2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 RANDY M. STONE, Case No. 3:22-cv-00136-ART-CLB 5 Petitioner, Order Granting Motion for 6 v. Discovery

7 STATE OF NEVADA, et al., (ECF No. 28) 8 Respondents.

10 28 U.S.C. § 2254 habeas corpus petitioner Randy M. Stone, represented by 11 the Federal Public Defender (“FPD”), has filed a motion for leave to conduct 12 discovery. (ECF No. 28.) Because none of Stone’s former attorneys has retained 13 a case file, the Court grants the motion. 14 I. Background 15 A jury convicted Stone of 7 counts of sexual assault with a minor under 16 the age of 14 and acquitted him of 11 more counts of the same. (See ECF No. 28.) 17 Judgment of conviction was entered in January 2004. (See ECF No. 28 at 2.) His 18 current petition is second and successive to Stone v. Palmer, et al., which was 19 denied on the merits. Case No. 3:08-cv-00172-RCJ-VPC (D.Nev. May 8, 2008). 20 The Ninth Circuit Court of Appeals denied a certificate of appealability. (Id. at 21 ECF No. 60.) 22 Stone filed this petition, and the Court granted his motion for appointment 23 of counsel. (ECF No. 18.) His petition alleges several constitutional violations, 24 including violations of his right to confrontation and to conflict-free counsel, and 25 ineffective assistance of counsel at sentencing. (ECF No. 1.) Stone now seeks 26 discovery. (ECF No. 31.) Respondents opposed, and Stone replied. (ECF Nos. 30, 27 31.) 28 II. Motion for Leave to Conduct Discovery a. Legal Standard Rule 6(a) of the Rules Governing § 2254 Cases provides that “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure . . . .” In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court held that Rule 6 was meant to be applied consistently with its prior opinion in Harris v. Nelson, 394 U.S. 286 (1969), which expressly called for the adoption of the rule. 520 U.S. at 904 & 909. In Harris, the Supreme Court held that “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” 394 U.S. at 300. In Bracy, a unanimous Supreme Court overturned a decision denying discovery where the petitioner’s claim of judicial bias in his particular case was based on “only a theory,” where the claim was “not supported by any solid evidence” with regard to the theory, and where the Supreme Court expressly noted that “[i]t may well be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support” the theory that the petitioner sought to pursue in the discovery. 520 U.S. at 908 & 909. The Ninth Circuit, consistent with Bracy and Harris, has held that habeas discovery is appropriate in cases where the discovery sought only might provide support for a claim. See, e.g., Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997). See also Osborne v. District Attorney’s Office, 521 F.3d 1118, 1133 (9th Cir. 2008), rev’d on other grounds, District Attorney’s Office v. Osborne, 557 U.S. 52 (2009) (in discussing its precedent in Jones as to habeas discovery, the Ninth Circuit reinforced the point that a court should allow discovery that, as emphasized by the Court of Appeals, only “may establish” a factual basis for the petitioner’s claim). b. Discovery Sought In his motion to conduct discovery, Stone explains that he seeks to pursue claims related to demonstrating his innocence. (ECF No. 28.) The FPD states that she took reasonable steps to obtain the original discovery in this case where the judgment of conviction dates back to 2004. Counsel unsuccessfully tried to contact Stone’s initial defense attorney; she was able to reach Stone’s trial attorney, who no longer had the file due to the age of the case. His direct appeal counsel also no longer had the case file. Thus, Stone now argues that what he requests constitutes recovery, not discovery. Specifically, he requests:

• Leave to subpoena the Las Vegas Metropolitan Police Department for 11 any and all records and/or evidence related to this case (Event No. 001108-2360). 12 • Leave to subpoena the Clark County District Attorney’s Office for any 13 and all records and/or evidence related to this case (Eighth Judicial 14 District Court Case No. C-178669; Las Vegas Justice Court Case No. 01F02496X), including but not limited to any and all records and/or 15 evidence that the DA’s office turned over to the defense (or should have turned over to the defense) during the state court proceedings. 16 (Id. at 3.) 17 Similar to Jones, Stone seeks “discovery” in order to recreate his own file. 18 114 F.3d at 1009. In Jones, the court held that the district court erred in denying 19 the petitioner’s request for “discovery” to recreate his file by seeking documents 20 from his trial lawyer, his pretrial investigator, and the prosecutor in his case. Id. 21 Stone likewise seeks the materials that already existed at the time of trial, 22 including the complaining witness’ statements, but which he does not have 23 because his trial and appellate counsel destroyed his files. Defense counsel was 24 legally entitled to written and recorded statements by prosecution witnesses and 25 expert materials. See NRS 174.235(1)(a) (requiring prosecution to disclose upon 26 request “any written or recorded statements” made by prosecution witnesses) and 27 NRS 174.234(2)(a)-(c) (requiring disclosure of a description of the expert witness’s 28 || testimony, curriculum vitae, and reports). As Stone makes clear, nothing sought is new evidence and is sought to || support a claim of actual innocence. Respondents argue that Stone fails to state || good cause for obtaining these materials and that Stone is essentially seeking || another bite at the apple to manufacture a claim that does not exist. But they do || not deny that the materials exist, Stone was legally entitled to them, they were || either previously disclosed or would have been accessible to trial counsel, and, if || developed, could possibly show that Stone is entitled to relief on his habeas || claims. III. Conclusion It is therefore ordered that Petitioner’s motion for discovery (ECF No. 28) || is GRANTED. It is further ordered that Petitioner notify the Court when he has completed || the discovery outlined in this Court’s order, which he must complete no later || than 60 days from the date of this order.

DATED THIS 21st day of September 2023.

Ans paid ide a1 ANNE R. TRAUM 29 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28