2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ANDRE DOW, Case No. 3:23-cv-00529-ART-CLB 5 Petitioner, ORDER 6 v.
7 STATE OF NEVADA,
8 Respondents.
9 10 Petitioner Andre Dow, a pro se Nevada prisoner, commenced this habeas 11 action by filing a Petition for Writ of Habeas Corpus (ECF No. 1-1). This habeas 12 matter is before the Court for consideration of Dow’s motion for discovery (ECF 13 No. 16). Respondents filed their response (ECF No. 20) and Dow replied (ECF No. 14 25). Following substitution of Dow’s counsel, he filed a supplement (ECF No. 33).1 15 Also before the Court is Dow’s motion to seal (ECF No. 16) and motion to extend 16 time (ECF No. 32). 17 I. BACKGROUND 18 Dow challenges a conviction and sentence imposed by the Eighth Judicial 19 District Court for Clark County. In October 2008, the state court entered a 20 judgment of conviction for 2 counts of first-degree murder with use of a deadly 21 weapon and one count of conspiracy to commit murder. The state court 22 sentenced Dow to life without the possibility of parole. On May 26, 2010, the 23 1 The Federal Rules of Civil Procedure and Local Rule 72 allow a motion, a 24 response, and a reply. Supplemental filings and “surreplies” (i.e., a second opposition) are expressly prohibited without leave of court and “motions for leave 25 to file a surreply are discouraged.” LR 7-2(b). Petitioner may not file separate motions and separate memoranda or 26 supplements in a never-ending attempt to have the last word on motions before 27 the Court. Petitioner has not moved this Court for, nor has the Court granted, leave to file a supplement. Accordingly, Petitioner’s supplemental filing (ECF 28 No. 33) shall be stricken from the record. 1 Nevada Supreme Court affirmed the judgment of conviction on direct appeal. 2 In April 2015, Dow filed an untimely state habeas petition. Dow asserted 3 good cause and prejudice to excuse procedural default and also argued that he 4 was actually innocent. The Nevada Supreme Court reversed and remanded 5 finding that state district court should conduct an evidentiary hearing to assess 6 Dow’s claim of attorney abandonment and whether he can demonstrate cause to 7 excuse the delay. After an evidentiary hearing, the state district court concluded 8 that Dow demonstrated that he was abandoned by counsel and that he filed his 9 petition within a reasonable time of learning that a petition had not been filed. 10 The state district court denied his state petition because he could not 11 demonstrate undue prejudice stemming from his underlying claims. The Nevada 12 Court of Appeals affirmed the denial of relief on appeal. 13 In December 2021, Dow filed another state habeas petition and the state 14 district court denied relief. On October 31, 2023, Dow filed his federal petition for 15 writ of habeas corpus. ECF No. 1-1. Following appointment of counsel, Dow filed 16 a first amended protective petition. ECF No. 15. The Court granted Dow leave to 17 file a second amended petition, which has not yet been filed. ECF No. 27. 18 Dow raises two claims under Brady v. Maryland, 373 U.S. 83 (1963). In 19 Grounds 25-28, he asserts that the State failed to disclose impeachment 20 information related to Antione Cantrell (“Cantrell”), a witness for the State. In 21 Ground 34, he asserts that the State failed to disclose impeachment information 22 involving San Francisco Police Department Inspector Robert McMillan 23 (“McMillan”). In Ground 8, he asserts counsel rendered ineffective assistance for 24 failure to investigate the murder of Lee Denae Laursen (“Laursen”). Through his 25 instant motion for discovery, Dow requests leave to conduct discovery to obtain 26 (1) any records, documents, and other information discoverable under Brady 27 related to Cantrell, (2) any records, documents, and other information 28 discoverable under Brady related to McMillan, including a copy of his personnel 1 file, (3) any records, documents, and other information discoverable under Brady 2 related to Lee Denae Laurson, and (4) any records, documents, and other 3 information disclosed by the State to Dow’s trial counsel. 