IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
v. CASE NO. 8:08.CV.02212.T.23 MPP
WALTER A. McNEIL,
Department of Corrections,
PETITIONER’S MOTION FOR LEAVE OF COURT TO REQUEST DISCOVERY
COMES NOW the Petitioner, WAYNE TOMPKINS, by and
through undersigned counsel and pursuant to Rule 6 of the Rules
Governing Section 2254 Cases in the United States District Court,
and hereby moves for leave of Court to request discovery. As
good cause for his motion, Mr. Tompkins states:
1. Rule 6 of the Rules Governing Section 2254 Cases in the
United States District Court provides for discovery upon a
showing of good cause. In Bracy v. Gramley, 520 U.S. 899, 908-09
(1997), the United States Supreme Court explained that Rule 6 was
“meant to be ‘consistent’” with its previously stated position
“that ‘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, it is the duty of the courts to provide the necessary
facilities and procedures for an adequate inquiry.’”1 Federal
discovery has been provided in a number habeas cases heard by the
United States Supreme Court, with the product of the discovery
provided strong evidence in support of petitioner’s claims. See
Banks v. Dretke, 540 U.S. 668, 685 (2004)(“One item lodged in the
District Attorney’s files, turned over to Banks pursuant to the
Magistrate Judge’s disclosure order, was a 74-page transcript of
a [state’s witness’] interrogation.”); Strickler v. Greene, 527
U.S. 263, 278 (1999) (“The District Court entered a sealed, ex
parte order granting petitioner’s counsel the right to examine
and to copy all of the police and prosecution files in the
case.”). Here, Mr. Tompkins seeks to have mitochondrial DNA
testing conducted, and asks this Court to provide the “necessary
facilities and procedures for an adequate inquiry.” Harris v.
Nelson, 394 U.S. 286, 301 n.7 (1969).
Statement of Law and Fact In Support of Discovery
2. In determining the good cause underlying this motion,
and to aid this Court in identifying the “essential elements” of
this motion pursuant to Bracy v. Gramley, 520 U.S. at 904, this
Court should consider the facts underlying this case which have
been set forth in the Petition (Doc. 1). Mr. Tompkins
The Court quoted from its earlier opinion in Harris v.
Nelson, 394 U.S. 286, 299 (1969).
incorporates the recitation of those facts herein as providing
the factual predicate for mitochondrial DNA testing of all
available biological evidence in this case.
3. In Mr. Tompkins’ state court conviction for first
degree murder, it was the State’s position that a body found in
early June of 1984 was that of Lisa DeCarr who according to the
State had been murdered by Mr. Tompkins on March 24, 1983, more
than a year before discovery.
4. Identification of the remains was based upon limited
evidence. The day following the discovery and removal of the
body by the police, a police officer returned to the unprotected
scene and recovered two cross earrings from near where the
remains had been removed. Barbara DeCarr testified that these
earrings had belonged to Lisa DeCarr.
5. In addition to the earrings, the medical examiner
testified that he had been advised that Lisa DeCarr had an
occluded tooth. This information had also been received from
Barbara DeCarr. The medical examiner testified that Lisa had an
occluded tooth similar to the one noted in the skull of the
remains. Dr. Diggs acknowledged that he did not receive any of
Lisa DeCarr’s dental records (R. 196). Accordingly, there were
no dental records to compare with the x-rays taken of the
remains. Dr. Diggs did not testify that the remains were from
Lisa DeCarr; instead, he was merely asked if the death
certificate he filled out listed Lisa DeCarr as the victim (R.
189). Mike Benito, the trial prosecutor, testified in 1989 that
“[o]ther than Mrs. DeCarr’s description of the strange tooth in
her daughter’s mouth” there was no basis for the dental
identification (PC-R. 233).
6. In July, 1984, several items containing biological
evidence discovered along with the body recovered at 1225 E.
