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Habeas Hints: Discovery on Habeas Corpus

by Attorneys Kent Russell and Tara Hoveland

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on “AEDPA,” the federal habeas corpus law, which now governs habeas corpus practice in courts throughout the United States.

Discovery on Federal Habeas After Pinholster: An Exercise in Futility?

After you have filed your petition in federal court and the government has responded, the record the district court will have (either provided by you or by the State) includes: (1) a copy of your 28 U.S.C. § 2254  federal petition; (2) copies of your state court habeas/post-conviction relief petitions; (3) copies of state court rulings denying your petitions and/or affirming your direct appeal; and (4) documentary evidence attached to your state court petitions, e.g., relevant portions of transcripts, declarations, expert analysis/reports, etc.). You will notice that the only “new” item on this list is the 2254 petition—everything else is something that has been previously filed in state court.

At this point, if you want to add anything to the record in district court that you previously were unable to review and/or file in state court, you must request “discovery” (to obtain documentary/physical evidence) and/or an evidentiary hearing (to obtain live testimony). Unfortunately, in federal court, you are not entitled to either of these. Instead, you must first jump through some hoops—hoops that have become narrower since the Pinholster decision. We will walk through the requirements for each below.

Discovery: To be entitled to discovery (e.g., asking for documents, records, lab reports, etc. that are relevant to your case), you must first show “good cause,” i.e., specific factual allegations that would entitle you to relief. This basically means restating your claim of error and explaining to the court that there is evidence out there that proves your claim, and that you need it to win. (See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts.) But that’s not all: You must also show that you “diligently” tried to get the evidence in state court, but they would not give it to you through no fault of your own. (We will discuss below what you need to do if you were at fault for failing to get the evidence in state court.) 

Evidentiary Hearing: You are only eligible for an evidentiary hearing in federal court if your claim is being heard de novo. This means that the district court is independently assessing the claim without giving any deference to the prior state court rulings. This is extremely rare because either this means the district court has already found (based on the existing state court record discussed above) that the state court’s decision was contrary to or an unreasonable application of United States Supreme Court law (2254(d)(1)); or the state court unreasonably determined the facts in light of the state court record (2254(d)(2)); or the state court never ruled on your claim “on the merits” because it ignored it (which is rare) or the claim suffered from some sort of procedural default (in which case the claim will most likely be dismissed in federal court anyway).

What’s worse is that even if you are eligible for a hearing under one of the above scenarios, you are still not entitled to a hearing. Yes, you heard that right there are yet more hoops! You must also satisfy one of the two exceptions in 28 U.S.C. § 2254(e)(2), i.e., (a) the claim relies on—(i) a new retroactive rule of constitutional law, or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (b) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found you guilty of the underlying offense. (Now, remember we said we would get back to what happens if you were “at fault” in state court for not obtaining evidence to support your claims? If that is the case, then you must satisfy one of the “extra” exceptions above to be entitled to discovery of documents/evidence too.)

Unfortunately, the exceptions in 2254(e)(2) are extremely difficult, if not impossible to meet. This is so because: (1) new rules of constitutional law are hardly ever declared retroactive to cases on collateral review (e.g., habeas corpus); (2) most factual predicates (e.g., “newly discovered evidence”) existed at the time of trial and could/should have been discovered by competent counsel; and (3) proving that no reasonable trier of fact (e.g., judge or juror) would have found you guilty is akin to proving “actual innocence, ” which is almost impossible to do without exonerating DNA evidence. 

However, even these rules appear to have been tightened by the Supreme Court in Cullen v. Pinholster, 131 S.Ct. 1388 (2011). The Court held that, where a state court adjudicates a state prisoner’s claim on the merits, a federal court’s review under the AEDPA (28 U.S.C. § 2254) is limited to the record that was before the state court. Although the Supreme Court did not address the effect of its decision on discovery requests, many lower federal courts have done so. Most of them concluding that if the AEDPA bars a prisoner from conducting an evidentiary hearing under Pinholster, then the petitioner necessarily can not show “good cause” for discovery under Rule 6. In other words, many federal courts are holding that if a claim was adjudicated on the merits in state court, Pinholster makes obtaining discovery on that claim futile because any new evidence adduced in federal court is irrelevant to the district court’s 2254(d)(1) review. It is also still undecided whether new evidence in federal court can be used where the district court has determined that 2254(d)(2) has been satisfied because the state court made an unreasonable determination of facts based on deficient fact-finding process or procedure. So, until the Supreme Court decides these specific issues, argue that you are entitled to discovery in federal court where you were diligent in trying to develop evidence in state court but the state court unreasonably denied your discovery request(s) or request(s) for an evidentiary hearing on your claims.

