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Marshall v. Beard

March 30, 2010

JEROME MARSHALL PETITIONER
v.
JEFFREY A. BEARD, ET AL. RESPONDENTS



The opinion of the court was delivered by: Golden, J.

THIS IS A CAPITAL CASE

MEMORANDUM OPINION AND ORDER

Petitioner Jerome Marshall, a Pennsylvania prisoner currently under a sentence of death, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is the Petitioner's Motion for Renewed Discovery. For the reasons which follow, the Motion is DENIED.

Petitioner was arrested in November 1983 and charged with criminal homicide for the deaths of Myndie McKoy, Sharon Saunders, and Saunders' two-year old daughter Karima Saunders. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590, 593 (Pa. 1989) (Marshall I). On August 29, 1984, Petitioner was convicted on three counts of first degree murder in a jury trial in the Court of Common Pleas of Philadelphia County. Id. On August 31, 1984, the jury recommended a life sentence for the murder of Sharon Saunders and death sentences for the murders of McKoy and Karima Saunders. Id. Petitioner appealed to the Supreme Court of Pennsylvania, which affirmed all three convictions and the sentences for the murders of Sharon Saunders and McKoy, but reversed the death sentence for the murder of Karima Saunders and remanded for resentencing on that count. Id. at 600. On July 27, 1990, a retrial jury also recommended that Petitioner be sentenced to death for Karima Saunders' murder. The trial court sentenced Petitioner to death for the murder of Karima Saunders. Commonwealth v. Marshall, 537 Pa. 336, 643 A.2d 1070, 1071 (Pa. 1994) (Marshall II). Petitioner again appealed to the Supreme Court of Pennsylvania, which affirmed the sentence on May 24, 1994. Id.

Petitioner filed a timely pro se petition for collateral relief in the state court pursuant to the Pennsylvania Post-Conviction Relief Act, 42 Pa.Cons.Stat. § 9541 et seq. ("PCRA"). Commonwealth v. Marshall, 571 Pa. 289, 812 A.2d 539, 543 n.1 (Pa. 2002) (Marshall III). After a court-appointed counsel submitted an amended PCRA petition, relief was denied without an evidentiary hearing. Id. The Pennsylvania Supreme Court affirmed. Id. at 542. Petitioner then filed this habeas petition in this Court on May 22, 2003, which was assigned to the Honorable Bruce W. Kauffman.

On November 6, 2003, Petitioner filed a Motion for Discovery. By Memorandum and Order dated August 27, 2004, Judge Kauffman granted the Motion in part and denied the Motion in part. Specifically, Judge Kauffman ordered the Respondents to produce the prosecutor's jury selection notes for Petitioner's 1984 trial and 1990 penalty retrial. The Court denied Petitioner's requests for re-creation of the prosecution's prior discovery and any exculpatory material as moot, but with leave to re-file if he believed that Respondents had not fully complied with the requests. Judge Kauffman denied the remainder of the Motion, including Petitioner's request for discovery relating to his claim that his confession was coerced.

On June 29, 2007, Petitioner filed a reply memorandum in support of his Petition. In the reply, he raised another claim that trial counsel was ineffective for failing to present evidence of an alleged pattern and practice of brutality by the Philadelphia Police Department in obtaining confessions during the 1960s and 1970s. See Reply at 37-47. In support of this claim, Petitioner relies upon a series of articles from the Philadelphia Inquirer, published in the spring of 1977, which purportedly detail a pattern and practice of police brutality at the Philadelphia Police Administration Building in the 1960s and 1970s.

On June 18, 2008, Petitioner filed the motion sub judice. On July 17, 2009, the Habeas Petition was reassigned to the undersigned as a result of Judge Kauffman retiring from the Court.

In his Motion for Renewed Discovery, Petitioner seeks "(a) the Homicide File (including but not limited to the Homicide Binder) for the homicides of Myndie Mckoy, Sharon Saunders (a/k/a Sharon Ballard), and Karima Saunders and the investigation and/or prosecution of Jerome Marshall, and (b) any documents, records, files, memoranda, correspondence, notes and reports, reflecting any evidence of coercion of suspects by the individual officers involved in Petitioner's interrogation (Leon Lubiejewski, Lawrence Grace, and William Shelton)." See Petitioner's Renewed Motion for Discovery at ¶ 8.

A "habeas petitioner... is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, a habeas petitioner may obtain discovery only pursuant to Rule 6(a) of the Rules Governing § 2254 Cases, which states:

A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure 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.

28 U.S.C. § 2254 Rule 6(a).

As a preliminary matter, the Court must identify the essential elements of Petitioner's claims and address whether his discovery requests are related to a constitutional challenge in the Petition. Bracy, 520 U.S. at 904-05. Petitioner must also demonstrate good cause for the discovery by setting forth specific allegations that lead the court to believe that, if the facts were fully developed, he may be entitled to relief. Bracy, 502 U.S. at 908-09. A petitioner may not engage in a "fishing expedition," and "bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery." Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994). Once good cause has been shown, the scope and extent of discovery is left to the District Court's discretion. Bracy, 520 U.S. at 909.

Petitioner's request relates to Count III of the Petition, which alleges that (1) Petitioner's confession was involuntary, and its admission in evidence violated the 5th and 14th Amendments, and (2) counsel was ineffective for failing to investigate issues that would ...


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