DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR DISCOVERY

MICHAEL R. MERZ, Magistrate Judge.

This capital habeas corpus case is before the Court on Petitioner's Motion for Discovery (Doc. No. 51) which Respondent opposes (Doc. No. 52) and on which Petitioner has filed a Reply in support (Doc. No. 53). After the Motion became ripe, the Supreme Court decided Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), and the parties filed additional briefing on its impact on the Motion (Doc. Nos. 61, 62).

Petitioner's Motion

Skatzes seeks discovery on his First, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Grounds for Relief. In addition, he seeks "discovery on his assertions of gateway innocence to excuse any procedural bars with respect to all three aggravated murders of which Skatzes was convicted. See Schlup v. Delo, 513 U.S. 298 (1995)." (Motion, Doc. No. 51, PageID 1005-1006.)

Vallandingham Murder

In his First Ground for Relief,1 Petitioner pleads:

With respect to the gateway innocence argument and the ineffective assistance of trial counsel claim made in the First Ground for Relief, Petitioner seeks:

Sommers Murder

With respect to his conviction for the murder of inmate David Sommers, Petitioner has pled:

(Petition, Doc. No. 25, PageID 267, 272, 277.)

To support these Grounds, he seeks:

Elder Murder

With respect to his conviction for the murder of Earl Elder, Petitioner has pled the following grounds for relief:

(Petition, Doc. No. 25, PageID 280, 286, 291.)

As to this conviction, he seeks the following discovery:

Mitigation: ineffective assistance of appellate counsel

In his Eleventh Ground for Relief, Petitioner alleges he received ineffective assistance of trial counsel when they failed to develop and present relevant mitigating evidence. He seeks the following discovery:

The State's Response

The Warden opposes all of Petitioner's discovery requests. (Memorandum in Opposition, Doc. No. 52, PageID 1066.) In general, Respondent argues that habeas petitioners must satisfy 28 U.S.C. § 2254(d)(1) and (2) before doing factual development in federal court, and they must also satisfy 28 U.S.C. § 2254(e)(2) before presenting any evidence in federal court. Id. at PageID 1069-1071.

To the requests for discovery to show actual innocence, the Warden responds that actual innocence is not a cognizable claim in habeas corpus. Id. at PageID 1073, 1075, 1076, 1079, 1080, 1082. The Warden repeatedly asserts that Skatzes' allegations in support of discovery are not specific enough. Id. at PageID 1068, 1072, 1073, 1074, 1076. Respondent asserts that Grounds for Relief One, Three, Four, Seven, Eight, and Eleven are procedurally defaulted in part and therefore no discovery should be granted on these Grounds. Id. at PageID 1072. As to the Highway Patrol tapes, interviews, summaries, and computer-generated index, the Warden asserts the sought discovery is too broad and that some of the information has been previously classified as work product by this Court. Id. at PageID 1074.

As to the ODRC files for inmate witnesses, the Warden asserts lack of due diligence on Skatzes' part because he did not request these documents in post-conviction. Id. at 1076. He asserts that the plea or non-prosecution agreements are obviously not relevant to prove his innocence and were never requested in post-conviction. Id. at PageID 1077.

As to depositions of trial counsel, the Warden asserts their affidavits in post-conviction were of questionable credibility. Id. at PageID 1078. As to inmate depositions, the Warden asserts these were never requested in post-conviction and are also of questionable credibility. Id. at PageID 1079. As to the requested depositions of the trial prosecutors to learn how they decided who to offer deals to, the Warden asserts that whatever information was learned would not make Skatzes less culpable. Id. at PageID 1081. As to depositions of mitigation witnesses, these were never requested in state post-conviction. Id. As to the "prosecution's official discovery file," the Warden asserts there has been no showing that this would assist in proving Petitioner's actual innocence and was never requested in the state courts (after, of course, it was furnished to trial counsel). Id. at PageID 1082.

Petitioner's Reply

In his Brief in Reply, Petitioner makes four arguments.

