Petition for Writ of Certiorari — Danny Hill, Petitioner v. Tim Shoop, Warden

Supreme Court briefNov 20, 2023

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Case No. __________

In The Supreme Court Of The United States

DANNY LEE HILL, Petitioner,

vs.

TIM SHOOP, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the

Sixth Circuit

Petition For Writ Of Certiorari

Stephen C. Newman (Ohio Bar 51928)

Federal Public Defender

Sharon A. Hicks (Ohio Bar 76178)

Assistant Federal Public Defender

Counsel of Record

Office of the Federal Public Defender

Capital Habeas Unit

1660 West Second Street, Suite 750

Cleveland, Ohio 44113

(216) 522-4856; (216) 522-1951 (f)

sharon_hicks@fd.org

Counsel for Danny Lee Hill

Capital Case

Question Presented for Review

Section 2254 habeas corpus proceedings exist for state prisoners to vindicate

their federal constitutional rights. Through the enactment of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Congress sought to conserve judicial

resources, reduce piecemeal litigation, and streamline federal habeas proceedings.

As a result, it imposed heightened gateway requirements that petitioners must meet

before filing a “second or successive” petition. 28 U.S.C. § 2244(b)(2). But those

gatekeeping provisions apply only to petitions that are abusive, or would otherwise

negatively implicate AEDPA’s purposes.

As this Court and the Circuits have

explained, (1) the term “second or successive” petition is a term of art that must be

defined in reference to the historical abuse-of-the-writ doctrine, which bars only those

claims that could have been (but were not) raised in the first petition; and (2)

requiring petitioners to file unripe claims in their initial habeas petition wastes

judicial resources, increases piecemeal litigation, and does not contribute

meaningfully to the finality of state convictions. Therefore, as this Court explained

in Panetti v. Quarterman, petitions raising newly ripened claims are not “second or

successive,” and are not subject to the heightened gatekeeping provisions of

§ 2244(b)(2).

Mr. Hill was convicted and sentenced to death in 1986 for aggravated murder,

based on “scientific” testimony that Mr. Hill (and only Mr. Hill) could have caused a

“bitemark” on the victim’s penis. That testimony constituted the only direct evidence

that Mr. Hill was an active participant in the crime, rather than a passive observer.

Decades after Mr. Hill filed his initial habeas petition challenging that conviction,

the American Board of Forensic Odontology (“ABFO”) invalidated the bitemark

science used to convict Mr. Hill of aggravated murder.

No longer are forensic

odontologists permitted to opine that any particular individual created a particular

bitemark. Not only that, Mr. Hill presented expert testimony that, applying the

current (and correct) scientific standards, the injury to the victim was not even a

human bitemark.

Mr. Hill promptly raised a federal constitutional challenge based on the

invalidation of the bitemark testimony in state court. Following the Ohio state courts’

rejections of this challenge, Mr. Hill filed a habeas petition in the district court. The

district court determined that Mr. Hill’s petition was “second or successive,” and

transferred his case to the Sixth Circuit for authorization pursuant to § 2244(b)(2).

The Sixth Circuit panel agreed with Mr. Hill that his petition was not “second or

successive,” but the full court vacated the panel’s decision and, sitting en banc,

determined that Mr. Hill’s petition was “second or successive.” It returned Mr. Hill’s

case to the panel for a determination pursuant to § 2244(b)(2). In so holding, the

Sixth Circuit strayed from the precedent of this Court and the Circuits. Mr. Hill now

raises the following question for this Court’s review:

Is a habeas petition “second or successive” when the factual predicate

giving rise to the petitioner’s claim occurs long after the petitioner filed

his initial habeas petition?

List of Parties

The caption to this petition contains the only parties to this petition for writ of

certiorari.

iii

Corporate Disclosure

There are no corporate disclosures necessary for this case.

List of Proceedings

1. Trial Court: State v. Hill, No. 85-CR-371 (C.P. Trumbull Cty. Ohio) (February

6, 1986).

2. Direct Appeal:

State v. Hill, Nos. 3720, 3745 (11th Dist. Ct. App. Ohio) (Nov. 27,

1989).

State v. Hill, No. 1990-0177 (Ohio Sup. Ct.) (Aug. 12, 1992).

3. State Post-Conviction Proceedings:

State v. Hill, No. 85-CR-371 (C.P. Trumbull Cty. Ohio) (Nov. 27, 1989).

State v. Hill, No. 94-T-5116 (11th Dist. Ct. App. Ohio) (June 16, 1995).

State v. Hill, No. 1995-1577 (Ohio Sup. Ct.) (Nov. 15, 1995) (declined to

accept jurisdiction).

State v. Hill, Case No. 85-CR-371 (C.P. Trumbull Cty. Ohio) (Feb. 15,

2006) (Atkins litigation).

State v. Hill, No. 2006-T-0039 (11th Dist. Ct. App. Ohio) (July 11,

2008) (Atkins litigation).

State v. Hill, No. 2008-1686 (Ohio Sup. Ct.) (declined to accept

jurisdiction) (Atkins litigation).

State v. Hill, No. 85-CR-371 (C.P. Trumbull Cty. Ohio) (May 1, 2023)

(Atkins litigation).

State v. Hill, No. 2023-T-0039 (11th Dist. Ct. App. Ohio) (pending)

(Atkins litigation).

4. Federal Habeas Proceedings:

Hill v, Anderson, No. 96-CV-795 (N.D. Ohio) (Sept. 29, 1999).

Hill v. Anderson, No. 99–4317 (6th Cir.) (Aug. 13, 2002) (remanding with

instructions to stay proceedings).

Hill v. Anderson, No. 96-CV-795 (N.D. Ohio) (June 25, 2014).

Hill v. Anderson, Nos. 99–4317, 14–3718 (6th Cir.) (Feb. 2, 2018).

Shoop v. Hill, No. 18–56 (U.S.) (Jan. 7, 2019) (per curiam).

Hill v. Anderson, Nos. 99–4317, 14–3718 (6th Cir.) (May 20, 2020).

Hill v. Shoop, Nos. 99–4317, 14–3718 (6th Cir.) (Aug. 20, 2021) (en

banc).

Hill v. Shoop, No. 21-6428 (June 30, 2022) (petition for writ of certiorari

denied).

