Opinion
Case No. C-1-01-564
June 22, 2002
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR LEAVE TO CONDUCT DISCOVERY
This capital habeas corpus case is before the Court on Petitioner's First Motion for Leave to Conduct Discovery (Doc. No. 20), Respondent's Memorandum in Opposition (Doc. No. 21), and Petitioner's Reply Memorandum in support (Doc. No. 22).
Petitioner seeks to conduct the following discovery, relating to his Third Ground for Relief in his Petition for Habeas Corpus:
(A) Record depositions of the following agencies:
1. Hamilton County Prosecutor's Office;
2. Blue Ash Police Department;
3. Loveland Police Department;
4. Cincinnati Police Department;
5. Blue Ash Fire Department;
6. Hamilton County Sheriff's Office
7. Agencies within all police and fire departments such as the impound lot where Jones' car was taken and the photo lab;
8. Hamilton County Coroner's Office; and
9. Any other investigative authority that conducted forensic work in Jones' case
(B) Depositions of the following persons:
1. All law enforcement personnel involved in the homicide investigation;
2. All Hamilton County assistant prosecuting attorneys involved in Jones' prosecution; and
3. Jones' trial counsel.
Petitioner's's Motion For Leave to Conduct Discovery, Doc #20, pp. 1-4. Respondent opposes all of the requested discovery. (See Respondent's Memorandum in Opposition to Petitioner's First Motion for Leave to Conduct Discovery, Doc #21).
STANDARDS FOR HABEAS CORPUS 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). Rule 6(a) states in part that: "[A] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." A showing of good cause is made "[w]here 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." Bracy v. Gramley, 520 U.S. 899, 908 — 9 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); See also Payne v. Bell, 89 F. Supp.2d 967, 970 (W.D. Tenn. 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). Although it is not necessary for a petitioner to demonstrate that discovery would definitely lead to relief, a petitioner must show good cause to believe that the evidence sought would lead to relevant evidence regarding his petition. Payne v. Bell, 89 F. Supp.2d 967, 970 (W.D.Tenn. 2000). Once good cause is established, the court may allow all discovery procedures permitted by the Federal Rules of Civil Procedure, including the use of interrogatories, depositions, document requests, and requests for tangible evidence. Id.; See also Rule 6(a), Rules Governing § 2254 Cases.
While conducting an analysis that led to the granting of discovery, the Supreme Court, in Bracy v. Gramley, supra, 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 bribed him. 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 Bracy's theory of relief and request for discovery, pointing to specific evidence obtained outside the discovery process which supported his claims. In cases such as Bracy where petitioners present allegations of misconduct by a judicial officer, prosecuting attorney, or law enforcement personnel, "court ordered discovery is often very useful" because in these cases "it may be impossible to prove even a meritorious claim without such court ordered discovery." Payne v. Bell, 89 F. Supp.2d at 970. In some cases, petitioners may not succeed at pointing to specific evidence obtained outside the discovery process as Bracy was able to do. Even in such cases, the Bracy analysis makes it clear that federal district courts should deny a petitioner's request for "a fishing expedition masquerading as discovery", and that petitioners should not prevail on a motions for discovery when presenting only "vague and conclusory assertions." Stanford v. Parker, 266 F.3d at 460. Good cause must be shown, and a showing of good cause is made "[w]here 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." Bracy v. Gramley, 520 U.S. 899, 908 — 9 (1997).
