Lindsey v. Bradshaw

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARL LINDSEY,

Petitioner,

Case No. 1:03-cv-702

v. Judge Sarah D. Morrison

Magistrate Judge Elizabeth P. Deavers

WARDEN, Chillicothe Correctional

Institution

Respondent.

OPINION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s Motion to Alter or

Amend the Judgment and Alter or Make Additional Findings and to Reconsider Denial of

COA. (ECF No. 162.) Respondent filed a Memorandum in Opposition (ECF No. 166) and

Petitioner has replied. (ECF No. 170.) Also before the Court is Petitioner’s post-judgment

Motion for Leave to Amend his Petition to add five new claims for relief (ECF No. 163.), to

which Respondent filed a Memorandum in Opposition (ECF No. 167) and Petitioner has

replied. (ECF No. 171.) I. Introduction

After a trial by jury in Brown County, Ohio, Petitioner Carl Lindsey was convicted

and sentenced to death for the murder of Donald Ray “Whitey” Hoop. On October 10, 2003,

and after exhausting his state court remedies, Petitioner filed a Petition for Writ of Habeas

Corpus. On December 30, 2020 and following years of amendments to the Petition as well

as the withdrawal of certain claims, this Court issued an Opinion and Order denying relief

1

on Petitioner’s remaining claims and dismissing this action. (ECF No. 159.) Petitioner now

moves under Federal Civil Rule 59(e) to alter or amend the judgment. Petitioner contends

the Court erred in denying his claims and urges the Court to reconsider the denial of a

certificate of appealability as to each of his claims. Petitioner also makes a simultaneous

attempt to amend his habeas petition. Specifically, Petitioner seeks leave to file a Fourth

Amended Petition to add five new claims for relief, based on what he characterizes as

newly discovered evidence. Petitioner proposes to add Grounds Twenty-One and Twenty-

Two, arguing that newly discovered evidence indicates he has Fetal Alcohol Syndrome

Disorder (“FASD”) and he was denied the effective assistance of counsel based on trial

counsel’s failure to investigate whether Petitioner had FASD “despite the presence of red

flags.” (ECF No. 163, at PAGEID # 12471.) Petitioner also moves to add Grounds Twenty-

Three through Twenty-Five based on “newly developed evidence that Mr. Lindsey’s trial,

appellate, and post-conviction counsel rendered ineffective assistance by failing to timely

communicate multiple plea offers from the Brown County IPdrosecutor’s Office, and that Mr.

Lindsey’s death sentence is unconstitutional as a result.” ( . at PAGEID # 12471-72.) The

Court will address PetitioneIrI’s. Rmuoltei o5n9s( ien) tMuront.i on, ECF No. 162

Rule 59(e) of the Federal Rules of Civil Procedure “enables a Bdaisntirsitcetr c vo.u Drat vtois ‘rectify

its own mistakes in the period immWehditiea tve. lNy efwol lHowaminpgs’h iitrse d Deecpis’tio onf .E” mp’t Sec , 140

S.Ct. 1698, 1703 (2020) (quoting ., 455 U.S. 445,

450 (1982)). The motion is a “one-time effort to bring alleged errors iInd a just-issued

decision to a habeas court’s attention, before 2ta king a single appeal.” . at 1710. To grant a

motion filed under Rule 59(e), there must be “‘(1) a clear error of law; (2) newly

discovered evidenceC; l(a3r)k a vn. Uinntietrevde Sntiantge schange in controlling law; or (4) a need to prevent

manifest Linejiusustriec eC.a’”v iar, LLC v. U.S. Fish & ,W 7i6ld4l iFf.e3 Sde 6rv5.3, 661 (6th Cir. 2014)

(quoting , 616 F.3d 612, 615 (6th Cir. 2010)).

“[A] prisoner may invoke ... [R]ule [59(e)] only to request ‘reconsideration of matters

properly encompassed in the challenged judgment,’” and “Courts will not entertain

aBragnuimsteernts that could have been butW wheirtee not raised before the just-issued decision.”

, 140 S.Ct. at 1708 (quoting , 455 U.S. at 451). It is well settled that Rule 59(e)

sWhhoiuteldh enaodt bv.e B uosweedn to “reargue a case on the merits or to reargue issues already presented,”

Ha, 3w0k1in Fs. vA. pBpru’xc 4e84, 489 (6th Cir. 2008), or to “merely restyle or rehash

the initial issues.” , No. 3:20-cv-686, 2021 WL 2677684, *1 (W.D. Ky. June

29, 2021).

In his Rule 59(e) motion, Petitioner askBsr athdey Court to alter or amend the judgment

with respect to his Second Ground for Relief ( claim), Sub-claim 2 of his Fourth

Ground for Relief (coroner’s qualifications as an expert), and his Sixth Ground for Relief

(prosecutorial misconduct). (ECF No. 162, at PAGEID # 12367.) Petitioner urges the Court

to reconsider the denial of a Certificate of Appealability (“COA”) as to his Third Ground for

Relief (inconsistent theories of prosecution), certain sub-claims contained within his

Seventh Ground for Relief (exclusion of mitigating evidence), and his NinthI Gdround for

Relief (denial of post-conviction petition without discovery or an expert). ( . at 12368.)

