Sample v. Colson

Filing 58

ORDER granting in part and denying in part 43 Motion for Discovery. Signed by Chief Judge Jon Phipps McCalla on 7/23/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
(
(
)
)
(
Petitioner,
(
)
)
(
v.
(
)
)
(
ROLAND COLSON, Warden, Riverbend(
)
Maximum Security Institution,
(
)
)
(
Respondent.
(
)
)
(
MICHAEL SAMPLE,

No. 11-2362-JPM-dkv

ORDER GRANTING IN PART AND DENYING IN PART
PETITIONER’S MOTION FOR DISCOVERY

I.
II.
III.
IV.

V.

RELEVANT PROCEDURAL BACKGROUND
TENNESSEE SUPREME COURT SUMMARY
THEORIES OF THE CASE
BACKGROUND
A.
Low’s Grocery Robberies, August 7 and 29, 1981
B.
Lillie & Eddie’s Grocery Robbery, August 18, 1981
1.
Testimony of Eddie Wright
2.
Testimony of Darrell Perry
3.
Testimony of Gino White1
4.
Testimony of Michael Winfrey
5.
Non-Testifying Witnesses
6.
Suspects in Lillie & Eddie’s Grocery Robbery
C.
L & G Grocery Robbery and Murders, August 29, 1981
1.
Testimony of Melvin Wallace
2.
Testimony of Charles Rice
3.
Testimony of Grover Jones
4.
Testimony of Charles Malone
5.
Testimony Regarding Petitioner’s Arrest
6.
Non-Testifying Witnesses
7.
Suspects in the L & G Grocery Robbery and Murders
RELEVANT CLAIMS

1

This individual’s name is spelled “Geno White” in the Motion for
Discovery. (See ECF No. 43 at 4.) This individual’s name is spelled “Gino White”
in the supplemental police report (see ECF No. 44-27 at 5), the trial transcript
(see ECF No. 21-4 at 2142), the Amended Petition (see ECF No. 11 at 27), and in
the Tennessee Court of Criminal Appeals 2010 Opinion, see Sample v. State, No.
W2008-02466-CCA-R3-PD, 2010 WL 2384833, at *17 (Tenn. Crim. App. June 15, 2010).
The Court will use the spelling “Gino” to refer to this individual.

VI.

STANDARD
A.
Discovery Related to Procedurally Defaulted Claims
B.
Impact on Jury Verdict
C.
Pinholster
VII. ANALYSIS
A.
DA & MPD Records (“Request A”)
B.
Charles Rice (“Request B”)
1.
School Records (“Request B1”)
2.
Juvenile Records (“Requests B2-B6”)
3.
Deposition of Charles Rice (“Request B7”)
C.
Alibi Evidence for the L & G Grocery Robbery and Murders,
the Lillie & Eddie’s Grocery Robbery, and the Low’s
Robberies (“Request C”)
D.
Consideration Given to Witnesses (“Request D”)
1.
Melvin Wallace (“Requests D1-D2”)
2.
Charles Malone (“Requests D3-D5”)
3.
Eddie wright (“Request D6”)
4.
Mike Winfrey (“Requests D7-D9”)
5.
Gino White (“Requests D10-D11”)
E.
The L & G Grocery and Grover Jones (“Request E”)
1.
Law Enforcement and Prosecution Files Related to
Drug Activity (“Requests E1, E3”)
2.
Consideration Given to Grover Jones (“Request E2”)
3.
Deposition of Grover Jones (“Request E4”)
F.
DA & MPD Files Regarding Lillie & Eddie’s Grocery
(“Request F”)
G.
Law Enforcement Records Related to Drugs at Lillie &
Eddie’s Grocery (“Request G”)
H.
DA and MPD Records for the Low’s Grocery Robberies
(“Request H”)
I.
Certain Individuals’ MPD and DA files (“Request I”)
1.
Individuals Suspected of Participating in the
August 29, 1981, Robbery and Murders at the L & G
Grocery and/or Individuals who Knew of the Ongoing
Criminal Activities at the L & G Grocery ("Request
I1”)
2.
Individuals Suspected in the Robbery of, and/or
Familiar with Ongoing Criminal Activities at,
Lillie & Eddie's Grocery ("Request I2”)
3.
Individuals Suspected of Participating in the
August 7, 1981, and August 29, 1981, Low's Grocery
Robberies ("Request I3”)
VIII.
CONCLUSION
I. RELEVANT PROCEDURAL BACKGROUND
On August 2, 2012, Petitioner Michael Sample, through counsel,
filed a Motion for Discovery and a supporting memorandum. (ECF
No. 43; ECF No. 44.) On September 4, 2012, Respondent filed a

2

Response. (ECF No. 46.) Petitioner replied on September 18, 2012.
(ECF No. 48.) On October 5, 2012, Respondent filed a “Supplemental
Response to Petitioner’s Reply to Respondent’s Discovery Motion
Response.” (ECF No. 52.) On October 10, 2012, Petitioner filed a
“Reply to Respondent’s Supplemental Response Regarding Motion for
Discovery.” (ECF No. 54.) On March 27, 2013, Respondent filed a
“Notice of Supplemental Authority in Support of Responses to
Petitioner’s Motion for Discovery.” (ECF No. 56.) On April 8, 2013,
Petitioner

filed

a

“Notice

of

Supplemental

Authority.”

(ECF

No. 57.)
For the following reasons, Petitioner’s Motion for Discovery
is GRANTED IN PART and DENIED IN PART.
II. TENNESSEE SUPREME COURT SUMMARY
The Tennessee Supreme Court, in its opinion issued October 15,
1984, summarized the facts of the case as follows:
On August 29, 1981, at approximately 11:00 p.m.
Melvin Wallace, Jr., went into the L & G Sundry Store at
1069 North Watkins in Memphis to purchase two barbecue
sandwiches. When he entered, there were four men in the
Sundry Store, including two clerks, Benjamin Cooke and
Steve Jones, who were known to Wallace as he was a
regular customer. The other two black men were the
defendants, Larry McKay and Michael Eugene Sample.
Wallace did not know them but positively identified them
in a line-up at 2:43 p.m. on August 31, 1981, as the
murderers of Cooke and Jones and Sample as the person who
shot him in the thigh and back and attempted to shoot him
in the head.
Wallace testified that he went to the back of the
store where Cooke had gone to prepare the sandwiches.
McKay was also standing in the back with a quart of 45
Beer mumbling to himself. Not wanting to get involved
with a drunk, Wallace turned and directed his attention
to the front of the store where Jones and defendant
Sample were standing. When he thought the sandwiches
would be ready, he looked around at Cooke and saw that
3

McKay had gone behind the counter and was holding a gun
at Cooke’s head. When Wallace realized “it was a robbery”
and “broke and ran for the front door,” Sample hollered
for him to halt and shot him in the thigh. Wallace tried
to play dead but Sample came over and said, “This nigger
ain’t dead,” and shot him in the back. Wallace had heard
Sample demanding that Jones give him all the money and
heard Jones say, “Man, I gave you everything I had.”
After hearing Sample say several times, “I ought to kill
all you son-of-a-bitches,” Wallace heard him say, “Kill
every son-of-a-bitch in here,” and the defendants started
shooting. Wallace testified he saw McKay shoot Cooke in
the head. Sample came back to where Wallace was lying on
the floor and put a pistol to his head. It clicked
several times and did not go off. Wallace testified that
he “came up off the floor” and started wrestling with
Sample. The gun went off past Wallace’s head and he
lapsed into unconsciousness. When Wallace woke up, he
heard Sample say, “Let’s get the hell out of here.”
Cooke and Jones died from the bullet wounds to their
heads; but when the police arrived shortly after the
killers left, Wallace was able to give them information
about the episode and gave a description of the killers
while he was receiving medical care at the scene and
at the hospital. One of the investigating officers
remembered that a grocery store across the street from
the L & G Sundry Store had been robbed about ten days
earlier, and that the witnesses had said the robbers were
two black males wearing blue-green surgical caps. Among
the items taken in that robbery was a .45 caliber
automatic pistol that had a tendency to misfire. Shell
casings from a .45 caliber automatic were found in the
Sundry Store; and putting together leads from the two
robberies, the police apprehended Sample and McKay the
next day. They were in a car with a third man, and the
.45 automatic with the serial number of the pistol stolen
from the grocery across the street was found on McKay. A
.32 caliber revolver was found inside the car. Bullets
recovered from Jones’ cheek, Cooke’s head and chest and
Wallace’s leg had been fired from the .32 caliber
revolver found in the car. Two blue hospital surgical
caps were found in the car. More than two hundred and
perhaps as much as seven hundred dollars in cash was
stolen from the Sundry Store; and McKay, who was
unemployed, had $166.30 on his person when arrested.
Sample had $195 in cash at that time. The third man in
the vehicle testified to incriminating circumstances
linking defendants to recent criminal activity.
Charles Rice, age sixteen, went to the L & G Sundry
Store to buy cigarettes and as he arrived at the door he
4

saw the robbery in progress, specifically the gun pointed
at the head of one of the clerks. He turned and ran home
and told his mother what he had seen and later reported
the information to the police. He made a positive
identification of both defendants.
State v. McKay, 680 S.W.2d 447, 448-49 (Tenn. 1984).
III. THEORIES OF THE CASE
The prosecution’s theory was that Petitioner and Larry McKay
committed both the L & G Sundry Store (“L & G Grocery”) robbery and
murders and the Lillie and Eddie’s Grocery Store (“Lillie & Eddie’s
Grocery”) robbery. The prosecution used evidence from the Lillie
& Eddie’s Grocery robbery to identify the defendants and prove
their guilt. (See, e.g., ECF No. 21-1 at 1764.) At the L & G
Grocery robbery and murder trial (the “L & G Grocery trial”), the
prosecution focused on the following evidence: (1) the similarities
between the descriptions of the Lillie & Eddie’s Grocery robbers
and the L & G Grocery robbers (see id.; ECF No. 21-6 at 2471); (2)
the serial number on the .45 caliber automatic weapon, which was
found on Petitioner’s co-defendant at his arrest, matched the
serial number of the gun stolen from Lillie & Eddie’s Grocery (see
ECF No. 21-1 at 1765; ECF No. 21-6 at 2464); (3) the shell casings
found at the L & G Grocery matched shell casings from the .45
caliber automatic weapon stolen from Lillie & Eddie’s Grocery (see
ECF No. 21-1 at 1767); (4) the general description of the Lillie &
Eddie’s Grocery robbers matched Petitioner, McKay, and Charles
Malone and the car that they were in at the time of their arrest
matched the description of the car from the Lillie & Eddie’s
Grocery robbery (see id. at 1764; ECF No. 21-6 at 2470-71); (5) the

5

.32 caliber revolver confiscated at Petitioner’s arrest was matched
to the .32 caliber slugs taken from Melvin Wallace, Steve Jones,
and Benjamin Cooke’s bodies (see ECF No. 21-1 at 1766-67; ECF No.
21-6

at

2479-80);

(6)

the

eyewitness

identification

of

the

defendants by Melvin Wallace, Charles Rice, and Eddie Wright (see
ECF No. 21-6 at 2476-78); and (7) the testimony of Charles Malone,
see infra pp. 21-22, regarding the events that occurred just prior
to the defendants’ arrest (see ECF No. 21-6 at 2472, 2476).
Defense counsel presented no evidence the L & G Grocery trial.
Instead, the defense focused on the following: (1) whether the
prosecution could prove its case beyond a reasonable doubt and to
a moral certainty (see ECF No. 21-1 at 1770; ECF No. 21-7 at 251921); (2) whether the identification of Petitioner was tainted (see
ECF No. 21-7 at 2524-25); (3) whether Charles Malone’s testimony
was reliable (see id. at 2534-35); (4) whether Grover Jones’
testimony, the store’s owner and victim Steve Jones’ uncle, about
his ability to make six hundred dollars in just two hours selling
barbecue and other food items was truthful and whether Grover Jones
was instead engaging in illegal activity through his store (see id.
at

2521-22);

(5)

whether

Melvin

Wallace

and

Charles

Rice’s

identifications of Petitioner were credible (see id. at 2523-27);
and (6) whether the person Grover Jones identified as “Junebug” was
the person that should be on trial (see id. at 2522).
IV. BACKGROUND
Three other robberies were investigated in conjunction with
the L & G Grocery robbery and murders: the August 18, 1981, robbery

6

of Lillie & Eddie’s Grocery Store; and the August 7, 1981, and
August 29, 1981, robberies of Low’s Cash Grocery (“Low’s Grocery”).
(See ECF No. 44-1 at 13.) Petitioner and McKay were ultimately
indicted for “murder during the perpetration of a robbery with a
deadly weapon and murder in the first degree” for each of the
August 29, 1981, L & G Grocery murders. (See ECF No. 21-1 at 1760.)
Jury selection in the L & G Grocery trial began October 18,
1982. (See ECF No. 19-10 at 1, 22.) The prosecution’s case-in-chief
commenced October 28, 1982. (ECF No. 21-1 at 1757.) Both Petitioner
and his co-defendant McKay pled not guilty to all charges. (ECF No.
21-1

at

1759-60.)

The

following

individuals2

relevant

to

Petitioner’s Motion for Discovery testified regarding the L & G
Grocery robbery and murders: Melvin Wallace, the surviving L & G
Grocery victim (ECF Nos. 21-2 to -3 at 1864-1939); Charles Rice,
witness to the L & G Grocery robbery (ECF Nos. 21-4 to -5 at 21922236); Grover Jones, owner of the L & G Grocery and uncle to victim
Steve Jones (ECF No. 21-2 at 1783-1815); and Charles Malone, who
was arrested with Petitioner and McKay on August 30, 1981. (ECF No.
21-5 at 2301-27; see ECF No. 44-1 at 1.)

2

The witnesses who testified at the L & G Grocery trial in the guilt
phase, in order of their testimony, are as follows: Margaret B. Cooke, Grover
Jones, Jr., Charles Warren Harlan, Thomas M. Carr, Joe Dan Welch, Melvin Wallace,
Jr., William B. Dawkins, Ray O. Schwill, II, Robert G. Franklin, Eddie Louis
Wright, Darrell Perry, Gino White, Mike Bernard Winfrey, Charles Everett Rice,
Delores Rice, A. J. Walton, Randy Oliver, C. J. Harrell, Charles Everett Malone,
Terry G. Hayes, James D. Douglas, Barney Wright, and Patrick Vincent Garland.
(See ECF No. 21-2 at lxix; ECF No. 21-3 at lxxii; ECF No. 21-4 at lxxvi; ECF
No. 21-5 at lxxix; ECF No. 21-6 at lxxxii.) The witnesses who testified at the
L & G Grocery trial in the sentencing phase, in order of their testimony, are as
follows: Ginger Reynolds, James E. Hudson, Larry McKay, Gloria Ann Brown, Thelma
McKay, Douglas E. Browning, Danny Antwine, Beverly Sample Payne, Maybelline
Yancy, Emmanuel Yancy, Osborne Lumpkin, and Nancy Jean Edmonds. (See ECF No. 21-7
at lxxxv-lxxxvii.)

7

Evidence regarding the Lillie & Eddie’s Grocery robbery was
also

admitted

at

the

L

&

G

Grocery

trial.3

The

following

individuals relevant to Petitioner’s Motion for Discovery testified
regarding the Lillie & Eddie’s Grocery robbery: Eddie Louis Wright,
owner of Lillie & Eddie’s Grocery and witness to the Lillie &
Eddie’s Grocery robbery (ECF Nos. 21-3 to -4 at 2012-82); Darrell
Perry, witness to the Lillie & Eddie’s Grocery robbery (ECF No. 214 at 2082-87, 2116-42); Gino White, witness to the Lillie & Eddie’s
Grocery robbery (ECF No. 21-4 at 2142-69); and Mike Bernard
Winfrey,4 witness to the Lillie & Eddie’s Grocery robbery (ECF
No. 21-4 at 2170-87). There was no testimony regarding the Low’s
Grocery robberies at the L & G Grocery trial. (See ECF Nos. 19-9 to
-10; ECF Nos. 20-1 to -10; ECF Nos. 21-1 to -7); see also Sample,
2010 WL 2384833, at *19.
The jury began its deliberations at 9:50 a.m. on November 3,
1982, and returned a verdict at 11:25 a.m. that same day finding
Petitioner and McKay guilty of two counts of felony murder. (ECF
No. 21-7 at 2570-72); see Sample, 2010 WL 2384833, at *1.
In his Motion for Discovery, Petitioner seeks information
related to not only the L & G Grocery robbery and murders but also
the

Lillie

Petitioner

&

Eddie’s

asserts

that

Grocery

and

these

other

Low’s

Grocery

crimes

are

robberies.
relevant

to

Petitioner’s case because of identification issues raised at the

3
The prosecution introduced evidence regarding the Lillie & Eddie’s
Grocery robbery at the L & G Grocery trial for the reasons articulated in Section
III. See supra pp. 5-6.
4

Winfrey is also known as Mike “Funches.” (ECF No. 21-4 at 2170.)

8

L & G Grocery trial and during his post-conviction proceedings. See
Sample,

2010

WL

2384833,

at

*4-7,

*17-19.

The

Low’s

Grocery

robberies, Lillie & Eddie’s Grocery robbery, and L & G Grocery
robbery and murders are addressed in turn.
A.

Low’s Grocery Robberies, August 7 and 29, 1981
Annie and Tommy Low5 owned Low’s Grocery, which was robbed

twice: once on August 7, 1981, and once at approximately 3:00 p.m.
on August 29, 1981, eight hours before the L & G Grocery robbery
and murders. Id. at *19. Low’s Grocery was located at 608 East
Trigg Avenue.6 (See ECF No. 44-35.) Annie and Tommy Low were
present during both robberies. (See ECF Nos. 44-35 to -38.) James
Nunnley and his friend Jackie witnessed the Low’s Grocery robbery
on August 7, 1981. (ECF No. 44-1 at 20.) Franklin Wright, a twelveyear-old girl, witnessed the Low’s Grocery robbery on August 29,
1981, and provided a statement to the police. (ECF No. 44-47.)
Both Annie and Tommy Low identified McKay as the perpetrator
of the August 7, 1981, and August 29, 1981, robberies in a lineup
on August 31, 1981, at 2:43 p.m. (See ECF No. 44-14.) Annie Low
tentatively identified Ralph Franklin, McKay’s cousin (see ECF
No. 21-5 at 2313), as the other perpetrator at this first lineup.
(See ECF No. 44-36 at 3; see also ECF No. 44-14.) Annie and Tommy
Low viewed a second lineup on August 31, 1981, at 2:55 p.m., in

5

The last name is spelled “Lowe” in the Tennessee Court of Criminal
Appeals’ opinion. See Sample, 2010 WL 2384833, at *4, *19. However, the witness
statements that were produced are signed “Low.” (See ECF Nos. 44-35 to -38.)
6

Low’s Grocery is located in a different section of Memphis than the
L & G Grocery and Lillie & Eddie’s Grocery. (See ECF No. 44-2.)

