United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
Pending before the court is a motion for discovery (ECF No. 7) filed by the petitioner, Robert Gene Rega ("Rega"). The respondents oppose Rega's motion. For the reasons set forth below, the court will deny it.
I. Rega's Request for Discovery in This Federal Habeas Case
In June 2002, Rega was tried on charges of homicide and related crimes in the Court of Common Pleas of Jefferson County on consolidated cases docketed at CP-33-CR-26-2001 and CP-33-CR-524-2001 (the "capital case"). The jury convicted him of first-degree murder, robbery, burglary, theft by unlawful taking or disposition, aggravated assault, criminal mischief, unlawful restraint, theft by receiving stolen property, and criminal conspiracy. At the conclusion of the penalty hearing on the first-degree murder conviction, the court imposed a sentence of death.
In May 2003, Rega was tried on unrelated sexual offense charges in the Court of Common Pleas of Jefferson County at a case docketed at CP-33-CR-174-2001 (hereinafter referred to as the "rape case"). The jury in this case convicted Rega of fifty-one counts, including rape, statutory sexual assault, indecent sexual assault, involuntary deviate sexual intercourse, indecent assault, and selling or furnishing liquor to minors.
The District Attorney of Jefferson County, Jeffrey D. Burkett, prosecuted both the capital case and the rape case. Raymond Fishel ("Fishel"), Shawn Bair ("Bair"), and Michael Sharp ("Sharp") testified as prosecution witnesses in the capital case. Susan Jones ("Jones") testified as a prosecution witness in both the capital case and the rape case.
In the petition for a writ of habeas corpus that Rega filed with this court pursuant to 28 U.S.C. § 2254, he challenges his convictions and death sentence in the capital case. Among his many contentions is that his due process rights were violated pursuant to Brady v. Maryland , 373 U.S. 83 (1963), and Napue v. Illinois , 360 U.S. 264 (1959), and their progeny. Specifically, in Claim I of his petition, Rega contends that the District Attorney suppressed material impeachment evidence relating to Jones, Fishel, Bair, and Sharp (hereinafter referred to collectively as the "Witnesses" and individually by name or as "each Witness"). In Claim II, Rega contends that the District Attorney actively misled the jury about plea negotiations with the Witnesses and then exploited that false and misleading testimony in closing arguments.
In his motion, Rega seeks discovery on Claims I and II. He requests that the respondents review the following files of the District Attorney's Office:
(a) regarding Jones: the files for Rega's capital case and rape case, and for Jones's criminal cases at Commonwealth v. Susan I. Jones, CP-33-CR-345-2001, CP-33-CR-346-2001, CP-33-CR-48-2003, and CP-33-CR-248-2003;
(b) regarding Fishel: the files for Rega's capital case and for Fishel's criminal cases at Commonwealth v. Raymond Fishel, CP-33-CR-91-2001 and CP-33-CR-571-2001;
(c) regarding Bair: the files for Rega's capital case and for Bair's criminal cases at CP-33-CR-27-2001, CP-33-CR-95-2001, CP-33-CR-97-2001 and CP-33-CR-98-2001;
(d) regarding Sharp: the files for Rega's capital case and for Sharp's criminal cases at Commonwealth v. Michael Sharp, CP-33-CR-424-2001 and CP-33-CR-425-2001.
(Pet's Mot. for Disc. (ECF No. 7) ¶ 8(a)-(d)). From these files, Rega requests that the respondents produce:
All correspondence, memoranda, notes, records and/or any other documents or writings... concerning any conversations between [each Witness] (and/or [his/her] attorney) and Jefferson County District Attorney Jeffrey Burkett, any member of his staff, and/or any police officer, including but not limited to any correspondence, memoranda, notes, records and/or any other documents or writings that evidence plea negotiations and discussions, plea offers extended, formal or informal plea bargains entered into, Commonwealth-created expectations of leniency, possible rewards from the Commonwealth in exchange for [his or her] testimony, Commonwealth-created incentives and inducements to testify, possible agreements or arrangements between [each Witness] and the Commonwealth for leniency, implications and indications by the Commonwealth prior to trial that [his/her] cooperation would be rewarded, understandings between [each Witnesses] and the Commonwealth as to future prosecution, and Commonwealth-created opportunity for leniency expressly contingent on the Commonwealth's satisfaction with [his or her] testimony against Mr. Rega.
