Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lopez v. Beard

United States District Court, E.D. Pennsylvania

March 3, 2017



          R. BARCLAY SURRICK, J.

         Presently before the Court is Petitioner George Ivan Lopez's Motion for Discovery. (ECF No. 54.)[1] For the reasons that follow, Petitioner's Motion will be granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background

         George Ivan Lopez (“Petitioner”) was convicted on March 19, 1996 in the Lehigh County Court of Common Pleas of first-degree murder, robbery, theft, receiving stolen property, and conspiracy, in connection with the death of David Bolasky. See Commonwealth v. Lopez, 739 A.2d 485, 489 (Pa. 1999).[2] Petitioner was jointly tried alongside co-defendant Edwin Romero, and sentenced to death on April 17, 1996. Lopez, 739 A.2d at 487. In 1999, Petitioner filed an unsuccessful appeal of his conviction directly to the Pennsylvania Supreme Court. See Id. at 494. Petitioner argued, inter alia, that his trial attorney's decision to not join in a motion to suppress the testimony of jailhouse witness Timateo Paladino-a/k/a Daniel Lopez-amounted to ineffective assistance of counsel. See id. at 500. On October 1, 1999, Petitioner's conviction was affirmed. The United States Supreme Court denied Petitioner's petition for writ of certiorari. Lopez v. Pennsylvania, 530 U.S. 1206 (2000). Petitioner subsequently sought timely relief in Pennsylvania state court pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”). See Commonwealth v. Lopez, 854 A.2d 465 (Pa. 2004). The PCRA court denied Petitioner relief. Id. at 467. The Pennsylvania Supreme Court affirmed this decision. Id. at 467. In 2012, Petitioner filed a second PCRA petition, which was also denied. See Commonwealth v. Lopez, 51 A.3d 195 (Pa. 2012). This denial was affirmed by the Pennsylvania Supreme Court. See Id. at 196 (affirming denial of Petitioner's second PCRA petition on the grounds that Petitioner's claims are time-barred, since the discovery of evidence of disciplinary proceedings against his trial counsel was publicly available for longer than 60 days before the petition was filed). Having exhausted his state court remedies, Petitioner filed a petition for federal habeas corpus relief. (ECF No. 53.) In furtherance of Petitioner's habeas petition, he filed the instant Motion requesting leave to engage in discovery with respect to two of his habeas claims. (Id.) First, Petitioner seeks discovery with regard to Claim VII of his pending habeas petition, which alleges that Paladino was a government agent whose testimony implicating Petitioner should not have been admitted. (Pet'r's Mot. 1, ECF No. 54.) Petitioner also requests discovery with regard to Claim XVII[3] of his habeas petition, which includes the results of a polygraph test of trial witness Miguel Moreno, as well as any exculpatory or impeachment evidence related to the polygraph test, and any agreement between Moreno and the Commonwealth related to his cooperation and his sentence. (Pet'r's Mot. 1.)

         B. Procedural Background

         On September 2, 2004, Petitioner filed a petition in this Court for federal habeas corpus review. (ECF No. 3.) On September 10, 2004, we granted Petitioner's motions for appointment of federal habeas corpus counsel under 21 U.S.C. § 848(q), a stay of execution, and leave to proceed in forma pauperis. (ECF No. 4.) On March 4, 2005, we granted Petitioner's motions to compel attorneys James J. Burke and James L. Heidecker, Jr. to produce any and all files concerning Petitioner. (ECF Nos. 13, 14.) On April 4, 2012, we stayed this matter pending the resolution of Petitioner's related claim under Pennsylvania's PCRA. The matter was placed in civil suspense. (ECF No. 26.) The case was removed from civil suspense on March 11, 2015. (ECF No. 40.) On June 12, 2015, Petitioner filed a brief in support of his habeas petition. (ECF No. 53.) On June 15, 2015, Petitioner filed the instant Motion for Discovery. (Pet'r's Mot.)


