Sasser v. Hobbs
ORDER denying 185 Motion for Leave to File Third Amended Petition; granting 188 Motion for Discovery; denying 196 Motion to Resolve Issue of Intellectual Disability Prior to Evidentiary Hearing. Signed by Honorable P. K. Holmes, III on March 3, 2015. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Case No. 4:00-cv-04036
WENDY KELLEY, Director,
Arkansas Department of Corrections
Currently before the Court are Petitioner Andrew Sasser’s motion for leave to file a third
amended petition (Doc. 185), Sasser’s motion for discovery (Doc. 188), and Sasser’s motion for
resolution of the intellectual disability issue prior to an evidentiary hearing (Doc. 196).
Respondent Wendy Kelley1 has filed a response in opposition to all motions (Docs. 190, 192, 197).
Sasser filed a reply in support of his motion for leave to amend (Doc. 191) and in support of his
motion for discovery (Doc. 193).
The Eighth Circuit issued a mandate (Doc. 180) on March 20, 2014, affirming in part and
reversing in part the previous judgments of the Court and remanding to this Court for proceedings
consistent with the Eighth Circuit’s opinion. Specifically the Eighth Circuit held as follows: (1)
affirmed dismissal of Sasser's claims “with the exception of his Atkins2 claim and the four
ineffective-assistance claims meriting a hearing under Trevino;”3 (2) vacated both denial of relief
Wendy Kelley was officially named the Director of the Arkansas Department of Corrections
on January 13, 2015. As Ray Hobbs’s successor in office, Ms. Kelley is automatically substituted
as a party pursuant to Federal Rule of Civil Procedure 25(d). The Clerk of the Court is directed to
amend the docket sheet accordingly.
Atkins v. Virginia, 536 U.S. 304 (2002).
Trevino v. Thaler, 133 S. Ct. 1911 (2013).
on the four ineffective-assistance-of-counsel claims and the Court's “finding that Sasser is not
mentally retarded under Atkins;” (3) reversed “the Court’s denial of a[n evidentiary] hearing on the
four potentially meritorious ineffective assistance claims;” and (4) remanded for further
proceedings including an evidentiary hearing on the ineffective assistance claims and “a new Atkins
finding under the appropriate standard.” Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013).
Upon remand, the case was reassigned to the undersigned. After reviewing the Eighth
Circuit’s order, the Court set this matter for an evidentiary hearing to begin on January 20, 2015.
The parties were also directed to brief Sasser’s Atkins claim in light of the Eighth Circuit’s
opinion. The Atkins issue has been fully briefed as of December 17, 2014. The evidentiary
hearing, however, was cancelled to be rescheduled after resolution of Sasser’s pending motions.
The Court will address each motion in turn.
Motion for Leave to Amend
Sasser requests leave to amend his petition pursuant to Federal Rule of Civil Procedure
15(a)(2), which provides that “[t]he court should freely give leave [to amend] when justice so
requires.” Sasser argues “[j]ustice requires amendment because the Eighth Circuit remanded this
case to this Court to resolve issues of fact,” and “[a]n amended petition setting out the facts that
Mr. Sasser will show at the . . . hearing will not only guide the Court in its determination of the
merits it will also provide notice to the Respondent of what Mr. Sasser intends to prove at the
evidentiary hearing.” (Doc. 185, ¶ 2). Although previous petitions by Mr. Sasser have been
relatively short, Sasser’s proposed third amended petition is over eighty pages. The proposed third
amended petition also appears to advance new substantive claims that Sasser is precluded from
bringing, as the Court is limited to consideration of only the four ineffective-assistance claims and
the Atkins claim remanded by the Eighth Circuit. See Sasser v. Norris, 553 F.3d 1121, 1128 (8th
Cir. 2009) (on the second appeal of this case noting that where the Eighth Circuit, on the first
appeal, had “expressly limited the district court to consideration of one issue” the Court was
“impliedly prohibited” from considering any other issue).
To the extent Sasser seeks only to plead additional facts in support of the claims falling
within the scope of the remand, the Court sees no need for additional pleading in the form of an
amended petition. Once an evidentiary hearing is reset, the parties will be given an opportunity
to file prehearing disclosure sheets as well as prehearing briefs setting out proposed findings of fact
and conclusions of law. (See Doc. 182, p. 3).
Motion for Discovery
Sasser moves for leave to conduct discovery, specifically seeking the following:
The complete institutional file of Andrew Sasser, SK#929, including, but
not limited to visitation logs, behavioral reports, inmate grievances,
classification documents, and medical and mental health records. This
includes all electronically maintained information, including EOMIS
Any and all records, of any nature, in the possession of the Arkansas Parole
Board concerning Sasser.
(Doc. 188, pp. 3 and 7). Kelley opposes Sasser’s motion.
