Hasan v. Ishee

Filing 243

ORDER ON CLAIMS EIGHT AND NINE - The Court finds that the Martinez-Trevino exception, applied to Ohio cases via White, constitutes good cause and prejudice to excuse the procedural default of Claims Eight and Nine. Not later than May 4, 2021, the p arties shall submit a joint discovery plan, including a proposed date for evidentiary hearing. Upon agreement of the parties, such a plan may encompass discovery and hearing for Claim Thirty-One as well (See Order, ECF No. 238, PageID 15263). Signed by Magistrate Judge Michael R. Merz on 4/5/2021. (kpf)

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

:

Case No. 1:03-cv-288

- vs District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TIMOTHY SHOOP, Warden,
Chillicothe Correctional Institution
:
Respondent.

ORDER ON CLAIMS EIGHT AND NINE

This capital habeas corpus case is before the undersigned on return from District Judge
Susan J. Dlott. On March 28, 2019, this Court denied the appeal of Petitioner Siddique Hasan
from the Magistrate Judge’s decision denying discovery as to Claims Four, Eight, and Nine in his
Petition for Writ of Habeas Corpus (Decision and Order, ECF No. 213, citing Decision, ECF No.
190; Appeal, ECF No. 203). The Court, in its Order, held that Claims Four, Eight, and Nine had
been procedurally defaulted, and that the exception set forth in Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013) (“Martinez-Trevino”) could not excuse the
default, as the exception had not yet been applied to Ohio law (Decision and Order, ECF No. 213,
PageID 15005-07, 15011, 15014).
However, on October 18, 2019, the Sixth Circuit held that the Martinez-Trevino exception

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applied in Ohio cases. White v. Warden, 940 F.3d 270 (6th Cir. 2019), cert. denied sub. nom. White
v. Morgan, 140 S.Ct. 2826 (Mem.) (2020). Hasan subsequently filed a Motion for Reconsideration
and to Return Matters to the Magistrate Judge in light of White (ECF No. 231). Judge Dlott denied
the Motion with respect to Claim Four and granted the Motion with respect to Claims Eight and
Nine, returning the latter claims to the Magistrate Judge (Order, ECF No. 236, PageID 15248-49).
On March 8, 2021, the undersigned ordered briefing on the applicability of White to Claims Eight
and Nine no later than March 22, 2021 (Order, ECF No. 237). While Hasan filed a memorandum
(ECF No. 241), the Respondent Warden did not.
This Court already addressed the applicability of White to Hasan’s Claim Thirty-One
(Order, ECF No. 238). Therein, the Court discussed the relevant procedural history, Hasan’s
representation by Chuck Stidham, the procedural default of Hasan’s ineffective assistance of
counsel claims, and the application of Martinez-Trevino to Ohio law for the first time. Id. at
PageID 15252-56. The Court also discussed the legal standard for using Martinez-Trevino to
establish cause and prejudice to set aside procedural default for a particular claim. First, the claim
must be “substantial”—that is, not devoid of legal merit or factual support. Id. at PageID 15257,
citing White, 940 F.3d at 276. Second, counsel must have performed ineffectively in postconviction. Id. Third, in the particular state, a claim of ineffective assistance of counsel relying
on evidence dehors the record must be raised for the first time in post-conviction, rather than on
direct appeal. Id. at PageID 15259, citing White, 940 F.3d at 276-77. Fourth, the ineffective
assistance claim can only be meaningfully raised in post-conviction, even if the state technically
allows such a claim on direct appeal. Id., citing Trevino, 569 U.S. at 429; White, 940 F.3d at 277.
For Claim Eight, Hasan identifies numerous inconsistencies in the testimonies of David
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Lomache, Roger Snodgrass, and Anthony Lavelle at Hasan’s trial (Hasan Memo., ECF No. 241,
PageID 15274-75, citing State Court Record, ECF No. 163-6, PageID 10201; ECF No. 163-10,
PageID 10989; ECF No. 164-2, PageID 11324, 11333-34). He also identifies purported falsehoods
in the testimony and prior statements of the State’s key witness, Kenneth Law, and claims that
reasonable investigation would have uncovered several witnesses who would have undercut Law’s
version of events. Id. at PageID 15279-82, citing Davis v. Bradshaw, 900 F.3d 315, 330 (6th Cir.
2018); State Court Record, ECF No. 160-2, PageID 6233-34; Motion to Amend, ECF No. 185,
PageID 13881, 13893-95.
As to Claim Nine, Hasan argues that there was evidence that Lavelle or James Were, a/k/a
Namir Abdul Mateen, was responsible for the death of Corrections Officer Robert Vallandingham,
rather than Hasan (Hasan Memo., ECF No. 241, PageID 15285-87 (citations omitted)). Yet, trial
counsel failed to investigate or develop any of this evidence. Specifically, “trial counsel failed to
adequately investigate and cross-examine the following witnesses: Sherman Sims, Reginald
Williams, Miles Hogan, Anthony Lavelle, Stacey Gordon, and Confidential No. 400.” Id. at
PageID 15273.

