The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
Gary Wayne Sutton ("Petitioner") has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Before the Court are Petitioner's amended motion for discovery(Doc. 26), the State's response (Doc. 34), and Petitioner's reply to the response (Doc. 35). Also before the Court is Petitioner's unopposed motion for leave to file a second discovery motion after the expiration of the discovery deadline which will be addressed first (Doc. 39) and his unopposed second motion for discovery (Doc. 40).
Counsel contends she was informed in mid-August that she would be designated lead counsel on this case and she immediately determined a public records request pertaining to Dr. Harlan was appropriate. After making that determination, counsel diligently pursued that avenue of discovery. Counsel was able to collect some discovery from the Department of Health but its General Counsel would not permit her to view several boxes, including material that was protected by attorney-client privilege. Although the discovery and dispositive motion deadlines have passed, as counsel recognizes, absent objection from the Respondent, out of an abundance of caution since this is a death penalty case, and in the interest of efficient judicial administration to avoid further unnecessary delay, the motion requesting Petitioner be allowed to file a second motion for discovery after the deadline will be GRANTED (Doc. 39).
In support of his discovery motions, Petitioner claims the prosecution withheld exculpatory evidence which would have demonstrated the lack of reliability and credibility of its rebuttal witness, Dr. Charles Harlan. Dr. Harlan became the Chief Medical Examiner for the State of Tennessee in 1989. However, in 1995, the State declined to renew his contract for the position of Chief Medical Examiner and had to file a declaratory action, to inform him judicially that he no longer occupied that position (Doc. 35, Exhibits A & B). Petitioner asserts that "in 1995, Dr. Harlan commenced a string of shocking professional discrepancies, including lying that he had performed an autopsy when in fact he had not, lying about how identifications on bodies were made, misidentifying bodies, and misidentifying the cause of death in numerous cases" (Doc. 35, Attachment B, p. 6-7). According to Petitioner, the State was well aware of Dr. Harlan's troubles when, without notice to defense counsel, it called him as a rebuttal witness in Petitioner's murder trial and enlisted him to give an opinion as to the time of the victim's death-an opinion which Petitioner contends is false and scientifically unreliable. Indeed, in support of Petitioner's second motion to obtain discovery, Counsel asserts she discovered documents suggesting the Tennessee Bureau of Investigation ("T.B.I.") and the Department of Health were investigating Dr. Harlan for multiple improprieties in 1995, prior to Petitioner's trial (Doc. 40).
Petitioner maintains the requested discovery is necessary to secure records relevant to the investigation of this case, limited depositions related to uncovering critical evidence, and other testimony relevant to issues presently before the Court. Petitioner argues this discovery is necessary to allow him to assemble additional evidence to present at the evidentiary hearing he intends to seek and to oppose Respondent's anticipated summary judgment motion.
Petitioner argues the requested discovery is relevant not only for the cause-and-prejudice showing necessary to surmount the procedural default barrier of his Brady/Giglio claim (Pet., Claim II.B.1. the State's concealment of exculpatory evidence), his Napue claim(Pet., Claim II.B.2. the State's presentation of false evidence and/or argument), and his Strickland claim(Pet., Claim II. D. trial counsel's failure to rebut Dr. Harlan's testimony), but also to establish those claims.*fn1 In addition, Petitioner contends he is entitled to discovery to obtain additional proof of innocence, having already made, according to Petitioner, a credible showing of actual innocence with scientific evidence submitted in the form of affidavits from his experts (Pet., Claim II. D. & E.).
The state appellate court denied his request for a remand to develop his Brady/Giglio, Napue, and Strickland claims and Petitioner theorizes the basis was likely because the State affirmatively represented to the court there was no material suppressed by the state and Dr. Harlan had neither been charged nor found civilly or criminally liable for any wrongdoing in connection with his duties as medical examiner---a representation which Petitioner asserts is incorrect (Addendum No. 43, p. 4).
Respondent argues Petitioner has failed to show the required "good cause" to support an order of discovery. Respondent contends Petitioner has procedurally defaulted on several of the claims raised in his habeas petition and has failed to identify what specific claims will be advanced by the discovery requests. Nevertheless, in addition to responding to each specific request, Respondent contends Petitioner defaulted on his claims concerning Dr. Harlan's testimony, which was presented in rebuttal at petitioner's trial, and has failed to show, as required by 28 U.S.C. § 2254(e)(2), why these factual predicates could not have been discovered prior to filing his habeas petition.*fn2
Respondent has missed the mark with his last contention. The issue is not whether Petitioner was faultless for failing to develop a factual basis for certain claims in state court so as to entitle him to an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2). Rather, the issue is whether Petitioner has demonstrated good cause to obtain the requested discovery.
A habeas petitioner is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that a habeas petitioner "shall be entitled to invoke the process 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."
A petitioner has the burden of establishing he is entitled to discovery. Id. at 904. Good cause exists 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. See Harris v. Nelson, 394 U.S. 286, 300 (1969); Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991). Petitioner need not show that additional discovery would definitely lead to relief. Rather, he need only show good cause that the evidence sought would lead to relevant evidence regarding his petition. But, he may not make this showing through vague and conclusory assertions, see Rule 6, nor may he embark on a fishing expedition intended to develop claims for which there is no factual basis. See Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994), cert. denied, 513 U.S. 1192 (1995).
Thus, "'[w]here 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, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry.'" Bracy v. Gramley, 520 U.S. 899, 908-909 (1997) quoting Harris v. Nelson, 394 U.S. at 299. But, when making the determination of whether petitioner is entitled to discovery, this Court must remember that, when the state courts have afforded a habeas corpus petitioner a significant opportunity to conduct discovery, this Court must defer to the state court's factual findings. See Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001). The United States Supreme Court has said that "Habeas Corpus Rule 6 is meant to be 'consistent' with Harris." ...