5. Bitemark State Post-Conviction Proceedings:

State v. Hill, No. 85-CR-371 (C.P. Trumbull Cty. Ohio) (Oct. 3, 2016).

State v. Hill, No. 2016-T-0099 (11th Dist. Ct. App. Ohio) (Dec. 3, 2018).

State v. Hill, No. 2019-0068 (Ohio Sup. Ct.) (June 12, 2019) (declined to

accept jurisdiction).

6. Bitemark Federal Habeas Proceedings:

Hill v. Shoop, No. 4:20-cv-01294 (N.D. Ohio) (Aug. 14, 2020).

In re Hill, No. 20-3863 (6th Cir.) (Aug. 30, 2022).

In re Hill, No. 20-3863 (6th Cir.) (Aug. 25, 2023) (en banc).

Table of Contents

Page No.

Question Presented for Review............................................................................................. i

List of Parties ........................................................................................................................ iii

Corporate Disclosure ............................................................................................................ iv

List of Proceedings ................................................................................................................ iv

Table of Authorities ............................................................................................................ viii

Citations to Opinions Below .......................................................................................... 1

Jurisdictional Statement ............................................................................................... 3

Constitution and Statutory Provisions............................................................................... 4

Statement of the Case ................................................................................................... 5

Reasons for Granting the Petition .....................................................................................10

II.

The Sixth Circuit’s decision conflicts with decisions of this Court and that of

other Circuits on the same important matter. .....................................................10

Decisions of this Court and other Circuits all make clear that a second

petition is not “second of successive” where the factual preicate for the

claim did not exist at the time of the prior petition................................11

The factual predicate for Mr. Hill’s claim did not exist at the time of the

prior petition, and thus his petition is not “second or successive.” ........16

The Sixth Circuit’s contrary holding conflicts with the precedent from

this Court and other Circuits.......................................................................19

This petition presents an important issue, and Mr. Hill’s case presents an ideal

vehicle for settling it. ................................................................................................23

Conclusion ..............................................................................................................................25

Appendix:

Volume I ......................................................................................................................... 1-431

A-1 Transfer Order to the Sixth Circuit Court of Appeals .............................................. 1

A-2 Sixth Circuit Panel Order ............................................................................................. 3

A-3 Order Granting En Banc Hearing ..............................................................................10

A-4 En Banc Opinion ............................................................................................................12

A-5 Trial Transcript ..................................................................................................... 43

A-6 2012 ABFO Guidelines ...............................................................................................146

A-7 NAS Report Excerpts ..................................................................................................153

A-8 ABFO 2012 & 2013 Reference Manuals Excerpts ..................................................164

A-9 ABFO 2016 Reference Manual Excerpts .................................................................169

A-10 Motion for Leave to File New Trial .................................................................. 171

Volume II .................................................................................................................... 432-916

A-10 Motion for Leave to File New Trial ........................................................................432

A-11 New Trial Motion ......................................................................................................648

Volume III ................................................................................................................ 917-1260

A-11 New Trial Motion ......................................................................................................917

A-12 Affidaivt of Dr. Wright .................................................................................... 1066

A-13 Dr. Wright 2020 Affidavit ......................................................................................1072

A-14 Dr. Davis Affidavit ..................................................................................................1082

A-15 11th District Court Affirmed .................................................................................1087

A-16 Ohio Supreme Court Declined Jurisdiction ........................................................1113

A-17 Habeas Petition ............................................................................................... 1114

A-18 Transfer Order .........................................................................................................1165

A-19 Appeal Order Dismissing Motion .........................................................................1166

A-20 Appeal Order Granting En Banc ..........................................................................1173

A-21 Sixth Circuit Rules ..................................................................................................1175

A-22 Dr. Hua Affidavit ............................................................................................ 1177

A-23 State v. Hill ..............................................................................................................1184

A-24 Freeman/Petty Construct Validity Study ............................................................1211

A-25 Order Denying Relief for New Trial Motion .......................................................1226

vii

Table of Authorities

Cases

Page No.

Banister v. Davis, 140 S. Ct. 1698 (2020) ....................................................... 12, 17, 24

Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005) ...................................................... 12

Brown v. Atchley, 76 F.4th 862 (9th Cir. 2023) .......................................................... 16

Castro v. United States, 540 U.S. 375 (2003)................................................................ 3

Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001) .......................................................... 12

Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005) ............................................... 21

Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018)....................................... 7, 8

Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) ................................................... 20

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 13

Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009) ..................................................... 15

Hereford v. McCaughtry, 101 F. Supp. 2d 742 (E.D. Wis. 2000)................................ 21

Howard v. State, 300 So. 3d 1011 (Miss. 2020) .................................................. 7, 8, 18

In re Boler-Bey, No. 22-3542, 2022 U.S. App. LEXIS 32875 (6th Cir. Nov. 29,

2022) .................................................................................................................. 14

In re Cox, No. 22-3729, 2023 U.S. App. LEXIS 1774 (6th Cir. Jan. 24, 2023) .......... 15

In re Curtis Jones, 652 F.3d 603 (6th Cir. 2010) ............................................ 14, 15, 21

In re Harris, No. 17-2063, 2018 U.S. App. LEXIS 13875 (6th Cir. May 24, 2018) ... 14

In re Hill, 62 F.4th 1039 (6th Cir. 2023) ....................................................................... 1

In re Hill, No. 20-3863, 2022 WL 19222585 (6th Cir. Aug. 30, 2022).................. 1, 2, 3

In re Jones, 54 F.4th 947 (6th Cir. 2022) .............................................................. 15, 18

viii

In re Tibbetts, 869 F.3d 403 (6th Cir. 2017).......................................................... 21, 22

In re Weathersby, 717 F.3d 1108 (10th Cir. 2013) ...................................................... 16

In re Wogenstahl, 902 F.3d 621 (6th Cir. 2018) .......................................................... 14

Jackson v. City of Cleveland, 925 F.3d 793 (6th Cir. 2019) ....................................... 22

Jones v. Burnette, 2008 WL 2516483 (S.D. Ga. June 20, 2008) ................................. 21

Lesko v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211 (3d Cir. 2023) .................................... 18

Long v. Hooks, 972 F.3d 442 (4th Cir. 2020) .............................................................. 14

Magwood v. Patterson, 561 U.S. 320 (2010) ......................................................... 12, 19