HowardA vlt.h Uonuigtehd a S Rtautlees 59(e) motion is not an opportunity to effectively reargue a case,

, 533 F.3d 472, 475 (63th Cir. 2008), this is precisely what Petitioner

has done. Petitioner’s Rule 59(e) motion comprises One Hundred Four (104) pages and

mostly restyles and rehashes arguments set forth in prior briefing. Because it is not the

proper function of a Rule 59(e) motion to seek reconsideration of arguments already

considered and rejected, this Court will not address every argument Petitioner attempts to

reasserAt.. Second Ground for Relief: Brady Claim

With respect to his Second Ground for Relief, Petitioner argues the Court’s judgment

embodies a clear error of law, because the Court applied an incorrect, and moBrrea sdtyr ivn. gent

sMtaanrydlaarndd for assessing the materiality of evidence suppressed in violation of

, 373 U.S. 83 (1963). (ECF No. 162, at PBArGadEyID # 12387.) According to Petitioner,

“[t]o satisfy the materiality requirement under , a petitioner need only show that “the

likelihood oIfd a different rSemsuitlht ivs. gCraeinat enough to undermine confidence in the outcome of

the trial.’” ( .) (quoting , 565 U.S. 73, 75 (2012)). Petitioner argues the Court

improperly determined that the undisclosed impeachment evidence was cumulative, erred

by conducting a sufficiency of the evidence inquiry by considering the trial record asI da

whole, and failed to consider the totality of the undisclosed evidence cumulatively. ( . at

PAGEID # 12377-95.)

Brady In this Court’s prior Odpe innoiovno and Order, the Court determined that Petitioner’s

claim was entitled to review. (ECF No. 159, at PAGEID # 12321-22.) In

undertaking that task, the Court carefully considered Petitioner’s arguments that the State

failed to disclose impeachment material regarding State witness Kathy Kerr. That material

included an unsubstantiated allegation that th4e State paid Kerr for lost wages incurred due

to her testimony and provided Kerr hotel accommodations during the trial. The material

also included a letter from the Browtens tCimouonntiya lP rosecuting Attorney addressed to Kerr and

advising Kerr that she would have triiaml mteustnimityo.n Tyhe letter appears to represent a

limited agreement not to use Kerr’s truthful against her in any subsequent

proceedings.

In rejecting Petitioner’s claim, this Court applied the correct legal standard for

determining materiality: evidence is material only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceedKinygle ws vo.u Wldh hitalevye

been different. (ECF No. 159, at PAGEID # 12322, 12325, 12326) (citing ,

514 U.S. 419, 433-34 (1995)). The Court reviewed the entire trial record to determine

whether, in the absence of the impeachment material, Petitioner reKcyelievse vd. aW fhaiitrl etryial,

“understood as a trial resulting in a verdict worthy of confidence.” , 514 U.S.

419, 434 (1995). Although this inquiry necessarily involves a consideration of all relevant

evidence, this Court is mPhinildlifpusl vt.h Vaat lietn mtiunset not “conflate materiality with the sufficiency-of-

tKhyele-esvidence inquiry.” , 826 Fed. App’x 447, 460 (6th Cir. 2020) (citing

, 514 U.S. at 434-45).

Petitioner faults the Court for considering the complete trial record, including other

evidence corroborating Kerr’s testimony and linking Petitioner to the crime, as well as

defense counsel’s thorough cross-examination of Kerr, in making the materiality

dJaeltoewrmiecin va. tBiornad. Tshhaew undisclosed evidence at issue ina tsh aism ceansdee ids impeachment material. In

, 657 F.3d 293 (6th Cir. 2011), (Nov. 23, 2011), the Sixth

Circuit recognized the need to view the mater5ia lity of impeachment material in the context

of the entire trial:

Almost all of the undisclosed information iBdreandtiyfied by Jalowiec has potential

impeachment value; it is not directly exculpatory. Exculpatory evidence is not

inherently more valuable, because the Br amdayteriality prong is not a

sufficiency-of-the-evidence test, but there are relevant distinctions between

impeachment and exculpatory evidence for purposes. For instance,

“[w]here the undisclosed evidence merely furnishes an additional basis on

which to challenge a witness whose credibility has already been shown to be

qRuoebsintisoonna vb. lMe oilrls w, ho is subject to extensive attack by reason of other evidence,

the undisclosed evidence may be cumulative, and hence not material.”

592 F.3d 730, 736 (6th Cir. 2010) (internal quotation marks

omitted).

Brady

Defense counsel thoroughly cross-examined several of the prosecution

witnesses who are the subjects of impeachment evidence in this case.

Weaknesses and inconsistencies in the prosecution’s case were exposed. The

jury was well aware that most of the prosecution witnesses were not model

citizens and many were under the influence of intoxicants at the time of the

events they testified about. The undisclosed evidence Jalowiec relies on could

have been used to further impugn the credibility of some witnesses, but most

of the potentially impeaching evidence was of marginal significance. It could

hardly have been used to undermine the prosecution’s core showing of

Jalowiec’s guilt.

The ultimate question is whether there is a reasonable probability that the

disclosure of such evidence, cumulatively, would have put the whole case in

such a dUifnfeitreedn tS tlaigtehst va. sA gtou rus,ndermine confidence in the verdict. Evidence

withheld by the prosecution “must be evaluated in the context of the entire

record.” 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342

(1976)Id. .“If there is no reasonable doubt about guilt whether or not the

additional evi[de]nce is considered, there is no justification for a new

trial.” at 112–13, 96 S.Ct. 2392. Because the evidence as a whole reflects

that most of the trial witnesses were thoroughly and effectively cross-

examined, the undisclosed impeachment evidence would have been of

marginal value to Jalowiec. It follows that Jalowiec has failed to establish a

reasonable probability that the outcome of the case would have been different,

even if all the additional impeachment evidence had been disclosed to the

defense.

