Opposition Brief — Scott Group, Petitioner v. Norm Robinson, Warden
Supreme Court briefMay 22, 2018
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No. 17-8188
In the Supreme Court of the United States
___________________________________
SCOTT GROUP,
Petitioner,
v.
TIM SHOOP, WARDEN,
Respondent.
___________________________________
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
___________________________________
BRIEF IN OPPOSITION
___________________________________
MICHAEL DEWINE
Attorney General of Ohio
ERIC E. MURPHY*
State Solicitor
*Counsel of Record
CHRISTOPHER S. ROSS
Deputy Solicitor
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
eric.murphy@ohioattorneygeneral.gov
Counsel for Respondent
Tim Shoop, Warden
CAPITAL CASE – NO EXECUTION DATE SET
QUESTION PRESENTED
Did the Sixth Circuit properly deny Group’s application for a certificate of
appealability?
i
LIST OF PARTIES
The Petitioner is Scott Group, an inmate at the Chillicothe Correctional
Institution.
The Respondent is Tim Shoop, the Warden of the Chillicothe Correctional
Institution. Shoop is automatically substituted for the former Warden. See Fed. R.
App. P. 43(c)(2); Sup. Ct. R. 35.3.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................................................................. i
LIST OF PARTIES ......................................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES........................................................................................... v
INTRODUCTION .......................................................................................................... 1
JURISDICTION............................................................................................................. 3
CONSTITUTIONAL AND STATUTORY PROVISIONS ............................................. 4
COUNTERSTATEMENT .............................................................................................. 4
A.
Scott Group Killed Richard Lozier And Later Tried To Hire
Someone To Kill Sandra Lozier ............................................................... 4
B.
A Jury Convicted Group, And Ohio Courts Upheld His Conviction
And Sentence ............................................................................................ 6
C.
The District Court Determined That Group Was Not Entitled To
Habeas Relief, And The Sixth Circuit Denied A Certificate Of
Appealability ............................................................................................ 9
REASONS FOR DENYING THE WRIT ..................................................................... 11
I.
II.
NO LAW SUPPORTS GROUP’S CLAIM THAT A COURT OF APPEALS MUST ISSUE
A REASONED OPINION WHEN IT DENIES A CERTIFICATE OF APPEALABILITY ..... 13
A.
The Standards That Guide The Certificate-Of-Appealability
Analysis Are Well Established .............................................................. 13
B.
Group’s Attempt To Identify A Conflict Worthy Of The Court’s
Attention Falls Short, And The Only Relevant Case That He Cites
Undermines His Position ....................................................................... 16
GROUP RAISES HIS DUE PROCESS CLAIM FOR THE FIRST TIME IN HIS
PETITION ............................................................................................................ 19
A.
This Court Should Not Reach A Claim That Has Not Been
Presented To Any Lower Court ............................................................. 19
iii
B.
III.
Group Cannot Show That He Was Denied Any Process....................... 20
THIS CASE IS A POOR VEHICLE FOR THE QUESTIONS PRESENTED BECAUSE A
REVERSAL WOULD NOT AFFECT THE JUDGMENT BELOW ................................... 22
A.
Requiring The Sixth Circuit To Provide A Written Reason For
Denying A Certificate Would Not Change The Result ......................... 23
B.
The Outcome Below Was Correct, So This Case Is A Poor Vehicle
For This Court To Review The Questions Presented ........................... 24
CONCLUSION............................................................................................................. 29
iv
TABLE OF AUTHORITIES
Cases
Page(s)