Other parts of habeas corpus procedural jurisprudence, although not relevant to the particular decisions in Harris and Bracy, are helpful in informing the district court's exercise of 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, and logically, there is no good reason to gather evidence which one will not be permitted to present before the federal district court. Before the enactment of the AEDPA, a habeas corpus petitioner had to show cause and prejudice in order to obtain an evidentiary hearing in federal court for claims on which he had not fully developed the factual basis in state court. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Keeney, the Supreme Court aligned the standard for granting an evidentiary hearing in a habeas case with the general standard for considering procedurally defaulted claims set out in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Michael Williams. v. Taylor,529 U.S. 420, 434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
The enactment of the AEDPA has further served to limit the opportunity for presenting new factual evidence in federal habeas cases. Under 28 U.S.C. § 2254(e)(2), a district court is precluded from hearing and considering new factual evidence when the petitioner has failed to develop the factual basis of a claim in state court proceedings, but a petitioner may overcome this hurdle by showing either: (1) that his claim relies on a new rule of constitutional law that was previously unavailable and made retroactive to cases on collateral review by the Supreme Court; or (2) an instance where the facts could not have been discovered through the exercise of due diligence. See 28 U.S.C. § 2254(e)(2). The Supreme Court held in Michael Williams. v. Taylor, 529 U.S. at 434, that "the opening clause of § 2254(e)(2) codifies Keeney's threshold standard of diligence, so that prisoners who would have had to satisfy Keeney's test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by § 2254(e)(2)."
Therefore, it follows from the AEDPA standards that where a Petitioner seeks items of evidence through discovery which could have been obtained and presented during the state court process but were not, a Petitioner should make the required showing of due diligence before being authorized to conduct discovery to obtain the evidence. See Mumia Abu-Jamal v. Horn, 2001 WL 1609690, *14-15 (E.D. Penn.) (Dec. 18, 2001). Again, it is not logical for the Court to allow a petitioner to gather evidence which the petitioner is precluded from presenting. It must be noted, however, that a habeas petitioner may also seek discovery under Rule 6(a) in order to obtain a factual basis on which to excuse procedural default. See Payne v. Bell, 89 F. Supp.2d at 970. When this occurs, the Court should not apply the § 2254(e)(2) standard because discovery is being sought in order to present evidence to fulfill the AEDPA requirements, not to gain factual support for the merits of a claim. Id.; See also Mumia Abu-Jamal v. Horn, 2001 WL 1609690 at *14-15, citing Charles v. Baldwin, 1999 WL 694716, at *1-2 (D.Or.) (Aug. 2, 1999).
Application
In his third claim for relief in his petition for habeas corpus, Petitioner alleges that the prosecution withheld material exculpatory evidence from his trial counsel. In the alternative, Petitioner argues that his defense counsel was ineffective for failing to discover the exculpatory and impeachment evidence.
The Petitioner's discovery requests all relate to his third claim for relief, a Brady claim. Under Brady v. Maryland, the State has a duty to produce exculpatory evidence in a criminal case, and if the State withholds evidence that is material, the conviction must be reversed. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State's duty to disclose exculpatory evidence extends to information in the possession of the prosecutor's office, as well as information in possession of law enforcement agencies responsible for investigating the offense. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Brady "is concerned only with cases in which the government possesses information which the defendant does not, and the government's failure to disclose the information deprives the defendant of a fair trial." United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). There is no Brady violation where the defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information or where the evidence is available to the defendant from another source. See Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000).
In his petition for habeas corpus, Petitioner makes three arguments to establish that the prosecution withheld exculpatory evidence from his trial counsel:
First, Petitioner argues that "the prosecution failed to disclose to Mr. Jones' trial counsel the documents by which the Blue Ash Police Department (the primary law enforcement agency involved in Mr. Jone's prosecution) tracked, tagged and recorded the physical evidence taken into custody during the investigation . . ." Petitioner claims that his post-conviction counsel discovered the existence of the property tags while litigating the State's motion to destroy all evidence. While inspecting the physical evidence in the custody of the Blue Ash Police Department (hereinafter "BAPD"), Petitioner's counsel became aware of the property tags. Petitioner argues that the property tags show serious irregularities within the BAPD's record of evidence, and that this information should have been presented to Petitioner's trial counsel. Although Respondent argues that this claim is procedurally defaulted, Petitioner presented this argument in claim eight of his post-conviction relief petition, but it was denied on its merits.
