Stoutamire v. Morgan

Filing 23

Order Motion to request/exceed page limit is granted 2 ; Ex Parte motion for investigator is denied 4 ; All motions/request to amend complaint are denied [12,14,19]; Motion to have access to a typewriter is denied 13 ; Motion for a ssistance of counsel is denied 18 Motion for discovery, disposition, interrogatories & production of documents is denied 22 . Petitioner to file his traverse thirty days after Respondent files an answer showing cause by the Petition for Writ of Habeas Corpus in this case should not be granted. Magistrate Judge Vernelis K. Armstrong on 5/10/11. (B,CJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dwayne Stoutamire,

:

Petitioner,

Case No. 4:10 CV 2657

:

vs.

:

Donald Morgan, Warden,

:

Respondent.

ORDER

:

Pending in this habeas case filed pursuant to28 U. S. C. § 2254 are a Motion to Request/Exceed
Page Lim itation, an Ex Parte Motion/Reques t for Investigator, three Motions/Requests to Am end
Complaint, a Motion/Request to have access to

a t ypewriter, a Motion to Add Claim

s and a

Motion/Request for Assistance of counsel and Moti n for “ Discovery, Disposition, Interrogatories and
o
Production of Documents” (Docket Nos. 2, 4, 12, 13, 14, 18, 19 & 22).
MOTION/REQUEST TO EXCEED PAGE LIMITATION.
DOCKET NO. 2.
Petitioner does not have access to electronic m for purposes of com
edia
municating with the C
ourt.
Consequently, all of his pleadings are hand written. Petitioner contends that more space is required to
communicate in writing. Therefor e, he needs to extend the page lim itation in his written pleadings.

Pursuant to UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO LOCAL CIVIL RULES
7.1 (f), without prior approval of t he Judicial Officer for good cause shown, m emoranda relating to
dispositive motions must not exceed twenty pages for administrative cases.
The Magistrate finds that Petitioner has good cause to exceed the page lim itations imposed by
the Local Rule. However, Petitioner m ust narrow the issues, focusing only on what is m aterial to his
cause and using the space allotted econom ically. To that end, any pleadings filed hereafter m ust not
exceed twenty-five (25) pages in length. The Motion to Exceed Page Limits is granted.
EX PARTE REQUEST FOR INVESTIGATOR.
DOCKET NO. 4.
Petitioner requests that the Court engage an inves tigator to aid in his claim s of inef fective
assistance of counsel. He has identified witnesses that
may have talked to counsel and/or the police, and
he contends that an investigator can provide inf
ormation that has been a “hassle” or Petitioner to obtain.
f
An indigent defendant may request monies for investigative services under the Criminal Justice
th
Act, 18 U.S.C. § 3006A. United States v. Jamieson, 427 F.3d 394, 407 (6 Cir. 2005). The Sixth Circuit

Court of Appeals has directed the district cour ts to authorize services under Section 3006A “upon a
demonstration that (1) such services are necessary to m ount a plausible defense, and (2) without such
authorization, the defendant's case would be prejudiced.”Id. at 407-408 (citing United States v. Gilmore,
282 F.3d 398, 406 (6th Cir. 2002)).
Petitioner has failed to m the required showing of necessity for obtaining the assistance of an
ake
investigator at the government’s expense. Petitioner has identified the witnesses that “may” assist him
in his claim s. I n fact, Petitioner has already obt ained an affidavit from Jessica Gordon, one of the
witnesses Petitioner seeks assistance in locating. Petitioner has failed to connect the request with any
allegations other than a general statem that such e
ent
xpert “may” be needed to m his claims plausible.
ake
2