McAleese v. Brennan, 483 F.3d 206 (3d Cir. 2007) ..................................................... 20

McCleskey v. Zant, 499 U.S. 467 (1991) .................................................... 12, 14, 16, 23

McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63 (1st Cir. 2003) ............................ 21

McQuiggin v. Perkins, 569 U.S. 383 (2013) ................................................................ 21

Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003) .................................................. 12

Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190

(1983) ................................................................................................................. 22

Panetti v. Quarterman, 551 U.S. 930 (2007)..................................... i, 13, 17, 18 23, 24

Restucci v. Bender, 599 F.3d 8 (1st Cir. 2010) ............................................................ 16

Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) ................................................. 17, 20, 22

Scott v. United States, 890 F.3d 1239 (11th Cir. 2018) ........................................ 17, 24

Sims v. Subia, 2015 WL 3750450 (C.D. Cal. June 14, 2015) ..................................... 21

Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003)..................................................... 16

Slack v. McDaniel, 529 U.S. 473 (2000) ...................................................................... 12

Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990) ............................................ 6

State v. Denton, No. 04-R-330, 2020 WL 7232303 (Ga. Super. Ct. Feb. 07, 2020) ...... 8

Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)...................................... 16, 19

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) ............................................. 13, 20

United States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011) ........................................ 19

United States v. Hairston, 754 F.3d 258 (4th Cir. 2014) ............................................ 16

United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009) ............................................... 14

United States v. Obeid, 707 F.3d 898 (7th Cir. 2013) ........................................... 16, 19

United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000) ................................ 16

Ybanez v. Johnson, 204 F.3d 645 (5th Cir. 2000) ....................................................... 21

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 3

28 U.S.C.§ 2244 ............................................................................................................ 18

28 U.S.C.§ 2244(b) ......................................................................... 11, 13, 14, 18, 23, 25

28 U.S.C.§ 2244(b)(2) .............................................................. i, ii, 1, 3, 4, 10, 11, 19, 23

28 U.S.C. § 2244(b)(2)(B)(i) ......................................................................................... 19

28 U.S.C. § 2244(b)(3) .......................................................................................... 1, 3, 10

28 U.S.C. § 2244(d) ...................................................................................................... 17

Other Authorities

John H. Blume, et.al, Killing the Oblivious: An Empirical Study of Competency to Be

Executed Litigation, 82 UMKC L. Rev. 335 (2014) ................................................. 24

Case No. __________

In The Supreme Court Of The United States

DANNY LEE HILL, Petitioner,

vs.

TIM SHOOP, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for

the Sixth Circuit

Danny Lee Hill respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Sixth Circuit.

Citations to Opinions Below

The District Court of the Northern District of Ohio transferred Mr. Hill’s case

to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3). Hill v.

Shoop, No. 4:20-cv-01294 (N.D. Ohio Aug. 14, 2020). That order is found in the

Appendix at A-1.

The Sixth Circuit Court of Appeals found that the requirements of 28 U.S.C.

§ 2244(b)(2) did not apply to Mr. Hill’s Petition and transferred Mr. Hill’s Petition to

the district court for further proceedings. In re Hill, No. 20-3863, 2022 WL 19222585

(6th Cir. Aug. 30, 2022). That order is found in the Appendix at A-2. The Sixth

Circuit Court of Appeals vacated the panel’s order, In re Hill, 62 F.4th 1039 (6th Cir.

2023), and that order is found in the Appendix at A-3.

The Sixth Circuit Court of Appeals, sitting en banc, issued the opinion under

review in this petition in In re Hill, No. 20-3863, 2023 WL 5493261 (6th Cir. Aug. 25,

2023) (en banc), and that opinion is found in the Appendix at A-4.

Jurisdictional Statement

The United States Court of Appeals for the Sixth Circuit, sitting en banc, held

that Mr. Hill’s Petition must meet the provisions of 28 U.S.C. § 2244(b)(2) and

returned the case to the panel for adjudication pursuant to 28 U.S.C. § 2244(b)(3). In

re Hill, No. 20-3863, 2023 WL 5493261 (6th Cir. Aug. 25, 2023) (en banc). This Court

has jurisdiction to review the Court of Appeals judgment issued below under

28 U.S.C. § 1254(1). See Castro v. United States, 540 U.S. 375, 380–81 (2003).

Constitution and Statutory Provisions

28 U.S.C. § 2244(b)(2) states, in pertinent part:

A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless . . . the factual predicate for the

claim could not have been discovered previously through the exercise

of due diligence; and the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

The United States Constitution, Fourteenth Amendment, Section 1 states, in

pertinent part:

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.

STATEMENT OF THE CASE

Mr. Hill was convicted and sentenced to death in 1986 for the aggravated rape

and murder of Raymond Fife. Mr. Hill contacted the police voluntarily, seeking to

share information he claimed he possessed about the assault on Fife. During a long

and coercive interrogation by the police, the young and intellectually disabled Mr.

Hill made several erratic and inconsistent statements to the police, some of which

suggested he witnessed Timothy Combs’s assault and murder of Fife. Throughout

the extended interrogation, Mr. Hill repeatedly and unequivocally named Combs as

the sole perpetrator of the assault and murder.

At Mr. Hill’s trial, in order to convict him of aggravated murder with death

specifications, the State argued that Mr. Hill had actively participated in the assault,

rape, and murder of Fife. The crucial evidence at trial––which “established” Mr.

Hill’s active participation––was the testimony of Dr. Curtis Mertz. 1 A-5, at *16, 28–

30, 33 (the Ohio Supreme Court concluded that Mr. Hill’s theory of the case was

“overwhelmingly negated” by the bitemark evidence).

Dr. Mertz, a forensic

odontologist and the former president of the American Board of Forensic Odontology

(“ABFO”), testified that a purported bitemark on Fife’s penis was, in Dr. Mertz’s

“professional opinion, with a reasonable degree of medical certainty” made by Mr.

1 At Mr. Hill’s trial, the other evidence presented against him was circumstantial and, at most,

tended to establish the possibility that Mr. Hill was present and witnessed Combs’s assault of Fife.

There was no blood, fingerprints, or other forensic evidence that connected Mr. Hill to the crime. A-5,

at 20–21, 1196.

