Bean v. Sussex I State Prison

Filing 35

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 09/14/2017. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

RHETT BEAN,

Petitioner,
V.

Civil Action No. 3:16CV803

SUSSEX I STATE PRISON,

Respondent.
MEMORANDUM OPINION

Rhett Bean, a Virginia state prisoner proceeding pro se, filed this petition for habeas

corpus under 28 U.S.C. § 2254 ("§2254 Petition," ECF No. 3) challenging his convictions in the
Circuit Court for the City of Portsmouth, Virginia ("Circuit Court"). On July 18, 2017, the

Magistrate Judge issued a Report and Recommendation wherein he recommended denying
Bean's § 2254 Petition as barred by the statute of limitations. (ECF No. 33.) The Magistrate

Judge also issued a Memorandum Order wherein he, inter alia, denied Bean's Motion for
Discovery and Motion to Appoint Counsel to Assist in Discovery. (ECF No. 32.) Bean has filed

objections. (ECF No. 34.) For the reasons that follow. Bean's objections will be OVERRULED,
the Report and Recommendation will be ACCEPTED and ADOPTED, and the action will be
DISMISSED.

I.

THE REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendation:
A.

Procedural History and Bean's Claims

Following a bench trial on October 25, 2012, Bean was convicted of one
count of rape and one count of object sexual penetration. (ECF No. 28-1, at 1, 4.)
On July 19, 2013, the Circuit Court entered final judgment and sentenced Bean to
seventy-five years of incarceration, with fifteen years suspended, for rape and

seventy-five years of incarceration, with fifteen years suspended, for object sexual
penetration. {Id. at 1-2.) The Circuit Court directed that Bean's sentences run
concurrently. {Id. at 1.)

Bean appealed to the Court of Appeals of Virginia, arguing that the
evidence was insufficient to support his convictions. (ECF No. 1-1, at 1.) On
December 30, 2013, the Court of Appeals of Virginia denied Bean's appeal. {Id.)
With respect to the sufficiency of the evidence, the Court of Appeals stated:
So viewed, the evidence proved that on October 31, 2011,

appellant and the victim had sexual intercourse. The victim was
sixteen years old at the time, and appellant, a friend of the victim's
mother, spent the previous night in the residence. The victim
testified that, in the morning, appellant took her brother to the bus
stop and then returned to the residence. Appellant went to the
victim's room when the two were alone together, and appellant
began saying "nasty things." The victim testified appellant "just

jumped on [her] and he stuck his fingers into [her] vagina and then
he took his fingers out and then he placed his penis into [her]
vagina . . . ." She described how she attempted to "fight him off
and explained appellant "pushed [her] chest dovm very hard" until
she "just gave up from there."
Afterwards, the victim told appellant to call her mother and

appellant said that "something jumped into [him]" and he did not
mean to do it. Appellant then left the residence. A short time
later, the victim's mother and an ambulance arrived. The victim
was examined at the hospital.
The victim's mother testified that appellant called her that

day and said that he had "done something really bad." The
victim's mother heard her daughter crying in the background and
asked appellant what had happened. Appellant repeated that he
had done something bad and stated she just had to come home.
After the victim's mother took the victim to the hospital, appellant

again called her on the phone. She allowed a police officer to
listen to the conversation. Appellant repeatedly apologized, stated
he "want[ed] to make this right," and offered to give her money
and his car. He offered to "pay for [the victim] to go to therapy for
the rest of her life," and begged her not to contact the police.
Appellant admitted having intercourse with the victim, but
claimed it was consensual. He also denied inserting his fingers
into her vagina.
Here, the trial court believed the victim's version of the

events and rejected appellant's testimony. The trial court
specifically noted that although the victim's account of the incident
was inconsistent in part with earlier accounts, the victim provided
a consistent description of the acts and "explained anything that

has been the least bit different." The court also noted the victim's

testimony was corroborated in part by her mother's testimony and
that appellant's statements in the calls to the victim's mother were
"the most incriminating thing in this case. . ,
In its role of
judging witness credibility, the trier of fact is entitled to disbelieve
a defendant's self-serving testimony and conclude that he is lying
to conceal his guih. Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998). The victim described
"hitting [appellant] with [her] fists, trying to push him off of [her]"
and explained how she resisted appellant, demonstrating appellant
accomplished the unwanted penetration through the use of force.
The record supports the trial court's credibility determination.
The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of rape and object
sexual penetration.

