Fox v. Warden Belmont Correctional Institution
Filing
12
OPINION AND ORDER denying 11 Motion for Discovery. Signed by Magistrate Judge Norah McCann King on 3/29/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERRY S. FOX,
Petitioner,
vs.
Civil Action 2:15-cv-3074
Judge Marbley
Magistrate Judge King
WARDEN, BELMONT CORRECTIONAL
INSTITUTION,
Respondent.
OPINION AND ORDER
This is a habeas corpus action under 28 U.S.C. § 2254. This
matter is now before the Court on petitioner’s Motion for Discovery,
ECF No. 11. For the reasons that follow, the motion is denied.
In his motion, petitioner asks for the production of “all
documents containing the so called evidence the State used to convict
him,” and all documents in the possession of his trial and appellate
attorneys. Motion for Discovery, PAGEID# 214. Petitioner indicates
that he has a copy of the trial transcript, but he explains that the
requested discovery is “needed to create a solid foundation to support
all the grounds contained within the Petition.” Id.
The discovery processes contained in the Federal Rules of Civil
Procedure do not automatically apply to habeas corpus actions. “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 (1997). Rule 6 of the Rules Governing
1
Section
2254
Cases
in
United
States
District
Courts
provides
in
relevant part as follows:
(a) Leave of Court Required. 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. If necessary for effective discovery, the judge
must appoint an attorney for a petitioner who qualifies to
have counsel appointed under 18 U.S.C. § 3006A.
(b) Requesting Discovery. A party requesting discovery must
provide reasons for the request. The request must also
include any proposed interrogatories and requests for
admission, and must specify any requested documents.
Under this “good cause” standard, a district court should grant leave
to
conduct
discovery
in
habeas
corpus
proceedings
only
“‘where
specific allegations before the court show reason to believe that the
petitioner may, if the facts are more fully developed, be able to
demonstrate that he is . . . entitled to relief. . . .”’
U.S. at 908–909 (quoting Harris v. Nelson, 394 U.S.
Bracy, 520
286, 300 (1969)).
See also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).
“The burden of demonstrating the materiality of the
information requested is on the moving party.” Stanford,
266 F.3d at 460. Rule 6 does not “sanction fishing
expeditions
based
on
a
petitioner's
conclusory
allegations.” Rector v. Johnson, 120 F.3d 551, 562 (5th
Cir.1997); see also Stanford, 266 F.3d at 460. “Conclusory
allegations are not enough to warrant discovery under [Rule
6]; the petitioner must set forth specific allegations of
fact.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994).
Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004).
The Petition, ECF No. 1, challenges petitioner’s 2013 conviction
in the Licking County Court of Common Pleas on charges of gross sexual
imposition
evidence
and
was
intimidation.
not
sufficient
Petitioner
asserts
to
the
sustain
four
claims:
conviction
on
the
either
charge; he was denied the effective assistance of counsel when his
attorney failed to explain the nature and cause of the accusations; he
was arrested without probable cause or warrant; and the prosecution
engaged
in
misconduct
during
the
opening
statement
and
closing
argument. Petition. Respondent argues that the latter two claims are
procedurally
defaulted
and
that
the
first
two
claims
are
without
merit. Return of Writ, ECF No. 5.
In the view of this Court, petitioner has not established good
cause
for
claims
the
requested
asserted
Moreover,
if
in
the
petitioner
discovery.
Petition
It
may
concludes
presently
be
that
appears
resolved
resolution
on
of
that
the
the
record.
his
claims
requires reference to the trial transcript, which he possesses, he
remains free to submit the transcript for the Court’s consideration.
Accordingly, the Motion for Discovery, ECF No. 11, is DENIED.
March 29, 2016
(Date)
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?