Streets v. Stephenson

Filing 13

OPINION AND ORDER denying 11 Motion to Amend/Correct; denying 12 Motion for Discovery. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONY D. STREETS,
Petitioner,

Case No. 2:16-cv-12889

v.

HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

GEORGE STEPHENSON,
Respondent.
___________________________________/
OPINION AND ORDER
(1) DENYING PETITIONER’S MOTION TO CORRECT STATE
COURT RECORD [11]; AND
(2) DENYING PETITIONER’S MOTION FOR DISCOVERY [12]
Petitioner Tony D. Streets, a state prisoner currently incarcerated at the Thumb
Correctional Facility in Lapeer, Michigan, filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254, challenging his convictions for two counts of first-degree
criminal sexual conduct involving a person under thirteen. Respondent, through the
Attorney General’s Office, filed a response in opposition, and Petitioner filed a reply. On
the same day Petitioner filed his reply, he filed the instant motions, seeking a correction
of the state court record and limited discovery. For the reasons that follow, Petitioner’s
motions are DENIED.
I.

Motion to Correct the State Court Record [11]
Pursuant to 28 U.S.C. §2254, “a determination of a factual issue made by a State

court shall be presumed to be correct,” unless the petitioner rebuts the presumption of

correctness by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Here,
Petitioner asks the Court to correct the Michigan Court of Appeals’ summary of facts,
asserting that the court misstated the events leading to his conviction. He cites to
testimony from the trial court transcripts to support his argument, and contends that this
is sufficient evidence to rebut the presumption that the factual determinations made by
the Court of Appeals were correct.
Petitioner’s argument is nearly identical to his reply brief. (See ECF No. 10 at 12.) The Court will address this argument when ruling on his pending petition for writ of
habeas corpus. If it is compelling, the Court is entitled to take several actions, including
holding an evidentiary hearing. Rule 8, 28 U.S.C. foll. § 2254. However, at this point in
the proceedings, Petitioner’s duplicative motion is DENIED without prejudice as
premature.
II.

Motion for Limited Discovery [12]
Petitioner asserts that he is entitled to limited discovery to obtain documents

proving his actual innocence, specifically GPS tracking data from his ankle monitor
during the relevant period. He contends that the GPS data will prove that he was not at
the locations on the dates on which the charged acts occurred. The trial court addressed
this issue in ruling on Petitioner’s motion for relief from judgment, stating in pertinent
part:
Turning first to trial counsel’s alleged failure to conduct a thorough
investigation to develop alibis, the Information filed September 2, 2011
stated only that the charged acts occurred sometime between December 29,
2010 and May 4, 2011. The victim’s trial testimony established that

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multiple incidents occurred at “Donna’s house” and one took place in the
Duthler Foods parking lot, but did not identify either the specific dates or
time of day on which the claimed sexual assaults occurred. [Trial Tr, Vol
II, pp 24-32]. “Time is not of the essence, nor is it a material element, in
criminal sexual conduct cases involving a child victim.” People v Dobek,
274 Mich App 58, 83; 732 NW2d 546 (2007). The jury was correctly
instructed that the elements of first degree criminal sexual conduct at issue
required a determination that the defendant engaged in a sexual act that
involved penetration with the victim between December 29, 2010 and May
4, 2011 and that the victim was under 13 years of age when the act occurred.
None of the possible alibis suggested by defendant would have covered the
entire identified period; accordingly, attempting to develop an alibi would
have been pointless.
(ECF No. 9-20 at 3.)
“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). Rule 6 of the Rules Governing Section 2254 Cases provides that a district court
may authorize a party to conduct discovery upon a showing of good cause. 28 U.S.C.
foll. § 2254, Rule 6(a). Rule 7 of the Rules Governing Section 2254 Cases permits a
court to allow the parties to expand the record by “submitting additional materials
relating to the petition.” The decision whether to allow expansion of the record under
Rule 7 is left to the discretion of the district court. Landrum v. Mitchell, 625 F.3d 905,
923 (6th Cir. 2010). But when a petitioner seeks habeas relief on a claim that has been
“adjudicated on the merits in state court proceedings,” 28 U.S.C. § 2254(d)(1), federal
court review “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). Petitioner’s claims
were adjudicated on the merits in state court. The Court’s review is, therefore, limited to

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the record before it. Moreover, Petitioner has not established good cause for the
discovery, as the GPS data would not prove his actual innocence for the entire period
between December 29, 2010 and May 4, 2011. The requested discovery would be, in the
words of the trial court, pointless. The motion is therefore DENIED.
SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: January 29, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on January
29, 2018.
s/D. Tofil
Deborah Tofil, Case Manager

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