United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court are Petitioner's motion for leave to conduct
discovery (“Motion”) (ECF No. 22),
Respondents' opposition (ECF No. 25), and
Petitioner's reply (ECF No. 27). The Court denies
Petitioner's Motion because it is unclear now whether
Petitioner can receive relief on the claim that would be
affected by the discovery.
court may authorize discovery upon a showing of good cause.
Rule 6, Rules Governing Section 2254 Cases in the United
States District Courts. “‘[W]here 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.'” Bracy v.
Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris
v. Nelson, 394 U.S. 286, 300 (1969)).
seeks discovery regarding ground 3. Petitioner claims that
trial counsel either did not convey a favorable plea offer
from the prosecution to him or advised Petitioner
inappropriately to decline the offer. (ECF No. 19 at 15-17);
see also Missouri v. Frye, 566 U.S. 134 (2012);
Lafler v. Cooper, 566 U.S. 156 (2012). Petitioner
asks the Court to authorize discovery to obtain records from
the prosecution's office about any plea offers, to depose
any prosecutors or former prosecutors who represented the
prosecution in his case, and any other reasonable discovery.
(ECF No. 22 at 2.)
point in the proceedings, it is unclear whether Petitioner
can receive any relief on ground 3 because that ground
appears to be untimely under 28 U.S.C. § 2244(d)(1)(A).
The Nevada Supreme Court affirmed the judgment of conviction
on direct appeal on March 17, 2011. (ECF No. 19 at 6-7.) The
judgment of conviction became final with the expiration of
time to file a petition for a writ of certiorari in the
Supreme Court of the United States on June 15, 2011. 147 days
later, on November 9, 2011, Petitioner filed a
post-conviction habeas corpus petition in the state district
court. (Id. at 7.)The pending state post-conviction
proceedings tolled the one-year period under 28 U.S.C. §
2244(d)(2). The state post-conviction proceedings concluded
on November 15, 2016, when the Nevada Supreme Court issued
its remittitur after the Nevada Court of Appeals had affirmed
the denial of the petition. (Id. at 9.) 90 days
after issuance of the remittitur, on February 13, 2017,
Petitioner effectively commenced this action when he mailed
his original, pro se petition (ECF No. 7) to the
Court. A total of 237 non-tolled days had passed, and the
original petition is timely. The mailing of the original
petition does not stop the one-year period from running.
Duncan v. Walker, 533 U.S. 167, 181-82 (2001). The
Court appointed counsel to represent Petitioner. (ECF No. 6.)
595 days after issuance of the remittitur, on July 3, 2018,
Petitioner filed his amended petition (ECF No. 19). A total
of 742 non-tolled days had passed, and the grounds in the
amended petition will need to relate back to the original
petition to be timely.
amended habeas corpus petition “does not relate back
(and thereby escape [28 U.S.C. § 2244(d)(1)'s]
one-year time limit) when it asserts a new ground for relief
supported by facts that differ in both time and type from
those the original pleading set forth.” Mayle v.
Felix, 545 U.S. 644, 650 (2005). Relation back is
allowed “[s]o long as the original and amended
petitions state claims that are tied to a common core of
operative facts . . . .” (Id. at 664.)
3 does not appear to relate back. The Court has reviewed
Petitioner's original petition (ECF No. 6). The Court
cannot find any allegations about a plea offer, let alone
deficient performance by counsel about that plea offer,
anywhere in the original petition. Petitioner asserts claims
of ineffective assistance of counsel in the original
petition, but those claims have nothing to do with any
possible plea offer. Ground 3 could not relate back to those
claims. See Schneider v. McDaniel, 674 F.3d 1144,
1150-52 (9th Cir. 2012).
these circumstances, granting leave to conduct discovery is
at least premature, and possibly futile. The Court first
needs to determine whether ground 3 can survive. The Court
will deny the Motion and direct Respondents to file a
response to the amended petition. If ground 3 survives a
motion to dismiss, then Petitioner may renew his motion for
leave to conduct discovery.
therefore ordered that Petitioner's motion for leave to
conduct discovery (ECF No. 22) is denied.
further ordered that Respondents will have 45 days from the
date of entry of this order either to file a motion to
dismiss or to file a notice that they will not file a motion
to dismiss. If Respondents file a motion to dismiss, then
they must raise all potential affirmative defenses that exist
at the time in the initial responsive pleading, including
lack of exhaustion, procedural default, and untimeliness.
further is ordered that if Respondents file and serve a
motion to dismiss, then Petitioner will have 45 days from the
date of service of the motion to file a response to the
motion. Respondents then will have 21 days from the date of
service of the response to file a reply.
further is ordered that if Respondents file a motion to
dismiss but do not move to dismiss ground 3, then Petitioner
will have 21 days from the date of service of the motion to
renew his motion for leave to conduct discovery. In such a
circumstance, the Court's objective would be to resolve
the motion to dismiss and the motion for leave to conduct
further is ordered that if Respondents file a notice that
they will not file a motion to dismiss, then Petitioner will
have 21 days from the date of service of the notice ...