Skatzes v. Warden, Case No. 3:09-cv-289

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMagistrate Judge Michael R. Merz
PartiesGEORGE SKATZES, Petitioner, v. WARDEN, Mansfield Correctional Institution, Respondent.
Decision Date01 June 2017
Docket NumberCase No. 3:09-cv-289

WARDEN, Mansfield Correctional Institution, Respondent.

Case No. 3:09-cv-289


June 1, 2017

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz


This capital habeas corpus case is before the Court on Petitioner's Motion to Expand the Record (ECF No. 145) and Motion to Correct and Expand the Record (ECF No. 146). Additionally, the question of ripeness as to Skatzes' gateway claim of actual innocence as it pertains to the procedural posture of his First Ground for Relief, ineffective assistance of counsel (See Traverse, ECF No. 42), as well as his Memorandum on Gateway Innocence Argument for Discovery Documents Filed Under Seal are before the Court (ECF No. 96).

Each of the pending motions is a non-dispositive pre-trial motion which a Magistrate Judge has authority to decide in the first instance, subject to appeal to the presiding District Judge.

The Court had previously granted discovery and the parties entered into a stipulated protective order regarding sealing of the discovery (ECF Nos. 76, 81, 83, 104, 105, 108). Petitioner then briefed the applicability of the discovery documents with respect to his argument that, although this particular sub-claim was defaulted in state court, it fell under the miscarriage of

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justice exception, to which the Warden responded (Memo on Gateway Actual Innocence, ECF No. 96); (Response to Memo on Gateway Innocence, ECF No. 104). Status reports as to the ripeness of the gateway innocence argument have been submitted by both parties (ECF Nos. 114, 115, 116) Petitioner has argued that the case is not yet ripe as he may request additional discovery as developed through the deposition of trial counsel (ECF No. 114, PageID 21310). Petitioner's counsel planned to submit both the deposition transcripts as well as supporting confidential discovery documents used during the depositions, and the Court had previously granted him until September 30, 2014, to take the depositions and move to expand the record with the discovery as it related to his gateway innocence argument. Id., see also Order Granting Unopposed Motion to Continue Discovery until September 30, 2014, ECF No. 101. On September 30, 2014, Petitioner filed under seal a Motion to Expand the Record Under Habeas Rule 7, with discovery attachments (ECF Nos. 118, 119). This was denied for failure to comply with proper citation of record references, and Petitioner refiled (ECF Nos. 145, 146, 147). Respondent asserts that the case is not only ripe but that consideration of the discovery documents is precluded by Cullen v. Pinholster, 563 U.S. 170, (2011) (Warden's Status Report, ECF No. 115, PageID 21312)(see also Warden's Refiled Status Report, ECF No. 148, PageID 24197).


Skatzes wishes to expand the record with the following:

(1) The deposition transcript of trial counsel Robert Dixon with deposition exhibits;

(2) The deposition transcript of trial counsel Jeffry Kelleher with deposition exhibits;

(3) The affidavit of the post-conviction mitigation psychologist, Dr. Jeffrey Smalldon;

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(4) The set of records relied on by Dr. Smalldon and referenced by him during his review of the case;

(5) All exhibits attached to Skatzes's Gateway Innocence Memorandum that were filed with this Court under seal on January 21, 2014;

(6) Transcript excerpts from the trials of Jason Robb, Carlos Sanders (Hasan), and James Were that Skatzes relied on in his Traverse to support his gateway innocence argument;

(7) Transcript of Anthony Lavelle's polygraph examination taken on May 17, 1994, that Skatzes relied on in his Traverse to support his gateway innocence argument;

(8) Affidavits and declarations taken from Wayne Flannigan, Roy Donald, Greg Durkin, James Bell, and Leroy Elmore filed in other Lucasville cases, and relied on by Skatzes in his Traverse to argue gateway innocence;

