IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES A. BRENSON, JR. 

CASE NO. 2:11-CV-1146

Petitioner, JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kemp

v. 

WARDEN, TOLEDO 

CORRECTIONAL INSTITUTION, 

Respondent. 

OPINION AND ORDER

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The case is before the Court to consider Petitioner’s

motion for discovery (Doc. 39), the response (Doc. 40) and the reply (Doc. 44.) For the

reasons that Follow, the motion for discovery will be DENIED. 

I. Facts and Procedural History 

A brief discussion of the facts and procedural history of this case is helpful to

consideration of this motion. 

This case arises out of the June 11, 2000, murder of Norman “Duck” Herrell. 

Petitioner initially was indicted for that crime on July 28, 2000; however, on January 16,

2001, the prosecutor dismissed the indictment pending further investigation. Seven

years and three months later, on April 16, 2008, a second indictment was issued

charging Petitioner and a co-defendant, William Allen, with two counts of aggravated

murder, one count of murder, two counts of kidnaping, and two counts of aggravated

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 1 of 26 PAGEID #: <pageID>
robbery. One of those counts was dismissed by the Court; a jury found Petitioner and

his co-defendant guilty on the remaining counts. On July 31, 2008, the trial court

imposed on both defendants an aggregate term of thirty (30) years to life imprisonment

with eligibility for parole after twenty years. See Exhibit 33 to Return of Writ. 

Represented by new counsel, Petitioner filed a timely appeal. Exhibit 37 to Return

of Writ. He argued on appeal that he had been denied his right to a speedy trial; denied

a fair trial due to the eight-year delay in bringing charges; denied the right to counsel in

connection with his 2008 testimony to the grand jury; denied a fair trial when the

prosecutor failed to advise him that charges already had been filed before he testified to

the grand jury; denied his right to an impartial jury because the trial court refused to

dismiss jurors exposed to pre-trial publicity; denied his right to a fair trial because the

trial court twice refused to grant a mistrial; denied a fair trial in view of testimony from

his prior attorney; denied a fair trial due to admission of Petitioner’s grand jury

testimony to the jury; denied effective assistance of counsel; denied a fair trial based on

cumulative error; that his convictions were against the manifest weight of the evidence;

and that his convictions should have been merged into one count of aggravated murder

and one count of kidnaping or aggravated robbery. See Exhibit 38 to Return of Writ. On

September 28, 2010, the appellate court sustained Petitioner’s claim that his two

convictions on aggravated murder and his convictions on aggravated robbery and

kidnaping should have been merged for sentencing and remanded the case to the trial

court; the appellate court otherwise affirmed the trial court’s judgment. See State v.

-2-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 2 of 26 PAGEID #: <pageID>
Brenson, (“Brenson I”) 2010 WL 3784890, at *1-4 (Delaware Co. App. Sept. 28, 2010). In

its Opinion, the state court of appeals recited these facts: 

On June 11, 2000, at approximately 10:00 p.m., Norman “Duck”

Herrell was at his home talking on the telephone with his ex-wife,

Phyllis Gaskins. A knock on the door at Herrell's house

interrupted the conversation. Herrell told Gaskins that he would

call her back, but he never called.

The next morning, Herrell did not report to work at his

furniture store, J & D furniture. His son, Michael Herrell,

became concerned, and tried repeatedly to call his father

throughout the day. When he still could not reach Herrell by

the afternoon, Michael went to Herrell's house to check on

him.

Michael testified at trial that when he arrived at Herrell's

house, the door was unlocked and there were blankets

hanging over the windows in the living room. Michael

stated that his father was an immaculate housekeeper and

that when he entered the home on June 12th, the house was

a mess, it appeared to have been ransacked, and Herrell's

gun cabinet was open and his guns were missing. Michael

found his father lying face down on the floor in a pool of

blood in the basement. He called 911.

The arriving officers searched the house for additional

victims or suspects. No one else was found to be in the

residence. They also checked for, but did not find, evidence

of a forced entry.

After determining that Herrell's death was a homicide, the

Delaware Police Department contacted the Ohio Bureau of

Criminal Investigation (B.C.I.) for assistance in processing

the crime scene.

While processing the scene, officers recovered several pieces

of evidence. They recovered two knives, including a small

brown knife from the love seat in the basement, which

appeared to have blood on it. After DNA tests were run on

the knife, it was determined that, the blood present on the

knife was that of Herrell.

-3-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 3 of 26 PAGEID #: <pageID>
Officers also recovered a pair of brown cloth gloves, which

were saturated with blood. DNA recovered from those

gloves matched both Herrell's DNA and subsequently that

of Brenson's co-defendant William Allen. Additionally,

authorities recovered a long-sleeved, blue shirt that later was

determined to possess the DNA of Allen, as well as his wife,

Silvy Allen FN1.

FN1. The record reflects that the Allens were married in

2005.

Officers also recovered a guest receipt from a Meijer store in

Oregon, Ohio, which is near Toledo. They were able to

determine that a person who identified himself as K.W.

Yowpp made the purchase and a return on June 9, 2000 FN2.

