Rivera v. Humphrey

Filing 66

ORDER that Petitioner Reinaldo Javier Rivera's 56 Motion for Discovery and 57 Motion for an Evidentiary Hearing are hereby denied. Following briefing on the merits of Mr. Rivera's claim, Mr. Rivera may renew his Motion for an Evidentiary Hearing, if appropriate. Signed by Judge J. Randal Hall on 06/10/2015. (jah)

IN THE UNITED

FOR THE

STATES

DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

RE1NALDO JAVIER RIVERA,

*

*

Petitioner,

*
*

v.

CV

113-161

*

CARL HUMPHREY,

Warden,

*

Georgia Diagnostic and

*

Classification State Prison,

*
*

Respondent.

*

0

Now

Motion

Hearing

before

for

the

Court

Discovery

(Doc.

57).

is

(Doc.

D

R

E

R

Petitioner

56)

and

As to discovery,

Reinaldo

Motion

Mr.

for

Javier

an

Rivera's

Evidentiary

Rivera seeks to subpoena

incident files and any other documentation within the possession of
St. John's Abbey — an Order of the Catholic Church — to support the
claim that his trial counsel was ineffective in failing to conduct

adequate investigation into his background, particularly whether he
was a victim of sexual abuse as a child.

With his request for an

evidentiary hearing, Mr. Rivera wishes to present the testimony of
Dr. David Lisak ("Dr. Lisak") , a psychologist.

Mr. Rivera contends

that the state habeas court unreasonably refused to accommodate Dr.

Lisak's

live.

limited

availability

and

Upon due consideration,

would

Mr.

not

Rivera's

allow

him

to

testify

Motion for Discovery

and Motion for an Evidentiary Hearing are hereby DENIED.

I.

Following

a

County,

Georgia,

murder,

three

four

counts

jury
Mr.

trial

in

Rivera was

counts

of

Background

of

rape,

the

Superior

convicted of

four

counts

aggravated assault,

one

29,

Rivera's
and

II

at

27;

pending motions

any

abuse

Ex.

evidence

as

they

address

regarding

pertain

to

his

the

Rivera's

malice

sodomy,
of

a

of

(Ga.

Because
of

facts

Dr.

childhood

to

of

Mr.

Lisak
sexual

counsel

those

issues

Rivera's crimes,

see

2007).

Mr. Rivera's Trial and Direct Appeal

At

trial,

Jacque

Hawk

Mr.

Rivera

(collectively,

defense counsel had Mr.

at

of

possession

assistance

For a more detailed description of Mr.
73-74

of

alleged

ineffective

recitation

647 S.E.2d 70,

Richmond

aggravated

testimony

only.

A.

its

count

12-19. )1

at

the

State,

limits

Mr.

of

and one count of burglary.

1A

only

of

claim,

Rivera v.

Court

Id. , Ex.

one

count

knife during the commission of a crime,

(Doc.

Court

the University of

abuse, violence in men,
Ex.

78

at

137,

was

represented

"defense

by

counsel").

Massachusetts

who

Dr.

Lisak

evaluated

(Id.

report

The

Court's

to

Lisak's

to

Mr.

in

trial

trial,

childhood
(Doc. 31,

Rivera

mother,

and

a professor

sexual aggression, and homicide.

Rivera's wife,

Dr.

Lisak,

specialized

occasions and also met with Mr.

141-42.)

Johnson

Prior

Rivera evaluated by Dr.

140.)

at

Peter

on

three

and sister.

counsel

concluded

that

1

CM/ECF,

references

to

the

the Court's filing system.

record reflect

the

pagination

input by

[m]any aspects of Mr. Rivera's sexual history,
most
notably his
extremely sexually compulsive behavior,
represents classic symptoms of childhood sexual abuse.
However, Mr. Rivera has no memory of any sexual abuse and
I

uncovered

no

other

evidence

of

such

abuse.

It

is

certainly possible
that
Mr.
Rivera
was
abused but
currently has no conscious access to the memories of that
abuse.
If Mr. Rivera was, in fact, sexually abused, one
of the more likely places where this might have occurred
would be at the private, religious schools he attended as

a child.
of

His sister recalled that there were whisperings

sexual

misconduct

at

these

schools;

however,

Mr.

Rivera adamantly denied that any abuse occurred there.
(Id.

at

142

(testimony of

Lisak's

report

Johnson

testified

Rico,

where

following

Mr.

Johnson

some

sort

[he]

testified

of

father [,]"

that

Rivera

Johnson

reading

evaluation

never

of

school

as

as

a

For trial,
witness

counsel]
comes

"actually

relationship between
did

not

"act

like

trial"

because he did

imagined

that

the

there

Dr.

and

Lisak

"that

"fighting

not want

to

prosecution

was

child,

told

Mr.

[Mr.

an

expert

with"

Puerto

because

reveal

"wanted

who

Dr.

there

Rivera]
and

Johnson

and his
"at

that

"that

Lisak

[defense

Georgia when this case
was

judge

and

Lisak's

decided

was

just did not go there."

a

. . .

(Id. at 144.)

[defense

he

And while

that

victim"

Rivera]

the

Dr.
Mr.

to

at 186.)

[Mr.

a

of

defense counsel decided against calling Dr.

because

recalled

a

believed

he

psychopath with no redeeming values."
Johnson

traveling

that

did not want him in the state of

to

portion
Rivera).)

(Id.

point ... it was all speculation and [he]
(Id.)

Mr.

considered

attended

a

was looking for."

unnatural

Mr.

his

he

Rivera

"didn't know what
Mr.

Mr.

Indeed, Mr.

district

attorney

identity because he

counsel]

that

classic

[Mr.]

to

tell

Rivera

them

was

a

psychopath . . . ."

(Id. at 145.)

At that point,

defense counsel

sought additional funds to hire a new expert, because they "came to
realize . . . that

[Dr.

Lisak]

believed

[Mr.

psychopath" and "did not accept the

idea that

apparent

seen as

sexual

addiction could be

Rivera]

was

[Mr. Rivera's]

very

mitigating evidence,"

and Dr. Lisak was simply "not a good fit for this case."
Ex.

a

(Doc. 35,

107A at 110-11.)

