Troy Davis Discovery Order Hearing Date

8/9/2019 Troy Davis Discovery Order Hearing Date

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IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF GEORGIA 2OD (' 27 1 10: 50

SAVANNAH DIVISION

IN RE TROY ANTHONY DAVISASE NO. CV409-130ORDER

Before the Court are the Parties' Motions forDiscovery. (Docs. 34, 35.) For the following reasons,Respondent's Motion (Doc. 35) is GRANTED IN PART and DENIEDIN PART, and Petitioner's Motion (Doc. 34) is DENIED.Petitioner's counsel is ORDERED to provide answers to thegranted interrogatories by 5:00 p.m. on May 27, 2010. TheCourt will hold an evidentiary hearing on this matter at10:00 a.m. on June 30, 2010 in the Third Floor Courtroom ofthe Tomochichi Courthouse and Federal Building, located at125 Bull Street, Savannah, Georgia. The Parties areORDERED to file with the Court a list of all witnesses,affidavits, and other evidence they will be presenting atthe hearing by 5:00 p.m. on June 11, 2010.

BACKGROUNDOn August 17, 2009, the Supreme Court of the United

States transferred this Petition for a Writ of HabeasCorpus to this Court with instructions to "receivetestimony and make findings of fact as to whether evidencethat could not have been obtained at the time of trial

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clearly establishes petitioner's innocence."Doc. 1.) OnOctober 9, 2009, Respondent filed a Motion for Discovery.(Doc. 22.) The Motion sought materials presented byPetitioner at his state clemency hearing; permission todepose the attorneys, paralegals, notaries, and otherindividualsnvolvednbtainingffidavitsnPetitioner's behalf; and permission to depose the affiants.(Id.)n November 25, 2009, this Court entered an Orderdenying in part Respondent's Motion for Discovery. (Doc.30.) In that Order, the Court denied Respondent's requestfor the materials presented at the clemency hearing andreserved ruling on the deposition requests. (Id.) In itsJanuary 5, 2010 Order addressing the deposition requests,the Court directed the Parties to submit motions thatincluded a showing of good cause for seeking discovery,along with proposed interrogatories.Doc. 32.)hoseMotions are now befo re this Court.In Respondent's Motion, the State seeks to propoundmultiple interrogatories to both Petitioner's counsel andthe non-party affiants. (Doc. 35.) In support of itsrequest, Respondent cites "the unique circumstances of thiscase" (Id. at 2) and the need to develop "facts relevant tothe issues delineated by the Supreme Court"Id. at 3) .Specifically, Respondent argues that it "should be

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permitted to explore the circumstances surrounding theobtaining, signing and filing of the[] affidavits."Id.at 5-6.) Respondent proposes to explore thesecircumstances through specific and limited interrogatoriesto individuals involved in obtaining the affidavits, andeither deposing or propounding interrogatories to thoseindividuals who provided affidavits on Petitioner's behalf.(Id.) Petitioner has responded in opposition toRespondent's Motion, arguing that Respondent has failed toshow goo d cause.

In his Motion, Petitioner argues that good causeexists for allowing him to discover the contents of thepolice investigatory files concerning the murder of OfficerMacPhail, the assault on Larry Young, and the assault on

Michael Cooper. (Doc. 34 at 12.) In addition, Petitionerrequests that if Respondent's Motion is granted, Petitionerbe allowed to conduct reciprocal discovery.Id. at 2.)Tohatnd,etitionerasncludedroposedinterrogatories and document requests that would constitutethis reciprocal discovery.Id., Ex. A.)espondent hasresponded in opposition to Petitioner's Motion.

ANALYSISHabeas petitioners are not ordinarily entitled to

conduct discovery to gather support for their claim. See

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Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeaspetitioner, unlike the usual civil litigant in federalcourt, is not entitled to discovery as a matter of ordinarycourse."). District courts have discretion to authorizediscovery upon a showing of good cause.' Rule 6 of theRules Governing 2254 Cases in the United States DistrictCourts; see Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir.2006) . In addition, district courts have considerablediscretion to restrict the scope of any discovery in habeascases. See Rule 6 of the Rules Governing 2254 Cases inthe United States District Courts (granting district courtsdiscretion to limit the extent of discovery in habeascases); Bracy, 520 U.S. at 909. Further, any party seekingdiscovery "must provide reasons for the request." Rule

6(b) of the Rules Governing 2254 Cases in the UnitedStates District Courts.

