Rodney v. Baker et al

Filing 73

ORDER granting Petitioner's ECF No. 65 Motion for Discovery; denying without prejudice Petitioner's ECF No. 66 Motion for Evidentiary Hearing; directing Petitioner to notify Court when outlined discovery is completed; directing each party to provide the other with all relevant medical records; granting Petitioner's ECF No. 67 Motion to Seal. Signed by Judge Robert C. Jones on 9/22/2020. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KYLE J. RODNEY,

Case No. 3:13-cv-00323-RCJ-VPC
Petitioner,

v.

ORDER

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WILLIAM GITTERE, et al.,
Respondents.

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On March 1, 2019, the United States Court of Appeals for the Ninth Circuit issued an

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opinion vacating this court’s final order denying habeas relief and remanding the case for

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additional proceedings. Rodney v. Filson, 916 F.3d 1254 (9th Cir. 2019). The order denying relief

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was vacated because the court of appeals determined this court erred by not conducting an

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analysis of the substantiality of Rodney’s ineffective-assistance-of-counsel (IAC) claims

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pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Id. at 1259-60. At the center of these IAC

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claims are unresolved questions both as to the severity of injuries Rodney’s victim, Ralph

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Monko, sustained as a result of Rodney’s criminal conduct and as to defense counsel’s

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performance in relation the medical evidence presented (or not presented) at trial. Id. at 1258,

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1261. Accordingly, the court of appeals suggested that this court further develop the record by

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allowing discovery and, if necessary, holding an evidentiary hearing. Id. at 1262.

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To carry out the higher court’s remand, this court permitted the parties to file any motion
relevant to, or in furtherance of, the remand. ECF No. 63.

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1. Respondents’ Response.

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In their response to this court’s order on remand, respondents ask the court to order that

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petitioner provide all of the medical records petitioner possesses in relation to this matter. ECF

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No. 64. Respondents also propose that this court allow the parties to brief the substantiality of

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Rodney’s remaining IAC claims; specifically, whether counsel: (1) failed to investigate or

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challenge the prosecution’s medical evidence at trial, (2) failed to timely object to the lay

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medical testimony of the victim, (3) failed to use medical records to impeach the victim’s

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medical testimony, and (4) failing to call any medical experts or treating medical providers to

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testify regarding the victim’s injuries. Id.

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Respondents’ request for all medical records in petitioner’s possession is eminently

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reasonable given the nature of petitioner’s IAC claims. Accordingly, petitioner will be required

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to provide respondents with all such records currently in his possession and, prospectively, must

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timely provide respondents with such records as they are obtained through discovery or other

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means. In addition, the court agrees that briefing on the substantiality of Rodney’s individual

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IAC claims is warranted.

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2. Petitioner’s Response.

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Petitioner responded to this court’s order on remand by filing a motion for discovery

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(ECF No. 65) and a motion for evidentiary hearing (ECF No. 66). In connection to the latter

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motion, petitioner has proffered, under seal, “a preliminary report by his expert, Michelle

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Woodfall, a clinical nurse specialist [that] discusses discrepancies between the victim, Ralph

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Monko’s, testimony and his medical records.” ECF Nos. 67/68.

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With his motion for discovery, petitioner seeks leave to serve a subpoena on three

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sources: (1) Robert Glennen, petitioner’s trial counsel, (2) the Clark County District Attorney’s

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Office (CCDA), and (3) Sunrise Hospital & Medical Center. Rule 6 of the Rules Governing

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Section 2254 Cases in the United States District Courts states: “A party shall be entitled to

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invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to

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the extent that, the judge in the exercise of his discretion and for good cause shown grants leave

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to do so, but not otherwise.” The Supreme Court has construed Rule 6 to provide that, if through

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“specific allegations before the court,” the petitioner can “show reason to believe that the

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petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to

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relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate

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inquiry.” 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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From Robert Glennen, petitioner seeks production of the entire case file for petitioner in

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the Eighth Judicial District in case number C261421, and in the Nevada Supreme Court in case

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number 56991, including all discovery materials, investigation materials, correspondence,

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memoranda, billing records, and notes. Respondents do not object to this request. ECF No. 69 at

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2. Finding good cause under Rule 6, the court will grant petitioner leave to serve his proposed

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subpoena on Robert Glennen. See ECF No. 65, Exhibit A.

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From the CCDA, petitioner seeks production of the entire case file for petitioner in the

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Eighth Judicial District in case number C261421, including any discovery provided to the

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defense before or during trial; Ralph Monko’s entire medical file; any materials related to

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personnel who treated Ralph Monko; any witness statements; and documentation, either

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contemporaneous or recreated, delineating what materials were provided to Robert Glennen.