657 F.3d at 313. Brady

The crux of Petitioner’s claim in6v olves the purported grant of testimonial

immunity to witness Kerr. Without evidentiary support, Petitioner attempts to characterize

the testimonial immunity as a “reward” that “had been held out to [Kerr] in exchange for

her cooperation.” (ECF No. 162, at PAGEID # 12385-86.) This characterization overstates

the nature of any agreement between the prosecution and witness Kerr. Kerr did not

receive an obvious benefit from her testimony – there is no evidence that the State agreed

not to prosecute Kerr for any involvement in the murder. Rather, the prosecutor agreed not

to use her truthful trial testimony against her at any future proceedings. There is a

substantial difference between transactional immunity, where an individual is immune

from prosecution for a crime, and the testimonial immunity at issue here. Moreover, the

Sixth Circuit has instructed that any assessment of the impeachment value of an immunity

Jaaglroeweimecent must consider whether the witness provided self-incriminating testimony. In

, state’s witness Joann Fike testified that she loaned her car, which was

subsequently used in a murder, to her nephew who then loaned the car to Jalowiec. 657

F.3d at 309. Fike was granItded transactional immunity in exchange for her cooperation with

the murder investigation. . The Sixth Circuit agreed that the impeachment material

should have Bbreaedny disclosed to Jalowiec, but determined the evidence was not material for

purposes of . With respect to the grant of transactional immunity to Fike, the Sixth

Circuit held:

We also find no error in the district court’s determination that evidencBer tahdayt.

Fike was granted transactional immunity in exchange for her cooperation

with the investigation of Lally’s death was not material for purposes of

Again, the grant of immunity should havSee bee Mena rdsihsaclllo vs.e Hd,e bnudtr iicnkass,much as Fike

did not reveal any self-incriminating information, the impeachment value of

the immunity agreement was minimal. 307 F.3d 36,

56 (3d Cir. 2002) (recognizing7 that “the impeachment value of

the immunity agreement is inextricably tied to the self-incriminating evidence

that was provided after the immunity agreement was executed.”)

657 F.3d at 309. Jalowiec

Here, as in , the value of any purported grant of immunity was minimal, as

Kerr did not reveal self-incriminating evidence about the murder. To the extent she

admitted to testifying falsely and making prior inconsistent statements, the testimonial

immunity at issue did not definitively absolve her from future prosecution.

This Court also determined that Petitioner’s trial counsel subjected Kerr to lengthy

cross-examination at trial, establishing her history of making conflicting and untruthful

statements to both the investigators and the Grand Jury. Although the grant of limited,

testimonial immunity should have been disclosedA, kthraewrei ivs. Bnooo rkeearsonable probability of a

different result had the evidence been disclosed. , 572 F.3d 252, 262-63

(6th Cir. 2009) (disclosure of mutual agreement between witness and prosecution might

have smeea daels doeDfeanvsise v c. oGurnossesl’s cross-examination “more effective” but “only incrementally

so”); , No. 18-5406, 2018 WL 8138536 (6th Cir. Sept. 10. 2018) (no

entitlement to relief where petitioner “alleged, at most, that she had been deprived of

cumulative impeachment evidence”).

Finally, Petitioner contends the Court erred Kbyyl ceosnsidering the impeachment

material piecemeal, as opposed to cumulatively. In , the Supreme Court cautioned

against “dismissing particular items of evidence as immaterial anSde e[ ]a slusog gHeusgtihnbga tnhkast v .

cHuumdsuolnative materiality was not the touchstone.” 514 U.S. at 440.

, -- F. 4th --, 2021 WL 2521591, *5 (6th Cir. June 21, 2021) (“Importantly, a court

8

must consider the materiality of withheld evidence . . . only by evaluating the evidence

collectively not item by item.”) (internal quotations omittedB).r Hadoywever, this Court’s review

and discussion of each of Petitioner’s specific allegations of material does not equate

to piecemeal consideration of the evidence for the purpose of determining materiality. The

Court considered the immunity iBssraudey, which is consistent with Petitioner’s primary focus in

his briefing on this aspect of his claim. With respect to the allegations concerning the

State’s payment of lost wages, the Court determined Petitioner failed to point to any

evidence of record supporting that unsubstantiated allegation. As the Court noted,

Balrlaegdaytions thSaete a Hreil lm ve. Mreiltyc hceolnlclusory, or which are purely speculasteiev ea,l scoanHnuogth sbuapnpkosrt a

claim. , 842 F.3d 910, 933 (6thB Criard. y2016); , 2021

WL 2521591, at *5 (discounting certain allegations of material where petitioner “has

not demonstrated that the police withheld any evidence”). This Court reviewed all of the

arguments and evidence offered by Petitioner, and determined thenB, raasd iyt does now, that

Petitioner cannot satisfy the materiality component of a successful claim. The

undisclosed impeachment material, considered cumulatively, does not undermine

confidence in Petitioner’s trial or sentencing proceeding. The Court’s resolution of

Petitioner’s Second Ground for Relief did not involve a clear error of law, and reasonable

jurists wB.o uld nSoutb f-iCnlda tihme 2C oouf rtth’se rFeosoulrutthio Gnr oofu tnhdis fcolari Rme tloie bf:e C doerboantaebrl’se Qoru walriofincga.t io ns

Petitioner argues this Court erred by concluding he abandoned or withdrew sub-

claim 2 of his Fourth Ground for Relief, wherein he asserts a claim of trial court error for

overruling objections to the qualifications of t9h e Brown County Coroner, Timothy

McKinley, M.D. (ECF No. 162, at PAGEID # 12397.) In the Traverse, Petitioner stated the

allegations concerning the coroner’s qualifications were set forth in his Fifth Ground for

Relief, which he subsequently withdrew in its entirety. In his merits brief, filed after

withdrawing the Fifth Ground for Relief, Petitioner did not address sub-claim 2 of his

Fourth Ground for Relief. Petitioner now argues he nIedver withdrew or abandoned the sub-

claim, and this Court erred by failing to consider it. ( .)

