Lynch v. Hudson

Filing 101

OPINION AND ORDER - re 92 Brief - Petitioner filed by Ralph Lynch. The Court adheres to its original decision that Pinholster precludes the Court from considering Dr. Gelbort's materials as to any of Petitioner's claims that the state courts adjudicated on the merits. Signed by Judge Gregory L. Frost on 4/21/16. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RALPH LYNCH,
Petitioner,
v.

Case No. 2:07-cv-948
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

STUART HUDSON, Warden,
Respondent.

OPINION AND ORDER
Petitioner is a prisoner sentenced to death by the State of Ohio. On September 28, 2011,
this Court issued final judgment denying Petitioner’s claims and dismissing his action. (ECF
No. 69.) On March 20, 2015, the Court of Appeals for the Sixth Circuit issued an order granting
Petitioner’s motion to remand the case to this Court. (ECF No. 87.) This matter is before the
Court for consideration of Petitioner’s Brief (ECF No. 92), Respondent’s Memorandum in
Response (ECF No. 95), and Petitioner’s Reply (ECF No. 100).
The issue before the Court is whether it may consider the Affidavit and Report of
neuropsychologist Dr. Michael Gelbort as it relates to the adjudication of several of Petitioner’s
claims. In its September 28, 2011 Opinion and Order denying habeas corpus relief, the Court
determined, on the basis of Cullen v. Pinholster, 131 S.Ct. 1388 (2011), that it could not consider
Dr. Gelbort’s affidavit and report. (ECF No. 68, at Page ID # 1029-1035.) In Pinholster, the
Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” 131 S.Ct. at 1398. Section 2254(d)
precludes a federal court from granting relief on any habeas corpus claim that the state courts
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adjudicated on the merits unless the federal court determines that the state court’s decision
involved an unreasonable application of clearly established law or an unreasonable
determination of the facts. Because the state courts did not have the benefit of Dr. Gelbort’s
affidavit and report when they ruled on Petitioner’s claims, this Court held as follows:
The Court will not consider Dr. Gelbort’s materials for the purpose of
determining whether any state court adjudication on the merits ran afoul of 28
U.S.C. § 2254(d). The Court does not read Pinholster to restrain it from
considering Dr. Gelbort’s materials either as to a claim that the state courts did
not adjudicate on the merits or for the purposes of determining, independent of
the § 2254(d) inquiry, whether habeas corpus relief should issue.
(ECF No. 68, at Page ID # 1035.)
Petitioner, having subsequently attempted to present Dr. Gelbort’s affidavit and report to
the state courts in an untimely third petition for postconviction relief, now urges this Court to
consider Dr. Gelbort’s materials in support of claims that he is intellectually disabled and
ineligible for the death penalty (ground one); that he received ineffective assistance of counsel
during mitigation phase of his trial (ground seven); that there is insufficient evidence to support
his aggravated murder conviction (ground eight); that the prosecution engaged in misconduct by
referencing facts not in evidence (ground nine); and that his Miranda waiver was involuntary
(ground ten). (ECF No. 92, at Page ID # 1460-1487.) Respondent’s position is that
“[c]onsideration of the Gelbort affidavit is still prohibited because that evidence was not before
the state court that adjudicated these claims on the merits.” (ECF No. 95, at Page ID # 1910.)
To that point, Respondent explains that Petitioner’s third postconviction action presenting Dr.
Gelbort’s materials in support of Petitioner’s claims was rejected by the state courts not on the
merits, but as untimely under Ohio Rev. Code § 2953.23. (Id.) Petitioner argues in reply that
this Court should consider Dr. Gelbort’s materials because Petitioner, unlike the applicant in
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Pinholster, did fairly present his new evidence and claims to the state courts. (ECF No. 100, at
Page ID # 1946-1947.)
In his March 22, 2010 Motion to Expand or Supplement the Record, Petitioner
summarized the import of Dr. Gelbort’s affidavit and report as follows:
The report of Dr. Gelbort lists neuropsychological testing that he
conducted and his findings. The findings demonstrate that Petitioner’s has [sic]
long standing organic brain dysfunction and low cognitive functioning that predate the offense in this case. Basically, Petitioner does not have a normal
functioning brain which impairs his coping skills and impulse control. The
findings of Dr. Gelbort directly pertain to Petitioner’s First, Seventh and Eleventh
Grounds for Relief.
(ECF No. 37, at Page ID # 519.) In its May 24, 2010 Opinion and Order allowing expansion of
the record with Dr. Gelbort’s materials, this Court stated:
Whether or to what extent Petitioner possessed diminished mental functioning
that pre-dated and contributed to the offenses was a critical issue in both the
culpability and mitigation phases of his capital trial. The materials that Petitioner
seeks to add will assist the Court in deciding whether Petitioner is mentally
retarded and therefore ineligible for the death penalty, whether Petitioner’s trial
attorneys performed unreasonably and to his prejudice in failing to develop
mental health evidence in support of culpability-phase and mitigation-phase
issues, and whether the trial court erred in admitting certain “bad character”
evidence.
(ECF No. 49, at Page ID # 603-604.) But in its final decision denying habeas corpus relief, as
noted above, this Court concluded that it could not consider Dr. Gelbort’s materials in
addressing the merits of Petitioner’s claims. (ECF No. 68, at Page ID # 1035.)1
This Court granted Petitioner’s request for funds to employ Dr. Gelbort (ECF No. 31) on
October 29, 2009—approximately two years before Pinholster was decided. This Court granted
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The Court did consider Dr. Gelbort’s affidavit and report in addressing Petitioner’s
