Waddy v. Coyle, et al

Filing 257

DECISION AND ORDER DENYING MOTION FOR DISCOVERY 253 Motion for Discovery. Signed by Magistrate Judge Michael R Merz on 9/18/2014. (srb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WARREN WADDY,
Petitioner,

Case No. 3:98-cv-084
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-v:
NORMAN ROBINSON, Warden,
Respondent.

DECISION AND ORDER DENYING MOTION FOR DISCOVERY
This capital habeas corpus case is before the Court on Petitioner Waddy’s Motion to
Conduct Discovery (Doc. No. 253) which the Warden opposes (Doc. No. 254); Waddy has filed
a Reply in support (Doc. No. 255).
Waddy seeks to conduct discovery relative to his second and twenty-first Grounds for
Relief which he has pled as follows:
SECOND GROUND FOR RELIEF:
MR. WADDY WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL TO WHICH HE WAS ENTITLED UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION WHERE TRIAL OUNSEL
FAILED TO OBTAIN A NEUROPSYCHOLOGICAL
EVALUATION WHICH WOULD HAVE REVEALED
CEREBRAL DYSFUNCTION AND BECAUSE COUNSEL
FAILED TO INSURE THAT A PROPER INVESTIGATION OF
ALL
POTENTIAL
MITIGATING
FACTORS
WAS
CONDUCTED BEFORE TRIAL. MR. WADDY WAS
PREJUDICED
BY
THESE
FAILURES
BECAUSE
SUBSTANTIAL MITIGATION EXISTS BUT WAS NOT
PRESENTED TO THE JURY FOR CONSIDERATION DURING
SENTENCING PHASE DELIBERATIONS.
1

TWENTY-FIRST GROUND FOR RELIEF:
COURT APPOINTED ATKINS COUNSEL RENDERED
INEFFECTIVE ASSISTANCE TO MR. WADDY AT THE
TRIAL LEVEL THEREBY DENYING WADDY HIS RIGHT TO
COUNSEL IN VIOLATION OF HIS SIXTH, EIGHTH AND
FOURTEENTH AMENDMENT RIGHTS.
(Second1 Amended Petition, Doc. No. 208, PageID 1962, 2019.)

Standard for Discovery in Habeas Corpus Cases

Waddy moves for discovery under Rule 6 of the Rules Governing § 2254 Cases and “the
Federal Rules of Civil Procedure.” (Motion, Doc. No. 253, PageID 19444.) Rule 12 of the
Rules Governing § 2254 Cases provides “[t]he Federal Rules of Civil Procedure, to the extent
they are not inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.”
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). Before determining whether
discovery is warranted, the Court must first identify the essential elements of the claim on which
discovery is sought. Bracy, 520 U.S. at 904, citing United States v. Armstrong, 517 U.S. 456,
468 (1996). 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
1

Doc. No. 208 is in fact Waddy’s Second Amended Petition, although not labeled in that way by Waddy’s counsel.
It will be referred to hereinafter as the Second Amended Petition.

2

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 U.S. 842 (2004), quoting Stanford,
266 F.3d at 460.
In conducting the analysis that led to granting discovery in Bracy v. Gramley, supra, the
Supreme Court provided at least part of the template which lower courts should follow in
deciding discovery motions in habeas corpus cases.
First of all, it identified the claims to which the sought discovery in that case related and
specifically determined whether they were claims upon which habeas corpus relief could be
granted at all.

Federal habeas corpus is, of course, available only to correct wrongs of

constitutional dimension. 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v.
Florida, 463 U.S. 939 (1983). In Bracy the claim was that the trial judge was biased in favor of
other defendants who had bribed him and therefore had a motive to be harsh with those, like the
petitioner, who had not.

The Supreme Court distinguished this kind of claim of judicial

disqualification from other non-constitutional claims which would not be cognizable in habeas
corpus. This part of the Bracy analysis makes it clear that discovery should not be authorized on
allegations in a habeas corpus petition which do not state a claim upon which habeas corpus
relief can be granted.
Secondly, the Supreme Court identified circumstances which corroborated Bracy’s theory
of relief and request for discovery:
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
3

at the outset that, if petitioner were convicted, it would introduce
petitioner's then-pending 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 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.
Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory
allegations." Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004), cert. denied, 544 U.S. 1003
(2005), citing Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d

4

at 460. "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the
petitioner must set forth specific allegations of fact." Williams, 380 F.3d at 974, citing Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
Waddy summarizes his understanding of Rule 6 and Bracy as follows:
Pursuant to Bracy, a petitioner demonstrates “good cause” when he
or she can cite to a theory, premised on specific allegations, to
support a colorable constitutional claim. That theory can be
speculative, in that the petitioner need not have any evidence that
his theory is correct. The petitioner also need not show that he
ultimately will prevail on his underlying constitutional claim in
order to show good cause.

