Opposition Brief — Richard Bays, Petitioner v. Tim Shoop, Warden

No. 20-5563

In the Supreme Court of the United States

___________________________________

RICHARD BAYS,

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 TO THE

PETITION FOR WRIT OF CERTIORARI

___________________________________

DAVE YOST

Attorney General of Ohio

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

BRENDA S. LEIKALA

Senior Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@

ohioattorneygeneral.gov

Counsel for Respondent

CAPITAL CASE – NO EXECUTION DATE SET

QUESTION PRESENTED

Is Richard Bays entitled to a certificate of appealability regarding the factbound question whether a district court abused its discretion in denying leave to

amend his habeas petition, five years after its filing, to add claims that were time

barred and inserted for the purpose of delay?

i

LIST OF PARTIES

The petitioner is Richard Bays, an inmate at the Chillicothe Correctional Institution.

The respondent is Tim Shoop, the Warden of the Chillicothe Correctional Institution.

ii

LIST OF DIRECTLY RELATED PROCEEDINGS

1.

Bays v. Warden, No. 18-3101 (6th Cir.) (final judgment issued March 30,

2020).

2.

Bays v. Warden, No. 3:08-cv-076 (S.D. Ohio) (final judgment issued Dec. 29,

2017).

3.

State v. Bays, No. 2015-1073 (Ohio) (jurisdiction declined Aug. 31, 2016).

4.

State v. Bays, No. 2014 CA 24 (Ohio Ct. App., 2d Dist.) (final judgment issued

May 15, 2015).

5.

State v. Bays, No. 2004 CA 30 (Ohio Ct. App., 2d Dist.) (final judgment issued

Jan. 7, 2005).

6.

State v. Bays, No. 2003-1348 (Ohio) (jurisdiction declined Oct. 15, 2003).

7.

State v. Bays, No. 2003 CA 4 (Ohio Ct. App., 2d Dist.) (final judgment issued

June 20, 2003).

8.

State v. Bays, No. 98-515 (Ohio) (jurisdiction declined May 20, 1998).

9.

State v. Bays, No. 96 CA 118 (Ohio Ct. App., 2d Dist.) (final judgment issued

Jan. 30, 1998).

10.

Bays v. Ohio, No. 99-8376 (U.S.) (cert. denied April 24, 2000).

11.

State v. Bays, No. 98-520 (Ohio) (final judgment issued Oct. 13, 1999).

12.

State v. Bays, No. 95 CA 118 (Ohio Ct. App., 2d Dist.) (final judgment issued

Jan. 30. 1998).

13.

State v. Bays, No. 1994 CR 0030 (Green County Court of Common Pleas)

(sentence imposed Dec. 15, 1995).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

LIST OF PARTIES ........................................................................................................ ii

LIST OF DIRECTLY RELATED PROCEEDINGS ..................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

STATEMENT ................................................................................................................. 1

REASONS FOR DENYING CERTIORARI .................................................................. 5

I.

The question whether Bays should have been granted an expanded

certificate of appealability is not certworthy. ............................................... 6

II.

The Court should not take this case to decide whether murderers

convicted before Atkins are entitled to the assistance of counsel in

post-conviction proceedings. ........................................................................ 10

CONCLUSION............................................................................................................. 12

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Ata v. Scutt,

662 F.3d 736 (6th Cir. 2011) .................................................................................... 9

Atkins v. Virginia,

536 U.S. 304 (2002) .........................................................................................passim

Bays v. Shoop,

No. 18A941 (Mar. 19, 2019) ................................................................................. 1, 5

Bays v. Warden, Chillicothe Corr. Inst.,

807 F. App’x 481 (6th Cir. 2020) .............................................................................. 5

Bobby v. Van Hook,

558 U.S. 4 (2009) .................................................................................................... 12

Frazier v. Jenkins,

770 F.3d 485 (6th Cir. 2014) .................................................................................... 9

Hill v. Mitchell,

842 F.3d 910 (6th Cir. 2016) .................................................................................... 7

Hooks v. Workman,

689 F.3d 1148 (10th Cir. 2012) .............................................................................. 11

Issa v. Bradshaw,

910 F.3d 872 (6th Cir. 2018) .................................................................................. 11

McQuiggin v. Perkins,

569 U.S. 383 (2013) .................................................................................................. 9

Miller-El v. Cockrell,

537 U.S. 322 (2003) .................................................................................................. 7

Mitchell v. United States,

140 S. Ct. 2624 (2020) ............................................................................................ 10

Moore v. Texas,

139 S. Ct. 666 (2019) ................................................................................................ 6

Penney v. United States,

870 F.3d 459 (6th Cir. 2017) .................................................................................... 7

v

Ryan v. Gonzales,

568 U.S. 57 (2013) .................................................................................................... 9

