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Broom v. Bobby

United States District Court, N.D. Ohio, Eastern Division

April 4, 2018

ROMELL BROOM, Petitioner,
v.
DAVID BOBBY, Warden, Respondent.

          MEMORANDUM OF OPINION & ORDER

          CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.

         Before 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 motions.

         Relevant Procedural History

         Broom 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.

         The 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.

         Broom 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).

         On 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.)

         On 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.

         Broom 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”)).[1] (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.)

         Analysis

         A. Discovery in Federal Habeas Proceedings

         1. Habeas Rule 6: Good Cause Requirement

         A 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)).

         The 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 ...


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