United States District Court, D. Nebraska
MEMORANDUM AND ORDER
John M. Gerrard, United States District Judge
This matter is before the Court on several motions filed by the defendant, Brent Bailey. Each motion will be denied.
Bailey was charged on March 20, 2012 with one count of receiving and distributing of child pornography, in violation of 18 U.S.C. § 2252A, and one count of knowingly possessing visual depictions of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252. Filing 1. On June 21, Bailey pled guilty to Count I of the Indictment. Filing 23. Bailey specifically admitted that he was using his computer on the Internet to locate and download child pornography, and admitted that he had conversations with purported minors asking to trade pictures. Filing 27 at 15-17. The Court ultimately sentenced Bailey to 156 months' imprisonment. Filing 44.
Two of the motions Bailey has filed are discovery motions. Filings 105 and 113. In one motion, Bailey asks that the government be compelled to produce information relating to the manufacture and sale of the computer used to commit the offense. Filing 105. In the other, he asks that the government be compelled to produce a questionnaire mentioned in a Nebraska State Patrol police report. Filing 113.
But Bailey has no right to discovery. The principles of
Brady v. Maryland, 373 U.S. 83 (1963), upon which Bailey relies, do not apply in the context of postconviction relief.
Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S.
52, 68-69 (2009). A petitioner seeking postconviction relief is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). A habeas petitioner may only be allowed discovery to the extent that the Court, in the exercise of its discretion and for good cause shown, grants leave to conduct it. See id. (citing Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts); see also Rule 6(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
But there is no good cause here. To begin with, Bailey has no pending 28 U.S.C. § 2255 motion, and in the absence of such a motion, discovery is unwarranted. See United States v. Barnett, 389 F.App'x 575, 575 (8th Cir. 2010). But even if Bailey had permission to file a successive § 2255 motion, no cause for discovery has been shown.
His theory regarding information about his computer seems to be that he must be innocent because his computer had not been constructed in 2008, when he is alleged to have committed the offense. Filing 105 at 1, 4. But he was actually charged with committing the offense "From at least on or about October 8, 2008, and continuing to on or about December 21, 2011, " filing 1, meaning that the computer's date of manufacture and sale would prove nothing. The law is clear that the use of "on or about" in an indictment relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified.
United States v. Kenyon, 397 F.3d 1071, 1078 (8th Cir. 2005). And Bailey's computer had obviously been made and sold before December 21, 2011 because it was seized from him on that date. Filing 42 at 5-6.
Bailey's other discovery motion asks for:
The "Questionnaires" in question that are mentioned in report, IR#H11-22474, on Page 4 of 26, that is a report by Brandon Sorgenfrei #687 of the Nebraska State Patrol, and specifically as addressed in the report, "see attached questionnaires" that were conveniently left out of the packet I requested for Discovery.
Filing 113. The Court has no idea what is being requested, and therefore finds that cause for discovery has not been shown.
Motion for Mental Health Commitment
Bailey also moves to have himself committed to a mental health facility, pursuant to 18 U.S.C. § 4245. Filing 111. But § 4245 provides for the involuntary commitment of a prisoner on the government's motion, over the prisoner's objection. See § 4245(a). It provides no authority for the Court ...