Quintero v. Bell
Filing
93
ORDER re 87 Motion to Expand the Record. For the reasons set forth herein, the motion is GRANTED IN PART AND DENIED IN PART (See Order). Signed by District Judge Kevin H. Sharp on 12/12/12. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DERRICK QUINTERO,
Petitioner,
v.
RICKY BELL, Warden,
Respondent.
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No. 3:09-cv-00106
Judge Sharp
DEATH PENALTY CASE
ORDER
The petitioner, a prisoner sentenced to death by the State of Tennessee, initiated this action by
filing a petition for the writ of habeas corpus under to 28 U.S.C. § 2254. Presently before the Court is the
petitioner’s Motion to Expand the Record (ECF No. 87) pursuant to Rule 7 of the Rules Governing §
2254 Cases. The respondent has filed a response in opposition to the motion (ECF No. 89). With the
Court’s permission, the petitioner filed a reply brief (ECF No. 92). For the reasons set forth herein, the
motion is GRANTED IN PART AND DENIED IN PART.
I.
Overview
In his motion, the petitioner seeks to expand the record to include 26 different documents, which
may be grouped as follows: (1) eight different affidavits by FBI Special Agent Mark Fedders, in each of
which Agent Fedders avers that the petitioner’s fingerprint was found at the Settlers’ residence, which
were disclosed to the petitioner on January 31, 2011 or April 18, 2012 in response to this Court’s
discovery orders (Attachments A–H to the petitioner’s motion); (2) notes from three different TBI witness
interviews conducted on July 29, 1988 and August 22, 2088 (Attachments I–K); (3) a TBI fingerprint
analyst’s handwritten notes related to fingerprints found on a firearm (disclosed to the petitioner on
January 14, 2011 pursuant to this Court’s discovery orders) (Attachment L); (4) the affidavit of trial
counsel regarding his attempts to procure Brady material from the prosecution prior to trial (Attachment
M); (5) the Curriculum Vitae and affidavit of Dr. John C. Brigham, an expert in the field of eye-witness
identification in courts (Attachments N, O); (6) lists of destroyed or missing trial exhibits, letters from court
clerks disavowing knowledge of the location of the missing evidence, and the affidavit of investigator
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Jessica Johnson regarding her attempts to find the missing evidence (Attachments P–S); and (7) various
mitigation evidence that was not presented at trial (Attachments T–Z).
The petitioner asserts that documents in Attachments A through M are relevant to Claim 3 in his
petition, that confidence in the outcome of the guilt phase of the trial is undermined by the State’s
concealment of exculpatory evidence and presentation of false evidence or argument.
The petitioner asserts that the documents in Attachments N and O are relevant to his claim that
the state court’s admission of unreliable eyewitness identification against the petitioner was a denial of
due process.
The petitioner asserts that the documents in Attachments P through S are relevant to his claim
that the prosecution willfully lost or destroyed numerous items of potentially exculpatory evidence, in
violation of Arizona v. Youngblood, 488 U.S. 51 (1988), and his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments.
The petitioner asserts that the documents in Attachments T through Z are relevant to his claim
that his death sentence is undermined by counsel’s ineffective assistance at the sentencing phase, in
violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
The petitioner’s motion is premised on Rule 7 of the Rules Governing § 2254 Cases, which
authorizes the Court to “direct that the record be expanded by the parties by the inclusion of additional
materials relevant to the determination of the merits of the petition.” (ECF No. 87, at 1 (quoting Rule 7,
Rules Gov’g § 2254 Cases).) The petitioner’s position presumes a very broad construction of the term
“relevant.”
The respondent objects to the motion, arguing that (1) to the extent the petitioner seeks to
expand the record to introduce new evidence pertaining to claims previously litigated in the state court,
such expansion is precluded by the Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388
(2011); and (2) to the extent the petitioner requests to expand the record as to claims not presented in the
state court, the request should be denied because the petitioner has not argued or shown cause and
prejudice to overcome the default.
In his reply brief, the petitioner argues that (1) Cullen concerns the propriety of conducting an
evidentiary hearing under AEDPA, not Rule 7, whose test is merely “relevance”; (2) expansion of the
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record under Rule 7 is generally used to assist the Court in determining whether an evidentiary hearing is
necessary or proper; and (3) the petitioner has alleged cause and prejudice to overcome the default with
respect to any claims that are procedurally defaulted, and the Court has not yet had the opportunity to
address the merits of his claims.
