HAYES v. TICE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVON RENEE HAYES, )

) Civil Action No. 17-198

Petitioner, )

) District Judge Joy Flowers Conti

Vv. ) Magistrate Judge Maureen P. Kelly

)

ERIC TICE, Superintendent of SCI Smithfield, _ ) Re: ECF No. 57

THE ATTORNEY GENERAL OF THE )

STATE OF PENNSYLVANIA; and )

DISTRICT ATTORNEY OF ALEGHENY )

COUNTY, )

)

Respondents. )

MEMORANDUM ORDER

Currently before this Court is Petitioner’s Motion for Leave to Conduct Discovery with

Citation to Authority (“Discovery Motion”), which was filed on July 15, 2024. ECF No. 57.

Respondents filed a response in opposition on August 15, 2024. ECF No. 61. Petitioner replied

on August 30, 2024. ECF No. 63. The Discovery Motion is ripe for adjudication.

For the reasons that follow, the undersigned concludes that Petitioner has shown good

cause for at least some limited discovery. However, the specific discovery demands, as set forth

in both the Discovery Motion and Petitioner’s Reply, are overbroad, unclear, and not narrowly

tailored. Accordingly, Petitioner will be given a period of time to submit amended discovery

requests for this Court to review.

I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In early 2017, Davon Renee Hayes (“Petitioner”) filed a Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody (the “Petition”). ECF No. 4. In the

Petition, he sought to attack his convictions for criminal homicide, robbery, and conspiracy, in

connection with the murder of a store clerk. Petitioner previously filed a habeas petition in April

2013, attacking those very same convictions, which was dismissed as time-barred. Hayes v.

Wenerowicz, No. 13-589 (W.D. Pa. Apr. 13, 2015), ECF No. 12.

The instant case was stayed and administratively closed on Petitioner’s motion on March

17, 2017. ECF Nos. 5 and 7.

One year later, on March 20, 2018, the Clerk’s Office received from the United States

Court of Appeals for the Third Circuit an order that granted Petitioner authorization under

28 U.S.C. § 2244 to file a second or successive habeas petition (the “March 20, 2018 Third

Circuit Order”). ECF No. 8. The Third Circuit directed that the District Court is to determine de

novo all issues, including timeliness and exhaustion. Id.

In light of the March 20, 2018 Third Circuit Order, granting Petitioner leave to file a

second or successive Section 2254 petition, This Court sua sponte appointed the Office of the

Federal Public Defender, but limited the appointment to representing Petitioner in the federal

habeas proceedings before this Court. ECF No. 12.

The stay continued while Petitioner litigated in state court. On November 14, 2023,

Petitioner moved to reopen this case, asserting that available state court remedies had been

exhausted. ECF No. 43. This Court lifted the stay and reopened this case on the following day.

ECF No. 44.

On January 12, 2024, Petitioner filed the operative Amended Petition for Writ of Habeas

Corpus. ECF No. 45. Respondents answered on April 8, 2024, ECF No. 49, however, the

operative Answer was docketed on April 10, 2024, at ECF No. 51, as an Errata because the

Answer at ECF No. 49 lacked certain required information in counsel’s signature block.

Petitioner submitted his Traverse on May 23, 2024. ECF No. 56.

In the operative Amended Petition, Petitioner attacks his convictions at Docket Nos. CP-

02-CR-14894-2003, and CP-02-CR-1018-2004 in the Court of Common Pleas of Allegheny

County, Pennsylvania, for: second degree murder, in violation of 18 Pa. C.S.A. § 2502(b),

robbery involving the infliction of serious bodily injury, in violation of 18 Pa. C.S.A. □

3701(a)(1)(i), and criminal conspiracy, in violation of 18 Pa. C.S.A. § 903(a)(1). ECF No. 45 at

12. See also Docket, Com. v. Hayes, No. CP-02-CR-14894-2003 (CCP Allegheny Cnty.)

(available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-

0014894-2003 &dnh=HMWRUxdRDmTrH9TQp%2BdLMg%3D%3D_ (last visited Nov. 21,

2024)). See also Docket, Com. v. Hayes, No. CP-02-CR-1018-2004 (CCP Allegheny Cnty.)

(available at https://ujsportal pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-

0001018-2004&dnh=kdZdwFP laLgrx4Zw9tsqNe%3D%3D (last visited Nov. 21, 2024)).

The procedural history of this case is lengthy. A brief summary of the facts and the

relevant procedural history in state court is provided by the Pennsylvania Superior Court in its

opinion affirming the denial of Petitioner’s fifth — and most recent — petition for post-conviction

relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541

et seq.

As this Court explained in a memorandum affirming dismissal of

Appellant's third PCRA petition:

Appellant confessed to being one of three persons

who robbed a_ store in the East Liberty

neighborhood of Pittsburgh on October 9, 2003.

William Anderson, a clerk at the store, was shot to

death during the robbery. Greg Herring and Victor

Starr were Appellant's co-conspirators. Following a

bench trial, Appellant was convicted of second

degree murder, robbery, and conspiracy. On May

23, 2005, Appellant was sentenced to life in prison

for the murder conviction and a concurrent sentence

of five to ten years’ imprisonment on the robbery

conviction. No additional sentence was imposed on

the conspiracy conviction.

