Bradley v. Turner et al

Filing 25

Order. Petitioner's motions are ruled upon as follows: 9 Motion for discovery is denied without prejudice.; 11 Motion to compel is denied.; 14 Motion for request for summary judgment is denied.; 15 Motion to strike Respondent� 39;s request for extension of time is denied.; and 24 Motion to expand the record under Rule 7 is denied without prejudice. The Court, however, grants petitioner time to file his Traverse, hereby ordering it to be filed within thirty (30) days from the date of this Order. Furthermore, petitioner is relieved from sending a service copy of pleadings to the Ohio Attorney General's office that he has sent to the Court for filing in this case. Signed by Magistrate Judge Greg White on 10/11/2012. (S,S)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREGORY E. BRADLEY,
Petitioner,
v.
NEIL TURNER, et al.,
Respondents.

)
)
)
)
)
)
)
)
)

CASE NO. 3:12-CV-1504
JUDGE DAN AARON POLSTER
MAGISTRATE JUDGE GREG WHITE

ORDER

Petitioner, Gregory E. Bradley (“Bradley”), challenges the constitutionality of his
conviction in the case of State v. Bradley, Van Wert County Court of Common Pleas Case No.
CR09-03-038. Bradley, pro se, filed his Petition for a Writ of Habeas Corpus (Doc. No. 1)
pursuant to 28 U.S.C. § 2254 on May 16, 2012. Simultaneously, he filed a motion to stay the
proceedings. (Doc. No. 3.) On June 22, 2012, the case was dismissed without prejudice pending
exhaustion of state court remedies. (Doc. No. 5.) On July 5, 2012, the Court granted Bradley’s
motion to reopen. (Doc. Nos. 6 & 7.)
Currently pending before the Court are the following motions filed by Bradley:
(1)

Motion for Discovery under Fed. Crim. R. 16 requesting the State to
provide a copy of the grand jury transcripts to him. (Doc. No. 9.)

(2)

Motion to Compel North Central Correctional Complex to Forward
Indigent Pro Se Prisoners’ Legal Mail. (Doc. No. 11.) Respondent filed
an opposition brief. (Doc. No. 17.)

(3)

Motion requesting Summary Judgment by seeking to have his sentence
vacated based upon actual innocence and the failure of the State of Ohio to
respond timely. (Doc. No. 14.) Respondent opposed. (Doc. No. 18.)

(4)

Motion to strike Respondent’s request for an extension of time to file
Return of Writ.1 (Doc. No. 15.) Respondent opposed. (Doc. No. 18.)

1

On August 17, 2012, the State requested an extension until September 11, 2012 to file a
answer/return of writ, which was granted. (Doc. No. 12, and non-document order dated August
21, 2012.) Bradley filed an objection to the Court granting the extension. (Doc. No. 16.)

(5)

Motion to expand the record under Rule 7. (Doc. No. 24.)

On September 11, 2012, Warden Neil Turner (“Respondent”) filed his Answer/Return of
Writ. (Doc. No. 20.) Bradley did not file a Traverse, but filed the above motion to expand the
record in which he requested the Court to “equitabl[y] toll” the time to file his Traverse until
after the complete record is filed. (Doc. No. 24-1 at 2.) This matter is before the Court pursuant
to Local Rule 72.2. For the reasons that follow, the motions are denied in part.
A. Pending Motions
(1) Motion for Discovery (Doc. No. 9.)
Bradley requests a copy of the Grand Jury Transcripts as he believes that the grand jury
considered “secret” evidence and that police reports were “falsified” and “selectively edited.”
(Doc. No. 9 at 10.) Specifically, Bradley contends that he has shown a “particularized need” in
order to disprove two arguments made by the prosecutor in appellate briefs as follows:
(1)

State v. King, 2002, Ohio 1423, 2002 WL 579159 (Ohio App. 3 Dist.):
“Each of the Eyewitness [sic] offered slightly different versions of the
facts between their statements to the police and their trial testimony, and
from one Eyewitness to another, there was no evidence that the prosecutor
created, supported, or enhanced the Factual Inconsistencies in the witness
statements. Defendant argues that Slight Discrepancies between Police
Report, Testimony, and his self-serving statement proves witness perjured
themselves.

(2)

The Police Report had nothing to do with the Appellant’s Grand Jury
Indictment Rendered and the Medical Expert’s Testimony speeks [sic] for
itself.