9

which Petitioner was the person at the first position in the
lineup. (See ECF No. 44-12.) Neither Annie nor Tommy Low identified
Petitioner at this lineup. (See id.)7 Franklin Wright identified
Tommy

Lee

Bradford

in

a

photographic

lineup

as

one

of

the

perpetrators. (ECF No. 44-44 at 2.)
B.

Lillie & Eddie’s Grocery Robbery, August 18, 1981
Eddie Louis Wright was the owner of Lillie & Eddie’s Grocery,

which was robbed on August 18, 1981. (ECF No. 21-3 at 2012-18.)
Lillie & Eddie’s Grocery was located at 1062 North Watkins Street,
across the street from the L & G Grocery. (Id. at 2012-13.)
Testimony about the Lillie & Eddie’s Grocery robbery was admitted
at the L & G Grocery trial. (See, e.g., ECF Nos. 21-3 to -4.)
1.

Testimony of Eddie Wright

Eddie Wright testified at Petitioner’s trial about the Lillie
& Eddie’s Grocery robbery that occurred on August 18, 1981. Wright
was a witness to the robbery. Wright stated that two black males
entered the store wearing blue or green hospital surgical caps.
(ECF No. 21-3 at 2013, 2019.) The shorter of the two men walked up
to the counter and made a purchase. (Id. at 2013.) The taller of
the two men walked over to the meat counter. (Id.) The shorter man
at the counter asked for soap pads. (Id.) After Wright told him

7
The Tennessee Court of Criminal Appeals stated that Annie Low
“tentatively identified” Petitioner as the second man involved in the robbery.
Sample, 2010 WL 2384833, at *19. However, the individual Annie Low tentatively
identified at the first lineup in position number six was Ralph Franklin, not
Petitioner. Compare Sample, 2010 WL 2384833, at *7, *19 (“Mrs. Lowe said the
following about Petitioner Sample, who was number six in the lineup, ‘Number six,
I am not to[o] positive about him being the second guy involved, the one who
snatched the money from our drawer in the register, but without a doubt number
four was the one who held us up twice.’”), with (ECF No. 44-36 at 3), (ECF No.
44-35 at 1), (ECF No. 44-12), and (ECF No. 44-14).

10

they did not have any, the shorter man walked to the back of the
store, came back with a bag of chips, and laid them on the counter.
(Id.) The shorter man said, “Set this money out” and started
hitting the register, trying to open it. (Id.) Wright testified,
I thought he was playing, and then I looked up and
I saw the taller male had a gun pointed at one of the
kids that was in the store. It might have been pointed at
me, but in the direction the kid was standing, the gun
was pointed towards him. Then the shorter one jumped over
the counter and said, “Open the register.”
(Id. at 2014-2015.) The shorter man asked if Wright had a gun, and
Wright told him “no.” (Id. at 2015.) The shorter man then started
searching for a gun and about seven to eight minutes later the
shorter man found a gun under the counter. (Id.) The gun was a .45
caliber automatic that Wright’s son Michael had given him. (Id.)
The gun would occasionally misfire. (Id.)
The shorter man put Wright’s gun in his belt and asked him for
his rings. (Id. at 2017.) Wright was not wearing any rings at the
time. (Id.) The shorter man started taking the money out of the
register and putting it in a paper sack which fell apart. (Id.)
Billy Smith, one of the Lillie & Eddie’s Grocery employees, offered
to get a bigger sack, and the man took the gun out and bumped Smith
in the side with it and told him, “Hell, no. I don’t want you to do
a damn thing.” (Id.; see ECF No. 21-4 at 2086.)
The taller man was standing near the entrance to the store
holding a gun and pointing it towards the people in the store. (ECF
No. 21-3 at 2016.) The taller man told Wright, “Take that change
out of there, too,” and “Get some of them Kool cigarettes off
there.” (Id. at 2017.)
11

The shorter man forced everyone into the store’s bathroom.
(Id.) The kids in the store started running. (Id.) The shorter man
tried to fire the gun in the ceiling but the gun misfired. (Id. at
2018.) The perpetrators exited the store and Wright called the
police. (Id.) Wright gave the police a description of the men and
the gun that was taken. (Id. at 2018-19.)
The night of the L & G Grocery robbery, Eddie Wright talked to
the police and told them about the Lillie & Eddie’s Grocery robbery
and the .45 caliber gun that was taken. (Id. at 2020; see ECF
No. 44-1 at 3.) The police asked Wright if he knew the serial
number of the gun. (ECF No. 21-3 at 2020.) Michael Wright, Eddie
Wright’s son, gave the police the box for the pistol and some spent
“hulls” (i.e., shell casings). (Id. at 2019-21; see ECF No. 44-1 at
6.)
Eddie Wright viewed a lineup on August 31, 1981, at 2:55 p.m.
(ECF No. 44-12.) Wright stated that he was unable to identify
anyone in the lineup. (ECF No. 44-32 at 1.) Wright further stated
that the person at position number one in the lineup, Petitioner,
and the person at number two in the lineup resembled one of
the robbers, but both looked a “little lighter” than the robber.
(Id.; see ECF No. 21-3 at 2028-29.)8 At trial, Wright identified
Petitioner as the taller perpetrator (ECF No. 21-3 at 2024), and
McKay as the shorter perpetrator (id. at 2022).

8

Wright identified McKay in the lineup at 2:43 p.m. on the same day.
(ECF No. 44-14.)

12

Wright also identified a .32 caliber gun presented at trial as
one resembling the gun that the taller man held during the robbery.
(ECF No. 44-32 at 1-2.) At trial, Wright testified that the gun the
taller man was holding did not have a trigger guard. (ECF No. 21-3
at 2025.)
2.

Testimony of Darrell Perry

Darrell Perry, sixteen years old at the time of the L & G
Grocery trial, testified about the Lillie & Eddie’s Grocery robbery
that occurred on August 18, 1981. Perry was a witness to the
robbery. Perry testified that he was in Lillie & Eddie’s Grocery at
about 9:00 p.m. on August 18, 1981, when two men walked in. (ECF
No. 21-4 at 2082-83.) Perry stated that the taller man walked by
the meat counter and tried “to hide his face [so] nobody would see
him.” (Id. at 2085.) The shorter man said “Stick up” and jumped
over the counter. (Id.) Perry was next to the door, and the taller
man reached across him with the gun. (Id. at 2085-86.) The taller
man would hide the gun between his own legs when people came into
the store and would then push the people to the side after they
entered. (Id. at 2086-87.)
On August 26, 1982, Perry and witness Billy Smith viewed
photographs at the district attorney’s office. (Id. at 2116-17,
2132.) Perry picked Petitioner’s photograph from the group as one
of the perpetrators and, at trial, identified Petitioner as the
taller robber at Lillie & Eddie’s Grocery on August 18, 1981. (Id.
at 2116-18, 2140.) Perry did not identify McKay. (Id. at 2121.)

13

3.

Testimony of Gino White

Gino White, fourteen years old at the time of the L & G
Grocery trial, testified about the Lillie & Eddie’s Grocery robbery
that occurred on August 18, 1981. White was a witness to the
robbery. (Id. at 2142-43.) White testified that he was standing by
the taller robber who was holding a short pistol that he described
as not having a “handle on it where you stick your finger through
[] and pull the trigger.” (Id. at 2145, 2165.) On August 25, 1982,
White viewed photographs at the district attorney’s office. (Id. at
2147-48.) White identified Petitioner as the taller robber in one
of the photographs based on a cut on the taller robber’s eye.
(Id.); see Sample, 2010 WL 2384833, at *17. At trial, White
identified both Petitioner and McKay as the Lillie & Eddie’s
Grocery robbers. (Id. at 2149.)
4.

Testimony of Michael Winfrey

Mike Winfrey testified about the Lillie & Eddie’s Grocery
robbery that occurred on August 18, 1981. On the night of the
Lillie & Eddie’s Grocery robbery, Winfrey was standing in front of
Lillie & Eddie’s Grocery near the gas pump. (Id. at 2170-71.)
Winfrey testified that he saw two men come out of the store and run
to the car after the robbery. (Id. at 2171.) Winfrey identified a
photograph of a two-tone blue Mercury with Cragar rims and a little
“white antenna on the back” as the car parked behind the store to

14

which the robbers ran. (Id. at 2171-72, 2174-75.)9 He provided a
description of the car to the police. (Id. at 2175.)
Winfrey testified that he saw the taller robber’s face. (Id.
at 2174.) On August 27, 1982, Winfrey identified Petitioner, based
on a photograph, as one of the robbers. (Id. at 2175-76.) Winfrey
identified Petitioner in court at the L & G Grocery trial as one of
the Lillie & Eddie’s Grocery robbers. (Id. at 2176.)10 Winfrey did
not identify McKay as one of the robbers.
5.

Non-Testifying Witnesses

Other witnesses to the Lillie & Eddie’s Grocery robbery who
did not testify at the L & G Grocery trial include Willie Everett,11
Berry Chambers, Billy Smith, and Johnny Lynn Smith. (ECF No. 44-1
at 11, 13, 15-18.)
6.

Suspects in the Lillie & Eddie’s Grocery Robbery

Petitioner requests information regarding certain individuals
who were considered suspects in the Lillie & Eddie’s Grocery
robbery including Sammy House and Marvin Phillips. (See ECF No. 43
at 9.)

9

Winfrey testified that before the robbery, the car was parked across
the street. (ECF No. 21-4 at 2183.)
10
On cross-examination, Petitioner’s counsel tried to imply that
Winfrey’s identification was based on Winfrey seeing Petitioner at a motion
hearing prior to trial; Winfrey testified he did not see Petitioner’s face at the
hearing and that his identification was based solely on seeing Petitioner at the
store. (ECF No. 21-4 at 2184-86.)
11
Everett now goes by the name Eddie Willie Hunt. (See ECF No. 44-28,
¶ 2.) He was across the street at the time of the Lillie & Eddie’s Grocery
robbery and told the police about “three black dudes in a blue Mercury, 1973 or
‘74" who were involved in the Lillie & Eddie’s Grocery robbery. Sample, 2010 WL
2384833, at *18; (see ECF No. 44-46). Everett identified a car that reportedly
belonged to Marvin Phillips. Sample, 2010 WL 2384833, at *5; (see ECF No. 44-46
at 1-2).

15

Sammy House was identified in a supplemental police report as
a known hold-up man who Eddie Wright was told may have been
involved in the Lillie & Eddie’s Grocery robbery.12 (See ECF No. 4430 at 4.) Marvin Phillips’ car, a blue Chevy with tinted windows,
was identified by Eddie Wright as possibly being associated with
the L & E Grocery robbery. (Id.) The police investigated Marvin
Phillips in relation to the Lillie & Eddie’s Grocery robbery. (Id.
at 6-7.) Willie Everett also noted a car similar to Phillips’s car
was present on the night of the robbery. (ECF No. 44-46 at 1-2.)
C.

L & G Grocery Robbery and Murders, August 29, 1981
Grover Jones owned the L & G Grocery where two individuals,

including his nephew, were shot and killed during an armed robbery
on August 29, 1981. Sample, 2010 WL 2384833, at *16. The L & G
Grocery was located at 1069 North Watkins Street, across the street
from Lillie & Eddie’s Grocery. Id. at *1.
1.

Testimony of Melvin Wallace

Melvin Wallace testified about the August 29, 1981, L & G
Grocery robbery and murders. Wallace was a witness to, and victim
of, the L & G Grocery incident. Wallace testified that at about
11:20 p.m. on August 29, 1981, he went to the L & G Grocery to
purchase barbecue sandwiches on his way home from work. (ECF No.
21-2 at 1864-65.) There were five people standing inside the store
when Wallace arrived. (Id. at 1865-66.) Benjamin Cooke went to the
back of the store to make the sandwiches for Wallace. (Id. at

12

Petitioner raised issues regarding the disclosure of information
regarding House in the post-conviction proceedings. Sample, 2010 WL 2384833, at
*3, *5-6, *17-18.

16

1866.) Wallace made an in-court identification of Petitioner and
McKay as being present at the robbery. (Id. at 1866-68.) Wallace
stated that McKay had “a quart of 45 beer and was mumbling to
himself” and that he thought McKay was just another drunk. (Id. at
1867-68.) When Wallace turned around to look at the front of the
store, he saw McKay behind the counter pointing a gun at Cooke’s
head. (Id. at 1868-70.)
After Wallace realized that there was a robbery taking place,
he ran for the front door. (Id. at 1870.) He got half the distance
to the door before Petitioner said, “Halt, nigger. I’ll shoot.”
(Id.) Petitioner then shot him in the thigh, and Wallace spun
around and fell. (Id. at 1871.) Wallace attempted to play dead.
(Id. at 1871-72.) The bullet hit a nerve in his thigh, however, and
his leg was shaking. (Id. at 1872.)
Wallace heard Petitioner say twice, “I ought to kill all you
son-of-a-bitches.” (Id. at 1871.) Petitioner asked Steve Jones, the
other clerk, for all the money. (Id.) Wallace heard Jones say,
“Man, I gave you everything I had.” (Id.) Petitioner said, “Give me
everything below and behind the counter.” (Id.) Finally, Petitioner
said, “Kill every son-of-a-bitch in here,” and Petitioner and McKay
began shooting. (Id.)
After McKay and Petitioner shot Cooke and Jones, Petitioner
walked over to Wallace and said, “This nigger ain’t dead.” (Id. at
1872.) Wallace was lying face-down on the floor when Petitioner
shot him in the back. (Id.) Wallace testified that Petitioner “put
the pistol to my head, and it click, click, click. It didn’t go

17

off.” (Id.) Wallace wrestled with Petitioner, and the gun went off
past his head. (Id.) Wallace passed out, and when he awoke, he
heard someone say, “Let’s get the hell out of here.” (Id. at 1872,
1874.) Wallace testified that he saw McKay pull Benjamin Cooke up
and shoot him in the head prior to passing out. (Id. at 1873.) He
did not see Steve Jones being shot. (Id. at 1873-74.)
Wallace lay on the floor for a period of time before moving
around the corner to conceal himself behind some boxes. (Id. at
1874.) He remained there until the police arrived. (Id.) Wallace
gave the police a general description of what he had witnessed
before he was taken to the hospital. (Id. at 1875.) At the
hospital, doctors removed one bullet from Wallace’s thigh. (Id. at
1875-76.) The other bullet remained in Wallace’s back. (Id. at
1876.)
On August 31, 1981, Wallace viewed two lineups. (Id. at 1877.)
At the first lineup at 2:43 p.m., Wallace identified the person at
position four, McKay, as one of the perpetrators, and tentatively
identified the person at position six, Ralph Franklin, as the other
perpetrator. (ECF No. 44-14; ECF No. 21-2 at 1878-80, 1883-84.) At
2:55 p.m., Wallace viewed a second lineup. (See ECF No. 44-12.)
Petitioner was the person at the first position in the second
lineup, but Wallace did not identify Petitioner as one of the
perpetrators. (Id.; ECF No. 21-2 at 1881-82.)
Wallace identified Petitioner for the first time in court
during the L & G Grocery trial. (See ECF No. 21-2 at 1867-68, 188485.) Wallace testified that he recognized Petitioner in the second

18

lineup, but he did not write it down because he was sick and taking
medication. (Id. at 1885-86.)
2.

Testimony of Charles Rice

Charles Rice testified at trial about the August 29, 1981,
L & G Grocery robbery and murders. Rice was seventeen years old
when he testified. (ECF No. 21-4 at 2197.) Rice testified that on
the night of August 29, 1981, he went to the L & G Grocery to get
a quart of beer and a pack of cigarettes. (ECF No. 21-4 at 2197.)
After getting the cigarettes, Rice left the L & G Grocery and
walked to the street corner. (Id. at 2198.) Rice returned to the
L & G Grocery after hearing a noise that sounded like firecrackers.
(Id. at 2199.) When Rice returned to the L & G Grocery he looked
through the glass door into the store. (Id.) Rice testified that he
saw McKay holding Steve Jones by the collar with a pistol pressed
against Jones’ head. (Id. at 2200-01, 2213.) Rice testified that he
did not have a good view of Benjamin Cooke. (Id. at 2201-02.) Rice
then ran home. (Id. at 2203.) Rice returned to the store later that
night with his mother’s boyfriend. (Id.) He did not speak to the
police at that time because he “didn’t want to get involved right
then.” (Id.)
Rice testified that the police came to talk to him on the
morning of August 30, 1981. (Id.) His mother encouraged him to tell
the police what he had witnessed the night before at the L & G
Grocery. (Id. at 2204.) On August 31, 1981, Rice viewed two
photographic lineups at police headquarters. (Id.) At the first
lineup, Rice identified the person at position number seven,

19

Charles Edward Malone,13 as one of the perpetrators. (See ECF No.
44-26.) Rice testified at the L & G Grocery trial that at the time
of the first lineup, he was not positive that the person he
identified was the perpetrator. (ECF No. 21-4 at 2208.) Rice
further testified that he identified the person at position number
seven in the lineup because that person closely resembled McKay,
who Rice identified in court at the L & G Grocery trial as one of
the perpetrators. (Id. at 2209-10.) At the second lineup, Rice
identified the person at position number five as the person who was
holding Steve Jones by the collar. (ECF No. 44-48 at 3.) At trial,
Rice testified that he identified the person at position number
five as one of the perpetrators and identified that person in court
as Petitioner. (ECF No. 21-4 at 2210-13; see ECF No. 44-26.)
3.

Testimony of Grover Jones

Grover Jones, uncle of Steve Jones and owner of the L & G
Grocery, testified regarding the August 29, 1981, L & G Grocery
robbery and murders. Grover Jones was not a witness to the robbery
and murders. At trial, Grover Jones testified that Steve Jones had
been living with him and working in his store. (ECF No. 21-2 at
1784.) Grover Jones last saw Steve Jones and Benjamin Cooke at
about 8:00 or 9:00 p.m. on the night of August 29, 1981, when
Grover Jones left the store. (Id.