{Id. at 1-4 (alterations in original).) On October 6, 2014, the Supreme Court of
Virginia refused Bean's petition for appeal. {Id. at 5.)
On June 15, 2015, Bean filed a petition for a writ of habeas corpus with
the Circuit Court. (ECF No. 28-1, at 4.) On November 25, 2015, the Circuit
Court denied Bean's petition. {Id. at 18-19.) On July 6, 2016, the Supreme Court
of Virginia dismissed Bean's petition for appeal pursuant to Rule 5:9(a) of the
Rules of the Supreme Court of Virginia, concluding that "the appeal was not
perfected in the manner provided by law because [Bean] failed to file the notice of
appeal[.]" {Id at 20.)

Bean dated his initial § 2254 Petition August 15, 2016.' (ECF No. 1, at
5.)^ To the extent that Bean asserts this is the date he placed his initial § 2254
Petition in the prison mailing system for mailing to this Court, the Court finds
Bean's assertion to be incredible. The envelope in which Bean mailed his initial §

2254 Petition is postmarked September 16, 2016 {id. at 6), and the Court did not
receive Bean's initial § 2254 Petition until September 19, 2016 {id. at 2). The
Court believes that Bean mailed his initial § 2254 Petition in September 2016.
Nevertheless, as discussed infra, even using August 15, 2016 as the date when
Bean filed his § 2254 Petition, the § 2254 Petition is untimely. Thus, the Court

' Bean did not submit his initial § 2254 Petition on the standardized form used by
this Court. By Memorandum Order entered on October 13, 2016, the Court
directed the Clerk to mail the standardized form to Bean and directed Bean to

complete and return the form to the Court within eleven (11) days of the date of
entry thereof. (ECF No. 2, at 1.) The Court received Bean's standardized § 2254
Petition on October 21, 2016. (ECF No. 3.)

^ The Court utilizes the pagination assigned to Bean's submissions by the
CM/ECF docketing system. The Court corrects the spelling and capitalization in
quotations from Bean's submissions.

utilizes August 15, 2016 as the filed date. See Houston v. Lack^ 487 U.S. 266,
276 (1988). In his § 2254 Petition, Bean asserts the following claims for relief:
Claim One

"Trial counsel provided ineffective assistance of counsel in

violation of the United States 6"^ Amend Constitution." (§ 2254
Pet. 5.)

Claim Two

"The sentencing counsel did [not] bring to the court's attention that
I was convicted without the bill of particulars accompanying the

indictment 6*^ Amend violation." {Id. at 11.)
ClaimThree "Appeal counsel did not raise the fact that the bill of particulars
was omitted from trial no made a record to raise the issues that I

was convicted on an uncharged offense violation of 6'*^ Amend of
U.S. Constitution right to counsel." {Id. at 12.)
Claim Four

B.

"Insufficient evidence." (/c/. at 14.)

Analysis
1.

Statute of Limitations

Respondent contends that the federal statute of limitations bars Bean's
claims.

Section 101 of the Antiterrorism and Effective Death Penalty Act

("AEDPA") amended 28 U.S.C. § 2244 to establish a one-year period of
limitation for the filing of a petition for a writ of habeas corpus by a person in

custody pursuant to the judgment of a state court.

Specifically, 28 U.S.C.

§ 2244(d) now reads:

1.

A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant

to the judgmentof a State court. The limitation period shall
run from the latest of—

(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is

removed, if the applicant was prevented from filing
by such State action;

(C)

the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or

(D)

2.

the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
The time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.

28 U.S.C. § 2244(d).

2.

Commencement and Running of the Statute of Limitations

The Supreme Court of Virginia refused Bean's petition for appeal on
October 6, 2014. Bean's convictions became final on Monday, January 5, 2015,
when the time to file a petition for a writ of certiorari expired. See Hill v.
Braxton, 111 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period

begins running when direct review of the state conviction is completed or when
the time for seeking direct review has expired . . . ." (citing 28 U.S.C.
§ 2244(d)(1)(A))); Sup. Ct. R. 13(1) (requiring that a petition for certiorari be
filed within ninety days of entry of judgment by the state court of last resort or of
the order denying discretionary review). The limitation period began to run on
January 6, 2015, and 160 days of the limitation period elapsed before Bean filed
his state petition for a writ of habeas corpus on June 15, 2015.
3.

