Andrew Thomas v. United States , 2017 FED App. 0046P ( 2017 )


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  •                            RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 17a0046p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    ANDREW LEE THOMAS, JR.,                                 ┐
    Petitioner-Appellant,    │
    │
    >      No. 15-6200
    v.                                               │
    │
    │
    UNITED STATES OF AMERICA,                               │
    Respondent-Appellee.      │
    ┘
    Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
    Nos. 2:98-cr-20100; 2:03-cv-02416—Jon Phipps McCalla, District Judge.
    Argued: November 2, 2016
    Decided and Filed: February 24, 2017
    Before: MERRITT, SILER, and DONALD, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Kevin Wallace, WINSTON & STRAWN LLP, New York, New York, for
    Appellant. Tony R. Arvin, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee,
    for Appellee. ON BRIEF: Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON &
    STRAWN LLP, New York, New York, for Appellant. Tony R. Arvin, UNITED STATES
    ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
    _________________
    OPINION
    _________________
    MERRITT, Circuit Judge. Petitioner Andrew Lee Thomas, Jr. appeals the district court’s
    order denying his habeas corpus petition under 28 U.S.C. § 2255 for relief from his federal court
    conviction. This case is a companion to Andrew L. Thomas v. Westbrooks, No. 15-5399 (6th Cir.
    No. 15-6200                         Thomas v. United States                             Page 2
    Feb. 24, 2017), which addresses Thomas’s habeas petition for relief from his state court
    conviction and sentence of death. These cases, while addressing similar facts, are different
    because the state case arises primarily from a violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). The Brady claim fails in the federal case due to the sequence of the trials. The Brady
    violation in the state case, that the government did not disclose that witness Angela Jackson had
    received compensation after her federal testimony, occurred after the conclusion of Thomas’s
    federal trial. Accordingly we AFFIRM the district court’s denial of the § 2255 motion.
    I. Background
    Thomas was convicted of robbing and shooting an armored car courier. On April 21,
    1997, Loomis-Fargo courier James Day was shot in the back of the head by Thomas during a
    pick-up. Thomas grabbed the money and checks that Day had been transporting and left the
    scene with another suspect, later identified as Anthony Bond. After fleeing the scene in a stolen
    Pontiac, they abandoned that vehicle and drove off in a red Suzuki which belonged to Thomas’s
    girlfriend at the time, Angela Jackson. Bond was later arrested on unrelated charges. Police
    subsequently matched Bond’s fingerprints to a fingerprint from the stolen Pontiac. Eventually
    Bond confessed to the Loomis-Fargo robbery and implicated Thomas. FBI agents questioned
    Angela Jackson, who was then separated from Thomas. Jackson implicated Thomas in the
    robbery and also disclosed that he used the crime’s proceeds to buy a Mossberg 12-gauge
    shotgun in violation of his felon status.
    During Thomas’s federal trial, the jury heard testimony from both Anthony Bond and
    Angela Jackson. After the federal trial concluded but before the state prosecution began, the FBI
    paid Jackson $750 on behalf of the Safe Streets Task Force—a joint federal-state law
    enforcement group charged with investigating and prosecuting gang-related crime.
    On November 13, 1998, the federal jury convicted Thomas of robbery affecting
    commerce in violation of 18 U.S.C. § 1951 (count one), using a firearm during a crime of
    violence in violation of 18 U.S.C. § 924(c) (count two), and being a felon in possession of a
    firearm in violation of 18 U.S.C. § 922(g) (count three). For these crimes he was sentenced as an
    armed career criminal to life imprisonment plus five years, to be followed by five years
    No. 15-6200                              Thomas v. United States                                          Page 3
    supervised release. On direct appeal, the Sixth Circuit affirmed. United States v. Thomas, 29 F.
    App’x 241 (6th Cir. 2002).1
    In 2003 Thomas filed an 18 U.S.C. § 2255 motion for habeas corpus relief. In the
    amended motion Thomas puts forward multiple ineffective assistance of counsel claims, and also
    argues that the government violated his due process rights as articulated in Brady v. Maryland by
    withholding evidence of a payment to witness Angela Jackson.