K.W. Yowpp is a known alias of Brenson. Brenson's

fingerprint was retrieved from the receipt.

FN2. 15T. at 2233

Brenson's fingerprint was also recovered from an envelope

at Herrell's house containing a dog tag.

While searching Herrell's home, authorities observed that

many items in the house had been disturbed, including

pictures taken off walls, chairs moved from the kitchen to

rooms that had blankets over the windows, rooms that had

been ransacked, as if the intruder(s) were looking for

something. They also observed a large quantity of illegal

fireworks in the basement of the house.

Several days following the initial search of Herrell's house,

authorities returned to the house after learning that Herrell

had a safe hidden in the house. Herrell's family had not

disclosed to the authorities that the safe existed, but after

authorities asked about the safe, Herrell's daughter, who

was the only person besides Herrell with the combination to

the safe, opened it for them. Contained within the safe were

silver coins, old stopwatches, a deed to rental property

owned by Herrell, and some jewelry.

-4-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 4 of 26 PAGEID #: <pageID>
Franklin County Deputy Coroner, Dorothy Dean, testified

that Herrell had been stabbed fifty-one times. Three of the

stab wounds were potentially fatal.

During the investigation of Herrell's murder, officers

discovered that Herrell and Brenson spent several months in

prison together at Marion Correctional Institution in 1981.

Herrell's children were also familiar with Brenson, having

seen him with Herrell before. Herrell's children identified

Brenson as “Muhammad.”

Sometime in 2001, officers learned that Ohio Highway Patrol

Trooper Brandon Spaulding stopped Brenson during the

evening hours of June 11, 2000, on U.S. 23 South in the area

of Bucyrus, Ohio. Trooper Spaulding testified at trial that he

was running license plates on vehicles at a rest area, when he

ran the license plate on Brenson's red Ford F–150 at

approximately 8:51 p.m. The truck was registered to Mustafa

Muhammad, which is Brenson's son. At that time, Trooper

Spaulding believed that the license plate on the truck

actually belonged on a different vehicle. The trooper pulled

his cruiser up behind Brenson's vehicle and got out of his

cruiser to approach Brenson. Upon approaching Brenson,

Trooper Spaulding noted that Brenson was sitting in the

vehicle alone.

Trooper Spaulding determined that he had conveyed one of

the letters on the license plate incorrectly to the dispatcher,

and started to explain the mistake to Brenson. Brenson

became angry and began swearing at the trooper, claiming

that the trooper was harassing him because of his race.

Trooper Spaulding noticed that Brenson's front license plate

was in the dashboard. He warned Brenson to attach the

license plate to the front of the vehicle. Eight minutes after

he initiated the stop, Trooper Spaulding cleared the call and

left the rest stop.

According to Brenson FN3, he then went to the next exit to

obtain materials to attach the license plate to the front of the

truck. Brenson testified in 2002 and 2008 before the Delaware

County grand jury that he was on his way to Delaware,

Ohio, to purchase fireworks from Herrell. He also stated in

-5-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 5 of 26 PAGEID #: <pageID>
his 2008 grand jury testimony that he purchased zip ties to

secure the license plate to the front of the truck FN4.

FN3. Brenson did not testify at trial. He did, however, testify

twice before the Delaware County Grand Jury. He first

testified on April 18, 2002. He testified a second time on

April 15, 2008. Additionally, he agreed to meet with police

detectives for an interview on January 14, 2003. It is from a

combination of these three occasions that the prosecution

introduced various statements made by Defendant Brenson

at trial.

FN4. The prosecution attempted to demonstrate that a

search of Brenson's vehicle in October 1999 yielded similar

plastic zip ties in order to show that he did not purchase the

plastic ties because of the June 11, 2000 traffic encounter with

Trooper Spaulding. (12T. at 1390; 1395).

In March 2001, the police recovered Brenson's truck, and

found no blood in the truck. They did find that his front

license plate was attached to the front of the truck with a

coat hanger.FN5

FN5. See note four, supra.

At trial, Phyllis Gaskins testified that when she was speaking

on the phone with Herrell on the night of June 11, 2000, he

told her that two “white guys” were at the door. She later

retracted her statement, claiming that Herrell would not

have called the men “white guys.” Brenson later told

authorities that he saw a van with “two white guys” come

up to Herrell's house as he was leaving. He claimed they

were in a white van with Cuyahoga County license plates on

it.

Brenson told the grand jury that he left Herrell's house that

night and returned to Toledo, arriving home around 11:00 or

12:00 that night. FN6.

FN6. Brenson did not testify at trial. He did, however, testify

twice before the Delaware County Grand Jury. He first

testified on April 18, 2002. He testified a second time on

April 15, 2008. Additionally, he agreed to meet with police

-6-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 6 of 26 PAGEID #: <pageID>
detectives for an interview on January 14, 2003. It is from a

combination of these three occasions that the prosecution

introduced various statements made by Defendant Brenson

at trial.