A party can establish good cause for discovery byarticulating specific and non-conclusory allegationsshowing that full factual development will assist the courtin determining an issue before it.f. Harris v. Nelson,394 U.S. 286, 300 (1969)allowing discovery where a1Because this is an original petition based on anallegation of actual innocence, the diligence requirementcontained in 28 U.S.C. 254(e) (2) is inapplicable.House v. Bell, 547 U.S. 518, 5392006); Sibley v.Culliver, 377 F.3d 1196, 1207 ( 11th Cir. 2004)

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petitioner can show a possible entitlement to relief shouldthe facts be fully developed), Bracey, 520 U.S. at 908-09(same), Arthur, 569 F. 3d at 1311 (same) .nsupportedfactual allegations, amounting to little more thanspeculation, are insufficient to establish good cause. Id.That is, a party seeking discovery must go further thanmerely stating specific factual allegations that, if true,would assist the Court in determining an issue before it.Rather, the party must provide tangible support for itsassertions, allowing the Court to ensure habeas discoveryis not being used as a fishing expedition.'ee, e.g.,Phillips v. Stickman, 298 Fed. App'x 135, 137 (3d Cir.2008) (unpublished) ("Appellant's allegations regardingO'Toole are entirely without support in the record. Hence,he cannot demonstrate the requisite "good cause" under Rule6 . 1 1 ) ; Beach v. McCormick, 191 F.3d 459, at *4 ( 9th Cir.

2The Court notes that discovery in habeas is not as broadas pre-trial discovery. Harris, 394 U.S. at 295 (notingthat "[a]t the very least, it is clear that there was nointention to extend to habeas corpus, as a matter of right,the broad discovery provisions" applicable to ordinarycivil litigation (citing Hickman v. Taylor, 329 U.S. 495,500 (1947))) . Such narrowing of discovery in habeas isespecially cogent in a case such as this one because"Federal courts are not forums in which to relitigate statetrials."utryVEstelle, 464 U.S. 1, 3 (1983) .erethis Court to grant far-reaching, as opposed to highlyfocused,iscovery on the subject of Petitioner'sinnocence,heourtould bevisceratinghislongstanding principle.

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1999) (Table) ("Rule 6 of the Federal Rules GoverningSection 2254 Cases, however, does not allow for fishingexpeditions and unsupported speculative theories do notwarrant discovery."); Rector v. Johnson, 120 F.3d 551, 563(5th Cir. 1997) ("Because Rector has failed to make atleast a prima facie showing of what specifically he intendsto find and prove, we conclude that Rector's discoveryrequest is nothing more than a desire to engage in afishing expedition."); Perillo v. Johnson, 79 F.3d 441, 445(5th Cir. 1996) (allowing discovery where specificallegations creating good cause were backed by a thirdparty af fidavit) .

Based on these principles, the Court will only grantdiscovery in this case where a party provides the Courtwith specific and non-conclusory allegations that show therequested discovery will uncover facts that assist theCourt in ascertaining "whether evidence that could not havebeen obtained at the time of trial clearly establishespetitioner's innocence." 3 (Doc. 1.) Factual development as

3 This does not necessarily mean that if Petitioner issuccessful in showing that the unavailable evidence clearlyestablishes his innocence, he is automatically entitled torelief under 28 U.S.C. 2254. The question of whetherPetitioner's "actual innocence" claim is cognizable under 2254 has yet to be determined by this or any otherFederal court.See Doc. 1 at 2 (recognizing that districtcourt must determine viability of actual innocence claim

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to when the evidence Petitioner is now using to forge hisactual innocence claim was first available is of obvioussignificance and utility in determining whether thatevidence could have been obtained at the time of trial.Therefore, its discovery would be supported by good cause.A party seeking to develop facts pertaining to questionseither unrelated or only tangentially related to this issuewould be unable to establish the good cause required fordiscovery absent a specific explanation and showing of whatthe party expects to find and how that finding would aidthe Court in deciding the issue befo re it.I .ESPONDENT'S REQUEST TO PROPOUND INTERROGATORIES TOPETITIONER'S COUNSELIn its Motion, Respondent seeks permission to propoundnineteen interrogatories to Petitioner's counsel.Doc.35, Ex. A at 2-5.)he Court addresses each proposedinterrogatory in turn.A. Proposed Interrogatory OneRespondent seeks to discover the witnesses oraffidavits Petitioner intends to rely on in making hisactual innocence claim. (Id. at 2.) Presumably,Respondent is referring to those witnesses and affidavits

with respect to 2254).) In granting limited discovery inthis case, the Court does not mean to recognize theviability of such a claim. Rather, the Court will rule onthat issue at a later date.

