Troy Davis Discovery Order Hearing Date

Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 1 of 29
IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA 2OD (' 27 1 10: 50
SAVANNAH DIVISION
IN RE TROY ANTHONY DAVIS ) CASE NO. CV409-130
ORDER
Before the Court are the Parties' Motions for
Discovery. (Docs. 34, 35.) For the following reasons,
Respondent's Motion (Doc. 35) is GRANTED IN PART and DENIED
IN PART, and Petitioner's Motion (Doc. 34) is DENIED.
Petitioner's counsel is ORDERED to provide answers to the
granted interrogatories by 5:00 p.m. on May 27, 2010. The
Court will hold an evidentiary hearing on this matter at
10:00 a.m. on June 30, 2010 in the Third Floor Courtroom of
the Tomochichi Courthouse and Federal Building, located at
125 Bull Street, Savannah, Georgia. The Parties are
ORDERED to file with the Court a list of all witnesses,
affidavits, and other evidence they will be presenting at
the hearing by 5:00 p.m. on June 11, 2010.
BACKGROUND
On August 17, 2009, the Supreme Court of the United
States transferred this Petition for a Writ of Habeas
Corpus to this Court with instructions 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." (Doc. 1.) On
October 9, 2009, Respondent filed a Motion for Discovery.
(Doc. 22.) The Motion sought materials presented by
Petitioner at his state clemency hearing; permission to
depose the attorneys, paralegals, notaries, and other
individuals involved in obtaining affidavits on
Petitioner's behalf; and permission to depose the affiants.
(Id.) On November 25, 2009, this Court entered an Order
denying in part Respondent's Motion for Discovery. (Doc.
30.) In that Order, the Court denied Respondent's request
for the materials presented at the clemency hearing and
reserved ruling on the deposition requests. (Id.) In its
January 5, 2010 Order addressing the deposition requests,
the Court directed the Parties to submit motions that
included a showing of good cause for seeking discovery,
along with proposed interrogatories. (Doc. 32.) Those
Motions are now before this Court.
In Respondent's Motion, the State seeks to propound
multiple interrogatories to both Petitioner's counsel and
the non-party affiants. (Doc. 35.) In support of its
request, Respondent cites "the unique circumstances of this
case" (Id. at 2) and the need to develop "facts relevant to
the issues delineated by the Supreme Court" (Id. at 3).
Specifically, Respondent argues that it "should be
2
permitted to explore the circumstances surrounding the
obtaining, signing and filing of the[] affidavits." (Id.
at 5-6.) Respondent proposes to explore these
circumstances through specific and limited interrogatories
to individuals involved in obtaining the affidavits, and
either deposing or propounding interrogatories to those
individuals who provided affidavits on Petitioner's behalf.
(Id.) Petitioner has responded in opposition to
Respondent's Motion, arguing that Respondent has failed to
show good cause.
In his Motion, Petitioner argues that good cause
exists for allowing him to discover the contents of the
police investigatory files concerning the murder of Officer
MacPhail, the assault on Larry Young, and the assault on
Michael Cooper. (Doc. 34 at 12.) In addition, Petitioner
requests that if Respondent's Motion is granted, Petitioner
be allowed to conduct reciprocal discovery. (Id. at 2.)
To that end, Petitioner has included proposed
interrogatories and document requests that would constitute
this reciprocal discovery. (Id., Ex. A.) Respondent has
responded in opposition to Petitioner's Motion.
ANALYSIS
Habeas petitioners are not ordinarily entitled to
conduct discovery to gather support for their claim. See
3
Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeas
petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary
course."). District courts have discretion to authorize
discovery upon a showing of good cause.' Rule 6 of the
Rules Governing § 2254 Cases in the United States District
Courts; see Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir.
2006) . In addition, district courts have considerable
discretion to restrict the scope of any discovery in habeas
cases. See Rule 6 of the Rules Governing § 2254 Cases in
the United States District Courts (granting district courts
discretion to limit the extent of discovery in habeas
cases); Bracy, 520 U.S. at 909. Further, any party seeking
discovery "must provide reasons for the request." Rule
6(b) of the Rules Governing § 2254 Cases in the United
States District Courts.
A party can establish good cause for discovery by
articulating specific and non-conclusory allegations
showing that full factual development will assist the court
in determining an issue before it. Cf. Harris v. Nelson,
394 U.S. 286, 300 (1969) (allowing discovery where a
1
Because this is an original petition based on an
allegation of actual innocence, the diligence requirement
contained in 28 U.S.C. § 2254(e) (2) is inapplicable.
House v. Bell, 547 U.S. 518, 539 (2006); Sibley v.
Culliver, 377 F.3d 1196, 1207 (11th Cir. 2004)
4
petitioner can show a possible entitlement to relief should
the facts be fully developed), Bracey, 520 U.S. at 908-09
(same), Arthur, 569 F. 3d at 1311 (same) . Unsupported
factual allegations, amounting to little more than
speculation, are insufficient to establish good cause. Id.
That is, a party seeking discovery must go further than
merely 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 its
assertions, allowing the Court to ensure habeas discovery
is not being used as a fishing expedition.' See, e.g.,
Phillips v. Stickman, 298 Fed. App'x 135, 137 (3d Cir.
2008) (unpublished) ("Appellant's allegations regarding
O'Toole are entirely without support in the record. Hence,
he cannot demonstrate the requisite "good cause" under Rule
6. 11 ) ; Beach v. McCormick, 191 F.3d 459, at *4 (9th Cir.
2
The Court notes that discovery in habeas is not as broad
as pre-trial discovery. Harris, 394 U.S. at 295 (noting
that "[a]t the very least, it is clear that there was no
intention to extend to habeas corpus, as a matter of right,
the broad discovery provisions" applicable to ordinary
civil litigation (citing Hickman v. Taylor, 329 U.S. 495,
500 (1947))) . Such narrowing of discovery in habeas is
especially cogent in a case such as this one because
"Federal courts are not forums in which to relitigate state
trials." Autry V. Estelle, 464 U.S. 1, 3 (1983) . Were
this Court to grant far-reaching, as opposed to highly
focused, discovery on the subject of Petitioner's
innocence, the Court would be eviscerating this
longstanding principle.
5
1999) (Table) ("Rule 6 of the Federal Rules Governing
Section 2254 Cases, however, does not allow for fishing
expeditions and unsupported speculative theories do not
warrant discovery."); Rector v. Johnson, 120 F.3d 551, 563
(5th Cir. 1997) ("Because Rector has failed to make at
least a prima facie showing of what specifically he intends
to find and prove, we conclude that Rector's discovery
request is nothing more than a desire to engage in a
fishing expedition."); Perillo v. Johnson, 79 F.3d 441, 445
(5th Cir. 1996) (allowing discovery where specific
allegations creating good cause were backed by a third
party affidavit).
Based on these principles, the Court will only grant
discovery in this case where a party provides the Court
with specific and non-conclusory allegations that show the
requested discovery will uncover facts that assist the
Court in ascertaining "whether evidence that could not have
been obtained at the time of trial clearly establishes
petitioner's innocence." 3 (Doc. 1.) Factual development as
3 This does not necessarily mean that if Petitioner is

