Hodge v. Simpson

Filing 70

MEMORANDUM ORDER: Petitioner Benny Lee Hodge's Objections to Discovery & Evidentiary Hearing Order 62 be & are hereby overruled. Signed by Judge David L. Bunning on 1/14/2015. (RKT) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
CIVIL ACTION NO. 13-5-DLB-EBA
BENNY LEE HODGE

vs.

PETITIONER

MEMORANDUM ORDER

RANDY WHITE, Warden

RESPONDENT
*************************

I.

Introduction
This matter is before the Court on Petitioner Benny Lee Hodge’s Objections (Doc.

# 62) to Magistrate Judge Edward B. Atkins’ Order of September 16, 2014 (Doc. # 61), in
which he denied Hodge’s request for discovery and an evidentiary hearing without
prejudice. Judge Atkins reasoned that discovery would be an unhelpful exercise at this
juncture because 28 U.S.C. § 2254(d) limits a federal habeas court’s review to the record
that was before the state court that adjudicated the claim on the merits. Thus, the Court
would be unable to consider newly discovered evidence unless and until Hodge
demonstrates, based on the record before the state court, that his claims are not subject
to the limitations of § 2254(d). Judge Atkins reserved the right to reconsider Hodge’s
motion if and when he makes the required showing.
Although Hodge understands that he may be able to reassert his request at a later
date, he nevertheless takes issue with “the threshold legal determinations made regarding
the availability of factual development pre-AEDPA ruling.” (Doc. # 62 at 2). The Warden
1

having filed a timely Response (Doc. # 66) to Hodge’s Objections, this matter is now ripe
for the Court’s consideration. For the reasons stated below, Hodge’s Objections to
Discovery and Evidentiary Hearing Order (Doc. # 62) be, and are, hereby overruled.
II.

Standard of Review
A district court judge may refer non-dispositive pretrial matters to a magistrate judge

for resolution. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Once the magistrate
judge conducts the necessary proceedings and enters a written order stating the decision,
“[a] party may serve and file objections to the order within fourteen (14) days after being
served with a copy.” Id. The district court will then consider those objections and, if
necessary, “modify or set aside any part of the order that is clearly erroneous or is contrary
to law.” Id. (emphasis added).
The “clearly erroneous” standard is not met simply because the reviewing court
would not have come to the same conclusion, based on the evidence, that the lower court
reached. Heights Cmty Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
Rather, the key inquiry is “whether there is evidence in the record to support the lower
court’s finding, and whether its construction of that evidence is a reasonable one.” Id. “A
finding is clearly erroneous when the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Id.
III.

Analysis
a.

Application of Pinholster

In Cullen v. Pinholster, the Supreme Court granted certiorari to consider, inter alia,
“whether review under § 2254(d)(1) permits consideration of evidence introduced in an

2

evidentiary hearing before the federal habeas court.” 131 S.Ct. 1388, 1398 (2011). The
Court answered this question in the negative, reasoning that the language of § 2254(d)(1)
“requires an examination of the state-court decision at the time it was made,” thus limiting
the federal habeas court’s review “to the record in existence at that same time i.e., the
record before the state court.” Id. Therefore, evidence introduced in a federal evidentiary
hearing has no bearing on the federal habeas court’s review of a claim adjudicated on the
merits, unless the petitioner can “overcome the limitation of § 2254(d)(1) on the record that
was before that state court.” Id. at 1400.
The Court also rejected Pinholster’s assertion that its holding would render §
2254(e)(2) superfluous. Id. This subsection, which “imposes a limitation on the discretion
of federal habeas courts to take new evidence in an evidentiary hearing,” still has force
where § 2254(d)(1) does not bar relief (i.e. claims that were not adjudicated on the merits
in state court proceedings). Id. at 1400–01. “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.
In this case, Hodge requested discovery and an evidentiary hearing on the following
eight claims: Claim 3 (denial of due process due to prosecutor’s conflict of interest); Claim
5 (deprivation of the right to a fair and impartial trial due to jury tampering); Claims 7 and
9 (denial of due process and right to confront accusers due to the prosecutor’s use of
perjured testimony by jailhouse informant and suppression of exculpatory evidence);
Claims 11 and 22 (denial of due process and right to confront accusers due to the
prosecutor’s use of perjured testimony by co-defendant and suppression of exculpatory
evidence); and Claims 15 and 21 (deprivation of the right to effective assistance of
3

