# Thompson v. Superintendent

> District Court, E.D. New York · June 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10308053

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------ x
FOSTER THOMPSON, :
:
Petitioner, :
: ORDER
-against- : 20 Civ. 5805 (DG) (VMS)
:
SUPERINTENDENT, SING SING :
CORRECTIONAL FACILITY, :
:
Respondent. :
:
------------------------------------------------------------ x
Vera M. Scanlon, United States Magistrate Judge:

Petitioner Foster Thompson brings a habeas petition pursuant to 28 U.S.C. § 2254. See
ECF No. 1. Before this Court is Petitioner’s motion to compel Respondent to produce certain
state-court trial transcripts in discovery or as part of the State Court Record relevant to
Petitioner’s petition. See ECF No. 22. For the reasons that follow, Petitioner’s motion is denied.
I. Factual Summary
The following factual summary is derived from the motion submissions and record as
cited.
In 1992, two individuals robbed a “drug den.” See ECF No. 9 at 1, 10; ECF No. 11 ¶ 4.
Cynthia Browning and Alton Staley were shot during the robbery, and Ms. Browning died. See
id. Petitioner and Gilbert Franklin were arrested and charged with related offenses. See ECF
No. 9 at 1, 10. In June 1994, Petitioner and Mr. Franklin were jointly tried; the jury deadlocked
and the court declared a mistrial (“Petitioner and Mr. Franklin’s joint June 1994 mistrial”). See
ECF No. 23. The People’s evidence at Petitioner and Mr. Franklin’s joint June 1994 mistrial
included the testimony of Mr. Staley, Denise Concepcion, Stephen Garzone and Tony Jimenez.
See id. Petitioner and Mr. Franklin were thereafter tried separately, and, in August 1994, Mr.
Franklin was convicted at trial of offenses relating to the robbery (“Mr. Franklin’s August 1994
conviction trial”). See id. The Court will hereinafter collectively refer to the transcripts of
Petitioner and Mr. Franklin’s joint June 1994 mistrial and Mr. Franklin’s August 1994
conviction trial as the “Earlier Trial Transcripts.”

In December 1994, Petitioner was convicted at trial of offenses relating to the robbery,
including murder in the second degree, attempted murder in the second degree and criminal
possession of a weapon in the second and third degrees (“Petitioner’s December 1994 conviction
trial”). See id.1 The Court will hereinafter refer to the transcript of Petitioner’s December 1994
conviction trial as the “Conviction Trial Transcript.”
The People’s evidence at Petitioner’s December 1994 conviction trial included the
testimony of Mr. Staley, Ms. Concepcion and other witnesses who had also been witnesses at
Petitioner and Mr. Franklin’s joint June 1994 mistrial, but not testimony from other witnesses
such as Mr. Garzone or Mr. Jimenez. See id.
In the 1990s, Petitioner unsuccessfully appealed his convictions. See ECF No. 1. He

also filed a federal habeas petition which was denied without prejudice. See id.
In the 2000s, Petitioner’s counsel and others investigated facts regarding the robbery and
Petitioner’s prosecution and trial. See ECF No. 9 at 1-9. For the purpose of this discovery
motion, it is sufficient to summarize that Petitioner alleges in his habeas petition that this
investigation uncovered new evidence of his actual innocence, including third-party statements

1 Although Petitioner may have had a second mistrial after the severance of his prosecution from
Mr. Franklin’s, the declaration of a mistrial apparently occurred during jury selection, and he
does not seek transcripts therefrom. See ECF No. 19-1 at 5569 (“[Petitioner’s] first separate trial
ended in a mistrial.”); ECF No. at 6:4-5 (“The second trial ended at jury selection. So I think
what we’re really talking about is the first just that first trial.”).
that others may have committed the robbery, and that Petitioner and Mr. Franklin are innocent.
See id. According to Petitioner, the investigation also revealed evidence of prosecutorial
misconduct and evidence tampering. See id.
Petitioner filed a motion to vacate his conviction pursuant to Section 440.10 of New York

