Opinion
CASE NO. 2:11-CV-1146
05-06-2014
JAMES A. BRENSON, JR., Petitioner, v. WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On March 6, 2014, the Magistrate Judge issued an Opinion and Order denying Petitioner's Motion for Discovery (Doc. No. 39). Petitioner has filed an Objection to the Magistrate Judge's Opinion and Order. (Doc. No. 46). For the reasons that follow, Petitioner's Objection (Doc. No. 46) is OVERRULED. The Opinion and Order (Doc. No. 45) is ADOPTED and AFFIRMED. Petitioner's Motion for Discovery (Doc. No. 39) is DENIED.
Petitioner seeks discovery in regard to his claims that he was denied a fair trial due to pre-indictment delay; denied effective assistance of counsel; and abuse of the grand jury process. He seeks depositions of the Delaware County and Assistant prosecutors, the former sergeant of the City of Delaware police department, and petitioner's former defense attorneys. He additionally requests the Delaware County Prosecutor's Office and City of Delaware Police Department provide all records regarding this case. See Objection, PageID# 4000.
Pre-Indictment Delay
Petitioner contends that the discovery he seeks in regard to his claim of unconstitutional pre-indictment delay will reveal the reasons for the delay and fill in the gaps in police files regarding the nature of investigations conducted. PageID# 4002. He complains that the record fails to reflect he had an opportunity to develop the factual basis for this claim, and contends that his requested discovery relates to his ability to establish prejudice from the delay. Specifically, Petitioner refers to the unavailability of David and Darla Herron at the time of trial; faded memories of witnesses; loss of fireworks taken from the victim's basement; contamination or loss of material for DNA testing; loss of rental and credit card records which would have verified whether Petitioner had driven a rental car on the night in question; and the failure of police to examine Petitioner's safe for one 1 ½ years after the victim's murder. Petitioner argues that discovery will shed light on whether additional evidence corroborates the Herrons' statements to police thereby indicating that another person may be responsible for the crime with which he is charged. Petitioner argues that discovery additionally will show whether the State intentionally ignored evidence to obtain a tactical advantage by establishing how often prosecutors worked on the case or requested police to move on with the investigation. PageID# 4004. Petitioner complains that police took six months after learning that David Herron was a potential witness in the case to interview him, by which time he had difficulty remembering details of the events at issue, and argues that discovery will show whether police intentionally delayed Herron's interview. Id. n. 1. Finally, referring to Wellons v. Hall, 558 U.S. 220 (2010), Petitioner argues that Cullin v. Pinholster, -- U.S. --. 131 S.Ct. 1388 (2011), does not preclude his requests for discovery in this case. PageID# 4005.
Petitioner states that he had no opportunity to conduct discovery on appeal, and while he did not pursue post conviction relief, discovery in those proceedings would have been unlikely and his claims barred under Ohio's doctrine of res judicata. PageID# 4006. Petitioner argues that, in the event that he obtains material supporting his claim, he may return to the state courts to exhaust his claim. Id.
As noted by the Magistrate Judge, claims of pre-indictment delay fail unless the petitioner can show that the government had no valid reason for the delay or sought a tactical advantage from the delay. Opinion and Order, PageID# 3984. Contrary to Petitioner's allegation here, this Court concludes that the record reflects that Petitioner had adequate opportunity to develop the factual basis for this claim in state trial court proceedings and through the discovery process. The loss of evidence and other factors Petitioner refers to already are a part of the record, as are the records relating to police investigation and interviews with Darla and Darron Herron. Police did not learn that Darron Herron may be a potential witness until April of 2002, approximately two years after the events at issue here. Police records indicate that, at that time, Darron Herron's memory had faded due to the elapse of time. The record is without support for Petitioner's allegation that discovery may reflect that any further delay could have been detrimental to the defense or was the result of intentional police conduct devised to obtain a tactical advantage over him. As discussed by the Magistrate Judge, whether police failed to exercise diligence in pursuing charges will not assist Petitioner with this claim, as the delay must have been an intentional device to obtain a tactical advantage against Petitioner. As further noted by the Magistrate Judge, Petitioner fails to indicate the specific nature of his anticipated discovery beyond that which is already in the record.