Shoop v. Hill,

139 S. Ct. 504 (2019) ................................................................................................ 6

State v. Bays,

159 Ohio App. 3d 469 (2d Dist. 2005) ...................................................................... 3

State v. Bays,

87 Ohio St. 3d 15 (1999) ....................................................................................... 1, 2

State v. Lott,

97 Ohio St. 3d 303 (2002) ......................................................................................... 2

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................ 12

Statutes

28 U.S.C. §2244 .............................................................................................................. 7

28 U.S.C. §2254 ............................................................................................................ 11

vi

INTRODUCTION

This is a case about delay. Richard Bays is on death row because he slaughtered a wheelchair-bound elderly man so that he could take the man’s money and

buy cocaine with it. Bays was convicted over twenty-five years ago. In 2008, he

filed a federal habeas petition. And in 2013, he sought to amend that petition to

add claims for relief under Atkins v. Virginia, 536 U.S. 304 (2002). The District

Court denied Bays’s request to amend the petition, reasoning that the claim was

time-barred and that Bays was improperly attempting to delay the conclusion of his

proceedings. The court also refused to issue a certificate of appealability regarding

the decision not to allow amendment. The Sixth Circuit declined to expand the certificate of appealability. Justice Sotomayor did too. See Order, Bays v. Shoop, No.

18A941 (Mar. 19, 2019) (Sotomayor, J., in chambers).

After losing the claims for which he was awarded a certificate of appealability, Bays repackaged his application to Justice Sotomayor into his certiorari petition. He now claims the Court should grant certiorari to decide the factbound question whether he should have been awarded a certificate of appealability to challenge

the District Court’s refusal to allow a dilatory amendment.

Because Bays presents no certworthy question or meritorious claim, the

Court should deny certiorari, putting this matter to rest once and for all. This case

has gone on much too long already.

STATEMENT

1. In November 1993, Bays murdered 76-year-old, wheelchair-bound Charles

Weaver in his home. State v. Bays, 87 Ohio St. 3d 15, 15 (1999). An autopsy of

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Weaver’s body revealed two stab wounds to the chest, wounds on the neck, and

several contusions, abrasions, and lacerations on the head consistent with blows

from a blunt object. Id. at 16.

Bays eventually confessed to the slaying. Id. He told detectives that he went

to Weaver’s house after smoking crack cocaine. There, he asked Weaver to lend him

$30. Weaver replied that he had no money. Id. At that point, Bays killed Weaver

by stabbing him with a kitchen knife after hitting him over the head with a battery

charger and a portable tape recorder.

Id.

Bays then emptied Weaver’s wallet,

taking $25 in cash and $9 in food stamps. Id. at 16–17. Bays left, bought crack,

and smoked it. He attempted to cover his tracks by throwing Weaver’s wallet and

his own clothing into the sewer. Id. at 17.

The detectives arrested Bays after his confession. While in the county jail,

Bays described his crime to another inmate, including how he had hit Weaver in the

head with a battery charger, “stabbed” Weaver “in the chest,” and then cut Weaver’s

throat “to make sure he wasn’t alive.” Id. (quoting trial testimony).

2.

A grand jury indicted Bays for aggravated murder with capital

specifications.

After Bays waived his right to a jury trial, a three-judge panel

convicted him and sentenced him to death. Id.

Bays appealed his conviction and sentence, to no avail. Later, however, this

Court decided Atkins v. Virginia, 536 U.S. 304 (2002). And the Ohio Supreme Court

held that even the already-convicted could seek Atkins relief in state-postconviction

proceedings. State v. Lott, 97 Ohio St. 3d 303, 306 (2002). Bays filed his state-

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postconviction petition seeking Atkins relief in April 2003. The trial court denied it

without a hearing.

But an Ohio appellate court reversed and remanded with

directions to fund an expert witness. State v. Bays, 159 Ohio App. 3d 469, 470 (2d

Dist. 2005). On remand, the trial court authorized funds for Bays to retain Dr.

David Hammer “to evaluate [Bays] and to assist his counsel in preparing evidence

on the factual issue of Petitioner’s [intellectual disability] status.” Entry, Return of

Writ Apx., R.151, PageID#5822.

