Wilborn v. Ryan
Filing
46
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: MOTION FOR AUTOPSY REPORT (DOCKET ENTRY # 37 ); MOTION FOR PICTURES (DOCKET ENTRY # 39 ); MOTION TO ENFORCE COURT ORDER (DOCKET ENTRY # 38 ); MOTION FOR COURT ORDER TO PRODUCE BANK VIDEO AND PHOTOGRAPHIC MATERIAL (DOCKET ENTRY # 23 ). The motion for the autopsy report (Docket Entry # 37 ), the motion for pictures of the crime scene (Docket Entry # 39 ) and the motion for a court order (Docket Entry # 23 ) are DENIED. The motion to enforce (Docket Entry # 38 ) is DENIED without prejudice. Respondent is instructed to inform this court on or before April 6, 2016 whether the November 1976 transcripts still exist at the Lynn Division of the Massachusetts D istrict Court Department. Petitioner may renew the motion after April 6, 2016 in the event the transcripts exist at that court. On or before April 6, 2016, respondent is also directed to file the following documents if they still exist at the applicable court: (1) petitioners March 1994 fourth motion for a new trial and/or any supporting memorandum; and (2) a complete copy of the docket for SJC-09547. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN WILBORN,
Petitioner,
v.
CIVIL ACTION NO.
15-12827-RGS
KELLY RYAN,
Respondent.
MEMORANDUM AND ORDER RE:
MOTION FOR AUTOPSY REPORT (DOCKET ENTRY # 37);
MOTION FOR PICTURES (DOCKET ENTRY # 39); MOTION
TO ENFORCE COURT ORDER (DOCKET ENTRY # 38);
MOTION FOR COURT ORDER TO PRODUCE BANK
VIDEO AND PHOTOGRAPHIC MATERIAL
(DOCKET ENTRY # 23)
March 23, 2016
BOWLER, U.S.M.J.
Petitioner John Wilborn (“petitioner”), convicted of first
degree murder, kidnapping and rape, requests that respondent
Kelly Ryan (“respondent”) produce a copy of an autopsy report
(Docket Entry # 37) and “pictures of the crime scene” (Docket
Entry # 39).
Respondent did not include a copy of the autopsy
report or the photographs in a two-volume addendum containing
relevant documents from state court proceedings.
## 34, 35).
(Docket Entry
Petitioner additionally seeks to enforce a December
29, 2015 Order (Docket Entry # 20) requiring respondent to
produce transcripts of a probable cause hearing.
38).
Petitioner also requests a court order requiring respondent
to produce a bank video and bank photographs.
23).
(Docket Entry #
(Docket Entry #
I.
Autopsy Report
Petitioner initially sought the autopsy report in an August
2009 pro se motion filed in Massachusetts Superior Court (Essex
County) (“the trial court”).
(Docket Entry # 34, Add. 11).
The
trial court denied the motion as well as a second and third
motion to obtain the report.
(Docket Entry # 34, Add. 12-14,
Nos. 142, 150 and 6/25/14 Entry).
In November 2015, the court ordered respondent to file an
answer “or other proper responsive pleading” under Rule 4 of the
Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (“the
Rules”).
(Docket Entry # 11).
Respondent complied by filing a
motion to dismiss seeking dismissal on the basis of a procedural
default and untimeliness.
(Docket Entry # 28).
Petitioner
argues that he needs the autopsy report to establish his actual
innocence, which respondent argues is lacking as a means to avoid
the procedural default (Docket Entry # 29).
(Docket Entry # 37).
Petitioner additionally maintains that the report will establish
the ineffectiveness of his trial and appellate court counsel
thereby, presumably, establishing cause for the procedural
default asserted by respondent.1
(Docket Entry # 27, pp. 4-5).
1
In order to establish cause to avoid a procedural
default, a petitioner must “show that some objective factor
external to the defense impeded counsel’s efforts to comply with
the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). “One factor accepted as cause is ineffective
assistance of counsel at a level which violates the Sixth
Amendment.” Gunter v. Maloney, 291 F.3d 74, 81 (1st Cir. 2002).
