Summary
In Cook v. Anderson, 2011 U.S. Dist. LEXIS 148541 (S.D. Ohio 2011), Judge Watson permitted a pre-judgment stay "to exhaust claims relating to the new evidence."
Summary of this case from Carter v. MitchellOpinion
1:96-cv-424
12-22-2011
DERRICK COOK, Petitioner, v. CARL ANDERSON, Warden, Respondent.
JUDGE MICHAEL H. WATSON
Magistrate Judge Terence P. Kemp
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has filed a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court to consider the parties' briefs concerning the effect of Cullen v. Pinholster, 563 U.S. ____, 131 S.Ct. 1388 (2011), on the instant habeas corpus proceeding. (ECF Nos. 119 and 120.)
This case is ripe for a final decision on the merits of the following claims:
First Ground for Relief: Petitioner is actually innocent of the crime for which he was convicted and sentenced to death.
Second Ground for Relief: Petitioner's conviction and sentence are void because the State failed to disclose exculpatory evidence in its possession that was material to the issues of guilt and punishment.
Third Ground for Relief: Ineffective assistance of trial counsel when defense counsel abandoned their role as effective advocates (in failing to investigate the use of hypnosis to refresh the recollections of several witnesses, some of whom testified and others of whom did not).
Fourth Ground for Relief: The prosecution engaged in misconduct by misrepresenting that the State would not use hypnotically refreshed testimony, by failing to correct false and misleading testimony, and by capitalizing on false testimony and suppressed evidence in final argument.
Ninth Ground for Relief: The process of selecting venire persons to serve on grand juries and petit juries in Hamilton County is tainted due to consideration of
the factor of race in the drawing, selection, and impanelment of grand jurors.
Relevant to the instant matter is the fact that this Court has permitted considerable factual development in this case. On March 21, 2002, this Court issued an Opinion and Order granting Petitioner's motion to expand the record. (Doc. # 42.) On March 22, 2002, the Court issued an Opinion and Order granting Petitioner leave to conduct discovery on his second and third grounds for relief, alleging respectively that the prosecution suppressed favorable exculpatory and impeachment material and that Petitioner received ineffective assistance of counsel stemming from the failure of his trial attorneys to investigate the prosecution's use of hypnotically refreshed testimony. (Doc. # 43.) The deposition transcript for Dr. James Ward was filed on December 19, 2002. (Doc. # 52.) Transcripts of depositions of Petitioner's trial attorneys, Joseph Dixon and David Campbell, were filed on February 11, 2003. (Doc. # 56.) A supplemental appendix to the Return of Writ, consisting of five additional volumes, was filed on May 6,2004. (Doc. # 72.) Numerous deposition transcripts developed as a result of the discovery permitted by this Court were filed on March 31, 2008. (Doc. #'s 92-105.) On May 6, 2008, the Court conducted an evidentiary hearing on Petitioner's various claims relating to the admission of hypnotically refreshed testimony. In connection with the hearing, Petitioner submitted several boxes of police files.
While Petitioner's case was under advisement in chambers, the United States Supreme Court issued Cullen v. Pinholster. There, the Supreme Court granted certiorari to resolve two questions, the first of which was: "whether review under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court." 131 S.Ct. at 1398. The Supreme Court had before it a case in which first the district court and then the United States Court of Appeals for the Ninth Circuit, sitting en banc, had held on the basis of evidence developed during a federal evidentiary hearing that the California state courts' decision rejecting Pinholster's ineffective assistance claim was contrary to or involved an unreasonable application of clearly established federal law and warranted habeas corpus relief. The Supreme Court reversed, holding "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. Noting that "[o]ur cases emphasize that review under § 2254(d)(1) focuses on what a state court knew and did," the Supreme Court remarked that "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court." Id. at 1399. "[H]old[ing] that evidence introduced in federal court has no bearing on § 2254(d)(1) review," the Supreme Court made clear that, "[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." Id. at 1400.