At

the

guilt/innocence

presented the

testimony of

phase
Dr.

of

the

Thomas

trial,

Sachy,

a

defense

counsel

neuropsychiatrist

who diagnosed Mr. Rivera with psychopathy or antisocial personality
disorder

with

significant

sadistic

"significantly influenced by

20

at

from

4,

72-74.)

Dr.

[]

sexual

behavior

brain dysfunction."

Sachy also opined that Mr.

obsessive-compulsive

disorder,

in

that

he

that

(Doc.

30,

was
Ex.

Rivera suffered

had

an

"obsession

with violent deviate sexual acts committed on women."

(Id.

Defense

psychologist

counsel

also

called

Dr.

specializing in neuropsychology,

Marc

whose

Einhorn,

a

examinations

of

at 74.)

Mr.

Rivera

resulted in a finding that he was "a psychopathic sexual sadist[.]"
(Id.

Mr.

at

141,

Geral

(Doc.

30,

Rivera's

152-58.)

Blanchard,
Ex.

21

at

exposure

As

a

a

third witness,

Mr.

violent

that

Mr.

Rivera

was

a

Blanchard

pornography

Rivera's addictive sexual behavior.

opined

counsel

called

counselor specializing in sexual violence.

4 0-42.)

to

defense

(Id.

"level

testified

as

a

child

at 46-52.)

four

Mr.

sex addict,"

characterized by lust murder and serial killing.

about

Mr.

and

Mr.

Blanchard

which

(Id. at 54.)

is
At

this phase of the trial, Mr. Rivera also testified very candidly
regarding his past childhood and sexual experiences.
16.)

In particular, Mr. Rivera recognized with hindsight that his

experiences

with patrons

of

a porn

theater

in

young teenager would qualify as sexual abuse.
During

the

sentencing

phase,

presented the testimony of Mr.

30,

(Id. at 102-

Ex.

24

College

of

overdose

at

48) ; Dr.

Georgia

(Id.

at

who

that

Mr.

Mr.

(Id.

as

a

defense

Gloria Rivera

a physician at
Rivera

counsel
(Doc.

the Medical

following

a

Tylenol

(Id.

at

137-

from whom Mr. Rivera sought treatment'for
at

Rivera

147-50);
admitted

"seeking some type of forgiveness"

Pino,

Rivera's

130-32) ; Investigator Greg Newsome

addiction

testified

treated

Rico

(Id. at 116.)

Rivera's sister,

Amy Blanchard,

44); Dr. Matthew Ciechan,
sexual

Mr.

Puerto

Pastor
his

(Id.

Steve

sexual

Hartman,

addiction

who

and

at 152-55) ; and Dr.

was

Nathan

a sociology and anthropology professor who testified that Mr.

Rivera

offered

behavior

(Id.

himself

up

for

research

to

try

and

explain

his

at 162-65).

Following

the

testimony

at

the

sentencing

phase,

the

jury

found the following statutory aggravating circumstances existed to

impose

the

death

committed while Mr.

capital felony;

(2)

penalty:

the

murder

Glista

(1)

was

was committed while Mr. Rivera was engaged in

horrible,

depravity of mind,

Marni

Rivera was engaged in the commission of another

the commission of aggravated battery;

wantonly vile,

of

or

and

inhuman in

(3)

that

was "outrageously or

it

involved torture,

or an aggravated battery to the victim."

(Doc.

29,

Ex.

II at

28.)

sentence of death.

Mr.

(Id.

which

Rivera,

affirmed
647

State

Habeas

the

conviction

S.E.2d 70.

Mr.

Rivera

A motion

jury recommended a

and
for

the

Supreme Court

sentence

on

June

reconsideration

of
25,

filed

(Doc. 30, Ex. 34.)

Proceedings

Denial of Mr.

the

conviction to

by Mr. Rivera was also denied.

B.

findings,

at 2 9.)

Rivera appealed his

Georgia,
2007.

With these

and

the

Georgia

Supreme

Court's

Rivera's Certificate of Probable Cause

filed,

a

state

habeas

corpus

petition

in

the

Superior Court of Butts County (the "state habeas court" or "habeas

court")

on November 7,

2008.2

Rivera's petition concluded,

letter to

the parties'

Once the discovery period on Mr.

the Honorable William A.

counsel .dated December 10,

dates for an evidentiary hearing.
Fears
Upon

initially suggested several
a

reminder

that

leave at that time,
(Id.

at 17.)

20 and May 26,

2

(Doc.

Mr.

31,

dates

in

Petitioner's

Ex.

Fears wrote a

2009

suggesting

70 at 15.)

February 2010.

counsel

would

be

the habeas court suggested dates

on

Judge
(Id.)

maternity

in May 2010.

Rivera's counsel responded that dates between May

2010 would be acceptable.

(Id.

at 19.)

The court

At the outset, the Court notes that Mr. Rivera has repeatedly expressed

his desire to not file any appeals.
(Doc. 37, Ex. 138 at 2.)
Indeed, Mr.
Rivera has on a number of occasions attempted to proceed pro se.
(Id.)
At
the risk of stating facts out of order, the Georgia Supreme Court, following
the denial of Mr. Rivera's habeas petition, granted Mr. Rivera a certificate
of probable cause ("CPC") and remanded the case to the habeas court "to

conduct a hearing on the Petitioner's motions to dismiss his counsel, proceed
pro se, dismiss his habeas petition, and waive future appeals."
(Doc. 38,
Ex.

150.)

After medical evaluations,

Mr.

Rivera moved to withdraw his motion

to waive habeas corpus appeals and proceed pro se
the habeas court granted (Id., Ex. 165).

(Doc.

38,

Ex.

161),

which

then scheduled Mr. Rivera's hearing for May 24-26, 2010.
Ex.

64 at 26.)

Unfortunately,
available

to

August 2-6,

of

(Doc. 31,

Dr.

Dr. Lisak was unavailable in May; he was only

testify

2 010.

Lisak's

July

6-8,

2010,

July

(Doc. 31, Ex. 70 at 21.)

unavailability and

12-14,

2010,

and/or

Upon being made aware

w[t]o

avoid

delay,"

court reopened discovery until April 30,

2 010,

to allow Dr.

to be deposed.