claim that his trial attorneys were ineffective for failing to support their pretrial motion to
suppress statements with evidence of Petitioner’s intellectual deficiencies (ground five) because
the state courts did not adjudicate that claim on the merits. (ECF No. 68, at Page ID # 1118.)
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Petitioner’s request to expand the record with Dr. Gelbort’s affidavit and report on May 24,
2010—nearly one year before Pinholster was decided.
In response to Respondent’s position that this Court is still precluded from considering
Dr. Gelbort’s affidavit and report, Petitioner essentially argues that because he, unlike the
applicant in Pinholster, fairly presented to the state courts the evidence he wants this Court to
consider, Pinholster should not prohibit that consideration. (ECF No. 100, at Page ID # 1946.)
Relying on two 2014 Sixth Circuit decisions,2 Petitioner likewise argues that the doctrine of
procedural default—stemming from the state courts’ conclusion that Petitioner did not satisfy
Ohio’s statutory requirements for filing an untimely and successive postconviction
petition—does not bar this Court from considering Dr. Gelbort’s materials. Petitioner explains:
Lynch, unlike Bies and Gumm, developed new evidence during the
federal habeas proceedings. The Sixth Circuit, like the district courts in Bies and
Gumm, stayed the habeas proceedings to permit Lynch to return to state court to
exhaust the new evidence. This Court should now, like the district courts and
Sixth Circuit in Bies and Gumm, address the merits of the new evidence.
(ECF No. 100, at Page ID # 1947-1948.) To that point, Petitioner notes that Dr. Gelbort’s
findings have never been refuted by any court or the state. (Id. at Page ID # 1948.)
Petitioner’s arguments are reminiscent of those he raised when Respondent moved, in
light of Pinholster, for reconsideration of this Court’s original decision (ECF No. 49) to expand
the record with Dr. Gelbort’s materials. Specifically, Petitioner argued then that “Pinholster
does not restrict a diligent petitioner (such as Ralph Lynch) from developing new facts in
support of his habeas claims when the state court’s fact-finding process has been so inadequate
that it amounts to a violation of due process.” (ECF No. 66, at Page ID # 1015.)
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Gumm v. Mitchell, 775 F.3d 345, 362 (6th Cir. 2014); Bies v. Mitchell, 775 F.3d 386,
396 (6th Cir. 2014).
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Petitioner’s arguments may be boiled down to two. First, he appears to be suggesting
that there is a “due diligence” exception to Pinholster. Independent of Pinholster, the statutory
provision controlling whether a habeas petitioner who did not develop the factual predicate for
his or her claims in the state courts is entitled to an evidentiary hearing in federal court provides
in relevant part:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—
(A) the claim relies on—
(i) a new rules of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through
the exercise of due diligence . . . .
28 U.S.C. § 2254(e)(2) (emphasis added); see e.g., Landrum v. Mitchell, 625 F.3d 905, 924 (6th
Cir. 2010) (“We hold that the district court did not abuse its discretion in denying Landrum’s
motion to expand the record because he has not shown that the factual predicate of Hill’s
affidavit could not have been discovered previously through the exercise of due diligence.”) The
Supreme Court has held that “[d]iligence for purposes of the opening clause depends on whether
the prisoner made a reasonable attempt, in light of the information available at the time, to
investigate and pursue claims in state court; it does not depend, as the Commonwealth would
have it, upon whether those efforts could have been successful.” Williams v. Taylor, 529 U.S.
420, 435 (2000).
Petitioner is essentially asking the Court to apply a principle from one area of habeas
corpus law concerning factual development to a post-Pinholster scenario. But Pinholster does
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not contain a due diligence exception. That is, Petitioner has not cited and the Court is not aware
of any language in either Pinholster itself or any decision interpreting Pinholster suggesting that
a petitioner who diligently attempts to convince the state courts to consider new evidence, but
ultimately does not succeed, can escape the reach of Pinholster to have a federal habeas court
consider his new evidence. By contrast, this Court is aware of at least one decision precluding,
on the basis of Pinholster, consideration of new evidence that state procedural rules prevented
the state courts from considering. See Pellecier v. Palosaari, No. CV-05-159, 2012 WL
78076060, at *11 (D. Ariz. May 3, 2012) (“Because the state court did not consider the evidence
presented in the second PCR petition, this Court cannot consider it when evaluating the merits
under (d)(1).”). Pinholster provides for no such exception and this Court will not read one into
the decision.
Second, Petitioner implies that the adequacy (or inadequacy, to be precise) of a state’s
postconviction fact-developing process informs whether Pinholster applies to prohibit a federal
court from considering new evidence that a prisoner develops during habeas corpus proceedings.
Neither Pinholster nor any decisions applying Pinholster have tied Pinholster’s applicability to
the quality or availability of the state’s postconviction process, and this Court will not assume
that such a significant qualification was implied. This Court is aware of at least two decisions
rejecting that precise argument. See Caudill v. Conover, 871 F. Supp. 2d 639, 648 (E.D. Ky.
2012) (“Petitioner has not directed the Court to any Supreme Court decisions holding that a
state’s failure to permit discovery in post-conviction proceedings violates due process or
otherwise takes a case outside the scope of Pinholster.”); Ross v. Thaler, 511 F. App’x 293, 305

