Yaag v. LeGrand et al, No. 3:2014cv00295 - Document 39 (D. Nev. 2016)

Court Description: ORDER granting to the extent consistent with the remaining provisions of this order Petitioner's ECF No. 27 Motion to Compel; directing Respondents within 30 days to file a set of supplemental exhibits (see order for details); directing Clerk to file under seal ECF No. 32 Motion for Leave to File Supplement to Petition by Petitioner Donald Stephen Yaag; directing hard copies of exhibits to be sent to the Reno Clerk's Office. Signed by Judge Miranda M. Du on 11/10/2016. (Copies have been distributed pursuant to the NEF - KR)
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Yaag v. LeGrand et al Doc. 39 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 DONALD STEVEN YAAG, 9 Petitioner, ORDER v. 10 11 Case No. 3:14-cv-00295-MMD-WGC ROBERT LeGRAND, et al., Respondents. 12 13 This pro se habeas matter comes before the Court on petitioner’s motion styled 14 as a motion to compel (ECF no. 27), which the Court construes as a motion for 15 discovery pursuant to Rule 6(a) of the Rules Governing Section 2254 Cases (the 16 “Habeas Rules”). Petitioner seeks discovery of materials reflecting that he was 17 incarcerated in California at the time of at least one, and possibly more, of the Nevada 18 offenses for which he stands convicted. Attorneys for the State asserted during, inter 19 alia, state post-conviction proceedings that they were in possession of materials 20 reflecting his dates of incarceration in California. 21 I. BACKGROUND 22 Petitioner Donald Yaag challenges his 2009 Nevada state conviction, pursuant to 23 a jury verdict, of nine counts of sexual assault of a minor under the age of fourteen. 24 Petitioner was sentenced to nine concurrent sentences of life without the possibility of 25 parole. 26 Petitioner was charged with having committed these offenses against C.A. The 27 evidence at trial reflected that Yaag had dated C.A.’s mother at one time or another, 28 and Yaag had remained in contact with C.A.’s family even at times when he and her Dockets.Justia.com 1 mother were not dating. Yaag was regarded as a stepfather by C.A., who had had no 2 involvement with her natural father.1 3 The amended information under which petitioner was tried charged him with a 4 total of 21 counts, consisting of 14 counts of sexual assault of a minor under the age of 5 fourteen and 7 counts of lewdness with a child under the age of fourteen. The State 6 pursued a number of the lewdness charges only in the alternative to a sexual assault 7 charge from the same alleged incident. The State further conceded in its closing that 8 C.A.’s trial testimony had not supported certain counts alleging specific activity.2 9 None of the counts were alleged separately to have occurred on a specified date 10 or within a range of dates. Instead, the opening paragraph alleged that the 21 offenses 11 occurred over a three-year period from “on or between January 1, 2004, and December 12 31, 2006.”3 13 In the trial evidence, however, specific counts nonetheless corresponded to four 14 discrete time periods where Yaag allegedly was visiting from California and staying at a 15 /// 16 17 18 19 20 21 22 23 24 25 26 27 28 1E.g., ECF No. 13 (Exh. 14 at transcript pages 37-38, 40-42 & 70 (see note below)). Respondents filed selected state court record exhibits at ECF No. 13 along with a copy of an index of exhibits. The Court hereafter will cite simply to the relevant exhibit number. Further, page citations, unless otherwise noted, are to the electronic docket page number in the header at the top of the page rather than to any internal page numbering within the original document. The trial transcripts, however, are filed as multipart attachments, and it does not appear likely that the transcript copies in the pro se petitioner’s possession include CM/ECF headers with electronic page numbering. The Court therefore uses the original internal page numbers when citing to the trial transcripts. The Court makes no factual findings as to the veracity of any assertion of fact by any witness, party or counsel at any point in the state proceedings. The Court merely refers to evidence and possible inferences that are pertinent to gauging the potential relevance and materiality of the discovery sought. Thus, no factual statement herein constitutes a factual finding by this Court. The current background summary does not purport to be a complete recital of all trial evidence and potentially relevant state court record materials. The present summary instead merely provides background to the issues presented on the motion for discovery. 2See Exh. 15 at 160-62 & 175-76. 3Exh. 10. 2 1 particular location in Las Vegas.4 The Court will refer to these discrete episodes — in 2 the temporal order in which they allegedly occurred — as: (1) the “Wild Wild West — 3 Scandia” incidents; (2) the “Wild Wild West — Star Trek Experience” incidents; (3) the 4 “Adolfo’s Home” incidents; and (4) the “Mother’s Home” incident. 5 6 7 8 9 10 11 12 Counts 1 through 5 corresponded to the Wild Wild West — Scandia incidents, with Yaag being convicted of Count 4.5 Counts 6 through 10 corresponded to the Wild Wild West — Star Trek Experience incidents, with Yaag being convicted of Counts 7, 8 and 9.6 Counts 11 through 15 and 17 through 21 corresponded to the Adolfo’s Home incidents, with Yaag being convicted of Counts 11, 15, 18 and 19. 