Criminal Procedure Law. See ECF No. 9 at 16-20. As relevant here, the People’s response to
Petitioner’s Section 440.10 motion included excerpts from the testimony given by Mr. Staley,
Ms. Concepcion and other witnesses at Petitioner and Mr. Franklin’s joint June 1994 mistrial.
See ECF No. 19 at 4534 ¶ 6, 4571-4811 (Staley testimony), 4812-4999 (Concepcion testimony),
5001-5034 (Garzone testimony), 5026-5183 (Jimenez testimony). Petitioner sought full sets of
the Earlier Trial Transcripts in discovery during the Section 440.10 motion proceedings, but his
request was denied. See ECF No. 27 at 4:4-5:12, 14:12-17; id. at 4:15-16 (“[Petitioner’s
counsel:] We tried to raise this issue in a court below and were not given access to those
records.”). Petitioner hopes that there may be material from these witnesses in the Earlier Trial
Transcripts that is potentially relevant to his actual-innocence claim and that would corroborate

his version of events as suggested by his newly discovered evidence. See id. at 5:13-18 (“I think
it goes to the component of our actual innocence claim[.]”), 7:24-8:14 (Petitioner’s counsel
explaining his theory that, among other things, certain testimony from a witness at Petitioner and
Mr. Franklin’s joint June 1994 mistrial who was not called back to testify at Petitioner’s
December 1994 conviction trial could “corroborate the version of the facts that we have now”),
8:8-23 (“The Court: [O]ther than that you think the evidence may be evidence of . . . actual
innocence, is there any other reason why [the Court] should consider . . . expanding the state
court record as it relates to the conviction? [Petitioner’s counsel]: No, Your Honor, I think,
understands the issue fully. . . . This is my client’s last opportunity to really explore the evidence
against him.”), 14:18-21 (Petitioner’s counsel arguing that the transcripts sought pertain to
actual-innocence claim). Despite this optimism, after receiving the adverse ruling in the Section
440.10 proceeding, Petitioner did not move for the material again or appeal this issue. See id. at
4:4-5:12, 14:12-17; id. at 5:3-6 (“[The Court:] Did you re-raise the point? Once the Government

had relied on the transcripts [in the Section 440.10 proceeding], did you – [Petitioner’s Counsel:]
I did not.”). It is thus undisputed that the entirety of the Earlier Trial Transcripts was not part of
the Section 440.10 record before the state court that adjudicated Petitioner’s Section 440.10
motion. See id. at 17:10-11 (“[Petitioner’s Counsel:] Th[e] items were not considered by the
440 court. They were not considered on direct appeal.”).
The state court denied Petitioner’s Section 440.10 motion. See ECF No. 9 at 16-33.
Leave to appeal was denied. See id. at 33. The Court will hereinafter refer to the record before
the state court which adjudicated Petitioner’s Section 440.10 motion as the “Section 440.10
Record,” and the Court will hereinafter collectively refer to the records before the state courts
adjudicating Petitioner’s appeals and post-conviction motions as the “Appellate and Post-

Conviction Records.”
II. Procedural History
In connection with Petitioner’s instant Section 2254 habeas petition, see ECF Nos. 1, 9,
the Court issued an Order directing Respondent to file his answer and the State Court Record
(“SCR”), which
shall include copies of the trial transcript, State court briefs and supporting papers
of both the People and defendant on direct appeal and on any post-trial motions or
motions brought in any collateral proceeding, and on any appeal of such motions,
as well as copies of any orders disposing of any motions, or a sworn detailed
statement as to why all of these documents are not being submitted.
ECF No. 4 ¶ 3. The Court will hereinafter refer to the Order as the “SCR Order.”
Respondent thereafter filed his answer accompanied by 75 pages excerpted from the
Section 440.10 Record. See ECF No. 11. According to Respondent, he provided the Section
440.10 Record excerpts “[t]o assist the Court” but argued that Petitioner was required to file the
Conviction Trial Transcript and Appellate and Post-Conviction Records in full “[b]ecause

[P]etitioner is the party seeking relief and bears the burden of proof.” Id. ¶ 43.
Petitioner filed a pre-motion conference letter motion arguing that Respondent had failed
to comply with the SCR Order by filing only excerpts from the Section 440.10 Record and
requested that the Court compel Respondent to comply with the SCR Order. See ECF No. 13.
Petitioner also argued that the SCR Order should be construed to require Respondent to file all
Earlier Trial Transcripts in their entirety because Petitioner had failed to obtain a complete set of
them through Freedom of Information Law (“FOIL”) requests he had made to the Richmond
County District Attorney’s Office (“RCDAO”).2 See id. Noting that Respondent had relied
upon the excerpted testimony of one or more of the witnesses from Petitioner and Mr. Franklin’s
joint June 1994 mistrial in the state Section 440.10 motion proceedings as well as in

