Petition for Writ of Certiorari — Carl Lindsey, Petitioner v. Charlotte Jenkins, Warden

Supreme Court briefJul 12, 2023

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No. ______ (CAPITAL CASE)

IN THE SUPREME COURT OF THE UNITED STATES

CARL LINDSEY,

Petitioner,

WARDEN CHARLOTTE JENKINS,

Respondent.

On Petition for Writ of Certiorari to

The United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

No execution date is presently scheduled.

Deborah L. Williams,

Federal Public Defender

Julie C. Roberts (MA 688233)

(Supreme Court Bar No. 318897)

*Counsel of Record

Jordan S. Berman (OH 0093075)

(Supreme Court Bar No. 285543)

Assistant Federal Public Defenders

Office of the Federal Public Defender

for the Southern District of Ohio

Capital Habeas Unit

10 W. Broad Street, Suite 1020

Columbus, Ohio 43215

(614) 469-4141

(614) 469-2999 (Fax)

Julie_Roberts@fd.org

Jordan_Berman@fd.org

Counsel for Petitioner Carl Lindsey

CAPITAL CASE: QUESTIONS PRESENTED

Carl Lindsey was convicted of aggravated murder and sentenced to death based on

the critical testimony of Kathy Kerr, the lone witness to testify that she saw the

victim’s wife give Lindsey a gun and saw Lindsey standing near the victim’s body.

The prosecution, however, withheld evidence that it had granted Kerr testimonial

immunity. The Sixth Circuit denied Lindsey a certificate of appealability (COA) on

his claim that the withholding of Kerr’s immunity deal violated Brady v. Maryland,

373 U.S. 83 (1963). The Sixth Circuit’s denial of a COA raises the following questions:

May a reviewing court find immaterial under Brady withheld evidence

that impeaches the prosecution’s key witness by stating that there was

“overwhelming evidence” of the petitioner’s guilt, without engaging in a

thorough analysis of the impact of the withheld evidence on the witness’

credibility and the jury’s guilt and sentencing verdicts? Compare Pet. for

Cert. in Glossip v. Oklahoma, U.S. No. 22-6500 (querying whether

withheld evidence impeaching key witness was material under Brady);

Pet. for Cert. in Glossip v. Oklahoma, U.S. No. 22-7466 (querying

whether reviewing court properly applied Brady to withheld evidence

that impeaches key witness); Pet. for Cert. in Johnson v. Alabama, U.S.

No. 22-7337 (same).

In denying a COA, did the Sixth Circuit apply an unduly burdensome

standard for granting a certificate, and is Lindsey entitled to a COA on

his Brady claim?

II.

After securing significant evidence of Fetal Alcohol Spectrum Disorder (FASD) that

trial counsel failed to investigate or present at sentencing, Carl Lindsey filed a motion

to amend his petition for writ of habeas corpus. Because he filed the motion after

timely filing a motion to alter or amend judgment under Fed. R. Civ. P. 59(e), Banister

v. Davis, 590 U.S. ___ (2022) holds that, at the time, there was “no longer a final

judgment to appeal from.” Id. at ___ (slip op. at 3). Banister leaves open a question

that is the subject of a circuit split:

When a party seeks leave to amend a petition after timely filing a motion

to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), is the party

entitled to amend upon satisfying Fed. R. Civ. P. 15’s pre-judgment

standards, or must the party also satisfy Rule 59’s standards for

amending a judgment?

DIRECTLY RELATED CASES

Ohio Supreme Court:

State v. Lindsey, 721 N.E.2d 995 (Ohio 2000)

Ohio Court of Appeals:

State v. Lindsey, 12th Dist. Brown No. CA20020202, 2003 Ohio 811 (Feb. 24,

2003)

State v. Lindsey, 12th Dist. Brown No. CA20030710, 2004 Ohio 4407 (Aug.

23, 2004)

State v. Lindsey, 12th Dist. Brown No. CA202208006, 2023 Ohio 1846 (June

5, 2023)

United States District Court:

Lindsey v. Warden, S.D. Ohio No. 1:03-cv-702 (Judgment entered Dec. 30,

2020; Opinion and Order entered July 20, 2021)

United States Court of Appeals:

Lindsey v. Jenkins, 6th Cir. No. 21-3745 (Order entered Sept. 8, 2022;

amended order entered Dec. 1, 2022)

TABLE OF CONTENTS

CAPITAL CASE: QUESTIONS PRESENTED ............................................................. i

DIRECTLY RELATED CASES ..................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE....................................................................................... 4

The State suppressed the immunity deal offered to their key

witness. ..................................................................................................... 4

II.

Lindsey sought to amend with newly discovered evidence of

brain damage and prior counsel’s failure to timely communicate

a plea offer. ............................................................................................... 9

REASONS FOR GRANTING THE WRIT .................................................................. 11

The Sixth Circuit improperly applied a more stringent

materiality standard when denying a COA on Lindsey’s Brady

claim. ....................................................................................................... 11

II.

The Sixth Circuit analyzed Lindsey’s Brady claim in a manner

conflicting with this Court’s COA standard. ......................................... 17

III.

Review is warranted where the Sixth Circuit’s application of a

higher standard to post-judgment motions to amend conflicts

with this Court’s decision in Banister v. Davis and is the subject

of a circuit split. ...................................................................................... 19

The Sixth Circuit’s decision conflicts with this Court’s

holding in Banister. ..................................................................... 19

There is a circuit split over whether to apply a higher

standard to post-judgment motions to amend. ........................... 20

The Sixth Circuit’s decision creates a circuit split by

rejecting an amended petition solely based on delay. ................ 22

CONCLUSION............................................................................................................. 24

iii

APPENDICES

Appendix A: Order, United State Court of Appeals for the Sixth

Circuit, Lindsey v. Jenkins, No. 21-3745, (Feb. 13, 2023)

(Doc. 29) ................................................................................................ A-1

Appendix B: Order, United State Court of Appeals for the Sixth

Circuit, Lindsey v. Jenkins, No. 21-3745, (Jan. 10, 2023)

