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Elmore v. Shoop

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

July 30, 2019

PHILLIP ELMORE, Petitioner,
v.
TIM SHOOP, Warden, Respondent.

          Edmund A. Sargus, Jr. Chief Judge

          DECISION AND ORDER ON MOTIONS TO AMEND AND STAY AND FOR EVIDENTIARY HEARING

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This capital habeas corpus case is before the Court on Petitioner Phillip Elmore's Motion to Amend his habeas corpus petition (ECF No. 175); Motion for an Evidentiary Hearing (ECF No. 183); and Motion to Stay and Abate[1] Federal Habeas Corpus Proceedings Pending Disposition of Successive State Post-Conviction Petition (“Motion to Stay, ” ECF No. 187). Respondent is opposed (ECF Nos. 186, 196). Elmore, in turn, has filed reply memoranda in support (ECF Nos. 193, 194, 197). The Court heard oral argument on the motions on July 24, 2019

         All three Motions are non-dispositive pretrial motions on which an assigned Magistrate Judge has authority to enter a decision in the first instance. Fed.R.Civ.P. 72(a); Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S. Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.).

         The Motion to Amend

         Petitioner seeks to file a Fourth Amended Petition to:

         1. “[a]dd Claim XX, that he is intellectually disabled and exempt from execution under the Eighth Amendment pursuant to Moore v. Texas (Moore II), 586 U.S., [139 S.Ct. 666] (per curiam), Moore v. Texas (Moore I), 581 U.S.___, 137 S.Ct. 1039 (2017), and Hall v. Florida, 572 U.S. 701 (2014).” (Motion to Amend, ECF No. 175, PageID 13185).

         2. “discussion of the intervening Supreme Court decision in McCoy v. Louisiana, 584 U.S.___, [139 S.Ct. ___] (2018).” Id.

         3. “discussion of the ineffectiveness of trial counsel in failing to secure and present evidence to the trial court and jury that Mr. Elmore suffers intellectual disability.” Id.

         Motions to amend habeas corpus petition are governed by 28 U.S.C. § 2242 which incorporates Fed.R.Civ.P. 15. The general standard for considering a motion to amend under Rule 15 was enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of any allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given."

371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997) (citing Foman standard).

         In considering whether to grant motions to amend under Rule 15, a court should consider whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d 1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir. 1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United States ex rel. Antoon v. Cleveland Clinic Found., 978 F.Supp.2d 880, 887 (S.D. Ohio 2013)(Rose, J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio March 31, 2011) (Frost, J.).

         Likewise, a motion to amend may be denied if it is brought after undue delay or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington, M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112 (1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile.”). In Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994), the court repeated and explicated the Foman factors, noting that “[d]elay by itself is not a sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Id. at 130, quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989). These considerations apply as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341 (6thCir. 1998), quoting Brooks.

         The Supreme Court of the United States decided Atkins v. Virginia, 536 U.S. 304, on June 20, 2002, making it unconstitutional for a State to execute a person who is intellectually disabled[2]. That decision was handed down before Elmore was tried and almost six years before he filed his original Petition in this Court on May 1, 2008. The Court opened this case and appointed counsel in July 2007, so Elmore has been represented here for more than twelve years.

         The usual concern with undue delay under Fed.R.Civ.P. 15 is late amendments that disrupt trial schedules and can cause the reopening of discovery[3]. More generally, late amendments prevent finality. The same is true with capital habeas corpus cases. Finality is a concern of the State regarding its judgment of conviction, but also for the Court, whose limited resources are burdened by continuing to litigate cases which should have been final years before.

         Elmore's excuse for seeking to amend as late as he did is that he was appointed new counsel in August 2018. But the counsel he had before, Kathleen McGarry and William Lazarow, were already experienced capital litigators when they were appointed in 2007 and vigorously litigated this case during their tenure. Habeas petitioners should not get a fresh start on the undue delay clock on account of changing counsel, and the proposed amendment here has been unduly delayed.

         In addition to undue delay, Foman requires us to consider whether Elmore has a dilatory motive. Every capital habeas petitioner has a strong motive to delay finality of his habeas case because the Supreme Court of Ohio does not set execution dates in these cases until the habeas case is finally resolved[4]. The motive to delay execution is so obvious that petitioner's counsel rarely to attempt to rebut it when filing motions in these cases and Petitioner has not done so here. Thus both undue delay and dilatory motive cut against allowing the amendment.

         The last Foman factor is futility: could the amended pleading withstand a motion to dismiss? That question requires evaluation of the merits of both the proposed pleading and any proffered affirmative defenses and some courts prefer not to reach the merits on a motion to amend. Petitioner urges the Court not to reach the merits on this motion to amend, relying on Stuckey v. Online Resources Corp., 2010 WL 11565402 (S.D. Ohio Nov. 1, 2010), and Pritchett v. Gentry, 2019 U.S. Dist. LEXIS 101556 (D. Nev. Jun. 17, 2019).

         In Stuckey, Judge Holschuh overruled objections to an order of Magistrate Judge Terry Kemp which allowed an amendment “in the exercise of discretion to permit the claim to be tested before the District Judge by way of a motion to dismiss.” This decision reflects the pattern of practice at the Columbus location of Court, at least under Judge Holschuh, where the eventual motion to dismiss would not have been referred to the assigned magistrate judge for an initial recommendation. In contrast, in habeas corpus cases referred to the undersigned, the pattern of practice for all District Judges has been to refer all pretrial matters for initial consideration by the undersigned, whether for decision under Fed.R.Civ.P. 72(a) or recommendation under Fed.R.Civ.P. 72(b). In addition, Magistrate Judge Kemp had found no undue delay and no dilatory motive.