Respondent argues this Court correctly determined that Petitioner withdrew sub-

claim 2, because Petitioner withdrew his Fifth Ground for Relief containing the factual basis

for the sub-claim, and also in light of Petitioner’s failure to reference the sub-claim in his

merits briefing. (ECF No. 166, at PAGEID # 12594.) Alternatively, Respondent argues the

sub-claim is defaulted, because Petitioner did not presenItd this claim of trial court error

regarding the coroner’s qualifications on direct appeal. ( .) Even if the claim is not

defaulted, Respondent argues, it is “patently meritless” because “[a] state court’s

evidentiary ruling warrants federal habeas relief only where the ruling ‘renders theI d

pcrioticnege dBirnogosm s ov .f Munitdcahmelelntally unfair as to deprive the petitioner of due process.’” ( .)

( , 441 F.3d 392, 406 (6th Cir. 2006)).

In his Reply, Petitioner argues this claim of trial court error for overruling

objections to Dr. McKinley’s qualifications is not defaulted. According to Petitioner, this

claim wasd per hoopresrly raised during his state post-conviction proceedings and supported with

evidence the record, in the form of transcripts of Dr. McKinley’s testimony at the

subsequent trial of Petitioner’s co-defendant, Joy Hoop. As support for this argument,

Petitioner directs the Court’s attention to thr1e0e paragraphs of his post-conviction petition,

wherein Dr. McKinley’s qualifications are discussed. (ECF No. 170, at PAGEID # 12625.)

Initially, a claim of trial court error for overruling a defense objection to the

qualifications of an expert witness seems to be a claim appearing on the face of the trial

record that should have been raised on direct appeal. The propriety of a trial court’s

evidentiary ruling is best judged in view of the evidence before the trial court at the time

the decision was made, not by supplementing the objection after the fact with argument

and evidence not raised during the trial. However, assuming such a claim could ever be

supported with evidence outside the trial record, this Court cannot conclude that Petitioner

actually raised a claim of trial court error regarding the coroner’s qualifications during his

post-conviction proceedings. This Court has reviewed the quoted paragraphs from

Petitioner’s post-conviction petition and notes that those paragraphs are contained as part

of the introductory paragraphs setting forth the Statement of Facts. (ECF No. 152-8, at

PAGEID # 7141-43, 7171). More specifically, the quoted paragraphs are set forth in Section

II(B)(2)(b) of the Statement of Facts and are part of the factual summation supporting

Petitioner’s separate claim of inconsistent theories of prosecution. The paragraphs

Petitioner cites are not part of any claims of trial court error, and certainly are not

contained within a freestanding claim challenging the trial court’s handling of objections to

the coroner’s qualifications.

It is well settled that for a claim to be properly pSreeese Nnitaend ,v b. Wotahr tdheen faNc.t uCaenl at.n Cdo rlerg. al

bInasstis of the claim must be presented to the state court. ,

., 994 F.3d 746, 751 (6th Cir. 2021) (“Fair presentation requires that the stcaittein cgo urts be

given the opportunity to see both the factual 1a1n d legal basis for each claim.”) (

Wagner v. Smith

, 581 F.3d 410, 414-15 (6th Cir. 2009)). Moreover, “the doctrine of

exhaustion requires that a claim be presenteWd itloli athmes svt.a Btea gcloeuyrts under the same theory in

which iSt eise laaltseorM pcrCeslaeinnt evd. K ienl lfyederal court.” , 380 F.3d 932, 969 (6th Cir.

2004). , 631 F. App’x 422, 439 (6th Cir. 2015) (“To constitute fair

presentation, the state courts must have had ‘a fair opportunity to apply controlling legal

principles to the facts bearing upon the petitioner’s constitutional claim,’ and it is not

sufficient merely ‘that all the facts necessary to support the federal claqimuo wtinegre A bnedfeorrseo tnh ve.

Hstaartele cssourts or that a somewhat similar state-law claim was made.’”) (

, 459 U.S. 4, 6 (1982)). Here, Petitioner did not fairly present his claim regarding the

qualifications of the coroner to the state courts as a claim of trial court error.

In sum, further review of sub-claim 2 of Petitioner’s Fourth Ground for Relief and

the state court record reveals that the claim, even if not abandoned, is not properly before

the Court for a consideration on the merits because it was not fairly presented to the state

courts and is procedurally defaulted.

Reasonable jurists would not debate whether the Court’s procedural ruling is

correct. Therefore, the Court declines to issue a certificate of appealability as to sub-claim 2

of PetitCio. ner’s SFioxuthrt Gh rGoruonudnd fo for rR Reelileieff:. P rosecutorial Misconduct

With respect to his Sixth Ground for Relief, Petitioner argues this Court committed a

clear error of law by failing to set forth controlling legal principles applicable to claims of

prosecutorial misconduct, and by failing to consider the cumulative effect of his allegations

of misconduct. According to Petitioner, “[t]he1 C2 ourt’s decision should be altered and

amended to remedy this error and to prevent a manifest injustice for failing to

meaningfully and cumulatively consider the prosecutor’s misconduct in the context of the

entire trial.” (ECF No. 162, at PAGEID # 12405.)

