Sample v. Colson (958 F. Supp. 2d 865, 2013)

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION FOR DISCOVERY

JON P. McCALLA, Chief Judge.

I. RELEVANT PROCEDURAL BACKGROUND

II. TENNESSEE SUPREME COURT SUMMARY

III. THEORIES OF THE CASE

IV. BACKGROUND

A. Low’s Grocery Robberies, August 7 and 29,1981

B. Lillie & Eddie’s Grocery Robbery, August 18,1981

1. Testimony of Eddie Wright

2. Testimony of Darrell Perry

3. Testimony of Gino White

4. Testimony of Michael Winfrey

5. Non-Testifying Witnesses

6. Suspects in Lillie & Eddie’s Grocery Robbery

C. L & G Grocery Robbery and Murders, August 29,1981

1. Testimony of Melvin Wallace

2. Testimony of Charles Rice

3. Testimony of Grover Jones

4. Testimony of Charles Malone

5. Testimony Regarding Petitioner’s Arrest

6. Non-Testifying Witnesses

7. Suspects in the L & G Grocery Robbery and Murders

V. RELEVANT CLAIMS

VI. STANDARD

A. Discovery Related to Procedurally Defaulted Claims

B. Impact on Jury Verdict

C. Pinholster

VII. ANALYSIS

A. DA & MPD Records (“Request A”)

B. Charles Rice (“Request B”)

1. School Records (“Request Bl”)

2. Juvenile Records (“Requests B2-B6”)

3. Deposition of Charles Rice (“Request B7”)

C. Alibi Evidence for the L & G Grocery Robbery and Murders, the Lillie &

Eddie’s Grocery Robbery, and the Low’s Robberies (“Request C”)

D. Consideration Given to Witnesses (“Request D”)

1. Melvin Wallace (“Requests D1-D2”)

2. Charles Malone (“Requests D3-D5”)

3. Eddie wright (“Request D6”)

4. Mike Winfrey (“Requests D7-D9”)

5. Gino White (“Requests D10-D11”)

E. The L & G Grocery and Grover Jones (“Request E”)

1. Law Enforcement and Prosecution Files Related to Drug Activity (“Requests El, E3”)

2. Consideration Given to Grover Jones (“Request E2”)

3. Deposition of Grover Jones (“Request E4”)

F. DA & MPD Files Regarding Lillie & Eddie’s Grocery (“Request F”)

G. Law Enforcement Records Related to Drugs at Lillie & Eddie’s Grocery (“Request G”)

H. DA and MPD Records for the Low’s Grocery Robberies (“Request H”)

I. Certain Individuals’ MPD and DA files (“Request I”)

1. Individuals Suspected of Participating in the August 29,1981, Robbery and Murders at the L & G Grocery and/or Individuals who Knew of the Ongoing Criminal Activities at the L & G Grocery (“Request.il”)

2. Individuals Suspected in the Robbery of, and/or Familiar with Ongoing Criminal Activities at, Lillie & Eddie’s Grocery (“Request 12”)

3. Individuals Suspected of Participating in the August 7, 1981, and August 29,1981, Low’s Grocery Robberies (“Request 13”)

VIIL CONCLUSION

I. RELEVANT PROCEDURAL BACKGROUND

On August 2, 2012, Petitioner Michael Sample, through counsel, filed a Motion for Discovery and a supporting memorandum. (ECF No. 43; ECF No. 44.) On September 4, 2012, Respondent filed a Response. (ECF No. 46.) Petitioner replied on September 18, 2012. (ECF No. 48.) On October 5, 2012, Respondent filed a “Supplemental Response to Petitioner’s Reply to Respondent’s Discovery Motion Response.” (ECF No. 52.) On October 10, 2012, Petitioner filed a “Reply to Respondent’s Supplemental Response Regarding Motion for Discovery.” (ECF No. 54.) On March 27, 2013, Respondent filed a “Notice of Supplemental Authority in Support of Responses to Petitioner’s Motion for Discovery.” (ECF No. 56.) On April 8, 2013, Petitioner filed a “Notice of Supplemental Authority.” (ECF No. 57.)

For the following reasons, Petitioner’s Motion for Discovery is GRANTED IN PART and DENIED IN PART.

II. TENNESSEE SUPREME COURT SUMMARY

The Tennessee Supreme Court, in its opinion issued October 15, 1984, summarized the facts of the case as follows:

On August 29, 1981, at approximately 11:00 p.m. Melvin Wallace, Jr., went into the L & G Sundry Store at 1069 North Watkins in Memphis to purchase two barbecue sandwiches. When he entered, there were four men in the Sundry Store, including two clerks, Benjamin Cooke and Steve Jones, who were known to Wallace as he was a regular customer. The other two black men were the defendants, Larry McKay and Michael Eugene Sample. Wallace did not know them but positively identified them in a line-up at 2:43 p.m. on August 31, 1981, as the murderers of Cooke and Jones and Sample as the person who shot him in the thigh and back and attempted to shoot him in the head.

Wallace testified that he went to the back of the store where Cooke had gone to prepare the sandwiches. McKay was also standing in the back with a quart of 45 Beer mumbling to himself. Not wanting to get involved with a drunk, Wallace turned and directed his attention to the front of the store where Jones and defendant Sample were standing. When he thought the sandwiches would be ready, he looked around at Cooke and saw that McKay had gone behind the counter and was holding a gun at Cooke’s head. When Wallace realized “it was a robbery” and “broke and ran for the front door,” Sample hollered for him to halt and shot him in the thigh. Wallace tried to play dead but Sample came over and said, “This nigger ain’t dead,” and shot him in the back. Wallace had heard Sample demanding that Jones give him all the money and heard Jones say, “Man, I gave you everything I had.” After hearing Sample say several times, “I ought to kill all you son-of-a-bitches,” Wallace heard him say, “Kill every son-of -a-bitch in here,” and the defendants started shooting. Wallace testified he saw McKay shoot Cooke in the head. Sample came back to where Wallace was lying on the floor and put a pistol to his head. It clicked several times and did not go off. Wallace testified that he “came up off the floor” and started wrestling with Sample. The gun went off past Wallace’s head and he lapsed into unconsciousness. When Wallace woke up, he heard Sample say, “Let’s get the hell out of here.”

Cooke and Jones died from the bullet wounds to their heads; but when the police arrived shortly after the killers left, Wallace was able to give them information about the episode and gave a description of the killers while he was receiving medical care at the scene and at the hospital. One of the investigating officers remembered that a grocery store across the street from the L & G Sundry Store had been robbed about ten days earlier, and that the witnesses had said the robbers were two black males wearing blue-green surgical caps. Among the items taken in that robbery was a .45 caliber automatic pistol that had a tendency to misfire. Shell casings from a .45 caliber automatic were found in the Sundry Store; and putting together leads from the two robberies, the police apprehended Sample and McKay the next day. They were in a ear with a third man, and the .45 automatic with the serial number of the pistol stolen from the grocery across the street was found on McKay. A .32 caliber revolver was found inside the car. Bullets recovered from Jones’ cheek, Cooke’s head and chest and Wallace’s leg had been fired from the .32 caliber revolver found in the car. Two blue hospital surgical caps were found in the car. More than two hundred and perhaps as much as seven hundred dollars in cash was stolen from the Sundry Store; and McKay, who was unemployed, had $166.30 on his person when arrested. Sample had $195 in cash at that time. The third man in the vehicle testified to incriminating circumstances linking defendants to recent criminal activity.