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(5th Cir. 2013) (“We are further unpersuaded by Ross’s argument that Pinholster applies only
when a fair and complete state court record is before the federal court.”).
The Gumm and Bies decisions that Petitioner cites are distinguishable and lend no
support for an argument that this Court should consider Dr. Gelbort’s materials. Gumm v.
Mitchell involved a habeas petitioner who had returned to state court to pursue an “Atkins”
proceeding to establish that he was intellectually disabled and therefore ineligible for the death
penalty. In so doing, the petitioner also raised new claims unrelated to his Atkins claim. The
state courts touched upon those claims but ultimately concluded that the claims were not
properly before the state courts because the petitioner had not satisfied Ohio’s statutory
provisions for filing postconviction claims that were untimely and/or successive. When the
petitioner returned to his habeas proceedings, the federal courts concluded that because Ohio had
not adjudicated those new claims on the merits, the federal courts were free to review those
claims de novo. Gumm, 775 F.3d at 362.
In Bies v. Sheldon, the habeas petitioner had returned to state court, first to present in a
successive postconviction petition Brady allegations that the petitioner had discovered for the
first time during his habeas corpus proceedings and then to pursue an Atkins claim. The state
courts granted relief on his Atkins claim and vacated his death sentence, but concluded that they
could not reach the merits of the Brady claims because the petitioner had not satisfied the
statutory provisions for filing an untimely, successive postconviction action. When the
petitioner returned to his habeas proceeding, the federal courts determined that they could review
the Brady claims de novo because the state courts has not adjudicated those claims on the merits,
and that procedural default did not preclude consideration of the claims because the state courts
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had erred in determining that the petitioner did not satisfy the requirements set forth in Ohio
Rev. Code § 2953.23. Bies, 775 F.3d at 395-96.
Gumm and Bies are inapposite because neither decision involved the application of
Pinholster. That is, neither decision addressed how to treat in a pending habeas corpus action
new evidence in support of claims previously raised in the state courts and adjudicated on the
merits. The non-Atkins claims that Gumm and Bies presented to the state courts and then
presented in their habeas corpus proceedings were new claims that those petitioners had never
before presented to the state courts. By contrast, the claims that Petitioner asks this Court to
consider anew in light of Dr. Gelbort’s findings are claims that were already presented to, and
adjudicated by, the state courts. And, as was the case in Pellecier v. Palosaari above, nothing
about Petitioner’s unsuccessful attempt to re-present those claims in light of Dr. Gelbort’s
findings changes that fact. Petitioner, unlike Gumm and Bies, is asking this Court to consider
new evidence in ruling on claims previously adjudicated by the state courts—something
Pinholster unmistakably precludes.
Based on the foregoing, it is unnecessary for the Court to address the parties’ arguments
concerning whether or to what extent Dr. Gelbort’s materials support Petitioner’s claims. That
said, the Court is compelled to take note of one argument that Petitioner advances in support of
his claim that he is intellectually disabled and therefore ineligible for the death penalty.
Petitioner asserts in his Reply that even if Pinholster precludes consideration of Dr. Gelbort’s
materials on that issue, this Court should nonetheless re-visit its decision denying his claim
because “the Supreme Court cases decided since this Court’s initial opinion support the
conclusion that Lynch suffers from significantly subaverage intellectual functioning.” (ECF No.
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100, at Page ID # 1949 (discussing Hall v. Florida, 134 S.Ct. 1986 (2014); and Brumfield v.
Cain, 135 S.Ct. 2269 (2015).) The Court will not address that argument, as it falls outside the
scope of the Sixth Circuit’s limited remand.
For the foregoing reasons, the Court adheres to its original decision that Pinholster
precludes the Court from considering Dr. Gelbort’s materials as to any of Petitioner’s claims that
the state courts adjudicated on the merits. (ECF No. 68, at Page ID # 1029-1035, 1059 n.3,
1061-1062 n.4, 1067 n.5, 1070 n.6, 1075 n.7, 1143 n.13, 1171 n.17.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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