(Doc. 26) ................................................................................................ A-3

Appendix C: Amended Order, United State Court of Appeals for the

Sixth Circuit, Lindsey v. Jenkins, No. 21-3745, (Dec. 1, 2022)

(Doc. 21) ................................................................................................ A-5

Appendix D: Order, United State Court of Appeals for the Sixth

Circuit, Lindsey v. Jenkins, No. 21-3745, (Sep. 8, 2022)

(Doc. 18) .............................................................................................. A-18

Appendix E: Opinion & Order, United States District Court for the

Southern District of Ohio, Lindsey v. Warden, No. 1:03-cv702, 2020 WL 7769816 (S.D. Ohio Dec. 30, 2020) (R. 159) ............... A-35

Appendix F: Opinion & Order, United States District Court for the

Southern District of Ohio, Lindsey v. Warden, No. 1:03-cv702, 2021 WL 304663 (S.D. Ohio July 20, 2021) (R. 172) ................. A-90

TABLE OF AUTHORITIES

Page(s)

Cases

Ahmed v. Dragovich, 297 F.3d 201 (3d Cir. 2002) ...................................................... 21

U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350 (11th Cir. 2006)................................. 21

Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999) ........................................................... 23

Brady v. Maryland, 373 U.S. 83 (1963) ...............................................................passim

Brown v. Louisiana, 598 U.S. ___ (2023) .................................................................. 12

Buck v. Davis, 580 U.S. 100 (2017) ................................................................. 13, 18, 24

Burtch v. Milberg Factors, Inc., 662 F.3d 212 (3d Cir. 2011) ..................................... 20

Chinn v. Shoop, 598 U.S. ___ (2022) .................................................................... 11, 12

City of Miami Fire Fighters’ & Police Officers’ Ret. Tr. v. CVS Health Corp., 46 F.4th

22 (1st Cir. 2022) .................................................................................................... 21

DeGruy v. Wade, 586 F. App’x 652 (5th Cir. 2014) ..................................................... 20

Dubicz v. Commonwealth Edison Co., 377 F.3d 787 (7th Cir. 2004) ......................... 23

Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) ................................................. 21

Fulcher v. Motley, 444 F.3d 791 (6th Cir. 2006) ......................................................... 13

Geness v. Cox, 902 F.3d 344 (3d Cir. 2018) ................................................................. 23

Giglio v. United States, 405 U.S. 150 (1972) .............................................................. 14

Glossip v. Oklahoma, U.S. No. 22-6500 ...................................................................... 17

Glossip v. Oklahoma, U.S. No. 22-7466 ...................................................................... 17

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ............................................................ 14

Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002) ....................................................... 12

Johnson v. Alabama, U.S. No. 22-7337 ...................................................................... 17

Kyles v. Whitley, 514 U.S. 419 (1995)........................................................ 12, 13, 14, 17

Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) ......................................................... 20

Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612 (6th Cir. 2010) .... 21

Lindauer v. Rogers, 91 F.3d 1355 (9th Cir. 1996) ...................................................... 21

Lindsey v. Jenkins, 6th Cir. No. 21-3745 .................................................................... 1

Lindsey v. Warden, No. 1:03-cv-702, 2020 WL 7769816 (S.D. Ohio Dec. 30, 2020) .. 1

Lindsey v. Warden, No. 1:03-cv-702, 2021 WL 304663 (S.D. Ohio July 20, 2021) ...... 2

Mayeaux v. Louisiana Health Service and Indem. Co., 376 F.3d 420 (5th Cir.

2004)........................................................................................................................ 23

Miller-El v. Cockrell, 537 U.S. 322 (2003) ...................................................... 18, 19, 22

Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986) ............................................ 23

Moore-El v. Luebbers, 446 F.3d 890 (8th Cir. 2006) ................................................... 23

O’Brien v. Vill. of Lincolnshire, 955 F.3d 616 (7th Cir. 2020).................................... 21

Richardson v. Marsh, 481 U.S. 200 (1987) ................................................................... 5

Sheffler v. Americold Realty Trust, No. 22-11789, 2023 WL 3918491 (11th Cir. June

9, 2023).................................................................................................................... 20

Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008) ............................................... 18

Slack v. McDaniel, 529 U.S. 473 (2000) ...................................................................... 18

Stallings v. Bobby, 464 F.3d 576 (6th Cir. 2006) ........................................................ 13

State v. Lindsey, 721 N.E.2d 995 (Ohio 2000) .............................................................. 4

State v. Lindsey, No. CA2003-07-010, 2004 Ohio 4407 (Ohio Ct. App. Aug. 23,

2004)........................................................................................................................ 14

In re SuperValu, Inc., 925 F.3d 955 (8th Cir. 2019) ................................................... 21

The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084 (10th Cir. 2005) ................... 21

United States v. Bagley, 473 U.S. 667 (1985) ............................................................. 13

Wearry v. Cain, 577 U.S. 385 (2016) (per curiam)...................................................... 15

Williams v. Citigroup, Inc., 659 F.3d 208 (2d Cir. 2011)............................................ 21

Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019) ..................................................... 22

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 2253 ........................................................................................................... 3

28 U.S.C. § 2253(c)(2) .................................................................................................. 18

28 U.S.C. § 2254 ........................................................................................................ 1, 3

28 U.S.C. § 2254(b)(1)(A) ............................................................................................. 22

Rules

Fed. R. Civ. P. 15(a)(2) ................................................................................................. 11

Fed. R. Civ. P. 59(e) ................................................................................... 10, 19, 20, 21

SUP. CT. R. 10(a) ..................................................................................................... 20, 24

SUP. CT. R. 10(c) ......................................................................................... 13, 18, 19, 20

Constitutional Provisions

U.S. Const. amend. V..................................................................................................... 2

U.S. Const. amend. VI ................................................................................................... 2

U.S. Const. amend. VIII .......................................................................................... 3, 10

U.S. Const. amend. XIV ................................................................................................. 3

U.S. Const. amend. XIV ............................................................................................... 10

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner Carl Lindsey respectfully requests that the Court grant a writ of

certiorari to review the decision of the United States Court of Appeals for the Sixth

Circuit in this case.

