Stopher v. Simpson

Filing 138

MEMORANDUM OPINION AND ORDER signed by Judge Rebecca Grady Jennings on 6/23/2022 re 123 Order on Motion for Hearing, 126 Objection. Stopher's objections (DE 126 ) to the Magistrate Judge's Memorandum Opinion and Order are DENIED without prejudice. cc: Counsel (SMJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
VINCENT C. STOPHER

Petitioner

v.

Civil Action No. 3:08-cv-9-RGJ-CHL

SCOTT JORDAN, WARDEN

Respondent

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Vincent C. Stopher’s (“Stopher”) objections
[DE 126] to Magistrate Judge Colin Lindsay’s Memorandum Opinion and Order (“MOO”) [DE
123] on Stopher’s motion for an evidentiary hearing. The Respondent, Scott Jordan, the Warden
of the Kentucky State Penitentiary (“Warden”), did not respond. This matter is ripe. For the
reasons below, Stopher’s objections [DE 126] are premature and thus DENIED without prejudice.
I.

BACKGROUND

A jury in Jefferson County, Kentucky convicted Stopher of murdering a Jefferson County
Deputy Sherriff. Stopher v. Com., 57 S.W.3d 787, 793 (Ky. 2001), as amended (Aug. 15, 2001).
Stopher was also convicted of wanton endangerment, four counts of third-degree assault, and
pleaded guilty to being second-degree persistent felony offender. Id. Stopher was sentenced to
death on the murder count.1 Id.
The Kentucky Supreme Court summarized the facts in the case in its opinion affirming
Stopher’s convictions and sentence on direct appeal:
On March 10, 1997, Deputy Hans responded to a call made to the Louisville Police
Department concerning a disturbance at Appellant’s home. When Deputy Hans
arrived at the location, Appellant approached the police cruiser and began striking
Hans. Deputy Hans attempted to defend himself but Appellant pinned him to the
seat of the cruiser with the result that Deputy Hans’ left hand and arm were trapped
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He was also sentenced to five years’ imprisonment on the count of wanton endangerment and two years’
imprisonment on each of the counts of assault. Stopher, 57 S.W.3d at 793.

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beneath his body. Appellant unholstered Deputy Hans’ handgun, pressed the barrel
of the gun into Hans’ face, and pulled the trigger. Immediately thereafter, Appellant
got out of the police cruiser and pointed the gun at a witness, Steve Porter. Porter,
afraid he was about to be shot, dropped to his knees and raised his hands. Appellant
pulled the trigger, however, the gun jammed and would not fire. At this time, other
officers arrived on the scene and apprehended Appellant. Witnesses stated that
Appellant was enraged and shouted that he hoped the officer had died. Four officers
were required to wrestle Appellant to the ground and handcuff him. While the
officers were struggling with Appellant, he grabbed another officer’s weapon and
attempted to fire it.
Following an extensive and highly publicized trial, Appellant was found guilty of
intentional murder and was sentenced to death.
Id. Stopher made thirty-three allegations of error on direct appeal, which the Kentucky Supreme
Court categorized into eight sections: (1) pretrial issues; (2) jury issues; (3) witness issues; (4)
evidentiary issues; (5) (jury) instructions; (6) prosecutorial misconduct; (7) miscellaneous issues;
and (8) proportionality review. Id. at 173-808. The Kentucky Supreme Court addressed each of
Stopher’s arguments in its opinion affirming his conviction and sentence. Id. Two justices
dissented on part of court’s ruling on jury and witness issues. Id. at 808–820. In 2002, the United
States Supreme Court denied Stopher’s petition for certiorari. Stopher v. Kentucky, 535 U.S. 1059
(2002).
Stopher subsequently challenged his convictions in state court, which motions “[t]he circuit
judge denied [] after almost three years of continued attempts to amend the various motions. . .
based on evidence in the record. No evidentiary hearing was conducted.” Stopher, 57 S.W.3d 787.
Stopher appealed this decision to the Kentucky Supreme Court, where it was upheld. Id. at 7. The
Kentucky Supreme Court considered ineffective assistance of counsel, prosecutorial misconduct,
juror bias, denial of requested discovery, and cumulative error. Id. at 1. Stopher again filed writ
of certiorari with the United States Supreme Court, which it again denied. Stopher v. Kentucky,
552 U.S. 850 (2007).