Hill’s teeth indentation. A-5, at 937. In 1986, when Mr. Hill was tried, ABFO

guidelines permitted odontologists, such as Dr. Mertz, to conclude that an individual

was the biter that left a bitemark indentation. A-8, at 115–16. Under that incorrect

and since-repudiated scientific standard, the ABFO guidelines endorsed a view

(broadly accepted by courts at the time) that odontologists could, with medical and

scientific accuracy, reliably identify which individual had created a particular

bitemark. At the time of Mr. Hill’s trial and for years after, this type of testimony

was widely admissible in court. See, e.g., Spence v. State, 795 S.W.2d 743, 751–52 &

n.7 (Tex. Crim. App. 1990).

Decades after Mr. Hill’s conviction, and after Mr. Hill had already

unsuccessfully challenged his conviction and sentence in federal habeas proceedings,

the field of forensic odontology underwent a seismic shift.

The individualized

bitemark identification––such as was used to convict Mr. Hill––was completely

discredited and repudiated as a science.

That process began in 2009 when the National Academy of Sciences (NAS)

released a landmark report concluding that individualized bitemark identification

lacked sufficient support to be scientifically valid. A-7, at 4–8. In particular, the NAS

concluded that there were no reliable scientific methods that permitted odontologists

to determine the uniqueness of, or lack thereof, a given bitemark such that a

particular bitemark could be associated with an individual biter with any degree of

probability. Id. at 174. Given the unscientific nature of the inquiry, “different experts

provide[d] widely differing results and a high percentage of false positive matches of

bitemarks using controlled comparison studies.” Id. The NAS report concluded that

there was no “existing scientific basis” for individualized bitemark identification. Id.

at 176.

In response to the findings of the NAS and further study, the ABFO in 2013

issued amended guidelines that drastically limited the scope of individualized

bitemark identification.

See A-8, at 117.

Those updated guidelines prohibited

forensic odontologists from identifying an individual as the “biter” in open population

bitemark identification cases. Id.

As yet more investigation into the science of bitemark identification continued,

the acceptable parameters of bitemark identification narrowed even further. A 2016

construct validity study revealed that not only were forensic odontologists unable to

reliably and accurately identify whether distinct features existed on an individual

bitemark, they were unable to reliable or accurately determine if a patterned injury

was a human bitemark at all. A-24. In response, the ABFO concluded that forensic

odontologists could not reliably or accurately conclude that any individual’s teeth had

been responsible for an individual bitemark, and further amended its guidelines to

eliminate individualized bitemark identification in all cases. See Howard v. State,

300 So.3d 1011, 1017–18 (Miss. 2020) (“And in 2016, the ABFO again revised its

guidelines and eliminated individualization entirely.”); see also Ex parte Chaney, 563

S.W.3d 239, 260–61 & n.41 (Tex. Crim. App. 2018) (“The new Guidelines, as published

in March 2016, prohibit individualization testimony in all cases”). Pursuant to the

2016 ABFO guidelines, forensic odontologists can only broadly conclude that an

individual cannot be eliminated as the potential biter (a conclusion that, as an

evidentiary matter, is nearly worthless). A-9, at 102; see also State v. Denton, No. 04R-330, 2020 WL 7232303, at *6, 13 (Ga. Super. Ct. Feb. 07, 2020) (explaining that

“cannot be excluded as the biter” testimony “will likely be deemed highly prejudicial

and of little probative value in the future”). This was not a mere change in the

scientific standards of individualized bitemark identification; rather, it was a

declaration that individualized bitemark identification was never a science at all. As

a result, “numerous decisions [have] granted relief based on the change in the ABFO

Guidelines.” Denton, 2020 WL 7232303, at *8; see also, e.g., Howard v. State, 300 So.

3d 1011, 1013 (Miss. 2020); Ex parte Chaney, 563 S.W.3d at 260–61, 278.

In response to the seismic shift in forensic science that invalidated the evidence

used to convict him, Mr. Hill promptly moved for leave to file a delayed motion for a

new trial. A-10. Mr. Hill argued that the new ABFO guidelines demonstrated

constitutional infirmities with his trial.

Id.

Finding that he was “unavoidably

prevented” from presenting this evidence earlier, the state court permitted Mr. Hill

to file a new-trial motion, and he did so in 2016. A-11. In support of his new-trial

motion, Mr. Hill included the affidavit of Dr. Franklin Wright, a forensic odontologist

and a former president of the ABFO. Dr. Wright’s new affidavit did not constitute a

mere battle of experts. A-12, at 1. Following the sea change in forensic science that

utterly discredited and invalidated individualized bitemark identification as a field

of science, Dr. Wright explained that it was simply “not possible” to determine that

Fife’s injury was caused by Mr. Hill or any other potential biter. Id. at 3–4. Even

had the wound on Fife’s genitals been made by a human bitemark––it was not––

scientifically valid methods would only have permitted a forensic odontologist to

determine whether Mr. Hill could be excluded as a potential biter, not whether he

had been the biter. Id. In any event, Dr. Wright’s review of the bitemark in Mr. Hill’s

case, pursuant to scientifically valid methods, determined that Fife’s injury was not

even a human bitemark. Id. As a result, Mr. Hill could not have been the biter. Id.

Troublingly, Dr. Wright also worked closely with Dr. Mertz, the key expert at Mr.

Hill’s trial, and had observed Dr. Mertz make extremely racist comments regarding,

and use racial epithets referring to, Mr. Hill. A-13, at 7. Further, based on his

conversations with Dr. Mertz regarding the case, Dr. Wright believes that Dr. Mertz’s

racial bias affected his analysis of, and testimony about, the alleged “bitemark.” Id.

Absent the conclusion that Mr. Hill’s teeth created the wound on Fife’s penis, Mr. Hill

was entitled to a new trial. 2

The trial court rejected Mr. Hill’s claims and––based on an arbitrary and

erroneous application of res judicata in contravention of Ohio law––refused to fairly

reexamine and apply the required standard to Mr. Hill’s case. See A-25. Ohio’s

Eleventh District Court of Appeals affirmed, A-15, and the Ohio Supreme Court

declined to accept jurisdiction, A-16.

Mr. Hill presented additional evidence of his innocence, including evidence that his

statements to the police were coerced and therefore unreliable, A-14, at 3–5, and evidence that the

trial testimony regarding the injuries to the victim was not scientifically sound, A-22, at 3.

