Murrell v. Giroux et al
Filing
58
MEMORANDUM re Mtns for Discovery 36 , to Compel 41 and for Sanctions 42 . (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 8/20/15. (ma)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE MURRELL, JR.,
Petitioner
vs.
SUPT. NANCY GIROUX, et al.,
Respondents
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CIVIL NO. 1:CV-13-2573
(Judge Caldwell)
MEMORANDUM
I.
Introduction
Along with a co-defendant, Justin Glover, the pro se petitioner, Lawrence
Murrell, Jr., was convicted in the Court of Common Pleas of Dauphin County,
Pennsylvania, of first-degree murder, criminal conspiracy to commit murder, and abuse of
a corpse. He was sentenced to life imprisonment. He pursued state-court remedies and
then filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Presently before the court are Petitioner’s revised motion for discovery (Doc.
36), motion to compel (Doc. 41), and motion for sanctions (Doc. 42). For the reasons that
follow, the court will deny these motions.
II.
Standard of Review
“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, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997); see also United States v. Purcell,
667 F. Supp. 2d 498, 518 n.20 (E.D. Pa. 2009) (28 U.S.C. § 2255 motion) (quoting Bracy).
Instead, Rule 6(a) of the rules governing section 2254 proceedings provides that 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.” The scope of discovery is subject
to the district court’s discretion. Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011). The
court may abuse that discretion if it denies discovery that is essential for a habeas
petitioner to fully develop his claim. Id. The burden is on the petitioner to show good
cause. Id. The court will not authorize a habeas petitioner’s “fishing expedition through
the government’s files in hopes” of finding exculpatory evidence. Deputy v. Taylor, 19
F.3d 1485, 1493 (3d Cir. 1994)(quoted case omitted).
III.
Discussion
After Murrell filed a supplement to the Petition, Respondent filed a
Response. (Doc. 30). Murrell then filed a discovery motion seeking the production of his
entire trial transcript. (Doc. 32). Shortly thereafter he filed a revised discovery motion
seeking the production of three expert reports he claims the prosecution failed to disclose.1
(Doc. 36). On September 22, 2014, the court directed the government to produce the trial
transcript and file a response to Murrell’s supplemental discovery motion. (Doc. 40).
Several months after Respondent failed to timely comply with the court’s order to produce
1
Murrell identified the missing reports as: (1) an FBI “One Man Job Opinion”; (2) a
“Pedeology” report; and (3) a “Landscape Architecture” report. See Doc. 27, ECF pp. 3-4.
Murrell reports that his co-defendant “saw the opinion [in the first report] and returned it to
the lawyer representing him at the time”. (Id., ECF p. 3).
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the trial transcript and respond to Murrell’s second discovery motion, Murrell filed a motion
to compel (Doc. 41) and motion for sanctions (Doc. 42).
The wrongful withholding of an expert report that may suggest an alternative
theory, or plausible explanation for the details of the crime, other than that presented by
the prosecution at trial, would support a constitutional claim under Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). With that said, upon examination of the
claims presented in the habeas petition and Murrell’s request for discovery, he has not
shown good cause for permitting discovery in this situation. His request appears more like
a fishing expedition than a search for discovery necessary to support a claim presented in
his habeas petition.
First, as Respondent notes, Murrell does not raise any Brady-type claims in
his habeas petition. Second, a review of the state court opinions addressing Murrell’s
direct appeal and PCRA petitions also does not identify any Brady-type claims presented
to the state courts. See Docs. 48-14 and 48-17. Contrary to Murrell’s argument, the
government has not in any way waived its ability to object to his raising of such claims for
the first time in his habeas proceedings. It is also noted that none of the myriad of
ineffective-assistance-of-counsel claims raised by Murrell in his PCRA and habeas petition
relate to counsel’s alleged ineffectiveness for failing to obtain the “one man job” report
which Murrell admittedly knew of prior to his trial.2
2
Murrell did raise a claim of counsel’s ineffectiveness to obtain a DNA expert to
rebut the government’s DNA expert. This claim, however, does not relate to any of the three
requested expert reports allegedly withheld from Murrell.
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Moreover, Murrell does not point to any evidence in support of the existence
of any of the requested expert reports, or that the government is in possession of these
reports. (The government denies it has these reports.) Specifically, with respect to the
“one man job” report, Murrell only provides his own affidavit in which he states his codefendant told him of its existence shortly after his arrest. Alone, this self-serving affidavit
does not establish good cause for having the government search its files for the possible
existence of these reports that do not have any bearing on his habeas petition. While he
claims his co-defendant “saw the Opinion and returned it” to his lawyer at the time (Doc.
37, ECF p. 3), Murrell does not provide an affidavit from Glover or Glover’s counsel
attesting to this fact. Thus, Petitioner’s statement of the report’s existence, over the
government’s denial, is nothing more than unsubstantiated hearsay at best.3
As Murrell failed to raise a Brady-type claim in his direct appeal or PCRA
proceedings, or his habeas petition, and there is no evidence to support the existence of
any of the expert reports requested or facts to suggest the Commonwealth ever had such
reports but withheld them from him, he has failed to demonstrate good cause. His motion
for discovery of the three requested expert reports will therefore be denied.
3
Significantly, in a discovery motion quite similar to Petitioner’s that sought the
same “one man job” and other expert reports, Glover never states he actually saw the “one
man job” report. Rather, Glover states he only heard of its existence from his Maryland
attorney. See Glover v. Coleman, No. 3:CV-14-1800 (Conaboy, J.) (Doc. 13, ECF p. 3)
(“[Glover’s] attorney from Maryland visited petitioner in county jail and informed petitioner
about an expert opinion in the Maryland discovery which states one person committed the
crime . . .”).
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To the extent Murrell sought the disclosure of his complete trial transcript,
the court previously granted this request. (Doc. 40). It is undisputed that the government
provided Murrell with a copy of the transcript, albeit untimely. See Doc. 48-2 through Doc.
48-12. Murrell has not suggested how he has been harmed by this untimely receipt of his
trial transcript, or why he filed his reply prior to receiving the transcript if it was critical to
his reply. In light of these facts, Murrell’s motion to compel production of his trial transcript
and motion for sanctions for Respondent’s delayed production of his trial transcript are
denied.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: August 20, 2015
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