13

at 1785-86.) Grover Jones

At trial, this individual’s name is listed as Charles “Everett”
Malone. (See ECF No. 21-5 at 2301.) Charles Malone was in the car with Petitioner
and McKay when they were arrested. (See ECF No. 21-5 at 2305-06, 2310-11.) Malone
had a child with McKay’s sister Brenda. (Id. at 2321; ECF No. 44 at 2.) Malone
and Petitioner met for the first time the day they were arrested. (See ECF No.
21-5 at 2309; ECF No. 44 at 2.)

20

testified that he left approximately two hundred dollars in cash at
the store in a small brown bag. (Id. at 1788-89.)
Grover Jones testified that, on the night of the robbery, he
was notified that he had a phone call and returned to the store.
(Id. at 1789-90.) Upon arrival, the police questioned Grover Jones
about the crime. (Id. at 1790.) Grover Jones later discovered that
approximately six or seven hundred dollars were missing. (Id. at
1790-92.) Based on the description that police gave Grover Jones,
Jones told the police that the crime may have been committed by a
man named “Junebug”14 because they had trouble with him “in the
neighborhood for breaking in.” (Id. at 1810-12.)15
4.

Testimony of Charles Malone

Charles Malone testified about the August 29, 1981, L & G
Grocery robbery and murders. Malone was not a witness to the L & G
incident. Malone was arrested with Petitioner and McKay, but was
later released. (ECF No. 21-5 at 2322.) Malone testified at the
L & G Grocery trial about circumstances linking the Petitioner and
McKay to the crime. (Id. at 2301-14.) Malone testified that McKay
came over to his house flashing money and asked Malone to ride with

14
According to Petitioner, Leeaster McKay, Jr., aka “Junebug,” is Larry
McKay’s brother. (ECF No. 11 at 16.) Charles Malone told police that McKay had
a brother that they call “June Bug.” (ECF No. 44-11 at 3.)
15
A supplementary offense report dated August 30, 1981, written by
Sergeant D.R. Malone, stated that Grover Jones was asked if marijuana was sold
from the L & G Grocery based on the presence of two boxes of nickel bags in the
store. (ECF No. 44-30 at 2.) The report also stated that over the last year or
so, the police had served a warrant on the L & G Grocery and police found a
“considerable amount of marijuana in the meat coolers.” (Id. at 3.) Grover Jones
stated that they just sold nickel bags and not marijuana. (Id.) The report opined
that Grover Jones was not telling police all he knew about the drug activity and
money at the store. (Id.) In the post-conviction proceedings, Petitioner alleged
that the State failed to produce this document. Sample, 2010 WL 2384833, at *3.

21

him. (Id. at 2302.) While in the car, McKay told Malone to look at
an article in the newspaper about the L & G Grocery robbery, and
McKay said, “Check this out . . . . Man, I seen so much blood last
night it wasn’t funny.” (Id. at 2304-06.) They then went to the bus
station, and McKay asked Malone to buy him a bus ticket to Chicago
under the name “Larry Graham.” (Id. at 2306-07.) After leaving the
bus station they drove to a corner grocery store on Danny Thomas
Boulevard and were subsequently arrested. (Id. at 2308, 2310-11.)
5.

Testimony Regarding Petitioner’s Arrest

Patrolman A.J. Walton testified about Petitioner’s arrest on
August 30, 1981. (ECF No. 21-5 at 2245-76.) Walton testified that
a broadcast went out on August 30, 1981, for a “blue-over-blue
Mercury with chrome wheels, white CB antenna, occupied by three
male blacks” related to the robbery and double murder at the L & G
Grocery. (Id. at 2246-47.)16 Walton and his partner observed a
“blue-over-blue

Mercury

with

chrome

wheels

and

the

white

CB

antenna, occupied by three male blacks” on Danny Thomas Boulevard
and pulled into the parking lot behind them. (Id. at 2247) The
three men looked at the officers and exited the parking lot. (Id.)
The officers began following the vehicle and called for backup.
(Id. at 2247-48.) The car pulled into a private driveway on Georgia
Avenue. (Id. at 2248.)

16
Eddie Wright told police that the people responsible for the robbery
were driving a dark blue Mercury Marquis, and a Mercury Marquis registered to
Petitioner with “a half black vinyl top, over[ ]dark blue” was spotted in the
area. (ECF No. 44-1 at 3-4.)

22

The officers approached the car with their guns drawn and
ordered the suspects to exit the vehicle and put their hands on the
brick building near the car. (Id. at 2248-49.) McKay and Malone got
out of the car and put their hands on the wall. (Id. at 2249,
2264.) Petitioner “gave [the officers] a little trouble.” (Id. at
2249.) He said, “I haven’t did anything, man . . . . I haven’t did
anything. What you want? What you want us to do?” (Id.) Walton
grabbed Petitioner and put him on the wall. (Id.) Williams searched
the suspects and found a loaded .45 caliber automatic pistol,
cocked with one round in the chamber, on McKay. (Id. at 2249-50.)
There was a .32 caliber revolver under the armrest of the car. (Id.
at 2250.) Eight .45 caliber rounds, one hollow point .45 caliber
round, and keys were found in the car. (Id. at 2256.)
6.

Non-Testifying Witnesses

Other witnesses to the L & G Grocery robbery who did not
testify at the L & G Grocery trial include Percy Lee Jeffries,
Jenny Jeffries, and Billy Ray Vaughn. (ECF No. 44-30 at 1-2.)
7.

Suspects in the L & G Grocery Robbery and Murders

James D. Coleman and Derrick Tolliver were, at one point,
considered suspects in the L & G Grocery robbery and murders
because they were involved in an armed robbery that occurred
approximately five hours after the robbery and shootings at the
L & G Grocery and approximately two miles away from the L & G
Grocery. (ECF No. 44-30 at 5.) Charles Rice, see supra pp. 19-20,
told police that Wilbur White (also known as “Big White”) was in
front of the L & G Grocery using a pay phone at the time the

23

robbery and murders occurred at the L & G Grocery. (See ECF No. 4413 at 3; see also ECF No. 44-48 at 2 (“ Q. Did you see anyone else
outside the store? A. It was some man standing up there in the
phone booth but I really don’t know his name.”).)
V. RELEVANT CLAIMS
Petitioner seeks discovery to support the following Brady17 and
false testimony claims:
[A.]1.
The State withheld evidence that key State
witness, Melvin Wallace, Jr., did not identify Michael
Sample as the perpetrator prior to trial and, relatedly,
the State knowingly put on false evidence at trial when
it allowed Melvin Wallace to testify that he was
“positive” about Michael Sample’s identity. The State
also withheld the fact that it pressured and/or cajoled
and/or coached Melvin Wallace into testifying contrary to
his initial statement to police . . . .
. . . .
[A.]2.
The State withheld material, exculpatory
evidence demonstrating that Michael Sample was not the
person who committed the offense. The State also had
evidence that witnesses identified and named other
suspects, these suspects included, but were not limited
to: Sammy House, Wilbur White (aka Big White), Leeaster
McKay, Jr. (aka Junebug, aka Leester McKay, Jr.), Marvin
Phillips, James D. Coleman, Derrick Tolliver, Charles
Malone, Ralph Franklin, and Tommy Lee Bradford). The
exculpatory evidence includes, but is not limited to, the
following:
. . . .
l.
Ralph Franklin, Larry McKay’s cousin, was
another suspect. The police knew that witness
Melvin Wallace identified Ralph Franklin as
one of the two perpetrators at a line-up
immediately after the L & G offense. Larry
McKay was the other perpetrator that Mr.
Wallace identified that day. Conversely,
Melvin Wallace did not select Michael Sample
in a line-up that same day, despite the fact

17

Brady v. Maryland, 373 U.S. 83 (1963).

24

that Mr. Sample was an option. The State never
informed the defense despite the fact that
this
evidence
was
highly
exculpatory.
Similarly, Annie Low, owner of Low’s grocery
identified Ralph Franklin and Larry McKay in a
line-up as responsible for the robbery at her
store on August 29, 1981 – just hours before
the incident at L & G.
m.
Tommy Lee Bradford was another suspect.
The State had information contained in the
Low’s Robbery Supplementary Offense Report #2,
that a witness to the August 29, 1981 robbery
at Low’s grocery identified an individual
named Tommy Lee Bradford as one of the two
perpetrators responsible for that robbery.
Given the fact that Low’s grocery was robbed
mere hours before nearby L & G grocery and the
Low’s robbery shared the same modus operandi
as the L & G incident, this information was
exculpatory.
. . . .
[A.]3.
The State withheld material, exculpatory
information that the L & G Grocery was engaged in selling
drugs, which demonstrates that other persons had motives
to commit the offense and reflects adversely upon the
tenuous credibility of the State’s witnesses associated
with L & G. The Memphis Police Department, Shelby County
Sheriff
Department,
and/or
Federal
Bureau
of
Investigation and/or drug task force knew of the drug
dealing and the involvement of L & G.
. . . .
[A.]4.
The State also withheld exculpatory evidence
relating to the testimony of Charles Rice, a 16-year-old
who had allegedly gone to the L & G grocery to buy beer
and cigarettes. Rice’s testimony was false and the State
knowingly presented his false testimony. In fact, Charles
Rice later reported that he felt pressured to talk to the
police and cooperate. The State withheld from the defense
that it pressured and/or cajoled and/or coached Charles
Rice into testifying contrary to his initial statements
to police. This is supported by the fact that prior to
trial, Rice told police that he could really only see one
perpetrator, Larry McKay, and he couldn’t really see
anything else because during the crime, he was standing
outside the store. This is also supported by the fact
that Melvin Wallace told police that before the shooting,

25

he noticed one other customer in the store – “a kid” –
who left before the shooting started. . . .
. . . .
[A.]5.
The State had in its possession documents
demonstrating that Charles Rice’s identifications of
Michael Sample at a line-up and at trial were misleading,
inaccurate, and false . . . .
. . . .
[A.]6.
The State withheld material exculpatory
evidence and/or permitted false testimony concerning the
robbery at Lillie & Eddie’s store on August 18, 1981. The
State falsely alleged that Mr. Sample was involved in
this earlier robbery, and then, at trial, relied upon
that alleged involvement to claim that Mr. Sample was one
of the offenders in the L & G offense. In particular, at
trial, Eddie Wright, the owner of Lillie & Eddie’s,
testified that Michael Sample had indeed robbed his
store. Tr. 2024. Mr. Sample was never convicted of the
robbery that occurred at Lillie & Eddie’s. The State
permitted this testimony while having in its possession,
material exculpatory evidence . . . .
. . . .
[A.]7.
The State withheld information from the defense
that Lillie & Eddie’s grocery was a well-known place to
purchase illicit drugs, specifically preludes, quaaludes,
and other pills. The Memphis Police Department, Shelby
County Sheriff Department, and/or Federal Bureau of
Investigation and/or drug task force knew of Lillie &
Eddie’s involvement in drug dealing. Eddie Wright and
Grover Jones, of L & G grocery, knew of each other’s
illicit businesses. Eddie Wright sometimes hired a
neighborhood person to work security armed with a gun at
Lillie & Eddie’s due to the high volume o[f] drugs and
money inside. Members of the Memphis Police Department
were known to frequent L & G’s grocery in order to accept
bribes in the form of cash and/or drugs in exchange for
allowing the drug dealing enterprises at both L & G and
Lillie & Eddie’s to continue. The court can impute police
officer knowledge of such bribes to the prosecution and
thus, such evidence is considered Brady material. Arnold
v. McNeil, 622 F. Supp. 2d 1294 (M.D. Fla. 2009), aff’d
595 F.3d 1324 (11th Cir. 2010) (habeas relief granted due
to State’s failure to disclose evidence of police
officer’s corruption, even though prosecutor did not have
knowledge of corruption, because such evidence is
considered Brady [evidence]).
26

. . . .
[A.]8.
The State also withheld evidence concerning
robberies on August 7, 1981 and August 29, 1981 at Low’s
Grocery, both of which involved the same modus operandi
of the L & G incident, and which involved persons other
than Michael Sample. Moreover, the August 29, 1981
robbery at Low’s occurred just hours before the incident
at L & G’s grocery. . . .
. . . .
[A.]9.
The State withheld evidence of consideration
given to witnesses, such as failure to charge them with
criminal offenses, in exchange for their testimony
against Michael Sample at trial. Witnesses that received
consideration in exchange for their testimony included,
but are not limited to Grover Jones, Charles Rice, Willie
Everett, Gino White, Eddie Wright, and Mike Winfrey.
[A.]10.
Michael Sample incorporates all allegations in
paragraphs A.1-A.9. The prosecution presented false
testimony and withheld all of this exculpatory evidence
which, when considered cumulatively, were [pivotal] to
Petitioner’s convictions and death sentences. The
subsequent state court denial of Mr. Sample’s claims for
relief was contrary to and an unreasonable application of
clearly established federal law.
(ECF No. 11 at 7-30.)
Petitioner

seeks

discovery

to

support

the

following

process claims:
[B.]1.
The trial court failed to sever Michael
Sample’s case from Larry McKay’s case where there was
obvious evidence of McKay’s culpability and not Mr.
Sample’s. This failure prejudiced Michael Sample because
the State imputed information, including witness
statements, about Larry McKay and the .45 caliber
automatic gun to Michael Sample, where Michael Sample did
not have anything to do with the .45 caliber automatic
gun and its use in the crime.
[B.]2.
The trial court violated Michael Sample’s due
process rights and principles of fundamental fairness
when it allowed the State to introduce evidence of the
robbery at Lillie & Eddie’s grocery where Mr. Sample did
not commit that robbery, where that robbery was only
potentially relevant to McKay’s identity, and where
27

due

witnesses never identified Mr. Sample as involved in that
robbery. This information was not only not relevant to
Mr. Sample’s guilt, it was not admissible for any other
reason, even to prove identity.
[B.]3.
Relatedly, Michael Sample was prejudiced and
his due process rights were violated by being required to
[defend] against the robbery that occurred at Lillie &
Eddie’s when the State did not include that crime and the
related offenses in the indictment.
(Id. at 30-31.)
Petitioner seeks discovery to support the following claims of
ineffective assistance of counsel related to the investigation and
preparation of his case:
[C.]2.
Stanley Fink and Mark Saripkin failed to
assemble an adequate defense team to represent Mr.
Sample. If Messrs. Fink and Saripkin had assembled an
adequate defense team, there is a reasonable probability
that the jury would not have convicted Michael Sample of
felony murder and/or sentenced him to death. A defense
team could have investigated and prepared the issues that
were crucial to defending against the State’s charges and
convincing a jury that a punishment less than death was
appropriate. It includes, but is not limited to, Stanley
Fink and Mark Saripkin’s:
a.

Failure to interview and investigate
critical witnesses from the incident at L
& G grocery, the robbery at Lillie &
Eddie’s grocery, and the robberies at
Low’s store. Relatedly, failure to
investigate other suspects that witnesses
identified, including, but not limited
to: Sammy House, Wilbur White (aka Big
White), Leeaster McKay, Jr. (aka Junebug,
aka Leester McKay, Jr.), Marvin Phillips,
James D. Coleman, Derrick Tolliver,
Charles Malone, Ralph Franklin, and Tommy
Lee Bradfor[].

. . . .
[C.]5.
Michael
Sample’s
attorneys
failed
to
investigate the circumstances of Steve Jones and Benjamin
Cooke’s deaths, including, but not limited to collecting
and evaluating ballistic and fingerprint evidence, taking
photos of the crime scene, consulting with a crime scene
28

reconstructionist, a ballistic expert, a gang/urban
sociology expert, a forensic pathologist, and [an]
investigator devoted to guilt/innocence investigation. .
. .
. . . .
[C.]6.
Michael
Sample’s
attorneys
failed
to
investigate the August 18, 1981 robbery at Lillie’s &
Eddie’s store. Investigating that incident would have
revealed that Mr. Sample was not responsible for that
crime, that others were responsible for the robbery at
Lillie & Eddie’s, and that the other people responsible
for the robbery at Lillie & Eddie’s were likely
responsible for the homicides and robbery at L & G.
. . . .
c.

Had counsel investigated the crime at
Lillie & Eddie’s they also would have
discovered that it was a well known
location to purchase illicit drugs. Thus,
others had motives to rob the grocery and
counsel would have had information to
impeach witnesses that testified against
Mr. Sample at trial.