(Motion, Doc. No. 253, PageID 19446.) Waddy asserts this summary, and particularly the
appropriateness of discovery even on claims that are “speculative,” is supported by Wellons v.
Hall, 558 U.S. 220 (2010), a per curiam GVR decision2 of the Supreme Court.
This Court doubts seriously that the Supreme Court had any intention of using Wellons to
modify the standard for discovery under Rule 6. Bracy, its leading case on the subject, is not
mentioned.

The Court did not endorse discovery on petitioner’s misconduct claims, but

remanded for the Eleventh Circuit to make that decision. It appeared to endorse an evidentiary
hearing, but this decision was handed down only one term before the Court radically curtailed
evidentiary hearings in habeas cases in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388
(2011),
The Eleventh Circuit on remand also adopted no new law on habeas discovery. Instead,
2
The Supreme Court uses this description for a decision which grants certiorari, vacates the
judgment below, and remands. Wellons at 225. Such a decision is appropriate “when
intervening developments . . . reveal a reasonable probability that the decision below rests upon a
premise that the lower court would reject if given the opportunity for further consideration, and
where it appears that such a redetermination may determine the ultimate outcome of the matter.”
Id., quoting Lawrence v. Chater, 516 U.S. 163, 167, 116 S. Ct. 604, 133 L. Ed. 2d 545 (1996)
(per curiam).

5

it held “[i]n light of the extraordinary circumstances3 of this case, and for purposes of this case
alone. . . .” it reversed the district court’s denial of discovery and an evidentiary hearing and
remanded for “discovery . . . and an evidentiary hearing as [the district court] sees fit.” Wellons
v. Hall, 603 F.3d 1236, 1237 (11th Cir. 2010).
The Court concludes that Wellons will support discovery only in cases where a petitioner
can present truly bizarre facts and speculation about what caused those facts to occur. Nothing
like that exists in this case.
Waddy also asserts that Pinholster, supra, has no impact on habeas discovery because
“Ohio’s post-conviction review process provides an individual with effectively no procedural
due process.” (Motion, Doc. No. 253, PageID 19448.)
Waddy’s counsel overread Pinholster. Nothing in that decision 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.
Waddy also asserts that liberal discovery should be granted because this is a capital case
(Motion, Doc. No. 253, PageID 19454).

However, the Supreme Court has never adopted

discovery standards particular to capital habeas cases.

Discovery Sought on the Second Ground, Ineffective Assistance of Counsel in Mitigation

With respect to his claim of ineffective assistance of trial counsel at the mitigation stage,
Waddy seeks to depose his trial counsel, the Honorable G. Gary Tyack and Daniel M. Hunt, and
the mitigation specialist they hired, Stacey Michael. These requests are said to be supported by
the psychological evaluation of Dr. Jeffrey Smalldon and an affidavit from James Crates. Dr.
3

The “extraordinary circumstances” were the gift of a chocolate penis to the judge and chocolate breasts to the
bailiff in a capital trial.

6

Smalldon evaluated Waddy on various dates in March and April, 1995, and produced a report of
that evaluation dated March 6, 1996 (Return of Writ, Doc. No. 228-3, PageID 6924-47). Mr.
Crates’ Affidavit is dated March 13, 1996. Id. at 6949-6966. This habeas corpus case was
opened November 14, 1997 (Motion to Proceed in forma pauperis, Doc, No. 1). The Petition,
filed February 26, 1998, contained the following Ground for Relief alleging ineffective
assistance of trial counsel in the mitigation phase of the trial:
SECOND GROUND FOR RELIEF:
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL TO WHICH HE WAS ENTITLED UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION WHERE TRIAL
COUNSEL
FAILED
TO
OBTAIN
A
NEUROPSYCHOLOGICAL EVALUATION WHICH WOULD
HAVE REVEALED CEREBRAL DYSFUNCTION AND
BECAUSE COUNSEL FAILED TO INSURE THAT A PROPER
INVESTIGATION OF ALL POTENTIAL MITIGATING
FACTORS WAS CONDUCTED BEFORE TRIAL. PETITIONER
WAS PREJUDICED BY THESE FAILURES BECAUSE
SUBSTANTIAL MITIGATION EXISTS BUT WAS NOT
PRESENTED TO THE JURY FOR CONSIDERATION DURING
SELECTION PHASE4 DELIBERATIONS.

