Long v. Morrow

• Decision Date: 16 April 2014
• Docket Number: Case No. 3:10-01010
• Parties: RAYMOND O. LONG, JR., Petitioner, v. JIM MORROW, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

RAYMOND O. LONG, JR., Petitioner, v. JIM MORROW, Warden, Respondent.

Case No. 3:10-01010

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Entered: April 16, 2014

Chief Judge Haynes

MEMORANDUM

Petitioner, Raymond O. Long, Jr., filed a pro se action seeking the writ of habeas corpus to set aside his two state convictions for murder. (Docket Entry No. 1). After review of the pro se petition, the Court appointed counsel for Petitioner and granted leave to file an amended petition and ordered Respondent to answer the amended habeas petition. In his amended petition,¹ Petitioner asserts the following claims.

Claim One: In violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, the trial court erred in excluding a video of the prior inconsistent statement of the prosecution's key witness, Joseph Whitefield.

Claim Two: In violation of the Fifth and Fourteenth Amendments to the United States Constitution, the trial court admitted testimonial hearsay evidence of prior bad acts.

Claim Three: Under the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence was insufficient for any rational trier of fact to find Mr. Long guilty beyond a reasonable doubt of first and second degree murder.

Claim Four: In violation of the Sixth and Fourteenth Amendments to the United States Constitution, counsel rendered ineffective assistance for reasons including but [not] limited to:

a. Trial counsel failed to investigate and present evidence from Terrio Williams who was in possession of the murder weapon.

b. Trial counsel failed to sufficiently investigate and present an alibi defense based on Petitioner's parents and William Jarvis Grimes.

c. Trial counsel failed to develop and present expert ballistics evidence of the ejection patterns of the murder weapon.

Claim Five: In violation of the Fifth and Fourteenth Amendments, the State violated the mandates of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), Supreme Court decisions requiring the prosecution to provide criminal defendants with evidence in the Government's possession that could be considered exculpatory or that would serve to impeach the credibility of prosecution witnesses.

(Docket Entry No.16 Amended Petition at 7-14).

In his answer, Respondent asserts that the following claims were not presented to the Tennessee Court of Criminal Appeals and are procedurally defaulted:

Claim 1 alleges that the trial court erred in excluding the video of the prior inconsistent statements of Joseph Whitfield. The petitioner did not present this issue to the TCCA under a federal theory.

Claim 2 alleges that the state court's evidentiary ruling violated the Fifth Amendment. The petitioner did not present Claim 2 to the TCCA under this federal theory.

Claim 4, Subpart 3 alleges that counsel was ineffective for failing to develop and present expert ballistics evidence of the ejection patterns of the murder weapon. This claim was never presented to the TCCA.

Claim 5 alleges that the State violated Brady and Giglio by failing to turn overexculpatory and impeachment evidence regarding Joseph Whitfield.; by withholding impeachment evidence regarding Calvin Miles; and withholding polygraph evidence about Terrio Williams. These claims were never presented to the state courts.

(Docket Entry No. 17, Answer at 3).

As discussed in more detail below, in earlier proceedings, the Court denied the Petitioner's motions to conduct discovery. (Docket Entry No. 26). After a review of the record, the Court ordered parties to file any additional memoranda on their respective claims and defenses. Id. In his brief, Petitioner again argues for reconsideration of the Order denying discovery as well as a request for an evidentiary hearing. (Docket Entry No. 33). Petitioner also filed a motion to reconsider that Order denying discovery (Docket Entry No. 29) to which Respondent filed his response. (Docket Entry No. 34). The Court granted leave for Petitioner to file a reply. (Docket Entry Nos. 36 and 37). Petitioner also was granted leave to file a reply to Respondent's brief on the merits of the petition. (Docket Entry Nos. 39, 40 and 41). Petitioner also filed a motion for an evidentiary hearing. (Docket Entry No. 42).

