United States District Court, D. Nevada
before the court is petitioner Michael Tracy McLaughlin's
motion for deposition in lieu of live testimony. (ECF No.
100). Respondents State of Nevada and Brian Williams filed a
response, (ECF No. 107), to which petitioner replied, (ECF
before the court is petitioner's motion in
limine to admit witness testimony. (ECF No. 99).
Respondents filed a response, (ECF No. 106), to which
petitioner replied, (ECF No. 109).
a habeas corpus proceeding where petitioner challenges his
state court convictions. As the parties are familiar with the
facts of the case, the court will not recite them herein.
November 4, 2016, the Ninth Circuit issued an order in the
instant case vacating and remanding this court's denial
of relief on petitioner's claims. The Ninth Circuit
opinion stated, in relevant part,
The new evidence here consists of sworn declarations from
Petitioner's mother, Petitioner's half-brother, and
an investigator who worked for Petitioner's federal
habeas lawyer. . . . [Assuming the truth of Petitioner's
allegations, ] Petitioner has established cause and prejudice
under Martinez. The new evidence bears on both the
strength of the voluntary intoxication defense and
Petitioner's trial lawyer's deficient performance to
such an extent that it “fundamentally alters” the
claim. . . . [M]uch of the new evidence clearly could have
had an effect on the state habeas court's resolution of
the prejudice prong of the underlying IAC claim. For
instance, had Petitioner's state habeas counsel known of
the new evidence, he could have shown that trial counsel was
able to establish Petitioner's level of intoxication at
trial without putting Petitioner on the stand, thus making a
voluntary intoxication defense more viable.
(ECF No. 76 at 4). The Ninth Circuit remanded the case to
this court for purposes of conducting an evidentiary hearing
to resolve any contested issues of fact.
Motion for deposition in lieu of live testimony
Federal Rules of Civil Procedure govern an evidentiary
hearing in a § 2254 proceeding. See Rule 12, Rules
Governing Section 2254 Cases. Under Rule 45(c)(1)(A), a party
has the power to subpoena a witness to attend a hearing
within 100 miles of the location of the hearing. Fed.R.Civ.P.
45(c)(1)(A). A court may order a witness to appear at a
hearing if the witness “resides, is employed, or
regularly transacts business in person” within 100
miles of the location of the hearing. Id. Rule 45
alternatively provides parties with the power to subpoena a
witness to attend a deposition within 100 miles of the place
the witness “resides, is employed, or regularly
transacts business in person.” Id. Under Rule
32(a)(4), a witness outside of the 100-mile area of the
location of the hearing is deemed unavailable, and courts may
allow a moving party to admit a deposition of the witness at
a hearing. Fed.R.Civ.P. 32(a)(4).
Motion in limine
court must decide any preliminary question about whether . .
. evidence is admissible.” Fed.R.Evid. 104. Motions
in limine are procedural mechanisms by which the
court can make evidentiary rulings in advance of trial, often
to preclude the use of unfairly prejudicial evidence.
United States v. Heller, 551 F.3d 1108, 1111-12 (9th
Cir. 2009); Brodit v. Cambra, 350 F.3d 985, 1004-05
(9th Cir. 2003).
the Federal Rules of Evidence do not explicitly authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to
manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n.4 (1980). Motions in
limine may be used to exclude or admit evidence in
advance of trial. See Fed. R. Evid. 103; United
States v. Williams, 939 F.2d 721, 723 (9th Cir. 1991)
(affirming district court's ruling in limine
that prosecution could admit impeachment evidence under
Federal Rule of Evidence 609).
have broad discretion when ruling on motions in
limine. See Jenkins v. Chrysler Motors Corp.,
316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v.
Gates, 99 F.3d 911, 922 (9th Cir. 1999) (“The
district court has considerable latitude in performing a Rule
403 balancing test and we will uphold its decision absent
clear abuse of discretion.”). “[I]n limine
rulings are not binding on the trial judge [who] may always
change his mind during the course of a trial.”
Ohler v. United States, 529 U.S. 753, 758 n.3
(2000); accor ...