After Dr. Hammer “evaluated [Bays] for his

[intellectual disability] status,” Notice of Intent, R.3, PageID#14, Bays voluntarily

dismissed his Atkins petition on November 9, 2007, Notice, Return of Writ Apx.,

R.151-14, PageID#5825.

3. In 2008, Bays filed a federal petition for a writ of habeas corpus. Habeas

Petition, R16. It included no claim under Atkins v. Virginia, though it did mention

that “Bays functions at the borderline level of intelligence, with an I.Q. of 74.” Id.

at ¶66, PageID#93. A magistrate judge recommended that Bays’s habeas petition

be dismissed.

Pet.App.89a–159a.

Before the District Judge ruled on those

objections, Bays amended his petition to include challenges to Ohio’s method of

execution. Amend. Pet., R.122, PageID#1671–82. Then, more than five years after

he filed his notice of intent to file a habeas petition, and more than a year after the

magistrate judge recommended dismissing the petition, Bays moved to amend his

petition again.

This time, Bays wanted to include two Atkins claims.

Mtn. to

Amend., R.153, PageID#6574–85. One argued that Bays was entitled to relief under Atkins. See Mtn. to Amend., Ex.1, R.153-1, PageID#6589. The second argued

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that Bays’s state-postconviction counsel provided constitutionally ineffective assistance with respect to his Atkins claim. See id., PageID#6621.

The magistrate judge recommended denying leave to amend. The magistrate

concluded (among other things) that the proposed Atkins claims were barred by the

statute of limitations and that Bays had been dilatory in pursuing them.

Pet.App.33a–34a.

Specifically, the magistrate noted that “Bays’ possible”

intellectual disability “was an issue at trial in 1995,” that Bays was evaluated for

intellectual disability in relation to his 2007 Atkins claim in state court, and that a

public defender, in an evidentiary hearing held in federal court, had cross-examined

one of the doctors who evaluated Bays for that 2007 claim. Pet.App.33a–34. In

light of all the discussion pertaining to Bays’s potential intellectual disability, the

magistrate judge determined, any “claim that Bays is [intellectually disabled] could

have been made” earlier and the attempt to raise it so late in the proceedings

“evidence[d] a dilatory motive.” Pet.App.35a–36a.

The District Court adopted the magistrate’s recommendation and denied the

amendment.

Pet.App.6a–9a.

When the District Court later denied substantive

relief on Bays’s petition, it granted a certificate of appealability on multiple claims,

but denied a certificate on the question whether Bays should have been allowed to

add the Atkins claims. Pet.App.40a–41a.

Bays then petitioned the Sixth Circuit to grant him an expanded certificate of

appealability on several claims, including the denial of leave to amend his habeas

petition to include his two Atkins claims. Mtn. for COA, R.8, 6th Cir. No. 18-3101

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(Mar. 30, 2008). The Sixth Circuit denied Bays’s motion for an expanded certificate

of appealability. Pet.App.1a–2a. Bays sought en banc review of that denial, but the

Sixth Circuit denied that request as well.

Pet.App.62a.

Bays then sought an

expanded certificate on the Atkins claims from Justice Sotomayor. She too declined

to expand the certificate of appealability. Order, Bays v. Shoop, No. 18A941 (Mar.

19, 2019) (Sotomayor, J., in chambers).

Then, on the eve of oral argument

pertaining to Bays’s other claims—the claims for which he had obtained a

certificate of appealability—Bays moved yet again for an expanded certificate on the

Atkins issues. Pet.App.5a. The Sixth Circuit again denied his request. With the

issues set, the Sixth Circuit heard argument, took the case under advisement, and

affirmed the District Court’s denial of habeas relief. Bays v. Warden, Chillicothe

Corr. Inst., 807 F. App’x 481, 482 (6th Cir. 2020).

Bays petitioned for certiorari, again challenging his entitlement to a

certificate of appealability on the question whether the District Court abused its

discretion by denying his motion to amend.

REASONS FOR DENYING CERTIORARI

Bays’s petition presents four questions for this Court’s consideration. The

first three all ask whether Bays should have been granted a certificate of

appealability on the question whether the District Court abused its discretion by

refusing to allow an untimely amendment to Bays’s habeas petition. Pet.i. The

fourth asks whether murderers (like Bays) convicted before the decision in Atkins

are entitled to effective assistance of counsel in state-postconviction proceedings

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pertaining to Atkins. Pet.ii. None of these questions is worthy of the Court’s review.

I.

The question whether Bays should have been granted an expanded

certificate of appealability is not certworthy.

