United States District Court, S.D. Ohio, Western Division, Dayton
Timothy S. Black District Judge.
DECISION AND ORDER
Michael R. Merz United States Magistrate Judge.
capital habeas corpus case is before the Court on
Petitioner's Motion to Expand the Record (ECF No. 145)
and Motion to Correct and Expand the Record (ECF No. 146).
Additionally, the question of ripeness as to Skatzes'
gateway claim of actual innocence as it pertains to the
procedural posture of his First Ground for Relief,
ineffective assistance of counsel (See Traverse, ECF No. 42),
as well as his Memorandum on Gateway Innocence Argument for
Discovery Documents Filed Under Seal are before the Court
(ECF No. 96).
the pending motions is a non-dispositive pre-trial motion
which a Magistrate Judge has authority to decide in the first
instance, subject to appeal to the presiding District Judge.
Court had previously granted discovery and the parties
entered into a stipulated protective order regarding sealing
of the discovery (ECF Nos. 76, 81, 83, 104, 105, 108).
Petitioner then briefed the applicability of the discovery
documents with respect to his argument that, although this
particular sub-claim was defaulted in state court, it fell
under the miscarriage of justice exception, to which the
Warden responded (Memo on Gateway Actual Innocence, ECF No.
96); (Response to Memo on Gateway Innocence, ECF No. 104).
Status reports as to the ripeness of the gateway innocence
argument have been submitted by both parties (ECF Nos. 114,
115, 116) Petitioner has argued that the case is not yet ripe
as he may request additional discovery as developed through
the deposition of trial counsel (ECF No. 114, PageID 21310).
Petitioner's counsel planned to submit both the
deposition transcripts as well as supporting confidential
discovery documents used during the depositions, and the
Court had previously granted him until September 30, 2014, to
take the depositions and move to expand the record with the
discovery as it related to his gateway innocence argument.
Id., see also Order Granting Unopposed
Motion to Continue Discovery until September 30, 2014, ECF
No. 101. On September 30, 2014, Petitioner filed under seal a
Motion to Expand the Record Under Habeas Rule 7, with
discovery attachments (ECF Nos. 118, 119). This was denied
for failure to comply with proper citation of record
references, and Petitioner refiled (ECF Nos. 145, 146, 147).
Respondent asserts that the case is not only ripe but that
consideration of the discovery documents is precluded by
Cullen v. Pinholster, 563 U.S. 170, (2011)
(Warden's Status Report, ECF No. 115, PageID 21312)(see
also Warden's Refiled Status Report, ECF No. 148, PageID
wishes to expand the record with the following:
(1) The deposition transcript of trial counsel Robert Dixon
with deposition exhibits;
(2) The deposition transcript of trial counsel Jeffry
Kelleher with deposition exhibits;
(3) The affidavit of the post-conviction mitigation
psychologist, Dr. Jeffrey Smalldon;
(4) The set of records relied on by Dr. Smalldon and
referenced by him during his review of the case;
(5) All exhibits attached to Skatzes's Gateway Innocence
Memorandum that were filed with this Court under seal on
January 21, 2014;
(6) Transcript excerpts from the trials of Jason Robb, Carlos
Sanders (Hasan), and James Were that Skatzes relied on in his
Traverse to support his gateway innocence argument;
(7) Transcript of Anthony Lavelle's polygraph examination
taken on May 17, 1994, that Skatzes relied on in his Traverse
to support his gateway innocence argument;
(8) Affidavits and declarations taken from Wayne Flannigan,
Roy Donald, Greg Durkin, James Bell, and Leroy Elmore filed
in other Lucasville cases, and relied on by Skatzes in his
Traverse to argue gateway innocence;
(9) Transcript of a records deposition of Austin Stout,
counsel for the Ohio Department of Rehabilitation and
Corrections [hereafter, ODRC], with exhibit, taken in this
habeas case on September 18, 2012, on the joint motion of the
(10) Recording and transcript of post-trial statement made by
Prosecutor Daniel Hogan, along with declaration of Derrick
Jones who interviewed Hogan;
(11) Declaration of attorney Staughton Lynd, authenticating
materials obtained from other Lucasville cases that Skatzes
relied on [in] his Traverse;
(12) Affidavit of habeas counsel Vicki Werneke, explaining
her review of trial counsel's file, and;
(13) Affidavit of habeas counsel Joseph Wilhelm, explaining
his review of the trial counsel's files.