7 Count 16, of which Yaag was convicted, corresponded to the Mother’s Home incident.8 13 The State sought to establish at trial that the foregoing charged offenses 14 occurred over a span of time during which C.A. was 11 to 13 years old. The currently 15 available record reflects that C.A. was born on February 19, 1993. She thus would have 16 been 11 years old from February 19, 2004, through February 18, 2005. 9 17 18 19 20 21 22 23 24 25 26 27 28 4Exh. 14 at 71 & 147. 5Exh. 14 at 41-50 & 66-67 & 71 (C.A. trial testimony); Exh. 15 at 166-68 (closing argument); Exh. 20 (judgment of conviction). The prosecutor was not entirely clear and consistent in her closing regarding which specific counts corresponded to which incidents. The breakdown in the text accordingly is based in the final analysis on how C.A.’s testimony lined up with the counts, with the prosecutor’s closing serving only as an initial guide. 6Exh. 14 at 71-83; Exh. 15 at 168-69; Exh. 20. Part of the episode also was referred to at trial by reference to the In-N-Out Burger location that is at the same intersection as the Wild Wild West Casino. The State conceded that C.A.’s trial testimony did not support Count 6. Exh. 15 at 161. Count 10 was pursued in the alternative to Count 9. Id. 7Exh. 14 at 84-93; Exh. 15 at 170-72; Exh. 20. The State conceded that C.A.’s trial testimony did not support Counts 12, 13, 17 and 20. Exh. 15 at 162. The State pursued Count 21 in the alternative to Count 19. Id. 8Exh. 15 at 172; Exh. 20. The incident also was referred to at trial by reference to the “Wedding Crashers” movie that they were watching and/or by C.A.’s birthday. C.A. also would refer to the incident by the street where her mother’s home was located, Sandrone. 9See, e.g., Exh. 14 at 24, 28 & 30-31. In compliance with LR IC 6-1, counsel sought to excise C.A.’s date of birth where it appears in the transcript. Counsel missed (fn. cont…) 3 1 As discussed further, infra, that span of time is potentially material to issues 2 presented in this case. Petitioner is trying to obtain reliable evidence that he can use to 3 establish that he was incarcerated in California allegedly from approximately December 4 20, 2002, until July 23, 2005. If that in fact were established to be true, he thus would 5 not have been in Nevada during the time of any alleged offenses of which he was 6 convicted that allegedly occurred while C.A. was 11. In such a situation, he also could 7 not have been in Nevada until more than half of the three-year span of time alleged in 8 the amended information had elapsed. 9 At trial, C.A. testified that the Wild Wild West — Scandia incidents — in regard to 10 which Yaag was convicted on Count 4 — occurred when she was 11 years old, but she 11 did not recall the month or time of year.10 12 C.A. did not testify to any specifics reflecting when the Wild Wild West — Star 13 Trek Experience incidents occurred, in regard to which Yaag was convicted on Counts 14 7, 8 and 9.11 15 C.A. testified that she was 12 years old when the Adolfo’s Home incidents 16 occurred and that they occurred in “around, I believe, October.” 12 These incidents 17 accordingly would have allegedly occurred in or around October 2005. 18 C.A. testified that the Mother’s Home incident occurred when Yaag was visiting 19 for both her birthday and her brother’s birthday when she was still 12 but about to 20 become 13 years old.13 This incident accordingly would have allegedly occurred on or 21 before February 18, 2006. 22 23 24 25 26 27 28 (…fn. cont.) iterations on pages 30 and 116 of the transcript, however. C.A.’s date of birth as reflecting her age during a specific period is material to the discussion herein. Given that the date of birth is not referenced herein in conjunction with other personal identifiers, it does not appear that filing the present order under seal is warranted or necessary. 14, at 41-43 & 129-30; but see id. at 153 (“11 or 12" in prior statements). Exh. 14 at 71-83. 12Exh. 14 at 84, 89 & 164-65. 13Exh. 14 at 93 & 116-17. 10Exh. 11See 4 1 Prior to trial, defense counsel, the prosecution, and the trial court all were aware 2 that Yaag had been incarcerated during the overall time that he knew C.A. and her 3 mother. Yaag had known them for approximately a decade prior to the charged 4 incidents. His California incarceration was the reason given — outside the presence of 5 the jury — for the multi-year gap between alleged prior instances of sexual abuse of 6 C.A. by Yaag occurring in California when she was much younger and the later Nevada 7 alleged incidents.14 8 It appears from the limited record materials currently on file in this action that 9 Yaag was incarcerated in California during that time — whenever it specifically was — 10 on a California conviction for a lewd act upon a child and force of a lewd act upon a 11 child. Yaag acknowledged that his natural daughter was a victim of the California 12 offenses.15 13 At the November 8, 2012, state post-conviction evidentiary hearing, defense 14 counsel testified based upon an incomplete and not necessarily infallible recollection of 15 /// 16 17 18 19 20 21 22 23 24 25 26 27 28 Exh. 13 at 16, 33-34, 40 & 58-60 (including C.A’s pretrial hearing testimony). 