Wirth v. LeGrand et al

Filing 43

ORDER denying 32 Motion to Strike; ORDER granting 33 Motion; ORDER denying 34 Motion for Reconsideration; ORDER denying 38 Motion to Strike; ORDER denying 40 Motion for Leave to File Document; Signed by Judge Richard F. Boulware, II on 8/29/2018. (Copies have been distributed pursuant to the NEF, cc: Petition to P - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 CHARLES WIRTH, 8 Case No. 2:17-cv-00027-RFB-VCF Petitioner, ORDER v. 9 ROBERT LEGRAND, et al., 10 Respondents. 11 12 Pro se petitioner Charles Wirth has filed several motions in his 28 U.S.C. § 2254 13 habeas matter. In most of the motions, Wirth mainly challenges the court’s order 14 granting respondents’ motion for leave to file a supplement to their motion to dismiss 15 and/or to withdraw the motion. He has also filed a motion for leave to conduct discovery 16 (ECF No. 40). Respondents opposed (ECF No. 41), and Wirth replied (ECF No. 42). 17 I. Motions Related to Respondents’ Motion to Dismiss 18 On March 23, 2018, the court permitted respondents to withdraw their motion to 19 dismiss without prejudice (ECF No. 29). Respondents had explained that, apparently 20 due to a docketing error, they did not review all grounds that Wirth raised, and therefore, 21 their motion to dismiss may have been incomplete (ECF No. 27). In the interests of 22 clarity, efficiency, and justice, and because Wirth was not prejudiced, the court granted 23 respondents’ motion. While Wirth filed motions challenging the court’s order, he has 24 also now filed an opposition to respondents’ renewed motion to dismiss (ECF Nos. 32, 25 34, 36). The motions challenging the grant of the motion to withdraw are denied. 26 27 Wirth also moves to strike respondents’ reply in support of their renewed motion to dismiss. Local Rule 7-2(b) provides that a party may file a motion, the opposing party 28 1 1 may file a response, and the moving party may then file a reply in support of its motion. 2 Accordingly, respondents’ reply is properly before the court. Wirth’s motion is denied. 3 II. 4 In Wirth’s motion for leave to conduct discovery, he lists 17 documents and asks 5 the court to order respondents to provide them, along with exhibits 151-160 in this case 6 (ECF No. 40). Respondents point out that they have already provided Wirth with 7 exhibits 151-160 (ECF No. 41, p. 4). 8 9 Motion for Leave to Conduct Discovery Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts states: “A judge may, for good cause, authorize a party to conduct discovery 10 under the Federal Rules of Civil Procedure and may limit the extent of discovery.” See 11 also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 12 286, 300 (1969)). 13 The Ninth Circuit Court of Appeals has pointed out that “[a] habeas petitioner 14 does not enjoy the presumptive entitlement to discovery of a traditional civil litigant.” 15 Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (citing Bracy, 520 U.S. at 903- 16 05). “Rather, discovery is available only in the discretion of the court and for good 17 cause shown....” Id. The court instructed: 18 19 20 21 22 23 24 25 26 27 28 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.” Rich, 187 F.3d at 1067 (quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996)). Accordingly, a habeas petitioner will not be granted leave to conduct discovery based on allegations that are purely speculative or without any basis in the record. On the other hand, a petitioner is not necessarily required to plead specific facts entitling him to habeas relief prior to obtaining leave to conduct discovery. Indeed, based on the Supreme Court’s decision in Bracy, a petitioner may be able to establish “good cause” for discovery even though he posits only a plausible “theory” for relief. In Bracy, the petitioner sought discovery to support a claim that, because the judge in his case was convicted of taking of bribes from some criminal 2 1 defendants, he was prone to “a sort of compensatory bias against defendants who did 2 not bribe [him].” Bracy, 520 U.S. at 905. Although the petitioner had not alleged facts 3 sufficient to establish that his particular case was infected by such bias, the Supreme 4 Court found that he was nonetheless entitled to conduct discovery based on evidence 5 that “lend[ed] support” to an actual bias claim. Id. at 909. Thus, a petitioner seeking 6 leave to conduct discovery is not required to show that the requested discovery is likely 7 to lead to habeas relief, only that there is “reason to believe” that it “may” do so. Id. at 8 908-09. 