Monroe v. Warden Ohio State Penitentiary
OPINION AND ORDER OVERRULING Respondent's Objections 180 and 184 . The Court AGREES with and ADOPTS the Magistrate Judge's 8/17/2017 Decision and Order 177 and 9/18/2017 Supplemental Memorandum Opinion 183 . Signed by Judge Sarah D. Morrison on 11/2/2020. (tb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:07-cv-258
Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz
WARDEN, OHIO STATE
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending
before this Court 1 a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter
is before the Court on the following documents:
ECF No. 167 – Petitioner’s Second Motion to Stay Proceedings
and Hold Case in Abeyance;
ECF No. 168 – Respondent’s Response in Opposition;
ECF No. 169 – Petitioner’s Reply in Support;
ECF No. 177 – Decision and Order Granting in Part and
Denying in Part Petitioner’s Second Motion to Stay and Hold
Case in Abeyance;
ECF No. 180 – Respondent’s Objections;
ECF No. 182 – Petitioner’s Response;
The instant case was reassigned from the Honorable Michael H. Watson to the Honorable
Edmund A. Sargus, Jr., upon Judge Watson’s September 17, 2012, order of recusal (ECF No. 80), and
from Judge Sargus to the undersigned on June 20, 2019 (ECF No. 199). Additionally, this case was
reassigned from Magistrate Judge Terence P. Kemp to Magistrate Judge Michael R. Merz on May
19, 2010 (ECF No. 41).
ECF No. 184 – Respondent’s Objections; and
ECF No. 183 – Supplemental Memorandum Opinion on
Petitioner’s Second Motion to Stay and Hold Case in Abeyance;
ECF No. 185 – Petitioner’s Response.
The procedural history concerning factual development in this case is
protracted and complex. It is sufficient for purposes of addressing Respondent’s
objections to note that, following a decision allowing Petitioner to conduct certain
discovery (ECF No. 82), as well as additional motion practice concerning Petitioner’s
requests for supplemental discovery, to expand the record, and for an evidentiary
hearing, Petitioner was partially granted leave to amend his habeas petition to add
new claims and/or supplement existing claims on the basis of information he
learned during discovery (ECF Nos. 146, 158, 159, and 160). Petitioner then asked
the Court to stay these proceedings and hold the case in abeyance so that he could
return to the state courts “to exhaust new evidence and new claims which were only
uncovered during discovery in this habeas case.” (ECF No. 167, at PageID 8241.)
In the August 17, 2017 Decision and Order (ECF No. 177), and September 18,
2017 Supplemental Memorandum Opinion (ECF No. 183), the Magistrate Judge
granted in part and denied in part Petitioner’s motion to stay. Specifically, the
Magistrate Judge concluded that Petitioner had satisfied the standard for stay-andabeyance as to amended claims: 8(B), in which Petitioner alleges ineffective
assistance of counsel for the failure to present an alibi defense and the trial court’s
commission of plain error in accepting counsel’s decision; 9(A), asserting penaltyphase ineffective assistance of counsel for the failure to thoroughly investigate
Petitioner’s background and mental health history; 9(B), alleging penalty-phase
ineffective assistance in connection with Petitioner’s un-counseled and thus
involuntary decision to waive the presentation of mitigation testimony; and 9(F), in
which Petitioner alleges penalty-phase ineffective assistance for the failure to hire a
cultural or other mental health expert to explain the effects of being transplanted
from West Virginia to Columbus, Ohio’s crime-and-drug culture. Respondent filed
objections to both decisions. (ECF Nos. 180 and 184.) In the meantime, Petitioner
filed a successor postconviction action in the state courts (ECF No. 188), and the
parties have filed regular joint status reports about the progress of the
postconviction action—the most recent of which indicates that, as of August 19,
2020, the postconviction action remains pending in the Franklin County Court of
Common Pleas (ECF No. 203).
