Hasan v. Ishee

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

SIDDIQUE ABDULLAH HASAN,

f/k/a Carlos Sanders,

Petitioner, : Case No. 1:03-cv-288

- vs -

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

TIMOTHY SHOOP, Warden,

Chillicothe Correctional Institution

Respondent. :

DECISION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s Motion to Amend his

Habeas Petition (ECF No. 309) and Motion to Stay Litigation to Pursue State Court Remedies

(ECF No. 310).

Motions to amend and motions to stay are non-dispositive motions within the initial

decisional authority of and assigned Magistrate Judge. Monroe v. Houk, No. 2:07-cv-258, 2016

U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S.

Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.); Chinn v. Warden, 2020 U.S. Dist.

LEXIS 94062 (S.D. Ohio May 29, 2020)(Morrison, D.J.).

The Motion to Amend is denied without prejudice to its renewal on certain conditions and

the Motion to Stay is denied, both for the reasons that follow.

Motion to Amend [ECF No. 309]

Petitioner’s original Petition for federal habeas corpus relief, filed on April 22, 2003,

alleged violations of Brady v. Maryland, 373 U.S. 83 (1963) in Claims Ten and Eleven and a

violation of Napue v. People of State of Ill., 360 U.S. 264 (1959), in Claim Seventeen. (ECF No.

16 at PageID# 2090-92, 2103-04). Petitioner has now filed a Motion to Amend (ECF No. 309),

stating that he is seeking to assert a “new claim” based on Brady and Napue violations, or,

alternatively, that he is seeking to amend Claims Ten, Eleven, and Seventeen with additional facts

and evidence. (ECF No. 309-1 at PageID# 18390). Whichever characterization Petitioner chooses,

his proposed amendment adds detail to his original habeas Claims Ten, Eleven, and Seventeen.1

On direct appeal, as part of his Fifth Proposition of Law, Petitioner alleged that the

prosecutor knew that state’s witness Kenneth Law offered perjured testimony. (Merit Brief of

Appellant, State Court Record, ECF No. 159-3 at PageID# 4519-4520). The Supreme Court of

Ohio dismissed the claim, concluding that it was unsubstantiated. State v. Sanders, 2001-Ohio-

189, 92 Ohio St. 3d 245, 271 (copy at State Court Record, ECF No. 159-5 at PageID# 5357-5358).

Petitioner raised a non-specific Brady claim as Claim 41 in his successive postconviction

petition. (Second Postconviction Petition, State Court Record, ECF No. 160-2 at PageID # 6200-

01). The Hamilton County Court of Common Pleas dismissed Petitioner’s entire successive

postconviction petition for lack of jurisdiction pursuant to Ohio Revised Code § 2953.53. (ECF

No. 160-4 at PageID# 4072). The Ohio First District Court of Appeals affirmed. State v. Sanders,

2002-Ohio-5093 (copy at State Court Record, ECF No. 160-5 at PageID# 7210-7213). The

1 While it is not immediately clear, it seems that Petitioner recognizes the paradox associated with

simultaneously arguing that his claims related back to the original petition because they share a common core of

operative facts, and a stay is also warranted because the claims are entirely new.

Supreme Court of Ohio subsequently declined jurisdiction. State v. Sanders, 2003-Ohio-259, 98

Ohio St. 3d 1423 (2003)(copy at State Court record, ECF No. 161-1 at PageID# 7306-7307).

When Petitioner filed his federal habeas Petition, he asserted in Claim Ten, “[t]he trial

prosecutors suppressed exculpatory evidence by failing to disclose to trial counsel the change in

testimony by numerous inmate witness in violation of the Fourteenth Amendment,” and in Claim

Eleven, “[d]efense counsel were not provided relevant records needed to effectively cross examine

State’s witnesses in violation of the Sixth and Fourteenth Amendments.” (ECF No. 16 at PageID#

2090-2091). He asserted in Claim Seventeen that the prosecution presented Kenneth Law’s false

testimony at trial. ECF No. 16 at PageID# 2103-2104.