successful in showing that the unavailable evidence clearly
establishes his innocence, he is automatically entitled to
relief under 28 U.S.C. § 2254. The question of whether
Petitioner's "actual innocence" claim is cognizable under
§ 2254 has yet to be determined by this or any other
Federal court. (See Doc. 1 at 2 (recognizing that district
court must determine viability of actual innocence claim
to when the evidence Petitioner is now using to forge his
actual innocence claim was first available is of obvious
significance and utility in determining whether that
evidence 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 questions
either unrelated or only tangentially related to this issue
would be unable to establish the good cause required for
discovery absent a specific explanation and showing of what
the party expects to find and how that finding would aid
the Court in deciding the issue before it.
I. RESPONDENT'S REQUEST TO PROPOUND INTERROGATORIES TO

PETITIONER'S COUNSEL
In its Motion, Respondent seeks permission to propound
nineteen interrogatories to Petitioner's counsel. (Doc.
35, Ex. A at 2-5.) The Court addresses each proposed
interrogatory in turn.
A. Proposed Interrogatory One
Respondent seeks to discover the witnesses or
affidavits Petitioner intends to rely on in making his
actual innocence claim. (Id. at 2.) Presumably,
Respondent is referring to those witnesses and affidavits
with respect to § 2254).) In granting limited discovery in

this case, the Court does not mean to recognize the
viability of such a claim. Rather, the Court will rule on
that issue at a later date.
7
Petitioner intends to present to the Court during an
evidentiary hearing on this issue. However, discovery on
this issue is unnecessary because the Court will require
the Parties to disclose this information prior to the
hearing. Accordingly, both Parties are ORDERED to file
with this Court a list of all witnesses, affidavits, and
other evidence they will be presenting at the Evidentiary
Hearing by 5:00 p.m. on June 11, 2010. Because Respondent
will be privy to this information regardless of discovery,
good cause does not exist to propound this interrogatory.
Therefore, Respondent's proposed interrogatory request is
DENIED.
B. Proposed Interrogatory Two
In this request, Respondent seeks information
concerning how Petitioner located each affiant. (Id.) In
addition, Respondent requests "the entirety of the
circumstances resulting in the procurement of each specific
person's affidavit." (Id.) This request does not seek
specific information regarding the timing of the
procurement of the affidavits.
Respondent fails to show good cause for this
discovery. In proposing this request, Respondent merely
speculates that learning of the circumstances surrounding
procurement of the affidavits, as opposed to information
8
related specifically to when the affidavits were obtained,
may show a lack of diligence on Petitioner's part or may
uncover useful impeachment evidence (Doc. 33 at 4.)
However, mere speculation and unsupported factual
allegations are insufficient to establish good cause for
discovery. See Arthur, 569 F.3d at 1311. Accordingly,
Respondent's proposed interrogatory request is DENIED .4
C. Proposed Interrogatory Three
Here, Respondent seeks information concerning which
members of Petitioner's defense team prepared each
affidavit 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 not
have 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 interrogatory

