HURST v. BRANKER
Filing
49
MEMORANDUM OPINION AND ORDER that Petitioner's Motion for Leave to Conduct Discovery (Docket Entry 25 ) is DENIED signed by MAG/JUDGE L. PATRICK AULD on 6/1/11. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JASON WAYNE HURST,
Petitioner,
v.
GERALD BRANKER, Warden, Central
Prison, Raleigh, North Carolina,
Respondent.
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1:10CV725
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Petitioner’s Motion for
Leave to Conduct Discovery (Docket Entry 25).
cannot
show
“good
cause”
for
the
Because Petitioner
discovery
he
requests,
particularly in light of Cullen v. Pinholster, ___ U.S. ___, 131
S. Ct. 1388 (2011), the Court will deny his instant Motion.
BACKGROUND
In 2004, Petitioner received a death sentence in the North
Carolina Superior Court in Randolph County following his conviction
for
first-degree
murder;
the
North
Carolina
Supreme
Court
unanimously affirmed both Petitioner’s conviction and sentence.
State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006).1
Through
counsel, Petitioner thereafter filed a Motion for Appropriate
1
According to that affirmance, “[t]he evidence indicated that [Petitioner]
began planning to kill the victim as soon as their telephone conversation [in
which they agreed to meet to discuss the sale of firearms] ended the day before
the murder; that[, when they met as planned, Petitioner] urged the victim to walk
into the field for the ostensible purpose of setting up targets [at which they
could test-fire the firearms they met to discuss], then shot [the victim] without
provocation; that the victim asked [Petitioner] not to shoot him again; that
[Petitioner] fired three spaced shots into the victim; that the third shot was
fired into the victim’s head as the victim lay helpless, watching [Petitioner];
that [Petitioner] took the victim’s keys from his body after shooting him and
drove [the victim’s] Thunderbird to West Virginia; that [Petitioner] traded or
sold the victim’s two guns; and that [Petitioner] acknowledged that he felt no
remorse.” Hurst, 360 N.C. at 208, 624 S.E.2d at 328.
Relief (“MAR”) in the state trial court on June 25, 2007.
(Docket
Entries 2-1, 3-1.)2
Claim I of Petitioner’s MAR
In his MAR, Petitioner asserted the following “Claim I”:
DEFENDANT WAS DENIED THE RIGHT TO COUNSEL AND TO CONFRONT
HIS ACCUSERS AT HIS CAPITAL SENTENCING HEARING WHEN A
JUROR WAS IMPROPERLY INFLUENCED BY AN EXTERNAL SOURCE
PRIOR TO PENALTY PHASE DELIBERATIONS IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF
THE UNITED STATES[.]
(Docket Entry 2-1 at 3, 5.)
As support for said claim, Petitioner
attached and quoted an affidavit from a juror in his case (dated as
signed on April 21, 2007).
(Id. at 6-7; Docket Entry 4-1).)
In
particular, he highlighted the following averment by the juror:
During the trial, I often had lunch with my father who
worked near the courthouse. Prior to deliberations, I
asked my father where I could look in the Bible for help
and guidance in making my decision for [sic] between life
and death. After the jury had found [Petitioner] guilty
but before we decided his sentence, I opened my Bible at
home because I wanted to read something to help me with
my decision. My father had given me the section in the
Bible where I could find “an eye for an eye.” That night
after reading that section in the Bible, it helped me
sleep better. It didn’t make the decision any easier.
The next day during deliberations, I voted for the death
penalty.
(Docket Entry 2-1 at 6 (quoting Docket Entry 4-1 at 5) (emphasis
added).)
Petitioner’s
Claim
I
asserted
that
“[t]he
communication
between [the juror] and her father, in which he directed her to the
‘eye for an eye’ passage in the Bible to help her with her decision
between life and death, constituted an improper external influence
2
When a document appears in electronic form on the Docket, the Court will
cite the docket and page numbers in the CM/ECF footer for such document.
-2-
upon her deliberations in violation of the Sixth Amendment.
By
suggesting that she seek guidance in the ‘eye for an eye’ passage,
her father implied what her decision should be - death.”
7-8.)
(Id. at
According to the Petitioner, this implied message from the
juror’s father to the juror “tended to influence [the juror’s]
partiality . . . [and] deprived [Petitioner] of his right to
confront and cross-examine his accusers in violation of the Sixth
Amendment.”
(Id. at 8.)
Moreover, Petitioner contended that
“[p]rejudice should be presumed from this improper contact . . .
[and therefore the state trial court] should order a new capital
sentencing hearing, or, alternatively, order an evidentiary hearing
to resolve any factual disputes.”
(Id. at 8-9.)3
The State answered Petitioner’s MAR and moved for denial of
various claims, including Claim I; in so doing, the State argued
that “the Bible is not an extraneous influence:
therefore [the
juror’s] request of her father and his giving her a Biblical
reference concomitantly cannot qualify as ‘extraneous prejudicial
information’ as [Petitioner] would have it.”
(State’s Ex. L.)4
In
support of that position, the State cited, inter alia, the decision
in Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006), that denied
3
Petitioner did not identify any potential “factual disputes.”
Docket Entry 2-1 at 5-9.)
4
(See
State’s Exhibit L does not appear in electronic form on the docket. (See
Docket Entry 19 at 2 (¶ 12).) The copy in the Court’s paper file contains two
documents filed in the state trial court:
1) the State’s Motion to Strike
Hearsay Affidavit; and 2) the State’s Answer to Defendant’s Motion for
Appropriate Relief and the State’s Motion to Deny Claims I and III through VII
on the Pleadings, and to Dismiss Claim VIII. Each of those two documents has its
own pagination. The above-quoted language appears at pages 14-15 of the State’s
Answer to Defendant’s Motion for Appropriate Relief and the State’s Motion to
Deny Claims I and III through VII on the Pleadings, and to Dismiss Claim VIII.