Rega sought this same information during the discovery phase of his state collateral proceeding, which he filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. According to Rega, the District Attorney acknowledged that his office's files contained documents "that were responsive to [his] Brady-related discovery request, " but he refused to produce the documents and instead moved for and was granted a protective order. (Pet's Mot. for Disc. (ECF No. 7) ¶¶ 4-5). Rega contends that in the PCRA proceeding he was "denied disclosure of the exact discovery" he now seeks in this case. (Id. at 6).
The respondents oppose Rega's discovery requests. They describe the procedural background provided by Rega in his motion for discovery as "woefully incomplete" (Resp. to Pet's Mot. for Disc. (ECF No. 15) ¶ 2), and have had transcribed two on-the-record proceedings before the PCRA court regarding the discovery requests Rega made in his state case. They contend that once this court has an accurate understanding of the discovery conducted during the PCRA proceeding, it will deny Rega's present motion for discovery.
A. Legal Standard for Obtaining Discovery in a Federal Habeas Case
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley , 520 U.S. 899, 904 (1997); see Harris v. Nelson , 394 U.S. 286, 300 (1969) ("broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of a habeas corpus proceeding."); Munoz v. Keane , 777 F.Supp. 282, 287 (S.D.N.Y. 1991) ("petitioners are not entitled to go on a fishing expedition through the government's files in hopes of finding some damaging evidence") (quoted with approval in Deputy v. Taylor , 19 F.3d 1485, 1493 (3d Cir. 1994)). Discovery is authorized in Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Court only by leave of court upon a showing by the petitioner of "good cause, " which may be made "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[.]" Harris , 394 U.S. at 300; see Bracy , 520 U.S. at 908-09; Williams v. Beard , 637 F.3d 195, 209 (3d Cir. 2011) ("The burden rests upon the petitioner to demonstrate that the sought-after information is pertinent and that there is good cause for its production."); Zettlemoyer v. Fulcomer , 923 F.2d 284, 301 (3d Cir. 1991) ("bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery"); Mayberry v. Petsock , 821 F.2d 179, 185 (3d Cir. 1987) (same).
Importantly, the petitioner's "specific allegations" in support of discovery must be evaluated against the state court record. Incomplete or inaccurate allegations do not support a finding of good cause for discovery. See, e.g., Tedford v. Beard, No. 09-409, 2010 WL 3885207, at *8 (W.D. Pa. Sept. 28, 2010) (McVerry, J.) ("If the Court were to take Petitioner's allegations at face value, it might agree that they are specific enough to entitle him to discovery of the photographs at issue. The court will not do so, however, because a review of the transcript from the preliminary hearing shows that his paraphrasing of Officer Peter's testimony is inaccurate."). It is necessary, as respondents contend, to have an accurate understanding of what occurred during the discovery phase of Rega's PCRA proceeding.
B. The Discovery Proceeding in Rega's PCRA Case
In 2009, Rega filed a motion for discovery with the Court of Common Pleas of Jefferson County (the "PCRA court"). (Pet's Mot. for Disc. in Commonwealth v. Rega, No. CP-33-CR-26-2001 (C.P. Jefferson Co., May 13, 2009), SCR No. 241). The PCRA court granted the discovery motion by signing the proposed order drafted by Rega's counsel. The order contained the broad directive that the District Attorney's Office was to produce "[a]ll documents relating to" each Witness that was contained in the files for Rega's capital case, his rape case (with respect to Jones), and each Witness's individual criminal cases "including but not limited to all correspondence, memoranda, notes, reports, records[.]" (Order in Commonwealth v. Rega, No. CP-33-CR-26-2001 (C.P. Jefferson Co. June 15, 2009), SCR No. 244).
On July 31, 2009, the District Attorney filed a motion with the PCRA court for a protective order. He explained that he "sent to [Rega's] counsel a packet which contains those items which come within the purview" of the discovery order and to which he had no objection to disclosure. (Mot. for Protective Order in Commonwealth v. Rega, No. CP-33-CR-26-2001, ¶ 6 (C.P. Jefferson Co., July 31, 2009), ...