Opinion
Case No. C-1-00-493
February 16, 2002
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTIONS FOR AN EVIDENTIARY HEARING AND TO EXPAND THE RECORD
This case is before the Court on Petitioner's Motion for an Evidentiary Hearing (Doc. No. 30) and to Expand the Record (Doc. No. 31), on Respondent's Memoranda in Opposition (Doc. Nos. 32, 33), and on Petitioner's Reply Memoranda (Doc. Nos. 34, 35).
Motion for an Evidentiary Hearing
The Petition herein was filed June 20, 2000. This case is thus subject to the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"). The Court's authority to conduct an evidentiary hearing is thus governed by 28 U.S.C. § 2254(e), as adopted by the AEDPA, which provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(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 convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under § 2254(e)(1), a state court's findings of fact are presumed correct and may be rebutted by the petitioner only by clear and convincing evidence to the contrary. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 119 S.Ct. 2403 (1999).
"Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Congress intended to preserve at least one aspect of Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992): "prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing." 120 S.Ct. at 1490.
Petitioner's Motion for Evidentiary Hearing is examined in light of the foregoing standards.
Petitioner's citation of this Court's grant of an evidentiary hearing in Zuern v. Tate, C-3-92-771, is at least partly inapposite; Zuern was a pre-AEDPA case and AEDPA changes the standard for granting evidentiary hearings.
In support of his Seventh Ground for Relief — juror misconduct — Petitioner seeks to introduce testimony by Juror Fox, Helen Jones (the person Fox called for a definition of paranoid schizophrenia), Anne Flanagan (the prosecutor to whom Fox admitted making the call), and Jeffrey Smalldon (the psychologist who testified in mitigation at the trial). The Court is not prepared to rule at this point whether the failure to present some or all of this information in the state court process is attributable to Petitioner, which would make the information inadmissible under Keeney, supra. A determination of what more, if anything, could have been done to obtain and admit this information can best be made in the context of an evidentiary hearing which explores that question.
At least in some habeas corpus cases, the question of what efforts were or could have been made to introduce evidence in the state court process is likely to require the district court to consider evidence which was not itself presented to the state courts, i.e., evidence to satisfy the Keeney threshold. Such evidence is most appropriately considered at an "evidentiary hearing," i.e., a hearing where the district court takes evidence from witnesses subject to cross-examination, etc. It seems unlikely that Congress intended to preclude this sort of hearing on evidence when it enacted § 2254(e)(2). That statute seems instead directed at preventing or curbing trails de novo of factual issues tried or which could have been tried in the state courts.
Accordingly, the Motion for Evidentiary Hearing on the Seventh Ground for Relief is GRANTED insofar as it seeks to admit testimony from Fox, Jones, and Flanagan, all of whom are fact witnesses on the juror misconduct claim.
Jeffrey Smalldon, however, does not appear to be a fact witness on this claim, and Petitioner has not stated what it is that Mr. Smalldon will testify to. This Court has regularly required that habeas petitioners set forth the testimony expected to be given by witnesses and the reasons why that testimony was not presented in the state courts. (See, e.g., decisions on motions for evidentiary hearings in Hawkins v. Coyle, C-1-97-296, and Gumm v. Mitchell, C-1-98-838).
Petitioner's sole statement is "If the Court grants Mr. Sheppard's motion for an evidentiary hearing on the juror misconduct claim, Sheppard will call Juror Stephen Fox, Helen Jones, Anne S. Flanagan, and Jeffrey Smalldon, Ph.D." Motion for Evidentiary Hearing, Doc. No. 30, at 16.
If Petitioner proposes to present expert testimony from Dr. Smalldon, he must also make at least a prima facie showing that he can satisfy the standards for admission of such testimony adopted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see also United States v. Thomas, 74 F.3d 676, 681 (6th Cir. 1996), and Berry v. Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994). This Court has regularly required such a proffer prior to allowing expert witness testimony in a habeas corpus case (see Waddy v. Coyle, C-3-98-084). The Motion for Evidentiary Hearing, insofar as it seeks to present testimony of Jeffrey Smalldon, is DENIED without prejudice to its timely renewal upon compliance with the foregoing requirements.
