                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0350n.06
                               Filed: May 18, 2007

                                                  No. 06-3833

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


MAHAD H. SAMATAR,                                                     )
    Plaintiff - Appellant,                                            )
                                                                      )
v.                                                                    )   On Appeal from the
                                                                      )   United States District Court
MARK CLARRIDGE, Warden                                                )   for the Southern District of Ohio
    Defendant - Appellee.                                             )
                                                                      )




BEFORE:          SUHRHEINRICH and GIBBONS, Circuit Judges; HEYBURN,* Chief District
                 Judge

        JOHN G. HEYBURN II, Chief District Judge. This is an appeal of the denial of a petition

for habeas corpus. Mahad H. Samatar was found guilty in Ohio state court of possession of

cathinone, a Schedule I controlled substance under Ohio law. Samatar was in possession of a shrub

known as khat, which has been known to contain the controlled substances cathinone and cathine.

At trial, the state’s expert revealed that upon testing of the plant material, he discovered substantial

amounts of cathinone but no cathine. Such a test result appears scientifically improbable, and

Samatar has claimed that the state’s sole test establishing an element of his crime is invalid, and he

was denied effective assistance of counsel. After exhausting appeals and remedies in state court,

Samatar filed his federal habeas corpus petition. He now appeals the dismissal of that petition. For


        *
         The Honorable John G. Heyburn II, United States Chief District Judge for the W estern District of
Kentucky, sitting by designation.
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the reasons explained below, we will affirm the district court.

                                                          I.

         On February 15, 2001, Mahad H. Samatar arrived at a Federal Express location in Columbus,

Ohio, and presented the tracking number for a package. Unbeknownst to Samatar, the Columbus

police department had been alerted to the arrival of the package, from which brownish-red stems of

vegetation were protruding. Believing the vegetation to be khat (pronounced “cot”), the police had

arranged for the package to be picked up under controlled conditions. Samatar signed the name

“John Goodman” on the signature record and took possession of the package. He was subsequently

arrested, and the package was seized and submitted for analysis to the laboratory at the Ohio Bureau

of Criminal Investigation (“BCI”).

         Khat, or “catha edulis,” is a shrub which grows wild and as a cash crop in Kenya, Somalia,

Yemen, and other countries in Northeastern Africa.1 Its leaves are chewed or brewed into a tea, and

it is estimated that approximately 60 to 70 percent of Somalis chew or drink khat on a regular basis.

Khat has been known to contain the psychoactive chemical cathinone, a stimulant. Cathinone is

listed as a Schedule I controlled substance under Ohio law. See Ohio Rev. Code Ann. § 3719.41,

Schedule I, (E)(2). Khat also contains the less potent stimulant, cathine, a Schedule IV controlled



         1
             Samatar testified that he immigrated in 1998 from Somalia, where he claims it is a cultural tradition to
chew khat at weddings. He said that the khat at issue was sent to the United States by a resident in London named
“Abdid” for use at a Somali wedding ceremony. According to Samatar, Abdid had told him the control number of
the package but not the name on the package, and when the package was brought to him he noticed the name written
on it and signed the log with that name. He further testified that the khat was harvested in Kenya and shipped to
London by airplane, probably after a delay of several days. Samatar further claimed that there is no stimulant effect
in khat, it is not illegal in Somalia, he had never heard of cathinone, and he was unaware that khat contained
cathinone. He agreed that khat is sold in the Columbus Somali community for $20 to $40 a bundle.
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substance under Ohio law. See Ohio Rev.Code Ann. § 3719.41, Schedule IV, (D)(1).

       Gregory Kiddon, a forensic scientist with over 20 years of experience at BCI, conducted a

chemical analysis of the seized plant material. Plant samples were removed from the boxes on

February 16, 2001, and frozen until the chemical analysis was performed on July 24, 2001. Kiddon

prepared a report of his findings that was submitted by the State into evidence at trial. According

to the report, all samples were found to contain cathinone. Kiddon further testified that he found no

cathine in any of the samples.

                                                 A.

