Powell v. Hines et al

Filing 51

MEMORANDUM ORDER re 43 MOTION for Discovery and Production of Documents filed by Derrick Powell is GRANTED in part and DENIED without prejudice in part. All discovery shall be completed by 11/19/21. Signed by Judge Leonard P. Stark on 9/24/21. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DERRICK POWELL,
Petitioner,
v.

Civil Action No. 13-357-LPS

CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Correction, and
KATHLEEN JENNINGS, Attorney
General of the State of Delaware
Respondents.

MEMORANDUM ORDER
At Wilmington this 24th day of September, 2021:
Pending before the Court is Petitioner's Motion for Discovery (D.I. 43), the State's
Response in Opposition (D.I. 44), and Petitioner's Reply to the State's Response (D.I. 47).
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course." Brary v. Gramlry, 520 U.S. 899, 904 (1997); Vasquez v.
Glover, 2010 WL 2569715, at *1 (D.N.J. June 24, 2010). Rather, decisions on discovery requests rest
in the sound discretion of the court. See Levi v. Holt, 192 F. App'x 158, 162 (3d Cir. 2006). Rules 6
and 7 of the Rules Governing Section 2254 Cases in the United States District Courts provide
further guidance for discovery issues in habeas proceedings. Pursuant to Rule 6(a), a court may
authorize a party to conduct discovery under the Federal Rules of Criminal or Civil Procedure only
if the court determines there is "good cause" for such discovery. See Rule 6(a), 28 U.S.C. foll. §
2254. Rule 6(6) states that a "party requesting discovery must provide reasons for the request ...
and must specify any requested documents ." Rule 6(6), 28 U.S.C. 28 U.S.C. foll. § 2254. Good

cause exists 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. See Hanis v.

Nelson, 394 U.S. 286, 300 (1969); Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011) ("The burden
rests upon the [movant] to demonstrate that the sought-after information is pertinent and that there
is good cause for its production."); Depury v. T qylor, 19 F.3d 1485, 1493 (3d Cir. 1994) (petitioner
establishes "good cause" by "point[ing] to specific evidence that might be discovered that would
support a constitutional claim"). In tum, Rule 7 states that a federal court may "direct the parties to
expand the record by submitting additional materials relating the to the petition." Rule 7(a), 28
U.S.C. foll. § 2254. Although discovery in a habeas proceeding may not be used to embark on a
fishing expedition intended to develop claims for which there is no factual basis, 1 a petitioner need
not demonstrate that additional discovery will definitively lead to relief. Rather, a petitioner "need
only show good cause that the discovery will lead to relevant evidence regarding his petition."

Williams v. Wetzel, 2021 WL 1224130, at *2 (E.D. Pa. Mar. 31, 2021).
After reviewing the Parties' submissions within the foregoing legal framework, IT IS

HEREBY ORDERED that Petitioner's Motion for Discovery is GRANTED in part and
DENIED without prejudice in part.
1. The Motion is GRANTED with respect to Petitioner's following discovery requests to
support Claim Three (Bracjy violation):2

1

Williams, 63 7 F.3d at 211.

2

The Court concludes that Petitioner has supplied sufficient reasons for his request and has
demonstrated the requisite level of "good cause" for limited discovery to support certain allegations
in Claim Three and also aid in possibly overcoming the procedural default of that Claim. See, e.g.
Williams, 2021 WL 1224130, at *4 (noting significance in "seeking discovery regarding a Bracjy claim
because . .. the discovery may be relevant not only to the merits of the claim but also to show cause
and prejudice to the extent the Commonwealth argues the claim is defaulted"). In reaching this
conclusion, the Court has thoroughly considered the State's argument that discovery is inappropriate
at this time because "review under 2254(d)(l ) is limited to the record that was before the state
court that adjudicated the claim on the merits." (D.I. 44 at 4-5)(citing Cullen v. Pinholster, 131 S. Ct.
2

