Davis v. Warden Chillicothe Correctional Institution
Filing
49
DECISION AND ORDER OVERRULING 44 Appeal from Magistrate Judge decision denying discovery. Signed by Judge Susan J. Dlott on 1/28/19. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
VON CLARK DAVIS,
Petitioner,
:
- vs -
Case No. 2:16-cv-495
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TIMOTHY SHOOP, Warden,
Chillicothe Correctional Institution,
:
Respondent.
DECISION AND ORDER OVERRULING APPEAL FROM
MAGISTRATE JUDGE DECISION DENYING DISCOVERY
This capital habeas corpus case is before the Court on Petitioner’s Appeal (ECF No. 44) of
Magistrate Judge Merz’s Decision and Order (ECF No. 41) denying Petitioner’s Motion for
Discovery (ECF No. 38). The Warden has responded (ECF No. 45), and Petitioner, with court
permission (ECF No. 47), has filed a Reply (ECF No. 48).
A motion for discovery in a habeas corpus case is non-dispositive. District Court review
is for clear error on factual findings and de novo on questions of law. Fed. R. Civ. P. 72(a). When
the magistrate judge in deciding a nondispositive matter is exercising the discretion granted the
district court under either statute or rules, review is for abuse of discretion. Snowden v. Connaught
Laboratories, 136 F.R.D. 694, 697 (D. Kan. 1991); Detection Systems, Inc. v. Pittway Corp., 96
F.R.D. 152, 154 (W.D.N.Y. 1982); Doe v. Marsh, 899 F. Supp. 933, 934 (N.D.N.Y. 1995);
Commodity Futures Trading Comm’n v. Standard Forex, Inc., 882 F. Supp. 40, 42 (E.D.N.Y.
1995); Bass Public Ltd. Co. v. Promus Cos., Inc., 868 F. Supp. 615, 619 (S.D.N.Y. 1994); In re
1
Application for Order for Judicial Assistance in Foreign Proceedings, 147 F.R.D. 223, 225 (C.D.
Cal. 1993); Schrag v. Dinges, 144 F.R.D. 121, 123 (D. Kan. 1992).
A habeas petitioner is not entitled to discovery as a matter of course, but only upon a factspecific showing of good cause and in the Court’s exercise of discretion. Rule 6(a), Rules
Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286
(1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000).
Insofar as the Magistrate Judge was exercising the Court’s discretion in deciding the
Motion for Discovery in the first instance, abuse of discretion is the standard on appeal. In a capital
case arising in this District, the Sixth Circuit has held “[a]buse of discretion is defined as a definite
and firm conviction that the [lower] court committed a clear error of judgment.” Landrum v.
Anderson, 813 F.3d 330, 334 (6th Cir. 2016) (quoting Burrell v. Henderson, 434 F.3d 826, 831
(6th Cir. 2006)). A district court abuses its discretion “when it relies on erroneous findings of fact,
applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion,
or makes a clear error of judgment.” Schlaud v. Snyder, 717 F. 3d 451, 457 (6th Cir. 2013). The
same standard applies when a District Judge is reviewing a Magistrate Judge’s decision on a nondispositive matter for abuse of discretion. Petitioner begins his appeal by arguing the Magistrate
Judge’s decision here “is clearly erroneous and/or contrary to law. . .” (Appeal, ECF No. 44,
PageID 9506, 9510), but the proper standard of review is abuse of discretion.
Third, Seventh, and Eighth Grounds for Relief
In 2007 Petitioner Davis won reversal of his death sentence. Davis v. Coyle, 475 F.3d 761
(6th Cir. 2007). On remand, he was re-sentenced to death by a three-judge panel of the Butler
2
County Court of Common Pleas. In his Third, Seventh, and Eighth Grounds for Relief, he asserts
he received ineffective assistance of trial counsel in that re-sentencing proceeding, particularly
Ground Three: in failing to “reasonably investigate and present mitigating Skipper evidence”
Ground Seven: in (1) calling Cynthia Mausser in mitigation; (2) failing to adequately investigate
and present Dr. Robert Smith’s mitigating evidence; (3) failing to call mitigation investigator John
Lee; and (4) failing to “effectively investigate and present mitigating evidence from Mr. Davis’s
family.”