OPINIONS BELOW

The order of the Sixth Circuit denying Lindsey’s petition for rehearing en

banc with respect to his application for a certificate of appealability (COA) is

unpublished and reproduced as Appendix A, Lindsey v. Jenkins, 6th Cir. No. 213745 (Order entered February 13, 2023). The order of the Sixth Circuit denying

Lindsey’s petition for rehearing with respect to his application for a COA is

unpublished and reproduced as Appendix B, Lindsey v. Jenkins, 6th Cir. No. 213745 (Order entered January 10, 2023). The amended order of the Sixth Circuit

denying Lindsey’s application for a COA is unpublished and reproduced as

Appendix C, Lindsey v. Jenkins, 6th Cir. No. 21-3745 (Amended Order entered

December 1, 2022). The original order of the Sixth Circuit denying Lindsey’s

application is unpublished and reproduced as Appendix D, Lindsey v. Jenkins, 6th

Cir. No. 21-3745 (Order entered Sept. 8, 2022).

The decision of the district court denying Lindsey’s petition for habeas corpus

relief pursuant to 28 U.S.C. § 2254 is unpublished and available at Lindsey v.

Warden, No. 1:03-cv-702, 2020 WL 7769816 (S.D. Ohio Dec. 30, 2020) (R. 159), and

reproduced as Appendix E. The decision of the district court denying Lindsey’s

Motion to Alter or Amend the Judgment and Alter or Make Additional Findings and

to Reconsider Denial of Certificate of Appealability (COA), and Motion for Leave to

Amend his Petition is unpublished and available at Lindsey v. Warden, No. 1:03-cv702, 2021 WL 304663 (S.D. Ohio July 20, 2021) (R. 172), and reproduced as

Appendix F.

JURISDICTIONAL STATEMENT

In this petition, Lindsey seeks review of the Sixth Circuit’s amended order

denying his application for a COA in his capital case. Following this denial, the

Sixth Circuit denied his petition for rehearing en banc on February 13, 2023. The

time for filing Lindsey’s petition for certiorari was extended to July 13, 2023, by

order of Justice Kavanaugh on May 11, 2023, No. 22A988. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

The Eighth Amendment to the United States provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Section One of the Fourteenth Amendment to the United States Constitution

provides:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Section 2253 of Title 28 of the United States Code provides:

(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).

Section 2254 of Title 28 of the United States Code provides, in relevant part:

(a) The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for a writ

of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or

treaties of the United States.

STATEMENT OF THE CASE

A Brown County, Ohio jury convicted Carl Lindsey of aggravated murder in

1997, and the court sentenced him to death. The Ohio Supreme Court affirmed his

convictions and death sentence on direct appeal. State v. Lindsey, 721 N.E.2d 995

(Ohio 2000). Lindsey later learned that the State concealed favorable evidence and

raised a claim under Brady v. Maryland, 373 U.S. 83 (1963), in his post-conviction

proceedings. Through the course of his investigation, Lindsey also obtained new

evidence that previously went uninvestigated due to ineffective assistance of

counsel, and he attempted to amend his federal habeas petition to raise claims

predicated on this newly discovered evidence.

The State suppressed the immunity deal offered to their key

witness.

In the early morning hours of February 10, 1997, Joy Hoop proposed killing

her husband “Whitey” to a group of patrons she was serving at Slammer’s Bar, who

included Kathy Kerr, Carl Lindsey, Kenny Swinford, and A.J. Cox. See State v.

Lindsey, 721 N.E.2d 995, 999 (Ohio 2000). Lindsey, heavily intoxicated on alcohol

and other drugs, and vulnerable to the influence of others given his brain damage

from Fetal Alcohol Syndrome Disorder (FASD), followed Joy Hoop’s lead. The other

patrons left but Joy Hoop, Lindsey, and Kerr remained at the bar after closing.

Whitey Hoop was confronted in the parking lot of Slammer’s Bar and at least

one, non-fatal shot was fired as he sat in his truck. Id. As indicated by the blood

spatter across the parking lot, an altercation ensued before a second, fatal shot was

fired. The State filed capital murder charges against both Lindsey and Joy Hoop. At

Lindsey’s trial, the State argued that Lindsey fired the second, fatal shot. At Joy

Hoop’s subsequent trial, however, the State argued that Joy Hoop fired the second,

fatal shot. Hoop Trial Tr., PC Ex. 32, ROW App., R. 152-7, PageID 7914-15. At the

Hoop trial, the State presented a new witness for the first time, Thomas Merriman,

who testified that Hoop told him she fired the final shot because Lindsey “didn’t

finish the job.” Id. at PageID 6710-12. At both trials, Kathy Kerr, the only other

person present at the time of the offense, played a central role.

The State, however, suppressed evidence that Kerr, their key witness, had

been granted testimonial immunity. Prior to testifying at Lindsey’s trial, the

prosecutor provided a letter to Kerr granting her testimonial immunity in exchange

“for your truthful testimony and cooperation.” Immunity Letter, PC Ex. 45B, ROW

App., R. 152-9, PageID 8122. The prosecutor “believed that by offering [the

immunity] she would be truthful with us and not fearful of some incrimination by

us as a result of her being truthful.” Grennan Dep., R. 67-1, PageID 866, 872.

Believing she had this immunity, Kerr testified for the State with a version

inconsistent with her previous statements to police, which provided key details

needed to secure Lindsey’s conviction and death sentence.

Kerr’s testimony was “powerfully incriminating,” as it “expressly implicated”

Lindsey in the crime. Richardson v. Marsh, 481 U.S. 200, 208 (1987) (quotation

marks omitted). After Kerr made no assertion in her initial police statement or

grand jury testimony that she saw a gun, Trial Tr., R. 153-4, PageID 11332, Kerr

changed her testimony at Lindsey’s trial to claim that she saw Hoop give Lindsey “a

little black gun.” Id. at PageID 11302. While defense counsel called attention to this

inconsistency during cross-examination, id. at PageID 11332, they were deprived of

the impeaching evidence explaining why Kerr would change her statements to now

fit the prosecution’s theory of the case at trial—namely, her grant of immunity.

