United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
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
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).
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).
Tillery has filed a document entitled Contempt (Doc. 59).
Respondent has filed a response (Doc. 60).
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)
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) (where
judicial notice was requested of irrelevant information, the
court declined to consider the information). 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.
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) (addressing Rule 6(a)
of the Rules Governing Section 2254 proceedings (“2254
Rules”)); see also Campbell v. Blodgett,
982 F.2d 1356, 1358 (9th Cir. 1993) (“[T]here is simply
no federal right, constitutional or otherwise, to discovery
in habeas proceedings . . .”). 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
discovery in 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) (where a habeas
petitioner sought to dispute facts previously resolved by
state court, good cause is not shown).
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).
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
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.
Report and Recommendation
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)
(reading the Ninth Circuit's decision in
Reyna-Tapia as adopting the view that district
courts are not required to review “any issue that is
not the subject of an objection”); United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
were made). The Court adopts those portions of the Report and
Recommendation to which there is no specific objection.
Tillery's Objection to Entire Finding and
Recommendations (Objection 1)
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) (stating that the court must make a de
novo determination of those portions of the report and
recommendation or specified proposed findings or
recommendations to which objection is made); 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) (noting that
“general, non-specific objections” do not require
the District Court “conduct de novo review of the
entire report”); Garcia v. Nuno, No.
14-CV-00243-BAS(BGS), 2016 WL 1211954, at *4 (S.D. Cal. Mar.
29, 2016) (“Numerous courts have held that a general
objection to the entirety of a Magistrate Judge's [report
and recommendation] has the same effect as a failure to
Waiver of Claims (Objection 2)
objects to the magistrate judge's statement that
Tillery's “claims arising out of his conviction by
military court-martial were ‘fully and fairly'
considered by the military courts. Any claim not previously
raised has been waived.” 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.
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 ...