    II. Analysis
    A. Standard of Review
    This court reviews a district court’s dismissal of a § 2255 petition de novo, but will
    overturn a district court’s factual findings only if they are clearly erroneous. Braden v. United
    States, 
    817 F.3d 926
    , 929 (6th Cir. 2016). For a § 2255 motion to succeed, the petitioner must
    demonstrate error of constitutional magnitude which had a substantial and injurious effect or
    influence on the jury’s verdict. Griffin v. United States, 
    330 F.3d 733
    , 736 (6th Cir. 2003).
    B. Ineffective Assistance of Counsel as to Count Three (Felon-in-Possession)
    1. Failure to Request a Severance
    Thomas argues that his trial counsel erred by not moving to sever count three, felon-in-
    possession of a firearm, from the robbery counts. Specifically Thomas claims that his attorney
    should have filed a pretrial motion to sever count three as improperly joined under Federal Rule
    of Criminal Procedure 8(a) or filed a motion to sever due to prejudicial joinder under Rule 14(a).
    Thomas alleges that since a pistol formed the basis of counts one and two and a shotgun formed
    the basis of count three, it was improper to include count three in the indictment. Evidence was
    presented at trial that the shotgun forming the basis of count three was purchased with the
    proceeds from the robbery set forth in counts one and two, despite not being used during the
    1
    After Thomas’s federal court conviction, the armored car courier died as a result of his injuries suffered
    during the robbery. In 2005, Thomas was convicted in Tennessee state court for felony murder and sentenced to
    death. Tennessee v. Thomas, 
    158 S.W.3d 361
    , 417 (Tenn. 2005). The district court dismissed his habeas motion for
    relief from his state convictions. This court addresses his appeal of that decision in the companion case, and grants
    the petition. Thomas v. Westbrooks, No. 15-5399 (6th Cir. Feb. 24, 2017).
    No. 15-6200                        Thomas v. United States                                 Page 4
    robbery itself.   The Government argues that count three was not misjoined, and argues
    alternatively that any error was harmless.
    To prove deficient performance by counsel that violated the Sixth Amendment, Thomas
    must demonstrate that representation fell below an objective standard of reasonableness and that
    there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different. Strickland v. Washington, 
    466 U.S. 668
    , 688 (1984); Huff
    v. United States, 
    734 F.3d 600
    , 606 (6th Cir. 2013). A “reasonable probability” is a probability
    sufficient to undermine confidence in the outcome of a case, 
    Strickland, 466 U.S. at 694
    , and this
    court must “indulge a strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance.” 
    Id. at 689.
    Disputes of whether the counts of an indictment are to be joined or severed are governed
    by Federal Rules of Criminal Procedure 8 and 14. Rule 8(a) allows the joinder of two or more
    offenses in the same indictment or information if the offenses charged are “of the same or similar
    character,” “based on the same act or transaction,” or connected by a “common scheme or plan.”
    Fed. R. Crim. P. 8(a). Whether a joinder was appropriate under Rule 8(a) is determined by the
    allegations on the face of the indictment. United States v. Chavis, 
    296 F.3d 450
    , 456-57 (6th Cir.
    2002). Once a count has been joined, a district court may grant a Rule 14 motion to sever the
    count if the joinder “appears to prejudice a defendant.” Fed. R. Crim. P. 14. To prevail on a
    request for severance the defendant must show compelling, specific, and actual prejudice.
    United States v. Driver, 
    535 F.3d 424
    , 427 (6th Cir. 2008).
    In the present case, count three of the indictment is sufficiently related to the other counts
    of the indictment to warrant joinder. It is true that the purchasing of the shotgun was an event
    that took place three days after the armed robbery and shooting. However, the shotgun was
    illegally purchased with the proceeds of the armed robbery for the purpose of protecting property
    also bought with the same proceeds. The facts of the robbery are the facts that underlie the
    purchasing of the shotgun. The counts are not simply connected “in the abstract,” but are linked
    by time and purpose. See 
    Chavis, 296 F.3d at 458
    . Moreover, the trial evidence concerning the
    purchase of the shotgun was obtained in the process of investigating the robbery, and comes
    No. 15-6200                       Thomas v. United States                                Page 5
    from the same witness. Joinder is proper when the evidence of the counts is intertwined. See
    United States v. Hang Le-Thy Tran, 
    433 F.3d 472
    , 478 (6th Cir. 2006).