15See, e.g., Exh. 19 at 3-5 (sentencing transcript). The citation covers the following notes as well. The Court assumes for the current discussion that a conviction for basically the same type of offense against a similarly situated victim has no immediate bearing on whether Yaag can establish actual factual innocence of one or more of the offenses charged in this case in an effort to overcome the untimeliness and/or procedural default of certain claims in this case. For accuracy of the recital, the Court notes that the State maintained at sentencing that there had been three child victims of the California offenses. Yaag stated in response that his daughter had been the only victim. The current issues do not turn on this point. The prior California conviction formed the basis for the mandatory life sentences without parole imposed on the Nevada convictions. Earlier charging instruments in the case referred to the California conviction as being dated January 28, 2004. E.g., No. 5 (the information later was amended to remove the reference because the information was to be before the jury). The State asserted at sentencing that Yaag was sentenced to 36 months for the offenses, but it is not clear when time-served sentencing credit on the sentences might have begun in relation to that alleged date of conviction. See also Exh. 13 at 60 (perhaps suggesting that time-served credit may have started running earlier). 14E.g., 5 1 the events and circumstances from nearly four years earlier at the trial.16 As best as 2 counsel could recall, there was some overlap between the period of incarceration and 3 the period of time charged in the amended information. He recalled pursuing motions in 4 limine seeking, inter alia, to narrow the time range in the charging instrument to exclude 5 a time period when Yaag was imprisoned and further to prevent references to the prior 6 conviction at trial. He further recalled facing difficulties in cross-examining the victim 7 about time periods where Yaag instead may have been in prison without in some 8 manner opening the door to possible admission of evidence of the prior conviction.17 9 10 Also at the state post-conviction evidentiary hearing, Yaag testified, inter alia, that he was incarcerated from December 19, 2002, to July 25, 2005.18 11 Counsel for the State — who had been one of the prosecutors at Yaag’s trial — 12 objected during Yaag’s testimony maintaining that he had been incarcerated from 2002 13 to 2005. She stated: “I can bring records that show when he was incarcerated, but that 14 is not correct, the records that the State has.” The record on file in this federal court 15 action does not reflect, however, that counsel thereafter sought to present records 16 showing Yaag’s actual specific dates of incarceration prior to a ruling on the state 17 petition.19 18 19 20 21 22 23 24 25 26 27 28 16E.g., Exh. 41 at 4-7. Page citations are to the original transcript page numbers for this multi-part filing. 17Exh. 41 at 7-8, 11, 22-24 & 41-43. The state court record materials currently on file corroborate counsel’s recollection in part and reflect the filing of three motions in limine. See Exh. 22 at 7. Respondents have filed a copy of one motion in limine on an unrelated point and the State’s response to a different but potentially pertinent motion in limine. The Court will direct respondents to supplement the exhibits with the two pertinent motions in limine and all briefing thereon. As noted in the text, defense counsel’s recollection had faded in the intervening years. The Court expresses no opinion as to whether the defense actually would have been prevented from introducing evidence of the fact of Yaag’s incarceration — if in truth relevant to whether he could have been in Nevada for a particular offense or offenses — without opening the door to introduction of otherwise inadmissible evidence also as to the reason for his incarceration. (Petitioner did not testify at trial, and the fact of the prior conviction therefore was not admissible as impeachment evidence.) 18Exh. 41 at 66-67. 19See Exh. 41 at 67 & 83-87. 6 At the conclusion of the arguments at the post-conviction hearing, the presiding 1 2 judge — who also had presided at Yaag’s trial — stated: THE COURT: So, and – I mean, this is something that I’m sure we knew at trial and should not be controverted now, which is the charges that he was charged with and convicted of did not take place while he was in prison. Forget the jury, I would have dismissed the charges if that were the case. I mean – . . . – that’s just not the case. Maybe – I mean, it certainly came up because some of the testimony came up about a course of conduct. . . . . And maybe some of the testimony about the course of conduct encompassed some of the – potentially encompass[ed] some of the time in prison, so think that’s where the issue is worth talking about and I understand it. But I want to be clear that the charges he was convicted of, those incidents were not while he was in prison. I mean, that certainly would have been an important issue for the Court if that were the case. 3 4 5 6 7 8 9 10 Exh. 41 at 87.20 11 In this federal habeas action, respondents have moved to dismiss, inter alia, 12 Ground 1 as procedurally defaulted and Grounds 2(C), 2(D), 3, 4, and part of 2(F) as 13 untimely due to a failure to relate back to timely claims. 