Darby v. Horton

Filing 23

SECOND ORDER Compelling Production of State Court Record. Signed by District Judge Matthew F. Leitman. (HMon)

Case 2:17-cv-10693-MFL-SDD ECF No. 23 filed 08/11/20

PageID.1759

Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL A. DARBY,
Petitioner,

Case No.17-cv-10693
Hon. Matthew F. Leitman

v.
JACK KOWALSKI,
Respondent,
__________________________________________________________________/
SECOND ORDER COMPELLING
PRODUCTION OF STATE COURT RECORD
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254. Magistrate Judge R. Steven Whalen signed an order of responsive pleadings
requiring Respondent to file an answer in accordance with Rule 5 of the habeas
corpus rules by September 11, 2017. The Court subsequently held the petition in
abeyance to permit petitioner to exhaust additional claims in the state courts. When
the Court reopened the case following the exhaustion of the additional claims, the
Court ordered respondent to file a supplemental answer and any Rule 5 materials
that had not yet been filed with the Court. Respondent has filed an original and
supplemental answer, as well as some of the Rule 5 materials.
In reviewing petitioner’s amended habeas petition, the Court notes that
petitioner alleges that trial counsel was ineffective for failing to investigate and
1

Case 2:17-cv-10693-MFL-SDD ECF No. 23 filed 08/11/20

PageID.1760

Page 2 of 3

introduce a photograph of petitioner from his Instagram page purportedly from
March 22, 2013 -- some three days before the robbery on March 25, 2013 -- and
another picture taken six hours after the robbery. Both of the pictures purport to
show petitioner without facial hair. Petitioner claims that this evidence could have
been used to impeach the credibility of the victim’s nieces, who told the police that
their assailant had a beard and also to establish to the jury that petitioner was not the
perpetrator because he did not fit the description of the perpetrator.
Although respondent provided copies of the photographs from petitioner’s
Instagram account, see ECF 21-2, PageID. 1564 and 1604, these copies are in black
and white and do not clearly reflect the state of petitioner’s facial hair. The Court
also notes that the state trial judge, in denying post-conviction relief, referred to
petitioner’s booking photograph from March 27, 2013, which purports to show him
with a beard. A copy of this booking photograph has not been provided as part of
the Rule 5 materials. Clear copies of the Instagram and booking photographs, in
color if possible, are necessary to resolve petitioner’s ineffective assistance of
counsel claim.
The habeas corpus rules require respondents to attach the relevant portions of
the transcripts of the state court proceedings, if available, and the court may also
order, on its own motion, or upon the petitioner’s request, that further portions of the
transcripts or additional evidence be furnished. Griffin v. Rogers, 308 F. 3d 647, 653
2

Case 2:17-cv-10693-MFL-SDD ECF No. 23 filed 08/11/20

PageID.1761

Page 3 of 3

(6th Cir. 2002); Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254.
“When this information is required, it is the State’s responsibility to provide it.”
Griffin, 308 F. 3d at 654.
Based upon the foregoing, the Court ORDERS Respondent to produce clear
color copies of petitioner’s Instagram photographs from March 22, 2013 and March
25, 2013 and the booking photograph from petitioner’s March 27, 2013 arrest within
twenty one (21) days of the date of this order or show cause why they are unable to
comply with the order.
/s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 11, 2020
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 11, 2020, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

3