Hasan v. Ishee

Filing 238

ORDER FOR ADDITIONAL BRIEFING - The undersigned's Order Denying Leave to Amend (ECF No. 216) is VACATED. Hasan's Motion for Leave to Amend Claim Thirty-One (ECF No. 210) is GRANTED. Hasan shall file Amended Claim Thirty-One within fourte en days of the entry of this Order. The Warden shall file a Return of Writ as to Amended Claim Thirty-One only within twenty-one days of the filing of the Amended Claim, and Hasan shall file a Traverse as to Amended Claim Thirty-One only within f ourteen days of the filing of the Return of Writ. Within thirty days of the Orders entry, the parties shall submit a joint discovery plan including a proposed date for evidentiary hearing. Signed by Magistrate Judge Michael R. Merz on 3/9/2021. (kpf)

Case: 1:03-cv-00288-SJD-MRM Doc #: 238 Filed: 03/09/21 Page: 1 of 13 PAGEID #: 15251

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SIDDIQUE HASAN
f/k/a Carlos Sanders,
Petitioner,

:

Case No. 1:03-cv-288

- vs District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TODD ISHEE, Warden,
:
Respondent.

ORDER FOR ADDITIONAL BRIEFING

This capital habeas corpus case is before the Magistrate Judge pursuant to the District
Judge’s March 25, 2020, Order (ECF No. 236) Granting in Part Petitioner Siddique Hasan’s
Motion for Reconsideration (ECF No. 231). On October 8, 2019, the Sixth Circuit issued an
opinion in White v. Warden, 940 F.3d 270 (6th Cir. 2019), applying for the first time the holdings
in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013) (“MartinezTrevino”) to Ohio law. The District Judge recommitted the matter to the Magistrate Judge on
October 15, 2019 (Recommittal Order, ECF No. 225). That same day, the Magistrate Judge
ordered additional briefing on whether the Proposed Amended Claim Thirty-One was viable in
light of Martinez-Trevino’s applicability in Ohio (Order, ECF No. 226, PageID 15157). The
Respondent Warden (ECF No. 229) and Hasan (ECF No. 230) filed their Responses on November
14 and November 27, 2019, respectively.

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I.

RELEVANT PROCEDURAL HISTORY
Hasan was sentenced to death on March 7, 1996 (See, e.g., State Court Record, ECF No.