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Stopher, by counsel, filed a Petition with this Court for a Writ of Habeas Corpus
challenging his conviction and sentence under 28 U.S.C. § 2254. [DE 9]. The Warden opposed
the Petition, [DE 45], and Stopher replied. [DE 51].
The Court referred this matter to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(A) &
(B), for appropriate hearings, if necessary; for rulings on all non-dispositive motions; and for
findings of fact and recommendations on any dispositive matters. [DE 106]. In accordance with
this order, Magistrate Judge Lindsay issued an order setting deadlines for a motion for an
evidentiary hearing and/or to depose second chair trial counsel, response, and reply. [DE 107].
Under Judge Lindsay’s order, Stopher moved for an evidentiary hearing and to depose second
chair counsel. [DE 115]. Judge Lindsay issued the MOO granting in part and denying in part
Stopher’s motion. [DE 123]. Stopher, through counsel, objected to the MOO on fifteen separate
grounds. [DE 126].
II.

DISCUSSION

The MOO was issued pursuant to 28 U.S.C. § 636(b)(1)(A) & (B). § 636(b)(1)(A)
authorizes the referral of nondispositive matters.

On these matters, a district judge may

“reconsider any pretrial matter . . . where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” Id. § 636(b)(1)(B) authorizes referral of dispositive matters,
in which the magistrate judge provides a recommended disposition to the district court.
§ 636(b)(1)(C). Dispositive motions, such as motions for summary judgment or the suppression
of evidence, are reviewed under a de novo standard. Id. See also Fed. R. Civ. P. 72(b)(1)-(2).
This referral to the Magistrate Judge constitutes a referral of a dispositive matter under
§ 636(b)(1)(B), which authorizes a district judge to “designate a magistrate judge to conduct
hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings

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of fact and recommendations for the disposition . . . of application for posttrial relief made by
individuals convicted of criminal offenses and of prisoner petitions challenging conditions of
confinement.” 28 U.S.C. § 636(b)(1)(B).
“Interlocutory rulings made by a magistrate judge in a § 2254 proceeding referred pursuant
to § 636(b)(1)(b),” such as Magistrate Judge Lindsay’s interlocutory evidentiary hearing order in
this case, “are not subject to immediate review by the district court.” Barnes v. Taylor, No. CIV.
09-299-GFVT, 2011 WL 1885403, at *2 (E.D. Ky. May 17, 2011). “Neither § 636(b)(1) nor
Federal Rule of Civil Procedure 72(b) prescribes procedures for interlocutory appeals of orders
issued by magistrate judges in habeas corpus proceedings referred for a recommended
disposition.” Id. Rule 72 suggests there is no interlocutory review so that a record is created for
the district court’s review along with the recommended disposition:
A magistrate judge must promptly conduct the required proceedings when assigned
. . . a prisoner petition challenging the conditions of confinement. A record must
be made of all evidentiary proceedings and may, at the magistrate judge’s
discretion, be made of any other proceedings. The magistrate judge must enter a
recommended disposition, including, if appropriate, proposed findings of fact.
Thus, Magistrate Judge Lindsay’s interlocutory ruling on the scope of the evidentiary
hearing is only subject to this Court’s review on an objection filed after Magistrate Judge Lindsay
has made his report and recommendation on the disposition of the case. At that time, Stopher may
file his objections.
Additionally, allowing interlocutory appeals would frustrate the entire purpose of referring
the case, while preventing interlocutory appeals is consistent with the purpose of the magistrate
act. See Magee v. Rowland, 764 F. Supp. 1375, 1376 (C.D. Cal. 1991) ([i]f discovery orders in
such proceedings were subject to interlocutory review by the district court, other interlocutory
rulings. . . all would be subject to interlocutory review by the district court); and McCarthy v.

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Bronson, 500 U.S. 136, 142 (1991) (Congress’s “central purpose” for amending the Magistrate’s
Act in 1976 “was to authorize greater use of magistrates to assist federal judges in handling an
ever-increasing caseload.”).
III.

CONCLUSION

Accordingly, for the reasons stated, and the Court being otherwise sufficiently advised, IT
IS ORDERED that Stopher’s objections [DE 126] to the Magistrate Judge’s Memorandum
Opinion and Order are DENIED without prejudice.

June 23, 2022

cc: Counsel of Record

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