United States District Court, W.D. Pennsylvania
KIM R. GIBSON, District Judge.
Before the Court is Petitioner's Motion For Leave To Conduct Discovery. [ECF No. 143]. The Respondents (hereinafter "the Commonwealth") oppose Petitioner's motion, which is his third motion for discovery, for the reasons set forth in its BriefIn Opposition to Petitioner's Motion Seeking Leave To Re-Open Discovery Phase OfLitigation. [ECF No. 185]. The Court agrees with the Commonwealth that Petitioner is not entitled to reconsideration of the Court's two previous decisions that denied additional discovery in this case. Therefore, the Court will deny Petitioner's motion in all respects.
I. Relevant Background
A. The state court proceedings
On February 6, 1987, ajury in the Court of Common Pleas of Butler County convicted Petitioner of murdering and raping Jeanine Revak more than a year earlier, in January 1986. Following a separate sentencing trial, the jury sentenced him to death on the first-degree murder conviction. Petitioner's defense counsel was his privately-retained attorney, Charles A. Schwartz, Esq.
The trial court subsequently appointed Peter Shaffer, Esq., with the Butler County Public Defender's Office, to represent Petitioner as he litigated his post-trial motions. (SCR Nos. 58, 63 and 95). In those motions, Petitioner raised claims of trial court error, prosecutorial misconduct, and over 80 claims that his trial attorney, Schwartz, provided him with ineffective assistance of counsel. In February 1988, the trial court presided over a three-day evidentiary hearing on Petitioner's post-trial motions. A number of witnesses testified at the hearing, including Schwartz, Petitioner, and Robert Sintz, a UPS delivery man. Petitioner also introduced many exhibits at the hearing.
On April 29, 1988, the trial court issued a Memorandum Opinion and Order which denied Petitioner's post-trial motions. (SCR No. 98, Commonwealth v. Tedford, C.A. No. 241 of 1986, slip op. (C.P. Butler, April, 29, 1988)). Petitioner appealed and on December 13, 1989, the Supreme Court of Pennsylvania affirmed his judgment of sentence. Commonwealth v. Tedford , 567 A.2d 610 (Pa. 1989).
In July 1995, Petitioner filed a prose motion for post-conviction relief ("PCRA"). Eventually, Matthew C. Lawry, Esq., among others, came to represent him. Petitioner, through counsel, filed an amended PCRA petition raising, inter alia, claims of prosecutorial misconduct and claims of ineffective assistance of trial counsel (Schwartz) and post-trial and direct appeal counsel (Shaffer). (SCR Nos. 119 and 168).
As is the case in a federal habeas proceeding, no discovery is permitted in a capital PCRA proceeding except upon leave of court after a showing of good cause; bald assertions and conclusory allegations do not support discovery; and, speculative discovery requests will be denied. Pa.R.Crim.P. 902(E)(2). See, e.g., Commonwealth v. Williams , 86 A.3d 771, 789 (Pa. 2014) ("this Court has viewed overly broad discovery requests under Rule 902(E)(2) with suspicion. A general claim of necessity is insufficient. Instead, discovery requests in the PCRA setting must be accompanied by an explanation why the exculpatory information was unavailable to prior counsel and must identify specific documents or items that were not disclosed pre-trial or during the trial proceedings."); Commonwealth v. Bryant , 855 A.2d 726, 749-50 (Pa. 2004) ("A showing of good cause requires more than just a generic demand for potentially exculpatory evidence.") (quoting Commonwealth v. Carson , 913 A.2d 220, 261 (Pa. 2006)); Commonwealth v. Collins , 957 A.2d 237 (Pa. 2008) (PCRA court did not err in denying petitioner's discovery requests, which were premised on the mere speculation that possible trial court errors or potential exculpatory evidence could be discovered).