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Petitioner intends to present to the Court during anevidentiary hearing on this issue. However, discovery onthis issue is unnecessary because the Court will requirethe Parties to disclose this information prior to thehearing. Accordingly, both Parties are ORDERED to filewith this Court a list of all witnesses, affidavits, andother evidence they will be presenting at the EvidentiaryHearing by 5:00 p.m. on June 11, 2010. Because Respondentwill be privy to this information regardless of discovery,good cause does not exist to propound this interrogatory.Therefore, Respondent's proposed interrogatory request isDENIED.

B. Proposed Interrogatory TwoIn this request,espondenteeksnformation

concerning how Petitioner located each affiant. (Id.) Inaddition, Respondent requests "the entirety of thecircumstances resulting in the procurement of each specificperson's affidavit." (Id.) This request does not seekspecific information regarding the timing of theprocurement of the af fidavits.

Respondent fails to show good cause for thisdiscovery. In proposing this request, Respondent merelyspeculates that learning of the circumstances surroundingprocurement of the affidavits, as opposed to information

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related specifically to when the affidavits were obtained,may show a lack of diligence on Petitioner's part or mayuncover useful impeachment evidenceDoc. 33 at 4.)However,erepeculationnd unsupportedactualallegations are insufficient to establish good cause fordiscovery.ee Arthur, 569 F.3d at 1311.ccordingly,Respondent's proposed interrogatory request is DENIED .4C. Proposed Interrogatory Three

Here, Respondent seeks information concerning whichmembers of Petitioner's defense team prepared eachaffidavit and what position they held on the defense team.However, the information sought by Respondent is, at best,only marginally related to "whether evidence that could nothave been obtained at the time of trial clearly establishes

Petitioner's innocence." (Doc. 1.) Accordingly,Respondent's proposed interrogatory request is DENIED.

4 0f course, the Court's denial of Respondent's interrogatoryrequest does not mean that Respondent cannot conduct itsown investigation into these matters. In fact, Respondenthas always been free to contact these affiants and ask themquestions concerning either their original testimony ortheir later affidavit. Having failed to do so, Respondentnow seeks to gather this information using the imprimaturof the Court. However, the Court will not sanction aninvestigation that Respondent could have conducted earlierwithout a showing of good cause, which Respondent hascompletely failed to establish.

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D. Proposed Interrogatory FourIn this request, Respondent seeks information

regarding the "means or methods . . . used to substantivelydraft and obtain signatures on each of the affidavits."(Doc. 35, Ex. A at 3.) However, Respondent does notexplain what information it expects to find with thisrequest, provide any substantiation for its request toassure the Court that the request is more than a fishingexpedition, or show how the evidence it expects to findwill aid the Court in determining "whether evidence thatcould not have been obtained at the time of trial clearlyestablishes Petitioner's innocence." (Doc. 1.) Therefore,Respondent has failed to establish good cause for thisproposed interrogatory request, which is DENIED.

E. Proposed Interrogatory Request FiveHere, Respondent seeks information about whether

members of Petitioner's defense team, or the affiantsthemselves, shared the contents of any affidavits withother affiants. (Doc. 35, Ex. A at 3.) Respondent doesnot explain what this discovery will uncover, or why thefacts Respondent expects to uncover are relevant to thequestion of "whether evidence that could not have beenobtained at the time of trial clearly establishesPetitioner's innocence."Doc. 1.) Apparently, Respondent10Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 10 of 29


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seeks to attack the creditability of the affidavits, butfails to provide any explanation as to what facts itexpects to find that challenge their credibility, let aloneprovide an iota of factual support for its allegations.Such speculation is insufficient to establish good cause.See Arthur, 569 F.3d at 1311. Accordingly, Respondent'sproposed interrogatory request is DENIED.