As a result, Mr. Hill filed a habeas petition in the district court. He argued

that the invalidation of the individualized bitemark identification evidence used to

convict him rendered his trial fundamentally unfair in violation of his due process

rights and that the state court’s arbitrary adjudication of his new-trial motion

deprived him of due process. A-17, at 41–9. Instead of considering the merits of his

petition, the district court determined that it was “second or successive” and

transferred his case to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C.

§ 2244(b)(3). A-1, at 1–2.

The Sixth Circuit Court of Appeals panel found that the requirements of 28

U.S.C. § 2244(b)(2) did not apply to Mr. Hill’s petition because it was not a “second or

successive” petition as defined by this Court’s precedent and transferred Mr. Hill’s

petition to the district court for further proceedings. A-2. The Sixth Circuit Court of

Appeals vacated the panel’s order, A-3, and, sitting en banc, concluded that Mr. Hill’s

petition was “second or successive” and therefore subject to the requirements of

28 U.S.C. § 2244(b)(2), A-4.

This petition for writ of certiorari follows.

REASONS FOR GRANTING THE PETITION

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

and that of other Circuits on the same important matter.

The narrow question presented here is whether Mr. Hill’s habeas petition is

“second or successive” when the factual predicate giving rise to his claim—the

invalidation of the bitemark science used to convict him––had not yet occurred when

he filed his prior petition. That answer is straightforward: his petition is not “second

or successive” under § 2244(b), and thus he need not seek authorization to proceed in

the district court. Precedent from this Court, authority from the Circuits, and the

statutory scheme all compel that conclusion. The Sixth Circuit’s contrary conclusion

departs from that precedent and thus merits certiorari and reversal.

Decisions of this Court and other Circuits all make clear that a

second petition is not “second or successive” where the factual

predicate for the claim did not exist at the time of the prior petition.

Section 2244(b) states that “[a] claim presented in a second or successive

habeas corpus application under section 2254 that was not presented in a prior

application shall be dismissed unless” the applicant shows that (1) he relies on a new,

retroactive rule of constitutional law, or (2) “the factual predicate for the claim could

not have been discovered previously through the exercise of due diligence” and “the

facts underlying the claim, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found the applicant guilty

of the underlying offense.” 28 U.S.C. § 2244(b)(2). The statute makes clear that the

applicant must meet those heightened requirements only if his application is “second

or successive.” Id. If his application does not qualify as “second or successive,” a

habeas petitioner need not satisfy the requirements of § 2244(b), even if his

application is second-in-time.

This Court has explained that “Congress did not define the phrase ‘second or

successive,’” but “it is well settled that the phrase does not simply refer to all § 2254

applications filed second or successively in time.” Magwood v. Patterson, 561 U.S.

320, 331–32 (2010) (brackets omitted). Rather, the term “second or successive” “is a

term of art” that is “given substance in [] prior habeas corpus cases,” Slack v.

McDaniel, 529 U.S. 473, 486 (2000), including those “predating AEDPA’s enactment,”

Banister v. Davis, 140 S. Ct. 1698, 1705–06 (2020) (brackets omitted). To determine

what qualifies as “second or successive,” courts “look[] for guidance in two main

places.” Id. First, courts consider “historical habeas doctrine and practice.” Id.

Specifically, they ask “whether a type of later-in-time filing would have constituted

an abuse of the writ, as that concept is explained in [] pre-AEDPA cases.”

Id.

(brackets and quotation marks omitted); see also id. at 1707 (“Congress passed

AEDPA against this legal backdrop, and did nothing to change it” and particularly

“did not redefine what qualifies as a successive petition”). A petitioner abuses the

writ “by raising a claim in a subsequent petition that he could have raised in his first.”

McCleskey v. Zant, 499 U.S. 467, 489 (1991). Conversely, petitioners who raise claims

that they could not have raised in a prior habeas petition have not abused the writ.

Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); Medberry v. Crosby, 351 F.3d

1049, 1062 (11th Cir. 2003); Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001). If a

petitioner raises a claim that would have been an abuse of the writ under this Court’s

pre-AEDPA cases “it is successive; if not, likely not.” Banister, 140 S. Ct. at 1706.

Second, courts must consider “the implications for habeas practice” given “AEDPA’s

own purposes” of “conserv[ing] judicial resources, reduc[ing] piecemeal litigation, and

lend[ing] finality to state court judgments within a reasonable time.” Id. (quotation

marks omitted).

Two key decisions of this Court exemplify this analysis.

In Stewart v.

Martinez-Villareal, this Court held that a competency-to-be-executed claim under

Ford v. Wainwright, 477 U.S. 399 (1986) was not “second or successive” where the

petitioner included the claim in a prior petition, but the district court had dismissed

that claim as premature. 523 U.S. 637, 644–45 (1998). This Court explained that a

contrary holding “would mean that a dismissal of a first habeas petition for technical

procedural reasons would bar the prisoner from ever obtaining federal habeas

review.” Id. at 645. Then, in Panetti v. Quarterman, this Court expanded that

reasoning to Ford claims raised for the first time in a second-in-time petition.

551 U.S. 930 (2007).

This Court explained that requiring “unripe (and, often,

factually unsupported) claims to be raised as a mere formality” in the first petition

does nothing to “conserve judicial resources, reduce piecemeal litigation, or

streamline federal habeas proceedings.” Panetti, 551 U.S. at 946–47 (brackets and

quotation marks omitted). Nor would those claims be barred by the historical abuseof-the-writ doctrine, as “claims of incompetency to be executed remain unripe at early

stages of the proceedings” and so could not have been brought earlier. Id. at 947.

Likewise, this Court explained that it would not construe AEDPA “in a manner that

would require unripe (and often factually unsupported) claims to be raised as a mere

formality, to the benefit of no party.” Panetti, 551 U.S. at 947. As a result, this Court

reasoned that § 2244(b)’s statutory bar does not apply to a “claim brought in an

application filed when the claim is first ripe.” Id.

“The considerations [this] Court identified in support of its holding [in Panetti]

are not specifically limited to Ford claims.” United States v. Lopez, 577 F.3d 1053,

1064 (9th Cir. 2009); see also Long v. Hooks, 972 F.3d 442, 486 (4th Cir. 2020) (Wynn,

J., concurring) (explaining that Panetti “left the door open to other[]” exceptions to

the second-or-successive rule). That conclusion is consistent with the longstanding

history of the abuse-of-the-writ doctrine. See McCleskey, 499 U.S. at 479.

