“broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of a habeas corpus proceeding.”
How later courts described this case
- “broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of a habeas corpus proceeding.”
- “federal district courts do not have authority to order prepetition discovery in capital habeas cases”
- holding that a petitioner is not entitled to file a motion for discovery in anticipation of later filing a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, before such a motion is actually filed
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN G. SLUTZKER, )
)
Petitioner, ) Case No. 2:18-cv-00157
)
vs. )
) HON. RICHARD A. LANZILLO
MARK CAPOZZA, Superintendent, ) UNITED STATES MAGISTRATE JUDGE
)
Respondent ) ORDER ON PETITIONER’S MOTION
) FOR LEAVE TO CONDUCT
) DISCOVERY PURSUANT TO HABEAS
) RULE 6
)
) ECF NO. 6
Petitioner Steven G. Slutzker (“Slutzker”) has filed a motion seeking leave to conduct
discovery . ECF No. 30. For the reasons that follow, the motion is DENIED without prejudice to
it being refiled upon the docketing of Slutzker’s Amended Petition. See ECF No. 27.
“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). See also Harris
v. Nelson, 394 U.S. 286, 300 (1969) (“broad-ranging preliminary inquiry is neither necessary nor
appropriate in the context of a habeas corpus proceeding.”). Discovery is authorized in Rule 6(a) of
the Rules Governing Section 2254 Cases in the United States District Court only by leave of court
upon a showing by the petitioner of “good cause,” which may be made “where specific allegations
before the court show reason to believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is ... entitled to relief[.]” Harris, 394 U.S. at 300. See also Bracy, 520 U.S.
at 908-09; Lee v. Glunt, 667 F.3d 397, 404 (3d Cir. 2012). The “burden rests upon the petitioner to
demonstrate that the sought-after information is pertinent and that there is good cause for its
production.” Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011).
In his motion, Slutzker asks for leave to pursue production of the records relating to the
1975 death of John Mudd, Jr., from the Wilkinsburg Police Department, Allegheny County District
Attorney’s Office, Edgewood Police Department, Allegheny County Police Department, and the
Allegheny County Crime Lab. See ECF No., 30, p. 21-22. However, Slutzker’s Amended Petition
has yet to be filed. By previous order of this Court, it is due on or before November 22, 2021. See
ECF No. 27. Therefore, Slutzker essentially seeks pre-petition discovery.1
Federal district courts do not have authority to order prepetition discovery in habeas cases.
See Calderon v. U.S. Dist. Court for the Northern Dist. of California, 98 F.3d 1102, 1106–07 (9th Cir. 1996).
Although the Court of Appeals for the Ninth Circuit discussed a number of factors that militated
against permitting pre-petition discovery, the fundamental barrier was determined to be the lack of
context against which good cause could be measured; without the claims, a district court cannot
“determine the propriety of discovery.” See also United States v. Cuya, 964 F.3d 969, 972-74 (11th Cir.
2020) (holding that a petitioner is not entitled to file a motion for discovery in anticipation of later
filing a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, before such a motion is
actually filed) (citing Brown v. United States, 438 F.2d 1385, 1385 (5th Cir. 1971); Skinner v. United
States, 434 F.2d 1036, 1037 (5th Cir. 1970); Walker v. United States, 424 F.2d 278, 279 (5th Cir. 1970));
Orbe v. True, 201 F. Supp. 2d 671, 680–81 (E.D. Va. 2002) (“federal district courts do not have
authority to order prepetition discovery in capital habeas cases”). See also United States v. Johnson, 2017
1 Slutzker’s motion could arguably be considered a post-petition request given that he has filed a pro se petition. See
ECF No. 1. In this original petition, Slutzker raised numerous claims arguing his entitlement to relief because his
prosecution was barred by a 29-year delay; prosecutorial misconduct; the denial of a recusal motion; insufficient
evidence; and the ineffective assistance of both trial and appellate counsel, among other issues. See id., pp. 3-4. However,
since appointing the Office of the Federal Public Defender to represent Slutzker, counsel has requested leave to file an
Amended Petition. See ECF Nos. 5, 10. The forthcoming Amended Petition, according to Slutzker’s counsel, will
include a claim that his retrial should have been barred by the extensive delay and new ineffectiveness of counsel claims,
among other grounds for relief. See ECF No. 25, pp. 2-3. Thus, the Court will consider this motion to be a request for
pre-petition discovery.
WL 3034928, at *1 (W.D. Pa. July 18, 2017); Johnson v. Lamas, 2011 WL 2982692, at *4 n.6 (E.D. Pa.
July 21, 2011).
Here too, the Court is unable to determine the propriety of the requested discovery, given
the lack of an operative petition. Slutzker’s motion is therefore DENIED without prejudice. Once
Slutzker has filed his Amended Petition outlining his factual allegations, and the Respondent has an
opportunity to respond to the Amended Petition, he may refile his request for discovery and may be
able to obtain Rule 6 discovery upon a showing of good cause. See, e.g., Morales v. Dist. Att’y of
Allegheny Cty., 2017 WL 5467703, at *2 (W.D. Pa. Nov. 14, 2017).
Ordered and Entered this 21st day of October, 2021.
_____________________________
HON. RICHARD A. LANZILLO
United States Magistrate Judge