(Doc.

Rivera moved

either reschedule

to

31,

Ex.

64

at 30.)

the

allow an additional day of testimony,
after

the

motion,

primary

Mr.

depositions

evidentiary

(Id.

Rivera's motion.

(Id. at

court

Rivera's

denied

Mr.

On March 30,

33.)

37-38.)

(Id.

Mr.

at

32.)

to

Lisak,
In

that

Lisak was unavailable for

Respondent

On April

request,

2010,

specifically for Dr.

hearing.

at

Lisak

evidentiary hearing or

Rivera represented that Dr.

in April.

the habeas

16,

choosing

to

objected to Mr.
2010,

the habeas

"adhere

to

the

previously scheduled evidentiary hearing,

which was agreed upon by

both the Petitioner and the Respondent."

(Id. at 49.)

Mr. Rivera

filed a Request for a Certificate of Immediate Review of the April
16, 2 010 Order (id. at 1),

and thereafter a notice of appeal with

the Georgia Supreme Court,

seeking immediate review of whether the

habeas court erred in denying his March 30,
Ex.

68).

dismiss

2 010 motion

(Doc.

31,

The Georgia Supreme Court granted Respondent's motion to
Mr.

Rivera's

reconsideration.

(Doc.

appeal
31,

and

Ex.

denied

74; Doc.

Mr.

37,

Rivera's

Ex.

123.)

motion

for

i.

Evidence

Related

to

Mr.

Rivera's

Past

Sexual

Abuse

Presented at the Habeas Court's Evidentiary Hearing
In

support

investigate

of

and

his

that

defense

counsel

evidence

uncover

claim

of

childhood

sexual

failed

to

abuse,

Mr.

Rivera presented the testimony of two victims of sexual abuse,

who

opined about how the abuse affected them.

According to Mr. Rivera,

he

the

offered

these

witnesses

"to

establish

likelihood

that

Mr.

Rivera was sexually abused by Father Francisco Schulte, a priest at
Colegio

San Antonio

Abad,

a

Catholic

from approximately 1977 to 1980."
Mr.

Rivera,

school

(Doc.

Mr.

Rivera

56 at 10.)

attended

According to

Father Schulte taught at the school from 1977 to 1981,

and "Mr. Rivera was 14 to at least 16 years old when he was exposed
to

Father

Schulte,

the

precise

age

that

Father

typically were at the time he abused them."3
The first witness was Patrick Marker,
called

"behindthepinecurtain.com"

that

sexual abuse committed by monks at St.
in Minnesota.

3

(Doc.

31,

Ex.

78

at

Schulte's

victims

(Id. at n.9)
who operates a

provides

website

information

about

John's University and Abbey

81-82.)

Mr.

Marker

testified

To support this assertion, Mr. Rivera includes the Declaration of Jeff

Anderson,
an attorney who represents victims of childhood sexual abuse.
(Doc. 56, Ex. A.)
Mr. Anderson represents that many of the cases his firm
handles involve victims assaulted by priests at St. John's Abbey, which

controlled Colegio in Puerto Rico.
various

Colegio,
Indeed,

cases,

was
the

Mr.

one
St.

of

Anderson

the

John's

priests

Abbey

(Id.

learned

^% 1-2.)

that

allegedly

recently

Anderson,

Schulte,

abusing

identified

eighteen monks who likely offended against minors.
Mr.

Through discovery in his

Father

who

students.

Father

(Id.

Schulte

H 5.)

worked

(Id.
as

at

^ 3.)
one

of

According to

he believes that Father Schulte taught at Colegio between 1977

and 1981 and typically abused boys between the ages of 13 and 16.

(Id. f 6.)

Mr. Anderson also learned that St. John's Abbey maintains "incident" files on
allegations of sexual abuse, which he believes are kept either at the St.
John's Abbey headquarters in Collegeville, Minnesota or at the offices of its

attorneys in Chicago, Illinois.
seeks to subpoena to determine
regarding his own alleged abuse.

(Id. 1 4.)
whether

8

It is these documents Mr. Rivera
an

incident

report

was

created

(1)

regarding his

Rico

(id.

at

knowledge

89-92);

(2)

of

Father Schulte's

about

his

own

(3)

that he would have been willing to

had

he

abuse

been

contacted

(id.

at

(id.

Abad

Like Mr.
in

Puerto

described

Schulte,
(Id.

Rivera,

the

as

at

Mr.

Rico.
sexual

well

96-97) .

Mr.

Rivera

(Id.)

conversations

with

his

a

at

Schetinni

classmates

abuse

had

to Mr.

Cassanova.

additionally

recounted

regarding

him,

he stated that had he been asked,

Rivera's

defense

counsel

or

would have been willing to testify.

Dr.

abuse

of

his

deposition

taken

of

Father

by

other

Mr. Schetinni

ranging

from

(Id. at 112.)

drug

Like

he would have spoken

any doctor

evaluating him and

(Id. at 113.)

Lisak's psychological report dated December 3,

transcript

Schetinni

Tito

addiction to anger issues and impulse control.
Marker,

83A at

named

classmate

on

Mr.

Ex.

hands

described

the

counsel

the

(Id. at 110.)

impact

and

additionally

Mr.

members of the clergy at that school.
the

93-95);

32,

affidavit,

suffered

of

Mr.

other

In

he

abuse

109-10.)

(Doc.

Puerto

Schetinni attended Colegio San Antonio

abuse

as

at

in

speak with defense

presented the affidavit of Carlos Schetinni.
107.)

victims

January

29,

admitted into evidence by the state habeas court.4

2010

2009 and a

were

(Doc.

also

31, Ex.

4
According to Mr. Rivera, on the discovery deadline in the state habeas
proceeding he served Respondent with a report by Dr. Lisak.
(Doc. 37, Ex.
130 at 151.)
On that same day, he provided Respondent with Dr. Lisak's
contact information.
(Id.)
Thereafter, Dr. Lisak was deposed by Respondent.

(Id.)
However, "[b]ecause Petitioner anticipated that Dr. Lisak would be a
critical fact and expert witness at a later evidentiary hearing, [habeas]
counsel did not elicit expansive testimony on cross-examination of Dr. Lisak

at the deposition."

