United States District Court, S.D. Ohio, Western Division, Dayton
MICHAEL J. MARTIN, Petitioner,
Warden, London Correctional Institution, Respondent.
H. Rice, District Judge
DECISION AND ORDER DENYING MOTION FOR DISCOVERY AND
TO EXPAND THE RECORD
Michael R. Merz, United States Magistrate Judge
habeas corpus case, brought pro se by Petitioner
Michael Martin, is before the Court on Petitioner's
Motion for Discovery and Expansion of the Record (ECF No.
14). Martin seeks production of
(1) The complete Police video interrogation of the Petitioner
Michael J. Martin conducted on the night of march 26th 2016
around 11:30 pm. This interrogation was conducted by Dayton
homicides Det. Thomas Cope and Det. David House.
(2) The complete police video interrogation of State's
witness Ms. Lisa Busbee on the same night in question, which
is march 26th 2016 conducted by Det. Thomas Cope or Det.
David House of the Dayton Police Department.
(3) The complete written police report of Mr. Ebert Soles
statements generated by Det. David House on march 26th 2016.
(Motion, ECF No. 14, PageID 1566).
of the Rules Governing § 2254 Cases provides for
discovery in habeas cases. However, a habeas petitioner is
not entitled to discovery as a matter of course, but only
upon a fact-specific showing of good cause and in the
Court's exercise of discretion. Rule 6(a), Rules
Governing § 2254 Cases; Bracy v. Gramley, 520
U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286
(1969); Byrd v. Collins, 209 F.3d 486, 515-16
(6th Cir. 2000). Before determining whether
discovery is warranted, the Court must first identify the
essential elements of the claim on which discovery is sought.
Bracy, 520 U.S. at 904, citing United States v.
Armstrong, 517 U.S. 456, 468 (1996). The burden of
demonstrating the materiality of the information requested is
on the moving party. Stanford v. Parker, 266 F.3d
442, 460 (6th Cir. 2001), cert. denied,
537 U.S. 831 (2002), citing Murphy v. Johnson, 205
F.3d 809, 813-15 (5th Cir. 2000). “Even in a
death penalty case, ‘bald assertions and conclusory
allegations do not provide sufficient ground to warrant
requiring the state to respond to discovery or require an
evidentiary hearing.'” Bowling v. Parker,
344 F.3d 487, 512 (6th Cir. 2003), cert.
denied, 543 U.S. 842 (2004), quoting Stanford,
266 F.3d at 460.
does not "sanction fishing expeditions based on a
petitioner's conclusory allegations." Williams
v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004),
cert. denied, 544 U.S. 1003 (2005), citing
Rector v. Johnson, 120 F.3d 551, 562 (5th
Cir. 1997); see also Stanford, 266 F.3d at 460.
"Conclusory allegations are not enough to warrant
discovery under [Rule 6]; the petitioner must set forth
specific allegations of fact." Williams, 380
F.3d at 974, citing Ward v. Whitley, 21 F.3d 1355,
1367 (5th Cir. 1994).
Motion, Martin does not identify how the information he seeks
relates to the grounds for relief in his Petition. In the
Motion, he claims prosecutorial misconduct in showing a brief
clip from his interrogation in which he said “I locked
the doors.” He claims this clip misrepresents the time
at which he said he locked the doors (Motion, ECF No. 14,
PageID 1564). Next he claims his trial attorney failed to
introduce evidence of why he was carrying a firearm, but says
the video of his interrogation would show why he was armed.
Id. Next, he claims Ms. Lisa Busbee's statements
in her interrogation are inconsistent with her trial
testimony. Id. at PageID 1565. Finally, he claims
the written police report of the interview with Ebert Soles
“will show the phone found at the scene had nothing to
do with the case.” This report is said to support
Martin's claim of ineffective assistance of trial counsel
because the interviewing officer was not called to testify.
apparently relevant Grounds for Relief are Ground Six
(ineffective assistance of trial counsel in impeaching Busbee
and Soles) and Ground Eight (prosecutorial misconduct).
Martin makes clear in his Petition that the video of Busbee
and the written report of the Soles interview were turned
over to his counsel prior to trial. While he does not say so
in his Grounds for Relief, the video of his interrogation
would also have been producible in discovery under Ohio R.
Crim. P 16. It also appears from his motion papers that the
items he seeks in discovery were not before the jury, except
for the brief clip about his locking the doors. That
presumably is why Martin wants these items added to the
record so that this Court can consider them as evidence
supporting his claims.
Supreme Court has severely limited the evidence a district
court can consider in a habeas case, at least with respect to
issues decided on the merits by the state courts. Cullen
v. Pinholster, 563 U.S. 170 (2011). If the state courts
have thus decided an issue, the district court cannot hold an
evidentiary hearing or expand the record to add more evidence
until and unless it has decided that the state court decision
is an objectively unreasonable application of clearly
established Supreme Court precedent or an unreasonable
determination of the facts on the basis of the evidence
presented. 28 U.S.C. § 2254(d)(1) and (2). That is, this
Court must evaluate the state court decision on the basis of
evidence the state court had before it, not evidence added to
the record after the case came to federal court.
the Motion for Discovery and to Expand the Record is DENIED
without prejudice to its renewal if the Court rejects
deference to the state ...