(9) Transcript of a records deposition of Austin Stout, counsel for the Ohio Department of Rehabilitation and Corrections [hereafter, ODRC], with exhibit, taken in this habeas case on September 18, 2012, on the joint motion of the parties;

(10) Recording and transcript of post-trial statement made by Prosecutor Daniel Hogan, along with declaration of Derrick Jones who interviewed Hogan;

(11) Declaration of attorney Staughton Lynd, authenticating materials obtained from other Lucasville cases that Skatzes relied on [in] his Traverse;

(12) Affidavit of habeas counsel Vicki Werneke, explaining her review of trial counsel's file, and;

(13) Affidavit of habeas counsel Joseph Wilhelm, explaining his review of the trial counsel's files.

(Motion, ECF No. 146, PageID 24147.)

Skatzes asserts that the expansion is proper because these materials are "relevant to the determination of the merits of the petition." Id. at 24148. He argues that in terms of his ineffective assistance of counsel claims, his First, Third, Seventh, and Eleventh Grounds for Relief, he is entitled to expansion of the record and de novo review. Id. at 24154-6. He bases this

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on his belief that the Ohio Court of Appeals1 misapplied the procedural bar of res judicata to several of his sub-claims, completely failed to adjudicate others, and that the decision is contrary to an objectively unreasonable application of Supreme Court law under §§ 2254(d)(1). Id. at PageID 24156-8. Additionally, he argues that the expansion of the record is necessary in determining whether there is a basis for a miscarriage of justice claim to excuse the procedural default of sub-claim A in the First Ground for Relief. Id.

Respondent filed a Memorandum in Response to Petitioner's Gateway Innocence Argument on February 24, 2014 (ECF No. 104). The Warden primarily attacks Petitioner's position on the basis that the "newly offered evidence" is not new, but rather largely consists of arguments presented at trial, and as such is not sufficient to meet the actual innocence gateway of Schlup v. Delo, 513 U.S. 298, 324 (1995). Id. at PageID 21261-5. Later, in his status report, the Warden further raises the argument that under Cullen v. Pinholster, 563 U.S. 170 (2011), Petitioner is prohibited from presenting new material in federal court unless it falls under one of the exceptions (ECF No. 115, PageID 21312). Respondent argues,

Skatzes fails to present any argument as to what exception under Pinholster the additional discovery would be able to be considered by this Court. It is no longer in doubt that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.

Id. at PageID 21313.

Petitioner counters however that Pinholster is in effect only if the state court adjudicated the claims on the merits (Motion, ECF No. 146, PageID 24152, citing Pinholster and McClellan v. Rapelje, 703 F.3d 344, 351 (6th Cir. 2013)). If the state court's adjudication deserves no

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deference, as Skatzes is presently arguing, then the federal court may take new evidence. Id. at PageID 24153.

The Antiterrorism and Effective Death Penalty Act ("AEDPA") took effect on April 24, 1996. Skatzes filed his petition on April 5, 2010 (Doc. No. 25). As Skatzes' petition was submitted after the Act was signed it is subject to its provisions. 28 U.S.C. § 2254(d), as amended by the AEDPA, provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings 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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Any factual finding made by the state court is presumed to be correct and a petitioner must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e). A state court's decision is contrary to the Supreme Court's clearly established precedent if (1) the state court applies a rule that contradicts the governing law as set forth by the Supreme Court case law, or (2) the state court confronts a set of facts that is materially indistinguishable from those in

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a decision of the Supreme Court and nonetheless arrives at a result different from Supreme Court precedent. Terry Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court's decision involves an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal rule [from the Supreme Court] . . . but unreasonably applies it to the facts of the particular state prisoner's case," "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply,. . . [if the state court] unreasonably refuses to extend that principle to a new context where it should." Williams, 529 U.S. at 407-08.

In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a federal court's review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to "review of the state court record," and that evidence acquired through an evidentiary hearing may not be considered. Id. at 182.

In [Pinholster], the petitioner argued that his penalty phase attorney was ineffective because that attorney failed to

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