(Id.)

As described in greater detail above, Dr. Lisak

was not available for an evidentiary hearing and was similarly not available

to be deposed during the expanded discovery period.

Mr. Rivera contends that

80A

at

7-9,

22-90.)

qualifications

In his

and

deposition,

experience

(id.

Dr.

at

impression and evaluation of Mr. Rivera

27-30);

(Id.

sexual

belief

(id.

abused sexually as

39-40,

54-58);

at

a

his

36-37);

his

statement

to

investigate the

initial

at 35-36);
that

Mr.

Mr.

Rivera's

Rivera

child and had blocked those memories

opinion

that

investigated the possibility of Mr.
his

his

(id. at 33-35); the process

by which he investigates sexual abuse
history

Lisak explained his

defense

counsel

sexual abuse,

defense

counsel

Rivera's abuse

that,

if

(id.

should

(id.

they were

was
at

have

at 43-44);

not

going

to

then they would not need him "to go

in there and tell the jury about 200 rapes that this guy committed"
(id.

at 46);

63) .

Rivera post-trial

(id.

at 62-

In relation to the records of sexual abuse at the Puerto Rico

school,
2001

and his meeting with Mr.

.

Dr.
.

.

Lisak stated that the records were not "present back in
."

(Id.

at 74.)

his counsel suggested a
counsel

to

discuss

conference call with the habeas court and opposing

solutions

to

Dr.

Lisak's

unavailability,

but

that

"the

habeas court judge was unalterably opposed to conducting a conference call."
(Id. at 152.)
During the evidentiary hearing, Mr. Rivera renewed his motion
to allow the live testimony of Dr. Lisak, which was denied.
(Doc. 31, Ex. 79
at 222.)
At the hearing, the habeas court openly questioned why Dr. Lisak
did not file an affidavit during the re-opened discovery period.
(Id. at
213-14.)
While acknowledging the habeas court's frustration, habeas counsel
was unable to provide any explanation other than that they "were counting on

having him in court."
(Id. at 214-15.)
In his post-hearing brief, Mr.
Rivera attached a 17-page affidavit of Dr. Lisak, which he emphasizes "is not
a substitute for Dr.
However,
the habeas

Lisak's live testimony."
(Doc. 37,
court granted Respondent's motion

Ex.
to

30 at 155.)
exclude the

affidavit as untimely.
(Doc. 37, Ex. 134.)
The Georgia Supreme Court, in
denying Mr. Rivera a CPC, refused to consider the affidavit as it was not
part of the record.

(Doc. 38, Ex. 171.)
10

ii.

State Habeas Court's Decision Regarding Past Sexual Abuse
and Dr.

Lisak

The state habeas court entered its order denying Mr.
petition on March 31,

2011.

dedicated 7 pages

its

of

(Doc.

37, Ex.

86 page order to Dr.

summarized his reports and opinions.
however,

the

reasonable,

habeas

138.)

court

found

The habeas court

Lisak,

wherein it

(Id. at 35-41.)

that

Rivera's

defense

Ultimately,

counsel

"made

strategic decision to not further utilize Dr.

a

Lisak as

he remained focused on sexual predators being the product of sexual
abuse

in

childhood,

while

Petitioner

was

adamant

that

he

had not

been abused as a child and there was no other evidence to support
such a
abuse,

this

theory."

(Id.

at

39.)

As

to

the allegations

of

sexual

the habeas court found that defense counsel "did investigate

theory,

present

a

evidenced,
theaters,

Lisak's

but

sound

up

defense"

specifically
was

presented

habeas

Petitioner

came

was

little

concrete

and

sexual

abuse

"what

Petitioner's
at

testimony
sexually

with very

trial."

was

abused

(Id.

based
as

activities

a

at

on
young

40.)

a

evidence

to

may

have

been

in

the

porn

Moreover,

^likelihood'

child[,]"

and

"Dr.

that
so

the

habeas court found that the doctor's opinion was "no different than
that which he provided to trial counsel at the time of Petitioner's
trial,

an

unconfirmed

notion

that

Petitioner

was

The habeas court further found the testimony of Mr.

Schetinni irrelevant,

abused."

(Id.)

Marker and Mr.

as neither witness could present any evidence

11

that

the

abuse

they

suffered

was

also

suffered

by

Mr.

Rivera.

(Id.)

After

citing

proposition

case

that

an

law

from

attorney

is

the

Eleventh

not

Circuit

ineffective

by

for

failing

develop evidence of abuse that the client does not mention
4 0-41),

the

to

(id. at

the state habeas court went on to find that

trial

counsel

cannot

be

ineffective

in this

case

for not

uncovering concrete evidence of sexual abuse.
Petitioner failed to prove that
trial
counsel were
ineffective
by
not
calling
Dr.
Lisak
to
testify.
Moreover, to the extent that Dr. Lisak and present habeas
counsel allege that Dr. Lisak's opinions were limited
based on the information he was provided by trial
counsel,
habeas
counsel
after
their
investigation
provided no new concrete evidence of abuse.
Armed again
with nothing more than speculation, Petitioner failed to
prove how trial counsel were deficient in investigating
this angle when habeas counsel, years later with greater
resources, were still unable to uncover anything more
than

trial

counsel

discovered.

Moreover,

Petitioner

failed to prove prejudice as he has not provided
evidence to suggest a reasonable likelihood that
outcome would have

been different

he presented in habeas,
of

(Id.

with

the

"new"

any
the

evidence

as there is not any new evidence

abuse.

at 40.)

Hi.

Georgia

Supreme

Probable Cause

Court

Review

for

a

Certificate

of

("CPC")

Following the denial of his petition, Mr. Rivera applied for a

CPC to appeal the denial of habeas corpus in the Georgia Supreme
Court.

(Doc.

Supreme Court

37,

Ex.

143.)

granted Mr.

As noted in footnote 2,

Rivera

a CPC

withdraw his appeal and proceed pro se.
state

habeas

court,

pursuant

to

12

that

to address
(Doc.
CPC,

the Georgia

his

desire to

38, Ex. 150.)

conducted

The

additional

hearings and allowed further medical examinations.

