McKnight v. Warden, Ohio State Penitentiary
Filing
306
DECISION AND ORDER DENYING PETITIONER'S MOTION FOR DISCOVERY 301 . Signed by Magistrate Judge Michael R. Merz on 8/28/2018. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,
Case No. 2:09-cv-059
:
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
-vsDAVID BOBBY, Warden,
:
Respondent.
DECISION AND ORDER DENYING PETITIONER’S MOTION FOR
DISCOVERY
This capital habeas corpus case is before the Court on Petitioner’s Motion for Discovery
(ECF No. 295; filed publicly in redacted form at ECF No. 301). Under S. D. Ohio Civ. R. 7.3,
Petitioner’s counsel reported not contacting the Warden’s counsel for consent to the motion
because of a reasonable expectation consent would not be forthcoming.
Petitioner’s request is to depose “all jurors and alternates regarding their knowledge of and
exposure to racial bias during the trial (Third Claim) and their failure to follow the trial court’s
instructions (Thirty-Second Claim).” Id. at PageID 17643. The relevant Grounds for Relief read:
Third Ground for Relief
Gregory McKnight was deprived of due process, a fair trial and a
fair sentencing hearing in violation of his Fifth, Sixth, Eighth and
Fourteenth Amendment rights due to the trial court’s failure to
change venue in light of the pervasive racial bias in the Vinton
County, Ohio community.
1
Thirty-Second Ground for Relief
Gregory McKnight’s rights to a fair trial, due process and a reliable
sentencing determination were denied under the Fifth, Sixth, Eighth,
and Fourteenth amendments when members of his jury engaged in
misconduct by failing to follow the trial court’s instructions of law.
(Amended Petition, ECF No. 127, PageID 15684, 15841.)
Although the Amended Petition was not filed until August 26, 2013, these claims were
included verbatim in the original Petition filed October 14, 2009 (ECF No. 9, PageID 93, 250). In
compliance with Fed. R. Civ. P. 16, the Magistrate Judge held a scheduling conference on October
18, 2009, and set a deadline for filing any motion for discovery of sixty days after the reply was
filed (ECF No. 11, PageID 287). That deadline was later amended (ECF No. 23) and McKnight
filed his First Motion for Discovery on December 15, 2010 (ECF No. 27). As part of that Motion,
McKnight sought to depose
all jurors as to their exposure to pretrial publicity and the effect that
had on their deliberations (Second Claim), as to their knowledge of
and exposure to racial biases in Vinton County, Ohio during the trial
(Third Claim), as to their knowledge of a juror sleeping during the
trial (Fourteenth Claim), and as to their failure to follow the court’s
instructions (Thirty-Second Claim).
Id. at PageID 1243-44. The Magistrate Judge denied this request to depose jurors and alternates
upon concluding that “[a]ny testimony from the jurors on how pretrial publicity, racial bias, or
failure to properly understand and follow the instructions would be inadmissible under Fed. R.
Evid. 606(b).” (Decision, ECF No. 31, PageID 1313, aff’d, ECF No. 54).1 An expected motion
1
This Decision was filed February 2, 2011, at a time when this Court was regularly holding evidentiary hearings in
capital habeas corpus cases. This was shortly before the April 4, 2011, decision in Cullen v. Pinholster, 563 U.S. 170
(2011), which eliminated that practice.
2
for discovery relating to Ohio’s amended lethal injection protocol never materialized (ECF No.
131).
On January 14, 2016, having resolved McKnight’s issues regarding representation, the
Magistrate Judge filed a Notice indicating his view that the case was ripe for decision, but invited
objections (ECF No. 196). Having considered the responses, the Magistrate Judge granted
McKnight until April 1, 2016, to file a “renewed motion to stay the case and hold it in abeyance
pending state court litigation.” (ECF No. 200, PageID 16441.) A number of subsequent motions
to amend or to hold the case in abeyance pending state court litigation consumed the year and a
half between April 1, 2016, and this renewed Motion for Discovery.