Buck v. Davis,
137 S. Ct. 759 (2017) ........................................................................................ 12, 14
Coleman v. Thompson,
501 U.S. 722 (1991) ................................................................................................ 25
Comptroller of the Treasury v. Wynne,
135 S. Ct. 1787 (2015) ............................................................................................ 21
Cullen v. Pinholster,
563 U.S. 170 (2011) ................................................................................................ 28
Dansby v. Hobbs,
691 F.3d 934 (8th Cir. 2012) ........................................................................ 3, 12, 17
Denko v. INS,
351 F.3d 717 (6th Cir. 2003) .................................................................................. 21
Evitts v. Lucey,
469 U.S. 387 (1985) ................................................................................................ 20
Franklin v. Hightower,
215 F.3d 1196 (11th Cir. 2000) .............................................................................. 17
Gonzalez v. Thaler,
565 U.S. 134 (2012) .............................................................................. 14, 16, 18, 22
Hand v. Houk,
871 F.3d 390 (6th Cir. 2017), cert. denied sub nom.
Hand v. Shoop, No. 17-7463, 2018 U.S. LEXIS 2603 (Apr. 23, 2018) .................. 25
Hawkins v. Rivard,
No. 16-1406, 2016 U.S. App. LEXIS 21652 (6th Cir. Nov. 10, 2016) ................... 15
Herrera v. Payne,
673 F.2d 307 (10th Cir. 1982) ................................................................................ 18
Keith v. Bobby,
618 F.3d 594 (6th Cir. 2010) .................................................................................. 28
LaFevers v. Gibson,
182 F.3d 705 (10th Cir. 1999) ................................................................................ 16
v
Mandel v. Bradley,
432 U.S. 173 (1977) ................................................................................................ 21
Martinez v. Ryan,
566 U.S. 1 (2012) .............................................................................................. 25, 26
Mathews v. Eldridge,
424 U.S. 319 (1976) .......................................................................................... 20, 21
Miller-El v. Cockrell,
537 U.S. 322 (2003) .........................................................................................passim
Muniz v. Johnson,
114 F.3d 43 (5th Cir. 1997) .................................................................................... 18
Murphy v. Ohio,
263 F.3d 466 (6th Cir. 2001) .................................................................................. 18
Napa Valley Elec. Co. v. R.R. Comm’n,
251 U.S. 366 (1920) ................................................................................................ 21
Rent-A-Center, W., Inc. v. Jackson,
130 S. Ct. 2772 (2010) ...................................................................................... 12, 19
Slack v. McDaniel,
529 U.S. 473 (2000) .........................................................................................passim
Spencer v. United States,
773 F.3d 1132 (11th Cir. 2014) .............................................................................. 19
State v. Calhoun,
714 N.E.2d 905 (Ohio 1999) ................................................................................... 26
State v. Cole,
443 N.E.2d 169 (Ohio 1982) ............................................................................. 24, 25
State v. Group,
2011-Ohio-6422 (Ohio Ct. App.) ......................................................................passim
State v. Group,
781 N.E.2d 980 (Ohio 2002) ............................................................................passim
State v. Group,
986 N.E.2d 1021 (Ohio 2013) ................................................................................... 9
State v. Perry,
226 N.E.2d 104 (Ohio 1967) ................................................................................... 24
vi
Strickland v. Washington,
466 U.S. 668 (1984) .......................................................................................... 26, 27
Trevino v. Thaler,
569 U.S. 413 (2013) .............................................................................. 25, 26, 27, 28
United States v. Weaver,
195 F.3d 52 (D.C. Cir. 1999) .................................................................................. 18
Wilson v. Sellers,
138 S. Ct. 1188 (2018) ...................................................................................... 16, 22
Statutes, Rules, and Constitutional Provisions
28 U.S.C. § 1254(1) ........................................................................................................ 3
28 U.S.C. § 2253 ....................................................................................................passim
28 U.S.C. § 2253(c) ................................................................................................passim
28 U.S.C. § 2253(c)(2) ...........................................................................................passim
28 U.S.C. § 2253(c)(3) .................................................................................................. 13
28 U.S.C. § 2254 ....................................................................................................passim
28 U.S.C. § 2254(d) ................................................................................................ 26, 27
28 U.S.C. § 2254(d)(1) .................................................................................................... 1
Fed. R. Civ. P. 59(e) ......................................................................................... 10, 11, 28
R. Governing § 2254 Proceedings in U.S. Dist. Cts. 11(a) ............................... 4, 10, 18
vii
INTRODUCTION
Scott Group killed Robert Lozier and attempted to kill his wife, Sandra, in
the bar that the couple operated. After learning that Sandra survived, Group tried
to hire a fellow jail inmate to “firebomb” her home to prevent her from testifying as
an eyewitness to his crime. Pet. App. A-4. The scheme failed, and Sandra was the
key witness at Group’s murder trial in Ohio state court. Prosecutors also offered
evidence of Robert’s DNA that the State obtained from a shoe that Group wore
when he voluntarily went to a police station shortly after killing Robert.
Group’s defense counsel attempted to undermine Sandra’s credibility during
cross-examination. Counsel also sought to cast doubt on the State’s DNA evidence.
After deliberation, the jury convicted him of aggravated murder and recommended
the death penalty.
The Ohio courts affirmed his conviction and sentence, and
denied his claims on post-conviction review.
Group then filed a petition for a writ of habeas corpus in the district court
under 28 U.S.C. § 2254. Among his grounds for relief were four claims of ineffective
assistance of trial counsel.
The district court determined that two of Group’s
ineffective-assistance claims were procedurally defaulted, because the Ohio courts
had found the claims barred by res judicata. And while Group had preserved two
ineffective-assistance claims for habeas review, the district court rejected them on
the merits after finding that they were owed deference under 28 U.S.C. § 2254(d)(1).
Having reviewed Group’s claims in detail, the district court declined to issue
a certificate of appealability (“certificate”) under 28 U.S.C. § 2253(c). It found that
“reasonable jurists could not debate (1) the finding that Group procedurally
defaulted certain claims without good cause to excuse the default or (2) the
disposition of those claims Group preserved for habeas review.” Pet. App. A-23.
In the Sixth Circuit, Group sought a certificate of appealability on the four
ineffective-assistance claims, and on several procedural issues. After considering
the applicable legal standards, a panel of Chief Judge Cole, Judge Boggs, and Judge
Siler denied a certificate. Pet. App. A-25 to A-26.
Group asserts that the Sixth Circuit violated both § 2253(c) and due process
by issuing a “pro forma, non-reasoned, and blanket denial of” a certificate of
appealability. Pet. at i. He suggests that this Court’s precedent precludes opinions
like the Sixth Circuit’s, id. at 13-15, and that the circuits disagree over whether
courts must issue reasoned decisions when denying a certificate of appealability, id.
at 15-20. Finally, Group asserts that a court of appeals’ failure to issue a fully
reasoned decision violates due process. Id. at 23-28.
Group’s Questions Presented do not warrant review.
First, Group identifies no statute or case law in conflict with the Sixth
Circuit’s opinion. Section 2253 requires a habeas petitioner to seek a certificate of
appealability from the court of appeals before appealing a district court’s denial of
the petition. Miller-El v. Cockrell, 537 U.S. 322 (2003), and Slack v. McDaniel, 529
U.S. 473 (2000), set forth the general parameters that a court of appeals must follow
when entertaining an application for such a certificate.
Neither statute nor
precedent, however, requires a court of appeals to issue a fully reasoned opinion
when denying one. And Group’s purported circuit split is built on cases addressing
2
different questions. The only case that Group presents on the actual question—
whether, under AEDPA, a court of appeals must explain its reasons for denying a
certificate—supports the Sixth Circuit’s actions in this case. See Dansby v. Hobbs,
691 F.3d 934, 936 (8th Cir. 2012).
Second, Group raises a constitutional due-process claim for the first time in
this petition. This Court should not address an issue for the first time in a case, let
alone an issue that has not percolated among (or divided) the lower courts.
Third, even if the Sixth Circuit erred, a decision to remand so that the circuit
can write a longer opinion to accompany its denial of a certificate of appealability
would not change the result in this case. Group has presented no claims worthy of
appeal. Two of the ineffective-assistance claims are procedurally defaulted under
Ohio’s res judicata bar. And Group’s two preserved ineffective-assistance claims
present no issue that demands further review. Recognizing this, the Sixth Circuit
properly performed its gate-keeping function and denied a certificate of
appealability. The question presented, then, makes no difference to the ultimate
outcome of this case: Whether or not the Sixth Circuit issues an exhaustive opinion,
Group’s claims simply do not deserve a certificate of appealability.
JURISDICTION
The judgment of the court of appeals was entered on May 25, 2017. The court
of appeals denied Group’s petition for rehearing en banc on December 21, 2017. The
petition for a writ of certiorari was filed on March 19, 2018. Petitioner invokes the
jurisdiction of the Court under 28 U.S.C. § 1254(1).
