Jackson v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAREEM JACKSON,

Petitioner,

v. Case No. 2:20-cv-3934

CHIEF JUDGE ALGENON L. MARBLEY

WARDEN, Magistrate Judge Kimberly A. Jolson

Chillicothe Correctional Institute,

Respondent.

OPINION AND ORDER

Petitioner, a prisoner sentenced to death by the State of Ohio, has before this Court a

numerically successive Habeas Petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This matter

is before the Court for consideration of Respondent’s Motion to Transfer the Doc 1 Habeas

Petition to the Sixth Circuit as a Second Petition Due to Lack of Subject Matter Jurisdiction

(ECF No. 7); Petitioner’s Response (ECF No. 8); and Respondent’s Reply (ECF No. 9). For the

reasons that follow, the Court agrees with Respondent that the instant petition must be

transferred as an unauthorized second or successive petition.

I. BACKGROUND

Petitioner was convicted of aggravated murder and sentenced to death out of Franklin

County on March 6, 1998. That judgment has already been the subject of a full round of habeas

corpus proceedings. Petitioner filed a habeas corpus petition in the United States District Court

for the Southern District of Ohio, Eastern Division, which was assigned to the Honorable

Gregory L. Frost. Judge Frost denied that petition on September 28, 2007. Jackson v.

Bradshaw, S.D. Ohio Case No. 2:03-cv-983, 2007 WL 2890388 (S.D. Ohio Sep. 28, 2007). The

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Court of Appeals for the Sixth Circuit affirmed the district court’s opinion, Jackson v. Bradshaw,

681 F.3d 753 (6th Cir. 2012), and the United States Supreme Court denied certiorari, Jackson v.

Robinson, 586 U.S. 1145 (2013).

On December 8, 2014, Petitioner filed what he styled as a “Motion for Independent

Relief” alleging that this Court had caused a miscarriage of justice when it based its denial of a

claim of ineffective assistance of trial counsel on an erroneous assumption of facts not in the

record. (Case No. 2:03-cv-983, ECF No. 97.) In determining that Petitioner’s filing did not

qualify as a motion for independent relief, Judge Frost construed the filing as an unauthorized

second or successive second-in-time petition and transferred it to the Sixth Circuit for the

required authorization. (Id., ECF No. 104.) The Sixth Circuit denied authorization on January

19, 2016. (Id., ECF No. 105.) Petitioner also filed a motion for authorization for federal counsel

to appear in ancillary state proceedings (Id., ECF No. 107), which the Honorable George C.

Smith, due to the retirement of Judge Frost, denied on April 26, 2017 (Id., ECF No. 112), and

again on May 8, 2017 upon reconsideration (Id., ECF No. 117).

Petitioner filed what amounted to a third-in-time petition on March 14, 2018, which was

assigned to the Honorable Timothy S. Black in the Western Division of the Southern District of

Ohio. (Case No. 2:18-cv-215.) Petitioner argued that his death sentence was unconstitutional

under a retroactive application of the Supreme Court’s decision in Hurst v. Florida, 136 S.Ct.

616 (2016). Judge Black dismissed that petition on October 27, 2020 upon Petitioner’s motion

for voluntary withdrawal. (Id., at ECF No. 18.)

Petitioner filed the instant fourth-in-time petition on August 4, 2020, raising on the basis

of previously unavailable evidence claims that material, exculpatory evidence was withheld in

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violation of Brady v. Maryland, 373 U.S. 83 (1963); and that Petitioner’s rights to due process

and a fair trial were violated by false and coerced testimony of Ivana King in violation of Napue

v. Illinois, 360 U.S. 264 (1959). (ECF No. 1-2, at PageID 77-80.) He argues in a third claim that

Ohio’s successor postconviction statute as applied violates the Supremacy Clause because it

imposes a higher burden of proof than Constitutional precedent requires. (Id. at PageID 112-16.)

Citing Panetti v. Quarterman, 551 U.S. 930, 944 (2007), and Stewart v. Martinez-Villareal, 523

U.S. 637, 643 (1998), Petitioner asserts that these claims only recently ripened, through the

disclosure and discovery of previously suppressed evidence, and could not have been raised

earlier. (ECF No. 1-2, at PageID 40-53.)

On August 5, 2020, Respondent filed a motion to transfer this petition to the Sixth

Circuit. (ECF No. 7.)

