Esparza v. Anderson

Filing 207

Order granting in part and denying in part Petitioner's Motion to alter/amend judgment (Related Doc # 197 ); granting Petitioner's Motion for order to expand the record(Related Doc # 200 ); granting in part and denying in part Petitioner's Motion to alter/amend judgment (Related Doc # 201 ). Judge Christopher A. Boyko on 2/27/2013.(R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

Gregory Esparza,
Petitioner,
v.
Carl Anderson, Warden,
Respondent.

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CASE NO. 3:96 CV 7434
JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINION
AND ORDER

CHRISTOPHER A. BOYKO, J.:
I.

Introduction
This matter is before the Court upon Petitioner Gregory Esparza’s Motion to Alter or

Amend Judgment Pursuant to Rule 59(e) (ECF # 197), Supplemental Memorandum in Support
of Motion to Alter or Amend Judgment (ECF # 201), and Motion to Expand the Record
Pursuant to Rule 5 (ECF # 200). Respondent filed a Response in Opposition (ECF # 203), and
Petitioner filed a Reply (ECF # 206).
For the following reasons, Petitioner’s Motion to Alter or Amend Judgment and
Supplemental Memorandum in Support Thereof (ECF # 197, 201) are granted in part, and
denied in part. Petitioner’s Motion to Expand the Record (ECF # 200) is granted.
II.

Background
The factual and procedural history of this matter is set forth at length in this Court’s July

12, 2012 Memorandum of Opinion and Order (ECF # 194) and will not be repeated here in full.

Rather, this Opinion will set forth only that background information necessary for resolution of
Esparza’s motions.
On October 13, 1983, Esparza was indicted on one count of Aggravated Murder and one
count of Aggravated Robbery in connection with the death of Melanie Gerschultz. Esparza
pleaded not guilty to the charges and proceeded to trial on May 4, 1984. The jury returned a
guilty verdict as to both charges on Thursday, May 10, 1984. Denying defense counsel’s
request for a continuance, the trial court ordered that the sentencing hearing begin five days
later, on Tuesday, May 15, 1984. The jury returned two days later with the recommendation
that Esparza be given the death penalty. The trial judge accepted the jury’s recommendation
and sentenced Esparza to death.
In the years that followed, Esparza attacked his convictions and sentence via direct
appeal, post-conviction relief, and a Rule 26(B) Application for Re-Opening. His convictions
were affirmed on direct appeal by both the Ohio Court of Appeals and the Ohio Supreme Court.
See State v. Esparza, 1986 WL 9101 (Ohio Ct. App. Aug. 22, 1986); State v. Esparza, 529
N.E.2d 192 (Ohio 1988).1 Esparza’s first petition for post-conviction relief, filed in November
1989, was denied without an evidentiary hearing. See State v. Esparza, No. CR-83-6602 (Ohio
Ct. Common Pleas June 18, 1990); State v. Esparza, 1992 WL 113827 (Ohio Ct. App. May 29,
1992); State v. Esparza, 602 N.E.2d 250 (Ohio 1992). As set forth in greater detail infra,
Esparza filed a successor post-conviction petition on November 14, 1991 based on documents
he obtained in response to a public records request. It appears this successor petition was not

1

The United States Supreme Court thereafter denied Esparza’s Petition for Certiorari.
Esparza v. Ohio, 490 U.S. 1012 (1989).
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ruled on by the state trial court. Esparza’s Rule 26(B) Application for Relief pursuant to State v.
Murnahan, 584 N.E.2d 1204 (Ohio 1992) was denied by the state appellate court in May 1995.
See State v. Esparza, 1995 WL 302302 (Ohio Ct. App. May 19, 1995); State v. Esparza, 660
N.E. 2d 1194 (Ohio 1996).
On September 5, 1996, Esparza filed his Petition for Writ of Habeas Corpus in this
Court, raising fifty-six (56) claims for relief. (ECF # 12). Respondent filed his Return of Writ
on October 25, 1996 (ECF # 16), and Esparza filed his Traverse on April 1, 1997 (ECF # 33).
Esparza also filed motions for discovery, to expand the record, and for an evidentiary hearing.
This Court, through Judge Kathleen O’Malley,2 allowed Esparza to conduct limited discovery
and granted his Motion for an Evidentiary Hearing. (ECF # 41). This hearing was conducted
on August 17 - 18, 1999. Seven witnesses testified, including one of Esparza’s trial counsel
(Keithly Sparrow) and an expert in neuropsychology (Dr. Michael Gelbort).
In a Memorandum of Opinion & Order dated October 13, 2000 (ECF # 132), the Court
found four of Esparza’s fifty-six claims for relief to be well-taken, i.e. Claims 1, 39, 44, and 52.
In these Claims, Esparza argued that (1) the indictment was defective because it failed to
contain all of the elements necessary to charge Esparza with capital murder (Claim 1); (2) the
trial court violated his constitutional rights when it denied defense counsel’s request for a
continuance to prepare for the sentencing hearing (Claim 39); (3) he was deprived of his
constitutional rights in light of the ineffective assistance of his counsel during the mitigation
phase (Claim 44); and (4) the convictions and death sentence are unreliable due to cumulative

2

This matter was initially assigned to Judge Kathleen O’Malley. It was re-assigned to
the undersigned in 2011 after Judge O’Malley was appointed to the United States Court of
Appeals for the D.C. Circuit.
-3-

error in the sentencing phase. (Claim 52).
The Court agreed with Esparza as to each of these four Claims and granted Esparza’s
Petition in part.3 Specifically, as to Claim 1, the Court held the indictment in the instant case
failed to contain an appropriate capital specification because it did not charge Esparza either
with being the “principal offender” or with having committed murder with “prior calculation
and design.” The Court further noted that, because the trial court based its jury instructions on
the indictment, the trial court failed to instruct the jury that in order to convict Esparza of
capital murder, as distinct from mere aggravated murder, it must find that he was either the
principal offender or that he committed the murder with prior calculation and design. In light of
these errors, the Court found that “while Esparza was indicted for, and found guilty of,
aggravated murder, the same cannot be said with respect to the crime of capital murder.” (ECF
#132 at 74). The Court then concluded that “the error which infected Esparza’s trial by virtue
of the defective indictment” was a structural error and the imposition of the death penalty upon
him would be unconstitutional. (ECF # 132 at 77).
With regard to Claim 44 (IAC during mitigation), the Court found defense counsel were
“grossly unprepared” for the mitigation phase of the trial and “the failure of defense counsel to
investigate Esparza’s background was both objectively unreasonable and prejudicial.” (ECF #
132 at 146). Specifically, the Court ruled Esparza’s defense counsel was prejudicially deficient
because he (1) failed to collect records of Esparza’s social and medical history; (2) failed to
investigate and present mitigating evidence regarding either Esparza’s “extremely traumatic and

3

The Court also explicitly considered and rejected Esparza’s other 52 claims as being
without merit, including Esparza’s Brady Claim (Claim 3). (ECF # 132 at 43-45).
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abusive childhood,” his brain injury, or his mental deficiencies; and (3) failed to elicit
meaningful mitigating evidence from the defense witnesses that were called during the
mitigation phase. In addition, the Court was particularly concerned about defense counsel’s
“uninformed decision” to request a pre-sentence investigation and psychological report. The
Court noted defense counsel had failed to understand that the entirety of this report would be
introduced as evidence and failed to provide the Probation Department with any material to be
considered in preparing this report. The Court noted the PSI and psychological report
introduced during mitigation was “devastating.” In light of the above, the Court concluded
defense counsel’s performance was objectively deficient and “[t]he proceedings here cannot be
relied upon to have produced a just result.” (ECF # 132 at 144).
In so finding, the Court relied heavily upon the evidence adduced at the August 1999
federal evidentiary hearing. Indeed, the Court specifically noted that, while the state courts had
refused to hold an evidentiary hearing on this issue because they believed the claim could be
determined by reference to the trial court record, “[t]his Court, after conducting its own hearing,
finds . . . that the sentencing phase ineffective assistance of counsel claim is largely based on
evidence dehors the record.” (ECF # 132 at fn 67).
With regard to Claim 39 (denial of continuance), the Court agreed with Esparza that the
trial court violated his constitutional rights when it denied defense counsel’s request for a
continuance to prepare for the sentencing hearing. The Court noted that “[t]he trial judge in this
matter was aware both that he had appointed trial counsel less than eight weeks before trial was
to commence and that counsel was relatively inexperienced in capital cases when appointed.”
(ECF # 132 at 148). The Court further explained the trial judge was aware that, when the

