7a

On the basis of this evidence, Bivens seeks permission of the court, pursuant to
Rule 6 of the court rules governing habeas corpus petitions, to conduct additional
discovery. Specifically, Bivens requests leave to subpoena the production of: (1) certain
investigatory reports relating to the escape; (2) certain disciplinary and parole records
concerning the other detainees who participated in the escape; (8) the written
confession of Greer; and (4) the television taped interview of Hill upon his surrender.
Additionally, Bivens seeks to depose Daniels, Hill, and Greer, as well as Gary Ravitz,
Bivens’s trial counsel. Finally, Bivens wishes to inspect, either in camera or through
his counsel, the State’s files relating to Bivens’s escape trial, as well as the State’s files
relating to the escape convictions of Jerry Mahaffey, Daniels, Hill, and Greer. Bivens
argues that these documents, files, and individuals may provide key facts which, if
developed, would allow him to demonstrate that he is entitled to relief on his habeas
petition.

Respondent objects to the discovery motion, arguing first that Bivens’s
ineffective assistance of counsel claim is procedurally defaulted on the independent and
adequate state ground of waiver. Respondent next argues that, although Bivens has
asserted a claim of actual innocence that could serve as a gateway for having his
procedurally defaulted claim reviewed on the merits, the innocence claim is defective
as a matter of law because it is based on the legal defense of necessity and not factual
innocence. Finally, respondent insists that even if the court were to reach the merits
of Bivens’s actual innocence claim, it must fail because Bivens has not “demonstrated
innocence” convincingly enough to proceed any further with his habeas petition.

4


mandatory supervised release records of all five of the other escapees. Further, Bivens
seeks to depose the other detainees and his trial counsel.

Evidence obtained from these records and the testimony of critical witnesses —
none of which was presented at his trial or during post-conviction proceedings — could
by itself show that Bivens’s role in the escape was one of necessity and could also lead
to other exculpatory evidence proving Bivens’s innocence of the crimes of which he was
convicted. The court believes that the materials and testimony requested in Bivens’s
discovery motion are essential to his efforts to prove his innocence and the
constitutional violation — ineffective assistance of counsel — that caused his wrongful
conviction and incarceration. See, e.g., United States ex rel. Brisbon v. Gilmore, No.
95 C 5033, 1997 U.S. Dist. LEXIS 8314, at * 6-8 (N.D. Ill. June 5, 1997); United States
ex rel. Pecoraro v. Page, No. 97 C 5361, U.S. Dist. LEXIS 15746 (N.D. Ill. Sep. 21,
1998). Thus, the court concludes that Bivens has shown good cause for discovery in aid
of his habeas petition.”

III, CONCLUSION
Petitioner Aryules Bivens has established good cause for invoking the processes

of discovery available under the Federal Rules of Civil Procedure to obtain evidence in

? Respondent argues that even if the court rejects the procedural default
argument and finds good cause for discovery, Bivens’s request must be denied
because he does not satisfy the requirements of 28 U.S.C. § 2254(e)(2), which
governs requests for evidentiary hearings. See Boyko v. Parke, 259 F.3d 781, 790
(7th Cir. 2001). At this time, however, Bivens seeks only limited discovery and not
an evidentiary hearing. Though discovery may in some cases be used to achieve the
same end as an evidentiary hearing, see Boyko, 259 F.3d at 790, the court does not
believe this is such a case.


oe

eyewitness accounts, or critical physical evidence — that was not presented at trial,” id.
at 324, and also establish that “it was more likely than not that no reasonable juror
would have convicted him in light of the new evidence,” id. at 327.

