Bethel v. Bobby

• Decision Date: 23 December 2013
• Docket Number: Case No. 2:10-cv-391
• Parties: ROBERT BETHEL, Petitioner, v. DAVID BOBBY, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

ROBERT BETHEL, Petitioner,
v.
DAVID BOBBY, Warden, Respondent.

Case No. 2:10-cv-391

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

December 23, 2013

District Judge Michael R. Barrett Magistrate Judge Michael R. Merz
DECISION AND ORDER DENYING PETITIONER'S MOTION FOR DISCOVERY

This capital habeas corpus case is before the Court on Petitioner's Motion for Discovery (Doc. No. 60), Respondent's Opposition (Doc. No. 61), and Petitioner's Reply Memorandum in Support (Doc. No. 65). Petitioner also renews his March 12, 2013, Motion to Conduct Discovery and/or for an Order Requiring Retention and Preservation of Evidence (Doc. No. 50). The first branch of that Motion was previously denied and the second branch granted (Order, Doc. No. 53).

The discovery now sought is described as follows:

1. Depositions of Donald Langbein, Shannon Williams (a.k.a. "Puff), and Daniel F. Ozbolt, in support of the Fifteenth Ground for Relief

2. Records deposition to obtain all files concerning Donald Langbein in the possession of the Franklin County Prosecutor's Office

3. Records deposition to obtain all files concerning Donald Langbein in the possession of the Franklin County Sheriff's Office and the Columbus Police Department

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4. Records deposition to obtain all files concerning Donald Langbein in the possession of the Federal Bureau of Alcohol, Tobacco, and Firearms

5. Records deposition to obtain all files concerning Shannon Williams (a.k.a. "Puff), in the possession of the Franklin County Prosecutor's Office

6. Records deposition to obtain all files concerning Shannon Williams (a.k.a. "Puff), in the possession of the Franklin County Sheriff's Office and the Columbus Police Department

7. Records deposition to obtain all files concerning Shannon Williams (a.k.a. "Puff), in the possession of the Federal Bureau of Alcohol, Tobacco, and Firearms

8. Access to all materials that the State's experts relied upon in conducting ballistics analyses

9. Access to all materials that the State's experts relied upon in conducting forensics analyses

10. The information requested in Doc. No. 50 and ordered preserved in Doc. No. 53.

These items will be referred to hereinafter as "Requests No. 1-10." Request No. 10 was acceded to by Respondent subject to issuance of an appropriate protective order and petitioner's counsel acknowledge receiving it (Reply, Doc. No. 65, PageID 7976-77.)

Habeas Corpus Discovery Standard

A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6^th Cir. 2000). Before determining whether

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discovery is warranted, the Court must first identify the essential elements of the claim on which discovery is sought. Bracy, 520 U.S. at 904, citing United States v. Armstrong, 517 U.S. 456, 468 (1996). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442, 460 (6^th Cir. 2001), cert. denied, 537 U.S. 831 (2002), citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5^th Cir. 2000). "Even in a death penalty case, 'bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary hearing.'" Bowling v. Parker, 344 F.3d 487, 512 (6^th Cir. 2003), cert. denied, 543 U.S. 842 (2004), quoting Stanford, 266 F.3d at 460.

Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Williams v. Bagley, 380 F.3d 932, 974 (6^th Cir. 2004), cert. denied, 544 U.S. 1003 (2005), citing Rector v. Johnson, 120 F.3d 551, 562 (5^th Cir. 1997); see also Stanford, 266 F.3d at 460. "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact." Williams, 380 F.3d at 974, citing Ward v. Whitley, 21 F.3d 1355, 1367 (5^th Cir. 1994).

In conducting the analysis that led to granting discovery in Bracy v. Gramley, supra, the Supreme Court provided at least part of the template which lower courts should follow in deciding discovery motions in habeas corpus cases.

First of all, it identified the claims to which the sought discovery in that case related and specifically determined whether they were claims upon which habeas corpus relief could be granted at all. Federal habeas corpus is, of course, available only to correct wrongs of constitutional dimension. 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). In Bracy the claim was that the trial judge was biased in favor of

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other defendants who had bribed him and therefore had a motive to be harsh with those, like the petitioner, who had not. The Supreme Court distinguished this kind of claim of judicial disqualification from other non-constitutional claims which would not be cognizable in habeas corpus. This part of the Bracy analysis makes it clear that discovery should not be authorized on allegations in a habeas corpus petition which do not state a claim upon which habeas corpus relief can be granted.

Secondly, the Supreme Court identified circumstances which corroborated Bracy's theory of relief and request for discovery:

As just noted above, petitioner's attorney at trial was a former associate of Maloney's, App. 51, and Maloney [the corrupt trial judge] appointed him to defend this case in June 1981. The lawyer announced that he was ready for trial just a few weeks later. He did not request additional time to prepare penalty-phase evidence in this death penalty case even when the State announced at the outset that, if petitioner were convicted, it would introduce petitioner's then-pending Arizona murder charges as evidence in aggravation. Tr. of Oral Arg. 43. At oral argument before this Court, counsel for petitioner suggested, given that at least one of Maloney's former law associates--Robert McGee--was corrupt and involved in bribery, see supra, at 8, that petitioner's trial lawyer might have been appointed with the understanding that he would not object to, or interfere with, a prompt trial, so that petitioner's case could be tried before, and camouflage the bribe negotiations in, the Chow murder case. Tr. of Oral Arg. 17-18, 43-44. [FN11] This is, of course, only a theory at this point; it is not supported by any solid evidence of petitioner's trial lawyer's participation in any such plan. It is true, however, that McGee was corrupt and that petitioner's trial coincided with bribe negotiations in the Chow case and closely followed the Rosario murder case, which was also fixed.

520 U.S. 907-908.

We emphasize, though, that petitioner supports his discovery request by pointing not only to Maloney's conviction for bribe taking in other cases, but also to additional evidence, discussed above, that lends support to his claim that Maloney was actually biased in petitioner's own case. That is, he presents "specific

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allegations" that his trial attorney, a former associate of Maloney's in a law practice that was familiar and comfortable with corruption, may have agreed to take this capital case to trial quickly so that petitioner's conviction would deflect any suspicion the rigged Rosario and Chow cases might attract.

Id. at 909. The quoted "specific allegations" language is from Harris v. Nelson, supra, and demonstrates that the Supreme Court in both cases was adverting not to the claim language in the habeas petition, but to specific evidence obtained outside the discovery process and presented in support of a motion for discovery, which corroborates the claimed constitutional violation.

Application to this Case
In General

Bethel asserts (Motion, Doc. No. 60, PageID 7925-26) that he is entitled to the requested discovery under McCleskey v. Zant, 499 U.S. 467 (1991). In McCleskey the Supreme Court interpreted the abuse of writ language in Rule 9(b) of the Rules Governing § 2254 Cases before it was amended to reflect adoption of the AEDPA. McCleskey contains no language interpreting Rule 6 on discovery or suggesting that discovery should somehow be more expansive on a first habeas petition in support of counsels' obligation to include all cognizable claims in a first petition.

Bethel also alleges that "i]n state court [he] diligently pursued his right to gather facts and evidence to support his constitutional claims" and "Bethel was diligent in asking for discovery in state court. In light of the prosecution's suppression of key evidence, Bethel sought discovery through records and depositions." (Motion, Doc. No. 60, PageID 7926 & 7938). This segment

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of the Motion is completely devoid of any description of that effort or any record references to show what effort was made. The state court record in this case consists of more than 6,500 pages. Bethel's diligence claim amounts to saying "It's in there somewhere, Judge, if you just look for...