permitted to testify about what Randall stated to him that evening. Another FBI Agent, Agent Kacoyannakis, testified that during the conversation with Randall that evening. Randall was slurring his words and may have had something to drink.
C. Petitioner's Grounds For His 28 U.S.C. § 2255 Motion
Bontkowski claims several problems with the witness intimidation incident. First, he claims that the trial judge should have known she was authorized and should have ordered Randall to obtain a psychiatric evaluation revealing his alleged Korsakoff's Psychosis because his statements to the FBI indicate the presence of confabulation, an alcohol-related phenomenon. Second, the government violated an order of the court requiring it to produce all discovery materials to Bontkowski's trial attorney that it had provided to Bontkowski's previous attorneys. Specifically, he alleges that the FBI-302 report and the Bloomingdale Police reports are exculpatory evidence that were not provided to his trial counsel by the government. Third, Bontkowski alleges that the government suborned perjury by knowingly using the perjured testimony of Agent Smith who stated that he called the Bloomingdale police at 8:40 p.m. January 23, 1998. — not at 9:20 p.m. Fourth, the government asked leading questions of Randall on direct examination, over defense objections, which led to his statements that he was threatened and spoke with the FBI agents on the evening of January 23, 1998. Fifth, after Randall testified that he was in fact afraid of Bontkowski and defense counsel asked if Bontkowski had ever beat him up or shot him, the trial judge, in error, permitted the government to ask Randall about a time in which he witnessed Bontkowski beat up another man with a two-by-four because defense questions opened the door to this evidence. The admission of this evidence was in violation of Federal Rule of Evidence 404(b). Sixth, the trial judge erred in allowing Agent Smith to testify to what Randall stated to him on January 23, 1998, bolstering Randall's credibility over defense objections and under Federal Rule of Evidence 801(d)(1)(B). Seventh, Agent Smith was permitted to "vouch" for Randall's credibility by offering his personal beliefs about Randall's credibility.
Review of § 2255 and related motions is of significant importance as "[t]here is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that . . . he is deprived of his freedom contrary to law." Harris v. Nelson, 394 U.S. 286, 292 (1969).
A § 2255 petitioner is not permitted discovery as a matter of course as in ordinary civil litigation. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, "[a] party may invoke the processes of discovery available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure or elsewhere in the usages and principles of law 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. 6(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Good cause will be found 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 908-09 (quoting Harris, 394 U.S. at 300); Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir. 1983) (applying the similarly worded Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts). The decision to grant discovery is left to the sound discretion of the district court, but a blanket denial is an abuse of discretion if the discovery is "indispensable to a fair, rounded, development of the material facts." United States ex rel. Shores v. Warden, Pontiac Corr. Ctr., No. 95 C 3932, 1996 WL 341390, at *7 (N.D. ILL. June 18, 1996) (internal quotations omitted) (quoting East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995)).
In this case, the government urges that there is no good cause to allow discovery because Bontkowski's claims are procedurally barred due to his failure to raise these issues on direct appeal. Bontkowski responds that although he failed to appeal, his § 2255 motion is not procedurally barred because there has been a fundamental miscarriage of justice. The Court will first address the procedural bar issue.
A. Bontkowski Is Procedurally Barred From Raising His Claim For The First
Time In His § 2255 Motion.