Price v. Birkett

Filing 11

Order Denying without Prejudice Petitioner's 3 Motion for Discovery and to Expand the Record. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TYRONE TITUS PRICE,
Case No. 2:12-CV-13399
Petitioner,
HON. AVERN COHN
v.
TOM BIRKETT,
Respondent.
______________________________/

ORDER DENYING WITHOUT PREJUDICE PETITIONER’S MOTION
FOR DISCOVERY AND TO EXPAND THE RECORD (Doc. 3)
I.
This is a habeas case under 28 U.S.C. § 2254. Before the Court is petitioner
Tyrone Titus Price’s motion for discovery and to expand the record. For the reasons
stated below, the motion is denied without prejudice.
II.
“A habeas petitioner, unlike the usual civil litigant, is not entitled to discovery as
a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, a
habeas petitioner is entitled to discovery only if the district judge “in the exercise of his
discretion and for good cause shown grants leave” to conduct discovery. Rule 6
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. §
2254. To establish “good cause” for discovery, a habeas petitioner must establish that
the requested discovery will develop facts which will enable him or her to demonstrate
that he or she is entitled to habeas relief. See Bracy, 520 U.S. at 908-09. A further

limitation on discovery is the recent case of Cullen v. Pinholster, 131 S. Ct. 1388,
1398–1401 (2011), in which the Supreme Court held that under the clear language of
the 28 U.S.C. § 2254(d), a district court is precluded from considering new evidence
when reviewing a petition under § 2254(d) where the petitioner's claims were
adjudicated on the merits in state court proceedings. The burden is on the petitioner to
establish the materiality of the requested discovery. See Stanford v. Parker, 266 F. 3d
442, 460 (6th Cir. 2001).
III.
Petitioner filed his habeas petition on August 2, 2012. On August 6, 2012, a
magistrate judge entered and order requiring respondent to file an answer to the petition
for writ of habeas corpus and the Rule 5 materials by February 7, 2013. Respondent
has not yet filed an answer to the petition for writ of habeas corpus. Until a respondent
files an answer to the habeas petition, “it is impossible to evaluate what, if any,
discovery is needed and whether the discovery is relevant and appropriately narrow.”
Gengler v. United States ex rel. Dept. of Defense & Navy, 463 F. Supp. 2d 1085,
1114-15 (E.D. Cal. 2006); See also Shaw v. White, No. 2007 WL 2752372, * 3 (E.D.
Mich. September 21, 2007). In addition, none of the Rule 5 materials have been
received by the Court; “and receipt of those materials may obviate the need to order
discovery.” Shaw, No. 2007 WL 2752372, at * 3. Granting petitioner’s discovery request
at this time would be premature. Therefore, the motion for discovery will be denied
without prejudice. Id.

IV.
2

For the reasons stated above, Petitioner’s motion for discovery and to expand
the record is DENIED WITHOUT PREJUDICE. The Court will reconsider Petitioner's
request, following receipt of the responsive pleading and Rule 5 materials, and
determine whether additional discovery is necessary. Petitioner need not file another
motion regarding this matter.

SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: February 5, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, February 5, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

3