Carter v. Mitchell

Filing 182

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO STAY FEDERAL HABEAS PROCEEDINGS - The Magistrate Judge again respectfully recommends that Carter's Motion to Stay be denied. Given the Gonzalez decision and the uncertainty of the scope of Pinholster, however, the questions raised by the Motion to Stay should be included in the certificate of appealability in this case. Objections to R&R due by 7/8/2013. Signed by Magistrate Judge Michael R Merz on 6/19/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CEDRIC CARTER,
:
Petitioner,

Case No. 1:98-cv-853
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsBETTY MITCHELL, Warden,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION
TO STAY FEDERAL HABEAS PROCEEDINGS
This capital habeas corpus case is before the Court on Petitioner’s Motion to Stay Federal
Habeas Proceedings and Hold Them in Abeyance to Permit Petitioner to Return to State Court to
Exhaust Evidence Developed During Federal Habeas Proceedings (Doc. No. 165).

The

Magistrate Judge filed a Report recommending denial (Doc. No. 174), Petitioner filed Objections
(Doc. No. 176), the Warden has responded to those Objections (Doc. No. 179), and Judge Rose
has recommitted the matter to the Magistrate Judge for reconsideration in light of the Objections
(Doc. No. 178).
This Court entered final judgment denying Cedric Carter’s habeas corpus petition on
March 30, 2007 (Doc. No. 148). On appeal, the Sixth Circuit affirmed except as to the TwentyEighth and Twenty-Ninth Grounds for Relief. Carter v. Mitchell, 693 F.3d 555 (6th Cir. 2012).
The Sixth Circuit held that these two claims had been exhausted in the Ohio courts and not
procedurally defaulted “insofar as they relate to the preparation of Carter's mitigation expert and

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the failure of Carter's mother to testify at his mitigation proceedings.” Carter, 693 F.3d at 569.
Having found that those two claims were not procedurally defaulted, the court remanded for a
decision on the merits of those claims as they were construed by the Court of Appeals. This
Court has now decided those two claims on the merits and the case is again ripe for appeal to the
Sixth Circuit (Entry and Order, Doc. No. 181).
After the Magistrate Judge filed a Report recommending denial of the remanded issues
on the merits, Carter filed the instant Motion for Stay (Doc. No. 165), seeking to return to the
Ohio courts to present evidence on claims of ineffective assistance of trial counsel which has
never been presented to those courts. The Magistrate Judge recommended denying that Motion
because (1) federal habeas law does not provide for a stay to allow state courts to consider
evidence never presented to them (“unexhausted evidence”), but only for unexhausted claims
and only then pre-judgment; (2) a stay for this purpose would exceed the scope of the mandate
(Report and Recommendations, Doc. No. 174).

Unexhausted Facts versus Unexhausted Claims

Carter first objects that “there is no reason to distinguish between an exhausted claim and
newly discovered evidence in support of the previously exhausted claim when deciding whether
to grant a stay.” (Objections, Doc. No. 176, PageID 680). This statement ignores the principal
point made in the Report: to allow a stay to litigate new evidence in mitigation would virtually
destroy finality in capital habeas corpus litigation (Report, Doc. No. 174, PageID 665).
Petitioner relies first on Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011), cert. denied sub
nom. Chappell v. Gonzalez, 133 S. Ct. 155, 184 L. Ed. 2d 234 (2012). There the Ninth Circuit

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remanded with instructions to stay “until Gonzales has had an opportunity to present this new
evidence to the California Supreme Court.” 667 F.3d at 999. Judge Fletcher, however, would
have held Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), inapplicable and decided
Gonazles’ unexhausted Brady claim on appeal without remand.

Id.