[C.]7.
Michael
Sample’s
attorneys
failed
to
investigate the August 7, 1981 and August 29, 1981
robberies that occurred at Low’s grocery. Investigating
those incidents would have revealed that Mr. Sample was
not responsible for those crimes, that others were
responsible, and that the other people responsible for
the robberies at Low’s were likely responsible for the
homicides and robbery at L & G, particularly because the
August 29, 1981 robbery at Low’s occurred mere hours
before the incident at L & G. . . .
(Id. at 32-38.)
Petitioner seeks discovery to support the following claims of
ineffective assistance of counsel related to his counsel’s defense
at the guilt-innocence stage of trial:
[D.]8.
Failure to challenge the State’s presentation
of evidence about the August 18, 1981 robbery at Lillie
& Eddie’s and highlight the fact that no one identified
Michael Sample as the perpetrator for that crime.
Moreover counsel failed to challenge the State’s claim
that only two people, Larry McKay and Michael Sample,
29

were involved in the robbery, when witnesses to that
incident reported to the police that five black men were
involved.
. . . .
[D.]11.
Michael Sample’s attorneys failed to properly
and effectively cross-examine the State’s witnesses to
demonstrate Mr. Sample’s innocence, including ballistics,
eyewitness identification, and other experts, including,
but not limited to Dr. Charles Harlan, the medical
expert.
[D.]12.
Michael Sample’s attorneys failed to demand
that the court determine State witness, Charles Rice’s
competency to testify and/or independently determine
Rice’s competency to understand what was transpiring in
the courtroom.
(Id. at 43-45.)
Petitioner seeks discovery to support the following claims of
trial court error:
[G.]3.
In violation of Mr. Sample’s due process
rights, the trial court improperly denied Mr. Sample’s
motion for severance and tried Petitioner alongside
co-defendant Larry McKay. Severance was necessary to
preserve Mr. Sample’s right to a fair and reliable trial
and sentencing because there was clear evidence of Mr.
McKay’s guilt, not Mr. Sample’s. . . .
. . . .
[G.]20.
The trial court improperly allowed witness Mike
Winfrey to identify Mr. Sample in court (Tr. 2176)
despite the fact that he had previously attended a
preliminary hearing for the Eddie & Lillie’s robbery and
saw Mr. Sample in court (Tr. 2185). Thus, Mr. Winfrey’s
in-court identification of Mr. Sample did not reflect the
fact that he recognized Mr. Sample as being involved in
the Eddie & Lillie’s robbery on August 18, 1981, it was
based on the fact that he saw him in court in October
1981.
[G.]21.
The trial court improperly allowed witness Gino
White to identify Mr. Sample in court (Tr. 2151) despite
the fact that he had previously looked into the courtroom
and observed Mr. Sample (Id.). Thus, Mr. White’s in-court
identification of Mr. Sample did not reflect the fact
that he recognized him from being [involved] in the
30

robbery at Eddie & Lillie’s on August 18, 1981, but it
was based on the fact that Mr. White observed Mr. Sample
[in court] immediately before testifying.
[G.]22.
The trial court failed to allow a competency
evaluation of witness Charles Rice where his competency
to testify was clearly at issue. Tr. 2187-91.
. . . .
[G.]26.
The trial court violated Mr. Sample’s due
process rights to a fair trial when it allowed evidence
of the August 18, 1981 robbery of Lillie and Eddie’s
Grocery (1062 North Watkins) into the record at Mr.
Sample’s
trial
when
such
evidence
was
unduly
inflammatory, irrelevant, and prejudicial and misleading
about Mr. Sample’s culpability for the L & G robbery.
Moreover, Mr. Sample was never convicted of the Lillie &
Eddie’s robbery.
(Id. at 60-66.)
Petitioner seeks discovery to support the following claim of
prosecutorial misconduct:
[H.]2.
During the guilt-innocence phase of Michael
Sample’s trial the prosecution repeatedly misled the jury
to believe that Michael Sample was involved in a prior
unrelated
robbery.
Specifically,
the
prosecution
improperly introduced evidence of the August 18, 1981
robbery at Lillie & Eddie’s Grocery in order to prove
guilt of first-degree murder in this case. The
prosecution’s introduction of the stolen gun from the
prior robbery (Tr. 1967) and testimony from witnesses,
including highly prejudicial details from the prior
robbery (e.g. Tr. 2012 et seq., 2022; 2082 et seq; 2171
et seq.) unduly prejudiced Michael Sample. Moreover, the
introduction of such evidence resulted in an unreliable
identification of Michael Sample and violated his due
process rights, especially where the prosecution stated
that they wanted to present evidence to prove identity.
(Id. at 68.)
Petitioner seeks discovery to support his claim of actual
innocence:
[K.]14.
Michael
Sample’s
death
sentence
is
unconstitutional because he is actually innocent of the
crimes for which he was convicted.
31

(Id. at 83.)
VI. STANDARD
Habeas

petitioners

do

not

have

an

automatic

right

to

discovery. See Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir.
2009) (quoting Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.
2001)). Discovery in habeas cases is controlled by Rule 6(a) of the
Rules Governing Section 2254 Cases in the United States District
Courts (“Habeas Rules”), which states: “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.”
See Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir. 2009) (“For
good cause shown, the district court has the discretion to permit
discovery in a habeas proceeding . . . .”). Habeas Rule 6 is meant
to be “consistent” with the Supreme Court’s decision in Harris v.
Nelson, 394 U.S. 286 (1969). Bracy v. Gramley, 520 U.S. 899, 909
(1997). In Harris, the Court stated:
[W]here specific allegations before the court show reason
to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is
confined illegally and is therefore entitled to relief,
it is the duty of the court to provide the necessary
facilities and procedures for an adequate inquiry.
Harris, 394 U.S. at 300.
“Good cause” is not demonstrated by “bald assertions” or
“conclusory allegations.” Stanford, 266 F.3d at 460; see also
Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Rather, the
requested discovery must be materially related to claims raised in
the habeas petition and likely to “resolve any factual disputes
that could entitle [the petitioner] to relief.” Williams, 380 F.3d

32

at 975 (quoting Stanford, 266 F.3d at 460) (internal quotation
marks omitted); see Bracy, 520 U.S. at 908-09 (allowing discovery
relevant to “specific allegations” of fact in support of a claim of
constitutional error); Post v. Bradshaw, 621 F.3d 406, 425 (6th
Cir. 2010) (stating that discovery provides petitioner “that extra
evidence he [] needs to prove or strengthen his case”); Braden v.
Bagley, No. 2:04-CV-842, 2007 WL 1026454, at *2 (S.D. Ohio Mar. 30,
2007) (“Rule 6’s ‘good cause’ standard requires petitioner to at
least attempt to identify what he expects to uncover through his
discovery

requests.”).18

Although

“more

liberal

discovery

is

appropriate in capital [habeas] cases,” Payne v. Bell, 89 F. Supp.
2d 967, 971 (W.D. Tenn. 2000) (citing Lockett v. Ohio, 438 U.S.
586, 604 (1978)), Rule 6(a) does not permit a “fishing expedition
masquerading as discovery,” Stanford, 266 F.3d at 460.
Having
Petitioner’s
following

determined
discovery

discovery

the

applicable

request,

issues

the

raised

by

standards

Court

will

the

State:

related
address
(1)

to
the

whether

Petitioner is entitled to discovery on claims not exhausted in
state court because those claims are procedurally defaulted; (2)
whether Petitioner is entitled to discovery of information that

18

“The Sixth Circuit has not determined whether § 2254(e)(2) applies
to motions for discovery.” Hill v. Anderson, 4:96CV0795, 2010 WL 5178699, at *8
(N.D. Ohio Dec. 14, 2010). A petitioner may show good cause under Habeas Rule 6
without meeting the higher standard for an evidentiary hearing in 28 U.S.C.
§ 2254(e)(2). Payne v. Bell, 89 F. Supp. 2d 967, 970 (W.D. Tenn. 2000); see
Braden, 2007 WL 1026454, at *6 (distinguishing discovery from factual development
under § 2254(e)(2)); see also Simmons v. Simpson, No. 3:07-CV-313-S, 2009 WL
4927679, at *5-6 (W.D. Ky. Feb. 12, 2009) (stating that this view is not
unanimously held by all federal courts).

33

would not have impacted the jury’s verdict; (3) whether Pinholster19
bars discovery on those claims that were adjudicated on the merits
by the state court.
A.

Discovery Related to Procedurally Defaulted Claims
Respondent argues that certain claims were not presented

to the highest available state court. As a result, Petitioner
is not entitled to discovery because those claims are procedurally
defaulted

and

Petitioner

did

not

exercise

due

diligence

to

obtain the factual predicate for these claims under 28 U.S.C.
§ 2254(e)(2). (See ECF No. 46 at 7-9, 12-15, 18-19, 22, 24, 27-29,
34, 36, 39-42, 45, 48-49, 52-54, 56-57, 59-69, 71.)
There is no clear entitlement to discovery in support of
procedurally defaulted habeas claims. See Williams, 380 F.3d at
975-76 (finding no error in district court’s denial of discovery on
procedurally defaulted ineffective assistance of counsel claims);
Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999) (finding no
error in district court’s denial of discovery on procedurally
defaulted due process claims); Calderon v. U.S. Dist. Court for the
N. Dist. of Ca., 98 F.3d 1102, 1106 (9th Cir. 1996) (issuing
mandamus to prevent discovery awarded by district court because
petitioner had not filed a habeas petition with exhausted claims or
sought such discovery in the state court); Sherman v. McDaniel, 333
F. Supp. 2d 960, 969-70 (D. Nev. 2004) (denying discovery on
unexhausted claims because “[t]o do so would tend to undermine the
exhaustion requirement, and the doctrine of federal-state comity on

19

Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

34

which it rests”). But see Conway v. Houk, No. 3:07-cv-345, 2009 WL
961199, at *3 (S.D. Ohio Apr. 8, 2009) (“So long as the procedural
default defense has not been adjudicated, its pleading does not
provide

a

basis

to

deny

discovery.”);

Hutton

v.

Mitchell,

No. 1:05-CV-2391, 2008 WL 4283318, at *2 (N.D. Ohio Sept. 16, 2008)
(noting

that

allegations

of

procedural

default

will

not

automatically bar discovery). However, “a habeas petitioner may use
a Habeas Rule 6 discovery motion to obtain evidence relevant to
excusing

procedural

default.”

Payne,

89

F.

Supp.

2d

at

974

(granting discovery motion in support of a presumptively defaulted
claim because the motion sought to discover evidence which would
allow the petitioner to obtain a factual basis to excuse default,
his “actual innocence”); see Braden, 2007 WL 1026454, at *10
(granting the deposition of a mitigation specialist where the
request was reasonably calculated to lead to evidence that could
demonstrate a justification for excusing the apparent default of
the petitioner’s claim).
Since procedural default does not automatically bar discovery
in habeas cases, discovery is allowed in this case if it would lead
to evidence that could excuse the apparent procedural default of
Petitioner’s claims.
B.

Impact on Jury Verdict
Respondent argues that Petitioner is not entitled to discovery

if the information requested would not have an impact on the jury’s
verdict pursuant to 28 U.S.C. § 2254(e)(2)(B). (See ECF No. 46 at

35

7-9, 13-14, 16, 20, 23-24, 26-27, 29, 33, 35-36, 43, 46, 50, 53-54,
56, 58-59, 61-62, 64-66, 68, 70, 72.)
As stated above “good cause” is the appropriate standard for
Habeas Rule 6 discovery. The good cause standard is satisfied if
Petitioner is able to demonstrate that he may be entitled to relief
if the facts are fully developed, in other words, if the requested
discovery

could

yield

evidence

establishing

a

constitutional

violation, and if the requested information would resolve a factual
dispute that could entitle Petitioner to relief. See Williams, 380
F.3d at 976. Petitioner does not have to demonstrate that the
requested discovery would impact the verdict.
C.

Pinholster
Respondent

contends

that

Pinholster

bars

the

grant

of

discovery for Petitioner’s claims that were adjudicated on the
merits by the state court because habeas review is limited to the
record before the state court. (ECF No. 46 at 1-2, 6, 12, 32, 3536, 39, 48, 55, 60, 63, 68-71.) As a result, discovery would be
futile because the Court would be unable to use any new evidence in
conducting § 2254 habeas review. (Id. at 2.)
In Pinholster, the Supreme Court held that 28 U.S.C. § 2254,
as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), limits § 2254 habeas review to the “record that was
before the state court that adjudicated the claim on the merits.”
131 S. Ct. 1388, 1398 (2011). In so holding, the Supreme Court
stated that “[s]ection 2254(e) continues to have force” and that

36

“state prisoners may sometimes submit new evidence in federal
court.” Id. at 1401.20
Petitioner argues that Pinholster does not apply to the
discovery requests because the State withheld evidence during the
state court proceedings, and discovery was not previously available
to Petitioner. (ECF No. 48 at 9.) He asserts that a Pinholster bar
on

discovery

adjudication

would
of

mean

facts

that

the

underlying

a

State
federal

could
claim

thwart
simply

any
by

withholding the facts during the state-court proceedings. (Id. at
10.) Petitioner further contends that any new evidence discovered
would represent a new Brady claim. (Id.) Petitioner emphasizes the
importance of a cumulative review of evidence for Brady and false
testimony claims and argues that the state court has not conducted
a cumulative review in Petitioner’s case. (Id. at 12.) He contends
that the Court should grant discovery and consider all evidence on
de novo review. (Id. at 12-13.)
The
reasons.

Court

agrees

with

Petitioner

for

the

following

two

First, Pinholster “did not, strictly speaking, alter or

even speak to the standards governing [Rule 6] discovery.” Conway
v. Houk, No. 2:07-cv-947, 2011 WL 2119373, at *3 (S.D. Ohio May 26,
2011). Given the lack of direct guidance from the Supreme Court or
the Sixth Circuit on the breadth of Pinholster, see Williams v.
Houk, No. 4:06-cv-451, 2012 WL 6607008, at *4 (N.D. Ohio Dec. 18,

20

The Supreme Court also noted that “Justice Sotomayor’s hypothetical
involving new evidence of withheld exculpatory witness statements, may well
present a new claim.” Id. at 1401 n.10.

37

2012), the Court will follow the plain language of Pinholster and
limit its force to § 2254 habeas review.
Second, Pinholster’s restrictions should not be invoked at the
discovery phase where the petitioner is seeking discovery related
to potential Brady violations. See Jones v. Bagley, 696 F.3d 475,
486 n.4 (6th Cir. 2012) (stating that if Petitioner could establish
a Brady violation with the introduction of new evidence discovered
in the federal habeas proceedings, introduction of that evidence
would not violate Pinholster); see also Pinholster, 131 S. Ct. At
1401 n.10; 28 U.S.C. § 2254(e)(2)(A)(ii). The Court agrees with
Petitioner that allowing a Pinholster bar on discovery would mean
that the State could thwart any adjudication of facts underlying a
federal claim simply by withholding the facts during the statecourt proceedings.
VII. ANALYSIS
The

Court

will

address

Petitioner’s

specific

discovery

requests (“Requests A-I”) in turn.
A.

DA & MPD Records (“Request A”)
Petitioner seeks discovery of “all records from the Shelby

County District Attorney General’s Office [(“DA”)] and the Memphis
Police

Department

[(“MPD”)]

concerning

the

investigation,

prosecution, and post-conviction proceedings arising from the [L &
G Grocery robbery and murders] (1069 North Watkins in Memphis,
Tennessee 38107) on August 29, 1981,” including but not limited to
1.

Complete [DA] and [MPD] files;

2.

[A]ny investigation conducted on Leeaster McKay,
Jr., including any statements taken from him;
38

3.

[A]ny investigation conducted on Ralph Franklin,
including any statements taken from him;

4.

[A]ny investigative and forensic information
regarding the fingerprints that the MPD collected
at the crime scene, including comparisons and
results from those comparisons; and

5.

[T]he names and photographs that correspond to the
Bureau of Investigation numbers in the book of
photos that the MPD showed to Melvin Wallace at
Baptist Hospital on August 30, 1981.

(ECF No. 43 at 1-2; ECF No. 44 at 8-9.)
Petitioner argues that he has good cause for discovery of the
complete DA and MPD files for the investigation, prosecution, and
post-conviction

proceedings

related

to

the

August

29,

1981,

L & G Grocery robbery and murders because these records are
relevant to his Brady claims (see Am. Pet. Claims A.1-10, ECF No.
11, at 7-30) and false testimony claims (see Am. Pet. Claims A.1,
A.4-6, A.10, ECF No. 11, at 7, 21-27, 30). (ECF No. 44 at 5-6, 8.)
Petitioner asserts that his efforts to obtain this discovery
without a court order were unsuccessful. (Id. at 6.) He contends
that these records will assist him in proving Claim A.2, that the
State withheld evidence demonstrating that Petitioner was not the
person who committed the offense and that the State had evidence
that its witnesses identified and named other suspects. (Id. at 67; see ECF No. 11 at 14-19.) Petitioner points to Grover Jones’
statement that the only person he knew who fit the description of
the

perpetrator

was

“Junebug”;

the

fact

that

Charles

Malone

informed police that “Junebug” was McKay’s brother; and Wallace’s
identification of Ralph Franklin, McKay’s cousin, in a lineup two

39

days after the murders when Petitioner was also in the lineup. (ECF
No. 44 at 6-7.) Petitioner argues that the MPD and DA have
additional information about the “identification procedures” they
employed and the State’s investigation of other suspects based on
the facts that Jones and Wallace could not identify Petitioner
immediately after the crime and both identified someone other than
Petitioner. (Id. at 7.)
Petitioner argues that the requested records will assist
Petitioner in proving that the State knowingly presented false
testimony (see Am. Pet. Claims A.1, A.4-6, A.10, ECF No. 11, at 7,
21-26, 30) regarding witness identification of Petitioner. (ECF No.
44 at 7.) He points to Wallace’s confusing testimony at trial that
he saw Petitioner “face-to-face” and could identify him, despite
Wallace’s failure to identify anyone at the hospital just after the
incident and to identify Petitioner in a lineup. (Id. at 7-8.)
Petitioner points to a police report noting that Wallace stated “he
had really only seen one of the male blacks and that was the one
that bent over him and shot at his head with a .45 automatic. This
would have been Larry McKay.” (Id. at 7; see ECF No. 44-1 at 8.)
Petitioner

notes

that

Wallace

did

not

make

a

positive

identification of Petitioner until a probable-cause hearing held
two months after the shooting, and Wallace explained that he knew
Petitioner’s name from reading it in the paper. (ECF No. 44 at 7;
ECF No. 44-15 at 4.) Petitioner contends that the requested
information

supports

his

claim

40

that

Wallace

did

not

testify

truthfully at trial about Petitioner being one of the perpetrators.
(ECF No. 44 at 8.)
Petitioner also notes that his fingerprints did not match
fingerprints lifted at the crime scene. (Id. at 8.) He argues that
he has good cause to obtain files indicating what fingerprint
matches were made. (Id.) Petitioner argues that the requested
discovery will support both his Brady

claim and his actual-

innocence claim. (Id.)
Respondent argues that Petitioner’s assertion that he has been
unable

to

obtain

discovery

absent

a

court

order

is

false.