    Even if count three was not sufficiently related, there is little compelling evidence that
    the joinder prejudiced the defendant and denied him a fair trial. A defendant is prejudiced by a
    joinder if the jury cannot “keep the evidence from each offense separate and [is] unable to render
    a fair and impartial verdict on each offense.” United States v. Rox, 
    692 F.2d 453
    , 454 (6th Cir.
    1982). The purpose of Rule 8(a) is “to promote the goals of trial convenience and judicial
    efficiency.” United States v. Wirsing, 
    719 F.2d 859
    , 862 (6th Cir. 1983). Thomas fails to
    present compelling arguments that actual prejudice existed and outweighed the interests of the
    court. He does not articulate how a straightforward presentation of the evidence in the case
    would realistically confuse or prejudice a jury in issuing an impartial verdict. The arguments
    that “spillover evidence” from counts one and two convinced the jury to convict him of count
    three, and vice versa, are mere speculation, as is Thomas’s claim that his list of prior offenses
    from count three prejudiced the jury to change the verdict. A spillover of evidence between
    counts does not require severance unless there is “substantial,” “undue,” or “compelling”
    prejudice. United States v. Fields, 
    763 F.3d 443
    , 457 (6th Cir. 2014); see also United States v.
    Warner, 
    971 F.2d 1189
    , 1196 (6th Cir. 1992).
    The district court properly determined that the trial evidence demonstrated that the
    robbery and shooting were committed with a pistol, rather than with the shotgun in count three.
    No reasonable juror could have confused which of the two weapons was used in the robbery.
    Prejudicial joinder is especially unlikely when the jury can adequately “compartmentalize and
    distinguish the evidence concerning the different offenses charged.” United States v. Cody,
    
    498 F.3d 582
    , 587 (6th Cir. 2007) (quoting 
    Chavis, 296 F.3d at 462
    ). Moreover, the district
    court clarified during the reading of the indictment and jury instruction that the jury must
    consider each charge separately.
    Joining count three to the indictment promotes the interests of trial convenience and
    judicial efficiency. 
    Wirsing, 719 F.2d at 862
    . The “significant overlap of [] witnesses presented
    on each offense” and intertwining evidence also allow joinder here. 
    Tran, 433 F.3d at 478
    .
    Thomas’s speculations about the influence of count three on the jury are insufficient to show a
    No. 15-6200                         Thomas v. United States                                Page 6
    prejudicial effect from the joinder that his counsel would have been obligated to combat. As
    such Thomas’s counsel was not deficient in failing to request severance of the counts, since there
    is no reason to think it would have affected the outcome of the proceeding.
    2. Failure to Request a Limiting Jury Instruction
    Thomas argues that the jury instruction was not sufficient to limit prejudice resulting
    from the joinder of count three. The Government argues that the district court, as well as counsel
    for both sides, emphasized that the gun was purchased after the robbery, and that the jury
    instruction sufficiently informed the jury to distinguish the evidence underlying the counts.
    The district court jury instruction was as follows:
    The defendant in this case is charged with three crimes. The number of charges is
    no evidence of guilt and this should not influence your decision in this case in any
    way.
    It is your duty to separately consider the evidence that relates to each charge and
    to return a separate verdict for each one.
    For each charge, you must decide whether the government has presented proof
    beyond a reasonable doubt that the defendant is guilty of that particular charge.
    Your decision on one charge, whether it is ultimately guilty or not guilty, should
    not influence your decision on any of the other charges.
    This court has upheld similar jury instructions about overcoming the prejudicial effect of an
    improper joinder. See 
    Cody, 498 F.3d at 588
    ; see also 
    Chavis, 296 F.3d at 462
    . Misjoinder is
    almost always harmless if the court issues a careful limiting instruction to the jury concerning
    possible prejudice. 
    Cody, 498 F.3d at 587
    .
    Beyond speculation there is no evidence supported by the trial record that the jury was
    confused about the nature of the firearm counts. Thomas is unable to show a reasonable
    probability that the result of the trial would have been different had his counsel attempted to limit
    the jury instruction.
    C. Ineffective Assistance of Counsel for Failure to Present Evidence
    that Another Individual Committed the Offense
    Thomas contends that his counsel should have better investigated and presented evidence
    that Bobby Jackson was actually the getaway driver and Anthony Bond committed the robbery.
