Dunlap v. Paskett

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TIMOTHY DUNLAP,

Petitioner,

Vv. Case No. 1:99-cv-559

JUDGE MICHAEL H. WATSON

DAVID PASKETT, Warden, Magistrate Judge Elizabeth P. Deavers

Respondent.

OPINION AND ORDER

The Court entered final judgment dismissing this capital habeas corpus

action on September 27, 2021. ECF Nos. 185, 186. Petitioner now moves to

alter or amend judgment, ECF No. 187, and to supplement that motion, ECF No.

190. For the reasons that follow, Petitioner's motion to supplement is granted,

but his motion to alter or amend is denied.

I. OVERVIEW

Petitioner seeks reconsideration of the Court's decision denying his

mitigation-phase claims of ineffective assistance of trial counsel, specifically

claims four and fourteen alleging counsel’s unreasonable and prejudicial failure

to conduct a more thorough investigation into, and present evidence of,

Petitioner's history of serious mental health disorder(s). Petitioner asserts that

reconsideration is necessary to remedy several clear errors of law, mistakes of

fact, and oversights that the Court made in reaching its decision. ECF No. 187,

at PAGEID # 9720. But Petitioner has failed to demonstrate any such errors,

mistakes, or oversights.

ll, STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 59(e), a petitioner may move

to alter or amend a judgment within twenty-eight days of the district court's entry

of the judgment. It “is a one-time effort to bring alleged errors in a just-issued

decision to a habeas court’s attention, before taking a single appeal.” Banister v.

Davis, 140 S. Ct. 1698, 1710 (2020). A Rule 59(e) motion is proper only if there

is (1) a clear error of law; (2) newly discovered evidence; (3) an intervening

change in controlling law; or (4) a need to prevent manifest injustice. Clark v.

United States, 764 F.3d 653, 661 (6th Cir. 2014) (citing Leisure Caviar v. U.S.

Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)). The Supreme Court

recently reiterated that “a prisoner may invoke the rule only to request

‘reconsideration of matters properly encompassed’ in the challenged judgment . .

.. Courts will not entertain arguments that could have been but were not raised

before the just-issued decision.” Banister, 140 S. Ct. at 1708 (quoting White v.

New Hampshire Dep’t of Emp. Sec., 455 U.S. 445, 451 (1982)). Further, Rule

59(e) is “not meant to allow a disappointed litigant to attempt to persuade the

Court to change its mind.” Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d

766, 809 (N.D. Ohio 2010) (citing GenCorp., Inc. v. Am. Int'l Underwriters, 178

Case No. 1:99-cv-559 Page 2 of 22

F.3d 804, 834 (6th Cir. 1999)).

lil. DISCUSSION

Petitioner asks the Court to reconsider its decision “that counsel's penalty-

phase investigation and mitigation case were reasonable and thus

constitutionally sufficient.” ECF No. 185, at PAGEID # 9630. Specifically,

Petitioner attacks the Court’s conclusion that:

[T]rial counsel’s decision not to pursue further mental health

evaluations or evidence was the result of a reasonable strategic

decision supported by sufficient investigation, not the result of an

oversight [lapse] borne of an unreasonable failure to pursue “red

flags” that no reasonably competent attorney would close the door

on or a mistaken belief that Petitioner's future dangerousness could

be weighed by the jury as a non-statutory aggravating circumstance

in favor of a death sentence.

ECF No. 185, at PAGEID # 9648. Although this “deficient performance”

determination was foremost to—and dispositive of—Petitioner’s ineffective

assistance claim, Petitioner also alleges “significant legal and factual errors” exist

in the Court’s determination that Petitioner was not prejudiced by counsel's

allegedly deficient performance. Petitioner focuses first on the prejudice

analysis, and the Court will do the same.

A. Prejudice

1. “Nexus” Argument

Petitioner first argues that the Court denied his penalty-phase ineffective

assistance claim “on the basis that he failed to show ‘any nexus between’ his

Case No. 1:99-cv-559 Page 3 of 22

mitigation offered and his ‘behavior in connection’ with the murder of Belinda

Bolanos,” and that such a denial “is inconsistent with long settled Supreme Court

precedent.” ECF No. 187, at PAGEID # 9724. Petitioner also accuses the Court

of “discounting” evidence of “serious mental health issues” because the evidence

“was not sufficiently related [to] the offenses.” /d. at PAGEID #9725. These

arguments are insufficient to warrant altering or amending the judgment.