On August 14, 2006, the undersigned filed a Report and Recommendation, recommending

the dismissal of the entire federal Petition, including claims Ten, Eleven, and Seventeen. (the

“Report,”ECF No. 81 at PageID# 1096-1097, 1098-1099, 1112-1113). The Report determined that

Claim Ten was procedurally defaulted (id. at 1097-1098) and acknowledged that Petitioner

declined a review on the merits of Claims Eleven and Seventeen (in pertinent part). Id. at 1098-

1099; 1112-1113. The Court adopted the Report on April 28, 2021. (ECF No. 246). However, on

August 10, 2021, the Court granted Petitioner’s Motion for Reconsideration (ECF No. 248), and

vacated its April 28, 2021, Order based on Petitioner’s argument that he believed he would be

provided with additional opportunity for briefing. (ECF No. 266).

Petitioner now contends that Fed. R. Civ. P. 15 permits his proposed amendment because

his new allegations relate back to Claims Ten, Eleven, and Seventeen. (ECF No. 309-1 at PageID#

18409-18420). Petitioner asserts that his new allegations add factual details to the common core

of operative facts in his original Petition and these details were not available to him until years

after the original Petition was filed. Id. at PageID #18411. Specifically, Petitioner contends that

he received documents from various sources that were suppressed by the prosecution and those

documents show: (1) the State knew that Kenneth Law testified falsely at his trial, and (2) state

trial witnesses received undisclosed benefits and extensive coaching. Id. The documents Petitioner

contends were suppressed and form the basis of his proposed amendment are found in the

Appendix to his Motion to Amend. (ECF No. 309-3). In compliance with the Court’s Order (ECF

No. 314), Petitioner provided the Court with an explanation of how each document in the Appendix

relates to each Claim in the original habeas petition. (ECF No. 315). Petitioner also explained the

source of the documents and the approximate dates they were received. Id.

Petitioner argues that he should be permitted to amend his Petition because changes in Ohio

law created “newly available remedies.” (ECF 309-1 at PageID# 18420). Particularly, Petitioner

argues that decisions by the Supreme Court of Ohio, State v. Bethel, 167 Ohio St. 3d 362 (2022),

reconsideration denied, 166 Ohio St. 3d 1510 (2022), and cert. denied, 143 S. Ct. 789, 215 L. Ed.

2d 55 (2023), and State v. McNeal, 169 Ohio St. 3d 47 (2022), provide him with an opportunity to

return to state court and file a motion for a new trial and another postconviction petition. (ECF No.

309-1 at PageID# 18422-18423). Petitioner contends that the Court should not deny his request to

amend based solely on timeliness grounds. Id. at PageID #18422. He also contends that

Respondent is not prejudiced by the proposed amendment because the State suppressed the

evidence that forms the basis of the amendment (id. at PageID# 18421), has been in possession at

all times of the relevant evidence (id. at PageID# 18423), and any delay in the proceedings is

outweighed by the interests of judicial economy and federalism. Id. Petitioner also contends that

his capital case demands a heightened concern for fairness. Id. at PageID# 18425.

Respondent argues that the amendment should be denied because Petitioner has not sought

to vacate the Court’s dismissal of Claims Ten, Eleven, and Seventeen. (ECF No. 323 at PageID#

18945-18946). Respondent also contends that the proposed amendment is futile because the

original claims were procedurally defaulted. Id. Citing this Court’s recent decisions denying

similar motions to stay, Respondent argues that Bethel does not provide adequate grounds to justify

the proposed amendment. Id. at PageID# 18947-18948. Respondent also contends that Petitioner’s

advancement of this proposed amendment in the face of these adverse decisions is evidence of

undue delay and dilatory motive. Id. at PageID #18948-18952. Finally, Respondent contends that

the proposed amendment does not “relate back” to the original petition because the original claims

were too vague. Id. at PageID #18952-18954.

