Taylor v. Simpson

Filing 66

MEMORANDUM OPINION AND ORDER: (1) Respondent Simpson's 58 Motion filed pursuant to FRCP 59, to Reconsider the 58 Order of March 23, 2011 is GRANTED. (2) The 57 Memorandum Opinion and Order of March 23, 2011 is VACATED and SET ASIDE. (3) Taylor's 45 Motion for Discovery under Rule 6 of the Rules Governing Section 2254 Cases is DENIED. Signed by Judge Jennifer B Coffman on February 6, 2012. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CAPITAL CASE
CIVIL ACTION NO. 06-CV-181-JBC

VICTOR DEWAYNE TAYLOR,

V.

PETITIONER

MEMORANDUM OPINION AND ORDER

THOMAS SIMPSON, Warden,

RESPONDENT

***** ***** ***** *****
The Court reviews Respondent Simpson’s motion filed pursuant to Fed.R.Civ.P. 59
to reconsider the Order of March 23, 2011 [R. 57], which granted in part Petitioner Taylor’s
discovery motion. The Court will grant Simpson’s motion to reconsider [R. 58] because
under Cullen v. Pinholster, ____U.S.____, 131 S.Ct. 1388 (2011), a federal district court’s
review of Taylor’s habeas petition is limited to the record that was before the state court;
therefore, this court cannot consider the discovery Taylor seeks to obtain in further support
of his Batson1 claim.
BACKGROUND
In the interest of judicial economy, the background of this death penalty habeas
case, as detailed at pages 1-3 of the Memorandum Opinion and Order [R. 57], is
incorporated herein by reference.

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Batson v. Kentucky, 476 U.S. 79 (1986).

CULLEN V. PINHOLSTER
Simpson’s motion to reconsider is based primarily on Pinholster, a death penalty
case decided on April 4, 2011, less than two weeks after this Court granted in part Taylor’s
discovery motion. Pinholster was convicted of two counts of murder and sentenced to
death by a California jury.

On appeal, the California Supreme Court affirmed his

conviction. Pinholster then filed two related state habeas petitions asserting that his trial
counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), and he
supported those petitions with educational, medical, and legal records, as well as various
declarations. The state court did not conduct an evidentiary hearing before denying the
claims. The California Supreme Court affirmed that denial without discussion, simply
stating that the petition was denied “on the substantive ground that it is without merit.”
Pinholster, 131 S.Ct., at 1396.
Pinholster then filed a federal habeas petition. The federal district court granted an
evidentiary hearing on Pinholster's Strickland claims. At the evidentiary hearing, Pinholster
questioned one of the doctors who had submitted a declaration in support of Pinholster’s
state court habeas petition, and he also presented two new medical experts. In light of the
additional evidence, the federal district court granted Pinholster's habeas petition. Id. at
1397.
Sitting en banc, the Ninth Circuit affirmed the lower court's grant of habeas relief and
held that the District Court's evidentiary hearing was not barred by 28 U.S.C. § 2254(e)(2).
Id. The Ninth Circuit also determined that new evidence from the hearing could be
considered in assessing whether the California Supreme Court's decision “was contrary

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to, or involved an unreasonable application of, clearly established Federal law” under §
2254(d)(1). Id. Three judges dissented and rejected the majority's conclusion that it was
permissible to look beyond the state court record. They characterized Pinholster's efforts
in federal court as “habeas-by-sandbagging.” Id. at 1398.
The United States Supreme Court granted certiorari to resolve whether “review
under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing
before the federal habeas court.”

Id.

In its analysis, the Court considered the

interrelationship between Sections 2254(d)(1) and 2254(e)(2) of the AEDPA. Reversing
the Ninth Circuit, the Court held that under § 2254(d)(1), a federal habeas court's review
is limited to the record that was before the state court that adjudicated the claim on the
merits, and that any evidence later introduced in federal court is irrelevant to § 2254(d)(1)
review. Id.
The Supreme Court clarified that a federal district court should consider whether to
grant a substantive evidentiary hearing pursuant to § 2254(e)(2) only if the state court did
not decide the issue under review on the merits, noting as follows:
. . . not all federal habeas claims by state prisoners fall within the scope of
§ 2254(d), which applies only to claims ‘adjudicated on the merits in State
court proceedings.’ At a minimum, therefore, § 2254(e)(2) still restricts the
discretion of federal habeas courts to consider new evidence when deciding
claims that were not adjudicated on the merits in state court.
Id. at 1401. The Supreme Court further clarified that a decision on the merits need not be
comprehensive. Even if the claim was summarily denied on the merits without discussion
or analysis, as was the case with Pinholster's claim, the federal court’s review is still limited