         A practice of deferring merits consideration until after amendment also makes more case management sense when a proposed amendment must only meet a “notice pleading” requirement. Yet Rule 2 of the Rules Governing § 2254 Cases requires considerably more than notice pleading and in fact Petitioner has pleaded his claims very extensively: the proposed Fourth Amended Petition is 309 pages long (ECF No. 175-1). This is not uncommon in capital habeas corpus cases. In fact, the presently pending Third Amended Petition, filed by prior counsel, is 256 pages long (ECF No. 143).

         In Pritchett, Judge Dorsey allowed amendment to add a claim under McCoy because (1) “[p]arties in other cases now are litigating the scope and retroactive application of McCoy” and (2) there had been no state court ruling on the State's claim of procedural default, leading the judge to enter a stay under Rhines v. Weber, 544 U.S. 269 (2005), and sua sponte order a return to state court for exhaustion. Judge Dorsey particularly noted that Pritchett was not subject to the death penalty (he was serving a sentence of life without parole for murder) and had no dilatory motive. Like Judge Kemp and Judge Holschuh, she believed “[t]he viability of this claim is a question that the court should answer only after full briefing . . .”

         In contrast, in this case, Petitioner has a strong dilatory motive, as noted above, and there has been extensive briefing on the merits of the proposed new claims and defenses. It is unclear what judicial economy benefit would be achieved by postponing the futility question.

         Is Hall v. Florida Applicable to this Habeas Corpus Case?

         In Atkins v. Virginia, supra, the Supreme Court recognized a new substantive Eighth Amendment right, the right not to be executed if one is intellectually disabled. That recognition occurred in 2002 and Ohio had adopted a definition of intellectual disability and a method for adjudicating Atkins claims to that effect as of the time of Elmore's trial in 2003. In State v. Lott, 97 Ohio St.3d 303 (2002), applying Atkins, the Supreme Court of Ohio held an Ohio death row inmate could file a new post-conviction petition raising the Atkins claim within 180 days of that decision, to wit, on June 9, 2003. The burden was placed on the defendant to establish mental retardation by a preponderance of the evidence. The trial court was instructed to apply the clinical definitions of retardation approved in Atkins: (1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communications, self-care, and self-direction, and (3) onset before the age of 18. IQ tests were to be considered but were not to be determinative. Lott recognized a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70.

         Thus Atkins was firmly in place when Elmore was tried in 2003, but no claim of intellectual disability was made or litigated at trial or on direct appeal. However, a claim of ineffective assistance of trial counsel for failure to obtain a “mental retardation” expert was raised in the original Petition (ECF No. 13, PageID 179-80).

         Subject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final may not provide the basis for federal habeas relief if it announces a new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989). “Two exceptions to the Teague rule, however, permit the retroactive application of a new rule whenever: 1) the rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or otherwise prohibits imposition of a certain type of punishment for a class of defendants because of their status or offense; or 2) the rule announces a new “watershed” rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” In re Carl Green, 144 F.3d 384, 386 (6th Cir. 1998), citing Caspari v. Bohlen, 510 U.S. at 396.

         Elmore argues the rules announced in Hall, Moore I, and Moore II apply retroactively to this case because collectively they define a class of defendants who, because they are intellectually disabled under the definition adopted in these cases, may not be executed. Although Atkins adopted a new rule - the intellectually disabled may not be executed - it did not define the class of people who are protected by that right as the Supreme Court recognized in Hall and Bies.

         In Hall v. Florida, 572 U.S. 701 (2014), the Supreme Court invalidated the State of Florida's strict cutoff of an intelligence quotient (“IQ”) score of 70 for purposes of an Atkins claim. Hall filed a post-Atkins application to have his death sentence set aside because of intellectual disability. Because he had a tested IQ score of 71, the Florida courts barred him from presenting other evidence of his disability. The United States Supreme Court reversed and held the Florida statute, as interpreted by the Florida Supreme Court, to be unconstitutional. Justice Kennedy noted that in Atkins the Court had said “the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period.” 572 U.S. at 710.

         In Bies v. Bobby, 556 U.S. 825 (2009), the Court recognized that it had not in Atkins provided “definitive procedural or substantive guides for determining when” a person who claims intellectual disability “falls within the protection of the Eighth Amendment.” Justice Kennedy repeated what the Atkins court had said: “those persons who meet the “clinical definitions” of intellectual disability “ by definition . . . have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” 572 U.S. at 719-20, quoting Atkins, at 318. Justice Kennedy concluded “[t]his Court agrees with the medical experts that when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error [the Standard Error of Measurement], the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 723.

         In Moore v. Texas, 137 S.Ct. 1039 (2017)(“Moore I”), the Court reversed a holding of the Texas Court of Criminal Appeals that Moore's intellectual disability was to be evaluated in the first instance under factors that court had adopted in 1992 rather than under current medical guidelines. The Court found this conclusion “irreconcilable with Hall.” Id. at 1049. In Moore II it held that the Texas Court of Criminal Appeals decision on remand is “inconsistent with our opinion in [Moore I].” 139 S.Ct. 666');">139 S.Ct. 666, 670 (2019).

         The Magistrate Judge concludes that Hall, Moore I, and Moore II do not create a new substantive constitutional right which is retroactively applicable on collateral review. The substantive right in question was recognized in Atkins: intellectually disabled people may not be executed. Hall limits the procedures a State may use in determining intellectual disability: a State may not set an absolute cut-off of an IQ score above 70. Moore I further limits the procedures a State may use for that determination: it must assess intellectual disability in accordance with current medical ...


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