IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

WILLIAM K. SAPP, 

 Petitioner, 

v. Case No. 2:17-cv-1069 

 Judge Sarah D. Morrison 

CHARLOTTE JENKINS, Warden, Magistrate Judge Kimberly A. Jolson 

Chillicothe Correctional Institute, 

 Respondent. 

 OPINION AND ORDER

 Petitioner, an inmate sentenced to death by the State of Ohio, has pending before this 

Court a habeas corpus petition pursuant to 28 U.S.C. § 2254. This matter is before the Court on 

Petitioner’s Motion for Leave to File the Attached Memorandum in Support of Request to Issue 

a Rule 45 Subpoena to the Clark County Prosecutor’s Office (ECF No. 72), Respondent’s 

Opposition (ECF No. 78), and Petitioner’s Reply (ECF No. 82). For the following reasons, 

Petitioner’s Motion for Leave to File a Memorandum in Support of Request to Issue a Rule 45 

Subpoena to the Clark County Prosecutor’s Office (ECF No. 72), and Request to Issue a Rule 45 

Subpoena (ECF No. 72-1), are GRANTED. 

I. BACKGROUND 

 Petitioner seeks leave to serve upon the office that prosecuted him a Rule 45 subpoena 

for the production of: (1) documents provided in discovery to Petitioner’s trial counsel; and (2) 

copies of legal proceedings against the five co-defendants who were prosecuted in connection 

with two of the murders for which Petitioner was convicted and sentenced to death. (ECF No. 

72-1, at PageID 25762). His request stems from the discovery that this Court ordered regarding 

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the timeliness of a potential Brady claim and an ineffective assistance of trial counsel claim, both 

of which Petitioner seeks to add. (ECF No. 68, at PageID 25741–51; ECF No. 70). 

 Specifically, Petitioner seeks to add a claim that the prosecution suppressed material, 

exculpatory or impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). 

(ECF No. 56-1, at PageID 25579–603). He also seeks to add an alternative claim that, to the 

extent that material exculpatory or impeaching evidence was disclosed, his trial counsel were 

ineffective for failing to recognize the value of that evidence and use it at trial. (Id. at PageID 

25603–12). Petitioner bases these proposed claims on documents disclosed through his 2018 

public records request, including some 30,000 pages of police department records concerning the 

murders of Phree Morrow, Martha Leach, and Belinda Anderson, as well as the attempted 

murder of Hazel Pearson. (ECF No. 56, at PageID 25440). 

This Court previously denied Petitioner’s request to amend because the record was 

insufficient to determine whether Petitioner’s proposed claims were timely under the one-year 

statute of limitations applicable to habeas corpus actions. (ECF No. 68, at PageID 25737–38). 

But the Court denied the amendment request without prejudice and subject to renewal pending 

Petitioner’s ability to demonstrate the timeliness of his proposed claims. (Id., at PageID 25725, 

25750–51). To that end, the Court set deadlines for resolving the dispute over Petitioner’s 

request to: serve a Rule 45 subpoena on the Clark County Prosecutor; serve requests for 

production of documents and interrogatories on postconviction counsel; and depose 

postconviction counsel. (ECF No. 70). 

 As explained below, the Court is satisfied that Petitioner’s Rule 45 subpoena is warranted 

because it is consistent with, and in furtherance of, discovery this Court already prescribed.

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II. STANDARD 

 The discovery processes contained in the Federal Rules of Civil Procedure do not 

automatically apply in habeas corpus actions. “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). In Harris v. Nelson, 394 U.S. 286, 295 (1969), the United States 

Supreme Court held that the “broad discovery provisions” of the Federal Rules of Civil 

Procedure did not apply in habeas corpus proceedings. As a result of the holding in Harris, 

Congress promulgated the Rules Governing Section 2254 Cases In United States District Courts 

in 1976. Specifically, Rule 6(a) provides: 

A party 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 [or her] discretion and for good cause shown grants leave to do so, 

but not otherwise. 

Under this “good cause” standard, a district court should grant leave to conduct discovery 

in habeas corpus proceedings only “‘where specific allegations before the court show reason to 

believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that 

he is . . . entitled to relief. . . .’” Bracy, 520 U.S. at 908–09 (quoting Harris, 394 U.S. at 300); 

see also Williams v. Bagley, 380 F.3d 932, 974–75 (6th Cir. 2004). 

In keeping with the well-settled principle that habeas petitioners are not entitled to go on 

fishing expeditions in search of damaging evidence, this “good cause” standard requires the 

petitioner to at least attempt to identify what he expects to uncover through his discovery 

requests. See Williams, 380 F.3d at 976; see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 

2001). 

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III.DISCUSSION 

 This Court previously found good cause for the discovery Petitioner now seeks. 

Specifically, it noted that it could not resolve from, the existing record, the timeliness of 

Petitioner’s proposed claims. (ECF No. 68, at PageID 25737–38). Petitioner’s now seeks to 

complete that record by serving a Rule 45 subpoena. Specifically, Petitioner seeks to determine 

whether any of the documents he recently gathered were suppressed—or whether any of the 

documents were disclosed to, but not used by, defense counsel. And Petitioner makes the case 

that his proposed subpoena is relevant to whether equitable tolling or § 2244(d)(1)(D) applies to 

support a finding that his proposed claims are timely. (ECF No. 72-1, at PageID 25762). 