Charles Rice, age sixteen, went to the L & G Sundry Store to buy cigarettes and as he arrived at the door he saw the robbery in progress, specifically the gun pointed at the head of one of the clerks. He turned and ran home and told his mother what he had seen and later reported the information to the police. He made a positive identification of both defendants.

State v. McKay, 680 S.W.2d 447, 448-49 (Tenn.1984).

III. THEORIES OF THE CASE

The prosecution’s theory was that Petitioner and Larry McKay committed both the L & G Sundry Store (“L & G Grocery”) robbery and murders and the Lillie and Eddie’s Grocery Store (“Lillie & Eddie’s Grocery”) robbery. The prosecution used evidence from the Lillie & Eddie’s Grocery robbery to identify the defendants and prove their guilt. (See, e.g., ECF No. 21-1 at 1764.) At the L & G Grocery robbery and murder trial (the “L & G Grocery trial”), the prosecution focused on the following evidence: (1) the similarities between the descriptions of the Lillie & Eddie’s Grocery robbers and the L & G Grocery robbers (see id.; ECF No. 21-6 at 2471); (2) the serial number on the .45 caliber automatic weapon, which was found on Petitioner’s co-defendant at his arrest, matched the serial number of the gun stolen from Lillie & Eddie’s Grocery (see ECF No. 21-1 at 1765; ECF No. 21-6 at 2464); (3) the shell casings found at the L & G Grocery matched shell casings from the .45 caliber automatic weapon stolen from Lillie & Eddie’s Grocery (see ECF No. 21-1 at 1767); (4) the general description of the Lillie & Eddie’s Grocery robbers matched Petitioner, McKay, and Charles Malone and the car that they were in at the time of their arrest matched the description of the car from the Lillie & Eddie’s Grocery robbery (see id. at 1764; ECF No. 21-6 at 2470-71); (5) the .32 caliber revolver confiscated at Petitioner’s arrest was matched to the .32 caliber slugs taken from Melvin Wallace, Steve Jones, and Benjamin Cooke’s bodies (see ECF No. 21-1 at 1766-67; ECF No. 21-6 at 2479-80); (6) the eyewitness identification of the defendants by Melvin Wallace, Charles Rice, and Eddie Wright (see ECF No. 21-6 at 2476-78); and (7) the testimony of Charles Malone, see infra pp. 880-81, regarding the events that occurred just prior to the defendants’ arrest (see ECF No. 21-6 at 2472, 2476).

Defense counsel presented no evidence the L & G Grocery trial. Instead, the defense focused on the following: (1) whether the prosecution could prove its case beyond a reasonable doubt and to a moral certainty (see ECF No. 21-1 at 1770; ECF No. 21-7 at 2519-21); (2) whether the identification of Petitioner was tainted (see ECF No. 21-7 at 2524-25); (3) whether Charles Malone’s testimony was reliable (see id. at 2534-35); (4) whether Grover Jones’ testimony, the store’s owner and victim Steve Jones’ uncle, about his ability to make six hundred dollars in just two hours selling barbecue and other food items was truthful and whether Grover Jones was instead engaging in illegal activity through his store (see id. at 2521-22); (5) whether Melvin Wallace and Charles Rice’s identifications of Petitioner were credible (see id. at 2523-27); and (6) whether the person Grover Jones identified as “Junebug” was the person that should be on trial (see id. at 2522).

IV. BACKGROUND

Three other robberies were investigated in conjunction with the L & G Grocery robbery and murders: the August 18, 1981, robbery of Lillie & Eddie’s Grocery Store; and the August 7, 1981, and August 29, 1981, robberies of Low’s Cash Grocery (“Low’s Grocery”). (See ECF No. 44-1 at 13.) Petitioner and McKay were ultimately indicted for “murder during the perpetration of a robbery with a deadly weapon and murder in the first degree” for each of the August 29, 1981, L & G Grocery murders. (See ECF No. 21-1 at 1760.)

Jury selection in the L & G Grocery trial began October 18, 1982. (See ECF No. 19-10 at 1, 22.) The prosecution’s case-in-chief commenced October 28, 1982. (ECF No. 21-1 at 1757.) Both Petitioner and his co-defendant McKay pled not guilty to all charges. (ECF No. 21-1 at 1759-60.) The following individuals relevant to Petitioner’s Motion for Discovery testified regarding the L & G Grocery robbery and murders: Melvin Wallace, the surviving L & G Grocery victim (ECF Nos. 21-2 to -3 at 1864-1939); Charles Rice, witness to the L & G Grocery robbery (ECF Nos. 21-4 to -5 at 2192-2236); Grover Jones, owner of the L & G Grocery and uncle to victim Steve Jones (ECF No. 21-2 at 1783-1815); and Charles Malone, who was arrested with Petitioner and McKay on August 30, 1981. (ECF No. 21-5 at 2301-27; see ECF No. 44-1 at 1.)

Evidence regarding the Lillie & Eddie’s Grocery robbery was also admitted at the L & G Grocery trial. The following individuals relevant to Petitioner’s Motion for Discovery testified regarding the Lillie & Eddie’s Grocery robbery: Eddie Louis Wright, owner of Lillie & Eddie’s Grocery and witness to the Lillie & Eddie’s Grocery robbery (ECF Nos. 21-3 to -4 at 2012-82); Darrell Perry, witness to the Lillie & Eddie’s Grocery robbery (ECF No. 21-4 at 2082-87, 2116-42); Gino White, witness to the Lillie & Eddie’s Grocery robbery (ECF No. 21-4 at 2142-69); and Mike Bernard Winfrey, witness to the Lillie & Eddie’s Grocery robbery (ECF No. 2N4 at 2170-87). There was no testimony regarding the Low’s Grocery robberies at the L & G Grocery trial. (See ECF Nos. 19-9 to -10; ECF Nos. 20-1 to -10; ECF Nos. 21-1 to -7); see also Sample, 2010 WL 2384833, at *19.

The jury began its deliberations at 9:50 а. m. on November 3, 1982, and returned a verdict at 11:25 a.m. that same day finding Petitioner and McKay guilty of two counts of felony murder. (ECF No. 21-7 at 2570-72); see Sample, 2010 WL 2384833, at *1.

In his Motion for Discovery, Petitioner seeks information related to not only the L & G Grocery robbery and murders but also the Lillie & Eddie’s Grocery and Low’s Grocery robberies. Petitioner asserts that these other crimes are relevant to Petitioner’s case because of identification issues raised at the L & G Grocery trial and during his post-conviction proceedings. See Sample, 2010 WL 2384833, at *4-7, *17-19. The Low’s Grocery robberies, Lillie & Eddie’s Grocery robbery, and L & G Grocery robbery and murders are addressed in turn.

