Opposition Brief — James Galen Hanna, Petitioner v. Tim Shoop, Warden

No. 21-5025

In the Supreme Court of the United States

___________________________________

JAMES GALEN HANNA,

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

___________________________________

DAVE YOST

Attorney General of Ohio

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

SAMUEL C. PETERSON

Deputy Solicitor General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@OhioAGO.gov

Counsel for Respondent

CAPITAL CASE –EXECUTION SET FOR MAY 18, 2022

QUESTION PRESENTED

Should the Court rely on pre-AEDPA case law to create an exception to 28

U.S.C. §2244(b)’s prohibition on second or successive petitions?

i

LIST OF PARTIES

The Petitioner is James Hanna, 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

Hanna’s list of directly related proceedings is incomplete. The directly related

proceedings should also include the following cases:

Ohio Court of Common Pleas:

State v. Hanna, No. 98CR17677 (Warren Cnty., Mar. 22, 2001)

Ohio Court of Appeals:

State v. Hanna, 2001-Ohio-8623 (Ohio Ct. App. 2001)

Ohio Supreme Court:

State v. Hanna, 96 Ohio St. 3d 1438 (2002)

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 ................................................................................................................. 2

REASONS FOR DENYING THE WRIT ....................................................................... 9

CONCLUSION............................................................................................................. 17

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Coleman v. Thompson,

501 U.S. 722 (1991) ................................................................................................ 16

Davila v. Davis,

137 S. Ct. 2058 (2017) ............................................................................................ 16

Hanna v. Ishee,

694 F.3d 596 (6th Cir. 2012) .......................................................................... 5, 6, 11

Hanna v. Robinson,

571 U.S. 844 (2013) .................................................................................................. 6

Magwood v. Patterson,

561 U.S. 320 (2010) .......................................................................................... 12, 14

Martinez v. Ryan,

566 U.S. 1 (2012) ...................................................................................... 6, 7, 15, 16

McClesky v. Zant,

499 U.S. 467 (1991) ........................................................................................ 1, 8, 15

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................................................................................ 13

Singleton v. Norris,

319 F.3d 1018 (8th Cir. 2003) .......................................................................... 14, 15

Slack v. McDaniel,

529 U.S. 473 (2000) .......................................................................................... 12, 14

Stanko v. Davis,

617 F.3d 1262 (2010) .............................................................................................. 14

State v. Hanna,

2001-Ohio-8623 (Ohio Ct. App. 2001) .................................................................. 3, 4

State v. Hanna,

95 Ohio St. 3d 285 (2002) ..................................................................................... 2, 3

State v. Hanna,

96 Ohio St. 3d 1438 (2002) ....................................................................................... 4

v

Stewart v. Martinez-Villareal,

523 U.S. 637 (1998) .......................................................................................... 13, 14

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................................. 4

In re Torrence,

828 F. App’x 877 (4th Cir. 2020) ............................................................................ 14

Trevino v. Thaler,

133 S Ct. 1911 (2013) ....................................................................................... 15, 16

United States v. Barrett,

178 F.3d 34 (1st Cir. 1999) ..................................................................................... 13

Urinyi v. United States,

607 F.3d 318 (2d Cir. 2010) .................................................................................... 14

Statutes

28 U.S.C. §2241 ............................................................................................................ 14

28 U.S.C. §2244 .....................................................................................................passim

Other Authorities

Mot. to Remand, In re Hanna, No. 19-3881.............................................................. 7, 8

vi

INTRODUCTION

James Hanna is looking for a loophole. Except in narrow circumstances, federal courts are forbidden from entertaining second or successive habeas petitions. 28

U.S.C. §2244(b). If a federal court rejects a petitioner’s request to file a second or

successive petition, the petitioner may not appeal that denial.

28 U.S.C.

§2244(b)(3)(E). In this case, the Sixth Circuit denied Hanna’s request to file a second

or successive petition. This Court has no authority to review that denial. Id. Hanna

recognizes that. So, instead of challenging the denial of his request to file a second

or successive petition, he argues that his petition was not second or successive in the

first place. If Hanna is right, then he did not need permission to file his petition and

the lower courts erred. Pet.1.

