BALLEW v. MITCHELL, (S.D.Ohio 2001)

GEORGE C. SMITH, United States District Court

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon petitioner's motion for an evidentiary hearing, respondent's memorandum in opposition, and petitioner's reply.

Petitioner seeks an evidentiary hearing to develop facts underlying some of his allegations of ineffective assistance of counsel. Specifically, he seeks an evidentiary hearing on the following grounds for relief: grounds 6, 7, 9, and 13. Petitioner argues in his sixth claim for relief that he received ineffective assistance of counsel in connection with the mitigation phase of his trial, due to counsel's failure to obtain an independent psychologist who could have reviewed the case, assessed petitioner, and assisted the defense without having to report to either the government or the trial court. In his seventh claim for relief, petitioner argues that he received ineffective assistance of counsel, due to the failure of his counsel to consult with an attorney more experienced in capital trials following petitioner's rejection of a plea offer by the state that would have resulted in a sentence of less than death. Petitioner argues in his ninth claim for relief that he received ineffective assistance of counsel because defense counsel failed to raise as a mitigating circumstance petitioner's adjustment to prison and to the structured life of incarceration. Finally, in his thirteenth claim for relief, petitioner argues that he received ineffective assistance of appellate counsel.

Initially, the Court concludes that a hearing is not permitted or warranted on petitioner's thirteenth claim for relief, since the Court determined in its Opinion and Order of March 7, 2001, that claim thirteen is procedurally barred, and that petitioner did not establish cause and prejudice sufficient to excuse the default. Since the Court will not be reviewing claim thirteen on the merits, an evidentiary hearing on the claim would be pointless.

Whether a habeas corpus petitioner is entitled to an evidentiary hearing is governed by 28 U.S.C. § 2254(e)(2). That section provides:

(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.

28 U.S.C. § 2254(e)(2) (1996). This statutory provision places substantial restrictions on the authority of district courts to conduct an evidentiary hearing; but, "[b]y the terms of its opening clause the statute applies only to prisoners who have `failed to develop the factual basis of a claim in State court proceedings.' If the prisoner failed to develop the facts, an evidentiary hearing cannot be granted unless the prisoner's case meets the other conditions of § 2254(e)(2)." Michael Williams v. Taylor, 529 U.S. 420, 430 (2000).

The opening clause directs attention to the petitioner's efforts to develop the underlying facts of his constitutional claim in the state courts. In Williams, the Supreme Court explained that "fail," in its customary sense, "connotes some omission, fault, or negligence" on the part of the person who failed to accomplish an act. The Supreme Court accordingly held that, "Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams, 529 U.S. at 432. The Supreme Court made various observations in Williams about the "diligence" requirement contemplated by the opening clause of § 2254(e)(2). "The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts.*** diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court . . . ." Williams, 529 U.S. at 435. The Supreme Court also stated, "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.

Petitioner argues that he exercised the diligence described by the Supreme Court because he consistently sought to develop the facts underlying his claims, only to have the state courts reject his requests. He argues that, since he never had an evidentiary hearing in the state courts, and since he was diligent in his efforts to persuade the state trial court hold a hearing, the fault for the failure to develop the facts underlying his claims is attributable to the government for opposing petitioner's efforts to develop the facts, and to the state courts for refusing to permit factual development.

A review of the record reveals that petitioner was reasonably diligent in his efforts to develop the facts underlying his claims of trial counsel ineffectiveness. The trial counsel ineffectiveness allegations set forth in claims six, seven, and nine were raised in petitioner's state postconviction action and supported by affidavits. Petitioner also sought discovery, an evidentiary hearing, and a motion for the appointment of another attorney expert. The trial court denied petitioner's postconviction action without granting petitioner's requests for discovery, a hearing, or the appointment of an attorney expert. These facts satisfy the diligence requirement of § 2254(e)(2). See Jackson v. Anderson, 141 F. Supp.2d 811, 828 (N.D. Ohio 2001) ("The Petitioner sought an evidentiary hearing in the state court, which was denied, and thereby satisfied the diligence requirement of § 2254(e)(2)."); Morales v. Coyle, supra, 98 F. Supp.2d 849, 893 (N.D. Ohio 2000) (quoting Jackson v. Anderson, supra); but see Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) ("Mere requests for evidentiary hearings will not suffice; the petitioner must be diligent in pursuing factual development of his claim."), cert. denied, 121 S.Ct. 1250 (2001). Respondent does not dispute petitioner's assertion that he satisfied the diligence requirement, but argues that a hearing simply is not warranted on any of petitioner's claims.

