# Dunlap v. Paskett

> District Court, S.D. Ohio · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10380742

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10380742

## How later opinions describe it (automated extraction)

- finding unpersuasive “on point” language in an “unsigned, unpublished order with no reasoning”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380742. Public record. Not legal advice.