Pettus-Brown vs Warden, Correctional Reception Center

Filing 26

ORDER OF MOTION FOR RECONSIDERATION; STATEMENT OF THE STATUS OF THE CASE - Petitioner's Motion to Reconsider Request for Evidentiary Hearing (Doc. No. 25) is again DENIED, albeit without prejudice. Signed by Magistrate Judge Michael R Merz on 2/2/2015. (kpf1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
LaSHAWN R. PETTUS-BROWN,
Petitioner,

:

- vs -

Case No. 1:14-cv-292
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Correctional Reception
Center,
:
Respondent.

ORDER OF MOTION FOR RECONSIDERATION; STATEMENT OF
THE STATUS OF THE CASE

This habeas corpus case is before the Court on Petitioner’s Motion to Reconsider Request
for Evidentiary Hearing (Doc. No. 25).

Prior Holding
In denying Petitioner’s original request for an evidentiary hearing, the Court noted that a
decision on whether the state court decision on any constitutional claim made in the case was
contrary to or an objectively unreasonable application of clearly established Supreme Court law
was limited to consideration of the record before the state court, as held in Cullen v. Pinholster,
563 U.S. ___,131 S. Ct. 1388 (2011).

The Motion for Reconsideration
Acknowledging the effect of Pinholster, Pettus-Brown asserts in the instant Motion that

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Pinholster “restricts hearings only on substantive constitutional claims, not on procedural
issues.” (Doc. No. 25, PageID 272). He claims what he wishes to present at an evidentiary
hearing is not covered by Pinholster.
First of all, Pettus-Brown wishes to present evidence and witnesses “that proves his
‘actual innocence’ to overcome any procedural bar. . . .” Id. Aside from actual innocence,
Pettus-Brown wishes to present evidence and witnesses to show cause to overcome procedural
defaults by showing that the “state’s/county’s departments, officers, employees, and agents that
prevented Mr. Pettus-Brown from raising these claims in state court and the ways in which these
preventions took place by the parties.” Id. at PageID 273.
Lastly Pettus-Brown says this Court did not expressly exclude “outside evidence,” the
Respondent has waived procedural defenses, and “an evidentiary hearing is consistent with the
newly converted Rule 56 motion for summary judgment (formerly Rule 12(c).” Id., citing Max
Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494 (6th Cir. 2006).

Analysis

Claim of Actual Innocence

A claim of actual innocence offered to excuse procedural default is not a substantive
claim for habeas corpus relief, but a “gateway” claim and therefore not subject to the Pinholster
restrictions.
Before the Court will grant an evidentiary hearing on an assertion of actual innocence,
however, a petitioner must show under Habeas Rule 8 whether an evidentiary hearing is

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warranted. This Court’s practice has been to require a statement of the actual innocence claim in
sufficient detail for the Court to understand it and the Respondent to defend. In addition, the
Court will require, as it does in all civil cases to be tried, that the Petitioner produce a list of
witnesses to be called and a proffer of what their testimony will be. Pettus-Brown has not
presented anything like this kind of detail, but may do so in the context of a renewed motion for
evidentiary hearing on his actual innocence claim.
Pettus-Brown is also hereby advised that Habeas Rule 8 requires the Court to appoint
counsel for petitioner for such a hearing if petitioner qualifies under 18 U.S.C. § 3006A. If
Pettus-Brown desires the appointment of counsel for such a hearing, he must submit an
application under § 3006A showing his financial condition.

Claim of Cause to Excuse Procedural Default

A habeas petitioner who has procedurally defaulted a constitutional claim may excuse
that default by showing cause for the default and resulting prejudice.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas
petitioner “can overcome a procedural default by showing (a) cause for the default, and (b) actual
prejudice from it.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009); Bonilla v. Hurley, 370
F.3d 494, 498 (6th Cir. 2004), quoting Murray v. Carrier, 477 U.S. 478 (1986). When the

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asserted cause is ineffective assistance of trial counsel, the petitioner need not satisfy the
heightened 2254(d)(1) standard. Vasbinder, at 236-37.
Cause must be something external to the petitioner, something that cannot fairly be
attributed to him; it must be some objective factor external to the defense. Hartman v. Bagley,
492 F.3d 347, 358 (6th Cir. 2007); Murray v. Carrier, 477 U.S. 478 (1986).
The same sort of detail is needed to warrant an evidentiary hearing on cause and
prejudice as is needed on the actual innocence gateway claim, to wit, what is the actual asserted
cause, what witnesses will testify to it, what documentary evidence will be offered. In addition,
the Supreme Court has held that if ineffective assistance of trial counsel is relied upon to show
cause and prejudice, that claim must first have been presented to the state courts and can itself be
forfeited by failing to properly present it. Edwards v. Carpenter, 529 U.S. 446 (2000).
Pettus-Brown may renew his motion for evidentiary hearing on his cause and prejudice
assertion by giving the same sort of details as required above for the actual innocence claim.

