Opinion
Case No. 1:06-CV-603.
June 30, 2008
ORDER GRANTING RENEWED MOTION TO EXPAND SCOPE OF DISCOVERY, REVERSING SECOND DECISION AND ORDER, AND SUSTAINING PETITIONER'S OBJECTIONS AND APPEAL
This matter comes before the Court on (1) Petitioner's Renewed Motion to Expand the Scope of Discovery (doc. 34); (2) the Second Decision and Order Denying Renewed Motion (doc. 38) issued on May 5, 2008 by Chief Magistrate Judge Michael R. Merz; and (3) Petitioner's Objections and Appeal from the May 5, 2008 Decision and Order (doc. 39). For the reasons that follow, the Court GRANTS Petitioner's Renewed Motion insofar as she is granted leave to depose Lawrence Handorf as set forth herein. The Court REVERSES the Second Decision and Order and SUSTAINS Petitioner's Objections and Appeal therefrom.
I. BACKGROUND
Petitioner Joy Major Hoop was convicted in 1998 in the Brown County, Ohio Court of Common Pleas of conspiracy and complicity to commit the aggravated murder of her husband, Donald Ray Hoop. A witness named Kathy Kerr testified at Petitioner's trial that she saw Petitioner provide her co-defendant, Carl Lindsey, with a gun just prior to the time that Lindsey shot and killed Donald Ray Hoop. Petitioner was sentenced to a prison term of twenty-five years to life.
Prior to her state trial, Petitioner had moved the trial court to compel Lawrence Handorf, the investigator retained by Lindsey's attorney, to disclose the identity of a third party whom Petitioner's attorney, R. Scott Croswell, believed had admitted to Handorf that he or she had supplied the murder weapon to Lindsey. The trial court denied the motion. After Petitioner was convicted, she moved for a new trial based in part upon the trial court's denial of her motion to compel Handorf's testimony. The trial court denied the motion for a new trial.
Petitioner appealed her conviction. The appellate court vacated the trial court decision concerning Petitioner's motion for a new trial and remanded for an evidentiary hearing on the issue of whether the third-party exculpatory witness existed and whether Handorf had privilege to withhold such information. Ohio v. Hoop, 134 Ohio App. 3d 627, 643, 731 N.E.2d 1177 (1999).
On remand, the trial court conducted an evidentiary hearing on April 11, 2000. Croswell and Handorf testified. Croswell asserted several bases for his belief that Handorf could identify a third-party witness who supplied Lindsey with the murder weapon: (1) Petitioner had told Croswell that she had not supplied Lindsey with a weapon; (2) Petitioner had passed a polygraph test; (3) Petitioner and her sister stated that persons named Chris Kelly and Calvin Dehart understood that Lindsey had obtained the gun from someone other than Petitioner, possibly from an individual named Al Shafer, and understood that Handorf had talked to this potential exculpatory witness; and (4) other evidence indicated that Lindsey had been looking for a weapon in the days prior to the murder. (Tr. at 24, 39, 46-50, 66-69, 113-14.) Kelly would not admit or deny having such knowledge when interviewed by Croswell or by a member of his office. (Id. at 59-60, 86-87.) The most significant reason for Croswell's belief, at least in terms of the purpose for the evidentiary hearing, was that Handorf had invoked attorney-client privilege and refused to admit or deny that he had information concerning the potential exculpatory witness. Croswell testified at the evidentiary hearing that he believed Handorf would have denied having information about an exculpatory witness as a professional courtesy if Handorf in fact had no such information. (Id. at 54, 62-67, 88, 114-15.)
A transcript of the April 11, 2000 hearing in Ohio v. Hoop, No. 97-2065 (C.P. Brown Cty., Ohio), is attached as an exhibit to the Return of Writ (doc. 8) at CM/ECF documents 8-73, 8-74, and 8-75.
Handorf testified at the hearing that he had not confirmed or indicated to Croswell that a witness existed who could testify about how Lindsey obtained the gun. Handorf testified that he believed it was his duty to keep secret the facts of his investigation on behalf of Lindsey's attorney. (Id. at 136-37.) Nonetheless, Handorf admitted that he had told Croswell that "the name Al Shafer never came up" during his investigation. (Id. at 131.) He also stated that he had told Croswell that he was surprised by Petitioner's conviction. (Id. at 132.)
The trial court held at the conclusion of the remand evidentiary hearing that Petitioner had not met her burden of proof, that questioning of Handorf in camera was not necessary, and that the motion for new trial again was denied. (Id. at 164.)
An Ohio court of appeals affirmed the denial of a new trial on this basis. The appeals court reviewed the hearing testimony and concluded as follows:
The trial court explicitly found that Handorf made no statement to Croswell to confirm or otherwise indicate the existence of a sought-after witness with exculpatory information. Accordingly, the trial court did not reach the issue of whether any information Handorf may have had was privileged or work product. As a result, we find that the trial court's decision concerning the exculpatory evidence and denying the motion for a new trial was not unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion in deciding that there was no factual basis to support a good faith belief that an exculpatory witness existed and finding that an in camera review was not necessary.Ohio v. Hoop, No. CA2000-11-034, 2001 WL 877296, at *3 (Ohio App. Aug. 6, 2001).