Petitioner possesses a substantial number of records related to his
claims as evidenced by the attachments to his Motion for Discovery.
(ECF No. 46 at 5.) Respondent asserts that absent a court order,
there

is

no

obligation

under

the

Tennessee

Post-Conviction

Procedure Act to provide investigative records to Petitioner while
a collateral review is pending. (Id. at 5 n.5.)
Respondent argues that Petitioner has not demonstrated good
cause. (Id. at 5-6.) He contends that the Tennessee Court of
Criminal

Appeals

deemed

the

materials

Petitioner

offers

to

challenge the veracity of Wallace’s in-court identification as
immaterial and insufficient to support a Brady claim. (Id. at 6,
8.) Respondent argues that Wallace’s in-court identification was
cumulative evidence because Rice identified Petitioner and that
further impeachment of Wallace’s testimony would have no impact on
the jury verdict. (Id. at 6-7.) Respondent argues that Petitioner’s
attachments

and

allegations

about

41

Grover

Jones’

and

Malone’s

statement about “Junebug” were never presented to the highest
available state court and are, therefore, procedurally defaulted.
(Id. at 7.) Respondent notes that Petitioner does not indicate when
he discovered Malone’s statement to police identifying “Junebug” as
Leeaster McKay, Jr. (Id.) Respondent points out that Jones was not
an eyewitness, and Jones’ speculation about the identity of the
perpetrators carried little weight with the jury. (Id.) Respondent
asserts that Jones’ and Malone’s statements are not indicative of
improperly withheld evidence and would not entitle Petitioner to
habeas relief. (Id. at 7-8.)
Respondent

argues

that

Petitioner’s

attachments

and

allegations about the MPD fingerprint records were never presented
to

the

highest

procedurally

available

defaulted.

state

(Id.

at

court
8.)

and

as

Respondent

a

result

asserts

are
that

Petitioner possessed these records when he filed his petition for
post-conviction relief on January 27, 1995, but Petitioner failed
to present the records to the Tennessee Court of Criminal Appeals
as a basis for relief in 2009. (Id. at 9.) Respondent contends that
the lack of fingerprint records implicating Petitioner’s presence
at the crime scene, a place frequented by the public, has a
negligible

effect

on

the

jury’s

verdict

in

light

of

the

identification testimony presented at trial. (Id.)
Respondent characterizes Petitioner’s argument for discovery
as a propensity argument: that because previous post-conviction
discovery resulted in relevant evidence, the current requests
should be granted. (Id.) Respondent contends that generalized

42

statements about the speculative existence of evidence do not
constitute

good

cause,

and

Petitioner

has

failed

to

produce

specific evidence that supports his discovery requests and to
identify specific information that his requests will uncover. (Id.
at

9-10.)

Respondent

asserts

that

“[P]etitioner’s

request

represents a quintessential example of an unauthorized ‘fishing
expedition.’” (Id. at 10.)
Petitioner argues that Brady constitutes sufficient cause to
excuse procedural default. (ECF No. 48 at 3-4.) He asserts that
Martinez21 establishes cause for the procedural default of his
Brady, Napue22, Giglio23, and ineffective assistance of counsel
claims.

(Id.

at

4-6.)

Petitioner

argues

that

evidence

of

consideration given to witnesses is generally found in the DA file,
and the only means for Petitioner to obtain Brady materials is
through

the

DA’s

willing

compliance

with

Brady,

voluntary

disclosure of the DA file, or a motion for discovery. (Id. at 8.)
Petitioner asserts his claim of actual innocence as sufficient
cause to overcome procedural default. (Id. at 10-11.)
Respondent argues that Martinez does not apply in Tennessee
based on the United States Court of Appeals for the Sixth Circuit’s
recent ruling in Hodges v. Colson, 711 F.3d 589, 612 (6th Cir.
2013). Respondent argues that the requested discovery related to
Petitioner’s procedurally defaulted claim is not likely to resolve

21

Martinez v. Ryan, 132 S. Ct. 1309 (2012).

22

Napue v. Illinois, 360 U.S. 264 (1959).

23

Giglio v. United States, 405 U.S. 150 (1972).

43

any factual disputes that would entitle Petitioner to relief and
therefore should be denied. (ECF No. 56 at 2.)
MPD and DA records related to the robbery and murders at the
L & G Grocery may provide information that resolves factual
disputes about eyewitness identification and other suspects, and
may support Petitioner’s Brady claims. The suppression of any such
material evidence would excuse the procedural default of a claim.
See Jones, 696 F.3d at 486-87 (“[S]howing an actual Brady violation
is itself sufficient to show cause and prejudice.”). Accordingly,
the

Sixth

Circuit’s

decision

in

Hodges

does

not

impact

the

discovery of these records.24
The Court finds that Petitioner has demonstrated good cause
for discovery of the MPD and DA records related to the L & G
Grocery

robbery

and

murders,

including

Petitioner’s

itemized

requests to the extent that these requests are limited to the L & G
Grocery incident.25 Request A is GRANTED.

24

Petitioner, in his Notice of Supplemental Authority requests that the
Court conclude that Martinez applies in this case based on the Court’s recent
decision in Cone v. Colson, No. 97-2312, 2013 WL 752129 (W.D. Tenn. Feb. 14,
2013). For the same reasons listed above, the Court declines to reach the issue
of whether Martinez applies in this case.
25

Discovery of the DA’s case file is little more than a formality given
the fact that Petitioner was at one time entitled to obtain a copy of the files
pursuant to the Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503, et seq.
See Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01–A–019104CH00150,
1992 WL 12217 (Tenn. Ct. App. Jan. 29, 1992) (holding that the District Attorney
General could not deny a request for access to the prosecution and police files
on a rape/murder case by attorneys representing the person convicted of the
crimes in a pending habeas corpus proceeding in federal court because those files
were not exempt from disclosure under the Tennessee Public Records Act).

44

B.

Charles Rice (“Request B”)
Petitioner seeks discovery of “Charles Rice’s school records

and Juvenile Court records, the [DA and MPD] files regarding
evidence of consideration that the State gave to Charles Rice in
exchange for his testimony, and the deposition of Charles Rice,”
including but not limited to
1.

Charles Rice’s school records from the Memphis City
School system ([Chicago Park and Klondike elementary
schools, an alternative junior high school, and Manassas
High School]);

2.

Rice’s entire Juvenile Court record from 1973-82;

3.

[T]he transcript of the proceedings of Charles
Rice’s Juvenile Court charges stemming from the
February 11, 1982 incident, including discussion of
the March 30, 1982 disposition;

4.

[T]he [DA and/or MPD] files related to Rice’s
Juvenile Court charges, especially the February 11,
1982 incident, to see how his being a witness
against Mr. Sample affected his charges; . . .

5.

Rice’s Juvenile Court probation files, especially
[those] relating to the February 11, 1982 incident;

6.

Charles Rice’s mental health evaluation conducted
by the Juvenile Court; and

7.

[P]ermission to depose Charles Rice.

(ECF No. 43 at 2-3; ECF No. 44 at 14.)
Petitioner argues that Rice was the State’s star witness who
testified that he observed Petitioner and McKay inside the store
immediately prior to the robbery and that he saw Petitioner and
McKay

shoot

and

kill

the

store

clerks.

(ECF

No.

44

at

9.)

Petitioner argues that Rice, who was sixteen years old at the time
of

the

crime,

could

not

identify

45

Petitioner

without

police

prodding, lied while testifying, and received consideration from
the State for his false testimony. (Id.)
1.

School Records (“Request B1”)

Petitioner asserts that he has good cause for Rice’s school
records

because

they

will

show

that

Rice

lied

about

his

intellectual abilities and mental health and misled the trial court
into believing that Rice was competent to testify. (Id.) Petitioner
contends that the State knew that Rice was mentally retarded and
lacked basic reasoning skills. (Id.) Petitioner argues that Rice’s
school records will enable Petitioner to prove that the State
knowingly

presented

false

testimony

(Am.

Pet.

Claim

A.4,

ECF No. 11, at 21-23), that Petitioner’s trial counsel were
unconstitutionally ineffective for failing to challenge Rice’s
testimony (Am. Pet. Claims D.11-12, ECF No. 11, at 45), and that
the trial court failed to conduct an adequate competency evaluation
(Am. Pet. Claim G.22, ECF No. 11, at 65). (ECF No. 44 at 9-10.)
At

trial,

defense

counsel

raised

the

issue

of

Rice’s

competency to testify. (Id. at 10.) Rice testified that he was
promoted each year, never failed a grade, did not take special
classes, and had not had a mental evaluation. (Id.) However, a
neuropsychological evaluation performed by Dr. Pam Auble reveals
that Rice clearly lied about his educational history. (Id. at 1011; see ECF No. 44-18 at 8.) Rice failed four grades and finally
left school after three attempts at eighth grade. (ECF No. 44 at
10; ECF No. 44-18 at 3-5, 24-25.) Rice received special education
services and his IQ in third grade was in the range for mental

46

retardation. (ECF No. 44 at 11; ECF No. 44-18 at 4.) Petitioner
argues that a subsequent evaluation by Dr. Gregory DeClue noted
similar intellectual deficiencies indicating that Rice lied while
testifying

against

Petitioner

and

showed

suggestibility

and

vulnerability to police pressure. (ECF No. 44 at 11.) Petitioner
relies on Majors v. Warden, No. 2:99-cv-00493, 2010 WL 3341593, at
*2-3 (E.D. Cal. Aug. 23, 2010), which granted the petitioner leave
to subpoena the mental health records of the state’s key witness
because

the

records

supported

false

testimony,

Brady,

and

ineffective assistance of counsel claims. (Id.)
Respondent notes that the Tennessee Court of Criminal Appeals
considered

and

rejected

Petitioner’s

claims

that

the

State

knowingly presented false testimony from Rice. (ECF No. 46 at 12.)
Respondent cites the Tennessee Court of Criminal Appeals’ decision
which noted that Rice was extensively cross-examined and impeached
when the defense highlighted that Rice had lied to police. (Id. at
13 (citing Sample, 2010 WL 2384833, at *20).) Respondent argues
that considering Wallace’s testimony, Rice’s testimony was merely
cumulative evidence of Petitioner’s guilt. (Id.)
Petitioner seeks to establish that the State knew Rice was
mentally retarded, lacked basic reasoning, and fell victim to
police suggestibility. (See ECF No. 44 at 9.) However, even the
mentally incompetent can testify if they have personal knowledge of
the subject of their testimony and swear or affirm to tell the
truth. See Tenn. R. Evid. 601 Advisory Commission’s Comments; see
also Tenn. R. Evid. 602 & 603. Although school records may reveal

47

that Rice testified untruthfully about the grades he completed and
whether he attended special education classes, Rice’s testimony
about his education is collateral to Rice’s testimony concerning
substantive matters affecting Petitioner’s guilt or innocence. See
United States v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985)
(finding
collateral

no

error
matters,

where

the

untruthful

including

the

testimony

witness’

concerns

background

and

education). School records are not likely to demonstrate whether
Rice

was

truthful

about

the

specific

matters

at

issue

in

Petitioner’s trial or whether he was subject to police suggestion.
The Court finds that Petitioner has not demonstrated good
cause for the discovery of Rice’s school records. Request B1 is
DENIED.
2.

Juvenile Records (“Requests B2-B6”)

Petitioner argues that he has good cause to obtain discovery
of evidence of consideration that the DA and/or MPD gave to Rice in
exchange for his testimony to support Petitioner’s claims that the
State withheld evidence of the consideration it gave Rice (Am. Pet.
Claim A.9, ECF No. 11, at 30); that the State knowingly put on
Rice’s false testimony (Am. Pet. Claims A.4 & A.5, id., at 21-25);
and that Petitioner’s counsel were ineffective when they failed to
challenge Rice’s testimony (Am. Pet. Claim D.11, id., at 45). (ECF
No. 44 at 12.)

Petitioner asserts that on February 11, 1982, Rice

was charged with “aggravated assault and extortion” related to an
incident involving his girlfriend where Rice allegedly pushed her
down the stairs and took her money. (ECF No. 44 at 12; ECF No. 44-

48

18 at 7.) On March 8, 1982, Rice testified at a hearing on a motion
to suppress identification evidence in Petitioner’s case. (ECF No.
44 at 12.) On March 30, 1982, the charges against Rice were changed
to assault and battery, and Rice was placed on probation and
released to the custody of his mother. (Id.; ECF No. 44-18 at 7.)
Petitioner argues that the State appears to have given Rice a
lenient sentence in exchange for his testimony at Petitioner’s
trial and withheld this information from the defense. (ECF No. 44
at 12-13.)
Respondent asserts that “[o]ther than the bald and conclusory
allegation” that Rice received a contemporaneous charge reduction
in juvenile court, Petitioner offers no facts to support his claim
that Rice received consideration in exchange for his testimony.
(ECF No. 46 at 14.) Respondent points to the cumulative nature of
Rice’s testimony and the Tennessee Court of Criminal Appeals’
determination

that

Rice

was

extensively

cross-examined

and

impeached to assert that the requested records would not entitle
Petitioner to habeas relief. (Id.)
Petitioner has presented nothing more than mere speculation
that the State gave Rice a lenient sentence in exchange for his
testimony

in

Petitioner’s

case.

Without

further

information

establishing a connection between Rice’s testimony and his juvenile
court records, the Court finds that Petitioner has not demonstrated

49

good

cause

for

discovery

of

Rice’s

juvenile

court

records.26

Requests B2-B5 are DENIED.
Petitioner asserts that psychological evaluations underscore
Rice’s competency issues and call into question his ability to
witness an event and subsequently testify about it. (ECF No. 44 at
12.) Dr. Angelillo interviewed Rice in 2001, about nineteen years
after Petitioner’s trial when Rice was facing first-degree murder
charges,

and

reported

that

Rice

could

become

“irrational,

delusional, . . . when his dependence on others was threatened.”
(ECF No. 44-18 at 14; see ECF No. 44-22 at 3-5.) These records in
no way indicate that, at the time of Petitioner’s trial, Rice was
an incompetent witness or that juvenile court psychiatric records
could resolve the issue of Rice’s competency or his truthfulness as
it relates to the L & G Grocery robbery and murders.
The Court finds that Petitioner has not demonstrated good
cause for the discovery of the mental-health evaluation of Rice
that the juvenile court conducted. (See ECF No. 44-18.) Request B6
is DENIED.
3.

Deposition of Charles Rice (“Request B7”)

Petitioner argues that he has good cause to take Rice’s
deposition to develop his ineffective assistance of counsel claims
(Am. Pet. Claims C.2, D.11-12, ECF No. 11, at 32-33, 45) and his
claim that the trial court violated his rights when it failed to

26

Petitioner should be able to determine from the MPD and/or DA files
whether the State made a deal with Rice. If Petitioner finds additional
information in the MPD and/or DA files supporting his claim that the State gave
Rice a lenient sentence in exchange for his testimony in Petitioner’s case,
Petitioner may file a motion for discovery of those records at that time.

50

conduct an adequate competency evaluation of Rice (Am. Pet. Claim
G.22, ECF No. 11, at 65). (ECF No. 44 at 13.)
Petitioner

contends

that

Rice’s

drug

and

alcohol

use,

beginning at age eleven, affected his ability to witness the
incident, recall the incident, and subsequently testify. (Id.)
Petitioner

points

out

that

Rice

“continues

to

appear

to

be

suffering from significant psychological disturbances . . . he
manifests symptoms of delusional disorder. . . .” (Id. at 13-14.)
Petitioner argues that the evaluation’s findings underscore Rice’s
competency issues and call into question Rice’s ability to witness
an event and subsequently testify about it. (Id. at 14.) Petitioner
asserts that “it is imperative” for his counsel to depose Rice to
establish what he actually saw, the extent of his drug use, his
lack of perception, and his mental abilities so that Petitioner can
prove his claims. (Id.) Petitioner contends that a deposition would
allow him to explore the circumstances under which Rice gave
statements, received consideration, and/or was involved with the
prosecution in preparing his testimony. (Id.)
Respondent argues that the claims related to Rice’s competency
were never presented to the highest available state court and, as
a

result,

are

procedurally

defaulted.

(ECF

No.

46

at

15.)

Respondent argues that Petitioner could have deposed or subpoenaed
Rice during the state post-conviction proceedings. (Id.) He further
asserts that because Petitioner’s counsel had the opportunity to
cross-examine

Rice,

the

need

for

a

discovery

deposition

is

mitigated. (Id.) Respondent asserts that Petitioner has failed to

51

demonstrate that a deposition would result in the discovery of
evidence entitling Petitioner to relief. (Id. at 16.)
Petitioner focuses on obtaining information about Rice’s lack
of

perception,

drug

use,

and

mental

abilities

and

whether

Petitioner received consideration for his testimony. (ECF No. 44 at
14.)

For

the

competency,

false

testimony,

and

ineffective

assistance issues, the focus should be on whether Rice told the
truth at Petitioner’s trial. Petitioner has not presented any
specific facts to demonstrate that Rice was inebriated or under the
influence at the time he witnessed the L & G Grocery robbery or
when

he

testified

at

Petitioner’s

trial.

Petitioner

has

not

presented any facts indicating that Rice was untruthful about
anything other than the collateral matter of his own educational
background. Petitioner has not presented facts indicating that Rice
was delusional at the time of Petitioner’s trial. Petitioner only
speculates that Rice received consideration in exchange for his
testimony. Further, Petitioner’s counsel was able to cross-examine
Rice at trial, mitigating the need for a discovery deposition. See
Payne, 89 F. Supp. 2d at 974.27
The Court finds that Petitioner has not demonstrated good
cause to take Rice’s deposition. Request B7 is DENIED.

27

Petitioner contends that Rice was incompetent to testify and notes
Rice’s psychiatric issues to demonstrate that he was incompetent to testify. (See
ECF No. 44 at 14.) It would seem that Rice’s testimony, if he is indeed
incompetent as Petitioner argues, would not be reliable to support Petitioner’s
false testimony, ineffective assistance of counsel, and Brady claims.

52

C.

