DECISION AND ORDER ON PETITIONER'S MOTION FOR DISCOVERY
MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner's Motion for Limited Discovery (ECF No. 33). The Motion was filed and served July 10, 2017. Respondent has not opposed the Motion and the time to do so under S. D. Ohio Civ. R. 7.2 has expired.
A habeas petitioner is not entitled to discovery as a matter of course, but only upon a factspecific showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000). Before determining whether discovery is warranted, the Court must first identify the essential elements of the claim on which discovery is sought. Bracy, 520 U.S. at 904, citing United States v. Armstrong, 517 U.S. 456, 468 (1996). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001), cert. denied, 537 U.S. 831 (2002), citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000). "Even in a death penalty case, `bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary hearing.'" Bowling v. Parker, 344 F.3d 487, 512 (6
Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Williams v. Bagley, 380 F.3d 932, 974 (6
In conducting the analysis that led to granting discovery in Bracy v. Gramley, supra, the Supreme Court provided at least part of the template which lower courts should follow in deciding discovery motions in habeas corpus cases.
First of all, it identified the claims to which the sought discovery in that case related and specifically determined whether they were claims upon which habeas corpus relief could be granted at all. Federal habeas corpus is, of course, available only to correct wrongs of constitutional dimension. 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). In Bracy the claim was that the trial judge was biased in favor of other defendants who had bribed him and therefore had a motive to be harsh with those, like the petitioner, who had not. The Supreme Court distinguished this kind of claim of judicial disqualification from other non-constitutional claims which would not be cognizable in habeas corpus. This part of the Bracy analysis makes it clear that discovery should not be authorized on allegations in a habeas corpus petition which do not state a claim upon which habeas corpus relief can be granted.
Second, the Supreme Court identified circumstances which corroborated Bracy's theory of relief and request for discovery:
520 U.S. 907-908.
Id. at 909. The quoted "specific allegations" language is from Harris v. Nelson, supra, and demonstrates that the Supreme Court in both cases was adverting not to the
Other parts of habeas corpus procedural jurisprudence, although not relevant to the particular decisions in Harris and Bracy, also should inform the a district court's exercise of its discretion in granting discovery under Habeas Rule 6.
Turner v. Hudson, Case No. 2:07-cv-595 (Decision and Order Granting in Part and Denying in Part Petitioner's Motion for Discovery, July 11, 2008).
In this case the claim on which discovery is sought is actual juror bias. Petitioner has submitted evidence in the form of the affidavits of Juror 314's former co-workers which support that claim. The Magistrate Judge has already determined in the Interim Report and Recommendations that the state courts' ultimate determination on this claim is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings and Petitioner is therefore not barred from an evidentiary hearing on his claims by Cullen v. Pinholster, 563 U.S. 170 (2011). The Interim Report and Recommendations is subject to Respondent's Objections, but the Interim Report also posits that a final determination on Petitioner's Second Ground for Relief cannot properly be made until an evidentiary hearing is held. The discovery sought is therefore appropriate in preparation for such a hearing and perhaps in eliminating its necessity.
Petitioner is accordingly granted leave to depose juror T.M. (aka Juror 314) regarding the issues in this case. He is also granted leave to depose the prosecutor who told Petitioner's counsel prior to sentencing about an email group that he had formed. That deposition must be limited to the topic of the email group. Because the prosecutor in question is not a party to this case and has not had an opportunity to be heard on the question of his deposition, Petitioner shall subpoena the prosecutor sufficiently in advance of the deposition to allow the prosecutor to file a motion to quash. Petitioner's counsel is directed to serve a copy of this Order on the prosecutor upon its receipt.
Petitioner also seeks leave to subpoena the medical records of Juror T.M.'s son to show he was Petitioner's patient. The present age of the son is not disclosed; he may now be an adult. Because of his privacy interest in his medical records, the Court declines to authorize a subpoena for them until less intrusive efforts to obtain the relevant information have been proven unsuccessful. (E.g., if Juror T.M. concedes the fact at deposition).
The discovery permitted herein shall be completed not later than October 1, 2017.