a. Mayann Jefferson. "All documents, emails, texts, records and notes in the
custody or control of the State showing, reflecting and/ or discussing contact
that Mayann Jefferson had with anyone working on Petitioner's case for the
State including but not limited to police, detectives, and prosecutors," as set
forth in D.I. 43 at pp. 11-12, ~ ~ 39, 41.
b. Darshon Adkins. "[A]ll documents, records in the custody or control of
[the State] showing, reflecting or discussing contact that anyone working for
the prosecution, including but not limited to prosecutors, police and
detectives, had with Mr. Adkins between September 1, 2009 and the date when
he was sentenced by Judge Graves on April 19, 2011, less than two months
after the conclusion of Petitioner's trial," and "all documents, emails, texts,
records and notes in [the State's] custody or control regarding any interviews
prosecution agents conducted with Mr. Adkins regarding [Petitioner's] case,"
as set forth in D.I. 43 at p. 13 ~~ 47, 48.
c. Evidence of tainted identification. "[T]he photograph(s) shown to Mr.
Adkins in connection with the investigation of this case, as well as all
documents, texts, emails, records and/ or notes in [the State's] custody or
control regarding the photograph(s) they showed Mr. Adkins regarding
[Petitioner's] case, and all documents, texts, emails, records and/ or notes
regarding Adkins' identification of anyone other than [Petitioner]," as set forth
in D .I. 43 at p. 14 ~ 50.

2. The Motion is DENIED without prejudice to renew with respect to Petitioner's
following discovery requests for:3
a. Discovery related to Claim II (Judicial Bias)
(1) "All records, other than correspondence and communications
placed on the docket, in the custody or control of the Delaware
Superior Court, including but not limited to letters, emails, texts and
notes, showing, reflecting and/ or discussing communications Judge
Graves had about [Petitioner] and/ or any aspect of [Petitioner's] case,
as set forth in D.I. 43-3 at 1 ~ 1.
1388 (2010) . Despite the strength of this argument, the Court is persuaded by Petitioner's position,
including his presentation of the witness declarations from Mayann Jefferson and Darshon Adkins
obtained after the conclusion of Petitioner's Rule 61 proceeding. (See D.l. 22-13 at 42-46)
3

The Court concludes Petitioner has not adequately demonstrated that the requested discovery
would support Claim Two, Claim Three ("Thomas Bundick" and "Additional Requests"), and Claim
Four. Nevertheless, the Court does not foreclose the possibility that Petitioner may be able to show
good cause for these requests at a later date.
3

(2) "All documents, emails, texts, records and notes in the custody or
control of the Delaware Superior Court showing, reflecting and/ or
discussing any contact that Judge Graves had with anyone regarding
the judicial assignment of (Petitioner's] case within the Delaware
Superior Court of Sussex County, as set forth in D.I. 43-3 at 111.
(3) "All documents necessary to determine the general process and
procedure used for assigning homicide cases to judges within the
Delaware Superior Court that were in effect at the time Judge Graves
was assigned Mr. Powell's case, as set forth in D.I. 43-3at213.
(4) "All documents, emails, texts, records and notes in the custody or
control of the Delaware Superior Court regarding requests made by
any judge or judges for special assignment to Mr. Powell's case, as set
forth in D.I. 43-3 at 21 4.

b. Discovery related to Claim III (Bracfy violation)
(1) Thomas Bundick. "[A]ll documents, texts, emails, records and
notes in the custody or control of [the State] showing, reflecting or
discussing contact that Mr. Bundick had with anyone working on
(Petitioner's] case for the prosecution including but not limited to
police, detectives and prosecutors," as set forth in D.I. 43 at p. 15156.
(2) Additional requests. "[A]ll complaints of misconduct directed
against the officers who interviewed or spoke with Ms. Jefferson, Mr.
Adkins and Mr. Bundick about this case, including but not limited to
Det. William Porter, Det. Kelly Wells and Sgt. Robert Hudson," and
"all of the prosecution's criminal files for Ms. Jefferson, Mr. Adkins
and Mr. Bundick, including but not limited to files concerning charges
of violation of probation/ parole documentation, that contain activity
during the period of 2009 through 2011," as set forth in D.I. 43 at p.
1511 57-58.

c. Discovery related to Claim IV (IAC)
(1) "[A]ll evidence and information in the custody or control of [the
State] that supports the defense that the shot that killed Officer Spicer
was the result of an accident or supported the defense of a lesserincluded offense of negligent homicide," as set forth in D.I. 43 at p. 2
1 5 & p. 161 62.

4

IT IS FU RTHER ORDERED that all discovery shall be completed by November 19,
2021.

Hl&aIBt~ARK
UNITED STATES DISTRICT JUDGE

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