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)

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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

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