       Samatar was indicted by the Franklin County Grand Jury for two counts of Aggravated

Possession of Drugs pursuant Ohio Rev. Code Ann. § 2925.11. Count I of the indictment alleged

that Samatar “did knowingly obtain, possess, or use a controlled substance included in Schedule I,

to wit: Cathinone, commonly known as Khat, in an amount equal to or exceeding one hundred times

the bulk amount as defined in section 2925.01 of the Ohio Revised Code.” Count 2 was an identical

allegation in regards to cathine. The State later dismissed the second count alleging possession of

cathine.

       Samatar waived jury and was tried by the trial court. Defense counsel attempted to impeach

Kiddon’s testimony with an article issued by the United States Department of Health and Human

Services, entitled “Basis For The Recommendation For Control of Cathinone Into Schedule I Of The

Controlled Substances Act” (“HHS Report”).            Kiddon acknowledged that the article was

authoritative. The report expressed the opinion that 100 grams of fresh khat is estimated to contain
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36 mg of cathinone and 120 mg of cathine, among many other chemicals. According to the report,

within 72 hours of harvest, the naturally occurring cathinone rapidly decomposes into cathine. The

report further stated that fresh khat contains 100 times more cathinone than dried khat.

        Kiddon acknowledged the foregoing information contained within the report. He testified

that he had frozen the plant material until the chemical analysis could be performed because he was

aware that in the cathinone-to-cathine conversion process, some of the plant’s phychotropic potency

was lost. When pressed about his finding that the samples he tested contained cathinone, but no

cathine, Kiddon admitted that he was surprised by the results but remained firm in his conviction that

his chemical analysis was correct. Specifically, Kiddon stated that he could not “find any peaks that

I could identify as cathine,” and rejected defense counsel’s suggestion that he misidentified cathine

as cathinone.

        Following trial, the court found Samatar guilty of possessing cathinone. In addition, the

Court found that the amount possessed was over one hundred times the bulk amount, and Samatar

was sentenced to a mandatory ten years imprisonment.

                                                       B.

        Samatar timely filed a Motion for New Trial, claiming that the State’s expert evidence

regarding the “no cathine” finding was scientifically impossible and the result of faulty testing

methodology by Kiddon.2 Attached to the motion was an affidavit of Dr. Michael Jon Kell, MSChE

MD PhD, in which he challenged the result and methodology of Kiddon’s chemical analysis. Also


        2
         The December 14, 2001, Motion for New Trial was filed jointly by Samatar’s original trial attorney
Sidney Moore and new counsel Carol W right.
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attached was a second affidavit from trial counsel, Sidney Moore. Moore stated that when the State

dismissed the fourth degree felony possession of cathine charge, he believed the state was merely

making a choice to avoid issues of double jeopardy. He had been totally surprised by the testimony

of the State chemist that he had found no cathine but actually tested for it. The trial court denied the

Motion for New Trial, and Samatar timely appealed to the state appellate court. The appellate court

affirmed the conviction and sentence of Samatar, and the Ohio Supreme Court declined to accept

jurisdiction.

         While the direct appeal to the state appellate court was pending, Samatar, through counsel

Wright, filed a petition for postconviction relief in the trial court pursuant Ohio Rev. Stat. Ann. §

2953.21, raising six claims of ineffective assistance of counsel.3 The petition was supported by two

affidavits; one from Attorney Richard Ketcham outlining how trial counsel’s performance was

unreasonable and fell below prevailing professional norms and one from Dr. Alfred Staubus

outlining the problems with distinguishing between cathinone and cathine, the inability to quantify

the chemicals and the problems of using a gas chromatograph as well as what assistance he could

have provided trial counsel. Additional documentary support included articles about khat and the

difficulty in distinguishing the chemicals, as well as the problems with using a gas chromatograph

to distinguish the chemicals. The trial court denied the petition, and Samatar, through Wright,


         3
           Samatar complains that his trial counsel, Georgia attorney Sidney L. Moore, Jr., was constitutionally
ineffective. Interestingly, Moore, who was granted pro hac vice status in Samatar’s Ohio case, is very experienced in
the defense of khat possession cases, having defended such cases in at least eleven states, including: Georgia,
Kansas, Maine, Maryland, Michigan, New York, North Carolina, Ohio, Tennessee, Texas, and Virginia. See State v.
Roble, No. L-04-1374, 2006 W L 205101 at *2 (Ohio Ct. App. January 27, 2006). In fact, Moore has successfully
represented a petitioner-appellant before this Court in a federal khat possession case. See U.S. v. Caseer, 399 F.3d
828 (6th Cir. 2005) (conviction reversed and remanded for further proceedings).
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appealed the denial. The appellate court affirmed the denial of postconviction relief. Samatar,

through Wright, appealed to the Ohio Supreme Court. The Court denied leave to appeal and

dismissed the appeal as not involving any substantial constitutional question.