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continuance was requested, trial counsel had not prepared for the sentencing hearing but
nevertheless denied counsel additional time to prepare. Under such circumstances, the Court
found it was “impermissibly arbitrary for the trial court to deny a continuance to allow time to
prepare for a portion of the proceedings which literally could mean the difference between life
and death for a defendant.” (ECF # 132 at 149).
Finally, with regard to Claim 52 (cumulative error), the Court found that “Esparza’s
counsel’s ineffectiveness during the sentencing phase of the trial, coupled with the trial judge’s
refusal to provide Esparza’s counsel with a continuance to prepare for the sentencing phase of
the trial, and the prejudicial effect of the blanket admission of the pre-sentence investigation
report, including its psychological aspects, constitute cumulative error sufficient to mandate
partial habeas corpus relief.” (ECF # 132 at 150-51).
Based on the above, the Court issued a writ of habeas corpus as follows: “[t]he
respondent shall set aside Esparza’s sentence of death and, instead, impose a life sentence under
Ohio Rev. Code § 2929.03(A) for aggravated murder with no capital specification.” (ECF #132
at 158).
Respondent appealed the Court’s ruling with regard to Counts 1, 39, 44, and 52 (i.e. the
defective indictment, denial of continuance, IAC during mitigation, and cumulative error
claims). Esparza cross-appealed, raising three grounds on which he asked the court to grant a
general writ invalidating his convictions for Aggravated Murder and Aggravated Robbery.
These grounds were (1) IAC at trial claims based on defense counsel’s failure to interview
witnesses (Counts 14, 15, 17 and 19(v)); (2) several Brady claims (Count 3); and (3) a claim
based on the trial judge’s refusal to recuse himself after conducting a witness certification

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hearing (Count 7). On appeal, the Sixth Circuit agreed the indictment was constitutionally
defective and affirmed the Court’s decision to grant Esparza’s Petition in part and vacate the
death sentence. Esparza v. Mitchell, 310 F.3d 414 (6th Cir. 2002). In its decision, the court
considered only that part of this Court’s decision relating to Esparza’s defective indictment
claim and expressly stated that “we need not reach the alternate grounds on which Esparza asks
us to vacate the death sentence: that he was denied effective assistance of counsel at sentencing,
that his rights were violated when he was denied a continuance to prepare for the sentencing
phase, and that his rights were violated through cumulative error in the sentencing phase.” Id. at
422. In addition, the Sixth Circuit considered and rejected each of the three grounds raised by
Esparza in his cross-appeal, including Esparza’s Brady claim. Id. at 422-425.
Both Respondent and Esparza filed petitions for certiorari regarding different aspects of
the Sixth Circuit’s decision. Esparza’s Petition related to the denial of the three claims for
which he had sought a general writ, including his Brady claim. (ECF #147). Esparza’s Petition
was denied by the Supreme Court. See U.S. Supreme Court Docket, Case No. 02-8849.
Respondent’s Petition was granted. In a per curiam decision dated November 3, 2003,
the United States Supreme Court reversed the decision of the Sixth Circuit regarding Esparza’s
defective indictment claim. Specifically, the Supreme Court held the Sixth Circuit had erred in
finding that the Ohio courts were objectively unreasonable in determining the defects in
Esparza’s indictment constituted “harmless error.” Mitchell v. Esparza, 540 U.S. 12, 17-18
(2003). In a footnote, the Supreme Court specifically stated that “[o]ur decision, like the Court
of Appeals’, is limited to the issue presented here ... We express no view whether habeas relief
would be available to [Esparza] on other grounds.” Id. at fn 4. The Supreme Court then

-7-

remanded the case “for further proceedings consistent with this opinion.” Id. at 19. Shortly
thereafter, Esparza filed a “Petition for Rehearing of Decision and Judgment” in the Supreme
Court, which was summarily denied.
The case was remanded to the Sixth Circuit. That court then issued an Order on
November 17, 2003, which stated, “[h]aving received the Supreme Court’s opinion decided
November 3, 2003, in the above-entitled case which reverses and remands the case for ‘further
proceedings consistent with this opinion,’ we hereby remand the case to the District Court for
reconsideration in light of the Supreme Court’s opinion.” See 11/17/2003 Order (ECF # 151).
That same day, the Sixth Circuit issued a mandate “pursuant to the court’s disposition that was
filed 11/17/03.” (ECF # 152).4
Once the case was remanded to this Court, Esparza moved for a stay to allow him to
pursue an Atkins claim in state court. On February 20, 2004, the Court granted Esparza’s
motion and agreed to hold proceedings in abeyance. (ECF # 159). Six years later, the Court
removed the case from abeyance and set a status conference for March 30, 2010. (ECF # 166,
167). During the status conference, counsel for Esparza explained he had determined Esparza’s

4

Esparza filed a Motion to Recall Mandate, arguing the Sixth Circuit “should retain
jurisdiction as Esparza won relief on several other issues in the District Court and those
issues still need to be addressed by this Court.” (Docket for Esparza v. Mitchell, 6th Cir.
Case No. 00-4615, Appellee’s Motion to Recall Mandate at 2). Specifically, Esparza
maintained that “this Court’s mandate contained no directive as to how the other issues on
which Esparza was granted relief should be handled,” and the need for further briefing and
oral argument on these issues was “most appropriately addressed by this Court.” (Id. at 4).
Respondent opposed Esparza’s motion. On December 17, 2003, the Sixth Circuit issued a
one-sentence Order denying Esparza’s Motion to Recall Mandate. This Order did not
discuss the other issues on which Esparza had obtained relief in this Court’s October 13,
2000 Opinion & Order or provide any further guidance as to how this Court should proceed
on remand.
-8-

Atkins claim was without merit and had voluntarily dismissed it prior to any actual merits
determination by the state court. (Transcript of 3/30/2010 Status. Conf. at 2). The Court then
asked the parties to “brief the issue of both what you think the scope of the remand is in terms of
the Court’s jurisdiction, and you can provide me with any supplemental authority that relates to
the issues that you believe are still to be alive for this Court’s consideration.” Id. at 11.
Pursuant to the Court’s Order, Respondent filed a “Supplemental Answer” on June 15,
2010. (ECF # 170). Relying on numerous recent Supreme Court and Sixth Circuit cases,
Respondent basically reargued the merits of the three additional claims upon which the Court
granted Esparza’s Petition, i.e. (1) IAC during mitigation, (2) denial of continuance, and (3)
cumulative error in the sentencing phase of the trial. Respondent maintained that, under new
case law which he believed supported the denial of these claims, this Court should reverse its
prior ruling and dismiss Esparza’s Petition for Writ of Habeas Corpus in its entirety.
In his “Memorandum in Re Proceedings on Remand” (ECF # 174), Esparza defended
the Court’s Opinion & Order and asked the Court to (1) reconsider and assess his denial of
continuance and IAC during mitigation claims; (2) “re-adopt” the Court’s review of these
claims; and (3) grant Esparza’s Petition for Writ of Habeas Corpus.5 He argued the law
governing the claims in his case is “little changed” since the Court’s prior ruling granting in part
Esparza’s Petition, and “cases decided since 2000 reinforce this Court’s analysis and legal
conclusions.” (ECF # 174 at 6). Esparza then reargued the merits of his denial of continuance
and IAC during mitigation claims, and asserted this Court should re-adopt its previous rulings

5

Petitioner conceded his cumulative error claim (Claim 52) is no longer a justifiable
basis for independent habeas relief. (ECF # 174 at 16).
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and grant Esparza’s Petition.
On July 20, 2011, this Court ordered the parties to submit cross-briefs regarding the
effect, if any, of the Supreme Court’s recent decision in Cullen v. Pinholster, 131 S.Ct. 1388
(2011) on the instant case.6 The parties submitted their cross-briefs on “the Pinholster effect”
on August 29, 2011. (ECF # 178, 179). In his cross-brief, Respondent argued Esparza’s IAC
during mitigation and denial of continuance claims were adjudicated on the merits by the state
courts and therefore, under Pinholster, this Court could not consider any of the testimony or
evidence developed in the federal evidentiary hearing. Viewing these claims in the absence of
such evidence, Respondent maintained the Court’s previous decision granting relief on these
claims was now unsupportable and must be vacated. (ECF # 178 at 12-18).
Esparza argued generally that Pinholster did not apply to (1) any claims that were not
adjudicated on the merits by the state court, or (2) any state court decision which this Court has
decided is an “unreasonable application of federal law” pursuant to § 2254(d)(1). He asked the
Court to find that “there was no decision rendered by the Ohio courts that is subject to the
limitations on relief in 28 U.S.C. § 2254(d),” and therefore Pinholster does not bar this Court
from conducting further discovery regarding Esparza’s claims.
On July 12, 2012, this Court issued a Memorandum of Opinion & Order denying
Esparza’s Petition. (ECF # 194). The Court first found it had the authority to re-evaluate that
portion of this Court’s October 13, 2000 Opinion & Order granting Esparza’s Petition with