It appears that between the filing of Respondent’s objections and the
reassignment of this case, Respondent’s objections went unaddressed. The Court
addresses them now, and, for the reasons that follow, OVERRULES the objections
and ADOPTS the Magistrate Judge’s decisions staying this case while Petitioner
attempts to exhaust state court remedies.
STANDARDS OF REVIEW
The standard governing stay and abeyance was set forth by the Magistrate
Judge in his August 17, 2017 Decision and Order. (ECF No. 177, at Page ID # 83973
98.) The Court agrees with and adopts the Magistrate Judge’s discussion in full,
notwithstanding Respondent’s suggestion that the Sixth Circuit’s decision in Carter
v. Mitchell, 829 F.3d 455, 467 (6th Cir. 2016) somehow supplants the Supreme
Court’s decision in Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 180, at PageID
8412-13; ECF No. 184, at PageID 8439.) Rhines established a three-part test for
determining whether stay and abeyance is warranted as to a mixed habeas petition
containing both exhausted and unexhausted claims. Although, as the Court will
discuss further below, Carter is relevant, it is Rhines that governs motions to stay
vis-à-vis mixed petitions.
The standard governing a district court’s review of a Magistrate Judge’s
decisions on non-dispositive motions was also set forth by the Magistrate Judge in
his August 17, 2017 Decision and Order. (ECF No. 177 at Page ID # 8392.) This
Court will review the Magistrate Judge’s August 17, 2017 Decision and Order (ECF
No. 177) and September 18, 2017 Supplemental Memorandum Opinion (ECF No.
183) under the “clearly erroneous or contrary to law” standard.
As to any constitutional claim that the state courts adjudicated on the merits,
habeas corpus relief is not warranted unless the state court adjudication was
contrary to, or involved an unreasonable application of, clearly established federal
law as determined by the Supreme Court. 28 U.S.C. § 2254(d). In Cullen v.
Pinholster, 563 U.S. 170 (2011), the Supreme Court held that when determining
whether a state court decision contravened or unreasonably applied federal law as
set forth in § 2254(d), a federal court is limited to the record that the state court had
before it when it adjudicated the petitioner’s claims. As the Magistrate Judge
correctly observed, “[b]ecause 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,
but must present or attempt to present them to the state courts first.” (ECF No.
177, at PageID 8399.)
In the wake of Pinholster, courts within this district have struggled with how
to handle evidence uncovered for the first time during habeas discovery. To the
extent that many have opted to utilize Rhines’s stay-and-abeyance procedure, this
Court views that approach not so much as an end-run around Pinholster, as
Respondent asserts, but just as likely an earnest attempt to heed Pinholster by
affording the state courts the first opportunity to address the bolstered claims and
new evidence. Under the appropriate circumstances, it appears that a return to the
state courts not only honors the principles of comity by giving state courts the first
opportunity to address bolstered claims and new evidence; but also offers the best
chance, though by no means a guarantee, for a federal court to be able to consider
the new evidence supporting the bolstered claims.
The Court also recognizes, however, that return trips to state court cannot go
on in perpetuity, or finality, in which states have a valid interest, will never be
achieved. Where, as here, the Court is faced with a mixed petition and Respondent
does not waive exhaustion, no hard and fast rule for or against stay-and-abeyance
seems appropriate. Rather, courts must strive to achieve a balance. Where to
strike that balance is a work-in-progress, is inarguably dependent on the facts of
each case, and need not be resolved at this time. The only question before the Court
today is whether the Magistrate Judge’s decision to stay these proceedings to allow
Petitioner’s first return-trip to the state courts was clearly erroneous or contrary to
law. It was not.