A. Low’s Grocery Robberies, August 7 and 29,1981

Annie and Tommy Low owned Low’s Grocery, which was robbed twice: once on August 7, 1981, and once at approximately 3:00 p.m. on August 29, 1981, eight hours before the L & G Grocery robbery and murders. Id. at *19. Low’s Grocery was located at 608 East Trigg Avenue. (See ECF No. 44-35.) Annie and Tommy Low were present during both robberies. (See ECF Nos. 44-35 to -38.) James Nunnley and his Mend Jackie witnessed the Low’s Grocery robbery on August 7,1981. (ECF No. 44-1 at 20.) Franklin Wright, a twelve-year-old girl, witnessed the Low’s Grocery robbery on August 29, 1981, and provided a statement to the police. (ECF No. 44-47.)

Both Annie and Tommy Low identified McKay as the perpetrator of the August 7, 1981, and August 29, 1981, robberies in a lineup on August 31, 1981, at 2:43 p.m. (See ECF No. 44-14.) Annie Low tentatively identified Ralph Franklin, McKay’s cousin (see ECF No. 21-5 at 2313), as the other perpetrator at this first lineup. (See ECF No. 44-36 at 3; see also ECF No. 44-14.) Annie and Tommy Low viewed a second lineup on August 31, 1981, at 2:55 p.m., in which Petitioner was the person at the first position in the lineup. (See ECF No. 44-12.) Neither Annie nor Tommy Low identified Petitioner at this lineup. (See id.) Franklin Wright identified Tommy Lee Bradford in a photographic lineup as one of the perpetrators. (ECF No. 44-44 at 2.)

B. Lillie & Eddie’s Grocery Robbery, August 18, 1981

Eddie Louis Wright was the owner of Lillie & Eddie’s Grocery, which was robbed on August 18, 1981. (ECF No. 21-3 at 2012-18.) Lillie & Eddie’s Grocery was located at 1062 North Watkins Street, across the street from the L & G Grocery. (Id. at 2012-13.) Testimony about the Lillie & Eddie’s Grocery robbery was admitted at the L & G Grocery trial. (See, e.g., ECF Nos. 21-3 to -4.)

1. Testimony of Eddie Wright

Eddie Wright testified at Petitioner’s trial about the Lillie & Eddie’s Grocery robbery that occurred on August 18, 1981. Wright was a witness to the robbery. Wright stated that two black males entered the store wearing blue or green hospital surgical caps. (ECF No. 21-3 at 2013, 2019.) The shorter of the two men walked up to the counter and made a purchase. (Id. at 2013.) The taller of the two men walked over to the meat counter. (Id.) The shorter man at the counter asked for soap pads. (Id.) After Wright told him they did not have any, the shorter man walked to the back of the store, came back with a bag of chips, and laid them on the counter. (Id.) The shorter man said, “Set this money out” and started hitting the register, trying to open it. (Id.) Wright testified,

I thought he was playing, and then I looked up and I saw the taller male had a gun pointed at one of the kids that was in the store. It might have been pointed at me, but in the direction the kid was standing, the gun was pointed towards him. Then the shorter one jumped over the counter and said, “Open the register.”

(Id. at 2014-2015.) The shorter man asked if Wright had a gun, and Wright told him “no.” (Id. at 2015.) The shorter man then started searching for a gun and about seven to eight minutes later the shorter man found a gun under the counter. (Id.) The gun was a .45 caliber automatic that Wright’s son Michael had given him. (Id.) The gun would occasionally misfire. (Id.)

The shorter man put Wright’s gun in his belt and asked him for his rings. (Id. at 2017.) Wright was not wearing any rings at the time. (Id.) The shorter man started taking the money out of the register and putting it in a paper sack which fell apart. (Id.) Billy Smith, one of the Lillie & Eddie’s Grocery employees, offered to get a bigger sack, and the man took the gun out and bumped Smith in the side with it and told him, “Hell, no. I don’t want you to do a damn thing.” (Id.; see ECF No. 21 — 4 at 2086.)

The taller man was standing near the entrance to the store holding a gun and pointing it towards the people in the store. (ECF No. 21-3 at 2016.) The taller man told Wright, “Take that change out of there, too,” and “Get some of them Kool cigarettes off there.” (Id. at 2017.)

The shorter man forced everyone into the store’s bathroom. (Id.) The kids in the store started running. (Id.) The shorter man tried to fire the gun in the ceiling but the gun misfired. (Id. at 2018.) The perpetrators exited the store and Wright called the police. (Id.) Wright gave the police a description of the men and the gun that was taken. (Id. at 2018-19.)

The night of the L & G Grocery robbery, Eddie Wright talked to the police and told them about the Lillie & Eddie’s Grocery robbery and the .45 caliber gun that was taken. (Id. at 2020; see ECF No. 44-1 at 3.) The police asked Wright if he knew the serial number of the gun. (ECF No. 21-3 at 2020.) Michael Wright, Eddie Wright’s son, gave the police the box for the pistol and some spent “hulls” (i.e., shell casings). (Id. at 2019-21; see ECF No. 44-1 at 6.)

Eddie Wright viewed a lineup on August 31, 1981, at 2:55 p.m. (ECF No. 44-12.) Wright stated that he was unable to identify anyone in the lineup. (ECF No. 44-32 at 1.) Wright further stated that the person at position number one in the lineup, Petitioner, and the person at number two in the lineup resembled one of the robbers, but both looked a “little lighter” than the robber. (Id.; see ECF No. 21-3 at 2028-29.) At trial, Wright identified Petitioner as the taller perpetrator (ECF No. 21-3 at 2024), and McKay as the shorter perpetrator (id. at 2022).

Wright also identified a .32 caliber gun presented at trial as one resembling the gun that the taller man held during the robbery. (ECF No. 44-32 at 1-2.) At trial, Wright testified that the gun the taller man was holding did not have a trigger guard. (ECF No. 21-3 at 2025.)

2. Testimony of Darrell Perry

Darrell Perry, sixteen years old at the time of the L & G Grocery trial, testified about the Lillie & Eddie’s Grocery robbery that occurred on August 18, 1981. Perry was a witness to the robbery. Perry testified that he was in Lillie & Eddie’s Grocery at about 9:00 p.m. on August 18, 1981, when two men walked in. (ECF No. 21-4 at 2082-83.) Perry stated that the taller man walked by the meat counter and tried “to hide his face [so] nobody would see him.” (Id. at 2085.) The shorter man said “Stick up” and jumped over the counter. (Id.) Perry was next to the door, and the taller man reached across him with the gun. (Id. at 2085-86.) The taller man would hide the gun between his own legs when people came into the store and would then push the people to the side after they entered. (Id. at 2086-87.)

On August 26, 1982, Perry and witness Billy Smith viewed photographs at the district attorney’s office. (Id. at 2116-17, 2132.) Perry picked Petitioner’s photograph from the group as one of the perpetrators and, at trial, identified Petitioner as the taller robber at Lillie & Eddie’s Grocery on August 18, 1981. (Id. at 2116— 18, 2140.) Perry did not identify McKay. (Id. at 2121.)

