Hasan v. Ishee

• Decision Date: 15 February 2018
• Docket Number: Case No. 1:03-cv-288
• Parties: SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner, v. TODD ISHEE, Warden Respondent.
• Court: U.S. District Court — Southern District of Ohio

SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner, v. TODD ISHEE, Warden Respondent.

Case No. 1:03-cv-288

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

February 15, 2018

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

DECISION AND ORDER

This capital habeas corpus case, arising out of the 1993 prison riot at Southern Ohio Correctional Facility (Lucasville), is before the Court on Petitioner Siddique Abdullah Hasan's Motion to Amend, for Additional Discovery, an Evidentiary Hearing, or to Stay and Abey Proceedings to Allow Exhaustion of Newly Discovered Claim.¹ (ECF No.185.) The Warden has responded (ECF No. 188), and Hasan has filed his Reply (ECF No. 172)(see footnote 1) and a Notice of Additional Authority (ECF No. 173).

The Motions at issue are all non-dispositive pre-trial motions committed in the first instance to the decisional authority of an assigned Magistrate Judge.

PROCEDURAL HISTORY

State Court Proceedings

Hasan's proceedings in the state courts were summarized in this Court's August 14, 2006, Report and Recommendations (ECF No. 81, PageID 1061-63), as follows:

Direct Appeal

On April 22, 1997, Hasan filed his appellate brief in the Court of Appeals for Hamilton County, Ohio, advancing thirty assignments of error. Hasan's motion to strike the brief and appoint new counsel was denied by the court of appeals. A supplemental brief was filed by Hasan's counsel supplementing his fifth and eighth assignments of error and adding twelve new assignments of error on September 2, 1997, three days past the deadline set by the court of appeals. Moreover, Hasan was not provided with a copy of his trial transcript until September 18, 1997. None of Hasan's claims succeeded, and the court of appeals affirmed the trial court on May 1, 1998.

On September 15, 1998, Hasan filed his appellate brief in the Ohio Supreme Court claiming error in forty-four propositions of law. On January 5, 2000, lead counsel in Hasan's case, Chuck Stidham, was suspended from the practice of law for various ethical breaches committed in cases in which he was retained between 1994 and 1998, and for misrepresenting the nature and name of his law firm in violation of Ohio Disciplinary Rules 2-102(B) and (C). Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000). The Ohio Public Defender's Office was appointed to represent Hasan following Stidham's removal from the case, and a new briefing schedule was set.

On July 21, 2000, Hasan filed a superseding appellate brief advancing thirty-four propositions of law. The Supreme Court of Ohio rejected Hasan's claims of error, and affirmed the court of appeals on July 18, 2001. State v. Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90 (2001). A subsequent motion to reconsider wassimilarly rejected. On April 29, 2002, the United States Supreme Court denied Hasan's petition for a writ of certiorari.

Post-conviction

In the meantime, Hasan was also pursuing post-conviction relief in the state courts, filing his first petition for post-conviction relief in the Hamilton County Court of Common Pleas on July 23, 1997. The trial court denied each of Hasan's thirty-nine claims for relief and granted the State's motion to dismiss the petition on February 3, 1998. Hasan took an appeal to the Court of Appeals for Hamilton County, advancing twenty-five assignments of error. The court of appeals affirmed the dismissal, State v. Sanders, No. C-980154, 1999 WL 162146 (Ohio App. 1st Dist. Mar. 26, 1999), and no further appeal was taken in the Ohio Supreme Court.

A second petition for post-conviction relief was filed by Hasan on May 1, 2001, in which he alleged forty-two claims of error. On January 15, 2002, the trial court dismissed the second petition, concluding that Hasan had failed to satisfy the mandatory requirements of Ohio Rev. Code §§ 2953.23(A)(1) and (2). (Appendix, Vol. 6-C at 309.) Hasan's appeal was denied in the court of appeals, State v. Sanders, No. C020077, 2002 WL 31127540 (Ohio Ct.App. 1st Dist. Sept. 27, 2002), and the Ohio Supreme Court declined review, State v. Sanders, 98 Ohio St.3d 1423, 782 N.E.2d 78 (2003).

Application to Reopen Direct Appeal

Concurrent with his post-conviction proceedings, Hasan also pursued an Ohio R.App. Proc. 26(B) application to reopen his direct appeal on account of his appellate counsels' [sic] ineffectiveness, allegedly illustrated by their failure to raise as error twenty-four assignments of error. The court of appeals denied Hasan's application, and the Ohio Supreme Court affirmed and denied reconsideration.

