Cook v. United States of America

Filing 23

MEMORANDUM OPINION-re: Motion to Subpoena Evidence 21 and Motion for Additional Consideration 22 . Signed by Judge R David Proctor on 7/3/2013. (AVC)

FILED
2013 Jul-03 PM 12:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DARRYL LOVOY COOK,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

}
}
}
}
} Case Nos.: 2:10-cv-8029-RDP-RRA
}
2:07-cr-384-RDP-RRA
}
}
}

MEMORANDUM OPINION
Before the court are two motions filed by Movant that effectively request the same relief.
First, Movant has filed a motion to subpoena evidence pursuant to Federal Rule of Civil Procedure
45 in connection with his § 2255 Motion. (Doc. #21). Movant has also filed a “Motion for
Additional Consideration at Evidentiary Hearing,” which requests the court to initiate an
investigation against the Government and order all officer, agents, and prosecutors to submit
evidence related to Movant’s theory that a massive conspiracy has been undertaken to commit fraud
against this court. (Doc. #22). The court will address Movant’s motions in turn. But first, a brief
exposition of relevant events that occurred during the criminal proceedings and earlier in this § 2255
case will help put these motions in context.
In the underlying criminal proceedings, Movant moved to suppress two sworn statements that
he wrote and signed before Postal Inspector John L. Bailey, alleging that the statements were forged.
(Crim. Doc. #103).1 To resolve this dispute, Magistrate Judge Robert A. Armstrong, Jr. conducted
a hearing on Movant’s motion on January 11, 2008. (Crim. Doc. #277). Both Movant and Inspector

1

To avoid confusion, documents from the docket in the underlying criminal case, United States v. Cook,
2:07-cr-384-RDP-RRA, are marked with “Crim. Doc.” to distinguish them from documents for the instant § 2255 motion.

Bailey, whose signatures appear on the statements, testified during that hearing. (Id. at 2). Inspector
Bailey testified that Movant was notified of his Miranda rights but waived them and that he wrote
the statements in question and signed them. (Id. at 11, 14). Movant testified that he did not waive
his Miranda rights and that, while the signatures on the statements were his, he did not see, much
less write, most of the statements in the documents. (Id. at 58-62). Judge Armstrong noted that
Movant “disputed Inspector Bailey’s testimony to such a degree that either he or Bailey brazenly lied
on the stand.” (Crim. Doc. #138 at 1). Based on the testimony and the exhibits presented at the
hearing, Judge Armstrong determined that it was Movant who lied and recommended that the court
deny the motion to suppress. (Id. at 3).
Movant’s current motions continue to allege that Inspector Bailey forged Movant’s sworn
statements, and ask the court for leave to investigate police and Government documents and
metadata. As a preliminary matter, the court notes that it cannot entertain these arguments in this
§ 2255 proceeding because Movant’s argument is not cognizable under § 2255.
The threshold question the court must consider in a § 2255 case is whether the movant has
stated a claim cognizable under § 2255. Lynn v. U.S., 365 F.3d 1225, 1233 (11th Cir. 2004); Burke
v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). Only constitutional claims, jurisdictional
claims, and claims of error so fundamental as to have resulted in a complete miscarriage of justice
are cognizable on collateral attack. United States v. Addonizio, 442 U.S. 178, 184–86 (1979); Hill
v. United States, 368 U.S. 424, 428 (1962); Richards v. United States, 837 F.2d 965, 966 (11th
Cir.1988); Kett v. United States, 722 F.2d 687, 690 (11th Cir. 1984). Consequently, the Eleventh
Circuit has consistently held that “[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for that narrow compass of other injury that could not have been raised in
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direct appeal and would, if condoned, result in a complete miscarriage of justice.” Richards v.
United States, 837 F.2d at 966 (internal citations omitted). In order to fall under the “fundamental
miscarriage of justice” exception, the movant must show that the alleged constitutional violation
“has probably resulted in the conviction of one who is actually innocent[ .]” Murray v. Carrier, 477
U.S. 478, 496 (1986). Movant has not properly alleged (1) a violation of a constitutional right or (2)
that there was a fundamental miscarriage of justice because he was wrongfully convicted and is
actually innocent. Rather, his failings simply amount to an attempt to relitigate an evidentiary
question that was resolved at trial.
Both Movant’s motions are due to be denied on the ground that they seek relief that is not
cognizable in this § 2255 proceeding. For purposes of thoroughness, the court now turns to each
motion and finds that they are due to be denied for other reasons as well.
I.

The Motion for Discovery
Movant requests the following discovery:
1)

Access to the electronic hard drive, server, or any other
electronic device in which Movant’s manufactured checks are
stored in order to inspect the authenticity of the documents
that form the basis of his conviction. (Doc. #21 at 1).

2)

Sworn depositions by all named parties as to the outcome of
the investigation and their participation in relation to the
documents. (Id. at 2).

3)

Access to the metadata on the Government’s hard drives and
servers. (Id.).

Movant further moves to prohibit the Government from objecting to this discovery request. (Id.).
For the following reasons, this motion is due to be denied.