Kerr was also the only witness placing Lindsey in the parking lot standing

near the victim’s body. Id. at PageID 11303. She testified that after Lindsey left the

bar, she and Joy Hoop remained inside. Kerr testified that she heard a banging on

the door, unlocked and opened it, and then saw “Whitey laying on the ground and

Carl standing by the door.” Id. at PageID 11305-06. Kerr then confirmed that she

saw Whitey laying on the ground, covered in blood. Id. at PageID 11306. Kerr then

went home.

Kerr’s involvement didn’t stop there. After leaving the bar, Lindsey drove

across the street to Kerr’s residence, where Kerr “voluntarily” allowed Lindsey into

her home to shower and change into clean clothes. Trial Tr. Vol. III at 15-16, 63,

R. 153-1, PageID 9759. A short time later, police arrested Lindsey at Kerr’s home,

where they found a gun, bullets, and the victim’s wallet. Throughout the

investigation, police viewed Kerr as a key witness and interviewed her multiple

times, resulting in numerous inconsistent statements as her story changed. Trial

Tr. Vol. VI at 5-6, R. 153-3, PageID 10441. In addition to taking statements, police

tested Kerr for gunshot residue and took her fingerprints. Trial Tr. Vol. IX at 552-

53, R. 153-4, PageID 11660-61. The State then relied on Kerr’s testimony before the

Grand Jury. While Joy Hoop and Lindsey remained primary suspects, Kerr, and her

version of events, became a key focus for the investigation as well.

Kerr then played a central role at trial. The search of Kerr’s home was the

subject of a pre-trial motion to suppress. Trial Tr. Vol. III at 4-6, R. 153-1, PageID

9700-702. The jurors participated in a viewing of Kerr’s residence, including

entering her home. Trial Tr. Vol. VIII at 2-4, R. 153-4, PageID 11107-09. The State

relied directly on Kerr’s testimony that she did not bring the handgun, ammunition,

or wallet into her own home, to infer that Lindsey was solely responsible for the

robbery and placement of these items. Id. at 209, PageID 11314. Notably, the State

presented Kerr as their only witness linking Lindsey to the second, fatal shot. Id. at

31, PageID 11136.

The prosecution then emphasized during closing argument that it was Kerr –

and Kerr alone – who “says I saw her [Hoop] hand him [Lindsey] a gun,” which Kerr

claimed was small and black. Id. at 11926. Kerr was the only witness to claim that

“she saw the gun” (id. at 11928), and the prosecution argued that “[t]here is no

evidence that refutes what Kathy says.” Id. at 11989.

In sum, Kerr was the only witness present before, during, and after the

offense. As the prosecutor explained at the co-defendant’s subsequent trial: “Who

knows the most but Kathy Kerr?” Hoop Trial Tr., PC Ex. 33, ROW App., R. 152-9,

PageID 7931. Kerr, and her credib`1`/ility, thus played a crucial role in the

proceedings.

The defense’s strategy centered on undermining Kerr’s credibility. Starting in

opening statements, the defense brought Kerr’s inconsistent statements to the

jury’s attention. Trial Tr. Vol. VIII at 58-59, R. 153-4, PageID 11163-64 (“The

evidence will show you that each one of [Kerr’s statements] tells a different

story…The evidence will show you that she’s been coached….”). Defense counsel

also sought to highlight these inconsistent statements during cross examination. Id.

at 225-48, PageID 11330-53. To rehabilitate Kerr, the State allowed her to testify

that she changed her story because she feared “Carl and Joy.” Id. at 218-19, PageID

11323-24; id. at 244-45, PageID 11349-50.

Even worse, the prosecutor then actively aided concealment of the grant of

immunity on redirect examination by withdrawing a question that would have

disclosed the grant. The prosecutor asked Kerr, “And what made you finally tell the

truth--” before quickly adding “I’ll withdraw that.” Trial Tr. Vol. VIII at 244, R. 1534, PageID 11349. Due to the suppression of Kerr’s immunity deal, the jury never

learned that Kerr received a substantial incentive to testify for the State and to

change her story, yet again.

In addition to attacking her credibility, the defense alluded to Kerr’s

involvement in the offense. The defense presented Kerr as a potential suspect,

arguing a “possibility that the subjects Joy Hoop and Kathy Kerr could have

discharged the firearm….” Trial Tr. Vol. VIII at 45, R. 153-4, PageID 11150. The

defense argued that the gunshot residue on Lindsey’s hands “may be from handling

the gun in Kathy Kerr’s bathroom after the crime had been committed.” Id. at 47,

PageID 11152. On cross-examination, the defense emphasized that police failed to

collect Kerr’s clothes as evidence or obtain a sample of the blood on her before she

wiped it off. Id. at 246-48, PageID 11351-53.

Lindsey argued first in state court, then in his federal habeas petition, that

the suppression of Kerr’s immunity deal violated Brady v. Maryland, 373 U.S. 83

(1963). When considering the merits of Lindsey’s Brady claim on de novo review,

the district court correctly found that “there was an agreement regarding

testimonial immunity, the agreement was likely not disclosed to the defense, and

that agreement could have been used for impeachment purposes.” Opinion and

Order at 20, R. 159, PageID 12325. Indeed, Lindsey’s trial counsel attested that he

was not aware the prosecutor had granted Kerr immunity and was not provided a

copy of the prosecutor’s letter granting Kerr immunity. Wallace Dep., R. 66-1,

PageID 772-73; see also ROW App., R. 152-8, PageID 7529.

The district court, and the Sixth Circuit panel, however, failed to grant a

COA on this claim, finding the suppression of evidence immaterial. The Sixth

Circuit held that “it is not reasonably probable that the result of either phase of

trial would have been different even had the revelation of the promise of testimonial

immunity led to Kerr’s successful impeachment” on the basis that the “evidence of

Lindsey’s guilt was overwhelming.” Amended Order, Doc. No. 21-1 at 3.