    No. 15-6200                        Thomas v. United States                                Page 7
    Most of Thomas’s arguments for this strategy are plausible, but legitimate reliability and
    admissibility concerns prevent Thomas from demonstrating that the decision not to pursue this
    strategy was unreasonable or prejudiced the outcome of the case. See 
    Strickland, 466 U.S. at 688-89
    .
    Thomas puts forward multiple arguments of varying strength that the robbery was
    actually committed by Jackson and Bond.           First, he argues that defense counsel did not
    sufficiently emphasize at trial that Bobby Jackson was identified as the driver of the getaway
    vehicle on two separate occasions by a witness to the crime, Robert Fisher. Both identifications
    were made to the FBI based on a photographic array several months after the incident. At trial,
    defense counsel called Fisher and asked him to testify to the identification he made during the
    investigation. But during the testimony Fisher admitted that he could not definitively identify
    the driver or identify him in the courtroom: “Well, I was asked can you identify anybody. I told
    them at the time I couldn’t definitely. I could say that one of them looked like the guy that I saw
    driving.”
    Thomas claims that his counsel should have emphasized during Fisher’s testimony that
    Fisher identified the same picture in the photo array on two separate occasions, and that defense
    counsel should have elicited the fact from Fisher that the person in the photo was Bobby
    Jackson. As the district court noted, the information was cumulative to the testimony that had
    been presented, and the language used by Fisher when he viewed the photo array was
    inadmissible as hearsay. Moreover, defense counsel could not have elicited from Fisher that the
    name of the person he identified was Bobby Jackson, as Fisher lacked any personal knowledge
    of Bobby Jackson. It is unclear what additional value Robert Fisher might have been able to
    provide to the credibility of Thomas’s defense.
    Second, Thomas claims his counsel failed to present the eyewitness testimony of Gail
    McDonald, and alleges that McDonald’s description in her FBI statement of one of the suspects
    as “heavyset” and “wearing blue jeans” does not match Thomas. But McDonald’s testimony
    would still have hurt Thomas. While she described one suspect as “heavyset,” she described the
    other suspect’s attributes fairly closely to Thomas’s appearance. It is probable that Thomas’s
    counsel might have found McDonald’s testimony damaging to his client and decided not to call
    No. 15-6200                        Thomas v. United States                               Page 8
    her. Thomas also makes cursory references to “numerous eye witnesses” like McDonald that he
    suggests would have been helpful for the Bobby Jackson defense, all of which the district court
    properly identifies as unhelpful or even harmful to the defense.
    Third, Thomas identifies a letter that he allegedly received from Anthony Bond as proof
    that counsel should have more thoroughly investigated Bobby Jackson. The letter declares that
    Bond and Angela Jackson lied about Thomas’s involvement in the Walgreens robbery in order to
    protect Bobby Jackson, because Angela Jackson and Bobby Jackson had been in a romantic
    relationship when Angela was seeing Thomas. The evidence below shows the letter to be a
    forgery written after Thomas’s federal convictions.         Bond, through his post-conviction
    representation, has denied writing the letter. At trial the Government produced handwriting
    expert testimony that concluded the letter was a forgery. Even if the letter was not a forgery,
    “this court views with great suspicion the recantation testimony of trial witnesses in post-
    conviction proceedings.” Brooks v. Tennessee, 
    626 F.3d 878
    , 897 (6th Cir. 2010). While it is
    possible that evidence of a romantic relationship with Bobby Jackson might have drawn
    Angela’s credibility further into question, the district court found the testimony of witnesses to
    the romantic relationship extremely suspect.
    Finally, Thomas argues that his counsel should have introduced evidence that Bobby
    Jackson had committed an armored car robbery at Southbrook Mall three months after the
    Walgreens robbery.     The district court found that these two robberies were significantly
    different, and that there was no real evidence linking Jackson to the Walgreens robbery.
    Potential evidence that inmate Stephen Briscoe claimed Jackson had admitted committing other
    robberies offered no connection to the Walgreens robbery.
    The claim that Thomas’s counsel should have more aggressively pursued the “Bobby
    Jackson” strategy is questionable at best. All of the potential evidence Thomas presents of
    Bobby Jackson’s involvement is riddled with reliability and admissibility issues. Thomas fails to
    produce compelling evidence that his counsel was deficient in not presenting more evidence of
    Bobby Jackson as a suspect, and he fails to demonstrate prejudice resulting from the alleged
    deficiency.