The first three of Bays’s questions all ask something like the following ques-

tion: Should Bays have been granted a certificate of appealability with respect to

the question whether the District Court abused its discretion in refusing to allow

him to amend his habeas petition to add an Atkins claim? Bays’s petition seeking

review of this question is simply a longer version of the argument he presented to

Justice Sotomayor last year when he sought an expanded certificate of

appealability.

Indeed, his application to Justice Sotomayor and his current

certiorari petition are almost identical. The most significant change is a small one:

Bays added citations to Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam) and

Shoop v. Hill, 139 S. Ct. 504 (2019) (per curiam). But those citations are immaterial

to the questions presented because neither case had anything to do with the

question whether to expand a certificate of appealability to include late-filed claims,

which is the only issue at stake here. What is more, both Moore and Hill were

summary reversals that applied already-binding case law. Neither case broke new

ground, and so neither strengthened or weakened the case for expanding the

certificate of appealability.

As all this suggests, Bays’s petition raises factbound questions and seeks

pure error correction. That is enough to defeat his petition; this Court does not

grant certiorari to resolve case-specific errors. But in this case, Bays has not even

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identified an error. To the contrary, the Sixth Circuit and Justice Sotomayor correctly denied the request to expand the certificate of appealability, because Bays’s

arguments for doing so are meritless. To win a certificate of appealability, a habeas

petitioner must show “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 v.

Cockrell, 537 U.S. 322, 327 (2003). Bays has not made that showing. To see why,

recall how the Atkins issues came to be involved in this case. Bays, in 2013, sought

to amend his habeas petition, which he filed in 2008, to include an Atkins claim.

The District Court denied him leave to amend. On appeal, the denial of leave to

amend would have to be reviewed for abuse of discretion. See, e.g., Penney v. United

States, 870 F.3d 459, 461 (6th Cir. 2017); Hill v. Mitchell, 842 F.3d 910, 922 (6th

Cir. 2016). Thus, Bays sought a certificate of appealability not on the merits of his

Atkins claim, but instead on the question whether the District Court erred in

denying leave to amend. On that score, jurists of reason could neither conclude that

the District Court erred nor conclude that the issues deserve encouragement to

proceed further. Miller-El, 537 U.S. at 327. The District Court denied leave to

amend both because the claim fell outside the relevant one-year statute of

limitations and because it found Bays acted with a dilatory motive. It did not abuse

its discretion with respect to either of these conclusions, let alone both.

First, the District Court did not abuse its discretion in concluding that the

Atkins claims were outside the one-year statute of limitations. Under 28 U.S.C.

7

§2244(d)(1)(D), petitioners may seek habeas relief within one year of “the date on

which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.”

Bays, the District Court

determined, could not rely on this provision to justify his bringing the Atkins claims

only in 2013.

After all, Bays’s alleged intellectual disability had been an issue

during his trial and in state-postconviction proceedings—all of which predated the

initial 2008 federal habeas petition. In denying the motion for leave, the District

Court correctly ruled that the factual predicate of these claims was not “newly

discovered” because the issue of intellectual disability was known to be an issue

much earlier, including at Bays’s original trial. See Pet.App.14a–16a.

Second, the District Court correctly determined that Bays had unjustifiably

delayed raising his Atkins claims. The court—counting from the time of the original

trial—had this to say about the 2013 request to amend: “In the ensuing twenty

years, Bays has been represented by a succession of skilled and trained attorneys,

all of whom knew his possible [intellectual disability] was an issue. It is no insult to

his dignity as a human being to conclude that he had enough time prior to May 24,

2013, to raise and litigate his claim or to infer from the fact that he wants to ‘start

over’ with a new lawyer that he has a dilatory motive in seeking to amend at this

late stage.” Pet.App.17a–18a. This dilatory motive provided a second valid basis

for denying the motion for leave to amend.

The District Court also disposed of various reasons that Bays offered to

justify his long delay. The court rejected Bays’s arguments that he could not bring

8

his claim earlier because his state-court attorney was also his attorney at the time

of the original habeas petition. Any possible conflict in the habeas attorney raising

her own incompetence was cured when that attorney withdrew from the case in

2010. Pet.App.15a. The District Court also brushed aside the argument that Bays’s

asserted intellectual disability should have tolled the statute of limitations. That

argument might make sense if Bays had represented himself pro se, but he had

been represented by accomplished attorneys throughout his habeas proceedings.