(Motion, ECF No. 146, PageID 24147.)
asserts that the expansion is proper because these materials
are “relevant to the determination of the merits of the
petition.” Id. at 24148. He argues that in
terms of his ineffective assistance of counsel claims, his
First, Third, Seventh, and Eleventh Grounds for Relief, he is
entitled to expansion of the record and de novo
review. Id. at 24154-6. He bases this on his belief
that the Ohio Court of Appeals misapplied the procedural bar of
res judicata to several of his sub-claims, completely failed
to adjudicate others, and that the decision is contrary to an
objectively unreasonable application of Supreme Court law
under §§ 2254(d)(1). Id. at PageID
24156-8. Additionally, he argues that the expansion of the
record is necessary in determining whether there is a basis
for a miscarriage of justice claim to excuse the procedural
default of sub-claim A in the First Ground for Relief.
filed a Memorandum in Response to Petitioner's Gateway
Innocence Argument on February 24, 2014 (ECF No. 104). The
Warden primarily attacks Petitioner's position on the
basis that the “newly offered evidence” is not
new, but rather largely consists of arguments presented at
trial, and as such is not sufficient to meet the actual
innocence gateway of Schlup v. Delo, 513 U.S. 298,
324 (1995). Id. at PageID 21261-5. Later, in his
status report, the Warden further raises the argument that
under Cullen v. Pinholster, 563 U.S. 170 (2011),
Petitioner is prohibited from presenting new material in
federal court unless it falls under one of the exceptions
(ECF No. 115, PageID 21312). Respondent argues,
Skatzes fails to present any argument as to what exception
under Pinholster the additional discovery would be
able to be considered by this Court. It is no longer in doubt
that review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on
Id. at PageID 21313.
counters however that Pinholster is in effect only
if the state court adjudicated the claims on the merits
(Motion, ECF No. 146, PageID 24152, citing
Pinholster and McClellan v. Rapelje,
703 F.3d 344, 351 (6th Cir. 2013)). If the state
court's adjudication deserves no deference, as Skatzes is
presently arguing, then the federal court may take new
evidence. Id. at PageID 24153.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) took effect on April 24, 1996. Skatzes
filed his petition on April 5, 2010 (Doc. No. 25). As
Skatzes' petition was submitted after the Act was signed
it is subject to its provisions. 28 U.S.C. § 2254(d), as
amended by the AEDPA, provides:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless
the adjudication of the claim-(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
(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.
factual finding made by the state court is presumed to be
correct and a petitioner must rebut the presumption of
correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e). A state court's decision is contrary to
the Supreme Court's clearly established precedent if (1)
the state court applies a rule that contradicts the governing
law as set forth by the Supreme Court case law, or (2) the
state court confronts a set of facts that is materially
indistinguishable from those in a decision of the Supreme
Court and nonetheless arrives at a result different from
Supreme Court precedent. Terry Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A state court's decision
involves an unreasonable application of clearly established
federal law “if the state court identifies the correct
governing legal rule [from the Supreme Court] . . . but
unreasonably applies it to the facts of the particular state
prisoner's case, ” “if the state court either
unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply, . . .
[if the state court] unreasonably refuses to extend that
principle to a new context where it should.”
Williams, 529 U.S. at 407-08.
Cullen v. Pinholster, 563 U.S. 170 (2011), the
Supreme Court held that a federal court's review of a
state court decision under 28 U.S.C. § 2254(d)(1) is
strictly limited to “review of the state court record,
” and that evidence acquired through an evidentiary
hearing may not be considered. Id. at 182.
In [Pinholster], the petitioner argued that his
penalty phase attorney was ineffective because that attorney
failed to introduce mitigating evidence of mental disorders.
