Carter v. Crowther
Filing
412
MEMORANDUM DECISION denying as moot 351 Motion for Discovery ; denying as moot 369 Motion for Discovery ; denying as moot 376 Motion for Modification of Factual Development Schedule ; granting 378 Motion to Reconsider re 347 Order ; vacatin g 347 The Courts prior order allowing further factual development ; granting 390 Motion to Quash ; denying as moot 394 Motion to Strike. The remaining claims in the Second Amended Petition are now ripe for decision. Petitioner shall file his brief on the merits of his claims by August 29, 2011. Respondents brief is due by October 31, 2011. Petitioner may file a reply brief by November 30, 2011. Signed by Judge Ted Stewart on 06/24/2011. (asp)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DOUGLAS STEWART CARTER,
Petitioner,
MEMORANDUM DECISION AND
ORDER GRANTING
RESPONDENT’S MOTION TO
RECONSIDER AND SCHEDULING
ORDER
vs.
ALFRED C. BIGELOW, Warden,
Case No. 2:02-CV-326 TS
Respondent.
This matter is before the Court on Respondent’s Motion to Reconsider Decision on
Further Factual Development and Dismissing Claims, as well as a number of related Motions. In
his Motion, Respondent asks the Court to reconsider two prior decisions in light of the Supreme
Court’s recent decision in Cullen v. Pinholster.1 The Court agrees that reconsideration is
appropriate and finds that, under Pinholster, further factual development is futile.
1
131 S.Ct. 1388 (2011).
1
I. BACKGROUND
Petitioner filed his Original Petition for Habeas Corpus Relief in this Court on March 25,
2004.2 Respondent moved to dismiss the Original Petition on August 31, 2004.3
The Court denied Respondent’s Motion on the issue of time bar on July 18, 2005.4 The
Court further agreed that a number of Petitioner’s claims were unexhausted.5 The Court denied
Petitioner’s request for a stay under Rhines v. Weber,6 on January 26, 2006.7 The Court granted
Petitioner the option of either: (1) refiling his petition without the unexhausted claims; or (2)
dismissing the entire Petition without prejudice.8 Petitioner elected to file a Second Amended
Petition, withdrawing his unexhausted claims.9
2
Docket No. 98.
3
Docket No. 110.
4
Docket No. 136.
5
Id.
6
554 U.S. 269 (2005).
7
Docket No. 152.
8
Id.
9
Docket No. 154. Petitioner has since been pursuing those claims in state court. See
Docket No. 288.
2
On July 20, 2010, the Court found that a number of Petitioner’s claims were procedurally
defaulted and, therefore, dismissed those claims.10 The Court later granted Petitioner’s Request
for Further Factual Development.11
Respondent now seeks reconsideration of the Court’s Orders allowing further factual
development and dismissing some of Petitioner’s claims as procedurally defaulted. Respondent
argues that the Court should rescind its order allowing Petitioner to develop additional factual
support for his claims because such factual development would be futile under the recent
Supreme Court decision of Cullen v. Pinholster. Respondent further argues that the Court should
amend its order dismissing certain of Petitioner’s claims to include claims XXVIII(a)(4) through
(6), as those claims too are procedurally defaulted.
Petitioner opposes Respondent’s Motion arguing that Pinholster does not categorically
bar either factual development or an evidentiary hearing. Petitioner further argues that it is
inappropriate for this Court to revisit its decision to allow factual development while the Utah
state courts are still considering Petitioner’s pending post-conviction petition. Petitioner argues
that the Court should wait to determine the scope of its review under § 2254(d) until it
determines whether to hold an evidentiary hearing. Petitioner also asserts that he should be
allowed to continue with factual development before this Court for possible preparation of
another state petition for post-conviction relief. Petitioner’s final argument is that the Court
10
Docket No. 323.
11
Docket No. 347.
