Kyle v. Gansheimer

Filing 10

Memorandum Opinion and Order denying Petitioner's Motion for Discovery and Inspection (Related Doc # 5 ). Magistrate Judge Kathleen B. Burke on 9/29/2011.(B,IE)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHERMAN KYLE III
Petitioner,
v.
RICHARD GANSHEIMER, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

CASE NO. 5:11CV1395
JUDGE GAUGHAN
MAGISTRATE JUDGE BURKE

MEMORANDUM OPINION AND
ORDER
Doc. No. 5

Before the Court is a Motion (the “Motion”) filed by Petitioner Sherman Kyle III
(“Petitioner”) captioned “Motion for Discovery and Inspection.” Doc. 5. In this Motion,
Petitioner seeks to conduct discovery pursuant to Rule 26(A) of the Federal Rules of Civil
Procedure. Doc. 5, p. 1. Petitioner also requests that the Court order the State of Ohio to provide
him with a complete copy of the trial record, including copies of all trial transcripts and all trial
exhibits. Doc. 5, pp. 1-2. Petitioner further moves the Court to compel the State of Ohio to
return property that was seized from him. Doc. 5, p. 2. Respondent has not opposed the Motion.
For the following reasons, Petitioner’s Motion is DENIED.
I.

Discovery
Petitioner seeks the following discovery: (1) disclosure of any relevant written or

recorded statements or confessions made by the witnesses for the State of Ohio; and (2) copies of
victim testimony before the Summit County Grand Jury. Doc. 5, p. 1. Petitioner argues that he
is entitled to this discovery under Rule 26 of the Federal Rules of Civil Procedure.
A habeas petitioner, unlike the usual civil litigant in federal court, 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). Rule 6 of the Rules Governing § 2254 Cases (“Rule 6”) provides that
1

“[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules
of Civil Procedure and may limit the extent of discovery.” 28 U.S.C. § 2254 Rule 6.
The United States Supreme Court held for the first time in the recent decision Cullen v.
Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), that federal habeas “review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Id. at 1398. The Court reasoned that the “backward-looking language” of
Section 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
and that therefore the record under review must be “limited to the record in existence at that
same time i.e., the record before the state court.” Pinholster, 131 S. Ct. at 1398. Thus,
“evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Id. at 1400.
Likewise, based on the plain language in the statute itself, review under § 2254(d)(2) is limited to
evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2); Pinholster, 131 S. Ct.
at 1400 n.7.
Lower courts have taken Pinholster into account when ruling on discovery requests. See,
e.g., Coddington v. Cullen, No. CIV S-01-1290, 2011 U.S. Dist. LEXIS 57442, 2011 WL
2118855, *1 (E.D. Cal. May 27, 2011). As explained by the Middle District of North Carolina:
[A]ny new evidence unearthed during discovery in federal court and ‘later
introduced in federal court is irrelevant to § 2254(d)(1) [and (2)] review.’ In other
words, if the state trial court adjudicated . . . Petitioner's [claim] on the merits,
such that Petitioner must satisfy the terms of § 2254(d), “good cause” does not
exist for the discovery Petitioner seeks . . . because this Court may look only to
the state court record in applying § 2254(d).
Hurst v. Branker, No. 1:10 CV 725, 2011 U.S. Dist. LEXIS 58910, 2011 WL 2149470, at *8
(M.D.N.C. June 1, 2011) (quoting Pinholster, 131 S. Ct. at 1400)).

2

This Court recently addressed the impact of Pinholster on discovery and determined that
review of claims under § 2254 is “limited to the state-court record, and other evidence has no
bearing on the Court’s review.” Williams v. Mitchell, 1:09 CV 2246, 2011 U.S. Dist. LEXIS
108493, 2011 WL 4457788, *2 (N.D. Ohio Sept. 23, 2011). Thus, this Court concluded that
“allowing further factual development would be futile since the Court could not consider the
information obtained in further discovery or an evidentiary hearing in resolving [the petitioner’s]
Atkins claim.” Id.; see also Carter v. Bigelow, No. 2:02-CV-326, 2011 U.S. Dist. LEXIS 71551,
2011 WL 2551325, at *1 (D. Utah June 27, 2011) (“[U]nder Pinholster, further factual
development is futile.”).
In this case, Petitioner has asserted five grounds for relief in his habeas petition, under
both § 2254(d)(1) and § 2254(d)(2) (due process violation (firearm specification), due process
violation (conflict of interest), ineffective assistance of trial counsel, ineffective assistance of
appellate counsel, verdict against manifest weight of evidence). In his § 2254 petition, Petitioner
asserts that he raised all five grounds for relief on direct appeal in state court and that all were
adjudicated on the merits. Under the clear language of Pinholster, this Court’s review of these
claims is limited to the state-court record, and other evidence “has no bearing” on this Court’s
review. Pinholster, 131 S. Ct. at 1398. Allowing further factual development in this case would
be futile because the Court could not consider any of the newly discovered evidence on review.
Williams, 2011 WL 4457788, at *2. Accordingly, Petitioner’s request for discovery fails.
II.

Trial Transcript
In the Motion, Petitioner also requests the following information: (1) copies of the trial

transcripts, including the testimony of each witness for the state and expert witnesses; and (2)
copies of all documents and evidence admitted at trial, including copies of all “police testimony,
3

arrest reports, Gun Shot Residue Report(s), Dove Report, and medical reports entered into
evidence . . . .” (collectively referred to as the “Transcript”). Doc. 5, p. 1. Petitioner contends
that he is entitled to these documents under Rule 26.
It is well established that a state court must provide an indigent defendant a copy of his
trial transcripts and court records so that the defendant may prosecute his direct appeal. Griffin v.
Illinois, 351 U.S. 12, 76 S.Ct. 585, 590-591, 100 L.Ed. 891 (1956). The Constitution does not
require that an indigent defendant be provided a free transcript for use in attacking his conviction
collaterally if a transcript was available on direct appeal. See United States v. MacCollom, 426
U.S. 317, 325–326, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976). In other words, an indigent defendant
does not have a right to more than one free transcript. Smith v. Wilson, 2008 WL 4279884 * 1-3
(N.D. Ohio, Sep. 15, 2008) (because plaintiff already had received the transcript required by due
process, his motion for transcripts was denied to the extent that it asked for additional
transcripts).
Here, Petitioner’s request fails because he does not state that he or the attorney who
represented him in state court did not receive a copy of the Transcript during his direct appeal.
Nor has he explained a particularized need for the Transcript on collateral review. Accordingly,
this request is denied.
III.

Return of Seized Items
Finally, Petitioner requests return of “[a]ll books, papers, documents or other tangible

objects obtained from or belonging to the [Petitioner] or obtained from others by seizure or by
process . . . .” Doc. 5, p. 2. To the extent that this is a request for further discovery, it is denied
for the reasons set forth above. To the extent Petitioner is asking this Court to order the State of
Ohio to return seized property, the request is not appropriate under a § 2254 petition.
4

IV.

Conclusion
For the foregoing reasons, Petitioner’s Motion for Discovery and Inspection is DENIED.
IT IS SO ORDERED.

Dated: September 29, 2011
Kathleen B. Burke
United States Magistrate Judge

5