3. Testimony of Gino White

Gino White, fourteen years old at the time of the L & G Grocery trial, testified about the Lillie & Eddie’s Grocery robbery that occurred on August 18, 1981. White was a witness to the robbery. (Id. at 2142-43.) White testified that he was standing by the taller robber who was holding a short pistol that he described as not having a “handle on it where you stick your finger through [] and pull the trigger.” (Id. at 2145, 2165.) On August 25, 1982, White viewed photographs at the district attorney’s office. (Id. at 2147-48.) White identified Petitioner as the taller robber in one of the photographs based on a cut on the taller robber’s eye. (Id.); see Sample, 2010 WL 2384833, at *17. At trial, White identified both Petitioner and McKay as the Lillie & Eddie’s Grocery robbers. (Id. at 2149.)

4. Testimony of Michael Winfrey

Mike Winfrey testified about the Lillie & Eddie’s Grocery robbery that occurred on August 18, 1981. On the night of the Lillie & Eddie’s Grocery robbery, Winfrey was standing in front of Lillie & Eddie’s Grocery near the gas pump. (Id. at 2170-71.) Winfrey testified that he saw two men come out of the store and run to the car after the robbery. (Id. at 2171.) Winfrey identified a photograph of a two-tone blue Mercury with Cragar rims and a little “white antenna on the back” as the car parked behind the store to which the robbers ran. (Id. at 2171-72, 2174-75.) He provided a description of the car to the police. (Id. at 2175.)

Winfrey testified that he saw the taller robber’s face. (Id. at 2174.) On August 27, 1982, Winfrey identified Petitioner, based on a photograph, as one of the robbers. (Id. at 2175-76.) Winfrey identified Petitioner in court at the L & G Grocery trial as one of the Lillie & Eddie’s Grocery robbers. (Id. at 2176.) Winfrey did not identify McKay as one of the robbers.

5. Non-Testifying Witnesses

Other witnesses to the Lillie & Eddie’s Grocery robbery who did not testify at the L & G Grocery trial include Willie Everett, Berry Chambers, Billy Smith, and Johnny Lynn Smith. (ECF No. 44-1 at 11, 13, 15-18.)

6. Suspects in the Lillie & Eddie’s Grocery Robbery

Petitioner requests information regarding certain individuals who were considered suspects in the Lillie & Eddie’s Grocery robbery including Sammy House and Marvin Phillips. (See ECF No. 43 at 9.)

Sammy House was identified in a supplemental police report as a known hold-up man who Eddie Wright was told may have been involved in the Lillie & Eddie’s Grocery robbery. (See ECF No. 44-30 at 4.) Marvin Phillips’ car, a blue Chevy with tinted windows, was identified by Eddie Wright as possibly being associated with the L & E Grocery robbery. (Id.) The police investigated Marvin Phillips in relation to the Lillie & Eddie’s Grocery robbery. (Id. at 6-7.) Willie Everett also noted a car similar to Phillips’s car was present on the night of the robbery. (ECF No. 44-46 at 1-2.)

C. L & G Grocery Robbery and Murders, August 29, 1981

Grover Jones owned the L & G Grocery where two individuals, including his nephew, were shot and killed during an armed robbery on August 29, 1981. Sample, 2010 WL 2384833, at *16. The L & G Grocery was located at 1069 North Watkins Street, across the street from Lillie & Eddie’s Grocery. Id. at *1.

1. Testimony of Melvin Wallace

Melvin Wallace testified about the August 29, 1981, L & G Grocery robbery and murders. Wallace was a witness to, and victim of, the L & G Grocery incident. Wallace testified that at about 11:20 p.m. on August 29, 1981, he went to the L & G Grocery to purchase barbecue sandwiches on his way home from work. (ECF No. 21-2 at 1864-65.) There were five people standing inside the store when Wallace arrived. (Id. at 1865-66.) Benjamin Cooke went to the back of the store to make the sandwiches for Wallace. (Id. at 1866.) Wallace made an in-court identification of Petitioner and McKay as being present at the robbery. (Id. at 1866-68.) Wallace stated that McKay had “a quart of 45 beer and was mumbling to himself’ and that he thought McKay was just another drunk. (Id. at 1867-68.) When Wallace turned around to look at the front of the store, he saw McKay behind the counter pointing a gun at Cooke’s head. (Id. at 1868-70.)

After Wallace realized that there was a robbery taking place, he ran for the front door. (Id. at 1870.) He got half the distance to the door before Petitioner said, “Halt, nigger. I’ll shoot.” (Id.) Petitioner then shot him in the thigh, and Wallace spun around and fell. (Id. at 1871.) Wallace attempted to play dead. (Id. at 1871-72.) The bullet hit a nerve in his thigh, however, and his leg was shaking. (Id. at 1872.)

Wallace heard Petitioner say twice, “I ought to kill all you son-of-a-bitches.” (Id. at 1871.) Petitioner asked Steve Jones, the other clerk, for all the money. (Id.) Wallace heard Jones say, “Man, I gave you everything I had.” (Id.) Petitioner said, “Give me everything below and behind the counter.” (Id.) Finally, Petitioner said, “Kill every son-of-a-bitch in here,” and Petitioner and McKay began shooting. (Id.)

After McKay and Petitioner shot Cooke and Jones, Petitioner walked over to Wallace and said, “This nigger ain’t dead.” (Id. at 1872.) Wallace was lying face-down on the floor when Petitioner shot him in the back. (Id.) Wallace testified that Petitioner “put the pistol to my head, and it click, click, click. It didn’t go off.” (Id.) Wallace wrestled with Petitioner, and the gun went off past his head. (Id.) Wallace passed out, and when he awoke, he heard someone say, “Let’s get the hell out of here.” (Id. at 1872, 1874.) Wallace testified that he saw McKay pull Benjamin Cooke up and shoot him in the head prior to passing out. (Id. at 1873.) He did not see Steve Jones being shot. (Id. at 1873-74.)

Wallace lay on the floor for a period of time before moving around the corner to conceal himself behind some boxes. (Id. at 1874.) He remained there until the police arrived. (Id.) Wallace gave the police a general description of what he had witnessed before he was taken to the hospital. (Id. at 1875.) At the hospital, doctors removed one bullet from Wallace’s thigh. (Id. at 1875-76.) The other bullet remained in Wallace’s back. (Id. at 1876.)

On August 31, 1981, Wallace viewed two lineups. (Id. at 1877.) At the first lineup at 2:43 p.m., Wallace identified the person at position four, McKay, as one of the perpetrators, and tentatively identified the person at position six, Ralph Franklin, as the other perpetrator. (ECF No. 44-14; ECF No. 21-2 at 1878-80, 1883-84.) At 2:55 p.m., Wallace viewed a second lineup. (See ECF No. 44-12.) Petitioner was the person at the first position in the second lineup, but Wallace did not identify Petitioner as one of the perpetrators. (Id.; ECF No. 21-2 at 1881-82.)

Wallace identified Petitioner for the first time in court during the L & G Grocery trial. (See ECF No. 21-2 at 1867-68, 1884-85.) Wallace testified that he recognized Petitioner in the second lineup, but he did not write it down because he was sick and taking medication. (Id. at 1885-86.)