II.
Standard
Rule 7 of the Rules Governing Section 2254 Cases confers on the Court the authority to expand
the record with materials relating to the petition. The rule provides:
(a) In General. If the petition is not dismissed, the judge may direct the parties to expand
the record by submitting additional materials relating to the petition. The judge may
require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters predating the
filing of the petition, documents, exhibits, and answers under oath to written
interrogatories propounded by the judge. Affidavits may also be submitted and
considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against whom the
additional materials are offered an opportunity to admit or deny their correctness.
Rule 7, Rules Gov’g § 2254 Cases. According to the Advisory Committee Notes, the purpose of the rule
is not only to enable the district court to dispose of petitions not dismissed on the pleadings without the
time and expense of an evidentiary hearing, but also to assist the district court in determining whether an
evidentiary hearing is warranted.
Blackledge v. Allison, 431 U.S. 63, 81–82 (1977).
The decision
whether to order an expansion of the record under Rule 7 generally falls within the sound discretion of the
district judge. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988).
Rule 7 is thus analytically and procedurally distinct from 28 U.S.C. § 2254(e)(2), which addresses
whether, or under what circumstances, federal habeas corpus courts may hold evidentiary hearings.
Section 2254(e)(2) provides:
(2) 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 unavailable; or
(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
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convincing evidence that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). The Court concludes that the decision whether to grant an expansion of the
record under Rule 7 is informed but not necessarily controlled by § 2254(e)(2), and that the expansion of
the record for purposes of determining whether to hold an evidentiary hearing does not necessarily mean
that the evidence in the expanded record must or even may be considered by the Court when it ultimately
rules on the habeas petition.
With regard to consideration of new evidence, the habeas landscape has been dramatically
altered by the Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011). In that case, a
capital case, the district court held an evidentiary hearing on the petitioner’s ineffective-assistance-ofcounsel claim and granted relief, holding that the petitioner’s counsel had been constitutionally ineffective
at the sentencing phase of the trial.
The Ninth Circuit affirmed, taking into consideration the new
evidence presented in the district court, on the basis that the California Supreme Court’s conclusion that
counsel had not been ineffective was “contrary to, or involved an unreasonable application of, clearly
established Federal law,” under 28 U.S.C. § 2254(d)(1).
The Supreme Court reversed, holding
unequivocally that federal habeas courts’ review under 28 U.S.C. § 2254(d)(1) of claims that were
adjudicated on the merits in the state court is limited to the factual record that was before the state court.
Id. at 1398. The Court stated that its holding did not render § 2254(e)(2) altogether superfluous, because
§ 2254(e)(2) “continues to have force where § 2254(d)(1) does not bar federal habeas relief. . . . At a
minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new
evidence when deciding claims that were not adjudicated on the merits in state court.” Id. at 1401 (citing
Williams v. Taylor, 529 U.S. 420, 427–29 (2000). The Court concluded, in sum, that the Court of Appeals
had erred in considering the new evidence presented to the district court in its review under § 2254(d)(1).1
III.
Conclusions of Law
A.
Attachments A–M
The holding in Cullen expressly applies only to claims that were considered on the merits in the
state courts, and therefore does not pertain to the evidence the petitioner seeks to include in the record in
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The Court also held that the Ninth Circuit had erred in finding, alternatively, that the California
court had unreasonably applied clearly established federal law to his penalty-phase ineffective-assistance
claim on the state-court record.
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support of his claim of newly discovered evidence of Brady violations by the State. Although technically
defaulted, the petitioner argues that he has shown cause and prejudice for the default, claims the Court
has no need to resolve at this stage. The respondent’s objection to the petitioner’s motion as to the
records in the petitioner’s Attachments A through M is overruled, and the motion to expand the record to
include those documents is therefore GRANTED. The Court emphasizes that its holding is based on the
motion to expand the record under Rule 7, and the Court reserves the right to exclude evidence from
consideration in addressing the merits of the petitioner’s claims, should the circumstances warrant.
B.
