Hunter v. Warden Chillicothe Correctional Institution
Filing
132
OPINION and ORDER granting 128 Motion to Stay. Signed by Judge Michael H. Watson on 8/16/2022. (jk)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAMONT HUNTER,
Petitioner,
Case No. 1:15-cv-209
V.
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
WARDEN,
Chillicothe Correctional Institute,
Respondent.
OPINION AND ORDER
Petitioner Lament Hunter, a prisoner sentenced to death by the State of
Ohio, has pending before this Court a habeas corpus action pursuant to 28
U. S. C. § 2254. This matter is before the Court for consideration of Hunter's
Unopposed Motion to Stay Federal Habeas Corpus Proceedings and hlold Them
in Abeyance and Authorize hlabeas Counsel to File in State Court. ECF No. 128.
Both requests are well taken and GRANTED.
I.
Overview
On September 29, 2020, the Court issued an Opinion and Order allowing
discovery "to form a complete an accurate forensic opinion" as to the victimchild's cause of death, as well as the cause of other injuries that the victim
presented at the hospital. ECF No. 96, at PAGEID # 7135. Upon completion of
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that discovery, Hunter sought and obtained leave to amend his petition to add
new and/or bolstered claims of actual innocence; guilt-phase ineffective
assistance of counsel; the suppression of exculpatory evidence in violation of
Brady v. Maryland, 373 U. S. 83 (1963); the prosecution's creation of a false
impression in violation of/Vapue v. Illinois, 360 U. S. 264 (1959); and the
introduction of untrue testimony by a prosecution witness regarding the victim's
cause and manner of death and injuries. ECF No. 129. Hunter promptly filed his
Third Amended Petition on July 27, 2022. ECF No. 130.
Because the amended petition now before the Court presents both
exhausted and unexhausted claims, Hunter asks this Court to stay these
proceedings and hold them in abeyance pending the completion of new statecourt litigation he plans to pursue. ECF No. 128, at PAGEID # 7308. Counsel
for the Respondent-Warden does not oppose Hunter's request. Id. at PAGEID
# 7309. Hunter additionally asks this Court to authorize his habeas counsel to
represent him in his forthcoming state-court proceedings and states that counsel
for the Warden also does not oppose this request. Id. at PAGEID # 7314
II.
Legal Standards
State prisoners seeking habeas corpus relief must first exhaust all
remedies available in the state courts. 28 U. S. C. § 2254(b); Picard v. Connor,
404 U. S. 270, 275 (1971 ). Exhaustion of state-court remedies requires
petitioners to "fairly present" each claim to the state courts in a manner that
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affords the state courts the opportunity to remedy the alleged constitutional
violation, which obliges a petitioner to present the same factual and legal basis
for each claim to the state courts that the petitioner seeks to present to the
federal habeas court. Gray v. Netherland, 518 U. S. 152, 162-63 (1996); Williams
v. Anderson, 460 F. 3d 789, 806 (6th Cir. 2006). A claim is not exhausted if there
remain available state-court remedies. 28 U. S. C. § 2254(b), (c). Failure to
exhaust will be excused, and the claim denied, when it appears that the claim is
plainly without merit and that it would be a waste of time and judicial resources to
require exhaustion. Pratherv. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987).
Federal district courts may not adjudicate a "mixed" habeas petition that
presents both exhausted and unexhausted claims. Rose v. Lundy, 455 U. S. 509,
518-19 (1982). But district courts have the discretion to stay habeas corpus
proceedings and hold them in abeyance to allow a petitioner with a mixed petition
to return to state court to exhaust the unexhausted claims. Rhines v. Weber, 544
U. S. 269, 275-76 (2005). A Rhines stay-and-abeyance is warranted only when
the unexhausted claims are not plainly meritless and the petitioner has shown
good cause for the failure to exhaust the claims earlier. Id. at 277. Further, stay-
and-abeyance is only available in limited circumstances and must be conditioned
on time limits so as not to undermine Congress's intent to streamline habeas
proceedings and encourage finality of state court judgments. Id. at 276-78.
Stay-and-abeyance is thus inappropriate if a petitioner engages in abusive
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litigation tactics or intentional delay.
III.
Discussion
A.
Stay-and-Abeyance
hlunter asks the Court to stay these proceedings and hold them in
abeyance while he litigates new and/or bolstered claims, discovered for the first
time during these proceedings, in the state courts. Specifically, Hunter intends to
file in the state trial court a motion for new trial pursuant to Ohio R. Crim. P.
