United States District Court, E.D. Michigan, Southern Division
TONY D. STREETS, Petitioner,
GEORGE STEPHENSON, Respondent.
OPINION AND ORDER (1) DENYING PETITIONER'S MOTION
TO CORRECT STATE COURT RECORD ; AND (2) DENYING
PETITIONER'S MOTION FOR DISCOVERY 
D. Borman United States District Judge.
Tony D. Streets, a state prisoner currently incarcerated at
the Thumb Correctional Facility in Lapeer, Michigan, filed a
pro se petition for writ of habeas corpus under 28
U.S.C. § 2254, challenging his convictions for two
counts of first-degree criminal sexual conduct involving a
person under thirteen. Respondent, through the Attorney
General's Office, filed a response in opposition, and
Petitioner filed a reply. On the same day Petitioner filed
his reply, he filed the instant motions, seeking a correction
of the state court record and limited discovery. For the
reasons that follow, Petitioner's motions are
Motion to Correct the State Court Record 
to 28 U.S.C. §2254, “a determination of a factual
issue made by a State court shall be presumed to be correct,
” unless the petitioner rebuts the presumption of
correctness by “clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). Here, Petitioner asks the Court
to correct the Michigan Court of Appeals' summary of
facts, asserting that the court misstated the events leading
to his conviction. He cites to testimony from the trial court
transcripts to support his argument, and contends that this
is sufficient evidence to rebut the presumption that the
factual determinations made by the Court of Appeals were
argument is nearly identical to his reply brief. (See ECF No.
10 at 1-2.) The Court will address this argument when ruling
on his pending petition for writ of habeas corpus. If it is
compelling, the Court is entitled to take several actions,
including holding an evidentiary hearing. Rule 8, 28 U.S.C.
foll. § 2254. However, at this point in the proceedings,
Petitioner's duplicative motion is
DENIED without prejudice as premature.
Motion for Limited Discovery 
asserts that he is entitled to limited discovery to obtain
documents proving his actual innocence, specifically GPS
tracking data from his ankle monitor during the relevant
period. He contends that the GPS data will prove that he was
not at the locations on the dates on which the charged acts
occurred. The trial court addressed this issue in ruling on
Petitioner's motion for relief from judgment, stating in
Turning first to trial counsel's alleged failure to
conduct a thorough investigation to develop alibis, the
Information filed September 2, 2011 stated only that the
charged acts occurred sometime between December 29, 2010 and
May 4, 2011. The victim's trial testimony established
that multiple incidents occurred a t “ D o n n a '
s hou se” and one took place in the Duthler Foods
parking lot, but did not identify either the specific dates
or time of day on which the claimed sexual assaults occurred.
[Trial Tr, Vol II, pp 24-32]. “ T i m e is not of the
essence, nor is it a material element, in criminal sexual
conduct cases involving a child victim.” People v
Dobek, 274 Mich.App. 58, 83; 732 N.W.2d 546 (2007). The
jury was correctly instructed that the elements of first
degree criminal sexual conduct at issue required a
determination that the defendant engaged in a sexual act that
involved penetration with the victim between December 29,
2010 and May 4, 2011 and that the victim was under 13 years
of age when the act occurred. None of the possible alibis
suggested by defendant would have covered the entire
identified period; accordingly, attempting to develop an
alibi would have been pointless.
(ECF No. 9-20 at 3.)
habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary
course.” Bracy v. Gramley, 520 U.S. 899, 904
(1997). Rule 6 of the Rules Governing Section 2254 Cases
provides that a district court may authorize a party to
conduct discovery upon a showing of good cause. 28 U.S.C.
foll. § 2254, Rule 6(a). Rule 7 of the Rules Governing
Section 2254 Cases permits a court to allow the parties to
expand the record by “submitting additional materials
relating to the petition.” The decision whether to
allow expansion of the record under Rule 7 is left to the
discretion of the district court. Landrum v.
Mitchell, 625 F.3d 905, 923 (6th Cir. 2010). But when a
petitioner seeks habeas relief on a claim that has been
“adjudicated on the merits in state court proceedings,
” 28 U.S.C. § 2254(d)(1), federal court review
“is limited to the record that was before the state
court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
Petitioner's claims were adjudicated on the merits in
state court. The Court's review is, therefore, limited to
the record before it. Moreover, Petitioner has not
established good cause for the discovery, as the GPS data
would not prove his actual innocence for the entire period
between December 29, 2010 and May 4, 2011. The requested
discovery would be, in the words of the trial court,
pointless. The motion is therefore DENIED.