Respondent’s habeas opposition, Petitioner argued that fairness required that Respondent file the
Earlier Trial Transcripts in their entirety as part of the SCR here. See id. at 2.
Respondent opposed Petitioner’s motion. See ECF No. 14. Among other things,
Respondent argued that the SCR should not be construed as including the full Earlier Trial
Transcripts because they had not been submitted in their entirety to the state courts adjudicating
Petitioner’s appeals and post-conviction motions. See id. To the extent that Petitioner’s motion
could be construed as one for Section 2254 discovery, Respondent argued that the motion should

2 The record does not show that Petitioner exhausted appeals of this FOIL denial.
be denied because it sought material beyond the Appellate and Post-Conviction Records that the
Court needed to adjudicate Petitioner’s requested habeas review. See id.
Petitioner’s reply to Respondent’s answer was accompanied by a letter reiterating
Petitioner’s view that the Court should resolve the parties’ dispute regarding the SCR Order by

compelling Respondent to file the Conviction Trial Transcript, the Appellate and Post-
Conviction Records and also the Earlier Trial Transcripts in their entirety as the SCR. See ECF
Nos. 15, 17.
In an Order dated November 3, 2021, the Court denied Petitioner’s motion for a pre-
motion conference regarding the SCR Order. See Dkt. Entry 11/3/2021. The Court stated that it
“reviewed the parties’ pre-motion letters and has determined that a pre-motion conference is not
necessary. The Court’s [SCR Order] directed Respondent to file the [SCR]. Respondent has
failed to comply with [the SCR] Order.” Id. The Court then directed Respondent’s compliance
and added that “[i]f the parties wish to submit additional briefing” following Respondent’s filing
of the SCR, they could jointly propose a schedule for such briefing. Id. In denying Petitioner’s

motion for the pre-motion conference, the Court did not specifically address whether it construed
the SCR Order as requiring Respondent to file the entirety of the Earlier Trial Transcripts as part
of the SCR. See id.
Respondent responded by filing 5,645 pages of material—the Conviction Trial Transcript
and the Appellate and Post-Conviction Records—which he represented was the record before the
state courts which adjudicated Petitioner’s appeals and post-judgment motions. ECF No. 19; see
ECF No. 20. Respondent noted but disagreed with Petitioner’s position that the SCR Order also
required the filing of the Earlier Trial Transcripts in their entirety as part of the SCR. See ECF
No. 19.
III. Petitioner’s Instant Motion To Compel
Petitioner filed the instant motion to compel Respondent to submit the Earlier Trial
Transcripts in full as part of the SCR. See ECF No. 22. Petitioner argues that Respondent’s
omission of the Earlier Trial Transcripts “was not surprising since the [RCDAO] has refused to
disclose these transcripts to [Petitioner] for years, even when prosecutors relied on the select
portions of those transcripts in their response to [Petitioner’s] § 440 motion in litigation before

[the state court].” Id. According to Petitioner, the Earlier Trial Transcripts “are a necessary part
of the [SCR] for consideration of the matters raised by [Petitioner’s] herein Petition.” Id. “They
provide an opportunity to fairly and completely review the credibility of the evidence and
witnesses that were relied on by the prosecution” in Petitioner’s December 1994 conviction trial.
Id. Petitioner also argues that Respondent “would not be prejudiced by the production of the
[Earlier Trial T]ranscripts, which are in [his] sole possession and readily available.” Id.
Respondent opposed, arguing that Petitioner’s request for discovery of the full Earlier
Trial Transcripts should be denied because “review under § 2254(d) is to be limited to the record
before the state court,” and the transcripts sought were not a part of the state court record. ECF
No. 23 (citations omitted).