6

In Pinholster, the Supreme Court held that federal habeas review of a claim
adjudicated on the merits by a state court “is limited to the record that was before the state
court.” Pinholster, 131 S.Ct. at 1398.
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respect to Esparza’s denial of continuance and IAC during the mitigation phase claims. (ECF #
194 at 17 - 19). It then rejected Esparza’s argument that the Court should re-evaluate all of
Esparza’s other grounds for relief to determine whether they had been impacted by Pinholster
and to potentially order further discovery as to these claims. (ECF # 194 at 19). Specifically,
the Court found Esparza had waived his right to raise on remand any issues which he did not
raise during his cross-appeal to the Sixth Circuit. See JGR, Inc. v. Thomasville Furniture
Indus., Inc., 550 F.3d 529, 532 (6th Cir. 2008) (“a party that fails to appeal an issue waives his
right to raise the issue before the district court on remand”). As to the three claims raised by
Esparza in his cross-appeal (including the Brady claim), the Court found that it would not
consider these claims on remand for the following reasons:
In its decision, the Sixth Circuit expressly considered and rejected these three
claims. Esparza v. Mitchell, 310 F.3d 414, 422-25 (6th Cir. 2002). Esparza
thereafter filed a Petition for Writ of Certiorari to the Supreme Court
regarding the denial of these three claims, which was denied. (ECF # 147;
U.S. Supreme Court Docket, Case No. 02-8849). The Sixth Circuit’s decision
with regard to the three issues raised by Esparza on cross-appeal became final
once the Supreme Court denied Esparza’s Petition for Certiorari. Thus, this
Court does not have jurisdiction to reconsider those claims on remand.
(ECF # 194 at 20).
In its review of Esparza’s denial of continuance and IAC during the mitigation phase
claims, the Court first concluded it was limited under Pinholster to considering only that
evidence that was before the state courts and could not consider any evidence adduced during
the August 1999 federal evidentiary hearing. (ECF # 194 at 33). Because the Court’s October
13, 2000 Opinion & Order relied heavily on evidence adduced during that hearing, the Court
found that its rulings in that previous Opinion regarding Esparza’s denial of continuance and
IAC during mitigation claims must be vacated. (ECF # 194 at 33). The Court then proceeded
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to analyze these claims under 28 U.S.C. §2254(d)(1), considering only that evidence that was
before the state courts. After exhaustively reviewing the state court record, the Court concluded
the state courts’ resolution of Esparza’s denial of continuance and IAC during mitigation claims
was not contrary to, or an unreasonable application of, clearly established federal law pursuant
to § 2254(d). (ECF # 194 at 59-63, 67-92).
On August 9, 2012, Esparza filed a Motion to Alter or Amend Judgment Pursuant to
Rule 59(e) (ECF # 197). Several weeks later, on August 23, 2012, he filed a Motion to Expand
the Record Pursuant to Rule 5 (ECF # 200) and a “Supplemental Memorandum in Support” of
his Motion to Alter or Amend Judgment (ECF # 201). After requesting and receiving several
extensions, Respondent filed a “Response in Opposition to Motion to Alter or Amend Judgment
and Motion to Expand the Record” on December 7, 2012. (ECF # 203). Esparza filed his
Reply Brief on January 14, 2013. (ECF # 206).7
It is these Motions that are currently before the Court.
III.

Analysis
A.

Motion to Expand the Record (ECF # 200)

Esparza asks the Court to expand the record in these habeas proceedings pursuant to
Habeas Rule 5 to include two documents relating to his November 1991 Successor PostConviction Petition. First, Esparza seeks to expand the record to include his “Motion For
Remand to Trial Court,” filed in the Sixth District Court of Appeals of Ohio on May 13, 1991.
(ECF # 200-1). Second, he asks the Court to expand the record to include a June 18, 1991

7

Prior to filing his Reply Brief, Esparza filed a “Motion to File Reply Brief and for
Hearing on Rule 59(e) Motion.” (ECF # 204). On December 14, 2012, the Court marginally
granted Esparza’s request to file a Reply Brief, but denied his request for a hearing.
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Decision and Journal Entry from the state appellate court denying Esparza’s motion and
directing counsel to file a successor post-conviction petition. (ECF # 200-2). Esparza claims
these documents are part of the state court record but were not included in the Appendix to the
Return of Writ. He argues the habeas record should be expanded to include these documents
because they are important to the resolution of his Motion to Alter or Amend Judgment.
In his Response in Opposition to Esparza’s motions, Respondent states he “does not
object to the Motion to Expand the Record (ECF # 200) as it relates to the two attached
exhibits.” (ECF # 203 at 1).
The Rules Governing Section 2254 Cases give a respondent discretion to attach to his
answer parts of the record that he considers relevant. See Rule 5(c) of the Rules Governing
Section 2254 Cases. Pursuant to Rule 5, a district court “may order that the respondent furnish
other parts of the existing transcripts or that parts of untranscribed recordings be transcribed or
furnished.” Id. Interpreting this Rule, the Sixth Circuit has recognized that expansion of the
record in habeas cases “is not mandatory . . . and is left to the discretion of the trial judge.”
Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988). See also Beuke v. Houk, 537 F.3d 618, 653
(6th Cir. 2008).
Esparza’s Motion to Expand the Record (ECF # 200) is granted. The two documents
which Esparza seeks to include in the habeas record are state court filings which relate to the
procedural history and status of Esparza’s 1991 Successor Post-Conviction Petition. This issue
is relevant to the resolution of Esparza’s Motion to Alter or Amend Judgment. Accordingly,
and in light of the fact that Respondent does not oppose Esparza’s motion, the Court will
exercise its discretion under Habeas Rule 5 to expand the record to include the two documents

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attached to Esparza’s Motion to Expand the Record.8
B.

Motion to Alter or Amend Judgment Pursuant to Rule 59(e) (ECF # 197)
and “Supplemental Memorandum in Support of his Motion to Alter or
Amend” (ECF # 201)

Federal Rule of Civil Procedure 59(e) allows district courts to alter, amend, or vacate a
prior judgment.9 See Fed. R. Civ. Proc. 59(e); Huff v. Metropolitan Life Insur. Co., 675 F.2d
119, 122 (6th Cir. 1982). The purpose of Rule 59(e) is “to allow the district court to correct its
own errors, sparing the parties and appellate courts the burden of unnecessary appellate
proceedings.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (quoting York v. Tate,
858 F.2d 322, 326 (6th Cir. 1988)). It permits district courts to amend judgments where there is:
“(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005).
The Sixth Circuit has explained that “Rule 59(e) motions cannot be used to present new
arguments that could have been raised prior to judgment.” Howard, 533 F.3d at 475. See also
Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007); Sault
Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1988). Indeed,

8

The Court notes the state appellate court’s June 18, 1991 Decision and Journal Entry
denying Esparza’s Motion for Remand (ECF # 200-2) is, in fact, included in the Appendix.
Specifically, it is attached as Exhibit 85 to Esparza’s November 1991 Successor PostConviction Petition. (ECF # 16 at Exh. V (Exh. 85)). However, in an abundance of caution,
this Court will nevertheless grant Esparza’s motion and expand the record to formally
include this document.
9

The federal civil rules apply in habeas cases “to the extent that they are not
inconsistent with any statutory provisions or [the habeas rules] . . .” See Rule 12 of the Rules
Governing Section 2254 Cases.
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“Rule 59(e) allows for reconsideration; it does not permit parties to effectively ‘re-argue a
case.’” Howard, 533 F.3d at 475 (quoting Sault Ste. Marie Tribe, 146 F.3d at 374). The grant
or denial of a Rule 59(e) motion is within the informed discretion of the district court. Huff,
675 F.2d at 122; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810 -1, at 124
(2d ed. 1995).
Esparza filed his Motion to Alter or Amend Judgment on August 9, 2012. (ECF # 197).
In that Motion, he argues the Court’s July 12, 2012 Opinion & Order incorrectly stated that the
state courts denied his November 1991 Successor Post-Conviction Petition without an
evidentiary hearing. He argues that, in fact, this post-conviction Petition (hereinafter referred to
as “1991 Successor Post-Conviction Petition”) was never adjudicated by the state courts and
remains pending in the Lucas County Court of Common Pleas. Because this post-conviction
Petition was not resolved by the state courts and includes a number of penalty phase claims,
Esparza asserts his denial of continuance and IAC during mitigation claims were not
“adjudicated on the merits” for purposes of § 2254(d). Therefore, he argues, this Court should
find that Pinholster is not applicable and it is not foreclosed from considering the evidence
adduced during the August 1999 federal evidentiary hearing. He further maintains that the
Court should “reaffirm the relevant findings and conclusions” set forth in Judge O’Malley’s
October 2000 Opinion & Order and “at a minimum” grant habeas relief on his denial of
continuance and IAC during mitigation claims.
Several weeks later, on August 23, 2012, Esparza filed a “Supplemental Memorandum
in Support of his Motion to Alter or Amend Judgment.” (ECF # 201). This “Memorandum”
raises a number of additional arguments as to why this Court should reconsider its July 2012

