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Perez v. State

United States District Court, D. Nevada

January 14, 2020

GLADYS PEREZ, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER (ECF NOS. 122, 124)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by petitioner Gladys Perez, a Nevada prisoner who is represented by counsel. Perez filed a Motion to Compel Discovery from Attorney Brett Whipple (ECF No. 122) and Motion to Extend Time to Complete Discovery (ECF No. 124). The respondents do not oppose these motions. For the reasons discussed below, the motions are granted.

         BACKGROUND

         The facts and procedural history of this case are set forth in my September 30, 2019 Order. ECF No. 119. As relevant to the pending motions, I granted Perez's motion for discovery in part, finding that “limited discovery is appropriate to ensure that facts alleged in Perez's tolling claims regarding post-conviction counsel are fully developed.” Id.. at 17:7-8. Thus, I allowed discovery for the following requests:

         From Brett Whipple, Esq. and/or the Justice Law Center:

a. Any part of Perez's file, be it physical or electronic, that remains in Bret Whipple's custody or control, including all incoming and outgoing correspondence. Specifically, Perez seeks the seven boxes of her file that trial counsel gave to Whipple but which Whipple never provided to the FPD. If these boxes no longer exist, Whipple must provide Perez with a written declaration explaining why.
b. A list of people who worked at or with the Justice Law Center from September 4, 2012, to February 4, 2015, who worked on Perez's case in any capacity. If no such list exists or cannot be complied, Whipple must provide Perez with a written declaration explaining why.
c. Records detailing the total number of criminal cases handled by the Justice Law Center and Whipple in any court between September 4, 2012, to February 4, 2015, including the number of capital cases handled during that time, and the individual caseloads of each attorney, investigator, paralegal, or legal assistant who worked on Perez's case.
d. Any billing or time-keeping records detailing how much time each attorney, investigator, paralegal, or legal assistant spent working on Perez's case.

Id. at 22:6-23. I ordered that discovery must be completed by January 2, 2020. Id. at 23:1.

         Perez's motion to compel indicates that Whipple was served with a subpoena on October 4, 2019. Despite counsel's good faith effort to obtain the subpoenaed information, Whipple has only partially complied with the subpoena. After multiple attempts to coordinate with Whipple, he eventually provided eight boxes of case materials to Perez's counsel. But he did not provide any records to satisfy the remainder of the subpoena requests. Nor did he provide a written declaration stating why he was unable to fully comply with the subpoena or assert any objection or privilege. As such, Perez asks me to order Whipple to produce:

a. Gladys's electronic file, including all incoming and outgoing correspondence;
b. A list of people who worked at or with the Justice Law Center from September 4, 2012, to February 4, 2015, who worked on Gladys's case in any capacity;
c. Records detailing the total number of criminal cases handled by the Justice Law Center and Whipple in any court between September 4, 2012, to February 4, 2015, including the number of capital cases handled during that time, and the individual caseloads of each attorney, ...

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