Carter v. Bradshaw

Filing 235

Memorandum of Opinion and Order For the reasons set forth herein, this Court denies Petitioner's Motion to alter or amend its judgment (ECF No. 233 ) dismissing his petition for writ of habeas corpus. Judge Benita Y. Pearson on 4/8/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SEAN CARTER,
Petitioner,
v.
MARGARET BRADSHAW,
Respondent.

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CASE NO. 3:02CV00524

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 233]

Before the Court is Petitioner Sean Carter’s motion to alter or amend this Court’s
judgment dismissing his amended petition for writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2254. ECF No. 233. Respondent Warden Norm Robinson (“the State”) opposes the motion.1
ECF No. 234. For the reasons that follow, Carter’s motion to alter or amend (ECF No. 233) is
denied.
I. Relevant Background
On March 19, 2002, Carter initiated these habeas corpus proceedings, challenging the
constitutionality of his convictions and death sentence, rendered by an Ohio court, for the
aggravated murder and rape of his adoptive grandmother, Veader Prince. See ECF No. 1. This
Court denied Carter’s amended petition for writ of habeas corpus on September 30, 2015. ECF

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From the parties’ filings, it appears that Norm Robinson, not Margaret
Bradshaw, is the current Warden. For consistency, the Court maintains the Respondent
originally named, Margaret Bradshaw.

(3:02CV00524)

No. 231. Carter now moves the Court to alter or amend its judgment pursuant to Fed. R. Civ. P.
59(e). He contests the Court’s denial of his claim, raised in the second ground for relief, that his
trial counsel were ineffective for failing to obtain “readily available evidence of Carter’s organic
brain impairment.” ECF No. 233 at PageID #: 2194.
II. Standard of Review
Federal Civil Rule 59(e) authorizes motions to alter, amend, or vacate a prior judgment.
Fed. R. Civ. P. 59(e); Huff v. Metro. Life Insur. Co., 675 F.2d 119, 122 (6th Cir. 1982). Such
motions may be granted “if there is a clear error of law, newly discovered evidence, an
intervening change in controlling law, or to prevent manifest injustice.” GenCorp, Inc. v. Am.
Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). This “‘allow[s] 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 343, 348 (6th Cir. 1988)).
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. Relief under Rule 59(e), however, “is an extraordinary remedy and
should be granted sparingly because of the interests in finality and conservation of scarce judicial
resources.” U.S. ex rel. Am. Textile Mfrs. Inst. Inc. v. The Limited, Inc., 179 F.R.D. 541, 547
(S.D. Ohio 1998); see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (noting that the
“extraordinary circumstances” justifying the reopening of a final judgment “will rarely occur in
the habeas context”). “Rule 59(e) motions cannot be used to present new arguments that could
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have been raised prior to judgment.” Howard, 533 F.3d at 475; see also Sault Ste. Marie Tribe
of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1988). The Rule “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).
III. Analysis
Carter argues that the Court committed clear error of law in denying his claim that his
trial counsel were ineffective for failing to obtain neurological testing to detect organic brain
injury, specifically, an MRI. ECF No. 233 at PageID #: 2194. The Court concluded,
Given Dr. King’s express opinion that an MRI would not have advanced
Carter’s case for mitigation, it is possible that Carter’s trial counsel decided that,
for sound strategic reasons, the risk posed by an MRI was greater than its potential
benefits: an MRI may have shown that Carter had no brain defect at all and
actually weakened Carter’s position. See Morris v. Carpenter, Nos.
11-6322/6323, 2015 WL 5573671, at *15 (6th Cir. Sept. 23, 2015) (“Attorneys
are entitled to rely on the opinions and conclusions of mental-health experts.”)
(citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 758 (6th Cir.
2013); Black v. Bell, 664 F.3d 81, 104-05 (6th Cir. 2011)). Furthermore, the
speculative nature of this claim precludes a showing of prejudice; without
knowing the results of an MRI test, Carter cannot demonstrate that his counsel’s
decision to forgo the testing affected the outcome of the jury’s sentencing.
ECF No. 231 at PageID #: 2151-52.
Carter first contends that the Court’s decision is “erroneous” because it relies on a
“mistaken interpretation of Dr. King’s testimony.” ECF No. 233 at PageID #: 2194. Carter
argues that Dr. King was not hired for purposes of mitigation and “never testified about the
mitigation available to Carter.” Id. at PageID #: 2194-95. He further asserts that the record did
not support the Court’s “speculation” that, given Dr. King’s position regarding the evidentiary
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value of an MRI, counsel may have decided not to pursue the testing for strategic reasons. Id. at
PageID #: 2197. To support this contention, Carter asserts that his counsel were aware of
evidence of organic brain impairment, such as an injury caused at birth and seizures. ECF No.
233 at PageID #: 2198.
The Court finds no error in its analysis or conclusion. As the Court explained, the U.S.
Supreme Court has advised habeas courts reviewing ineffective-assistance claims to “begin with
the premise that ‘under the circumstances, the challenged action[s] might be considered sound
trial strategy.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1404 (2011) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). Indeed, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .”
Strickland, 466 U.S. at 690. The Supreme Court repeatedly has held that counsel is not
ineffective for deciding to offer little or no mitigating evidence when that decision is based on
sound professional judgment. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002); Strickland, 466
U.S. at 699-700; Burger v. Kemp, 483 U.S. 776, 793-75 (1987); Darden v. Wainwright, 477 U.S.
168, 184 (1986).
Moreover, habeas courts may infer from the record a trial attorney’s strategic basis for a
challenged decision. The Supreme Court has explained,
Although courts may not indulge “post hoc rationalization” for counsel’s
decisionmaking that contradicts the available evidence of counsel’s actions, . . .
neither may they insist counsel confirm every aspect of the strategic basis for his
or her actions. There is a “strong presumption” that counsel’s attention to certain
issues to the exclusion of others reflects trial tactics rather than “sheer neglect.”

