United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE
counseled habeas petition comes before the court on
petitioner's third motion for discovery (ECF No. 32).
Respondents have opposed (ECF No. 36), and petitioner has
replied (ECF No. 37).
in this action challenges his state court judgment of
conviction, pursuant to jury trial, of three counts of murder
with a deadly weapon and four counts of assault with use of a
deadly weapon. (ECF No. 19 at 2-3). The court previously
granted petitioner leave to conduct discovery to obtain his
criminal case materials from the District Attorney's
office. Petitioner now asks the court to order the Washoe
County Crime Lab to release the materials underlying the
State expert's evaluation of the ballistics recovered in
charges against petitioner arose from events that took place
on October 28, 2007. After several fights broke out during a
Halloween house party on that night, shots were fired, and
three people died. At one point during the fights, petitioner
brandished a firearm in the house and threatened another
person. He later fired several shots outside. Eyewitness
testimony was presented that petitioner shot one or two
people, including victim Charles Coogan Kelly. (See
Ex. 16 (Tr. 35 (identifying the victim in Exhibit 3 as
Kelly); Ex. 18 (Tr. 357 (testifying that she saw petitioner
shoot the man in Exhibit 3); Ex. 19 (Tr. 546) (testifying
that he saw petitioner shoot one or two
people)). Sali Manu, who was charged alongside
petitioner, was also seen brandishing a gun. Petitioner and
Manu were arrested as they drove away from the party.
Firearms were recovered from both.
partygoer, Andre Lawson, testified that he fired two warning
shots into the air when fighting broke out. Manu did not
testify, and no evidence was presented at trial that he had
fired any shots. There was no evidence at trial of any shots
other than those fired by Lawson and petitioner.
State's ballistics expert, Kevin Lattyak, compared the
projectiles, casings and fragments recovered from the scene
to petitioner's, Manu's and Lawson's firearms.
Lattyak testified that with the exception of two or three
projectiles or fragments, the remaining ballistics evidence
either positively matched petitioner's gun or was
consistent with petitioner's gun. Lattyak further
testified that none of the bullets recovered could have come
from a .32, which is the weapon Manu had, because they were
too big. Two bullets recovered from the body of Charles
Coogan Kelly were postiviely matched to petitioner's gun.
A projectile recovered from Derek Jensen's body bag was
positively matched to petitioner's gun. No. bullets were
recovered from the body or body bag of the third victim,
an investigation for the instant habeas petition, counsel
located and obtained declarations from several eyewitnesses
who claim they saw persons other than petitioner fire shots
during the fights. (ECF No. 33 Exs. 5-10). One person
observed Lawson fire six to seven rounds toward the house
from the street. (Ex. 5). Another person also saw a person
standing in the street, shooting six to eight rounds toward
the house, and that person did not match petitioner's
description. (Ex. 6). Another witness, who refused to go on
the record with petitioner's counsel but whose
observation was at least partially reported to police, also
saw a man wearing a shirt similar to that Lawson wore that
night shooting toward the house. (Exs. 11 & 12). One
person avers he saw someone fitting the description of Manu
shoot toward the garage during the fight and that he
“knew [that person] killed DJ because [he] saw DJ
collapse near the garage door.” (Ex. 8). These reports,
petitioner argues, call into question Lattyak's
conclusion that “virtually all of the bullets and shell
casings, including those recovered from the victims'
bodies, matched or were very similar to those from
[petitioner's] firearm.” (ECF No. 32 at 4).
Petitioner argues that in light of the evidence that two
other people fired shots during the fight,  the ballistics
evidence must be subjected to adversarial testing. To that
end, petitioner seeks release of Lattyak's bench notes
and photographs, on which he based his report, as well as the
physical evidence itself, for review by an independent
expert. (ECF No. 32 at 3).
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
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).
asserts that the discovery sought is in aid of developing
Grounds Four and Eight of the First Amended Petition. In
Ground Four, petitioner alleges that his trial counsel was
ineffective for failing to investigate his case, including by
failing to obtain a ballistics expert. (ECF No. 19 at 14-15).
And in Ground Eight, petitioner asserts that the trial court
violated his rights to due process and a fair trial by
denying defense counsel's motions to continue trial.
(Id. at 25-27). Petitioner admits that both of these
claims are unexhausted.
argue that petitioner should be required to pursue discovery
as to these unexhausted claims in the state courts first.
They further argue that under Cullen v. Pinholster,
563 U.S. 170 (2011), the court's review is limited to the
state court record and that discovery is improper unless the
petitioner can show the evidence would be admissible in an
court agrees that because petitioner seeks discovery only
with respect to unexhausted claims, these claims, and their
related discovery, should be pursued in the state court in
the first instance. The motion for discovery will therefore
be denied. However, the court would likely be inclined to
grant petitioner a motion to stay and abey should he wish to
pursue Grounds Four and/or Eight in state court before
proceeding further in this action.
accordance with the foregoing, IT IS THEREFORE ORDERED that
petitioner's third motion for discovery (ECF No. 32) is
DENIED WITHOUT PREJUDICE.
FURTHER ORDERED that petitioner will have thirty days from
entry of this order to either file a second amended petition
or move for other appropriate relief, ...