3
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2253, provides in relevant part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
Rule 11(a) of the Rules Governing § 2254 Proceedings in the United States
District Courts provides in relevant part:
(a) Certificate of Appealability. The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant. Before entering the final order, the court may direct the parties to
submit arguments on whether a certificate should issue. If the court issues a
certificate, the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate,
the parties may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of Appellate Procedure 22. A motion to
reconsider a denial does not extend the time to appeal.
COUNTERSTATEMENT
A.
Scott Group Killed Richard Lozier And Later Tried To Hire
Someone To Kill Sandra Lozier
Scott Group worked for Ohio Wine Imports Company and made weekly
deliveries of wine and other products to the Downtown Bar in Youngtown, Ohio.
State v. Group, 781 N.E.2d 980, 985 (Ohio 2002) (“Group I”). Sandra Lozier owned
4
the bar. Id. On the morning of January 18, 1997, she and her husband, Richard,
were working there. Id. at 986. Group knocked on the door and asked if he could
see copies of the invoices from his employer, which he had also done the week
before. Id. After looking at the invoices for some time, he asked to use the bar’s
restroom. Id. He returned to the office with a gun and forced the Loziers into the
restroom. Id. He then shot both, killing Robert and wounding Sandra. Id.
Sandra lost consciousness. Id. After regaining consciousness and believing
she was dying, Sandra tried to write “Ohio Wine”—Group’s employer—on the floor
with her blood. Id. She then dialed 911 and told the police that “‘the delivery man
from Ohio Wine’” had shot her and her husband. Id. The invoices and $1,200 to
$1,300 in cash were also missing from the bar. Id. at 986-87.
That afternoon, Group called his mother, who told him that the police were
looking for him. Id. at 987. He told her that they likely wanted to discuss his
unpaid parking tickets, and he voluntarily went to the police station with his
mother and his sister. Id. While questioning him, the police noticed blood on his
shoe and eventually arrested him for the shooting. Id. Later DNA testing of the
blood indicated that it matched the pattern of Robert’s DNA. Id.
Several times, Group asked potential witnesses to fabricate stories on his
behalf. See id. 987-89. For instance, while being held in the county jail before trial,
Group asked Adam Perry, another inmate, to “firebomb” Sandra Lozier’s house “‘to
either scare her from testifying or to lead the police into investigating others.’” Id.
at 988.
Group offered Perry $150,000, gave him instructions on making an
5
explosive device, and told him to leave a “clue” relating to another crime that had
occurred at the Downtown Bar. Id. Group also told Perry that Sandra no longer
lived at the house. Id. Once Perry determined that she still lived there, he decided
not to continue with Group’s plan and eventually told the prosecutor what Group
had asked him to do. Id. at 989.
B.
A Jury Convicted Group, And Ohio Courts Upheld His
Conviction And Sentence
Group was charged with one count of aggravated murder, which carried
death-penalty specifications for murder during an aggravated robbery and the
purposeful attempt to kill two persons. Id. He was also charged with aggravated
robbery and attempted aggravated murder. Id. A superseding indictment later
added charges for attempted aggravated murder and intimidating a witness related
to Group’s plan to firebomb Sandra’s house. Id.
The evidence against Group included Sandra’s eyewitness testimony and her
courtroom identification of Group as her husband’s killer. Id. at 993-94. The State
also offered evidence that the blood on the shoe that Group wore to the police
station matched Robert’s DNA. Id. at 994. Group’s defense included an alibi that
on the morning of the murder, he had taken his stepson to school and then went to
his mother’s house to do laundry. Id. at 987. A jury found Group guilty on all
counts and specifications, and he was sentenced to death. Id. at 989.
On direct appeal to the Ohio Supreme Court, Group raised sixteen
assignments of error.
Among them, Group claimed that he received ineffective
assistance of counsel based on his trial counsel’s alleged failure to arrange for a
6
defense DNA expert witness. Id. at 1002. Group received funds to use Lifecodes
Corporation for its DNA testing. Id. After an acquisition, Lifecodes became part of
the same corporation as Cellmark Diagnostics, which the State had used for its
DNA testing. Id. Although trial counsel had “no objection” to continuing to use
Lifecodes, the expert declined to testify, and no replacement could be found in time
for trial. Id. The Ohio Supreme Court found that Group’s trial counsel was not “at
fault” for the expert’s decision, and that counsel’s actions did not prejudice Group.
Id.
Group also asserted that his trial counsel rendered ineffective assistance by
inadequately cross-examining the State’s expert witness. Id. The Ohio Supreme
Court rejected this claim, finding that “the record indicates that defense counsel
researched the subject” of DNA testing and satisfactorily cross-examined the
witness. Id. The Ohio Supreme Court rejected Group’s remaining grounds for relief
and affirmed his convictions and sentence. Id. at 1006.
While his direct appeal was pending, Group filed a petition for post-conviction
relief in state court. State v. Group, 2011-Ohio-6422, ¶ 42 (Ohio Ct. App.) (“Group
II”). His amended petition raised twelve claims of ineffective assistance of counsel
and one claim that his sentence was void because the trial court used an anonymous
jury system. Id. ¶ 53. The State moved for summary judgment on the petition,
which the post-conviction court granted.
Id. ¶ 54.
An Ohio appellate court
affirmed, holding that “[t]he majority” of Group’s ineffective-assistance claims were
barred by res judicata, because he had not supported the claims with “cogent
7
evidence” outside the record, as Ohio law requires. Id. ¶ 2. Although some of his
claims had the required evidentiary support, the Ohio court found that none
“demonstrate[d] substantive grounds for relief.” Id.
Three of Group’s state post-conviction ineffective-assistance claims are
relevant here. First, Group asserted that trial counsel did not adequately crossexamine Sandra Lozier at several points in her testimony. Id. ¶ 119. He argued
that counsel should have pressed Sandra on inconsistencies in her testimony about
the shooter and sought to impeach her claims that she had lost consciousness after
the shooting. Id. He provided copies of a police report in support of the suggested
inconsistencies.
The Ohio Court of Appeals found that the evidence was not
“cogent,” however, and applied the State’s res judicata bar. Id. ¶ 126.
Second, Group asserted that trial counsel did not prepare his alibi witnesses
and failed to argue that another person was responsible for the shooting. Id. ¶ 132.
On the witness-preparation argument, Group offered an affidavit from his mother,
but the post-conviction court found it was not credible.
Id. ¶ 134.
On the
alternative-shooter argument, the court noted that the Ohio Supreme Court had
rejected his alibi defense, precluding any finding that trial counsel’s actions
prejudiced Group. Id. Consequently, res judicata also barred this claim. Id.