Statutory Tolling

To qualify for statutory tolling, an action must be a (1) properly filed (2)
post-conviction or other collateral review of (3) the pertinent judgment. 28
U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and
acceptance are in compliance with the applicable laws and rules governing
filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). These rules and laws "usually
prescribe, for example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the requisite filing
fee." Id. (footnote omitted) (citing cases).
For Bean, the limitation period was tolled from June 15, 2015, when Bean

filed his state habeas petition, until November 25, 2015, when the Circuit Court
denied his state habeas petition. Bean lacks entitlement to statutory tolling for the

period during which he pursued his appeal from the denial of his state petition
because the Supreme Court of Virginia dismissed the appeal on the ground that
Bean had not timely filed a notice of appeal. See Bolding v. Dep 7 of Corr., No.
3:10CV660, 2011 WL 2471557, at *2 (E.D. Va. June 21, 2011) (citing Rodgers v.

Angelone, 113 P. Supp. 2d 922, 929-30 (E.D. Va. 2000));
Escalante v.
Watson, 488 F. App'x 694, 699 (4th Cir. 2012) (refusing to toll limitation period
for the time period when the inmate's defective petition for appeal was pending
before the Supreme Court of Virginia). Accordingly, the limitation period

recommenced upon the denial of Bean's state habeas petition by the Circuit Court
on November 25, 2015 and ran for 263 more days, until Bean filed his § 2254
Petition on August 15, 2016.
Because a total of 423 days ran until Bean filed his § 2254 Petition, the
statute of limitations bars his § 2254 Petition. Bean does not suggest any

plausible basis for a belated commencement of the limitation period under 28
U.S.C. § 2244(d)(l)(B)-(D) or equitable tolling. Instead, Bean argues that his
actual innocence excuses his failure to file in a timely manner.
4.

Actual Innocence

The Supreme Court has recognized actual innocence as a basis for
overcoming the expiration of the statute of limitations. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013) (explaining that "actual innocence, if
proved, serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar ... or ... expiration of the statute of limitations").
"Claims of actual innocence, whether presented as freestanding ones or merely as

gateways to excuse a procedural default, should not be granted casually." Wilson
V. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (citations omitted). Here, the Court
reviews Bean's arguments under the more lenient standard for gateway actual
innocence claims, because subscribing to Bean's actual innocence claim would
permit the Court to consider the merits of his otherwise time-barred habeas
petition.

A gateway claim requires a petitioner to present "new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence—that was not presented at trial." Schlup v. Delo, 513
U.S. 298, 324 (1995). "Because such evidence is obviously unavailable in the

vast majority of cases, claims of actual innocence are rarely successful." Id. If a
petitioner meets the burden of producing new, truly reliable evidence of his or her
innocence, the Court then considers "'all the evidence,' old and new,

incriminating and exculpatory, without regard to whether it would necessarily be
admitted under 'rules of admissibility that would govern at trial,"' and determines

whether the petitioner has met the standard for a gateway claim of innocence.
House V. Belh 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327-28).
The Court must determine "whether 'it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v.
Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28).
"The Court need not proceed to this second step of the inquiry unless the

petitioner first supports his or her claim with evidence of the requisite quality."
Hill V. Johnson, No. 3:09cv659, 2010 WL 5476755, at *5 (E.D. Va. Dec. 30,
2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997);
Feaster v. Beshears, 56 F. Supp. 2d 600, 610 (D. Md. 1999)). Moreover, actual
innocence means factual innocence and not just legal insufficiency. Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (citation omitted).
Here, Bean's assertion of actual innocence is not coupled with any new
evidence of his actual innocence. Rather, Bean supports his assertion of

innocence with the same arguments and based upon the same testimony that he

presented at trial, which is that he had consensual intercourse with the victim.