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Opinion & Order.10 Esparza’s first argument relates to his first post-conviction Petition, filed in
the Lucas County Court of Common Pleas in November 1989 (hereinafter “1989 PostConviction Petition”). Esparza maintains that, although he submitted numerous affidavits and
other evidence dehors the record in support of his 1989 Post-Conviction Petition, the state
courts refused to consider this evidence and denied his Petition solely on the basis of the trial
court record. He asserts that, because the state courts failed to consider “key evidence”
submitted dehors the record, his 1989 Post-Conviction Petition was not “adjudicated on the
merits” for purposes of § 2254(d). Thus, Esparza argues, Pinholster does not apply and this
Court should have conducted a de novo review.
Next, Esparza reiterates that his 1991 Successor Post-Conviction Petition was never
adjudicated on the merits by the state courts and, therefore, Pinholster does not foreclose this
Court from considering the evidence adduced during the August 1999 federal evidentiary
hearing. He goes on to argue that the state courts’ failure to adjudicate his 1991 Successor PostConviction Petition should not render his denial of continuance and IAC during mitigation
claims unexhausted. Rather, Esparza asserts this Court should declare these claims exhausted
in light of the state courts’ “inordinate delay” in adjudicating his claim.
Finally, Esparza argues at length that this Court should have considered his Brady claim
on remand because the Supreme Court's decision impacted the Sixth Circuit's Brady analysis,

10

In this respect, Esparza’s “Supplemental Memorandum” is not truly “supplemental”
but, rather, is an attempt to raise a number of new arguments not previously raised in his
Motion to Alter or Amend Judgment. As this “Supplemental Memorandum” was filed 41
days after the Court’s July 12, 2012 Opinion & Order, the Court questions whether it is
timely filed pursuant to Rule 59(e). However, as Respondent has not moved to strike
Esparza’s “Supplemental Memorandum,” this Court will consider and address the
arguments raised therein.
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rendering it open to reconsideration on remand in this Court. Esparza maintains the Supreme
Court reversed this Court’s October 2000 Opinion & Order ruling on the defective indictment
claim on the grounds that the defect was “harmless error” since “there was no evidence
presented that anyone other than [Esparza] was involved in the crime.” See Esparza, 540 U.S.
at 18. Esparza now argues the Brady material at issue in his 1991 Successor Post-Conviction
Petition indicates he may not have been the principal offender. Because the Supreme Court’s
analysis suggests that whether Esparza was the principal offender is a material issue, and this
undermines the Sixth Circuit’s rejection of his Brady claim, he argues this Court should now
re-open his Brady claim on remand. He further argues this Court should consider his Brady
claim de novo since the state courts have never adjudicated it.
In response, Respondent maintains Esparza’s denial of continuance and IAC during
mitigation claims set forth in the 1991 Successor Post-Conviction Petition were, in fact,
adjudicated on the merits. While he acknowledges that he “misstated the [procedural] posture
of the second post-conviction petition in his supplemental brief,” he points out that twelve of
the fourteen IAC claims set forth in that petition were previously considered and rejected on the
merits by the state courts in connection with the 1989 Post-Conviction Petition. According to
Respondent, the two IAC claims in the 1991 Petition not previously addressed by the state
courts allege that counsel were ineffective for failing to (1) object to the imposition of the death
penalty because defendant had not been convicted of a capital offense; and (2) advise Esparza to
give an unsworn statement during mitigation. With respect to the first claim, Respondent
argues it is now foreclosed by the Supreme Court’s rejection of Esparza’s defective indictment
claim. With respect to the second claim, Respondent argues it is without merit because Esparza

-17-

cannot show he was prejudiced by his decision to forego an unsworn statement in mitigation.
Respondent also argues this Court is foreclosed from reconsidering Esparza’s Brady
claim at this point in the litigation under the terms of the Sixth Circuit’s mandate. Specifically,
he maintains this Court should not re-open Esparza’s Brady claim in light of the fact that the
Sixth Circuit expressly considered and rejected this claim on the merits and the Supreme Court
denied Esparza’s Petition for Writ of Certiorari seeking relief on this claim. Accordingly,
Respondent argues Esparza’s Brady claim is not open for reconsideration and “any attempt to
disturb the Sixth Circuit’s Brady ruling would conflict with the mandate.” (ECF # 203 at 3).
The Court will discuss each of these arguments in turn.
1.

Esparza’s 1989 Post-Conviction Petition

As set forth above, Esparza argues this Court erred when it determined the state postconviction courts adjudicated his denial of continuance and IAC during mitigation claims on the
merits for purposes of § 2254(d). Citing Brown v. Smith, 551 F.3d 424 (6th Cir. 2008), Esparza
maintains the state appellate court’s consideration of these claims in connection with his 1989
Post-Conviction Petition failed to take into account “key evidence” that was attached to the
Petition and dehors the record. This “key evidence” includes (1) affidavits from fourteen
family members and/or friends asserting they were either not interviewed at all by defense
counsel or were interviewed but not asked to testify on Esparza’s behalf; (2) affidavits from
Peter Esparza, Virginia Gonzalez, and Ralph Grennay, asserting they testified during mitigation
but possessed additional information which they were not requested to include in their
testimony; and (3) an affidavit from psychologist Julia Hawgood which concluded that neither

-18-

defense counsel nor the jury had a “fully developed understanding” of Esparza.11 Having failed
to consider this critical evidence, Esparza argues the state appellate court could not have fully
adjudicated his claims on the merits for purposes of § 2254(d). In the absence of an
“adjudication on the merits,” Esparza asserts Pinholster does not apply and this Court should
have considered the evidence adduced during the August 1999 federal evidentiary hearing and
found defense counsel were ineffective for failing to conduct a thorough mitigation
investigation.
The Court finds this argument to be without merit. As an initial matter, the Court
disagrees with Esparza’s statement that the state courts failed to consider the evidence dehors
the record submitted in connection with his 1989 Post-Conviction Petition. In its Findings of
Fact and Conclusions of Law denying the 1989 Petition, the state trial court first concluded
Esparza was precluded under the doctrine of res judicata from raising his IAC claims to the
extent they did not resort to evidence dehors the record. However, the trial court further found
that “[t]o the extent that Mr. Esparza has produced evidence dehors the record, res judicata will
not be a proper basis for dismissing Mr. Esparza’s petition.” (ECF # 16 at Exh. Q, p. 5). It then
held as follows:
Although res judicata does not bar Mr. Esparza from raising some of his
ineffective assistance of counsel claims, the next issue is whether Mr.
Esparza has set forth evidentiary documents containing sufficient
operative facts to demonstrate the claims.
In State v. Jackson (1980), 64 Ohio St.2d 107, the Supreme Court of Ohio
held that: “In a petition for post-conviction relief, which asserts ineffective
assistance of counsel, the petitioner bears the initial burden to submit

11

For a more detailed description of the evidence submitted by Esparza during postconviction, see this Court’s July 12, 2012 Opinion & Order at 52-53.
-19-

evidentiary documents containing sufficient operative facts to demonstrate
the lack of competent counsel and that the defense was prejudiced by
counsel’s ineffectiveness.” Id. at syllabus. See also State v. Kapper,
(1983), 5 Ohio St.3d 36, 38-39; and State v. Pankey (1981), 68 Ohio St.2d
58.
The Jackson court further stated that: “Broad assertions without a further
demonstration of prejudice do not warrant a hearing for all post-conviction
petitions. General conclusory allegations to the effect that a defendant has
been denied effective assistance of counsel are inadequate as a matter of
law to impose an evidentiary hearing.” Id. at 111. (Citations omitted).
Here, Mr. Esparza’s general conclusory allegations are wholly inadequate
to require an evidentiary hearing. These allegations, although supported
by affidavit, are merely attacks on attorneys DeNune and Sparrow’s
strategy at trial and at the mitigation hearing. See Strickland v.
Washington (1984), 466 U.S. 668 (trial strategy is not a proper basis for a
claim based on ineffective assistance of counsel). Consequently, Mr.
Esparza has failed to demonstrate how trial counsel was incompetent or
how counsel’s alleged incompetence prejudiced his defense. Mr.
Esparza has not met his burden of submitting documentary evidence
containing sufficient operative facts to establish a claim of ineffective
assistance of counsel.
(ECF # 16 at Exh. Q, p. 5-6) (emphasis added).
On appeal, the state appellate court acknowledged Esparza’s evidence dehors the record,
expressly noting Esparza supported his claim with (1) “the affidavits of fourteen family
members and/or friends who asserted that they were either not interviewed at all by Esparza’s
trial counsel, or they were interviewed but were not asked to testify on defendant’s behalf” and
(2) “the affidavits of three witnesses who did testify at the penalty phase but who assert that
they possess additional information which they were not requested to include in their
testimony.” State v. Esparza, 1992 WL 113827 at *5 (Ohio App. 6th Dist. May 29, 1992). The
court then carefully reviewed all of the evidence presented during the mitigation phase of the
trial and concluded that “trial counsel’s failure to interview or call all potential mitigation