14 Petitioner responded initially with the present motion. He seeks discovery of any 15 records that respondents may have pertaining to the duration of his California 16 incarceration. He seeks the materials to, inter alia, make a showing in response to 17 respondents’ procedural defenses that a failure to consider the claims would result in a 18 fundamental miscarriage of justice because he allegedly could not have committed 19 offenses of which he was convicted because he was incarcerated in California at the 20 relevant time. 21 In his subsequent opposition to respondents’ motion to dismiss, petitioner also 22 maintained that a failure to review any procedurally barred claims would result in a 23 fundamental miscarriage of justice because he is actually innocent of any charged 24 offenses that allegedly occurred in 2004 due to his alleged incarceration in California at 25 /// 26 27 28 20The Court expresses no opinion at this juncture as to whether the state district court’s assertions would be subject to a presumption of correctness under 28 U.S.C. § 2254(e)(1). Petitioner would have an opportunity to overcome any such presumption by presenting clear and convincing evidence to the contrary. The current issue, in part, is whether discovery is warranted to allow the petitioner an adequate opportunity to do so. 7 1 that time. Petitioner referred to this pending motion seeking to obtain evidence in the 2 State’s possession of the dates of his incarceration. Petitioner thereafter filed a motion for leave to file a supplement to the petition, 3 4 which was presented with extensive attachments.21 5 Materials attached with the motion purport to reflect extended efforts by petitioner 6 to obtain records establishing his dates of incarceration directly from California 7 authorities, with numerous different types of requests being denied. 22 8 Petitioner further included argument in the papers attached with the motion 9 seeking to identify, inter alia, the specific testimony by C.A. that he maintains was 10 contradicted by his alleged dates of California incarceration. 11 Petitioner also attached an exhibit identified as “Exhibit 1(a)” with the motion for 12 leave. The exhibit purports to be documentation obtained by petitioner in March 2016 13 from the Departmental Archives Unit of the California Department of Corrections and 14 Rehabilitation. The enclosure included with the exhibit is identified as “the CDCR 112 15 Chronological History, Parole Violations and Summary of Revocation Hearing and 16 Decision documents for both [Yaag] CDCR Numbers,” which the Court refers to herein 17 as the “CDCR Chronological History.”23 18 The CDCR Chronological History includes handwritten and/or typewritten entries 19 that are potentially pertinent to Yaag’s claim of actual innocence, from among entries in 20 the document covering a broader overall period of time. The following entries are referenced as being under CDCR No. P-01796 for 21 22 Donald Yaag: 23 /// 24 25 26 27 28 21The Court is holding the motion under advisement, and it expresses no opinion as to whether the motion properly presents a request for amendment and/or supplementation of the pleadings. The Court’s focus at present is upon what the materials attached with the motion appear to reflect what is pertinent to the present motion for discovery. 22See ECF No. 32 at 64-81 & 153. 23ECF No. 32 at 5-10. 8 ... 1 10-4-01 2 Ret to Parole – Reg. IV – Victorville Unit II24 ... 3 4 10-23-02 RETAIN ON PAROLE PER [illegible initial] 5 12-19-02 Hold Placed 6 12-20-02 Received RCC/CIM PENDREV ... 7 12-6-03 8 9 ECF No. 32 at 7-8. The following entries are referenced as being under CDCR No. V-24483 for 10 11 Yaag: 02-13-04 12 received WASCO STATE PRISON-RC NC ... 13 7-23-05 14 Paroled to Region IV Unit Victorville 3 ... 15 16 discharge per stat max ECF No. 32 at 9. Petitioner maintains that the CDCR Chronological History establishes that he 17 18 was incarcerated continuously from December 20, 2002, to July 23, 2005. 25 19 /// 20 21 22 23 24 25 26 27 28 24Compare to a more clear combined typewritten and handwritten entry for 12/6/99: RELEASED ON PAROLE, REGION IV, DISTRICT: Victorville, COUNTY: San Bernardino. 25The Court expresses no opinion at this juncture as to what the cursory entries on the unauthenticated document in fact establish. The entries potentially might be read as reflecting a return to incarceration from parole on December 20, 2002; the expiration of one sentence on December 6, 2003; incarceration on a second sentence thereafter; and a release on parole on July 23, 2005. It perhaps may be necessary at some point for an official with knowledge of the type of record to execute an affidavit or declaration establishing (as to this and perhaps related materials) both authenticity as well as the significance of the content in full context. At this point, however, it is significant that the entries on the exhibit presented are not necessarily inconsistent with Yaag’s claim that he was incarcerated in California during a time period when C.A. testified that he committed sexual offenses in 2004. (C.A.’s eleventh birthday was on February 19, 2004, after the February 13, 2004, entry on the document referring to Wasco State Prison.) 9 1 Petitioner additionally has filed a renewed motion for appointment of counsel 2 along with another motion and sundry other filings claiming actual innocence on the 3 same basis. 4 II. GOVERNING LAW 5 Rule 6(a) provides that “[a] judge may, for good cause, authorize a party to 6 conduct discovery under the Federal Rules of Civil Procedure . . . .” In Bracy v. 7 Gramley, 520 U.S. 899 (1997), the Supreme Court held that Rule 6 was meant to be 8 applied consistently with its prior opinion in Harris v. Nelson, 394 U.S. 286 (1969), which 9 expressly called for the adoption of the rule. 520 U.S. at 904 & 909. In Harris, the 10 Supreme Court held that “where specific allegations before the court show reason to 11 believe that the petitioner may, if the facts are fully developed, be able to demonstrate 12 that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities 13 and procedures for an adequate inquiry.” 