Hasan v. Ishee

Filing 294

ORDER STAYING DISCOVERY AND SETTING BRIEFING SCHEDULE. Signed by Magistrate Judge Michael R. Merz on 5/24/2022. (kpf)

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 STAYING DISCOVERY AND SETTING BRIEFING
SCHEDULE

This capital habeas corpus case is before the Court sua sponte in light of the Supreme
Court’s decision in Shinn v. Martinez Ramirez, No. 20-1009, ___ S.Ct. ____, 2022 WL 1611786
(May 23, 2022). In its August 10, 2021, Order regarding discovery, the Court acknowledged that
certiorari had been granted in Martinez Ramirez, noting that “[t]he Supreme Court will examine
the question of whether and to what extent the ban on evidence outside of the state court record
set forth in 28 U.S.C. § 2254(e)(2) applies to claims in which cause and prejudice have been
demonstrated under Martinez-Trevino to set aside a procedural default.” (ECF No. 266, PageID
16001, citing Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1 (2012).) The
Warden moved to stay the proceedings, including discovery, as to Claims Eight, Nine, and
Thirty-One, arguing that a decision in Martinez Ramirez barring evidence outside the record
would obviate the need for discovery on those claims. The Court denied that motion, concluding
that the Warden had waived any argument as to Claims Eight and Nine and that 28 U.S.C. §
1

2254(e)(2) did not bar discovery as to Claim Thirty-One. (Id. at PageID 16003, 16007-08.) The
Court subsequently approved a joint discovery schedule (Joint Motion, ECF No. 290; Order,
ECF No. 291.)
However, in its August 2021 Order, the Court stated that, in the event the Supreme Court
reversed Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019), reh’g denied sub nom. Ramirez v.
Shinn 971 F.3d 1116 (9th Cir. 2020), and Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019), reh’g
denied 971 F.3d 1133 (9th Cir. 2020), and held that 28 U.S.C. § 2254(e)(2) barred factual
discovery, “the Court would need further briefing as to whether severance of the attorney-client
relationship still constituted an exception to the bar in 28 U.S.C. § 2254(e)(2).” (Order, ECF No.
266, PageID 16010.) The Supreme Court has now held that even when ineffective assistance of
postconviction counsel prevented the state court record from being adequately developed, and
thus came under the Martinez-Trevino exception to procedural default, there was “no warrant to
impose any factfinding requirements beyond § 2254(e)(2)’s narrow exceptions to AEDPA’s
general bar on evidentiary hearings” and reversed the Ninth Circuit. (Martinez Ramirez, 2022
WL 1611786, at *13 (alterations, internal quotation marks, and citation omitted).)
In light of Martinez Ramirez, it is uncertain whether 28 U.S.C. § 2254(e)(2) bars any
evidentiary hearing for Petitioner Siddique Abdullah Hasan on Claims Eight, Nine, and ThirtyOne.

Thus, the Court’s May 4, 2022, Notation Order Granting Joint Motion to Approve

Proposed Amended Schedule (ECF No. 291) is VACATED and discovery in the case is
STAYED pending resolution of this issue. The Court is cognizant of the effort expended by the
parties to develop a discovery schedule and of the risk to Petitioner that he may not be able to
develop certain evidence as a result of the stay (Order, ECF No. 266, PageID 16010.)
Nonetheless, discovery is in the early stages (see, e.g., May 18, 2022, Motion for Leave to

2

Conduct Written Discovery, ECF No. 292), and it would be a waste of time and resources for the
parties to attempt to develop evidence unless the Court is satisfied that it may properly consider
that evidence.
Further, the parties are ORDERED to submit simultaneous briefing on the issue of
whether 28 U.S.C. § 2254(e)(2) bars consideration of evidence outside the state court record
within thirty days of this Order. Responsive memoranda may be filed within fourteen days of
the filing of the initial briefs.
Petitioner’s Motion to Conduct Written Discovery is DENIED without prejudice to its
renewal if the stay of discovery is lifted.

May 24, 2022.
s/ Michael R. Merz
United States Magistrate Judge

3