Pet.App.18a (discussing Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011)); see also

Ryan v. Gonzales, 568 U.S. 57, 68 (2013) (“[g]iven the backward-looking, recordbased nature of most federal habeas proceedings,” counsel can raise most claims

despite client’s disability). Nor did the District Court find merit in the idea that

Bays’s delay should be excused because he is actually innocent of the death penalty.

“‘[T]enable actual-innocence gateway pleas are rare.’” McQuiggin v. Perkins, 569

U.S. 383, 386 (2013) (quotation omitted). Here, Bays had not and cannot identify

anything that clearly establishes his intellectual disability. True enough, he identifies some evidence of intellectual disability. See Pet.11–12. But if that were enough

to justify overlooking his delay, then the timing limits on federal habeas relief

“would never apply to Atkins claims.” Frazier v. Jenkins, 770 F.3d 485, 507 (6th Cir.

2014) (Sutton, J., concurring in part). That would completely undermine the finality and federalism concerns that AEDPA is supposed to protect.

*

9

Because the District Court did not abuse its discretion in denying leave to

amend, and because no reasonable jurist could conclude otherwise, the Court of

Appeals properly refused to expand the certificate of appealability. Bays thus seeks

factbound error correction in a case involving no error.

II.

The Court should not take this case to decide whether murderers

convicted before Atkins are entitled to the assistance of counsel in

post-conviction proceedings.

The foregoing shows that Bays’s argument for a certificate of appealability is

meritless. From that, it follows that the Court should decline to hear the first three

of Bays’s questions presented. That leaves only the fourth question: Do murderers,

like Bays, convicted before the decision in Atkins, have “a right to the effective assistance of counsel in litigating a post-conviction claim of intellectual disability.”

Pet.ii. While this question is less case-specific than the others, the Court should decline to hear it for three reasons.

First, the question is not presented by this case. Unless this Court concludes

that Bays is entitled to a certificate of appealability on the Atkins claim, the question whether Bays was denied a right to effective counsel in litigating that claim

never arises. Thus, because Bays’s request for a certificate of appealability is meritless, the Court will have no way to reach this issue. What is more, because the District Court and Sixth Circuit denied a certificate of appealability, they never

reached the issue either. As a result, the question is “not adequately presented” because the lower courts “did not need to resolve” it. Mitchell v. United States, 140 S.

Ct. 2624, 2625 (2020) (Sotomayor, J., concurring in denial of stay).

10

Second, the question presents no circuit split in need of resolution. Bays

claims a conflict with Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), which recognized a right to assistance of counsel in “jury-based Atkins proceedings of the kind

employed in Oklahoma.” Id. at 1183. But there is no conflict. For one thing, the

Sixth Circuit did not reach the issue whether Bays had a right to assistance of

counsel, and so could not possibly have issued a decision at odds with the Tenth

Circuit’s. For another, Bays’s Atkins claims were litigated in a post-conviction proceeding tried before the bench, not before a jury, distinguishing his case from Hooks.

And finally, the question Bays presents is of fading relevance: he asks whether

those convicted before the 2002 Atkins decision have a right to effective counsel in

post-conviction proceedings raising an Atkins issue. Pet.ii. Because Atkins was decided twenty years ago, the question is not likely to arise in very many cases going

forward. Cf., e.g., Issa v. Bradshaw, 910 F.3d 872, 877 (6th Cir. 2018) (denying en

banc review because the “number of cases presenting this issue is small and growing smaller”) (Sutton, J, concurring in denial), cert. denied, 139 S. Ct. 2616 (2019).

Finally, the claim lacks merit. As an initial matter, AEDPA expressly prohibits seeking federal habeas relief based on counsel’s performance in postconviction

proceedings. 28 U.S.C. §2254(i). What is more, Bays’s counsel was anything but

ineffective here. She won an Ohio appeals court victory to get a funded expert to

evaluate Bays. Only after that did Bays and his counsel decline to pursue relief under Atkins in state court—presumably because the expert was unable to develop a

plausible basis for an intellectual-disability diagnosis. Counsel was not ineffective

11

for failing to win an Atkins claim in a case involving a non-intellectually-disabled

defendant. See, e.g., Strickland v. Washington, 466 U.S. 668, 691, 699 (1984); Bobby

v. Van Hook, 558 U.S. 4, 10 (2009).

CONCLUSION

The Court should deny Bays’s petition for writ of certiorari.

Respectfully submitted,

DAVE YOST

Attorney General of Ohio

/s/ Benjamin M. Flowers

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

BRENDA S. LEIKALA

Senior Assistant Attorney General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@ohioattorneygeneral.gov

Counsel for Respondent

12