       On November 22, 2004, Samatar, through counsel Wright, filed the instant Petition for Writ

of Habeas Corpus and a Motion for Discovery. Respondents filed responses to both. The Magistrate

Judge issued an Opinion and Report and Recommendations recommending that the action be

dismissed, and that Petitioner’s request for discovery and evidentiary hearing be denied. Samatar

filed Objections, but the District Court issued an opinion and Order Adopting and Affirming the

Report and Recommendations and dismissed the petition. Samatar, through counsel Wright, filed

a notice of appeal and a motion for certificate of appealability, which was granted by the District

Court on May 16, 2006.

                                                 II.

       When reviewing the denial of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, this

Court considers the district court’s legal conclusions de novo. Carter v. Bell, 218 F.3d 581, 590 (6th

Cir. 2000). “Factual determinations are generally reviewed for clear error, ‘except where the district

court has made factual determinations based on its review of trial transcripts and other court

records.’” Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (citing Mackey v. Russell, 148 Fed.

App'x 355, 359 (6th Cir. 2005)). “In such cases, because no credibility determination or findings

of fact are required, factual conclusions are reviewed de novo.” Id. (citing Wolfe v. Brigano, 232

F.3d 499, 501 (6th Cir. 2000)). In reviewing habeas petitions, we afford a state court's factual
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determinations a presumption of correctness. But, they may be rebutted by clear and convincing

evidence. Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005); 28 U.S.C. § 2254(e)(1) (providing that

“[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a factual issue made by a State court

shall be presumed to be correct”). The district court’s decisions denying discovery and an

evidentiary hearing are reviewed under an abuse of discretion standard. Abdus-Samad v. Bell, 420

F.3d 614, 626 (6th Cir. 2005).

        Samatar certified four issues on appeal: (1) whether he was denied effective assistance of

counsel, (2) whether the evidence was insufficient to sustain his conviction, (3) whether the affidavit

of Dr. Staubus may be considered in support of his claim for ineffective assistance of counsel, and

(4) whether he should be granted discovery or an evidentiary hearing. We will consider each in turn.

                                                  III.

        Samatar claims ineffective assistance of counsel because his attorney failed to question the

State’s chemist prior to trial regarding his lab report, failed to submit into evidence any “substantive

evidence” of the chemical composition of khat, failed to call an expert witness to discredit the State’s

chemist, and failed to request a continuance when he was surprised by the chemist’s testimony that

the khat material contained no cathine.

        In support of this claim, Samatar points to an affidavit of his trial attorney which states in

relevant part that Moore believed that the “cathine” charge had been dropped because the state chose

to go with the Schedule I substance rather than the Schedule IV substance to avoid the problems of
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double jeopardy. Moore says that he was totally surprised by Kiddon’s testimony that he had found

cathinone but no cathine in the plant samples. Samatar also relies on the affidavits of proposed

expert witnesses Dr. Michael Kell and Dr. Alfred Staubus expressing their professional opinions that

the results of the BCI test indicate a mistaken testing methodology.

       A claim of ineffective assistance of counsel comprises two elements: (1) the attorney’s

performance was deficient, falling below an objective standard of reasonableness; and, (2) the

attorney’s deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

688 (1984). “Because of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered a trial strategy.” Id. at 689. “Judicial scrutiny of a counsel's

performance must be highly deferential” and every effort must be made “to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate

the conduct from counsel's perspective at the time.” Bell v. Cone, 535 U.S. 685, 698 (2002) (citing

Strickland, 466 U.S. at 689).

                                                  A.

       To prevail on the deficiency prong, a petitioner must show that counsel’s performance fell

below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Where counsel has

failed to investigate, his decisions will be deemed reasonable only to the extent that they are

supported by reasonable investigation. See Wiggins v. Smith, 539 U.S. 510, 533 (2003) (holding that
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a decision not to investigate must be directly assessed for reasonableness in all circumstances).