-3-
habeas relief where a juror requested and received a Bible from a
bailiff during deliberations and read therefrom an “‘eye for an
eye’” passage to other jurors in an effort to induce them to
“‘change their position from one favoring a life sentence to one
favoring a death sentence’” because the state court reasonably
could have concluded that “‘no Biblical passage . . . had any
evidentiary relevance to the jury’s determination of the existence
of aggravating and mitigating circumstances.’”
(Id. at 15-16.)
Petitioner thereafter filed a reply in which he further
addressed Claim I of his MAR.
(See State’s Ex. O at 1-4.)5
He
began by asserting that “[t]he State’s Motion to Deny Claim One on
the pleadings is based upon a faulty premise, that the Bible can
never be a component of an improper external influence upon a
juror.” (Id. at 1 (emphasis omitted).) Further, Petitioner argued
that “when [the juror] asked her father for advice as to where to
look in the Bible for guidance as to what her decision [between
life and death] should be, she invited his opinion as to what her
decision [between life and death] should be” and that “when [the
juror’s father] responded by directing [the juror] to a particular
section in the Bible that included an ‘eye for an eye passage’ [the
juror’s father] expressed his opinion on that matter.” (Id. at 2.)
According to Petitioner, “[i]t is
that
opinion which is the
improper external influence complained of [by Petitioner], not the
Bible itself.”
(Id. (italics in original).)
5
Said document appears only in the Court’s paper file.
19 at 2 (¶ 15).)
-4-
(See Docket Entry
Next, Petitioner suggested that the state trial court could
take judicial notice that three passages from the Bible’s Old
Testament (i.e., Exodus 21:24, Leviticus 24:20, and Deuteronomy
19:21) and one passage from the Bible’s New Testament (i.e.,
Matthew 5:38-39) contain the phrase “eye for an eye.”
3.)
(Id. at 2-
He opined that an “obvious difference [exists] between the
sections in the Old and New Testaments”6 and thus that the question
of which “particular” passage the juror’s father identified to the
juror represented “a significant factual issue in this case that
warrants factual development at a hearing.”
(Id. at 3.)
Finally,
based on language in United States v. Cheek, 94 F.3d 136, 141 (4th
Cir. 1996) (see id. at 4), Petitioner contended that:
1) the state trial court “should grant a hearing on [Claim I]
in order to allow additional development of the facts that support
it, including the particular passage [the juror’s] father [cited]”
(id.);
2) the state trial court “must then determine whether or not
the external influence was made upon [the juror] and if so, whether
or not it was innocuous” (id.); and
3) if the external influence occurred and does not qualify as
innocuous, the state trial court must require the State “to bear
the heavy burden of disproving the presumption that the external
influence resulted in prejudice to [Petitioner]” (id.).
6
In Petitioner’s view, these “Old Testament Passages all state clearly
that the punishment to be imposed in a case in which one man causes the death of
another is death.” (State’s Ex. O at 3.) The New Testament quotation cited by
Petitioner acknowledges the “‘eye for an eye’” phrase, but adds “‘whosoever shall
smite thee on thy right cheek, turn to him the other also.’” (Id.)
-5-
Petitioner’s Motion for Discovery by Depositions
during the Pendency of his MAR in the State Trial Court
On October 19, 2007 (two days after the completion of the
foregoing briefing by the parties), the North Carolina Superior
Court in Randolph County held a hearing on various issues related
to Petitioner’s MAR, including the State’s Motion to Deny Claims I
and III through VII on the Pleadings, and to Dismiss Claim VIII.
(See State’s Ex. C1 at 12, 20.)7
a.m.
(Id. at 3.)
The hearing commenced at 9:46
Approximately 26 minutes before the hearing
began, Petitioner filed a Motion for Discovery by Depositions.
(See Docket Entry 5-2 at 1.)
To that Motion, Petitioner appended
an affidavit from Adam Pfeifer (dated as signed on October 18,
2007), who averred that he “was hired to conduct interviews of the
jurors that sat in [Petitioner’s case].”
(Id. at 7.)
In his affidavit, Pfeifer declared that, “on April 21, 2007,
[he] interviewed [the juror in question] at her home . . . [and
said juror] agreed to provide [Pfeifer] with an affidavit which
tracked
[their]
discussion.”
(Id.)
According
to
Pfeifer,
“[Petitioner’s] attorneys asked [Pfeifer] to try to interview [said
juror] again to get more details about her conversation with her
father.”
(Id.)
As a result, “[o]n June 16, 2007, [Pfeifer]
returned to [the juror’s home] . . . .”
(Id.)
“When [Pfeifer]
arrived, [the juror] said she was trying to get her kids dressed.
She told [Pfeifer] she was too busy to talk at that time and to
return in a couple of hours.”
(Id.)
“[Pfeifer] returned in a
7
State’s Exhibit C1 consists of a copy of the transcript of said hearing
and appears in the Court’s paper file. (See Docket Entry 19 at 1 (¶ 3).)
-6-
couple of hours as [the juror had] directed.
Although it appeared
[the juror] was still at the home, [Pfeifer] did not receive a
response and [the juror] did not come to the door.”
(Id.)8
Pfeifer’s affidavit further related that, “on October 9, 2007,
[Pfeifer] interviewed [the juror’s] father . . . [who] confirmed
that he had a conversation with his daughter about an ‘eye for an
eye’ section of the Bible during his daughter’s deliberations in
[Petitioner’s] trial.”
(Id. at 8.)
According to Pfeifer, the
juror’s father reported “that he had called his mother [i.e., the
juror’s grandmother], who live[d] in [another state], and got a
biblical reference from her before providing it to his daughter.”
(Id.)
Pfeifer’s affidavit did not assert that the juror’s father
failed to answer any inquiry from Pfeifer or that the juror’s
father ever refused contact with Pfeifer. (See Docket Entry 5-2 at
7-8.)