Moreover, it appears that Petitioner can obtain the a
assistance of an investigator. The Magistrate

ffidavits a nd/or ot her inform ation without the

is not persuaded by Petitioner’s argum

ent that an

investigator is needed. The Ex Parte Request for Investigator is Denied.
MOTIONS/REQUESTS TO AMEND COMPLAINT.
DOCKET NOS. 12, 14 & 19
In the first request, the proposed amendment to the Complaint seeks to add an additional claim
of “prejudicial grand jury selection” (Docket No. 12). In his second request, the proposed amendment
to the Complaint seeks to add a claim for prosecutorial/police misconduct (Docket No. 14). In his third
request, the proposed am
endment seeks to add anothe claim of prosecutorial/police m
r
isconduct (Docket
No. 19).
Under FED. R. CIV. P. 15, leave to amend should be freely given when justice so requires. In the
absence of any apparent or declared reason-suchas undue delay, bad faith or dilatory m
otive on the part
of the movant, repeated failure to cure deficiencies by am
endments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave
sought should, as the rules require, be freely given. Lincoln Electric Company v. MPM Technologies,
2009 WL 2413625, *3 (N. D. Ohio 2009) (citing Foman v. Davis, 83 S. Ct. 227, 230 (1962)). A court
must examine the Foman factors in light of the directive of F ED. R. CIV. P. 1 that the ru les “are to be
construed to secure the just, speedy, and in
expensive determination of every action.” Id. (citing FED. R.
CIV. P. 1; Foman, 83 S. Ct. at 230). The deci ion whether “justice so requires” the am
s
endment is at the
district court's sound discretion. Id. (see Zenith Radio Corp. v. Hazeltine Research, 91 S. Ct. 795, 802
(1971)).
Here, Petitioner has preserved the claim prosecutorial misconduct, having presented it in a post
of
conviction petition. As a practical m
atter, the Magistrate finds it futile to grant Petitioner leave to am
end
3

his Complaint to include the claims of prejudicial grand jury and police m
isconduct since he claims that
such claims were not presented to the appellate court on direct appeal, in either of two post conviction
petitions or to the Ohio Supreme Court. Such claims are likely procedurally defaulted and not subject
to habeas review. Accordingly, the Magistrate deies Petitioner’s Motion to Am Complaint, Motion
n
end
to Amend and Add Claims and Motion/Request to Amend Complaint.
REQUEST TO HAVE ACCESS TO A TYPEWRITER
DOCKET NO. 13
Petitioner contends that Respondent is interferi with his access to the court by failing to provide
ng
a typewriter while he is in a segregated cell block. Petitioner asserts that use of a typewriter to prepare
his legal paperwork is a necessity due to hand pain.
In order to state a viable claimfor interference with his access to the courts, a plaintiff m show
ust
th
“actual injury.” Talley-Bey v. Knebl, 168 F.3d 884, 886 (6 Cir. 1999) (citing Lewis v. Casey, 116 S. Ct.

2174, 2178-2190 (6 th Cir. 1992)). A plaintiff m ust plead and demonstrate that the defendant has or is
presently, hindering his or her efforts topursue a non-frivolous legal claim Hadix v. Johnson, 182 F.3d
.
400, 405 (6th Cir.1999) (explaining thatLewis changed actual injury to include a requirem that action
ent
be non-frivolous)).
When determining whether Petitioner has been deni access to the Court, the propriety of prison
ed
policy applicable to segregated cell block inhabitant or the pain in Petitioner’s hand rom overuse is not
s
f
an issue. Nor is it relevant whether Respondent was required to provide Petitioner a typewriter while
subject t o lockdown status. This case pivots on whether Plaintiff has m

ade any factual allegations

showing that he suffered an “actual injury” during hisefforts to pursue a non-frivolous suit. He fails to
advance such a claim. Despite his confinement, Petitioner continues to file pleadings. The failure to
provide a typewriter did not im
pede his presentation to the Court. The request to com Respondent to
pel
4

provide a typewriter is denied.
MOTION FOR APPOINTMENT OF COUNSEL.
DOCKET NO. 18.
Petitioner seeks an order appointing counsel while he is in lockdown status. He argues that he
is deprived of access to the library while in lockdown.
Habeas corpus is an extraordinary remedy for unusual cases and the appointment of counsel is
therefore required only if, given the difficulty of the case and petitioner's ability, the petitioner could not
obtain justice without an attorney, he or she could not obtain a lawyer on his or her own, and he or she
would have a reasonable chance of winning with the assistance of counsel. Phillips v. Houk 2010 WL
2723708, *1 (N. D. Ohio 2010)( citing Mira v. Marshall, 806 F. 2d 636, 638 (6