Although § 2254(e)(2) governs whether an evidentiary hearing can be held, it is the district court's discretion that determines whether an evidentiary hearing should be held. Morales, supra, 98 F. Supp.2d at 893 (citing McDonald v. Johnson, 139 F.3d 1056, 1059-1060 (5th Cir. 1998)). Petitioner arguably has cleared the first threshold; he has not necessarily cleared the second. An evidentiary hearing may not be necessary where the district court expands the record to include documentary evidence. Cardwell v. Greene, 152 F.3d 331, 337-38 (4th Cir.), cert denied, 525 U.S. 1037 (1998).

[W]e conclude that the district court properly declined to conduct an evidentiary hearing. * * * Despite repeated assertions that analysis of his ineffective assistance claim requires an evidentiary hearing, Cardwell has failed to forecast any evidence beyond that already contained in the record, or otherwise to explain how his claim would be advanced by an evidentiary hearing. The district court has already expanded the record to permit the inclusion of the reports completed by Drs. Hart and Hagan. We have long held that the need for an evidentiary hearing may be obviated by such expansion of the record.

Cardwell, 152 F.3d at 338; see also McDonald v. Johnson, supra, 139 F.3d at 1060 (holding that evidentiary hearing was not necessary since district court had considered affidavits of petitioner and petitioner's trial counsel regarding plea).

The information that petitioner seeks to develop through an evidentiary hearing is already a part of the record, can be made a part of the record, or is otherwise unnecessary. Petitioner suggests that he would call the following witnesses: Dr. Kathryn Burch, attorney Richard Vickers, petitioner himself, an attorney expert, and petitioner's trial counsel, William Whalen. According to petitioner, Dr. Burch would testify, in connection with petitioner's sixth claim for relief, that the abandonment of petitioner by his parents had a crushing impact on petitioner's esteem and development. Dr. Burch would also explain, with respect to petitioner's ninth claim for relief, the reasons why petitioner would adapt favorably to incarceration. Dr. Burch's opinions were set forth in her affidavit and report attached to petitioner's state postconviction action. J.A. Vol. V, at 862-874. According to petitioner, Richard Vickers would testify regarding his own experience and expertise in dealing with plea bargains in capital cases. The essence of that testimony, like Dr. Burch's, was set forth in the affidavit of Mr. Vickers that was attached to petitioner's postconviction action. J.A. Vol. V, at 875-884. Petitioner indicates that his own testimony would relate to the circumstances of counsel's representation of him, his adjustment to prison life, and the nature of the plea bargain that was offered to him by the state. Petitioner submitted an affidavit with his postconviction action attesting to the fact that he had achieved a Class A prison classification, and that his attorney failed to offer any recommendations or advice when the state first made a plea offer to petitioner, and did not recommend that petitioner accept the state's plea offer until the trial became imminent. J.A. Vol. V, at 885. Petitioner further indicates that he would call an attorney expert to testify about the standards and norms governing attorney practice in capital trials. Petitioner offers little detail as to what his trial attorney, William Whalen, would testify; however, his deposition apparently reveals that Mr. Whalen no longer possesses any files from petitioner's case, that he has very limited recollections of petitioner's trial, and that his recitation of the sequence of certain events in connection with petitioner's case were inaccurate and had to be corrected by the government's attorney. Petitioner does assert that, although Mr. Whalen testified that he was in good standing with the Supreme Court of Ohio, records indicate otherwise.

Like the courts in Cardwell and McDonald, this Court concludes that an evidentiary hearing is not necessary. The affidavits of Don Byars and his wife, Lauretta Byars, who became acquainted with and mentored petitioner through the "Big Brother" program, as well as the deposition of petitioner's trial attorney, William Whalen, may be made a part of the record through Rule 7 of the Rules Governing Section 2254 Cases. That rule permits federal habeas corpus courts to direct the parties to supplement the state court record with materials relevant to the court's resolution of the petition. The first two sub-parts of Rule 7 provide:

Sub-parts(c) and (d) of Rule 7 relate to submission of any additional materials to the opposing party and to authentication of those materials.