F. Proposed Interrogatory SixIn this request, Respondent asks "[wiho on the defense

team (including both name and position) notarized each ofthe affidavits." (Doc. 35, Ex. A at 3.) The Court failsto see the purpose of this request. Obviously, the namesof the individuals who notarized the affidavits are on thedocuments, obviating the need for discovery into that

question. To the extent Respondent seeks informationconcerning what role the notary played on Petitioner'sdefense team, that information is irrelevant to the issuebefore this Court.ccordingly, Respondent's proposedinterrogatory request is DENIED.G. Proposed Interrogatory Seven

Here, Respondent seeks information concerning thephysical locations where each affidavit was signed. (Id.)Again, Respondent fails to explain or show how this inquiryis relevant to "whether evidence that could not have been

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obtained at the time of trial clearly establishesPetitioner's innocence." (Doc. 1.) Accordingly,Respondent's proposed interrogatory request is DENIED.

H. Proposed Interrogatory EightIn this Request, Respondent seeks "the basis for the

substantive content of each affidavit." (Doc. 35, Ex. A at3.)owever, Respondent does not explain why thisdiscovery is necessary. The affidavits themselves shouldcontain the bases for their content; otherwise, theprobative value of the affidavit is negligible and would bedisregarded by the Court. 5 That is, there is no need forthe requested interrogatory because either the affidavitscontain the bases for their substantive content or, if theydo not, they are irrelevant to the issue before the Court.

Accordingly, Respondent's proposed interrogatory request isDENIED.

I. Proposed Interrogatory NineHere, Respondent requests the documents relied upon in

drafting the aff idavits.Id.) Also, Respondent seeks theproduction of any draft of an innocence affidavit.Id.)For example, an affidavit stating only that John Doe

committed a crime contains no support for its conclusionand would be disregarded by the Court. However, anaffidavit containing the basis for the conclusion that Mr.Doe committed a crime, such as witnessing the eventfirsthand, possesses some pro bative value.

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Again, Respondent does not explain what information itexpects to find, provide any substantiation for its requestto assure the Court that the request is more than a fishingexpedition, or show how the evidence it expects to findwill aid the Court in determining "whether evidence thatcould not have been obtained at the time of trial clearlyestablishes Petitioner's innocence." (Doc. 1.)Accordingly, Respondent's proposed interrogatory request isDENIED.

J. Proposed Interrogatory TenIn this request, Respondent seeks "any notes of

interviews with the affiants who signed 'innocence'affidavits . . . or notes of interviews with persons whowere interviewed but declined to produce affidavits."(Doc. 35, Ex. A at 9-10.) Again, Respondent does notexplain what information it expects to find with thisrequest, provide any substantiation for its request toassure the Court that the request is more than a fishingexpedition, or show how the evidence it expects to findwill aid the Court in determining "whether evidence thatcould not have been obtained at the time of trial clearlyestablishes Petitioner's innocence." (Doc. 1.) Therefore,Respondent has failed to show good cause for this discoveryand its proposed interrogatory request is DENIED.

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K. Proposed Interrogatory ElevenHere, Respondent requests information on the role that

Petitioner, Petitioner's friends, or Petitioner's familyhad in locating or obtaining any of the affidavits.Doc.35, Ex. A at 4.) Specifically, Respondent asks if "anymember of Petitioner's' [sic] immediate or extended familyor friends ever provide[d] the names of [the] affiants."(Id.) To the extent Respondent is seeking informationconcerning how the affiants were located, the Court findsthat Respondent has failed to establish good cause.Respondent does not explain what information it expects tofind with this request, provide any factual support toassure the Court that the request is more than a fishingexpedition, or show how the evidence it expects to find

will aid the Court in determining "whether evidence thatcould not have been obtained at the time of trial clearlyestablishesetitioner'snnocence."Doc..)Accordingly,hat portion of Respondent's proposedinterrogatory request is DENIED.However, facts concerning when, if ever, members ofPetitioner's immediate or extended family, or friendsprovided the names of the affiants to Petitioner's defenseteam is plainly relevant to the Court's inquiry because itgoes directly to the question of when the evidence

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Petitioner now relies on to support his claim of innocencefirst became available. Accordingly, this portion ofRespondent's proposed interrogatory request is GRANTED.Petitioner's counsel is DIRECTED to answer the followinginterrogatory: When, if ever, did any member ofPetitioner's immediate or extended family, or friendprovide the names of the affiants contained in Attachment Aof Respondent's Motion for Discovery to anyone acting onbehalf of Petitioner as a member, past or present, of hisdefense team?