(Resp. 2, ECF No. 20.)^ Bean also contends that his conviction is void "because
the bill of particulars statement of facts did not accompany the indictment which
means the reasonable doubt standard was not applied to my specific charges."

(§2254 Pet. 17; see Resp. 1-2.) Bean's bare assertion of innocence and his
rehashing of his trial testimony and legal arguments simply fail to excuse the
untimeliness of his § 2254 Petition. See Lowe v. Zook, No. 3:15CV631, 2016 WL
3912035, at *4 (E.D. Va. July 19, 2016 (citing Hill, 2010 WL 5476755, at *5).
Accordingly, it is RECOMMENDED that Respondent's Motion to Dismiss (ECF
No. 16) be GRANTED and that Bean's § 2254 Petition be DENIED as barred by
the statute of limitations.

C.

Outstanding Motions

Bean has filed a Motion to Strike Respondent's pleadings, essentially
because he disagrees with various statements made by Respondent. (ECF No.
21.) Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may
"strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Granting a motion to
strike under Rule 12(f) is within the sound discretion of the Court. See GTSI
Corp. V. Wildflower Ml, Inc., No. I:09cvl23, 2009 WL 2160451, at *4 (E.D. Va.
July 17, 2009). "To grant a Rule 12(f) motion, the court must determine that the
challenged allegations are 'so unrelated to the plaintiffs claims as to be unworthy
of any consideration as a defense and that their presence in the pleading
throughout the proceeding will be prejudicial to the moving party.'" Grant v.
Bank ofAm., N.A., No. 2:13-CV-342, 2014 WL 792119, at *2 (E.D. Va. Feb. 25,
2014) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1380 (2d ed. 1990)). Bean's disagreement with Respondent's
statements fails to satisfy his burden under Rule 12(f). Accordingly, it is
RECOMMENDED that Bean's Motion to Strike (ECF No. 21) be DENIED.
Bean has also filed a Motion for Summary Judgment, arguing that he is

actually innocent of his crimes of conviction. (ECF No. 22.) As discussed supra,
the Court has concluded that Bean's § 2254 Petition is barred by the statute of
limitations and that Bean fails to establish that his alleged actual innocence

permits the Court to reach the merits of his time-barred petition. Accordingly, it

^ Bean has also submitted copies of the discovery provided to the defense during
his criminal proceedings. "Some circuits require the petitioner to present 'newly
discovered' evidence as opposed to evidence that is merely 'newly presented.'"
Lee V. Johnson, No. 2:10cvl22, 2010 WL 3937334, at *5 n.9 (E.D. Va. July 28,

2010); see Royal v. Taylor, 188 F.3d 239, 244 (4th Cir. 1999) (noting that to
demonstrate actual innocence, a petitioner must produce new evidence that was
not available at the time of trial). Here, all the exhibits submitted by Bean are
neither newly discovered nor newly presented, as they existed at the time of
Bean's trial in October 2012 and were available for presentation by the defense at
that time.

is RECOMMENDED that Bean's Motion for Summary Judgment (ECF No. 22)
be DENIED.

Bean has also filed a Motion for Judicial Estoppel, requesting that

Respondent be judicially estopped from "switching up on . . . the time frame in
which [Respondent] contends a rape & object sexual penetration occurred in this
case." (ECFNo. 23, at 9.) "Judicial estoppel is a principle developed to prevent a
party from taking a position in a judicial proceeding that is inconsistent with a
stance previously taken in court." Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir.
2007). The United States Court of Appeals for the Fourth Circuit has stated that:
"Three elements must be satisfied before judicial estoppel will be

applied." First, the party to be estopped must be advocating a
position inconsistent with one taken in prior litigation. "Second,
the prior inconsistent position must have been accepted by the
court." Finally, the party against whom judicial estoppel is
asserted must have intentionally misled the court in order to gain
unfair advantage."

U.S. Bank Nat'I Ass'n v. Zarrabi, 560 F. App'x 181, 182 (4th Cir. 2014) (quoting
Zinkland, 478 F.3d at 638) (internal citations omitted). Bean has not
demonstrated that Respondent intentionally misled the Circuit Court in any way.
Moreover, the Court has not relied upon any timeline presented by Respondent in
determining that Bean's § 2254 Petition is time-barred. Accordingly, it is
RECOMMENDED that Bean's Motion for Judicial Estoppel (ECF No. 23) be
DENIED.