First, the Court did not deny Petitioner’s claim (or fail to find prejudice) due

to a missing nexus between the mental health evidence (presented and/or

available) and Petitioner's conduct. Rather, the Court concluded that

consistency between various experts’ opinions as to the tentativeness of a nexus

between Petitioner's possible disorders and his behavior was just one of several

reasons why the mental health evidence, however relevant, may not have been

as compelling as Petitioner urges. ECF No. 185, at PAGEID ## 9645-48. The

other reasons included the consistency in various experts’ opinions regarding

Petitioner's propensity for malingering, aggrandizing, lying, manipulating, and

exhibiting predatory or sexually abusive behavior. Further, the Court’s

discussion of a nexus between Petitioner’s alleged mental disorders and his

conduct stemmed from language used by the Sixth Circuit in a decision which

dismissed the import of three postconviction mental evaluations with tentative

diagnoses and a tenuous connection between the possible mental disorders and

Case No. 1:99-cv-559 Page 4 of 22

the petitioner's commission of the crimes. ECF No. 185, at PAGEID # 9645

(citing Carter v. Mitchell, 443 F.3d 517, 527-30 (6th Cir. 2006)).

Second, the Court did not, as Petitioner asserts, ECF No. 187 at PAGEID

## 9726, 9730, “disregard” or “minimize” the mental health evidence or its

relevance due to a missing nexus between the mental disorders established or

suggested by that evidence and Petitioner’s conduct in committing the offenses.

Rather, the Court considered the evidence (presented and/or available) at length.

ECF No. 185, at PAGEID ## 9634-36, 9639-45, 9645-47, 9657-59.

The prejudice prong of Strickland’s two-prong standard defining

constitutionally ineffective assistance of counsel requires proof that, but for

counsel’s deficient performance, there is a reasonable probability that the result

would have been different.’ Thus, Petitioner would have to show in this case

that, but for counsel's failure to investigate and present a more complete picture

of Petitioner's mental health problems, there would have been a reasonable

probability that the penalty phase would have resulted in a sentence other than

death. That determination thus requires a court to look beyond the relevance of

the omitted mitigating evidence and additionally consider its substance. The

Court did that and found that unfavorable opinions and observations were

1 Strickland v. Washington, 466 U.S. 668, 695 (1984) (“When a defendant challenges a

death sentence such as the one at issue in this case, the question is whether there is a

reasonable probability that, absent the errors, the sentencer—including an appellate

Case No. 1:99-cv-559 Page 5 of 22

consistently expressed by numerous mental health providers. Whether, or to

what extent, various experts expressed skepticism about the nexus between

Petitioner's suspected mental disorders and his conduct was one of several

factors germane to the Court’s examination. Petitioner proceeds to use

misconceptions about the Court's “nexus” reference to re-argue the same

evidence, ECF No. 187, at PAGEID #4 9726-30, in search of a different result.

That is not a proper basis to alter or amend judgment.

Finally, in urging the Court to revisit the “prejudice” prong of Strickland,

Petitioner discounts that it was the Court’s “deficient performance” analysis that

was foremost and dispositive of his claim. For all these reasons, Petitioner's

“nexus” argument does not warrant alteration or amendment of the Court's

decision.

2. Argument about Relying on Idaho Resentencing

Petitioner next argues that the Court erred when it relied on Petitioner’s

2006 Idaho resentencing in assessing prejudice under Strickland. ECF No. 187,

at PAGEID # 9731. Petitioner is referring to a single sentence in which the Court

stated: “It is telling—but by no means binding and perhaps not even compelling,

given the different aggravating circumstances and mitigating factors at issue—

that even with the benefit of all of the new mitigation evidence that was presented

court, to the extent it independently reweighs the evidence—would have concluded that

Case No. 1:99-cv-559 Page 6 of 22

during Petitioner's 2006 Idaho resentencing hearing, the jury still sentenced

Petitioner to death.” ECF No. 185, at PAGEID # 9659 (citing Dunlap v. State,

159 Idaho 280, 291, 360 P.3d 289, 300 (2015)). Petitioner argues that “the

correct starting point is the Idaho Supreme Court’s opinion from 201 3{,]" which

found a genuine issue of material fact as to the deficient performance of

Petitioner’s Idaho trial counsel and noted significant evidence of prejudice. ECF

No. 187, at PAGE ## 9731-32 (discussing State v. Dunlap, 155 Idaho 345, 388,

313 P.3d 1, 44 (2013)). Petitioner further argues that “the most compelling

mitigation before this Court” was never presented during either the 2006 Idaho

resentencing or Petitioner's Ohio penalty phase. ECF No. 187, at PAGEID

# 9733. These arguments fall short of the standard for altering or amending

judgment.

