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Slaughter v. Baker

United States District Court, D. Nevada

March 29, 2019

RENEE BAKER, et al., Respondents.



         This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's second motion for leave to conduct discovery (ECF No. 40) and unopposed (with reservation of defenses) motion for leave to file a second amended petition (ECF No. 50). The motion for discovery seeks leave to take one deposition following upon the discovery previously allowed by the Court's grant of petitioner's prior motion for discovery.


         Petitioner Rickie Slaughter challenges his 2012 Nevada state conviction, pursuant to a jury verdict, of multiple offenses arising from a home invasion in Las Vegas.

         Slaughter's identity as one of the perpetrators and where he was at the specific time of the home invasion both were contested issues at trial.

         Regarding identity, Slaughter maintains that: (a) a first photographic lineup was unduly suggestive because his picture was markedly different from the other pictures in the lineup; and (b) the prior discovery established that none of the victims identified Slaughter in a second, allegedly nonsuggestive, photographic lineup. He wants to depose the lead prosecutor at trial, Marc DiGiacomo, regarding the second photographic lineup and his statements at trial allegedly suggesting that one or more victims identified Slaughter in the second lineup. Slaughter maintains that DiGiacomo's testimony, inter alia, “would help develop the record about what the prosecution knew about the outcome of the second photographic lineup, when they knew it, and the factual basis (if any) for the comments Mr. DiGiacomo made in open court.” Grounds 1, 3(a), 4(a), 9(b) & 11(b) in the second amended petition present claims relating to the photographic identification evidence, including a new and unexhausted Brady-Giglio[1] claim in Ground 11(b). (See ECF No. 40, at 4-9; ECF No. 48, at 7-9; ECF No. 50-1, at 2, 5-7, 12-14, 22-28, 37-38, 45-46, 57-58, 59-60 & 62-63.)

         Regarding location, Slaughter maintains that: (a) his alibi defense at trial was that he was halfway across town picking up his girlfriend from work at or shortly after the time of the home invasion and therefore could not have been involved; (b) DiGiacomo objected to and prevented the defense from arguing at trial that the 911 call was received at or close to 7:11 p.m. and secured a court ruling allowing the defense to argue only a timeline where the call initially came in instead closer to 7:00 p.m.; (c) the recent discovery suggests that the 911 call allegedly did indeed come in closer to 7:11 p.m. rather than 7:00 p.m., consistent with the timeline that the defense sought to present at trial in support of Slaughter's alibi defense but that the State successfully prevented the defense from presenting; (d) the recent discovery further suggests that the State withheld substantial evidence impeaching prosecution witness Jeffrey Arbuckle's testimony that Slaughter had not picked up his girlfriend yet when he left at 7:30 p.m., including, inter alia, a prior inconsistent statement by Arbuckle that he instead left work fifteen minutes earlier and evidence that he further had a motive from the outset to lie to hurt Slaughter's alibi defense; and (e) the discovery suggests that the State withheld additional exculpatory evidence confirming that the victims said that the suspects had heavy Jamaican accents, wore wigs, and drove a different type of vehicle than the type that Slaughter allegedly drove. Slaughter wants to depose DiGiacomo regarding, inter alia, what the prosecution knew about the 911 call evidence and further regarding the allegedly withheld exculpatory evidence. Grounds 2, 3(b), 4, 5, 6(a), 6(c), 6(d), 6(e), 7, 9(c), 11(a), and 11(c) in the second amended petition present claims relating to the foregoing, including new and unexhausted: (1) Brady-Giglio claims in Grounds 11(a) and (c); and (2) a Napue[2] claim in Ground 11(c). (See ECF No. 40, at 9-12; ECF No. 50-1, at 2-3, 29-36, 43-56 & 59-64.)

         Governing Law

         Rule 6(a) of the Rules Governing Section 2254 Cases (the “Habeas Rules”) provides that “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure . . . .” In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court held that Rule 6 was meant to be applied consistently with its prior opinion in Harris v. Nelson, 394 U.S. 286 (1969), which expressly called for the adoption of the rule. 520 U.S. at 904 & 909. In Harris, the Supreme Court held that “where 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.” 394 U.S. at 300 (emphasis added). In Bracy, a unanimous Supreme Court overturned a decision denying discovery where the petitioner's claim of judicial bias in his particular case was based on “only a theory, ” where the claim was “not supported by any solid evidence” with regard to the theory, and where the Supreme Court expressly noted that “[i]t may well be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support” the theory that the petitioner sought to pursue in the discovery. 520 U.S. at 908 & 909.

         The Ninth Circuit, consistent with Bracy and Harris, accordingly has held repeatedly that habeas discovery is appropriate in cases where the discovery sought only might provide support for a claim. See, e.g., Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997). See also Osborne v. District Attorney's Office, 521 F.3d 1118, 1133 (9th Cir. 2008), reversed on other grounds, District Attorney's Office v. Osborne, 557 U.S.52 (2009) (in discussing its precedent in Jones as to habeas discovery, the Ninth Circuit reinforced the point that a court should allow discovery that, as emphasized by the Court of Appeals, only “may establish” a factual basis for the petitioner's claim).[3]


          In its prior order, the Court rejected respondents' reliance upon the rule in Cullen v. Pinholster, 563 U.S. 170 (2011), as a basis for denying the discovery sought on the premise that the Court's review on the merits necessarily will be restricted to the record before the state courts. (ECF No. 31, at 1.) Respondents did not file a motion for rehearing from the Court's prior order, but respondents now seek to reargue the point in opposition to the current motion. (ECF No. 46, at 2-3.)

         The Court again is not persuaded.

         Pinholster restricts the consideration of evidence only as to claims that have been adjudicated on the merits by the state courts and that withstand deferential review under AEDPA. There are numerous potential steps to go through before the Court will be at a point where it will be determining whether, in the ...

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