2
DISCUSSION
Rule 5 of the Rules (“Rule 5”) requires respondent to file
certain state court transcripts, briefs and opinions in
conjunction with filing an answer to the petition.
(d), 28 U.S.C. foll. § 2254.
Rule 5(c),
The rule does not expressly
encompass production of state court exhibits.
More importantly,
Rule 5 does not apply because, in accordance with the November
2015 Order (Docket Entry # 11), respondent filed a responsive
pleading under Rule 4 of the Rules (“Rule 4”) in lieu of an
answer under Rule 5.
See Advisory Committee Notes, Rule 5, 2004
Amendments (Rule 4 permits practice “where respondent files a
pre-answer motion to dismiss”).
Rule 4, in turn, allows
respondent to file a motion to dismiss and does not expressly
mandate production of exhibits filed in state court such as an
autopsy report.
See Advisory Committee Notes, Rule 4, 1976
Adoption (explaining that Rule 4 allows habeas judge “to
authorize respondent to make a motion to dismiss based o
information furnished by respondent”).
Rule 6 of the Rules (“Rule 6”) provides that, “A judge may,
for good cause, authorize a party to conduct discovery under the
Federal Rules of Civil Procedure and may limit the extent of
discovery.”
Rule 6, 28 U.S.C. foll. § 2254 (emphasis added).
In order to show “‘good cause,’” a petitioner “must present
‘specific allegations that give a court reason to believe that
3
the petitioner may, if the facts are fully developed, be able to
demonstrate that he is entitled to relief.’”
Donald v. Spencer,
656 F.3d 14, 16 (1st Cir. 2011) (ellipses omitted).
Although the
autopsy report is presumably included in the state court record
that respondent has not produced, Rule 6 “discovery” nonetheless
provides petitioner a means to obtain the report.
See, e.g.,
Harris v. Wenerowicz, 2012 WL 6965233, at *4 n.4 (E.D.Pa. May 22,
2012) (considering request for “numerous pleadings from the state
court record” as governed by Rule 6), report and recommendation
adopted, 2013 WL 373165 (E.D.Pa. Jan. 31, 2013); Kingery v.
Dretke, 2006 WL 1441925, at *23 (S.D.Tex. May 23, 2006) (same).
Here, petitioner fails to show good cause because, except
for generalized allegations of destruction of evidence, he does
not explain in the motion (Docket Entry # 37) or in the further
response (Docket Entry # 42) how the autopsy report would entitle
him to habeas relief and avoid dismissal by establishing actual
innocence or ineffective assistance of counsel under the Sixth
Amendment.
See Donald v. Spencer, 656 F.3d at 16; see also Teti
v. Bender, 507 F.3d 50, 60 (1st Cir. 2007) (“habeas proceeding is
not a fishing expedition”).
The First Circuit in Teti denied a
discovery request under Rule 6 because it was “generalized and
[did] not indicate exactly what information he seeks to obtain.”
Id.
Here, although petitioner identifies what he seeks to obtain
(the autopsy report), he does not articulate the reasons why it
4
would show ineffective assistance or actual innocence even though
petitioner had the report as late as December 1994 and therefore
knew its contents.2
See Donald v. Spencer, 656 F.3d at 18
(denying Rule 6 motion and explaining that petitioner “cites no
facts upon which to base a conclusion that new DNA evidence will
exonerate him”).
Furthermore, the December 1994 Memorandum and Order rejected
various ineffective assistance of counsel claims.
(Docket Entry
# 19-3, pp. 20, 25-29, 33, Civil Action No. 11-11797-DJC).3
Independently reviewing the state court record and for reasons
stated in the Memorandum and Order relative to ineffective
assistance, the autopsy report does not merit production under
Rule 6 even if petitioner’s allegations were specific.