Commonwealth v. Hayes, No. 1919 WDA 2016, unpublished

memorandum (Pa. Super. filed November 9, 2017).!

On direct appeal, this Court affirmed Appellant's judgment of

sentence. Upon review of a petition for allowance of appeal, our

Supreme Court remanded with direction for this Court to consider

whether Appellant's confession should have been suppressed. On

remand, we affirmed the judgment of sentence and, on April 9,

2008, our Supreme Court denied the subsequent petition for

allowance of appeal. Appellant did not seek a writ of certiorari to

the United States Supreme Court. Therefore, his judgment of

sentence became final 90 days later, on July 8, 2008. See

U.S.Sup.Ct.R. 13.1.

On January 21, 2009, Appellant filed a timely pro se PCRA

petition, asserting approximately 50 errors committed by the trial

court and allegedly ineffective trial and appellate counsel.’

Counsel was appointed and filed a Turner/Finley’ no-merit letter,

addressing each of the assertions raised in the petition. The PCRA

court granted counsel's application to withdraw and dismissed

Appellant's petition without a hearing on October 2, 2009. On

October 13, 2010, we affirmed the dismissal.

On April 11, 2011, Appellant filed a second PCRA petition.

Among the claims in that petition was an assertion of trial counsel

ineffectiveness for failing to call alibi witnesses, including Miracle

Smith and Princess Murphy. Second PCRA Petition, 4/11/11, at {{

23-30. On June 2, 2011, the PCRA court dismissed Appellant's

petition. On July 10, 2012, we affirmed the dismissal.

On October 7, 2016, Appellant filed a third PCRA petition, which

the PCRA court denied on November 16, 2016. On appeal, this

Court affirmed. See Commonwealth v. Hayes, No. 1919 WDA

2016, unpublished memorandum (Pa. Super. filed November 9,

2017). On September 5, 2018, our Supreme Court denied his

petition for allowance of appeal.

In our dismissal of Appellant's third petition, we explained that the

petition was facially untimely and we rejected Appellant's

argument that his untimely petition was saved by the newly-

discovered fact exception relating to statements from Darnell Clark

and Richard Peterson and an affidavit from Antoine Lester. Both

Clark and Peterson testified at the 2006 trial of Appellant's co-

conspirator Greg Herring, without implicating Appellant.’ In his

affidavit, Lester represented that he was standing next to Darnell

Clark a few hours after the murder when Clark identified Herring

and Starr to a detective as suspects and said Appellant was not one

of the suspects.

While the appeal from dismissal of the third PCRA petition was

pending before this Court, Appellant filed a motion to file newly-

discovered evidence relating to a May 2017 affidavit signed by

Darnell Clark. The PCRA court dismissed the petition on

September 28, 2017 and Appellant filed an appeal to this Court on

October 18, 2017. On October 25, 2018, we affirmed, noting that

the motion, which the PCRA court treated as a fourth PCRA, was a

legal nullity in light of the pending appeal from the dismissal of

Appellant's third PCRA petition. The Court advised Appellant that

he had 60 days from September 5, 2018—the date the Supreme

Court denied his petition for allowance of appeal involving the

third PCRA petition—to file another PCRA petition relating to the

Clark affidavit. Commonwealth v. Hayes, 1617 WDA 2017,

unpublished memorandum (Pa. Super. filed October 25, 2018).

On November 7, 2018, Appellant filed the instant pro se PCRA

petition, his fifth, asserting that the Clark affidavit was after-

discovered evidence and qualified as an exception to the PCRA's

timeliness requirements.° In addition, Appellant asserted Brady

claims, also with respect to the Clark affidavit, in support of a

governmental interference exception to the timeliness

requirements. On November 28, 2018, counsel entered an

appearance on Appellant's behalf. After several extensions were

granted, on July 31, 2020, counsel filed an amended 55-page

PCRA petition to which eight exhibits, spanning an additional 36

pages, were attached.

By order entered August 10, 2020, the PCRA court directed the

Commonwealth to file a response. After Appellant filed a motion

to amend the amended PCRA petition to include an additional

affidavit, the Commonwealth sought and obtained extensions

before filing its response on March 15, 2021. Appellant's counsel

sought the opportunity to reply to the Commonwealth's response.

Counsel also sought an additional amendment to the petition to

include another witness statement. On June 10, 2021, the

Commonwealth filed its response to which Appellant's counsel

filed a reply on July 12, 2021.

On March 25, 2022, Appellant's counsel requested a status hearing.

Because the trial judge, who also presided over the earlier PCRA

petitions, passed away in October 2020, the case was reassigned to

the Honorable Elliot C. Howsie, who scheduled and then

conducted the status hearing on April 20, 2022.

At the conclusion of the hearing, the PCRA court issued a Rule

907 Notice of its intent to dismiss the petition as untimely.

Appellant did not file a response. On July 13, 2022, the trial court

entered an order dismissing the petition. This timely appeal

followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

[1] In a footnote to the memorandum, the Court explained that

additional details regarding the factual background and procedural

history of the case were provided in Commonwealth v. Hayes, No.