“Conversion” of the Rule 12(c) Motion

Pettus-Brown filed a Motion for Judgment on the Pleadings in this case under Fed. R.
Civ. P. 12(c) with no attached documents (Doc. No. 12). Respondent opposed that Motion
without attaching any documents (Doc. No. 13). Petitioner also attached no documents to his
Reply (Doc. No. 14).
The undersigned Magistrate Judge, after the case was transferred to him, recommended
that the motion for judgment on the pleadings be denied because (1) Fed. R. Civ. P. 12(c) allows
such a motion only after the pleadings are closed and the pleadings in this case were not (and still

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are not) closed; and (2) Pettus-Brown relied on matter outside the pleadings with no showing that
the matter on which he relied was part of the state court record. (Report and Recommendations,
Doc. No. 18, PageID 197-98.) The Magistrate Judge concluded under Habeas Rule 12 that Fed.
R. Civ. P. 12(c) should not be applied to this case. Id. at PageID 198.
Pettus-Brown seems to be arguing that this recommendation somehow worked a
“conversion” of his Motion for Judgment on the Pleadings to a summary judgment motion under
Fed. R. Civ. P. 56 because the Court did not “expressly exclude” outside evidence, relying on
Arnold & Sons, supra. In that case the Sixth Circuit held that
In our view, Rule 12(c) requires only one action by the district
court for the conversion to a summary judgment motion to occur:
failure to exclude presented outside evidence. We therefore agree
with the third line of cases, as exemplified by Dempsey. This Court
has found that the mere presentation of evidence outside of the
pleadings, absent the district court's rejection of such evidence, is
sufficient to trigger the conversion of a Rule 12(c) motion to a
motion for summary judgment. See Moody v. United States, 774
F.2d 150, 155 n.5 (6th Cir. 1985) ("Although the government's
motion in Bawgus was for judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c), it is clear that matters outside the pleadings
were presented; we, therefore, consider the court's decision as if
entered on a motion for summary judgment, Fed. R. Civ. P. 56.").
Although we have found that consideration or reliance on matters
outside the pleadings is sufficient to trigger conversion under Rule
12(c), see, e.g., Thompson v. The Budd Co., 199 F.3d 799, 804
(6th Cir. 1999) (consideration); Swallows v. Barnes & Noble
Book Stores, Inc., 128 F.3d 990, 992 (6th Cir. 1997) (reliance),
we have never held that consideration or reliance was required
under Rule 12(c) for conversion to a motion for summary
judgment. We therefore disagree with those cases that require the
district court to further consider or rely upon these outside matters
before the obligation to convert is triggered; the plain language of
Rule 12(c) does not require these additional steps; it only requires
the presentation of matters outside the pleadings and the district
court's failure to exclude such matters. See also 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1371
(3d ed. 2004) ("[A] district court could consider evidence outside
the pleadings on a motion under Rule 12(c), and, upon acceptance
of that material, would regard the motion as one for summary
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judgment . . . . The district court remains free to refuse to accept
materials outside the pleadings in order to keep the motion under
Rule 12(c) . . . ." (emphasis supplied).).
452 F.3d at 503.
Pettus-Brown misinterprets how Arnold & Sons applies here. First of all, the Report and
Recommendations did expressly exclude the matter outside the pleadings on which PettusBrown relied. See Report, Doc. No. 18, PageID 197. Second, the Report rejects the notion that
Fed. R. Civ. P. 12(c) should be applied at all in this habeas case, “at least at the present
juncture.” Id. at PageID 198. The same would be true of summary judgment procedures under
Fed. R. Civ. P. 56: it is also not applicable to this habeas corpus proceeding, at least at the
present time. Pettus-Brown’s request for an evidentiary hearing on his motion, whether under
Fed. R. Civ. P. 12(c) or 56, is DENIED.
Upon reconsideration, the request for evidentiary hearing is again DENIED, albeit
without prejudice to its renewal as set forth above.

Status of the Case

The status of this case at the present time as the Magistrate Judge understands it is as
follows:
1.

The recommendation to deny Pettus-Brown’s Motion for Judgment on the Pleadings is

ripe for decision by Judge Barrett on Pettus-Brown’s Objections (See Doc. Nos. 18, 20, 22).
2.

The Magistrate Judge has found that Pettus-Brown has not exhausted available state court

remedies and agrees with the Respondent that as of the present date Pettus-Brown has available
the remedies of delayed direct appeal to the Ohio Supreme Court and completion of the

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proceeding for reopening direct appeal that he began on December 22, 2014 (Respondent’s
Objections, Doc. No. 23, PageID 230-31.) Based on that finding, the Magistrate Judge agrees
that Respondent’s Motion to Dismiss is not moot, but persists in recommending that the Court
not dismiss the case but stay it pending exhaustion. Respondent has already objected to that
recommendation (Doc. No. 23). Pettus-Brown has until February 12, 2015, to respond to those
Objections.
February 2, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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