-20-

witnesses did not amount to ineffective assistance of counsel. Id. at * 6.
While the state appellate court did state Esparza’s IAC during mitigation claim could be
determined “without resort to evidence dehors the record,” it made this determination in the
context of concluding that the trial court “did not err in dismissing [Esparza’s IAC during
mitigation] claim without a hearing.” Id. at * 7. In other words, the state appellate court
concluded the trial court did not err in determining Esparza had failed to “set forth evidentiary
documents containing sufficient operative facts to demonstrate the claims.” Necessarily
implied in this statement (and as is evident from a review of the entirety of the post-conviction
state court decisions) is that both state trial and appellate courts reviewed and considered the
evidence dehors the record and determined it was insufficient to warrant either a hearing or
relief on Esparza’s IAC claims. This is not the same thing as failing to consider the evidence
dehors the record, as Esparza now suggests, nor is it an indication the state courts failed to
adjudicate Esparza’s IAC during mitigation claim on the merits in connection with his 1989
Post-Conviction Petition. To the contrary, the Court finds the state post-conviction courts
clearly considered Esparza’s evidence dehors the record and decided this evidence was
insufficient to warrant either an evidentiary hearing or relief on the merits when considered in
light of the evidence presented during the mitigation phase of the proceedings.
Moreover, even if the state appellate court did fail to consider this evidence in
connection with the 1989 Post-Conviction Petition, the Court finds Esparza’s reliance on Brown
v. Smith, 551 F.3d 424 (6th Cir. 2008) is misplaced. In Brown, the Sixth Circuit held the
“deferential standard of review” set out in § 2254(d) “applies only to a claim that has been
adjudicated on the merits in State court proceedings.” Brown, 551 F.3d at 428. The panel

-21-

concluded that “whenever new, substantial evidence supporting a habeas claim comes to light
during the proceedings in federal district court,” we must apply the “pre-AEDPA standard of
review: de novo for questions of law (including mixed questions of law and fact), and clear
error for questions of fact.” Id. at 429. In that case, the Court found Petitioner’s ineffective
assistance of counsel claim should be reviewed under the pre-AEDPA standard of review
because the state court did not have counseling records from the victim’s therapist which could
have provided additional grounds for impeaching the victim’s testimony. Noting Petitioner
was not at fault for failing to obtain the records during post-conviction proceedings, the court
found that “the absence of the counseling records before the [state court]. . . ., combined with
that court’s explicit statement that its review was ‘limited to mistakes apparent on the record,’
means that there is no relevant state court adjudication to which this court can defer.” Id. at
429-30. Applying the pre-AEDPA standard of review, the court concluded Petitioner had
demonstrated both deficient performance and prejudice and was, thus, denied effective
assistance of counsel.
As an initial matter, Brown is factually distinguishable from the instant case. Brown
dealt with evidence that was newly discovered during federal habeas proceedings and which
Petitioner could not be held responsible for failing to uncover during post-conviction. The
evidence at issue in the instant case, however, consists of material that Esparza did in fact
present to the state courts during post-conviction but which the state courts allegedly failed to
consider. Moreover, even if Brown might have some relevance to Esparza’s claim, the Sixth
Circuit has remarked “the Supreme Court’s recent decision in Cullen v. Pinholster, 131 S.Ct.
1388 (2011) raises serious questions about Brown’s continuing vitality.” McCoy v. Jones, 2012

-22-

WL 593117 at *3 (6th Cir. Feb. 24, 2012). While the Sixth Circuit has not yet fully considered
the effect of Pinholster on the Brown decision,12 it has indicated that there are “serious
questions” about whether Brown is consistent with Pinholster. See McCoy, 2012 WL 593117 at
* 3. See also Williams v. Lafler, 2012 WL 3326301 at * 3 (noting that “[t]he tension between
Brown and Pinholster is obvious” and Pinholster “raises some doubt as to whether Brown
remains good law”). Thus, even if Brown were applicable, this Court cannot say it was “clear
error” under Rule 59(e) to find that the state courts’ resolution of this claim in connection with
Esparza’s 1989 Post-Conviction Petition constituted an “adjudication on the merits.”
Accordingly, the Court finds this argument is without merit and does not justify
reconsideration of this Court’s July 12, 2012 Opinion & Order under Rule 59(e).
2.

Esparza’s 1991 Successor Post-Conviction Petition

Esparza next argues this Court misstated the procedural posture of his 1991 Successor
Post-Conviction Petition. In its July 12, 2012 Opinion & Order, this Court stated “Esparza’s
first and second petitions for post-conviction relief were both denied without an evidentiary
hearing.” (ECF # 194 at 3). Later in the Opinion, the Court further noted the following in a
footnote:
In November 1991, after receiving documents from the City of Toledo
pursuant to a public records request, Esparza filed a second petition for
post-conviction relief in the Lucas County Court of Common Pleas.

12

See Walsh v. Lafler, 2011 WL 5041418 at ** 4 (6th Cir. Oct. 25, 2011) (noting “[t]his
Circuit has not yet had occasion to consider the effect of Pinholster” on Brown but that it
need not reach this issue because even under the less deferential, pre-AEDPA standard,
Welsh had not presented grounds for habeas relief); Robinson v. Howes, 663 F.3d 819, 823
(6th Cir. 2011)(assuming, without deciding, that petitioner’s ineffective assistance claim was
subject to the less deferential, pre-AEPDA standard of review where the state court did not
have key records before it).
-23-

(ECF # 16 at Exh. V). As of the filing of the Petition and Return, the
state trial court had not yet ruled on Esparza’s successive petition.
However, in its Supplemental Brief filed August 29, 2011, Respondent
states the trial court denied this petition and that the state appellate court
affirmed. (ECF # 178 at 2).
(ECF # 194 at 55, fn. 17). In his Motion to Alter or Amend, Esparza maintains this is incorrect
and that, in fact, the state courts never ruled on his 1991 Successor Post-Conviction Petition.
Respondent now concedes, in his Response in Opposition, that he “misstated the posture of the
second post-conviction petition in his supplemental brief.” (ECF # 203 at 2).
Based on the state court filings attached to Esparza’s Motion to Expand the Record
(ECF # 200) and admitted to the habeas record supra, the procedural history surrounding the
1991 Successor Post-Conviction Petition appears to be as follows. In November 1989, Esparza
filed his first Post-Conviction Petition (i.e. the 1989 Post-Conviction Petition), raising fifty
claims for relief; including allegations of trial court error in denying his motion for continuance
and IAC during mitigation. (ECF # 191-1). Subsequently, on June 8, 1990, Esparza submitted
a public records request pursuant to Ohio’s Public Records Act, Ohio Rev. Code § 149.43, to
the Toledo Police Department seeking the following documents: (1) “records pertaining to and
relating to the investigation (including suspects other than Gregory Esparza) of the 1983
homicide of Melanie Gerschultz;” and (2) “records pertaining to and relating to the
investigation, arrest, detention, interrogation, prosecution, and the like, of Gregory Esparza.”
(ECF # 200-1 at 7). On June 19, 1990, the City of Toledo declined to produce the requested
documents, citing litigation pending in the Ohio Supreme Court arising from another, unrelated
denial of a public records request. (ECF # 200-1 at 10).
On October 10, 1990, the Ohio Supreme Court decided this unrelated litigation, holding

-24-

an inmate who has exhausted his direct appeals may employ the Ohio Public Records Act to
support his/her petition for post-conviction relief. See State ex rel. Clark v. City of Toledo, 54
Ohio St.3d 55 (1990).13 Shortly thereafter, on November 6, 1990, the City of Toledo notified
Esparza it had “compiled 118 documents (119 page sides)” and “[i]nformation has been
redacted only from 18 of these pages (Exhibits 1 - 15) pursuant to O.R.C. Sections
149.43(A)(2)(a), (b), (d) and (A)(4).” (ECF # 200-1 at 12). These 118 documents were
provided to counsel for Esparza on March 8, 1991. (ECF # 200-1 at 13).
Meanwhile, on June 18, 1990, the state trial court dismissed Esparza’s first postconviction Petition (i.e. his 1989 Post-Conviction Petition) without an evidentiary hearing. On
July 5, 1990, Esparza filed a Motion for Reconsideration, arguing (among other things) that his
Petition should not be dismissed in light of the fact that the City of Toledo had not yet
responded to his public records request. (ECF # 200-1 at 4). It is unclear whether this motion
was ever ruled upon, but the record is clear that Esparza appealed the denial of the 1989 PostConviction Petition. On May 13, 1991, after having received the 118 documents from the City
of Toledo, Esparza filed in the state appellate court a “Motion for Remand to the Trial Court,”
arguing that “[r]emand is necessary to permit Mr. Esparza to supplement his previously filed
post-conviction petition with evidence provided by the State of Ohio pursuant to Mr. Esparza’s
request for public records.” (ECF # 200-1 at 1). On June 8, 1991, the state appellate court
denied Esparza’s motion and instead suggested he file a successor post-conviction petition in
the Lucas County Court of Common Pleas. (ECF # 200-2 at 1-3). Esparza thereafter filed the