Osborne St. were forwarded to the Federal Bureau of Investigation
Crime Laboratory for forensic testing. These items were sent
along with evidence from another case involving a young woman,
Jessie Albach (a friend of Ms. DeCarr’s), whose decomposed body
was found about one month before the discovery of the body at
1225 E. Osborne St. The police believed that the same
perpetrator might have committed the two homicides.2 Ultimately,
the evidence submitted for testing was limited in its value for
testing available at that time, including serological testing.
All evidence was returned to the Tampa Police Department.
7. Mr. Tompkins unsuccessfully sought mitochondrial DNA
testing in state court. Tompkins v. State, 872 So. 2d 230, 242
(Fla. 2003). However, it is Mr. Tompkins’ position that
mitochondrial DNA testing very well may show that the body found
Although Mr. Tompkins at one point was suspected to have
been involved in Ms. Albach’s death, charges were not filed
because there was no evidence to connect Mr. Tompkins to either
her disappearance or death.
in early June of 1984 was not that of Lisa DeCarr. If the
remains were not those of Lisa DeCarr, then the State’s case
against Mr. Tompkins could not stand.
II. MR. TOMPKINS IS ENTITLED TO DISCOVERY PURSUANT TO RULE
6(A) OF THE RULES GOVERNING SECTION 2254 CASES
8. Rule 6 (a) of the Rules Governing Section 2254 cases
provides, in relevant part:
[a] judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Civil
Procedure, and may limit that extent of discovery.
9. The Advisory Committee Notes explained that “[g]ranting
discovery is left to the discretion of the court, discretion to
be exercised where there is a showing of good cause why discovery
should be allowed.” The Advisory Committee Note elaborated:
This Rule contains very little specificity as to what
types and methods of discovery should be made available
to the parties in a habeas proceeding, or how, once
made available, these discovery procedures should be
administered. The purpose of this Rule is to get some
experience in how discovery would work in actual
practice by letting district court judges fashion their
own rules in the context of individual cases.
10. Good cause exists where the allegations demonstrate
that the facts, if true, will entitle the petitioner to relief.
Bracy v. Gramley,520 U.S. at 909. If the skeletal remains
recovered in this case are, in fact, not those of Lisa DeCarr,
the entire case against Mr. Tompkins would fail. The
implications of such test results are self-evident. However, Mr.
Tompkins has never been given the opportunity to test, and
therefore pursue this avenue of relief. Relief, in the form of
access to DNA testing and ensuing litigation, is warranted due to
the implications of exoneration and the fact that results
favorable to Mr. Tompkins would require this Court to grant
11. Other district court judges, in fashioning “their own
rules in the context of individual cases” have considered, and
provided, DNA testing as a form of discovery under Rule 6 (a).
See e.g., Cherrix v. Braxton, 131 F. Supp 2d 756 (E.D. Va. 2001);
McFarlane v. Gillis, 2007 U.S. Dist. LEXIS 91867 (E.D. Pa.
December 13, 2007). So to should this Court fashion relief and
provide Mr. Tompkins access to mitochondrial DNA testing of the
biological evidence in the State’s case against Mr. Tompkins.
III. THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
ESTABLISHES MR. TOMPKINS’ RIGHT TO DNA TESTING IN THIS
12. The Due Process Clause of the Fourteenth Amendment
entitles an indigent criminal defendant to the basic tools
necessary for an adequate defense. Specifically, Amendment XIV,
section 1, of the United States Constitution provides in part:
No State shall . . . deprive any person of life,
liberty, or property, without due process of law [.]
13. Recently, the United States Court of Appeals for the
Ninth Circuit extended a limited due process right of access to
evidence for purposes of post-conviction DNA testing, when such
evidence might either confirm a petitioner’s guilt and/or provide
strong evidence upon which a petitioner may seek post-conviction
relief. In Osborne v. District Attorney’s Office, 521 F. 3d 1118
(9th Cir. 2008), the plaintiff brought a complaint pursuant to 42
U.S.C § 1983 alleging that the State of Alaska had violated his
rights under the U.S. Constitution by denying him his post-
conviction access to evidence for DNA testing. Id. at 1126.
Specifically, Osborne alleged that the State had violated his due
process right to access exculpatory evidence, and in turn,
violated his due process right to demonstrate actual innocence.