Alibi Evidence for the L & G Grocery Robbery and Murders, the
Lillie & Eddie’s Robbery, and the Low’s Robberies (“Request
C”)
Petitioner requests leave to depose “C.G. Mannon, former DA

investigator, and Mary Bell, former personnel clerk at Carrier
Corporation,” and seeks discovery of Petitioner’s “timecards for
the month of August 1981, particularly August 7, 18, and 29, 1981.”
(ECF No. 43 at 3.)
Petitioner argues that he has good cause to depose Mannon and
Bell and to obtain Petitioner’s time cards for the month of August
1981

from

Carrier

to

support

his

false

testimony,

Brady,

ineffective assistance of counsel, prosecutorial misconduct, and
trial court error claims related to the Lillie & Eddie’s Grocery
robbery (Am. Pet. Claims A.6, C.6, G.26, H.2, ECF No. 11, at 25-26,
36-37, 66, 68), and his claims of actual innocence (Am. Pet. Claims
A.2, K.14, ECF No. 11, at 14-19, 83). (ECF No. 44 at 15.)
Petitioner contends that he was working his regular shift at
Carrier Air Conditioning Factory (“Carrier”) in Collierville,
Tennessee, from 4:00 p.m. until midnight on August 18, 1981, when
Lillie & Eddie’s Grocery was robbed at 9:35 p.m. (Id.) He contends
that the State knew he was at work and still put on evidence
placing him at the Lillie & Eddie’s Grocery robbery in order to
implicate him in the L & G Grocery robbery and murders. (Id.)
Petitioner contends that Mannon uncovered exculpatory facts while
investigating the case including: (1) information from Petitioner’s
neighbor Osborne Lumpkin that Petitioner worked from “around 4:00
in the evening [to] 1:00 o’clock at night”; and (2) information

53

from Bell at Carrier that, on August 18, 1981, Petitioner’s time
card showed that he worked double shifts from 7:00 a.m. to 3:30
p.m., and 4:00 p.m. to 12:00 p.m. (Id. at 15-17; see ECF No. 44-23;
ECF No. 44-24.) Petitioner argues that he has good cause to obtain
his time cards for the month of August 1981, and specifically the
time cards for August 7, 18, and 29, 1981. (ECF No. 44 at 17.) The
Low’s Grocery robberies occurred on August 7 and 29, 1981, the
Lillie & Eddie’s Grocery robbery occurred on August 18, 1981, and
the L & G Grocery robbery and murders occurred on August 29, 1981.
(Id.) Petitioner argues that the Court should permit Petitioner to
issue a Rule 45 subpoena to Larry J. Campbell, the Senior Human
Resource Manager for Carrier’s parent company, to obtain the time
cards. (Id.)
Respondent argues that while the Amended Petition states that
the State withheld material exculpatory evidence about the robbery
at Lillie & Eddie’s Grocery, it does not state that Petitioner was
at work during the robbery. (ECF No. 46 at 17; see ECF No. 11 at
25-26.) Respondent argues that Habeas Rule 2(c) provides that a
petitioner must “specify all the grounds for relief available” and
“state the facts supporting each ground.” (ECF No. 46 at 17.)
Respondent asserts that the discovery sought supports an allegation
that was not pleaded and that Petitioner has failed to demonstrate
good cause. (Id. at 18.) Respondent points to Petitioner’s “obvious
knowledge of his own whereabouts on the time and date in question”
and the fact that Petitioner never presented this allegation to the
highest available state court. (Id.) Respondent further notes that

54

Petitioner could have deposed or subpoenaed Mannon, Bell, or
Campbell during state post-conviction proceedings. (Id.) Respondent
argues

that

Brady

is

not

violated

by

failure

to

disclose

information or records that are readily available to the defense.
(Id. at 19.) Respondent also argues that such evidence does little
to refute Wallace’s and Rice’s identification of Petitioner as a
perpetrator. (Id. at 20.) Respondent argues that Petitioner has
failed to demonstrate good cause to request discovery for his
actual innocence claim where there is no clearly established
federal law on the issue. (Id. at 20-21.)
The prosecution presented information from the L & G Grocery
robbery and murders and the Lillie & Eddie’s Grocery robbery to
establish Petitioner’s guilt. Petitioner attached a memorandum
authored by Mannon related to his conversations with Bell. (See ECF
No. 44-24.) The memorandum states,
Early on September 7, 1982, the writer obtained a Duces
Tecum for the employment records of Michael Eugene Sample
at the Carrier Corporation. This Duces Tecum subpoena was
executed to Mary Bell, clerk in the personnel office. She
obtained a record for August 18, 1981, which showed that
Sample worked the 7:00 a.m. to 3:30 p.m. shift. She
explained that the plant shut down for inventory from
July 27, 1981 to August 22, 1981. That there’s only
limited people working during this shut down. However,
the division that Sample worked in making coils for air
conditioners always starts up a few days earlier than the
rest of the plant. Which probably explains why he was
working on the 18th. That record shows that he worked
7:00 a.m. to 3:30 p.m. during that week, and later
returned to his 4:00 to 12:00 shift. Reason being that
the other set up men that were senior to Sample refused
to come back to work early. Therefore, Sample was
assigned to work the set up on the day shift to run the
condensors [sic]. Ms. Bell stated that she would obtain
the new records for the entire month of August and
contact the writer when these records had been turned

55

over to her. A copy of Michael Sample’s time card is
attached to this report.
(Id. at 3.) The time card referenced in the report was not filed
with the motion. Contrary to Petitioner’s assertion, the Court
interprets the memorandum as demonstrating that Sample worked on
August 18, 1981, the day of the Lillie & Eddie’s Grocery robbery,
from 7:00 a.m. to 3:30 p.m. When the shutdown was over after August
22, 1981, Sample went back to his 4:00 p.m. shift. The time cards
subpoenaed by the DA’s office are not attached to the motion, and
it is unclear what information they revealed.
Petitioner contends that he is innocent. There is no clearly
established Supreme Court precedent establishing a free-standing
habeas claim of actual innocence. See Herrera v. Collins, 506 U.S.
390, 404 (1993) (“A claim of actual innocence is not itself a
constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.”). A defendant, however, may obtain
review of a procedurally defaulted claim by demonstrating his
“actual innocence.” Bousley v. United States, 523 U.S. 614, 622
(1998).
Petitioner seeks time cards for the entire month of August
1981. The request is over-broad. Petitioner has not specifically
alleged that he was at work during either the Lillie & Eddie’s
Grocery robbery or the L & G Grocery robbery. The Court, however,
finds that Petitioner’s actual-innocence assertions establish good
cause for discovery of the time cards for August 18, and August 29,

56

1981, the dates of the Lillie & Eddie’s Grocery robbery and the
L & G Grocery robbery and murders.
Petitioner seeks to discover information related to the dates
for the Low’s Grocery robberies. (See ECF No. 44 at 17.) There was
no clear connection made at trial between the Low’s Grocery
robberies and the L & G Grocery robbery. Annie and Tommy Low did
not testify at trial. See Sample, 2010 WL 2384833, at *19. Any
identification issues related to the Low’s Grocery robberies are
not relevant to the determination of Petitioner’s guilt. Petitioner
has not demonstrated good cause for the time cards from August 7,
1981.
The Court finds that Petitioner has not demonstrated good
cause for the depositions of Mannon and Bell.28 Request C is DENIED
IN PART as to the depositions of Mannon and Bell and the request
for time cards for the entire month of August 1981. Request C is
GRANTED IN PART to the extent Petitioner has demonstrated good
cause for discovery of the time cards for August 18 and 29, 1981.
D.

Consideration Given to Witnesses (“Request D”)
Petitioner seeks evidence that the DA and/or the MPD gave

consideration to Melvin Wallace, Charles Malone, Eddie Wright, Mike
Winfrey (aka Michael Funches), and Gino White, “individuals who
testified against Petitioner at trial and/or a pretrial hearing.”
More specifically, Petitioner seeks:
1.

Melvin Wallace’s Shelby County criminal record from
January 1, 1980 until December 31, 1982;

28

If the DA’s file or time cards reveal additional information relevant
to establish Petitioner’s alibi, Petitioner may seek depositions at that time.

57

2.

[T]he [DA] file regarding evidence of consideration
given to Melvin Wallace;

3.

Charles Malone’s criminal file from January 1, 1980
to December 31, 1982;

4.

[T]he MPD’s booking file on Charles Malone from
August 30, 1981;

5.

[T]he
[DA’s]
investigative
and
trial
files
regarding the L & G, Lillie & Eddie’s and Low’s
robberies as they relate to Charles Malone;

6.

[A]ny record of drug related investigations and
prosecutions that the [DA] and/or the MPD conducted
on Lillie & Eddies’s and/or Eddie Wright;

7.

Mike Winfrey’s (aka Michael Funches) Juvenile Court
file from January 1, 1980 until December 31, 1981;

8.

Mike Winfrey’s (aka Mike Funches) Shelby County
criminal file from January 1, 1981 until December
31, 1982;

9.

[T]he [DA] file regarding evidence of consideration
given to Mike Winfrey (aka Michael Funches);

10.

Geno White’s[29] juvenile court file from January 1,
1980 until December 31, 1982; and

11.

[T]he [DA] file regarding evidence of consideration
given to Geno White.

(ECF No. 43 at 4; ECF No. 44 at 18, 25-26.)
Petitioner argues that he has good cause to obtain discovery
of evidence of consideration that the DA and MPD gave to the
following witnesses who testified against Petitioner: (1) Melvin
Wallace; (2) Charles Malone; (3) Eddie Wright; (4) Mike Winfrey;
and (5) Gino White. (ECF No. 44 at 18.) Petitioner contends that
this

information

will

support

his

Brady,

false

testimony,

ineffective assistance of counsel, and actual innocence claims.

29

See supra note 1 and accompanying text.

58

(Id. at 18-19; see Am. Pet. Claims A.1, A.2, A.9, A.10, D.11,
K.14, ECF No. 11, at 7-19, 30, 45, 83.)
Respondent argues that Petitioner’s “bald allegation” that
these witnesses received consideration for their testimony does not
establish good cause because: (1) Petitioner has not demonstrated
cause for his failure to previously develop and fully and fairly
present the factual basis of this claim to the highest available
state court; and (2) Petitioner has failed to demonstrate that
discovery would entitle him to habeas relief. (ECF No. 46 at 21.)
1.

Melvin Wallace (“Requests D1-D2”)

Petitioner points to the following in the record: (1) that
Wallace did not identify Petitioner in a lineup two days after the
shooting; (2) that McKay would have been the person who shot
Wallace; (3) that the first time Wallace identified Petitioner was
at a probable-cause hearing; and (4) that Wallace told Petitioner’s
attorney that he knew Petitioner’s name because “I’ve been told”
and “I read it in the paper.” (ECF No. 44 at 19.)
Respondent

contends

that

these

claims

are

procedurally

defaulted and that Petitioner has not demonstrated cause to excuse
the procedural default. (ECF No. 46 at 22.) Respondent argues that
Wallace’s identification was merely cumulative. (Id. at 22-23.)
Respondent further argues that Petitioner failed to allege facts
sufficient to support his “bald assertion” that Wallace received
consideration in exchange for his testimony. (Id. at 23.)
Wallace admitted that his sole identification of Petitioner
was in court and that he had previously viewed lineups where he did

59

not

identify

Petitioner.

(ECF

No.

21-2

at

1882-85.)

Wallace

testified that he did identify Petitioner in a lineup, but “[a]t
that time the reason that I didn’t put it down was . . . because I
was out of my head, I was sick, and I was taking medication
. . . .” (Id. at 1885-86.) When Wallace was asked if anyone told
him to pick anyone in particular, he testified, “Nobody. Nobody
told me a thing.” (Id. at 1887.) Wallace testified that he was
positive that Petitioner was the one who shot him. (Id. at 1904.)
The inconsistency in Wallace’s identification of Petitioner
was addressed at trial, and Wallace offered an explanation for his
initial failure to identify Petitioner. In this Order, Petitioner
has been granted discovery of the DA file for Petitioner’s case.
See supra p. 44. To that extent, Request D2 for the DA file
regarding evidence of consideration given to Wallace is GRANTED.
Without more specific allegations related to consideration
being given to Wallace, the Court finds that Petitioner has not
demonstrated good cause for discovery of Wallace’s Shelby County
criminal record from January 1, 1980, until December 31, 1982.
Request D1 is DENIED.
2.

Charles Malone (“Requests D3-D5”)

Petitioner notes that Charles Malone, who was arrested with
Defendant Larry McKay and Petitioner, was released the next day
without being charged although Malone fit the physical description
of one of the suspects. (ECF No. 44 at 20.) Charles Rice identified
Malone as a suspect in an August 31, 1981, lineup. (Id.) Petitioner
argues that there was information that three black males were

60

involved in the Lillie & Eddie’s Grocery robbery, and Malone’s
release contradicts the MPD investigation. (Id. at 20-21.)
Respondent asserts that Petitioner has presented nothing more
than a “a bald assertion” and “conclusory allegation.” (ECF No. 46
at 24.) Respondent argues that Petitioner has not demonstrated that
evidence of consideration would entitle him to relief on his
procedurally defaulted and “otherwise meritless” claims. (Id. at
24-25.)
The

Court

finds

that

Petitioner

has

not

alleged

facts

sufficient to demonstrate good cause for discovery of Malone’s
criminal file. Request D3 is DENIED.
The MPD booking file may show why Malone was released from
custody the day after the L & G Grocery robbery.30 The Court finds
that Petitioner has demonstrated good cause for discovery of the
MPD booking file for Malone. Request D4 is GRANTED.
The Court has granted Petitioner discovery of the DA files for
the L & G Grocery robbery, see supra p. 44. Therefore, Request D5
is GRANTED IN PART to the extent Petitioner is entitled to the
discovery of DA files related to Malone’s involvement in the L & G
Grocery robbery. Request D5 is DENIED IN PART as it relates to
whether Malone was considered a suspect in the investigation of the
Lillie & Eddie’s Grocery robbery, or the Low’s Grocery robbery, as
these robberies do not determine Petitioner’s guilt or innocence of
the crimes for which he was convicted and the information sought

30

Petitioner has been granted the MPD files related to the L & G
Grocery robbery, see supra pp. 44.

61

is

not

likely

to

resolve

any

dispute

related

to

an

alleged

constitutional violation in Petitioner’s case.
3.

Eddie Wright (“Request D6”)

Petitioner argues that he has reason to believe that Eddie
Wright regularly sold drugs at Lillie & Eddie’s Grocery based on
the comments of Willie Everett, the security guard who worked at a
market across the street from both Lillie & Eddie’s Grocery and the
L & G Grocery, that the L & G Grocery was where you buy marijuana
and Lillie & Eddie’s Grocery was where you buy pills. (ECF No. 44
at 21-22; see ECF No. 44-28 at 1-2.) Petitioner argues that because
Wright testified against him, Petitioner has reason to believe that
the State gave Wright consideration for his testimony in the form
of reduced criminal charges involving drug sales at Lillie &
Eddie’s Grocery. (ECF No. 44 at 22.)
Respondent argues that the allegations that Wright received
consideration

in

exchange

for

his

testimony

are

procedurally

defaulted. (ECF No. 46 at 25.) Respondent asserts that Petitioner
has

presented

nothing

more

than

a

“bald

assertion”

and

a

“conclusory allegation” that Wright received consideration for his
testimony. (Id.) Respondent argues that Wright’s identification of
Petitioner is largely collateral and constitutes merely cumulative
evidence of Petitioner’s guilt. (Id. at 26.)
Petitioner was not convicted of robbing Lillie & Eddie’s
Grocery. Wright’s identification of Petitioner does not establish
Petitioner’s guilt of the crimes for which he was convicted. The
Court finds that Petitioner has not demonstrated good cause for the

62

discovery

of

any

record

of

drug-related

investigations

and

prosecutions that the DA and/or the MPD conducted on Lillie &
Eddie’s Grocery and/or Eddie Wright. Request D6 is DENIED.
4.

Mike Winfrey (“Requests D7-D9”)

Petitioner argues that he has good cause to obtain discovery
to determine whether the DA and/or MPD gave Winfrey consideration
in exchange for his testimony; whether the trial court erred in
allowing

Winfrey

to

identify

Petitioner

because

Winfrey

saw

Petitioner at a pretrial hearing and did not have independent
knowledge of Petitioner; and whether Petitioner’s counsel was
unconstitutionally

ineffective

in

his

failure

to

challenge

Winfrey’s credibility. (ECF No. 44 at 22; see Am. Pet. Claims A.9,
D.11, G.20, ECF No. 11, at 30, 45, 64.)
Petitioner asserts that Winfrey’s physical description of the
suspects in the L & G robbery and murders made after the L & E
Grocery preliminary hearing differed from his testimony at the
L & G Grocery trial. (ECF No. 44 at 22-23.) The initial description
involved three suspects, but at trial Winfrey only admitted to
seeing

two

suspects.

(Id.

at

23.)

Further,

Winfrey

did

not

positively identify Petitioner until more than a year after the
robbery. (Id.)
Respondent argues that the allegation that Winfrey received
consideration

in

exchange

for

his

testimony

is

procedurally

defaulted and that Petitioner presents no facts to support his
claim. (ECF No. 46 at 27.)

63

Petitioner offers no facts to support his allegations as it
relates to Winfrey’s juvenile and criminal records. The Court finds
that Petitioner has not demonstrated good cause for discovery of
those records. Requests D7 and D8 are DENIED.
The Court finds that Petitioner has demonstrated good cause
for discovery of the DA file, see supra p. 44, including the DA
records related to evidence of consideration given to Winfrey for
his testimony at the L & G Grocery trial. Request D9 is GRANTED.
5.

Gino White (“Requests D10-D11”)

Petitioner asserts that Gino White gave “a vivid, detailed
description of what the robbers said and did in [Lillie & Eddie’s
Grocery],

who

they

interacted

with,

and

where

they

were

positioned.” (ECF No. 44 at 24.) Petitioner contends that there is
no record of White reporting this information to police and that
White’s testimony is a recitation of the statement that Billy
Smith, a sixteen-year-old employee of Lillie & Eddie’s Grocery,
gave to the police. (Id.) Petitioner argues that there were issues
with White’s in-court identification of Petitioner because White
never viewed a police lineup and had looked into the courtroom from
the hallway prior to testifying about the two people he recognized
from the robbery. (Id. at 24-25.) Petitioner contends that, on
August 18, 1981, White told the police something different than
what he testified to at Petitioner’s trial more than a year later.
(Id. at 25.)
Respondent argues that the allegation that White received
consideration

in

exchange

for

his

64

testimony

is

procedurally

defaulted and that Petitioner offers no facts to support his claim.
(ECF No. 46 at 28-29.)
White’s testimony related to Lillie & Eddie’s Grocery and his
identification of Petitioner does not establish Petitioner’s guilt
or innocence for the crimes of which he was convicted. The Court
finds

that

Petitioner

has

not

asserted

specific

facts

that

demonstrate good cause for discovery of White’s juvenile court
file. Request D10 is DENIED.
The Court finds that Petitioner has demonstrated good cause
for the discovery of the DA file, see supra p. 44, which would
include DA records related to evidence of consideration given to
White for his testimony at the L & G Grocery trial. Request D11 is
GRANTED.
E.

The L & G Grocery and Grover Jones (“Request E”)
Petitioner seeks “information revealing that people affiliated

with L & G Grocery were regularly engaged in drug dealing at the
grocery store,” and “evidence of consideration that the State gave
to Grover Jones in exchange for his testimony against Petitioner,”
and the deposition of Grover Jones. Specifically, Petitioner seeks:
1.