3
should not dismiss claims XXVIII(a)(4) through (6) because Petitioner may be able to show
cause and prejudice to excuse any procedural default as to those claims.
II. DISCUSSION
Though “the Federal Rules of Civil Procedure do not recognize that creature known all
too well as the ‘motion to reconsider’ or ‘motion for consideration,’” the Court “has the inherent
power to reconsider its interlocutory rulings.”12 “Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.”13 Grounds one
and three are at issue here.
A.
FURTHER FACTUAL DEVELOPMENT
Respondent seeks reconsideration in light of the recent Supreme Court decision Cullen v.
Pinholster. The Court in Pinholster held “that review under [28 U.S.C.] § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the merits.”14 That is,
“[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record that was before that state court.”15 The
Court reasoned that the “backward-looking language” of § 2254(d)(1) “requires an examination
of the state-court decision at the time it was made. It follows that the record under review is
12
Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1243 (10th Cir. 2007).
13
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
14
Pinholster, 131 S.Ct. at 1398.
15
Id. at 1400.
4
limited to the record in existence at that same time i.e., the record before the state court.”16
Consequently, “evidence introduced in federal court has no bearing on § 2254(d)(1) review.”17
Petitioner does not dispute that all but one of his claims were adjudicated by the state
court on the merits. The only claim not adjudicated on the merits—claim XXVIII(a)(4) through
(6)—is subject to dismissal for the reasons discussed below. Under the clear language of
Pinholster, the Court’s determination of these claims is limited to the record before the state
court and other evidence “has no bearing” on this Court’s review. Because this Court’s review is
limited, allowing further factual development would be futile.
Petitioner argues that Pinholster does not categorically bar either factual development or
an evidentiary hearing. While this is true, Pinholster makes clear that this Court cannot consider
evidence outside of the state court record when determining claims that have been adjudicated by
the state court on the merits. As stated, all of Petitioner’s remaining claims have been
adjudicated by the state court on the merits. Therefore, while Pinholster does not create a
categorical bar, further factual development in this case would be futile since the results of such
factual development could not be considered by this Court in resolving Petitioner’s claims.
Petitioner further argues that it is inappropriate for this Court to revisit its decision to
allow factual development while the Utah state courts are still considering Petitioner’s pending
post-conviction petition. Petitioner, however, fails to explain why. It appears that Petitioner is
again requesting the Court stay this action until the state court proceedings conclude. The Court
16
Id. at 1398.
17
Id. at 1400.
5
has rejected that request before and Petitioner has provided no basis for the Court to reconsider
its decision.
Petitioner also argues that the Court should wait to determine the scope of its review
under § 2254(d) until the time that it determines whether to hold an evidentiary hearing.
Petitioner appears to argue that Pinholster does not apply where the petitioner, through no fault
of his own, was prevented from presenting the facts on which his claims rest to the Utah courts.18
Petitioner argues that he was prevented from developing factual support in state court because of
a lack of funding.19 It is unclear what impact Pinholster has on the “no fault of the petitioner”
exception and the Court need not decide the issue. The Tenth Circuit has made clear that a lack
of funding to develop the factual record does not meet the “no fault of the petitioner” exception.20
Therefore, Petitioner’s argument on this point is irrelevant.
Petitioner also asserts that he should be allowed to continue with factual development for
possible preparation of a motion to reconsider this Court’s procedural default ruling or another
state petition for post-conviction relief. Petitioner, however, cites no authority for the
proposition that he can use his federal habeas proceeding as a staging ground for a new state
petition. Further, there is no pending motion for reconsideration on the procedural default ruling.
Therefore, this argument does not justify denial of Respondent’s Motion.
18
Docket No. 396, at 7.
19
Id. at 8.
20
Gardner v. Galetka, 568 F.3d 862, 878 (10th Cir. 2009).
