Stopher v. Simpson
ORDER by Magistrate Judge Colin H. Lindsay. Motion for evidentiary hearing (DN 115 ) is granted in part and denied in part as set forth. cc: Counsel(JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
VINCENT C. STOPHER
CIVIL ACTION NO. 3:08-CV-9-DJH-CHL
THOMAS L. SIMPSON
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner’s motion for an evidentiary hearing on various claims
raised in his petition. He asks for an evidentiary hearing regarding claims 2, 8-13, a part of claim
14, 15-20, and 22 (DN 115). In addition, Petitioner asks for a deposition of second-chair trial
counsel and references possible evidence in the files undergoing in camera review. Respondent
has filed his response (DN 121), and Petitioner has replied (DN 122). The matter being ripe, the
Court will grant in part and deny in part Petitioner’s motion for the following reasons.
Standard for granting evidentiary hearing
In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court explained the limits
imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on the
authority of federal courts to grant writs of habeas corpus to state prisoners. Pinholster, 563 U.S.
at 181. One of those limits is that when a claim is “‘adjudicated on the merits in State court
proceedings,’” id. (quoting 28 U.S.C. § 2254(d)), habeas relief may be granted only if the state
court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
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). The Supreme Court found that review under § 2254(d)(1) “is limited to the
record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563
U.S. at 181.
However, “[i]f, after reviewing the . . . state court record, th[e] Court determines that any
of the claims adjudicated by the state court were based on an unreasonable determination of the
facts, § 2254(d) deference would not apply and new evidence can be considered.” Caudill v.
Conover, 871 F. Supp. 2d 639, 647 (E.D. Ky. 2012). In other words, if a claim was not decided
on the merits, then Pinholster’s limit on expanding the record is not a problem. However, the
Court still must consider several factors before granting an evidentiary hearing.
First, the Court must consider whether Petitioner failed to develop the facts in state court.
28 U.S.C. § 2254(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 [certain exceptions]”). Section 2254(e)(2)’s phrase “failed to develop” implies
some “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s
counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has defined a
petitioner’s diligence as “a reasonable attempt, in light of the information available at the time, to
investigate and pursue claims in state court; it does not depend . . . upon whether those efforts
could have been successful.” Id. at 435. “Diligence will require in the usual case that the
prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by
state law.” Id. at 437.
Second, even if Petitioner was diligent in attempting to develop the facts in state court,
the decision of whether to hold an evidentiary hearing is within the discretion of this Court.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Supreme Court has instructed the
reviewing court to “consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Id. at 474. “[I]f the record refutes the applicant’s factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Additionally,
“bald assertions and conclusory allegations [by the petitioner as to why he wants a hearing] do
not provide sufficient grounds to warrant requiring . . . an evidentiary hearing.” Washington v.
Renico, 455 F.3d 722, 733 (6th Cir. 2006) (internal quotation marks and citation omitted). In
other words, even in death penalty cases, non-specific assertions or conclusory allegations will
not carry the petitioner’s burden to establish the necessity for an evidentiary hearing. Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003).
With these standards in mind, the Court now turns to the merits of Petitioner’s motion.
Merits of Petitioner’s Motion for an Evidentiary Hearing
Claims 8, 13, and 22
This Court already provisionally decided that three of the claims which are included in
Petitioner’s motion for an evidentiary hearing have not been decided on the merits by the state
court and were not procedurally defaulted – claims 8, 13, and 22. See DN 75. The Court sees no
reason to alter its prior determination that these claims were not procedurally defaulted.
Because these three claims were not decided on the merits, Pinholster presents no bar to
an evidentiary hearing in this Court. Moreover, Petitioner did not fail to develop the facts in
state court. Petitioner filed a motion for evidentiary hearing in state-court post-conviction
proceedings. State Court Record A1_2878-2910 (DN 80, #4). This request was denied. State
Court Record A1_3137 (DN 80, #4). Petitioner appealed this denial to the Kentucky Supreme
Court. State Court Record A1_911-12 (Pet’r’s Post-Conviction Br., pp. 15-16, 50, DN 80, #10).