158-1, PageID 2387). Hasan claims that trial counsel, Chuck Stidham, was ineffective throughout
the penalty phase of the trial:
Trial counsel failed to conduct a reasonable investigation of
mitigation evidence for the penalty phase, as evidenced by their
failure to attempt to use an investigator for mitigation until the last
day of the guilt phase of trial, the breakdown in their own
communication and planning before the penalty phase began, and
their neglect of an entire field of available mitigating evidence.
(Hasan Response, ECF No. 230, PageID 15195, citing Proposed Amended Claim, ECF No. 2102, PageID 14506-58). “Through initial post-conviction counsel, Chuck R. Stidham, Hasan filed
an initial post-conviction petition on July 23, 1997.” (Warden Response, ECF No. 229, PageID
15171-72, citing State Court Record, ECF No. 159-6, PageID 5545-73). The petition raised thirtynine largely barebones claims covering only 103 paragraphs, of which only Claim Seven—failure
to request the hiring of a mitigation expert—is arguably germane to the Proposed Amended Claim
Thirty-One (State Court Record, ECF 159-6, PageID 5553). The trial court denied Claim Seven
on the grounds that the claim was based on evidence in the trial record, and thus is barred by res
judicata (State Court Record, ECF No. 159-6, PageID 5620, citing State v. Perry, 10 Ohio St. 2d
175 (1967)). The court also concluded that Hasan had failed to demonstrate prejudice, and that
“[t]he hiring of a mitigation expert is not a requirement of effective assistance in a capital case.”
Id. at PageID 5621, citing Strickland v. Washington, 466 U.S. 668 (1984); State v. McGuire, 80
Ohio St. 3d 390 (1997).
On October 29, 1996, Hasan, again represented by Stidham, raised Claim Seven on appeal
as part of his First Assignment of Error, ineffective assistance of trial counsel (State Court Record,
ECF No. 160-1, PageID 5679-81, 5776-77). The First District Court of Appeals rejected the entire
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First Assignment of Error as barred by res judicata, since an ineffective assistance claim was raised
and rejected on direct appeal. Id. at PageID 6020. Stidham did not appeal the ineffective assistance
claim to the Supreme Court of Ohio (Warden Response, ECF No. 229, PageID 15175).
On May 1, 2001, Hasan, represented by new counsel, filed a new postconviction petition.
In his Thirty-Sixth Ground for Relief, Hasan alleged that Stidham was ineffective for failing to
present mitigation evidence. In his Thirty-Seventh Ground, Hasan claimed that Stidham was
ineffective for failing to present family background evidence as mitigation (State Court Record,
ECF No. 160-2, PageID 6185-90). The trial court summarily denied the petition, finding “that the
defendant has failed to satisfy the mandatory requirements of R.C. 2953.23(A)(1) and (2).
Specifically, the Court finds defendant cannot satisfy the provisions of either (A)(1) or (A)(2).”
(State Court Record, ECF No. 160-4, PageID 7042). On appeal, Hasan conceded that:
Appellant’s grounds for relief might not establish by clear and
convincing evidence that, but for constitutional error at trial, no
reasonable factfinder would have found the petitioner guilty of the
offense of conviction or sentenced him to death; however, the
documents establish a substantial violation of Appellant’s rights to
render his judgment and sentence void or voidable under the United
States Constitution.
(State Court Record, ECF No. 160-5, PageID 7079-80). The First District rejected this claim,
noting that under Ohio Rev. Code § 2953.21(I)(2)1, “[t]he ineffectiveness or incompetence of
counsel during proceedings under this section does not constitute grounds for relief in a proceeding
under this section.” State v. Sanders, 1st Dist. Hamilton No. C-020077, 2002-Ohio-5093, ¶ 18
(Sept. 27, 2002). The appellate court also rejected Hasan’s argument that Ohio’s statute on secondor-successive petitions violated the Due Process Clause of the Fourteenth Amendment. Id. at ¶¶
14-15. The Supreme Court of Ohio declined to exercise jurisdiction. State v. Sanders, 98 Ohio

1

Now codified at Ohio Rev. Code § 2953.21(J)(2).

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St. 3d 1423, 2003-Ohio-259.
On April 22, 2003, Hasan, represented by Laurence Komp and Alan Freedman, filed his
Petition for Writ of Habeas Corpus in this Court (ECF No. 16). Therein, Hasan alleged ineffective
assistance of trial counsel for failure to retain a mitigation expert until the day before the mitigation
phase began, commission a psychological or psychiatric investigation of Hasan, conduct an
adequate investigation of his family history, or secure medical records. Id. at PageID 2145-48.
On August 14, 2006, the Magistrate Judge found that “Hasan’s thirty-first ground for relief is
procedurally defaulted with no excuse to permit this Court’s consideration of the merits of the
claim. Accordingly, the Magistrate Judge recommends denial of Hasan’s thirty-first ground for
relief.” (Initial Report, ECF No. 81, PageID 1143). On December 29, 2010, the Magistrate Judge
stated that “[a]s noted in the R&R, this ground for relief is procedurally defaulted. Hasan’s attempt
to excuse that default with proof of actual innocence is discussed under Grounds Eight and Nine.”
(Supplemental Report, ECF No. 119, PageID 1668).
Martinez and Trevino subsequently established for the first time in federal habeas that
ineffective assistance of postconviction counsel could constitute cause for excusing procedural
default of a substantial ineffective assistance of trial counsel claim, when such a claim could first
be meaningfully raised in state postconviction proceedings, rather than on direct appeal. Trevino,
569 U.S. at 423; Martinez, 566 U.S. at 17. In 2014, the Sixth Circuit held that the precedent
applied to claims arising out of Tennessee’s postconviction regime. Sutton v. Carpenter, 745 F.3d
787, 790 (6th Cir. 2014). Yet, the Sixth Circuit “refused on many occasions to decide that Martinez
and Trevino apply to the Ohio post-conviction system.” Lytle v. Buchanan, No. 2:17-cv-1146,
2018 WL 5808798, *2 (S.D. Ohio Nov. 6, 2018) (Merz, Mag. J.), report and recommendations
adopted at 2019 WL 2290495 (S.D. Ohio May 29, 2019) (Sargus, C.J.).