Some courts have held that the duty to investigate includes the duty to consult and retain all

reasonably necessary experts. See, e.g., Horsely v. State of Alabama, 45 F.3d 1486, 1494-95 (11th

Cir. 1995).

       The Ohio Court of Appeals was satisfied that Moore adequately performed such duties and

that his actions were part of a reasonable trial strategy. We agree with the Ohio court’s analysis of

Moore’s trial performance. The fact that defense counsel did not interview the prosecution’s expert

witness Kiddon may be explained by reasonable trial tactics. A pretrial interview could alert the

witness to particular lines of questioning for which he could further prepare before trial. Thus,

pretrial questioning could rob a cross-examination at trial of some of its force. In fact, defense

counsel thoroughly cross-examined Kiddon on his “no cathine” finding using an authoritative article

on khat. Although defense counsel asserted in an affidavit that he was “totally surprised” by the

expert’s testimony, his surprise at trial does not make his strategy unreasonable, and such hindsight

would be inappropriate under Strickland. 466 U.S. at 688.

       Moreover, Moore’s failure to seek a continuance after the supposed surprise does not make

defense ineffective. In reviewing a claim of ineffective assistance of counsel, courts should decline

second-guessing an attorney's trial strategy. State v. Williams, 600 N.E.2d 298, 304 (Ohio Ct. App.

1991). The decision whether to call a witness is generally a matter of trial strategy and, absent a

showing of prejudice, the failure to call a witness does not deprive a defendant of effective assistance

of counsel. Id. Further, the failure to call an expert and instead rely on cross-examination does not
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constitute ineffective assistance of counsel. State v. Hartman, 754 N .E.2d 1150, 1177 (Ohio 2001).

In fact, in many criminal cases trial counsel's decision not to seek expert testimony “is

unquestionably tactical because such an expert might uncover evidence that further inculpates the

defendant.” State v. Glover, No. CA2001-12-102, 2002 WL 31647905 at *5 (Ohio Ct. App. Nov.

25, 2001). “Further, even if the wisdom of such an approach is debatable, ‘debatable trial tactics'

do not constitute ineffective assistance of counsel.” Id. (quoting State v. Clayton, 402 N.E.2d 1189

(Ohio 1980)). We will not second-guess Moore’s trial tactics in these circumstances. His

performance meets an objective standard of reasonableness. His representation of Samatar was not

constitutionally deficient.

                                                B.

       Nor did Moore’s performance prejudice Samatar. To satisfy the prejudice requirement, an

ineffective assistance claimant “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694.

       The record does not demonstrate that Kiddon’s finding of cathinone was inherently wrong.

Instead, as recognized by the state courts, Kiddon could have legitimately found cathinone while

being mistaken about cathine. The record does not demonstrate that additional testimony by an

expert such as Dr. Kell or Dr. Staubus would have cast any more doubt on Kibbon’s test results than

the HHS study impeachment evidence or Moore’s cross-examination. The credibility determination
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by state courts of which expert to believe, is not reviewable by a habeas court. Walker v. Engle, 703

F.2d 959, 969-70 (6th Cir. 1983), cert. denied, 464 U.S. 962 (1983).

          Samatar may now wish that his trial counsel had employed a different strategy, but that does

not mean that he was denied effective counsel. Moore cross-examined the state’s witness with great

skill and effect. Unfortunately, the court believed enough of Kiddon’s testimony to find Samatar

guilty.

                                                  IV.

          Samatar next argues that he was deprived of his Constitutional right to due process because

his conviction for aggravated possession of a controlled substance, to wit, cathinone, in an amount

over one hundred times the bulk amount, was not supported by sufficient evidence. The Due Process

Clause of the Fourteenth Amendment prevents a state from convicting a person of any crime without

proving the elements of that crime beyond a reasonable doubt. Fiore v. White, 531 U.S. 225, 228-29

(2001) (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979)). We must consider not whether there

was any evidence to support a state-court conviction, but whether there was sufficient evidence to

justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 316

(citing In re Winship, 397 U.S. 358, 364 (1970)). Such evidence must be viewed in the light most

favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at

319). The prosecution is not affirmatively required to “rule out every hypothesis except that of

guilt.” Id. (quoting Jackson, 443 U.S. at 326).

