United States District Court, D. Nevada
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)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
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).
AND PROCEDURAL BACKGROUND
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,
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 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).
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).
REGARDING MOTION FOR APPOINTMENT OF COUNSEL
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.
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.
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.
REGARDING MOTION FOR DISCOVERY
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
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).
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