Third, Group asserted that trial counsel falsely promised the jury that the
defense would prove that the State’s DNA evidence was contaminated. Id. ¶ 92. He
argued that failure to fulfill this promise “‘caused the defense to lose all credibility.’”
Id. The post-conviction court found that res judicata also barred this claim, because
8
Group could have raised it on direct appeal. Id. Alternatively, it proceeded to the
merits of the claim and found that Group could not “demonstrate prejudice” in light
of the other evidence against him. Id.
The Ohio Supreme Court declined to review the post-conviction case. State v.
Group, 986 N.E.2d 1021 (Ohio 2013).
C.
The District Court Determined That Group Was Not Entitled
To Habeas Relief, And The Sixth Circuit Denied A Certificate
Of Appealability
After Group was unsuccessful at obtaining post-conviction relief in the Ohio
courts, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pet.
App. A-1. Among his eight grounds for relief were the four ineffective-assistance
claims discussed in the preceding section. Id. at A-8.
The district court issued a thorough order denying Group’s petition on each
ground. Pet. App. A-1 to A-23. First, on the cross-examination of Sandra Lozier,
the district court held that the Ohio Court of Appeals had properly applied its res
judicata rule, and that Group had not demonstrated cause and prejudice to excuse
his procedural default. Id. at A-12. Second, on the presentation of an alibi defense,
the court found that Group had not demonstrated cause to excuse the procedural
default. Id. Third, on the cross-examination of the State’s DNA expert witness and
the lack of a defense DNA expert, the court held that the Ohio Supreme Court had
not unreasonably applied federal law. Id. at A-12 to A-14. Fourth, on trial counsel’s
unfulfilled promise to the jury about DNA evidence, the court held that the State
had waived any procedural-default argument and applied AEDPA deference to the
post-conviction court’s alternative holding on the merits. Id. at A-15.
9
In the same order, the district court determined whether to grant a certificate
of appealability. Id. at A-23. Rule 11(a) of the Rules Governing § 2254 Cases in the
United States District Courts requires a district court to conduct the certificate
analysis “when it enters a final order adverse to the applicant.” Rule 11(a). For
Group’s procedurally defaulted claims, the district court determined that
“reasonable jurists could not debate . . . the finding that Group procedurally
defaulted certain claims without good cause to excuse the default.” Pet. App. A-23.
For Group’s constitutional claims, it determined that “reasonable jurists could not
debate . . . the disposition of those claims Group preserved for habeas review.” Id.
The district court recognized that the state courts had “thoroughly considered” the
arguments and “rejected them with considerable record support.” Id. Thus, it held,
a certificate of appealability should not issue. Id.
The next month, Group moved to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). Motion, R.56, PageID#8821-49. Shortly thereafter,
he moved to amend his habeas petition to add a ninth ground for relief. Motion,
R.57, PageID#8866-80. In support of both, he relied on “new” evidence in the form
of a report from Christine Funk, a defense attorney who has consulted in cases
involving DNA. Report, R.56-1, PageID#8850. Funk raised various concerns about
Group’s trial counsel’s “understanding” of the principles of DNA testing. Id. at
PageID#8855. The district court rejected the Rule 59 motion because Funk’s report
“[was] not new, [was] not newly discovered, and [was] not evidence.” Opinion, R.67,
PageID#8968. The motion to amend the petition also relied on a report from Dr.
10
Dan Krane, an expert who critiqued the use of DNA evidence during Group’s trial.
Id. at PageID#8969. The district court rejected this affidavit, too, because Group
did not explain why it was unavailable before the court’s judgment on Group’s
petition.
Id.
Finally, the district court explained that the reports “in no way
undermine[d] the state court conclusions that any errors were not prejudicial in
light of the ‘overwhelmingly persuasive’ evidence of Group’s guilt.” Id. (quoting
Group II, 2011-Ohio-6422, ¶ 88). Thus, the district court denied both the Rule 59
motion and the motion to amend the petition. Id. at PageID#8969-72.
Having failed to convince the district court that his claims had merit, Group
turned to the Sixth Circuit in order to request a certificate. His application raised
the four ineffective-assistance claims discussed above. Pet. App. A-28 to A-112. In
a brief order, a panel denied the application. Id. at A-25 to A-26. The panel recited
the applicable standards under 28 U.S.C. § 2253(c)(2), Slack v. McDaniel, 529 U.S.
473, 484 (2000), and Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Id. at A-26.
“Upon consideration,” it then found that “Group has failed to make the required
showing” and denied a certificate of appealability. Id. at A-26.
Group sought en banc rehearing of the panel’s order, but no judge requested a
vote on the petition. Id. at A-27. This timely appeal followed.
REASONS FOR DENYING THE WRIT
Group’s petition for a writ of certiorari asks the Court only whether the Sixth
Circuit wrongly denied a certificate of appealability via an unreasoned order. The
petition neither addresses the underlying merits of his claims nor argues that the
Sixth Circuit applied the wrong legal standards for considering a certificate. It
11
simply asks the Court to establish a non-statutory rule that courts of appeals
denying a certificate of appealability must do so with a thorough opinion explaining
why. Group thus asks the Court to impose an opinion-writing requirement on lower
courts that AEDPA does not require. And he makes this request despite the Court’s
recent reminder that the certificate-of-appealability “inquiry . . . is not coextensive
with a merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773 (2017).
Nowhere does § 2253(c) include any indication that a court of appeals must
issue a written opinion. Sidestepping this obstacle, Group tries to manufacture a
conflict for the Court to resolve. But the “circuit split” Group purports to identify
has no merit, and the only relevant case he cites supports the Sixth Circuit’s
opinion below. See Dansby v. Hobbs, 691 F.3d 934, 936 (8th Cir. 2012) (reasoning
that neither statute nor precedent “dictate that a court of appeals must or must not
publish a statement of reasons when it denies an application for a certificate”).
Thus, this case does not present an opportunity for the Court to resolve a
question that has divided lower courts. Nor does it give the Court an occasion to
clarify an important question of federal law. Group also did not present his dueprocess claim to the Sixth Circuit, so this Court should not consider it. See Rent-ACenter, W., Inc. v. Jackson, 130 S. Ct. 2772, 2781 (2010) (holding that an argument
that was “not mentioned below” was brought “too late” and the Court “[would] not
consider it”).