First, it is evident from a reading of the Court’s entire prejudice analysis,

ECF No. 185, at PAGEID ## 9657-59, that the Court did not attach to the 2006

Idaho resentencing the weight that Petitioner suggests. Second, rather than split

hairs post-judgment about whether “the correct starting point” is the 2006

resentencing itself or what transpired on appeals from that resentencing, the

Court is comfortable discarding any reference to Petitioner’s post-judgment Idaho

proceedings. The Court does so for the very reason it originally and explicitly

the balance of aggravating and mitigating circumstances did not warrant death.”).

Case No. 1:99-cv-559 Page 7 of 22

qualified any reliance on those proceedings: because of the different

aggravating circumstances and mitigating factors at issue. Of course, the Court

could point to the latest resentencing, which ended with a death sentence that is

on appeal. ECF No. 187, PAGEID # 9732, n.2. Instead, however, the Court will

agree that Petitioner’s post-judgment Idaho proceedings were inapposite given

the different statutory schemes and different aggravating and mitigating

circumstances. But even without the post-judgment Idaho proceedings, the

Court is not persuaded that Petitioner has demonstrated prejudice under

Strickland. And again, it was the Court’s determination that counsel’s mitigation-

phase investigation and presentation were constitutionally sufficient that was

foremost and dispositive of Petitioner's claim. Petitioner's “Idaho resentencing”

argument does not warrant alteration or amendment of the Court's decision.

B. Deficient Performance

1. Opinion that “Future Dangerousness” Could Be Considered

The Court found that counsel did not render deficient performance in failing

to pursue more mental health evidence for their mitigation case. Rather, the

Court called it “a reasonable and legitimate strategy” to try to minimize the

quantity of evidence of Petitioner’s future dangerousness that was presented to

the jury. The Court so concluded “not because counsel were under the

misapprehension that the jury would be able to place ‘future dangerousness’ as

Case No. 1:99-cv-559 Page 8 of 22

an additional non-statutory aggravating circumstance on the ‘death’ side of the

scale,” but because it was damaging evidence in its own right, irrespective of

whether it constituted an additional aggravating circumstance on the “death” side

of the scale. ECF No. 185, at PAGEID # 9637. Petitioner argues that it was

error to find that future dangerousness could be considered in any way in the

sentencing process. ECF No. 187, at PAGEID ## 9734-38. The Court

disagrees.

First, as the Court noted, the record does not establish that trial counsel

were under the mistaken impression that “future dangerousness” could be

considered as an aggravating circumstance. The record establishes only that,

more than ten years after the trial, counsel could not recall and recite what Ohio’s

statutory aggravating circumstances were at the time of the trial. ECF No. 133-2,

at PAGEID # 5658. That is insufficient to establish constitutional ineffectiveness.

As this Court explained in Johnson v. Bobby, Case No. 2:08-cv-55, 2021 WL

6125049, at *82 (S.D. Ohio Dec. 28, 2021):

It is not up to counsel to prove their decision was either reasonable

or strategic ten years after trial when memories have faded.

Petitioner bears the burden of overcoming the deference courts

show to counsel's decisions. That counsel may not have

remembered the reasons for every decision is hardly surprising and

hardly enough, standing alone, to justify a conclusion that counsel's

actions were constitutionally ineffective.

Case No. 1:99-cv-559 Page 9 of 22

It is certainly insufficient to justify alteration or amendment of the judgment,

especially when this “misapprehension” allegation was also barred by procedural

default and principles of equity. ECF No. 185, at PAGEID ## 9604-07.

Furthermore, Petitioner argued the Court “should reconsider its opinion

that evidence of the unproven non-statutory aggravator of future dangerousness

could be presented to, and considered by, the Ohio jury.” ECF No. 187, at

PAGEID # 9734. This argument also fails. As noted above, the Court clearly

said that “future dangerousness’” was not an aggravating circumstance that could

be stacked on the death-side of the scale, ECF No. 185, at PAGE ### 9637-38.

