Stopher v. Simpson
| Decision Date | 09 March 2017 |
| Docket Number | CIVIL ACTION NO. 3:08-CV-9-DJH-CHL |
| Parties | VINCENT C. STOPHER PETITIONER v. THOMAS L. SIMPSON RESPONDENT |
| Court | U.S. District Court — Western District of Kentucky |
[CAPITAL CASE]
Before the Court is Petitioner's motion for an evidentiary hearing on various claims raised in his petition. He asks for an evidentiary hearing regarding claims 2, 8-13, a part of claim 14, 15-20, and 22 (DN 115). In addition, Petitioner asks for a deposition of second-chair trial counsel and references possible evidence in the files undergoing in camera review. Respondent has filed his response (DN 121), and Petitioner has replied (DN 122). The matter being ripe, the Court will grant in part and deny in part Petitioner's motion for the following reasons.
Standard for granting evidentiary hearing
In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court explained the limits imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on the authority of federal courts to grant writs of habeas corpus to state prisoners. Pinholster, 563 U.S. at 181. One of those limits is that when a claim is "'adjudicated on the merits in State court proceedings,'" id. (quoting 28 U.S.C. § 2254(d)), habeas relief may be granted only if the state court's adjudication of the claim:
28 U.S.C. § 2254(d). The Supreme Court found that review under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 563 U.S. at 181.
However, "[i]f, after reviewing the . . . state court record, th[e] Court determines that any of the claims adjudicated by the state court were based on an unreasonable determination of the facts, § 2254(d) deference would not apply and new evidence can be considered." Caudill v. Conover, 871 F. Supp. 2d 639, 647 (E.D. Ky. 2012). In other words, if a claim was not decided on the merits, then Pinholster's limit on expanding the record is not a problem. However, the Court still must consider several factors before granting an evidentiary hearing.
First, the Court must consider whether Petitioner failed to develop the facts in state court. 28 U.S.C. § 2254(e)(2) (). Section 2254(e)(2)'s phrase "failed to develop" implies some "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has defined a petitioner's diligence as "a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend . . . upon whether those efforts could have been successful." Id. at 435. "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.
Second, even if Petitioner was diligent in attempting to develop the facts in state court, the decision of whether to hold an evidentiary hearing is within the discretion of this Court. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Supreme Court has instructed thereviewing court to "consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Id. at 474. "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. Additionally, "bald assertions and conclusory allegations [by the petitioner as to why he wants a hearing] do not provide sufficient grounds to warrant requiring . . . an evidentiary hearing." Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (internal quotation marks and citation omitted). In other words, even in death penalty cases, non-specific assertions or conclusory allegations will not carry the petitioner's burden to establish the necessity for an evidentiary hearing. Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003).
With these standards in mind, the Court now turns to the merits of Petitioner's motion.
This Court already provisionally decided that three of the claims which are included in Petitioner's motion for an evidentiary hearing have not been decided on the merits by the state court and were not procedurally defaulted - claims 8, 13, and 22. See DN 75. The Court sees no reason to alter its prior determination that these claims were not procedurally defaulted.
Because these three claims were not decided on the merits, Pinholster presents no bar to an evidentiary hearing in this Court. Moreover, Petitioner did not fail to develop the facts in state court. Petitioner filed a motion for evidentiary hearing in state-court post-conviction proceedings. State Court Record A1_2878-2910 (DN 80, #4). This request was denied. State Court Record A1_3137 (DN 80, #4). Petitioner appealed this denial to the Kentucky Supreme Court. State Court Record A1_911-12 (Pet'r's Post-Conviction Br., pp. 15-16, 50, DN 80, #10).The Kentucky Supreme Court affirmed. Stopher v. Commonwealth, No. 2005-SC-0371-MR, 2006 WL 3386641, at *7 (Ky. Nov. 22, 2006).
However, as explained above, before the Court may grant Petitioner's motion for evidentiary hearing, Petitioner still must demonstrate the necessity for such a hearing. Bowling, 344 F.3d at 512.
In claim 8, Petitioner argues that witness-for-the-prosecution Ernest Bishop lied at trial about not having received anything other than a transfer to Indiana for testifying against Petitioner and that, because the prosecutor for Petitioner's case and Bishop's case was the same, the prosecutor necessarily knew that Bishop had committed perjury. DN 40, pp. 87-88. His motion points out that in the trial court, Christopher Polk, Bishop's attorney, "testified in avowal that [Bishop's] six year plea bargain was contingent upon the detectives and the prosecutor being satisfied with Bishop's testimony." DN 115, p. 6. (citing Transcript of Evidence (TE) 2373, Sealed Avowal Tape, 2/9/98, 15:41:43).
An evidentiary hearing is not required on issues that can be resolved by reference to the state court record. Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (en banc). In making the determination of whether an evidentiary hearing is necessary, "courts focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim." Zimmerman v. Davis, 683 F. Supp. 2d 523, 532 (E.D. Mich. 2010) (internal quotation marks and citations omitted).
Petitioner's evidentiary-hearing motion does not explain what additional evidence he wants to present or what it would prove. He already placed into evidence in the state court Bishop's attorney's testimony that the six-year plea bargain Bishop received was contingentupon testimony against Petitioner. Because Petitioner has not shown how an evidentiary hearing in this Court would advance this claim, the motion as to this claim will be denied.
This claim is one of prosecutorial misconduct related to Commonwealth's witness Kevin Powell. Powell was called by the prosecution as a rebuttal witness. He testified that he ingested the same acid that Petitioner had and that it did not result in a "bad trip." On post-conviction, Powell signed an affidavit that at trial he was not asked the right question to elicit the truthful response that both he and Petitioner were extremely "high" from the acid. Powell testified at trial that he got nothing for his testimony. TE 1947. However, on post-conviction, Powell's ex-cellmate stated that Powell had told him that Powell avoided prosecution and even got paid to testify against Petitioner. DN 115, p. 18 (citing Appendix (Apx.) I 2915, Post-Conviction (PC) Exh. 12). On post-conviction, Petitioner argued that Powell, who was on parole, avoided a felony gun charge three months after Petitioner shot Deputy Hans. On post-conviction, defense counsel attempted to speak to Powell's parole officer about the circumstances of the parole revocation. Although it is not entirely clear from the motion, Petitioner presumably wants to call Powell's parole officer who refused to speak to Petitioner's post-conviction counsel about the circumstances of Powell's parole revocation without an attorney present.
Petitioner also states that the following would be helpful to his case if such exists in the in camera documents: any notes of interviews with or about Powell or any indication that the prosecution knew about Powell prior to trial (because Powell was supposedly a late-known witness). Petitioner also points to, as an example, possible notes of interviews with Powell's cousin Selesia Hamilton in the in camera documents which might pertain to this claim. Finally, Petitioner points out that, if the prosecution had records in its files pertaining to Powell's non-arrest or his parole revocation, such records should have been turned over to defense counsel. The Court's review of the in camera documents does not reveal any documents fitting these descriptions.
Upon consideration, the Court will grant Petitioner's request for a hearing pertaining to claim 13 to call Powell's parole officer as a witness.
In claim 22, Petitioner alleges ineffective assistance of trial counsel because counsel did not...
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