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On January 17, 2019, Hasan, represented by Stuart Lev, filed a Motion to Amend Claim
Thirty-One, adding allegations of such ineffective assistance by Stidham in postconviction that the
attorney-client relationship was severed, even in the absence of formal abandonment by Stidham
(ECF No. 210-1, PageID 14482-83). Hasan argued that Stidham’s performance as counsel—so
ineffective that he was eventually suspended indefinitely from practicing law in Ohio—constituted
good cause to set aside the procedural default of the claim. Id. at PageID 14492 n.18, quoting
Maples v. Thomas, 565 U.S. 266, 285 n.8 (2012). He further claimed prejudice in that his
Amended Claim Thirty-One “demonstrates a reasonable probability that at least one juror would
have voted differently during the penalty phase, but for trial counsel’s deficient performance in
connection with investigation, development, and presentation of evidence about Hasan’s
background and character.” Id. at PageID 14495, citing Ambrose v. Booker, 801 F.3d 567, 57778 (6th Cir. 2015).
Hasan also argued that Martinez-Trevino applied to Ohio cases, as under Ohio law,“[f]or
all practical purposes, a petitioner seeking to prove both his trial counsel’s deficient performance
and prejudice—after prior counsel failed to investigate, develop, and present mitigating evidence
rooted in his life history, medical diagnoses, and character—must present evidence outside the
trial record.” (Motion, ECF No. 210-1, PageID 14498, citing Trevino, 569 U.S. at 427-28). This
is particularly true, Hasan claimed, in capital cases. Id. at PageID 14498-99, citing Hill v. Mitchell,
842 F.3d 910, 936-38 (6th Cir. 2016); State v. Cole, 2 Ohio St. 3d 112, 113-14 (1982). Further, he
argued, “Ohio’s state postconviction review procedure is analogous to that of Texas and other
states in which Martinez and Trevino apply.” Id. at PageID 14499-14500, quoting Fowler v.
Joyner, 753 F.3d 446, 463 (4th Cir. 2014). Finally, Hasan claimed that there was no “undue delay”
that would weigh against granting leave to amend: “Hasan does not seek to change the legal theory

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pleaded in Claim Thirty-One. He only seeks to allege facts that relate back to the core of facts he
pleaded in his initial petition and Claim Thirty-One.” Id. at PageID 14502.
On May 20, 2019, the Magistrate Judge issued an Order Denying Leave to Amend (ECF
No. 216). The Magistrate Judge noted that:
The original and amended claims are both that Hasan received
ineffective assistance of trial counsel in the penalty/mitigation phase
of his capital trial in that trial counsel performed deficiently in not
obtaining and presenting expert opinion about the impact of his
psychosocial history, and underlying lay testimony to explicate that
psychosocial history.
Id. at PageID 15027. Thus, the undersigned “conclude[d] the amended Claim Thirty-One, if
allowed, would relate back to the filing date of the original Petition[,]”Id. and rejected the
Warden’s argument that the Proposed Amended Claim Thirty-One was factually and legally
distinct from the initial Claim, and thus barred by the one-year statute of limitations for the
Antiterrorism and Effective Death Penalty Act of 1996. Id. at PageID 15028, quoting Mayle v.
Felix, 545 U.S. 644, 650 (2005); Cowan v. Stovall, 645 F.3d 815, 818, 819 (6th Cir. 2011); citing
28 U.S.C. § 2244(d)(1); Mayle, 545 U.S. at 664. However, he denied the Motion on the ground
that Martinez-Trevino had not been applied to Ohio:
The Sixth Circuit has declined on repeated occasions to decide
whether Martinez and Trevino apply to the Ohio system of
adjudicating claims of ineffective assistance of trial counsel.
Although previously urged to make that decision itself, this Court
has declined to apply Martinez and Trevino to the Ohio system
without express guidance from the Sixth Circuit. That is now the
law of this case which the Magistrate Judge declines to reconsider.
Id. at PageID 15031, citing Order, ECF No. 213. Hasan appealed the Magistrate Judge’s decision
on July 3, 2019 (ECF No. 222).
On October 8, 2019, the Sixth Circuit decided White v. Warden, holding for the first time
that Martinez-Trevino applied as good cause to excuse ineffective assistance of postconviction
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counsel, as “Ohio’s procedural framework effectively ‘channel[ed] initial review of [White’s]
constitutional claim to collateral proceedings.’