That distinction matters. In Stallings v. Bagley, 561 F. Supp. 2d 821, 848-49

(N.D. Ohio 2008), the district court held:

[While a capital jury’s consideration of a defendant's future

dangerousness in its sentencing decision is not unconstitutional per

se, Simmons v. South Carolina, 512 U.S. 154, 162 [] (1994), in Ohio

the prosecution is foreclosed from raising the issue of future

dangerousness because it is not one of the enumerated aggravating

circumstances found in Ohio Revised Code § 2929.04(A), that a jury

may consider when sentencing a capital defendant.

Here, the prosecution repeatedly and correctly identified the two statutory

aggravating circumstances that Petitioner was charged with and found guilty of.

ECF No. 134-1, at PAGEID ## 7624, 7626, 7759-61, 7794. The prosecution

never raised, or urged the jury to consider, Petitioner’s future dangerousness as

an additional aggravating circumstance. Additionally, the court properly

Case No. 1:99-cv-559 Page 10 of 22

instructed the jury as to the only two statutory aggravating circumstances that

could be considered, i.e., the statutory aggravating circumstances that were

charged in the indictment and found by the jury beyond a reasonable doubt. /d.

at PAGEID # 7817.?

Petitioner's “future dangerousness” argument does not warrant alteration

or amendment of the Court’s judgment.

2. Evidence Counsel Possessed Versus Available Evidence

Petitioner next argues that the Court erred by limiting its consideration to

only evidence that trial counsel actually had (or were aware of) as opposed to

considering all of the available evidence that a reasonable investigation by

counsel would have uncovered. ECF No. 187, at PAGEID ## 9738—40. Relying

on Wiggins v. Smith, 539 U.S. 510, 524 (2003) (citing ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C)

(1989)); and Rompilla v. Beard, 545 U.S. 373, 387 n.7 (2005), Petitioner argues

that mitigation-phase effectiveness imposes a duty to discover all reasonably

available evidence. ECF No. 187, at PAGEID ## 9738-39.

2 Moreover, Petitioner offered evidence of, and much argument was made about, his

remorse. /d. at PAGEID ## 7685, 7686, 7697-7749, 7767-68, 7805-08. And the Court

is aware of at least one decision in which a district court suggested that evidence of

future dangerousness was properly offered to rebut the accused’s evidence of remorse.

Raglin v. Mitchell, Case No. 1:00-cv-767, 2011 WL 2183287, at *32 (S.D. Ohio Feb. 2,

2011) (Merz, M.J.).

Case No. 1:99-cv-559 Page 11 of 22

Petitioner's argument misapprehends the entire foundation of the Court's

reasoning: counsel’s determination that mental health was not an avenue of

mitigation worth pursuing further, which determination was based on the

evidence counsel had uncovered or learned about leading up to Petitioner's trial,

was a reasonable strategic decision based on a sufficient investigation. And

contrary to Petitioner's above argument, the Court does not agree that counsel

abandoned their investigation after gaining only “rudimentary knowledge.” ECF

No. 187, at PAGEID # 9739 (quoting Wiggins, 539 U.S. at 524). Their

investigation was not truncated prematurely but was instead drawn down

reasonably. Even if, for argument’s sake, there happened to exist additional

mental health evidence, the evidence counsel did gather or learn of revealed no

glaring leads or red flags that counsel left unpursued, abandoned, or ignored.

Rather, counsel obtained or learned of enough evidence from which a

reasonable attorney could decide as a matter of strategy that it was not beneficial

to further investigate Petitioner's mental health.

Petitioner uses the following legal principle: “In assessing the

reasonableness of an attorney’s investigation,” “a court must consider not only

the quantum of evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further[,]” which quotes

Wiggins, 539 U.S. at 527, and is a correct statement thereof, to support the

Case No. 1:99-cv-559 Page 12 of 22

following argument: Reviewing courts are required to consider the evidence

that was available at the time of the petitioner’s trial in order to determine

whether the scope of trial counsel's investigation was reasonable. ECF No. 187,

at PAGEID # 9739. This is not a correct statement of law. The Court thus

stands by its conclusion that:

[Tjrial counsel acted reasonably in relying on the information that

was available to them leading up to Petitioner’s trial to decide as a

matter of strategy that pursuing additional mental health evidence

would not be beneficial. And even if Petitioner discounts the

opinions rendered by Dr. Estess, the LifeSpring records, David

Doten, and Dr. Chiappone [i.e., the gravamen of the evidence

available to trial counsel leading up to Petitioner's trial] as not being

fully informed or not accurately rendered by appropriately qualified

experts, that is with the benefit of hindsight, not forward-looking from

counsel’s perspective at the time, as Strickland requires.

