Davis v. Warden Ohio State Penitentiary

Filing 122

OPINION and ORDER denying without prejudice 108 Motion for Discovery. Signed by Magistrate Judge Kimberly A. Jolson on 6/13/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROLAND T. DAVIS,
Petitioner,
v.

Case No. 2:10-cv-107
CHIEF JUDGE SARGUS
Magistrate Judge Jolson

DAVID BOBBY, Warden,
Respondent.

OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court on
Petitioner’s Motion for Discovery (Doc. 108), Respondent’s Opposition (Doc. 109), and
Petitioner’s Reply (Doc. 115).
I.

FACTUAL HISTORY
The relevant underlying facts are taken from the Supreme Court of Ohio’s 2008 opinion,

State v. Davis:
During the late evening of July 10 or the early morning of July 11, 2000, an
intruder entered 86-year-old Elizabeth Sheeler’s Newark, Ohio apartment. The
intruder then murdered Sheeler by stabbing her in the neck and chest. The intruder
stole money from the apartment and fled the scene.
The murder went unsolved for almost four years. In 2004, DNA testing identified
defendant-appellant, Roland Davis, as the murderer of Sheeler. Subsequently,
Davis was convicted of the aggravated murder of Sheeler and sentenced to death.
2008-Ohio-2, ¶ 1, 116 Ohio St. 3d 404, 404, 880 N.E.2d 31, 42–43.

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II.

PROCEDURAL HISTORY
Although Petitioner filed this case on February 5, 2010, it is still in its relative infancy.

The operative complaint in this case was filed on May 1, 2015, and Petitioner’s First Motion for
Discovery is now before the Court. (Doc. 108). In the Motion, Petitioner seeks the following
discovery related to his first, seventeenth, and eighteenth grounds for relief:
A.
First Ground for Relief: Wearing of Visible Stun Belt Device Without a
Hearing on the Necessity for Shackling.
Depositions of:
1. Courtroom deputies, Marcus Ramsey and Anthony Phillips;
2. Law enforcement personnel or persons responsible for maintaining,
fixing, and placing the stun device on Davis;
3. Attorney Kirk McVey;
4. Attorney Andrew Sanderson.
B.
Seventeenth Ground for Relief: State’s Failure to Disclose Material,
Favorable Evidence.
Depositions of:
1. Richard Hummel;
2. Attorney Kirk McVey;
3. Attorney Andrew Sanderson.
C.

Eighteenth Ground for Relief: Ineffective Assistance of Counsel.
1. Pre-trial Phase
2. Trial Phase
3. Penalty Phase

Depositions of:
1. Attorney Kirk McVey;
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2. Attorney Andrew Sanderson;
3. Mitigation Specialist Martha Phillips, (as to the claims that counsel
failed to investigate and prepare for mitigation);
4. Psychologist Dennis M. Eshbaugh, (as to the claims that counsel failed
to recognize, request, or show the need for expert and investigative assistance);
5. Investigator Matt Sauer, (as to the claims that counsel failed to
recognize, request, or show the need for expert and investigative assistance);
6. Dr. Theodore D. Kessis of Applied DNA Resources, (as to the claims
that counsel failed to recognize, request, or show the need for expert and
investigative assistance);
7. Jurors as to the impact of inculpatory DNA evidence that was not
properly challenged by trial counsel and the impact of the failure to present
available compelling mitigating evidence at the penalty phase;
8. Records deposition for venire records for Licking County, Ohio (as to
the claims that counsel failed to challenge the venire to ensure a fair cross-section
of the community);
9. Damien Turner (as to the claims that counsel failed to investigate or
present testimony of Damien Turner);
10. Deposition and records deposition of Detective Timothy Elliget,
criminality for the Newark Police Department;
11. Detective Timothy Elliget or a representative of the Newark Police
Department if fingerprints and palm prints are entered into additional databases.
The Court previously concluded that these claims are not procedurally defaulted
but has not passed on the merits of the claims. (See Doc. 94).
III.

DISCUSSION
Habeas corpus actions are unique.

