The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on Respondent's Motion for Relief from the Court's Order of October 11, 2005 (doc. 23), Petitioner's Response (doc. 24), and Respondent's Reply (doc. 25). For the reasons indicated herein, the Court DENIES Respondent's Motion.
The facts of this case have been stated in previous orders and filings in this case. For easy reference, the Court recounts the essential facts here:
On October 17, 1999, an assailant in a car shot Johann Hart and Kevin Davis on the corner of Fourteenth and Republic Streets in Cincinnati, Ohio (doc. 19). Police responded to the scene, obtained a license number from witnesses, and tracked down Petitioner (Id.). Petitioner Frederick Hall ("Hall") claimed that a passenger in his car shot Hart and Davis, though at trial the two victims identified Petitioner as the shooter, and stated he was alone in the vehicle, which was stationary (Id.). Two other witnesses provided statements to the police as well, Lolita Moore, and Jimmie Martin, but their statements were not provided to the defense (Id.). Moore's statement, as averred in a subsequent affidavit, indicated she saw three young men, none of whom resembled Petitioner, in the perpetrator's car, which was moving (Id.). Martin's statement was ultimately lost or destroyed (doc. 20). During the trial, the defense introduced through a police officer documentation of phone calls to the police, which included reports that three persons were in the perpetrator's car, and the suspect was a young man, who did not resemble Petitioner (doc. 23).
Petitioner's first trial ended in a mistrial, but in a second trial, in August 1999, a jury found Petitioner guilty on two counts of felonious assault as defined in Ohio Rev. Code § 2903.11(A)(1), two counts of felonious assault as defined in Ohio Rev. Code § 2903.11(A)(2), two counts of attempted murder as defined in Ohio Rev. Code § 2923.02(A) and one count of failure to comply as defined in Ohio Rev. Code § 2921.33 (doc. 19). On January 16, 2002, Petitioner Hall filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1). Petitioner contends he was deprived of due process of the law when the state did not provide exculpatory statements from eyewitnesses who did not testify at trial (Id.).
During the pendency of this habeas action, Petitioner discovered that the statements of Ms. Moore and Mr. Martin were destroyed by the police or the prosecutor (doc. 24). As such statements are potentially exculpatory, Petitioner argues that Respondent committed a violation of Brady v. Maryland, 373 U.S. 83 (1963).
In its October 11, 2005 Order, the Court found it appropriate for the Magistrate Judge to conduct an evidentiary hearing on the circumstances surrounding the destruction of the statements of Moore and Martin, and whether Petitioner was intentionally deprived of evidence in his favor. If Petitioner was intentionally deprived of such exculpatory evidence, the Court found he would be entitled to an inference in his favor. The Court stated, "[s]hould such inference and/or a positive credibility determination as to Moore's statement result in a finding that confidence in the jury's verdict is undermined, Petitioner should be entitled to another trial." (doc. 22, citing Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002).
Respondent filed its Motion for Relief from the Court's Order, arguing that the Antiterrorism and Effective Death Penalty Act of 1996, 2244(d)("AEDPA") severely restricts the availability of evidentiary hearings, and precludes an evidentiary hearing in this matter (doc. 23). Respondent argues that the state court record is sufficient to resolve any factual dispute, because the Ohio Court of Appeals found the trial court did not abuse its discretion in denying Petitioner a new trial based on the state's failure to turn over the statements of Moore and Martin (Id.). The Ohio Court of Appeals found that Moore's statement would have only been cumulative, and that because Petitioner failed to call her as a witness, to seek a continuance, or to proffer Moore's expected testimony, Petitioner could not claim the discovery of this witness provided the basis for a new trial (Id.).
The Ohio court of appeals reviewed the evidence of Petitioner's guilt, including the victims' identification of Petitioner as the perpetrator, an officer who engaged Petitioner in a high speed chase, Petitioner's statements that placed him at the scene, and Petitioner's attempt to bribe the victim not to testify (Id.). In the light of such evidence, the court found Ms. Moore's statement was immaterial, because there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed to the defense (Id.). Similarly, the Court found no evidence in the record as to the statement of Mr. Martin, and therefore found Petitioner failed to demonstrate that it was either favorable to the defense or material to the outcome of the case (Id.).
Citing Mitchell v. Rees, 114 F.3d 571 (6th Cir. 1997), Respondent argues that Petitioner has not made the requisite showing that any of the factors of 28 U.S.C. § 2254(d) apply, which would overcome the presumption of correctness due state court factual findings, and permit the court to hold an evidentiary hearing (Id.). Respondent further argues under Mitchell that should Petitioner overcome the presumption, it is further incumbent upon him to show cause for his failure to develop the facts in the state court proceeding, demonstrate actual prejudice, and to show that a fundamental miscarriage of justice would result from failure to hold an evidentiary hearing (Id.).
Respondent further argues that the AEDPA made the standard for evaluating a request for an evidentiary hearing even more stringent (Id.). Respondent cites the statute, which states
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. . .the claim relies on. . . a factual predicate that could not have been discovered through the exercise of due diligence, and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for ...