ECF No. 185, at PAGEID # 9645.

As a sub-argument, Petitioner argues that any reasonable attorney would

have obtained records from the institution from which Petitioner had escaped just

prior to committing the murder (Madison State Hospital). ECF No. 187, at

PAGEID ## 9740-44. Petitioner asserts that the failure to collect these records

was “unconscionable” and not “justified by any reasonable trial strategy” for two

reasons. First, according to Petitioner, those were the most recent mental health

records preceding the crimes for which he was tried and convicted. /d. at

PAGEID # 9741. Second, Petitioner continues, because the prosecution already

possessed the record, counsel had no reason to use the records’ reference to

Case No. 1:99-cv-559 Page 13 of 22

Petitioner’s future dangerousness as a reason for failing to obtain the records.

To that point, Petitioner reiterates Rompilla’s imposition of a duty to make all

reasonable efforts to investigate material that counsel knows the prosecution will

assert as aggravation at the sentencing phase. /d. at PAGEID ## 9742-43

(discussing Rompilla, 545 U.S. at 377-79).

In making this sub-argument, Petitioner touts the favorability of the

Madison State Hospital records. ECF No. 187, at PAGEID # 9744. But Dr.

Michael Estess’s February 28, 1992 letter describes the records and contains

nothing particularly notable; his description says the records largely mirror what

was reflected in the LifeSpring records and what Dr. Estess himself observed.

ECF No. 132-10, at PAGEID ## 4136-37; ECF No. 140-1, at PAGEID # 7920.

Further, according to defense expert Dr. David Chiappone’s summary and

habeas corpus deposition, Petitioner admitted that he had engaged in

malingering during treatment related to his marital/legal problems in order to

delay any legal action. ECF No. 133-3, at PAGEID # 6066. It is reasonable to

believe that Dr. Chiappone shared this admission with trial counsel. Thus,

counsel's failure to obtain these records, while perhaps not optimal, cannot be

characterized as objectively unreasonable.

And Petitioner's continued suggestion that counsel’s omissions were

driven by a misapprehension about the admissibility of “future dangerousness”

Case No. 1:99-cv-559 Page 14 of 22

evidence has been addressed and rejected, not only as procedurally defaulted,

ECF No. 185, at PAGEID ## 9604-10, 9634, but also as unsupported by the

record and insufficient to warrant alteration or amendment of the Court's

judgment. Petitioner’s potential for future dangerousness and lack of remorse

were just two of several unfavorable opinions voiced by the mental health

professionals who treated or observed Petitioner and which counsel learned of

leading up to trial. In this regard, the Court finds specious Petitioner's argument

that, in lieu of obtaining the available source evidence, counsel simply “accepted

[Dr. Estess]’s interpretation of those documents as gospel[,]” and relied “on a

cursory report from Dr. Chiappone[.]” ECF No. 187, at PAGEID # 9743.

More importantly, this argument—placing emphasis for the first time on

counsel's failure to obtain records from the institution from which Petitioner

escaped—could have been, but was not, made earlier. Similarly, Petitioner's

Rompilla argument establishing the unreasonableness of an attorney’s failure to

examine any material that the prosecution will use at sentencing is also an

argument that could have been raised earlier. And here, unlike in Rompiila,

counsel's decisions stemmed from strategic judgment rather than inattention.

As another sub-argument, Petitioner argues that other available records

would have substantially bolstered counsel’s ability to undermine the damaging

opinions that Dr. Estess offered during the sentencing phase. ECF No. 187, at

Case No. 1:99-cv-559 Page 15 of 22

PAGEID ## 9744-49. Contrary to the Court’s conclusion that counsel's

truncated investigation was justified by the consistently unfavorable opinions

expressed in the mental health evidence that trial counsel did investigate,

Petitioner contends that “[a]n examination of the records shows clear

contradictions trial counsel failed to use to their advantage, and which this Court

should assess in reconsidering its decision regarding trial counsel's conduct.” /d.

at PAGEID # 9745.

