Opinion
Case No. C-2-01-043
February 18, 2002
DECISION AND ORDER
This capital habeas corpus case is before the Court on Petitioner's Motion for Leave to Conduct Discovery (Doc. No. 32) Respondent's Memorandum in Opposition (Doc. No. 33), and Petitioner's Reply Memorandum in support (Doc. No. 38).
Petitioner seeks to conduct the following discovery assertedly related to the claims for relief set forth with each item of discovery:
Deposition of David Bodiker (trial defense counsel) Claims for Relief: 1, 2, 8, 10
Deposition of Joseph Edwards (trial defense counsel) Claims for Relief: 1, 2, 8,10
Deposition and Records Deposition of William Fineran (Columbus homicide detective) Claims for Relief: 3, 6, 7
Deposition and Records Deposition of Clarence Sorrell (Columbus homicide detective) Claims for Relief: 3, 6, 7
Deposition and Records Deposition of Steve Judy (former Columbus detective) Claims for Relief: 3, 6
Records Deposition of Records Custodian — Columbus Police Department Claims for Relief: 6, 7, 21
Deposition and Records Deposition of Judge Daniel Hogan (former prosecutor) Claims for Relief: 6, 7, 21
Deposition and Records Deposition of Eric Tarbox (former prosecutor) Claims for Relief: 6, 7, 21
Records deposition of Records Custodian — Franklin County Prosecutor's Office Claims for Relief: 6, 7
Deposition and Records Deposition of James McDevitt (Columbus Police Officer) Claims for Relief: 6, 12, 21
Deposition and Records Deposition of David Morris (Columbus Police Officer) Claim for Relief: 7
Deposition of Tabatha Henness (now Tabatha Boyd) Claim for Relief: 6, 7
Records Deposition of Records Custodian — Ohio State Reformatory for Women Claims for Relief: 6, 7
Records Deposition of Records Custodian — Franklin County Jail Claims for Relief: 8, 10
Deposition of Hon. Tommy Thompson (Retired) Claims for Relief: 8, 10
Deposition and Records Deposition of Jeffrey L. Smalldon, Ph.D. Claims for Relief 8, 10
Deposition of all twelve regular jurors as well as all alternates that were permitted to be in jury room during deliberation after the mitigation phase of the trial. Claim for Relief: 11
Deposition and Records Deposition of Dr. Patrick Fardal (Coroner) Claims for Relief: 6, 12, 21
Records Deposition of Clerk of Courts, Franklin County Common Pleas Court Claim for Relief: 8
Deposition of David Graeff (appellate counsel) Claim for Relief: 20
Deposition of Barry Wilford (appellate counsel) Claim for Relief: 20
Motion, Doc. No. 32, 5-7.
Standards for Discovery
A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000). Before determining whether discovery is warranted, the Court must first identify the essential elements of the claim on which discovery is sought. Bracy, citing United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 1488, 134 L.Ed.2d 687 (1996). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001), citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000).
In conducting the analysis that led to granting discovery in Bracy v. Gramley, supra, the Supreme Court provided at least part of the template which lower courts should follow in deciding discovery motions in habeas corpus cases. First of all, it identified the claims to which the sought discovery in that case related and specifically determined whether they were claims upon which habeas corpus relief could be granted at all. Federal habeas corpus is, of course, available only to correct wrongs of constitutional dimension. 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). In Bracy the claim was that the trial judge was biased in favor of other defendants who had bribed him and therefore had a motive to be harsh with those, like the petitioner, who had not. The Supreme Court distinguished this kind of claim of judicial disqualification from other non-constitutional claims which would not be cognizable in habeas corpus. This part of the Bracy analysis makes it clear that discovery should not be authorized on allegations in a habeas corpus petition which do not state a claim upon which habeas corpus relief can be granted.
Secondly, the Supreme Court identified circumstances which corroborated the Bracy's theory of relief and request for discovery, pointing to specific evidence obtained outside the discovery process which corroborated his claims.