9 However, discovery in a federal habeas action does not necessarily extend to 10 unexhausted federal claims. Calderon v. U.S. Dist. Court for the N. Dist. of California 11 (“Nicolaus”), 98 F.3d 1102, 1106 (9th Cir. 1996). This court addressed the issue of 12 allowing discovery in support of unexhausted habeas claims in considerable depth in 13 Sherman v. McDaniel, 333 F.Supp.2d 960 (D. Nev. 2004). Based on a review of Ninth 14 Circuit precedent, this court concluded that lack of exhaustion, while perhaps not an 15 absolute bar to discovery, is a factor the district court should consider in exercising its 16 discretion as to whether to allow discovery. Id. at 969. This court noted that “Bracy did 17 not undermine the [Ninth Circuit] Court of Appeals’ concern that discovery should not 18 proceed upon unexhausted claims,” and held: 19 20 21 22 This court will not grant the sort of wide-ranging discovery sought by petitioner without a showing that he has exhausted in state court, and has not procedurally defaulted, the claims on which his proposed discovery is based. To do so would tend to undermine the exhaustion requirement, and the doctrine of federal-state comity on which it rests. Id. at 968-969. 23 24 25 Moreover, in Cullen v. Pinholster, 563 U.S. 170, 183–84 (2011), the Supreme 26 Court held that if a claim has been adjudicated on the merits by a state court, a federal 27 habeas petitioner must overcome the limitations of section 2254(d)(1) based upon the 28 record that was before that state court. To show good cause, in addition to any other 3 1 required showing, the petitioner must demonstrate that the documents he seeks to 2 obtain can be considered in this federal habeas proceeding under Cullen. Otherwise, 3 the parties and custodians of the discovery documents may expend considerable time 4 and money in obtaining or producing discovery materials that will have no effect on the 5 outcome of the case. 6 Here, Wirth was charged with two counts of sexual assault of a child under 14, 7 attempted sexual assault of a child under 14, and four counts of lewdness with a child 8 under 14 (exhibit 14). 1 He entered an Alford plea to open or gross lewdness; open or 9 gross lewdness, second offense; and attempted sexual assault. Exh. 64. In his federal 10 habeas petition, he sets forth several claims for relief based on the district court’s denial 11 of his motion to withdraw guilty plea, ineffective assistance of trial counsel for allegedly 12 failing to investigate witnesses and the victim and for failing to fully advise him of the 13 consequences of his guilty plea (ECF No. 11). 14 Respondents have moved to dismiss several claims as unexhausted and/or 15 noncognizable on federal habeas review (ECF No. 35). In light of that pending motion, 16 Wirth’s motion for discovery is, at best, premature. Moreover, Wirth has not 17 demonstrated good cause for his discovery requests. He makes general, conclusory 18 statements that the requested discovery would reveal falsified documents, establish 19 collateral estoppel, show that the victim was bi-polar, support his alibi, and demonstrate 20 his actual innocence (ECF No. 40). In the last request, no. 18, Wirth seeks the juvenile 21 records of the victim’s brother, without explaining in any way how such records relate to 22 his federal habeas claims. The court views Wirth’s discovery motion as nothing more 23 than a fishing expedition. Accordingly, the motion for leave to conduct discovery (ECF 24 No. 40) is denied. 25 III. Conclusion 26 27 28 1 Exhibits referenced in this order are exhibits to respondents’ first motion to dismiss, ECF No. 17, and are found at ECF Nos. 18-24. 4 1 IT IS THEREFORE ORDERED that the following motions filed by petitioner: 2 emergency motion to strike (ECF No. 32); motion for reconsideration (ECF No. 34); and 3 motion to strike reply (ECF No. 38) are all DENIED as set forth in this order. 4 IT IS FURTHER ORDERED that petitioner’s motion for copy of the petition (ECF 5 No. 33) is GRANTED. The Clerk SHALL SEND to petitioner one copy of the petition at 6 ECF Nos. 11, 11-1, 11-2. 7 8 IT IS FURTHER ORDERED that petitioner’s motion for leave to conduct discovery (ECF No. 40) is DENIED. 9 10 11 DATED: 29th day of August, 2018. 12 13 14 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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