th

Cir. 1986) (citing

Thirkield v. Pitcher, 199 F.Supp.2d 637, 653 (E. D. Mich. 2002)). Appointment of counsel in a habeas
proceeding is mandatory only if the district court determines that an evidentiary hearing is required. Id.
(citing Lemeshko v. Wrona, 325 F. Supp.2d 778, 787 (E. D. Mich.2004)). If no evidentiary hearing is
necessary, the appointment of counsel in a habeas case remains discretionary. Id.
The Magistrate finds that Petitioner has presented his claims to the Court without the assistance
of counsel. The issues presented are not so novel or complex to warrant the appointment of counsel at
this juncture of the proceedings. The resolution is this case will depend entirely on whether the state
court's decision on those claim s that are not proce durally defaulted is contrary to, or involves an
unreasonable application of, clearly established federal law. Such decision can be m ade without an
evidentiary hearing. The Magistrate is not persua ded that the appointm ent of counsel will enhance
Petitioner’s chances of success on the merits. However, the Magistrate is persuaded that Petitioner can
obtain justice without an attorney. The request for the appointment of counsel is denied.
MOTION FOR “ DISCOVERY, DISPOSITION, INTERROGATORIES AND PRODUCTION OF DOCUMENTS”
5

DOCKET NO. 22.
Petitioner seeks relief under Rule 6 of the RLES GOVERNING SECTION 2254 CASES. Specifically
U
he seeks an order:
•
•
•
•
•
•

compelling the State to divulge the identities of the grand jurors who indicted him.
compelling his trial counsel to answer his interrogatories.
compelling trial counsel to produce his case file.
compelling the State to obtain evidence.
compelling Patrolman Bansky to produce a taped statement from Antonio Peterman.
compelling Shannon Sylvester and Jessica Gordon to submit to an interview.

Attached to his Motion are interrogatories for A
ttorney John Juhorsz, Attorney -Prosecutor Chris
Becker, Mrs. Dominique McClintock, Mr. Ronald Jones, Ms. Jessica Gordon and Mrs. Gloria Court.
The discovery processes contained in the Federal Rules of Civil Procedure do not apply across
the board in habeas corpus actions. Hillman v. Warden, Chillicothe Correctional Institution, 2009 WL
3126606, 7 (S. D. Ohio 2009). “A habeas petitioner, unlik the usual civil litigant in federal court, is not
e
entitled to discovery as a m
atter of ordinary course.” Id. (citing Bracy v. Gramley, 117 S. Ct. 1793, 17971798 (1997)). In Harris v. Nelson, 89 S. Ct. 1082, 1088 (1969), the United States Supreme Court held
that the “ broad discovery provisions” of the F

EDERAL

RULES OF CIVIL PROCEDURE did not apply in

habeas corpus proceedings. Id. As a result of the holding in Harris, the RULES GOVERNING SECTION
2254 CASES IN UNITED STATES DISTRICT COURTS were promulgated in 1976. Specifically, Rule 6(a)
provides that a party shall be entitled to invoke the processes of discovery available under the Federal
Rules of Civil Procedure if, and tothe extent that, the judge in the exercise of his discretion and for good
cause shown grants leave to do so, but not otherwise. Id.
Under the “good cause” standard, a district c ourt should grant leave to conduct discovery in
habeas corpus proceedings only when specific allegations before the court show reason to believe that
the petitioner may, if the facts are more fully developed, be able to dem
onstrate that he or she is entitled
6

to relief. Id. (citing Bracy, supra, 117 S. Ct. at 1799) ( quoting Harris, 89 S. Ct. at 1091; See also
th
Stanford v. Parker, 266 F.3d 442, 460 (6 Cir. 2001), reh’g en banc denied Nov. 29, 2001). The burden