The scope of federal habeas corpus review of a claim of prosecutorial misconduct is

quite narrow. Prosecutorial misconduct forms the basis for habeas relief only if the conduct

was so egregious asD toon rneenlldye vr. tDheeC ehnrtisirtoe ftorrioal fundamentally unfair, based on the totality of

the circumstances. , 416 U.S. 637, 643-45 (1974). Here, the

allegations underlyBirnagd Pyetitioner’s guilt phase prosecutorial misconduct claim directly

correspond to the claim set forth in his Second Ground for Relief, and the

inconsistent theories of prosecution claim set forth in his Third Ground for Relief. The

Court considered and rejected those underlying claims, and subsequently determined that

because Petitioner failed to establish any underlying constitutional error, his prosecutorial

misconduct claim also lacked merit. Petitioner received a fair trial. Each instance of alleged

misconduct was either meritless or harmless, and the allegations standing alone or

considered together fail to satisfy the stringent requirements for a successful prosecutorial

misconduct claim on habeas review. Petitioner has failed to demonstrate that prosecutorial

misconduct wSeaes D “saor dperno nv.o Wunacinedw raingdh tpersistent that it permeated[d] the entire atmosphere

of the trial.” , 477 U.S. 168, 181 (1986). Further, the Court finds

Petitioner’s argument that the Court failed to set forth prevailing legal principles to be

disingenuous. The Court considered Petitioner’s allegations of guilt phase and pDeonnanletyll y v.

pDheCasher imstiosfcoornoduct within the same sLeocrtrioanin oef v t.h Ceo Oylpeinion and Order, and cited

, 416 U.S. 637 (1974), 13 , 291 F.3d 416 (6th Cir. 2002), and

Lamar v. Houk

, 798 F.3d 405 (6th Cir. 2015). (ECF No. 159, at PAGEID # 12349.)

Finally, Petitioner attempts to offer cause to excuse the default of several claims of

penalty phase prosecutorial misconduct. In the context of Rule 59(e), “Courts will not

entertain aBragnuimsteenr tvs. Dthaavti scould have been but were not rSaeies eadls boeMfocrFea trhlaen jeu svt. -Wissaurdeden

decision.” , 140 S.Ct 1698, 1702 (2020). , No.

2:18-cv-1377, 2019 WL 3501531, *1 (S.D. Oh. Aug. 1, 2019) (“Rule 59(e) motions cannot be

used to present new arguments that could have been raised prior to judgment.”).

Nevertheless, this Court previously conducted an alternative merits review of the defaulted

claims, determining the claims also lacked merit. Petitioner’s Rule 59(e) motion as it relates

to his SDix.t h GroDuenndia flo or fR Ceeliretfi ifsic daetnei eodf .A p p ealability

Finally, Petitioner argues the Court should reconsider the denial of a certificate of

appealability as to his Third, Seventh, and Ninth Grounds for Relief, as well as his lethal

injection claims. This Court is not persuaded. “[T]he standards for a certificate are no mere

technicality,” and a district court shall noMt goroadnyt va. CUOniAte “du nStleastes severy independent reason to

deny the claim is reasonably debatable.” , 958 F.3d 485, 493 (6th Cir.

2020). Because the Court is of the opinion that there is no substantial reason to think the

denial of relief is incorrect, the Court again concludes Petitioner has not met the standard

for granting aI CIIO. AP oasst t-oJu adngym oef nhtis M cloatiimosn. to File a Fourth Amended Petition

Despite the entry of final judgment in this matter, Petitioner filed a motion for leave

to file a Fourth Amended Petition to assert fiv1e4 new claims for relief.

Typically, a motion to amend a habeas corpus petition is, per 28 U.S.C. § 2242,

subject to the same standards which apply generally to motions to amend under Fed. R. Civ.

P. 15(a). The general standard for considering a motionF toom aamne vn. dD auvnidser Fed. R. Civ. P. 15(a)

was enunciated by the United States Supreme Court in , 371 U.S. 178 (1962):

If the underlying facts or circumstances relied upon by a plaintiff may be a

proper subject of relief, he ought to be afforded an opportunity to test his claim

on the merits. In the absence of any apparent or declared reason – such as

undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of any allowance of the amendment,

futility of amendment, etc., – the leave sought should, as the rules require, be

“freely givseeen a.”l so Fisher v. Roberts Foman

371 U.S. at 182; , 125 F.3d 974, 977 (6th Cir. 1997) (citing

standard). A motion to amend filed after final judgment has been entered, however, is not

typical.

A post-judgment motion to amend the petition is not considered a second or

successive habeas petition “if the district court has not lost jurisdiction oMf tohree loarnidgi vn.a l

hRaobbeinasso pnetition to the court of appeals, and therLee iissu srteil Cl taivmiaer t, oL LaCp pve. Ual..S”. Fish & Wildlife

Serv , 813 F.3d 315, 324 (6th Cir. 2016). In

., 616 F.3d 612, 616 (6th Cir. 2010), the Sixth Circuit set forth the procedure for

considering motions to amend filed after the entry of final judgment. The Sixth Circuit

concluded that a party “must shoulder a heavier burden” to amend after an adverse

judgment, and rather than “meeting only the modest requirements of Rule 15, theI dclaimant

must meet the requirements for reopening a case established by Rules 59 or 60.” . The

Sixth Court explained:

