Thomas v. Colson

Filing 30

ORDER granting in part and denying in part 25 Motion for Discovery. Signed by Judge Jon Phipps McCalla on 9/30/13. (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.
(
)
)
(
ANDREW THOMAS,

No. 12-cv-2333-JPM-tmp

ORDER DIRECTING CLERK TO CHANGE RESPONDENT
AND
ORDER GRANTING IN PART AND DENYING IN PART
PETITIONER’S MOTION FOR LEAVE TO CONDUCT DISCOVERY
On November 26, 2012, Petitioner Andrew Thomas (“Petitioner”
or “Thomas”), through counsel, filed a Motion for leave to conduct
discovery. (Electronic Case Filing (“ECF”) No. 25.)1 Respondent
Roland Colson2 filed a Response on December 13, 2012. (ECF No. 26.)
Thomas filed a Reply on December 21, 2012. (ECF No. 29.)

1
Unless otherwise noted, all ECF references are to filings contained
in the docket for Thomas v. Colson, No. 12-cv-2333-JPM-tmp (W.D. Tenn. Apr. 27,
2012).
2
Petitioner is currently incarcerated at Riverbend Maximum Security
Institution ("RMSI") where Wayne Carpenter is the warden. See Tennessee Felony
Offender Information Lookup, https://apps. tn.gov/foil/search.jsp (last visited
Sept.
23,
2013);
see
Tennessee
Department
of
Correction,
http://www.tn.gov/correction/institutions/rmsi.html (last visited Sept. 23,
2013). The Clerk shall record the respondent as RMSI Warden Wayne Carpenter. The
Clerk shall terminate all references to Roland Colson as the respondent.

I.

BACKGROUND
On September 25, 2001,3 a Shelby County jury found Thomas

guilty of felony murder based on the death of James Day (“Day”), an
armored truck guard, following a robbery in a Walgreens parking lot
in Memphis, Tennessee. Thomas v. State, No. W2008-01941-CCA-R3-PD,
2011 WL 675936, at *1 (Tenn. Crim. App. Feb. 23, 2011).4 The
Tennessee Supreme Court’s recitation of the facts is as follows.
Shortly after 12:30 p.m. on April 21, 1997, the
defendant [Thomas] and his co-defendant, Bond, saw an
3
Judge Joseph B. Dailey presided over the trial of Petitioner and his
co-defendant Anthony Bond (“Bond”). (See ECF No. 12-13 at PageID 947.) The trial
began on September 17, 2001, and continued until September 26, 2001. (Id.) Thirty
witnesses testified in the guilt stage of the trial. The State presented
testimony from Betty Gay, Charles Young, Darren Goods, Tony Arvin, David Little,
William L. Sanders, Christopher Sains, Gary Craig, Lajunta Kay Sikes, James
Hibbler, Jason Fleming, Angela Jackson, Tanya Monger, Treveous Garrett, Kelvin
McClain, Laudeemer Leabres, R. Hulley, Carol Wilson, Jerry Sims, Richard Fisher,
Chad Golden, Faye Day Cain, Dr. O. C. Smith, and Dr. Cynthia Gardner. (See id.
at PageID 951-58.) “A videotape of the shooting captured by Walgreens’
surveillance cameras was played for the jury.” Thomas v. State, No. W2008-01941CCA-R3-PD, 2011 WL 675936, at *2 (Tenn. Crim. App. Feb. 23, 2011). Bond presented
the testimony of Tony Nadlicki. (See ECF No. 12-13 at PageID 958.) Petitioner
presented the testimony of Robert Fisher, Stephanie Williams, William Upchurch,
and Russell Carpenter. (Id. at PageID 958-59.) The State presented rebuttal
testimony from Cedric Day and Angela Jackson. (Id. at PageID 959.) The jury began
deliberations in the guilt phase on Monday, September 24, 2001, at 4:05 p.m. (ECF
No. 13-2 at PageID 2996.) The jury continued deliberations until 10:05 p.m. that
night. (Id. at PageID 3003.) Deliberations continued on Tuesday, September 25,
2001, at 9:00 a.m., and the jury returned its verdict that day. (Id. at PageID
3004.)

The penalty phase began the same day with the State presenting the
testimony of Joe Warren and Faye Day Cain. (See id. at PageID 3037, 3069.)
Petitioner presented the testimony of Warren, Andre Barber, Luella Barber, Alacia
Bolden, Stephanie Williams, and Tamara Weeks. (See ECF No. 12-13 at PageID 962964.) Deliberations commenced at 11:15 a.m. on Wednesday September 26, 2001. (ECF
No. 13-4 at PageID 3364.) The jury returned its verdict after 1:00 p.m. that day
and sentenced Petitioner to death. (Id. at 3368-69.)
4
Bond confessed to being the driver of the getaway car, and testified
at Thomas’s 1998 federal trial. Thomas, 2011 WL 675936, at *6. Bond entered a
guilty plea to one count of robbery affecting commerce in federal court and was
sentenced to twelve years in prison. Id. at *6 n.1. Bond was thereafter convicted
of first-degree felony murder in the state court and received life without the
possibility of parole. State v. Thomas, No. W2001-02701-CCA-R3-DD, 2004 WL
370297, at *1 (Tenn. Crim. App. Feb. 27, 2004).

2

armored truck guard with a money deposit bag leaving a
Walgreens drug store on Summer Avenue in Memphis,
Tennessee. The defendant ran up, shot the guard in the
back of the head, grabbed the deposit bag, and jumped
into a white car being driven by Bond. The defendant and
Bond abandoned the white car on a street behind
Walgreens, got into a red car that the defendant had
borrowed from his girlfriend, and drove away.
Betty Gay, a Walgreens’ employee, heard the gunshot
and then saw the armored truck guard, James Day, lying in
the parking lot. She saw a man running from the scene
with a gun and the deposit bag. Charles Young, the
assistant manager of Walgreens, ran outside and saw Day
lying face down in a pool of blood. Day, who was
conscious, told Young, “Call my wife.” Day remained
conscious and continued to talk until an ambulance arrived.
Several witnesses described the cars used by the
defendant and Bond and gave descriptions of the occupants
to the police. One witness, Richard Fisher, testified
that he saw a white car “speed” around the armored truck
in the front of the store and that the car was within
four feet of him. Fisher later identified the defendant
as the passenger in the white car.
Later on the afternoon of April 21st, the defendant
and Bond arrived at the apartment of Angela Jackson
[(“Jackson”)], who was then the defendant’s girlfriend.
According to Jackson, the two men were “excited” and “out
of breath.” After telling Bond to get rid of the gun, the
defendant began taking money, checks, and food stamps
from small white envelopes that had been in Bond’s
jacket. The defendant and Bond divided the money.
Jackson testified that later that same day, the
defendant bought a customized car with gold plates and
spoke wheels for $3,975 in cash. The car was titled in
Jackson’s name. Afterward, the defendant told Jackson
that they needed to get a hotel room. While watching a
news report that evening at the hotel about the shooting,
the defendant told Jackson that the victim “did not
struggle for his life” and that he had “grabbed the
nigger by the throat and shot him.”
On the day after the shooting, Jackson opened a bank
account in her name and deposited $2,401.48 in cash. Two
days later, she bought a shotgun because the defendant
3

