Monroe v. Warden Ohio State Penitentiary

Filing 183

SUPPLEMENTAL MEMORANDUM OPINION ON PETITIONERS SECOND MOTION TO STAY AND HOLD CASE IN ABEYANCE- Based on the foregoing analysis, the Wardens Objections should be OVERRULED. re 180 . Signed by Magistrate Judge Michael R. Merz on 9/18/17. (kma)

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
:

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

-vsMARK HOUK, Warden,
Ohio State Penitentiary,
:
Respondent.

SUPPLEMENTAL MEMORANDUM OPINION ON PETITIONER’S
SECOND MOTION TO STAY AND HOLD CASE IN ABEYANCE

This capital habeas corpus case is before the Court on Petitioner=s Second Motion to Stay
and Hold Case in Abeyance (ECF No. 167). The Magistrate Judge granted the Motion in part
(the “Decision,” ECF No. 177). Respondent filed Objections (ECF No. 180) to which Petitioner
has responded (ECF No. 182). Petitioner, on the other hand, did not object to any part of the
Decision adverse to his claims and those portions may be adopted without further analysis.
Chief Judge Sargus recommitted the matter for a supplemental memorandum opinion analyzing
the Objections and Response (ECF No. 181).
Petitioner seeks a stay so that he can present to the Ohio courts “new evidence and new
claims which were only uncovered during discovery in this habeas case.” (Motion, ECF No.
167, PageID 8241.) The claims sought to be exhausted are detailed in the Decision (ECF No.
177, PageID 8394-96).
The Decision read Monroe’s Response to Respondent’s Supplemental Brief as a

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withdrawal of any request for stay to permit further presentation of Ground 10 to the Ohio courts
and did not discuss Ground 10. Monroe did not object to that reading of his papers.
The Decision noted the amendments to the Petition allowed by Chief Judge Sargus and
his overruling of Petitioner’s Objections to sustaining Judge Watson’s determination that
Grounds for Relief One, Four, Six, Seven, and Eight (A) were barred by procedural default (ECF
No. 177, PageID 8396-97).

Objections

The Warden begins his Objections with a general censure of this Court’s remand
practices:
Capital petitioners in the District Court for the Southern District of
Ohio have been permitted to waste judicial resources in conducting
discovery on claims for which this Court can never consider the
newly discovered information, and have been granted repeated
trips back to state court to “exhaust” new “claims” and “evidence.”
Such delay is seldom permitted in the District Court for the
Northern District of Ohio.
(Objections, ECF No. 180, PageID 8405.) The Court is not aware of any case in which a
petitioner has been granted a “repeated trip” back to the state courts. No examples are given,
either of repeated trips or of “correct” decisions by the Northern District.
The Warden asserts that in granting a stay and permitting Monroe to return to state court
to exhaust new claims, “the Magistrate Judge failed to correctly apply the test for the
appropriateness of a stay, and completely ignores binding Sixth Circuit case law.” (Objections,
ECF No. 180, PageID 8405.) The Magistrate Judge agrees with the Warden that, because the
Decision concerns a non-dispositive pre-trial order, review of factual findings is for clear error
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and the “contrary to law” standard applies to legal conclusions.

Possibly Available State Court Remedies

The Warden objects that “[t]he Magistrate Judge erred as a matter of law when he
implicitly found that Monroe had state court remedies available.” (Objections, ECF No. 180,
PageID 8407.) This is so because, the Warden claims, “the state courts will neither permit a
motion for new trial, nor will they entertain a successive petition for post-conviction relief,
because Monroe has been dilatory in raising his claims.” Id.
The Warden points to evidence upon which the state courts could reasonably conclude
that Monroe has been dilatory in raising new claims in the Ohio courts. He cites a number of
filings Monroe has made pro se or through the Ohio Public Defender since 2010. Id. at PageID
8408. None of them were cited in the Warden’s opposition to the Motion to Stay.
More fundamentally, the Warden asserts the state courts will certainly find Monroe has
been too dilatory to be allowed to file a motion for new trial. Perhaps, but that is a decision for
the state courts to make. Ohio recognizes no absolute time limit on filing a motion for leave to
file a motion for new trial. The text of Ohio Crim. R. 33(B), which is unchanged since its
adoption in 1973, sets no time limit on filing a motion for leave to file a delayed motion for new
trial. In State v. Pinkerman, 88 Ohio App. 3d 158 (4th Dist. 1993), the court refused to infer any
time limit on such a motion. In State v. Davis, 131 Ohio St. 3d 1, 6-7 (2011), the Ohio Supreme
Court noted the time limits in the Rule and held Crim.R. 33 does not otherwise limit the time for
filing a motion for a new trial based on newly discovered evidence. Id. at ¶ 27.

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As a matter of federalism, this Court should not be deciding factual questions that will
underlie a state court decision on whether Monroe should be allowed to file a motion for new
trial. The Decision does not purport to decide that Monroe has been diligent But if the decision
on that fact question is so obvious, it should not detain the state court for long. In any event, the
Warden has cited no law which absolutely precludes Monroe from filing for a new trial. If there
were such law, the Magistrate Judge would concede he had acted contrary to law in granting the
stay. But there is not. Dilatoriness is a question of fact which, in this Court’s experience, the
Ohio courts decide on a case-by-case basis. They should be allowed to do so here.
The Warden’s case is stronger with respect to a successive petition for post-conviction
relief (See PageID 8408-10), but the logic is the same. It is for the state courts to decide in the
first instance if Monroe’s evidence is so strong that he has shown “by clear and convincing
evidence” that no reasonable juror would have convicted him and that he was “unavoidably
prevented from discovery of the facts.” He must make that threshold showing before he can file
a successive petition under Ohio Revised Code § 2953.23. But whether he has made that
showing is a question of state law, not federal law.
Federalism is a time-consuming project. For example, before the late Chief Justice
Thomas Moyer and District Judge Walter Rice of this Court collaborated to have the Uniform
Certification of State Law Questions statute made a part of the Ohio rules, litigants with a
controlling state law question in a federal case would have to wait until that question had been
litigated in a separate case. See, e.g., Burford v. Sun Oil Co., 319 U.S. 315 (1943); Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976). If the state courts
find the absence of a remedy as obvious as the Warden does, they can quickly decide those
threshold questions and return to the case to this Court without having intruded unnecessarily in

