Rodriguez v. Zavaras, Civil Action No. 96-D-2559.
| Decision Date | 01 April 1999 |
| Docket Number | Civil Action No. 96-D-2559. |
| Parties | Frank D. RODRIGUEZ, Petitioner, v. Aristedes ZAVARAS, Executive Director of Colorado Department of Corrections, Respondent. |
| Court | U.S. District Court — District of Colorado |
David A. Lane, Miller, Lane & Killmer, L.L.P., Denver, CO, David Lindsey, Denver, CO, for petitioner.
Robert Petrusak, Paul Wolfe, Attorney General's Office, Denver, CO, for respondent.
ORDER DENYING EVIDENTIARY HEARING
THIS MATTER comes before the Court in connection with several pending motions in this case, including: (l) the Motion for an Order Allowing Petitioner to Take Depositions filed February 10, 1997; (ii) Respondent's Motion to Limit May 30, 1997 Proceeding to Oral Argument filed May 2, 1997; and (iii) the Motion in Limine re Testimony of Dr. Mark Cunningham. Each of these motions relates to new evidence that the Petitioner wishes the Court to consider in connection with the Petition for Writ of Habeas Corpus regarding the legality of Petitioner's death sentence. After a careful review of the issues raised by the motions, I find no merit to the motions.
The key issue here is whether an evidentiary hearing can be held and/or whether new evidence can be considered in connection with the Petition seeking relief under the Antiterrorism and Effective Death Penalty Act, ("AEDPA"). Petitioner takes the position that he is entitled to an evidentiary hearing on any factual matters that he was improperly precluded from developing during the state court trial regarding his ineffective assistance of counsel claim and/or his claim of state interference with the attorney-client relationship.
It is unclear precisely what evidence the Petitioner wishes to present. Obviously, he wants the Court to consider the testimony of a psychologist, Dr. Mark Cunningham, regarding various mitigating factors about Petitioner's background that he claims were not discovered by his trial counsel.1 He further seeks to take the depositions of his trial attorneys in the state proceeding, Robin Desmond and David Eisner, presumably to be offered as new evidence. Finally, it appears that he seeks to present other unspecified evidence of ineffective assistance of counsel that he claims the state district court judge disallowed in the postconviction review proceeding under Colo.R.Crim.P 35(c), including: (l) evidence that his attorney in the direct appeal provided ineffective assistance of counsel in failing to present a number of issues in the direct appeal because of the alleged unreasonable time constraints placed upon him by the Colorado Supreme Court; (ii) evidence regarding the deficient performance of his counsel at trial and in the Rule 35(c) proceeding; (iii) evidence of Petitioner's psychological condition and other potential mitigation evidence such as sexual abuse that was not discovered by trial counsel; and (iv) evidence discovered as a result of information Petitioner disclosed after trial.
Petitioner also argues that, in addition to the inability to present evidence in the postconviction proceeding, he was further inhibited in his ability to adequately develop the factual issues surrounding his claim of ineffective assistance of counsel by the State's premeditated course of conduct designed to obstruct his attorney's ability to represent Petitioner during his 35(c) proceedings. Presumably, he wishes to present evidence regarding these matters. Finally, Petitioner argues that the state court, not Petitioner, was at "fault" regarding the failure to develop evidence when the court failed to allow evidence and failed to authorize funds to retain a psychological expert. Petitioner asserts that despite his best efforts to present evidence of ineffective assistance of counsel, he was precluded from doing so by rulings of the state trial court. Thus, he argues that the state court's failure to give Petitioner a full and fair hearing in state postconviction mandates a de novo hearing before this Court.
I previously took the issue of whether to grant an evidentiary hearing under advisement in an Order dated May 20, 1997. There, I held that Petitioner's argument "may be broader than the type of evidentiary hearing authorized by the statute" and that I was "unconvinced that such testimony is appropriate under the controlling standard of review under the statute." Nonetheless, I allowed "expert testimony on the dysfunctional background of the Petitioner by Mark D. Cunningham, Ph.D. that is consistent with the opinions expressed in his report" subject, however, to Petitioner "convinc[ing] the Court that it properly can consider Dr. Cunningham's testimony under the scope of review mandated by § 2254." Further, I permitted Petitioner to argue at the May 30, 1997 hearing that additional evidence should be presented and stated that, if I concurred, "a further hearing day will be scheduled." Id., pp. 2-3. This Order thus represents my final ruling on these issues.
I first address the standard for obtaining an evidentiary hearing. First, I note that § 2254(d)(2) of the AEDPA precludes this Court from granting an application for a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim with respect 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". Id. Further, under § 2254(e)(1), the State is entitled to a presumption of correctness as to all factual determinations made by the Colorado courts which can only be rebutted by clear and convincing evidence.
An evidentiary hearing developing new evidence is only available in limited circumstances. Specifically, the AEDPA provides as follows on the subject of evidentiary hearings:
(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 —
(l) 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 reasonable diligence; and
Prior to enactment of the amendment, the standard as set by the Supreme Court was that "[a] habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Petitioner argues that the statute simply codified Keeney. Petitioner further argues that the statute allows this Court to inquire into both the procedures employed by the state court as well as the substance of that court's findings of fact.
However, the majority of courts that have considered the issue do not agree that the statute is a mere codification of Keeney. See Burris v. Parke, 948 F.Supp. 1310, 1325 (N.D.Ind.1996), aff'd, 116 F.3d 256 (7th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 462, 139 L.Ed.2d 395 (1997); Housel v. Thomas, No. 1:94-cv-1444-ODE, 1997 WL 67823 (N.D.Ga.1997). Instead, courts assert that the new amendment significantly "curtails the availability of evidentiary hearings to develop material facts." Porter v. Gramley, 112 F.3d 1308, 1316 (7th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998); Hunter v. Vasquez, No. C-90-3275 JW, 1996 WL 612484 at *2 (N.D.Cal.1996) ().
The Tenth Circuit in Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998) held that "`[t]he petitioner who seeks an evidentiary hearing in federal court must now clear the "initial hurdle" of § 2254(e)(2) before the court can proceed to determine whether an evidentiary hearing is otherwise proper or necessary.'" (quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.1998)). Further, the Tenth Circuit held that if a petitioner can clear this initial hurdle, he will be "entitled to receive an evidentiary hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief." Id. I find that under the foregoing authority, the right to an evidentiary hearing under the AEDPA is narrower than under the Keeney analysis. Thus, I must determine whether to conduct an evidentiary hearing under the new standard provided by the AEDPA.
I first address Petitioner's argument that he should be allowed to present mitigation evidence which was not discovered by trial counsel and which Petitioner disclosed after trial. He asserts that he should be allowed to present such evidence to this Court because he was not at fault in failing to develop this evidence under the first prong of § 2254(e)(2). Petitioner argues that § 2254(e)(2) does not apply, and an evidentiary hearing is warranted, because this section of the statute applies only when the petitioner "failed to develop the factual basis of a claim" in the state court.
The Tenth Circuit in Miller held that...
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