Ground Eight: (1) in failing to seek recusal of Judge Nastoff, and (2) in failing to voir dire Judge
Pater. (Petition, ECF No. 6, PageID 8565-67)
In support of these claims, Petitioner sought the files of re-sentencing counsel and the
following depositions:
Second Resentencing Counsel Randall Porter and Melynda CookReich (now Melynda Cook Howard)
Appellate Counsel Laurence E. Komp, John P. Parker, and Alan M.
Freedman
Post-Conviction Counsel Kort Gatterdam and Erik P. Henry
Dr. Smith, who served as an expert witness in the areas of clinical
psychology and addiction
Mitigation Investigator John Lee
The Honorable Charles L. Pater
The Honorable Keith M. Spaeth
The Honorable Andrew Nastoff
Prison personnel who, through their interactions and evaluations of
Mr. Davis, are able to speak to his behavior, attitude, and
personality. These individuals’ handwritten signatures appear on
3
selected documents from Mr. Davis’s DRC records that were
provided in post-conviction exhibit E. (See ECF 4-46, PageID
6281-364.)
(Motion, ECF No. 38, Page ID 9451).
Davis conceded these three grounds for relief were denied on their merits by the Ohio
courts. Noting that fact, Magistrate Judge Merz denied discovery, holding the state court decisions
were entitled to deference under 28 U.S.C. § 2254(d)(1) unless Davis could overcome the
limitations of that statute on the state court record. (Decision, ECF No. 41, PageID 9491-92,
relying on Cullen v. Pinholster, 563 U.S. 170 (2011)).
On appeal Davis argues this ruling is “contrary to law” because “§ 2254(d)(1) deference is
inapplicable where, as here, the state courts failed to permit factual development to support a
constitutional claim.” (Appeal, ECF No. 44, PageID 9514.) In support of this proposition, Davis
cites Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010), a pre-Pinholster decision. William Wiley was a
Mississippi death row inmate who sought relief under Atkins v. Virginia, 536 U.S. 304 (2002). He
was denied an evidentiary hearing in state court but granted one in federal habeas court, resulting
in relief. On appeal the Fifth Circuit refused to defer to the Mississippi Supreme Court’s holding
that, as a matter of state law, Wiley had not presented the prima facie case of mental retardation1
required to warrant a hearing. Instead, the circuit court found Mississippi’s failure to follow its
own precedent constituted a denial of federal due process. Id. at 210, citing Rogers v. Tennessee,
532 U.S. 451 (2001).
Wiley is inapposite here. Davis does not contend the Ohio courts denied him due process
by failing to follow governing state precedent so as to implicate Rogers. Much more importantly,
Wiley was decided before Pinholster and thus could not take account of the important change in
1
Thus labeled in Atkins, but now properly called “intellectual disability.” Hall v. Florida, 134 S. Ct. 1986 (2014).
4
the law wrought by Pinholster. Prior to that decision, this Court regularly, indeed almost routinely,
held evidentiary hearings in capital habeas cases and permitted discovery to prepare for those
hearings. But since Pinholster, in both capital and non-capital cases, the Court has required habeas
petitioners to overcome the § 2254(d) hurdle before permitting discovery and evidentiary hearings.
Davis’s reliance on Terry v. Cross, 112 F. Supp. 2d 543 (E.D. Va. 2000), and Taylor v.
Maddox, 366 F.3d 992 (9th Cir. 2004), is unpersuasive for the same reason: both were decided
years before Pinholster radically changed the law on evidentiary hearings in habeas.
In Broom v. Bobby, 2018 U.S. Dist. LEXIS 57564 (N.D. Ohio Apr. 4, 2018), Judge Boyko
of our sister District denied discovery to Ohio death row inmate Romell Broom on his second-intime habeas petition. While recognizing that Pinholster does not speak directly to discovery
issues, he noted this Court’s decision in Blevins v. Warden, 2011 U.S. Dist. LEXIS 142011 (S.D.
