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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVEN R. RODRIGUEZ,

Petitioner, No. CIV S-04-0725 LKK DAD P

vs.

A.K. SCRIBNER, et al.,

Respondents. ORDER

 /

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for vehicle theft

in violation of California Vehicle Code § 10851 and for receiving stolen property in violation of

California Penal Code § 496(a). Before the court are petitioner’s motion for expansion of the

record and for discovery.

In an order filed September 30, 2005, the court denied petitioner’s earlier request

to expand the record and for discovery. At that time the court concluded that petitioner had

neither established the necessity of expanding the record before this court to include transcripts

of two particular post-conviction hearings in state court nor explained how those state court

proceedings related to his pending federal habeas claims. The court also concluded that

petitioner had both failed to demonstrate good cause for discovery and to explain how the

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requested discovery was essential to the full development of his prosecutorial misconduct claim. 

Nonetheless, petitioner’s requests were denied without prejudice. (Order, filed 9-30-05 at 2-3.)

At that time the court also informed petitioner of the requirement that he demonstrate good cause

in support of any discovery request in this federal habeas proceeding. (Id.) In the motions now

pending before the court petitioner has renewed his previously denied requests. The court will

address both motions below.

I. Motion to Expand the Record

In his motion for expansion of the record, petitioner seeks an order requiring that

the state court proceedings held in his case on June 7, 2002 and June 11, 2002, be transcribed and

the transcripts of those hearings be made part of the record before this court. The proceedings in

question concerned petitioner’s motion for a new trial filed in state court following his jury trial. 

(Clerk’s Transcript (CT), lodged 8-19-04 at 291.) In that motion petitioner claimed that: (1) he

had received ineffective assistance of counsel; (2) the trial court erred in denying his motions

concerning his counsel and self-representation, his request for discovery, and his motion to

dismiss based on a Miranda violation; and (3) that the prosecutor withheld material discovery

from the defense. (Id. at 292-93.) According to the clerk’s minutes, on May 31, 2002, the

hearing on petitioner’s motion for new trial was continued to June 7, 2002. (Id. at 313.) On June

7, 2002, the clerk’s minutes indicate that the hearing was again continued, this time to June 11,

2002. (Id. at 343.) On June 11, 2002, the minute order indicates that the hearing on the motion

was reset to June 13, 2002. (Id. at 344.) The motion for new trial was heard on June 13, 2002,

and a transcript of that hearing is part of the record before this court. (Reporter’s Transcript

(RT), lodged 8-19-04 at 393-449.) Petitioner’s motion for a new trial was denied following a

lengthy hearing which included the taking of testimony from petitioner’s former defense counsel

and petitioner’s girlfriend. (Id.)

In his motion for expansion of the record, petitioner contends that on June 7 or

June 11, 2002, San Joaquin County Superior Court Judge F. Clark Sueyres, denied his request to

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have three witness testify at the hearing on his motion for a new trial. Petitioner therefore argues

that transcripts of the June 7 and June 11, 2002 proceedings “are critical to the allegations of

judicial prejudice claim in the instant petition . . . [and] the continuous denials by Honorable F.

Clark Sueyres, made it impossible for the Petitioner to present his version of the facts . . . .”

(Mot. for Expansion of Record (Mot. to Expand), at 5.) In their opposition to the motion to

expand the record, respondents argue that petitioner still has not shown how the requested

transcripts relate to his claims. Respondents also contend that even assuming the trial court

denied petitioner’s request to call three additional witnesses in support of his motion for a new

trial, petitioner has not provided declaration from any of those potential witnesses explaining

what they would have testified to had they been called at the post-trial hearing. (Opp’n to Mot.

to Expand Record, filed 11-15-05, at 2.) In reply, petitioner contends that the court “expressed to

the prosecutor, Mr. Rodriguez was going to get a new trial.” (Reply, filed 1-4-06, at 2.) 

Petitioner also states that he lacks the resources to hire an investigator to obtain declarations from

the proposed witnesses but did send a letter to one of those witnesses informing him that he

would be contacted in the future. (Id. at 2 and Ex. A at 1-2.) Petitioner again argues that the

state court record is incomplete and that the Equal Protection Clause of the Fourteenth

Amendment gives a pro se prisoner the right to have an adequate record on appeal. (Id. at 3.) 

