United States District Court, D. Nevada
LEONARD O. FRANKLIN, Petitioner,
STATE OF NEVADA, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
pro se habeas matter comes before the Court on
petitioner's motion for discovery (ECF No. 37) and
renewed motion for appointment of counsel (ECF No. 38).
Respondents have opposed (ECF Nos. 43 & 44), and
petitioner has replied (ECF Nos. 45 & 46).
initiated this action in July 2015 with the filing of a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The Court ordered respondents to answer or
otherwise respond to the petition in November 2015.
Respondents moved to dismiss. Following resolution of the
motion to dismiss, respondents answered the petition and
petitioner replied. As of September 15, 2017, the matter
stands ready for review on the merits.
than a week after filing his reply to the respondents'
answer,  more than six months after the Court ruled
on respondents' motion to dismiss, and more than two
years after initiating this action, petitioner filed a
renewed motion for appointment of counsel and, for the first
time, a motion for discovery.
habeas petitioner does not enjoy the presumptive entitlement
to discovery of a traditional civil litigant.” Rich
v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (citing
Bracy v. Gramley, 520 U.S. 899, 903-05). Discovery
in habeas matters is governed by Rule 6 of the Rules
Governing Section 2254 Cases in the United States District
Courts, which states: “A party shall be entitled to
invoke the processes of discovery available under the Federal
Rules of Civil Procedure if, and to the extent that, the
judge in the exercise of his discretion and for good cause
shown grants leave to do so, but not otherwise.”
Supreme Court has construed Rule 6, holding that if through
“specific allegations before the court, ” the
petitioner can “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.” Bracy,
520 U.S. at 908-09 (quoting Harris v. Nelson, 394
U.S. 286, 300 (1969)). This inquiry is informed by the
essential elements of the claims for which petitioner seeks
discovery. Id. at 904. Thus, the purpose of
discovery in a habeas proceeding is not to develop new
claims, but, rather, to develop factual support for specific
allegations contained in existing claims. See also
Rich, 187 F.3d at 1067 (“Habeas is an important
safeguard whose goal is to correct real and obvious wrongs.
It was never meant to be a fishing expedition for habeas
petitioners to ‘explore their case in search of its
existence.'”). Moreover, additional factors may
influence whether the court grants leave to conduct
discovery. See, e.g., Sherman v. McDaniel, 333
F.Supp.2d 960, 969 (D. Nev. 2004) (noting that the court, in
exercising its discretion under Rule 6, should take into
consideration whether the claims to which petitioner's
proposed discovery relates are exhausted in state court).
information sought by petitioner in his motion for discovery
includes, but is not limited to, depositions of all
witnesses, all information in his trial attorney's case
file, and all information in the possession of the D.A. (ECF
No. 37.) Petitioner's motion for discovery will be denied
for several reasons as petitioner has failed to establish
most of what petitioner seeks is in his case file. As
petitioner himself admits, he was offered the opportunity to
review the discovery in his file before entering his guilty
plea, but he chose not to do so. Petitioner's
post-conviction counsel had petitioner's file, and
petitioner has not explained why he could not-or has not to
this point-sought to obtain his file from post-conviction
counsel. (See ECF Nos. 16-9 (Ex. 60) & 16-10
insofar as the information petitioner seeks is not in the
case file, petitioner has not shown that he attempted to
obtain this information during state court habeas
proceedings. Even if petitioner could somehow overcome the
bar of § 2254(d)(1) and (d)(2), which restrict this
Court's consideration of his claims to the record before
the state court, Cullen v. Pinholster, 563 U.S. 170,
186 (2011), petitioner's lack of diligence during his
state court proceedings precludes his request for discovery
in these proceedings except under limited circumstances,
which petitioner has not shown to exist. See 28
U.S.C. § 2254(e)(2); Kemp v. Ryan, 638 F.3d
1245, 1258-60 (9th Cir. 2011).
petitioner has unduly delayed in seeking discovery. This
matter had been pending for more than two years by the time
he filed his motion for discovery, and six months had passed
since the Court's order on respondents' motion to
dismiss. Petitioner's decision to wait until his petition
was ripe for review on the merits to seek discovery also
weighs against a finding of good cause.
petitioner's motion is overbroad, speculative, and
“exactly the kind of fishing expedition [the courts]
are admonished not to permit.” Earp v. Davis,
881 F.3d 1135, 1144 (9th Cir. 2018). Petitioner has failed to
establish good cause.
to petitioner's motion for appointment of counsel, there
is no constitutional right to appointed counsel for a federal
habeas corpus proceeding. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d
425, 428 (9th Cir. 1993). The decision to appoint counsel is
generally discretionary. Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S.
1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234
(9th Cir.), cert. denied, 469 U.S. 838 (1984).
However, counsel must be appointed if the complexities of the
case are such that denial of counsel would amount to a denial
of due process, and where the petitioner is a person of such
limited education as to be incapable of fairly presenting his
claims. See Chaney, 801 F.2d at 1196; see also
Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The
petition in this case is sufficiently clear in presenting the
issues that petitioner wishes to raise, and the issues are
not complex. Therefore, the Court concludes that counsel is
not justified in this case, and the motion for appointment of
counsel will again be denied.
reasons stated herein, it is ordered that petitioner's
motion for discovery (ECF No. 37) is denied.
further ordered that petitioner's motion for appointment