Ohio Dec. 9, 2011)((Merz, M.J.) where the Magistrate Judge noted that “[t]here cannot be good
cause to collect evidence which cannot be presented.” Id. at *9. Judge Boyko also notes the
limitation of federal court consideration to the state court record in cases decided on the merits in
state court has received strong Sixth Circuit endorsement in Loza v. Mitchell, 766 F.3d 466 (6th
Cir. 2014); Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013); Sheppard v. Bagley, 657 F.3d 338 (6th
Cir. 2011), all cases arising from this District. Finally, in Ballinger v. Prelesnik, 709 F.3d 558 (6th
Cir. 2013), the Sixth Circuit held that Pinholster prevented an evidentiary hearing when the state
court decision was on the merits, even though the state court record did not include “highly relevant
documents.” Id. at 562.
Petitioner cites some decisions of this Court allowing habeas corpus discovery postPinholster. However, none of those was for the gathering of evidence to present in a federal court
evidentiary hearing. See, e.g. Monroe v. Warden, No. 2:07-cv-258, 2012 WL 4342890 (S.D. Ohio
5
Sept. 21, 2012), where, in a long-pending capital case, Magistrate Judge Merz allowed depositions
for evidence preservation regardless of whether the decisional record would be expanded with the
transcripts.
Davis also claims “[a] state court decision where factual development was limited or denied
will not qualify as an ‘adjudication on the merits.’” (Appeal, ECF No. 44, PageID 9514, citing
Richardson v. Branker, 668 F.3d 128, 152 n.26 (4th Cir. 2012). That case reversed a district court
habeas decision for refusing to defer to a state court decision on the merits. The cited footnote
contrasts a Virginia case where the petitioner’s claim was not adjudicated on the merits because
the state courts did not provide a forum for the claim. Importantly, the Richardson court relied
heavily on Harrington v. Richter, 562 U.S. 86, 103 (2011), then recently decided, which
strengthened the presumption that a state court decision was rendered on the merits. Davis’s
Appeal does not cite Harrington, which is the controlling case on when a state decision is to be
treated as made on the merits.
The Court concludes the Magistrate Judge’s deference to the state court decisions in this
matter is not contrary to law.
Eighth, Tenth, and Thirteenth Grounds for Relief
The pertinent Grounds for Relief are
Ground Eight:
Davis received ineffective assistance of trial counsel in the re-sentencing
proceeding, (1) in failing to seek recusal of Judge Nastoff, and (2) in failing to voir dire Judge
Pater.
6
Ground Ten: Davis was convicted upon unnecessarily suggestive procedures and unreliable
identifications.
Ground Thirteen: The selection of the grand jury foreperson violated the Fifth, Sixth, Eight, and
Fourteenth Amendments.
(Petition, ECF No. 6, PageID 8567-68)
Davis seeks to depose his appellate counsel (Laurence Komp, John Parker, and Alan
Freedman) and his post-conviction counsel (Kort Gatterdam and Erik Henry) on the theory that
their ineffective assistance could provide cause to excuse any procedural default of these claims.
The Magistrate Judge denied those depositions, holding:
Yet, ineffective assistance of counsel is governed by an objective,
rather than subjective, standard; i.e., it matters not whether not
presenting the arguments that underlie Claims Eight, Ten, and
Thirteen was a careless oversight or an intentional decision. What
matters is whether, by not presenting those arguments, counsel fell
below the standard for adequate representation. Strickland, 466 U.S.
at 687-88. The depositions of appellate and initial post-conviction
counsel would do nothing to further Davis’s presentation of an
ineffective assistance argument or the Court’s consideration of that
issue, and the Court will not grant leave for him to take those
depositions.
(Decision, ECF No. 41, PageID 9494.)
Davis now argues that the “Magistrate Judge’s assertion that prior counsel’s subjective
understanding is irrelevant to deficient performance [under Strickland] is contrary to law.”
(Appeal, ECF No. 44, PageID 9515-20). Davis is correct that whether an attorney performed
deficiently depends on what the attorney knew or should have known at the time he or she acted
in a way later alleged to have been ineffective assistance. The Magistrate Judge’s Decision should
not be read as denying that point. Instead, the Decision makes the point that there is no mens rea
element to an ineffective assistance of counsel claim. Rather, a petitioner must show that what his
7
attorney did or omitted to do was objectively unreasonable, given what the attorney knew or should
have known at the time.
In the Return of Writ, Respondent does not raise a procedural default defense as to the
Eighth Ground for Relief (ECF No. 17, PageID 9057-60). There is thus no basis to depose counsel
to attempt to excuse a procedural default of this claim.
