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                       MIDDLE DISTRICT OF FLORIDA
                             TAMPA DIVISION



v.                               CASE NO.   8:08.CV.02212.T.23 MPP

     Secretary, Florida
     Department of Corrections,




      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.


      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

habeas relief.

       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.


       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

U.S.C. §2254.

      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
                              (305) 984-8344

                              NEAL DUPREE
                              101 N.E. Third Avenue
                              Fort Lauderdale, FL 33301
                              (954) 713-1284

                              Counsel for Mr. Tompkins