In his Reply, Petitioner points out that the Court vacated its April 28, 2021, Order

dismissing Claims Ten, Eleven, and Seventeen. (ECF No. 328 at PageID# 19025-19026). The

Reply reiterates arguments that Bethel has changed the procedural landscape to an extent that the

proposed amendment should be permitted. Id. at PageID# 19028-19031. Petitioner contests

Respondent’s argument that his proposed amendment is a delay tactic, pointing out that the state

suppressed the evidence that forms the basis of the amendment and Bethel provided a new pathway

to return to state court. Id. at PageID# 19032-19033. Petitioner also disputes Respondent’s

argument that his amendment does not “relate back,” arguing the proposed claims are sufficiently

similar to the original petition. Id. at PageID# 19036-19037.

28 U.S.C. § 2242 provides that a habeas corpus petition “may be amended or supplemented

as provided in the rules of procedure applicable to civil actions.” The general standard for

considering a motion to amend under Fed. R. Civ. P. 15(a) was enunciated in Foman v. Davis, 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 given.”

371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997), citing Foman.

In considering whether to grant motions to amend under Fed. R. Civ. P. 15, a court should

consider whether the amendment would be futile, i.e., if it could withstand a motion to dismiss

under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 745–746 (6th Cir.

1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran

Corp., 747 F.2d 1536, 1550 (6th Cir. 1984); Commc'ns Sys., Inc. v. City of Danville, Ky., 880 F.2d

887, 895 (6th Cir. 1989); Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983);

Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., Dep't of Hous. & Urb. Dev., City

of Louisville, 632 F.2d 21, 23 (6th Cir. 1980); U.S. ex rel. Antoon v. Cleveland Clinic Found., 978

F. Supp. 2d 880, 886 (S.D. Ohio 2013), aff'd on other grounds, 788 F.3d 605 (6th Cir. 2015).

Likewise, a motion to amend may be denied if it is brought after undue delay or with

dilatory motive. Foman, 371 U.S. 178; Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259

(6th Cir. 1990); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (amendment should be denied

if it “is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the

opposing party, or would be futile.”). In Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994), the court

repeated and explicated the Foman factors, noting that “[d]elay by itself is not a sufficient reason

to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical

factors in determining whether an amendment should be granted. Id. at 130, quoting Head v. Jellico

Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989). These considerations apply as well in capital

habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998), quoting Brooks, 39 F.3d 125.

Having considered the factors for an amendment under Fed. R. Civ. P. 15, the Court

concludes that Petitioner should be permitted to amend his Petition, but not in the format he has

submitted (ECF No. 309-2). Because the April 28, 2021, Order dismissing Claims Ten, Eleven,

and Seventeen was vacated, these claims remain pending before the Court and their viability has

not yet been officially determined. The Court cannot say, based on a prior ruling on the original

petition that has now been vacated, that the proposed amendment is futile. At the appropriate time,

the parties will be provided with an opportunity to fully brief the merits of Petitioner’s amendment,

whether the proposed claims are procedurally defaulted, and whether the Court may consider the

documents included in ECF No. 309-3.

The Court finds that the substance of the proposed amendment relates back to the original

petition because it is not different in kind from the original allegations, only in specificity. The

original petition alleges that the prosecution suppressed documents that the defense needed to

adequately cross-examine the state’s prisoner-witnesses and alleges that the prosecutors knew that

Kenneth Law testified falsely. The proposed amendment and attached documents appear to

provide evidentiary support for these allegations.

Respondent does not have a valid argument for undue prejudice based on the timing of the

amendment because the documents that form the basis of the proposed amendment were in

Respondent’s possession and not turned over to Petitioner until discovery was conducted in a

related capital habeas case. Petitioner’s failure to seek an amendment before now is mitigated by

the fact that there is no evidence of bad faith and because other factors have led to the protracted

nature of this litigation.2

2 Factors that have led to the protracted nature of this case are include, but are not limited to, seminal decisions

in Cullen v. Pinholster, 563 U.S. 170 (2011), White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th Cir. 2019), and

Shinn v. Ramirez, 596 U.S. 366 (2022).