Pursuant to Rule 7 of the Rules Governing Section 2254 Cases, the court may

direct that the record be expanded by the parties to include additional materials relevant to the

determination of the merits of the petition. However, the court finds that petitioner once again

has failed to demonstrate that the alleged proceedings he wants transcribed and made part of the

record before this court would be relevant to the resolution of his prosecutorial misconduct and

judicial bias claims. First, petitioner has failed to make any showing that his request to have

three additional witnesses testify at the hearing on the motion for a new trial was denied. The

minutes of the presumably brief appearances continuing the hearing on the new trial motion do

not reflect any such ruling. (See CT at 343-44.) Moreover, no mention of a request to call

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 As explained in the September 30, 2005 order denying petitioner’s prior motion for 1

expansion of the record, if the court determines as it considers the merits of the pending habeas

petition that the transcripts in question are relevant to the resolution of petitioner’s claims, the

court will order the record expanded on its own motion.

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additional witnesses was mentioned by petitioner at the hearing on the new trial motion. (See RT

393-449.) Most importantly, petitioner has provided no explanation as to the testimony the three

witnesses he wished to call would have provided at the hearing on his motion for a new trial. 

Nor has petitioner made any showing that a transcript of the proceedings in which his request

with respect to the three witnesses would support his judicial bias claim before this court. 

Finally, the transcript of the June 13, 2002 hearing on his motion for a new trial reflects that

petitioner was provided the opportunity to present evidence and arguments in support of his

motion. Because petitioner has failed to establish that transcripts of his June 7, 2002 and June

11, 2002, appearances would be relevant to the determination of the merits of the pending

petition, the court will deny petitioner’s motion to expand the record. The court will not consider

any further motions by the petitioner in this regard.1

II. Motion for Discovery

In his renewed motion for discovery petitioner seeks to obtain “all Police Reports

in their entirety; F.E.T. cards of fingerprints; [and] disciplinary reports of Officer Ridenour

#1007 Stockton Police Dept., assigned to F.B.I. Task Force on 12-12-01[.]” (Mot. for Discovery

at 1.) In addition, petitioner has submitted proposed interrogatories directed to Officer Ridenour

and San Joaquin County Deputy District Attorney Ron Indran as well as requests for admissions

from Ridenour and Indran. In support of these discovery requests petitioner contends in general

fashion that officer Ridenour “fabricated his [police] report, to convict Petitioner.” (Id. at 2.) 

Petitioner has attached to his motion a copy of a Stockton Record newspaper article, arguing that

the article establishes that the same officers involved in his arrest are “being monitored for civil

rights violations.” (Id.) Petitioner baldly contends that Deputy District Attorney Indran failed to

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 At the hearing on the motion for a new trial, petitioner questioned Erik Lundeberg, his 2

former defense counsel. Attorney Lundeberg testified that his recollection was that the

prosecution was forthcoming with pretrial discovery in petitioner’s case and that he felt that he

had received everything he needed from the prosecution to proceed to trial on petitioner’s behalf.

He also testified that he turned over all of the discovery received from the prosecution to

petitioner on the afternoon petitioner began to represent himself. (RT at 435-37.)

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“turn[] over all of the police reports of the Stockton Police Dept., and of the F.B.I. Task Force on

12-12-01 which allowed the perjured testimony of Officer Ridenour to be successful.” (Id. at 7.) 

In opposition to petitioner’s discovery motion, respondents contend that the

claims with respect to which petitioner seeks discovery are speculative and have no basis in the

record. Respondents note that at his trial in state court petitioner cross-examined Officer

Ridenour by referring to Ridenour’s report which included incriminating statements made by

petitioner at the time of his arrest. (Opp’n to Mot. for Discovery at 2.) Respondents argue that

because petitioner disagrees with Officer Ridenour’s version of those events, he is speculating

that he must not have received a complete version of Ridenour’s report. (Id.) In addition

respondents contend that petitioner’s assertion that Agent Gary Woffinden, a member of the

F.B.I.’s violent crime task force who was involved in petitioner’s arrest, must have prepared a

separate report that was not given to petitioner is based on pure speculation. (Id. at 2-3.) 

