3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 SAMISONI TAUKITOKU, Case No. 3:16-cv-00762-HDM-CSD
6 Petitioner, v. ORDER 7 WARDEN FILSON, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Respondents’ Motion 11 for Partial Reconsideration, or in the Alternative, Motion for 12 Clarification (ECF No. 64). Petitioner Samisoni Taukitoku filed 13 his Opposition (ECF No. 65). Also before the Court is Respondents’ 14 Motion to Suspend Briefing (ECF No. 66), Petitioner’s Opposition 15 (ECF No. 67), and Respondents’ Reply (ECF No. 68). 16 Background 17 The Court granted Taukitoku’s first motion for discovery and 18 instructed the Washoe County District Attorney’s Office to provide 19 all materials previously disclosed to defense before and during 20 Taukitoku’s trial. (ECF No. 25.) After receiving the materials 21 provided as a result of the order granting discovery, counsel 22 conducted its own investigation for the instant habeas case. 23 Counsel located and obtained declarations from several 24 eyewitnesses who claim they saw persons other than Taukitoku fire 25 shots during the fights. (Exs. 5-10; ECF No. 33.) 26 Taukitoku filed a third motion for discovery seeking the 27 release of the State’s ballistics expert, Kevin Lattyak’s 28 (“Lattyak”) bench notes and photographs, on which he based his 1 report, as well as physical evidence, for review by an independent 2 expert. (ECF No. 32.) The Court denied his motion without prejudice 3 finding that Taukitoku should first pursue his unexhausted claims 4 and their related discovery in state court. (ECF No. 41.) The Court 5 then granted Taukitoku’s motion for stay and abeyance pending 6 exhaustion of his unexhausted claims. (ECF No. 44.) The state court 7 dismissed his state habeas petition finding his claims 8 procedurally barred.1 (Ex. 44; ECF No. 47-22.) Taukitoku appealed 9 and the Nevada Supreme Court affirmed. (Ex. 49; ECF No. 47-26.) 10 The Court granted Taukitoku’s motion to reopen and Taukitoku 11 filed his second amended petition. (ECF Nos. 49, 50.) Taukitoku 12 filed a fourth motion for discovery again seeking the release of 13 Lattyak’s bench notes and photographs as well as release of 14 physical evidence, including 2 firearms, 10 projectiles, 16 15 casings, and 1 fragment recovered for examination at Forensic 16 Analytical Crime Lab. (ECF No. 51.) The Court granted Taukitoku’s 17 motion for discovery. (ECF No. 62.) The Court, however, based on 18 Respondents’ concerns regarding potential jeopardization of chain 19 of custody for physical materials, instructed the parties to meet 20 and confer and prepare for the Court a proposed order permitting 21 discovery that will assure that a proper chain of custody will be 22 maintained, and that the integrity of the evidence will be 23 maintained and that sufficient safeguards shall be in place to 24 eliminate any possibility of tampering with or alteration or 25 destruction of the release of physical evidence. (Id. at 9.) 26
27 1 Taukitoku’s requests for an evidentiary hearing in state court were denied. (ECF No. 51 at 11.) 28 1 Discussion 2 I. Motion for Partial Reconsideration, or in the Alternative, Motion for Clarification 3 4 Respondents acknowledge that they are not challenging the 5 Court’s order granting discovery. (ECF No. 64 at 3.) Respondents, 6 however, provide that the Washoe County District Attorney and the 7 Washoe County Sheriff’s department control the physical evidence 8 at issue and that Respondents do not have a client relationship 9 with such agencies; nor do they have independent authority 10 regarding the production of evidence for such agencies. (Id.) 11 Respondents further express concern that a potential meet and 12 confer with Taukitoku may “[blur] the lines between independent 13 agencies and [conflate] the role of the ‘state’ with that counsel 14 for the Warden.” (Id. at 4.) Respondents assert that Rule 45 of 15 the Federal Rules of Civil Procedure allows a third-party to object 16 to a subpoena and that they have to be given an opportunity to 17 reach an agreement about the method of transferring property. (Id.) 18 Respondents request the Court to alter or amend its order to allow 19 “the third parties having control of the evidence to work with 20 Petitioner’s counsel in drafting the necessary orders to allow the 21 release of the evidence for testing by Petitioner’s expert.” (Id. 22 at 4.) 