[Pinholster, ] 131 S.Ct. at 1396. In denying the
petition, the Supreme Court held that a federal court's
review of a state court decision under 28 U.S.C. §
2254(d)(1) is strictly limited to “review of the state
court record . . . .” Id. at 1399. The Supreme
Court further stated that section 2254(e)(2) only
“continues to have force where Section 2254(d)(1) does
not bar federal habeas relief.” Id. at 1401.
The Supreme Court explained this holding, stating that
Section 2254(d) only governs claims that were adjudicated on
the merits in state court whereas Section 2254(e)(2)'s
limit on habeas discovery “restricts the discretion of
federal habeas courts to consider new evidence when deciding
claims that were not adjudicated on the merits in state
court.” Id. [Pinholster] indicates
that the Court cannot now consider the contents of outside
discovery in determining if the decision of the state court
was an “unreasonable application of [ ] clearly
established federal law, ” so long as the state court
ruling was made on the merits. 28 U.S.C. § 2254(d)(1).
FN1 FN1. The plain language of 28 U.S.C. § 2254(d)(2)
also limits the Court's review to of [sic] “the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2); [Cullen]. 131 S.Ct. at
1400 n. 7. Thus, under both Section[s] ¶ 2254(d), the
Court may not consider outside evidence unless the petitioner
did not already litigate the issue on the merits.
Trimble v. Bobby, No. 5:10-CV-00149, 2011 U.S. Dist.
LEXIS 42165, *5-6 (N.D Ohio, Apr. 19, 2011).
of the Rules Governing Section 2254 Cases, states generally
that if a petition is not dismissed, a judge may direct the
parties to expand the record by submitting additional
materials related to the petition. “The purpose of Rule
7 ‘is to enable the judge to dispose of some habeas
petitions not dismissed on the pleadings, without the time
and expense required for an evidentiary hearing.'”
28 U.S.C. § 2254 (Rule 7, advisory committee notes);
see also Jamison v. Collins, 291 F.3d 380, 387
(6th Cir. 2002).
expansion of the record is used to achieve the same end as an
evidentiary hearing, the petitioner ought to be subject to
the same constraints that would be imposed if he had sought
an evidentiary hearing.” Boyko v. Parke, 259
F.3d 781, 790 (7th Cir. 2001).
Petitioner states “The requirements contained in
Section 2254(e)(2) are also applicable to Habeas Rule 7
motions.” Id. at 2, citing Holland v.
Jackson, 542 U.S. 649, 653 (2004); Owens v.
Franks, 394 F.3d 490, 498-99 (7th Cir.2005);
and Smith v. Palmateer, 397 F.3d 1236, 1241
(9th Cir. 2005). Respondent insists on the same
legal proposition, relying on Samatar v. Clarridge,
225 Fed.Appx. 366 (6th Cir. 2007). The
Samatar court also relied on Owens and on
Boyko v. Parke, 259 F.3d 781 (7th Cir.
This Court agrees with the proposition because allowing a
petitioner to introduce evidence through expansion of the
record which he or she could not introduce at an evidentiary
hearing because of § 2254(e)(2) would subvert the
purpose of Congress in adopting the statute as part of the
AEDPA. Congress did not purport to amend Habeas Rule 7, but
AEDPA and the Habeas Rules are in pari materia and
should be interpreted consistently with one another to carry
out the Congressional purpose.
Hughbanks v. Hudson, 2009 U.S. Dist. LEXIS 87848,
*3-4 (S.D. Ohio 2009); followed Bays v. Warden, Case
No. 3:08-cv-076 (Decision and Order, ECF. No. 60, July 19,
to AEDPA and before Pinholster, a prisoner could
have introduced new evidence gained in an evidentiary hearing
or through discovery "only if [the prisoner] was not at
fault in failing to develop that evidence in state court, or
(if he was at fault) if the conditions prescribed in §
2254(e)(2) were met." Holland v. Jackson, 542
U.S. 649, 652-53 (2004), citing Michael Williams v.
