Gapen v. Bobby

Filing 218

DECISION AND ORDER GRANTING MOTION TO VACATE STAY AND DENYING MOTION TO AMEND. Signed by Magistrate Judge Michael R. Merz on 2/17/2017. (kpf) Modified on 2/17/2017 to correct text(kpf).

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

:

Case No. 3:08-cv-280

- vs District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
DAVID BOBBY, Warden,

Respondent.

:

DECISION AND ORDER GRANTING MOTION TO VACATE STAY
AND DENYING MOTION TO AMEND

This capital habeas corpus case is before the Court on Petitioner’s Motion to Temporarily
Lift Stay and for Leave to File an Amended Petition to Address Newly Ripe Claims under Hurst
v. Florida (ECF No. 214). The Warden opposes the Motion to Amend but consents to lifting the
stay (ECF No. 215). Petitioner has filed a Reply in support (ECF No. 217).
The Motion to Vacate Stay is GRANTED and Petitioner’s Motion to Amend is deemed
filed as of January 12, 2017. This is without prejudice to or impact on the proceedings on
motion for leave to file a delayed motion for new trial currently pending before The Honorable
Mary Katherine Huffman of the Montgomery County Common Pleas Court.

The case is

ORDERED reopened on the docket of this Court.
A motion to amend a habeas petition is a pretrial non-dispositive motion which
Magistrate Judges are authorized to decide in the first instance. 28 U.S.C. § 636(b)(1)(A);
Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23,
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2016)(Sargus, C.J.)
A pending habeas corpus petition may be amended “as provided in the rules of procedure
applicable to civil actions.” 28 U.S.C. § 2242. The general standard for considering a motion to
amend under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman
v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc. -- the leave sought should,
as the rules require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983);
Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio
2013)(Rose, J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794,
*28 (S.D. Ohio March 31, 2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with

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dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990). ); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1
(Ovington, M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”). These considerations apply
as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998), quoting
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994).

The Parties’ Positions

Gapen seeks to add the following ground for relief to his Petition:
GAPEN’S
SIXTH,
EIGHTH,
AND
FOURTEENTH
AMENDMENT RIGHTS WERE VIOLATED BECAUSE THE
JURY’S
PENALTY
PHASE
FINDINGS
AND
RECOMMENDATION OF A DEATH SENTENCE WERE
ONLY ADVISORY AND THE JUDGE ACTUALLY MADE
THE CONCLUSIVE FINDINGS AND DETERMINATION
THAT GAPEN BE SENTENCED TO DEATH.
(ECF No. 214, Exh. 1, PageID 18587.) Gapen contends Hurst renders his death sentence
unconstitutional:
The Ohio death penalty scheme suffers from the same
constitutional deficiencies as the scheme ruled unconstitutional in
Florida because the jury in an Ohio capital case does not make
factual findings regarding the existence of mitigating factors or
explain why the statutory aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt. As in Florida, the
jury does not make any findings regarding the existence of
mitigating factors, the weight to be given to those mitigating
factors, or why the statutory aggravating circumstances outweigh
the mitigating factors - and the jury’s verdict is only a
recommendation.

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Id. at PageID 18581.
The Warden opposes the amendment on the ground that Ohio’s capital sentencing
scheme does not violate the Constitution as interpreted in Hurst (Opposition, ECF No. 215).