Accordingly, under the Martinez-Trevino

framework, we find that White has cause to overcome his procedural default[.]” 940 F.3d at 278
(brackets in original), quoting Trevino, 569 U.S. at 423. On October 15, 2019, the District Judge
recommitted the matter to the Magistrate Judge (ECF No. 225), and the Magistrate Judge ordered
additional briefing as to whether White dictates or permits granting leave to amend (ECF No. 226).

II.

LEGAL STANDARDS

Although the supplemental briefing was ordered sua sponte, the legal standard is the same
as if Hasan had filed a motion for reconsideration. “[A]n intervening change in controlling law”
would be grounds for amendment of a judgment Rule 59(e) of the Federal Rules of Civil
Procedure. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). A fortiori
a change in governing law is sufficient to ground reconsideration of an interlocutory decision.
Resolution of a motion for reconsideration is within the discretion of the district court. Cline v.
City of Mansfield, 745 F. Supp. 2d 773, 841 (N.D. Ohio 2010).
To come under the Martinez-Trevino exception, a petitioner must meet four requirements
with respect to his ineffective assistance of trial counsel claim:
The petitioner must show that: (1) he has a “substantial” claim of
ineffective assistance of trial counsel; (2) he had “no counsel or
counsel ... was ineffective” in his collateral-review proceeding; (3)
the collateral-review proceeding was the “initial” review of the
claim; and (4) state law requires ineffective-assistance-of-trialcounsel claims to be raised in the first instance in a collateral-review
proceeding.
White, 940 F.3d at 276, citing Martinez, 566 U.S. at 9, 17.

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III.

ANALYSIS
The White Court noted that “[a]lthough ‘[w]e have held that Martinez does not apply in

Ohio because Ohio permits ineffective-assistance-of-trial-counsel claims on direct appeal,’ a
question remains regarding the applicability of Trevino to Ohio prisoners.” 946 F.3d at 277,
quoting Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015). White’s application of Trevino
made ineffective assistance of counsel cause for excusing procedural default in postconviction
actionable in Ohio for the first time. Thus, it is an intervening change in law that can serve as
grounds for the undersigned to reconsider his prior order.
As to the first element under Martinez-Trevino, Hasan need not show at this stage that he
can prove ineffective assistance of counsel under Strickland, 466 U.S. 668. Rather, Hasan meets
the first element by raising a substantial claim of ineffective assistance of trial counsel; that is, a
claim that is not “without ‘any merit’” or “‘wholly without factual support.’” White, 940 F.3d at
276, quoting Martinez, 566 U.S. at 16. Hasan claims that:
Trial counsel failed to conduct a reasonable investigation of
mitigation evidence for the penalty phase, as evidenced by their
failure to attempt to use an investigator for mitigation until the last
day of the guilt phase of trial, the breakdown in their own
communication and planning before the penalty phase began, and
their neglect of an entire field of available mitigating evidence.
(Hasan Response, ECF No. 230, PageID 15195, citing Proposed Amended Claim, ECF No. 2102, PageID 14506-58). Specifically, Stidham failed to investigate or present evidence regarding
“what Hasan had endured during his childhood: experiences in poverty, attempting to overcome
neglect and abuse, and survival in a series of threatening, chaotic, and violent institutional
environments[.]” Id. at PageID 15193. “This evidence about Hasan’s personal background,
character, and health needed no connection to a jury’s finding of guilt to justify ‘a sentence less
than death.’” Id. at PageID 15194, quoting Tennard v. Dretke, 542 U.S. 274, 287 (2004); Skipper
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v. South Carolina, 476 U.S. 1, 5 (1986). The above evidence is relevant and could reasonably
have convinced at least one juror to vote for a sentence less than death. Wiggins v. Smith, 539 U.S.
510, 535, 537 (2003); Penry v. Lynaugh, 492 U.S. 302, 319 (1989), abrogated on other grounds
by Atkins v. Virginia, 536 U.S. 304 (2002). Thus, Hasan has met his modest burden for the first
element.
As to the second element, Hasan has met his burden of showing that Stidham performed
so deficiently as to be non-representative in postconviction. Hasan claims, and the Warden does
not dispute, that Stidham failed to develop the gravamen of Claim Thirty-One with evidence
dehors the record or present the claim to avoid procedural default. “That failure was one among
many failures; physical and mental impairments; a breakdown of attorney-client communication;
and even a division of loyalty between his personal, reputational[,] and health-related privacy
interests and his client’s interest in achieving merits review of his claims[.]” (Hasan Response,
ECF No. 230, PageID 15196 (citations omitted)).
The reasoning behind the application of Martinez-Trevino to Ohio cases allows Hasan to
meet the third element: that ineffective assistance of counsel claims relying on evidence outside
the record must be raised initially in postconviction, rather than on direct appeal. See White, 940
F.3d at 276-77 (citation omitted). (“[T]he Ohio Court of Appeals deemed direct appeal an
inappropriate forum for White’s ineffective assistance claim.”). White’s application of MartinezTrevino to Ohio cases resolves any dispute as to whether Hasan meets the closely-related fourth
element—that an ineffective assistance of counsel claim relying on evidence outside the record
can only be meaningfully raised in postconviction, even though Ohio law permits ineffective
assistance claims to be raised on direct appeal. Trevino, 569 U.S. at 429; White, 940 F.3d at 277.
In his Response, the Warden notes that Sixth Circuit District Courts applying Martinez-