At best, Group asks the Court to engage in error correction, but there is no
error to correct. The district court thoroughly analyzed Group’s claims, the record,
12
and the applicable law. Its conclusions about AEDPA deference and procedural
default are unassailable, and its procedural rulings were sound. Overwhelming
evidence also supports Group’s guilt. Thus, it would make little sense for the Sixth
Circuit to repeat the logic carefully spelled out in the district court’s opinions. Yet if
the Court remands for the Sixth Circuit to apply Group’s (atextual) requirement,
that is all that would result.
I.
NO LAW SUPPORTS GROUP’S CLAIM THAT A COURT OF APPEALS MUST ISSUE
A REASONED OPINION WHEN IT DENIES A CERTIFICATE OF APPEALABILITY
The Court should decline Group’s first question presented because it is not
supported by any law, and Group’s attempts to manufacture a conflict worthy of the
Court’s review fail on all fronts.
A.
The Standards That Guide The Certificate-Of-Appealability
Analysis Are Well Established
1.
In a habeas proceeding under 28 U.S.C. § 2254, a petitioner may not
appeal a district court’s final order “[u]nless a circuit justice or judge issues a
certificate of appealability.”
28 U.S.C. § 2253(c). For a certificate to issue, the
petitioner must make “a substantial showing of the denial of a constitutional right.”
Id. § 2253(c)(2). Additionally, a judge issuing a certificate must “indicate which
specific issue or issues” satisfy this required showing. Id. § 2253(c)(3). Yet nothing
in the statute requires a court denying one to explain why.
Nothing in the Court’s precedent requires it, either. The certificate analysis
is a procedural rule mandating a “threshold inquiry into whether the circuit court
may entertain an appeal.” Slack, 529 U.S. at 482. It allows courts to “screen[] out
issues unworthy of judicial time and attention,” protecting appellate panels from
13
hearing “frivolous claims.” Gonzalez v. Thaler, 565 U.S. 134, 145 (2012). In this
sense, it gives courts a “gatekeeping function.” Id.
The certificate analysis “is not coextensive with a merits analysis.” Buck, 137
S. Ct. at 773.
Indeed, a court of appeals that engages with the merits of a
petitioner’s claim in order to justify denying a certificate “‘is in essence deciding an
appeal without jurisdiction.’” Id. (quoting Miller-El, 537 U.S. at 337). Thus, courts
reviewing certificate-of-appealability applications must be careful not to cross the
line between engaging in the limited review necessary for the certificate analysis
and engaging with the full merits of a petitioner’s case.
The Court has explained how lower courts should walk this line. To receive a
certificate, a petitioner must make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), by “demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further,” Miller-El, 537 U.S. at 327. Similarly, if a district court denies a
petition on procedural grounds, “a COA should issue” if “jurists of reason” would
find it debatable both “whether the petition states a valid claim of the denial of a
constitutional right” and “whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484.
The Sixth Circuit recited these standards and concluded that Group’s claims
did not “deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Group’s petition does not contend otherwise. Instead, he urges the Court to read
14
into Miller-El and Slack an additional procedural step not found in the text of
§ 2253. Nothing requires his proposed “written opinion” rule. And even if the Court
is inclined to adopt it, this case is a poor vehicle to do so, because the outcome—
denial of a certificate—will be the same. See infra Part III.
2.
In arguing that the lower courts acted contrary to this Court’s
precedent, Group fails to consider the district court’s entire opinion denying his
habeas petition. He compares his case to Miller-El, where the Court found that the
district court had not “‘give[n] full consideration to the substantial evidence
petitioner put forth.’” Pet. 14 (quoting 537 U.S. at 341). Group proceeds to criticize
“the pro forma and unreasoned review by both the district court and the Sixth
Circuit” as failing to comply with § 2253. Id. (emphasis added). The comparison to
Miller-El falls short. The district court’s opinion here, spanning thirty-six pages in
the Federal Supplement, can hardly be characterized as “pro forma” or
“unreasoned.”
Pet. App. A-1 to A-23.
The opinion carefully analyzes each of
Group’s claims for relief and, applying the proper standards under AEDPA,
concludes that none warrant granting habeas relief.
After denying habeas relief and entering “a final order adverse to” Group, the
district court properly performed the certificate analysis. See R. Governing § 2254
Cases in U.S. Dist. Cts. 11(a). Because that analysis flowed directly out of the
habeas analysis, the district court had little reason to repeat its findings when
assessing whether any of Group’s claims warranted a certificate. See, e.g., Hawkins
v. Rivard, No. 16-1406, 2016 U.S. App. LEXIS 21652, at *4-5 (6th Cir. Nov. 10,
15
2016) (“[B]ecause the [district] court had already reviewed and analyzed the claims
through the adoption of the magistrate judge’s report and recommendation, it was
not necessary for the court to reassess each claim prior to denying a COA.”).
Similarly, the court of appeals can rely on the district court’s merits analysis when
it reviews a certificate application. Cf. Wilson v. Sellers, 138 S. Ct. 1188, 1193
(2018) (“[F]ederal habeas law employs a ‘look through’ presumption.”).
B.
Group’s Attempt To Identify A Conflict Worthy Of The Court’s
Attention Falls Short, And The Only Relevant Case That He
Cites Undermines His Position
Group tries to manufacture a circuit split by arguing that the Sixth Circuit’s
“blanket denial” of a certificate of appealability creates a conflict over “whether the
blanket denial (or grant) of a COA is permissible under 28 U.S.C. § 2253(c).” Pet.
15. Yet blanket grants and blanket denials pose separate questions. As described
above, AEDPA requires a court issuing a certificate to “indicate which specific issue
or issues,” 28 U.S.C. § 2253(c), that the petitioner has shown “deserve
encouragement to proceed further,” Miller-El, 537 U.S. at 327. Thus, a blanket
grant of a certificate violates § 2253(c). See Gonzalez, 565 U.S. at 154 (“[Section]
2253(c)(3) is a mandatory but nonjurisdictional rule.”).
The inverse—that a blanket denial of a certificate violates § 2253(c)—does
not follow. Cf. LaFevers v. Gibson, 182 F.3d 705, 710 (10th Cir. 1999) (cautioning
district courts to avoid making “a blanket denial of a certificate of appealability
unless the court is convinced there is nothing in the petition that is of debatable
constitutional magnitude” (emphasis added)). That is the question Group presents
16
to the Court, but he fails to support it with any authority, much less any conflicting
authority.