394 U.S. at 300 (emphasis added). In Bracy, a 14 unanimous Supreme Court overturned a decision denying discovery where the 15 petitioner’s claim of judicial bias in his particular case was based on “only a theory,” 16 where the claim was “not supported by any solid evidence” with regard to the theory, 17 and where the Supreme Court expressly noted that “[i]t may well be, as the Court of 18 Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support” 19 the theory that the petitioner sought to pursue in the discovery. 520 U.S. at 908 & 909. 20 The Ninth Circuit, consistent with Bracy and Harris, accordingly has held 21 repeatedly that habeas discovery is appropriate in cases where the discovery sought 22 only might provide support for a claim. See, e.g., Pham v. Terhune, 400 F.3d 740, 743 23 (9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997). See also Osborne 24 v. District Attorney’s Office, 521 F.3d 1118, 1133 (9th Cir. 2008), reversed on other 25 grounds, District Attorney’s Office v. Osborne, 557 U.S.52 (2009)(in discussing its 26 precedent in Jones as to habeas discovery, the Ninth Circuit reinforced the point that a 27 court should allow discovery that, as emphasized by the Court of Appeals, only “may 28 establish” a factual basis for the petitioner’s claim). 10 1 With regard to affirmative defenses raised herein, a petitioner who cannot 2 overcome a procedural bar on other grounds still may obtain review of untimely or 3 procedurally defaulted claims if he can demonstrate that the failure to consider the 4 claims would result in a fundamental miscarriage of justice. E.g., McQuiggin v. Perkins, 5 133 S.Ct. 1924 (2013) (federal limitation period); Schlup v. Delo, 513 U.S. 298 (1995) 6 (procedural default). 7 In noncapital cases, this exception has been recognized only for petitioners who 8 can demonstrate actual innocence. E.g., Poland v. Stewart, 117 F.3d 1094, 1106 (9th 9 Cir. 1997). In order to satisfy this actual innocence gateway, a petitioner must come 10 forward with new reliable evidence that was not presented at the trial that, together with 11 the evidence adduced at trial, demonstrates that it is more likely than not that no 12 reasonable juror would have found the petitioner guilty beyond a reasonable doubt. 13 See, e.g., Schlup, 513 U.S. at 324-27. 14 This exacting standard permits review only in the “extraordinary case,” but it 15 does not require absolute certainty about the petitioner's guilt or innocence.” E.g., Lee v. 16 Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). If the evidence presented on post- 17 conviction review casts doubt on the conviction by undercutting the reliability of the 18 proof of guilt, but not by affirmatively proving innocence, that can be enough to pass 19 through the Schlup gateway to allow consideration of otherwise barred claims. Id. 20 The evidence need not be newly discovered, but it must be “newly presented.” 21 See Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003). The federal habeas court 22 considers all the evidence, old and new, incriminating and exculpatory, whether 23 admissible at trial or not. Lee, 653 F.3d at 938. Newly presented evidence may call into 24 question the credibility of trial witnesses, potentially requiring credibility assessments on 25 federal habeas review. Schlup, 513 U.S. at 330, Stewart v. Cate, 757 F.3d 929, 941 (9th 26 Cir. 2014). On a complete record, the court makes a probabilistic determination about 27 what reasonable, properly instructed jurors would do. Lee, 653 F.3d at 938. 28 /// 11 In this regard, “actual innocence” means actual factual innocence, not mere legal 1 2 insufficiency. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 339 (1992). 3 III. DISCUSSION 4 Petitioner has established good cause under Rule 6(a) for the discovery sought. 5 The material sought is potentially relevant to petitioner’s effort to show actual innocence 6 under Schlup at the very least as to Count 4.26 The material further is potentially 7 relevant to petitioner’s argument under Schlup seeking to undermine the credibility of 8 the complaining witness’ testimony supporting the remaining counts. Moreover, the 9 State affirmatively represented to the state district court at the 2012 state post- 10 conviction hearing that it “can bring records that show when he was incarcerated.”The 11 record before the Court therefore tends to establish both that petitioner may be able to 12 overcome the procedural bars raised with the discovery sought and further that the 13 State possesses the material sought. 14 Respondents maintain that petitioner “fails to allege what records are in the 15 possession of [the District Attorney’s] office, what the records purport to state and what 16 facts in those records support the allegations in his petition for federal habeas relief.”27 17 The original pro se motion sufficiently identified, however, what petitioner was 18 seeking and why. Petitioner additionally has provided further detail relevant to the 19 request in subsequent filings. 20 Respondents further contend that evidence reflecting the dates of petitioner’s 21 California incarceration is not “new” for purposes of Schlup because “it is clear that this 22 /// 23 /// 24 25 26 27 28 26The Ninth Circuit has rejected use of the concurrent sentence doctrine as a discretionary basis for declining review of criminal convictions. See United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984) (en banc). Thus, even if petitioner’s argument ultimately perhaps would allow him to challenge his conviction on otherwise barred claims as to only one of his nine concurrent sentences of life without parole, review of the claims would not be declined on that basis. 