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Dellinger v. Mays

United States District Court, E.D. Tennessee

March 30, 2018

JAMES DELLINGER, Petitioner,
v.
TONY MAYS, Warden, Respondent.[1]

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.

         This case is before the Court upon an amended petition for habeas corpus under 28 U.S.C. § 2254 brought by James Dellinger (“Petitioner”). Presently pending is Petitioner's motion for discovery [Doc. 113]. Respondent has filed a response in opposition [Doc. 115], to which Petitioner has replied [Doc. 121]. Because Petitioner has failed to establish good cause for any of his discovery requests, his motion for discovery [Doc. 113] will be DENIED.

         I. BACKGROUND

         On February 24, 1993, Petitioner, along with codefendant Gary Wayne Sutton, was convicted by a Sevier County jury of premeditated first-degree murder in the death of Connie Branam. Petitioner was sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal, see State v. Dellinger, No. 03C01-9403-CR-0090, 1995 WL 406953 (Tenn. Crim. App. July 11, 1995), and the Tennessee Supreme Court denied permission to appeal.

         Petitioner filed a petition for state post-conviction relief which the trial court denied. The Tennessee Court of Criminal Appeals affirmed the trial court's denial of that petition, Dellinger v. State, No. E2004-010-68-CCA-R3-PC, 2006 WL 1679595 (Tenn. Crim. App. June 19, 2006), and the Tennessee Supreme Court again denied permission to appeal.

         Petitioner filed a federal habeas petition on September 11, 2009. Although the petition was untimely under 28 U.S.C. § 2244(d), Magistrate Judge C. Clifford Shirley, following an evidentiary hearing, concluded that equitable tolling should be applied in this case [Doc. 83], and the Court accepted in whole his recommendation [Doc. 88]. On April 27, 2016, Petitioner filed the pending amended habeas petition raising a plethora of grounds for relief, including, inter alia, multiple claims of ineffective assistance of counsel and numerous claims alleging the concealment of exculpatory evidence [Doc. 104].

         Petitioner now seeks discovery of physical evidence and law enforcement records, as well as leave to serve a deposition subpoena under Federal Rule of Civil of Procedure 45, for the purpose of “investigating and establishing violations of his constitutional rights” as alleged in his amended petition [Doc. 113 p. 1]. In particular, he requests ballistics evidence and tire tread impressions; records from various law enforcement agencies involving investigations into a 1990 assault on Mike Vaughn, a retaliatory attack committed by Lester Ray Johnson, and any records indicating Branam was cooperating with law enforcement; and, finally, leave to take the deposition of Billy Griffin [Doc. 113 p. 3].

         Respondent opposes the motion. As an initial matter, Respondent contends that discovery should not be permitted in an attempt to develop facts related to any claims that were adjudicated on the merits in state court because the Court's review of such claims will be confined to the state court record [Id. pp. 5, 6, 11].[2] Although Respondent has raised a credible argument on this point, the Court need not wade into these procedural waters at this time because, substantively, Petitioner has failed to establish good cause for the requested information.

         II. APPLICABLE LAW

         Unlike a normal civil case, there is no entitlement to discovery in habeas proceedings as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). Rather, a district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).

         Rule 6(a) of the Rules Governing Section 2254 Cases provides: “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.” A party requesting discovery must provide “reasons for the request . . . and must specify any requested documents.” Rule 6(b), Rules Governing Section 2254 Cases in the United States District Courts.

         The Supreme Court has held that “good cause” under Rule 6(a) is met “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, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 295 (1969)). The burden of demonstrating the materiality of information requested under Rule 6(a) is on the moving party. See Stanford, 266 F.3d at 460.

         Before addressing whether Petitioner is entitled to discovery under Rule 6, the Court first must identify the “essential elements” of the claims he hopes to be able to establish if the facts are fully developed. See Bracy, 520 U.S. at 905 (citing United States v. Armstrong, 517 U.S. 456, 468 (1996)). The Court then must determine whether the facts alleged, if proven, may be the basis for relief. Id. If so, discovery should be granted under Rule 6(a). Conversely, discovery requests based on allegations that would not develop facts that may entitle a petitioner to relief, even if the facts would be found in his favor, should not be granted. See Stanford, 266 F.3d at 460. And requests that amount to a “fishing expedition masquerading as discovery” also should not be granted. Id.

         III. ANALYSIS

         A. Physical Evidence

         Petitioner has requested discovery of the following physical evidence: (1) a rifle shell casing found at the crime scene in Sevier County, along with Petitioner's rifle; (2) tire tread impressions and photographs of Petitioner's truck and tires; and (3) the two .12 gauge shotgun hulls found at the crime scene in Blount County.[3] Petitioner avers generally that this physical evidence is related to his constitutional claims of ineffective assistance of ...


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