In fact, Group cites only one case that is directly relevant to the question
presented, but that case supports the Sixth Circuit’s approach. See Dansby, 691
F.3d at 936.
In an order denying a petition for rehearing, the Eighth Circuit
addressed whether it was appropriate to discuss its reasons for denying an
expanded certificate in an earlier opinion. See id. The court explained that neither
§ 2253(c) nor this Court’s “decisions regarding certificates of appealability dictate
that a court of appeals must or must not publish a statement of reasons when it
denies an application for a certificate.” Id. “Whether to issue a summary denial or
an explanatory opinion,” it continued, “is within the discretion of the court.” Id.
Although the Eighth Circuit opted to provide reasons for denying the certificate in
that case, the Sixth Circuit’s decision not to do so here fits comfortably within
Dansby’s logic.
Dansby is the only case that Group cites concerning a court of
appeals’ authority or obligation to issue an opinion when denying a certificate. Pet.
16-19. Thus, there is no conflicting authority for this Court to clarify.
The cases that Group assembles in support of his purported inter-circuit
split, id. at 15-20, and intra-circuit split, id. at 20-23, involve distinct questions. On
one hand, a number of cases address a district court’s failure to explain why it has
granted a certificate. See, e.g., Franklin v. Hightower, 215 F.3d 1196, 1198-99 (11th
Cir. 2000) (reviewing the district court’s issuance of a pre-AEDPA certificate of
probable cause that did not indicate the reason for granting leave to appeal); United
17
States v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999) (remanding for district court to
“specify the issue or issues” “worthy of appeal”); Muniz v. Johnson, 114 F.3d 43, 4546 (5th Cir. 1997) (holding that the district court’s issuance of a pre-AEDPA
certificate of probable cause did not satisfy AEDPA’s certificate requirement). The
reason that the circuits had to address this is plain from the text of § 2253: the
statute requires courts to indicate why they have granted a certificate.
See 28
U.S.C. § 2253(c). When a district court fails to do so, it fails to comply with the
statute. See Gonzalez, 565 U.S. at 154. But these cases say nothing about a court’s
obligation to explain why it denied a certificate and are therefore irrelevant to
Group’s question presented.
On the other hand, one case addresses a district court’s “blanket denial” of a
certificate. See Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (holding that
denial of a certificate “before Murphy had even applied for one” and without
considering the Slack standard was improper).
But Murphy has no bearing on
Group’s question presented. Rule 11(a), which requires district courts to conduct
the certificate analysis after making a decision adverse to the petitioner, was
enacted in 2009, eight years after Murphy.
Thus, the analysis that the Sixth
Circuit critiqued in Murphy would be required today. Moreover, the district court
and the Sixth Circuit here referred to the proper standards, including Slack, when
denying the certificate. Pet. App. A-23, A-26.
Finally, the remaining cases that Group cites in support of his purported split
address a host of irrelevant issues. See, e.g., Herrera v. Payne, 673 F.2d 307, 308
18
(10th Cir. 1982) (applying only pre-AEDPA rules); Spencer v. United States, 773
F.3d 1132, 1137 (11th Cir. 2014) (en banc) (admonishing a district court for
certifying an issue that did not “purport[] to involve an underlying error of
constitutional magnitude” but continuing to decide the appeal).
And though Group points out that some courts might consider the nature of
the penalty in capital cases to resolve any doubt over whether to issue a certificate,
Pet. 19-20, that question is not before the Court. For this question to arise, Group
must show that there was any doubt as to whether a certificate should issue. He
has not made this showing, so the Court should decline to address the question.
At bottom, Group simply assumes that because a certificate must indicate the
issue for appeal, the denial of a certificate must equally indicate why no issue was
certified for appeal. That position has no basis in the text of AEDPA, and the courts
of appeals have not split over it or addressed it in any detail. Accordingly, the
Court should deny Group’s petition.
II.
GROUP RAISES HIS DUE PROCESS CLAIM FOR THE FIRST TIME IN HIS
PETITION
A.
This Court Should Not Reach A Claim That Has Not Been
Presented To Any Lower Court
This Court should not consider an issue not raised in the lower courts. See
Rent-A-Center, W., Inc., 130 S. Ct. at 2781 (holding that an argument that was “not
mentioned below” was brought “too late” and the Court “[would] not consider it”).
But that is precisely what Group asks the Court to do with his second question
presented. Pet. i., 23-28.
19
Group argues that the Sixth Circuit’s opinion violates due process because
the court did not “independently assess Group’s COA application” under the
standard set forth in Slack. Id. at 23. To be sure, Group did not need to raise this
claim in his certificate application, but he failed to raise it in his petition for
rehearing and for rehearing en banc. 6th Cir. Doc. 24-2. Group’s due-process claim
thus appears for the first time in his petition for a writ of certiorari.
B.
Group Cannot Show That He Was Denied Any Process
On the merits, Group’s due-process argument must fail. While the Court has
indicated that an appellate system must comport with due process even when the
Constitution does not require the provided right to appeal, see, e.g.. Evitts v. Lucey,
469 U.S. 387, 393 (1985), Group does not explain how the lack of a written opinion
denying a certificate application violates due process. He offers only the conclusory
statement that the Sixth Circuit violated his due-process rights by conducting a
“phantom review of his COA application.” Pet. 26. This, he contends, denied him
“‘the opportunity to be heard at a meaningful time and in a meaningful manner.’”
Id. at 28 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Group’s argument misses the procedural forest for the trees. The procedures
enacted in § 2253(c) are but a piece of a broader procedural context governed by
AEDPA. Congress adopted AEDPA to regulate federal courts’ power to grant writs
of habeas corpus. See Miller-El, 537 U.S. at 337. Under these laws, Group filed a
petition for a writ of habeas corpus, see 28 U.S.C. § 2254, litigated it before the
district court, see Pet. App. A-1 to A-23, and filed an application for a certificate, see
28 U.S.C. § 2253. He has been heard, and as the district court’s thorough opinion
20
demonstrates, he has been heard meaningfully. See Mathews, 424 U.S. at 333.
Thus, the claim that the Sixth Circuit’s brief opinion violated due process is belied
by the record and the process he has received throughout his case.