    No. 15-6200                          Thomas v. United States                              Page 9
    D. Ineffective Assistance of Counsel for Failure to Investigate Alibi Testimony
    The parties disagree as to whether this claim has been waived. In his initial brief on
    appeal, Thomas dedicates one footnote to the claim. Even if Thomas properly presented this
    claim, it is meritless. At trial the Government effectively rebutted testimony that the alibi
    witness, Thomas’s girlfriend Dana Wiggins, was with Thomas at the time of the robbery by
    proving that Wiggins was lying. Before the trial, Thomas’s counsel interviewed Wiggins and
    Thomas multiple times, and warned them of the harms in presenting a false alibi defense.
    Thomas’s counsel also interviewed Thomas’s mother, who corroborated Wiggins’s story. The
    district court is correct that Thomas was entitled to a competent defense, but not a perfect one.
    Crehore v. United States, 127 F. App’x 792, 796 (6th Cir. 2005). Thomas’s counsel was not
    deficient in failing to protect a client from the client’s own deceit.
    E. Ineffective Assistance of Counsel for “Cumulative Errors”
    Whether an attorney’s representation amounted to incompetence is a question of whether
    the attorney adhered to “prevailing professional norms,” and not whether it deviated from best
    practices or most common custom. Harrington v. Richter, 
    562 U.S. 86
    , 105 (2011). As such,
    “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 
    559 U.S. 356
    ,
    371-72 (2010). While it is true that multiple errors by trial counsel can cumulatively result in a
    Sixth Amendment violation, this is not the case at hand. See Campbell v. United States, 
    364 F.3d 727
    , 736 (6th Cir. 2004). Individually, each of Thomas’s Sixth Amendment claims fail, and
    bundling them together does not increase their merit. See 
    id. Thomas argues
    that his trial attorney committed multiple errors, which cumulatively
    result in a violation of his right to effective counsel. The alleged errors include those discussed
    above: (i) failure to move to sever Count Three; (ii) failure to request a limiting instruction;
    (iii) failure to investigate and present the “Bobby Jackson” defense; and (iv) failure to
    sufficiently investigate the alibi testimony. Thomas then adds: (v) failure to present exculpatory
    evidence promised during the opening statement; and (vi) failure to object to the Government’s
    repeated showing of the surveillance video that had little probative value, but was highly
    prejudicial to Thomas.
    No. 15-6200                               Thomas v. United States                                      Page 10
    Thomas’s arguments concerning the opening statement and the failure to object are not
    sufficiently supported to prove a Sixth Amendment claim. Thomas does not articulate how these
    actions specifically were deficient or how they specifically prejudiced the outcome of the case.
    Instead, they are tacked on to a list of the failed ineffective assistance of counsel arguments. A
    party waives issues that he adverts to in a perfunctory manner, unaccompanied by some effort at
    developed argumentation. United States v. Fowler, 
    819 F.3d 298
    , 309 (6th Cir. 2016). All of the
    cumulative errors Thomas cites are either waived or fail.
    F. Brady Claim
    Thomas asserts that his due process rights were violated when federal prosecutors did not
    disclose that Angela Jackson had been compensated for her testimony. See 
    Brady, 373 U.S. at 87
    . At the district court, Thomas’s Brady claim was denied in a non-final order. As the order
    was non-final, it was unnecessary at that time for the district court to indicate whether it granted
    a Certificate of Appealability (COA) for the claim. When the court determined in its final order
    which claims were or were not granted a COA, it did not address the Brady claim. Thomas
    eventually requested a COA on the issue of whether he was precluded from pursuing his Brady
    claim, which was granted. This court may elect to consider claims that both parties have
    extensively briefed. United States v. Martin, 
    438 F.3d 621
    , 628 (6th Cir. 2006). The district
    court’s failure to address the appealability of the Brady claim appears to be an oversight.
    Thomas did not intend to waive his claim, nor is the Government prejudiced by allowing the
    claim to be presented.2 The COA granted by this court was proper, and the Brady claim
    concerning Angela Thomas’s testimony is not precluded.3
    Although Thomas’s remaining Brady claim is not waived, it ultimately fails on the
    merits. Under Brady, Thomas must show that the Government failed to share evidence favorable
    to the accused, and that the suppression of evidence prejudiced the defendant. Montgomery v.