said they needed it “for protection.” According to
Jackson, the defendant later bought a gold necklace for
himself and wedding rings for both of them. After getting
married in May, the couple separated two months later.
The defendant told Jackson not to tell police about the
robbery.
The victim, James Day, did not immediately die from
the gunshot wound to the back of his head. Instead, the
gunshot damaged his spinal cord and resulted in
paraparesis (a profound weakness in one’s abdomen and
legs) and neurogenic bladder (a loss of bladder and bowel
control due to nerve damage). Faye Day Cain, the victim’s
widow, testified that her husband underwent numerous
surgeries, needed constant care and medical attention,
and was unable to work. He was confined to one room, was
unable to use the bathroom, and became depressed. In late
September of 1999, Day was rushed to the hospital for
emergency surgery after his bladder ruptured. The
condition caused an infection; Day’s condition continued
to worsen, and he finally died on October 2, 1999.
The medical examiner for Shelby County, Tennessee,
Dr. O.C. Smith, testified that the cause of Day’s death
was sepsis, “secondary to the rupture of his bladder
resulting from spinal cord injury caused by the gunshot
wound to his head.” Dr. Smith considered Day’s death a
homicide, and he stated that the “infection from the
ruptured bladder” could be “directly related back to
[the] gunshot wound.” Dr. Smith conceded that Day
suffered from heart disease, high blood pressure,
diabetes, and obesity, but he stated that these
conditions did not cause the death. Dr. Smith’s
assistant, Dr. Cynthia Gardner, likewise testified that
Day’s death resulted from the injuries caused by the
gunshot wound.
A videotape of the shooting captured by Walgreens’
surveillance cameras was played for the jury. A videotape
made from the original was also played for the jury at a
slower speed. Angela Jackson identified the defendant as
the gunman who shot the guard in the back of the head
from a still photograph that had been made from the
videotape.
After considering the evidence, the jury convicted
the defendant of felony murder based on the killing of
the victim “during an attempt to perpetrate robbery as
4

charged in the indictment.” The trial court then held a
sentencing hearing for the jury to determine the punishment.
State v. Thomas, 158 S.W.3d 361, 373-75 (Tenn. 2005) (footnote
omitted).
Regarding his state conviction and death sentence, Thomas
filed a § 2254 Petition claiming violations of his “Fifth, Sixth,
Eighth, and Fourteenth Amendment rights, resulting in Thomas’s
unconstitutional conviction and sentence of death.”

(ECF No. 1 at

6-7.) The instant Motion relates to this § 2254 Petition.
On November 13, 1998, almost three years prior to the statecourt trial, Thomas was convicted by a jury in federal court based
on this same incident on one count of “Interference with Commerce
by Threats or Violence,” pursuant to 18 U.S.C. § 1951; one count of
“Carry and Use of a Firearm During and in Relation to a Crime of
Violence,” pursuant to 18 U.S.C. § 924(c); and one count of “Felon
in Possession of a Firearm,” pursuant to 18 U.S.C. §§ 922(g) and
924(e). (See Judgment, United States v. Thomas, No. 98-cr-20100,
ECF No. 81 (W.D. Tenn. Feb. 17, 1999); see also Verdict, United
States v. Thomas, No. 98-cr-20100, ECF No. 67 (W.D. Tenn. Nov. 13,
1998).) Jackson testified at this earlier federal trial, as well.
Regarding these federal convictions and sentences, Thomas filed a
motion to vacate this Court’s judgment pursuant to 28 U.S.C.
§ 2255.

This motion is currently pending in this Court. (See

United States v. Thomas, No. 03-cv-2416-JPM-tmp (W.D. Tenn. June 2,
2003) (“§ 2255 proceeding”).)
5

At an evidentiary hearing on October 12 and 13, 2011, in the
related § 2255 proceeding, Scott A. Sanders (“Sanders”), Chief
Inspector of the United States Marshal’s Service, testified about
Jackson, a witness against Thomas in both the federal and state
trials:
Q:
Do you know whether Ms. Jackson was ever paid
anything in the form of a reward or anything else in
connection with her testimony?
[Sanders]: Yes, she was. After the conclusion of the
case, after the sentencings[] I believe[,] she was given
the sum of $750.
(ECF No. 1-8 at PageID 165:5-9; see also Thomas, No. 03-cv-2416JPM-tmp, ECF No. 133 at PageID 2017:5-9.)

Sanders continued,

Q: And who provided the money?
[Sanders]: The FBI funded the payment, and I believe I
paid her.
(ECF No. 1-8 at PageID 165:10-11; see also Thomas, No. 03-cv-2416JPM-tmp, ECF No. 133 at PageID 2017:10-11.) Federal Bureau of
Investigation (“FBI”) records reflect that Jackson was paid the sum
of $750 on December 18, 1998. (Thomas, No. 03-cv-2416-JPM-tmp, ECF
No. 153-1 at PageID 3158 ¶ 8; see also id. at PageID 3161-64.)
After the October 2011 evidentiary hearing, Sanders filed a
declaration further setting out the circumstances surrounding a
November 4, 1997, interview of Jackson and the December 18, 1998,
post-conviction $750 payment. (Thomas, No. 03-cv-2416-JPM-tmp, ECF
No. 153-1.) Thomas was sentenced in the federal case on February
16, 1999. (United States v. Thomas, No. 98-cr-20100-JPM-1, ECF No.
6

79 (W.D. Tenn. Feb. 16, 1999).) At the time of the April 21, 1997,
robbery, Sanders was a deputy U.S. Marshal assigned to work as a
task force officer on the FBI’s Safe Streets Task Force in Memphis,
Tennessee. (Id. at 1; see Thomas, No. 03-cv-2416-JPM-tmp, ECF No.
132 at PageID 1945-46.) Sanders stated in his 2011 declaration:
4.
At the time Ms. Jackson was giving us her statement
no agent offered any sort of immunity in exchange for her
truthful statement or subsequent testimony. As a matter
of practice[,] investigators are not authorized to do
this without prior approval from the U.S. Attorney’s
Office who has prosecutorial jurisdiction.
5.
At no time was Jackson ever informed that she had
criminal liability related to this case nor was she
threatened with prosecution if she did not cooperate. My
statement in regards to her possibly being charged with
being an Accessory After the Fact at the October 12 and
13, 2011 [sic] hearing was in direct response to the
question posed to me by the attorney that day. In other
words, it would have been possible, but authorities were
not holding that possibility over her head to get her to
cooperate and testify on behalf of the government.
6.
The $750.00 payment that was subsequently given to
Ms. Jackson was not anticipated, planned, or discussed
with her at all prior to the payment being made.
(Thomas, No. 03-cv-2416, ECF No. 153-1 at PageID 3157 ¶¶ 4-6.)
II.

DISCOVERY REQUESTS
Thomas requests leave to conduct discovery related to the

following four claims in his § 2254 Petition:
Claim No. 1: The State Violated Thomas’s Constitutional
Rights By Failing to Comply with Its Discovery
Obligations under Brady v. Maryland;[5]
. . . .

5

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

7

Claim No. 2: The State Violated Andrew Thomas’s
Constitutional Rights by Presenting Angela Jackson’s
False Testimony;
. . . .
Claim No. 3: Thomas is Actually Innocent of Day’s Felony
Murder;
. . . .
Claim No. 4:
Assistance of
Proceedings.

Andrew Thomas was
Counsel Throughout

Denied Effective
the State Court

(ECF No. 1 at 17-29, 29-35, 36-60, 60-93; see also ECF No. 25-1
at 2-3.)6
He seeks:
1.

To serve subpoenas duces tecum on Angela Jackson
and the relevant federal and state law enforcement
authorities to discover documentary evidence
relating to the foundation, composition, and
regulations and procedures governing the Safe
Streets Task Force;

2.

To discover documentary evidence relating to the
$750 payment made to Angela Jackson by the Safe
Streets Task Force, and to discover any additional
impeachment and/or exculpatory evidence that has
been improperly withheld in this case (including but not limited to — any payments, deals,
agreements, compensation, or any type of incentive
offered or provided to any witness against Thomas
in connection with his federal or state trial), and
to discover documents related to any custom or
practice of the Memphis FBI Office, the Memphis
Police Department, or of the Safe Streets Task
Force to make payments to witnesses other than the
$40.00 witness fee authorized by 28 U.S.C.