II.

Lindsey sought to amend with newly discovered evidence of brain

damage and prior counsel’s failure to timely communicate a plea

offer.

After discovering new evidence during habeas proceedings, Lindsey filed a

post-conviction petition seeking to exhaust claims in state court. Just three months

after filing exhibits supporting the petition in state court, Lindsey moved to amend

his federal habeas petition. In between these two events, however, the district court

denied Lindsey’s habeas petition.

Accordingly, Lindsey timely filed a motion under Fed. R. Civ. P. 59(e),

followed by a motion to amend his habeas petition with claims based on newly

discovered evidence. Motion, R. 163, PageID 12469.

Lindsey sought to amend to add a claim that trial counsel performed

deficiently, and to his prejudice, when they failed to investigate and present

evidence that he suffers brain damage due to having Fetal Alcohol Spectrum

Disorder (FASD). He also argued that imposing a death sentence on a person with

FASD is unconstitutional under the Eighth and Fourteenth Amendments. Lindsey

further sought to allege that his counsel rendered ineffective assistance for their

failure to timely communicate a plea offer from the prosecutor’s office. Lindsey also

presented claims that his death sentence is unconstitutional due to the prosecutor’s

repeated withdrawal of offers of a life sentence as well as his trial counsel’s failure

to object to imposition of the death penalty after the prosecutor agreed that a life

sentence was appropriate.

Under Fed. R. Civ. P. 15(a)(2), when a petitioner seeks leave to amend, “The

court should freely give leave when justice so requires.” Rather than applying Rule

15’s liberal standard, the district court denied leave to amend on the basis that

Lindsey failed to meet the higher burden to reopen the judgment under Rule 59.

Opinion, R. 172, PageID 12678. The Sixth Circuit denied a COA, concluding that a

higher standard for amendment applies to a post-judgment motion to amend. COA

Order, Doc. No. 21-1 at 9, citing Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv.,

616 F.3d 612, 615-16 (6th Cir. 2010).

REASONS FOR GRANTING THE WRIT

The Sixth Circuit improperly applied a more stringent materiality

standard when denying a COA on Lindsey’s Brady claim.

The Sixth Circuit has a pattern of misapplying the Brady materiality

standard in capital cases. See Chinn v. Shoop, No. 22-5058, 598 U.S. ___ (2022)

(Jackson, J., dissenting from denial of certiorari). Here, the Sixth Circuit has

misapplied federal precedent once again; therefore, it is appropriate and necessary

for this Court to intervene.

The Sixth Circuit’s denial of Lindsey’s Brady claim because the “evidence of

Lindsey’s guilt was overwhelming,” Amended Order, Doc. No. 21-1 at 3, conflicts

with this Court’s precedents. As Justices Jackson and Sotomayor have explained,

there is a “relatively low burden that is ‘materiality for purposes of Brady….”

Chinn, 598 U.S. at ___ (slip op. at 1) (Jackson, J., dissenting). “To prove prejudice

under…Brady…a defendant must show a ‘reasonable probability’ of a different

outcome,” which “is a qualitatively lesser standard” than a standard requiring a

defendant to show that it is “more likely than not” that suppressed evidence would

have changed the outcome. Id., 598 U.S. at ___ (slip op. at 1, 2) (Jackson, J.,

dissenting), citing Kyles v. Whitley, 514 U.S. 419 (1995). The Sixth Circuit failed

once again to properly apply this standard.

Contrary to the Sixth Circuit’s reasoning, evidence of Lindsey’s guilt does not

negate the value of Kerr as a witness nor the materiality of her suppressed

immunity deal. As the Supreme Court explained in Kyles, “a showing of materiality

does not require demonstration by a preponderance that disclosure of the

suppressed evidence would have resulted ultimately in the defendant’s acquittal

(whether based on the presence of reasonable doubt or acceptance of an explanation

for the crime that does not inculpate the defendant).” 514 U.S. at 434. See also

Jamison v. Collins, 291 F.3d 380, 385, 389-91 (6th Cir. 2002) (holding that even

without conclusive evidence of innocence, suppressed evidence “directly applicable

to the most damaging testimony” is material).

Members of this Court recently recognized that “[t]he requirement that the

withheld evidence must speak to or rule out the defendant’s participation in order

for it to be favorable is wholly foreign to our case law.” Brown v. Louisiana, No. 2277, 598 U.S. ___ (2023) (Jackson, J., dissenting from denial of certiorari) (slip op. at

3). To show evidence is favorable, the evidence need only have “some value.” And

evidence has value if it “tends to… impeach a witness, ibid., or might reduce the

potential penalty.” Id. (slip op. at 2).

Materiality is based on the likelihood that the trial outcome would have been

different if the suppressed evidence had been properly disclosed. Kyles, 514 U.S. at

433. In Kyles, this Court explained that “[t]he question is not whether the defendant

would more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” Id. at 434; see also United States v. Bagley, 473 U.S.

667, 678 (1985). A “reasonable probability” of a different result is when the

suppression of evidence “undermines confidence in the outcome of the trial.” Kyles,

514 U.S. at 434, citing Bagley, 473 U.S. at 678. This materiality threshold is

lowered even further when viewed through the COA standard, where the courts

merely consider whether jurists of reason could disagree about whether the

materiality standard was met. See Buck, 580 U.S. at 115; see also § II, below.

Pursuant to Supreme Court Rule 10(c), certiorari is warranted because

rather than applying this Court’s precedent, the Sixth Circuit improperly applied a

heightened Brady materiality standard when denying Lindsey a COA on his claim.

Given Kerr’s role in this case, and the importance of her credibility, reasonable

jurists could debate whether Lindsey’s conviction and death sentence are “worthy of

confidence” in light of the suppression of Kerr’s immunity deal.