First of all, Skatzes says discovery for proving a gateway innocence claim is not subject to the restrictions of 28 U.S.C. § 2254(e)(2). He notes that, in addition to the good cause requirement of Habeas Rule 6, this Court has held ¶ 2254(e)(2) limits discovery in habeas because habeas discovery is "fact gathering with a purpose — presentation of facts in evidence in court" and therefore facts which could not be admitted in evidence could also not be gathered in discovery. (Reply, Doc. No. 53, PageID 1128-1129.) He then asks this Court to adopt "a necessary corollary to its prior holding, i.e., that discovery sought for purposes of excusing a procedural default is not subject to the limitations of § 2254(e)(2)." Id. at PageID 1129.

Second, Skatzes argues he can take discovery "on the federal question of whether a state court's unreasonable § 2254(d)(1) merits decision has created an actual prejudice to him under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)." Id. at PageID 1130.

Thirdly, Skatzes claims that, contrary to the Warden's position, he did diligently seek the discovery sought here. Id. at PageID 1132-1133.

Lastly, Petitioner asserts that actual innocence is a cognizable claim in federal habeas. Id.

Cullen v. Pinholster Impact

After the initial briefing by both parties, the Supreme Court decided Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011). At the Court's request, the parties briefed what they believed its impact should be.

The Warden asserts that granting discovery would be inconsistent with Pinholster "where the petitioners' [sic] claims have been adjudicated on the merits by the state courts and the petitioner cannot show, based on the record available to the state courts, that the adjudications of the state courts are objectively unreasonable." (Warden's Pinholster Brief, Doc. No. 61, PageID 1155).

Petitioner responds that "Pinholster does not change the fundamental principles associated with habeas litigation, and more importantly for the current discussion, the requisite showing that a habeas petitioner must make in order to warrant the granting of discovery." (Petitioner's Pinholster Brief, Doc. No. 62, PageID 1164.) Alternatively, Pinholster should be read to restrict fact development in federal habeas only where the petitioner had been allowed "unfettered and substantial state processes" for fact development. Id. at PageID 1161.

Analysis

Standard for Discovery in Habeas Corpus

A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific 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 (65th 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, citing United States v. Armstrong, 517 U.S. 456 (1996). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001), 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 (6th Cir. 2003), quoting 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 v. Bagley, 380 F.3d 932, 974, (6th Cir. 2004), citing Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact." Id., citing Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).

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, 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.

Secondly, 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 claim language in the habeas petition, but to specific evidence obtained outside the discovery process and presented in support of a motion for discovery, which corroborates the claimed constitutional violation.

Other parts of habeas corpus procedural jurisprudence, although not relevant to the particular decisions in Harris and Bracy, also should inform a district court's exercise of its discretion in granting discovery under Habeas Rule 6. The purpose of discovery in any case is ultimately to gather evidence which will be put before the court in deciding the case on the merits. In order to obtain an evidentiary hearing in federal court on a claim on which he has not fully developed the factual basis in state court, a habeas corpus petitioner must show cause and prejudice under Wainwright v. Sykes, 433 U.S. 72 (1977). Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Logically, there is no good reason to gather evidence which one will not be permitted to present because one cannot satisfy the Keeney standard. Therefore, if there are items of evidence sought in discovery which could have been obtained and presented during the state court process but were not, a petitioner should make the required Keeney showing before being authorized to conduct discovery to obtain the evidence.

Application

Habeas Rule 6 was adopted in 1976 and has only been amended once, and then non-substantively, with the 2004 restyling project. The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214) (the "AEDPA") did not amend the Rule or speak directly to discovery. Nor does Pinholster. The question the Court must answer is whether these sources of the law have any implications for applying Rule 6.2

Discovery Sought to Show Actual Innocence

Actual Innocence — Stand Alone Claim

A very substantial portion of the sought discovery in this case relates to Skatzes' claims of actual innocence as a stand-alone habeas corpus claim or his assertion of actual innocence sufficient to satisfy the so-called "gateway" to excuse any procedural defaults which might bar merits consideration of other habeas claims.3

To justify this discovery, Skatzes asserts first that actual innocence is a cognizable habeas corpus claim standing alone, but then acknowledges that the "cognizability of freestanding claims of actual innocence remains an open question." (Petitioner's Brief in Reply, Doc. No. 53, PageID 1134.)