request does not mean that Respondent cannot conduct its
own investigation into these matters. In fact, Respondent
has always been free to contact these affiants and ask them
questions concerning either their original testimony or
their later affidavit. Having failed to do so, Respondent
now seeks to gather this information using the imprimatur
of the Court. However, the Court will not sanction an
investigation that Respondent could have conducted earlier
without a showing of good cause, which Respondent has
completely failed to establish.
9
D. Proposed Interrogatory Four
regarding the "means or methods . . . used to substantively
draft and obtain signatures on each of the affidavits."
(Doc. 35, Ex. A at 3.) However, Respondent does not
explain what information it expects to find with this
request, provide any substantiation for its request to
assure the Court that the request is more than a fishing
expedition, or show how the evidence it expects to find
will aid the Court in determining "whether evidence that
could not have been obtained at the time of trial clearly
establishes Petitioner's innocence." (Doc. 1.) Therefore,
Respondent has failed to establish good cause for this
proposed interrogatory request, which is DENIED.
E. Proposed Interrogatory Request Five
Here, Respondent seeks information about whether
members of Petitioner's defense team, or the affiants
themselves, shared the contents of any affidavits with
other affiants. (Doc. 35, Ex. A at 3.) Respondent does
not explain what this discovery will uncover, or why the
facts Respondent expects to uncover are relevant to the
question of "whether evidence that could not have been
obtained at the time of trial clearly establishes
Petitioner's innocence." (Doc. 1.) Apparently, Respondent
10
seeks to attack the creditability of the affidavits, but
fails to provide any explanation as to what facts it
expects to find that challenge their credibility, let alone
provide 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's
proposed interrogatory request is DENIED.
F. Proposed Interrogatory Six
In this request, Respondent asks "[wiho on the defense
team (including both name and position) notarized each of
the affidavits." (Doc. 35, Ex. A at 3.) The Court fails
to see the purpose of this request. Obviously, the names
of the individuals who notarized the affidavits are on the
documents, obviating the need for discovery into that
question. To the extent Respondent seeks information
concerning what role the notary played on Petitioner's
defense team, that information is irrelevant to the issue
before this Court. Accordingly, Respondent's proposed
interrogatory request is DENIED.
G. Proposed Interrogatory Seven
Here, Respondent seeks information concerning the
physical locations where each affidavit was signed. (Id.)
Again, Respondent fails to explain or show how this inquiry
is relevant to "whether evidence that could not have been
11
obtained at the time of trial clearly establishes
H. Proposed Interrogatory Eight
In this Request, Respondent seeks "the basis for the
substantive content of each affidavit." (Doc. 35, Ex. A at
3.) However, Respondent does not explain why this
discovery is necessary. The affidavits themselves should
contain the bases for their content; otherwise, the
probative value of the affidavit is negligible and would be
disregarded by the Court. 5 That is, there is no need for
the requested interrogatory because either the affidavits
contain the bases for their substantive content or, if they
do not, they are irrelevant to the issue before the Court.
Accordingly, Respondent's proposed interrogatory request is
DENIED.
I. Proposed Interrogatory Nine
Here, Respondent requests the documents relied upon in
drafting the affidavits. (Id.) Also, Respondent seeks the
production 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 conclusion
and would be disregarded by the Court. However, an
affidavit containing the basis for the conclusion that Mr.
Doe committed a crime, such as witnessing the event
firsthand, possesses some probative value.
12
Again, Respondent does not explain what information it
expects to find, provide any substantiation for its request
to assure the Court that the request is more than a fishing
establishes Petitioner's innocence." (Doc. 1.)
Accordingly, Respondent's proposed interrogatory request is
DENIED.
J. Proposed Interrogatory Ten
In this request, Respondent seeks "any notes of
interviews with the affiants who signed 'innocence'
affidavits . . . or notes of interviews with persons who
were interviewed but declined to produce affidavits."
(Doc. 35, Ex. A at 9-10.) Again, Respondent does not
explain what information it expects to find with this
request, provide any substantiation for its request to
establishes Petitioner's innocence." (Doc. 1.) Therefore,