To begin, concerning equitable tolling, Petitioner reiterates that postconviction counsel 

never obtained a complete copy of the trial transcript. He further states that, despite good faith 

efforts, he has been unable to locate trial counsel’s file. (ECF No. 72-1, at PageID 25762–64; 

ECF No. 82, at PageID 30779). Petitioner additionally asserts that postconviction counsel’s 

failure to obtain a complete copy of the transcript violated prevailing standards of conduct and 

could support an application of equitable tolling. (ECF No. 72-1, at PageID 25763). On that 

point, Petitioner seeks to understand what the prosecution provided to defense counsel in 

discovery so that he may reconstruct the missing parts of defense counsel’s file. In turn, he says 

the Court would have the evidence it needs to assess postconviction counsel’s performance—an 

issue on which this Court expressly stated it needed more evidence. 

 Next, concerning the applicability of § 2244(d)(1)(D), Petitioner asserts that without trial 

counsel’s file, he is unable to determine which of the records he recently obtained were 

suppressed by the prosecution in possible violation of Brady, or which records were provided to 

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but not used by defense counsel in support of a possible ineffective assistance of counsel claim. 

(Id. at PageID 25764). Petitioner reasons that under § 2244(d)(1)(D), the one-year period of 

limitations would not begin to run on his proposed Brady claim until he identifies the evidence 

that the prosecution failed to disclose in discovery, and would not begin to run on his proposed 

ineffective assistance claim until he identifies which evidence the prosecution did provide to 

defense counsel. 

 Petitioner adds to his need for this evidence by arguing that his Brady and ineffective 

assistance of counsel claims are “the converse” of “typical” habeas claims, where the petitioner 

initially learns through habeas discovery the identity of documents that the police generated 

during the course of their investigation. In contrast, here, Petitioner says, he already “knows the 

identity of the documents that the police generated in the course of their investigation, but he 

does not know which documents the prosecution provided in discovery.” (Id. at PageID 25765, 

n.1). By obtaining documents provided in discovery to Petitioner’s trial counsel, as set forth in 

his proposed Rule 45 subpoena, Petitioner asserts that he can reconstruct trial counsel’s missing 

files and ascertain which of the documents Petitioner obtained through his public records request, 

if any, were actually provided by the prosecution to defense counsel during pretrial discovery. 

(Id., at PageID 25763–64). And by obtaining copies of legal proceedings against his five codefendants, he continues, he could determine which favorable documents may have been 

available to trial counsel if they had just reviewed those legal proceedings. 

 Respondent raises several arguments in opposition, but none persuade the Court. For 

one, Respondent does not address Petitioner’s proposed ineffective assistance of trial counsel 

claim. Instead, Respondent focuses on only Petitioner’s proposed Brady claim. At base, 

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Respondent asserts that none of the requested materials would illuminate the issue of whether 

Petitioner’s proposed Brady claim is timely. (ECF No. 78, at PageID 30741). Respondent 

reasons that because Petitioner already has all of the documents that the Springfield Police 

Department provided, “more of the same from the Clark County Prosecutor’s office would not 

enlighten, any better than the records already filed with this Court, the sole issue of timeliness of 

Sapp’s proposed Brady claim amendments.” (Id., at PageID 30741). Respondent continues that 

additional documents from the county prosecutor would add nothing more than a “double-check” 

on the completeness of what the Springfield Police Department provided and is on file. (Id. at 

PageID 30741–42). Relatedly, Respondent says that Petitioner’s admission that he is not seeking 

new evidence in support of his proposed Brady claim—just which documents the prosecutor 

provided—shows that “Sapp is focused solely on supposed development of his proposed Brady

claim, where the results of the proposed discovery illuminate only the actions of the Clark 

County Prosecutor’s office as to the ‘suppression’ component of Sapp’s proposed Brady claim.” 

(Id. at PageID 30742). 

Respondent underestimates the value of the documents. Whether the documents were 

suppressed, or were provided but not used, speaks to the timeliness of Petitioner’s proposed 

claims vis-à-vis whether he could have obtained the police records sooner and raised his 

proposed claims sooner. The fact that Petitioner already possesses documents provided by the 

Springfield Police Department does not answer that question. Petitioner’s requests would not, as 

Respondent argues, provide a mere “double-check” of the completeness of what the Springfield 

Police Department provided. Petitioner’s Rule 45 requests would not just illuminate what 

documents were suppressed as an element of his proposed Brady claim, or what documents were 

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provided as an element of Petitioner’s proposed trial counsel ineffectiveness claim; they would 

also speak directly to the timeliness issue by shedding light on what was available and when. As 

noted above, Petitioner’s proposed claims are the reverse of “typical” habeas claims, whose 

factual predicates are often learned of for the first time during habeas corpus discovery. 