Kerr’s participation in the crime created an incentive for her to shift the

blame elsewhere. See Fulcher v. Motley, 444 F.3d 791, 809 (6th Cir. 2006); Stallings

v. Bobby, 464 F.3d 576, 583 (6th Cir. 2006). Indeed, her immunity deal gave her

“powerful incentive to testify favorably” for the prosecution in order to secure

Lindsey’s conviction and death sentence. Hayes v. Brown, 399 F.3d 972, 987 (9th

Cir. 2005); see also Giglio v. United States, 405 U.S. 150, 154-55 (1972). The State

relied on Kerr as the key witness to connect the dots for its theory of the case. As

the defense argued, the prosecution’s entire case was a “house of cards,” with “the

foundation of that house of cards being the credibility of Kathy Kerr,” but “Kathy

Kerr is a liar.” Trial Tr., R. 153-5, PageID at 11957.

The withheld impeachment evidence creates a “reasonable probability” of a

different result. Kyles, 514 U.S. at 434. It would have provided Lindsey irrefutable

proof as to why Kerr was lying about him, and why she couldn’t be believed. The

withheld evidence would have been the last breath to blow down the “house of

cards” of Kerr’s credibility, and with it, the case against Lindsey.

First, reasonable jurists could debate whether there is a reasonable

probability of a different outcome at the guilt phase in this case. If a juror discounts

Kerr’s testimony based on her lack of credibility, there is no evidence linking

Lindsey to the second, fatal shot. Only Kerr testified that Lindsey was seen

standing next to the victim’s body on the ground. But as argued by the State at Joy

Hoop’s trial, Joy could have been the one to fire the second, fatal shot. ROW App.

Vol. 9, R. 152-9, PageID 7914-15. Indeed, six months later at Joy Hoop’s trial, the

State presented a witness who testified that Joy Hoop said Lindsey “didn’t finish

the job and [Joy] had to go out and shoot [Whitey] a second time in the head.” State

v. Lindsey, No. CA2003-07-010, 2004 Ohio 4407 (Ohio Ct. App. Aug. 23, 2004).

Given that the jury then convicted Joy Hoop of conspiracy to commit aggravated

murder, there is a reasonable probability a factfinder would have reached a

different outcome at the guilt phase in Lindsey’s trial if Kerr’s statements

positioning Lindsey as the principal offender were discredited.

Second, reasonable jurists could also debate whether the suppressed evidence

has a reasonable probability of changing the outcome at the penalty phase. In Ohio,

a single juror can prevent the death sentence. And this was already a close case for

death. See, e.g., Michael Hess Aff. RE: Juror Beth Aubry Interview, PC Ex. 23, ROW

App., R. 152-8, PageID 7576. If the jury had known about the immunity deal, and

thus assigned less weight to Kerr’s testimony, a single juror could have doubted

whether Lindsey accepted a weapon from Joy Hoop in agreement and whether

Lindsey was really seen standing next to the victim’s body. Without Kerr’s

statements directly incriminating Lindsey, the nature and circumstances of the

offense become more mitigating, and there is a reasonable probability of a different

sentencing outcome. Here, there is a “reasonable likelihood” the evidence could have

“affected the judgment of the jury.” Wearry v. Cain, 577 U.S. 385, 392 (2016) (per

curiam) (internal quotation marks omitted).

In concluding that there was no Brady violation, the Sixth Circuit relied on

the Ohio Supreme Court’s holding that “Kerr’s veracity was a question for the trier

of fact.” COA Order, Doc. No. 18-1 at 5, quoting State v. Lindsey, 721 N.E.2d 995,

1001 (Ohio 2000). This does not mean, as the panel concludes, that Kerr’s

testimonial immunity did not need to be disclosed. Rather, the Ohio Supreme

Court’s statement leads to the exact opposite conclusion: because Kerr’s veracity

had to be decided by the trier of fact, the evidence of her testimonial immunity

needed to be disclosed for it to make an informed decision.

Moreover, the state trial judge in this case had already concluded that Kerr’s

prior inconsistent statements were material under Brady. Entry as to Def.’s Mot. for

Disclosure of Favorable Evidence, ROW App., R. 152-4, PageID 4996. In ordering

that Kerr’s statements be made available to the defense, the trial judge explicitly

found Kerr to be a “significant prosecution fact witness[]” and that her statements

were “substantial” in nature. Id.; Trial Tr. Vol. VI at 6, R. 153-3, PageID 10442. The

trial judge explained that Kerr’s inconsistent statements were “material for either

guilt or innocence of the defendant in this case and as evidence favorable to the

defendant.” Trial Tr. Vol. VI at 6, R. 153-3, PageID 10442. In a written order, the

trial judge reiterated that Kerr’s statements “constitute evidence favorable” under

Brady “as evidence which is material to either guilt or punishment.” Entry as to

Def.’s Mot. for Disclosure of Favorable Evidence, ROW App., R. 152-4, PageID 499697. Given the centrality of Kerr’s testimony and her own involvement in the offense,

Kerr’s immunity deal, like her inconsistent statements, was also material.

Kerr’s self-serving statements should have been subject to the utmost

scrutiny – but because of the State’s suppression of evidence, they were not. Had

the jury heard all the suppressed evidence and thus doubted Kerr’s veracity, there

is a reasonable probability that the outcome would have been different at trial and

sentencing. Certainly, reasonable jurists could debate whether the suppression of

Kerr’s immunity deal “undermines confidence in the outcome of the trial.” Kyles,

514 U.S. at 434.

Notably, the issue of whether withheld evidence impeaching the prosecution’s

key witness was material under Brady is currently pending before this Court in

Glossip v. Oklahoma, U.S. No. 22-6500 (seeking relief from Oklahoma courts

requiring “a defendant to demonstrate by clear and convincing evidence that no

reasonable fact finder would have returned a guilty verdict to obtain relief for a

violation of Brady”), Glossip v. Oklahoma, U.S. No. 22-7466 (alleging that

petitioner’s Brady claim—regarding suppressed evidence of a key witness’ bipolar

disorder—creates a conflict between Oklahoma courts and the Tenth Circuit Court

of Appeals), and Johnson v. Alabama, U.S. No. 22-7337 (alleging that Alabama

courts misapplied Brady suppression standards in a capital case regarding evidence

that the key witness was hoping for a reward). The lower courts’ failures to properly

apply Brady in Lindsey’s case and these other capital cases, where the prosecution

withholds evidence impeaching a key witness, confirms that the issue presented

here is a recurring problem on which this Court should grant certiorari. Lindsey

requests the Court grant his petition, but in addition, should this Court grant

certiorari in Glossip or Johnson, Lindsey requests that the Court hold Lindsey’s

petition pending any decision in either of those cases.