In numerous earlier decisions, the Sixth Circuit faithfully applied this Court’s

precedent in holding that “a numerically second petition is not properly termed

‘second or successive’ to the extent it asserts claims whose predicates arose after the

filing of the original petition.” In re Jones, 652 F.3d 603, 605 (6th Cir. 2010) (“In re

Curtis Jones”). “In other words, if ‘the events giving rise to the claim had not yet

occurred’ when the petitioner filed his original habeas petition, his subsequent

petition raising this claim need not meet § 2244(b)’s requirements.” In re Wogenstahl,

902 F.3d 621, 627 (6th Cir. 2018). For example, in a case with facts similar to Mr.

Hill’s, a habeas petitioner asserted claims relating to the state court’s denial of his

motion for a new trial based on new DNA test results. In re Harris, No. 17-2063, 2018

U.S. App. LEXIS 13875, at *1–3 (6th Cir. May 24, 2018). The Sixth Circuit correctly

held that the claims were not second or successive because “[t]he events giving rise

to” the claim “began in 2016 when [the applicant] first obtained that testing,” and

thus he “could not have presented those claims in a prior habeas petition.” Id.

The Sixth Circuit time and again reaffirmed this rule. See, e.g., In re BolerBey, No. 22-3542, 2022 U.S. App. LEXIS 32875, at *6 (6th Cir. Nov. 29, 2022) (“[T]he

factual predicate for that due process claim concerning the 2020 docket entry did not

arise until August 24, 2020, so that claim is not second or successive.”); In re Cox, No.

22-3729, 2023 U.S. App. LEXIS 1774, at *3 (6th Cir. Jan. 24, 2023) (“Cox’s proposed

habeas petition is not second or successive because the factual predicate for his

proposed claims did not arise until several years after his initial petition was fully

adjudicated.”). Just last year, the Sixth Circuit confirmed that when the events

giving rise to a habeas claim “have not yet occurred at the time of” the first petition,

a later application “predicated on those events is not ‘second or successive.’” In re

Jones, 54 F.4th 947, 949–50 (6th Cir. 2022) (“In re Ronald Jones”) (brackets and

quotation marks omitted).

“History and statutory context confirm[ed] this

conclusion.” Id. at 950. “American courts have long entertained repeat habeas

petitions ‘when subsequent occurring events have changed the situation of the

petitioner so as in fact to present a new case for consideration’” consistent with the

abuse-of-the-writ doctrine. Id. (citation omitted). Moreover, “this background rule

fits well with AEDPA’s underlying concerns” because “applying [the] gatekeeping

requirements to claims like [the applicant’s] could well deplete judicial resources and

increase piecemeal litigation if, say, prisoners responded by packing their first

[habeas] petitions with speculative or unripe claims.” Id.

Other Circuits “all agree”: a claim is not “second or successive” where the

factual predicate for the claim did not arise until after the first petition. Id. (citing

cases); see also In re Curtis Jones, 652 F.3d at 606 (same). For example, in Garcia v.

Quarterman, the petitioner brought a claim alleging that “the Texas courts refused

to afford review” of his case after then-president George W. Bush ordered the states

to review cases pursuant to the International Court of Justice’s Avena decision. 573

F.3d 214, 220 (5th Cir. 2009). The Fifth Circuit reasoned that since the “Bush

declaration was not issued until after [the applicant’s] first petition was denied, the

basis for his claim—Texas’s refusal to conduct the review of his conviction—did not

occur until well after proceedings on his first petition had concluded.” Id. at 223–24.

Thus, the petitioner’s claim was not “second or successive.” Id.

Until the en banc decision in this case, this factual-predicate rule was

uniformly applied by the circuits. See, e.g., United States v. Orozco-Ramirez, 211 F.3d

862, 866–71 (5th Cir. 2000) (application not second or successive where “[t]he facts

underlying th[e] claim did not occur until after [the applicant] filed his initial habeas

motion”); Brown v. Atchley, 76 F.4th 862, 864–73 (9th Cir. 2023) (same); Singleton v.

Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (same); United States v. Hairston, 754

F.3d 258, 261–62 (4th Cir. 2014) (same); Stewart v. United States, 646 F.3d 856, 863–

65 (11th Cir. 2011) (same); In re Weathersby, 717 F.3d 1108, 1110–11 (10th Cir. 2013)

(same); Restucci v. Bender, 599 F.3d 8, 9–10 (1st Cir. 2010) (same); United States v.

Obeid, 707 F.3d 898, 902–03 (7th Cir. 2013) (same).

The factual predicate for Mr. Hill’s claim did not exist at the time of

the prior petition, and thus his petition is not “second or successive.”

Mr. Hill’s petition is not “second or successive,” as this Court and the other

Circuits have defined it. Mr. Hill’s petition did not abuse the writ, because it did not

raise “a claim in a subsequent petition that he could have raised in his first.”

McCleskey, 499 U.S. at 489. And the Sixth Circuit’s contrary conclusion creates

troubling “implications for habeas practice” given “AEDPA’s own purposes” of

“conserv[ing] judicial resources, reduc[ing] piecemeal litigation, and lend[ing] finality

to state court judgments within a reasonable time.” Banister, 140 S. Ct. at 1706

(quotation marks omitted).

Critically, when Mr. Hill filed his initial petition in 1996, the bitemark science

admitted at his trial had not yet been invalidated, so he could not have asserted a

claim alleging that the bitemark science had been invalidated. See A-8, at 115–116,

117. Any earlier challenge to the bitemark testimony could have only focused on

whether the expert properly identified Hill as the “biter” under the prevailing

scientific standards at the time, and not on whether the science itself had been

invalidated. The “vital facts” necessary for Mr. Hill to bring a colorable, factually

supported, and ripe claim necessarily include the invalidation of individualized

bitemark identification.

Rivas v. Fischer, 687 F.3d 514, 534–35 (2d Cir. 2012).

Because the factual predicate underlying Mr. Hill’s claim did not occur until long

after Mr. Hill filed his original habeas petition, his petition is not “second or

successive.”