23 In response, Taukitoku asserts that counsel has gathered 24 further information regarding the physical evidence at issue and 25 the chain of custody protocol of the independent examiner. (ECF 26 No. 65 at 2-3.) The physical evidence has been released to the 27 Reno Police Department (“RPD”). The independent examiner, Forensic 28 Analytical Crime Lab, has established chain of custody protocols 1 and, in addition, the physical evidence can be shipped directly to 2 the independent examiner with a tracking number serving to maintain 3 chain of custody. (Id.) Upon confirmation of control of the 4 physical evidence, the Evidence Supervisor at the RPD agreed that 5 the physical evidence can be shipped to the independent examiner 6 and “expressed no other concerns about maintaining chain of 7 custody.” (Id. at 3.) Taukitoku requests that the Court order or 8 authorize a subpoena for the Reno Police Department to release the 9 2 firearms, 10 projectiles, 16 casings, and 1 fragment recovered 10 in connect with this case for examination at Forensic Analytical 11 Crime Lab. (Id. at 4.) 12 The Court agrees with Taukitoku’s assertion that it is not 13 necessary for him at this juncture to further address chain of 14 custody with “third parties.” (Id. at 3.) Entities that are served 15 with subpoenas may raise objections to such subpoenas and Taukitoku 16 represents that he does not anticipate objections from the RPD at 17 this time. (Id.) Accordingly, the Court denies Respondents’ motion 18 for partial reconsideration to the extent that they request 19 Taukitoku work further with third parties having control of the 20 evidence in drafting a subpoena to release the physical evidence. 21 Taukitoku may proceed with issuing a subpoena for the Reno Police 22 Department to release the 2 firearms, 10 projectiles, 16 casings, 23 and 1 fragment recovered in connection with this case for 24 examination at Forensic Analytical Crime Lab upon the 25 representation that the evidence will be sent directly to the lab 26 via certified mail, FedEx, or UPS with all standard chain of 27 custody protocols to be followed. 28 1 II. Motion to Suspend Briefing 2 Respondents request that the Court suspend briefing until the 3 completion of discovery. (ECF No. 66.) They assert that the 4 availability of procedural defenses and their merits analysis may 5 change depending on the outcome of discovery. (Id. at 2.) Taukitoku 6 argues that discovery results would only further support his claims 7 and cause and prejudice argument to overcome anticipated 8 procedural defenses. (ECF No. 67 at 4.) He asserts that a 9 suspension of briefing would cause unnecessary delay and 10 anticipates that retesting and analysis of the physical evidence 11 to take approximately one month. (Id. at 3-4.) Taukitoku, however, 12 has no objection to an extension of time to file a response to his 13 second amended petition. (Id. at 5.) 14 In their reply, Respondents, in the alternative, request a 15 90-day extension of time to file a response to Taukitoku’s second 16 amended petition. (ECF No. 68 at 1.) Respondents assert that any 17 procedural default defense will likely be met with a cause and 18 prejudice argument, including the application of Martinez v. Ryan, 19 566 U.S. 1 (2012), requiring a merits analysis of the claims that 20 Petitioner is developing through discovery. (Id.