152-64.)

(See id. , Exs.

Thereafter, the habeas court entered a supplemental final

order with factual findings as to Mr. Rivera's competency.
38,

Ex.

Rivera

was

Supreme

his

165.)

In the order,

competent

Court

previously-filed

Mr.

the

into

motion

habeas

sought

Rivera alleged,

(1)

a

Rivera's

testimony from Dr.
decision,
a CPC.

to

Rivera's

waive

court's

CPC to

habeas

to

corpus

to

Georgia
withdraw

appeals

and

order,

Mr.

the

final

denial

of

his

petition.

that the state habeas court erred

counsel conducted a thorough investigation

background

Lisak.

and

(Doc.

(2)

38,

refusing

Ex.

to

167.)

In

allow

live

a unanimous

the Georgia Supreme Court denied Mr. Rivera's request for
(Id. , Ex.

171.)

Although the Court

found that

habeas court applied the incorrect standards to Mr.
under

the

motion

supplemental

appeal

inter alia,

finding defense
Mr.

granted Mr.

appeal

(Id.)

Following

Rivera again

the state habeas court held that Mr.

proceed with his

and further

proceed pro se.

by

to

(Doc.

Napue

v.

Illinois,

360

U.S.

264

the state

Rivera's claim

(1959) - which

is

not

pertinent to the present motions — an independent review revealed
that,

even

establish

under

the

the

requisite

correct

prejudice

excuse procedural default.
concluded

that

"upon

standard,

(Id.)

to

Mr.

assert

Rivera

a

Napue

failed

claim

to

and

The Georgia Supreme Court then

consideration

of

the

entirety

of

the

Application for Certificate of Probable Cause to appeal the denial
of habeas corpus, it is hereby denied."
13

(Id.)

C.

Mr.

Rivera's §

Mr.
2013.

Rivera
(Doc.

petition as
2014

(doc.

September

2254 Petition

filed the instant § 2254 petition on September 9,

1.)

The

untimely
25).

19,

next

(doc.
The

2014.

day,

6),

Court

(Doc.

Respondent

moved

to

dismiss

the

which the Court denied on July 16,
entered

40.)

Mr.

its

Scheduling

Rivera

filed

Order

the

on

instant

motions for discovery and evidentiary hearing on February 2, 2015.

Having
Court's

been

fully

briefed,

these

motions

are

review.

[ORDER CONTINUES ON NEXT PAGE]

14

now

ripe

for

the

II.
"A

habeas

federal court,
course."

court

Mr. Rivera's Motion for Discovery5

petitioner,

in

The

Gramley,

its

discovery pursuant

5

the

usual

civil

litigant

in

is not entitled to discovery as a matter of ordinary

Bracy v.

may,

unlike

parties

520 U.S.

discretion,

to Rule

present

6 of

904

authorize

the

considerable

discovery in light of 28 U.S.C.

899,

(1997) .

a

party

to

Rules Governing

argument

§ 2254(d).

Even so,

conduct

§ 2254

regarding

the

In that section,

a

Cases

scope

of

federal courts

are instructed that

[a] n application for a writ of habeas corpus . . . shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —

(1)

involved an
Federal law,

resulted

in

a

decision

that

was

unreasonable application of,
as determined by the Supreme

contrary

to,

or

clearly established
Court of the United

States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.
28

U.S.C.

§ 2254 (d) (1-2) .

Pinholster that

Moreover,

the

"review under § 2254(d)(1)

Supreme

Court

held

in

Cullen v.

is limited to the record that was

before the state court that adjudicated the claim on the merits."
131 S. Ct.
1388, 1398 (2011).
Analyzing Pinholster's reach, the Eleventh Circuit

recently held that although the Pinholster holding only specifically covers
§ 2254(d)(1), "its logic applies even more clearly to § 2254(d)(2) . . . ."
Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015).
As Respondent
frames its argument, "because Petitioner's claims were adjudicated on the
merits in state court, this Court's review is limited solely to the evidence
found in the state court record."
(Doc. 59 at 15.)
Therefore, Mr. Rivera
"should not be allowed discovery of information that could not be considered

when this Court performs its 28 U.S.C. § 2254(d) review of the state court's
denial

of

his

claims."

(Id.)

Mr.

Rivera responds

that he

challenges the

fact-finding process as unreasonable: "[Mr.] Rivera has argued in both his
discovery and his evidentiary hearing motions that the state court's refusal
to permit Dr. Lisak to testify and the court's refusal to consider Dr.
Lisak's

sworn

affidavit

was

both § 2254(d) and (e)(2)."

unreasonable

and

(Doc. 65 at 14.)

satisfies

the

requirements

of

Thus, Mr. Rivera contends that

he should be permitted to present evidence in order to demonstrate the state
proceeding's deficiencies.

"In addressing the evidence that a federal habeas court may consider,
Pinholster did not, strictly speaking, alter or even speak to the standards

governing discovery set forth in Rule 6 . . . . That is reason enough to
refrain from invoking Pinholster's restrictions at the discovery phase."
Conway v. Houk, No. 2:07-cv-947, 2011 WL 2119373, at *3 (S.D. Ohio May 26,
2011).
Moreover, the Court finds that, irrespective of Pinholster, Rivera
cannot support his discovery request with good cause, and for that reason
alone it is due to be denied.
15

(hereinafter "Rule 6") .

U.S. at 904.

28 U.S.C.

Section 2254 Rule

6;

Bracy,

520

Rule 6 provides:

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. ...
A
party
requesting
discovery
must
provide
reasons
for
the
request.
The request must also include any proposed
interrogatories and requests for admission,
and must
specify any requested documents.

A

petitioner

sets

forth

good

cause

"where

specific

allegations

before the court show reason to believe that the petitioner may,

if

the

he

facts

are

fully

developed,

is . . . entitled to relief[.]"
Harris v. Nelson,

A

petitioner

394 U.S.

"need

not

definitely lead to relief.

able

Bracy,

286,

show

be

300

that

Rather,

demonstrate

520 U.S.

(1969)

the

to

at 908-09

that

(quoting

(ellipses in original)).

additional

discovery would

he need only show good cause

that the evidence sought would lead to relevant evidence regarding
his petition."