Finally, Bean has filed a Request for an Evidentiary Hearing. (ECF
No. 29.) The decision to grant an evidentiary hearing is left to the "sound
discretion of district courts." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A
federal court must consider whether the evidentiary hearing would provide the

petitioner the opportunity to "prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief" Id. at 474; see Mayes v.
Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000). The court must also consider the

standards prescribed by section 2254 when considering whether an evidentiary
hearing is appropriate. Schriro, 550 U.S. at 474. Here, Bean's § 2254 Petition is
time-barred, and Bean has not presented any evidence to support his gateway
claim of actual innocence. Therefore, it is RECOMMENDED that his Request

for an Evidentiary Hearing (ECF No. 29) be DENIED.
D.

Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court GRANT

Respondent's Motion to Dismiss (ECF No. 16) and DISMISS Bean's claims. It is
further RECOMMENDED that Bean's § 2254 Petition (ECF No. 3), Motion to

Strike (ECF No. 21), Motion for Summary Judgment (ECF No. 22), Motion for
Judicial Estoppel (ECF No. 23), and Request for a Evidentiary Hearing (ECF

No. 29) be DENIED.

It is further RECOMMENDED that the action be

DISMISSED.

(Report and Recommendation 1-10 (alterations in original).)
11.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

"The magistrate makes only a recommendation to this court. The recommendation has

no presumptive weight, and the responsibility to make a final determination remains with this
court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber,

423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions

of the report or specified proposed findings or recommendations to which objection is made." 28
U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to
focus attention on those issues—factual and legal—that are at the heart of the parties' dispute."
Thomas v. Arn, 474 U.S. 140, 147 (1985).

When reviewing the magistrate's recommendation,

this Court "may also receive further evidence." 28 U.S.C. § 636(b)(1).
III.

BEAN'S OBJECTIONS

As an initial matter, Bean wholly failed to comply with the directive set forth in the

Report and Recommendation that his objections be in the form of a numbered list. Despite
Bean's failure to comply with the Court's directive, and without the benefit of the numbered list,
the Court construes Bean to raise four objections.

Bean first objects to the fact that the Magistrate Judge "did not make a recommendation
as to the request [Bean] made for the Court to determine the correct issue the Court was called

upon to answer under the indictment and information made up by the state. Nor does the Court
cite any law as to why the conviction[s] are not void as a matter of law." (Objs.

The

Magistrate Judge concluded that Bean's § 2254 Petition was barred by the statute of limitations

^ The Court utilizes the pagination assigned to Bean's objections by the CM/ECF docketing
system. The Court corrects the spelling in quotations from Bean's objecfions.

and therefore did not address the merits of Bean's claims. Bean's objection fails to "direct the

court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citations omitted). Accordingly, Bean's first objection
will be OVERRULED.

Next, Bean objects to the Magistrate Judge's definition of the term "'new evidence' as

'newly discovered evidence.'" (Objs. 3.) According to Bean, "[t]he term new evidence as
tak[en] in context mean[s] the evidence is new to the subject of inquiry which is innocence."

(Jd.) He contends that "[t]he term 'new evidence' must be used to cover wrongly excluded and
unavailable evidence at the time of trial." {Id.) Bean argues that under his understanding of the

term "new evidence," the Magistrate Judge erred by not considering evidence which was never

presented at trial and that was included with his § 2254 Petition.

In the Report and Recommendation, the Magistrate Judge noted that "[a] gateway claim

requires a petitioner to present 'new reliable evidence—^whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—^that was not presented
at trial.'" (Report and Recommendation 7 (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995).)

The Magistrate Judge also concluded that "all of the exhibits submitted by Bean are neither
newly discovered nor newly presented, as they existed at the time of Bean's trial in October 2012
and were available for presentation by the defense at that time." (Id, at 8 n.3.) The Court
discerns no error from the Magistrate Judge's conclusion regarding Bean's failure to establish a

gateway claim of actual innocence.

Accordingly, Bean's second objection will be

OVERRULED.

