. United States, 989 F. Supp. 371 (D. Mass. 1997).

3 he will not be entitled to a federal hearing unless he can meet

the requirements of section 2254(e)(2). 28 U.S.C.A. § 2254(e).

Conclusion

For the foregoing reasons, Giordano's "Supplemented Motion

for Discovery" (document no. 68) is denied without prejudice, and

his motion for extension of time (document no. 65) is denied as

moot.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 18, 1998

cc: Vincent Giordano Ann M. Rice, Esq.