13

The Ohio Supreme Court later reversed itself on this issue in State ex rel. Steckman
v. Jackson, 70 Ohio St.3d 420 (1994).
-25-

1991 Successor Post-Conviction Petition in the state trial court on November 14, 1991. (ECF #
16 at Exh. V).
Esparza maintains, and Respondent appears to concede, that the 1991 Successor PostConviction Petition was never ruled on by either the state trial or appellate court. Because this
Petition contains several penalty phase claims, Esparza argues his denial of continuance and
IAC during mitigation claims were not “adjudicated on the merits” for purposes of § 2254(d).
Therefore, he argues, Pinholster is not applicable and these claims are subject to de novo
review. He further asserts that, because the proper review of these claims is de novo and allows
for consideration of the evidence adduced during the August 1999 federal evidentiary hearing,
this Court should (1) find that Judge O’Malley’s prior analysis of these claims in her October
2000 Opinion & Order constitutes “law of the case,” and (2) grant Esparza habeas relief. (ECF
# 201 at 12 - 14).
While Respondent acknowledges the state courts did not rule on Esparza’s 1991
Successor Post-Conviction Petition, he argues the vast majority of the IAC claims set forth in
that Petition were previously considered and rejected on the merits by the state courts in
connection with the 1989 Post-Conviction Petition. Moreover, he claims only two claims set
forth in that Petition were arguably not previously considered and these claims have no merit.
Accordingly, he asserts the failure of the state courts to rule on the 1991 Successor PostConviction Petition does not translate into a finding that Esparza’s denial of continuance and
IAC during mitigation claims were not adjudicated on the merits for purposes of § 2254(d).
Based on the above, the Court agrees with Esparza that it misstated the procedural
posture of his 1991 Successor Post-Conviction Petition, as it now appears the state courts have

-26-

not, in fact, ruled on that Petition in the over twenty years since it was filed. Accordingly, the
Court grants Esparza’s Motion to Alter or Amend to the extent it seeks clarification of the
procedural history and posture of his 1991 Successor Post-Conviction Petition.
However, the Court must still determine what impact, if any, this may have on its
resolution of Esparza’s denial of continuance and IAC during mitigation claims as set forth in
his federal habeas Petition. After careful review of the 1991 Successor Post-Conviction
Petition, the Court determines for the following reasons that its analysis of Esparza’s habeas
claims is not changed by the fact the state courts failed to rule on this post-conviction Petition.
Esparza correctly notes his 1991 Successor Post-Conviction Petition sets forth
constitutional claims based on (1) trial court error in denying his motion for continuance to
prepare for mitigation proceedings (“Claim 22"); and (2) IAC during mitigation (“Claim 27").
(ECF # 16 at Exh. V). However, in order to demonstrate his federal habeas claims were not
“adjudicated on the merits” for purposes of § 2254(d), Esparza must show that his denial of
continuance and IAC during mitigation claims as presented in the 1991 Successor PostConviction Petition (i.e. Claims 22 and 27) are different in some material respect from the
claims already considered and rejected by the state courts on direct appeal or in connection with
his 1989 Post-Conviction Petition.
Esparza fails to do so. While he makes passing reference to the fact that he raised these
claims via Claims 22 and 27 of his 1991 Successor Post-Conviction Petition, Esparza does not
discuss these claims, identify the manner in which they differ from the denial of continuance
and IAC claims previously adjudicated by the state courts, or explain how any of the exhibits
attached to his 1991 Successor Post-Conviction Petition support or in any way relate to either of

-27-

these claims. In fact, Esparza does not discuss these exhibits in any of the post-judgment
motions filed with this Court. Although he makes much of the fact that his 1991 Successor
Post-Conviction Petition was filed in response to the 118 documents newly obtained from his
public records request, Esparza does not explain to this Court (1) how any of these documents
are relevant to his denial of continuance or IAC during mitigation claims in the first instance, or
(2) in what respect these documents present information to the state court that it had not already
considered. Moreover, in his Reply Brief, Esparza does not address Respondent’s arguments
that the denial of continuance and IAC during mitigation claims presented in the 1991
Successor Post-Conviction Petition were already adjudicated by the state courts in connection
with the 1989 Post-Conviction Petition.
Upon its own review, this Court finds the claims and exhibits set forth in the 1991
Successor Post-Conviction Petition are not sufficiently different from Esparza’s previous postconviction Petition to support a finding that his federal denial of continuance and IAC during
mitigation claims were not “adjudicated on the merits” for purposes of § 2254(d). The majority
of the exhibits attached to the 1991 Successor Post-Conviction Petition consist of Toledo Police
Department records relating to the investigation of the murder of Melanie Gerschultz, including
witness statements, police reports, polygraph reports, regional crime lab reports, search warrant
affidavits, etc. See ECF # 16 at Exh. V (Exhibits 1- 69). Although some of these exhibits
contain references to Esparza’s drug use, troubled childhood, and dysfunctional family, the
Court notes this information was fully presented to the jury during mitigation via the testimony
of Esparza’s family members and the introduction of Joint Exhibit A (i.e. Esparza’s “Family
File”), the Presentence Investigation Report, and Esparza’s mental examination report. In the

-28-

absence of any argument from Esparza to the contrary, the Court finds none of these exhibits
contain relevant information that had not already been presented to and considered by the state
courts in connection with Esparza’s denial of continuance or IAC during mitigation claims.
The Court could identify only two exhibits which might possibly be considered relevant
to the claims at issue. The first is the Affidavit of William A. Seman, dated January 4, 1990.
(ECF # 16 at Exh. V (Exh. 70)).14 In his Affidavit, Dr. Seman avers that (1) he had only a brief
discussion with defense counsel prior to his mitigation testimony; (2) the procedures used to
examine Esparza “deviated from standard procedures” in a variety of respects; (3) “time
constraints” precluded him from conducting collateral interviews with family members or
significant others in Esparza’s life; and (4) he did not receive any direction or guidelines
regarding what to include in or exclude from his mental examination report from the court or
any of the attorneys in the case. (ECF # 16 at Exh. V (Exh. 70)).
The Court finds this Affidavit does not set forth any information that was not already
presented to and considered by the state courts in resolving Esparza’s IAC during mitigation
claims. As an initial matter, the Court notes Esparza submitted Dr. Seman’s affidavit to the
state trial court in connection with his Motion to Reconsider the denial of his 1989 PostConviction Petition. See ECF # 16 at Exh. V (Exh. 84).15 Thus, this Affidavit was presented to

14

At the time, Dr. Seman and Dr. Charlene Cassell were psychologists at the Court
Diagnostic & Treatment Center (“CDTC”) in Lucas County, Ohio. As set forth in this
Court’s July 12, 2012 Opinion & Order, Drs. Seman and Cassell examined Esparza,
prepared a mental examination report, and testified during mitigation regarding the results of
that examination. (ECF # 194 at 42-45).
15

In his state court motion for reconsideration, Esparza argues that “on November 17,
1989, counsel for Petitioner Esparza interviewed Dr. William A. Seman, who agreed to
provide counsel an affidavit to be used to support several of Petitioner’s post-conviction
-29-

the state trial court but was apparently deemed insufficient to warrant reconsideration of its
denial of Esparza’s 1989 Post-Conviction Petition.
Moreover, as set forth in detail in this Court’s July 2012 Opinion, defense counsel
carefully examined Dr. Seman (and Dr. Cassell) regarding the flaws in the mental examination
report. Specifically, counsel elicited testimony from Dr. Seman that, prior to Esparza’s case,
the CDTC had only been involved in two mental examinations conducted for purposes of
capital mitigation hearings. (Tr. Mit. Hrg. at 100). Counsel also elicited testimony from both
Drs. Seman and Cassell that, while a social worker is normally involved to obtain records and
speak with relevant family members in these types of review, they did not use a social worker in
conducting Esparza’s mental examination due to the “urgency of the referral.” (Tr. Mit. Hrg. at
101-2, 168-69). Both doctors further testified they did not have any discussions with members
of Esparza’s family or foster parents, and did not have access to psychological testing that may
have been conducted by many of the juvenile institutions where Esparza had been committed
over the years. (Tr. Mit. Hrg. at 106-7, 169). In light of the above, the Court finds the
information contained in Dr. Seman’s Affidavit is largely cumulative to his mitigation
testimony, which was already presented to and considered by the state courts in the context of
Esparza’s IAC during mitigation claim. See State v. Esparza, 39 Ohio St.3d 8, 10-11 (1988).
The second exhibit of arguable relevance to the instant motion is the Affidavit of
Gregory Esparza, which is dated October 29, 1991 and attached as Exh. 90 to the 1991

claims. On the date for filing the Petition, counsel had not yet received the expected
affidavit from Dr. Seman, so could not include it in the Petition. This Court could easily
review the evidence now pursuant to R.C. 2953.21(F) and/or Rule 60(b)(5) of the Ohio
Rules of Civil Procedure.” (ECF # 16 at Exh.V (Exh. 84)).
-30-