Pfeifer asserted that he “called [the juror’s grandmother]
several times in order to speak to her about the conversation she
had with her son but was unsuccessful in reaching her.”
(Id.)9
Based on the affidavit from the juror attached to the MAR and
on Pfeifer’s affidavit, Petitioner argued that the state trial
court “should order the deposition of [the juror, her father, and
her grandmother], as ordering the same will significantly assist in
8
Pfeifer concluded from these circumstances that the juror did not
“intend[] to speak to [him] any further about her jury service, or the
conversation she had with her father about the ‘eye for an eye’ section of the
Bible.” (Docket Entry 5-2 at 8.) Pfeifer’s affidavit did not describe what
additional “details” Petitioner sought from the juror. (See id. at 7-8.)
9
Due to her failure to return his telephone calls, Pfeifer “d[id] not
believe that [the juror’s grandmother] intend[ed] to speak to [him] . . . .”
(Docket Entry 5-2 at 8.) Pfeifer’s affidavit did not describe what information
Petitioner sought from the juror’s grandmother. (See id. at 7-8.)
-7-
the
search
for
truth
about
[the
conversations with her father . . . .”
language
from
two
North
Carolina
juror’s]
extrajudicial
(Id. at 3.)
After citing
Supreme
Court
decisions
recognizing that North Carolina courts have authority to permit
discovery in connection with post-trial proceedings, Petitioner
repeated his claim that “ordering the depositions of [the juror,
her father, and her grandmother] will significantly assist in the
search for truth” and added that “depositions will be a more
efficient means of determining the truth than at a hearing on the
merits of this claim.”
(Id. at 3-4.)
Petitioner described the scope of the depositions he requested
only as follows:
“whether any improper or undue influence was
brought to bear on [the juror] in relation to [Petitioner’s]
capital trial[.]”
Depositions
offered
(Id. at 5.)
no
forecast
The Motion for Discovery by
of
the
specific
questions
Petitioner wished to ask the proposed deponents. (See id. at 2-5.)
Nor did said Motion explain why the Court lacked a sufficient basis
to rule on Claim I without deposition testimony from the juror, her
father, or her grandmother.
(See id.)
Discussion of Claim I of Petitioner’s MAR and Petitioner’s Motion
for Discovery by Depositions during State Trial Court Hearing
During the hearing in the North Carolina Superior Court in
Randolph County on October 19, 2007, the State argued that,
“[s]ince the Bible itself has nothing to do with aggravators and
mitigators [that a jury must apply in considering a death sentence]
. . ., then when [the juror] asked for [sic] ‘tell me a passage in
the Bible’ and was given one of the eye-for-an-eye passages, there
-8-
cannot have been any attempt to influence [the juror] because the
Bible is not an external influence . . . .”
16.)
(State’s Ex. C1 at
The State further asserted that Petitioner’s affidavits did
not support the view that the juror’s father “tr[ied] to tell her
what to decide” in Petitioner’s case.
(Id. at 17.)
Petitioner’s counsel countered as follows:
“Our position is
that when [the juror] asked her father for guidance and her father
. . . said, ‘Read this section,’ and she said she read the section
he pointed to, that that was tantamount to expressing his opinion
on
what
the
decision
should
be.”
(Id.
at
22.)
Although
Petitioner’s counsel conceded that, if – without consulting her
father about where to look in the Bible – the juror “had gone home
and read the Bible, it wouldn’t be a problem,” Petitioner’s counsel
insisted that Claim I had merit because the juror’s “father told
her to read the particular section of the Bible when she asked him
generally for guidance . . . .”
(Id. at 24.)
The state trial court judge queried Petitioner’s counsel about
the significance of the fact that the juror’s affidavit “doesn’t
say, ‘I asked my father for guidance on what to do about this
. . . ponderous thing I was involved in,’ [but instead says] ‘I
asked my father where I could go to the Bible for guidance.’”
(emphasis added).)
distinction
(Id.
Petitioner’s counsel did not address the
identified
by
the
state
trial
court,
but
rather
responded by simply reiterating the view that because the juror’s
father “pointed [the juror] to a section that . . . specifically
indicated that the appropriate thing to do is life for life, like
-9-
eye for eye, death for death . . . [Petitioner] could show it was
an influence upon [the juror].”
(Id. at 25.)
At that juncture, Petitioner’s counsel expressed a desire “to
develop these facts at a hearing.”
(Id.)
He did not explain what
specific development the record required, but rather repeated the
assertions in Pfeifer’s affidavit about the attempted follow-up
interview of the juror and referenced Petitioner’s filing of a
(Id. at 25-26.)10
Motion for Discovery by Depositions.
According
to Petitioner’s counsel, said Motion would allow Petitioner to
“flush out exactly how this – these conversations [between the
juror
and
her
father
grandmother] went.”
and
between
(Id. at 26.)
the
juror’s
father
and
Petitioner’s counsel did not
identify what aspect of “these conversations” Petitioner wished to
“flush out” or why the state trial court needed such information to
rule on Claim I.
(See id. at 26-27.)
Instead, Petitioner’s
counsel concluded his argument to the state trial court as follows:
We think [the facts in the affidavits from the juror and
Pfeifer] go beyond the Bible-reading cases . . . . [I]f
[the juror] had just read [the Bible], then that’s –
that’s one thing. But her father and her grandmother
being involved and pointing her to a particular section
of the Bible, we believe takes us out of the line of
cases that [the State] is relying on [to oppose Claim I].
(Id. at 27.)
10
Earlier in the hearing, Petitioner’s counsel – in apparent response to
a comment by the State about the absence of evidence that the juror’s father
“knew what case [the juror] was on” (State’s Ex. C1 at 17) – asserted that
Petitioner “could flush that out . . . at a hearing or either at depositions”
(id. at 22). Petitioner’s counsel, however, made clear that he did not perceive
information about the juror’s father’s knowledge of the identity of the specific
capital defendant as necessary to the resolution of Claim I. (See id.)
