The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
FREDERICK A. MUNDT,
Petitioner, : Case No. 2:17-cv-773
- vs - District Judge Michael Barrett
Magistrate Judge Stephanie Bowman
CHARLOTTE JENKINS, Warden, Death Penalty Case
:
Respondent.
DECISION AND ORDER DENYING PETITIONER’S MOTIONS FOR
DISCOVERY AND TO EXPAND THE RECORD
This capital habeas corpus case is before the Court on Petitioner Frederick Mundt’s
Motions for Discovery (ECF No. 37) and to Expand the Record (ECF No. 38). The Warden
opposes Mundt’s motions (ECF Nos. 39 and 40, respectively), and Mundt has filed his replies
(ECF Nos. 41 and 42, respectively).
Mundt’s Motion for Discovery
A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-
specific showing of good cause and in the Court’s exercise of discretion. Rules Governing § 2254
Cases, Rule 6(a); Bracy v. Gramley, 520 U.S. 899, 904 (1997). “[T]he ‘broad discovery
provisions’ of the Federal Rules of Civil Procedure d[o] not apply in habeas proceedings.” Id.,
quoting Harris v. Nelson, 394 U.S. 286, 295 (1969). Under the All Writs Act, however, federal
court possess the power to “fashion appropriate modes of procedure,” including discovery, to
dispose of habeas petitions “as law and justice require.” 28 U.S.C. § 1651; Harris, supra, at 299-
300. When a petitioner “offers nothing more than vague musings on how . . . [the desired
discovery] might unfold,” a district court may correctly determine that he “fail[s] to satisfy the
‘good cause’ standard required to obtain habeas corpus discovery.” Stojetz v. Ishee, 892 F.3d 175,
207 (6th Cir. 2018), quoting Stojetz v. Ishee, No. 2:04-cv-263, 2014 WL 4775209 at *75 n.12 (S.D.
Ohio Sept. 24, 2014).
Mundt’s stated purpose for requesting discovery is to develop facts respecting his post-
conviction counsel’s alleged ineffectiveness caused by their failure to raise as error in post-
conviction his trial counsel’s alleged ineffective representation when they failed to obtain MRI
and PET scans of Mundt’s brain to diagnose his organic brain damage and explain its connection
to his criminal behavior. (Mtn. for Discovery, ECF No. 37, PageID 14647.) The underlying
ineffective assistance of trial counsel claim is the basis for Mundt’s second ground for relief in his
habeas petition. (Petition, ECF No. 18, PageID 14243-46.)
Although a claim of ineffective assistance of post-conviction counsel is not itself
cognizable in habeas corpus, 28 U.S.C. 2254(i),1 the Supreme Court has allowed that post-
conviction counsel’s ineffectiveness can excuse a procedural default in certain narrow
circumstances. In Martinez v. Ryan, 566 U.S. 1, 12 (2012), the Court set forth four requirements
a petitioner must meet for post-conviction counsel’s performance to excuse a procedural default:
1. He has a “substantial” claim of ineffective assistance of trial
counsel;
2. He had “no counsel or counsel . . . was ineffective” under
Strickland v. Washington, 466 U.S. 668 (1984), in his collateral-
review proceeding;
3. The collateral-review proceeding was the “initial” review of the
claim; and
1 “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section 2254.”
4. State law requires ineffective-assistance-of-trial-counsel claims
to be raised in the first instance in a collateral-review
proceeding.
. . .
The following year, . . . the Court extended the Martinez exception
by modifying the fourth requirement. . . . Trevino v. Thaler[, 569
U.S 413 (2013)] applied the Martinez framework to any state where
“by reason of its design and operation, [state procedure] makes it
highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal.” Id.
White v. Warden, 940 F.3d 270, 276 (6th Cir. 2019), quoting Martinez, 566 U.S at 9, 17; Trevino,
569 U.S. at 429. In White, the Sixth Circuit concluded that Trevino and its modification of
Martinez applies in Ohio, reasoning that Ohio recognizes the necessity of expanding the record in
in state post-conviction where a petitioner’s ineffective assistance of trial counsel claim relies on
evidence outside the trial record. White, 940 F.3d at 277.