Group also argues that the requisite assessment of his claims under Slack
“was not made,” thereby violating his due-process rights. Pet. 24. This argument
assumes that when a court declines to explain a decision it has failed to make a
decision. That assumption is unwarranted. Courts often summarily affirm a lower
court’s decision as a means of agreeing with the “‘judgment only,’” even if “‘the
rationale of the affirmance may not be gleaned solely from the opinion below.’”
Comptroller of the Treasury v. Wynne, 135 S. Ct. 1787, 1800-01 (2015) (quoting
Mandel v. Bradley, 432 U.S. 173, 176 (1977)); cf. Napa Valley Elec. Co. v. R.R.
Comm’n, 251 U.S. 366, 372 (1920) (“[A]bsence of an opinion by the [California
Supreme Court denying a writ of review] did not affect the quality of its decision or
detract from its efficacy as a judgment upon the questions presented.”). And it is
mistaken to claim that this well-trod appellate procedure violates due process,
especially where § 2253 simply requires the appellate court to review whether a
claim should proceed further, not to “affirm” the judgment. See Denko v. INS, 351
F.3d 717, 729-30 (6th Cir. 2003) (collecting cases that demonstrate a uniform
conclusion among the circuits that a streamlined summary affirmance procedure in
the Board of Immigration Appeals did not violate due process).
Further, Group’s characterization of the Sixth Circuit’s opinion is wrong.
That court may not have elaborated upon its decision to deny a certificate, but its
21
opinion demonstrates that it adequately performed its “gatekeeping function.”
Gonzalez, 565 U.S. at 145; cf. Wilson, 138 S. Ct. at 1199-1200 (Gorsuch, J.,
dissenting) (“[A] busy appellate court sometimes may not see the profit in devoting
its limited resources to explaining the error and the alternative basis for affirming
when the outcome is sure to remain the same, so it issues a summary affirmance
instead.”).
It reviewed Group’s application and the decision below, applied the
applicable legal standards, and, “[u]pon consideration,” concluded that Group failed
to satisfy the standards. Pet. App. A-25 to A-26. The Sixth Circuit denied Group a
certificate because he lacked a meritorious issue to appeal, not because it failed to
consider his case, and certainly not in a way that violated his right to due process.
III.
THIS CASE IS A POOR VEHICLE FOR THE QUESTIONS PRESENTED BECAUSE
A REVERSAL WOULD NOT AFFECT THE JUDGMENT BELOW
Group’s questions presented go no further than the proper procedure for
granting or denying a certificate of appealability under 28 U.S.C. § 2253(c)(2). The
merits of the claims he raised in his application are not before the Court. See
Miller-El, 537 U.S. at 331 (“A COA ruling is not the occasion for a ruling on the
merit[s] of a petitioner’s claim[s].”). Because he did not ask the Court to reverse on
the merits of his application—just the procedure—no action taken by the Court will
give Group the relief he seeks. The maximum relief for Group in this case, then, is
the reversal of the Sixth Circuit’s denial of a certificate and a remand to that court
to issue a written decision in support of denying the certificate.
22
A.
Requiring The Sixth Circuit To Provide A Written Reason For
Denying A Certificate Would Not Change The Result
The limited relief Group seeks will not affect the judgment in this case.
Miller-El and Slack require only a threshold examination of the claims in support of
a certificate of appealability. Id. at 348; Slack, 529 U.S. at 484. The Sixth Circuit
applied this standard when it denied the certificate.
And it complied with the
standard, because Group’s application did not “demonstrat[e] that jurists of reason
could disagree with the district court’s resolution of his constitutional claims.”
Miller-El, 537 U.S. at 327.
Group repeatedly refers to the Sixth Circuit’s opinion as “pro forma,”
“unreasoned,” or “perfunctory.”
See, e.g., Pet. 1, 6, 11, 13, 15, 20, 29.
These
characterizations are wrong.
Brief though it may be, it summarized the
proceedings, and it set forth the applicable legal standards. Pet. App. A-25 to A-26.
Finally, it concluded that “[u]pon consideration,” a certificate was not warranted,
because “Group has failed to make the required showing.” Id. at A-26. In short, the
Sixth Circuit issued a reasoned decision, not a perfunctory or pro forma one.
Remanding the case to the Sixth Circuit for additional written analysis would
serve no purpose. The panel has held that Group “failed to make the required
showing” to warrant a certificate. Id. Thus, it has concluded that Group’s claims
are not debatable.
Asking the court to write an opinion elaborating upon that
conclusion will result only in the expenditure of that court’s resources to reiterate
the written conclusions in the district court’s order. It will not result in a certificate
of appealability, because Group has offered no basis for the Sixth Circuit to change
23
its conclusion. The district court’s thorough explanation and rejection of Group’s
claims underscores why his case does not “deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327.
Group’s petition all but ignores the district court’s opinion, which fully
grappled with Group’s arguments and explained why each was procedurally
defaulted or failed to clear AEDPA’s threshold. Pet. App. A-1 to A-23. In short,
that court demonstrated precisely why Group’s claims did not merit a certificate.
Against this backdrop, Group’s plea that he has “been given no issues to appeal” or
“any articulated understanding as to why not” rings hollow. Pet. 12.
B.
The Outcome Below Was Correct, So This Case Is A Poor
Vehicle For This Court To Review The Questions Presented
1.
Group sought a certificate of appealability on four ineffective-
assistance claims: (1) that trial counsel did not adequately cross-examine Sandra
Lozier, (2) that trial counsel did not effectively prepare alibi witnesses or introduce
evidence of another potential suspect, (3) that trial counsel unsuccessfully crossexamined the State’s DNA witness and failed to rebut that expert with a defense
expert, and (4) that trial counsel falsely promised jurors that an expert—who later
became unavailable through no fault of trial counsel—would undermine the State’s
DNA evidence. Pet. App. A-48, A-61, A-87.
a.
The district court found that the first two claims were procedurally
defaulted. Id. at A-12. Ohio’s res judicata rule bars a post-conviction petitioner
from raising a claim that was or could have been raised on direct appeal. See State
v. Cole, 443 N.E.2d 169, 170-71 (Ohio 1982); State v. Perry, 226 N.E.2d 104, 108
24
(Ohio 1967). When a defendant fails to raise a record-based claim of ineffective
assistance on direct review, res judicata bars him from raising that claim in postconviction review unless he provides cogent, outside-the-record evidence of the
claim. See Cole, 443 N.E.2d at 171.