Brenson also testified before the grand jury that he and Allen

had been friends since 1979, that they both lived in Toledo,

and that they had taken numerous trips together over the

years. At trial, the prosecution called numerous friends and

family members of Brenson to testify that they had seen

Brenson with Allen multiple times throughout the years.

In October 2005, Allen became linked to Brenson through an

informant. Allen reported being the victim of a felonious

assault. As a result, the police obtained a blood sample from

Allen. Subsequently, police were able to link Allen's DNA to

the shirt found in Herrell's kitchen. Allen was also found to

have a 1–in–30 chance of being a contributor to the DNA

found on the blood soaked cloth gloves in Herrell's kitchen.

Prior to being informed that his DNA was found at the scene

of a crime, during an interview with the police in 2005 when

he was the victim of a felonious assault, Allen informed the

police that he was good friends with Brenson, whom he

identified as “Muhammad.” When the police showed Allen

a photograph of Herrell, his demeanor changed and he

looked at the picture and stated that he did not know him.

A car dealer in Toledo testified at trial that in April 2000,

Allen purchased a car for $600 and then sold it back in July

2000 for $200. Shanica Masadeh, Silvy Allen's daughter,

testified at trial that Silvy and Allen suddenly moved to

Florida in July 2000, and that Silvy gave custody of her to

Silvy's grandmother because Silvy could not support her.

The police obtained records from Florida that Allen and

Silvy both worked for a temporary agency from August 8,

2000, to December 20, 2000.

Brenson's first defense attorney, Thomas Beal, testified at

trial that he had a conversation with the Delaware County

Prosecutor on December 3, 2000, that the indictment against

Brenson would be dismissed, most likely by December 15,

2000. Allen then returned to Ohio in late December, 2000.

-7-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 7 of 26 PAGEID #: <pageID>
***

Following their convictions, both defendants were sentenced

to an aggregate of thirty years to life in prison.

Brenson I, No. 09-CA-18, 2010WL 3784890, at *1-4 (Ohio App. 5th Dist. September 28,

2010). On November 3, 2010, the Court of Appeals denied Petitioner’s motion for

reconsideration of its decision on Petitioner’s claims regarding the denial of his right to

a speedy trial, dismissal of jurors based on pre-trial publicity, and merger of the two

aggravated robbery counts for purposes of sentencing. Exhibit 42 to Return of Writ. On

March 30, 2011, the Ohio Supreme Court accepted Petitioner’s appeal on Petitioner’s

propositions of law regarding the alleged violation of his right to a speedy trial and

vacated the appellate court’s decision on merger of offenses in view of State v. Johnson,

128 Ohio St.3d 153 (2010)(overruling State v. Rance, 85 Ohio St.3d 632 (1999)), remanding

the case to the trial court. State v. Brenson, 128 Ohio St.3d 396 (2011). Pursuant to the

remand from the Ohio Supreme Court, the Court of Appeals re-opened the appeal, and

on April 15, 2011, held that Petitioner’s convictions on aggravated robbery should have

been merged for sentencing purposes, and remanded the case to the trial court for resentencing. State v. Brenson (“Brenson II”), No. 09-CA-18, 2011 WL 1466458 (Ohio 5th

Appellate Dist. April 15, 2011). 

Petitioner now asserts in this federal habeas corpus petition that he is in the

custody of the Respondent in violation of the Constitution of the United States based

upon the following grounds, repeated here as set forth in Petitioner’s habeas corpus

petition: 

-8-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 8 of 26 PAGEID #: <pageID>
GROUND ONE: Brenson’s right to a speedy trial was

violated by the eight-year delay between his initial

indictment and eventual trial.

GROUND TWO: Brenson’s due process rights were violated

by the eight-year delay in bringing him to trial.

GROUND THREE: Brenson was prejudiced by the trial

court’s refusal to sever his trial from that of Allen.

GROUND FOUR: Brenson’s 2008 grand jury testimony was

obtained in violation of his right to counsel and should have

been suppressed.

GROUND FIVE: The prosecution abused the grand jury

process by failing to tell Brenson that charges had already

been filed against him (One) (1) hours before his 2008

testimony to the grand jury.

GROUND SIX: Brenson’s right to an impartial jury was

denied by the trial court’s refusal to dismiss jurors who had

been exposed to pre-trial publicity regarding this case.

GROUND SEVEN: The trial court abused its discretion and

denied Brenson his right to a fair trial by failing to grant

mistrials on two occasions after the jury was improperly

exposed to prejudicial information.

GROUND EIGHT: The trial court erred in permitting the

testimony of Brenson’s prior trial attorney, (Att. Beal),

because his testimony could be relevant if the jury used it to

impermissible stack inferences.

GROUND NINE: In a case where the defendant had given

three prior statements (over an eight (8) period) to the police

and his credibility in those statements was a key issue,

should the jury have been given transcripts of those

statement[s] to take back into the jury room during

deliberations, where they could pour over the statement[s]

for any minor inconsistenc[ies]?

-9-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 9 of 26 PAGEID #: <pageID>
GROUND TEN: The trial court erred by permitting

extensive evidence regarding prior crimes, wrongs and bad

acts by Brenson.