“A 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). Rather,
“[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery.” Rule 6(a) of the Rules Governing Section
2254 Cases (“Rule 6”). “The ‘good cause’ that authorizes discovery under Rule 6(a) requires a
showing ‘that the petitioner may, if the facts are fully developed, be able to demonstrate that he
is . . . entitled to [habeas] relief.’” Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009) (quoting
Bracy, 520 U.S. at 909). The petitioner argues that good cause exists for the requested discovery
because it is relevant and necessary to support his claims of ineffective assistance of counsel,
particularly the claim that Sasser’s trial counsel ineffectively failed to prepare for the sentencing
phase of the trial. Sasser argues that his trial counsel should have inspected these records for
Kelley argues that discovery is not warranted; that the discovery request is duplicative, as
Sasser’s counsel was previously allowed access to Sasser’s prison file in 2010; alternatively, that
the request for discovery is premature prior to the Court deciding whether the remanded
ineffective-assistance claims were procedurally defaulted; and, alternatively, that Sasser’s discovery
requests are not appropriately limited in time or scope.
It is hard for this Court to find that discovery is not warranted in this case, where it was
previously ordered (Doc. 138) albeit in a different procedural and substantive context. The current
motion is raised at a time when this case has been ongoing for fifteen years and survived to be
remanded after three appeals. The Court is also ever cognizant of the fact that this is a case in
which the petitioner faces the death penalty. Where a question of discovery is left to the discretion
of the Court, a man’s life must weigh more heavily than relatively trivial or technical concerns of
a respondent. In this case, given the protracted nature of the litigation and the high stakes
involved, it would seem most prudent to allow Sasser’s requested discovery. In any event, the
Court agrees that Sasser has shown good cause for the Court to allow his requested discovery to
Addressing Kelley’s objections, the Court finds that the requested discovery is relevant to
the issue on remand as to whether Sasser’s counsel was ineffective at sentencing. The Court does
not find that Sasser’s request for production of his prison file should be denied as duplicative of
the request that was previously granted in 2010. Sasser’s counsel could not have been expected
to review Sasser’s file in 2010 with prescient awareness of claims that would be remanded for
consideration four years later. It is not unduly burdensome for either the Arkansas Department of
Corrections or the Arkansas Parole Board to produce or allow review of Sasser’s files. The request
is not premature, as the Eighth Circuit has stated that even questions of procedural default will
necessitate a hearing, which “will necessarily address the underlying merits of the four [ineffectiveassistance] claims because, unless postconviction counsel’s failure to raise a claim was prejudicial,
the claim remains procedurally barred despite Trevino.” Sasser v. Hobbs, 743 F.3d 1151, 1151
(8th Cir. 2014) (denying rehearing en banc). The records requested by Sasser will be relevant to
showing prejudice, an issue that must be considered even as to the threshold matter of procedural
However, the Court agrees with Kelley that the requests are not appropriately limited in
time. Sasser has not, at this time, shown good cause for why all records should be produced up
to the present date. All ineffective-assistance claims to be heard by the Court on remand relate to
Sasser’s sentencing. Any Trevino procedural-default consideration of whether postconviction
counsel was ineffective would also be limited to postconviction counsel’s alleged failures to
investigate trial counsel’s failure to investigate relevant records prior to sentencing. The Court will
therefore order the Arkansas Department of Corrections and the Arkansas Board of Parole to
produce Sasser’s requested documents from prior to the time of the entry of his judgment and
commitment order on May 4, 1994. If Sasser believes later dated documents are relevant to his
claims, he may file a separate motion showing good cause for the production of those documents
Motion to Resolve Intellectual Disability Issue
Sasser requests the Court to resolve the issue of whether he is intellectually disabled before
holding an evidentiary hearing on the ineffective-assistance claims. Sasser argues that, if the Court
finds that Sasser is intellectually disabled, there might be no need to hold “the more costly and
time consuming hearing on the merits of the ineffective assistance of counsel claims.” (Doc. 196,
¶ 2). Kelley objects to this approach. Kelley’s position is that no evidentiary hearing is necessary
on the ineffective-assistance claims, and so such claims should be considered together with the
Atkins claims as the Court’s docket allows. While the Court cannot find at this time that no
hearing on the ineffective-counsel claims is necessary for the reasons advanced by either side, the
Court does agree with Kelley that it is not necessary to delay consideration of the ineffectiveassistance claims in order for the Court to consider the Atkins claim.
The Court is aware that the Atkins claim has been briefed and is ripe for consideration. The
Court will rule on that issue as its docket allows without regard for whether or not the ineffectiveassistance claims have also ripened. The Court will therefore deny Sasser’s motion insofar as it
seeks to bind the Court to decide the Atkins claim before consideration of the ineffective-assistance
For all of the reasons set forth above, IT IS ORDERED that Sasser’s motion for leave to
file a third amended petition (Doc. 185) is DENIED.
IT IS FURTHER ORDERED that Sasser’s motion for discovery (Doc. 188) is GRANTED.
A separate order will be entered directing the Arkansas Department of Corrections and the
Arkansas Board of Parole to produce the requested documents.
IT IS FURTHER ORDERED that Sasser’s motion to resolve issue of intellectual disability
prior to evidentiary hearing (Doc. 196) is DENIED.
A hearing on the ineffective-assistance-of-counsel claims will be reset by separate order.
IT IS SO ORDERED this 3rd day of March, 2015.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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