Rogers #156853 v. Bell

Filing 38

ORDER denying 34 petitioner's motion for discovery; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

MORRIS ROGERS,

) ) P e ti t i o n e r , ) ) v. ) ) T H O M A S K. BELL, ) ) R esp o n d en t. ) _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _ )

C a se No. 1:07-cv-783 H on orab le Robert J. Jonker

O R D E R DENYING MOTION FOR DISCOVERY T h is is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted in the Muskegon County Circuit Court, following a jury trial, of a ss au lt with intent to commit murder, possession of a firearm by a felon, and possession of a firearm d u rin g the commission of a felony. Petitioner's jury trial was conducted between June 24 and June 27 , 2003, as reflected in four volumes of trial transcript, now part of the record in this court as d o c u m e n ts numbered 13 through 16. The official transcript was made from a recording of the court pro ceedings, as allowed by Michigan court rule. MICH. CT. R. 8.109. P r es en tly pending before the court is petitioner's motion for discovery. (docket # 34). It is well established that a habeas petitioner "is not entitled to discovery as a matter of ordinary cou rse." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Discovery is only allowed if the court, in its discretion , finds "good cause" to allow it. RULES GOVERNING § 2254 CASES IN THE UNITED STATES D ISTRICT COURTS 6(a); see Beuke v. Houk, 537 F.3d 618, 654-55 (6th Cir. 2008). "Fishing

ex ped ition s" by habeas petitioners do not satisfy this requirement. See Beuke, 537 F.3d at 654-55; Stan ford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). In his motion, petitioner seeks production of videotape number 53, which he alleges co n tain s portions of the trial that do not appear in the official transcript. This assertion is belied by the reco rd . Volume IV of the trial transcript (docket # 16) begins with tape 52 at 10:22 a.m. (p. 595). The tap e was changed at 4:57 p.m. (p. 681). Proceedings commenced one minute later, as recorded on tape 5 3 . Those proceedings lasted less than one minute. Court adjourned at 4:58 p.m. (pp. 681-82). P etition er is therefore incorrect when he says that no certified transcript of the proceedings recorded on tape 53 exists. P e titio n e r 's motion and attached affidavit make other inaccurate statements in support o f the motion. For example, petitioner asserts that the jury was not polled. The transcript clearly sho w s that the jury was indeed polled. (TT IV 676-78). Petitioner also asserts that the jury verdict w as not unanimous. The poll of the jury shows a unanimous verdict. (Id.). Petitioner asserts that th ere is no record that the jury found him guilty on count 4. This statement is true, but irrelevant. The ju r y found petitioner guilty of the principal count of assault with intent to commit murder (count 1). C o u n t 4 was the lesser included offense of assault with intent to do great bodily harm less than murder. C o n seq u en tly, the trial court dismissed the lesser included offense contained in count 4 at the time of sen ten cin g, on motion of the prosecutor. (Sentencing Transcript, docket # 17, at 8-9). In summary, it is fair to say that every factual assertion made by petitioner in support of his motion is contradicted b y the record. M o re basically, the discovery sought by petitioner is irrelevant to the claims set forth in his petition. The petition contains seven claims, none of which relates to the unanimity of the

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v erd ict, the alleged lack of a jury poll, or any of the other issues identified in petitioner's motion for d is c o v e r y. P etition er 's motion for discovery is factually unsupported and seeks to delve into m atters irrelevant to this habeas corpus proceeding. Petitioner has therefore failed to show good cause fo r discovery. Accordingly:

IT IS ORDERED that petitioner's motion for discovery of video record of trial
p ro ceed in gs (docket # 34) be and hereby is DENIED.

DONE AND ORDERED this 2nd day of October, 2008.

/s/ Joseph G. Scoville United States Magistrate Judge

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