6
In the instant Motion, Thomas requests discovery related to the Brady
and false-testimony claims. (ECF No. 25 at 1.) In Thomas’s supporting memorandum,
he also requests discovery to support his actual-innocence and ineffectiveassistance-of-counsel claims. (See ECF No. 25-1 at 2-3, 18-21.)

8

§ 1821(b), including a list of all individuals who
have received such a payment in the past three
years;
3.

To take depositions of individuals who may have
knowledge relevant to Thomas’s Brady, false
testimony, actual innocence, and ineffective
assistance of counsel claims or the practice of
paying witnesses for their “cooperation” during
criminal investigations and trial, including — but
not limited to — Angela Jackson, U.S. Marshal Scott
Sanders, Thomas Bernard Locke, Stephen D. Anthony,
Special Agent William M. Carter, Assistant U.S.
Attorney Tony Arvin, Amy Weirich, Jennifer Nichols,
Michael Scholl and any and all other state or
federal prosecutors and law enforcement officers
involved in Thomas’s investigation and trial; and

4.

To depose other witnesses and individuals who are
identified as having received money from Memphis
federal and state law enforcement authorities in
connection
with
their
cooperation
with
an
investigation and/or testimony in favor of the
prosecution at trial.

(ECF No. 25 at 1-2; see ECF No. 25-1 at 3-4, 14-15.) Thomas filed
a document outlining proposed subpoena duces tecum topics and areas
of inquiry with the instant Motion. (ECF No. 25-2.)
III. STANDARDS APPLICABLE TO THE INSTANT MOTION
Habeas

petitioners

do

not

have

an

automatic

right

to

discovery. 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 of the Rules
Governing Section 2254 Cases in the United States District Courts
(“Habeas Rules”). Rule 6(a) 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.
9

See Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir. 2009) (“For
good cause shown, the district court has the discretion to allow
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, 300 (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;

accord

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
at 975 (quoting Stanford, 266 F.3d at 460); 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 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
10

he expects to uncover through his discovery requests.”).7 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.
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
which it rests”). But see Conway v. Houk, No. 3:07-cv-345, 2009 WL
7
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).

11

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)
(stating that allegations of procedural default will not bar
discovery).

“[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, i.e., 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).
IV.

ANALYSIS
Thomas asserts that his counsel had no knowledge of the

payment to Jackson until Sanders testified in October 2011 in the
§ 2255 Proceeding. (ECF No. 25-1 at 2.) To support Thomas’s Brady
and false-testimony claims, he provides his defense counsel Michael
Scholl’s declaration that “[a]t no time before, during, or after
the trial was I aware that Ms. Jackson had received any kind of
money,

reward,

compensation,

or

12

deal

from

the

investigators,

prosecutors, or any other entity in connection with the Walgreens
robbery.” (Id. at 8; see ECF No. 1-6 ¶ 4.) Thomas contends that all
evidence of the payment continued to be suppressed during his
direct appeal and post-conviction appeals and was not “finally
revealed” until the evidentiary hearing in the § 2255 Proceeding.
(ECF No. 25-1 at 10.) He argues that his attempts to investigate
facts related to the payment through Freedom of Information Act and
Tennessee Public Records Act requests “were either denied or
yielded a very limited production of data.” (Id. at 10-11.)
Thomas contends that this new evidence of the payment to
Jackson gives him good cause to seek additional discovery for his
Brady claims, false-testimony claims, actual-innocence claims, and
claims of ineffective assistance of trial and appellate counsel.
(Id. at 2-3.) He argues that the payment was made several years
prior to the state trial, that Jackson testified twice during the
state-court

trial

that

“she

had

not

received

a

‘reward’

in

connection with her testimony against Thomas,” that the prosecution
withheld information about the payment, and that the prosecution
used Jackson’s false testimony to bolster her credibility. (Id. at
2,

8-9.)

Thomas

specifically

contends

requested

that

that
the

in

two

State

motions,
disclose

his
“any

counsel
and

all

considerations or promises of consideration given to or made on
behalf of prosecution witnesses” (id. at 6 (quoting ECF No. 1-4 at
PageID 141-50)) and the trial court instructed the State to inform

13

defense

counsel

“of

any

deals

that

might

have

been

made

or

consideration given in exchange for any testimony” (id. (quoting
ECF No. 25-5 at PageID 8114:13-15)). Thomas contends that the State
responded that it would advise defense counsel promptly of any
consideration given or promises made and that defense counsel had
access to open-file discovery. (Id.) Thomas argues that his defense
counsel’s primary strategy at trial was to attack Jackson’s motives
for testifying and that the State’s case “hinged on the jury’s
perception of Angela Jackson’s credibility.” (Id. at 7.)
A.

Discovery Related to Specific Claims
1.

Brady

Under Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
“Evidence is material if there is a reasonable probability that,
had the evidence been disclosed to the defense, the outcome of the
case would have been different.” Wogenstahl v. Mitchell, 668 F.3d
307, 323 (6th Cir. 2012) (quoting Wilson v. Parker, 515 F.3d 682,
701 (6th Cir. 2008)) (internal quotation marks omitted). To prevail
on a Brady claim, a petitioner must establish that (1) “the
evidence at issue [is] favorable to the accused, either because it
is exculpatory, or because it is impeaching”; (2) “the evidence
[was] suppressed by the State, either willfully or inadvertently”;

14

and (3) “prejudice . . . ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999); accord Bell v. Bell, 512 F.3d 223, 240 (6th
Cir. 2008).
Thomas requests leave to conduct the following discovery to
support his Brady claim:
(1)

any and all deals between Angela Jackson (and any
other fact witness in Thomas’s trial) and federal
and/or state authorities in connection with her
cooperation and testimony in Thomas’s federal and
state trials;

(2)

the Safe Streets Task Force’s justification for
making the $750 payment to Angela Jackson;

(3)

the process by which Scott Sanders requested
approval for the payment to Angela Jackson and
received authorization to do so;

(4)

the monetary source(s) of the payment to Angela
Jackson;

(5)

the legal authority for the Safe Streets Task Force
to make such a payment to a fact witness in a
criminal trial;

(6)

how often the federal and state law enforcement
authorities in Memphis were making similar payments
to fact witnesses in criminal trial at that time;

(7)

whether that practice has
present and its prevalence;

(8)

whether the federal and state law enforcement
authorities in Memphis have any guidelines,
criteria or memoranda outlining when and under what
authority such a payment can and should be made to
a fact witness in a criminal trial; and

(9)

the composition, relationship, and respective roles
of the state and federal law enforcement agencies
that comprise the Safe Streets Task Force.