The Federal Rules of Civil Procedure’s liberal

discovery mechanisms do not automatically apply, and “[a] habeas petitioner . . . is not entitled
to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); see
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also Harris v. Nelson, 394 U.S. 286, 295 (1969) (holding that the “broad discovery provisions”
of the Federal Rules did not apply in habeas corpus proceedings). Instead, the Rules Governing
Section 2254 Cases provide that “[a] judge may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.”
Rule 6(a).

Under this “good cause” standard, a district court may grant leave to conduct

discovery in habeas corpus proceedings only “‘where specific allegations before the court show
reason to believe that the petitioner may, if the facts are more fully developed, be able to
demonstrate that he is . . . entitled to relief[.]’” Bracy, 520 U.S. at 908–09 (quoting Harris, 394
U.S. at 300); see also Williams v. Bagley, 380 F.3d 932, 974–75 (6th Cir. 2004); Stanford v.
Parker, 266 F.3d 442, 460 (6th Cir. 2001). Consequently, a habeas petitioner must overcome the
good-cause hurdle before engaging in discovery.
Beyond Rule 6(a), Respondent argues for the Court to impose another barrier to
discovery here: Cullen v. Pinholster, 563 U.S. 170 (2011). (Doc. 108, at PAGEID #: 11254–60,
Doc. 109, at PAGEID #: 11285–87). In Pinholster, a state prisoner brought a § 2254 petition
based on an ineffective assistance claim that had been rejected on the merits in a state collateral
proceeding. Id. at 177. In federal court, the petitioner argued that counsel was ineffective at the
penalty phase of his capital trial by failing to develop mitigating evidence sufficiently, including
evidence that the petitioner suffered from mental disorders. Id. The district court conducted an
evidentiary hearing at which the petitioner called mental health experts who had not been part of
the state court proceedings. Id. at 179. The district court granted habeas relief, and the Ninth
Circuit affirmed, concluding that the state court had unreasonably applied the standard for
ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 180. The

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Supreme Court granted certiorari to resolve, in part, the question of whether “review under
§ 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the
federal habeas court.” Id. at 180.
The Supreme Court reversed. The Court made clear that “review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits”
because the federal habeas scheme was designed to leave “primary responsibility with the state
courts.” Id. at 181–82. Consequently, “[i]t would be contrary to that purpose to allow a
petitioner to overcome an adverse state-court decision with new evidence introduced in a federal
habeas court and reviewed by that court in the first instance effectively de novo.” Id. Put
simply, “review under § 2254(d)(1) focuses on what a state court knew and did.” Id.
Here, Respondent concedes that Pinholster does not address expressly the availability of
discovery in light of § 2254(d)(1) but argues that “the Supreme Court’s reasoning logically and
necessarily applies to any attempt to place new factual information before the federal courts.”
(Doc. 109, at PAGEID #: 11285). Petitioner contrarily asserts that “‘Pinholster did not, strictly
speaking, alter or even speak to the standards governing discovery set forth in Rule 6’” and the
“good cause” standard set out in Bracy. (Doc. 108, at PAGEID #: 11254) (quoting Conway v.
Houk, No. 2:07-cv-947, 2011 WL 2119373, *3 (S.D. Ohio May 26, 2011)). Petitioner thus urges
that “[t]he decision as to what evidence obtained in discovery may be used in federal court, or
what evidence may be required to be presented in state court first, is for another day and does not
provide a basis to reject Davis’ discovery requests.” (Doc. 108, at PAGEID #: 11254–55).
As the parties and numerous courts have recognized, neither the Supreme Court nor the
United States Court of Appeals for the Sixth Circuit has provided explicit guidance on the