The claims on which McKnight seeks discovery have been pending for almost ten years.
The same discovery – depositions of all jurors and alternates – was previously sought and denied
by both the Magistrate Judge and District Judge Dlott (ECF Nos. 31 and 54). Although not labeled
in that way, McKnight’s present motion is effectively a motion for reconsideration.
Courts disfavor motions for reconsideration because they consume a court’s scarce time
for attention to a matter that has already been decided. They are subject to limitations based on
that disfavor.
As a general principle, motions for reconsideration are looked upon
with disfavor unless the moving party demonstrates: (1) a manifest
error of law; (2) newly discovered evidence which was not available
previously to the parties; or (3) intervening authority. Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S.
1171, 90 L. Ed. 2d 982 (1986).
Meekison v. Ohio Dep't of Rehab. & Corr., 181 F.R.D. 571, 572 (S.D. Ohio 1998)(Marbley, J.).
The decision that McKnight should not be authorized to depose his trial jurors is the law of this
case which requires similar support for deviations:
3
The law of the case doctrine precludes reconsideration of an issue
already decided in a previous stage of litigation, either explicitly or
by necessary inference from the disposition. McKenzie v. BellSouth
Telecomms., 219 F.3d 508, 513 (6th Cir. 2000)(citing United States
v. Moored, 38 F.3d 1419, 1421-22 (6th Cir. 1994)). However, a
ruling can be reconsidered: (1) where substantially different
evidence is raised on subsequent trial; (2) where a subsequent
contrary view of the law is decided by the controlling authority; or
(3) where a decision is clearly erroneous and would work a manifest
injustice. Id. at 513 n. 3 (citing Hanover Ins. Co. v. American Eng'g
Co., 105 F.3d 306, 312 (6th Cir. 1997)).
Miller v. City of Cincinnati, 870 F. Supp. 2d 534, 539 (S.D. Ohio 2012)(Barrett, J.).
McKnight’s instant Motion recognizes the law of the case doctrine (ECF No. 301, PageID
17705, citing Miller). Relying on the second branch of Miller, however, McKnight asserts there
is new controlling authority.
The Supreme Court’s decision in Peña-Rodriguez v. Colorado, 137
S.Ct. 855 (2017), constitutes controlling subsequent authority that
now permits Mc Knight to avoid the strict application of Rule 606(b)
and present evidence from jurors that racial animus and racial bias
affected the jury’s deliberations at both phases of the trial and related
misconduct by some jurors. The Peña-Rodriguez Court held that the
no-impeachment rule of Fed. R. Evid. 606(b) must give way to
permit courts to consider evidence of jurors’ racially biased
statements and the effect those racially biased statements had on
deliberations in order to protect the right to a trial by a fair and
impartial jury. Id. at 869.
Id. at PageID 17705-06.)
It is correct that Peña-Rodriguez is subsequent authority from the highest possible source,
but this Court has already applied Teague v. Lane, 489 U.S. 288 (1989), in this very case and held
that Peña-Rodriguez does not apply to cases on collateral review. McKnight v. Bobby, 2018 U.S.
Dist. LEXIS 86263 (S.D. Ohio May 22, 2018), aff’d, ECF No. 290. McKnight has cited no
decisional authority to the contrary.
4
Moreover, assuming the Ohio courts decided these two constitutional claims on the merits,
McKnight faces an additional barrier to presenting the results of any proposed discovery to this
Court. Under Cullen v. Pinholster, 563 U.S. 170 (2011), this Court is limited to the record before
the state courts in determining whether the state court decisions violate 28 U.S.C. § 2254(d)(1) or
(2). Entirely apart from Fed. R. Evid. 606(b), evidence discovered in these proposed depositions
would not be admissible in these habeas proceedings because of Pinholster.
Therefore, Petitioner’s renewed Motion for Discovery is DENIED.
August 28, 2018.
s/ Michael R. Merz
United States Magistrate Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?