15

continued

into

the

(ECF No. 25-1 at 14-15.) Thomas argues that he has good cause for
discovery related to his Brady claim because specific factual
allegations about the payment from the Safe Streets Task Force to
Jackson provide “reason to believe that full development of the
facts will enable Thomas to demonstrate that he is entitled to
relief.” (ECF No. 25-1 at 12-13.) Thomas asserts that the State
never informed him or his counsel that Jackson had received any
payment in connection with her testimony in the federal trial
despite the State’s independent duty to disclose such information,
specific requests from Thomas’s counsel to do so, and the court’s
pre-trial instruction to disclose any deals or consideration. (Id.
at 13.)
Respondent argues that the information requested could not
form the basis of relief “because knowledge of the action of
federal agents is not imputed to the State.” (ECF No. 26 at 3.) He
asserts that Brady does not impose an affirmative duty on the
government to discover information that it does not possess. (Id.
at 4-5.) Respondent argues that Thomas has not made a prima facie
showing that the Safe Streets Task Force consisting of state and
federal agents worked as one prosecutorial team in relation to his
prosecution. (Id. at 5.) Respondent argues that the allegation in
the instant Motion that a joint task force paid Jackson contradicts
Thomas’s Petition, which alleges that Jackson’s payment for her
federal-court testimony came from the FBI. (Id.) Respondent also

16

argues that Thomas cannot show that the information requested is
material because Thomas alleges only that Jackson had a motivation
to testify in the federal trial and has not alleged a rationale as
to why this evidence would have been exculpatory for purposes of
the state trial. (Id. at 6.) Respondent contends that the payment
would not have been material in light of the eyewitness accounts
and video evidence showing Thomas committed the murder and robbery
and the fact that Jackson used the proceeds Thomas gave her to open
a bank account two days later. (Id.)
In

response

to

Respondent’s

argument

regarding

imputing

information known by a federal agency to the State, Thomas asserts
that Respondent fails to acknowledge that the Safe Streets Task
Force is not simply a federal entity, but a “conglomeration of
federal and state law enforcement agencies.” (ECF No. 25-1 at 13.)
Thomas states that his discovery is targeted to “understanding the
precise relationship and operations of the Safe Streets Task Force
and showing that, as a multi-agency coalition, the Safe Streets
Task Force is unquestionably bound by the rule set forth in Brady.”
(Id.

at

13-14.)

probability

that

Thomas

argues

[Jackson’s]

that

“there

credibility

is
would

a

reasonable
have

been

irreparably damaged in the eyes of the jury” if they had known of
the payment. (Id. at 14.) Further, he argues that should discovery
lead to evidence that other witnesses received payments beyond the
statutorily allocated amount, all of the witness statements taken

17

by the Safe Streets Task Force in connection with the Thomas
investigation could be subject to attack on the basis of the
witnesses’ credibility. (Id.; see ECF No. 29 at 5-6.)
Respondent

argues

that

Thomas’s

requests

are

over-broad

because they do not list the specific state agencies or the
specific individuals from whom he seeks the information. (ECF
No. 26 at 7.) Respondent contends that Thomas seeks a “blank check
to depose, at his discretion, any individual in law enforcement or
fitting within an undefined task force.” (Id.) Respondent argues
that there is no evidence that the Safe Streets Task Force “is a
concrete agency with a physical location, address or officers who
could respond to his requests.” (Id.) Respondent contends that
Thomas’s requests “fan well beyond the scope of this case”; are not
limited in terms of time frame, issues, or parties; and are
irrelevant

to

the

extent

they

seek

the

process

and

legal

justification for the compensation of witnesses. (Id.) Respondent
asserts that Thomas fails to allege specific facts as to what
information he will uncover or how the information will assist
specific claims and presents no factual basis to demonstrate that
he will learn anything more than what he already knows. (Id.)
2.
Thomas’s

False Testimony
second

ground

for

relief

addressed

the

State’s

proffer of and failure to correct “Jackson’s false testimony that

18

she had not received any payment or other benefit in connection
with her testimony against Thomas.” (ECF No. 25-1 at 15.)
A Brady violation can also arise from the prosecution’s
knowing use at trial of perjured testimony. See Kyles v. Whitley,
514 U.S. 419, 433 (1995) (citing United States v. Agurs, 427 U.S.
97, 103-04 (1976)). “To prove that the prosecutor’s failure to
correct false testimony violated [Thomas’s] due process rights,
[he] must demonstrate that: (1) the statement was actually false;
(2) the statement was material; and (3) the prosecution knew it was
false.” Wogenstahl, 668 F.3d at 323 (quoting Rosencrantz v. Lafler,
568 F.3d 577, 583-84 (6th Cir. 2009)) (internal quotation marks
omitted). “A conviction obtained by the knowing use of perjured
testimony must be set aside if the false testimony could . . . in
any

reasonable

likelihood

have

affected

the

judgment

of

the

jury . . . .” Id. (alterations in original) (quoting Rosencrantz,
568 F.3d at 583) (internal quotation marks omitted).
Thomas argues that good cause for discovery exists because (1)
Jackson’s testimony at the state trial was “indisputably false”;
(2) Jackson’s testimony was material because the jury would have
questioned the veracity of Jackson’s story if it had known of the
payment; and (3) the prosecution knew or should have known of the
task force payment and that Jackson’s testimony was false. (ECF No.
25-1 at 16-17.)

19

In support of the false-testimony claim, Thomas requests leave
to

conduct

the

following

discovery:

“(1)

any

discussion

or

knowledge of the state or federal law enforcement authorities
regarding

Angela

determination
testimony.”

Jackson’s

made

by

those

false

testimony;

entities

[and]

relating

to

(2)

that

any
false

(Id. at 17.)

Respondent

argues

that

the

same

standard

for

imputing

knowledge to the State applies to Thomas’s false-testimony claims.
(ECF No. 26 at 4.) He asserts that Thomas does not allege that the
prosecution

had

actual

knowledge

of

any

false

testimony

or

exculpatory evidence. (Id. at 4-5.)
3.

Actual Innocence

Thomas argues that he is actually innocent of any crime
connected with the Walgreens robbery. (ECF No. 25-1 at 18; see ECF
No. 1 at 36-60.) Thomas argues, based on House v. Bell, 547 U.S.
518 (2006), that he would have to make “‘a truly persuasive
demonstration’

of

actual

innocence

based

upon

‘all

the

evidence’ . . . without regard to whether it would necessarily be
admitted

under

‘rules

of

admissibility

that

would

govern

at

trial.’” (ECF No. 25-1 at 18 (alteration in original) (quoting
House, 547 U.S. at 537-38, 554).) Thomas argues that he has good
cause for discovery regarding the payment to Jackson, any deal she
struck, and her motivations to testify against Thomas because
Thomas is factually innocent; was not a participant in the robbery;

20

and

Bond

admitted

that

Bobby

Jackson,

not

Thomas,

was

his

accomplice. (Id. at 18-19.)
Respondent

argues

that

actual

innocence

has

never

been

recognized as a cognizable claim by the United States Supreme
Court. (ECF No. 26 at 8); see Herrera v. Collins, 506 U.S. 390, 417
(1993). Respondent argues that in Schlup v. Delo, 513 U.S. 298
(1995), the Supreme Court stated that a Herrera free-standing
actual-innocence claim would fail “unless the federal habeas court
is itself convinced that those new facts unquestionably establish
[the petitioner’s] innocence.” (Id. at 8 (quoting Schlup, 513 U.S.
at 317).) Respondent argues that Thomas has not alleged specific
evidence that could be obtained in discovery that would strengthen
his actual-innocence claim. (Id.)

Respondent notes that Jackson

has been cross-examined about her motives in several proceedings
and that her prior testimony on cross-examination mitigates the
need for a deposition. (Id. at 9.)
4.