In this case Bivens presents new reliable evidence concerning his innocence in
the form of affidavits from Daniels and Greer. As described above, Daniels avers that
he and Hill were the plan’s masterminds, and that Bivens took no part in planning the
escape. Daniels also states that he forced Bivens to participate because he and Hill
needed accomplices, and that he forced Bivens at gunpoint to put on the uniform of a
correctional officer at some point during the escape. According to Daniels, Bivens was
just in the wrong place at the wrong time. Similarly, Greer states that Bivens was
forced to escape at gunpoint and that he was under threat of death to participate in the
plan. Greer explains that Bivens was recruited for his knowledge of the Cook County
tunnel system and because the time Bivens was permitted to be out of his cell
corresponded to the time of the planned escape. Greer further avers that Bivens never
possessed any weapons on the night of the escape and never threatened, harmed, or
endangered the lives of any Cook County Jail staff on the night of the escape.

None of this exculpatory information was presented at trial, as Bivens’s lawyer
allegedly failed to investigate, interview, or procure testimony from any of the other
five escapees. Unlike in Gomez, where the new evidence introduced in the habeas
petition did not actually prove the petitioner’s theory of innocence, the new evidence
presented in this case directly support’s Bivens’s theory of innocence at trial — that he

acted out of compulsion and necessity in participating in the escape. Had the jury

6



II, Discussion

A, Procedural Default of Ineffective Assistance of Counsel Claim

Respondent argues that this court should deny Bivens’s request for discovery
because it is premised on claim of ineffective assistance of counsel that has been
procedurally defaulted in the Illinois state courts. In rejecting Bivens’s first collateral
attack, the appellate court found that he had waived his ineffective assistance of
counsel claim by not raising it on direct appeal. Under Illinois law, waiver “operates
as an adequate and independent state ground for barring federal habeas review of
[Bivens’s] ineffective assistance of counsel claim.” Gomez v. Jaimet, 350 F.3d 673, 678
(7th Cir. 2003). See also People v. Enoch, 122 Ill. 2d 176, 186 (1988). Thus, a federal
court entertaining a habeas petition cannot reach the merits of a procedurally
defaulted claim unless the petitioner demonstrates either (1) cause for and actual
prejudice from failing to raise the claim properly, or (2) that enforcing the default
would result in a “fundamental miscarriage of justice.” Wainwright v. Sykes, 433 U.S.
72, 87 (1977); Gomez, 350 F.3d at 679.

Here, Bivens does not argue cause and prejudice, but instead asserts that this
court must ignore the procedural default of his ineffective assistance of counsel claim
because he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (stating
that the fundamental miscarriage of justice exception applies only where “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent”). To state a colorable claim of actual innocence, a petitioner must offer “new

reliable evidence ~ whether it be exculpatory scientific evidence, trustworthy

5



of counsel claim are (1) that the trial attorney’s representation fell below an objective
standard of reasonableness, and (2) that but for the attorney’s errors, the outcome of
the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688-89
(1984). It is not necessary for Bivens to prove these elements at this time, but only to
show that discovery is necessary to uncover facts that would establish the claim.

With respect to the second step, good cause for discovery exists “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.” Bracy, 520
U.S. at 908-909 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). When the
possibility of such factual demonstration exists “it is the duty of the court to provide
the necessary facilities and procedures for an adequate inquiry.” Bracy, 520 U.S. at
908-09. The language of Rule 6(a) makes it clear that the scope and extent of such
discovery is a matter left to the discretion of the trial court. Id. at 909.

It appears in this case that Bivens can satisfy the good cause requirement for
discovery. Bivens has produced affidavits from two of the five other escapees which
provide evidence that Bivens unwillingly participated in the escape, that he did not
engage in the planning of the escape, and that he was forced at gunpoint to participate.
In his request for discovery Bivens seeks review of all investigatory reports relating to
the escape created and/or maintained by the Chicago Police Department, Cook County
Sheriffs Office, Illinois Department of Corrections, and the Federal Bureau of
Investigation. Bivens also seeks discovery of the Illinois Prisoner Review Board’s

records, the Department of Correction’s disciplinary records, and any or all parole or

8


Mimute Order Fosmn (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge

Joan B. Gottschall

Sitting Judge if Other

or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 7327 DATE 712712004
CASE Bivens vs. Briley
TITLE
{In the followingbox (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)

Petitioner’s Motion for Leave to Conduct Discovery in Aid of His Habeas Petition [46-1]

DOCKET ENTRY:

qd) Oo Filed motion of { use listing in “Motion” box above,]

(2) Oo Brief in support of motion due

(3) QO Answer brief to motion due . Reply to answer brief due.