Payne v. Bell, 89 F. Supp. 2d 967, 970 (W.D. Tenn.

2000) .

Equally important to the Court's consideration of Mr. Rivera's
motion

is

cannot

what

qualify

as

good

cause:

"Good

cause

for

discovery cannot arise from mere speculation or pure hypothesis."
Lee v. Humphrey, No. 5:10-cv-017, 2013 WL 4482461, at *2 (S.D. Ga.

Aug. 20, 2013)
Cir. 2006)
1247-48).

(quoting Arthur v. Allen, 459 F.3d 1310, 1311 (11th

(per curiam), modifying Arthur v. Allen, 452 F.3d 1234,
"Even

in

a

death

penalty

case,

"bald

assertions

and

conclusory allegations do not provide sufficient ground to warrant

requiring

the

state

to

respond to discovery or to require an
16

evidentiary hearing.'"

Cir.

2001)

Cir.

1991)).

Stanford v.

(quoting Zettlemoyer v.

Indeed,

Parker,

266 F.3d 442,

Fulcomer,

460

923 F.2d 284,

"a petitioner may not

embark on

(6th

301

a

(3d

fishing

expedition in order to develop claims for which there is no factual
basis."
(N.D.

Hill v. Anderson,

Ohio Dec.

(11th Cir.
federal

14,

2011)

habeas

vehicle for a

No.

2010);

4:98-CV-0795,

Borden v.

Allen,

2010 WL 5178699,
646

rules

is

the

notion

that

a

habeas

whether petitioner

is

must first identify the

Bracy,

520 U.S.
Here,

John's

any

other

Abbey

subsequent

this

Mr.

that

investigation

evidence

ineffective6

in

is

to

^essential elements'

seeks

documentation

reflect

thereof.

to

leave

to

within

allegations

support

failing

a

an effort

[Rule

his

Mr.

of

claim

investigate

sexual

that

the

possession

Rivera's

St.

and

any

use

for

counsel

was

abuse

trial

he

incident

of

intended

whether

[the

judicial-bias

subpoena

the

6] ,

of that claim."

(addressing the elements of a

Rivera

not

"[b]efore addressing

entitled to discovery under

at 904

is

claim.").

Court]

and

case

so-called fishing expedition via discovery,

As the Supreme Court instructed in Bracy,

files

810 n.31

("Inherent in the fact pleading requirement of the

to find evidence to support a

claim).

F.3d 785,

at *8

was

sexually

abused as a child.7

6
To prevail on a claim for ineffective assistance of counsel, "a
petitioner must show both deficient performance and prejudice."
Conner v.
GDCP Warden, No. 13-13928, 2015 WL 1651885, at *11 (11th Cir. Apr. 15, 2015)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
"To prove
deficient performance, a petitioner must show that 'counsel's representation
fell below an objective standard of reasonableness.'"
Id.
(quoting
Strickland, 466 U.S. at 688).
"To establish prejudice, a petitioner must
17

In

light

Circuit

have

performance,

of

these

standards,

clearly

a

court

held

must

that

avoid

and

xx[i]n

reviewing

Athe

distorting

using

performance

xfrom counsel's perspective at the time.'"

(quoting
focuses

218

F.3d

Strickland,
its

1305,

466

attention

the

Court

and

States,

evaluate

Supreme

hindsight'

United

must

the

1316

U.S.

on

the

reasonableness

at

(11th

counsel's

effects

of

of

counsel's

Chandler v.

information

2000)

(en

banc)

Accordingly,

689) .

Cir.

Eleventh

the

Court

Mr.

Johnson

and

Mr.

Hawk

had before them at the time their decisions were made

(roughly 2 001

to

Rivera's

2004).

statement

On
to

occurred.

the

one

both

On

them

the

that

hand,
and

defense
Dr.

other hand,

Dr.

Lisak

Mr.

Rivera's

who

counsel

Lisak

that

defense

behavior

suffered childhood sexual

abuse,

had Mr.
no

counsel
was

that

if

as

a

child,

and

that

defense

abuse

had the

consistent

ever

opinion of

with

such abuse

it was likely to have occurred at the private,
attended

sexual

own

someone

did occur

religious school he

counsel

should

conduct

a

demonstrate 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.'"
Id.
(quoting Strickland, 466 U.S. at 694).
As i t relates to a
petitioner challenging a death sentence, "a petitioner establishes prejudice
by showing that ^there is a reasonable probability that, absent the errors,
the sentencer .

.

. would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.'"
466 U.S. at 695)
7

Id.

(quoting Strickland,

(ellipses in original).

As the Court understands Mr.

Rivera's briefs,

one use for this evidence

is to support his claim that the "state court fact-finding process was
unreasonable and inadequate because the court unjustifiably refused to
consider important evidence that contradicts the
state habeas
court's

ultimate findings."
(Doc. 65 at 7.)
As will be discussed in greater detail
below, Mr. Rivera repeatedly acknowledges that the requested incident files
were

not

available,

proceeding.

or

even

Accordingly,

known

to

exist,

the Court finds

evidence is not supported by good cause.
18

until

after the

state

habeas

that this particular use of the

background investigation because i t is not uncommon for victims of
childhood sexual abuse to block such memories.
142;

Doc.

31,

Ex.

(Doc.

discovery of

incident

sexual abuse from St.

Rivera's
Yet,

name

Mr.

documents

Recognizing

endeavors

to

in

any

brief

relevant

the

files

of

does

to

not

his

severity

of

files
explain

claim

Mr.

as

for

state

habeas

at

the

time

proceeding,

repeatedly acknowledge.8

a

of

fact

these

argument provided

Rivera's

which Mr.

of

abuse.

particular
assistance.

sentence,

In so doing,

Mr.

victim

ineffective

Rivera's

expand on the minimal

a

how

the

Court

in brief

to

the Court must first

note that the record clearly shows that these
available

Mr. Rivera now

purportedly to determine if Mr.

the

uncover a basis for his request.

not

78 at

and any other documentation of

John's Abbey,

appears

Rivera's
are

Ex.

8 0A at 54-58.)