Respecting Ground Ten, Respondent correctly asserts it is the same as Ground One in
Davis’s first habeas petition2. That prior case was Case No. C-1-97-402 in which the First Ground
for Relief read:
First Ground for Relief. Petitioner's conviction was obtained
through the use of unnecessarily suggestive identification
procedures, in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
(Quoted at ECF No. 16-1, PageID 8903). Judge Graham found that this claim was procedurally
defaulted because it was raised for the first time in post-conviction, but could have been raised on
direct appeal and was therefore barred by res judicata and not excused by ineffective assistance of
appellate counsel because that claim had not been submitted to the Ohio courts. Id. at PageID
8914-20.
Respondent argued in the Return of Writ that this claim had never been presented to the
state courts for adjudication in respect to the state court judgment currently being collaterally
attacked in these proceedings and is therefore procedurally defaulted on the same basis as in the
first habeas case (Return, ECF No. 17, PageID 9061).
Seeking discovery on this Ground for Relief, Davis argues that any procedural default is
excused by ineffective assistance of appellate counsel and such claims are not barred by failure to
2
The instant Petition is Davis’s second in time. It is not second or successive because it attacks a new judgment, the
one entered on re-sentencing. See Magwood v. Patterson, 561 U.S. 320 (2010).
8
pursue them in the Ohio courts because Ohio lacked a “firmly established and regularly followed”
procedural rule governing such claims (Appeal, ECF No. 44, PageID 9532, citing Franklin v.
Anderson, 434 F.3d 412 (6th Cir. 20053). In Franklin the Sixth Circuit found that the Ohio Supreme
Court had enforced the timeliness provision in App. R. 26(B) for a number of years after that Rule
was adopted, but it had switched to deciding ineffective assistance of appellate counsel claims on
the merits regardless of timeliness considerations in 2000.
Franklin is no longer the law. The Sixth Circuit later held that Franklin does not establish
that the timeliness rule of 26(B) will always be inadequate; instead the courts must consider
whether the state court rule was firmly established and regularly followed by the time as of which
it was to be applied. Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008). On that basis, the Sixth
Circuit found a procedural default of an ineffective assistance of appellate counsel claim in
Landrum v. Mitchell, 625 F.3d 905 (6th Cir. 2010):
By the time Landrum filed his Rule 26(B) motion in September
1998, "it was well established that claims of ineffective assistance
of appellate counsel must be raised in a motion for reconsideration
before the Ohio Court of Appeals." Monzo v. Edwards, 281 F.3d
568, 577 (6th Cir. 2002) (considering whether Rule 26(B) was an
independent and adequate state procedural rule as of May 1998).
Since at least 1996, Ohio law has provided sufficient guidance on
what constitutes "good cause" for a late filing under Rule 26(B). Id.
at 578. Furthermore, as of January 1996, "the time constraints of
Rule 26(B) were firmly established and regularly followed." Parker
v. Bagley, 543 F.3d 859, 861 (6th Cir. 2008) (discussing
Fautenberry v. Mitchell, 515 F.3d 614, 641 (6th Cir. 2008))
(emphasis omitted). Thus, because Landrum's Rule 26(B) motion
was filed beyond the ninety-day period, we conclude that he has
procedurally defaulted his ineffective assistance of appellate
counsel claim.
3
Franklin was actually decided in 2006.
9
625 F.3d at 916-17. Franklin was distinguished based on the timing of the 26(B) application in
Franklin. At the time Davis should have raised his ineffective assistance of appellate counsel to
excuse procedural default claim, Ohio App. R. 26(B) was firmly established and regularly
followed.
Davis’s Appeal in this regard relies on law (Franklin) that has been superseded.
Because Davis has not posited a way around that procedural default, he has not shown good cause
to depose his appellate counsel on Ground Ten.
In the Return of Writ, Respondent defends Ground Thirteen on the same basis as Ground
Ten (Return, ECF No. 17, PageID 9065-67)4. Discovery by deposing appellate counsel is denied
as to Ground Thirteen on the same basis as Ground Ten.
