Drew v. Jackson, CASE NO. 2:10-cv-301

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtTerence P. Kemp
Docket NumberCASE NO. 2:10-cv-301
Decision Date16 December 2010

SHAWN DREW, Petitioner,

CASE NO. 2:10-cv-301


Date: December 16, 2010




Petitioner, a state prisoner, has filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED. Further, petitioner's motion for an order to include recordings will be denied.

Turning briefly to petitioner's motion seeking recordings of the alleged victim, the Court construes this motion as a request for discovery. According to petitioner, these recordings are necessary "for the Court to be able to compare the alleged victim's in-court statements with the statements she originally gave to law enforcement operatives which are certainly inconsistent and actually amount to perjury." Respondent has opposed the request on various grounds including that petitioner has not demonstrated what these recordings will enable him to prove.

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The discovery processes contained in the Federal Rules of Civil Procedure do not apply across the board in habeas corpus actions. "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, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). In Harris v. Nelson, 394 U.S. 286, 295, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the United States Supreme Court held that the "broad discovery provisions" of the Federal Rules of Civil Procedure did not apply in habeas corpus proceedings. As a result of the holding in Harris, the Rules Governing Section 2254 Cases in the United States District Courts were promulgated in 1976.

Specifically, Rule 6(a) provides-

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.

Under this "good cause" standard, a district court should grant leave to conduct discovery in habeas corpus proceedings only " 'where specific allegations before the court show reason to believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that he is... entitled to relief....' " Bracy, 520 U.S. at 908-909 (quoting Harris, 394 U.S. at 300). See also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.2001), rehearing en banc denied, Nov. 29, 2001.

"The burden of demonstrating the materiality of the information requested is on the moving party." Stanford, 266 F.3d at 460. Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Rector v. Johnson, 120 F.3d 551, 562 (5th 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." Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994).

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Petitioner has failed to meet this standard here. For the reasons discussed, below, his claims are procedurally defaulted or plainly lack merit. Consequently, petitioner's motion, construed as a request for discovery, Doc. No. 17, is DENIED.

Similarly, petitioner's request for an extension of time to file a reply to respondent's return of writ, contained in his reply in support of his motion, is also denied. Petitioner already has been granted one untimely request to file a reply. Further, it appears that the purpose of the requested extension was to allow petitioner to use the information from the recordings in his reply. Because the Court has denied petitioner's request for the recordings, he has not set forth good cause for any further untimely extensions of time for filing a reply.


The Tenth District Court of Appeals summarized the facts of this case as follows:

{¶2The following is a recitation of the facts relative to appellant's convictions, which were adduced at trial. Additional facts will be discussed as they concern each assignment of error. Appellant and the victim, A.S., dated during high school in the late 1980's. After high school, the couple lost touch until October 2005, when A.S. contacted appellant. They met again in person in November, and by December, the two began dating. In January 2006, A.S. discovered that she was pregnant, which was a cause of concern because she suffered from a blood disorder that would cause her pregnancy to be high-risk. Additionally, A.S. was a parochial school teacher and was unsure if her status as an unwed mother would jeopardize her employment.

{¶ 3} The couple's harmonious reunion was short lived. Appellant became violent with A.S. over the Martin Luther King holiday weekend; he "bit [her on her] face, " leaving teeth marks and breaking the skin on her left cheek." (Tr. at 82.) Appellant was apologetic afterwards, but when A.S. indicated that she was not going to accept his apology, he "became even more enraged and told [A.S.] that he

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was going to scar [her] for life and that [she] better never tell anyone." Id. at 83. He also became "suddenly suspicious" and jealous. Id. at 84. His anger became "increasingly more unpredictable" and "would say and do" things that seemed "out of character" and "odd." Id. at 84. He threatened to hurt A.S., as well as members of her family, and told her that if she tried to keep him out of their baby's life, he would hurt both her and the baby.

{¶ 4} Appellant's grandmother died in late January 2006. Because of the situation created by appellant's violence, A.S. did not think she should attend the funeral. Appellant called A.S. and told her that he needed to retrieve his shoes from her apartment, and instructed A.S. to meet him at his aunt's house, where she was to wait for his call. A.S. did as he said, but after waiting for over an hour without a call from appellant, she left and went to her twin sister's house to celebrate their birthday. Later that evening, appellant called A.S. and told her to come pick him up, which she did. Appellant was upset, and, while en route to A.S.'s apartment, he expressed his "displeasure" with her over her decision not to attend his grandmother's funeral. Id. Once at the apartment, appellant became physically violent. He began "yelling, telling [her] he was going to kill [her]." Id. at 99. He went into the kitchen, retrieved a knife, and threatened her with it, describing in detail how he was "going to gut" her. Id. During this episode, appellant hit her, pulled her hair, and, all the while, kept repeating that he would kill her. Appellant reiterated that if A.S. had any intention of not letting him have contact with the baby, then "he would hurt the baby, and [she] wouldn't have the baby at all." Id. at 100. The situation finally de-escalated when appellant fell asleep. A.S. did not call the police because she was afraid. She explained at trial that she "had seen him evolve into this person that was very aggressive and very intimidating and he was so descriptive" in his threats that A.S. "absolutely believed" that appellant would follow through. Id. at 104.


{¶ 5} A.S. remained in the relationship out of fear, nor did she know how to safely extricate herself. Around mid-February, appellant accompanied her to an obstetric appointment, after which, she dropped appellant off somewhere and proceeded to work. Late that evening, appellant called A.S. and was very upset. He told her to pick him up, which she did. In the car, he told her that she needed to withdraw money from her account because "someone accused him of stealing money, " and even though he denied having done so, he needed to replace the money because "this person knew where his

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family lived and they would hurt his family." Id. at 112. After trying several ATMs, and waiting for A.S.'s paycheck to appear in her account, A.S. was able to withdraw money for appellant. By that time, it was early morning, so A.S. went to work.

{¶ 6} After work, A.S. went to her sister's house to baby-sit. Having not gotten any sleep the night before, and tired from her pregnancy, A.S. fell asleep at her sister's house. In the morning, when she plugged in her cell phone to recharge in the car, her phone immediately rang-it was appellant. He told her that he needed a ride and instructed her to pick him up. Appellant was angry when he got in the car, and directed A.S. to take him back to her apartment.

{¶ 7} Once in the apartment, appellant locked the door and began yelling at A.S. She testified that his speech was incoherent and he "wasn't making any sense." Id. at 125. He told her to go to her bedroom, where he forced her to perform oral sex. While doing so, appellant hit A.S. about the face, and, at some point, told her that "he had...

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