“Trial counsel, however, failed to present any of the substantial evidence

undermining the state’s theory because they had not adequately investigated and prepared for the
trial. Counsel was thus ineffective, and their failures prejudiced Hasan.” Id. at PageID 15288.
As stated above, Hasan need not meet the Strickland v. Washington, 466 U.S. 668 (1984),
standard at this juncture to come under the Martinez-Trevino exception. Rather, he must simply
show that Claims Eight and Nine are factually supported and are not “without merit.” White, 940
F.3d at 276, quoting Martinez, 566 U.S. at 16. Hasan has demonstrated both factual and legal
sufficiency through the above, and the Warden has done nothing to call into question Hasan’s
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recitation of the evidence that counsel failed to develop or present. Thus, Hasan has satisfied the
first element.
As to the second element, the Court refers to its previous Order on Claim Thirty-One:
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[.]”
(ECF No. 238, PageID 15259, quoting Hasan Response, ECF No. 230, PageID 15196). Similarly,
there is no dispute that Stidham failed to investigate and present evidence dehors the record in
support of Claims Eight and Nine; indeed, he did not fairly present the claims at all such that
procedural default could be avoided. Thus, Hasan has satisfied the second element for White.
The third and fourth elements are easily met, again for the reasons set forth in the Court’s
previous Order (ECF No. 238, PageID 15259). As Ohio does not permit evidence dehors the
record to be introduced on direct appeal, Hasan’s post-conviction petition was the first time he
could meaningfully pursue his ineffective assistance claim. Moreover, the logic of Trevino—that
Martinez should extend to jurisdictions in which ineffective assistance claims, although technically
permissible on direct appeal, cannot be meaningfully raised—was extended by the Sixth Circuit
to Ohio, due to its prohibition on raising evidence outside the record. White, 940 F.3d at 276-77,
citing Trevino, 569 U.S. at 429.
Having satisfied his burden under White, Hasan is entitled to factual discovery and an
evidentiary hearing “notwithstanding 28 U.S.C. § 2254(e)(2).” White, 940 F.3d at 279, citing
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Detrich v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013) (plurality op.). “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.” Detrich, 740 F.3d at 1247, citing Strickland, 466 U.S. at
694. Hasan is correct that without current counsel examining the witnesses that supposedly clear
him of involvement in the killing of Vallandingham and those witnesses that previously implicated
him, the Court cannot assess the credibility of those witnesses. Absent such an assessment, the
Court cannot determine whether trial counsel’s failure to investigate and present this evidence
violated Strickland.
For the foregoing reasons, the Court finds that the Martinez-Trevino exception, applied to
Ohio cases via White, constitutes good cause and prejudice to excuse the procedural default of
Claims Eight and Nine. Not later than May 4, 2021, the parties shall submit a joint discovery plan,
including a proposed date for evidentiary hearing. Upon agreement of the parties, such a plan may
encompass discovery and hearing for Claim Thirty-One as well (See Order, ECF No. 238, PageID
15263).

April 5, 2021.
s/ Michael R. Merz
United States Magistrate Judge

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