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their case. The State of course has an interest in achieving finality in this case and carrying out
the sentence imposed on Monroe. But as of the date of this Opinion, the State has execution
dates set through April 21, 2022, and Monroe is not one of those scheduled. There is thus
substantial time available to accommodate the federalism concerns mentioned here and any
execution date likely to be set for Monroe.

Merits of the Claims to be Presented in State Court

All parties agree that the governing standard for granting a stay is enunciated in Rhines v.
Weber, 544 U.S. 269, 277-278 (2005).

The Warden notes that, for Rhines to be applied

correctly, the claims to be heard in the state court cannot be “plainly meritless.” (ECF No. 180,
PageID 8410.) In deciding the claims in question were not plainly meritless, the Magistrate
Judge relied on the Chief Judge’s having allowed the Petition to be amended, including, in some
cases, amendments the Magistrate Judge would not have allowed.
The Warden objects that there was no finding of possible merit in the allowance of the
amendments, but the focus was entirely on timeliness. In ruling on Petitioner’s Objections to the
Decision and Order on Monroe’s Motion to Amend, Chief Judge Sargus adopted in full the
Magistrate Judge’s discussion of the law governing motions to amend habeas corpus petitions
(ECF No. 158). That discussion centered on the leading case, Foman v. Davis, 371 U.S. 178
(1962), which includes considering the possible merits of a proposed amendment. Thus the
Magistrate Judge’s inference that the Chief Judge had considered the merits of the proposed
amendments, at least at the level of plausibility, was not an unreasonable one. The Chief Judge

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remains completely free, on review of this Memorandum Opinion, to reject any of the
amendments he allowed as pleading “plainly meritless” claims.

Impact of Carter v. Mitchell, 829 F.3d 455 (6th Cir. 2016.

The Warden alleges the Decision “completely fails to recognize the binding authority of
Carter v. Mitchell, 829 F.3d 455 (6th Cir. 2016) (Objections, ECF No. 180, PageID 8412).
The undersigned was pleased with the published Carter because it adopted as circuit
precedent the distinction the undersigned had made between unexhausted evidence and
unexhausted claims. The concept of “unexhausted evidence” is unknown to habeas corpus
jurisprudence. Carter v. Mitchell, 2013 U.S. Dist. LEXIS 62231, * 4 (S.D. Ohio May 1,
2013)(Merz, M.J.). As this Court explained in applying Carter,

To extend Rhines to encompass "unexhausted evidence" would
provide virtually limitless opportunities to delay finality in habeas
litigation. Particularly with respect to mitigation evidence, the
ABA Guidelines suggest gathering as much biographical
information as possible. Bobby v. Van Hook, 558 U.S. 4, 7-8, 130
S. Ct. 13, 175 L. Ed. 2d 255 (2009). Virtually anything thus
gathered may be presented in mitigation if arguably relevant.
Buchanan v. Angelone, 522 U.S. 269, 276, 118 S. Ct. 757, 139 L.
Ed. 2d 702 (1998); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 954,
57 L. Ed. 2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102
S. Ct. 869, 71 L. Ed. 2d 1 (1982). Of course the time within which
to gather mitigating evidence before trial is limited, but the time
within which to gather such evidence post-conviction is limited
only by the natural life of the defendant. Assuming diligence in
searching for such evidence, a doctrine of “unexhausted evidence"
would permit delay of finality in habeas for extended periods and
perhaps on a repeated basis.
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Waddy v. Robinson, 2013 U.S. Dist. LEXIS 65092, quoting Carter at *5-6. This Court thus has
no interest in undermining Carter.
Although Carter is not expressly discussed in the Decision, the Magistrate Judge noted
the anomaly created by Cullen v. Pinholster, 563 U.S. 170 (2011):
Because of the Supreme Court’s stringent limitation on evidentiary
hearings in habeas corpus adopted in Cullen v. Pinholster, 563
U.S. 170 (2011), Petitioner is unable to present the results of his
habeas discovery directly to this Court, but must present or attempt
to present them to the state courts first. Pinholster thus has the
unintended consequence of further delaying the finality of habeas
proceedings by allowing a return trip to the state courts.
(Decision, ECF No. 177, PageID 8398.) The AEDPA neither eliminated nor amended the
discovery portion of the Rules Governing § 2254 Cases but does, as interpreted in Pinholster,
prevent presentation of the results directly to the habeas court. It would be faster to present that
evidence directly to the federal court, but Pinholster precludes that. While habeas jurisprudence
does not recognize a stay to present “unexhausted” evidence just because it has never been
presented to the state courts, there must be a mechanism to present new material evidence
discovered in federal habeas. If it cannot be an evidentiary hearing in federal court, the only
alternative, and the one best respecting federalism concerns, is to give the state courts the
opportunity to her that evidence.

While this is not a completely satisfactory theoretical

resolution of the tension between Habeas Rule 6 and Pinholster, the Warden has not shown it is
contrary to law.

Conclusion

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Based on the foregoing analysis, the Warden’s Objections should be OVERRULED.
September 15, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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