1

 UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WAYNE NELSON, 

 Petitioner, 

v. 

SHERRY BURT, 

 Respondent. 

 / 

Case No. 2:14-cv-13491 

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER 

DENYING MANDAMUS PETITION [22], 

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, 

AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS 

Petitioner Wayne Nelson filed a mandamus petition to compel or direct 

Respondent to produce discovery. ECF 22. Nelson sought discovery materials even 

though he was convicted more than thirty-six years ago, ECF 15, PgID 594, and the 

judgment in the case was affirmed more than four years before he filed the mandamus 

petition, ECF 21.1 Because Nelson has no right to mandamus relief, the Court will 

deny the petition. 

BACKGROUND 

 In the interest of judicial economy, the Court will adopt the background section 

of Judge Duggan's opinion and order denying the petition for habeas corpus. ECF 15, 

PgID 594–96. 

1 The case was initially assigned to the Honorable Patrick J. Duggan. It was 

reassigned on March 1, 2021. 

Case 2:14-cv-13491-SJM-DRG ECF No. 23, PageID.633 Filed 03/18/21 Page 1 of 5
 2

 Nelson appealed Judge Duggan's opinion and judgment that denied habeas 

relief. ECF 18. But the Sixth Circuit declined to issue a certificate of appealability. 

ECF 21. And more than four years later, Nelson filed the pending petition for a writ 

of mandamus. ECF 22. Nelson now seeks discovery materials that he claims were 

never provided to him, despite a state court's order granting his motion for discovery 

in his criminal case. Id. at 627–30. 

DISCUSSION 

I. Writ of Mandamus 

 Under the All Writs Statute, 28 U.S.C. § 1651, "federal courts may issue all 

writs necessary or appropriate in aid of their respective jurisdictions, including writs 

in the nature of mandamus." Haggard v. Tennessee, 421 F.2d 1384, 1385 (6th Cir. 

1970). The mandamus remedy, however, "is a drastic one, to be invoked only in 

extraordinary situations." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) 

(citation omitted). To ensure that the writ will issue only in extraordinary 

circumstances, the party seeking a mandamus petition must "have no other adequate 

means to attain the" desired relief, and he or she must show that the right to the writ 

is "clear and indisputable." Id. at 35 (citations and quotations omitted). 

While Nelson petitioned for the writ of mandamus to acquire discovery 

materials, he, as a litigant in a habeas corpus action, "is not entitled to discovery as 

a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Although 

the Court may, "for good cause shown," authorize a party to conduct discovery under

Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United States 

District Courts, a habeas petitioner must "present[] specific allegations showing 

Case 2:14-cv-13491-SJM-DRG ECF No. 23, PageID.634 Filed 03/18/21 Page 2 of 5
 3

reason to believe that the facts, if fully developed, may lead the district court to 

believe that federal habeas relief is appropriate." Cornwell v. Bradshaw, 559 F.3d 

398, 410 (6th Cir. 2009) (quoting Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001)). 

 Nelson is seeking to enforce a state court's discovery order that was entered in 

his state criminal case in July 1983. ECF 22. The order allowed defense counsel "to 

examine, and/or be furnished" with witness statements, Nelson's statements, the 

investigator's report, all preliminary complaint reports about the case, Nelson's 

arrest and conviction record, "[a]ll scientific and laboratory reports[,]" and "[a]ll 

corporeal and photographic lineup sheets." ECF 22, PgID 630. The order also allowed 

defense counsel to view visual and physical evidence in the custody of the police. Id. 

The present habeas case is closed, and "a federal court has no general 

jurisdiction to issue writs of mandamus where that is the only relief sought." 

Haggard, 421 F.2d at 1386. Nelson's case was time-barred when he filed it in 2014, 

see ECF 15, and he has failed to show good cause for conducting discovery now. The 

mandamus request "falls more in the category of a fishing expedition[,]" and a district 

court is not required to grant "a fishing expedition masquerading as discovery." 

Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). 

Nelson also has not shown that if the facts were fully developed, habeas relief 

would be appropriate. He merely claims that, decades after his conviction, he has not 

received discovery materials in his state criminal case. ECF 22. But "[t]here is no 

general constitutional right to discovery in a criminal case," Weatherford v. Bursey, 

429 U.S. 545, 559 (1977), and "the Due Process Clause has little to say regarding the 

Case 2:14-cv-13491-SJM-DRG ECF No. 23, PageID.635 Filed 03/18/21 Page 3 of 5
 4

amount of discovery which the parties must be afforded," Wardius v. Oregon, 412 U.S. 

470, 474 (1973). 

Should Nelson need discovery materials to support a motion for relief from 

judgment in the state trial court, his remedy is with that court. The Court lacks the 

authority to enforce the state court's discovery order. See Haggard, 421 F.2d at 1386 

("[F]ederal courts have no authority to issue writs of mandamus to direct state courts 

or their judicial officers in the performance of their duties[.]"). 

II. Certificate of Appealability and In Forma Pauperis Status on Appeal 

 To appeal the Court's decision, Nelson must obtain a certificate of 

appealability. To obtain a certificate of appealability, a petitioner must make "a 

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 

Thus, Nelson must show that reasonable jurists could debate whether the Court 

should have resolved the mandamus request in a different manner, or that the issues 

presented were adequate to deserve encouragement to proceed further. Slack v. 

McDaniel, 529 U.S. 473, 483–84 (2000). Here, jurists of reason would not debate the 

Court's denial of the request. The Court will therefore deny a certificate of 

appealability. 

The Court will also deny Nelson leave to appeal in forma pauperis because he 

cannot take an appeal in good faith. See 28 U.S.C. § 1915(a)(3). 

ORDER 

WHEREFORE, it is hereby ORDERED that Petitioner's mandamus petition 

[22] is DENIED. 

 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

Case 2:14-cv-13491-SJM-DRG ECF No. 23, PageID.636 Filed 03/18/21 Page 4 of 5
 5

IT IS FURTHER ORDERED that leave to proceed in forma pauperis on 

appeal is DENIED. 

SO ORDERED. 

 s/ Stephen J. Murphy, III 

 STEPHEN J. MURPHY, III 

 United States District Judge 

Dated: March 18, 2021 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on March 18, 2021, by electronic and/or ordinary mail. 

 s/ David P. Parker 

 Case Manager 

Case 2:14-cv-13491-SJM-DRG ECF No. 23, PageID.637 Filed 03/18/21 Page 5 of 5