United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Petitioner Triandus Tabb is currently serving a twelve-year sentence for attempted first-degree murder in addition to a four-year consecutive sentence for attempted aggravated vehicular hijacking. Tabb seeks a writ of habeas corpus against the Menard Correctional Center Warden, Rick Harrington, pursuant to 28 U.S.C. § 2254. Before the Court is Tabb's Petition for a Writ of Habeas Corpus in which he raises four grounds for relief: (1) the state violated petitioner's constitutional rights by withholding exculpatory evidence; (2) the state destroyed evidence in bad faith that could potentially exonerate the petitioner; (3) the state violated petitioner's rights by destroying evidence in bad faith; and (4) absent these Constitutional violations, petitioner would have established his innocence. Petitioner filed a Motion for Discovery, Expansion of the Record, and an Evidentiary Hearing  pursuant to the Rules Governing Section 2254 cases in the United States District Courts. That Motion is granted in part and denied in part.
The factual findings of a state trial or appellate court are presumed true in a federal habeas proceeding unless the petitioner can rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The petitioner has not challenged the appellate court's summary of facts. Accordingly, the following facts are drawn from the appellate court's opinions.
On September 6, 2003, at approximately 1:20 p.m., Salvador Gomez was the driver of a vehicle stopped at a red light at the intersection of 51st Street and Ashland Avenue in Chicago. People v. Tabb , No. 03 CR 24960, at C19. While stopped at the light, Gomez was approached by a tall black male with a handgun. Id at C20. The man ordered Gomez to exit to vehicle. Gomez then attempted to remove the handgun from his assailant's hand. At this point, the man stepped back and shot Gomez three times. Then the man ran away.
On October 25, 2003, Gomez was called to the police station and asked to identify the shooter in a lineup. He did not identify anyone in the first lineup. Later that day, Gomez viewed a second lineup. At that time, he identified Petitioner, Triandus Tabb, as the shooter.
At trial, a jury convicted Tabb of attempted first-degree murder, aggravated battery with a firearm, and aggravated vehicular hijacking. Id. at C18. Tabb was sentenced to a twelve year sentence that merged for purposes of the attempted first degree murder and the aggravated battery charges. Additionally, he was sentenced to a consecutive four year sentence for aggravated vehicular hijacking. On appeal, the court vacated the aggravated battery charge under the one-act, one-crime doctrine but affirmed the other convictions. Id. at C43.
Tabb then filed a post-conviction petition in state court pursuant to 725 ILCS 5/122-1, et seq. The petition claimed that Tabb was entitled to relief because (1) he was innocent; and (2) he was given ineffective counsel who failed to fully investigate and subpoena witnesses. The trial court granted the State's motion to dismiss the petition.
On appeal, the dismissal was reversed and the petition proceeded to an evidentiary hearing. In preparation for the hearing, Tabb sent the State a discovery request for any written notes related to the interviews of individuals who were named in the post-conviction petition. One of these witnesses included Nelly Gomez, the wife of Salvador Gomez. Petitioner had spoken with Nelly during the post-conviction investigation. At that time, Nelly allegedly stated to Petitioner's investigator that, while she and her husband were waiting in the police station before Salvador went into the second lineup, they had seen an 8 inch x 11 inch photograph of the Petitioner. After Gomez identified the shooter in the second lineup, Nelly was told by a police officer that the shooter was the same person as the man in the 8x11 photograph.
During post-conviction proceedings, the State interviewed Nelly. The notes from that interview were subsequently destroyed pursuant to office policies. Instead, the State provided Tabb with interview reports that they claim contained the information that had been contained in the destroyed notes.
The state trial court held an evidentiary hearing to determine whether Petitioner is "actually innocent." At the evidentiary hearing, Petitioner presented Dr. Berkowitz, an expert who testified that the lineup may have been unreliable. The trial court barred Dr. Berkowitz's testimony. Petitioner also sought to introduce affidavits of two newly discovered eyewitnesses, David Carr and Betty Stuckey, both of whom swore that Petitioner was not the shooter. Carr passed away before he could testify. At the hearing, Nelly testified that she did not tell Petitioner's investigator that she and her husband had seen a picture of Petitioner before the lineup. Nelly also denied that Gomez had seen a picture of Petitioner before the lineup. Petitioner's investigator claimed that Nelly had told her that Gomez viewed a large picture of the Petitioner just before viewing the lineup. After the post-conviction hearing, the court found Stuckey's testimony incredible.
Tabb now brings the instant habeas petition, asserting four claims for relief on the following grounds: (1) the state violated Tabb's constitutional rights by withholding exculpatory information and evidence of an improper and suggestive lineup during which Gomez identified Tabb; (2) the state destroyed, in bad faith, potentially useful evidence of the tainted lineup and independent eyewitness testimony that Tabb was not the shooter; (3) the state violated Tabb's rights by destroying, in bad faith, potentially useful evidence of the tainted lineup and independent eyewitness interviews; and (4) absent the constitutional violations, as well as the trial court entering a conviction based on evidence that did not prove Tabb guilty beyond a reasonable doubt and erring in certain evidentiary rulings that denied Tabb a fair trial, Tabb would have been found innocent.
A habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). "[U]nder the Rules Governing Habeas Corpus, the district judge... may employ a variety of measures in an effort to avoid the need for an evidentiary hearing.'" Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 81 (1977)). Rule 6(a) of the Rules Governing § 2254 Cases provides that "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." § 2254 Rule 6(a). In order to be granted discovery, Petitioner must: "(1) make a colorable claim showing that the underlying facts, if proven, constitute a constitutional violation; and (2) show good cause' for the ...