Gapen v. Bobby

Filing 91

DECISION AND ORDER - Petitioner's request to depose his appellate counsel is related to his need to show excusing cause and prejudice related to his Tenth and Eighteenth Grounds for Relief. Cullen in no way addresses use of discovery, expansion of the record, or evidentiary hearing for this purpose. As the Court has previously held, it is not required to decide procedural default claims prior to authorizing discovery. Therefore the depositions of direct appeal counsel may be taken as previously authorized. All discovery authorized herein shall be completed by September 1, 2011. Signed by Magistrate Judge Michael R Merz on 6/10/2011. (kpf1)

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

:

- vs -

Case No. 3:08-cv-280
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

DAVID BOBBY, Warden,
Respondent.

:

DECISION AND ORDER

This capital habeas corpus case is before the Court on Respondent’s Motion to Stay
Discovery and for Reconsideration of the Order Granting Discovery (Doc. No. 85) in light of the
Supreme Court’s decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 179 L. Ed. 2d 557
(2011). The Court temporarily granted the stay to allow briefing (Doc. No. 86) and those
memoranda have now been filed (Doc. Nos. 87, 89, 90.)
In an Order filed December 23, 2010, the Magistrate Judge allowed limited depositions of
trial counsel David Greer and Bobby Joe Cox on Gapen’s claims of ineffective assistance of trial
counsel (Grounds Ten, Eleven, and Twelve) (Doc. No. 71). Depositions were also allowed of direct
appeal counsel Robert Lowe, Stephen Ferrell, and Jane Perry on Gapen’s claims of ineffective
assistance of appellate counsel. Id.1 Although this discovery was allowed in December 2010, and

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Petitioner’s other requested discovery was denied. Petitioner has appealed from that
decision (Doc. No. 74) and the appeal remains pending for decision by Judge Rice.
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an April 30, 2011, discovery cut-off set, none of the five depositions had been taken as of April 7,
2011, the date the Court temporarily stayed discovery pending briefing on Cullen’s impact.
The Grounds for Relief on which discovery was allowed are as follows:
Tenth Ground for Relief:
Gapen was denied the effective assistance of counsel in the voir dire
phase of his capital trial, thereby depriving him of his rights to due
process and a fair and impartial jury in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution
A. Counsel Failed To Adequately Voir Dire And Strike – For Cause
Or Otherwise – A Juror Who Was Biased And Unable To Render A
Fair And Impartial Verdict
B. Counsel Failed To Adequately Voir Dire and Strike A Prospective
Juror Who Would Automatically Vote For a Sentence of Death
Eleventh Ground for Relief:
Gapen was denied his Sixth Amendment right to effective assistance
of counsel during his capital trial when his trial counsel failed to
present evidence that Gapen did not act with prior calculation and
design in the murder of Jesica Young.
Twelfth Ground for Relief:
Gapen was denied the effective assistance of counsel during the
penalty phase of his trial in violation of the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution
A. Gapen was denied the effective assistance of counsel when his
counsel failed to fully investigate and present mitigating evidence
relevant to the overriding issues in his case
B. Gapen’s rights to effective assistance of counsel were violated
when counsel failed to object to readmission of all trial phase
evidence for the sentencing phase of his capital trial.
C. Gapen’s rights to effective assistance of counsel during the
sentencing phase of his capital trial were violated when counsel failed
to object to the trial court’s erroneous instructions to the jury
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allowing the jury to determine what evidence was relevant for
consideration and weighing during the death penalty calculus.
Eighteenth Ground for Relief:
Gapen was denied the effective assistance of appellate counsel on his
sole appeal of right to the Supreme Court of Ohio and as such his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution were violated.

Respondent now argues that Cullen undercuts this Court’s allowance of all the discovery
permitted in this case in the December Order. First, he argues that Cullen requires a district court
to decide whether a state court’s adjudication of the merits of a claim is contrary to or an objectively
unreasonable application of clearly established Supreme Court precedent – the § 2254(d)(1) question
– solely on the basis of the record before the state court (Supplemental Memorandum, Doc. No. 87,
PageID 1643). The Magistrate Judge concurs in that reading of Cullen; the Supreme Court
expressly held “that review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” 131 S. Ct. at 1398.
But then Respondent attempts to extend Cullen:
In holding that the record under review is limited to the record before
the state court, Pinholster2 also necessarily requires the federal court
to determine as a threshold matter, before permitting the
development of new evidence, whether the petitioner has properly
presented his claims to the state courts.
(Supplemental Memorandum, Doc. No. 87, PageID 1644, emphasis supplied). This parallels
arguments that capital case respondents have made in the past that the Court must decide whether

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It is customary for shortened references to Supreme Court decisions to be to the firstnamed party. E.g., Brown as a short reference for Brown v. Board of Education, 347 U.S. 483
(1954). The Court has followed that practice in shortening Cullen v. Pinholster to Cullen.
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a claim has been procedurally defaulted before granting discovery. The Court agrees that, as a
logical matter, it must decide whether a claim has been procedurally defaulted or whether the state
court decision satisfies § 2254(d)(1) before it considers on the merits any newly-acquired evidence
on such claims. But logical priority does not dictate temporal priority.
Cullen does not purport to make any change in the habeas discovery practice at all or to
dictate any sequence in which decisions in habeas corpus cases must be made. It may well be that,
in a given case, the discovery sought and arguably allowable under Habeas Rule 6 and Bracy v.
Gramley, 520 U.S. 899 (1997), would be so extensive that it would best suit judicial economy to
decide the procedural default and/or § 2254(d)(1) issues before deciding whether discovery would
be allowed. On the other hand, capital litigation is so protracted that it might serve judicial economy
to allow depositions while memories are fresher. Indeed, this Court has had capital cases where trial
counsel could not be deposed because they were deceased by the time the issue arose.
On its face, Cullen decides a narrow question: what evidence can a federal habeas court
consider in deciding the § 2254(d)(1) issue. Petitioner’s Memorandum recites all of the possible
questions related to evidence in a habeas case which Cullen did not decide. Respondent buttresses
his attempted logical extensions of Cullen by string citing district and circuit court cases since
Cullen which largely rely on it solely for its core holding.
Petitioner concedes that his Eleventh Ground for Relief was adjudicated on the merits by the
state courts (Memorandum, Doc. No. 89, PageID 1655). Accordingly, permission to depose trial
counsel as to that Ground for Relief is withdrawn.
Respondent urges that the Twelfth Ground for Relief was also adjudicated on the merits
(Memorandum, Doc. No. 87, PageID 1645). Petitioner responds that there was no state court

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decision on the prejudice prong of the Strickland standard by the state courts (Memorandum, Doc.
No. 89, PageID 1656). But the Strickland test is conjunctive – a petitioner must show both deficient
performance and prejudice. Therefore a state court decision that a habeas petitioner failed to meet
either one of the prongs on the merits is a decision on the merits of the whole claim. That is what
happened here in the state courts. Accordingly, permission to depose trial counsel on the Twelfth
Ground for Relief is withdrawn.
Petitioner’s request to depose his appellate counsel is related to his need to show excusing
cause and prejudice related to his Tenth and Eighteenth Grounds for Relief. Cullen in no way
addresses use of discovery, expansion of the record, or evidentiary hearing for this purpose. As the
Court has previously held, it is not required to decide procedural default claims prior to authorizing
discovery. Therefore the depositions of direct appeal counsel may be taken as previously
authorized.
All discovery authorized herein shall be completed by September 1, 2011.
June 10, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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