15

Rule 15 requests to amend the complaint are frequently filed and, generally

speaking, freely allowed. But when a Rule 15 motion comes after a judgment

against the plaintiff, that is a different story. Courts in that setting must

consider the competing interest of protecting the finality of judgments and the

expeditious termination of litigation. If a permissive amendment policy

applied after adverse judgments, plaintiffs could use the court as a sounding

board to discover holes in their arguments, then reopen the case by amending

their complaint to take account of the court’s decision. That would sidestep the

narrow grounds for obtaining post-judgment relief under Rules 59 and 60,

make the finality of judgments an interim concept and risk turning Rules 59

Id and 60S ienet oa lnsoulCliltaierks. v. United States

Le.i saut r6e1 C5a-1vi6a.r , 764 F.3d 653, 661 (6th Cir. 2014) (quoting

). The Sixth Circuit concluded that when faced with a post-judgment motion

to amend, the Rule 15 and Rule 59 inquiries must turn on the same factors, and if a

petitioner cannot meet the rIdequirements of Rule 59 to reopen the judgment, the petitioner

cannot amend the petition. . Of the “heavier burden” applicable to requests to amend

after an adverse judgmentF, othmea Snixth Circuit instructed:

In addition to the factors of undue delay, bad faith, dilatory motive,

undue prejudice, and the futility of the proposed amendment, post-judgment

requests to amend require that the district court ‘also take into consideration

the competing interest of protecting the finality of judgments and the

expeditious termination of litigation. This latter inquiry includes asking

whether the claimant has made a ‘compelling explanation’ for failing to seek

Pond v.l Heaavaes to amend prior to the entry of judgment. Leisure Caviar

, 674 F. App’x 466, 473 (6th Cir. 2016) (quoting , 616 F.3d at

617) (internal citations omitted). Banister v. Davis

Petitioner cites the recent Supreme Court decisfiiloinng in , 140 S.Ct.

1698, 1703 (2020), for the proposition that the mere of the Rule 59(e) motion places

the case in a pre-judgment posture so the Court should apply the more lenient Rule 15

standards to allow his amendment. (ECF No. 1166 3, at PAGEID #12472.) He argues the Sixth

Circuit casBea lanwist reerquiring a more stringent standard for post-judgment motions to amend

Lpereis-udraet eCsa viar, LLC, but he concedes “a district court judge recently favorably cited to

for the proposition that if moving to aImdend after judgment, the Epps

pv.e Ltiintidonneerr must meet the higher Rule 59(e) standards.” ( . at PAGEID #12474) (citing

, No. 1:19cv968, 2020 WL 7585605, *B3a n(Sis.Dte. rOhio Dec. 22, 2020)).

Petitioner’s argument is unpersuasive. , a habeas case, addressed whether a

Rule 59(e) motion constituted a second or successive habeas petition subject to the

strictures of 28 U.S.C. § 2244(b). 140 S.CtB. aant i1s7te0r2. In finding that the Rule 59(e) motion

was not a second or successive petition, did not address post-judgment motions to

amend a habeas petition, and did nothing to broaden the scope of matters to be considered

in a Rule 59(e) motion, noting:

White

[A] petitioner may invoke the rule only to request reconsideration of matters

properly encompassed in the challenged judgment. , 455 U.S. at 451. And

“reconsideration” means just that: Courts will not entertain arguments that

Id could have beBeann bisutte wr ere not raised before the just-issued decision. Leisure

Ca. vaita 1r702. Because did not concern a post-judgment motion to aSmeeen Jodh, tnhseto n v.

Dir. Bu rsetaanud oafr Pdr aispopnlsying a “heavier burden” is still binding on thisL Ceoisuurrte. Caviar

Banister , No. 20-5659 (6th Cir. Dec. 11, 2020) (citing , after

, and noting that “a party seeking to amend after the judgment faces a heavier

burden and must meet the requirements for reopening a case established by Federal Rule

of Civil AP.r ocedCulraei m59s oPre 6r0ta”i)n (iinngte tron aFle qtuaol tAaltcioonhso lo Smyinttderdo).m e D isorder

Petitioner seeks to add the following two claims regarding his late diagnosis of

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FASD:

Twenty-First Ground for Relief: Ineffective assistance of counsel for failure to

investigate and present evidence of Lindsey’s FASD.

Twenty-Second Ground for Relief: Allowing the death penalty for people with

FASD violates the prohibition against cruel and unusual punishment and the

equal protection clause.

(ECF No. 163-1, at PAGEID # 12494.) With respect to his claim of ineffective assistance of

trial counsel, Petitioner argues that trial counsel performed deficiently because the

diagnostic criteria for FASD was well established in 1997, yet counsel “failed to investigate

or obtain an evaluation for FASD, despite the fact that Lindsey’s mIdother abused alcohol

during her pregnancies, including her pregnancy with Lindsey.” ( . at PAGEID # 12496.)

Petitioner also cites certain “facial characteristics” which he argues are “clear markers for

FASD.” (ECF No. 163-1, at PAGEID # 12497.) According to Petitioner, “[d]ue to ineffective

assistance of trial and post-conviction counsel, as well as the trial court’s denial of expert

funding during post-conviction proceedings, Mr. Lindsey did not previously possess the

evidence supporting the new claims he seeks to amend into his petition.” (ECF No. 163, at

PAGEID # 12475.) To satisfy the prejudice element of his ineffective assistance claim,

Petitioner points to newly discovered evidence obtained after an evaluation by Dr. Julian

Davies, MD. Dr. Davies prepared a report on September 22, 2020, opining that Petitioner

suffers FASD:

Medical Opinion

It is my opinion to a reasonable degree of medical certainty that Mr. Lindsey

has Sentinel Physical Findings / Neurobehavioral Disorder / Alcohol Exposed

using the University of Washington 4-Digit Code criteria, which is a Fetal

Alcohol Spectrum Disorder. This desc1r8ib es a pattern of physical features and

brain dysfunction associated with prenatal alcohol exposure. This disorder

was likely compounded by severe childhood adversity and early-onset

substance abuse.