          Samatar argues that Kiddon’s testimony, which was the only direct evidence that he was ever
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in possession of cathinone, reveals that the BCI testing was flawed and fails to prove a critical

element in the offense for which Samatar was convicted. The state’s test results for cathinone appear

to be improbable. We question why the prosecution presented such evidence rather than perform

additional tests on the khat. However, in reviewing the sufficiency of the evidence claim, we must

defer to the trier of fact with respect to issues of conflicting testimony, weight of the evidence, and

the credibility of witnesses. Jackson, 443 U.S. at 319; Walker, 703 F.2d at 969. Kiddon maintained

that his finding was correct, even if his finding of no cathine was flawed. His strong testimony

created sufficient evidence to justify a rational trier of fact in finding the khat in Samatar’s

possession contained a high level of cathinone. Since a reasonable trier of fact could find guilt

beyond a reasonable doubt, there is no basis for this Court to overturn that finding.

       Samatar further argues that Kiddon’s testimony would have been inadmissible under Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This argument, which was never

presented to the state courts and first presented in Samatar’s habeas petition, is inapplicable. When

asked by the trial court, Moore had no objection to Kiddon being qualified as an expert. Moreover,

the Daubert issue was not certified for appeal.

                                                  V.

       Appellant argues that the Ohio trial court erred when it barred his ineffective assistance of

counsel claims in his petition for post conviction relief. In support of those claims, he attached the

affidavit of Dr. Alfred Staubus, a chemist who suggests that the BCI laboratory misidentified cathine

for cathinone and attacks the validity of the Kiddon’s lab report. The trial court applied the doctrine
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of res judicata because the court of appeals had considered and ruled on the same issue. Under the

doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising

and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed

lack of due process that was raised or could have been raised by the defendant at the trial which

resulted in that judgment of conviction or on an appeal from that judgment. State v. Szefcyk, 671

N.E.2d 233, 235 (Ohio 1996) (discussing State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967)).

        Samatar argues that res judicata should not apply because Ohio law prohibited supporting

affidavits during his first and only opportunity to litigate the ineffective assistance of counsel claim.

Ohio appellate courts are strictly limited to considering matters that appear in the record from the

trial. State v. Ishmail, 377 N.E.2d 500, 502 (Ohio 1978). He could not have argued the claim at an

earlier stage, such as in his motion for new trial, because he was still represented by Moore on that

motion, and Ohio law prohibits counsel from raising claims of his own effectiveness. See State v.

Lentz, 640 N.E.2d 839 (Ohio1994). Thus, he argues, even though he had the opportunity to raise

claims of ineffective assistance of counsel on direct appeal, the post conviction petition was the first

opportunity he had to supplement the record on such a claim.

        If petitioner’s trial counsel had remained as counsel during the direct appeal, res judicata

would not apply. Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000) (holding that post conviction

claims for ineffective assistance of counsel will not be barred on res judicata grounds when such

claims were not brought on direct appeal because petitioner’s trial counsel continued to represent

him on direct appeal), cert. denied, 531 U.S. 1035 (2000); Lorraine v. Coyle, 291 F.3d 416, 425 (6th
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Cir. 2002) (holding that “although Ohio courts generally require defendants to raise ineffective

assistance of trial counsel claims on direct appeal, (citation omitted), as the district court ruled, the

default is not necessarily fatal here because one of Petitioner’s trial counsel remained on the direct

appeal team”). However, in this case, Samatar’s trial counsel Moore was not counsel during the

direct appeal, and Samatar actually litigated his claim of ineffective assistance of counsel.

