UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN ALLEN THOMASON, #376662,

Petitioner,

Civil No: 2:09-11012

Honorable Gerald E. Rosen

Magistrate Judge Donald A. Scheer

v.

NICK LUDWICK,

Respondent.

_________________________________/

OPINION AND ORDER REGARDING VARIOUS PENDING MOTIONS

This matter is before the Court on eleven motions filed by Petitioner. No responses

have been filed with the Court. Pursuant to E.D. Mich. LR 7.1(e)(2), the Court will decide

the motions without oral argument. 

Petitioner was convicted in Oakland County Circuit Court of second-degree criminal

sexual conduct, Mich. Comp. Laws §750.520c(1)(a). He was sentenced to four years nine

months to fifteen years’ imprisonment. The Court addresses each of Petitioner’s motions

below.

I. DISCUSSION

1. Discovery Motion 

“A habeas petitioner, unlike the usual civil litigant, is not entitled to discovery as a

matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, a habeas

petitioner is entitled to discovery only if the district judge “in the exercise of his discretion

and for good cause shown grants leave” to conduct discovery. Rule 6 Governing Section

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Petitioner prefaces each motion with the phrase “motion for immediate

consideration.”

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2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. To establish “good

cause” for discovery, a habeas petitioner must establish that the requested discovery will

develop facts which will enable him or her to demonstrate that he or she is entitled to

habeas relief. See Bracy, 520 U.S. at 908-09. The burden is on the petitioner to establish

the materiality of the requested discovery. See Stanford v. Parker, 266 F. 3d 442, 460 (6th

Cir. 2001).

Petitioner filed his habeas petition on March 18, 2009. After deficiencies with the

habeas petition were corrected, on June 9, 2009, Magistrate Judge R. Steven Whalen

signed an order of responsive pleading, requiring respondent to file an answer to the

petition for writ of habeas corpus and the Rule 5 materials by December 9, 2009.

Respondent has not yet filed an answer to the petition for writ of habeas corpus. Until a

respondent files an answer to the habeas petition, “it is impossible to evaluate what, if any,

discovery is needed and whether the discovery is relevant and appropriately narrow.”

Gengler v. United States ex rel. Dept. of Defense & Navy, 463 F. Supp. 2d 1085, 1114-15

(E.D. Cal. 2006); See also Shaw v. White, No. 2007 WL 2752372, * 3 (E.D. Mich.

September 21, 2007). In addition, none of the Rule 5 materials have been received by the

Court; “and receipt of those materials may obviate the need to order discovery.” Shaw, No.

2007 WL 2752372, at * 3. Granting Petitioner’s discovery request at this time would be

premature. Therefore, the motion for discovery will be denied without prejudice. Id.

2. Consideration of Motions and Petition

Petitioner is asking the Court to immediately1

 address the myriad of motions he has

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filed with the Court and to do so in the order in which they were presented. The purpose

of this Order is to achieve that objective. Therefore, Petitioner’s various requests for

“immediate consideration” are granted only with regard to Petitioner’s motions. The Court

will not immediately consider the habeas petition itself for the reasons stated above.

3. Recognizance Bond

Petitioner argues that he is uneducated and does not have adequate assistance to

litigate this habeas matter. Therefore, he contends that he should be released on bail so

that he may have the opportunity to gather evidence, utilize research resources, locate an

attorney, and seek any other legal assistance he may need to proceed with this matter. 

To receive bond pending a decision on the merits of a habeas corpus petition, a

petitioner must show a substantial claim of law based on the facts and exceptional

circumstances justifying special treatment in the interest of justice. Lee v. Jabe, 989 F.2d

869, 871 (6th Cir. 1993)(quoting Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)). There

will be few occasions where a habeas petitioner meets this standard. Dotson, 900 F.2d at

79. Federal district courts may grant bail when granting the writ. Sizemore v. District Court,

735 F.2d 204, 208 (6th Cir. 1984). By implication, the Court should not grant bail under

other circumstances. 

