DAN AARON POLSTER, District Judge.
Petitioner Freddie McNeill, Jr., has filed in this capital habeas corpus case a Motion to Expand the Record (Doc. 119) and Motion to Amend Habeas Petition (Doc. 120).
McNeill's efforts to develop the Brady and Napue claims underlying the motions at issue here began twenty-two years ago — and a year after McNeill's murder trial — when his post-conviction counsel discovered a police report about his case in the court files of another lawsuit. Below is an account of the claims' long and complex procedural history.
McNeill was convicted and sentenced to death in an Ohio court in 1995 for the aggravated murder of Blake Fulton. The jury found that McNeill shot Fulton after attempting to rob him during a drug transaction. See State v. McNeill, 83 Ohio St.3d 438, 438-39 (Ohio 1998) (summarizing the facts underlying McNeill's conviction).
The State's key witness at trial was Robert Rushinsky. Rushinsky testified that on the evening of the murder, he and Fulton were driving around Lorain looking for crack cocaine to buy, when they came across McNeill, who offered to sell them some. (Doc. 117-4 (Tr. T.) at 58-61.) McNeill joined them and they drove off. (Id. at 62.) McNeill then pointed a gun at them, Rushinsky attested, and demanded they give him money. (Id.) But Fulton refused and Rushinsky had none. (Id. at 63-64.) Rushinsky testified that a heated argument between Fulton and McNeill ensued, culminating in McNeill shooting Fulton point-blank in the head with Rushinsky sitting next to him. (Id. at 65-66.) Rushinsky was the sole adult witness to the crime (four young children playing nearby also saw the shooting). McNeill, 83 Ohio St. 3d at 439.
Rushinsky identified McNeill in court. (Doc. 117-4 (Tr. T.) at 61). After his direct examination, in accordance with then-existing Ohio Criminal Procedure Rule 16(B)(1)(g), defense counsel requested an in camera inspection of any "written or recorded statement" from Rushinsky in the State's possession to determine if any inconsistencies existed between his testimony and the prior statement.
About a year after McNeill's trial, in August 1996, McNeill's post-conviction counsel sent a public records request to the Lorain County Police Department ("LCPD") seeking all records it possessed relating to McNeill and the Fulton murder case. (Doc. 119 at 3; see also Doc. 116-3 at 140, 530-31 (Ex. 15).) McNeill states that in response, the department turned over "some records" to counsel and represented that it had produced all responsive documents. (Doc. 119 at 3; see also Doc. 116-3 at 565 (Ex. 17).)
McNeill explains that post-conviction counsel also examined the state-court record of a claim against the State of Ohio brought by Fulton's family for reparations. (Doc. 119 at 3-4; see also Doc. 68 at 17.) In it, they found a police report summarizing a police interview of Rushinsky the night of the shooting, which had not been "disclosed to McNeill or his counsel at any time." (Doc. 119 at 3; Doc. 116-3 at 139, 527 (Ex. 12 (police report)).)
Soon after, in September 1996, McNeill filed a post-conviction petition in the state trial court, asserting, among other things, a Brady claim based on the police report about the Rushinsky interview, which he asserted was never disclosed to defense counsel at trial but was critical to his defense. (Doc. 116-3 at 137-39.) Most significantly, the report stated that Rushinsky failed to identify McNeill from an initial photo array, although he positively identified him later in the interview from a second photo line-up. (Id. at 527 (Ex. 12).) McNeill argued defense counsel could have used this to undermine Rushinsky's in-court identification of him. (Id. at 138.) The report also included statements Rushinsky made during the interview that McNeill claimed were inconsistent with his trial testimony — such as the color of the gun used, his and Fulton's drug use the night of the murder, and the nature of his relationship with McNeill — and could have been used to further impeach Rushinsky's credibility. (Id.) McNeill requested discovery on the claim. (Id. at 139.)
McNeill also asserted a claim in his post-conviction petition that the State violated his due process rights when it "interfered with [his] attempt to investigate and prepare" his petition, including his Brady claim. (Id. at 139-40.) He again requested more discovery. (Id.)
The trial court denied McNeill's petition and request for discovery and evidentiary hearing in January 1998. (Doc. 116-4 at 155-62.) It rejected his Brady claim on the grounds that a police report is not a "statement" that had to be disclosed under Rule 16(B)(1)(g), and further, prosecutors played for defense counsel at trial a tape recording the Rushinsky statement summarized in the report, as required by that rule. (Id. at 156.) The court of appeals affirmed the trial court's judgment denying McNeill's Brady claim in March 2000. State v. McNeill, 137 Ohio App.3d 34, 41 (Ohio Ct. App. 2000).
