Trimble v. Bobby

Filing 36

Opinion and Order signed by Judge James S. Gwin on 4/19/11 denying petitioner's motion for reconsideration. (Related Doc. 31 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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JAMES TRIMBLE,
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Petitioner,
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vs.
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DAVID BOBBY, Warden
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Respondent.
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CASE NO. 5:10-CV-00149

OPINION & ORDER
[Resolving Doc. No. 31]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this habeas corpus case, Petitioner James Trimble files a motion to reconsider the Court’s
earlier ruling denying his request for an order of conveyance. [Doc. 24; Doc. 30; Doc. 31.] The
motion is opposed. [Doc. 32.] The Petitioner replied. [Doc. 34.]
In the underlying motion, Petitioner Trimble requested an order directing the Warden of Ohio
State Penitentiary to transport Petitioner Trimble to the Ohio State University Medical Center,
Department of Radiology, for a Positron Emission Tomography Scan (PET Scan), citing both 18
U.S.C. § 3599 and 28 U.S.C. § 1651 (the All Writs Act). [Doc. 24.] The Petitioner hopes to use
this PET scan to support his claim of ineffective assistance of counsel in the sentencing phase of the
underlying state action. [Id.] The Court denied the request, holding that under Baze v. Parker that
did not possess jurisdiction to order the state to convey him for testing. 632 F.3d 338 (6th Cir.
2011); Trimble v. Bobby, 2011 WL 900997 (N.D. Ohio, Mar. 14, 2011). The Petitioner now says
that the Court misapplied Baze v. Parker and requests that the Court correct its earlier order. [Doc.

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Gwin, J.
31 at 5.]
Under Federal Rule of Civil Procedure 59(e), a Court may amend an earlier order: “(1) to
correct a clear error of law; (2) to account for newly discovered evidence or an intervening change
in controlling law; or (3) to otherwise prevent manifest injustice.” CGH Transp. Inc. v. Quebecor
World Inc., 261 F. App’x 817, 923 (6th Cir. 2008). The Petitioner acknowledges that Baze is the
controlling case and attempts to factually distinguish the current suit. The Petitioner says that Baze’s
rule is not applicable because Baze “confronted the issue of a habeas petitioner whose federal habeas
appeals had concluded and who sought an order from the district court [ ] compel[ing] state officials
to cooperate with this state clemency investigation.” [Doc. 31 at 5.] The Petitioner states that the
current suit is fundamentally different because the motion was filed as part of an ongoing federal
habeas petition and falls into the “hypothetical the district court and the Sixth Circuit proffered [in
Baze] as a scenario where a habeas court has the power to provide an order compelling a state
official’s cooperation.” [Id. at 6-7.] Petitioner now, for the first time, argues that the Court
possesses jurisdiction to issue an order of conveyance under 28 U.S.C. § 2254. [Id. at 7.]
The Court is not persuaded by this argument and reaffirms its holding that the Court lacks
jurisdiction. The Sixth Circuit’s decision in Baze is directly on point. In that decision, the court held
that a district court lacks proper jurisdiction under either 18 U.S.C. § 3599 or 28 U.S.C. § 1651 to
issue an order of conveyance and also stated that the decision in Nields, in which a district court
granted a nearly identical request, was incorrectly decided. See Baze, 632 F.3d at 343; Nields v.
Bradshaw, 2010 WL 148076 (S.D. Ohio, Jan. 11, 2010). The Sixth Circuit wrote that “Nields was
wrongly decided and that the district court in this case [Baze] correctly concluded that 3599(f)
provides a federal court with no jurisdiction to issue any order beyond the authorization of funds.”
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Gwin, J.
Baze, 632 F.3d 338, 345 (6th Cir. 2011).
As a means of side-stepping this holding, the Petitioner points to a footnote in Baze. This
footnote states that “Section 3599 applies to other proceedings as well, such as federal capital trials
and federal habeas proceedings . . . [and] [a]lthough federal courts in such cases may have oversight
powers similar to those Baze seeks here, those powers are exercised pursuant to other sources of
authority, not section 3599. See 28 U.S.C. § 2254(e)(2) (conditions for conducting an evidentiary
hearing in a habeas proceeding).” Baze, 632 F.3d at 342 n.3. The Petitioner says that since the
Court’s jurisdiction over this action stems from 28 U.S.C. § 2254, rather than the other statutes
considered by the Court, that the Court possesses the authority to order compliance with his request
for a PET scan.
This argument ignores the separate – and stringent – limitations under 28 U.S.C. § 2554
before additional discovery or an evidentiary hearing may be conducted. Indeed, as the Sixth Circuit
even notes in Baze – in the very footnote upon which the Petitioner entirely rests his argument – the
Petitioner must also comport with the requirements of 28 U.S.C. § 2554 before additional discovery
may be conducted. Baze, 632 F.3d at 342 n 3. In a recent death penalty case, Cullen v. Pinholster,
the Supreme Court addressed whether outside evidence obtained at an evidentiary hearing can be
considered in determining if habeas relief is warranted under 28 U.S.C. § 2254(d)(1); 131 S. Ct.
1388. In Pinholster, the petitioner argued that his penalty phase attorney was ineffective because
that attorney failed to introduce mitigating evidence of mental disorders. Pinhoslter, 131 S. Ct. at
1396. In denying the petition, the Supreme Court held that a federal court’s review of a state court
decision under 28 U.S.C. § 2254(d)(1) is strictly limited to “review of the state-court record,” and
that evidence acquired through use of an evidentiary hearing may not be considered. Id. at 1399.
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Gwin, J.
The Supreme Court further stated that Section 2254(e)(2) only “continues to have force where
Section 2254(d)(1) does not bar federal habeas relief.” Id. at 1401. The Supreme Court explained
this holding, stating that Section 2254(d) only governs claims that were adjudicated on the merits
in state court, whereas Section 2254(e)(2)’s limit on habeas discovery “restricts the discretion of
federal habeas courts to consider new evidence when deciding claims that were not adjudicated on
the merits in state court.” Id. Pinholster indicates that the Court cannot now consider the contents
of outside discovery in determining if the decision of the state court was an “unreasonable
application of [ ] clearly established federal law, ” so long as the state court ruling was made on the
merits. 28 U.S.C. § 2254(d)(1).1/
Based upon the record submitted, the Court finds that Petitioner Trimble’s claim of
ineffective assistance of counsel was litigated on the merits, and thus holds that the Pinholster’s
prohibition on outside evidence applies here.

