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United States v. Grimm

United States District Court, D. Nevada

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
STEVEN GRIMM, Defendant/Petitioner.

          ORDER RE: MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 708) RE: MOTION FOR DISCOVERY UNDER HABEAS CORPUS RULE 6(A) (ECF NO. 710) REPORT AND RECOMMENDATION RE: MOTION FOR EVIDENTIARY HEARING PURSUANT TO RULE 8 OF THE RULES GOVERNING § 2255 (ECF NO. 711)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion for Appointment of Counsel (ECF No. 708), Motion for Discovery Under Habeas Corpus Rule 6(a) (ECF No. 710) and Motion for Evidentiary Hearing Pursuant to Rule 8 of the Rules Governing § 2255 (ECF No. 711), filed on November 2, 2018. The Government filed its Response to Defendant's Motion for Discovery (ECF No. 719) on November 16, 2018. To date, no further opposition or reply has been filed and the time for which has now expired. The following Report and Recommendation is issued pursuant to 28 U.S.C. § 636(b).

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant-Petitioner Steven Grimm (“Petitioner”) was charged in a twenty-eight (28) count superseding indictment filed on February 16, 2011. Second Superseding Indictment, (ECF No. 175). A six-week jury trial commenced on October 11, 2011 and a verdict was reached on December 15, 2011. Petitioner was found guilty on fourteen (14) counts as charged in the Second Superseding Indictment. ECF No. 355. On March 23, 2012, Petitioner was sentenced and remanded into custody to serve 25 years in prison, and five years of supervised release, as to each count, concurrent. Judgment, (ECF No. 434). Defendant appealed the Judgement (ECF No. 438) to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”). He subsequently filed two motions for new trial (ECF Nos. 525, 528) on January 20, 2012, which were denied. ECF No. 542. Petitioner filed his Notice of Appeal (ECF No. 549) with respect to denial of his motion for new trial on August 22, 2013.

         Following a Remand Order (ECF No. 628) from the Ninth Circuit, vacating and remanding the judgement and the District Judge's denial of new trial, discovery was conducted, and an evidentiary hearing was held. District Judge James C. Mahan[1] held an evidentiary hearing to determine Petitioner's motion for new trial but ultimately denied his request. Order, (ECF No. 656). Petitioner appealed the District Court's Order (ECF No. 661) to the Ninth Circuit which ultimately affirmed the order denying new trial but vacated and remanded for reconsideration on the appropriate amount of forfeiture. See Memorandum of United States Court of Appeal, (ECF No. 680).

         On November 2, 2018, Grimm filed a series of motions including: Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 707), Motion for Appointment of Counsel (ECF No. 708), Motion to hold in Abeyance § 2255 Motion for 60 Days (ECF No. 709), Motion for Discovery (ECF No. 710), and Motion for Evidentiary Hearing (ECF No. 711). This order will pertain only to Grimm's Motions for Counsel (ECF No. 708), Discovery (ECF No. 710) and Evidentiary Hearing (ECF No. 711).

         DISCUSSION REGARDING MOTION FOR APPOINTMENT OF COUNSEL

         Petitioner moves for appointment of counsel to assist him in prosecuting his 28 U.S.C. § 2255 petition (ECF No. 707). Petitioner argues that he should be appointed counsel because he is not trained in the legal field and has raised complex issues in his 28 U.S.C. § 2255 petition. ECF No. 708. The Government has not responded to Petitioner's motion for appointment of counsel and the time to do so has now expired. On December 26, 2018, Alina M. Shell Esq., filed a Motion to Withdraw as Counsel and indicated the Government was preparing a brief to address whether the forfeiture order violated the Eighth Amendment's prohibition against excessive fines, and to address whether the forfeiture order comports with the United States Supreme Court's opinion in Honeycutt v. United States, 137 S.Ct. 1626 (2017). ECF No. 723. The Court granted Ms. Shell's request for withdrawal and referred the matter to the Criminal Justice Panel. Order, (ECF No. 724). On February 13, 2019, the Court issued an order appointing Sunethra Muralidhara Esq., as substitute counsel in the place of Ms. Shell. ECF No. 725.

         There is no constitutional right to the appointment of counsel in habeas corpus proceedings. McClasky v. Zant, 499 U.S. 467, 495 (1991)(citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). However, the court has discretion to appoint counsel when the interest of justice so requires. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). The interest of justice so requires “when the complexities of the case are such that denial of counsel would amount to a denial of due process.” Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). In the absence of such circumstances, a request for counsel in proceedings under § 2255 is addressed to the sound discretion of the trial court. Id. When a habeas corpus petitioner has a good understanding of the issues and the ability to present forcefully and coherently his contentions, no attorney is legally required. LaMere, 827 F.2d at 626.

         Here, Petitioner has not presented circumstances that justify appointment of counsel. In fact, Petitioner's motions contain a myriad of case law, statutes, exhibits and affidavits, all of which demonstrate that he has sufficient ability to write and articulate the complexity of the legal issues involved in this case. Therefore, the Court recommends Petitioner's request for appointment of counsel be denied, without prejudice.

         DISCUSSION REGARDING MOTION FOR DISCOVERY

         Turning to the Motion for Discovery Under Habeas Corpus Rule 6(a), Petitioner represents discovery is necessary to fully develop the claims raised in his § 2255 petition. The Government, however, argues that discovery is not necessary at this time, in light of the fact that Defendant filed a motion to hold his §2255 in abeyance for 60 days (ECF No. 709) to which the Government does not object. Thus, the Government objects to discovery being held at this time since it appears Defendant will file a supplement to his §2255 motion.

         A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Instead, “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law.” Rules Governing § 2255 Motion, Rule 6(a). Good cause for discovery under Rule 6(a) is shown “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 ….” Id. at 908-09 (quotation and citation omitted).

         Petitioner avers additional discovery is necessary in order for him to obtain evidence which failed to be disclosed before and after trial, up to and including: grand jury testimony, plea deals and an audiotape. The Court finds that no good cause is shown justifying Petitioner's need for discovery because the requested information does not necessarily establish his underlying § 2255 claims related to ineffective assistance of counsel. Moreover, in light of Petitioner's representation that that he will file a supplement to his ...


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