Mr. Lindsey is also very close to the Centers for Disease Control Definition of

Fetal Alcohol Syndrome (FAS): he meets the CDC criteria for facial features,

brain impairments, and alcohol exposure, but we lack historical growth

measurements that might demonstrate low weight and/or height.

(ECF No. 163-2, at PAGEID # 12529.) In diagnosing Petitioner with a FASD, Dr. Davis notIeds

that Petitioner does not have a CDC diagnosis of Fetal Alcohol Syndrome, but “is close.” ( .

at PAGEID # 12549.)

Petitioner argues that leave to amend is warranted here as he “diligently filed his

claims in state court based on newly discovered evidence.” (ECF No. 163, at PAGEID

#12488.) Petitioner notes that state court counsel for Petitioner filed a post-conviction

petition on July 22, 20St2a0t,e s ve.e Lkiinndgs etoy raise the new claims. (ECF No. 163, at PAGEID #

12489) (referencing , Nos. 1997-2015, 1997-2064 (Brown Cty. Ct. Com. Pl.)).

Petitioner contends that “[g]iven the Court’s December 30, 2020 decision, it is clear counsel

should have workIedd faster, but they have not engaged in dilatory tactics or in bad faith for

failing to do so.” ( . at PAGEID # 12489.)

The Court finds that Petitioner has not established that he could not have

reasonably raised the new claims pertaining to FASD prior to this Court’s entry of final

judgment. Petitioner argues that in 1997, his trial counsel were constitutionally deficient

for failing to identify FASD as an issue in his case. What is missing is why it took over

Utwneitnetdy S yteaaterss vto. S eexapgloore this claim. “A claim belatedly pursued is not newly discovered,”

, 930 F.2d 482, 490 (6th Cir. 1991), and here, Petitioner has not

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established that this claim could not have been discovered sooner through the exercise of

due diligence. Habeas counsel have been “on notice” of the same information Petitioner

faults trial counsel for not investigating. The fact that Petitioner’s mother drank excessively

during her pregnancies was documented as far back as 1997-1998, during Petitioner’s trial

and post-conviction proceedings. The state court record filed in this case contains the

September 17, 1998, Affidavit of Dr. Sharon Pearson, PSY.D. Dr. Pearson’s Affidavit

referenced the fact that Petitioner’s mother “reportedly drank heavily during all of her

pregnancies.” (ECF No. 152-8, at PAGEID # 7547.) Paragraph 44 states:

, his

Cmoontchleurssi’o hne:a Tvhy ed orinnek icnogn dsuisrtienngt hfaecr tporre ignn Manrc. Lieisn adnsedy t’hse l ipfero hbaasb blee ernes aullctoinhgo bl airntdh

sduebfescttasn icne hs eorf cahbiludsree,n from his grandparents’ and his parents’ alcoholism

, to his own, rapid development of addiction problems,

to his dichotomous “good guy-bad guy” behavior based on his chemical use,

the significant use of alcohol and drugs by his siblings and his wife. All of his

significant or primary relationships have been tainted by the effects of alcohol

and/or drugs.

(ECF No. 152-8, at PAGEID # 7556.) Although Petitioner’s diagnosis of FASD was not

known until his recent evaluation by Dr. Davis, the circumstances suggesting this as a

potential claim have been knowable since at least the time of Petitioner’s trial and post-

conviction proceedings. Petitioner offers no compelling basis for adding the claims at this

stage ofB t.he prColcaeiemdisn rgesg, aafrtderin fign pall ejuad ogfmfeernst has been entered.

Petitioner seeks leave to add the following three claims regarding the State’s

purported plea offers:

Twenty-Third Ground for Relief: Appellate counsel rendered ineffective

assistance by failing to communicate a2 0p lea offer in violation of the Fifth,

Sixth, Eighth and Fourteenth Amendments.

Twenty-Fourth Ground for Relief: Lindsey’s death sentence violates the

Constitution under the Sixth, Eighth, and Fourteenth Amendments because the

prosecution pursued the death penalty after independently determining that

a life-sentence was appropriate.

Twenty-Fifth Ground for Relief: Lindsey was denied effective assistance of

counsel for trial counsel’s failure to object to the withdrawal of the plea offers.

(ECF No. 163-1, at PAGEID # 12513-25.) The gist of Petitioner’s claims is that the Brown

County Prosecutor made certain plea offers and then withdrew those offers before

Petitioner was able to accept. According to Petitioner, Thomas Grennan, the Brown County

Prosecutor at the time of trial, sought to offer Petitioner a sentence less than death on

“multiple occasions.” (ECF No. 163, at PAGEID # 12483.) Petitioner argues he “decided to

accept” but “by the time this was coIdmmunicated to Prosecutor Grennan – just a few days

later – the deal was off the table.” ( .) Petitioner asserts that his appellate and post-

conviction counsel also performed unreasonably by failing to communicate an additional

plea offer after his trial and sentencing. According to Petitioner, “Prosecutor Grennan made

this offer to appellate counsel following Mr. Lindsey’s trial but prior to the trial of his co-

defendant, Joy Hoop. Mr. Lindsey’s counsel in his poIsdt-conviction proceedings, which were

pending at theM taimrtien, ewze vr.e R aylasno aware of the offer.” ( . at PAGEID # 12483-84.)