Nor would applying § 2244(b) to applications like Mr. Hill’s advance AEDPA’s

goals. An applicant must generally file his first petition within one year after the

conclusion of direct review. Panetti, 551 U.S. at 943; 28 U.S.C. § 2244(d). Yet the

invalidation of the science underlying a conviction, and the state court’s failure to

correct the conviction, will almost never occur within that timeframe. See Scott v.

United States, 890 F.3d 1239, 1249 (11th Cir. 2018) (explaining that Panetti was

concerned with the fact that “federal courts are generally unable to address [Ford]

claims within the time frame for resolving first habeas petitions”). Accordingly,

applying § 2244(b) to claims like Mr. Hill’s would encourage applicants to file

“factually unsupported” claims as “a mere formality,” just in case the science

underlying their convictions is later invalidated and the state courts then

unconstitutionally adjudicate their resulting new-trial motions. Panetti, 551 U.S. at

947. Such a rule would “demand clairvoyance—that prisoners predict their claims

before they arise.” In re Ronald Jones, 54 F.4th at 949. It would also “add to the

burden imposed on courts, applicants, and the States, with no clear advantage to

any.” Panetti, 551 U.S. at 943. And, because such claims would be dismissed as

factually unsupported, it would foreclose federal review of these types of claims

“without any clear indication that such was Congress’ intent.” Id. at 946; see Lesko

v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211, 227 (3d Cir. 2023) (“We therefore decline to

interpret § 2244(b) in a way that allows for [a particular type of] claim to completely

evade federal habeas review.”).

In this case, such a rule would penalize Mr. Hill for failing to somehow predict

the “dramatic change in the scientific understanding and acceptance of the reliability

of individualizations in bite-mark analysis in the intervening years” since his first

petition. Howard v. State, 300 So. 3d 1011, 1018 (Miss. 2020). That is not what

§ 2244(b) requires. In re Ronald Jones, 54 F.4th at 949.

And exempting Mr. Hill’s claims from the gatekeeping provisions of § 2244(b)

is consistent with § 2244’s statutory framework. The statute governs claims where

“the factual predicate for the claim could not have been discovered previously through

the exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). But, here, “[w]e are not

faced with a claim based on facts that were merely undiscoverable.” Stewart, 646

F.3d at 863. Rather, Mr. Hill “has presented a claim, the basis for which did not exist

before” he filed his previous petition. Id. (emphasis added). And “courts have been

careful to distinguish genuinely unripe claims (where the factual predicate that gives

rise to the claim has not yet occurred) from those in which the petitioner merely has

some excuse for failing to raise the claim in his initial petition (such as when newly

discovered evidence supports a claim that the petitioner received ineffective

assistance of counsel).” Obeid, 707 F.3d at 902 (emphases added). The former escapes

classification as “second or successive” while the latter does not. Id.; see also United

States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (distinguishing between claims

“based on events that do not occur until a first petition is concluded” and those

involving newly discovered evidence).

Mr. Hill’s application falls in the former

category—his application depends on newly existing facts.

His application is

therefore “not abusive by any definition.” Magwood, 561 U.S. at 346 (Kennedy,

Ginsberg, and Alito, JJ., dissenting). That means it is not “second or successive.”

The Sixth Circuit’s contrary holding conflicts with the precedent

from this Court and other Circuits.

The Sixth Circuit determined that because “the bitemark testimony [Mr. Hill]

now challenges occurred at trial,” the “factual predicates for the claim occurred at

trial,” meaning his “claim has always been ripe.” A-4, at 13. Therefore, the Sixth

Circuit concluded, Mr. Hill must now meet the § 2244(b)(2) gatekeeping provisions.

Id. at 13–14. That holding directly conflicts with this Court’s “second or successive”

jurisprudence, as well as other Circuits’ application of this Court’s precedent to claims

like Mr. Hill’s.

As explained above, precedent from this Court and the Circuits makes clear

that where the factual predicate to a claim had not yet occurred at the time of the

prior petition, a second petition raising that claim is not “second or successive.” See

supra at 11–16. Again, the factual predicate for Mr. Hill’s claim is the invalidation

of bitemark science, something that did not occur until 2013—well after he had filed

his first petition. Accordingly, as the dissent explained, “the majority’s approach

cannot be reconciled with more than two decades of Supreme Court precedent

recognizing that a second-in-time habeas petition is not second or successive when

the petitioner could not have ‘receive[d] an adjudication of his claim’ when he filed

his earlier petition, Martinez-Villareal, 523 U.S. at 645.” A-4, at 31.

Moreover, the Sixth Circuit’s holding that the “factual predicates for the claim

occurred at trial” is incorrect. A-4, at 13. The “factual predicates” for a claim are the

“‘vital facts’ underlying the claim”—i.e., “those without which the claim would

necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the

United States District Courts . . . or Rule 12(b)(6) of the Federal Rules of Civil

Procedure.” Rivas, 687 F.3d at 534–35 (citing McAleese v. Brennan, 483 F.3d 206,

214 (3d Cir. 2007) and Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)). The

invalidation of bitemark evidence is a “vital fact” to Mr. Hill’s claim—he could not

assert a claim premised on the invalidation of bitemark evidence if such an

invalidation had not yet occurred. 3 By holding otherwise, the Sixth Circuit has

essentially determined that the factual predicate for an invalidated-science claim

occurs at trial—before the science has even been invalidated. That makes no sense

as a matter of fact and law.

And because the factual predicate for Mr. Hill’s claim did not occur until 2013,

the Sixth Circuit was wrong to conclude that his claim “has always been ripe.” A-4,

at 13. “A claim is unripe when ‘the events giving rise to the claim had not yet

occurred,” In re Tibbetts, 869 F.3d 403, 406 (6th Cir. 2017) (quoting In re Curtis Jones,

652 F.3d at 605), or when it otherwise “depends on future events that may never come

to pass, or that may not occur in the form forecasted,” McInnis-Misenor v. Maine Med.

Ctr., 319 F.3d 63, 72 (1st Cir. 2003). The “events giving rise” to Mr. Hill’s claim is the

invalidation of the bitemark science, which (again) did not occur until 2013.

To illustrate the Sixth Circuit’s error, consider how the federal courts would

have adjudicated Mr. Hill’s claim if he had raised it in his first habeas petition. Mr.