On September 7, 2006, Petitioner filed a Petition for Writ of Habeas Corpus (doc. 2) in this Court pursuant to 28 U.S.C. § 2254. Petitioner's Fifth Ground for Relief, a Brady claim, is most relevant to the issue before the Court: "[Petitioner's] convictions are constitutionally infirm because the trial court failed to order the disclosure of exculpatory information [regarding the identity of the person who provided the murder weapon to co-defendant Carl Lindsey.]" (Doc. 2 at 12-15.)
On August 21, 2007, this Court issued an Order (doc. 21) permitting Petitioner to take limited discovery. She obtained new evidence pursuant to the discovery which she contends suggests that another person was present at or involved in the murder in addition to Lindsey, a person who could have provided the weapon to Lindsey. (Doc. 34.) This evidence includes (1) a police report with a statement that a police officer was told by an individual identified as Jacklyn Smith that Lindsey obtained the gun from Al Shaffer and (2) a statement from a witness who heard one person tell another "let's go get out of here" in front of the bar where the murder occurred and around the time the murder occurred. (Id. Exs. C D.)
On March 20, 2008, Petitioner moved the Court to expand the scope of discovery again to allow her to take Handorf's deposition. She asserts a good faith belief that Handorf could identify an exculpatory witness who had admitted to providing the murder weapon to Lindsey. Chief Magistrate Judge Merz denied Petitioner's motion to depose Handorf. Petitioner now objects to and appeals Chief Magistrate Judge Merz's order.
II. STANDARD OF REVIEW
Upon objections to a magistrate judge's order on nondispositive matters, the district judge "shall modify or set aside any part of the order that is clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). The "clearly erroneous" standard applies to a magistrate judge's findings of fact and the "contrary to law" standard to his conclusions of law. See Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992) aff'd 19 F.3d 1432 (6th Cir. Mar. 14, 1994) (Table). "A finding is clearly erroneous where it is against the clear weight of the evidence or where the court is of the definite and firm conviction that a mistake has been made."Galbraith v. Northern Telecom, Inc., 944 F.2d 275, 281 (6th Cir. 1991) overruled on other grounds Kline v. Tennessee Valley Auth., 128 F.3d 337 (6th Cir. 1997); see also Hood v. Midwest Sav. Bank, No. C2-97-218, 2001 WL 327723, at *2 (S.D. Ohio Mar. 22, 2001). A decision is contrary to law "if the magistrate has misinterpreted or misapplied applicable law." Hood, 2001 WL 327723, at *2 (internal quotation and citation omitted).
III. STANDARD FOR DISCOVERY IN § 2254 CASES
A habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). Discovery is available only at the discretion of the court and for good cause shown. Rule 6(a), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. Habeas Rule 6 embodies the principle that a court must provide discovery in a habeas proceeding only "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 [she] is . . . entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); see also Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). "The burden of demonstrating the materiality of the information requested is on the moving party." Williams, 380 F.3d at 974 (quoting Stanford, 266 F.3d at 460). A petitioner must set forth "specific allegations of fact" as opposed to "[c]onclusory allegations." Id. (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).
Rule 6(a) states as follows:
Leave of Court Required. 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. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.
Rules Governing Section 2254 Cases, Rule 6, 28 U.S.C. foll. § 2254.
IV. ANALYSIS AND CONCLUSION
This Court finds that Petitioner has established good cause to obtain the discovery requested. As pointed out by Chief Magistrate Judge Merz, "Had the Petitioner had evidence that the murder weapon was furnished to Carl Lindsey by someone other than herself, that would have been material at trial, because of the trial testimony by Kathy Kerr that she saw Petitioner give the murder weapon to Carl Lindsey moments before the killing." (Doc. 38 at 3.) Petitioner offers specific facts and allegations of fact — facts and allegations developed in the state court proceedings and discovered in these proceedings — which, if true, might constitute circumstantial evidence both that Lindsey obtained the murder weapon from someone other than Petitioner and that Handorf could identify that person. Petitioner has established good cause to believe that a subpoena directed towards Handorf at the time of the trial would have produced exculpatory evidence.
Accordingly, the Court GRANTS the Renewed Motion to Expand the Scope of Discovery (doc. 34), REVERSES the Second Decision and Order (doc. 38), and SUSTAINS Petitioner's Objections and Appeal from the Decision and Order (doc. 39). Petitioner Hoop is granted leave to depose Lawrence Handorf. The parties shall address any evidentiary concerns related to the Handorf's deposition, including matters of privilege, to Chief Magistrate Judge Merz.
IT IS SO ORDERED.