Stewart v. Erwin

• Decision Date: 09 October 2007
• Docket Number: No. 05-4635.,05-4635.
• Citation: 503 F.3d 488
• Parties: Dale STEWART, Petitioner-Appellant, v. James L. ERWIN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

503 F.3d 488

Dale STEWART, Petitioner-Appellant, v. James L. ERWIN, Respondent-Appellee.

No. 05-4635.

United States Court of Appeals, Sixth Circuit.

Argued: July 24, 2007.

Decided and Filed: October 9, 2007.

ARGUED: Christopher J. Pagan, Repper, Powers & Pagan, Middletown, Ohio, for Appellant. Mark Joseph Zemba, Office of the Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: Christopher J. Pagan, Repper, Powers & Pagan, Middletown, Ohio, for Appellant. Mark Joseph Zemba, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before: BATCHELDER and DAUGHTREY, Circuit Judges; ROSEN, District Judge.^*

OPINION

ROSEN, District Judge.

I. INTRODUCTION

Petitioner/Appellant Dale Stewart appeals from an order of the United States District Court for the Southern District of Ohio denying his petition for a writ of habeas corpus. In September of 2000, Stewart pled guilty in an Ohio state court to two counts of sexual battery, and he was sentenced in October of 2000 to consecutive four-year terms on each count, for a total of eight years' imprisonment. After an initial appeal resulted in a remand to the trial court for resentencing, Stewart served a subpoena upon the Butler County Probation Department that sought the production of, among other items, the victim impact statements that the trial court had considered at his original sentencing hearing. The trial judge granted the State's motion to quash this subpoena, and neither Stewart nor his counsel has ever been allowed to review the victim impact statements. Stewart then was resentenced in August of 2001 to the same two consecutive four-year terms of imprisonment.

After exhausting his state remedies, Stewart filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254, alleging, inter alia, that he was denied due process of law because he was not given the opportunity to review, rebut, and explain the entire body of information that the sentencing court relied upon to justify its imposition of an eight-year prison term. The district court denied the habeas petition but, on the same day, granted Stewart's motion to expand the habeas record and ordered the State of Ohio to file, under seal, the presentence report and victim impact statements from Stewart's case. The custodian of these documents has thus far refused to comply with the district court's order, and these documents do not appear in the record on appeal. The district court also subsequently granted a certificate of appealability as to Stewart's due process challenge, and this is the sole claim presently before us.

As explained below, we agree with the district court that there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant's sentence. Nonetheless, we recognize, as did the court below, that there is a clearly established federal due process protection against a trial court's reliance on materially false information at sentencing. Unlike the district court, we find ourselves unable to ascertain whether this latter sort of due process violation might have occurred here, where a portion of the materials used in determining Stewart's sentence has been withheld from federal court review, and where the limited record before us suggests a reasonable possibility that at least some of this sentencing information might have been erroneous. Consequently, we reverse the district court's order denying Stewart's petition for a writ of habeas corpus and remand for additional proceedings, with further instructions that the writ should be granted if the State fails to supplement the record as ordered by the district court within forty-five (45) days of the date of this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On August 15, 2000, the prosecuting attorney for Butler County, Ohio, filed a bill of information charging Petitioner/Appellant Dale Stewart with two counts of sexual battery in violation of Ohio Rev.Code § 2907.03(A)(9). At his arraignment on September 28, 2000, Stewart pled guilty to both counts. The trial court sentenced Stewart to consecutive terms of four years' imprisonment on each count, fined him $10,000, and adjudged him a sexually-oriented offender. Stewart appealed, and the Ohio Court of Appeals remanded the case for resentencing upon finding that the trial court had failed to specify the basis for a sentence greater than the statutory minimum.

Before resentencing, Stewart subpoenaed the Butler County Probation Department to provide him with a number of materials, including the victim impact statements that the trial court had reviewed and considered at his initial sentencing. The trial court granted the State's motion to quash the subpoena and, on August 16, 2001, resentenced Stewart to the same eight-year term it had originally imposed.

On August 12, 2002, the Ohio Court of Appeals affirmed this sentence. In so ruling, the court rejected as "speculative" and "not supported by the record" Stewart's contention that the trial court had impermissibly "rel[ied] upon the secret information contained in the victim impact statements." State v. Stewart, 149 Ohio App.3d 1, 775 N.E.2d 563, 567 (2002). Instead, the state appellate court stated that it had reviewed the record — including the presentence report ("PSI"), psychological evaluations, and victim impact statements — and found that, while the trial court had considered the victim impact statements, "the facts ultimately relied on by the trial court in sentencing [Stewart] were otherwise reflected in the psychological evaluations and the PSI." Id. Because Stewart and his counsel had been given access to these latter materials, the Ohio Court of Appeals concluded that the trial court had not "abuse[d] its discretion in denying [Stewart] access to the victim impact statements." Id. Although Stewart's challenge rested in part upon federal due process grounds, the state appellate court did not discuss the United States Supreme Court and federal appellate decisions that Stewart cited in support of this claim, but instead stated in cursory fashion (and with citation only to Ohio court rulings) that "we find no violation of due process." Id. at 565. On January 15, 2003, the Supreme Court of Ohio dismissed Stewart's appeal as not involving any substantial constitutional question.

After unsuccessfully seeking post-conviction relief in the state courts, Stewart commenced this federal habeas proceeding on March 23, 2003, filing a petition under 28 U.S.C. § 2254 in the United States District Court for the Southern District of Ohio. In an opinion filed on November 4, 2005, the district court adopted a magistrate judge's report and recommendation that Stewart's petition be denied, but issued a certificate of appealability as to Stewart's due process claim. The district court also granted Stewart's motion to expand the habeas record, ordering the State of Ohio to file, under seal, the PSI and victim impact statements that had been included in the record on Stewart's direct appeal to the Ohio Court of Appeals. Regrettably, the custodian of these materials — who, we were informed at oral argument, is the trial judge who presided over Stewart's sentencing — has thus far refused to comply with the district court's order and, as a result, these items are not contained in the record on appeal.

III. ANALYSIS

A. The Standards Governing Federal Habeas Review of Stewart's Due Process Challenge

As a general matter, we "review[] a district court's decision regarding a writ of habeas corpus de novo." Ege v. Yukins, 485 F.3d 364, 371 (6th Cir.2007). "Factual findings made by the district court are reviewed for clear error unless the factual determinations are made based on state court documents," in which case "the factual findings are reviewed de novo." Id.

Because the federal habeas petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), the provisions of AEDPA govern here. See Hicks v. Straub, 377 F.3d 538, 551 (6th Cir.2004), cert. denied, 544 U.S. 928, 125 S.Ct. 1653, 161 L.Ed.2d 490 (2005). In particular, the controlling AEDPA provision states:

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.

28 U.S.C. § 2254(d).

"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000)); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. at 1523); see also Bell, 535 U.S. at 694, 122...