While the legal basis of Mr. Hill’s due process claim may have occurred at trial, the factual

predicate—the invalidation of individualized bitemark identification—did not occur until 2013. See,

e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (distinguishing between the legal claim

and the factual predicate for the legal claim), abrogated on other grounds, McQuiggin v. Perkins, 569

U.S. 383, 391 (2013); Sims v. Subia, 2015 WL 3750450, at *17 (C.D. Cal. June 14, 2015) (factual

predicate of a claim is distinct from the “legal basis for the claim”); Jones v. Burnette, 2008 WL

2516483, at *3 (S.D. Ga. June 20, 2008) (same); Hereford v. McCaughtry, 101 F. Supp. 2d 742, 745

(E.D. Wis. 2000) (same); see also Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000) (suggesting that

factual predicates can be events at trial or evidence).

Hill would have been forced to allege either (1) that individualized bitemark

identification has been invalidated or (2) that individualized bitemark identification

would be invalidated in the future. The first claim would have lacked any factual

basis and the second claim would have been entirely speculative. So they both would

have been dismissed as frivolous. In re Tibbetts, 869 F.3d at 406; see also Rivas, 687

F.3d at 534–35 (discussing the Rules Governing Section 2254 Cases in the United

States District Courts and the Federal Rules of Civil Procedure); Jackson v. City of

Cleveland, 925 F.3d 793, 807 (6th Cir. 2019) (explaining that “a claim may not be

adjudicated on its merits unless it is ripe” and “[t]his prohibition comes both from the

case or controversy requirement of Article III and from prudential considerations.”

(citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 200–01 (1983)).

Equally unavailing is the Sixth Circuit’s factual characterization of Mr. Hill’s

claim—that it is based on a mere change in the “relevant scientific standard.” Id. at

14. It is not that the standard for individualized bitemark identification has changed

such that experts now differ as to the evidence at issue; rather, the science of

individualized bitemark identification has been invalidated and any forensic

odontologist would be unable to make the scientific conclusions Dr. Mertz made at

trial that resulted in Mr. Hill’s conviction. A-9, at 102; see Statement of the Case,

supra. In any event, that distinction has no relevance as to whether Mr. Hill’s claim

is “second or successive.” Mr. Hill had no claim when he filed his first habeas petition

because the events giving rise to the claim had not yet occurred. So, Mr. Hill could

not have “possessed, or by reasonable means . . . obtained, a sufficient basis to allege

[the] claim in the first petition.” McCleskey, 499 U.S. at 497.

In short, then, by finding Mr. Hill’s petition to be “second or successive,” the

Sixth Circuit’s decision directly conflicts with longstanding precedent from this Court

and other Circuits, and certiorari is merited.

II.

This petition presents an important issue, and Mr. Hill’s case

presents an ideal vehicle for settling it.

Whether petitions like Mr. Hill’s are “second or successive” presents an

important question, as the Sixth Circuit acknowledged by hearing the case en banc.

See A-21, at 96 (“An en banc hearing or rehearing is not favored and ordinarily will

not be ordered unless … the proceeding involves a question of exceptional

importance.”).

More specifically, the decision has troubling implications for AEDPA, the

courts, and habeas petitioners in the Sixth Circuit.

By misstating the “factual

predicate” of Mr. Hill’s claim, the Sixth Circuit’s decision will result in future newlyripened claims being improperly dismissed or wrongly subjected to the gatekeeping

provisions of § 2244(b)(2), in direct contradiction to this Court’s precedent. Panetti,

551 U.S. at 947 (holding that § 2244(b)’s statutory bar does not apply to a “claim

brought in an application filed when the claim is first ripe”). It places future habeas

petitioners in an impossible catch-22: they must raise unripe and speculative claims

in their initial habeas petitions or “’run the risk’” of “’forever losing their opportunity

for any federal review of their . . . claims.’” Panetti, 551 U.S. at 931 (citation omitted).

Put another way, it interprets AEDPA “in a manner that would require unripe (and

often factually unsupported) claims to be raised as a mere formality, to the benefit of

no party.” Panetti, 551 U.S. at 947. That will waste judicial resources, increase

piecemeal litigation, and not lend any additional finality to state court judgments.

Banister, 140 S. Ct. at 1706.

And permitting claims like Mr. Hill’s to be litigated in the district court does

not “negatively implicate AEDPA’s finality concerns any more than does the secondin-time filing of a Ford claim.” Scott, 890 F.3d at 1247; see also John H. Blume, et.al,

Killing the Oblivious: An Empirical Study of Competency to Be Executed Litigation,

82 UMKC L. Rev. 335, 355–56 (2014) (explaining that Panetti had no material impact

on the number of Ford claims filed). It simply ensures that a federal forum exists for

litigants to raise claims that they could not have raised in their first habeas petition.

Moreover, Mr. Hill’s case presents an ideal vehicle for this Court to settle this

important issue. The sole issue before the Sixth Circuit was whether Mr. Hill’s

petition is “second or successive.” Mr. Hill has consistently argued below that it is

not, and no procedural or jurisdictional barriers exist that would prevent this Court

from reaching the question presented. Thus, the question presented, and Mr. Hill’s

petition for a writ of certiorari, merit this Court’s review.

Mr. Hill’s due process claim was unripe at the time he filed his prior habeas

petition because the factual predicate of his claim––the invalidation of the science of

individualized bitemark identification––occurred decades after his prior habeas

petition was filed. As a result, Mr. Hill’s petition is second-in-time, but not “second

or successive,” and therefore not governed by the provisions of § 2244(b). The Sixth

Circuit’s contrary conclusion departs from the decisions of this Court, prior decisions

of the Sixth Circuit, and numerous decisions from its sister Circuits.

And the

implications of the Sixth Circuit’s decision undermine the purposes of AEDPA. It will

waste judicial resources by requiring petitioners to raise unripe claims in their first

habeas petition instead of ripe claims in a second-in-time petition, it will increase the

amount of piecemeal litigation in habeas proceedings, and it will not lend any

increased finality to state court judgments.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Stephen C. Newman

Federal Public Defender

Ohio Bar: 0051928

/s/ Sharon A. Hicks____________

Sharon A. Hicks (Ohio Bar: 76178)

Assistant Federal Public Defender

Counsel of Record

Office of Federal Public Defender

1660 West Second Street, Suite 750

Cleveland, OH 44113

(216) 522-4856; (216) 552-4321 (fax)

Sharon_Hicks@fd.org

Counsel for Petitioner Danny Lee Hill

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.