Halvorsen v. Simpson
Filing
163
MEMORANDUM ORDER: (1) DENYING AS MOOT Petitiner's 136 AMENDED MOTION for Reconsideration re 129 Order on Motion for Discovery; (2) DENYING Petitioner's 130 MOTION for Partial Reconsideration of 129 Order denying Discovery. Signed by Judge David L. Bunning on 11/19/12.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 08-484-DLB
LEIF HALVORSEN
vs.
PETITIONER
MEMORANDUM ORDER
PHILIP W. PARKER, Warden
RESPONDENT
*** *** *** ***
1.
Introduction
This matter is before the Court upon Petitioner’s Motion for Partial Reconsideration
of Order Denying Discovery (Doc. # 130) and Petitioner’s Amended Motion for Partial
Reconsideration of Order Denying Discovery (Doc. # 136). Petitioner’s Amended Motion
incorporates each of the arguments presented in the original Motion, and includes an
additional argument. The motions have been fully been fully briefed (Docs. # 150, 155)
and are ripe for consideration.
Petitioner’s original Motion for Partial Reconsideration (Doc. # 130) is denied as
moot because each of the arguments presented therein have been incorporated into
Petitioner’s Amended Motion. And for the reasons explained herein, Petitioner’s Amended
Motion for Partial Reconsideration (Doc. # 136) is also denied.
2.
Petitioner’s motion for reconsideration
Petitioner’s motion for reconsideration focuses on the Court’s prior conclusion that
Claims V and XXIII are procedurally defaulted, and that Petitioner cannot conduct discovery
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on those claims because he has failed to show cause and prejudice to excuse the default.
(Doc. # 129, at 4, 9-10). Petitioner argues that he did, in fact, show cause and prejudice
to excuse the default, and the Court erred in finding to the contrary. Petitioner directs the
Court to footnotes 431 and 1027 on pages 122 and 322, respectively, of his habeas petition
wherein he asserts that his appellate counsel was ineffective for failing to raise each of
these claims on direct appeal, and counsel’s ineffectiveness serves as cause to excuse the
default. Petitioner asserts that the Court must have “overlooked” these footnotes. (Doc.
# 130, at 1). Petitioner also argues that Supreme Court’s recent decision in Martinez v.
Ryan, 132 S. Ct. 1309 (2012) provides additional justification that Claims V and XXIII are
not procedurally defaulted.
Petitioner’s attempt to fault the Court for “overlooking” his explanation of cause and
prejudice is not well taken. In the Warden’s response to the motion for discovery, the
Warden argued that Claims V and XXIII were procedurally defaulted and Petitioner has
otherwise failed to demonstrate cause and prejudice to excuse the default. (See Doc. #
108, at 12, 22). Petitioner did not directly address this argument in his reply brief, nor did
he cite back to footnotes buried in his habeas petition. The Court has no obligation to
search the 412-page petition to find a basis to rule in Petitioner’s favor on the discovery
motion. Simply put, because Petition did not address this argument in his motion or reply,
the Court did not err in concluding that Petitioner has shown cause/diligence to excuse the
defaulted claims.
Additionally, the Court need not address Petitioner’s footnotes concerning
cause/prejudice, or the applicability of Martinez, because the requested discovery will not
aid the court in adjudicating any issues relevant to these claims.
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3.
The requested discovery in furtherance of Claim 5 will not aid the Court
in adjudicating the claim
In Claim V, Petitioner argues that the trial court violated his due process right to be
adequately informed of the charges against him by instructing the jury that he could be
found guilty of intentional murder on an accomplice liability theory even though he was
indicted only on a principal liability theory. In support of this claim, Petitioner seeks to
depose trial counsel on “his belief that the prosecution was proceeding solely on a principal
murder theory of liability and how that belief impacted the defense theory he presented at
trial.” (Doc. # 99 at 19). However, trial counsel’s belief is irrelevant to the adjudication of
Claim V.
The Sixth Amendment guarantees citizens the right to be informed of the nature and
cause of the charges against them. Faretta v. California, 422 U.S. 806, 818 (1975).
“Because [this] right [is] basic to our adversary system of criminal justice, [it is] part of the
‘due process of law’ that is guaranteed by the Fourteenth Amendment to defendants in the
criminal courts of the States.”
