Werber v. Beightler
Filing
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Memorandum Opinion and Order denying 38 Petitioner's Motion for leave to Conduct Limited Discovery; and denying 39 Petitioner's Motion for an Evidentiary Hearing. Magistrate Judge Kathleen B. Burke on 12/15/2011.(D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREGORY WERBER,
Petitioner,
v.
ACTING WARDEN, TIM MILLIGAN
AND/OR JASON BUNTING FOR,
FORMER WARDEN MAGGIE
BEIGHTLER
Respondent.
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CASE NO. 1:11CV400
JUDGE POLSTER
MAGISTRATE JUDGE BURKE
Memorandum Opinion and Order
(Re: Doc. Nos. 38 and 39)
Before the Court are the following two motions filed by Petitioner Gregory Werber
(“Petitioner”): (1) “Motion for Leave to Conduct Limited Discovery; with Proposed
Interrogatories and Requests for Admissions, Pursuant to 28 U.S.C. § 2254, Rule 6” (Doc. 38);
and (2) “Motion for an Evidentiary Hearing Pursuant to 28 U.S.C. § 2254(d)(2), (e)(1), (f), (g),
and Rules 7 and 8” (Doc. 39). For the following reasons, the Court DENIES Petitioner’s motion
to conduct discovery and DENIES Petitioner’s motion for evidentiary hearing.
I.
Motion to Conduct Discovery
Petitioner seeks to conduct broad discovery on the following topics: (1) discovery
regarding purported transcript fraud committed by the state court (Doc. 38, pp. 3-4); discovery
regarding the State’s failure to file a complete record of the state court proceedings, including
trial transcripts and exhibits, specifically State’s trial exhibits 42- 43 and Defendant’s trial
exhibit A (Doc. 38, pp. 5-6); discovery regarding a confidential informant (Doc. 38, pp. 7-9);
discovery regarding a purported audio-video recording that was allegedly suppressed by law
enforcement officers (Doc. 38, p. 9); discovery regarding a letter purportedly written by a codefendant (Doc. 38, pp. 10-13); and discovery regarding the state trial court’s transmittal of
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exhibits to the jury room (Doc. 38, pp. 13-19). Petitioner argues that he is entitled to conduct
this discovery under Rule 6 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254
(“Habeas Rules”).
Petitioner’s Motion to Conduct Discovery is moot in part. 1 To the extent it is not moot, it
is denied. The Supreme Court recently emphasized the limited nature of review under Section
2254(d)(1) in Cullen v. Pinholster, __U.S. __ 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). The
Court held that “review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits” and that “evidence introduced in federal court has no
bearing on § 2254(d)(1) review.” Pinholster, 131 S.Ct. at 1398, 1400. The Court reasoned that
the “backward-looking language” of Section 2254(d)(1) “requires an examination of the statecourt decision at the time it was made” and that therefore the record under review must be
“limited to the record in existence at that same time i.e., the record before the state court.” Id. at
1398. Otherwise, the Court observed, “[i]t would be strange to ask federal courts to analyze
whether a state court’s adjudication resulted in a decision that unreasonably applied federal law
to facts not before the state court.” Id. at 1399.
The Sixth Circuit has yet to address Pinholster in detail. In Bray v. Andrews, however,
the Sixth Circuit stated without further elaboration that, “[o]ur review is, as the Supreme Court
recently made clear, ‘limited to the record that was before the state court.’” Bray, No. 09–4151,
2011 WL 1544740, at *4 (6th Cir. Apr. 26, 2011) (quoting Pinholster, 131 S.Ct. at 1398). The
Sixth Circuit noted that, “[i]f Bray is to ‘overcome the limitation of § 2254(d)(1),’ she must do
so ‘on the record that was before the state court.’” Id. (quoting Pinholster, 131 S.Ct. at 1400).
1
The Court ordered Respondent to file all of the transcripts from the state court proceedings and Trial Exhibits 4243, and A in an Order dated September 29, 2011. Doc. 40. On October 20, 2011, and November 2, 2011,
Respondent filed all of the trial transcripts. Doc. Nos. 44, 46. And, on December 12, 2011, Respondent filed Trial
Exhibits 42-43, and A. Doc. 50. Thus, to the extent that Petitioner’s motion seeks to conduct discovery regarding
the filing of the transcripts and/or Trial Exhibits 42-43, and A, the motion is moot.
