United States District Court, D. Massachusetts
JOHN E. STOTE, Petitioner,
GARY RODEN, Respondent.
MEMORANDUM & ORDER
Talwani United States District Judge.
before this court are Respondent's Motion to Strike
Petitioner's Exhibits to Petitioner's Amended
Memorandum In Support of the Amended Petition for Writ of
Habeas Corpus [“Motion to Strike”] [#163],
and Petitioner's Motion for Leave to File a
Supplemental Memorandum In Support of Petitioner's
Opposition to Respondent's Motion to Strike Exhibits and
Petitioner's Supplemental Memorandum [“Motion
for Leave to File Supplemental Memorandum”] [#168]. For
the reasons that follow, both motions are ALLOWED IN PART AND
DENIED IN PART.
Motion for Leave to File Supplemental Memorandum
two weeks after filing his opposition to Respondent's
Motion to Strike, Petitioner moved for leave to file
a supplemental memorandum in opposition, “as a result
of further discussions” between Petitioner and his
counsel. Mot. Leave File Suppl. Mem. [#168]. His motion sets
forth at pages 1 through 5 the state procedural points
Petitioner seeks to bring to the attention of the court and
will be considered by the court as a supplemental memorandum
in support of Petitioner's opposition. No further
supplemental memorandum need be filed. Accordingly,
Petitioner's Motion for Leave to File Supplemental
Memorandum [#168] is ALLOWED IN PART and DENIED IN PART.
Motion to Strike
Petitioner filed his Reply to Respondent's Memorandum
of Law in Opposition to Petition for a Writ of Habeas
Corpus, [#162], Respondent moved to strike the exhibits
submitted in support of that memorandum. Mot. Strike [#163].
The exhibits to which Respondents objects fall into three
categories: (1) exhibits already included in the
Supplemental Answer [“S.A.”] [#39]; (2)
exhibits included in Petitioner's Motion for Leave to
Expand the Record [#74]; and (3) additional exhibits.
of a state court's decision under 28 U.S.C. §
2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011); Garuti v. Roden, 733 F.3d 18, 22 (1st
Cir. 2013). This limitation rests on the idea that such
review “requires an examination of the state-court
decision at the time it was made. It follows that the record
under review is limited to the record in existence at that
same time i.e., the record before the state
court.” Pinholster, 563 U.S. at 182-83 (noting
that it would otherwise “be strange to ask federal
courts to analyze whether a state court's adjudication
resulted in a decision that unreasonably applied federal law
to facts not before the state court”). The same
limitation applies to review under § 2254(d)(2).
Garuti, 733 F.3d at 23.
expansion of the record is allowed under Rule 7 of the Rules
Governing Section 2254 Cases, a petitioner must first show
that the conditions set forth in § 2254(e)(2) are met.
See Holland v. Jackson, 542 U.S. 649, 652-53 (2004)
(per curiam) (stating that the restrictions in §
2254(e)(2) “apply a fortiori when a prisoner seeks
relief based on new evidence without an evidentiary
hearing”); Mark v. Ault, 498 F.3d 775, 788
(8th Cir. 2007). Under § 2254(e)(2), a petitioner who
“failed to develop the factual basis of a claim in
State court proceedings” shall not receive an
evidentiary hearing unless he “shows that the claim
relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable; or a factual predicate that could not
have been previously discovered through the exercise of due
diligence.” Further, a petitioner must show that
“the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for the
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.”
Exhibits Contained in the Supplemental Answer [#39]
1, 3-5, 9-12, 16, and 19-20 are also contained in the
Supplemental Answer [#39]. See S.A. 301-12
(Ex. 1); S.A. 1113-14 (Ex. 3); S.A. 1111-12 (Ex. 4); S.A.
1119-20 (Ex. 5); S.A. 641-43, 671 (Ex. 9); S.A. 671-72,
745-46 (Ex. 10); S.A. 665, 672, 747-48 (Ex. 11); S.A. 673,
749-50 (Ex. 12); S.A. 104-07 (Ex. 16); S.A. 611-15, 645 n. 1
(Ex. 19); S.A. 644-54 (Ex. 20). These exhibits are part of
the record before the state court, and are properly
considered by the court here, regardless of whether they are
“cumulative.” See Pinholster, 563 U.S.
at 182. Further, Exhibit 2 is a printout of Commonwealth
v. Stote, 456 Mass. 213 (2010), a state court decision
upon which the Petition [#1] is based. Accordingly,
Respondent's Motion to Strike [#163] is DENIED
with respect to Exhibits 1-5, 9-12, 16, and 19-20.
Exhibits Referenced in Petitioner's Motion for Leave to
Expand the Record [#74]
previously sought to expand the record to include, among
other documents, Exhibits 6, 13-15, and 18. Motion for
Leave to Expand the Record [#74]. The judge to whom this
case was previously assigned denied that motion, holding that
the proposed exhibits were inadmissible under § 2254(d),
and further, that Petitioner had failed to meet the
requirements for an evidentiary hearing and expansion of the
record under § 2254(e)(2). Elec. Order [#94]. This court
subsequently denied Petitioner's request for
reconsideration of that order. Mem. & Order [#127].
Petitioner has not presented new grounds for this court to
overturn those prior orders. Accordingly, Respondent's
Motion to Strike [#163] is ALLOWED with respect to
Exhibits 6, 13-15, and 18.
three remaining exhibits-Exhibits 7-8 and 17-were not
included in the Supplemental Answer [#39], the
subject of Petitioner's Motion for Leave to Expand
the Record [#74], or otherwise previously presented to
this court. As an initial matter, the documents are not, as
Petitioner asserts, part of the record simply because they
were produced during pre-trial discovery. As noted above, the
focus of analysis under 28 U.S.C. § 2254(d) is
“what the state court knew and did” when it made
its decision. Pinholster, 563 U.S. at ...