Separately, this court declines to expand the record to
include the report under Rule 7 of the Rules (“Rule 7”).4
This
2
A December 1994 Memorandum and Order by the trial court
denying petitioner’s fourth motion for a new trial quotes
portions of the autopsy report from petitioner’s brief. (Docket
Entry # 19-3, Civil Action No. 11-11797-DJC). This court takes
judicial notice of the Memorandum and Order, which was filed in a
related civil rights action in this district, Wilborn v. Attorney
General Martha Coakley, et al., Civil Action No. 11-11797-DJC.
3
Page numbers refer to the docketed page numbers.
4
Rule 7 provides that, “If the petition is not dismissed,
the judge may direct the parties to expand the record by
submitting additional materials relating to the petition.” Rule
7, 28 U.S.C. foll. § 2254. Here, the court did not dismiss the
petition upon its initial review under Rule 4 and, instead,
ordered respondent to file an answer or other responsive
pleading. See also Rule 4, 28 U.S.C. foll. § 2254 (broadly
5
court will, however, expand the record to include the following
documents if they still exist at the applicable court:
(1) the
March 1994 fourth motion for a new trial5 and/or any supporting
memorandum filed by petitioner; and (2) a complete copy of the
Massachusetts Supreme Judicial Court (“SJC”) docket for SJC09547.6
II.
Photographs
Petitioner next requests production of photographs of the
crime scene, including pictures of decedent’s body across the
threshold of a doorway.
(Docket Entry ## 39, 42).
In opposing
the motion to dismiss, petitioner elucidates that, “[N]one of the
pictures shows the body on its back while its on the threshold”
as opposed to its right side.
(apostrophes omitted).
(Docket Entry # 36, p. 4)
The pictures therefore contradict witness
testimony that the body was on its back in a back bedroom,
according to petitioner.
(Docket Entry # 36, p. 4).
Construing the motion as a request for discovery under Rule
stating that the judge can “take other action” thus encompassing
ability to order production of additional state court records).
5
The filing date is taken from a state court filing by the
Commonwealth summarizing the procedural history of petitioner’s
motions for a new trial because the trial court’s docket does not
refer to the fourth new trial motion. (Docket Entry # 34, Add.
51-54).
6
The dockets in the record (Docket Entry # 35, Add. 1, 1415) do not include the more recent docket entries (Docket Entry #
35, Add. 40).
6
6, this court has the “discretion to grant” such “discovery for
‘good cause.’”
Teti v. Bender, 507 F.3d at 60.
Petitioner fails
to show good cause because he does not provide specific
allegations regarding the reasons why production would entitle
him to habeas relief on the basis of actual innocence to refute
the procedural default asserted by respondent (Docket Entry # 29)
or on the basis of ineffective assistance of counsel to establish
cause for the asserted procedural default.
See Donald v.
Spencer, 656 F.3d at 16 (to show “‘good cause’” Donald “must
present ‘specific allegations’” demonstrating entitlement to
habeas relief).
In any event, as to the latter, trial counsel
made a strategic decision to focus on a defense that decedent’s
wife murdered her husband as opposed to the discrepancy, if any,
in testimony regarding the position of the body.
Separately,
this court declines to expand the record to include the
photographs under Rule 7 of the Rules.
III.
Production of Transcripts
In February 2016, petitioner filed the motion to enforce the
December 2015 Order that required respondent to produce
transcripts of a November 26, 1976 probable cause hearing “from
Lynn District Court” (Docket Entry # 20).
(Docket Entry # 38).
The transcripts consist of five volumes, according to
petitioner’s trial counsel.
(Docket Entry 19-1).
Because the hearing took place 40 years ago, it is not
7
apparent that the transcripts still exist at the court.
Respondent is therefore directed to inform this court on or
before April 6, 2016 whether the November 1976 transcripts still
exist at the court.
The Order required production “from [the]
Lynn District Court” and, accordingly, production is not required
if the Lynn Division of the Massachusetts District Court
Department does not have the transcripts.