1094 WDA 2005, unpublished memorandum (Pa. Super. filed

October 30, 2007) (direct appeal); Commonwealth v. Hayes, No.

1794 WDA 2009, unpublished memorandum (Pa. Super. filed

October 13, 2010) (first PCRA petition); and Commonwealth v.

Hayes, No. 1025 WDA 2011, unpublished memorandum (Pa.

Super. filed July 10, 2012) (second PCRA petition). Id. at 1 n.1.

[2] Included in the claims was an assertion that trial counsel was

ineffective for failing to call Appellant's alibi witnesses. See Pro Se

Petition, 1/21/09, Part C, at 3 § D (unnumbered).

[4] A jury convicted Herring of second-degree murder and he was

sentenced to life in prison without the possibility of parole. The

individual identified as Starr was never charged or brought to trial.

Com. v. Hayes, 305 A.3d 1017 (Table), Nos. 918 WDA 2022 and 919 WDA 2022, 2023 WL

6307637, at *1-3 (Pa. Super. Ct. Sept. 28, 2023) (footnotes 3 and 5 omitted).

Petitioner’s confession was discussed in the Supplemental Report dated October 10,

2003, ECF No. 45-2 at 12-15, as well as in the trial testimony of Detective Dennis Logan, ECF

No. 45-1 at 127-40. Detective Logan’s contemporaneous notes of the interview with Petitioner

underlying that Supplemental Report — which Logan testified had been reviewed and signed

without changes by Petitioner — were discussed and marked as Exhibit 19 at trial by the

prosecution.! Id. at 137-40. A motion to suppress the confession was denied after a hearing on

March 1, 2005 — just before Petitioner’s non-jury trial began. Id. at 105.

At trial, Petitioner testified and attempted to refute the confession. Id. at 141-48.

Detective Cynthia Smith was called to rebut Petitioner’s testimony. Id. at 154-58. She testified

that she was present at the interview when Petitioner was read his rights, id. at 155-56, as well as

when Petitioner admitted his involvement in the murder, id. at 157-58.

The Pennsylvania Superior Court affirmed the denial of Petitioner’s fifth PCRA petition

on September 28, 2023. Hayes, 2023 WL 6307637. at *1. There is no indication in the record

that Petitioner filed a petition for allowance to appeal to the Pennsylvania Supreme Court. See,

e.g., Docket, Hayes, No. 918 WDA 2022(available at https://ujsportal.pacourts.us/Report/PacDo

cketSheet?docketNumber=9 18%20WDA%202022&dnh=4klcl Cgs YiJs4 Y CnkshaxA%3D%3D

(last visited Nov. 21, 2024)).

The record does not indicate that Petitioner ever has had a hearing on the merits of any of

his PCRA petitions.

II. THE OPERATIVE AMENDED FEDERAL HABEAS PETITION

A. Grounds for Relief

Petitioner raises the following claims in the operative Amended Petition.

Ground One: The prosecution violated its obligation under Brady v. Maryland to

disclose exculpatory or impeachment evidence by failing to disclose

statements made by Darnell Clark and Richard Peterson; specifically for

failing to disclose that:

(1) During a “show up” on Auburn Street on October 9, 2003, Clark told

police that Petitioner was not one of the three men he saw on Moga Street

the day of the shooting;

' The Court was unable to locate Detective Logan’s contemporaneous notes of his interview with

Petitioner in the record in this case.

(2) Clark was reluctant to testify in Petitioner’s trial; and

(3) Peterson gave an inculpatory statement against Greg Herring and

Victor Starr that did not include Petitioner in March of 2005 ~ after

Petitioner’s conviction, but prior to his sentencing.

ECF No. 45 at 1-3, 18-19, and 30-31. See also ECF No. 51 at 3. This ground was considered by

the Third Circuit when it granted permission for Petitioner to proceed with a second or

successive federal habeas petition. ECF No. 8; □□□ also Appl. for Leave to File Second or

Successive Pet., In re Hayes, No. 18-1201 (Gd Cir. filed Feb. 6, 2018), ECF No. 1 at 32.

Ground Two: The prosecution violated its obligation under Brady by failing to disclose

Miracle Smith’s October 12, 2003 statement to police.

ECF No. 45 at 59-60. See also ECF No. 51 at 3.

Ground Three: Alternatively, trial counsel was ineffective for failing to make use of

Miracle Smith’s October 12, 2003 statement at trial.

ECF No. 45 at 65. See also ECF No. 51 at 3.

Ground Four: Petitioner is actually innocent.

ECF No. 45 at 70. See also ECF No. 51 at 3. This claim also was considered by the Third

Circuit when it granted permission for Petitioner to proceed with a second or successive federal

habeas petition. In re Hayes, No. 18-1201, ECF No. 1 at 32.

B. The Evidence at Issue

The operative Amended Petition relies on several articles of evidence which Petitioner

alleges relate to witness statements that were suppressed by the prosecution.