Respondent has failed to show good cause for this discovery
and its proposed interrogatory request is DENIED.
13
K. Proposed Interrogatory Eleven
Here, Respondent requests information on the role that
Petitioner, Petitioner's friends, or Petitioner's family
had in locating or obtaining any of the affidavits. (Doc.
35, Ex. A at 4.) Specifically, Respondent asks if "any
member of Petitioner's' [sic] immediate or extended family
or friends ever provide[d] the names of [the] affiants."
(Id.) To the extent Respondent is seeking information
concerning how the affiants were located, the Court finds
that Respondent has failed to establish good cause.
Respondent does not explain what information it expects to
find with this request, provide any factual support to
Accordingly, that portion of Respondent's proposed
However, facts concerning when, if ever, members of
Petitioner's immediate or extended family, or friends
provided the names of the affiants to Petitioner's defense
team is plainly relevant to the Court's inquiry because it
goes directly to the question of when the evidence
14
Petitioner now relies on to support his claim of innocence
first became available. Accordingly, this portion of
Respondent's proposed interrogatory request is GRANTED.
Petitioner's counsel is DIRECTED to answer the following
interrogatory: When, if ever, did any member of
Petitioner's immediate or extended family, or friend
provide the names of the affiants contained in Attachment A
of Respondent's Motion for Discovery to anyone acting on
behalf of Petitioner as a member, past or present, of his
defense team?
L. Proposed Interrogatory Twelve
In this request, Respondent asks if any of the
affiants voluntarily contacted Petitioner's counsel and
provided the information contained in their affidavit prior
to having any contact with Petitioner; Petitioner's family,
friends, or counsel; or anyone working on Petitioner's
behalf. (Doc. 35, Ex. A at 4.) Again, this inquiry goes
directly to when the evidence Petitioner is currently
relying upon became available. That is, Respondent has
shown good cause for this interrogatory because it assists
the Court in determining when any member of Petitioner's
defense team first learned of the information now contained
in the affidavits. Therefore, Respondent's proposed
interrogatory request is GRANTED. Petitioner's Counsel is
15
DIRECRED to answer to following interrogatory: When, if
ever, did any of the affiants contained in Attachment A of
Respondent's Motion for Discovery come forward and contact
anyone acting on behalf of Petitioner as a member, past or
present, of his defense team and provide the information
contained in their affidavit?
M. Proposed Interrogatory Thirteen
Here, Respondent requests information regarding when
"anyone acting on behalf of Petitioner as a member of the
defense team" first made contact with each of the affiants.
(Id.) This inquiry goes directly to the question of when
the evidence Petitioner is currently relying upon became
available. Therefore, Respondent has shown good cause for
this interrogatory because it assists the Court in
determining when Petitioner's counsel first learned of the
information Petitioner now relies on to support his claim
of innocence. Therefore, Respondent's proposed
interrogatory request is GRANTED. Petitioner is DIRECTED
to answer the following interrogatory: When was the first
time anyone acting on behalf of Petitioner as a member,
past or present, of his defense team made contact with each
of the affiants contained in Attachment A of Respondent's
Motion for Discovery?
16
N. Proposed Interrogatory Fourteen
concerning the number of times any individual acting on
Petitioner's behalf contacted each affiant. (Id.) In
addition, Respondent asks for the location and length of,
along with who was present for, each conversation. (Id. at
4-5.) This request again seeks information regarding how,
rather than when, the affidavits were procured.
Respondent has not shown good cause for this discovery
because it concerns the circumstances surrounding the
securing of each affidavit, not when Petitioner first
learned of the information they contain. Respondent
speculates that learning of circumstances surrounding the
procurement of the affidavits, as opposed to information
related specifically to when the affidavits were obtained,
may show a lack of diligence on Petitioner's part or may
uncover useful impeachment evidence. (Doc. 33 at 4.)
However, Respondent's unsupported allegations are mere
speculation and fail to establish good cause. See Arthur,
569 F.3d at 1311. Accordingly, Respondent's proposed
0. Proposed Interrogatory Fifteen
Here, Respondent requests information concerning "any
potential 'innocence' affiant, witness, or person contacted
17