For the reasons set forth below, Petitioner's motion to reconsider is granted, but the Court reaffirms its earlier ruling that good cause has not been shown to justify the requested discovery given the clear availability of the information at the time of Petitioner's trial and post conviction proceedings as well as the ambiguity of the cited materials. The Court also concludes that Petitioner's motiont for an evidentiary hearing should be denied as Petitioner had opportunities to pursue the cited factual contentions in the State courts at trial and during his state post conviction proceedings. After a review of the state record, Petitioner's evidentiary submissions, the State courts' decisions and the applicable law, the Court concludes the petition should bedenied because the State courts reasonably decided Petitioner's exhausted claims and Petitioner's unexhausted claims are procedurally defaulted without a showing of cause or prejudice.

A. Petitioner's Motions for Discovery and a Martinez Hearing

1. The Discovery Motion

In earlier proceedings, the Court denied Petitioner's motion for discovery (Docket Entry No. 26). In his motion to reconsider (Docket Entry No. 29) and in his brief, (Docket Entry No. 33), Petitioner contends that the Court possesses the discretion to reconsider its earlier Order on discovery and that the transcript submitted to support discovery is from the State prosecutor's file.

In its earlier Order (Docket Entry No. 26), the Court ruled that the subjects on which discovery was sought, involved matters that had already been presented to the State courts and Petitioner had an opportunity to develop any discovery of those issues in the State courts. Id. As the Supreme Court emphasized: "In this and related contexts we have made clear that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam) and Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (reasonableness of state court's factual finding assessed "in light of the record before the court").

Rule 6(a) of the Rules Governing Section 2254 cases sets a good cause standard for discovery that "[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 discovery." Id. In Bracv v. Gramley, 520 U.S. 899, 908-909 (1997), the Supreme Court described the standard for good cause under Rule 6(a) as '"where specific allegations before the court show reason to believe thatthe petitioner may, if the facts are fully developed, be able to demonstrate that he is... entitled to relief, it is the duty of the court to provide the necessary facilities and procedure for an adequate inquiry.'" (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); accord Williams v. Bagley, 380 F.3d 932, 976 (6th Cir. 2004).

In Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001), the Sixth Circuit stated as a general rule that in a habeas action, discovery cannot be employed as a "fishing expedition":

Habeas petitioners have no right to automatic discovery. A district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6. SeeBrackv v. Gamley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Bvrd v. Collins. 209 F.3d 486, 515-16 (6th Cir. 2000). . . . The burden of demonstrating the materiality of information requested is on the moving party. SeeMurphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000). The district court applied the correct legal standard in light of the evidence and the state court proceedings. The discovery sought by Stanford would not resolve any factual disputes that could entitle him to relief, even if the facts were found in his favor. To the contrary, Stanford's requested discovery, when reviewed in light of the recently examined record, falls more in the category of a fishing expedition. We will not find that a district court erred by denying a fishing expedition masquerading as discovery.

Id. at 460.

Moreover, "[c]onclusory 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) (footnote omitted). "Generalized statements about the possible or speculative existence of evidence do not constitute 'good cause'." Munoz v. Keane, 777 F. Supp. 282,287 (S.D.N.Y. 1991); see also Linareas v. Senkowski, 964 F. 2d 1295 (2d Cir. 1992); Aponte v. McKee, No. 2:06-cv-l 1216-DT, 2007 WL 734986 (E.D. Mich. March 8, 2007.) In a word, "a petitioner must produce specific evidence that supports his claim that the requested material will yield the asserted information." Id. at *3 (citing Linares, 964 F.2d at 1295). Although habeasproceedings are, "important in assuring that constitutional rights are observed, [that principle] is secondary and limited. Federal courts are not forums in which to relitigate state trials." Id.

Discovery must also be considered in the context of 28 U.S.C. § 2254(e)(1)² on the presumption of correctness of state court findings.

Because Petitioner failed to rebut the statutory presumption of correctness that the federal habeas court must award to the factual findings of the state courts, the district court properly concluded that it was required to defer to those factual findings. Furthermore, given this conclusion, we would be hard-pressed to say that the district court abused its discretion in denying further discovery on these issues.

Byrd v. Collins, 209 F.3d 486, 516 (6th Cir. 2000).

Consideration...