Monroe v. Warden Ohio State Penitentiary

Filing 129

SUPPLEMENTAL OPINION ON MOTIONS FOR EVIDENTIARY HEARING AND TO EXPAND THE RECORD - The Magistrate Judge remains persuaded that Monroe's motions for evidentiary hearing and to expand the record were properly denied under Pinholster. Signed by Magistrate Judge Michael R Merz on 10/6/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JONATHON D. MONROE,
:
Petitioner,

Case No. 2:07-cv-258
:

District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vsWARDEN, Ohio State Penitentiary,
:
Respondent.

SUPPLEMENTAL OPINION ON MOTIONS FOR EVIDENTIARY
HEARING AND TO EXPAND THE RECORD

This capital habeas corpus case is before the Court on Petitioner’s Objections (Doc. No.
123) to the Magistrate Judge’s Decision and Order Denying Petitioner’s Motions to Expand the
Record and for Evidentiary Hearing (the “New Evidence Decision,” Doc. No. 120). Respondent
has filed a Response to the Objections under Fed. R. Civ. P. 72 (Doc. No. 126) and Judge Sargus
has recommitted the matter for supplemental analysis (Doc. No. 124).
Monroe asserts the New Evidence Decision is clearly erroneous and/or contrary to law
(Doc. No. 123 at PageID 7396, citing United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001)).
Curtis involved a magistrate judge’s conducting a preliminary supervised release revocation
proceeding under Fed. R. Crim. P. 32.1, but the Sixth Circuit confirmed generally that the
standard for review of magistrate judge decisions on nondispositive motions is “clearly
erroneous or contrary to law.” Id.
Monroe’s argument that the New Evidence Decision is contrary to law focuses heavily on
the decision’s citation of Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013), in which the court
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intimated, without deciding, that the Supreme Court’s decision in Cullen v. Pinholster, 563 U.S.
___, 131 S. Ct. 1388 (2011), used jurisdictional language to describe the bar of hearing new
evidence in federal habeas on claims decided on the merits in state court. Monroe emphasizes
that Moore did not decide the bar was jurisdictional and its language about jurisdiction was
dictum (Objections, Doc. No. 123, PageID 7396). Monroe relies heavily on Allen v. Parker, 542
Fed. Appx. 435 (6th Cir. 2013), for the proposition that the bar is not jurisdictional.
The Magistrate Judge agrees that the jurisdictional language in Moore is indeed dictum,
as Judge Boggs made clear in Allen. The Allen court went on to decide that § 2254(d)(1) is not
jurisdictional. But the Allen court went on to hold § 2254(d)(1) is mandatory, even though nonjurisdictional. The court explained:
Section § 2254(d)(1) is therefore nonjurisdictional.
It is important to note that this does not mean that either §
2253(c)(2) or § 2254(d)(1) are not mandatory. Indeed, one of the
crucial inferences taken from Gonzalez is that there is a distinction
between a "mandatory" provision and a "jurisdictional" provision.
While all jurisdictional provisions are mandatory, not all
mandatory provisions are jurisdictional. See 132 S. Ct. at 651
("This Court, moreover, has long rejected the notion that all
mandatory prescriptions, however emphatic, are . . . properly typed
jurisdictional." (internal quotation marks omitted)). Though not
jurisdictional, mandatory provisions must still be followed. See
ibid. ("If a party timely raises the COA's failure to indicate a
constitutional issue, the court of appeals panel must address the
defect . . . ." (emphasis added)). However, mandatory
nonjurisdictional provisions do not strip courts of their ability
consider an issue in the same way that mandatary jurisdictional
provisions do.
B
While mandatory nonjurisdictional provisions are not categorically
unwaivable, this does not mean that they are categorically
waivable. Some mandatory provisions, such as AEDPA's one-year
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statute of limitation, are subject to deliberate abandonment by the
state. Wood, 132 S. Ct. at 1834-35. Others, such as the deferential
standard of review under § 2254(d)(1), may not be forfeited or
waived. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); see
also K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th
Cir. 1996) (holding that the standard of review is a determination
that the court makes for itself). We recently held the evidentiary
restricts of Pinholster are similarly unwaivable. Moore, 708 F.3d at
784.
542 Fed. Appx. at 440-41. Allen supports rather than undercuts the Magistrate Judge’s denial of
an evidentiary hearing.
Monroe also relies on this Court’s post-Pinholster grant of an expansion of the record in
Hill v. Mitchell, 2013 U.S. Dist. LEXIS 45919 (S.D. Ohio 2013). However, this Court is bound
by Moore, supra, as reinforced by Allen, supra.1
Monroe argues at length that he was diligent in attempting to develop the record in the
state courts and was denied any discovery there. He goes so far as to argue that denying him
expansion of the record amounts to a suspension of the writ (Objections, Doc. No. 123, PageID
7401). The place for that argument is in the Supreme Court, which has not recognized a statecourt-diligence exception to Pinholster.
Monroe also relies on Moore v. Secretary Penn. Dept. of Corrections, 457 Fed. Appx.
170 (3rd Cir. 2012). That opinion is not binding precedent even in the Third Circuit. See Third
Circuit Internal Operating Procedure Rule 5.7. It cannot be relied on by this Court to recognize
an exception to Pinholster which the Sixth Circuit has not recognized.

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The Hill decision does not advert to Moore.

3

The Magistrate Judge remains persuaded that Monroe’s motions for evidentiary hearing
and to expand the record were properly denied under Pinholster.
October 6, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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