The MPD, FBI, [DA], and drug task force’s
investigative files involving drug related crimes,
drug
related
arrests/charges/convictions,
and
search warrants issued at L & G Grocery from
January 1, 1979 to December 31, 1982;

2.

[T]he [DA] files regarding consideration [given] to
Grover Jones as a result of his statements and/or
testimony in Michael Sample’s case;

3.

[A]ny record of drug related investigations and
prosecutions that the [DA] and/or MPD conducted
involving Grover Jones; and

65

4.

[P]ermission to depose Grover Jones.

(ECF No. 43 at 5; ECF No. 44 at 26.)
Petitioner argues that he has good cause: “(1) to obtain
evidence that L & G [Grocery] was a known location for drug
dealing, (2) to obtain evidence that the State gave Grover Jones
consideration for his testimony against Petitioner, and (3) to
depose Grover Jones.” (ECF No. 44 at 26.) Petitioner contends that
this information will enable him to prove that: (1) the State
withheld exculpatory evidence about drugs sales at L & G Grocery
(Am. Pet. Claim A.3, ECF No. 11, at 19-21); (2) Petitioner’s
counsel failed to investigate the history of drug-related offenses
at L & G Grocery (Am. Pet. Claims C.2, C.5, ECF No. 11, at 32-33,
35-36); (3) Petitioner’s counsel failed to effectively challenge
the credibility of the State’s witnesses, including Grover Jones
(Am. Pet. Claim D.11, ECF No. 11, at 45); (4) the State withheld
evidence of consideration given to Jones in exchange for his
testimony at trial (Am. Pet. Claim A.9, ECF No. 11, at 30); and (5)
Petitioner is actually innocent of the crimes of which he was
convicted (Am. Pet. Claims A.2, K.14, ECF No. 11, at 14-19, 83).
(ECF No. 44 at 26.)
1.

Law Enforcement and Prosecution Files Related to Drug
Activity (“Requests E1, E3”)

Petitioner requests the DA, MPD, FBI, and drug task force
files

“arising

from

the

investigation

of

drug

sales,

search

warrants issued, and drug-related arrests/charges/convictions made
at the L & G Grocery from January 1, 1979 to December 31, 1982,”
and any record of drug-related investigations and/or prosecutions
66

that the DA and/or MPD conducted involving Grover Jones. (ECF No.
44 at 26, 29.) Petitioner notes that marijuana was found in the
meat coolers at the store and that police questioned Jones about
drug dealing at the L & G Grocery on the night of the robbery and
murders. (Id. at 27.) Petitioner notes that Everett stated that the
L

&

G

Grocery

was

well-known

in

the

community

for

selling

marijuana. (Id.) Everett claimed that the police knew about the
drug dealing, and he believed the police were “getting their
share.” (Id.)
Respondent argues that the request is overly broad and fails
to

identify

the

specific

information

Petitioner

believes

his

request will uncover. (ECF No. 46 at 31.) Respondent contends that
Petitioner’s request for unspecified Brady material is a “fishing
expedition.” (Id.) Respondent further asserts that the Tennessee
Court of Criminal Appeals has already determined that evidence
concerning drug activity at the L & G Grocery would not be
exculpatory. (Id. at 32.) Respondent argues that FBI records are
not

subject

to

discovery

because

Brady

does

not

impose

an

affirmative duty on the government to take action to discover
information which it does not possess, and Petitioner has not
alleged that the prosecution had knowledge of any exculpatory
evidence possessed by the federal government. (Id. at 32-33.)
Respondent contends that because Petitioner was identified by both
Melvin Wallace and Charles Rice as the perpetrator, the evidence
sought is largely collateral to the overwhelming direct evidence of

67

Petitioner’s guilt and would not affect the verdict or entitle
Petitioner to habeas relief. (Id. at 33-34.)
Petitioner focuses on his allegations that Jones sold drugs at
the store and asserts that Jones has a history of drug-related
convictions from that time period. (ECF No. 44 at 27.) Jones’
record shows two drug-related charges from 1974, eight years prior
to the murders, which had no disposition. (See ECF No. 44-31.) Even
if there was evidence that Jones sold drugs at the L & G Grocery,
Petitioner has not established any connection between the drug
sales and the robbery and murders other than the possibility that
money or drugs may have been a motive for the robbery and murders.
That same motive could apply to Petitioner just as it would apply
to any other suspect. Proof of drug sales does not negate the
identification of Petitioner as a perpetrator or mitigate the
murders of the two L & G Grocery clerks.
Jones’ testimony at trial was limited to his identification of
the victims, money missing from the store, the location of bullet
holes, and bullets that were found on the premises. (See ECF No.
21-2 at 1783-93.) None of this testimony directly inculpated
Petitioner. Jones stated, “as you know, I have never seen [the
robbers], so I can not possibly say it’s them.” (Id. at 1815.)
Jones’ testimony does not prejudice Petitioner, and discovery
relating to the collateral matter of whether Jones sold drugs at
the L & G Grocery would not exculpate Petitioner. The Court finds
that Petitioner has not demonstrated good cause. Requests E1 and E3
are DENIED.

68

2.

Consideration Given to Grover Jones (“Request E2”)

Petitioner argues that Jones had a criminal record with drugrelated convictions around the time of the robbery and murders, and
that the store was the subject of a drug-related search warrant
within

the

year

prior

to

the

murders.

(ECF

No.

44

at

28.)

Petitioner states that he has reason to believe that Jones received
leniency for his own criminal actions in exchange for his testimony
against Petitioner. (Id.)
Respondent argues that Petitioner’s claim that Jones received
consideration for his testimony is procedurally defaulted and that
Petitioner has not demonstrated cause to excuse his failure to
previously develop and fully and fairly present the claim. (ECF No.
46 at 34.)
The Court has granted discovery of the DA and MPD files
related to the L & G Grocery murders, see supra p. 44, including
but not limited to DA files regarding consideration given to Jones
as a result of his statements and/or testimony in Petitioner’s
case. Request E2 is GRANTED.
3.

Deposition of Grover Jones (“Request E4”)

Petitioner argues that Grover Jones has firsthand knowledge of
the regular sale of drugs that occurred at the L & G Grocery,
information which would cast doubt on the credibility of the
testifying witnesses to the crime and on Petitioner’s conviction
and sentence. (ECF No. 44 at 29.) Petitioner contends that the
State withheld this evidence from the defense. (Id.)

69

Respondent argues that to the extent the Tennessee Court of
Criminal Appeals has already resolved Petitioner’s claims relating
to alleged drug activity at the L & G Grocery, this Court’s review
is limited to the record before the state court. (ECF No. 46 at
36.) Respondent again notes that Jones was not a witness to the
crime, and his trial testimony did not implicate Petitioner. (Id.)
Respondent contends that Jones’ deposition would not impact the
verdict or demonstrate that Petitioner was entitled to habeas
relief. (Id.)
For the same reasons the Court has stated that Petitioner
is not entitled to discovery of investigative and prosecution files
related to drug sales at the L & G Grocery and to Grover Jones,
see

supra

p.

63,

the

Court

finds

that

Petitioner

has

not

demonstrated good cause to take Jones’ deposition. Request E4 is
DENIED.
F.

DA & MPD Files Regarding Lillie & Eddie’s Grocery (“Request
F”)
Petitioner seeks the “all records from the [DA] and MPD

concerning

investigation,

prosecution,

and

post-conviction

proceedings arising from the August 18, 1981, robbery at Lillie &
Eddie’s

Grocery,”

and

more

specifically

“the

entire

MPD

investigative files as well as the entire [DA] files, including the
investigative and grand jury files, involving the August 18, 1981
robbery at Lillie & Eddie’s.” These files should include, but are
not limited to, the following:
1.

[T]he three cards worth of fingerprints that the
MPD collected from the Lillie & Eddie’s crime scene
. . . ;
70

2.

[T]he names corresponding with the Bureau of
Investigation numbers that produced negative
results when compared to prints that the MPD
collected from the Lillie & Eddie’s crime scene
. . . ;

3.

[T]he photographs and names of suspects in the mug
books that the MPD showed to witnesses Johnny Lynn
Smith, Eddie Wright, and Billy Smith on August 19,
1981
with
notations
for
who
each
witness
identified;

4.

[T]he names and photographs of suspects that the
MPD showed to Geno White on August 25, 1982 - a
year after the offense, in preparation for his
trial testimony;

5.

[T]he names and photographs of suspects that the
MPD showed Mike Winfrey on August 27, 1982 - a year
after the offense, in preparation for his trial
testimony;

6.

[T]ranscripts of the grand jury proceedings and any
other preliminary proceedings involving the August
18, 1981 robbery at Lillie & Eddie’s; and

7.

[T]he indictment reflecting the charges against
Petitioner and/or Larry McKay for the Lillie &
Eddie’s robbery.

(ECF No. 43 at 6-7; ECF No. 44 at 33.)
Petitioner argues that he has good cause for the discovery of
these records because the State violated his constitutional rights
by presenting evidence related to the Lillie & Eddie’s Grocery
robbery

when

the

robbery

was

only

potentially

relevant

to

Petitioner’s co-defendant’s identity, and neither Petitioner, nor
his co-defendant were convicted of committing the Lillie & Eddie’s
Grocery robbery. (ECF No. 44 at 29-30.) Petitioner contends that
discovery of the State’s file will allow him to demonstrate that he
was not involved in the Lillie & Eddie’s Grocery robbery (see Am.
Pet. Claims A.2, A.6, ECF No. 11, at 14-19, 25); the State
71

knowingly presented false testimony about Petitioner’s involvement
in the Lillie & Eddie’s Grocery robbery and withheld exculpatory
information about witnesses’ failure to identify Petitioner (Am.
Pet. Claims A.6, A.7, ECF No. 11, at 25-27); the State committed
prosecutorial misconduct by introducing evidence of the Lillie &
Eddie’s Grocery robbery at the L & G Grocery trial (Am. Pet. Claim
H.2, ECF No. 11, at 68); counsel was ineffective for failing to
investigate the Lillie & Eddie’s Grocery robbery (Am. Pet. Claims
C.2, C.6, D.8, ECF No. 11, at 32, 36-37, 43); the trial court erred
in allowing evidence of the Lillie & Eddie’s Grocery robbery at the
L & G Grocery trial (Am. Pet. Claim G.26, ECF No. 11, at 66); and
the trial court erred in failing to sever the trial given the
obvious evidence of McKay’s culpability and the lack of evidence of
Petitioner’s culpability (Am. Pet. Claims B.1-B.3, G.3, ECF No. 11,
at 30-31, 60-61). (ECF No. 44 at 30.)
Petitioner argues that on the night of the Lillie & Eddie’s
Grocery robbery, multiple witnesses stated that three men were
involved in that robbery. (Id.) However, at trial, the State
characterized the Lillie & Eddie’s Grocery robbery as the work of
two men, Petitioner and McKay. (Id.) Petitioner seeks to obtain
additional information to show that others were involved, that he
was not involved, and that the State withheld this evidence. (Id.
at 31.) Petitioner contends that Wright did not identify him as one
of the persons responsible for the crime, although Petitioner was

72

in the August 31, 1981, lineup. (Id.)31 Petitioner believes that
Billy Smith, a store employee, identified someone other than
Petitioner from a mug book as a suspect, and that the State
withheld this information. (ECF No. 44 at 31-32.) Petitioner
contends that the State also withheld information about Johnny Lynn
Smith, a twelve-year-old store employee. (Id. at 32.) Johnny Smith
recently informed Petitioner’s defense team that he went to a
police precinct on August 19, 1981, with Wright to view photos.
(Id.) Wright pointed to a picture and said “that’s him!” (Id.)
Johnny Smith told Wright that he did not recognize the man, but
Wright told Johnny Smith, “Trust me. That’s him!” (Id.)
Respondent argues that Petitioner’s request is overly broad
and that Petitioner has not demonstrated good cause. (ECF No. 46 at
38.) Respondent argues that the Tennessee Court of Criminal Appeals
has already deemed evidence offered to show that three individuals
were involved in the Lillie & Eddie’s Grocery robbery is immaterial
and insufficient to support a Brady claim. (Id. at 39.) He argues
that the Tennessee Supreme Court has determined that the decision
not to sever the defendants’ trial was proper and that this Court
is limited to the review of the record before the state court on
these issues. (Id.)
Respondent asserts that the MPD reports from August 18, 1981,
and November 17, 1981, that Petitioner relies on to demonstrate
good cause included statements from Michael Winfrey and Berry

31

When viewing the lineup, Wright made a notation that both Petitioner
and Charles F. Malone resembled one of the Lillie & Eddie’s Grocery robbers. (ECF
No. 44-12.)

73

Chambers that were never presented to the highest available state
courts. (Id.) Respondent contends Petitioner does not indicate when
or how he first obtained these reports or when he first learned
that these witnesses claimed there were three suspects for the
robbery. (Id. at 40.) Respondent argues that any claim stemming
from these reports is procedurally defaulted. (Id. at 39.)
Respondent
inability

to

asserts

identify

that
him

Petitioner

when

he

knew

filed

his

about

Wright’s

post-conviction

petition, but failed to present the allegation to the Tennessee
Court of Criminal Appeals. (Id. at 40.) Respondent argues that
claims

related

to

Wright’s

identification

are

procedurally

defaulted. (Id.)
Respondent argues that Petitioner did not include specific
allegations

about

Billy

Smith

and

Johnny

Smith

or

their

identification of a suspect other than Petitioner; Respondent
asserts that Petitioner’s claim would fail under Habeas Rule 2(c).
(Id. at 41-42.) Respondent further asserts that because no claims
related to Billy Smith and Johnny Smith were presented in the state
court, these allegations are procedurally defaulted. (Id.) Further,
Respondent argues that the materials offered by Petitioner and the
discovery sought are largely collateral to Petitioner’s conviction.
(Id. at 43.)
The Tennessee Supreme Court determined that evidence related
to

the

Lillie

Petitioner’s

&

case,

Eddie’s

Grocery

specifically

to

robbery
the

issue

was
of

relevant

to

whether

the

defendants were in possession of the same .45 caliber pistol taken

74

from the Lillie & Eddie’s Grocery and to the identity of the
killers. See McKay, 680 S.W.2d at 452. Further, Officer Schwill,
Eddie Wright, Darrell Perry, Gino White, and Mike Winfrey all
testified about the Lillie & Eddie’s Grocery robbery at the L & G
Grocery trial. Evidence in the DA and MPD files related to the
Lillie & Eddie’s Grocery robbery may allow Petitioner to establish
cause for procedural default and resolve disputes related to his
false testimony, Brady, and due process claims.
The Court finds that Petitioner has demonstrated good cause
for discovery of DA and MPD files regarding the Lillie & Eddie’s
Grocery robbery. Request F is GRANTED.
G.

Law Enforcement Records Related to Drugs at Lillie & Eddie’s
Grocery (“Request G”)
Petitioner requests “MPD, FBI, [DA] and drug task force

investigative files involving drug related crimes, drug related
arrests/charges/convictions, and search warrants stemming from drug
activity at Lillie & Eddie’s Grocery from January 1, 1979 to
December 31, 1982.” (ECF No. 43 at 7; ECF No. 44 at 34-35.)
Petitioner argues that he has good cause for the discovery of
these records because the information contained in these records
will help him prove that the State withheld exculpatory evidence
that drugs were sold at Lillie & Eddie’s Grocery (Am. Pet. Claim
A.7, ECF No. 11, at 26-27); that Petitioner’s counsel failed to
investigate the history of drug-related offenses at Lillie &
Eddie’s Grocery which would have shown that people other than
Petitioner were responsible for the Lillie & Eddie’s Grocery
robbery and the L & G Grocery robbery and murders (Am. Pet. Claim
75

C.6, ECF No. 11, at 36-37); and that Petitioner’s counsel failed to
effectively challenge the credibility of the State’s witnesses (Am.
Pet. Claim D.11, ECF No. 11, at 45). (ECF No. 44 at 34.) Petitioner
relies on information from Everett that Lillie & Eddie’s Grocery
was well-known in the community for selling pills and that the
police

and

residents

in

the

community

knew

about

the

drug

activities at the store. (Id.; ECF No. 44-28.)
Respondent argues that Petitioner’s request is overly broad,
constitutes a “fishing expedition,” fails to identify specific
information Petitioner believes his request will uncover, and does
not include sufficient supporting facts to identify the specific
evidence or information sought. (ECF No. 46 at 44.) Respondent
contends that the claims pertaining to Everett are procedurally
defaulted and that Petitioner has failed to demonstrate that the
factual predicate for the claims could not have been previously
discovered. (Id. at 44-45.) Respondent contends that Petitioner has
not demonstrated good cause for the discovery of FBI records
because Brady does not impose an affirmative duty on the government
to take action to discover information which it does not possess.
(Id. at 45-46.)
Information related to drug activity at Lillie & Eddie’s
Grocery is collateral to Petitioner’s case and not material to the
investigation or prosecution of the crimes committed at the L & G
Grocery,
discovery

see

supra

pp.

62-63.

Petitioner

continues

to

seek

of information about drug activity at Lillie & Eddie’s

Grocery, but has not presented any facts to demonstrate how that

76

drug activity will absolve him of criminal responsibility for the
L & G Grocery robbery and murders.
The Court finds that Petitioner has not demonstrated good
cause for discovery of law enforcement records related to drug
activity at Lillie & Eddie’s Grocery. Request G is DENIED.
H.

DA and MPD Records for the Low’s Grocery Robberies (“Request
H”)
Petitioner seeks “all records from the [DA] and the [MPD]

concerning the investigation and grand jury proceedings arising
from the robberies of Low’s Grocery & Market [on] August 29, 1981
and August 7, 1981,” including
1.

The complete investigative and grand jury files
from the MPD and the [DA] for the Low’s robberies
on August 7, 1981 and August 29, 1981;

2.

James Nunley’s (aka James Nummery, aka James
Nunnlley) statement regarding the August 7, 1981
Low’s robbery and any documents related to its
preparation and (non)use;

3.

[A]ny statements or documentation regarding a
witness statement taken from Jackie, James Nunley’s
acquaintance, who witnessed the August 7, 1981
robbery;

4.

[I]nformation pertaining to the marked Cobra Alarm
$10 bill from the August 29, 1981 robbery;

5.

[R]ecords of fingerprint evidence collected at the
crime scene following both robberies and results of
any fingerprint comparisons . . . ;

6.