33(B), and/or a successive postconviction action pursuant to Ohio Rev. Code
§ 2953. 23. ECF No. 127, at PAGEID# 7270 (motion for new trial); ECF No. 128,
at PAGEID # 7316 (successive postconviction petition).
The questions before the Court, in determining whether stay-andabeyance is warranted under Rhines, are whether Hunter's unexhausted claims
are plainly meritless, whether Hunter has shown good cause for his failure to
exhaust these claims earlier, and whether there is any indication that Hunter is
engaged in intentionally dilatory tactics. Rhines, 544 U. S. at 277. These
questions are easily answered in favor of stay-and-abeyance.
Hunter's new claims are not plainly meritless. As Hunter asserts, and the
Warden does not argue otherwise, "[i]n granting discovery, this Court has already
acknowledged Hunter 'has demonstrated good cause for his discovery requests
concerning injuries Trustin suffered in 2004, as well as the rectal injuries that
Trustin exhibited in connection with his 2006 fatal injuries that formed the basis
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for the State charging Petitioner with rape. '" ECF No. 128, at PAGEID # 7312
(quoting Opinion and Order, ECF No. 96, at PAGEID # 7128). And in finding
good cause to allow Hunter to amend his petition, ECF No. 129, this Court
necessarily found that Hunter's new claims were not plainly meritless. As Hunter
convincingly posits, "the new evidence at issue in this case D strongly supports
Hunter's argument that he is innocent and that no crime occurred. " ECF No.
128, at PAGEID # 7313 (emphasis added).
The Court further finds that there is good cause for Hunter's failure to
exhaust his new and amended claims earlier. First, it was not until this Court
granted him discovery that he was able to obtain the new facts and evidence
underlying his unexhausted claims. Additionally, the state's alleged failure to
disclose favorable evidence and alleged presentation of false or misleading
testimony undermined Hunter's ability to exhaust his new claims earlier.
Finally, there is no evidence whatsoever that Hunter is, or has ever,
engaged in intentionally dilatory tactics. And the Warden does not argue
otherwise.
In view of the foregoing, the Court is satisfied that stay-and-abeyance is
warranted. This case will be stayed and held in abeyance in the sense that no
further action will be taken for the duration of Hunter's state-court litigation. But
the Court intends to keep this case administratively open in order to facilitate any
further requests for discovery, or other discovery management, that may become
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necessary.
B.
Motion to Authorize Habeas Counsel
Hunter also requests authorization for his federal habeas counsel to
represent him in filing a motion for new trial and/or a petition for postconviction
relief in state court to exhaust the unexhausted claims he added to his petition.
ECF No. 128, at PAGE! D # 7314. Specifically, Hunter requests that his
appointed habeas counsel, attorneys Erin Barnhart and Justin Thompson, be
authorized to continue their representation of Hunter along with two other
attorneys, Al Gerhardstein and Sarah Gelsomino, who have committed to
representing Hunter in state court. Id. Hunter reasons that continuity of counsel
is important here, both because of the time and effort habeas counsel have put
into developing these new claims and to aid habeas counsel's ability to navigate
the resumption of these proceedings should Hunter's case return to this Court.
Section 3599(a)(2) of Title 18 of the United States Code entitles those
seeking habeas relief from a death sentence under § 2254 to the "appointment of
one or more attorneys. " Subsection (e) defines the scope of appointed counsel's
representation as follows:
[E]ach attorney so appointed shall represent the defendant
throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial,
appeals, applications for writ of certiorari to the Supreme Court of
the United States, and all available post-conviction process, together
with applications for stays of execution and other appropriate
motions and procedures, and shall also represent the defendant in
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such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant.
18U. S. C. §3599(e).
In Harbison v. Bell, the Supreme Court held that representation in state
clemency proceedings is within the scope of representation authorized by
§ 3599(e) for counsel appointed in accordance with § 3599(a)(2). 556 U. S. 180,
185-86 (2009). Although the Court found that the plain language of the statutory
text does not limit appointed counsel's representation to only federal
proceedings, the Court also emphasized that the scope of authorization is
confined to "subsequent stage[s] of available judicial proceedings. " Id. at 189-90.