(Doc. No. 9 at 1-3.) Bradley contends the first argument was made in the State’s responsive
brief to Bradley’s petition to vacate or set aside judgment filed with the Third Judicial District.
(Doc. No. 42.) It is not clear where the second argument was made as Bradley indicates it was
taken from an Exhibit A, but provided no further information.
On September 7, 2012, Respondent addressed the discovery motion indicating that the
request was premature, but that the issue would be addressed in the Answer. (Doc. No. 18 at 56.) Subsequently, Respondent indicated in the Answer that Bradley’s Petition can be decided
from the record without further discovery or hearing. (Doc. No. 20 at 38.)
Pursuant to Rule 6(a) and (b) of Rules Governing Section 2254 Cases in the United
2

States District Courts, a judge may authorize, for good cause, a party to conduct discovery, and
the court may limit the extent of discovery. As a federal court expressed:
A habeas petitioner, unlike the usual civil litigant, is not entitled to discovery as a
matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct.
1793, 138 L. Ed. 2d 97 (1997). Instead, a habeas petitioner is entitled to
discovery only if the district judge “in the exercise of his discretion and for good
cause shown grants leave” to conduct discovery. Rule 6 Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254. To establish
“good cause” for discovery, a habeas petitioner must establish that the requested
discovery will develop facts which will enable him or her to demonstrate that he
or she is entitled to habeas relief. See Bracy, 520 U.S. at 908-09. The burden is
on the petitioner to establish the materiality of the requested discovery. See
Stanford v. Parker, 266 F. 3d 442, 460 (6th Cir. 2001).
Until this Court reviews the petition for writ of habeas corpus, respondent's
answer to the habeas petition, and petitioner's reply brief, “it is impossible to
evaluate what, if any, discovery is needed and whether the discovery is relevant
and appropriately narrow.” Gengler v. United States ex rel. Dept. of Defense &
Navy, 463 F. Supp. 2d 1085, 1114-15 (E.D. Cal. 2006); See also Shaw v. White,
No. 2007 U.S. Dist. LEXIS 69972, 2007 WL 2752372, * 3 (E.D. Mich.
September 21, 2007).
Brown v. Aud, 2011 U.S. Dist LEXIS 90522, *1-2 (E. D. Mich. Aug. 15, 2011).
Moreover, an accused is not generally entitled to grand jury transcripts unless required by
the ends of justice and unless he shows a particular need for disclosure. United States v. Proctor
& Gamble, 356 U.S. 677, 682 (1958); Garret v. Moore, 2007 WL 315093, *10 (S.D. Ohio. Jan.
30, 2007); Blalock v. Wilson, 2006 WL 1866666 (N.D. Ohio June 30, 2006); United States v.
Tennyson, 88 F.R.D. 119, 121 (E.D. Tenn. 1980). Grand jury material may be disclosed when it
appears that failure to do so will deny the defendant a fair trial. Blalock, 2006 WL 1866666;
State v. Sellards, 17 Ohio St.3d 169, 173 (1985). The particularized need requirement is not
satisfied by a generalized request to inspect grand jury testimony. Tennyson, 88 F.R.D. at 121.
The Due Process Clause of the Fourteenth Amendment requires the prosecution to
disclose evidence in its possession that is both favorable to the accused and material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Pennsylvania v. Ritchie, 480
U.S. 39, 57 (1987) (plurality opinion); United States v. Bagley, 473 U.S. 667, 674 (1985). A
“defendant’s right to discover exculpatory evidence does not include the unsupervised authority
to search through the [States’s] files.” Ritchie, 480 U.S. at 59; see also Weatherford v. Bursey,
429 U.S. 545, 559 (1977). The purpose of Brady is not to displace the adversary system as the
3

primary means to uncover the truth, but rather to ensure that a miscarriage of justice does not
occur. Bagley, 473 U.S. at 675. Therefore, the prosecutor is not required to deliver his entire
file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial. Id.
Here, the Court, after reviewing the Petition and the Answer, finds that grand jury
testimony will not assist Bradley in pursuing his grounds for relief. More importantly, Bradley
has neither demonstrated good cause nor a particularized need. He asserts in a conclusory
fashion that because he is innocent, there could be no eyewitnesses, as referenced in the State’s
first argument. In its brief, the State, however, simply analogized the King case to the instant
case arguing that “[a]s in King, each witness in the instant case was subject to searching crossexamination to expose the weaknesses and discrepancies in their testimony.” (Doc. No. 22-2 at
732.)
Nonetheless, because Bradley has not filed a Traverse, and he is seeking an extension of
time to do so, the Court will deny the motion for discovery without prejudice in the event
Bradley is able to demonstrate good cause or a particularized need through his Traverse.
(2) Motion to Compel North Central Correctional Complex to Forward
Indigent, Pro Se Prisoner’s Legal Mail to the Court. (Doc. No. 11.)
Bradley claims that the prison is interfering with the mailing of legal mail thereby
denying him the right of access to the court and due process of law. (Doc. No. 11 at 1.)
Specifically, Bradley requests the Court to order Respondent to forward his legal mail for filing,
to stop interfering with his legal mail, and to stop him from being harassed. Id. Bradley also
contends that the prison refuses to send his mail because of insufficient funds in his inmate
account.2 Id. at 2. Bradley argues that by doing so, the prison is circumventing the federal mail
box rule and denying him the right of access to the Court. Id. Bradley asserts that because of his