The Court finds that Petitioner may amend his habeas Petition.3 However, the Court rejects

the form of the proposed amendment (ECF No. 309-2). An amended complaint supersedes all prior

complaints. Drake v. City of Detroit, Michigan, 266 F. App'x 444, 448 (6th Cir. 2008). The Court

has found that the substance of the proposed amendment relates back to original Claims Ten,

Eleven, and Seventeen, yet the proposed amended petition merges all allegations into a single,

unnumbered claim (ECF No. 309-2). Further, the proposed amendment does not include any of

Petitioner’s original claims. Within thirty days, Petitioner shall file a Motion for Leave with a

complete new proposed amended petition. Petitioner is to include in this proposed amended

petition all claims he intends the Court to consider moving forward.

Motion to Stay [ECF No. 210]

Next, Petitioner argues that this matter should be stayed, and he should be permitted to

return to state court because the Ohio Supreme Court’s Bethel decision has created “newly

available remedies” for his Brady and Napue claims. ECF No. 310-1 at PageID# 18604.

Respondent argues that the state courts could potentially consider Petitioner’s amended claims,

but additional state court exhaustion is not required, and a stay is not justified. ECF No. 323 at

PageID# 18948.

Four decisions have been issued in this District rejecting the same argument for a stay made

by Were v. Bobby, No. 1:10-CV-698, 2023 WL 2522837 (S.D. Ohio Mar. 15, 2023) (Watson, D.J);

Conway v. Warden, Chillicothe Corr. Inst., No. 2:07CV947, 2023 WL 2527252 (S.D. Ohio Mar.

15, 2023) (Marbley, C.J.); Kinley v. Bradshaw, No. 3:03-CV-127, 2023 WL 6057368 (S.D. Ohio

3 Absent extraordinary circumstances, any additional amendment will not be considered.

Sept. 18, 2023), certificate of appealability granted, No. 3:03-CV-127, 2024 WL 62907 (S.D.

Ohio Jan. 5, 2024) (Watson, D.J), and Conway v. Houk, No. 3:07-CV-345, 2023 WL 6248503

(S.D. Ohio Sept. 26, 2023), supplemented sub nom. Conway v. Shoop, No. 3:07-CV-345, 2023

WL 8711579 (S.D. Ohio Dec. 18, 2023) (Watson, M.J.). Chief Judge Marbley’s Order denying

the motion to stay in Conway, 2023 WL 2527252 best summarizes the Court’s collective

conclusion in these matters:

The Court rejects Petitioner's argument that Bethel expands the scope of remedies

available to him and therefore justifies a stay of these proceedings so that he may

return to state court in order to litigate…his Brady claim…. Bethel considered when

a trial court has subject matter jurisdiction to entertain a successive postconviction

petition in the limited context where the state is alleged to have withheld material

evidence from the accused. With respect to untimely Criminal Rule 33 motions for

leave to file a motion for a new trial, Bethel made clear that a “reasonable time”

filing requirement is not contained within that Rule. Perhaps this may present a

“more viable” course of action than was previously thought available, but the

hypothetical feasibility of filing such a motion does not mandate a stay of federal

habeas proceedings when the essential factual and legal basis of Petitioner's claims

have already been presented to the state courts. For purposes of exhaustion, it is not

necessary for Petitioner to present the same claim for relief in postconviction and a

motion for leave to file a motion for a new trial, because “[w]here several

alternative State remedies are available to a defendant, exhaustion of one of those

alternatives on a particular issue is all that is necessary. Section 2254 does not

require repetitious applications to State courts for relief.” Keener v. Ridenour, 594

F.2d 581, 584 (6th Cir. 1979) (citing Brown v. Allen, 344 U.S. 443, 73 (1953)). See

also O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1

(1999) (finding that “[a]lthough [the language of § 2254] could be read to

effectively foreclose habeas review by requiring a state prisoner to invoke any

possible avenue of state court review, we have never interpreted the exhaustion

requirement in such a restrictive fashion” and “we have not interpreted the

exhaustion doctrine to require prisoners to file repetitive petitions”); Francisco v.

Gathright, 419 U.S. 59, 62-63, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974) (holding that

when a petitioner has previously exhausted his state remedies, the petitioner is not

required to re-exhaust state remedies due to a change in state law); Roberts v.

LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (finding “Congress

had not intended to require repetitious applications to state courts”). In sum, Bethel

does not render Petitioner's previously exhausted claims unexhausted.