1. Darnell Clark

The first item of evidence is the affidavit of Darnell Clark (“Clark”) dated May 24,

2017.2 ECF No. 51-2 at 32-37. In this affidavit, Darnell Clark describes his observations of

events of October 9, 2003 — the day of the murder.

It begins with Clark observing “three black men loitering by the side of a house on Moga

Street” sometime between midmorning and lunch time, as he was being driven through the East

Liberty neighborhood of Pittsburgh. Id. at 36. Clark recognized one of those men as “Little

Wick,” which was an alias for Greg Herring (“Herring”).’ Id. at 36-37.

Sometime after seeing the three men, Clark was called and informed that his uncle had

been shot and killed. Id. at 36. Clark went to the scene of the killing, where he encountered

police. Id. Clark informed police of the three men that he had observed earlier, took the police

to the location where he had seen them, and then left. Id.

Mid-afternoon the same day, Clark was called to Auburn Park by police in order to

identify the three men that he had seen earlier that day. Id. “[S]everal men and women were

2 The Court acknowledges that there are many people involved in this case, several of whom

have aliases. Accordingly, in order to aid the reader, brief explanations of the identities of a few

key individuals will be provided in footnotes, even though that information might appear

elsewhere in this Memorandum Order.

Darnell Clark (“Clark”) is an individual who saw Greg Herring near the scene of the killing prior

to the murder. He later identified Herring at Auburn Park sometime after the murder. He is

relevant to this case because Petitioner alleges that Clark affirmatively refused to identify

Petitioner at Auburn Park. As set forth more fully below, Petitioner’s characterization of this

event is disputed.

3 Greg Herring (“Herring”), also referred to at various times in the record as “Greg D. Herring,”

“Little Wick,” “Wick,” “Whip,” and “Greg James,” was the individual identified by Clark in

Auburn Park on October 9, 2003. He was convicted of second degree murder for the same

killing of which Petitioner was convicted, but at a separate trial. Clark testified at Herring’s trial,

but not at Petitioner’s trial.

detained” at the park. Police pointed a finger at one of the detainees, and Clark informed police

that he did not recognize him. Id. Clark informed the police that he recognized a second

detainee as “Little Wick,” one of the men that he had seen near Moga Street earlier that day. Id.

Police then asked whether Clark recognized anyone else, and he responded, “No I only

recognized the one guy.” Id. Clark then accompanied police to a police station, where he was

pressured by police to state that he saw the men running out of the store where his uncle had

been murdered; however, Clark refused because that would have been untrue. Id.

Finally, Clark stated that he knew Petitioner, and that Petitioner was not one of the three

individuals that he saw on Moga Street the morning of the murder. Id. at 37. Clark would have

recognized and identified Petitioner. Id. Had Clark been asked to testify at Petitioner’s trial, he

would have testified as to the same. Id.

Importantly, Clark does not state in his affidavit that he saw Petitioner in Auburn Park

when he identified Herring, or that he denied to police that Petitioner was one of the men he saw

on Moga Street earlier that day, or that he refused to identify Petitioner when prompted to do so.

Petitioner does not state in the Amended Petition the specific date that he discovered the

factual predicate underlying Clark’s 2017 affidavit; however, he claims to have first discovered

that Clark testified at Herring’s trial sometime in June of 2016. ECF No. 45 at 14. An

intermediary mailed Clark’s affidavit to Petitioner on or about May 25, 2017. Id. at 21.

Police prepared a “Supplemental Report” that, in part, relayed their interaction with Clark

on October 9, 2003. It states the following, in pertinent part.

[T]he detectives returned to the shooting scene, a little after 1400

hrs., and ran into a witness Darnell Clark, who stated that he is the

nephew of the victim, Anderson. Clark stated that he had received

a telephone call from his cousin, Shawn Featherstone, who was

crying at the time, and told Darnell that his father had been killed.

Clark stated that was the reason he came to the scene, to find out

10

what happened. Clark said that Featherstone immediately hung up

the telephone after this call.

Clark advised about two hours before he was called by

Featherstone, he and a Brandon Thompson were in the general area

of Moga St. and Collins Ave., on their way to get something to eat.

While Thompson was driving down Moga St., Clark noticed three

suspicious black males sitting on some steps, on the side of 708

Moga St., which was a private home. One of these males was

known by Clark as being “LITTLE WICK”. Clark did not know

the guys real name, but described him as being a medium

compleced black male, tall, slender build, 19-20 yoa., wearing a

black cap, and black sweat top. Clark said that “Wick” may have

gotten shot two months ago at Peabody HLS.

Clark walked Detective Fox and myself, back to this location.

While looking around in a wooded area beside this house, the

detectives found a black hooded sweat shirt and a bl nylon type

waist length jacket lying in some bushes. MCU 3558, Detective

Blaze Krae [missing] was notified of these findings, and thereafter

responded to that area. Soon after the K-9 unit also responded.

Clark was then told that he could leave, and that someone would

[missing] getting back to him in the near future.

The reporting detectives returned to the Investigations Branch.

