Opinion
Case No. 2:07-cv-258
10-06-2014
JONATHON D. MONROE, Petitioner, v. WARDEN, Ohio State Penitentiary, Respondent.
District Judge Edmund A. Sargus, Jr.
SUPPLEMENTAL OPINION ON MOTIONS FOR EVIDENTIARY HEARING AND TO EXPAND THE RECORD
This capital habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 123) to the Magistrate Judge's Decision and Order Denying Petitioner's Motions to Expand the Record and for Evidentiary Hearing (the "New Evidence Decision," Doc. No. 120). Respondent has filed a Response to the Objections under Fed. R. Civ. P. 72 (Doc. No. 126) and Judge Sargus has recommitted the matter for supplemental analysis (Doc. No. 124).
Monroe asserts the New Evidence Decision is clearly erroneous and/or contrary to law (Doc. No. 123 at PageID 7396, citing United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001)). Curtis involved a magistrate judge's conducting a preliminary supervised release revocation proceeding under Fed. R. Crim. P. 32.1, but the Sixth Circuit confirmed generally that the standard for review of magistrate judge decisions on nondispositive motions is "clearly erroneous or contrary to law." Id.
Monroe's argument that the New Evidence Decision is contrary to law focuses heavily on the decision's citation of Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013), in which the court intimated, without deciding, that the Supreme Court's decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), used jurisdictional language to describe the bar of hearing new evidence in federal habeas on claims decided on the merits in state court. Monroe emphasizes that Moore did not decide the bar was jurisdictional and its language about jurisdiction was dictum (Objections, Doc. No. 123, PageID 7396). Monroe relies heavily on Allen v. Parker, 542 Fed. Appx. 435 (6th Cir. 2013), for the proposition that the bar is not jurisdictional.
The Magistrate Judge agrees that the jurisdictional language in Moore is indeed dictum, as Judge Boggs made clear in Allen. The Allen court went on to decide that § 2254(d)(1) is not jurisdictional. But the Allen court went on to hold § 2254(d)(1) is mandatory, even though non-jurisdictional. The court explained:
Section § 2254(d)(1) is therefore nonjurisdictional.542 Fed. Appx. at 440-41. Allen supports rather than undercuts the Magistrate Judge's denial of an evidentiary hearing.
It is important to note that this does not mean that either § 2253(c)(2) or § 2254(d)(1) are not mandatory. Indeed, one of the crucial inferences taken from Gonzalez is that there is a distinction between a "mandatory" provision and a "jurisdictional" provision. While all jurisdictional provisions are mandatory, not all mandatory provisions are jurisdictional. See 132 S. Ct. at 651 ("This Court, moreover, has long rejected the notion that all mandatory prescriptions, however emphatic, are . . . properly typed jurisdictional." (internal quotation marks omitted)). Though not jurisdictional, mandatory provisions must still be followed. See ibid. ("If a party timely raises the COA's failure to indicate a constitutional issue, the court of appeals panel must address the defect . . . ." (emphasis added)). However, mandatory nonjurisdictional provisions do not strip courts of their ability consider an issue in the same way that mandatary jurisdictional provisions do.
B
While mandatory nonjurisdictional provisions are not categorically unwaivable, this does not mean that they are categorically waivable. Some mandatory provisions, such as AEDPA's one-year
statute of limitation, are subject to deliberate abandonment by the state. Wood, 132 S. Ct. at 1834-35. Others, such as the deferential standard of review under § 2254(d)(1), may not be forfeited or waived. Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); see also K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996) (holding that the standard of review is a determination that the court makes for itself). We recently held the evidentiary restricts of Pinholster are similarly unwaivable. Moore, 708 F.3d at 784.
Monroe also relies on this Court's post-Pinholster grant of an expansion of the record in Hill v. Mitchell, 2013 U.S. Dist. LEXIS 45919 (S.D. Ohio 2013). However, this Court is bound by Moore, supra, as reinforced by Allen, supra.
The Hill decision does not advert to Moore.
Monroe argues at length that he was diligent in attempting to develop the record in the state courts and was denied any discovery there. He goes so far as to argue that denying him expansion of the record amounts to a suspension of the writ (Objections, Doc. No. 123, PageID 7401). The place for that argument is in the Supreme Court, which has not recognized a state-court-diligence exception to Pinholster.
Monroe also relies on Moore v. Secretary Penn. Dept. of Corrections, 457 Fed. Appx. 170 (3rd Cir. 2012). That opinion is not binding precedent even in the Third Circuit. See Third Circuit Internal Operating Procedure Rule 5.7. It cannot be relied on by this Court to recognize an exception to Pinholster which the Sixth Circuit has not recognized.
The Magistrate Judge remains persuaded that Monroe's motions for evidentiary hearing and to expand the record were properly denied under Pinholster. October 6, 2014.
s/ Michael R. Merz
United States Magistrate Judge