United States District Court, E.D. Kentucky, Central Division
OPINION & ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
moves to strike Robert Foley's § 2254 petition. DE
44; DE 29 (Amended Petition). As grounds, Hart alleges that the
filing “relies extensively” on
“improper” evidence not presented in Foley's
state proceedings. DE 44 at 7. Petitioner opposes the request
and notes that “new material supports only Claims I and
II.” DE 52 at n.1. For the following reasons and under
the applicable standards, the Court denies the motion.
12(f), in relevant part, authorizes courts to “strike
from a pleading . . . any redundant, immaterial, impertinent,
or scandalous matter.” Fed.R.Civ.P. 12(f); see
also Rules Governing § 2254 Cases, Rule 12. The
Sixth Circuit provides the analytical ground rules:
Motions to strike are viewed with disfavor and are not
frequently granted. Brown & Williamson Tobacco Corp.
v. United States, 201 F.2d 819, 822 (6th Cir. 1953);
Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977). The function of the motion is to “avoid the
expenditure of time and money that must arise from litigating
spurious issues by dispensing with” them early in the
case. Kennedy v. City of Cleveland, 797 F.2d 297,
305 (6th Cir. 1986) (quoting Sidney-Vinstein v. A.H.
Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)).
Operating Engineers Local 324 Health Care Plan v. G &
W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015).
Simply put, the strike movant faces a high bar. See Brown
& Williamson Tobacco Corp., 201 F.2d at 822
(“The motion to strike should be granted only when the
pleading to be stricken has no possible relation to the
theory generally proceeds as follows: (I) Foley's
Petition cites and tenders material not presented to any
state court, (II) evidence freshly “introduced in
federal court is irrelevant to § 2254(d)(1) review[,
]” and, thus, (III) the filing must be stricken.
Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011);
see DE 44 at 3-4. If Pinholster covered the
full panoply of § 2254 scenarios, the argument would be
compelling. See Fed. R. Civ. P. 12(f) (“The
court may strike” any “immaterial . . .
matter.”). Yet, Pinholster “precludes
consideration of evidence introduced in federal court
only when determining whether a state
court's adjudication of a claim involved an unreasonable
federal-law error” or determination of the facts.
Harris v. Haeberlin, 752 F.3d 1054, 1057 (6th Cir.
2014) (emphasis added); id. at n.1.
identifies (at least) two extra-Pinholster avenues
potentially allowing consideration of new evidence on §
2254 review. First, AEDPA-deference-as § 2254(d)
mandates and Pinholster addresses-is inapplicable if
a state court entirely ignores the merits of a properly
presented claim. See Van v. Jones, 475 F.3d 292, 293
(6th Cir. 2007) (“Where a claim on habeas appeal has
not been addressed by the state courts, federal courts review
it de novo.”). Though habeas claims that are properly
exempt from § 2254(d) may be rare,  they certainly
exist. See, e.g., Cone v. Bell, 129 S.Ct.
1769, 1784 (2009) (collecting cases). Such claims fall
outside AEDPA's deferential framework and, consequently,
the Pinholster limits on new-evidence consideration
are inapplicable. See, e.g., Han Tak Lee v.
Glunt, 667 F.3d 397, 405 (3d Cir. 2012). Additionally,
neither § 2254(d) nor Pinholster bars
consideration of new evidence after a court
finds that “a state court's adjudication of a claim
involved an unreasonable federal-law error.”
Harris, 752 F.3d at 1057. That is, a petitioner that
crosses the § 2254(d) threshold can, for purposes of
determining relief entitlement, potentially rely on fresh
upshot is that the Court can, under specific circumstances,
properly consider new evidence on § 2254 review. This
finding severs any link between Hart's
Pinholster theory and the Rule 12(f) stringent
predicates. The resulting disconnect dooms the motion.
clear, the Court is not deciding whether Foley has shown that
any of his claims properly skirt § 2254(d) deference or
satisfy its demanding requisites. Rather, the Court finds
that Respondent, as movant, failed to carry her burden to
show that the petition (wholly or in part) has “no
possible relation to the controversy.”
Brown & Williamson Tobacco Corp., 201 F.2d at
822 (emphasis added). Hart pegged her motion to alleged
wholesale irrelevance of federally-presented evidence. As
discussed, such proof is not categorically immaterial. The
Court, having rejected the sole relevant theory,
goes no farther.
Hart sought a disfavored remedy that carried a demanding
burden. Respondent's assault on Foley's new evidence,
at most, established the truism that the Court should exclude
such proof from any § 2254(d) review.
Yet, given the breadth and depth of potential habeas
analysis, that showing does not render all fresh evidence
“redundant, immaterial, impertinent, or
scandalous[.]” Fed.R.Civ.P. 12(f). Hart failed to
justify Rule 12(f) relief.
these reasons, the Court ORDERS as follows:
1. The Court DENIES DE 44; and
2. Consistent with the previously suspended briefing
schedule, DE 28, the Court SETS the
a. Respondent SHALL file an answer to DE 29
within 120 days of this Order; b. Petitioner
SHALL reply within 30 days
of Respondent's ...