In the Magistrate Judge's opinion, Petitioner's counsel correctly analyzes Herrera v. Collins, 506 U.S. 390 (1993): a majority of the Justices on the Herrera Court said it would be unconstitutional to execute a factually and legally innocent person. But that is plainly dictum since the majority was persuaded that Herrera was not such a person. Herrera is nearly twenty years old, the Supreme Court has never held actual innocence is a cognizable claim, and all four of the Justices who most strongly supported that position are no longer on the Court.

Petitioner also cites to District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), where the Supreme Court held there was no constitutional right to post-trial DNA testing. On the actual innocence issue, the Court commented:

Id. at 2321.

Petitioner argues the present Court has also "indicated that a claim of actual innocence is cognizable in habeas." (Petitioner's Brief in Reply, Doc. No. 53, PageID 1134-1135, relying on In re Davis, 557 U.S. ___, 130 S.Ct. 1 (2009).) The Davis case, before the Supreme Court in the same year as Osborne, involved a habeas petition filed as an original action in the Supreme Court and transferred under 28 U.S.C. § 2241(b) to the District Court with personal jurisdiction of the custodian, the District Court for the Southern District of Georgia. The Supreme Court instructed the District Judge to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence." Id. Obviously the Court majority did not think transfer of the case with instructions was a vain act, but again did not hold actual innocence was a cognizable claim. However, when Mr. Davis' case again reached the Supreme Court, all nine Justices4 concurred in dismissing the appeal and denying the petition without opinion. In re Davis, 131 S.Ct. 1808 (2011); Davis v. Humphrey, 131 S.Ct. 1788 (2011). Petitioner suggests that the Supreme Court "did nothing to disturb the findings of the district court regarding Davis's Eighth Amendment claim of innocence, and in denying the appeal, essentially affirmed those findings." (Reply Brief, Doc. No. 53, PageID 1136.) However, the Supreme Court's refusal to exercise jurisdiction is not precedential. Teague v. Lane, 489 U.S. 288, 296 (1989) ("the `denial of a writ of certiorari imports no expression of opinion upon the merits of the case'," quoting United States v. Carver, 260 U.S. 482, 490 (1923).

Whatever inferences may be drawn from recent Supreme Court comment on actual innocence, it is clear that the Court has never expressly said that actual innocence is a cognizable habeas claim, standing alone. Bracy, supra, speaks of discovery on "elements" of claims made. Again, by inference, Habeas Rule 6 does not authorize discovery on noncognizable claims. If this were a case governed by the Rules of Civil Procedure, recent Supreme Court precedent would counsel dismissing noncognizable claims before allowing discovery on them. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

One aspect of recognizing a stand-alone actual innocence claim which the Supreme Court has not discussed would be its impact on discovery. As District Judge Moore noted in Davis, the reliability of witness testimony degrades over time, but scientific ability improves. In re Davis, 2010 WL 3385081, n. 18 (S.D. Ga. Aug. 24, 2010). The availability of constantly improving DNA testing, for example, has accounted for most of the post-conviction exonerations won by Innocence Projects. As the costs of DNA testing continue to decline and their sensitivity increases, the cost-benefit analysis for recognizing actual innocence claims based on DNA testing changes radically, particularly when a test can include or exclude a suspect/convict with virtual certainty. That calculus is quite different in a case such as this when the actual innocence claim depends on reassembling and reweighing "moral" evidence, dependent as it is on degraded memory but possibly also on changed motivations about testimony. In other words, a great deal of costly gathering of evidence may result in no more certainty than at the time of trial.

Because the Supreme Court has not recognized actual innocence as a stand-alone claim, the Court denies discovery insofar as it is sought to support Petitioner's stand-alone actual innocence claims.

"Gateway" Actual Innocence

In contrast to the stand alone actual innocence claim, the Supreme Court has recognized that a showing of actual innocence can excuse a procedural default which would otherwise prevent a habeas court from reaching the merits of an independent constitutional claim. House v. Bell, 547 U.S. 518 (2006); Schlup v. Delo, 513 U.S. 298 (1995); Sawyer v. Whitley, 505 U.S. 333 (1992).