The Kentucky Supreme Court affirmed. Stopher v. Commonwealth, No. 2005-SC-0371-MR,
2006 WL 3386641, at *7 (Ky. Nov. 22, 2006).
However, as explained above, before the Court may grant Petitioner’s motion for
evidentiary hearing, Petitioner still must demonstrate the necessity for such a hearing. Bowling,
344 F.3d at 512.
In claim 8, Petitioner argues that witness-for-the-prosecution Ernest Bishop lied at trial
about not having received anything other than a transfer to Indiana for testifying against
Petitioner and that, because the prosecutor for Petitioner’s case and Bishop’s case was the same,
the prosecutor necessarily knew that Bishop had committed perjury. DN 40, pp. 87-88. His
motion points out that in the trial court, Christopher Polk, Bishop’s attorney, “testified in avowal
that [Bishop’s] six year plea bargain was contingent upon the detectives and the prosecutor being
satisfied with Bishop’s testimony.” DN 115, p. 6. (citing Transcript of Evidence (TE) 2373,
Sealed Avowal Tape, 2/9/98, 15:41:43).
An evidentiary hearing is not required on issues that can be resolved by reference to the
state court record. Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (en banc). In making the
determination of whether an evidentiary hearing is necessary, “courts focus on whether a new
evidentiary hearing would be meaningful, in that a new hearing would have the potential to
advance the petitioner’s claim.” Zimmerman v. Davis, 683 F. Supp. 2d 523, 532 (E.D. Mich.
2010) (internal quotation marks and citations omitted).
Petitioner’s evidentiary-hearing motion does not explain what additional evidence he
wants to present or what it would prove. He already placed into evidence in the state court
Bishop’s attorney’s testimony that the six-year plea bargain Bishop received was contingent
upon testimony against Petitioner. Because Petitioner has not shown how an evidentiary hearing
in this Court would advance this claim, the motion as to this claim will be denied.
This claim is one of prosecutorial misconduct related to Commonwealth’s witness Kevin
Powell. Powell was called by the prosecution as a rebuttal witness. He testified that he ingested
the same acid that Petitioner had and that it did not result in a “bad trip.” On post-conviction,
Powell signed an affidavit that at trial he was not asked the right question to elicit the truthful
response that both he and Petitioner were extremely “high” from the acid. Powell testified at
trial that he got nothing for his testimony. TE 1947. However, on post-conviction, Powell’s excellmate stated that Powell had told him that Powell avoided prosecution and even got paid to
testify against Petitioner. DN 115, p. 18 (citing Appendix (Apx.) I 2915, Post-Conviction (PC)
Exh. 12). On post-conviction, Petitioner argued that Powell, who was on parole, avoided a
felony gun charge three months after Petitioner shot Deputy Hans. On post-conviction, defense
counsel attempted to speak to Powell’s parole officer about the circumstances of the parole
revocation. Although it is not entirely clear from the motion, Petitioner presumably wants to call
Powell’s parole officer who refused to speak to Petitioner’s post-conviction counsel about the
circumstances of Powell’s parole revocation without an attorney present.
Petitioner also states that the following would be helpful to his case if such exists in the
in camera documents: any notes of interviews with or about Powell or any indication that the
prosecution knew about Powell prior to trial (because Powell was supposedly a late-known
witness). Petitioner also points to, as an example, possible notes of interviews with Powell’s
cousin Selesia Hamilton in the in camera documents which might pertain to this claim. Finally,
Petitioner points out that, if the prosecution had records in its files pertaining to Powell’s non-
arrest or his parole revocation, such records should have been turned over to defense counsel.
The Court’s review of the in camera documents does not reveal any documents fitting these
Upon consideration, the Court will grant Petitioner’s request for a hearing pertaining to
claim 13 to call Powell’s parole officer as a witness.