In support of his ineffective assistance claim,

seeks

31,

incident files were

trial

Rivera

or

even

and

Dr.

at

his

Lisak

Therefore, to the extent Mr. Rivera seeks

8
Doc.
56 at 10
("Unfortunately, at the time of the state habeas
proceedings, it was virtually impossible to obtain information directly from
the Catholic Church and its affiliates regarding allegations of sexual abuse

by its clerical members.
Recently, the stone wall the Church erected against
such inquiries has begun to crumble, and new information has come to light
regarding allegations of abuse brought against the Catholic Church school
that Mr.

Rivera attended.");

id. at 14-15

("[T]he existence of this evidence,

in the hands of third parties, was not known and was not discoverable" at the
time of Mr. Rivera's habeas proceeding."); id. at 16 ("Since the state habeas
hearings, new information has become available regarding sexual abuse of
students at Mr. Rivera's school during the period in which he attended it.");
id.

at 17

("[C]ounsel involved in several lawsuits against St.

John's Abbey,

on the basis of the predatory sexual conduct of Father Schulte and others,

only recently learned that the Abbey has 'incident' files on sexual abuse
allegations against its clergy, including Father Schulte."); Doc. 56, Ex. A
("In the course of a deposition taken, we learned that the Abbey maintains
'incident' files on sexual abuse allegations.
This was the first I ever
heard of such documents."); Doc. 31, Ex. 80A at 74 (testimony of Dr. Lisak
that these records were not "present back in 2001").
19

these documents to show that they existed at his trial and that his

counsel acted unreasonably by not discovering them,
must

fail.

Because Mr.

unavailable,

Rivera does not dispute that these documents were

the

to

Lisak's

recommendation

Rivera's

use

Court

intends

them

Rivera

background,

that

discovery

Mr.

would

on

Rivera

bolster

was

his

proceeds

to

show

and

then

evidence of the abuse.

however,

the

these
a

claim

potential

evidence that Mr.
available

to

White

that

if

an

may

documents,

victim
that

of

Rivera's

benefit

have

he

heeded

Dr.

into

Mr.

uncovered

some

other

if the Court permitted Mr.
and

the

the

counsel

time

of

counsel

that

investigation

abuse,

defense

assumption

defense

conducted
counsel

the

at

documents

proof

of

should

hindsight

and

such

have

Colegio.

revealed
abuse

conducted

Importantly,

late

discovered

Rivera was abused does not change the information

defense

v.

under

In other words,

an investigation into Mr.

See

such a request

counsel

Singletary,

972

at

the

F.2d

time

1218,

of

Mr.

1220

Rivera's

(11th

trial.

Cir.

1992)

("Courts also should at the start presume effectiveness and should

always
Thus,

avoid
even

second

if

Mr.

guessing

Rivera

with

the

benefit

now uncovered

evidence

of

through

memory or otherwise that he was abused at Colegio,
would not
trial.

alter

And

the

while

reasonableness
Mr.

Rivera

has

of defense

missed the

critical

final

step.

how

his

these

own

evidence

choices

a victim of abuse,

On a motion

20

that

counsels'

demonstrated

could be probative of whether he was

hindsight.")

at

records

he has

for discovery,

the

Court must inquire into whether "the evidence sought would lead to

relevant evidence regarding his petition."
at

970

(emphasis

added).

Therefore,

Mr.

Payne, 89 F.
Rivera

must

Supp. 2d

demonstrate

that the evidence would be probative of his claim for ineffective

assistance, not just that he may have suffered the abuse.
has not

done.

Moreover,
relevant

to

even if

his

the records were available or in

ineffective

assistance

claim,

Mr.

overstated

occurred"

at

that

Mr.

Colegio.

Rivera seeks the St.

appears

in

arguments,

Rivera
(Doc.

"adamantly

31,

Ex.

78

denied
at

any investigation of

sexual

abuse.

any

Even

On

abuse

so,

Mr.

these

limited

the Court cannot conclude that the request is based on

the

discovery because

(1)

Dr. Lisak opined that Mr.

consistent
of

with

sexual

Court

someone

abuse

understands

Breaking down Mr.

as

victims

not

John's Abbey records to determine if his name

request

was

is

It cannot

that

142.)

anything other than speculation and hypothesis.
Rivera's

some way

Rivera

entitled to discovery to engage in a fishing expedition.
be

This he

who

often

had

block

been

it,

he

seeks

Rivera's behavior

sexually

memories

the

of

abused

the

and

abuse;

(2)

Father Schulte allegedly sexually abused boys roughly Mr. Rivera's

age while Mr.
find

Rivera

documentation

However,

that

of

these

attended Colegio; and
his

alleged

reports

exist

abuse
does

in

(3)
the

nothing

Mr.

Rivera might

incident
to

files.

support

the

proposition that Mr. Rivera's name might be found within them.

To

allow Mr. Rivera to subpoena the St. John's Abbey incident reports

21

to

search

Mr.

for

Rivera

his

has

name

based

adamantly

on

such

attenuated

maintained

he

was

assertions —

not

when

abused — would

expand the discovery doctrine well beyond its intended scope.
Borden v.

in

the

the

Allen,

646 F.3d 785,

fact pleading requirement of

notion

that

a

fishing
support

a

habeas

expedition

via

claim.");

Cir. 2 009)

case

is

discovery,

Stephens

v.

the

not

an

where

additional

Cal.,

federal

a

vehicle

effort

Branker,

the

petitioner

information

"offered

may

exist"

quotations omitted)); Calderon v. U.S.
of

(11th Cir.

to

570

2011)

("Inherent

habeas
for

a

find

F.3d

rules

is

so-called

evidence

198,

213

to

(4th

(finding that the district court did not err in denying

discovery
that

810 n.31

See

98

F.3d 1102,

1106

no

more

(internal

Dist.

(9th Cir.

than

speculation

alterations

and

Court for the N. Dist.

1996)

("[C]ourts

should not

allow prisoners to use federal discovery for fishing expeditions to
investigate mere speculation.").

Based on

the

foregoing,

the

Court

concludes

that Mr.

Rivera

has not presented good cause to allow the requested discovery,

and

his motion is DENIED.

III.

Mr.

present

Mr.

