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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES WIRTH,

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Case No. 2:17-cv-00027-RFB-VCF

Petitioner,

ORDER

v.
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ROBERT LEGRAND, et al.,
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Respondents.
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Pro se petitioner Charles Wirth has filed several motions in his 28 U.S.C. § 2254

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habeas matter. In most of the motions, Wirth mainly challenges the court’s order

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granting respondents’ motion for leave to file a supplement to their motion to dismiss

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and/or to withdraw the motion. He has also filed a motion for leave to conduct discovery

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(ECF No. 40). Respondents opposed (ECF No. 41), and Wirth replied (ECF No. 42).

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I.

Motions Related to Respondents’ Motion to Dismiss

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On March 23, 2018, the court permitted respondents to withdraw their motion to

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dismiss without prejudice (ECF No. 29). Respondents had explained that, apparently

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due to a docketing error, they did not review all grounds that Wirth raised, and therefore,

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their motion to dismiss may have been incomplete (ECF No. 27). In the interests of

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clarity, efficiency, and justice, and because Wirth was not prejudiced, the court granted

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respondents’ motion. While Wirth filed motions challenging the court’s order, he has

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also now filed an opposition to respondents’ renewed motion to dismiss (ECF Nos. 32,

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34, 36). The motions challenging the grant of the motion to withdraw are denied.

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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

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may file a response, and the moving party may then file a reply in support of its motion.

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Accordingly, respondents’ reply is properly before the court. Wirth’s motion is denied.

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II.

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In Wirth’s motion for leave to conduct discovery, he lists 17 documents and asks

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the court to order respondents to provide them, along with exhibits 151-160 in this case

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(ECF No. 40). Respondents point out that they have already provided Wirth with

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exhibits 151-160 (ECF No. 41, p. 4).

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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

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under the Federal Rules of Civil Procedure and may limit the extent of discovery.” See

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also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S.

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286, 300 (1969)).

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The Ninth Circuit Court of Appeals has pointed out that “[a] habeas petitioner

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does not enjoy the presumptive entitlement to discovery of a traditional civil litigant.”

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Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (citing Bracy, 520 U.S. at 903-

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05). “Rather, discovery is available only in the discretion of the court and for good

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cause shown....” Id. The court instructed:

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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
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defendants, he was prone to “a sort of compensatory bias against defendants who did

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not bribe [him].” Bracy, 520 U.S. at 905. Although the petitioner had not alleged facts

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sufficient to establish that his particular case was infected by such bias, the Supreme

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Court found that he was nonetheless entitled to conduct discovery based on evidence

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that “lend[ed] support” to an actual bias claim. Id. at 909. Thus, a petitioner seeking

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leave to conduct discovery is not required to show that the requested discovery is likely

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to lead to habeas relief, only that there is “reason to believe” that it “may” do so. Id. at

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908-09.

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However, discovery in a federal habeas action does not necessarily extend to

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unexhausted federal claims. Calderon v. U.S. Dist. Court for the N. Dist. of California

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(“Nicolaus”), 98 F.3d 1102, 1106 (9th Cir. 1996). This court addressed the issue of

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allowing discovery in support of unexhausted habeas claims in considerable depth in

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Sherman v. McDaniel, 333 F.Supp.2d 960 (D. Nev. 2004). Based on a review of Ninth

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Circuit precedent, this court concluded that lack of exhaustion, while perhaps not an

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absolute bar to discovery, is a factor the district court should consider in exercising its

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discretion as to whether to allow discovery. Id. at 969. This court noted that “Bracy did

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not undermine the [Ninth Circuit] Court of Appeals’ concern that discovery should not

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proceed upon unexhausted claims,” and held:

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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.

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Moreover, in Cullen v. Pinholster, 563 U.S. 170, 183–84 (2011), the Supreme

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Court held that if a claim has been adjudicated on the merits by a state court, a federal

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habeas petitioner must overcome the limitations of section 2254(d)(1) based upon the

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record that was before that state court. To show good cause, in addition to any other
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required showing, the petitioner must demonstrate that the documents he seeks to

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obtain can be considered in this federal habeas proceeding under Cullen. Otherwise,

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the parties and custodians of the discovery documents may expend considerable time

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and money in obtaining or producing discovery materials that will have no effect on the

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outcome of the case.

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Here, Wirth was charged with two counts of sexual assault of a child under 14,

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attempted sexual assault of a child under 14, and four counts of lewdness with a child

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under 14 (exhibit 14). 1 He entered an Alford plea to open or gross lewdness; open or

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gross lewdness, second offense; and attempted sexual assault. Exh. 64. In his federal

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habeas petition, he sets forth several claims for relief based on the district court’s denial

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of his motion to withdraw guilty plea, ineffective assistance of trial counsel for allegedly

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failing to investigate witnesses and the victim and for failing to fully advise him of the

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consequences of his guilty plea (ECF No. 11).

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Respondents have moved to dismiss several claims as unexhausted and/or

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noncognizable on federal habeas review (ECF No. 35). In light of that pending motion,

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Wirth’s motion for discovery is, at best, premature. Moreover, Wirth has not

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demonstrated good cause for his discovery requests. He makes general, conclusory

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statements that the requested discovery would reveal falsified documents, establish

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collateral estoppel, show that the victim was bi-polar, support his alibi, and demonstrate

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his actual innocence (ECF No. 40). In the last request, no. 18, Wirth seeks the juvenile

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records of the victim’s brother, without explaining in any way how such records relate to

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his federal habeas claims. The court views Wirth’s discovery motion as nothing more

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than a fishing expedition. Accordingly, the motion for leave to conduct discovery (ECF

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No. 40) is denied.

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III.

Conclusion

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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.

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IT IS THEREFORE ORDERED that the following motions filed by petitioner:

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emergency motion to strike (ECF No. 32); motion for reconsideration (ECF No. 34); and

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motion to strike reply (ECF No. 38) are all DENIED as set forth in this order.

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IT IS FURTHER ORDERED that petitioner’s motion for copy of the petition (ECF

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No. 33) is GRANTED. The Clerk SHALL SEND to petitioner one copy of the petition at

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ECF Nos. 11, 11-1, 11-2.

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IT IS FURTHER ORDERED that petitioner’s motion for leave to conduct
discovery (ECF No. 40) is DENIED.

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DATED: 29th day of August, 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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