Hill v. Wayne County

Filing 20

OPINION AND ORDER denying 18 Motion for Leave to Conduct Discovery. Signed by Peter C. Economus. (JPur)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASKIA HILL,
Petitioner,
v.
BLAINE LAFLER, WARDEN,
Respondent.

Case No. 5:08-CV-14102
Judge Peter C. Economus,
By Designation
OPINION AND ORDER

Petitioner, a prisoner convicted and sentenced in Michigan state court, has pending before
this Court 1 a habeas corpus action pursuant to 28 U.S.C. ' 2254. This matter is before the Court
upon Petitioner’s second Motion for Leave to Conduct Discovery. (E.D. Mich. Doc. # 18.)
Respondent did not file a response.
Petitioner seeks leave to conduct discovery upon what he describes as “recently
discovered” evidence regarding the alleged perjury of a witness at his 2004 trial. He asserts that
Jermaine Davenport testified at trial that he, Davenport, was no longer dealing drugs. Petitioner
claims that “new information” in the form of Davenport’s 2008 indictment and conviction 2 of
drug dealing undermines that trial testimony. (Motion, pages 2 – 3.) “The prosecutor in opening
statement and closing argument [at Petitioner’s trial] put the weight of the state behind
Davenport’s claim that he was no longer dealing drugs.” (Id., page 2.) “The question whether
Davenport was still involved in drug dealing was material to the case and went directly to
Davenport’s credibility as a witness.” (Id.) Petitioner seeks discovery of the “entire file”
relating to United States v. Jermaine Davenport, E.D. Mich. Case No. 5:08-CR-20123.

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Pursuant to Title 28, United States Code, ' 292(b), Chief Judge Alice M. Batchelder designated and
assigned Judge Peter C. Economus to hear this case. (See Designation, docs. # 16 and 17.)

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For the purpose of this Order, the Court takes judicial notice of the indictment and judgment, timestamped copies of which are attached to Petitioner’s motion.

A habeas corpus petitioner is not entitled to discovery as of right. Bracy v. Gramley, 117
S.Ct. 1793, 1796-97 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). Under the
provisions of Rule 6(a), Rules Governing Section 2254 Proceedings in the United States District
Court, a petitioner “shall be entitled to invoke the processes of discovery available under the
Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his
discretion and for good cause grants leave to do so, but not otherwise.” Discovery is warranted
only 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 [.]” Harris
v. Nelson, 394 U.S. 286, 299 (1969), quoted in Bracy v. Gramley, 117 S.Ct. at 1799; Williams v.
Bagley, 380 F.3d 932, 974 (6th Cir. 2004). When a petitioner fails to make “a fact specific
showing of good cause under Rule 6,” the court will deny the discovery requests as a mere
fishing expedition. Stanford v. Parker, above; Williams v. Bagley, above. Rule 7, Rules
Governing Section 2254 Cases, further limits discovery, allowing only the “addition of records
which are relevant to the merits of a habeas corpus petition.” Finally, if a petitioner had the
opportunity to develop the facts in the state courts but failed to do so, discovery may be barred
by the Antiterrorism and Effective Death Penalty Act of 1996.

See, 28 U.S.C. §

2254(e)(2)(A)(ii). See, Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992) (Requiring a showing of
cause for the failure to develop the facts in the state court and the resulting prejudice if the
discovery is not permitted in federal court).
In order to determine whether Petitioner is entitled to conduct discovery, the Court must
identify the essential elements of the claim that the discovery purports to support. Here, though,
Petitioner states that this newly discovered information “underscores [his] theory” that “Jermaine
Davenport committed the murder” for which Petitioner was convicted. (Motion, page 5.) This

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claim does not form the basis for relief in his habeas petition. (See Petition, Doc. #1, pages 8 –
9.) As a result, the requested discovery is not warranted.
Even if the discovery were related to Petitioner’s habeas claims, the result would be the
same. Significantly, Davenport was not indicted until four years after Petitioner’s trial for
criminal activity that took place in 2006 through 2007—one to two years after the trial.
Therefore, there is no connection between Davenport’s 2004 testimony and his 2008 indictment.
In addition, Davenport may have been telling the truth in 2004 when he testified that he was “no
longer in the street life.” There is no evidence before the Court to believe otherwise and, without
more, Petitioner’s allegation that Davenport’s testimony was untruthful is merely speculative.
Last, Davenport’s involvement in drug dealing was already before the jury. To the extent
that Petitioner seeks to add information about Davenport’s apparent return to drug dealing to
undermine Davenport’s credibility as a witness, federal habeas courts may not “redetermine
credibility of witnesses whose demeanor has been observed by the state trial court[.]” Marshall
v. Lonberger, 459 U.S. 422, 434 (1983).
Petitioner has not made an adequate showing of good cause for the requested discovery.
Accordingly, IT IS ORDERED that Petitioner’s Motion for Leave to Conduct Discovery (doc. #
18) is DENIED.

/s/ Peter C. Economus - March 9, 2012
UNITED STATES DISTRICT JUDGE

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