Opinion
No. 99-11525-NMG
January 10, 2001
MEMORANDUM AND ORDER ON PETITIONER LOPEZ'S MOTION TO EXPAND THE RECORD AND MOTION FOR LEAVE TO CONDUCT ADDITIONAL DISCOVERY
This matter was referred to this court for ruling on the Petitioner's Motion to Expand the Record and Motion for Leave to Conduct Additional Discovery (Docket #11). As detailed below, the petitioner's motion is DENIED.
Background
On August 14, 1995, Albert Lopez ("Lopez") was convicted by a jury of conspiring to possess with intent to distribute heroin and cocaine base ( 21 U.S.C. § 846); possession of heroin with intent to distribute ( 21 U.S.C. § 841(a)(1)); two counts of possession of cocaine base with intent to distribute and distribution ( 21 U.S.C. § 841(a)(4)); and two counts of criminal forfeiture ( 21 U.S.C. § 853). Because of three prior narcotics convictions, Lopez was given a mandatory life sentence. The First Circuit affirmed the conviction in United States v. Lopez, 147 F.3d 1 (1st Cir. 1998).
On July 12, 1999, Lopez filed a petition pursuant to 28 U.S.C. § 2255 to vacate his sentence, set aside his conviction, and hold a new trial. On December 12, 1999, Lopez filed a motion for leave to supplement his § 2255 petition, which was subsequently allowed by the district court (Gorton, J.) on May 4, 2000. By this supplement, Lopez, a Hispanic male from western Massachusetts, added a claim alleging that the United States District Attorney for the District of Massachusetts engaged in a policy of selective prosecution based on race when prosecuting federal drug offenses. The motions at issue relate to this supplemental claim.
On October 10, 2000, the petitioner filed a "second supplement" to his petition for a writ of habeas corpus seeking to add a claim pursuant to the recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). That motion is not before this court and remains pending.
Specifically, Lopez relies on the decision in United States v. Tuitt, 68 F. Supp.2d 4 (D. Mass. 1999), and a related September 26, 1999 article in The Boston Globe to support his request for discovery on his selective prosecution claim. In Tuitt, Magistrate Judge Neiman granted a black defendant charged with distributing crack cocaine pre-trial discovery relating to whether federal controlled substance laws prohibiting distribution of cocaine in the form of cocaine base were being unfairly, arbitrarily, and discriminatorily enforced against him. The decision was based on public federal and state court data which demonstrated that no whites had been prosecuted in federal courts of the western section of the district, but that similarly situated whites had been prosecuted in state court in western Massachusetts counties. Thus, the court determined, Tuitt had demonstrated the threshold level of selective prosecution to warrant discovery.
Lopez is seeking virtually the same discovery as permitted in Tuitt. He has offered no evidence to support his request for discovery other than the facts reported in the Tuitt decision. However, given the differences between Lopez's case and the issues raised in Tuitt, Lopez's reliance on that case is misplaced. Lopez has not met his threshold burden justifying discovery.
Tuitt involved pre-trial discovery, which is more liberally granted than in connection with a habeas petition. However, given the rigorous standard for discovery in a selective prosecution claim, the different discovery standards are not controlling in this decision.
The Standard For Discovery
Rule 6(a) of the Rules Governing § 2255 cases provides that:
A party may invoke the processes of discovery available under the Federal Rules of Criminal Procedure or Federal Rules of Civil Procedure or elsewhere in the usages and principals of law 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 habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of course." Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997); see also Huenefeld v. Maloney, 62 F. Supp.2d 211, 235 (D. Mass. 1999). 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, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Bracy, 520 U.S. at 908-09, 117 S.Ct. at 1799 (quotingHarris v. Nelson, 394 U.S. 286. 300, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969)); see also Huenefeld, 62 F. Supp.2d at 235 (petitioner's conclusory allegation that requested materials would demonstrate "the blatantly false nature of physical evidence" that formed basis for his conviction was not sufficient to demonstrate good cause for purposes of permitting petitioner to engage in discovery).
In order to determine whether the petitioner is entitled to discovery under Rule 6(a) for his claim of selective prosecution, this court must first identify the "essential elements" of his claim. Bracy, 520 U.S. at 904, 117 S.Ct. at 1797 (citing United States v. Armstrong, 517 U.S. 456, 468, 116 S.Ct. 1480, 1488, 134 L.Ed.2d 687 (1996)). Then the court must determine whether the petitioner's allegations establish "good cause" to necessitate discovery to prove his claims. See id., 520 U.S. at 905-06; 117 S.Ct. at 1797.