Although Petitioner may have a substantial claim of law, he has not demonstrated

exceptional circumstances that justify release on bond. Petitioner has failed to show the

existence of exceptional circumstances warranting release on bail where all that supports

his claim for release on bond are his conclusory statements regarding the merits of his

claim and his purported inability to move forward with his habeas claim. Bergmann v.

McCaughtry, 857 F. Supp. 640, 641 (E.D. Wis. 1994). The Court will therefore deny

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Petitioner’s motion for bond.

4. Prosecutorial Misconduct

Petitioner requests that the Court reverse his conviction due to allegations of

prosecutorial misconduct during his trial. Specifically, Petitioner lists twenty-two instances

of prosecutorial misconduct, which the Court will not list here. Because: (1) the

Respondent has not filed a response to Petitioner’s habeas petition, nor is one due at this

time; and (2) the Rule 5 materials have not been filed with the Court, and they are likewise

not due for filing at this time, the Court is not in a position to rule upon the substantive issue

of whether the prosecutor engaged in misconduct and if that alleged misconduct resulted

in a violation of Petitioner’s due process rights. Additionally, the Court notes that several

pages of Petitioner’s motion cannot be reviewed due to the poor quality of the original copy.

In any event, the motion is premature and is denied.

5. Trial Court Misconduct 

Petitioner generally contends that the trial court abused its discretion,

“compromis[ed] the integrity of justice,” “compromis[ed] the verdict,” and engaged in

“flagrant abuses of judicial propriety and fairness.” (Mot. at 1-2). Again, this is a

substantive issue that the Court is not in a position to rule upon without the record and

without a response from the Respondent. The motion is denied.

6. External Influences

Petitioner asserts that a combination of the trial court’s

“apathy/ignorance/misconduct,” ineffective assistance of counsel, and a biased jury,

constitutes a series of external influences which adversely impacted the outcome of

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Petitioner’s trial and resulted in a violation of his constitutional rights. Therefore, he claims

that his conviction should be reversed. This is a cumulative error argument, which the

Court is not in a position to rule upon without the record and without a response from the

Respondent. The motion is denied.

7. Jury Instructions

Petitioner contends that his conviction should reversed due to errors arising from the

administration of jury instructions in this case. He claims that his due process rights were

violated because the instructions “were erroneous, incomplete, and biased.” (Mot. at 5).

Again, this is a substantive issue that the Court is not in a position to rule upon 

without the record and without a response from the Respondent. Accordingly, the motion

is denied.

8. Ineffective Assistance of Counsel

Petitioner claims that his attorney was ineffective for several reasons: (1) ill-prepared

to represent Petitioner at trial; (2) failed to file pre-trial motions; (3) failed to place proper

objections on the record; (4) failed to conduct a proper investigation; (5) failed to conduct

requisite interviews of witnesses; (6) failed to present a proper defense; and (7) overall

ineptitude. Again, this is a substantive issue that the Court is not in a position to rule upon

without the record and without a response from the Respondent. Accordingly, the motion

is denied.

9. Evidentiary Hearing 

Petitioner asks the Court to conduct an evidentiary hearing because one was not

conducted during his trial. He asserts that he has relevant facts and dispositive issues

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which must be presented during an evidentiary hearing. Petitioner’s request for evidentiary

hearing is premature. Rule 8 of the Rules Governing 2254 Cases in the United States

District Courts states, in pertinent part: 

If the petition is not dismissed at a previous stage in the proceeding, the

judge, after the answer and the transcript and record of state court

proceedings are filed, shall, upon review of those proceedings and of the

expanded record, if any, determine whether an evidentiary hearing is

required.

Respondent has not yet filed the state court records or an answer to the habeas

petition and the current deadline for a response is not until December 9, 2009. Accordingly,

the Court will deny without prejudice Petitioner’s motion for an evidentiary hearing. If, after

reviewing Respondent’s answer to the petition and the state court record, the Court finds

that an evidentiary hearing is required, the Court will reconsider Petitioner’s request.

Petitioner need not file an additional motion regarding these issues.