In attempting to undercut the Court’s determination that counsel

reasonably decided—on the basis of more than rudimentary evidence—that

continued investigation into Petitioner's mental health would not likely produce

valuable evidence for their mitigation case, Petitioner downplays consistencies in

unfavorable opinions expressed in the mental health evidence known to counsel.

He also overstates the few contradictions scattered through the evidence.

Petitioner provides as examples records indicating that Petitioner had a

developmental age below his chronological age and records demonstrating that

Petitioner was not feigning mental disorders. ECF No. 187, at PAGEID # 9746.

These examples are insufficient to undermine the Court’s determination, both in

its dispositive opinion and already discussed in the instant decision, that opinions

expressed by mental health professionals in testimony and records were

consistent in several unfavorable respects, ECF No. 185, at PAGEID ## 9638—-

Case No. 1:99-cv-559 Page 16 of 22

39, 9645. Petitioner's examples certainly do not amount to a “clear error”

sufficient to warrant alteration or amendment.

Petitioner also minimalizes counsel's investigation as consisting of just

“(rleview[ing] of one set of records and limited interviews with family.” ECF No.

187, at PAGEID # 9745. But counsel did more than what Petitioner suggests,

even if informally. What Petitioner characterizes as “limited interviews” with his

immediate family members stands in stark contrast to what counsel recalled as

multiple, substantive conversations with Petitioner's family—especially

Petitioner's mother, ECF No. 185, at PAGEID ## 9649, 9650-51. And the

suggestion that counsel’s investigation into Petitioner's mental health consisted

of “[rleview[ing] one set of records” ignores counsel’s preparation for and

participation in the pre-trial deposition of Dr. Estess, ECF No. 185, at PAGEID

## 9649-50, as well as counsel’s consultation with their defense psychologist,

Dr. Chiappone. Review of Dr. Estess’s deposition transcript and trial transcripts,

as well as defense counsel’s habeas deposition transcripts, ECF No. 185, at

PAGEID ## 9653-54, reveals a level of preparation and knowledge greater than

that characterized by Petitioner and also belies Petitioner's argument that

counsel went into Dr. Estess’s deposition “completely unprepared,” ECF No. 187,

at PAGEID # 9748.

Case No. 1:99-cv-559 Page 17 of 22

Petitioner also offers as an example of counsel’s unpreparedness their

mistaken recollection, some ten years later, that they received the services of

mitigation investigator James Crates. ECF No. 187, at PAGEID #9747. They

did not, ECF No. 61, at PAGEID # 9200, but the Court addressed this matter in

its opinion, ECF No. 185, at PAGE ## 9652-53, and will not revisit it here.

The remainder of this sub-argument consists of Petitioner again using the

Court's alleged failure to consider all of the evidence in existence when

assessing the reasonableness of counsel's decision to forgo additional mental

health investigation as justification to re-argue the same evidence set forth in

support of his habeas petition in search of a different result. ECF No. 187, at

PAGEID ## 9748—49. The Court stands by its determination that trial counsel

acted reasonably in relying on the information that was known to them leading up

to Petitioner’s trial to decide as a matter of strategy that pursuing additional

mental health evidence would not be beneficial to Petitioner's mitigation case.

ECF No. 185, at PAGEID #9645. The Court will not revisit arguments and

evidence already considered and rejected. Petitioner's “all available evidence”

argument does not support alteration or amendment of the Court's judgment.

C. Reasonableness of State Court’s Decision

Petitioner also urges the Court to alter or amend its determination that the

state appellate court’s decision affirming the denial of his mitigation-phase

Case No. 1:99-cv-559 Page 18 of 22

ineffective assistance claims was reasonable within the meaning of 28 U.S.C.

§ 2254(d). ECF No. 187, at PAGEID ## 9749-51. Petitioner reasons that the

state court failed to conduct any of the legal analysis required by Strickland and

erroneously curtailed its prejudice examination by placing undue reliance on the

presumed reasonableness of counsel’s investigation and performance.

Petitioner's arguments do not warrant amendment or alteration of the Court's

judgment.