In claim 22, Petitioner alleges ineffective assistance of trial counsel because counsel did
not conduct a thorough background check of Petitioner’s life. This claim was not procedurally
defaulted and was not decided on the merits.
In his motion for evidentiary hearing, DN 115, p. 54, Petitioner seems to suggest that
deposing second-chair counsel could settle issues of deficient performance. Respondent simply
asserts that because the claim was adjudicated on the merits, Petitioner is not entitled to an
evidentiary hearing. DN 121, p.17.
As already discussed, this Court has determined that this claim was not decided on the
merits. Therefore, Petitioner’s request to depose second-chair counsel on this issue will be
Claims 9, 11, 12, 16, 18, and 19
These claims were decided on the merits by the state court. But even assuming that
Petitioner could show that the state court decision as to these claims was either an unreasonable
application of clearly established federal law determined by the Supreme Court or an
unreasonable determination of the facts, his requests for an evidentiary hearing on these claims
are simply conclusory and do not provide sufficient grounds to warrant an evidentiary hearing.
For these claims, Petitioner does not explain what additional evidence would be adduced. For
example, with regard to claim 9, Petitioner simply states, “Review of this claim is not limited to
the state court record.” DN 115, p. 9. With regard to claim 11, Petitioner simply asserts that “an
evidentiary hearing is necessary.” Id. at 16. For claim 16, he asserts that he is entitled to a
hearing at which he can prove his assertions, id. at 37, but he does not explain what additional
proof would be available at such a hearing. For claim 18, Petitioner argues that this Court should
grant an evidentiary hearing but again does not say what witness(es) he would call at such a
hearing. Id. at 40. Consequently, his motion as to these claims will be denied. See Washington
v. Renico, 455 F.3d at 733; Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (holding in a
§ 2254 case, the Sixth Circuit “will not find that a district court erred by denying a fishing
expedition masquerading as discovery”).
Claim 20 is Petitioner’s claim that trial counsel rendered ineffective assistance when they
did not discover the Commonwealth’s rebuttal witness’s (Kevin Powell’s) readily available
criminal record showing that Powell escaped a gun charge even though he was a persistent felon
in the first degree. DN 40, p. 154. In the motion for evidentiary hearing, Petitioner does not
explain what evidence he wishes to adduce at a hearing regarding claim 20. However, in a
footnote in his motion regarding claim 13, Petitioner refers to a request in his petition for an
evidentiary hearing regarding counsel’s performance in investigating and confronting Powell.
DN 115, p. 17 n.3 (citing DN 40, pp. 154-55).
In deciding this claim, the Kentucky Supreme Court held as follows:
Stopher argues that his trial counsel did not adequately investigate or present his
defense in that he did not obtain the criminal record of Powell. He claims that it
was error on the part of his counsel not to obtain Powell’s 1997 misdemeanor
charges or determine the reason why Powell had his parole revoked. Stopher
believes that this information would have persuaded the jury to reach a different
verdict. Powell testified in an orange prison jumpsuit. The trial judge correctly
concluded that the jury could effectively weigh his credibility. We find no reason
to disturb such a conclusion. The failure of counsel to present marginally useful
evidence did not change the outcome of this trial. Stopher received a fair trial and
this error, even if it was error, is totally insufficient to require any reversal.
Stopher v. Commonwealth, 2006 WL 3386641, at *3.
“To establish ineffective assistance of counsel, the petitioner must show that counsel’s
performance was deficient and that the deficient performance so prejudiced the defense as to
render the trial unfair and the result unreliable.” Chegwidden v. Kapture, 92 F. App’x 309, 311
(6th Cir. 2004) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Both prongs of the
test must be met, but if any one prong fails to establish ineffective assistance, [the Court] need
not conduct an analysis under both.” Fears v. Bagley, 462 F. App’x 565, 573 (6th Cir. 2012).