Davis also appeals on the basis that the Magistrate Judge found he presented no evidence
that the grand jury foreperson selection process in Butler County was discriminatory (Appeal, ECF
No. 44, PageID 9535-36). Davis argues this is the incorrect standard and that discovery should be
granted when specific allegations show reason to believe a habeas petitioner may be entitled to
relief. Id. citing Harris v. Nelson, 394 U.S. 286, 300 (1969).
While Harris remains good law so far as it goes, it does not describe the full showing a
habeas petitioner must make before obtaining discovery. The burden of demonstrating the
materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442,
460 (6th Cir. 2001), cert. denied, 537 U.S. 831 (2002), citing Murphy v. Johnson, 205 F.3d 809,
813-15 (5th Cir. 2000). “Even in a death penalty case, ‘bald assertions and conclusory allegations
do not provide sufficient ground to warrant requiring the state to respond to discovery or require
an evidentiary hearing.’” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003), cert. denied, 543
4
Petitioner’s assertion that the “Warden did not assert any procedural bar to this claim, and the Magistrate Judge
clearly erred in asserting new accusations of procedural default in order to deny discovery” is puzzling because the
claim of default is plainly made at ECF No. 17, PageID 9067: “Habeas claim 13 has never at any time been presented
to state court for adjudication.”
10
U.S. 842 (2004), quoting Stanford, 266 F.3d at 460. All that Davis is prepared to say on this point
of the appeal is that there is a prima facie case of discrimination on the basis of race and gender in
Hamilton County and “counsel have reason to believe that the same improper procedures were
used at the time of Davis’s indictment in adjoining Butler County.” (Appeal, ECF No. 44, PageID
9536).
The currently leading Supreme Court case on discovery in habeas is Bracy v. Gramley, 520
U.S. 899 (1997). In that case the Court described the evidence already presented before discovery
was justified:
As just noted above, petitioner's attorney at trial was a former
associate of Maloney's, App. 51, and Maloney [the corrupt trial
judge] appointed him to defend this case in June 1981. The lawyer
announced that he was ready for trial just a few weeks later. He did
not request additional time to prepare penalty-phase evidence in this
death penalty case even when the State announced at the outset that,
if petitioner were convicted, it would introduce petitioner's thenpending Arizona murder charges as evidence in aggravation. Tr. of
Oral Arg. 43. At oral argument before this Court, counsel for
petitioner suggested, given that at least one of Maloney's former law
associates--Robert McGee--was corrupt and involved in bribery, see
supra, at 8, that petitioner's trial lawyer might have been appointed
with the understanding that he would not object to, or interfere with,
a prompt trial, so that petitioner's case could be tried before, and
camouflage the bribe negotiations in, the Chow murder case. Tr. of
Oral Arg. 17-18, 43-44. [FN11] This is, of course, only a theory at
this point; it is not supported by any solid evidence of petitioner's
trial lawyer's participation in any such plan. It is true, however, that
McGee was corrupt and that petitioner's trial coincided with bribe
negotiations in the Chow case and closely followed the Rosario
murder case, which was also fixed.
520 U.S. 907-908.
We emphasize, though, that petitioner supports his discovery
request by pointing not only to Maloney's conviction for bribe taking
in other cases, but also to additional evidence, discussed above, that
lends support to his claim that Maloney was actually biased in
petitioner's own case. That is, he presents "specific allegations" that
his trial attorney, a former associate of Maloney's in a law practice
11
that was familiar and comfortable with corruption, may have agreed
to take this capital case to trial quickly so that petitioner's conviction
would deflect any suspicion the rigged Rosario and Chow cases
might attract.
Id. at 909. The quoted “specific allegations” language is from Harris v. Nelson, supra, and
demonstrates that the Supreme Court in both cases was adverting not to the claim language in the
habeas petition, but to specific evidence obtained outside the discovery process and presented in
support of a motion for discovery, which corroborates the claimed constitutional violation.
“Counsel has reason to believe” does not measure up to the Bracy standard.
The Magistrate Judge’s Decision denying the requested discovery as to Grounds Eight,
Ten, and Thirteen is neither contrary to law nor an abuse of discretion. Davis’s appeal as to these
three grounds is OVERRULED.
Lethal Injection Claims (Twenty-Three through Twenty-Six)
In his Twenty-Third Ground for Relief, Davis asserts his execution will violate the Cruel
and Unusual Punishment Clause of the Eighth Amendment (Petition, ECF No. 6, PageID 878297. In his Twenty-Fourth Ground he asserts his execution under Ohio law will violate his
Fourteenth Amendment Due Process and Privileges or Immunities rights. Id. at PageID 8798-8803.
