United States District Court, E.D. Kentucky
DAVID L. BUNNING, District Judge.
This matter is before the Court on Petitioner Benny Lee Hodge's Objections (Doc. # 62) to Magistrate Judge Edward B. Atkins' Order of September 16, 2014 (Doc. # 61), in which he denied Hodge's request for discovery and an evidentiary hearing without prejudice. Judge Atkins reasoned that discovery would be an unhelpful exercise at this juncture because 28 U.S.C. § 2254(d) limits a federal habeas court's review to the record that was before the state court that adjudicated the claim on the merits. Thus, the Court would be unable to consider newly discovered evidence unless and until Hodge demonstrates, based on the record before the state court, that his claims are not subject to the limitations of § 2254(d). Judge Atkins reserved the right to reconsider Hodge's motion if and when he makes the required showing.
Although Hodge understands that he may be able to reassert his request at a later date, he nevertheless takes issue with "the threshold legal determinations made regarding the availability of factual development pre-AEDPA ruling." (Doc. # 62 at 2). The Warden having filed a timely Response (Doc. # 66) to Hodge's Objections, this matter is now ripe for the Court's consideration. For the reasons stated below, Hodge's Objections to Discovery and Evidentiary Hearing Order (Doc. # 62) be, and are, hereby overruled.
II. Standard of Review
A district court judge may refer non-dispositive pretrial matters to a magistrate judge for resolution. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Once the magistrate judge conducts the necessary proceedings and enters a written order stating the decision, "[a] party may serve and file objections to the order within fourteen (14) days after being served with a copy." Id. The district court will then consider those objections and, if necessary, "modify or set aside any part of the order that is clearly erroneous or is contrary to law. " Id. (emphasis added).
The "clearly erroneous" standard is not met simply because the reviewing court would not have come to the same conclusion, based on the evidence, that the lower court reached. Heights Cmty Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985). Rather, the key inquiry is "whether there is evidence in the record to support the lower court's finding, and whether its construction of that evidence is a reasonable one." Id. "A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id.
a. Application of Pinholster
In Cullen v. Pinholster, the Supreme Court granted certiorari to consider, inter alia, "whether review under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court." 131 S.Ct. 1388, 1398 (2011). The Court answered this question in the negative, reasoning that the language of § 2254(d)(1) "requires an examination of the state-court decision at the time it was made, " thus limiting the federal habeas court's review "to the record in existence at that same time i.e., the record before the state court." Id. Therefore, evidence introduced in a federal evidentiary hearing has no bearing on the federal habeas court's review of a claim adjudicated on the merits, unless the petitioner can "overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. at 1400.
The Court also rejected Pinholster's assertion that its holding would render § 2254(e)(2) superfluous. Id. This subsection, which "imposes a limitation on the discretion of federal habeas courts to take new evidence in an evidentiary hearing, " still has force where § 2254(d)(1) does not bar relief (i.e. claims that were not adjudicated on the merits in state court proceedings). Id. at 1400-01. "At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court." Id. at 1401.
In this case, Hodge requested discovery and an evidentiary hearing on the following eight claims: Claim 3 (denial of due process due to prosecutor's conflict of interest); Claim 5 (deprivation of the right to a fair and impartial trial due to jury tampering); Claims 7 and 9 (denial of due process and right to confront accusers due to the prosecutor's use of perjured testimony by jailhouse informant and suppression of exculpatory evidence); Claims 11 and 22 (denial of due process and right to confront accusers due to the prosecutor's use of perjured testimony by co-defendant and suppression of exculpatory evidence); and Claims 15 and 21 (deprivation of the right to effective assistance of counsel). Although the Court does not intend to delve into the merits of these claims at this time, a brief review of the record suggests that these claims have been presented to the Kentucky Supreme Court. See Epperson v. Commonwealth, 809 S.W.2d 835, 838 (Ky. 1990).
Given AEDPA's rebuttable presumption that claims presented to the state court have been "adjudicated on the merits, " Hodge's claims will likely be subject to the limitations of § 2254(d)(1). Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011); see also Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (extending this rebuttable presumption to instances where the state court rules against the defendant and issues an opinion that addresses some claims but does not expressly address the federal claims). That being the case, Judge Atkins reasoned that Pinholster would prohibit this Court from considering any new evidence introduced in a federal evidentiary hearing unless Hodge can overcome the limitations of § 2254(d)(1), either by showing that these claims have not been adjudicated on the merits or by demonstrating that the state court's adjudication on the merits resulted in a decision that was contrary to clearly established federal law.
Even if an evidentiary hearing was not yet warranted, Hodge argued that discovery would still be appropriate because Pinholster did not alter the "good cause" standard for discovery in federal habeas cases. See Rule 6 of the Rules Governing § 2254 Cases in the United States District Courts. While Hodge was technically correct in stating that Pinholster did not explicitly address the availability of discovery in cases subject to § 2254(d)(1) limitations, Judge Atkins saw no reason why its holding would not apply with equal force to new evidence obtained through discovery. After all, "[i]t would defy logic to preclude a petitioner from developing factual information in an evidentiary hearing, but allow him to introduce same factual information via discovery and expansion of the record." (Doc. # 61 at 8).
In his Objections, Hodge simply reasserts the same argument, stating that "the Supreme Court's decision in Pinholster [ ] does not alter the framework for discovery under Habeas Rule 6." (Doc. # 62 at 3). He fails to explain why Judge Atkins erred in reasoning that Pinholster would apply with equal force to discovery. Based on its own review of Pinholster, the Court finds Judge Atkins' opinion to be thorough, well-reasoned and supported by the evidence in the record. Without offering any new points ...