By asserting a selective prosecution claim, the petitioner "must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose."Armstrong, 517 U.S. at 465, 116 S.Ct. at 1487 (citations and internal quotations omitted). "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Id. Courts are hesitant to examine the decision whether to prosecute because of "a concern not to unnecessarily impair the performance of a core executive constitutional function." See id. at 465, 116 S.Ct. at 1486. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Id. at 464, 116 S.Ct. at 1486 (citing Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985)).
Discovery in aid of a selective prosecution claim is also subject to a rigorous standard. See Armstrong, 517 U.S. at 468, 116 S.Ct. at 1488. The "showing necessary to obtain discovery should itself be a significant barrier to litigation of insubstantial claims." See id. at 463-64, 116 S.Ct. at 1486. The threshold requirement to obtain discovery is a "credible showing of different treatment of similarly situated persons."Id. at 470, 116 S.Ct. at 1489.
Based on The Boston Globe article and the decision by Judge Nieman inTuitt, Lopez claims that there appears to be a racial component used by the U.S. Attorney's Office in determining who is prosecuted for federal drug offenses in Massachusetts, and further that blacks and hispanics are prosecuted in much greater numbers than whites even though there are more white drug users. According to Lopez, these actions show a long standing policy of selective prosecution in the U.S. Attorney's Office. (See Petitioner's Supplement to 28 U.S.C. § 2255, ¶ 4).
The Proffered Facts
Lopez, an hispanic male, was indicted in 1995. As detailed above, Lopez relies on the facts presented in Tuitt to support his selective prosecution claim. However, assuming arguendo that Lopez is deemed to be offering the same evidence as was offered in Tuitt, that evidence concerns a different time period, and casts no light on whether there was any selective prosecution going on at the time of Lopez's indictment.
In Tuitt, the defendant, an African-American male, was indicted in December 1998 for the alleged sale of crack cocaine to an undercover agent. See Tuitt 68 F. Supp.2d at 5. In support of his selective prosecution claim and motion to obtain discovery, Tuitt offered evidence that no whites were prosecuted for cocaine base offenses in the federal system during the calendar year 1998 in the western counties of Massachusetts. See id. at 7-8. In contrast, fourteen black males, three black females, and two hispanic males were federally indicted. The defendant then contrasted the 1998 federal data with state court data, which established, according to Tuitt, that blacks accounted for 57%, hispanics 33% and whites 10% of prosecutions in state court in 1998. See id.
The court noted that the defendant also claimed that no non-hispanic whites were charged in the western section of the district in 1996, 1997, and 1999 (January through May). See Tuitt, 68 F. Supp.2d at 8. Because the government did not respond to these factual allegations, the court focused its analysis on the data provided by the defendant relating to the 1998 calendar year only. See id. No information even was proffered regarding 1995, the year Lopez was indicted.
Tuitt also presented evidence that during 1998, there was one indictment involving powder cocaine in the western section of the district and the three defendants charged in that indictment were all hispanic. Id.
The court in Tuitt also took notice of the racial make-up of the four western counties in its jurisdiction. See id. at 9. "Hampden County, from which the state prosecution data has been derived, has a total population of 440,974, of which non-hispanic whites represent 78.2% (344,713) and blacks represent 9.8% (43,014)." "Of the remaining three counties, with a total population of 355,721, 93.9% (334,173) are non-hispanic whites, whereas blacks comprise barely 2.0% (7,123).
Even assuming that the Tuitt evidence is sufficient to establish the level of prosecution of hispanics as opposed to blacks, the data gathered in Tuitt is not sufficient to support discovery of Lopez's claim of selective prosecution. In Tuitt, the focus of the court's analysis of the data proffered was 1998, the year that Tuitt was indicted. In the case at bar, however, Lopez was indicted in February 1995. Nothing in Judge Nieman's decision indicates a proffer of data relating to either federal prosecutions or state court prosecutions for crack cocaine in the 1995 calendar year. It would be unreasonable to use the 1998 data to extrapolate a policy of selective prosecution dating back to 1995. As a result, there is no evidence in Tuitt which satisfies Lopez's obligation to make a threshold showing of different treatment of similarly situated persons. See United States v. Gilbert, 75 F. Supp.2d 12, 16 (D. Mass. 1999) (statistical information relied upon by defendant was not specific to her case and did not support an inference that a decision to prosecute her was discriminatorily based), citing cases. Lopez, therefore, is not entitled to the requested discovery.
Under Rule 7(a) of the Rules Governing Section 2255 Proceedings, the record may be expanded "by the inclusion of additional materials relevant to the determination of the merits of the motion." Because the petitioner's motion for leave to conduct discovery is denied, the defendant's motion for expansion of the record is unnecessary and is also denied.
ORDER
For the foregoing reasons, it is hereby ORDERED that the petitioner's Motion to Expand the Record and Motion for Leave to Conduct Discovery is DENIED .