The Court heard the parties’ arguments and granted the parties’ leave to supplement the
motion record, which they subsequently did. See Dkt. Entry 1/27/2022; ECF Nos. 25-26.
IV. Discussion
“As relevant here, both Congress and federal habeas courts have set out strict rules
requiring prisoners to raise all of their federal claims in state court before seeking federal relief.”
Shinn v. Ramirez, 142 S. Ct. 1718, 1731-32 (2022). First, the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) requires state prisoners to exhaust the remedies available in
state court before seeking federal relief, ordinarily “by raising his federal claim before the state
courts in accordance with state procedures.” Id. at 1732 (citing 28 U.S.C. § 2254(b)(1)(A)). “If
he does so, a federal habeas court may hear his claim, but its review is highly circumscribed.”
Id. “In particular, the federal court may review the claim based solely on the state-court record.”
Id. (citing Cullen v. Pinholster, 563 U.S. 170, 180 (2011)). “[T]he prisoner must demonstrate

that, under th[e Supreme] Court’s precedents, no fairminded jurist could have reached the same
judgment as the state court[.]” Shinn, 142 S. Ct. at 1732 (internal citations & quotations
omitted). “[C]ases emphasize that review under § 2254(d)(1) focuses on what a state court knew
and did.” Pinholster, 563 U.S. at 182. Stated differently, exhaustion affords States “an initial
opportunity to pass upon and correct alleged violations of prisoners’ federal rights[.]” Shinn,
142 S. Ct. at 1732 (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
“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). Courts
have discretion pursuant to Rule 6(a) of the Rules Governing § 2254 Cases to permit discovery
upon the petitioner’s showing of good cause, if specific allegations demonstrate a potential

entitlement to relief. See Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (quoting Bracy
v. Gramley, 420 U.S. 899, 908-09 (1997)); Hirschfield v. Comm’r of the Div. of Parole, 215
F.R.D. 464, 465 (S.D.N.Y. 2003). The requirement that the petitioner show good cause through
specific allegations reflects that “Rule 6 does not license a petitioner to engage in a ‘fishing
expedition’ by seeking documents ‘merely to determine whether the requested items contain any
grounds that might support his petition, and not because the documents actually advance his
claims of error.’” Ruine v. Walsh, No. 00 Civ. 3798 (RWS), 2005 WL 1668855, at *6 (S.D.N.Y.
July 14, 2005) (quoting Charles v. Artuz, 21 F. Supp. 2d 168, 169 (E.D.N.Y. 1998)).
It is undisputed that the state court adjudicating Petitioner’s actual-innocence claim in the
Section 440.10 proceeding did so on a record that did not contain the Earlier Trial Transcripts in
their entirety, in part due to Petitioner’s lack of success in obtaining them in discovery while in
state court or through independent efforts such as purchasing the transcripts himself. See, e.g.,

ECF No. 1 ¶ 12; ECF No. 9 at Statement of Facts and Procedural History, §§ G-H; id. at Point II;
ECF No. 19-12 at 5568-5604; Section III, supra. Although Petitioner moved in state court for
the documents to be produced and was denied, Petitioner did not appeal this ruling such that he
cannot now claim that ruling was in error or expand the record via federal discovery. “Since the
Court cannot consider any evidence that [the Petitioner] might obtain through discovery in
evaluating his habeas petition, [the Petitioner] has not shown that discovery would allow him to
demonstrate that he is entitled to relief.” Olsen v. Doldo, No. 16 Civ. 5366 (RA), 2017 WL
1422431, at *4 (S.D.N.Y. Apr. 20, 2017); see, e.g., Davis v. Bobby, No. 10 Civ. 107 (KAJ),
2017 WL 2544083, at *3 (S.D. Ohio June 13, 2017) (“How can good cause exist to conduct
discovery that, as a matter of law, cannot be used? Put simply, unusable evidence cannot lead to

