United States Court of Appeals
For the First Circuit
No. 10-1304
STANLEY DONALD,
Petitioner,
v.
LUIS S. SPENCER, SUPERINTENDENT,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Brad P. Bennion for petitioner.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
respondent.
August 26, 2011
HOWARD, Circuit Judge. In April 1999, a Massachusetts
jury convicted Stanley Donald of rape, kidnaping, assault and
battery with a dangerous weapon, and carjacking. After a series of
unsuccessful attempts at post-trial relief in state court, Donald
filed a petition for habeas corpus in federal district court in
Massachusetts.1 His petition set forth two general categories of
alleged constitutional infirmities in the state court proceedings.
First, that he was denied effective assistance of counsel both at
trial and during post-conviction proceedings; and second, that he
was denied post-conviction discovery in the state courts and that
said denial took place without a hearing. During the pendency of
his habeas petition, Donald proffered a motion for discovery,
seeking access to various pieces of physical evidence which Donald
wanted to subject to DNA testing more advanced than that performed
prior to his trial. The district court denied the discovery motion
without comment and subsequently denied Donald's petition in its
entirety. Donald v. Spencer, 685 F. Supp. 2d (2010).
On appeal, Donald challenges only the district court's
denial of his discovery motion.2 He also argues that the
1
The petition was actually his second, the first having been
dismissed without prejudice in 2006, due to the presence of
unexhausted claims still winding their way through the
Commonwealth's courts.
2
The district court issued a Certificate of Appealability with
respect to all claims in Donald's petition. See 28 U.S.C. § 2253.
His appellate brief, however, addresses only the district court's
denial of discovery. The other claims are therefore waived.
-2-
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
pursuant to which the district court evaluated his petition,
unconstitutionally restricts review to existing Supreme Court
precedent. We affirm.
I.
While habeas corpus proceedings under 28 U.S.C. § 2254
are civil in nature, they are governed by "a discrete set of
procedural rules." Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007)
(citing Mayle v. Felix, 545 U.S. 644, 654 & 655 n.4 (2005)).
Accordingly, "'[a] habeas petitioner, unlike the usual civil
litigant in federal court, is not entitled to discovery as a matter
of ordinary course.'" Bader v. Warden, 488 F.3d 483, 488 (1st Cir.
2007) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)).
Instead, Rule 6(a) of the Rules Governing Section 2254 Cases allows
the federal habeas judge, "for good cause, [to] authorize a party
to conduct discovery under the Federal Rules of Civil Procedure and
may limit the extent of discovery." Under Rule 6(b), the
requesting party must provide reasons for the request. We review
the district court's denial of discovery for abuse of discretion.
Teti, 507 F.3d at 60 (citing Bader, 488 F.3d at 488).3
3
Because we resolve this appeal under Rule 6, we need not
address the implications of Cullen v. Pinholster, 131 S. Ct. 1388
(2011), in which the Court rejected a petitioner's claim for a
federal evidentiary hearing, holding that "evidence introduced in
federal court has no bearing" on review of cases such as this,
which seek review under 28 U.S.C. § 2254(d)(1), if the petitioner's
claim has been reviewed on the merits in state court. Id. at 1400.
-3-
To demonstrate "good cause" Donald must present "specific
allegations that give a court reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that
he is . . . entitled to relief." Id. (citing Bracy, 520 U.S. at
908-09). Undergirding this construct is our admonition that "[a]
habeas proceeding is not a fishing expedition." Id. Here, Donald
argues that he provided the district court with "a reason to
believe" that more refined DNA testing would demonstrate that he
was not the perpetrator of the rape. This necessarily requires us
to recount the evidence presented against him at trial.
II.
We summarize the relevant facts as described in the
Massachusetts Appeals Court's decision affirming Donald's
conviction. Commonwealth v. Donald, 775 N.E.2d 1283, 2002 WL
31246493 (Mass. App. Ct. 2002)(unpublished table decision); see
Teti, 507 F.3d at 58 (noting § 2254(e)(1)'s "presumption of
correctness" applicable to state appellate courts' fact-finding).
On Tuesday, October 21, 1997, a woman was accosted at
9:40 AM in the garage of her apartment in Watertown, Massachusetts.
The perpetrator smashed her face into the cement floor of the
garage, breaking the victim's nose. The man said he needed money
for drugs. When the victim said she didn't have sufficient cash,
the man ordered her into her own car, shoved her into the passenger
See Atkins v. Clarke, 642 F.3d 47 (1st Cir. 2011).
-4-
seat and drove out of the garage. He subsequently took her
driver's license and demanded her automated teller machine (ATM)
card and password.
The perpetrator, who was threatening the victim
throughout the ride and had become increasingly agitated,
eventually stopped the car. He pulled the victim out the
passenger-side door, her head still covered with the jacket he had
placed over it. Then he hit her on the side of the head, perhaps
with a rock. She tried to play dead but he ordered her to walk.
He commanded her to remove her hosiery and underwear, and to lay on
the ground with her legs in the air. He then raped her several
times.
Finally, she heard him walk to the car and drive away.
After getting dressed, she ran to the road and flagged down a
passing motorist, who took her to the nearest medical facility --
a nearby animal clinic -- where the staff called police.
Responding officers found the bloodied victim with an obviously
broken nose, numerous cuts and abrasions, and disheveled hair and
clothing. An ambulance transported her to a hospital. From the
victim's description, police quickly located the crime scene, about
one-quarter mile from the animal clinic.