L. Proposed Interrogatory TwelveIn this request, Respondent asks if any of the

affiants voluntarily contacted Petitioner's counsel andprovided the information contained in their affidavit prior

to having any contact with Petitioner; Petitioner's family,friends, or counsel; or anyone working on Petitioner'sbehalf. (Doc. 35, Ex. A at 4.) Again, this inquiry goesdirectly to when the evidence Petitioner is currentlyrelying upon became available. That is, Respondent hasshown good cause for this interrogatory because it assiststhe Court in determining when any member of Petitioner'sdefense team first learned of the information now containedin the affidavits.herefore, Respondent's proposedinterrogatory request is GRANTED. Petitioner's Counsel is15Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 15 of 29


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DIRECRED to answer to following interrogatory:hen, ifever, did any of the affiants contained in Attachment A ofRespondent's Motion for Discovery come forward and contactanyone acting on behalf of Petitioner as a member, past orpresent, of his defense team and provide the informationcontained i n their affidavit?

M. Proposed Interrogatory ThirteenHere, Respondent requests information regarding when

"anyone acting on behalf of Petitioner as a member of thedefense team" first made contact with each of the affiants.(Id.) This inquiry goes directly to the question of whenthe evidence Petitioner is currently relying upon becameavailable. Therefore, Respondent has shown good cause forthis interrogatory because it assists the Court indetermining when Petitioner's counsel first learned of theinformation Petitioner now relies on to support his claimof innocence. Therefore, Respondent's proposedinterrogatory request is GRANTED. Petitioner is DIRECTEDto answer the following interrogatory: When was the firsttime anyone acting on behalf of Petitioner as a member,past or present, of his defense team made contact with eachof the affiants contained in Attachment A of Respondent'sMotion for Dis covery?

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N. Proposed Interrogatory FourteenIn thisequest,espondenteeksnformationconcerning the number of times any individual acting on

Petitioner's behalf contacted each affiant. (Id.) Inaddition, Respondent asks for the location and length of,along with who was present for, each conversation. (Id. at4-5.) This request again seeks information regarding how,rather than when, the af fidavits were procured.

Respondent has not shown good cause for this discoverybecause it concerns the circumstances surrounding thesecuring of each affidavit, not when Petitioner firstlearned of the information they contain. Respondentspeculates that learning of circumstances surrounding theprocurement of the affidavits, as opposed to informationrelated specifically to when the affidavits were obtained,may show a lack of diligence on Petitioner's part or mayuncover useful impeachment evidence. (Doc. 33 at 4.)However, Respondent's unsupported allegations are merespeculation and fail to establish good cause. See Arthur,569 F.3d at 1311.ccordingly, Respondent's proposedinterrogatory request is DENIED.

0. Proposed Interrogatory FifteenHere, Respondent requests information concerning "any

potential 'innocence' affiant, witness, or person contacted

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who declined to give and/or sign an affidavit."Doc. 35,Ex. A at 5.) However, Respondent has not established goodcause for this discovery.ndividuals who refused toprovide Petitioner with affidavits regarding innocence arenot a part of his newly gathered evidence. Again,Respondent fails to explain what discovery will show, anyfactual support for Respondent's allegations, or howdiscovery will assist the Court in determining "whetherevidence that could not have been obtained at the time oftrial clearly establishes Petitioner's innocence."Doc.1.)ccordingly, Respondent's proposed interrogatoryrequest is DENIED.P. Proposed Interrogatory SixteenIn this request, Respondent seeks the names of allindividuals "who participated in the investigation of the'innocence' allegations." (Doc. 35, Ex. A at 5.) Again,Respondent fails to articulate what evidence it expects tofind and how that evidence would assist the Court.Therefore, Respondent has not established good cause forthis discovery.ccordingly,espondent's proposedinterrogatory request is DENIED.

