Smith v. Warden Childers ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 EDDIE SOWELL SMITH, Case No.: 2:23-cv-00527-GMN-MDC 9 Petitioner Order Denying Motion for Discovery and Granting Extension of Time to 10 v. File Fourth-Amended Petition to April 1, 2024 11 WARDEN CHILDERS, (ECF Nos. 21, 23) 12 Respondent. 13 Pro se petitioner Eddie Sowell Smith has filed a motion for discovery as well as a 14 motion for extension of time to file a fourth-amended 28 U.S.C. § 2254 petition. (ECF 15 Nos. 21, 23.) The Court denies the motion for discovery as premature and grants Smith 16 an extension to file an amended petition. 17 I. Discussion 18 Smith seeks to challenge his conviction, pursuant to a guilty plea, of two counts 19 of attempt battery with substantial bodily harm. (See ECF No. 17.) Smith moves for 20 discovery in order to obtain records including bindover records of two counts, 21 sentencing transcripts, and the victim’s statements to police. (ECF No. 21 at 2.) Rule 22 6(a) of the Rules Governing § 2254 Cases provides that “[a] judge may, for good cause, 23 authorize a party to conduct discovery under the Federal Rules of Civil Procedure . . . .” 1 In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court held that Rule 6 was 2 meant to be applied consistently with its prior opinion in Harris v. Nelson, 394 U.S. 286 3 (1969), which expressly called for the adoption of the rule. 520 U.S. at 904 & 909. In 4 Harris, the Supreme Court held that “where specific allegations before the court show 5 reason to believe that the petitioner may, if the facts are fully developed, be able to 6 demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the 7 necessary facilities and procedures for an adequate inquiry.” 394 U.S. at 300 (emphasis 8 added). In Bracy, a unanimous Supreme Court overturned a decision denying 9 discovery where the petitioner’s claim of judicial bias in his particular case was based 10 on “only a theory,” where the claim was “not supported by any solid evidence” with 11 regard to the theory, and where the Supreme Court expressly noted that “[i]t may well 12 be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence 13 sufficient to support” the theory that the petitioner sought to pursue in the discovery. 520 14 U.S. at 908 & 909. Still, discovery cannot serve as a fishing expedition. Kemp v. Ryan, 15 638 F.3d 1245, 1260 (9th Cir. 2011). 16 Here, the Court previously granted Smith’s motion for leave to file a fourth- 17 amended petition. (ECF No. 20.) Generally, when the petitioner files an amended 18 petition, the amended petition supersedes the original petition, and the court treats the 19 claims in the original petition as waived. See Local Rule 15-1(a) (noting an amended 20 petition supersedes an original petition in its entirety); Cf. Lacey v. Maricopa County, 21 693 F.3d 896, 928 (9th Cir. 2012). But Smith has not yet filed the fourth-amended 22 petition. His motion for discovery, therefore, is premature. Neither respondents nor the 23 Court has any way at this stage in the litigation to determine whether any requested 1 discovery is connected to any claims Smith may present. Bracy, 520 U.S. at 909 (a 2 petitioner must demonstrate a causal nexus between requested discovery and the 3 claims in the petition). Moreover, Rule 5 of the Rules Governing Section 2254 cases 4 provides that respondents are responsible for filing the complete state-court record, 5 including transcripts of all transcribed hearings, when they file a response to Smith’s 6 fourth-amended petition. This may moot the basis for the current discovery motion. The 7 Court thus denies the motion for discovery without prejudice. 8 Smith also requests an extension of time to file a fourth-amended petition. (ECF 9 No. 23.) The Court will grant Smith an extension. However, within that motion he states 10 that he cannot draft the amended petition without the requested discovery. The Court 11 rejects this circular argument. Smith must draft a fourth-amended petition, if any, that 12 clearly states his claims that he is held pursuant to a state-court judgment of conviction 13 in violation of his federal constitutional rights. The claims need only brief but specific 14 factual allegations in support at this time. When respondents file the state-court record, 15 Smith will be able to use the record to respond to respondents’ response to his fourth- 16 amended petition. A habeas action generally requires an operative petition as a starting 17 point. 18 19 20 21 22 23 1 II. Conclusion 2 IT IS THEREFORE ORDERED that petitioner’s motion for discovery (ECF No. 3 21) is DENIED without prejudice 4 IT IS FURTHER ORDERED that petitioner’s motion for extension of time to file a 5 fourth-amended petition (ECF No. 23) is GRANTED nunc pro tunc. The deadline to 6 file the fourth-amended petition is extended to April 1, 2024. 7 IT IS FURTHER ORDERED that all other briefing deadlines, including the 8 deadline for respondents to file a response to the amended petition, are set forth in the 9 order at ECF No. 10. 10 11 12 DATED: 22 February 2024. 13 14 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23