GROUND ELEVEN: Brenson was denied his right to

effective assistance of trial counsel.

GROUND TWELVE: Brenson was denied a fair trial by the

cumulative effect of the numerous errors in his trial.

GROUND THIRTEEN: The verdict of guilty was against the

manifest weight of the evidence.

Respondent has filed a return arguing that Petitioner’s claims fail to present issues

appropriate for federal habeas corpus review, are procedurally defaulted, or fail to

provide a basis for federal habeas corpus relief. 

After the Court appointed counsel to represent Petitioner, counsel asked the

Court for permission to conduct discovery. As noted, that motion is the subject of this

Opinion and Order. The Court will separately discuss each of the matters about which

Petitioner has asked to conduct discovery to determine if he has shown good cause to

do so. 

II. Petitioner’s Discovery Requests

A. The Speedy Trial Claims

Petitioner’s request for discovery in regard to his claims that he was denied his

right to a speedy trial (habeas corpus claims one and two) will be discussed together. 

Petitioner wants to depose the following witnesses about these claims: Carol O’Brien,

Delaware County Prosecutor; Kyle Rohrer, Assistant Delaware County Prosecutor;

Mark Leatherman, former Detective and Sergeant, City of Delaware Police Department;

-10-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 10 of 26 PAGEID #: <pageID>
Records Deposition of the Delaware County Prosecutor’s Office; and a Records

Deposition of City of Delaware Police Department. He argues that these depositions

will “fill in the gaps left by the files” concerning the reasons for the long pre-indictment

delay, including whether the police acted negligently in investigating and pursing

charges against him. See Memorandum in Support of Motion for Discovery, Doc. 39, PageID

#3926. Also, Petitioner argues that a records deposition and the deposition of the lead

detective will show whether there is any evidence to corroborate the statements of

David and Darla Herron to police.1

 

A habeas corpus petitioner is not entitled to discovery as of right. Bracy v.

Gramley, 520 U.S. 899 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2011). Rule

6(a) of the Rules Governing Section 2254 Proceedings in the United States District Court

provides that a petitioner “shall be entitled to invoke the processes of discovery

available under the Federal Rules of Civil Procedure if, and to the extent that, the judge

in the exercise of his discretion and for good cause grants leave to do so, but not

otherwise.” Discovery is warranted only 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 v. Nelson, 394 U.S. 286, 300

1

   David Herron died prior to trial, and Darla Herron suffered from dementia. Trial Transcript, at 2315-20 Darla

Herron told police she saw two white males “messing around with their truck.” ECF No. 39-1, PageID #3937. One

of them threw a beer bottle into her front yard, which upset her. She woke up her husband, David Herron, and they

watched the two males walk down Noble Street to London Road returning and carrying items into a pink house. 

David Herron indicated the men were carrying a garbage bag and carrying it into the pink house on High Street. 

They said that Herrell’s security lights kept coming on and off. They suspected Herrell’s son, Mike had something

to do with the murder. Neither David nor Darla could identify the men. Police reports attached by Petitioner in his

Motion for Discovery indicate that police investigated all leads from the Herron’s statements. See id., PageID

#3934-3940. Petitioner does not suggest, nor does the record reflect, in what manner the police could have further

investigated their statements. 

-11-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 11 of 26 PAGEID #: <pageID>
(1969)(quoted in Bracy v. Gramley, 520 U.S. at 908-09; Williams v. Bagley, 380 F.3d 932, 974

(6th Cir. 2004). When a petitioner fails to make “a fact specific showing of good cause

under Rule 6,” the court will deny the discovery requests as a mere fishing expedition.

Stanford v. Parker, above; Williams v. Bagley, above. Finally, if a petitioner had the

opportunity to develop the facts in the state courts but failed to do so, discovery may be

barred by the Antiterrorism and Effective Death Penalty Act of 1996. See, 28 U.S.C. §

2254(e)(2)(A)(ii); Cullen v. Pinholster, -- U.S. --, 131 S.Ct. 1388, 1398 (2011). (“We now

hold that review under § 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits”) .

Petitioner’s claim, to the extent it raises a claim regarding the alleged violation of

state law, fails to present an issue appropriate for federal habeas corpus review. A

federal court may review a state prisoner's habeas petition only on the grounds that the

challenged confinement is in violation of the Constitution, laws or treaties of the United

States. 28 U.S.C. § 2254(a), and may not issue a writ of habeas corpus “on the basis of a

perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders,

848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an

additional state appellate court reviewing state courts' decisions on state law or

procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts must

defer to a state court's interpretation of its own rules of evidence and procedure’” in

considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433

(11th Cir. 1985)). Thus, to the extent that Petitioner is seeking discovery concerning any

claim that state law was violated, that request is improper. 

-12-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 12 of 26 PAGEID #: <pageID>
However, Petitioner also claims a violation of his federal constitutional right to a

speedy trial. After considering the parties’ arguments about the relationship of the

requested discovery to this claim, the Court is not persuaded that review of the record

supports granting Petitioner the discovery he seeks.