In December 2002, McNeill filed in this Court a petition for writ of habeas corpus. (Doc. 21.) His petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2254. As his seventh ground for relief, he asserts the State violated his constitutional rights under Brady by failing to disclose, among other things, the police report on the Rushinsky interview, which noted Rushinsky's failure to identify McNeill from a photo line-up the evening of the shooting and Rushinksy's statements that contradicted his trial testimony about the color of the gun, his and Fulton's drug use the night of the murder, and his relationship with McNeill. (Doc. 21-1 at 22-23.)
In April 2005, McNeill filed a motion for discovery and evidentiary hearing, requesting, among other things, a deposition of the LCPD records custodian to determine if the department had disclosed all records he had previously requested. (Doc. 51 at 18-19.) This Court denied that request on the ground that it was unnecessary, because McNeill already had obtained the LCPD's complete file on his case during his state post-conviction proceedings and did not demonstrate good cause for further discovery other than "mere suspicion." (Doc. 57 at 9-10.)
McNeill renewed his discovery motion a year later, in April 2006, including his request for the LCPD records deposition. (Doc. 68 at 16-18.) This time, he was more specific in explaining why his request was justified, including the circumstances surrounding his prior requests of the LCPD and his discovery of the police report of the Rushinsky interview. (Id. at17.) The Court found McNeill's explanation sufficient cause to suspect the LCPD had not provided him with its complete case file and granted his request to conduct the LCPD records deposition. (Doc. 80 at 7-8.)
In March 2008, McNeill's counsel advised the Court in a "Status Report Regarding Discovery" that the LCPD had produced its file on the Fulton murder. (Doc. 82 at 1.) However, they explained, when counsel went to the LCPD to compare the produced documents to the original records, they discovered eight audiotapes in the file that were not previously produced. (Id.) McNeill's counsel stated that the department "thereafter provided the undersigned counsel with copies of said tapes," and they were "reviewing them with . . . McNeill."
In December of that year, McNeill filed a motion with this Court requesting funds to employ an investigator to further develop his Brady claims. (Doc. 87.) He explained that two of the audiotapes discovered in the LCPD file were not disclosed to his trial counsel. One of those tapes, he stated, recorded a police interview with Rushinsky in which he failed to identify McNeill, possibly for the second time. (Id. at 6.) The other tape contained an interview with Marco Roseboro (also spelled Roseborough), which McNeill argued may have provided an alibi and/or established ineffective assistance of counsel in failing to investigate an alibi. (Id.) The Court granted this request in June 2009. (Doc. 90.)
In September 2011, McNeill filed with the state trial court a motion for leave to file a motion for a new trial raising his Brady claims based on the police report of the Rushinsky interview and the Rushinsky and Roseboro audiotapes. (Doc. 96-1.) In it, he argued that if prosecutors had disclosed to defense counsel the newly discovered second tape and police report showing Rushinsky failed to identify McNeill from a photo array, they could have used it to cross-examine Rushinsky and undermine his identification of him. (Id.) And the audiotape of the Roseboro interview, he asserted, would have supported his alibi at trial. (Id.) McNeill also claimed the suppressed evidence demonstrated that the prosecution violated his due process rights under Napue by allowing Rushinsky to falsely identify him at trial. (Id. at 8.)
McNeill attached as support for his motion an affidavit of his trial counsel, Joseph Grunda. (Doc. 96-1 at 12 (Ex. B).) Grunda averred that the State never informed him that Rushinsky had failed to identify McNeill, and if he had been so advised, he would have "vigorously cross-examined him on that point." (Id.) He further stated that the taped interview of Rushinsky that the State provided at trial "ma[de] no mention of the fact that he was unable to identify anyone from a photo array[,] [n]or was [he] ever advised that in fact there were two taped interviews of Mr. Rushinsky." (Id.) And he attested that the State never told him about the taped Roseboro interview either. (Id.)
McNeill did not submit to the state court copies of the audiotapes as exhibits to his motion. Instead, he informed the court in his motion that "[t]he original of the audio tape is currently in possession of the State but a defense copy can be provided at hearing hereof by the defense." (Id. at 5.) This proffer is consistent with Rule 33(A)(6) of the Ohio Rule of Criminal Procedure, which provides that "[w]hen a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given." Ohio R. Crim. P. 33(A)(6).
In February 2012, McNeill filed a motion asking this Court to stay his habeas action and hold it in abeyance pending the exhaustion of the Brady and Napue claims raised in his state-court motion for a new trial. (Doc. 96.) The Court granted the motion. (Doc. 99.) It found McNeill established good cause for his failure to exhaust his claims in state court, as he had diligently sought information regarding these claims since 1996 and only obtained the audiotapes in 2008 after this Court ordered discovery, and the claims based on the Rushinsky tape were not plainly meritless.