Successor Post-Conviction Petition. (ECF # 16 at Exh. V (Exh. 90)). In this Affidavit, Esparza
explains (1) there were no Hispanic persons on the jury in his case; and (2) he did not testify at
either phase of his trial but would have done so had he “more fully understood the importance
of [his] testimony” at the mitigation phase. (ECF # 16 at Exh. V (Exh. 90)). Esparza does not
explain what he would have said had he given an unsworn statement during mitigation.
The Court finds Esparza’s Affidavit is insufficient to demonstrate that the state courts
failed to adjudicate his IAC during mitigation claim on the merits. As an initial matter, Esparza
does not provide any explanation as to why counsel could not have obtained and submitted his
Affidavit in connection with the 1989 Post-Conviction Petition. Thus, it seems highly unlikely
the state courts would have considered it in a successive post-conviction petition. Moreover,
even if the state courts would have considered it, it is difficult to believe this Affidavit (which is
composed of only three short paragraphs) would have been remotely sufficient to demonstrate
either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668 (1984),
particularly given the fact Esparza fails to describe what he would have said had he given an
unsworn statement. Standing alone, the Court finds this Affidavit is clearly insufficient to
demonstrate that the state courts failed to adjudicate Esparza’s IAC during mitigation claims.16

16

The remaining exhibits to the 1991 Successor Post-Conviction Petition consist
primarily of state court filings, excerpts from the trial transcript, and documents relating to
Esparza’s public records request. See e.g. ECF # 16 at Exh. V., Exh. 71 (excerpt from trial
transcript); Exhs. 72-73 (state court discovery filings); Exhs. 74-77 (copies of sealed
envelopes which contained stenographic notes regarding trial proceedings); Exhs. 79-81
(letters relating to Esparza’s public records request); Exh. 82 (Petition for Writ of
Mandamus filed by Esparza in state appellate court regarding redacted documents provided
in response to public records request); Exh. 83 (Esparza’s Indictment); Exh. 84 (motion to
reconsider filed in state trial court regarding denial of 1989 Post-Conviction Petition); Exh.
85 (state appellate court ruling denying motion to remand to trial court); Exh. 89 (juror
forms); Exh. 92 (state trial court sentencing opinion); and Exh. 93 (state appellate court
-31-

Accordingly, and for all the reasons set forth above, the Court rejects Esparza’s
argument that this Court should alter or amend its judgment on the grounds the state courts
failed to rule on his 1991 Successor Post-Conviction Petition. Having so found, the Court
further finds it properly concluded Esparza’s denial of continuance and IAC during mitigation
claims were subject to review under § 2254(d) and the state courts’ decisions were, therefore,
entitled to AEDPA deference. The Court, thus, properly applied Pinholster to exclude from
consideration any evidence adduced during the August 1999 federal evidentiary hearing.
Esparza’s arguments to the contrary are without merit and denied.17
3.

Brady Claim

Finally, Esparza argues this Court should amend its July 12, 2012 Opinion & Order to
find his Brady claim is subject to de novo reconsideration on remand. He maintains that
“[w]hile the federal courts have reviewed both the Eighth Amendment improper capital
indictment claim and a Brady claim as it pertains to the aggravated murder conviction, the
courts have never determined what the outcome of the penalty phase would have been if the
State had indicted Mr. Esparza as the ‘principal offender’ of the murder, yet not suppressed

direct appeal opinion). As these documents are part of the state court record, the Court finds
that none of them support Esparza’s argument that the state courts failed to adjudicate his
denial of continuance and IAC during mitigation claims. The Court further notes that four
exhibits (i.e. Exhibits 48, 52, 88 and 91) are missing from the 1991 Successor PostConviction Petition as submitted to this Court in the Appendix. However, as Esparza does
not explain how any of these exhibits have any relevance to his denial of continuance or
IAC claims, the Court assumes they do not support the arguments presented in his Motion to
Alter or Amend.
17

In light of the above, the Court further finds that Esparza’s denial of continuance and
IAC during mitigation claims are not unexhausted by virtue of the fact that the state court
failed to rule on the 1991 Successor Post-Conviction Petition.
-32-

evidence that he was not actually the principal offender.” (ECF # 206 at 1). Specifically,
Esparza argues that, although the Sixth Circuit ruled on the Brady claim before it, it analyzed
that claim in the context of an aggravated murder charge not a capital murder charge, since it
had already found that the indictment lacked a capital specification and was unconstitutional.
Esparza notes the Sixth Circuit found the Brady evidence was exculpatory because it indicated
that “another individual may have been involved in the crime.” Esparza, 310 F.3d at 424. The
court concluded such evidence did not prejudice the outcome because “none of the suppressed
evidence tend[ed] to show that Esparza was uninvolved in the robbery and shooting; it merely
show[ed] that he may not have been the principal offender.” Id. While Esparza maintains the
Sixth Circuit never adjudicated the “capital aspects of the Brady claim,” he argues it found that
even under a harmless error standard “the problems with the indictment were material to the
outcome of the capital case and that relief would be warranted under that standard.” (ECF #
206 at 3).
Esparza then argues the Supreme Court also failed to review the “capital aspects” of his
Brady claim. Rather, Esparza maintains, the Supreme Court only considered “the correct
standard a court should use when confronted with a faulty jury instruction that omits ‘principal
offender’ language, when there is no evidence presented that another individual may have been
involved in the crime.” (ECF # 206 at 3). Esparza further argues:
Based on the evidence before the Ohio courts– that Mr. Esparza was the
only individual involved in the crime– the Supreme Court ruled that any
error in the indictment and jury instruction was harmless. [Esparza, 540
U.S. at] 19. (“There was no evidence presented that anyone other than
respondent was involved in the crime or present at the store”).
The Court did not consider the impact of the Brady evidence on the
absence of the death specification. In fact, in a footnote, the Court
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specifically discounted the Brady evidence from its analysis because it
was not relevant to the trial phase issue before it. It observed:
“The [Sixth Circuit] Court of Appeals noted evidence brought to light for
the first time in the habeas proceeding in the District Court that suggested
there might have been another participant in the crime, Joe Jasso. The
jury, however, was not presented with this evidence at trial, and thus it has
no bearing on the correctness of the Ohio Court of Appeals’ decision that
the State need not charge a defendant as a principal offender if the failure
to so charge is harmless error.”
Id. at 3. Thus, the Supreme Court never considered the impact of the
Brady evidence on the capital specification, jury instruction, or death
sentence because it had no bearing on its decision.
(ECF # 206 at 4).
Esparza now argues that “no Court, including this one, has ever addressed what the
outcome of the trial would have been if the State had indicted Mr. Esparza using the proper
‘principal offender’ death specification language but had not suppressed the evidence that Mr.
Esparza was not actually the principal offender.” (ECF # 206 at 6). He urges the Court to
“remedy this injustice” and grant Mr. Esparza habeas relief on his Brady claim.
Respondent argues the Court is foreclosed from reconsidering Esparza’s Brady claim
under the terms of the Sixth Circuit’s mandate. Specifically, he maintains this Court should not
re-open Esparza’s Brady claim because the Sixth Circuit expressly considered and rejected this
claim on the merits and the Supreme Court denied Esparza’s Petition for Writ of Certiorari
seeking relief on this claim. Accordingly, Respondent argues Esparza’s Brady claim is not
open for reconsideration and “any attempt to disturb the Sixth Circuit’s Brady ruling would
conflict with the mandate.” (ECF # 203 at 3).
Esparza argues Respondent’s reading of the mandate is overly restrictive. He argues the
remand order is a general remand and “[b]ecause the Supreme Court specifically refrained from
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reviewing the Brady evidence and, in fact, expressly stated in a footnote that it ‘express[ed] no
view whether habeas relief would be available to [Mr. Esparza] on other grounds,’ [citation
omitted], review of other avenues of relief is consistent with the Supreme Court’s opinion.”
(ECF # 206 at 7).
As an initial matter, the Court notes Esparza failed to raise this particular argument in
any of the supplemental briefing submitted to this Court post-remand. (ECF # 174, 179).
While he did maintain the Court should consider his Brady claim because it had not been
adjudicated on the merits by the state courts, he failed to raise any argument that the Supreme
Court’s decision on the defective indictment claim impacted the adjudication of his Brady claim
in the context of a capital (as opposed to aggravated) murder charge. In other words, Esparza
raises this particular argument for the first time in his Rule 59(e) motion. On this basis alone,
the Court finds reconsideration is not warranted since it is well-established that “Rule 59(e)
motions cannot be used to present new arguments that could have been raised prior to
judgment.” Howard, 533 F.3d at 475. See also Roger Miller Music, Inc., 477 F.3d at 395; Sault
Ste. Marie Tribe of Chippewa Indians, 146 F.3d at 374.
Even considering this argument, however, the Court finds that it is without merit. After
the Supreme Court reversed the Sixth Circuit and found the state courts’ were not objectively
unreasonable in holding the defects in the indictment to be “harmless error,” Esparza filed a
“Petition for Rehearing of Decision and Judgment” in the Supreme Court on November 28,
2003. Therein, Esparza expressly argued the Supreme Court had erred because it failed to take
into account the suppressed evidence (obtained through Esparza’s public records request)
indicating Esparza was not the “principal offender.” He described his efforts to obtain the