In support of his Tenth Ground for Relief — ineffective assistance of appellate counsel — Petitioner seeks to present testimony from his appellate counsel, Messrs. Stidham and Hoefle, and "a qualified expert witness to be named, who will render opinions on whether the omissions of Mr. Sheppard's appellate counsel were reasonable or unreasonable, in accordance with Mapes factor #11." (Motion for Evidentiary Hearing, Doc. No. 30, at 31.)
Respondent opposes an evidentiary hearing on this Ground for Relief because she alleges the Court can decide from the record whether the issues not raised are stronger than the issues which were raised. While that appears to be true, there are other factors listed by the Sixth Circuit in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), on which the testimony of Messrs. Stidham and Hoefle may be material.
Respondent also objects that Petitioner appears to intend to introduce evidence of Mr. Stidham's mishandling of other cases in support of his claim. The Court tentatively agrees with Respondent that such evidence would not be material. However, it is inappropriate to make a blanket ruling to that effect at this stage. Such objections are more appropriately handled when they are offered in context during an evidentiary hearing.
Petitioner's Motion for an Evidentiary Hearing on his Tenth Ground for Relief is GRANTED to the extent he seeks to call attorneys Stidham and Hoefle.
However, Petitioner's Motion is DENIED with respect to his intention of calling an unnamed expert to offer unspecified opinions on Mapes factor No. 11. The premise for calling any expert witness is that the witness' testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Petitioner has not offered any demonstration that the expert, as yet unnamed, would have testimony to offer which the Court would find of assistance in deciding the Tenth Ground for Relief.
Motion to Expand the Record
Petitioner seeks to expand the record under Habeas Rule 7 by adding a Declaration of Jeffrey Smalldon, Ph.D. (Ex. A to Doc. No. 31), the Affidavit of Janis Ort, Psy.D. (Ex. B), two "service tickets" related to Dr. Chiappone (Exs. C D), documents from the Ohio Supreme Court disciplinary case against Mr. Stidham (Exs. E, F. and G), the Delores Sheppard deposition transcript (Ex. H), and the psychiatric hospitalization records of Sara Smith and James Burton (Exs. I and J).
Respondent has no objections to Exhibits C, D, H, I, and J; they will be added to the record.
Respondent objects that Dr. Smalldon's declaration is irrelevant. The Court excludes the Declaration on other grounds: it constitutes uncross-examined hearsay and Dr. Smalldon will be present to testify live at the evidentiary hearing. To the extent information in the Declaration is material to the Seventh Ground for Relief, he may be examined on it at that time.
Respondent objects to admission of the materials from the Stidham disciplinary proceedings on the grounds that what is relevant are the ultimate conclusions in that proceeding by the Ohio Supreme Court. That objection is overruled. Exhibits E, F, and G may be added to the record for whatever background light they shed on the Ohio Supreme Court's decision. To the extent Petitioner intends to rely on the letter of Terri Smith to prove matters directly at issue in this case as to the Tenth Ground for Relief, however, the Court notes that the letter constitutes unsworn hearsay and is subject to discounting on that basis. If Ms. Smith's observations of Mr. Stidham are intended to be relied upon for matters directly at issue on the Tenth Ground (rather than as mere background to the Ohio Supreme Court's decision), Petitioner should consider presenting Ms. Smith live at the evidentiary hearing.
This caution should not be taken as permission for so presenting Ms. Smith. If Petitioner desires to present her at the hearing, he must submit a motion setting forth what her testimony would be, why it is material, and why it was not presented to the state courts in the course of litigating this case, as opposed to the disciplinary case.
Petitioner seeks to add the Affidavit of Janis Ort, Psy.D., to the record in support of his Fifth Ground for Relief, prosecutorial misconduct. Dr. Ort's Affidavit is uncross-examined hearsay essentially opining on the fairness of an argument by the prosecutor. The Affidavit does not on its face demonstrate compliance with Daubert and Kumho Tire, supra. There is no attempted demonstration of compliance with Keeney, supra. Petitioner has not offered any good reason why Dr. Ort should not testify live, subject to cross-examination and the Court's determination of credibility. Her Affidavit is excluded without prejudice to Petitioner's moving to have her testify live at the evidentiary hearing, subject to the same conditions set forth above as to Dr. Smalldon.