Kott v. Cain et al
Filing
28
ORDER AND REASONS granting in part 26 Motion to File Amended Complaint or, in the Alternative, Motion to Stay and Abate. Signed by Magistrate Judge Michael North. (NEF: Judge Morgan's Chambers) (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALTER A. KOTT, JR.
CIVIL ACTION
VERSUS
NO. 14‐953
BURL CAIN, WARDEN
SECTION “E”(5)
ORDER AND REASONS
This matter is before the undersigned magistrate judge upon referral of pro se
petitioner's, Walter A. Kott, Jr.'s, motion to amend his 28 U.S.C. § 2254 petition or alternatively
to stay the proceedings. Rec. Docs. 26, 27. For the reasons set forth below, the Court has
determined that the motion should be granted to the extent Kott requests to supplement and
provide additional support for his existing claim of ineffective assistance of counsel raised in
his federal habeas petition. This ruling does not alter the undersigned's prior report and
recommendation for dismissal of the petition. Rec. Doc. 22.
Kott seeks to expand the record before this Court to add for consideration by the Court
a sworn report he only recently obtained from Dr. Steven A. Barker, an expert in the field of
toxicology. The report is intended to bolster his claim that counsel was ineffective for failing
to hire any expert witnesses despite having the funds made available for him to do so. Kott
maintains that if Dr. Barker had testified at trial, his testimony would have changed the
outcome of the verdict because it "disputes and calls into question every phase of the
testimony of the experts offered by the state [and] is also supported by undisputed scientific
evidence."1 Alternatively, he requests a stay of the proceedings so that he may return and
present the ineffective assistance claim again with the supportive new evidence to the state
courts. Although the Court liberally construes the motion to amend and will allow Kott's
request for leave to supplement the record in this case, thereby preserving a full record for
appellate review, the Court finds it is nevertheless constrained from considering Dr. Barker's
materials for purposes of its review of the state court's adjudication on the merits pursuant
to 28 U.S.C. § 2254(d)(1).
Under Federal Rule of Civil Procedure 15(a), a party may amend his or her pleadings
once as a matter of course within 21 days after service of a responsive pleading if one is
required. Fed. R. Civ. P. 15(a)(1); see Mayle v. Felix, 545 U.S. 644, 655 (2005); 28 U.S.C. §2242
(habeas applications “may be amended or supplemented as provided in the rules of procedure
applicable to civil actions”); Rule 12, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254
(providing that the Federal Rules of Civil Procedure may be applied to habeas petitions to the
extent those rules are not inconsistent with the habeas rules). Otherwise, the party may
amend only with the opposing party's written consent or by leave of court, which should be
"freely give[n] when justice so requires.” Fed. R. Civ. P. 15(a)(2); Rule 15(a) evinces a liberal
amendment policy and a motion to amend should not be denied absent a substantial reason
to do so. See Jacobsen v Osborne, 133 F.3d 315, 318 (5th Cir. 1998). In this case, the essential
grounds for the claim were asserted previously (Rec. Doc. 16), the State has had the
opportunity to address the merits of the ineffective assistance claim for failure to hire an
expert witness (Rec. Docs. 14, 15), and the sworn report has little or no consequence under
1
Rec. Doc. 26, p. 1.
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the circumstances to a review of the merits. Therefore, the Court will allow Kott leave to
supplement the record to include Dr. Barker's materials.
Ultimately, however, federal law is clear that the Court on habeas review in this case
may not consider Dr. Barker's sworn expert report as it relates to the adjudication of Kott's
claim that his counsel was ineffective in failing to retain an expert witness for the defense to
counter the State's expert witnesses' testimony at trial. Kott's claim of ineffective assistance
of counsel for failure to retain expert witnesses was presented to the state district court, the
intermediate appellate court and the Louisiana Supreme Court during post‐conviction
proceedings – without supporting evidence such as affidavits or reports of any proposed
witnesses – and relief was denied. For the first time now, almost six months after this Court
issued a report and recommendation on his original federal habeas petition, Kott requests
consideration of supporting evidence in the form of Dr. Barker's countervailing expert review
and report. However, because the state courts rejected this claim on the merits without the
benefit of Dr. Barker's materials, which were not part of the record in this case, it is beyond the
scope of review for this Court to evaluate Kott's claim de novo under the Strickland standard
based on the newly acquired expert report.
The Court's "review [of Petitioner's claim] under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster,
563 U.S. 170, 181 (2011). In Pinholster, the Supreme Court held that where a habeas claim has
been decided on the merits in state court, as here, a federal court's review under 28 U.S.C.
§2254(d)(1)—whether the state court determination was contrary to or involved an
unreasonable application of established federal law—must be confined to the record that was
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before the state court. Id. at 181. The Supreme Court in Pinholster observed that AEDPA's
"backward‐looking language requires an examination of the state‐court decision at the time
it was made. It follows that the record under review is limited to the record in existence at that
same time i.e., the record before the state court." Id. at 182. Further, the Court explained that
"[i]t would be contrary to [AEDPA's] purpose to allow a petitioner to overcome an adverse
state‐court decision with new evidence introduced in a federal habeas court and reviewed by
that court in the first instance effectively de novo." Id. Thus, because Dr. Barker's report was
not before the state courts at the time those courts adjudicated Kott's ineffective assistance
claim on the merits, this Court is prohibited from considering it on federal habeas review
under Section 2254(d).2
Furthermore, Kott concedes the claim itself was presented to the state courts for
review, albeit without the supporting affidavit, and therefore was exhausted. Kott's new
evidence is not sufficient to constitute a new claim. In this instance, a stay and abeyance of
these proceedings is not warranted. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d
440 (2005).
Accordingly, IT IS ORDERED that Walter A. Kott, Jr.'s motion to file amended complaint
2
The Court notes that even if review of the claim in light of the new evidence was not prohibited
under Pinholster, the new evidence would not entitle Kott to relief. The affidavit shows that the legal
underpinnings for Dr. Barker's position on causation mistakenly stem from federal criminal law rather than
state law. See Rec. Doc. 26‐1, pp. 5‐6 of 104. Dr. Barker's opinion contradicting the State's experts, i.e., that
the drug administered by Kott was not the "sole" cause of death, would not have changed the outcome in light
of applicable Louisiana jurisprudence. See State v. Hano, 938 F.2d 181, 192 (La. App. 1st Cir. 2006), writ
denied, 948 So.2d 164 (2007); Hano v. Warden, Louisiana Correctional Inst. for Women, 09‐7741, 2011 WL
3320660, at *12 (E.D. La. July 06, 2011), report and recommendation adopted, 2011 WL 3320595 (E.D. La. Aug.
01, 2011). Thus, Kott cannot establish a reasonable probability of a different or more favorable outcome even
if Dr. Barker's countervailing expert testimony had been offered by the defense at trial. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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or in the alternative, motion to stay and abate is GRANTED IN PART solely to allow Kott to
supplement the record with the report of Dr. Barker. (Rec. Doc. 26). The supplemental
evidence does not alter the undersigned's prior report and recommendation (Rec. Doc. 22).
April
29th
New Orleans, Louisiana, this day of , 2016.
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
CLERK:
cc. District Judge Susie Morgan, Div. E.
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