II.

The Sixth Circuit analyzed Lindsey’s Brady claim in a manner

conflicting with this Court’s COA standard.

The Sixth Circuit’s imposition of an incorrect COA standard improperly cut

short the federal appellate review process in this capital case. Lindsey easily meets

the COA standard––“a substantial showing of the denial of a constitutional right”––

for his claim under Brady. 28 U.S.C. § 2253(c)(2).

Pursuant to Supreme Court Rule 10(c), certiorari is warranted because the

Sixth Circuit “has decided an important federal question in a way that conflicts

with relevant decisions of this Court,” including Buck v. Davis, 580 U.S. 100 (2017),

Miller-El v. Cockrell, 537 U.S. 322 (2003), and Slack v. McDaniel, 529 U.S. 473

(2000). “At the COA stage, the only question is whether the applicant has shown

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.” Buck, 580 U.S. at 115

(internal quotation marks omitted). Indeed, a petitioner is not even required to

prove “that some jurists would grant the petition for habeas corpus.” Miller-El, 537

U.S. at 338. Further, in cases where the death penalty is at issue, courts have

recognized that any doubts regarding the propriety of a COA must be resolved in

the petitioner’s favor. See, e.g., Skinner v. Quarterman, 528 F.3d 336, 341 (5th Cir.

2008).

At issue is merely whether the claim deserves encouragement to proceed

further, not the ultimate merits. The Sixth Circuit failed to apply this standard

when initially denying a COA on Lindsey’s Brady claim by holding: “Claim 2,

therefore, is without merit.” COA Order, Doc. No. 18-1 at 5. Lindsey filed a petition

for rehearing, requesting that the panel apply the proper COA standard. Petition,

Doc. No. 20-1. In an amended order, the Sixth Circuit stated the proper COA

standard, but failed to adjust the previous analysis, on the merits, which led to their

conclusion. Amended Order, Doc. No. 21-1. That the Sixth Circuit believes the claim

will fail on the merits is not sufficient to deny a COA because “a claim can be

debatable even though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that petitioner will not

prevail.” Miller-El, 537 U.S. at 338.

Because the Sixth Circuit conducted a merits inquiry, rather than a COA

inquiry, in a manner that “conflicts with relevant decisions of this Court,” certiorari

is warranted under Supreme Court Rule 10(c).

III.

Review is warranted where the Sixth Circuit’s application of a

higher standard to post-judgment motions to amend conflicts with

this Court’s decision in Banister v. Davis and is the subject of a

circuit split.

The Sixth Circuit’s decision conflicts with this Court’s holding

in Banister.

Banister v. Davis makes clear that when a petitioner “timely submits a Rule

59(e) motion, there is no longer a final judgment to appeal from.” 590 U.S. ___, ___

(2020) (slip. op. at 3). Once a Rule 59 motion is filed, a case is in a pre-judgment

posture, such that Rule 15 alone should apply to a motion to amend.

The Sixth Circuit concluded that Banister does not apply because it “did not

concern a Rule 15 motion” and that “[a] Rule 15 motion is not an appeal, not even

when it is a postjudgment Rule 15 motion.” COA Order, Doc. No. 21-1 at 9-10.

The question is not, as the Sixth Circuit concluded, whether Banister

specifically addresses Rule 15 motions. Rather, the issue is whether a final

judgment exists after a petitioner “timely submits a Rule 59(e) motion.” Banister,

(slip. op. at 3). Certiorari should be granted, because the Sixth Circuit has decided

an important federal question in a way that conflicts with this Court’s holding in

Banister. See SUP. CT. R. 10(c).

There is a circuit split over whether to apply a higher standard

to post-judgment motions to amend.

Review on a writ of certiorari should also be granted because the appropriate

standard for post-judgment amendments is the subject of a circuit split. See SUP.

CT. R. 10(a).

On the one hand, the Third, Fourth, Fifth, and Eleventh Circuits have

applied Rule 15’s liberal amendment standard to motions to amend filed after

judgment. See, e.g., Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011)

(“[W]e believe that the appropriate manner to dispose of this issue is to consider the

[Rule 59(e) and Rule 15(a)] motions together and determine what outcome is

permitted by consideration of the Rule 15(a) factors.”); Laber v. Harvey, 438 F.3d

404, 427 (4th Cir. 2006) (en banc) (“a post-judgment motion to amend is evaluated

under the same legal standard as a similar motion filed before judgment was

entered—for prejudice, bad faith, or futility”); Sheffler v. Americold Realty Trust,

No. 22-11789, 2023 WL 3918491, at *2 (11th Cir. June 9, 2023) (agreeing with

plaintiffs that “our earliest binding precedent provides that the ‘same’ liberal

amendment standard also applies to a Rule 59(e) motion seeking leave to file an

amended complaint”); DeGruy v. Wade, 586 F. App’x 652, 655 (5th Cir. 2014)

(“Where a district court has entered a judgment on the pleadings and the plaintiff

moves under Rule 59(e) to vacate the judgment and amend the complaint, the court

should analyze the motion under the Rule 15(a) standard.”); but see U.S. ex rel.

Atkins v. McInteer, 470 F.3d 1350, 1361 n.22 (11th Cir. 2006) (“Fed.R.Civ.P.

15(a) has no application once the district court has dismissed the complaint and

entered final judgment for the defendant…. Post-judgment, the plaintiff may seek

leave to amend if he is granted relief under Rule 59(e) or Rule 60(b)(6).”); Ahmed v.