“[W]hen a state court decision relies only on one prong, the cases mandate AEDPA deference to
that prong and de novo consideration of the unadjudicated prong.” Rayner v. Mills, 685 F.3d
631, 639 (6th Cir. 2012).
Here, it appears that the Kentucky Supreme Court decided the second prong of the
Strickland analysis, i.e., prejudice, on the merits, but did not decide the first prong, i.e., whether
counsel’s performance was deficient.
The Court has already determined that second-chair trial counsel may be deposed
regarding claim 22 (see above). The Court will therefore authorize second-chair trial counsel to
be deposed about trial counsel’s performance with regard to investigating Powell. However,
whether the Court will consider that testimony will be contingent on a finding that the state
court’s determination on the merits of this claim was unreasonable.
In this claim, Petitioner states that, after his trial, Juror 479 came forward to assert that
she had learned mid-trial that she had come in contact with the victim prior to his death; that this
previous encounter impacted her verdict; and that, but for that encounter, she would have voted
against Petitioner having committing intentional murder. Petitioner submitted Juror 479’s
affidavit to this effect. This claim was considered on the merits by the Kentucky Supreme Court.
In his motion for evidentiary hearing, Petitioner asks for a hearing to call the witness, Juror 479,
from whom he already has an affidavit.1 However, even if, for purposes of considering the
request for evidentiary hearing, the Court assumes that the Kentucky Supreme Court’s ruling is
contrary to or an unreasonable application of clearly established federal law, no hearing is
Juror 479’s affidavit avers that she had a prior encounter with the victim and that:
“Without the prior encounter with the Deputy, I would not have voted to convict Mr. Stopher of
intentional murder. I would have believed that he was under the influence of drugs.” Thus,
through her affidavit, the juror has already testified that she was influenced by this extra-judicial
contact and that it prompted her to convict Petitioner, whereas absent remembering that contact,
she would not have voted that way. Had her affidavit only averred that she remembered her
prior contact with the victim in mid-trial and made no statement as to the effect that memory had
on her vote, a hearing would be appropriate. Here, however, the state court record already
contains her explanation of the effect on her vote. Therefore, no evidentiary hearing is
In this claim, Petitioner argues that his constitutional rights were violated by the
Commonwealth’s use of Bishop’s testimony after he was placed in a cell next to Petitioner as a
In his motion, Petitioner asserts: “If her testimony remains consistent with her affidavit, Petitioner will
demonstrate that the juror’s consideration of this extrajudicial information made the difference in this juror voting to
convict Mr. Stopher of intentional murder and resulting in a death verdict.” DN 55, p. 55.
government agent. This claim was decided on the merits by the state court. At trial, the
prosecution called Bishop, the jailhouse informant housed in a Jefferson County Jail cell near
Petitioner’s, to testify that Petitioner confessed to him while he was a pretrial detainee that he
intentionally murdered the victim. Before trial, a hearing was conducted in state court on the
defense’s motion to suppress the alleged statements of Petitioner. Louisville Police Detective
Keifer testified at that hearing that: Bishop was never instructed nor enlisted by the Louisville
Police Department to obtain statements from Petitioner; Bishop was not paid; and the Louisville
Police Department did not seek Bishop out. TE 390, Exh. Tape, 11/9/97, 16:42:30-16:43:16.
On direct appeal, Petitioner argued that his constitutional rights were violated by the
Commonwealth’s use of Bishop’s testimony after he was placed in a cell next to Petitioner as a
government agent. DN 80, #10, pp. 97-101. The Kentucky Supreme Court held as follows:
We also find no error in the trial court’s denial of Appellant’s motion to suppress
Bishop’s testimony on the grounds that Appellant’s Sixth Amendment rights were
violated when Bishop acted as governmental agent in soliciting statements from
Appellant. There is absolutely no evidence that the prosecutor or any other agent
of the Commonwealth induced Bishop to talk to Appellant or listen to his
bragging about the murder of Deputy Hans. The testimony at trial indicated that
Appellant had volunteered all information to Bishop. While Bishop was certainly
familiar with the penal system, and had evidently acted as a jailhouse informant in
the past, he was not acting as a governmental agent and did not induce Appellant
to incriminate himself.
