The opinion of the court was delivered by: Chief Judge Susan J. Dlott
ORDER GRANTING HASAN LEAVE TO OBTAIN LIMITED DISCOVERY
On April 22, 2003, Petitioner Siddique Abdullah Hasan filed a Petition for Writ of Habeas Corpus ("Habeas Petition"). (Doc. 16.) Magistrate Judge Merz has recommended denying the Habeas Petition. Pending before the Court are Magistrate Judge's Report and Recommendations on the Merits ("R&R") (doc. 81); the Magistrate Judge's Supplemental Report and Recommendations ("Supp. R&R") (doc. 119); and Petitioner's Objections to the R&R and Supp. R&R (docs. 91, 122).
Petitioner raises certain discovery and evidentiary-related issues in his Objections. This Court held an oral argument hearing to discuss the discovery and evidentiary issues on October 20, 2011. The discovery and evidentiary issues relate to two sets of claims. The first set of claims-the Eighth, Ninth, and Tenth Grounds for Relief asserted in the Habeas Petition-were procedurally defaulted by Hasan in state court. The second set of claims-the Third, Fourth, and Nineteenth Grounds for Relief asserted in the Habeas Petition-were denied on the merits in state court. Each set of claims will be addressed separately below.
I. STANDARDS FOR DISCOVERY IN HABEAS CASES
A habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Stanford v. Parker,266 F.3d 442, 460 (6th Cir. 2001). Discovery is available only at the discretion of the court and for good cause shown. Rule 6(a), Rules Governing § 2254 Cases in the U.S. Dist. Cts., 28 U.S.C. foll. § 2254 ("Habeas Rules"). Habeas Rule 6 is consistent with the principle that a court must provide discovery in a habeas proceeding only "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,520 U.S. at 908--09 (quoting Harris v. Nelson,394 U.S. 286, 300 (1969)); see also Williams v. Bagley,380 F.3d 932, 974 (6th Cir. 2004) (same). "The burden of demonstrating the materiality of the information requested is on the moving party." Williams, 380 F.3d at 974 (quoting Stanford,266 F.3d at 460). Although a petitioner is not required to demonstrate that discovery would unquestionably lead to relief, "vague and conclusory assertions are not sufficient under Rule 6 and a petitioner may not embark on a fishing expedition intended to develop claims for which there is no factual basis." Payne v. Bell,89 F. Supp. 2d 967, 970 (W.D. Tenn. 2000); see also Williams, 380 F.3d at 974 (stating that Rule 6 does not sanction fishing expeditions).
II. PROCEDURALLY DEFAULTED CLAIMS
Petitioner seeks discovery and an evidentiary hearing to support his Eighth, Ninth, and Tenth Grounds for Relief. Petitioner alleges as follows in the Habeas Petition:
Trial counsel were ineffective for failing to investigate and present witnesses which [sic] could have affirmatively confronted the state's case that Petitioner orchestrated the 1993 prison riot and ultimately maintained a leadership role throughout its course and ordered the killing of a guard in violation of the Sixth and Fourteenth Amendments.
Petitioner's attorney's [sic] were ineffective when they failed to investigate and cross[-]examines [sic] state's witnesses which would have dispelled the state's theory that Petitioner orchestrated the 1993 prison riot and ultimately maintained a leadership role throughout its course and ordered the killing of a guard in violation of the Sixth and Fourteenth Amendments.
Tenth Ground for Relief The trial prosecutors suppressed exculpatory evidence by failing to disclose to trial counsel the change in testimony by numerous inmate witnesses in violation of the Fourteenth Amendment. (Doc. 16 at 43, 57, 64.)
A. Actual Innocence Gateway
Petitioner concedes that these claims are procedurally defaulted. However, he argues that he is actually innocent of the murder of correctional officer Robert Vallandingham ("CO Vallandingham") and that his actual innocence serves as cause to excuse his procedural default. Habeas petitioners in federal court can use actual innocence as a gateway to excuse procedural default arising at the state level. House v. Bell, 547 U.S. 518, 536--37 (2006); Schlup v. Delo, 513 U.S. 298, 315--16 (1995). "A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt . . . ." House, 547 U.S. at 538. "[I]f a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Schlup, 513 U.S. at 316. The district court is not to make "an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House, 547 U.S. at 538.
The Supreme Court took care to emphasize in House that the actual innocence procedural gateway required "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324). However, a district court's review is not limited to the new evidence. Id. Rather, the district court should consider "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." Id. at 538 (quotations omitted).
B. Evidence in the Record Concerning Actual Innocence Gateway
Petitioner relies on evidence attached to the Appendix to the Return of Writ ("ROW Apx.") in support of his actual innocence gateway claim. The evidence consists primarily of affidavits and excerpts from the testimony of other Lucasville prison inmates. (ROW Apx. Vol. VI-A at 169--71, 178--205, 252--70, 448; Id. Apx. Vol. VI-B at 76--116; Id. Apx. Vol. VI-C at 118--19; Doc. 28 Exs. A, B, and D; Doc. 84 Ex. 2 at 19--20; Id. Ex. 5 at 8--12; Id. Ex. 6 at 7--15; Id. Ex. 9 at 1--4.) Hasan contends that this evidence supports a finding that inmate Anthony Lavelle, a leader of the Black Gangster Disciples, and two other inmates, Alvin Jones and Kenneth Law, killed CO Vallandingham. (Doc. 110 at 7--9 (summarizing evidence).) In particular, Petitioner points to affidavits in which inmate Kenneth Law, who testified against Hasan at his trial, recanted his trial testimony that Hasan had directed the murder of CO Vallandingham. Instead, Law pinned the murder on inmate Lavelle in a post-trial affidavit. (Doc. 28-3.) Hasan contends further that the evidence already in the record supports a finding that he did not control or lead the riot from its inception through the time of the murder of CO Vallandingham. (Doc. 110 at 10--11.) Finally, he asserts that the record establishes that the State used coercive techniques to secure testimony from other inmates against him. (Id. at 11--13.) The Court need not and does not at this time make a determination of whether this evidence already in the record is reliable and sufficient to establish the actual innocence gateway.
C. Discovery Sought Regarding Actual Innocence Gateway
Hasan also seeks to conduct additional discovery to support his actual innocence gateway claim. He seeks the following discovery:
The deposition of Mark Piepmeier, Lead Special Prosecutor, regarding how decisions were made as to offering deals, what deals were made, what deals were rejected, and efforts made on behalf of testifying witnesses after entering into the agreement with the State of Ohio;
The deposition of Richard Gibson, Petitioner's Trial Prosecutor (same as above); The deposition of Gerald Krumpelbeck, Petitioner's Trial Prosecutor (same as above);
Records deposition of the Office of Special Prosecutor for any and all records related to the offer of any deal whether accepted or rejected, and any documents related to the Special Prosecutor's actions as a result of any accepted deal. Further, the grand jury testimony of any ...