4 II. GOVERNING LAW 5 Discovery in habeas matters is governed by Rule 6(a) of the Rules 6 Governing Section 2254 Cases, which provides: “A judge may, for good cause, 7 authorize a party to conduct discovery under the Federal Rules of Civil Procedure 8 and may limit the extent of discovery.” To determine whether a petitioner has 9 established “good cause” for discovery, the Court identifies the essential elements 10 of the substantive claim and analyzes whether “specific allegations before the 11 court show reason to believe that the petitioner may, if the facts are fully 12 developed, be able to demonstrate” entitlement to relief. Bracy v. Gramley, 520 13 U.S. 899, 908–09 (1997); Roseberry v. Ryan, 289 F. Supp. 3d 1029, 1034 (D. Ariz. 14 2018). Thus, the purpose of discovery in a habeas proceeding is not to develop 15 new claims, but, rather, to develop factual support for specific allegations in 16 existing claims. See Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1990) 17 (“Habeas is an important safeguard whose goal is to correct real and obvious 18 wrongs. It was never meant to be a fishing expedition for habeas petitioners to 19 ‘explore their case in search of its existence.””). 20 III. DISCUSSION 21 Respondents oppose Dow’s motion for discovery, arguing that Dow fails to 22 establish good cause because (1) Dow’s discovery requests are premature because 23 Dow intends to, but has yet to file his second amended petition, (2) Grounds 17 24 and 24-27 are likely procedurally defaulted, and (3) the evidence Dow seeks will 25 not be admissible under 28 U.S.C. § 2254(e)(2). Dow rebuts that his discovery 26 requests relate to claims for relief asserted in his first amended petition, which 27 negates the need for his second amended petition to be filed before the motion for 28 discovery. He further asserts that Respondents’ arguments related to procedural 1 default and admissibility are themselves premature as the Court considers 2 “specific allegations” that are “before the court” when analyzing whether there is 3 “reason to believe that the petitioner may, if the facts are fully developed, be able 4 to demonstrate” entitlement to relief. Bracy, 520 U.S. at 908–09. 5 As Dow asserts, he needs to obtain materials disclosed to the defense to 6 show that his trial counsel was ineffective for not investigating Cantrell or 7 Laursen’s murder and that the requested discovery is sought to support Brady- 8 related claims. In addition, the Court does not make a determination at this time 9 as to every potential procedural issue, as granting discovery may more fully 10 inform its consideration of at least some of the issues later in the case, or the 11 Court’s ability to consider the evidence sought on merits review. Moreover, the 12 Court does not make any comment regarding the viability or merit of any of Dow’s 13 claims. When the Court reaches merits review, it will address to what extent 28 14 U.S.C. § 2254(e)(2) limits the evidence that this Court considers. The Court finds 15 that Dow has established good cause and grants his motion for discovery.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ANDRE DOW, Case No. 3:23-cv-00529-ART-CLB 5 Petitioner, ORDER 6 v.
7 STATE OF NEVADA,
8 Respondents.
9 10 Petitioner Andre Dow, a pro se Nevada prisoner, commenced this habeas 11 action by filing a Petition for Writ of Habeas Corpus (ECF No. 1-1). This habeas 12 matter is before the Court for consideration of Dow’s motion for discovery (ECF 13 No. 16). Respondents filed their response (ECF No. 20) and Dow replied (ECF No. 14 25). Following substitution of Dow’s counsel, he filed a supplement (ECF No. 33).1 15 Also before the Court is Dow’s motion to seal (ECF No. 16) and motion to extend 16 time (ECF No. 32). 17 I. BACKGROUND 18 Dow challenges a conviction and sentence imposed by the Eighth Judicial 19 District Court for Clark County. In October 2008, the state court entered a 20 judgment of conviction for 2 counts of first-degree murder with use of a deadly 21 weapon and one count of conspiracy to commit murder. The state court 22 sentenced Dow to life without the possibility of parole. On May 26, 2010, the 23 1 The Federal Rules of Civil Procedure and Local Rule 72 allow a motion, a 24 response, and a reply. Supplemental filings and “surreplies” (i.e., a second opposition) are expressly prohibited without leave of court and “motions for leave 25 to file a surreply are discouraged.” LR 7-2(b). Petitioner may not file separate motions and separate memoranda or 26 supplements in a never-ending attempt to have the last word on motions before 27 the Court. Petitioner has not moved this Court for, nor has the Court granted, leave to file a supplement. Accordingly, Petitioner’s supplemental filing (ECF 28 No. 33) shall be stricken from the record. 