The lower courts did not err. Hanna’s petition raised claims that he had already raised—and lost—in a prior petition. See Pet.App.4–5. That is the prototypical

example of a second or successive petition. See §2244(b)(1); cf. also McClesky v. Zant,

499 U.S. 467, 482–84 (1991). Hanna’s petition is thus a thinly disguised attempt to

challenge the denial of authorization to file a second or successive petition—a challenge this Court lacks jurisdiction to entertain. And even if the Court has jurisdiction, Hanna’s petition presents no issue worthy of the Court’s review: he seeks pure

error correction of a case in which the lower court did not err. True, Hanna claims

his case presents a circuit split. But the split he identifies does not exist, and it would

not be implicated even if it did.

The Court should deny Hanna’s petition.

1

STATEMENT

1. James Hanna, while already serving a life sentence for one aggravated murder, committed another. More specifically, he murdered his cellmate, Peter Copas.

See State v. Hanna, 95 Ohio St. 3d 285, 286 (2002). Hanna killed Copas in part because Copas had turned off Hanna’s television. Id. at 286–87. Hanna sharpened a

paintbrush handle into a shank and stabbed Copas in the eye. Id. Part of the shank

penetrated Copas’s brain and broke off inside his head. Id. With the shank no longer

usable, Hanna beat Copas with a padlock-filled sock. Id. Hanna beat Copas intermittently for several hours. See id. at 288. Copas eventually died of the injuries he

sustained. Id. Hanna would later express regret that the shank he used had broken

so easily; Hanna had hoped to stab even deeper into Copas’s brain. Id. at 292.

2. Ohio courts convicted Hanna of aggravated murder. Id. at 290. During the

mitigation phase, Hanna’s counsel presented the testimony of Dr. Kathleen Burch.

Dr. Burch testified that Hanna suffered from undiagnosed attention deficit disorder,

antisocial personality disorder, that portions of his brain were impaired and dysfunctional, and that Hanna had experienced “some organic injury to his brain.” Id. at

311–12. Dr. Burch also testified that Hanna’s family members told her that Hanna,

while growing up, had been sexually abused by a neighbor and by one of his foster

families. Id. at 307, 310. Hanna’s trial counsel presented corroborating testimony

from Patricia Cutcher, one of Hanna’s sisters. Cutcher testified about Hanna’s difficult upbringing and confirmed that Hanna had been sexually abused as a child. Id.

at 307, 309. Neither the jury nor the trial court found the mitigating evidence

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sufficiently compelling, however: the jury recommended, and the trial court imposed,

a death sentence. Id at 290.

Hanna appealed his conviction and sentence. After an intermediate court of

appeals affirmed, see State v. Hanna, 2001-Ohio-8623 (Ohio Ct. App. 2001), Hanna

appealed to the Ohio Supreme Court, Hanna, 95 Ohio St. 3d 285. There, Hanna argued that his trial counsel failed to present sufficient mitigation evidence. In other

words, Hanna sought relief on an ineffective-assistance-of-counsel claim. Hanna argued that his attorneys, during the mitigation phase, should have presented additional evidence about the abuse that Hanna had suffered as a child. Hanna, 95 Ohio

St. 3d at 306–07.

The Ohio Supreme Court rejected Hanna’s claim. Id. at 307. It additionally

conducted its own, independent review of Hanna’s sentence. As part of that review,

the court concluded that Hanna’s troubled history as a child, his psychological problems, and his organic brain injury did not require a sentence other than death. The

court recognized that Hanna had committed a “senseless, horrific murder.” Id. at

312. And it noted that Hanna’s sentence was proportionate to “death sentences approved for murders by inmates in detention facilities … and for offenders with prior

murder convictions.” Id. at 313 (citations omitted). It thus affirmed the death sentence.

3. Hanna filed a petition for state-postconviction relief even before concluding

his direct appeal. Hanna again argued that he had received ineffective assistance of

trial counsel. He said that his attorneys should have done much more to prepare for

3

the mitigation phase of his trial. See Postconviction Pet., Hanna v. Ishee, No. 1:03cv-801 (“Hanna I”), R.163-3, PageID#4064–77. Most relevant here, Hanna claimed

that his trial counsel were ineffective because they failed to present testimony from

Hanna’s family about the sexual abuse he had suffered as a child.