Second, Petitioner argues that the "prosecution failed to disclose copies of the Blue Ash Police Department's (BAPD) Yearly Reports of criminal activity from BAPD's Hotel/Motel Interdiction Unit." Petitioner claims that during post-conviction, his counsel obtained these reports from discovery materials in the civil case brought by Mrs. Nathan's estate against the owner of the Embassy Suites Hotel. Petitioner asserts that these reports are evidence of the number of criminal acts that occurred at the Embassy Suites Hotel that year and evidence that other Embassy employees had suspicious backgrounds. Petitioner argues that this information could have been used by trial counsel to rebut the State's theory that Jones was the perpetrator of the crime. Although Respondent argues that this claim is procedurally defaulted, Petitioner presented this argument in claim eight of his post-conviction relief petition, but it was denied on its merits.
Third, Petitioner argues that "other undisclosed materials cast further doubt on the reliability of the outcome of Mr. Jones' trial and suggest that additional undisclosed information may still exist." As support for this argument, Petitioner claims that his counsel came into possession of a couple of documents from the Hamilton County Coroner's Office through the independent investigation of Joe Determan, and that the documents at issue had not been previously disclosed by State counsel. One of the documents disclosed to Mr. Determan through the Hamilton County Coroner's file is a BAPD's supplemental report which describes the postmortem examination of the victim, Ms. Nathan, and states that she suffered no defensive wounds The other document is a Microbiology Lab report which shows a positive test for Hepatitis B. Respondent argues that this claim is procedurally defaulted. Petitioner admits that this evidence was not brought before the state court, but argues that it is only because the Petitioner had not yet discovered the evidence. Attorney Greg Meyers has sworn by affidavit that Petitioner's counsel received these documents in April of 2001, after the trial court and court of appeals had denied Mr. Jones' petition for post-conviction relief.
As pointed out by the Respondent in her Memorandum in Opposition to Petitioner's First Motion for Leave to Conduct Discovery, Petitioner alleges in his petition that the report in question revealed that Ms. Nathan had Hepatitis C. Petitioner argues in his First Motion for Leave to Conduct Discovery that the Hamilton County Coroner's investigative file contains a medical report form the Microbiology Reference Laboratory dated September 8, 1994 which establishes that Ms. Nathan tested positive for Hepatitis B Surface Antigen. (See Exhibit 2, Attachment A, Jones First Motion to Conduct Discovery) The Court notes that the Microbiology Reference Laboratory report itself does not contain the name of Ms. Nathan. Rather, it states: "NO NAME", but lists the Medical Center as the Hamilton County Coroner and the specimen date as September 7, 1994. Petitioner asserts that Joe Determan found this document in the Hamilton County Coroner's investigative file.
Claim three states claims upon which federal habeas corpus relief could be granted, and Petitioner has established good cause as argued above to conduct record depositions of the following agencies: the Hamilton County Prosecutor's Office; the Blue Ash Police Department; the Cincinnati Police Department, and the Hamilton County Coroner's Office.
Petitioner has failed to show good cause to conduct the remaining record depositions because the Petitioner had neither pointed to specific evidence obtained outside the record relating to such agencies, nor made specific allegations relating to such agencies. Under the Supreme Court's analysis in Bracy, this Court cannot allow "a fishing expedition masquerading as discovery." Stanford v. Parker, 266 F.3d at 460.
Petitioner has certainly not shown good cause to depose "all law enforcement personnel" involved in the homicide investigation. His Motion is denied as to such personnel without prejudice to its renewal after the records depositions and with specific showings that the deposition of any particular officer has a reasonable probability of disclosing Brady material.
Petitioner may depose his trial counsel, Julius F. Sanks and Catherine Adams, as their testimony may be relevant to his claims of ineffective assistance of counsel at trial.
Petitioner may depose the following Hamilton County Assistant Prosecuting Attorneys involved in Jones' prosecution: Mark E. Piepmeier and Seth S. Tieger.
The discovery allowed herein shall be completed not later than December 31, 2002.