In his Twenty-Fifth Ground for Relief, he asserts his execution under Ohio law will violate his
Fourteenth Amendment Equal Protection rights. Id. at PageID 8804-13. In his Twenty-Sixth
Ground for Relief, he alleges all of the means available under Ohio law for his execution are
preempted by federal law. Id. at PageID 8814-35.
The Magistrate Judge denied discovery on all four of these grounds in part because of the
pendency of parallel grounds in In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016 (the
12
“Protocol Case) and in part because he found the Petition was not verified and did not include the
individual characteristics of Mr. Davis that allegedly required discovery (Decision, ECF No. 41,
PageID 9498).
Davis claims the Magistrate Judge’s finding that the Petition is not verified is clearly
erroneous in that the Petition is verified by his co-counsel Assistant Federal Defender Erin
Barnhart. The relevant language appears at PageID 8838 and reads:
VERIFICATION
Pursuant to 28 U.S.C. § 2242, I, Erin Gallagher Barnhart, counsel
for petitioner, hereby verify that the allegations contained herein are
true and accurate to the best of my knowledge.
s/ Erin G. Barnhart
Counsel for Petitioner
August 25, 2016
Date
The first paragraph of 28 U.S.C. § 2242 as enacted by Congress in 1948 reads:
“Application for a writ of habeas corpus shall be in writing and verified by the person for whose
relief it is intended or by someone acting in his behalf.” Rule 2(c)(5) of the Rules Governing §
2254 Cases requires that a habeas corpus petition must “be signed under penalty of perjury by the
petitioner or a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.” Rule 2(c)(5)
was amended by the Supreme Court in 2004 to remove the requirement that the petition be signed
personally by the petitioner, but the requirement that the verification be under penalty of perjury
was not. Therefore, the Magistrate Judge’s finding that the Petition was not verified is not clearly
erroneous because the verification is improper as to form. Counsel is directed to correct this error
by having the Petition verified by Davis personally or submitting counsel’s verification under
penalty of perjury. Assuming the error is promptly corrected, the improper verification is not in
itself a substantive ground for denying discovery.
13
The Magistrate Judge also denied discovery on Ground Twenty-Three on the basis that the
Motion for Discovery “did not designate facts supporting the allegation in the Petition that Davis’s
“unique, individual physical and or mental characteristics will cause any execution by lethal
injection under Ohio law to violate the Eighth Amendment,” (Decision, ECF No. 41, PageID 9498,
quoting Petition, ECF No. 6, Page ID 8796). In his Appeal, Davis does not cite to any place in the
Motion for Discovery where his unique personal characteristics are discussed. Indeed, he could
not do so because the Motion for Discovery, as the Magistrate Judge found, does not recite these
individual characteristics or even cite the portion of the Petition that contains them. In his Appeal,
Petitioner cites to the Petition itself and not to the Motion (Appeal, ECF No. 44, citing Petition,
ECF No. 6, at PageID 8770.) The Magistrate Judge’s finding that Davis’s allegedly “unique
personal characteristics” are not recited in the Motion for Discovery is not clearly erroneous.
Indeed, it is correct; the characteristics in question are not even incorporated by reference from the
Petition.
Davis objects to the Magistrate Judge’s skepticism about allowing simultaneous litigation
of the lethal injection claims in this case and in the Protocol Case. The Court need not deal with
any possible conflict at this time because the Decision found “Davis asks only ‘that information
that has been or is in the future produced in the [Protocol Case] and is designated
CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION be
permitted to be used for the purpose of litigating this habeas action[,]’ id. (emphasis in original),
and the Warden does not specifically object to this portion of the Motion in her memorandum
contra.” That permission is GRANTED as to Ground for Relief Twenty-Three, subject to the
limitation to state court record required by Pinholster.