In the motion for discovery Petitioner filed with the PCRA court, he requested:
a. Any and all photographs taken during the investigation of this case, including but not limited to, any and all photographs and contact sheets of film exposed i) at the scene where the victim's body was found, ii) of the victim's body, iii) inside or in the vicinity of the Finishing Touch, iv) of the victim's automobile or the site where said automobile was found, or v) of clothing belonging to or seized from the defendant;
b. Any and all scene drawings of i) the scene where the victim's body was found, ii) the inside of or the vicinity of the Finishing Touch, or iii) the site where the victim's automobile was found;
c. Any and all audiotapes of witness interviews, including but not limited to i) the interviews of James Revak [the victim's husband] conducted by the Pennsylvania State Police and the Cranberry Township police, ii) any audiotapes of telephone calls made by Mr. Tedford, and iii) any audiotapes ofinterviews ofElizabeth Manuel;
d. Any logs or copies of logs obtained by law enforcement agencies from UPS, reflecting deliveries to the Finishing Touch;
e. Any and all crime lab reports, including i) all drawings made by the laboratories or by criminalists, ii) any and all fiber analysis, and iii) any reports concerning an analysis of striation patterns that was conducted in an attempt to match the purported murder weapon with twine seized from the Finishing Touch. If no report was prepared, Petitioner requests a copy of all materials used to make the comparison and any results from the comparison;
f. Any fingerprints taken and the results of any fingerprint comparisons that were performed;
g. Any and all polygraph examination results; and
h. All property seized from the [Petitioner].
(SCR No. 160 at ¶ 13).
On February 26, 2002, the PCRA court heard argument on Petitioner's motion for discovery. On June 12, 2002, it issued a Memorandum Opinion and Order which denied it. (SCR No. 163, Commonwealth v. Tedford, C.A. No. 241 of 1986, slip op. (C.P. Butler, June 12, 2002)). The court reviewed each request Petitioner made and concluded that with respect to each request that he failed to show that good cause existed to justify a grant of discovery. (Id. at 3-16).
On March 5, 2004, by Memorandum Opinion and Order the PCRA court dismissed all of Petitioner's post-conviction claims except for the claim that his post-trial and appellate counsel (Shaffer) had labored under a conflict of interest. (SCR No. 193). The PCRA court held an evidentiary hearing limited to that remaining claim on May 18, 2004. On July 16, 2004, the PCRA court issued a Memorandum Opinion and Order which denied that claim. (SCR No. 208).
Petitioner appealed to the Supreme Court of Pennsylvania. On November 18, 2008, it affirmed the orders of the PCRA court. Commonwealth v. Tedford , 960 A.2d 1 (Pa. 2008). It expressly held that "the PCRA court did not err in dismissing all but one of Petitioner's claims without discovery or a hearing." ld. at 55.
B. Rules governing discovery in a § 2254 action
On November 18, 2009, Petitioner, through his court-appointed attorneys Lawry and Amy Donnella, Esq. ("first habeas counsel") filed with this Court Petitioner's pending Petition For a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [ECF No. 23]. Petitioner presents 17 claims for relief. He argues that he is entitled to a new trial or, at a minimum, a new sentencing hearing.
"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) (emphasis added). See also 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."). In a federal habeas action, discovery is authorized in Rule 6 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.
At least four important factors must be considered by a federal district court when evaluating a petitioner's request for discovery in a § 2254 action. First, the "burden rests upon the petitioner to demonstrate that the sought-after information is pertinent and that there is good cause for its production." Williams v. Beard , 637 F.3d 195, 209 (3d Cir. 2011). Second, "bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing." Zettlemoyer v. Fulcomer , 923 F.2d 284, 301 (3d Cir. 1991). Mayberry v. Petsock , 821 F.2d 179, 185 (3d Cir. 1987). In order to demonstrate good cause for discovery, a habeas petitioner must set forth "specific factual allegations which, if fully developed, would entitled him or her to the writ" on a claim that he is raising in his petition. See, e.g., Lee v. Glunt , 667 F.3d 397, 404 (3d Cir. 2012). Third, Rule 6 does not authorize what is commonly referred to as "fishing expeditions." This is related to the requirement that a petitioner's request for discovery be based upon specific factual allegations regarding a claim before the court. It is not enough for a petitioner to speculate that the discovery he seeks might yield information that would support one of his claims or that it would give support to a new claim. See, e.g., Deputy v. Taylor , 19 F.3d 1485, 1493 (3d Cir. 1994) (quoting with approval Munoz v. Keane , 777 F.Supp. 282, 287 (S.D.N.Y. 1991), which explained: "petitioners are not entitled to go on a fishing expedition through the government's files in hopes of finding some damaging evidence"); Williams , 637 F.3d at 210-11 (the petitioner's discovery request "amounts to an entreaty to engage in a fishing expedition. The law is clear, however, that such speculative discovery requests should be rejected."); Arthur v. Allen , 459 F.3d 1310, 1311 (11th Cir. 2006) ("good cause for discovery cannot arise from mere speculation" and "discovery cannot be ordered on the basis ofpure hypothesis."); Rich v. Calderon , 187 F.3d 1064, 1067-68 (9th Cir. 1999) (noting that in habeas proceedings discovery is not "meant to be a fishing expedition for habeas petitioners to explore their case in search of its existence.") (internal quotation marks omitted).
