Hasan v. Ishee

Filing 289

ORDER REGARDING DISCOVERY denying 281 Motion for Discovery - Discovery in the case remains suspended pursuant to the Courts January 7, 2022, OrderAmending Schedule (ECF No. 288 .) Signed by Magistrate Judge Michael R. Merz on 4/18/22. (pb)

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 1 of 6 PAGEID #: 16438

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

:

- vs -

Case No. 1:03-cv-288
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

TODD ISHEE, Warden
:
Respondent.

ORDER REGARDING DISCOVERY

This capital habeas corpus case is before the Court on Respondent Warden’s Motion to
Conduct Pre-Trial Depositions (ECF No. 281.)

The Warden seeks to depose four former

attorneys for Petitioner Siddique Abdullah Hasan: Cathy Cook, Kelly Culshaw, Alan Freedman,
and Laurence Komp. For the reasons set forth below, the Warden’s Motion is DENIED.
I.

Legal Standard
The standard for discovery in habeas matters was articulated by the Supreme Court in

Bracy v. Gramley, 520 U.S. 899 (1997), and codified in Rule 6 of the Rules Governing 2254
Cases (“Habeas Rules”): the party requesting discovery must provide reasons for the request,
and those reasons must constitute good cause to obtain the requisite leave of Court to conduct
discovery. Habeas R. 6(a-b). The Court must first identify the elements of the claim for which
discovery is sought, and then evaluate whether the evidence sought is relevant to the claim.
Bracy, 520 U.S. at 904. The parties disagree as to whether Bracy applies to the Warden, as he

1

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 2 of 6 PAGEID #: 16439

seeks only to respond to Petitioner’s Claims Eight, Nine, and Thirty-One (“the Claims”)
(Motion, ECF No. 281, PageID 16054; Memo. in Opp., ECF No. 283, PageID 16107-08.) The
Warden’s position that it does not has no support in the law. Rule 6 expressly refers to “a party,”
and does not, with the exception of the irrelevant Rule 6(c), differentiate between the burdens for
petitioner and respondent. Moreover, the Bracy Court analyzed the petitioner’s burden because
the petitioner was the party seeking discovery. Nothing in its holding or dicta suggests its
reasoning was limited to a petitioner. In sum, the “good cause with good reasons” requirement
applies equally to the Warden as it does to Petitioner. The Warden must make specific factual
allegations in support of his argument of good cause. Stojetz v. Ishee, 892 F.3d 175, 207 (6th
Cir. 2018); Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004).
II.

Analysis
A.

Scope of Claims

The Claims are as follows:
8.
Trial counsel were ineffective for failing to investigate and present
witnesses which [sic] could have adequately confronted the state’s case that
Petitioner orchestrated the 1993 prison riot and ultimately maintained a leadership
role throughout its course and ordered the killing of a guard in violation of the
Sixth and Fourteenth Amendments (Petition, ECF No. 16, PageID 2069);
9.
Petitioner’s counsel were ineffective when they failed to investigate and
cross-examine state’s witnesses which would have dispelled the state’s theory that
Petitioner orchestrated the 1993 prison riot and ultimately maintained a leadership
role throughout its course and ordered the killing of a guard in violation of the
Sixth and Fourteenth Amendments (id. at PageID 2083); and
31.
Trial counsel were ineffective for failing to investigate and present
witnesses at the mitigation phase in violation of the Sixth and Fourteenth
Amendments (Am. Claim Thirty-One, ECF No. 242, PageID 15298.)
The Warden argues that effectiveness of postconviction counsel, specifically the
performance of Chuck Stidham, has been put into issue by Hasan, and discovery is appropriate to
2

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 3 of 6 PAGEID #: 16440

fairly respond to those claims (Motion, ECF No. 281, PageID 16054-55.) Petitioner counters that
the effectiveness of postconviction counsel was only relevant in determining whether good cause
existed under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013),
to set aside the procedural default of the Claims, all of which pertain to ineffective assistance of
trial counsel (Memo. in Opp., ECF No. 283, PageID 16107-08.1) The Warden claims that
Petitioner’s argument is belied by his listing of Stidham as a potential witness at the evidentiary
hearing on the Claims (Reply, ECF No. 287, PageID 16208, citing Pet. Witness List, ECF No.
278-1, PageID 16046.) “Moreover, in its determination to proceed with a Martinez evidentiary
hearing, the Court could not have intended to issue a final adjudication that Stidham was
ineffective as post-conviction counsel. Actual evidence by which to determine the effectiveness
of post-conviction counsel has yet to be generated.” (Id.)
The Warden is correct that setting aside the procedural default under Martinez-Trevino
did not constitute a merits decision on whether Stidham was ineffective. Yet, Stidham’s relative
effectiveness is not within the scope of the Claims. The issue previously before the Court was
whether Stidham was ineffective in postconviction and, if so, whether that ineffectiveness could
excuse the procedural default of the Claims. Stidham is set to testify only as to the Claims, not
his representation of Petitioner in postconviction (Pet. Witness List, ECF No. 278-1, PageID
16046.) If Stidham, while testifying, exceeds the scope of the Claims, the Warden’s counsel is
free to object. However, why Stidham undertook certain actions as postconviction counsel is
not, contrary to the Warden’s claim, subject to a final determination by this Court (Reply, ECF
No. 287, PageID 16208.) Rather, it is only why trial counsel undertook or did not undertake

1

At various points in Petitioner’s memorandum contra, there are references to the Warden’s Motion as, e.g. “Mot.
4” (ECF No. 283, PageID 16108), rather than to the document’s ECF and PageID numbers. The parties are
reminded that the latter type of references are required under S.D. Ohio L.Civ.R. 7.2(b)(3). Future filings that do
not comply with the Local Rule may be stricken at the Court’s discretion.