         “Under Rule 6(a) of the Rules Governing Section 2254 cases, a judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of such discovery.” Steward v. Grace, 362 F.Supp.2d 608, 622 (E.D. Pa. 2005) (citation and internal quotation marks omitted). However, courts within this District have maintained that “a habeas petitioner, unlike the civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Id. In determining whether to permit discovery, the Third Circuit has noted that “[t]he 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). A petitioner establishes “good cause” when “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.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)).[4]

         “[B]ald 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). Indeed, “[f]ishing expeditions” are not permitted. Beard, 637 F.3d at 210. Therefore, 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 Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994) (“[H]abeas corpus is not a general form of relief for those who seek to explore their case in search of its existence.” (citation and internal quotation marks omitted)). But cf. Johnston v. Love, 165 F.R.D. 444, 445 (E.D. Pa. 1996) (maintaining that a court must grant a petitioner's motion for discovery “if there is a sound basis for concluding that the requested discovery might allow him to demonstrate” that he is entitled to relief); Han Tak Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012) (reversing denial of habeas petition where petitioner demonstrated good cause to conduct discovery).


         In his first claim for discovery, Petitioner seeks production of “any document or statement tending to show that Paladino was in fact intentionally placed in close proximity to Petitioner at the time Paladino obtained the admissions from [Petitioner].” (Pet'r's Mot. 5.) Petitioner also requests that the Commonwealth produce “any notes or memoranda in the possession of . . . the local prosecutor, the Lehigh County Prison, or the Allentown Police Department tending to show the same or showing that Paladino was instructed to elicit statements from Petitioner and/or his co-defendants.” (Id.) In his second discovery claim, Petitioner seeks an order mandating the Commonwealth to produce “any statements, reports, notes, memoranda, writings, transcripts or recordings regarding Cooperating Co-Defendant Miguel Moreno's interrogation, including results of polygraph examinations administered to Moreno, ” which might “show that Moreno testified pursuant to an agreement.” (Id. at 5.)

         A. Discovery With Regard to Paladino's Testimony

         In seeking discovery related to Paladino's testimony, Petitioner asserts an ineffective assistance of counsel claim against Petitioner's trial attorney, James Heidecker, Esq. He alleges that Heidecker performed “abysmally” at his trial. (Pet'r's Habeas Mem. 1-2, ECF No. 53.) Petitioner alleges that Heidecker failed to disclose that he was facing disciplinary charges of which Petitioner was previously unaware during the course of his trial. (Id. at 1.) He also contends that in the 1999 direct appeal of his guilty verdict to the Pennsylvania Supreme Court, Heidecker ineffectively failed to object to Paladino's testimony addressing the contents of Petitioner's handwritten statement that he assisted Moreno in disposing of Mr. Bolasky's body. (Id.); Lopez, 739 A.2d at 499. The Pennsylvania Supreme Court rejected Petitioner's ineffective assistance claim, finding that Heidecker had a reasonable basis to not object, since Heidecker used the testimony “to support [Petitioner's] defense that he only assisted in the disposal of Bolasky's body, ” not that he participated in the murder. Lopez, 739 A.2d at 499.

         Petitioner further claims that Heidecker should have joined in Romero's motion to suppress Paladino's statements, which Petitioner alleges were attained in violation of his Fifth Amendment Rights.[5] Id. at 500. Romero argued in his suppression motion that “[Paladino's] testimony should be suppressed because he was acting as an agent of the Commonwealth when he obtained incriminating statements from Romero [] and [Petitioner] at the Lehigh County Prison.” Id.[6] In support of his contention that Heidecker should have joined in Romero's motion to suppress, Petitioner contends that while awaiting trial in the Lehigh County Prison, he and Paladino were housed in close proximity so that Paladino-acting in concert with prosecutors- could obtain inculpatory evidence from both Petitioner and from Petitioner's co-defendants.[7] While Petitioner concedes that he cannot currently demonstrate that he and Paladino were intentionally and strategically placed in close proximity, he claims that limited discovery will permit him to prove that he and Paladino were housed together in order for Paladino to elicit inculpatory statements. (Pet'r's Mot. 3.)

         Relying on its “independent review of the record, ” the Pennsylvania Supreme Court found that Paladino was not acting as an agent of the Commonwealth when he obtained incriminating statements from ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.