The opinion of the court was delivered by: District Judge Thomas M. Rose
Chief Magistrate Judge Michael R. Merz
ADDENDUM TO DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR DISCOVERY
This capital habeas corpus case is before the Court on Respondent's Memorandum in Opposition to Petitioner's Motion for Leave to Conduct Discovery (Doc. No. 32). Because the Court's Order Granting in Party and Denying in Part Petitioner's Motion for Discovery was filed before Respondent had filed her Memorandum in Opposition, the Court will reconsider the Order in light of that Memorandum.
As Respondent points out, Petitioner has had an opportunity to develop the record in a state court evidentiary hearing on a petition for post-conviction relief. If there is evidence which Petitioner could have developed in that proceeding and which he failed to develop, he will be precluded from presenting that evidence to this Court without a showing of excusing cause and prejudice. Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed. 2d 435 (2000); Keeney v. TamayoReyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed. 2d 318 (1992).
While, as Respondent notes, Petitioner's trial counsel have already been examined with respect to his claims of ineffective assistance of counsel and it is not clear what additional information will be developed at deposition, the burden of conducting those depositions is not great and we cannot tell in advance that nothing useful will be developed. It has generally been this Court's practice to allow a Petitioner to depose his own counsel when a claim of ineffective assistance of trial counsel is made on the grounds those attorneys are in the best position to explain their own conduct and decisions. While Petitioner may be unable ultimately to satisfy the standards for ineffective assistance of counsel, Respondent has neither sought nor obtained summary judgment on those claims at this point in time.
A habeas petitioner is not required to show that a deposition is the least intrusive method of obtaining information from his prior counsel, although he will be required to show why any new information was not previously obtained.
With respect to his own medical records which Respondent asserts could be obtained without a discovery order, certainly the Court encourages informal investigation if the relevant records can be obtained and authenticated without formal process and use of such records as evidence in this proceeding remains subject to the Keeney standard.
In sum, the sought discovery may produce relevant evidence and is not unduly burdensome on any party*fn1 . Whether any evidence obtained is properly admitted will await decision on any motion for evidentiary hearing.
Michael R. Merz Chief United States ...