Because state postconviction proceedings typically precede federal habeas
proceedings, they are not encompassed within the statute's provision for any
"subsequent stage" of "available post-conviction process. " The fact that state
postconviction litigation can follow federal habeas when a petitioner pursues it to
exhaust unexhausted claims is not enough to transform state postconviction into
a stage "subsequent" to habeas. Id. at 190. But the Court identified an
exception to that principle: exhaustion of a previously unexhausted habeas
claim, where deemed appropriate by the district court, would be covered by the
catch-all provision for representation in "other appropriate motions and
procedures. " Id. at 190 n. 7.
The Sixth Circuit has construed Harbison to hold that § 3599 applies to
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state proceedings only when adequate representation is not otherwise available.
Irick v. Bell, 636 F. 3d 289, 291 (6th Cir. 2009) (denying federally funded attorney
to reopen state postconviction proceedings because state law already affords the
petitioner adequate representation for that litigation); see a/so Hill v. Mitchell,
Case No. 1:98-cv-452, 2009 WL 2898812, at *5 (S. D. Ohio Sep. 4, 2009)
(denying use of federal habeas counsel for state Atkins hearing because state
law already provides for appointed counsel in Atkins hearings). The Sixth Circuit
has also found representation by federal habeas counsel in state postconviction
proceedings inappropriate when the federal habeas proceedings have concluded
or the claims to be raised in state court are not reviewable in habeas corpus.
See Hand v. Houk, 826 F. App'x 503, 507-08 (6th Cir. 2020) (not permitting
federally funded attorney to reopen exhausted claim in state court after federal
habeas proceedings have concluded); see a/so Lindsey v. Jenkins, Case No.
1.-03-CV-702, 2017 WL 4277201, at *2 (S. D. Ohio Sep. 26, 2017) (rejecting
federally funded counsel ability to exhaust Hurst claim in state court when the
motion to amend the habeas petition to add the Hurst claim was denied). The
district court in Lindsey explained:
[A] federal court may "exercise its discretion in appointing federal
habeas counsel to represent their client in state postconviction
proceedings when the state petition raises issues that are or will be
pleaded in a habeas petition so long as those issues are cognizable
in habeas corpus and have not been previously submitted to the
state court, unless the state court itself provides for representation."
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/'
Lindsey, 2017 WL 4277201, at *2 (quoting Conway v. Houk, Case No. 3:07-cv345 (S. D. Ohio July 8, 2015) (ECF No. 219. at PAGEID # 15605)).
The foregoing establishes that, in the Sixth Circuit, continued
representation by appointed habeas counsel in state court is appropriate in cases
both where a Rhines stay-and-abeyance is warranted to allow the exhaustion of
unexhausted habeas claims and where state law does not provide for
appointment of counsel. See, e. g., Conway v. Houk, 2013 WL 6170601, at *3;
Gapen v. Bobby, Case No. 3:08-cv-280, 2013 WL 5539557, at *4-5 (S.D Ohio
Oct. 8, 2013). Those circumstances are present here.
The Court has already determined that hlunter satisfies the requirements
for stay-and-abeyance to exhaust new claims. The Court has yet to adjudicate
his habeas corpus petition, and the litigation he intends to initiate in the state trial
court directly implicates this Court's ability to review his first, second, fourteenth,
twenty-second, and twenty-third claims for relief. Further, state law does not
appear to provide for the appointment of counsel for the pursuit of a motion for
new trial or a successive postconviction petition. See, e. g., Gapen, 2013 WL
5539557, at *4-5 (finding no entitlement under Ohio for appointment of counsel to
pursue motion for new trial); Conway, 2013 WL 6170601, at *3 (acknowledging
statutory right to counsel for initial, timely postconviction petition). Accordingly,
Hunter's request to authorize habeas counsel to represent him in state court is
well taken.
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IV.
Conclusion
For the foregoing reasons, Hunter's Unopposed Motion to Stay and to
Authorize Habeas Counsel, ECF No. 128, is GRANTED.
Hunter has 90 days from the date of this order to file his motion for new
trial or successive postconviction petition in the state trial court. Through the
duration of the litigation, Hunter shall file with this Court quarterly status reports
detailing the progression of the litigation. Should Hunter be denied relief in the
state courts, Hunter shall have 30 days from the latest decision by the Supreme
Court of Ohio denying him relief to seek reinstatement of this case to the Court's
active docket.
The Clerk is DIRECTED NOT to enter the "stay flag" on the docket, as this
case is to remain open to facilitate any further discovery requests or other
discovery management that may become necessary.
IT IS SO ORDERED.
MICHAEL H. WA SON, JUDGE
UNITED STATES DISTRICT COURT
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