The Court essentially agreed with the absurdity of finding “reasonableness”

in “[t]he appellate court’s one-paragraph decision” that “did not discuss or even

reference any supporting exhibits” and “did not plausibly convey any serious level

of consideration.” ECF No. 185, at PAGEID # 9627. But the Court also noted

that, despite the fact that the state court’s decision “does not appear to meet a

dictionary or commonly understood definition of ‘reasonable[,]” ECF No. 185, at

PAGEID # 9628, the state court’s decision satisfies the Sixth Circuit's definition of

“reasonableness,” ECF No. 185, at PAGEID ## 9628-29 (discussing England v.

Hart, 970 F.3d 698, 710 (6th Cir. 2020), and Cassano v. Shoop, 1 F.4th 458,

472-73 (6th Cir. 2021))}—the definition that is binding on this Court. Moreover,

the Court still found Petitioner's claim meritless under de novo review. ECF No.

185, at PAGEID # 9630. Petitioner’s “§ 2254(d) reasonableness” argument does

not warrant alteration or amendment of the Court’s decision.

Case No. 1:99-cv-559 Page 19 of 22

D. Motion to Supplement

Petitioner seeks permission to supplement the instant motion with a

remand order issued by the Sixth Circuit in the capital case of Kinley v.

Bradshaw, No. 14-4063, as intervening new law.? ECF No. 190. According to

Petitioner:

Kinley confirms that, contrary to this Court’s order denying habeas

corpus relief (ECF No. 185), which had applied Cullen v. Pinholster,

563 U.S. 170 (2011) to bar consideration of mitigating evidence that

Dunlap presented to the Ohio courts in his successive state post-

conviction petition, this Court must now consider that new evidence

supporting his Fourteenth Ground for Relief.

ECF No. 190, at PAGEID # 9777; ECF No. 190-1, at PAGE # 9780. The Court is

not persuaded that the remand order in Kinley warrants any alteration or

amendment of the judgment in the instant case.

Notwithstanding the many pleadings and decisions that went into the

remand order—Case No. 3:03-cv-127, ECF No. 139, (Feb. 18, 2022)—it is an

unpublished, unexplained order, signed by the Clerk, and as of the writing of the

instant decision, not yet addressed by this Court. Thus, nothing about that

remand order is binding or even persuasive sufficient to “overturn” or “abrogate”

this Court’s application of Pinholster, ECF No. 190-1, at PAGEID # 9787, much

less constitutes an “intervening change of law.” See, e.g., Bell v. Johnson, 308

3 Petitioner states that Respondent does not object this motion to supplement. ECF

No. 190, at PAGEID # 9777.

Case No. 1:99-cv-559 Page 20 of 22

F.3d 594, 611 (6th Cir. 2002) (“It is well-settled law in this circuit that unpublished

cases are not binding precedent.” (citing Salamalekis v. Comm’r of Soc. Sec.,

221 F.3d 828, 833 (6th Cir. 2000); Cattin v. Gen. Motors Corp., 955 F.2d 416,

431 n. 14 (6th Cir. 1992))); see also Mattox v. Edelman, 851 F.3d 583, 594 (6th

Cir. 2017) (finding unpersuasive “on point” language in an “unsigned,

unpublished order with no reasoning”). Absent an “intervening change of law,”

this Court’s application of Pinholster in the instant case is properly resolved by

the Sixth Circuit on appeal, not by this Court on a motion to alter or amend. The

Court expressly certified this issue for appeal. ECF No. 185, at PAGEID

## 9603-04.

Although the motion to supplement and accompanying exhibits do not

support alteration or amendment of the Court’s judgment, the Court will grant

Petitioner's motion to supplement, ECF No. 190, out of an abundance of caution

and in the interests of a complete record.*

4 It bears noting that although the Court officially found that Pinholster precluded

consideration of the new evidence that Petitioner developed during these proceedings

and attempted to present to the state courts in his successive postconviction action,

ECF No. 185, at PAGEID ## 9601-02, the Court proceeded to consider some of that

evidence and still rejected Petitioner's claim, /d. at PAGEID ## 9630, 9645-46, 9657—

Case No. 1:99-cv-559 Page 21 of 22

IV. CONCLUSION

For the foregoing reasons, Petitioner’s Motion to Alter or Amend, ECF No.

187, is DENIED, and Petitioner's Motion to Supplement, ECF No. 190, is

GRANTED.

IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

58.

Case No. 1:99-cv-559 Page 22 of 22