Taylor, 529 U.S. 420, 431-37 (2000). However,
post-Pinholster, “the Sixth Circuit has, under
Section 2254(d)(1) review, disregarded evidence gathered
during federal habeas proceedings.” Group v.
Robinson, 2015 U.S. Dist. LEXIS 124956, *5 (N.D. Ohio
2015), citing Loza v. Mitchell, 766 F.3d 466, 494
(6th Cir. 2014). In reaching this conclusion the
court quoted Caudill v. Conover, 871 F.Supp.2d 639,
645 (E.D. Ky 2012), in that “[i]t would defy logic to
preclude a petitioner from developing factual information in
an evidentiary hearing [under Pinholster], but allow
[the petitioner] to introduce the same factual information
via discovery and expansion of the record.”
Id. Thus, the limitations in Pinholster
apply to expansion of the record as well as to evidentiary
hearings. Moore v. Mitchell, 708 F.3d 760, 780-784
(6th Cir. 2013); see also Campbell v.
Warden, 2016 U.S. Dist. LEXIS 15557, *5 (S.D. Ohio
2016); Anderson v. Robinson, 2014 U.S. Dist. LEXIS
85114, *7 (S.D. Ohio 2014); Baumgartner v. Eppinger,
2013 U.S. Dist. LEXIS 139320, *5 (N.D. Ohio 2013). Therefore,
in order to obtain review of his evidentiary documents as
they pertain to his constitutional claims, a habeas
petitioner must overcome Pinholster and establish
that the state court's decision fails under §
2254(d)(1) or (2).
first sub-section of claims, Skatzes argues that his motion
to expand the record does not fall under the
Pinholster restrictions as the court of appeals
improperly applied res judicata against him on several of his
sub-claims (Motion, ECF. No. 146, PageID 24156-7).
Respondent previously noted in the Return of Writ, and again
in his Memorandum in Response to Petitioner's Memorandum
on Gateway Innocence, it is his position that Skatzes is
barred from merits review due to procedural default,
specifically in Skatzes' failure to appeal the trial
court's denial of relief in post-conviction proceedings
(Memo, ECF No. 104, PageID 21256 as it relates to Law, Moss,
addressing the doctrine of procedural default in habeas,
Judge Spiegel noted in Jamison v. Collins,
100 F.Supp.2d 647, 669-70 (S.D. Ohio 2000) that:
Principles of comity necessary to a federal system narrow a
federal court's review of a petition for a writ of habeas
corpus brought by a state prisoner. See Coleman v.
Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115
L.Ed. 640 (1991). The Supreme Court explains that
“[u]nder our federal system, the federal and the state
‘courts [are] equally bound to guard and protect rights
secured by the Constitution.”' Rose v.
Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982) (quoting Ex parte Royall, 117 U.S. 241, 251,
6 S.Ct. 734, 29 L.Ed. 868 (1886)); see Coleman, 501
U.S. at 731, 111 S.Ct. 2546 (quoting the same). Thus, to
ensure the states an opportunity to protect these rights, the
doctrine of procedural default requires that the state court
retain “the first opportunity to protect these rights,
the doctrine of procedural default requires that the state
court retain “the first opportunity to address and
correct alleged violations of state prisoner's [sic]
rights.” Coleman, 501 U.S. at 731, 111 S.Ct.
2546. The doctrine of procedural default provides that, if a
state court previously dismisses [sic] a state prisoner's
federal claim on the grounds that the prisoner failed to
comply with a state procedural rule, then a federal court
ordinarily cannot consider the merits of that federal claim.
Id. at 729-730, 111 S.Ct. 2546.
Sixth Circuit Court of Appeals requires a four-part analysis
when the State alleges a habeas claim is precluded by
procedural default. Guilmette v. Howes, 624 F.3d
286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th
Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48
(6th Cir. 1998), citing Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d
407, 417 (6th Cir. 2001).
First the court must determine that there is a state
procedural rule that is applicable to the petitioner's
claim and that the petitioner failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts
actually enforced the state procedural sanction, citing
County Court of Ulster County v. Allen, 442 U.S.