On appeal from denial of his state post-conviction petition, the appellate court agreed with
the trial court, deciding that Mundt’s ineffective assistance of trial counsel claim respecting the
failure to request and present MRI and PET scan evidence at trial was barred by the doctrine of
res judicata, as it could have been presented on direct appeal. State v Mundt, 2016-Ohio-4802 at
¶ 23 (Ohio App. 7th Dist. June 30, 2016). Such a claim, however, inevitably depends upon evidence
not in the state court trial record to satisfy, or at least attempt to satisfy, the prejudice prong of an
ineffective assistance of trial counsel claim. When a state court’s reliance on its own rule of
procedural default is misplaced, federal habeas review is not precluded. White v. Mitchell, 431
F.3d 517, 527 (6th Cir. 2005), citing Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005); Greer v.
Mitchell, 264 F.3d 663, 675 (6th Cir. 2001). In Mundt’s case, the post-conviction trial and appellate
courts misapplied the state procedural rule by determining that Mundt’s ineffective assistance of
trial counsel claim should have been brought on direct appeal; the claim ineluctably relies upon
evidence outside the trial court record, that being the scans and testimonial analysis of their results.
Thus, post-conviction counsel properly brought the claim in the post-conviction proceedings,
supporting it with the MRI and PET scans and Dr. Gur’s report and testimony, and attempting to
support it with the report and testimony of Dr. Lehrer.
In the penalty phase of Mundt’s trial, he presented the testimony of Dr. Sandra McPherson,
a psychologist. Dr. McPherson interviewed Mundt, administered various psychological tests to
him, scored them, reviewed background material and, as relevant here, diagnosed him as follows
Axis III: History of a variety of complaints, some of which
may be indicative of stress or exacerbated by same
including fibromyalgia and low back pain. Seizure
disorder, R/O other organic damage impacting brain
function.
(Appendix to Return of Writ (“App’x to ROW”), ECF No. 7-21, PageID 5204.)
In his post-conviction proceedings, Mundt’s counsel faulted trial counsel for not requesting
MRI and PET scans based on Dr. McPherson’s Axis III notation, “R/O other organic damage
impacting brain function.” Defense counsel Andrew J. Warhola testified in the post-conviction
hearing that to him, “R/O” meant Dr. McPherson had ruled out other organic brain damage. (Post-
conviction Tr. (“PC Tr.”), ECF No. 8-17, PageID 13261.)
Post-conviction counsel requested funds for the scans on May 5, 2006 (App’x to ROW,
ECF No. 7-10, PageID 3266) and on October 1, 2010, nearly four and one-half years later, the
state court granted the request, id. at 3496. More than a year after that, and after the PET scan was
completed, the court again ordered that the MRI be conducted at the Ohio State University Medical
Center (“OSUMC”) “forthwith.”2 (App’x to ROW, ECF No. 7-11, PageID 3546.) Still later, in
January 2012, the court ordered another MRI to be performed at OSUMC because the first MRI
was performed elsewhere and the second was not clear enough to be of use. (App’x to ROW, ECF
No. 7-11, PageID 3558.) Additional delay was caused by the original medical doctor retained to
interpret the MRI prior to Dr. Gur’s application of his algorithm to the data taking an unexpected
leave of absence. Id. at PageID 3584. Dr. Gur’s report was dated December 14, 2012, and in it
he notes that Dr. William Yuh, M.D., reported his findings after review of the MRI on the day it
was performed, June 8, 2012. Id. at PageID 3700-01. So far, it is safe to say that no ineffective
assistance had been provided by Mundt’s post-conviction counsel as they diligently pursued
obtaining the MRI and PET scans, and little to none of the delay in obtaining funding or the scans
themselves is attributable to them. In fact, the greatest of delay is attributable to the state court,
which took more than four years to rule on Mundt’s motion for funds to conduct the scans.
