Weber v. Cortez Masto

Filing 15

ORDER. IT IS HEREBY ORDERED that petitioner's 9 Motion for Transport of Petitioner for Medical Examination is DENIED. Signed by Judge Philip M. Pro on 7/11/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TIMMY JOHN WEBER,

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Petitioner,

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vs.

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3:11-cv-0104-PMP-RAM

E.K. McDANIEL, et al.,

ORDER
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Respondents.
_______________________________/

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This capital habeas corpus action was initiated February 11, 2011, when the petitioner,

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Timmy John Weber, filed a pro se habeas petition (docket #1). On February 16, 2011, the court

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granted Weber’s motion for appointment of counsel, and appointed the Federal Public Defender for

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the District of Nevada (FPD) to represent him (docket #4). Counsel appeared on Weber’s behalf on

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March 1, 2011 (docket #5), and counsel for respondents appeared on March 3, 2011 (docket #6).

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On June 27, 2011, the court held a telephonic status conference, at which counsel for Weber and

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counsel for respondents appeared, and, following that conference, the court entered an order setting

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a schedule for further litigation of this action (docket #7, #8, #11, #12).

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On June 16, 2011, Weber filed a “Motion for Transport of Petitioner for Medical

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Examination” (docket #9). Respondents filed an opposition to that motion on June 24, 2011

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(docket #10). Petitioner filed a reply, in support of the motion, on July 5, 2011 (docket #14). At

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the status conference on June 27, 2011, the court entertained argument by counsel regarding the

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motion. The court will deny the motion, without prejudice.

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Weber requests that the court order respondent Warden E.K. McDaniel to transport him to a

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medical facility in Las Vegas, Nevada, for a neurological examination, and then, subsequent to that,

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an MRI and PET scan of his brain. See Motion (docket #9), pp. 4-5. Weber seeks the examination,

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the MRI, and the PET scan, to further develop “a claim of ineffective assistance of counsel arising

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from trial counsel’s failure to conduct an adequate mental health examination of Mr. Weber, and

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specifically trial counsel’s failure to investigate and present evidence of Mr. Weber’s brain damage

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to the jury.” Id. at 3. According to Weber, he raised such a claim in state court (see id. at 3), and in

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his pro se habeas petition in this action by incorporation (see id. at 3), and he will include such a

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claim in his amended habeas petition, which is due to be filed by October 7, 2011 (see Order

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entered June 27, 2011) and which, according to Weber, will be filed in August 2011 (see Motion,

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p. 4).

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Weber’s motion for transport, is essentially a motion for leave to conduct discovery, and is

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premature. As reflected in the scheduling order in this case, the court’s practice, in capital habeas

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corpus cases is, generally, to entertain motions for leave to conduct discovery only after an amended

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petition is filed, after the complete state-court record is filed, and after briefing is begun regarding

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either a motion to dismiss or the merits of claims. See Order entered June 27, 2011. This timing

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helps insure that time-consuming and expensive discovery is not undertaken with respect to claims

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that are not procedurally viable, or claims that for other reasons do not warrant discovery. At this

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early stage of this case – before Weber’s claim is properly set forth in an amended petition, before

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the state-court record has been filed, and before any procedural challenges to the claim have been

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asserted – the court cannot properly gauge the need for this discovery.

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Weber has not shown, and, in fact has not even alleged, that the medical examination, MRI,

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and PET scan are necessary for him to be able to plead in his amended petition the claim to which

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those would relate. On the contrary, Weber asserts that he has previously raised the claim in state

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court, has raised it, by incorporation, in his pro se petition in this court, and plans to plead it in his

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amended petition. Weber has not shown any reason why this discovery cannot be done after the

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claim is pled in the amended petition, the state-court record is filed, and respondents have asserted

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any procedural challenges to the subject claim.

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The court will, therefore, deny Weber’s motion. The denial of the motion, however, is

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without prejudice to Weber making another such motion at an appropriate time, as described in the

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order entered on June 27, 2011. The court does not mean, in this order, to convey any impression

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regarding whether or not the discovery sought by Weber might eventually be warranted in this

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action.

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IT IS THEREFORE ORDERED that petitioner’s Motion for Transport of Petitioner for
Medical Examination (docket #9) is DENIED.

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DATED: July 8, 2011.
July 11, 2011.

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PHILIP M. PRO
United States District Judge

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