26aSee Exh. 41 at 67. 27ECF No. 29 at 2. 12 1 evidence was available at the time of trial.”28 However, as noted previously, for evidence 2 to be “new” for purposes of Schlup it need be only “newly presented” as opposed to 3 “newly discovered” and thus previously unavailable. Griffin, 350 F.3d at 961-63. The key 4 inquiry is not “whether the new evidence was available to the defendant during his trial, 5 but rather [is] . . . whether the new evidence was introduced to the jury at trial.” 350 F.3d 6 at 963 (emphasis in original). Accordingly, evidence that was excluded by the trial court 7 or that was not presented by the defense at a jury trial can qualify as new evidence for 8 purposes of Schlup. Id. In the present case, it appears that evidence of the dates of 9 incarceration specifically was excluded from evidence rather than presented to the jury 10 at petitioner’s trial.29 The evidence therefore would appear on the record currently 11 before this Court to be “new” for purposes of Schlup. 12 Respondents also urge that “[a]fter the passage of AEDPA, discovery and 13 evidentiary hearings have been severely limited,” citing to Cullen v. Pinholster, 131 14 S.Ct. 1388, 1401 (2011) and 28 U.S.C. § 2254(e).30 15 The holding in Pinholster, however, precludes consideration of evidence received 16 for the first time in federal court only when the court is actually conducting review of a 17 state court decision on the merits under § 2254(d). Pinholster does not preclude 18 consideration of such evidence when presented by the petitioner in an effort to 19 overcome a procedural bar in federal court. First, presentation of evidence for that 20 purpose does not constitute presentation of evidence on the merits of a claim 21 adjudicated on the merits in the state courts. See, e.g., Detrich v. Ryan, 740 F.3d 1237, 22 1247 (9th Cir. 2013) (en banc) (presentation of evidence to overcome a procedural 23 default by establishing cause based on inadequate assistance of post-conviction 24 counsel did not constitute presentation of evidence on the merits of a claim). Second, 25 26 27 28 28ECF No. 38 at 4. Both petitioner and respondents have presented argument relevant to the motion for discovery in other papers filed subsequent to the briefing cycle specifically on the motion. 29See text and notes, supra, at 5-6. 30ECF No. 29 at 2. 13 1 where a claim has been procedurally defaulted or otherwise is unexhausted in the state 2 courts, the claim has not been adjudicated on the merits in a state-court proceeding in 3 any event. See, e.g., id. (procedurally defaulted claim had not been adjudicated on the 4 merits); see also Gentry v. Sinclair, 705 F.3d 884, 896 (9th Cir. 2013) (similar).31 5 Section 2254(e)(2)32 also does not preclude consideration of evidence presented 6 for the first time in federal court seeking to establish actual innocence under Schlup, for 7 similar reasons. In House v. Bell, 547 U.S. 518 (2006), the habeas respondents argued, 8 inter alia, that AEDPA replaced the Schlup actual-innocence rule with the stricter 9 standard found in § 2254(e)(2)(B). The Supreme Court held that § 2254(e)(2)(B) was 10 “inapplicable” because the provision addressed the “threshold for obtaining an 11 evidentiary hearing on claims the petitioner failed to develop in state court” rather than a 12 “petition seeking consideration of defaulted claims based on a showing of actual 13 innocence.” 547 U.S. at 539. See also Dickens v. Ryan, 740 F.3d 1302, (9th Cir. 2014) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31Respondents seek dismissal of Ground 1 as procedurally defaulted and Grounds 2(C), 2(D), 3, 4, and part of 2(F) as untimely due to a failure to relate back to timely claims. Respondents additionally challenge the exhaustion of Grounds 2(C) and 2(D) and part of 2(F) with regard to the allegedly untimely claims — as well as of parts of Grounds 2(A) and 2(B). 32Respondents refer to § 2254(e). However, subparagraph (e)(1) of the statute establishes a rebuttable presumption of correctness for state court factual findings, and its text does not establish any express limitation on the evidence that can be considered when a petitioner seeks to overcome the presumption by “clear and convincing evidence.” Subparagraph (e)(2) of §2254 provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 14 1 (en banc) (when a petitioner seeks to establish cause to overcome a procedural default 2 based on inadequate assistance of post-conviction counsel, “he is not asserting a 3 ‘claim’ for relief as that term is used in § 2254(e)(2)”). It thus is clear that § 2254(e)(2) is 4 inapplicable to an effort to demonstrate actual innocence under Schlup to overcome a 5 procedural default or untimeliness bar.33 6 Respondents further posit: 7 [Petitioner’s] motion claims that the records allegedly in possession of the Clark County DA’s Office contradict his claim that he was in prison in California during the time the crimes are alleged. Respondents question how these unnamed and unspecified records (if they even exist) would prove his “innocence” if they contradict [petitioner’s] claims. If these records did exist, Respondents presume that they would have been introduced by the State (the Clark County District Attorney’s Office) at trial in order to prove his guilt. 