6
For all of the reasons stated above, the Court finds that further factual development in this
case would be futile. Each of Petitioner’s remaining claims, save one to be discussed below,
were adjudicated by the state courts on the merits. The Supreme Court in Pinholster made clear
that this Court’s review of such claims is limited to the record that was before the state court. As
a result, there is no need for further factual development in this case and the Court will not
permit continued discovery.
B.
CLAIM XXVIII(a)(4)-(6)
By a previous Order, the Court dismissed a number of Petitioner’s claims as procedurally
defaulted because the state court concluded they were procedurally barred.21 The Court,
however, did not list claim XXVIII(a)(4) through (6) as claims that were procedurally defaulted,
despite the fact that those claims were identified by the Utah Supreme Court as being
procedurally barred.22 For the same reasons set forth in the Court’s previous Order, the Court
finds that claim XXVIII(a)(4) through (6) are procedurally defaulted. Therefore those claims
should have been included in the previous Order as being dismissed.
Petitioner argues that the Court should not dismiss claim XXVIII(a)(4) through (6)
because he may ask this Court to reconsider its procedural default ruling by arguing that there is
cause and prejudice to relieve him of the procedural default rule. There is no pending motion to
reconsider on this ground and the fact that Petitioner may seek reconsideration in the future does
21
Docket No. 323.
22
Carter v. Galetka, 44 P.3d 626, 632 (Utah 2001).
7
not present a valid reason to avoid dismissal. Therefore, the Court finds claim XXVIII(a)(4)
through (6) to be procedurally defaulted and they will be dismissed.
C.
REMAINING ISSUES AND FURTHER PROCEEDINGS
There are several pending Motions that are all dependent on this Court’s prior Order
allowing further factual development. As the Court is now rescinding that Order, those Motions
can be addressed summarily.
The Court has before it Petitioner’s Motion for Discovery and Respondent’s Renewed
Motion for Discovery. As stated, further discovery in this matter is futile under Pinholster.
Therefore, the parties’ respective Motions for Discovery will be denied.
Petitioner has also filed a Motion seeking to modify the factual development schedule put
in place by the Court. As the Court will not permit further factual development, there is no need
to modify the factual development schedule and the Motion will be denied as moot.
Respondent has filed a Motion seeking to quash a subpoena Petitioner issued and served
on the Clerk of the Fourth District Court. Petitioner seeks to strike Respondent’s Motion to
Quash. For substantially the same reasons set forth above, this Order resolves these Motions.
Therefore, Respondent’s Motion to Quash will be granted and Petitioner’s Motion to Strike will
be denied as moot.
Based on the above, the Court finds that it is now appropriate to consider the merits of
Petitioner’s remaining claims. The Court will permit briefing on the merits of these claims.
Petitioner shall file his brief by August 29, 2011. Respondent’s brief is due by October 31, 2011.
Petitioner may file a reply brief by November 30, 2011.
8
III. CONCLUSION
It is therefore
ORDERED that Respondent’s Motion to Reconsider Decision on Further Factual
Development and Dismissing Claims (Docket No. 378) is GRANTED. The Court’s prior order
allowing further factual development (Docket No. 347) is VACATED. It is further
ORDERED that Respondent’s Renewed Motion for Discovery (Docket No. 351) is
DENIED AS MOOT.
ORDERED that Petitioner’s Motion for Discovery (Docket No. 369) is DENIED AS
MOOT. It is further
ORDERED that Petitioner’s Motion for Modification of Factual Development Schedule
(Docket No. 376) is DENIED AS MOOT. It is further
ORDERED that Respondent’s Motion to Quash (Docket No. 390) is GRANTED. It is
further
ORDERED that Petitioner’s Motion to Strike (Docket No. 394) is DENIED AS MOOT.
The remaining claims in the Second Amended Petition are now ripe for decision.
Petitioner shall file his brief on the merits of his claims by August 29, 2011. Respondent’s brief
is due by October 31, 2011. Petitioner may file a reply brief by November 30, 2011.
DATED June 24, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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