Ineffective Assistance of Counsel

Thomas argues that the Tennessee post-conviction courts denied
relief on his claims of ineffective assistance of trial and
appellate

counsel

because

Jackson

independently

provided

“overwhelming” evidence of his guilt. (ECF No. 25-1 at 20.) He
asserts that discovery regarding the payment to Jackson and her
motivation to testify would strengthen his ineffective-assistance

21

claims and demonstrate that he was prejudiced by his counsel’s
deficiencies at trial and on direct appeal. (Id.)
Respondent argues that Thomas litigated his ineffectiveassistance claim in the state court, and therefore discovery is
precluded by Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which
limits the scope of review on an exhausted claim to the record that
existed in state court when the claim was decided. (ECF No. 26 at
9 (citing Pinholster, 131 S. Ct. at 1401).)
B.
In

Analysis of Discovery Requests
the

instant

Motion

and

supporting

memorandum,

Thomas

outlines the discovery he seeks and provides an attachment to the
Motion with proposed subpoena duces tecum topics and areas of
inquiry. (See ECF No. 25; ECF No. 25-1; ECF No. 25-2.) Thomas
reserved

“the

right

to

supplement

these

requests

should

depositions, documents, or any other discovery reveal cause for
further inquiry.” (ECF No. 25-2 at PageID 8076, 8079, 8082.) Thomas
responds to Respondent’s assertions that the requests are overbroad and unduly specific by stating that the proposed discovery
“was provided simply to give the Court a sense of the types of
inquiries crucial to this habeas petition.” (ECF No. 29 at 2.)8
Thomas asserts that if the Court grants discovery and Thomas
subsequently issues subpoenas or discovery requests, Respondent

8
In his Reply, Thomas argues that these are proposed requests not
subject to challenge by Respondent and have been provided as “a draft outline of
the type of information that Thomas may seek if the motion is granted.” (ECF
No. 29 at 8.)

22

will have an opportunity to challenge the discovery requests at
that time. (Id.)
Habeas Rule 6(b) states, “A party requesting discovery must
provide reasons for the request. The request must also include any
proposed interrogatories and requests for admission, and must
specify any requested documents.” The Habeas Rules place a duty on
the

petitioner’s

counsel

to

specify

what

he

is

seeking

in

discovery. Only with that information can the Court make a good
cause determination. See Habeas Rule 6(b) advisory comm. notes,
(1976 Adoption, Subdivision (b)) (stating the discovery requests
must accompany the motion “to advise the judge of the necessity for
discovery and enable him to make certain that the inquiry is
relevant and appropriately narrow”). In the interest of both
judicial economy and in the spirit of Habeas Rule 6, the Court will
address only the specific discovery requests and topics of inquiry
proposed by Thomas in his submission filed at ECF No. 25-2.
Further, despite Thomas’s reservation of the right to supplement
these requests, there is no right to discovery in a habeas case,
and any request for additional discovery must be made by motion to
the Court.
1.
Thomas

Safe Streets Task Force
argues

that

there

is

no

dispute

that

a

multi-

jurisdictional, multi-agency task force named the “Safe Streets
Task Force” investigated the Walgreens robbery. (ECF No. 29 at 2-

23

4.) Thomas cites trial testimony from Memphis Police Department
(“MPD”) Officer Chad Golden that the Safe Streets Task Force is a
multi-jurisdictional task force comprised of officers and agents
from the MPD, the Shelby County Sheriff’s Department (“SCSD”), the
United States Marshal’s Service, and possibly a member of the
Collierville Police Department. (Id. at 2-3 (citing ECF No. 12-19
at PageID 2100-01).) Golden testified that the Safe Streets Task
Force “investigat[ed] crimes that fall under the Hobbs Act —
specifically bank robberies — any crimes that affect interstate
commerce or . . . thefts of money that’s insured by the FDIC.” (ECF
No. 12-19 at PageID 2101:3-6.) At the evidentiary hearing in the
§ 2255 proceeding, Sanders testified that he investigated the
Walgreens murder as part of the Safe Streets Task Force, which was
established by the FBI and was comprised of officers from the MPD,
the SCSD, the FBI, and the Marshal’s Service. (ECF No. 24-1 at
PageID 7933:10-15.) Thomas argues that “[t]he Safe Streets Task
Force was exclusively involved in investigating the shooting and
robbery of James Day.” (ECF No. 29 at 4.) He contends that under
Brady, a “prosecutor is presumed . . . to have knowledge of all
information gathered in connection with his office’s investigation
of the case” and “has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case,
including the police.” (Id. (alteration in original) (quoting
United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998))

24

(internal quotation marks omitted).) Thomas contends that because
the

Safe

Streets

Task

Force

was

the

law-enforcement

agency

investigating the crime, the state prosecutors had an obligation to
learn of any Brady material, including the payment to Jackson. (Id.
at 5.) Thomas argues that he has good cause for discovery related
to

his

false-testimony

claims

to

determine

the

facts

and

circumstances of the $750 payment because he has been denied his
right to potentially impeaching evidence. (Id. at 5-6.) Thomas
argues that additional discovery regarding the $750 payment could
elucidate his actual-innocence claim. (Id. at 6-7.) Thomas further
argues that the $750 payment is not the basis of a new claim of
ineffective assistance of counsel, but rather new factual evidence
that could directly support his claim on habeas review. (Id. at 8.)
Thomas seeks leave to subpoena the following documents from
the Safe Streets Task Force:
a.

All documents and communications that refer to,
reflect, or concern the creation of the Safe
Streets Task Force.

b.

All documents and communications that refer to,
reflect, or concern the composition of the Safe
Streets Task Force from January 1, 1997 through the
present.

c.

All documents and communications that refer to,
reflect,
or
concern
the
regulations
and/or
procedures of the Safe Streets Task Force from
January 1, 1997 through the present.

d.

All documents and communications that refer to,
reflect, or concern the funding of the Safe Streets
Task Force.

25

e.

All documents and communications that refer to,
reflect, or concern the manner in which cases are
assigned to the Safe Streets Task Force.

f.

All documents and communications that refer to,
reflect, or concern collaboration between he [sic]
Safe Streets Task Force and any state law
enforcement agency, state district attorneys’
office, or any other state agency or employee.

g.

All documents and communications that refer to,
reflect, or concern the average caseload, and the
caseload at the time of the Thomas investigation,
of the Safe Streets Task Force.

h.

All documents and communications that refer to,
reflect,
or
concern
the
exact
composition,
including number and identities of each member, of
the Safe Streets Task Force that investigated the
Thomas case.

i.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to Angela Jackson.

j.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to any witness who testified at
Thomas’s federal or state trial.

k.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to any witness from January 1,
1997 through the present.

l.

All documents and communications that refer to,
reflect, or concern any custom or practice of the
Safe Streets Task Force regarding the payment of
witnesses from January 1, 1997 through the present.

m.

All documents and communications that refer to,
reflect, or concern the investigation of the Thomas
case by the Safe Streets Task Force.

n.

All documents and communications that refer to,
reflect, or concern the interactions between the
Safe Streets Task Force and any other law

26

enforcement agency, prosecutor’s office, or other
state or federal government agency or employee.
o.

All documents and communications that refer to,
reflect, or concern any payments made by the
Memphis
office
of
the
Federal
Bureau
of
Investigation to any witness from January 1, 1997
through the present.

p.

All documents and communications that refer to,
reflect, or concern any payments made by the
Memphis office of the Department of Justice, United
States Attorney, or any other federal agency or
employee to any witness from January 1, 1997
through the present.

q.

All documents and communications that refer to,
reflect, or concern any discussion related to the
testimony of Angela Jackson at either Thomas’[s]
state trial or Thomas’[s] federal trial.

(ECF No. 25-2 at PageID 8076-8077 ¶¶ (A)(1)(a)-(q).)
Thomas

proposed

the

following

areas

of

inquiry

for

deposition of the Safe Streets Task Force:
a.

The circumstances surrounding the foundation of the
Safe Streets Task Force, as well as its composition
and any regulations or procedures that govern it.

b.

Any payments, deals, compensation or incentives
offered or provided to any witnesses that testified
for the prosecution in Thomas’s federal trial,
whether
offered
in
connection
with
their
cooperation in the investigation of the Walgreens
robbery
or
for
testimony
at
trial.
The
circumstances surrounding that transaction or
offer, including the amount, date, location, legal
foundation, source of money or authorization for
the deal, process of approval and reason for each
payment, deal or compensation.

c.