    Bobby, 
    654 F.3d 668
    , 678 (6th Cir. 2011) (en banc). Thomas claims that the Government failed
    2
    The Government requested that this court hear the Brady claim on the merits in the interest of judicial
    economy.
    3
    While Thomas’s Brady claim as to Angela Jackson’s testimony is not waived, Thomas has waived the
    Brady claim argued at the district court that the Government did not disclose evidence of eyewitness Gail McDonald
    failing to identify Thomas in a photo array. As that argument is not presented in Thomas’s brief, it is waived.
    No. 15-6200                       Thomas v. United States                              Page 11
    to disclose evidence that it intended to pay Angela Jackson for her federal testimony. Angela
    Jackson did receive $750 after Thomas’s federal trial. Brady requires the disclosure of all
    material evidence to the defendant even if the evidence is only relevant for the purpose of
    impeaching government witnesses at trial. Bell v. Bell, 
    512 F.3d 223
    , 232 (6th Cir. 2008) (en
    banc) (citing United States v. Bagley, 
    473 U.S. 667
    , 676-77 (1985)). A defendant has the
    constitutional right to impeach a witness by showing bias. Robinson v. Mills, 
    592 F.3d 730
    , 737
    (6th Cir. 2010).
    The timing of the payment to Angela Jackson, which took place after the federal trial but
    before the state trial, causes Thomas’s federal Brady claim to fail. U.S. Marshal Scott Sanders,
    who was part of the Safe Streets Task Force, submitted an affidavit that Angela Jackson had not
    been informed ahead of time that she would be compensated for her cooperation or that she was
    at risk of facing prosecution for assisting Thomas. While Sanders previously stated during an
    evidentiary hearing conducted by the district court that he believed Angela Jackson was
    informed during the investigation that she might have potential criminal liability, he also stated
    that no one suggested to Jackson that she would be subject to arrest. Sanders subsequently stated
    that investigators did not anticipate, plan, or discuss with Angela Jackson a payment to be made
    to her after the federal trial.
    Thomas is unable to present evidence that Angela Jackson had knowledge before her
    federal testimony that she would receive the money, or that she made a deal to testify in lieu of
    being prosecuted. Thomas argues that the circumstance of her not being prosecuted gives rise to
    the presumption that a “deal” was made with Jackson before the trial. But this inference alone is
    insufficient basis for a Brady claim. See Jefferson v. United States, 
    730 F.3d 537
    , 552 (6th Cir.
    2013); Mathews v. Ishee, 
    486 F.3d 883
    , 895 (6th Cir. 2007) (explaining that an inference that the
    prosecution must have made a pre-trial deal with a witness in exchange for testimony is itself
    insufficient basis for a Brady claim). Nor does the fact that a witness was later compensated for
    her testimony give rise to a sufficient presumption for a Brady claim. 
    Bell, 512 F.3d at 234
    . If
    the Government had the ability or obligation to disclose to Thomas the eventual compensation, it
    is plausible that the withholding of evidence might have affected the outcome of the case. But
    No. 15-6200                        Thomas v. United States                              Page 12
    during the federal trial the Government had no obligation to disclose to the defendant whether it
    was considering the eventual payment to Jackson.
    Finally, Thomas appeals the district court’s denial of his request for additional discovery
    on the Brady claim. Here again the district court did not abuse its discretion, as the movant was
    unable to show good cause for more discovery. See Williams v. Bagley, 
    380 F.3d 932
    , 974 (6th
    Cir. 2004). Rule 6(a) of the Rules Governing § 2255 Proceedings allows the district court to
    enable further discovery in a habeas proceeding 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 confined illegally and is therefore entitled to relief. Harris v. Nelson, 
    394 U.S. 286
    ,
    300 (1969); Cornell v. United States, 472 F. App’x 352, 354 (6th Cir. 2012). Thomas’s request
    for discovery fails for much the same reason that his Brady claim fails on the merits. Beyond
    mere speculation, Thomas provides no evidence that the Government withheld evidence that it
    was obligated to disclose. Bald assertions and conclusory allegations do not provide sufficient
    ground to warrant requiring the government to respond to discovery or to require an evidentiary
    hearing. Stanford v. Parker, 
    266 F.3d 442
    , 460 (6th Cir. 2001).
    Accordingly the district court’s denial of the writ is AFFIRMED.