counsel). Although the Court does not intend to delve into the merits of these claims at this
time, a brief review of the record suggests that these claims have been presented to the
Kentucky Supreme Court. See Epperson v. Commonwealth, 809 S.W.2d 835, 838 (Ky.
1990).
Given AEDPA’s rebuttable presumption that claims presented to the state court have
been “adjudicated on the merits,” Hodge’s claims will likely be subject to the limitations of
§ 2254(d)(1). Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011); see also Johnson v.
Williams, 133 S. Ct. 1088, 1094 (2013) (extending this rebuttable presumption to instances
where the state court rules against the defendant and issues an opinion that addresses
some claims but does not expressly address the federal claims). That being the case,
Judge Atkins reasoned that Pinholster would prohibit this Court from considering any new
evidence introduced in a federal evidentiary hearing unless Hodge can overcome the
limitations of § 2254(d)(1), either by showing that these claims have not been adjudicated
on the merits or by demonstrating that the state court’s adjudication on the merits resulted
in a decision that was contrary to clearly established federal law.
Even if an evidentiary hearing was not yet warranted, Hodge argued that discovery
would still be appropriate because Pinholster did not alter the “good cause” standard for
discovery in federal habeas cases. See Rule 6 of the Rules Governing § 2254 Cases in
the United States District Courts. While Hodge was technically correct in stating that
Pinholster did not explicitly address the availability of discovery in cases subject to §
2254(d)(1) limitations, Judge Atkins saw no reason why its holding would not apply with
equal force to new evidence obtained through discovery. After all, “[i]t would defy logic to
preclude a petitioner from developing factual information in an evidentiary hearing, but
4

allow him to introduce same factual information via discovery and expansion of the record.”
(Doc. # 61 at 8).
In his Objections, Hodge simply reasserts the same argument, stating that “the
Supreme Court’s decision in Pinholster [ ] does not alter the framework for discovery under
Habeas Rule 6.” (Doc. # 62 at 3). He fails to explain why Judge Atkins erred in reasoning
that Pinholster would apply with equal force to discovery. Based on its own review of
Pinholster, the Court finds Judge Atkins’ opinion to be thorough, well-reasoned and
supported by the evidence in the record. Without offering any new points for the Court’s
consideration, Hodge fails to give this Court the definite and firm conviction that a mistake
has been committed.
Hodge then insists that Pinholster is distinguishable from his own case because
Pinholster received “two (2) rounds of post-conviction processes with a full compliment of
experts and investigators, where the state court assumed his allegations as true, and then
[ ] returned to federal court and changed his theory.” (Doc. # 62 at 4). Hodge states that
“Pinholster could not establish diligence in those circumstances.” (Id.). By contrast, Hodge
“received a single process, where he had to sue for funds on two (2) claims–but received
nothing on the other allegations–the state court did not assume his allegations as true, and
he is not attempting to change his story in federal court.” (Id.). Instead, Hodge asserts that
the state precluded him from conducting discovery, denied him an evidentiary hearing,
engaged in improper credibility determinations and disposed of his claims in summary
fashion. (Id.). The underlying implication is that the Court should allow Hodge to proceed
with discovery because he has been diligent in pursuing his claims in state court.

5

However, Hodge fails to explain why Judge Atkins should have distinguished his
case from Pinholster on grounds of diligence, which relates to § 2254(e)(2):
(e)(2) If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that–
(A)

the claim relies on –
(I)

(ii)

(B)

a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court that was previously unavailable; or
a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and

the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense

§ 2254(e)(2)(A)(ii) (emphasis added).
Because this “diligence” provision resides within § 2254(e)(2), the Court will analyze
Hodge’s objection in the context of his request for an evidentiary hearing. As the Court has
already explained in detail, Pinholster prohibits a federal habeas court from considering any
new evidence introduced in a federal evidentiary hearing, unless and until a petitioner
overcomes the limitations of § 2254(d)(1). Thus, § 2254(e)(2) has force where § 2254(d)(1)
does not bar relief (i.e. claims that have not been adjudicated on the merits in state court).
Applying this holding to the current posture of Hodge’s case, the Court believes that it
would be premature to consider whether Hodge has been diligent in pursuing his claims in
state court.