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suppressed evidence, as well as the procedural history and status of his 1991 Successor PostConviction Petition. Moreover, Esparza highlighted some of the exculpatory evidence
contained in this Brady material and discussed the importance of this evidence in the context of
the Supreme Court’s “faulty premise” that the defects in the indictment were “harmless”
because there was no evidence that he was not the principal offender. Based on the above,
Esparza argued as follows:
Uninformed of this powerful and unrefuted evidence that Esparza was not
alone and, more to the point, that he was not the killer of Melanie
Gerschultz, and unaware that he had presented much of this evidence to
the State courts, this Court reversed and remanded Esparza’s case to the
Sixth Circuit Court of Appeals. Instead, this court should vacate its
decision and deny certiorari.
In the alternative, this Court should remand this Case to the Sixth Circuit,
instructing that court to remand to the District Court for determinations
under AEDPA whether the State Court of Appeals’ decision “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)(2) and
whether the facts relied upon by that court are entitled to a presumption of
correctness or whether they were rebutted by clear and convincing
evidence. § 2254(e)(2).
(Petition for Rehearing at p. 8). The Supreme Court summarily denied Esparza’s Petition for
Rehearing on January 12, 2004. See Mitchell v. Esparza, 540 U.S. 1142 (Jan. 12, 2004).
Meanwhile, Esparza filed a “Motion to Recall Mandate” in the Sixth Circuit on
November 17, 2003, arguing “this Court should retain jurisdiction as Esparza won relief on
several other issues in the District Court and those issues still need to be addressed in this
Court.” (Motion to Recall Mandate at p. 1-2). While this would have been a logical time and
place to do so, Esparza did not ask the Sixth Circuit to recall the mandate for the additional
reason that it needed to address the alleged impact of the Supreme Court’s decision on the Sixth

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Circuit’s analysis of his Brady claim. The Sixth Circuit denied Esparza’s “Motion to Recall
Mandate” on December 17, 2003.
Based on the above, the Court finds it would not be appropriate to re-open Esparza’s
Brady claim at this time. Esparza expressly raised this issue with the Supreme Court and was
denied relief. He could have attempted to address this issue with the Sixth Circuit on remand,
but failed to do so. In light of the above, the Court will not now revive Esparza’s Brady claim,
nearly eight years after remand, and conduct a de novo review of the suppressed evidence
attached to the 1991 Successor Post-Conviction Petition.
Moreover, the Court rejects Esparza’s claim that “no Court, including this one, has ever
addressed what the outcome of the trial would have been if the State had indicted Mr. Esparza
using the proper ‘principal offender’ death specification language but had not suppressed the
evidence that Mr. Esparza was not actually the principal offender.” (ECF # 206 at 6). The
Court notes Esparza discussed the suppressed evidence, his public records request, and the
procedural history and status of his 1991 Successor Post-Conviction Petition in both his Petition
and Traverse. Indeed, in his Petition, Esparza maintains that “the documents that were released
[pursuant to his public records request] raised serious questions as to the reliability of the
evidence upon which his conviction and death sentence were based.” (ECF # 12 at p. iv.)
(emphasis added). Additionally, in his Traverse, Esparza cites extensively to the exhibits
attached to his 1991 Successor Post-Conviction Petition to support his Brady claim, arguing that
the suppressed evidence was material because it demonstrated he was not the principal offender.
(ECF # 33 at pp. 16-38) (citing Exhibits 1, 3, 5, 7, 8, 9, 15, 16, 20, 21, 25, 26, 29, 43, 45, 60, 61,
and 63 to the 1991 Successor Post-Conviction Petition).

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In her October 2000 Opinion & Order, Judge O’Malley expressly considered this
evidence and denied Esparza’s Brady claim as follows:
Esparza’s third ground for relief is that the prosecutor failed to provide
him with exculpatory evidence, in violation of his constitutional rights.
Specifically, Esparza alleges that the prosecutor failed to provide
evidence that: (1) would impeach the trial testimony of James Barailloux
and Lisa Esparza; (2) implicates other suspects in the Island Carryout
murder; (3) indicates Esparza was intoxicated during the time the
murder was committed and that he suffered from a mental disorder.
Although this claim was not raised on direct appeal, like Esparza’s
second claim for relief, it is not procedurally defaulted as it also is
premised on information that was not made available to Esparza until
after the conclusion of his direct appeals, pursuant to his [public records
request] litigation based on State ex rel. Clark v. City of Toledo, 560
N.E.2d 1313 (Ohio 1990). Accordingly, the Court will address this
claim on the merits, without the benefit of a state court decision.
To establish a claim under Brady v. Maryland, 373 U.S. 83 (1963), “the
petitioner has the burden of establishing that the prosecutor suppressed
evidence; that such evidence was favorable to the defense; and that the
suppressed evidence was material.” See Carter v. Bell, 218 F.3d 581,
2000 WL 895827 at * 19 (6th Cir. July 7, 2000) (citing Moore v. Illinois,
408 U.S. 786, 794-95 (1972)). “The inquiry is objective, independent of
the intent of the prosecutors.” Id. (citing Brady, 373 U.S. at 87).
“[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 676 (1985). * * *
***
It is here that Esparza’s first two sub-claims must fail. Were the Court
to extricate James Barailloux and Lisa Esparza’s testimony from the
totality of the evidence offered at trial, there nonetheless would be
ample evidence to provide the Court with confidence in the trial’s
outcome. Richardson’s testimony, for example, provided the jury with
Esparza’s confession of the killing. Furthermore, a jury reasonably
could have found that, although other suspects were investigated for
this homicide, Esparza was the actual assailant.
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(ECF # 132 at 43-45) (emphasis added). Judge O’Malley also noted “Esparza’s claims of
exculpatory evidence revealing that he was intoxicated on the evening of the Island Carryout
murder and his mental dysfunction fail because that information was not solely under the
State’s control.” Id. at 45.
There is no indication from the above language that Judge O’Malley considered the
Brady material in the context of an aggravated murder charge, as opposed to a capital murder
charge. To the contrary, Judge O’Malley specifically noted a reasonable jury could have found
that Esparza was the “actual assailant,” despite the suppressed evidence suggesting other
suspects were investigated for the homicide. (ECF # 132 at 45).
Thus, and for all the reasons set forth above, the Court rejects Esparza’s argument that
this Court should reconsider its July 12, 2012 Opinion & Order and grant him habeas relief on
his Brady claim.
IV.

Conclusion
Accordingly, Petitioner’s Motion to Expand the Record (ECF # 200) is granted.

Petitioner’s Motion to Alter or Amend Judgment and Supplemental Memorandum in Support
Thereof (ECF # 197, 201) are granted in part and denied in part as follows. The Court grants
Esparza’s Motion to Alter or Amend (ECF # 197) to the extent it requests the Court correct its
misstatement that Esparza’s 1991 Successor Post-Conviction Petition was denied by the state
courts without an evidentiary hearing. Accordingly, the Court amends its July 12, 2012
Memorandum of Opinion & Order to reflect that Esparza’s 1991 Successor Post-Conviction
Petition was, in fact, never adjudicated by the Ohio state courts.
In all other respects, however, Esparza’s Motion to Alter or Amend Judgment and

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Supplemental Memorandum in Support Thereof (ECF # 197, 201) are denied.
IT IS SO ORDERED.

S:/Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE

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