United States District Court, S.D. Ohio, Eastern Division
C. SMITH, JUDGE
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his November 21, 2014 conviction pursuant to his
“no contest” plea in the Franklin County Court of
Common Pleas on felonious assault. Petitioner asserts that he
was denied a fair trial due to admission of identification
testimony obtained through the use of an unduly suggestive
photo array conducted in violation of O.R.C. § 2933.83
(claim one); and that he was denied a fair trial due to the
improper admission of his incriminating statements to police,
obtained in violation of Miranda v. Arizona, 384
U.S. 436 (1966) (claim two). It is the position of the
Respondent that these claims lack merit.
has filed a Motion for Leave to Conduct Discovery.
(Doc. 11.) Petitioner seeks an order compelling production of
state-court Exhibits A through F, which include the audiotape
of the alleged victim; the audiotape of Petitioner; the
constitutional rights waiver form; the photo array; a
photograph of the victim; and the “first responder
letter.” The State submitted these exhibits during the
hearing on Petitioner's motion to suppress evidence, and
they appear to have been made a part of the record on appeal.
See Decision (Doc. 6-1, PageID# 266-67.) Respondent,
however, opposes Petitioner's discovery request.
Response in Opposition to Motion for Discovery (Doc.
habeas corpus petitioner is not entitled to discovery as a
matter of right. Bracy v. Gramley, 520 U.S. 899
(1997); Stanford v. Parker, 266 F.3d 442, 460 (6th
Cir. 2001). “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.” Rule
6 of the Rules Governing Section 2254 Cases in the United
States District Courts. Under this “good cause”
standard, a district court should grant leave to conduct
discovery in habeas corpus proceedings only if
“‘specific allegations before the court show
reason to believe that the petitioner may, if the facts are
more 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 Standford v. Parker, 266
F.3d 442, 460 (6th Cir. 2001). “The burden of
demonstrating the materiality of the information requested is
on the moving party.” Blankenburg v. Miller,
No. 1:16-cv-505, 2017 WL 3404772, at *1 (S.D. Ohio Aug. 9,
2017) (citing Stanford v. Parker, 266 F.3d 442, 460
(6th Cir. 2001) (citing Murphy v. Johnson, 205 F.3d
809, 813-15 (5th Cir. 2000). “Bald assertions and
conclusory allegations do not provide sufficient grounds to
warrant requiring the government to respond to discovery or
to require an evidentiary hearing.” Thomas v.
United States, 849 F.3d 669, 681 (6th Cir. 2017) (citing
Stanford, 266 F.3d at 460). Where a petitioner fails
to make a “fact specific showing of good cause under
Rule 6, ” the court will deny the discovery request as
a mere fishing expedition. Id.; Williams v.
Bagley, 380 F.3d 932, 974 (6th Cir. 2004).
Rule 7 of the Rules Governing Section 2254 Cases in the
United States District Courts also permits federal habeas
courts to direct the parties to supplement the state-court
record with materials relevant to the Court's resolution
of the petition:
(a) In General. If the petition is not dismissed, the judge
may direct the parties to expand the record by submitting
additional materials relating to the petition. The judge may
require that these materials be authenticated.
(b) Types of Materials. The materials that may be required
include letters predating the filing of the petition,
documents, exhibits, and answers under oath to written
interrogatories propounded by the judge. Affidavits may also
be submitted and considered as part of the record.
(c) Review by the Opposing Party. The judge must give the
party against whom the additional materials are offered an
opportunity to admit or deny their correctness.
the decision whether to order an expansion of the record
under Rule 7 falls within the sound discretion of the
district court. Ford v. Seabold, 841 F.2d 677, 691
(6th Cir. 1988). Such expansion must be limited by the
relevance of the proffered materials to the constitutional
has submitted a copy of the transcript of the hearing on
Petitioner's motion to suppress evidence. (Doc. 6-2.) The
audiotape of Petitioner's interview with police during
the time that he signed the Miranda rights waiver
form and made incriminating statements to police has been
made a part of the transcript of the hearing on the motion to
suppress evidence. (PageID# 356-88; 389-90.) Likewise, the
audiotape made by police of the interview of the alleged
victim, Samuel Lacy (PageID# 346-52), and Lacy's
identification of Petitioner from the photo array, has been
made a part of the transcript of the hearing on the motion to
suppress evidence. (PageID# 420-22.) It also includes
cross-examination by defense counsel on the contents of the
first responder report. (PageID# 443-48.) Therefore, this
information has already been made a part of the record before
the Court. Although Respondent has not provided a copy of the
photo array Petitioner refers to, the state appellate court
rejected Petitioner's claim regarding improper admission
of his identification as the perpetrator, indicating that
“Lacy was clearly certain that he knew his assailant
from the assailant's frequent visits to the Schrock
Tavern.” Decision (Doc. 6-1, PageID# 265.)
Therefore, it does not now appear that a copy of the photo
array used by police will assist Petitioner in establishing
this claim. Moreover, to the extent that Petitioner asserts
that police violated state law, this claim does not provide a
basis for relief. 28 U.S.C. § 2254(a). A federal court
may not issue a writ of habeas corpus “on the basis of
a perceived error of state law.” Pulley v.
Harris, 465 U.S. 37, 41 (1984); Smith v.
Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal
habeas court does not function as an additional state
appellate court reviewing state courts' decisions on
state law or procedure. Allen v. Morris, 845 F.2d
610, 614 (6th Cir. 1988). “‘[F]ederal courts must
defer to a state court's interpretation of its own rules
of evidence and procedure'” in considering a habeas
petition. Id. (quoting Machin v.
Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)).
Petitioner does not indicate, and it does not appear from the
record, the manner in which a photograph of the victim will
assist him in establishing his claims.
because it appears that the information Petitioner seeks has
either already been made a part of the record or will not
assist Petitioner in establishing his claims,
Petitioner's Motion for Discovery (Doc. 11) is