Hooks v. Allen (DEATH PENALTY)
MEMORANDUM OPINION re 53 Order. Signed by Chief Judge William Keith Watkins on 10/17/2011. (br, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
JOSEPH B. HOOKS,
KIM T. THOMAS,
Department of Corrections,
) CASE NO. 2:10-CV-268-WKW
Before the court are the Recommendation of the Magistrate Judge (Doc. # 44)
and Petitioner Joseph B. Hooks’s Objections (Doc. # 50).1 On September 30, 2011,
after conducting a de novo review, see 28 U.S.C. § 636(b), the court entered an Order
overruling the Objections and adopting the Recommendation. (Doc. # 53.) The
purpose of this Memorandum Opinion is to provide the reasoning for that Order.
In 1985, Mr. Hooks was convicted in the Circuit Court of Montgomery County,
Alabama, of murdering Donald Bergquist and Hannelore Bergquist during the course
of robbery, and was sentenced to death. At the time of the murders, Mr. Hooks was
Respondent filed a response to the Objections on August 19, 2011 (Doc. # 51), and Mr.
Hooks filed a reply brief on September 2, 2011 (Doc. # 52).
in his early thirties. Mr. Hooks filed the instant action in March 2010, less than a year
after the conclusion of his state post-conviction proceedings, seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (See Doc. # 10 ¶¶ 18-26 (Am. Pet.).)
The issue is whether in his July 1, 2011 Recommendation (Doc. # 44), the
Magistrate Judge erred in recommending the denial of Mr. Hooks’s Motion for
Discovery (Doc. # 29). In that motion, Mr. Hooks requests permission to obtain
modern brain imaging at his own expense to prove his Eighth Amendment claim that
he suffered from frontal lobe dysfunction at the time of the murders and that,
therefore, his execution would constitute cruel and unusual punishment. (Doc. # 29.)
In his Recommendation, the Magistrate Judge concluded that Mr. Hooks could
not show good cause for the requested discovery under Rule 6 of the Rules Governing
Section 2254 Cases and Bracy v. Gramley, 520 U.S. 899 (1997), because his Eighth
Amendment claim was procedurally defaulted, and neither cause and prejudice nor
a fundamental miscarriage of justice excused the procedural default.2 As to cause,
the Magistrate Judge rejected Mr. Hooks’s argument that the legal and factual bases
of his claim were not reasonably available at the time of the default. (Doc. # 44,
There is no dispute that Mr. Hooks did not present his Eighth Amendment claim to the
Alabama courts. Therefore, this claim is procedurally defaulted for purposes of habeas corpus
review, absent a showing of cause and prejudice, or “that a ‘failure to consider the claims will
result in a fundamental miscarriage of justice.’” Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170,
1179-80 (11th Cir. 2010) (quoting Muhammad v. Sec’y, Dep’t of Corr., 554 F.3d 949, 957 (11th
at 5-10.) The Magistrate Judge determined that the factual basis existed for Mr.
Hooks to make his claim during the pendency of his action in state court because
“accepted scientific methods,” such as a Positron Emission Tomography (“PET”)
scan, were available for measuring brain function, even if the fMRI technology
preferred by Mr. Hooks were not available. (Doc. # 44, at 6-7.)
The Magistrate Judge also rejected Mr. Hooks’s argument that his claim is so
novel that its legal basis was not reasonably available until Roper v. Simmons, 543
U.S. 551 (2005), and Graham v. Florida, 130 S. Ct. 2011 (2010). (Doc. # 44,
at 7-10.) Concluding that Mr. Hooks could not demonstrate cause, the Magistrate
Judge emphasized that “[n]either Roper nor Graham . . . directly address[ed] the
claim presented here; that is, whether the Eighth Amendment forbids the execution
of [Mr. Hooks] because he ‘suffers from a frontal lobe dysfunction in his brain which
made him biologically unable to exercise the kind of judgment and impulse control
of a normal adult when the crimes were committed.’” (Doc. # 44, at 11 (citation
omitted).) Finally, the Magistrate Judge found that Mr. Hooks could not “meet the
exacting standard of the miscarriage of justice exception” because Mr. Hooks’s
argument is “a mere restatement” of his position on cause. (Doc. # 44, at 12.)
Mr. Hooks’s objections can be divided into four categories.3 First, he argues
that the Magistrate Judge erred in finding that he could not establish prejudice for the
procedural default. (Doc. # 50, at 18.) “To establish ‘prejudice,’ a petitioner must
show that there is at least a reasonable probability that the result of the proceeding
would have been different.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003). Mr. Hooks contends that the Supreme Court’s decisions in Roper and Graham
establish an “evolution in Eighth Amendment jurisprudence [that] creates a
reasonable probability that [Mr. Hooks] will be able to show that it is unconstitutional
to impose the death penalty on a person whose brain is dysfunctional in a way that it
is similar to a juvenile such that he also lacks the capacity to make reasoned
judgments.” (Doc. # 50, at 8; see also Doc. # 50, at 18-19 (arguing that Roper and
Graham “demonstrate[ ] that the evolving constitutional limitations on imposition of
the death penalty show that his claim that it would be unconstitutional to execute him
for conduct that was the result of frontal lobe dysfunction is strong”). Although at
the time of the crime in November 1984, Mr. Hooks was in his early thirties, he
argues that his brain functions “like a juvenile” because of his alleged frontal lobe
All of Mr. Hooks’s arguments have been carefully considered. His arguments not
expressly addressed in this Memorandum Opinion are rejected.