-10-
Near the end of the hearing, after discussion of other issues
related to Petitioner’s MAR (see id. at 27-125), the state trial
court judge asked about “[a]nything else . . . we need to do
today?” (Id. at 125.) Petitioner’s counsel brought up “the motion
for discovery by depositions” and asked if the state trial court
“want[ed] to reserve ruling on that until [it] rule[d] on the
State’s motion [to deny Claim I on the pleadings] . . . .”
(Id.)
Before relinquishing the floor, Petitioner’s counsel stated:
[T]he basis for our motion [for discovery by depositions]
is that we send [sic] an investigator out to speak to
[the juror]. We’ve spoken to her one time. We would
like to find out exactly which eye-for-an-eye section he
– her father pointed her to.
She won’t speak to us
anymore.
I mean, these are things that we can do in a hearing. We
certainly could ask her these questions at a hearing, but
in the absence of the power to compel these folks to
answer our questions, we’ve not been able to get all the
answers that we were looking for.
(Id. at 125-26.)
At that point, the state trial court judge asked Petitioner’s
counsel if the juror and her father “characterized” the Bible
passage at issue as an “eye for eye” passage (id. at 126) and
Petitioner’s counsel answered as follows:
Yes, sir.
That’s how [the juror] characterized it
originally in her affidavit . . . .
[Her father]
directed her to a passage in the Bible that contained ‘an
eye for an eye.’ And so our initial affidavit is . . .
nonspecific [about which ‘eye for an eye’ passage from
the Bible the juror’s father cited] and we’ve – we’ve
sent back Mr. Pfeifer to speak to [the juror] again, and
that’s been unavailing; his attempts to contact her
grandmother have been unavailing. He has spoken to her
father on one occasion.
But we would like to have the opportunity to ask these
folks questions under oath limited specifically to the
-11-
narrow issue of whether there was any improper or undue
influence exerted upon [the juror] through these
conversations.
(Id.) The state trial court judge noted that a ruling granting the
State’s motion to deny Claim I on the pleadings would render moot
Petitioner’s Motion for Discovery by Depositions.
(Id. at 127.)
Disposition in the State Courts of Claim I of
Petitioner’s MAR and his Motion for Depositions by Discovery
By order dated February 4, 2008, the North Carolina Superior
Court in Randolph County granted the State’s motion to deny Claim
I of Petitioner’s MAR on the pleadings and denied Petitioner’s
Motion for Discovery by Depositions as follows:
CLAIM I
The Court makes the following findings:
1. In claim I, [Petitioner] presents the affidavit
of [a] juror . . . who averred inter alia that she had
lunch with her father prior to sentencing deliberations
at [Petitioner’s] trial and requested her father to
direct her to a Bible passage to help in dealing with her
sentencing decision. The juror’s father directed her to
one of the “eye for an eye” passages in the Bible. That
night [said juror] read the passage: it helped her sleep
better but did not make her sentencing decision any
easier. On this basis, [Petitioner] claims that [the
juror] was subjected to an improper external influence by
her father in violation of the Sixth Amendment.
2.
The Fourth Circuit Court of Appeals has
determined that the Bible does not constitute an improper
external influence in a capital case, whether read aloud
by
one
juror
to
the
others
during
sentencing
deliberations, Robinson v . Polk, 438 F. 3d 350 (4th
Cir.), reh’g denied en banc, 444 F.3d 225 (4th Cir.),
cert. denied, ___ U.S. ___, 127 S. Ct. 514, 166 L. Ed. 2d
383 (2006), Lynch v. Polk, ___ F.3d ___, 2006 U.S. App.
LEXIS 27193 (4th Cir. 2006) (unpublished), cert. denied,
___ U.S. ___, 127 S. Ct. 3021, 168 L. Ed. 2d 741 (2007);
whether read by a juror in the privacy of his home,
Billings v. Polk, 441 F. 3d 238 (4th Cir. 2006), cert.
denied, ___ U.S. ___, 127 S. Ct. 932, 166 L. Ed. 2d 716
(2007); or whether read to herself by a juror during
-12-
deliberations, Lenz v. Washington, 444 F. 3d 295, 311-312
(4th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 10,
165 L. Ed. 2d 992 (2006).
3.
Moreover, [Petitioner] presented no evidence
that [the juror’s] father knew what case [the juror] was
sitting on, and no evidence that he deliberately
attempted to influence her vote by directing her to a
specific passage in the Bible.
Instead, [Petitioner]
presented a motion for depositions of [the juror], her
father, and her grandmother.
Based on the foregoing,
following conclusions of law:
the
Court
makes
the
1. As a matter of federal constitutional law, as
explained in the Fourth Circuit decisions cited above,
[Petitioner’s] claim is without merit.
2. [Petitioner’s] motion for depositions of [the
juror], her father, and her grandmother is DENIED.
3.
The State’s motion to deny claim I on the
pleadings is ALLOWED.
(Docket Entry 6-1 at 5-7.)
After additional proceedings and rulings by the state trial
court denying other claims within Petitioner’s MAR (and amendments
thereto) (see Docket Entry 6-3), Petitioner sought further review
in the North Carolina Supreme Court, including as to Claim I of his
MAR and his Motion for Discovery by Depositions (see State’s Ex. CC
at 53-62),11 which that court summarily denied, State v. Hurst, 364
N.C. 244, 698 S.E.2d 664 (2010).
Proceedings in this Court
On September 20, 2010, Petitioner (through counsel) commenced
the instant federal case by filing a Petition under 28 U.S.C.
11
State’s Exhibit CC consists of Petitioner’s Petition for Writ of
Certiorari to the North Carolina Supreme Court dated June 22, 2009, and appears
only in this Court’s paper file.
-13-
§ 2254 challenging his conviction and sentence.
(Docket Entry 1.)
The State answered and moved for summary judgment. (Docket Entries
16, 17.)