Q. Proposed Interrogatory SeventeenHere, Respondent requests information on whether any

type of incentive was provided to any individual to secure

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their aff idavit.Id.) Once again, Respondent has failedto establish good cause. Presumably, Respondent believesthat this request may uncover impeachment evidence.However, Respondent fails to explain what evidence itbelieves will be uncovered or provide the Court with anyreason to believe this interrogatory is anything more thana fishing expedition.Doc. 33 at 4.)s such,Respondent's mere speculation fails to establish goodcause.ee Arthur, 569 F.3d at 1311.ccordingly,Respondent's proposed interrogatory is DENIED.

R. Proposed Interrogatory EighteenIn this request, Respondent seeks "an explanation for

the failure to present all of the affidavits . . . duringstate habeas corpus proceedings or by filing anextraordinary motion for new trial."Doc. 35, Ex. A at5.)he request, however, does not develop any factualsupport that might assist the Court in making itsdetermination. Rather, this interrogatory request asksPetitioner for a preview of his legal argument with respectto why the innocence affidavits were not presented in priorproceedings. The purpose of discovery is to "aid indeveloping facts." Advisory Committee's Note to Rule 6 ofthe Rules Governing 2254 Cases in the United StatesDistrict Courts (granting district courts discretion to

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limit the extent of discovery in habeas cases)Respondent's request does not serve this purpose, and is,therefo re, inappropriate.urthermore, as the Court willbe presented with Petitioner's argument on this subjectregardless of discovery, it cannot be said that thisrequest will assist the court in determining an issuebefore it. Finally, this request is only marginallyrelated to the question of "whether evidence that could nothave been obtained at the time of trial clearly establishesPetitioner'snnocence."Doc..)ccordingly,Respondent's proposed interrogatory request is DENIED.S. Proposed Interrogatory NineteenHere, Respondent seeks any additional affidavits notpreviously disclosed, that Petitioner intends to rely on assupport for his claim. The Court is aware that it would beunfair to Respondent for Petitioner to present previouslyundisclosed affidavits or witnesses at the hearing.Likewise, the opposite is equally true. Therefore, theCourt has ordered both Parties to file with the Court alist of all witnesses, affidavits, and other evidence theywill be presenting at the evidentiary hearing. SeePart I.A.s a result, Respondent's proposed discoveryrequest is DENIED. 20Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 20 of 29


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T. Additional InterrogatoryNot contained in Respondent's requests is an

interrogatory seeking information as to when the first timeany of Petitioner's immediate or extended family, orfriends made contact with an individual who later providedan affidavit. This information is directly related to thequestion of when Petitioner first learned of the evidencehe now relies on to support his claim of innocence.Therefore, it will assist the Court in determining "whetherevidence that could not have been obtained at the time oftrial clearly establishes Petitioner's innocence."Doc.1.) Accordingly, Petitioner's counsel is DIRECTED toanswer the following interrogatory: When was the first timeany of Petitioner's ixmnediate or extended family, orfriends made contact with any of the affiants contained inAttachment A of Res pondent's Motion for Di scovery?II. RESPONDENT'S REQUEST TO PROPOUND INTERROGATORIES TO

THE AFFIANTSIn its Motion, Respondent seeks permission to propound

fourteen interrogatories to the individuals who have

provided affidavits on Petitioner's behalf. (Doc. 35, Ex.B at 2-6.) After careful review, the Court concludes thatRespondent's requests to the affiants largely mirror hisrequests to Petitioner's counsel. Because this Court has

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already granted discovery through Petitioner's counsel onthose issues for which Respondent has shown good cause, theCourt declines to subject the affiants, who are not partiesto this case, to interrogatories or written depositions.Any information Respondent might obtain from the affiantswould be merely duplicative of the information provided byPetitioner's co unsel. 6 Accordingly, Respondent's proposedinterrogatory requests to the af fiants are DENIED.'III. PETITIONER'S MOTION FOR DISCOVERY

In his Motion, Petitioner seeks information concerningthe murder of Officer MacPhail, the assault on Larry Young,and the assault on Michael Cooper. (Doc. 34.) Inaddition, Petitioner requests Respondent identify allwitnesses and affidavits it intends to rely on at theevidentiary hearing. (Id., Ex. A at 5.) Petitionerpropounds four interrogatory and document requests designedto o btain this information.