dysfunction (Doc. # 50, at 3; Doc. # 10, at 32), and that Roper and Graham provide
a foundation “to argue that a categorical rule against imposition of the death penalty
should be applied to non-juveniles who suffer from frontal lobe dysfunction that
makes them less culpable in the same way as juveniles.” (Doc. # 50, at 16.) Mr.
Hooks contends that, if he “can obtain brain imaging evidence of his frontal lobe
dysfunction, he will be able to demonstrate how he is suffering prejudice from a
procedural default.” (Doc. # 50, at 8.) The court disagrees.
Roper held that executing juveniles who were under the age of eighteen at the
time of the offense violates the Eighth and Fourteenth Amendments, see 543 U.S.
at 578, and Graham held that sentences of life without parole are unconstitutional for
juvenile offenders who have not committed homicides, see 130 S. Ct. at 2034. It is
true that these cases relied, to some extent, on psychological and neurological
attributes of juveniles that differentiate them from adults. See, e.g., Graham, 130 S.
Ct. at 2026 (observing that “developments in psychology and brain science continue
to show fundamental differences between juvenile and adult minds,” and that “[f]or
example, parts of the brain involved in behavior control continue to mature through
late adolescence”); Roper, 543 U.S. at 570 (noting the “character of a juvenile is not
as well formed as that of an adult” and the “susceptibility of juveniles to immature
and irresponsible behavior”).
However, neither Roper nor Graham held that the Eighth Amendment’s ban
on cruel and unusual punishments prohibits the execution of adults with frontal lobe
dysfunction, and Mr. Hooks points to no authority – and none has been found – that
supports such an expansive reading of Roper and Graham. The factual and legal link
between Mr. Hooks’s Eighth Amendment claim and the claims at issue in Roper and
Graham simply is too tenuous to establish a new constitutional claim applicable to
adult offenders who allege that they suffered from frontal lobe dysfunction at the time
of the crimes. (Doc. # 51, at 5.) Mr. Hooks’s attempt to extract an Eighth
Amendment claim that execution of adults with frontal lobe dysfunction is
unconstitutional from Roper and Graham impermissibly stretches those holdings
beyond their present limits. The court cannot make that substantial leap.
Moreover, in both Roper and Graham, there was a discernable national
consensus to show that evolving standards of decency required a constitutional ban
against executing offenders who were under the age of eighteen when the murders
were committed, and against sentencing juveniles to life sentences without parole for
the commission of non-homicide cases. The Magistrate Judge correctly observed that
Mr. Hooks has not pointed to any legislative enactment or state practice evidencing
a national consensus sufficient to show that evolving standards require a
constitutional ban against the “execution of an adult with such a frontal lobe
impairment.” (Doc. # 44, at 8.) Contrary to his urging, Mr. Hooks has not
demonstrated that his claim “would definitely change the result of the proceedings,
by eliminating the death penalty as a sentence.” (Doc. # 50, at 19.) Accordingly, Mr.
Hooks has not shown prejudice from his counsel’s failure to raise the Eighth
Amendment claim during the state court proceedings.
Second, Mr. Hooks argues that the factual and legal bases for his Eighth
Amendment claim were not reasonably available until Roper and Graham and that,
therefore, he demonstrates cause for his failure to raise his claim during the pendency
of his state court proceedings.4 He contends that it was not until 2005 at the earliest
that the scientific community accepted (and the Supreme Court in Roper recognized)
that frontal lobe dysfunction could be the biological basis for specific abnormal
behaviors. (Doc. # 50, at 10; see also Doc. # 30, at 14.)
This argument relies upon the narrow novelty rule for establishing cause. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); Reed v. Ross, 468 U.S. 1, 16 (1984). “To show cause, the
petitioner must demonstrate ‘some objective factor external to the defense’ that impeded his
effort to raise the claim properly in state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir.
2010) (quoting Murray, 477 U.S. at 488). “[A] showing that the factual or legal basis for a claim
was not reasonably available to counsel” is an external factor that can constitute cause. Murray,
477 U.S. at 488 (citing Reed, 468 U.S. at 16). For example, a showing that “a constitutional
claim is so novel that its legal basis [was] not reasonably available to counsel” would constitute
cause under this standard. Reed, 468 U.S. at 17; accord Hargrave v. Dugger, 832 F.2d 1528
(11th Cir. 1987). It should be noted that in subsequent Supreme Court decisions, Reed has not
been expanded; it only has been narrowed. See, e.g., Bousley v. United States, 523 U.S. 614, 622
No doubt, Roper “was a significant change in law” (Doc. # 50, at 6), and the
holdings of Roper and Graham were unavailable to Mr. Hooks during his state court
habeas proceedings. However, for the reasons discussed above, Roper and Graham
are too factually and legally distinct to provide a reasoned and principled foundation
for the Eighth Amendment claim Mr. Hooks attempts to bring in this action. Absent
any other authority from Mr. Hooks, the Magistrate Judge did not err in rejecting his
reliance on Reed’s novelty rule for demonstrating cause.
