United States District Court, M.D. Tennessee, Nashville Division
TODD J. CAMPBELL, District Judge.
Pending before the Court is the Petitioner's Application To Proceed In Forma Pauperis (Docket No. 58). Through the Application, the Petitioner requests that he be allowed to proceed in forma pauperis in this proceeding. The Court finds that the Petitioner is a pauper and the Application is granted on that basis.
Also pending before the Court are the Petitioner's Motion For Discovery (Docket Nos. 57), the Government's response (Docket No. 65) in opposition, and the Petitioner's Reply (Docket No. 67). Through the Motion, the Petitioner seeks the production of various items, which the Court will address in turn below.
Rule 6(a) of the Rules Governing § 2255 Cases in the United States District Courts provides that a district judge may permit a party to conduct discovery "for good cause." The Supreme Court has stated that "good cause" is shown, for purposes of Rule 6(a), "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." Bracy v. Gramley, 117 S.Ct. 1793 (1997)(quoting Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969)). Subsection (b) of Rule 6 provides that the party requesting discovery must provide reasons for the request and must specify any requested documents. Following a two-week jury trial, the Petitioner was convicted of all 21 charges in the Fifth Superseding Indictment: conspiracy to commit solicitation of murder for hire; conspiracy to commit murder for hire; two counts of murder for hire; two counts of solicitation to commit murder for hire; conspiracy to distribute marijuana, codeine, cocaine, dihydrocodeine, alprazolam, and diazepam; distribution of marijuana; three counts of distribution of cocaine; two counts of possession with intent to distribute various controlled substances; possession and distribution of pseudoephedrine; possession of a machine gun; possession of an unregistered firearm; possession of a machine gun in furtherance of a drug trafficking crime; possession of a firearm in furtherance of a drug trafficking crime; solicitation to murder a federal employee; and two counts of obstruction of justice. (Docket Nos. 166, 252, 338 in Case No. 2:06-00019).
In his Motion To Vacate (Docket No. 1), the Petitioner has raised 55 separate claims, including right to counsel and due process claims based on the admission of Petitioner's statements to various Government witnesses; due process claims based on the Government's failure to comply with discovery obligations; claims that officers illegally searched Petitioner's residence and seized his computer equipment; double jeopardy claims regarding his sentence; and numerous claims of ineffective assistance of counsel.
The Petitioner requests that the Government produce the following items:
Request No. 1 - The Petitioner seeks information possessed by the Tennessee Department of Revenue ("TDR") relating to seizures of his property. The Petitioner argues that this information would include a fax he sent to the TDR on May 24, 2006 challenging the seizures and requesting a hearing. According to the Petitioner, the information would support his claim of bad faith conduct by the Government, and his claim that trial counsel failed to adequately investigate. In its Response, the Government states that it does not possess, and has not possessed, TDR records.
The record in Petitioner's criminal case indicates that the Court held a lengthy hearing on this and other issues on September 26, 2008, during which TDR employees and other witnesses testified. (Transcript of September 26, 2008 Hearing (Docket No. 359 in Case No. 2:06-00019)). The TDR witnesses testified that they did not receive any notice that the Petitioner contested the seizure or the sale of the computers and other assets seized from the Petitioner. (Id.)
The Petitioner has offered no evidence indicating that the Government is in possession of the May 24, 2006 fax he describes. Nor has the Petitioner shown that the other TDR records he requests are in the possession of the Government. Accordingly, the Petitioner has not shown "good cause" for this request, and it is denied. Certain TDR records were admitted at the September 26, 2008 hearing (Exhibits 4, 9, and 10), however, and the Court directs the Clerk of Court to provide a copy of those exhibits to the Petitioner.
Request No. 2 - The Petitioner requests the "portable USB memory stick' storage device confiscated by the government from Dunn on September 11, 2008." (Docket No. 57, at 4). The Petitioner argues that this information would support his claim that counsel failed to adequately investigate his case.
The record in Petitioner's criminal case indicates that officials at the Grayson County Jail confiscated the memory stick from the Petitioner in September, 2008 during a search of his cell that occurred after the Petitioner committed certain disciplinary infractions. (Docket No. 210-1 in Case No. 2:06-0001). Prison rules required that the memory stick be kept in the prison law library. (Id.) Officials reviewed the data on the memory stick and found that it contained, in addition to legal material, the names of certain jail deputies and their personal cell phone numbers, as well as information about other inmates. (Id.)
In its Response to the pending Motion, the Government indicates that Assistant United States Attorney Byron Jones reviewed the data on the memory stick after it was confiscated to determine if criminal charges should be brought based on its contents, and to ensure that the Assistant United States Attorney who was prosecuting the Petitioner's criminal case would not have access to any legal materials on the memory stick. The Response further states that Hershel Koger, Petitioner's counsel after trial and prior to sentencing, subsequently picked up the memory stick from the U.S. Attorney's Office, but that AUSA Jones has a copy of the information taken from the memory stick.
The Court concludes that the Petitioner has shown "good cause" for obtaining a copy of the legal material on the memory stick. Any information regarding the jail, its personnel, or other inmates, however, should be redacted from the copy provided to the Petitioner as this information is not relevant to Petitioner's claims.
Request No. 3 - The Petitioner requests any State or Federal documents or other material evidencing all purchases of pseudoephedrine between 2001 and 2007 by the Petitioner; Misty Langford, the Petitioner's Co-Defendant; Julie Packingham (Ms. Langford's sister); Ryan Packingham (Ms. Packingham's husband); Crystal Scearse (Ms. Langford's friend); Nick Christian (Confidential Informant No. 1); J.C. Harville, Jr. (Confidential Informant No. 2); J.C. Harville, Sr. (Mr. Harville's father); Leon Hall (Ms. Langford's father); and Melissa Byrd/Melissa Hall (Mr. Hall's current wife). The Petitioner argues that this information would show that Co-Defendant Langford and her friends, rather than the Petitioner, were collecting pseudoephedrine, and would support his claim that counsel failed to adequately investigate his case relating to the allegation about trading a machine gun for pseudoephedrine.
In its Response, the Government states that it does not possess, and has not possessed, the material the Petitioner requests.
Petitioner has offered no evidence indicating that the material he requests exists, or if it exists, that it is in the possession of the Government. Accordingly, the Petitioner has not shown "good cause" for this request, and it is denied.
Request No. 4 - The Petitioner requests any consent or waiver forms he signed between January 12, 2004 and February 27, 2004, at the request of any employee of the Putnam County Sheriff's Office. In addition, the Petitioner requests information regarding the Department's archiving and storing of executed consent or waiver forms. The Petitioner argues that this information is relevant to support his testimony, and impeach the testimony of Detective Randy Roland, regarding the dates and times his residence was searched.
The record indicates that Petitioner's trial counsel asked Detective Roland at trial about whether he searched the Petitioner's residence in 2003 or 2004, prior to the date of any charges in the Fifth Superseding Indictment. (Trial Transcript, at 379-81 (Docket No. 309 in Case No. 2:06-00019)). In response to the Government's objection, trial counsel stated that he was attempting to show that Detective Roland was biased against the Petitioner before the dates of the charges. (Id.) The Court permitted counsel to explore the issue, and Detective Roland testified that he had accompanied Detective Burgess to Petitioner's residence sometime in 2003, but did not search the residence and could not recall any details. (Id.)
The Petitioner has offered no evidence of the existence of a waiver or consent form for the dates requested. Even if the Court assumes the existence of such a waiver or a consent form, however, the Petitioner has not shown how such a document would be relevant in supporting his pending claims. ...