relief.”); cf. Jackson v. Conway, 763 F.3d 115, 152 (2d Cir. 2014) (“[W]here a district court
relies on extra-state court record facts to grant habeas relief, we might ordinarily remand for a
properly limited review[.]”) (citations & internal quotations omitted).
Even if the Court’s review were able to take into account a supplemented state-court
record, Petitioner argues without specific evidence that he seeks the transcripts from the earlier
trials to “explore” how their content might corroborate his actual-innocence habeas argument
from the newly discovered evidence. See ECF No. 27 at 8:22-23 (“This is my client’s last
opportunity to really explore the evidence against him.”); Section III, supra. This is the sort of
fishing expedition that discovery pursuant to Rule 6(a) does not permit. See Kovalsky v. Lilley,
No. 21 Civ. 602 (NSR) (AEK), 2021 WL 4909966, at *2 (S.D.N.Y. Oct. 21, 2021) (“[A]
petitioner cannot establish ‘good cause’ for discovery in a habeas case where the requested
discovery seems to relate only to alternative strategies that he may now wish to have pursued.”);
Abdi v. Duke, 292 F. Supp. 3d 592, 594 (W.D.N.Y. 2017) (denying the petitioner’s motion for

discovery because “[i]t is not enough to simply surmise that the [records] exist and that they may
be relevant”); Armatullo v. Taylor, No. 04 Civ. 5357 (JSR) (GWG), 2005 WL 2386093, at *21
(S.D.N.Y. Sept. 28, 2005) (“[The petitioner’s] personal belief that further discovery will yield
evidence helpful to him is not enough to establish ‘good cause’ to grant his requests.”); Renis v.
Thomas, No. 02 Civ. 9256 (DAB), 2003 WL 22358799, at *2 (S.D.N.Y. Oct. 16, 2003)
(“Generalized statements regarding the possibility of the existence of discoverable material
cannot yield ‘good cause.’”); Hirschfeld, 215 F.R.D. at 465 (“The [c]ourt may, in its discretion,
deny discovery where the petitioner provides no specific evidence that the requested discovery
would support his habeas petition.”); Charles, 21 F. Supp. 2d at 169 (denying the petitioner’s
discovery motion where his “stated purpose is merely to determine whether the requested items

contain any grounds that might support his petition”). “When the petitioner provides no specific
evidence that the requested material would support his or her habeas corpus petition, courts will
exercise their discretion to deny a discovery request.” Terry v. Conway, No. 11 Civ. 2647
(RRM), 2012 WL 4368746, at *2 (E.D.N.Y. Sept. 22, 2012).
Petitioner further argues that Respondent should be required to produce the Earlier Trial
Transcripts in their entirety because, according to Petitioner, the Court’s Order dated November
3, 2021, adopted Petitioner’s view that the SCR included all Earlier Trial Transcripts in their
entirety. See ECF No. 25. The Court disagrees. The Court’s Order denied Petitioner’s motion
for a pre-motion conference in which Petitioner argued that the SCR Order required Respondent
to file the Earlier Trial Transcripts in their entirety. See Dkt. Entry 11/3/2021. On its face, the
Order dated November 3, 2021, required Respondent—who at the time had only filed excerpts of
the Section 440.10 Record with its answer—to file copies of a “trial transcript” and any others
only to the extent that they had previously been included in the parties’ appellate and post-
conviction motion briefs and supporting papers. See id.; ECF No. 4 ¶ 3.3

V. Conclusion
In light of the foregoing, Petitioner’s motion to compel Respondent to submit the full
transcripts for earlier trials is denied. See ECF No. 22.
Dated: Brooklyn, New York
June 17, 2022

Vera M. Scanlon .
VERA M. SCANLON
United States Magistrate Judge

3 Rule 5(c) of the Rules Governing § 2254 Cases addresses a respondent’s obligations to attach
records to the answer. See Zelaya v. New York, No. 19 Civ. 7140 (RRM), 2021 WL 1210352, at
*2 (E.D.N.Y. Mar. 31, 2021). “However, ‘Rule 5 serves to assist the court, not the petitioner,’”
and the “rule does not empower a petitioner to compel production of transcripts for their personal
legal use.” Id. (quoting Monko v. Senkowski, No. 97 Civ. 2895 (DRH) (ARL), 2009 WL
10441652, at *2 (E.D.N.Y. July 6, 2009)). Although Respondent did not submit the full
transcripts from the earlier trials, his “submissions suffice to allow the Court to adjudicate [the
petitioner’s] claims, and [the petitioner] does not have any further right to state-court transcripts
or their translations.” Zelaya, 2021 WL 1210352, at *2 (“The State has fully complied with Rule
5(c) by submitting those portions of the trial transcripts relevant to the petition.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308053. Public record. Not legal advice.