However, Petitioner cites no authority expressly addressing discovery on "gateway" innocence. Bracy does not speak to that question and neither do any of the leading gateway cases cited above. Furthermore, the present motions papers do not facilitate court review of the actual innocence material already filed.

Therefore, discovery directed to the actual innocence gateway question is denied without prejudice to renewal of the request in the following form not later than April 1, 2012:

Discovery Sought for Purposes Other Than Proving Actual Innocence

Requests 1.1 through 1.6 seek to discover information in support of the First Ground for Relief, ineffective assistance of trial counsel. Request 1.2 for statements of Anthony Lavelle and 1.3 for a statement of James May are granted. Request 1.7 to depose trial counsel is granted; these depositions may inquire into information sought on other grounds for relief as well. Request 1.1 for all Highway Patrol tapes, etc., is overbroad and denied unless Petitioner establishes in his renewed motion that a District Judge has granted a parallel request in one of the other Lucasville riot capital cases. Petitioner has not established that the information sought in Requests 1.4 and 1.5 are material to proving the First Ground for Relief, and they are denied. The interrogatories sought in Request 1.6 have already been denied. A decision on the depositions sought in Request 1.6 is postponed until the Court has determined:

(1) whether the First Ground for Relief is to be reviewed de novo or deferentially under 28 U.S.C. § 2254(d)(1) and (2) and

(2) whether Respondent's procedural default defense to the First Ground for Relief is well taken.

Requests 2.1, 2.2, and 2.3 are denied on the same basis as Requests 1.1, 1.4, and 1.5. Request 2.4 is granted. The information sought in Request 2.5 should be sought first from the trial attorneys at their depositions. The interrogatories sought in Request 2.6 have already been denied. A decision on the depositions sought in Request 2.6 is postponed until the Court has determined:

(1) whether the Third, Fourth, and Sixth Grounds for Relief are to be reviewed de novo or deferentially under 28 U.S.C. § 2254(d)(1) and (2) and

(2) whether Respondent's procedural default defense to the Third and Fourth Grounds for Relief is well taken.

Requests 3.1, 3.2, and 3.3 are denied on the same basis as Requests 1.1, 1.4, and 1.5. A decision on the depositions sought in Request 3.4 is postponed until the Court has determined:

(1) whether the Seventh, Eighth, and Tenth Grounds for Relief are to be reviewed de novo or deferentially under 28 U.S.C. § 2254(d)(1) and (2) and

(2) whether Respondent's procedural default defense to the Seventh and Eighth Grounds for Relief is well taken.

Request 4.1 is granted as to the depositions of trial counsel. Request 4.2 is denied because the Court believes all of the witnesses sought to be deposed provided affidavits for Petitioner in the post-conviction process. Nothing prevents Petitioner's counsel from interviewing those witnesses. A decision on whether to depose them is postponed until the Court has determined (1) whether the Eleventh Ground for Relief is to be reviewed de novo or deferentially under 28 U.S.C. § 2254(d)(1) and (2) and (2) whether Respondent's procedural default defense to the Eleventh Ground for Relief is well taken.

Given these dispositions of the various requests for discovery, it is unnecessary to the Court to decide on Petitioner's argument regarding prejudice under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Not later than April 1, 2012, Petitioner shall file a statement of his position as to whether each of his Grounds for Relief was decided on the merits in the state courts with citations to the record to show where he has taken that position. Respondent shall file a responsive statement not later than April 15, 2012.

Prior to the decision in Pinholster, it had been this Magistrate Judge's strong preference to maintain in capital habeas corpus litigation a close parallel to the processing of ordinary civil cases, to wit, pleading, followed by discovery, followed by an evidentiary hearing in most cases, followed by a recommendation on the merits. While the implications of Pinholster are not yet clear, it now appears more conducive to judicial economy to decide § 2254(d)(1) and (2) and procedural default defense issues first, at least before authorizing discovery as extensive as that sought in this case. The parties are invited to offer their suggestions for scheduling the balance of this litigation in light of that observation.