Id. at

PageID#4075. (This despite the fact that, as noted above, the lawyers did present at

least some testimony from Hanna’s sister about that very issue.) Hanna also claimed

that counsel should have prepared Dr. Burch to testify about the brain damage that

Hanna had suffered. Id. at PageID#4073–76; PageID#4287–92. Specifically, Hanna

argued that his counsel should have asked Dr. Burch to testify about how the combination of Hanna’s brain damage and the prison environment contributed to Hanna’s

attack on Copas. See PageID#4289–92.

The postconviction court rejected Hanna’s petition. It held that Hanna had

failed to allege facts sufficient to support a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984). The court determined that trial

counsel’s choice of mitigation strategy did not constitute ineffective assistance. Order, Hanna I, R.163-4, PageID#4720. Neither did trial counsel’s investigation of

Hanna’s childhood and background. Id. at PageID#4721. A state appellate court

affirmed the denial of postconviction relief. State v. Hanna, 2001-Ohio-8623 (Ohio

Ct. App. 2001). The Ohio Supreme Court denied review. State v. Hanna, 96 Ohio St.

3d 1438 (2002).

4. Hanna filed his first federal petition for a writ of habeas corpus in 2003.

Pet. for Writ of Habeas Corpus, Hanna I, R.10. That petition raised ten claims for

4

relief, including a claim that Hanna received ineffective assistance during the mitigation phase of his trial. Id. Hanna offered several reasons why he believed that his

trial counsel had been ineffective. He claimed that his counsel had not presented

sufficient evidence about the way his behavior was molded by the combination of his

psychological makeup and thirty years’ imprisonment. Id. at 16–17. Hanna further

claimed that his lawyers had not presented enough evidence about the sexual abuse

he suffered as a child. Id. at 17–18.

A magistrate judge recommended denying Hanna’s petition, Report and Recommendation, Hanna I, R.126, and the District Court accepted that recommendation,

Order, Hanna I, R.132. Significantly, the District Court did not hold that Hanna had

procedurally defaulted any of his ineffective-assistance claims. See Report and Recommendation, Hanna I, R.126 at 44. Instead, the District Court rejected Hanna’s

claims on the merits. See id. at 44–63.

Despite ruling against Hanna, the District Court granted a certificate of appealability on a handful of claims, including his claim that counsel was ineffective for

failing to conduct a more-detailed investigation of his childhood. See Report and Recommendation, Hanna I, R.140 at 14; Order, Hanna I, R.144. The Sixth Circuit affirmed the denial of Hanna’s petition. Hanna v. Ishee, 694 F.3d 596, 601 (6th Cir.

2012). Hanna failed to brief, and thus abandoned, any argument that counsel was

ineffective for failing to present additional testimony from his siblings. Id. at 605 n.2.

And the ineffective-assistance theories that Hanna did brief fared no better. Id. at

617–19. For example, the Sixth Circuit rejected Hanna’s argument that trial counsel

5

provided ineffective assistance by failing to prepare Dr. Burch to testify about how

the prison environment, combined with Hanna’s “organic neurological defects and

troubled childhood,” influenced Hanna’s decision to murder a cellmate. Id. at 617.

The court held that Hanna’s claim amounted to an argument that his trial counsel

“should have pursued a different mitigation strategy.” Id. at 618. The benefits of the

theory that Hanna proposed, however, were cumulative of other trial testimony and

“simply too speculative to prove prejudice under Strickland’s and AEDPA’s combined

doubly high standard for relief.” Id. at 619.

Hanna filed a petition for a writ of certiorari. This Court denied it. Hanna v.

Robinson, 571 U.S. 844 (2013).

5. After the Court denied his certiorari petition, Hanna filed a motion seeking

new habeas counsel. See Motion, Hanna I, R.152. Hanna argued that he needed new

counsel because of this Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012)—a

decision that issued after Hanna filed his first petition for a writ of habeas corpus,

but before the Sixth Circuit affirmed the denial of that petition. See Order Denying

Mot. to Appoint New Counsel, Hanna I, R.154, PageID#2889–90. The Court in Martinez reaffirmed that, as a general matter, there is no right to effective counsel in

state-postconviction proceedings. 566 U.S. at 8–9. But it held that, if state-postconviction proceedings provide the only avenue to raise an ineffective-assistance-of-trialcounsel claim, then a habeas petitioner may point to state-postconviction counsel’s

ineffectiveness (or the absence of postconviction counsel) as cause to excuse an otherwise-defaulted ineffective-assistance-of-trial-counsel claim. Id. at 9.

