Opinion
CRIMINAL NO. 08-374
07-18-2017
UNITED STATES OF AMERICA, v. ALONZO LAMAR JOHNSON, Defendant
MEMORANDUM OPINION CONTI, Chief District Judge.
On May 9, 2017, defendant Alonzo Lamar Johnson ("Johnson" or "Defendant") filed a pro se motion that he called a "letter motion" seeking to lift a protective order regarding the Jencks material from his case, and obtain discovery materials from the government. (ECF No. 1129). On May 11, 2017, the government filed a response asking the court to dismiss Johnson's motion.
Defendant's motion recognizes that his writ of certiorari to the Supreme Court was denied and his next step would be to file a habeas petition. Defendant specifically requests that the court "not construe this as a 2255 motion or either a 2241." Defendant "denies that he intend[s] to file a motion for relief under § 2255," and to construe his letter as a § 2255 motion would affect his rights under the AEDPA, so the court will not construe it as such. 28 U.S.C.A. § 2255; See Brown v. U.S., No. 08-CV-019, 2008 WL 305552, at *1 (D. N.H. Feb. 1, 2008) (respecting a defendant's request that his filing not be construed as a § 2255 motion).
Johnson exhausted all possible criminal appeals. He now seeks to conduct discovery before filing a § 2255 or § 2241 motion. "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). A petitioner may only conduct discovery if "the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." 28 U.S.C. § 2254 Rule 6(a). Johnson did not show good cause to authorize discovery.
"Without a formal § 2255 motion before it, this Court cannot fulfill its requirement to determine whether Defendant has satisfied Rule 6's 'good cause' standard." United States v. Lawrence, No. 2:05-CR-011, 2015 WL 7570515, at *3 (S.D. Oh. Nov. 25, 2015). The pre-petition discovery Johnson seeks "is neither specifically allowed nor contemplated by the Habeas Rules or the Federal Rules of Civil Procedure." Orbe v. True, 201 F. Supp. 2d 671, 680 (2002) (refusing to permit pre-habeas petition discovery).
"Habeas Rules" refers to The Rules Governing § 2254 Proceedings for the United States District Courts. --------
In Calderon v. U.S. District Court for the Northern District of California, 98 F.3d 1102 (9th Cir. 1996), a federal prisoner filed a motion to serve subpoenas on the Sacramento District Attorney's Office and the Sacramento Police Department seeking information related to his case. Id. at 1104. The district court granted his motion. Id. The Ninth Circuit Court of Appeals issued a writ of mandamus to vacate the discovery order and prohibit the issuance of further discovery orders until Calderon filed a federal petition for writ of habeas corpus. Id. at 1107. The Ninth Circuit Court of Appeals concluded that "pre-petition discovery is impermissible" because: (1) "a prisoner must outline factual allegations in a petition before the district court will be able to determine the propriety of discovery;" (2) "any right to federal discovery presupposes the presentation of an unexhausted federal claim;" (3) "Rule 6 is limited to 'the processes of discovery available under the Federal Rules of Civil Procedure' and, with one inapplicable exception, the Federal Rules of Civil Procedure do not permit pre-complaint discovery;" and (4) "Courts should not allow prisoners to use federal discovery for fishing expeditions." Id. at 1106.
In a § 2255 case, a defendant must provide "reason to believe that [he] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief." Bracy, 520 U.S. at 908-909. Without a pending § 2255 motion, the court cannot determine if good cause exists to allow Johnson to conduct discovery. The Third Circuit Court of Appeals recently noted, "[a]s an initial matter, because [defendant] does not have a pending § 2255 action in the District Court, it is far from clear that he is permitted under Rule 6 to obtain any discovery whatsoever." In re Platts, 573 F. App'x 87 (3d Cir. 2014) (denying motion because movant had presented claim in a prior § 2255 motion). Under the present circumstances, Johnson is not entitled to prepetition discovery under Rule 6(a) or the Federal Rules of Civil Procedure.
For the foregoing reasons, Defendant's pro se "letter motion" to lift the protective order and compel the government to turn over evidence (ECF No. 1129) will be DENIED without prejudice to Defendant's right to file a § 2255 motion and make the appropriate showings to justify discovery. Defendant is given notice that he must raise all possible collateral challenges in one § 2255 motion. See United States v. Miller, 197 F.3d 644 (3d Cir. 1999).
An appropriate order will be entered contemporaneously with this opinion. July 18, 2017
BY THE COURT:
/s/Joy Flowers Conti
Chief United States District Judge ORDER
AND NOW, on this 18th day of July, 2017, for the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED that Alonzo Lamar Johnson's pro se motion to lift the protective order and compel the government to turn over evidence of May 9, 2017 (ECF No. 1129) is DENIED without prejudice.
BY THE COURT:
/s/Joy Flowers Conti
Chief United States District Judge