Twyford v. Shoop

• Decision Date: 26 August 2021
• Docket Number: No. 20-3346,20-3346
• Citation: 11 F.4th 518
• Parties: Raymond A. TWYFORD, III, Petitioner-Appellee, v. Tim SHOOP, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

11 F.4th 518

Raymond A. TWYFORD, III, Petitioner-Appellee,

v.Tim SHOOP, Warden, Respondent-Appellant.

No. 20-3346

United States Court of Appeals, Sixth Circuit.

Argued: April 8, 2021

Decided and Filed: August 26, 2021

ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellee. ON BRIEF: Zachery P. Keller, Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, Alan C. Rossman, Sharon A. Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellee.

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which COLE, J., joined. BATCHELDER, J. (pp. 528–29), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge.

Tim Shoop, the warden of the Chillicothe Correctional Institution, appeals from the district court's order ("transport order") requiring the warden to transport Raymond Twyford, an Ohio death-row inmate, to The Ohio State University Wexner Medical Center, affiliated with the Ohio Department of Rehabilitation and Correction, for neurological imaging (a CT/FDG-PET scan) in support of his petition for a writ of habeas corpus. The district court issued the transport order under the All Writs Act, 28 U.S.C. § 1651, in aid of its jurisdiction over Twyford's habeas petition. For the following reasons, we hold that we have jurisdiction under the collateral-order doctrine to review the warden's appeal, and we AFFIRM the district court's transport order.

I. BACKGROUND

An Ohio jury convicted Twyford of aggravated murder and sentenced him to death in 1993.¹ In January 2003, Twyford filed a federal habeas petition raising twenty-two claims for relief. R. 13 (Pet. for Writ of Habeas Corpus) (Page ID #2–205). The district court stayed Twyford's case pending completion of litigation regarding his state application to reopen his direct appeal. R. 38 (12/30/04 Order) (Page ID #379–85). After the Ohio Supreme Court affirmed the denial of Twyford's application to reopen his direct appeal, State v. Twyford , 106 Ohio St.3d 176, 833 N.E.2d 289, 290 (2005), the district court returned Twyford's case to the active docket, see R. 49 (Oct. 2005 Status Rep.) (Page ID #408–09). In 2008, the Warden moved to dismiss some of Twyford's claims as procedurally defaulted. R. 78 (Warden's Mot. to Dismiss Procedurally Defaulted Claims) (Page ID #510–39). The district court granted the warden's motion in part. R. 93 (09/27/17 Order at 74) (Page ID #765).

This brings us to the subject of this appeal. In November 2018, Twyford requested leave to file ex parte and under seal a motion to transport for medical testing, R. 101 (Mot. for Leave to File Mot. to Transport Ex Parte ) (Page ID #6998–7003), which the district court denied in light of the need for transparency, R. 105 (03/15/19 Order at 3–4) (Page ID #7017–18). Twyford then filed a motion to transport for neurological imaging. Twyford noted that he may have neurological problems due to childhood physical abuse, alcohol and drug use, and a self-inflicted gunshot wound to his head from a suicide attempt at age thirteen, which cost him his right eye and left shrapnel remaining in his head. R. 106 (Mot. to Transport for Medical Testing at 3) (Page ID #7021). In support of the motion, Twyford submitted a letter from Dr. Douglas Scharre, a neurologist and the director of the Cognitive Neurology Division at The Ohio State University Wexner Medical Center ("OSU"), which stated that Dr. Scharre had evaluated Twyford, reviewed his medical records, and concluded that a CT scan

and an FDG-PET scan were necessary for him to evaluate Twyford fully. R. 106-2 (Letter from Dr. Scharre) (Page ID #7088). Twyford requested that the warden transport him to OSU for this imaging because the Chillicothe Correctional Institution, where Twyford is incarcerated, does not have the equipment to perform this imaging.² R. 106 (Mot. to Transport for Medical Testing at 4) (Page ID #7022). He submits that the neurological imaging is necessary for his case because:

[g]iven the issues in Mr. Twyford's petition relating to his family history, mental health issues, and the impact of his suicide attempt (see Claims for Relief Nos. 1 (Ineffective Assistance of Counsel), 4 (Involuntary and Coerced Statement), 6 (Competency to Stand Trial), 16 (Ineffective Assistance of Counsel at Mitigation), 17 (Ineffective Assistance of Expert), 18 (Denial of Right to Present Mitigation Evidence)), it is plausible that the testing to be administered is likely to reveal evidence in support of Mr. Twyford's claims. Additionally, this investigation could plausibly lead to the development of evidence and materials in support for any challenges to the Warden's claims of procedural default or exhaustion.