In view of the new evidence that has been made a part of the record in this habeas corpus proceeding and the nexus between that evidence and several of Petitioner's claims, this Court directed the parties to submit briefs explaining what effect Pinholster might have on this Court's ability to consider evidence that the state courts did not have before them when those courts decided Petitioner's claims. Both Respondent and Petitioner timely filed their briefs on December 7, 2011 (ECF Nos. 119 and 120).
The parties agree as to which materials were presented to the state courts and which materials were not. Respondent submits that list as an attachment to her brief (ECF No. 119-1) and Petitioner incorporates the list within his brief (ECF No. 120, at 4-8).
Respondent's position is simple. Respondent asserts that to the extent that Petitioner's claims were adjudicated on the merits by the state courts, Pinholster limits this Court's consideration to the evidence actually presented to the state courts in support of Petitioner's claims. (ECF No. 119, at 5.) Thus, according to Respondent, "insofar as [Petitioner] presents new evidence in support of his claims, the Court should require [Petitioner] to present that evidence to the state courts." (Id. at 7.)
Petitioner's position is multifaceted. First, Petitioner readily concedes that he did not present to the state courts all of the evidence that is a part of the record before this Court and provides a comprehensive list of evidence that has never been presented to the state courts. (ECF No. 120, at 7-8.) To that point, Petitioner also agrees that, "[u]nder Pinholster, the evidence developed in federal habeas that was never presented to Ohio courts cannot be considered when a federal court is deciding whether a state court's denial of relief on the merits 'was contrary to, or involved an unreasonable application of, clearly established federal law' under § 2254(d)(1)." (Id. at 8.) Petitioner proceeds to argue that, to the extent he failed to exhaust all of the evidence supporting the ineffective assistance of counsel claim set forth in his third ground for relief, Pinholster does not preclude this Court from considering that evidence because the Ohio Supreme Court on direct appeal mischaracterized Petitioner's claim and accordingly failed to adjudicate the claim on the merits. (Id. at 10-14.) Regarding the remainder of the unexhausted evidence, Petitioner argues that he is entitled under Rhines v. Weber, 544 U.S. 269, 277 (2005), to an order staying this case and holding the proceedings in abeyance, pending Petitioner's return to the state courts to present his new evidence. (ECF No. 120, at 14-17.) Petitioner accordingly requests an order holding that the Ohio Supreme Court did not adjudicate on the merits Petitioner's claim of trial counsel ineffectiveness for the failure to investigate the use and effect of hypnosis on witnesses' memories; staying the case and holding it in abeyance pending exhaustion; requiring Petitioner to initiate proceedings in the state courts within forty-five (45) days after the date of the Court's order; requiring the parties to submit status reports every ninety (90) days; and requiring Petitioner to seek reinstatement of this case on the Court's active docket within thirty (30) days of fully exhausting his state court remedies. (Id. at 17-18.)
A state prisoner must exhaust available state court remedies before he can secure federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner satisfies the exhaustion requirement when he raises the claim in a manner that affords the state courts a fair opportunity to address the federal constitutional issue. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Picard v. Connor, 404 U.S. 270, 275-76 (1971). Petitioner must present the very claim to the state courts-setting forth essentially the same facts, evidence, and legal basis-that he seeks to present to the federal court. See Gray v. Netherland, 518 U.S. 152,162-63 (1996); Picard, 404 U.S. at 275-76; Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). If a petitioner fails to fairly present a claim and a state court remedy is still available for him or her to do so, then that claim is unexhausted and the petition would normally be subject to dismissal without prejudice for nonexhaustion. 28 U.S.C. § 2254(b), (c). When a district court is faced with a mixed petition containing both exhausted and unexhausted claims, the court has discretion to stay the petition and hold the proceedings in abeyance to allow the petitioner to present the unexhausted claims to the state courts. Rhines v. Weber, 544 U.S. 269, 275-76 (2005). In so holding, the Supreme Court emphasized that stay and abeyance should be utilized sparingly, explaining:
Because granting a stay effectively excuses a petitioner's failure to present his
claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.Id. at 277.