6

b.

Wellons and Bracy

In his motion, Hodge relied heavily on Wellons v. Hall, which centered on jurors’
alleged improper contact with the presiding judge and bailiff during Wellons’ rape and
murder trial. 558 U.S. 220 (2010). Wellons, who learned of this contact after being
convicted and sentenced to death, raised the issue unsuccessfully on direct appeal. Id. at
221. He then sought discovery on the issue in state habeas proceedings, but the state
court denied his request because “the matter had been decided on the merits and thus was
res judicata.” Id. The federal habeas court also denied Wellons’ request for discovery and
an evidentiary hearing, reasoning that his claims were procedurally barred, and the
Eleventh Circuit affirmed. Id. at 221-222. Soon after, the Supreme Court held that a state
court decision not to review the merits of a petitioner’s claim on the ground that it had done
so already created no bar to federal habeas review. Id. (citing Cone v. Bell, 129 S. Ct.
1769, 1780-82 (2009)). In light of Cone, the Court granted certiorari, vacated the judgment
below and remanded Wellons’ case to the Eleventh Circuit to consider whether his
allegations, combined with the undisputed facts, warranted discovery and an evidentiary
hearing. Id. at 223.
Hodge argued that he was entitled to discovery and an evidentiary hearing because,
like Wellons, “the alleged misconduct took place entirely off the record and the state court
never engaged in any fact-finding on the matter.” (Doc. # 50 at 2). However, Judge Atkins
found that Hodge’s case was distinguishable from Wellons because the state court had not
addressed Wellons’ claim on the merits. (Doc. # 61 at 10). As a result, the federal habeas
court “was not constrained by § 2254(d) and could have considered new evidence had they
not improperly found Wellons’ misconduct claim procedurally barred.” (Id.). Because the
7

Kentucky Supreme Court has likely adjudicated Hodge’s claims on the merits, “this Court
is constrained by the state court record and cannot consider any new evidence in deciding
whether the state court relied on an unreasonable determination of the facts.” (Id. at 1011).
While Hodge agrees with Judge Atkins’ factual summation of Wellons, he objects
to Judge Atkins’s conclusion, pointing out a “critical distinction that establishes that Wellons
supports his request.” (Doc. # 62 at 6). Specifically, Hodge states that “the claim upon
which Wellons ultimately received a hearing was a direct appeal claim addressed by the
state court on the merits.” (Id.). This statement is patently incorrect. Under Pinholster, a
federal habeas court cannot consider information introduced in a federal evidentiary
hearing for claims adjudicated on the merits in state court, unless the petitioner shows that
the state court’s adjudication resulted in a decision that was contrary to clearly established
federal law. As Judge Atkins observed, Wellons’ claims were not adjudicated on the merits
in state court, so the federal habeas court never had to consider whether the state court’s
adjudication resulted in a decision that is contrary to clearly established federal law. In
short, Wellons’ claim was not adjudicated on the merits, and thus, this case does not
support Hodge’s request.
Hodge’s motion also references Bracy v. Gramley, in which Bracy was convicted of
murder before a judge who was himself later convicted of accepting bribes from defendants
in criminal cases. 520 U.S. 899 (1997). Although the trial court judge did not accept a
bribe in Bracy’s case, Bracy alleges that the judge had an interest in a conviction in his
case to deflect suspicion that he was taking bribes in other cases around the same time.
Id. at 901. While pursuing federal habeas relief, Bracy sought discovery and an evidentiary
8