10. Subject Matter Jurisdiction and Venue

Petitioner challenges the jurisdiction and venue of the trial court over the issuance

of the warrant, the filing of the complaint, the conducting of the preliminary examination,

and the arraignment proceedings. He claims that the substance of the warrant and

complaint were so flawed that the trial court should have ceded jurisdiction and dismissed

this matter from the outset. This is a procedural issue with substantive overtones which the

Court is not in a position to rule upon without the record and without a response from the

Respondent. Accordingly, the motion is denied.

11. Mandamus Action

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Finally, Petitioner requests that the Court invoke its “mandamus authority” in order

to compel Respondent to produce discovery materials. For the reasons previously stated,

Petitioner’s request for discovery materials is premature and is denied. 

Addressing Petitioner’s mandamus argument as a means to obtain the requested

discovery, mandamus relief is available when the petitioner has a clear right to the relief

sought. In re First Fed. Sav. & Loan Ass’n of Durham, 860 F2d 135, 138 (4th Cir. 1988).

Mandamus relief is a drastic remedy to be provided only in extraordinary circumstances.

See Kerr v. United States, 426 U.S. 394, 402 (1976). Specifically, mandamus relief is

appropriate only if the petitioner shows that his right to relief is “clear and indisputable,” and

that there exist “no other adequate means to attain the relief he desires.” Allied Chem.

Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). Since, at this point in the proceedings, for

the reasons set forth above, Petitioner does not have a “clear and undisputable” right to

receive discovery material from the Respondent, the Court concludes that mandamus relief

is inappropriate and denies the motion on this ground as well. 

II. CONCLUSION

Accordingly,

IT IS ORDERED that: (1) Petitioner’s “Motion for Immediate Consideration and

Combined Motions for to Compel Production and Delivery of State Records, and for

Discovery” [DKT. #2] is DENIED; (2) “First Motion: Proposal for Consideration of Motions

and Petition” [DKT. #9] is GRANTED; “Motion for Immediate Consideration and Motion

for Recognizance Bond” [DKT. #10] is DENIED; “Motion for Immediate Consideration and

Motion for Reversal Where Cause was Prosecutorial Misconduct” [DKT. #12] is DENIED;

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“Motion for Immediate Consideration and Motion for Reversal Where Cause was Court

Misconduct and Abuse of Discretion” [DKT. #13] is DENIED; “Motion for Immediate

Consideration and Motion for Habeas Recognition of Reversible Prejudice from External

Influences” [DKT. #14] is DENIED; “Motion for Reversal on Matters of Jury Instruction

Habeas Errors” [DKT. #15] is DENIED; “Motion for Reversal Where Cause was Ineffective

Assistance of Counsel” [DKT. #16] is DENIED; “Motion for Immediate Consideration and

Motion for Evidentiary Hearing” [DKT. #17] is DENIED; “Motion for Immediate

Consideration and Motion for Dismissal of Cause of Action Based on Subject Matter

Jurisdiction and Venue (Impossibility)” [DKT. #18] is DENIED; and “Ex Parte Motion for

Mandamus Action” [DKT. #21] is DENIED.

IT IS FURTHER ORDERED that Petitioner submit either a completely legible copy

of his habeas petition, or in the alternative, provide the Court with legible copies of the

pages that are not decipherable (Pet. pp. 2-12, 24-25, 27, 29; page prior to F1A; F1A

section; F1B section; F1H section; F1J section; F1K section; F1Q section; and F1S section)

on or before, December 9, 2009. 

SO ORDERED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: June 19, 2009

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CERTIFICATE OF SERVICE

I hereby certify that on June 19, 2009 , I electronically filed the foregoing paper with the Clerk

of the Court using the ECF system and I hereby certify that I have mailed by United States Postal

Service the paper to the following non-ECF participants:

 Steven Thomason, #376662, Mid Michigan Correctional Facility, 8201 N. Croswell Road, St.

Louis, Michigan 48880 .

s/Ruth A. Brissaud 

Ruth A. Brissaud, Case Manager

(313) 234-5137

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