A. Proposed Request OneIn this request for discovery, Petitioner requests

"all documents related to the investigation of Mr. Davisand Sylvester `Redd' Coles for the murder of Officer

6 To the extent that Respondent is reasserting his requestto depose the affiants (Doc. 35 at 6), that request isDENIED.Again, the Court notes that Respondent is not precluded

from conducting its own investigation. See supra note 4.

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MacPhail, the assault on Larry Young, and/or the assault onMichael Cooper kept by the Savannah Chatham County PoliceDepartment and the Chatham County Sherriff's Office."(Id.) In support of his request, Petitioner contends thatthe file may show that Mr. Coles "knew his arrest orinterrogation was imminent" and, as a result, "approachedSavannah Police . . . to accuse [Petitioner] of OfficerMacPhail's murder." (Id. at 3.) Furthermore, Petitioner"expects that the police file contains recordings and othermaterials that will support [Petitioner's] allegation thatcertain witnesses testified falsely due to police threats. "8

(Id. at 4.) Specifically, Petitioner identifies the taperecorded interrogation of Mr. Mark Wilds, which allegedlycontains evidence that police pressured Mr. Wilds intoidentifying Petitioner as the individual who shot OfficerMacPhail. (Id. at 4-5.) Petitioner reasons that thisevidence will corroborate the statements of severalaffiants, who state that they were pressured by police intonaming Petitioner as the shooter. (Id.) However,Petitioner cannot establish good cause for seeking thisdiscovery because these documents are only marginallyrelated to the issue before the Court"whether evidence8While Petitioner claims that he did not receive the entirepolice file prior to his trial, he is not alleging anyconstitutional erro r in that regard.

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that could not have been obtained at the time of trialclearly establishes Petitioner's innocence." (Doc. 1.)

Petitioner's first articulated reason for requestingthis discoveryMr. Cole being aware of the policeinvestigation and falsely identifying Petitioner as theshootercasts more light on Mr. Coles's motivation fornaming Petitioner as the shooter and how the policeconducted their investigation rather than Petitioner'sclaimed innocence. That is, even if Petitioner is correctand the requested documents indicate that Mr. Coles wasaware he was a suspect when he voluntarily identifiedPetitioner, they simply help the Court understand why Mr.Coles approached the police and identified Petitioner.Also, assuming Petitioner is correct, the documents mayassist the Court in discerning why the police decided tofocus on Petitioner as a suspect.et, there is adifference between proving that police failed toinvestigate every possible suspect and proving that thesuspect the police did investigate is actually innocent ofthe crime. As a result, Petitioner cannot establish goodcause for this discovery because it would not sufficientlyhelp the Court in determining "whether evidence that couldnot have been obtained at the time of trial clearlyestablishes Petitioner's innocence." (Doc. 1.)

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Petitioner's second articulated reasonthe presence ofa taped interrogation of Mr. Wildsalso fails to establishgood cause because it is only indirectly related to theissue before the Court. Indeed, Mr. Wilds neithertestified at Petitioner's trial nor provided an affidavitin support of Petitioner. Petitioner's claim that the taperecording will provide additional evidence of policepressuring witnesses to name Petitioner as the assailant ismany degrees removed from the issue before the Court anddoes not bear on Petitioner's claim of innocence. Instead,the tape recordings, at best, only provide cumulativeevidence for a concept that Petitioner claims to alreadyhave ample evidence of: that Police pressured witnesses toname Petitioner as the assailant.uch discovery is toofar removed from the question of when evidence ofPetitioner's innocence first became available.Accordingly, Petitioner has failed to show good cause forthis discovery.

In addition, Petitioner's past actions regarding thepolice file refute their present alleged need.Investigators working on Petitioner's behalf claim to havelistened to and took notes on the contents of the taperecording as early as 1995.Doc. 34 at 3 n.2.)Petitioner claims that he made several requests to the25Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 25 of 29


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Savannah Chatham County Police Department for the entirepolice file, which were all denied.Id. at 6; see Id.,Ex. B.)owever, the Georgia Open Records Act, O.C.G.A.H 50-18-70 to -77, provided Petitioner with an avenue toobtain these records.etitioner declined to seekdisclosure of the file under the Opens Record Act, despitehaving fifteen years to do so. The Court can find noreason why Petitioner failed, for fifteen years, to seekdisclose of the police report in state court, but nowattaches such import to the file that it would form thebasis of a habeas discovery request. These contradictoryactions leave the Court with the impression that the fileis not as important to Petitioner's claim as he nowpurports .9