Habeas Corpus Proceedings

On April 22, 2003, Hasan filed his Petition for a Writ of Habeas Corpus in this Court, raising thirty-five grounds for relief. (ECF No. 16.) Following Respondent's filing of the Return of Writ (ECF No. 17), Hasan moved for discovery and an evidentiary hearing (ECF No. 21). Oral arguments were held on the motion (ECF No. 36), which was subsequently granted in partas to the discovery requested, and denied without prejudice to its renewal within a specified time as to the request for an evidentiary hearing² (ECF No. 37). Hasan filed objections (ECF No. 39), which the district judge overruled (ECF No. 46). Reconsideration was sought, granted, and Hasan's objections were overruled again (ECF Nos. 48, 53 and 57, respectively). Hasan later filed a second motion for reconsideration (ECF No. 79), which was denied as moot following this Court's issuance of its Report and Recommendations (See ECF No. 81 and Notation Order dated August 29, 2006).

Hasan filed a second motion for discovery in April 2006 (ECF No. 72), which was also denied (ECF No. 75) then appealed (ECF No. 76); restated, expanded, and subsumed in Hasan's Additional Briefing Per Court's December 18, 2006, Order (ECF No. 110) following filing of this Court's Report and Recommendations (ECF No. 81); and finally granted in part on November 17, 2011 (ECF No. 139).

Shortly thereafter, the parties filed a joint motion to consolidate Hasan's case with that of Jason Robb, another Lucasville case, for purposes of discovery management. (ECF No. 141.) Explaining that the discovery in both cases involves the same facts, recognizing that the discovery materials sought in Hasan's case were similar if not identical to those in the Robb case, and noting that a third Lucasville defendant, James Were, had successfully sought to intervene in Robb to gain access to the discovery materials in that case, the Court granted consolidation of Hasan's and Robb's cases for the limited purpose of discovery. (ECF No. 142.) Upon completion of the granted discovery, Hasan filed the first version of the instant motion (ECF No. 166), later refiling it as ECF No. 185.

Hasan asserts that his fourth, eighth, ninth, and tenth habeas corpus grounds for reliefhave been strengthened as a result of the materials discovered in these proceedings. He also presents a new ground for relief, his thirty-sixth, based on the same discovery material, and asks that this Court stay his habeas petition to allow him to return to the state court to exhaust his new claim. Hasan moves to amend his petition to include the new evidence and claim, for additional discovery, and for an evidentiary hearing as well.

RELEVANT STANDARDS

Expansion of the Record

"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 (7^th Cir. 2001). Pursuant to the AEDPA, a prisoner may introduce new evidence in support of an evidentiary hearing or relief without an evidentiary hearing "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 Williams v. Taylor, 529 U.S. 420, 431-37 (2000).

The limitation in Cullen v. Pinholster, 563 U.S. 170 (2011), where the Supreme Court held that federal habeas review of state court merits determinations is limited to the record that was before the state court, applies to expansion of the record as well as to evidentiary hearings. Moore v. Mitchell, 708 F.3d 760, 780-784 (6^th Cir. 2013). Moore explained that

In any event, expansion of the record does not necessarily require that the district court consider that evidence in evaluating themerits of the habeas claim. Expansion of the record can assist the district court in deciding other issues besides the merits of the claim. . . . For example, it can sometimes be necessary to see if a petitioner has met the diligence requirement of § 2254(e)(2) for claims not adjudicated on the merits by the state court.

Moore, 708 F.3d at 784. This Court has very recently noted, however, that

A claim of actual innocence offered to excuse procedural default is not a substantive claim for habeas corpus relief, but a "gateway" claim and therefore not subject to the Pinholster restrictions." Pettus-Brown v. Warden, 2015 U.S. Dist. LEXIS 11884, *2, 2015 WL 422557 (S.D. Ohio [Feb. 2,] 2015). "Pinholster does not by its own terms apply to the actual innocence exception to either procedural default or the statute of limitations." Clemmons v. Warden, 2012 U.S. Dist. LEXIS 146029, *19, 2012 WL 4811122 (S.D. Ohio [Oct. 10,] 2012).

Ogle v. Mohr, No. 2:15-cv-776, 2017 WL 951489, *34 (S.D. Ohio Mar. 10, 2017)(Report and Recommendations). Thus, a petitioner's motion for an expansion of the record may avoid Pinholster's strictures under such circumstances.

Motion to Amend

The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 15, made applicable to habeas proceedings by § 2242, Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11,[³] allows pleading amendments with "leave of court" any time during a proceeding. See Fed. Rule Civ. Proc. 15(a). . . . Am

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