United States District Court, D. Maryland
MEMORANDUM AND ORDER
Catherine C. Blake United States District Judge
Larry Davis challenges his 2010 convictions in the Circuit
Court for Baltimore. City, where he was convicted by a jury
of attempted first-degree murder, attempted first-degree
assault, second-degree assault, reckless endangerment, and
knowing possession of incendiary material with intent to
create a destructive device. (Cir. Ct. Baltimore City No.
106116048 Docket Sheet, ECF 8-1; Tr. Transcript, Feb. 18,
2010 at 3-4, ECF 8-9.) He seeks certain limited discovery.
(ECF No. 12.) The State has filed a response. (ECF No. 16.)
incident leading to the convictions, as set forth by the
Court of Special Appeals of Maryland, occurred on the
afternoon of April 11, 2006. Mr. Davis's former
girlfriend found him lying on the ground behind her car,
looking as if he were "doing some work" under the
vehicle. Fearing for her life, she screamed and ran. Mr.
Davis gave chase, caught her by the arm, and threatened to
kill her. She broke free, but "ended up on the ground,
" unsure whether she fell or was pushed. Her screams
brought a response, and the police were called. Mr. Davis ran
into nearby woods where he was found, identified by the
victim, and arrested. Davis v. State, Sept. Term
2010, No. 407 at 3-4 (Md. Ct. Spec. App. May 9, 2012).
intended to charge Mr. Davis with a domestic-related assault
in the second degree. A canine unit was brought to the scene
to search for a firearm. Instead, the canine unit located
articles of clothing identified as Mr. Davis's and
"a [duffel] bag containing fuel cells with wires
attached to them, a large black rubber band, sulfuric acid
sealed in a bag, pliers, wire-cutters, and a receipt from
Standard Carpet to [Mr. Davis's] Contracting Company,
which bore [Mr. Davis'] signature." Id. at
4. A yellow object was found duct-taped to the muffler of the
victim's car. Believing the yellow object to be an
explosive device, an officer called for the bomb squad, which
placed a nearby hospital on lock down. Id. at 4-5.
Bryan Bacon of the Baltimore City Police Department Special
Operations Unit, Emergency Services Bomb Squad "
determined that the item was a small propane tank of the type
used by contractors for sweating pipes during plumbing
jobs." Id. at 5. Wire and duct tape had been
used to attach the tank to the car's tail pipe. Officer
Bacon removed and "x-rayed the gas cylinder, which he
believed to contain MAPP gas, a type of propane that burns
hotter than regular propane." At trial, Officer Bacon
testified "that had the car been driven with the
canister attached to the tail pipe, the canister likely would
have ruptured, and if that had happened, there would have
been 'a large incendiary explosion' and possibly an
ignition of the car's gas tank, which may have blown up
the rear of the car and injured the driver, as well as any
people in the immediate area." Id.
close of the State's case, Mr. Davis moved for judgment
of acquittal on the charge of possessing incendiary material
with intent to create a destructive device. He argued that no
witness had verified that the yellow cylinder attached to the
car actually contained MAPP gas. The Court of Special Appeals
explained, "Because the police department's x-ray of
the canister showed only some type of liquid inside, [Mr.
Davis] maintained that there was no evidence that the
canister contained incendiary material. The State countered
that there was nothing to suggest that the cylinder contained
anything other than the substance it was labeled to contain,
an extremely flammable MAPP gas." Id. at 7. The
court denied Davis's motion and the jury convicted him.
his five grounds for habeas corpus relief, Davis argues: (1)
the prosecutor improperly suppressed the chain of custody
form concerning the x-ray of the gas canister; and (2) trial
counsel was ineffective for failing to subpoena the chain of
custody form prior to his first trial. (See Pet. at
7, ECF No. 1). Davis moves for limited discovery, seeking the
production of a copy of the x-ray film described by Officer
Brian Bacon during trial testimony, a copy of the transcript
from his February 15, 2017 post-conviction hearing, and two
letters admitted as defense exhibits during Davis's
post-conviction hearing, representing correspondence between
Davis and the Baltimore Police Department ("BPD")
Legal Affairs Department. (Mot. Specific Limited Disc, at 6-
10, ECF 12). The letters and transcript have been provided to
Davis (Sept. 23, 2016 Letter, ECF 16-1; Oct. 18, 2016 Letter,
ECF 16-2; Feb. 15, 2017 Post-Conviction Hearing Tr., ECF 18),
and his request for their production is moot. The remaining
discovery request is limited to the production of an x-ray
film made of a gas canister.
is not available as a matter of right in habeas corpus cases.
See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule
6(a) of the Rules Governing § 2254 Cases provides that
limited discovery under the Federal Rules of Civil Procedure
may be granted for good cause. A federal habeas petitioner
establishes the requisite good cause to conduct discovery
"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 v. Nelson, 394 U.S. 286, 300 (1969)).
cause" requires more than a petitioner's conclusory
assertion there may be some undiscovered or undisclosed
evidence to support his claim. The rules governing discovery
in habeas corpus cases do not countenance "a so-called
fishing expedition via discovery, an effort to find evidence
to support a claim." Borden v. Allen, 646 F.3d
785, 810, n. 31 (11th Cir. 2011); see also Williams v.
Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (citations and
quotation marks omitted) ("Rule 6 does not sanction
fishing expeditions based on a petitioner's conclusory
allegations. Conclusory allegations are not enough to warrant
discovery under Rule 6; the petitioner must set forth
specific allegations of fact.").
Court is not convinced that x-ray film of the canister is
available. The Assistant State's Attorney who prosecuted
Davis's case informed Respondents' counsel that an
x-ray film did not exist at the time of either of Davis's
trials. (Resp. ¶ 4, ECF No. 16.) This statement appears
to be consistent with the Assistant State's
Attorney's testimony at the post-conviction hearing, as
recounted in the Circuit Court's statement of reasons
denying post-conviction relief, stating that the Assistant
State's Attorney "emphasized [in her testimony at
the Feb. 15, 2017 post-conviction hearing] that no X-Report
[sic] ever existed to her knowledge." (Statement of
Reasons at 8-10, ECF 8-20.) Consequently, Respondents are
unable to produce the requested document.
contends this statement is "bogus, " based on
Officer Bacon's cross-examination during his first trial.
Reply at 1-3, ECF 17. According to the transcript relied on
by Mr. Davis, however, Officer Bacon did not testify clearly
that the canister seized at the scene was in fact x-rayed,
but may have been describing how in similar situations a
device might be x-rayed if it were necessary to determine
whether it was safe to handle. (ECF 17-1, p. 3). Even
assuming the canister was in fact passed through an x-ray to
make that determination, an x-ray image of its contents might
not have been preserved. More importantly, the trial court in
the second trial appears to have relied on the labeling on
the canister to determine its specific contents, not the
results of any x-ray. See Trial Tr., Feb. 17, 2010
at 92-96, ECF No. 8-8 (Judge denying motion for acquittal on
Count VI for possession of incendiary material and describing
the canister's labeling as consistent with an explosive
or incendiary material and with MAPP gas); see also,
Davis v. State, Sept. Term 2010, No. 407 at 14-15. To
the extent that an x-ray film ever did exist, the failure to
produce this film at trial and provide documentation of the
chain of custody with regard to the x-ray does not, without
more, entitle Davis to habeas relief.
has not met his burden under the discovery rules.
Accordingly, it is this 12th day of June 2018, by
the United States District Court for the District of
Maryland, ORDERED that Petitioner's Motion for Specific
Limited Discovery (ECF No. 12) is hereby DENIED.