Upon our arrival Detective Blaze Kraeer transmitted over radio

that the suspects were seen over on Auburn St. Ourselves, along

with Lt. Kraus, Sgt. McComb, and Detective Hanlon, responded to

this location, eventually meeting up with Detective Kraeer and the

K-9 Officer. At this location was a Victor Venay,Dob 9/19/84, of

332 Collins Ave. Pgh. [missing] 15206,.h/p-412-661-3860, and a

Greg D. Herring, Dob. 10/4/84, of 636 Collins Ave [missing]

identification purposes, Darnell Clark was called to this location,

6200 block of Aub [missing] St. Clark arrived at this location and

identifying Greg Herring as being, “LITTLE WICK”, and saying

that he was one of the three he saw earlier on Moga St.This

identification was made at 1520 hrs .

Clark advised that about five or ten minutes after he had left

Detective Fox and myself, he saw Herring along with two other

black males walking towards the Meadow St. bridge from Larimer

Ave. Herring and the two then made a left turn onto Auburn St.

right before the bridge. Clark said he drove back to Moga St., only

11

to see that Detective Fox and myself were gone. Clark then alerted

Detective Kraeer, who was still on Moga St.

ECF No. 51-2 at 44-45 (typographical errors as in the original).

Adding additional context — and some confusion — to Clark’s affidavit is Petitioner’s own

affidavit executed in 2011, in which he avers that he and other individuals — including Miracle

Smith (“Smith”)* — witnessed Clark identify both Herring and Victor Starr (“Starr”)? at Auburn

Park on the date of the murder. ECF No. 51-2 at 39-40. Specifically, Petitioner arrived at

Auburn Park at approximately 12:25 PM on the date of the murder. Id. at 39. He and his group

saw Starr and Herring arrive a few minutes later. Id. At approximately 12:35 PM, police arrived

at the park with Clark. Clark “pointed to” Starr and Herring, who were then arrested. Id. There

is no indication in the affidavit whether Petitioner heard any statements made by Clark as this

identification happened.

Further, Petitioner also submits affidavits executed by Antoine Lester (“Lester”) dated

August 24, 2016 and July 24, 2020. ECF No. 51-3 at 1-4. Taken together, Lester indicates in

these affidavits that he was part of a group of people, which included both Smith and Petitioner,

who witnessed Clark’s identification of Herring and Starr in Auburn Park on the date of the

4 Miracle Smith was Petitioner’s fifteen year-old girlfriend at the time of the murder. A

statement given by Smith to police on October 12, 2003 — three days after the killing — is the

subject of Ground Two and Ground Three of the Amended Petition, and is discussed in more

detail below.

> Victor Starr also is referenced at various points through out the record as “Victor Star,” “Star,”

“Vick,” “Vic,” “Victor Fenay,” and “Victor Venay.” He is alleged to have been the third actor in

the murder on October 9, 2003, although the record does not indicate that he ever was charged.

12

murder.® Lester indicates that the police showed up a few hours after Herring and Starr arrived

in the park, and that he, Smith, and Petitioner were among the group of people who were

detained by police during the identification. Id. at 1. Lester averred that he was standing next to

Clark as he identified both Herring and Starr, and that he heard Clark “telling the detectives that

Davon Hayes was not one of the suspects” in his 2016 affidavit. Id. at 2. Lester walked this

back slightly in his 2020 affidavit, and averred that he would have testified that “when he was

asked to identify someone other than Greg Herring and Victor Starr, Darnell Clark did not

identity Davon Hayes in the park on October 9, 2003.” Id. at 4.

Also of relevance to the instant federal habeas petition, Clark was detained on $250,000

bond shortly before he testified at Herring’s trial. ECF No. 51-2 at 1-8. Clark stated that he did

not want to cooperate. Id. at 2. The prosecution had prepared a written motion on the subject.

Id. at 4; ECF No. 51-3 at 36. In the motion — the specifics of which do not appear in the trial

transcript — the prosecution argues that:

The Commonwealth believes and avers that in light of Mr. Clark's

reluctance to testify at the trial of Devon Hayes, representations

made by his family members, the inability of detectives to locate

Mr. Clark, and his failure to appear for a pre-trial interview, a bail

requirement that Darnell Clark remain on house arrest with

conditions to be set by the Court would be appropriate in this case.

Id. at 37 (emphasis added). ’

Petitioner does not identify Lester as part of his group in his 2011 affidavit. In a subsequent

affidavit dated July 24, 2020, Petitioner avers that he was informed by Lester on August 16,

2016, that Lester was in Auburn Park the date of the murder. ECF No. 51-2 at 42-43.

This is somewhat inconsistent with Clark’s 2017 affidavit, in which he avers that “Had I been

asked to testify at Davon Hayes' trial I would have truthfully stated that he was not one of the

three men I saw on the morning of the murder.” ECF No. 51-2 at 37.

13

At Herring’s trial, Clark’s testimony was generally consistent with the police report and

his 2017 affidavit. ECF No. 51-2 at 9-35. Relevant differences of note were that he no longer

could remember the specific timing of events. Id. at 11(“I don’t know the timeframe because it’s

been so long ago”); id. at 25 (uncle shot “maybe a half hour or hour’ after he saw Herring); id. at

22-23 (possibly two or three hours between seeing Herring and being notified of the murder).