The fourth point a district court must consider relates to the "exhaustion" requirement in federal habeas actions filed by state prisoners. A federal habeas court generally may not grant a state prisoner's petition for a writ of habeas corpus unless he first presented his federal constitutional claims to the state court. 28 U.S.C. § 2254(b)(l)(A). This "exhaustion" requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson , 501 U.S. 722, 731 (1991). See also O'Sullivan v. Boerckel , 526 U.S. 838, 842-49 (1999).
[It is] principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 490-491, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). Under our federal system, the federal and state "courts [are] equally bound to guard and protect rights secured by the Constitution." Ex parte Royall, 117 U.S. [241, 251, 6 S.Ct. 734, 740 (1886)]. Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, " federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Darr v. Burford , 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). See Duckworth v. Serrano , 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam) (noting that the exhaustion requirement "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights").
Rose v. Lundy , 455 U.S. 509, 517 (1982) (footnote omitted), limited on other grounds by Rhines v. Weber , 544 U.S. 269 (2005). Because a petitioner in a§ 2254 case must first exhaust any claim in state court before he brings it in federal court, a federal court must, in considering a state prisoner's motion for discovery, take into account any lack of diligence on the petitioner's part in developing the record in state court. See, e.g., Hooks v. Workman , 606 F.3d 715, 730-31 n.14 (10th Cir. 2010); Moore-El v. Luebbers , 446 F.3d 890, 900-01 (8th Cir. 2006); Crawford v. Head , 311 F.3d 1288, 1329 (11th Cir. 2002); Isaacs v. Head , 300 F.3d 1232, 1248-50 (11th Cir. 2002); Maynard v. Dixon , 943 F.2d 407, 412 (4th Cir. 1991); Byrd v. Armentrout , 880 F.2d 1, 7 (8th Cir. 1989). Although federal habeas courts always had to inquire into the efforts the petitioner in a § 2254 case made in developing the record in state court, the inquiry has become all the more important since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA, as codified at 28 U.S.C. § 2254(e)(2), prohibits a federal district court from granting a petitioner an evidentiary hearing if he was not reasonably diligent in trying to develop the record in state court. See, e.g., Williams v. Taylor , 529 U.S. 420 (2000); Palmer v. Hendricks , 592 F.3d 386, 392 (3d Cir. 2010) (§ 2254(e)(2) bars a federal habeas court from holding an evidentiary hearing "unless the petitioner was diligent in his attempt to develop a factual basis for his claim in the state court proceedings[.]"); Lewis v. Horn , 581 F.3d 92, 104-05 (3d Cir. 2009) (the purpose of§ 2254(e)(2) is "to ensure the prisoner undertakes his own diligent search for evidence"); Taylor v. Horn , 504 F.3d 416, 437 (3d Cir. 2007) ("Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."); Isaacs , 300 F.3d at 1248-49 ("[i]n passing AEDPA... Congress modified the discretion afforded to the district court and erected additional barriers limiting a habeas petitioner's right to discovery or an evidentiary hearing."). AEDPA also enacted a deferential standard of review, which is codified at 28 U.S.C. § 2254(d). When a federal court is analyzing a claim under the standard set forth in § 2254(d), its review is limited to the record that was before the state court when it adjudicated the claim. As the Supreme Court recently reiterated:
Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so. Provisions like§§ 2254(d)(l) and (e)(2) ensure that "[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." [ Williams , 529 U.S. at 437; Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 787 (2011)] ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions"); Wainwright v. Sykes , 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("[T]he state trial on the merits [should be] the main event, ' so to speak, rather than a tryout on the road' for what will later be the determinative federal habeas hearing").
Cullen v. Pinholster, ___ U.S. ___ , 131 S.Ct. 1388, 1401-03 (2011).
B. Petitioner's first motion for discovery
Because Petitioner indicated in the Petition that he wanted discovery in this federal habeas case, the Court issued an Order dated December 3, 2009, in which it directed him to file a motion for discovery and memorandum in support in which he was required to:
specifically set forth each claim on which discovery is sought and explain why, with respect to each claim, prior state proceedings in the case did not ...