Petitioner requests, among other things, stay and abeyance to exhaust claims relating to the new evidence in the state courts. Respondent appears to be in agreement with that course of action. The question before this Court, accordingly, is twofold. First, the Court must determine whether there was good cause for Petitioner's failure to exhaust his claims relating to the new evidence first in state court. If the Court answers that inquiry in the positive, the Court must then determine whether Petitioner's claims based on the new evidence are plainly meritless. For the reasons that follow, the Court concludes that the answers to those questions are yes and no, respectively, and that Petitioner is entitled to the stay and abeyance that he seeks.
Petitioner's second, third, and fourth claims in particular are predicated upon numerous items of evidence that were not disclosed to Petitioner's defense counsel prior to trial. Some, although not all, of that suppressed evidence was never presented to the state courts by virtue of the fact that it was produced for the first time only through discovery in this habeas corpus proceeding. (ECF No. 119-1; 120, at 4-8.) Courts within the Sixth Circuit have concluded that this constitutes good cause for Petitioner's failure to exhaust his claims pertaining to the new evidence in the state courts sufficient to warrant stay and abeyance under Rhines. Bailey v. Lafler, No. 1:09-cv-460, 2010 WL 4286352, at *5 (W.D. Mich. Sep. 29, 2010); Mack v. Bradshaw, No. 1:09 CV 829, 2011 WL 5878395, at *31 (N.D. Ohio Nov. 23,2011). This Court agrees. Whether Petitioner's claims are recast as "new claims" by virtue of their reliance on evidence never presented to the state courts or whether they are regarded as existing claims supported by new evidence, Pinholster, 131 S.Ct. at 1401, n. 10, the fact remains that what this Court is presented with are unexhausted issues. It is also evident, as advanced by Petitioner, that remedies are available for Petitioner to present his unexhausted claims concerning the new evidence to the state courts. (ECF No. 120, at 14.)
Having determined that there was good cause for Petitioner's failure to exhaust his claims relating to the new evidence, the Court also concludes that the claims at issue—primarily Petitioner's second, third, and fourth grounds for relief—are not plainly meritless. Those three claims-and particularly the Brady violations Petitioner alleges in his second ground for relief—are predicated on a considerable amount of suppressed evidence that strikes at the very heart of the state's case against Petitioner: eyewitness testimony placing him at the scene of the victim's abduction and the scene where the victim's body was found. Petitioner has always maintained his innocence. Absolutely no physical or forensic evidence directly connected Petitioner to the aggravated robbery, abduction, or murder. The state presented no eyewitness testimony to those offenses. And Petitioner never made any sort of confession or inculpatory statements. The foregoing strongly supports the conclusion that Petitioner's claims are not plainly meritless.
The Court accordingly ORDERS that the instant petition be STAYED and the proceedings held in ABEYANCE, pending Petitioner's exhaustion of his claims based upon the new evidence in the state courts. The Court FURTHER ORDERS the following: Petitioner SHALL INITIATE proceedings in the state courts within forty-five (45) days of the date of this order; the parties SHALL FILE in this Court a joint status report every ninety (90) days; and Petitioner SHALL SEEK reinstatement of this case on the Court's active docket within thirty (30) days of fully exhausting his state court remedies.
The Court DENIES Petitioner's request to include in the instant order a holding that the Ohio Supreme Court did not adjudicate on the merits Petitioner's claim of trial counsel ineffectiveness for the failure to investigate the use and effect of hypnosis to refresh certain witnesses' recollections. Until such time as Petitioner completes state court proceedings in an effort to exhaust his claims based upon the new evidence, it would be premature for this Court to issue any such ruling.
IT IS SO ORDERED.
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MICHAEL H. WATSON
United States District Judge