2. Testimony of Charles Rice

Charles Rice testified at trial about the August 29, 1981, L & G Grocery robbery and murders. Rice was seventeen years old when he testified. (ECF No. 21-4 at 2197.) Rice testified that on the night of August 29, 1981, he went to the L & G Grocery to get a quart of beer and a pack of cigarettes. (ECF No. 21-4 at 2197.) After getting the cigarettes, Rice left the L & G Grocery and walked to the street corner. (Id. at 2198.) Rice returned to the L & G Grocery after hearing a noise that sounded like firecrackers. (Id. at 2199.) When Rice returned to the L & G Grocery he looked through the glass door into the store. (Id.) Rice testified that he saw McKay holding Steve Jones by the collar with a pistol pressed against Jones’ head. (Id. at 2200-01, 2213.) Rice testified that he did not have a good view of Benjamin Cooke. (Id. at 2201-02.) Rice then ran home. (Id. at 2203.) Rice returned to the store later that night with his mother’s boyfriend. (Id.) He did not speak to the police at that time because he “didn’t want to get involved right then.” (Id.)

Rice testified that the police came to talk to him on the morning of August 30, 1981.(/d) His mother encouraged him to tell the police what he had witnessed the night before at the L & G Grocery. (Id. at 2204.) On August 31, 1981, Rice viewed two photographic lineups at police headquarters. (Id.) At the first lineup, Rice identified the person at position number seven, Charles Edward Malone, as one of the perpetrators. (See ECF No. 44-26.) Rice testified at the L & G Grocery trial that at the time of the first lineup, he was not positive that the person he identified was the perpetrator. (ECF No. 21-4 at 2208.) Rice further testified that he identified the person at position number seven in the lineup because that person closely resembled McKay, who Rice identified in court at the L & G Grocery trial as one of the perpetrators. (Id. at 2209-10.) At the second lineup, Rice identified the person at position number five as the person who was holding Steve Jones by the collar. (ECF No. 44-48 at 3.) At trial, Rice testified that he identified the person at position number five as one of the perpetrators and identified that person in court as Petitioner. (ECF No. 21-4 at 2210-13; see ECF No. 44-26.)

3. Testimony of Grover Jones

Grover Jones, uncle of Steve Jones and owner of the L & G Grocery, testified regarding the August 29, 1981, L & G Grocery robbery and murders. Grover Jones was not a witness to the robbery and murders. At trial, Grover Jones testified that Steve Jones had been living with him and working in his store. (ECF No. 21-2 at 1784.) Grover Jones last saw Steve Jones and Benjamin Cooke at about 8:00 or 9:00 p.m. on the night of August 29, 1981, when Grover Jones left the store. (Id. at 1785-86.) Grover Jones testified that he left approximately two hundred dollars in cash at the store in a small brown bag. (Id. at 1788-89.)

Grover Jones testified that, on the night of the robbery, he was notified that he had a phone call and returned to the store. (Id. at 1789-90.) Upon arrival, the police questioned Grover Jones about the crime. (Id. at 1790.) Grover Jones later discovered that approximately six or seven hundred dollars were missing. (Id. at 1790-92.) Based on the description that police gave Grover Jones, Jones told the police that the crime may have been committed by a man named “Junebug” because they had trouble with him “in the neighborhood for breaking in.” (Id. at 1810-12.)

4. Testimony of Charles Malone

Charles Malone testified about the August 29, 1981, L & G Grocery robbery and murders. Malone was not a witness to the L & G incident. Malone was arrested with Petitioner and McKay, but was later released. (ECF No. 21-5 at 2322.) Malone testified at the L & G Grocery trial about circumstances linking the Petitioner and McKay to the crime. (Id. at 2301-14.) Malone testified that McKay came over to his house flashing money and asked Malone to ride with him. (Id. at 2302.) While in the car, McKay told Malone to look at an article in the newspaper about the L & G Grocery robbery, and McKay said, “Check this out.... Man, I seen so much blood last night it wasn’t funny.” (Id. at 2304-06.) They then went to the bus station, and McKay asked Malone to buy him a bus ticket to Chicago under the name “Larry Graham.” (Id. at 2306-07.) After leaving the bus station they drove to a corner grocery store on Danny Thomas Boulevard and were subsequently arrested. (Id. at 2308, 2310-11.)

5. Testimony Regarding Petitioner’s Arrest

Patrolman A.J. Walton testified about Petitioner’s arrest on August 30, 1981. (ECF No. 21-5 at 2245-76.) Walton testified that a broadcast went out on August 30, 1981, for a “blue-over-blue Mercury with chrome wheels, white CB antenna, occupied by three male blacks” related to the robbery and double murder at the L & G Grocery. (Id. at 2246-47.) Walton and his partner observed a “blue-over-blue Mercury with chrome wheels and the white CB antenna, occupied by three male blacks” on Danny Thomas Boulevard and pulled into the parking lot behind them. (Id. at 2247) The three men looked at the officers and exited the parking lot. (Id.) The officers began following the vehicle and called for backup. (Id. at 2247-48.) The car pulled into a private driveway on Georgia Avenue. (Id. at 2248.)

The officers approached the car with their guns drawn and ordered the suspects to exit the vehicle and put their hands on the brick building near the car. (Id. at 2248-49.) McKay and Malone got out of the car and put their hands on the wall. (Id. at 2249, 2264.) Petitioner “gave [the officers] a little trouble.” (Id. at 2249.) He said, “I haven’t did anything, man.... I haven’t did anything. What you want? What you want us to do?” (Id.) Walton grabbed Petitioner and put him on the wall. (Id.) Williams searched the suspects and found a loaded .45 caliber automatic pistol, cocked with one round in the chamber, on McKay. (Id. at 2249-50.) There was a .32 caliber revolver under the armrest of the car. (Id. at 2250.) Eight .45 caliber rounds, one hollow point .45 caliber round, and keys were found in the car. (Id. at 2256.)

6. Non-Testifying Witnesses

Other witnesses to the L & G Grocery robbery who did not testify at the L & G Grocery trial include Percy Lee Jeffries, Jenny Jeffries, and Billy Ray Vaughn. (ECF No. 44-30 at 1-2.)

7. Suspects in the L & G Grocery Robbery and Murders

James D. Coleman and Derrick Tolliver were, at one point, considered suspects in the L & G Grocery robbery and murders because they were involved in an armed robbery that occurred approximately five hours after the robbery and shootings at the L & G Grocery and approximately two miles away from the L & G Grocery. (ECF No. 44-30 at 5.) Charles Rice, see supra pp. 879-80, told police that Wilbur White (also known as “Big White”) was in front of the L & G Grocery using a pay phone at the time the robbery and murders occurred at the L & G Grocery. (See ECF No. 44-13 at 3; see also ECF No. 44-48 at 2 (“Q. Did you see anyone else outside the store? A. It was some man standing up there in the phone booth but I really don’t know his name.”).)

V. RELEVANT CLAIMS

Petitioner seeks discovery to support the following Brady and false testimony claims:

[A.]l. The State withheld evidence that key State witness, Melvin Wallace, Jr., did not identify Michael Sample as the perpetrator prior to trial and, relatedly, the State knowingly put on false evidence at trial when it allowed Melvin Wallace to testify that he was “positive” about Michael Sample’s identity. The State also withheld the fact that it pressured and/or cajoled and/or coached Melvin Wallace into testifying contrary to his initial statement to police....