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Harrington v. Richter, 562 U.S. 86, 109 (2011) (citations omitted).
Applying these standards, it is reasonable to infer from the record that defense counsel’s
decision to forgo MRI testing for mitigation purposes was sound trial strategy. At the conclusion
of the first competency hearing, the trial judge announced his ruling that Carter was competent to
stand trial. He stated he did not “even think there [was] any question about it as far as that issue
goes.” Trial Tr. vol. I at 100. He then denied defense counsel’s request for funding for a second
expert and an MRI “on the issue of competence.” Id. at 100-01. The judge stated, however, that
he would reconsider the MRI request if counsel had “some other reason later on in this case” and
could “present evidence of a particularized need.” Id. at 101 (emphasis added).
At the second competency hearing, defense counsel asked Dr. King if MRI testing “would
be advisable.” Trial Tr. vol. VI at 564-65. Dr. King replied, “Yes. I think it would be
comprehensive to do such [a] test, yes.” Id. at 565. The judge then interjected, “Do you need
that for any of your opinions, doctor?” Dr. King answered, “No.” Id. (emphasis added). The
judge pressed Dr. King on the MRI issue, indicating a concern about the potential need for MRI
testing for mitigation as well as competency issues. The judge told Dr. King he “would be glad
to order [an MRI] if it would be helpful in some area, but if it’s not going to be. You don’t need
it for your opinions, correct?” Dr. King replied, “No. No, I don’t.” Id. (emphasis added). The
judge then asked him why he had said it would be “necessary for this case,” and Dr. King
explained that “Mr. Consoldane I think is implying that it would be helpful. I don’t think he said
it was necessary . . . .” Id. The judge pointedly ended the colloquy with this question: “But in

