IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ASKIA HILL,

Petitioner,

v.

BLAINE LAFLER, WARDEN,

Respondent.

Case No. 5:08-CV-14102

Judge Peter C. Economus, 

By Designation

OPINION AND ORDER

Petitioner, a prisoner convicted and sentenced in Michigan state court, has pending before 

this Court1

Petitioner seeks leave to conduct discovery upon what he describes as “recently 

discovered” evidence regarding the alleged perjury of a witness at his 2004 trial. He asserts that 

Jermaine Davenport testified at trial that he, Davenport, was no longer dealing drugs. Petitioner 

claims that “new information” in the form of Davenport’s 2008 indictment and conviction

a habeas corpus action pursuant to 28 U.S.C. ' 2254. This matter is before the Court 

upon Petitioner’s second Motion for Leave to Conduct Discovery. (E.D. Mich. Doc. # 18.) 

Respondent did not file a response. 

2

 

1 Pursuant to Title 28, United States Code, ' 292(b), Chief Judge Alice M. Batchelder designated and 

assigned Judge Peter C. Economus to hear this case. (See Designation, docs. # 16 and 17.)

of 

drug dealing undermines that trial testimony. (Motion, pages 2 – 3.) “The prosecutor in opening 

statement and closing argument [at Petitioner’s trial] put the weight of the state behind 

Davenport’s claim that he was no longer dealing drugs.” (Id., page 2.) “The question whether 

Davenport was still involved in drug dealing was material to the case and went directly to 

Davenport’s credibility as a witness.” (Id.) Petitioner seeks discovery of the “entire file” 

relating to United States v. Jermaine Davenport, E.D. Mich. Case No. 5:08-CR-20123.

2 For the purpose of this Order, the Court takes judicial notice of the indictment and judgment, timestamped copies of which are attached to Petitioner’s motion. 

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A habeas corpus petitioner is not entitled to discovery as of right. Bracy v. Gramley, 117 

S.Ct. 1793, 1796-97 (1997); Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). Under the 

provisions of Rule 6(a), Rules Governing Section 2254 Proceedings in the United States District 

Court, 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, 299 (1969), quoted in Bracy v. Gramley, 117 S.Ct. at 1799; 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. Rule 7, Rules 

Governing Section 2254 Cases, further limits discovery, allowing only the “addition of records 

which are relevant to the merits of a habeas corpus petition.” 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). See, Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992) (Requiring a showing of 

cause for the failure to develop the facts in the state court and the resulting prejudice if the 

discovery is not permitted in federal court). 

In order to determine whether Petitioner is entitled to conduct discovery, the Court must 

identify the essential elements of the claim that the discovery purports to support. Here, though, 

Petitioner states that this newly discovered information “underscores [his] theory” that “Jermaine 

Davenport committed the murder” for which Petitioner was convicted. (Motion, page 5.) This 

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claim does not form the basis for relief in his habeas petition. (See Petition, Doc. #1, pages 8 –

9.) As a result, the requested discovery is not warranted. 

Even if the discovery were related to Petitioner’s habeas claims, the result would be the 

same. Significantly, Davenport was not indicted until four years after Petitioner’s trial for 

criminal activity that took place in 2006 through 2007—one to two years after the trial. 

Therefore, there is no connection between Davenport’s 2004 testimony and his 2008 indictment. 

In addition, Davenport may have been telling the truth in 2004 when he testified that he was “no 

longer in the street life.” There is no evidence before the Court to believe otherwise and, without 

more, Petitioner’s allegation that Davenport’s testimony was untruthful is merely speculative. 

Last, Davenport’s involvement in drug dealing was already before the jury. To the extent 

that Petitioner seeks to add information about Davenport’s apparent return to drug dealing to 

undermine Davenport’s credibility as a witness, federal habeas courts may not “redetermine 

credibility of witnesses whose demeanor has been observed by the state trial court[.]” Marshall 

v. Lonberger, 459 U.S. 422, 434 (1983). 

Petitioner has not made an adequate showing of good cause for the requested discovery. 

Accordingly, IT IS ORDERED that Petitioner’s Motion for Leave to Conduct Discovery (doc. # 

18) is DENIED.

UNITED STATES DISTRICT JUDGE

/s/ Peter C. Economus - March 9, 2012

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