of demonstrating the m
ateriality of the information requested is on the m
oving party. Id. (citing Stanford,
266 F.3d at 460). Rule 6 does not “sanction f ishing expeditions based on a petitioner' s conclusory
th
allegations.” Id. (citing Rector v. Johnson, 120 F.3d 551, 562 (5 Cir. 1997); see also Stanford, 266 F.3d

at 460). “Conclusory allegations are not enough to
warrant discovery under [Rule 6]; the petitioner m
ust
set forth specific allegations of fact.” Id. (citing Ward v. Whitley, 21 F.3d 1355, 1367 (5 th Cir. 1994);
Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004)).
Upon review of the entire record, the Magistrate is not persuaded that the standard necessary to
authorize Petitioner to conduct discovery to ascertain his innocence has beenet. Petitioner’s first claim
m
is actually an assertion t hat African Am ericans were underrepresented on the grand jury. Petitioner
effectively waived this claimwhen he failed to presentit to the state appellate courts. Theailure to raise
f
the issue of underrepresentation on the record constitutes a procedural default under Ohio’s doctrine of
res judicata. Smith v. Anderson, 105 F. Supp. 2d 773, 849 (S. D. Ohio 2000)citing State v. Cole, 2 Ohio
(
St. 3d 112, 113, 443 N. E. 2d 169 (1982)). Even if Petitioner’s request for discovery were granted, the
racial composition of the grand juro would not produce an altered result as the Court is foreclosed from
rs
considering whether the grand ju was underrepresented by African
ry
Americans when conducting habeas
review.
Petitioner’s second and third claim seek docum
s
ents to elucidate trial counsel’s strategy and, thus,
demonstrate that trial counsel’s representation fell below an objective standard of reasonableness.
However, Petitioner fails to challenge any particular action taken by t

he t rial counsel that was

unprofessional or allege facts that would overcome the presumption that trial counsel’s representation

7

was effective. The questions engage counsel in aninquiry to obtain information. The Magistrate is not
persuaded that Petitioner has com
plied with the “good cau standard in seeking trial counsel’s strategy
se”
or notes.
Petitioner seeks an order compelling the State to produce witness statements of persons that did
not testify at trial and Patrolm Bansky to producea taped statement from Antonio Peterman. Petitioner
an
speculates that these witnesses m ay have m ade exculpatory statements. These claim s, too, wer e not
presented for appellate review. Accordingly, for purposes of habeas review, the claims are waived. It
is futile at this juncture t o c ompel the State to produce witness statem ents as they, too, cannot be
considered in this habeas case.
In Petitioner’s f
inal claim, he subm that th Court should com Shannon Sylvester and Jessica
its
e
pel
Gordon to submit to interviews. A habeas case gauges
whether the state court decision is contrary to the
governing rule or whether the court’s use of existing law resulted in an unreasonable appl

ication of

Supreme Court precedent. Petitioner fails to explain how either of these interviews is material to the
resolution of these issues. Moreover, the transcribe d record of the interviews is inadmissible in this
habeas case; consequently, the interviews cannot have a substantial effect on this habeas court.
CONCLUSION
The Motion to Request/Exceed Page Lim

itation (Docket No. 2) is granted, the Ex Parte

Motion/Request for Investigator (Docket No. 4) is denied, all Motions/Requests to Amend Complaint
(Docket Nos. 12, 14 & 19) are denied, the Motion/Request to have access to a typewriter (Docket No.
13) is denied and the Motion/Request for Assistan ce of Counsel (Docket No. 18) is de nied and the
Motion for “Discovery, Disposition, Interrogatories and Production of Documents” (Docket No. 22) is
denied. Petitioner shall file his traverse thirty da after Respondent files its answer showing cause why
ys

8

the Petition for Writ of Habeas Corpus filed in this case should not be granted.
IT IS SO ORDERED.

/s/Vernelis K. Armstrong
United States Magistrate Judge
Date: May 10, 2011

9