Id. at 8 (Page ID #7026).

The warden opposed this motion on two grounds. R. 107 (03/28/19 Warden's Opp. to Mot.) (Page ID #7089–94). First, the warden contended that the district court has jurisdiction under 28 U.S.C. § 2241 "to bring a prisoner to the place where the Court is convened in order to facilitate its adjudication of a 2254 action," but not to require that the state transport a prisoner to an outside medical facility. Id. at 1–3 (Page ID #7089–91). Second, the warden argued that Twyford was seeking new information that he did not present to the state courts and therefore Cullen v. Pinholster , 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), precluded the district court from considering the results of any resultant neurological imaging. Id. at 3–5 (Page ID #7091–93).

The district court granted Twyford's motion. R. 109 (03/19/20 Op. & Order) (Page ID #7102–09). The district court found that it had jurisdiction under the All Writs Act to order the warden to transport Twyford for neurological imaging because the results "may aide this Court in the exercise of its congressionally mandated habeas review." Id. at 6 (Page ID #7107). It concluded that it was not "in a position at this stage of the proceedings to make a determination as to whether or to what extent it would be precluded by Cullen v. Pinholster from considering any evidence in connection with Dr. Scharre's evaluation." Id. at 7–8 (Page ID #7108–09).

The warden timely appealed. R. 110 (Not. of Appeal) (Page ID #7110–11). The district court granted the warden's request for a stay pending our resolution of the warden's appeal. R. 114 (05/04/2020 Order) (Page ID #7123–24).

II. JURISDICTION

Before reaching the merits of the warden's appeal, we must first determine whether we have jurisdiction over the appeal. The warden argues that we should exercise jurisdiction over his interlocutory appeal either through the collateral-order doctrine or as a petition for a writ of mandamus. We conclude that the warden's appeal satisfies the collateral-order doctrine, so we need not address the warden's mandamus argument.

We have jurisdiction to review final decisions of the district courts, 28 U.S.C. § 1291, and a narrow class of interlocutory and collateral orders, 28 U.S.C. § 1292 ; Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To fall within the collateral-order doctrine, the decision (1) must be "conclusive"; (2) must "resolve important questions separate from the merits"; and (3) must be "effectively unreviewable on appeal from the final judgment in the underlying action." Swint v. Chambers Cnty. Comm'n , 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The Supreme Court has recognized that in cases where it has permitted an interlocutory appeal, "some particular value of a high order was marshaled in support of the interest in avoiding trial." Will v. Hallock , 546 U.S. 345, 352, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006).

The transport order satisfies all three conditions. First, the transport order conclusively determined that the State must transport Twyford to OSU for neurological imaging. Second, whether the district court has the authority to order the transport of Twyford to OSU is unrelated to the merits of Twyford's habeas petition but implicates important issues of state sovereignty and federalism. See Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 714, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that an order remanding on grounds of Burford abstention is an appealable collateral order because it "conclusively determines an issue that is separate from the merits, namely, the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism"). Third, the transport order would be effectively unreviewable if we were to wait until after the district court resolved Twyford's habeas petition. At that stage, the State will have already undertaken the burden, risk, and expense of transporting Twyford to OSU for neurological imaging. Our conclusion that we have appellate jurisdiction over the warden's appeal is consistent with other circuits that have considered transport orders. Jones v. Lilly , 37 F.3d 964, 965–66 (3d Cir. 1994) ; Jackson v. Vasquez , 1 F.3d 885, 887–88 (9th Cir. 1993) ; Ballard v. Spradley , 557 F.2d 476, 479 (5th Cir. 1977).

Twyford argues that the district court's transport order does not involve a disputed question. Rather, Twyford characterizes the transport order as "simply authoriz[ing] habeas counsel to conduct their own independent investigation of Mr. Twyford's case," which is "no more ‘disputed’ than an order appointing counsel under 18 U.S.C. § 3599(a)(2) or appointing an investigator under § 3599(f)." Twyford's Br. at 11. Twyford's portrayal of the district court's transport order, however, glosses over the federalism concerns implicated by the transport order. Twyford also contends that, if we were to take seriously the warden's argument that this...