Malone v. Trammell

Filing 61

ORDER denying 30 Motion for Discovery. Signed by Honorable Timothy D. DeGiusti on 11/5/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

RICKY RAY MALONE,
Petitioner,
vs.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.

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Case No. CIV-13-1115-D

ORDER
Before the Court is Petitioner’s Motion for Discovery. In his Motion, Petitioner
asserts that even though he has continued to request discovery throughout his proceedings,
there should be no assumption that prosecutors in his case have complied with their
obligation under Brady v. Maryland, 373 U.S. 899 (1997), and Napue v. Illinois, 360 U.S.
264 (1959), to produce exculpatory evidence. Petitioner seeks an Order from this Court
permitting him to conduct discovery of the following: (1) any and all files concerning this
case held or maintained by any government entity; (2) all district attorney and/or prosecution
records in this case; (3) any and all documents, recordings, or things concerning the
competency proceedings held in the District Court of Comanche County, held or maintained
by any government entity; (4) any and all documents, recordings, or things concerning
Tammy Sturdevant’s involvement in this case, including any documents reflecting
promises/deals made or considered to withhold prosecution; (5) any and all documents,

recordings, or things concerning Tyson Anthony’s involvement in this case, including any
documents reflecting promises/deals made or considered to withhold prosecution; (6) any and
all documents, recordings, or things concerning James Rosser’s involvement in this case,
including any documents reflecting promises/deals made or considered to withhold
prosecution; (7) any and all documents, recordings, or things concerning Jamie Rosser’s
involvement in this case, including any documents reflecting promises/deals made or
considered to withhold prosecution; (8) a description of all oral contacts and/or conversations
between any government entity and mental health professionals concerning the competency
proceedings conducted in the District Court of Comanche County and/or relating to the
competency matters raised in Petitioner’s Writ of Habeas Corpus; and, (9) a description of
all oral contacts and/or conversations between law enforcement and Tammy Sturdevant,
Tyson Anthony, James Rosser, Jamie Rosser, and/or Petitioner.
Discovery in capital habeas cases is governed by the Rules Governing Section 2254
Cases and the Federal Rules of Civil Procedure:
(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.
Rules Governing Section 2254 Cases, Rule 6 (a) and (b).
In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court determined that the
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petitioner, who was convicted before a trial judge who himself was subsequently convicted
of taking bribes in criminal cases, showed “good cause” for discovery on his due process
claim of actual judicial bias. The petitioner contended that although the trial judge had not
been bribed in his case, the judge had an interest in a conviction to deflect suspicion that he
was taking bribes in other cases. The petitioner sought discovery in his capital habeas case
in support of his claim, specifically requesting the sealed transcript of the trial judge’s
criminal trial, reasonable access to the prosecution’s materials in the trial judge’s criminal
trial, the opportunity to depose persons associated with the trial judge, and a chance to search
the trial judge’s rulings for a pattern of pro-prosecution bias. The district court rejected the
fair trial claim and denied the petitioner’s motion for discovery on the conclusion that his
allegations contained insufficient specificity or good cause to justify discovery. Id. at 902.
The Supreme Court first noted that a habeas petitioner is not entitled to discovery as
a matter of course, but may be entitled to invoke the process if the judge, in the exercise of
his discretion and for good cause, grants leave to do so, but not otherwise. Id. (quoting Rule
6(a) of the Rules Governing Section 2254 Cases). There was no question that if the
petitioner proved the essential elements of his claim – that the judge was biased in his case
to detract attention away from other cases in which he had accepted a bribe – that his own
case would violate the Due Process Clause of the Fourteenth Amendment. The Supreme
Court turned, therefore, to the question of whether the petitioner had shown “good cause” for
appropriate discovery.
In Harris, we stated that “where specific allegations before the court show
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reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief, it is the duty of the court to
provide the necessary facilities and procedures for an adequate inquiry.”
Bracy at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
In the district court, the petitioner had raised the claim and submitted documentary
support including the trial judge’s indictment, newspaper articles setting out a witness’s
testimony at the trial describing an incident where he bribed the trial judge to fix a murder
case, a copy of the government’s proffer of evidence in aggravation describing in
considerable detail the trial judge’s corruption both before and after he became a judge and
confirming that the petitioner’s murder trial was sandwiched “tightly between other murder
trials that [the trial judge] fixed.” Id. at 906-07.
The Supreme Court determined the petitioner had shown “good cause,” stating:
Were it possible to indulge this presumption here, we might well agree with
the Court of Appeals that petitioner’s submission and his compensatory-bias
theory are too speculative to warrant discovery. But, unfortunately, the
presumption has been soundly rebutted: Maloney was shown to be thoroughly
steeped in corruption through his public trial and conviction. We emphasize,
though, that petitioner supports his discovery request by pointing not only to
Maloney’s conviction for bribe taking in other cases, but also to additional
evidence, discussed above, that lends support to his claim that Maloney was
actually biased in petitioner’s own case. That is, he presents “specific
allegations” that his trial attorney, a former associate of Maloney’s in a law
practice that was familiar and comfortable with corruption, may have agreed
to take this capital case to trial quickly so that petitioner’s conviction would
deflect any suspicion the rigged Rosario and Chow cases might attract.
Id. at 909.
In the instant case, Petitioner has failed to present any specific allegations to
demonstrate a showing of good cause for discovery. Petitioner did not raise a Brady claim
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in his Petition and also did not raise one in state court. Citation to other unrelated cases
involving Brady violations alone is insufficient to state a valid basis for the requested
discovery. As detailed thoroughly in the State’s Response1, Petitioner’s case has twice been
tried in state court. Prior to the original trial, defense counsel filed detailed motions for
general discovery to which the prosecutor filed a written response stating the entire file had
been copied and delivered to defense counsel and that the file remained open for counsel’s
review. The prosecutor filed a written list of 129 witnesses with summaries of testimony of
the identified potential witnesses in Petitioner’s trial. Prior to the 2010 sentencing, the
prosecutor filed a Notice of Open File advising the court and counsel that all material
relevant to Petitioner’s case was open for inspection. This was repeated by the prosecution
in its Response to Defendant’s Motion for Discovery, along with a witnesses list and
summary of expected testimony. The prosecutor’s open file policy was repeated at the pretrial conference prior to the resentencing trial, emphasizing that all statements made by the
defendant to law enforcement, medical personnel, and jail and prison staff were in the
possession of the defendant. Defense counsel replied he was not aware of anything that may
exist that they didn’t have. The details of any deals made with witnesses for their testimony
were presented in Petitioner’s first trial and were acknowledged by defense counsel and
explored at trial.
Federal habeas is not a forum to re-litigate State trials. Autry v. Estelle, 464 U.S. 1,

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Response in Opposition to Petitioner’s Motion for Discovery and Brief in Support, pp.
5-8 (Dkt. No. 32).
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3 (1983); Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Discovery is reserved for those
situations where a petitioner demonstrates good cause by asserting specific allegations that,
if fully developed, would entitle him to relief. Accordingly, Petitioner’s Motion for
Discovery (Dkt. No. 30) is DENIED.
IT IS SO ORDERED this 5th day of November, 2015.

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