Of course, none of this grappling would be necessary if Ohio courts were not
so consistently averse to allowing factual development during initial postconviction
proceedings. That is a treatise for another day, albeit, a clarion call that largely has
fallen on deaf ears, both in the Ohio courts and the Sixth Circuit. See, e.g., Coleman
v. Mitchell, 268 F.3d 417, 427-28 (6th Cir. 2001) (reaffirming that Ohio’s
postconviction process is an adequate state remedy despite allegations that Ohio
courts routinely deny requests for factual development) (discussing Keenor v.
Ridenour, 594 F.2d 581 (6th Cir. 1979); Riggins v. McMackin, 935 F.2d 790 (6th Cir.
1991); Rust v. Zent, 17 F.3d 155 (6th Cir. 1994)). So while this Court is aware that
some courts invoke Pinholster to deny discovery requests—see, e.g. Davis v. Bobby,
Case No. 2:10-cv-107, 2017 WL 2544083, at *2-5 (S.D. Ohio June 13, 2017)
(collecting cases), aff’d, Case No. 2:10-cv-107, ECF No. 139—this Court is not
prepared to embrace wholesale Respondent’s position that discovery should never be
granted on any claim that the state courts adjudicated on the merits. (ECF No. 184,
at PageID 8439.) And, having allowed discovery here, the best chance for this Court
to be able to consider Petitioner’s bolstered claims and new evidence, not to mention
the best way for honoring the principles of comity and federalism that form the
bedrock of the shared role that state and federal courts play in safeguarding
constitutional rights, is to give the state courts a chance—the first chance—to
address these bolstered claims and new evidence.
In Carter v. Mitchell, 829 F.3d at 465–76, the Sixth Circuit found no abuse of
discretion in the district court’s denial of a stay where what the petitioner sought to
exhaust in the state courts was not new claims, just new evidence. In partially
allowing Petitioner’s motion to amend his petition, the Magistrate Judge
characterized Petitioner’s new allegations as “claims,” with which the Court tacitly
agreed out of an abundance of caution (ECF No. 158, at PageID 8017). As for
Respondent’s contention that Petitioner, like Carter, presents only new evidence,
not new claims, the Magistrate Judge, in his decision partially allowing
amendment, explicitly distinguished between the addition of new facts learned
during habeas discovery that create “new” claims, and new evidence learned during
habeas discovery that may create “new” claims. (ECF No. 146, at PageID 7860.)
Strictly speaking, Pinholster and Carter speak to the latter, not the former.
Moreover, because it is not possible to know at this stage how the state courts will
handle the bolstered claims that Petitioner is attempting to exhaust, nothing about
this decision should be construed as a guarantee that the Court ultimately will be
able to consider new evidence discovered for the first time during these habeas
proceedings. That will depend on how the state courts resolve Petitioner’s
successive postconviction action. See Dunlap v. Paskett, Case No. 1:99-cv-559, 2019
WL 1274862 (S.D. Ohio Mar. 20, 2019) (denying leave to amend claims that were
“new” only in the sense that they were bolstered by new evidence and that the state
courts did not consider due to the petitioner’s failure to satisfy the § 2953.23(A)(1)
jurisdictional requirements for filing a successive postconviction petition); but see
Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014) (affirming district court’s decision
granting relief on a newly discovered Brady claim even after the state courts
determined under Ohio Revised Code § 2953.23(A)(1) that they did not have subject
matter jurisdiction to consider the claim). And because the decision of whether to
issue a stay must be made on a case-by-case basis, nothing about this decision
should be construed as a guarantee of how the Court will handle requests to stay in
the future. That will depend on the nature of the proposed claims.
For the foregoing reasons, the Court finds no clear error or contravention of
law in the Magistrate Judge’s characterization of Petitioner’s proposed amendments
as “claims.” The Court OVERRULES Respondent’s objection that because
Petitioner presents merely new evidence, as opposed to new claims, the decision to
stay these proceedings was clearly erroneous or contrary to law.