Any and all payments, deals, compensation or
incentives offered or provided to Angela Jackson in
connection with the investigation of the Walgreens
robbery and her subsequent testimony against Andrew
Thomas during his federal trial.
27

the

d.

The individuals who interacted with Angela Jackson
in connection with the investigation of the
Walgreens robbery and her subsequent testimony
against Andrew Thomas before the grand jury and at
trial, including their present-day or last known
contact information if available.

e.

The individuals who had a role in formulating,
approving and offering the $750 payment to Angela
Jackson in connection with her role in the
investigation
of
the
Walgreens
robbery
and
subsequent testimony against Andrew Thomas during
his federal trial.

f.

The monetary source(s) of the $750 payment to
Angela Jackson in connection with her role in the
investigation
of
the
Walgreens
robbery
and
subsequent testimony against Andrew Thomas during
his federal trial.

g.

The legal foundation for the authorization of the
$750 payment to Angela Jackson in connection with
her role in the investigation of the Walgreens
robbery and subsequent testimony against Andrew
Thomas during his federal trial.

h.

The date, location and amount [sic] any payment
made to Angela Jackson pursuant to 28 U.S.C.
§ 1821(b), as well as the identity of any
individuals who were involved with the request,
approval and/or tender of any such payment.

i.

Any and all legal foundations for your office to
make payments to witnesses who cooperate with
investigations or testify at trial beyond 28 U.S.C.
§ 1821(b), as well as the procedures or regulations
governing the application for any such payment to
be made and the individuals who are responsible for
approving and distributing any such payment.

j.

The individuals who received payments from your
office in connection with their cooperation with a
criminal investigation or trial during the years
1997-2001 other than a payment pursuant to 28
U.S.C. § 1821(b), including the legal foundation
for making those payments and the present-day or
last known contact information if available.

28

k.

The individuals who received payments from your
office in connection with their cooperation with a
criminal investigation or trial during the past
three years (2009-present) other than a payment
pursuant to 28 U.S.C. § 1821(b), including the
legal foundation for making those payments and the
present-day or last known contact information if
available.

l.

Any guidelines, criteria or memoranda maintained by
your office that outline when and under what
authority and process such a payment can and should
be made to a witness in connection with their
cooperation with a criminal investigation or trial,
as well as the individual(s) responsible for
supervising that process in 1998 and the individual
who is presently responsible for supervising that
process.

m.

All documents relating to the provision of
information about the $750 payment to Angela
Jackson to state authorities in anticipation of
Thomas’s state trial, as well as any individuals
who were responsible for providing such information
to the state authorities in anticipation of that
trial.

(Id. at PageID 8077-8078 ¶¶ (A)(2)(a)-(m).)
A prosecutor has a duty to learn of any favorable evidence
known

to

investigating

agents

or

officers

assigned

to

the

prosecution team. Kyles, 514 U.S. at 437-38; see Avellino, 136 F.3d
at 255 (“[K]nowledge on the part of persons employed by a different
office of the government does not in all instances warrant the
imputation of knowledge to the prosecutor, for the imposition of an
unlimited duty on a prosecutor to inquire of other offices not
working with the prosecutor’s office on the case in question would
inappropriately

require

us

to

adopt

‘a

monolithic

view

of

government’ that would ‘condemn the prosecution of criminal cases
29

to a state of paralysis.’” (quoting United States v. Gambino, 835
F. Supp. 74, 95 (E.D.N.Y. 1993))). Brady, however, “does not impose
an affirmative duty upon the government to take action to discover
information which it does not possess.” United States v. Graham,
484 F.3d 413, 417 (6th Cir. 2007) (quoting United States v. Beaver,
524 F.2d 963, 966 (5th Cir. 1975)) (internal quotation marks
omitted).
In Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010), the United
States Court of Appeals for the Sixth Circuit refused to impute
knowledge

of

the

key

witness’s

plea

agreement

with

federal

prosecutors where there was no evidence that the state learned of
the plea agreement and no evidence of any consideration given to
the witness in exchange for his testimony. Goff, 601 F.3d at 47576. If there is evidence of a joint investigation between state and
federal authorities, however, the knowledge of the payment may be
imputed to the prosecution using a case-by-case analysis. United
States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979); see Taus v.
Senkowski, 293 F. Supp. 2d 238, 247 (E.D.N.Y. 2003) (“Were a joint
investigation and prosecutorial enterprise engaged in by the F.B.I.
and a district attorney’s office, it might be appropriate to impute
knowledge of all F.B.I. reports to a state prosecutor . . . .”);
see also United States v. Risha, 445 F.3d 298, 303-306 (3d Cir.
2006) (finding the possibility of a Brady violation where the state
and federal forces were engaged in a joint investigation). The

30

United States Court of Appeals for the Third Circuit articulated
the following three factors in its “cross-jurisdiction constructive
knowledge” analysis:
(1) whether the party with knowledge of the information
is acting on the government’s “behalf” or is under its
“control”; (2) the extent to which state and federal
governments are part of a “team,” are participating in a
“joint investigation,” or are sharing resources; and (3)
whether the entity charged with constructive possession
has “ready access” to the evidence.
United States v. Reyeros, 537 F.3d 270, 282 (3d Cir. 2008) (quoting
Risha, 445 F.3d at 304) (internal quotation marks omitted).
Thomas has demonstrated good cause for discovery related to
the Safe Streets Task Force and the investigation of the Walgreens
robbery

to

determine

whether

a

joint

investigation

and/or

prosecution was conducted relevant to Thomas’s Brady claim. Thomas
is

entitled

to

discovery

to

demonstrate

what

law-enforcement

agencies were involved in the investigation of the Walgreens
robbery and determine whether knowledge of the payment can be
imputed to the state prosecutors. Thomas is, therefore, GRANTED
leave to subpoena all documents and communications that refer to,
reflect, or concern the following:
•

the exact composition, including number and identities of each
member, of the Safe Streets Task Force that investigated the
Thomas

case

(the

Walgreens

¶ (A)(1)(h));

31

robbery)

(see

ECF

No.

25

•

any payments made by the Safe Streets Task Force to Angela
Jackson (see id. ¶ (A)(1)(i));

•

the investigation of the Thomas case (the Walgreens robbery)
by the Safe Streets Task Force (see id. ¶ (A)(1)(m)); and

•

any

discussion

related

to

Jackson’s

testimony

at

either

Thomas’s state trial or Thomas’s federal trial (see id.
¶ (A)(1)(q)).
Thomas has demonstrated good cause for the following documents
to the extent that the requests are limited to Thomas’s case and
the investigation of the Walgreens robbery: document requests for
all documents and communications that refer to, reflect, or concern
the

composition

of

the

Safe

Streets

Task

Force

(see

id.

¶

(A)(1)(b)); the collaboration between the Safe Streets Task Force
and any state law-enforcement agency, state district-attorneys’
office,

or

any

other

state

agency

or

employee

(see

id.

¶

(A)(1)(f)); and interactions between the Safe Streets Task Force
and any other law-enforcement agency, prosecutor’s office, or other
state-

or

federal-government

agency

or

employee

(see

id.

¶

(A)(1)(n)) are GRANTED IN PART, to the extent Thomas limits his
requests to his case and the investigation of the Walgreens
robbery, and DENIED IN PART, to the extent that Thomas’s requests
exceed the scope defined in the Court’s Order.
Many

of

Thomas’s

document

requests

are

over-broad,

not

appropriately limited in time frame, and seek information for which

32

Petitioner has not demonstrated good cause. The discovery requests
are DENIED for all documents and communications related to the
creation (see ECF No. 25-2 ¶ (A)(1)(a)), regulations and procedures
(see

id.

¶ (A)(1)(c)), funding (see

id.