Stopher v. Commonwealth, 57 S.W.3d at 801.
In his petition, Petitioner argues that by the time Bishop was housed next to him,
Petitioner already had notified the trial court that he intended to assert his Fifth Amendment right
to remain silent and his Sixth Amendment right to counsel. DN 40, p. 96. He asserts that there
is “an enormous question” as to why Bishop was housed in the maximum security unit next to
him, and that even if the Commonwealth placed him there merely to be attentive to statements
made by Petitioner, reversal is warranted. Id. at 97. However, Petitioner acknowledges in the
petition that, given the evidence available, the Kentucky Supreme Court’s application of Massiah
v. United States, 377 U.S. 201, 206 (1964), and other cases to deny this claim is not
unreasonable. Id. at 98. He states that he brings this claim because otherwise he may lose the
ability to do so in the future. Id. Petitioner also states that he intends to develop this claim
further during the pendency of this action, but does not explain how. Id.
In response to the petition, Respondent argues that Petitioner has offered only innuendo
and no evidence that Bishop was a government agent. DN 45, p. 77. Respondent asserts that the
Kentucky courts found that Bishop was not a state agent, which is a finding of fact that must be
presumed correct. Id. at 78-79. Petitioner offers no reply, except to say that “he has asked for
discovery which may illuminate this claim.” DN 5, p. 12.
In contrast to the petition, in his motion for an evidentiary hearing, Petitioner states that
the state court denied this claim on the merits but argues that this Court’s review is not limited to
the state court record because the state court decision is an unreasonable application of clearly
established federal law. He argues: “The state [c]ourt decided Stopher’s rights under the Sixth
Amendment were not violated because the government did not induce the jailhouse informant to
talk. However, the court addressed the wrong question. The issue is not whether the informant
was induced to talk, but whether Stopher was.” DN 115, pp. 10-11 (emphasis in original). He
does not mention Massiah in the context of this claim in his motion for an evidentiary hearing.
The Court finds that this new argument in the motion for an evidentiary hearing, which is
contradictory to Petitioner’s original argument, is not well taken.
In Massiah v. United States, 377 U.S. 201, 206 (1964), the Supreme Court held
that the Sixth Amendment prohibits the government from deliberately eliciting
incriminating statements from an accused once the right to counsel has attached.
In United States v. Henry, 447 U.S. 264, 273 (1980), the Supreme Court held that
Massiah applied to the use of jailhouse informants. Thus, to establish a Sixth
Amendment violation under Massiah and Henry, the petitioner must demonstrate
that the government took some action that was designed to deliberately elicit
incriminating remarks. See, e.g., Alexander v. Smith, 311 F. App’x 875, 886-87
(6th Cir. 2009); Massiah, 377 U.S. at 72-73; Henry, 447 U.S. at 273. To be clear,
the petitioner must do more than demonstrate that an informant voluntarily
reported incriminating remarks uttered by the petitioner. See, e.g., Kuhlman[n] v.
Wilson, 477 U.S. 436, 459 (1986); Alexander, 311 F. App’x at 887.
Conway v. Houk, No. 2:07-CV-947, 2011 WL 6849096, at *6 (S.D. Ohio Dec. 29, 2011).
Here, Petitioner’s argument in his motion for evidentiary hearing, unlike his original
argument in his petition, ignores the fact that the Kentucky Supreme Court held that “[t]he
testimony at trial indicated that Appellant had volunteered all information to Bishop.” Stopher v.
Commonwealth, 57 S.W.3d at 801.
