United States District Court, D. Nevada
JENNIFER A. DORSEY, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. Before the Court is petitioner's motion for leave to conduct discovery. (Doc. 26). Also before the Court is respondents' motion to dismiss the first amended petition based on lack of exhaustion of all claims. (Doc. 27).
I. Procedural History
After a jury trial in the Eighth Judicial District Court for the State of Nevada, petitioner was convicted of the following: Count I, conspiracy to commit robbery; Count II, conspiracy to commit murder; Count III, conspiracy to commit a crime; Count IV, burglary; Count V, robbery with the use of a deadly weapon; and Count VI, murder with the use of a deadly weapon. (Exhibits 56 & 65). Petitioner was sentenced as follows: Count I, a term of 13-60 months; Count 2, a term of 24-96 months, consecutive to Count I; Count III, 12 months, concurrent to Count II; Count IV, 22-96 months, concurrent to Counts I-III; Count V, 35-156 months, plus a consecutive 35-156 month term for use of a deadly weapon, to run concurrent with Counts I-IV; and Count VI, a term of 20 years to life, plus a consecutive term of 20 years to life for the use of a deadly weapon, to run concurrent with Counts I-V. (Exhibit 65).
Petitioner pursued a direct appeal. (Exhibit 67). The Nevada Supreme Court issued an order on December 10, 2010, affirming petitioner's convictions. (Exhibit 74). Remittitur issued on January 4, 2011. (Exhibit 75).
Petitioner filed a post-conviction habeas petition in the state district court on August 17, 2011. (Exhibit 80). The state district court denied the petition. (Exhibit 84). Petitioner appealed from the denial of his post-conviction habeas petition. (Exhibit 86). By order filed July 25, 2012, the Nevada Supreme Court affirmed the denial of the post-conviction petition. (Exhibit 103). Remittitur issued on August 20, 2012. (Exhibit 104).
Petitioner filed a second post-conviction habeas petition in the state district court on January 12, 2012. (Exhibit 90). The state district court denied this petition. (Exhibit 95). Petitioner appealed. (Exhibit 98). On January 16, 2013, the Nevada Supreme Court affirmed the denial of the petition, finding the second post-conviction habeas petition procedurally defaulted. (Exhibit 105).
Petitioner dispatched his federal habeas petition to this Court on September 6, 2012. (Doc. 1, Petition, at p. 1). This Court appointed counsel to represent petitioner in this habeas proceeding. (Doc. 6). The first amended petition was filed on September 26, 2013. (Doc. 18). The first amended petition contains five grounds for relief. ( Id. ).
On September 27, 2013, petitioner filed a motion for leave to conduct discovery. (Doc. 26). Respondents filed an opposition to the motion. (Doc. 28). Petitioner has filed a reply. (Doc. 34).
On October 9, 2013, respondents filed a motion to dismiss, asserting that two grounds of the petition are unexhausted. (Doc. 27). Petitioner, through counsel, has opposed the motion. (Doc. 35). Respondents filed a reply. (Doc. 36).
Petitioner has filed a motion to conduct discovery regarding the cause of victim Mark Friedman's death in the underlying state criminal case. Specifically, petitioner seeks the following discovery: (1) An order for the release of medical records from University Medical Center for Mark Friedman between the dates of January 30, 2007, and February 9, 2007; and (2) an order for the release of the medical records from the paramedics/AMR Unit 3911 related to Mark Friedman between the dates of January 30, 2007 and February 9, 2007. (Doc. 26, at p. 6). Petitioner states that the records he now seeks in discovery were never turned over to the defense before trial and were not admitted into evidence at trial. Petitioner contends that the State's theory of the case was that Friedman died as a result of three stab wounds to his torso that occurred on January 30, 2007. Petitioner contends there was evidence at trial that there was no "direct internal injury" from the stab wounds and none of them hit a vital organ. (Exhibit 53, at pp. 10, 14-17, 30). Petitioner contends that evidence showed that the stab wounds themselves "were not lethal." ( Id., at p. 34). Petitioner states that Friedman later underwent an "unnecessary" and "exploratory" abdominal surgery. During surgery, Friedman vomited and he aspirated some of the vomit into his lungs. ( Id., at pp. 11, 27-28). Friedman died from pneumonia ten days after the surgery, on February 9, 2007. ( Id., at pp. 27-28). Petitioner presents a letter from Dr. Bruce J. Hirschfeld, a doctor specializing in general and vascular surgery, who opines in a letter that the evidence at trial raises questions about the true cause of death, but he can only answer those questions if he is able to review Friedman's medical records. (Exhibit 106, at pp. 2-3).
Petitioner contends that the true cause of Friedman's death is relevant to at least two of the claims raised in his federal habeas petition, specifically, Grounds Two and Three. In Ground Two, petitioner claims that counsel was ineffective for failing to move for dismissal of the murder and conspiracy charges based on evidence of an intervening cause of Friedman's death, to wit, the exploratory surgery. (Doc. 18, at pp. 12-16). In Ground Three, petitioner claims that counsel was ineffective for failing to investigate the State's witnesses regarding medical evidence concerning Mr. Friedman. Petitioner claims that an investigation into the State's witnesses would have established that the cause of Friedman's death was not the stabbing, but rather, the surgery. (Doc. 18, at pp. 16-19).
Rule 6(a) of the Rules Governing Section 2254 Cases provides that "[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." In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court held that Rule 6 was meant to be applied consistently with its prior opinion in Harris v. Nelson, 394 U.S. 286 (1969), which expressly called for the adoption of the rule. Bracy, 520 U.S. at 904, 909. In Harris, the Supreme Court held that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." 394 U.S. at 300 (emphasis added). In Bracy, a unanimous Supreme Court overturned a decision denying discovery where the petitioner's claim of judicial bias in his particular case was based on "only a theory, " where the claim was "not supported by any solid evidence" with regard to the theory, and where the Supreme Court expressly noted that "[i]t may well be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support" the theory that the petitioner sought to pursue in ...