Cole v. Davis

Filing 29

ORDER entered: For the reasons discussed above, the court denies Coles's discovery request without prejudice. Cole may reurge his discovery motion, if necessary, after Respondent has filed an answer in this case. Under the parties' agreed scheduling order (Docket Entry No. 19), Cole will amend his petition within 84 days after this order is entered, or by February 6, 2019. The respondent will file an answer within 90 days after the amended petition is filed, or by May 7, 2019. Cole may file any reply 60 days after that, or by July 6, 2019. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

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United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAIME PIERO COLE,
Petitioner,
VS.
LORIE DAVIS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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November 16, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-940

ORDER
Jaime Piero Cole, an inmate on Texas death row, has filed a federal petition for a writ of
habeas corpus. (Docket Entry No. 10). Cole moves for discovery to develop claims in his habeas
petition. (Docket Entry No. 15). The respondent, Lorie Davis, opposes any discovery. (Docket
Entry No. 23). For the reasons discussed below, the court determines that discovery would be
premature at this time, and the motion is denied.
I.

Background
In 2012, a Texas jury convicted Cole of capital murder for killing his estranged wife and his

15-year-old stepdaughter. After an unsuccessful state direct appeal and habeas corpus application,
Cole filed his federal petition for a writ of habeas corpus on February 6, 2018. (Docket Entry No.
10). Cole’s federal petition raises 15 grounds for relief. They include that trial counsel provided
ineffective representation by not presenting testimony about his Cole’s history of trauma (claim
one); not securing expert assistance (claim two); and not presenting evidence of exposure to
neurotoxins and resultant brain damage (claim three). Other grounds are that trial counsel should
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have objected to the State’s use of peremptory strikes to remove minority prospective jurors (claim
five), and his death sentence is unconstitutional because Texas arbitrarily administers capital
punishment (claim fourteen). Cole exhausted claims one, two, five, and fourteen in state court, but
he raises claim three for the first time in his federal habeas corpus petition.
The parties submitted a joint proposed scheduling order with a deadline for Cole to amend
his habeas petition. (Docket Entry Nos. 11, 12). Cole subsequently filed this motion for discovery.
(Docket Entry No. 15). The court granted the parties’ joint motion to stay the time to amend Cole’s
petition until the discovery motion was resolved. (Docket Entry No. 19).
Cole asks this court to “grant discovery to enable [him] to prove his allegations, which when
proven will entitle him to relief.” (Docket Entry No. 15). Cole’s discovery motion includes the
following requests:
1.

Cole asks for discovery from the Harris County District Attorney’s Office
relating to his prosecution for capital murder. Cole states that he has already
sought material through a state public information request, but he has not yet
received the material. He asserts that this discovery will support claims one
and two.

2.

Cole wants to issue a subpoena requiring Texaco and Chevron to turn over
evidence relating to the pollution of the area near Cole’s home village in
Ecuador. Cole argues that the discovery will support his third ground for
relief.

3.

Cole wants discovery from the D.A.’s Office on any material, including
prosecutor’s notes, that would provide insight into the State’s use of
peremptory strikes. Cole argues that this discovery will support claim five.

4.

Cole wants the D.A.’s Office to disclose information relating to his, and
other, capital cases to demonstrate a pattern of racial discrimination in
prosecution. Cole argues that this discovery would support claim 14.

The respondent opposes the discovery Cole requests. (Docket Entry No. 23). The
respondent contends that the Anti-Terrorism and Effective Death Penalty (“AEDPA”) precludes
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consideration of factual material developed for the first time in the federal habeas court. The
respondent also argues that Cole’s second discovery request should be denied because he did not
exhaust the underlying claim in state court. Cole has filed a reply. (Docket Entry No. 28).1
II.

