Wholaver v. Wetzel et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 11/18/2022. (mw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN E. WETZEL, et al.,
CIVIL ACTION NO. 1:11-CV-0164
THIS IS A CAPITAL CASE
Petitioner Ernest Wholaver filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 to seek relief from his 2004 convictions and death
sentences in the Dauphin County Court of Common Pleas. We previously found
that Wholaver demonstrated good cause for limited discovery from respondents.
(Doc. 73). Respondents now move to discharge their remaining discovery
obligations following Shinn v. Ramirez, 142 S. Ct. 1718 (2022), and Williams v.
Superintendent Mahanoy SCI, 45 F.4th 713 (3d Cir. 2022). For the reasons that
follow, we will deny respondents’ motion.
Factual Background and Procedural History
Wholaver was convicted of three counts of capital murder and related
offenses and sentenced to death for the murder of his wife, Jean Wholaver, and his
daughters, Victoria and Elizabeth. See Commonwealth v. Wholaver, 903 A.2d 1178,
1181 (Pa. 2006). The Pennsylvania Supreme Court twice affirmed Wholaver=s
convictions and death sentences on direct appeal,1 see Wholaver, 903 A.2d 1178;
Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010), and the Supreme Court of the
United States twice denied certiorari, see Wholaver v. Pennsylvania, 549 U.S. 1171
(2007) (mem.); Wholaver v. Pennsylvania, 562 U.S. 933 (2010) (mem.).
Wholaver initiated this federal habeas corpus action in January 2011 by
moving for appointment of counsel, a stay of execution, and leave to proceed in
forma pauperis. We granted his motion, appointed the Capital Habeas Unit of the
Federal Community Defender for the Eastern District of Pennsylvania as counsel,
and set a schedule for further proceedings. On August 2, 2011, Wholaver filed a pro
se petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 PA. CONS.
STAT. § 9541 et seq., in the Dauphin County Court of Common Pleas. The PCRA
court dismissed Wholaver’s pro se petition with instructions to appointed counsel to
file a counseled PCRA petition on Wholaver’s behalf. On August 31, 2011, on
appointed counsel’s motion, we stayed further proceedings in this court while
Wholaver exhausted his state court remedies.
Wholaver filed a counseled PCRA petition in September 2011, raising roughly
two dozen claims. The PCRA court dismissed all but four of those claims without
an evidentiary hearing, and dismissed the remaining claims after taking evidence
over the course of two evidentiary hearings. At various times throughout the PCRA
proceedings, Wholaver moved the PCRA court for discovery. The court allowed
Wholaver access to two juror questionnaires and ordered the Commonwealth to
A second direct appeal was permitted upon nunc pro tunc reinstatement of
appellate rights previously deemed to have been waived.
turn over all Brady material for, inter alia, jailhouse informants Robert Marley,
James Meddings, and Steve Stevens; the PCRA court otherwise denied Wholaver’s
Wholaver appealed the denial of PCRA relief to the Pennsylvania Supreme
Court. While Wholaver’s appeal was pending, he protectively filed a petition for
writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254, to preserve his
statute of limitations. In January 2018, the Pennsylvania Supreme Court affirmed
the PCRA court. See Commonwealth v. Wholaver, 177 A.3d 136 (Pa. 2018).
Wholaver then filed a successive PCRA petition; the PCRA court dismissed that
petition as well, and the Pennsylvania Supreme Court affirmed the PCRA court’s
decision in May 2020. See Commonwealth v. Wholaver, 234 A.3d 394 (Pa. 2020)
Wholaver filed a status report with this court advising that state proceedings
had concluded, and we thereafter issued orders lifting the stay and instituting a
schedule for discovery motion practice. Wholaver filed a motion for discovery
related to six of his claims. (Doc. 64). On September 28, 2021, we issued a
memorandum and order granting that motion in part, finding that Wholaver had
demonstrated good cause for limited discovery of certain specified categories of
evidence. (Docs. 73, 74).
As relevant here, we ordered respondents to produce three categories of
documents that would potentially support Wholaver’s claims that the
Commonwealth failed to disclose evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963). The first category pertains to Claim IV, which alleges that the
Commonwealth violated Brady and Napue v. Illinois, 360 U.S. 264 (1959), by failing
to disclose the full extent of the cooperation of government witness James
Meddings and by failing to correct Meddings’ false testimony about the extent of his
cooperation. (Doc. 73 at 9-10). We ordered respondents to produce specified
documents reflecting interactions, discussions, or negotiations with Meddings
regarding his status as a cooperating witness in the prosecution of Wholaver or in
any other law enforcement investigation at the time of or prior to Wholaver’s trial,
as well as documents pertaining to visits between investigators or prosecutors and
Meddings while he was housed in Dauphin County Prison. (Doc. 74 ¶¶ 1(b)-(d)).