who declined to give and/or sign an affidavit." (Doc. 35,
Ex. A at 5.) However, Respondent has not established good
cause for this discovery. Individuals who refused to
provide Petitioner with affidavits regarding innocence are
not a part of his newly gathered evidence. Again,
Respondent fails to explain what discovery will show, any
factual support for Respondent's allegations, or how
discovery will assist the Court in determining "whether
evidence that could not have been obtained at the time of
trial clearly establishes Petitioner's innocence." (Doc.
1.) Accordingly, Respondent's proposed interrogatory
request is DENIED.
P. Proposed Interrogatory Sixteen
In this request, Respondent seeks the names of all
individuals "who participated in the investigation of the
'innocence' allegations." (Doc. 35, Ex. A at 5.) Again,
Respondent fails to articulate what evidence it expects to
find and how that evidence would assist the Court.
Therefore, Respondent has not established good cause for
this discovery. Accordingly, Respondent's proposed
Q. Proposed Interrogatory Seventeen
Here, Respondent requests information on whether any
type of incentive was provided to any individual to secure
18
their affidavit. (Id.) Once again, Respondent has failed
to establish good cause. Presumably, Respondent believes
that this request may uncover impeachment evidence.
However, Respondent fails to explain what evidence it
believes will be uncovered or provide the Court with any
reason to believe this interrogatory is anything more than
a fishing expedition. (Doc. 33 at 4.) As such,
Respondent's mere speculation fails to establish good
cause. See Arthur, 569 F.3d at 1311. Accordingly,
Respondent's proposed interrogatory is DENIED.
R. Proposed Interrogatory Eighteen
In this request, Respondent seeks "an explanation for
the failure to present all of the affidavits . . . during
state habeas corpus proceedings or by filing an
extraordinary motion for new trial." (Doc. 35, Ex. A at
5.) The request, however, does not develop any factual
support that might assist the Court in making its
determination. Rather, this interrogatory request asks
Petitioner for a preview of his legal argument with respect
to why the innocence affidavits were not presented in prior
proceedings. The purpose of discovery is to "aid in
developing facts." Advisory Committee's Note to Rule 6 of
the Rules Governing § 2254 Cases in the United States
District Courts (granting district courts discretion to
19
limit the extent of discovery in habeas cases)
Respondent's request does not serve this purpose, and is,
therefore, inappropriate. Furthermore, as the Court will
be presented with Petitioner's argument on this subject
regardless of discovery, it cannot be said that this
request will assist the court in determining an issue
before it. Finally, this request is only marginally
related to the question of "whether evidence that could not
have been obtained at the time of trial clearly establishes
S. Proposed Interrogatory Nineteen
Here, Respondent seeks any additional affidavits not
previously disclosed, that Petitioner intends to rely on as
support for his claim. The Court is aware that it would be
unfair to Respondent for Petitioner to present previously
undisclosed affidavits or witnesses at the hearing.
Likewise, the opposite is equally true. Therefore, the
Court has ordered both Parties to file with the Court a
list of all witnesses, affidavits, and other evidence they
will be presenting at the evidentiary hearing. See
Part I.A. As a result, Respondent's proposed discovery
request is DENIED.
20
T. Additional Interrogatory
Not contained in Respondent's requests is an
interrogatory seeking information as to when the first time
any of Petitioner's immediate or extended family, or
friends made contact with an individual who later provided
an affidavit. This information is directly related to the
question of when Petitioner first learned of the evidence
he now relies on to support his claim of innocence.
Therefore, it will assist the Court in determining "whether
evidence that could not have been obtained at the time of
trial clearly establishes Petitioner's innocence." (Doc.
1.) Accordingly, Petitioner's counsel is DIRECTED to
answer the following interrogatory: When was the first time
any of Petitioner's ixmnediate or extended family, or
friends made contact with any of the affiants contained in
Attachment A of Respondent's Motion for Discovery?
II. RESPONDENT'S REQUEST TO PROPOUND INTERROGATORIES TO

