Hasan v. Ishee

Filing 132

MEMORANDUM OPINION ON THE IMPACT OF CULLEN V. PINHOLSTER. Signed by Magistrate Judge Michael R Merz on 6/7/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SIDDIQUE ABDULLAH HASAN,
fka Carlos Sanders
:
Petitioner,

Case No. 1:03-cv-288
:

Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsTODD ISHEE, Warden,
:
Respondent.

MEMORANDUM OPINION ON THE IMPACT OF CULLEN V. PINHOLSTER

This capital habeas corpus case is pending before Chief Judge Dlott on the Magistrate
Judge’s original Report and Recommendations (Doc. No. 81) and Supplemental Report and
Recommendations (Doc. No. 119). On April 4, 2011, the same day on which Petitioner filed his
Objections (Doc. No. 122) to the Supplemental Report and Recommendations, the United States
Supreme Court decided Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 179 L. Ed. 2d 557
(2011). In his Response to the Objections (Doc. No. 123), the Warden relied primarily on Cullen
and did not oppose Petitioner’s request to brief the impact of that decision, which has now been done
(Doc. Nos. 127, 128, 129). This Second Supplemental Report and Recommendations is filed solely
to address the impact of Cullen.
After considering the arguments of counsel, the Magistrate Judge concludes that Cullen does
not prohibit an evidentiary hearing on Petitioner’s actual innocence “gateway” argument for

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avoiding procedural default. As the Court is aware, the Magistrate Judge’s reading of the AEDPA
has been more consistent with Justice Sotomayor’s dissent (and Justice Alito’s concurrence in part
of that dissent) than with the majority opinion. That is, the Magistrate Judge has frequently held that
evidence added to the record in federal habeas could be considered in determining whether a state
court adjudication on the merits of a claim was contrary to or an unreasonable application of clearly
established Supreme Court precedent. The Magistrate Judge’s denial of an evidentiary hearing in
this case was solely on the bases set forth in the two Reports and Recommendations.
This Opinion should not be read or cited as agreeing in any other way with Petitioner’s
counsel’s analysis of Cullen.
June 7, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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