Indeed, the argument made by Trimble for

consideration of outside evidence as part of his Petition is actually quite similar to the argument that
was made, and rejected by the Supreme Court, in Pinholster. In that case, the petitioner was
convicted of murder; during his state collateral attacks, he introduced the testimony of a psychiatrist
who testified regarding possible mental disorders as potential mitigating factors. Pinholster, 131 S.
Ct. at 1396. As part of his federal habeas petition, the federal district court allowed the testimony
of several additional medical experts to be admitted; these experts diagnosed the petitioner with
several additional mental disorders. Id. at 1397. The Ninth Circuit Court of Appeals affirmed this

1/

The plain language of 28 U.S.C. § 2254(d)(2) also limits the Court’s review to of “the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2); Pinholster, 131 S. Ct. at 1400 n. 7. Thus, under both Section
of 2254(d), the Court may not consider outside evidence unless the petitioner did not already litigate the issue on the
merits.

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Gwin, J.
ruling. Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009). The Supreme Court, however, reversed
the lower court and found that the petitioner in Pinholster had an opportunity to adjudicate his claim
of ineffective assistance of counsel on the merits in state court, and thus, could not expand the record
using Section 2254(e). Pinholster, 131 S. Ct. at 1401.
In this case, two psychologists testified regarding Petitioner Trimble’s substance abuse, the
effects of such abuse, and his other mental disorders during the penalty phase of his criminal trial.
State v. Trimble, 911 N.E.2d 242, 279-285 (Ohio 2009). The PET scan, which Trimble hopes to use
as additional evidence of the effects of methamphetamine use, was not originally offered as evidence
during the penalty phase. [Doc. 29 at 4.] Petitioner Trimble presented his request for a PET scan to
the state trial court in his state collateral attack; the court denied the request after a consideration of
Trimble arguments regarding test’s necessity. [Appendix, Vol. 1, pp. 3454-3465.] Similarly, the
state court denied his state collateral attack, finding that none of the experts who testified at during
the sentencing phase requested a PET scan and that those experts were otherwise able to testify
sufficiently regarding Trimble’s mental conditions and drug addictions. [Appendix, Vol. 1, pp.
3475-76.] Finally, the Eleventh Appellate District reviewed this holding, also finding that Trimble
offered almost no evidence indicating that the results of a PET scan would have affected the jury’s
sentencing decision. State v. Trimble, 2008 WL 5147441, at *10 (Ohio Ct. App., Dec. 5, 2008).
Thus, based on this record, Trimble had an opportunity to litigate his ineffective assistance of
counsel claim on the merits in state court. Therefore, in the current habeas petition, the Court will
consider whether state court’s ruling on the ineffective assistance of counsel claim “was contrary to,
or involved an unreasonable application of clearly established Federal law”; however, as this claim
was already litigated on the merits in state court, the Court finds that Supreme Court precedent limits
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Case No. 5:10-CV-00149
Gwin, J.
Trimble’s ability to expand the record to include a PET scan.2/
Accordingly, the Court DENIES the Petitioner’s motion for reconsideration. Under Baze,
the Court does not possess proper jurisdiction to grant the motion to convey; moreover, even if the
Court does possess proper jurisdiction under 28 U.S.C. § 2254, the Court finds that Petitioner has
failed to show that such discovery is permissible.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: April 19, 2011

2/

The Supreme Court noted in Pinholster that “[a]lthough state prisoners may sometimes submit new evidence
in federal court, AEDPA’s statutory scheme is designed to strongly discourage them from doing so. Provisions like §§
2254(d)(1) and (e)(2) ensure that federal courts sitting in habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state proceedings.” Pinholster, 131 S.Ct. at 1401 (internal
quotation omitted).

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