682 F.Supp.3d 740
D.S.D.2023Background
- Petitioner Briley Piper is a death-row inmate resentenced to death after a 2011 jury sentencing; mitigation evidence at resentencing included ADHD, substance use, youth, and a social-history investigation but not a formal FASD or neuropsychological workup.
- State postconviction counsel (Matthew Kinney) represented Piper in a 2016 state habeas proceeding but did not develop or present a claim that trial/resentencing counsel were ineffective for failing to investigate or present evidence of brain damage or Fetal Alcohol Spectrum Disorder (FASD).
- Piper filed a federal habeas petition under 28 U.S.C. § 2254 and moved for an order allowing four experts to evaluate him in prison (neuropsych testing, qEEG, and FASD evaluation) to develop new evidence supporting his ineffective-assistance claim and to excuse his state-court default under Martinez.
- Respondent argued § 2254(e)(2) and the Supreme Court decisions in Shinn v. Ramirez and Shoop v. Twyford bar the district court from permitting or considering such extra-record evidence unless narrow statutory exceptions are met; Respondent also disputed that Kinney’s performance severed the attorney-client relationship or amounted to abandonment.
- The district court applied Shinn and Shoop, concluded Piper is "at fault" under § 2254(e)(2) (Kinney did not abandon Piper and no constitutional right to effective state postconviction counsel exists that would attribute Kinney’s failures to the State) and denied the motion for testing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2254(e)(2) permits development or consideration of new neuropsychological/FASD evidence after petitioner failed to develop the record in state court | Piper: § 2254(e)(2) should not bar testing because state habeas counsel's "extreme negligence" excused the omission and testing would show cause and prejudice under Martinez | Respondent: Shinn and Shoop require that petitioner not be "at fault"; § 2254(e)(2) bars new evidence here because statutory exceptions are not met | Denied. Court held Piper is at fault under § 2254(e)(2); new testing and affidavits cannot be considered absent meeting statutory exceptions |
| Whether Kinney's conduct severed the attorney-client agency relationship (Maples/Holland theory) | Piper: Kinney's alleged extreme negligence (failure to investigate red flags for FASD) amounted to abandonment or breach of loyalty, so counsel's failures should not be imputed to him | Respondent: Kinney actively represented Piper (met, litigated, filed motions, attended hearings); no abandonment or conflict that severs agency | Denied. Court found Kinney did not abandon Piper and his errors did not sever the agency relationship |
| Whether Martinez or a constitutional right to effective postconviction counsel makes state responsible for Kinney's failures | Piper: Martinez (and related authority) create grounds to attribute counsel's failure to the State or otherwise excuse default | Respondent: Martinez is an equitable (not constitutional) exception; Eighth Circuit precedent holds no constitutional right to effective counsel in state postconviction proceedings | Denied. Court followed Eighth Circuit precedent: no constitutional right and Martinez does not negate § 2254(e)(2) |
| Whether an evidentiary hearing should be held to resolve factual disputes about counsel's conduct and § 2254(e)(2) applicability | Piper: factual disputes about Kinney's conduct justify a hearing to determine abandonment/fault | Respondent: Shinn/Shoop bar hearings that facilitate development of evidence barred by § 2254(e)(2); a hearing would be futile | Denied. Court held no live factual dispute that would avoid § 2254(e)(2); an evidentiary hearing would be improper and futile |
Key Cases Cited
- Shinn v. Ramirez, 142 S. Ct. 1718 (2022) (§ 2254(e)(2) bars federal evidentiary development when petitioner is at fault; Martinez exception does not avoid § 2254(e)(2))
- Shoop v. Twyford, 142 S. Ct. 2037 (2022) (district courts must determine § 2254(e)(2) applicability before facilitating development of new evidence; All Writs Act cannot override AEDPA limits)
- Martinez v. Ryan, 566 U.S. 1 (2012) (equitable exception allowing cause to excuse default for claims of ineffective trial counsel when state procedure makes initial-review collateral proceedings the likely forum and counsel was ineffective or absent)
- Maples v. Thomas, 565 U.S. 266 (2012) (attorney abandonment can sever agency relationship and excuse procedural defaults in extraordinary circumstances)
- Holland v. Florida, 560 U.S. 631 (2010) (attorney misconduct may in extraordinary cases justify equitable tolling; degree and attribution of misconduct matter)
- Coleman v. Thompson, 501 U.S. 722 (1991) (generally no constitutional right to counsel in state postconviction proceedings; attorney errors usually imputed to petitioner)
- Trevino v. Thaler, 569 U.S. 413 (2013) (extends Martinez where state procedures make direct-appeal ineffective-assistance claims unlikely to be raised)
- O'Sullivan v. Boerckel, 526 U.S. 838 (1999) (exhaustion requires presentation of federal claims to the state courts)
- Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion and availability of state remedies principles)
- Wooten v. Norris, 578 F.3d 767 (8th Cir. 2009) (attorney malfeasance/disbarment did not relieve petitioner of fault for failure to develop state-court record under AEDPA)