Attachments N and O
The petitioner seeks to introduce Attachments N and O in connection with Claim 4 of his petition,
in which he asserts that the state court committed constitutional error in determining that the admission of
eye-witness identifications made under impermissibly suggestive circumstances violated the petitioner’s
right to due process, but that the error was harmless. See State v. Quintero, 976 S.W.2d 121, 157–58
(Tenn. 1998). In other words, this claim was fully litigated in the state courts, and the petitioner insists
that the state court’s adjudication of the claim is contrary to or an unreasonable application of clearly
established federal law, 28 U.S.C. § 2254(d)(1), and alternatively that it was based upon an unreasonable
determination of the facts in light of the evidence before the state court. 28 U.S.C. § 2254(d)(2).
Under Cullen, this Court may not consider new evidence in addressing issues raised under 28
U.S.C. § 2254(d)(1). Moreover, although Cullen did not concern claims under § 2254(d)(2), claims under
that provision, by their very nature, require a showing that the state court’s determination was
unreasonable based on the evidence before it at the time it made its decision. As a matter of logic, new
evidence is not relevant to consideration of a claim under § 2254(d)(2). That conclusion is bolstered by
Cullen’s presumption that new evidence would be admissible in habeas proceedings only if it pertained to
new claims and fell within the strictures of § 2254(e)(2).
The petitioner’s motion to expand the record to include Attachments N and O, which consist of
new evidence relating to Claim 4, is therefore DENIED.
C.
Attachments P–S
The petitioner seeks to expand the record to include new evidence of the disappearance or loss
of a substantial amount of “potentially exculpatory evidence” (ECF No. 87, at 10), allegedly in violation of
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the petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and in violation of
Arizona v. Youngblood, 488 U.S. 51 (1988). This evidence relates to Claim 14 in the habeas petition.
Cullen v. Pinholster does not control the question of whether the record may be expanded to
include this evidence, because the claim does not fall under § 2254(d)(1). However, the habeas petition
does not explain how the post-trial loss of “potentially exculpatory evidence” violates any of the
petitioner’s constitutional rights, nor does he explain the relevance of Arizona v. Youngblood to this claim.
In Youngblood, the police negligently failed to preserve potentially exculpatory DNA evidence such that it
was not available to the defendant at all. The Supreme Court held that, unless a criminal defendant can
show bad faith on the part of the police, the failure to preserve potentially useful evidence does not
constitute a denial of due process of law in violation of the Fourteenth Amendment. Id. at 57–58. The
Supreme Court expressly declined “to read the ‘fundamental fairness’ requirement of the Due Process
Clause as imposing on the police an undifferentiated and absolute duty to retain and to preserve all
material that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58.
In the present case, unlike in Youngblood, the lost or destroyed evidence was available prior to
and during trial; the petitioner could have but apparently failed to conduct any tests on it to determine
whether it might have been exculpatory. The petitioner does not indicate in what way any of the lost
items might have been favorable to him other than to state that “[f]orensic evaluation of [the lost] evidence
from the crime scene would likely exonerate [the petitioner] by conclusively establishing the identi[t]y of
the guilty parties.” (ECF No. 16, at 57.) That contention is pure speculation. Moreover, the petitioner
does not contend that the loss of the evidence resulted from the bad faith of any state actor. Because the
plaintiff cannot show prejudice and does not allege bad faith, the plaintiff cannot prevail on this claim even
if the Court presumes the petitioner’s allegations to be true. Court cannot conceive of any reason to
consider the proffered evidence or to conduct an evidentiary hearing on this question.
The motion to expand the record to include Attachments P through S in the record is therefore
DENIED.
D.
Attachments T–Z
Attachments T through Z are documents that relate to the petitioner’s claim that his trial counsel
had in his possession a wealth of mitigating evidence but failed to present it during the sentencing phase
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of his trial. This claim is procedurally defaulted, and the petitioner contends that he can show cause and
prejudice to excuse the procedural default. It is premature at this stage in the proceedings to resolve
these issues.
Expansion of the record to include Attachments T through Z is not barred by Cullen, and the
Court is unable to determine at this stage whether they are admissible under § 2254(e)(2). The motion to
expand the record to include Attachments T through Z is GRANTED, but the Court retains the prerogative
to decline to consider the evidence in ruling on the merits of the petition, if the petitioner fails to establish
a legitimate legal basis for the introduction of new evidence under § 2254(e)(2).
It is so ORDERED.
Kevin H. Sharp
United States District Judge
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