(a) Direction for expansion. If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.

(b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as part of the record.

Rule 7, Rules Governing Section 2254 Cases. According to the Advisory Committee Notes, the purpose of the rule is not only to enable the district court to dispose of petitions not dismissed on the pleadings without the time and expense of an evidentiary hearing, but also to assist the district court in determining whether an evidentiary hearing is warranted. See Blackledge v. Allison, 431 U.S. 63, 81 (1977); see also Vincent v. Louisiana, 469 U.S. 1166, 1169-1170 (1985) (Brennan, J., dissenting). The decision of whether to order expansion under Rule 7 is within the sound discretion of the district judge. See Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.), cert. denied, 488 U.S. 928 (1988). To qualify for expansion under Rule 7, the materials to be added need only be relevant to the determination of the merits of the constitutional claims. Pursuant to Rule 7, this Court will direct that the affidavits of Don Byars and Lauretta Byars, as well as the deposition of William Whalen, be added to the record.

The record already contains the affidavits of Dr. Kathryn Burch, Richard Vickers, and petitioner himself. The Court is mindful that factual development through evidentiary hearings affords certain benefits and advantages that factual development through the addition of mere documentary evidence does not. That said, petitioner has not demonstrated, and it does not otherwise appear to the Court, (having reviewed the affidavits by Dr. Burch, Mr. Vickers, petitioner, Don Byars, and Lauretta Byars), what more could be developed in an evidentiary hearing. Although the Court has not yet reviewed the deposition of petitioner's trial attorney, William Whalen, it would seem that very little additional information could be obtained from him at an evidentiary hearing.

"Rule 7, in its traditional role, would not effectively render subdivision (e)(2) a nullity, nor is it true vice versa; the habeas court may expand the record motivated only by its responsible concern that it provide the meaningful federal review of constitutional claims that the writ of habeas corpus has contemplated throughout its history and should review additional materials that are no broader than necessary to meet the needs of the court. Further, whether or not the court uses Rule 7, a petitioner who is foreclosed by § 2254(e)(2) still loses the valuable advocacy opportunity to select the full range of materials he deems relevant, to defend them against the state's cross-examination, to cross-examine the state's counter-evidence, and, perhaps most importantly, to have the federal habeas court then make new and independent credibility findings based on live, in court testimony." McNair v. Haley, 98 F. Supp.2d 1270, 1284 (M.D. Alabama 2000) (internal quotation marks and citations omitted).

Nor is the Court persuaded that the testimony of an "attorney" expert is warranted at this time. Although the Court does not go so far as to say that testimony on the prevailing professional standards by an attorney with experience and expertise in defending capital cases would never be appropriate, ultimately, the reasonableness of a lawyer's representation of a criminal defendant is ultimately a question of law to be decided by the Court. To a large extent, the prevailing professional standards governing attorney practice in defense of criminal cases have been addressed in the pertinent case law. See Noland v. French, 134 F.3d 208, 217 (4th Cir.) petitioner was not prejudiced by the state courts' refusal to allow an "attorney" expert to testify about the general standard of practice in capital trials), cert. denied, 525 U.S. 851 (1998).

In sum, the Court concludes that an evidentiary hearing, although not precluded by § 2254(e)(2), is nevertheless not necessary at this time. Should the Court determine in its review of the merits of petitioner's claims, that a genuine factual dispute exists which cannot be resolved on the record before the Court or through further expansion of the record, the Court may reconsider this decision.

For the foregoing reasons, petitioner's motion for an evidentiary hearing is DENIED. The Court construes petitioner's reply to respondent's memorandum in opposition as a motion to expand the record with the affidavits of Don Byars and Lauretta Byars and, pursuant to Rule 7, hereby GRANTS petitioner's motion to expand the record with those two affidavits. Further, the Court DIRECTS petitioner, pursuant to Rule 7, to EXPAND the record with the deposition of William Whalen.