6

Hanna argued that he was entitled to new habeas counsel in light of Martinez.

See Order Denying Mot. to Appoint New Counsel, Hanna I, R.154, PageID#2889–90.

The Ohio Public Defender’s office had represented him in his state-postconviction

proceedings and in his first habeas proceeding. According to Hanna, representatives

of the Ohio Public Defender could not be expected to argue that their office had provided ineffective assistance. That, Hanna claimed, meant that he been deprived of

an opportunity to take advantage of Martinez’s new rule. Id. After initially denying

Hanna’s request, id., the District Court eventually reconsidered and appointed new

counsel to represent Hanna, Order, Hanna I, R.158, PageID#2921; Order, Hanna I,

R.162, PageID#2927.

Hanna’s new counsel filed a second petition for a writ of habeas corpus. Pet.,

Hanna v. Shoop, 3:19-cv-231 (“Hanna II”), R.1. In his second petition, Hanna asserted four claims for relief. Id. at PageID#18–19. Three of his claims alleged ineffective assistance of trial counsel, while the other alleged that cumulative errors deprived him of a fair sentencing hearing. Id. The trouble for Hanna was 28 U.S.C.

§2244(b), which allows the filing of “second or successive” petitions only in very narrow circumstances and only with permission of an appellate court. The District Court

concluded that Hanna’s petition was a second or successive petition, and thus transferred Hanna’s petition to the Sixth Circuit.

Transfer Order, Hanna II, R.17,

PageID#716–28. Hanna, in turn, filed a motion to remand, arguing that his second

habeas petition was not a second or successive petition as that term is used in §2244.

Mot. to Remand, In re Hanna, No. 19-3881, Doc.8-1. According to Hanna, “a second-

7

in-time petition is a ‘second or successive’ petition only if it constitutes an ‘abuse of

the writ.’” Pet.App.4. And his petition, Hanna said, was not an abuse of the writ.

Because Hanna’s argument rested on the abuse-of-the-writ doctrine, it is important to pause and say something about that doctrine. Before Congress adopted

AEDPA, the abuse-of-the-writ doctrine “define[d] the circumstances in which federal

courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470

(1991). Under that doctrine, a federal court could dismiss a second or successive habeas petition if: (1) the petition did not allege a new ground for relief, or (2) the new

grounds for relief that the petition did allege could have been raised in an earlier

petition. Id. at 486–87, 489–90. Hanna argued that he could not have raised his

ineffective-assistance claims earlier; according to him, his prior counsel’s alleged conflict meant that his second-in-time petition was his first chance to assert that he had

received ineffective assistance of state-postconviction counsel. Mot. to Remand, In re

Hanna, No. 19-3881, Doc.8-1 at 11–14. Thus, Hanna said, his petition was not an

abuse of the writ and so not second or successive.

The Sixth Circuit, in a per curiam order joined by Judges Siler and Clay, denied

Hanna’s motion and denied him permission to file a second or successive petition.

Pet.App.3. The court held that, in Hanna’s previous appeal, it had “specifically rejected Hanna’s claim that he was deprived of effective assistance in mitigation because his counsel failed to present a psychologist to testify as to how organic neurological defects and a troubled childhood, in combination with lifelong incarceration,

8

contributed to the aggravated murder” of Copas. Pet.App.3. Hanna’s petition, in

other words, did exactly what §2244 prohibits: it presented a claim that had been

presented in a prior petition. Pet.App.4–5; see also §2244(b)(1). The Sixth Circuit

rejected Hanna’s argument that, because his petition was not an abuse of the writ, it

was therefore not second or successive. The court apparently recognized that Hanna’s

petition was an abuse of the writ, since Hanna had already raised the ineffectiveassistance claims in his first petition. See Pet.App.4. The court also held that, “even

if” Hanna’s petition “was not an abuse of the writ,” Pet.App.7, he had not made any

of the showings necessary to justify the filing of a second or successive petition.