Id.
The right can be violated if an indictment is
“constructively amended” such that “the terms of [the] indictment are in effect altered by the
presentation of evidence and jury instructions which so modify essential elements of the
offense charged that there is a substantial likelihood that the defendant may have been
convicted of an offense other than the one charged in the indictment.” United States v.
Budd, 496 F.3d 517, 521 (6th Cir. 2007) (quoting United States v. Smith, 320 F.3d 647, 656
(6th Cir. 2003)). If the indictment is constructively amended, it is considered per se
prejudicial error and reversible error.
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Prisoners may establish such an amendment by proving that the “important
functions of an indictment were undermined by both the evidence presented and the jury
instructions.” Id. at 522. That is all that is required to prove a violation of the defendant’s
Sixth Amendment right; Defense counsel’s belief or strategy is irrelevant to that analysis.
For that reason, any potential deposition testimony from Petitioner’s trial counsel will not
aid the Court in adjudicating Claim V. Therefore, Petitioner’s request to conduct discovery
in furtherance of Claim V is denied.
4.
The requested discovery in furtherance of Claim 23 will not aid the
Court in adjudicating the claim
During the sentencing phase of Petitioner’s trial, the trial court ruled that the
Commonwealth would be allowed to introduce evidence that Petitioner committed another,
unindicted murder to rebut any evidence that Petitioner lacked a significant criminal history.
In light of this ruling, Petitioner asserts that he chose not to present any mitigating evidence
about his criminal history. The trial court then refused to instruct the jury on the lack of
significant criminal history as a mitigating circumstance because there had been no
evidence regarding Petitioner’s criminal history. Petitioner asserts that each of these ruling
denied him due process of law. Specifically, in Claim 23, Petitioner argues that the Court’s
ruling deprived him of due process of law because he was forced to make the “Hobson’s
choice” of foregoing his constitutional right to present mitigating evidence of the lack of a
significant criminal history in order to preserve his “constitutional right to not have unrelated
charges used against him.” (Doc. # 25 at 338).
To support Claim 23 Petitioner seeks to discover the prosecution file concerning the
fourth murder. Petitioner believes that “the Commonwealth never intended to prosecute
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[him] for the murder of James Murray and held off indicting him on that murder until the trial
concluded in this case solely so it could use the murder of James Murray to prevent
Halvorsen from introducing evidence of his lack of significant prior criminal history as
mitigation to refute the prosecution’s future dangerousness argument.” (Doc. # 99 at 13).
Petitioner asserts that the Commonwealth’s intentions were improper, and will be revealed
by examining the prosecution file. However, the Commonwealth’s intentions are irrelevant
to the merits of this claim.
A capital defendant has a constitutional right to introduce “any relevant mitigating
evidence that he proffers in support of a sentence less than death.” Dawson v. Delaware,
503 U.S. 159, 167 (1992). However, “just as the defendant has the right to introduce any
sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof
of its own.”
Id. Simply put, defendants do not enjoy the constitutional right to present
unchallenged mitigating evidence. Here, Petitioner made the strategic decision to forego
presenting evidence that he lacked a criminal history to avoid opening the door to the
Commonwealth to present evidence of the uncharged fourth murder.
The merits of Claim 23 turn solely on a legal issue – whether the trial court properly
ruled that uncharged criminal conduct may be admitted to rebut mitigating evidence.
Stated another way, the Court must determine whether Petitioner had a constitutional right
to keep the government from presenting evidence of the uncharged fourth murder.
Whether or not the government ever intended to charge Petitioner for the fourth murder has
no relevance to that inquiry. Therefore, Petitioner’s request to discover the prosecution’s
file is denied.
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5.
Conclusion
Accordingly, for the reasons previously stated, IT IS ORDERED as follows:
(1)
Petitioner’s Motion for Partial Reconsideration of Order Denying Discovery
(Doc. # 130) is hereby denied as moot; and
(2)
Petitioner’s Amended Motion for Partial Reconsideration of Order Denying
Discovery (Doc. # 136) is hereby denied.
This 19th day of November, 2012.
G:\DATA\DeathPenalty\Halvorsen\Order denying mtn for leave to file a second motion for discovery - DE 130
& 136.wpd
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