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your opinion an MRI would not assist us in this case to render any psychological opinions
involving either sanity or competency or mental defect?” Dr. King again replied, “No.” Id. at
566 (emphasis added). As Carter concedes, the term “mental defect” mirrors Ohio’s statutory
mitigating factor of “mental disease or defect.” ECF No. 233 at PageID #: 2196 (citing Ohio
Rev. Code § 2929.04(B)(3)).
Carter points out that trial counsel then elicited from Dr. King that an MRI would “be
able to determine whether or not there was organic brain damage.” Trial Tr. vol. VI at 566. But
when counsel followed up on this question, Dr. King equivocated. Counsel asked him, “[I]f
[Carter] had an organic brain disorder, which there is some possible indications due to the birth
and with having seizures and that sort of thing, . . . would [an MRI] be able to tell us for sure
whether he had an organic brain problem or whether this is all of a different nature?” Dr. King
responded, “Maybe I can say what I would recommend for this man.” Id. at 567. He went on to
emphasize Carter’s psychotic disorder, without mentioning organic brain injury at all. He
testified,
I would recommend that this man be hospitalized and have a very
comprehensive psychiatric evaluation because in my opinion this man suffers
from some mental illness. In my opinion I gave him a diagnosis of psychotic
disorder not otherwise specified because the symptoms at this point are somewhat
subtle, not crystal clearly defined, except for the paranoia and the inappropriate
hostility that he has. So I think with more careful observation and assessment his
psychiatric condition could become more clear, and possibly some diagnostic tests
like an MRI would be helpful.
But my concern is that this man does suffer from a psychotic disorder . . . .
Id. at 567-68 (emphasis added).
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At a later pretrial hearing, the judge again inquired about the defense’s request for funds
for an MRI, this time specifically referencing mitigation. He stated,
The Court is mindful of the fact that mental defect and/or, just on a general
basis as a mitigating factor, a mental condition could become important in this
case should this case go to a second phase. That being the case, and your expert
saying he would like to see that, Dr. King, I will now allow you to do that. . . . Do
you wish to have that done?
Trial Tr. vol. VII at 870. Attorney Consoldone replied that he “wanted that done for the
competency [hearing],” but that he would decline the court's offer of funding for an MRI for
mitigation purposes “unless we can find some other organic evidence that would substantiate
that.” Id.
Thus, even though Dr. King testified that an MRI is able to detect organic brain injury,
his testimony reveals that he did not strongly advocate its use to show Carter had such an
impairment, including for mitigation purposes. Dr. King opined only that an MRI “possibly”
would be “helpful” in providing a more “comprehensive” picture of Carter’s psychiatric
condition; he explicitly dodged counsel’s invitation to state definitively that an MRI would detect
a brain injury if Carter had one, and expressly testified that it would not assist him in forming an
opinion about Carter’s sanity, competency, or potentially mitigating “mental defect.” Based on
this testimony, it is apparent that counsel did not decline the trial court’s repeated offers of
funding for an MRI due to incompetence or “sheer neglect.” Harrington, 562 U.S. at 109.
Rather, relying on Dr. King’s opinion, counsel reasonably may have believed they did not have
(1) sufficient evidence upon which to base a request for MRI funding or (2) sufficient reason to

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believe the MRI results would have been a benefit rather than a detriment to the defense. This
Court made no error of law in concluding, therefore, that trial counsel’s decision to forgo MRI
testing for mitigation reflected sound trial strategy, and the Ohio appellate court’s decision that
counsel’s performance in this regard was not constitutionally deficient neither contravened nor
misapplied Strickland and its progeny.
Carter’s second ground for challenging the Court’s decision on his MRI-related
ineffective-assistance claim is that the Court improperly “refused to consider” evidence he
obtained during discovery in these habeas proceedings that satisfies Strickland’s prejudice prong.
ECF No. 233 at PageID #: 2199-2203. Carter argues that Ohio’s post-conviction review system
denied him his due process right to develop this claim in state court, rendering the Ohio appellate
court’s decision that he submitted insufficient evidence to prevail an unreasonable determination
of the facts under § 2254(d)(2). ECF No. 233 at PageID #: 2202-03. This argument also fails.
Carter raised his competency ineffective-assistance claims in state courts, which
adjudicated them on the merits. See ECF No. 231 at PageID #: 2117. This Court was precluded,
therefore, under Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), from considering any
evidence in support of those claims that was not presented to the state courts. See id. at PageID
#: 2150, n.13. Indeed, the Supreme Court, in its review of Carter’s right to competence during
habeas proceedings, expressly ruled that the claims were adjudicated on the merits in state courts
and “[a]ny extrarecord evidence that Carter might have concerning these claims would therefore

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be inadmissible.” Ryan v. Gonzales, 133 S. Ct. 696, 709 (2013) (citing Pinholster, 131 S. Ct. at
1398); see also ECF No. 231 at PageID #: 2103.
IV. Conclusion
For the foregoing reasons, this Court denies Carter’s motion to alter or amend its
judgment (ECF No. 233) dismissing his petition for writ of habeas corpus.

IT IS SO ORDERED.

April 8, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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