Third, Mr. Hooks contends that he is entitled to discovery on modern brain
imaging to demonstrate that his procedural default is excusable for cause and
prejudice and, thus, the Magistrate Judge ruled prematurely on the question of
procedural default. (See Doc. # 50, at 1; see also Doc. # 50, at 8 (“The Magistrate
Judge should decide the pending discovery motion without reaching the procedural
default issues.”).) None of the cases cited by Mr. Hooks found that a habeas
petitioner was entitled to discovery as a matter of right to attempt to overcome
procedural default. This is not surprising because “Rule 6(a) makes it clear that the
scope and extent of such discovery is a matter confided to the discretion of the
District Court.” Bracy, 520 U.S. at 909; see also id. at 904 (“A habeas petitioner,
unlike the usual civil litigant in federal court, is not entitled to discovery as a matter
of ordinary course.”); Williams v. Bagley, 380 F.3d 932, 974-76 (6th Cir. 2004)
(holding that district court did not abuse its discretion in denying discovery requests
because the habeas petitioner had procedurally defaulted the claim); Smith v. Warden,
Toledo Corr. Facility, No. 3:10cv367, 2011 WL 4337092, at *4 (S.D. Ohio July 18,
2011) (denying as moot a motion for discovery under Rule 6(a) “because Petitioner
. . . procedurally defaulted his claims”).
A court acts within its discretion in denying discovery under Rule 6(a) when
there is no “reason to believe” that the petitioner “may . . . be able to overcome
procedural default” with further factual development. Bracy, 520 U.S. at 908-09; see
Bartelli v. Wynder, No. 04-3817, 2010 WL 5904395, at *15 (E.D. Pa. Nov. 30, 2010)
(“Generally, discovery requests relating to procedurally defaulted claims are properly
denied because discovery would not lead to a basis for relief on the claims.”);
Simmons v. Simpson, No. 3:07cv313-S, 2009 WL 4927679, at *10 (W.D. Ky. Feb. 12,
2009) (“[I]f the claim actually is procedurally defaulted, and if cause and prejudice
for the alleged default cannot be established by the requested discovery, then [the
petitioner] will not be able to satisfy the good cause test of Rule 6.”); United States
v. Atkin, 80 F. Supp. 2d 779, 786 (N.D. Ohio 2000) (Good cause for discovery was
not established where “even if the facts regarding [the petitioner’s] . . . allegation
were fully developed [the petitioner’s] procedural default would bar relief.”). As
discussed above, Mr. Hooks cannot show prejudice as a matter of law because the
contours of his Eighth Amendment claim lack sufficient legal support.5 Hence,
allowing discovery to discern facts as to whether he actually suffered from frontal
lobe dysfunction at the time of the murders would not help him overcome the
prejudice prong of procedural default. Accordingly, the Magistrate Judge did not err
in finding Mr. Hooks’s Eighth Amendment claim procedurally defaulted, without
providing him the benefit of discovery.
Fourth, Mr. Hooks argues that the Magistrate Judge should have evaluated the
exception to procedural default for fundamental miscarriages of justice under Sawyer
v. Whitley, 505 U.S. 333 (1992). (See Doc. # 50, at 19-20); see also Sawyer, 505 U.S.
at 336 (holding that “to show ‘actual innocence’ one must show by clear and
convincing evidence that, but for a constitutional error, no reasonable juror would
have found the petitioner eligible for the death penalty under the applicable state
law”). To the extent that the Magistrate Judge did not consider Sawyer, this court
finds that, for reasons already stated, Mr. Hooks has not shown that the failure to
reach the merits of his claim would result in a fundamental miscarriage of justice.
Also, absent in Mr. Hooks’s brief is any argument or discussion of how the requested
discovery would help him demonstrate cause to excuse the procedural default. (See Doc. # 50,
Mr. Hooks has not demonstrated cause for his failure to raise his claim during
the state court proceedings that he suffered from frontal lobe dysfunction so as to
render his execution unconstitutional under the Eighth Amendment and has failed to
show prejudice stemming from that failure. He also has not shown that a failure to
hear his claim would result in a fundamental miscarriage of justice. Hence, the
Magistrate Judge correctly found that his claim that his execution would be
unconstitutional based on his alleged frontal lobe dysfunction is barred by procedural
default. Furthermore, the Magistrate Judge did not err in deciding the procedural
default issue, without permitting Mr. Hooks to conduct modern brain imaging
discovery. Accordingly, the Magistrate Judge was correct in recommending the
denial of the Motion for Discovery.
DONE this 17th day of October, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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