2. Get It While You Can: Obtaining Discovery in State Court or Making a Record When You Diligently Try and Fail. 

As the above discussion shows, in the wake of Pinholster, a habeas corpus petitioner can no longer rely on the federal court to allow or provide discovery that will help the petitioner to satisfy AEDPA: i.e., to show that the state court’s denial of habeas corpus relief was contrary to or unreasonably interpreted clearly established SCOTUS law. Rather, discovery must be obtained in state court to the extent it’s humanly possible to do so under state law; and if diligent efforts to obtain discovery are thwarted by the state, a record must be made to show that fault lies with a defective state procedure and not with the petitioner. 

“Discovery” in state court consists of the documentary and physical evidence that the prosecution is required to turn over to defense counsel prior to trial. It commonly includes police reports, witness interviews, laboratory test results, and the like. Most states have specific statutes and court rules that expressly require the prosecution to turn these materials over at the trial level, but these laws and rules are usually inapplicable to post conviction in general and habeas corpus in particular. 

For example, in California there are extensive statutes and rules requiring pre-trial discovery, but there is only one statute that requires discovery on post conviction or habeas corpus, namely Penal Code section 1054.9. The good news is that § 1054.9 was recently amended to apply not only to petitioners sentenced to death or life without parole, but to any person convicted of a serious felony (see § 1192.7) or violent felony (see § 667.5) resulting in a sentence of 15 years or more. Virtually any person with a conviction serious enough to be considering habeas corpus will be able to come within the broad reach of the amended statute. On the other hand, the scope of the “discovery materials” allowed by § 1054.9 is relatively narrow, being defined as “materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial.” And, before one can obtain even that, the petitioner must show “good faith efforts” to try and obtain it first from trial counsel. In short, to obtain a discovery order under § 1054.9, one must show both that the materials sought would have been discoverable at the time of trial and that trial counsel hasn’t turned them over despite reasonable requests to do so. Nevertheless, where trial counsel never obtained or has lost important discovery materials, or has provided a file that is obviously incomplete, California’s section 1054.9 (and analogous laws in other states) can and should be used in the conviction court to get reliable, clean copies of all the pre-trial discovery that the prosecution provided or was supposed to provide.

Although it’s imperative to obtain all discovery allowed by state law on habeas corpus, that’s not enough. One must also make diligent efforts to try and obtain post-conviction discovery that is not provided by the state, either because state statutes such as § 1054.9 are so limited in scope, or because the state courts are not even following their own procedures. The reason for doing this— demanding discovery that you know you are almost certainly not going to get—is because AEDPA authorizes relief in federal court where the state court’s fact-finding process was “deficient.” It necessarily follows that a good way to demonstrate “deficiency” of the state court’s procedures is to show that the habeas petitioner made reasonable discovery requests in the state court that were either ignored or arbitrarily denied.

So, for example, if it is necessary to get testimony from a witness who refuses to voluntarily provide a statement, habeas counsel should consider issuing a subpoena for that witness even though it will likely be ignored. Similarly, if there is exculpatory evidence believed to be in the possession of the prosecution but which the prosecution hasn’t provided, habeas counsel should issue a written request for production of that evidence. Again, these requests are “futile” in the sense that they are not going to be complied with, but making them to the state’s highest court and then having them explicitly or implicitly denied is useful in that they can be employed in federal court to demonstrate that the state fact-finding processes were deficient.  

With the above principles as a guide, below are some “Habeas Hints” for diligently seeking discovery in state court even if those efforts fail to bear fruit at the state court level:

• Always demand an Evidentiary Hearing at every level of the state court proceedings. 

• Go all out to win and don’t pull any punches in state court on IAC claims where the IAC standard is simply Strickland, rather than the “doubly deferential” standard that applies in federal court. 

• Whatever evidence there is to support IAC, make sure that it is either provided to the state’s highest court; or, if it is unavailable, describe in detail the unsuccessful efforts that you’ve undertaken to get it.  

• In the state’s highest court, make formal demands for any discovery that should have been available at the time of trial but, for whatever reason—e.g., IAC or violation of the prosecution’s duty to provide all exculpatory evidence—was not provided. To do this, consider using common discovery procedures that are allowed in civil cases (habeas corpus being technically a civil case): e.g., Subpoenas, Interrogatories, Requests for Production of Documents, Deposition Notices, etc.

• In sum, if you believe you need discovery to support your habeas corpus claim, formally demand it in state court, whether or not you have any realistic hope under existing law of getting it. 


Law partners Kent A. Russell and Tara K. Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale-Hubbell’s highest rating for excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25-plus years of experience and is a certified specialist in appellate law, is a contributing editor for the Handbook and is admitted in both CA and AZ. To buy the California Habeas Handbook, use the optional order form on the website – – and/or send your $89 check to Kent Russell, “CHH,” 3169 Washington St., San Francisco, CA  94115. 

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