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U.S. EX REL. BLANKENSHIP v. CIRCUIT COURT OF COOK

August 5, 1999

UNITED STATES EX REL. ALEX BLANKENSHIP, PETITIONER,
v.
CIRCUIT COURT OF COOK COUNTY & ATTORNEY GENERAL OF THE STATE OF ILLINOIS, RESPONDENTS.



The opinion of the court was delivered by: Alesia, District Judge.

  MEMORANDUM OPINION AND ORDER

Before the court are petitioner Alex Blankenship's (1) motion for limited discovery pursuant to Rule 6 of the Rules Governing § 2254 Cases in the United States District Courts and (2) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the court denies petitioner's Rule 6 motion and § 2254 petition and dismisses this action with prejudice.

I. BACKGROUND

Following a stipulated bench trial, petitioner Alex Blankenship ("Blankenship") was convicted in state court of one count of possession of a controlled substance with intent to deliver. On November 30, 1989, the Circuit Court of Cook County sentenced Blankenship to a six-year term of imprisonment.

Blankenship appealed his conviction, arguing that the circuit court erred in denying the motion to quash his arrest and motion to suppress evidence. (Resp't Answer Ex. A.) The Appellate Court of Illinois reversed Blankenship's conviction. (Id.) The Supreme Court of Illinois, however, reversed the appellate court's decision and reinstated the original conviction. (Resp't Answer Ex. B.)

On August 6, 1993, Blankenship filed in state court an amended petition for post-conviction relief pursuant to 725 ILL.COMP. STAT. § 5/122-1. Blankenship raised one issue in his post-conviction petition, which was whether the State of Illinois denied him due process of law by failing to comply with a cooperation agreement that Blankenship claimed the State had entered into with him. According to Blankenship, (1) the parties agreed that if Blankenship's cooperation with the State resulted in the consummation of three small drug transactions or one major transaction, then Blankenship would not receive jail time in his pending criminal charge and (2) he performed his obligations under the agreement by delivering to the federal government eight individuals involved in a Chicago-based cocaine conspiracy. After a full evidentiary hearing, the circuit court found that the State had terminated any attempt at an agreement with Blankenship, and he and his attorney were told as such in "no uncertain terms," before he went to trial, before he performed his end of the agreement, and before he started working with the federal authorities. (Resp't Ex. G. Vol. VI at 37-40.) Finding as such, the circuit court determined that it could not enforce an agreement that did not exist and, thus, denied Blankenship's post-conviction petition on its merits. (Id.)

Blankenship appealed to the Appellate Court of Illinois. The appellate court affirmed the circuit court's denial of his post-conviction petition. The appellate court identified the constitutional issue as being whether Blankenship's due process rights were violated. Addressing this issue, the appellate court found that (1) the threshold question on appeal was whether an enforceable agreement existed between Blankenship and the State; (2) the State was free to withdraw from the alleged agreement prior to Blankenship's performance or surrender of a constitutional right; and (3) Blankenship had failed to show that the circuit court's determination that there was no agreement at the time that Blankenship went to trial was contrary to the manifest weight of the evidence or an abuse of discretion. (Resp't Ex. D at 12-15.) Finding as such, the appellate court affirmed the circuit court's judgment. (Id. at 15.)

On November 6, 1998, Blankenship filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, claiming that his sentence of imprisonment is unconstitutional because the State of Illinois deprived him of due process of law by failing to honor the cooperation agreement. In conjunction with his § 2254 petition, Blankenship filed a motion for limited discovery pursuant to Rule 6 of the Rules Governing § 2254 Cases in the United States District Courts. The court addresses petitioner's Rule 6 motion and § 2254 petition below.

II. DISCUSSION

A. Blankenship's motion for limited discovery under Rule 6

Blankenship has filed a motion for limited discovery pursuant to Rule 6 of the Rules Governing § 2254 Cases in the United States District Courts. In his motion, Blankenship requests leave to take the discovery deposition of Sergeant Pat Darcy of the Chicago Police Department. In support of his request, Blankenship states that he "believes that the deposition will lead to relevant information concerning the reasons the State of Illinois did not want to work with Petitioner and the identify [sic] of those individuals responsible for the instructions to . . . cease working with Petitioner." (Pet'r Mot. for Limited Disc. ¶ 6.)