The Court begins with a brief analysis of the law relating to this type of claim. 

As this Court said in Curtis v. Warden, Marion Correctional Inst., 2013 WL 5524604, at *10

(S.D. Ohio Oct. 4, 2013). 

The Speedy Trial Clause of the Sixth Amendment is not

triggered until a formal indictment or information is filed or

“the actual restraints imposed by arrest and holding to

answer a criminal charge” have occurred. United States v.

Lovasco, 431 U.S. 783, 788–89, 97 S.Ct. 2044, 52 L.Ed.2d 752

(1977) (quoting United States v. Marion, 404 U.S. 307, 320, 92

S.Ct. 455, 30 L.Ed.2d 468 (1971)); see also Doggett v. United

States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520

(1992). In a case. . . involving a claim of constitutional error

stemming from pre-indictment delay, only the Fourteenth

Amendment's Due Process Clause may be invoked to

provide protection “against oppressive delay.” Lovasco, 431

U.S. at 789 (citing Marion, 404 U.S. at 324).

This case involves pre-indictment delay. The Due Process Clause of the Fifth

Amendment requires dismissal of the charges only where the length of the preindictment delay caused “substantial prejudice” to Petitioner’s right to a fair trial and

the delay was an “intentional device to gain tactical advantage over the accused.” 

United States v. Marion, 404 U.S. 307, 322 (1971). Claims regarding excessive preindictment delay fail “unless the petitioner can show that the government had no valid

reason for the delay or that some tactical advantage was sought to be obtained by the

delay.” United States v. DeClue, 899 F.2d 1465, 1468 (6th Cir. 1990)(citing Payne v. Rees,

-13-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 13 of 26 PAGEID #: <pageID>
738 F.2d 118, 122 (6th Cir. 1984); United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984). 

Respondent argues that under Pinholster any discovery on this claim would be

futile because the facts were developed in the state court proceedings and may not be

developed further in this case. Petitioner, citing to Conway v. Houk, 2011 WL 2119373

(S.D. Ohio May 26, 2011)(King, M.J.), counters that Pinholster is a case involving when

an evidentiary hearing can be held and does not speak, directly or indirectly, to the

issue of discovery.

Conway v. Houk is not necessarily the final word in this District on the impact

which Pinholster may have on discovery in habeas corpus actions. See, e.g., Blevins v.

Warden, Ross Correctional Inst., 2011 WL 6141062, *4 (S.D. Ohio Dec. 9, 2011)(Merz,

M.J.)(“There cannot be good cause to collect evidence which cannot be presented”). At

least one court within the Sixth Circuit has determined that Pinholster requires the court

to decide first if the existing record supports the state courts’ decision on the issue, and

that discovery is warranted only if the state courts made an unreasonable

determination, leaving it open to the federal court to make its own decision as to

whether the claim has merit. See Williams v. Houk, 2012 WL 6607008 (N.D. Ohio Dec. 18,

2012). The Williams court also noted that, as of the date of that decision, the Court of

Appeals “has not yet squarely addressed the specific issue of whether or to what extent

Pinholster impacts the availability of discovery under Habeas Rule 6.” Id. at *4. That

appears still to be true today.

The merits of Petitioner’s federal constitutional speedy trial claims were

addressed in the state courts. See State v. Brenson, supra, at *9-10. The state court of

-14-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 14 of 26 PAGEID #: <pageID>
appeals found, based on factual determinations made in the trial court, that the claim

failed both because Petitioner “failed to establish that the delay in bringing the

indictment caused ... actual prejudice,” which is a prerequisite to establishing a Due

Process violation, and because he also “made no showing that the delay between the

alleged incident and the indictment was an intentional device on the part of the

Government to gain a decided tactical advantage in its prosecution” - the other part of

the test. Id. Petitioner had the opportunity to develop a factual record on these issues

during the state trial court proceedings, and it is unlikely, under Pinholster, that he will

be granted a further opportunity to do so here.

Further, Petitioner asserts, in moving for discovery, that the State’s files “will

reveal whether the State was always actively pursuing charges ... or whether instead the

State was negligent.” That will always be the case where a habeas petitioner claims that

his rights were violated by a pre-indictment delay, and cannot, by itself, serve as

grounds to allow discovery. Such evidence will not assist the Court in resolving the

threshold issue of whether the state courts’ decisions on this claim were unreasonable in

light of the clearly established law, which was correctly cited in the state court of

appeals deicison, based on the state court factual record - the threshold inquiry required

by Pinholster. Further, although it is somewhat difficult to identify with specificity what

any discovery might uncover prior to actually conducting discovery, as this Court held

in Coleman v. Bradshaw, 2007 WL 838933, *3 (S.D. Ohio March 15, 2007), “these

difficulties do not erase petitioner's duty to state with some specificity what he intends

to find or prove from his discovery requests. Pleading a claim ... does not automatically

-15-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 15 of 26 PAGEID #: <pageID>
entitle a petitioner to unfettered, unqualified access to the government's files in the

hopes that he will find something useful.” Petitioner has not cited to anything specific

he anticipates that discovery will uncover beyond the general factors relating to preindictment delay.