2
Many courts have broadly and strictly applied Pinholster to preclude discovery of new
evidence for the purpose of ruling on claims that were adjudicated on the merits by a state court.
See, e.g., Coddington v. Cullen, No. CIV S-01-1290, 2011 U.S. Dist. LEXIS 57442, 2011 WL
2118855, at *1 (E.D. Cal. May 27, 2011). As explained by the Middle District of North
Carolina:
[A]ny new evidence unearthed during discovery in federal court and ‘later introduced in
federal court is irrelevant to § 2254(d)(1) [and (2)] review.’ In other words, if the state
trial court adjudicated . . . Petitioner's [claim] on the merits, such that Petitioner must
satisfy the terms of § 2254(d), “good cause” does not exist for the discovery Petitioner
seeks . . . because this Court may look only to the state court record in applying §
2254(d).
Hurst v. Branker, No. 1:10 CV 725, 2011 U.S. Dist. LEXIS 58910, 2011 WL 2149470, at a8
(M.D.N.C. June 1, 2011) (quoting Pinholster, 131 S. Ct. at 1400)).
Additionally, this Court recently addressed the impact of Pinholster on discovery and
determined that review of claims under § 2254 that were adjudicated on the merits are “limited to
the state-court record, and other evidence has no bearing on the Court’s review.” Williams v.
Mitchell, 1:09 CV 2246, 2011 U.S. Dist. LEXIS 108493, 2011 WL 4457788, at *2 (N.D. Ohio
Sept. 23, 2011). The Court found that “allowing further factual development would be futile
since the Court could not consider the information obtained in further discovery or an evidentiary
hearing in resolving [the petitioner’s claim].” Id.
Petitioner has asserted thirteen grounds for relief in his petition for writ of habeas corpus.
Doc. 1. In his Traverse, Petitioner argues that he properly raised all of his claims in the state
courts and that all of his claims were adjudicated on the merits by those courts. Doc. 35, pp. 2733. Thus, under the clear language of Pinholster, this Court’s review of Petitioner’s claims is
limited to the record that was before the state courts. Pinholster, 131 S. Ct. at 1398. Allowing
further factual development would be futile because the Court could not consider any of the
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newly discovered evidence on review. Williams, 2011 WL 4457788, at *2. Thus, Petitioner’s
motion to conduct discovery is DENIED.
II.
Motion for Evidentiary Hearing
In his motion for evidentiary hearing (Doc. 39), Petitioner asserts that the facts
supporting each of his thirteen grounds for relief are contained in the state court record. Doc. 39,
passim. However, Petitioner argues that an evidentiary hearing is necessary because it will
permit him to authenticate and admit into evidence transcripts he has previously filed in this
case, will permit him to explore the circumstances surrounding the State’s failure to file a
complete record, and will allow him to bolster the arguments he previously has made in support
of each of the 13 grounds stated in his petition. Doc. 39, p. 2. 2
Extended discussion of Petitioner’s arguments is not necessary. Petitioner’s claims that
he needs to authenticate the transcripts he filed and to explore the State’s failure to file a
complete record are moot for the reasons stated in note 1 above. As set forth in the previous
section, under Pinholster, the Court’s review under § 2254(d) is confined to the record before the
state courts. Thus, to the extent that Petitioner seeks a hearing to bolster the arguments he has
already made by developing new evidence for the Court to consider, such a hearing would be
futile because, under Pinholster, the Court may not consider any newly developed evidence.
Accordingly, Petitioner’s motion for evidentiary hearing is DENIED.
2
Petitioner filed a 102-page Traverse on August 4, 2011. Doc. 35.
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III.
Conclusion
For the foregoing reasons, Petitioner’s motion to conduct discovery (Doc. 38) and
Petitioner’s motion for evidentiary hearing (Doc. 39) are DENIED.
IT IS SO ORDERED.
Dated: December 15, 2011
Kathleen B. Burke
United States Magistrate Judge
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