3

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 4 of 6 PAGEID #: 16441

certain actions that is subject to final determination after an evidentiary hearing, and only
discovery related to the Claims will be permitted upon good cause shown.

B.

Cathy Cook

The Warden argues that Cook, postconviction co-counsel with Stidham2, will have
information on the Motion for New Trial that she filed with Stidham and later withdrew (Reply,
ECF No. 287, PageID 16209.) It is unclear to the Court why that motion and its withdrawal have
anything to do with trial counsel’s ineffectiveness. The Warden concedes that the reason for
taking Cook’s deposition is “[b]ecause the reasons for action or lack of action by post-conviction
counsel Stidham remain an open question[.]” (Id.) Yet, as discussed above, they are not open
questions. Accordingly, the Motion is denied as to Cook.

C.

Kelly Culshaw

The Warden claims that Culshaw, state court successive postconviction counsel for
Petitioner, “has considerable information about the controversy with deceased trial counsel Dave
Otto, as well as about the steps she took to bring in expert psychologist Dr. Monique Coleman.”
(Motion, ECF No. 281, PageID 16055.)

The Warden’s argument as to Otto is belied by the

documents to which he obliquely refers, which show that Culshaw, far from having information
about Otto, unsuccessfully sought to depose him regarding supposed inconsistencies between his

affidavit and other evidence (State Court Record, ECF No. 160-4, PageID 6997-7000, ECF No.
160-4, PageID 7018.) While the Warden refers to a dispute between Otto and trial co-counsel
Tim Smith (Reply, ECF No. 287, PageID 16209, citing Motion App’x, ECF No. 281-1, PageID

2

Petitioner argues that Cook represented him only on direct appeal, not in postconviction (Memo. in Opp., ECF No.
283, PageID 16108.) The Court need not address this argument, as it is not necessary to decide the Motion.

4

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 5 of 6 PAGEID #: 16442

16073), it is unclear why Culshaw would be a better source of information about the dispute than
Smith, who is on Petitioner’s witness list (ECF No. 278-1, PageID 16046) and has already been
deposed by the Warden (ECF No. 287.) Information from Culshaw about a dispute between
Otto and Smith would thus amount to the type of fishing expedition that Habeas Rule 6 is
designed to prevent. Williams, 380 F.3d at 974.
The topics of Culshaw’s hiring of Coleman and her interviews of defense trial
investigator Darlene Crowl and many inmate witnesses are no more suited for deposition than
her interview with Otto. It is true that the actions of Crowl and the inmates may be at issue at the
evidentiary hearing (Reply, ECF No. 287, PageID 16210), and that the decision to hire Coleman
may reflect on trial counsel’s effectiveness in failing to obtain a psychological evaluation.
However, the Warden does not indicate that Culshaw would be testifying as an opinion, rather
than fact, witness, and the Warden does not explain how Culshaw’s actions as postconviction
counsel directly bear on the effectiveness of trial counsel. In the absence of any evidence
directly relating to the Claims, the Warden’s Motion must be denied as to Culshaw.

D.

Alan Freedman and Laurence Komp

The Warden argues that Hasan has repeatedly accused Freedman and Komp, federal
habeas counsel, of “ineptitude that, according to Hasan, has prevented an earlier presentation of
new mitigation evidence Hasan had procured since 2018. The Warden should be permitted to test
the strength of Hasan’s allegation by way of a deposition of Komp and Freeman [sic].” (Motion,
ECF No. 281, PageID 16055.) Again, whatever ineptitude there was by Freedman and Komp in
delaying the development and presentation of new evidence is not before the Court. Their
performance as habeas counsel has no bearing on the effectiveness of trial counsel with respect

5

Case: 1:03-cv-00288-SJD-MRM Doc #: 289 Filed: 04/18/22 Page: 6 of 6 PAGEID #: 16443

to the Claims. Moreover, as Petitioner correctly states, the issue of whether Petitioner unduly
delayed in seeking leave to amend Claim Thirty-One has been conclusively adjudicated by this
Court (Memo. in Opp., ECF No. 283, PageID 16110, citing Order, ECF No. 266, PageID 1600608.) Accordingly, there are no grounds to depose Freedman and Komp, and the Motion must be
denied as to them as well.

III.

Conclusions
For the foregoing reasons, the Warden’s Motion for Pre-trial Discovery is DENIED.

Discovery in the case remains suspended pursuant to the Court’s January 7, 2022, Order
Amending Schedule (ECF No. 288.)

April 18, 2022.
s/ Michael R. Merz
United States Magistrate Judge

6