Id. Such restriction, argued Osborne, impeded his due process
and equal protection rights to meaningful access to the courts.
Id. The District Court had agreed, and ruled that access should
be granted. Osborne v. D.A.’s Office, 445 F. Supp. 2d 1079 (D.
Alaska, 2006). The State Appealed to the United States Court of
Appeals for the Ninth Circuit.
14. In reviewing this claim of access to potentially
exculpatory evidence, the 9th Circuit agreed with the District
Court and found Osborne’s challenge proper under the Due Process
Clause.3 In addition, the court created a post-conviction right
of access by extending the doctrine of Brady v. Maryland, 373
U.S. 83 (1963), and its progeny, as the evidence sought by
Due to its ruling, the Court declined to reach Osborne's
alternative arguments that the State's denial of access to
potentially exculpatory DNA evidence is effectively a denial of
meaningful access to courts in violation of the First or
Fourteenth Amendments. Osborne, 521 F.3d 1118 at 1142.
Osborne is potentially material to his yet to be asserted actual
innocence claim. Osborne, 521 F.3d at 1129-34. Specifically,
the Court held: “[U]ntil Osborne has actually brought an actual
innocence claim and has been given the opportunity to develop the
facts supporting it, Osborne’s access-to-evidence claim may
proceed on the well-established assumption that his intended
freestanding innocence claim will be cognizable in federal
court.” Osborne 521 F.3d at 1131. The State appealed this
decision, and cert was recently granted by the United States
Supreme Court. Dist. Attorney’s Office v. Osborne, 2008 U.S.
LEXIS 7970 (Nov. 3, 2008).
15. Mr. Tompkins asserts that the due process clause also
extends to his right to access post-conviction DNA testing under
§ 2254 discovery rules. As Mr. Tompkins’ appointed counsel is
prohibited by Florida law from filing any civil matters on his
behalf, including § 1983 and motions for DNA testing pursuant to
18 U.S.C.A., access must be granted through the only available
avenue, i.e., discovery pursuant to Rule 6(a) of the Rules
Governing Section 2254 cases. Diaz v. State, 945 So. 2d 1136,
1154 (Fla. 2006). Accordingly, Mr. Tompkins’ rights under the
Sixth and Fourteenth Amendments to a meaningful opportunity to
the courts and to be heard require that this Court grant him an
opportunity to conduct the requested DNA testing. Crane v.
Kentucky, 476 U.S. 683, 689-90 (1986), quoting California v.
Trombetta, 467 U.S. 479, 485 (1984).
16. Mr. Tompkins has always maintained his innocence of the
death of Lisa DeCarr. He has maintained that he does not know
whose remains were found in early June of 1984 or who killed the
person whose remains were found. Accordingly, he does not know
if the remains are those of Lisa DeCarr. Mitochondrial DNA
testing of the available biological evidence in this case could
establish the identity of those remains. If those remains are
not those of Lisa DeCarr, it would support his claim of innocence
and established that he is entitled to habeas relief under 28
17. Where, as here, there are claims of constitutional
error, and there are sound DNA testing methodologies, which if
utilized could demonstrate a viable claim of actual innocence,
the Court should act within its discretion and find that good
cause is shown to make the processes of discovery available to
Tompkins. Therefore, for the foregoing reasons, Petitioner
respectfully requests that this Court order discovery and permit
Petitioner to obtain mitochondrial DNA testing in order to
determine whether such testing would prove Mr. Tompkins’ claim of
innocence and would warrant habeas relief.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this, the 10th day of November,
2008, I electronically filed the foregoing Motion with the Clerk
fo the Court by using the CM/EFC system which will send notice of
electronic filing to SCOTT BROWNE, Assistant Attorney General,
Department of Legal Affairs, 3507 Frontage Road, Suite 200,
Tampa, FL 33607.
/s Martin McClain
MARTIN J. McCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
141 N.E. 30th Street
Wilton Manors, FL 33334
101 N.E. Third Avenue
Fort Lauderdale, FL 33301
Counsel for Mr. Tompkins