Howard v. Warden Ross Correctional Institution

Filing 12

ORDER denying 2 Motion for Discovery. Signed by Magistrate Judge Mark R. Abel on 07/19/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

:

Timothy Howard,

v.
Warden, Ross Correctional Institution,
Respondent

:

Civil Action 2:11-cv-00057

:

Petitioner

Judge Watson

:

Magistrate Judge Abel

:

ORDER
This matter is before the Magistrate Judge on petitioner Timothy Howard’s
January 18, 2011 motion for discovery (doc. 2).
Petitioner seeks the following: both sets of pictures that were taken at the scene;
interviews of witnesses; forensic test results; and all transcripts. Petitioner also seeks the
grand jury statements of the prosecutors. Petitioner maintains that the prosecution
made incorrect statements to the grand jury that were repeated to the trial jury during
opening and closing statements. Petitioner seeks Detective Barnette’s summary
following her interview of petitioner in addition to her forwarding address. Petitioner
maintains that her summary was crucial, but Detective Barnette transferred jobs and
could not be located for trial. Petitioner maintains that by not having Detective Barnette
available to authenticate her summary of her interview with him denied him a fair trial.
Petitioner also seeks the reports of the first responding officers, Byrd, Evans, and Shulls,
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and Detective Murray’s police report and summary. Petitioner maintains he is innocent
of the crime and is entitled to the evidence to demonstrate his innocence.
A habeas corpus petitioner is not entitled to discovery as of right. Bracy v.
Gramley, 117 S.Ct. 1793, 1796-97 (1997). Under the provisions of Rule 6(a), Rules
Governing Section 2254 Proceedings in the United States District Court, a petitioner
“shall be entitled to invoke the processes of discovery available under the Federal Rules
of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion
and for good cause grants leave to do so, but not otherwise.” Discovery is warranted
only where “specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .
entitled to relief [.]” Harris v. Nelson, 394 U.S. 286, 299 (1969), quoted in Bracy v.
Gramley, 117 S.Ct. at 1799. Finally, if a petitioner had the opportunity to develop the
facts in the state courts but failed to do so, discovery may be barred by the
Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(e)(2)(A)(ii).
See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992) (Requiring a showing of cause for the
failure to develop the facts in the state court and the resulting prejudice if the discovery
is not permitted in federal court).
Here, petitioner has not identified any discovery that he believes he needs to
respond to the Return of Writ. As a result, plaintiff’s motion is DENIED. If plaintiff
chooses to re-file his motion, he must identify what discovery he believes is necessary in
order to respond to the Return of Writ.
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Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.
For the reasons stated above, petitioner Timothy Howard’s January 18, 2011
motion for discovery (doc. 2) is DENIED.

s/ Mark R. Abel
United States Magistrate Judge

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