Petitioner responded to the State’s summary judgment
motion (Docket Entries 22-24) and filed the instant Motion for
Leave to Conduct Discovery (Docket Entry 25), in which he seeks “to
conduct depositions of [the juror], her father, . . . and [her]
grandmother” (id. at 1).
DISCUSSION
Identification of the Legal Standard
“Unlike other civil litigants, a § 2254 habeas petitioner ‘is
not entitled to discovery as a matter of ordinary course.’”
Stephens v. Branker, 570 F.3d 198, 213 (4th Cir. 2009) (quoting
Bracy v. Gramley, 520 U.S. 899, 904 (1997)), cert. denied, 130
S. Ct. 1073 (2010).
Instead, to conduct discovery, a habeas
petitioner “must provide reasons for the request,” Rule 6(b), Rules
Governing Sect. 2254 Proceedings, that establish “good cause,” Rule
6(a), Rules Governing Sect. 2254 Proceedings.
cause
must
include
specific
allegations
“A showing of good
suggesting
that
the
petitioner will be able to demonstrate that he is entitled to
habeas corpus relief.”
Stephens, 570 F.3d at 204.
Moreover, the United States Supreme Court recently made clear
that, “[a]lthough state prisoners may sometimes submit new evidence
in federal court, [the Antiterrorism and Effective Death Penalty
Act of 1996’s (the “AEDPA’s”)] statutory scheme [as codified in
§ 2254] is designed to strongly discourage them from doing so.”
-14-
Cullen, 131 S. Ct. at 1401 (emphasis added).
In this regard, if a
state prisoner’s petition under § 2254:
includes a claim that has been “adjudicated on the merits
in State court proceedings” . . . that [petition] “shall
not be granted with respect to such a claim unless the
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.”
Id. at 1398 (quoting 28 U.S.C. § 2254(d)) (internal brackets and
ellipses omitted).
“This is a difficult to meet and highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt.”
Id. (internal citations and quotation marks omitted).12
In light of that principle, the Cullen Court held that, “[i]f
a claim has been adjudicated on the merits by a state court, a
federal
habeas
petitioner
must
overcome
the
limitation
§ 2254(d)(1) on the record that was before that state court.”
at 1400 (emphasis added).
of
Id.
Because Ҥ 2254(d)(2) includes the
language ‘in light of the evidence presented in the State court
proceeding,’”
the
restriction
of
federal
review
under
that
provision to the state court record applies with “additional
clarity.”
Id. at 1400 n.7.
Thus, any new evidence unearthed
during discovery in federal court and “later introduced in federal
12
“Section 2254(d) applies even where there has been a summary denial [of
the claim in state court].” Cullen, 131 S. Ct. at 1402.
-15-
court is irrelevant to § 2254(d)(1) [and (2)] review,” id. at 1400.
In other words, if the state trial court adjudicated Claim I of
Petitioner’s MAR on the merits, such that Petitioner must satisfy
the terms of § 2254(d), “good cause” does not exist for the
discovery Petitioner seeks (at least prior to the analysis required
under § 2254(d)13), because this Court may look only to the state
court record in applying § 2254(d).
As the foregoing discussion indicates, “not all federal habeas
claims by state prisoners fall within the scope of § 2254(d),
[because that subsection] applies only to claims ‘adjudicated on
the merits in State court proceedings.’”
Id. at 1401.
However,
even absent an adjudication on the merits in state court that would
trigger deferential review under § 2254(d), another of the AEDPA’s
provisions codified in Ҥ 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. (emphasis added).
Under § 2254(e)(2):
If [a state prisoner] has failed to develop the factual
basis of a claim in State court proceedings, the
[federal] court shall not hold an evidentiary hearing on
the claim unless the [state prisoner] shows that -(A) the claim relies on --
13
Even if this Court ultimately determined that the state court’s
determination of Claim I fell short under § 2254(d), it could grant Petitioner
relief only after applying the harmless error analysis set forth in Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993). See Bauberger v. Haynes, 632 F.3d 100,
103-05 (4th Cir. 2011) (citing, inter alia, Fullwood v. Lee, 290 F.3d 663, 678-83
(4th Cir. 2002)). Conceivably, after Cullen, the Court could look outside the
state court record to perform that function, provided Petitioner satisfied the
requirements of § 2254(e)(2). See generally Hearn v. Ryan, No. CV-08-448-PHXMHM, 2011 WL 1526912 (D. Ariz. Apr. 21, 2011) (unpublished).
-16-
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) 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.
28 U.S.C. § 2254(e)(2) (emphasis added).
“Under the opening clause of § 2254(e)(2), a failure to
develop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.”
U.S. 420, 432 (2000).
Williams v. Taylor, 529
“Diligence for purposes of the opening
clause depends upon whether the prisoner made a reasonable attempt,
in light of the information available at the time, to investigate
and pursue claims in state court . . . .”
Id. at 435.14
This
standard “ensure[s] 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.”
Cullen,
131 S. Ct. at 1401 (internal brackets and quotation marks omitted).
Application of the Legal Standard
Petitioner seeks to depose the juror in question, her father,
and her grandmother.
(See Docket Entry 25 at 1-2.)
As set forth
14
In the absence of such diligence, a prisoner (like Petitioner) who
raises a claim not based on a new, retroactive constitutional rule, can secure
“an evidentiary hearing [only] if efforts to discover the facts would have been
in vain, see § 2254(e)(2)(A)(ii), and there is a convincing claim of innocence,
see § 2254(e)(2)(B) . . . .” Williams, 529 U.S. at 432. Petitioner does not
contend that he can meet this exception to the diligence requirement.
(See
Docket Entry 26 at 1-12; Docket Entry 41 at 1-7.)
-17-
above, see supra, pp. 14-17, Petitioner must present reasons
showing “good cause” for that request and, in so doing, must
overcome
the
elements
of
§
2254
that
restrict
this
Court’s
authority to consider evidence outside the state court record.
He
has not met that burden.