It is also worth noting that the Order allowed a motion in
which petitioner sought production under Rule 5(c).
Rule 5(c)
addresses the contents of an answer and the inclusion of
transcripts respondent considers relevant.
foll. § 2254.
See Rule 5, 28 U.S.C.
As noted above, respondent properly filed a motion
to dismiss under Rule 4 as opposed to an answer under Rule 5.
Petitioner also filed a number of motions in the trial court and
the SJC seeking production of the transcripts of the probable
cause hearing, all without success.
IV.
Bank Video and Photographs
As a final matter, petitioner requests a court order
requiring respondent to produce the bank video and the bank
photographs.
(Docket Entry # 23).
The state court records in
the two-volume addendum do not contain either the video or the
photographs.
Placing the material in context, the facts show that on
October 4, 1976, decedent’s wife “was awakened by a loud noise
8
and gasping sounds.
She ran across the hall, where she found her
husband lying in the doorway of the back bedroom, and the
defendant bending over him, pulling a large knife from her
husband’s body.”
(Mass. 1981).
Commonwealth v. Wilborne, 415 N.E.2d 192, 195
Petitioner then took decedent’s “wife to her
bedroom and proceeded to assault her sexually throughout the
remainder of the night.
The next morning the defendant forced
her to pack some things, load her car, and take him to a bank to
get money deposited there by [decedent] and his wife.”
Id.
As a request for discovery, petitioner fails to show good
cause.
See Donald v. Spencer, 656 F.3d at 16 (defining“good
cause”); Teti v. Bender, 507 F.3d at 60.
A state court’s
findings of fact are presumed correct, 28 U.S.C. § 2254(e)(1),
and those facts establish that petitioner went to the bank with
decedent’s wife to withdraw the money and then fled the scene
when she told a woman that, “‘This man murdered my husband.’”
Commonwealth v. Wilborn, 415 N.E.2d at 195.
Petitioner’s
assertion that the bank video and the bank photographs would show
petitioner was “not in the video” or not at the bank thereby
establishing actual innocence does not provide a sufficient
reason to believe that the 40-year old video and photographs
still exist and, in light of the wife’s testimony and the SJC’s
factual findings, a sufficient reason to believe that petitioner
can demonstrate entitlement to habeas relief.
9
See Arthur v.
Allen, 459 F.3d 1310, 1311 (11th Cir. 2006) (“good cause for
[habeas] discovery cannot arise from mere speculation”).
At
present, petitioner’s entitlement to habeas relief turns on his
ability to refute the procedural default and untimeliness
asserted by respondent in the pending motion to dismiss.
In
addition, any such video or photographs would only be relevant to
an actual innocence showing regarding the rape and kidnaping
convictions as opposed to the murder conviction inasmuch as the
murder took place well before petitioner went to the bank with
the decedent’s wife.7
CONCLUSION
In accordance with the foregoing discussion, the motion for
the autopsy report (Docket Entry # 37), the motion for pictures
of the crime scene (Docket Entry # 39) and the motion for a court
order (Docket Entry # 23) are DENIED.
The motion to enforce
(Docket Entry # 38) is DENIED without prejudice.
Respondent is
instructed to inform this court on or before April 6, 2016
whether the November 1976 transcripts still exist at the Lynn
Division of the Massachusetts District Court Department.
Petitioner may renew the motion after April 6, 2016 in the event
the transcripts exist at that court.
7
On or before April 6, 2016,
At best, the video might show that decedent’s wife did
not talk to the woman thus impeaching the wife’s statement that,
“‘This man murdered my husband.’” Commonwealth v. Wilborn, 415
N.E.2d at 195. In light of the facts found by the SJC, such a
showing does not demonstrate an entitlement to habeas relief.
10
respondent is also directed to file the following documents if
they still exist at the applicable court:
(1) petitioner’s March
1994 fourth motion for a new trial and/or any supporting
memorandum; and (2) a complete copy of the docket for SJC09547.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
11
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