(Doc. No. 6, PageID 709.)
On February 23, 2000, the Court granted in part and denied in part Waddy’s then-pending
Motion for Discovery (Doc. No. 75; Order at Doc. No. 90). This included all discovery sought
on Waddy’s claim of ineffective assistance of trial counsel in the mitigation phase. The Order
also provided “[a]ll discovery shall be completed by May 31, 2000.” (Doc. No. 90, p. 3.) The
time for completion was later extended to September 30, 2000 (Doc. No. 107). Waddy did not

4

The context makes clear that counsel are here referring to the mitigation phase or the phase of a capital trial at
which the jury “selects” the sentence to recommend.

7

seek to depose Judge Tyack, Mr. Hunt,5 or Ms. Michael in 2000. The Court set a discovery cutoff regarding Waddy’s claim of ineffective assistance of trial counsel in mitigation of almost
fourteen years ago and Waddy has not shown good cause to excuse his failure to depose these
persons before the cut-off. The fact that he has new counsel certainly does not warrant starting
over in the discovery process.

Discovery Sought on the Twenty-First Ground:
Proceedings

Ineffective Assistance in Atkins

In his Twenty-First Ground for Relief, Waddy asserts he received ineffective assistance
of trial counsel in presenting his Atkins claim to the Ohio courts.
Atkins v. Virginia, 536 U.S. 304 (2002), recognized a new constitutional right, to wit, that
execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the
Eighth Amendment.
Since Atkins a consensus has developed among psychologists that the term "mental
retardation" should be avoided as a category and "intellectual disability" is now the preferred
term. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders,
31 (5th Ed. 2013); American Association on Intellectual and Developmental Disabilities,
Intellectual Disabilities; Definition, Classification, and Systems of Support, 3, 6, (11th Ed.
2010). The term “intellectual disability” now has the same legal meaning as the term “mental
retardation” did in Atkins. Hall v. Florida, 134 S. Ct. 1986 (2014).

Thus it is now legally

correct to say that to execute a person with an intellectual disability would constitute cruel and
unusual punishment.
5

Mr. Hunt may be deceased. Prior Orders of the Court refer to Judge Tyack as Waddy’s “surviving” trial attorney.

8

Waddy begins6 his argument on his Twenty-First Ground for Relief by asserting that
there is a right to counsel in a proceeding to determine whether a person has an intellectual
disability so as to prevent his or her execution. Waddy argues by analogy from Powell v.
Alabama, 287 U.S. 45, 68-69 (1932)(right to counsel in a state capital case), and cites State v.
Burke, 2005-Ohio-7020, 2005 Ohio App. LEXIS 6285 (10th Dist. Dec. 30, 2005)(holding an
Ohio capital prisoner was entitled to two death-certified counsel in a post-Atkins proceeding
under Ohio Revised Code § 2953.21).
In order to prevail on his Twenty-First Ground for Relief, however, Waddy must
establish that he had a constitutional right to effective assistance of counsel in his post-Atkins
proceeding under Ohio Revised Code § 2953.21.

Only violations of the United States

Constitution can ground federal habeas relief. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562
U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983).

Burke

recognizes a rule-based right to death-certified counsel in an Atkins proceeding. A habeas corpus
petitioner sentenced to death has a statutory right to appointed counsel. 18 U.S.C. § 3599(a)(2),
formerly 21 U.S.C. § 848(q). But Waddy cites no Sixth Circuit authority, much less any clearly
established Supreme Court precedent, holding that he had a constitutional right to effective
assistance of counsel in his post-Atkins proceeding. The citations of Gideon v. Wainwright, 372
U.S. 335 (1963)(right to counsel in a state felony case), and West Virginia State Board of
Education v, Barnette, 319 U.S. 624 (9143)(right of religiously-motivated school children not to
be compelled to recite the Pledge of Allegiance) are simply not on point.
The Warden claims the question is readily answered by the lack of any constitutional

6

The Court ignores as surplusage ¶ 294 which states “Mr. Waddy incorporates by reference all the allegations
contained in this petition as if fully rewritten herein.”