The Discovery Standard
Civil litigants generally “may obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense and proportional to the needs of the case.” FED. R. CIV. P.
26(b). But “it is clear that there was no intention to extend to habeas corpus, as a matter of right,
the broad discovery provisions” available to other civil litigants. Harris v. Nelson, 394 U.S. 286,
295 (1969).2 Rule 6(a) of the Rules Governing Section 2254 Cases provides the standard governing
discovery in federal habeas cases. Rule 6(a) requires leave of the court before discovery becomes
available. A federal court may authorize discovery only “for good cause” and “may limit the extent
of discovery.” The Supreme Court has tethered the “good cause” clause of Rule 6(a) to an inmate’s
burden to show an entitlement to federal habeas relief, Bracy v. Gramley, 520 U.S. 899, 908-09
(1997), but the Court has not extensively discussed what showing constitutes good cause.
After reviewing the parties’ briefing, the record, and the applicable law, this Court finds that
discovery Cole seeks is premature. The reasons include that federal law discourages discovery in
the early stages of habeas litigation, precedent limits the factual development of habeas claims to

1

Cole acknowledges in his reply that the D.A.’s Office has recently turned over material
relating to his public information requests. Cole presses the discovery request on the ground that the D.A.’s
Office withheld some information under attorney-work-product.
2

The Federal Rules of Civil Procedure apply in habeas cases “to the extent that they are not
inconsistent with any statutory provisions or [the specific habeas] rules . . . .” Rule 12, Rules Governing
Section 2254 Cases in the United States District Courts; see also FED. R. CIV. P. 81(a)(4)(A) (“These rules
apply to proceedings for habeas corpus . . . to the extent that the practice in those proceedings . . . is not
specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255
Cases.”).

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those already adjudicated in state court, Cole has not yet shown that federal review is available for
any unexhausted claims.
III.

The Timing of Discovery
This case is still in the pleading stage of the federal habeas process. Cole has filed a federal

habeas petition, and the court has granted him leave to amend. Discovery is tied to the pleadings,
particularly in habeas litigation, which does not allow discovery as an investigative tool to identify
habeas claims. See Brian R. Means, FEDERAL HABEAS MANUAL § 6:10 (2017) (“Federal district
courts do not have authority to order prepetition discovery in habeas cases, including capital
cases.”); Advisory Committee Notes to Rule 6 (“[R]equests for discovery in habeas proceedings
normally follow the granting of an evidentiary hearing . . . .”); see also Lonchar v. Thomas, 517 U.S.
314, 326 (1996) (discovery is available “once an answer has been ordered”).

The Advisory

Committee Notes to Rule 6 observe that “there may be instances in which discovery would be
appropriate” before an evidentiary hearing, but the purpose of any “pre-hearing discovery [would
be to] show an evidentiary hearing to be unnecessary . . . .” See also Blackledge v. Allison, 431 U.S.
63, 81 (1997) (including discovery among “a variety of measures in an effort to avoid the need for
an evidentiary hearing”); East v. Scott, 55 F.3d 996, 1000-01 (5th Cir. 1995) (discovery is a means
of deciding whether an evidentiary hearing is not necessary).3
Cole has not identified authority designating discovery as a tool for preparing (or in this case,
amending) a federal habeas petition. Cole asks for discovery “to prove his allegations, which when
proven will entitle him to relief.” (Docket Entry No. 15 at 1). At the pleadings stage, the federal

3

Cole himself recognizes that “discovery under Habeas Rule 6 is a pre-hearing, discretionary
measure that provides additional information to the habeas petitioner” (Docket Entry No. 28 at 4).

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habeas rules require a petitioner to state the grounds for relief, not allege all the evidence supporting
it.4 Extensive discovery early in habeas litigation precludes an accurate evaluation of what an
inmate must show to obtain relief, if habeas review is available. See Bracy, 520 U.S. at 904
(recognizing the need to “identify the ‘essential elements’ of [a] claim” before “addressing whether
[a] petitioner is entitled to discovery” under Rule 6); Calderon v. U.S. Dist. Court for the Northern
Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996) (“[A] prisoner must outline factual
allegations in a petition before the district court will be able to determine the propriety of discovery
. . . .”); Mayberry v. Petsock, 821 F.2d 179, 185 (3rd Cir. 1987) (“Unless the petition itself passes
scrutiny, there would be no basis to require the state to respond to discovery requests.”). Until Cole
files his amended petition, and the respondent answers, the court will not have sufficient information
to decide whether an evidentiary hearing is necessary or whether there is good cause for additional
factual development of Cole’s claims. The discovery that Cole seeks is premature at this stage.
IV.