Petitioner has the documents. He just does not know if they were suppressed or were disclosed 

but then not used. His Rule 45 requests are tailored to answer that question, not provide a 

“double-check.” 

 Further, it is not necessarily the conduct of Petitioner and his habeas counsel during the 

past two years that is dispositive of the timeliness question. Respondent argues that the 

documents the Springfield Police Department provided “prove convincingly that these records 

have been available at least since May 17, 1997, with nothing more than a written request and 

payment of a ten cents per page copy charge.” (Id. at PageID 30743). He bases that argument 

on the fact that a local newspaper, as well as a true crime author named Carol Rothgeb, from her 

first request dated May 17, 1997, through her last request dated March 26, 1999, were able to 

obtain thousands of pages of documents, hundreds of crime scene photos, and more than a dozen 

audiotapes. (Id.) Respondent goes on to argue that since the publication of Rothbeb’s book 

entitled Hometown Killer in 2004, the essence of the documents that the Springfield Police 

Department provided to Petitioner in 2018 have been publicly available since 2004. (Id. at 

PageID 30744–48). 

 Whether the documents were available as early as May 17, 1997, does not answer the 

question of whether any were suppressed at the time of Petitioner’s trial. And whether the 

availability of the essence of the Springfield Police Department records as early as 2004 should 

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be held against Petitioner, insofar as he did not request them until 2018 and propose his new 

claims until 2020, is one of the primary questions that the discovery this Court prescribed is 

intended to shed light on, to wit: postconviction counsel’s performance. Petitioner was at the 

mercy of postconviction counsel. If the documents, or the information contained in the 

documents, were available in 2004, Petitioner cannot reasonably have been expected to be able 

to recognize and exercise his right to those documents. He was entitled to rely on his 

postconviction counsel during that time, and on habeas counsel once they were appointed. If, 

after discovery, it appears that postconviction counsel performed deficiently, that fact might 

militate in favor of equitably tolling the statute of limitations as to Petitioner’s proposed claims. 

And once habeas counsel were appointed, it appears (though the Court is not holding at this 

time) that action was taken in a reasonable amount of time to recognize and exercise Petitioner’s 

right to the documents. For these reasons, the Court is satisfied that Petitioner’s proposed Rule 

45 subpoena could facilitate the discovery this Court has already prescribed. 

Beyond the foregoing, as intimated during the October 13, 2020 discovery conference, 

the Rule 45 subpoena that Petitioner seeks to serve could also aid in honing, paring, or even 

withdrawal of one of Petitioner’s proposed claims. If, for example, it is established that the 

prosecution suppressed certain favorable, material documents, then any allegation that trial 

counsel were ineffective for failing to use those documents at trial set forth in proposed claim 

twenty arguably could be withdrawn. Concomitantly, if it is established that the prosecution did 

turn over certain favorable, material documents to trial counsel in discovery, then any allegation 

that the prosecution suppressed those documents set forth in proposed claim nineteen might be 

withdrawn. (ECF No. 72-1, at PageID 25764). This potential benefit also favors allowing 

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Petitioner to serve his proposed subpoena. 

IV. CONCLUSION 

 For the foregoing reasons, Petitioner’s Motion for Leave to File a Memorandum in 

Support of Request to Issue a Rule 45 Subpoena to the Clark County Prosecutor’s Office (ECF 

No. 72), and Request to Issue a Rule 45 Subpoena (ECF No. 72-1), are GRANTED. 

 In accordance with the Court’s January 12, 2021 Order Extending Deadlines (ECF No. 

84), the Court ORDERS the following: 

1. Petitioner shall have three (3) business days from the date of this order to 

serve his Rule 45 subpoena on the Clark County Prosecutor’s Office, with a 

certificate requiring the requested documents to be delivered within thirty (30) 

days; 

2. Within three (3) days after the receipt of the requested documents, 

Petitioner shall advise the Court of the volume of the documents provided and the 

amount of time Petitioner estimates he will need to review those documents in 

comparison to the documents he received from the Springfield Police Department; 

3. Following Petitioner’s advisement, the Court will promptly issue an order 

establishing a deadline for Petitioner to complete his review of the requested 

documents; 

4. The deposition of postconviction counsel David J. Graeff shall be 

completed no later than thirty (30) days from the deadline for Petitioner to 

complete his review of the requested documents; 

5. Within seven (7) days after the completion of Mr. Graeff’s deposition, the 

parties will either file a status report or seek a status conference with the Court to 

address (1) what further discovery may or may not be needed; and (2) whether or 

to what extent the “relation-back” doctrine applies to any parts of Petitioner’s 

proposed claims; and 

6. After the completion of this discovery, Petitioner shall have sixty (60) 

days to file his merit brief on the issue(s) set forth above; Respondent shall have 

sixty (60) days to file any response to Petitioner’s merit brief; and Petitioner shall 

have thirty (30) days to file any reply to Respondent’s response. 

IT IS SO ORDERED. 

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Date: February 17, 2021 /s/ Kimberly A. Jolson 

 KIMBERLY A. JOLSON 

 UNITED STATES MAGISTRATE JUDGE 

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