Mosley v. USA

Filing 7

ORDER denying without prejudice 5 Pro Se MOTION to Compel Attorney Carole Melissa Owen to Surrender The Case File 3:11-cr-336. Signed by District Judge Max O. Cogburn, Jr on 8/29/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00399-MOC
ANTONIO MOSLEY,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on defendant’s Motion to Compel Attorney Carole
Melissa Owen to Surrender the Case In File (#5). As the court has attempted to emphasize with
petitioner in a number of recent orders responsive to his pre-Answer attempts to compel
discovery, the parties in a habeas proceeding are not entitled to discovery as a matter of course.
Bracy v. Gramley, 520 U.S. 899, 904 (1997). “Claims of ineffective assistance of counsel are
common in habeas actions, but allowing discovery before the government has even answered the
petition is not common.” United States v. Prado, 2009 WL 4018147, 1 (E.D.Cal. Nov. 18,
2009). In disposing of a nearly identical motion filed by petitioner, the district court in Prado
held, as follows:
The same reasoning applies to movant's motion for an order directing one
of his former attorneys, Victor Haltom, to surrender his case file to movant for the
purpose of movant's pursuing his motion to vacate his sentence.FN3 Movant
states that he has tried to contact Haltom with his request, to no avail. Movant's
motion also is premature and procedurally untenable: the proper mechanism for
movant to procure material from Haltom is through a subpoena duces tecum—a
mechanism movant may use only after the court authorizes discovery. If, after
receiving the government's answer, movant still believes he needs Haltom's case
file to pursue his motion to vacate his sentence, the court will entertain a motion
for discovery.

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Id. at *2. As did that court, this court will deny the motion without prejudice “[b]ecause there is
the possibility that after respondent answers there will be good cause for discovery related to the
claims of ineffective assistance of counsel or other claims ….” Id.
ORDER
IT IS, THEREFORE, ORDERED that defendant’s Motion to Compel Attorney Carole
Melissa Owen to Surrender the Case In File (#5) is DENIED without prejudice.

Signed: August 29, 2014

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