[S]ubsequent pages of witness Alma Jo Jones’s
statement to police regarding the August 29, 1981
robbery . . . ;

7.

[S]ubsequent pages of witness Luther James Ward’s
statement to police regarding the August 29, 1981
robbery . . . ; and

8.

[A]
readable
copy
of
the
four-page
MPD
Supplementary Offense Report regarding the August
77

29, 1982 Low’s robbery, reported by [Sergeant] R.L.
True and [Sergeant] R.G. Wright.
(ECF No. 43 at 7-8; ECF No. 44 at 38-39.)
Petitioner asserts that he has good cause for discovery of the
State’s investigative materials from the August 7, 1981, and August
29, 1981, Low’s Grocery robberies because the State investigated
the Low’s Grocery robberies in conjunction with the L & G Grocery
and Lillie & Eddie’s Grocery robberies. (ECF No. 44 at 35.)
Petitioner contends that the State’s investigative theory was that
the L & G Grocery robbery was the culmination of a crime spree that
included the two Low’s Grocery robberies and the Lillie & Eddie’s
Grocery robbery. (Id.) Petitioner asserts that, in reality, there
was only evidence of McKay’s participation, and not Petitioner’s
participation, in the Low’s Grocery robberies. (Id.) Petitioner
argues that the State violated Brady by not disclosing exculpatory
information

related

to

the

Low’s

Grocery

robberies.

(Id.)

Petitioner believes that the State did not introduce evidence of
the Low’s Grocery robberies at the L & G Grocery trial because they
“couldn’t pin” the Low’s Grocery robberies on Petitioner. (Id.)
Petitioner

notes

that

Annie

and

Tommy

Low

did

not

identify

Petitioner as the perpetrator in the August 31, 1981, lineup, but
both of them identified McKay as the perpetrator. (Id. at 36-37.)
Petitioner’s defense team recently spoke with James Nunley, a
witness to the August 7, 1981, robbery, and he reported that an
officer spoke with him shortly after the robbery. (Id. at 37.)
Nunnley told the police detailed information about the suspects,
including that he recognized their voices from the neighborhood.
78

(Id.) Petitioner argues that when police told Nunley they found the
person who was responsible for the Low’s Grocery robbery, the L & G
Grocery robbery had not yet taken place. (Id. at 38.) Petitioner
contends that he is entitled to know who the police believed was
responsible for the Low’s Grocery robbery. (Id.)
Respondent argues that Petitioner’s request is overly broad.
(ECF No. 46 at 47.) Respondent argues that the Tennessee Court of
Criminal

Appeals

deemed

Annie

Low’s

inability

to

positively

identify Petitioner as the perpetrator not to be exculpatory and as
immaterial

to

Petitioner’s

guilt

or

innocence.

(Id.

at

48.)

Respondent contends that the Court’s review is limited to the
record before the state court. (Id.) Respondent contends that to
the extent Petitioner’s Motion raises allegations not previously
presented in the state court, those allegations are procedurally
defaulted. (Id.) Respondent contends that Petitioner knew that
Annie Low, Tommy Low, and Alma Jones witnessed the Low’s Grocery
robbery when he filed his January 27, 1995, petition for postconviction relief, that the witnesses failed to identify him, and
that some of the witnesses identified other individuals as the
perpetrator. (Id. at 49.)
Identification issues related to the Low’s Grocery robberies
are

not

exculpatory

or

relevant

to

the

determination

of

Petitioner’s guilt or innocence of the crimes committed at L & G
Grocery, see supra p. 57.

79

The Court finds that Petitioner has not demonstrated good
cause for discovery of law enforcement records related to the Low’s
Grocery robberies. Request H is DENIED.
I.

Certain Individuals’ MPD and DA Files (“Request I”)
Petitioner

seeks

“[MPD]

and

[DA]

files

regarding

the

investigation and/or prosecution of the following individuals from
January 1, 1980 to December 31, 1982,” specifically
1.

Individuals suspected of participating in the
August 29, 1981 robbery and murders at L & G
Grocery and/or individuals who knew of the ongoing
criminal activities at L & G Grocery
a.
b.

Leeaster McKay, Jr. (aka Leester McKay, Jr.,
aka Junebug)

c.

Ralph Franklin

d.

James D. Coleman and Derrick Tolliver

e.

Charles Malone

f.
2.

Wilbur White (aka Big White)

Ricky Peete

Individuals suspected of participating in the
August 18, 1981 robbery of Lillie & Eddie’s
Grocery, and/or individuals who knew of the ongoing
criminal activities at Lillie & Eddie’s Grocery
a.
b.

Sammy House

c.

Eddie Lewis Wright

d.

Michael Wright

e.
3.

Marvin Phillips

Michael Winfrey (aka Michael Funches)

Individuals suspected of participating in the
August 7, 1981 and August 29, 1981 robberies of
Low’s Grocery:
a.

Tommy Lee Bradford
80

b.

Ralph Franklin

(ECF No. 43 at 8-9; ECF No. 44 at 39-49.)
1.

Individuals Suspected of Participating in the August 29,
1981, Robbery and Murders at the L & G Grocery and/or
Individuals who Knew of the Ongoing Criminal Activities
at the L & G Grocery (“Request I1”)

Petitioner argues that he has good cause for discovery of lawenforcement files for the individuals suspected of participating in
the August 29, 1981, L & G Grocery robbery and murders, and/or
individuals who knew of the ongoing criminal activities at L & G
Grocery because it will enable Petitioner to prove the following
claims:

that the State withheld exculpatory information (Am. Pet.

Claims A.2, A.3, ECF No. 11, at 14-19); that the State withheld
evidence of consideration given in exchange for testimony against
Petitioner

(Am.

Pet.

Claim

A.9,

ECF

No.

11,

at

30);

that

Petitioner’s trial counsel was ineffective (Am. Pet. Claims C.2,
C.5, D.11, ECF No. 11, at 32-33, 35-36, 45); and that Petitioner is
actually innocent of the offense of which he was convicted (Am.
Pet. Claims A.2, K.14, ECF No. 11, at 14-19, 83). (See ECF No. 44
at 39-43.)
Petitioner asserts that he has good cause for discovery of
law-enforcement files for the following individuals:
Wilbur White because Petitioner claims that White was in front
of the L & G Grocery at the time the robbery and murders occurred
and used a pay phone outside the L & G Grocery immediately after
the incident (id. at 39-40; ECF No. 44-13 at 3);

81

Leeaster McKay, Jr. (aka Leester McKay, Jr., aka Junebug), codefendant Larry McKay’s brother, because Charles Malone made a
statement

to

police

that

Leeaster

McKay’s

street

name

was

“Junebug,” Grover Jones made a statement to police that “Junebug”
fit the description of the perpetrator who robbed his store, and
Grover Jones testified at trial that he believed “Junebug” was
responsible for the L & G Grocery robbery and murders (ECF No. 44
at 40);
Ralph Franklin, Larry McKay’s cousin, because Melvin Wallace
identified Franklin as the perpetrator of the L & G Grocery robbery
and murders, Annie Low tentatively identified Franklin as the
person responsible for the August 29, 1981, Low’s Grocery robbery,
Franklin’s alibi was connected to Charles Malone, another suspect
in the L & G Grocery robbery and murders, and Officer D.W.
Robertson testified that he filled in the lineup with people from
the jail and that Franklin had to have been recently arrested on a
criminal charge to be in the lineup (id. at 41);
James D. Coleman and Derrick Tolliver because they were
suspects in an armed robbery that occurred five hours after the
L & G Grocery robbery and murders, about two miles away from the L
& G Grocery, and the armed robbery was carried out with the same
type of .45 caliber automatic weapon used in the L & G Grocery
incident (id. at 42; see ECF No. 44-30 at 5);
Charles Malone because Malone was arrested with Petitioner and
his co-defendant McKay, Malone was released by the police on the
same evening as the arrest for the L & G Grocery robbery and

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murders without charges, and Malone was identified as a suspect by
Charles Rice (ECF No. 44 at 42); and
Ricky Peete, purportedly Grover Jones’ business partner,
because Jones claimed that Peete had a store on Vollintine Avenue
where he sold drugs and because Peete faced federal charges for
receiving cash payments in exchange for influencing votes while an
elected member of the city council (id. at 43).
Respondent asserts that the allegations regarding Franklin and
Peete have already been found to be insufficient to support a Brady
claim by the Tennessee Court of Criminal Appeals (ECF No. 46 at 55,
60);

that

the

allegations

regarding

White,

McKay,

Franklin,

Coleman, Tolliver, Malone, and Peete are procedurally defaulted
because they were never presented to the highest available state
court (id. at 52, 53, 55-57, 59-60); that Petitioner’s claims based
on information pertaining to White, McKay, Franklin, Coleman,
Tolliver, Malone, and Peete “rely upon a factual predicate that
could . . . have been previously discovered through the exercise of
due diligence” (id. at 52, 54, 56-57, 59-60); that law-enforcement
records on White, McKay, Franklin, Coleman, Tolliver, Malone, and
Peete would not have cast doubt on the overwhelming evidence of
Petitioner’s guilt and would not have had any impact on the jury’s
verdict (id. 52-54, 56, 58-61); and that Petitioner’s claims based
on the discovery sought as to Franklin under Request I1 pertain to
the Low’s Grocery robberies, which is a collateral matter (id. at
56).

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Insofar as Petitioner’s request is for law-enforcement files
on the aforementioned individuals not directly relating to the
L

&

G

Grocery

robbery

and

murders

of

which

Petitioner

was

convicted, Petitioner’s request is overly broad. Petitioner has not
demonstrated a sufficient connection between the requested files
and the L & G Grocery robbery and murders. Since Petitioner has
already been granted discovery of the MPD and DA files related to
the L & G Grocery robbery and murders, see supra p. 44, Petitioner
should be able to obtain information related to other suspects in
the L & G Grocery robbery and murders.
The Court finds that Petitioner has not shown good cause for
the discovery of these materials. Request I1 is DENIED.
2.

Individuals Suspected in the Robbery of, and/or Familiar
with Ongoing Criminal Activities at, Lillie & Eddie’s
Grocery (“Request I2”)

Petitioner argues that he has good cause for discovery of lawenforcement files for the individuals suspected of participating in
the August 18, 1981, Lillie & Eddie’s Grocery robbery, and/or
individuals who knew of the ongoing criminal activities at Lillie
& Eddie’s Grocery because it will enable Petitioner to prove the
following claims: that the State withheld exculpatory information
(Am. Pet. Claim A.6, ECF No. 11, at 25-26); that the State withheld
evidence of consideration given in exchange for testimony against
Petitioner (Am. Pet. Claim A.9, ECF No. 11, at 30); that the State
committed prosecutorial misconduct (Am. Pet. Claim H.2, ECF No. 11,
at 68); that Petitioner’s trial counsel was ineffective (Am. Pet.
Claims C.6, D.11, D.14, ECF No. 11, at 36-37, 45); that the trial

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court erred in allowing evidence of the Lillie & Eddie’s Grocery
robbery to be presented at the L & G Grocery trial (Am. Pet. Claim
G.26, ECF No. 11, at 66); and that Petitioner is actually innocent
of the offense of which he was convicted (Am. Pet. Claims A.2,
K.14, ECF No. 11, at 14-19, 83). (See ECF No. 44 at 44-48.)
Petitioner asserts that he has good cause for discovery of
law-enforcement files for the following individuals:
Marvin Phillips because witnesses identified Phillips as being
involved in the Lillie & Eddie’s Grocery robbery, Wright told the
police that Phillips might be responsible for the Lillie & Eddie’s
Grocery robbery, and the police investigation resulting in the
discovery that a car seen driving away from Lillie & Eddie’s
Grocery immediately after the robbery belonged to Phillips (id. at
44-45);
Sammy House because witnesses, including Wright, identified
House as the Lillie & Eddie’s Grocery robber and House was known in
the neighborhood as a “holdup man” (id. at 45; see ECF No. 44-30 at
4);
Eddie Lewis Wright, owner of Lillie & Eddie’s Grocery, because
Lillie & Eddie’s Grocery was well-known in the community for
selling pills (ECF No. 44 at 46);
Michael Wright, Eddie Lewis Wright’s son, because of the
alleged drug sales occurring at Lillie & Eddie’s Grocery and
Michael Wright’s statement to the police that the .45 caliber gun
that he purchased was stolen during the Lillie & Eddie’s Grocery
robbery (id. at 46-47); and

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Michael

Winfrey

(aka

Michael

Funches)

because

Winfrey

witnessed the Lillie & Eddie’s Grocery robbery, testified at the L
& G Grocery trial, gave inconsistent statements about the Lillie &
Eddie’s Grocery robbery, and made other misstatements at the L & G
Grocery trial (ECF No. 44 at 47-48).
Respondent asserts that the allegations regarding House have
already been found to be insufficient to support a Brady claim by
the Tennessee Court of Criminal Appeals (ECF No. 46 at 63); that
the allegations regarding Phillips, House, Eddie Wright, Michael
Wright, and Winfrey are procedurally defaulted because they were
never presented to the highest available state court (id. at 61,
63-64,

66-67);

that

Petitioner’s

claims

based

on

information

pertaining to Phillips, House, Eddie Wright, Michael Wright, and
Winfrey “rely upon a factual predicate that could . . . have been
previously discovered through the exercise of due diligence” (id.
at 61-63, 65-68); and that Petitioner’s claims based on the
discovery sought as to Phillips, House, Eddie Wright, Michael
Wright, and Winfrey under Request I2 pertain to the Lillie &
Eddie’s Grocery robbery, which is collateral to Petitioner’s claims
(id. at 62-63, 65-66, 68).
Petitioner’s Request I2 is overly broad because Petitioner has
not shown a sufficient connection between the information sought
and the L & G Grocery robbery and murders of which Petitioner was
convicted, and the request is not limited to those crimes that were
at issue at Petitioner’s trial. Petitioner has already been granted
discovery of the files related to the L & G Grocery robbery and

86

murders, see supra p. 44. With these files, Petitioner should be
able to obtain Brady evidence related to his conviction. As a
result, Petitioner’s Request I2 constitutes nothing more than a
“fishing expedition.”
The Court finds that Petitioner has not shown good cause for
discovery of these materials.
3.

Request I2 is DENIED.

Individuals Suspected of Participating in the August 7,
1981, and August 29, 1981, Low’s Grocery Robberies
(“Request I3”)

Petitioner argues that he has good cause for discovery of lawenforcement files for the individuals suspected of participating in
the August 7, 1981, and August 29, 1981, Low’s Grocery robberies
because it will enable Petitioner to prove the following claims:
that the State withheld exculpatory information (Am. Pet. Claims
A.2, A.6, ECF No. 11, at 14-19, 25-26); that Petitioner’s trial
counsel was ineffective (Am. Pet. Claim C.7, ECF No. 11, at 37-38);
and that Petitioner is actually innocent of the offense of which he
was convicted (Am. Pet. Claims A.2, K.14, ECF No. 11, at 14-19,
83).

(See ECF No. 44 at 48-49.)
Petitioner asserts that he has good cause for discovery of

law-enforcement files for the following individuals:
Tommy Lee Bradford because twelve-year-old witness Franklin
Wright and Ms. Wright identified Bradford as the perpetrator of the
August 29, 1981 Low’s Grocery robbery (id. at 48-49); and
Ralph Franklin because Annie Low identified Franklin, as well
as Larry McKay, as responsible for the August 29, 1981, Low’s

87

Grocery robbery which occurred mere hours before the L & G Grocery
crimes (id. at 49).
Respondent asserts that the allegations regarding Bradford and
Franklin have already been found to be immaterial and insufficient
to support a Brady claim by the Tennessee Court of Criminal Appeals
(ECF No. 46 at 68-69, 70-71); that the allegations regarding
Bradford and Franklin are procedurally defaulted because they were
never presented to the highest available state court (id. at 69,
71); that Petitioner’s claims based on information pertaining to
Bradford and Franklin “rely upon a factual predicate that could
. . . have been previously discovered through the exercise of due
diligence”

(id.);

and

that

Petitioner’s

claims

based

on

the

discovery sought as to Bradford and Franklin under Request I3
pertain to the Low’s Grocery robberies, which are collateral to
Petitioner’s claims (id. at 70, 72).
Petitioner has not shown good cause for the discovery of
materials sought pursuant to Request I3. There was no clear
connection made at trial between the Low’s Grocery robberies and
the L & G Grocery crimes. Discovery related to the Low’s Grocery
robberies concerns a wholly collateral matter that is not relevant
to the determination of Petitioner’s guilt for the crimes of which
he was convicted, see supra pp. 57, 77-80. Further, for the reasons
stated above, Petitioner has not demonstrated good cause for the
discovery of law-enforcement files on Franklin, see supra pp. 8184. As a result, Petitioner’s Request I3 constitutes nothing more
than a “fishing expedition.”

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The Court finds that Petitioner has not shown good cause for
the discovery of these materials. Request I3 is DENIED.
VIII. CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Discovery
is GRANTED IN PART and DENIED IN PART.
Request A is GRANTED.
Request B is DENIED.
Request C is GRANTED IN PART to the extent Petitioner has
demonstrated good cause for discovery of the time cards for August
18 & 29, 1981, and DENIED IN PART as to the depositions of Mannon
and Bell and the request for time cards for the entire month of
August 1981.
Request D is GRANTED IN PART and DENIED IN PART. Request D1 is
DENIED; Request D2 is GRANTED; Request D3 is DENIED; Request D4 is
GRANTED; Request D5 is GRANTED IN PART to the extent Petitioner is
entitled to the discovery of DA files related to Charles Malone’s
involvement in the L & G robbery and DENIED IN PART as it relates
to whether Malone was considered a suspect in the investigation of
the Lillie & Eddie’s Grocery robbery or the Low’s Grocery robbery
as these robberies do not determine Petitioner’s guilt or innocence
of the crimes for which he was convicted; Requests D6-D8 are
DENIED; Request D9 is GRANTED; Request D10 is DENIED; and Request
D11 is GRANTED.
Request E is GRANTED IN PART and DENIED IN PART. Request E1 is
DENIED; Request E2 is GRANTED; Requests E3-E4 are DENIED.
Request F is GRANTED.

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Request G is DENIED.
Request H is DENIED.
Request I is DENIED.
SO ORDERED this 23nd day of July, 2013.

s/ Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

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