Thompson v. Warden, Warren Correctional Institution

Filing 80

DECISION AND ORDER ON MOTION FOR ADDITIONAL DISCOVERY- Without deciding its relevance, the Court GRANTS Petitioners motion to include Defense Exhibit B in this Courts record. Petitioner shall submit a copy of that document forthwith. If Respondent di sputes the authenticity of the copy, he may file an authenticated copy from the Common Pleas Courts records. The balance of Petitioners motion includes arguments which need not be adjudicated todecide if the record should be expanded. Signed by Magistrate Judge Michael R. Merz on 6/12/2020. (kma)(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
WESTERN DIVISION AT DAYTON
CRAIG A. THOMPSON,
Petitioner,

:

- vs -

Case No. 3:18-cv-117
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,
Warren Correctional Institution
:
Respondent.

DECISION AND ORDER ON MOTION FOR ADDITIONAL
DISCOVERY

This habeas corpus case is before the Court on Petitioner’s Request for Additional
Discovery (ECF No. 76) which Respondent opposes (ECF No. 78).

Trial Court Docket Sheets

Frist Thompson avers that the supplemental record most recently filed by Respondent is
incomplete. He asserts he requested the Second District Court of Appeals to take judicial notice
of various trial court dockets, that the motion was granted, and that “the exhibits were considered
for purposes of the appeal (ECF No. 76, PageID 3012). He continues that the “motion for judicial
notice, along with the exhibits attached, are requested for use in this habeas petition.” Id.
This is not really a request for additional discovery: Thompson knows what is in his motion
for judicial notice and the attachments. Rather, it is properly considered as a motion to expand the

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record. Thompson has not attempted to show how these documents are relevant to his pending
claims. Presuming their relevance, however, they were before the Second District and considered
by that court. There is no prejudice to Respondent from expanding the record to include these
docket sheets. The Motion is granted to the extent of allowing these docket sheets to be considered
by this Court in adjudicating this case; their consideration is not precluded by Cullen v. Pinholster,
563 U.S. 170 (2011). There is no need to furnish this Court with copies of those docket sheets
since the docket of the Second District in this case is publicly accessible.

Defense Exhibit B

Next Thompson seeks to have the record expanded to include “Defense Exhibit B”, a
document that purports to be the work schedule of Thompson’s co-defendant Bradley Burns and
which Thompson claims his trial lawyer should have used to impeach Burns’ girlfriend Kaitlyn
Kerg who claimed to have heard Burns and Thompson planning the crime in suit. The Court had
originally denied adding the exhibit to the record on the basis of Pinholster, but then corrected
itself upon finding that the exhibit had been admitted in evidence (ECF No. 33, PageID 2300). At
the time of the correction, the Magistrate Judge stayed the case pending exhaustion of the relevant
claim and invited Thompson to renew the motion after exhaustion. Id.
Because Defense Exhibit B was considered by the Ohio courts in adjudicating Thompson’s
case, it may also be considered by this Court. That consideration, however, is not de novo, but
rather in the context of deciding whether the state court’s decision is an unreasonable application
of clearly established Supreme Court law or an unreasonable determination of the facts, based on
the evidence before the state courts, which includes Defense Exhibit B. Respondent asserts

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Defense Exhibit B is already in this Court’s record at ECF No. 25, but there is no attached Exhibit
B. Nor is it attached to Petitioner’s instant Motion. Without deciding its relevance, the Court
GRANTS Petitioner’s motion to include Defense Exhibit B in this Court’s record. Petitioner shall
submit a copy of that document forthwith. If Respondent disputes the authenticity of the copy, he
may file an authenticated copy from the Common Pleas Court’s records.
The balance of Petitioner’s motion includes arguments which need not be adjudicated to
decide if the record should be expanded.

June 12, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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