As an initial matter, it appears that the state trial court
adjudicated Claim I of Petitioner’s MAR on the merits. (See Docket
Entry 6-1 at 5-7.)
Accordingly, § 2254(d) would apply and, under
Cullen, this Court could not consider evidence Petitioner might
uncover in discovery when evaluating the refusal of the state
courts to grant him relief.15
Alternatively, even if § 2254(d) did
not govern the scope of this Court’s review of Petitioner’s claim
15
In conjunction with its summary judgment motion, the State has indicated
its view that § 2254(d) applies to the claim at issue. (See Docket Entry 17 at
14-17; Docket Entry 18 at 8-9; Docket Entry 36 at 3.) Petitioner has countered
that “the state MAR court’s failure to allow factual development of this Claim
through an evidentiary hearing or other discovery procedures resulted in a
decision that was not ‘on the merits.’ Thus, a review under 28 U.S.C. § 2254(d)
is not appropriate . . . .”
(Docket Entry 23 at 4.)
As support for this
position, Petitioner relies on Winston v. Kelly, 592 F.3d 535 (4th Cir.), cert.
denied, ___ U.S. ___, 131 S. Ct. 136 (2010). (See Docket Entry 23 at 4-5.) That
See Cullen, 131 S. Ct. at 1417
decision may not have survived Cullen.
(Sotomayor, J., dissenting) (construing majority opinion as rejecting at least
part of analysis in Winston and agreeing with that aspect of majority opinion);
Atkins v. Clarke, ___ F.3d ___, ___, 2011 WL 1419127 (1st Cir. 2011) (declining
to follow at least part of Winston because of Supreme Court’s intervening ruling
in Cullen). Further, although the Winston Court ruled that, “when a state court
forecloses further development of the factual record . . . [and] the record
ultimately proves to be incomplete, deference to the state court’s judgment
[under § 2254(d)] would be inappropriate because judgment on a materially
incomplete record is not an adjudication on the merits for purposes of
§ 2254(d),” Winston, 592 F.3d at 555-56, it also held that such a finding should
only attach where the petitioner satisfied the “exacting burden[]” of “diligently
develop[ing] the record in state court,” which it implied required more than
simply having asked in conclusory fashion for an evidentiary hearing in state
court, id. at 556-57. Accordingly, to come within the reach of Winston (and thus
to avoid application of § 2254(d)), Petitioner must prove that the state court
improperly denied him an opportunity to develop the factual record in the face
of well-supported requests and that he exercised due diligence in gathering
available information, requirements that mirror the standard under § 2254(e)(2)
(which applies even if § 2254(d) does not).
-18-
regarding the communications between the juror and her father,
Petitioner would have to satisfy § 2254(e)(2) (which precludes this
Court’s consideration of new evidence where a petitioner “failed to
develop the factual basis of a claim in State court proceedings”
absent a showing that the facts in question “could not have been
previously discovered through the exercise of due diligence”).
In his brief in support of his instant Motion, Petitioner
asserted that the Court should order the depositions he requested
because, “[n]otwithstanding [his development of the factual basis
for
Claim
I
in
connection
with
his
state
court
collateral
proceedings], several issues of fact still exists [sic]” (Docket
Entry 26 at 9), specifically:
a.
Which “eye for an eye” passage in the Bible
did [the juror] receive from her father; and
what was the exact manner in which she
received it?
b.
What did [the juror’s] father know about the
case; did he follow news reports about the
case; did he have an opinion about the case at
the time of the improper conversation; did he
know any of the law enforcement officers who
investigated the case; did he know the victim;
and what his feelings were about capital
punishment?
c.
Who did [the juror’s] father speak to about
which passage to give his daughter and what
was the substance of that conversation?
d.
When did the conversation between [the
juror’s] father and his mother about “an eye
for an eye” passage in the Bible take place?
e.
What was [the juror’s] response and reaction
was [sic] after her father gave her “an eye
for an eye passage” from the Bible?
f.
How was the specific Bible passage given to
[the juror]?
-19-
g.
Who else, if anyone, knew about the improper
communication between [the juror] and her
father prior to the time that [the juror]
voted to sentence the Petitioner to death, or,
at any other time; why did they not report the
improper communication to the [state trial
court], court personnel, or anyone else?
h.
Why [the juror] did not immediately report her
improper communication to the [state trial
court], any court personnel, or anyone else;
or why not at some other time?
i.
Whether any notes or other information about
the improper communication exist?
j.
Where did the improper communication(s) take
place?
k.
Was anyone else present at the time of the
improper communication?
l.
Where and how did [the juror’s] father get the
information that he gave to [the juror]?
m.
What was the exact communication between [the
juror] and her father; what was said between
the two?
n.
Whether [the juror] was aware of any
involvement of her grandmother pertaining to
the improper communication?
(Id. at 9-10.)
According to Petitioner’s brief, “[t]hese and other related
questions
have
remained
unanswered
during
the
postconviction
proceedings because [he] has been denied the opportunity to further
develop evidence to clarify issues related to [Claim I of his
MAR].”
(Id. at 10 (emphasis added).)16
In this regard, Petitioner
contends that he “has been prevented from further investigating and
16
Petitioner’s brief does not identify the “other related questions” that
he contends require answers before this Court can evaluate the claim at issue.
(See Docket Entry 26 at 10.)
-20-
presenting additional information by the parties who are alleged to
have been parties to the misconduct[.]”
(Id. (emphasis added).)
The record does not support these contentions.
As documented in the Background section, see supra, pp. 6-7,
Petitioner’s investigator obtained an interview with and a detailed
affidavit from the juror at issue, but – on his return trip to the
juror’s home – could not secure a follow-up meeting. The Court has
difficulty concluding that the failure of the juror to come to the
door on one occasion when Petitioner’s investigator believed the
juror was at home sufficiently establishes that the juror declined
to cooperate with Petitioner’s investigation, particularly given
her prior cooperation. However, even assuming Petitioner has shown
that the juror refused to voluntarily answer a second round of
questions, nowhere in his brief does Petitioner identify any basis
in the record for this Court to find that the juror’s father ever
declined to answer any inquiry.