140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural
forfeiture is an "adequate and independent" state
ground on which the state can rely to foreclose review of a
federal constitutional claim.
Once the court determines that a state procedural rule was
not complied with and that the rule was an adequate and
independent state ground, then the petitioner must
demonstrate under Sykes that there was
"cause" for him to not follow the procedural rule
and that he was actually prejudiced by the alleged
Maupin, 785 F.2d at 138; accord,
Hartman v. Bagley, 492 F.3d 347, 357 (6th
Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568,
576 (6th Cir. 2002).
initial post-conviction proceeding Skatzes raised the claim
that his trial counsel were ineffective for falling to
investigate and call exculpatory witnesses (Aaron Jefferson,
Jesse Bocook, Wayne Flannigan, defense counsel Jeffery
Kelleher and Robert Dixon, three jurors, and an attorney
expert Richard Ketcham) regarding the David Sommers murder
(Post-Conviction Petition, ECF No. 68-7, PageID 8036-7). He
argues that the state court erred in its determination that
the portion concerning inmate Aaron Jefferson was barred by
res judicata (Motion, ECF No. 146, PageID 24156).
trial court found that the affidavits of Aaron Jefferson,
Jesse Bocook, and Wayne Flannigan did not contain facts
sufficient to render the sentence voidable as counsel's
decision whether to call a witness is a matter of trial
strategy. Further the court found that the portion related to
Aaron Jefferson could have been raised on direct appeal as
Brookover testified during Skatzes' trial that Aaron
Jefferson was present at the beating of Sommers [Trial Tr.
3506] (Decision, Order, and Entry Denying Petitioner's
Post-Conviction Petition, ECF No. 68-10, PageID 8631-34). As
Skatzes was represented by new counsel on direct appeal, this
portion of the ineffective assistance claim should have been
raised then, and as such was barred by res judicata in
post-conviction. Id. at 8632 citing State v.
Cole (1982), 2 Ohio St.3d 112, 113-114. Moreover, the
additional evidence submitted by Skatzes failed to support a
substantive ground for relief. Id. at 8632-34.
again raised this claim on appeal during post-conviction
(Brief, ECF No. 70-1, PageID 9971), as well as before the
Ohio Supreme Court, which declined jurisdiction. (Memo, ECF
No. 70-11, PageID 11576-80). The state court
of appeals affirmed both the trial court's bar of res
judicata on the portion pertaining to Jefferson's
testimony as well as its holding on the merits.
Skatzes' sixth assignment of error states:
"THE TRIAL COURT ERRED IN REJECTING PETITIONER'S
FIRST GROUND FOR RELIEF, THAT PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE
TO CALL EXCULPATORY WITNESSES REGARDING THE SOMMERS
Skatzes presented affidavits from inmates Aaron Jefferson,
Jesse Bocook, and Wayne Flannigan, each of whom claimed that
Skatzes had not been involved in Sommers' murder, and
from his trial attorneys, who claimed that they had not had a
strategic reason for failing to call these inmate witnesses.
Skatzes claims that these affidavits demonstrate the
ineffective assistance of trial counsel in failing to call
the inmates to testify on his behalf. The trial court
As the trial court noted, testimony at Skatzes' trial
revealed that Jefferson had been present at Sommers'
murder and might have been able to provide exculpatory
evidence. Thus, the failure to call Jefferson could have been
raised on direct appeal and is barred by res judicata.
Neither Jefferson, Bocook, nor Flannigan indicated in his
affidavit that Skatzes' trial counsel or other agents of
the state knew of the information contained therein before
trial, and the attorneys do not claim that they knew this
information before trial. If counsel had no reason to know of
or suspect these claims, the affidavits fail to establish the
constitutional violation of ineffective assistance of
Furthermore, the credibility of the inmates' affidavits
is questionable. The trial court observed that the affidavits
“raised several red flags.” For example, the
affidavits of Jefferson and Bocook are inconsistent as to who
was involved in killing Sommers, and the inmates' stories
have changed over time.
The trial court properly concluded that Skatzes' evidence
on this issue did not establish that he had been denied the