Pet.App.5–6. Finally, the Sixth Circuit held that Hanna’s underlying claims of ineffective assistance lacked merit. There was no evidence that either his postconviction

counsel or his trial counsel provided him with constitutionally inadequate assistance.

See Pet.App.6–7.

Judge Moore dissented. She embraced Hanna’s view that petitions must be

barred by the abuse-of-the-writ doctrine in order to qualify as second or successive.

She would have deemed Hanna’s petition non-abusive. And, on that basis, she would

have held the petition not to be second or successive. Pet.App.10–11.

REASONS FOR DENYING THE WRIT

Hanna’s habeas petition is a second or successive petition. This Court lacks

jurisdiction to review the lower courts’ refusals to permit the filing of that petition.

28 U.S.C. §2244(b)(3)(E). Hanna attempts to avoid §2244’s jurisdictional bar by arguing that he is appealing the characterization of his petition as a second or successive petition, not the Sixth Circuit’s decision denying him permission to file that

9

petition. That is not a question worthy of this Court’s review: the question does not

implicate a circuit split, nor does it bear any other features of a case deserving of this

Court’s attention.

1. Habeas petitioners get one bite at the apple; they may file only one habeas

petition and they must include in that petition all available grounds for relief. See

28 U.S.C. §2244(a). “A claim presented in a second or successive habeas corpus application … that was presented in a prior application shall be dismissed.” §2244(b)(1).

And the same is generally true of not-previously-raised claims.

But as the qualifier “generally” suggests, the second rule comes with exceptions. “A claim presented in a second or successive habeas corpus application … that

was not presented in a prior application” must be dismissed except in two situations.

§2244(b)(2) (emphasis added). The first occurs when the claim “relies on a new rule

of constitutional law, made retroactive to cases on collateral review by the Supreme

Court.” §2244(b)(2)(A). The second arises when the new claims rest on a factual

predicate that “could not have been discovered previously through the exercise of due

diligence” and that, if proven, would establish by clear and convincing evidence that

“no reasonable factfinder would have found the applicant guilty of the underlying

offense.” §2244(b)(2)(B).

Even if a second habeas petition contains one of the two types of claims authorized by §2244(b)(2), a habeas petitioner must still obtain permission before filing.

§2244(b)(3)(A). Permission will be granted only if the petitioner “makes a prima facie

showing that the application” qualifies for review under either of these two narrow

10

exceptions. §2244(b)(3)(C). An appellate court’s decision to grant or deny permission

to file a second habeas petition is not subject to further review; its decision “shall not

be the subject of a petition for rehearing or for a writ of certiorari.” §2244(b)(3)(E).

Hanna seeks to do what §2244(b) prohibits. Remember, Hanna argues at this

stage that his trial counsel provided ineffective assistance during the mitigation

phase of his capital trial. Pet., Hanna II, R.1, PageID#18–19. He had already raised,

and lost, the very same claim in his first habeas petition. See Hanna v. Ishee, 694

F.3d 596, 617–19 (6th Cir. 2012). As the Sixth Circuit held when it denied Hanna

permission to file a second or successive petition, it had “previously rejected Hanna’s

claims that his counsel were ineffective” for failing to present evidence of his brain

damage and history of sexual abuse. Pet.App.4. As such, the Sixth Circuit correctly

concluded that Hanna’s claim had to be dismissed under §2244(b)(1).

Because Hanna already litigated the ineffective-assistance claim in his first

habeas petition, §2244(b)(2) and its narrow exceptions permitting second or successive petitions are irrelevant—those exceptions apply only to not-yet-litigated claims.

But even if subsection (b)(2) applied, it would not help Hanna. His claim does not

rely on “a new rule of constitutional law,” §2244(b)(2)(A), or on a previously undiscoverable factual predicate, §2244(b)(2)(B). Thus, his case does not fit the narrow exceptions in which second or successive petitions are allowed.