In conclusion, Petitioner has failed to establish thegood cause necessary to warrant discovery of the police

The Court further notes that Petitioner's actions in thiscase also suggest that the Police File is not important toPetitioner's claim. Specifically, Petitioner's did notinitially request discovery in this case. In his Responseto Respondent's first Motion for Discovery, Petitionermentioned that he would seek discovery, apparentlyretributively, "if Respondent is allowed discovery of hisown" (Doc. 26 at 14) . Petitioner's act of firstthreatening discovery leads the Court to conclude thatPetitioner's current request is not made because of anactual need for the file, but rather as a sort ofretribution for Respondent's requested discovery. Were thefile as important as Petitioner now claims, he would haveindependently requested discovery, rather than threateningto do so in reaction to any discovery request by Defendant.

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file. Neither Petitioner's articulated reasons, nor hisactions, suggest that good cause exists for discovery ofthe Police File. Therefore, Petitioner's proposed requestis DENIED.

B. Proposed Requests Two and ThreeIn these requests, Petitioner seeks "all documents

related to all forensic tests on physical evidence relatedto [Petitioner's] case that was [sic] not introduced attrial and that you expect, intend, or may introduce intoevidence at the evidentiary hearing in this case." (Doc.34, Ex. A at 5.) Also, Petitioner asks for the identity of"any witness whom you expect, intend, or may call totestify or whose affidavits you may introduce at theevidentiary hearing."Id.)uch like Respondent'sprevious request, Petitioner wants to know what evidenceRespondent will rely on at the hearing.s previouslynoted, the Court has directed the Parties to exchange suchinformation prior to the evidentiary hearing. See supraPart I.A. Therefore, Petitioner cannot show good cause forthese proposed requests, which are DENIED.

C. Proposed Request FourHere, Petitioner seeks a description of and documents

relating to "any investigation done by you since[Petitioner's] trial, including any interviews with trial

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witnesses or persons who did not testify at trial, anyadditional evidence gathered or learned since trial, anytesting of physical evidence since trial and any evidenceobtained as a result of the investigation."Doc. 34, Ex.A at 5-6.)owever, Petitioner's request is no more thanone for general discovery and lacks the required factualallegations to establish good cause.ccordingly,Petitioner's proposed request is DENIED.

CONCLUSIONFor the foregoing reasons, Respondent's Motion for

Discovery (Doc. 35) is GRANTED IN PART and DENIED IN PART,and Petitioner's Motion for Discovery (Doc. 34) is DENIED.Petitioner's counsel is DIRECTED to answer the followinginterrogatories by 5:00 p.m. on May 27, 2010:

( 1) When, if ever, did any member of Petitioner'simmediate or extended family, or friend providethe names of the affiants contained in AttachmentA of Respondent's Motion for Discovery to anyoneacting on behalf of Petitioner as a member, pastor present, of his defense team;

( 2) When, if ever, did any of the affiants containedin Attachment A of Respondent's Motion forDiscovery come forward and contact anyone actingon behalf of Petitioner as a member, past or

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present, of his defense team and provide theinformation contained in their aff idavit;

( 3) When was the first time anyone acting on behalfof Petitioner as a member, past or present, ofhis defense team made contact with each of theaffiants contained in Attachment A ofRespondent's Motion f or Discovery; and

( 4) When was the first time any of Petitioner'simmediate or extended family, or friends madecontact with any of the affiants contained inAttachment A of Respondent's Motion forDiscovery?

The Court will hold an evidentiary hearing on this matterat 10:00 a.m. on June 30, 2010 in the Third Floor Courtroomof the Tomochichi Courthouse and Federal Building, locatedat 125 Bull Street, Savannah, Georgia. The Parties areORDERED to file with the Court a list of all witnesses,affidavits, and other evidence they will be presenting atthe hearing by 5:00 p.m. on June 11, 2010.

SO ORDERED this 7day of April, 2010.

WILLIAMcHIEFJ3GE. MOORE, JRUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF GEORGIA


Troy Davis Discovery Order Hearing Date

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