(See Docket Entry 26 at 1-12.)17
Nor does Petitioner’s brief – which alleges in conclusory fashion
that Petitioner “exercised due diligence in investigating and
presenting [Claim I of his MAR]” (id. at 10) – explain why
Petitioner failed to seek answers to the above-quoted questions
from the juror’s father.
(See id. at 1-12.)18
17
As set forth above, see supra, p. 7, the affidavit from Petitioner’s
investigator submitted to the state trial court contained no reference to any
such refusal by the juror’s father.
18
It appears that the juror’s father could have provided comprehensive
responses to all but the queries contained in paragraphs g, h, and i of
Petitioner’s above-quoted list. In paragraph g, Petitioner reports a need for
answers about “[w]ho else, if anyone, knew about the improper communication
between [the juror] and her father prior to the time that [the juror] voted to
sentence the Petitioner to death or at any other time [and] why did they not
-21-
Petitioner thus has failed to show that he “exercised due
diligence in investigating and presenting [Claim I in the state
trial court]” (id. at 10), at least as to the matters on which he
now seeks discovery, because the record contains no evidence that
Petitioner lacked the ability to obtain the information in question
from the juror’s father without the assistance of the state trial
court.
See Ward v. Hall, 592 F.3d 1144, 1160 (11th Cir. 2010)
(ruling that petitioner failed to satisfy § 2254(e)(2)’s diligence
standard where he “present[ed] no evidence suggesting that the
material that he now seeks to present [in federal court] was not
report the improper communication to the [state trial court], court personnel,
or anyone else?” (Id. at 9.) Petitioner’s brief does not explain the relevance
of such information to Claim I of his MAR. (See id. at 10-12.) As documented
above, see supra, pp. 2-5, 9-11, Petitioner has taken the position that Claim I
turns on whether the juror’s father conveyed his personal view that the juror
should vote for the death penalty to the juror in a manner that infringed
Petitioner’s federal constitutional right to have an impartial jury decide his
sentence based on proper evidence and argument from his trial. The question of
whether others had knowledge of any such communication between the juror and her
father and of why any such person failed to report that knowledge does not have
any easily-discernible connection to the particular constitutional claim
Petitioner has presented and the Court declines to speculate about that subject.
See generally Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)
(“Judges are not expected to be mindreaders. Consequently, a litigant has an
obligation to spell out its arguments squarely and distinctly or else forever
hold its peace.” (internal citations and quotation marks omitted)). As to the
inquiries in paragraph h regarding the juror’s reason for failing to report her
own “improper communication” with her father, one reasonably could infer that the
juror either failed to view her communication with her father as something
improper she should disclose or, having perceived her communication with her
father as improper, wished not to deal with the fallout from disclosing it.
Given the juror’s willingness to provide Petitioner’s investigator with an
affidavit acknowledging the event, the former inference seems more plausible.
In any event, neither alternative circumstance seems particularly pertinent to
the question of whether the communication at issue deprived Petitioner of his
right to a sentencing verdict rendered by an impartial jury based on evidence and
argument properly adduced at trial. At a minimum, the probative value of such
matters lacks sufficient clarity to justify Petitioner’s failure to provide any
argument on this point (see Docket Entry 26 at 10-11). See generally RiveraGomez, 843 F.2d at 635. Finally, although the Court recognizes that information
about the existence of notes documenting the conversation between the juror and
her father might assist Petitioner in pursuing the claim at issue, Petitioner has
not explained why he could not get an adequate account of the exchange between
the juror and her father from the juror’s father. (See id.)
-22-
available [for him to submit to the state court]”); Burton v.
Terrell, 576 F.3d 268, 273 (5th Cir. 2009) (“[The petitioner] was
not diligent in developing the factual record . . . because he
neither claimed nor demonstrated that [the new evidence on which he
seeks to rely in federal court] could not [have] be[en] obtained
absent an order for discovery or a hearing [in state court].”
(internal quotation marks omitted)); Cannon v. Mullin, 383 F.3d
1152, 1176-77 (10th Cir. 2004) (affirming denial of evidentiary
hearing in federal court where petitioner did not explain his
failure to present “readily available” evidence in state court).
In addition, the record (detailed in the Background section,
see
supra,
pp.
2-12)
reflects
that
–
with
one
exception
–
Petitioner did not notify the state trial court that, to adequately
present his claim, he needed answers to any of the questions listed
in his instant Motion.
In his MAR, Petitioner solicited (as an
alternative to an outright grant of relief) “an evidentiary hearing
to resolve any factual dispute” (Docket Entry 2-1 at 9), but did
not identify any potential such dispute (id. at 5-9). Petitioner’s
reply to the State’s motion for judgment on the pleadings requested
a hearing, but cited only clarification of whether the juror’s
father referred the juror to a passage in the Old or the New
Testament as an issue “warrant[ing] factual development at a
hearing.”
(State’s Ex. O at 2-3.)
Pfeifer’s affidavit did not
describe the questions he intended to pose to the juror (in the
never-completed follow-up interview) or to the juror’s grandmother
(had she returned his telephone messages).
-23-
(See Docket Entry 5-2
at 7-8.)
Nor did Petitioner’s Motion for Discovery by Depositions
otherwise outline anticipated queries. (See id. at 2-5.) Finally,
during the hearing before the state trial court, Petitioner’s
counsel referenced only one specific evidentiary gap he wished to
fill
via
discovery
(i.e.,
“which
juror’s] father pointed her to”).
eye-for-an-eye
section
[the
(State’s Ex. C1 at 125.)