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interplay between Pinholster and the availability of discovery in habeas corpus proceedings. See
Grp. v. Robinson, 132 F. Supp. 3d 954, 960 (N.D. Ohio 2015) (“The Supreme Court and the
Sixth Circuit have not declared whether a habeas petitioner can stage discovery in this way”);
Williams v. Houk, No. 4:06 CV 451, 2012 WL 6607008, at *4 (N.D. Ohio Dec. 18, 2012)
(“There is no clear guidance from either the Supreme Court or the Sixth Circuit regarding how
Pinholster applies to the availability of discovery in federal habeas proceedings.”). Without
guidance, courts have divided. Compare e.g., Kyle v. Gansheimer, No. 5:11-cv-1395, 2011 WL
4566363, at *1–2 (N.D. Ohio Sep. 29, 2011) (“Allowing further factual development [as to
claims adjudicated on the merits] in this case would be futile because the Court could not
consider any of the newly discovered evidence on review.”), with e.g., Ervin v. Cullen, No. C 0001228, 2011 WL 4005389, at *3–4 (N.D. Cal. Sep. 8, 2011) (allowing discovery because it
might assist in determining whether a hearing is warranted and because “[h]ere, Petitioner faces
the ultimate punishment, and his discovery requests relate to potentially exculpatory evidence”).
For two primary reasons, the Court concludes that Pinholster must be applied to the
discovery requests here. First, while the Sixth Circuit has not ruled expressly that Pinholster
should be considered with respect to a motion to conduct discovery, the Sixth Circuit has held
consistently that Pinholster precludes consideration of new evidence developed in federal habeas
corpus as to claims that the state courts adjudicated on the merits. See, e.g., Loza v. Mitchell,
766 F.3d 466, 494 (6th Cir. 2014); Moore v. Mitchell, 708 F.3d 760, 780–84 (6th Cir. 2013).
That strongly suggests to this Court that Pinholster’s holding necessarily informs any
determination as to whether discovery is warranted. It also begs the question, “How can good
cause exist to conduct discovery that, as a matter of law, cannot be used?” Indeed, Bracy permits

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courts to permit discovery only “‘where specific allegations before the court show reason to
believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that
he is . . . entitled to relief[.]’” Bracy, 520 U.S. at 908–09 (quoting Harris, 394 U.S. at 300). Put
simply, unusable evidence cannot lead to relief.
Which brings this Court to its second point. Five years removed from Pinholster, it has
become increasingly clear that judicial economy demands that Pinholster be considered in
determining whether good cause exists for conducting discovery. Even Conway v. Houk, in
declining to find that Pinholster precluded discovery, acknowledged the “downside” of its
decision: “the possibility that time and money will be expended discovery of evidence that this
Court might never consider.” Conway, 2011 WL 2119373, at *4. Since Conway, the winds have
blown mostly in one direction.
In Caudill v. Conover, 871 F. Supp. 2d 639, 649–50 (E.D. Ky. 2012), for example, the
court denied without prejudice motions for discovery, appointment of experts, and an evidentiary
hearing, pending 2254(d) review, rather than “creat[ing] a substantial risk of wasting resources
and delaying resolution of [the] matter.” Similarly, in Skatzes v. Smith, No. 3:09-cv-289, 2012
WL 604300 (S.D. Ohio Feb. 24, 2012), the court found that consideration of Pinholster in the
discovery context was unavoidable:
Prior to the decision in Pinholster, it had been this Magistrate Judge’s strong
preference to maintain in capital habeas corpus litigation a close parallel to the
processing of ordinary civil cases, to wit, pleading, followed by discovery,
followed by an evidentiary hearing in most cases, followed by a recommendation
on the merits. While the implications of Pinholster are not yet clear, it now
appears more conducive to judicial economy to decide § 2254(d)(1) and (2) and
procedural default defense issues first, at least before authorizing discovery as
extensive as that sought in this case.
2012 WL 604300, at *10; see also Johnson v. White, Civil Action No. 7:14-117, 2017 WL
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1086769, at *4–5 (E.D. Ky. Mar. 30, 2017) (“Although Pinholster only addressed whether a
federal habeas court conducting a § 2254(d) analysis could consider evidence introduced from an
evidentiary hearing, there is no reason why Pinholster’s holding would not apply with equal
force to new evidence obtained through discovery” and Johnson’s “present motion cannot escape
the shadow of Pinholster”) (emphasis in original); Harrison v. Clarke, No. 2:14-cv-467, 2015
WL 13081206, at *5 (E.D. Va. May 15, 2015) (“Based on the clear statements from Pinholster,
the undersigned recommends . . . finding that a motion for discovery is not appropriate unless the
state court’s determination was an unreasonable application of federal law or an unreasonable
determination of the facts.”); Coddington v. Martel, Civ. No. S-01-1290, 2013 WL 5486801, at
*5–7 (E.D. Cal. Sep. 30, 2013) (collecting cases on linkage between Pinholster and discovery);
Kyle v. Gansheimer, No. 5:11-cv-1395, 2011 WL 4566363, at *1–2 (N.D. Ohio Sep. 29, 2011)
(“Allowing further factual development [as to claims adjudicated on the merits] in this case
would be futile because the Court could not consider any of the newly discovered evidence on
review.”).
The Court is aware of the cases going the other way. See, e.g., Gibson v. Wetzel, Civil
Action No. 11-4550, 2016 WL 1273626, at *3 (E.D. Pa. Mar. 31, 2016) (“While the Court
appreciates that courts across the country are trending toward applying Pinholster to Rule 6
discovery, this Court humbly dissents.”); Pike v. Johnson, No. 1:12-cv-35, 2013 WL 2457718, at
*3–4 (E.D. Tenn. Jun. 6, 2013) (allowing discovery over Pinholster-based objections because
evidence may be relevant to challenge to state court’s factual findings “even if the evidence itself
cannot be considered in the eventual review pursuant to 28 U.S.C. § 2254(d)(1)”); High v.
Nevens, No. 2:11-cv-00891, 2013 WL 1292694, at *4–5 (D. Nev. Mar. 29, 2013) (allowing