The state courts denied McNeill's motion for leave to file a motion for a new trial. The trial court first found the motion untimely, as McNeill did not adequately explain the reason for his delay in seeking the new trial. (Doc. 118-1 at 229-30.) It then concluded that, in any event, the new evidence did not establish a "strong probability that it would change the result in a new trial." (Id. at 232.) It reasoned:
(Id. at 231-32.)
McNeill appealed the trial court's judgment. He argued that the trial court violated his due process rights when it sua sponte dismissed his motion without notifying all parties. (Doc. 118-1 at 285.) He requested an evidentiary hearing, or at a minim, a "remand for additional proceedings" to permit him "to respond and be heard on the trial court's diligence finding. . . ." (Id. at 298.) The state appellate court affirmed the trial court's decision, agreeing with McNeill that the State "did not challenge [his] request" on the basis of diligence, but holding that parties must respond to all potential arguments and McNeill did not adequately explain the cause of his delay in bringing the motion. (Id. at 361-62.) The Ohio Supreme Court declined jurisdiction over McNeill's appeal of that ruling. (Id. at 458, 467.)
Having exhausted his new Brady and Napue claims in state court, McNeill moved to reinstate his case on this Court's docket in August 2017. (Doc. 107.)
McNeill now has filed a Motion to Amend Habeas Petition (Doc. 120) and Motion to Expand the Record (Doc. 119). He seeks to supplement his Brady claim and add a new claim under Napue. (Doc. 120 at 1.) McNeill also moves to expand the record to include evidence that supports those claims. (Doc. 119 at 1.)
McNeill's proposed supplements to his Brady claim are based on the three newly discovered audiotapes. The first tape is of the Rushinsky interview the night of the murder with the failed identification of McNeill. (Doc. 120 at 4; Doc. 120-1.) However, McNeill explains that it now appears Rushinsky's failure to identify McNeill in the photo array was not documented in a second tape as previously thought, but was part of the same interview recorded on the same tape prosecutors played at trial at the in camera hearing. (Id. at 4 at n.1.) He now contends
(Doc. 120-2 at 1-2 (footnote omitted).) The second tape, McNeill alleges, is of a later, separate interview of Rushinsky, in which a detective corrects his description of the hat McNeill allegedly was wearing at the time of the offense. (Doc. 120 at 4, 7.) And the third tape recorded the Roseboro interview, which he argues supports his alibi. (Id.) McNeill claims the tapes bolster his Brady claim that the prosecution failed to disclose material evidence that defense counsel could have used to impeach the testimony of the State's key witness, Rushinsky, and undermine his in-court identification of McNeill. (Id. at 6-7.)
In addition, McNeill seeks to add a related Napue claim based on the prosecution creating a materially false impression regarding Rushinsky's credibility. (Id. at 7; Doc. 120-2.) He alleges the prosecutors failed to play the complete tape of the Rushinsky interview, which included his initial failure to identify McNeill, and never disclosed the second Rushinsky interview to defense counsel at trial at all. (Id.)
Respondent opposes both motions. (Docs. 121, 125.)
Federal Civil Rule 15 allows a habeas petitioner to amend or supplement a petition once as a matter of course within twenty-one days after serving it. Fed. R. Civ. P. 15(a)(1)(B); see also 28 U.S.C. § 2242 (habeas actions "may be amended or supplemented as provided in the rules of procedure applicable to civil actions"); Fed. R. Civ. P. 81(a)(4) (federal civil rules "apply to proceedings for habeas corpus"); R. Governing Section 2254 Cases 12 (federal civil rules apply in habeas cases "to the extent that they are not inconsistent with any statutory provisions or [the habeas] rules"). Here, that time expired more than fifteen years ago. (See Doc. 21.)
Rule 15 permits amendment after that initial time period only with the opposing party's written consent or the court's leave. Fed. R. Civ. P. 15(a)(2). It instructs courts to "freely give leave when justice so requires." (Id.) In determining whether to grant leave to amend, courts should consider "`[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment. . . .'" Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). "Delay by itself is not sufficient reason to deny a motion to amend[,]" while "[n]otice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted." Id. at 341-42 (quoting Brooks, 39 F.3d at 130).