Also notably, he testified that he was asked to identify two individuals, including Herring, at the

park. Id. at 16. Petitioner’s name was not mentioned during Clark’s testimony.

Clark’s reluctance to testify at Herring’s trial was clear from the transcript, as discussed

above. ECF No. 51-2 at 1-8. Without deciding, it seems likely that this information was

discovered at least as early as July of 2016, when Petitioner received the transcripts of Herring’s

trial. Id. at 42. However, in the Amended Petition, Petitioner’s counsel indicate that it was not

until sometime in 2018 - when they received the written Application for Detention of a Material

Witness filed April 24, 2006 in Herring’s case - that they discovered the fact that Clark’s

testimony had been sought by the prosecution at Petitioner’s trial, and that Clark had been

reluctant to appear. ECF No. 45 at 21.

2. Richard Peterson

The second item of evidence is a statement made by Richard Peterson (“Peterson”) — who

also is known as “Richard Hicks.” ECF No. 45 at 18; ECF No. 51 at 38 n.16. Like Clark,

Peterson appeared at Herring’s trial, during which he testified that he never provided information

to police regarding Herring on March 16, 2005. ECF No. 51-4 at 6. Peterson’s tape-recorded

statement of the same date was played for the jury. ECF No. 45-1 at 433.

In that statement, Peterson stated that Herring and Starr came to his home on the

afternoon of October 9, 2003, during which time Herring stated that Starr killed a man at the

14

candy store because the victim would not “give it up.” Petitioner was not mentioned in

Peterson’s statement. ECF No. 45-3 at 147-51.

Once again, Petitioner does not clearly state in the Amended Petition the date on which

he discovered Peterson’s statement. This Court presumes, without deciding, that it was when he

received the transcripts of Herring’s trial sometime in July of 2016. See ECF No. 51-2 at 42.

3. Miracle Smith

The final piece of evidence underlying Petitioner’s federal habeas claims is a statement

by Smith to police, which was memorialized in the “Supplemental Report” dated October 12,

2003. ECF No. 51-11 at 68-69.

According to the “Supplemental Report,” Smith indicated that she was Petitioner’s fifteen

year-old girlfriend at that time. Id. at 68. The gist of the statement was that the murder was

committed by Victor Starr and “Gregory James,” individuals that she had known for at least two

years.® Starr and “James” were acquaintances of Petitioner. Id. at 68-69.

Smith indicated that, on the date of the murder, between 1:30 PM and 2:00 PM, she and

Sabrina Brown, the girlfriend of “James,” received a telephone call at Smith’s home from Starr.

Id. at 68. Starr allegedly told Smith that he and James sent a third person into a store on

Sheridan Street to see whether any customers were present. After being informed that no

customers were present, Starr and “James” robbed the store. After the clerk attempted to defend

himself with a handgun that ultimately jammed, James shot the clerk twice in the back. Id. As

they fled the scene, they dropped a handgun, ski mask, black hoodie, and some amount of

8 Petitioner indicates that “Greg James” is actually Herring. ECF No. 45 at 60. This assertion

appears to be undisputed by Respondents.

15

cocaine in an alley near the store. Id. Starr stated on the phone that he and Brown attempted to

return to retrieve the discarded items, but there were too many police in the area. Id. at 68-69.

According to the Supplemental Report, Smith also stated that, prior to the telephone call

with Starr, she was at Omega Park with friends, including Brown. Starr approached them and

asked Brown to do him a favor. Brown and Starr left. About half an hour later, Brown returned,

and stated that she had served as a lookout for Starr as he attempted to retrieve the

aforementioned discarded items from the crime scene. Id. at 69.

Smith also stated that Hayes had called her from jail on October 12, 2003, and told her

that he had been charged with a homicide that “Greg and Victor” had committed. Id.

Petitioner’s habeas counsel assert that they previously had obtained trial counsel’s file in

this matter, but that the Supplemental Report of the police’s October 12, 2003, interview with

Smith was not in the file. ECF No. 45 at 24.

It is unclear from the operative Amended Petition exactly when Petitioner became aware

of this Supplemental Report. Petitioner’s habeas counsel asserts that it was obtained on March

11, 2021 when the Allegheny County District Attorney’s Office provided records at Petitioner’s

counsel’s request. ECF No. 45 at 22 and 67-68. But the record also shows that police prepared a

subsequent Supplemental Report, dated January 8, 2004, which states that it was a clarification

of Miracle Smith’s statement of October 12, 2003. ECF No. 51-4 at 16. In this later report,

Smith identifies Starr and Herring from photo arrays. Id. There appears to be no dispute that

Petitioner was provided the January 8, 2004 Supplemental Report prior to trial.

There appears to be at least some dispute as to whether the Supplemental Report dated

October 12, 2003, memorializing Smiths’ statement was included in the discovery packet

provided to Petitioner prior to trial. Petitioner hedges his bets by raising an alternative

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ineffective assistance of counsel claim, in case trial counsel was in possession of the Miracle

Smith statement.

Petitioner bases his actual innocence claim at Ground Four on the evidence set forth

above. ECF No. 45 at 71-72.