[A.]2. The State withheld material, exculpatory evidence demonstrating that Michael Sample was not the person who committed the offense. The State also had evidence that witnesses identified and named other suspects, these suspects included, but were not limited to: Sammy House, Wilbur White (aka Big White), Leeaster McKay, Jr. (aka June-bug, aka Leester McKay, Jr.), Marvin Phillips, James D. Coleman, Derrick Tolliver, Charles Malone, Ralph Franklin, and Tommy Lee Bradford). The exculpatory evidence includes, but is not limited to, the following:

1. Ralph Franklin, Larry McKay’s cousin, was another suspect. The police knew that witness Melvin Wallace identified Ralph Franklin as one of the two perpetrators at a line-up immediately after the L & G offense. Larry McKay was the other perpetrator that Mr. Wallace identified that day. Conversely, Melvin Wallace did not select Michael Sample in a line-up that same day, despite the fact that Mr. Sample was an option. The State never informed the defense despite the fact that this evidence was highly exculpatory. Similarly, Annie Low, owner of Low’s grocery identified Ralph Franklin and Larry McKay in a line-up as responsible for the robbery at her store on August 29, 1981 — just hours before the incident at L & G. m. Tommy Lee Bradford was another suspect. The State had information contained in the Low’s Robbery Supplementary Offense Report # 2, that a witness to the August 29, 1981 robbery at Low’s grocery identified an individual named Tommy Lee Bradford as one of the two perpetrators responsible for that robbery. Given the fact that Low’s grocery was robbed mere hours before nearby L & G grocery and the Low’s robbery shared the same modus operandi as the L & G incident, this information was exculpatory.

[A.]3. The State withheld material, exculpatory information that the L & G Grocery was engaged in selling drugs, which demonstrates that other persons had motives to commit the offense and reflects adversely upon the tenuous credibility of the State’s witnesses associated with L & G. The Memphis Police Department, Shelby County Sheriff Department, and/or Federal Bureau of Investigation and/or drug task force knew of the drug dealing and the involvement ofL&G.

[A.] 4. The State also withheld exculpatory evidence relating to the testimony of Charles Rice, a 16-year-old who had allegedly gone to the L & G grocery to buy beer and cigarettes. Rice’s testimony was false and the State knowingly presented his false testimony. In fact, Charles Rice later reported that he felt pressured to talk to the police and cooperate. The State withheld from the defense that it pressured and/or cajoled and/or coached Charles Rice into testifying contrary to his initial statements to police. This is supported by the fact that prior to trial, Rice told police that he could really only see one perpetrator, Larry McKay, and he couldn’t really see anything else because during the crime, he was standing outside the store. This is also supported by the fact that Melvin Wallace told police that before the shooting, he noticed one other customer in the store — “a kid” — who left before the shooting started....

[A.]5. The State had in its possession documents demonstrating that Charles Rice’s identifications of Michael Sample at a line-up and at trial were misleading, inaccurate, and false....

[A.]6. The State withheld material exculpatory evidence and/or permitted false testimony concerning the robbery at Lillie & Eddie’s store on August 18, 1981. The State falsely alleged that Mr. Sample was involved in this earlier robbery, and then, at trial, relied upon that alleged involvement to claim that Mr. Sample was one of the offenders in the L & G offense. In particular, at trial, Eddie Wright, the owner of Lillie & Eddie’s, testified that Michael Sample had indeed robbed his store. Tr. 2024. Mr. Sample was never convicted of the robbery that occurred at Lillie & Eddie’s. The State permitted this testimony while having in its possession, material exculpatory evidence....

[AJ7. The State withheld information from the defense that Lillie & Eddie’s grocery was a well-known place to purchase illicit drugs, specifically preludes, quaaludes, and other pills. The Memphis Police Department, Shelby County Sheriff Department, and/or Federal Bureau of Investigation and/or drug task force knew of Lillie & Eddie’s involvement in drug dealing. Eddie Wright and Grover Jones, of L & G grocery, knew of each other’s illicit businesses. Eddie Wright sometimes hired a neighborhood person to work security armed with a gun at Lillie & Eddie’s due to the high volume o[f] drugs and money inside. Members of the Memphis Police Department were known to frequent L & G’s grocery in order to accept bribes in the form of cash and/or drugs in exchange for allowing the drug dealing enterprises at both L & G and Lillie & Eddie’s to continue. The court can impute police officer knowledge of such bribes to the prosecution and thus, such evidence is considered Brady material. Arnold v. McNeil, 622 F.Supp.2d 1294 (M.D.Fla.2009), affd 595 F.3d 1324 (11th Cir.2010) (habeas relief granted due to State’s failure to disclose evidence of police officer’s corruption, even though prosecutor did not have knowledge of corruption, because such evidence is considered Brady [evidence]).

[A.]8. The State also withheld evidence concerning robberies on August 7, 1981 and August 29, 1981 at Low’s Grocery, both of which involved the same modus operandi of the L & G incident, and which involved persons other than Michael Sample. Moreover, the August 29, 1981 robbery at Low’s occurred just hours before the incident at L & G’s grocery....

[A.]9. The State withheld evidence of consideration given to witnesses, such as failure to charge them with criminal offenses, in exchange for their testimony against Michael Sample at trial. Witnesses that received consideration in exchange for their testimony included, but are not limited to Grover Jones, Charles Rice, Willie Everett, Gino White, Eddie Wright, and Mike Winfrey.

[A.]10. Michael Sample incorporates all allegations in paragraphs A.1-A.9. The prosecution presented false testimony and withheld all of this exculpatory evidence which, when considered cumulatively, were [pivotal] to Petitioner’s convictions and death sentences. The subsequent state court denial of Mr. Sample’s claims for relief was contrary to and an unreasonable application of clearly established federal law.

(ECF No. 11 at 7-30.)

Petitioner seeks discovery to support the following due process claims:

[B.]1. The trial court failed to sever Michael Sample’s case from Larry McKay’s case where there was obvious evidence of McKay’s culpability and not Mr. Sample’s. This failure prejudiced Michael Sample because the State imputed information, including witness statements, about Larry McKay and the .45 caliber automatic gun to Michael Sample, where Michael Sample did not have anything to do with the .45 caliber automatic gun and its use in the crime.

[B.]2. The trial court violated Michael Sample’s due process rights and principles of fundamental fairness when it allowed the State to introduce evidence of the robbery at Lillie & Eddie’s grocery where Mr. Sample did not commit that robbery, where that robbery was only potentially relevant to McKay’s identity, and where witnesses never identified Mr. Sample as involved in that robbery. This information was not only not relevant to Mr. Sample’s guilt, it was not admissible for any other reason, even to prove identity.

[B.]3. Relatedly, Michael Sample was prejudiced and his due process rights were violated by being required to [defend] against the robbery that occurred at Lillie & Eddie’s when the State did not include that crime and the related offenses in the indictment.

(Id. at 30-31.)