As his third objection, Bean challenges the Magistrate Judge's recommendation

regarding Bean's Motion for Summary Judgment. Bean faults the Magistrate Judge for "not

10

apply[ing] the correct standard of review because [he] did not reach the merits of [Bean's]
Motion for Summary Judgment." (Objs. 4.) In his Motion for Summary Judgment, Bean argued

that he was actually innocent of his crimes of conviction. (ECF No. 22.) The Magistrate Judge
did not address the merits of Bean's Motion for Summary Judgment because he "concluded that

Bean's § 2254 Petition is barred by the statute of limitations and that Bean fails to establish that

his alleged actual innocence permits the Court to reach the merits of his time-barred petition."
(Report and Recommendation 9.) Because the Magistrate Judge correctly concluded that Bean's

§ 2254 Petition is time-barred, he did not err by not addressing the merits of Bean's Motion for
Summary Judgment. Accordingly, Bean's third objection will be OVERRULED.

Bean's final objection is to the Magistrate Judge's Memorandum Order wherein he
denied Bean's Motion for Discovery and Motion to Appoint Counsel to Assist in Discovery.

According to Bean, "[t]he Court is under the false impression that [he is] seeking discovery to

get 2254 habeas relief. Discovery is sought to develop sufficient facts that would allow [him] to
bypass the procedural bar which is a different issue than habeas relief as contemplated by 2254."
(Objs. 5.)

In denying Bean's Motions, the Magistrate Judge stated:
Bean has also filed a Motion for Discovery. (ECF No. 24.) Bean seeks
the location of the Pizza Hut from which he and the victim ordered pizza on the
date of the incident; the victim's mother's phone records; Bean's phone number at
the time of the incident; the exact time 911 was called; lab notes created by the

Department of Forensic Science; results of testing of any stains from the victim's
sheets; and the victim's school records. {Id. at 11-12.) Bean contends that he

requires these items so that he can locate evidence to demonstrate that he is
actually innocent of his convictions. {Id. at 12.)
Rule 6(a) of the Rules Governing Section 2254 Cases provides that "[a]
judge may, for good cause, authorize a party to conduct discovery under the
Federal Rules of Civil Procedure. . . ." Rules Governing § 2254 Cases R. 6(a).
Good cause for discovery under Rule 6(a) is shown "where 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[] entitled to relief." Bracy v.
11

Gramley, 520 U.S. 899, 908-09 (1997) (citation omitted). Rather than providing
specific allegations to suggest that he is entitled to relief, it appears that Bean
desires to engage in a fishing expedition to locate evidence he believes would
support his claim of innocence. Bean therefore fails to demonstrate good cause to
warrant discovery. Accordingly, his Motion for Discovery (ECF No. 24) is
DENIED.

Finally, Bean has filed a Motion to Appoint Counsel to Assist in
Discovery. (ECF No. 25.) No constitutional right to have appointed counsel in
post-conviction proceedings exists. Mackall v. Angelone, 131 F.3d 442, 449 (4th
Cir. 1997). The Court, however, may appoint counsel to a financially eligible
person if justice so requires. See 18 U.S.C. § 3006A(a)(2)(B). Bean fails to
demonstrate that the interests of justice warrant the appointment of counsel at this

juncture. Accordingly, Bean's Motion to Appoint Counsel to Assist in Discovery
(ECF No. 25) is DENIED.

(ECF No. 32, at 2-3.) The Magistrate Judge correctly concluded that Bean failed to provide
specific allegations to suggest that he is entitled to relief and that he failed to demonstrate that
the appointment of counsel was warranted.

Accordingly, Bean's final objection will be

OVERRULED.

IV.

CONCLUSION

For the foregoing reasons. Bean's objections will be OVERRULED. The Report and
Recommendation (ECF No. 33) will be ACCEPTED and ADOPTED. The Motion to Dismiss
(ECF No. 16) will be GRANTED. Bean's Motions (ECF Nos. 21, 22, 23, 29) will be DENIED.

Bean's § 2254 Petition (ECF No. 3) will be DENIED. Bean's claims and the action will be
DISMISSED. A certificate of appealability will be DENIED.

An appropriate Order will accompany this Memorandum Opinion.

D.,.:

Richmond, Virginia

John A. Gibney, Jr.

United StatesDisti^t Ji

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