Long v. Warden, Pickaway Correctional Institution

Filing 42

SUPPLEMENTAL MEMORANDUM OPINION ON DISCOVERY ISSUES signed by Magistrate Judge Michael R. Merz on 3/12/2025. (kpf)(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
JOHN WILLIAM LONG,
Petitioner,

:

- vs -

Case No. 1:23-cv-714
District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz

WARDEN, Pickaway Correctional
Institution,
:
Respondent.

SUPPLEMENTAL MEMORANDUM OPINION ON DISCOVERY
ISSUES

This habeas corpus case, filed pro se by Petitioner John William Long to obtain relief from
his conviction for murder, is before the Court on Petitioner’s Objections (ECF No. 40) to the
Magistrate Judge’s Decision and Order (ECF No. 37) denying Petitioner’s Motions to Expand the
Record (ECF No. 34) and Amended Request to Conduct Discovery (ECF No. 33). After filing
these two motions, Petitioner also filed a Motion for Evidentiary Hearing (ECF No. 38) which the
undersigned has also denied (ECF No. 39). This ruling has also evoked an objection from
Petitioner (ECF No. 41). Petitioner’s theory supporting discovery and an evidentiary hearing are
parallel and this Supplemental Memorandum is intended assist in resolving the issues raised.
The undersigned has denied expansion of the record, an evidentiary hearing, and the
discovery sought by Petitioner because they would of necessity produce “new” evidence –
evidence not before the Ohio courts which decided Petitioner’s case. The undersigned found
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admission of such evidence to be barred by Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster
bars a federal court “from admitting new evidence upon which to assess the reasonableness of a
state court's constitutional analysis.” Upshaw v. Stephenson, 97 F. 4th 365, 372 (6th Cir. 2024),
quoting Mitchell v. Genovese, 974 F.3d 638, 647 (6th Cir. 2020).
Petitioner disagrees and asserts
Long argues that although Pinholster does limit the courts review of
"new evidence" admitted during habeas proceedings, Pinholster
does not impose a complete bar on a federal habeas court to allow
the admittance of new evidence. Pinholster does impose a limited
window in which new evidence can be admitted into habeas
proceedings. The Court stated that "Section 2254(e)(2) continues to
have force where 2254([d]1) does not bar federal habeas relief. For
example, not all federal habeas claims by state prisoners fall within
the scope of § 2254([d]1) which applies only to claims "adjudicated
on the merits in State court proceedings." At a minimum, therefore,
§ 2254(e)(2) still restricts the discretion of federal habeas courts to
consider new evidence when deciding claims that were not
adjudicated on the merits in state court. See, e.g., Michael Williams,
529 U.S. at 427-429. 120 S. Ct. 1479.146 L. Ed. 2d 435. The claim
that Long is attempting to develop is an "actual innocence" claim
that was presented to the state court, but never adjudicated on the
merits. State v. Long, 2023 Ohio 132 at *P301. (Doc. 20l:PAGElD#1760).
(Objections, ECF No. 40, PageID 3210; emphasis sic).
In the cited decision, the First District Court of Appeals affirmed the trial court’s denial of
Long’s motion for a new trial.

In the course of doing so, the court wrote regarding his actual

innocence claim:
{¶30} Long argues that he was entitled to an evidentiary hearing on
his motion for a new trial based on his actual-innocence claim
because he demonstrated substantive grounds for relief. “Crim.R.
33(A) does not mandate an evidentiary hearing on a motion for a
new trial.” State v. Hill, 1st Dist. Hamilton No. C-180114, 2019Ohio-365, ¶ 69. But a common pleas court may exercise its
discretion to hold a hearing. Id. at ¶ 70. Long contends that he
proved that the blood found on the victim's pants was not his blood
and this presents “clear and convincing evidence” in support of his
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actual innocence. As noted above, there is no evidentiary support for
Long's conclusion that the state suppressed an exculpatory DNA test
result, and even if he was excluded as a contributor, this result would
not be exculpatory in this particular case, given the other evidence
at trial establishing his guilt. Long has not demonstrated substantive
grounds for relief, and the court did not abuse its discretion in failing
to hold a hearing on Long's motion for a new trial.
State v. Long, supra, at ¶ 30. Thus the First District did decide Long’s “actual innocence” claim
on the merits and held he had not proved that claim. That decision of the First District must be
evaluated under 28 U.S.C. § 2254(d)(1); the issue is whether that decision is or is not a reasonable
application of Supreme Court precedent as of the date it was decided, January 18, 2023.
Having failed to persuade the Ohio courts of his actual innocence on the basis of the new
evidence he had discovered at the time of the state court proceedings, he seeks to use federal court
discovery process to search for more new evidence which he then would attempt to present to the
Ohio courts, again in support of a claim of actual innocence. He confirms this intended use of the
fruits of discovery in his Objections (ECF No. 40, PageID 3211).
A habeas petitioner or § 2255 movant is not entitled to discovery as a matter of course, but
only upon a fact-specific showing of good cause and in the Court’s exercise of discretion. Rule
6(a), Rules Governing § 2254 Cases; Rule 6(a), Rules Governing § 2255 Cases; Bracy v. Gramley,
520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286 (1969); Byrd v. Collins, 209 F.3d 486, 51516 (6th Cir. 2000).
Before determining whether discovery is warranted, the Court must first identify the
essential elements of the claim on which discovery is sought. Bracy, 520 U.S. at 904, citing United
States v. Armstrong, 517 U.S. 456, 468 (1996). The burden of demonstrating the materiality of
the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.
2001), cert. denied, 537 U.S. 831 (2002), citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir.

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2000). “Even in a death penalty case, ‘bald assertions and conclusory allegations do not provide
sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary
hearing.’” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003), cert. denied, 543 U.S. 842 (2004),
quoting Stanford, 266 F.3d at 460.
Petitioner’s Amended Petition does not plead a claim for habeas relief on the basis of his
asserted actual innocence of the crimes of which he was convicted. If Long now sought to amend
his petition again to state such a claim, the Court would not allow it because a habeas petitioner is
not entitled to habeas relief on the basis of actual innocence alone. Herrera v. Collins, 506 U.S.
390, 408-11 (1993). Proof of actual innocence in a habeas case is relevant only to excuse
procedural default or some other procedural bar to decision on the merits. McQuiggin v. Perkins,
569 U.S. 383 (2013).
Because discovery in a habeas case is available only in support of cognizable habeas
claims, it is not available in support of a substantive federal stand-alone claim of actual innocence
because no such claim is cognizable in habeas corpus. It follows that federal habeas discovery
cannot be available to support a state claim of actual innocence, whatever its legal basis.
The expected process in habeas cases is that a petitioner will have developed relevant
evidence in state court proceedings and the federal habeas court will decide the case on the basis
of evidence already presented to the state courts. Petitioner’s various attempts to use the federal
discovery and record expansion process would turn that expected process on its head, using federal
process to gather evidence to present to the state courts. Petitioner’s attempts to proceed in that
way have been appropriately overruled.
March 12, 2025.
s/ Michael R. Merz
United States Magistrate Judge
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