II. STANDARD OF REVIEW

With respect to the filing of second or successive habeas corpus petitions, 28 U.S.C. §

2244(b) provides as follows:

(1) A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed

unless—

(A) the applicant 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

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence

as a whole, would be sufficient to establish by clear and convincing evidence that,

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but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

28 U.S.C. § 2244(b).

III. LAW AND ANALYSIS

The issue for the Court to determine is whether the instant petition is a “second or

successive application” within the meaning of § 2244(b). If it is, then the Court must transfer it

to the Sixth Circuit as an unauthorized second or successive application. See In re Sims, 111

F.3d 45, 47 (6th Cir. 1997). If it is not, then the Court has jurisdiction to address the claims

raised therein. In re Smith, 690 F.3d 809, 810 (6th Cir. 2012).

The Supreme Court has made clear that not all petitions filed subsequent to a prior

petition are “second or successive” applications within the meaning of § 2244(b). Panetti v.

Quarterman, 551 U.S. 930, 944 (2007); Steward v. Martinez-Villareal, 523 U.S. 637, 642

(1998). As a general rule, a petition targeting the same state court judgment challenged by a

prior petition is a second or successive application. See Burton v. Stewart, 549 U.S. 147, 153

(2007); Harris v. Warden, Southern Ohio Correctional Facility, No. 1:12-cv-261, 2013 WL

492993, at *4 (S.D. Ohio, West. Div. Feb. 7, 2013). That said, if a subsequent petition asserts

claims that challenge the same judgment as a prior petition, the subsequent petition is not

“second or successive” if the claims are newly ripe. In Panetti, the Supreme Court found that the

petitioner’s claim that he was mentally incompetent to be executed, raised for the first time in a

subsequent petition, did not render the petition successive because that claim would have been

unripe had the petitioner raised it in his prior petition. 551 U.S. at 947. Similarly, the Supreme

Court in Stewart ruled that a second-in-time petition raising a claim of incompetency to be

executed should be construed as a first petition, where the original petition was dismissed as

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premature. 523 U.S. at 643. In Slack v. McDaniel, 529 U.S. 473, 478, 487 (2000), the Supreme

Court held that a second-in-time petition was not successive within the meaning of § 2244(b)

because the prior petition was dismissed as unexhausted.

Respondent argues that the instant petition challenges the same state court judgment that

the first petition challenged. (ECF No. 7, at PageID 161.) Respondent continues that the instant

petition is an unauthorized second or successive petition because the new claims it asserts, based

on new evidence, are the types of claims expressly contemplated and addressed by the habeas

statute in § 2244(b)(2)(B) that require authorization from the court of appeals. (Id. at PageID

161-62.)

Petitioner responds with arguments for why the instant petition is not second or

successive, and thus is not subject to the successor petition gateway provisions set forth in §

2244(b)(2)(B), which the Court addresses more fully below. (ECF No. 8, at PageID 165-68.)

Petitioner argues in the alternative that he has made a prima facie case of satisfying §

2244(b)(2)(B)’s requirements for the pursuit of a successive petition. (Id. at PageID 169-71.) To

that point, Petitioner asserts that Respondent’s interpretation of § 2244(b)(2) gives rise to

suspension-of-the-writ issues, and encourages a collision between the AEDPA and a prisoner’s

right to habeas review. (Id. at PageID 172.)

In reply, Respondent simply asserts that Petitioner acknowledges that In re Wogenstahl,

902 F.3d 621 (6th Cir. 2018) requires transfer of the instant petition, and that Petitioner has not

provided ample justification for the Court to ignore Wogenstahl as wrongly decided. (ECF No.

9, at PageID 176-77.)

For the reasons that follow, the Court agrees with Respondent. In re Wogenstahl requires

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transfer of the instant petition, and Petitioner fails to demonstrate otherwise.

In In re Wogenstahl, the Sixth Circuit considered whether to authorize a numerically

second petition raising Brady and trial counsel ineffectiveness claims. The Sixth Circuit

acknowledged that a numerically second petition is not “second or successive” within the

meaning of 28 U.S.C. § 2244(b) to the extent that it asserts claims whose factual predicates arose

after the filing of the original petition. 902 F.3d at 627 (citing In re Jones, 652 F.3d 603, 605

(6th Cir. 2010)). Acknowledging that courts apply the “abuse of writ” standard to determine

whether a second-in-time petition is “second or successive,” the Sixth Circuit explained that a

petition is “second or successive” if it raises a claim that could have been raised in the initial

petition but was not, either due to deliberate abandonment or inexcusable neglect. 902 F.3d at

627 (citing In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006)). The Sixth Circuit also explained

that a petition is not “second or successive” if it asserts a ground that was not ripe at the time the

initial petition was filed—in other words, if the events giving rise to the claim not yet occurred at

the time of the filing of the initial petition. 902 F.3d at 627 (citing In re Tibbetts, 869 F.3d 403,

405 (6th Cir. 2017)).