Free access — add to your briefcase to read the full text and ask questions with AI
3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 SAMISONI TAUKITOKU, Case No. 3:16-cv-00762-HDM-CSD
6 Petitioner, v. ORDER 7 WARDEN FILSON, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Respondents’ Motion 11 for Partial Reconsideration, or in the Alternative, Motion for 12 Clarification (ECF No. 64). Petitioner Samisoni Taukitoku filed 13 his Opposition (ECF No. 65). Also before the Court is Respondents’ 14 Motion to Suspend Briefing (ECF No. 66), Petitioner’s Opposition 15 (ECF No. 67), and Respondents’ Reply (ECF No. 68). 16 Background 17 The Court granted Taukitoku’s first motion for discovery and 18 instructed the Washoe County District Attorney’s Office to provide 19 all materials previously disclosed to defense before and during 20 Taukitoku’s trial. (ECF No. 25.) After receiving the materials 21 provided as a result of the order granting discovery, counsel 22 conducted its own investigation for the instant habeas case. 23 Counsel located and obtained declarations from several 24 eyewitnesses who claim they saw persons other than Taukitoku fire 25 shots during the fights. (Exs. 5-10; ECF No. 33.) 26 Taukitoku filed a third motion for discovery seeking the 27 release of the State’s ballistics expert, Kevin Lattyak’s 28 (“Lattyak”) bench notes and photographs, on which he based his 1 report, as well as physical evidence, for review by an independent 2 expert. (ECF No. 32.) The Court denied his motion without prejudice 3 finding that Taukitoku should first pursue his unexhausted claims 4 and their related discovery in state court. (ECF No. 41.) The Court 5 then granted Taukitoku’s motion for stay and abeyance pending 6 exhaustion of his unexhausted claims. (ECF No. 44.) The state court 7 dismissed his state habeas petition finding his claims 8 procedurally barred.1 (Ex. 44; ECF No. 47-22.) Taukitoku appealed 9 and the Nevada Supreme Court affirmed. (Ex. 49; ECF No. 47-26.) 10 The Court granted Taukitoku’s motion to reopen and Taukitoku 11 filed his second amended petition. (ECF Nos. 49, 50.) Taukitoku 12 filed a fourth motion for discovery again seeking the release of 13 Lattyak’s bench notes and photographs as well as release of 14 physical evidence, including 2 firearms, 10 projectiles, 16 15 casings, and 1 fragment recovered for examination at Forensic 16 Analytical Crime Lab. (ECF No. 51.) The Court granted Taukitoku’s 17 motion for discovery. (ECF No. 62.) The Court, however, based on 18 Respondents’ concerns regarding potential jeopardization of chain 19 of custody for physical materials, instructed the parties to meet 20 and confer and prepare for the Court a proposed order permitting 21 discovery that will assure that a proper chain of custody will be 22 maintained, and that the integrity of the evidence will be 23 maintained and that sufficient safeguards shall be in place to 24 eliminate any possibility of tampering with or alteration or 25 destruction of the release of physical evidence. (Id. at 9.) 26
27 1 Taukitoku’s requests for an evidentiary hearing in state court were denied. (ECF No. 51 at 11.) 28 1 Discussion 2 I. Motion for Partial Reconsideration, or in the Alternative, Motion for Clarification 3 4 Respondents acknowledge that they are not challenging the 5 Court’s order granting discovery. (ECF No. 64 at 3.) Respondents, 6 however, provide that the Washoe County District Attorney and the 7 Washoe County Sheriff’s department control the physical evidence 8 at issue and that Respondents do not have a client relationship 9 with such agencies; nor do they have independent authority 10 regarding the production of evidence for such agencies. (Id.) 11 Respondents further express concern that a potential meet and 12 confer with Taukitoku may “[blur] the lines between independent 13 agencies and [conflate] the role of the ‘state’ with that counsel 14 for the Warden.” (Id. at 4.) Respondents assert that Rule 45 of 15 the Federal Rules of Civil Procedure allows a third-party to object 16 to a subpoena and that they have to be given an opportunity to 17 reach an agreement about the method of transferring property. (Id.) 18 Respondents request the Court to alter or amend its order to allow 19 “the third parties having control of the evidence to work with 20 Petitioner’s counsel in drafting the necessary orders to allow the 21 release of the evidence for testing by Petitioner’s expert.” (Id. 22 at 4.) 