Grounds Twenty-Four, Twenty-Five, and Twenty-Six are parallel to claims for relief made
14
by Davis in the Protocol Case. Last month Chief Judge Sargus of this Court adopted the Magistrate
Judge’s recommendation that the parallel claims should be dismissed for failure to state a claim
under 42 U.S.C. § 1983 upon which relief could be granted. In re Ohio Execution Protocol Litig.,
2018 WL 6529145, 2018 U.S. Dist. LEXIS 209769 (S.D. Ohio Dec. 12, 2018). On that basis, the
Magistrate Judge’s Decision denying discovery on these three Grounds for Relief is AFFIRMED.
Twelfth Ground for Relief (Denial of Inspection of Grand Jury Transcript)
In his Twelfth Ground for Relief, Davis claims he had a right to inspect the transcript of
the grand jury proceedings that resulted in his indictment and denial of that right violated his rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. As discovery on
this claim, Davis seeks the transcript itself and depositions of the records custodians of the Butler
County Prosecutor’s Office and the Butler County Jury Commissioner regarding the grand jury
transcript (Motion, ECF No. 38, PageID 9463).
The Magistrate Judge denied discovery on this Ground for Relief because the claim was
procedurally defaulted when it was not raised on direct appeal from the second resentencing and
because the claim had been considered and denied on the merits by the Ohio Supreme Court on
Davis’s first appeal in 1988 (Decision, ECF No. 41, PageID 9499-9500).
On appeal, Davis asserts the Magistrate Judge’s first reason “fundamentally misreads
exhaustion standards.” (Appeal, ECF No. 44, PageID 9532.) But the Magistrate Judge made no
exhaustion ruling at all. Instead, his ruling is that the claim is procedurally defaulted.
Davis also takes issue with the Magistrate Judge’s decision that this issue was decided on
the merits by the Ohio Supreme Court. Id. at PageID 9533. Davis claims he raised both a federal
and state law claim in his first appeal, but that the Ohio Supreme Court discussed only the state
15
law claim. Id.
However, the depth of a state court’s discussion of a federal issue is not
determinative of whether it decided the issue on the merits.
By its terms § 2254(d) bars relitigation of any claim "adjudicated on
the merits" in state court, subject only to the exceptions in §§
2254(d)(1) and (d)(2). There is no text in the statute requiring a
statement of reasons. The statute refers only to a "decision," which
resulted from an "adjudication." As every Court of Appeals to
consider the issue has recognized, determining whether a state
court's decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state
court explaining the state court's reasoning. See Chadwick v.
Janecka, 312 F.3d 597, 605-606 (CA3 2002); Wright v. Secretary
for Dept. of Corrections, 278 F.3d 1245, 1253-1254 (CA11 2002);
Sellan v. Kuhlman, 261 F.3d 303, 311-312 (CA2 2001); Bell v.
Jarvis, 236 F.3d 149, 158-162 (CA4 2000) (en banc); Harris v.
Stovall, 212 F.3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196
F.3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F.3d
866, 869 (CA8 1999). And as this Court has observed, a state court
need not cite or even be aware of our cases under § 2254(d). Early
v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002)
(per curiam). Where a state court's decision is unaccompanied by an
explanation, the habeas petitioner's burden still must be met by
showing there was no reasonable basis for the state court to deny
relief. This is so whether or not the state court reveals which of the
elements in a multipart claim it found insufficient, for § 2254(d)
applies when a "claim," not a component of one, has been
adjudicated.
Harrington v. Richter, 562 U.S. 86, 98 (2011).
[Harrington v.] Richter and [Early v.] Packer appear to require
AEDPA deference where a federal issue has been raised but the state
court has denied the claim with a discussion solely of state law. See
Childers v. Floyd, 642 F.3d 953, 968-69 (11th Cir. 2011). The
Supreme Court has recently granted certiorari in a case that may
definitively resolve this issue. See Cavazos v. Williams, 132 S. Ct.
1088, 181 L. Ed. 2d 806 (2012).
Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012); Werth v. Bell, 692 F.3d 486, 493 (6th
Cir. 2012). Because the Ohio Supreme Court adjudicated Davis’s grand jury transcript claim on
the merits, the Magistrate Judge’s Decision was not contrary to law in denying discovery on this
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claim on the basis of Pinholster.
Davis criticizes the Magistrate Judge’s Decision for its finding that he had not shown the
required particularized need for examining the transcript (Appeal, ECF No. 44, PageID 9534).