After receiving Dr. Gur’s report, post-conviction counsel also engaged Dr. Douglas Lehrer
to interpret Dr. Gur’s report in a way that was less technical and and to put Dr. Gur’s report into
context with Mundt’s background. (PC Tr., ECF No. 8-17, PageID 13429.) Dr. Lehrer reviewed
documents relating to Mundt’s childhood, upbringing, medical and school records, and Dr. Gur’s
report. (App’x to ROW, ECF No. 7-12, PageID 3860-61.) Dr. Lehrer’s report is dated January
16, 2013, and Mundt asserts in his motion for discovery that it was served on the State the very
next day (Mtn. for Discovery, ECF No. 37, PageID 14653). Following the intervening weekend
and President’s Day holiday Mundt’s hearing began on Tuesday, January 22, 2013.
Mundt’s attorneys sought to introduce Dr. Lehrer’s report and testimony, but the State
2 In reviewing the post-conviction record, the Court is unable to determine when the first MRI was conducted, but it
is clear that there were three altogether; one at CMC, and two more at OSUMC. (PC Tr. ECF No. 8-17, PageID
13428.)
objected, and the trial court decided that “[u]nder the circumstances – this case has been
meandering forever and to spring an expert report two days, three days before the hearing I think
is unconscionable and we’re not going to hear from Dr. Lehrer. . . . Particularly in a case that
started in 2006.” (PC Tr., ECF No. 8-17, PageID 13430.)
Mundt seeks the following discovery:
1. Depositions of his post-conviction counsel Jennifer Prillo, Tyson Fleming,
Gregory Hoover, and
2. Deposition of his post-conviction legal expert Gregory Meyers.
(Mtn. for Discovery, ECF No. 37, PageID 14653-54.)
Mundt explains that deposing his post-conviction counsel would “clarify whether post-
conviction counsel had any professionally reasonable justification for not presenting Dr. Lehrer’s
testimony or report to the trial court . . . [and] why post-conviction counsel sought Dr. Lehrer’s
opinion—and the value that opinion would have had to the case that post-conviction counsel
wanted to put on for Mr. Mundt.” Id. at PageID 14653-54.
Most, if not all, of Mundt’s justification for requesting to depose his three post-conviction
counsel, however, was presented to the state court in the post-conviction proceedings. His trial
counsel explained to the court that Dr. Lehrer could not compose his report until he had an
opportunity to review Dr. Gur’s report. (PC Tr., ECF No. 8-17, PageID 13425-26.) In the
discussion between the parties and the court in the post-conviction hearing, it was noted that the
court had earlier ordered that any experts reviewing the scans file his or her report within thirty
days of the scan. Id. at PageID 13428. The only explanation for Dr. Gur’s failure to adhere to the
court’s order was the unexpected leave of absence of the medical doctor who was to interpret the
MRI, id. at PageID 13429, but as stated above, Dr. Yuh interpreted the MRI and wrote his report
on the same day the MRI was performed. Thus, the delay between Dr. Yuh’s report and Dr. Gur’s
is unexplained. Mundt’s counsel acknowledged that Dr. Lehrer is no more qualified to opine on
the scan results than Dr. Gur, and that they still intended to have Dr. Gur testify in addition to Dr.
Lehrer. (PC Tr., ECF No. 8-17, PageID 13430.) At that point, the state court excluded Dr. Lehrer’s
report and said he would not be testifying at the hearing. Id.