Despite his opportunity to challenge the pre-indictment delay in state court,

Petitioner apparently never obtained any evidence to show that the State delayed

indicting him in order to gain some tactical advantage at trial, nor was he able to

persuade the trial court that the delay prejudiced him in any way. His requested

discovery does not go to that second point, and he must establish both unreasonable

delay and prejudice in order to prevail on his pre-indictment delay claim. This Court

concludes that Petitioner has not established that there is reason to believe that he may

be able to succeed on this claim if only he had the benefit of more factual development

of the record. Because that is so, the standard for obtaining discovery under Harris and

Bracy has not been met, and the Court will deny Petitioner’s request for discovery on

this claim. 

Finally, the Court notes that the premise of Petitioner’s argument for discovery -

that it might reveal the State’s negligence in pursuing an indictment - also appears to be

legally insufficient. As another district court within the Sixth Circuit has noted,

The Sixth Circuit has repeatedly held that where the

pre-indictment delay is caused merely by negligence on the

part of prosecutors or police, no due process violation exists.

U.S. v. Rogers. 118 F.3d 466, 476 (6th Cir. 1997) (rejecting the

argument that “reckless or negligent disregard of a

potentially prejudicial circumstance violates the Fifth

Amendment guarantee of due process”); See also U.S. v.

-16-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 16 of 26 PAGEID #: <pageID>
Banks, 27 Fed. Appx. 354, 357 (6th Cir. 2001) (“Our Circuit

has recognized that where delay is due to simple negligence

and not a concerted effort by the government to gain an

advantage, no due process violation exists”). Finally, where

a habeas petitioner fails to show that the prosecutor delayed

the prosecution for illegitimate reasons, it is unnecessary for

a court to determine whether the petitioner satisfies the

“substantial prejudice” requirement. See Wolfe v. Bock, 253

Fed. Appx. 526, 532 (6th Cir. 2007) (petitioner failed to

establish that 15–year delay between murder and his arrest

was for illegitimate reasons, as was required to support

claim that delay violated petitioner's due process right to a

fair trial). 

McGuire v. Ludwick, No. 2:07-cv-15399, 2009 WL 2476452, at *6 (E.D. Mich. Aug.

11, 2009). For all these reasons, the Court finds no merit in Petitioner’s request for

discovery on his pre-indictment delay claim.

B. Abuse of the Grand Jury Process

Citing United States v. Doss, 563 F.2d 265, 276 (6th Cir. 1977)(en banc), petitioner

asserts that prosecutors abused the grand jury process (habeas corpus claim five) by

failing to inform Petitioner that charges had been filed against him before he testified in

2008 before the grand jury. Petitioner contends that he needs discovery on this claim

because he was unable to develop the facts for his claim in post conviction proceedings. 

See Motion for Discovery, ECF No. 39 at 7. Petitioner asserts he was denied his right to

counsel. He also requests an evidentiary hearing to address whether he could make a

knowing, intelligent and voluntary waiver of his rights due to the use of medication. 

Petitioner seeks, in support of these allegations, to take the deposition of Carol O’Brien,

Delaware County Prosecutor; Kyle Rohrer, Assistant Delaware County Prosecutor; and

Mark Leatherman, former Detective and Sergeant, City of Delaware Police Department. 

-17-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 17 of 26 PAGEID #: <pageID>
However, for the following reasons, this Court is not persuaded that Petitioner can

establish good cause for his discovery, i.e. that any specific allegation he presents

causes this Court to believe that Petitioner may be entitled to relief upon further

development of the facts related to this claim. 

Preliminarily, it appears likely that Petitioner has waived any claim related to his

allegation that he was under the influence of medication, and thereby unable to waive

his rights. As this Court has often noted, in recognition of the equal obligation of the

state courts to protect the constitutional rights of criminal defendants, and in order to

prevent needless friction between the state and federal courts, a state criminal

defendant with federal constitutional claims is required fairly to present those claims to

the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do

so, but still has an avenue open to him by which he may present the claims, his petition

is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459

U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a

procedural default, the petitioner can no longer present his claims to a state court, he

has also waived them for purposes of federal habeas review unless he can demonstrate

cause for the procedural default and actual prejudice resulting from the alleged

constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S.

107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state

argues that a federal habeas claim is precluded by the petitioner's failure to observe a

state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court

-18-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 18 of 26 PAGEID #: <pageID>
must determine that there is a state procedural rule that is applicable to the petitioner's

claim and that the petitioner failed to comply with the rule.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id.

Third, it must be decided whether the state procedural forfeiture is an ‘adequate and

independent’ state ground on which the state can rely to foreclose review of a federal

constitutional claim. Id. Finally, if the Court has determined that a state procedural rule

was not complied with and that the rule was an adequate and independent state

ground, then the petitioner must demonstrate that there was cause for him not to follow

the procedural rule and that he was actually prejudiced by the alleged constitutional

error. Id. This “cause and prejudice” analysis also applies to failures to raise or preserve

issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

Here, petitioner never presented the merits of his claim that he was on

medication and thereby unable to waive his rights to any Ohio court. His failure to raise

the claim on direct appeal is a clear procedural default based on the rule in Ohio that

error which appears on the face of the record must be raised on direct appeal or it is

deemed to have been forfeited. If petitioner were to attempt to raise it by any other

means, it would be barred by Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio

St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d

175(1967).

