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Velasco v. Baker

United States District Court, District of Nevada

March 27, 2015

JUAN ALFONSO NUNO VELASCO, Petitioner,
v.
RENEE BAKER, et al., Respondents.

ORDER

MIRANDA M. DU UNITED STATES 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 are petitioner’s motion for discovery (dkt. no. 17), respondents’ motion to strike the petition (dkt. no. 21), and motions for extensions of time to file the amended petition and the response thereto (dkt. nos. 25 & 20).

I. PROCEDURAL HISTORY

Petitioner signed his pro se federal habeas petition on July 23, 2013, which was received by this Court on August 12, 2013. (Dkt. no. 1-1 at 24.) On October 31, 2013, this Court granted petitioner’s motion for counsel and appointed the Federal Public Defender to represent petitioner in this action. (Dkt. no. 5.) In the order appointing counsel, the Court noted that the pro se petition was written entirely in Spanish. The Court further found that: “It appears that, without the assistance of counsel, petitioner cannot adequately litigate this action.” (Dkt. no. 5, at p. 1.)

On November 5, 2013, the Federal Public Defender’s Office notified the Court of its inability to represent petitioner due to a conflict of interest. (Dkt. no. 9.) On November 12, 2013, the Court appointed CJA panel counsel Jeffrey S. Blanck, Esq., to represent petitioner in this habeas corpus proceeding. (Dkt. no. 10.) On December 5, 2013, Jeffrey S. Blank entered a notice of appearance as petitioner’s counsel of record in this action. (Dkt. no. 11.)

On December 6, 2013, this Court entered a scheduling order that required counsel for petitioner to file an amended petition within ninety (90) days. (Dkt. no. 12.) The order required respondents to file a response to the amended petition within thirty (30) days of being served with the same. By order filed February 27, 2014, the Court granted petitioner’s unopposed motion for an extension of time in which to file the amended petition, such that amended petition was due not later than June 4, 2014. (Dkt. no. 16.)

On June 29, 2014, petitioner filed a motion allowing him to conduct discovery in this case. (Dkt. no. 17.) Respondents have opposed petitioner’s motion for discovery. (Dkt. no. 18.) Petitioner has filed a reply to the opposition. (Dkt. no. 20.)

On May 19, 2014, petitioner filed an English translation of the original petition. (Dkt. no. 19-1.) Respondents have filed a motion to strike the English translation of the original petition. (Dkt. no. 21.) Petitioner opposes respondents’ motion to strike. (Dkt. no. 24.) Respondents have filed a reply to the opposition. (Dkt. no. 27.)

II. DISCUSSION

A. Petitioner’s Motion for Discovery

Petitioner requests permission to conduct discovery in this case. Petitioner contends that, in order to properly formulate the grounds of the amended petition, he needs the information sought in his discovery motion. Petitioner points out that in state court, this case did not go to trial, as petitioner entered a guilty plea to second degree murder with the use of a deadly weapon. Petitioner asserts that there was sparse evidence presented in the state court justifying petitioner’s guilty plea. Petitioner asserts that his counsel in the state court failed to develop evidence, and for this very reason, his federal habeas counsel needs to conduct discovery in this case before filing an amended petition.

In the original habeas petition, petitioner asserts claims of ineffective assistance of counsel, violation of his due process rights to a speedy and fair trial, including the ability to confront witnesses, that his confession was obtained by coercion and threats, and actual innocence. (Dkt. nos. 19 & 19-1.)

Petitioner’s motion for discovery outlines the facts, as known to him: Petitioner and his cousin Uriel Barajas-Velasco were charged in Washoe County, Nevada with the murder of Antoinette Howard, which occurred sometime between March 31, 2002, and April 1, 2002. Petitioner and co-defendant were also charged with robbery with the use of a deadly weapon, and kidnaping in the first degree. According to the State, Howard was shot at a motel in Reno, Nevada. There is other evidence that Howard was placed in the truck of a car while she was still alive and was driven to California, where she was shot in the head. A CalTrans worker found Howard’s body on April 9, 2002, in a wetlands area off Highway 165 in Merced County, California. Petitioner was arrested in Fresno, California and charged in California with murder, attempted murder, assault, and discharging a firearm into an occupied vehicle. Petitioner was interviewed by detectives at the Fresno County Detention Center. A Nevada warrant was issued for petitioner on pending charges of murder, kidnaping, and armed robbery. Within the State’s criminal case records, there were conflicting opinions regarding whether the proper jurisdiction of this case was California or Nevada. The Fresno County Superior Court twice refused to extradite petitioner and only did so after the issuance of a Governor’s Warrant. Petitioner arrived at the Washoe County Detention Center on July 26, 2002, where he was held for 1, 627 days (over four years) before his sentencing.

Petitioner seeks permission to conduct discovery of the following information: (a) physical evidence, documents, and testing results regarding the forensic analysis of “Crime Scene 1” (motel room in Reno, Nevada) and unknown items of evidence from “Crime Scene 2” (where Howard’s body was found off Highway 165 in Merced County, California); (b) information concerning all fingerprints taken at both crime scenes; (c) information regarding Merced County Sheriff’s Case No. 02-11415 in the custody of the Merced County Sheriff’s Office; (d) information regarding Merced County Sheriff’s Case No. 02-11415 in the custody of the Merced County Coroner’s Office; (e) information regarding Fresno County Sheriff’s Case Nos. 02-7823, 02-7853, 02-9853, and 01-28818; and (f) documents, physical evidence and other reports, telephone records, notes, declarations, witness statements, medical reports, test results, photographs, correspondence, e-mails and any and all other documents and evidence (including witnesses Alvaro ...


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