Mundt also seeks to depose attorney Gregory Meyers, who was called as his expert witness
in the post-conviction hearing to testify about prevailing professional norms in capital cases at the
time of Mundt’s trial. (Mtn. for Discovery, ECF No. 37, PageID 14654.) In fact, Meyers’
testimony was only proffered. (PC Tr., ECF No. 8-17, PageID 131 et seq.) “Proffered evidence”
is defined as “[e]vidence that is offered to the court to obtain a ruling on its admissibility.” Black’s
Law Dictionary (11th ed. 2019). This Court has found nothing in the record indicating Meyers’
testimony was admitted into evidence and Mundt does not allege that it was, nor does he contend
that the post-conviction court erred by excluding his proffered testimony. The post-conviction
state appellate court makes no mention of Meyers’ testimony or affidavits in its opinion.
Mundt states that “Meyers may have information pertinent to post-conviction counsels’
[sic] decision to retain Dr. Lehrer or post-conviction counsels’ [sic] failure to timely produce Dr.
Lehrer as a witness at the hearing.” (Mtn. for Discovery, ECF No. 37, PageID 14654.) In addition,
Mundt suggests Meyers “can also provide his insights into the prevailing professional norms in
place in Ohio at the time of the state hearing.” Id. As stated above, post-conviction counsel’s
reasons for engaging Dr. Lehrer and the untimely presentation of him as an expert witness are
apparent on the existing post-conviction record. Mundt fails to mention or even speculate as to
what additional information about that matter he hopes discovery would produce. As for “insights
into the prevailing professional norms,” post-conviction counsel stated that Meyers would explain
Ohio’s standards for attorneys to become certified by the Ohio Supreme Court as capital defense
counsel under the former Ohio Sup. R. 203 and materials presented at required seminars to obtain
and maintain certification. (PC Tr., ECF No. 8-17, PageID 13367.) In response, the judge asked,
“Okay. Well, does he have to tell me what those are? Aren’t they written down some place” id.
at PageID 13367, as indeed they were at the time, under Rule 20. Mundt’s counsel apparently saw
which way the wind was blowing before the judge ruled on whether to admit Meyers’ testimony
and requested that “at least Mr. Meyers be allowed to testify to insure that we have a complete
record.” Id. at PageID 13368. Thereafter, Meyers’ testimony was proffered. There are no juries
in post-conviction hearings in Ohio, so the “trier of fact” is the judge. Furthermore, this Court is
well aware of the American Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003), 31 Hof. L. Rev. 913. As such, it is
difficult to imagine how an attorney, even one as experienced and respected as Greg Meyers, could
“assist the trier of fact to understand the evidence or to determine a fact in issue.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)(emphasis supplied).
Mundt has not demonstrated that he had “no counsel or counsel . . . was ineffective” under
Strickland v. Washington, 466 U.S. 668 (1984), in his collateral-review proceeding.” White, 940
F.3d at 276. On the contrary, it appears that post-conviction counsel diligently tried to present the
MRI and PET scans of his brain and expert testimony to put them into context with Mundt’s crime.
True, they were late in providing Dr. Lehrer’s report to the prosecution, but Dr. Gur’s report, on
which Dr. Lehrer relied, was provided to defense counsel barely a month before the start of the
trial. Defense counsel could have asked for a continuance of the post-conviction hearing in order
to comply with the court’s order that expert reports be filed no less than thirty days before the trial,
but given the trial judge’s clearly expressed impatience and frustration with the post-conviction
3 The provisions governing the appointment of counsel that were formerly contained in Ohio Sup.R. 20 are now in the
Rules for the Appointment of Counsel in Capital Cases, Appt.Coun.R. 1-6, eff. February 1, 2015.
petition’s “meandering forever” in his court, it would have likely been denied. Mundt’s motion
for discovery is DENIED.
Mundt’s Motion to Expand the Record
In his motion to expand the record, Mundt seeks to add to the record Dr. McPherson’s
declaration dated June 1, 2018 (Petition, ECF No. 18, PageID 143339-40); three 2004 newspaper
articles about Brittany Hendrickson’s murder along with the declaration of Federal Public
Defender investigator Robert L. Watts, id. at PageID 14346-50; and the 42-page forensic
psychological and neuro-psychological evaluation by clinical neuropsychologist Diane M.