The Sixth Circuit concluded that the claims asserted in Wogenstahl’s numerically second

petition rendered it “second or successive” because they attacked the same state court judgment

that the initial petition attacked, but were not asserted in the prior petition. 902 F.3d at 627. The

Sixth Circuit also concluded that the claims were not unripe:

[B]ecause the purported Brady violations and defense counsel’s alleged

ineffectiveness—the predicates underlying Wogenstahl’s current claims—had

already occurred when he filed his petition, although Wogenstahl was unaware of

these facts, see In re Jones, 652 F.3d at 604-05. Instead, Wogenstahl’s claims fall

within the scenario contemplated by § 2244(b)(2)(B). He filed a previous habeas

petition and is now raising claims he did not raise in his first petition. 28 U.S.C. §

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2244(b)(2). Furthermore, he relies on facts that he only recently discovered. Id.

at § 2244(b)(2)(B)(i). Thus, Wogenstahl’s petition is both second-in-time and

second or successive, and he must therefore pass through the gatekeeping

mechanism of § 2244(b)(2)(B).

Wogenstahl, 902 F.3d at 627-28 (citing In re Coley, 871 F.3d 455, 457 (6th Cir. 2017)).

Ultimately, the Sixth Circuit granted Wogenstahl authorization to file his successive petition.

The Sixth Circuit reinforced this “ripeness” position one month later in In re Keith, No.

18-3544, 2018 WL 8807240 (6th Cir. Oct. 26, 2018). There, the Sixth Circuit was presented

with a successively filed petition asserting a Brady violation based on newly discovered

impeachment evidence concerning a forensic scientist who had testified for the state, as well as

the prosecution’s disregard of a subpoena for telephone logs that would have contradicted the

state’s theory of the case and undermined the credibility of its key witness. 2018 WL 8807240,

at *1. In finding the new petition to be second or successive under 28 U.S.C. § 2244(b)(3)(A),

the Sixth Circuit explained, “[t]his Court recently held that Brady claims become ripe when the

alleged violations occurred, even if the petitioner was unaware of the Brady violations at the time

he filed his previous habeas petition.” Id. at *2 (citing Wogenstahl, 621 F.3d at 627-28). As in

Wogenstahl, the Sixth Circuit granted authorization for Keith to file his successive petition.

Wogenstahl amplifies that there is an elemental distinction between claims that were not

ripe, not exhausted, or not available at the time a prior petition was filed; and claims that are

based on a factual predicate that was not previously discovered or discoverable. Section

2244(b)(2)(B) expressly speaks to the latter and deems them “second or successive.” Petitioner’s

claims fall into this category.

Noting that the Sixth Circuit and other courts have used the pre-AEDPA abuse-of-the-

writ standard for determining whether a subsequent petition is “second or successive,” Petitioner

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asserts that no abuse of the writ has been alleged here. (ECF No. 8, at PageID 165.) Petitioner’s

argument misses the mark. Although there is no evidence that Petitioner withheld the claims he

raises in the instant application out of a desire to vex, harass, or delay—the type of behavior that

the “abuse of the writ” doctrine targets--that fact is not dispositive. What is dispositive, as

Wogenstahl makes clear, is the fact that it was not an event that had yet to occur that precluded

Petitioner from raising these claims in his initial petition, but rather, a factual predicate that did

exist at the time of the prior petition, but was undiscovered and purportedly undiscoverable.

In an attempt to escape the reach of Wogenstahl, Petitioner argues that diligence should

be the focus when determining whether his newly asserted claims were unripe at the time the

original petition was filed. (ECF No. 8, at PageID 166-67). Noting that even the state appellate

court’s decision affirming the procedural dismissal of Petitioner’s successor postconviction

action assumed that Petitioner had acted diligently in discovering and raising his Brady and

Napue claims, Petitioner argues that those claims only became ripe once the prosecutors

disclosed the exculpatory evidence. In so arguing, Petitioner acknowledges that his definition of

“ripeness” runs afoul of Wogenstahl (Id. at PageID 167, n.4), but then urges the Court, without

offering substantive reasoning, to ignore Wogenstahl as “wrongly decided.” This the Court

declines to do. Petitioner asserts that the Supreme Court has never held that Brady-type claims

ripen at the time of trial or at the moment when prosecutors decide to suppress exculpatory

evidence because doing so would reward the prosecutors’ egregious misconduct. (Id. at PageID

167-68.) The Court finds this argument unpersuasive.