Judge O’Scannlain

dissented, believing the majority’s disposition directly conflicted with Pinholster. Id. at 1017.
In Gonzalez, the petitioner had exhausted one Brady claim about nondisclosure of the
informant’s criminal history, but had never been able to exhaust another Brady claim about
undisclosed documents on the informant’s mental state and credibility because these were only
discovered in federal habeas. A hypothetical Brady claim was the focus of Justice Sotomayor’s
dissent in Pinholster.
Gonzalez is obviously not controlling law in the Sixth Circuit. Nor, given the fractured
opinion on the critical issue, is it persuasive. Finally, Gonzalez is about a Brady claim which
was never presented to or exhausted in the state courts, albeit that claim was also supported by
new evidence. In this case we are dealing with claims which were exhausted and have been
found to have been exhausted by the Sixth Circuit.
Carter points to no authority besides Gonzalez for allowing a stay post-judgment. In
Cook v. Anderson, 2011 U.S. Dist. LEXIS 148541 (S.D. Ohio 2011), Judge Watson permitted a
pre-judgment stay “to exhaust claims relating to the new evidence.” Id. at *9 (emphasis added).
Importantly, the State agreed with that approach. In Conway v. Houk, Case No. 3:07-cv-345
(S.D. Ohio Sept. 6, 2011)(unreported1), the undersigned also granted a pre-judgment stay to
permit exhaustion of claims in a new Ohio post-conviction proceeding. In both of these cases,

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Under the EGovernment Act, this decision should have been reported when filed. Presumably the failure to do so
was caused by a failure to designate it as a written opinion by the docketing deputy clerk. As of the date of this
Report, it has been redesignated as a written opinion and presumably will be reported shortly in both the Lexis and
Westlaw databases.

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the requests were to exhaust claims, not new evidence on already exhausted claims, and they
were made pre-judgment. Carter argues these distinctions mean little because the burden is on
the petitioner to prove exhaustion (Objections, Doc. No. 176, PageID 688). That of course
ignores the effect of allocating that burden. In a non-capital case, where the petitioner wants the
case resolved as promptly as possible, the State has an interest in insisting on exhaustion. In a
capital case, where the petitioner’s interest is in prolonging the proceedings, the State’s interest
in finality is substantially greater. As noted in the first Report on this Motion, the variety of
relevant mitigating evidence in a capital case is, under the ABA Guidelines and the case law,
enormous.

It is easy to imagine repeated post-conviction discoveries of “new” mitigating

evidence and the construction of arguments about why it was ineffective assistance of trial
counsel to fail to discover it before. To permit stays, perhaps on a repeated basis, pending
exhaustion of new evidence would turn the exhaustion doctrine into a mechanism for indefinite
delay of finality.

Scope of the Mandate

The Magistrate Judge also recommended denial because a stay for new state court
proceedings would exceed the scope of the Sixth Circuit’s mandate. Carter objects “[t]he
question as to whether the case should be stayed pending exhaustion of evidence discovered in
habeas proceedings was not before the Sixth Circuit.” (Objections, Doc. No. 176, PageID 688.)
That is precisely the point: the Sixth Circuit has not decided whether this or any case can be
stayed pending exhaustion of new evidence. In fact, Carter’s situation is quite parallel to that of
Gonzalez. There the Ninth Circuit was confronted with new evidence which at least two judges

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believed the habeas courts could not consider because of Pinholster.

The Ninth Circuit

remanded with instructions to stay pending exhaustion. The Sixth Circuit remanded this case
with instructions to decide the merits of Grounds for Relief Twenty-Eight and Twenty-Nine on
the evidence already before this Court, which we have now done. If the Sixth Circuit accepts the
reasoning of Gonzalez, it will be free to enter a similar order when this case is again before it.
Carter objects that the Sixth Circuit “did not place any limit on the scope of evidence to
be considered by the District Court” (Doc. No. 176, PageID 688). However, the circuit court
certainly recognized the limit placed both on it and on this Court by Pinholster. Recognizing
that limit, it did not even suggest as a possibility that this Court might reopen the judgment and
stay the case pending an attempted return to state court.

Conclusion

Based on the foregoing analysis, the Magistrate Judge again respectfully recommends
that Carter’s Motion to Stay be denied. Given the Gonzalez decision and the uncertainty of the
scope of Pinholster, however, the questions raised by the Motion to Stay should be included in
the certificate of appealability in this case.
June 19, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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