Mosnik, Ph.D., (ECF No. 38-1, PageID 14668-709). He asserts the materials are relevant to
resolve the following five of his ten habeas grounds for relief:
1. Trial counsel were ineffective for failing to discover Mr.
Mundt suffers from organic brain damage.
2. Trial counsel were ineffective for failing to procure an expert
who could testify about the causal connection between Mr.
Mundt's organic brain damage and the horrific criminal acts
he committed.
3. Due to Mr. Mundt’s serious and severe mental illness, his
death sentence violates the Eighth and Fourteenth
Amendments to the United States Constitution.
4. Trial counsel were ineffective for failing to investigate and
discover that Mr. Mundt was exposed toxins that likely
contributed to his organic brain damage, depriving him of
his right to a fair trial and sentencing determination in
violation of the Fifth, Sixth, Eighth, [and] Fourteenth
Amendments to the United States Constitution.
5. Mr. Mundt’s right to due process and a fair trial by an
impartial jury was violated by the trial court’s denial of a
motion for [a] change of venue due to pervasive prejudicial
pretrial publicity.
(ECF No. 38, PageID 14664-65.)
In addition to Dr. McPherson’s and Watts’ declarations and the newspaper articles attached
to Mundt’s petition and which he now seeks to add to the record, there appears a single page of a
transcript from an unidentified proceeding in which the witness is unidentified as well. (ECF No.
18, PageID 14351.) Mundt does not explain the relevance of that page in his motion to expand the
record, nor does he explain its significance to the grounds for relief noted above. Consequently,
this Court sees no reason to consider it further.
Mundt recognizes that in Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court
limited habeas courts’ ability to consider evidence that was not presented to the state courts. (ECF
No. 38, PageID 14661-62.) He states that Pinholster applies only to claims that the state court has
adjudicated on the merits or when the state court’s decision was objectively unreasonable. Id. at
PageID 14662.
The Warden argues as follows:
The jurisprudence in this District shows expansion of the record is
not appropriate because “this Court must evaluate the state court
decision on the basis of evidence the state court had before it, not
evidence added to the record after the case came to federal court.”
See Martin v. Warden, 2019 US. Dist. [LEXIS] 219009 at *4 (S[.]
D[.] O[hio Dec. 20, 2019)(]Merz, Magistrate Judge)(“The Supreme
Court has severely limited the evidence a district court can consider
in a habeas case, at least with respect to issues decided on the merits
by the state courts. Cullen v. Pinholster, 563 U.S. 170 (2011). If
the state courts have thus decided an issue, the district court cannot
hold an evidentiary hearing or expand the record to add more
evidence until and unless it has decided that the state court decision
is an objectively unreasonable application of clearly established
Supreme Court precedent or an unreasonable determination of the
facts on the basis of the evidence presented. 28 U.S.C. 2254(d)(1)
and (2).”)
. . .
Since Mundt seeks expansion of the record for the plainly improper
reason of adding material not considered by the state courts to
bolster his arguments attacking the merits of the state court
adjudications, the Court should overrule Mundt’s Doc. 38 Motion to
expand the record.
(ECF No. 40, PageID 14714-15.)
Mundt’s Reply to the Warden’s opposition to the motion to expand the record is perplexing
as all but one sentence of it reverts to arguing the issues that are the focus of his motion for
discovery, discussed above, to wit, the applicability of the Martinez/Trevino/White line of cases as
it pertains to post-conviction counsel’s alleged ineffectiveness. (ECF No. 42, PageID 14727-29.)
Thus, it adds little to Mundt’s motion to expand the record which does not mention Martinez,
Trevino, or White.
Assuming without considering the procedural status of the five claims Mundt seeks to
support with evidence he now asks to be supplemented to the record, and because “[t]he procedural
default defense is not before the Court for adjudication at this point in time, Elmore v. Warden,
No. 1:07-cv-776, 2019 WL 5704042 at *6 (S.D. Ohio Nov. 5, 2019), the Court denies Mundt’s
request without prejudice. Should the Court determine at a later date that some or all of the five
claims are procedurally defaulted, he may renew his motion to expand the record.