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Respondents do not object to “the CCDA providing any documents it previously provided to

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Rodney’s trial attorneys or was otherwise required to provide,” but contend that petitioner’s

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“request is overbroad and could include material wholly unrelated to the claims at issue” and

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“could potentially include privileged material.” ECF No. 69 at 3.

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As to the latter concern, petitioner correctly points out that Fed. R. Civ. P. 45(e)(2)
provides a means for the CCDA to assert a claim that information is privileged or subject to

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protection. The court also does not view petitioner’s request as overbroad or unduly burdensome.

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Instead, the request appears designed to obtain information that may reasonably lead to the

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discovery of admissible evidence. See Fed. R. Civ. P. 26(b)(1) (“Relevant information need not

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be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery

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of admissible evidence.”). Finding good cause under Rule 6, the court will grant petitioner leave

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to serve his proposed subpoena on the CCDA. See ECF No. 65, Exhibit B. 1

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From Sunrise Hospital & Medical Center, petitioner seeks production of all records

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related to the treatment of Ralph Monko from October 2009 through January 2010. Respondents

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do not object to this request. ECF No. 69 at 3. Finding good cause under Rule 6, the court will

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grant petitioner leave to serve his proposed subpoena on Sunrise Hospital & Medical Center. See

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ECF No. 65, Exhibit C. 2

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For each of petitioner’s discovery requests, respondents request reciprocal disclosure. As

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a matter of fairness, the court agrees that petitioner be required to provide respondents with

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copies of any and all materials and/or information obtained from the CCDA and Sunrise Hospital

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& Medical Center. With respect to materials obtained from Robert Glennen, petitioner must

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provide respondents items and information that may be relevant to the defense of petitioner’s

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IAC claims. See Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003) (en banc) (habeas

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petitioner waives his attorney-client privilege in a proceeding raising an ineffective assistance of

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counsel claim, but such waiver is limited to what is necessary to allow the state to fairly defend

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against such claim). Petitioner may, if necessary, request a protective order to “delimit how

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parties may use information obtained through the court's power of compulsion.” Id. at 726.

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With his motion for evidentiary hearing, petitioner contends a hearing is necessary for the

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court to resolve both to the question of cause and prejudice under Martinez and the merits of the

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underlying IAC claims. According to petitioner, he “would put on evidence to prove that Mr.

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Petitioner mistakenly identifies Robert Glennen, not the CCDA, as the recipient of the proposed
subpoena. ECF No. 65 at 19.
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Here again, petitioner mistakenly identifies Robert Glennen as the recipient of the proposed subpoena.
ECF No. 65 at 25.
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Glennen performed deficiently at trial, to [petitioner’s] prejudice.” ECF No. 66 at 5. He “would

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also present expert testimony to discuss the errors in the victim’s testimony concerning his

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injuries as compared to the information contained in his medical records.” Id.

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Like the respondents, petitioner also propose that the court entertain briefing. Id. at 6. The

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court agrees that briefing would narrow the factual issues that may require an evidentiary

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hearing. In addition, it stands to reason that the parties will be able to more effectively brief their

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respective positions after the completion of discovery. Thus, prior to deciding whether to hold an

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evidentiary hearing, the court will allow for the completion of discovery, followed by briefing on

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the question of cause and prejudice under Martinez and the underlying merits of the claims of

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ineffective assistance of counsel. Accordingly, the court will deny petitioner’s motion for

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evidentiary hearing without prejudice and establish a scheduling order for briefing once

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discovery has been completed.

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IT IS THEREFORE ORDERED that petitioner’s motion for discovery (ECF No. 65) is

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GRANTED as set forth above. Petitioner’s motion for evidentiary hearing (ECF No. 66) is

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DENIED without prejudice to petitioner renewing the motion at the completion of discovery and

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briefing.

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IT IS FURTHER ORDERED that petitioner shall notify the court when he has completed

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the discovery outlined above. The court will then issue a schedule for briefing on the question of

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cause and prejudice under Martinez and the underlying merits of petitioner’s remaining claims of

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ineffective assistance of counsel.

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IT IS FURTHER ORDERED that each party is required to provide the opposing party

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with all relevant medical records currently in their respective possession and, prospectively, must

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timely provide the opposing party with such records as they are obtained through discovery or

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other means. The parties must also timely provide any reports generated by experts in support of

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their respective positions.

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IT IS FURTHER ORDERED that petitioner’s motion to seal (ECF No. 67) is

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GRANTED. ECF No. 68 shall remain sealed. Respondents’ counsel shall be allowed access to

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the sealed document (ECF No. 68), but shall keep the document confidential and not disclose it

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or its contents to any third parties.

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DATED THIS 22nd day of September, 2020.

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UNITED STATES DISTRICT JUDGE

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