United States District Court, W.D. Kentucky, Louisville Division
VINCENT C. STOPHER PETITIONER
THOMAS L. SIMPSON RESPONDENT
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Court Magistrate Judge
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.
for granting evidentiary hearing
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:
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;
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). 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.
“[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.
the Court must consider whether Petitioner failed to develop
the facts in state court. 28 U.S.C. § 2254(e)(2)
(“If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows [certain exceptions]”). 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.
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 the reviewing 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).
these standards in mind, the Court now turns to the merits of
of Petitioner's Motion for an Evidentiary Hearing
Claims 8, 13, and 22
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
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 A12878-2910 (DN 80, #4). This
request was denied. State Court Record A13137 (DN 80, #4).
Petitioner appealed this denial to the Kentucky Supreme
Court. State Court Record A1911-12 (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).
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.
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).
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).
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 contingent upon 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.