Other parts of habeas corpus procedural jurisprudence, although not relevant to the particular decisions in Harris and Bracy, also should inform the a district court's exercise of its discretion in granting discovery under Habeas Rule 6. The purpose of discovery in any case is ultimately to gather evidence which will be put before the court in deciding the case on the merits. In order to obtain an evidentiary hearing in federal court on a claim on which he has not fully developed the factual basis in state court, a habeas corpus petitioner must show cause and prejudice under Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Logically, there is no good reason to gather evidence which one will not be permitted to present because one cannot satisfy the Keeney standard. Therefore, if there are items of evidence sought in discovery which could have been obtained and presented during the state court process but were not, a petitioner should make the required Keeney showing before being authorized to conduct discovery to obtain the evidence. Id., pp. 5-7.
Application
Petitioner may depose his trial and appellate counsel, Messrs. Bodiker, Edwards, Graeff, and Edwards as their testimony may be relevant to his claims of ineffective assistance of counsel at trial and on appeal.
Petitioner may depose William Fineran, Clarence Sorrell, and Steve Judy on his Third Ground for Relief.
Petitioner may not depose Judge Daniel Hogan, Eric Tarbox, the records custodian of the Franklin County Prosecutor's Office, or Columbus Police Officer James McDevitt on his Sixth Ground for Relief as his suspicions that Brady material exists in the relevant files are just that — suspicions. Suspicions about the existence of Brady material, unsupported by corroborating evidence that such material exists in this case, are insufficient to establish good cause. Arguments about the misconduct of Judge Hogan or Officer Judy in other situations are not directly enough related to this case to support discovery.
With respect to that portion of the Seventh Ground for Relief claiming involuntary testimony, Petitioner may depose Tabatha Boyd (fka Tabatha Henness) regarding the voluntariness of her testimony against Petitioner. All other discovery sought on this Ground for Relief is denied without prejudice to its renewal after Ms. Boyd is deposed if her deposition creates good cause for further discovery.
With respect to that portion of the Seventh Ground for relief regarding grand jury testimony, this Court cannot review the claim that the trial judge's decision not to grant access to the grand jury testimony of Roland Fair deserves deference without itself reviewing that testimony. Accordingly, it is hereby ORDERED that the grand jury testimony be produced for in camera inspection.
Although Respondent opposes discovery regarding a videotape admitted in evidence (Memorandum in Opposition, Doc. No. 33, at 10), the Court does not see a request for such discovery in Petitioner's Motion.
Petitioner has not shown good cause to depose Judge Thompson, since he can place of record any discussions between the judge and Mr. Bodiker through the testimony of Mr. Bodiker. Judge Thompson's testimony about advice he obtained from other judges of the Franklin County Common Pleas Court about whether or not to permit withdrawal of trial counsel is not material to whether the decision was correct or not.
Petitioner may depose Jeffrey Smalldon.
With respect to the Eleventh Ground for Relief, Petitioner may not depose either the deliberating trial jurors or the alternates. Although the alternates were permitted to be in the jury room during mitigation phase deliberations, they were specifically instructed not to participate. There is no evidence before this Court that they violated that instruction. Petitioner himself admits "No one knows to what extent they may have participated." Mere speculation that they violated their oath and the instructions is insufficient to support good cause for their depositions.
Petitioner seeks to depose Columbus Police Officer James McDevitt, Franklin County Coroner Patrick Fardal and the Clerk of Courts of Franklin County, Ohio, regarding the physical evidence in this case. Certainly, Petitioner's counsel are entitled to examine all physical evidence admitted in the case and Respondent's counsel shall make all such evidence available for examination forthwith. To the extent an order is needed from this Court to obtain such evidence, counsel for either side may obtain a writ of certiorari.
As quoted above, the Motion for Discovery relates the records deposition of the Clerk of Courts to Ground for Relief 8. The Court assumes this is a typographical error and that Ground 12 was intended.
Petitioner also seeks to discover evidence which was not admitted by the trial court. Obviously, such evidence is not relevant to the Twelfth Ground for Relief, but Petitioner seeks it in support of his Twenty-First Ground, Actual Innocence. Here the teaching of Bracy is particularly relevant. Bracy had presented evidence obtained outside the formal discovery process which made credible his claim that his trial judge may have been bribed by others and therefore biased against him as a non-bribing murder defendant. Petitioner here has presented no evidence of actual innocence, but mere speculation that material in police files or the coroner's file might support such a claim. This request for discovery is therefore like the speculative Brady claim and Petitioner has not shown good cause for it.
The discovery allowed herein shall be completed not later than August 31, 2002.