8 9 10 11 12 ECF No. 29 at 2 n.2. 13 The Schlup actual-innocence inquiry is fact-intensive, and the Court therefore 14 must decide the issue only upon an adequate record. See, e.g., Corzine v. Baker, No. 15 14-15242 (9th Cir., Mar. 25, 2016) (“The Supreme Court has been unequivocal in its 16 instruction that a habeas court must consider the entire record in a Schlup inquiry.”); 17 Walker v. McDaniel, No. 08-15628 (9th Cir., Oct. 29, 2012) (district court abused its 18 19 20 21 22 23 24 25 26 27 28 33Moreover, with respect to both Pinholster and § 2254(e)(2), it has not necessarily been established that evidence of the dates of petitioner’s California incarceration was not before the state courts. It appears that, inter alia, a motion in limine specifically involving the evidence was litigated in the district court and that the issue was pursued thereafter before the Supreme Court of Nevada on direct appeal. Another motion in limine also was pursued that concerned the associated conviction. See text and notes, supra, at 5-6. Where evidence presented in federal court merely reconstructs facts or evidence clearly known to the state courts, Pinholster does not bar consideration of the evidence. See, e.g., Jamerson v. Runnels, 713 F.3d 1218, 1226 (9th Cir. 2013) (Pinholster did not bar federal court consideration of driver’s license photographs to reconstruct the black-white racial composition of the jury venire, which was apparent to the state trial court during voir dire). A conclusion that the federal evidence merely reconstructs facts before the state court also tends to cut against a determination that a petitioner failed to develop the factual basis of a claim in state court for purposes of § 2254(e)(2). (As discussed in the text, supra Error! Main Document Only.at 13, there is no requirement that newly presented evidence be entirely outside the scope of the state court record in order to be “new” for purposes of Schlup, so long as it was not presented to the jury at trial. There thus is no tension between a conclusion that the reconstructed evidence was in the overall state court record and a conclusion that the evidence presented in federal court is “new” under Schlup.) 15 1 discretion in deciding Schlup issue without adequate record development). The Court 2 accordingly cannot decide the issue based upon speculation or presumption as to what 3 an adequately developed record might or might not show. The record material currently 4 on file tends to establish, inter alia, that: (1) evidence reflecting the dates of petitioner’s 5 California incarceration potentially may be exculpatory on at the very least one of the 6 offenses for which petitioner was convicted; (2) evidence of the dates of petitioner’s 7 incarceration was not introduced by the State at trial to prove his guilt and instead was 8 excluded from evidence; and (3) the State affirmatively represented in the state post- 9 conviction proceedings that it had evidence of the dates of petitioner’s incarceration in 10 its possession, which is consistent as well with the record of the district court 11 proceedings prior to trial. Petitioner obviously refers to what the State said about the 12 evidence not for the truth of the State’s characterization as to what the evidence reflects 13 but instead as tending to establish that the State has the materials that he seeks. Faced 14 with such a record, the Court must permit further factual development to assure that its 15 decision on the Schlup actual-innocence issue is based upon an adequate record. 16 Finally, respondents refer to their not having any materials other than state court 17 records, and respondents argue that “[e]ven if Respondents possessed materials not in 18 the state court record,” petitioner is not entitled to discovery. ECF No. 29 at 2 & n.1. The 19 Court trusts that respondents do not suggest that party discovery may not be sought in 20 this habeas matter of materials that the State represented to the state courts that it has. 21 The Court would look with disfavor upon any argument that respondents — who are 22 defending the collateral challenge to the State’s conviction for the real party in interest, 23 the State of Nevada — are not obligated to respond to party discovery ordered by the 24 Court as to materials that the State has stated that it possesses.34 Even if such an 25 26 27 28 34Cf. Johnny Ray Brown v. Brian Williams, 2:10-cv-00407-PMP-GWF, at 11 (D. Nev., July 30, 2012) (“[T]he Court has, as it must, broad authority to fashion appropriate relief in a federal habeas matter. If state correctional officials are inclined to put obstacles in the way of court-ordered party discovery in a habeas matter based upon the meritless proposition that documents and information within the control of the state department of corrections are not subject to party discovery even though one of its wardens is named as a respondent, the Court will cut through that frivolous objection.”). 16 1 objection were a viable one, the Court then simply could authorize joinder of and service 2 upon the district attorney as an additional party respondent to assure that all parties 3 required for the efficient administration of justice indisputably were fully and formally 4 before the court.35 The Court accordingly trusts that respondents were not suggesting 5 that the materials sought are not subject to party discovery.36 6 Petitioner’s motion for discovery therefore will be granted in the manner 7 consistent with the remaining provisions of this order. The Court will hold all remaining 8 motions by the parties — including petitioner’s renewed motion for appointment of 9 counsel — under advisement pending the supplementation of the federal record 10 directed herein in connection with the motion for discovery. 