The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge
Before the court is the petitioner's motion for discovery and access to physical evidence for testing. (Doc. No. 12.) For the following reasons, the court grants the motion.
I. Procedural Background*fn1
On June 26, 1987, the petitioner was convicted in the York County Court of Common Pleas of first-degree murder and robbery. He was sentenced to death. The Court of Common Pleas denied post-verdict motions. On direct appeal, the Pennsylvania Supreme Court affirmed the conviction but vacated the sentence because of the prosecutor's improper statement during the penalty phase. The court remanded the case for resentencing, at which time the petitioner was again sentenced to death. The court upheld the second death sentence, and the U.S. Supreme Court denied certiorari on October 6, 1997.
On April 21, 1998, the petitioner petitioned for relief under the Post-Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. The Court of Common Pleas denied the petition. Once again, the state Supreme Court affirmed the lower court's decision concerning the trial's guilt phase, but reversed and remanded for resentencing because the trial court had improperly instructed the jury.
Prior to the petitioner's third sentencing, the U.S. Supreme Court handed down its decision in Atkins v. Virginia, 536 U.S. 304 (2002), prohibiting the execution of the mentally retarded. The trial court found the petitioner to be mentally retarded and ineligible for capital punishment. It then sentenced the petitioner to life imprisonment on June 23, 2005.
On May 15, 2006, the petitioner, proceeding pro se and in forma pauperis, filed the petition for writ of habeas corpus under 28 U.S.C. § 2254 that gives rise to the instant motion. (Doc. No. 1.) On May 24, 2006, the court appointed the Federal Public Defender as counsel for the petitioner. (Doc. No. 5.) On June 24, 2006, the petitioner, through counsel, submitted an amended petition. (Doc. No. 10.) On September 25, 2006, the petitioner filed the instant motion for discovery, with a brief in support. (Doc. Nos. 12 & 13.)
On September 26, 2006, the court ordered the respondents to show cause why the petition should not be granted. (Doc. No. 14.) The respondents, through the York County District Attorney, responded on December 29, 2006. (Doc. No. 22.) The petitioner traversed the response on January 11, 2007. (Doc. No. 23.)
On June 6, 2007, the court discovered that the respondents had not responded to the petitioner's motion for discovery and ordered them to do so. (Doc. No. 25.) On July 24, 2007, the respondents submitted a brief in opposition to the motion. (Doc. No. 28.) On August 2, 2006, the petitioner submitted a reply brief. (Doc. No. 29.)
The motion having been fully briefed, it is ripe for disposition. The court has jurisdiction pursuant to § 2254.
The court takes the description of the crime for which the petitioner was convicted from the Pennsylvania Supreme Court's decision affirming the conviction:
Our review of the record reveals that the Commonwealth established the following facts. On Saturday, February 1, 1986, at or near 3:30 p.m., the victim, Anna Mae Morris, entered the C & M Variety store (hereinafter the "Fish Store") to purchase groceries with proceeds from her Social Security check which she had cashed the preceding day. The clerk filled her order and tallied her purchases. The victim then reached under her shirt for her wallet, tendered the amount due, put the change in her wallet, replaced her wallet under her shirt and left the store. At the same time, Appellant and a group of his friends were playing pinball and eating fish sandwiches in plain view of the victim. They had recently come from the home of Adam McKinney, a member of this group, where they had smoked some marijuana and drank some alcoholic beverages. These friends testified that Appellant neglected to place money into the common fund they collected for food purchases that day at the fish store and that moments after the victim departed, Appellant told his friends that he had something to do, adding he would meet them later in the evening at Adam McKinney's house. Appellant quickly left the fish store.
No one saw the Appellant, or the victim, until approximately 4:15 p.m. or 4:30 p.m. when Edgar Coder and Travis Wolfe stated that they saw the Appellant and the victim on the Silver Bridge (so named because of its color). They were the last people to see the victim alive.
These witnesses testified that, although they could not hear what the Appellant and the victim were saying to each other, they appeared to be arguing. In addition, Edgar Coder testified that the Appellant had what appeared to be a large stick in one of his hands. Sometime between 4:45 p.m. and 5:00 p.m., another witness, Kevin Hartmen, while walking his dog there, noticed a body under the Maryland-Pennsylvania Railroad Bridge (hereinafter the "Black Bridge" so named because of its painted color). (The Black Bridge is in close proximity to the Silver Bridge and both of these structures span the Codorus Creek.) Kevin Hartmen immediately contacted his friend, Donald Snell, who also saw the body. Mr. Snell approached his father about what he had seen. His father then told a retired policeman. In turn, the retired policeman contacted the York Police Department and reported the body beneath the Black Bridge.
The police arrived at the scene at 8:35 p.m. and began their investigation. The police found the victim's numerous articles of clothing, her torn open, empty wallet, along with her upper and lower dentures strewn around her lifeless, nude body. The autopsy revealed the victim was beaten to death by a blunt instrument and the cause of ...