¶ (A)(1)(d)), case-

assignment procedures (see id. ¶ (A)(1)(e)), and the average case
load or the case load at the time of the Walgreens investigation
(see id. ¶ (A)(1)(g)) of the Safe Streets Task Force. Further, the
discovery requests for documents and communications related to
payments made by the Safe Streets Task Force to any witness who
testified at Thomas’s state or federal trial (see id. ¶ (A)(1)(j));
payments made by the Safe Streets Task Force to any witness from
January 1, 1997 through the present (see id. ¶ (A)(1)(k)); any
custom or practice of the Safe Streets Task Force about the payment
of witnesses from January 1, 1997, through the present (see id.
¶ (A)(1)(l)); payments made by the Memphis office of the FBI to any
witness

from

January

1,

1997

through

the

present

(see

id.

¶ (A)(1)(o)); payments made by the Memphis office of the Department
of Justice, United States Attorney, or any other federal agency or
employee to any witness from January 1, 1997 through the present
(see id. ¶ (A)(1)(p)) are DENIED.
Thomas has not demonstrated good cause to take the depositions
of Safe Streets Task Force members involved in the investigation of
the Walgreens robbery and the payment made to Jackson. Thomas has
knowledge of the payment, its timing, and source. His burden is to

33

establish that the state prosecutors either had knowledge of the
payment or that knowledge can be imputed to the State. Petitioner
has been granted discovery of Safe Street Task Force documents, see
supra

pp.

31-33.

At

this

time,

however,

Petitioner

has

not

presented sufficient factual information to establish good cause to
take the depositions of unspecified Safe Street Task Force members.
Thomas’s request to take the deposition of Safe Street Task Force
members (ECF No. 25-2 ¶ (A)(2)) is, therefore, DENIED.
2.

State Law-Enforcement Agencies and Prosecutors

Thomas seeks leave to subpoena the following documents from
unspecified state law enforcement agencies and prosecutors:
a.

All documents and communications that refer to,
reflect, or concern the creation of the Safe
Streets Task Force.

b.

All documents and communications that refer to,
reflect, or concern the composition of the Safe
Streets Task Force from January 1, 1997 through the
present.

c.

All documents and communications that refer to,
reflect,
or
concern
the
regulations
and/or
procedures of the Safe Streets Task Force from
January 1, 1997 through the present.

d.

All documents and communications that refer to,
reflect, or concern the funding of the Safe Streets
Task Force.

e.

All documents and communications that refer to,
reflect, or concern the manner in which cases are
assigned to the Safe Streets Task Force.

f.

All documents and communications that refer to,
reflect, or concern collaboration between he [sic]
Safe Streets Task Force and any state law

34

enforcement agency, state district attorneys’
office, or any other state agency or employee.
g.

All documents and communications that refer to,
reflect, or concern the average caseload, and the
caseload at the time of the Thomas investigation,
of the Safe Streets Task Force.

h.

All documents and communications that refer to,
reflect,
or
concern
the
exact
composition,
including number and identities of each member, of
the Safe Streets Task Force that investigated the
Thomas case.

i.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to Angela Jackson.

j.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to any witness who testified at
Thomas’s federal or state trial.

k.

All documents and communications that refer to,
reflect, or concern any payments made by the Safe
Streets Task Force to any witness from January 1,
1997 through the present.

l.

All documents and communications that refer to,
reflect, or concern any custom or practice of the
Safe Streets Task Force regarding the payment of
witnesses from January 1, 1997 through the present.

m.

All documents and communications that refer to,
reflect, or concern the investigation of the Thomas
case by the Safe Streets Task Force.

n.

All documents and communications that refer to,
reflect, or concern the interactions between the
Safe Streets Task Force and any other law
enforcement agency, prosecutor’s office, or other
state or federal government agency or employee.

o.

All documents and communications that refer to,
reflect, or concern any payments made by the
Memphis police department to any witness from
January 1, 1997 through the present.

35

p.

All documents and communications that refer to,
reflect, or concern any payments made by the
Memphis district attorneys’ office or any other
state agency or employee to any witness from
January 1, 1997 through the present.

q.

All documents and communications that refer to,
reflect, or concern any discussion related to the
testimony of Angela Jackson at either Thomas’[s]
state trial or Thomas’[s] federal trial.

(ECF No. 25-2 at PageID 8079-8080 ¶¶ (B)(1)(a)-(q).)
Thomas

proposed

the

following

areas

of

inquiry

for

deposition of state law-enforcement agencies and prosecutors:
a.

The circumstances surrounding the foundation of the
Safe Streets Task Force, as well as its composition
and any regulations or procedures that govern it.

b.

Any guidelines, criteria or memoranda maintained by
your office that pertain to the maintenance of
information, files and records generated by the
State [sic] Street [sic] Task Force, including
documents that pertain to access to those files and
records by state law enforcement entities and
prosecutors.

c.

Any payments, deals, compensation or incentives
known to have been offered or provided to any
witnesses that testified for the prosecution in
Thomas’s
federal
trial,
whether
offered
in
connection
with
their
cooperation
in
the
investigation of the Walgreens robbery or for
testimony at trial. The circumstances surrounding
that transaction or offer, including the amount,
date, location, legal foundation, source of money
or authorization for the deal, process of approval,
reason and date your agency came to know of each
payment, deal or compensation.

d.

Any payments, deals, compensation or incentives
offered or provided to any witnesses that testified
for the prosecution in Thomas’s state trial,
whether
offered
in
connection
with
their
cooperation in the investigation of the Walgreens
robbery
or
for
testimony
at
trial.
The
36

the

circumstances surrounding that transaction or
offer, including the amount, date, location, legal
foundation, source of money or authorization for
the deal, process of approval and reason for each
payment, deal or compensation.
e.

Any and all payments, deals, compensation or
incentives offered or provided to Angela Jackson in
connection with the investigation of the Walgreens
robbery and her subsequent testimony against Andrew
Thomas in his state or federal trial.

f.

The individuals who interacted with Angela Jackson
in connection with the investigation of the
Walgreens robbery and her subsequent testimony
against Andrew Thomas in his state and federal
trials, including their present-day or last known
contact information if available.

g.

The individuals who had a role in formulating,
approving and offering the $750 payment to Angela
Jackson in connection with her role in the
investigation
of
the
Walgreens
robbery
and
subsequent testimony against Andrew Thomas during
his federal trial.

h.

The monetary source(s) of the FBI’s $750 payment to
Angela Jackson in connection with her role in the
investigation
of
the
Walgreens
robbery
and
subsequent testimony against Andrew Thomas during
his federal trial.

i.

The legal foundation for the FBI’s authorization of
the $750 payment to Angela Jackson in connection
with her role in the investigation of the Walgreens
robbery and subsequent testimony against Andrew
Thomas during his federal trial.

j.

Any and all legal foundations for your office to
make payments to witnesses who cooperate with
investigations or testify at trial, as well as the
procedures or regulations governing the application
for any such payment to be made and the individuals
who are responsible for approving and distributing
any such payment.

k.

All individuals who received payments from your
office in connection with their cooperation with a
37

criminal investigation or trial during the years
1997-2001, including the legal foundation for
making those payments and the present-day or last
known contact information if available.
l.

All individuals who received payments from federal
law
enforcement
authorities
in
Memphis
in
connection with their cooperation with a criminal
investigation or trial during the years 1997-2001,
including the legal foundation for making those
payments and the present-day or last known contact
information if available.

m.

All individuals who received payments from your
office in connection with their cooperation with a
criminal investigation or trial during the past
three years (2009-present), including the legal
foundation for making those payments and the
present-day or last known contact information if
available.

n.