11 IV. ADDITIONAL MATTERS 12 Under LR IC 6-1, parties must refrain from including, or must partially redact 13 where inclusion is necessary, inter alia, the names of minor children. Under the local 14 rule, if the involvement of a minor child must be mentioned in a filing, only the initials of 15 that child should be used. 16 This rule applies not only to references to C.A., but also to references to other 17 children, such as her friends mentioned in various contexts in her testimony or 18 otherwise in the state court proceedings. 19 The rule also continues to apply even after the then minor child has become an 20 adult. The privacy interests of a child do not terminate as to incidents in which they were 21 involved as a child merely because they since have become an adult. Nor does the 22 23 24 25 26 27 28 35Cf. Advisory Committee Notes to Rule 2(b) of the Rules Governing Section 2254 Cases (“[T]he judge may require or allow the petitioner to join an additional or different party as a respondent if to do so would serve the ends of justice.”); see also Armentero v. INS, 340 F.3d 1058 (9th Cir. 2003), opinion withdrawn on grant of en banc rehearing, 382 F.3d 1153 (9th Cir. 2004), appeal dismissed per fugitive disentitlement doctrine, 412 F.3d 1088 (9th Cir. 2005)(the Ninth Circuit extensively discussed a “flexible, practical approach to designating appropriate respondents”). 36Of course, if the materials sought — as represented by the prosecutor at the state post-conviction evidentiary hearing — belie petitioner’s allegation that he was incarcerated at the time of one or more of the offenses, respondents perhaps would have an interest in making the materials of record in this matter. 17 1 potential for harm from disclosure end after the child becomes an adult. Indeed, it is not 2 difficult to conceive of scenarios in which such public disclosure during the child’s adult 3 years may be quite harmful. In his motion for leave to file a supplement to the petition and associated papers, 4 5 petitioner refers repeatedly to C.A.’s name. He must not do so in his filings. The Court will direct the Clerk to file the motion under seal as the most expedient 6 7 manner of rectifying the pro se petitioner’s noncompliance with the local rule. 8 V. CONCLUSION 9 It is therefore ordered that petitioner’s motion styled as a motion to compel (ECF 10 no. 27), which the Court has construed as a motion for discovery, is granted to the 11 extent consistent with the remaining provisions of this order. 12 It is further ordered, pursuant to both Habeas Rules 6(a) and 7(a), that, within 13 thirty (30) days of entry of this order, respondents will file — and serve upon petitioner 14 — a set of supplemental exhibits consisting of copies of: (1) 15 the defense motion in limine for filing of amended information, i.e., 16 the motion seeking to limit the information to only times when 17 petitioner was not incarcerated; all briefing thereon filed in the state 18 district court; and all attachments and exhibits filed with the motion 19 and/or briefing; (2) 20 the defense motion in limine to prevent admission of uncharged 21 acts and prior conviction; all briefing thereon filed in the state 22 district court; and all attachments and exhibits filed with the motion 23 and/or briefing; and (3) 24 any other non-privileged materials possessed by the State, 25 including by counsel for the State of Nevada in the state criminal 26 and state post-conviction proceedings, that directly or indirectly 27 /// 28 /// 18 1 reflect petitioner’s dates of incarceration on his California conviction 2 for lewd act upon a child and force of a lewd act upon a child.37 3 It is further ordered that, if respondents withhold any otherwise responsive 4 materials pursuant to a claim of privilege, respondents must file a separate notice of 5 withheld documents with a privilege log within the notice identifying the document(s) 6 withheld and the privilege asserted sufficiently to permit an initial facial assessment of 7 the claim of privilege. 8 It is further ordered that the Clerk refile ECF No. 32 under seal, with a notation 9 that it is filed under seal by this order, while still including the description for the filing 10 11 12 13 that currently is stated in the existing docket entry. It is further ordered that counsel send the hard copies of the exhibits to the Reno Clerk’s Office. DATED THIS 10th day of November 2016. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 37The Court is directing both supplementation of the record and the response to the discovery in the one consolidated action step directed in the text. The Court is seeking to determine the appropriate action to be taken on the remaining pending motions at the earliest possible juncture in this action, which is approaching three years in age. The State’s opposition to the motion in limine for filing of amended information is filed as Exhibit 12. For ease of reference, the Court’s preference is that another copy of that particular state court filing be included with the grouping of related exhibits filed with the supplemental exhibits. 19