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Skatzes v. Warden, Mansfield Correctional Institution

United States District Court, S.D. Ohio, Western Division, Dayton

June 1, 2017

GEORGE SKATZES, Petitioner,
v.
WARDEN, Mansfield Correctional Institution, Respondent.

          Timothy S. Black District Judge.

          DECISION AND ORDER

          Michael R. Merz United States Magistrate Judge.

         This 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).

         Each of 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.

         The 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 24197).

         EXPANSION OF RECORD

         Skatzes 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 parties;
(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.)

         Skatzes 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[1] 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. Id.

         Respondent 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 the merits.

Id. at PageID 21313.

         Petitioner 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.

         The 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.

         Any 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.

         In 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).

         Rule 7 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).

         “When 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. 2001).
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.[2]

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, 2010).

         Pursuant 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).

         RES JUDICATA

         In his 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).

         As 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, and Jefferson).

         In 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.

         The 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 constitutional error.

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).

         In his 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).

         The 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.

         Skatzes 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 MURDER."
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 disagreed.
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 counsel.
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 ...

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