All individuals who received payments from federal
law
enforcement
authorities
in
Memphis
in
connection with their cooperation with a criminal
investigation or trial during the past three years
(2009-present), including the legal foundation for
making those payments and the present-day or last
known contact information if available.

o.

Any guidelines, criteria or memoranda maintained by
your office that outline when and under what
authority and process such a payment can and should
be made to a witness in connection with their
cooperation with a criminal investigation or trial,
as well as the individual(s) responsible for
supervising that process in 1998 and the individual
who is presently responsible for supervising that
process.

p.

Any guidelines, criteria or memoranda maintained by
your office that outline the process or procedure
under which your agency or state prosecutors would
and can request information from federal law
enforcement entities relating to upcoming criminal
trials in state court.

q.

All documents in your possession relating to the
FBI’s $750 payment to Angela Jackson before
38

Thomas’s state trial, as well as any individuals
who were responsible for obtaining such information
from the federal authorities in anticipation of
that trial.
r.

Any and all impeachment and/or exculpatory evidence
furnished to Thomas’s counsel prior to his state
trial.

s.

Any impeachment and/or exculpatory evidence that
was not furnished to Thomas’s counsel prior to his
state trial. For all pieces of evidence listed,
provide a full explanation for why that evidence
was not disclosed to Thomas’s counsel.

(ECF No. 25-2 at PageID 8080-8082 ¶¶ (B)(2)(a)-(s).)
The Court finds Thomas has not demonstrated why subpoenas to
unspecified

state

law-enforcement

agencies,

personnel,

and

prosecutors would provide the information needed to support his
claims. Testimony in the § 2255 proceeding indicated that the MPD,
SCSD,

and

possibly

an

officer

from

the

Collierville

Police

Department were involved in the Safe Streets Task Force, see supra
p. 24. The proposed document requests are duplicative of the
requests for the Safe Streets Task Force. For the same reasons
stated supra pp. 32-34, Thomas’s proposed document requests in ECF
No. 25-2 ¶¶ (B)(1)(a), (B)(1)(c)-(e), (B)(1)(g), (B)(1)(k)-(l), and
(B)(1)(o)-(p) are DENIED.
Thomas is, however, GRANTED leave to serve subpoenas on the
MPD, the SCSD, and the Shelby County District Attorney to obtain
documents described in the requests in ECF No. 25-2 ¶¶ (B)(1)(h)(i); (B)(1)(m); (B)(1)(j); and (B)(1)(q) to the extent the requests
are limited to witnesses who testified at the state trial; and
39

(B)(1)(b), (B)(1)(f), and (B)(1)(n) to the extent that the request
is limited to the investigation of Thomas’s case. Thomas’s document
requests are DENIED IN PART to the extent that the requests exceed
the scope defined in the Court’s Order.
Thomas has been granted discovery of documents from the MPD,
the SCSD, and the Shelby County District Attorney, see supra pp.
39-40. At this time, however, Thomas has not presented sufficient
factual information to establish good cause to take the depositions
of unspecified state law enforcement agencies, personnel, and
prosecutors. Thomas’s request to take the depositions of state law
enforcement agencies, personnel, and prosecutors (ECF No. 25-2
¶ (B)(2)) is, therefore, DENIED.
3.

Angela Jackson

Thomas seeks leave to subpoena the following documents from
Jackson:
a.

All documents and communications that refer to,
reflect, or concern any payment(s) received by You
from the Safe Streets Task Force.

b.

All documents and communications that refer to,
reflect, or concern any interaction between You and
the Safe Streets Task Force.

c.

All documents and communications that refer to,
reflect, or concern any interaction between You and
any federal or state government agency or employee,
including but not limited to, the state and federal
prosecutors, Memphis police department, and the
Memphis
office
of
the
Federal
Bureau
of
Investigation.

40

(ECF No. 25-2 at PageID 8082 ¶¶ (C)(1)(a)-(c).) The Court finds
Thomas

has

demonstrated

good

cause

for

the

documents

and

communications requested in ¶¶ (C)(1)(a)-(b) and ¶ (C)(1)(c) for
documents and communications between Jackson and state government
agencies, employees, and prosecutors and the MPD. Accordingly, the
requests
¶

in

(C)(1)(c)

¶¶
is

(C)(1)(a)-(b)
GRANTED

IN

are

PART,

to

GRANTED.
the

The

extent

request
Thomas

in

seeks

documents and communications between Jackson and state agencies and
prosecutors,

and

DENIED IN PART,

to the extent Thomas seeks

documents and communications between Jackson and federal entities.
Thomas proposed the following areas of inquiry for the Jackson
deposition:
a.

Any contact between you and any law enforcement
officer with regard to the Walgreens robbery,
including when that contact occurred, who those
officers were, where you were, and what you
discussed.

b.

All conversations you had with U.S. Marshal Scott
Sanders
relating
to
the
Walgreens
robbery,
including where possible, the dates or approximate
dates of those conversations, where you spoke and
what you discussed.

c.

The extent to which any federal or state officer
ever told you that you may have criminal liability
based on your conduct in connection with the
Walgreens robbery, including who told you that, and
what was said in the conversation.

d.

The extent to which any federal or state officer
ever told you that you could avoid prosecution for
anything you did in connection with the Walgreens
robbery if you cooperated with the investigation of
the robbery, or testified against Andrew Thomas or
Anthony Bond at trial, including who told you that,
and what was said in the conversation.
41

e.

All offers of compensation, payment, reward or any
other deal that you received in connection with the
investigation of the Walgreens robbery or your
testimony against Andrew Thomas in either his
federal and state trials. State whether those
offers were made before or after your testimony,
what you had to do to receive the benefit of the
offer, which offers you actually accepted, and what
you actually received as a result.

f.

Any and all meetings you had with state and federal
law enforcement agents and prosecutors after you
testified in Andrew Thomas’s federal trial.

g.

All circumstances surrounding your receipt of the
$750 payment from the FBI in December 1998. State
what did you do to earn that payment, when did you
learned [sic] that the payment was going to be
made, who paid you the money, and where did you go
to claim the money.

h.

What you did with the $750 that was paid to you by
the FBI, including when and where you spent the
money.

i.

Whether you were paid any additional funds other
than the $750, including, if applicable, how much,
what you did to earn the payment, when you learned
the payment was going to be made, who paid you the
money, and where you went to claim the money.

j.

Your yearly income for each year from 1997 through
2001, as well as the sources of that income.

k.

Any debt you carried above $500 for any part of the
years 1997 through 2001. Describe the origin of
that debt, as well as if and how you discharged it,
and the source of the money you used to pay it off.

(ECF No. 25-2 at PageID 8083 ¶¶ (C)(2)(a)-(k).)
The Court finds Thomas has demonstrated good cause to take
Jackson’s deposition to support his Brady and false-testimony
claims. The proposed areas of inquiry in ECF No. 25-2 ¶¶ (C)(2)(h)
and (C)(2)(j)-(k), however, are irrelevant to Thomas’s habeas

42

claims, and Thomas has not demonstrated good cause to address this
subject matter in a deposition. Accordingly, Thomas’s request is
DENIED IN PART to the extent he may not address the proposed areas
of inquiry at ECF No. ¶¶ (C)(2)(h) and (C)(2)(j)-(k). Thomas’s
request is GRANTED IN PART to the extent Thomas’s counsel may take
Jackson’s videotaped deposition limited to the proposed areas of
inquiry identified at ECF No. 25-2 ¶¶ (C)(2)(a)-(g) and (C)(2)(i)
before the Court within sixty (60) days of the entry of this Order.
Counsel

shall

schedule

the

deposition

with

the

Court’s

manager.
IT IS SO ORDERED, this 30th day of September, 2013.

/s/ Jon P. McCalla
U.S. DISTRICT COURT JUDGE

43

case