Petitioner seeks discovery to support the following claims of ineffective assistance of counsel related to the investigation and preparation of his case:

[C.]2. Stanley Fink and Mark Saripkin failed to assemble an adequate defense team to represent Mr. Sample. If Messrs. Fink and Saripkin had assembled an adequate defense team, there is a reasonable probability that the jury would not have convicted Michael Sample of felony murder and/or sentenced him to death. A defense team could have investigated and prepared the issues that were crucial to defending against the State’s charges and convincing a jury that a punishment less than death was appropriate. It includes, but is not limited to, Stanley Fink and Mark Saripkin’s:

a. Failure to interview and investigate critical witnesses from the incident at L & G grocery, the robbery at Lillie & Eddie’s grocery, and the robberies at Low’s store. Relatedly, failure to investigate other suspects that witnesses identified, including, but not limited to: Sammy House, Wilbur White (aka Big White), Leeaster McKay, Jr. (aka June-bug, aka Leester McKay, Jr.), Marvin Phillips, James D. Coleman, Derrick Tolliver, Charles Malone, Ralph Franklin, and Tommy Lee Bradfor[ ].

[C.]5. Michael Sample’s attorneys failed to investigate the circumstances of Steve Jones and Benjamin Cooke’s deaths, including, but not limited to collecting and evaluating ballistic and fingerprint evidence, taking photos of the crime scene, consulting with a crime scene reconstructionist, a ballistic expert, a gang/urban sociology expert, a forensic pathologist, and [an] investigator devoted to guilt/innocence investigation ....

[C.]6. Michael Sample’s attorneys failed to investigate the August 18, 1981 robbery at Lillie’s & Eddie’s store. Investigating that incident would have revealed that Mr. Sample was not responsible for that crime, that others were responsible for the robbery at Lillie & Eddie’s, and that the other people responsible for the robbery at Lillie & Eddie’s were likely responsible for the homicides and robbery at L & G.

c. Had counsel investigated the crime at Lillie & Eddie’s they also would have discovered that it was a well known location to purchase illicit drugs. Thus, others had motives to rob the grocery and counsel would have had information to impeach witnesses that testified against Mr. Sample at trial.

[C.]7. Michael Sample’s attorneys failed to investigate the August 7, 1981 and August 29, 1981 robberies that occurred at Low’s grocery. Investigating those incidents would have revealed that Mr. Sample was not responsible for those crimes, that others were responsible, and that the other people responsible for the robberies at Low’s were likely responsible for the homicides and robbery at L & G, particularly because the August 29, 1981 robbery at Low’s occurred mere hours before the incident at L & G....

(Id at 32-38.)

Petitioner seeks discovery to support the following claims of ineffective assistance of counsel related to his counsel’s defense at the guilt-innocence stage of trial:

[D.]8. Failure to challenge the State’s presentation of evidence about the August 18,1981 robbery at Lillie & Eddie’s and highlight the fact that no one identified Michael Sample as the perpetrator for that crime. Moreover counsel failed to challenge the State’s claim that only two people, Larry McKay and Michael Sample, were involved in the robbery, when witnesses to that incident reported to the police that five black men were involved.

[D.]11. Michael Sample’s attorneys failed to properly and effectively cross-examine the State’s witnesses to demonstrate Mr. Sample’s innocence, including ballistics, eyewitness identification, and other experts, including, but not limited to Dr. Charles Harlan, the medical expert.

[D.]12. Michael Sample’s attorneys failed to demand that the court determine State witness, Charles Rice’s competency to testify and/or independently determine Rice’s competency to understand what was transpiring in the courtroom.

(Id at 43-45.)

Petitioner seeks discovery to support the following claims of trial court error:

[G.]3. In violation of Mr. Sample’s due process rights, the trial court improperly denied Mr. Sample’s motion for severance and tried Petitioner alongside co-defendant Larry McKay. Severance was necessary to preserve Mr. Sample’s right to a fair and reliable trial and sentencing because there was clear evidence of Mr. McKay’s guilt, not Mr. Sample’s....

[G.]20. The trial court improperly allowed witness Mike Winfrey to identify Mr. Sample in court (Tr. 2176) despite the fact that he had previously attended a preliminary hearing for the Eddie & Lillie’s robbery and saw Mr. Sample in court (Tr. 2185). Thus, Mr. Winfrey’s in-court identification of Mr. Sample did not reflect the fact that he recognized Mr. Sample as being involved in the Eddie & Lillie’s robbery on August 18, 1981, it was based on the fact that he saw him in court in October 1981.

[G.]21. The trial court improperly allowed witness Gino White to identify Mr. Sample in court (Tr. 2151) despite the fact that he had previously looked into the courtroom and observed Mr. Sample (Id). Thus, Mr. White’s in-court identification of Mr. Sample did not reflect the fact that he recognized him from being [involved] in the robbery at Eddie & Lillie’s on August 18, 1981, but it was based on the fact that Mr. White observed Mr. Sample [in court] immediately before testifying.

[GJ22. The trial court failed to allow a competency evaluation of witness Charles Rice where his competency to testify was clearly at issue. Tr. 2187-91.

[G.]26. The trial court violated Mr. Sample’s due process rights to a fair trial when it allowed evidence of the August 18, 1981 robbery of Lillie and Eddie’s Grocery (1062 North Watkins) into the record at Mr. Sample’s trial when such evidence was unduly inflammatory, irrelevant, and prejudicial and misleading about Mr. Sample’s culpability for the L & G robbery. Moreover, Mr. Sample was never convicted of the Lillie & Eddie’s robbery.

(Id at 60-66.)

Petitioner seeks discovery to support the following claim of prosecutorial misconduct:

[H.]2. During . the guilt-innocence phase of Michael Sample’s trial the prosecution repeatedly misled the jury to believe that Michael Sample was involved in a prior unrelated robbery. Specifically, the prosecution improperly introduced evidence of the August 18, 1981 robbery at Lillie & Eddie’s Grocery in order to prove guilt of first-degree murder in this case. The prosecution’s introduction of the stolen gun from the prior robbery (Tr. 1967) and testimony from witnesses, including highly prejudicial details from the prior robbery (e.g. Tr. 2012 et seq., 2022; 2082 et seq; 2171 et seq.) unduly prejudiced Michael Sample. Moreover, the introduction of such evidence resulted in an unreliable identification of Michael Sample and violated his due process rights, especially where the prosecution stated that they wanted to present evidence to prove identity.

(Id at 68.)

Petitioner seeks discovery to support his claim of actual innocence:

[K.]14. Michael Sample’s death sentence is unconstitutional because he is actually innocent of the crimes for which he was convicted.

(Id at 83.)

VI. STANDARD

Habeas petitioners do not have an automatic right to discovery. See Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir.2009) (quoting Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.2001)). Discovery in habeas cases is controlled by Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”), which states: “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.” See Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir.2009) (“For good cause shown, the district court has the discretion to permit discovery in a habeas proceeding....”). Habeas Rule 6 is meant to be “consistent” with the Supreme Court’s decision in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). In Harris, the Court stated:

[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 confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.

Hams, 394 U.S. at 300, 89 S.Ct. 1082.