THE AFFIANTS
In 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 that
Respondent's requests to the affiants largely mirror his
requests to Petitioner's counsel. Because this Court has
21
already granted discovery through Petitioner's counsel on
those issues for which Respondent has shown good cause, the
Court declines to subject the affiants, who are not parties
to this case, to interrogatories or written depositions.
Any information Respondent might obtain from the affiants
would be merely duplicative of the information provided by
Petitioner's counsel. 6 Accordingly, Respondent's proposed
interrogatory requests to the affiants are DENIED.'
III. PETITIONER'S MOTION FOR DISCOVERY
In his Motion, Petitioner seeks information concerning
the murder of Officer MacPhail, the assault on Larry Young,
and the assault on Michael Cooper. (Doc. 34.) In
addition, Petitioner requests Respondent identify all
witnesses and affidavits it intends to rely on at the
evidentiary hearing. (Id., Ex. A at 5.) Petitioner
propounds four interrogatory and document requests designed
to obtain this information.
A. Proposed Request One
In this request for discovery, Petitioner requests
"all documents related to the investigation of Mr. Davis
and Sylvester `Redd' Coles for the murder of Officer
6 To the extent that Respondent is reasserting his request

to depose the affiants (Doc. 35 at 6), that request is
DENIED.
Again, the Court notes that Respondent is not precluded
from conducting its own investigation. See supra note 4.
22
MacPhail, the assault on Larry Young, and/or the assault on
Michael Cooper kept by the Savannah Chatham County Police
Department and the Chatham County Sherriff's Office."
(Id.) In support of his request, Petitioner contends that
the file may show that Mr. Coles "knew his arrest or
interrogation was imminent" and, as a result, "approached
Savannah Police . . . to accuse [Petitioner] of Officer
MacPhail's murder." (Id. at 3.) Furthermore, Petitioner
"expects that the police file contains recordings and other
materials that will support [Petitioner's] allegation that

