Opinion
Case No. 1:09-cv-760.
December 2, 2010
DECISION AND ORDER
This case is before the Court on Petitioner's request for discovery which is embedded in his Reply (Doc. No. 13). Petitioner seeks leave to depose attorney Eric Wrage who was his trial attorney and whose ineffectiveness is asserted in the Petition in Ground Four.
The practice of embedding requests for court orders in pleadings is discouraged because such requests can become lost in the electronic case filing system. That did not happen in this case; the point is made only for the general edification of counsel.
The Petition herein was filed pro se, before Mr. Morrison obtained the representation he now enjoys. He pled Ground Four as follows:
Ground Four: Ineffective Assistance of Council [sic]
Supporting Facts: Failed to provide competent legal assistance by not pursuing whether there was an actual misunderstanding of what a no contest plea meant.
(Petition, Doc. No. 1, PageID 9.)
In the Reply, Petitioner's counsel argue that Mr. Wrage provided ineffective assistance in that
Id.
1. He failed "to represent, advise, and consult with his client concerning the no contest plea." (Reply, PageID 425.) 2. He "never pursued his client's competency to understand and accept a "no contest" plea." In the Warden's opposition to discovery, he construes the Reply as raising a number of new claims of ineffective assistance of trial counsel (Doc. No. 15, PageID 492-493). In reply, Petitioner disclaims any intention to raise any new claims (Reply in Support of Discovery, Doc. No. 16, PageID 504-505), stating "[t]here is not a single rule of law or procedure that prohibits a party from advocating or augmenting their legal claim with factual argument in support of the claim." He then states that all he seeks from his prior attorney is "information . . . regarding his advice concerning the plea." Id. at 504.The Court agrees with Petitioner that he is entitled to liberal construction of his Petition, since he filed it pro se. A liberal construction would allow him to make argument beyond his mere pleading about the advice he did or did not receive from Mr. Wrage about pleading no contest. However, Respondent is correct that merely pleading "ineffective assistance of counsel" does not entitled a petitioner to later argue about many different instances of failure of counsel to meet professional standards.
The Court construes the Petition to raise the claim that Mr. Wrage did not properly consult with Petitioner about the meaning of a no contest plea. However, the Court regards any allegation that Mr. Wrage should have pursued a claim that Petitioner was incompetent to plead no contest as well beyond any reasonable construction of the Petition. If, now that Petitioner is represented by counsel, it is desired to make that or any additional claims of ineffective assistance of trial counsel, it must be done by amendment to the Petition.
Respondent argues any new claims would be time-barred (Memo Opp., Doc. No. 15, PageID 494-495). The Court will deal with that question if and when it is presented by a motion to amend the Petition.
Respondent next argues discovery is unwarranted because Petitioner made no attempt to develop this evidence in the state courts. The Court finds this argument well taken.
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 (1997); Harris v. Nelson, 394 U.S. 286 (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. 3rd 809, 813-15 (5th Cir. 2000).
Here Petitioner seeks to discover from his former attorney what the attorney told him about entering a plea of no contest. That would plainly be material to the question whether the advice was competent or not. Moreover, the question is focused — deposing Mr. Wrage on that question would not be the proverbial forbidden "fishing expedition." As at least some counsel litigating this case will realize, this Court has been liberal in allowing depositions of trial and appellate counsel in habeas cases when claims of ineffective assistance of counsel are made.
Of course, the conversation had two participants. The Court is unaware of any evidentiary submission, in this Court or in the state courts, of Petitioner's account of what Mr. Wrage did or did not tell him.
However, although the examination is pertinent to the claim, any results could not be introduced in evidence because Petitioner was not diligent in developing those facts in the state courts.
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 Wainwright v. Sykes, 433 U.S. 72 (1977). Keeney v. Tamayo-Reyes, 504 U.S. 1 (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.
Petitioner does not advert to the Keeney requirement in briefing the discovery motion. Instead he argues that he could not file a state post-conviction petition because he had raised this ineffective assistance of trial counsel claim on direct appeal and obtained a decision on the merits. He argues that if he had thereafter pursued a petition under Ohio Revised Code § 2953.21, he would have been met with the Ohio criminal res judicata defense, enunciated in State v. Perry, 10 Ohio St. 2d 175, 226 N.E. 2d 104 (1967). Under that rule, claims raised and decided on direct appeal cannot be relitigated on collateral attack under Ohio Revised Code § 2953.21.
Of course, if Petitioner had filed a post-conviction petition relying on matter outside the record (e.g., his own affidavit about the advice he did or did not receive), it would have been error for the Ohio courts to enforce the res judicata defense because that defense does not bar considering on collateral attack claims which could not have properly been raised on direct appeal because they depend on matter outside the record. Had the state courts nonetheless enforced the res judicata rule, that would not have been a procedural bar to this Court's considering the claim. When the record reveals that the state court's reliance on its own rule of procedural default is misplaced, federal habeas review is not be precluded. White v. Mitchell, 431 F.3d 517, 527 (6th Cir. 2005), citing Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005); Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001).
However, Petitioner did not even try to introduce evidence outside the record on this claim. Under those circumstances, he has not made the required showing of diligence under Keeney. Therefore he has not shown good cause for the discovery and his request to depose Mr. Wrage is denied.
December 2, 2010.