Jones v. Warden, Southern Ohio Correctional Facility
ORDER denying 11 Motion for Leave to Conduct Discovery. Signed by Magistrate Judge Chelsey M. Vascura on 8/30/2017. (kdp)(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
CASE NO. 2:17-CV-192
JUDGE GEORGE C. SMITH
Magistrate Judge Chelsey M. Vascura
WARDEN, SOUTHERN OHIO
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner challenges his November 21, 2014 conviction pursuant to his “no
contest” plea in the Franklin County Court of Common Pleas on felonious assault. Petitioner
asserts that he was denied a fair trial due to admission of identification testimony obtained
through the use of an unduly suggestive photo array conducted in violation of O.R.C. § 2933.83
(claim one); and that he was denied a fair trial due to the improper admission of his incriminating
statements to police, obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) (claim
two). It is the position of the Respondent that these claims lack merit.
Petitioner has filed a Motion for Leave to Conduct Discovery. (Doc. 11.) Petitioner
seeks an order compelling production of state-court Exhibits A through F, which include the
audiotape of the alleged victim; the audiotape of Petitioner; the constitutional rights waiver form;
the photo array; a photograph of the victim; and the “first responder letter.” The State submitted
these exhibits during the hearing on Petitioner’s motion to suppress evidence, and they appear to
have been made a part of the record on appeal. See Decision (Doc. 6-1, PageID# 266-67.)
Respondent, however, opposes Petitioner’s discovery request. Response in Opposition to Motion
for Discovery (Doc. 12.)
A habeas corpus petitioner is not entitled to discovery as a matter of right. Bracy v.
Gramley, 520 U.S. 899 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). “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.” Rule 6 of the Rules Governing Section 2254
Cases in the United States District Courts. Under this “good cause” standard, a district court
should grant leave to conduct discovery in habeas corpus proceedings only if “‘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 . . . .’” Bracy, 520 U.S. at
908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). See also Standford 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.” Blankenburg v. Miller, No. 1:16-cv-505, 2017 WL 3404772,
at *1 (S.D. Ohio Aug. 9, 2017) (citing Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001)
(citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000).
“Bald assertions and
conclusory allegations do not provide sufficient grounds to warrant requiring the government to
respond to discovery or to require an evidentiary hearing.” Thomas v. United States, 849 F.3d
669, 681 (6th Cir. 2017) (citing Stanford, 266 F.3d at 460). Where a petitioner fails to make a
“fact specific showing of good cause under Rule 6,” the court will deny the discovery request as
a mere fishing expedition. Id.; Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004).
Moreover, Rule 7 of the Rules Governing Section 2254 Cases in the United States
District Courts also permits federal habeas courts to direct the parties to supplement the statecourt record with materials relevant to the Court's resolution of the petition:
(a) In General. If the petition is not dismissed, the judge may direct
the parties to expand the record by submitting additional materials
relating to the petition. The judge may require that these materials
(b) Types of Materials. The materials that may be required include
letters predating the filing of the petition, documents, exhibits, and
answers under oath to written interrogatories propounded by the
judge. Affidavits may also be submitted and considered as part of
(c) Review by the Opposing Party. The judge must give the party
against whom the additional materials are offered an opportunity to
admit or deny their correctness.
However, the decision whether to order an expansion of the record under Rule 7 falls
within the sound discretion of the district court. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.
1988). Such expansion must be limited by the relevance of the proffered materials to the
constitutional claims presented.
Respondent has submitted a copy of the transcript of the hearing on Petitioner’s motion to
suppress evidence. (Doc. 6-2.) The audiotape of Petitioner’s interview with police during the
time that he signed the Miranda rights waiver form and made incriminating statements to police
has been made a part of the transcript of the hearing on the motion to suppress evidence.
(PageID# 356-88; 389-90.) Likewise, the audiotape made by police of the interview of the
alleged victim, Samuel Lacy (PageID# 346-52), and Lacy’s identification of Petitioner from the
photo array, has been made a part of the transcript of the hearing on the motion to suppress
evidence. (PageID# 420-22.) It also includes cross-examination by defense counsel on the
contents of the first responder report. (PageID# 443-48.) Therefore, this information has already
been made a part of the record before the Court. Although Respondent has not provided a copy
of the photo array Petitioner refers to, the state appellate court rejected Petitioner’s claim
regarding improper admission of his identification as the perpetrator, indicating that “Lacy was
clearly certain that he knew his assailant from the assailant’s frequent visits to the Schrock
Tavern.” Decision (Doc. 6-1, PageID# 265.) Therefore, it does not now appear that a copy of
the photo array used by police will assist Petitioner in establishing this claim. Moreover, to the
extent that Petitioner asserts that police violated state law, this claim does not provide a basis for
relief. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis
of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders,
848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional
state appellate court reviewing state courts’ decisions on state law or procedure. Allen v. Morris,
845 F.2d 610, 614 (6th Cir. 1988). “‘[F]ederal courts must defer to a state court’s interpretation
of its own rules of evidence and procedure’” in considering a habeas petition. Id. (quoting
Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). Petitioner does not indicate, and
it does not appear from the record, the manner in which a photograph of the victim will assist
him in establishing his claims.
Therefore, because it appears that the information Petitioner seeks has either already been
made a part of the record or will not assist Petitioner in establishing his claims,
Petitioner’s Motion for Discovery (Doc. 11) is DENIED.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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