United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION & ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.
the Court is Habeas Petitioner Romell Broom's Motion for
Discovery and/or to Expand the Record and Motion for Funding
for Expert Assistance. (Doc. Nos. 22 and 25, respectively.)
Respondent Warden David Bobby opposes the Motion for
Discovery and/or to Expand the Record. (Doc. No. 26.) Broom
has replied to Respondent's brief in opposition. (Doc.
27.) For the following reasons, the Court denies Broom's
was convicted and sentenced to death in an Ohio state court
for the rape and murder of Tryna Middleton in October 1985.
After the conclusion of state-court appellate and
post-conviction review, Broom filed a Petition for a Writ of
Habeas Corpus in this Court, which another judge on this
Court denied on August 22, 2002. (Case No. 1:99 CV 0030, Doc.
No. 117.) The Sixth Circuit Court of Appeals affirmed this
Court's ruling. Broom v. Mitchell, 441 F.3d 392
(6th Cir. 2006). The Ohio Supreme Court then set Broom's
execution date for September 15, 2009.
execution, however, was not carried out. Despite repeated
attempts over two hours, the execution team could not access
a vein to deliver the lethal injection. See State v.
Broom, 146 Ohio St.3d 60, 61-63 (Ohio 2016). Ultimately,
the Governor granted a reprieve. Id. at 63.
immediately filed an action under 42 U.S.C. § 1983 in
the United States District Court for the Southern District of
Ohio to prevent the State from attempting to execute Broom
again. Broom v. Strickland, 2010 WL 3447741 (S.D.
Ohio Aug. 27, 2010). He argued, among other things, that a
second attempt to execute him would violate the Eighth
Amendment's prohibition on cruel and unusual punishment
and the Fifth Amendment right against double jeopardy.
Id. at *1. The court severed and dismissed these
“no-further-attempts” claims without prejudice on
procedural grounds, but retained jurisdiction of other claims
related to Ohio's lethal injection execution protocol.
Id. at *2-4. On the same day that he filed
his Section 1983 Complaint, Broom filed an action for a Writ
of Habeas Corpus in the Ohio Supreme Court, which he later
voluntarily dismissed. In re Broom, 123 Ohio St.3d
1485 (Ohio 2009).
September 14, 2010, Broom filed the Second-in-Time Petition
for Writ of Habeas now pending in this Court, asserting any
future attempt to execute him would violate his Eighth
Amendment protection against cruel and unusual punishment,
his Fifth Amendment protection against double jeopardy, and
his Fourteenth Amendment right to substantive due process.
(Doc. No. 1.) Broom also filed on that day a second
state-court habeas action, which the Ohio Supreme Court later
dismissed. In re Broom, 127 Ohio St.3d 1450 (Ohio
2010). The next day, on September 15, 2010, Broom filed a
successive Petition for Post-Conviction Relief in the state
trial court, asserting, among other things, his federal
constitutional no-further-attempts claims. (Doc. No. 19-10 at
2-35.) And on September 17, 2010, Broom filed a Motion to
Stay this case pending exhaustion of those claims in state
court, which the Court granted. (Doc. Nos. 3, 7.)
April 7, 2011, the state trial court denied Broom's
post-conviction petition without conducting an evidentiary
hearing. (Doc. No. 19-10 at 378-82.) It held that a second
execution attempt would not violate the Fifth or Eighth
Amendments, concluding that Broom's experience of
repeated needle sticks, while “unpleasant, ” did
not constitute “torture.” (Doc. No. 19-10 at
381.) The state court of appeals affirmed on different
grounds. State v. Broom, 2012 WL 504504 (Ohio Ct.
App. Feb. 16, 2012). The Ohio Supreme Court affirmed the
state appellate court's judgment on June 9, 2015, finding
no constitutional violations. Broom, 146 Ohio St.3d
60, paragraphs 1, 4, 5 of the syllabus.
has now returned to this Court. He has filed an Amended
Petition for Writ of Habeas Corpus, reasserting his original
claims and adding a procedural due process claim. (Doc. No.
18.) He further seeks to conduct discovery relating to his
first (Eighth Amendment) and third (due process) claims
and/or expand the record. (Doc. No. 22.) Specifically, Broom
requests information regarding Ohio's execution practices
and protocols in all executions conducted after his attempted
execution in 2009 until the present through: (1) depositions
of the Department of Rehabilitation and Correction
(“DRC”) Director Gary Mohr, Southern Ohio
Correctional Facility (“SOCF”) Warden Ron Erdos
and six “team members, ” identified by numbers,
responsible for carrying out executions; and (2) documents,
records, and transcripts contained in the court record of two
civil rights cases filed under 42 U.S.C. § 1983 in the
District Court for the Southern District of Ohio by more than
one hundred death row inmates, including Broom, challenging
Ohio's execution procedures and protocols (namely,
Cooey v. Kasich, Case No. 2:04 CV 1156, and In
re Execution Protocol Litigation, Case No. 2:11 CV 1016
(“Ohio Lethal Injection Cases”)). (Id. at
14-22.) In addition, or in the alternative, he asks for the
record to be expanded to include the records from the Ohio
Lethal Injection Cases. (Id. at 22-23.) Broom also
has filed under seal a motion requesting funding for the
assistance of certain experts. (Doc. No. 25.) Respondent
opposes Broom's request for discovery. (Doc. No. 26.)
Broom has replied to Respondent's brief in opposition.
(Doc. No. 27.)
Discovery in Federal Habeas Proceedings
Habeas Rule 6: Good Cause Requirement
federal habeas petitioner, “unlike the usual civil
litigant, is not entitled to discovery as a matter of
ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). Discovery in habeas cases is governed by
Rule 6 of the Rules Governing § 2254 Cases in the United
States District Courts, which permits petitioners to initiate
discovery available under the federal civil rules “if,
and to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do so,
but not otherwise.” Habeas R. 6(a). “Good
cause” for discovery under Rule 6 exists 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)).
burden is on the petitioner to demonstrate the materiality of
the information requested. See Williams v. Bagley,
380 F.3d 932, 974 (6th Cir. 2004). Habeas Rule 6 does not
“sanction fishing expeditions based on a
petitioner's conclusory allegations.” Id.
(internal quotation marks and citations omitted). Instead,
the petitioner “must ...