Unlike other civil litigants, a habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Harris v. Nelson, 394 U.S. 286, 295, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). In pertinent part, Rule 6(a) of the Rules Governing § 2254 Cases in the United States District Courts 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 shown grants leave to do so, but not otherwise." R. GOVERNING § 2254 CASES IN THE U.S.DIST. CTS. 6(a). Thus, in order for discovery to be granted in a habeas case, the petitioner must show good cause. Bracy, 520 U.S. at 904, 908, 117 S.Ct. 1793; United States ex rel. Madej v. Gilmore, No. 98 C 1866, 1999 WL 182150, at *1 (N.D.Ill. Mar.24, 1999). "Good cause" is shown "[w]here 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. . . ." Id. (quoting Harris, 394 U.S. at 299, 89 S.Ct. 1082); see also Gibbs v. Johnson, 154 F.3d 253, 258 (5th Cir. 1998) (explaining that Harris led to the adoption of Rule 6 and Rule 6 is intended to be consistent with Harris). A habeas petitioner may not use discovery for "fishing expeditions to investigate mere speculation." Calderon v. U.S. Dist. Ct. for the N.D.Cal., 98 F.3d 1102, 1106 (9th Cir. 1996); see also Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).

The court finds that Blankenship has not shown "good cause" to take the deposition of Sergeant Darcy for three main reasons. First, under the facts of this case, the court finds that the State's reasons for not wanting to work with Blankenship are irrelevant to the court's analysis of the merits of Blankenship's constitutional claim. Second, Blankenship's allegation that he "believes" Sergeant Darcy has information related to the State's reasons is not sufficiently specific to warrant a finding of "good cause." Finally, it is undisputed that Blankenship's attorneys already had the opportunity to fully cross-examine Sergeant Darcy at the evidentiary hearing on Blankenship's post-conviction petition.

First, the State's reasons for not wanting to work with Blankenship are irrelevant to this court's analysis of the merits of Blankenship's constitutional claim. The ultimate resolution of Blankenship's due process claim hinges on whether there is a clearly established rule of federal law, as determined by the Supreme Court of the United States, that the State was not free to terminate or withdraw from the cooperation agreement. See infra Part II.C.2. For the reasons given in Part II.C.2, the court finds that there is no such clearly established rule of federal law and, thus, that Blankenship's petition should be denied. Accordingly, the court finds that the State's reasons for not wanting to work with Blankenship are irrelevant to this court's disposition of his § 2254 petition.

Moreover, even if the State's reasons were relevant to this court's analysis of the merits of Blankenship's constitutional claim, the court finds that Blankenship has failed to make the requisite "specific allegations" to support a finding of "good cause." In his motion, Blankenship states only that he "believes that the deposition will lead to relevant information concerning the reasons the State of Illinois did not want to work with Petitioner and the identify [sic] of those individuals responsible for the instructions to . . . cease working with Petitioner." (Pet'r Mot. for Limited Disc. ¶ 6 (emphasis added).) Blankenship gives no reason why he "believes" Sergeant Darcy would have such information. He has offered no evidence on the basis for his belief. There is nothing in the record that indicates that Sergeant Darcy possesses such information. Thus, Blankenship's allegations fall short of the requisite "specific allegations" needed to establish "good cause."

Finally, it is undisputed that Sergeant Darcy was a witness at the evidentiary hearing held on Blankenship's post-conviction petition. Blankenship's post-conviction petition raised exactly the same issue that has been raised in this § 2254 petition: whether the State violated Blankenship's right to due process by not honoring the cooperation agreement. Attorneys Terry Sullivan and Nancy Nicol represented Blankenship at the evidentiary hearing. After the direct examination of Sergeant Darcy, Sullivan conducted the cross-examination of Sergeant Darcy, the transcript of which is twenty-seven pages long. With respect to this cross-examination, respondent states:

  What is not mentioned in petitioner's motion [for
  limited discovery] is that Sergeant Darcy gave
  extensive testimony at the post-conviction hearing.
  Such testimony included the very facts and issues
  that the petitioner wishes to depose Sergeant Darcy
  regarding now. Petitioner's counsel questioned him at
  length, at the hearing, and excused him when he ran
  out of questions. There is no legal reason that
  petitioner should be given a second chance to
  question Sergeant Darcy. No limitations were placed
  on the previous testimony, and it is obvious that
  petitioner is seeking the same information he
  received or could have received previously.

(Resp't Resp. to Mot. for Limited Disc. ¶ 4 (internal citations omitted).) Blankenship did not respond to respondent's position even though he was given the chance.

The court agrees with respondent's position. Sullivan conducted the cross-examination of Sergeant Darcy and was not prevented from questioning Sergeant Darcy about the State's reasons for not wanting to work with Blankenship or who it was that gave the orders not to work with Blankenship. Blankenship has given no reason, let alone a good reason, why he should be allowed to take the deposition of Sergeant Darcy after his attorney was allowed to fully cross-examine Sergeant Darcy at the evidentiary hearing. Accordingly, the fact that Blankenship's attorney has already had the opportunity to fully question Sergeant Darcy on the record and under oath counsels against Blankenship being allowed to take the deposition.

For the foregoing reasons, the court finds that Blankenship has failed to show "good cause" to take the deposition of Sergeant Darcy. Blankenship has failed to show that his request amounts to anything more than a fishing expedition. ...


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