At roughly the same time that the victim was arriving at
the animal clinic, a $300 withdrawal was made from her bank account
at an ATM four miles from the rape scene. The videotape of the
-5-
withdrawal was secured, and still photographs of the transaction
were made from the taped footage.
At 8:00 PM on the night of the attack, police discovered
the victim's abandoned car about twenty miles from the scene of the
rape, partially obscured by brush. At 5:30 AM the following day,
a handyman sweeping the area found a driver's license on the ground
a short distance from the location of the victim's car. The name
on the license was “Stanley Donald." The man returned it by mail
to the address on the license.
Having discovered this information, investigators tracked
down Donald's employer. In November 1997, they showed the still
images from the ATM transaction to the company president and to
Donald's supervisor. Both identified the man depicted in the image
as Donald. Both also identified him at trial. At the time of the
attack, the defendant had been working steadily at the company for
more than five months. He did not show up for work as scheduled on
October 21, the day of the attack. He never showed up for work
again and he never picked up his final paycheck.
On the afternoon of the attack, a chemist from the
Massachusetts State Police collected the clothing that the victim
wore when she was raped. He later took a cutting from her
underpants and submitted it for DNA testing, along with known
samples of Donald's and the victim's blood. The result: the
-6-
frequency of a match between the sample and Donald's profile
occurred in one in 7,800 African-Americans.
On November 11, 1997, the defendant's mother gave police
an envelope addressed to her, containing a one-page handwritten
letter and a handwritten prayer. Experts opined that all three
documents were written by the defendant. The envelope was
postmarked from New York within three weeks of the attack. The
letter read:
Dear: Mom
I'm Okay, I really got to [sic] high and lost
my mind, I'm not in jail. I got a new name,
and a job, please forgive me mama, I'm still
with Jesus, I go to church everyday now and
there is (no drugs here) only me and the horse
and cows.
Love/Stan
On November 20, 1997, the victim viewed a photographic
array at a police station. She selected a photograph of the
defendant and said that it looked “very, very much like the person
who assaulted me." She also identified him at trial.
Donald was arrested in Florida in June 1998. Donald,
2002 WL 31246493, at *1-4.
III.
Donald's claim of "good cause" for discovery combines two
approaches. First, he tries to minimize the evidence arrayed
against him at trial, suggesting that the victim's eyewitness
testimony was faulty and that the photograph of him using the
-7-
victim's ATM card to withdraw money from her bank account minutes
after the rape and near the crime scene could be explained by other
"possible circumstances" that would render him guilty of theft, but
not rape. To recount his theory is to highlight its weakness.
Although conceding that he was the person photographed at the ATM,
Donald posits that "another man" (possibly his relative) raped the
victim, and took her car, ATM card and password. "A short time
later" that person "encountered" Donald and gave him the items.
The two then disposed of the victim's car, during which time Donald
lost his license. Whatever iota of theoretical plausibility this
theory might hold, it is bereft of any record support.
Donald's second tack is based on advancements in DNA
testing, which he claims would inure to his benefit by establishing
his innocence. To be sure, "[m]odern DNA testing can provide
powerful new evidence unlike anything known before." Dist.
Attorney's Office v. Osborne, 129 S. Ct. 2308, 2316 (2009). But
given the evidence amassed against him, Donald offers us nothing
other than pure speculation to suggest that he would ultimately be
entitled to relief. He cites no facts upon which to base a
conclusion that new DNA evidence will exonerate him. By contrast,
in Bracy, the Supreme Court reversed the denial of discovery under
Rule 6 because of evidence that the petitioner's trial judge was
later convicted of accepting bribes from other defendants, and that
his own appointed counsel had been an associate of the crooked
-8-
jurist. 520 U.S. at 906-09. The petitioner in Bracy suggested
that his lawyer accepted appointment to the case and -- to the
petitioner's detriment -- helped bring it to a quick conclusion to
help deflect suspicion from rigged cases that came before and after
his own. Id. at 909. The Court said that these "specific
allegations" entitled him to discovery. Id. Donald's speculative
theories and baseless allegations come nowhere close to meeting the
standard articulated in Bracy. Accordingly, we find that the
district court did not abuse its discretion in denying his motion
for discovery.4
IV.
As for Donald's claim that AEDPA unconstitutionally
restricts review to Supreme Court precedent, we continue to reject
it. See Abrante v. St. Amand, 595 F.3d 11, 20 (1st Cir. 2010)
("'[T]he Constitution is not offended when lower federal courts are
prevented from substituting for that of a state court their
judgment as to reasonable application of Supreme Court precedent.'"
4
We note that Donald's request to perform further DNA testing
was twice rejected during state post-trial proceedings. His brief
makes only glancing references to alleged shortcomings in those
decisions. But he does not argue here, however, as he did in his
petition below, that those decisions were constitutionally infirm.
And although he does not explicitly present the argument here, to
the extent that Donald is claiming that Massachusetts' post-trial
procedures are constitutionally deficient, we have held otherwise.
See Tevlin v. Spencer, 621 F.3d 59, 71 (1st Cir. 2010) (holding
that Massachusetts' post-conviction discovery procedures are
facially constitutional) (citing Osborne, 129 S. Ct. at 2320
(holding that Alaska post-conviction procedures for DNA discovery
are constitutional)).
-9-
(quoting Evans v. Thompson, 518 F.3d 1, 8 (1st Cir. 2008))) cert.
denied, 131 S. Ct. 168 (2010).
The judgment of the district court is affirmed.
-10-