Analysis

Hurst Does Not Invalidate Ohio’s Capital Sentencing Scheme

In Hurst, supra, the Supreme Court was called upon to decide whether its prior decisions
upholding Florida’s capital punishment scheme in Spaziano v. Florida, 468 U.S. 447 (1984) and
Hildwin v. Florida, 490 U.S. 638 (1989), survived its holding in Ring v. Arizona, 536 U.S. 584
(2002). The Florida Supreme Court had relied on Spaziano and Hildwin, but the United States
Supreme Court expressly overruled those two decisions. 136 S. Ct. at 623. In Ring the Court
had applied the Apprendi line of cases to conclude “that Arizona’s capital sentencing scheme
violated Apprendi’s rule because the State allowed a judge to find facts necessary to sentence a
defendant to death.” Hurst, 136 S. Ct. at 621. In Arizona, “a judge could sentence Ring to death
only after independently [of the jury] finding at least one aggravating circumstance.” Id., quoting
Ring, 536 U.S. at 591. Had Ring’s judge not engaged in the independent factfinding of an
aggravating circumstance, the maximum sentence Ring could have received would have been a
life sentence. Hurst, 136 S.Ct. at 620. Justice Sotomayor continued:
The analysis the Ring Court applied to Arizona’s sentencing
scheme applies equally to Florida’s. Like Arizona at the time of
Ring, Florida does not require the jury to make the critical findings
necessary to impose the death penalty. Rather, Florida requires a
judge to find these facts. Fla. Stat. §921.141(3). Although Florida
incorporates an advisory jury verdict that Arizona lacked, we have
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previously made clear that this distinction is immaterial: “It is true
that in Florida the jury recommends a sentence, but it does not
make specific factual findings with regard to the existence of
mitigating or aggravating circumstances and its recommendation is
not binding on the trial judge. A Florida trial court no more has the
assistance of a jury’s findings of fact with respect to sentencing
issues than does a trial judge in Arizona.” Walton v. Arizona, 497
U.S. 639, 648, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990); accord,
State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) (“[T]he trial court
alone must make detailed findings about the existence and weight
of aggravating circumstances; it has no jury findings on which to
rely”).
Id. at 621-22.
The Warden reads Hurst narrowly as just overruling Spaziano and Hildwin and allowing
a capital sentencing scheme where the jury merely finds the facts necessary to make a defendant
death eligible, e.g., the existence of an aggravating circumstance (ECF No. 215, PageID 18597600). In contrast, Petitioner asserts that Hurst requires the trial jury to “properly determine the
existence of mitigating factors, the weight to be given to those mitigating factors, and whether
the statutory aggravating circumstances outweighed those mitigating factors beyond a reasonable
doubt.” (ECF No. 214, PageID 18583.)

In insisting that the jury must explain why the

aggravating circumstances outweigh the mitigating factors, Gapen may be calling for some form
of constitutionally required special verdict.
This Court believes the correct reading of Hurst is that the relative weight of aggravating
circumstances and mitigating factors is a question of fact akin to an element under the Apprendi
line of cases, that is, a fact necessary to be found before a particular punishment can be imposed,
e.g., a mandatory minimum sentence as in Alleyne v. United States. 570 U.S. ___, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013).
Hurst, however, does not invalidate Ohio’s capital sentencing scheme because Ohio’s
scheme is materially different from Florida’s. At the time of Gapen’s trial, Ohio law required
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that, before a sentence of death could be imposed, the jury must find, beyond a reasonable doubt,
that the aggravating circumstances outweighed the mitigating factors. That is to say, every fact
necessary for imposition of a death sentence, including the fact that the proved aggravating
circumstances outweigh the mitigating factors, had to be proved to the jury beyond a reasonable
doubt.In Ohio, unlike Florida, the trial judge could not find an aggravating circumstance the jury
had not already found beyond a reasonable doubt in the culpability phase of the capital trial.
It is true, of course, that the Ohio trial judge has to weigh the aggravating circumstances
against the mitigating factors and that weighing is independent of the jury’s weighing in the
sense that the judge must do it himself or herself. But that weighing is, so to speak, on top of the
jury’s weighing: if the jury does not find the aggravating circumstances outweigh the mitigating
factors, the judge cannot overrule that finding.
Nothing in the United States Constitution forbids a State from giving a defendant the
extra protection from a capital sentence that Ohio provides. The protection is parallel to that
provided by a motion for judgment of acquittal: a judge can acquit even if a jury has convicted if
the judge determines the evidence is insufficient. Likewise, in Ohio’s death penalty scheme, a
judge may conclude that the aggravating circumstances do not outweigh the mitigating factors in
a capital case and may sentence a defendant to a life term despite the jury’s finding on relative
weight and recommendation of death.
Hurst does not mandate jury sentencing in capital cases, the position Justice Breyer
believes the Eighth Amendment requires. Hurst, supra, at 624 (Breyer, J., concurring in the
judgment). It requires only that the jury take the penultimate step: make the necessary factual
finding that the aggravating circumstances outweigh the mitigating factors.
Because Hurst does not invalidate Ohio’s capital sentencing scheme, the proposed

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amendment would be futile.