Additionally, Wellons v. Hall, 550 U.S. 220 (2010), referred to by Petitioner, is inapposite here. In Wellons, the state courts reached a decision without any evidentiary record. Id. at 223 n.3, 224 (Wellon's claims rested on "speculation" and "surmise" . . . due to the absence of a record). Id. at 224. Such are not the circumstances here. See Bowling v. Haeberlin, No. 03-28-ART, 2012 WL 4498647, at *88 (E.D. Ky. Sept. 28, 2012)(rejecting argument that Wellons v. Hall supports a request for discovery):
In Pinholster, the Supreme Court held that § 2254(d)(1) review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id at 1398. Why? Because § 2254(d)(1) is "backward-looking." Id. The object of federal habeas review under § 2254(d)(1) is to review the "state-court decision at the time it
was made" using "the record in existence at that same time i.e., the record before the state court. " Id.
Bowling argues that Pinholster is inapplicable because Pinholster, as Bowling reads it, was a "narrow decision" that "does not apply to discovery," . . . The Sixth Circuit, however, has held otherwise. Federal courts must rely "on only the record that was before the state court in overcoming AEDPA's deference requirements." Fears v. Bagley, 462 F. App'x 565, 568 (6th Cir.2012) (citing Pinholster, 131 S.Ct. at 1400). So petitioners have not been allowed to expand the record to include evidence of mental illness when the state court denied funding for expert testimony during post-conviction proceedings, Strouth, 680 F.3d at 603, or when the state court did not allow the petitioner to include evidence during the state collateral proceedings, Fears, 462 F. App'x at 574. In short, absent a showing that . . . review was defective under "clearly established federal law," a federal court "may not consider any [ ] evidence" that was not before the state court. Id.
Id.
In any event, the record fails to reflect, regardless of the potential impact of Pinholster, that Petitioner has established, under Rule 6 of the Rules Governing Section 2254 Proceedings, good cause for his discovery request.
Abuse of the grand jury process
Petitioner contends that he requires discovery in order to establish that the State knowingly exploited the grand jury process. He avers that depositions of prosecutors and police will confirm whether there was a coordinated effort to abuse the grand jury process, why police failed to inform Petitioner of the pending charge against him, and other details behind the decision to call Petitioner to testify before the grand jury after issuance of the Indictment against him. Objection, PageID# 4009.
The state appellate court, however, primarily rejected Petitioner's claim regarding abuse of the grand jury process by concluding that Petitioner voluntarily testified before the grand jury and knowingly and intelligently elected to waive his right to representation of counsel. See State v. Brenson, 09-CA-18, 2010 WL 3784890, at *23-24 (Ohio App. 5th Dist. Sept, 28, 2010). Thus, the purpose for which Petitioner proposes he requires discovery will not assist him in establishing his claim.
To the extent that Petitioner now asserts that he could not waive his rights due to his use of medication, for the reasons addressed by the Magistrate Judge, that claim is waived and therefore does not assist him in obtaining the discovery he seeks.
Ineffective Assistance of Counsel
Petitioner seeks depositions of Petitioner's defense counsel in order to obtain counsels' strategic reasons for failing to object or investigate testimony of Tom Beal, Petitioner's former defense counsel; failure to request a jury instruction regarding Brenson's Grand Jury testimony; and failure to object to bad acts evidence, in order to establish the denial of the effective assistance of counsel under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). Petitioner contends that, because he raised the claim on direct appeal, he had no avenue by which to develop the facts for this claim - i.e., whether defense counsel acted reasonably in making the strategic decisions at issue.
As noted by the Magistrate Judge, however, the state appellate court rejected Petitioner's claims of ineffective assistance of counsel by concluding that he failed to establish prejudice. Thus, further discovery of the nature he requests will not assist him in establish his claim for relief. Further, Petitioner did not raise in the Ohio courts any claim regarding counsel's actions in regard to Floyd Bell. Petitioner therefore has waived this claim, and it cannot serve as a basis for his discovery request.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons discussed and for the reasons set forth in the Magistrate Judge's Opinion and Order, Petitioner's Objection, Doc. No. 46, is OVERRULED.
The Opinion and Order (Doc. No. 45) is ADOPTED and AFFIRMED. Petitioner's request for discovery (Doc. No. 39) is DENIED.
IT IS SO ORDERED.
______________________
EDMUND A. SARGUS, JR.
United States District Judge