Gapen v. Bobby

• Decision Date: 24 January 2011
• Docket Number: Case No. 3:08-cv-280
• Parties: LARRY GAPEN, Petitioner, v. DAVID BOBBY, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

LARRY GAPEN, Petitioner,

v.DAVID BOBBY, Warden, Respondent.

Case No. 3:08-cv-280

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Dated: January 24, 2011

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

SUPPLEMENTAL MEMORANDUM ON PETITIONER'S FIRST MOTION FOR DISCOVERY

This capital habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 74) to the Magistrate Judge's Decision and Order (Doc. No. 71) granting in part and denying in part Petitioner's First Motion for Discovery (Doc. No. 51). The Warden has filed a Response to the Objections (Doc. No. 76). The General Order of Reference for the Dayton location of court permits a magistrate judge to reconsider decisions or reports and recommendations when objections are filed.

Petitioner sought the following discovery:

1. Depositions of trial counsel David Greer and Bobby Joe Cox.

2. All records of the Montgomery County Prosecutor's Office and the Montgomery Sheriff's Office relating to the homicides of Martha Madewell, Nathan Marshall, and Jesica Young.

3. Depositions of direct appeal attorneys Robert Lowe, Stephen Ferrell, and Jane Perry.

4. Depositions of all jurors and alternates.

5. Records, statistics, and documents submitted pursuant to Ohio Revised Code § 2929.021 from all Ohio counties, both before and after Petitioner's prosecution.

The Decision and Order from which Petitioner has appealed granted leave to depose attorneys David Greer, Bobby Joe Cox, Robert Lowe, Stephen Ferrell, and Jane Perry on the ineffective assistance of counsel claims. The Magistrate Judge denied discovery of the Sheriff and Prosecutor records because Petitioner had not shown any connection between the ineffective assistance claims and these records, particularly given the breadth of the request ("all records"). The Order also denies depositions of the jurors and alternates and issuance of a subpoena to the Ohio Supreme Court for records under Ohio Revised Code § 2929.021.

Petitioner has appealed on all of the items of discovery denied. The appeal does not stay the appealed order, since discovery is a nondispositive pretrial matter on which the Magistrate Judge is authorized to exercise the discretion conferred on the district court by Habeas Rule 6. See S. D.

Ohio Civ. R. 72.3.

Because discovery in a habeas case is within the Court's discretion, review of the Decision and Order is for abuse of that discretion. Snowden v. ConnaughtLaboratories, 136 F.R.D. 694, 697 (D. Kan. 1991); Detection Systems, Inc. v. Pittway Corp., 96 F.R.D. 152, 154 (W.D.N.Y. 1982); Doe v. Marsh, 899 F. Supp. 933, 934 (N.D.N.Y. 1995); Commodity Futures Trading Comm'n v. Standard Forex, Inc., 882 F. Supp. 40, 42 (E.D.N.Y. 1995); Bass Public Ltd. Co. v. Promus Cos., Inc., 868 F. Supp. 615, 619 (S.D.N.Y. 1994); In re Application for Order for Judicial Assistance in Foreign Proceedings, 147 F.R.D. 223, 225 (C.D. Cal. 1993); Schrag v. Dinges, 144 F.R.D. 121, 123 (D. Kan. 1992).

The three denied items are considered below.

Prosecutor's and Sheriff's Records

Petitioner seeks "All records of the Montgomery County Prosecutor's Office and the Montgomery Sheriffs Office relating to the homicides of Martha Madewell, Nathan Marshall, and Jesica Young." (Motion, Doc. No. 51, PagelD 1061.) In the Motion, Petitioner made a very general claim that these records were relevant to his Tenth, Eleventh, and Twelfth Grounds for Relief. Id. The Memorandum in Opposition (Doc. No. 63) and the Reply (Doc. No. 69) focused on general arguments about the scope of discovery in habeas cases. It is only in the Objections that Petitioner makes an attempt to relate these records to a Ground for Relief. The assertion in the Objections is that defense counsel ignored "numerous red flags related to mitigation" (Objections, Doc. No. 74, PagelD 1336). It is in Ground Twelve A that Gapen asserts he "was denied the effective assistance of counsel when his counsel failed to fully investigate and present mitigating evidence relevant to the overriding issues in his case."

Petitioner's argument is that the prosecutor improperly used a previous incident in which Gapen was arrested for kidnapping "extensively during the trial." Id. He asserts "[t]he requested documents surely contain documentation of Gapen's strange behavior, demeanor, and statements around the time he was arrested on the kidnapping charge." Id. The attempted connection with ineffective assistance of trial counsel is argued as follows:

The requested documents are therefore relevant to Gapen's trial counsel IAC claims, because they would demonstrate that counsel unreasonably failed to obtain the documents before trial; that counsel unreasonably failed to investigate available mitigation red flags; thatcounsel unreasonably failed to fully investigate, develop and present available mitigation evidence; and other such allegations related to demonstrating counsel's performance.