Discovery and Limitations on Habeas Review
The respondent raises two other concerns that support finding it premature to consider the

need for additional factual development through the discovery Cole seeks. First, the respondent
contends that as to the claims Cole has exhausted, this federal court cannot consider evidence that

4

In nonhabeas civil proceedings, a complaint must include only “a short and plain statement
of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule 2 of the federal
habeas rules “requires a more detailed statement.” Mayle v. Felix, 545 U.S. 644, 649 (2005). A petitioner
must “specify all the grounds for relief available” and “state the facts supporting each ground.” Rule 2 of the
Rules Governing Section 2254 Cases in the United States District Courts; see Felix, 545 U.S. at 655 (“A
prime purpose of Rule 2(c)’s demand that habeas petitioners plead with particularity is to assist the district
court in determining whether the State should be ordered to ‘show cause why the writ should not be
granted.’”). The federal habeas rules anticipate that a court will engage in a preliminary review of a habeas
petition before the State must respond to discovery requests. See Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.

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was not before the state courts. Second, the respondent argues that discovery is not available for the
claims that Cole has not presented to the state courts.
A.

Discovery Requests One, Three, and Four: The Exhausted Claims

Cole argues that the information he obtains from his first, third, and fourth discovery requests
will support the habeas claims he exhausted in state court.5 Because the state court “adjudicated
[those claims] on the merits,” AEDPA requires Cole to show that the state decision was “contrary
to, or an unreasonable application of, federal law” under 28 U.S.C. § 2254(d)(1). In Cullen v.
Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a federal court’s AEDPA review may
look only at the facts developed in state court. Pinholster held that “evidence introduced in federal
court has no bearing on § 2254(d)(1) review . . . .” 563 U.S. at 185; see also Williams v. Thaler, 684
F.3d 597, 603 (5th Cir. 2012).
Pinholster explicitly addressed a federal court’s consideration of new facts, but did not
clarify whether AEDPA also confined a federal habeas petitioner’s development of new facts.
Federal precedent has used Pinholster to limit the federal habeas court’s ability to develop new facts
in the federal habeas process. The Fifth Circuit relies on Pinholster as an additional limit on federal
habeas evidentiary hearings, see Evans v. Davis, 875 F.3d 210, 217 n.5 (5th Cir. 2017); Allen v.
Vannoy, 659 F. App’x 792, 810 (5th Cir. 2016); Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011),
and on requests for expert or investigative assistance, see Mamou v. Davis, ___ F. App’x ___, 2018
WL 3492821, at *4 n.3(5th Cir. 2018); Devoe v. Davis, 717 F. App’x 419, 431 (5th Cir. 2018).6 The

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Discovery requests one, three, and four support claims one, two, five, and fourteen.

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The Supreme Court itself has hinted that Pinholster’s limitations permeate the development
of claims on federal habeas review. See Ryan v. Gonzales, 568 U.S. 57, 75 (2013) (finding that the possible
incompetence of a habeas petitioner did not require a stay of federal proceedings because, in part, “[a]ny
(continued...)