Citing , 566 U.S. 1 (2012), Petitioner states his new claims regarding

the plea offers “were not raised or litigated in his initial habeas petition or subsequent

amended petitions because post-conviction counsel remained as lead counsel throughout

his habeas proceedings and suffered a conflict of interest regarding their own

ineffectiveness.” (ECF No. 171, at PAGEID # 12216 54.) According to Petitioner:

Mr. Lindsey raises claims based on newly discovered evidence uncovered

during the course of a comprehensive investigation once the Federal Public

Defender’s Office became lead counsel. The new claims also could not have

been raised until prior counsel withdrew as lead counsel due to their ongoing

conflict of interest in raising their own ineffectiveness. Mr. Lindsey thoroughly

investigated the case, consulted with the necessary experts, and then timely

filed a post-conviction petition in state court in order to exhaust the claims and

Id evidence.

( . at PAGEID # 12654.) The Court finds Petitioner’s arguments unpersuasive.

First, Petitioner makes conclusory statements that his plea agreement claims could

not have been raised previously because post-conviction counsel could not have been

expected to raise their own ineffectiveness, but he does not provide details or evidence to

support this position. Specifically, Petitioner does not identify the attorneys who

represented him in both post-conviction and habeas. It appears that Attorney Laney

Hawkins served as lead counsel for Petitioner during his post-conviction proceedings. (ECF

No. 163-7, at PAGEID # 12567.) Attorney Hawkins worked Iads an Assistant Ohio Public

Defender from May 1997 until approximately April 2001. ( .) A review of the Court’s

docket in this matter establishes that Petitioner has been represented by several attorneys

in this habeas proceeding. On September 29, 2003, and while this case was in its infancy,

Attorneys Siobhan Clovis and Wendi Dotson, both of the Ohio Public Defender’s Office, filed

a motion to be appointed as counsel for Petitioner. (ECF No. 4.) Assistant State Public

Defender Dotson indicated that she hIdad represented Petitioner during a portion of his state

court post-conviction proceedings. ( . at PAGEID # 66.) On March 9, 2004, Assistant Ohio

Public Defender Pamela Prude-Smithers replaced Attorney Clovis as lead counsel. (ECF No.

24.) On October 5, 2005, Petitioner filed a motion to substitute Melissa J. Callais for

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Attorney Wendi Dotson, the attorney who had previously assisted Petitioner during his

post-conviction proceedings, because Attorney Dotson was no longer employed by the

Office of the Ohio Public Defender. (ECF No. 49.)

On September 30, 2008, Petitioner filed a motion to appoint the Federal Public

Defender for the Southern District of Ohio as co-counsel, based on Attorney Callais’s new

employment as an Assistant Public Defender in the Capital Habeas Unit of the Federal

Public Defender’s Office. (ECF No. 82.) On October 12, 2012, Attorney Carol Wright, a then

Assistant Federal Public Defender for the Southern District of Ohio, took over the role as

co-counsel for Petitioner. (ECF No. 99.) Finally, on June 13, 2015, Attorney Wright and the

Office of the Federal Public Defender, filed a “Notice of Substitution of Lead Counsel,” that

Attorney Wright replaced Attorney Prude-Smithers as lead counsel. This substitution

concluded the Ohio Public Defender’s representation of Petitioner. (ECF No. 126.)

In short, although the Office of the Ohio Public Defender represented Petitioner in

both his state court post-conviction proceedings and the instant habeas action, the docket

reflects that going back to 2007, the Office of the Federal Public Defender assisted the Ohio

Public Defender in representing Petitioner. At minimum, counsel could have filed for leave

to amend any time after June 3, 2015, when the Office of the Federal Public Defender

assumed sole responsibility for representing Petitioner in these habeas proceedings. After

that effective date, Petitioner sought leave to amend his petition three times, yet never

sought to add claims challenging the circumstances of the withdrawn plea offers or claims

pertaining to FASD. (ECF No. 131, 135, 144.) Petitioner has made no attempt to explain why

he did not seek to amend his petition to add t2h3e se claims in the more than five years since

the Ohio Public Defender’s Office concludedD thEeNirIE rSepresentation.

For the foregoing reasons, the Court Petitioner’s motion to file a Fourth

Amended Petition, post-judgment. As discussed in the prior section of this Opinion and

Order, Petitioner has not met the Rule 59(e) requirements for reopening his case, with the

exception of the Court’s limited reconsideration of one sub-claim that was deemed

abandoned by the Court, and which is ultimately procedurally defaulted. Petitioner has not

demonstrated the existence of newly discovered evidence that was not previously available

and has not offered a compelling justifIicVa. tCioonn fcolur sthioen d elay in seeking leave to amend.

GRANTS IN PART DENIES IN PART

For the foregoing reasons, the Court and GRANTS

Petitioner’s motion to alter or amend the judgment, ECF No. 162. The Court

Petitioner’s motion as it relates to sub-claim 2 of Petitioner’s Fourth Ground for Relief for

the limited purpose of determining that sub-claim 2 is procedurally defDauElNteIEdS a nd not

properly before the Court for a consideration on the merits. The Court Petitioner’s

Motion to Alter or Amend the Judgment as to all othDeEr NgrIoEuSnds and the denial of a

certificate of appealability. Furthermore, the Court Petitioner’s motion to file a

Fourth IATm ISe nSdOe dO RPeDtEitRioEnD, E. CF No. 163.

_/s/ Sarah D. Morrison________

SARAH D. MORRISON

United States District Judge

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