Tillery v. Shartle
Decision Date | 29 September 2017 |
Docket Number | No. CIV 16-204-TUC-CKJ (LAB),CIV 16-204-TUC-CKJ (LAB) |
Parties | David Mark Tillery, Petitioner, v. J.T. Shartle, Respondent. |
Court | U.S. District Court — District of Arizona |
On December 14, 2016, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 41) in which she recommended that the Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody filed by David Mark Tillery ("Tillery") be denied. Additionally, the magistrate judge construed the Petition for Summary Judgment (Doc. 17) filed by Tillery as a supplement to the Petition. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to Fed.R.Civ.P. 72(b)(2). Tillery has filed an objection. A response and a reply have been filed.
Additionally, Tillery has filed a Request for the Court to Take Judicial Notice under Rule 201 of the Fed.R.Civ.P. of Subpoena(s) Certified Mail # 70160000000357634(Doc. 52). Respondent has filed a response (Doc. 54). Respondent has filed a Motion to Quash Subpoena (Doc. 53), Tillery has filed a response (Doc. 55) and Respondent has filed a reply (Doc. 56).
Tillery has also filed a Motion for Summary Judgment in Docket # 56 (Doc. 57). Respondent has filed a Notice of No Response unless Directed to do so by the Court (Doc. 58).
Lastly, Tillery has filed a document entitled Contempt (Doc. 59). Respondent has filed a response (Doc. 60).
I. Request for the Court to Take Judicial Notice under Rule 201 of the Fed.R.Civ.P. of Subpoena(s) Certified Mail # 70160000000357634 (Doc. 52), Motion to Quash Subpoena (Doc. 53), Motion for Summary Judgment in Docket # 56 (Doc. 57), and Contempt (Doc. 59)
Tillery requests this Court to take judicial notice that subpoenas attached to his request were served upon Respondent. That subpoenas may have been served upon Respondent is not relevant to the pending habeas petition. See e.g. Plevy v. Haggerty, 38 F.Supp.2d 816 (C.D.Cal. 1998) ( ). The Court, therefore, will not consider the information in its review of the habeas petition. However, to any extent the fact that the subpoenas were served upon Respondent is relevant to the Motion to Quash Subpoena, the Court accepts that the subpoenas were served upon Respondent.
Respondent requests that the subpoenas be quashed. Unlike the typical civil litigant, a habeas petitioner is not entitled to broad discovery as a matter of course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) ( )1; see also Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993) (). However, "[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." Rule 6(a), Rules Governing Section 2254 Cases. "While requests for discoveryin habeas proceedings normally follow the granting of an evidentiary hearing, there may be instances in which discovery would be appropriate beforehand." Rules Governing Section 2254 Cases, Advisory Notes. Good cause exists when there is "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, citing Harris v. Nelson, 394 U.S. 287, 300 (1969); Gilday v. Callahan, 99 F.R.D. 308 (D.C.Mass. 1983) ( ).
Further, Rule 6(b) requires that the party seeking leave of court provide reasons for the request together with any proposed interrogatories, requests for admissions, or document requests. Providing the reasons and proposed discovery enables a court to evaluate whether the discovery would lend support to adequately articulated claims involving specific factual allegations. Discovery is not to be used for "fishing expeditions to investigate mere speculation" or for a prisoner to "explore [his] case in search of its existence." Calderon v. U.S. Dist. Court for the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996) (citations omitted). Indeed, rather than facilitating a fishing expedition, "[h]abeas is an important safeguard whose goal is to correct real and obvious wrongs." Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999).
Here, Tillery has not shown good cause for the discovery at this stage in the proceedings. Rather, he has argued his constitutional rights to due process and to confront witnesses under compulsory process have been violated. However, that does not address whether discovery is needed in this habeas proceeding. Indeed, Tillery has completed the habeas petition and his objections to the Report and Recommendation.
The Court will deny the request for judicial notice and will grant the request to quash the subpoenas. Because the Court is quashing the subpoenas, it will deny Tillery's requests for summary judgment and for Respondent to be held in contempt for failing to appear for the subpoenas.II. Report and Recommendation
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) ( ); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) ( ). The Court adopts those portions of the Report and Recommendation to which there is no specific objection.
III. Tillery's Objection to Entire Finding and Recommendations (Objection 1)
Tillery makes general all-encompassing objections to the Report and Recommendations. These objections do not object to specific findings or recommendations included in the Report and Recommendation. The Court will overrule these objections. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) ( ); see also Ortiz v. Napolitano, 667 F.Supp.2d 1108 (D.Ariz. 2009); Napier v. Ryan, No. CV-09-02386-PHX-ROS, 2011 WL 744899, at *1 (D. Ariz. Feb. 25, 2011) ( ); Garcia v. Nuno, No. 14-CV-00243-BAS(BGS), 2016 WL 1211954, at *4 (S.D. Cal. Mar. 29, 2016) ().IV. Waiver of Claims (Objection 2)
Tillery objects to the magistrate judge's statement that Tillery's Objections (Doc. 44) (citing R&R (Doc. 41) at 1). Tillery asserts this statement is unsupported and the statement attempts to suggest Tillery is estopped from adding grounds.
However, as discussed by the magistrate judge, it is presumed the military courts fully and fairly considered those claims presented by Tillery. See Report and Recommendation (Doc. 41), pp. 6-7. Indeed, the Court "declines to presume a military appellate court . . . failed to consider all the issues presented to it before making a decision." Thomas v. United States Disciplinary Barracks, 625 F.3d 667, 672 (10th Cir. 2010). Moreover, although Tillery asserts he has not waived his claims, the Ninth Circuit Court of Appeals has recognized that, absent cause and prejudice, a petitioner will waive a claim by failing to present it to the military courts. Davis v. March, 876 F.2d 1446, 1448-50 (9th Cir. 2001). Tillery has not shown cause to excuse his failure to present the issues to the military courts nor has he presented any evidence of prejudice. The Court agrees with the magistrate judge that Tillery has waived those claims not presented to the military courts.
To the extent Tillery is asserting the magistrate judge erred in not permitting him to amend his petition to include additional claims, Tillery could have sought reconsideration of that determination pursuant to LRCiv 7.2(g) or could have sought review of that determination by this Court pursuant to 28 U.S.C. § 636(b)(1)(a) ( ). In other words, the statement of the magistrate judge is correct - Tillery's claims that were not previously raised before the military courts and this Court are waived. See e.g., 22 A.L.R. Fed. 2d 1 (Originally published in 2007) (omission of claims may result in dismissal of claims).
The Court will overrule this objection.
V. Testimony (Objections 3 - 8)
Tillery objects to the magistrate judge's statements summarizing the facts and evidence presented in prior proceedings. However, the statements were included in the "Summary of the Case" section of the Report and Recommendation. The Court does not view the inclusion of these statements in the summary as an affirmation of the truth of the statements. Rather, this is a...
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