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to the state court record. Id. at 1402. (“Section 2254(d) applies even where there has
been a summary denial.”)
ANALYSIS
Pinholster provides an alternative bar to the consideration of “new” evidence on
federal habeas review under § 2254(d). Thus, in considering whether to allow discovery
on a federal habeas claim, the district court must first determine whether the state court
adjudicated the claim on the merits. If so, then “review under § 2254(d)(1) is limited to the
record that was before the state court.” Sheppard v. Bagley, 657 F.3d 338, 349 (6th Cir.
2011). If this court is limited to the state-court record and unable to consider anything
beyond it to decide Taylor’s Batson claim, permitting discovery and additional evidence as
to that claim would be futile and a waste of judicial resources. See Parrish v. Simpson,
3:09-CV-254-H, 2011 WL 1594789 (W.D. Ky., April 27, 2011), also decided
post-Pinholster.
If the state court did not decide the issue under review on the merits, however, then
a different analysis must be performed, and a federal district court must consider whether
to grant a substantive evidentiary hearing pursuant to § 2254(e)(2). Pinholster recognized
that “[n]ot all federal habeas claims by state prisoners fall within the scope of § 2254(d),
which applies only to claims ‘adjudicated on the merits in State court proceedings.’ At a
minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to
consider new evidence when deciding claims that were not adjudicated on the merits in
state court.” Pinholster, 131 S.Ct. at 1401.

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Thus, the first order of business is to determine whether Taylor’s Batson claim was
decided on the merits in state court. On direct appeal, Taylor asserted forty-four (44)
claims of error, including his Batson claim. The Kentucky Supreme Court summarily
rejected the Batson claim, among others, noting that its opinion concentrated only on
meritorious claims. Specifically, the Kentucky Supreme Court stated:
Taylor, through counsel, raises forty-four assignments of alleged error
in this appeal. We have carefully reviewed all of the issues presented by
Taylor and this opinion will concentrate on the question of the admissibility
of the Wade confession and the propriety of the trial judge's refusal to grant
a second change of venue. Allegations of error which we consider to be
without merit will not be addressed here.
Taylor v. Commonwealth, 821 S.W.2d 72, 74 (Ky. 1990).
Thereafter, Taylor moved the trial court, pursuant to RCr 11.42, to vacate, set aside,
or correct his sentence. In a proposed amendment, Taylor again raised his Batson claim
in this post-conviction action and later introduced evidence in support of that claim at an
evidentiary hearing. The trial court denied Taylor’s RCr 11.42 motion, and the Kentucky
Supreme Court affirmed on appeal. Taylor v. Commonwealth, 63 S.W.3d 151 (Ky. 1991).
On direct appeal, the Kentucky Supreme Court summarily denied Taylor’s Batson
the claim without any explanation.

Nevertheless, a summary denial constitutes an

adjudication on the merits. To reiterate from Pinholster, “[s]ection 2254(d) applies even
where there has been a summary denial. See Richter, 562 U. S., at ___ , 131 S.Ct., at
786.” Id. at 1402. Thus, this Court’s review of Taylor’s habeas petition under § 2254(d)(1)
is limited to the record that was before the state court. It would therefore be futile to allow
discovery on Taylor’s Batson claim as the Court is unable to consider any evidence that
is not a part of the state-court record.
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Notwithstanding Taylor’s argument that Pinholster addressed only a fully developed
claim, adjudicated on the merits in state court, and decided in federal court under §
2254(d)(1) and that Pinholster did not concern habeas litigation under § 2254(d)(2), he is
not entitled to discovery on his Batson claim under 2254(d)(2):
The plain language of 28 U.S.C. § 2254(d)(2) also limits the Court’s review to of [sic]
“the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2);
Pinholster, 131 S.Ct. at 1400 n. 7. Thus, under both Section[s] of 2254(d), the
Court may not consider outside evidence unless the petitioner did not already
litigate the issue on the merits.
Trimble v. Bobby, Civil No. 5:10-CV-00149, 2011 WL 1527323, *2 (N.D. Ohio, April 19,
2011). The fact that Taylor’s Batson claim is raised under both § 2254(d)(1) and (d)(2) is
of no moment and does not entitle him to the discovery prohibited by Pinholster.
Accordingly, IT IS ORDERED that:
1. Respondent Simpson’s motion filed pursuant to Fed. R. Civ. P. 59, to reconsider
the Order of March 23, 2011 [R. 58] is GRANTED.
2. The Memorandum Opinion and Order of March 23, 2011 [R. 57] is VACATED
and SET ASIDE.
3. Taylor’s motion for discovery under Rule 6 of the Rules Governing Section 2254
Cases [R. 45] is DENIED.

Signed on February 6, 2012

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