Dragovich, 297 F.3d 201, 207-08 (3d Cir. 2002) (holding that “the liberality of [Rule

15] is no longer applicable once judgment has been entered. At that stage, it is

Rules 59 and 60 that govern the opening of final judgments.”).

On the other hand, the First, Second, 1 Sixth, Seventh, Eighth, Ninth, Tenth,

and D.C. Circuits require a petitioner to obtain relief under Rule 59 or 60 first

before considering the motion to amend under Rule 15. See, e.g., City of Miami Fire

Fighters’ & Police Officers’ Ret. Tr. v. CVS Health Corp., 46 F.4th 22 (1st Cir. 2022);

Leisure Caviar, LLC, 616 F.3d at 616; O’Brien v. Vill. of Lincolnshire, 955 F.3d 616,

629 (7th Cir. 2020); In re SuperValu, Inc., 925 F.3d 955, 961 (8th Cir. 2019);

Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996); The Tool Box, Inc. v. Ogden

City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005); Firestone v. Firestone, 76 F.3d

1205, 1208 (D.C. Cir. 1996).

Because of the circuit split, this Court should grant review on this issue of

exceptional importance, especially in a capital case. Moreover, the fact that courts

have reached divergent conclusions underscores that the proper standard is

debatable among reasonable jurists and therefore worthy of a COA.

1 The Second Circuit is less clear about whether a post-judgment motion must satisfy

not only Rule 15 standards, but also standards for reconsidering or reopening a

judgment. See Williams v. Citigroup, Inc., 659 F.3d 208, 213 (2d Cir. 2011) (rejecting

“the proposition that the liberal spirit of Rule 15 necessarily dissolves as soon as final

judgment is entered” but holding that “Rule 15’s liberality must be tempered by

considerations of finality”) (internal citation omitted).

Alternatively, reasonable jurists could debate whether Lindsey could also

meet the heavier burden under Rule 59, because the claims he seeks to amend are

based on newly discovered evidence that was not previously available at the time of

his trial or when he filed his original petition. Lindsey could not have discovered the

new evidence in his case earlier due to ineffective assistance of counsel. Special

consideration should be given to the fact that this is a capital case, particularly

where Lindsey’s amended claims directly call into question whether his death

sentence can be constitutionally imposed. See Williams v. Stirling, 914 F.3d 302,

318 (4th Cir. 2019) (finding a reasonable probability that the jury would have voted

for life had they been presented evidence about FASD). Lindsey should not be

penalized simply because he sought to exhaust his claims in state court in

accordance with § 2254(b)(1)(A) before moving to amend in federal court. At an

absolute minimum, this issue deserves “encouragement to proceed further.” MillerEl, 537 U.S. at 327.

The Sixth Circuit’s decision creates a circuit split by rejecting

an amended petition solely based on delay.

When denying a COA on this issue, the Sixth Circuit concluded that

reasonable jurists would not debate that “Lindsey failed to show that he could not

have raised the claims before the district court entered final judgment.” COA Order,

Doc. No. 21-1 at 7-8. The district court, and then the Sixth Circuit, both narrowly

focused on delay in filing the motion to amend. Id. at 10-12. In doing so, the Sixth

Circuit did not mention any prejudice to the Warden, nor address any other factors

under Rule 15, including bad faith or dilatory motive.

The Sixth Circuit’s decision conflicts with other federal court decisions

because “delay by itself is normally an insufficient reason to deny a motion for leave

to amend. Delay must be coupled with some other reason. Typically, that reason…is

prejudice to the non-moving party.” Dubicz v. Commonwealth Edison Co., 377 F.3d

787, 793 (7th Cir. 2004) (citation omitted); see also Geness v. Cox, 902 F.3d 344, 364

(3d Cir. 2018); Moore-El v. Luebbers, 446 F.3d 890, 902 (8th Cir. 2006); Mayeaux v.

Louisiana Health Service and Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004) (“[W]e

know that delay alone is an insufficient basis for denial of leave to amend: The

delay must be undue, i.e., it must prejudice the nonmoving party or impose

unwarranted burdens on the court.”) (emphasis original); Bowles v. Reade, 198 F.3d

752, 758 (9th Cir. 1999) (noting that they “have previously reversed the denial of a

motion for leave to amend where the district court did not provide a

contemporaneous specific finding of prejudice to the opposing party, bad faith by the

moving party, or futility of the amendment”). Even the Sixth Circuit has held in

other cases that “[d]elay that is neither intended to harass nor causes any

ascertainable prejudice is not a permissible reason, in and of itself to disallow an

amendment of a pleading.” Moore v. City of Paducah, 790 F.2d 557, 561 (6th Cir.

1986).

Because the Sixth Circuit’s decision denying a COA on the motion-to-amend

issue is “in conflict with the decision of another United States court of appeals on

the same important matter,” review should be granted. See SUP. CT. R. 10(a).

CONCLUSI O

For the foregoing reason s, Lindsey r espectfully r eque ts that this Court gran t

t he petition for writ of cer tiorari. The Co urt shou ld conclude th at Lindsey is entitled

to a COA and rem and for furt her proceedings. See, e.g ., Buch, 580 U .S. at 127-28.

Respectfully submitted,

De b orah L. Williams

Federal Public Defender

by:

J uli e . Robeds (MA 688233)

(S upreme Court Bar o. 318897)

*Counsel of R ecord

Jord a n S . Berma n (OH 00930 75)

(S uprem e Court B ar No. 285543)

Assistan t Federal Public Defenders

Office of t he Feder al Public Defender

for th e Southern District of Ohio

Capital Habeas U nit

10 W. Broad Stree t, Suite 1020

Columbus, Ohio 43215

(6 14) 469-4141

(6 14) 469-2999 (Fax)

J ulie_Rober ts@fd. or g

Jor da n_Berman@fd. or g

Counsel fo r Petitioner Carl Lindsey

July 12, 2023

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.