 Petitioner also asserts that the State abused the grand jury process by failing to

advise him that charges had been filed against him prior to his 2008 testimony before

the grand jury. The state court reviewed this claim, concluding that 

-19-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 19 of 26 PAGEID #: <pageID>
In his fifth assignment of error, Brenson claims that the

prosecution abused the grand jury process by failing to tell

Brenson that charges had already been filed against him

prior to his 2008 appearance before the grand jury. We

disagree.

In support of this contention, Brenson cites to the Sixth

Circuit case of U.S. v. Doss (6th Cir. 1977), 563 F.2d 265,

which held that subpoenaing a defendant to testify before

the grand jury after an indictment had been filed against him

amounted to prosecutorial abuse that violated the

defendant's due process rights. The Doss court held, “where

a substantial purpose of calling an indicted defendant before

a grand jury is to question him secretly and without counsel

present without his being informed of the nature and cause

of the accusation about a crime for which he stands already

indicted, the proceeding is an abuse of process which

violates both the Sixth Amendment and the due process

clause of the Fifth Amendment.” Id. at 276.

In Doss, the Court noted, “ ‘the government may not in the

absence of an intentional and knowing waiver call an

indicted defendant before a grand jury and there interrogate

him concerning the subject matter of a crime for which he

stands already indicted.’“ United States v. Doss 563 F.2d at

277 (quoting United States v. Mandujano [1976], 425 U.S. 564,

594, 96 S.Ct. 1768, 1785, 48 L.Ed.2d 212, 233 [Brennan, J.,

concurring] ).

We find Doss to be distinguishable from the facts in the

present case. In Doss, the defendant was commanded to

appear before the grand jury via subpoena. Such was not the

case with Brenson. Brenson was invited to appear before the

grand jury. As noted in our discussion of Brenson's fourth

assignment of error, Brenson was under no compulsion to

either appear or answer questions before the grand jury.

Second, on three separate occasions, once before the grand

jury in 2002, once in a police interview in 2003, and again

before the grand jury in 2008, Brenson elected to waive

representation and speak with the police or the prosecutor

regarding his involvement in the murder of Norman Herrell.

Because we believe that Brenson's waiver of his right to

-20-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 20 of 26 PAGEID #: <pageID>
counsel was knowing, voluntary, and intelligent, we found

that the Miranda warnings suffice to protect Brenson's rights

during post indictment question.

Accordingly, as Brenson intentionally and knowingly

waived his Fifth and Sixth Amendment rights, we find the

trial court did not err in overruling Brenson's Motion # 36.

Accordingly, Brenson's fifth assignment of error is

overruled.

State v. Brenson, 2010 WL 3784890, at *23-24. 

The key elements of this claim, at least as it relates to the situation addressed in

Doss, are the timing of the filing of criminal charges, the timing of the grand jury

testimony, and whether the defendant was informed of the pending charges before he

testified. The relationship of the crime being investigated by the grand jury and the

questions asked of the defendant is also a consideration. All of these facts appear, from

the recitation of facts found in the state court of appeals opinion, already to be in the

record. Petitioner asserts, in his motion, that “facts that have not been developed below

may support” this claim, but he does not explain what those facts might be, nor how

they would assist him in proving his assertion that the grand jury process was abused. 

Even setting aside the Pinholster issue - that is, because this matter was litigated in front

of the trial court and Petitioner clearly had the chance to develop the record, it is not

likely that this Court could consider any new evidence obtained through discovery -

Petitioner has simply not made a sufficient showing of how discovery would make it

more likely that he can prevail on his abuse of the grand jury process claim. Therefore,

he is not entitled to conduct discovery on this issue.

-21-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 21 of 26 PAGEID #: <pageID>
C. Ineffective Assistance of Counsel

In the last claim at issue here, Petitioner asserts that he was denied effective

assistance of counsel because his attorney failed to cross-examine or investigate

inferences from testimony of Petitioner’s former attorney, Tom Beal; failed to request a

jury instruction in regard to Petitioner’s grand jury testimony; and failed to object to

bad acts evidence. Petitioner contends that only depositions will reveal the defense

strategy in this regard. Petitioner seeks the depositions of Attorneys Kirk A. McVay

and Chad A. Heald in support of this claim. 

Preliminarily, Petitioner indicates that he seeks discovery on his claim of

ineffective assistance of counsel based on a new issue, relating to a potential witness,

Floyd Bell, that he did not present to the state courts and which he did not raise in his

initial petition. See Motion for Discovery, Doc. 39, PageID #3932. Again, this Court

cannot grant habeas corpus relief on a claim that was never presented to the state

courts. 