“Good cause” is not demonstrated by “bald assertions” or “conclusory allegations.” Stanford, 266 F.3d at 460; see also Williams v. Bagley, 380 F.3d 932, 974 (6th Cir.2004). Rather, the requested discovery must be materially related to claims raised in the habeas petition and likely to “resolve any factual disputes that could entitle [the petitioner] to relief.” Williams, 380 F.3d at 975 (quoting Stanford, 266 F.3d at 460) (internal quotation marks omitted); see Bracy, 520 U.S. at 908-09, 117 S.Ct. 1793 (allowing discovery relevant to “specific allegations” of fact in support of a claim of constitutional error); Post v. Bradshaw, 621 F.3d 406, 425 (6th Cir.2010) (stating that discovery provides petitioner “that extra evidence he [ ] needs to prove or strengthen his case”); Braden v. Bagley, No. 2:04-CV-842, 2007 WL 1026454, at *2 (S.D.Ohio Mar. 30, 2007) (“Rule 6’s ‘good cause’ standard requires petitioner to at least attempt to identify what he expects to uncover through his discovery requests.”). Although “more liberal discovery is appropriate in capital [habeas] cases,” Payne v. Bell, 89 F.Supp.2d 967, 971 (W.D.Tenn.2000) (citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)), Rule 6(a) does not permit a “fishing expedition masquerading as discovery,” Stanford, 266 F.3d at 460.

Having determined the applicable standards related to Petitioner’s discovery request, the Court will address the following discovery issues raised by the State: (1) whether Petitioner is entitled to discovery on claims not exhausted in state court because those claims are procedurally defaulted; (2) whether Petitioner is entitled to discovery of information that would not have impacted the jury’s verdict; (3) whether Pinholster bars discovery on those claims that were adjudicated on the merits by the state court.

A. Discovery Related to Procedurally Defaulted Claims

Respondent argues that certain claims were not presented to the highest available state court. As a result, Petitioner is not entitled to discovery because those claims are procedurally defaulted and Petitioner did not exercise due diligence to obtain the factual predicate for these claims under 28 U.S.C. § 2254(e)(2). (See ECF No. 46 at 7-9, 12-15, 18-19, 22, 24, 27-29, 34, 36, 39-42, 45, 48-49, 52-54, 56-57, 59-69, 71.)

There is no clear entitlement to discovery in support of procedurally defaulted habeas claims. See Williams, 380 F.3d at 975-76 (finding no error in district court’s denial of discovery on procedurally defaulted ineffective assistance of counsel claims); Royal v. Taylor, 188 F.3d 239, 249 (4th Cir.1999) (finding no error in district court’s denial of discovery on procedurally defaulted due process claims); Calderon v. U.S. Dist. Court for the N. Dist. of Co., 98 F.3d 1102, 1106 (9th Cir.1996) (issuing mandamus to prevent discovery awarded by district court because petition er had not filed a habeas petition with exhausted claims or sought such discovery in the state court); Sherman v. McDaniel, 333 F.Supp.2d 960, 969-70 (D.Nev.2004) (denying discovery on unexhausted claims because “[t]o do so would tend to undermine the exhaustion requirement, and the doctrine of federal-state comity on which it rests”). But see Conway v. Houk, No. 3:07-cv-345, 2009 WL 961199, at *3 (S.D.Ohio Apr. 8, 2009) (“So long as the procedural default defense has not been adjudicated, its pleading does not provide a basis to deny discovery.”); Hutton v. Mitchell, No. 105-CV-2391, 2008 WL 4283318, at *2 (N.D.Ohio Sept. 16, 2008) (noting that allegations of procedural default will not automatically bar discovery). However, “a habeas petitioner may use a Habeas Rule 6 discovery motion to obtain evidence relevant to excusing procedural default.” Payne, 89 F.Supp.2d at 974 (granting discovery motion in support of a presumptively defaulted claim because the motion sought to discover evidence which would allow the petitioner to obtain a factual basis to excuse default, his “actual innocence”); see Braden, 2007 WL 1026454, at *10 (granting the deposition of a mitigation specialist where the request was reasonably calculated to lead to evidence that could demonstrate a justification for excusing the apparent default of the petitioner’s claim).

Since procedural default does not automatically bar discovery in habeas cases, discovery is allowed in this case if it would lead to evidence that could excuse the apparent procedural default of Petitioner’s claims.

B. Impact on Jury Verdict

Respondent argues that Petitioner is not entitled to discovery if the information requested would not have an impact on the jury’s verdict pursuant to 28 U.S.C. § 2254(e)(2)(B). (See ECF No. 46 at 7-9, 13-14, 16, 20, 23-24, 26-27, 29, 33, 35-36, 43, 46, 50, 53-54, 56, 58-59, 61-62, 64-66, 68, 70, 72.)

As stated above “good cause” is the appropriate standard for Habeas Rule 6 discovery. The good cause standard is satisfied if Petitioner is able to demonstrate that he may be entitled to relief if the facts are fully developed, in other words, if the requested discovery could yield evidence establishing a constitutional violation, and if the requested information would resolve a factual dispute that could entitle Petitioner to relief. See Williams, 380 F.3d at 976. Petitioner does not have to demonstrate that the requested discovery would impact the verdict.

C. Pinholster

Respondent contends that Pinholster bars the grant of discovery for Petitioner’s claims that were adjudicated on the merits by the state court because habeas review is limited to the record before the state court. (ECF No. 46 at 1-2, 6, 12, 32, 35-36, 39, 48, 55, 60, 63, 68-71.) As a result, discovery would be futile because the Court would be unable to use any new evidence in conducting § 2254 habeas review. (Id. at 2.)

In Pinholster, the Supreme Court held that 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), limits § 2254 habeas review to the “record that was before the state court that adjudicated the claim on the merits.” — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). In so holding, the Supreme Court stated that “[sjection 2254(e) continues to have force” and that “state prisoners may sometimes submit new evidence in federal court.” Id. at 1401.

Petitioner argues that Pinholster does not apply to the discovery requests because the State withheld evidence during the state court proceedings, and discovery was not previously available to Petitioner. (ECF No. 48 at 9.) He asserts that a Pinholster bar on discovery would mean that the State could thwart any adjudication of facts underlying a federal claim simply by withholding the facts during the state-court proceedings. (Id. at 10.) Petitioner further contends that any new evidence discovered would represent a new Brady claim. (Id.) Petitioner emphasizes the importance of a cumulative review of evidence for Brady and false testimony claims and argues that the state court has not conducted a cumulative review in Petitioner’s case. (Id. at 12.) He contends that the Court should grant discovery and consider all evidence on de novo review. (Id. at 12-13.)

The Court agrees with Petitioner for the following two reasons. First, Pin-holster “did not, strictly speaking, alter or even speak to the standards governing [Rule 6] discovery.” Conway v. Houk, No. 2:07-cv-947, 2011 WL 2119373, at *3 (S.D.Ohio May 26, 2011). Given the lack of direct guidance from the Supreme Court or the Sixth Circuit on the breadth of Pinholster, see Williams v. Houk, No. 4:06-cv-451, 2012 WL 6607008, at *4 (N.D.Ohio Dec. 18, 2012), the Court will follow the plain language of Pinholster and limit its force to § 2254 habeas review.

Second, Pinholster’s restrictions should not be invoked at the discovery phase where the petitioner is seeking discovery related to potential Brady violations. See Jones v. Bagley, 696 F.3d 475, 486 n. 4 (6th Cir.2012) (stating that if Petitioner could establish a Brady violation with the introduction of new evidence discovered in the federal habeas proceedings, introduction of that evidence wo