Hasan v. Ishee

Filing 135

ORDER SETTING ORAL ARGUMENT HEARING ( Evidentiary Hearing set for 10/20/2011 10:00 AM in Courtroom 7 - Cincinnati before Chief Judge Susan J. Dlott.). Signed by Chief Judge Susan J. Dlott. (wam1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SIDDIQUE ABDULLAH HASAN,
fka CARLOS SANDERS,
Petitioner,
v.
TODD ISHEE, WARDEN,
Respondent.

:
:
:
:
:
:
:
:
:

Case No. 1:03-cv-288

Chief Judge Susan J. Dlott

ORDER SETTING ORAL ARGUMENT
HEARING

On April 22, 2003, Petitioner Siddique Abdullah Hasan filed a Petition for Writ of
Habeas Corpus (“Habeas Petition”). (Doc. 16.) Magistrate Judge Merz recommended denying
the Habeas Petition. (Docs. 81 and 119.) Pending before the Court are Magistrate Judge’s
Report and Recommendations on the Merits; Decision and Order Denying Motion for
Reconsideration (“R&R”) (doc. 81), the Magistrate Judge’s Supplemental Report and
Recommendations (“Supp. R&R”) (doc. 119); and Petitioner’s Objections to the R&R and Supp.
R&R (docs. 91, 122). Certain evidentiary issues must be resolved as part of the final
adjudication of Hasan’s Habeas Petition and his Objections to the R&R and Supp. R&R.
I.

KNOWN EVIDENTIARY ISSUES
In the Additional Briefing Per Court’s 12/18/2006 Order, Hasan requested discovery

regarding his Third, Fourth, Eighth, Ninth, Tenth, and Nineteenth Grounds for Relief. (Doc. 110
at 6–7, 15.)1 The Supreme Court of Ohio denied on the merits the claims underlying the Third,

1

Hasan also requested that the Court admit the deposition of Timothy Smith to the
record. (Doc. 110 at 25–27.) That matter need not be addressed here further because the Court
hereby deems the Smith deposition to be part of the record pursuant to Rule 7 of the Rules
Governing Section 2254 Cases in the U.S. District Courts.
1

Fourth, and Nineteenth Grounds. Those claims are subject to review pursuant to 28 U.S.C.
§ 2254(d)(1).2 The Court cannot consider evidence introduced for the first time in the habeas
proceedings during a § 2254(d)(1) review unless Hasan overcomes the bar recognized by the
Supreme Court in Cullen v. Pinholster, 131 S. Ct. 1388 (2011). “[E]vidence introduced in
federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the
merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1)
on the record that was before that state court.” Id. at 1400; see also Bray v. Andrews, 640 F.3d
731, 737 (6th Cir. 2011) (same). Significantly, § 2254(d) “applies even where there has been a
summary denial [in state court].” Cullen, 131 S. Ct. at 1402.
Next, Magistrate Judge Merz concluded in the R&R and Supp. R&R that the Eighth,
Ninth, and Tenth Grounds for Relief are barred by procedural default. Hasan did not dispute the
procedural default finding. Hasan argued, nonetheless, that he can establish his “actual
innocence” and that his actual innocence acts as a “gateway” to excuse the procedural default
and to permit the Court to examine the Grounds for Relief on the merits. House v. Bell, 547 U.S.
518, 536–37 (2006); Schlup v. Delo, 513 U.S. 298, 315–16 (1995). Hasan relied on certain

2

Section 2254 provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; . . . .
28 U.S.C. § 2254(d)(1).
2

evidentiary materials in the appendix to the Return of Writ (“ROW”) to support his actual
innocence argument. Magistrate Judge Merz concluded in the R&R and Supp. R&R that Hasan
failed to establish actual innocence and that the Eighth, Ninth, and Tenth Grounds for Relief
should be denied. Hasan asserted that Magistrate Judge Merz erred in two relevant respects in
reaching his conclusion: (1) Magistrate Judge Merz erred in failing to hold an evidentiary
hearing before evaluating the credibility and reliability of the evidence in the ROW appendix;
and (2) Magistrate Judge Merz should have permitted him to take additional discovery and
further supplement the record.
Finally, Hasan stated in his Traverse and his Objections that he cannot prove his
Eleventh, Twelfth, Thirteenth, Seventeenth (in part), and Thirty-First Grounds for Relief without
discovery. (Doc. 22-1 at 49–54, 82; Doc. 91 at 27–29, 42.) However, he did not request
discovery or an evidentiary hearing regarding these claims when given a final opportunity before
Magistrate Judge Merz to do so. (Docs. 107, 110.) It appears to the Court upon preliminary
analysis that Hasan has waived the right to seek discovery or a hearing regarding this set of
claims.
II.

ORAL ARGUMENT SCHEDULED
This case has a lengthy and tortuous procedural history which need not be repeated here.

The Court is cognizant of the need to render a final adjudication of Hasan’s Habeas Petition in
both an expeditious manner and with due regard for Hasan’s constitutional rights. Given the
variety and complexity of the disputed evidentiary matters as summarily set forth above, the
Court hereby ORDERS counsel to appear at an Oral Argument Hearing on October 20, 2011
at 10:00 a.m. Counsel should be prepared to address all relevant discovery and/or evidentiary

3

matters including without limitation the following topics:
•

Is the procedural history set forth above in Section I correct?

•

What specific additional discovery would Petitioner seek to conduct prior
to any evidentiary hearing? What specific Grounds for Relief would be
supported by the proposed discovery?

•

If granted an evidentiary hearing, what evidence would Petitioner present?
State the evidence with particularity. What witnesses testifying to what
facts and to support what Grounds for Relief?

•

Regarding each witness that Petitioner would seek to call to testify at an
evidentiary hearing, what knowledge or information does Petitioner have
that the witness is available and competent to testify?

•

In light of Cullen, 131 S. Ct. at 1401, upon what basis could the Court
consider evidence submitted for the first time in these habeas proceedings
to determine Grounds for Relief which were denied on the merits by the
Ohio Supreme Court?

•

Has Petitioner abandoned or waived his request for discovery regarding
the Eleventh, Twelfth, Thirteenth, Seventeenth (in part), and Thirty-First
Grounds for Relief?

•

What evidence attached to the ROW appendix can be considered “new”
evidence for purposes of the actual innocence gateway exception? See
Cleveland v. Bradshaw, 760 F. Supp. 2d 751, 758–59 (N.D. Ohio 2011)
(explaining new evidence requirement); see also Reid v. Moore, No.
3:05:-cv-326, 2009 WL 385756, at *3 (S.D. Ohio Feb. 13, 2009) (same).
Can a witness’s testimony be considered new evidence if Petitioner’s trial
counsel knew or should have known about the substance of the testimony
at the time of trial?

•

To the extent that Petitioner seeks discovery and/or an evidentiary hearing
on the actual innocence gateway exception to excuse procedurally
defaulted claims, how does the evidence attached to the ROW appendix
establish actual innocence, as opposed to mere reasonable doubt?

4

Finally, counsel are encouraged to file with the Court written outlines/summaries of their
oral argument presentations, listing the key arguments and legal authorities relied upon, to the
extent counsel believes it would assist the Court’s understanding. The outlines/summaries
should be no longer than five pages and can be filed on the day of the hearing.
IT IS SO ORDERED.

___s/Susan J. Dlott___________
Chief Judge Susan J. Dlott
United States District Court

5