hearing to further develop his claims, but the court denied his request, and the Seventh
Circuit affirmed. Id. at 902-03. The Supreme Court then granted certiorari “to address
whether, on the basis of the showing made in this particular case, petitioner should have
been granted discovery under Habeas Corpus Rule 6(a) to support his judicial-bias claim.”
Id. at 903. The Court noted that, if it were possible to indulge the presumption that public
officials have properly discharged their official duties, it “might well agree with the Court of
Appeals that petitioner’s submission and his compensatory-bias theory are too speculative
to warrant discovery.” Id. at 909. That presumption having been thoroughly rebutted by
the judge’s corruption conviction, and Bracy having shown that his trial attorney was a
former associate of the judge “in a law practice that was familiar and comfortable with
corruption,” the Court held that Bracy had established “good cause” for discovery. Id.
Hodge argued that his case was comparable to Bracy because his claims, although
somewhat speculative at this stage, satisfy the Rule 6 standard. Specifically, Hodge stated
that his claims “‘show reason to believe’ he ‘may’ be able [to] establish an entitlement for
relief ‘if the facts are fully developed.’” (Doc. # 48 at 14-15). Judge Atkins found that Bracy
was distinguishable from Hodge’s case because the claims at issue were not adjudicated
on the merits in a state court proceeding, and thus, the federal habeas court was free to
consider new evidence. Even if Hodge was able to satisfy the “good cause” standard for
discovery under Rule 6, he has not yet shown that the Court would be able to consider
such evidence. And as Judge Atkins observed, there is little point in conducting discovery
or holding an evidentiary hearing if the Court cannot consider new information.
In his objection, Hodge argues that Bracy supports his request for three reasons, all
of which are set forth with little to no analysis. First, Hodge argues that Judge Atkins’
9

treatment of Bracy “creates tension with the aforementioned Wellons case.” (Doc. # 62 at
7). It does not. Judge Atkins’ reading of Bracy may not square with Hodge’s interpretation
of Wellons, but this Court has already dismissed that as incorrect. Second, Hodge
complains that Judge Atkins’ application of Bracy penalizes him for his “diligence in raising
his claims in state court.” (Id.). As the Court has already explained herein, the diligence
inquiry is irrelevant at this juncture. And third, Hodge argues that Bracy supports his
request because he, like Bracy, has “never had the opportunity to fairly present his claims.”
This assertion is equally unavailing, as the Court will explain in the next section.
c.

Kentucky’s Post-Conviction Procedures

Hodge argued that discovery in federal court was necessary because Kentucky Rule
of Criminal Procedure 11.42, governing motions to vacate, set aside or correct a sentence,
creates a “categorical bar on discovery [that] fails to adequately vindicate the substantive
rights provided by RCr 11.42.” (Doc. # 48 at 2). Judge Atkins rejected this position,
reasoning that RCr 11.42 provides for a hearing, and counsel if necessary, when there are
material issues of fact that cannot be determined on the face of the record. (Doc. # 61 at
11). These mechanisms for factual development may not have given Hodge the requested
relief, but that, in and of itself, does not mean that the process was inadequate.
Hodge acknowledges that RCr 11.42 provides for a hearing and counsel in some
circumstances, but nevertheless objects to Judge Atkins’ conclusion because he believes
that these measures are insufficient to remedy the lack of discovery even when an
evidentiary hearing is granted. (Doc. # 62 at 8). As a result, Hodge posits that “if the
prosecution has suppressed exculpatory and material evidence, proof of the prosecutor’s
misconduct will likely remain undiscovered and unavailable to present in the hearing.” (Id.).
10

Although Hodge is correct in asserting that there is no right to discovery in
proceedings on a motion to vacate, set aside or correct sentence, this does not render the
process insufficient. Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005), overruled
on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). This rule
regarding discovery is consistent with the very purpose of RCr 11.42, which “exists to
provide the movant with an opportunity to air known grievances, not an opportunity to
conduct a fishing expedition for possible grievances.” Id. However, just because a movant
does not have a right to discovery does not mean that he is totally without relief. If further
factual development is needed to decide certain issues, then an evidentiary hearing is
available for that purpose.
d.

Reading of § 2254(e)

For his penultimate objection, Hodge simply complains of Judge Atkins’ conclusion
that § 2254(e)(2) did not provide Hodge with a vehicle around Pinholster. (Doc. # 62 at 9).
Hodge maintains that “the application of Pinholster in this manner undercuts the virtue
provided by [§] 2254(e)(2) and penalizes otherwise diligent habeas petitioners.” (Id.).
As explained herein, Pinholster is quite clear that evidence introduced in federal
court has no bearing on its review of a claim adjudicated on the merits, unless the petitioner
can “overcome the limitation of § 2254(d)(1) on the record that was before that state court.”
Id. at 131 S.Ct. 1388, 1400 (2011). “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. However, it seems that a
federal court may also be able to consider new evidence when deciding whether there is
cause and prejudice or actual innocence to excuse a defaulted claim. House v. Bell, 547
11