2

In a pleading filed on September 17, 2012, Bradley explains this argument in more
detail. (Doc. No. 23.) Specifically, he contends that he is not asking for “Free Postage,” but to
allow his prison account to be credited for the amount of postage in order to mail court
documents, even if a negative balance results, and then later debited with state pay or a personal
money order. Id.
4

numerous legal filings, prison officials are retaliating against him by conducting random
shakedowns of his cubicle. Id. at 3. Lastly, Bradley contends that the prison library has limited
hours, which also is denying him the right of access to the Court. Id. at 4.
Prisoners have a constitutional right to “adequate, effective and meaningful” access to the
courts which extends to direct appeals, habeas corpus petitions and civil rights claims only.
Perotti v. Medlin, 2009 WL 2424547, *12 Case No. 4:05cv2739 (N.D. Ohio Aug. 3, 2009),
citing Bounds v. Smith, 430 U.S. 817, 821-24, 430 U.S. 817, 97 S.Ct. 1491 (1977); Thaddeus-X
v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999), citing Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct.
2174 (1996) (citations omitted). In order to sustain a claim of denial of access to the courts, a
petitioner must allege an actual injury. Perotti, citing Lewis, 518 U.S. at 351. In order to show
actual injury in this context, a prisoner must show actual prejudice to pending or contemplated
litigation, which includes a showing that a case was dismissed, a petitioner missed a
court-imposed deadline, or a prisoner was unable to file a complaint. Id.; Harbin-Bey v. Rutter,
420 F.3d 571, 578 (6th Cir. 2005). The inmate must also show that unjustified acts or conditions
hindered his ability to pursue a non-frivolous legal claim. Johnson v. Barczak, 338 F.3d 771,
772 (7th Cir. 2003), citing Lewis, 518 U.S. at 343; Christopher v. Harbury, 536 U.S. 403, 415,
122 S.Ct. 2179 (2002) (hindering a frivolous claim does not give rise to denial of access to
courts claim because it does not result in actual injury).
Bradley has not shown any actual injury. In fact, he has filed other motions with the
Court since the motion to compel. Bradley indicates that a third-party filed the motion to compel
as he believed that prison officials would not mail it. (Doc. No. 11 at 3.) Nonetheless, since
August 8, 2012, the date the motion to compel was filed, Bradley has submitted four motions
with the Court, and has not claimed to have encountered problems doing so.
More importantly, Bradley’s contentions are not cognizable in federal habeas. A
complaint that challenges the conditions of confinement, rather than the legality of the
conviction, is not cognizable in federal habeas. See Hodges v. Bell, 170 Fed. App’x 389, 392393 (6th Cir. 2006) (citing Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303 (2004). Bradley’s
complaints do not implicate the validity of his conviction, but are about the conditions of his
5

confinement. Therefore, Bradley’s motion to compel is denied.
Nevertheless, Respondent is willing to compromise on one issue to help Bradley.
Respondent believes it is not necessary for his counsel to receive a service copy of court
documents directly from Bradley as counsel is already receiving them through the electronic
filing system. The Court, therefore, orders that Bradley is relieved from sending to the Ohio
Attorney General’s Office a service copy of documents that he has mailed to this Court for filing.
(3)

Motion requesting Summary Judgment by seeking to have his
sentence vacated based upon actual innocence and the failure of the
State of Ohio to respond timely. (Doc. No. 14.)

(4)

Motion to strike Respondent’s request for an extension of time to file
Return of Writ. (Doc. No. 15.)

Bradley requests the Court to grant summary judgment on his behalf because the Warden
did not file an Answer within the Court ordered forty-five days, but instead asked for an
extension. (Doc. No. 14 at 1-2.) Bradley avers that it would be proper for the Court to grant
summary judgment because he is actually innocent. Id. Bradley also objected to the Court
allowing an extension of time to the Warden to file his Answer. (Doc. No. 16.) Additionally,
Bradley sought to strike Respondent’s motion requesting an extension. (Doc. No. 15.)
The Sixth Circuit has concluded that the failure of the state attorney general’s office “to
file a timely return does not afford a basis for instanter relief.” Allen v. Perini, 424 F.2d 134,
138 (6th Cir. 1970). District courts have also ruled that default or summary judgment, prior to
Respondent filing an Answer along with the state court record, is not allowed in federal habeas.
As another judge in this district has indicated: "There is no way a § 2254 case can
be decided on a petitioner's submission only, and a court should not put itself in a
position of considering the petition without a response by the respondent."
Mahaday v. Cason, 222 F. Supp. 2d 918, 921 (E.D. Mich. 2002) (citing to Beall v.
Cockrell, 174 F. Supp. 2d 512 (N.D. Tex. 2001)). While another judge in this
district has refused to grant an extension of time to the State of Michigan to file
an answer and has considered a habeas petition without having the benefit of an
answer from the respondent, see Wilkerson v. Jones, 211 F. Supp. 2d 856 (E.D.
Mich. 2002), the problem with this approach is that any such decision by the court
"creates a self-inflicted wound," because without a response from the State of
Michigan, "a judge is left with a one-sided view of the habeas corpus petition-that
of the prisoner, who is most likely untrained in the law and has submitted a short
petition to the court that does not include records and transcripts from the court
proceedings in which the prisoner was convicted." Mahaday, 222 F. Supp. 2d at
921. Under these circumstances, a judge is unable to "isolate the precise contours
of the dispute", because he or she would be "missing half of the story," i.e., the
6

