Howard v. Wickham et al

Filing 20

ORDER denying without prejudice ECF No. 15 Motion for Leave to Conduct Discovery; granting ECF No. 17 Motion to Extend Time. First Amended Petition due by 5/30/2018. Signed by Judge Howard D. McKibben on 3/1/2018. (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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LAMONT HOWARD,

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Petitioner,
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v.
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HAROLD WICKHAM, et al.
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Respondents.
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_________________________________ )

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This

counseled

habeas

matter

3:16-cv-00665-HDM-VPC
ORDER

comes

before

the

court

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petitioner’s motion for discovery (ECF No. 15).

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on

opposed (ECF No. 18), and petitioner has replied (ECF No. 19).

Respondents have

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Petitioner seeks discovery aimed at uncovering where his case

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file, which was last with his postconviction counsel Robert Story,

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might

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reconstructing the file by obtaining certain documents from the Washoe

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County District Attorney’s Office and the Reno Police Department.

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Although a petition has been filed in this case, petitioner has been

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granted leave to file an amended petition through appointed counsel.

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“A habeas petitioner does not enjoy the presumptive entitlement

be

located,

and,

if

it

cannot

be

located,

at

partially

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to discovery of a traditional civil litigant.”

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F.3d 1064, 1068 (9th Cir. 1999) (citing Bracy, Bracy v. Gramley, 520
U.S. 899, 903-05).

Rich v. Calderon, 187

Discovery in habeas matters is governed by Rule

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6 of the Rules Governing Section 2254 Cases in the United States

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District Courts, which states: “A party shall be entitled to invoke

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the processes of discovery available under the Federal Rules of Civil

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Procedure if, and to the extent that, the judge in the exercise of his

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discretion and for good cause shown grants leave to do so, but not

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otherwise.”

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The Supreme Court has construed Rule 6, holding that if through

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“specific allegations before the court,” the petitioner can “show

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reason to believe that the petitioner may, if the facts are fully

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developed, be able to demonstrate that he is . . . entitled to relief,

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it is the duty of the court to provide the necessary facilities and

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procedures for an adequate inquiry.”

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(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).

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is informed by the essential elements of the claims for which

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petitioner seeks discovery.

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discovery in a habeas proceeding is not to develop new claims, but,

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rather, to develop factual support for specific allegations contained

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in existing claims. See also Rich, 187 F.3d at 1067 (“Habeas is an

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important safeguard whose goal is to correct real and obvious wrongs.

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It was never meant to be a fishing expedition for habeas petitioners

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to ‘explore their case in search of its existence.’”).

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additional factors may influence whether the court grants leave to

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conduct discovery.

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960, 969 (D. Nev. 2004) (noting that the court, in exercising its

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discretion under Rule 6, should take into consideration whether the

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claims to which petitioner’s proposed discovery relates are exhausted

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in state court).

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Bracy, 520 U.S. at 908-09

Id. at 904.

This inquiry

Thus, the purpose of

Moreover,

See, e.g., Sherman v. McDaniel, 333 F. Supp. 2d

The court concludes that petitioner’s motion to conduct discovery
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is, at this point in the proceedings, premature, as well as overbroad.

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The motion for leave to conduct discovery (ECF No. 15) is therefore

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denied, without prejudice, to renew after the record has been more

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fully developed.

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Also pending before the court is the petitioner’s motion for an

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extension of time to file his first amended petition.

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The motion is granted.

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30, 2018, within which to file a first amended petition.

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(ECF No. 17).

Petitioner shall have up to and including May

IT IS SO ORDERED.
DATED: This _____ day of March, 2018.
1st

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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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