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Two principles guide the court’s decision. First, federal habeas petitions are only technically
categorized as civil actions; “[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). Habeas petitions seek to collaterally attack judgments reached in cases where discovery has
already been conducted. As such, the Supreme Court held in Harris v. Nelson, 394 U.S. 286, 295
(1969), that the “broad discovery provisions” of the Federal Rules of Civil Procedure do not apply
in habeas proceedings. To address the particular concerns that arise in federal habeas proceedings,
the Supreme Court promulgated, and Congress adopted, the Rules Governing § 2254 and 2255
Proceedings.2 Particularly relevant for this issue is Rule 6(a) of the Rules Governing Section 2255
Proceedings, which provides that a judge may, “for good cause,” authorize a party to conduct
discovery. What constitutes “good cause” is expounded upon in the Advisory Committee Notes to
Rule 6 of the Rules Governing Section 2254 Proceedings3 to include reasons that are based, not in
fantasy, but in specific allegations that give the court reason to believe that the movant’s allegations,
if proven, show that the movant is illegally incarcerated.
The second principle that weighs heavily in the court’s decision is the procedural default rule.
A collateral challenge, such as a § 2255 motion, may not serve as a substitute for a direct appeal. See
United States v. Frady, 456 U.S. 152, 165 (1982); Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004). Therefore, under the procedural default rule, in most instances a defendant must assert
all available claims to challenge his conviction or sentence on direct appeal or else be barred from

2

Available at http://www.uscourts.gov/uscourts/rules/2254-2255.pdf.

3

The Advisory Committee Notes to Rule 6 of the Rules Governing Section 2255 Proceedings state that the
discussion in the Advisory Committee Notes for Rule 6 of the Rules Governing Section 2254 apply fully to both § 2254
and 2255 proceedings.

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presenting that claim in a § 2255 proceeding. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.
1994). A claim not raised on direct appeal is procedurally defaulted unless the movant can establish
cause and prejudice for his failure to assert his claims on direct appeal. McCoy v. United States, 266
F. 3d 1245, 1258 (11th Cir. 2001).
Putting these principles together, there is an insufficient basis to justify granting discovery
here. Movant seeks discovery to show (without providing any colorable basis to suspect) that the
Government and law enforcement officials conspired to create forged documents in order to frame
him with creating counterfeit securities. (Doc. #21). Movant simply has not shown “good cause”
to conduct this discovery.
Furthermore, there is an alternative reason to preclude this discovery. The court notes that
the arguments for which these discovery requests have been made could have been raised at trial and
on direct appeal. The fact that Movant did not successfully pursue such a strategy at trial or on
appeal means that he is not entitled to a second bite at the apple here. Because the argument
underlying this discovery request is procedurally defaulted, Petitioner is not entitled to conduct this
discovery in relation to the argument.
II.

The Motion for Additional Consideration
In its June 21, 2013 Memorandum Opinion, the court concluded that an evidentiary hearing

is appropriate to determine a very limited issue: whether as Movant has alleged, his attorney actually
failed to notify Movant of a plea bargain offered by the Government.4 (Doc. # 18 at 7). In a recently4

As the court noted:
An evidentiary hearing is appropriate if, accepting all of a Movant’s alleged facts
as true (except those that are contradicted by the record), the Movant has alleged
facts that, if proven, would entitle him to relief. See Diaz v. United States, 930 F.2d
832, 834 (11th Cir. 1991). Here, Movant has alleged that his attorney failed to

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filed “Motion for Additional Consideration,” Movant requests the court to expand that evidentiary
hearing into a full investigation of an issue already addressed at the criminal trial: whether Inspector
Baily created false documents to falsely imprison Movant. (Doc. #22 at 3). In addition, Movant’s
request that the court expand its inquiry to entertain this accusation of perjury must be denied for yet
another reason — his allegation is belied by the record.
As the court noted in its June 21, 2013 Memorandum Opinion, an evidentiary hearing “is
appropriate if, accepting all of a movant’s alleged facts as true (except those that are contradicted
by the record), the movant has alleged facts that, if proven, would entitle him to relief.” (Doc. #18
at 7) (emphasis added). However, “[a]n evidentiary hearing is warranted only if there are material
facts that were not adequately developed either in the federal district court or in the state habeas
corpus proceedings.” Futch v. Dugger, 874 F. 2d 1483, 1485 (11th Cir. 1989). In this case, the
record is clear and adequately developed. An evidentiary hearing was held in the underlying criminal
trial to resolve whether the two sworn statements bearing Movant’s signature are authentic. (Crim.
Doc. #277). This question was answered at that hearing and Movant had an opportunity to challenge
that ruling on direct appeal. Accordingly, Movant is not entitled to litigate these claims in this
proceeding. Therefore, Movant’s motion to, in effect, conduct a second evidentiary hearing related
to a matter already settled during the previous criminal proceedings is due to be denied.

notify him of a plea offer extended by the Government. (Doc. #2 at 3). That
allegation, if proven, would entitle Movant to relief. See Missouri v. Frye, 132 S.
Ct. 1399, 1410-11 (2012); Betancourt v. Willis, 814 F.2d 1546, 1548-49 (11th Cir.
1987). Therefore, Movant is entitled to an evidentiary hearing to resolve two
dispositive questions in this case: (1) did the Government extend a plea offer to
Movant, and (2) if so, did Mr. Dodd communicate the existence and implications
of that plea offer to Movant.
(Doc. #18 at 7).

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III.

Conclusion
For the reasons discussed above, Movant’s motion to subpoena evidence pursuant to Fed.

R. Civ. P. 45 (Doc. #21) and “Motion for Additional Consideration” (Doc. #22) are due to be denied.
A separate order will be entered.
DONE and ORDERED this

3rd

day of July, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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