state court proceedings, which are necessary to properly adjudicate the habeas
petition. Id. Therefore, although an expeditious review of a habeas petition is
desirable, a quick adjudication of the petition should not be done at the expense of
an incomplete review. Id. at 922
Rizk v. Prelesnik, 2010 U.S. Dist LEXIS 4128, at *9-10 (E.D. Mich. Jan. 20, 2010). See also
Hillman v. Warden, 2009 U.S. Dist. LEXIS 90022, at *5-6 (S.D. Ohio Sept. 23, 2009) (MJ
Report) (denying a petitioner’s motion for summary judgment for failure to answer his claims,
arguing that granting summary judgment on such grounds would be tantamount to a default
judgment, which is not contemplated in federal habeas cases). Bradley’s motion for summary
judgment, therefore, is denied.
Furthermore, Bradley’s “actual innocent” claim, at this point, is not supported by the
required new and reliable evidence standard. Conclusory statements are not enough – a
petitioner must “support his allegations of constitutional error with new reliable
evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence–that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995); see also Jones v. Bradshaw, 489 F.Supp.2d 786, 807 (N.D. Ohio 2007).
The Court also denies Bradley’s motion to strike Respondent’s request for an extension
of time to file the Answer. On August 17, 2012, the State requested an extension until
September 11, 2012 to file a answer/return of writ, which was granted. (Doc. No. 12, and nondocument order dated August 21, 2012.) Bradley later filed an objection to the Court granting
the extension. (Doc. No. 16.) Bradley’s objection, as well as his motion to strike, are denied.
(5)

Motion to expand the record under Rule 7. (Doc. No. 24.)

Lastly, Bradley requests the Court to rule upon the pending motions as well as allow him
extra time to file a Traverse. (Doc. No. 24.) He also appears to be requesting an evidentiary
hearing.
Rule 7 of the Rules Governing § 2254 Cases provides that the Court may direct the
parties to expand the record by submitting additional material relating to the Petition. Rule 7(a).
Furthermore, the United States Supreme Court has instructed federal habeas courts as follows:
At any time in the proceedings * * * either on [the court’s] own motion or upon
cause shown by the petitioner, it may issue such writs and take or authorize such
7

proceedings * * * before or in conjunction with the hearing of the facts * * * .
Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082 (1969) (Emphasis added). As such, the Court
has the power to order additional materials from the Respondent if upon reviewing Bradley’s
Traverse it is deemed necessary to do so. As such, Bradley’s motion to expand the record is
denied without prejudice.
Regarding the request for an evidentiary hearing, generally, a habeas petitioner is entitled
to an evidentiary hearing in federal court if the petition “alleges sufficient grounds for release,
relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing.”
Stanford v. Parker, 266 F.3d 442, 459-460 (6th Cir.2001) (citing Wilson v. Kemna, 12 F.3d 145,
146 (8th Cir.1994) (citation and internal quotation omitted)). However, a petition may be
summarily dismissed if the record clearly indicates that the petitioner's claims are either barred
from review or without merit. Id.
The Court denies, without prejudice, Bradley’s request for an evidentiary hearing.
B. Conclusion
In summary, Bradley’s motions are ruled upon as follows:
(1) Motion for discovery is denied without prejudice. (Doc. No. 9.)
(2) Motion to compel is denied. (Doc. No. 11.)
(3) Motion for request for summary judgment is denied. (Doc. No. 14.)
(4) Motion to strike Respondent’s request for extension of time is denied. (Doc.
No. 15.)
(5) Motion to expand the record under Rule 7 is denied without prejudice. (Doc.
No. 24.) The Court, however, grants Bradley time to file his Traverse, hereby
ordering it to be filed within thirty (30) days from the date of this Order.
Furthermore, Bradley is relieved from sending a service copy of pleadings to the Ohio
Attorney General’s office that he has sent to the Court for filing in this case.
IT IS SO ORDERED.
s/ Greg White
United States Magistrate Judge
Date:

October 11, 2012
8