23 In response, Taukitoku asserts that counsel has gathered 24 further information regarding the physical evidence at issue and 25 the chain of custody protocol of the independent examiner. (ECF 26 No. 65 at 2-3.) The physical evidence has been released to the 27 Reno Police Department (“RPD”). The independent examiner, Forensic 28 Analytical Crime Lab, has established chain of custody protocols 1 and, in addition, the physical evidence can be shipped directly to 2 the independent examiner with a tracking number serving to maintain 3 chain of custody. (Id.) Upon confirmation of control of the 4 physical evidence, the Evidence Supervisor at the RPD agreed that 5 the physical evidence can be shipped to the independent examiner 6 and “expressed no other concerns about maintaining chain of 7 custody.” (Id. at 3.) Taukitoku requests that the Court order or 8 authorize a subpoena for the Reno Police Department to release the 9 2 firearms, 10 projectiles, 16 casings, and 1 fragment recovered 10 in connect with this case for examination at Forensic Analytical 11 Crime Lab. (Id. at 4.) 12 The Court agrees with Taukitoku’s assertion that it is not 13 necessary for him at this juncture to further address chain of 14 custody with “third parties.” (Id. at 3.) Entities that are served 15 with subpoenas may raise objections to such subpoenas and Taukitoku 16 represents that he does not anticipate objections from the RPD at 17 this time. (Id.) Accordingly, the Court denies Respondents’ motion 18 for partial reconsideration to the extent that they request 19 Taukitoku work further with third parties having control of the 20 evidence in drafting a subpoena to release the physical evidence. 21 Taukitoku may proceed with issuing a subpoena for the Reno Police 22 Department to release the 2 firearms, 10 projectiles, 16 casings, 23 and 1 fragment recovered in connection with this case for 24 examination at Forensic Analytical Crime Lab upon the 25 representation that the evidence will be sent directly to the lab 26 via certified mail, FedEx, or UPS with all standard chain of 27 custody protocols to be followed. 28 1 II. Motion to Suspend Briefing 2 Respondents request that the Court suspend briefing until the 3 completion of discovery. (ECF No. 66.) They assert that the 4 availability of procedural defenses and their merits analysis may 5 change depending on the outcome of discovery. (Id. at 2.) Taukitoku 6 argues that discovery results would only further support his claims 7 and cause and prejudice argument to overcome anticipated 8 procedural defenses. (ECF No. 67 at 4.) He asserts that a 9 suspension of briefing would cause unnecessary delay and 10 anticipates that retesting and analysis of the physical evidence 11 to take approximately one month. (Id. at 3-4.) Taukitoku, however, 12 has no objection to an extension of time to file a response to his 13 second amended petition. (Id. at 5.) 14 In their reply, Respondents, in the alternative, request a 15 90-day extension of time to file a response to Taukitoku’s second 16 amended petition. (ECF No. 68 at 1.) Respondents assert that any 17 procedural default defense will likely be met with a cause and 18 prejudice argument, including the application of Martinez v. Ryan, 19 566 U.S. 1 (2012), requiring a merits analysis of the claims that 20 Petitioner is developing through discovery. (Id. at 2.) 21 The Court denies Respondents’ request to suspend briefing. 22 The Court, however, finds good cause to grant Respondents’ request 23 to extend time to file their response to the second amended 24 petition. Respondents have until September 23, 2022, to file their 25 response to Taukitoku’s second amended petition. 26 IT IS THEREFORE ORDERED: 27 1. Respondents’ Motion for Partial Reconsideration, or in the 28 Alternative, Motion for Clarification (ECF No. 64) is 1 DENIED to the extent that they request Taukitoku to work 2 further with third parties having control of the evidence 3 in drafting a subpoena to release the physical evidence. 4 2. Taukitoku may proceed with issuing a subpoena to the Reno 5 Police Department to release the 2 firearms, 10 6 projectiles, 16 casings, and 1 fragment recovered in 7 connection with this case for examination at Forensic 8 Analytical Crime Lab upon the representation that the 9 evidence will be sent directly to the lab via certified 10 mail, FedEx, or UPS with all standard chain of custody 11 protocols to be followed. 12 3. Respondents’ Motion to Suspend Briefing (ECF No. 66) is 13 DENIED. Respondents’ request to extend, in the alternative, 14 is GRANTED. Respondents have until September 23, 2022, to 15 file their response to Taukitoku’s second amended petition. 16 DATED: this 6th day of July, 2022. 17 ual 9 ft Ihr» HOWARD D. MCKIBBEN 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28