(4) Oo Ruling/Hearing on set for at

(5) i) Status hearing[held/continued to] [set for/re-set for] on set for at

(6) im} Pretrial conference[held/continued to] [set for/re-set for] on __ set for __at :

) Oo Trial{set for/re-set for] on at

(8) im) [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) ClLocal Rule 41.1 OFRCP41(a\(1) CO FRCP41(a)(2).

cn _| [Other docket entry] Enter Order. For the reasons stated in the attached memorandum
opinion and order, petitioner’s motion for leave to conduct discovery in aid of his habeas
petition [46-1] is granted. The parties are ordered to appear for a status hearing at 9:30 a.m. on
August 18, 2004, to set a schedule for discovery and discuss briefing on the issue of actual
innocence.

(1) @ [For further detail see order attached to the original minute order.]

No notices required.

Notices maited by judge’s staff,

Notified counsel by telephone.

X_ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

RJ/KB

No notices required, advised in open court.

Renda Loeisia “son

Ge VAL O02

imelreceived in
ferk’s Office

ty
Loa |

date miiled notice

mailing deputy initials



i

4 support of his habeas corpus petition. Thus, petitioner’s motion for leave to conduct

discovery is granted.

ENTER:

Le

OAN B, GOTTSCHALL
nited States District Judge

DATED: July 27, 2004

10


heard this evidence at trial, it is more likely than not that they would not have
convicted Bivens. The court therefore believes that the evidence, which was never
presented to the trier of fact, is strong enough to establish Bivens’s innocence for the
purpose of overcoming the procedural default and reaching the merits of his
constitutional claims.*
B. Rule 6 Discovery
The rule governing discovery in habeas corpus cases is Rule 6(a), which 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 discretion
and for good cause grants leave to do so.
To determine whether Bivens is entitled to discovery, the court must identify the
“essential elements” of Bivens’s constitutional claim and find “good cause” for the
discovery. Bracy v. Gramley, 520 U.S. 899, 904 (1997). The first step is easily satisfied

here, for Bivens’s assertion of actual innocence is based on the constitutional claim of

ineffective assistance of counsel. The essential elements of an ineffective assistance

' Respondent argues that Bivens cannot overcome the procedural default
because his innocence claim is based on the affirmative defense of legal and not
factual innocence. The Seventh Circuit has not addressed this distinction in the
context of the necessity defense, but has suggested that the affirmative defense of
insanity could be used to support a claim of actual innocence. See Britz v. Cowan,
192 F.3d 1101, 1103 (7th Cir. 1999). Accord Jaramillo v. Stewart, 340 F.3d 877, 883
(9th Cir. 2003) (evidence of self-defense considered to support actual innocence
claim); Finley v. Johnson, 243 F.3d 215, 220-21 (5th Cir. 2001) (evidence of
necessity considered to support actual innocence claim). But see Beavers v. Saffle,
216 F.3d 918, 923 (10th Cir. 2000) (evidence of affirmative defenses not considered
to support actual innocence claim). The defense of compulsion or necessity is similar
enough to insanity that this court will follow the lead of Britz until a more definitive
ruling on the issue is handed down.



Court in December of 1999. This habeas petition, brought pursuant to 28 U.S.C.
§ 2254, followed in November of 2000.