The foregoing brings the Court to Respondent’s second objection—namely,
that the Magistrate Judge clearly erred in staying these proceedings when
Petitioner has no state court remedies available to him. The Magistrate Judge
concluded that Petitioner could attempt to present his bolstered claims to the state
courts in a successive postconviction action and/or a delayed motion for a new trial.
(ECF No. 177, at PageID 8398; ECF No. 183, at PageID 8430–31.) Respondent
argues that because Petitioner will not be able to satisfy the standards for filing a
successive postconviction action or a motion for a new trial, those are not “available
remedies,” rendering Petitioner’s amended claims exhausted but procedurally
defaulted. (ECF No. 180, at PageID 8407–10; ECF No. 184, at PageID 8441–44.)
This Court does not disagree with the Magistrate Judge’s conclusion, much less find
it clearly erroneous or contrary to law. The fact that Ohio courts largely have been
unwilling to reach the merits of new or bolstered claims discovered during federal
habeas proceedings does not establish definitively that the state courts in
Petitioner’s case will do the same. See Banks v. Jackson, 149 F. App’x 414, 418–19
(6th Cir. 2005) (“On the other hand, a federal habeas court must exercise caution
when deciding, without the benefit of the state’s view, whether a state procedural
rule would bar in state court a claim that the habeas petitioner is pressing for the
first time in federal court. Therefore, unless it is clear that the state court would
not consider the merits of a petitioner’s unexhausted claim, the claim is not
procedurally defaulted.”) (citing Gray v. Netherland, 518 U.S. 152, 161–62 (1996);
Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004)). See also Cunningham v.
Hudson, 756 F.3d 477, 485 (6th Cir. 2014) (same). Stated another way, the fact that
procedural hurdles may exist to a prisoner’s ability to pursue state court remedies
does not render those remedies nonexistent or unavailable. See, e.g., El v. Miller,
No. 1:11-cv-2342, 2012 WL 3067365 (N.D. Ohio June 29, 2012) (“A remedy is
‘available’ if the petitioner has the legal right ‘to raise, by any available procedure,
the question presented.’”). Any attempt by a federal court to predict or assume how
state courts will resolve state-law questions is an affront, not a nod, to the principle
of comity. The Court OVERRULES this objection.
Respondent asserts in his final objection that the Magistrate Judge
committed clear error and a violation of law in failing to properly assess whether
the amended claims upon which Petitioner was granted a stay were potentially
meritorious, as required by Rhines. (ECF No. 180, at PageID 8410–11; ECF No.
184, at PageID 8444–46.) The Magistrate Judge found that he had already
determined that Petitioner’s proposed claims were potentially meritorious when he
determined (and the Court agreed) that the proposed amendments were warranted;
otherwise, the proposed amendments would have been denied as futile. (ECF No.
177, at PageID 8398; ECF No. 183, at PageID 8432.) The Court agrees.
Rhines cautioned that a “district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.” Rhines, 544
U.S. at 277 (emphasis added). Pursuant to the standards governing amendment,
motions to amend should be granted if, among other things, the facts and
circumstances underlying the proposed amendments form a proper subject of relief
and the amendment would not be futile. Fed. R. Civ. P. 15(a); Foman v. Davis, 371
U.S. 178, 182 (1962). When a court allows amendment, that court has necessarily
determined that the proposed amendment may be a proper subject for relief and
would not otherwise be futile. The Court thus agrees that the Magistrate Judge’s
consideration of those factors satisfies Rhines’s “plainly meritless” determination.
Moreover, the Court is independently satisfied that the amended claims at issue—
grounds 8(B), 9(A), 9(B), and 9(F)—are not plainly meritless. The Court thus
OVERRULES this objection.
For the foregoing reasons, the Court OVERRULES Respondent’s objections
(ECF Nos. 180 and 184). The Court AGREES with and ADOPTS the Magistrate
Judge’s August 17, 2017 Decision and Order (ECF No. 177) and September 18, 2017
Supplemental Memorandum Opinion (ECF No. 183).
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE
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