The second category pertains to Claim V, which alleges that the
Commonwealth violated Brady by failing to disclose information concerning its
investigation of George Wagner as a potential suspect in the murders. (Doc. 73 at
11-13). Wholaver claims that in May 2017, while the PCRA proceedings were
pending, he and his counsel learned that the Investigation Discovery Channel had
aired a television program about his case, entitled “Murders Under the Mistletoe.”
(Id. at 11). According to Wholaver, that program featured individuals involved in
the prosecution of his case discussing their investigation into Wagner based on,
inter alia, rumors of a possible romantic relationship between Wagner and Jean
Wholaver. (Id.) We ordered respondents to produce specified documents they or
their agents provided to the Investigation Discovery Channel and affiliated groups
or individuals involved in the making of the television program that would
constitute Brady evidence as to Wagner, including documents that speak to the
Commonwealth’s identification of Wagner as an alternative suspect in the murders
and any evidence implicating him in the murders. (Doc. 74 ¶ 1(e)).
The third category pertains to Claim VI, which alleges that the
Commonwealth violated Brady by failing to disclose information that could have
been used to impeach jailhouse informant Robert Marley. (Doc. 73 at 13-15). We
ordered respondents to produce specified documents relating to Marley’s
cooperation with any law enforcement agency prior to or during the prosecution of
Wholaver. (Doc. 74 ¶¶ 1(f)-(h)).
On August 21, 2022, respondents filed the instant motion, which seeks to
discharge their remaining discovery obligations. (Doc. 96). In his brief opposing
the motion, Wholaver represents that the only outstanding discovery relates to
Wholaver’s Brady claims described above. (See Doc. 98 ¶¶ 7-8). Respondents have
not disputed that representation. Respondents’ motion is now ripe for disposition.2
Rule 6(a) of the Rules Governing ' 2254 Cases provides that a judge may, “for
good cause,” authorize a federal habeas petitioner to conduct discovery. See 28
U.S.C. ' 2254 Rule 6(a). Good cause exists when “specific allegations before the
court show reason to believe that the petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled to relief.” See Bracy v. Gramley,
Respondents did not file a separate brief in support of their motion as
required by Local Rule 7.5. See M.D. PA. L.R. 7.5. We will exercise our discretion to
decide the motion rather than deeming it withdrawn because the motion includes
the legal authority respondents rely on and Wholaver has filed an opposing brief
addressing that authority.
520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); see
also Lee v. Glunt, 667 F.3d 397, 404 (3d Cir. 2012) (citing Williams v. Beard, 637 F.3d
195, 209 (3d Cir. 2011)). The scope and extent of discovery in a given case are
matters vested to the discretion of the district court. See Bracey, 520 U.S. at 909.
Respondents seek to be excused from their remaining discovery obligations
on the ground that “no legitimate ends can be served by further discovery” in this
case following Shinn, 142 S. Ct. at 1738-39, and Williams, 45 F.4th at 724.
(See Doc. 97 ¶ 5). They apparently read these decisions to bar any factual
development in federal habeas proceedings through either discovery or an
evidentiary hearing. Our review of Shinn and Williams reveals no such sweeping
In Shinn, the Supreme Court of the United States addressed whether federal
habeas courts may consider new evidence not developed in state court when a
prisoner relies on Martinez v. Ryan, 566 U.S. 1 (2012), to establish cause for
procedurally defaulting a claim of ineffective assistance of trial counsel. See Shinn,
142 S. Ct. at 1728. Martinez held that the negligence of the prisoner’s state
postconviction counsel can furnish such cause if state postconviction proceedings
provide the first opportunity to raise the claim that trial counsel was ineffective.
See Martinez, 566 U.S. at 17. The issue in Shinn was whether the negligence of
postconviction counsel in failing to develop the factual basis of the claim in state
court permits a federal habeas court to hold an evidentiary hearing or otherwise
consider new evidence without requiring the prisoner to satisfy the “stringent
requirements” of 28 U.S.C. § 2254(e)(2).3 See Shinn, 142 S. Ct. at 1735.
The Supreme Court held that the equitable rule announced in Martinez does
not permit a federal court to dispense with § 2254(e)(2)’s narrow limits on
considering new evidence. See Shinn, 142 S. Ct. at 1728. Section 2254(e)(2) applies
if a prisoner has “failed to develop the factual basis of a claim” in state court. See 28
U.S.C. § 2254(e)(2). The Court reasoned that a prisoner is “at fault” and responsible
for failing to develop the record in state court even if that failure is due to the
negligence of his state postconviction counsel. See id. at 1734 (quoting Williams v.