1 Nevada Supreme Court affirmed the judgment of conviction on direct appeal. 2 In April 2015, Dow filed an untimely state habeas petition. Dow asserted 3 good cause and prejudice to excuse procedural default and also argued that he 4 was actually innocent. The Nevada Supreme Court reversed and remanded 5 finding that state district court should conduct an evidentiary hearing to assess 6 Dow’s claim of attorney abandonment and whether he can demonstrate cause to 7 excuse the delay. After an evidentiary hearing, the state district court concluded 8 that Dow demonstrated that he was abandoned by counsel and that he filed his 9 petition within a reasonable time of learning that a petition had not been filed. 10 The state district court denied his state petition because he could not 11 demonstrate undue prejudice stemming from his underlying claims. The Nevada 12 Court of Appeals affirmed the denial of relief on appeal. 13 In December 2021, Dow filed another state habeas petition and the state 14 district court denied relief. On October 31, 2023, Dow filed his federal petition for 15 writ of habeas corpus. ECF No. 1-1. Following appointment of counsel, Dow filed 16 a first amended protective petition. ECF No. 15. The Court granted Dow leave to 17 file a second amended petition, which has not yet been filed. ECF No. 27. 18 Dow raises two claims under Brady v. Maryland, 373 U.S. 83 (1963). In 19 Grounds 25-28, he asserts that the State failed to disclose impeachment 20 information related to Antione Cantrell (“Cantrell”), a witness for the State. In 21 Ground 34, he asserts that the State failed to disclose impeachment information 22 involving San Francisco Police Department Inspector Robert McMillan 23 (“McMillan”). In Ground 8, he asserts counsel rendered ineffective assistance for 24 failure to investigate the murder of Lee Denae Laursen (“Laursen”). Through his 25 instant motion for discovery, Dow requests leave to conduct discovery to obtain 26 (1) any records, documents, and other information discoverable under Brady 27 related to Cantrell, (2) any records, documents, and other information 28 discoverable under Brady related to McMillan, including a copy of his personnel 1 file, (3) any records, documents, and other information discoverable under Brady 2 related to Lee Denae Laurson, and (4) any records, documents, and other 3 information disclosed by the State to Dow’s trial counsel. 4 II. GOVERNING LAW 5 Discovery in habeas matters is governed by Rule 6(a) of the Rules 6 Governing Section 2254 Cases, which provides: “A judge may, for good cause, 7 authorize a party to conduct discovery under the Federal Rules of Civil Procedure 8 and may limit the extent of discovery.” To determine whether a petitioner has 9 established “good cause” for discovery, the Court identifies the essential elements 10 of the substantive claim and analyzes whether “specific allegations before the 11 court show reason to believe that the petitioner may, if the facts are fully 12 developed, be able to demonstrate” entitlement to relief. Bracy v. Gramley, 520 13 U.S. 899, 908–09 (1997); Roseberry v. Ryan, 289 F. Supp. 3d 1029, 1034 (D. Ariz. 14 2018). Thus, the purpose of discovery in a habeas proceeding is not to develop 15 new claims, but, rather, to develop factual support for specific allegations in 16 existing claims. See Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1990) 17 (“Habeas is an important safeguard whose goal is to correct real and obvious 18 wrongs. It was never meant to be a fishing expedition for habeas petitioners to 19 ‘explore their case in search of its existence.””). 20 III. DISCUSSION 21 Respondents oppose Dow’s motion for discovery, arguing that Dow fails to 22 establish good cause because (1) Dow’s discovery requests are premature because 23 Dow intends to, but has yet to file his second amended petition, (2) Grounds 17 24 and 24-27 are likely procedurally defaulted, and (3) the evidence Dow seeks will 25 not be admissible under 28 U.S.C. § 2254(e)(2). Dow rebuts that his discovery 26 requests relate to claims for relief asserted in his first amended petition, which 27 negates the need for his second amended petition to be filed before the motion for 28 discovery. He further asserts that Respondents’ arguments related to procedural 1 default and admissibility are themselves premature as the Court considers 2 “specific allegations” that are “before the court” when analyzing whether there is 3 “reason to believe that the petitioner may, if the facts are fully developed, be able 4 to demonstrate” entitlement to relief. Bracy, 520 U.S. at 908–09. 