United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
In this habeas corpus action pursuant to 28 U.S.C. § 2254, petitioner has filed four motions that await the court's decision - (1) a motion for evidentiary hearing (ECF No. 181), (2) a motion for leave to conduct discovery (ECF No. 186), (3) a motion for leave to expand the record (ECF No. 187), and (4) a motion for stay and abeyance (ECF No. 218). This order decides all four motions.
1. Motion for leave to conduct discovery
With his motion for leave to conduct discovery, Sonner asks permission to subpoena two Nevada television stations to obtain video recordings related to his case and to subpoena the Nevada Department of Corrections for information related to all Nevada homicide cases from 1976 until the present time. As noted in Sonner's own procedural history of this case, the parties herein engaged in informal and formal discovery from 2001 to 2006. ECF No. 186, p. 7. While Sonner indicates that he was prevented from discovering the material at issue during his first and second state postconviction proceedings, he has not provided an adequate justification for not pursuing the material during the protracted discovery proceedings in this court ten years ago.
Under the court's scheduling orders, Sonner's ample opportunity to conduct discovery has long since past. See ECF Nos. 21, 28, 47, 51, 61, 75, 128. As such, Sonner's motion shall be denied. See Al Alwi v. Obama, 653 F.3d 11, 26 (D.C. Cir. 2011) (holding that district court did not abuse its discretion by refusing to issue further discovery orders in habeas proceeding without a showing that detainee's requests satisfied the case management order's predicate conditions).
2. Motion for leave to expand the record
With his motion for leave to expand the record, Sonner asks to include, as part of the record, numerous exhibits attached to his motion for evidentiary hearing (i.e., ECF Nos. 182-185), which he claims are relevant to this court's adjudication of Claims G, H, I, II, TT2, TT10, TT11, HHH, and III. Rule 7 of the Rules Governing Section 2254 Cases authorizes a federal habeas court to expand the record to include additional material relevant to the determination of the merits of a petitioner's claims. However, 28 U.S.C. § 2254(e)(2) limits a petitioner's ability to present new evidence through a Rule 7 motion to expand the record in the same manner as it does with regard to evidentiary hearings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005) (holding that the conditions of § 2254(e)(2) generally apply to petitioners seeking relief based on new evidence, even when they do not seek an evidentiary hearing) (citing Holland v. Jackson, 542 U.S. 649 (2004) (per curiam)).
Thus, when a petitioner seeks to introduce, through a Rule 7 motion, new affidavits and other documents never presented in state court for the purpose of establishing the factual predicate of a claim, he must show both diligence in developing the factual basis in state court and relevancy of the evidence to his claim. If diligence is not shown, the requirements of § 2254(e)(2) must be satisfied before the court can consider expansion of the record.
As an initial matter, some of the exhibits at issue are part of the state court record, but are not included with the state court material that the respondents have filed in this proceeding. There is no impediment to the inclusion of these exhibits in the record before this court. See Dobbs v. Zant, 506 U.S. 357, 359 (1993) (per curiam) (reversing for failure to supplement the record with a late-discovered transcript). In allowing these exhibits to become part of the record, however, the court makes no judgment as to whether these exhibits are relevant to the above-noted claims.
The remainder of the exhibits Sonner seeks to include in the record were not presented to the state court, but Sonner contends that § 2254(e)(2) does not apply because he was diligent in developing the evidence in state court. As discussed in this court's order ruling upon respondents' motion to dismiss, the state district court applied a procedural bar to Sonner's second state postconviction petition in a manner that was unforeseeable and indisputably erroneous. ECF No. 170, p. 20-21. The erroneous dismissal of his case deprived Sonner of his opportunity to present the state court with the evidence he now seeks to put before this court. The circumstances here are analogous to those present in Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009).
In Scott, the petitioner's efforts to raise particular ineffective assistance of counsel claims were frustrated by the Arizona court's application of a procedural rule that limited a petitioner's ability to amend a petition for post-conviction relief. 567 F.3d at 580. In concluding that the rule was not an adequate and independent state procedural bar to federal review of the merits of Scott's claims, the Ninth Circuit noted that, at the time of the Scott's post-conviction proceeding, the only published Arizona case (an Arizona Court of Appeals decision) interpreting the relevant version of the rule was contrary to the state court's ruling in Scott's case. Id. at 581. The court of appeals further held that, because Scott had not ever been given an evidentiary hearing in state court, he was entitled to one in federal court on remand. Id. at 584. Given the similarity between this case and Scott, this court concludes that § 2254(e)(2) does not prevent this court from expanding the record herein.
Even so, this court's consideration of at least some of the additional exhibits is potentially circumscribed by the holding in Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011). In Pinholster, the Court held that federal review of habeas corpus claims under § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." 131 S.Ct. at 1398. Therefore, evidence introduced at an evidentiary hearing in federal court may not be used to determine whether a state court decision on the merits of a petitioner's habeas claim violates § 2254(d). Id. Following the decision in Pinholster, an evidentiary hearing in a federal habeas proceeding is futile unless the federal habeas court has first determined that the state court's adjudication of the petitioner's claims was contrary to or an unreasonable application of clearly established federal law, and therefore not entitled to deference under § 2254(d)(1), or that the state court unreasonably determined the facts based upon the record before it, and therefore deference is not warranted pursuant to § 2254(d)(2).
The determination of whether Pinholster limits this court's consideration of some of Sonner's newly-proffered evidence is necessarily based on (1) whether the state court adjudicated the relevant claim on the merits and (2) whether the state court decision is entitled to deference under § 2254(d)(1) or (2). Rather than delve into that inquiry here, the court shall grant Sonner's motion to expand the record, but with the proviso that the court may be precluded ...