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Fifth Circuit has not addressed whether Pinholster limits discovery. The logic behind limiting
factual development through evidentiary hearings and funding, however, applies with equal force
to discovery requests. See Soffar v. Stephens, 2014 WL 12642575, at *2 (S.D. Tex. 2014)
(“Presumably, good cause cannot exist for discovery that would result in evidence a court cannot
consider.”).
Pinhoslter did not bar all new federal habeas factual development. An evidentiary hearing
may be available “where § 2254(d)(1) does not bar federal habeas relief,” either because the claims
“were not adjudicated on the merits in state court,” Pinholster, 563 U.S. at 185, or “the state habeas
court unreasonably applied federal law[.]” Evans, 875 F.3d at 217 n.5; see also Allen, 659 F. App’x
at 810; Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013). But, the Fifth Circuit’s interpretation of
Pinholster suggests that the better practice is first to decide whether an inmate has exhausted a claim
in state court and whether he has met the requirements of § 2254(d)(1) before applying traditional
standards to decide whether discovery is appropriate.7
With that understanding, Pinholster does not completely foreclose the discovery Cole seeks
relevant to his exhausted claims. If Cole can meet § 2254(d)’s requirements, factual development
may be appropriate. See Smith v. Cain, 708 F.3d 628, 634-35 (5th Cir. 2013) (allowing factual

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(...continued)
extrarecord evidence” that his assistance may allow counsel to develop “would . . . be inadmissible” under
Pinholster).
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Various other courts have come to the same conclusion. Cole points to some cases in which
district courts have allowed discovery, Pinholster notwithstanding. But, as one district court observed,“winds
have blown mostly in one direction,” that is, towards finding that “judicial economy demands that Pinholster
be considered in determining whether good cause exists for conducting discovery.” Davis v. Bobby, 2017
WL 2544083, at *3 (S.D. Ohio 2017) (listing cases). Pinholster “begs the question, ‘How can good cause
exist to conduct discovery that, as a matter of law, cannot be used? Put simply, unusable evidence cannot lead
to relief.’” Id.

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development through an evidentiary hearing when an inmate had met the § 2254(d)(1) standard).
At this preliminary step of habeas corpus review, however, it is premature to decide whether Cole
has shown that any state court decision was contrary to, or an unreasonable application of, federal
law.
B.

Discovery Request Two: Unexhausted Claims

Cole argues that his second discovery request will provide information supporting his
argument that trial counsel provided ineffective assistance on his exposure to neurotoxins (claim
three). He did not exhaust this claim in state court. Federal habeas relief is available only if an
inmate has “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
Cole’s failure to exhaust his third claim results in a federal procedural bar. See Keeney v.
Tamayo-Reyes, 504 U.S. 1, 9-10 (1992) (an unexhausted claim is procedurally defaulted for federal
habeas purposes if the claim would now be procedurally barred by state court); Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (same).
A petitioner cannot show good cause for discovery on a claim in a federal court if procedural
impediments preclude considering the merits of that claim. See Rucker v. Norris, 563 F.3d 766, 771
(8th Cir. 2009); Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004); Campbell v. Dretke, 117 F.
App’x 946, 959 (5th Cir. 2004); Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999); Calderon, 144
F.3d at 621; In re Pruett, 133 F.3d 275, 277 n.1 (4th Cir. 1997); see also Thompson v. Stephens,
2014 WL 2765666, at *2 (S.D. Tex. 2014) (“As a threshold matter, however, a court must also take
into account the procedural posture of an inmate’s claims. A petitioner cannot show good cause if
a federal court cannot reach the merits of the disputed claims.”). A petitioner cannot “demonstrate
that he is entitled to relief” when procedural impediments prevent full federal review. Bracy, 520

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U.S. at 908-09.
A federal procedural bar can be overcome. This court could reach the merits of claim three
if Cole can show cause for the default and that actual prejudice has resulted. See Coleman, 501 U.S.
at 750. But it is premature at this stage to find that federal review is available on claim three. The
parties must brief the procedural concerns and substantive importance of claim three before Cole
has shown that he can overcome the procedural bar. Cole’s second discovery request is also
premature.
V.

Conclusion
For the reasons discussed above, the court denies Coles’s discovery request without

prejudice. Cole may reurge his discovery motion, if necessary, after Respondent has filed an
answer in this case.
Under the parties’ agreed scheduling order (Docket Entry No. 19), Cole will amend his
petition within 84 days after this order is entered, or by February 6, 2019. The respondent will file
an answer within 90 days after the amended petition is filed, or by May 7, 2019. Cole may file any
reply 60 days after that, or by July 6, 2019.
SIGNED on November 16, 2018, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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