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Russell v. White

United States District Court, E.D. Kentucky, Lexington

April 8, 2015

JASON RUSSELL, Petitioner,


J. GREGORY WEHRMAN, Magistrate Judge.

After reluctantly granting the parties' motion for continuance, on March 11, 2015 the Court conducted what had been designated as an evidentiary hearing regarding petitioner's request to deem timely his 28 U.S.C. §2254 petition via the application of equitable tolling. Unfortunately, no testimony was presented at the hearing, primarily due to the absence of petitioner's court-appointed counsel, Daniel Canon.[1] Mark Hall, who had neither met nor even spoken to petitioner beforehand, appeared on petitioner's behalf. In fact, Hall had not been appointed by the Court to represent petitioner and had only entered an unexpected appearance as co-counsel for petitioner three business days before the hearing.

Faced with a situation in which petitioner's right to present fully and adequately his equitable tolling claim was stymied through no fault of his own, on March 13, 2015 the Court granted petitioner's request to have additional time to acquire and present evidence regarding petitioner's mental state. Specifically, the Court ordered that "[o]n or before MAY 18, 2015 Mr. Canon shall present any additional evidence or testimony at which time the file will be submitted to the undersigned[.]" Doc. 38. On March 25, 2015, petitioner filed the pending motion to be permitted to also propound six interrogatories and six production of documents to respondent. Doc. 41.

The day after the motion for discovery was filed, the Court conducted a conference call with counsel focused on the question of imposing sanctions on Canon for his failure to appear on March 11. During the call, petitioner's motion for discovery also was briefly discussed. Specifically, counsel for respondent asked the Court for "some clarification on your intentions about Mr. Russell's right to present proof? I'm unclear as to whether your order, Document Number 38, granted a right to discovery and to what extent." Doc. 43, p. 6. After discussion by counsel, the Court stated "And, yes, I am allowing him to conduct discovery as if we were starting over. As I said, it was very reluctant, but my main concern is Mr. Russell, that he gets due process here, what he's entitled to, so yes." Id. at p. 6-7.

On April 2, 2015, respondent filed an extraordinarily vehement objection to petitioner's motion for discovery. Doc. 44. Petitioner filed a reply on April 6, 2015 (doc. 46), making the matter ripe for adjudication. After considering the record and applicable law, the Court concludes the motion will be granted in part and denied in part.

Before delving into the specifics of the discovery requests, the Court will first address respondent's oft repeated argument that petitioner is not entitled to discovery (or any other relief) based upon the actions/inactions of counsel because petitioner wasn't entitled to counsel in the first place. As the Court explained previously, petitioner's request for application of equitable tolling necessitated an evidentiary hearing due to this case's factual similarity to Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). Rule 8 of the Rules Governing Section 2254 Cases provides that "[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A." Because petitioner is indigent, therefore, the Court was obligated to appoint counsel for him.[2]

The Court shares respondent's frustration over the fact that the March 11 hearing was unproductive. However, the fault for the fizzled hearing rests with Canon, not petitioner. The Court's responsibility is to allow petitioner to present fully his equitable tolling claims and to allow respondent to respond. Respondent's harsh assertion that he has been handicapped by the Court's decision to let petitioner present additional evidence is unfounded. Petitioner is merely being given a chance to present fully his equitable tolling claims; respondent similarly will be given an opportunity to present evidence in opposition. After all, to accept respondent's view would be to punish petitioner for counsel's acts, which the Court declines to do.

Rule 6 of the Rules Governing Section 2254 Cases governs discovery. That rule provides in relevant part: "[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. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents." As interpreted by the Sixth Circuit, "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 he is... entitled to relief." Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quotation marks and citation omitted). The Sixth Circuit has also held that "[h]abeas petitioners have no right to automatic discovery. A district court has discretion to grant discovery in a habeas case upon a fact specific showing of good cause under Rule 6.... The burden of demonstrating the materiality of information requested is on the moving party." Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). "Rule 6 does not sanction fishing expeditions based on a petitioner's conclusory allegations." Williams, 380 F.3d at 974 (quotation marks and citation omitted).

The Court has previously held that an evidentiary hearing is warranted on petitioner's claim that his §2254 petition should be deemed timely by application of the doctrine of equitable estoppel. The keystone of petitioner's equitable estoppel claim is his contention that he was not competent during the relevant filing period(s) due to not having been medicated properly. Petitioner has specifically alleged that the state court adjudged him to be competent only when properly medicated. Therefore, the issue is whether the tendered discovery requests are tailored to help resolve the equitable tolling question.[3]

One final prefatory matter must be discussed before the Court addresses the specifics of the tendered discovery requests. At the March 11 hearing, petitioner submitted a lengthy set of medical records to the Court (without objection). In answering any discovery requests, respondent need not provide any duplicative documents already contained elsewhere in the record.

Turning to the discovery requests at issue, the first interrogatory asks respondent to identify how many days petitioner has been placed in segregation. Petitioner has not demonstrated with specificity how being placed in segregation affected his competency. In other words, that interrogatory does not focus on equitable tolling and, accordingly, respondent need not answer it.

Interrogatory two asks respondent to "[d]isclose any experts or treating physicians from whom you expect to provide reports or testimony in this case, and what you anticipate the substance of their testimony to be." Doc. 41-1, p. 3. The Court was under the impression that respondent was not planning on relying on any expert testimony. However, if respondent does intend to present expert testimony regarding petitioner's mental health it should provide petitioner with the name of the expert and the expected general contours of that expert's testimony. See generally Fed.R.Civ.P. 26.

Interrogatory three asks respondent to "[d]isclose any and all health providers, including therapists or other mental health professionals, who have been consulted with in any way regarding Mr. Russell" and to provide those providers' contact information. Doc. 41-1, p. 3. The request is overly broad in that it would encompass respondent providing information related to petitioner's physical health when the only issue before the Court is petitioner's mental health. Therefore, respondent shall provide in its answer only information related to professionals who have been consulted regarding petitioner's mental health.

Interrogatory four asks respondent to "[d]isclose any and all medications administered to Mr. Russell during his incarceration and the dates upon which they were administered." Id. Again, answering fully this interrogatory would require respondent to provide information regarding medications given to petitioner wholly unrelated to his mental health (e.g., antibiotics for infections, pain relievers for headaches, etc.). Respondent, therefore, ...

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