United States District Court, M.D. Georgia, Columbus Division
CLAY D. LAND, Chief District Judge.
Pending before the Court is Petitioner Leon Tollette's Motion for Leave to Conduct Discovery and an Evidentiary Hearing. (ECF No. 20). For reasons discussed below, this motion is denied.
I. FACTUAL AND PROCEDURAL HISTORY
Tollette is an inmate on death-row at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. On August 5, 1996,  he "was indicted for malice murder, felony murder, armed robbery, and other crimes, stemming from the shooting death of John Hamilton, a Brinks employee who, at the time, was picking up cash from a SouthTrust bank." Tollette v. State, 280 Ga. 100, 100, 621 S.E.2d 742, 745 (2005). On November 3, 1997, Tollette pled guilty to all charges in the indictment. (ECF No. 8-21 at 7-8). "At the conclusion of the sentencing trial, the jury fixed the sentence for malice murder at death." Tollette, 280 Ga. at 100-01, 621 S.E.2d at 745.
With new counsel, Tollette filed a Motion for New Trial on March 11, 1998 and a First Amended Motion for New Trial on October 20, 1998 (ECF No. 8-5 at 72-86). After holding an evidentiary hearing, the court denied the motion on January 28, 1999. (ECF No. 8-5 at 103).
The Georgia Supreme Court affirmed Tollette's conviction and sentence on November 7, 2005. Tollette, 280 Ga. at 100, 621 S.E.2d at 745.
Tollette filed an Application for Writ of Habeas Corpus in the Butts County Superior Court on August 7, 2007. (ECF No. 9-26). After the court held an evidentiary hearing on January 13, 22-23, 2009, it denied relief in an order dated February 13, 2013. (ECF Nos. 10-21 to 10-24; 12-24).
Tollette filed an Application for a Certificate of Probable Cause to Appeal ("CPC application") in the Georgia Supreme Court on May 20, 2013. (ECF No. 12-26). Finding the "claims properly raised by the Petitioner [were] without arguable merit, " the Georgia Supreme Court denied the CPC application on March 28, 2014 and denied Tollette's Motion for Reconsideration on April 22, 2014. (ECF Nos. 12-27; 12-29).
Tollette filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this Court on May 6, 2014. (ECF No. 1). He raises eight claims and, in the pending motion, seeks discovery and/or an evidentiary hearing regarding three of these claims.
II. STANDARDS GOVERNING DISCOVERY AND EVIDENTIARY HEARING REQUESTS
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Nor is he entitled to an evidentiary hearing in most cases. The Supreme Court has explained that "[a]lthough state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so." Cullen v. Pinholster, 131 S.Ct. 1388, 1401 (2011).
In Pinholster, the Supreme Court explained that if a claim has been adjudicated on the merits in state court proceedings, this Court's review under both 28 U.S.C. § 2254(d)(1) and (2) "is limited to the record that was before the state court." Id. at 1398, 1400 n.7. Tollette argues that " Pinholster's limitations apply only to additional evidence adduced via an evidentiary hearing, not to evidence garnered through discovery." (ECF No. 20 at 7)(emphasis in original). For support, Tollette cites Justice Breyer's opinion in Pinholster. (ECF No. 20 at 7) (citing Pinholster, 131 S.Ct. at 1412) (Breyer, J., concurring in part and dissenting in part)). Justice Breyer concurred in the Court's opinion that "review is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398 (Breyer, J., concurring in part and dissenting in part)). He explained that "[a]n offender who believes he is entitled to habeas relief must first present a claim (including his evidence to the state courts). If the state courts reject the claim, the federal court may review that rejection on the basis of the materials considered by the state court." Id. at 1412. According to Justice Breyer, "there is no role in (d) analysis for a habeas petitioner to introduce evidence that was not presented to the state courts." Id. Based on these statements, the Court cannot agree with Tollette's assertion that Justice Breyer took the "narrower position" that Pinholster's limitations do not apply to "evidence garnered through discovery." (ECF No. 20 at 7).
Instead, the Court in Pinholster did not address discovery in the context of habeas petitions. However, its "linkage to... discovery... is unquestionably present. Coddington v. Cullen, No. CIV-S-01-1290 KJM GGH DP, 2011 U.S. Dist. LEXIS 57442 at *2 (E. D. Cal. May 27, 2011). After Pinholster, this Court cannot hold an evidentiary hearing in which new evidence is introduced to support a claim if the state courts decided the claim on the merits. Nor can the habeas petitioner expand the record, under Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts, to include evidence not considered by the state courts. Greene v. Upton, 644 F.3d 1145, 1160 (11th Cir. 2011). If this Court cannot consider any newly discovered evidence, "it would seem that obtaining discovery... would be futile." Tharpe v. Humphrey, No. 5:10-CV-433 (CAR), 2012 U.S. Dist. LEXIS 6824 at *9 (M. D. Ga. Jan. 20, 2012); see also Runningeagle v. Ryan, 686 F.3d 758, 773 (9th Cir. 2012) (explaining that a habeas petitioner is not entitled to discovery in federal court because his claim is governed by 28 U.S.C. § 2224(d)); Moore v. Mitchell, 708 F.3d 760, 780 (6th Cir. 2013) (explaining that, after Pinholster, federal courts cannot consider the "fruits of discovery" even if parties jointly move to admit the evidence into the record).
For claims not decided on the merits in state court, 28 U.S.C. § 2254(e)(2) "restricts the discretion of federal habeas courts to consider new evidence." Pinholster, 131 S.Ct. at 1401. If a habeas petitioner has failed to develop the factual basis for his claims in state court proceedings as a result of his own lack of diligence, he must satisfy the stringent requirements of 28 U.S.C. § 2254(e)(2) before the Court can allow discovery or hold an evidentiary hearing. Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002); Crawford v. Head, 311 F.3d 1288 (11th Cir. 2002).
The United States Supreme Court has explained that "[b]y the terms of its opening clause [28 U.S.C. § 2254(e)(2)] applies only to prisoners who have failed to develop the factual basis of a claim in State court proceedings.'" Williams v. Taylor, 529 U.S. 420, 430 (2000) (quoting 28 U.S.C. § 2254(e)(2). A petitioner has "failed to develop the factual basis of a claim" only if "there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. at 432.
If discovery is not barred by Pinholster or § 2254(e)(2), Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[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 petitioner establishes "good cause" for discovery if "specific allegations before the court show reason to believe that [he] may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief." Harris v. Nelson, 394 U.S. 286, 300 (1969). "[G]ood cause for ...