With respect to the testimony of Attorney Tom Beal, Petitioner’s claim, as

articulated in his supplemental traverse (Doc. 38) is that the prosecutor called Mr. Beal

as a witness to show that Petitioner’s co-defendant, Mr. Allen, went to Florida in 2000 in

order to avoid prosecution. The predicate of this claim was testimony from Mr. Beal

that he told Mr. Brenson in December, 2000 (who then presumably told Mr. Allen) that

the indictment was going to be dismissed. According to Petitioner, however, Mr. Beal

could not even say with certainty that he passed that information along to Mr. Brenson,

so that in order for the jury to find that Mr. Allen had fled to avoid prosecution and

-22-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 22 of 26 PAGEID #: <pageID>
then returned to Ohio once he learned that the indictment was going to be dismissed, it

had to stack inferences together. Petitioner claims that information from Mr. Beal’s

notes belies these inferences, essentially by showing that the prosecutor had not made a

final decision about dismissing the first indictment until after Mr. Allen returned from

Florida, and that Petitioner’s counsel could have done a more thorough job of crossexamining Mr. Beal on this point in order to rebut the inference that Mr. Allen had

initially fled to avoid prosecution and came back only after learning that the charges

were being dropped.

The state court of appeals rejected this claim, concluding that Mr. Beal testified

definitively that he told Mr. Allen about the dismissal of the indictment, so that the jury

was being asked to make only one inference from his testimony and not two. Under

those circumstances, the state court held that nothing objectionable occurred during the

course of Mr. Beal’s testimony and, further, that counsel was not ineffective for failing

to conduct a further cross-examination. It also noted that “[t]he strategic decision not to

cross-examine witnesses is firmly committed to trial counsel’s judgment” and that the

scope of cross-examination falls “within the realm of trial counsel’s strategy and

tactics.” State v. Brenson, supra, at *48. 

Petitioner’s counsel apparently already has copies of Mr. Beal’s notes. In order to

prove ineffective assistance of trial counsel, it is difficult to imagine what other evidence

there might be of further areas about which he could have been questioned. If counsel

had a strategy for not pressing the issue further, it is not in the record, so that may

actually be a benefit to Petitioner. Further, on the issue of prejudice, the state court

-23-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 23 of 26 PAGEID #: <pageID>
concluded that the absence of additional questioning on this issue was not prejudicial,

and Petitioner has not explained how depositions of his trial attorneys would shed any

light on that subject. Again, beyond the hope that trial counsel - who may well be

willing to provide affidavits here, and from whom discovery may not be needed - might

say something to bolster this claim, Petitioner has not articulated any specific evidence

which discovery might uncover - and he has the Pinholster problem here as well. The

Court does not see the need for discovery from trial counsel on the issues relating to Mr.

Beal’s testimony.

The two other instances of alleged ineffective assistance of counsel relate to

failures to object - in one instance, to the jury’s receipt, during deliberations, of a

transcript of Petitioner’s grand jury testimony (at least without a limiting instruction),

and in the other, to the admission of prior “bad acts” evidence. The state court of

appeals found that in both instances, even if counsel performed ineffectively, Petitioner

was not deprived of a fundamentally fair trial. It based that conclusion on its

overruling of assignments of error relating to giving the jury the transcripts without a

limiting instruction, noting that nothing suggested the absence of such an instruction

affected the outcome of the case, and that all of the “bad acts” evidence which counsel

failed to object to was actually admissible.

The predicate of these two claims is apparent from the face of the record -

indeed, if it were not, the claims would not properly have been raised on direct appeal. 

And the primary reason given by the state court for overruling these claims relates not

to whether counsel should have asked for an instruction concerning the jury’s use of the

-24-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 24 of 26 PAGEID #: <pageID>
grand jury testimony or objected to the various instances of supposed “bad acts”

evidence, but whether Petitioner had shown prejudice from those failures. That

inquiry, in the habeas corpus context, involves examining the state court’s rationale that

any error in counsel’s performance was harmless to see if that is an unreasonable

application of federal law. That is not a fact-intensive inquiry beyond the need to

examine the trial record in order to see how that evidence compared with other

evidence of guilt and how reasonable the court of appeals’ relevance decision was;

those facts are already in the record, and discovery would not assist either Petitioner or

the Court in making or evaluating the arguments supporting Petitioner’s claim. In

short, nothing that trial counsel could say about their reasons for these alleged

omissions would seem to be pertinent - nor, in light of Pinholster, would such testimony

appear admissible. The Court therefore concludes that Petitioner has not made a valid

case for discovery from trial counsel with respect to any of these claims.

III. Order

For all of the above reasons, Petitioner’s Motion for Discovery (Doc. 39) is

DENIED. 

IV. Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall make

a de novo determination of those portions of the report or specified proposed findings or

-25-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 25 of 26 PAGEID #: <pageID>
recommendations to which objection is made. Upon proper objections, a judge of this

Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a waiver of the right to appeal

the decision of the District Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

-26-

Case: 2:11-cv-01146-EAS-TPK Doc #: 45 Filed: 03/06/14 Page: 26 of 26 PAGEID #: <pageID>