Ohio’s res judicata bar “is an adequate and independent state ground that
bars federal habeas relief.” Hand v. Houk, 871 F.3d 390, 409 (6th Cir. 2017), cert.
denied sub nom. Hand v. Shoop, No. 17-7463, 2018 U.S. LEXIS 2603 (Apr. 23,
2018).
Yet a procedurally defaulted claim can be excused if a “prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The Ohio Court of Appeals applied the res judicata bar to Group’s claims
concerning the cross-examination of Sandra Lozier, and the evidence he adduced to
excuse the default was not competent or cogent. Group II, 2011-Ohio-6422, ¶ 119;
Pet. App. A-11 (incorporating analysis from Order, R.49, PageID#8757-63).
For
example, Group’s state post-conviction counsel failed to submit Sandra’s medical
records that he nevertheless cited in support of an attempt to undercut her claim
that she had lost consciousness. Id. Group’s habeas petition argued that his postconviction counsel’s failure to attach the records was ineffective assistance and
excused the procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), and
Trevino v. Thaler, 569 U.S. 413 (2013). But whether those cases applied here was
irrelevant, because the district court held that Group was not prejudiced by either
the failure to attach the medical records or the failure to impeach Sandra’s loss of
25
consciousness.
Order, R.49, PageID#8758-61.
Martinez and Trevino allow
petitioners to lift a procedural bar in certain defined circumstances; they do not
create a substantive right to the effective assistance of post-conviction counsel. No
certificate was necessary on the Martinez/Trevino issue, because no reasonable
jurist could debate that Group had failed to demonstrate a viable claim under
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The Ohio Court of Appeals also applied the res judicata bar to Group’s claims
concerning his trial counsel’s attempts to establish an alibi defense. Group, 2011Ohio-6422, ¶¶ 134-35. Reasonable jurists would not debate that the self-serving
affidavits he offered were insufficient outside-the-record evidence to lift the res
judicata bar, as both the state post-conviction and the habeas courts found. See
State v. Calhoun, 714 N.E.2d 905, 911 (Ohio 1999). Nor could reasonable jurists
debate the district court’s conclusion that Group’s theory about another suspect was
“unsupported and not credible.” Order, R.49, PageID#8765. His theory rested “‘on
information and belief,’” id., so denial of a certificate was proper.
b.
The district court found that Group’s remaining two ineffective-
assistance claims were preserved for habeas review, because the Ohio courts
“adjudicated [them] on the merits.” 28 U.S.C. § 2254(d). Neither claim, it held,
involved an “unreasonable application” of the Court’s precedent or an “unreasonable
determination of the facts.” Id.; Pet. App. A-12 to A-16.
First, the district court reviewed Group’s claims that his counsel was
ineffective for not arranging a separate DNA expert witness after the initial expert
26
from Lifecodes refused to appear, and for not being prepared to cross-examine the
State’s expert. Pet. App. A-14. Reasonable jurists could not debate that a habeas
court should defer to the Ohio Supreme Court’s conclusions that Group’s counsel
was not “at fault” for the expert’s decisions and that trial counsel was not deficient
in cross-examining the witness when counsel had researched the law and been
prepared with questions. Group I, 781 N.E.2d at 1002; see also Pet. App. A-14.
Group’s attempts to use Trevino to support his claims with evidence outside the
record are meritless. Pet. App. A-94. It is beyond dispute that Trevino excuses only
procedural default in certain state post-conviction systems. See 569 U.S. at 429.
Reasonable jurists would not dispute that it would be a vast expansion of Trevino to
apply it to a state court’s ruling on the merits that a defendant would not be able to
establish the prejudice prong of the Strickland analysis. See Group I, 781 N.E.2d at
1002; see also Strickland, 466 U.S. at 687.
Second, the district court reviewed Group’s claim that his counsel was
ineffective for telling the jury that a defense expert would show that the State’s
DNA evidence was contaminated, but then failing to produce that expert. Pet. App.
A-15. Reasonable jurists would not debate that § 2254(d) requires deference to the
post-conviction court’s holding that the “‘overwhelmingly persuasive’” evidence
against Group—including DNA evidence, Sandra’s eyewitness testimony, and the
efforts to intimidate Sandra by firebombing her house—meant that Group could not
demonstrate prejudice. Group II, 2011-Ohio-6422, ¶¶ 88, 92.
27
2.
Group also sought a certificate of appealability on the district court’s
denial of a motion for discovery, a Rule 59 motion, and a motion to amend his
habeas petition. None warrant a right to appeal.
The district court denied Group’s motion for discovery in part on the basis of
Cullen v. Pinholster, 563 U.S. 170 (2011), and in part because Group had
procedurally defaulted some claims.
Order, R.49, PgID#8754-56.
As discussed
above, the district court’s analysis of Group’s procedural default is not subject to
reasonable debate.
The district court denied Group’s Rule 59(e) motion because the “new
evidence,” in the form of an affidavit from an attorney and a declaration from an
expert versed in DNA evidence, was not new. Order, R.67, PageID#8968-70. Both
witnesses were available before the district court’s final decision, and neither could
overcome the state courts’ conclusion that the overwhelming evidence against
Group outweighed any prejudice. Id. Reasonable jurists could not dispute this
conclusion, particularly in light of the abuse-of-discretion standard of review that
applies to Rule 59(e) motions. See Keith v. Bobby, 618 F.3d 594, 597 (6th Cir. 2010).
The district court denied Group’s motion to amend his petition to add a ninth
claim of ineffective assistance, because it found that the claim was untimely,
procedurally barred, and meritless. Order, R.67, PageID#8970-72. Again, Group
must demonstrate that reasonable jurists could debate whether the district court
abused its discretion in denying him leave to amend his petition.
28
Because the
proposed claim could have been raised before the district court’s final judgment,
there was no abuse of discretion.
CONCLUSION
The Court should deny Group’s petition for writ of certiorari.
Respectfully submitted,
MICHAEL DEWINE
Attorney General of Ohio
/s/ Eric E. Murphy
ERIC E. MURPHY*
State Solicitor
*Counsel of Record
CHRISTOPHER S. ROSS
Deputy Solicitor
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
eric.murphy@ohioattorneygeneral.gov
Counsel for Respondent
Tim Shoop, Warden
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.