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discovery over Pinholster-based objections because the Court was not yet deciding the merits,
the standard of review for deciding the merits, exhaustion, procedural default, timeliness, or
possibility of stay-and-abeyance); Ervin v. Cullen, 2011 WL 4005389, at *3–4 (recognizing that
courts have relied on Pinholster to limit discovery in connection with petitioners for habeas
relief, but allowing discovery because discovery may assist in determining in whether a hearing
is warranted and because “[h]ere, Petitioner faces the ultimate punishment, and his discovery
requests relate to potentially exculpatory evidence”). However, the trend is not in Petitioner’s
favor, and at least one circuit court has expressly applied Pinholster to the discovery context.
See Runningeagle v. Ryan, 686 F.3d 758, 773–74 (9th Cir. 2012) (holding that Petitioner was not
entitled to an evidentiary hearing or additional discovery in federal court because review of his
claims “‘is limited to the record that was before the state court that adjudicated the claim on the
merits’”) (citing Pinholster, 563 U.S. at 180). This Court agrees with the majority and looks to
Pinholster here.
None of Petitioner’s arguments persuade the Court otherwise. Petitioner first argues that
Pinholster should not preclude discovery when there exist “serious questions concerning the
conduct of the trial” (Doc. 108, at PAGEID #: 11255), or when the state courts refuse to allow
any or adequate factual development (Id., at PAGEID #: 11256–11259). Specifically, Petitioner
argues that such concern is particularly acute when a petitioner diligently pursued discovery in
the state courts, as is the case here. (See generally id.). While this Court finds this argument at
least somewhat persuasive, the Sixth Circuit has rejected any suggestion that Pinholster applies
only to cases in which the state courts permitted factual development during collateral review.
See Donaldson v. Booker, 505 F. App’x 488, 493 (6th Cir. 2012) (rejecting argument that