In Hall v. Bell, No. 1:19-cv-341, 2019 WL 6499646 (E.D. Tenn. Dec. 3, 2019), a district

court recently rejected this very argument. There, the petitioner sought to raise in a successively

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filed petition a previously concealed juror-bias claim. He argued that his claim became ripe not

when the juror exhibited and concealed bias, but only when the petitioner discovered that the

juror had exhibited and concealed bias. The district court disagreed, explaining in the vein of

Wogenstahl that discovery of the alleged bias and concealment “is not a factual predicate that

gives rise to a new claim, nor is the date upon which he discovered the alleged violation the

relevant date for determining the ripeness of the claim.” 2019 WL 6499646, at *3, aff’d In re

Hall, 795 F. App’x 943, 945 (6th Cir. 2019) (“[S]o long as the facts giving rise to the claim had

occurred by the time of the first petition, the petition qualifies as ‘second or successive’ even if

the petitioner was unaware of those facts.”) This Court finds that reasoning persuasive in that it

is more faithful to Wogenstahl than Petitioner’s position is.

In sum, both the Brady claim and the Napue claim are claims whose factual predicates

existed at the time of Petitioner’s prior petition, even if those factual predicates were not

discovered or discoverable at the time of the prior petition. Stated another way, it was new

evidence, not the factual predicates themselves, that arose after the prior petition. Section

2244(b)(2)(B) expressly speaks to such claims and deems them “second or successive.” As such,

the instant application must be transferred, for it is the Court of Appeals’ province alone to

determine whether a “second or successive application” meets the statutory requirements to

proceed.1

The Sixth Circuit has held that the term “second or successive” should be applied to a

1 Because it is exclusively the province of the court of appeals to determine whether to

authorize the filing of a second or successive petition, this Court will not consider Petitioner’s

arguments that he has prima facially satisfied the § 2244(b)(2)(B) requirements for authorization.

(ECF No. 8, at PageID 169-71.) Petitioner should take heart, based on the facts he alleges, that

the Sixth Circuit in Wogenstahl and Keith granted authorization for the filing of a second or

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petition as a whole, not to the individual claims within it. In re Stansell, 828 F.3d 412, 418 (6th

Cir. 2016) (citing Magwood, 561 U.S. 320, 330-36 (2010)); but see In re Caldwell, 917 F.3d 891,

893-94 (6th Cir. 2019) (holding that petition was second or successive as to claims targeting

judgment previously challenged, but was not second or successive as to claims targeting

judgment not previously challenged); and In re Jones, 652 F.3d 603, 605-06 (6th Cir. 2010)

(dismissing as unnecessary a motion to authorize second or successive petition as to one claim

whose factual predicate occurred after the first petition but not to fair cross-section claim that

could have been raised in first petition). The Court is of the view that Caldwell and Jones are

distinguishable--in that Caldwell involved the unique circumstance of one petition challenging

two different judgments; and that Jones involved the Sixth Circuit, not a district court, ruling on

a motion to authorize a second or successive petition—and that Stansell, relying on Magwood,

controls here. As such, the Court declines to address Petitioner’s claim asserting that Ohio’s

successor postconviction statute, as applied, violates the Supremacy Clause. Having determined

that the Brady and Napue claims clearly dictate transfer, the Court reads Stansell as requiring

entire petition to be transferred.

IV. CONCLUSION

For the foregoing reasons, the Court finds the instant petition to be second or successive,

and accordingly GRANTS Respondent’s Motion to Transfer (ECF No. 7). The motions to

proceed in forma pauperis (ECF No. 2) and for appointment of counsel (ECF No. 3) are

TERMINATED, as this Court is without jurisdiction to rule on them. The Court DIRECTS the

successive petition. But that authorization is something only the Sixth Circuit can grant.

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Clerk to TRANSFER the Petition (ECF No. 1) to the Court of Appeals for the Sixth Circuit for

authorization to be filed.

IT IS SO ORDERED.

Op L. Male

CHIEF UNITED STATES DISTRCT JUDGE

DATED: February 2, 2021

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