United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: MOTION FOR AUTOPSY REPORT (DOCKET ENTRY # 37); MOTION FOR PICTURES (DOCKET ENTRY # 39); MOTION TO ENFORCE COURT ORDER (DOCKET ENTRY # 38); MOTION FOR COURT ORDER TO PRODUCE BANK VIDEO AND PHOTOGRAPHIC MATERIAL (DOCKET ENTRY # 23)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
Petitioner John Wilborn (“petitioner”), convicted of first degree murder, kidnapping and rape, requests that respondent Kelly Ryan (“respondent”) produce a copy of an autopsy report (Docket Entry # 37) and “pictures of the crime scene” (Docket Entry # 39). Respondent did not include a copy of the autopsy report or the photographs in a two-volume addendum containing relevant documents from state court proceedings. (Docket Entry ## 34, 35). Petitioner additionally seeks to enforce a December 29, 2015 Order (Docket Entry # 20) requiring respondent to produce transcripts of a probable cause hearing. (Docket Entry # 38). Petitioner also requests a court order requiring respondent to produce a bank video and bank photographs. (Docket Entry # 23).
I. Autopsy Report
Petitioner initially sought the autopsy report in an August 2009 pro se motion filed in Massachusetts Superior Court (Essex County) (“the trial court”). (Docket Entry # 34, Add. 11). The trial court denied the motion as well as a second and third motion to obtain the report. (Docket Entry # 34, Add. 12-14, Nos. 142, 150 and 6/25/14 Entry).
In November 2015, the court ordered respondent to file an answer “or other proper responsive pleading” under Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (“the Rules”). (Docket Entry # 11). Respondent complied by filing a motion to dismiss seeking dismissal on the basis of a procedural default and untimeliness. (Docket Entry # 28). Petitioner argues that he needs the autopsy report to establish his actual innocence, which respondent argues is lacking as a means to avoid the procedural default (Docket Entry # 29). (Docket Entry # 37). Petitioner additionally maintains that the report will establish the ineffectiveness of his trial and appellate court counsel thereby, presumably, establishing cause for the procedural default asserted by respondent. (Docket Entry # 27, pp. 4-5).
Rule 5 of the Rules (“Rule 5”) requires respondent to file certain state court transcripts, briefs and opinions in conjunction with filing an answer to the petition. Rule 5(c), (d), 28 U.S.C. foll. § 2254. The rule does not expressly encompass production of state court exhibits. More importantly, Rule 5 does not apply because, in accordance with the November 2015 Order (Docket Entry # 11), respondent filed a responsive pleading under Rule 4 of the Rules (“Rule 4”) in lieu of an answer under Rule 5. See Advisory Committee Notes, Rule 5, 2004 Amendments (Rule 4 permits practice “where respondent files a pre-answer motion to dismiss”). Rule 4, in turn, allows respondent to file a motion to dismiss and does not expressly mandate production of exhibits filed in state court such as an autopsy report. See Advisory Committee Notes, Rule 4, 1976 Adoption (explaining that Rule 4 allows habeas judge “to authorize respondent to make a motion to dismiss based o information furnished by respondent”).
Rule 6 of the Rules (“Rule 6”) provides 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.” Rule 6, 28 U.S.C. foll. § 2254 (emphasis added). In order to show “‘good cause, ’” a petitioner “must present ‘specific allegations that give a court reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.’” Donald v. Spencer, 656 F.3d 14, 16 (1st Cir. 2011) (ellipses omitted). Although the autopsy report is presumably included in the state court record that respondent has not produced, Rule 6 “discovery” nonetheless provides petitioner a means to obtain the report. See, e.g., Harris v. Wenerowicz, 2012 WL 6965233, at *4 n.4 (E.D.Pa. May 22, 2012) (considering request for “numerous pleadings from the state court record” as governed by Rule 6), report and recommendation adopted, 2013 WL 373165 (E.D.Pa. Jan. 31, 2013); Kingery v. Dretke, 2006 WL 1441925, at *23 (S.D.Tex. May 23, 2006) (same).
Here, petitioner fails to show good cause because, except for generalized allegations of destruction of evidence, he does not explain in the motion (Docket Entry # 37) or in the further response (Docket Entry # 42) how the autopsy report would entitle him to habeas relief and avoid dismissal by establishing actual innocence or ineffective assistance of counsel under the Sixth Amendment. See Donald v. Spencer, 656 F.3d at 16; see also Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007) (“habeas proceeding is not a fishing expedition”). The First Circuit in Teti denied a discovery request under Rule 6 because it was “generalized and [did] not indicate exactly what information he seeks to obtain.” Id. Here, although petitioner identifies what he seeks to obtain (the autopsy report), he does not articulate the reasons why it would show ineffective assistance or actual innocence even though petitioner had the report as late as December 1994 and therefore knew its contents. See Donald v. Spencer, 656 F.3d at 18 (denying Rule 6 motion and explaining that petitioner “cites no facts upon which to base a conclusion that new DNA evidence will exonerate him”).
Furthermore, the December 1994 Memorandum and Order rejected various ineffective assistance of counsel claims. (Docket Entry # 19-3, pp. 20, 25-29, 33, Civil Action No. 11-11797-DJC).Independently reviewing the state court record and for reasons stated in the Memorandum and Order relative to ineffective assistance, the autopsy report does not merit production under Rule 6 even if petitioner’s allegations were specific.
Separately, this court declines to expand the record to include the report under Rule 7 of the Rules (“Rule 7”). This court will, however, expand the record to include the following documents if they still exist at the applicable court: (1) the March 1994 fourth motion for a new trial and/or any supporting memorandum filed by petitioner; and (2) a complete copy of the Massachusetts Supreme Judicial Court (“SJC”) docket for SJC-09547.
Petitioner next requests production of photographs of the crime scene, including pictures of decedent’s body across the threshold of a doorway. (Docket Entry ## 39, 42). In opposing the motion to dismiss, petitioner elucidates that, “[N]one of the pictures shows the body on its back while its on the threshold” as opposed to its right side. (Docket Entry # 36, p. 4) (apostrophes omitted). The pictures therefore contradict witness testimony that the body was on its back in a back bedroom, according to petitioner. (Docket Entry # 36, p. 4).
Construing the motion as a request for discovery under Rule 6, this court has the “discretion to grant” such “discovery for ‘good cause.’” Teti v. Bender, 507 F.3d at 60. Petitioner fails to show good cause because he does not provide specific allegations regarding the reasons why production would entitle him to habeas relief on the basis of actual innocence to refute the procedural default asserted by respondent (Docket Entry # 29) or on the basis of ineffective assistance of counsel to establish cause for the asserted procedural default. See Donald v. Spencer, 656 F.3d at 16 (to show “‘good cause’” Donald “must present ‘specific allegations’” demonstrating entitlement to habeas relief). In any event, as to the latter, trial counsel made a strategic decision to focus on a defense that ...