In sum, because federal courts (including this one) lack jurisdiction to review

the denial of applications to file a second or successive petition, this Court has no

11

jurisdiction to review the Sixth Circuit’s order denying Hanna permission to file a

second or successive petition. §2244(b)(3)(E)

2. Hanna knows that he cannot challenge the denial of his application to file

a second or successive petition. So he claims not to challenge that denial. Instead,

he seeks review of the question whether his second-in-time habeas petition was in

fact second or successive. Hanna claims that the circuits disagree about what constitutes a second or successive petition. He is wrong. But even if he were right, his case

would not implicate the circuit split. Because this case presents no circuit split,

Hanna seeks factbound error correction. And because the Sixth Circuit did not err,

this Court should deny Hanna’s certiorari petition.

a. Not every second-in-time petition is a second or successive petition. See

Slack v. McDaniel, 529 U.S. 473, 485–86 (2000). Accordingly, this Court may review

whether an appellate court properly characterized a habeas petition as second or

successive. See, e.g., Magwood v. Patterson, 561 U.S. 320, 323–24 (2010).

This Court has identified three circumstances in which a second-in-time petition does not qualify as a second or successive petition for purposes of §2244(b). First,

a second-in-time petition is not “second or successive” if the federal courts dismissed

the first petition for failure to exhaust state-court remedies. Slack, 529 U.S. at 485–

86. Second, a second-in-time petition is not second or successive if it challenges a

new, intervening state-court judgment. Magwood, 561 U.S. at 341–42. Finally, a

second-in-time petition is not second or successive with respect to claims that were

12

unripe at the time that the first petition was filed. Panetti v. Quarterman, 551 U.S.

930, 947 (2007); see also Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998).

Hanna’s case does not fit any of these exceptions and he does not argue otherwise. So if there are no additional exceptions applicable to this case, the Sixth Circuit

correctly disposed of Hanna’s case. But Hanna claims that there is one such exception. According to him, the First, Second, Fourth, Eighth, and Tenth Circuits—but

not the Sixth—have held that petitions are not “second or successive” whenever they

do not constitute an “abuse of the writ.” See Pet.30–31. And Hanna claims that,

because his second-in-time petition is not an abuse of the writ, it is not “second or

successive” under this fourth exception.

Hanna is incorrect. There is no non-abuse-of-the-writ exception to §2244(b)’s

prohibition on second or successive petitions. And none of the circuits to which Hanna

points have recognized one. Begin with the First Circuit’s decision in United States

v. Barrett, 178 F.3d 34 (1st Cir. 1999) (cited at Pet.30). The First Circuit held that a

petition qualified as an impermissible second or successive petition because it would

have constituted an abuse of the writ under pre-AEDPA doctrine. Id. at 45. It held

that “the phrase ‘second or successive’” captures, at a minimum, all second-in-time

petitions that would have qualified as an abuse of the writ. Id. As this description

shows, Barrett held that qualifying as an abuse of the writ is a sufficient condition for

qualifying as a “second or successive” petition, not a necessary condition. Hanna thus

inverts Barrett’s holding when he describes the case as holding that a habeas petition

is second or successive “only if it constitutes an ‘abuse of the writ.’” Pet.30.

13

Now consider the Tenth Circuit’s decision in Stanko v. Davis, 617 F.3d 1262

(2010) (cited at Pet.32–33). In that case, the Tenth Circuit did not interpret the

phrase “second or successive” as it appears in §2244(b). Id. at 1264–65; see also id.

at 1265 n.2. Instead, it held that §2244’s limitations on second or successive petitions

do not apply to petitions filed under a different statutory provision, 28 U.S.C. §2241.

It then applied pre-AEDPA precedent to a federal prisoner’s §2241 habeas petition—

precedent that, as noted above, defined “second or successive” petitions to include

petitions that qualified as abuses of the writ. Id. at 1267; 1269 n.5. That decision is

of no relevance in a case like this one, which everyone agrees implicates §2244(b).

Hanna’s remaining cases do not help him either. Urinyi v. United States, 607

F.3d 318, 319 (2d Cir. 2010) (per curiam) (cited at Pet.30); In re Torrence, 828 F. App’x

877, 880–82 (4th Cir. 2020) (per curiam) (cited at Pet.30–31); Singleton v. Norris, 319

F.3d 1018, 1023 (8th Cir. 2003) (cited at Pet.31). None of these three decisions—only

two of which are precedential—holds that a second-in-time petition must be an abuse

of the writ to qualify as second or successive. In Urinyi, the Second Circuit held,

consistent with Magwood, that a second-in-time habeas petition is not second or successive if it challenges a new judgment rendered after the filing of the first petition.