It is true that the Pinholster holding prohibits a federal habeas court from considering
evidence outside the state court record when reviewing state court merits decisions under 28 U.S.C.
§ 2254(d)(1). 563 U.S. at 181-82. The Sixth Circuit Court of Appeals has observed, however,
that “expansion of the record does not necessarily require that the district court consider that
evidence in evaluating the merits of the habeas claim’ . . . [but it] can assist the district court in
deciding other issues besides the merits of the claim.” Moore v. Mitchell, 708 F.3d 760, 784 (6th
Cir. 2013). But in his motion, Mundt argues only that “expansion of the record is proper because
these materials are ‘relevant to the determination of the merits of the petition,’” quoting Habeas
Rule 7(a). (ECF No. 38, PageID 14659 (emphasis added)). He suggests no other purpose for
wanting to expand the record.
Moore, in fact, was a case in which the State opposed all of Moore’s attempts at discovery,
but in which the parties ultimately filed a joint motion to expand the record with new evidence
obtained through discovery.4 Prior to Pinholster, the district court had permitted the record to be
supplemented with the new evidence, Moore v. Mitchell, 531 F.Supp.2d 845, 859 (S.D. Ohio Jan.
18, 2008). On appeal, the Sixth Circuit rejected the argument that the requirements of § 2254(d)(1)
could be waived either party, framing it as a jurisdictional matter imposed on federal courts by the
statute. The appellate court held that Pinholster prohibited expansion of the record regardless of
the parties’ joint motion. Moore, 708 F.3d at 784. Expanding the record when one party objects,
as in Mundt’s case, is irreconcilable with the Sixth Circuit’s holding in Moore, where the parties
agreed to supplement the record. “While allowing a petitioner to supplement an otherwise sparse
trial court record may be appealing, especially where he diligently sought to do so in state court,
the plain language of Pinholster . . . precludes it. Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th
Cir. 2013). Finally, “It would defy logic to preclude a petitioner from developing factual
information in an evidentiary hearing [under Pinholster], but allow her to introduce the same
factual information via discovery and expansion of the record.” Broom v. Bobby, No. 1:10-cv-
2058, 2018 WL 1621083 at * 4 (N.D. Ohio Apr. 4, 2018), quoting Caudill v. Conover, 871 F.
Supp. 2d 639, 646 (E.D. Ky. 2012).
As for Mundt’s first, second, fourth, and fifth claims upon which expansion of the record
is sought, his motion is DENIED pursuant to Pinholster and Moore.
Mundt also seeks to expand the record in support of his third claim in which he contends
4 The new evidence consisted of depositions of Moore’s trial attorneys, his mitigation specialist, his psychologist, as
well as others, and the files of the attorneys and the mitigation specialist. Moore, 708 F.3d at 779-80.
he is incompetent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). It is likely,
indeed certain, that Mundt will not have an execution date set for many years yet.5 Incompetent-
to-be-executed claims are not ripe until execution is imminent. Panetti v. Quarterman, 551 U.S.
930, 947 (2007); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998). Furthermore, “The
statutory bar on ‘second or successive’ applications [for a writ of habeas corpus] does not apply to
a Ford claim brought in an application filed when the claim is first ripe.” Panetti, 551 U.S. at 947.
Thus, the proper time for Mundt to bring his incompetent-to-be-executed claim will be when an
execution date is set in his case, or, because Ohio schedules executions years in advance, at a time
that provides the Court with ample time to consider his claim. Accordingly, his motion to expand
the record with materials supporting his third claim is DENIED without prejudice.
June 9, 2020. s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
5 Ohio currently has twenty-four executions scheduled between now and 2024. https://drc.ohio.gov/execution-
schedule (last viewed on June 9, 2020.).