Accordingly, apart from the question of whether the juror’s
father referred the juror to one of three “eye-for-an-eye” passages
from the Old Testament (all of which Petitioner contends convey the
same meaning (see State’s Ex. O at 3)) or to the New Testament
passage that arguably juxtaposed the “eye-for-an-eye” phraseology
and
the
“turn-the-other-cheek”
language,19
Petitioner
did
not
present the state trial court with a request for assistance in
obtaining the particular information he now claims that court
wrongfully denied him.
The Supreme Court has stated that, for
purposes of § 2254(e)(2), “[d]iligence 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.”
529 U.S. at 437.
conclusory
demands
Williams,
Given that state courts reasonably may deny
for
evidentiary
hearings,
federal
courts
construing the foregoing language from Williams have ruled that
“[m]ere requests for evidentiary hearings will not suffice[.]”
19
As noted above, see supra, p. 21, Petitioner cannot demonstrate that the
state trial court improperly denied him discovery or an evidentiary hearing to
confirm whether the juror’s father provided the juror a reference to an Old or
New Testament passage, because Petitioner has failed to show that the juror’s
father ever declined to provide such information. Nor does the record support
a finding that the state trial court rejected Claim I of Petitioner’s MAR because
of the possibility that the juror’s father referred the juror to the New
Testament passage. (See Docket Entry 6-1 at 5-7.)
-24-
Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000); accord
Cannon, 383 F.3d at 1176-77 (adopting Dowthitt’s holding that
“[m]ere requests for evidentiary hearings [in state court] will not
suffice” to meet § 2254(e)(2)’s diligence requirement because “[a]n
evidentiary hearing is not the only means to accomplish the task”
of satisfying § 2254(e)(2)’s demand that a petitioner “‘develop the
factual basis of a claim’”).20
In this case, Petitioner asked for an evidentiary hearing and
discovery in the state trial court, but he did so in a fashion that
failed to apprise that court in a meaningful way about what
information he needed judicial compulsion to obtain.
This Court
declines to find fault with the state trial court’s failure to
order discovery or an evidentiary hearing as to the specific,
above-quoted questions in paragraphs a-n of Petitioner’s brief in
support of his instant Motion for Leave to Conduct Discovery in
this Court, given that the record does not reflect that Petitioner
ever told the state trial court he needed answers to those specific
questions to adequately present Claim I.
Moreover, Petitioner
failed to explain both in the state trial court and in this Court
why he did not (or could not) obtain the information in question
from the juror’s father without discovery or a hearing.
20
Although the United States Court of Appeals for the Fourth Circuit has
not expressly adopted this exact position, it “ha[s] emphasized . . . [that the
obligation on a petitioner to] diligently develop the record in state court [is
an] exacting burden[]” and has observed that, “while requesting an evidentiary
hearing from the state courts may be necessary to satisfy § 2254(e)(2)’s
diligence requirement, it may not always be sufficient.” Winston v. Kelly, 592
F.3d 535, 556-57 (4th Cir.) (quoting and placing emphasis on “at a minimum”
phrase from Supreme Court’s statement in Williams, 529 U.S. at 437), cert.
denied, ___ U.S. ___, 131 S. Ct. 136 (2010).
-25-
Under these circumstances, this Court finds insufficient
diligence to satisfy § 2254(e)(2), as another court in the Fourth
Circuit recently did when it confronted an analogous situation:
[The petitioner] argues that because he made requests for
evidentiary hearings, funding for investigators, and
discovery before and during state habeas proceedings, he
was diligent . . . . [He] attempts to draw parallels
between the efforts deemed sufficiently diligent in
Williams and the efforts he took during the state
proceedings . . . .
Williams did state that if the
prisoner has made a reasonable effort to discover the
claims to commence or continue state proceedings through
requests for investigators and expert services denied in
the state proceedings, § 2254(e)(2) will not bar him from
developing them in federal court.
However, [the
petitioner] ignores the fact that in his state habeas
case he did have at least one investigator who met with
[the witness on whose testimony the petitioner now seeks
to rely in federal court] several times.
[The
petitioner] had full access to [this witness] and there
is nothing in [the petitioner’s filings] explaining why
he was unable to [present the information in question]
during the state court proceedings. Therefore, I find
that [the petitioner] was not diligent in developing his
[instant] claim under Williams.
Bell v. True, 413 F. Supp. 2d 657, 682, 684-85, 688-89 (W.D. Va.
2006) (internal citations and quotation marks omitted), aff’d sub
nom. on other grounds, Bell v. Kelly, 260 Fed. Appx. 599 (4th
Cir.), cert. granted in part, 553 U.S. 1031, and cert. dismissed as
improvidently granted, 555 U.S. 55 (2008); see also id. at 684-85
(“find[ing] that [petitioner’s] efforts fall short of . . .
Williams diligence standard . . . [where petitioner] did seek
discovery and resources for more investigation during state habeas
proceedings . . . [but had] never been denied access to [witness
whose testimony petitioner sought to use as support for federal
habeas claim]”), 688-89 (rejecting petitioner’s “argu[ment] that he
was diligent in developing all of these claims in state court based
-26-
on
his
requests
for
discovery,
investigatory
assistance,
and
evidentiary hearings . . . [where petitioner] had free access to
all of these witnesses during the state proceedings”).
CONCLUSION
The
Supreme
Court
has
construed
§
2254
as
“strongly
discourag[ing]” the presentation of new evidence in federal court.
Cullen, 131 S. Ct. at 1401.
In so doing, the Supreme Court has
limited review under § 2254(d) to the state court record and has
emphasized
that
§
2254(e)(2)
restricts
consideration
evidence even when § 2254(d) does not apply.
See id.
of
new
In this
case, it appears that § 2254(d) governs this Court’s review of the
state trial court’s ruling on Claim I of his MAR.
Even if it does
not, Petitioner has failed to show that he met § 2254(e)(2)’s
diligence requirement. As a result, Petitioner has not established
good cause for this Court to order the depositions he seeks.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Leave to
Conduct Discovery (Docket Entry 25) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 1, 2011
-27-
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