Id. The argument is unpersuasive for several reasons. First of all, it is not at all clear that records of the Sheriff and Prosecutor relating to the three homicides in this case would have materials from the prior kidnapping case. Secondly, the request is overbroad: why "all records" instead of "records relating to the prior case"? Petitioner has been granted leave to depose Messrs. Greer and Cox and is free to ask them all relevant questions about their mitigation investigation. If those depositions indicate a need for a narrow document subpoena to either the Prosecutor or the Sheriff, that would be another matter. But at this point Petitioner has not justified an "all records" subpoena to these two public officials. His request amounts to an oft-forbidden "fishing expedition." Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Williams v. Bagley, 380 F.3d 932, 974, (6^th Cir. 2004), citing Rector v. Johnson, 120 F.3d 551, 562 (5^th Cir. 1997); see also Stanford v. Parker, 266 F.3d 442, 460 (6^th Cir. 2001).

Juror Misconduct

The bulk of the Objections focus on the juror misconduct claim, the Fourteenth Ground for Relief.

What is the relevant claim for relief?

The Objections begin by accusing the Magistrate Judge of misconstruing the Fourteenth Ground for Relief "as merely raising a single claim that a Christian Bible was physically present in the jury room during deliberations. But in fact, Gapen raised several claims involving several different constitutional violations, some of which are structural errors." (Objections, Doc. No. 74, PageID 1327-1328.) Instead of referring to the Petition for these claims, the Objections direct the reader to the Traverse. Id.

In the Motion for Discovery, Gapen makes no reference to the Traverse or to there being several different constitutional violations. The entire text of this portion of the Motion for Discovery reads:

B. Juror Misconduct

In the Fourteenth Ground for Relief his habeas petition, Gapen alleges that his rights during the trial and sentencing phases of his capital trial under the Sixth, Eighth and Fourteenth Amendments were violated when jurors engaged in several instances of impermissible conduct.

In order to develop these facts, Gapen requests the following discovery:

• Depositions of all members of the jury that tried, convicted and sentenced Larry Gapen, and members who served as alternates.

(Motion, Doc. No. 51, PageID 1062.) In the Reply in support of the Motion, counsel wrote "Gapen has alleged sufficient allegations of misconduct to give reason to believe that he may be able to prevail if the facts are fully developed through discovery." (Doc. No. 69, PageID 1294.) But what are those allegations? Gapen's counsel failed to state in the Reply what they might be, instead referring the Court to "Doc. No. 50, PageID 908-44." Document No. 50 is the 474-page Traverse in this case.

In his Objections, Gapen makes repeated statements of the nature of the alleged juror misconduct and references places in the record where those allegations may be found, including the Traverse, the First Amended Petition, Appendix Vol. 10 to the Return of Writ, and the Reply Memo. (Objections, Doc. No. 74, PageID 1328.) He then upbraids the Magistrate Judge for disregarding these aspects of his claim. Id. However, none of these references or the "aspects" of the claim which are asserted to appear in those references was ever made in the Motion for Discovery. Gapen's counsel appear to have treated the Motion as a mere dress rehearsal for the Objections.¹ That is an unacceptable abuse of the Magistrate Judge's role in this case. A motion for discovery should include all that the petitioner relies on, and not require the Court to search the record for support for the motion or-worse-sandbag the Magistrate Judge into deciding the motion on the basis of what is presented and then appeal on the basis of what was not presented.

What Evidence Supports this Request for Discovery?

Gapen also objects "[s]econd, the Magistrate Judge failed to consider crucial allegations supporting these claims, and then based his denial in part on their absence." (Objections, Doc. No. 74, PageID 1329.)

As to the evidence on this claim, the Magistrate Judge wrote:

Petitioner says "the scant record evidence currently demonstrates that [Juror] Nedostup had a Bible or Biblical materials in the jury room that he read and studied during breaks in the trial." (Reply, Doc. No. 50, PageID 914.) That evidence is from an Affidavit of Dorian Hall, a mitigation specialist with the Ohio Public Defender's Office who "was present during the conversation with Nedostup" conducted by post-conviction counsel. Id. at 910. Juror Nedostup refused to sign an affidavit himself confirming the accuracy of his reported comments. Id.

(Decision and Order, Doc. No. 71, PageID 1312.)

The Objections assert the Magistrate Judge should also have considered two additional affidavits from Assistant Ohio Public Defender Kathy Sandford (Objec...