Rivera

the

Antiterrorism

"28

Rivera's Motion for an Evidentiary Hearing

U.S.C.

additionally

testimony
and

§ 2254

of

Effective

sets

requests

Dr.
Death

several

an

Lisak.
Penalty

limits

on

evidentiary

As
Act

the

hearing

amended
of

1996

power

of

by

to

the

("AEDPA"),

a

federal

court to grant an application for a writ of habeas corpus on behalf

22

of

a

state

prisoner."

Pinholster,

131

S.

Ct.

at

1398.

As

relevant to the present motion for an evidentiary hearing,

courts

may

only

relief

to

a

claims were adjudicated on the merits

in

involved

an

Federal

as

or

unreasonable

application

determined

(2)

resulted

by

in

determination of

the

a

light

of

this

of,

decision

the

facts

highly

28 U.S.C.

deferential

Court addressed the permissible scope of

if

that
or

established

of

was

light

whose

contrary to,

Court

that

in

prisoner

clearly

Supreme

presented in the State court proceeding."

In

state

resulted in a decision that was

unreasonable

law,

States;

habeas

federal

the state court

adjudication "(1)

grant

is

the

United

based

of

the

on

an

evidence

§ 2254(d).

standard,

the

Supreme

evidence where there has

been an adjudication on the merits and held that federal courts are
"limited

to

the

adjudicated

the

record

claim

that

on

was

the

before

merits,"

the

and

state

court

therefore

"evidence

introduced in federal court has no bearing on § 2254(d)(1)
Pinholster,

131 S. Ct.

at 1398.

that

review."

As the Eleventh Circuit explained

just this year, the district court may not exercise its discretion
to

grant

an

evidentiary hearing

until

after

the

petitioner

has

demonstrated an error or unreasonable determination as contemplated

by § 2254(d).
2015).

And

Landers v. Warden, 776 F.3d 1288, 1295
while

the

expressly applied to

Supreme

Court's

§ 2254(d)(1),

rule

in

(11th Cir.

Pinholster

only

the Eleventh Circuit Court of

Appeals held that the logic applies equally to § 2254(d)(2), which
expressly indicates that the federal court review the state court
23

ruling

"in

light

proceeding."

Here,

Mr.

process was

of

highly

witness.
Mr.

the

evidence

presented

(quoting 28 U.S.C.

Rivera

in

the

State

court

§ 2254(d)(2)).

argues that "the state court

adjudicatory

fundamentally flawed by the habeas court's preclusion

relevant

testimony

from

a

critical

fact

and

expert

As a result of this defect in the factfinding process,

Rivera

facts

Id.

of

was

has

established that

unreasonable."

the

(Doc.

state

57

at

court's

21.)

determination of

Thus,

Mr.

Rivera

attempts to use this extra-record evidence to prove that the state
court acted unreasonably.

Based on Pinholster,

be

premature.

Indeed,

the Court finds ruling on this issue to

the

Eleventh

Circuit

has

recognized

that

consideration of a request for an evidentiary hearing and ruling on
the

merits

"usually

Rivera

go

must,

of

a

petition

are

hand-in-hand."

in

order

to

"intertwined

Landers,

obtain

the

776

determinations"

F.3d

habeas

at

that

1294-95.

relief

he

Mr.

requests,

prove that the state court's adjudication was flawed — either based
on

an

unreasonable

application

of

law or

determination

of

fact.

Only after he passes this hurdle — on the evidence contained in the
record — may

a

district

court

use

its

discretion

to

evidentiary hearing or afford him the relief sought.

Mr.

appears to recognize that this is the appropriate result.
Smith v.

Cain,

a

case

out

of

the

for the proposition that

24

Fifth Circuit

Court

grant

an

Rivera

He cites

of Appeals,

Pinholster's limitation on federal evidentiary hearings
does not apply once the district court concluded, solely
on

the basis

of

the

state

court

record,

that

the

state

trial court unreasonably applied federal law. Because the
state court decision is no longer entitled to deference,
the federal court is free to properly address the claim
and grant appropriate relief.

708

F.3d

628,

635

(5th

Cir.

2013)

(internal

quotations

omitted)

(emphasis added) .

On these particular facts and because briefing on the merits
has yet to take place,

the Court denies Mr.

Rivera's motion for an

evidentiary hearing at this time.

When arguing the merits of his

claims,

Mr.

motion

and,

he

if

Rivera
is

may renew his

able to satisfy the

for

evidentiary hearing

requirements of

§ 2254(d),

the

Court will consider a request to present the testimony of Dr. Lisak
at that time.9

IV.

Accordingly,

Conclusion

the Court hereby DENIES Mr.

Rivera's Motion for

Discovery and Motion for an Evidentiary Hearing.

9

Mr.

Rivera

also

requests that the Court

defer

(Docs.

56 & 57.)

its consideration of

these motions pending the Supreme Court's decision in Brumfield v.
F.3d 918

(5th Cir.

2014),

cert.

granted 135 S.

Ct.

752

(Dec.

5,

Cain,

2014).

744
In

that case, the district court found that the petitioner cleared the § 2254(d)
hurdle and conducted an evidentiary hearing.
The Fifth Circuit reversed,
concluding that an evidentiary hearing was unnecessary because the state
court's determination should have been afforded AEDPA deference.

The Supreme

Court granted certiorari to decide, inter alia, "[w]hether a state court that
considers the evidence presented at a petitioner's penalty phase proceeding
as determinative of the petitioner's claim of mental retardation under Atkins
v. Virginia . . . has based its decision on an unreasonable determination of
facts [.] "

As

has

been

discussed above,

the

Court

finds

that

the

motion

for an

evidentiary hearing is premature and should be asserted, if necessary and
appropriate, when addressing the merits of Mr. Rivera's claims.
For the
same reason, the Court denies Mr. Rivera's request to reserve ruling.
25

Following briefing on the merits of Mr.

Rivera's claim,

Mr.

Rivera

may renew his Motion for an Evidentiary Hearing, if appropriate.

ORDER ENTERED at Augusta, Georgia, this

/Q ^day of June,

2015.

UNITED/STATES DISTRICT JUDGE
•^OtTTflERN

26

DISTRICT OF GEORGIA