In his petition Bivens advances five grounds to support his claim that he is being
unlawfully held. His first and third contentions are that he was denied effective
assistance of trial counsel because his lawyer failed to adequately investigate his case,
resulting in his failure to call exculpatory witnesses such as the other detainees who
planned and participated in the escape. His second contention is that the trial court
erred by refusing to instruct the jury on his necessity defense, and his fourth and fifth
contentions relate to the treatment and prosecution of his post-conviction requests for
relief.

Bivens supports his petition by attaching his own affidavit attesting to his
innocence of the crimes charged and the affidavits of Daniels and Greer. Daniels
admits in his affidavit that he orchestrated and led the escape, engaged Bivens in the
escape because Daniels needed help from other detainees to carry out his plan, and
forced Bivens at gunpoint to put on the uniform of a Cook County Correctional Officer
to facilitate the escape. Daniels also states that Bivens “just happenf[ed] to be in the
wrong place at the wrong time.” Greer avers that Bivens was forced at gunpoint to
participate because of his knowledge of the jail’s tunnels and because Bivens’s allotted
time out of his cell corresponded to the time of the planned escape. Greer offers further
that “at no time did Aryules Bivens threaten, harm, or endanger the lives of any Cook

County staff on the night of this escape.”


I, BACKGROUND

Following a jury trial in Illinois state court Aryules Bivens was convicted of one
count ofescape, one count of possession ofa stolen vehicle, ten counts of armed robbery,
and five counts of unlawful restraint stemming from a successful escape attempt from
the Cook County Jail on March 28, 1984. Five other detainees participated in the
escape, Reginald Mahaffey, Jerry Mahaffey, Brian Daniels, Raymond Greer, and
Gregory Hill. All of the escapees were apprehended, including Hill, who surrendered
to a television news reporter, and all five pleaded guilty to the escape.

Bivens's defense at trial was that he was forced to cooperate and escape with the
others because of his knowledge of the tunnel system within the jail. He claimed that
he was forced at gunpoint to participate, and that he feared reprisal from the other
escapees if he did not cooperate with them and from the prison guards if he stayed
behind. The jury convicted Bivens of all counts without hearing testimony from any
of the other escapees, none of whom were called by the defense to testify at trial. Save
for possession of a stolen vehicle, all of Bivens’s convictions were upheld on direct
appeal.

Bivens’s first collateral attack on his convictions in the Illinois state courts
concluded unsuccessfully in October of 1998, In denying Bivens’s motion for relief, the
appellate court found that Bivens had waived his claim of ineffective assistance of
counsel by failing to raise it in his direct appeal. Bivens then mounted a second
collateral attack in the state courts, which was deemed improperly successive by the
Illinois Court of Appeals, and he was denied leave to appeal to the Illinois Supreme

2


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Pa)
, Oey
ARYULES BIVENS, U.S.A.ex rel, ) “@ © ia
“2S
Petitioner, ) 3B 'S
) &
v. ) Case No. 00-C-7327
) Judge Joan B. Gottschall
KENNETH R. BRILEY, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Aryules Bivens filed his petition for a writ of habeas corpus in this
court contesting his incarceration at the Stateville Correctional Center in Joliet,
Illinois, which is based on his allegedly willing participation in an escape from Cook
County Jail in 1984. Bivens contends that he is actually innocent of the crimes for
which he was convicted and asserts that his unlawful detention is the result of, inter
alia, ineffective assistance of trial counsel. On August 1, 2002, this court held that
Bivens’s petition was timely under the rule articulated in United States ex rel. Smith
v. Walls, 276 F.3d 340, 342 (7th Cir. 2002), and instructed respondent to answer or
otherwise plead within 20 days. In response to the state’s answer, which asserted that
Bivens’s claims were either procedurally defaulted or non-cognizable for purposes of
federal habeas review, petitioner filed a motion to strike which was denied by the court
in its order dated February 4, 2003. While the motion to strike was pending, petitioner
filed the instant motion for leave to conduct discovery in order to obtain evidence in

support of his habeas petition. For the reasons that follow, Bivens’s motion is granted.

x