Davis then quotes various asserted inconsistencies between the testimony of eyewitness Cozette
Massey and other evidence. Id. In his Motion for Discovery, Davis argued the transcripts were
necessary so that he could present a complete defense, presumably by cross-examining any
eyewitnesses who testified at the grand jury and at trial with any inconsistencies between their
testimonies.
The usual practice in a trial court when a defendant alleges this kind of claim to grand jury
transcripts is for the trial judge to compare in camera the trial testimony of a witness with what
that witness said to the grand jury. But that is not the claim that was made in the trial court and on
direct appeal to the Ohio Supreme Court. There Davis claimed that the grand jury finding of
probable cause was based on illegal and incompetent evidence. The Ohio Supreme Court rejected
that claim because “an indictment valid on its face is not subject to challenge on the ground that
the grand jury acted on the basis of inadequate or incompetent evidence * * *." State v. Davis,
supra, citing United States v. Calandra, 414 U.S. 338, 344-345 (1974).
This is not the same claim as Davis is presenting in his Twelfth Ground for Relief. In this
Court he argues the transcript was necessary for presentation of a complete defense, i.e., by crossexamination, citing Crane v. Kentucky, 476 U.S. 683, 690 (1986), for the Sixth Amendment right
to present a full defense. Davis presents no citation to the record to show this particular grand jury
transcript claim was presented to the state courts with respect to the judgment he is now
challenging, the judgment on re-sentencing. The Magistrate Judge’s denial of discovery on this
claim was not contrary to law because the claim, thus framed, is procedurally defaulted.
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Eighteenth Ground for Relief (Disproportionate and Inappropriate Death Sentence)
In his Eighteenth Ground for Relief, Davis claims that the sole aggravating circumstance
in his case does not outweigh the mitigating evidence presented (Petition, ECF No. 6, PageID
8732, et seq.). The Petition asserts that to the extent the Ohio courts held to the contrary, their
decision(s) are contrary to or an unreasonable application of Supreme Court precedent. Id. at
PageID 8734 (without citing any such precedent).
For discovery on this claim:
Mr. Davis requests access to records from the Butler County Court
of Common Pleas of negotiated guilty pleas to aggravated murder.
He also requests a records deposition of the records custodian of the
Butler County Court of Common Pleas. Mr. Davis also seeks from
the Butler County Prosecutor’s Office all documents reflecting or
referencing procedures, policies, or guidelines regarding who
should be charged with capital murder in Butler County before or at
the time of Mr. Davis’s prosecution, including but not limited to any
forms upon which prosecutors could record or memorialize the
factors it considered in determining whether to seek a capital
indictment.
(Motion, ECF No. 38, PageID 9467-68.)
The Magistrate Judge denied the requested discovery, finding that the discovery sought
related to proportionality in indicting for capital murder as opposed to proportionality in the
imposition of the death sentence. The Magistrate Judge also noted the Warden’s assertion that this
claim was procedurally defaulted because it had never been raised in the state courts with respect
to the judgment now being collaterally attacked, the judgment on re-sentencing from March 2015.
On appeal, Davis offers no showing that the claim is not procedurally defaulted. He asserts
the Magistrate Judge misread his claim: he is not asserting disproportionality in indictments, but
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in sentences. Thus he seeks information about those cases which prima facie fit within the
statutory definition of aggravated murder with a capital specification but were either not indicted
that way or not convicted and sentenced that way.
While it is true that the Eighth Amendment prohibits sentences that are grossly
disproportionate to the criminal offense, the Supreme Court has never itself found that a capital
murder sentence was inappropriate or disproportionate under the circumstances of the particular
case, nor has it authorized habeas corpus courts to reweigh the appropriateness of a capital sentence
in a case where the statutory elements were proved. In this case the aggravating circumstance was
Davis’s prior murder conviction. Davis cites no Supreme Court precedent holding that a capital
sentence could be in violation of the Eighth Amendment under those circumstances. Therefore,
the Magistrate Judge’s Decision denying discovery on this Ground for Relief is neither contrary
to law nor an abuse of discretion.
Conclusion
For the foregoing reasons, Petitioner’s Appeal of the Magistrate Judge’s Decision denying
discovery is DENIED.
January 28, 2019.
S/Susan J. Dlott_______________
Susan J. Dlott
United States District Judge
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