"8
certain witnesses testified falsely due to police threats.
(Id. at 4.) Specifically, Petitioner identifies the tape
recorded interrogation of Mr. Mark Wilds, which allegedly
contains evidence that police pressured Mr. Wilds into
identifying Petitioner as the individual who shot Officer
MacPhail. (Id. at 4-5.) Petitioner reasons that this
evidence will corroborate the statements of several
affiants, who state that they were pressured by police into
naming Petitioner as the shooter. (Id.) However,
Petitioner cannot establish good cause for seeking this
discovery because these documents are only marginally
related to the issue before the Court—"whether evidence
8
While Petitioner claims that he did not receive the entire
police file prior to his trial, he is not alleging any
constitutional error in that regard.
23
that could not have been obtained at the time of trial
clearly establishes Petitioner's innocence." (Doc. 1.)
Petitioner's first articulated reason for requesting
this discovery—Mr. Cole being aware of the police
investigation and falsely identifying Petitioner as the
shooter—casts more light on Mr. Coles's motivation for
naming Petitioner as the shooter and how the police
conducted their investigation rather than Petitioner's
claimed innocence. That is, even if Petitioner is correct
and the requested documents indicate that Mr. Coles was
aware he was a suspect when he voluntarily identified
Petitioner, they simply help the Court understand why Mr.
Coles approached the police and identified Petitioner.
Also, assuming Petitioner is correct, the documents may
assist the Court in discerning why the police decided to
focus on Petitioner as a suspect. Yet, there is a
difference between proving that police failed to
investigate every possible suspect and proving that the
suspect the police did investigate is actually innocent of
the crime. As a result, Petitioner cannot establish good
cause for this discovery because it would not sufficiently
help the Court in determining "whether evidence that could
not have been obtained at the time of trial clearly
24
Petitioner's second articulated reason—the presence of
a taped interrogation of Mr. Wilds—also fails to establish
good cause because it is only indirectly related to the
issue before the Court. Indeed, Mr. Wilds neither
testified at Petitioner's trial nor provided an affidavit
in support of Petitioner. Petitioner's claim that the tape
recording will provide additional evidence of police
pressuring witnesses to name Petitioner as the assailant is
many degrees removed from the issue before the Court and
does not bear on Petitioner's claim of innocence. Instead,
the tape recordings, at best, only provide cumulative
evidence for a concept that Petitioner claims to already
have ample evidence of: that Police pressured witnesses to
name Petitioner as the assailant. Such discovery is too
far removed from the question of when evidence of
Petitioner's innocence first became available.
Accordingly, Petitioner has failed to show good cause for
this discovery.
In addition, Petitioner's past actions regarding the
police file refute their present alleged need.
Investigators working on Petitioner's behalf claim to have
listened to and took notes on the contents of the tape
recording as early as 1995. (Doc. 34 at 3 n.2.)
Petitioner claims that he made several requests to the
25
Savannah Chatham County Police Department for the entire
police file, which were all denied. (Id. at 6; see Id.,
Ex. B.) However, the Georgia Open Records Act, O.C.G.A.
H 50-18-70 to -77, provided Petitioner with an avenue to
obtain these records. Petitioner declined to seek
disclosure of the file under the Opens Record Act, despite
having fifteen years to do so. The Court can find no
reason why Petitioner failed, for fifteen years, to seek
disclose of the police report in state court, but now
attaches such import to the file that it would form the
basis of a habeas discovery request. These contradictory
actions leave the Court with the impression that the file
is not as important to Petitioner's claim as he now
purports .9
In conclusion, Petitioner has failed to establish the
good cause necessary to warrant discovery of the police
The Court further notes that Petitioner's actions in this

case also suggest that the Police File is not important to
Petitioner's claim. Specifically, Petitioner's did not
initially request discovery in this case. In his Response
to Respondent's first Motion for Discovery, Petitioner
mentioned that he would seek discovery, apparently
retributively, "if Respondent is allowed discovery of his
own" (Doc. 26 at 14) . Petitioner's act of first
threatening discovery leads the Court to conclude that
Petitioner's current request is not made because of an
actual need for the file, but rather as a sort of
retribution for Respondent's requested discovery. Were the
file as important as Petitioner now claims, he would have
independently requested discovery, rather than threatening
to do so in reaction to any discovery request by Defendant.
26
file. Neither Petitioner's articulated reasons, nor his
actions, suggest that good cause exists for discovery of
the Police File. Therefore, Petitioner's proposed request
is DENIED.
B. Proposed Requests Two and Three
In these requests, Petitioner seeks "all documents
related to all forensic tests on physical evidence related
to [Petitioner's] case that was [sic] not introduced at
trial and that you expect, intend, or may introduce into
evidence 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 to
testify or whose affidavits you may introduce at the
evidentiary hearing." (Id.) Much like Respondent's
previous request, Petitioner wants to know what evidence
Respondent will rely on at the hearing. As previously
noted, the Court has directed the Parties to exchange such
information prior to the evidentiary hearing. See supra
Part I.A. Therefore, Petitioner cannot show good cause for
these proposed requests, which are DENIED.
C. Proposed Request Four
Here, Petitioner seeks a description of and documents
relating to "any investigation done by you since
[Petitioner's] trial, including any interviews with trial
27
witnesses or persons who did not testify at trial, any
additional evidence gathered or learned since trial, any
testing of physical evidence since trial and any evidence
obtained as a result of the investigation." (Doc. 34, Ex.
A at 5-6.) However, Petitioner's request is no more than
one for general discovery and lacks the required factual
allegations to establish good cause. Accordingly,
Petitioner's proposed request is DENIED.
CONCLUSION
For 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 following
interrogatories by 5:00 p.m. on May 27, 2010:
(1) When, if ever, did any member of Petitioner's
immediate or extended family, or friend provide
the names of the affiants contained in Attachment
A of Respondent's Motion for Discovery to anyone
acting on behalf of Petitioner as a member, past
or present, of his defense team;
(2) When, if ever, did any of the affiants contained
in Attachment A of Respondent's Motion for
Discovery come forward and contact anyone acting
on behalf of Petitioner as a member, past or
28
present, of his defense team and provide the
information contained in their affidavit;
(3) When was the first time anyone acting on behalf
of Petitioner as a member, past or present, of
his defense team made contact with each of the
affiants contained in Attachment A of
Respondent's Motion for Discovery; and
(4) When was the first time any of Petitioner's
immediate or extended family, or friends made
contact with any of the affiants contained in
Attachment A of Respondent's Motion for
Discovery?
The Court will hold an evidentiary hearing on this matter
at 10:00 a.m. on June 30, 2010 in the Third Floor Courtroom
of the Tomochichi Courthouse and Federal Building, located
at 125 Bull Street, Savannah, Georgia. The Parties are
ORDERED to file with the Court a list of all witnesses,
affidavits, and other evidence they will be presenting at
the hearing by 5:00 p.m. on June 11, 2010.
SO ORDERED this 7day of April, 2010.
WILLIAMcHIEFJ3GE
T. MOORE, JR
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
29