607 F.3d at 619. The Fourth Circuit in Torrence, in a decision consistent with Slack

and Martinez-Villareal, held that a petition was not second or successive where the

petitioner’s first petition was dismissed for failure to exhaust state remedies. 828

Fed. App’x at 880–82 (citing Slack, 529 U.S.at 478). Similarly, the Eighth Circuit in

Singleton applied Martinez-Villareal and held that a petition was not second or

14

successive where the petitioner’s new claim was not ripe at the time the petitioner

filed his first petition. Singleton, 319 F.3d at 1023 (citing Martinez-Villareal, 523 U.S.

at 643–45). True enough, each of these cases discussed pre-AEDPA precedent and

the abuse-of-the-writ doctrine. See, e.g., id. But as that discussion had no bearing on

the resolution of these cases, it constitutes, at most, non-binding dicta. And even the

dicta does not suggest that a petition qualifies as second or successive only if it constitutes an abuse of the writ.

b. Even if the circuit split that Hanna imagines were real, his case would not

implicate that split. That is because, as the Sixth Circuit held, Hanna’s second habeas petition was abusive and would have been barred by the abuse-of-the-writ doctrine if that doctrine applied. See Pet.App.4, 7. The threshold question under the

abuse-of-the-writ doctrine was whether a subsequent petition for a writ of habeas

corpus alleged a ground for relief that had not been adjudicated in prior petition.

McCleskey, 499 U.S. at 486. Hanna’s second petition did not allege a new ground for

relief and therefore qualified as an abuse of the writ. In any event, Hanna has not

challenged the Sixth Circuit’s determination that his petition qualifies as an abuse of

the writ. As such, he has forfeited any argument on that front. And given that forfeiture, the outcome of his claimed circuit split has no bearing on his case.

Hanna seems to think that the Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S Ct. 1911 (2013), somehow bear on the abuse-of-the-writ doctrine.

They do not. Under the procedural default doctrine, federal habeas petitioners generally cannot raise claims that state courts rejected “based on an adequate and

15

independent state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

But there is an exception: federal courts will forgive the procedural default if the

petitioner can show “‘cause’ to excuse his failure to comply with the state procedural

rule and ‘actual prejudice resulting from the alleged constitutional violation.’” Id. at

2064–65 (citation omitted). Martinez and Trevino hold that the ineffectiveness of

state-postconviction counsel can serve as “cause” for excusing a procedurally defaulted claim. See Martinez, 566 U.S. at 8–11 (distinguishing Coleman v. Thompson,

501 U.S. 722 (1991)). The cases have nothing at all to do with the abuse-of-the-writ

doctrine. So what Hanna seeks is an extension of Martinez and Trevino—he wants

this Court to hold that courts may ignore §2244’s bar on second or successive petitions

whenever the counsel in the first-in-time federal habeas petition labored under a conflict. See also Pet.App.10–11 (Moore, J., dissenting). That is a non-starter. It is one

thing for the Court to create an exception to a judge-made doctrine, which is what the

procedural-default doctrine is. It is quite another to make an exception to a statutory

prohibition on hearing certain cases, which is what §2244’s prohibition on second or

successive petitions is. The latter entails a legislative act of the sort that courts have

no authority to take. And in any event, this Court has stressed that Martinez and

Trevino recognize a “narrow, ‘equitable’” exception to the procedural default doctrine—an exception so narrow that it may not be extended any further even in its

application to that very doctrine. Davila, 137 S. Ct. at 2065 (quoting Martinez, 566

U.S. at 16). That precludes extending Martinez and Trevino so that they create exceptions in altogether new contexts, like the abuse-of-the-writ doctrine.

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*

In sum, Hanna seeks factbound error correction in a case where the Sixth Circuit did not err. This Court should deny his petition for a writ of certiorari.

CONCLUSION

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

Respectfully submitted,

DAVE YOST

Attorney General of Ohio

/s/ Benjamin M. Flowers

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

SAMUEL C. PETERSON

Deputy Solicitor General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@OhioAGO.gov

Counsel for Respondent

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