Taylor, 529 U.S. 420, 432 (2000)). The Court based this conclusion on the rule that a
prisoner bears the responsibility for all attorney errors in state postconviction
proceedings because there is no constitutional right to counsel in those
proceedings. See id. at 1735 (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991),
28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
and Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)). Although Martinez recognized an
equitable exception to that rule, the Court concluded it had no power to redefine
when a prisoner “has failed to develop the factual basis of a claim in State court
proceedings” under § 2254(e)(2). See id. at 1736 (quoting 28 U.S.C. § 2254(e)(2)).
Thus, the criteria of § 2254(e)(2) must be satisfied before a federal court may hold an
evidentiary hearing or otherwise consider new evidence on the merits of a defaulted
ineffective assistance of trial counsel claim. See id. at 1738. Moreover, because a
Martinez hearing on cause and prejudice would serve no purpose if the evidence
developed there could not be considered on the merits of the claim, a federal court
may not hold an evidentiary hearing or otherwise consider new evidence to assess
cause and prejudice under Martinez. See id. at 1738-39.
In Williams, the United States Court of Appeals for the Third Circuit followed
Shinn and held that a prisoner could not develop the facts to support a claim of
ineffective assistance of trial counsel in an evidentiary hearing in federal court
where his state postconviction counsel had failed to develop the factual basis for the
claim in state court. See Williams, 45 F.4th at 720 (citing Shinn, 142 S. Ct. at 1733).
The Third Circuit also concluded that Shinn foreclosed the prisoner’s argument
that he should be allowed to expand the state court record through depositions or
other discovery without satisfying the requirements of § 2254(e)(2) because the
statute by its terms applies only to an “evidentiary hearing.” See id. (citing Shinn,
142 S. Ct. at 1738).
We are not persuaded that either Shinn or Williams require us to excuse
respondents from producing the Brady evidence specified in our discovery order.
Both Shinn and Williams address the application of § 2254(e)(2) in the context of the
Martinez rule, where a prisoner is deemed to be “at fault” for his state
postconviction counsel’s failure to develop the record in state court. See Shinn, 142
S. Ct. at 1735; Williams, 45 F.4th at 723. Neither decision addresses the completely
different issue of the extent of a federal court’s authority to direct the government
to produce Brady evidence when a prisoner has shown good cause for its discovery
under Rule 6(a) of the Rules Governing ' 2254 Cases.
We also note that Shinn reaffirmed that a prisoner must satisfy the criteria of
§ 2254(e)(2) only if he is “‘at fault’ for the undeveloped record in state court.’” See
Shinn, 142 S. Ct. at 1738 (quoting Williams, 529 U.S. at 432). “If there has been no
lack of diligence at the relevant stages in the state proceedings, the prisoner has not
‘failed to develop’ the facts under § 2254(e)(2)’s opening clause, and he will be
excused from showing compliance with the balance of the subsection’s
requirements.” Williams, 529 U.S. at 437 (quoting 28 U.S.C. § 2254(e)(2)). Diligence
for this purpose “depends upon whether the prisoner made a reasonable attempt,
in light of the information available at the time, to investigate and pursue claims in
state court.” See id. at 435.
Wholaver claims that any failure to develop the factual basis of his Brady
claim in state court is not his fault but instead is due to the Commonwealth’s
suppression of the Brady evidence. (See Doc. 98 ¶ 16). His discovery motion
recounted his unsuccessful efforts to obtain the Brady evidence in state court and
from the Commonwealth voluntarily. (See Doc. 64 ¶¶ 4-6, 67-71, 82-84). If Wholaver
can show that he was sufficiently diligent in attempting to develop the factual basis
of his Brady claims in state court, then § 2254(e)(2) would impose no limitations on
our consideration of the Brady evidence we have ordered respondents to produce.
See Williams, 529 U.S. at 437.
We cannot assess Wholaver’s diligence for purposes of § 2254(e)(2) until
respondents have complied with our discovery order and produced any remaining
Brady evidence. At this stage, Wholaver’s allegations that he made diligent efforts
to obtain undisclosed Brady evidence in state court and that his efforts have been
thwarted by the Commonwealth’s withholding of that evidence are sufficient to
Ashow reason to believe” that he “may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief.@ See Bracy, 520 U.S. at 908-09 (quoting
Harris, 394 U.S. at 300). Therefore, we perceive no reason to reconsider our
decision that Wholaver has shown good cause under Rule 6(a) of the Rules
Governing ' 2254 Cases for discovery of the documents specified in our
September 28, 2021 Order. (Docs. 73, 74).
We are not persuaded that respondents should be excused from their
remaining discovery obligations under our September 28, 2021 Order. (Doc. 74).
We will thus deny respondents’ motion. (Doc. 96). An appropriate order shall issue.
/S/CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
November 18, 2022
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