Troy Davis Discovery Order Hearing Date

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Troy Davis Discovery Order Hearing Date

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Case 4:09-cv-00130-WTM Document 38 Filed 04/27/10 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR

IN RE TROY ANTHONY DAVIS ) CASE NO. CV409-130

Before the Court are the Parties' Motions for

Discovery. (Docs. 34, 35.) For the following reasons,

Respondent's Motion (Doc. 35) is GRANTED IN PART and DENIED

IN PART, and Petitioner's Motion (Doc. 34) is DENIED.

Petitioner's counsel is ORDERED to provide answers to the

granted interrogatories by 5:00 p.m. on May 27, 2010. The

Court will hold an evidentiary hearing on this matter at

10:00 a.m. on June 30, 2010 in the Third Floor Courtroom of

the Tomochichi Courthouse and Federal Building, located at

125 Bull Street, Savannah, Georgia. The Parties are

ORDERED to file with the Court a list of all witnesses,

affidavits, and other evidence they will be presenting at

the hearing by 5:00 p.m. on June 11, 2010.

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

States transferred this Petition for a Writ of Habeas

Corpus to this Court with instructions 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." (Doc. 1.) On

October 9, 2009, Respondent filed a Motion for Discovery.

(Doc. 22.) The Motion sought materials presented by

Petitioner at his state clemency hearing; permission to

depose the attorneys, paralegals, notaries, and other

individuals involved in obtaining affidavits on

Petitioner's behalf; and permission to depose the affiants.

(Id.) On November 25, 2009, this Court entered an Order

denying in part Respondent's Motion for Discovery. (Doc.

30.) In that Order, the Court denied Respondent's request

for the materials presented at the clemency hearing and

reserved ruling on the deposition requests. (Id.) In its

January 5, 2010 Order addressing the deposition requests,

the Court directed the Parties to submit motions that

included a showing of good cause for seeking discovery,

along with proposed interrogatories. (Doc. 32.) Those

Motions are now before this Court.

In Respondent's Motion, the State seeks to propound

multiple interrogatories to both Petitioner's counsel and

the non-party affiants. (Doc. 35.) In support of its

request, Respondent cites "the unique circumstances of this

case" (Id. at 2) and the need to develop "facts relevant to

the issues delineated by the Supreme Court" (Id. at 3).

Specifically, Respondent argues that it "should be

permitted to explore the circumstances surrounding the

obtaining, signing and filing of the[] affidavits." (Id.

at 5-6.) Respondent proposes to explore these

circumstances through specific and limited interrogatories

to individuals involved in obtaining the affidavits, and

either deposing or propounding interrogatories to those

individuals who provided affidavits on Petitioner's behalf.

(Id.) Petitioner has responded in opposition to

Respondent's Motion, arguing that Respondent has failed to

show good cause.

In his Motion, Petitioner argues that good cause

exists for allowing him to discover the contents of the

police investigatory files concerning the murder of Officer

MacPhail, the assault on Larry Young, and the assault on

Michael Cooper. (Doc. 34 at 12.) In addition, Petitioner

requests that if Respondent's Motion is granted, Petitioner

be allowed to conduct reciprocal discovery. (Id. at 2.)

To that end, Petitioner has included proposed