        In Ohio, claims of the denial of the effective assistance of counsel cannot be considered in

post conviction proceedings where they were or could have been fully litigated, see Perry, 226

N.E.2d at 108, unless they are dependent on matters outside the record. See Ohio Rev. Code §

2953.21 et. seq.; and see State v. Keith, 684 N.E.2d 47, 67 (Ohio 1997); State v. Madrigal, 721

N.E.2d 52 (Ohio 2000). Samatar’s ineffective assistance claim is not dependant upon matters

outside the record because the Staubus affidavit merely supports arguments already made in the

record, i.e., that the prosecution’s test for cathinone was invalid. Such arguments do not create a new

and separate claim. Accordingly, we conclude that the district court properly applied res judicata

to Samatar’s claims for ineffective assistance of counsel and Staubus’s affidavit. As noted by the

state court and the Magistrate Judge in his Report and Recommendation, “the fact that [Samatar]

now attaches additional evidence in support of his claims does not make the doctrine of res judicata

inapplicable. [Samatar] cannot simply continue submitting additional evidence in support of his

arguments on multiple occasions.”

                                                  VI.

        Samatar argues that regardless of whether res judicata was properly applied by the state
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court, the Staubus affidavit should be considered in the federal habeas proceedings through either

an evidentiary hearing or additional discovery. We do not find that either is appropriate in these

circumstances.

                                                   A.

       An evidentiary hearing will be appropriate only if the “respondent was not at fault in failing

to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by §

2254(e)(2) were met.” Holland v. Jackson, 542 U.S. 649, 652-53 (2004). Therefore, the affidavit

may be considered in habeas through an evidentiary hearing only if Samatar satisfies the two-part

test contained in 28 U.S.C. § 2254(e):

                 (2) If the applicant has failed to develop the factual basis of a claim
                 in State court proceedings, the court shall not hold an evidentiary
                 hearing on the claim unless the applicant shows that -
                          (A) the claim relies on -
                                  (i) a new rule of constitutional law, made retroactive
                                  to cases on collateral review by the Supreme Court,
                                  that was previously unavailable; or
                                  (ii) a factual predicate that could not have been
                                  previously discovered through the exercise of due
                                  diligence; and
                          (B) the facts underlying the claim would be sufficient to
                          establish by clear and convincing evidence that but for
                          constitutional error, no reasonable factfinder would have
                          found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e). To merit an evidentiary hearing in habeas under § 2254(e), petitioner must

have been diligent by seeking an evidentiary hearing “in state court in the manner prescribed by state

law.” Williams v. Taylor, 529 U.S. 420, 437 (2000). Section 2254(e) requires that the factual

predicates could not have been discovered through the exercise of due diligence.
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               [The prisoner must make a reasonable attempt,] in light of the
               information available at the time, to investigate and pursue claims in
               state court . . . Though lack of diligence will not bar an evidentiary
               hearing if efforts to discover the facts would have been in vain, see
               2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see
               § 2254(e)(2)(B), only a prisoner who has neglected his rights in state
               court need satisfy these conditions.

Id. at 435. Here, the state appellate court refused to consider the Staubus affidavit, noting that

Samatar had advanced no reason why he could not have presented it when he first had the

opportunity to do so in support of his motion for new trial. Samatar never requested an evidentiary

hearing in his motion for new trial, wherein he first submitted Dr. Kell’s affidavit challenging the

BSI testing methods for khat. A failure to request a new trial hearing waived the issue of whether

an evidentiary hearing should have been conducted by the trial court on that motion.

                                                  B.

       The discovery process of the Federal Rules of Civil Procedure does not automatically apply

to habeas corpus actions, and a habeas petitioner “is not entitled to discovery as a matter of ordinary

course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). A habeas petitioner’s request for discovery

is subject to a minimal standard of “good cause.” Id. at 909. Under this standard, a district court

should grant leave to conduct discovery in habeas corpus proceedings only “where specific

allegations before the court show reason to believe that the petitioner may, if the facts are more fully

developed, be able to demonstrate that he is . . . entitled to relief . . . .” Id. at 908-09. However,

“[w]hen expansion of the record is used to achieve the same end as an evidentiary hearing, the

petitioner ought to be subject to the same constraints that would be imposed if he had sought an
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evidentiary hearing.” Owens v. Frank, 394 F.3d 490, 499 (7th Cir. 2005) (quoting Boyko v. Parke,

259 F.3d 781, 790 (7th Cir. 2001). Thus, for the same reasons that Samatar should be denied an

evidentiary hearing, he should also be denied additional discovery.

       For the reasons stated above, we AFFIRM the district court’s denial of Samatar’s habeas

corpus petition.