9

right to representation in post-conviction collateral attack proceedings (Memorandum in
Opposition, Doc. No. 254, PageID 19473-74).
As Waddy notes, the question only arises for that class of persons who had been
sentenced to death before Atkins but had not yet been executed (Second Amended Petition, Doc.
No. 208, PageID 2022, ¶ 270). For those not yet tried as of the time Atkins was handed down,
the intellectual disability issue will be a trial issue on which defendants will be entitled to the
same constitutionally effective assistance of counsel as they are on all other issues.
Waddy’s observation that Atkins is “retroactive” is also not dispositive. Id. at PageID
2021, ¶ 269. Atkins is retroactive in the sense that it applies to persons already condemned to
death at the time it was decided. But courts have also held it does not entitle those persons to a
new trial. See, e.g., Burke, supra.; State v. Lott, 97 Ohio St. 3d 303 (2002). The Supreme Court
has even refused to give res judicata effect to pre-Atkins determinations by state courts of
intellectual disability. Bies v. Bobby, 556 U.S. 825 (2009). In Atkins itself and again in Bies, the
Supreme Court approved state selection of procedures for post-Atkins decisions of intellectual
disability for persons capitally sentenced before Atkins.7
Waddy relies on Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), which did hold that
there is a constitutional right to effective assistance of counsel in post-Atkins proceedings.
However, this Court has rejected that claim despite Hooks. Bays v. Warden, 2013 U.S. Dist.
LEXIS 119480 (S.D. Ohio 2013)(Merz, M.J.), adopted 2014 U.S. Dist. LEXIS 627 (S.D. Ohio
2014)(Rose, D.J.) The same result was reached in Hill v. Anderson, 2014 U.S. Dist. LEXIS
86411 (N.D. Ohio 2014)(Adams, D.J.), and in Williams v. Mitchell, 2012 U.S. Dist. LEXIS
141852 (N.D. Ohio 2012)(Nugent, D.J.) Waddy identifies no court which has followed Hooks.
7
In Bies the State had conceded at trial and the trial judge had found in post-conviction that the petitioner was
mentally retarded. This Court and the Sixth Circuit held that finding was entitled to res judicata effect, but the
Supreme Court unanimously reversed, requiring Bies to proceed under State v. Lott.

10

Prospectively this Court has always assured that capital habeas petitioners with Atkins
claims had death-certified counsel to represent them in those post-Atkins Ohio Revised Code §
2953.21 proceedings. But viewing the question retrospectively, it is far from clear that a capital
petitioner who received legal assistance in such a proceeding which fell below the Strickland v.
Washington standard would on that basis be entitled to habeas corpus relief.
Even if the Court assumes arguendo that there is a constitutional right to effective
assistance of counsel in post-Atkins proceedings under Lott, that still would not entitle Waddy to
the discovery he seeks on his Twenty-First Ground for Relief because he has not presented that
claim to the Ohio courts.
Waddy asserts “[t]he state offers no forum in which a petitioner can challenge the
effectiveness of Atkins counsel.” (Motion, Doc. No. 253, PageID 19452). On the contrary, Ohio
provides a forum under Ohio Revised Code § 2953.21 to litigate claims of constitutional error in
criminal proceedings. Waddy cites no authority for the proposition that his present claims,
which rely largely on evidence outside the state court record in the Lott proceeding, could not be
brought in an Ohio post-conviction proceeding.8 It is true that Ohio courts have, in the past,
been unaccommodating of requests for discovery and evidentiary hearings in capital cases under
Ohio Revised Code § 2953.21, but more recent cases have been more liberal in that regard.
Indeed, in this case, the Tenth District reversed a denial of evidentiary hearing.
Because there is no clearly established right to constitutionally effective assistance of
counsel in post-Atkins intellectual disability proceedings and because, even if there is such a

8

The other usual forum for ineffective assistance of trial counsel claims – direct appeal – was not available here
because of the reliance on extra-record evidence and because Waddy was represented on appeal by the same
attorneys who litigated the Atkins proceeding in the trial court.

11

right, Waddy has not presented a claim based on that right to the Ohio courts, his request to
depose all of his post-Atkins counsel is DENIED.
September 18, 2014.
s/ Michael R. Merz
United States Magistrate Judge

12

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