Federal habeas corpus actions, however, also are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). A motion to amend a habeas petition, therefore, "will be denied where it is filed after that period expires unless the proposed amendment relates back to the date of the original pleading within the meaning of [Rule 15(c)]." Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008). Rule 15(c)(1)(B) permits relation-back of a proposed amendment to a habeas petition when both the pleading and the proposed amendment arise out of the same "conduct, transaction, or occurrence." Fed. R. Civ. P. 15(c)(1)(B). A proposed amendment may relate back to a timely petition "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts." Mayle v. Felix, 545 U.S. 644, 664 (2005). A claim will not relate back, however, to the extent that it "asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650.
Respondent opposes McNeill's proposed amendments on the grounds that the new claims: (1) do not relate back to his original petition; and (2) are futile, as they are procedurally defaulted and plainly meritless. (See Doc. 125 at 3.)
Brady claim based on Rushinsky tapes. Despite his general challenge to the relation back of McNeill's proposed amendments, Respondent concedes that McNeill's proposed amendments to his Brady claim based on the Rushinsky tapes "may not run afoul of the statute of limitations" and "arguably relate[] back to the original petition." (Id. at 5.)
Relation back is permitted "when a motion to amend under Rule 15(c) expands on the facts supporting a claim in the original petition." Hill v. Mitchell, 842 F.3d 910, 942 (6th Cir. 2016) (citing Cowan v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011)). McNeill's original Brady claim alleges that the prosecution failed to comply with its duty to disclose exculpatory and impeachment evidence when it did not disclose to the defense a police report summarizing the police's interview with Rushinsky, in which he initially failed to identify McNeill from an initial photo array and made other statements that were inconsistent with his trial testimony — all material impeachment evidence against Rushinsky, the State's key witness. (Doc. 21 at 22-23.) McNeill's proposed amendments to that claim expand on the facts supporting it with additional evidence involving police interviews of the same witness, but in a different format of audiotapes rather than police reports, which if disclosed, would have provided defense counsel with powerful evidence to attack Rushinsky's credibility on cross-examination. (See Doc. 120-1 at 3-7.) These amendments do not assert a new claim supported by facts that differ in time and type, but "clarif[y] or amplif[y] a claim alleged in the original petition," and therefore relate back to McNeill's original petition. Hill, 842 F.3d at 942 (citing Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001)).
Roseboro tape. Respondent is silent on whether McNeill's proposed amendment to supplement his Brady claim with allegations based on the Roseboro tape relates back to his original petition. (See Doc. 125 at 13-14.) But the Court agrees with McNeill that this evidence of an additional police interview of a witness who had information supporting his alibi relates back to his original Brady claim as a further allegation that the prosecution suppressed material evidence relating to the identification of the assailant. (See Doc. 120 at 9.)
Napue claim. Respondent argues that McNeill's proposed Napue claim does not relate back to his original petition. (Doc. 125 at 14-15.) He maintains that while Brady and Napue claims are "related," they are "separate and distinct" legal theories, in that a Napue claim requires a showing of the State's intent, or knowing use of false testimony, and a Brady claim does not. (Id.) But that is not the standard for relation back. The Sixth Circuit has held that "where the parties are the same, . . . an amendment which adds another claim arising out of the same transaction or occurrence does relate back to the date of the original complaint." Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973).
And here, the proposed Napue claim stems from essentially the same facts McNeill alleged in his original Brady claim — namely, the prosecution's suppression of information about Rushinsky's interview that contradicted his trial testimony in key respects, including his incourt identification of McNeill.
Futility. Respondent devotes much of his argument to the futility of McNeill's proposed amendments, because they are plainly meritless and procedurally defaulted. (Doc. 125 at 5-11.) A proposed amendment, however, must be frivolous or legally insufficient on its face to warrant denial of leave to amend on that ground. See, e.g., Buder v. Merrill Lynch Pierce, Fenner & Smith, Inc., 644 F.2d 690, 695 (8th Cir. 1981) (a party's motion to amend should be dismissed on the merits "only if [the amendments] assert clearly frivolous claims or defenses"); see also 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487, at 637 (3d ed.). The Court cannot conclude from the face of McNeill's proposed amendments that they are clearly frivolous or legally insufficient.
Prejudice. Respondent does not even mention, however, the most critical factors in determining whether to grant leave to amend: notice and substantial prejudice to the opposing party. Coe, 161 F.3d at 341. And the Court can find no prejudice in permitting McNeill to amend his petition as he requests. Respondent has long been aware of McNeill's Brady and Napue claims, and little additional work on her part should be required to address them.
Accordingly, McNeill's motion to amend is granted.