Respondents argue that there is nothing in the record to suggest that petitioner did not receive

complete discovery in state court. Respondents note that even petitioner’s court-appointed

attorney, who was relieved shortly before trial, testified at the hearing on the motion for a new

trial that he had received all police reports as part of normal discovery and gave them to

petitioner when he began to represent himself. (Id. at 3.) Respondents assert that petitioner 2

offers no evidence that Officer Ridenour has a history of prior misconduct. (Id.) As to the

newspaper article relied upon by petitioner, respondents observe that it is not an article but

merely a letter to the editor which mentions the monitoring of police activity in Stockton area

parks by the National Association for the Advancement of Colored People (NAACP) and does

not mention any police officers specifically. (Id. at 3-4.) Respondents argue that there has been

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no showing whatsoever suggesting that Officer Ridenour filed a false report, planted evidence or

engaged in any misconduct whatsoever. (Id. at 4.) 

In his reply, petitioner refers to various discovery motions that he has either made

or attempted to make, asserting that an inference can be made that further discovery is needed. 

(Reply in Support of Mot. for Discovery, filed 1-4-06, at 1-2.) Petitioner also contends that

Officer Ridenour indirectly admitted his arrest report was in error and that this admission

supports petitioner’s contention that he never made any incriminating statements after he was

given Miranda warnings. (Id. at 3.) As to F.B.I. Agent Woofinden, petitioner argues that

because an arresting officer is required under the California Penal Code to file a report, there

must be an additional report of his arrest that he has never received. (Id. at 4.) 

Petitioner’s arguments are unpersuasive. The parties in a habeas proceeding are

not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997);

Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir.), cert. denied, 540 U.S. 1013 (2003). Rather,

"[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules

of Civil Procedure if, and to the extent that, the judge in the exercise of his [or her] discretion and

for good cause shown grants leave to do so, but not otherwise." Rule 6(a), Rules Governing §

2254 Cases. See also Bracy, 520 U.S. at 904. Good cause is shown "where 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." Bracy, 520 U.S. at 908-09 (quoting Harris v.

Nelson, 394 U.S. 286, 300 (1969)). See also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir.

2004). In order to obtain discovery a petitioner need not demonstrate that he will prevail on the

claim underlying the discovery request. See Bracy, 520 U.S. at 909 (“It may well be, as the

Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support

a finding of actual judicial bias in the trial of his case, but we hold that he has made a sufficient

showing . . . to establish ‘good cause’ for discovery.”); Pham, 400 F.3d at 743. Thus, it has been

“held that a district court abused its discretion in not ordering Rule 6(a) discovery when the

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discovery was ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying claim. Id.

(quoting Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997)). See also McDaniel v U.S.

District Court (Jones), 127 F.3d 886, 888 (9th Cir. 1997) (finding that the district court “acted

well within its discretion in ordering discovery” where the petitioner’s claims did “not appear

purely speculative or without any basis in the record.”) Federal courts have “the power to

‘fashion appropriate modes of procedure,’ including discovery, to dispose of habeas petitions ‘as

law and justice require[.]’” Id. at 904 (citations omitted) (quoting Harris, 394 U.S. at 299-300). 

See also Bittaker, 331 F.3d at 728. 

Applying these standards, the court finds that petitioner has not demonstrated

good cause for discovery pursuant to Rule 6(a), Rules Governing § 2254 Cases. Petitioner’s

motion for discovery is based on pure speculation and is misguided due to his misreading of trial

testimony and misinterpretation of statements by the trial judge. For example, petitioner

contends that “officer Ridenour admitted his police report was in error by admitting the Miranda

was not how he wrote it up.” (Mot. for Discovery at 6.) The court has read the portions of the

transcript to which petitioner refers, but finds that absolutely no such admission of material error

was made by the officer. The court also finds that there is no suggestion that F.B.I. Agent

Woofinden prepared a report regarding petitioner’s arrest. Finally, the court agrees with

respondents that the letter to the editor of the Stockton Record submitted by petitioner provides

no basis for even suggesting that officer Ridenour has engaged in any misconduct.

Petitioner has had two opportunities to argue and present evidence in connection

with this issue. In both instances he has failed to establish good cause for discovery. Therefore,

the court will deny petitioner’s motion for discovery with prejudice. Petitioner’s request for a

hearing on his discovery motion is also denied. See Local Rule 78-230 (m). 

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CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s November 7, 2005 motion for expansion of the record is denied

with prejudice;

2. Petitioner’s November 17, 2005 motion for discovery is denied with prejudice;

3. Petitioner’s request for a hearing on his motions is denied; and

4. Petitioner’s November 17, 2005 first and second set of proposed

interrogatories and proposed requests for admissions shall be placed in the record and

disregarded. 

DATED: September 20, 2006.

DAD:4

rodr725.disc2

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