The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TYLER SETH DUSTIN PAYNE, ) CASE NO. 1:18CV302
)
Petitioner, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. )
)
BRIGHAM SLOAN, Warden, ) ORDER AND OPINION
)
Respondent. )
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court on Petitioner Tyler Payne’s Objections to certain
evidentiary and pretrial orders made by Magistrate Judge Thomas Parker. (Doc. 27). For the
foregoing reasons, the Court GRANTS, in part, Petitioner’s Objections.
BACKGROUND FACTS
The following are the relevant facts to Petitioner’s current objections. On February 7,
2018, Petitioner filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. (Doc. 1).
Petitioner asserted five grounds for relief. Pursuant to Local Rule 72.2, the Court referred the
matter to Magistrate Judge Parker for pretrial monitoring and a Report and Recommendation.
(Doc. 5).
The parties moved forward with pretrial briefing before the Magistrate Judge. On
November 13, 2018, Petitioner filed his first Motion to Expand the Record under Rule 7 of the
Rule Governing § 2254 Cases. (Doc. 18). Petitioner sought to expand the Record with eleven
separate items. Petitioner also asked the Court to appoint counsel for the proceeding. (Doc. 19).
Respondent filed his Opposition to Petitioner’s Motion to Expand on January 18, 2019. (Doc.
24).
On February 26, 2019, the Magistrate Judge granted, in part, Petitioner’s Motion to
Expand the Record. (Doc. 25). Relevant for the current Order, the Magistrate Judge allowed an
expansion of the Record regarding Items One, Two and Ten. The Magistrate Judge denied
expansion of the Record regarding Items Three through Nine and Item Eleven. The Magistrate
Judge also denied Petitioner’s request for counsel.
On March 25, 2019, Petitioner’s objection to the Magistrate Judge’s Order was docketed.
(Doc. 27).1 In his Objection, Petitioner claimed the Magistrate Judge was incorrect in denying
the Motion to Expand the Record pertaining to Items Three through Nine and Item Eleven.
Petitioner also objected to the Magistrate Judge’s denial of his request for counsel and the
timeline established for filing his Traverse.
After Petitioner filed his Objection, the case proceeded forward. Respondent complied
with the Magistrate Judge’s Order and supplemented the Record. (Docs. 28, 30). Thereafter, the
Magistrate Judge issued an Order requiring Petitioner to file a Traverse on or before December
23, 2019. (Non-Doc. Entry, 11/21/2019). Petitioner objected to this Order. (Doc. 32). In his
Objection, Petitioner reiterated his previous objections and asked this Court to issue a ruling on
his Objections prior to filing a Traverse.2
STANDARD OF REVIEW
When a magistrate judge makes a ruling on a non-dispositive matter, the Federal Rules of
Civil Procedure and this Court’s Local Rules allow any party to appeal that decision. FED. R.
1 On March 11, 2019, Petitioner moved for an extension of time to file objections to the Magistrate Judge’s February
26, 2019 Order. (Doc. 26). The Court did not rule on Defendant’s Motion before Petitioner filed his Statement of
Appeal and Objections to the Order two weeks later. According, Defendant’s Motion for an Extension to Object is
MOOT and therefore DENIED.
2 Shortly after filing this Objection, Petitioner filed a Second Motion to Expand the Record (Doc. 33), his Traverse
(Doc. 34) and a Notice that he filed his Traverse “in an abundance of caution” in light of his objections to the
Magistrate Judge’s Orders (Doc. 35). The Magistrate Judge granted Petitioner’s Second Motion to Expand. (Doc.
36).
CIV. PRO. 72(a); Loc. R. 72.3(a). In review of such non-dispositive decisions, the district court
can modify or set aside any part of the order that is clearly erroneous or contrary to law. FED. R.
CIV. PRO. 72(a); Loc. R. 72.3(a).
ANALYSIS
A. Motion to Expand the Record – Items Three through Nine
The Magistrate Judge denied in part Petitioner’s Motion to Expand the Record. The
Magistrate Judge determined that Items Three through Nine sought discovery from third parties,
including documents and depositions that were not presented before the state court. Moreover,
the Magistrate Judge determined Petitioner was conclusory in his claims that the requested items
established good cause to grant leave to expand the Record.
In challenging this decision, Petitioner argues the Magistrate Judge’s legal analysis was
insufficient. Petitioner alleges the Magistrate was conclusory in his denial and failed to address
the merits of each individual request. According to Petitioner, a court must look at each
individual ground for relief, apply the requested information to that ground and decide if the
requested information would entitle the petitioner to relief.