Hurst Does Not Apply to Cases on Collateral Review

Subject to two narrow exceptions, a case that is decided after a defendant's conviction
and sentence become final may not provide the basis for federal habeas relief if it announces a
new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992);
Teague v. Lane, 489 U.S. 288 (1989). “Two exceptions to the Teague rule, however, permit the
retroactive application of a new rule whenever: 1) the rule places certain kinds of primary,
private individual conduct beyond the power of the criminal law-making authority to proscribe
or otherwise prohibits imposition of a certain type of punishment for a class of defendants
because of their status or offense; or 2) the rule announces a new “watershed” rule of criminal
procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” In re
Carl Green, 144 F.3d 384, 386 (6th Cir. 1998), citing Caspari v. Bohlen, 510 U.S. 383, 396
(1994).
A Supreme Court decision announces a new rule where the issue addressed was
susceptible to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-15
(1990). A new rule is “a rule that ... was not dictated by precedent existing at the time the
defendant’s conviction became final.” Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague
v. Lane, 489 U.S. 288, 301 (1989)(emphasis in original). For instance, the rule in Crawford v.
Washington, 541 U.S. 36 (2004), is a new rule, but does not fall within the “watershed”
exception to Teague. Whorton v. Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the
date Whorton was decided, the only rule the Supreme Court had identified as qualifying under

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the “watershed” exception is that adopted in Gideon v. Wainwright, 372 U.S. 335 (1963).
Whether a Supreme Court decision applies retroactively should be decided by the district
court in the first instance. Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004).
The rule announced in Hurst is plainly new within the meaning of Teague. It was not
dictated by precedent. Indeed Hildwin and Spaziano, overruled by Hurst, were the relevant
precedents. Hurst does not create a new substantive rule. Compare Atkins v. Virginia, 536 U.S.
304 (2002)(the intellectually disabled may not be executed), and Johnson v. United States, 135 S.
Ct. 2551 (2015)(declaring unconstitutionally vague the “residual” clause of the Armed Career
Criminal Act). Nor is it a watershed new rule of procedure. See Beard v. Banks, 542 U.S. 406,
415-16 (2004)(Gideon v. Wainwright might qualify under Teague’s second exception, but
Batson v Kentucky, for example, would not).
Petitioner argues he has good cause to amend in that the Florida and Delaware Supreme
Courts have held Hurst to be applicable retroactively (ECF No. 214, PageID 18581). But both of
those decisions were based on state law retroactivity doctrine. Nothing in Teague prohibits state
courts from giving retroactive effect, as a matter of state law, to new constitutional rules such as
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Danforth v. Minnesota, 552 U.S. 264, 280
(2008).
Because Hurst does not apply to cases in which the conviction became final on direct
appeal before January 2016, it has no application here and the requested amendment would
therefore be futile.

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Undue Delay

Gapen claims he has not acted in bad faith because his “request to amend is brought
within AEDPA’s one year statute of limitations.” (ECF No. 214, PageID 18582.) The Motion to
Amend was filed January 12, 2017, on the anniversary of Hurst. The fact that an amendment is
filed within the statute of limitations does not per se prove it was filed without undue delay. To
suggest that seven such Hurst motions on this judge’s docket and more on the dockets of other
judges of this Court, all filed within hours of one another on the day the statute ran or the day
before, were all filed without “undue delay” tests the credulity of the Court.
No finding on the undue delay factor is made in light of the rulings on futility.

Conclusion

For the foregoing reasons, the Motion to Amend is DENIED.

February 17, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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