Il. THE DISCOVERY MOTION

A. Standard for Discovery in Federal Habeas Proceedings

“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); Harris

vy. Nelson, 394 U.S. 286, 297 (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). “[B]ald assertions and conclusory allegations do not provide sufficient ground to

warrant requiring the state to respond to discovery[.]” Zettlemoyer v. Fulcomer, 923 F.2d 284,

301 (3d Cir. 1991); Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (same).

Additionally, Rule 6 does not authorize what is commonly referred to as “fishing expeditions,”

and it is not enough for a petitioner to speculate that the discovery he seeks might yield

information that would support one of his claims or that it would give support to a new claim.

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See, e.g., Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994) (quoting with approval Munoz v.

Keane, 777 F. Supp. 282, 287 (S.D.N.Y. 1991) (“petitioners are not entitled to go on a fishing

expedition through the government’s files in hopes of finding some damaging evidence”)).

Further, where an assessment of a habeas petition reveals that it fails on some legal

ground, the proper course is to deny motions seeking factual discovery. Brown v. DiGuglielmo,

No. 07-3465, 2007 WL 4242266, at *1 n.2 (E.D. Pa. Nov. 29, 2007) (citing Williams v. Bagley,

380 F.3d 932, 974-76 (6th Cir. 2004)) (noting that discovery requests relating to procedurally

defaulted claims were properly denied because discovery could not lead to a colorable basis for

relief on those claims); Peterkin v. Horn, 30 F. Supp. 2d 513, 518-20 (E.D. Pa. 1998) (same).

see also Rega v. Wetzel, No. 13-cv-1781, 2014 WL 4079949, at *2 (W.D. Pa. Aug. 18, 2014);

Tedford v. Beard, No. 09-cv-409, 2010 WL 3885207, at *4 (W.D. Pa. Sept. 28, 2010) (“Because

a petitioner in a § 2254 case must first exhaust any claim in state court before he brings it in

federal court, a federal court must, in considering a state prisoner’s motion for discovery, take

into account any lack of diligence on the petitioner’s part in developing the record in state

court.”’).

B. Analysis

In the Discovery Motion, the bulk of Petitioner’s argument that good cause for discovery

exists centers around Clark’s statement at the October 9, 2003 “show up” at Auburn Park. See

generally, ECF No. 57. Any argument in the Motion that good cause for discovery exists with

respect to Peterson or Smith is sparse by comparison. This tenor continues in Petitioner’s Reply.

See, generally, ECF No. 63.

Petitioner also asserts in the Discovery Motion that good cause is shown because

Respondents abandoned the prosecution’s theory in its prosecution of Greg Herring by changing

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the timeline of when Clark observed Herring and other individuals on the day of the murder.

ECF No. 57 at 5 and 10. Respondents deny that they have changed their theory. ECF No. 61 at

3 n.1. Despite having raised it himself in his Discovery Motion, Petitioner asserts in his Reply

that this argument is a distraction. ECF No. 63 at 1.

Respondents assert that discovery should be denied because the Petition lacks merit.

ECF No. 61 at 3-4. In their Answer, Respondents argue that each of Petitioner’s claims is time-

barred, procedurally defaulted, or both. ECF No. 51 at 17, 20, 25, 35, 38, 47, and 50. The sole

exception is Petitioner’s claim of actual innocence, which Respondents argue is not a cognizable

basis for federal habeas relief, but instead is just a gateway to overcome a procedural defect, such

as failing to raise a claim within the statute of limitation or procedural default in state court. Id.

at 53.

When it comes to specific bases for relief, the operative Amended Petition and Discovery

Motions are not models of clarity. Instead, the briefing is dense, and appears to obscure relevant

information rather than to highlight it for the Court’s attention. That said, after a thorough and

lengthy review of the record in this matter, and considering that the Third Circuit has granted

permission for Petitioner to proceed with a second or successive federal habeas petition, the

undersigned concludes that Petitioner has demonstrated good cause for at least some discovery.”

Be that as it may, Petitioner’s specific discovery demands are unclear and, to the extent

that the undersigned can attribute any scope to them, overbroad. For example, in the pending

Discovery Motion, ECF No. 57, Petitioner seeks the following discovery from Respondents.

For clarity, this should not be read as a determination that Petitioner is able to overcome any

procedural bar, or that Petitioner has met his burden under 28 U.S.C. § 2244(b)(2). This Court

expressly reserves judgment on those issues.

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Any and all Allegheny County District Attorney file(s) pertaining

to the investigation of the October 9, 2003 shooting of William

Anderson, including but not limited to the investigation of Gregory

Herring, Davon Hayes, and Victor Starr (AKA Victor Venay,

Victor Star, Victor Fenay), and including but not limited to the

following:

e All materials relating to communication with

Darnell Clark, Davon Hayes, Greg Herring,

Miracle Smith, Richard Peterson (AKA Ricky

Hicks), and Victor Starr (AKA Victor Venay,

Victor Star, Victor Fenay) in connection with

the investigation and prosecution of the October

9, 2003 shooting of William Anderson,

including reports, notes, |§ memoranda,

communications (email and written), written

statements, and recordings;

e All materials relating to any suspect

identification procedures conducted in

connection with the investigation and

prosecution of the October 9, 2003 shooting of

William Anderson (including but not limited to

the show up conducted on October 9, 2003),

including photo arrays, reports, notes,

memoranda, communications (email and

written), written statements, and recordings;

e Inspection and examination of the exhibits from

Commonwealth v. Herring, Allegheny County

Court of Common Pleas, Criminal Division, CC

2005-10184; and

e Inspection and examination of all physical

evidence from the investigation of the October

9, 2003 shooting death of William Anderson.