McNeill also asks the Court to expand the record to include the Rushinsky and Roseboro audiotapes supporting his proposed amendments. (Doc. 119.) Rule 7 of the Rules Governing Section 2254 Cases confers on district courts the authority to expand the record with "additional materials relating to the petition." R. Governing Section 2254 Cases 7(a). "The judge may require that these materials be authenticated." Id. According to the advisory committee's notes on Rule 7, the purpose of the rule is not only to enable the district court to dispose of petitions not dismissed on the pleadings without the time and expense of an evidentiary hearing, but also to assist the district court in determining whether an evidentiary hearing is warranted. Id., advisory committee's note. The decision whether to order an expansion of the record under Rule 7 generally falls within the sound discretion of the district court judge. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988).
Motions to expand the record under Rule 7 must meet the standards of AEDPA's § 2254(e)(2), although that provision is expressly directed only at evidentiary hearings. Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam) ("Those same restrictions [of § 2254(e)(2)] apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing." (emphasis original)). Section 2254(e)(2) precludes an evidentiary hearing "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings" unless the applicant satisfies certain conditions.
Under AEDPA, therefore, a prisoner may introduce new evidence in support of a claim in the district court "only if [the prisoner] was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed in § 2254(e)(2) were met." Holland, 542 U.S. at 652-53. A prisoner is at fault in failing to develop the evidence if there is a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The required diligence is "a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Id. at 435. "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437. "[C]omity is not served by saying a prisoner `has failed to develop the factual basis of a claim' where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2)." Id.
Without addressing § 2254(e)(2), Respondent argues the Court should not expand the record to include the audiotapes because: (1) McNeill did not make the tapes part of the state-court record, but "purposely withheld them, assuming he would be granted an evidentiary hearing"; (2) he did not diligently pursue "his claims" in state court; and (3) this Court's consideration of the tapes "may ultimately" be precluded under Cullen v. Pinholster, 563 U.S. 170, 181 (2011), which limited a habeas courts' review of certain claims to the record that was before the state court that adjudicated the claim on the merits. (Doc. 121 at 2.) McNeill replies that he was diligent in his efforts to present the audiotapes to state courts in support of his Brady and Napue claims. (Doc. 123 at 2-8.) He explains he offered to submit the audiotapes at an evidentiary hearing in state court in his motion for leave to file a motion for a new trial, but the courts improperly denied his motion on timeliness grounds with no evidentiary hearing. (Id.)
The Court finds, as it did in connection with McNeill's stay-and-abeyance motion, that McNeill was diligent in developing this evidence in state court. McNeill sought information regarding his Brady claims since 1996 and discovered the audiotapes in March 2008 only after this Court granted him discovery. In those twelve years of repeated requests for police records, the State never voluntarily produced the tapes. After finding the tapes, McNeill moved for, and this Court granted in June 2009, funds for an investigator to further research his Brady claims. In September 2011, twenty-seven months later, he initiated new state post-conviction proceedings, raising a Brady claim based on the Rushinsky and Roseboro tapes and offering to present the tapes at an evidentiary hearing in accordance with state procedural rules.
McNeill has therefore demonstrated the requisite diligence in attempting to develop the factual basis of his Brady and Napue claims and in presenting the audiotapes supporting those claims in state court, and he may introduce the Rushinsky and Roseboro audiotapes into the record without satisfying § 2254(e)(2)'s conditions. See Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir. 2007) ("Getsy sought to develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus demonstrated diligence in accordance with § 2254(e)(2)."); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) ("In the case before us, petitioner pursued his ineffective assistance of appellate counsel claim with proper diligence, raising it first—albeit prematurely—in his petition for post-conviction relief and then in his motion for delayed reconsideration. Both of these pleadings requested an evidentiary hearing, which was never afforded by the Ohio courts. Consistent with Williams v. Taylor, therefore, we conclude that petitioner is not precluded from an evidentiary hearing as he exercised the necessary diligence in attempting to establish the factual record in state court."); and Hoffner v. Bradshaw, No. 3:05 CV 687, 2007 WL 3171631, at * 3 (N.D. Ohio Oct. 29, 2007) (Gwin, J.) ("Petitioners who request an evidentiary hearing in the appropriate state court proceedings are sufficiently diligent, even when the state court fails to grant the request.") (citing Greer, 264 F.3d at 681)). McNeill's motion to expand the record is granted.
For the reasons set forth above, the Court grants McNeill's Motion to Expand the Record (Doc. 119) and Motion to Amend Habeas Petition (Doc. 120). Pursuant to Rule 7(a) of the Rules Governing Section 2254 Cases, the Court orders Respondent to authenticate the Rushinsky and Roseboro audiotapes before submitting them to this Court.
IT IS SO ORDERED.
28 U.S.C. § 2254(e)(2).
