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Tillery v. Shartle

United States District Court, D. Arizona

September 29, 2017

David Mark Tillery, Petitioner,
J.T. Shartle, Respondent.



         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) (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.

         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”))[1]; 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).

         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) (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.

         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) (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 object.”).

         IV. Waiver of Claims (Objection 2)

         Tillery 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.

         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 ...

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