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Trevino have consistently held that it only applies to initial postconviction proceedings, not
subsequent proceedings, and that Martinez-Trevino does not toll the AEDPA statute of limitations
(Warden Response, ECF No. 229, PageID 15165-66, 15170, citing Atkins v. Holloway, 792 F.3d
654 (6th Cir. 2015); Sutton, 745 F.3d at 795-796; Mann v. Cook, No. 3:15-cv-570-PLR-HBG, 2019
U.S. Dist. LEXIS 156429, *4 n.2 (E.D. Tenn. Sept. 13, 2019); Smith v. Lindamood, No. 2:16-cv2776-TLP-tmp, 2019 U.S. Dist. LEXIS 147049, *32(W.D. Tenn. Aug. 29, 2019); Knot v.
Lindamood, No. 3:17-cv-1101, 2019 U.S. Dist. LEXIS 112028, * 40 (M.D. Tenn. Jul. 5, 2019);
Myers v. Minter, No. 3:17-cv-303-TAV-HBG, 2019 U.S. Dist. LEXIS 104769, *19-20 (E.D. Tenn.
Jun. 24, 2019)). The Warden argues that because Hasan raised the gravamen of the original and
amended Claim Thirty-One in the successive state court petition, and not the initial petition, the
supposedly ineffective assistance by Stidham is irrelevant and Martinez-Trevino cannot apply. Id.
at PageID 15167-68. Conversely,
If Hasan changed course to un-pin proposed habeas claim 31 from
the successive state court post-conviction claims presented by the
Ohio Public Defender that are the subject of existing habeas claim
31, the timeliness issue under 28 U.S.C. 2244(d) would have to be
re-adjudicated. This would be so since the relation back doctrine of
Mayle v. Felix would not apply. In this hypothetical re-adjudication,
Hasan would have to contend that the supposed “new evidence” to
support proposed habeas claim 31 could not have been discovered
with the exercise of due diligence, which would mean initial postconviction counsel Chuck Stidham, was effective, and not
ineffective.
Id. at PageID 15171 n.1 (emphasis in original), citing Mayle, 545 U.S. 644 (2005).
Thus, the Warden argues, Hasan’s claim is paradoxical. The only way Hasan’s amended
claim could be timely under 28 U.S.C. § 2244(d)(1) is to tie Claim Thirty-One back to claims in
the successive state court petition, with which it shares a common core of operative facts.
However, because Martinez-Trevino cannot apply to claims arising out of a second or successive
state petition, “the announcement of White v. Warden has no bearing on this case.” (Defendant’s
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Response, ECF No. 229, PageID 15178-79, citing Lombardo v. United States, 860 F.3d 547, 557558 (7th Cir. 2017); Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014)). The “volumes of
supposed ‘new mitigation evidence’” discovered does not and cannot change this result. Id. at
PageID 15180.
The relation-back doctrine, of course, does not pertain to the relationship between the
federal and state claims, but between the original federal claim and the proposed amended claim.
As discussed above, the Magistrate Judge has already determined that there was a common core
of operative facts between the original and amended Claim Thirty-One (Order, ECF No. 216,
PageID 15027-29), and there has been no reason presented to reconsider that ruling. Further, while
the Warden is correct that Martinez-Trevino has only been applied as to an initial state
postconviction petition, it is precisely Stidham’s allegedly incompetent representation in that
initial postconviction petition that Hasan clams is the good cause to excuse the procedural default
of his ineffective assistance of counsel claim (Hasan Response, ECF No. 230, PageID 15197).
That the relevant ineffective assistance claim was raised for the first time in the second-orsuccessive state court petition is immaterial; the claim falls squarely within the exception
contemplated by Martinez-Trevino and White.
The Warden also argues that “[b]eing an unadjudicated allegation, habeas relief could not
be granted as to proposed habeas claim 31 unless this Court conducted an evidentiary hearing and
entered, de novo, favorable fact findings under the Strickland test for ineffective assistance of
counsel.” (Defendant’s Response, ECF No. 229, PageID 15181). The Warden also claims that
even though Hasan blames his attorneys or failure to present the proper evidence, attorney
ineptitude is imputed to the client for 28 U.S.C. § 2254(e)(2) purposes. Id. at PageID 15185,
quoting Holland v. Jackson, 542 U.S. 649, 653 (2004). In sum, “Hasan cannot comply with the

