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Taukitoku v. Filson

United States District Court, D. Nevada

May 9, 2018

TIMOTHY FILSON, et al. Respondents.



         This counseled habeas matter comes before the court on petitioner's renewed motion for discovery (ECF No. 20). Respondents, for the most part, do not oppose (ECF No. 21). Petitioner has filed a reply (ECF No. 22).

         By way of his discovery motion, petitioner seeks to obtain from the Washoe County District Attorney's Office all materials that were disclosed to defense counsel in advance of or during petitioner's trial. Petitioner has been unable to obtain these materials from prior counsel. Petitioner asserts that discovery is necessary to develop three claims in his petition: (1) Ground Three, which asserts that trial counsel was ineffective for failing to present rebuttal witnesses to the State's prior bad act evidence; (2) Ground Four, which alleges that trial counsel was ineffective for failing to investigate the case; and (3) Ground Eight, which asserts that petitioner's right to due process and a fair trial was violated when the trial court denied the defense's request to continue trial after voluminous disclosures were made on the eve of trial.

         Respondents essentially do not oppose but ask the court to require petitioner to first subpoena his former attorneys in order to compel a thorough search for the documents before burdening the District Attorney. Respondents also ask that petitioner be required to provide a sworn declaration identifying what, if any, missing documents he previously received from his attorneys, as the State should not have to bear the burden of producing documents that were lost through petitioner's own neglect.

         Petitioner's counsel responds that she engaged in a months-long exchange with all five of petitioner's prior attorneys in an effort to obtain the files and - based on their responses - believes they have nothing more to provide. Counsel further argues that there is no indication petitioner has ever been in possession of any documents from his file.

         “A 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, 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.”

         The 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).

         Having considered the parties' arguments and the petition in this case, the court finds good cause to grant petitioner's essentially unopposed discovery request. In review of the petitioner's assertion that his prior attorneys do not have any materials that have not already been turned over, the court concludes it would unnecessarily delay litigation of this case to require petitioner to first subpoena his prior attorneys. The court declines to compel petitioner to submit a sworn declaration as requested by respondents, as the court accepts counsel's representation that petitioner is not in possession of the materials requested in this proceeding.

         The court therefore grants petitioner leave to issue subpoenas to the Washoe County District Attorney's Office in order to obtain any and all materials that were previously disclosed to the defense before and during petitioner's trial to the extent these materials are still in the possession of the District Attorney's office, specifically:

1. All the police reports, including witness identifying information and statements (audio or written), arrest reports, crime reports, officer reports, evidence impound reports, and photographs;
2. All witness identifying information and statements relating to the prior bad act rebuttal evidence that was introduced at trial;
3. Medicals records of the victims, including autopsy reports;
4. All firearm and ballistics ...

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