Opinion
Criminal No. 2:06-cr-0129-5 Civil Case No. 2:12-cv-0277
08-05-2013
Randolph Speer, Petitioner v. United States of America, Respondent
Judge Marbley
Magistrate Judge Abel
Order
Petitioner Randolph Speer brings this action for habeas corpus relief under 28 U.S.C. § 2255. He was convicted of one count of conspiracy to commit securities and wire fraud, 18 U.S.C. § 371, three counts of securities fraud, 15 U.S.C. §§ 77q(a), 77x and 2, one count of wire fraud, 18 U.S.C. §§ 1343 and 2, one count of conspiracy to commit money laundering, 18 U.S.C. § 1956, and five counts of concealment money laundering, 18 U.S.C. § 1956(a)(1)(B)(i). On appeal, these convictions were affirmed, with the exception that the convictions for five counts of money laundering were reversed and vacated. United States v. Speer, 419 Fed. Appx. 562, 2011 WL 1211097 (6th Cir. April 1, 2011). In his motion to vacate sentence, Speer argues that his remaining convictions should be vacated because of prosecutorial misconduct at trial, violations of the Federal Rules of Evidence, and lack of constitutionally adequate legal representation at trial. This matter is before the Magistrate Judge on Speer's June 27, 2012 Request for Order (doc. 1175); June 29, 2012 Statement Regarding Legal Representation (doc. 1178); July 16, 2012 Order for Respondent to Answer Petitioner's Claims (doc. 1187); July 23, 2012 Motion for Jurisdiction (doc. 1188); September 17, 2012 Motion for Production of Documents (doc. 1198); October 1, 2012 Motion for Discovery (doc. 1207); October 15, 2012 Motion for Additional Discovery (doc. 1213); December 26, 2012 Motion for Further Discovery (doc. 1217); March 11, 2013 Motion to Order Discovery (doc. 1223); May 15, 2013 Motion for Further Discovery (doc. 1231); May 23, 2013 Motion to Take Judicial Notice and to Expand the Record (doc. 1232); June 17, 2013 Motion for Discovery and to Expand the Record (doc. 1234); June 24, 2013 Motion to Expand the Record (doc. 1235); and his July 8, 2013 Motion to Expand the Record (doc. 1236) as well as the government's September 7 and September 17, 2012 Motions to Quash (doc. 1195).
Docs. 1175, 1178, 1187 and 1188. Petitioner Speer's June 27, 2012 Request for Order (doc. 1175) is MOOT. He states that he filed a waiver of his attorney-client privilege and asks that the court order respondent to file its response to his motion to vacate sentence. On September 10, 2012, respondent did file its opposition to the motion to vacate sentence. (Doc. 1197.) Petitioner's June 29, 2012 Statement Regarding Legal Representation (doc. 1178) is MOOT for the same reason. In the motion, petitioner argues that the United States does not need his waiver of the attorney-client privilege to respond to his prosecutorial misconduct argument and that, if that argument prevails, he will have demonstrated ineffective assistance of counsel. Since the merits briefs have been filed, the court will consider the merits of this argument when it addresses the arguments made in the briefs supporting and opposing the motion to vacate sentence. Petitioner's July 16, 2012 Order for Respondent to Answer Petitioner's Claims (doc. 1187) is MOOT for the same reason. The United States has filed its response to the motion to vacate sentence. Finally, petitioner's July 23, 2012 Motion for Jurisdiction (doc. 1188) is baseless. He argues that the court should capitalize his name. The court will follow normal spelling and grammar practices, which do not require anyone's name to be spelled in all CAPS.
Motions regarding discovery: Docs. 1195, 1199, 1200, 1207, 1213, 1217, 1223, 1231, 1232, 1234, 1235, and 1236. A habeas corpus petitioner is not entitled to discovery as of right. Bracy v. Gramley, 117 S.Ct. 1793, 1796-97 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). Under the provisions of Rule 6(a), Rules Governing Section 2254 Proceedings in the United States District Court, a petitioner "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 grants leave to do so, but not otherwise." Discovery is warranted only where "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 [.]" Harris v. Nelson, 394 U.S. 286, 299 (1969), quoted in Bracy v. Gramley, 117 S.Ct. at 1799; Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). When a petitioner fails to make "a fact specific showing of good cause under Rule 6," the court will deny the discovery requests as a mere fishing expedition. Stanford v. Parker, above; Williams v. Bagley, above. Rule 7, Rules Governing Section 2254 Cases, further limits discovery, allowing only the "addition of records which are relevant to the merits of a habeas corpus petition."
Here petitioner has made no showing of good cause. He has failed to identify specific allegations which would be proven by the discovery he requests. Moreover, the discovery would not be relevant to his ineffective assistance of counsel claim, because it is based on his attorney's failure to object to evidence offered by the prosecution during trial. His other two claims for relief, prosecutorial misconduct and evidentiary errors, could have been raised on direct appeal. Indeed, Speer's main argument supporting his motion to vacate sentence is that he is not guilty of the crimes for which he was convicted. The evidence petitioner cites supporting that assertion was available to him at trial. Further, that argument was rejected by the court of appeals on direct appeal. Claims that were or could have been raised on direct appeal may not be raised in a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Those claims are procedurally defaulted. A motion to vacate sentence under §2255 may not serve as a substitute or a supplementary proceeding for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982). A defaulted claim cannot be raised on a §2255 motion unless a petitioner can demonstrate "cause" for each failure to raise the claim and "actual prejudice" resulting from the error. Murry v. Carrier, 477 U.S. 478, 485 (1986). Here petitioner does not allege either cause for his default or resulting prejudice.
Since petitioner has failed to demonstrate good cause to conduct discovery, his September 17, 2012 Motion for Production of Documents (doc. 1198); October 1, 2012 Motion for Discovery (doc. 1207); October 15, 2012 Motion for Additional Discovery (doc. 1213); December 26, 2012 Motion for Further Discovery (doc. 1217); March 11, 2013 Motion to Order Discovery (doc. 1223); May 15, 2013 Motion for Further Discovery (doc. 1231); May 23, 2013 Motion to Take Judicial Notice and to Expand the Record (doc. 1232); June 17, 2013 Motion for Discovery and to Expand the Record (doc. 1234); June 24, 2013 Motion to Expand the Record (doc. 1235); and July 8, 2013 Motion to Expand the Record (doc. 1236) are DENIED and respondent's September 7 and September 17, 2012 Motions to Quash (doc. 1195) are GRANTED.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by the District Judge. The motion must specifically designate the Order, or part thereof, in question and the basis for any objection thereto. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
Mark R. Abel
United States Magistrate Judge