Conway, *22-23, (S.D. Ohio Mar. 15, 2023) (Marbley, C.J.).

The record reflects that Petitioner presented a Napue claim regarding Kenneth Law’s

perjured testimony on direct appeal as part of his Fifth Proposition of Law, which was rejected by

the Supreme Court of Ohio as unsubstantiated. Indeed, in its Return of the Writ, Respondent

conceded that Petitioner’s Napue claim is exhausted. ECF No. 81 at PageID# 1112. Petitioner

presented a Brady claim in his successive postconviction petition, which was found procedurally

barred by Ohio Revised Code § 2953.53 by the state appellate court. As explained by this Court’s

previous decisions on this issue, Bethel does not warrant a stay and abeyance for claims that have

already been presented to the state courts.

Despite four previous decisions in this District denying a stay and abeyance for the same

grounds argued here, Petitioner urges the Court to grant his motion, in reliance on Pickens v.

Shoop, No. 1:19-CV-558, 2022 WL 2802411 (S.D. Ohio July 18, 2022) (Sargus D.J.). In Pickens,

District Judge Sargus agreed that Bethel lessened the burden of proof for establishing successive

postconviction jurisdictional requirements and for seeking a new trial based on newly discovered

evidence and granted Pickens’ motion for a stay and abeyance. But critically, unlike here, the

Brady claim that Pickens sought to present in a successive postconviction action had never been

presented to the state courts. Id. at *2. Petitioner also incorrectly attributes to this District a decision

from the Northern District of Ohio, Spaulding v. Shoop, 2022 WL 3566792 (N.D. Ohio Aug. 17,

2022)(Pearson, D.J.). As in Pickens, the stay in Spaulding was granted because the Brady claims

at issue had never been presented to the Ohio state courts.

The fact that Petitioner did not present the state courts with the documents that form the

basis of the proposed amendment to his Petition does not change the conclusion that a stay is

unwarranted. See Carter v. Mitchell, 829 F.3d 455, 466–67 (6th Cir. 2016) (holding that Rhines

v. Weber, 544 U.S. 269 (2005), does not permit stay and abeyance for a petitioner to “exhaust

evidence” to buttress claims already exhausted). See also Richey v. Bradshaw, 498 F.3d 344, 353

(6th Cir. 2007) (“Where the legal basis for [the petitioner’s] claim has remained constant, and

where the facts developed in the district court merely substantiate it, we cannot say that the claim

has been so ‘fundamentally alter[ed]’ from that presented to the state court as to preclude our

review.”).

Despite the Court’s denial without prejudice of Petitioner’s Motion to Amend, the Court,

nevertheless finds Petitioner’s Motion to Stay lacks merit, and it is also denied.4 Nothing in this

decision or the continued unstayed pendency of this case prevents Petitioner from pursuing any

available remedy in state court, but these proceedings will not be held in abeyance in the meantime.

CONCLUSION

Accordingly, for the foregoing reasons:

1. Petitioner’s Motion to Amend (ECF No. 309) is DENIED WITHOUT PREJUDICE.

Within thirty (30) days, Petitioner is to file a motion for leave with a new proposed

amended petition. Petitioner is to include in this proposed amended petition all claims he

intends the Court to consider moving forward.

2. Petitioner’s Motion to Stay (ECF No. 310) is DENIED. Petitioner’s request that his

habeas counsel be authorized to represent him in state court is DENIED as moot.

3. The Honorable Michael H. Watson recently certified for appeal to the Sixth Circuit Court

of Appeals the denial of a motion for a stay and abeyance based on State v. Bethel in

Kinley v. Bradshaw, No. 3:07-cv-345. After the Court rules on Petitioner’s refiled Motion

to Amend, the Court will refrain from setting a scheduling order in this matter, ruling on

any additional substantive matters, or setting any hearings until the Sixth Circuit issues an

opinion in Kinley.

March 14, 2024.

s/ Michael R. Merz

United States Magistrate Judge

4 In the event Petitioner files an acceptable amended petition, the Court’s decision on the Motion to Stay will

remain intact.