Bays v. Warden Ohio State Penitentiary

Filing 103

DECISION AND ORDER - Respondent's Motion to Vacate is granted and Petitioner's Motion to Reconvene is denied, subject to reconsideration if Petitioner can demonstrate some purpose for Dr. Bergman's testimony at this stage of the case. The Court will proceed first to decide the § 2254(d)(1) and (d)(2) issues. In accordance with the schedule adopted by the Court initially, it is hereby ORDERED that Petitioner filed his reply/traverse not later than September 7, 2011. If Petitioner relies on the analysis in Lambert, supra, to attempt to meet his burden under 28 U.S.C. § 2254(d)(1), he shall do so explicitly in the reply/traverse. Signed by Magistrate Judge Michael R Merz on 7/6/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICHARD BAYS,
:
Petitioner,

Case No. 3:08-cv-076
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsWARDEN, Ohio State Penitentiary,
:
Respondent.

DECISION AND ORDER

This capital habeas corpus case is before the Court on Respondent’s Motion to Vacate the
Pending Evidentiary Hearing and Discovery, to Reconsider Prior Grant of an Evidentiary Hearing
an [sic] Discovery, and to Decide Bays’ Habeas Appeal on the State Court Record, in Light of
Cullen v. Pinholster, 563 U.S. ___ (2011) (Doc. No. 94). Petitioner opposes the Motion (Doc. No.
97) and seeks to reconvene the recessed evidentiary hearing to continue the cross-examination of
Dr. Barbra Bergman and to present the expert testimony of Dr. Stephen Greenspan (Doc. No. 98).
On September 3, 2010, the Magistrate Judge granted an evidentiary hearing on Petitioner’s
First, Second, and Sixth Grounds for Relief (Doc. No. 65). Respondent objected (Doc. No. 71), but
the District Judge overruled those Objections (Doc. No. 74) and a hearing was conducted on January
20-21, 2011 (Transcripts at Doc. Nos. 91, 92.) The Magistrate Judge permitted Respondent to call
Dr. Barbra Bergman, a psychologist, as a rebuttal witness over Petitioner’s opposition (Doc. Nos.
82-87). The Magistrate Judge recessed the hearing to permit Petitioner to depose Dr. Bergman.

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Before the hearing could be reconvened, Respondent sought reconsideration based on the April 4,
2011, decision of the Supreme Court in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 179 L.
Ed. 2d 557 (2011).
It is undisputed between the parties that Petitioner’s First, Second, and Sixth Grounds for
Relief were adjudicated on the merits by the Ohio courts. (See Warden’s Reply, Doc. No. 101,
PageID 1380, n. 2.) Pinholster clearly holds that with respect to such claims, a federal habeas court
must decide the questions presented by 28 U.S.C. § 2254(d)(1) and (2) on the basis of the record
before the state courts.
Accepting that holding, Petitioner contends that even if Pinholster controls consideration of
the evidence gathered in federal habeas, it does not prevent him from developing and presenting that
evidence (Petitioner’s Opposition, Doc. No. 97, PageID 1245). He argues this position is consistent
with Justice Thomas’s conclusion that Pinholster does not render § 2254(e)(2) meaningless, that a
habeas petitioner who can satisfy § 2254(d) and was diligent in the state courts may be eligible for
an evidentiary hearing. Pinholster, 131 S. Ct. at 1400-1401. Because this Court had already found
Petitioner to have been diligent in the state courts, Petitioner reasons he can proceed with his
evidentiary hearing despite Pinholster. Petitioner does not answer the question why a court would
want to take evidence it cannot consider.
Petitioner also argues that he can have an evidentiary hearing to develop new evidence which
would disprove “subsidiary” factual determinations made by the state courts. (Petitioner’s
Opposition, Doc. No. 97, PageID 1245-1247, relying on Lambert v. Blackwell, 387 F.3d 210 (3rd Cir.
2004); Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001); and Williams v. Beard, 637 F.3d 195 (3rd
Cir. 2011).) Respondent does not reply to this argument.

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This Court agrees that the Lambert Court’s reading of 28 U.S.C. § 2254(e)(1) is at least
arguable. How could the presumption of correctness provided in § 2254(e)(1) be overcome by
“clear and convincing evidence” unless the petitioner had some forum in which to present that “clear
and convincing evidence,” assuming such evidence was not already present in the state court record
and that the petitioner was not precluded from a hearing by the § 2254(e)(2) due diligence
requirement? On the other hand, the distinction between “subsidiary” factual findings and factual
“determinations” is also unclear.

As the Lambert Court acknowledged, “a comprehensive

interpretation of AEDPA's factual review scheme has yet to emerge from the federal courts.”
Lambert, 387 F.3d at 235. That observation remains true in 2011 after Pinholster.
The Third Circuit adhered to Lambert in its Williams decision, but that opinion was handed
down in March, 2011, before Pinholster. At this stage in the development of lower courts’
understanding of Pinholster, this Court is not certain whether § 2254(e)(1) will be thought by the
appellate courts to provide a basis for an evidentiary hearing to “undermine” “subsidiary” state court
factual findings. Petitioner here has stated his reliance on Lambert hypothetically – not arguing that
any particular evidence presented at the evidentiary hearing already held undermines any specific
state court finding of fact. (See Petitioner’s Opposition, Doc. No. 97, PageID 1246.)
Dr. Bergman was presented by the State as a rebuttal witness, presumably to the evidence
presented by Petitioner in his case in chief. The Court will not be considering Petitioner’s evidence
in chief at the evidentiary hearing in deciding the § 2254(d)(1) or (d)(2) issues, so it is unclear why
Petitioner now wishes to complete his cross-examination of Dr. Bergman, at least as to those issues.
Petitioner has also not even attempted to justify calling Dr. Greenspan on any basis.
Therefore, Respondent’s Motion to Vacate is granted and Petitioner’s Motion to Reconvene

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is denied, subject to reconsideration if Petitioner can demonstrate some purpose for Dr. Bergman’s
testimony at this stage of the case. The Court will proceed first to decide the § 2254(d)(1) and (d)(2)
issues. In accordance with the schedule adopted by the Court initially, it is hereby ORDERED that
Petitioner filed his reply/traverse not later than September 7, 2011. If Petitioner relies on the
analysis in Lambert, supra, to attempt to meet his burden under 28 U.S.C. § 2254(d)(1), he shall do
so explicitly in the reply/traverse.
July 6, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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