Any and all Pittsburgh Police file(s) concerning the October 9,

2003 shooting of William Anderson, including, but not limited to:

e Any and all files, notes, memoranda, reports,

communications (email and written) of

Detective Dennis Logan concerning the

investigation and related prosecutions;

e Any and all files, notes, memoranda, reports,

communications (email and written)

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documenting the Pittsburgh Police Department’s

impressions of Detective Dennis Logan and his

investigation practices;

e All materials relating to communication with

Darnell Clark, Davon Hayes, Greg Herring,

Miracle Smith, Richard Peterson (AKA Ricky

Hicks), and Victor Starr (AKA Victor Venay,

Victor Star, Victor Fenay) in connection with

the investigation and prosecution of the October

9, 2003 shooting of William Anderson,

including reports, notes, memoranda,

communications (email and written), written

statements, and recordings;

e All materials relating to any — suspect

identification procedures conducted in

connection with the investigation and

prosecution of the October 9, 2003 shooting of

William Anderson (including but not limited to

the show up conducted on October 9, 2003),

including photo arrays, reports, notes,

memoranda, communications (email and

written), written statements, and recordings; and

e City of Pittsburgh Police Department policy

concerning interviewing, questioning, and

interrogation of criminal suspects in effect in

2003.

ECF No. 57-1 at 1-2.

In his Reply, Petitioner expressed his willingness to revise his demands to the following

request.

[Materials within law enforcement files relating to (1) statements

of Darnell Clark, Richard Peterson, and Miracle Smith, and (2) any

suspect identification procedures — as specified in Mr. Hayes’

motion for discovery. See Doc. 57 at 13.

ECF No. 63 at 4. At first reading, this revised demand appears to be narrower than Petitioner’s

initial one. However, Petitioner’s incorporation of the earlier demand from the Discovery

Motion renders unclear the actual scope of the discovery that Petitioner seeks. For example, to

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the extent that this incorporation includes “[a]ny and all Allegheny County District Attorney

file(s) pertaining to the investigation of the October 9, 2003 shooting of William Anderson,”

ECF No. 57 at 13, such discovery is beyond what Petitioner could expect even at trial. Cf.

Tedford, 2014 WL 4828873, at *12 (“The Commonwealth also persuasively argues that

Petitioner’s request is misplaced because it rests upon the faulty premise that his defense was

entitled to the [State Police’s] entire file prior to his trial. It points out that a criminal defendant

has no legal entitlement to review the prosecution's entire investigative file, either before, during,

or after trial.”). Indeed, the Advisory Committee Notes to Rule 6 of the Rules Governing

Section 2254 Cases admonish that discovery in a habeas case must be “relevant and

appropriately narrow.”

But it is not this Court’s role sua sponte to pare down Petitioner’s discovery demands.

Instead, Petitioner’s counsel is in a much better place to determine what specific information

they need to effectively litigate this case on behalf of their client.

IV. CONCLUSION

For the reasons set forth herein, Petitioner’s Discovery Motion will be granted in part and

denied without prejudice in part. Discovery based on the existing demands will be denied

because they are unclear and overbroad. However, because Petitioner has shown good cause for

at least some discovery, he will be allowed to submit “relevant and appropriately narrow”

discovery demands within 21 days of this Order for this Court’s review. Petitioner is cautioned

that discovery based on unclear, irrelevant, or overbroad demands will be denied.

An appropriate Order follows.

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AND NOW, this al te, of November, 2024, IT IS HEREBY ORDERED that

Petitioner’s Motion for Leave to Conduct Discovery with Citation to Authority, ECF No. 57, is

GRANTED in part and DENIED WITHOUT PREJUDICE in part. Petitioner is DENIED

permission to propound the discovery requests set forth in his Discovery Motion and his Reply.

On or before 21 days from the date of this Order, Petitioner may submit the narrowly tailored

amended discovery requests for this Court’s review, as set forth herein.

IT IS FURTHER ORDERED that, in accordance with the Magistrate Judges Act, 28

U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen

(14) days from the date of this Order to file an appeal to the District Judge which includes the

basis for objection to this Order. Any party opposing such an appeal may respond within

fourteen (14) days thereafter.

Any appeal is to be submitted to the Clerk of Court, United States District Court, 700

Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a

waiver of any appellate rights.

BY THE COURT:

ON wm Oh /

Mi aarsbh fo

MAUREEN P. KELLY off

UNITED STATES MAGISTRATE JUDGE

ce: Hon. Joy Flowers Conti

United States District Judge

All counsel of record (via CM/ECF)

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