The Court determines that the Magistrate Judge’s decision was not clearly erroneous or
contrary to law. First, the Magistrate Judge correctly laid out the appropriate law regarding Rule
7 expansion of the record. There is a delicate dichotomy in accepting new evidence not before
the state court. Moore v. Mitchell, 708 F.3d 760, 780-84 (6th Cir. 2013). Items Four through
Nine3 do not exist and would have to be created. Petitioner is fighting an uphill battle to have the
Court and its limited resources go towards creating those Items.
3 Items Four and Six assume an audio recording of a phone call between Petitioner and counsel exist. Petitioner has
not made clear that this evidence does in fact exist.
Moreover, Items Three through Nine all go towards the underlying issue of the
correctness of the trial transcript. While Petitioner seeks certain evidence to establish the
ineffective assistance of his counsel, there is simply no prejudice if the underlying transcript is
accurate. And there is ample evidence in the Record—as well as evidence that the Magistrate
Judge allowed to be included (Item Two, the audio/video recording of the State trial)—that goes
towards the correctness of the trial transcript issue. For example, Item Eight is duplicative as the
Record contains an Affidavit of Ms. Jimenez’s recollection about what occurred in the courtroom
at the contested time. (See Doc. 12-1, PageID: 348).
Accordingly, the Court agrees with the Magistrate Judge and determines that Petitioner is
not entitled to the expansion of the Record with Items Three through Nine.
B. Motion to Expand the Record – Item Eleven
The Court agrees with Petitioner and overrules the Magistrate Judge’s decision with
respect to Item Eleven. The Magistrate Judge determined Petitioner’s request in Item Eleven
was moot because it was already included in the Record filed by Respondent. Petitioner argues
that the documents the Magistrate Judge flagged were ruled on by the appellate court while
Petitioner sought the documents filed with the trial court. (Doc. 27, PageID: 1286).
From the Court’s review, it appears Petitioner filed the same document in both the trial
and appellate courts. (See Doc. 12-1, PageIDs: 565-66 (trial court docket); 575-76 (appellate
court docket)). Each court reached a determination on the document, albeit on different days—
the trial court reached its determination on or about December 30, 2015 and the appellate court
reached its determination on or about January 4, 2016. The Record contains the appellate court’s
determination. (See id., PageID: 352). But it appears that the trial court’s separate decision is
not included within the Record. Therefore, Petitioner’s Motion to Expand the Record to include
the trial court’s decision is granted.
C. Motion to Appoint Counsel
The Magistrate Judge denied Petitioner’s second request for the appointment of counsel.
The Magistrate Judge based his decision on the fact that appointment was not mandatory under
the Rules and that Petitioner did not put forth an exceptional circumstance to warrant the
appointment of counsel. Petitioner objects, arguing his Motion to Expand had merits and that the
case presents extraordinary challenges with the procedures in the habeas context.
The Court determines that the Magistrate Judge’s decision was not clearly erroneous or
contrary to law. Like the Magistrate Judge, the Court understands the difficulties Petitioner faces
as a pro se litigant in this matter. However, Petitioner does not have an automatic right to
counsel in a habeas corpus proceeding. McClesky v. Zant, 499 U.S. 467, 495 (1991). Petitioner
concedes this point. Moreover, compliance with procedural rules does not qualify as an
exceptional circumstance as the Magistrate Judge rightly pointed out.
Accordingly, Petitioner’s objection is overruled.
D. Filing of the Traverse
Petitioner also objects to the Magistrate Judge’s timeline to file the Traverse. This
objection is moot however, as Petitioner has filed his Traverse “in an abundance of caution.”
(See Docs. 34 & 35).4
4 Additionally, Petitioner filed his Traverse almost eight months after the original timeline ordered by the Magistrate
Judge.
CONCLUSION
Petitioner’s Motion for an Extension of Time to Object (Doc. 26) is MOOT and therefore
DENIED. Petitioner’s Objection to the Magistrate’s decision (Doc. 27) is GRANTED in part, as
follows: Petitioner’s objection is OVERRULED with respect to Items Three through Nine;
SUSTAINED with respect to Item Eleven; OVERRULED with respect to his Motion to Appoint
Counsel; and MOOT with respect to the timeline for filing his Traverse. Respondent shall file
the requested document in Item Eleven within thirty days after the date of this Order.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
Dated: January 16, 2020