5 As Dow asserts, he needs to obtain materials disclosed to the defense to 6 show that his trial counsel was ineffective for not investigating Cantrell or 7 Laursen’s murder and that the requested discovery is sought to support Brady- 8 related claims. In addition, the Court does not make a determination at this time 9 as to every potential procedural issue, as granting discovery may more fully 10 inform its consideration of at least some of the issues later in the case, or the 11 Court’s ability to consider the evidence sought on merits review. Moreover, the 12 Court does not make any comment regarding the viability or merit of any of Dow’s 13 claims. When the Court reaches merits review, it will address to what extent 28 14 U.S.C. § 2254(e)(2) limits the evidence that this Court considers. The Court finds 15 that Dow has established good cause and grants his motion for discovery. 16 The Court therefore grants Dow leave to issue subpoenas to (1) any relevant 17 persons or entities, including the United States Attorney’s Office for the Northern 18 District of California, the Federal Bureau of Investigation, the Fairfield, California 19 Police Department, and any related persons entities, or departments for any and 20 all records, documents, and other information discoverable under Brady v. 21 Maryland regarding Antoine Cantrell; (2) to any relevant persons or entities, 22 including the San Francisco Police Department, the San Francisco District 23 Attorney’s Office, and any related persons, entities, or departments for (a) any 24 and all records, documents, and other information discoverable under Brady 25 regarding Inspector Robert McMillan, and (b) a complete copy of the personnel 26 file for Inspector Robert McMillan; (3) to any relevant persons or entities, 27 including the Fairfield, California Police Department, the Vallejo, California Police 28 Department, and any related persons, entities or departments for any and all 1 records, documents, and other information discoverable under Brady regarding 2 the death of Lee Denae Laursen; and (4) to any relevant persons or entities, 3 including the Clark County District Attorney’s Office, and any related persons, 4 entities, or departments for any and all records, documents, and other 5 information disclosed by the State to Dow’s trial counsel in connection with the 6 underlying criminal case. 7 IV. MOTION TO SEAL 8 Dow seeks leave to file under seal a transcript of a pretrial deposition (ECF 9 No. 17) that was filed under seal in state court: Exhibit BJ (ECF No. 18), dated 10 August 28, 2007. 11 Having reviewed and considered the matter in accordance with Kamakana 12 v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, 13 the Court finds that a compelling need to protect Petitioner’s safety, privacy, 14 and/or personal identifying information outweighs the public interest in open 15 access to court records. Accordingly, the motion (ECF No. 17) is granted, and 16 Exhibit BJ (ECF No. 18) is considered properly filed under seal. 17 V. MOTION TO EXTEND 18 Dow seeks an enlargement of time to file his second amended petition. ECF 19 No. 32. The Court finds that the request is made in good faith and not solely for 20 the purpose of delay, and therefore, good cause exists to grant the motion. Dow 21 has until September 29, 2025, to file his second amended petition. 22 VI. CONCLUSION 23 IT THEREFORE IS ORDERED: 24 1. Petitioner Andre Dow’s Motion for Discovery (ECF No. 16) is granted. 25 Dow must file a status report on the earlier of completion of discovery 26 or within 90 days. 27 2. Petitioner’s Motion to Seal (ECF No. 17) is granted. ECF No. 18 is 28 considered properly filed under seal. 1 3. Petitioner’s Motion to Extend (ECF No. 32) is granted. Dow has until 2 September 29, 2025, to file his second amended petition. 3 DATED THIS 25th day of April, 2025. 4 5 ee 6 Ares jot? 7 ANNER.TRAUM 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28