The Court agrees with Petitioner’s assertion in his petition that, given the evidence before
the state court, the state court’s decision was not an unreasonable application of Massiah. See
DN 40, p. 98. As the Supreme Court held in Kuhlmann v. Wilson, a defendant does not
demonstrate a violation of the Sixth Amendment “simply by showing that an informant, either
through prior arrangement or voluntarily, reported his incriminating statements to the police.
Rather, the defendant must demonstrate that the police and their informant took some action,
beyond merely listening, that was designed deliberately to elicit incriminating remarks.”
Kuhlmann v. Wilson, 477 U.S. at 459. Because the state court’s decision was not unreasonable,
no hearing is authorized. Moreover, Petitioner’s motion only refers to potential evidence
contained in the in camera prosecutorial files and does not request an evidentiary hearing.
DN 115, p. 11. The motion as to this claim will be denied.
In Claim 14, Petitioner argues that his constitutional rights were violated when the
prosecutor made improper comments. With respect to this claim, Petitioner states that he wishes
to call Trooper Stricklin at an evidentiary hearing and refers to potential evidence in the in
camera files. The claim as it involves Trooper Stricklin has to do with the prosecutor’s
questioning of Petitioner’s brother about whether he knew of a prior assault by Petitioner on a
state trooper. DN 40, p. 125 (citing TE 1596; Tape 8, 2/10/98, 9:44:14). Defense’s motion for a
mistrial was denied.
On direct appeal, the Kentucky Supreme Court concluded that the prosecutor had asked
the question in good faith because he had documentation showing that Petitioner had been
arrested for the offense.
Appellant’s first claim of misconduct concerns the cross-examination of his
brother, John Stopher, about Appellant’s prior arrest for assaulting a police
officer. In fact, such charge had been dismissed. However, the prosecutor had the
documentation indicating that Appellant had been arrested for such offense, and
we conclude that the question was asked in good faith.
Stopher v. Commonwealth, 57 S.W.3d at 805. Thus, the Kentucky Supreme Court did not base
its decision on what the prosecutor knew from Trooper Stricklin about the charge against
Petitioner concerning the assault on Trooper Stricklin. Because the state court’s decision on this
issue was not unreasonable, no hearing is warranted. The motion will be denied as to this claim.
Claims 15 and 17
In claim 15, Petitioner argues the ineffective assistance of trial counsel in failing to use
his complete medical records. He refers to potential evidence in the in camera files and
deposition of second-chair trial counsel. In claim 17, Petitioner argues that trial counsel were
ineffective for not exposing that the police hid Petitioner’s intoxication during the time he was at
the police station before he was taken to the hospital. He states that he wishes to depose secondchair trial counsel and possibly call police officers at an evidentiary hearing. He also refers to
the potentiality of evidence in the in camera files.
These claims were decided on the merits by the state court. However, because the Court
is allowing deposition of second-chair counsel on other issues, the Court will allow second-chair
counsel to be deposed on these issues as well. However, whether the Court will consider that
testimony will be contingent on a finding that the state court’s determination on these claims was
For the foregoing reasons,
IT IS ORDERED that the motion with regard to claims 2, 8-12, 14, 16, and 18-19 is
IT IS FURTHER ORDERED that the motion with regard to claims 13, 15, 17, 20, and
22 is GRANTED in the following manner: for claim 13, to call Powell’s parole officer as a
witness at a hearing; for claim 15, deposition of second-chair trial counsel regarding counsel’s
performance in failing to use Petitioner’s complete medical records; for claim 17, deposition of
second-chair trial counsel regarding counsel’s performance in relation to Petitioner’s time at the
police station before being transported to the emergency room; for claim 20, deposition of
second-chair trial counsel regarding counsel’s performance in investigating Powell’s criminal
record; and for claim 22, deposition of second-chair trial counsel regarding counsel’s
performance in conducting a background check of Petitioner’s life.
March 9, 2017
Counsel of record
Colin Lindsay, MagistrateJudge
United States District Court
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