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Pinholster does not apply to cases where the petitioner requested an evidentiary hearing and was
not at fault for the failure to develop the record in state court); Fears v. Bagley, 462 F. App’x
565, 573–74 (6th Cir. 2012) (same); see also Waddy v. Robinson, Case No. 3:98-cv-084, 2014
WL 4674291, at *4 (S.D. Ohio Sep. 18, 2014) (nothing in Pinholster “suggests that a habeas
petitioner who has been denied discovery in the state courts is empowered to use federal habeas
discovery to correct that denial.”); Turner v. Hudson, No. 2:07-cv-595, 2012 WL 511442, at *3
(S.D. Ohio Feb. 15, 2012) (“The Supreme Court [in Pinholster] did not recognize an exception
for cases where the petitioner had been diligent in state court.”).
In Fears, for example, the petitioner argued that Pinholster did not preclude
consideration of evidence presented during an evidentiary hearing before the Magistrate Judge
because the petitioner had attempted to present much of that evidence to the state courts on
collateral review but was denied the opportunity to do so. The Sixth Circuit disagreed, holding
“[w]hile true that a defect in process may allow for de novo consideration of a claim brought
before the state court on collateral review, Panetti v. Quarterman, 551 U.S. 930, 950, 127 S.Ct.
2842, 168 L.Ed.2d 662 (2007), [the petitioner] asserts no clearly established federal law
indicating that his collateral review was defective.” Fears, 462 F. App’x at 574. Consequently,
the Sixth Circuit said, “Pinholster is applicable.” Id.
Similarly, in Ballinger v. Prelesnik, 709 F.3d 558 (6th Cir. 2013), the petitioner in that
case argued that the state court decision rejecting his claim could not be considered an
adjudication on the merits because highly relevant documents were absent from the trial record.
Again, the Sixth Circuit rejected the argument. “While allowing a petitioner to supplement an
otherwise sparse trial court record may be appealing, especially where he diligently sought to do

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so in state court, the plain language of Pinholster and Harrington [v. Richter, 562 U.S. 86
(2011)] precludes it.” 709 F.3d at 562 (citing Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011)).
Petitioner also argues that where § 2254(d)(1) does not bar habeas corpus relief, a
petitioner is permitted to develop and present new evidence. (Doc. 108, at PAGEID #: 11259).
The Court acknowledges as much infra, but that is not a basis for excluding Pinholster from the
determination of whether discovery is warranted.
Finally, the Court notes that there are circumstances under which consideration of new
evidence does not contravene Pinholster—such as if the Court determines from the existing
record that the state courts’ decision was unreasonable under § 2254(d); if a claim was not
adjudicated on the merits but is otherwise properly before the Court for habeas review; or if the
Court is considering whether to excuse a procedural default. See, e.g., Caudill, 871 F. Supp. 2d
at 649. Here, the Court has ruled on issues of procedural default (Doc. 94) but has not yet made
any comprehensive determinations as to whether the Petition contains claims that the state courts
did not adjudicate on the merits but that are otherwise properly before the Court or any
determination of whether the state court decisions that did adjudicate claims on the merits
comported with the “reasonableness” standard set forth in 28 U.S.C. § 2254(d). Postured as
such, Petitioner’s motion for discovery is DENIED without prejudice, subject to
reconsideration or renewal should the Court answer any of the inquiries above in the affirmative.
See, e.g., Coddington v. Martel, 2013 WL 5486801, at *7 (“While it may make sense to permit
the parties to undertake discovery early in the proceedings, it may also make sense to defer
discovery until it appears that the undertaking will not be futile.”); see also Johnson v. White,
2017 WL 1086769, at *5; Lang v. Bobby, No. 5:12-cv-2923, 2014 WL 5393574, at *4–6 (N.D.

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Ohio Oct. 23, 2014) (same); Williams v. Houk, No. 4:06-cv-451, 2012 WL 6607008, at *3–5
(N.D. Ohio Dec. 18, 2012) (same).
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s Motion for Discovery (Doc.

108) without prejudice, subject to reconsideration or renewal if the Court determines from the
existing record that the state-court decision on a claim upon which Petitioner seeks discovery
was unreasonable under § 2254(d), or if the Court determines that a claim upon which Petitioner
seeks discovery was not adjudicated on the merits but is otherwise properly before the Court for
habeas review, or if the Court revisits consideration of whether to excuse a procedural default as
to any of the claims upon which Petitioner seeks discovery.
V.

APPEAL PROCEDURE
Any part may, within fourteen days after this Order is filed, file and serve on the

opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule
72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5.

The motion must

specifically designate the order or part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed and replies by the objecting party are
due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside
any part of this Order found to be clearly erroneous or contrary to law.
This Order is in full force and effect, notwithstanding the filing of any objections, unless
stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
Date: June 13, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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