U.S. 518, 537-38 (2006). In addition to these observations, Judge Atkins further noted, “in
a situation that may be applicable to the present case, if after review solely on the state
court evidence, it appears the state court contravened or unreasonably applied clearly
established federal law, the federal court may then consider additional evidence to
determine whether habeas relief should be granted.” (Doc. # 61 at 12). This is the
conclusion that Pinholster dictates. Hodge asks this Court to disregard this conclusion and
find that § 2254(e)(2) functions as a loophole to Pinholster because it penalizes diligent
petitioners. The Court is unable to do as Hodge requests, for the simple reason that it
cannot ignore Supreme Court precedent.
The purpose of § 2254(e)(2) is not to penalize anyone, but rather to “carry out
AEDPA’s goal of promoting comity, finality, and federalism by giving state courts the first
opportunity to review [a] claim, and to correct any constitutional violation in the first
instance.” 131 S.Ct. at 1401 (internal quotations omitted). This provision further ensures
that “federal courts sitting in habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state proceedings.” Id.
Lastly, Hodge complains that Judge Atkins did not make any findings on his request
pursuant to § 2254(e)(1). Specifically, he did not state whether Hodge was entitled to
challenge the Kentucky Supreme Court’s fact-finding regarding the Commonwealth
Attorney’s conflict of interest pursuant to § 2254(e)(1). Hodge never explicitly invoked §
2254(e)(1) as the basis for his request, perhaps leading Judge Atkins to believe that Hodge
sought to challenge this fact-finding via § 2254(e)(2). However, for the sake of clarity, the
Court will assume that Judge Atkins nevertheless understood the nature of Hodge’s request
and briefly respond to Hodge’s final objection.
12

Section § 2254(e)(1) provides that “a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” Although only
a small portion of the AEDPA jurisprudence deals with § 2254(e)(1), Miller-El v. Cockrell
gives some guidance on the relationship between § 2254(d)(1) and § 2254(e)(1):
A federal court’s collateral review of a state-court decision must be consistent
with the respect due state courts in our federal system. Where 28 U.S.C. §
2254 applies, our habeas jurisprudence embodies this deference. Factual
determinations by state courts are presumed correct absent clear and
convincing evidence to the contrary, §2254(e)(1), and a decision adjudicated
on the merits in a state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.

537 U.S. 322, 340 (2003).
Hodge seeks to challenge the following determination by the Kentucky Supreme
Court:
The allegations that the appellants were denied due process of law because
of an alleged conflict of interest by the prosecutor are totally without merit.
The final judgment of conviction was rendered on June 20, 1986, and on
August 8 of the same year, the surviving victim filed a civil lawsuit against
Epperson and Hodge for damages. The counsel in the matter was, in
addition to being a private attorney, an assistant Commonwealth attorney in
the criminal prosecution. The trial judge overruled the motion for a new trial
on August 19, 1986.
The representation of the surviving victim in a civil matter was completely
after trial. There is no evidence to the contrary. The appearance of alleged
impropriety without any impact on the trial does not create sufficient prejudice
for a reversal. The prosecutor’s conduct may be inappropriate, but it does
not amount to reversible error unless the behavior undermines the
fundamental fairness of the trial. United States v. Young, 470 U.S. 1, 105 S.
Ct. 1038, 84 L.Ed.2d 1 (1985). Jordan v. Commonwealth, Ky., 371 S.W.2d
632 (1963).
13

Epperson v. Commonwealth, 809 S.W.2d 835, 842 (1990).
As grounds for challenging the Kentucky Supreme Court’s fact-finding, Hodge simply
states that it is difficult to believe that “an attorney was contacted, prepared and filed a civil
suit all in the same day without any warning whatsoever.” (Doc. # 62 at 10). Even so, this
point is insufficient to rebut by clear and convincing evidence the Kentucky Supreme
Court’s finding as to when representation of the surviving victim began. And while Hodge
is certainly entitled to challenge that finding pursuant to § 2254(e)(1), the law does not give
him a right to conduct discovery and hold an evidentiary hearing in an effort to rebut the
presumption of correctness.
IV.

Conclusion
For the reasons stated above, Petitioner Benny Lee Hodge’s Objections to

Discovery and Evidentiary Hearing Order (Doc. # 62) be, and are, hereby overruled.
This 14th day of January, 2015.

G:\DATA\ORDERS\PikeCivil\2013\13-5 Order re Objections.wpd

14