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‘no reasonable factfinder’ prong in 28 U.S.C. 2254(e)(2)(B). Accordingly, Hasan cannot ‘win’ an
adjudication of proposed habeas claim 31.” Id.
As Hasan correctly notes, White expressly contemplates factual discovery and evidentiary
hearings, “notwithstanding 28 U.S.C. § 2254(e)(2).” (Hasan Response, ECF No. 230, PageID
15204, quoting White, 940 F.3d at 279; citing Detrich v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013)
(plurality op.)). Indeed in White itself on remand, another Judge of this Court set an evidentiary
hearing which was only cancelled when the parties stipulated to the relevant facts.

The

undersigned agrees with the Ninth Circuit panel that “Martinez would be a dead letter if a
prisoner’s only opportunity to develop the factual record of his state [postconviction relief
(“PCR”)] counsel’s ineffectiveness had been in state PCR proceedings, where the same ineffective
counsel represented him. The same is true of the factual record of his trial-counsel’s
ineffectiveness.” Detrich, 740 F.3d at 1247 (plurality op.). To apply 28 U.S.C. § 2254(e)(2)
against Hasan would vitiate the narrow Martinez-Trevino exception to the “the unqualified
statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding
does not qualify as cause to excuse a procedural default.” Martinez, 566 U.S. at 9, citing Coleman
v. Thompson, 501 U.S. 722, 756 (1991).

The Warden concedes that Hasan has obtained

approximately 19,000 pages of discovery (Warden Response, ECF No. 229, PageID 15182),
meaning there is no dispute that Hasan has been diligent in pursuing his ineffective assistance
claim (Hasan Response, ECF No. 230, PageID 15207, citing Couch v. Booker, 632 F.3d 241, 245
(6th Cir. 2011)). In light of that diligence, and to effectuate the Martinez-Trevino exception, Hasan
will be granted factual discovery and an evidentiary hearing on Claim Thirty-One.

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IV.

CONCLUSION
For the foregoing reasons, the undersigned’s Order Denying Leave to Amend (ECF No.

216) is VACATED. Hasan’s Motion for Leave to Amend Claim Thirty-One (ECF No. 210) is
GRANTED. Hasan shall file Amended Claim Thirty-One within fourteen days of the entry of this
Order.2 The Warden shall file a Return of Writ as to Amended Claim Thirty-One only within
twenty-one days of the filing of the Amended Claim, and Hasan shall file a Traverse as to Amended
Claim Thirty-One only within fourteen days of the filing of the Return of Writ. Within thirty days
of the Order’s entry, the parties shall submit a joint discovery plan including a proposed date for
evidentiary hearing.

IT IS SO ORDERED.

March 9, 2021.
s/ Michael R. Merz
United States Magistrate Judge

2

The Court cautions Hasan against filing his Proposed Amended Claim (ECF No. 210-2) before numbering the
paragraphs and removing legal arguments and citations.

13